State Consumer Disputes Redressal Commission
M/S Kangra Ex-Servicemen Transport ... vs The Oriental Insurance Co. Ltd. on 21 October, 2011
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. ---- FIRST APPEAL NO.169/2009. ORDERS RESERVED ON 23.9.2011 DATE OF DECISION: 21.10.2011. In the matter of: M/s Kangra Ex-servicemen Transport Company through its present Prop. Shri Rajeshwar Singh Pathania son of late Sh. Chamel Singh Pathania, Village Bari, P.O. Bane-Di-Hatti, Tehsil Dehra, District Kangra, H.P. Appellant/Complainant. Versus The Oriental Insurance Co. Ltd. Branch Office, Palampur, District, H.P. through its Branch Manager. Respondent. ---------------------------------------------------------------------------------------------------------------------- Honble Mr. Chander Shekhar Sharma, Member.
Honble Mrs. Prem Chauhan, Member.
For the Appellant: Mrs. Anjali Soni Verma, Advocate.
For the respondent: Mr. Deepak Gupta, Advocate.
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O R D E R:
Chander Shekhar Sharma, Presiding Member.
1. This appeal is directed against the order of the District Forum, Kangra at Dharamshala, dated 20.3.2009 passed in Consumer Complaint No.265/06, whereby the complaint was dismissed by holding that Satish Kumar driver was not holding a valid and effective driving licence at the time of accident and as such claim had been rightly repudiated by the opposite party and it was held that there is no deficiency of service on the part of the opposite party in the present case.
Parties are hereinafter being referred to as per their status in the complaint.
2. Facts of the case as they emerge from the record are that Bus No.HP-40-5537 which was owned by the complainant had met with accident on 28.1.2004 during the subsistence of the policy when it was on its route to Mandi.
Thereafter opposite party was informed about the accident and particulars of driving licence of Satish Kumar, driver, who was on wheel at the relevant time were demanded by the opposite party which were submitted to the opposite party who did not settle its claim despite submission of documents. As such, deficiency of service had been alleged on the part of the complainant.
In this background present complaint under Section12 of the Consumer Protection Act, 1986 was filed against the opposite party.
3. This complaint was resisted and contested by the opposite party who has raised objection relating to the locus standi of the complainant for filing the complaint and pertaining the suppression of material facts from the Forum below and on merits it was alleged that on receipt of claim papers from the complainant, an independent surveyor was appointed who assessed the loss to the vehicle to the tune of Rs.2,73,500/- subject to the terms and conditions of the insurance policy.
It is further pleaded that on verification of the driving licence bearing No.S/33710 of Sh. Satish Kumar son of Jaisi Ram, conducted by Sh. B.L. Sharma, Investigator from Motor Licensing Authority, Una, the same was found fake as is evident from his report Annexure OP-3 placed on record. It is further stated that the duplicate licence of the driver was not originally issued by Motor Licensing Authority, Kangra. Infact, the same was issued by the Motor Licensing Authority, Una.
Hence, it was pleaded that the complainant has committed breach of the terms and condition of the policy. As such, the opposite party is not liable to indemnify the complainant and there is no deficiency of service on their part.
4. Rejoinder to the complaint was also filed wherein the averments made in the complaint were reiterated.
5. Brief resume of evidence led by the parties in nutshell is that the complainant in support of its claim has filed affidavit of Sh. Ramesh Singh Pathania, Proprietor of Kangra Ex-servicemen Transport, Ex.CW.1 and placed reliance upon a number of documents, Annexures C.1 to C.9, which are copy of the driving licence, copy of certificate of registration (RC) of the vehicle, copy of certificate of fitness issued by Motor Licensing Authority, Kangra, copy of certificate of endorsement of the vehicle for HPMV issued by Registering & Licensing Authority (R&LA), Kangra, copy of award dated 2.3.2006 passed in MAC Claim Petition no.23/2004 by the MACT, Hamirpur, copy of award dated 28.2.2006 in M.A.C. No.61 of 2004/59 of 2005 passed by Presiding Oficer, Fast Track Court, Hamirpur, copy of notice of termination of an agreement of Hire Purchase/Lease/Hypothecation, copy of statement of Sh. K.S. Grover, Senior D.M. of the Oriental Insurance Company in MAC Petition No.2004 dated 8.11.2004 titled Smt. Sharda Devi and others Versus Chambel Singh and others, copy of statement of said Sh. Grover in MAC Petition No.21/2004, dated 8.11.2004 in case Naresh Kumar versus Chambel Singh and others and copy of Notice of Termination of an Agreement of Hire Purchase/Lease/Hypothecation, dated 13.11.2006.
6. During the pendency of the appeal, an application for additional evidence was also moved by the appellant for placing on record in evidence the licence of the driver Satish Kumar as well as to take into account NOC issued by the Registering and Licensing Authority, Kangra and this application for additional evidence was allowed vide order 14.9.2010 by this Commission and as such order was passed to the effect that the R&LA, Kangra be summoned to produce or cause to be produced original record in respect of OL-OR-05 Licence No.DL/N/33710/1992-1993 dated 10.3.1992 in favour of Satish Kumar and also the record on the basis of which NOC was issued in respect of the aforesaid driving licence of Satish Kumar. State of Desh Raj working in the office of R&LA, Kangra was recorded on 29.10.2010 and Mrs. Anjali Soni Verma, learned Counsel for the appellant had given up the other witness, namely Sanjeev Kumar on the ground that no record is available with the R&LA, Dehra and had closed her evidence.
7. Opposite party in support of its case has filed affidavit of Shri D.P. Sharma, Investigator, Ex.OPW-1, affidavit of Shri B.L. Sharma, Ex. OPW.2 and also affidavit of Surveyor & Loss Assessor Shri M.L. Mehta, Ex.OPW.3, affidavit of Shri Deepak Sood, Ex. OPW.4, affidavit of Shri Balbir Singh, Ex. OPW.5, affidavit of Shri Sanjay Kumar, Ex.OPW-6 working as M.L.C. in M.L.O, Una and reliance was also placed on various documents, Annexures OP.1 to OP.25, which are, copy of award dated 4.6.2007 passed by MACT-I, Mandi, copy of Memorandum of costs in Claim Petition No.42/2004, Ex.OP.2, copy of award in Claim Petition No.61/2004, dated 8.5.2006 passed by MACT, Mandi, copy of driving licence, copy of statement of Satish Kumar, driver , copy of verification report of DL No.S/33710 dated 10.3.1992 done by Sh. D.P.Sharma, Investigator, copy of letter dated 27.10.2005 addressed to R& LA, Una by Shri D.P. Sharma, Investigator, copy of letter dated 3.2.2006 by the Branch Manager of Insurance Company addressed to the complainant, copy of investigation report dated 14.6.2005 by Shri Rajan Sharma, Advocate, copy of policy schedule, copy of policy, copy of letter dated 3.2.2006 addressed to the complaint by the Insurance Company, copy of investigation report of Er.Deepak Sood, dated 8.5.2004, copy of Motor Spot Survey report of Er. Deepak Sood, dated 8.5.2005, copy of final survey report of M.L. Mehta & Co., dated 16.7.2004, copy of statement of Sh. Manga Ram Verma, Licence Clerk, R&LA office, Una, dated 18.4.2006 , copy of record of licences in the R& LA office, Una, copy of award dated 8.5.2006 passed by MACT-I, Mandi in Claim Petition No.61/2004, copy of statement of Satish Kumar, driver, copy of statement of Sh. Manga Ram Verma Licensing Clerk, R&LA office, Una, copy of statement of Sh. Chandu Lal, Licensing Clerk, R & LA office, Kangra and statement of Sh. Manga Ram Verma, Licence Clerk, R&LA office, Una.
8. During the pendency of the complaint, an application was also made by the Insurance Company for summoning the Clerk of the office of R&LA alongwith record and this application was allowed by the Forum below vide order dated 2.4.2008 and as such statement of Licence Clerk, office of R&LA, Una Shri Sanjay Kumar and Shri Nirbhay Kumar of the office of R&LA, Kangra were recorded.
9. We have heard learned Counsel for the parties at length and have also gone through the record of the case minutely. Mrs. Anjali Soni Verma, learned Counsel for the appellant argued that the order of the Forum below is not legally sustainable and the Forum below had wrongly placed reliance upon the report of the Investigator Shri D.P. Sharma, Ex. OPW.1 and upon the affidavit of Shri B.L. Sharma, Ex. OPW.2 and investigation report given by Sh. Rajan Sharma, Annexure P.10 and also upon the affidavit of Shri Deepak Sood. Since the enquiries which were made by them pertains to DL No.S-33710 but additional evidence which had been led on record pertaining to proving of the renewal of the licence of the driver reveals that the licence No. of the driver Satish Kumar was in the series of DL/N, as such order of the Forum below is not legally sustainable even undue importance was given to the statement of the driver recorded by Shri Deepak Sood and as such original licence of the driver issued by the R&LA, Una cannot be said to be a fake which was the only basis for rejecting the present complaint. As such grave miscarriage of justice has been caused in the present case.
10. Mr. Deepak Gupta, learned Counsel for the respondent had supported the order of the Forum below. As per him, the Forum below had rightly placed reliance upon the affidavit of Shri D.P. Sharma, Investigator Ex. OPW.1 and upon the affidavit of Shri B.L. Sharma, Ex. OPW.2 and affidavit of Sh. Deepak Sood, Ex.OPW.4 from which it is very clear that the duplicate licence, Annexure C.1 which is alleged to have been issued in favour of Satish Kumar by the said Licensing Authority is not genuine one as it has not been issued by the Licensing Authority, Una. As per him, during the appeal only renewal of the licence issued in favour of satish Kumar, driver had been got proved from the R&LA, Kangra. As such when the original licence is fake, then it will not validate the licence which was renewed on the basis of fake licence.
In support of his contention, he has also relied upon the judgments of the Honble Supreme Court in the case of United India Insurance Co. Ltd., Versus Davinder Singh, 2008 ACJ 1, in National Insurance Co. Ltd. V. Laxmi Narain Dhut, AIR 2007 SUPREME COURT 1563 and decision of the Honble High Court of Himachal Pradesh in the case of Premi Devi and others Versus Smt. Sushil Kumari and others, 2010 (3) Him L.R.1406.
11. We have heard learned Counsel for the parties and have gone through the record of the case minutely. After going through the record of the case, we are of the considered view that there is no infirmity in the order of the Forum below since in this case from the evidence on record viz. affidavit of Sh. D.P. Sharma, Investigator and affidavit of Shri B.L. Sharma, OPW.2 and statement of Sh. Deepak Sood and the statement made by the Junior Assistant, Office of R& LA office, Una, this fact is amply proved on record that driving licence, Annexure C.1 had not been issued by the R&LA, Una and the appellant during the course of the proceedings of this appeal after giving an application for additional evidence which was allowed by this Commission vide order dated 14.9.2010 had only got produced the renewed licence of Satish Kumar which was issued by the R& LA, Kangra but in this case this fact had been amply proved from the evidence on record that the original licence which had been issued by the R&LA, Una, was fake and it will not validate the renewed licence since it is a settled principle of law that the if the original licence is fake, then in case of renewed licence it will also be presumed that it is fake. In this regard our view is supported by the judgments of the Honble Supreme Court in the case of United India Insurance Co. Ltd. Versus Davinder Singh and National Insurance Co. Ltd. Versus Laxmi Narain Dhut, (supra). In both these judgments, the Honble Supreme Court has concluded that if the original licence is fake one and then its renewal would not cure the inherent fatality.
12. No other point was urged.
In view of the aforesaid discussion and facts and circumstances of the case, we are of the considered view that there is no merit in the present appeal and consequently it is dismissed and as such order of the District Forum, Kangra at Dharamshala, passed in Consumer Complaint No.265/2006, dated 20.3.2009 is maintained. No order as to costs.
Copy of this order be sent to the parties free of cost as per rules.
Shimla, Announced on October 21, 2011.
( Chander Shekhar Sharma ) Presiding Member ( Prem Chauhan ) Member