Decision

Written decision for Kumari Transport Limited (OK2012558)

Published 20 November 2020

In the South Eastern and Metropolitan Traffic Area.

Decision of the Deputy Traffic Commissioner.

Public Inquiry heard at Ivy House, Ivy Terrace, Eastbourne on 2 November 2020.

1. Decision

Breach of Section 26(1) (c) (ca) and (f) of the Goods Vehicles (Licensing of Operators) Act 1995 found

Licence suspended for twenty-one consecutive days with effect from 00.01 hours on the 16 November 2020. Repute of operator severely tarnished.

DVSA requested to conduct follow up investigation into compliance six months from the date of the public inquiry

Repute of transport manager Indu Shakya retained but severely tarnished

Abkash Shrestha approved as transport manager with immediate effect.

2. Background

The operator Kumari Transport Limited is the holder of a standard national licence granted on the 6 August 2018 authorising one vehicle. The directors of the company are Juni Shakya and Akbash Shrestha and Indu Shakyi is the transport manager. There is a pending application to approve Akbash Shrestha as the transport manager.

An investigation was conducted into this operator by Traffic Examiner Bradbury commencing on the 12 February 2019. The report raised concerns that the operator had not been conducting any downloading or analysis of driver cards or vehicle unit data, there was an absence of a disciplinary procedure and no drivers’ handbook. Further analysis of data by Mr Bradbury revealed that a driver Kundan Shakya (the husband of director Juni Shakya) had committed a total of 75 offences including 35 occasions when he had used digital tachograph cards belonging to other drivers. Mr Shakya said in interview that he had previously driven for a company Entyre Transport Limited and it was the director of that company Gurdial Athwal who had given him one of the cards to use.

In light of the concerns the operator was called to public inquiry and four drivers including Kundan Shakya were called to concurrent driver conduct hearings. My decision in relation to those drivers will be sent under separate cover. The case was heard on the same day as the inquiry in relation to Entyre Transport Limited.

3. The Public Inquiry

Juni Shakya, Indu Shakya and Akbash Shrestha attended the public inquiry and were represented by counsel Mr Davies. Mr Davies explained that Indu Shakya, who had been transport manager between 12 February 2019 and the present, is Kundan Shakya’s brother. Akbash Shrestha who is the proposed transport manager is Juni Shakya’s brother.

4. Evidence

Traffic Examiner Bradbury presented his evidence and confirmed the content of his original report and the conclusions he had reached. More recent data had been provided to him in advance of the inquiry and he detailed his findings in relation to this material. This showed discrepancies but these were not attributable to occasions when drivers were employed by this operator apart from a mode switch error and one occasion of continuous driving limit being exceeded by 6 minutes when an infringement report had been produced.

Juni Shakya had submitted a statement in advance of the inquiry and she confirmed the contents of this. She said that she had been new to the transport business when the licence was granted but as soon as she knew about what was wrong, she had started to get things straight. The problems had been with the driver who was her husband who she had trusted. Parvinder Athwal had been the transport manager when the licence was granted, and Mr Shakya had thought she was going to do more in that role. She had detailed in her statement the defects that led to prohibitions being issued whilst the licence was in force.

Indu Shakya said that he become the transport manager as soon as he was qualified to do so. He said that he had not been the transport manager during the time that the offences were being committed by Kurdan Shakya. He had set up systems since then and advised Juni how to deal with the infringement reports. Overall, the operator was more confident and knowledgeable in relation to what is required for compliance. He was stepping down as transport manager so that his brother in law Abkash Shrestha can take over because he lives nearer to the operator and it will be easier for him to carry out the functions required.

Mr Davies submitted that I can be confident that this operator can be trusted, and the licence should be allowed to continue. He outlined the consequences of regulatory action that I may consider taking but asked me to consider whether I needed to do so.

As there was uncertainty over the period covered by Parvinder Athwall as transport manager I contacted her after this case had concluded through her representative Mr Backhouse and she responded by saying that she had been the transport manager for Kumari for the period from grant until 4 November 2018. E mails from Juni Shakya and Indu Shakya which were supportive of this were attached to her reply. It appeared that between 4 November and 12 February 2019 she had been kept on the DVSA record but was not in fact in post. The offence details for Kundan Shakya span from the 6 June 2018 when he was working for Entyre Transport Limited to the 20 January 2019. In an e mail sent by Indu Shakya to Traffic Examiner Bradbury he stated that he had replaced Mrs Athwall as transport manager on the 4 November 2018 but in fact was not officially authorised on the DVSA record until the 12 February 2019. Mrs Athwal said that she undertook the role until the November 2018. Indu Shakya in response said that he had not taken over until his appointment was approved although he realises that he should have been overseeing compliance in any event as a director and CPC holder at that stage.

5. Findings and Decision

The offences committed by Kundan Shakya are at the most serious end of the scale of drivers’ hours offences. It appears that through a combination of lack of diligence, knowledge and confusion over who was undertaking the transport manager role the operator neglected to check on and manage the drivers’ hours effectively. This omission by the operator and transport managers is a significant and serious failing.

On the positive side of the balancing exercise the analysis of more recent data by Mr Bradbury gives a more positive picture of compliance It is also the case that this is the first experience the operator has had of a public inquiry and there are no negative maintenance findings beyond the prohibitions being issued.

There have been breaches of Sections 26 (1) (c) (ca) and (f) of the Goods Vehicles Act, 1995 in this case. As a result of these breaches and my findings detailed above I have to ask myself the question set out in the case of Priority Freight Limited & Paul Williams i.e. how likely is it that this operator will operate in compliance with the operator’s licensing regime? In other words, can the operator be trusted going forward? My response is to say that the changes now made allow me to answer in the positive, but it is a decision I have considered and balanced very carefully. The failings of the operator in the past cannot be ignored when considering the likelihood of compliance in the future. The repute of the operator is severely tarnished as this is a borderline case between allowing the licence to continue and putting the operator out of business.

As regards the transport managers I have dealt with Parvinder Athwal in relation to Entyre Trasnport Limited. Indu Shakyu was a director and a CPC holder during the time that very serious offences were being committed by Kundan Shakya his brother. I conclude therefore that he should have taken action to detect and deal with the problem. I do not accept that the delay in formally approving his appointment meant that he was exempt from responsibility. I therefore mark his repute as a transport manger as severely tarnished.

These were deliberate acts committed by Kundan Shakya which compromised road safety. The absence of sufficient oversight by transport managers and directors was a compounding factor. I conclude therefore that this case is in the serious to severe category as explained in Statutory Document 10 issued by the Senior Traffic Commissioner. My decision is to order suspension of the licence for twenty-one consecutive days with effect from the 16 November 2020.

I approve the appointment of Abkash Shrestha as a replacement transport manager for Indu Shakya.

I also request that the DVSA conduct a follow up investigation in six months to determine whether the improved compliance levels have been sustained. If there are significant failings the operator can expect to return to public inquiry where, in my view, it is unlikely the licence will survive.

John Baker

Deputy Traffic Commissioner

5 November 2020