IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 24th day of March, 2023.
Filed on : 07.11.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. C.K.Lekhamma, B.A.L,LLB (Member)
In
CC/No.288/2022
between
Complainant:- Opposite party:-
Smt.Nisha.P M/s United India Insurance Co.Ltd.
W/o Late Biju.R Rep.by its Divisional Manager
ChithiraNivas Divisional Office
S.N.Puram P.O. Mullackal, Alappuzha-688011
Kanjikuzhi, Mararikulam North (Adv.C.Muraleedharan)
Alappuzha-688582
Miss.Sreya Biju (Minor)
ChithiraNivas
-do- -do-
Sayan B Pillai (Minor)
ChithiraNivas
-do-
Sri.RajappanPillai.P
ChithiraNivas
-do-
Smt.Lalitha K.V
ChithiraNivas
-do-
(Adv.Jose Y James)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
Material averments briefly discussed are as follows:-
1st complainant is the wife , 2nd and 3rd complainant’s are the children, 4th complainant is the father and 5th complainant is the mother of late Biju.R who died in a motor vehicle accident occurred on 17/7/2020 while riding his motor cycle bearing Reg. No. KL. 32-A-1360 which was hit by an ambulance on Alappuzha-Ernakulam National Highway south of SN College, Cherthala. The accident occurred due to the rash and negligent driving of ambulance driver. At the time of accident deceased Biju was owner cum driver of motor cycle bearing Reg. No. KL.32-A-1360. Regarding the accident Mararikulam police registered a case as crime no. 896/2020 against the offending ambulance driver.
2. Postmortem examination conducted at Taluk Hospital Cherthala revealed that the cause of death was due to head injury. Biju had two vehicles in his name one is a car and other is the motor cycle bearing Reg. No. KL.32-A- 1360. Both vehicles were duly insured with the opposite party M/s United India Insurance Co. ltd. The policy of the car was valid from 21/8/2019 to 20/8/2020. Extra premium of Rs. 275/- was collected towards PA coverage of owner/driver. It was assured that in case of accidental death while driving the insurance company will pay an amount of Rs. 15 lakhs. Sri. Biju had insured his motor cycle with the opposite partyfor a period of one year from 26/6/2019 to 25/6/2020. In the said policy also an amount of Rs. 275/- was collected for PA cover and as per the policy,the PA coverage is for Rs. 15 lakhs.
3. Due to spread of Covid-19 pandemic Biju could not renew the policy of the motor cycle. As per the IRDA guidelines stand alone CPA will extend to all the vehicle owned by the owner/driver under the same policy. In other words the cover under the stand alone CPA policy would be valid when the owner/driver drives any of the vehicles he/she owns. After the death of Biju 1st complainant duly intimated the matter to the opposite party through her relatives and duly collected CPA claim form. All the relevant documents were also submitted along with the claim form. There was no response from the opposite party for several time after furnishing the CPA claim form. Sri. Biju had CPA coverage for the motor car as well as the motor cycle and so the nominee is entitled for Rs. 15 lakhs. Inspite of repeated enquires the claim was not released and hence the complaint is filed for realizing an amount of Rs. 15 lakhs along with interest and Rs. 50,000/- as compensation.
4. Opposite party filed a version mainly contenting as follows:-
Complaint is not maintainable either in law or on facts . The complaint is barred by limitation since it is filed after 2 years from the date of accident. There is absolutely no deficiency in service on the part of opposite party. The deceased never obtained any STANDALONE COMPULSORY PERSONAL ACCIDENT [OWNER/DRIVER ] POLICY and the opposite party never issued such a policy and no claim or documents were submitted for such a policy.
5. This opposite party had issued two policies in the name of deceased Biju one for motor cycle for the period from 26/6/2019 to 25/6/2020 and another one for the car for the period from 21/8/2019 to 20/8/2020 with PA cover for both the policies. The policy of the motor cycle was expired on 25/6/2020 prior to the alleged accident occurred on 17/7/2020. Since there was no policy on the date of accident opposite party is not liable to pay any amount. There is no stand alone policy issued to Biju and there was no such proposal. Suppressing these facts the complaint is filed with false allegations. The PA cover will be applicable only from the date of payment of premium. Complainants are not entitled for any reliefs and hence the complaint may be dismissed with cost.
6. On the above pleadings following points were raised for consideration:-
1. Whether there is any deficiency of service from the part of opposite party as alleged?
2. Whether the complainants are entitled to realise an amount of Rs. 15 lakhs along with interest from the opposite party being the PA cover of deceased Biju?
3. Whether the complainants are entitled to realise an amount of Rs 50,000/- as compensation from the opposite party as prayed for?
4. Reliefs and costs.
7. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to 12 from the side of the complainants. Opposite party has not adduced any oral evidence. Ext.B1 to B5 were marked.
8. Point No. 1 to 3:-
PW1 is the 1st complainant. She filed an affidavit in tune with the complaint and marked Ext.A1 toA10. Later Ext.A11 and A12 were also marked.
9. Complainants are the legal heirs of one Sri. Biju.R who met with an un timely death at the age of 45 years on 17/7/2020 in a road traffic accident occurred on Alappuzha –Ernakulam National Highway on the south of SN college Cherthala. Sri. Biju was driving his motor cycle bearing Reg. No. Kl.32-A-1360 which was hit by an ambulance. Sri. Biju was also having a motor car bearing Reg. No. KL.32 –N-990. Both vehicles were insured with the opposite party M/s United India Insurance Co. ltd. Ext.A4 is the policy issued to the motor car bearing registration No. KL.32-N-990 for a period of one year from 21/8/2019 to 20/8/2020. Ext.A5 is the copy of policy with respect to motor cycle bearing Reg. No. KL.32 –A-1360 for a period of one year from 26/6/2019 to 25/6/2020. According to PW1 who is the wife of deceased Biju they filed a claim petition before the opposite party along with necessary records claiming Rs. 15 lakhs being the PA cover. It is contended that PW1 was made a nominee in the policy. Though the policy of motor cycle expired on 25/6/2020 due to spread of Covid-19 pandemic Sri. Biju could not renew the same. According to PW1 on the basis of Standalone Compulsory Personal Accident [Owner/Driver ] Policy they are entitled for an amount of Rs. 15 lakhs. Since the amount was not paid inspite of repeated request the complaint was filed. 1st complainant who is the wife of late Biju got examined as Pw1 and marked Ext.A1 to A12. Opposite party filed a version admitting the policy. However according to them the policy of motor cycle bearing Reg. no. KL.32-A-1360 was for a period of one year from 26/6/2019 to 25/6/2020 and the policy of car bearing Reg. No. KL.32-N-990 was for a period of one year from 21/8/2019 to 20/8/2020. Since the policy of motor cycle expired on 25/6/2020 and so that the accident occurred on 17/7/2020 complainants are not entitled for the PA cover. It was contended that Standalone Policy is issued in a separate format and it was not issued to Biju. It was also contended that there was no nominee in the proposal. Since the accident occurred while Biju was riding the motor cycle of which the insurance policy expired on 25/6/2020 and so that the accident occurred on 17/7/2020 complainants are not entitled for any amount and hence the complaint is only to be dismissed. Opposite party has not adduced any oral evidence Ext.B1 to B5 were marked from their side.
10. The fact that late Sri. Biju was the owner cum rider of motor cycle bearing Reg. No. Kl.32-A-1360 at the time of accident ie, on 17/7/2020 is not in dispute. It is also an admitted case that he was also the owner of motor car bearing Reg. No. KL.32-N-990. Ext.A8 is the Driving Licence of Sri. Biju which is valid upto 18/9/2025 for non transport vehicles and valid upto 7/8/2013 for transport vehicles. Ext.B1(Ext.A4) is the copy of policy issued in favour of Sri. Biju with respect to motor car bearing Reg. No. KL-32-N-990. It is valid for a period of one year from 21/8/2019 to 20/8/2020.It is noticed that an amount of Rs. 275/- was collected as compulsory PA for owner/driver. Ext.B1(a) is the policy issued to Sri. Biju with respect to motor cycle bearing Reg. No. KL.32-A-1360 which is valid for a period of one year from 20/6/2019 to 25/6/2020(Ext.A5). In Ext.B1(a) also an amount of Rs. 275/- was collected as compulsory PA for owner/driver. The contention taken by the opposite party is that at the time of accident ie, on 17/7/2020 the motor cycle had no valid policy since it expired on 25/6/2020. The fact that Sri. Biju was the owner/driver of the motor cycle and that he had a PA coverage of Rs. 15 lakhs is not in dispute. It is also admitted that Sri. Biju was the owner of the motor car for which the policy was upto 20/8/2020 including PA cover of Rs. 15 lakhs. In both policies Rs. 275/- was collected as additional premium for PA coverage. The learned counsel appearing for the complainant pointed out that since Sri. Biju was the owner of both the vehicles and that he had paid premium for PA coverage,though the motor cycle had no insurance at the time of accident he is entitled for PA coverage on the basis of Standalone policy. Per contra the learned counsel appearing for the opposite party pointed out that Biju had not taken Standalone policy and so he is not entitled for the same. They have produced Ext.B2 which is the format of Standalone policy. The considerabledifference noted in a Standalone policy is that the licence details are also incorporated in the schedule. As discussed earlier Ext.A8 licence produced shows that on the date of accident late Biju had a valid licence to ride a motor cycle and to drive a car. Ext.B3 and B4 are the proposal forms produced by opposite party. In Ext.B4 the signature of Biju is seen whereas in Ext.B3 proposal with respect to motor car the signature of one Bindu is seen. The learned counsel has produced Ext.A11 pass port and Ext.A12 affidavit and contended that the signature seen Ext.B3 is not that of Biju.
11. The only question to be considered is whether the conditions of Standalone policy can be applied in this case. Master circular regarding motor insurance products No. IRDA/NL/CIR/MOT/144/06/2020 dtd. 8/6/2020 was relied by the learned counsel appearing for the complainant.
Sec. 3(ii) reads as follows;-
A minimum Capital Sum Insured (CSI) of Rs. 15,00,000/- shall be provided under CPA Cover for Owner-Driver under Liability Only, Under Section III of Package Policies to all classes of vehicles and Bundled Covers, wherever applicable.”
(iv) It is permitted to issue a stand-alone Compulsory Personal Accident Cover for Owner-Driver effective 1st January, 2019. The duration of the stand-alone CPA cover would be one year. The coverage under the stand –alone CPA would continue to be that stipulated under GR 36A of the erstwhile India Motor Tariff, namely, Death and Permanent Disability (Total and Partial).
(iv). Effective 1st January 2019, on expiry of a Bundled CPA cover, it may be replaced with a stand-alone CPA cover and the same may be taken from any registered insurer transacting general insurance business.
(vii). Coverage under the stand-alone CPA will extend to all the vehicles owned by the owner –driver under the same policy. In other words, the cover under the stand –alone CPA policy would be valid when the owner-driver drives any of the vehicles he/she owns.”
12. So from the master circular it is crystal clear that if a standalone policy is taken it covers all the vehicles owned by the policy holder. Relying upon the said provision the learned counsel appearing for the complainant pointed out that for both the vehicles late Biju had paid PA cover. Due to spread coivd-19 pandemic he could not renew the policy of the motor cycle which expired on 25/6/2020. However the policy of the motor car was valid upto 20/8/2020 and the accident occurred on 17/7/2020. Hence it was pointed out that applying the principles of stand-alone policy complainants are entitled for an amount of Rs. 15 lakhs. In support of his contention the learned counsel relied upon a decision of the Karnataka State Consumer Disputes Redressal Commission dtd. 22/11/2022 in Appeal No. 2245/2022 between Mrs. Pooja Mahaveer Nyamagond @ Nyamagond and Ors. Vs. Universal Sompo General Insurance Co. Ltd. Now the only question to be applied is whether in the particular circumstances of this case standalone policy can be applied. It is true that Biju had not taken standalone policy and he had paid separate premium for both the motor cycle and motor car for PA coverage.
In United India Insurance Co. Ltd Vs. Orient Treasures (P) (2016) 3 SCC 49 Hon’ble Supreme Court quoted Halsbury’s laws of England (5th Ed. Vol. 60. Para 105) on the Contra Proferentem rule as under:
“Contra proferentem rule.- Where there is ambiguity in the policy the court will apply the contra proferentem rule. Where a policy is produced by the insurers, it is their business to see that precision and clarity are attained and, if they fail to do so, the ambiguity will be resolved by adopting the construction favourable to the insured. Similarly, as regards language which emanates from the insured, such as the language used in answer to questions in the proposal or in a slip, a construction favourable to the insures will prevail if the insured has created any ambiguity. This rule, however, only becomes operative where the words are truly ambiguous; it is a Rule for resolving ambiguity and it cannot be invoked with a view to creating a doubt. Therefore, where the words used are fee from ambiguity in the sense that fairly and reasonably construed, they admit of only one meaning, the Rule has no application.”
It was held by the Hon’ble Supreme Court in General Assurance Society Ltd Vs. ChandmullJain (AIR 1966 SC 1644)
“Where there is an ambiguity in the contract of insurance or doubt, it has to be construed contra proferentem against the Insurance Company.”
13. This was reiterated by the Hon’ble Supreme Court in Haris Marine Products Vs. Export Credit Guarantee Corporation (ECGC) Ltd. in Civil Appeal No.4139/2020 dtd. 25/4/2022.
It was held by the Hon’ble Supreme Court in United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers (AIR 2004 SC 1700).
“ It is also settled position in law that if there is any ambiguity or a term is capable of two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken, namely, to cover the risk on the happening of certain event.”
14. This was reiterated by the Hon’ble Supreme Court in Sangrur Sales Corporation Vs. United India Insurance Company Ltd &Anr. ( 2020 (2) KHC 244 (SC))
“ It is well-settled that in the event that the two constructions are possible or in the event of an ambiguity, that construction which is beneficial to the insured should be accepted consistent with the purpose for which the policy was taken, namely to cover the risk on the happening of a certain event.”
15. Here in this case admittedly Sri. Biju had availed two policies one for his motor cycle and one for his motor car. An amount of Rs. 275/- was collected in both policies from him for PA cover of Rs. 15 lakhs. As per the IRDA circular dtd. 8/6/2020 coverage under the standalone CPA will extend to all the vehicles owned by the owner/driver under the same policy. It is true that as pointed out by the learned counsel appearing for the opposite party Biju had not availed the standalone policy. As discussed earlier in a standalone policy the details of Driving License is also included in the policy schedule. Ext.A8 shows that Biju had a valid driving licence for riding motor cycle and driving the motor car on the date of accident ie, on 17/7/2020. Ext. B3 proposal form was seriously challenged by the learned counsel appearing for the complainant contenting that the signature is not that of Biju. Unfortunately due to spread of Covid-19 pandemic Biju could not review the policy with respect to motor cycle which expired on 25/6/2020 and on 17/7/2020 ie, on the date of accident there is no valid policy issued by the opposite party with respect to the motor cycle which met with the accident. However the PA cover with respect to the motor car is valid upto 20/8/2020 which covers the date of accident also. Hence applying the principles of stand-alone policy and applying the principles laid down by the Hon’ble Supreme Court in the decisions mentioned above,the complainants who are the legal heirs of Biju are entitled for the PA cover of Rs. 15 lakhs.
16. Complainants are claiming an amount of Rs. 50000/- on account of compensation for mental agony. However as rightly pointed out by the learned counsel appearing for the opposite party the claim was not repudiated. In the version it is contented that the documents produced before this Commission were not submitted before the company and so there was no occasion for them to process the claim. In said circumstances complainants are not entitled for compensation. Though in the version it was contended that the complaint is hit by limitation, such a contention is untenable since the Hon’ble Supreme Court and Hon’ble National Commission had extended period of limitation on account of spread of covid-19 pandemic. These points are found accordingly.
17. Point No. 4:-
In the result complaint is allowed in part.
a) Complainants are allowed to realize an amount of Rs. 15 lakhs from the opposite party. The amount will be disbursed on production of legal heir ship certificate. PW1, the 1st complainant is allowed to withdraw the amount and disburse among the legal heirs.
b) Complainants are allowed to realize an amount of Rs. 3000/- as cost from the opposite party.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 24th day of March,2023.
Sd/-Sri.S.SanthoshKumar(President)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Smt.Nisha P (complainant)
Ext.A1 - Copy of FIR & FIS
Ext.A2 - Copy of Final report
Ext.A3 - Copy of post-mortem certificate
Ext.A4 - Copy of Policy
Ext.A5 - Copy of Policy of motor cycle
Ext.A6 - Copy of RC book
Ext.A7 - Copy of RC book
Ext.A8 - Copy of driving license
Ext.A9 - Copy of family membership certificate
Ext.A10 - Copy of claim form
Ext.A11 - Passport of deceased Biju.R
Ext.A12 - Affidavit
Evidence of the opposite parties:
Ext.B1 - Copy of policy with condition
Ext.B2 - Copy of format of standalone policy with conditions
Ext.B3 - Proposal form
Ext.B4 - Proposal form
Ext.B5 - Copy of IRDA circular
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Comp.by:
