BEFORE THE DIST. CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                                                C.C.Case No.59 of 2012

Sri Bhagabat Sahoo, aged 54 years

S/o late Laxman Sahoo,

Resident of Bhuban Prusty Patana, Ward No.12,

PO/PS: Bhuban, Dist: Dhenkanal                                   …………….Complainant

                                                                Versus

The Branch Manager,

National Insurance Co. Ltd.,

Dhenkanal Branch Office,

At: Kunjakanta, South Madhuban,

PO/District: Dhenkanal-759001                                       …………….Opp. Party

Present: Sri Badal Bihari Pattanaik, President,

                 Miss Bijayalaxmi Satapathy, Member

Counsel: For the complainant:  Naba Kishore Guru & Associates

                  For the Opp. Party: S.P.Singh and Associates

Date of hearing argument: 16.1.2018

Date of order: 31.1.2018

                                                                                JUDGMENT

Sri Badal Bihari Pattanaik, President

                In the matter of an application U/s 12 of the Consumer Protection Act, 1986 filed by the complainant alleging deficiency in service on the part of the Opp. Party.

                1) Brief facts leading to the case of the complainant are that he is the registered owner of a Tipper bearing Registration Certificate No. OR-02-AF-7031 which was purchased by incurring loan from TATA MOTORS lTD in order to maintain his livelihood. The vehicle was insured with the Opp. Party on payment of the required premium vide Policy No.163801/31/14/6300003935 valid from 16.12.2010 to 15.12.2011.  During the validity period of the policy on 25.12.2010 at about 7.10 P.M the Tipper met with an accident with another Hyva Tipper bearing Registration No. AP-15-TA-5167 near Nakeiposi village turning as a result of which the Tipper of the complainant was severely damaged.  The complainant immediately lodged a claim with the Opp. Party on 26.12.2010  to indemnify the damage caused to the Tipper .  As per the instruction of the Opp. Party the complainant on 15.2.2011 submitted the claim form along with required documents  for indemnification of a sum of Rs. 4,25,000/-.  But the Opp. Party instead of  settling the claim vide his letter bearing No.163801/Mot.Cl/1205/2012 dated 23.3.2012 intimated the complainant that the earlier driving license of the driver namely Anirudha Thatoi issued by the Licensing Authority, Raipur was found to be fake one and further asked the petitioner to clarify the position.  The complainant thereafter visited the office of the Opp. Party and clarified that even if the driving license issued by the Licensing Authority, Raipur was found to be a fake one, the driving License of the driver Anirudha Thatoi has been renewed by the Licensing Authority, Chandikhol from time to time and as such the Opp. Party is liable to indemnify the loss.  Despite all the efforts of the complainant the Opp. Party refused to settle and entertain the claim of the complainant.  The complainant is a consumer under the C.P. Act and the cause of action for filing of the dispute arose on 23.3.2012.  As the just and genuine claim of the complainant was not settled it amounts to deficiency in service and finding no other alternative, the complainant has come up before this Forum seeking for a direction to the Opp. Party to indemnify the loss of Rs. 4,25,000/- sustained by the complainant due to the accident along with interest @ 12% per annum from the date of accident i.e. 25.12.2010 till payment.  Besides, the complainant claims compensation of Rs. 2,00,000/-.

                2)  The Opp. Party appeared and filed written version.  It is in the version of the Opp. Party that the case is not maintainable and there is no cause of action to file the present case.  This Forum lacks territorial jurisdiction to adjudicate upon the case as the cause of action or no part of the cause of action arose within the territorial jurisdiction of this Forum.  The matter relates to rejection of the claim with reasons for which the matter needs to be adjudicated by the Civil Court.  It is admitted that the complainant lodged the claim before the Opp. Party on 11.3.2011 in the prescribed claim form and the date of accident was on 25.12.2010.  On proper scrutiny of the documents it was revealed that the driver Anirudha Thatoi driving the vehicle was holding a fake driving license for which the claim of the complainant was rejected. It is also denied that the vehicle has sustained a loss of Rs. 4,25,000/- as the qualified and licensed surveyor has quantified the loss to be Rs. 68,970/- after all deductions. . The complainant is not a consumer as this vehicle is not the only source of income of the complainant but the complainant is having other source

of income from agriculture and other allied business and the complainant does not earn his livelihood by way of self-employment from this vehicle.  The vehicle is exclusively used for commercial purpose and is driven by a paid driver.  It is further stated that the vehicle met with the accident near village Nakaikosi in the District of Angul and the repairing was done at Angul. The cause of rejection of the claim relating to the claim is the driving license of the driver which has been originally issued from Raipur and subsequently renewed from Chandikhol for which there is no part of the cause of action within the territorial jurisdiction of this Forum.  There is no cause of action at all to file the present dispute before this Forum.  It is further averred that after receipt of all the relevant documents from the complainant the Opp. Party appointed one investigator namely Mohd Ibrahim  who after proper verification of the documents reported that the driving license of the driver Anirudha Thatoi bearing Original D.L. No.40091/95 issued by Licensing Authority Raipur is a fake one and has not been issued from their office.  It is also averred that the damage cause to the vehicle the complainant submitted an estimated claim of Rs. 4,25,000/- initially.  Subsequently after completion of the repairs the complainant has submitted bills and money receipts for Rs. 1,87,619.50 and the Surveyor has assessed the loss for Rs. 75,000/-.  After considering depreciation, salvage and Policy excess the net loss was assessed for Rs. 68,970/-.  Therefore, the claim of the complainant that he has sustained damage to the extent of Rs. 4,25,000/- is false and denied.  There is no deficiency in service as the Opp. Party has rejected the claim of the complainant after due application of mind.  Accordingly, it is pleaded to dismiss the complaint with cost of Rs. 10,000/-.  The contents of the petition are supported by affidavit.

3)           On the aforesaid pleadings of the respective parties the following issues are framed for determination.

                1) Whether the complainant is a consumer?

                2) Whether there is cause of action?

                3) Whether this Forum lacks territorial jurisdiction?

              4) Whether the Opp. Party is in deficiency in service?

                5) To what relief, if any, the complainant is entitled?

4) Issue No. 1 to 3

              Since all the above three issues are very much linked up with each other those are taken up jointly for discussion and findings.  The learned advocate appearing on behalf of the Opp. Party vehemently urged before us that the complainant is not a consumer as he has not purchased any goods nor he has hired the services of the Opp. Parties.  The vehicle is exclusively used for commercial purpose and was driven by a paid driver.  Therefore, the complainant is not a consumer.  Further he argued before us that there is no cause of action to file the present case.  Besides, it is further argued that this Forum lacks territorial jurisdiction to adjudicate upon the dispute as the matter relates to rejection of the claim with reasons for which the matter needs to be adjudicated by the Civil Court.   The cause of rejection of the claim relating to the claim is the driving license of the driver which has been originally issued from Raipur and subsequently renewed from Chandikhol for which there is no part of the cause of action within the territorial jurisdiction of this forum. On the other hand the learned counsel appearing on behalf of the complainant argued before us that he is the sole owner of the vehicle in question which was purchased by him in order to maintain his livelihood.  Admittedly the vehicle bearing Regd. No. OR-02-AF-7031 was insured with the Opp. Party on payment of the required premium vide policy No.163801/31/14/6300003935 valid from 16.12.2010 to 15.12.2011.  There is no disputed that the accident occurred during the validity period of the policy i.e. on 25.12.2010.   The learned advocate for the complainant submitted before us that since the complainant has insured the vehicle on payment of consideration and thereby hired the services of the Opp. Party and thus the complainant is a consumer who has purchased the vehicle for earning his livelihood.  Further there is sufficient cause of action for filing of the present case as the very cause of action for filing of the claim is rejection of the claim and there is deficiency in service on the part of the Opp. Party.  Further it is argued before us that the Opp. Party resides within the territorial jurisdiction of this Forum for which the present case is having territorial jurisdiction for adjudication.   Now taking into consideration of the factual aspects and the submissions of the learned advocates for both the parties we find that there is some force on the submission of the learned counsel for the complainant as the complainant has paid the premium for the insurance policy and hired the services of the Opp. Party.  Therefore, the complainant is a consumer.  Even if the complainant has engaged a driver to drive his vehicle but that cannot be treated that the complainant has used the said vehicle for commercial purpose.  Contract of insurance is a contract of Indemnity. There is no question of commercial purpose in obtaining Insurance coverage.  The Opp. Party has also failed to prove that the complainant has any other business and the said vehicle is not the only source of income of the complainant.  Hence in our opinion the complainant is a consumer.  To this effect we are fortified by a decision of Hon’ble National Commission in the case of  Assish Biswakarma  versus National Insurance Company Limited and others reported in 2012 (2) CPJ-169. Further when the complainant has specifically pleaded that he has purchased the vehicle for his livelihood and the Opp. Party residing within the territorial jurisdiction of this Forum the argument advanced by the learned counsel on behalf of the Opp. Party is not acceptable. Since the complainant has hired the services of the Opp. Party alleged that there is deficiency in service and the Opp. Party resides within the territorial jurisdiction of this Forum, we are of the view that there is cause of action for filing of the present case and this Forum is having territorial jurisdiction to adjudicate upon the dispute.  Accordingly, all the three issues are answered in affirmative and in favour of the complainant.

5) Issue No. 4

             This issue is the pivotal issue on whose finding the decision of the case rests.  On our perusal of the pleadings of the respective parties mentioned in the preceding paragraphs we find that virtually the claim of the complainant has been admitted by the Opp. Party as regards to the Insurance Policy for the vehicle, date of accident during the period of validity of the insurance policy and loss caused to the vehicle due to the accident.  But the only dispute is that the Opp. Party has rejected the claim of the complainant as the Driver Anirudha Thatoi who was driving the vehicle holding a fake driving license for which the claim of the complainant was rejected.  This is the only reason for rejection of the claim of the complainant.  The learned advocate appearing on behalf of the Opp. Party pleaded and argued before us that   at the relevant time of accident the driver Mr. Anirudha Thatoi  was having no valid driving license and as per the provisions of the law the claim of the complainant was rejected which cannot be termed as deficiency in service.  The investigator namely Mohd Ibrahim who after proper verification of the documents reported the O.P that the driving license of the driver Anirudha Thatoi bearing original D.L. No.40091/95 issued by Licensing Authority Raipur is a fake one and has not been issued from their office and the intimation issued by the Licensing Authority Raipur to the investigator is enclosed with this show cause as Annexure-I.   On our verification we find the documents as stated by the O.P as regards to the report of the Surveyor and the letter of the Licensing Authority Raipur issued to the Investigator to that effect.  But the Opp. Party has not filed affidavit of the said Investigator or also not filed the certified copy of the D.L. No. 40091/95 issued by the Licensing Authority, Raipur to show that in which favour the said license has been issued.    Further on our perusal of the record we find that despite several letters to the Licensing Authority Raipur no reply was received by this Forum as regards to the authenticity of the D.L. in question. When this Forum asked the licensing Authority Raipur to produce the D.L. No. 40091/95 non-production of the same by the said authority or no reply to that effect by him creates a doubt regarding the letter of licensing authority of Raipur issued to the Investigator of the Opp. Party.    The R,T.O, Chandikhol in his letter dated 21.12.2016 in response to our letter intimated that  the License was valid throughout  the period except from dated 3.8.2013 to 24.10.2014.  On the other hand the learned counsel for the complainant argued before us that    while engaging the driver the complainant has verified the license of the Driver and found the driving license was genuine and   satisfied himself by seeing the license of the driver and the way the driver driving the vehicle.  The complainant in his affidavit  dated 19.1.2015 has categorically  stated that  before giving engagement to Anirudha Thatoi he has enquired about his experience, dealings and etc  from one Surendra Kumar Guru of his village who was also owner of one Commercial vehicle and accordingly to his advice he has engaged Anirudha Thatoi to drive his vehicle.  Prior to give him the Tipper for driving the complainant has verified his Driving License which was issued by R.T.O. Chandikhol and subsequently renewed by the competent authority. The face of the license there was nothing to doubt the same document and after verification of the D.L of Anirudha Thatoi the complainant also tested his driving ability and found that the driver was expert in driving the  Transport vehicle.  From the records and after inquiry and being satisfied the complainant has engaged Anirudha Thatoi to drive the vehicle.  There is no counter affidavit filed by the Opp. Party. Section-5 of the Motor Vehicle Act, 1988 speaks “no owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the section 3 or section 4 to drive the vehicle.  So the responsibility of the owner is limited and he has to verify whether the driver has a driving license and whether the driver is not under the age of 18 years.  As such in this case the owner- complainant has discharged his duty while engaging the driver as the D.L submitted by his driver looks to be a genuine one which was renewed from time to time by the competent authority.  As per sub-section 6 of section 15 of Orissa Motor Vehicle Act-1988 the where authority renewing the driving license is not the authority which issued the driving license it shall intimate the fact of  renewal to the authority which issued the driving license.   Further the Opp. Party failed to prove by adducing any evidence that the complainant has engaged the Driver Anirudha Thatoi knowing fully that he was having a fake Driving License. Therefore, the complainant has taken due care and caution while engaging the driver.    Hence rejection of the claim on the sole ground that the diver was having a fake driving license is not justified and tenable under law.  In this regard we are fortified by a decision of the  National Consumer Disputes Redressal Commission, New Delhi reported in CTJ page 247   (C.P) -2005 in case of National Insurance Co. Ltd, Vrs. Sant Ku. Goyal wherein it has been held by their Lordship that “If a driving license on the face of it looks genuine, the owner of the vehicle is not expected to find out whether the license has in fact been issued by a competent authority or not”.  In another decision reported in 2005 CTJ (CP)  in case of New India Assurance Company Ltd, versus Kishan Bhai   the National Commission also have also held that “If the owner of a vehicle Prima facie satisfies himself by seeing the license of a driver and the way the driver drives the vehicle, that may be sufficient care on his part excepting in a circumstance where the driver is ineligible to his knowledge or where he did not have any license or where the license had expired.   Further we are fortified by another decision of the State Consumer Disputes Redressal Commission, Chhatisgarh  in the case of Oriental Insurance Company Ltd, vrs. Sher Singh Gill reported in 2007 (3) CPJ page -52 the facts of the present case are quite akin to the said decision.  In another decision of   reported in 2011 (I) CPJ  page 96 in the case of New India Assurance Company Ltd, vrs. Baldev Singh.  After taking into consideration of the pleadings of the parties and the arguments advanced by both the learned counsel for the respective parties and more particularly after taking into consideration of the decisions of the Hon’ble National Commission as referred to above, we are of the view that the rejection of the claim of the complainant on the ground of fake driving license holding by the driver Anirudha Thatoi is not justified and tenable under law and the Opp. Party is liable to indemnify the loss.   Rejection of the claim of the complainant on the ground as stated by the Opp. Party amounts to deficiency in service. 

6) Issue No.5

             After accident the complainant submitted claim  form along with required documents for indemnification for a sum of Rs. 4,25,000/- .  It is admitted that the complainant has submitted an estimated claim of Rs. 4,25,000/- initially.  It is further admitted that subsequently after completion of the repairs the complainant has submitted bills and money receipts for Rs. 1,87,619.50 and the surveyor has assessed the loss for Rs. 75,000/-.  After considering depreciation, salvage and Policy excess the net loss was assessed for Rs. 68,970/-The complainant in his affidavit did not raise any objection to this submission of the Opp. Party.  It is in the affidavit of the complainant that he took steps to repair the vehicle and on 15.2.2011  he has submitted  all the necessary documents claiming a sum of Rs. 4,25,000/- which he has spent for repair of the vehicle.  The  O.P conducted an inquiry through his agent in absence of the petitioner and on the basis of the Surveyor report the loss sustained by the complainant for repair of the vehicle is about Rs. 75,000/-.  However the O.P even did not pay the aforesaid amount of Rs. 75,000/- on the sole ground that the driver was having a fake D.L.  From this averments in the affidavit it is observed that the complainant has not challenged the quantum arrived at by the Surveyor and also does not dispute the net loss of Rs. 68,970/-.  Therefore, in our opinion the complainant is entitled to get the loss of Rs. 68,970/- as has been assessed by the Surveyor which is binding.   Accordingly, the complainant is entitled to get relief.  Hence ordered.

                                                                                ORDER

                The complaint is allowed on contest in the light of the observations made in the preceding paragraphs.  The Opp. Party is directed to pay a sum of Rs. 68,970/- (Rupees sixty eight thousand nine hundred seventy) only along with interest @ 9% per annum from the date of filing of the case 30.4.2012 till payment.  Besides, the Opp. Party is directed to pay cost of the litigation of Rs. 2,000/- (Rupees two thousand) only.  The compliance of the directions shall be made within a period of one month from the date of receipt of this order.

          (Miss Bijayalaxmi Satapathy)                                      (Badal Bihari Pattanaik)

                     Member                                                                           President