Complaint No: 06 of 2019.

       Date of Institution: 10.01.2019.

               Date of order: 22.08.2023.

Shamsher Singh S/o Darshan Lal R/o House No. 96/6, Ward No.2, Mohalla Chander Nagar, Batala Tehsil Batala, District Gurdaspur. Pin 143505.

                                                     …...Complainant.                                        

                                                VERSUS

1.       Tata AIG General Insurance Company Ltd., Burj Punjab, SCO -9, 2nd Floor, District Shopping Complex, Ranjit Avenue, Amritsar-143001, through its Branch Manager.

2.       Tata AIG General Insurance Company Ltd. 3rd Floor, Shanti Tower, SCO-37 PUDA Complex, Opp. Tehsil Complex, Jalandhar City, Jalandhar-144001, through its Branch Manager.

                                                                                                                                                      ….Opposite parties.

                                                              Complaint U/s 12 of The Consumer Protection Act.

Present: For the complainant: Sh.Munishwar Nagpal, Advocate.

    For the opposite parties: Sh.Sandeep Ohri, Advocate.  

Quorum: Sh.Lalit Mohan Dogra President, Sh.Bhagwan

                 Singh Matharu, Member.  

ORDER

Lalit Mohan Dogra, President.   

          Complainant Shamsher Singh had filed the present complaint U/s 12 of the Consumer Protection Act against the opposite parties and praying that the directions may kindly be issued to the opposite parties to pay Rs.1,47,967/- as the repair cost and Rs.47,252/- which were paid to PSPC Ltd. for the loss suffered by them, thus the total amount of Rs.1,95,219/- alongwith interest @ 18% P.A. from the date of accident till its actual realization to the complainant by accepting his complaint with heavy costs and opposite parties may also be burdened with Rs.50,000/- as litigation expenses including Rs.1,00,000/- as compensation for physical harassment and mental agony to the complainant and any other relief which this Hon'ble Forum/Commission may deems fit, be passed in favour of the complainant and against the opposite parties, in the interest of justice and fairplay.

2.       The case of the complainant in brief is that he was the registered owner of Mahindra Plus Bolero (Maxi Truck) Model 2017 bearing registration No.PB-06-AK-0757and for this vehicle a Debt Cab Comprehensive Policy (Commercial Vehicle Package Policy) bearing No.0158364252 which was valid from 31.05.2018 to 30.05.2019 was purchased by him from the opposite parties for an IDV value of Rs.5,50,000/- and paid the premium of Rs.18,307/- through their agent Jayesh Khurana having code No.8269125.

3.       It was pleaded that on 20.06.2018 above said vehicle of the complainant was struck against the electricity poles of PSPC Ltd. at night on Sangalpura Road, Gurdaspur and due to this struck/accident poles and other material fitted on it damaged and compromise was also effected between Deepak Kumar on behalf of complainant and PSPC Ltd. to this effect by paying an amount of Rs.47,252/- as compensation for the loss suffered by the PSPC Ltd.  It was further stated that opposite parties were immediately informed by the complainant who appointed their surveyor Mr.Vikas Mahajan to access the own damage loss of above said vehicle and there was no third party loss as the vehicle was total loss. All the required formalities were fulfilled by the complainant by submitting all the documents including driving licence of Jagjeewanjot Singh who was the driver the vehicle at the time of accident to the surveyor of the opposite parties and also submitted estimate to the tune of Rs.4,50,000/- to the opposite parties. It was also pleaded that complainant approached the opposite parties to settle his genuine claim but the opposite parties put off the matter on one pretext or the other and lastly they verified the driving licence of the above named driver from the RTA Gurdaspur who gave in writing to the opposite parties that driving licence bearing No.PB-0620130861987 is false and ingenuine, rather, before appointing Jagjeewajot Singh as driver of the said vehicle complainant checked his driving licence and found him fully competent to drive the vehicle but he did not verify his licence from the issuing authority and was not having knowledge that complainant was not having genuine driving licence whereas he was aware that the licence is issued on the address given in the driving licence. It was next pleaded that complainant was informed by the opposite parties to this effect vide their letter i.e. reminder letter-2 dated 13.08.2018 and sought clarification regarding licence of the driver and also repudiated the genuine claim of the complainant. Complainant got repaired the above said vehicle from the authorized agency i.e. from J.S. Grover Autos Pvt. Ltd. Dalhousie Road, Mamoon Chowk, Pathankot after receiving the letter No.1 from the opposite parties and spent Rs.1,46,747.00 + Rs.1220/- for the repair of the same. But, opposite parties failed to settle the genuine claim of the complainant as per IRDA instructions and this act of the opposite parties is unfair trade practice and clear cut deficiency in service on their part due to which complainant suffered great loss, mental agony and physical harassment at the hands of the opposite parties, hence this complaint.

4.       Upon notice opposite parties appeared through their counsel and filed their written reply by taking the preliminary objections that the complainant has no cause of action and locus standi to file the present complaint, that the insurance is a contract between the two parties and both the parties are bound with the terms and conditions of the policy and as per terms and conditions of the policy, the driver must possess valid and effective driving licence and in the present case the driving licence of the driver Mr.Jagjiwanjot Singh was sent to the District Transport Officer/Regional Transport Authority, Gurdaspur for verification and as per their report the same was found to be un-genuine/incorrect and as such driver was not having valid and effective driving licence due to which claim was repudiated, as there is material breach of the terms and conditions of the policy and as such there is no liability of the insurance company, that if Ld. Forum/Commission comes to the conclusion that there is any liability of the insurance company then it is only as loss assessed by independent IRDAI licensed surveyor, Vikas Mahajan who inspected the vehicle and assessed the loss to the tune of Rs.106931.44. On merits, it was stated that if there is any liability of the insurance company then the same is only as per the terms and conditions of the policy and accident took place due to the fault of the driver as he was not having any valid driving licence as the same was found fake and strict action is required to be taken against such persons who are playing with the life of other persons/public on the road, there is also need to take strict action against the owners/complainant of the vehicle who allowed such person to drive the vehicle and complainant is also required to put strict proof regarding any payment to PSPC Ltd. It was further stated that Mr.Vikas Mahajan who was appointed as surveyor inspected the vehicle and submitted his report on 25.07.2018 and per his report insurance company is liable to pay Rs.106931.44P. Complainant submitted the driving licence of Jagjiwanjot Singh which was found take to the surveyor who is a qualified person to assess the loss and duly licensed by IRDA. It was also stated that it is the duty of the complainant to allow only the person to whom the driving licence issued by appropriate authority as per provisions of Motor Vehicle Act but he played with the life of the other persons by allowing such person to drive the vehicle who was not having valid driving licence or skill. It was next stated that complainant failed to submit the valid driving licence inspite of repeated requests and violated the conditions of the policy and provisions of MV Act. All other averments made in the complaint have been specifically denied and prayed for dismissal of the complaint.

5.       Counsel for the complainant to prove the case had filed affidavit of complainant Ex.CW1 alongwith copies of documents Ex.C1 to Ex.C6.

6.       On the other hand counsel for the opposite parties had filed affidavit of Rohit Udaiwal Associate Vice President and Authorized Signatory Ex.OP-1,2/1/A with copies of documents Ex.OP-1,2/1 to Ex.OP-1,2/12.

7.       Rejoinder filed by the complainant.

8.       Counsel for the complainant has argued that complainant had purchased a Debt Cab Comprehensive Policy (Commercial Vehicle Package Policy) for his vehicle with DV value of Rs.5,50,000/-. It is further argued that on 20.06.2018 vehicle of the complainant met with an accident and intimation of loss was given to the opposite parties insurance company. The claim lodged by the complainant was repudiated by the opposite parties on the ground that driver of the complainant was having fake licence at the time of accident. It is further argued by the counsel for the complainant that opposite parties cannot repudiate the claim of the complainant on ground of fake licence as there is no fault of the complainant as while employing the said driver, the complainant had personally verified his driving licence which looked to be genuine and had been watching the driver while driving the vehicle properly by following rules and regulations and if later on driving licence has been found to be fake in that case insurance company cannot repudiate the genuine claim regarding loss to vehicle.

9.       On the other hand counsel for the opposite parties has argued that policy of insurance relating to accidental loss is admitted. However, the licence of the driver of Jagjiwanjot Singh was found to be false and ungenuine. Meaning thereby that driver who was driving the vehicle at the time of accident was not having valid and factual driving licence. The claim of the complainant was repudiated due to breach of terms and conditions of the policy. As such there is no deficiency in service on the part of the opposite parties.

10.     We have heard the Ld. Counsels for the parties and gone through the record.

11.     It is admitted fact that vehicle owned by the complainant bearing No. PB-06-AK-0757 was insured with the opposite parties insurance company vide policy of insurance. It is further admitted fact that on 20.06.2018 during the validity of policy of insurance the vehicle owned by the complainant met with an accident. It is further admitted fact that Jagjiwanjot Singh was driving the said vehicle at the time of accident. It is further admitted fact that on verification the licence of driver was found to be fake. It is further admitted fact that the claim lodged by the complainant has been repudiated by the insurance company on the ground of breach of terms and conditions of the policy due to fake driving licence.  The only question for adjudication before this Commission is whether the complainant is entitled to receive compensation regarding loss to the vehicle inspite of the fact that driving licence of the driver has been found to be fake. To prove his case complainant had placed on record his duly sworn affidavit. As per affidavit dated 15.01.2019 it has been mentioned by the complainant that before employing  Jagjiwanjot Singh as driver, the complainant had checked his driving ability and found him fully competent to drive the vehicle and driver drove the vehicle to the satisfaction of the deponent. It is further stated that complainant had seen the driving licence but had not verified the same from issuing authority. We have also gone through the copy of driving license Ex.OP-2 and if the said licence is seen and inspected by any normal person, the same seems to be genuine having been issued validly by competent licensing authority. As such this Commission is of the view that since the complainant employed Jagjiwanjot Singh as driver and it has been proved on record that the complainant had duly checked the driving abilities of said Jagjiwanjot Singh and physically verified the driving license which seems to be genuine. As such we are of the view that what is expected from a prudent owner of the vehicle has been done by the complainant. As such we do not find any fault on the part of the complainant/owner of vehicle for having employed Jagjiwanjot Singh as driver. We have further relied upon the judgment of Hon'ble Supreme Court of India in Civil Appeal No.1999-2000 of 2020 titled as Nirmala Kothari. Vs. United India Insurance Co. Ltd. wherein it was held by the Hon'ble Supreme Court of India as under;-

            "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 fact 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 breach of Section 149(2)(a)(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".

             "In view of the above facts and circumstances, the impugned judgment is not liable to be sustained and is hereby set aside.        The appeals accordingly stand allowed. The respondent/Insurance Company is held liable to indemnify the appellant".

          In another judgment of Hon'ble Supreme Court of India reported in 2014(1) CLT titled as Pepsu Road Transport Corporation. Vs. National Insurance Company wherein it was held by Hon'ble Supreme Court of India as under;-

          "Motor Vehicles Act, 1988, Section 149(2)(a)(ii)-Driving licence-if licence possessed by the driver was a fake one, whether there is liability on the insurer ? -Held-when owner of  vehicle 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- 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 forcompensation. (Para 8)".

12.     In above referred both the judgments of the Hon'ble Supreme Court of India, it is very clearly held that if the owner of the vehicle proves this fact that he had examined the driving skills of the driver before giving employment and had physically verified the licence and in such like cases nothing more can be expected from such a registered owner of the vehicle and it cannot be expected from the owner to visit one office after other to verify the credentials of driving licence of his driver. As such we have also put reliance upon the said judgments and in the present case complainant fully proved that he had physically examined the licence and checked the driving skills of the driver. As such no fault can be attributed to the complainant/owner of the vehicle. As far as quantum of compensation is concerned, the complainant had made prayer for amount i.e. Rs.1,47,967/- i.e. the cost of repair and Rs.47,252/- paid to the PSPC Ltd. for loss suffered by the PSPC Ltd.. However, we are of the view that although the complainant had proved his genuine intention while employing the driver but this fact could not be ignored that driver of the vehicle was not having the valid licence. As such the insurance company is directed to pay 85% amount out of the total amount assessed by the surveyor on non standard basis i.e. 85% of Rs.1,06,931.44/-. Plea of the complainant for payment of full amount is rejected as the complainant had not challenged the report of the surveyor and we are also gone through the report of the surveyor Ex.OP-1,2/6 and we do not find any ambiguity to ignore the same. The counsel for the complainant has also prayed that amount of Rs.47,252/- paid by the complainant to the PSPC Ltd. is also liable to be reimbursed by the opposite parties. However, this Commission has no reason to agree with the said contention. The compromise Ex.C-3 and receipt Ex.C-2 has been executed and issued in the absence of opposite parties and without their consent, as such opposite parties cannot be held liable to pay amount of Rs.47,252/- allegedly paid by the complainant to the PSPC Ltd.

13.     From the evidence on record in the shape of affidavit of complainant which has not been rebutted by the opposite parties it has been duly proved that before employing the said driver Jagjiwanjot Singh, the complainant had duly checked the driving ability of the said driver and physically checked the licence. As such complainant had completed his part while employing the said driver of the vehicle. As such the act of the opposite parties of having repudiating the claim on the ground of breach of policy's conditions due to fake driving licence amounts to deficiency in service. Accordingly, present complaint is partly allowed and opposite party insurance company is liable to pay 85% of the amount of Rs.1,06,931.44P as assessed by the surveyor Mr.Vikas Mahajan vide report Ex.OP-1,2/6 alongwith interest @ 9% P.A. w.e.f. 25.07.2018, the date of report of surveyor till realization on non standard basis. Opposite parties are further directed to pay Rs.5,000/- to the complainant as compensation on account of mental tension, harassment and cost of litigation.

14.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

15.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.                                                                                                           

                                        (Lalit Mohan Dogra)

                                                                              President

 Announced:                                                    (B.S.Matharu)

Aug. 22, 2023*YP*                                              Member