State Consumer Disputes Redressal Commission
New India Assurance Company Limited vs Dinesh Chandra Porwal on 7 November, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 07.11.2008 First Appeal No.712/2004 (Arising from the order dated 07.07.2004 passed by District Forum( New Delhi) K.G. Marg, New Delhi in Complaint Case No.1179/2001) New India Assurance Company Limited, Appellant Jeevan Bharti Building through Mr. Vivek Sharma Connaught Place, New Delhi. advocate, Versus Sh. Dinesh Chandra Porwal, . Respondent S/o Sh. B.L. Porwal, SF-109-B, Pitam Pura, Delhi Office Gulshan Gurest House, Roshanara, Delhi. CORAM: Justice J.D. Kapoor, ... President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. Against insurance claim covering risk of fire, damage due to accident or theft of a vehicle, the appellant has been held guilty for rejecting the claim of the respondent on the premise of driving license of the driver being fake and has been vide impugned order dated 07.07.2004, directed to pay the claim of Rs.1,75,000/- together with interest @9% from 01.01.2001 besides Rs.10,000/- as cost of litigation.
2. Feeling aggrieved the appellant has preferred this appeal.
3. The admitted case as to the damage to the vehicle is that respondent is the owner of truck number DL-1G-8321 and the same was got insured with the appellant for the period commencing from 15.01.2000 to 14.01.2001 vide policy number 311400/31/99/14519 for Rs.3,15,000/- with unlimited third party property damage cover. It is further submitted that the above truck met with an accident when it was going from Sonepat to Daman on National Highway No.8 on 05.10.2000 at Ambrary Police Station Ambamana District Udaipur, Rajasthan and FIR to that effect was lodged vide FIR No.421/2000 dated 05.10.2000 at 11.30 PM and the information of the same was duly conveyed to the appellant. Further that at the time of the said accident the truck was being driven by one Sh. Surinder Singh who had valid driving license No.DLF 2178197 which was duly renewed from 30.03.2000 to 29.03.2003 from Regional Transport Authority, Ajmer Rajasthan and thereby the driver was fully and legally authorised to drive the vehicle. Further that the above insured truck was badly damaged and it was repaired and an amount of Rs.1,75,000/- was spent for repairing, for which appellant is liable to make the entire payment and the claim form was submitted with the appellant vide claim No.2000/382 and completed all the formalities a surveyor was appointed but the appellant did not settle the claim and no payment was made. Further that due to the negligence on the part of the appellant, the claim was not settled and respondent suffered immensely.
4. While justifying the rejection of the claim, the appellant averred that the driver who was driving the vehicle at the time of accident was not holding a valid license to drive the vehicle. That the license originally was issued from Guwahati, Assam and the representative of the appellant had visited the Regional Transport Office from where it was issued and an application was moved with the issuing authority who had returned the same in original with the remarks that DL No. S-11932/Guwahati/ Assam was not issued from this end and therefore the renewal of the license by Transport Authority Ajmer is of no consequence when the original license issued by the Transport Authority Kamrup is fake whereby the driver of the respondent was not competent enough to drive the vehicle at the time of accident and therefore the claim of the respondent was rejected vide letter dated 23.02.2001 after due application of mind and considering the terms and conditions of the policy issued in favour of the respondent, therefore the claim of the respondent was not maintainable.
5. In support of its contentions that if the original license is found to be fake subsequent renewed license cannot cure the inherent fatality and therefore entitles the insurance company to reject the claim. Though in case of third party risk the insurer has to indemnify the amount and can, if so advised, recover the same from the insured, the learned counsel has placed reliance upon the judgement of Supreme Court in National Insurance Co. Ltd., Vs Laxmi Narain Dhut (2007) 3 Supreme Court Cases 700, wherein final observations made by the Supreme Court are as under:-
As noted above, the conceptual difference between third party right and own damage cases has to be kept in view. Initially the burden is on the insurer to prove that the license was a fake one. Once it is established the natural consequence have to flow:
In view of the above analysis the following situations emerge:
(i) The decision in Swaran Singh case, has no application to cases other than third party risks.
(ii) Where originally the license was a fake one, renewal cannot cure the inherent fatality.
(iii) In case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured.
(iv) The concept or purposive interpretation has no application to cases relatable to Section 149 of the Act.
6. In the instant case the driver got the license No. S-11932 issued from Kamrup Transport Authority which was certified to have not been issued by the said authority but thereafter did not take steps to certify whether the renewed license issued from Transport Authority Ajmer was also a fake license or not.
7. Even if we accept the contention of the counsel for the appellant that the original license was fake license and therefore the renewed license was of no consequence still the fact of this case are distinguishable as the concept or defence of the license being fake cannot be applied or invoked as a rule of thumb or in other cases of damage to the vehicle, even if it is not by way of accident, while being driven by the driver who is in possession of fake driving license. If a driver causes an accident to the vehicle and later on is found to be in possession of fake license the insurer may be justified in invoking the ratio of the judgement of the Supreme Court but if the element of damage to the vehicle by way of not being driven by the driver is wanting then the rejection of claim on the premise of driving license being fake may not be justified and is not sustainable.
8. However, in the instant case there is version of the respondent that the vehicle caught fire while it was stationary and not when it was being driven by the driver or by way of accident that might have occurred due to negligence of the driver. We have perused the FIR which was registered by the Head Constable, who saw the truck in question catching fire. The version of the Head Constable is that when he alongwith constable Jitender reached in front of J.M. Marble Factory he saw one truck HR 38 B 1378 loaded with the clothes and another truck HR 4S-4772 was trying to overtake this truck and when it was overtaking another truck DL IG 8321, which was coming from opposite direction collided with truck HR 4 S 4772 and that truck in the process collided with the truck in question and caught fire. The crowd collected there and extinguished the fire. The drivers of the truck HR 4S 4772 which was hit by truck DL IG 8321 coming from opposite side died on the seat itself due to heavy impact. Since truck in question was loaded with the clothes the clothes caught fire and in the process truck got damaged.
9. The aforesaid version of Head Constable which is an independent version does not bring out the case of accident committed by the driver of the truck in question or the negligence of the driver but was due to negligence of drivers of other two trucks that the damage to the truck in question occurred. Had this truck been involved in this accident, independent of aforesaid peculiar kind of accident, the theory of truck driver having been in possession of fake license could have been invoked, not otherwise.
10. However driving of truck without any authority or valid licence may be an offence under any other law, but so far as the insurance cover of a vehicle for damage by way of accident, loss by way of theft or due to fire is concerned that has to be independently assessed in the light of the facts and circumstances of its case and not in routine manner or stereotype way.
11. The aforesaid facts persuade us to dismiss the appeal but for different reasons and not for the reasons provided by the District Forum that the appellant failed to verify the genuineness of the renewed license having been issued by Ajmer Transport Authority after equipping itself with the report of Kamrup Transport Authority that the original license was not issued by the said authority. Our reasons are apparent and altogether different.
12. However in the given facts and circumstances of the case, we do not deem that it was a case where interest should have been awarded on equitable ground as interest is awarded by way of compensation if there are equitable grounds and not where there is no term of contract between the parties as to the liability of the OP to pay interest in a particular eventuality.
13. In the result, the appeal is partly allowed, by maintaining the direction to pay Rs.1,75,000/- and cost of litigation and set aside the rest of the order.
14. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
15. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 07th day of November 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri