State Consumer Disputes Redressal Commission
National Insurance Company Ltd vs Sukhdev Singh S/O Shri Harbans Singh on 4 February, 2013
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 327 of 2008
Date of institution: 15.4.2008
Date of decision : 04.02.2013
National Insurance Company Ltd., Divisional Office-II, 20, G.T.Road,
Jalandhar through its Chief Regional Manager, National Insurance Company
Ltd., SCO No. 332-334, Sector 34-A, Chandigarh.
.....OP/Appellant
Versus
Sukhdev Singh s/o Shri Harbans Singh, resident of H.No. 52, Ward No. 4-H,
Adarsh Nagar, Bhogpur, Tehsil and District Jalandhar.
.....Complainant/Respondent
First Appeal against the order dated 25.1.2008
passed by the District Consumer Disputes
Redressal Forum, Jalandhar
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member
Shri Piare Lal Garg, Member Argued by:-
For the appellant : Sh. Rahul Sharma, Advocate for
Ms. V.A.Talwar, Advocate
For the respondents : Sh. Ravi Kumar, Advocate with
Sh. Jatinder Singh, Clerk office
of D.T.O.
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER
This is OP's appeal against the order dated 25.1.2008 passed by the learned District Consumer Disputes Redressal Forum, Jalandhar (in short the District Forum) vide which the complaint was allowed and OP/appellant was directed to pay to the complainant Rs. 2,07,301.78 paise alongwith interest @ 9% per annum.
First Appeal No. 327 of 2008 2
2. The present complaint was filed by Sukhdev Singh alleging that he got his Toyota Qualis insured with the OP/appellant for the period from 8.4.2005 to 7.4.2006. On 25.1.2006 when it was being driven by Gurvinder Singh who alongwith Sucha Singh and Harbhajan Singh was coming back from Karnal, it met with an accident and was damaged. Gurvinder Singh was holding a valid Driving Licence to drive the vehicle. The complainant informed the OP/appellant who appointed a surveyor. He spent about Rs. 2,60,000/- on its repair and submitted a claim but the same was repudiated. The complainant, therefore, filed the present complaint for a direction to the OP/appellant to pay Rs. 2,60,000/- alongwith interest @ 18% per annum, Rs. 50,000/- as damages and also the cost of litigation.
3. The complaint was opposed by the OP/appellant admitting that the vehicle was insured with them and when an intimation about the accident was received, they appointed a surveyor who assessed the loss at Rs. 2,07,301.78 paise. They had also appointed an investigator who opined that the insured vehicle was being used as a taxi at the time of accident and Gurvinder Singh was having a driving licence for scooter/LTV only for the period from 6.11.2001 to 5.11.2004 and therefore, he did not possess a valid driving licence on 25.1.2006 when the accident took place. It was alleged that they have rightly repudiated the claim and the complaint should be dismissed.
4. Both the parties produced evidence in support of their contentions.
5. After hearing arguments of the learned counsel for the parties and perusing the record, the learned District Forum allowed the complaint vide impugned order dated 25.01.2008.
6. We have heard the arguments of the learned counsel for the parties and have perused the record.
First Appeal No. 327 of 2008 3
7. The learned counsel for the appellant has argued that at the time of the accident the vehicle was being used as a taxi in violation of the terms and conditions of the policy and therefore, the appellant was not liable to pay any compensation. In order to prove the user of the vehicle, the OPs relied upon Ex. R-8 which is the report of Gopal Detective Agency to the effect that the vehicle was being used as a taxi at that time. The investigator was alleged to have recorded the statements of Dr. Harminder Singh, Sh. Sukhdev Singh, Smt. Parminder Kaur, Smt. Sheetal Kaur and Sh. Pargat Singh( Ex. R-9 to Ex. R-13) who according to the investigator alleged that they had hired the taxi on payment of Rs. 4200/-. The first question would be whether R-9 to R- 13 are admissible in evidence and our answer to this question is in the negative. Evidence before the learned District Forum can be led through affidavits. In the present case, neither any of these persons was produced in the witness box to make statement on oath nor their affidavits were tendered in evidence. Even the investigator did not obtain any affidavit from them. These persons were not subjected to cross examination by the complainant nor could/were they administered oath by the investigator to tell the truth. They, therefore, had no obligation to tell the truth to the investigator nor had any fear that their testimony would be through cross examination. Even this much is not certain if any such person was actually examined by the investigator because in the affidavit Ex. R-9 of Madan Gopal investigator, there is no mention if he had recorded the statement of any such person. We are therefore, of the opinion that Ex. R-9 to R-13 cannot be considered to hold that the vehicle was being used for hire and reward.
4. As regards, the report Ex. R-8 of the investigator only that portion thereof would be admissible in evidence which relates to the fact having taken place in his presence. Madan Gopal investigator had not hire the vehicle nor paid any charges there for. He does not say if any other person hired the vehicle or paid the charges to the complainant in his presence. He First Appeal No. 327 of 2008 4 based the report on the statements Ex. R-9 to R-13 and for the purpose of the consumer fora it is hear say evidence and therefore, the report based on inadmissible evidence cannot be accepted as correct. The result is that Ex. R-8 cannot be taken into consideration to hold that vehicle was being used on hire or reward.
5. The next question is as to whether Gurvinder Singh driver was holding a valid driving licence to drive the vehicle or not. Ex. C-5 is the copy of the driving licence showing that Gurvinder Singh could drive the scooter/LTV only. Ex. R-7 is the report submitted by the Surveyor in Para-4 (d) of the same, it is mentioned that he was having the driving licence to drive scooter and LTV only. Ex. R-15 is the report obtained by the OP from DTO, Jalandhar in which also this fact was confirmed. The vehicle involved is Toyota Qualis having a sitting capacity of 9+1 as mentioned in Ex. R-7. It is a private vehicle, the driving licence therefore, authorized Gurvinder Singh to drive the same.
6. The learned counsel for the OP/appellant has then argued that infact the driving licence was valid only up to 5.11.2004 as is mentioned in the report Ex. R-15 issued by DTO, Jalandhar whereas the accident took place on 25.1.2006 on which date Gurvinder Singh was not having any driving licence and therefore, the OPs are not liable to pay any compensation. The learned District Forum did not accept this contention in view of the driving licence Ex. C-5 which is shown to be valid till 16.4.2021. As mentioned by the complainant a case, FIR No. 11 dated 25.1.2006 was registered with respect to this accident and the police took the original driving licence in its possession. The criminal case was tried by the court of learned Additional Chief Judicial Magistrate, Fatehgarh Sahib and after its decision; the judicial file was consigned to record. We, therefore, called for the judicial file of the said case from the judicial record room of Fatehgarh Sahib to peruse the First Appeal No. 327 of 2008 5 original driving licence, which clearly shows its validity till 16.4.2021 and was for scooter and LTV only. The original driving licence be lies the contention of the OP/appellant that the driving licence was valid only upto 5.11.2004.
7. It was argued by the learned counsel for the OP/appellant that a licence to drive the commercial vehicle cannot be issued for more than three years and therefore the report Ex. R-15 issued by DTO, Jalandhar to this effect should be accepted as correct. This report showing that the driving licence was valid up to 5.11.2004 runs counter to the date of validity given in the original driving licence. We called for the record from the DTO, Jalandhar to ascertain the true facts. We are astonished to find that somebody in the office of DTO, Jalandhar tampered with the date of validity and changed the date to 5.11.2004. The said cutting is signed by somebody whose signatures are not legible though the stamp of DTO, Jalandhar is affixed thereon without any date. We called for a report from the present DTO, Jalalndhar to send the record relating to the order, if any passed by the DTO, Jalandhar vide which the date in the official record was changed but the reply dated 25.1.2013 shows that it was not feasible to explain the correction as to on which date the correction was made because the initials are not dated. The reply submitted by DTO, Jalandhar is evasive. The record remained in the custody of its staff who very well know as to who had made the interpolation in the record to change the date of its validity. The working of DTO, Jalandhar is not proper in so far as they can change the date of validity of a licence at the back of the holder of the licence due to which the holder may legitimately think that his driving licence was valid upto 16.4.2021 whereas DTO may tamper with the record and reduce the validity period to 5.11.2004 without even informing the licence holder and without making any change in the date of validity on the original driving licence. Otherwise, a notice should have been issued to the licence holder to surrender the original driving licence, he should have been heard and thereafter, the change in the date of First Appeal No. 327 of 2008 6 validity should have been made by passing a speaking order and a fresh licence in accordance with that showing the changed date of validity should have been issued. Needless to mention that the interpolation made in the record of the District Transport Officer, Jalandhar is not legal or valid, it rather constitutes an offence to tamper with the official record and it is the duty of the DTO, Jalandhar and the Deputy Commissioner, Jalandhar to trace out the culprit, lodge a report with the police for tampering with the official record and get the culprits punished so that such an important record is not tampered with to the detriment of the public and the licence holder.
8. Since the date of validity on the original driving licence is 16.4.2021, that will prevail over any date subsequently put by the DTO in his record. We are, therefore, of the opinion that the Gurvinder Singh was holding a valid driving licence at the time of the accident.
9. In view of the above discussions, we are of the opinion that the learned District Forum rightly allowed the complaint and directed OPs to make the payment of compensation as assessed by the Surveyor appointed by them. The impugned order is perfectly legal and valid and does not call for interference. There is no merit in this appeal and the same is accordingly dismissed. Copies of the order be supplied to the parties free of cost.
10. A copy of this order be sent to the Director Transport, Punjab, Chandigarh, the Deputy Commissioner, Jalandhar the SSP Jalandhar and the District Transport Officer, Jalandhar to make an inquiry in the matter as to how the official record has been tampered with and get the case registered with the police so that the guilty officer/official is prosecuted and punished so that such incidents are not repeated in future. The result of the action taken in the matter shall be intimated to this Commission.
First Appeal No. 327 of 2008 7
11. The appellants had deposited an amount of Rs. 25000/- with this Commission at the time of filing of the appeal on 15.4.2008. This amount of Rs. 25000/- with interest, if any, accrued thereon be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (PIARE LAL GARG) MEMBER February 04, 2013 Kalyan Refer to Reporter