National Consumer Disputes Redressal
Oriental Insurance Company vs Shakir Ali & Anr. on 6 March, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 819 OF 2016 (Against the Order dated 14/01/2016 in Appeal No. 2825/2013 of the State Commission Uttar Pradesh) 1. ORIENTAL INSURANCE COMPANY THROUGH ITS BRANCH MANAGER, C-V-2-85, RAGHUVANSHI COMPLEX, VAMULA ROAD, CIVIL LINES, BAREILLY UTTAR PRADESH ...........Petitioner(s) Versus 1. SHAKIR ALI & ANR. S/O SRI RASHID ALI, R/O MOHALLA-BARA BAZAR, KASBA, P.S. AND TEHSIL BHOGAON, DISTRICT-MAINPURI UTTAR PRADESH-205001 2. SRI P.C. AGRAWAL, DEVELOPMENT OFFICER, O.I.CO. LTD., R/O KHARAGJEET NAGAR, MAINPURI, DISTRICT-MAINPURI UTTAR PRADESH-205001 ...........Respondent(s)
BEFORE: HON'BLE DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Petitioner : Ms. Amrreeta Swaarup, Advocate For the Respondent : Mr. M.S. Khan, Advocate And Mr. Zahid Ali, Advocate, R-1 NEMO/DELETED, R-2 Dated : 06 Mar 2017 ORDER PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 14.01.2016, passed by the U.P. State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in Appeal No. 2825/2013, "Oriental Insurance Company Ltd. vs. Shakir Ali & Ors." vide which, while dismissing the appeal, the order dated 31.10.2013, passed by the District Forum Mainpuri UP, allowing the said complaint, filed by the complainant/respondent No. 1, Shakir Ali, was upheld.
2. The facts of the case are that the complainant Shakir Ali is the owner of truck No. RJ-14/2-G-9440, which was insured with the petitioner Oriental Insurance Company, vide policy No. 252602/31/2006/02068 for the period 22.02.2006 to 21.02.2007, in which the price of the truck was stated to be ₹8,88,000/-. The said truck was going to Guwahati, Assam on 09.10.2006, loaded with granite stone, when it overturned on account of a damaged bridge at Bharol under Police Post Arao, District Ferozabad and suffered damage. Intimation of the incident was given to the local Police as well as to the insurance company. The insurance company got a survey conducted about the incident. The truck was got repaired at Mainpuri by incurring an expenditure of ₹34,700/- but the claim was not reimbursed by the insurance company. There was another incident also, when the said truck caught fire near Thana Madari Hat, District Jalpaiguri, West Bengal on 02.12.2006. An intimation about the incident was given to the local Police and the fire brigade. The insurance company was also informed which got the spot survey as well as the final survey conducted. However, the claim for the vehicle was not sanctioned to the complainant, despite submission of all relevant papers. A legal notice dated 17.02.2010 was sent by the complainant to the OP Insurance Company through registered post, but the reply to the notice was not given. The consumer complaint, in question, was then filed, seeking directions to the OP Insurance Co. to pay the claimed amount of ₹11,75,650/- alongwith interest @10% p.a. and ₹5,000/- as cost of litigation. The amount claimed included the expenditure made on the repair of the vehicle, for the goods laden in the vehicle and ₹2 lakhs as compensation for mental agony etc.
3. The complaint was resisted by the OP Insurance Company by filing a written statement before the District Forum, in which they stated that the insurance policy had been issued to the complainant from their office at Bareily (UP), whereas the two incidents took place in districts Ferozabad and Jalpaiguri, West Bengal respectively. The District Forum at Mainpuri did not have the jurisdiction to take cognisance of the consumer complaint. It was further stated that driving licence No. U-8973/Guwahati dated 24.07.1988 of the driver Umesh Chandra, made available by the complainant, was got verified from the Regional Transport Office (RTO) at Guwahati. It was found that the said licence had not been issued by the RTO, Guwahati. The claim was then repudiated on dates 20.03.2007 and 27.05.2008 by sending letters through registered post. The OP Insurance Company stated that the consumer complaint was also barred by limitation as prescribed under section 24A of the Consumer Protection Act, 1986. The District Forum after taking into account the averments made by the parties, allowed the consumer complaint vide their order dated 31.10.2013 and directed the insurance company to pay a total sum of ₹8,21,050/- to the complainant alongwith simple interest @7% p.a. from the date of filing of the complaint. Out of this amount, ₹7,88,000/- was allowed for the second claim, after deducting a sum of ₹1 lakh as depreciation from the sum insured under the policy. For the first incident, a sum of ₹18,050/- was allowed as computed by the surveyor. In addition a sum of ₹10,000/- was allowed as compensation for mental agony and ₹5,000/- as cost of litigation, making it a total of ₹8,21,050/-. Being aggrieved against this order, the OP Insurance Company challenged the same by way of an appeal before the State Commission and the said appeal having been dismissed vide impugned order, the Insurance Company is before this Commission by way of the present revision petition.
4. During hearing before us, it was argued by the learned counsel for the OP Insurance Company that verification about the genuineness of the licence had been made at the offices of the RTO at Guwahati (Assam) and Gwalior (Madhya Pradesh). Two investigators Partha S.S. Choudhury and Jitu Mani Kalita carried out the investigations independently from the office of District Transport Officer (DTO) at Guwahati and reported to the insurance company that the said licence had not been issued from that office. The office of the DTO also made an endorsement to this effect on the application filed with them by Jitu Mani Kalita. Further, Smt. Chanderkanta Lakhotia, Advocate carried out investigation about the licence from RTO Office, Gwalior and the said office made an endorsement on the application filed by the said Advocate that the licence had not been issued by their office. The Insurance Company vide their letter dated 27.05.2008 repudiated the second claim of the complainant, while first claim had already been repudiated vide letter dated 20.03.2007, saying that the claim was not payable as per the terms and conditions of the policy. The learned counsel submitted that the consumer complaint had been filed on 29.06.2011, which was beyond a period of 2 years from the date of the repudiation letter. No application for condonation of delay was filed alongwith the complaint and hence, the consumer complaint was barred by limitation as prescribed under section 24A of the Act. The learned counsel stated that the District Forum mentioned in their order that the complainant contacted the insured last time on 11.02.2010 and hence, the cause of action should have been taken from that date. However, this contention of the District Forum was not valid, because the cause of action arose from the letter of repudiation.
5. The learned counsel argued that the Hon'ble Supreme Court in their order in "National Insurance Co. vs. Harbhajan Lal [Civil Appeal No. 3501/2004 decided on 16.09.2008]" had taken a view that if the licence in question was fake, the claim was not payable. The Hon'ble Apex Court had quoted their own earlier judgment in "National Insurance Co. Ltd. vs. Laxmi Narain Dhut [2007 (3) SCC 700]," while passing the above judgment. In "United India Insurance Company vs. Davinder Singh [2007 (8) SCC 698]" also, it was stated that once a licence was found fake, the subsequent renewal could not validate the same. In "New India Insurance Co. vs. Kamla & Ors. and allied matters" [2001 (4) SCC 342] also, it was held as follows:-
"As a point of law we have no manner of doubt that a fake licence cannot get its forgery outfit stripped off merely on account of some officer renewing the same with or without knowing it to be forged. Section 15 of the Act only empowers any Licensing Authority to "renew a driving licence issued under the provisions of this Act with effect from the date of its expiry". No Licensing Authority has the power to renew a fake licence and, therefore, a renewal if at all made cannot transform a fake licence as genuine. Any counterfeit document showing that it contains a purported order of a statutory authority would ever remain counterfeit albeit the fact that other persons including some statutory authorities would have acted on the document unwittingly on the assumption that it is genuine"
6. Per contra, the learned counsel for the complainant stated in his written arguments that the statement of Smt. Chanderkanta Lakhotia, who carried out the verification from the office of the RTO, Gwalior could not be relied upon, as she had failed to file an affidavit in support of her statement. Further, there was no negligence on the part of the complainant, if the driver did not have a proper licence. In fact, before handing over the vehicle to the driver, the complainant had checked the driving licence and found that the same had been renewed twice. The learned counsel argued that their case was covered by the judgment of the Honble Supreme Court in the case, "National Insurance Co. vs. Swaran Singh" [2004 (3) SCC 297], as there was no wilful breach of the conditions of the policy on their behalf. The learned counsel has also drawn attention to an order passed by the Hon'ble Supreme Court, "Pepsu Road Transport Corporation vs. National Insurance Co." [Civil Appeal No. 8276/2009 decided on 26.08.2013], wherein it was held that the insured could not be at fault in employing a person as driver, whose licence was found to be fake.
7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
8. From the facts and circumstances on record, it has been amply made clear that the licence in possession of the driver of the vehicle in question was fake, as per the verification got conducted by the insurance company. The contention of the learned counsel for the respondent that they had got the licence renewed from the transport authorities at Etah, which amounts to validation of the licence, cannot be accepted in view of number of judgments made by the Hon'ble Apex Court already, as stated above. It has been made clear by the Hon'ble Apex Court in "New India Assurance Co. vs. Kamla" (supra), that subsequent renewal of a licence does not make it a valid document. The learned counsel for the complainant has tried to place reliance on the case, "United India Insurance Co. vs. Swarn Singh (supra)", but the order made in that case has been discussed and clearly distinguished in the orders passed by the Hon'ble Supreme Court in "National Insurance Co. vs. Laxmi Narain Dhut (supra)" and "United India Insurance Co. vs. Davinder Singh (supra)". The facts in the "United India Insurance Co. vs. Swarn Singh (supra)" are entirely different, because these relate to third party claims only. Following the judgments made by the Hon'ble Apex Court as stated above, it is held that subsequent renewal of a fake licence does not make a licence valid and hence, the driver of the vehicle was not having a valid and effective licence at the time of the incident.
9. The complainant has contended that he had employed the driver after due verification and after observing that his licence had been renewed twice. The learned counsel for the complainant/respondent has drawn attention to an order of the Hon'ble Supreme Court in "Pepsu Road Transport Corporation vs. National Insurance Co." (supra). A perusal of the said judgment reveals that in the said case, the employer had recruited the driver after giving him a driving test and also imparting training to him. The accident took place only after 6 years of his service as driver. Moreover, it was observed in the said case that after scanning the evidence of the licencing authority before the Tribunal, it could not be absolutely held that licence to the driver had not been issued by the said Authority. Under these circumstances, it was held that the insured/employer could not be at fault in the case. In the present case, however, the licence in question has been found to be fake on verification and hence, the claim is hit by the terms and conditions of the insurance contract. In the case "Pepsu Road Transport Corporation vs. National Insurance Co." (supra) also, it was observed that it was certainly open to the insurer under section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licenced.
10. Having reached the conclusion that the driver of the vehicle was not having a valid and effective licence at the time of incident, it is to be examined whether the insurance company was still liable to pay the claim in question. A contract of insurance is Uberimma Fides, i.e., a contract of ultimate good-faith between the parties. In the event of violation of the terms and conditions of such contract, the claim in question, would not be payable, therefore. The matter has been examined in detail in a number of judgments by the Hon'ble Supreme Court. In the case ""United India Insurance Co. vs. Davinder Singh (supra)", it was stated that the decision in "United India Insurance Co. vs. Swarn Singh (supra)" had no application in own damage cases. The Hon'ble Court set aside the orders passed by the consumer fora below including this Commission, saying that the insurer was not liable to indemnify the owner of the vehicle in regard to losses sustained by him. A similar view was held by the Hon'ble Supreme Court in "National Insurance Co. vs. Harbhajan Lal" (supra), as well.
11. From the foregoing discussion, it is evident that the Insurance Company is not liable to pay the claim to the owner of the vehicle, since the licence possessed by the driver of the vehicle at the time of incident was found to be a fake document. This revision petition is allowed, therefore, and the orders passed by the consumer fora below are set aside, being perverse in the eyes of law. Consequently, the consumer complaint stands dismissed. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER