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Judgment
This revision petition has been filed by the petitioner New India Assurance Co. Ltd. against the order dated 09.06.2015 of the State Consumer Disputes Redressal Commission, Bihar (in short 'the State Commission') passed in Appeal no.54 of 2014.
Brief facts of the case are that on 24.08.2010, the respondent/complainant availed a package policy for his Bolero Car bearing Reg. No.BR-01PA-5134 for an insured value of Rs.4,04,600/-from the petitioner/OP bearing policy No.540602/31/10/01/0000853 for period from 24.08.2010 to 23.08.2011. On 18.08.2011, the said vehicle of the respondent/complainant met with an accident near Dhowa bridge and sustained damages. On 19.08.2011, the respondent/complainant lodged a claim with the petitioner/OP vide a claim form of even date and stated therein that the said vehicle was being driven by one Sanjay Yadav. The petitioner/OP thereafter appointed M/s. Mahendra & Co. for conducting survey of the damaged vehicle and for assessing the resultant liability of the petitioner/OP. M/s. Mahendra & Co. tendered their survey report dated 30.11.2011 and assessed the liability of the petitioner/OP at Rs.84,521.69. The petitioner/OP thereafter appointed Sh. Ram Parvesh Prasad to conduct re-inspection of the insured vehicle and confirm as to whether the repairs/replacement had actually been carried out and Sh. Ram Pravesh Prasad tendered his report dated 23.12.2011 stating that the respondent/complainant had effected all the repairs/replacements as considered in the report of M/s. Mahendra & Co. On 02.05.2012, the petitioner/OP thereafter wrote a letter to the respondent/complainant of even date seeking as to why the respondent/complainant had not co-operated in conducting of spot survey and further requested to provide a photocopy of the driving licence of the driver for conducting verification. Thereafter the respondent/complainant provided a copy of the driving licence bearing No.882/08-09/prof. issued by DTO-Nalanda in the name of Sanjay Yadav to the petitioner/OP. Upon receipt of the same, the petitioner/OP appointed Sh. Raj Kumar Sinha for verifying as to whether the said driving licence was genuine or not. On 25.05.2012, Sh. Raj Kumar Sinha verified the said licence from DTO-Nalanda and concluded that the said licence was fake. Accordingly, the petitioner/opposite party wrote to the complainant about the foraged licence of Sanjay Yadav, the driver vide their letter dated 20.06.2012. Accordingly, the claim was repudiated. Aggrieved by the repudiation, the complainant preferred consumer complaint no.07/2013 before the District Forum, Nalanda, Biharsharif (District Forum). The complaint was resisted by the opposite party by stating that the licence of the driver has been found to be fake on verification and therefore, the claim was not payable. However, later on complainant in connivance with the police had added one line in Sanaha dated 18.08.2011 that the vehicle was driven by Madan Singh. It was stated that the complainant has filed the claim in the claim form, where name of the driver is mentioned as Sanjay Yadav. Even, the surveyor in his report has mentioned Sanjay Yadav driver at the time of accident. In the original Sanaha, there was no mention of any driver. Thus, the Sanaha has been modified by the complainant fraudulently and this cannot be treated as proper evidence. The District Forum, however, allowed the complaint vide its order dated 20.11.2013 and directed the opposite party to give to the complainant the amount assessed by the surveyor i.e. Rs.84,521/- and Rs.2,000/- as litigation expenses within 45 days. Payment after the said time would be with interest at 9% on the said amount from the date of this order.
Aggrieved by the order of the District Forum, the opposite party/petitioner herein preferred an appeal before the State Commission and the said appeal has been dismissed by the State Commission vide its order dated 09.06.2015.
Hence the present revision petition.
Heard the leaned counsel for both the parties and perused the record. Learned counsel for the petitioner reiterated the same arguments as were mentioned in the reply. It was stated that the driver mentioned in the claim form is Sanjay Yadav and when his licence was found to be fake on verification, the complainant in collusion with the police added one line in the Sanaha that the vehicle was driven by Madan Singh. The District Forum has allowed the complaint on the ground that the Sanaha mentioned the name of Madan Singh and no doubt has been expressed on the driving licence of Madan Singh. The District Forum has also allowed the complaint on the ground that even if the licence of Sanjay Yadav was found to be fake and he was driving the vehicle, the claim cannot be refuted because while employing a driver, the owner of the vehicle only sees the licence of the driver and is not supposed to verify from the RTO concerned. The State Commission has wrongly recorded that there was no evidence on record that the vehicle was driven by driver Sanjay Yadav. The State Commission has clearly overlooked the assertion of the petitioner that the complainant has mentioned the name of Sanjay Yadav as driver in the claim form. Thus, the complainant cannot go against the information provided in the claim form. Thus, clearly the order of the State Commission is not based on the correct facts and evidence and therefore cannot be sustained.
On the other hand, learned counsel for the respondent/complainant stated that the State Commission has clearly recorded that there is no evidence that Sanjay Yadav was driving the vehicle at the time of accident. Clearly, the vehicle was being driven by Madan Singh as mentioned in the Sanaha dated 18.08.2011. The State Commission has relied on the Sanaha dated 18.08.2011. It was further stated that the claim form was only signed by the complainant and the same was filled by the agent of the Insurance Company. Therefore, if a wrong name is mentioned by the agent of the Insurance Company, the complainant is not responsible for the same. Both the fora below have found deficiency in service against the petitioner/opposite party and the scope under the revision petition is quite limited. The facts cannot be reassessed by this Commission against the concurrent finding given by the fora below.
I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the record. The complainant has filed the claim stating the driver of the vehicle as Sanjay Yadav, however, later on, in the sanaha, he introduced the name of the driver as Madan Singh. Both the fora below have believed the sanaha dated 18th August 2011 and have not considered the claim form filed by the complainant. The explanation given by the complainant for mentioning the name of the driver as Sanjay Yadav in the claim form is that the claim form has been filled by the agent of the insurance company and therefore, the complainant is not responsible for the same. This explanation is not tenable as the claim form is the statement of claim by the insured and all the information given in the claim form would be treated as coming from the insured. The issue of filling the proposal form by the agent of the insurance company has been dealt with by the Hon'ble Supreme Court in Reliance Life Insurance Co. Ltd. and anr. Vs. Rekhaben Nareshbhai Rathod, II (2019) CPJ 53 and the following has been observed:-
"31 Finally, the argument of the respondent that the signatures of the assured on the form were taken without explaining the details cannot be accepted. A similar argument was correctly rejected in a decision of a Division Bench of the Mysore High Court in VK Srinivasa Setty v Messers Premier Life and General Insurance Co Ltd where it was held:
Now it is clear that a person who affixes his signature to a proposal which contains a statement which is not true, cannot ordinarily escape from the consequence arising therefrom by pleading that he chose to sign the proposal containing such statement without either reading or understanding it. That is because, in filling up the proposal form, the agent normally, ceases to act as agent of the insurer but becomes the agent of the insured and no agent can be assumed to have authority from the insurer to write the answers in the proposal form.
If an agent nevertheless does that, he becomes merely the amanuensis of the insured, and his knowledge of the untruth or inaccuracy of any statement contained in the form of proposal does not become the knowledge of the insurer. Further, apart from any question of imputed knowledge, the insured by signing that proposal adopts those answers and makes them his own and that would clearly be so, whether the insured signed the proposal without reading or understanding it, it being irrelevant to consider how the inaccuracy arose if he has contracted, as the plaintiff has done in this case that his written answers shall be accurate."
From the above judgment, it is clear that the proposal form, even if it is filled by the agent, will be treated to have been filled by the proposer who has signed the form. Similarly, the claim form would be treated as having been filled by the insured as the same has been signed by the insured. It is quite unnatural that an owner of the vehicle has confusion in his mind as to who was driving the vehicle at the time of accident. It is the specific allegation of the insurance company that in the original sanaha dated 18th August 2011, there was no mention of any driver, however, the complainant with the connivance of the local police added a line that the vehicle was driven by Madan Singh. Even if the assertion of the insurance company is not considered as true, it is not clear as to why did the complainant give the name of Sanjay Yadav in the claim form. A claim form is the authentic version of the policy holder which he submits for approval of his claim. If there is any contradiction in the FIR and in the claim form, then also, the claim may not be payable. It is also noteworthy that the surveyor has also mentioned the name of Sanjay Yadav as driver. It means that till the survey was being conducted by the surveyor, the complainant was maintaining the name of driver as Sanjay Yadav. Thus, the conclusion would be that the vehicle was being driven by a person who was not having a valid driving license at the time of accident and the complainant has tried to ameliorate this precarious condition by resorting to fraudulently amending the sanaha dated 18.8.2011.
I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the record. The complainant has filed the claim stating the driver of the vehicle as Sanjay Yadav however, later on in the sanaha, he introduced the name of the driver as Madan Singh. Both the fora below have believed the sanaha dated 18th August 2011 and have not considered the claim form filed by the complainant. The explanation given by the complainant for mentioning the name of the driver as Sanjay Yadav in the claim form is that the claim form has been filled by the agent of the insurance company and therefore, the complainant is not responsible for the same. This explanation is not tenable as the claim form is the statement of claim by the insured and all the information given in the claim form would be treated as coming from the insured. The issue of filling the proposal form by the agent of the insurance company has been dealt with by the Hon'ble Supreme Court in Reliance Life Insurance Co. Ltd. and anr. Vs. Rekhaben Nareshbhai Rathod, II (2019) CPJ 53 and the following has been observed:-
"31 Finally, the argument of the respondent that the signatures of the assured on the form were taken without explaining the details cannot be accepted. A similar argument was correctly rejected in a decision of a Division Bench of the Mysore High Court in VK Srinivasa Setty v Messers Premier Life and General Insurance Co Ltd where it was held:
Now it is clear that a person who affixes his signature to a proposal which contains a statement which is not true, cannot ordinarily escape from the consequence arising therefrom by pleading that he chose to sign the proposal containing such statement without either reading or understanding it. That is because, in filling up the proposal form, the agent normally, ceases to act as agent of the insurer but becomes the agent of the insured and no agent can be assumed to have authority from the insurer to write the answers in the proposal form.
If an agent nevertheless does that, he becomes merely the amanuensis of the insured, and his knowledge of the untruth or inaccuracy of any statement contained in the form of proposal does not become the knowledge of the insurer. Further, apart from any question of imputed knowledge, the insured by signing that proposal adopts those answers and makes them his own and that would clearly be so, whether the insured signed the proposal without reading or understanding it, it being irrelevant to consider how the inaccuracy arose if he has contracted, as the plaintiff has done in this case that his written answers shall be accurate."
From the above judgment, it is clear that the proposal form, even if it is filled by the agent, will be treated to have been filled by the proposer who has signed the form. Similarly, the claim form would be treated as having been filled by the insured as the same has been signed by the insured. It is quite unnatural that an owner of the vehicle has confusion in his mind as to who was driving the vehicle at the time of accident. It is the specific allegation of the insurance company that in the original sanaha dated 18th August 2011 there was no mention of any driver, however, the complainant with the connivance of the local police added a line that the vehicle was driven by Madan Singh. Even if the assertion of the insurance company is not considered as true, it is not clear as to why did the complainant give the name of Sanjay Yadav in the claim form. A claim form is the authentic version of the policy holder which he submits for approval of his claim. If there is any contradiction in the FIR and in the claim form, then also, the claim may not be payable. It is also noteworthy that the surveyor has also mentioned the name of Sanjay Yadav as driver. It means that till the survey was being conducted by the surveyor, the complainant was telling the name of driver as Sanjay Yadav. Against these evidences, the evidence of sanaha cannot be considered as authentic. Hence, the conclusion would be that the vehicle was being driven by a person who was having a fake driving licence and was not having a valid driving license at the time of accident. However, in such cases, the Hon'ble Supreme Court has recently taken a very benevolent view that if the licence apparently seems like a genuine licence but is found to be fake in verification, the claim may be allowed if the Insurance Company is unable to prove that the owner had the information about the fake licence of the driver. In Nirmala Kothari vs. United India Insurance Co. Ltd., Civil Appeal Nos.1999-2000 of 2020, decided 04th March, 2020, the Hon'ble Supreme Court has observed the following:-
"11. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable."
In the case at hand, clearly, the Insurance Company has not claimed that the complainant had the information that the driver was having a fake driving licence. In the normal course, considering this as violation of a condition of the policy, the complainant may have been entitled to insurance claim on non-standard basis (75% of the claim) in the light of the judgment of the Hon'ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Company Limited, (2010) 4 SCC 536, but in the present case, the complainant has not come with the clean hands as he has tried to show the existence of a different driving licence of another person Madan Singh whose name has been mentioned in the sanaha. Therefore, in the facts of the instant case, relying on the decisions of the Hon'ble Supreme Court in Nirmala Kothari vs. United India Insurance Co. Ltd. (supra) and in Amalendu Sahoo Vs. Oriental Insurance Company Limited, (supra), I deem it appropriate to allow 60% of the claim as assessed by the surveyor.
Based on the above discussion, the revision petition No.2360 of 2015 is partly allowed and the insurance claim of the respondent is allowed at 60% of the claim as assessed by the surveyor. Consequently, the petitioner Insurance Company is directed to pay Rs.50,713/- (60% of Rs.84,522/-) to the respondent complainant along with interest @ 6% per annum from the date of order of the District Forum i.e. 20.11.2013 till actual payment. The cost of complaint of Rs.2,000/- awarded by the District Forum is maintained. Orders of the fora below stand modified accordingly. This order be complied within a period of 45 days from the date of receipt of this order.