National Consumer Disputes Redressal
National Insurance Co.Ltd. vs Rajesh Ohri on 25 July, 2011
The present revision petition has been filed by the New India Assurance Co NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2002 OF 2007 (From the order dated 19.03.2007 in Appeal No.1271/01 of the State Commission, Punjab) National Insurance Co. Ltd. Petitioner Versus Rajesh Ohri Respondent BEFORE : HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioner : Mr.Ram Ashray, Advocate for Mr.S.L. Gupta, Advocate For the Respondent : Mr.Mukund Gupta, Advocate Pronounced on 25th July, 2011 ORDER
PER VINEETA RAI, MEMBER The present revision petition has been filed by the National Insurance Co. Ltd. (hereinafter referred to as the Petitioner) against the order of the State Consumer Disputes Redressal Commission, Punjab (hereinafter referred to as the State Commission) in Appeal No.1271/01. Rajesh Ohri who was the original complainant before the District Forum is the Respondent herein.
Respondent in his complaint before the District Forum has contended that he is the owner of a Truck bearing registration No. PB-07-E-7110 which was got comprehensively insured from the Petitioner from 06.10.1998 to 05.10.1999 for Rs.6 lakhs.
The Truck met with an accident and was badly damaged on 27.04.1999 in the area of Village Kunka, PS Amer, District Jaipur while it was being driven by one Sucha Singh. An intimation about this was conveyed inter alia to the Petitioner/Insurance Company. Necessary documents etc. were also provided so that the insurance claim could be settled.
While the Surveyor appointed for the purpose after survey assessed the loss at Rs.89,322.76p, the claim of the Respondent was repudiated on the grounds that the driving licence of Sucha Singh was fake. Respondent challenged this repudiation and stated that the driver had a valid driving licence and this was subsequently renewed from the Licensing Authority, Hoshiarpur. This was confirmed from the District Transport Authority (DTA), Hoshiarpur. Further, the Respondent before employing the driver took his driving test to satisfy himself that he was hiring a proficient driver. Keeping in view these facts, the claim was wrongly repudiated. Respondent, therefore, filed a complaint before the District Forum requesting that Petitioner be directed to pay him Rs.4 lakhs as compensation for the damage to the truck, Rs.50,000/- for harassment along with interest @ 18% from the date of accident till realization with costs.
Petitioner while admitting that the Truck was insured with it and that following the accident the Surveyor had assessed the loss at Rs.86,322.76p has stated that after verification it was found that the driver Sucha Singh was having a fake/forged licence and, therefore, the claim was rightly repudiated.
The District Forum after examining the evidence and documents filed by both parties allowed the complaint and directed the Petitioner to pay the Respondent, Rs.86,322.76p with interest @ 12% from 01.10.1999 as well as Rs.500/- by way of costs within one month. The operative part of the order of the District Forum reads as follows:
In the instant case, truck driver Such Singh was having a driving licence at the time of accident which was renewed by the District Transport Authority, Hoshiarpur as the Licensing Authority admits that it renewed the driving licence of Sucha Singh from 14.01.1999 to 13.01.2002, whereas, the accident took place on 27.04.99. How, in these circumstances, can it be said that the driver was not holding a valid driving licence as he is holding a licence which was renewed by the competent licencing authority.
Learned counsel for the complainant has drawn our attention to National Insurance Co. Vs. Surjeet Kaur, 2001(2) Recent Civil Report, Page 248 (P&R). In the above citation, it was observed that the onus is very heavy on the insurance company to show that he driver had no valid driving licence or the owner committed deliberate breach of conditions of the policy. It was further observed that it cannot be presumed that the owner handed over the vehicle to a person having no valid licence fully knowing the fact. He can also not be expected to first verify the validity of the licence from the Licensing Authority.
In the instant case, firstly the insurance company was to establish through cogent and convincing evidence that the driver was not holding valid driving licence at the time of accident.
This driving licence has been renewed from 16.01.1996 to 15.01.1999 and from 14.01.1999 to 13.01.2002. As such, it can safely be held that at the time of accident the driver was holding a valid driving licence. Secondly, the licence having been validly renewed would be a valid driving licence as at the stage of issuing such a licence certain formalities are required to be observed under section 15 of the Motor Vehicles Act. The fact cannot be lost sight of that the driver may be using the motor vehicle for a number of years and thus knowing driving, gets his licence renewed from a competent authority. It is proved that when Sucha Singh was engaged by the complainant he was satisfied that Sucha Singh was an efficient driver. It is also proved that the complainant had checked up the renewed driving licence at the time of employment.
In view of the above discussion, we are of the considered opinion that the claim was wrongly rejected by the opposite party and thus they rendered deficient services to the complainant.
Aggrieved by this order, Petitioner filed an appeal before the State Commission which dismissed the appeal by observing that the case was squarely covered by a judgment of that Commission in Oriental Insurance Company Vs. Mehardeen 2006(1) CLT 57. In that case, the State Commission citing a number of judgments, including the judgments of the Apex Court in United India Insurance Co. Ltd. Vs. Lehru & Ors. AIR 2003 SC 1292 and National Insurance Co.Ltd. Vs. Swaran Singh 2004 ACJ 1(SC) and of the National Commission in National Insurance Co. Ltd. Vs. Sant Kumar Goyal 2005(1) CPR 45 (NC) inter alia concluded that the Insurance Company cannot repudiate the claim in the absence of evidence to prove that the driving licence was fake to the knowledge of the owner of the insured vehicle. The State Commission, therefore, upheld the order of the District Forum but reduced the rate of interest from 12% to 9%.
Hence, the present revision petition.
Counsel for both parties made oral submissions. Learned Counsel for Petitioner stated that the fora below erred in not appreciating an important point of law that a fake driving license on its renewal cannot make it a valid and effective licence, particularly in view of judgement of the Honble Supreme Court in National Insurance Co. Vs. Laxminarayan Dhut (Civil Appeal No.1140 of 2007 decided on 02.03.2007) in which the Apex Court had inter alia held that once the original licence is fake, renewal cannot take away its effect. In the instant case, it had been proved that the original license was fake and, therefore, subsequent renewals of the same by the Licencing Authority cannot make it a valid driving licence. In support of his contention, Counsel for Petitioner also cited an order of this Commission in The New India Assurance Co. Vs. Purna Chandra Jain (R.P.No.1427 of 2007 decided on 07.07.2011) wherein this Commission relying on a judgment of Honble Supreme Court in United India Insurance Co. Ltd. Vs. Davinder Singh 2007 (8) SCC 698, had held that if the original licence is fake its renewal cannot cure the inherent fatality. Counsel for Petitioner further stated that the decision in Swarn Singhs case (supra) which has been relied upon by the learned Fora below has no application to own damage claims and are only applicable in respect of third party claims. In the present case, the submission of the Respondent that the District Transport Authority, Hoshiarpur records had confirmed that the licence was in fact renewed by the DTA (also recorded as a finding by the District Forum) cannot sustain in view of the evidence produced by the Petitioner that the licence was fake in the form of an affidavit (Exhibit R-7) of the Divisional Manager, H.S. Chawla. In that affidavit, it was affirmed that on verification from the Licensing Authority, Gurdasrpur, it was confirmed that no such licence had been issued by that Authority. Taking into totality all the above facts, the claim was rightly repudiated.
Counsel for Respondent reiterated that it was not in dispute that the driving licence had been renewed twice by the District Transport Authority at Hoshiarpur and it was also confirmed that Sucha Singh was a proficient driver. On the other hand, the Petitioner on whom the onus was to do so had failed to prove that the original licence was a fake because the affidavit filed by the Divisional Manager relied upon by Counsel for Petitioner was not by in itself a proof in the absence of any convincing evidence including the evidence of Gurdaspur Licencing Authority specifically stating that the licence was fake.
We have heard learned counsel for both parties and have gone through the relevant records.
The accident and the damages caused to the Truck are not in dispute in the present case. The claim was repudiated on the grounds that in violation of the terms and conditions of the insurance policy, the driver of the insured Truck did not have a genuine driving licence. Both parties have quoted various judgements in support of their cases. We do find merit in the contention of the counsel for the Petitioner based on the judgments cited of the Honble Supreme Court as well as of this Commission that in cases of own damage claims, a fake driving licence which is ab initio fake, even on its genuine and bonafide renewal by the competent authority cannot make it a valid and effective licence and, therefore, once the original licence is fake, renewal cannot take away its effect. However, in the instant case, the Petitioner/Insurance Company on whom the onus was placed to do so has not been able to produce credible evidence to conclusively prove that the original licence was fake. The only evidence submitted is an affidavit of the Divisional Manager of the Petitioner/Insurance Company which states that verifications made from the District Transport Office, Gurdaspur had indicated that the licence as purported had not been issued by that office to Sucha Singh.
No affidavit or letter from the District Transport Office, Gurdaspur has been produced by the Petitioner to further support the contentions made in the affidavit of the Divisional Manager.
Counsel for Petitioner also admitted before us during oral submissions that Petitioner had not produced either an affidavit or a letter from District Transport Office in this respect before the Fora below. Obviously, in the absence of this, the affidavit of the Divisional Manager of the Petitioner/Insurance Company has little evidentiary any value and we are, therefore, unable to accept the Petitioners contention that it was conclusively proved that the original licence of the driver Sucha Singh was fake.
We, therefore, have no option but to dismiss the present revision petition and confirm the order of the State Commission.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/