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2017 DIGILAW 282 (HP)

Kailash Chand v. National Insurance Company Ltd.

2017-03-31

MEENA VERMA, P.S.RANA, VIJAY PAL KHACHI

body2017
ORDER P.S. Rana (R) President. —Present appeal is filed under section 15 of Consumer Protection Act 1986 against order passed by Learned District Forum Chamba in consumer complaint No.23/2015 title Kailash Chand v. National Insurance Company Ltd. decided on 11.08.2016. Brief facts of Case: 2. Kailash Chand complainant filed complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner in possession of vehicle No.HP-73-1518 which was insured with opposite party in consideration amount of eleven lac. It is further pleaded that on 01.11.2014 vehicle met with accident at Luwananda Ghadoh and complainant sustained total loss of vehicle. It is pleaded that all the relevant documents were submitted to opposite party. It is further pleaded that opposite party repudiated the claim of complainant in an illegal manner. Complainant sought relief of payment of Rs.11.00 lac along with interest at the rate of 15% per annum from the date of accident till realization. Complainant also sought additional relief of Rs.1000/- (One thousand) per day from the date of accident till realization. Complainant also sought additional relief of Rs.50000/- (Fifty thousand) as compensation for mental harassment and agony. Complainant also sought additional relief of Rs.5000/- (Five thousand) as litigation expenses. 3. Per contra version filed on behalf of opposite party pleaded therein that complaint is not maintainable. It is pleaded that claim of complainant was repudiated by insurance company. It is pleaded that immediately after receipt of information the opposite party deputed Shri Rakesh Gupta Surveyor for spot survey and then also deputed Shri Sanjeev Mahajan Surveyor and Loss Assessor from Pathankot for final survey. It is pleaded that driving licence was also physically verified. It is pleaded that Shri Jadav Chandra Boruah verified the genuineness of driving licence. It is pleaded that after verification it was found that licence was not issued by the Licencing Authority. It is pleaded that complainant submitted fake driving licence of driver. Prayer for dismissal of complaint sought. 4. Learned District Forum held that licence of driver was fake. Learned District Forum dismissed the complaint filed by complainant. Feeling aggrieved against order passed by Learned District Forum Chamba complainant filed present appeal before State Commission. 5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 6. Following points arises for determination in present appeal. 1. Learned District Forum dismissed the complaint filed by complainant. Feeling aggrieved against order passed by Learned District Forum Chamba complainant filed present appeal before State Commission. 5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 6. Following points arises for determination in present appeal. 1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal. 2. Final order. Findings upon point No.1 with reasons: 7. Kailash Chand complainant filed his affidavit in evidence Ext.CW1. There is recital in affidavit that deponent is owner in possession of vehicle No.HP-73-1518 which was insured with opposite party in consideration amount of eleven lac. There is further recital in affidavit that vehicle met with accident at Luwananda Ghadoh and vehicle was totally damaged. There is further recital in affidavit that matter was reported to police agency who visited the spot. There is further recital that opposite party did not settle the claim of complainant. 8. Opposite party filed affidavit of Tarsem Lal Sr. Divisional Manager Ex.OPW-1. There is recital in affidavit that immediately after receipt of information opposite party deputed Shri Rakesh Gupta Surveyor for spot survey and thereafter deputed Sanjeev Mahajan Surveyor and Loss Assessor Pathankot for final survey. There is further recital in affidavit that complainant submitted driving licence of Neelak. There is further recital in affidavit that driving licence of Neelak was sent for verification. There is further recital in affidavit that Shri Jadav Chandra Boruah informed the opposite party vide letter dated 28.06.2015 that driving licence submitted by complainant was fake. There is further recital in the affidavit that claim of complainant was repudiated. There is further recital in affidavit that opposite party did not commit deficiency in service. 9. Opposite party also filed affidavit of Shri Jadav Chandra Boruah Ex.OPW-2. There is recital in affidavit that deponent is working as independent Insurance Investigator stationed at Jorhat. There is further recital in affidavit that deponent personally visited the office of RTO Mokokchung Nagaland on 27.04.2015 in order to verify the authenticity of driving licence submitted by complainant. There is further recital in affidavit that driving licence was not issued in the name of driver. There is further recital in affidavit that deponent personally visited the office of RTO Mokokchung Nagaland on 27.04.2015 in order to verify the authenticity of driving licence submitted by complainant. There is further recital in affidavit that driving licence was not issued in the name of driver. There is further recital in affidavit that deponent again applied under R.T.I and it was informed in writing vide letter No.RTO-MKG/RTI/G-30/08/5634 dated 06.06.2015 that licence No.2124/MKG/Prof/10 was not issued by R.T.O Mokokchung Nagaland. There is further recital in affidavit that licence submitted by complainant is fake licence. 10. We have also perused terms and conditions of insurance cover note Annexure-C4 placed on record. There is positive condition No.5 in insurance cover note that vehicle should be driven by a person holding valid and effective driving licence at the time of accident. It is proved on record that vehicle was insured w.e.f. 21.04.2014 to 20.04.2015. It is proved on record that premium was also paid by complainant to opposite party. Complainant has submitted licence of driver namely Neelak Ex.C6 placed on record. We have carefully perused the licence Annexure-C6 submitted by complainant. As per licence Annexure-C6 placed on record the name of driver has been shown as Neelak and Licencing Authority has been shown as District Transport Officer Mokokchung Nagaland. 11. Shri Jadav Chandra Boruah independent Investigator stationed at Jorhat has filed affidavit Ex.OPW-2 in evidence and there is recital in affidavit that Shri Jadav Chandra Boruah personally visited office of Licencing Authority RTO Mokokchung Nagaland on 27.04.2015 in order to verify the driving licence and found that Driving Licence was not issued by Licencing Authority RTO Mokokchung Nagaland. Complainant did not file counter affidavit of driver Neelak to rebut affidavit filed by Shri Jadav Chandra Boruah. 12. It is held that insured has committed fundamental breach of condition of insurance cover note Annexure-C4. It is held that in the absence of evidence pertaining to issuance of valid driving licence by competent authority insurance company is not liable to indemnify the complainant. See 2008(1) CPC 421 Apex Court title Oriental Insurance Company Ltd. v. Prithvi Raj. Also see 1999(2) CPC 116 NC Sachin Balachandra Shah v. The Oriental Insurance Company Limited. It is held that in the absence of evidence pertaining to issuance of valid driving licence by competent authority insurance company is not liable to indemnify the complainant. See 2008(1) CPC 421 Apex Court title Oriental Insurance Company Ltd. v. Prithvi Raj. Also see 1999(2) CPC 116 NC Sachin Balachandra Shah v. The Oriental Insurance Company Limited. In view of the fact that driver at the time of accident was not holding valid and effecting driving licence issued from competent authority of law and in view of fact that there is fundamental breach of condition of insurance cover note it is held that it is not expedient in the ends of justice to interfere in the order of learned District Forum Chamba. Point No.1 is answered in negative. Point No.2: Final Order 13. In view of findings upon point No.1 above appeal is dismissed. Insurance cover note Annexure-C4 driving licence of Neelak Annexure-C6 and affidavit filed by Jadav Chandra Boruah Ext. OPW-2 will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum along with certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.