Judgment:
JUSTICE R.C. JAIN, PRESIDING MEMBER
Challenge in these proceedings is to the order dated 22.02.2012 passed by the M.P. State Consumer Disputes Redressal Commission, Bhopal ( in short, the State Commission) in First Appeal No. 491/2011. The appeal before the State Commission was filed by the Oriental Insurance Company ( Opposite Party in the Complaint) against the order dated 01.02.2011 passed by the District Consumer Forum, Indore passed in complaint case no. 596/2007 by which order the said District Forum had partly allowed the complaint of the complainant with the following directions.
œ1. Respondent “ Insurance Company shall pay to the complainant a sum of Rs.1,27,500 ( Rupees One Lakh Twenty Seven Thousand Five Hundred only) and shall further pay interest on this amount at the rate of 8% per annum from the date of filing of the complaint i.e. 07.06.2007 upto the date of actual payment;
2. Respondent “ Insurance Company shall also pay to the complainant a sum of Rs.3000 (Rupees Three Thousand only) towards mental agony and further sum of Rs.1000 (Rupees One thousand only) towards cost of the complaint?.
2. Aggrieved by the said order, the insurance company filed appeal before the State Commission and the State Commission has allowed the said appeal and will be deemed to have dismissed the complaint by making the following observations:
œThe facts, in short, are that Jahid Khan owned a truck bearing registration no.MP 09 KD 2157. This truck met with an accident on the night intervening 2nd and 3rd May, 2006 within the area of Police Station, Ashta, District Sehore and the second driver died on the spot. The vehicle was insured with the opposite party and the complainant had to spend Rs.1,70,000/- in getting it repaired. All these documents were produced before the Insurance Company but the Insurance Company repudiated its liability on the ground that the vehicle was being driven by a person not having a valid and effective driving licence.
In paragraph 10 the District Forum has found that the cleaner has disclosed the name of Lallu as the driver of the vehicle but he did not produce any licence of Lallu. The plea of the complainant that the vehicle was being driven by Shabbir was not believed in the light of the earlier statement of the witnesses. Though the District Forum has given a categorical finding which having not been challenged, has attained finality, that the vehicle was being driven by a person who did not hold any licence, the District Forum has erred in awarding 75% of the claim on non standard basis. Under the circumstances, this appeal is allowed and the order passed by the District Forum is set aside?.
3. Aggrieved by the said order of the State Commission, the complainant has filed the present petition purportedly under section 21 (b) of the Consumer Protection Act, 1986. We have heard Mr. Varun Chopra, Advocate, learned counsel for the petitioner and have considered his submissions.
4. Shorn off unnecessary details, the facts which we may note for deciding the present proceedings are that complainant got his truck bearing No.MP-09-KD-2157 insured with the insurance company. On the night intervening 2nd and 3rd May, 2006, the said truck while on its journey from Vidisha to Indore met with an accident and got badly damaged which the complainant got repaired by spending a sum of Rs.1,70,000/-. Claim was lodged with the insurance company but it was not settled and rather repudiated by the insurance company on the ground that complainant had lodged the complaint falsely, alleging that at the time of accident the truck was being driven by driver Shabbir son of Ismail while as per the report of the accident which was lodged by the cleaner of the truck, one Lallu was driving the truck and he died in the said accident and that he (Lallu) was not possessing a valid and effective driving licence to drive the truck. The complaint being filed was resisted on the same ground. Going by the evidence and material produced on record more particularly the First Information Report, photocopy of the dehati nalishi, copy of the final report, photocopy of the marg intimation, panchnama, site plan etc., the District Forum came to the conclusion that the insured truck was in fact being driven by the deceased Lallu and not by Shabbir at the time of accident as claimed by the complainant by observing as under:
œWe have considered the arguments advanced by the parties. It is apparent from perusal of the first information report lodged by the cleaner of the truck Kallu that in this FIR he has mentioned the name of the truck driver as Lallu. Thereafter Respondent “ Company demanded copy of the driving license of Lallu from the complainant. But he did not furnish the photocopy of the same to the respondent “ company. The contention of complainant that Shabbir was driving the truck at the time of accident, is not acceptable at all, because cleaner of the truck in question had lodged the first information report of this accident and he has categorically mentioned the name of Lallu as the driver of the truck. But driving license of the said Lallu was not produced by the complainant before the respondent “ company. It is, therefore, evident that driver of the truck was not possessing a valid driving license at the time of accident. But even if it is presumed that the driver of the truck was not possessing a valid driving license and he had therefore violated the conditions of the insurance policy, then also respondent “company has committed deficiency in service by rejecting the claim of the complainant. Because respondent “ company was required to pay to the complainant 75 % of the claim amount on non-standard basis?.
5. Despite the said findings, the District Forum going by the judgment of the Supreme Court in the case of Amalendu Sahu vs Oriental Insurance Co.Ltd. held that the insurance company was not justified in rejecting the claim altogether and was required to settle the claim on non standard basis by paying a sum equivalent to 75% of the loss suffered by the complainant. In appeal, the State Commission taking note of the aforesaid finding of the District Forum held that once it was established on record that the vehicle was being driven by a person who did not hold any driving license, the District Forum was not justified in awarding the claim even to the extent of 75% on non standard basis.
6. Ld. Counsel for the petitioner sought to assail the said finding. In this connection, he referred to the statement made by cleaner of the truck where there is a reference of Shabbir as the driver of the truck and Lallu as the person sitting behind the said driver. The plea put forth by the petitioner is that the driver Shabbir who was driving the vehicle in question somehow jumped at the time of accident and ran away. The said plea appears to be an incorrect and false because it is almost impossible to believe that the driver could jump out from the speeding vehicle, leaving the vehicle to collide with the vehicle coming from the other direction. In any case, Shabbir was not produced by the complainant in order to establish that he was driving the truck in question at the relevant time.
6. Strictly speaking, this plea is not opened to the petitioner “ complainant before this Commission in these proceedings because the finding of fact recorded by the District Forum in this regard has become final as it was not assailed by the complainant in appeal. He will be deemed to have accepted this finding. The appeal filed by the insurance company was confined only to the question if going by the said finding, the District Forum was justified in partly allowing the claim of the complaint on non standard basis. The State Commission, therefore, confined the scope of the consideration of that aspect and without disturbing the finding of District Forum has held that complainant was not entitled for any claim.
7. In support of his contention that the defence of the driver not holding the driving license as put forth by the insurance company was not available to it, learned counsel for the petitioner has heavily relied upon a decision of the Supreme Court in the case of Jitender Kumar Vs. Oriental Insurance Co. Ltd. and Ors. AIR 2003 SC 4161, wherein the Supreme Court has held as under:
œThe judgment of Supreme Court in 2001 AIR SCW 1340; AIR 2001 SC 1419 does not go to the extent of laying down a law which empowers the Insurance Company to repudiate any and every claim of the insured merely because he had engaged in driver who did not have a valid licence. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner contributed i.e. damages incurred due to reasons other than the act of the driver.
In the instant case, the insured vehicle was damaged by fire. The fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act or omission of the driver. Insurance Company could not have repudiated the claim of the insured solely on the ground that the driver did not have a valid licence at the time of the incident in question?.
8. There is no quarrel with the above legal proposition but the said legal proposition was laid by the Supreme Court in an entirely different and distinguishable set of facts and circumstances of the case before it inasmuch as damage to the car had occurred due to mechanical failure and not due to any fault or act or omission of the driver. In our view, the said decision has no application to the facts and circumstances of the case in hand. To succeed on an insurance claim in respect of loss / damage of an insured motor vehicle it is obligatory on the part of the insured to establish on record that it had not committed any breach of one or more terms and conditions of the policy or any other law enforced at the relevant time. In the case in hand the complainant could not establish that Lallu who was driving the truck in question at the relevant time and who died in the accident was infact holding any driving license to drive such vehicle. This was a clear violation of the provisions of the Motor Vehicle Act, 1988, and in turn breach of the terms and conditions of the insurance policy. Such a breach could not have been condoned / waived off by the insurance company and, therefore, there was no question of the insurance company settling the claim of the complainant even on non standard basis. In our view, District Forum was not justified in partly allowing the claim even on non standard basis in this case and the State Commission did well in allowing appeal and dismissing the complaint. We therefore, see no illegality, material irregularity much less any jurisdictional error which warrants interference of this Commission. Revision petition is accordingly dismissed.