- (1.) CONSUMER -complainant has, by way of this appeal under Section 15 of the Consumer Protection Act, 1986, challenged the legality and propriety of the finding that the insured vehicle No. UP06/1389 was being driven at the time of the accident by the complainant himself, who did not possess a driving licence and, as such, the insurer was not liable to pay the compensation and reimburse the loss occasioned to the complainant by reason of the damage to the vehicle and consequential dismissal of the complaint.
(2.) HAVING heard the learned Attorney for the appellant and the learned Counsel for the respondent, we are, for the reasons to follow, of the considered view that the finding recorded by the District Forum is not proper and reasonable and that the vehicle was being driven at the time of the accident by driver Ganesh Singh, who was holding a valid driving licence.
(3.) LEARNED Attorney for the complainant - appellant would submit that the District Forum made an error in placing reliance on the affidavit of driver Ganesh Singh filed as Paper No. 13/5C as an annexure to the investigation report of Sh. B.P.S. Rawat, who was appointed by the insurer to make an investigation about the incident. According to the learned Attorney, the District Forum was not justified in discarding the averment of the affidavit of the complainant Vijinder Singh Chauhan, who has unequivocally asserted that at the time of the accident on 26.5.2004, the vehicle was being, driven by his driver Ganesh Singh. He has reiterated that although he was the other occupant of the vehicle at the time of the accident, but he was himself, not driving the vehicle as has wrongly been claimed by the insurer on the basis of the investigation report, referred above. Taking into consideration the ordinary course of nature, in all probability, normally a professional and duly licensed driver will be on the steering wheel of the vehicle, while the owner, who do not possess driving licence is also occupying the vehicle at the time of the accident. Keeping this aspect of the matter in view, only highly reliable and cogent evidence of the driver or any of the eye -witness would have rebutted the statement on oath made by the complainant in his affidavit. We are convinced that neither no such reliable material has been placed on record, nor the so -called affidavit of driver Ganesh Singh, referred to by the District Forum in the impugned judgment would have served the purpose. The reason being that the investigation report of Sh. B.P. S. Rawat (Paper Nos. 48 to 51), does not indicate that the investigator knew driver Ganesh Singh personally or that some other person identified Ganesh Singh before him or before the Notary Public, who was made to attest the so -called affidavit of Ganesh Singh to be delivered to the investigator. The identity of driver Ganesh Singh, thus having not been established, it was not legally permissible to draw an inference that driver Ganesh Singh sworn an affidavit to be given to the investigator and that the said deponent correctly testified that at the time of the accident, he was not driving the vehicle. Further, the averment of the affidavit of the complainant could have been controverted only by filing the duly attested affidavit of driver Ganesh Singh before the District Forum and in the totality of the circumstances of the case, the so -called affidavit of driver Ganesh Singh procured by the investigator could not have been taken to rebut the evidence of the complainant. It was submitted by the learned Counsel for the insurer that the burden lay upon the complainant to file the affidavit of his driver Ganesh Singh and even if the investigation report was not to be relied upon, the fact that the bus was being driven by driver Ganesh Singh at the time of the accident, could have been proved only by the evidence of this driver and none else. The submission of the learned Counsel carry no conviction, in view of the fact that according to the investigation report itself, the driver Ganesh Singh was not traceable and it was one of the reason for delayed submission of the report. The investigator claimed to have laid his hands upon driver Ganesh Singh through some informer, who had not been named in the report and as stated above, there was no definite evidence to indicate that driver Ganesh Singh had been correctly identified and brought to the investigator for getting an affidavit prepared and attested by Notary Public. It is also in the report that in the accident, complainant Vijinder Singh Chauhan suffered serious injuries and had to be referred for specialized treatment at Delhi, whereas the driver Ganesh Singh received minor injuries and was discharged only after two days from the hospital. After the accident, driver Ganesh Singh was not in the employment of the complainant, who remained confined to bed for long and was thus not in a position to trace driver Ganesh Singh in order to file this driver's affidavit on the record of the case. Therefore, in these peculiar circumstances of the case, the only reliable evidence about the accident was that of complainant himself, who was one of the occupant of the ill -fated vehicle at the time of the accident. It shall not be out of place to mention here that the investigator of the insurer has also not recorded the statement of any of the residents of the locality, where accident took place and there can be no gainsaying that the evidence of the complainant had not been rebutted by any cogent and reliable evidence of the insurer. The investigation report was, thus, of no avail in claiming that at the time of the accident, the vehicle was not being driven by duly licensed driver Ganesh Singh. It is the admitted case of the insurer that driver Ganesh Singh was holding a valid driving licence as has been mentioned in the final survey report dated 24.1.2005 submitted by insurer's Surveyor Sh. Bhopendra Singh (Paper Nos. 35 to 43).;