H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.

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FIRST APPEAL NO.514/2007

DATE OF DECISION: 9.03.2009.



In the matter of:



National Insurance Company Ltd. through its Branch Manager, Moti Bazar, Mandi, H.P.

… … Appellant.



Versus



Sh. Mani Lal Sharma son of late Sh. Puran Chand Sharma, resident of Village and P.O. Manglore, Tehsil Banjar, District Kullu, H.P.

… … Respondent.

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Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting? No



For the Appellant: Mr. Varinder Tajta, Advocate.

For the Respondent: Ms Leena Guleria, Advocate.

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O R D E R



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





1. Vehicle bearing Registration No.HP-49-A-0247 being insured with the appellant in the sum of Rs.4,32,000/- on the date of accident i.e. 23.8.2005 is not in dispute. After receipt of intimation regarding accident, appellant deputed Surveyor and authorised dealer worked out the cost of repair at Rs.3,98,140/-. Because the total cost of repair exceeded 75% of the Insured’s Declared Value (I.D.V.) of the vehicle, this was a case to be treated on total loss basis.



2. Instead of settling the claim and paying the amount, the same was repudiated by the appellant. This resulted in filing of Complaint No.210/2007 before the District Forum below.



3. When put to notice, appellant contested the complaint mainly on the plea that the driving licence of Shri Madan Singh, driver, was found to be fake and qua the compensation its defence was that the registered Surveyor had assessed the loss of the vehicle of the respondent at Rs.2,00,000/- on net of salvage basis. Reliance was also placed on the consent letter dated 9.2.2006 for this amount on net of salvage basis. Further defence of the appellant was that this sum is payable subject to fulfilment of policy conditions as well as compliance with the provisions of the Motor Vehicles Act, 1988, relating to the driving licence of the driver who was on the wheel at the time of accident.



4. District Forum below while allowing this complaint has directed the appellant to pay Rs.2,50,000/- with 9% interest from the date of institution of the complaint i.e. 29.8.2007 till payment alongwith cost of Rs.2,000/-. Hence, this appeal.



5. Shri Tajta, learned Counsel for the appellant submitted that, in the face of Annexure O.6 dated 21.2.2005, report given by Shri Raj Kumar Sharma, Surveyor and Loss Assessor, the complaint could not have been allowed in any circumstance whatsoever because this document clearly established that the driving licence of Shri Madan Singh was found to be fake as it had not been issued by the Registering & Licensing Authority, Una. Further according to Shri Tajta even if it be assumed for the sake of argument without admitting that the licence was not fake, compensation assessed could not have been allowed in the sum of Rs.50,000/- as directed in the impugned order when interest was allowed on a sum of Rs.2,00,000/-. Both these pleas have been seriously contested and resisted by Ms Guleria on behalf of the respondent. According to her, Annexure O.6, the document relied upon on behalf of the appellant is not worth the paper on which it is written. What is mentioned in it cannot be accepted on its face value in the absence of there being anything to further support the same. Regarding compensation, she submitted that her client had been deprived of the earning because of non settlement of her client’s claim within reasonable time, therefore, no exception can be taken to it and the same may be upheld.



6. After having heard learned Counsel for the parties and having given thoughtful consideration to the material on the complaint file, we are of the view that this complaint needs to be partly allowed for the reasons to be recorded hereinafter.



7. We are alive to the situation that when a driving licence which is initially fake, its subsequent renewal will not validate the same. Because of the fact that what is fake is non-est in the eyes of law being void ab initio. A valid and effective driving licence could be issued by the competent authority authorised under the Motor Vehicles Act.



8. In our opinion in order to succeed on the basis of Annexure O.6, we are of the view that the appellant was duty bound to have placed on record the affidavit atleast of the person who obtained the information from the Registering & Licensing Authority, Una, more especially when he also mentioned that due to unavoidable circumstances the authority did not give in writing despite his having written an application for written comments. This was the minimum that was expected of the appellant. Faced with this situation, Shri Tajta forcefully urged that the affidavit of Shri Raj Kumar Sharma was not necessary because he has stated something on the basis of the contemporaneous official record. He however hastened to add that there is affidavit of the principal officer of his client Ms Neena Sharma which supports the report of Shri Raj Kumar Sharma, Annexure O.6. Admittedly she is not the person who had either personally examined and record and/or had performed any act in the matter relating to verifying the genuineness or otherwise of the licence in question. In para-4 of her affidavit she has stated that she relies upon a number of documents, Annexure O.6 is one of those. Why affidavit of Shri Raj Kumar Sharma was not filed, Shri Tajta had no answer save and except that at best it can be termed to be an omission, but according to him in the face of affidavit of Ms Neena Sharma principal officer of the appellant, non filing of affidavit of Shri Raj Kumar Sharma does not make any difference. This plea is being noted imply to be rejected. Reference was made to the decision of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. Versus Laxmi Narain Dhut, 2007 CTJ 445 (Supreme Court) (CP) The question of applicability of the principles laid down in this judgment would only arise when there is acceptable and trustworthy evidence produced by the appellant to support its plea that the driving licence of the driver was fake. There is none as already observed. Therefore, submission of Shri Tajta based on Annexure O.6 is hereby rejected.



9. Another reason to reject this plea is, that if the Registering and Licensing Authority was not willing to give anything in black and white, affidavit of the Surveyor also had not been filed, even then appellant could have applied to the District Forum below for summoning the concerned Licensing Authority to produce or cause to be produced the original record relating to the driving licence in question. Complaint file shows that no such attempt was made. Therefore, on this ground also the submission of Shri Tajta based on Annexure O.6 merits rejection.



10. So far compensation part is concerned, we feel that besides being penal in nature though Ms Guleria learned Counsel for the respondent submitted that it is on lower side, however while upholding the plea urged on behalf of the appellant, we feel that interest of justice will be well served, if it is reduced to Rs.5,000/-.



11. In addition to this, we are also of the view that on the sum of Rs.5,000/- now allowed as compensation, interest will not be payable.



12. No other point was urged.



In view of the aforesaid discussion, while partly allowing this appeal, order of the District Forum below is modified in the following terms:-



(a) Appellant is liable to pay Rs.2,00,000/- and this sum will carry interest at the rate and from the date till payment as awarded by the District Forum below;



(b) Cost assessed by the District Forum below is upheld; and





(c) Respondent is held entitled to rs.5,000/- only as compensation instead of what was awarded by the District Forum below and this amount shall not carry any interest.



Appeal stands finally disposed of subject to above modification, leaving the parties to bear their own costs.



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



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



Shimla,

March 9, 2009.



( Justice Arun Kumar Goel ) (Retd.)

President





( Saroj Sharma )

Member.





( Chander Shekhar Sharma)

/BS/ Member.