DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> <br /> C.C. No. 232 of 13.8.2007<br /> Decided on : 20.12.2007<br /> <br /> Ravi Kumar S/o Madan Lal through his Special Power of Attorney holder Baldev Kumar Mittal S/o Sh. Hari Ram R/o Bibiwala Road, Street No. 10, Bathinda. <br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> 1. National Insurance Company Limited, Divisional Office, The Mall, Bathinda through its Divisional Manager.<br /> 2. National Insurance Company Limited, Branch Office at Main Bazar, Malout through its Branch Manager.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh.Hira Lal Kumar, Member<br /> Dr.Phulinder Preet, Member<br /> <br /> For the complainant : Sh. R.D Goyal, Advocate<br /> For the opposite parties : Sh. M.L Bansal, Advocate <br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT:-<br /> 1. Complainant is the owner of vehicle Cargo 909 bearing Registration No. HR-62-0148. Opposite party No. 2 is working under Bathinda Divisional Office of National Insurance Company Limited. This vehicle was comprehensively insured for a sum of Rs. 2,15,000/- (IDV) with Malout Branch Office of National Insurance Company Limited vide Insurance Certificate No.401006/31/06/6300000836 w.e.f. 15.8.2006 to 14.8.2007. Opposite insurance company has not issued insurance policy alongwith terms and conditions till date. On 21.2.2007, this vehicle was being driven by Gurjit Singh @ Gurmeet Singh S/o Darshan Singh. At about 3.30 A.M it had met with an accident in the revenue limits of P.S Narnaul, District Hisar on main G.T Road with Truck No. HR-38-F-2511. In this regard, FIR No. 42 dated 22.2.2007 was registered in Police Station, Narnaul, District Hisar against Maghru Khan driver of the truck as accident had taken place due to his negligence. In the accident, Cleaner Manjesh of Cargo 909 had died. Information of the accident was given at Hansi i.e. nearest office of the opposite insurance company. Shri Siri Ram Bishnoi was deputed spot surveyor. Requisite documents i.e. photocopies of registration certificate, insurance certificate and FIR etc. were received by him. Thereafter, spot survey was conducted and spot survey report is in the possession of the opposite parties. Cargo 909 was totally damaged in the accident. This vehicle was taken on Sapurdari from the court of Sh. Rakesh Singh, CJM, Hansi on 6.3.2007. After that it was shifted to Bathinda with the help of Crane by paying Rs. 6,000/- as towing charges. Intimation was given to opposite party No. 1 in the month of March, 2007 requesting final survey. Sh. Subhash Madan was deputed as final surveyor. Vehicle was inspected by him on 21.3.2007 at M/s. Punjab Motor Repair Works, Bathinda. He had also obtained the estimates of M/s. Punjab Motor Repair Works, Guru Nanak Auto Electric Works, Bathinda. Estimates of rates of spare parts were got obtained by him from him (complainant) from Delhi. On 18.4.2007, surveyor had demanded estimates from some authorized dealer of Ashoka Ley Land. Accordingly, he (complainant) got prepared the estimates on 1.5.2007 from Imperial Motors (M/s. Star Vehicles Private Limited) authorised dealer of Ashoka Ley Land i.e. manufacturing company. Surveyor had given the direction that the estimates be sent through Divisional Office. He had assured that it is a case of total loss of the vehicle and the insured vehicle would be treated as Constructive Total Loss. He had further assured that full claim as per IDV i.e. Rs. 2,15,000/- would be paid alongwith the estimate charges and towing charges. A sum of Rs. 5,000/- was paid by him (complainant) as estimate charges to Imperial Motors vide receipt No. 111 dated 1.5.2007. Since the vehicle is not road worthy, it is lying in front of the house of Baldev Kumar Mittal, Bathinda. It is alleged by him that final surveyor had obtained his signatures on blank consent form,vouchers, forms and blank papers with the undertaking that he and his company would pay total loss as per IDV alongwith estimate charges and Crane charges. It is further added by him that Gurjit Singh alias Gurmeet Singh was employed by him after seeing his original driving licence and also testing his driving. Verification of the driving licence was also obtained. More than five months have elapsed, but there is no response from the opposite parties concerning the payment of the claim. Rather, they have again demanded the documents which have already been supplied vide letter dated 13.6.2007. Spot survey and final survey reports have not been supplied to him. He withdraws the blank consent form, vouchers, forms and blank papers. He alleges that he has undergone mental agony, pain and sufferings due to the deficiency in service on the part of the opposite parties. In these circumstances, complaint under section12 of the Consumer Protection Act, 1986 has been preferred by him seeking direction from this Forum to the opposite parties to pay him compensation of Rs. 2,15,000/- as per IDV alongwith interest @ 18% P.A from the date of accident till payment, Rs. 6,000/- as towing charges, Rs. 5,000/- as estimate charges, Rs. 25,000/- as charges for mental agony, pains and sufferings and Rs. 10,000/- as litigation expenses.<br /> 2. Opposite parties filed their version taking legal objection that complainant has got no cause of action; driver of Cargo 909 was not holding valid and effective driving licence at the time of accident; this Forum has got no jurisdiction to entertain and try the complaint and that complaint has been filed to harass and humiliate them. On merits, they do not deny ownership of Cargo 909 and its comprehensive insurance with IDV of Rs. 2,15,000/- for the period from 15.8.2006 to 14.8.2007. Similarly, they dot deny that opposite party No.2 is working under Divisional office, Bathinda and that policy is issued as per Insured's Declared Value. Depreciation has to be determined as per market value at the time of loss. They admit that accident had taken place with truck No. HR-38-E-2511 within the limits of Police Station, Narnaul, District Hissar. On verification of the driving licence from D.T.O, Ferozepur, it has been found that the driver of the complainant was not holding valid driving licence. This licence was issued to some Puran Chand S/o Krishan Kumar. Verification has been given by DTO, Ferozepur vide letter dated 30.8.2007. Verification obtained by the complainant is not signed by the DTO himself. No accident had taken place with truck No. HR-38-F-2511. There was no intimation to them regarding deputing of spot surveyor nor spot surveyor was deputed by them. Intimation regarding accident was received only on 21.3.2007 and after that Sh. Subhash Madan was deputed to assess the loss and to collect the necessary documents. They deny that vehicle was totally damaged. Complainant had told the spot surveyor that he had taken the vehicle on Spurdari and the relevant documents are with the police/court. They deny that vehicle was shifted with the help of Crane since it was not in running condition. Vehicle was inspected by the surveyor on 21.3.2007 at Bathinda. Estimates if any were provided by the complainant himself. No assurance was given by the surveyor to settle the claim on total loss basis. No payment was required to be made for obtaining the estimates. Driving licence was found fake and as such, the claim is not payable as per terms and conditions of the policy. Claim is under process to repudiate it. It is further added by them that complainant is estopped from filing the complaint by his act and conduct. They deny remaining averments in the complaint.<br /> 3. In support of his allegations and averments in the complaint, complainant tendered into evidence affidavits (Ex.C.1 & Ex.C.16) of Sh. Baldev Kumar Mittal, his special power of attorney, photocopy of insurance certificate (Ex.C.2), photocopy of driving licence (Ex.C.3), photocopy of verification of driving licence (Ex.C.4), photocopy of FIR No. 42 (Ex.C.5), photocopy of estimate No. 1 dated 1.5.2007(Ex.C.6), photocopy of receipt (Ex.C.7), photocopies of letters (Ex.C.8 & Ex.C.9), photocopy of postal receipt (Ex.C.10), photocopy of reminder dated 3.5.2007 (Ex.C.11), photocopy of registration certificate of vehicle No. HR-62/0148 (Ex.C.12), photocopy of special power of attorney (Ex.C.13), photocopies of two pages regarding rule of IDV (Ex.C.14 & Ex.C.15), photocopy of survey report (Ex.C.17) and photocopy of interim survey report (Ex.C.18).<br /> 4. On behalf of the opposite parties, reliance has been placed on affidavit (Ex.R.1) of Sh. Subhash Chander Sharma, Divisional Manager, photocopy of policy (Ex.R.2), photocopy of motor claim form (Ex.R.3),photocopy of Consent/Acceptance letter (Ex.R.4), photocopy of survey report (Ex.R.5), photocopy of FIR (Ex.R.6), photocopy of letter regarding authenticity of driving licence (Ex.R.7), photocopy of driving licence of Gurjeet Singh (Ex.R.8) and photocopies of letters (Ex.R.9 & Ex.R.10).<br /> 5. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered the written arguments submitted by the complainant.<br /> 6. Opposite parties do not deny the factum of comprehensive insurance of vehicle Cargo 909 bearing registration No. HR-62-0148 for a sum of Rs. 2,15,000/- (IDV). Copy of the insurance certificate is Ex.C.2. They have admitted that this vehicle had met with an accident with truck. Intimation regarding the accident was given on 21.3.2007. Surveyor Subhash Madan was deputed to assess the loss. Photocopies of main documents were given to him (Surveyor). Claim has not been allowed.<br /> 7. Arguments pressed into service by the learned counsel for the complainant are that opposite parties have not issued policy with terms and conditions. Copy of the driving licence of driver Gurjeet Singh of Cargo 909 is Ex.C.3. According to it, number of his licence is 49225RE dated 8.12.2004. It was duly verified by the office of District Transport Officer, Ferozepur and copy of the verification report is Ex.C.4. In the copy of the verification report (Ex.R.9), licence number has not been mentioned and as such, this document is not relevant. Sh. Subhash Madan, Surveyor had obtained the signatures of Baldev Kumar Mittal, Special power of attorney of the complainant on consent/acceptance letter, copy of which is Ex.R.4 before making the final report Ex.C.17. This surveyor had made preliminary interim report dated 17.5.2007, copy of which is Ex.C.18. Under the instructions of opposite party No. 1, he has made final report, copy of which is Ex.C.17. Spot survey report of Shri Ram Bishnoi & Co., Hisar has not been produced, although it is in possession of opposite party No.1 and has been duly mentioned in the survey report, copy of which is Ex.C.17. It was a case of total loss of the vehicle as is clear from Ex.C.17. Opposite parties cannot wriggle out of the situation and deny the claim on the ground that driver of Cargo 909 was not holding valid and effective driving licence at the time of accident. He further submitted that opposite parties are liable to pay compensation of Rs. 2,15,000/- as per Insured's Declared Value alongwith interest @ 18% P.A, Rs. 6,000/- as towing charges and Rs. 5,000/- as estimated charges alongwith damages to the tune of Rs. 25,000/-. He also drew our attention to documents Ex.C.6 & Ex.C.7. Ex.C.6 is the copy of the estimated cost of repairs in respect of Cargo 909 from Imperial (A Unit of Star Vehicles Private Limited), Bathinda which assessed gross total as Rs. 4,15,185/-. Through receipt Ex.C.7 a sum of Rs. 5,000/- has been shown to have been paid for obtaining estimated charges. He further referred to Ex.C.17 to show towing charges paid as Rs. 6,000/- to M/s. Vishkarma J.C.B Contractors, Old Bus Stand, Bathinda. To support the submissions, reliance has been placed on the authorities Oriental Insurance Co. Ltd. Vs. Sher Singh Gill-III(2007)CPJ-52, National Insurance Company Vs. Surinder Kumar-III(2007)CPJ-57, New India Assurance Company Ltd. Vs. Dr. J.P Jain-II(2006)CPJ-92, New India Assurance Co. Ltd. Vs. Reena Rani Behera & Ors.-III(2007)CPJ-478(NC), Bant Singh Vs. New India Assurance Co. Ltd.-I(2001)CPJ-416 and Zile Singh Vs. Mukesh Kumar and others-2007(3)RCR(Civil)78.<br /> 8. Mr. Bansal, learned counsel for the opposite parties vociferously argued that it is not a case of third party claim. It is own damage claim. Evidence on the record proves that driving licence of Gurjeet Singh driver of Cargo 909 was fake. Since driver of this vehicle was not holding effective and valid licence at the time of accident, there is violation of the terms and conditions of the policy and complainant is not entitled to the relief prayed for.<br /> 9. We have considered the respective arguments. No-doubt, opposite parties have denied that surveyor was deputed for spot survey, yet this fact is proved from the final survey report, copy of which is Ex.C.17. In this document, Sh. Subhash Madan has made it clear that spot survey of Shri Ram Bishnoi & Co., Hisar was received on 23.4.2007 meaning thereby that spot survey was got conducted. It is a case of own damage and not a third party claim. Material question for determination is as to whether complainant has violated the terms and conditions of the insurance. Copy of the certificate of insurance reveals that any person including the insured was entitled to drive this vehicle Cargo 909 provided that person holds an effective driving licence at the time of accident. Now question is as to whether Gurjeet Singh was holding a valid driving licence on 21.2.2007 when this vehicle had met with an accident with the truck. According to the copy of the driving licence of Gurjeet Singh, driving licence number is 49225RE dated 8.12.2004. Its another identification number is 27602/F/97-98. Complainant is relying upon the verification report regarding driving licence of Gurjeet Singh and copy of the same is Ex.C.4. Application was moved to the District Transport Officer, Ferozepur for verifying licence No. 49225/R/04-05, whereas driving licence of Gurjeet Singh bears No. 49225RE dated 8.12.2004 and another number of this driving licence is 27602/F/97-98. Verification on the application was given regarding driving licence No. 49225/R/04-05 LA Ferozepur. It is not regarding driving licence No. 49225RE dated 8.12.2004. Verification, copy of which is Ex.C.4, is without any date. This verification given is not by the District Transport Officer, Ferozepur. It has been shown to have been given by some person for District Transport Officer. The affidavit of that person who gave the verification, copy of which is Ex.C.4, is not on the record to show his designation and authority to sign such document. Complainant did not get the record of District Transport Officer, Ferozepur produced to show that as per it driving licence of Gurjeet Singh is valid. Accordingly, no reliance can be placed on the verification report Ex.C.4. To the contrary, opposite parties got the authenticity of the driving licence verified through Sh. Sanjeev Narula, Surveyor and Loss Assessor from District Transport Officer, Ferozepur. An application was moved by him disclosing driving licence No. 27602/F/97-98 and another No. 49225RE dated 8.12.2004 concerning Gurjeet Singh. Particulars given in this application do tally with the particulars of licence of Gurjeet Singh, copies of which are Ex.C.3 & Ex.R.8 respectively. District Transport Officer, Ferozepur made report regarding authenticity of driving licence by way of writing letter to Sh. Sanjeev Narula, Surveyor & Loss Assessor by way of giving reference of his application dated 24.4.2007, copy of which is Ex.R.7. According to the letter of District Transport Officer, Ferozepur driving licence No. 27602/F/97-98 was issued in favour of Sh. Puran Chand S/o Sh. Krishan Kumar, R/o Patti Billa, District Ferozepur and not in favour of Sh. Gurjeet Singh S/o Sh. Darshan Singh, R/o Talwandi Bhai, District Ferozepur as per office record. Accordingly, Sh. Sanjeev Narula reported the matter to the Branch Manager of the opposite insurance company vide his letter dated 31.8.2007, copy of which is Ex.R.10, stating that the licence is fake. No-doubt, Ex.R.9 does not find mention number as 49225 RE, but this would assume no significance, particularly when particulars of the driving licence do not remain in dispute when Ex.R.7, Ex.R.8 and Ex.R.9 are read con-jointly. Accordingly, we hold that driving licence, copy of which is Ex.C.3, upon which the complainant is relying to be of Gurjeet Singh driver is fake as it was issued in favour of Puran Chand S/o Sh. Krishan Kumar, R/o Patti Billa, District Ferozepur and not in favour of Gurjeet Singh S/o Sh. Darshan Singh, R/o Talwandi Bhai, District Ferozepur. It is not the case of the complainant that driver was holding any other effective and valid driving licence at the time of accident. Hence, Gurjeet Singh was driving vehicle Cargo 909 without holding an effective driving licence at the time of accident. Rather, from the evidence, conclusion is that he was not holding driving licence at the time of accident. Accordingly, there is blatant violation of terms and conditions of the certificate of insurance on the part of the complainant.<br /> 10. Admittedly, it is a case of own damage claim. As per observations of their Lordships of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Laxmi Narain Dhut-2007(2)CLT-186, Swaran Singh's case 2004(3)SCC-297 has no application in own damage cases. Effect of fake licence has to be considered in the light of what has been stated in New India Assurance Co., Shimla Vs. Kamla and others-2001(4)SCC-342. It was held in Kamla's case (supra) as follows:-<br /> “12. As a point of law we have no manner of doubt that a fake licence cannot get its forgery outfit stripped off merely on account of some officer renewing the same with or without knowing it to be forged. Section 15 of the Act only empowers any Licensing Authority to “renew a driving licence issued under the provisions of this Act with effect from the date of its expiry”. No Licensing Authority has the power to renew a fake licence and, therefore a renewal if at all made cannot transform a fake licence as genuine. Any counterfeit document showing that it contains a purported order of a statutory authority would ever remain counterfeit albeit the fact that other persons including some statutory authorities would have acted on the document unwittingly on the assumption that it is genuine.”<br /> It was further observed by their Lordships of the Hon'ble Supreme Court in the case of Laxmi Narain Dhut (supra) that initially, burden is on the insurer to prove that the licence was a take one. Once it is established the natural consequences have to flow. The decision in Swaran Singh's case (supra) has no application to cases other than third party risks. Where originally licence was a fake one, renewal cannot cure the inherent fatality. In case of third party risks the insurer has to indemnify the amount and if so advised to recover the same from the insured. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Motor Vehicle Act. Authority which is applicable to the case in hand on all the fours is United India Insurance Co. Ltd. Vs. Davinder Singh-Civil Appeal No. 4883 of 2007 (Arising out of SLP (Civil) No. 1939 of 2007) decided on 12.10.2007. In that case (Davinder Singh's case), District Forum had found deficiency in service for not paying the amount of damages. Complaint was allowed. Appeal preferred against that order was dismissed by the Hon'ble State Commission. Revision before the Hon'ble National Commission had met with the same result. Appeal was preferred against the order of the Hon'ble National Commission by the united India insurance Co. Ltd. It was allowed by their Lordships of the Hon'ble Supreme Court in view of the position in Laxmi Narain Dhut (supra) by holding that the court below has committed an error in holding the appellant liable to indemnify the owner of the vehicle in regard to losses sustained by him. With utmost regard and humility to the authorities relied upon by the complainant, they are not applicable to the case in hand which is a case of claim of own damages in view of the authoritative pronouncements of their Lordships of Hon'ble Supreme Court in Laxmi Narain Dhut and Davinder Singh (supra). Since, complainant has violated the terms and conditions of the certificate of insurance, opposite parties are not liable to indemnify the complainant regarding the loss to the vehicle Cargo 909 sustained by him. Hence, deficiency in service on the part of the opposite parties is not proved. <br /> 11. In the result, complaint is devoid of merits and as such, it is dismissed with costs of Rs.1,000/-. Copy of this order be sent to the parties free of cost. File be consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 20.12.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br /> <br />