Complainant Mahant Ram Sunder Dass through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has sought issuance of necessary directions to the titled opposite party to pay Rs.5,76,452/- along with interest @ 12% P.A. He has also claimed Rs.1 Lac as compensation for the losses caused by the opposite party and Rs.15000/- as litigation expenses.
2. The case of the complainant in brief is that he had obtained an insurance policy No.2002023113P179782235 dated 7.3.20012 for the period w.e.f. 7.3.2012 to mid night of 6.3.20013 for the vehicle bearing registration No.PB-18-S-1008 “Toyota Kirloskar Fortuner” from the opposite party and the opposite party issued the insurance cover note and thereafter the private car package policy for the same. It was stated that complainant is a lawful owner of the above said vehicle. It was stated that complainant is the consumer of the opposite party and has not any intention to get any profit from the above said insurance policy in any manner. It was further stated that the vehicle of the complainant met with an accident on 21.1.2013 within the area and territory of Allahabad while going from Punjab for Kumbh Mela at Allahabad. It was stated that when the driver of the vehicle reached near Pogahat Bridge Allahabad, suddenly a truck was came in front of the vehicle of the complainant and the same was badly damaged. The above said policy was in operation when the accident took place. It was also stated that complainant has completed all the formalities within the stipulated period as per the directions of the opposite party and submitted all the required documents with the opposite party. It was further stated that authorized Surveyor of the Company has assessed the loss suffered by the complainant. It was stated that the vehicle of the complainant was repaired at Goenka Motors Private Limited Rajendra Toyota Andhwa Varanasi Allahabad Road, Jhunsi Allahabad, Allahabad, Uttar Pardesh and the details of the payment for the repair of the vehicle to tune of Rs.5,76,452/- was duly assessed by the said workshop in respect of the above said vehicle. It was also stated that the legal and genuine claim of the complainant was repudiated by the opposite party vide letter dated 31.12.2013 on the ground that the complainant has not submitted the required documents with the opposite party and also the driving license of the driver was found fake as per the investigation report of Mr.Sandeep Dutta. It was stated that the repudiation of the claim of the complainant through the above said letter is illegal, unlawful and unwarranted. It was further stated that complainant is entitled to get the above said claim, hence this complaint.
3. Upon notice, the opposite party appeared through their counsel and filed the written reply by taking the preliminary objections that the present complaint of the complainant is not maintainable and is liable to be dismissed. It was stated that the Divisional Office of Allahabad insurance company received the information regarding the loss of the insured vehicle i.e. car bearing registration No.PB-18-S-1008 due to the alleged accident. It was further stated that the Divisional Office of Allahabad insurance company deputed Mr. Subash Tewari, Surveyor & Loss Assessor for assessing the loss of the vehicle in question who assessed the loss of the damaged vehicle to the tune of Rs.5,06,776/- and submitted his report to the insurance company. It was also stated that the insurance company has assessed the loss of the damaged vehicle through his Surveyor but the complainant is not entitled for the same as at the time of accident the driver of the complainant was not having valid and effective driving license to drive the vehicle in question. It was stated that after getting the information regarding the loss of the vehicle the insurance company deputed Mr.Sandeep Dutta, Investigator of Amritsar to verify the Driving License of the driver namely Kuldeep Raj son of Sh.Chuni Lal who was driving the above said vehicle at the time alleged accident. It was stated that complainant had supplied the driving license of the driver at the time of lodging the claim with the insurance company. It was further stated that the said Investigator made the verification regarding the driving license and as per his verification report dated 11.11.2013 conducted from District Transport Officer, Amritsar the said driving license was found fake which was never been issued by the said authority. It was stated that as per the terms and conditions of the policy in question complainant is not entitled for getting the claim and opposite party has rightly repudiated the claim of the complainant vide letter dated 31.12.2013. On merit, it was admitted that complainant is the owner of the vehicle bearing registration No.PB-18-S-1008 which was insured with the opposite party. It was also admitted that complainant has submitted the bills of the repair of the vehicle to the opposite party but it was denied that complainant is entitled for the same. Remaining contents of the reply have already been discussed in the preliminary objections. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with exemplary costs.
- Counsel for the complainant tendered into evidence affidavit of the complainant Ex.C1 alongwith other documents Ex.C2 to Ex.C10 and closed the evidence.
- Concerned Divisional Manager of the opposite party has tendered into evidence his own affidavit Ex.OP-1 alongwith other documents Ex.OP-2 to Ex.OP-9 and closed the evidence.
6. We have duly considered the pleadings of both the parties; heard the arguments advanced by their counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purpose of adjudication of the present complaint.
7. From the pleadings and evidence on record it is an admitted case of both the parties that the complainant obtained an insurance policy bearing No.2002023113P179782235 dated 7.3.20012 for his vehicle “Toyota Kirloskar Fortuner” No.PB-18-S-1008 and as such is a consumer of the opposite party. The case of the complainant is that while going to Allahabad the said insured vehicle met with an accident and got badly damaged. The company was duly informed and even the loss was also assessed by the authorised surveyor of the opposite party. However, the claim was rejected by the insurance company only on the ground that the driver of the complainant was not having a valid and effective driving license to drive the vehicle in question. It is the case of the opposite party that immediately after receiving information of loss of vehicle, the company appointed Mr.Sandeep Dutta, Investigator to verify the driving license of the driver namely Sh.Kuldeep Raj son of Sh.Chuni Lal who was actually driving the vehicle in question at the time of accident. As per the investigator report, the driving license of the driver was found to be fake and as such the claim of the complainant was repudiated vide letter dated 31.12.2013.
8. From the entire above discussion we find that the opposite party has simply rejected the claim of the complainant on the report of its investigator to the effect that the driving license is fake. It is open to the insurer to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken the onus is on the insurer. But even after it is proved that the driving license was fake, whether there is any liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving license. Thereafter he has to satisfy as to the competence of the driver. If satisfied in this regard also, it can be said that the owner had taken reasonable case in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that; to the extent of verifying the genuineness of the driving license with the Licensing Authority before hiring the services of the driver. The owner is not expected to find out whether the license has in fact been issued by a competent authority or not. We find it rather strange that insurance company expect owners to make inquiries with RTO's, which are spread all over the country, whether the driving license is valid or not. Thus we find that in order to avoid liability it is not sufficient to show that the person driving was not duly licensed. The insurance company must prove that the owner/insured was aware or had knowledge and noticed that the license was fake and still permitted that person to drive. The Hon'ble Supreme Court has held in case titled as National Insurance Company Ltd. Vs. Laxmi Narain Dhut, 2007 (2) CCC 47 (SC) that “Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time are not in themselves defences 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 vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time”. The above noted judgment was also relied by the Hon'ble Supreme Court in a recent case titled as Pepsu Road Transport Corporation Vs. National Insurance Company reported in 2013 (3) ACJ 315 (S.C.) Whereby the Hon'ble Supreme Court has held that the insurance company is liable to pay compensation.
9. Hence in view of the law laid down by the Hon'ble Supreme Court we are of the view that insurance company has failed to prove that the owner/insured in the present complaint had knowledge and previous notice to the effect that the driver is not duly licensed by competent authority. It failed to prove that due reasonable care was not taken by theinsured for employing a person to drive the vehicle and as such have wrongly repudiated the genuine claim of the complainant. Hence as the vehicle way duly surveyed by of the surveyor of the opposite party who has assessed the loss of the damaged vehicle to the tune of Rs.506776/-, we direct the opposite party to pay the amount as per their surveyor report. Opposite party is also directed to pay Rs.5000/- as compensation as well as Rs.3000/- as litigation expenses to the complainant within 30 days of the receipt of the copy of these orders otherwise the aggregate amount shall carry an interest @ 9% P.A. from the date of orders till actual payment.
10. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
March 16, 2015 Member.
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