New India Assurance Co.Ltd vs SURINDER PAL

THIS appeal is directed against the order of the District Forum, Bilaspur dated 30.9.1997, whereby the appellants (hereinafter to be referred to as the Assurance Company) were directed to pay Rs. 1,06,859/- alongwith interest @ 18% per annum from the date of the repudiation of the claim i.e. 21.5.1997 till the date of the deposit of the amount and also costs of Rs. 350/-.

THE facts which are not in dispute that the respondent (hereinafter to be referred to as the complainant) is the owner in possession of truck bearing No. HP-24-2791, which was insured with the Assurance Company w.e.f. 5.1.1996 to 4.1.1997 and which met with an accident on 23.12.1996 near Sungal in Bilaspur District admittedly during the currency of the insurance policy. A sum of Rs. 2,76,809/- is alleged to have been spent by the complainant on the repair of the aforesaid vehicle. THE insurance claim was submitted by the complainant to the Assurance Company and all codal formalities were completed by the complainant but the claim was rejected on the ground that the driver Shri Suresh Kumar was not having a valid driving licence at the time of accident. The Assurance Company have admittedly verified the factum of the accident of the vehicle and also the operation of insurance policy at the relevant time as well. However, the Assurance Company has repudiated the claim of the complainant on the basis of the report of the Investigator that the licence of driver Shri Suresh Kumar was not genuine at the time of accident but was a fake one.

We have heard the learned Counsels of both the parties.

MR. Ratish Sharma, learned Counsel for the appellant very strongly argues that the driving licence of driver Shri Suresh Kumar was not a genuine but a fake one and that in terms of the insurance policy, he was not entitled to any claim. Our attention has been drawn by the learned Counsel to a document letter of Interlink Services dated 29th April, 1997, whereby a query was made by the investigator Shri P.K. Gupta, Interlink Services to the Registration and Licensing Authority, Shimla for verification whether the driving licence No. 24/86/SML has been issued to Shri Suresh Kumar S/o Sh. Bramohi Lal on 9.9.1986. He has particularly relied on the endorsement made on the aforesaid letter by the Registration and Licensing Authority, Shimla (Urban) wherein it has been stated that driving licence No. 24/86/SML has not been issued by that office. We are not in agreement with the submissions made by the learned Counsel of the appellant. No doubt, there is an endorsement on this letter that driving licence No. 24/86/SML has not been issued by the Licensing Authority, Shimla to Shri Suresh Kumar. However, the bare perusal of this letter would show that this endorsement does not indicate the name of the person who has given this endorsement for the Licensing Authority, Shimla and the date of licence is also not given. It is also not clear whether the person who has signed this endorsement for Licensing Authority, Shimla was authorised to sign and give such an endorsement and that what is his name and designation. It is further not clear that who is the person who has inspected the record of the case and under whose instructions.

WE are afraid that such an endorsement is not genuine. No affidavit has been filed on behalf of the Registration and Licensing Authority which could have thrown light on the question. Further no affidavit had been filed by Shri P.K. Gupta, who has written letter on behalf of the investigating agency-Interlink Services demonstrating that he approached the Registration and Licensing Authority and under whose instructions the record was inspected and who has inspected the record. This document has not been proved at all either by the Registration and Licensing Authority or by Shri P.K. Gupta, who has written the letter. Mr. Ratish Sharma, learned Counsel for the appellant has relied upon the affidavit of Shri Amarjit Singh, Divisional Manager of the Assurance Company dated 25.7.1997 and according to him the affidavit of the Divisional Manager has verified the contents of the reply as true and correct to his knowledge and this should be construed as evidence. This argument has been made merely to be rejected. Such an affidavit of the Divisional Manager cannot prove the endorsement, as he has no knowledge in which circumstances the endorsement was made by the Licensing Authority. Furthermore, as already stated, the best evidence of the appellant could be of the Registration and Licensing Authority, Shimla who could have thrown light on such an issue. Moreover, the person who has attested the endorsement is not legible and it cannot be said whether such a person could attest.

IT is settled principle of law the burden lies on the Insurance Company to substantiate that the driving licence of the driver was not genuine. Mr. Ratish Sharma, learned Counsel of the appellant next submits that in the decision of the Supreme Court III (1996) CPJ 8 (SC) - United India Insurance Company Ltd. v. M. K.J. Corporation, the Supreme Court has awarded only 12% interest per annum and not 18% and accordingly 12% interest per annum should be awarded.

WE are not in agreement with the submissions of the learned Counsel as the award of interest depends on the facts and circumstances of each case. In this case, it may be noticed that the complainant has raised loan for the purpose of this truck from the Himachal Pradesh Financial Corporation. WE are informed at the Bar that they are paying 24% interest to repay the loan, which also is evident from the document of Financial Corporation dated 20.3.1997 (Page 39 of the District Forum File). Had the damage claim been settled and given by the Insurance Company in time the complainant would have cleared the loan. There is further no dispute as also mentioned in paragraph-6 of the complaint that in earlier accident dated 25.2.1994 in respect of the same vehicle at the time of accident the same driver Shri Suresh Kumar was driving the vehicle and the damage claim was sanctioned by the Insurance Company and paid to the complainant Rs. 11,213/- vide cheque No. 801416, dated 28.7.1994 and they did not find any fault with the licence of the same driver Shri Suresh Kumar.

In these facts and circumstances of the case, the award of 18% interest by the District Forum does not seem be either excessive or un- reasonable. The judgment of the Supreme Court cited by the learned Counsel for the appellant may not be applicable in the present case as neither any direction of the Government has been produced nor has it been shown that the Insurance Company has invested this insurance money in Government securities etc.

AS we have already stated, award of interest depends on the facts and circumstances of each case and the Supreme Court in many cases has awarded 18% interest per annum. In B. V. Nagaraju v. Oriental Insurance Company Ltd., the Supreme Court has approved the award of interest @ 18%, as awarded by the State Commission. In view of the foregoing discussion, there is no force in the appeal and the appeal is dismissed with no order as to costs. Appeal dismissed.