1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 19.03.2019 of the State Consumer Disputes Redressal Commission, Himachal Pradesh, Shimla (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 252/2017 in which order dated 04.08.2017, District Consumer Disputes Redressal Forum, Shimla (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 285/2015 was challenged, inter alia praying to set aside the order passed by the State Commission.

2.       While the Revision Petitioner (hereinafter also referred to as OP) was Respondent before the State Commission and OP before the District Forum, the Respondent (hereinafter also referred to as complainant) was Appellant before the State Commission and complainant before the District Forum.

3.   Notice was issued to the Respondent. On account of absence of respondent despite service, vide order dated 08.11.2023, respondent was proceeded ex-parte. Petitioner/OP filed Written Arguments/Synopsis on 07.11.2023.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that Mr. Jawahar Lal, the complainant, is the owner of vehicle No. HP-33-9256, which met with an accident at Firnu Curve near Narkanda on 23.07.2015, ten days after purchase. An FIR was lodged at the Kumarsain Police Station, Tehsil Kumarsain, District Shimla, H.P. The vehicle was insured with the OP from 13.07.2015 to 12.07.2016 for Own Damage (O.D) claim. Due to the accident, the vehicle suffered total loss. Despite informing the OP and submitting the claim, they failed to settle it, leading to alleged deficiency in service. Consequently the complainant filed a complaint in Consumer Forum.

5.       Vide Order dated 04.08.2017, in the CC no. 285/2015 the District Forum has dismissed the complaint. Aggrieved by the said Order dated 04.08.2017 of District Forum, complainant appealed in State Commission and the State Commission vide order dated 19.03.2019 in FA No. 252/2017 has directed OP to pay O.D. (Own Damages) claim of Rs. 4,78,550/- alongwith 9% interest p.a. from the date of complaint till actual payment to the complainant; to pay Rs. 10,000/- as compensation and to pay Rs. 10,000/- as litigation cost to the complainant.

6.       Petitioner has challenged the said Order dated 19.03.2019 of the State Commission mainly on following grounds:

1. The State Commission failed to acknowledge the petitioner's/OP’s evidence demonstrating that the driver, Harmohan Thakur, did not possess a valid and effective driving license at the time of the accident. Operating the vehicle without a valid license constitutes a breach of the insurance policy and the Motor Vehicle Act, 1988. The reliance of the State Commission on a No Objection Certificate issued by the District Transport Officer, Tuensang, Nagaland, is misplaced. The document, purportedly validating the driving license of Harmohan Thakur until 14.12.2017, was found to be forged and fictitious. It lacked essential details such as a dispatch number, date, addressee, application or receipt, and purpose, rendering it unreliable.

2. The State Commission's reliance on the aforementioned forged document was erroneous. Contradictory evidence from the same authority, specifically a report from the District Transport Officer, Tuensang, Nagaland, dated 14.06.2018, obtained under the Right to Information Act, 2005, affirmed that the license in question was not issued by the Tuensang Transport Authority, Nagaland. The authenticity of the driving license is doubtful, as it lists the address of the driver, Harmohan Thakur, as belonging to village Chandenilalsa, Tehsil 'Rampur, District Shimla, despite being issued from the State of Nagaland. This issuance contradicts Section 9(1) of the Motor Vehicle Act, 1988, which stipulates that licenses can only be issued by the authority having jurisdiction over the area where the applicant resides or conducts business. Since the driver neither resided nor conducted business in Nagaland, the license issued by the Tuensang, Nagaland authority is invalid.

3. The application of the judgment in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 to the present case by the State Commission is erroneous. The subsequent ruling in National Insurance Co. Ltd. vs Laxmi Narain Dhut (2007) 3 SCC 700 clarifies that the Swaran Singh judgment is applicable only to third-party risks, not own damage claims. Therefore, the owner, Jawaher Lal, cannot claim ignorance regarding the validity of the driver's license, Harmohan Thakur. Furthermore, Harmohan Thakur's license was valid only for Light Motor Vehicles (LMV), whereas he was operating a Transport vehicle without the necessary endorsement authorizing him to do so. This constitutes a breach of both the Motor Vehicle Act, 1988, and the insurance policy terms and conditions. Consequently, no liability can be imposed on the insurance company/OP when there is a violation of these laws and policies.

4. In addition, the Supreme Court's decision in M/s. Bajaj Alliance General Insurance Co. Ltd. vs. Rambha Devi (Civil Appeal No(s). 841/2018) highlights the distinction in training requirements between transport and non-transport vehicles under Rule 31 of the Motor Vehicle Act. There is no exception provided for transport vehicles classified as Light Motor Vehicles. The Office Memorandum (OM) issued by the Department of Personnel and Training (DoPT) explains the process for obtaining certified copies under the Right to Information (RTI) Act. There is no conflict between Section 76 of the Indian Evidence Act and Section 2(j) of the RTI Act. Both laws grant individuals the right to request certified copies of public documents from the custodian upon payment of relevant fees. Documents certified under the RTI Act hold evidentiary value and can be used in courts as evidence/exhibits.

5. The State Commission erred in disregarding the records provided by the Public Information Officer under the Right to Information Act, 2005, as evidence. These records should have been duly considered in the proceedings. Section 61 of the Evidence Act, 1872, allows for the proof of document contents through either primary or secondary evidence. Section 65 of the same Act outlines conditions where secondary evidence may be admitted. Specifically, Section 65(g) permits certified copies of public documents, as defined in Section 74, to be admitted as secondary evidence. Section 74(1)(iii) specifies that documents forming the acts or records of public officers, legislative, judicial, and executive, are considered public documents. Certified copies required as secondary evidence can be obtained through two possibilities: (I) Section 76 of the Evidence Act and (II) provisions of the Right to Information Act, 2005.

6. Under Section 76 of the Evidence Act, any public officer having custody of a public document must provide a copy to any person entitled to inspect it, upon payment of legal fees. The officer must provide a certificate confirming the copy's accuracy, dated and subscribed with the officer's name and title. Such certified copies are admissible as evidence. However, Section 76 does not specify who is entitled to inspect public documents. Certified copies of documents obtained under the provisions of the Right to Information (RTI) Act are admissible as secondary evidence under Section 63 of the Evidence Act, 1872. This is provided that the court does not have any reason to doubt the reliability and accuracy of these certified copies as faithful reproductions of the original documents held by Government Departments. Therefore, such certified copies obtained through the RTI Act are legitimate and acceptable forms of evidence in legal proceedings.

7.       Heard counsel of Petitioner. On account of absence of respondent despite service, vide order dated 08.11.2023, respondent was proceeded ex-parte.   Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

1. The counsel for the petitioners/OPs argue that the State Commission overlooked crucial facts and evidence indicating that the driver, Harmohan Thakur, lacked a valid driving license at the time of the accident. The license presented, numbered 22590/TSG/PROF/2010, was found to be forged and fictitious through responses to Right to Information (RTI) queries from the District Transport Officer (DTO) in Tuensang, Nagaland. Additionally, discrepancies such as the driver's address in Shimla and the license being issued from Nagaland suggest its illegitimacy and violation of Section 9(1) of the Motor Vehicle Act, 1988.

2. The counsel asserts that the reliance by the State Commission on certain judgments, such as Mukund Dewangan (Supra) and Swaran Singh (Supra), was inappropriate. These judgments, do not apply to the present case, where the authenticity of the driving license itself is in question, rendering the complainant's compliance with policy terms doubtful. The counsel further argued that the State Commission failed to grasp the correct legal position established by the Hon'ble Supreme Court in Laxmi Narain Dhut (Supra). The decision in the Swaran Singh case is not applicable to cases involving own damage, as clarified in the aforementioned judgment. According to this legal precedent, the effect of a fake license must be considered in light of the principles outlined in New India Assurance Co., Shimla v. Kamla and Ors. (2001 (4) SCC 342). Once a license is determined to be fake, its renewal cannot nullify its inherent falsity.  

3. Furthermore, the State Commission overlooked the accuracy of the records provided by the Public Information Officer under the Right to Information Act, 2005. The certified copies of documents obtained under the RTI Act are admissible as secondary evidence under Section 63 of the Evidence Act, 1872, as long as there are no doubts regarding their authenticity. The counsel refers to the Surveyor/Loss Assessor Report, which attributes the accident to over-speeding and negligent driving by the driver, resulting in damages to the vehicle. They argue that since the accident was caused by the driver's negligence, the OP should not be held liable to indemnify the complainant for the loss incurred.

8.        In this case the main contention of the Petitioner/Insurance Company is that the Driver of the vehicle in question which met with an accident was not having a valid driving licence, alleging that the driving licence of the said driver, which is purported to be issued by the District Transport Officer (D.T.O.), Tuesang, Nagaland, is a fake one.  Complainant from their side has placed on record copy of the driving licence of Mr. Harmohan Thakur, which was valid upto 14.12.2017. In this case, the accident took place on 23.07.2015, hence at the time of accident, as per the contentions of the complainant, the driver was having a valid licence.  It is contended by the Petitioner/Insurance Company that as they suspected the veracity of the driving licence especially because the address of the said driver on the licence was that of Shimla, H.P., but driving licence was issued by the D.T.O. in Tuesang, Nagaland.  Their Counsel sought certain information from D.T.O. Tuesang, Nagaland and got the reply dated 02.08.2016 stating that no record has been found/available in respect of the said driving licence in the name of Mr. Harmohan Thakur.  Subsequently, the complainant produced another un-dated No Objection Certificate from the D.T.O., Tuesang, Nagaland, stating that said driving licence in respect of Mr. Harmohan Thakur has been issued from their office and is valid upto 14.12.2017 and that D.T.O., Tuesang, Nagaland has no objection for renewal and authorization of the said driving licence. As the OP/Insurance again suspected the veracity of this document, their Counsel again sought further information under R.T.I. from D.T.O. Tuesang, Nagaland, in which it was re-iterated that no record has been found/available in the name of Mr. Harmohan Thakur.  It is the contention of the Petitioner/Insurance Company that the licence held by the driver Harmohan Thakur was a fake one.  Hence, being in violation of the Motor Vehicle Act, the Insurance Company is entitled to repudiate the claim.  They further contend that as per provisions of the Motor Vehicle Act, driving licence is issued by the authority in whose jurisdiction the applicant resides.  In this case, as the address of the driver given is Shimla, Himachal Pradesh, hence, the issuance of driving licence by the D.T.O. Tuesang, Nagaland becomes suspicious. In this regard, we have noted that form of application for driving licence/renewal of driving licence (Form 2) seeks details of both the present address as well as permanent address of the applicant. Hence, there can be a situation, where the permanent resident of one place temporarily goes to another place for work etc. and seeks his driving licence or its renewal from the transport authority of that place. Of course, the said Form 2 does state that it is the present address which shall be printed on the licence. Hence, in the present case, as the address of licence issued by D.T.O. Nagaland was that of Shimla H.P., OP Insurance Company was having a valid apprehension of likelihood of this licence being fake and hence carrying on further investigations on this aspect. However, in this case, even assuming that based on details obtained by OP under RTI, the driving licence issued in favour of the driver Mr. Harmohan Thakur by the D.T.O., Tuesang, Nagaland is fake, the question arises for determination is whether the Insurance Company can reject the claim on that ground. In this case the owner of the vehicle i.e. complainant has engaged the driver in question.

9.       We have carefully gone through the orders of the State Commission, District Forum, and other relevant record. It is established on record that Mr. Harmohan possessed a LMV (Light Motor Vehicle) driving license issued by the District Transport Officer, Tuesang Nagaland, which was subsequently renewed on 06.04.2015, remaining valid until 14.12.2017. The burden of proof lay upon the insurance company to demonstrate that the driver did not possess a valid and effective driving license at the time of the accident. It was observed by the Hon’ble Supreme Court in Nirmala Kothari v. United India Insurance Co. Ltd., (2020) 4 SCC 49 that the mere existence of a fake driving license does not absolve the insurance company of liability, as they are further obligated to prove that the vehicle owner failed to exercise reasonable care in employing the driver. Furthermore, if the owner exercised due diligence in verifying the driver's credentials at the time of employment, they are not obliged to verify the authenticity of the license from the licensing authority. The owner diligently inspected the driver's license at the time of employment, thus fulfilling their duty of reasonable care. There is no evidence to suggest that the insurer (OP) directed the owner to conduct further verification of the license. Moreover, there is no evidence on record indicating that the insurer alerted the owner prior to the accident regarding the alleged fraudulent nature of the driver's licence. In this case, the Hon’ble Supreme Court further observed that the Insurance Company is liable to indemnify the Insured unless it can prove that there was willful negligence on the part of the Insured in employing the driver regarding the veracity of the Driving License. Relevant portion of the order are reproduced below.

“9.         Having set forth the facts of the present case, the question of law that arises for consideration is what is the extent of care/diligence expected of the employer/insured while employing a driver? To answer this question, we shall advert to the legal position regarding the liability of the Insurance Company when the driver of the offending vehicle possessed an invalid/fake driving licence. In the case of United India Insurance Co. Ltd. vs. Lehru & Ors. a two Judge Bench of this court has taken the view that the Insurance Company cannot be permitted to avoid its liability on the ground that the person driving the vehicle at the time of the accident was not duly licenced. It was further held that the willful breach of the conditions of the policy should be established. The law with this respect has been discussed in detail in the case of Pepsu RTC vs. National Insurance Co. We may extract the relevant paragraph from the Judgment: (Pepsu case, SCC pp. 223-24, para10)

“In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) 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 licence possessed by the driver was a fake one, whether there is 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 licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care 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 licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh’s case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation.”

10.         While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer.

11.       The view taken by the National Commission that the law as settled in the Pepsu case (Supra) is not applicable in the present matter as it related to third-party claim is erroneous. It has been categorically held in the case of National Insurance Co. Ltd. vs. Swaran Singh & Ors.(SCC pp.341, para 110) that:

“110. (iii)…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 a duly licenced driver or one who was not disqualified to drive at the relevant time.”

12.       While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable.

13.       On facts, in the instant case, the Appellant/Complainant had employed the Driver, Dharmendra Singh as driver after checking his driving licence. The driving licence was purported to have been issued by the licencing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the concerned officer of the licencing authority deposed that the record of the licence was not available with them. It is not the contention of the Respondent/ Insurance Company that the Appellant/complainant is guilty of willful negligence while employing the driver. The driver had been driving competently and there was no reason for the Appellant/Complainant to doubt the veracity of the driver’s licence. In view of above facts and circumstances, the impugned judgment is not liable to be sustained and is hereby set aside. The appeals accordingly stand allowed. The respondent/ Insurance Company is held liable to indemnify the appellant.

10.     Although there is no sale certificate on record, the State Commission noted that the sale certificate mentions the unladen weight of the vehicle as 1740 KG and the laden weight as 2750 KG. Section 66(3)(i) of the Motor Vehicles Act, 1988, states that the provision requiring permits under subsection (1) of Section 66 does not apply to goods vehicles with a gross weight not exceeding 3000 KG. Considering that the gross weight of the vehicle in question, as indicated in the sale certificate, is 2750 KG, hence Section 66 of the Motor Vehicles Act, 1988, pertaining to the necessity of a permit, does not apply to the vehicle in question. A driver holding a Light Motor Vehicle (LMV) license is permitted to operate an LMV transport vehicle. This principle has been reaffirmed in the case of Mukund Dewangan v. Oriental Insurance Co. Ltd., (2017) 14 SCC 663. Relevant para of the judgement is reproduced below:-

“58. ….It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act….

59. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles……”

11.     In view of the foregoing, we are in agreement with the observation/findings of State Commission. There is no illegality or material irregularity or jurisdictional error in the order of State Commission, hence the same is upheld. Accordingly, RP is dismissed.

12.     The pending IAs in the case, if any, also stand disposed off.