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2010 DIGILAW 93 (JK)

National Insurance Company v. Gh. Mohd. Saroori

2010-02-26

B.L.Saraf, G.D.Sharma

body2010
Per Justice G.D. Sharma, J. 1. Order dated October 3, 2004 passed by the Divisional Forum Jammu (hereinafter to be referred to as Forum) has been taken in appeal whereunder the appellant has been directed to pay a sum of Rs. 2,98,500/- alongwith interest @ 9% p.a w.e.f two months after the receipt of the report of surveyor till realization. Costs of litigation in the sum of Rs. 3000/- have also been imposed. Brief facts of the case are that respondent being the owner of Motor Vehicle No. JK02-E-1695 had insured the same with the appellant. The Insurance Policy was effective from 27.11.2001 to 26.11.2002. During its currency, on 06.03.2002, the above said Motor Vehicle met with an accident at Thathri Kalotran road and fell into deep gorge. It was a case of total loss. At the time of the accident; the Motor vehicle was being driven by Shabir Ahmad S/O Gh. Mod. R/O Doda. The respondent had engaged him as a driver for the last 15 years. Vide letter dated 03.03.2003, the claim of the respondent was repudiated by the appellant on the basis of report dated 17.09.2002 prepared by Investigating Agency namely, "Jehlum Investigating Services Pvt. Ltd", which reads:- "Driving Licence No. 63203/K had been issued in the name of Bashir Ahmad Kasaba S/O Mohd. Ismail Kasaba R/O Koolipora Khanyar Srinagar and not in the name of Driver Shabir Ahmad S/O Gh. Mohd. R/O Doda". After the repudiation of the claim, the complainant filed the complaint which was allowed and the above stated reliefs were granted in his favour. 2. Through the medium of the appeal the order has been challenged on the ground that the driver Shabir Ahmad was not having a valid and effective driving licence at the time of the accident as the same was fake. 3. Heard the arguments. 4. Mr. C.S.Gupta, the learned counsel appearing for the appellant has argued that the complaint of the respondent was allowed by the Forum even while admitting the fact that the driving licence of the driver Shabir Ahmad was fake. That view was taken on the basis of the principle of law laid down by the Hon'ble Apex Court in the case of Skandia Insurance Co. Ltd. v. Kokilaben AIR 1987 SC 1184 ; and United India Insurance Co.Ltd. v. Lehru and others; AIR 2003 SC 1292 . That view was taken on the basis of the principle of law laid down by the Hon'ble Apex Court in the case of Skandia Insurance Co. Ltd. v. Kokilaben AIR 1987 SC 1184 ; and United India Insurance Co.Ltd. v. Lehru and others; AIR 2003 SC 1292 . That principle of law laid down by the Hon'ble High Court of J&K in OWP No.457/2001 in the case of Oriental Insurance Company v. Sardar Gurdeep Singh and Ors has also been followed. That ratio decidendi of the above stated judgments is to the effect that even in the case of a fake driving license held by the driver at the time of the accident the insurance company becomes liable to reimburse the loss. But the Hon'ble Apex Court recently has made a distinction for the liability of Insurance Company between the indemnification of third party loss and own loss of the insured. It is now the settled law that in case of a fake driving license held by the driver the insured cannot be indemnified in respect of his own loss. In support of his contention he has cited the case of New India Assurance Co. Ltd. v. Prabhu Lal ( AIR 2007 SCW 7677 ). 5. The learned counsel appearing for the respondent has contended that there is not even an iota of evidence to establish the fact that driver Shabir Ahmad S/O Gh. Mohd. R/O Doda was not holding a valid and effective driving license at the time of the accident. That respondent was not guilty of negligence or failed to exercise reasonable care while engaging driver Shabir Ahmad as a driver. An insurer can be deprived to be indemnified of the loss only in a case where on account of his negligent behavior or failure to exercise reasonable care in engaging a driver whose license is subsequently found fake. In support of the contention he has cited the case of National Insurance Co. Ltd. v. Tulna Devi and Ors. 2009 ACJ 581 as well as the case of Prem Kumari and Ors v. Prahalad Dev & Ors. AIR 2008 SC 1073 . 6. We have considered the respective contentions of the counsel appearing for the parties and perused the record. The claim of the respondent was repudiated on the basis of investigation report prepared by the Manager of the Jehlum Investigating Services Pvt. Ltd. Srinagar. AIR 2008 SC 1073 . 6. We have considered the respective contentions of the counsel appearing for the parties and perused the record. The claim of the respondent was repudiated on the basis of investigation report prepared by the Manager of the Jehlum Investigating Services Pvt. Ltd. Srinagar. We have gone through the contents of the said report and find it only of casual and perfunctory nature. The report does not disclose the name of the officer who has investigated the matter. It is also stated in the report that from the (licensing Issuing Authority) required report under No RTOK/4285 dated 13.09.2002 was obtained but that report is missing from the record of the case. The report does not reveal that respondent was also associated with the inquiry. In order to prove the fact that the driving licence was fake it was necessary on the part of the appellant to examine the author of the report as a witness as well as to produce the relevant record on the basis of which it was held that licence was fake. It can be said without any manner of doubt that an owner of the vehicle should be aware or should have notice that the license was fake and still he had permitted the driver to drive the vehicle in question only then the principle laid down by the Apex court in respect of own risk can be attracted. This has been laid down in the case of Prem Kumari and National Insurance Co. Ltd. (Supra). The law cited by the counsel of the appellant ( AIR 2007 SCW 7677 ) has no application to the facts of the present case. In the backdrop of the discussion made above, we find that the impugned order does not suffer from any illegality or infirmity and there is no merit in the appeal which is dismissed with cost of Rs. 5000/-. The appeal is consigned to records and the record of the Forum be returned at once.