DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA,
MALDA D.F.ORIGINAL CASE No.79/2008
Date of filing of the Case: 06.11.2008
Complainant
Opposite Parties
Mrs. Krishna Choudhury,
W/o. Manash Choudhury,
Vill.- Ramkrishnapally,
N.H.-34, P.O. Rathbari,
P.S. Englishbazar, Dist.- Malda
Regd. Owner of Vehicle
No. WB-66D/3924 (Car).
1)
The Manager,
Bajaj Allianz General Insurance Company Ltd.,
City Plaza, 4th Floor, Sevoke Road,
Siliguri – 734 001.
Dist.- Darjeeling
2)
The Manager,
Bajaj Allianz General Insurance Company Ltd.,
YAHAMAH SHOW ROOM,
3rd Floor, P.O. Rathbari,
P.S. Englishbazar, Dist. Mald
Present
1.
Sri Sibsankar Pal, President
2.
Smt. Sumana Das, Member
3.
Dr. Soumen Sikder, Member
For the Petitioner : S.P. Gupta, Advocate
For the O.P.s : For O.P. Nos.1 & 2 Dipu Laskar, Advocate
Order No. 11 Dt. 30.06.2009
The petitioner Mrs. Krishna Choudhury has knocked before the door of the Forum with a petition u/s 12 of C.P. Act, 1986 with the allegation against Bajaj Allianz General Insurance Co. Ltd. contending inter alia that she happens to be the registered owner of Vehicle No. WB-66D/3924 ( Maruti car ) having been duly insured with the O.P. / Bajaj Allianz General Insurance Company Ltd. ( Hereinafter referred to as Insurance Company ), under Policy No. BA 2114032 valid from 23.12.2006 to 22.12.2007. On 15.06.2007 midnight the said vehicle met with an accident upon NH-34 near Bhangapool within P.S. Islampur Dist. Uttar Dinajpur causing serious damage of the vehicle. The
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factum of accident was duly informed with Islampur P.S. on the basis of which Islampur P.S. Case No. 144/07 dt. 16.06.2007 was started. After observing all legal formalities the vehicle was recovered and was kept at J.K. Wheels, Maruti Showroom for replacement. A series of communication was made by the petitioner with the Insurance Company but to no effect. Lastly on 10.09.2007, the Insurance Company informed the petitioner in writing for submission of driving licence and estimate of repairs . An estimate of loss given by J.K. Wheel amounting to Rs. 5,00,711.52 was, however, submitted before the Insurance Company though the amount covered under the risk was Rs. 3,41,545/-. The petitioner, however, came to know from the O.P., Insurance Company that the claim could not be settled for the valid driving licence. The Insurance Company on 21.12.2007 informed the petitioner that due to non-submission of driving licence the claim of the petitioner was repudiated. Hence, this case praying reliefs as per plaint.
The Insurance Company has been contesting the case by filing written version wherein they denied all material allegations contained in the petition. The specific case of the Insurance Company is that the petitioner failed to submit original copy of driving licence. Further case is that at the time of investigation by the O.P’s surveyor it was gathered that the driver of vehicle in question was not holding valid and effective driving licence at the time of accident. Again the O.P. on enquiry from the R.T.O. concerned, became aware of the driving licence being false and fabricated. More so the claim form submitted by the petitioner was found to be full of discrepancy. With all the above the insurer has prayed for dismissal of the case.
From the above facts and circumstances the following points emerge for effective disposal of the case.
Points
1) Whether the case is defect for non-joinder and mis-joinder of parties ?
2) Whether the driver of the vehicle had valid licence at the time of accident or not ?
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3) Is there any deficiency on the part of Insurance Company in the matter of settlement of claim or not ?
4) Whether the petitioner is entitled to get the amount of claim as prayed for ?
::DECISION WITH REASONS::
Point No.1
This point has not been agitated by either of the parties at the time of hearing argument. More so, on sifting the materials on record and the evidence so far adduced, we do not find anything against this point. This point is thus disposed of in favour of the petitioner.
Point Nos. 2 to 4
All the points are interlinked each other and as such taken up together.
At the very outset of his argument the ld.lawyer for the O.P. has submitted the that since at the time of accident, the vehicle in question was being driven by such a person who had no valid licence rather being forged/ fake one, the petitioner is not entitled to get any sort of relief, also for the reason that such type of forged/ fake licence certainly is tantamount to a fundamental breach of condition of the policy.
On the other hand the ld.lawyer for the petitioner by taking us through the ratio decided in the case of B.V. Nagarajn Vs. Oriental Insurance Co. Ltd., reported in (1996) 4 Supreme Court Cases 647; has canvassed that if violation of permit is not the sole cause of accident, the term of exclusion of Insurance Policy must be read so as to serve the main purpose of the policy that is to indemnify the damage caused to the vehicle. He has further argued that no such evidence has been adduced by the Insurance Company to substantiate that the cause of accident was due to forged/fake licence as per terms of policy condition.
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In the above circumstances it was now become necessary to point out that in support of the petitioner’s case one xerox copy of driving licence standing in the name of Alok Choudhury S/o. Late Rathin Choudhury of R.K. Pally, Malda ( marked Exbt.- 10 ) has been filed on behalf of the petitioner. As there was tooth and nail fight by and between the parties as to the genuineness of the driving licence ( Exbt.-10 ), by an order dt. 22.04.2009, the xerox copy of the driving licence ( Exbt.-10) was sent to R.T.O., Malda requesting him to verify the licence and its genuineness. Again by an order dt. 22.05.2009 as no suitable reply was received, the R.T.O., Malda was again requested to send his report in compliance with order dt. 22.04.2009. Subsequently under Memo No. 213/MV dt. 05.06.2009 R.T.O. Malda informed the Forum stating inter alia that the relevant register has been checked thoroughly from No. WB-65B/0140 to WB65B/0149 but within the span of the above nos. there was no licence being recorded in the name of Alok Choudhury. In this regard we are not unmindful to note that the aforesaid letter of R.T.O. Malda is part and parcel of the record upon which reliance can be placed.
PW-1, Krishna Choudhury ( Petitioner )in her evidence deposed that Alok Choudhury ( her driver ) has valid driving licence and she had submitted the licence which has been marked Exbt.-10. It is very surprising to note that in her cross-examination she has clearly stated that she will not examine Alok Choudhury in connection with this case. We fail to understand as to what prompted her to withhold Alok Choudhury being passed through the witness box. Such withholding of Alok Choudhury from being examined casts a shadow of doubt in the mind of the Forum as to the genuineness of driving licence of Alok Choudhury ( Exbt.- 10 ). Again to our utter surprise we find from motor insurance claim form ( Exbt.- 4 ) that the column of Driving
Licence No. and issuing R.T.O. against driver’s detail appearing in Column No. 7, remain blank. In our view, purposively those columns were left blank in order to create confusion as to the genuineness of the driving licence against licence no. WB-65B/0143(PROF). Significantly the last digit of the licence appearing in Exbt. -10 is not
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legible. It is further seen from materials on record that under Memo No. 209/MV dt. 05.06.2009 R.T.O., Malda informed this Forum that the driving licence bearing no. WB-65B/0143(PROF) stands in the name of one Raju Sk. Therefore, all the above state of affairs goes a long way to show that in reality there is no existence of driving licence in the name of Alok Choudhury as has been submitted by the petitioner. So we have no hesitation to hold that purported driving licence in the name of Alok Choudhury is a fake one.
By a plethora of decisions reported in 2008 CTJ II( Supreme Court ) (CP), 2008 CTJ 216 SC (CP) and also 2009 CTJ 549(CP) (SCDRC) Rajasthan, it has been held that driving a vehicle with a forged / fake licence would certainly amount to a fundamental breach of conditions of the insurance policy putting an end to the contract of insurance between the parties. The Hon’ble Apex Court of the land has also held that fake licence is always a fake one and it can never be a genuine. Therefore, considering the above legal backdrop we do not find any good wind in the sail of argument advanced by the ld.lawyer for the petitioner, on the strength of the decision reported in 1996(4) SCC 647 because the facts and circumstances upon which the Hon’ble Apex Court decided the case under the provision of M.V. Act are very much different from the facts and circumstances of the present case under the C.P. Act because of the fact that driving a vehicle with a forged/ fake licence would certain amount a fundamental breach of the conditions of the policy.
In view of above legal proposition the question of getting relief on the basis of job estimates ( Exbt.-5) prepared at the instance of the petitioner does not arise.
Therefore, we do not find any deficiency on the part of the Insurance Company for not settling the claim of the petitioner on the basis of the insurance policy ( Exbt.-8).
All these points are thus disposed of.
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In the result the case fails.
Proper fees have been paid.
Hence, ordered
that Malda D.F. Case No. 79/2008 be and same is hereby dismissed on contest with no order as to cost.
Copies be supplied to both parties at free of cost.
SOUMEN SIKDER SUMANA DAS SIBSANKAR PAL
Member, Member, President,
D.C.D.R.F., Malda. D.C.D.R.F., Malda. D.C.D.R.F., Malda