w w w . L a w y e r S e r v i c e s . i n

Oriental Insurance Co. Ltd., Through Chief Manager v/s Seetakanta Patnaik

Company & Directors' Information:- THE ORIENTAL INSURANCE COMPANY LIMITED [Active] CIN = U66010DL1947GOI007158

Company & Directors' Information:- THE ORIENTAL COMPANY LIMITED [Active] CIN = U67120WB1935PLC094079

Company & Directors' Information:- ORIENTAL COMPANY LIMITED [Not available for efiling] CIN = U70101RJ1935ULL000047

Company & Directors' Information:- ORIENTAL INDIA LTD [Strike Off] CIN = U51226WB1983PLC036505

Company & Directors' Information:- PATNAIK AND CO PVT LTD [Active] CIN = U50401OR1959PTC000356

Company & Directors' Information:- B PATNAIK AND COMPANY PRIVATE LIMITED [Under Liquidation] CIN = U51109OR1946PTC000071

Company & Directors' Information:- ORIENTAL CORPN PVT LTD [Active] CIN = U51909GJ1937PTC000133

Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

Company & Directors' Information:- INSURANCE OF INDIA LTD [Strike Off] CIN = U67200WB1936PLC008634

Company & Directors' Information:- ORIENTAL CORPORATION LIMITED [Not available for efiling] CIN = U99999MH1937PTC002741

    Revision Petition No. 2045 of 2019

    Decided On, 08 October 2020

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Petitioner: Kishore Rawat, L.K. Tyagi, Advocates. For the Respondent: -----

Judgment Text

1. This Revision Petition No. 2045 of 2019 challenges the order dated 30.05.2019 passed by the State Consumer Redressal Commission, Odisha, Cuttack in First Appeal No. 394/2007. Vide this order, the State Commission had dismissed the appeal against the order of District Forum, Nabarangpur dated 14.12.2006 in C.D. Case No. 46/2006.2. Briefly, the Complainant, Seetakanta Patnaik, owner of Truck No.AP -02-T-8512, had obtained it’s insurance cover from the petitioner/OP-Oriental Insurance Company Ltd. (OP hereafter), for the period 09.06.2005 to 08.06.2006, vide policy no. 797/06. On 03.09.2005, the truck met with an accident at about 12:05 pm near village Kundraguda. A police case was registered vide Borigumma PS Case number 88. The said truck sustained substantial damage. As it was not in a position to run, it was loaded in another truck and shifted to Bhandar Gharani Engineering Garage, Nabarangpur, at a cost of Rs. 3,000/-.. Further, the complainant paid Rs. 90,000/- towards manual repair charges in addition to Rs.75,000/-for purchase of parts. All the bills were submitted to the OP; however, OP repudiated the claim on the plea that the driver at the time of the accident did not have a valid driving license. A consumer complaint was filed, seeking direction to the OP to pay Rs. 1,68,000/- with interest from the date of filing of claim till payment. This was contested by the petitioner/OP (hereafter OP) through a written reply. Admitting the factum of insurance of the said vehicle and the accident on 03.09.2005, Op stated that upon intimation, an authorised surveyor for spot verification of incident was appointed. Upon receipt of his report, OP took steps to verify the driving license (DL). This revealed that the Koraput DL was issued on the basis of the original license issued at Dhenakanal. The original DL, per report dated 12.03.2006 of the investigator, Mr. Bhagwan Ojha, Adv., was found not to have been issued in favour of Ch. Appana, the driver. Immediately thereafter, OP intimated the complainant about repudiation of his insurance claim, on 31.03.2006. Therefore, OP contended that it was not deficient in service: it had responded promptly to the accident and settled the claim by repudiating it.3. The District Forum, after considering the pleadings and evidence, allowed the complaint and observed as under :-“In result we ordered that,1. The Opp. Party, B.M., Oriental Insurance Co. Ltd. Jeypore is directed to pay an amount of Rs. 1,68,000/- towards insurance amount of the truck and pay Rs. 5,000/- (Total one lakh seventy three thousands only) towards claim compensation & cost of this litigation to the complainant within 45 days of receipt of this order, failing which the amount will bear 12% interest p.a. after lapse of the above said period.Pronounced in the open forum on 14th December, 2006.”(ad verbatim per record)4. Dissatisfied, the OP went in appeal before the State commission & the following order is directed as under :-“In view of the above observations and decision of Apex court, we are of the considered opinion that appellant is liable to pay the repairing cost of Rs.1,68,000/- only to respondent.In the result, appeal is dismissed confirming the order dated 14.12.2006 passed by learned District Forum, Nabarangur in C.D. Case No. 46 of 2006.Records received from the District Forum be sent back forthwith.”5. Hence, the present revision petition.6. This RP was heard on 29.11.2019.7. Basic issue is whether the lower fora have committed an apparent error of law by allowing this insurance claim even though the driving licence held by the driver at the time of accident, upon verification by an investigator appointed by the petitioner/OP (hereafter OP), was fake.8. Learned counsel for the OP arguing his case submitted that the law on this is clear: A driving licence issued by an authority on the basis of another driving licence which is found to be fake is also to be considered a fake driving licence.9. He invoked three citations in support of his arguments.(i) In IV (2007) CPJ 1 (SC), United India Insurance Co. Ltd. Vs. Davinder Singh, in C.A. No.4883 of 2017, against the final order dated 09.10.2006 of NCDRC in R.P. no.2908 of 2006, the Hon’ble Apex Court had allowed the appeal. The issue considered was whether renewal of a licence granted to drive a motor vehicle which was originally found to be forged would lead to any liability on the part of the insurance company. The Commission had held that the driver at the time of the accident was holding a valid driving licence, as this had been stated on affidavit by the owner of the vehicle. The Hon’ble Supreme Court based on other decisions of the Apex Court, held that “the Commission had committed an error in holding the insurance company liable to indemnify the owner of the vehicle in regard to losses sustained by him.”(ii) In IV (2008) CPJ 35 (SC), National Insurance Co. Ltd. Vs. Harbhajan Lal in C.A. No.3501 of 2004, along with other civil appeals, held that “ 18. In our view, the point involved in the present case is squarely covered by a decision of this court in the case of National Insurance Company Ltd. Vs. Laxmi Narain Dhut (supra) in which it has been laid down that “no sooner the insurer is able to prove that the licence was fake one, the insurer is absolved from its liability.” So holding, the Hon’ble Supreme Court had allowed the appeal and dismissed the order of the National Commission.(iii) In III (2007) CPJ 13 (SC), National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, in C.A. No.1140 of 2007 with other Civil Appeals, held that “24. In the background of the statutory provision, one thing is crystal clear i.e. the statute is beneficial one qua the third party. That benefit cannot be extended to the owner of the offending vehicle. The logic of fake licence had to be considered in respect of the third party and not in respect of own damage claim.”10. A careful perusal of the impugned order of the State Commission reveals that the petitioner/appellant/OP had taken a similar plea and relied upon certain decisions of the Hon’ble Supreme Court, such as National Insurance Company Ltd. Vs. Laxmi Narain Dhut (supra). On the other hand, learned counsel for the respondent had also relied upon a decision of the Hon’ble Supreme Court in the case of Lal Chand Vs. Oriental Insurance Co. Ltd., (2006) 7 SCC 318, in which it was held that the insurance company has to prove that the insured, namely, the owner of the vehicle, was guilty of negligence and had failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a licensed driver or one who was not disqualified to drive at the relevant point of time. The State Commission had thereafter recorded it’s order as follow:“On perusal of the record it is seen that the owner of the truck had engaged the driver after seeing the driving licence issued by R.T.A., Koraput which looked genuine. Further, it is seen that appellant relying on the decisions do not fit into the instant case as at the relevant point of time the driver was not in possession of a driving licence.In the instant case the driver was in possession of a driving licence at the time of the accident of the said Truck.In view of the above observation and decision of Apex Court, we are of the considered opinion that appellant is liable to pay the repairing cost of Rs.1,68,000/- only to respondent.In the result, appeal is dismissed confirming the order dated 14.12.2006 passed by learned District Forum, Nabrangpur in C.D. case no. 46 of 2006.”11. Clearly, on the basis of discussion above, the only issue for consideration in the instant matter is whether the OP was justified in repudiating the claim based solely on the finding of investigator appointed by it who in his report dated 12.3.2006, enclosing RTO’s letter no.688 dated 10.3.2006, submitted that on verification of driving licence volume No.94 and 105 from the RTO, Dhenkanal, it was found that the impugned driving licence No.2016/88-89 has not been issued in favour of the C.Appanna, the driver at the time of the accident.12. On one hand, the strict legal position emphasized by the learned counsel for the OP is that if it is found, at any stage, that the driver at the time of accident was not holding a valid and effective driving licence or a fake driving licence and that if this fake driving licence had been issued on the basis of an original fake driving licence, the driver would be held to have not possessed proper driving licence. If so, the OP was justified in repudiating the claim. On the other hand, as brought on record by the State Commission in the impugned order, in such a case, it would be required for the OP to prove that the owner of the vehicle was negligent and had failed to exercise reasonable care to ascertain the validity of the driving licence. Clearly, the State Commission, as per relevant portion of the order reproduced above, after consideration, concluded that the driver was in possession of a driving licence at the time of accident. It gave importance to the factum of possession of DL and the apparent genuineness of the DL to the complainant who had engaged the Driver.13. After considering the arguments of the learned counsel for the OP and carefully appraising the reasoning adopted by the State Commission, I am inclined to the view that in the case at hand, ends of justice would be met by making due allowance for the facts of the case. The complainant on affidavit has stated as below:“On the date of accident, one Ch. Appana Rao was driving the said truck and this driver had been appointed by me after seeing his driving licence bearing No.384/93-94 issued by R.T.A. Koraput. The driving licence looked me to be a genuine one on its face. I had also not taken any steps to verify the genuineness of the said driving licence on good faith that the licence could have been genuine one. As I have not violated any condition of the policy, the insurer of the said truck should not have repudiated my own damage claim.”14. Thus, the complainant, on affidavit, has taken the straightforward plea that he had no reason to believe that the driving licence showed to him was not genuine. He has also candidly admitted that he had taken no steps to verify genuineness of the driving licence. In other words, the action of the complainant in engaging the said driver cannot be said to be a motivated action with intent to defraud or make any unlawful gain. It was a simple admission of having accepted a driving licence which prima facie looked genuine. Indeed, there is no way in which any individual, such as the complainant in the case in hand, would be in a position to take a view on whether the driving licence is genuine or not. In such a situation, it would have been for the OP to prove that the complainant had not taken reasonable steps to ensure that the vehicle was driven by a licensed driver. It therefore appears to me, in the facts of the case, that the complainant had indeed engaged a duly licensed driver, albeit it turned out that he held a fake licence renewed on the basis of a fake original licence. The license holder was certainly guilty. Not so, the complainant. Op ought to have shown how the complainant willfully allowed the vehicle to be driven by a fake licence holder. Since this was not done, benefit of the doubt would have to be in favour of the complainant.15. Further, the lower fora have concurrently given findings of deficiency in service on OP’s part. It is apt at the stage to also recall the law on the limitations of revisionary jurisdiction laid down in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Lt

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d., (2011) 11 SCC 269, relevant portion of which is reproduced below:-“8. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.16. In view of the discussion above, this Revision Petition cannot sustain. It is accordingly dismissed, after consideration, at the stage of admission.