H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 222/2007.

Date of Decision 18.3.2009.

1. Oriental Insurance Company Ltd. through its

Divisional Manager Mythe Estate, Upper Kaithu

Shimla 171 003, through its Senior Divisional Manager.,



2. Branch Manager Oriental Insurance Company

Ltd. The Mall, Solan. HP.



……..Appellants.

Versus



Sh. K.S. Guleria, S/o late Sh. K.R. Guleria, Block No. 29,

Quarter No. 580 Postal Colony, New Shimla 171 009.



…….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? Yes.



For the Appellants. Mr. Deepak Gupta, Advocate



For the Respondent. Mr. Peeyush Verma, Advocate.





O R D E R:



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



Appellant-Insurance company has filed this appeal against the order dated 12.4.2007, passed by District Forum Shimla, in Consumer Complaint No. 243/2003. While allowing the complaint, appellant has been directed to pay Rs. 78,929/- along with interest @ 9% per annum from the date of filing of the complaint, i.e. 31.5.2003 till realization, besides cost of Rs. 2500/-.

2. Tata Sumo vehicle bearing registration No HP-23-3274 being insured on 16.10.2001 when it met with accident under a valid policy of insurance is not in dispute. According to respondent, he spent Rs. 1.20 lacs for its repair, whereas per the report of the surveyor Mr. Rajesh Kumar appointed by the appellant, loss sustained by the respondent was to the extent of Rs. 78,929/-. His report is Annexure R-II dated 9.11.2001. Defence of the appellant was that licence of the driver Krishan Chand S/o Sh. Barfu Ram who was on the wheel at the time of accident was found to be fake. District Forum below after placing reliance on the decision of Supreme Court in the case of United India Insurance Company Vs. Lehru and others, JT 2003 (2) SC 595, as well as on the decision of Madhya Pradesh State Consumer Commission in the case of Oriental Insurance Co. Ltd. Vs. Lekhiram, III (1997) CPJ 179 allowed the complaint, hence this appeal.

3. When matter was taken up for hearing, following order was passed on 23.12.2008:-

“Only ground urged in support of this appeal at the time of hearing was, that the driver Shri Krishan Chand was not having a valid and effective driving licence at the time of accident. Mr. Gupta learned counsel for the appellant in support of his submission urged that an application was filed before the District Forum below for summoning the record of driving licence of Registration and Licensing Authority, Una. It was disposed of on 22.9.2003 in the following terms:-



“Reply filed. An application for summoning the record of driving licence of R & LA Una has also been moved on behalf of the OP-company. No reply is sought to be filed on behalf of the complainant. Therefore, the application in hand is allowed and it is ordered that the R & LA Una on production of the copy of this order before it, shall issue the necessary certificate/report regarding the driving licence of the driver namely Krishan Chand.

Let the evidence by the complainant be filed now on 20.11.2003.”



Pursuant to this order, Mr. H.P. Singh, Surveyor and Loss Assessor approached the said authority and submitted his report, photocopy whereof is Annexure R-V on page 73 of the complaint file. Reference was also made by Mr. Gupta to Annexure R-III report of Chander Shekhar Mechanical Engineer. Copy of this is at pages 67-69 of the complaint file. It is felt that with a view to come to a correct conclusion, as well as for doing complete justice between the parties, original record of driving licence No. 1471/2000-2001, dated 8.1.2000 issued in favour of Krishan Chand S/o Shri Barfu Ram R/o Village Brang, Tehsil Sarkaghat, District Mandi, HP needs to be summoned from the RLA (MV) Una. Accordingly the said authority is directed to produce or cause to be produced the original record of motor driving licence containing application etc. maintained in the office pertaining to this licence as also the original register of driving licence containing the above entry. It is made clear to the parties that in case licence if found to be fake expenses of the witness shall be borne by the respondent, and in case it is found to be genuine, then by the insurance company. Notice be issued to the said Authority to produce or caused to be produced the record on 18.3.2009.”



4. Pursuant to this order licensing clerk from the office of Registering and Licensing Authority, Una was present along with the original record relating to driving licence No. 1471. At the risk of repetition it may be noted here, that this was the licence number vide which authority at Una had issued licence in favour of Krishan Chand S/o Sh. Barfu Ram, R/o Vill. Barang, Tehsil Sarkaghat, District Mandi, HP who was driver as per version of the respondent, of the vehicle at the time of accident given to the appellant.

5. Whereas from the original record produced by the licensing clerk today from the said office at Una, Licence No. 1471 was issued in favour of one Sh. Surjit Singh S/o Sh. Rawan Ram, R/o Vill. Bhali, Tehsil Jawali, District Kangra, HP. It was meant for LMV (Tpt) and it was valid from 6.6.2000 to 5.6.2003.

6. In the light of this factual position, we called upon Mr. Verma learned counsel for the appellant to support the order of the District Forum below. According to him his client bonafide believed the driver regarding genuineness of his licence, as such he prayed for upholding the order impugned in this appeal. This plea prima facie appears to be innocent, but its hollowness is exposed in the face of the defence of the appellant before the District Forum below, as also on the basis of the original record relating to driving licence produced by the official today. We may notice in this behalf that the original record was examined by learned counsel for both the parties.

7. Suffice it to say in this behalf, that law recognizes a driving licence issued under, as well as in accordance with the provisions of Motor Vehicles Act, 1988 and the rules framed thereunder. Therefore, unless a driving licence is issued by competent authority under law, it does not authorize a person like driver Krishan Chand in this appeal, to drive the vehicle. In case the licence of Krishan Chand is non-est in the eyes of law it is void-ab-initio, therefore it has no existence in the eyes of law. What is non-est in the eyes of law as is the situation in the appeal before us having been found to be fake on the basis of contemporaneous official record, cannot be even validated by its subsequent renewal. Because question of renewal would only arise when there is something existing in law.

8. On the basis of the record of the complaint file, we are satisfied that appellant was successful in establishing that the driving licence of Krishan Chand was not issued by the authority from which it was purported to have been issued in his favour. This aspect of the case according to us has not been properly and legally dealt with by the District Forum below. It further fell into error by relying on the decision of the Hon’ble Supreme Court in the case of United India Insurance Company Vs. Lehru and others, as well as of Oriental Insurance Co. Ltd. Vs. Lekhiram decided by Madhya Pradesh State Commission supra, by ignoring the latest position of law settled in this behalf with particular reference to a case of driving licence that was found to be fake. In this behalf reliance is being placed on decisions of the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, 2007 CTJ 445 (Supreme Court) (CP) and United India Insurance Co. Ltd. Vs. Davinder Singh, 2008 CTJ 11 (Supreme Court (CP).

9. No other point is urged.

In view of the aforesaid discussion this appeal deserves to be allowed. Ordered accordingly. Thus while allowing this appeal order passed by District Forum Shimla, in Consumer Complaint No. 243/2003, passed by District Forum Shimla, dated 12.4.2007 is hereby quashed and set aside, and as a result of it the complaint is dismissed, leaving the parties to bear their own costs.

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.

Office is directed to remit the entire deposited amount to the appellant- Insurance Company with up-to-date interest accrued on it.



Shimla.

18th March, 2009 (Justice Arun Kumar Goel) Retd.

/K/ President.





(Saroj Sharma)

Member.



(Chander Shekher Sharma)

Member.