State Consumer Disputes Redressal Commission
M/S.V.L.Associates vs B.M ,Cholamandalam Ms General ... on 24 September, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/735
Instituted on : 21.08.2018
M/s V.L. Associates,
Prop. F. Z. Faridi, Aged 49 years,
Address - Block No.1A, Street No.04, Zone 03,
Khursipar,
Bhilai, Tahsil & District Durg (C.G.) ... Appellant (Complainant).
Vs.
Branch Manager, Chola Mandalam M.S. General
Insurance Company Limited,
Address : Regional Office / Branch Office - Second Floor,
Simran Tower, Opposite L.I.C. Building, Pandri,
Raipur, Tahsil & District Raipur (C.G.) ..... Respondent (O.P.)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Daneshwar Prasad Dubey, Advocate for the appellant (complainant).
Shri Ravi Mishra, Advocate for the respondent (O.P.)
ORDER
DATED : 24/SEPTEMBER/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 07.06.2018, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No.2016/967. By the impugned order, learned District Forum, has dismissed the complaint of the complainant.
2. Briefly stated the facts of the complaint of the complainant are that, the complainant is registered owner of vehicle Ashok Leyland Truck Highwa bearing registration No.C.G.07-CA-6210, which was insured with the O.P. (Insurance Company) for the period from 05.02.2013 to 04.02.2014. The Insured Declared // 2 // Value (IDV) of the said vehicle is Rs.23,98,750/-. The complainant paid a sum of Rs.49,946/- towards insurance policy to the O.P. (Insurance Company). On 11.04.2013 when the empty truck of the complainant was going from Bhilai to Raipur, then near Sai Dham, Kumhari, the vehicle met with an accident. The complainant gave intimation regarding the accident to the Police Station Kumhari (C.G.) and also gave intimation regarding the accident to the O.P. (Insurance Company). The O.P. (Insurance Company) appointed Spot Surveyor, who inspected the vehicle in question and had taken photographs. On being instructions given by the Surveyor, the vehicle in question was taken to Vardhman Automotive, Kumhari, District Durg (C.G.). On the directions given by the O.P. (Insurance Company), the complainant got repaired the vehicle in question, thereafter the Surveyor Shrinivas Rao M. was appointed by the O.P. (Insurance Company), who assessed the loss and had taken documents from the complainant. The complainant submitted the registration certificate of the vehicle, driving licence of driver and other relevant documents to the Surveyor and thereafter the complainant submitted his claim before the O.P. (Insurance Company). The O.P. (Insurance Company) assured the complainant that all amounts will be transferred in the bank account of the complainant, but the O.P. (Insurance Company) did not transfer any amount in the bank account of the complainant and did not give any intimation to the complainant, which comes in the category of deficiency of service as well as unfair trade practice. The complainant had obtained loan from the Central Bank of India, Branch Bhilai and due to non-payment of the claim amount, the complainant had unnecessarily paid interest on the loan amount to the above Bank. The complainant had paid amount of Rs.7,42,931/- towards repairing charges to Vardhman Automotive. The O.P. // 3 // (Insurance Company) did not settle the claim of the complainant, then the complainant filed complaint before Chairman, Permanent Lok Adalt (Public Utility Services), Durg (C.G.) under Section 22 (a)(b) of Legal Services Authorities Act, 1987. The Permanent Lok Adalat (Public Utility Services), Durg decided the complaint case of the complainant, therefore, the complaint filed the instant complaint before District Forum. The complainant is entitled to get the reliefs, as prayed by the complainant in the relief clause of the complaint.
3. The O.P. (Insurance Company) has filed its written statement and averred that earlier the complainant had filed complaint before Permanent Lok Adalat (Permanent Utility Services), Durg on 14.07.2014. Before the Permanent Lok Adalat (Permanent Utility Services, Durg, the compromise between the parties was not effected, then the Permanent Lok Adalat (Permanent Utility Services), Durg had passed award on 10.09.2015 and dismissed the complaint of the complainant, therefore, the learned District Forum, has no jurisdiction to entertain the instant complaint. The complaint of the complainant, is barred by time. On being intimation received by the O.P. (Insurance Company) from the complainant regarding the accident, the O.P. (Insurance Company) appointed Surveyor Shrinivas Rao M., who assessed the loss to the tune of Rs.5,20,556/-. The complainant submitted claim form before the O.P. (Insurance Company) and gave details regarding the driving licence of the driver. In the claim form, the name of driver is mentioned Dheeraj Kumar Patel and driver licence No. is mentioned M.P. 53 N-2010-0025361. The above driving licence was got verified by the O.P. (Insurance Company), then it was found that the above driving licence was not issued in favour of Dheeraj Kumar Patel, but the same was issued in favour of Ram // 4 // Ajor Vaishya S/o R.S. Vaishya. It shows that at the time of accident, the driver of the vehicle in question was not possessing valid and effective driving licence, which comes within purview of fundament breach of terms and conditions of the insurance policy, therefore, the complaint is not maintainable. The Permanent Lok Adalat (Public Utility Services), Durg after appreciation of the evidence, filed by both the parties, has dismissed the complaint of the complainant on 10.09.2015, which attained finality, therefore, for same cause of action, the complainant has no right to file complaint before the District Forum on the same cause of action and the complaint, is not maintainable. The complaint is liable to be dismissed.
4. The complainant has filed documents. Annexure A (1) is Motor Policy Schedule Cum Certificate of Insurance issued by Cholamandalam MS General Insurance Company Limited , Annexure 2 is Certificate of Registration of vehicle bearing registration No.CG.G.07-A-6210, Annexure 2(1) is Registration Certificate Details, issued by Chhattisgarh Transport Department, Annexure A-3 is Certificate of Fitness, Annexure 4 is permit for goods vehicle, Annexure 5 is driving licence of Puspraj Patel, Annexure A-6 is First Information Report (Under Section 154 Cr.P.C.), Annexure 7 (1) and (2) is Final Report, Annexure A-7 (3) & (4) is First Information Report (Under Section 154 Cr. P.C.), Annexure A-7 (8) & (9) is Crime Details Form, Annexure A-7 (10) & (11) is Property Seizure Memo, Annexure A-7 (12) & (13) is Arrest / Court Surrender Memo, Annexure A-7 (14) is statement of Nagendra Patel, Annexure A-7 (15) is statement of Sumesh Kumar, Annexure A-7 (16) is Driver's Certificate, Annexure A-7 (17) is Vehicle Inspection Report, Annexure A-7 (18) is Order dated 15.04.2015 passed by Pankaj Sharma, Judicial Magistrate First Class, Bhilai-3, District Durg (C.G.), Annexure A-7 (19) is Summary // 5 // Trial under Section 263 or 264 of the Criminal Procedure Code, , 1898), Annexure A-7 (20) is order dated 10.09.2013, passed by Judicial Magistrate First Class, Bhilai 3, District Durg in Case No.472/13, Annexure A-7 (21) is Receipt dated 10.09.2013 issued by Judicial Magistrate First Class, Bhilai - 3, District Durg (C.G.) in favour of Puspraj Patel, Annexure A-8 (1) to (3) are Credit Memo / Parts dated 24.05.2013 issued by Vardhman Automotive, Kumhari, District Durg (C.G.), Annexure A-8 (4) is Workshop Credit Bill dated 24.05.2013 issued by Vardhman Automotive, Annexure A-9 is application for seeking information dated 12.03.2014, Annexure A- 10 is photocopy of the postal order, Annexure A-11 is postal receipt, Annexure A- 12 is DL History of Puspraj Patel, Annexure A-13 is List of the Authorised Surveyors of Chhattisgarh, Annexure A-14 is specimen of the GCV Public Carrier Other Than 3 Wheelers Package Policy in the name of Mr. Ghanshyam Das Banjare.
5. The O.P. (Insurance Company) has filed documents. Annexure NA-1 is CRM Motor Claim Intimation Form, Annexure NA-2(1) & 2(2) is Motor Insurance Claim Form, Annexure NA-3 is photocopy of driving licence of Dheeraj Kumar Patel, Annexure NA-4 is letter dated 12.06.2013 sent by Shri U.P. Singh, Surveyor, Valuer and Loss Assessor to the Manager (Claim), Cholamandalam MS General Insurance Co. Ltd., Raipur, Annexure NA-5 is particulars of licence of Ramanjor Vaishya, Annexure NA-6 is Motor Policy Schedule Cum Certificate of Insurance issued by the O.P. (Insurance Company), Annexure NA-7(1) & (2) is claim repudiation letter dated 28.06.2013 sent by the O.P. to the complainant, Annexure NA-8 (1) to (3) is Motor ILA Survey Report - Commercial, Annexure NA-9(1) is order dated 10th September, 2015 passed by Permanent Lok Adalat (Public Utility Service, Durg (C.G.) in Complaint Case No.06/2014 - M/s V.L. Associates Prop. F. // 6 // Z. Faridi Vs. Branch Manager, Cholamandalam M.S. General Insurance Company Limited.
6. Learned District Forum after having considered the material placed before it by the parties, has dismissed the complaint of the complainant.
7. Shri Daneshwar Prasad Dubey, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) is registered owner of vehicle Ashok Leyland Truck Highwa bearing registration No.C.G.07-CA-6210, which was insured with the O.P. (Insurance Company) for the period from 05.02.2013 to 04.02.2014. The Insured Declared Value (IDV) of the said vehicle is Rs.23,98,750/-. The complainant paid a sum of Rs.49,946/- towards insurance policy to the O.P. (Insurance Company). On 11.04.2013 when the empty truck of the complainant was going from Bhilai to Raipur, then near Sai Dham, Kumhari, the vehicle met with an accident. The complainant gave intimation regarding the accident to the Police Station Kumhari (C.G.) and also gave intimation regarding the accident to the O.P. (Insurance Company). The O.P. (Insurance Company) appointed Spot Surveyor, who inspected the vehicle in question and had taken photographs. On being instructions given by the Surveyor, the vehicle in question was taken to Vardhman Automotive, Kumar, District Durg (C.G.). On the directions given by the O.P. (Insurance Company), the complainant got repaired the vehicle in question, thereafter the Surveyor Shrinivas Rao M. was appointed by the O.P. (Insurance Company), who assessed the loss and had taken documents from the complainant. The complainant submitted the registration certificate of the vehicle, driving licence of driver and other relevant documents to the Surveyor and thereafter the complainant submitted his claim before the O.P. (Insurance // 7 // Company). The O.P. (Insurance Company) assured the complainant that all amounts will be transferred in the bank account of the complainant, but the O.P. (Insurance Company) did not transfer any amount in the bank account of the complainant and did not give any intimation to the complainant, which comes in the category of deficiency of service as well as unfair trade practice. The complainant had obtained loan from the Central Bank of India, Branch Bhilai and due to non-payment of the claim amount, the complainant had unnecessarily paid interest on the loan amount to the above Bank. The complainant had paid amount of Rs.7,42,931/- towards repairing charges to Vardhman Automotive. The O.P. (Insurance Company) did not settle the claim of the complainant, then the complainant filed complaint before Chairman, Permanent Lok Adalat (Public Utility Services), Durg (C.G.) under Section 22 (a)(b) of Legal Services Authorities Act, 1987. The Permanent Lok Adalat (Public Utility Services), Durg decided the complaint case of the complainant, therefore, the complaint filed the instant complaint before District Forum. The complainant is entitled to get the reliefs, as prayed by the complainant in the relief clause of the complaint. The District Forum has erroneously dismissed the complaint of the complaint. The impugned order passed by the District Forum, is liable to be set aside. The appeal filed by the appellant (complainant), be allowed.
8. Shri Ravi Mishra, learned counsel appearing for the respondent (O.P.) has argued that earlier the complainant had filed complaint before Permanent Lok Adalat (Permanent Utility Services), Durg on 14.07.2014. Before the Permanent Lok Adalat (Permanent Utility Services, Durg, the compromise between the parties was not effected, then the Permanent Lok Adalat (Permanent Utility Services), // 8 // Durg had passed award on 10.09.2015 and dismissed the complaint of the complainant, therefore, the learned District Forum, has no jurisdiction to entertain the instant complaint. The complaint of the complainant, is barred by time. On being intimation received by the O.P. (Insurance Company) from the complainant regarding the accident, the O.P. (Insurance Company) appointed Surveyor Shrinivas Rao M., who assessed the loss to the tune of Rs.5,20,556. The complainant submitted claim form before the O.P. (Insurance Company) and gave details regarding the driving licence of the driver. In the claim form, the name of driver is mentioned Dheeraj Kumar Patel and driver licence No. is mentioned M.P. 53 N-2010-0025361. The above driving licence was got verified by the O.P. (Insurance Company), then it was found that the above driving licence was not issued in favour of Dheeraj Kumar Patel, but the same was issued in favour of Ram Ajor Vaishya S/o R.S. Vaishya. It shows that at the time of accident, the driver of the vehicle in question was not having valid and effective driving licence, which comes within purview of fundament breach of terms and conditions of the insurance policy, therefore, the complaint is not maintainable. The Permanent Lok Adalat (Public Utility Services), Durg after appreciation of the evidence, filed by both the parties, has dismissed the complaint of the complainant on 10.09.2015, which attained finality, therefore, for same cause of action, the complainant has no right to file the parallel proceeding before the District Forum. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (complainant), is liable to be dismissed.
// 9 //
9. We have heard learned counsels appearing for both the parties and have also perused the record of the District Forum as well as the impugned order passed by the District Forum.
10. The learned District Forum in para 11 of the impugned order has observed that the learned Permanent Lok Adalat (Public Utility Services), Durg (C.G.) after hearing both the parties, had decided the complaint case of the complainant on merits and dismissed the complaint vide order dated 10.09.2015, therefore, on the same cause of action, subsequent complaint filed by the complainant, is not maintainable. The Permanent Lok Adalat (Public Utility Services), Durg has not given any direction to the complainant to file complaint before any Tribunal or Forum, therefore, the complaint of the complainant, is not maintainable. In para 12 of the impugned order, the learned District Forum has further observed that at the time of the accident, the driver of the vehicle in question, was not possessing valid and effective driving licence. On both the counts, the complaint of the complainant has been dismissed by the District Forum.
11. The respondent (O.P.) has filed Annexure NA-9(1) to (10), which is copy of order dated 10th September, 2015 passed by Permanent Lok Adalat (Public Utility Services), Durg (C.G.) in Case No.06/2014 M/s V.L. Associates Prop. F. Z. Faridi Vs. Branch Manager, Chola Mandalam, M.S. General Insurance Co. Ltd. In para 14 of the above order, the Permanent Lok Adalat (Public Utility Services), Durg has observed that the complainant has filed Ex. NA-6 FIR & Seizure Memo. In the seizure memo, the driving licence of the driver is mentioned M.P. 53 R-2013- 0066610 and the complainant mentioned the name of driver Puspraj Patel, but in the motor insurance claim form, the name of the driver is mentioned Dheeraj // 10 // Kumar Patel and there is contradiction in the name of the driver. Ex. NA-5 was filed by the O.P. in which particulars regarding the driving licence was given and it was found that the driving licence No.M.P.53 N-2010-0025361 was not issued in the name of Dheeraj Kumar Patel and the driver of the vehicle was not having valid and effective driving licence, and the Permanent Lok Adalat (Public Utility Services), Durg dismissed the complaint of the complainant.
12. In the instant complaint, the complainant has not mentioned the name of driver, who was driving the vehicle in question at the time of accident and in para 5 of the complaint, it is simply mentioned that on the date of accident the vehicle in question was empty and second driver was driving the vehicle in question. The name of the driver is not mentioned by the complainant in the complaint.
13. The appellant (complainant) has filed photocopy of driving licence of Puspraj Patel (Annexure A-5), in which the driving licence No. is mentioned MP53P-2013-006616. In the Final Report (Annexure A-7 (1) & (2), the name of the accused is mentioned Puspraj Patel, S/o Ramsiya Patel. Annexure A-7 (10) is Property Seizure Memo, whereby the truck bearing registration No.C.G.07-CA- 6210, registration paper and driving licence No. MP53R 2013 0066610 of driver Puspraj Patel S/o Ramsiya Patel, were seized by the Police Station, Kumhari.
14. Annexure NA-2 is Motor Insurance Claim Form submitted by the appellant (complainant) before the respondent (O.P.), in which name of driver is mentioned Mr. Dheeraj Kumar Patel and his driving licence No. is mentioned MP-53-N-2010- 0025361. There is contradiction regarding the name of the driver of the vehicle in question. The appellant (complainant) has filed copy of First Information Report, // 11 // Property Seizure Memo and Final Report. Looking to the above documents, it appears that at the time of accident, the vehicle in question was being driven by Puspraj Patel, but in the Motor Insurance Claim Form, the complainant has mentioned the name of driver Dheeraj Kumar Patel. There is material contradictions in the complaint and claim form that who was actually driving the vehicle in question at the time of accident.
15. Annexure NA-4 is Verification Report dated 12.06.2013 of Shri U/O. Singh, Surveyor, Valuer and Loss Assessor regarding the driving licence No.MP53N- 2010-0025361. The above letter has been sent by Shri U.P. Singh to The Manager (Claim), Cholamandalam MS General Insurance Co. Ltd. Raipur regarding the confirmation of genuineness of the driving licence No.MP53N-2010-0025361, in which it is mentioned thus :-
"NOTE : Above license is issued in the name of Sh. Ram Ajor Vaishya and not in the name of Sh. Dheeraj Kumar Patel, which is mentioned in the driving license, the license shown in the name of Sh. Deeraj Kumar Patel, is fake and manipulated."
16. It appears that the driving licence No.MP53-N-2010-005361 mentioned in the driving licence of Dheeraj Kuma Patelr, has not been issued in the name of Dheeraj Kumar Patel, therefore, the driving licence of Dheeraj Kumar Patel, filed by the O.P. is fake.
17. In Parasnath Jha Vs. Oriental Insurance Company Limited, I (2018) CPJ 429 (NC), Hon'ble National Commission, has observed thus :-
// 12 // "5. In National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, IV (2007) SLT 102 = III (2007) CPJ 13 (NC) = II (2007) ACC 28 (SC) = (2007) 3 SCC 700, the Hon'ble Supreme Court noted as under :-
"24. In the background of the statutory provisions, one thing is crystal clear i.e. the statute is beneficial one qua the third party. But that benefit cannot be extended to the owner of the offending vehicle. The logic of fake licence has to be considered differently in respect of the third party and in respect of own damage claims.
36. The inevitable conclusion therefore is that the decision in Swaran Singh case has no application to own damage cases. The effect of fake licence has to be considered in the light of what has been stated by this Court in New India Assurance Co. v. Kamla. Once the licence is a fake one the renewal cannot take away the effect of fake licence. It was observed in Kamla case as follows :-
(SCC p. 347, para 12).
12. 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 licencing 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".
37. 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 licence was a fake one. Once it is established the natural consequences have to flow.
38. In view of the above analysis the following situations emerge :
1. The decision in Swaran Singh case 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.
// 13 // The High Courts/Commission shall now consider the matter afresh in the light of position in law as delineated above."
In National Insurance Co. Ltd. v. Om Prakash Jain, Civil Appeal No.6248 of 2009 decided on 14.09.2009, the Hon'ble Supreme Court referring to its earlier decision in Laxmi Narayan Dhut (supra) and Swaran Singh (supra) specifically held as under :-
"In National Insurance Company Limited v. Laxmi Narain Dhutt, 2007 (3) S.C.C.700, it has been clearly laid down that the decision in the case of National Insurance Company Ltd. Vs. Swaran Singh & Anr., 2004 (3) S.C.C. 297, has no application to the cases other than third party risks and where originally licence was a fake, renewal thereof cannot validate the same. In the present case, the complaint was filed for damage of the vehicle of the insured and not the third party risk. The District Forum and State Commission have concurrently held that the original licence of the driver was fake. This being the position, the District Forum was justified in dismissing the complaint and the State Commission committed an error by awarding compensation to the respondent".
In the aforesaid case, the complaint was filed by the insured himself seeking compensation for the damage caused to his vehicle, which had met with an accident. It was found that the driving licence possessed by the driver of the vehicle was a fake licence. The National Commission having decided in favour of the complainant, the matter was taken by the Insurance Company to the Apex Court.
In United India Insurance Company Ltd. Vs. Davinder Singh, (2007) 8 SCC 698, the respondent owned a vehicle which he had got insured from the appellant United India Insurance Company Ltd. The said vehicle met an accident with a truck. It was being driven by a person, who did not possess a valid licence. The owner of the vehicle filed a complaint before the District Forum, seeking compensation for the damages caused to his vehicle. This Commission have ruled in his favour. The matter was taken to the Hon'ble Supreme Court by way of an appeal. Allowing the appeal filed by the Insurance Company, the Apex Court inter-alia held that the Fora below had committed an error in holding the Insurance Company liable to indemnify the owner of the vehicle with regard to the losses sustained by him. During the course of the judgment, the Hon'ble Supreme Court, inter-alia observed as under :-
"10. It is, thus, axiomatic that whereas an Insurance Company may be held to indemnify the owner for the purpose of meeting the object an purport of the provisions of the Motor Vehicles Act, the same may not be // 14 // necessary in a case where an Insurance Company may refuse to compensate the owner of the vehicle towards his own loss. A distinction must be borne in mind as regards the statutory liability of the insurer vis-à-vis the purport and object sought to be achieved by a beneficient legislation before a Forum constituted under the Motor Vehicles Act and enforcement of a contract quacontract before a Consumer Forum."
In Oriental Insurance Co. Ltd. Vs. Meena Variyal, (2007) 5 SCC 428, the Hon'ble Supreme Court referring to its earlier decision in Swaran Singh , 2004 (3) SCC 297 held as under :-
"It is difficult to apply the ratio of this decision to a case not involving a third party. The who protection provided by Chapter XI of the Act is against third-party risk. Therefore, in case where a person is not a third party within the meaning of the Act, the Insurance Company cannot be made automatically liable merely by resorting to Swaran Singh ratio. This appears to be the position. This position was expounded recently by this Court in National Insurance Company Limited v. Laxminarayan Dhut. This Court after referring to Swaran Singh and discussing the law summed up the position thus : (Laxmi Narain Dhut case, SCC p. 719 para 38). The legal proposition emerges from the above referred decisions of the Hon'ble Supreme Court is that though the Insurance Company is liable to a third party even if the vehicle, at the time it meets with an accident is being driven by a person who does not possess a valid driving licence, the position would be different in a case where compensation is sought by the insured himself, for the damage caused to his vehicle. Wherever, the insured himself is the claimant, the Insurance Company is not liable to reimburse him for the damage caused to the vehicle, if it is found that the driver of the vehicle did not possess a valid licence at the time the vehicle met with an accident."
18. In United India Insurance Co. Ltd. Vs. Davinder Singh, IV (2007) CPJ 1 (SC) = 2008 (I) ACJ 1 (SC), Hon'ble Supreme Court has observed thus :-
"Motor Vehicle Act, 1988, section 147 (1) (a) (ii)- Motor insurance- Own damage claim- Driving licence- Fake licence- Repudiation of claim- Driver originally had a fake licence which was got renewed- Forum under Consumer Protection Act mulcted liability on the insurance company- Whether insurance company is liable for the claim of the owner of the vehicle in regard to losses sustained by him where // 15 // licence of his driver has been found fake but got renewed- Held: no; renewal cannot take away the effect of fake licence. [2007 ACJ 721 (SC) and 2007 ACJ 1284 (SC) followed: 2004 ACJ 1 (SC) distinguished]."
19. In Dilawar Khan Vs. New India Assurance Co. Ltd. & Ors., I (2018) CPJ 381 (NC), Hon'ble National Commission has observed that "Driving Licence - Invalid- Violation of policy condition- Claim repudiated."
20. In Meera Dhuria Vs. ICICI Lombard General Insurance Company Limited & Anr. I (2018) CPJ 161 (NC), Hon'ble National Commission, has observed thus :-
"Onus to prove that licence was not valid, has been duly discharged by OP Insurance Company by producing report from DTO-cum-Licensing Authority-
Once initial onus has been discharged by Insurance company, it was duty of petitioner/complainant to prove, whether such report was false or that driver of vehicle had valid and effective driving licence- Violation of policy condition established- Repudiation justified."
21. In Oriental Insurance Co. Ltd. Vs. Prithvi Raj 2008 (II) ACJ 733 (SC), Hon'ble Supreme Court has observed thus :-
"Motor Vehicle Act, 1988, section 149 (2) (a) (ii)- Motor insurance- Driving licence- Fake licence- Renewal of- Liability of insurance company- Insurance company repudiated the claim of owner of minibus which was damaged in accident on the ground that driver did not possess a valid driving licence- Owner approached the State Commission under Consumer Protection Act and took the stand that licence was validly and legally renewed, the claim could not have been repudiated by the insurance company- State Commission rejected the plea of owner // 16 // holding that there was no valid licence- National Commission held that in view of the fact that there was renewal of driving licence, the claim could not have been refused by insurance company- Whether renewal of a fake driving licence does not transform it into genuine and insurance company was justified in repudiating the claim- Held: yes, renewal cannot take away the effect of fake licence; insurance company has no liability. [2001 ACJ 843 (SC) and 2007 ACJ 721 (SC) followed]."
22. In New India Ansurance Co. Ltd. Vs. Bhika Khan, III (2012) CPJ 620 (NC), Hon'ble National Commission has observed thus :-
"7. We find substance in the submission of the Counsel for the Petitioner, Supreme Court, in Para 41 of Laxmi Narayan Dhut's case (supra) has held that in own damage cases, the insurance company is not liable to reimburse the loss to the insured where original licence was fake. That renewal of the fake licence could not cure the inherent fatality. Relevant observations made by the Supreme Court read as under :-
"36. ...................
37. ....................
38. 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 risk.
2. Where originally the licence was a fake one, 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.
// 17 // The High Courts/Commissions shall now consider the matter afresh in the light of the position in law as delineated above."
23. In M/s Royal Goods Transport Co. Vs. National Insurance Co. Ltd. & Anr. 2016 (3) CPR 628 (NC), Hon'ble National Commission has observed, thus :-
"Consumer Protection Act, 1986- Sections 15, 17, 19 and 21- Insurance- Vehicle insurance- Damage to vehicle in accident- Non possession of valid and effective driving licence constitutes a fundamental breach of terms an conditions of policy and claim was not payable- There is no justification for allowing complaint because licence produced by driver of vehicle has been found to be a fake document on investigation- Revision petition dismissed."
24. In Tirupati Transport Corporation Vs. Oriental Insurance Company Limited, I (2016) CPJ 12 (NC), Hon'ble National Commission has observed thus :-
"Consumer Protection Act, 1986- Section 2 (1) (g), 21 (b)- Insurance- Accident of vehicle- Driving licence- Invalid- Violation of policy condition- Claim repudiated- Alleged deficiency in service- District Forum dismissed complaint- State Commission dismissed appeal- Hence revision- Wherever insured himself is claimant, Insurance Company not liable to reimburse him for damage caused to vehicle, if it is found that driver of vehicle did not possess valid licence at time of accident- Repudiation justified."
25. In the Claim Form, the complainant had mentioned the name of driver Dheeraj Kumar Patel and on verification the driving licence of Dheeraj Kumar Patel, was found fake. It shows that Dheeraj Kumar Patel, who was driving the vehicle at the time of accident, was possessing fake driving licence. Therefore, Dheeraj Kumar Patel, was not possessing valid and effective driving licence, at the time of accident, which comes within fundamental breach of terms and conditions of the insurance policy.
// 18 //
26. The Permanent Lok Adalat (Public Utility Services), Durg has observed in its order dated 10.09.2015 that there is contraction in the name of driver, who was driving the vehicle in question at the time of accident. According to the driving licence (Annexure NA-3) of driver Dheeraj Kumar Patel, it appears that it has not been issued in the name of Dheeraj Kumar Patel. The learned District Forum, has rightly observed that the driving licence of Dheeraj Kumar Patel is fake, which comes within purview of fundamental breach of the terms of the insurance policy.
27. Initially the complainant filed complaint before Permanent Lok Adalat (Public Utility Services), Durg, therefore, the subsequent consumer complaint filed by the complainant before the District Forum, for same cause of action, is not maintainable. The learned District Forum, has rightly observed in the impugned order that the complaint is not maintainable before it and has also rightly observed that driver of the vehicle in question Dheeraj Kumar Patel, was not having valid and effective driving licence at the time of accident.
28. On the basis of above discussions, the impugned order dated 07.06.2018, passed by the District Forum, is just and proper and does not suffer from any infirmity, irregularity or illegality, hence does not call for any interference by this Commission.
29. Hence the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Smt. Ruchi Goel)
President Member Member
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