Oriental Insurance Co. Ltd. vs Shikhar Chand Jain

THIS appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 15.1.2003 in Complaint No. 71/02 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called the ''Distt. Forum'' for convenience) directing the appellant/insurer to pay to the complainant/respondent a sum of Rs. 1,84,751/- with interest and cost of the complaint.

THE complainant admittedly is the owner of Maruti Esteem car bearing registration No. 23 L 9988, which was comprehensively insured with the appellant/insurer for the period from 8.5.1999 to 7.5.2000. THE said vehicle while going to Panchmarhi on 5.6.1999 and being driven by the driver Anil Dubey met with an accident near police station, Lalbarra. THE vehicle got damaged in the accident. THE matter was reported at Police Station Lalbarra. Intimation of the above incident was also given by the complainant to the appellant/insurer. On the direction of the appellant/insurer, complainant/respondent arranged the vehicle to be brought to Raipur. A Surveyor was appointed by the appellant/insurer who estimated the loss to the vehicle at Rs. 1,90,000/-. THE vehicle was got repaired by the complainant at M/s. Maruti Automobiles who gave a final bill of Rs. 1,84,751/-. THE complainant claimed the above amount from the appellant/insurer who, however, repudiated the said claim, by letter dated 21.3.2000, on the ground that the driver Anil Dubey was not having effective and valid driving licence as it was not issued by the Licensing Authority, Raipur. The appellant feeling aggrieved by the repudiation of his claim above, instituted the complaint before the Distt. Forum and claimed that the amount of Rs. 1,84,751/- incurred by him towards repairs of the car be directed to be paid with interest.

The complaint was resisted by the appellant/insurer. It was mainly averred that the driver Anil Dubey was not holding valid and effective driving licence. On inquiry, it was found that the said licence was never issued by the R.T.O., Raipur and that the same was forged, hence the complainant''s claim was repudiated. It was also averred that the appellant again produced another licence. The representation of the complainant on production of second licence was considered. However, it was found that the second licence was also suspicious. Therefore, the complainant''s prayer for review of his case was not allowed by the appellant/insurer. It was averred by the appellant/insurer that the complainant was not entitled to get any compensation.

THE Distt. Forum in the impugned order held that the appellant/insurer committed deficiency in service by disallowing the complainant''s claim on the ground that the licence of the driver Anil Dubey was forged. THE Distt. Forum, therefore, directed that the appellant/insurer shall pay to the complainant compensation of Rs. 1,84,751/- which was the amount spent by the complainant/respondent in the repairs of his vehicle. Learned Counsel for the appellant/insurer assailed the findings of the Distt. Forum. It was averred that there is unimpeachable material on record, indicating that the driver Anil Dubey was not holding valid and effective driving licence. It was, therefore, submitted that the complainant was not entitled to any compensation, in view of breach of terms of policy.

THE complainant/respondent''s learned Counsel, however, supported the impugned order and submitted that earlier, along with his claim form, the complainant submitted copy of licence No. A/552/R held by driver Anil Dubey, insurer. However, as the RTO, Raipur had reported that the said licence was not issued by it, hence, the complainant''s claim was repudiated by the appellant/insurer. THEreafter, the complainant came to know that driver Anil Dubey in fact held another licence No. A/542/R, issued on 16.3.1988 by the RTO, Raipur. Hence said licence was produced by the complainant. However, the appellant/insurer without proper justification held that the said licence was also suspicious and the claim of the complainant/respondent was not accepted. It was contended by the learned Counsel for the respondent, that in view of original licence No. 542/R having been subsequently produced by the complainant, his claim should have been accepted by the appellant/insurer. By not doing so, the appellant committed deficiency in service. The main question that arises for consideration in this case is: as to whether the licences or any of them of the driver produced by the complainant/respondent, should have been relied upon and the claim should have been accepted by the appellant/insurer? In the above context, it may be noted in this case that photo copies of two different licences have been placed on record. One of the said licences bears No. A/552/R and the said licence appears to have been issued by the licensing authority on 16.11.1991. The photocopy of the other licence bearing No. A/542/R/99 (old No. A/3327/R) is purportedly issued on 16.5.1988 by the licencing authority, Raipur. The said No. A/542/R/99 shall thereafter be mentioned as ''first'' licence, while the other licence bearing No. A/552/R shall be mentioned as ''second'' licence, for the sake of convenience.

IT is not in dispute that initially the complainant/appellant had submitted second licence with his claim form. The said second licence is purportedly the duplicate of the original licence of the driver Anil Dubey. The complainant has also filed along with complaint the affidavit of the driver Anil Dubey. He has stated in his affidavit, that as his first licence bearing No. A/542/R (old No. A/3327/R), was lost by him, therefore, through the R.T.O. agent, he had obtained duplicate thereof which is the second licence. He has further stated in his affidavit that he had retained the said duplicate second licence believing it to be genuine one. He has also stated in the said affidavit that his original first licence was valid, which was issued in his favour by the competent Licensing Authority.

IT may also be noticed here that opposite party appellant/insurer has examined licence clerk of the RTO, Raipur R.K. Bhargav, whose statement was recorded by the Distt. Forum on 10.4.2002. From the said statement it would appear that the said second licence was never issued by the RTO, Raipur in favour of the driver Anil Dubey and that the licence of the said number was issued in favour of one Ashok Wadhwani. IT would thus be clear that the second licence was not issued by the RTO, Raipur in favour of driver Anil Dubey. Since the said second licence was initially produced by the complainant before the appellant/insurer in support of his claim, the same was rightly not relied upon by the appellant/insurer and the claim of the complainant was justifiably repudiated. IT appears that the complainant thereafter submitted copy of first licence to the appellant/insurer as would be clear from complainant''s letter dated 30.5.2000 marked as Annexure A-1 and Annexure O.P.-4 by the Distt. Forum. The copies of the two licences as above i.e., the first licence bearing No. A/542/R and second licence No. A/552/R have also been produced along with an application by the appellant in this appeal. However, the original of the two licences have not been produced by the respondent and it was stated in their application dated 23.1.2004, producing the photo copies as above, that the original of both the licences are not available with the driver of the complainant. It may be noticed that in the Distt. Forum a certficate issued by the Licensing Authority, Raipur regarding first licence (bearing No. A/542/R) is marked as Ex. P-1 by the Distt. Forum has been filed. In the said certficate, it was stated that the said licence was issued in favour of Anil Dubey. However, in the said certificate, the name of the person, to whom the said letter was addressed has been scratched out and the name of Anil Dubey appears to have been subsequently written. The scratching out of the original name in the said letter has not been signed by any authority or person. The authenticity of the said certficate is, therefore, doubtful. It may also be noted that though the licence clerk R.K. Bhargav was examined in the Distt. Forum, he was not summoned by the complainant, to bring the relevant record relating to first licence No. A/542/R, nor any questions were put to him regarding certificatte (Ex. P-1). Therefore, in view of omission and discrepancy as above, and in the absence of original licence, certficate Ex. P-1 cannot be relied upon to show that first licence A/542/R was issued to the driver Anil Dubey.

It is also pertinent to notice in the above context that according to the affidavit of Anil Dubey, since he lost original of his first licence (A/542/R), he got a duplicate licence which is the second licence (bearing No. A/552/R). However, if the duplicate licence of first licence (A/542/R) was issued by the Licensing Authority then the second licence would have borne the same number, as the first licence, and the alleged duplicate i.e., the second licence would not have borne another number i.e., A/552/R.

MOREOVER, it may also be noticed that photo copy of the first licence (A/542/R), which according to the affidavit of Anil Dubey was his original licence shows that it was renewed from 16.5.1988 to 15.5.1993, from 20.8.1994 to 19.8.1999, thereafter from 12.10.1999 to 12.10.2004. Therefore, the said licence must have been in possession of the driver Anil Dubey till at least 13.10.1999, when it was renewed till 12.10.2004. Further the photo copy of the duplicate second driving licence (bearing No. A/552/R) produced by the complainant allegedly held by the driver Anil Dubey indicates that it was issued on 16.11.1991 and was renewed on 4.4.1998 till 16.10.2009. Obviously, therefore, on the date of issue of the second licence (A/552/R), the first licence (A/542/R) was in possession of Anil Dubey. Hence the statement of driver Anil Dubey in his affidavit dated 16.10.2002, that as he had lost his original first licence (No. A/542/R), he obtained second licence (A/552/R) is false and cannot be believed. It would thus be clear that the explanation of the complainant offered for issuance of second licence, produced by the complainant is not worthy of acceptance. It is also clear that the complainant along with his claim submitted the second licence and when he failed in his effort in getting relief from the appellant/insurer on the basis of said second licence, he knowingly subsequently produced the first licence, in an effort to substantiate his claim. It is obvious that a person cannot hold two different licences. The complainant must have been aware of this. Yet he tried to pursue his claim on the strength of two different licences. To sum up and to reiterate, it is clear that initially second licence (A/552/R) was submitted to the appellant/insurer by the complainant/owner in support of his claim. The said licence was found to be fake as it was never issued by the Licensing Authority. Then owner/respondent produced first licence and prayed for review of his claim case, on the ground that the first licence was lost, therefore, the second licence A/552/R was obtained by his driver. However, as noticed earlier, the aforementioned ground taken for obtaining second licence was fake inasmuch as both the licences were simultaneously in possession of driver Anil Dubey. The attempt as above along with affidavit filed by the owner/complainant clearly indicates his knowledge, if not complicity that the driver did not possess effective and valid driving licence. The claim in the circumstance, appears to have been rightly repudiated by the appellant. It would further appear that the complainant has tried to deliberately pursue his claim on the strength of two different licences, the genuineness of both of which is doubtful and thus it appears to be a case of malfeasance on his part. He cannot be permitted to take advantage of such manipulation. In the circumstances, in our opinion, the repudiation of the complainant''s claim by the appellant/insurer was justified. The Distt. Forum erred in allowing the complaint.

ACCORDINGLY, this appeal is allowed. The impugned order is set aside. The complaint of the complainant/respondent stands dismissed. The respondent shall bear his own costs and shall also pay that of the appellant/insurer which is quantified at Rs. 2,000/- (Rupees two thousand) only. Appeal allowed.