Orissa

Jajapur

CC/50/2018

Subhasree Samal. - Complainant(s)

Versus

Manager,The New India Assurance Co. Ltd,Jajpur Road,Divisional Office. - Opp.Party(s)

Sri K.C.Kar

20 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION :  JAJPUR.

 

Presents:-    1.    Smt. Susmita Mishra        President,

                                                        2.    Sri Bibekananda Das        Member .

            Dated the 20th  day of October, 2023.

C.C. Case No. 50 / 2018.

Subhasree Samal,

D/O:-  Sudarsan Samal

 At:- Naharapur,

 P.O/Dist:- Jajpur.                                                                                                             .  .  .  .  Complainant.

                   Versus.

1. Manager, The New India Assurance Co.Ltd,Jajpur Road

         Divisional office, Canara Bank Building ,1^st floor,main Road,,

        Jajpur Road, Jajpur.

2. Divisional Manager,New India Assurance Co.Ltd, Kathajodi

Road, Badambadi, Cuttack.. ...Opp. Parties.

                             Counsels appeared for the parties. 

For the Complainant :-  Sri K.C.Kar, Advocate & Associates,

For the Opp. Parties    :-  Sri  A.K.Dash, Advocate & Associate.

Date of filing Complaint    :-              11.06.2018,

Date of Argument           :-                 15.09.2023,

Date of Oder                   :-                 20.10.2023.

MR. BIBEKANANDA DAS, MEMBER  :-

                             The C.C case has been filed U/s 12 of C.P. Act, 1986 and taken up today for order. On repeated calls none appeared from both the parties. However, since it is an year old case, we are disposing it on priority basis as per mandate of C.P.Act,2019.

                   Perused the  documents available on record and also gone through the written version filed by the O.Ps. The complainant has filed this C.C.Case by seeking relief of Rs.4,25,000/- and the O.Ps have filed their written version objecting the prayer on the ground that the Insurance policy being a contract which entirely guided as per terms and conditions of Insurance Policy and the Driving License of the driver was not valid  on the alleged  date of accident and certain documents  were not filed  by the complainant for settlement of claim and for which the claim of the complainant has been rightly repudiated / closed as  “no claim”.  

          After careful scrutiny  of the entire case record  and from the aforesaid  observations  it is our considered view that the O.ps  have committed deficiency in service  and due to gross negligence on the part of the O.Ps, the complainant has sustained heavy financial loss and undergone mental harassment during these period.

                   The facts of the present case is that, in absence of  a valid and effective driving license with the driver is a fundamental breach of the term and conditions of the Insurance policy  in question and the question of law  that arises  for consideration is what is the extent of care / diligence expected of the employer/ insured while employing a driver ? In case of United India Insurance Co.Ltd Vrs Lehru  and  others  a two judge bench has taken the view that :

                             Xxx                     xxx                  xxx

that the Insurance Company can not be permitted to avoid its liability on the ground that the person driving the vehicle at the time of accident was not duly licensed “.

                   It was further held that the  willful  breach of the conditions of the policy should be established. We refer paragraph from the judgement in Pepsu Case SCC-PP-223-24-page-10,wherein it was held that:

                                      “ Xxx                            xxx                         xxx

In a claim for compensation , it is certainly open to the insurer  to take a defence that the driver of the vehicle involved in the  accident was not duly licensed .”

                        Once such a defence is taken, onus is  on  the insurer. But even after it is proved that the license possessed by the driver was a fake one whether there is liability on the insurer is the moot question to be decided. As far as owner of the vehicle is concerned , when she hires a driver she has to check  whether the driver has a valid Driving license . Thereafter she has to satisfy herself as to the competence of the driver. In the present C.C. Case the complainant has clearly mentioned regarding the said fact in the complaint petition. 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 can not be expected to go beyond that to the extent of verifying the genuineness of the driving license with the licensing authority  before hiring the service of the driver. In the present C.C. Case as transpired from the record, no action is taken by the O.Ps for appropriate verification at the time of entering  into the Insurance Policy for the purpose that the license possessed by the driver of the insured is a fake one and to substantiate the fact that  no evidence and documents have been adduced by the O.ps  in support of their case. To avoid its liability  towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy  regarding use of vehicle by a duly licensed driver  or one who was not qualified to drive at the relevant time.

                   From the aforesaid facts and in view of the decision of the Hon’ble Supreme court in case of Nirmala Kothari Vrs.United India Insurance Co.Ltd, it is our considered view that :

                                “    Xxx                       xxx                                xxx

While hiring a driver the employer is expected to verify if the driver has a  Driving License.  If the driver produces a license which on the face off it looks genuine, then the employer is not expected to further investigate into the authenticity  of the license  unless there is cause to believe.”

                   And in the present C.C.Case the complainant has already  complied the same and she finds the driver to be competent to drive the vehicle and satisfied herself.  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 license. However, the decision of the Hon’ble Supreme court in case of Nirmala Kothari Vrs. United India Insurance Co.Ltd is squarely applicable to the present C.C.Case in hand and the Insurance Company would be liable under the policy to compensate the complainant. So, the contentions raised in the written version filed by the O.Ps are not acceptable to this Commission and moreover  in absence of any survey report we are inclined to accept the estimate submitted by the complainant towards the  loss and damage sustained in the vehicle. It is our considered view that the O.Ps are liable to indemnify the insured for the loss and damages caused to her and her vehicle.           

                                                O R D E R.

          We therefore directing the O.ps to pay Rs.3,75,000/-( Three lakh seventy five  thousand)  along with interest @ 9%  per annum  from the date of claim till its realization to the complainant and further it is directed that the O.ps shall also pay Rs.50,000/- ( Fifty thousand) towards  compensation and cost of this litigation within a period of 45 days from the receipt of this order, failing which the O.ps shall be liable to execution proceeding under the C.P.Act,2019.The C.C.case No.50/2018  is allowed  and accordingly disposed of .

          Issue extract of the order to the parties for compliance.

          Judgment pronounced in the Open Commission on this the 20th day of October, 2023.