H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 192/2008.

Date of Decision 8.5.2009.

Oriental Insurance Company Limited through its

Senior Divisional Manager, Divisional Office, Mythe

Estate Kaithu, Shimla-3.

……..Appellant.

Versus



1. Shri Aman Deep Sharma son of late Shri Salig Ram.,



2. Smt. Saneh Lata widow of late Shri Salig Ram both

R/o Vill. Dughali, PO Dughali, Tehsil Bhoranj,

District Hamirpur, HP.

…….Respondents.

Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether Approved for reporting? Yes.



For the Appellant. Dr. Lalit K. Sharma, Advocate.



For the Respondents. Mr. Ashish Jamalta, Advocate.



O R D E R:







Justice Arun Kumar Goel (Retd.) President (Oral)



Only ground urged in support of this appeal by Dr. Sharma is, that in the face of the licence of the driver Shri Dharam Singh S/o Shri Gulabu Ram of the vehicle who was on the wheel at the time of accident having been proved to be fake, District Forum below fell into error while allowing the Consumer Complaint No. 127/2006 vide impugned order dated 12.6.2008.

2. Respondent being owner of L&T/JCB machine No. M/C Sr. No. 2647, the same being insured under a valid policy of insurance with the appellant on 20.11.2004 when it met with accident is admitted between the parties. At the time of accident Dharam Singh driver alongwith Kultar Singh his helper was coming from Hamirpur after getting diesel, at Pung Khad at about 12:00 noon, this machine met with accident and fell down 300 meters deep in the khad and was thus totally damaged. It being insured for Rs. 10 lacs is again admitted. On receipt of intimation regarding accident matter was got investigated and the loss was also got assessed. Finally claim of the respondent was repudiated on the ground that the driving licence of the driver was found to be not genuine. Stand of the appellant was that at the time of accident, the person who was driving the machine was not holding a valid and effective driving licence to drive the vehicle in question, thus it was not liable to indemnify. Driving licence being non-est was set out as the main defence while contesting the claim of the respondent, as it was fake. Appellant had got done the spot survey from Shri Vinod Sharma, Surveyor-cum-Loss Assessor on 10.12.2004. Vide his report dated 22.1.2005, he recommended the loss subject to terms and conditions of the insurance policy in the sum of Rs. 8.95 lacs on net of salvage basis. District Forum below after considering the pleadings of the parties, taking note of the evidence produced by both the sides and after hearing them has directed the appellant to pay Rs. 8.95 lacs to the respondent, alongwith 9% interest from the date of complaint till realization, besides Rs. 2,000/- as cost of litigation, hence this appeal.

3. In case we accept the submission of Dr. Sharma, then this appeal has to be allowed by setting aside the impugned order, otherwise consequence is obvious.

4. Dr. Sharma, referred to Annexure R-5 photostat copy of driving licence of the driver Dharam Singh S/o Shri Gulabu Ram who was admitted driver at the time of accident of the vehicle, and to the application dated 5.2.2005 from Er. Rajneesh Kumar Dhiman addressed to the Registering & Licensing Authority, Shimla (Urban) regarding verification of driving licence of Dharam Singh. Endorsement of the said authority in original is there on this application, it was also relied upon on behalf of the appellant. Dr. Sharma also laid great emphasis on the affidavit of Er. Rajneesh Kumar Dhiman filed in evidence to support the case of the appellant that the driving licence of Dharam Singh was fake. This affidavit is at pages 41-42 of the complaint file. He urged that it is proved beyond any shadow of doubt that the licence in question, i.e., Annexure R-5 of Dharam Singh driver had not been issued by the Licensing Authority, at Shimla.

5. On the other hand learned counsel for the respondent submitted that affidavit of Er. Rajneesh Kumar Dhiman, application given by him alongwith endorsement on it, as well as Annexure R-5 all need to be ignored. Reason being that best evidence in this case should have been summoned, i.e., the record from the concerned Licensing Authority and then it should have been got proved as per law. He further submitted that witnesses could be summoned by the appellant, but for reasons best known to it, none was summoned. Learned counsel further pointed out that the Surveyor and Loss Assessor Er. Aruneesh Gautam has supported the claim of his client so far renewal of licence at Hamirpur was concerned. Endorsement further mentions that the driving licence had been issued by Registering & Licensing Authority, Shimla as per report of the said office at Hamirpur.

6. We are of the view that no benefit can be derived by the appellant from the endorsement of the Authority at Hamirpur regarding issuance of licence by the Shimla Authority, when it was renewed by the former. Reason being that the renewing authority was admittedly not the original authority who had issued the driving licence in question. On the basis of its record, it is mentioned that it had been issued by the Licensing Authority at Shimla. So far Shimla Authority is concerned, it has denied having issued any licence in favour of Dharam Singh driver. This fact is reinforced from the affidavit of person who had applied to the authority concerned for verification of the licence as to whether it had been issued or not. Suffice it to say in this behalf, that in case the respondent was of the view that the license had been issued by the authority at Shimla, then he should have either asked the District Forum below to summon Er. Rajneesh Kumar Dhiman for his cross-examination, or alternatively with a view to controvert this affidavit, he should have got the licensing authority summoned as a witness in rebuttal. None of these courses were adopted by the respondent, why learned counsel had no answer. In fact there is no rebuttal to endorsement of licensing authority made on the application of Er. Rajneesh Kumar Dhiman or his affidavit filed in support the plea of the appellant.

7. So far plea urged on behalf of the respondent, that the list of witnesses was filed by the appellant, as such he did not ask for cross-examination of the Er. Rajneesh Kumar Dhiman is concerned, it has no merit because strict rules of evidence do not apply in the proceedings before the Foras. Besides this, we find no reason to discard the affidavit of Er. Rajneesh Kumar Dhiman, and or his application which contains the original endorsement regarding non issuance of driving licence by the authority at Shimla in favour of the driver Dharam Singh.

8. Faced with this situation, learned counsel for the respondent submitted that while proving that the licence was fake, appellant is also further required to prove that his client had the knowledge/notice that licence was fake, and still he permitted the driver to drive the vehicle. In support of this contention, he referred to a decision of Hon’ble Supreme Court in the case of Premkumari & Ors. Vs. Prahlad Dev & Ors., AIR 2008 Supreme Court 1073. When a reference is made to this decision, it is evident that Hon’ble Supreme Court was considering the question in the context of the claim of a third party and the liability of the insurer in such a case, and not of an own damage claim as is the situation in the appeal before us.

9. Qua third party liability in its earlier decision in the case of National Insurance Company Limited. Vs. Swaran Singh & Ors., 2004 (3) SCC 297, Apex Court has taken identical view. Principles governing such cases were summarized in its paragraph 110 by the Hon’ble Supreme Court in this decision. This view has been reiterated its later decision (supra), while dealing with the claim of a third party vis-à-vis of the owner and insurer of the vehicle in question.

10. Own damage claim was not the issue in the two decisions of Hon’ble Supreme Court (supra), and therefore no benefit can be derived from those in the present appeal, as was forcefully urged on behalf of the respondent by his learned counsel, that his client was not aware regarding driving licence of Dharam Singh being fake and or his having permitted the driver to continue driving despite having knowledge that his licence was fake. This plea is wholly irrelevant in the context of own damage claim. We may reiterate here that in none of the above two decisions of the Hon’ble Supreme Court, issue regarding own damage claim was gone into, as it was not involved. As already observed the Apex Court was examining liability of an insurer in a claim of a third party claim. In these circumstances any observation made/finding recorded by the Hon’ble Supreme Court and relied upon on behalf of the respondent cannot be read out of the context wherein it was made.

11. In our opinion case of a third party claim and of own damage claim are on totally different footing.

12. On the other hand, the issue regarding own damage claim where a licence was found to be fake was the direct question arising out of an appeal under Consumer Protection Act, 1986 had come up for consideration before the Apex Court in the case of National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, (2007) 3 SCC 700. What was held and fully covers the present appeal before us, both on law as well as on facts was as under:-

“38. In view of the above analysis the following situations emerge:

1. The decision in Swaran Singh case has no application to cases other than third-party risks.

2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality.

3. In case of third-party risks the insurer has to indemnify the amount, and if so advised, to recover the same from the insured.

4. That concept of purposive interpretation has no application to cases relatable to Section 149 of the Act.”



13. It hardly needs to be clarified that what is proved to be fake, is non-est in the eyes of law. Therefore, what is not in existence cannot be validated by its subsequent renewal. Question of renewal would only arise when there is something existing in law. That being the position, and driving licence on which reliance is placed on behalf of the respondent is no driving licence in the eyes of law, as such the impugned order cannot be sustained in any circumstances whatsoever.

14. To similar effect is a recent judgment of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Harbhajan Lal., IV (2008) CPJ 35 (SC) arising under Consumer Protection Act, 1986. In this case District Forum below had dismissed the complaint on the ground that driving licence was forged one. Appeal was allowed by the State Commission by reversing the order of District Forum after placing reliance on the decision by the Apex Court in the case of National Insurance Company Limited Vs. Swaran Singh & Ors. (supra). This order of the State Commission was affirmed by the National Commission. Appeal of the insurance company was allowed by the Apex Court in the following terms:-

“3. Learned Counsel appearing on behalf of the appellant submitted that the judgment rendered by this Court in the case of Swaran Singh (supra) was applicable only in relation to the case of third party. In the present case, no complaint was filed by third party but the complaint was filed by the insured. Learned Counsel appearing on behalf of the appellant stated that it has been clarified by this Court in the case of National Insurance Company Limited V. Laxmi Narain Dhut, III (2007) CPJ 13 (SC)=II (2007) ACC 28 (SC)-IV (2007) SLT 102=2007(3) SCC 700, that the ratio laid down in the case of Swaran Singh (supra) would apply only in relation to the cases of third party and not in relation to the own damaged cases, in which eventuality the insurer is only liable to show that the licence was fake one.

4. Accordingly, the appeal is allowed, impugned orders rendered by the State Commission and the National Commission are set aside and the same passed by the District Forum dismissing the complaint is restored:”



15. Findings recorded by the Motor Accident Claims Tribunal, Fast Track Court, Hamirpur in Smt. Urmila Devi Vs. Salig Ram &Others, Case No. MAC Petition 28 of 2005/RBT. 24/05, on issue No.5 were pressed into service on behalf of the appellant. This issue was as under:-

“5 whether the respondent No.2 was not holding a valid and effective driving licence to drive the category of the vehicle as alleged ? If so, its effect ? OPR-3.



Finding recorded on this issue is in the affirmative, that he was not holding any driving licence. Moreover while finally allowing the claim petition of Urmila Devi, (petitioner), only Salig Ram respondent before us in this appeal was held liable for payment of compensation. This is an additional reason to allow the appeal and negate all the pleas urged on behalf of the appellant. Salig Ram, Dharam Singh and the Oriental Insurance Company Ltd. respectively were the respondent Nos. 1 to 3 before the MACT in this petition.

16. No other point is urged.

In view of the aforesaid discussion while allowing this appeal, order passed by District Forum Hamirpur, in Consumer Complaint No. 127/2006 dated 12.6.2008 is hereby quashed and set aside and as a result of it said complaint is dismissed.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla.

8th May, 2009. (Justice Arun Kumar Goel) Retd.

Karan* President.





(Saroj Sharma)

Member.



(Chander Shekher Sharma)

Member.