BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri K.V.H.Prasad, President
And
Smt.C.Preethi, Member
Tuesday the 6th day of March, 2007
C.C. No.101/2006
K. Ramesh Gupta, S/o. K.Sreenivasulu,
C/o. Mangala Goods Transpoprt,Opp: police Station, Yemmiganur,Kurnool District. …Complainant
-Vs-
The Divisional Manager,
M/s. Oriental Insurance Company Limited,Kurnool. …Opposite party
This complaint coming on this day for orders in the presence of Sri. S. Sivaramakrishna Prasad, Advocate, Kurnool for complainant, and Sri.
Y.Jayaraju, Advocate, Kurnool for opposite Party and stood over for consideration till this day, the Forum made the following:-
ORDER
(As per Smt. C. Preethi, Member)
1. This consumer complaint of the complainant is filed U/S 12 of C.P. Act., 1986 seeking a direction on opposite party to pay Rs.2,27,360/- with 18% interest per annum, Rs.50,000/- mental agony, costs of the complaint and any other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the complainant’s case is that the complainant is the owner of the lorry bearing No.AP 21 T 3688 and the said lorry was insured with opposite party under policy bearing No.753/2005, On 20-05-05 the said lorry met with accident in collution with an A.P.S.R.T.C. bus and the driver and the said lorry died on the spot and the lorry was extensively damaged. Immediately, the complainant informed about the accident to opposite party and kept the said damaged lorry in New Diamond Body Builders, Auto Nagar, Hyderabad. The estimation were given by the said builders is about Rs.2,27,360/-. The opposite parties appointed surveyor to inspect the vehicle and he submitted his report to the opposite parties. Even after several remainders the opposite parties did not settle claim and on 04-10-05 the opposite parties sent a letter to the complainant by repudiating the claim on the ground that the driver of the vehicle was not having valid and effective driving license. The complainant submits that the driver of the lorry was having valid driving license bearing No.6039/1995, issued by Additional Licensing Authority, Central Zone, Hyderabad and subsequently renewed vide proceedings No.C.No.3393/E5/HC/97. The opposite parties in order to evade the payment repudiated the valid claim of the complainant which amounts to deficiency of service to the complainant. Therefore, the complainant resorted to the forum for redressal.
3. The complainant in support of his case relied on document viz:1)estimate dated:24-05-05 issued by New Diamond Body Builders, Hyderabad, for vehicle No.AP 21 T 3688, besides to the sworn affidavit of the complainant in reiteration of his complaint averments and the above document are marked as Ex.A1 for its appreciation in this case. The complainant caused interrogatories to the opposite party and suitablely replied to the interrogatories caused by the opposite party and also relied on deposition on PW1 and Pw2,. In pursuance to the notice of this forum as to this case of the complainant the opposite parties appeared through their standing counsel and file their written version.
4. The written version of opposite parties denies the complaint as not maintainable either in law or on facts and admits the complainant as the owner of the lorry No.AP21 T 3688 and insured the said lorry vide policy No.753/2005 and the said policy was valid from 07-10-04 to 06-10-05. Immediately after receiving information of the accident the opposite party appointed a surveyor to under take spot survey and the complainant gave details of driving license particulars of the driver of the lorry and the surveyor addressed letter dated:27-07-05 to the Additional Licensing Authority, Central Zone, Hyderabad and the said authority gave reply stating that they have not issued the license bearing No.6039/95 on 29-08-05, accordingly the surveyor submitted is report dated:08-09-05 assessing the loss to Rs.73,828/- and further the surveyor disclosed that the complainant and the repairer have agreed to the assessed amount and submitted his report dated:12-07-06. After verifying the documents it was found that the driver of the lorry was not having valid driving license and it was a fake license, hence, the said vehicle was driven in violation insurance policy terms and conditions and rule-3 of Central Motor vehicle rules and hence the opposite party has rightly repudiated the claim on 04-10-05 and lastly seeks for the dismissal of complaint with exemplary costs.
5. The opposite parties in support of their case relied on the following documents viz1)Certified copy of report (spot) dated:28-05-05 of P.Narendra Kishore insurer surveyor/loss assessor, Kurnool 2)attested xerox copy of policy along with terms and conditions 3)letter dated:08-09-05 of surveyor K.Nageshwara rao addressed to opposite parties as to the nor issual of driving license by R.T.O. 4)letter dated:27-07-05 of opposite party addressed to Assistant Licensing Authority, Hyderabad and 5)endorsement dated:29-08-05 of licensing authority, R.T.A, Hyderabad in response to Ex4, besides to the sworn affidavit of the opposite party in reiteration of its written version averments and above documents are marked as Ex.B1 to B5 for its appreciation in this case. The opposite party caused interrogatories to the complainant and suitablely replied to the interrogatories caused by the complainant.
6. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service on opposite party:?
7. It is a case of the complainant that he is the owner of the lorry bearing No.AP 21 T 3688 and said lorry was insured with opposite party vide Ex.B2 and the said lorry met with accident on 20-05-05 and got extensively damaged. On the claim preferred by the complainant the opposite party repudiated stating that the driver of the lorry was not possessing valid driving license which was a fake license. So the only ground on which the opposite party repudiated the claim of the complainant was unvalid driving license to the driver of the insured vehicle. According to the complainant the license possessed by the driver is an effective driving license and is valid one but according to the opposite party the driving license is fake and not genuine and bogus one. The license of the driver purported to have been issued by Additional Licensing Authority Central, Zone, Hyderabad and it was subsequently a number of time renewed.
8. The opposite party submitted that their surveyor had obtained information from RTA central zone vide Ex.B5, the said endorsement is dt:29-08-05 of Licensing Authority, R.T.A Hyderabad (Central Zone) which says that driving license bearing No.6039/95 was not issued by their office, hence the fact that the license of the driver was proved to be take and it is no driving license in the eyes of law & its subsequent renewal did not validate from the very beginning & thus the complaint deserves to be dismissed.
9. Now the only point for discussion is in the context of a license, the legal position governing the same is now clear. What is fake for all purposes would be non est in the eyes of law. Therefore, the driving license has no existency and it is simply to be ignored. Its subsequent renewal did not validate it. But in order to succeed on the said plea that the license was fake, the opposite party was required on record at least the affidavit of the surveyor/investigator who had obtained necessary information from the concerned licensing authorities. Admittedly, there is no such evidence filed only affidavit filed on record is that of opposite party, the opposite party has not visited the offices or obtained the reports, where as the respondent had clearly stated in his complaint, that he had seen the license of the driver while engaging him. In these circumstances repudiation of the claim by the opposite party is without basis in law & this plea cannot be accepted. The decision of Supreme Court in United India Insurance Company vs. Lehru & Ors., II (2003) SLT Pg 516=I(2003) ACC Pg 611 (SC)=AIR 2003, Supreme Court Pg 1292. In this case the effect of a fake license was directly under consideration before the Supreme Court. What was held & is relevant for the present case is extracted herebelow: “When an owner is hiring a driver he will, therefore, have to check whether the driver has a driving license. If the driver produces a driving license which on the fact of it looks genuine, the owner is not expected to find out whether the license has in fact been issued by a Competent Authority or not. The owner would then take the test of the driver. If he finds that the test of the competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owners to make inquiries with RTOs, which are spread all over the country, whether the driving license shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a license and is driving competently there would be no breach of Section 149 (2)(a)(ii).” The Insurance Company would not then be absolved of liability. If it ultimately turns out that the license was fake the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the license was fake and still permitted that person to drive. The other decision relied by the complainant is that of National Commission reported in II 2006 C.P.J. pg 230, between United India Insurance Company Ltd., Vs Arvinder Singh where in it was held that no evidence was placed on record to show that the respondent hand knowledge that the license of the driver was fake, and the insurance company was held liable to pay the assured amount.
10. As already observed respondent had shown that on being satisfied after having examining the license of the drive he had engaged him (driver) for driving the vehicle in question, there is nothing on record to show that the owner being aware that the driver holding a fake license, still engaged him to drive vehicle. As such by not settling the claim of that there was clear-cut deficiency of service and the complainant is remaining entitled to the assured amount.
11. To sum up, of the above discussions and relying on the decision of Supreme Court and exhibits filed as well as legal aspects, the complainant has to get the assured amount under the policy, which he spent in getting the said insured vehicle repaired for the damages sustained in the accident & the opposite party is liable to pay the same.
12. In the present case the complainant claimed a sum of Rs.2,27,360/-, but the opposite party has submitted that certain depreciations are to be deducted from the repairs. The Ex.X1 final survey report and PW2 evidence estimated the loss up to Rs.73,828/-, which the opposite party has to pay to the complainant.
13. In the result, the complaint is allowed directing the opposite party to pay to the complainant Rs.73,828/- with 9% interest from the date of filling of this case i.e., 14-06-06, along with costs of Rs.3,000/- with in a month of receipt of this order. In default the opposite party is liable to pay supra awarded amount with 12% interest per annum from the date of default till realization.
Dictated to the Stenographer transcribed by him, corrected and pronounced in the Open bench on this the 6th day of March, 2007.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: For the opposite party :Nil
Pw1: Deposition of Pw1,dt:29-11-06
(P.Narendra Kishore).
(Insurance Surveyor/Loss Assessor)
Kurnool.
Pw2: Deposition of Pw2, Dt:07-01-07
(D.R.Krishna Murthy).
List of exhibits marked for the complainant:-
Ex.A1 Estimate, Dated:24-05-2005 given by New Diamond Body Builder,
Hyderabad for vehicle No.AP21 T-3688 of Mr.Ramesh Gupta (No.in 2
pages).
Ex.X1 Final survey Report Dt:07-06-2005.
List of exhibits marked for the opposite party:-
Ex.B1 Survey Report (Spot) Dt:28-05-2005 of P.Narendra Kishore,
Insurance Surveyor/Loss Assessor, Kurnool. (No. in 3 pages).
Ex.B2 Attested Xerox copy of policy along with terms & conditions (No.in 4
pages).
Ex.B3 Letter, Dt:08-09-2005 of Surveyor K.Nageshwara Rao addressed to
opposite party as to the non-issual of driving license by R.T.O.
Ex.B4 Letter, Dt:27-07-2005 of the opposite party addressed to Assistant
Licensing Authority, R.T.A Hyderabad in response to Ex.B4.
Ex.B5 Endorsement, Dt:29-08-2005 of Licensing Authority, R.T.A,
Hyderabad in response to Ex.A4.
MEMBER PRESIDENT
Copy to:-
1. Sri. S.Sivaramakrishna Prasad, Advocate, Kurnool.
2. Sri. Y. Jayaraju, Advocate, Kurnool.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
