Haryana

Karnal

197/2011

Gourav S/o Karan Singh - Complainant(s)

Versus

Chollamandlam Ms General Insurance Company Ltd - Opp.Party(s)

Rajiv Gupta

16 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                               Complaint No.197 of 2011

                                                             Date of instt.:07.04.2011

                                                              Date of decision:16.01.2017

 

Gaurav son of Shri Karan Singh son of Shri Devi Chand resident of village Bibipur Jattan, Tehsil Indri, District Karnal.

                                                                   ……..Complainant.

                                      Vs.

Cholamandalam MS General Insurance Company Ltd. SCO no.236 IInd floor, Sector-12, Karnal through its Divisional Manager.

 

                                                                        ………… Opposite Party.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh. Rajiv Gupta Advocate for the complainant.

                    Sh. Vineet Rathore Advocate for the Opposite party.

                  

                                     

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that his father Karan Singh (since deceased) was owner of Scorpio bearing registration no.HR-05-X-0098 which was got insured with opposite party for the period of 17.9.2009 to 16.09.2010. His father had expired on 14.12.2008. On 28.10.2009 his cousin Bhupinder Singh son of Shri Bal Kishan had taken the said vehicle to Kurukshetra and while he was returning from there and reached little ahead of Bhadson Sugar Mill suddenly a stray animal came on the road and while to avoiding the accident with, the same Bhupinder Singh lost control over the vehicle as a result of which the vehicle went into ditches and turned turtle after hitting against a tree and  was badly damaged. Daily Diary Report no.13 dated 29.10.2009 was entered in Police Station Indri, regarding the said accident. The opposite party was informed regarding the accident and claim was lodged for payment of Rs.5 lacs, but the opposite party postponed the matter on one pretext or the other. Ultimately, he got served legal notice dated 16.2.2010 upon the opposite party, but the same also did not yield any result. Such act and conduct on the part of the opposite party amounted to deficiency in service, due to which he suffered mental pain, agony and harassment apart from financial loss.

2.                Notice of the complaint was given to the opposite party, who put into appearance and filed written statement disputing the claim of the complainant. Objections have been raised that the complaint is not maintainable; that the complainant has not approached this forum with clean hands; that this forum has got no jurisdiction to entertain and try the present complaint; that the complaint is bad for mis-joinder and non-joinder of necessary parties; that the complainant has not approached this forum with clean hands; that the complainant has no cause of action and that the complaint is false and frivolous.

                   On merits, it has been submitted that the policy was issued in the name of Karan Singh, the father of the complainant. The complainant has not disclosed in the array of the parties that the complaint has been filed by him being legal heir of late Karan Singh. Even the intimation to opposite party was given under the signature of deceased Karan Singh on 30.10.2009. In this way, fraud was being tried to be played upon the opposite party. It has further been pleaded that the father of the complainant had died on 14.12.2008, whereas the policy was got issued in his name for the period of 17.09.2009 to 16.9.2010 and the alleged accident took place on 28.10.2009. There was no contract of insurance between the complainant and opposite party, therefore, no claim is payable to him under the policy and the same was repudiated, vide letter dated 19.4.2010. The other allegations made in the complaint have been denied.

3.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C2 to Ex.C13 have been tendered.

4.                On the other hand, in evidence of the opposite party, affidavit of Jitendra Dhabhai Assistant Manager  Ex.OP1/A and document  Ex.OP1 to Ex.OP8  have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                Admittedly, the father of the complainant namely Karan Singh had died on 14.12.2008. However, even after his death the vehicle no.HR-05-X-0098 was got insured with opposite party in his name for the period of 17.9.2009 to 16.09.2010. The said vehicle met with an accident on 28.10.2009 and in the said accident the vehicle was allegedly damaged. Daily Diary Report, the copy of which is Ex.C5, was entered regarding the said accident on 29.10.2009 in Police Station Indri.

7.                Learned counsel for the opposite party put a great thrust upon the contention that the complainant was neither registered owner of the vehicle in question on the date of accident nor he had got transferred the insurance policy in his name as per the terms and conditions of the insurance policy. Policy was got issued in the name of Karan Singh though he had already died on 14.12.2008. Thus, there was no contract between the complainant and the opposite party and his claim was rightly repudiated.

8.                To wriggle out the aforesaid contention learned counsel for the complainant submitted that while issuing the policy it was incumbent upon the opposite party to verify whether the owner of the vehicle i.e. Karan Singh was alive or not, but it did not verify such fact and issued the policy in his name. The complainant paid premium in good faith in the name of his father even after his death and the opposite party accepted the premium without any objection, therefore, the opposite party cannot absolve from the liability to pay compensation,  because it was the vehicle which was insured and not the owner. In support of his contention he relied upon Om Parkash and another Vs. Rajbiri and others 1997(1) PLR 8 and United India Insurance Co. Ltd. Versus Santro Devi and others 2009(1) TAC 355(SC).

9.                In Om Parkash’s case (supra) the owner of the truck had died. The premium was being paid on his behalf. The vehicle had met with accident during subsistence of the policy. The Insurance Company refused to pay compensation. Under those circumstances, it was held by Hon’ble Punjab and Haryana High Court  that a duty is cast upon the insurance compliant to verify that the owner of the vehicle is  alive or not and also to verify credentials of the person offering premium. However, the insurance company continued to issue the policy in the name of the registered owner, who had already died. Therefore, the mere fact that owner of the vehicle had died cannot absolve the insurance company from its liability to pay compensation, because the vehicle was insured and not the owner of the vehicle. In Santro Devi’s case (supra) the offending vehicle was insured in the name of owner, who had already died. Insurance Company continued to renew the policy in the name of original owner. Under those circumstances, it was held by the Hon’ble Supreme Court that in view of section 157 of Motor Vehicles Act, certificate of insurance and policy shall be deemed to have been transferred in favour of person to whom motor vehicle is transferred with effect from the date of transfer. If, despite knowledge of death of original owner, insurance company had been accepting premium every year, a contract by necessary implication had come into being-Doctrine of “acceptance sub silentio” shall be applicable. Contract itself is not void unless it is shown that in obtaining said contract a fraud was practiced.

10.              In the instant case, Karan Singh the father of the complainant, was registered owner of the vehicle and he died on 14.12.2008, but the policy was renewed by the opposite party in his name for the period of 17.09.2009 to 16.09.2010 without verifying the fact whether the owner was alive or dead on the date of issuing the policy. There is no allegation that fraud was practiced by the complainant or any other person upon the opposite party for obtaining the policy. Therefore, in view of the law laid down in the aforecited authorities, the opposite party cannot escape from its liability. Accordingly, the argument advanced by the counsel for the opposite party, cannot be accepted.

11.              The next contention raised by the learned counsel for the opposite party is that the complainant or any other legal heir of Karan Singh has never lodged any claim with the opposite party. Claim form the copy of which is Ex.OP4 was submitted to the opposite party on 30.10.2009 under the signatures of Karan Singh, who had already died. Therefore, on the basis of such claim form, which was not signed by the complainant and any other legal heir of Karan Singh, the insurance company is not liable to pay any compensation rather such act on the part of the complainant amounts to playing fraud upon the opposite party.

12.              Learned counsel for the complainant could not rebut this argument. He only alleged that the claim form is a forged document, such plea cannot be accepted in the absence of any oral or documentary evidence. Thus, it is emphatically clear that the complainant has not lodged any claim with the opposite party, therefore, he has no cause of action and as such the complaint is premature.

13.              In view of the aforediscussed facts and circumstances, we are of the opinion that the complaint is premature. Accordingly, the complainant is directed to lodge the claim with the opposite party within 30 days from the receipt of copy of this order and we further direct that the opposite party would decide the claim of the complainant within 30 days of submission of the claim by the complainant. The complaint stands disposed off accordingly. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced

Dated: 16.01.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member