NATIONAL INSURANCE COMPANY LIMITED vs DILBAGH RAI SHARMA

THIS is an appeal filed against judgment and order dated 3.12.2001 passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter referred to as District Forum) in Complaint Case No. 1048 of 1997 filed by Sh. Dilbagh Rai Sharma of Delhi Shimla Goods Carrier (Regd.), Plot No. 6, Transport Area, Chandigarh allowing the complaint and directing the O.Ps.-appellants Regional Manager and Branch Manager of National Insurance Company Limited, both having offices at Chandigarh in Sector 34 and Sector 17-D, Chandigarh, to pay to the respondent/complainant a sum of Rs. 1,97,812/- along with interest @ 10% per annum from the date of repudiation i.e., 30.5.1996 till its payment.

UNDISPUTEDLY, truck bearing No. HR-03-8414 was insured comprehensively with the National Insurance Company Limited (for short hereinafter referred to as the Insurance Company) vide policy of insurance bearing No. 31/94/640857. On 7.3.194, the truck aforesaid was being driven by driver Shri Satish Kumar when it met with an accident near village Saha on the way from Chandigarh to Delhi. The truck was damaged extensively and in the accident Shri Balwinder Singh, cleaner of the truck died at the spot. An FIR No. 63 dated 8.3.1994 was registered and a claim was filed by the respondent/complainant with the Insurance Company/appellant under the policy of insurance. The claim was repudiated by the appellant Insurance Company on the ground that at the time of the accident, the truck in question was being driven by the cleaner Shri Balwinder Singh who did not hold a valid driving licence and since the complainant contravened the terms and conditions contained in the policy of insurance by permitting the cleaner of the truck having no driving licence to drive the truck, and as such the claim was repudiated. The respondent/complainant filed the complaint case alleging deficiency in service on the part of the Insurance Company in repudiating the claim filed by the respondent/complainant who reiterated the fact that at the time of the accident, the truck was being driven by the driver Shri Satish Kumar who had valid driving licence and it was categorically denied that the cleaner of the truck Shri Balwinder Singh holding no driving licence was at the steering and driving the truck. The notice of the complaint case was issued to the O.Ps.-Insurance Company who put in appearance and filed reply wherein the factum of the truck being insured comprehensively with the Insurance Company was not denied and it was also not denied that the appellant-Insurance Company had issued a policy of insurance in respect of the said truck. However, the Insurance Company took a plea that the truck was driven by a person who was not authorized to drive the truck and he had no valid driving licence. The respondent/complainant filed his own affidavit whereas appellant Insurance Company filed affidavit of Shri P. Singh.

The District Forum held that the mere fact that FIR contained an averment about Shri Balwinder Singh driving the vehicle at the time of the accident was not sufficient to record a clear and categorical finding that the truck was in fact being driven at the time of accident by Shri Balwinder singh, cleaner of the truck. The District Forum mentioned that after the truck met with an accident, Shri Satish Kumar and Shri Sukhdev, Coolie left the scene of occurrence and the cleaner of the truck was killed at the spot where accident happened and in the absence of Shri Satish Kumar and Shri Sukhdev, FIR was lodged by the cleaner of some other truck who wrongly told the name of Shri Balwinder Singh, cleaner. Later on, the police authorities after investigation corrected the name of the driver Shri Satish Kumar and a writing to that effect was also given by the police. In the claim form, the name of the driver was mentioned as Shri Satish Kumar. The investigation report dated 1.3.1995 also corroborated the version of the respondent/complainant as its copy was placed on record by the Insurance Company. The driving licence of Shri Satish Kumar, driver was got verified by the Insurance Company and it was found to be genuine. The respondent/complainant had done all, which was within his power inasmuch as he had engaged the licensed driver and placed the vehicle in charge of a licensed driver with the express or implied mandate to drive himself and if accident took place, the Insurance Company could not escape from its obligation to indemnify the insured.

RESULTANTLY, the complaint was lodged and compensation was awarded with interest after recording the finding that repudiation of the claim by the Insurance Company amounted to deficiency in service. It may be pointed out that the learned Counsel for the Insurance Company referred to the affidavit of Shri S.P. Singh, Assistant Divisional Manager who deposed, inter alia, that a false claim had been filed by adopting unjustifiable means. The repudiation of the claim by the Insurance Company, it was deposed in para 6, was done after examining each aspect of the controversy and the order of repudiation was based on information collected by the Insurance Company, which was strictly in accordance with law. There was gross violation of conditions of insurance policy and Motor Vehicles Act inasmuch as the truck at the time of accident was being driven by a person who did not hold a valid driving licence. Shri Gulzar Singh, Assistant Divisional Manager of the Insurance Company also filed his affidavit deposing, inter alia, as under: "From the in-depth investigations carried out by the deponent-company, it has come out very clearly that the actual driver who was on the steering wheel at the relevant time the occurrence had taken place was without a proper and effective driving licence and to cover up this lapse, it was alleged that it was in fact Satish Kumar and not Balwinder Singh and to plug this lacuna the complainant came out with the fabricated averments."

IN para 2, it was deposed, inter alia, that in the initial FIR, the name of Shri Balwinder Singh had been mentioned in clear and in no uncertain terms as a driver. It was deposed in para 3 that there was no manner of doubt that it was Shri Balwinder Singh who was the driver and the name of Shri Satish Kumar had been coined to cause wrongful loss to the insurer and with a view to bring the controversy within the ambit of Consumer Courts jurisdiction. The complainant/respondent filed his own affidavit and deposed about the truck being driven by Shri Satish Kumar who hold proper driving licence. He also referred to the fact that the lodger of the FIR was one Sh. Satpal Parkash son of Sh. Manohar Lal (Harijan) who was not travelling by the truck in question and he had no knowledge about the fact regarding the truck having been driven by Shri Balwinder Singh whose name was mentioned in the FIR describing him as driver of the truck. Since the lodger of the FIR had no personal knowledge regarding the facts of the accident, not much significance can be attached to the contents of the FIR, which is not a piece of substantive evidence and which is at best of corroborative value. The Surveyor, Loss Assessor and Investigator Shri R.K. Maini, Automobile Engineer, submitted his report dated 20.2.1997 in which he referred to the name of the driver as Shri Satish Kumar mentioning his driving licence and also mentioned about the fact that it was verified by him from the Licensing Authority-cum-RTO, Ambala Cantt. and its bona fide were confirmed by the said authority. Shri R.K. Maini was not examined by the appellants. The two Assistant Divisional Managers who filed their affidavits did not investigate the matter personally. The report of the investigator, which had been placed on record in the form of photocopy mentions at internal page 3 that the name of the driver had been wrongly given in the FIR and on the basis of the statement of the persons mentioned in the report, the police took the wrong name of the driver as Shri Balwinder Singh instead of Shri Satish Kumar. To establish this fact, on coming in their knowledge, they corrected police report by giving fresh statement in the police record at P.S. Mullan by Mr. Satish Kumar. The very basis of the repudiation of the claim was the truck being driven by Shri Balwinder Singh, as mentioned in the FIR, has since been found to be incorrect and the police had corrected the record and mentioned the name of the driver as Shri Satish Kumar whose driving licence was taken into consideration by the investigator Shri R.K. Maini and who got the driving licence of Shri Satish Kumar verified by the Licensing Authority-cum-RTO and found to be bona fide and genuine.

THE District Forum has thus rightly held that the Insurance Company was deficient in rendering service under the policy of insurance by wrongly repudiating the claim of the complainant/respondent. We find no merit in this appeal, which is dismissed with costs, which we quantify at Rs. 250/-.

COPIES of this order be sent to the parties free of charge. Appeal dismissed.