NIRMALA KOTHARI Vs UNITED INDIA INSURANCE CO. LTD.CIVIL APPEAL NOS. 1999-2000 OF 2020.
“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 its authenticity 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 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.”
The judgment was pronounced by Justice Navin Sinha and Krishna Murari on 04 MARCH, 2020
Facts
The appellant was owner of Hyundai Elantra vehicle, which was which was insured with the Insurance Company for a sum of Rs.5,00,000/-. Appellant’s husband, Vinod Ray Kothari, who was the owner of the car, and his daughter died and the vehicle was damaged. The driver of the vehicle, Dharmendra Singh Chauhan got an FIR registered with the police.The Respondent/ Insurance Company stated in the repudiation letter that the driver Dharmendra Singh Chauhan did not have a proper driving license at the time of the accident. Respondent rejected the insurance claim. The appellant preferred a consumer complaint in District forum. The district forum allowed the complaint, and same was confirmed by state commission aggrieved by the order passed by state commission respondent filed an appeal in national commission. The national commission absolved the respondent from its liability. Aggrieved by the decision of national commission appellant preferred the current appeal.
Contention
It is argued by the Appellant/Complainant that at the time of employing the driver, the documents like driving licence etc. are generally checked but no one usually verifies the genuineness of the same.
It is the case of the Respondent/ Insurance Company that in the absence of a valid and effective driving licence with the driver, there was fundamental breach of the terms and conditions of the insurance policy in question and hence, the claim made by the Appellant/Complainant was not payable.
While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer.
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.
On facts, in the instant case, the Appellant/Complainant had employed the Driver, Dharmendra Singh as driver after checking his driving licence. It is not the contention of the Respondent/ Insurance Company that the Appellant/complainant is guilty of willful negligence while employing the driver. The driver had been driving competently and there was no reason for the Appellant/Complainant to doubt the veracity of the driver’s licence.
In view of above facts and circumstances, the impugned judgment is not liable to be sustained and is hereby set aside. The appeals accordinglystand allowed. The respondent/ Insurance Company is held liable to indemnify the appellant.
“The driver had been driving competently and there was no reason for the Appellant/Complainant to doubt the veracity of the driver’s licence. In view of above facts and circumstances, the impugned judgment is not liable to be sustained and is hereby set aside.”
View/Download Judgement: NIRMALA KOTHARI Vs UNITED INDIA INSURANCE CO. LTD.
– Aarthy K
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