State Consumer Disputes Redressal Commission
M/S Gupta Trading Co., Commission ... vs National Insurance Co. Ltd on 29 November, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.877 of 2005
Date of institution : 28.6.2005
Date of decision : 29.11.2010
M/s Gupta Trading Co., Commission Agents, Bhawanigarh through its Prop. Shri
Satish Kumar s/o Shri Ram Lal, r/o Anaj Mandi, Bhawanigarh, District Sangrur.
.......Appellant
Versus
National Insurance Co. Ltd., Sangrur through its Divisional Manager, Leela
Bhawan Market, Patiala.
......Respondents
First Appeal against the order dated 3.5.2005 of the
District Consumer Disputes Redressal Forum,
Patiala.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the appellant : Shri Suresh Goel, Advocate. For the respondents : Shri Rajesh Verma, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
The appellant was the owner of truck bearing registration certificate No.PB- 13-H-8895. It was purchased in the name of the firm M/s Gupta Trading Company, Commission Agents owned by Satish Kumar. The vehicle was insured with the respondent Insurance Company for the period from 6.12.2002 to 5.12.2003 for an amount of Rs.5,50,000/-. Karamjit Singh was its driver who was having valid and effective driving licence.
2. It was further pleaded that on the night intervening 19/20.1.2003 when the vehicle was being driven by Karamjit Singh driver, it met with an accident. Extensive damage was caused to the truck. The matter was reported to the police. Information was also given to the respondents. The respondents had deputed the First Appeal No.877 of 2005. 2 surveyor. However the insurance claim was repudiated by the respondents. Hence the complaint for insurance claim. Compensation, interest and costs were also prayed.
3. The respondents filed the written statement. It was admitted that the appellant was the owner of the truck bearing registration certificate No.PB-13-H- 8895 and it was insured with the respondents for the period from 6.12.2002 to 5.12.2003. It was also not denied that Karamjit Singh was driving this truck and it had met with an accident on the night intervening 19/20.1.2003. It was also admitted that the respondents had appointed Er. B. Towheed, Surveyor and Loss Assessor and thereafter Er. Rajesh Aggarwal Surveyor/Loss Assessor was deputed to assess the loss. It was also admitted that the insurance claim was repudiated.
4. However the version of the respondents was that the original driving licence of Karamjit Singh who was driving the truck at the time of accident was found to be fake. The respondents had informed the appellant vide letter dated 18.9.2003 that the driving licence of Karamjit Singh originally taken from the Licensing Authority, Cuttack was found to be fake. The appellant had failed to respond. Thereafter the letter dated 7.10.2003 was again written to him. The appellant through his letter dated 28.10.2003 had given another driving licence of Karamjit Singh allegedly issued by the Licensing Authority, Hoshiarpur. The respondents got it verified from the Licensing Authority, Hoshiarpur. It was also found to be fake and its intimation was given to the appellant. The letter dated 13.8.2004 was again sent to the appellant but the appellant had failed to respond. Ultimately the claim of the appellant was repudiated by the respondents on 31.8.2004. The repudiation was legal and valid. Hence dismissal of the complaint was prayed.
5. Satish Kumar appellant filed his affidavit Ex.C-1. He also proved documents Ex.C-2 to Ex.C-11.
6. On the other hand, the respondents filed the affidavit of I.P.S. Hira, Divisional Manager as Ex.R-1 and the affidavit of V.K. Mehta, Surveyor/Loss First Appeal No.877 of 2005. 3 Assessor as Ex.R-2. The respondents also proved documents Ex.R-3 and Ex.R-4. They also filed the affidavit of Harjit Singh, IPS (Retd.) as Ex.R-5. The report of the investigator was proved as Ex.R-6. They further filed the affidavit of Ranjan Dass, Investigator as Ex.R-7 and proved documents Ex.R-8 to Ex.R-12. They also filed the affidavit of Er. Rajesh Aggarwal as Ex.R-13 and proved the documents Ex.R-14 to Ex.R-24.
7. Learned District Forum considered the pleadings of the parties and the affidavits/documents placed on file by them and dismissed the complaint vide impugned order dated 3.5.2005.
8. Hence the appeal.
9. The submission of the learned counsel for the appellant was that the appeal be accepted, the impugned judgment dated 3.5.2005 be set aside and the respondents be directed to pay adequate insurance claim with compensation, interest and costs.
10. On the other hand, the submission of the learned counsel for the respondents was that there was no merit in the present appeal and the same be dismissed.
11. Record has been perused. Submissions have been considered.
12. The admitted facts are that Satish Kumar owner of M/s Gupta Trading Co., Commission Agent, Bhawanigarh was the owner of truck bearing registration certificate No.PB-13-H-8895. It was insured with the respondents for the period from 6.12.2002 to 5.12.2003 for an amount of Rs.5,50,000/-.
13. It was also admitted that the truck had met with an accident on the night intervening 19/20.1.2003 when it was being driven by Karamjit Singh.
14. The only point of controversy was whether Karamjit Singh was holding a valid driving licence at the time of accident or not.
15. A copy of the driving licence of Karamjit Singh has been proved as Ex.C-3. The report of the District Transport Officer, Patiala has also been proved as Ex.C4 in which it was proved that the driving licence of Karamjit Singh was validly First Appeal No.877 of 2005. 4 renewed at entry no.17426/R/96 for the period from 9.12.1996 to 8.12.1999. It was again renewed vide entry No.7764/R/99 which was valid for the period from 20.8.1999 to 19.8.2002. It was again renewed at entry No.5250/R/2002 which was valid from 9.8.2002 to 8.8.2005. However the original driving licence of Karamjit Singh was issued by the Licensing Authority, Cuttack at driving licence No.4534/88.
16. The report of the Licensing Authority, Cuttack has been proved as Ex.R-9 according to which the driving licence at serial No.4534/88 was issued in the name of Pravakar Patra and not in the name of Karamjit Singh. Therefore the original driving licence of Karamjit Singh was found to be fake, although the renewals got done from the District Transport Officer, Patiala were found to be legal and valid.
17. The law has been settled by the Hon'ble Supreme Court in the judgment reported as "National Insurance Co. Ltd. vs. Laxmi Narain Dhut" III (2007) CPJ 13 (SC) in which it was held that a fake driving licence even if renewed validly will not become valid. It was also held in this judgment that the principles of law laid down by the Hon'ble Supreme Court in the judgment reported as "National Insurance Co. Ltd. vs. Swaran Singh" 2004(3)SCC297 applied only in third party claims and do not apply in 'own damage' cases. It was held by the Hon'ble Supreme Court in Laxmi Narain Dhut's case (supra) as under:-
"35. In view of the above analysis the following situations emerge:
(1) The decision in Swaran Singh's case (supra) has no application to cases other than third party risks. (2) Where originally the licence was a fake one, renewal cannot cure the inherent fatality.
(3) In case of third party risks the insurer has to indemnify the amount and if so advised to recover the same from the insured.
(4) The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act." First Appeal No.877 of 2005. 5
18. This view of law laid down by the Hon'ble Supreme Court in Laxmi Narain Dhut's case (supra) was reiterated by the Hon'ble Supreme Court in the subsequent judgment reported as "United India Insurance Co. Ltd. vs. Devinder Singh" 2008(1)Consumer Protection Cases 1 (SC). It is, therefore, clearly made out that where the driving licence of the driver, who was driving the vehicle at the time of accident, is found to be fake originally, the owner would not be entitled to compensation from the Insurance Company arising out of the insurance policy as the fake driving licence amounts to breach of the terms of the insurance policy.
19. The appellant had again placed the driving licence of Karamjit Singh having No.8212-R/EN dated 21.10.2003 issued from the District Transport Officer, Hoshairpur Ex.R-20 which was valid for the period from 21.10.2003 to 4.11.2006. It was renewed only. Its old number was 3767/RN which was valid upto 5.11.2003. The respondents have produced on the file a copy of the entry No.3767/RN from the office of District Transport Officer, Hoshiarpur which reveals that this driving licence was renewed for the period from 6.11.2000 to 5.11.2003. This entry is the part of the report of the investigator Ex.R-6. That was valid only for scooter and LTV. The original driving licence number was 600/NAC/97-98.
20. The original entry at serial No.600 from the register of the District Transport Officer, Hoshiarpur was also a part of the investigation report Ex.R-6. It was valid for the period from 17.4.1997 to 16.4.2000. This entry was found to be overwritten. Moreover it was valid only for scooter/LTV and was not valid for driving the truck.
21. In this regard reliance can be placed on the judgment of Hon'ble Supreme Court reported as "New India Assurance Co. Ltd. v. Prabhu Lal" AIR 2008 SUPREME COURT 614, in which the facts were that the driver was driving TATA-709 vehicle which was a transport vehicle while he was holding the driving licence for 'light motor vehicle' (LMV) without having an endorsement of First Appeal No.877 of 2005. 6 'transport vehicle' under Section 3 of the Motor Vehicles Act, 1988. In these circumstances, it was held by the Hon'ble Supreme Court as under:-
"28. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive Light Motor Vehicle. The learned counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive Light Motor Vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is 'Light Motor Vehicle', but falls under the category of Transport Vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply Light Motor Vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive Light Motor Vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and Insurance Company could not be held liable.
29. We find considerable force in the submission of the learned counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under clause (47) of First Appeal No.877 of 2005. 7 Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question."
22. The Hon'ble Supreme Court in Prabhu Lal's case (supra) distinguished the judgment reported as "Ashok Gangadhar Maratha vs. Oriental Insurance Company" (1999) 6 SCC by observing as under:-
"31. It is no doubt true that in Ashok Gangadhar, in spite of the fact that the driver was holding valid driving licence to ply Light Motor Vehicle (LMV), this Court upheld the claim and ordered the Insurance Company to pay compensation. But, in our considered opinion, the learned counsel for the Insurance Company is right in submitting that it was because of the fact that there was neither pleading nor proof as regard the permit issued by the Transport Authority. In absence of pleading and proof the Court held that, it could not be said that the driver had no valid licence to ply the vehicle which met with an accident and it could not be deprived of the compensation. This is clear if one reads paragraph 11 of the judgment, which reads thus:
"11. To reiterate, since a vehicle cannot be used as transport vehicle on a public road unless there is a First Appeal No.877 of 2005. 8 permit issued by the Regional Transport Authority for that purpose and since in the instant case there is neither a pleading to that effect by any party nor is there any permit on record, the vehicle in question would remain a light motor vehicle. The respondent also does not say that any permit was granted to the appellant for plying the vehicle as a transport vehicle under Section 66 of the Act. Moreover, on the date of accident the vehicle was carrying any goods, and though it could be used to have been designed to be used as transport vehicle or goods-carrier, it cannot be so held on account of the statutory condition contained in Section 66 of the Act.
(Emphasis supplied)
32. In our judgment, Ashok Gangadhar does not lay down that the driver holding licence to drive a Light Motor Vehicle need not have an endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable."
23. Therefore, it is clearly proved that Karamjit Singh was not having the valid driving licence when he was driving truck No.PB-13-H-8895 on the night intervening 19/20.1.2003 and when it had met with an accident.
24. Therefore the insurance company cannot be held liable to pay the insurance claim.
First Appeal No.877 of 2005. 9
25. The submission of the learned counsel for the appellant was that the owner had checked the driving licence of Karamjit Singh when he was appointed as a driver and Karamjit Singh had shown his driving licence to the appellant.
26. However this submission does not save the owner when the driving licence of the driver was found to be fake.
27. Therefore there is no merit in the present appeal and the same is dismissed.
28. The arguments in this case were heard on 19.11.2010 and the order was reserved. Now, the order be communicated to the parties.
29. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(MRS. AMARPREET SHARMA)
MEMBER
November 29 , 2010 (BALDEV SINGH SEKHON)
Bansal MEMBER