Balvinder Singh vs Oriental Insurance Co. Ltd.

-THIS appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 4.1.2003 in Complaint No. 486/2002 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called the ''District Forum'' for short) dismissing the complaint of the complainant/appellant.

THE relevant facts not in dispute stated in brief are : that Truck bearing registration No. MP 23D-6051 was insured with the respondent insurer company. This truck was driven by driver Rajesh Kumar Sahu. On 12.4.2001 the said truck met with an accident and got damaged. THE complainant/appellant intimated about the accident to the respondent/insurer who appointed Surveyor Sunil Banchhor. THE said Surveyor visited the spot on 12.4.2001, and also took photographs of the vehicle. THE Surveyor submitted his report dated 26.4.2001. Subsequently, another Surveyor Sheo N. Taori was appointed by the respondent insurer who submitted his report on 12.7.2001 assessing the loss at Rs. 35,159/- and value of the salvage to Rs. 500/-. The complainant averred that though he had intimated about the accident and the report of the Surveyor had also been received, the respondent/insurer did not settle his claim for a long period. Therefore, the complainant/appellant sent notice to the insurer on 3.9.2002. A reply of the said notice was sent by the respondent/insurer on 7.9.2002, in which it was stated by the respondent/insurer that the claim of the complainant/appellant has been disallowed. According to the averment of the complainant he was entitled to get compensation due to damage to the truck, under the said policy issued by the respondent/insurer. It was also averred that the respondent/insurer did not care to settle his claim for a long period and thus committed deficiency in service. It was further averred that even if the respondent/insurer found that the driver did not have proper and effective licence, his claim should have been treated as non-standard one and compensation should have been paid to him accordingly.

The respondent/insurer resisted the complaint as above. The averment of the respondent mainly was that on inquiry by the Surveyor it was discovered that the original licence of the driver of the vehicle was fake, and thus the complainant having breached the terms of the policy was not entitled to any compensation. He was accordingly informed when he visited the office of the respondent/insurer. It was further averred that there was no deficiency in service by the respondent/insurer.

LEARNED District Forum upheld the contentions of the respondent/insurer and held that as the original licence of the driver was found to be fake, the complainant was not entitled to any damages. The complaint was accordingly dismissed. The contention of the learned Counsel for appellant is that the respondent/insurer has not satisfactorily proved that the licence of the driver was fake. It was further urged that the complainant did not act with negligence in accepting the licence produced by the driver Rajesh Kumar Sahu as genuine and, therefore, it could not be held that the complainant committed breach of policy conditions. It was further submitted that the respondent/insurer was obliged to pay him the amount as assessed by the Surveyor.

HOWEVER, the learned Counsel for respondent insurer supported the impugned order. It was urged that the complainant had committed breach of terms of policy as the vehicle was driven by a person whose licence was found to be fake as the same was not issued by the competent Licensing Authority. Learned Counsel relying upon the decision of the National Commission M/s. Essma Felts Pvt. Ltd. v. United India Insurance Co. Ltd. and another submitted that a fake licence cannot be validated by subsequent renewal thereof. Hence, the repudiation of the claim of the complainant by the respondent would not amount to deficiency in service. The main question that deserves to be considered in the instant case is as to whether the complainant was guilty of committing breach of policy condition, inasmuch as he permitted the vehicle to be driven by an unlicensed driver and as to whether he is entitled for any compensation? It may be noticed that the vehicle at the time of accident was undisputably being driven by Rajesh Kumar Sahu. The copy of the driving licence of Rajesh Kumar Sahu is on the record of District Forum, which indicates that the said licence was issued on 16.6.1986. It also appears from the copy of said licence that it was renewed from time-to-time by Licensing Authority at Bilaspur. Though the respondent insurer averred that the driver did not have effective and valid driving licence and thus the complainant committed breach of policy, but the written version of the respondent mentions no particulars as to how and why the driving licence was not valid and effective. Thus in the written version it has not been specifically pleaded as to on what basis the respondent insurer averred that the licence of the driver was not valid and effective. In our opinion such particulars ought to have been properly pleaded and proved by the respondent insurer.

IT may also be noticed in the above context that the respondent has placed certain documents on record showing that the licence was not issued by R.T.O., Jhansi. Copy of letter dated 3.6.2001 of one V.K. Gupta, investigator has been placed on record. However, the respondent has not mentioned in its written version that V.K. Gupta was appointed investigator, though the said fact has been stated on affidavit by V.J. Sen, Sr. Regional Manager of the respondent/insurer. IT may further be noted that a document purportedly signed by the Licensing Authority, Jhansi which states that licence No. 6790/1987 has not been issued in favour of Rajesh Kumar Sahu but was issued in favour of Jaswant Singh was enclosed with the copy of the said letter dated 3.6.2001. IT may be mentioned in the above regard, that the original of the said document was not produced in the District Forum and the said original document has been filed in this appeal with an application under Order 41 Rule 27 along with some other documents. Though according to the said document purportedly issued by Licensing Authority, Jhansi, licence No. 6790/Jhansi/87 was not issued in favour of Rajesh Kumar Sahu, but there is nothing on record to indicate as to from where the said licence number was obtained by the respondent/insurer. The photo-copy of the licence of Rajesh Kumar Sahu shows that his driving licence bears No. R/5959/1986. We do not find any mention of licence No. 6790/JHS/87 as mentioned by investigator V.K. Gupta, and the RTO, Jhansi.

THUS from the above it is not proved that the driving licence renewed by R.T.O., Bilaspur bore original licence No. 6790/1987 of the licensing authority, Jhansi. It was for the respondent insurer to have properly pleaded and proved the fact of inquiry and investigation made by it regarding the genuineness of the sid licence. It has, however, failed to do so, and has not placed relevant documents on the record of District Forum and has also not specified relevant material facts in its written version. In the circumstances, it is clear that the respondent/insurer failed to prove that the original licence of the driver was fake. It may also be noticed that the respondent/insurer has failed to place relevant material on record to prove that the original driving licence was issued by the Licensing Authority, Jhansi or that it was not genuine. The insuer has also not placed any material to show that the complainant/appellant had been negligent in permitting the driver Rajesh Kumar Sahu to drive the vehicle. As already mentioned that according to the photo copy of the licence produced by the complainant the licence appears to have been issued long back in the year 1986 and it was renewed from time-to-time by the Licensing Authority, Bilaspur. There was, therefore, no reason for the complainant to suspect the genuineness of the said licence and to believe that the original licence was fake. In fact as noticed earlier from the perusal of photo-copy of the licence produced, there appears to be no reason to infer or suspect that the original licence was issued by R.T.O., Jhansi.

It may be noticed that recently the Supreme Court in National Insurance Co. v. Swaran Singh & Others, I (2004) ACC 1 (SC)=I (2004) SLT 345=2004 ACJ 1 has laid down that the Insurance Company in order to avoid their liablility must not only establish the available defence raised by them but should also establish breach on the part of owner of the vehicle and that the burden of proof wherefor would be on them. It was further laid down that the question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise) fulfils the requirement of law or not will have to be determined in each case. Reference was also made to the decisions of Supreme Court in case United India Insurance Co. v. Lehru, II (2003) SLT 516=II (2003) ACC 611 (SC)=2003 ACJ 611 (SC). It was pointed out that the observations made in Lehur''s case must be understood to have been made in the light of requirement of law in terms whereof the insurer is to establish wilful breach on the part of the insured. It was further held that the decision in the said case does not take away the right of the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver to raise any defence or owner to be absolved from any liability whatsoever. The decision of Supreme Court in New India Assurance Co. Ltd. v. Kamla, III (2001) SLT 150=I (2002) ACC 346 (SC)=2001 ACJ 843 (SC) was also referred to and it was observed that the defence to the effect that the licence held by the person driving the vehicle was fake one would be available to the Insurance Company, but whether despite the same, the plea of default of the owner has been established or not would be a question which will have to be determined in each case.

IN the instant case, as we have already noticed, there is no averment or material placed on record on behalf of the respondent, to show that there was negligence or omission on the part of the complainant in verifying the genuineness of licence. Thus in the absence of plea or proof of omission of wilful breach on the part of the complainant owner, it is not possible to hold that the complainant/appellant committed breach of terms of policy, by permitting Rajesh Kumar Sahu to drive the vehicle. IN view of the above facts and the decision of the Supreme Court in Swaran Singh (supra) the decision in M/s. Essma Felts (supra) would not be of much assistance to the respondent''s case. It may further be noticed that the respondent/insurer did not repudiate the claim of the complainant till notice was served on the respondent/insurer by the complainant/appellant on 3.9.2002. The respondent/insurer in it reply dated 7.9.2002 stated that the file has been closed as the driver did not have effective and valid driving licence. Obviously, by not settling the claim of the complainant and in not repudiating his claim within reasonable time, the respondent/insurer committed deficiency in service.

IN view of the above it is clear that the complainant is entitled to get compensation. It is not in dispute that the Surveyor Sheo N. Taori by his report dated 12.7.2001 had assessed the loss of Rs. 35,159/- and assessed salvage value at Rs. 500/-. IN view of the above, complainant/appellant appears to be entitled to recover as damages Rs. 34,659/- from the respondent/insurer. Accordingly, this appeal and the complaint are allowed. The respondent insurer shall pay to the complainant/appellant a sum of Rs. 34,659/- with interest @ 9% per annum from the date of complaint, till payment. Respondent/insurer shall also pay to the complainant/appellant cost of this appeal which is quantified at Rs. 500/-. Appeal allowed. -