Orissa

Jajapur

CC/123/2022

Himadri Tanaya Samal - Complainant(s)

Versus

Branch Manager United India Insurance Co.Ltd - Opp.Party(s)

Sj.Saroj Kumar Singh.

18 Aug 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION :  JAJPUR.

Presents:-           1.    Smt. Susmita Mishra              President,

                                                                2.  Sri Bibekananda Das            Member

Dated the 18th  day of August, 2023.

C.C. Case No. 123 / 2022.

Himadri Tanaya Samal, W/O Sanjib Sekhar Samal,

 Vill-Rudrapur, Po-Balamukuli,

P.S-Binjharpur, Dist.-Jajpur.                                                                                    .  .  .  .  Complainant.

                                           Versus.

1. Branch Manager, United India Insurance Co. Ltd., Branch Office Jajpur Road,

Samal Building, Bank Street, Main Road, Jajpur Road, Jajpur.

2. Branch Manager, Cholamandalam Investment and Finance, Branch Office,

At-Plot No.318, N.C. College Road, Near PNB, Jajpur.

Near Mansapola,P.O/P.S/Dist-jajpur                                              .……….Opp. Parties.

 

                                Counsels appeared for the parties.                                         

For the Complainant :-          :-   Mr  S.K. Singh , Advocate.

For the O.P. No.1                     :-   Mr. M. Ku. Dash, Advocate.

For the O.P.no.4                       :-   None. 

 

Date of filing Complaint        :-              26.09.2022,

Date of Argument                   :-              21.07.2023,

Date of Order                          :-              18.08.2023.

                                                                JUDGEMENT

MR.  BIBEKANANDA  DAS, MEMBER  :-

                The C.C. Case has been filed U/S 35 of C.P.Act, 2019  and taken up today for order. Heard the learned counsels for both the parties. Perused the documents available on record and also gone the written version filed by the O.Ps   and decisions cited by both the parties.

                The complainant has filed this C.C. case by seeking relief of Rs.26,00,000/- including cost and compensation. The O.P.no.1 filed their written version objecting the prayer of the complainant on the ground that the Insurance policy being a contract which entirely guided as per the terms and conditions of Insurance Policy and driving license of driver of the said vehicle was not possessing the valid driving license at the relevant time of accident of the said vehicle and the claim of the complainant has been rightly repudiated/ closed by the O.P.no.1 and the complaint petition being devoid of merit is liable to be dismissed.

                After careful scrutiny of the entire case record  and from the aforesaid observation  it is our considered view that the O.P.no.1 has committed deficiency in service and it is a gross negligence on part of O.P.no.1 by repudiating the claim of the complainant and for which she sustained heavy financial loss during this period.

In the present context, the O.P.no.1 stated in their written version that, in absence of a valid and effective driving license with the driver, there was fundamental breach of the terms and conditions of the Insurance policy in question and the claim made by the complainant was not payable. Where as it is argued and clearly stated in the complaint petition that at the time of employing the driver, the documents like driving license etc are generally checked and verified and no one usually verifies the genuiness of the same. The facts of the present case that, the question of law that arises for consideration is what is the extent of care/ diligence expected of the employer/ insured while employing a driver? In case of United India Insurance Co.Ltd. Vrs.Lehru & others, a two judge bench has taken the view          

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that the Insurance company can not be permitted to avoid its liability on the ground that the person driving the vehicle at the time of accident was not duly licensed.

It was further held that the willful breach of the conditions of the policy should be established. We refer paragraph from the judgement in Pepsu case,SCC-PP-223-24-page-10,wherein it was held that:

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In a claim for compensation, it is certainly open to the insurer to    take a defence that the driver of the vehicle involved in the accidence was not duly licensed. “

Once  such a defence is taken, onus is on the insurer. But even after it is proved that the license possessed by the driver was a fake one whether there is liability on the insurer is the moot  Question is to be decided. As far as the owner of the vehicle is concerned ,when he/she hires a driver he has to check whether the driver has a valid driving license. Thereafter he has to satisfy himself as to the competence of the driver. In the present C.C.Case the complainant has clearly mentioned regarding the said fact in page-3 of the complaint petition. It can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner can not be expected to go beyond that to the extent of verifying the genuineness of the driving license with the licensing authority before hiring the service of the driver. However the matter would have been different if at the time of Insurance of the vehicle or thereafter the Insurance company requires the owner of the vehicle to have the license duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the license issued to the driver employed by him is a fake one and get the owner does not take appropriate action for verification of the matter regarding the genuineness of the license from the licensing authority. In the present C.C.Case it is clearly established that no action is taken by the O.P.no.1 for appropriate verification at the time of entering into  the policy for the purpose that the license possessed by the driver of the insured is a fake one and to substantiate the facts no evidence and documents have been adduced by the O.P.no.1 in support of his case. But subsequently at the time of hearing of this case the O.P.no.1 has submitted one documents from the office of the R.T.O, Hazaribag that JH02/2018/0001237 license has not been issued in the name of driver Navneet kumar Singh which is not acceptable to this  Commission. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty  of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time.

                From the aforesaid facts and in view of the decision of Hon’ble Supreme Court in case of Nirmala Kothari Vrs.United India Insurance Co. Ltd) it is our considered view that,

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While hiring a driver the employer is expected to verify if the driver has a driving license. If the driver produces a license which on the face of it looks geguine, then the employer is not expected to further investigate into the authenticity  of the license unless there is cause to believe.”

 otherwise and in the present C.C.Case the complainant has already complied the same and she finds the driver to be competent to drive the vehicle and has satisfied herself. It would be unreasonable to place such a high onus on the insured to make enquiries’ with RTOs all over the country to ascertain the veracity of the driving license. However the decision of the Hon’ble Supreme Court is squarely applicable to the present C.C.Case in hand and the Insurance Company  would be liable under the policy. So, the contention made in the written version filed by the O.P.no.1 is not acceptable to this Commission and moreover in absence of any survey report we are inclined to accept the estimate submitted by the complainant towards repairing cost of the vehicle. We  award  cost and compensation of Rs.50,000/- ( fifty thousand)  in favour of complainant but in our considered view, it is the duty of the O.P.no.1  the ( Insurance Company)to indemnify the insured for the loss and damage caused  to her.

O R D E R

                                We therefore directing   the O.P.No.1 to pay Rs.15,45,493/-  along with interest at the rate of 9%  per annum from the date of claim i.e 04.04.2022 till its realization to the complainant  and shall also pay  Rs.50,000/- (fifty thousand) towards compensation and litigation cost within a period of one month  from the date of receipt of this order, failing which the O.P.no.1  shall be liable for execution proceeding under the C.P.Act,2019. The C. C. Case No. 123 of 2022 is allowed and accordingly disposed of.

                                                Issue extract of the order to the parties  for compliance.

                                Judgment pronounced in the Open Commission on this the 18th day of  August, 2023.