STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 13.04.2018
Date of final hearing: 06.10.2023
Date of pronouncement: 23.11.2023
First Appeal No.456 of 2018
IN THE MATTER OF:-
1. The New India Assurance Company Ltd., 1st Floor, Gobind Puri Road, Yamuna Nagar.
2. The New India Assurance Co. Ltd. through its Divisional Manager, Ambala Cantt.
Both are through Mrs. Deep Shikha, Deputy Manager, Chandigarh, RO Legal Office, authorized signatory attorney.
....Appellants
Versus
M/s Layalpur Transport Corporation, Branch at Rainbow Market, Polytechnic Chowk, Ambala City through its Prop. Urjit Singh.
....Respondent
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. R.S. Sharma, counsel for appellants.
Sh. Diwan Singh Adlakha, counsel for respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 23 days in filing of this appeal stand condoned for reasons as stated in application for condonation of delay.
2. Challenge in this appeal No.456 of 2018 is invited by Insurer/OPs, to the legality of order dated 16.02.2018 passed by District Consumer Disputes Redressal Forum-Ambala (In short “District Consumer Commission”) in complaint No.101 of 2016, vide which consumer’s complaint has been allowed.
3. Complainant is registered owner of truck No.HR58A-5845 and got it insured with OPs/appellants vide policy No.31/13/104802 valid from 06.02.2014 to 07.02.2015. On 28.12.2014, his vehicle fell down in drain due to heavy fog and badly damaged. Driver of truck-Ramjan suffered injuries and its cleaner expired at spot. Complainant intimated about this to OPs/appellants; surveyor appointed by insurer surveyed the vehicle. DDR regarding incident was registered. Vehicle was brought to Yamuna Nagar from Jaspur, through crane and got repaired from Roshan Motor Works. Complainant spent Rs.4,75,000/- on it. Insurer got verified driving licence of Ramjan, which was found genuine but it, wrongly and illegally repudiated claim of complainant on 30.09.2015 on ground that: driving licence was not prepared on Smart Card. It is pleaded that it was not a condition in package policy so it is breach of contract by insurer. ‘Refusal’ to pay the claim to complainant is not legal. Complainant has alleged deficiency in service of insurer; he filed complaint thereby seeking direction against insurer to grant Rs.4,75,000/- for damage of vehicle caused due to accident; Rs.50,000/- for loss for not plying the vehicle in business and further compensation of Rs.50,000/- for causing him mental agony and harassment, besides Rs.30,000/- for crane charges.
4. OPs-insurer/appellants in defence has submitted in preliminary objections that: complaint is not maintainable. There is no deficiency in service to complainant who has concealed true and material facts. Driver of offending vehicle is not holding a valid licence. Transport Commissioner of Motor Vehicle Department Govt. of Nagaland had issued order for public information bearing No. PC-23/MV/2007 (PT-1) dated 01.08.2014. Govt. informed ‘general public’ that: w.e.f. 30.10.2009; all driving licences are being issued in smart card and that issue of driving licences on booklets has been discontinued after introduction of smart card. Thus, any driving licence purported to have been issued by authority in Nagaland, in booklet form, after 30.10.2009, is not genuine. In same notice they have asked all driving licence holders, having licences issued by Nagaland Authority in booklet or in any manual format, other than smart card, to report to the authority from where such licence was issued for the purpose of converting booklet driving licence into smart card. Transport Commissioner has mentioned that this conversion to Smart Card has to be completed before 01.12.2014, after which, driving licence other than smart card shall be treated as cancelled. It is admitted that insurer has insured offending vehicle and issued policy. It is admitted that truck/offending vehicle met with an accident which took place due to rash and negligent driving of driver of offending vehicle, who was not holding a valid driving licence. It is admitted that insurance company got verified driving licence of Ramjan-driver of vehicle and same was verified by Licensing Authority to be alleged genuine one. Simultaneously, it is pleaded that driver of offending vehicle is not having a valid driving licence and claimant’s claim was rightly rejected.
5. Parties to this lis led their respective evidence, oral as well documentary.
6. On critically analyzing of pleas and on foundation of evidence as led; learned District Consumer Commission-Ambala vide order dated 16.02.2018 has allowed the complaint and directed OPs/insurer to pay a sum of Rs.3,83,540/- with interest @ 9% p.a. from date of filing of complaint till realization and to pay Rs.5,000/- for harassment, mental agony and cost of litigation etc.
7. Feeling aggrieved; insurer/OPs has filed this appeal.
8. Learned counsel for appellants/insurer has urged that impugned order dated 16.02.2018 is unjustified and illegal on all fronts. Evidence has not been evaluated in proper legal perspective. Repudiation of complainant’s claim was on well founded reason that driver-Ramjan of complainant’s vehicle was not holding valid driving licence, in form of smart card, which was the mandate of Govt.’s instructions dated 01.08.2014, to be complied by all drivers, who hold driving licence in booklet form. Since, complainant’s driver was not holding his driving licence in form of smart card at the time of accident (on 28.12.2014) therefore, repudiation of claimant’s claim through communication dated 30.09.2015 (Annexure C-5) was legally justified. On these submissions; learned counsel for appellants/insurer has urged for acceptance of appeal.
9. Refuting above contentions; learned counsel for complainant/respondent has supported the impugned order dated 16.02.2018 passed by learned District Consumer Commission-Ambala on the ground that it is outcome of proper appreciation of relevant facets/evidence so brought on record in complaint and no interference in this appeal is tenable.
10. This Commission has subjectively analyzed rival submissions, so put before it.
11. Having given anxious consideration to the material on record this Commission of firm opinion that this appeal does not contain merit. There is no denial that vehicle No.HR58A-5845 belonging to complainant had faced mishap on 28.12.2014, while plying. Ramjan S/o Kamil of Nanda Colony, Yamuna Nagar was on wheels of this vehicle on that ill-fated day. Unfortunately, Ikram-cleaner in vehicle had died at spot. Admittedly, appellants is insurer of this vehicle vide policy Annexure C-1 which has validity from 07.02.2014 to 06.02.2015. Mishap had taken place during currency of this policy. Complainant lodged claim with OPs/Insurer/appellants for damage to his vehicle No. HR58A-5845. Sole ground of repudiation of complainant’s claim by appellants, as per its letter dated 30.09.2015 Annexure C-5 is that: driving license of driver Ramjan was not issued as smart card.
12. Moot proposition before this Commission is: how far this reason contained in repudiation letter dated 30.09.2015-Annexure C-5 is legally justified. Copy of driving licence No. 42228/PK/PROF/10 of Ramjan is Annexure R-10, which is issued by District Transport Officer, Nagaland. It was issued on 02.11.2010 and renewed upto 01.11.2016. Through this licence, Ramjan has been authorized to drive the vehicle of description, as involved in mishap of 28.12.2014. Insurer has taken a specific stand in written version in para No. 5 that company got verified driving licence of Ramjan and same was verified by Licensing Authority to be alleged genuine one. Simultaneously, at same breath the insurer, is taking a distinct and variant plea in same para (No.5) of its written version that “in fact driver of offending vehicle is not having valid licence.” Above stance of insurer has been testified by insurer through duly sworn affidavit (Annexure R1) of Sh. Hitesh Jhulka, Administrative Officer. There is communication dated 01.11.2016-Annexure R7 addressed to Sh. M.L. Vaish (Retd.) by Govt. of Nagaland on aspect of driving licence No. 42228/PK/PROF/10 under RTI Act. Integral part of this letter reads as under:-
“I have honor to inform you that no such driving licence with No.42228/PK/PROF/10 has been found in the office records of the office of the undersigned.”
Appellants/insurer has closed its evidence through statement of its counsel dated 19.12.2016.
13. If above text of letter is given a conjoint reading with letter dated 30.09.2015 Annexure C5, then it would decipher that: licence of Ramjan was not on smart card and that is why Sh. M.L. Vaish was informed through communication dated 01.11.2016 (Annexure R-7) that this licence No. 42228/PK/PROF/10 was not found in their record. Palpably, licence of Ramjan was in booklet form. In sheer contrast; appellant has been conveyed through information solicited through RTI Act that: Driving Licence (42228/PK/Prof/10) was found genuine in all respect and same was effective upto 01.11.2016 issued on 02.11.2010. It became the reason of insurer/appellants to state in its written version in para No. 5 thereof that licence of Ramjan was verified to be alleged genuine one. As already observed this stance has been testified by insurer through affidavit of its Administrative Officer. This admission of appellant/insurer (genuineness of Driving Licence of Ramjan at the time of accident and information conveyed to it, under RTI) in its written statement as well in duly sworn affidavit Annexure R-1 of its Administrative Officer has acquired immense legal ramification and insurer cannot wriggle out from flowing legal consequences. In wake of above, the reliance placed by the insurer/appellant on Govt. of Nagaland instructions dated 01.08.2014 (Annexure R-5) stood traumatized and said instructions will not sub-serve any meaningful and majestic cause of appellants.
14. Legal position on the aspect of driving licence and liability of the insurance company is no more res-integra. Hon’ble Apex Court in case titled as Nirmala Kothari Vs. United India Insurance Company Ltd. 2020(2) RCR (C) 234 has held that “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) (1) (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.” Earlier also, Hon’ble Apex Court in cases titled as United India Insurance Company Ltd. Versus Lehru and others 2003(2) RCR(C) 278 has taken view that: Insurance Company cannot be permitted to avoid its liability on the ground that person driving the vehicle at the time of accident was not duly licenced. It was further held that willful breach of condition of policy should be established. In yet another case titled as Pepsu Road Transport Corporation Vs. National Insurance Company Ltd. 2013(4) RCR (C) 273 the Hon’ble Apex Court observed as under in Para No. 10 of its judgment:-
“In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was fake one, whether there is liability on the insurer is the moot question. 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. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh’s case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation.”
Thus, legal position is settled that insurer can certainly take defence that licence of driver of vehicle at the time of accident was invalid/fake; however onus of proving that the insured did not take adequate care and caution to verify the genuineness of licence or was guilty of willful breach of condition of insurance policy or contract of insurance lies on insurer. In view of above cardinal principles, liability has been rightly fastened upon insurer/appellants by learned District Consumer Commission-Ambala through impugned order dated 16.02.2018.
15. Looking from another angle. It is apparent from record through document Annexure R-7 that Govt. of Nagaland has intimated Sh. M.L. Vaish through its letter dated 01.11.2016 informing him that no such driving licence No. 42228/PK/Prof./10 has been found in their office record. Sh. M.L. Vaish is insurer’s investigator. It is his application Annexure R-9 dated 01.10.2016 under RTI Act. Sh. M.L. Vaish-Investigator had informed insurer/appellants through his letter dated 11.11.2016 Annexure R-6 thereby conveying contents of Govt. of Nagaland’s letter dated 01.11.2016. In the proceeding before learned District Consumer Commission Sh. M.L. Vaish’s affidavit thereby testifying on oath, regarding credibility of above mentioned facts, was required to be filed, which was not done. Likewise, there is no affidavit of District Transport Officer, Phek, Nagaland in order to prove contents of document Annexure R-7. This being the scenario; judgment of Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla reported as 2017 latest HLJ (HP) 1510 in case of National Insurance Company Ltd. Vs. M/s RP Earth Movers and Builders is attracted. Relevant extract of Para No. 11 of this judgment reads:
“11. Submission of learned advocate appearing on behalf of insurance company that driver namely Shri Arvind Kumar was holding only HTV, HPV licence at the time of incident and was not competent to drive excavator/Volvo crawler and on this ground appeal be allowed is decided accordingly. Driving licence verification report annexure OP-7 was submitted by Narendra Tapodhan investigator insurance wherein it is specifically mentioned that as per report of DTO Tuensang Nagaland driver was not competent to driver excavator/Volvo crawler type of vehicle. Insurance company did not file affidavit of Narendra Tapodhan in evidence in order to prove contents of annexure OP-7. Similarly, insurance company did not file affidavit of District Transport Officer Tuensang Nagaland in order to prove the contents of annexure OP-8. It is well settled law that as per Section 13(4)(ii) of Consumer Protection Act, 1986 documentary evidence could be produced which is producible as evidence. State Commission is of the opinion that contents of document can be producible as evidence by way of affidavits of persons who had issued documents.”
16. Accordingly, by legally and factually examining all relevant aspects of this matter, this Commission reaches at conclusion that learned District Consumer Commission has rightly observed in its order dated 16.02.2018 that claimant’s claim was illegally repudiated. OPs/insurer has been rightly non-suited. Its letter of repudiation dated 30.09.2015 has been rightly and legally set aside. There is no perversity or illegality in the impugned order dated 16.02.2018 passed by learned District Consumer Commission-Ambala, which of course is outcome of meticulous appreciation of all material facets of this case. Accordingly, order dated 16.02.2018 is affirmed and maintained. Present appeal, being devoid of merits is hereby dismissed.
17. Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
18. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
19. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
20. File be consigned to record room.
Date of pronouncement: 23rd November, 2023.
Naresh Katyal
Judicial Member
Addl. Bench-II
