R.K.Bawri, Member - Heard Mr V.K. Jindal, learned senior counsel assisted by Mr.S.Jindal and Mr. L. Lyngdoh learned counsel for the Appellant and also Mrs. T.Yangi, learned Counsel for the Respondent.

 

1.         The case of the Appellant/Complainant Smti. Neelam Choudhury (hereinafter `Complainant') is that the Respondent/Opposite Party The Oriental Insurance Company Ltd. (hereinafter `Oriental') refused to accept the complainant's insurance claim in respect of her truck which met with an accident on 9.11.1996 at Shillong though the truck was covered by a comprehensive insurance policy with Oriental valid from 16.1.1996 to 15.1.1997. The cause of the accident, according to the Inspector of Motor Vehicles, was failure of the brakes. The Complainant however stated that she got the truck repaired at a total cost of Rs.82,919.50 being cost of spare parts, labour charge, towing charge etc. and filed an insurance claim with Oriental but, vide their letter dated 9.5.1997, the claim was ultimately rejected by Oriental in the following words:

 

 

 

3.         The Complainant disputed the Investigator's letter dated 29.4.97 and the DTO's endorsement thereon and also filed a Certificate dated 22.10.97 issued by the DTO Churachandpur reading as follows:-

 

 

4.         The learned Forum heard both parties and concluded hearing of the matter on 31.7.98 but thereafter vide notices dated 26.8.98 and 16.11.98 called for a report from the DTO Churachandpur regarding the Driving Licence in question. The DTO Churachandpur vide his report dated 1.12.98 replied to the notices issued and queries made by the Forum. Counsel for Oriental however contested this report as it was not received directly by the Forum but was filed by the Complainant and therefore sought to have the matter re-verified. The DTO's report read as follows:

 

 

5.         The learned Forum thus had before it, reports/certificates dated 29.4.97 issued by the DTO Imphal and those dated 22.10.97 and 1.12.98 issued by the DTO Churachandpur, besides the Original Driving Licence No.37324/MS. Here the matter rested until 21.3.2001 when a newly-constituted Bench of the Forum re-heard the matter, whereafter, on 7.6.01, the learned Forum passed the following order:-

 

 

Accordingly, individual notices dated 8.6.2001 were issued by the learned Forum both to the DTO Imphal and DTO Churachandpur seeking clarification with regard to the Driver's licence. However no reply was received from either DTO, and the learned Forum decided and disposed the matter vide its order dated 4.9.01 dismissing the Complaint and it is this order which is before us in this Appeal filed by the Complainant.

 

6.         In Paras 14 to 17 of its order dt. 4.9.01 the learned Forum after discussing the various reports/certificates came to the findings and decision which are reproduced below:

 

 

In view of the position as it stands revealed we find and hold it that the certificate and the letter of the DTO, Churachandpur, cannot be relied upon for the purpose of this case. That leaves us with the endorsement dated 29.4.1997 of the DTO, Imphal, that the D/L in question did not belong to Shri Ramesh Mahato and that the D/L produced was not a genuine one. In the circumstances, we cannot but accept it and rule that the subject D/L held by Shri Ramesh Mahato, driver of the truck As-02-C-7377 on the day of the accident is a fake one. No one knows who has manufactured the so called D/L in question.

 

What are the possible legal consequences of a fake driving licence in insurance claims? During argument, Ms. Tshering Yangi, learned counsel for the OPs, cites case laws that if the original driving licence was a fake one there will have been no deficiency in service under the Consumer Protection Act on their part even if the insurance companies reject the insurance claims. She draws our attention to the decision dated 25.4.1995 of the Hon'ble National Consumer Commission in M/s Essma Pelts Pvt. Ltd. Versus United India Insurance that a fake licence is non-est in the eyes of law and renewal of a non-est also amount to non-est licence. In Raj Kumar and Another Versus New India Assurance Co. and others decided on 30.1.1996 the National Commission held that the ignorance on the part of the Vehicle owner about the fake licence of his driver could not be a ground for allowing insurance claim, observing that the insurance policy also specified a condition that the person driving on the vehicle should have an effective and valid driving licence.

           

In the circumstances as revealed we hold that there is no deficiency in service on part of the OPs under the Consumer Protection Act. Hence the complaint fails and stands dismissed. No orders as to costs and no need to go into the issues advanced in the pleadings."

 

7.         Having heard at the length the learned Counsels for both sides and having perused the records we are of the view that the order dated 4.9.2001 passed by the learned Forum is unsustainable for the reasons that we shall hereafter discuss.

 

8.         While in view of the confusion arising from the contradictory reports/certificates dt. 29.4.97, 22.10.97 and 1.12.98 the learned Forum decided vide its order dated 7.6.01 to write both to the DTO Imphal and DTO Churachandpur to find out the actual position regarding the validity/authenticity of the Drivers Licence vis-a-vs Shri Ramesh Mahato and in fact did so vide Notices dated 8.6.01, yet no reply was received from either DTO. In that view of the matter the assumption of the learned Forum that as no reply had been received from the DTO Churachandpur the DTO had nothing to controvert or more to say otherwise and his silence implied acquiescence, was in the realm of presumption.The learned Forum also failed to notice that it had sent an identical notice to the DTO Imphal in accordance with its own decision dated 7.6.01 and that no reply had been received from the DTO Imphal too. Therefore, in all fairness, the assumption of the Forum that the DTO Churachandpur had nothing to controvert and the presumption that silence implies acquiescence, also applied in equal measure to the DTO Imphal and hence sole reliance on the endorsement made by the DTO Imphal to the exclusion of the contrary certificates issued by the DTO Churachandpur, to declare the driver's licence as fake was not proper.

 

9.         Further, neither the Reports/Certificates dated 22.10.97 and 1.12.98 issued by the DTO Churachandpur which were filed before the learned Forum by the Complainant nor the Investigator's letter dated 29.4.97 containing the endorsement dated 29.4.97 made by the DTO Imphal filed before the learned Forum by Oriental were received directly by the learned Forum in response to its notices and all were under dispute by one party or the other which led the learned Forum to decide to write to both the DTO's as there was confusion in the matter.Before us, Shri Jindal has assailed the impugned order of the learned Forum on the ground that it was based on an endorsement said to have been made by the DTO Imphal on 29.4.97 which was not proved by Oriental and was disputed by the Complainant. On the other hand Ms. Yangi has argued that the rules of evidence do not apply to consumer fora though no authority was cited to substantiate her assertion. We are afraid that we are unable to agree with Ms. Yangi's proposition. A bare perusal of sections 13 and 14 of the Consumer Protection Act 1986 (the `Act') shows that all cases under the Act are to be decided on the basis of evidence and proof.

 

Section 13(2) of the Consumer Protection Act, 1986 provides as follows:

 

 

a)         refer a copy of such complaint to the opposite party      directing him to give his version of the case within a             period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;

 

b)         Where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or      omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute,-

           

i)          on the basis of evidence brought to its notice by the       complainant and the opposite party, where the opposite           party denies or disputes the allegations contained in       the complaint, or

ii)         on the basis of evidence brought to its notice by the       complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum".

           

It is thus clear that wherever the opposite party denies or disputes the allegations contained in the Complaint, all disputes before the Forum are to be settled on the basis of evidence brought to its notice by the Complainant and the Opposite Party.

 

10.       We find from the records of the learned Forum that throughout the period of four years when the matter was pending before it neither the Complainant nor Oriental Insurance examined any witness to prove the respective reports/certificates relied upon by them despite the fact that these were all disputed and challenged. Although Sec. 13(4)(iii) of the Consumer Protection Act, 1986 also provides for the reception of evidence on affidavits, neither the Complainant nor Oriental insurance even filed any Affidavit to prove these documents, in order to enable these documents to be read in evidence. Nothing prevented Oriental from taking necessary steps in accordance with law to prove that the drivers licence in question was a fake one, as alleged by them, but for over four years they chose not to do so. Even an Affidavit from the Investigator who wrote to the DTOs to enquire about the validity of the licence was not filed before the learned Forum by Oriental.

 

11.       Here, reference may be made to Section 67 of the Evidence Act which reads as follows:

           

It is thus evident that mere filing of a document is not enough to make the document a part of the record. There is still a preliminary matter to be attended to before the contents of a document may be read as evidence i.e. the authentication of the writing or the proof of its genuineness. A writing or signature may be proved by calling a person who signed or wrote a document or by calling a person in whose presence the document was signed or written or by proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it or in any other way in accordance with law. Unless a document is proved it cannot be read in evidence. Sec. 67 of the Act requires the proof of the hand writing or a signature upon a document. If by mere production of a document the truth of its contents was proved prima facie, the requirement of proof of hand writing and signature upon it would be almost superfluous.

 

12.       Thus we find that no reliance could have been placed by the learned Forum on either the reports/certificates dated 22.10.97 and 1.12.98 issued by the DTO Churachandpur nor the Investigator's letter dated 29.4.97 containing the endorsement dated 29.4.97 made by the DTO Imphal as these were not proved in accordance with the provisions of law.

 

13.       Now arises the question of burden of proof. According to Mr. Jindal the Complainant had produced the original driving licence before the learned Forum. Oriental Insurance challenged its genuineness and repudiated the Complainant's claim on the ground that the licence was fake and not valid and thus contravened the policy conditions. Oriental's justification of repudiation thus rested on the alleged breach of the contract of insurance and having so asserted, the burden of proof lay upon Oriental to prove breach of policy conditions.

 

Mrs. Yangi on the other hand has argued that the burden of proof lies on the Insurance Company only when the matter is before a Tribunal but not in the instant case which was before the Consumer Forum where, according to her, as stated earlier too, the rules of evidence do not apply.

 

In this connection it would be useful to recall the judgement of the Hon'ble Supreme Court in the case of M/s Fair Air Engineers (P) Ltd. and Anr. -Vs- N.K. Modi (AIR 1997 SC 533) where at para 10 the Apex Court held:-

 

While it is well settled that the burden of proof on an issue lies upon the party who asserts and not upon the party who denies, in view of the above - mentioned Judgement of the Hon'ble Supreme Court it is further clear that the proceedings before the Consumer Fora are no exception to this rule.

 

14.       In this regard, the law laid down by the Hon'ble Supreme Court in Narchinva V. Kamet & another etc. -Vs- Alfredo Antonio Dal Martins & others (AIR 1985 SC 1281) which is relied upon by Shri Jindal, learned Senior Counsel for the Complainant also needs to be extensively referred to. That too was a case of repudiation of a motor accident Insurance claim on the ground of breach of policy conditions, more particularly of the driver not holding a valid driving licence. At paras 14 & 15 of the judgement the Hon'ble Supreme Court held:-

 

 

 

15.       In view of the law laid down by the Hon'ble Supreme Court in the judgments cited above and the facts and circumstances of the present case we have no hesitation in holding that in the instant case too, the burden of proof lay upon Oriental and they failed to discharge this burden and failed to prove that there was a breach of the term of the contract of insurance on the ground that the driving licence of the driver of the vehicle which met with the accident was a fake one. Oriental having thus failed to prove this aspect its liability under the contract of insurance remains intact and unhampered. Repudiation of the claim by Oriental on this ground is bound to be set aside and Oriental is bound to satisfy the Complainant's claim under the comprehensive policy of insurance. As stated earlier Oriental had adequate opportunity of adducing evidence before the learned Forum to substantiate its contention that the Driver Licence in question was a fake one but they failed/ neglected to do so and for their failure to discharge this burden of proof the Complainant ought not to be allowed to suffer.

 

16.       Mr. Jindal, learned Senior Counsel for the Complainant has argued that even assuming but not admitting that the driving licence was a fake one, the Complainant was totally unaware that it was fake as the driving licence, on the very face of it, showed that it was genuine. The licence not only bore the signature and seal of the issuing authority but also the endorsements of renewal by different authorities bearing their signature and seal from time to time viz. renewal on 6.6.89 by DTO Kamrup, Guwahati and renewals on 19.8.92 and 5.10.95 by DTO Kamrup West Zone, Guwahati, valid upto 4.10.98 ( the accident occurred on 9.11.96 ) which is confirmed in the findings of the learned Forum in their order dated 4.9.2001. Therefore, according to Mr. Jindal, the Complainant could not even have suspected the Driving Licence to be fake and bonafide believed it to be genuine and even for the sake of argument, if there was a breach of the policy conditions regarding valid and effective driving licence of the driver, the breach was not wilful or within the knowledge of the Complainant who bonafidely believed the licence to be authentic. Relying on a judgement of the Hon'ble Supreme Court reported in AIR 1987 SC 1184 (Skandia Insurance Co. Ltd. -Vs- Kokilaben Chandravadan and Others) Mr. Jindal referred to Para 14 of the judgement where the Apex Court held that the expression "breach" of Policy conditions carries within itself and induces an inference that the violation or infringement on the part of the promiser must be wilful.

 

17.       On the other hand, Mrs. T. Yangi learned Counsel for Oriental Insurance has relied upon two judgments of the National Commission. In 1996 (1) CPR 81 (NC) (Raj Kumar & Anr. -Vs- New India Assurance Co. & other), the National Commission held (at para 3) that it was contractually incumbent on the insured to satisfy himself of the genuineness of the Driving Licence of the driver he employed and the ignorance on the part of the owner about the drivers' fake licence cannot be a ground for allowing insurance claims. In that case, the National Commission also did not feel that the Skandia Insurance case (supra) was on all fours with the case before them.

 

The other judgement relied upon by Mrs. Yangi is 1995 (2) CPR 184 (NC) (M/s Essma Felts (P) Ltd. -Vs- United India Insurance Co. Ltd. and Anr.) where the National Commission held that repudiation of claim by the Insurance Company on the ground of the driver not holding a valid driving licence was quite in order and that in the eyes of law a fake licence is as good as non-est and renewal of non-est also amounts to a non-est licence. The National Commission also found no force in the argument of the Appellant/Complainant's Counsel that they should not suffer because the driver on the fateful date held a fake licence.

 

18.       No doubt, as held in Rajkumar's case (supra) ignorance on the part of the owner about the drivers fake licence cannot be a ground for allowing insurance claims, but in the case at hand the fact remains that the non-genuineness of the licence must first be proved by the Insurance Co. which repudiates a claim on this ground. The Rajkumar case (supra) is distinguishable inasmuch as therein it was "on an examination of facts and evidence before it (that) the State Commission found that the licence of the said driver was originally a fake and bogus one", whereas in the case before us there is no evidence which goes to prove that the Drivers Licence was originally a fake one.

 

In Essma Felts case (supra) the claimant/insured did not dispute the fact that the Driver Licence was originally a fake one but claimed that since the renewal of the licence was genuine the licence, although originally fake, became valid on the basis of the renewal and this argument was negatived by the National Commission. Further, in that case the non-genuineness of the licence was established on the basis of a clear reply received from the original licensing authority in response to the summons issued by the State Commission containing full particulars of the licence including validity period, type of vehicle etc.

 

However, the instant case is not on all fours with Essma (supra). Here not only has the claimant disputed that the original Drivers Licence is fake, no reply has been received directly by the District Forum from either the DTO Churachandpur or DTO Imphal in response to the notices issued to them by the District Forum seeking clarification on the genuineness or otherwise of the Driver Licence in question. What was filed before the learned Forum were conflicting reports/certificates procured both by the Complainant and Oriental Insurance from two different DTOs at Churachandpur and Imphal, one of whom says that the original licence is genuine and the other says it is not. In any event, as discussed above, none of these reports can be relied upon as they have not been proved and adduced in evidence and the non-genuineness of the Driver Licence is yet to be established in accordance with law for which the onus of proof lay on Oriental Insurance but was not discharged by them.

 

19.       Lastly we may mention that Mr. Jindal has also drawn our attention to a judgement of the Hon'ble Supreme Court in the case of New India Assurance Co. Shimla - vs - Kamla and Others ( 2001 ( 2 ) TAC 243 SC ) wherein at para 22 the Apex Court held :