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2004 DIGILAW 69 (CHH)

UNITED INDIA INSURANCE v. SHYAM LAL AGRAWAL

2004-04-05

R.S.AWASTHI, V.K.AGRAWAL, VEENA MISRA

body2004
ORDER V.K. Agrawal, President:- 1. This appeal, u/s 15 of the Consumer Protection Act, 1986, is directed against the order dated 11-9-01 in complaint No. 143/01 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called the District Forum' for short) directing the appellant/insurer to pay to the complainant/ respondent compensation of Rs. 60,501/- with interest @ 9% per annum as well as cost of the complaint on account of damage to the complainant's vehicle in accident. 2. The undisputed relevant facts stated in brief are : that the complainant/respondent is the owner of a vehicle Tata 407 bearing Regd. No. MP23DA-0508, which was insured by the complainant owner with the appellant/insurer for the period from 16-9-99 to 15-6-2000. The said vehicle met with an accident and got damaged on 6-1-2000 i.e. during the subsistence of the insurance policy. The intimation of the accident was given to the appellant/insurer as well as to the police. Appellant/insurer also appointed surveyor-Rajkumar, who conducted survey and submitted his report dated 20-2-2000. The surveyor assessed the loss to the extent of Rs.60,500/-. It is also not in dispute that the claim of the complainant/respondent was repudiated by the Appellant/Insurer by its letter dated. 22-6-2000 on the ground that the driver Shri Budh Ram was not holding a valid and effective driving licence. 3. The complainant in his complaint averred that the licence was renewed from time to time by R.T.O. Raipur for the period from 30-9-87 to 18-2-2003. It was therefore, averred that the repudiation by the appellant was not justified. According to the averments in the complaint the complainant had to incur an expenditure of Rs. 1,42,513/- towards repairs of the' truck. He accordingly claimed the said amount with interest as compensation. 4. The complaint was resisted by the appellant/insurer. According to the written version of the appellant/insurer on enquiry about the licence held by the driver Budh Ram, it was discovered that though the said licence was renewed by RTO, Raipur, but the original licence alleged to have been issued by RTO, Kanpur, was in fact never issued by that authority. It was therefore, averred that renewal of the licence by the RTO, Raipur would not validate the fake licence. The insurer therefore, averred that the repudiation of the claim of the owner/respondent was justified. 5. It was therefore, averred that renewal of the licence by the RTO, Raipur would not validate the fake licence. The insurer therefore, averred that the repudiation of the claim of the owner/respondent was justified. 5. Learned District Forum held that it was the burden of the appellant/ insurer to prove that the licence held by the driver Budh Ram was a fake one and that it has failed to prove the same. The claim of the complainant/ respondent was therefore, accepted and compensation as assessed by the surveyor was ordered to be paid with interest @ 9% per annum by the appellant/insurer to the complainant/respondent. 6. Learned counsel for appellant/insurer submitted that the vehicle was admittedly being driven by driver Budh Ram. It was submitted that the original licence held by Budh Ram was allegedly issued by RTO, Kanpur and was subsequently renewed by RTO, Raipur. However, on verification of the said licence it was found that RTO, Kanpur never issued the said licence as was reported by investigator Narendra Mohan Guha in his report dated 24-4-2000, copy of which was placed on the record of Distriet Forum. It was therefore, submitted by learned counsel for appellant/insurer that appellant/ insurer justifiably repudiated the claim of the complainant/respondent and learned District Forum erred in directing payment of compensation by the appellant/insurer to the complainant. Learned counsel for appellant/insurer relied upon the pronouncement of Supreme Court in the case New India Assurance Co. Ltd., Shimla Vs. Kamala] and that of National Commission in Raj Kumar Vs. New India Assurance Co. Ltd. in which it was laid down that if the original licence is fake, subsequent renewal by a competent authority would not make it valid. 7. Learned counsel for the complainant has however, supported the impugned order. It was submitted that since the appellant/insurer was challenging the genuineness of the licence and has raised a plea in defence that it was not liable to pay the amount due to breach of terms of policy, it was the burden of the insurer to prove the breach as alleged above. It has been submitted that the insurer has failed to do so by producing adequate and satisfactory material in that regard. It was further submitted that as the licence was renewed from time to time by RTO, Raipur, the complainant owner believed it to be a proper and effective driving licence. It has been submitted that the insurer has failed to do so by producing adequate and satisfactory material in that regard. It was further submitted that as the licence was renewed from time to time by RTO, Raipur, the complainant owner believed it to be a proper and effective driving licence. It was submitted that there was no breach of terms of policy by the complainant/respondent. It was therefore, submitted that the District Forum was justified in allowing the complaint of the complainant/respondent and in directing payment of compensation by the appellant/insurer to the complainant/respondent. 8. There is no dispute that vehicle was insured by the complainant/ respondent with the appellant/insurer for the period from 16-6-99 to 15-6-2000. It is also not in dispute that while it was being driven by the driver Budh Ram on 6-1-2000, it met with an accident while going from Raipur to Deobhog. Intimation of the accident was given by the complainant to the appellant/insurer. The repudiation of the claim of the complainant by the appellant/insurer was only on the basis that the licence of the driver was not proper. 9. The question that arises for consideration is as to whether the repudiation of the claim as above by appellant/insurer was justified? 10. Copy of the driving licence held by driver Budh Ram has been placed on the record of the District Forum. It would appear there from that in the said licence the date of issue of the licence is shown to be 3-9-87. It was originally granted for the period from 30-9-87 to 29-2-90, and was subsequently extended for the period upto 29-2-93 to 29-2-96 thereafter from 28-2-97 to 28-2-2000 and again renewed by the licencing authority, Raipur til1 28-2-2003. The perusal of copy of the licence does not disclose that it was originally issued by RTO, Kanpur as alleged by appellant/insurer. However, the report of RTO. Raipur dated 15-3-2000 mentioned old No. of the licence as 89540/Kanpur/87. It was also mentioned that it has to be verified. There is yet another document placed on record of District Forum which is the report of investigator Narendra Mohan Dua, in which it is stated that the said licence was purportedly issued by RTO, Kanpur. It was further reported by investigator Dua that on verification it was found that the licence was not issued by licensing authority, Kanpur. There is yet another document placed on record of District Forum which is the report of investigator Narendra Mohan Dua, in which it is stated that the said licence was purportedly issued by RTO, Kanpur. It was further reported by investigator Dua that on verification it was found that the licence was not issued by licensing authority, Kanpur. Copy of a document purported to be issued by licensing authority, Kanpur is enclosed with the said report, which shows that the licence No. 69540/KP/87 was not issued by licensing authority, Kanpur. However, it may be mentioned that photo copy of the licence produced by the applicant placed on record does not mention that the original licence No. 69540/KP/87 was issued by RTO, Kanpur. However, there is yet another photo copy of the licence produced on behalf of appellant/ insurer which mentions that old No. of the licence issued by RTO, Kanpur is 69540. It is not clear as to from where the said copy was obtained by the insurer/appellant. There is obvious discrepancy in the photo copy of the licence produced by the complainant and as produced by the appellant/insurer. However, there is no explanation as to why and how the two photo copies differ from each other. It may be also be noticed that the original licence has not been produced by either of the parties. 11. In a recent judgment by Supreme Court in National Insurance Co. Vs. Swaran Singh & Ors. after detailed consideration of the case law it was held that the defence regarding the valid and effective licence held by the driver can be raised by the insurer but it is the burden of the insurer to prove the defence as above. It was further held therein that the insurer is also under obligation to prove that the insured defaulted in taking adequate care and caution to verify the genuiness or otherwise of the licence held by the driver. It is clear from the ratio of the said judgment that breach of policy conditions such as disqualification of driver on the ground that driving licence of the driver was not valid and the original licence was a fake one have to be proved by the insurer. It is clear from the ratio of the said judgment that breach of policy conditions such as disqualification of driver on the ground that driving licence of the driver was not valid and the original licence was a fake one have to be proved by the insurer. It was further laid down therein that the question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver fulfils the requirement of law or not, will have to be determined in each case, on the basis of its facts and circumstances. It was observed that to avoid the liability towards the insured, the insurer has to prove that insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of vehicle by duly licensed driver or who was not disqualified to drive at the relevant time. 12. It is therefore, clear that it was for the appellant to prove the breach of policy conditions and that there was negligence on the part of the complainant owner in permitting the driver Budh Ram to drive the vehicle. As noticed earlier there was repeated renewal of licence of the driver Budh Ram by a competent authority R.T.O., right from the year 1987. Photo copy of the licence produced by the complainant does not disclose that the original licence was issued by RTO, Kanpur. The photo copy of the licence produced by the insurer however, mentions the licence number issued by the authority of Kanpur RTO. However, it may be noticed that photo copy produced by insurer is not clearly legible and it is also not known as to from where the said photo copy was prepared and obtained by the insurer. The report of the investigator is not supported by his affidavit nor is there any authonsed certified copy from RTO Kanpur in support of the said report of the investigator stating that the driving licence was not issued by RTO, Kanpur. 13. Appellant insurer therefore, has not produced necessary material to show that the driving licence of the driver was fake or that the complainant owner was negligent in not taking care to verify the validity of the licence. Thus the insurer has failed to discharge the burden of proving the above facts. 13. Appellant insurer therefore, has not produced necessary material to show that the driving licence of the driver was fake or that the complainant owner was negligent in not taking care to verify the validity of the licence. Thus the insurer has failed to discharge the burden of proving the above facts. The appellant insurer was therefore not justified in repudiating the claim of the complainant. 14. Appellant insurer therefore, cannot succeed in this appeal. The case of Kamial (Supra) and Rajkumar (Supra) would not go to help the stand of the appellant insurer in view of the pronouncement of the Apex Court in Swaran Singh3 (Supra) and in view of the factual situation as noticed earlier in the instant case. 15. Therefore, learned District Forum was justified in awarding the compensation to the complainant/respondent. The said award deserves to be affirmed. This appeal has no substance and it is accordingly dismissed. However, the appellant shall bear its own cost of this appeal and shall pay that of the complainant/respondent which is quantified at Rs. 500/- (Rupees Five hundred) only. Appeal Dismissed.