The Complainant’s Case, in brief, is that the complainant purchased a vehicle, viz, MAHINDRA BOLERO PICK UP 2 WD bearing Engine No. TBJIE 53901, Chasis No. MAIZN2TB&JIE45283 from M/S Sabita Automobiles securing loan from the Vijaya Bank, Silchar. The said vehicle was registered vide Registration No. AS-11-CC-7876 and the vehicle was insured with the Opposite Party No.- 2 vide Insurance Policy No. 322600/ 31/2019/2935 . On 17/05/2019 while the aforesaid vehicle was proceeding towards Karimganj from Silchar then at about 7 A.M. in the morning at Kandigram on Silchar Karimganj road it met an accident and the vehicle capsized on the side of the road and got badly damaged. In this connection Badarpur Police GDE No. 220/2019 dated 17/05/2019 was registered. The Complainant immediately informed the Opposite Party No.-2 , the Insurance company who in turn appointed Sri Chandan Dutta, the O.P. No.-4 for assessment of the loss due to accidental damage and the complainant furnished all necessary materials to the O.P. No.-4. On 21/05/2019 the Complainant formally informed the the Insurance Company. Later on after a long time vide letter dated 27/02/2019 the O.P. No.-2 declined the claim of the Complainant on the plea that the driving license of the driver of the vehicle Imadul Islam Barbhuiya was a fake one. It has been stated by the Complainant that he engaged the driver on perusal of the smart card Driving License issued by the DTO Hailakandi, Assam vide DL No.- AS-2420140017145 valid for the period from 18/12/2018 to 02/11/2039 and there is no reason for disbelieving the driving license issued by the apporopriate authority with the latest technology. According to the Complainant the Insurance Company by the above act has caused disservice, mental agony, pain to the Complainant and they are liable to compensate the damages . The Complainant has, therefore, prayed for passing for an award of Rs.5,40,000/- towards damages of the vehicle, an amount of Rs.3,25,000/- for parking charges, an amount of Rs.5,00,000/- for hiring alternative vehicle alongwith compensation and for cost of the case.
Opposite Parties Insurance Company, i.e., O.P. Nos. 1 & 2 filed written statement stating interalia that the instant complaint is not maintainable in its present form and nature, that there is no cause of action, that the complaint case is bad for waiver, estoppel and acquiescence etc. etc. In their written statement the answering O.Ps. have admitted the fact that the Insurance Company insured the alleged vehicle of the complainant and after receipt of the claim intimation from the Complainant the Insurance Company deputed Surveyor who submitted his report in due course in respect of the damages of the vehicle and losses incurred for the same . But the averment of the O.Ps. is that the claim of the Complainant was rejected as it revealed during investigation that Md. Imdadul Islam Barbhuiya, the driver of the vehicle in question at the relevant time was possessing fake driving license. According to the O.Ps. as per Driver’s clause embodied in the Policy ‘ no claim is admissible if driving license is found fake or is not valid, whether or not in the knowledge of the insured.’ Under the circumstances it has been claimed by the O.Ps. that the Insurance Company did not do any injustice by repudiating the claim and also there was no disservice on the part of the Insurance Company towards the Complainant.
Opposite Party No.-5 M/S Sabita Automobiles filed separate written Statement wherein it is stated that the Complainant , owner of Bolero Pick Up, brought his vehicle in their workshop on 21/05/2019 for accidental repair of the vehicle. Subsequently though on 30/10/2019 the repairing work was completed and on 06/11/2019 bill was prepared but the Complainant did not take delivery of the vehicle as he was in financial crisis and finally on 16/05/2020 he took delivery of his vehicle with full satisfaction. As such it has been prayed to relieve them from any liability.
In support of the case the complainant has submitted his evidence on affidavit as PW-1 and has also exhibited some documents. On the other hand evidence on affidavit of one Sri Thanglianlal Tonsing , Assistant Manager of the Oriental Insurance Company Ltd. has been submitted from the side of the Opposite Party Insurance Company as DW-1. Some documents also have been exhibited from the side of O.P. Both PW and DW were cross-examined by the opposite party . Both sides also submitted written argument in addition of oral argument put forward by the learned counsels of the respective parties. Perused the entire evidence on record. Let us now appreciate the evidence below.
In his evidence PW-1, the complainant has averred that he purchased MAHINDRA BOLERO PICK UP 2 vehicle bearing Engine No. TBJIE 53901, Chasis No. MAIZN2TB&JIE45283 and bearing registration number AS-11-CC-7876 from M/S Sabita Automobiles securing loan from the Vijaya Bank, Silchar. The said vehicle was also insured with the O.P. Insurance Company vide Ext.-1 Insurance Policy No. 322600/31/ 2019/2935 . On 17/05/2019 while the aforesaid vehicle was proceeding towards Karimganj from Silchar then at about 7 A.M. at Kandigram it met an accident and the vehicle capsized on the side of the road and got badly damaged. In this connection Badarpur P.S. GDE No. 220/2019 dated 17/05/2019 was registered and the matter was reported to the Opposite Party No.-2 , the Insurance company who in turn appointed Sri Chandan Dutta, the O.P. No.-4 for assessment of the loss due to accidental damage and the complainant furnished all necessary materials to the O.P. No.-4. Subsequently through Ext.-2 letter dated 27/02/2019 the O.P. No.-2 declined the claim of the Complainant on the plea that the driving license of the driver of the vehicle Mr. Imdadul Islam Barbhuiya was a fake one. The above facts, however, are not in dispute as reveals from the evidence of DW-1. In his own evidence the DW-1 has averred that during processing of the claim it revealed that the Driving licence of driver Imdadul Islam Barbhuiya was renewed by the DTO, Hailakandi, Assam vide No. F/T/27917/HKD/17 ( Smart card no.-AS-2420140017145) . On enquiry the DTO, Hailakandi furnished the requisite information of the driver Imdadul Islam Barbhuiya vide Ext.-F, the verification report dated 30/12/2019 and from the said report it revealed that the original license was issued by DTO, Bishnupur ( Manipur) and the DTO, Hailakandi renewed the said license . Further version of the DW is that based on the above information the Insurance Company deputed Investigator for verification of the aforesaid driving license from the DTO, Bishnupur and as per Ext.- H the verification report dated 29/01/2020 issued by the DTO, Bishnupur ( Manipur) it has come out that the aforesaid driving license was standing in the name of Sri Surajit Paul S/O Satyendra Paul of village-Kumarpara, District- Cachar ( Assam ) and not in the name of Imdadul Islam Barbhuiya. It has been stated by the DW that as per driver’s clause of the policy ‘ no claim is admissible if driving license is found fake or is not valid, whether or not in the knowledge of the insured’. As such, according to DW, the Insurance Company vide Ext.-J letter repudiated the claim of the Complainant. The DW has also claimed that there is no deficiency of service on the part of the O.P. Insurance Company.
It is a fact that Ext.-H clearly shows that driver Imdadul Islam barbhuiya at the time of alleged accident was possessing a fake driving licence. During the course of argument the Insurance Company drawing attention to Section 3, Section 149(2)(a)(ii) and SectionIn 15(6) of Motor Vehicles Act, 1988 submitted that the insured did not comply with the statutory requirements as per provisions of Motor Vehicles Act. Moreover the complainant has violated the Driver’s clause enumerated in the Policy towards appointment of the driver. Because in the Smart Card Driving Licence itself the details of previous record is embodied and so the complainant could have verified the driving license from the concerned authority before appointing him as driver. But in this respect the submission of the Complainant side is that on perusal of the smart card driving license issued by the DTO, Hailakandi driver Imdadul was engaged and there was no reason for him to disbelieve the said driving license issued by the apporopriate authority with the latest technology. In this connection we may rely on the decision of the Hon’ble Supreme Court passed in Civil Appeal Nos. 1999-2000 of 2020 between Nirmala Kothari (appellant) Vs. United India Insurance Co. Ltd. ( Respondent) wherein it has been observed in para (11) that “ 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 face 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 no 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. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the Insurance Company would no longer continue to be liable.” There is no dispute in the case that the Smart Card Driving licence of driver Imdadul Islam Barbhuiya was issued by the DTO, Hailakandi. The claim of the Complainant is that on perusal of the said driving licence issued by the DTO, Hailakandi the driver was engaged. On the other hand, there is no submission from the insurance Company that on the face of the said licence it does not look genuine and /or the Complainant had knowledge that the said driving licence was fake. Under the circumstances for possessing the fake driving licence by the driver of the alleged vehicle at the time of the alleged accident the claim of the Complainant/Insured can not be repudiated.
In view of the above we hold that the Complainant is entitled to get reliefs in the case and by denying the claim for compensation the Insurance Company has caused disservice to the Complainant. Case record shows that after inspection of the damaged vehicle the Surveyor submitted Ext.-C final Survey Report to the Insurance Company. The Complainant has not challenged the loss assessed by the Surveyor. The DW in his cross-examination has stated that the assessment is correct. According to Ext.- C Survey Report the loss was assessed at Rs.2,17,680/- ( Rupees two lakh seventeen thousand six hundred eighty ) only.
Under the circumstances, it is ordered that the O.P. Insurance Company shall pay to the complainant an amount of Rs. 2,17,680/- ( Rupees two lakh seventeen thousand six hundred eighty ) only towards compensation for damage of the vehicle , an amount of Rs.15,000/- ( Rupees fifteen thousand ) for mental pain, agony & harassment and also an amount of Rs. 20,000/- ( Rupees twenty thousand ) only towards legal expenses. The entire amount shall be payable within a period of 90 (ninety) days from today otherwise the O.P. will be liable to pay interest @ 9% per annum upon the amount from the date of this order till payment.
Signed and sealed on this 14th day of July’ 2022 .
