Jagannath Bag, Ld. Member:
The present appeal is directed against the Order No. 25 in CDF/Unit -1 /Case No. 409/2009, dated 31.08.12, of the Ld. District Consumer Disputes Redressal Forum, Unit- I , Kolkata, whereby the complaint was allowed on contest with cost? against OP Nos. 1 and 2 and without cost against OP No. 3.
The complaint case, in brief, was as follows:
The Complainant is the owner of a lorry vide Registration No. WB-57A-1092 which was insured by the OP insurance company being the Reliance General Insurance Company Ltd under? Commercial Vehicle Package Policy No. 1506372329104084. The policy was valid for the period from 20.09.07 to 19.09.08. The said vehicle met with an accident on 05.01.2008 near the Village, Sinduria, NH-2, P.S. Barun, Aurangabad , Bihar . On 07.01.2008? the incident was reported to the nearest P.S. of Barun. The vehicle was taken by crane to one garage at Boropara, P.O. Basbaria, P.S. Mogra, Dist- Hooghly at the cost of the Complainant. The fact of accident and damage was reported to the OP insurer and claim form with an estimate of damage of Rs. 2,50,000/- was submitted to the office of the OPs, along with other original and relevant documents. The insurance company appointed an investigator / surveyor who inspected the vehicle and did assessment of the loss. The vehicle was thereafter repaired with replacement of parts by M/s D and K Auto Body at a cost of Rs.2,50,000/- . But, allegedly, after about 10 months from the date of accident the OP insurance company? intimated vide their letter dated 23.10.2008 that the claim was not payable as the driver of the vehicle had no valid driving licence at the material point of time of the accident. OPs repudiated the claim. The Complainant having received no positive response to his lawyers notice dated 06.03.2009 to pay the insurance claim, a petition of consumer complaint was filed before the Ld. Forum below with the prayer for direction upon OPs to pay the repairing cost of Rs. 2,50,000/- along with litigation cost of Rs. 10,000/- and compensation of Rs. 5,000/- for harassment and mental agony of the Complainant.The complaint was contested by the OPs by filing of W.V. wherein it was contended, interalia, that though the vehicle of the Complainant was insured with the OPs and though a claim was filed by the Complainant along with an estimate of Rs. 2,50,000/- as repairing cost after the alleged accident , the driver of the vehicle did not have a valid and effective driving licence to drive the particular class (goods) of the insured vehicle which was a clear violation of policy condition . The claim was repudiated accordingly.
Ld. Forum below after having gone through the pleadings of the parties, evidence and documents, in particular, observed that though? the Complainant complied with all the formalities as envisaged in the Motor Vehicles Act while engaging a driver for his vehicle and though? the Complainant had taken adequate care and caution to verify the genuineness of the licence held by the driver and as the Complainant did not have any knowledge that the driver was holding any invalid / fake licence, the complaint was allowed with cost against OP Nos. 1 and 2 and without cost against OP No. 3. OP Nos. 1 and 2 were? directed to pay jointly and / or severally a sum of Rs. 2,50,000/- for? the damages sustained to the vehicle and to pay compensation of Rs.7,000/-for harassment and mental agony and Rs. 5,000/- as litigation cost within 45 days from the date of communication of the order, in default where of, interest @ 9% should? accrue over the entire? sum till full realization.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below the Appellant has come up before this Commission with the? prayer for order to set aside the impugned order on certain grounds.
We have gone through the Memorandum of Appeal, the impugned order , the petition of complaint, the repudiation letter dated 23rd October 2008, the policy and other documents including the W.Vs. filed by the OPs before the Ld. Forum below .
?BNAs? have been filed by the Appellant insurance company and? the Respondent. Copy of relevant extract of Chapter-2 of the Motor Vehicles ACT 1988 has also been filed by the Respondent.
The following case laws have been submitted by the Appellant:
1. Decision of the Honble Supreme Court? in Civil Appeal No. 396 of 2009 as reported in? (1) TAC 809 (SC)
2. Decision of the Honble Supreme Court in Oriental Insurance Company Ltd. -vs- Prithvi? Raj as reported in 2008 (1)TAC 717 (SC)
3. Decision of the Honble Supreme Court in Civil Appeal No. 6248 of 2009
4. Decision of the Honble National Consumer Disputes Redressal Commission in Revision Petition No. 144 of 2008The case laws submitted on behalf of Respondent No. 1 are
1. Decision of Honble Jammu and Kashmir High Court as reported in II (2008) CPJ 275
2. Decision of Honble Supreme Court as reported in III (2006) ACC 731 (SC)
3. Decision of Honble Himachal Pradesh State Consumer Disputed Redressal Commission , as reported in I (2007) CPJ 53
4. (2012) 1 CPR 130 (NC)
Ld. Advocate appearing for the Appellant submitted that the driving licence of the driver engaged by the complainant i.e., owner of the vehicle insured was not genuine as found on verification from the office of the concerned licensing authority .? The validity of a driving licence for transport vehicles is for 3 years only as per provision of Section 14 / 2 / (a) of the Motor Vehicles Act, but, in the case of the driving licence of the driver who was driving the vehicle at the material point of time of accident , validity of the driving licence was recorded for 12 years which shows that the driving licence was not genuine and the driver was not? holding a valid driving licence . Again ,? as regards repairing charges, no? authentic documentary evidence was produced except an estimate of Rs. 2,54,000/- and a receipt of Rs70,400/- . It was only stated that spare parts were purchased without producing any authentic document in support of such purchase . The repudiation on behalf of the OP respondent was justified . The impugned order deserves to be set aside.
Ld. Advocate appearing for the Respondent submitted that the owner of the vehicle verified the driving licence of the driver and his driving test was taken? in the? presence of OP-3 being a mechanical person before engaging him for the vehicle . The driving licence held by the driver was a computerized driving licence which stood renewed up to 11.08.2010. The accident having taken place on 05.01.2008 , the driving licence was very much valid on that date. Again, Honble Supreme Court in their decision in the case of United India Insurance Company Ltd. “vs- Loharu and Ors. held that at the time of taking a job if a driver produces a licence which on the face of it looks genuine , the owner of the vehicle is not expected to find out whether the licence has, in fact, been issued by a? competent authority or not. FIR was lodged? immediately after the accident . So the claim of the Complainant was quite lawful . Repudiation of the claim on the part of the OP insurance company was arbitrary.
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The insured vehicle appears to? have? met with an accident while the same was being driven by a person who was allegedly not holding a valid driving licence. In support of their contention in this regard? the Appellant produced initially , prior to repudiation ,? a report dated 06.08.2008, which shows that the Licensing Authority , Howrah, endorsed in the application addressed to them by Reliance General Insurance that the licence No. WB11 094873 was not recorded in their office volume and thereafter in a separate report dated 23.08.2011 , it was stated that as per available office record there was no such licence number which was issued in favour of Kedar Chowhan from their office .
As per drivers clause in the policy , the owner has the responsibility to see that the driver has a valid licence for driving a particular class of vehicle .
On the question of validity of the driving licence it appears that the? complainant / owner produced a copy of the driving licence purported to have been issued by the Licensing Authority? Howrah, for a period of 12 years. On the face of it, such driving licence is not valid in so far as , Section 14 of the Motor Vehicles Act, as pointed out by the Ld. Advocate of the Appellant, provides that currency of a driving licence to drive a transport vehicle is for a period of 3 years only. In? the present case the validity of the driving license has been noted to be for 12 years which is contrary to? the provisions of the Motor Vehicles Act and which gives rise to adverse? inference that the driving licence was not genuine. Ld. Advocate for the Complainant / Respondent submitted the case law as reported? in III (2006) ACC 731 Supreme Court of India wherein it was held that the insurance company has to prove that the insured i.e., the owner of the vehicle was guilty or negligent and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by a duly licensed driver or? who was not disqualified to drive at the relevant point of time. Ld. Advocate claimed that the Complainant / owner did not fail in taking care in the matter of fulfilling the condition of the policy as regards use of vehicle by a duly licensed driver in so far as the driver was tested about his competence to drive a goods vehicle and his driving licence at that time appeared to be genuine in every respect. It was also stated by the Ld. Advocate that the Honble Supreme Court of India, as in the case of United India Insurance Company Ltd. “vs- Loharu and Ors categorically held that at the time of taking a job if a driver produces a licence which on the? face of it looks genuine the owner of the vehicle is not expected? to find out whether the licence has in fact? been issued by a competent authority. Ld Forum below appears to have relied on the said decision of the Apex Court as reported in 111(2006) ACC 731? and on the strength of the said ruling decided that the owner took all care and caution in the matter of engaging a driver for his vehicle . But , as pointed out by the Ld. Advocate of the Appellant , Honble Supreme Court in Civil Appeal No. 6248 of 2009 in the matter of National Insurance Company Ltd, -vs- OM Prakash Jain held that in the case of the damage of the vehicle of the insured , the original licence of the driver being fake, award of compensation to the Respondent i.e. owner of the vehicle would be? erroneous.
In the present case we find that the claim preferred by the Complainant/Respondent relates to the damage of the vehicle caused by an accident and such accident happened? while a person having no valid driving licence was driving the vehicle. It is seen that the Complainants attempt to place the fake licence of the driver as a genuine one has been exposed particularly in view of the fact that the Licensing Authority, Howrah, has categorically denied issuing driving licence as said to have been possessed by the driver of the vehicle of the Complainant. Honble Supreme Court in Oriental Insurance Company Ltd. “vs- Prithvi Raj as reported in 2008 (1) TAC 717 (SC) held that? the effect of fake licence is not taken away even if such licence is renewed. Further, logic of fake licence is to be considered differently in respect of third party right? and in respect of own damage claims.? While benefit, in such cases of fake licence , can be provided to a third party , the same can not be provided to the owner of the vehicle in case of an owner damage claim. In fact, the owner of a vehicle can not contend that he has no liability to verify the fact as to whether the driver possessed a valid licence or not. Again Honble National Consumer Disputes Redressal Commission in deciding the RP No. 144 of 2008 held that the conceptual difference between third party right and own damage cases has to be kept in view . The burden rests on the insurer to prove that the licence was a fake one. In this case the insurer Appellant has proved that the driving licence of the driver who was driving the vehicle at the time of accident was a fake one. That being the position, the claim of the Complainant does not stand substantiated , in so far as the policy condition to engage a driver with valid driving licence is concerned.? We are unable to accept the plea taken by the owner in respect of the driving license.
Further, it is a fact? that the repairing cost of Rs. 2,50,000/- has not been substantiated with any convincing evidence. Ld. Forums order in respect of payment of Rs. 2,50,000/- as repairing charge is not backed by any document having evidentiary value . Though surveyor appointed by the OP/ Appellants? assessed the loss i.e., repairing cost to the tune of Rs. 70,684/- and though? the Complainant / owner produced before the Ld. Forum below a receipt of Rs. 70400/- only , Ld. Forum below directed? the OP Nos. 1 and 2 to pay jointly and severally a sum of Rs. 2,50,000/- apart from other compensation and costs. The order was passed without any consideration of the legal provisions of the Motor Vehicles Act and the material facts as discussed . The terms and conditions of the insurance policy being binding upon both the parties , the repudiation of the claim of the Complainant appears to be? in accordance with the terms and conditions of the policy.
We are of the considered view that the impugned order suffers from material irregularity and legal infirmity. The appeal, in the result, succeeds. Hence,
Ordered
that the appeal be and the same is allowed on contest without cost. The impugned order is set aside. The complaint stands dismissed.