ADVOCATE WHO APPEAR IN THIS CASE

For the Appellant                     :        Mr. Sabyasachi Paul Choudhury

                                                           Mr. Surajit Choudhury

                                                           Mr. Jayabrata Singha

For the respondent                 :        Ms. Sanchita Roy

                                                        Mr. Rabindra Chandra  Paul

                Date of Argument    :      04-08-2016

                Date of Judgment    :      29-08-2016

D.K.Mahanta, Member

                 The instant appeal has been filed by the appellant/complainant against the order dated 15-05-2013, passed by the District Consumer Disputes Redressal Forum, Goalpara, dismissing the complaint case N0.09 of 2007 filed by him.

                Brief facts giving rise to this appeal are as follows:

                According to the appellant, he is  the owner of the  bus bearing  Registration No-AS-18-3799 that was  insured  with National Insurance Company Ltd under policy  Number 200704/31/05/6300000499 effective for the period from 00-00 hours of 31-08-2005 to the  midnight of 30-08-2006. During the relevant period, one Binod Boro was engaged as the driver of the said bus. It is the case of the appellant that on 26-11-2005, when the said bus was standing  on the National Highway No-37, at Azara, the  dumper truck having the Registration  Number  AS-01R-3562, driven in a rash and  negligent manner, dashed against  the stationary bus. As a result of the aforesaid accident, two bus passengers died at the spot while several other commuters sustained injuries. In that incident, the appellant’s bus was also severely damaged.

               For that reason, the submitted claim before the Insurance Company seeking compensation for damage of his vehicle. The insurer assessed the damage of the accident involved bus  at Rs.1,02,000/-but repudiated the claim set up by the  appellant on the  ground that the driving licence of the bus driver Binod Boro was fake.

              Under the above circumstances, the appellant, as complainant, filed complaint Case No 09 of2007 before the District Forum claiming Rs.1,02,000/- with interest at the rate of 10 % per annum from the date of  filing of the  complaint petition till realization, against the respondent insurance company. The District Forum, after taking into account the pleadings of the parties and the evidence led by them, dismissed the complaint, solely on the ground that at the time of the incident in question, the bus driver did not have a valid licence and therefore, the insurance Company was justified in repudiating the claim of the appellant. In the present appeal, the order of dismissal of his complaint by the District Forum has now been challenged by the appellant/complainant.

               We have heard the learned counsel for the parties. We have also perused the impugned judgment of the District Forum as well as the records of the complaint case.                                                                      

                       It appears from the judgment  under challenge that the District Forum has dismissed  the complaint filed by the appellant/complainant holding that though the bus driver Binod Boro has renewed his driving licence time to time from the office of the District  Transport Officer, Goalpara,his orginal Driving Licence No.37215/MS shown to  have been  issued  from  the Office of the  District Transport Officer,Imphal West District, Manipur, was found to be counterfeit because as per the evidence of the concerned official of the Manipur Government (D.W-1), the said Driving Licence was issued the name of one Loitongbam Rashbihari  Singh, Son of  Late L. Manikchand Singh of Keishampat Leimajan Leikai, Imphal, Manipur, and that the said  Licence was for driving  of two wheelers only.

                     In this connection , the judgment of the Hon’ble Supreme Court of India in the case of Jitendra Kumar –vs- Oriental Insurance Co. Ltd & Anr.(2003) 6 SCC 420 may be taken note of . In that case, the vehicle was damaged in fire caused due to mechanical failure. When the car owner lodged a claim with the insurer for payment of damages, the insurance Company repudiated the said claim solely on the ground that the car driver did not have a valid licence at the time of the incident in question. The District  Consumer Redressal Forum, Jehanabad (District Forum) after hearing the parties came to the conclusion that the accidental fire due to which the appellant’s vehicle got  damaged was not caused due to  any act of the  appellant’s driver  but was due to mechanical fault, therefore, it held the connection of the insurance Company that the appellant’s driver did not hold a valid license could not be a ground to repudiate the claim, accordingly, allowed the claim of the appellant and directed   the respondent –Insurance Company to pay a sum of Rs.80,000/- as damages suffered by the appellant due to  the loss of his motor  vehicle and further directed the payment of Rs.5000/- as compensation and Rs.1000/- as cost of the litigation.

               In an appeal filed by the Insurance Company, the State Commission reversed the said judgment holding that  the driver of the vehicle did not a have  a valid  driving license  and his original  license was a fake which was inadvertently renewed by the  District Transport Officer, therefore, following the judgment  of the National Commission  reported in 1996 (1) CPR 81 (NC) (Raj) Kumar and Anr –vs- New India Assurance Company & ors) held that  the  Insurance Company was justified in repudiating the claim of the appellant.

                The car owner then approached the National Consumer Disputes Redressal Commission, New Delhi (National Commission), against the Judgment and order of the State Commission but the National Commission dismissed his revision petition.

               Therefore, the appellant challenged the decision of the National Commission before the Hon’ble Supreme Court of India and the Apex Court held as under:                                                                                        

“ So far  as the  facts of this case are concerned, there is hardly any dispute, therefore , we can safely proceed on the basis  that the  vehicle in question was damaged  due to mechanical fault and no fault  of the  driver. For the purpose of agreement, we may also proceed on the basis that the driver of the car did not have a valid driving licence.  Question then is: can the insurance  Company repudiate a claim made by the owner of the  vehicle  which is duly  insured with the Company, solely on the ground the driver of the vehicle who had nothing to  do with  the accident did not hold  a valid licence? Answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicle Act,1988 on which reliance was placed by the  State Commission. In our opinion, does not come to the aid of the Insurance Company in repudiating a claim where driver of the vehicle had not contributed in any manner to the accident. Section 149 (2) (a)(ii) of the Motor Vehicle Act empowers  the Insurance Company  to repudiate a claim where in the  vehicle who does not  hold a valid driving  licence is responsible in any manner. It does not  empower  the Insurance Company to repudiate a claim for damages which has  occurred due to acts to which the  driver has not, in any manner, contributed i.e damages incurred due to reasons other than the act of the driver.

           We notice  that in the impugned order national Commission has placed reliance on the judgment of this court in the case of New India Assurance Company (supra) which in our opinion, has no bearing  on this aspect of the case in hand. This Court in the said case held that the fake driving licence when renewed genuinely, does not acquire the validity of a genuine licence. There can be no dispute on this position of law. But then the judgment of this Court in the case of New India Insurance Company  to repudiate any and every claim of the insured (appellant) merely because he had engaged  a driver  who did not have a valid  licence. In the instant case, it is the case of the parties that fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion Insurance Company could not have repudiated the claim of the appellant.

          For the reasons stated above, this appeal succeds, the impugned judgments of the National Commission and the State Commission are set aside and that of the District Forum is restored. The appeal is allowed with costs.”

           In the instant case also it is not disputed that the appellant’s but got damaged when it was hit by the dumper truck having the Registration Number AS-01R-3562 when the bus was in stationary position. In view of this  admitted position, the contention of the Insurance Company that the bus driver  did not hold a  valid licence could not be a valid ground to repudiate the claim, when the evaluation  by their own  surveyor has assessed the claim of damage of the accident involved bus to be Rs.1,02,000/-.

             The finding of the District Forum that the valid driving licence was a condition precedent to claim any damage from the Insurance Company even when the accident in question has occurred due  to no fault/or the act of the driver cannot be accepted in case of damages which has occurred  due to the  acts to which, the driver has not in  any manner, contributed i.e damages incurred  due to reasons other than the act of the driver.                                                                 

               For the reason stated above, the impunged judgment of the District Forum is set aside. In the result, the appeal is allowed with cost of Rs.10,000/- to be paid by the  respondent Insurance Company to the appellant/complainant together with Rs.1,02,000/- (claim of damage assessed by the insurer) plus interest on this claim amount  at the rate of 10% per annum from the date  of filing  of the complaint petition (29-09-2007) till realization.

             The statutory amount deposited by the appellant before this commission, if any, may be released in his favour.

            Send back the original records to the concerned District Forum along with a copy of this order.