DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 13 of 7.1.2008 Decided on : 28.5.2008 <br /> <br /> Shanti Devi W/o Lachhman Dass, R/o Street No. 2, Amarpura Basti, Near Sirsa Phatak, Bathinda. ... Complainant<br /> Versus<br /> <br /> 1.Cholamandlam MS General Insurance Company Ltd., Office 303, 3rd Floor, Novelty Plaza, Bhai Bala Chowk, Ludhiana through its Manager.<br /> 2.Cholamandlam MS General Insurance Company Ltd.,Regd. Head Office Dara House, 2nd Floor, No. 234, N.S.C Bose Road, Chennai-600 001 through its Manager/Incharge/C.M.D.<br /> 3.Gurminder Singh S/o Kishan Singh, R/o V.P.O Channo now R/o 3031-A, Guru Nanak Sector, Dr. K.K Nauharia Street, Bathinda.<br /> ..... Opposite parties<br /> <br /> Complaint Under Section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Naresh Garg, Advocate<br /> For the opposite parties : Sh. Ashok Bharti,counsel for opposite parties No.1&2<br /> : Sh. S.M. Goyal, counsel for opposite party No.3 <br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. This Complaint under section 12 of the Consumer Protection Act,1986 (Here-in-after referred to as the Act) has been preferred by the complainant seeking direction from this Forum to the opposite parties to pay her Rs.1,00,000/- alongwith interest @ 18% P.A from the date of death of Vinod Kumar till payment; Rs.25,000/- as damages/compensation for mental agony and pains and Rs.10,000/- as costs.<br /> 2. Version of the complainant lies in the narrow compass as under :- <br /> Gurminder Singh opposite party No. 3 is the owner of new vehicle Toyota Innova bearing temporary No. PB-10-BP-3322 (Engine No. 9836329 and Chassis No. 7076327). Comprehensive insurance of this vehicle was purchased from opposite parties No. 1 & 2 vide cover note No. 5006717 w.e.f 13.3.2007 to 12.3.2008. Insurance policy was not issued. Opposite parties No. 1 & 2 have also covered the insurance of Rs.1,00,000/- for each of seven unnamed occupants under personal accident policy. Rs.350/- were charged as premium for seven occupants i.e. Rs.50/- for each. Vehicle has the seating capacity of 1+7 i.e. one driver and seven occupants. Vinod Kumar son of the complainant alongwith his wife Meera Rani was coming in this vehicle from Kalianwali to Bathinda on 20.4.2007. When it had reached in the revenue limits of Police Station Sangat,Bus No. HR-57-1386 was hit against it. Driver of the Toyota Innova, Vinod Kumar and Meera Rani had died at the spot in this accident. Criminal case with FIR No. 38 dated 21.4.2007 was registered against Baljit Singh Driver of Bus of Haryana Roadways as he had caused the accident. Vehicle Toyota Innova was totally damaged. Opposite party No. 3 lodged the claim of his vehicle with opposite parties No. 1 & 2. Intimation was also given by him to opposite parties no. 1& 2 regarding the deaths of Vinod Kumar, Meera Rani and his driver. Requisite documents i.e. insurance cover note, registration certificate, FIR and post mortem report were also submitted by him. Complainant claims that she is the only class one legal heirs of deceased Vinod Kumar as his wife has also died in the accident and he was issueless. She had also lodged the claim of his son and daughter-in-law with opposite parties No 1 & 2 vide registered letter dated 30.5.2007. Opposite parties No. 1 & 2 had appointed Mr. Satish Bansal as Investigator who had visited her house many a times. All the necessary documents were taken by him i.e. post mortem reports and FIR etc. She was assured by the Investigator that both Vinod Kumar and Meera Rani are duly covered under personal accident insurance vide cover note and claim of both of them to the tune of Rs. 1,00,000/- for each would be paid. Investigator had taken her thumb impression and signatures on some blank papers, blank vouchers and blank consent letter with the assurance that claim would be paid within 15/20 days. She and her husband wrote registered letters dated 22.6.2007 and 5.7.2007 to the opposite parties demanding the amount of claim. No reply has been sent by the opposite parties nor claims have been paid. Act and conduct of the opposite parties have caused her mental tension, pain and sufferings.<br /> 3. Opposite parties No. 1 & 2 filed reply of the complaint taking preliminary objections that this Forum has got no jurisdiction to entertain and try the complaint; vehicle was being used in contravention of the limitations as to use contained in the policy as total nine persons were seating in it at the time of accident despite the fact that its seating capacity was eight persons including the driver; complaint is not maintainable; she has concealed material facts and has not come with clean hands; complaint is of complicated nature and it requires lot of witnesses and their cross-examination and as such, it cannot be decided by this Forum in summary proceedings; they were ready to process the claim as per rules and policy but complainant did not complete the formalities and has not sent the required documents such as claim form; death certificate, legal heirs certificate and no objection certificate from the family members for the payment of the compensation and complaint is pre-mature. On merits, they do not deny the ownership of the vehicle and its comprehensive insurance vide cover note No. 5006717 for the period from 13.3.2007 to 12.3.2008. They deny that insurance policy was not issued. Seating capacity of the vehicle was 1+7 i.e. one driver and seven occupants. They do not deny the accident of this vehicle with the Bus and and registration of the case against Baljit Singh Driver of the Bus. They admit that driver of the Toyota Innova, Vinod Kumar and his wife Meera Rani had died in the accident. They deny that Toyota Innova was totally damaged. Complainant did not lodge any claim. Investigator was appointed. Complainant did not co-operate with him. They deny that documents were submitted by the complainant to the Investigator and her signatures were obtained on blank papers. Reply of the notice of the complaint was sent. Delay in payment of the compensation is due to failure of the complainant in submitting the documents and in lodging a regular claim.<br /> 4. Opposite party No. 3 filed separate reply of the complaint stating that complainant has no locus-standi and cause of action to file the complaint against him; his vehicle was duly insured with opposite parties No. 1 & 2 vide cover note No. 5006717 for the period 13.3.2007 to 12.3.2008. It was a cashless policy. As per terms and conditions of the policy, any litigation regarding this vehicle is liable to be defended by the insurance company but they have illegally refused to defend him; specific amount for personal accident benefit of unnamed occupants was charged and as such, opposite parties no. 1 & 2 should have paid the personal accident claim amount to the legal heirs of the deceased. Original insurance policy of the vehicle was not supplied; complainant is estopped from filing the complaint by her act and conduct; she has also filed claim petition under the Motor Vehicle Act and as such, this complaint is not maintainable. Opposite parties No. 1 & 2 have not paid own damage claim to him. Intimation regarding the accident was duly given to opposite parties no. 1 & 2 through their authorised agent. All the requisite documents were handed over by him to opposite parties No. 1 & 2. Mr. Satish Bansal was appointed as Investigator who had obtained his signatures on some blank papers. He apprehends that some documents might not have been prepared or fabricated on blank signed papers. He does not admit the remaining averments in the complaint.<br /> 5. In support of her allegations and averments in the complaint,Shanti Devi complainant tendered into evidence her own affidavit (Ex.C.1), affidavit (Ex.C.2) of her husband Lachhman Dass, photocopy of insurance cover note (Ex.C.3), photocopy of temporary registration certificate (Ex.C.4), photocopy of FIR dated 21.4.2007 (Ex.C.5), photocopy of post mortem report (Ex.C.6),photocopies of letters dated 30.5.2007, 22.6.2007 & 5.7.2007 (Ex.C.7, Ex.C.8 & Ex.C.11) respectively and photocopies of postal receipts (Ex.C.9 & Ex.C.10).<br /> 6. On behalf of the opposite parties, reliance is placed on affidavits (Ex.R.1 & Ex.R.6) of S/Sh. Gurminder Singh opposite party No. 3 & Rajesh Kumar Arora, Senior Manager-Claims of opposite parties No. 1 & 2 respectively, photocopy of notice dated 22.5.2007 alongwith postal receipt (Ex.R.2),photocopies of letters dated 12.6.2007 & 10.7.2007 (Ex.R.3 & Ex.R.4), photocopy of certificate dated 7.5.2007 (Ex.R.5), photocopy of FIR (Ex.R.7), photocopies of statements of Lachhman Dass,Karamjit Kaur and Gurminder Singh (Ex.R.8 to EX.R.10)respectively, photocopy of investigation report dated 27.6.2007 (Ex.R.11), photocopy of registration certificate (Ex.R.12), photocopy of survey report dated 25.7.2007 (Ex.R.13), photocopy of terms of insurance (Ex.R.14) and photocopies of orders dated 4.1.2008 (Ex.R.15 & Ex.R.16). <br /> 7. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the complainant.<br /> 8. Some facts do not remain in dispute. They are that opposite party No. 3 is the owner of new vehicle Toyota Innova, the temporary registration No. of which was PB-PB-10-BP-3322. Copy of the temporary certificate of registration is Ex.C.4. It was got comprehensively insured with opposite parties No. 1 & 2 for the period 13.3.2007 to 12.3.2008. Copy of the insurance cover note is Ex.C.3. Opposite parties No. 1 & 2 also covered the insurance of Rs.1,00,000/- for each of seven unnamed occupants under personal accident policy. Rs.350/- were charged for seven occupants i.e. Rs.50/- for each. This vehicle has the seating capacity of 1+7 i.e. one driver and seven other occupants. It had met with an accident on 20.4.2007. Driver Baljit Singh and two out of the occupants namely Vinod Kumar and Meera Rani had died. Criminal case was registered in Police Station Sangat. Copy of the FIR is Ex.C.5. Dead body of Vinod Kumar was subjected to post mortem examination, copy of which is Ex.C.6. Matter was reported to opposite parties No. 1 & 2 by opposite party No.3 regarding the accident and deaths of Baljit Singh, Vinod Kumar and Meera Rani. On receiving the intimation, opposite parties No. 1 & 2 had appointed Mr. Satish Bansal as Investigator.<br /> 9. One of the preliminary objections taken by the opposite parties is that complaint is of complicated nature and it requires the examination of lot of witnesses and their cross-examination and as such, the same cannot be decided in summary procedure by this Forum. This objection is not tenable in view of the observations of their Lordships of the Hon'ble Supreme Court in the case of CCI Chambers Co-operative Housing Society Ltd. Vs. Development Credit Bank Ltd.-III(2003)CPJ-9(SC) in which it has been held that merely because recording of evidence is required or some questions of law and facts arise which need to be investigated and determined, cannot be a ground for shutting the door of any Forum under the Act to the person aggrieved. Similar view has been held by their Lordships of the Hon'ble Apex Court in the case of J.J. Merchants Vs. Shrinath Chaturvedi-III(2002)CPJ-8 (S.C.). Moreover, parties have closed their evidence of their own. None of them brought to our notice that some other evidence was to be led and it could not be led as this Forum is deciding the matter in summary procedure. Hence, objection is not sustained.<br /> 10. Plea of opposite parties No. 1 & 2 is that this complaint is not maintainable as claim application is already pending before Motor Accidents Claim Tribunal, Bathinda. There is no substance in it. This Forum is to determine as to whether there is deficiency in service and unfair trade practice on the part of the opposite parties. They cannot be adjudicated by the Motor Accidents Claim Tribunal. Areas of jurisdiction of this Forum and the Motor Accidents Claim Tribunal for decision are quite different. Accordingly,this complaint for alleged deficiency in service is maintainable before this Forum.<br /> 11. Arguments pressed into service by Mr.Garg, learned counsel for the complainant are that complainant had lodged the claim of his son and daughter-in-law with the opposite parties vide registered letter dated 30.5.2007 copy of which is Ex.C.7. Investigator had taken the necessary papers i.e. copies of the post mortem reports and FIR etc. Complainant and her husband had sent registered letters dated 22.6.2007 and 5.7.2007, copies of which are Ex.C.8 & Ex.C.11 respectively. Till date,opposite parties No. 1 & 2 did not send replies. Claim amount has not been paid.<br /> 12. Mr. Bharti, learned counsel for opposite parties No. 1 & 2 argued that complainant did not send the required documents such as claim form, death certificate, legal heir certificate and no objection certificate from the family members for payment of the compensation and as such, complaint is pre-mature as no claim has been lodged. Claim is not maintainable as insured has violated the terms and conditions of the policy concerning the limitations as to use as ill-fated Toyota Innova was carrying nine passengers as against the prescribed seating capacity of eight passengers (7+1). For this, he drew our attention to the copies of the statements of Lachhman Dass, Karamjit Kaur and Gurminder Singh which are Ex.R.8 to Ex.R.10. Copy of the investigation report of Sh. Satish Kumar Bansal is Ex.R.11 and affidavit of Sh. Rajesh Kumar Arora, Senior Manager (Claims) is Ex.R.6.<br /> 13. We have considered the respective submissions. So far as the plea of the opposite parties No. 1 & 2 that complainant did not complete the formalities by way of sending the required documents such as claim form, death certificate, legal heirs certificate and no objection certificate from the family members for payment of the compensation is concerned, the same is unfounded and baseless. Learned counsel for opposite parties No 1 & 2 failed to show us any document according to which these documents were ever demanded by them. To the contrary, complainant and her husband issued letter copies of which are Ex.C.7, Ex.C.8 & Ex.C.11 requesting opposite parties No. 1 & 2 to pay the personal accident claim amounts concerning Vinod Kumar and Meera Rani but they did not deem it fit to send replies of them. Through these letters, opposite parties no. 1 & 2 were intimated that requisite documents have already been handed over to Sh. Satish Kumar Bansal Investigator. Deaths of Vinod Kumar and Meera Rani are not in dispute. In such a situation, the production of death certificates becomes irrelevant. Learned counsel for opposite parties no. 1 & 2 could not show us any provision according to which legal heirs and no objection certificate from the family members is essential for passing the personal accident claim. Moreover, complainant has made it clear in para No. 9 of the complaint that she is the only class one legal heir being the mother of Vinod Kumar as his wife has also died in the accident and he was issueless. This stands corroborated with her affidavit Ex.C.1 and the affidavit of her husband Lachhman Dass which is Ex.C.2. Accordingly, no other conclusion can be arrived at than the one that complainant is the only class one legal heir of deceased Vinod Kumar. Complaint cannot be said to be pre-mature as there is no evidence that opposite parties No. 1 & 2 sent any claim form to the complainant for submitting the same after completing it. First application for getting the claim was given by the complainant and her husband on 30.5.2007 as is clear from Ex.C.7. Reasonable time period for taking decision by an insurer is three months as has been held by their Lordships of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. MKG Corporation-III(1996)CPJ-8 (SC). Opposite parties did not take any decision concerning the request of the complainant and her husband for payment of the personal accident claims nor did they send any claim forms etc. or apprised the complainant that same other formalities are required to be completed by her. Opposite parties cannot keep the matter pending indefinitely. In the circumstances, it does not lie in the mouths of opposite parties No. 1 & 2 that complaint is pre-mature.<br /> 14. Another question for determination is as to whether there is any contravention of the terms and conditions of the policy concerning limitations as to use. Opposite parties No. 1 & 2 are alleging that seating capacity of the vehicle was 1+7, whereas at the time of accident, nine persons were seating in it. For this, they are relying upon copies of the statements Ex.R.8 to Ex.R.10 and report of Sh.Satish Kumar Bansal Investigator, copy of which is Ex.R.11. As emerges from Ex.R.8 to Ex.R.10, statements were recorded by Sh.Satish Kumar Bansal Investigator. No affidavit of Sh. Satish Kumar Bansal has been produced to substantiate that he had correctly corrected the statements of Lachhman Dass, Karamjit Kaur and Gurminder Singh and to prove his report. No doubt, as per these documents eight other persons excluding the driver were travelling in the vehicle. No weight can be attached to Ex.R.8 to Ex.R.11, particularly when they have not been legally proved either by way of examining the Investigator or producing his affidavit. Question is as to whether more persons than eight including the driver were sitting in the vehicle stands clinched with documents Ex.R.7 and copy of the report of Sh. Dinesh Kumar Goyal, Surveyor & Loss Assessor deputed by opposite parties No.1 & 2. According to the FIR copy of which is Ex.R.7 there were seven persons travelling in the vehicle including the driver. Opposite parties No. 1 & 2 cannot wriggle out of the report of their own surveyor copy of which is Ex.R.13. Sh. Goyal has also made it clear that seven persons including the driver were travelling in the insured vehicle. Opposite parties No. 1 & 2 did not deem it fit to place on record the affidavit of Karamjit Kaur and Nirmala to show that they were also travelling in the insured vehicle at the time of accident. As per report of Sh. Satish Kumar Bansal, Karamjit Kaur and Nirmala had received injuries. If they had received treatment from some doctor for the injuries, record regarding the treatment could be produced and proved or affidavit of the concerned doctor could be brought on record. Evidence to this effect is lacking. Hence, the conclusion is that there is no solid evidence of opposite parties No. 1 & 2 to hold that more persons than seven including the driver were travelling in the insured vehicle at the time of accident. Even if it is taken for arguments sake that more persons than the seating capacity of the insured vehicle i.e. 1+7 were travelling in it, even then opposite parties No.1 & 2 cannot decline the personal accident claim as it is not the case of any of the parties that accident had taken place on account of the fact that more persons than the seating capacity of the insured vehicle were travelling in it. In other words, there is no nexus between the accident and more persons allegedly sitting in the insured vehicle. Accident cannot be said to have occurred due to the alleged fact that more persons than the seating capacity of the vehicle were travelling in it. It is also worth mentioning that insurance covers a sum of Rs.1,00,000/- for each of seven unnamed occupants under personal accident policy. It is not the case of opposite parties No. 1 & 2 that seven persons have already received the personal accident claim. Hence, they cannot sit over the personal accident claim regarding the death of Vinod Kumar indefinitely.<br /> 15. As a result of what has been discussed above, we are of the considered view that opposite parties No. 1 & 2 have delayed the personal accident claim regarding the death of Vinod Kumar without any reasonable and probable cause. Delay in settlement of the claim is without any justification. Hence, deficiency in service on the part of opposite parties No. 1 & 2 is established. So far as opposite party No. 3 is concerned, conclusion cannot be arrived at that he is deficient in any manner in rendering service to the complainant.<br /> 16. Now question arises as to which relief should be accorded to the complainant. As per our discussion made above, direction deserves to be given to opposite parties No. 1 & 2 to pay Rs. 1,00,000/- to the complainant alongwith interest @ 9% P.A from 31.8.2007 (The date calculated on expiry of three months from the date of application dated 30.5.2007 on which day they moved opposite parties No. 1 & 2 with request to pay personal accident claim of Vinod Kumar, a period required for processing the claim in an effective manner in normal course) till realization. Complainant is also craving for compensation of Rs.25,000/- for mental agony and pains. There is no case to allow it in view of the relief which is going to be accorded as above. Out of compensation and interest, one can be allowed. <br /> 17. In the result, complaint is allowed against opposite parties No. 1 & 2 with costs of Rs. 1,000/-. It stands dismissed against opposite party No.3. Opposite parties No. 1 & 2 are directed to do as under :-<br /> ( i ) Pay Rs. 1,00,000/- to the complainant alongwith interest @ 9% P.A from 31.8.2007 till payment.<br /> ( ii ) Compliance within 30 days from the date of receipt of copy of this order.<br /> 18. Copy of this order be sent to the parties<br /> <br /> free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 28.05.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet) Member <br /> <br /> 'bsg'<br /> <br />