MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the OP, received by transfer from Punjab State Consumer Disputes Redressal Commission under the orders of Hon’ble National Commission against order dated 11.12.2002 passed by District Consumer Disputes Redressal Forum, Patiala (for short hereinafter to be referred as District Forum) passed in complaint case No. 183 of 1.4.1999.

2.            Briefly stated the facts of the case are that the complainant got his Tata Sumo bearing No.HR-01-E-7023 insured with OP i.e. New India Assurance Company for a sum of Rs.3,40,000/- for the period from 13.6.1998 to 12.6.1999. On 28.8.1998 the vehicle met with an accident and D.D.R bearing No.7 dated 28.8.1998 was lodged with Police Station, Bahadurgarh by the driver of the vehicle. It was submitted that intimation regarding the accident was given to the OP and surveyor was appointed by the OP to assess the loss. The complainant had spent Rs.90,000/- on the repair of the vehicle. It was further submitted that despite his repeated visits to the office of OP for the settlement of the claim, it was put off on one pretext or the other and ultimately letter dated 10.2.1999 the OP repudiated the claim of the complainant on the ground that the driver was not having a valid driving licence.   The above said act of OP amounts to deficiency in service. Hence, the complaint was filed.

3.         Reply was filed by OP and admitted the issuance of the policy, factum of accident, appointment of surveyor and report by them about the loss being to the extent of Rs.50,587/- less salvage of Rs.1,000/-. It was submitted that the insured had disclosed in claim form and also to spot surveyor Sh.I.S.Bindra that the vehicle was being driven by Sukhwinder Singh son of Baldev Singh having driving licence No.25230 valid from 17.7.1991 to 26.4.2010 issued by DTO Patiala valid for scooter/car only. The driving licence of Sukhwinder Singh was got verified from DTO Patiala through Sh.B.B.Gupta who found that the driving licence of Sukhwinder Singh was only valid for scooter and then the insured submitted a driving licence of Avtar Singh who was also got verified by the insurance company from DTO Fatehgarh Sahib and found that the driving licence of Avtar Singh renewed by that authority but the original driving licence was issued from Licencing Authority, Solan. The insurance company got verified his driving licence from Licencing Authority, Solan and the same was found to be fake and the driving licence had not issued by the Licencing Authority, Solan. It was further submitted that insurance company got investigated the case through Chowdhary Detectives who produced DDR No. 7, Police Post Bahadurgarh and found that the vehicle was being driven by Avtar Singh and not by Sukhwinder Singh. It was submitted that the insured had played a hide and seek with the insurance company and tried to played a fraud with the insurance company and thus violated the terms and conditions of the policy. All other allegations leveled by the complainant in the complaint were denied and prayed that the complaint may kindly be dismissed.

4.         The parties led their evidence in support of their contentions.

5.         The learned District Forum partly allowed the complaint and set aside the repudiation of the claim. The learned District Forum directed the OP to pay Rs.50,587/- subject to salvage of Rs.1,000/- to the complainant  with interest @ 9% p.a. as compensation from the date of repudiation of claim till its actual payment to the complainant and also Rs.500/- as costs of the complaint within a period of one month from the date of receipt of copy of the order. 

6.            Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the OP.  Sh.R.K.Bashamboo, Advocate has appeared on behalf of appellant and none has appeared on behalf of respondent.

7.         In appeal, it has been contended by the OP that the learned District Forum allowed the complaint in favour of the complainant and against this judgment, the insurance company filed an appeal and the same was allowed and the matter was remanded back to decide afresh in view of the law laid down in the case titled as “The New India Assurance Company Limited Vs. Kamla” P.L.R.2000 (1) Page 830, Supreme Court. It is submitted by the appellant that in order to prove the fact that driver was not holding valid driving licence, the insurance company moved an application for summoning of the witness. The summons were served on 17.10.2002 but the witness did not appear and as such the learned District Forum issued bailable warrants for 28.10.2002 and directed to furnish the particulars of DTO/RTO Office Clerk before 28.10.2002. On that date, the insurance company requested for date and the same was adjourned to 8.11.2002 and particulars were to be furnished within three days. Due to holidays in the office of insurance company, the same could not be furnished and it was furnished on 7.11.2002 and it was requested to issue the bailable warrants. It is further submitted that without issuing the bailable warrants the evidence of the insurance company was closed and as such proper opportunity was not given to the insurance company to prove its case. The learned District Forum has further fell in error has wrongly stated that the affidavit of Sh.B.B.Gupta, Investigator was not placed on record. It is submitted that the same was placed on record along with the application but it was not considered. The learned District Forum has wrongly held that proper opportunity was given to the insurance company for proving its case but has failed to do so. It is submitted that the report of DTO along with the letter of the investigator was already on record and should have been considered. Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.

8.         We have perused the record and heard the learned counsel for the appellant as none has appeared on behalf of respondent.

9.         It is an admitted fact that the complainant got his Tata Sumo insured with OP for a period from 13.6.1998 to 12.6.1999 and whereas this vehicle met with an accident on 28.8.1998 and DDR bearing no. 7 dated 28.8.1998 was lodged with police Station, Bahadurgarh by Avtar Singh, the driver of the vehicle. At the same time, an intimation was given to the OP and surveyor was appointed to assess the loss. The complainant spent Rs.90,000/- on the repair of the vehicle. The OP on 10.2.1999 repudiated the claim of the complainant on the ground that the driver was not holding valid driving licence at the time of accident.

10.       The perusal of the record shows that the complainant employed Avtar Singh as a driver after seeing the driving licence, which was valid upto 22.10.1999 and having been issued by Licencing Authority, Fatehgarh Sahib. It may be mentioned that on this licence there is no endorsement or mention of it being a renewed one in place of the old licence. Hence, the complainant after seeing the genuineness and validity of the licence, employed Avtar Singh as a driver. The complainant in his support has produced evidence exhibit C-14 i.e. an application filed with DTO, Patiala and thereafter a report that the licence issued to Avtar Singh was valid from 19.12.1996 to 22.10.1999. Thus in this situation, there is nothing to doubt that the complainant as any other prudent man has given employment to a person who was holding a valid driving licence. At the same time it has been fairly admitted by the complainant that the complainant had no knowledge of Avtar Singh having any previous licence and the present driving licence being the forged one. However, the OP has repudiated the claim on the ground that the original licence of Avtar Singh bearing No. 26984/90 was found to be fake as per the report of the Licencing Authority, Solan just to avoid its liability as the licence on the basis of which Avtar Singh was got employed by the complainant and the said licence was valid at the time of accident. Therefore, we are of the opinion that the repudiation of the claim is unjustified as the OP could not produce the concerned official, who has reported that the licence of Avtar Singh is not valid, despite the fact that due opportunity was granted to the OP to produce the same witness before the learned District Forum. Thus, in the absence of any statement of the concerned official, the correctiveness of the report exhibit R-6, cannot be taken into account that even the original driving licence on the basis of which the complainant had given employment to Avtar Singh as a driver is not valid. Although the affidavit of Sh.B.B.Gupta, Investigator is on the record but in our opinion while concluding, it has been inadvertently mentioned in the impugned order passed by the learned District Forum that the affidavit of Sh.B.B.Gupta, Investigator is not on record. Even after going through the contents of the affidavit of Sh.B.B.Gupta, Investigator, it has been noticed by us that it has no effect on the merit of the case. In this view of the matter, we are of the view that at the time of accident, the driver Avtar Singh had a valid driving licence and this fact has already been discussed at length in the order passed by the learned District Forum. Therefore, we have come to the conclusion that there is a deficiency in service on the part of OP by repudiating the claim of the complainant on the ground that at the time of accident, the driver of the vehicle was not holding valid driving licence. The OP cannot on any ground avoid its liability as the licence exhibit C-3 on the basis of which Avtar Singh was employed and which he had at the time of accident was valid and the repudiation of the claim by the OP is thus unjustified. In our opinion the learned District Forum while partly allowing the complaint has rightly awarded the quantum of compensation to the tune of Rs.50,587/- subject to salvage of Rs.1,000/- to the complainant with interest @ 9% p.a. as compensation from the date of repudiation of claim till actual payment and also Rs.500/- as costs of the complaint.

11.       In this view of the matter, the order passed by the learned District is just, fair and proper and no interference is called for. The appeal filed by the OP is hereby dismissed with costs of Rs.2500/- and the order passed by the learned District Forum is upheld.

12.       Copies of this order be sent to the parties, free of charge.