ORDER

(Per: Mr. D.K. Tyagi, Member):

This is insurer’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 10.03.2014 passed by the District Forum, Chamoli in consumer complaint No. 35 of 2009.  By the order impugned, the District Forum has allowed the consumer complaint partly and directed the opposite party to pay to the complainant a sum of Rs. 2,00,000/- against insured amount, Rs. 5,000/- for mental agony and financial loss and         Rs. 5,000/- towards cost of litigation within one month from the date of order, failing which the complainant shall be entitled to get interest @ 6% per annum from 09.12.2009, i.e. the date of filing the consumer complaint, till the date of payment.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant Sh. Harendra Singh Nayal was the registered owner of the vehicle ‘Truck’ bearing registration No. UP05-0620.  The said vehicle was insured with The Oriental Insurance Co. Ltd.–opposite party for the period from 23.05.2006 to 22.05.2007 for a sum of Rs. 2,00,000/- for which the complainant had deposited Rs. 12,076/- as premium of the insurance. The number of the insurance policy was 2007/00210.  Unfortunately, the said vehicle fell down in Pinder river near Dimmer-Naakot on Nainisain-Karnprayag route on 15.04.2007 at 9:30 A.M. and got totally damaged.  At the time of accident, the said vehicle was being driven by Sudhish Thapliyal S/o Sh. Sateshwar Prasad Thapliyal, driver of the vehicle.  On the same day, an F.I.R. was lodged with the Police Station, Simli, Karnprayag, District Chamoli and the insurance company was also informed immediately. The insurance company registered the claim at Sl. No. 31/2008/0006 after spot survey and thereafter the complainant had submitted all the necessary documents to the insurance company on 15.01.2008 and 13.03.2008 respectively. The insurance company had informed the complainant vide letter dated 13.03.2008 that the driving licence No. 8374/M.Z.N./99 was not issued in the name of Sudhish Thapliyal, driver of the vehicle, and prior to this the complainant informed the insurance company that the name of the driver was Kalyan Singh.  But after accident, the complainant informed the insurance company that the name of the driver was Sudhish Thapliyal & photograph was also pasted over driving licence and the driving licence was in the name of Kalyan Singh.  Later on, the complainant came to know that real name of the driver was Sudhish Thapliyal, who had obtained driving licence in the name of Kalyan Singh.  The complainant himself enquired from the address given in the driving licence and came to know that the photograph pasted over the driving licence is of Sudhish Thapliyal, and this photograph was also available in the record of the Licensing Authority, Dehradun, which clearly indicates that the driver Sudhish Thapliyal had obtained his driving licence in the name of Kalyan Singh S/o Sh. Zabar Singh.  The complainant has pleaded that the driver, who was driving the vehicle, was having valid driving licence.  The complainant has filed the consumer complaint for a sum of Rs. 2.00 lacs as insured amount on account of damages for the vehicle bearing registration No. UP05-0620 alongwith compensation of   Rs. 50,000/- on account of mental harassment and litigation expenses.

3.       The Oriental Insurance Co. Ltd.-opposite party has filed written statement before the District Forum, Chamoli and has pleaded that the complainant has not explained whether Sudhish Thapliyal S/o                 Sh. Sateshwar Prasad Thapliyal was driving the ill-fated vehicle.  The surveyor of the opposite party has found partial damages in the vehicle in question.  The claim of the complainant was registered on the basis of report of investigator.  The opposite party informed the complainant to provide correct name of the driver as well as address & details of his driving licence of the driver.  The claim of the complainant was repudiated on account of not providing definite certificates and details of the driver.  There is no deficiency on the part of the opposite party.  In additional pleas, the opposite party has stated that the insurance company after getting information appointed an investigator and loss assessor regarding the accident and the investigator submitted his report dated 24.07.2007.  According to the investigator’s report, there was a loss of Rs. 44,389/-.  The opposite party sent letters dated 14.09.2007, 15.01.2008 and 13.03.2008 respectively to the complainant with a direction to explain about the details of the driver and it was also informed that the details of driver Sudhish Thapliyal were found incorrect, therefore, the claim of the complainant is repudiated.  The claim of the complainant was repudiated and was not settled due to not providing correct details of the driver. 

4.       The District Forum, on an appreciation of the facts and circumstances of the case, has partly allowed the consumer complaint     No. 35 of 2009 vide order dated 10.03.2014 in the above terms.  Aggrieved by the said order, the opposite party-insurance company has filed the present appeal.

5.       We have heard learned counsel for the parties and perused the material placed on record.

6.       Learned counsel for the appellant has submitted before this Commission that the District Forum has failed to appreciate the evidence on record, which clearly shows that the driver was not holding valid and effective driving licence at the time of accident, which is clearly violation of terms and conditions of the insurance policy.  Learned counsel has also argued that the District Forum has wrongly allowed the claim of the complainant inspite of that both the driving licenses of driver provided by the insured was not issued in the name of Sudhish Thapliyal, which clearly shows that he was not having driving licence to drive the vehicle on the date of loss.  The District Forum has wrongly granted the compensation as claimed amount, whereas the complainant has clearly violated the terms and conditions of the policy. The insurance company had repudiated the claim of the complainant on genuine ground. The District Forum has failed to appreciate that the appellant has given an opportunity to the insured to provide the valid driving licence of the driver, but he failed to provide the valid driving licence of the driver.

7.       Learned counsel for respondent has submitted that he had engaged the driver Sudhish Thapliyal after perusal of his driving licence having his photograph pasted over it.  Learned counsel also argued that even the driving licence was fake, he is entitled to get compensation of his damaged vehicle from the appellant-insurance company.

8.       There is no dispute with regard to the fact that the respondent is a registered owner of his vehicle bearing registration No. UP05-0620 and this vehicle of the complainant was insured with the opposite party-insurance company for the period from 23.05.2006 and 22.05.2007.  There is also no dispute that this vehicle was being driven by the driver of the complainant named Sudhish Thapliyal S/o Sh. Sateshwar Prasad Thapliyal on 15.04.2007, when this vehicle met an accident at 9:30 A.M. on Nainisain-Karnprayag motor road near Dimmer-Naakot and an F.I.R. was lodged immediately on 15.04.2007 at Police Station Simli, Karnprayag, District Chamoli.  The main dispute is with regard to the fact that whether the driving licence of the driver Sudhish Thapliyal was fake which is violation of the terms and conditions of the insurance policy and whether the complainant-respondent is entitled to get compensation on this ground or not?

9.       Learned counsel for the appellant has cited a decision of the Hon’ble National Commission in the case of Hazara Begum vs. Oriental Insurance Company Ltd.; II (2015) CPJ 237 (NC).  In this case, the Hon’ble National Commission has held that though the Insurance Company is liable to a third-party even if the vehicle, at the time it meets with an accident is being driven by a person who does not possess a valid driving licence, the position would be different, in a case where compensation is sought by the insured himself, for the damage caused to his vehicle.  Wherever, the insured himself is the claimant, the Insurance Company is not liable to reimburse him for the damage caused to the vehicle, if it is found that the driver of the vehicle did not possess a valid licence at the time the vehicle met with an accident.  Since, licence possessed by driver of vehicle owned by complainant was fake licence, Insurance Company not liable to pay compensation – repudiation justified.  He has also cited a decision of Hon’ble National Commission in the case of MRH Associates vs. National Insurance Co. Ltd. & Anr.; I (2015) CPJ 177 (NC).  In this case, the Hon’ble National Commission has held that if the driver of the vehicle is not holding a valid and effective licence for driving the vehicle in question, it shall be a serious violation of the statutory requirement under the Motor Vehicles Act as also the conditions of the insurance policy which would vitiate the contract of insurance and as such the Insurance Company would be entitled to repudiate the claim – Driving licence was found to be fake – Repudiation justified.

10.     Learned counsel for the respondent has cited a decision of Hon’ble Supreme Court in the case of Pepsu Road Transport Corporation vs. National Insurance Co.; (2013) 2 UAD (SC) 711.   In this case, the Hon’ble Apex Court has held that if the driver of the vehicle involved in the accident allegedly possessing only a fake driving licence and negligence of the driver having been proved, the insurer would be liable when the insured had, at the time of hiring the driver checked whether the driver had a valid driving licence and had himself satisfied as to the competence of the driver to drive the vehicle.  The Hon’ble Apex Court further has held that owner of the vehicle cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver.   Learned counsel has also cited a decision of Hon’ble National Commission in the case of New India Assurance Co. Ltd. vs. Sant & Brothers; 2007 (2) UC 814.  In this case, the Hon’ble National Commission has held that it was not expected of the owner of the tanker to make detailed inquiries as to whether initially the licence was actually issued by the Licensing Authority or not and in that sense, there was no breach of the clause in the contract of insurance and the Insurance Company could not escape liability only on that count.  The Hon’ble National Commission has further held that the insurer could avoid liability subject to the condition that the insurer proved that in addition to the fact that the driver did not have the valid driving licence initially and he was aware of the breach of condition.  Breach on the part of owner is not willful – Insurer liable to pay compensation.  Learned counsel for respondent has also cited a decision of the Hon’ble National Commission in the case of Oriental Insurance Co. Ltd. vs. Rishi Jaiswal and Anr.; 2007 (2) UC 1295.  In this case, the Hon’ble National Commission has held that if the licence was a fake licence, the insurance company could avoid liability only after proving that the complainant was aware about the fakeness of licence – In absence of such a proof of breach of condition of policy on the part of insured it would not be possible to avoid its liability on this score.

11.     We have considered the submissions raised by the learned counsel for the parties.  After going through the decision of the Hon’ble National Commission given in Hazara Begum vs. Oriental Insurance Co. Ltd. (supra), we are of the view that the Hon’ble National Commission has discussed Pepsu Road Transport Corporation (supra) in its decision and has held that this was a case of third party claimant and does not apply to a case where the insured himself is the complainant and seeks compensation on account of damage to his vehicle.  In case of MRH Associates vs. National Insurance Co. Ltd. & Anr. (supra), the Hon’ble National Commission has held that if the driver of the vehicle is not holding a valid and effective driving licence for driving the vehicle, it shall be serious violation of statutory requirement under Motor Vehicles Act as also the conditions of the insurance policy which would vitiate the contract of insurance and as such the Insurance Company would be entitled to repudiate the claim.  In absence of valid and effective licence by the driver at the time of driving the vehicle involved in the accident, the opposite party-Insurance Company was fully justified to repudiate the claim of the petitioner.

12.     The respondent-complainant himself stated in para No. 6 of the consumer complaint that at the time of accident the driver Sudhish Thapliyal S/o Sh. Sateshwar Prasad Thapliyal was driving the vehicle and in para No. 7 of the consumer complaint, he has admitted that he knew driver as Kalyan Singh, which was informed to the opposite party-appellant.  In para No. 13 of the consumer complaint, the complainant-respondent has admitted that the driver Sudhish Thapliyal obtained driving licence in the name of Kalyan Singh S/o Sh. Zabar Singh.  Both the driving licences produced by respondent before the appellant-Insurance Company are fake.  The driving licence No. 1089/DD/2005 was issued by Licensing Authority, M.V. Deptt. Dehradun in the name of Sh. Khajan Singh S/o          Sh. Zabar Singh and driving licence No. 8374/MZN/99 has been issued by Licensing Authority, M.V. Deptt. Muzaffarnagar in the name of Sh. Anoj Kumar S/o Sh. Satya Pal R/o Sathedi Tehsil Budhana Dist. Muzaffarnagar.  The respondent-complainant himself was aware about the fake driving licences of driver Sudhish Thapliyal, therefore, citations given by the respondent-complainant are not applicable in this case, whereas the citations advanced by the learned counsel for the appellant are fully applicable in this case.  The Insurance Company is only liable to a third party even if the vehicle, at the time it meets with an accident, is being driven by a person who does not possess a valid driving licence, the position would be different, in a case where compensation is sought by the insured himself, for damage caused to the vehicle.  Whenever, the insured is the claimant, the insurance company is not liable to reimburse him for the damage caused to the vehicle, if it is found that the driver of the vehicle does not possess a valid licence at the time the vehicle met with an accident.

13.     The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside and the consumer complaint is liable to be dismissed. Resultantly, the appeal deserves to be allowed.

14.     For the reasons aforesaid, the appeal is allowed.  The impugned judgment and order dated 10.03.2014 passed by the District Forum, Chamoli is set aside and the consumer complaint No. 35 of 2009 is dismissed.  No order as to costs.

(MRS. VEENA SHARMA)                             (D.K. TYAGI)                            (JUSTICE B.C. KANDPAL)