ASHOK KUMAR vs MANAGING DIRECTOR, ORIENTAL INSURANCE CO.LTD

BY this complaint, the complainant has prayed that he should be awarded an amount of insurance claim of Rs. 5,56,340/-, damages for deficiency in services/loss of time/mental torture etc. of Rs. 2,00,000/- alongwith interest @ 18% per annum from the date of presentation of the claim.

THE relevant facts necessary to be mentioned for determining the point in controversy as set up by the complainant are that the complainant purchased a new vehicle Tata Truck in the year 1994 and got the Registration No. HP-20-1146. THE complainant got this vehicle insured with the respondents (hereinafter to be referred to as the Insurance Company) vide Cover Note, Annexure A-l for the period from 16.12.1994 to 15.12.1995. THE aforementioned vehicle while it was being driven by the driver one Shri Labh Chand was loaded with potatoes from Lahaul-Spiti to Manali. On reaching near Keylong, the road gave way (retaining wall) and the vehicle rolled down into Shakhas Nallah about 400 ft. down and was badly damaged. A report was lodged with the Police Station, Keylong on 18.10.1995 vide FIR No. 81/95 and the claim was preferred by the complainant with the Insurance Company and the Insurance Company appointed a Surveyor Mr. Yog Raj to conduct spot survey. THE vehicle was retrieved in dismantled condition from the Nallah. Mr. Prem Kumar Gupta, the Surveyor & Loss Assessor, Chandigarh vide his report (Annexure R-11) dated 29.1.1996 assessed the loss and also stated that though the insured was reluctant to give the consent for Rs. 5,00,000/- less clause, but after a lengthy discussion and persuasion, he has been able to make him convinced and agreeable for the settlement of loss of Rs. 4,98,500/- as net payable. Inspite of survey report and the settlement between the Surveyor and the complainant, the claim, according to the complainant, has not been settled and hence complaint. The complaint has been resisted by the Insurance Company on the ground that the complainant has not co-operated in the settlement of the claim by the Insurance Company, as the copy of the original driving licence (before renewal) was not supplied nor the Licencing Authority alleged to have issued original driving licence to the driver of the vehicle, namely Shri Labh Chand was disclosed. Further, according to the Insurance Company, driver of the vehicle was not holding an effective and valid driving licence and as such, the condition of contract of insurance was breached and there was no deficiency of service on the part of the Insurance Company and that the complainant is not entitled to any claim. Further, according to the complainant, they have appointed one Mr. Yog Raj, the Surveyor who has conducted the spot survey of the accidented vehicle and furnished his report dated 16.10.1995 to the Insurance Company (respondent No. 3). The Insurance Company had requested the complainant on many occasions to supply the copy of the original driving licence of the driver of the vehicle Shri Labh Chand, but the same was not been supplied. On the other hand, instead of furnishing the original driving licence of the driver of the vehicle Shri Labh Chand, the complainant has written a letter dated 15.9.1996 (Annexure R-I) through his Advocate to the Insurance Company that they are asking for irrelevant documents, as the licence of the driver was renewed year after year by the Licencing Authority at Sundernagar after exhaustive verification. Moreover, for the purpose of verifying die genuineness of the Driving Licence No. L-7896/GHT/80 supplied by the complainant, the Insurance Company deputed M/s. Sagar Investigating Agency, Guwahati to confirm about the genuineness of the licence and Shri Bankim Dass vide report dated 13.5.1996 stated that the District Transport Officer, Kamrup (West Zone), Guwahati, had informed in writing that the Driving Licence No. L-7896 /GHT/80 in the name of Shri Labh Chand was not issued from that office. In substance, the claim of the complainant has been rejected by the Insurance Company on the ground that the licence of the driver Shri Labh Chand at the relevant time was not a genuine licence, but a fake one and in terms of the contract of insurance entered into by the Insurance Company with the complainant, such a claim is not tenable.

We have heard Mr. Dharamvir Sharma, learned Counsel for the complainant and Mr. Ashwani Kumar Sharma, learned Counsel for the Insurance Company at length.

THERE is no dispute that the accident took place on 18.10.1995 while the Truck was loaded with potatoes from Lahaul-Spiti to Manali and near Keylong, the road gave way and the vehicle rolled down deep into Shakhas Nallah about 400 ft. down and was badly damaged. THERE is further no dispute that at the relevant time when the accident took place, the insurance policy was in force and the complainant was entitled to insurance claim under the terms of the contract of insurance if otherwise permissible in terms of the insurance policy. However, the learned Counsel for the Insurance Company has very strongly urged and reiterated his argument time and again that the driver Shri Labh Chand, who was driving the vehicle, admittedly, at the time of accident, was not having a valid driving licence and it was a fake. The so-called original licence has no doubt been renewed by the Licencing Authority, Sundernagar from time to time, but the renewal itself cannot clothe it with legal validity unless it is proved that the original licence issued by the Licencing Authority, Kamrup, Guwahati was genuine. This argument has been advanced with a view to substantiate that the licence was fake and invalid in view of the Rule 26 of the Motor Vehicle Rules. Mr. Ashwani Kumar Sharma, the Counsel for the Insurance Company has relied upon the so-called statement of Shri Labh Chand dated 15.12.1996 (Annexure R-7) whereby he has stated that Licence No. L-7896/GHT/80 was got issued to him by his teacher and he has not got this licence himself and he did not know anything about this licence. This statement is alleged to have been given by the complainant before the Branch Manager of the Insurance Company. No affidavit, admittedly, has been filed by the Branch Manager of the Insurance Company, Kullu to this effect and hence this document does not stand proved. On the other hand, Shri Labh Chand, driver of the vehicle has filed an affidavit (page 6-A of the file refers to) whereby the position has been explained by him that he has been driving heavy vehicle since 1980 and the said original licence was issued to him in Guwahati and since he has settled permanently at Sundernagar, he has been getting it renewed at Sundernagar in Mandi District from time to time and lastly renewed upto 28.11.1995 and at the relevant time, when the accident took place, he had a licence which was renewed by the Licencing Authority, Sundernagar. He has further stated that his original licence was deposited with the Police at Keylong, District Lahaul & Spiti where a case before the Chief Judicial Magistrate, Keylong was pending trial and the next date of hearing was fixed for 28.6.1997. There is no rebuttal to such an affidavit and therefore, there is no reason why it should not be relied upon. The position has been satisfactorily explained in the affidavit by Shri Labh Chand and his so-called statement (Annexure-7) which has not been proved as discussed earlier cannot be taken into consideration and we have to assume that the original licence of the driver was deposited by him with the Police at Keylong where a case before the Chief Judicial Magistrate is pending trial.

CONFRONTED with the situation, Mr. Ashwani Kumar Sharma, learned Counsel for the Insurance Company submits that although the original licence might have been issued by the Licencing Authority, Guwahati, but the duplicate original driving licence cannot be issued by the Licencing Authority, Sundernagar under Rule 26 of the Motor Vehicles Rules and such a licence, therefore, cannot have a legal validity. He has relied upon a letter dated 6.12.1996 (Annexure R-9) of Registering & Licencing Authority, Sundernagar alongwith letter dated 23.3.1996 (Annexure R-2). It is not necessary to examine this submission, as we have already discussed above that the original licence of the driver Shri Labh Chand was deposited by him with the Police at Keylong where a case before the Chief Judicial Magistrate is pending trial. Even if we assume that duplicate of original licence was issued by the Licencing Authority, Sundernagar this argument is of no consequence, as the original licence was deposited by the driver with the Police at Keylong. The reliance placed on the letter dated 6.12.1996 (Annexure R-9) by the Counsel is also misplaced. The Licencing Authority, Sundernagar has written this letter in response to the letter of the Insurance Company requiring information regarding the Licencing Authority which has issued the original licence to Shri Labh Chand. In that context, the Licencing Authority, Sundernagar has staled that the papers in connection with the issue of concerned licence have been destroyed upto 31.3.1990 and it cannot be said that which Authority has originally issued the driving licence to Shri Labh Chand. According to the duplicate register, duplicate of the original licence might have been issued by the Licencing Authority, Sundernagar to Shri Labh Chand, driver. Irrespective of whether the Licencing Authority, Sundernagar has issued the duplicate original licence, the Insurance Company can only succeed if they are able to show and substantiate that the original driving licence issued by the Licencing Authority, Kamrup, Guwahati was in fact not issued by that Authority. Merely issuing of duplicate licence of the original by the Licencing Authority, Sundernagar cannot advance the case of the Insurance Company. Again, the letter of the Advocate Mr. Tek Chand Goel, dated 23.3.1996 (Annexure R-2) is of no consequence, as this letter has been written by the Advocate and has nothing to do with the Licencing Authority, Sundernagar. The learned Counsel for the Insurance Company next contends that the original licence is alleged to have been issued by the Licencing Authority, Kamrup, Guwahati, although factually no such licence has been issued by that Authority to Shri Labh Chand, as they have found from the enquiry made from the Licencing Authority, Guwahati. Merely the Licencing Authority, Sundernagar has renewed such a so- called licence cannot clothe it with legal validity. The Counsel has drawn our attention to Annexure R-4-a letter written by the Surveyor Mr. Bankim Dass dated 13.5.1996 to the Regional Manager, Oriental Insurance Co. Ltd., Ulubari, Ghy. 7 whereby he has verified from the Licencing Authority, Kamrup, Guwahati whether the Driving Licence No. L/7896/GHT/80 in favour of Shri Labh Chand has been issued by that authority and the endorsement on the letter of the Surveyor Mr. Bankim Dass recorded by the District Transport Officer, Kamrup, West Zone, Guwahati is as under : "Returned in original with the intimations that Driving Licence No. L/7896/GHT/80 was not issued from this end".

According to such endorsement, the licence, in question, has not been issued by that Authority. This submission also has no force at all. At the very outset, we may notice that he Driving Licence No. L/78976/GHT/80 alleged to have been verified by the District Transport Officer, Kamrap, Guwahati does not bear the date. Again, it has not been shown whether the District Transport Officer, Kamrup, West Zone, Guwahati is the same person as the Registering & Licencing Authority, Guwahati. Apart from that, ho affidavit has been filed either by the Investigator/Surveyor Mr. Bankim Dass who wrote a letter to the District Transport Officer, Kamrup, Guwahati nor has any affidavit been filed by the District Transport Officer, Guwahatti, who are the appropriate person to state whether or not such a licence has been issued by the Registering & Licencing Authority, Guwahati. Furthermore, it is not clear from the endorsement as to who has inspected the record and for what period and that such a licence by him was not found to have been issued by that Authority. Since such documents have not been proved at all, no note can be taken of such documents. There is no dispute that this licence has been renewed from time to time by the Licencing Authority, Sundernagar on the basis of which the driver Shri Labh Chand was driving the vehicle during the relevant period. It is a settled principle of law that it is the Insurance Company which has to substantiate that the licence of the driver was fake and not the genuine one. Having regard to over-all circumstances of the case aforementioned, we have no hesitation to hold that the driving licence of the driver who was driving the vehicle at the time of accident was genuine and not a fake one and the Insurance Company is not justified at all in repudiating the claim of the complainant and the deficiency of service is writ large on the face of it.

THE next question that arises for consideration is as to what should be the quantum of compensation payable to the complainant. THE Surveyor Mr. Prem Kumar Gupta vide his report dated 29.1.1996 (Annexure R-11) has assessed the claim for an amount of Rs. 4,98,500/- and it has been observed by him that this claim, in fact, has been settled by him with the complainant and in fact the complainant was not initially agreeable to accept this claim and, however, after lengthy discussions and persuasion, the complainant has agreed for such settlement. Even in accordance with the settlement a consent letter (Annexure R-l 2) was taken from the complainant where the settlement was reached on the amount of Rs. 4,98,500/-. It is regrettable that in spite of the settlement having been reached between the Surveyor appointed by the Insurance Company with the complainant, the Insurance Company did not settle the claim. A bit of application of mind by the Insurance Company could have avoided such a prolonged litigation. THE payment of the amount of settlement according to the Surveyor, however, shall be subject to the deposit of salvage as given in the report of the Surveyor with the Insurance Company. If the complainant is notable to deposit certain items of salvage, value of those items shall be deducted from the awarded amount of Rs. 4,98,500/-. THE complainant will deposit the salvage within 10 days with the Insurance Company before the office of any of the respondents and after the deposit of the salvage, the Insurance Company will pay the amount within 30 days. THE complainant shall also be entitled to interest @ 18% per annum on the .amount of settlement from the date of filing the complaint i.e. 27.2.1997 for the reasons that the vehicle has been purchased by the complainant as per statement of Mr. Dharamvir Sharma, learned Counsel for the complainant, after raising loan from the Bank and he had to pay more than 18% interest for the delayed payment of instalments. Other relief(s) are refused.

IN the result, the complaint is allowed and the complainant is awarded an amount of Rs. 4,98,500/- subject to the deposit of salvage with the INsurance Company. IN case, the complainant is not able to deposit any of the items of the salvage, as referred to in the report of the Surveyor dated 29.1.1996 (Annexure R- 11), that amount shall be deducted from the awarded amount. The complainant shall also be entitled to interest on the awarded amount @ 18% per annum from the date of filing the complaint i.e. with effect from 27.2.1997 till the payment is actually made. The complainant shall deposit the salvage within 10 days and within 30 days thereafter, the INsurance Company will pay the awarded amount. The INsurance Company shall also be liable to pay the costs, which we assess at Rs. 500/-. Complaint allowed with costs.