| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No. 245/11 S. Kulwant Singh A-4A, Vishwakarma Colony M.B. Road, Lal Kuan Tuglakabad, New Delhi-44 Also at : A-256, New Friends Colony New Delhi ….Complainant Versus Future Generali India Insurance Company Limited, M-10, 2nd Floor, Deepsons Buildings, NDSE-II, New Delhi-110049 ….Opposite Party Date of Institution :18.07.2011 Date of Order :30.01.2023 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Member: Sh. U.K. Tyagi - Complainant has made a request to pass an award directing the Future Generali India Insurance (hereinafter referred to as OP) to pay a sum of Rs. 2,03,910/- towards cost of repairs alongwith interest @12% p.a from the date of lodging the claim; (ii) a sum of Rs.1,00,000/- as compensation on account of mental pain, agony etc and Rs.25,000/- as litigation expenses etc.
- Brief facts of the case are as under;
The Complainant is owner of Truck No. HR-38-G-5001 Make TATA LPT-25/2 and duly insured by the OP for the period 26.12.2009 to 25.12.2010. The said truck met accident with the trailor at Jijhod Crossing, Sector 24, Noida. The Matter was reported vide DD No.33 on 04.06.2010. Copy of DD is enclosed herewith as Annexure D. The said accident occurred due to rash and negligent driving of the driver of the trailor. OP was also informed of the accident on 05.06.2010 vide reference no.74372 & claim No.CV061485 & copy of the same is annexed as Annexure E. The driver of said vehicle carried a valid licence. - OP deputed Mr. Manish Balra as surveyor. He conducted survey and allowed the repair of the said vehicle and further requested to submit the claim-bill to OP. Accordingly, the complainant got repaired the vehicle and submitted the bill of Rs.2,03,910/- to OP on 10.08.2010. It was intimated vide letter dated 23.11.2010 to the complainant that his claim has been closed on account of fake driving licence of driver. Sh. Rehman driver of complainant was found holding fake licence and asked the complainant to explain the above within 7 days. The same was replied to on 22.11.2010. It was also alleged by the complainant that instead of going through the letter dated 22.11.2010, the OP again issued letter dated 25.11.2010 reiterating the same points. The Complainant, not being satisfied with response of OP, sent email dated 30.11.2010 which was reported by OP raising the same issue of fake licence. The conduct of the OP, being absolutely arbitrary since the issue of fake licence was not in his knowledge and moreover, the accident was solely caused by the driver of another vehicle ie Trailor. As such, rejection of claim tantamount to deficiency in service on the part of OP. Hence the complaint.
- OP, on the other hand, filed its reply, interalia raised some preliminary objections. At the time of insurance, the IDV of the said vehicle was declared Rs.5,50,000/-. It is true that the said vehicle was being driven by Mr. Rehman at the time of accident on 02.06.2010 at Jijhod Crossing, Sector 24, Noida. The surveyor had assessed the loss of Rs.1,16,419/-. The surveyor, upon investigation came to this fact that driver who was driving the vehicle, was holding a fake driving licence. The same amount to clear violation of terms & conditions of the insurance policy/contract and more specifically, violation of Section 3 of Motor Vehicle Act which casts an obligation on a driver to hold a valid/effective driving licence. The copy of the said survey-report is annexed as Annexure-B. The matter of fake licence was brought to the notice of the insured many times; the OP vide its letter dated 28.11.2011 repudiated the claim of the insured as “No claim” for the violation of above terms & Conditions.
- The OP further maintained that the claim is liable to be dismissed on the sole ground that complainant was under solemn obligation to disclose all the relevant material facts with respect to his claim in question to the OP. Any concealment thereto would give right to OP to repudiate the claim on suppression of facts.
- Both the parties have filed written submissions as well as evidence-in-affidavits. Written statement is on record so is rejoinder. Oral arguments were heard & concluded.
- The right of the OP to file written statement was closed on 13.12.2011 by this Forum. The same was set aside by the Hon’ble State Commission vide its order dated 04.05.2013. The Forum also allowed substitution of the legal heirs of the complainant.
- This Commission has gone into entire material placed on record and due consideration was given to the arguments as well. The OP contended that the surveyor vide its report dated 10.06.2010 categorically stated that “After scrutinizing the claim documents and verification of DL from the concerned authority, it was found that the driver Sh. Rehman as mentioned in claim form was driving the vehicle at the time of accident was having fake licence. The DL No.143/2003 was found issued in the name of Kamal Kant Dinkar as confirmed by RTI”. On this very ground under Section 26 of CP Act, 1986, the OP ought to be dismissed of complaint on being frivolous.
- As stated above, there is clear violation of terms & conditions of Insurance Contract and more specifically violation of Section 3 of Motor Vehicle Act which casts obligation on the driver to hold a valid driving licence. The Hon’ble National Commission in United India Insurance Co. Ltd. Vs. Inderjeet Singh 1 (2011) (P) 69 (National Commissioner) held that “The effect of fake licence has to be addressed in this light of what has been stated by this Court in New India Assurance Co. Once the licence is a fake one, the renewal cannot take away the effect of fake licence. Meaning thereby, the fake licence remained fake even in subsequent processes”.
- In view of the above narration, it is beyond doubt that the driver of the said vehicle was carrying the fake licence. Thus violating the terms & conditions of the insurance policy/contract and further violating of Section-3 of Motor Vehicle Act. In such circumstance, no claim of the complainant survives as maintained by OP.
- The Hon’ble Supreme Court in the case of Nirmal Kothari Vs. United India Insurance Co. Ltd. decided the case on 04.03.20 held that “while hiring a drive 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 further into the authenticity of the licence unless there is cause to believe otherwise. If he employer finds the driver to be competent to drive the vehicle and has satisfied himself that driver has at a driving licence, there would be no breach of Section 149(4)(9) (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 insured comes to know about the fake licence, even if, allowed to continue the driving of vehicle, the insurance company would no longer continue to be liable”.
- Respectfully following the above judgment of Hon’ble Apex Court. The complainant cannot be held responsible for the holding the fake licence by driver. In view of said the repudiation of claim by OP is unwarranted and uncalled for. Hence, OP is directed to pass the claim of Rs. 116,419/- as determined/assessed the loss by the surveyor of the OP alongwith interest @ 5 % p.a. from the date of repudiation of the claim within two months from the date of receipt of this order failing which the interest shall be levied @ 9% p.a. till the realization of payment.
File be consigned to the record room and order be uploaded on the website. | |
