NEW INDIA ASSURANCE CO LTD vs Musharaf Alam

THE New India Assurance Co. Ltd. (hereinafter referred to as the ''Petitioner '') has filed this revision petition being aggrieved by the order of the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the ''State Commission '') in Appeal No. 200/2007 which was decided in favour of Musharaf Alam, Respondent herein, and original complainant before the District Forum.

IN his complaint, Respondent had contended that he had got his vehicle bearing No. HR 38H 6629 comprehensively insured from the Petitioner/Insurance Company for a sum of Rs. 5,06,041 from 27.3.2005 to 26.3.2006. During the subsistence of the insurance policy, the vehicle on its way to Belgam met with an accident in which it was substantially damaged. Respondent informed the Petitioner/Insurance Company who got the loss assessed from the Surveyor and a sum of Rs. 53,000 was paid by Respondent towards its repairs. Respondent thereafter submitted his claim along with all the required documents to Petitioner/Insurance Company. However, despite this Petitioner/Insurance Company delayed settlement of the claim on various pretexts and finally repudiated the samevide letter dated 8.9.2005 on the ground that the driver who was driving the vehicle did not hold a valid driving licence on the date of accident. According to the Respondent, the driver namely, Shri Harish was holding a valid driving licence and also that he had been employed only after Respondent had tested his driving skills. Since Petitioner/Insurance Company did not accept this contention, Respondent filed a complaint before the District Forum on grounds of unfair trade practice and deficiency in service and requested that the Petitioner/Insurance Company be directed to pay the Respondent a sum of Rs. 53,000 spent on the repairs of the vehicle along with interest @ 18%, Rs. 30,000 as compensation for mental agony as well as costs as deemed appropriate. The Petitioner/Insurance Company while accepting that the vehicle met with an accident and as per Surveyor, the loss was assessed at Rs. 49,743 stated that it had rightly repudiated the claim on the grounds that the driver was not holding a valid driving licence at the time of the accident and that Respondent had submitted a fabricated and forged driving licence/document which was clearly a violation of the terms and conditions of the insurance policy.

THE District Forum allowed the complaint and directed the Petitioner/Insurance Company to pay the Respondent, Rs. 49,744 being the loss assessed by its Surveyor, Rs. 10,000 as compensation and Rs. 2,000 towards litigation costs. The relevant part of the order of the District Forum in this connection is as follows: "Even if it is assumed for the sake of argument that the driver was not holding a valid driving licence, the Hon ''ble Supreme Court of India has set the controversy raised by holding that no claim can be repudiated and the Insurance Company is bound to give the compensation to the insured and if it feels necessary then initiate recovery against the owner for violating the terms and conditions of the policy. "

AGGRIEVED by this order, Petitioner/Insurance Company filed an appeal before the State Commission which dismissed the same by observing as follows: "No employer is expected to undertake the inquiry from the Transport Authority who issued the licence and should employ a driver only after being satisfied with the genuineness of the licence. No employer will employ a driver on the basis of fake or forged licence as such a risk cannot be taken by the employer. Unless the employer is satisfied by the safe driving skill of a driver, he will not continue him in his employment. Even if later on the driving licence is found to be unauthorized or fake, the employer cannot suffer the consequences particularly in view of the renewed licence. Driving licence is issued only when a person is capable of driving the vehicle and has the reasonable driving skills. Merely because in the instant case the driving licence was renewed after 25 days of the accident does not mean that the driver was not having any driving skills or was not capable of driving the vehicle. Whenever driving licence is renewed, the driver is always subjected to afresh test. Merely connotation of word ''renewal '' means that a person whose licence is being renewed has a driving skill and driving licence is renewed with retrospective effect. Renewed licence is almost a new licence as it is issued after subjecting the person to a fresh driving test. "

Hence, the present revision petition. Counsel for both parties were present and made oral submissions. Counsel for Petitioner stated at the outset that the learned Fora below erred in concluding that even if the licence is fake, the claim should not have been repudiated as per the judgment of the Hon ''ble Supreme Court in National Insurance Co. Ltd. v. Swaran Singh & Ors., I (2004) SLT 345=109 (2004) DLT 304 (SC)=I (2004) ACC 1 (SC)=(2004) 3 SCC 297 and New India Assurance Co. v. Kamla, I (2011) CPJ 10 (SC)=I (2002) ACC 346 (SC)=III (2001) SLT 150=(2001) 4 SCC 342, etc. In fact these judgments pertained to settlement of third party claims and not to own damage claims as in the instant case. This case is squarely covered by the judgment of the Hon ''ble Supreme Court in National Insurance Co. Ltd. v. Kusum Rai & Ors., II (2006) CPJ 8 (SC)=III (2006) SLT 162=II (2006) ACC 19 (SC)=(2006) 4 SCC 250, wherein the Apex Court hadinter alia held that the owner of a vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or not. Since, in the present case the driver did not possess a valid driving licence, the grounds stated by the State Commission for dismissing the appeal of the Petitioner/Insurance Company are not maintainable. Counsel for Petitioner stated that it is clear from a copy of the driving licence which was produced before the Fora below that the same is a fake since there is a clear discrepancy in this document which in one place states that the licence issued on 11.7.2005 is valid upto 23.6.2008 and in the endorsement on the back of the same driving licence, the validity of the period of licence is mentioned from 17.12.2004 to 16.12.2007. Learned Counsel for Petitioner further contended that as per the documentary evidence on file, the said licence was issued by the Licensing Authority, Gurgaon which was valid from 7.12.2001 to 6.12.2004 and thereafter the same was renewed on 11.7.2005 to 12.6.2008. Since the accident admittedly took place on 6.6.2005, it is clear that at the time of the accident, the driver did not have a valid driving licence since there was a gap between its expiry on 6.12.2004 and subsequent renewal on 11.7.2005. Further, adverse inference has to be drawn from the fact that Respondent did not produce the original licence for verification before the Fora below.

COUNSEL for Respondent stated that the Fora below which are Courts of fact had after assessing the evidence rightly concluded that the driving licence was genuine and therefore, the contention of the Petitioner that it was a fake licence is not correct. Further, the onus to prove that the documents supplied by the Respondent were fake, was on the Petitioner who has failed to prove these facts.

WE have heard learned Counsel for both parties and have gone through the evidence on record. We agree that the State Commission erred in relying on the above cited judgments of Hon ''ble Supreme Court to conclude that Respondent could not be held responsible even if the driver of the vehicle had a fake or forged driving licence because those judgments are in respect of third party insurance claims and as pointed out by the Petitioner not in respect of own damage claims as in the instant case. However, this notwithstanding we find force in the contention of Counsel for Respondent that Petitioner has not been able to produce any proof to substantiate the contention that the copy of the driving licence issued/renewed by the Licensing Authority, Gurgaon is fake. No affidavit, for example, has been filed from any authority or official of the Licensing Authority, Gurgaon to support Petitioner ''s contention that, the driving licence is fake. As is well-established, production of a document does not amount to proving the document. Therefore, in the instant case merely by producing documents and placing them on record and providing no proof to prove the contents of the same though the onus to do so was on it, Petitioner cannot claim to have submitted credible evidence to prove its case.

ON perusal of the documents on record we note that in the copy of the driving licence produced by the Respondent it is clearly stated that it was renewed on 11.7.2005 for a period of three years. There is, however, no evidence on record to show that the driver had a valid driving licence on the date of accidenti.e. 6.6.2005. We specifically asked Counsel for Respondent if he could produce any licence in respect of this period and he fairly conceded that no such evidence was available. Although, the State Commission has not touched on/discussed this aspect, we are of the view that in view of the above facts, and without going into the issue of whether the licence was fake or not, the driver of the Respondent did not have a valid licence at the time of accident and this is clearly a violation of the terms and conditions of the insurance policy as also Section 15 of the Motor Vehicles Act. These are sufficient grounds on which the claim can justifiably be repudiated. We, therefore, set aside the order of the State Commission and allow the revision petition with no order as to costs. Revision Petition allowed.