State Consumer Disputes Redressal Commission
The Oriental Insurance Co. Ltd. vs Nain Singh Bhandari on 21 February, 2023
Appeal No. The Oriental Insurance Company 21.02.2023
332 of 2013 Limited.
Vs.
Sh. Nain Singh Bhandari
TATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 13.12.2013
Date of Final Hearing: 02.02.2023
Date of Pronouncement: 21.02.2023
First Appeal No. 332 / 2013
The Oriental Insurance Company Limited
Division Office: 1st Floor, 4-B, Sachdeva Colony
Opposite Nainital Bank Limited, Haridwar Road, Dehradun
Through Divisional Manager
(Through: Sh. Deepak Ahluwalia, Advocate)
.....Appellant
VERSUS
Sh. Nain Singh Bhandari S/o Late Sh. Raje Singh Bhandari
R/o Upper Bazar, Joshimath, Tehsil Joshimath, Chamoli
(Through: Sh. Ravinder Singh, Advocate)
.....Respondent
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been directed against the judgment and order dated 14.10.2013 passed by the learned District Consumer Disputes Redressal Forum, Chamoli (hereinafter to be referred as the District Commission) in consumer complaint No. 15 of 2010 styled as Sh. Nain Singh Bhandari Vs. The Oriental Insurance Co. Ltd., wherein and whereby the complaint case was allowed.1
Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari
2. The facts giving rise to the present appeal, in brief, are as such that the respondent - complainant had filed a consumer complaint No. 15 of 2010 before the District Commission, Chamoli alleging therein that on 23.04.2008 he took a loan from State Bank of India, Joshimath for purchase of a vehicle and from the loan amount, he had purchased a car (Tata Indica DLS) bearing registration No. UK07-V-4564, which was got insured with The Oriental Insurance Co. Ltd., 47, Rajpur Road, Dehradun at an IDV of Rs. 3,38,590/- for the period commencing from 25.04.2008 to 24.04.2009. It is further alleged that on 19.11.2008, when the vehicle in question was coming from Chamoli to Joshimath, it met with an accident near Anman Bend (Joshimath). The FIR of the accident was lodged by the respondent
- complainant on 20.11.2008 at P.S. Kotwali, Joshimath and information about the accident was also given to the opposite party - Insurance Company. Opposite party - Insurance Company appointed a surveyor, who visited the spot and inspected the vehicle. The vehicle in question was towed to Dehradun and an amount of Rs. 20,000/- was spent by the respondent - complainant. The respondent - complainant submitted estimate of repairs with the opposite party - Insurance Company, but the claim was not settled and the opposite party - Insurance Company, however repudiated the claim vide their letter dated 25.10.2009 thereby committed deficiency in service on the part of the opposite party - Insurance Company. Therefore, the respondent - complainant filed a consumer complaint.
3. The District Commission issued a notice to the opposite party - insurance company, but inspite of notice upon the opposite party, none has appeared on behalf of the opposite party - insurance company before the District Commission, therefore, the District Commission vide order dated 20.11.2010 proceeded the consumer complaint ex-parte and decided the same against the opposite party - insurance company vide order dated 03.02.2011.
2Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari
4. Aggrieved by the above order dated 03.02.2011, the opposite party - insurance company has filed an appeal No. 99 of 2012; this Commission vide order dated 03.10.2012 allowed the appeal and set aside the order dated 03.02.2011. The matter was remanded back to the District Commission concerned for decision afresh in accordance with law and the opposite party - insurance company was directed to file the written statement before the District Commission on or before 05.11.2012.
5. In pursuance of the above order dated 03.10.2012, the opposite party
- Insurance Company filed the written statement before the District Commission, wherein it was pleaded that it was informed by the respondent
- complainant that at the time of accident, the vehicle was being driven by Sh. Ram Kishan Chauhan S/o Sh. Rajendra Singh having driving license No. 32379/DDN/99 dated 14.12.1999, whereas as per FIR, the vehicle in question was being driven by Sh. Ram Prakash Singh, who was not possessing a valid driving license and as such the respondent - complainant has committed breach of the terms and conditions of the policy and his claim was rightly repudiated. The District Commission after perusing the available record and after hearing both the parties, passed the impugned judgment / order dated 14.10.2013 wherein it is held as under:-
"ifjoknh uSuflag dk çLrqr ifjokn] foi{kh fn vksfj;.Vy ba";ksjsUl dEiuh fyfeVsm ds fo:) vKkIr fd;k tkrk gSA foi{kh chek dEiuh dks vknsf"kr fd;k tkrk gS fd og ifjoknh dks mlds chfer nq?kZVukxzLr okgu dh chekjkf"k vadu&3]38]590-00 :i;s ¼rhu yk[k vM~rhl gtkj ik¡p lkS uCcs :i;s½] ekufld ,oa vkfFkZd {kfr ds :i esa vadu&2000-00 :i;s rFkk okn O;; ds :i esa vadu&1000-00 :i;s] ,d ekg ds vUnj vnk djsa] ;fn 3 Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari mijksDr lEiw.kZ /kujkf"k le;kof/k ds Hkhrj vnk ugha dh tkosxh rks ifjoknh] foi{kh chek dEiuh ls mijksDr lEiw.kZ /kujkf"k ij bl fu.kZ; dh frfFk ls vafre vnk;xh dh frfFk rd 6 çfr"kr okf'kZd dh nj ls C;kt Hkh ikus dk vf/kdkjh gksxkA"
6. On having been aggrieved by the aforesaid judgment of the District Commission, the present appeal has been preferred by the appellant - opposite party.
7. We have heard learned counsel for both the sides and perused the material available on record.
8. The appellant - insurance company has averred in its appeal that the impugned judgment is against law, facts and merits of the case and the Commission below has not considered that in the claim form dated 22.11.2008 submitted by the respondent - complainant, the name of the driver is shown as Sh. Ram Prakash Singh whereas Sh. K.K. Yadav, surveyor has mentioned in his survey report the name of the driver is Sh. Ram Prakash Singh. In the G.D. report / O.D. Claim, the name of the driver is Sh. Ram Prakash Singh is mentioned as driver. It is not disputed that at the time of accident, Sh. Ram Prakash Singh was not having a valid and effective driving license and his driving license had expired on 20.05.2008 and it was renewed on 05.03.2009, whereas the accident took place on 19.11.2008. The respondent - complainant misrepresented the fact, hence the claim was rightly repudiated by the appellant - insurance company on 25.10.2009. It is also submitted that it is now a settled law that in third party claim cannot be paid in own damage claim. Thus, the Commission below has rightly hold that on the date of accident, the driver was not having a valid and effective driving license. Thus, the Commission below has 4 Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari wrongly awarded the entire insured amount without perusing the material evidence on record. The Commission below has not considered the policy in question as well as terms and conditions of the policy. Hence, the appeal may kindly be allowed.
9. It is undisputed fact that the respondent - complainant is the registered owner of the vehicle in question bearing registration No. UK07- V-4564. It is also admitted that the said vehicle was insured with the appellant - insurance company at an IDV of Rs. 3,48,590/- for the period commencing from 25.04.2008 to 24.04.2009. It is also admitted fact that vehicle in question met with an accident on 19.11.2008 near Anman Bend while coming from Chamoli to Joshimath. It is also admitted in pleadings of both the parties that the FIR of the accident was lodged by the respondent
- complainant on 20.11.2008 at P.S. Kotwali, Joshimath. It is also undisputed fact that the intimation about the accident was also given to the appellant - insurance company. It is also admitted in the pleadings of both the parties that the appellant - insurance company repudiated the claim of the respondent - complainant vide letter dated 25.10.2009.
10. In the appeal, the appellant has only raised one legal question that the name of the driver of the vehicle in question was Sh. Ram Prakash Singh, who has not possessed the valid and effective driving license.
11. Learned counsel for respondent - complainant has averred that Sh. Ram Prakash Singh was plying the vehicle in question when the accident took place. It is also contended by the counsel for respondent - complainant that the driver of vehicle in question was having a valid and effective driving license and name of the driver was Sh. Ram Prakash Singh, but the driving license of the driver was renewed after the date of accident, i.e. 19.11.2008 and the endorsement on the driving license was 5 Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari made on 05.03.2009, whereas the driving license expired on 20.05.2008 and it was renewed on 05.03.2009.
12. We have perused the record of the District Commission. In the complaint, the respondent - complainant has shown the name of the driver as Sh. Ram Prakash Singh, who was plying the vehicle in question on the ill-fated date 19.11.2009 when the accident took place. Information forwarded to the P.S. Kotwali, Joshimath (paper No. 9 on the record of District Commission) which has also revealed that in the said report, Sh. Ram Prakash Singh is also shown as driver who sustained injuries in the accident. In the FIR, the alleged accident took place due to technical defect. In the intimation to the insurance company (paper No. 4/13 of the record of District Commission) the respondent - complainant has alleged that the report has been lodged in the P.S. Kotwali, Joshimath. Thus, the respondent - complainant has relied on the FIR wherein the driver's name is shown as Sh. Ram Prakash Singh. In the claim form (paper Nos. 28 to 31 of appeal file), the respondent - complainant has shown the name of the driver as Sh. Ram Prakash Singh. In the first surveyor report (paper Nos. 33 to 34 of appeal file), the surveyor of the appellant company Sh. K.K. Yadav has shown the driver's name as Sh. Ram Prakash Singh. The first surveyor has prepared the report on 05.12.2008.
13. In the final surveyor report dated 10.04.2009 (paper Nos. 35 to 38 of the appeal file) the surveyor Sh. Sushil Kumar Sharma has shown the name of the driver as Sh. Ram Prakash Singh. Thus, in the above two reports, the name of the driver is shown as Sh. Ram Prakash Singh, whereas one surveyor Sh. Abdul Baqi Khan has alleged the name of the driver as Sh. Ram Kishan Chauhan. Thus, there is a contradictory surveyor reports available on the record regarding the name of the driver of the offending vehicle. The surveyor Sh. Abdul Baqi Khan has submitted with his report 6 Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari the affidavits of witnesses namely Sh. Surya Prakash S/o Late Sh. Jayanand, Sh. Naresh Singh S/o Raghuveer Singh and Sh. Vijay Prakash S/o Sh. Natthi Singh, wherein all the above mentioned witnesses have alleged that Sh. Ram Prakash Singh, driver, was plying the vehicle in question at the time of accident who was seen by such witnesses. On such evidence of witnesses, the observation of the surveyor Sh. Abdul Baqi Khan has no relevance that Sh. Ram Kishan Chauhan was plying the vehicle in question at the time of the accident. Moreover, there are two reports of the surveyor admitting the driver's name as Sh. Ram Prakash Singh, therefore, the majority view of the surveyors will prevail.
14. Learned counsel for the appellant has contended that he is not pressing on the name of the driver Sh. Ram Kishan Chauhan. It is further contended on behalf of the appellant that the driver's name of the vehicle in question was Sh. Ram Prakash Singh, who was plying the vehicle in question at the time of accident, but whose driving license was not renewed on the date of accident, i.e. 19.11.2008.
15. We have seen the record of the District Commission concerned, wherein the medical certificate (paper No. 6 of the District Commission) of Sh. Ram Prakash Singh S/o Sh .Murli Singh is enclosed with the intimation letter to Insurance Company.
16. It is proved that the Sh. Ram Prakash Singh has sustained the injuries in the alleged accident and his driving license was valid up to 28.11.2006. The driving license has expired on 20.05.2008 and it was renewed on 05.03.2009. As per the contention of the insurance company there was no valid driving license of Sh. Ram Prakash Singh on the date of accident.
7Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari
17. Learned counsel for the respondent - complainant has cited the following case laws:-
1. Nirmala Kothari Vs. United India Insurance Co. Ltd., 2020 0 Supreme (SC) 227
2. Lehri Bai (Smt.) and Anr., Vs. Smt. Meera Kunwar and Ors., decided on 26.05.2005 by the Rajasthan High Court
18. We have perused the above cited case laws.
19. In the case of Nirmala Kothari (supra) the Hon'ble Supreme Court has held that on facts, in the instant case, the Appellant/Complainant had employed the Driver, Dharmendra Singh as driver after checking his driving license. The driving license was purported to have been issued by the licensing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the concerned officer of the licensing authority deposed that the record of the license was not available with them. It is not the contention of the Respondent/ Insurance Company that the Appellant/complainant is guilty of willful negligence while employing the driver. The driver had been driving competently and there was no reason for the Appellant/Complainant to doubt the veracity of the driver's license. In view of above facts and circumstances, the impugned judgment is not liable to be sustained and is hereby set aside. The appeals accordingly stand allowed. The respondent/ Insurance Company is held liable to indemnify the appellant.
The above cited case law is not applicable to the case in hand. In this appeal, it is not proved that the record of Sh. Ram Prakash Singh - driver was lost from the office of licensing authority. In the instant case, the record 8 Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari of the driving license of Sh. Ram Prakash Singh was available in the office of licensing authority.
20. In the case of Lehri Bai (Smt.) (supra) as per facts of the case, the driver of the vehicle holding valid driving license and that expired on 27.02.2000. The accident occurred on 28.02.2001 at 8:00 AM after expiry of the driving license of the driver. The driving license was renewed by the driver on the same day, i.e, on 28.02.2001, meaning thereby the license was renewed after the occurrence of the accident. Thus, in this matter, the Hon'ble High Court of Rajasthan has held that the insured had knowledge that the license of the driver of the vehicle expired and the driver of the vehicle did not renew the license. There is no specific defense of the insurance company that the owner of the vehicle engaged the driver knowing it well that his driving license has already expired. The insurance company also failed to prove that insured was responsible for non-renewal of the license of the driver in time. Therefore, the Tribunal was wrong in holding that the owner of the vehicle willfully breach the condition of the policy. Here it is pertinent to mention that the above cited cases relates to the Third Party Claim in Motor Accident Claim Case whereas the instant case relates to O.D. Claims.
21. Learned counsel for the appellant has cited the following case law, which are as under:
1. National Insurance Co. Ltd. Vs. Laxmi Narain Dutt, III (2007) CPJ 13 (SC)
2. Ajay Navanath Sontakke Vs. New India Assurance Co. Ltd. and Anr., Revision Petition No. 3094 of 2016, decided on 9 Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari 13.12.2016 (National Consumer Commission)
3. Sh. Akkan Khan Vs. The Oriental Insurance Co., Revision Petition No. 3018 of 2007, decided on 15.02.2013
22. In the case of National Insurance Co. Ltd. Vs. Laxmi Narain Dutt (supra) the Hon'ble Supreme Court of India has held as under:-
"5. The decision in Swaran Singh's case (supra) applied to claims which involved only the insurance company and the owner of the vehicle i.e. where there was no third party involved. It has been highlighted by learned counsel for the appellants that Swaran Singh's case (supra) was rendered in the background of Section 149 of the Motor Vehicles Act, 1988 (in short the 'Act') which has no application to cases where there is no third party involved.
8. Section 149 of the Act relates to duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.....
34. The inevitable conclusion therefore is that the decision in Swaran Singh's case (supra) has no application to own damage cases. The effect of fake license has to be considered in the light of what has been stated by this Court in New India Assurance Co., Shimla v. Kamla and Ors. (2001 (4) SCC 342).10
Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari Once the license is a fake one the renewal cannot take away the effect of fake license."
23. In the case of Ajay Navanath Sontakke (supra) the Hon'ble National Commission has held as under:-
"The Hon'ble Supreme Court in the case of New India Assurance Co. Ltd., v. Suresh Chandra Aggarwal decided on 10th July 2009 has held as under:
"16. In the instant case, as noted above, as per the certificate issued by the licensing authority, the driving license of the deceased driver had expired on 25th October, 1991 i.e. four months prior to the date of accident on 29th February, 1992 and it was renewed with effect from 23rd March, 1992. It is not the case of the claimant that the driver had applied for renewal of the license within 30 days of the date of its expiry. On the contrary, it is the specific case of the appellant that the driving license was renewed only with effect from 23rd March, 1992. From a plain reading of Section 15 of the Act, it is clear that if an application for renewal of license is made within 30 days of the date of its expiry, the license continues to be effective and valid without a break as the renewal dates back to the date of its expiry. Whereas, when an application for renewal is filed after more than 30 days after the date of its expiry, proviso to sub-section (1) of Section 15 of the Act, gets attracted and the license is renewed only with effect from the date of its renewal, 11 Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari meaning thereby that in the interregnum between the date of expiry of the license and the date of its renewal, there is no effective license in existence. The provision is clear and admits of no ambiguity. However, the stand of the claimant before the District and State Fora as also before us was that since the deceased driver was holding a valid license and had not been disqualified from holding an effective license, the stipulation in the afore- extracted condition was not infringed. In our view, the argument is stated to be rejected. Admittedly, having failed to apply for renewal of the driving license within 30 days from the date of its expiry in terms of Section 15 of the Act, the license could not be renewed with effect from the date of its expiry and therefore, between the period from 26th October, 1991 to 22nd March, 1992, the deceased driver had no valid and effective driving license as contemplated under Section 3 of the Act. We are convinced that during this period, he did not hold at all an effective driving license, as required in the terms and conditions governing the policy on the date of accident i.e. 29th February, 1992.
18. We are fortified in our view by the decision of this Court in the case of Jarnail Singh (supra). In that case also, the driving license of the driver, who drove the vehicle which got involved in the accident, had expired on 16th May, 1994. The accident took place more than five months thereafter i.e. on 20th October, 1994 and the driving 12 Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari license was renewed only with effect from 28th October, 1996. On these facts, it was held that proviso to sub-section (1) of Section 15 applied; the driver had no license to drive the vehicle on the date of accident; the condition in the policy identical to the one in the present case was violated and therefore, the Insurance Company was not liable to pay any amount to the insured.
24. In the case of Sh. Akkan Khan (supra), the Hon'ble National Commission has held as under:-
"We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The facts of the present case make it clear that when the vehicle, in question, was coming from Bareilly to Haldwani on 01.01.2004, the tyre of the vehicle got burst and the driver lost control over the vehicle resulting the accident. Looking at the circumstances of the case in totality, it cannot be stated that the driver had no role in the accident. Under the Motor Vehicles Act, 1988 and the Rules etc. made thereunder, a Driving License is issued only to that person who is in a position to pass a test as prescribed under the statute. Before operating any vehicle, a driver is supposed to have reasonable good knowledge of the fitness of the vehicle, including the condition of the tyres. It can, therefore, be stated that the factum of the driver, not having a valid license is a relevant factor in the present case. In the order of the 13 Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari Hon'ble Supreme Court cited by the petitioner as reported in (2003 SAR (Civil) 602) it has been stated that the repudiation of a claim for damages for which the driver was not responsible in any manner, is not justified. This authority is obviously not applicable to the facts of the present case. The accident may have occurred due to mechanical defect but it cannot be said that the driver had no role in the matter. Accordingly, the order passed by the State Commission does not suffer from any infirmity and the same is liable to be upheld and we order accordingly. The revision petition stands dismissed with no order as to costs."
25. The above cited case laws are fully applicable to the case in hand. It is proved that the driver Sh. Ram Prakash Singh was not having a valid and effective driving license on the date of accident, i.e. 19.11.2008. The driving license of the driver has already expired on 20.05.2008, i.e. six month prior to the date of occurrence of 19.11.2008 and the above license was renewed on 05.03.2009, i.e. after three and a half months approximately from the date of the accident.
26. As per the above cited case laws, the claim is own damage claim, not the Third Party Claim. As per the terms and conditions of the insurance policy "under the head of Driver's Clause - person including the insured", Provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective Learner's license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989.
14Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari
27. Thus, a perusal of the driving license of driver Sh. Ram Prakash Singh has clearly revealed that on the date of accident, 19.11.2008, the driving license was not renewed as per law by the Licensing Authority and the same has already expired on 20.05.2008, i.e. six months prior to the date of accident and it was renewed after three and a half months from the date of the accident, i.e. 19.11.2008.
28. Thus, the appellant has succeeded to show that on the date of accident the driver of the vehicle in question was not having a valid and effective driving license, hence there had been breach of terms and conditions of the insurance policy and the appellant is not liable to pay awarded insured amount to the respondent - complainant - insured. Accordingly, we are of the opinion that the District Commission has not properly considered this fact that the driver of the vehicle in question was not having a valid and effective driving license on date of accident, i.e. 19.11.2008 and has thereby erred while passing the impugned judgment. The impugned judgment is not according to the mandate provisions of law and it is against the fact and merits of the case. The District Commission has failed to exercise its jurisdiction, which is vested in it and has acted upon with material illegality and infirmity while passing the impugned judgment. Hence, the impugned judgment is perverse and is liable to be set aside. Accordingly, the appeal is liable to be allowed.
29. Appeal is allowed. Impugned judgment passed by the District Commission, Chamoli is hereby set aside and the complaint case is dismissed. No order as to costs.
30. Statutory amount deposited by the appellant, if any, be released in favour of the appellant.
15Appeal No. The Oriental Insurance Company 21.02.2023 332 of 2013 Limited.
Vs. Sh. Nain Singh Bhandari
31. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of this order alongwith original record of the District Commission be sent to the concerned District Commission for record and necessary information.
32. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 21.02.2023 16