NATIONAL INSURANCE CO LTD Vs. HARJIT KUMAR DABAR

JUDGEMENT

(1.) This appeal is directed against the order dated 27.11.2002 passed in Case No.36/97 by the District Consumer Disputes Redressal Forum, Guna (for short the 'district Forum') whereby the complaint for deficiency in service in not making the payment of own damage claim of passenger bus bearing registration No. MP-08 A-2815 comprehensively insured for the period 13.5.1995 to 12.5.1996 met with an accident on 6.8.1995 was allowed holding that the driver who was driving the vehicle at the time of accident was not holding a valid driving licence which was renewed from the Licensing Authority, Gwalior while the original licence No. A/7548/84 said to have been issued by the RTO, Alwar was not issued and was a fake licence, hence, directed the Insurance Company to treat the claim as non-standard claim and to pay 75% of the payable amount of Rs.37,077/- as assessed by the Surveyor which comes to Rs.27,807/- with interest thereon at the rate of 9% from 27.6.1997 alongwith Rs.500/- as costs of the proceedings.

(2.) The only question arises for our consideration is whether the original driving licence admittedly having been found fake the owner of the vehicle who employed the driver after verification of the driving licence renewed from time to time can be deprived of own damage claim under the contract of insurance

(3.) Learned Counsel for the Insurance Company submitted that the decision of the Hon'ble Supreme Court in United India Insurance Company Limited V/s. Lehru and Ors., 2003 AIR(SC) 1292wherein the driver's licence was found to be fake deals with the case of statutory liability under Sec.149 of the Motor Vehicles Act. The Apex Court after referring to its earlier decisions in Skandia Insurance Company Ltd. V/s. Kokilaben Chandravadan, 1987 AIR(SC) 1184; Sohanlal Passi V/s. P. Sesh Reddy, 1996 AIR(SC) 2627; and New India Assurance Company Limited, Shimla V/s. Kamla, 2001 AIR(SC) 1419and after considering the provisions of Chapters X and XI and in particular Sec.149 of the Motor Vehicles Act, 1988 corresponding to Sec.96 (2) (b) of Motor Vehicles Act, 1939 held that insured cannot be expected to make an inquiry in the RTO spread all over the country and ultimately the licence is found to be fake, the Insurance Company cannot absolve from its liability at least in third party insurance which has been made compulsory. The Supreme Court further observed that in a case where a licence is found to be fake the Insurance Company would remain liable to the innocent third party but it may be able to recover from the insured. Therefore, the present case, being a case of own damage claim under the contract of insurance in which question of statutory liability is not involved for the breach of condition of the policy, the Insurance Company would not be liable to pay the amount nor can be ordered to treat the claim as non-standard claim as Insurance Company cannot recover the amount from the insured. Counsel cited decisions of National Commission in The New India Assurance Company Ltd. V/s. Surnam Singh, 1986-2002 CONSUMER 5685 (NS) and in Iqbal Hussain Quazi V/s. M/s. New India Assurance Company Limited and Ors. , 1986-2002 CONSUMER 6546 (NS ).