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2004 DIGILAW 71 (CHH)

SUKHDEV SINGH v. ORIENTAL INSURANCE

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 26-11-99 in complaint No. 77/99 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called 'Distt. Form for short) dismissing the complaint of complainant/appellant. 2. Relevant facts no longer in dispute are : that the complainant appellant is the owner of truck bearing registration no. MIR 9214. It was insured with the respondent under policy No. 7899 of 1998 for the period from 7-1-98 to 6-1-99. The driver of the complainant Surendra Singh was driving the said vehicle on 6-5-1998, when it met with an accident near Amritsar. The complainant intimated about the accident to the respondent insurer and also submitted the claim form on 26-5-98. The respondent insurer appointed surveyor Gurmit Singh. The said surveyor in his report dated 10-11-98 opined that there was a collision between complainant's truck with another truck and the complainant's truck was badly damaged. The loss was assessed by the said surveyor to the tune of Rs. 54,475/-. 3. The complainant averred in his complaint that though the complainant continued to pursue the matter and made enquiries from the respondent insurer about settlement of his claim on account of damage of his truck, the claim has not been settled by the insurer till the filing of the complaint. According to the averment of the complainant, the complainant was entitled to the amount of Rs. 55,000/- assessed by the surveyor with interest there on. The complainant has also claimed compensation for deficiency of service on the part of the respondent insurer in not settling his claim. 4. The complaint was resisted by the respondent insurer. It was mainly averred that the driver Surendra Singh was not having a valid and effective driving licence. It was averred that as per report of the investigator Krishna S. Gupta, the original licence was allegedly issued by the licensing authority Taran Taran, Punjab. However, on enquiry by the investigator appointed by the respondent insurer it was discovered that no such licence was issued by licensing authority Taran Taran, to the said driver Surendra Singh. It was, therefore, averred that the complainant committed breach of terms of policy as the vehicle in question was permitted by him to be driven by a person who did not hold valid and effective driving licence. It was, therefore, averred that the complainant committed breach of terms of policy as the vehicle in question was permitted by him to be driven by a person who did not hold valid and effective driving licence. Accordingly the claim was repudiated by the insurer on 5-3-99. The respondent/insurer, therefore, averred that the complainant was not entitled to any compensation and the complaint deserves to be dismissed as there was no deficiency in service by the respondent. 5. The learned Distt. Forum upheld the objections raised by the respondent and held that as the vehicle was being driven by a person not holding a valid and effective driving licence, therefore, there was no deficiency in service by the respondent/insurer. The complaint was, therefore, dismissed. 6. The learned counsel for the complainant/appellant submitted that Surendra Singh was holding driving licence from 1981. The said licence bas been continuously renewed from time to time by the RTO, Raipur since 1990. It was also submitted that the same truck driven by the driver Surendra Singh was also earlier involved in another accident, in which the complainant of that case was given compensation by the respondent/insurer, without raising any objection regarding the validity of the licence. Hence, the respondent/ insurer committed dificiency in service, by not paying damages to the complainant. 7. The learned counsel for the respondent insurer, however, supported the impugned order. It was urged that the report of the investigator clearly revealed that the original licence held by the driver was fake. Hence it is established that the complainant's vehicle was being driven by a driver who was not having valid and effective driving licence. It was thus submitted that Distt. Forum justifiably held that there was breach of terms of policy by complainant/appellant and rightly dismissed the complaint. 8. The question that arises for consideration is as to whether in the facts and circumstances of the case, the repudiation of the claim of the complainant/appellant by the respondent/insurer was justified? 9. As noticed above, whether the complainant committed the breach of terms of policy in as much as he permitted the illfated vehicle to be driven by an unlicensed driver? 10. In the above context it may be mentioned that the Supreme Court in the recent decision in National Insurance Co. Ltd. Vs. 9. As noticed above, whether the complainant committed the breach of terms of policy in as much as he permitted the illfated vehicle to be driven by an unlicensed driver? 10. In the above context it may be mentioned that the Supreme Court in the recent decision in National Insurance Co. Ltd. Vs. Swarn Singh and Others I has held that the burden of proving breach of terms of the policy is on the Insurance Co. In order to avoid their liability they must establish breach of the terms of the policy on the part of the owner in preventing the vehicle being driven by the driver who was having a fake licence. It was held 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 fulfills the requirements of law or not, will have to be determined in each case on the basis of its facts and circumstances. 11. In the instant case the original driving licence has been produced on record. It appears therefrom that the said licence was renewed from time to time, on several occasions by the licensing authority, Raipur, since September 1990. There is an endorsement on the said licence to the effect 'old No. 8360 TT'. The driver of the said vehicle Surendra Singh in his affidavit submitted that the original licence was issued to him by the licensing authority of Taran Taran and that he had produced the original licence before the licensing authority at Raipur. He has also stated that the original licence issued by Taran Taran licensing authority was retained by the licensing authority at Raipur informing the driver Surendra Singh that the same would be needed for verification. It was also stated that Licencing authority, Raipur had given him driving licence on 19-11-1990. It would, therefore, appear that the driver Surendra Singh has produced the licence before the complainant which purportedly was issued by the licensing authority of Raipur on 19-11-1990. On the perusal of the said licence, no suspicion reasonably arises about its genuineness. The said licence was continuously renewed several times by the licensing authority, Raipur, from 1990 onwards. Though an endorsement is made in the said licence 'old no. 8360 TT'. However, on first glance it would not indicate that the original licence was issued by Taran Taran authority. The said licence was continuously renewed several times by the licensing authority, Raipur, from 1990 onwards. Though an endorsement is made in the said licence 'old no. 8360 TT'. However, on first glance it would not indicate that the original licence was issued by Taran Taran authority. Thus the owner-the complainant in the present case, therefore, does not appear to be guilty of any negligence in acting upon the said representation of the driver that he had a valid and effective licence, copy of which is produced in the complaint. In fact the insurer/respondent has neither pleaded nor proved any negligence on the part of the owner-the complainant. 12. It may also be noted in the above context that the respondent is alleged to have accepted the claim of the complainant/appellant on an earlier occasion, when the vehicle driven by the same driver Surendra Singh while under the employment of complainant, met with another accident on 30-3-1991 as has been stated by the said driver in his affidavit, and compensation was duly paid to the complainant by the respondent insurer [or the damage to the vehicle in the said accident which occurred earlier. The statement on affidavit of the driver Surendra Singh as above, has not been controverted by the respondent/insurer. The said circumstances further strengthens and reinforces his contention that the complainant owner believed that the licence produced before him by his driver Surendra Singh was genuine and there was no reason to doubt or suspect its credential or to doubt its genuiness. 13. It may also be noticed in the above context that the respondent has produced the letter dt. 15-9-99 of one Piyush Tiwari investigator saying that the licensing authority Taran Taran never issued the said licence, as per the letter given by the said authority. However, no affidavit of investigator Piyush Tiwari has been filed in support of his letter. Therefore, the investigator's letter by itself, cannot be acted upon. Even otherwise as noticed above, since there is no basis to hold that the complainant was negligent in permitting the vehicle to be driven by a driver who was not holding a valid and effective driving licence. Therefore, the insurer/respondent has failed to prove that there was any negligence or omission on the part of the complainant/appellant. Even otherwise as noticed above, since there is no basis to hold that the complainant was negligent in permitting the vehicle to be driven by a driver who was not holding a valid and effective driving licence. Therefore, the insurer/respondent has failed to prove that there was any negligence or omission on the part of the complainant/appellant. Accordingly the claim could not have been justifiably repudiated by the insurer/respondent on the ground that the driver did not hold a proper and effective driving licence. The complainant/appellant therefore is entitled to get compensation from the respondent/insurer. 14. It is not in dispute that the surveyor in his report has assessed loss to the extent of Rs. 54,475/-. It appears just and proper to award the said amount as damages, to the complainant/appellant. 15. Therefore, this appeal is allowed. The impugned order is set aside. The respondent insurer shall pay Rs. 54,475/- (Rupees fifty four thousand four hundred seventy five) only to the complainant/appellant with interest @ 9% per annum thereon from the date of complaint till payment thereof. In the circumstances of the case the parties shall bear their own cost of this appeal. Appeal Allowed.