PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT
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This appeal has been filed by the appellants/opposite parties (in short the appellants), as they are aggrieved of the order dated 09.08.2021 passed by District Commission-II, U.T., Chandigarh (in short the District Commission), whereby the consumer complaint bearing no.131 of 2019 filed by the respondent/complainant (in short the respondent) was allowed and the appellants were directed as under:-
".. In view of the foregoing, the present complaint is allowed against the Opposite Parties with directions to pay to the complainant Insured Declared Value (IDV) of the vehicle i.e. Rs.6,48,000/- along with interest @7% p.a. from the date of filing the complaint i.e. 14.3.2019 till the date of payment. The OPs are also directed to pay an amount of Rs.15000/- to the complainant towards compensation for causing him mental agony & harassment, along with litigation expenses of Rs.7,000/-.
This order shall be complied with by the Opposite Parties within a period of 30 days from the date of receipt of certified copy of this order, failing which they shall also be liable to pay additional compensatory cost of Rs.10000/- to the complainant apart from the above relief…."
2. The District Commission noted the following facts out of the consumer complaint filed by the respondent:-
".. the complainant, engaged in the business of transportation, got his vehicle/loader bearing Regd. No.HR-68-A-3905 insured with OP Insurance Company vide Policy No.1116033116P106178251 (Ann.C-1 b) valid from 12.8.2016 to 11.8.2017. The complainant appointed a driver namely Saran Dass s/o Sh.Prabhlad, having valid driving licence issued by Govt. of Nagaland valid till 21.4.2018 and also NOC for its renewal has been issued by DTO, Tuensang, Nagaland. Unfortunately, the said insured vehicle met with an accident as it overturned at Sangla Valley, Kinnaur Hills, as a result, the vehicle was totally damaged and the said driver died on spot. Then FIR No.0027, dated 26.9.2016 about said accident was recorded at P.S. Sangla, H.P.; OP Insurance Company was informed about it whereupon Surveyor M/s S.D. Associates, Solan visited the site and conducted survey to whom complainant also paid Rs.15,000/- whereas the bill raised by surveyor is Rs.9963/-. Thereafter, the complainant lodged claim with OPs followed by reminder, which they repudiated as "No Claim" vide letter dated 16.10.2017 stating that alleged driver of the vehicle namely Sharan Dass did not possess any valid & effective driving license at the time of accident as the said driving license was found to be fake as no record has been found available with DTO, Tuensang, Nagaland. The complainant also got the damaged vehicle assessed for repair at Manimanjra which comes to be Rs.14 lacs per estimate dated 11.12.2016 prepared by M/s Bee Gee Automobiles (Ann.C-10).…"
3. The contents of reply filed by the appellants to the consumer complaint filed by the respondent were noted down by the District Commission in the order impugned are as under:-
"…The OPs Insurance Company has filed reply and while admitting the factual matrix of the case, stated that the driving license of the driver of the vehicle in question was found to be fake and not issued by the said authority, hence the driver of the vehicle in question was not holding valid/effective driving license at the time of accident, therefore, the claim of the complainant was rightly repudiated. The copy of verification report of driving license dated 3.5.2017 issued by concerned DTO Tuesand Nagaland has been annexed as Ann. OP-
1. Denying other allegations, prayed for dismissal of the complaint.…."
4. The parties led evidence in support of their case, before the District Commission.
5. The District Commission after hearing counsel for the appellants and going through the material available on record, allowed the consumer complaint, in the manner stated above.
6. Hence this appeal.
7. We have heard Counsel for the appellants; gone through the material available on the record;
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and are of the considered opinion that this appeal deserves to be dismissed at the preliminary stage, for the reasons to be recorded hereinafter.
8. The moot question involved in this appeal is, as to whether the appellants were right in repudiating the claim of the respondent holding that they are not liable to pay the accident claim to the insured/owner of the vehicle, because the driver, who was driving the vehicle at the time of accident, had a fake driving licence?
It may be stated here that though there is no dispute with regard to the fact that the driving licence of the said driver was found to be fake, yet, the question still survives, as to whether, the owner of the vehicle in question i.e. the respondent was aware about the factum of the said fake licence and whether despite the same, he made no attempt to take corrective measures, including to verify the genuineness thereof. It is significant to mention here that the respondent in his consumer complaint filed before the District Commission, has, in a very candid manner, stated that at the time of appointment of the said driver, he had seen the photocopy of the driving licence in dispute and was also satisfied about his driving skills, before employing him as the driver for driving the vehicle, because he (driver) had been working for the last 20 years with the Canter Operator Union, Parwanoo, in the capacity of driver. The said driver also provided him 'No Objection Certificate' from the District Transport Officer, Nagaland. The respondent had satisfied himself that the driver has a valid licence and was driving the vehicle in question competently at the time of the accident.
9. We are of the considered view that even if the licence was fake, the insurance company would continue to remain liable unless, it proves that the owner of the vehicle was aware or noticed that the licence was fake and still permitted the driver to drive the vehicle. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has infact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. The appellants cannot expect the respondent to make enquiries with the RTOs, which are spread all over the country, whether the driving licence shown to the insurer by the driver is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of terms of the Motor Vehicle Act or the insurance policy.
In the present case also, before repudiating the claim on the ground aforesaid, the onus was upon the appellants to prove that the insured/owner of the vehicle in question did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver, but they miserably failed to do so. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Our this view is also supported by the principle of law laid down by the Hon'ble Supreme Court of India in Nirmala Kothari Vs. United India Insurance Co. Ltd. Vs. Civil Appeal no.1999 of 2020, decided on 04.03.2020, reliance whereupon has also been placed by the District Commission.
10. Not only as above, even in Ram Chandra Vs. Rajaram Civil Appeal No. 8145 Of 2018 (Arising out of SLP(C) No.6760/2017) decided on August 14, 2018, the Hon'ble Supreme Court of India has held that even if the driver is found to be holding a fake licence at the time of accident, it will be for the insurer/insurance company to prove that the insured/owner of the vehicle in question did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver and that the mere fact that the driving licence is fake, per se, would not absolve the insurer.
11. To wriggle out of the situation, Counsel for the appellants submitted that reliance on Nirmala Kothari's case cannot be relied upon at this stage, because review application bearing diary no.15608 of 2020 has been filed against it and is pending adjudication before the Hon'ble Supreme Court of India. It may be stated here that mere filing of review against Nirmala Kothari's case (supra), will not detract this Commission to take divergent view because the law laid down in the said case (Nirmala Kothari's case) is still in force and has not been reviewed/recalled by the Hon'ble Supreme Court. It is pertinent to mention here that the appellants have failed to place on record any judgment of the Hon'ble Supreme Court of India, holding contrary to the law laid down in Nirmala Kothari's and
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Ram Chandra's cases (supra).
12. In our considered opinion, the District Commission was right in allowing the consumer complaint. Thus, the order impugned stands upheld. Resultantly, this appeal being devoid of merit is dismissed at the preliminary stage, with no order as to cost.
13. Consequently, miscellaneous application bearing no.742 of 2021 filed by the appellants for staying the operation of the order under challenge also stands dismissed, having been rendered infructuous.
14. Certified copies of this order be sent to the parties, free of charge.
15. The file be consigned to Record Room, after completion. Pronounced
12.11.2021
Sd/-
[JUSTICE RAJ SHEKHAR ATTRI]
PRESIDENT
Sd/-
(RAJESH K. ARYA)
MEMBER
Rg.
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