Prithvi Raj vs Oriental Insurance Co. Ltd.

APPELLANT was the complainant before the State Commission, where he had filed a complaint alleging deficiency in service on the part of the respondent Insurance Company.

BRIEF facts of the case are that the complainant had a bus, which met with an accident during the period when it was covered by the Insurance Cover/Policy issued by the respondent Insurance Company. The incident was reported to the respondent, who was not settling the claim. It is in these circumstances that a complaint was filed before the State Commission, who after hearing the parties, passed the conditional order stating that since the respondent has stated that the licence of the driver is not being submitted, hence they were unable to settle the claim, the State Commission vide its order dated 1.1.1998 directed the respondent to settle the claim on production of licence of the deceased driver and in case the cause of action survives, complainant was free to approach the Consumer Forum. When later on, the claim was repudiated by the Insurance Company, a complaint was again filed before the State Commission, who after hearing both the parties dismissed the complaint, hence this appeal before us. It is the case of the appellant that the ''Bus'' met with an accident in which both the driver and conductor were died on the spot and the vehicle were completely damaged. The accident was such that no papers could be retrieved from the deceased driver, hence they produced a duplicate driving licence, yet the respondent did not entertain the claim and close the claim file as "no claim".

We heard the learned Counsel for the parties at some length and there is no disputing the fact that the driver did have a licence a copy of which has been brought on record issued by licensing authority at Hyderabad. It has been renewed from Tinsukhia. We are also not challenging the evidence brought by the respondent before the State Commission by way of record and evidence of the licensing authority of Hyderabad that no such driving licence was issued. This Commission had occasion to deal with such a case in Harbhajan Lal v. National Insurance Company, RP No. 2166 of 2003 decided on 29.9.2003, in which, relying upon the judgments of the Hon''ble Supreme Court in the case of United India Insurance Company Ltd. v. Lehru, II (2003) SLT 516=I (2003) ACC 611 (SC), and also in the case of New India Assurance Co. v. Kamla, III (2001) SLT 150=I (2002) ACC 346 (SC)=(2001) 4 SCC 342, it was held by this Commission that the wilful negligence on the part of the insured has to be proved by the insurer. In normal course, the insured accepts the driving licence produced by any driver at the time of appointment and he does not go on enquiring the validity of the licence one way or the other. No evidence was adduced by the Insurance Company to prove the factum that the driving licence was fake and it was within the knowledge of the owner. Since no such omission on the part of the insured has been alleged, much less proved, we are unable to sustain the order passed by the State Commission relying upon the judgment of the Commission (supra) in view of which the appeal is allowed and the respondent Insurance Company is directed to settle the claim on the basis of the loss assessed by the Surveyor appointed by them. This amount shall be payable from 2 months after the date of receipt of Surveyor report till the date of payment along with interest @ 9% p.a. The appellant shall also be entitled to a cost which we fix at Rs. 5,000/-. All the payments shall be paid within a period of 6 weeks from the date of passing of this order. Appeal allowed.