UNITED INDIA INSURANCE CO LTD vs MOHAMMAD AYOUB MALIK

-THROUGH the medium of this appeal order dated 29. 7. 2005 passed by the learned Divisional Consumer Protection Forum, Srinagar, (hereinafter to be referred to as the Forum) has been challenged. The Forum in Complaint No. 100/2003 filed before it on 15. 7. 2003 has accepted the complaint of the respondent and directed the appellant to pay a sum of Rs. 2,73,500 with interest at the rate of 6% per annum after three months from the date of institution of the complaint till full realisation of the claim.

BRIEF facts of the case are the respondent, who is owner of the vehicle (Tata Truck Model 2000) bearing registration No. JKO3-4411, had insured the said vehicle with the appellant for a period of one year and the insurance policy had come into operation from 7. 8. 2000 and had to expire on 6. 8. 2001. During the validity of the above insurance policy, when the truck was on its way to Jammu from Srinagar on 1. 2. 2001, it met with an accident on the National Highway at a place known as ''khooni Nallah'' and extensive damage was caused to the truck. The respondent filed a claim before the appellant for being indemnified and the appellant deputed Mr. H. S. Mehta, Surveyor for preliminary survey. The respondent had submitted all the documents to the Suveyor and thereafter at the request of the respondent a final Surveyor was deputed from Jullunder to assess the loss. The said Surveyor made an assessment of the loss to the tune of Rs. 2,75,000 and submitted his report before the appellant. The claim of respondent was refuted solely on the ground that at the time of the accident the driver, namely Abdul Rasid Thakur, who was hired by the respondent was not holding a valid driving licence but had obtained a fictitious and fake driving licence. On this main plea, the complaint was contested before the Forum but the Forum came to the view that the respondent had hired the services of the said driver in a bona fide manner and relying upon the law laid down by the Hon''ble Apex Court and the learned Hon''ble High Court of J and K, awarded the compensation as stated above. Aggrieved by the order of the Forum the appellant has challenged the award on the following grounds: (i) The respondent had hired the services of a driver namely, Mr. Abdul Rashid Thakur, who did not possess a valid and effective licence because that licence was not in existence as has been revealed by the report obtained by the appellant from the Licensing Authority, i. e. Motor Vehicles Department, Jammu. On the investigation being made by the appellant the said Licensing Authority at Jammu had replied as under: ''returned in original with the remark that driving licence No. 65837/j-92 does not exist in the driving licence records of the year in question, i. e. 1992 and no such D/l bearing N. 65837/j-92 has ever been issued as per records of this office, as the total figure of the total driving lisences issued have not gone upto 65837/j/92. Sd/-Lecensing Authority, m. V. D. Jammu. ''

(ii) that the repondent was not only guilty of negligence by engaging the said driver but had failed to exercise reasonable care in the matter of fulfilling the conditions of insurance policy because not even an ordinary inquiry about the genuineness of driving licence of the driver was held and not to talk of holding a full-fledged inquiry.

Heard the arguments.

THE learned Counsel appearing for the appellant-applicant has made an application for the condonation of the delay and according to the reply made by the opposing Counsel there is no such delay which had been caused and requires condonation. From the facts of the case also it transpires that the appeal is within time and as such with the consent of the Counsel for the parties it is taken up for final disposal The learned Counsel for the appellant has contended that as per the report of licensing Authority, Jammu, stated above in the memo of appeal, it becomes crystal clear that it was not a case of issuance of fake driving licence but it is a case of no licence at all and when this was the factual ground the respondent was required to be more cautious in order to enquire whether the licence stood even issued by the Licensing authority or not. In view of such peculiar circumstances of the case, the respondent her in was required to produce the driver in the witness box and get him examined as to how and from where he had got that driving licence. It was the bounden legal duty of the learned Forum also to make an inquiry from the said driver with regard to the type of the licence in order to administer justice on equal scales and to eradicate the mal-practice and evil of manufacturing of fake licence by the people and as such the impugned order is illegal and requires to be set aside in the appeal. That the judgments referred and discussed in the impugned order are not applicable to the facts of the present case.

IN rebuttal, Mr. Sami Yaqoob, Advocate, appearing for the repondent has contended that in the present case it is a case of fake driving licence because that existed and in the case of ''no licence'' the licence does not exist in the form of a document. The driving licence which Adbul Rashid Thokur was holding at the time of the accident was the same which he had shown to the respondent at the time of his engagement and that licence had been issued by the Licensing Authority at Jammu in the year 1992, which was later on renewed by the Licensing Authority at Srinagar on 8. 4. 1999. On the basis of showing such a licence the respondent believed in a bona fide manner that Abdul Rashid Thokur was holding a valid driving licence. It was not the boundent duty of the respondent to get the particulars of the licence verified either from the issuing authority at Jammu or from the renewing authority at Srinagar. The respondent was only required to satisfy himself ex facie about the holding of a driving licence by the driver who was going to be employed. In support of his contention the learned Counsel has cited the cases of National Insurance Co. Ltd. v. Irfan Sidiq Bhat and National Insurance Co. Ltd. v. Mohd. Aslam Khan, 2004 (II) SLJ 623, (para 21), Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. , III (1999) CPJ 5 (SC)=vii (1999) SLT 317= II (1999) ACC 463 (SC)=air 1999 SC 3181 and National Insurance Co. Ltd. v. Swaran Singh and Others, I (2004) SLT 345=109 (2004) DLT 304 (SC)=i (2004) ACC 1 (SC)=air 2004 SC 1531. We have considered the respective contentions of the learned Counsel for the parties and gone through the impugned order. The Forum, on the basis of the law laid down by by Hon''ble High Court of Jammu and Kashmir in the cases of National Insurance Co. Ltd. v. Irfan Sidiq Bhat and National Insurance Co. Ltd. v. Mohd. Aslam Khan (supra), has appreciated the claim on the factual matrix of the case in hand and arrived at the correct conclusion. There is not even an iota of evidence to show that respondent was guilty of negligence in exercising the reasonable care for engaging the aforesaid driver, namely, Abdul Rashid Thokur, to ply the vehicle in question. In ordinary course of human conduct the respondent has believed about the genuineness of the licence because it was issued by the Competent Authority and then subsequently validated by another Competent Authority as has been argued by the Counsel for the respondent. It was the duty of the appellant to prove the assertion that a false or fabricated licence was in the possession of the driver and there was gross negligence on the part of the respondent to verify this factum. In the presence of this clear legal position there is no necessity of further discussion of the principles of law laid down in the authorities cited by the Counsel for the respondent.

SINCE there is no illegality or infirmity in the impugned order so we find this appeal without any legal force which is dismissed with costs, which are quantified at Rs. 3,000 to be paid by the appellant within a month''s time, failing which interest shall become payable at the rate of 9% per annum from the date of the order till its final payment. Appeal dismissed.