ORDER
PER MR PREM NARAIN, PRESIDING MEMBER
This revision petition has been filed by the petitioner - Insurance Company challenging the order dated 18.11.2019 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata ('the State Commission') in First Appeal no. A/499 of 2016.
2. The brief facts of the case are that the vehicle of the respondent met with an accident during the currency of the insurance policy issued by the petitioner - insurance company. The accident occurred on 24.08.2015. The insurance claim was rejected by the insurance company on the ground that the driver of the vehicle did not possess a valid and effective driving licence on the day of the accident.
3. Aggrieved by the repudiation, the complainant filed a consumer complaint no. CC/06/2016 before the District Consumer Disputes Redressal Forum, Paschim Medinipur ('the District Forum'). The complaint was resisted by the insurance company by filing the written statement stating that the driving licence of the driver was valid only upto 26.04.2015 and the driver did not get it renewed, thus, there was no valid driving licence with the driver on the day of the accident, i.e., 24.08.2015. Later on the driver got the licence renewed on 01.09.2015 and it was valid upto 21.11.2026 for non-transport vehicle and till 01.09.2018 for transport vehicle. Thus, the insurance company had rightly repudiated the claim. However, the District Forum vide its order dated 06.05.2016 has allowed the complaint and observed as under :
"Hence, it is ordered that the complaint case no. 06 of 2016 is allowed on contest with cost against the opposite party - insurance company. Opposite party insurance company is directed to pay Rs.1,60,000/- as repairing cost of the vehicle to the
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complainant along with interest @9% per annum from the date of filing of this complaint within a month from this date of order. Opposite party to also pay Rs.5,000/- as litigation cost to the complainant within a month from this date of order."
4. Aggrieved by the order of the District Forum, the insurance company preferred an appeal before the State Commission being appeal no. A/499 of 2016 and the State Commission vide its order dated 18.11.2019 dismissed the appeal of the insurance company.
5. Hence, the present revision petition.
6. Heard the learned counsel for the petitioner at the admission stage. Learned counsel for the petitioner has stated that the State Commission has wrongly observed that the licence was issued on 31.03.2000 and the same was valid till 21.11.2026 for non-transport vehicle and till 01.09.2018 for transport vehicle. The State Commission has thus concluded that the insurance company could not prove that on the day of the accident, i.e., 24.08.2015 there was no valid driving licence with the driver. The learned counsel has stated that the observation of the State Commission is against the record as the insurance company had filed the report of the licence issuing authority that the licence had expired on 26.04.2015 and it was renewed on 01.09.2015. Thus, there was no valid driving licence from 27.04.2015 to 01.09.2015.
7. It was further stated by the learned counsel that the District Forum has allowed total repair cost of Rs.1,60,000/- whereas the surveyor has assessed the loss only for Rs.1,06,353/-, therefore, even if the insurance claim is approved, the same can only be approved for Rs.1,06,353/-.
8. We have carefully considered the arguments advanced by the learned counsel for the petitioner and have examined the record. The District Forum has clearly stated in its order that the licence had expired on 26.04.2015 and was got renewed on 01.09.2015 and the licence became valid upto 01.09.2018 for transport vehicle. The District Forum has relied upon the judgment of the Hon'ble Patna High Court in the case of National Insurance Co. Ltd., vs Abha Sinha and Ors., decided on 27.02.1998 wherein the following has been held:
5. First of all, I will take up the first point raised by Mr. Chatterjee, learned Counsel for the appellant, that the person driving the vehicle had no driving licence on the date of accident as the period of licence had already expired and, therefore, insurance company has no liability. I do not find any force in the submission of the learned Counsel. From the perusal of the written statement filed by the insurance company in the claim case before the court below it does not appear that any specific defence was taken that the person driving the vehicle had no valid driving licence. No evidence to that effect was led by the appellant before the Tribunal. From the petition filed under Order XLI, Rule 27, Civil Procedure Code, a plea was taken that driving licence of the driver was valid up to 7.10.1989 while accident took place on 3.1.1990. In support of that a copy of the permanent licence has been filed and annexed as Annexure-A to the said petition. From perusal of Annexure-A, it is evident that by the said licence the driver was authorised to drive the transport vehicles and the licence was valid from 8.10.86 to 7.10.1989. There is an endorsement of renewal of the licence made by the
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District Transport Officer, Hazaribagh, whereby the licence was renewed up to July, 1992. The defence sought to be taken by the appellant by relying on driving licence would not, in my opinion, improve the case of the appellant. It is not the case of the appellant that the person who was driving the vehicle had no valid driving licence at any point of time or the said person was not authorised to drive the vehicle. Admittedly, the driver who was driving the vehicle on the date of accident was holding a valid driving licence duly granted by licensing authority in 1986 and the licence-was valid up to 7.10.1989. The driver was, therefore, authorised to drive transport vehicles and he was a licensed driver. Although there is an endorsement of renewal of the licence also as appearing in the licence but even assuming that there is no renewal endorsement, it cannot be said that the person driving the vehicle was not a licensed driver. It is not a case where the insured entrusted the vehicle to a person who does not hold a driving licence rather admittedly the driver to whom the vehicle was entrusted by the insured was having a valid driving licence duly granted by transport authority. Merely because of expiry of the period of licence and omission of the driver to get the licence renewed it cannot be said at any stretch of imagination that there is breach of condition of policy for which insurance company can be exonerated from the liability. As stated above, the driver was authorised to drive the transport vehicles and the vehicle was entrusted by the insured to the licensed driver and, therefore, in my considered opinion, this plea of the insurance company to absolve itself from the liability cannot be sustained in law."
9. On the basis of the above judgment of the Patna High Court, the District Forum has allowed the claim of the respondent/ complainant on the basis of the bills submitted for Rs.1,60,000/- for repairs. Though, the State Commission has wrongly observed that there was no gap in the licence and the licence was continuously valid upto 01.09.2018 for transport vehicle and upto 21.11.2026 for non-transport vehicle and on this basis has dismissed the appeal of the appellant, but the fact is that the learned counsel for the petitioner has not filed any other judgment which would be countering the observations made by the Patna High Court in the case of National Insurance Company Limited vs Abha Sinha and Ors., (Supra). The stark reality is that on the day of the accident, the driver was not holding a valid and effective driving licence, however, the driver was a licenced driver as per the view taken by the Patna High Court in case of National Insurance Company Limited vs Abha Sinha and Ors., (Supra). The basic necessity of having a valid and effective driving licence is to avoid insurance claim due to the negligent driving of a person not having valid driving licence. It is assumed that the person not having a valid driving licence may not be having competence and driving skill to drive a vehicle. In the present case, the driving licence was renewed later on and thereafter it cannot be said that the driver had lost his competence for driving the vehicle due to any reason. Moreover, once the petitioner knew that the claim was allowed on the basis of the judgment of the Patna High Court in the case of National Insurance Company Limited vs Abha Sinha and Ors., (Supra) the petitioner should have come up with other relevant judgments in support of their case, but no such case has been relied upon by the learned counsel for the petitioner. In these circumstances, we find that the order of the District Forum does not suffer from any legal lacunae and the complainant's insurance claim seems to be justified in the facts and circumstances of the case.
10. Now coming to the question of surveyor's assessment, it is seen that the surveyor's report
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was not filed before the District Forum and there is no mention of the surveyor's report in the written statement filed by the insurance company before the District Forum. It is also important to note that the claim was repudiated on 29.12.2015, whereas the surveyor has filed his report on 05.01.2016. Thus the claim was repudiated even before receiving the report of the surveyor. As the repudiation was prior to the receiving of the surveyor's report and the insurance company had not filed the copy of the surveyor's report before the District Forum and no plea was even taken in this regard in the written statement, hence, the insurance company cannot take this ground that the District Forum or the State Commission did not consider the surveyor's report.
11. Based on the above discussion, we do not find any merit in the revision petition filed by the petitioner - insurance company and accordingly RP no. 700 of 2020 is dismissed in limine.
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PREM NARAIN
PRESIDING MEMBER
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C. VISWANATH
MEMBER
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