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2009 DIGILAW 671 (JK)

Oriental Insurance Co. Ltd. v. Manju Gupta

2009-12-22

B.L.Saraf, G.D.Sharma

body2009
G.D. Sharma, J. 1. Through the medium of this appeal the appellant Oriental Insurance Company has challenged the order dated 24-4-2004, passed by the Learned Divisional Consumer Forum Jammu (shortly `Forum' hereinafter) whereby it had allowed the complaint of the respondent Smt Manju Gupta and directed the appellant to pay her a sum of Rs. 94927/- with interest @6% with effect from December 2004 till final payment is made. According to the appellant, the impugned order is bad in law and against the facts. The Learned Forum has not considered the fact that the accident and the consequent damage to the vehicle in question were caused by some other vehicle. Having felt aggrieved of the impugned order, the appellant has come up with this appeal. 2. The facts which are germane to the disposal of the appeal are that vehicle no. JK02P-9699 owned by the complainant Smt. Manju Gupta (Respondent hereinafter) was insured for Rs. 65,0000/- with the OIC (appellant hereinafter). The vehicle met with an accident on 10-6-2004 at Karnal (Haryana) on the Jammu Delhi National Highway. The information about the accident was lodged with OIC Branch Karnal as well as with the appellant. Since there was no third party loss so no FIR was registered. 3. The vehicle was shifted to a workshop in Ambala according to the instructions of the appellant. Before that, the appellant had deputed spot surveyor to assess the loss and the extent of the damage. Surveyor Sh. R.L. Gupta inspected the vehicle and submitted loss assessment of Rs 231674/- to the appellant at Jammu. According to the respondent; the appellant repudiated the claim vide letter Dated: 20-10-2004, on grounds that the driver of the insured vehicle namely, Mohd. Riyaz S/O Mohd. Din, employed by the respondent, was not in possession of a valid and effective driving license at the relevant time. The D/L in possession of the driver was supposedly issued by the licensing authority Una (H.P), which on verification by the surveyor, was found fake. Therefore, it was not valid when the accident took place and it constituted a breach of the insurance policy conditions for which the insurer had no liability towards the insured. 4. The case of the respondent before the Learned Forum was that the vehicle in question was handed over to Mohd Riyaz S/O Mohd. Therefore, it was not valid when the accident took place and it constituted a breach of the insurance policy conditions for which the insurer had no liability towards the insured. 4. The case of the respondent before the Learned Forum was that the vehicle in question was handed over to Mohd Riyaz S/O Mohd. Din for driving as he was in possession of a genuine and valid driving license issued by the licensing Authority Rajouri under No: 4518/MVD/R. The said license was endorsed for HTV vide endorsement No: 293 by the said licensing authority. Under these circumstances; the appellant's claim was genuine, which the appellant could not repudiate. 5. The Learned Forum examined the matter in detail and came to allow the complainant and ordered payment as indicated at the outset in this order. 6. We have heard Learned Counsel for the parties and examined the record of the learned Forum. 7. The contention of the appellant is that when they were considering the claim of the appellant, lodged consequent upon the accident of her vehicle., they came to know through their surveyor that the driver of the vehicle in question was in possession of a license allegedly issued by the licensing authority of Una H.P. under No: M/9826/94 dated 13-11-1994. On examining the record of said Authority, it transpired that his driving license was not genuine but a fake one. It was not issued by the said licensing Authority, so they had rightfully repudiated the claim of the respondent. 8. There is no dispute regarding the fact that the vehicle in question was insured with the appellant when it met with an accident, information of which was lodged with the insurer in time. Sh. Rajesh Sharma surveyor and loss assessor was appointed by the appellant to make a spot inspection. He made the assessment in June 2004 bearing reference No: /06/04/56. While-as, Sh. R.L. Gupta surveyor and loss assessor had assessed the damage, caused to the vehicle in the amount of Rs. 94927/- which was to be indemnified by the appellant subject to the terms and conditions of the insurance policy. 9. The respondent has in Para 13 of her complaint stressed the fact that she was aware of only one D/L being in possession of her driver Mohd. Riyaz, which had been issued by the licensing Authority Rajouri Vide No: 4518/MVD. The said Authority has confirmed its genuineness. 9. The respondent has in Para 13 of her complaint stressed the fact that she was aware of only one D/L being in possession of her driver Mohd. Riyaz, which had been issued by the licensing Authority Rajouri Vide No: 4518/MVD. The said Authority has confirmed its genuineness. 10. They are not aware of the source from where the appellant came to know about the driving licensing of the driver, issued by Una licensing Authority. 11. Following issues come up for consideration and determination:- (i) Whether the driver of the vehicle in question was having a fake D/L allegedly issued by the Una licensing Authority, when the accident took place. (ii) Whether the driver of said vehicle was in possession of a valid and effective D/L, issued by the Rajouri licensing Authority, when the accident took place. (iii) Whether the driver of the said vehicle was in possession of two D/Ls simultaneously, which is not permissible under Sec. 6 of the Motor Vehicles Act. 12. The appellant have alleged that the driver of the vehicle namely, Mohd. Riyaz was in possession of a D/L, which was fake. The Una licensing Authority, which is said to have issued the D/L, when contacted by the surveyor, appointed by the appellants reported that no such D/L was issued by it. The respondent has denied that the driver was in possession of a fake D/L. She was not aware that the driver i.e. Mohd. Riyaz was in possession of a fake D/L. 13. There is no proof brought on record by the appellant that the driver Mohd. Riyaz was in possession of a fake D/L. Just saying of investigator Ragem Soni that Licensing Authority Una (H.P) had not issued the D/L will not suffice. In any case, there is no whisper in the appellant's case that the owner of the vehicle i.e. respondent was aware of the fact that Mohd. Riyaz (the driver) employed by her was not competent to drive the vehicle. There is no document of the Una licensing Authority to support the contention of the surveyor. 14. Mr. Vishnu Gupta, advocate appearing for the appellant, has made reference to the respondent's depositions in Para 4 of the affidavit to say that she has admitted that her driver was in possession of a fake license. The respondent has stated in middle of the Para- 4... 14. Mr. Vishnu Gupta, advocate appearing for the appellant, has made reference to the respondent's depositions in Para 4 of the affidavit to say that she has admitted that her driver was in possession of a fake license. The respondent has stated in middle of the Para- 4... "The driver in order to save his genuine may have given some other license/document..." 15. We have considered the submissions of Mr. Gupta and find from the record that his reference to the contents of affidavit are only of hypothetical in nature and they do not constitute an admission which proprio vigore is always candid, clear and categorical in nature and beyond any shadow of doubt. Adverting to the facts of the present case, we find that the words used are "'may have given some other license/documents." She is not sure about it. A judicial authority does not decide a matter on hypothetical statements. She, however, is firm in stating that while handing over vehicle to the driver she had checked his D/L No: 4518/MVD/R issued by the Rajouri Licensing Authority. After considering the respective contentions of the counsel for the parties and perusing the record; we are of the view that the appellant has failed to prove their allegation to the fact that insured vehicle in question was being plied by the driver while holding a fake driving license because there is no evidence on the record to prove its fakeness. The only emphasis laid was that appellant herself had submitted about the fake nature of license which was produced before Una licensing authority but as has been found by the above discussion that on the record there was no such admission. On the contrary, there is evidence on the record that driver of the insured vehicle had a valid and effective license in his possession issued by the licensing Authority Rajouri. In this view of the matter, we find the appeal is meritless which is dismissed with cost of Rs. 4000/-. The record of the Forum be returned at once and appeal is consigned to records.