DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.

 

Complaint Case No : CC/204/2019

Date of Institution : 18.11.2019

Date of Decision : 19.05.2020

Jasvir Kaur w/o Krishan Chand Legal Heir of deceased Jaspreet Sharma resident of Mohalla Buttaran Da, Bhadaur, Tehsil Tapa District Barnala.                             …Complainant

Versus

1. Bajaj Allianz General Insurance Co. Ltd., through its Managing Director having its Claim Department at SCO 156-159, Second Floor, Sector 9-C, Chandigarh. Contact Number 0172-4692911.

2. Friends Automobile, Bajaj Agency VPO Bhadaur, Tehsil Tapa District Barnala. 

…Opposite Parties

Complaint Under Consumer Protection Act.1986.

Present: Sh. Nitin Bansal counsel for complainant. 

Sh. Bhushan Kumar Garg counsel for opposite party No. 1.  

Opposite party No. 2 exparte.

Quorum.-

1. Sh. Kuljit Singh : President

2. Sh. Tejinder Singh Bhangu : Member

(ORDER BY KULJIT SINGH, PRESIDENT):

    The complainant namely Jasvir Kaur has filed the present complaint under the Consumer Protection Act, 1986 (in short the Act) against Bajaj Allianz General Insurance Company Limited, Chandigarh and another. (in short the opposite parties). 

2. The facts leading to the present complaint as stated by the complainant are that she is the mother of deceased Jaspreet Singh who died on 19.4.2019 in a road accident vide which FIR No. 72 under Section 279/337 PS West Sector 11, Chandigarh on the negligence of offender Toyota Innova Vehicle. 

3. It is further alleged that the deceased Jaspreet Singh owned motorcycle marked Bajaj Platina bearing registration No. PB-19-S-2504 purchased from Friends Automobile, Bhadaur District Barnala who got his vehicle insured with the opposite party bearing policy No. OG-19-1217-1843-00007757 issued on 17.12.2018 11.30 (Hrs.) till dated 16.12.2023 Midnight which included PA cover for owner-driver-SI Rs. 15,00,000/- from 17.12.2018 to 16.12.2019 for which deceased paid an additional amount of Rs. 750/- and total premium of Rs. 5,944/- was paid. Further, the deceased Jaspreet Singh had a valid driving license and valid registration certificate of his motorcycle. 

4. It is further alleged that the deceased was having Group Personal Accident Policy with the opposite party bearing policy No. OG-19-1000-6401-00857551 issued on dated 25.12.2018 till 24.12.2019 for the gross insured amount of Rs. 3,00,000/- for which an additional amount of Rs. 500/- is being paid to the opposite parties which was issued by the Bajaj Finance Limited at the time of loan agreement bearing No. L2WBRL06676476 for purchasing of Bajaj Platina. 

5. It is further alleged that the deceased Jaspreet Singh met with a road accident on dated 19.4.2019 on the negligence of offender Innova vehicle and the Jaspreet Singh died due to rash and negligent act of the Innova Vehicle. The complainant being the legal heir of the deceased Jaspreet Singh lodged the claim with the opposite parties but the opposite party instead of giving the claim of Rs. 15,00,000/- of policy No. OG-19-1217-1843-00007757 issued on 17.12.2018 issued the claim of the policy No. OG-19-1000-6401-00857551 issued on 25.12.2018 for the amount of Rs. 2,52,783/- on 3.9.2019 and issued letter dated 5.9.2019 vide which they repudiated the claim of the complainant. In this letter they mentioned that letters sent to you on 1.7.2019, 9.7.2019, 26.7.2019 and 2.8.2019 for which your goodself have failed to submit any reply till date. Therefore in the absence of any response from your side we have no option except to repudiate the claim. Further, it is alleged that no such letters were received by the complainant and opposite party is running from their liability of the claim of Rs. 15 lacs. 

6. It is further alleged that the complainant issued a notice to the opposite party No. 1 dated 5.9.2019 but to no effect, which is deficiency in service and unfair trade practice on the part of the opposite parties. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite parties may be directed to released Rs. 15,47,217/- of claim amount pending out of total Rs. 18,00,000/- alongwith interest up to date at the rate of 12% per annum.     

2) To pay Rs. 20,000/- on account of compensation for mental and physical agony and harassment.             

3) To pay Rs. 5,000/- as litigation expenses.  

4) Any other relief to which the complainant is found to be entitled. 

7. Upon notice of this complaint, the opposite party No. 1 filed written version taking preliminary objections interalia on the grounds that the present complaint is abuse of process of law, no deficiency in service, complaint being false and competent court is civil court as present matter requires voluminous evidence. 

8. On merits, it is admitted that insured Jaspreet Singh had got insured the said motorcycle of Rs. 43,606/- with the answering opposite party vide Long Term Two Wheeler Package Policy bearing No. OG-19-1217-1843-00007757 for the period from 17.12.2018 to 16.12.2023 by paying premium of Rs. 5,944/- which includes the premium of Rs. 750/- on account of coverage of personal accident for owner-driver for sum assured of Rs. 15,00,000/- for the period from 17.12.2018 to 16.12.2019 subject to terms and conditions of the policy. Further, the complainant to obtain claim amount from the answering opposite party had intimated a claim with the answering opposite party submitted claim documents in support with the claim form on account of damage of motorcycle and on account of death of insured who got insured his motorcycle and same was registered as Claim No. OC-20-1203-1843-00000094 by the answering opposite party. Further, the complainant intimated the claim after one month from the date of loss as loss was occurred on 19.4.2019 whereas claim was intimated on 18.5.2019 which is also violation of policy conditions. 

9. It is further submitted by the opposite party No. 1 that the claim of the complainant was duly processed by way of appointment of investigator who had minutely conducted the investigation and submitted his report dated 12.6.2019 in which it is mentioned that three people were riding the insured motorcycle whereas seating capacity of two persons maximum. As per this report the said motorcycle was driven by insured Jaspreet Sharma and Rishabh was sitting in the centre and Arshdeep Singh was sitting on the back at the time of accident. So, the insured motorcycle was subjected to overload beyond its capacity and same was being driven in violation of the Motor Vehicle Act and Rules and also breached the terms and conditions of the policy. Further, it is also mentioned in the FIR that three people were traveling on the motorcycle whereas the seating capacity of the motor was only for two persons. Further, the motorcycle was being driven by the insured and pillion riders without wearing protective Helmet which is also violation of the Motor Vehicle Act and Rules and breached the conditions of the policy.  Further, after investigation the opposite party issued letter dated 1.7.2019, 9.7.2019, 26.7.2019 and 2.8.2019 asking the claimant why her claim should not be repudiated by mentioning the reason of repudiation that the policy purchased by insured is for seating capacity of two persons maximum but as per information three persons were riding the insured motorcycle which is overload and directly contributed to the loss but complainant failed to reply any of said letters and filed the present complaint. 

10. On merits, the opposite party No. 1 reiterated all the facts as mentioned in the preliminary objections. However, it is admitted that Rs. 2,52,783/- was paid to the insured against policy No. OG-19-1000-6401-0085755. However the claim related to the policy No. OG-19-1217-1843-00007757 was repudiated vide letter dated 5.9.2019 on the ground that the insured have not provided any explanation with regard to the letters sent to her and as per terms and conditions of the policy. Lastly, they prayed that there is no deficiency in service on the part of the answering opposite party and prayed for the dismissal of the present complaint. 

11. The opposite party No. 2 not appeared before this Forum despite service through RC and AD so the opposite party No. 2 was proceeded against exparte vide order dated 7.1.2020.  

12. In support of her complaint, the complainant tendered into evidence copy of voter Card Ex.C-1, copy of FIR Ex.C-2, copy of insurance policy issued on 17.12.2018 Ex.C-3, copy of driving license Ex.C-4, copy of RC Ex.C-5, copy of insurance policy issued on 26.12.2018 Ex.C-6, copy of death certificate Ex.C-7, copy of postmortem report Ex.C-8, copy of statement of account Ex.C-9, copy of repudiation letter dated 5.9.2019  Ex.C-10, copy of notice Ex.C-11, postal receipt Ex.C-12, affidavit of Jasvir Kaur Ex.C-13 and closed the  evidence.   

13. To rebut the case of the complainant, the opposite party No. 1 tendered into evidence affidavit of Saurav Khullar Ex.OP-1/1, copy of policy Ex.OP-1/2, copy of terms and conditions Ex.OP-1/3, copy of letter dated 1.7.2019 Ex.OP-1/4, copy of letter dated 9.7.2019 Ex.OP-1/5, copy of letter dated 26.7.2019 Ex.OP-1/6, copy of letter dated 2.8.2019 Ex.OP-1/7, copy of letter dated 5.9.2019 Ex.OP-1/8, copy of dispatch postal receipts Ex.OP-1/9 to Ex.OP-1/13, copy of FIR Ex.OP-1/14, copy of investigation report Ex.OP-1/15, copy of Surveyor report Ex.OP-1/16, copy of claim form Ex.OP-1/17, copy of statement Ex.OP-1/18 and closed the evidence.   

14. We have heard the learned counsel for the parties and have gone through the record.

15. It is admitted case of the complainant that Jaspreet Sharma purchased policy Ex.C-3 from the opposite party for his new motorcycle for the period from 17.12.2018 to 16.12.2023 in which he also paid Rs. 750/- for the personal accident cover for owner-driver for sum insured of Rs. 15,00,000/- for the period from 17.12.2018 to 16.12.2019. From copy of FIR dated 20.4.2019 Ex.C-2, copy of death certificate of Jaspreet Sharma Ex.C-7 and copy of postmortem report Ex.C-8 it is proved on the file that insured Jaspreet Sharma died on 20.4.2019 due to road side accident within the validity period of the personal accident cover for owner-driver of the  policy Ex.C-3. Further, from copy of driving license of Jaspreet Sharma Ex.C-4, copy of RC Ex.C-5 and copy of FIR Ex.C-2 it is proved on the file that the insured Jaspreet Sharma was the owner of the motorcycle involved in the accident and at the time of accident he was driving the said motorcycle and personal accident cover is for owner-driver of the vehicle.  Further, from copy of Group Personal Accident Policy Ex.C-6 it is proved on the file that Jaspreet Sharma also purchased another Group Personal Accident Policy by paying Rs. 500/- as premium for sum insured of Rs. 3,00,000/-. It is admitted by the opposite party No. 1 in their version and also proved from copy of statement of account Ex.C-9 that under Group Personal Accident Policy they already paid the claim of Rs. 2,52,783/- to the complainant. But it is proved on the file vide copy of letter Ex.C-10 that they have repudiated the claim under policy No. OG-19-1217-1843-00007757 which was for the sum assured of Rs. 15,00,000/- on the ground that the legal heir of Jaspreet Sharma failed to submit the reply of the four letters Ex.OP-1/4 to Ex.OP-1/7 sent to him/her. 

16. The opposite party No. 1 in letters Ex.OP-1/4 to Ex.OP-1/7 mentioned that the policy purchased by the insured for seating capacity of 2 person maximum but as per information 3 persons were riding with the consent of insured at the time of accident so policy contract has been violated and insured directly contributed to the loss. To rebut this objection of the opposite party No. 1 firstly we carefully perused the FIR copy of which is Ex.C-2 in which it is mentioned that on 19.4.2019 Arshdeep Singh, Jaspreet Sharma and Rishab Dhiman were going on the motorcycle of Jaspreet Sharma which was driving by Jaspreet Sharma bearing registration No. PB-19-S-2504 and when at 11.45 PM they reached light point of Sector 14/15 then one Innova Car from PU Gate No. 2 came on very high speed and turned towards Sector 15 while crossing Red Light struck the motorcycle of Jaspreet Sharma on which all the three riders fallen on the road and driver of the Innova car ran from the spot. It is further mentioned in this report that in this accident Jaspreet Sharma and Rishab Dhiman badly injured and vehicle of PCR taken them to PGI. It is further mentioned in this FIR Ex.C-2 that the accident was occurred due to the high speed and negligence driving of the driver of the Innova car. It is proved on the file vide copy of postmortem report Ex.C-8 that Jaspreet Sharma died on 20.4.2019. This FIR has also tendered by the opposite party No. 1 in their evidence as Ex.OP-1/4 which proved that they are also agreed with the contents of this FIR. Further, the same story is also mentioned in the investigation report Ex.OP-1/15, motor insurance claim form Ex.OP-1/17 and copy of statement of Krishan Chand father of deceased Jaspreet Sharma. From all these documents one thing is crystal clear on the file that in the accident in which Jaspreet Sharma died there is no fault in the driving of said Jaspreet Sharma or it was due to three persons riding on a motorcycle which has a capacity of two persons, rather it is clear cut mistake of driver of Innova car who driving the said car on very high speed and jumped the red light and then struck the motorcycle of Jaspreet Sharma in which he died at PGI on 20.4.2019. The opposite party No. 1 not tendered any evidence which proved that there is any contribution of Jaspreet Sharma in the accident or due to three persons riding on a motorcycle. So, as there is no fault on the part of Jaspreet Sharma insured in this accident so the objection of the opposite party that Jaspreet Sharma directly contributed in the loss is without any basis and without any evidence. 

17. The Hon'ble High Court of Punjab and Haryana at Chandigarh in FAO No. 1575 of 2013 and FAO No. 1671 of 2013 decided on 19.2.2020 held as under.-

“Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside.”

This latest judgment of Hon'ble High Court of Punjab and Haryana at Chandigarh is fully applicable to the facts of the present complaint. In the present complaint also the opposite party failed to file any evidence which may prove that deceased Jaspreet Sharma has any contribution in the accident so in the present complaint the repudiation of the claim on this ground is clear cut deficiency in service and unfair trade practice on the part of the opposite party No. 1.

18. Further, in the written version opposite party No. 1 admitted that they have paid Rs. 2,52,783/- to the complainant as claim of policy No. OG-19-1000-6401-00857551 Ex.C-6 against the claim of Rs. 3,00,000/- which also proved from the copy of statement of account of complainant Ex.C-9. But we cannot understand when the opposite party paid the insurance claim in one policy Ex.C-6 for the same accident then as to why for the same accident they repudiated the claim in other policy Ex.C-3. This act of the opposite party also proved that the repudiation of the claim in the policy Ex.C-3 by the opposite party No. 1 is not on the genuine ground as for the same accident the opposite party No. 1 already paid the insurance claim to the complainant for the death of same person Jaspreet Sharma. So, this is also a clear cut deficiency in service and unfair trade practice on the part of the opposite party No. 1.

19. The Hon'ble Punjab and Haryana High Court at Chandigarh in case titled New India Assurance Company Limited Versus Smt. Usha Yadav and others 2008(3) RCR (Civil) Page-111 held as under.-

“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs. 5,000/- for luxury litigation being rich.”

This citation is also fully applicable to the facts of present case as in the present matter also the opposite parties earned premium from the policyholder insured Jaspreet Sharma but at the time when complainant lodged insurance claim then opposite parties repudiated the claim on the wrong ground, which is clear cut deficiency in service and unfair trade practice on their part and they are liable to pay the claim to the complainant.  The complainant also prayed for the remaining amount of Rs. 47,217/- of the policy Ex.C-6 which is for the sum assured of Rs. 3,00,000/- and complainant already received the amount of Rs. 2,52,783/- from the opposite party No. 1 on 3.9.2019 which is proved from the copy of the statement of account of the complainant Jasvir Kaur Ex.C-9 but she is not entitled for this amount as she already received the amount of Rs. 2,52,783/- without any protest. 

20. As a result of our above discussion and citation of the Hon'ble High Court of Punjab and Haryana at Chandigarh, there is merit in the present complaint and same is partly allowed. Accordingly, the opposite party No. 1 is directed to pay Rs. 15,00,000/- (Fifteen Lacs Only) to the complainant on account of insurance claim due to accidental death of insured Jaspreet Sharma. The opposite party No. 1 is also directed to pay Rs. 10,000/- to the complainant as consolidated amount of compensation on account of mental tension, harassment and litigation expenses. The opposite party No. 1 is also directed to deposit Rs. 5,000/- as costs in the Consumer Legal Aid Account maintained by this Forum. Compliance of the order be made within the period of 30 days from the date of the receipt of the copy of this order, failing which the opposite party No. 1 is directed to pay the above mentioned amount of Rs. 15,00,000/- (Fifteen Lacs Only) to the complainant alongwith interest at the rate of 6% per annum from the date of order till actual realization. Copy of this order be supplied to the parties free of costs. The file be consigned to the records after its due compliance. 

ANNOUNCED IN THE OPEN FORUM:

        19th Day of May 2020

 

 

 

            (Kuljit Singh)

            President

              

(Tejinder Singh Bhangu)

Member