This revision petition has been filed by the petitioner Shriram General Insurance Co. Ltd. & anr. against the order dated 27.07.2016 of the State Consumer Disputes Redressal Commission, Rajasthan (in short ‘the State Commission) passed in First Appeal No.635/2013. 2. Brief facts of the case are that on 29.12.2009, the respondent get insured his TATA-LPS 4018, Trailor bearing registration no.RJ-01GA-5476 vide policy no.106002/31/10/002725 with the petitioners insurance company for the period from 29.12.2009 to 28.12.2.010 for IDV of Rs.16,72,000/- subject to the terms and conditions of insurance policy. On 12.12.2010, the vehicle was loaded with consignment of Project Cargo Consignment Note No. MND/24A/0512 of M/s. Delhi Assam Roadways Corporation Ltd. loaded from Mundra Port to Delhi being driven by driver Chand Kharol which was signed by driver as Chand Kharol and mentioned his DL No.7486/Kekri. On 13.12.2010, the vehicle of the respondent met with an accident at 5:00 AM near Chaudhary Hotel, Sirohi Ajmer road, Sirohi and regarding this FIR No.272/2010 was registered in PS: Sirohi on 13.12.2010 against the driver of insured vehicle namely Chandmal Kharol. On 14.12.2010, the respondent informed petitioner company regarding accident. The petitioner Insurance Company immediately appointed duly licensed and independent surveyor H.S.Saluja for spot survey to verify the factum of accident and collect the documents. On 16.12.2010, the surveyor inspected the spot and collected relevant documents such as consignment Note, FIR, etc. and submitted detailed spot survey report dated 16.12.2010 to the petitioners. The petitioner Insurance Company further appointed duly licensed and independent surveyor Mr. Ashish Goyal to assess the liability of petitioners, and the surveyor submitted detailed Final Survey Report dated 22.03.2011 to the petitioner Insurance Company thereby assessing the net liability of the petitioner Insurance company to the tune of Rs.5,40,000/- as per the terms and conditions of the insurance policy subject to admission of liability by the insurance company. The petitioners closed the claim of the respondent/complainant for not providing the DL of driver Chandmal named in the consignment Note and FIR vide its letter dated 11.05.2011 referring to earlier letters. In January, 2012, the respondent/complainant being aggrieved by the closure of his claim filed a complaint case No.20/2012 before the District Forum, Ajmer against the petitioners alleging deficiency in service. The complaint was resisted by the petitioner Insurance Company by filing written statement denying all the allegations and any deficiency in service. It was alleged that another person has been implanted as driver of the vehicle, whereas the FIR and the consignment challan referred to the driver Chand Mal. It was also alleged that it was a case of fraud and therefore, the consumer forum did not have jurisdiction to deal with this case. The District Forum, however, vide its order dated 29.04.2013 allowed the complaint and directed the petitioner Insurance Company to pay the amount of Rs.5,40,000/- as assessed by the surveyor along with interest @9% p.a. from the date of complaint till actual payment and Rs.5,000/- towards litigation cost. The petitioner Insurance Company filed first appeal before the State Commission being 635 of 2013. The State Commission vide its order dated 27.07.2016 dismissed the appeal. 3. Hence the present revision petition. 4. Heard the learned counsel for the parties and perused the record. Learned counsel for the petitioner Insurance Company stated that consignment challan mentions the name of the driver as Chand Mal and his driving licence no.7486 issued by Kekri Licencing Authority is mentioned in this consignment challan. In the FIR having got registered by the driver of another truck with which the insured truck collided, the name of the driver is also mentioned as Chand Mal. Now another person Shankar Lal has been implanted in place of Chand Mal and it has been pressed by the complainant that both these persons are same and the name of the driver is Chand Mal @ Shankar Lal. Preliminary surveyor as well as the final surveyor have mentioned the name of driver as Shankar Lal and different licence number is given. The fact is that the driving licence no.7486 of the driver Chan Mal was verified from the Kekri Licencing Authority and it was found that this licence has been issued to somebody else and not to Chand Mal. It seems that after verification of the driving licence of Chand Mal, the complainant/owner of the vehicle implanted another person Shankar Lal as driver of the vehicle. 5. It has been further stated by the learned counsel that both the fora below have not gone deep into the issue of the driver who was actually driving the vehicle at the time of accident. The complainant has also stated that the charge-sheet has been filed in the name of driver Shankar Lal @ Chand Mal and therefore, it has been asserted by the complainant that there is no dichotomy either in record or in the assertion of the complainant or in the surveyors’ reports in this regard. Learned counsel for the petitioners stated that all these documents have been created only after the date of accident and no document has been filed by the complainant showing that Chand Mal and Shankar Lal are the same person. 6. On the other hand, learned counsel for the respondent/complainant stated that driver is the same and his name is Chand Mal @ Shankar Lal. His actual licence number has been reported by both the surveyors in their report. The driver was driving the vehicle with the licence, which has been issued in the name of Shankar Lal. Even the police has filed the charge-sheet in the name of Shankar Lal as accused driver. Clearly, the name of Chand Mal is mentioned in the FIR as driver, however, the police after investigation have found that the name of the driver is Shankar Lal @ Chand Mal and that is why the charge-sheet has been submitted in the name of Shankar Lal having a valid driving licence. Both the fora below have examined all these aspects and have found the claim of the complainant as justified. The scope under the revision petition is quite limited as this Commission cannot reassess the facts against the concurrent finding of the fora below. 7. I have carefully considered the arguments advanced by the learned counsel for both the parties and examined the record. FIR mentions the name of the driver as Chand Mal and there is no mention as Chand Mal @ Shankar Lal. Even in the consignment note, the name of the driver is mentioned as Chand Mal and not as Chand Mal @ Shankar Lal. Even the driving licence of driver is mentioned there, which is driving licence No.7486 issued by Kekri Licencing Authority. On verification, this licence has been found to be of another person and not of Chand Mal. The driving licence mentioned by the surveyor is not mentioned on the consignment note. It may be true that before the surveyors the complainant may have told the name of the driver as Shankar Lal and his actual licence number was given to the surveyors. It is to be examined as to who was the driver of the vehicle at the time of accident. The name of Shankar Lal does not figure on the consignment note or in the FIR. It is true that the police have filed a charge-sheet in the name of Shankar Lal and it has been stated that Chand Mal and Shankar Lal are the same person. First of all, no proof has been filed by the complainant which pertains to any period before the date of accident for proving that they are the same person. Even if they are the same person, licence on the basis of which the driver was driving the insured vehicle was driving licence no.7486 which has been found to be fake. It does not matter if the surveyors have reflected Shankar Lal as driver and a different licence number is given in the survey report. For deciding the claim, one has to see the driving licence, which was being used for driving the vehicle at the time of accident and clearly this licence has been found to be fake. Thus, the vehicle was being driven on the basis of a fake driving licence. However, in such cases, the Hon’ble Supreme Court has recently taken a very benevolent view that if the licence apparently seems like a genuine licence but is found to be fake in verification, the claim may be allowed if the Insurance Company is unable to prove that the owner had the information about the fake licence of the driver. In Nirmala Kothari vs. United India Insurance Co. Ltd., Civil Appeal Nos.1999-2000 of 2020, decided 04th March, 2020, the Hon’ble Supreme Court has observed the following:- “11. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. 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 licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable.” 8. In the case at hand, clearly, the Insurance Company has not claimed that the complainant had the information that the driver was having a fake driving licence. It is not important to signify the driver, but it is important to identify the driving licence on which the vehicle was being driven. This is the driving licence No.7486 of Chand Mal which has been found to be fake. In the normal course, considering this as violation of a condition of the policy, the complainant may have been entitled to insurance claim on non-standard basis (75% of the claim) in the light of the judgment of the Hon’ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Company Limited, (2010) 4 SCC 536, but in the present case, the complainant has not come with the clean hands as he has tried to show the existence of a different driving licence of a person Shankar Lal who is stated to be another name of Chand Mal which has been disputed. Therefore, in the facts of the instant case, relying on the decisions of the Hon’ble Supreme Court in Nirmala Kothari vs. United India Insurance Co. Ltd. (supra) and in Amalendu Sahoo Vs. Oriental Insurance Company Limited, (supra), I deem it appropriate to allow 60% of the claim as assessed by the surveyor. 9. Based on the above discussion, the revision petition No.3030 of 2016 is partly allowed and the insurance claim of the respondent is allowed at 60% of the claim as assessed by the surveyor. Consequently, the petitioner Insurance Company is directed to pay Rs.3,24,000/- (60% of Rs.5,40,000/-) to the respondent complainant along with interest @ 6% per annum from the date of filing of the complaint before the District Forum till actual payment: The cost of complaint of Rs.5,000/- awarded by the District Forum is maintained. Orders of the fora below stand modified accordingly. This order be complied within a period of 45 days from the date of receipt of this order. |
