NATIONAL INSURANCE COMPANY LIMITEDversusJ. MAHESHWARAMMA

                        [2009] 8 S.C.R. 524


A          NATIONAL INSURANCE COMPANY LIMITED
                               v.
                     J. MAHESHWARAMMA
                (Civil Appeal No. 3408 of 2009)
                            MAY 8, 2009
8
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]


         Consumer Protection Act, 1986 - Insurance policy -
C Fatal accident - Compensation, claim of - Plea that licence
   of deceased was fabricated; and policy holder had driving
  licence to drive tractor trailer and not motor cycle with gear -
  Award of compensation by forums below holding that
  deceased had valid insurance policy, accident took place and
o insured died during validity of the said policy, thus, driving
  licence was fabricated, is of no effect - More so, insurance
  company did not discharge the burden to prove that licence
  was fabricated - National Commission also holding that
  deceased had licence to drive motor cycle - On appeal, held:
E Said finding by National Commission not maintainable - As
  such question of insurance company having not discharged
  the burden, does not arise - Instant case is of contractual
  liability - Thus, matter remitted to National Commission to
  consider in light of Laxmi Narain Dhut's case.
F       National Insurance Co. Ltd. vs. Swaran Singh and Ors.
    2004 (3) SCC 297, Held inapplicable.

       United India Insurance Co. Ltd. vs. Lehru and Ors. 2003
  (3) SCC 338 and National Insurance Co. Ltd. vs. Laxmi
G Narain Dhut 2007 (4) SCALE 36, referred to.

                        Case Law Reference:

        2004 (3) sec 297         Referred to           Para 13

H                               524
           NATIONAL INSURANCE COMPANY LIMITED v. J.                 525
                       MAHESHWARAMMA
i
             2003 (3) SCC 338         . Referred to          Para 15       A
             2001 (4) SCALE 36         Held inapplicable     Para 21

            CIVIL APPELLATE JURISDICTION : Civil Appeal No.
        3408 of 2009.
                                                                           B
              From the Judgment & Order dated 3.9.2007 of the National
        Consumer Redressal Commission, New Delhi in Revision
        Petition No. 2708 of 2007.

             M.K. Dua, Kishore Rawat and Dhiraj for the Appellant.
                                                                           c
            The Judgment of the Court was delivered by

             GANGULY, J. 1. Leave granted.

             2. This appeal has been filed impugning the judgment and      D
        order dated 3.9.2007 passed by the National Consumer
        Disputes Redressal Commission, New Delhi (hereinafter
        referred to as 'th.e National Commission').

             3. The said National Commission in exercise of its
        revisional jurisdiction refused to interfere with the concurrent   E
        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 F
        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 G
    l   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 the opposite side, came at a high speed in a rash and
        negligent manner and hit the motor cycle of Beesanna and . H
    526     SUPREME COURT REPORTS                   [2009] 8 S.C.R.


A 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.
B
          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
c   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.

       8. It is not in dispute that as per the terms of the policy,
D 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
E 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
F 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 have not been challenged before it by
G the insurer by way of affidavit of the authority which issued the
  certificate.

       12. The DistricfForum came to a finding that the burden
  wholly lies on insurance company to establish the defence
H raised by it in such a proceeding and also to establish the
                NATIONAL INSURANCE COMPANY LIMITED v. J. 527
               MAHESHWARAMMA [ASOK KUMAR GANGULY, J.]
    'I
             · breach on the part of the insured.                                     A

                   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 sec 297; wherein it has been clearly laid down that
                                                                                      B
              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) ithas been held
              that the burden is on the insurer to prove that the insured is guilty
              for willful breach of conditions of insurance policy or the contract    c
              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 D
           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.
                                                                                E
           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
    c      licenced to drive one type of vehicle but driving another type of
           vehicle was the main or the contributory cause of the accident.
                                                                                F
                 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)].
                                                                                G
                 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.
                                                                                H
     528     SUPREME COURT REPORTS                  [2009] 8 S.C.R.


 A        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.
 B
       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
C 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
D 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.
E
        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
F 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
G 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
H that the deceased was having licence to drive motor cycle also.
    NATIONAL INSURANCE COMPANY LIMITED v. J.                       529
   MAHESHWARAMMA [ASOK KUMAR GANGULY, J.]
--· This finding cannot be maintained because there was a dispute          A
    about the genuineness of the licence and the complainant 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 authentic.         B
    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           c
    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 liability and therefore Swaran
    Singh's case (supra) was not applicable.                               0
       22. In the circumstances we think that it would -b~
  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         E
  of the driving licence.

         23. The appeal is disposed of.

  N.J.                                          Appeal disposed of.