J U D G M E N T
GANGULY, J.
1. Leave granted.
2. This appeal has been filed impugning the
judgment and order dated 3.9.2007 passed by
the National Consumer Disputes Redressal
Commission, New Delhi (hereinafter referred to
as `the National Commission').
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3. The said National Commission in exercise of
its revisional jurisdiction refused to
interfere with the concurrent findings of both
the District Forum and the State Commission.
4. The facts which were alleged in the complaint
filed before the District Forum, Mehboob
Nagar, are as follows:
5. The husband of the complainant late Beesana,
obtained policy bearing No.6200001644/2005
from the National Insurance Company Limited
for Rs.1,00,000/-. The policy covers the risk
of accidental death of insured. The legal heir
of the insured will get Rs.1,00,000/- under
the policy. The policy holder died on
24.11.2005 in a road accident while he was
proceeding on his motorcycle bearing No. AP
22-J278 from Gadwal to Veerapoor. On the way
in the limits of PJP Colony, where the tractor
bearing No. AP 22 C 3422 which was coming from
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the opposite side, came at a high speed in a
rash and negligent manner and hit the motor
cycle of Beesanna and Beesanna sustained fatal
injuries. The doctors advised to shift him to
Kurnool hospital. While on the way to Kurnool
hospital, Beesanna succumbed to the injuries.
6. Thereafter, the complainant submitted Claim
Form of the appellant herein along with all
other relevant documents.
7. The main contention raised by the appellant
before the District Forum was that the
deceased had no valid licence at the time of
accident. The fact that late Beesanna obtained
the policy to cover a risk to the third
parties, own damages and personal accident is
not disputed by the appellant. It is also not
in dispute that at the time of accident, the
insurance policy was valid.
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8. It is not in dispute that as per the terms of
the policy, the nominee will get Rs.1,00,000/-
if the policy holder dies in a motor accident
.
9. The stand of the appellant is that the driving
licence of the deceased which was sent for
verification is found to be fabricated. Their
further stand is that the policy holder had
got driving licence to drive Tractor Trailer
(Transport) but had no licence to drive
motorcycle with gear.
10. Before the District Forum, the stand of the
appellant was that Exhibit B-1, the licence of
the deceased purports to be a fabricated one
created in favour of the deceased for the
purpose of wrongful gain.
11. The District Forum observed that they are
unable to appreciate the said stand because of
the reason that the contents of Exhibit B-2
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have not been challenged before it by the
insurer by way of affidavit of the authority
which issued the certificate.
12. The District Forum came to a finding that the
burden wholly lies on insurance company to
establish the defence raised by it in such a
proceeding and also to establish the breach on
the part of the insured.
13. In support of its contention the District
Forum has quoted the judgment passed by the
National Commission in National Insurance Co.
Ltd. Vs. Swaran Singh and Ors. -(2004) 3 SCC
297; wherein it has been clearly laid down
that the breach of policy condition has to be
proved by the insurance company and it is very
clear that the burden of proof is on them.
14. In National Insurance Co. Ltd. (supra) it has
been held that the burden is on the insurer to
prove that the insured is guilty for willful
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breach of conditions of insurance policy or
the contract of insurance. (See para 92, page
337).
15. In coming to the said conclusion the learned
Judges relied on the decision in the case
of United India Insurance Co. Ltd. Vs. Lehru
and Ors. - (2003) 3 SCC 338 and held if
a person has been given a licence for
driving a particular type of vehicle, it
cannot be said that he has no driving licence.
In this case it is an admitted fact that the
victim had licence to drive a tractor with
trailer, but the allegation of the appellant
is that victim's licence to drive the
motorcycle with gear is fabricated. In any
event it cannot be said that the victim had no
driving licence. In such a case, it has to be
found on the basis of evidence laid before the
fact finding body whether the driver licenced
to drive one type of vehicle but driving
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another type of vehicle was the main or the
contributory cause of the accident.
16. If such a case is not made out, the insurance
company cannot avoid its liability merely on
the basis of technical breach of licencing
conditions. [See para 89, page 336 of the
report in National Insurance (supra)].
17. In view of the aforesaid legal position, the
District Forum held that the insurance company
before it failed to establish valid grounds on
which they can repudiate the claim. As such
the repudiation of the claim by the insurance
company was held arbitrary and unreasonable.
18. On this finding the District Forum held that
the complainant-wife of the deceased is
entitled for the sum assured of Rs.1,00,000/-
together with interest thereon @ 9% per annum
from the date of repudiation of the claim i.e,
28.2.2006.
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19. Against the said judgment of the District
Forum, an appeal was filed by the appellant
before the State Commission. The State
Commission also accepted the finding of the
District Forum in view of the fact that there
is no dispute with regard to the complainant's
husband having a valid insurance policy and
also in view of the fact that there is no
dispute that the accident occurred and the
insured died during the validity of the said
policy.
20. In view of such concurrent finding, the
National Commission did not interfere with the
same. The State Commission also came to a
finding that the burden is on the Insurance
Company to show that the driving licence of
the deceased was fabricated and the said
burden has not been discharged.
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21. The basic issue in the case was whether the
deceased had a valid driving licence to drive
the vehicle i.e. motor cycle with gear which
was involved in the accident. The District
Forum, State Commission and National
Commission were of the view that since the
deceased had a valid insurance policy and
there was no dispute that the accident had
taken place and the insured died during the
validity of said policy, the stand that the
driving licence of the deceased was fabricated
was of no consequence. It was held that the
insurance company had not discharged the
burden to prove that the driving licence of
the deceased was fabricated. The District
Forum observed that no affidavit of the
authority who issued the certificate (Ex.B-2)
has been filed. The view was endorsed by the
State Commission and by the National
Commission. Additionally, the National
Commission held that the licence produced
clearly indicated that the deceased was having
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licence to drive motor cycle also. This
finding cannot be maintained because there was
a dispute about the genuineness of the licence
failed to show that the deceased had licence
to drive motor cycle. Additionally after Exh.
B-2 was filed, there was no material brought
on record by the complainant to show that the
certificate dated 27.2.2006 issued by
transport authorities was not authentic.
Therefore the question of the insurance
company having not discharged the burden, does
not arise. In addition the decision in Swaran
Singh's case (supra) was considered in
National Insurance Co. Ltd. Vs. Laxmi Narain
Dhut [2007 (4) SCALE 36]. In Laxmi Narain's
case (supra) this Court observed that the said
decision is applicable to only third party
claim cases and even had no application to own
damage cases i.e. cases of contractual
liability. The present case is not a third
party case and is a case of contractual
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liability and therefore Swaran Singh's case
(supra) was not applicable.
22. In the circumstances we think that it would be
appropriate to remit the matter to the
National Commission to consider the matter
afresh in the light of Laxmi Narain's case
(supra). The National Commission shall permit
the parties to place material on record
regarding the authenticity or otherwise of the
driving licence.
23. The appeal is disposed of.
.......................J.
(Dr. ARIJIT PASAYAT)
.......................J.
New Delhi (ASOK KUMAR GANGULY)
May 08, 2009
