Haryana

Charkhi Dadri

cc/40/2019

Mahender Singh - Complainant(s)

Versus

Cholamandalam MS General Insurance Company Ltd - Opp.Party(s)

Sh. Prem Singh

07 Jun 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHARKHI DADRI

                              

                                                          Complaint Case No. 43 of 2019

                                                         Date of Institution: 18.2.2019

                                                          RBT No.                 40 of 02.09.2019

                                                          Date of Decision: 07.06.2024

Mahender Singh (since deceased) son of Sh. Kashi Ram through his LRs (i) Smt. Jagmanti widow, (ii) Sumit son, (iii) Monika daughter of Late Sh. Mahender Singh, all resident of village Harodi, Thesil & District Charkhi Dadri.

                                                                               ….Complainant.

                                                                                       

                                      Versus

1. Cholamandlam Ms General Insurance Co. Ltd., 2^nd Floor, Dare House, 2    NSC Bose Road, Chennai-600 001.
2. M/s Indusind Bank Ltd. Upstair Axis Bank, Loharu Road, Charkhi   Dadri, Tehsil & District Charkhi Dadri

                                                                        ....Opposite Parties. 

COMPLAINT UNDER THE CONSUMER PROECTION ACT.

 

BEFORE: - Hon’ble  Shri Manjit Singh Narayal, President

                   Hon’ble Shri Dharam Pal Rauhilla, Member

 

Present:-  Shri Prem Singh Yadav, Advocate for complainant.

     Shri Satender Ghangas, Advocate for OP no.1.

     Shri R.K. Verma, Advocate for OP no. 2.

 

ORDER:-

                   Brief facts of the present case are that deceased  Shri Sunil Kumar son of the complainant had paid the premium of Rs.3998/- for Group Personal Accident Policy  for his vehicle no. HR-61C/1725 i.e. Heavy Goods Vehicle Open Body Truck vide policy certificate No. 2841/00179237/002/00 for the period from 29.03.2016 to 28.03.2020 for  a sum of Rs. 15,00,000/-. As per insurance policy, if the insured had died due to any accident, fatal injuries etc. the insurance company is liable to pay a sum of Rs. 15,00,000/-. The deceased Sunil Kumar was a owner of two trucks vehicles no. HR-61C/1725 and HR84/6625. On dated 16.06.2018 both the vehicle started from Falod after loading Salt. The vehicle no. HR-61-C/1725 driven by Ram Niwas and Vehicle No. HR-84/6625 was driven by deceased Sunil Kumar himself. Both trucks were parked at Kuldeep Najat Hotel Village Sheopura and they slept there. On the night of 16.06.2018 at about 3 AM son of the complainant Shri Sunil Kumar woke up and went to natural call in open land and went towards the railway line. When heavy wind blows started. All of sudden a train came from Hisar side and when the son of the complainant tried to cross the railway line he met with train accident and  sustained injuries and son  of the complainant Shri Sunil died. GD no. 055 dated 16.06.2018 was registered in Police Station, Rajgarh. It is alleged that thereafter post mortem was conducted in Shri Phoolchand Rajgariya Government Referral, Hospital, Rajgarh, Churu on 16.06.2018. It is further alleged that after the death of Sunil, the complainant submitted claim form as well as necessary documents for obtaining the insured amount of his deceased son Sunil in the office of OPs and the OPs assured the applicant to disburse the amount of claim of the policy. It is alleged that on dated 05.09.2018, the OPs dispatched a letter regarding the above said claim,  which was repudiated with comment that “any loss of which a contributing cause was the insured’s actual or attempted commission of, or willful participation in, an illegal act or any violation or attempted violation of the law or resistance  to arrest.”  The complainants further alleged that due to the act and conduct of the OPs, they had to suffer mental agony, humiliation and harassment. Hence, it amounts to deficiency in service on the part of respondents and as such they had to file the present complaint for seeking compensation.

2. On appearance, OPs no. 1  filed written statement alleging therein that as

per certificateof insurance producedby the complainant,the nominee of the insured was Indusind Bank Ltd..  On perusal of the documents submitted by the complainant, the statements received and the independent service provider report, it was observed that the insured since deceased went to answer the call of nature towards the railway line that at that time fast sand storm was blowing and at the same time train hit the insured due to which he died at the spot. It is a matter of common knowledge and also a matter of law that the crossing of railway track is trespassing and is a punishable offence under the Indian Railways Act, 1989. This act on the part ofdeceased amounted to and was in violation of the law which unfortunately attracts the provisionsof policy explanation no.7 of the policy obtained by the insured which is reproduced as under:-

Part II (Exclusions) Clause 7.”

This policy does not provide benefits for any death, disability, expense or loss incurred in result of any injury attributable directly or indirectly to the following;

“If any loss of which a contributing cause was the insured’s actual or attempted commission of, or willful participation in, an illegal act or any violation or attempted violation of the law or resistanceto arrest.”

Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of opposite party no. 1 and complaint of the complainant is liable to be dismissed with costs.

3. OP No. 2 viz. Indusind Bank Ltd, the financer of the vehicles, on appearance also filed separate written statement alleging therein that Sunil Kumar S/o Mahender had approached the OP no.2 for sanction loan of Rs. 17,75,000/- for purchase of commercial vehicle. OP no.2 (Indusind Bank Ltd) acceded the request and sanctioned loan of Rs. 17,75,000/- which was to be repaid in 48 installments. The agreement value of this loan Account was Rs. 23,25,700/-. At the request of borrower, personal accident policy was taken by the answering OP from OP no.1. It has been reported by the family members that he had died on 16.06.2018. Intimation in this regard was given to OP no.1. On the request of mother of the deceased, the vehicle had been transferred in the name of her mother Smt. Jagmati wife of Sh. Mahender. The OP no.1 is duty bound to process the claim and make the claim amount in the loan account of deceased Sunil and to adjust the said amount in the outstanding of the loan account. The Borrower is a chronic defaulter and did not make of the payment of installments as per agreement. After the death of borrower his mother is also not paying the installments regularly. The legal heir of deceased Sunil are liable to make the payment for remaining loan amount and other incidental charges as per terms and conditions of the loan agreement. OP no.2 has mentioned in its written statement that a sum of Rs. 7,78,811/- was due as on 30.04.2019. However, subsequently as per statement of account submitted in this Commission generated on 16.09.2020 by OP no.2, the said loan account has been closed as mentioned under Head-New Status-Closed (Annexure R3).

The complainant is liable to pay the aforesaid amount to the answering OP. There is bank clause in the insurance policy and as such if any amount is ordered to be paid by the OP no.1, the same may kindly be paid to the answering OP no.2 being financer of the vehicle and to cover the risk of personal accident under group insurance policy. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of answering OP no.2 and complaint of the complainant is liable to be dismissed against the OP no.2 and prayed that if any claim is ordered to be paid to the complainant by OP no.1, the same may kindly be ordered to be paid to OP no.2, the Indusind Bank Ltd..

4.                In order to make out his case, the counsel for complainant has tendered documents Ex.C-1 to Ex.C-7 alongwith supporting affidavits Ex.CW1/A and Ex.CW2/A and closed the evidence on 18.08.2020.

5.                Ld. Counsel for the OP no.2 has tendered into evidence affidavit Ex.R1 and documents Annexure R1 to annexure R3 and closed the evidence on 12.01.2021.

6.                Ld. Counsel for the OP no.1 has tendered into evidence affidavit Ex.RW-1/A and documents Ex.R4 to Ex.R12 and closed the evidence on 13.09.2021

7.                     We have heard the arguments advanced by the learned counsels for all the parties. All the documents have been perused carefully and minutely.

8.              During the course of arguments, the learned counsel of complainant reiterated the contents of the complaint filed by the complainant and has drawn the attention of this Commission towards the documents placed on record on his behalf. The learned counsel for the OPs also reiterated the contents of written statement filed OPs and also drawn the attention of this Commission towards the documents placed on record by the OPs.

9.                Learned counsel for the complainant contended that the respondent has wrongly and illegally repudiated the claim of complainant because no cogent and convincing evidence was produced by the respondent to prove that death of the deceased Sunil Kumar s/o Shri  Mahender Singh, was not accidental death. The storm and coming across the train was incidental death caused accidentally and the same cannot be turned as attempted commission and willful participation in illegal act. Hence, repudiation of claim of the complainant vide letter dated 05.09.2018 is invalid and liable to be set aside and the complaint of the complainant is liable to be accepted. 

10.  
11.  

As per insurance policy Ex.R12, the accident means a sudden, unforeseen and unexpected physical event caused by external, violent and visible means. In this case it has been admitted that death was due to train accident as deceased Sunil Kumar was hit by the train and died.

12.  

                        It is established that death of the insured was caused due to train accident as evident from Registration of Unnatural death (Ex.C4). Post Mortem Report (Ex.C5) and report of Star Investigators dated 10.08.2018 appointed by the OP no.1 (Ex.R8) and death caused due to accident is covered under the insurance policy.

13.                        Hence, in view of the facts and circumstances mentioned above, the claim of the complainant was wrongly and illegally repudiated by the OP no.1 and there is deficiency in service on the part of OP no.1. Therefore, repudiation letter dated 05.09.2018 issued by the OP no.1 (Cholamandlam MS General Insurance Company Ltd.) is hereby set aside. It is also evident from loan account statement submitted by OP no.2 (Annexure R3) that loan account has been closed with OP no.2. So, in view of the circumstances mentioned above the complaint of the complainant is allowed with costs and the OP no.1 is directed:-

1. To pay Rs.15,00,000/- the sum insured along with interest @ 9 % p.a. w.e.f. 05.09.2018 i.e. from the date of repudiation till its final payment to the  LRs of Sh. Mahender Singh who had filed this complaint viz. Smt. Jagmanti widow, (ii) Sumit, son (iii) Monika, daughter of Late Sh. Mahender Singh, all resident of village Harodi, Thesil & District Charkhi Dadri in equal shares after obtaining No Dues Certificate for the loan availed by the deceased life insured Sh. Sunil Kumar from OP no.2 viz. Indusind Bank Ltd.
2. To pay Rs.5,000/- on account of mental agony, and harassment etc.
3. To pay Rs. 5,000/- as litigation expenses.

14.                    The above order be complied within 45 days from the date of this order failing which OP no.1 shall pay interest @12% per annum.

15.              Certified copies of order be supplied to the parties free of costs.

16.              File be consigned to the record room after due compliance.