H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 24/2007.

Date of Decision 30.3.2009.

The New India Assurance Co. Ltd. Dev Paul Chowk, Hamirpur

through its Senior Divisional Manager IIIrd Floor, Block No.7,

SDA Complex, Shimla 171 009.

……..Appellant.

Versus



Sh. Ashok Kumar S/o Sh. Gouri Saran Ro VPO Jhakhari,

presently residing VPO Pansai, Tehsil Nadaun, Distt. Hamirpur, HP.

…….Respondent.

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? No.



For the Appellant. Mr. Ratish Sharma, Advocate.



For the Respondent. Mr. Shashi Bhushan Singh Chandel, Advocate.





O R D E R:



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



Admitted facts giving rise to this appeal are, that vehicle bearing registration No. HP-06-1235 was insured under a valid policy of insurance with the appellant when it met with accident on 8.5.1996. On receipt of intimation regarding accident surveyor was appointed by the appellant who assessed the loss to the vehicle in the sum of Rs. 1,18,422/-. Instead of settling the claim it repudiated the claim in October, 1996 on the ground that the driver of the vehicle at the time of accident namely Sh. Bam Dev was not having a valid and effective driving licence. This resulted in filing of Complaint No. 1/97 (17/98)/286/2003. Vide order dated 13th October, 1999 this complaint was allowed.

2. Feeling aggrieved by the order of the District Forum below, Appeal No. 266/1999 was filed by the appellant in this Commission. It was allowed on 13.8.2002, in the following terms:-

“For the reasons recorded above, the impugned order is set aside and the case is remitted back to the learned Forum below to decide the application for summoning Registering & Licensing Authority, Gwalior (M.P.) alongwith record of driving licence No. P-29354/84 issued in the name of Shri Bam Dev son of Mansha Ram, dated 28.6.1984 on merits, after affording the complainant/respondent an opportunity of filing reply to the same. In the light of the order passed on the said application, the main complaint shall be then heard and disposed of in accordance with law by the learned Forum below. Record of the case be transmitted forthwith. The parties through their learned Counsel are directed to appear there on 30.10.2002. Appeal is disposed of.”



3. After the appeal had been allowed in the above extracted terms, Sh. Chander Shekher Advocate, Naudan was appointed as Local Commissioner to get the report from the Licensing Authority (RTO) Gwalior relating to driving licence no. P-29354/84 issued on 28.6.1994. Report of the Local Commissioner is at page 88 of the complaint file, original receipt of deposit is at page 89. Similarly at page 90 of the complaint file is the application submitted by the Local Commissioner, Sh. Chander Shekher, Advocate to the Regional Transport Authority, Gwalior on the subject for inspection of the record of the driving licence in question. At the bottom there is endorsement which when translated into English reads as under:-

“Returned in the original with the endorsement that as per records, the above licence Sr. No. P-29354/84, issued on dated 28.6.84 has not been found to have been issued by this office.

Sd/-

Seal of Licensing Authority Licensing Authority

(RTO) Gwalior Gwalior (MP) 4.10.06

(Stamp)”





4. Objections to this report were filed on behalf of the respondent. However those were not pressed as is evident from the zimni order of the said date i.e. 29.11.2006. Complaint was allowed on 19.12.2006 in the following terms:-

“The opposite party is ordered and directed to pay to the complainant a sum of Rs. 1,18,422/- (-) Rs. 1000/- the salvage value i.e. Rs. 1,17,422/- with interest @ 9% per annum from the date of filing the complaint i.e. 24.01.1997 till realization of the amount, besides litigation cost, which we assess at Rs. 1000/-. Certified copy of this order, be supplied to the parties, free of cost. The file after its due completion, be consigned to record room.”

Hence this appeal.



5. Mr. Sharma learned counsel for the appellant submitted that assuming everything for the sake of argument without admitting to be correct against his client, fact remains that the licence in question of the driver Bam Dev who was on the wheel at the time of accident has been conclusively proved to be fake as is evident from the report of Local Commissioner, as well as the endorsement made on the application of the Local Commissioner by the Licensing Authority concerned from Gwalior. This report has not been controverted by any authentic, muchless reliable and or trustworthy evidence produced by the respondent before the District Forum below. That being the position on proved facts, this appeal deserves to be allowed on this short ground alone per Mr. Sharma. On the other hand Mr. Chandel learned counsel for the respondent submitted that his client bonafide inspected the licence shown by the driver who was driving the vehicle in question in a proper manner without any fault, as such for acts of driver, his client should not be made to suffer, thus he prayed for upholding the impugned order. This submission we are noting simply to be rejected.

6. Reason being that what is fake has no existence in the eyes of law, it is in fact non-est and its subsequent renewal will not validate what was initially fake/fraudulent. That being the position this is a case of no licence in accordance with the provisions of Motor Vehicles Act, 1988 being there in favour of the driver Bam Dev who was driving the vehicle in question at the time of its accident. For taking this view we are supported by a decision of the Hon’ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Davinder Singh, IV (2007) CPJ 1 (SC) and Oriental Insurance Co. Ltd. Vs. Rishi Jaiswal & Anr., II (2007) CPJ 97 (NC). So far decisions relied upon by the District Forum below while allowing the complaint are concerned, no benefit can be derived by the respondent on account of the above referred decisions of the Hon’ble Supreme Court and National Commission.

7. And above all the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, III (2007) CPJ 13 (SC) has held as under:-

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



(1) The decision in Swaran Singh’s case (supra) 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) The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act.



The High Courts/Commissions shall now consider the matter afresh in the light of the position in law as delineated above.”



These directions completely negate the plea urged on behalf of the respondent.

8. Nothing to the contrary has been brought to our notice on behalf of the respondent.

9. No other point is urged.

In view of the aforesaid discussion this appeal deserves to be allowed. Ordered accordingly, and as a consequence of it, order dated 19.12.2006 passed by District Forum Hamirpur, Camp at Barsar in Consumer Complaint No. 1/97 (17/98)/288/2003 is hereby quashed and set aside and consequently complaint filed by the respondent stands dismissed, leaving the parties to bear their own costs.

All interim orders passed from time to time in this appeal are hereby vacated forthwith. Entire deposited amount with upto date interest accrued on it will be remitted by the office to the appellant-insurance company.

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



Shimla.

30th March, 2009 (Justice Arun Kumar Goel) Retd.

/K/ President.





(Saroj Sharma)

Member.



(Chander Shekher Sharma)

Member.