CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.35/2009
MR. NARESH KUMAR
S/O SH. PREET SINGH
R/O VPO GANGANA, DISTT. SONEPAT,
PRESENTLY AT:
B-3G, VIJETA VIHAR, SECTOR-13,
ROHINI, DELHI-110085
…………. COMPLAINANT
Vs.
M/S IFFCO-TOKIO GENERAL INSURANCE CO. LTD.
IFFCO HOUSE 3RD FLOOR
34 NEHRU PLACE, NEW DELHI
…………..RESPONDENT
Date of Order:15.07.2016
O R D E R
A.S. Yadav – President
The complainant is registered owner of Tata Dumper and the same was duly insured with OP for the period 25.07.2006 to 24.07.2007. On 21.12.2006 at about 5.00 AM, the vehicle of the complainant met with an accident at Rasatwala Mor, Bahadurgarh-Jhajjar Road, Distt. Jhajjar, Haryana.
It is further stated that the matter was informed to the OP. OP appointed Mr. B.S. Cheema as surveyor. Mr. B.S. Cheema visited the place of accident on 21.12.2006 and met the complainant and asked him where the complainant will be getting the vehicle repaired. Complainant informed OP that he will take the vehicle for repair to M/s Tikri Service Station(Telco dealer) at Tikri Border, Delhi. Surveyor on 23.12.2006 visited M/s Tikri Service Station accompanied with Mr Balbir Singh(a denter/repairer from Peeragarhi) and insisted for shifting the vehicle from M/s Tikri Service Station to his workshop and when complainant refused to shift the vehicle, surveyor started insisting for repairing cabin assy, one of the part of the vehicle. He himself earlier has agreed that it needs replacement as the same was not repairable. Thereafter Mr. B.S. Cheema left his place without settling the loss.
It is further stated that the vehicle was repaired at Tikri Service Centre, Tikri Border, Delhi and complainant incurred the expenditure to the tune of Rs.2,85,598/- including carne charges. The complainant forwarded the claim to OP and the claim was rejected on the ground that the driver Sh. Harbhajan Singh of the vehicle was not holding valid driving licence at the time of accident. The driver was holding a motor driving licence No.8225 issued by the L.A. Cuttack and on verification it was found that the same was not issued by the L.A. Cuttack.
It is further stated that the complainant has taken due care when the driver Sh. Harbhajan Singh was employed by him as complainant has taken his driving test and driver was driving the vehicle perfectly and complainant has inspected the driving licence of the driver and it seems to be genuine as the same was renewed by the District Transport Office, Patiala(Punjab). It is pertinent to mention that the DL of the Harbhajan Singh was renewed from 06.03.1997 to 05.03.2000 and again it was renewed upto 04.05.2009 w.e.f. 05.05.2006 by the office of District Transport Office, Patiala (Punjab).
It is stated that OP has wrongly repudiated the claim as it has been held by the Hon’ble Supreme Court in Catena of judgment that if an owner has taken due care at the time of employing the driver of the vehicle by taking test and inspecting the driving licence and if it was found fake at later stage, the owner of the vehicle is not liable for the same. It is prayed that OP be directed to pay a compensation of Rs.1 lakh towards the sufferings on account of harassment.
OP in the reply took the plea that complainant has filed a complaint with the Hon’ble Ombudsman, Chandigarh and deliberately concealed the outcome of the said case with this Forum. It is further stated that insured informed the surveyor that one Sh. Surjeet Singh was driving the vehicle. It was also mentioned in spot survey report that Surjeet Singh was driving the vehicle at the time of accident. The insured however produced the licence of one Sh. Harbans Singh in place of Surjeet Singh as recorded in the documents. The surveyor reported that:-
“Insured showed me the Driving licence of some Harbans Singh in place of Surjeet Singh as told at spot. When I asked him about the change of driver he said he did not know of the real name of driver and that he thought his name was Surjeet. I did not buy insured’s version ad asked him to get the Cabin repaired at any of the workshops(including TATA’s authorised and Peeragarhi) and call me ….”
It is further stated that looking to the damages which did not appear to be major, it was advised to the insured that he can get them repaired with reasonable expenses, however the insured was adamant to change each and every part of the vehicle and mis-behaved with the surveyor. The surveyor has reported that:-
“The insured parked the vehicle …. M/s Tikri Service Centre …. The insured vehicle was again inspected at repairer workshop and the matter discussed with repairer, who said the Cabin Assy., can be repaired but insured is pressing hard for replacement. I told them the cabin’s front show roof is repairable and that I will allow the New Door & Front Wind Screen Glass. The repairers did not agree for this. To be sure I discussed the matter with other TATA authorised repairers in Delhi/Gurgaon who were ready to repair the Cabin Assy…..”
It is further stated that the claim of the claimant was assessed by the surveyor at Rs.28,200/- being reasonable and fair. The driving licence of Shri Harbans Singh was sent for verification and it was found to be fake. Hence the OP was justified in repudiating the claim. As per the terms and conditions of the policy, the towing receipt produced by the complainant was found to be fake. Similarly, the weighment receipt produced by the complainant was fake as complainant was carrying much more load than permitted.
We have heard Ld. Counsel for the parties and carefully perused the record.
The point for consideration is whether OP was justified in repudiating the claim on the ground that the driver was having a fake licence. It is proved on record that the so called licence was alleged to have been issued by registered authority Cuttack, Orissa and this was found to be fake. It is true that the licence was renewed twice by the Transport Authority, Patiala, Punjab but that does not matter at all because it was held by the Hon’ble Supreme Court in case of National Insurance Corporation Limited Vs Laxmi Narain Dhut 2007 (3) SCC 700 that where original licence was fake one, renewal cannot cure inherent fidelity.
The only point for consideration is that whether there was any wilful breach on the part of complainant. The complaint has specifically stated in the complaint that he has taken due care while employing Harbans Singh as driver. He has taken his driving test and the driver was driving vehicle perfectly and the complaint has inspected the diving licence of the diver and it seems to be genuine as the same was renewed by district transport office Patiala Punjab from 06.3.97 to 05.3.2000 and again it was renewed upto 04.05.2009 w.e.f. 05.05.2006.
Complainant has placed the documents in this regard regarding the renewal of the driving licence meaning thereby that at the time when Mr. Harbans Singh was employed as driver by the complainant, Mr. Harbans Singh has produced driving licence before the complainant and the same was duly renewed by the transport authority at Patiala, Punjab. He has also taken the driving test of the driver. He was satisfied with his driving. Under these circumstances, it is difficult to come to the conclusion that there was any wilful breach on the part of the insured.
Here it is relevant to refer to case of Ruby (Chandra) Dutta Vs United India Insurance Company Ltd. – (2011) 11 SCC 269 - In that case the vehicle of the appellant met with an accident. The claim was not settled by the insurance company hence appellant approached Consumer Forum and one of the plea taken was that the driver was holding fake driving licence. It was held that admittedly the original application was not traceable in the Register of Driving Licences but on the strength of other available documents, a duplicate licence was issued and there was a noting in the file that the said duplicate licence was issued only after “verification from the original”. Hence Hon’ble Supreme Court came to the conclusion that the insurance company has failed to prove that the driver was not holding the valid driving licence. In para 24, the Hon’ble Supreme Court has further stated:-
“Obviously, it goes without saying that at the time of giving employment to Sirajul Haque, the owner of the bus must have examined the licence issued to him and after satisfaction thereof, he must have been given employment. Nothing more was required to have been done by the appellant. After all, at the time of giving employment to a driver, the owner is required to be satisfied with regard to correctness and genuineness of the licence he was holding. After taking the test, if the owner is satisfied with the driving skills of the driver then, obviously, he may be given an appointment.”
Matter came up regarding the fake driving licence came before Hon’ble Supreme Court in the case of Pepsu Road Transport Corporation Vs National Insurance Company – (2013) 10 SCC 217 – wherein Hon’ble Supreme Court considered its earlier decision in case of United India Insurance Company Ltd. s Lehru (2003) 3 SCC 338. In para 20 of that judgment it was held:-
“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 licence has in fact 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. We find it rather strange that insurance companies expect owners to make enquires with RTOs, which are spread all over the country. Whether the driving licence shown to them 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 section 149(2)(a)(ii). The insurance company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia, Sohan Lal Passi and Kamla cases. We are in full agreement with the views expressed therein and see no reason to take a different view.”
The Hon’ble Supreme Court in case of Pepsu RTC(supra), after considering the above facts of Skandia Insurance Co. Ltd. Vs Kokilaben Chandra Vandan (1987) 2 SCC 654, Sohan Lal Passi Vs Sesu Reddy (1996) 5 SCC 21, New Delhi Assurance Co. Vs Kamla (2001) 4 SCC 342, National Insurance Co. Ltd. Vs Swaran Singh (2004) 3 SCC 297 and National Insurance Co. Ld. Vs Laxmi Narain Dhut (2007) 3 SCC 700 held in para 10 as under:-
“In a claim for compensation…………. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, 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 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……………. ”
Insurance company has failed to prove wilful breach on the part of complainant. Here in this case there was no reason for complainant to come to conclusion that driving licence is fake. So far as report of the surveyor regarding the replacement of the cabin assy. is concerned, it is significant to note that the repair was carried at Tikri Service Station which was authorised service station of Tata. In fact basically the dispute is regarding this part only as it cost Rs.1,80,300/-. The service centre has come to the conclusion that the part cannot be repaired and has to be replaced and the same was accordingly replaced.
The complainant is entitled for a sum of Rs.2,85,498/- alongwith interest @ 9% p.a. from the date of filing of the complaint and also entitled for Rs.5,000/- towards compensation and Rs.3,000/- towards litigation expenses.
Let the order be complied within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (RITU GARODIA) (A.S. YADAV)
MEMBER MEMBER PRESIDENT
