OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.48/2010
Present:-
1)Md. Sahadat Hussain, A.J.S. - President
2)Smti. Archana Deka Lahkar - Member
3)Md. Jamatul Islam - Member
Sri Ranu Das - Complainant
Son of Late Jatindra Kr.Das
C/O M/S R.D.Traders
Promod Complex,
LalganeshTiniali, Guwahati-34
-vs-
1) The Regional Manager - Opp.parties
Oriental Insurance Company Ltd.
Regional Office Godrej Building
G.S.Road, Ulubari,Guwahati-7.
2) The Branch Manager
Oriental Insurance Company Ltd.
Opp.OldD.T.O.Office.
G.S.Road, Ulubari, Guwahati-7.
Appearance :
Ld.advocate Mr.Ashit Baran Roy for the complainant and Ld.advocate Ms.S.S.Choudhury and Ms.Piyali Mitra for the opp.party No. 1 & 2 .
Date of oral argument - 07.05.2018.
Date of judgment - 05.06.2018
JUDGMENT
This is a case u/s 12 of Consumer Protection Act, 1986
1) The complaint filed by Sri Ranu Das, son of Lt.JatindraKr.Das, Lalganesh Tinali, Guwahati 34 against Regional Manager, Oriental Insurance Company Ltd.Guwahati-7 and branch Manager Oriental Insurance Company Ltd.Guwahati-7 was admitted on 20.4.2010 and notices were served on both the parties and both the parties also filed joint written statement on 27.12.10. The complainant Ranu Das filed his evidence on affidavit on 13.6.11 and he was cross-examined by the opp.party sides’ ld.advocate . For the Opp.Party No.1, Sri Anil Kr.Jha filed the evidence on affidavit, but his evidence was expunged vide order dtd. 14.7.15 allowing theopp.party to file evidence of one Sri Ranavir Ganguli and he filed his evidence on affidavit on 19.11.2015 and he was cross- examined by the Ld.counsel of the opp.party on 23.08.16. Thereafter, the opp.party side is allowed to call D.T.O., Nalbari as official witness for the opp.parties vide order dtd.31.03.16, and accordingly one Sri Paresh Barman, LDA of DTO office ,Nalbari appears on 24.06.17 as witness for the opp.partieshis oral evidence is recorded . Thereafter, both sides’ ld.counsel filed the written argument. Thereafter, on 7.5.18 we heard the oral argument of Ld.advocate Sri Ashim Gupta for the complainant and of Ld.advocate Ms Piyali Mitra for the opp.parties and today we deliver the judgment which is as below-
2) The complainant case in brief is that he had purchased a super delux bus bearing Registration No. AS-25-C-0329 being financed by Mahindra and Mahindra Finance Co. and insured the vehicle for Opp.Party No.1 & 2 vide policy No. 321204/2007 which is only means of his livelihood, which ran from Guwahati to Dhubri vice versa. Before appointing the drivers he verified driving license, vide No.F00269/2001/KWZ) in the office of DTO Kamrup , Guwahati and again did a trial trip from Jalukbari to Jagiroad and back, in his presence and he was satisfied with the driver ’s driving. On 24.4.2003, as usual, the bus started from Dhubri to Guwahati but on the way it met with an accident near Dhirghat N.H.31 under Chapor Police Station, and Chapor Police Station registered a case vide Chapor Police Station Case No. 79/06 u/s 279/337/338/304 (A)/ 427 IPC getting information about the accident. He informed the opp.parties about the accident on 25.4.2006, and they also asked him to submit the filled up claim form alongwith estimates, the original registration card, the driving licence, the fitness certificate, the Police report and the MVI report of the vehicle, but the vehicle was lying in the Chapor Police Station and he could not provide all those documents desired by the opp.parties. The D.T.O. of Dhubri, on the request of police, got the vehicle inspected through a MVI, who submitted his report on 7.5.2006. Subsequently, he took the vehicle on his zimma and brought it to Guwahati on 22.5.2006 after completing all the formalities, and then he filed all the original documents along with claim to the opp.party. The opp.party got the vehicle surveyed, in the garage and instructed him to start the repairing work, As the vehicle is only source of his livelihood, he got the vehicle repaired and submitted the original bills and vouchers of repairing to the tune of Rs.1,91,609/- to the opp.parties, butOpp.Party No.2 denied to sign on in the Specific Space “RECEIVED BY” and as such he did not submit original bills and vouchers, He sent it through registered post on 3.10.07 with a request to take step. But Opp.Party No.2 issued no reply to him. Finding no reply, he approached Insurance Ombudsman on 27.11.2007; and the Ombudsman,after hearing, pronounced judgment and passed award on 14.3.2008 and directed the opp.parties to communicate their decision on his claim to him within 15 days from the date of receipt of the copy of the order . But they did not comply the said order of the Ombudsman and then he intimated the matter to the opp.parties with a copy to the Ombudsman on 10.4.08, but received no reply; and then he again wrote to the Insurance Ombudsman on 3.10.2008 to give direction to the opp.parties to communicate their views. But they did not comply the order of the Ombudsman and then he served a legal notice on Opp.Party No.1 stating to comply the order of the Ombudsman and the opp.parties on 17.7.09 intimated him that their competent authority had repudiated his claim showing the ground of gross violence of policy condition by him. Due to wrong done by the opp.parties, he had to suffer irreparable financial loss and also suffered from mental agony; and therefore, he prays to this forum to direct the opp.parties to pay him the repairing cost which is Rs.1,91,609/- with interest @ 12% per annum till actual realization of money and to pay him Rs.50,000/- for causing mental suffering and agony to him, and Rs.3,000/- as conveyances cost he has borne and other reliefs allowed under law.
2) The pleading of the opp.parties is that the complaint is misconceived and groundless , it has no cause of action; it is frivolous and vexatious . Their investigator, after verifying the driving licence of the driver Sri Krishna Mazumdar, found that the driver was not qualified to drive the same. The vehicle was used for commercial purpose for the reason of appointing driver to drive the said vehicle, the complainant is not a consumer and as such he cannot take protection under Consumer Protection Act. The complainant has not submitted any documents to prove that the driver had valid licence and the vehicle had permit etc. The surveyor after serveying the vehicle submitted the report dtd. 12.3.07 quantifying the loss at Rs.1,25,460/-. The driver had not possessed valid driving licence at the time of accident and as such the complainant has violated principal clause of driving licence ; and therefore, his claim was repudiated . At the time of accident, as per report of the hospital, three passengers died and thirty nine passengers got injured in the accident. As per report of the police, there was 42 passengers against the seating capacity of 35 passengers and thereby the vehicle was overloaded at the time of accident and that is the cause of accidnt. As per decision of National Commission, New Delhi in the first appeal No.4/1992 Gopal Dutta and Joy Singh –vs- the Branch Manager, New India Assurance Co.Ltd. owndamager claim on the vehicle admissible and payable . They have taken decision after due application of mind and their decision is lawfull. Their investigator , Sri Biswajit Das, found that the vehicle was being driven by Mr.KrishnaMazumdar , Driver having the Driving License No. F/0269/2001/K(W/Z). On verification of D/L No. F/0269 /2001/ K (W/Z) from from DTO Kamrup, Betkuchi, Guwahati-34 it revealed that the old number of D/L was F/4054/92/NB, Nalbari, which was also verified from DTO, Nalbari through our investigator, Sri Biswajit Das, Guwahati who found that the said D/L No. F/4054/92/NB was issued in the name of Sri P.C.Das and not in the name of Sri Krishna Mazumdar. The specific endorsement on the said D/L is reproduced hereunder.
“Returned in original with the intimation that the D/L No. F/4054/92/NB issued in the name of Sri P.C.Das and not in the name of Krishna Mazumdar.
Please produce the original D/L copy
Sd/ Illegible
District Transport Officer ”
Again on receipt of driving license of Sri Krishna Mazumdar, driver it revealed that the original D/L No. was as 28747/91/CH . Accordingly, the D/L No. 28747/91/CH was verified though our Investigator Mr.Abhimanyu Nandi from DTO, Churachandpur, Manipur and found that the said D/L was issued in the name of one Rakshpal Singhand not in the name of Krishna Mazumdar. The relevant endorsement given on the face of Investigator’s letter dtd. 29.8.07 by DTO,Churachandpur is reproduced hereunder.
“As per record the D/L No. 28747/CH was issued in the name of Rakshpal singh to Drive MC & LMV e.e.f. 24.8.2000 and not in the nem of Sri
Krishna Mazumdar
Sd/ Illegible
District Transport Officer
Churachandpur,District Manipur ”
Thus, it is established that the driving licence obtained by the driver is “FAKE” since the original driving licence including renewal one from D.T.O. ,Nalbari found to be fake. Supreme Court in Appeal (Civil 1140/2007 (N.I.C.Ltd. –vs- Lakshmi Narayan) opined that if the original licence is found to be fake the subsequent renewals are fake and insurance company has no liability on own damage claim of motor vehicle, . As such they are not laible to pay any compensation to the complainant for damage of his vehicle in the said accident and the complaint is liable to be dismissed.
3) We have perused argument of both sides’ Ld.counsels as well as their pleading and evidence and found that it is both sides admitted fact hat the complainant Shri Ranu Das who had purchased a second hand Super deluxe bus bearing registration No. AS-25-C-0329 being financed by MAHINDRA AND MAHINDRA Finance Company, which he insured with Oriental Insurance Co.Ltd, Ulubari branch vide policy No. 321204/2007 had met with an accident on 24.4.2006 near Dhirghat over NH 31 (Under Chapor P.S.) and got damaged and the Police of Chapor P.S. registered a case on being on being informed by the complainant vide Chapor P.S. Case No.79/06 under Section 279/337/338/304(A)/427 IPC; and he also informed the opp.parties about the accident and also filed claim before the opp.party and Chapor Police Station got the vehicle inspected through a MVI who filed report on 7.5.2006; and that on 22.5.06 the complainant took the vehicle in his Zimma and the opp.party also got the vehicle surveyed through their surveyor; and thereafter he got the vehicle repaired in a garage at Guwahati and submitted claim for re-imbursing the cost of repairing Rs.1,91,609/- and after receiving the claim of re-imbursement the surveyor of the opp.party Shri DipakBorgohain submitted the report on 12.3.07 quantifying the loss at Rs.1,25,460/-. It is also found that the opp.parties refused to allow his claim on the grounds (i) the complainant is not a consumer as the use of the vehicle for commercial purpose (ii) at the time of accident the driver was not having a valid driving licence to drive the vehicle.
Perusing the driving licence of the driver, DL No. F/0269/2001/K(W)/Z it reveals that the DL F/4054/92/NB/ Nalbari from which the disputed D/L arose had been issued in the name of one Shri P.C.Das but not in the name of Krishna Mazumdar, and the original driving license i.e. DL No. 28/747/91/CH (Churachandrapur), Manipur was issued in the name of one Rakspal Singha not in the name of Krishna Mazumdar and that was for driving MC& LMV w.e.f. 24/8/2000 hence the driving license held by the driver is a forged and fake driving licence and renewal of said driving licence by D.T.O.Nalbari and DTO Kamrup found to be fake.
4) The complainant in his complaint as well as in his evidence states that he verified the driving licence of the driver in the DTO office ,Kamrup and found it was renewed by DTO, Kamrup and he also conducted a test driving of his vehicle driven by the said driver from Jalukbari to Jagiroad vice versa and on being satisfied with his driving, he handed over the vehicle to drive from Guwahati to Dhubri via golokganj vice versa on the day of accident . Thus it is established that before handing over the vehicle to the said driver, the complainant did the test driving through the said driver and was satisfied with his driving and secondly, he properly verified the driving licence of the said driver in the DTO office, Kamrup and found the D.L.held by the driver was issued by DTO office , Kamrup, meaning thereby he found the driving licence of the said driver was genuine and that he was not aware of that the original driving licence purportedly issued by DTO Churachandrapur, Manipur and DTO, Nalbari were fake driving licences having those driving licence were not issued in the name of Krishna Mazumdar. In National Insurance Co.Ltd. (Petitioner) -vs- Charansing&others (Respondent) (2004) 3 Supreme Court Cases.297 referred by the complainant side counsel, three judges bench of the Supreme Court observed that the forged licence is as good as no licence, but requirement to establish the defence in that point the insurer must prove that the owner of the vehicle was guilty of willfull breach of condition of the insurance policy and the defence to the effect that the driving licence held by the driver was a fake one, would be available to the insurance company , but whether despite of the saying, the plea of default on the part of the owner has been established or not; whether the insured did not take reasonable and adequate care and caution to verify the genuineness or otherwise of the licence held by the driver, would be a question which will have to be determined in each case.
In New India Assurance Co.Ltd.-Vs- Hardip Singh (Case No. OWP 361/2001)(2006 legal Eagle (JNK) 233) referred by the complainant side Ld.counsel, the Jammu and Kashmir High Court observed that (i) the original authority of issuing driving licence has to inform the renewing authority about the fakeness of the driving licence otherwise the renewal authority will presume that the original licence had been validly issued (ii) the insurance company must have averment that the claimant was aware that the driver was holding a fake driving licence and is also liable to satisfy the claim.
In Pepso Road Test Corporation –vs- National Insurance Co.2013 Legal Eagle (SC 642) referred by the complainant sides’ Ld advocate, Hon’ble Supreme Court of India Observes that, when before employing a driver, he was put to driving test and was also imparted traning also and driving licence was seen as genuine one, it cannot be said that the insured is at fault in having employed the person whose licence has been proved by the insurance company before the Tribunal.
From the referred cases we have found that, in Swaran Singh case,(2004) 3 SCC 297 Supreme Court opinion that it is the burden of the insurance Co. to prove that the Insured did take reasonable and adequate step and caution to verify the genuineness of the driving licence. In our case it is found that opp.party has no averment to the effect that, the complainant was aware that the driver had fake licence. In the complaint as well as in evidence, the complainant clearly states that he did the driving test of the said driver from Guwahati to Jorabat and vice verca and found him fit to drive a vehicle like that and the complainant also verified the driving licence (No. F0269/2001/KWZ) at DTO office, Kamrup and found that the said driving licence was genuine one. Thus, it is established that the complainant after, taking driving test, of the driver, found that the driver was a efficient driver, and after verifying the D/L found that the D/L was genuine and then he allowd the driver to drive his vehicle , but the said vehicle met with an accident when it was returning from Dhubri to Guwahati. In such circumstance basing on above decision of the Hon’ble Supreme Court we hold that, the opp.party is liable to pay compensation to the complainant for the damage of his vehicle in the said accident (reimbursement of repairing cost).
5) From the evidence of Opp.Party No.1 and Opp.Party No.2 the driving licence of the driver which was renewed by D.T.O. Kamrup as DL No. F0269/2001 KWZ was issued by DTO Kamrup basing on DL No.F 4054/NB/92 and that driving licence was actually issued by DTO Nalbari to Sri PrafullaCh.Das S/O Rabin Ch.Das, Howly Town District,Borpeta. The opp.party also states that, the original D.L.was issued by DTOChurachandrapur, Manipur which is DL No. 2874/91/CH was found after verification that, that licence had not been issued in the name of the connected driver , but issued in favour of one Rakshapal Singh. It is law that at the time renewal of the D/L it is the duty of renewing authority to collect information from the previous issuing authority to collect information from the previous issuing authority as to whether they have issued the said D/L or not. But it is not the duty of the owner of the vehicle to make enquiry in the office of the DTO who had issued the original D/L . So the fault was caused by DTO, Kamrup in renewing the D/L of the connected driver and for the fault of DTO, Kamrup the present complainant cannot suffer having he, after making enquiry in the DTO Office , Kamrup, (west) found that the renewal driving licence actually issued by DTO Kamrup, (west).
6) Regarding accident, the complainant states in his complaint as well as in his evidence that his vehicle had on 24.4.06met with an accident near Dhirhat over NH 31 under ChaporP.S.while it was returning from Dhubri to Guwahati, but opp.party side states that the accident had taken place due to carrying over passenger i.e. carrying 42 passengers while sitting capacity is only for 35 passenger. It is found that overloading is only seven passengers. The opp.party states that the police found that fact. But the opp.party adduces no concrete evidence to prove that fact. So we hold that the plea of the opp.party that vehicle carried overloading and that overloading caused accident to the vehicle is not established , but plea of the complainant that in the course of normal driving of the said vehicle, the vehicle had met the said accident and the said accident had not taken place due to contributory negligence of the complainant and his driver .
7) The another plea of the opp.party is that, the complainant is not a consumer as he had used the connected vehicle for commercial purpose. The complainant is found to have stated that he purchased that vehicle to earn his livehihood. The version is not denied by the opp.party. Thus it is found that the said vehicle is the only source of his livelihood and it is for self employment, and hence his case will come in the explanation given under sub-clause”2” of clause “d”, Sub-section -1, Section -2 of Consumer Protection Act,1986. So, using the said vehicle by the complainant for earning money for his livehihood and which is also his self employment. Therefore he is a consumer as defined in section-2(1)(d) of the Act.
8) It is both sides admitted fact that, in the said accident three persons died, some got injuries and the vehicle itself suffered substantial damage. It is admitted fact that, the surveyor appointed by the opp.party, after surveying the damage of the vehicle, found that, the vehicle sustained substantial damage and the surveyor in his report (Ex-C) stated that the insurer liability is 1,25,460/-. The complainant states that in repairing the said vehicle he borne a cost of Rs.1,91,609/-.
We have perused the documents filed by the complainant in his evidence , documents No. 14 to 19 and found that he had spent Rs.1,91,809/- in repairing his vehicle . This calculation is not actively disputed by the opp.party. Thus , we hold that , the plea of complainant that he spent Rs.1,92,000/- in repairing his vehicle after the accident stands established.
9) The opp.party side is found to have repudiated the claim on the ground that , the complainant violated the terms and condition of the policy and accident occurred due to overloading , but both the grounds we have found not proved in our above discussion. In this case, the opp.party side Ld.advocate refers the judgment of National Commission in AmardeepSarmah (Petitioner) Vs Oriental Insurance Co.Ltd.(2012 STPL 5521NC) and the judgment of Hon’ble Supreme Court in National Insurance Co.Ltd.(2012 STPL 5521NC) and the judgment of Hon’ble Supreme Court in National Insurance Company Ltd. Petitioner vs Lakhiminarayan Dhoot (2007 STPL 5990SC). We have perused both the judgment and found that the decisions given in the said judgment are not applicable in our present case having the factual situation in the said cases are not similar with the factual situations in the case in our hand. Hence, the decisions of the referred cases do not come into help to the opp.party . Therefore, we hold that the opp.party is liable to re-imburse the expenditure (Rs.1,91,609/-) which the complainant had incurred in repairing the said vehicle after the accident. Secondly, as the opp.party illegally repudiated the claim of the complainant , hence the complainant is entitled to get interest on the said amount @6% p.a.from the date of filing of this complaint i.e. 20.4.2010.
By not paying the said amount in due time, and by compelling the complainant by the opp.party to make several correspondences with them caused harassed the complainant. This also caused financial loss to the complainant by not paying the said amount in due time. Hence the opp.party are liable to pay at Rs.10,000/- as compensation. Secondly, for the fault of opp.party the complainant has to prosecute them before this forum incurring cost of engaging advocates and the cost of his attending in the Forum. Therefore, we are also in opinion that , the opp.party is liable to pay the complainant Rs.10,000/- as compensation for harassing him etc.and to pay him Rs.10,000/- as cost of the proceeding.
10) Summarizing our discussion as above, we hold that the complaint has merit and the complainant has succeeded to prove his case against the opp.party. Hence the complaint against both the opp.parties is allowed on contest and the opp.parties are directed to re-imburse the complainant the cost of repairing the vehicle which is Rs. 1,91,609/- along with interest @ 6% p.a. from the day of 4th April 2010 and to pay him compensation of Rs.10,000/- for causing harassment to him etc.and Rs.10,000/- as cost of the proceeding, to which both the opp.parties are jointly and severally liable. They are also directed to satisfy the award within 45 days and on default, other two amounts will also carry interest at the same rate.
Given under our hands and seal on this 5th June ,2018.
(SmtArchanaDekaLahkar) (Md.Jamatul Islam) (Md.SahadatHussain)
Member Member President
