::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::
C.C. No.76/2017.
Date of filing: 25.10.2017.
Date of disposal: 31.08.2018.
P R E S E N T:-
(1) Shri. Jagannath Prasad Udgata, B.A., LL.B.,
President
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: 1. Zharappa S/o Ramanna,
Age:43 years, Occ: Labour,
R/o Village Jonnikheri
Tq:Aurad-B, Dist: Bidar.
2. Sangeeta W/o Zharappa,
Age: 38 years, Occ: House hold,
R/o Village Jonnikheri
Tq:Aurad-B, Dist: Bidar.
( By Sri.Rajkumar.K.,Adv.)
VERSUS
OPPONENT/S: 1) A.Surendra S/o A.Anjaiah
Age:Major Occ:Business
R/o H.No.8-2-684/37/A road No.12 NBT Nagar
Banjara Hills Hyderabad(TS)-500034.
2) The Branch Manager ICICI Lombard General
Insurance Co., Ltd., division office 1-4-5A Kotheri
Complex Court Road Kalaburgi.
(By. R1. Smt.Padma Maharaj., Adv.
And R2.Sri. S. Wilson., Adv.)
:: J UD G M E N T ::
By Shri. Jagannath Prasad Udgata, President.
The complainants are before this forum by filing a complaint u/s 12 of the Consumer Protection Act, 1986, alleging deficiency of service against the opponents. The subject of the complaint is as hereunder.
2. That the son of the complainants by name Ganapathi was working as a driver of a motor cycle belonging to the O.P.No.1 and insured by the O.P.No.2. The motor cycle bears registration No. TS 09 EH 8048 and its’ corresponding Insurance Policy was bearing No.3005/2010786366/00/0000004964- date of validity- 19.06.2015 to 18.06.2016. In the insurance over, the Insurer had collected additional premium of Rs.50/- to cover the liability of Rs.1,00,000/- for owner driver.
3. On 31.05.2016, at about 17.15 hours when the son of the complainants was driving the motor cycle on the way from Santhapur to Jonnikeri, near Jonnakeri cross, a Lorry bearing No.HR 38/S-7670 approaching from Santhapur side dashed against Motor cycle No.Ts09EH8048 as a result of which the rider sustained grievious injuries over the face and stomach and died on the spot. Another Ganapathi s/o Gundappa Koli, who was accompanying deceased Ganapathi lodged complained in the jurisdictional Santhapur Police Station and a case alleging offences u/s 279,304-A I.P.C r/w section 187 of M.V. Act came to be registered vide Cr.No.102/2016. The usual investigation was done, post mortem was conducted and ultimately the Police have filed charge sheet in the court of the J.M.F.C. Aurad, Bidar against the driver of the Lorry.
4. The complainants have many times demanded to the O.P.No.2 Insurance company to settle the claim in respect of the death of their son- driver of the Motor cycle bearing No.TS09EH8048, have got issued legal notice on dated 24.09.2017 and the Insurer refusing to settle the claim, the complainants have instituted the present case.
5. Both opponents upon notice have participated in the proceeding and have filed their respective written versions, evidence affidavits and written arguments. Additionally they were heard in length. Documents as listed below this order have been filed by te complainant alone.
6. The O.P.No.1 in his versions though has denied the liability to settle the claim of the complainants, admitted the engagement of deceased Ganapathi as driver, the factum of the accidental death and has avered that, the Insurance company has to settle the claim of complainants.
7. Per centra, the versions of the O.P.No.2 is replete with absolute denial except admitting the fact of the accident and also the fact of issuance of policy. It is further claimed that, deceased Ganapthi was riding the motor cycle of O.P.No.1 A. Surender without any authority. It is also claimed that, the liability of the O.P.No.2 is limited to third parties and the Insured A.Surender and none else. The relationship of master-servant between A.Surender and late Ganapathi is also vehemently denied by the Insurer.
8. Considering the rival contentions and pleadings of the parties at dispute, the following points rise for our considerations.
- Do the complainants prove deficiency of service in the part of the O.P.s?
- Who would be liable to settle the death claim?
- What orders?
9. Our answers to the points raised are as following:-
- In the affirmative.
- The O.P.No.2 Insurance company.
- As per final orders owing to the following:-
:: REASONS ::
10. Point (1): In the instant case, though the opponent Insurance company has admitted the factum of issuance of the policy, containing a clause of extension of P.A. cover in the schedule II of the policy document for owner Driver, interpreting the same in his own way has denied the settlement of claim of the L.R.S. of the deceased driver. We propose to analyse the justifications of the opponents’ denial in the succeeding paragraphs, but to rule deficiency of service aspect it is worthwhile to mention the relevant provision of Act and proper interpretation thereof. Offer and extension of Insurance cover undoubtedly is a service as defined in section 2(1)(0) of the Consumer Protection Act, 1986. Dealing with the entitlements of the L.R.S of the deceased driver, we analyse section 2(1)(d)(ii) of the Consumer Protection Act, 1986 which reads as follows:-
“Consumer” means any person who
X X X X X X
(ii). 1[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 1[hires or avails o] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person 2[but does not include a person who avails of such services for any commercial purpose];
3[Explanation: For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment;].
11. Herein, the opponent No.1, owner of the motor cycle, having admitted the fact that, the deceased was his driver and he has obtained the policy for the laters’ Insurance coverage, the parents of the Insured are conclusively, consumers to prosecute the present case. The opponent Insurance company denying the just claims, we hold that, there is not only a deficiency of service but also an unfair trade practice. Hence we answer the point No.1 in the affirmative.
12. Point (2): The opponent has raised a hue and cry that, the policy coverage (personal Accident) was only meant for the owner cum driver and not the owners’ driver. Trying to justify his stands, the opponent has submitted electronic copies of decisions of Hon’ble Punjab and Haryana High Court and also the Delhi High Court as follows:-
i. F.A.O. No.5947 of 2012(O & M) D.D.24.10.2016 (P&H). National Insurance Co. Ltd. v/s Harimohan and Anr., IN this judgement, in Para 13, the Hon’ble High Court has been pleased to hold as follows:-
The insurance policy Ex.R2 shows that the premium of 50 has only been paid for compulsory persona accident cover for owner driver. As already discussed, this term “owner driver” will mean the registered owner who is capable of driving the vehicle and was driving the vehicle at the time of the accident. The family members of the registered owner shall not be covered under this term. The insured in this case has not paid any premium for optional personal accident cover of unnamed driver 7 to 8 and pillion rider. So, the claimant was not entitled for personal accident cover.
ii. F.A.O.NO.3596 of 2011 D.D. 09.01.2014 (P & H)
Bajaj Allianz General Insurance Co.Ltd. v/s Vikarant S/o Jasbir Sigh and Anr., This judgement in para-2 speaks interalia as follows:-
I have seen through the terms of the policy that the policy is for covering the liability for third person and a premium of 800/- has been paid and for personal accident cover for owner-driver of 2 lacks, a premium of 100/- has been paid. The personal accident must be understood as wholly personal to the person who is insured and the personal accident cover for an owner-driver is for owner who was also driver the term of the policy is, “the owner driver is the insured named in the policy. “the liability cannot be fastened on the insurance company for a claim at the instance of a borrower of a vehicle and personal accident cannot be understood as extending the liability for a person who was not the insured. The liability cast on the insurance company was, therefore, untenable and the claim against the insurer was not possible. Kamboj Pankaj Kumar 2014.01.14 12:15 I attest to the accuracy and integrity of this document Chandigarh.
iii. M.A.C. App.164.2012 D.D.16.11.2012(Delhi).
ICICI Lombard General Insurance Co. Ltd. v/s Jaiveersingh and ors.
In this case, extensively discussing few judgements of the Apex Court of 2008 and 2009 origin, the Hon’ble High Court in para-10 of the judgement has been pleased to hold as follows:-
Since the coverage towards personal accident was meant only for the owner-driver, the Claims Tribunal erred in awarding the compensation of Rs.1,00,000/- to the legal representatives of the borrower of the vehicle. The impugned order cannot be sustained. The Appeal, therefore, must succeed.
13. We are afraid that, the above decisions relied upon by the opponent cannot be put into in his favour, owing to another far fetching decision of the Hon’ble Supreme Court, thoroughly interpreting the dictum “Contra profarentem” reported in IV (2016) C.P.J.11(S.C.) to be vividly discussed hereinafter and also our interpretations of the terms of the policy the case being under the provisions of much more liberal, people friendly Consumer Protection Act, 1986 unlike the cases mentioned supra which were under Sections 140 and 163-A of the Motor Vehicle Act, 1988.
14. We have gone through the copy of the policy submitted by the complainants and admitted by opponent. In the relevant column Liability (B) , it is seen that a sum of Rs.50/- has been collected to extend PA cover for owner-Driver to the extent of Rs.1,00,000/-. In the first judgement relied upon by the O.P. discussions have been made in Para-8 regarding different heads payments, such as unnamed Driver, pillion rider etc., the mention of which are lacking in the instant policy. Furthermore, it is found that, the terms owner driver contains a hyphen in between them. Both the terms are inter webbed. Herein, in the captioned policy, a hyphen has found place, which would logically mean, owner and/or driver and not owner-cum driver. The ambiguity has been knowingly created by the Insurer himself and as held by the Hon’ble supreme Court in the case IV (2016) CPJ-11 (S.C.)- Industrial Promotion and Investment Corpn. Of Orissa Ltd. V/s New India Assurance Co. Ltd. and Anr. in Paras 9 and 10 on the aspect of “Contra Proferentem”, the submissions of opponent holds no water.
The ratio laid down as follows:-
It is well-settled law that there is no difference between a contract of insurance and any other contract, and that it should be construed strictly without adding or deleting any this from the terms thereof. On applying the said principle, we have no doubt that a forcible entry is required for a claim to be allowed under the policy for burglary/house breaking.
We proceed to deal with the submission made by Counsel for the Appellant regarding the rule of contra proferentem. The Common Law rule of construction “verba chartarum forties accipiuntur contra proferentem” means that ambiguity in the wording of the policy is to be resolved against the party who prepared it. MacGillivray in Insurance Law (9th ed., 1997) (Nicholas Legh-Jones et al, eds.) atp.280, deals with the rule of contra proferentem as follows:
“The contra proferentem rule of construction arises only where there is a wording employed by those drafting the clause which leaves the Court unable to decide by ordinary principles of interpretation which of two meanings is the right one. “One must not use the rule to create the ambiguity one must find the ambiguity first.” The words should receive their ordinary and natural meaning unless that is displaced by a real ambiguity either appearing on the face of the policy or, possibly, by extrinsic evidence of surrounding circumstances.”(footnotes omitted) Colinvaux’s Law of Insurance, (6th ed.s 1990) (Rabert and Merkin, eds.) at p.42. propounds the contra proferentem rule as under:
“Quite apart from contradictory clauses in policies, ambiguities are common in them and it is often very uncertain what the parties to them mean.
In such cases the rule is that the policy, being drafted in language chosen by the insurers, must be taken most strongly against them. It is construed contra proferentes, against those who offer it. In a doubtful case the turn of the scale ought to be given against the speaker, because he has not clearly and fully expressed himself. Nothing is easier than for the insurers to express themselves in plain terms. The assured cannot put his own meaning upon a policy, but, where it is ambiguous; it is to be construed in the sense in which he might reasonably have understood it. If the insurers wish to escape liability under given circumstances, they must use words admitting of no possible doubt.
But a clause is only to be contra proferentes in cases of real ambiguity. One must not use the rule to create an ambiguity. On must find the ambiguity first. Even where a clause by itself is ambiguous if, by looking at the whole policy, its meaning becomes clear, there is no room for the application of the doctrine. So also where if one meaning is given to a Clause, the rest of the policy becomes clear, the policy should be construed accordingly.” (footnotes omitted).
15. Therefore, we hold that, the opponent Insurance company is liable to reimburse the Insured amount to the complainants- parents of deceased driver Ganapathy, being the beneficiary under the opponent No.1 and proceed to pass the following:-
ORDER.
- The complaint is allowed in part.
- The opponent No.2 Insurance Company is here by directed to deposit the Insured sum of Rs.1,00,000/- in this Forum payable to the complainants together with interest @ 12 % p.a. from the date of filing of the complaint i.e. 25.10.2017 till realisation;
- The O.P.No.2 Insurance would further be liable to pay a sum of Rs.5,000/- towards Compensation and a sum of Rs.3,000/- as litigation expenses;
- Amount when deposited would be apportioned equally by the complainants and disbursement be made accordingly;
- Four weeks time granted to comply this order.
(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 31st day of August 2018).
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Documents produced by the complainant
- Annexure.A- Copy of F.I.R., statement and further statement.
- Annexure.B–Copy of Crime details form.
- Annexure. C– Copy of Inquest report.
- Annexure.D—Copy of post-mortem report.
- Annexure. E– Copy of seizure Panchanama.
- Annexure.F- Copy of charge sheet.
- Annexure.G- Copy of I.M.V. report.
- Annexure.H- Copy of R.C. Book(Card).
- Annexure.J – Copy of Insurance certificate.
- Annexure.K- Original Driving Licence of Koli Ganapathi.
- Annexure.L- Office copy of legal notice with postal receipts posted.
Document produced by the Opponents.
-Nil-
Witness examined.
Complainant.
- P.W.1- Sri. Zharappa, Complainant No.1.
Opponent.
- R.W.1- Sri. A.Surendra (O.P.No.1)
- R.W.2- Sri. Amarnath D.V.-officer of O.P.No.2.
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
