HON'BLE MR. ASHIS KUMAR BASU MEMBER 

Order No. 06

Date : 18.07.2019

The  record is put up today for order.

The appeal is heard in earlier date of hearing in presence of both sides.

The instant appeal is directed towards the impugned order dated 07.07.2017 passed by the Hon’ble District Consumer Dispute Redressal Forum, Burdwan in Case No. CC/44/2016.

The dispute in the present case arises out of complaint filed by the respondent-complainant of a deficiency of service and unfair trade practice on the part of appellant-opposite parties in relation to repudiation of an insurance claim for accident of a truck.

 In filing appeal, it is alleged that the impugned order passed by  Ld. District Forum is incorrect in fact as well as in law and acted illegally with material irregularities.

 The appellant aggrieved as the Ld. Forum below failed to exercise their jurisdiction which is vested them and exercised their jurisdiction which is not vested them in law.

 It is argued that Ld. District Forum failed to consider the document submitted by the appellant –opposite parties where the name of driver, Bulu Kumar Yadav having  driving license no. WB- 37/200141033 valid till 08.01.2013 though the alleged accident occurred on 01.04.2013. On verification from the concern  RTA, Burdwan,  it reveals that the said license was expired on 08.01.2013, prior to the alleged accident.  Therefore, on the ground of invalid driving license , the appellant- opposite parties is not liable to pay any claim to the respondent. Hence there is no deficiency of service on the part of the appellant.  But the Ld. Forum directed the Appellant-Opposite parties to pay the entire sum assured along with cost and compensation. So the impugned order is bad in law and liable to be set aside.

The appellant  also aggrieved that the Ld. District Forum  in the impugned judgment  came to the conclusion that the concern driver of respondent  had valid driving license on alleged date of accident, 01/04/2013.  But Ld. Forum  failed to consider that except submitting one NOC issued in favour of the concern driver of the complainant showing receipt of renewal to be valid w.e.f.01.04.2013, the respondent could not submit any other cogent document. The appellant raised a  point that much before 01.04.2013 the concern driver obtained  NOC having code no. BR 08 of Licensing Authority of Bihar. Therefore, Licensing Authority of Burdwan could not issue any renewal slip authorizing the said driver to drive the said class of vehicle for 300 days.  In spite of that the Ld. Forum directed to pay insurance claim of the respondent as well as cost and compensation which is totally against settled principle of law and liable to be set aside. 

The appellant also aggrieved as the NOC / renewal slip is obtained  in respect of receipt of driving license of the driver of the complainant- respondent as the same had been issued after the date and time of the accident. Therefore,  the license of the concern driver was invalid at the time of accident. Ld. District Forum did not consider that it is an established position of law that the insurance contract is based on the principle of uberimma fides i.e  utmost good faith . The terms and condition of the insurance policy is binding between the parties to an insurance contract. In this case , the complainant  violated the terms and condition of insurance policy. Hence the impugned order of Ld. Forum dated 07.07.2017 in case no. C.C 44 of 2016 is bad in law and liable to be set aside. 

 The facts in brief are that the complainant- respondent is the owner of a vehicle bearing registration no.WB37B4725 was covered under the insurance policy being no. 150504/31/12/6300016973 issued by   National Insurance company Ltd at 46, G.T. Road, Durga Market, P.O. & P.S. Asansol, Dist. Burdwan,  PIN No. 713301, Opposite Party no. 1, for the period from 08.11.2012 to 07.11.2013 where insured amount was Rs. 300,000/-.  The said vehicle  bearing  registration no. WB37B4725 collided with a truck while moving in empty on  NH-2 near  Galsi Police Station in Burdwan.   The said vehicle was badly damaged and the helper became  unconscious  and he was sent to BMCH and subsequently had been referred to SSKM Hospital  due to serious condition. The damaged vehicle was under the custody of Galsi Police Station.  The appellant was too much occupied with the medical treatment of the injured helper and ultimately intimated OP No. 1 regarding accident of the truck no WB37B/4725 in detail  on 03.04.2013 and requested to proceed for the insurance claim .  Appellant submitted all necessary documents to  OP No. 1 on 04.06.13. On 20.03.2014 OP.No.1 informed that their investigator was unable to verify the driving license  of that  ill-fated truck driver  from the M.V. Dept, Asansol and requested  appellant to submit a valid driving license in original and to explain why the details of driving license was not available from M. V. Dept.    In reply complainant stated that he had produced valid driving license under MVl, Asansol  and driver had taken  NOC  issued by RTA, Asansol, 6/7 months ago which proved its genuineness. Complainant also gave his consent for compensation amount to the tune of Rs.298824/-. On 17.10.2014 complainant informed  OP.No.1  that he was unable to collect particulars of driving license from local RTA office as there is an automatic lock system in software if once NOC be issued. On  01.03.2016. OP No 1 informed complainant  that his claim had been  repudiated as the driving license (DL) in question was ineffective at the time of accident.  The complainant requested Opposition Parties several times  for compensation against  insurance policy but without any result. Ultimately  respondent –complainant  lodged a complaint to the Insurance Ombudsman against OP-1 where the claim was repudiated again .

 The Ld. District Forum, Burdwan  observed that the  complainant submitted driving license of the driver of  ill-fated truck to the OPs which was sent for verification.  But no information had been received  as  NOC was issued in favour of said driver  6/7 moths ago by local RTA and  automatically the system was locked , which proved that the said license no. WB 37/200141033 was genuine.  Complainant tried his best to collect the details of the DL without any result as the system was locked after issuance of NOC.  Therefore , the  driver possessed  valid  and effective  DL.  Hence the OPs cannot deprive the complainant from legitimate Insurance claim.  In this respect , the Ld  Forum below mentioned the  Hon’ble Supreme Court judgment  in the case of  Pepsu Road Transport  Corporation Vs  National Insurance Company, Civil Appeal No. 8276 of 2009. D/d 26.8.2013.  The OPs   did not settle the insurance claim  after submission of  surveyor’s report . Such inaction  can be said as deficiency of service which deprived the complainant from getting compensation. Ld. Forum ordered OPs either jointly or severally to pay  Rs. 298824=00 to the complainant towards the accidental damage of the vehicle within 45 days from date of passing the order and in default, the said amount shall carry interest @ 6% per annum . OPs are further directed to pay either jointly or severally  Rs. 4000=00 to the complainant for mental pain, agony  and harassment and litigation cost of Rs.1000=00 to the complainant within 45 days from date of passing the judgment. In default the complainant is at liberty to put the entire amount in execution as per provisions of law.

We have gone through the materials  on record and consider the submission advanced by the Ld. Advocates appearing for the respective parties.    There is no dispute that  Barsan Chatterjee , proprietor of Maa Tara Transport Company at West Court Road , Asansol, PIN  713304, is the owner of the truck bearing  vehicle no.WB37B4725  has an insurance coverage from  08.11.2012 to 07.11.2013 issued by  National Insurance Company LTD  at  46  G.T. Road,  Durga Market,  P.O & P.S. Asansol  and said truck met a road accident on 01.04.2013 which is very much within the period of insurance coverage . The claim  for damaged insured vehicle  has been quantified  to the tune of Rs. 298824=00 for which the complainant- respondent gave his consent.  The appellant repudiated the said claim on the plea that the driver  who met the accident did not have valid and effective DL)on the day of accident which was one of the condition for insurance policy.  The moot question of this case is whether the driver who met the  accident  has valid and effective DL on 01.04.2013.  After submitting all the required documents , the respondent-complainant  came to know from appellant - OPs that for verification, details of DL was not available from  RTA Asansol .  From record it is found that the respondent  tried his best to gather details of DL  from local RTA office to furnish the same to the OP 1 as per his instruction,  but failed to do so as the  system of MV Department had been locked  to give the details  at RTA office when NOC was issued  six months ago.  The respondent produced original  DL in the name of  Bullu Kr. Yadav, License No. WB37200141033, validity up to 10/02/2013 issued by Licensing Authority  Asansol (W.B ) along with Confirmation of NOC of DL No.  WB – 372001410141033 of  Bulu Kumar  Yadav s/o B.P. Yadav, Burdwan. In this confirmation, the Licensing Authority, Asansol, Burdwan informed Licensing Authority BR – 08 under memo.no. 427/MV/Asl  that NOC No.881/13 Dt.08/01/2013 was issued from this office.  Respondent- complainant also produced original DAK Receipt, GOVT. OF WEST BENGAL of Sri Bullu Kr. Yadav S/o B.P. Yadav, holding License No. WB37200141033 issued on 24-07-2001 valid upto 23/07/2014  New D/L No.WB37200141033. The said DAK Receipt bears the photo of the driver- Bullu Kr. Yadav and it is mentioned that ‘This receipt is valid upto 300 days from the date of issue ‘ and the issuing date is 01/04/2013.

In Brief Notes of argument respondent stated that as per requirement of the appellant for settlement of insurance claim, the respondent vigorously attempt to collect particulars of DL. No. WB37/200141033 from local RTA office but the concern official expressed their helplessness to give the particulars as the NOC had been already issued, and automatic lock system in software would not provide any information of said DL.  So,  it is very much clear that as NOC was issued by the competent authority regarding questioned DL , hence the same was effective on the date of accident. The respondent prayed for affirmation of judgement of Ld. District Forum Burdwan.

From facts and figures  it is evident that respondent submitted all the necessary documents to the OPs  in support of his claim except details of said DL  for which he was not responsible as the local RTA could not give any details of the same due to automatic lock of system as the NOC had been already issued to the same person.   Therefore, it transpires that the respondent has no negligence or malafide intention in this regard.   As the Appellant- OPs  did not pay any heed to his request for claim, respondent-complainant , raised the matter to the National Insurance Co.Ltd. Ombudsman  which proved abortive. In this context the respondent cited the judgement given by  Hon’ble  National Consumer Disputes Redressal Commission in the case of  Kamleshwari Prasad Sing   Vs  National Insurance Co. ltd.  Revision  Petition No.350 of 2004 D/d14.10.2004, where Hon’ble NCDRC  held “that the decision of the Ombudsman is not binding on the complainant and the decision of the insurance company to repudiate the  claim is subject to adjudication by the Fora constituted under Consumer Protection Act”.

In the written notes of arguments, the appellant’s contention is as per terms of the issued policy that valid DL of  the driver who was driving the vehicle at the time of alleged accident in the road is mandatory for a transport vehicle as Insurance policy is a contract of the utmost good faith hence the breach of said trust, the insurance company not in any way be liable to indemnify insured i.e the respondent. In this context, the appellant cited the judgement given  by Hon’ble Supreme Court in connection with Appeal ( Civil ) Case No.6277/2004, United India Assurance Company Ltd. Vs  Harchand Rai Chandanlal ‘’ that it is settled law  that terms of contract has to be strictly read and natural meaning be given to it,  no outside aid should be sought unless the meaning is ambiguous. In  Surajmal Ram  Niwas case the Hon’ble Supreme court  held  the same view.

        But as per records and circumstantial evidences, appellant-Ops could not prove conclusively that at the time of accident, the driver did not have valid and effective DL. Appellant could not prove also that all the documents in connection with said DL submitted by the respondent were fake. Hence its a natural and  logical conclusion that appellant made a guess work  to establish that the driver did not have valid DL on the day of accident.  Respondent produces original  Dak Receipt , DL and Confirmation certificate on issue of NOC which shows its validity on the day of accident.  In the brief notes of argument the respondent argued that appellant cannot raise the point why no FIR was lodged in connection with that accident as  Hon’ble  NCDRC held in the case of New India Assurance Co. Ltd Vs. Nitin Kamalakar Ahire, decided on 06.03.2019 that as per provisions of law the Insurance Company cannot go beyond the ground of repudiation of the claim.  The respondent also cited  the judgement of Hon’ble Supreme Court in the case of Ram Chandra Singh  Vs.  Rajaram and Others and it is held that “when the owner after verification satisfied himself that the driver has a valid license and was driving the vehicle in question competently at the time of the accident there   would be no breach of section 149(2)(a)(ii), in that event, the insurance Co. would not then be absolved of liability . It is also clear that even in case that the license was fake, the Insurance   Co. continue to remain liable unless they prove that the owner was aware or noticed that the license was fake and still permitted him to drive”.  The Hon’ble   Supreme Court observed in the case of PUBH vs. VIDYA CHETAL with SLP (C) No. 5237/2015(XVII) that “Consumer Protection Act, 1986 is beneficent legislation”.

If we relook into the matter the appellant has repudiated the claim for compensation on the ground of breach of trust and violation of terms of policy on the part of respondent which is not tenable, as there is no violation of terms of policy. The information received from original DL, DAK - Receipt of D/L for renewal and NOC which were submitted by respondent clearly showed that the concern driver had valid DL on the day of accident. Therefore, we are of the opinion that this is a clear case of deficiency in service on the part of the appellant-opposite parties. Therefore, we inclined not to intervene the judgement /order passed by the Ld. District Forum, Burdwan in Case No. CC/44/2016 dated 07.07.2016 and therefore, the said judgement has been affirmed.

                                                             Ordered

The instant appeal be and the same is dismissed on contest.

The impugned order passed by the Ld. D.C.D.R.F., Burdwan in C.C. Case No. CC/44/2016 dated 07.07.2016 is upheld.

We make no order as to cost.

Let a copy of this judgement be supplied to the parties free of cost.