SMT. BANDANA ROY, PRESIDENT
The short facts of the case is that the complainant is the registered owner of the Vehicle Being No. WB 29-B/0643. He took an insurance policy from the OP for the said vehicle effective from 190.12017 to Midnight of 18.01.2018 with LDV of Rs. 10,80,000/- being policy No. 0317003116P113833473. The said vehicle meet an accident oin 16.02.2017 at about 300 PM and it got damaged badly and HP coastal PS Case No. 21/2017 dated 17.02.2017under district South 24 Parganas was started U/Sec. 279/304 IPC. Immediately the incident was informed to the OP. The vehicle was driven by the licensed driver at that point of time. The complainant got the said vehicle repaired at a cost of Rs 2,15,000/-. The complainant served copy of the bill and other papers to the surveyor of the Co. and demanded the said amount from the OP but the OP repudiated the claim by letter dated 26.03.2018.
Hence the complainant has filed the instant complaint with a prayer for a direction upon the OP to pay the complainant the amount of Rs. 2,15,000/- and other reliefs.
The OP United India Insurance Co. contested the case by filing written version and prayed for dismissal of the claim application.
The specific averment of the written version is that the license of the driver of the vehicle in question was fake and according to the terms and conditions of the policy the Co. is not liable to pay any insurance amount if the insured vehicle is run by a driver having no valid license for the time being in force. The Co. enquired from the MV Department Burdwan regarding the license of the driver but it was learnt that the said license was fake one.
On the basis of the above pleadings of all the parties, the points require discussion are whether the case is maintainable and whether the complainant is entitled to get the reliefs as prayed for.
Decision with reasons
Both the points are taken up together for consideration for the sake of convenience.
We have carefully perused the affidavit of the complainant, the written version of the OPs and all the documents filed by both the parties, written argument filed on behalf of the OP and heard the argument advanced by both the parties Considered.
Admittedly the OP issued the insurance policy in favour of the complainant with regard to the vehicle in question subject to certain terms and conditions. The only defence of the OP is that at the time of the alleged accident the D L of the driver of the vehicle was not valid as during inquiry from the concerned M V Department at Bardwan the OP learnt that there is no such D L No in the concerned Register. The vehicle was driven by the driver whose license was take one who was driving the vehicle violating the MV Act and Rules 1988. The OP also alleged that in the policy issued in favour of the complainant there is no liability of the insurance where the insured vehicle was driven by a person having no valid license.
Ld Advocate for the OP also argued that in the reply of the cross-examination the complainant stated that he informed the incident by phone but no documentary proof has been submitted by the complainant. It is also further argued by the Ld advocate for the OP that the claimant did not verify the DL from concerned licensing authority of MV Departmet regarding validity of the licence of the driver he appointed. The ld advocate further submitted that on the aforesaid grounds the complainant is not entitled to any relief in this case.
We have carefully gone through the materials in the record.
Ld advocate for the complainant in answer to the defense of the OP was pleased to refer a decision reported in 2013 (4) CPR 604 (SC) wherein it has been held that Insurance Co. cannot be permitted to avoid its liability only on the ground that the person driving the vehicle at the time of the incident was not duly licensed.
It may be mentioned that OP did not file any report of the Burdwan MV Department showing that the license of the driver in question was fake one. In United India Insurance Co, Ltd. Vs. Lehru and others, (2003)3 SCC 338 a two Judge Bench of this Court has taken the view that the Insurance Company cannot be permitted to avoid its liability only on the ground that the person driving the vehicle at the time of accident was not duly licensed It was further held that the willful breach of the conditions should be established. Still further it was held that it was not expected of the employer to verify the genuineness of a driving license from the issuing authority at the time of employment. The employer need to only know the capacity of the driver and if after such he is appointed there can not be any ability on the employer. The situation would be different when the employer was told that the driving license of its employee is fake or false and yet the employer not taking appropriate action to get the same verified from the issuing authority.
From the above decision it is clear that the owner of the vehicle can under no situation has any duty to make any inquiry in this respect and in individual case it will be considered whether the verification was necessary by the employer.
In 2007(3) SCC at page 700, it was explained that “ Mere defense of fake or invalid license or disqualification of the driver driving at the material time are not in themselves defenses available to the insurer against either the insured or the third parties. To avoid its liability towards the insured the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of the vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time”
The Ld advocate for the Complainant also referred another decision reported in 2014(3)CPR 555 (NC) wherein it was held that Insurance Co. is liable to indemnity owner of vehicle assuming that there was breach of condition of insurance policy, in which event claim ought to be settled on non-standard basis.
Considering all the above referred decisions we find in the instant case the OP failed to prove that the complainant had negligence in verifying the license of its driver. Admittedly OP issued the policy in favour of the complainant in respect of the vehicle in question and the Op did not challenge the repairing bill amounting to Rs. 2,15,000/-, according to the complaint.
The complainant has filed a copy of bill estimate of Maa Kali Workshop showing repairing cost of the vehicle. When the OP has admitted the alleged accident of the vehicle and the complainant has filed copy of search and seizure in connection with the P S Case No. 21 of 2017 dated 17.02.17 U/Sec 279/304 IPC it is well established that on the very date the accident took place.
Considering the materials on record we are of the considered view that the complainant is entitled to get the repairing cost of Rs. 2,15,000/- as prayed from the OP Insurance Co. but he is not entitled to get any compensation as prayed for as the complainant failed to prove that the DL of the driver he appointed at the time of the accident was not fake.
Both the points are answered accordingly.
Hence, it is
O R D E R E D
That CC/168 of 2018 be and the same is allowed on contest in part against the OP.
The OP Insurance Co is directed to pay a sum of Rs 2,15,000/- against the insurance policy of the complainant and a further sum of Rs. 2000/- as litigation cost within one month from the date of this order, failing the OP shall be liable to pay interest @ 10% per annum on the awarded amount till full and final satisfaction of the same.
Let copy of the judgment be supplied to all the parties free of cost.
