Chandigarh

StateCommission

A/62/2023

RAGHUVIR KUMAR - Complainant(s)

Versus

ICICI Lombard General Insurance Co. Ltd. - Opp.Party(s)

DEVINDER KUMAR

15 Dec 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

============

Appeal No	:	A/62/2023
Date  of  Institution	:	17/04/2023
Date   of   Decision	:	15/12/2023

 

 

 

 

 

Raghuvir Kumar son of Sh. Janak Raj, Resident of House No. E-33-34, Uppal Marble Arch, Manimajra, Chandigarh. Present address:    House No. 85, Sector 6, Panchkula (Haryana).

…. Appellant

 

V E R S U S

 

ICICI Lombard General Insurance Co. Ltd., earlier known as M/s Bharti Axa General Insurance Co. Ltd., Office at Fourth Floor, The Statement, Plot No.149, Industrial Area, Phase-I, Next to Hometel Hotel, Chandigarh (U.T) – 160002.

…… Respondent

 

BEFORE:   MRS. PADMA PANDEY       PRESIDING MEMBER

          PREETINDER SINGH        MEMBER

 

 

PRESENT

:

Sh. Devinder Kumar, Advocate for the Appellant. Sh. Tejinder K. Joshi, Advocate for the Respondent.

 

PER PREETINDER SINGH, MEMBER

 

 

This appeal is directed against the order dated 09.01.2023, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. Lower Commission”), vide which, it dismissed the Consumer Complaint bearing no.CC/317/2020, holding as under:-

“4.  As a result, we are of the considered opinion that the complainant has failed to prove any deficiency in service or unfair trade practice on the part of OP and, therefore, the present consumer complaint deserves to be dismissed. 

5.   In view of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs”.

 

2.      For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. Lower Commission.

 

3.      Before the Ld. Lower Commission, it was the case of the Complainant that he was the bonafide owner of Volvo XC 60 car bearing registration No.UK-07-BJ-0091 (hereinafter referred to as “subject car”) which was insured with the Opposite Party vide insurance policy valid w.e.f 21.1.2018 to 20.1.2019. On the subject car, complainant had employed one Rashpal s/o Sh. Bishan Dass as driver after verifying his licence issued by RLA, Ambala which was valid upto 17.04.2020 and also verified aadhar card.  On 05.11.2018, when the subject car being driven by said Sh. Rashpal reached near Namaste Chowk, Karnal, due to very low visibility, the same met with an accident in which the subject car was totally damaged.  The matter was reported to the police in pursuance to which DDR No.9 dated 05.11.2018 was registered at P.S. Sector 4, Karnal. Thereafter the complainant approached the Opposite Party to get the claim of the subject car as it was insured by the Opposite Party and the insured declared value of the subject car was ₹32,40,000/-. However, to the utter shock of the complainant, the claim was rejected vide letter dated 19.01.2019 by the Opposite Party on the ground that the driving licence of the driver was found fake as the same was never issued by the RLA, Ambala. Later on, complainant had also lodged FIR No.87 dated 29.05.2020 at P.S Manimajra against the driver, Sh.Rashpal as the complainant was never aware of the fact of fake licence of the driver at the time of his appointment. The Opposite Party was requested several times to admit the claim, but, with no result. Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission.

 

4.      Upon notice, the Opposite Party resisted the consumer complaint pleading that the subject car was insured with the Opposite Party at the relevant time.  However, it was alleged that the surveyor was appointed and the loss was assessed by him.  It was further alleged that the Opposite Party had also appointed Chhatwal & Associates, Insurance Surveyor and Loss Assessor for verification of the driving licence (hereinafter referred to as “licence in question”) of the driver of the subject car and upon verification from Licensing Authority, Ambala, it was found that the same was never issued in the name of Rachpal S/o Bishan Das and the same was found in the name of Shree Ram S/o Radhey Sham in the record and it was reported that the licence in question was fake as per report of the Licensing Authority. It was further alleged that there was no deficiency in service or unfair trade practice on the part of Opposite Party.  On these lines, the cause was sought to be defended and a prayer for dismissal of the Complaint was made.

 

5.      On appraisal of the pleadings and the evidence adduced on record, Ld. Lower Commission dismissed the consumer Complaint of the Complainant/ Appellant, as noticed in the opening para of this order.     

 

6.      Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/Complainant seeking setting aside of the impugned order with a prayer to allow the Consumer Complaint.

 

7.      We have heard the Learned Counsel for the Parties at length and have also gone through the evidence and record of the case with their able assistance, with utmost care and circumspection.

 

8.      The core question that falls for consideration before us is as to whether the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

9.      After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be accepted for the reasons to be recorded hereinafter.

 

10.      It may be stated here that though there is no dispute with regard to the fact that the driving licence of the said driver was found to be fake, yet, the question still survives, as to whether, the owner of the vehicle in question i.e. the Complainant was aware about the factum of the said fake licence and whether despite the same, he made no attempt to take corrective measures, including to verify the genuineness thereof.

 

11.      It is significant to note, the Appellant/ Complainant in his consumer complaint filed before the Ld. Lower Commission, has, in a very candid manner, stated that he had employed one Rashpal s/o Sh. Bishan Dass as driver after verifying his licence issued by RLA, Ambala which was valid upto 17.04.2020 and also verified aadhar card. Thus, there is no denying the fact that the Appellant/ Complainant had satisfied himself that the driver has a valid licence and was driving the vehicle in question competently at the time of the accident.

 

12.      We are of the considered view that even if the licence was fake, the insurance company would continue to remain liable unless, it proves that the owner of the vehicle was aware or noticed that the licence was fake and still permitted the driver to drive the vehicle. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has infact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. The Respondent/Opposite Party cannot expect the Appellant/ Complainant to make enquiries with the RTOs, which are spread all over the country, whether the driving licence shown to the insurer by the driver is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of terms of the Motor Vehicle Act or the insurance policy.

 

13.      In the present case also, before repudiating the claim on the ground aforesaid, the onus was upon the Respondent/Opposite Party to prove that the insured/owner of the vehicle in question did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver, but they miserably failed to do so. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer.

 

14.      Here we are fortified by the principle of law laid down by the Hon’ble Supreme Court of India in “Nirmala Kothari Vs. United India Insurance Co. Ltd.” in Civil Appeal No.1999 of 2020 (decided on 04.03.2020), reliance whereupon has been completely misconstrued and misapplied by the District Commission. Not only this, even in “Ram Chandra Vs. Rajaram”  Civil Appeal No. 8145 Of 2018 (Arising out of SLP(C) No.6760/2017) decided on 14.08.2018, the Hon’ble Supreme Court of India has held that even if the driver is found to be holding a fake licence at the time of accident, it will be for the insurer/ insurance company to prove that the insured/owner of the vehicle in question did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver and that the mere fact that the driving licence is fake, per se, would not absolve the insurer.

 

15.      In a recent judicial pronouncement titled as “IFFCO Tokio General Insurance Co. Ltd. Versus Geeta Devi and others”, SLP (C) No. 19992 OF 2023 (decided on 30.10.2023), the Hon’ble Supreme Court held once a seemingly valid driving licence is produced by a person employed to drive a vehicle, unless such licence is demonstrably fake on the face of it, warranting any sensible employer to make inquiries as to its genuineness, or when the period of the licence has already expired, or there is some other reason to entertain a genuine doubt as to its validity, the burden is upon the insurance company to prove that there was a failure on the part of the vehicle owner in carrying out due diligence apropos such driving licence before employing that person to drive the vehicle.

 

16.      Applying the aforestated edicts to the case on hand, it would be wholly impracticable for every person employing a driver to expect the transport authority concerned to verify and confirm whether the driving licence produced by that driver is a valid and genuine one, subject to just exceptions. In fact, no such mandatory condition is provided in any car insurance policy and it is not open to the Respondent -insurance company, which also did not prescribe such a stringent condition, to cite the failure of the vehicle owner to get Rashpal’s driving licence checked with the R.T.O. as a reason to disclaim liability under the insurance policy.

 

17.      Thus, these legal propositions being so well settled, the Ld. Lower Commission while passing the impugned order has failed to take note of the same and has wrongly held that there was no deficiency in service or unfair trade practice on the part of Opposite Party.

 

18.      It is a matter of fact that the claim was reported to the Respondent/Opposite Party (Insurance Company) on 05.11.2018 and inspection was done at insured premises by B & S Insurance Surveyor and Loss Assessors. The Surveyor after assessing the loss gave the final survey report dated 03.01.2019 and as per this report this was a case of total loss as the assessment on repair basis was exceeding 75% of IDV. The Surveyor assessed the loss to the tune of ₹29,37,000/- after deducting the salvage of ₹3,01,000/- and policy excess of ₹2,000/-.

 

19.      It is settled proposition of law that the surveyor’s report is an important document and cannot be brushed aside without any cogent evidence to the contrary. We are of the opinion that in the absence of any reason to disbelieve the Surveyor’s report, the same deserves to be accepted and the amount recommended by the Surveyor ought to have been awarded. Reliance placed on “Pradeep Kumar Sharma Versus National Insurance Company”, reported in III (2008) CPJ 158 (NC).

 

20.      In this manner, it is safe to hold that the Appellant/ Complainant is entitled to the claim of ₹29,37,000/- as assessed by the Surveyor, along with interest from the Respondent/ Opposite Party towards his claim, along with compensation and costs of present proceedings.

 

21.      This Commission, therefore, is of the opinion that the impugned order passed by the Ld. Lower Commission is not based on the correct appreciation of the material on record. Resultantly, the present appeal filed by the Appellant/Complainant stands accepted. The order of the Ld. Lower Commission is set-aside and Respondent/Opposite Party is directed as under:-

 

(i)  To pay Rs.29,37,000/- as assessed by the Surveyor, to the Complainant, along with interest @6% per annum from the date of repudiation i.e. 19.01.2019, till realization.

 

    (ii) To pay ₹50,000/- as compensation for mental agony and physical harassment to the Appellant/complainant.

 

    (iii) To pay ₹30,000/- as costs of litigation.

 

22.      The above order shall be complied with by the Opposite Party, within thirty days from today, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 9% p.a. from the date of filing of the Complaint, till realization, apart from compliance of direction at Sr.No.(iii) above. 

 

23.      No other point was urged by the Counsel for the Parties.

 

24.      All the pending application(s), if any, also stands disposed off accordingly.

 

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

 

26.      The file be consigned to Record Room, after completion.

Pronounced

15^th Dec., 2023                                

Sd/-

                                  (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”