National Consumer Disputes Redressal
National Insurance Co. Ltd. vs Sant Kumar Goyal on 2 December, 2004
Equivalent citations: I(2005)CPJ79(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. This revision is directed against the order of the State Consumer Disputes Redressal Commission, Punjab dismissing Appeal No. 703 of 1999 dated 21.3.2001 by rejecting repudiation of the insurance claim.
2. The insured vehicle of the complainant/ respondent suffered accidental damage on 26.1.1997. It was got repaired and the loss assessed by the Insurance Company was Rs. 53,515/-. The claim of the complainant/ respondent was repudiated on the ground that the driving licence of the driver employed by the complainant/owner was fake as per inquiry report dated 20.10.1998 by Ext. R-3 of Additional Licensing Authority. The District Forum by relying on the judgment reported as 1998 (2) CLT-370, Des Raj v. United India Insurance Co. Ltd., accepted the claim of the complainant by allowing the claim of the petitioner for payment of Rs. 53,515/-. The State Commission confirmed the order of the District Forum.
3. Feeling aggrieved by the aforesaid order, the present revision has been filed.
4. It is submitted by the learned Counsel for the Insurance Company that by renewal of forged driving licence fakeness of the documents is not removed. In this regard, learned Counsel for the petitioner appears to be justified and also supported by a judgment in the case of New India Assurance Co., Shimla v. Kamla and Ors., I (2001) ACC 346 (SC)=III (2001) SLT 151.
5. On the other hand, learned Counsel for the complainant also referred to the judgment of the Hon'ble Supreme Court in the case of United India Insurance Co. v. Lehru and Ors., II (2003) SLT 516=I (2003) ACC 611 (SC)=JT 2003 (2) SC 595, in which the Hon'ble Supreme Court observed that:
"When an owner is hiring a driver he will, therefore, have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owners to make inquiries with RTOs which are spread all over the country, whether the driving licence shown to them is valid or not. Thus, where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skanadia's, Sohan Lal Passi's and Kamla's case. We are in full agreement with the views expressed therein and seen no reason to take a different view."
(Emphasis supplied)
6. In the case, Harbhajan Lal v. National Insurance Co. Ltd., in R.P. No. 2166 of 2003 decided by a Full Bench of this Commission on 29.9.2003 relied upon above observations in Lehru's case and rejected the repudiation of the Insurance Company in absence of evidence to prove that the driving licence was fake one to the knowledge of the owner and claim of the complainant was upheld.
As regards the compensation that it is not a third party claim but owner's claim, it may be mentioned that in National Insurance Co. Ltd. v. Swaran Singh's case I (2004) SLT 345=I (2004) ACC 1 (SC)= 2004 ACJ P.1, following observations were made:
(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The Insurance Companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where-for would be on them.
(v) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to1 avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defence available to the insured under Section 149(2) of the Act.
(Emphasis supplied)
8. For the aforesaid reasons, we do not find any force in this revision petition. It is dismissed accordingly.