Date: 12-11-2014

Sri Debasis Bhattacharya

This appeal is directed against the order dt. 25-11-2013 in Case No. 1064/2009, passed by the ld. District Forum, Kolkata Unit II, whereby the complaint case has been allowed on contest in part.  Being aggrieved by and dissatisfied with the same, the OPs thereof has preferred this appeal.

Brief facts of the Complainant’s case is that he is the registered owner of Vehicle no. WB-15-7454.  He took an insurance policy in respect of the said vehicle from the OP insurer being Policy No. 101800/31/06/6300001573 for the period from 28-09-2006 to 27-09-2007.  The insured vehicle met with a road accident on 07-03-2007, following which, an FIR was lodged with Gobindpur (Barwadda) Police Station on the very same day.  The Complainant submitted claim form together with an estimate of Rs. 3,00,000/- and other relevant documents to the OP No. 1.  After conducting survey, the Surveyor M/s J.K.Mookherji & Co. assessed the loss at Rs. 2,71,500/-.  The Insurer, however, stood tight over her claim for a long time and when her repeated persuasion did not yield any positive result, the Complainant served a legal notice upon the OP insurer on 17-07-2008.  In reply to said Lawyer’s notice, the OP No. 2 vide its letter dt. 22-07-2008 repudiated the claim on the ground that the driver of the vehicle was not holding proper driving license to drive the insured vehicle which is categorized as HGV, whereas the driving license allows the driver to drive only LMV.  Hence, the case.

On the other hand, it is the case of the OPs that as the Complainant violated the policy condition; for which they have rightly repudiated her claim on 22-07-2008.  So, the Complainant is not entitled to get any benefit under the policy.

The point for consideration under this appeal is whether the impugned order is in order or the same suffers from any kind of legal/factual incongruity.

Decision with reasons

Ld. Advocate for the Appellants has submitted that previously the complaint case was dismissed by the Ld. District Forum, and thereafter, it was remanded back on an appeal filed by the Complainant.  In the instant case, the Surveyor assessed the loss at Rs. 2,71,500/-, which, in fact, the Complainant accepted by an acceptance note.  But, the dispute arose over the driving license of the driver of the insured vehicle.  In real terms, he was holding an LMV license, whereas, the insured vehicle was a heavy one, for which,  the insurer repudiated the claim.  The Ld. District Forum has wrongly and mistakenly assumed that the LMV license was in order and perfect for the purpose, more so, as the assessment of loss/damage was made to the tune of Rs. 2,71,500/-, which, no doubt, the OP ought to have released.  It does affect Section 2(10) of the Motor Vehicles Act, which defines what stands for ‘driving license’.  The impugned order is vitiated because of lack of material or no material to justify passing of the impugned order; the impugned order suffers from malice in fact and malice in law.  An illegal act cannot be converted to a legalized one in this fashion.  The Surveyor is assigned to assess the loss and quantum, but he has got no authority to grant and sanction and/or release any amount to the insured, which is subject to the terms and conditions of the Insurance Policy.  In this case, it is obvious that the vehicle was a Heavy Truck (Transport) Vehicle.  He has referred to several decisions of the Hon’ble National Commission, which are reported as 2013 (3) CPR 549 (NC), 2013 (4) CPR 266 (NC), III (2010) CPJ 256 (NC), III (2010) CPJ 52 (NC) and 2014 (3) CPR 39 (NC).

The Ld. Advocate for the Respondent, however, has submitted that the Appellants have made out a completely new story in the appeal.  There has been an acceptance letter, which stands, and not subject to cancellation.  Save and except the dispute over the driving license of the driver, there is complete unanimity as regards other aspects of her claim.  The driver of the ill-fated vehicle was holding a valid driving license, notwithstanding, the same was a LMV license.  In his defense, the Ld. Lawyer has referred to a number of decisions.  First, of the Hon’ble Supreme Court reported in II (2010) CPJ 9 (SC), IV (2008) CPJ 1 (SC) and III (1999) CPJ 5 (SC).  Secondly, of the Hon’ble National Commission reported in 2013 (1) CPR 409 (NC).  Thirdly, of the Hon’ble Punjab State Commission, Hon’ble Union Territory of Chandigarh Commission, Chandigarh and Hon’ble Gujarat State Commission, reported, respectively in II (2006) CPJ 92,  1 (2011) CPJ 96 and II (2005) CPJ 244.

It so happened that the accident occurred because of a sudden collision between the insured vehicle and another truck bearing no. WB-41B-4496, as reflected from the Motor Claim Form furnished by the Complainant.  It is, however, worth mentioning that the Complainant did not mention it in the petition of complaint.  Also, the type of the vehicle was kept under the wrap of secrecy in the petition of complaint, but, it is reflected from the said Motor Claim Form that the Vehicle was having a registered laden weight of 16,200 Kgs., and unladen weight of 6,000 Kgs., and most pertinently and importantly, it was carrying Maruti cars as goods.  It was wrongly claimed in the Motor Claim Form that the driver was authorized to drive HMV, while the truth is something else.  There are, thus, clear acts of suppression of material facts, which should not have escaped the attention of the Ld. District Forum while adjudicating the case.  The said vehicle was registered and insured in West Bengal, but at the time of the accident, it was moving in the state of Jharkhand, with such huge loads of Maruti cars being driven by a person authorized to drive only LMV.  There was every possibility that the “heavy’ accident could have proved fatal and resulted in loss of human life and/or injury to passersby.  Luckily, nothing like untoward happened.  In any case, such wrongdoing cannot be legalized and condoned gracefully by whims, surmise and conjecture.  The driver of the insured vehicle did not have a “driving License” as enunciated in Section 2(10) of the Motor Vehicles Act, 1988.  Such surreptitious act and negligence on the part of the Complainant cannot be approved and given effect to by allowing the claim for wrongful gain.  In such facts and circumstances, the impugned order has no leg to stand on and cannot survive.

In the result, the appeal succeeds.

Hence,

ORDERED

That the appeal be and the same is allowed on contest against the Respondent.  The impugned order is hereby set aside.  Consequently, the complaint stands dismissed.