Punjab

StateCommission

A/11/1626

ICICI Lombard Motor Insurance - Complainant(s)

Versus

Harshdeep Kaur - Opp.Party(s)

R.S.Dhull & Pooja Dhull

01 Apr 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                                               PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1626 OF 2011

 

                                                          Date of Institution: 11.11.2011

                                                          Date of Decision:   01.04.2015

 

 

ICICI Lombard Motor Insurance, through its Branch Manager, Branch Office, Sharma Complex, G.T Road, Bathinda now at SCO No.507, Sector 70, Mohali through its Manager Inderjit Singh.                                                                                                                                                                                                          …..Appellant/Opposite party

         

                                      Versus

 

 

1.       Harshdeep Kaur aged 27 years wd/o Gagandeep Singh s/o Satpal       Singh.

2.       Jasmeen Kaur aged 6 years

3.       Harmandeep Kaur aged 3 years

          Both are minor daughters of Gagandeep Singh S/o Satpal Singh          through their mother Harshdeep Kaur, Complainant No.1.

4.       Manjit Kaur, aged 50 years, w/o Satpal Singh S/o Bisham Singh.

          All residents of Puri Colony, Pakhi Road, Tehsil and District       Faridkot.

 

 

                                                          …..Respondents/Complainants

 

         

First Appeal against order dated 24.08.2011 passed by the District Consumer Disputes Redressal Forum, Faridkot

 

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member

 

Present:-

 

          For the appellant              :         Sh. R.S Dhall, Advocate.

          For the respondent :         Sh.N.K. Manchanda, Advocate.

 

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J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the opposite party in the complaint) has directed this appeal against  the respondents of this appeal (the complainants  in the complaint), challenging order dated 24.08.2011 of District Forum Faridkot, directing the opposite party to pay Rs.73,500/- on account of death of Gagandeep Singh, besides Rs.6500/- for mental harassment as compensation, totaling Rs.80,000/- to the complainants. The instant appeal has been preferred against the same by the OP in the complaint, who is  the present appellant.

2.      The complainants have filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the allegations that Gagandeep Singh was the driver of Mahindra Pick Up, bearing registration No.PB-11-AC 9566, being resident of Puri Colony, Pakhi Road, Tehsil and District Faridkot. The said Gagandeep Singh, was working as driver on Mahindra Pick UP bearing Registration No.PB 11 AC 9566 owned by Raman Kumar S/o Kewal Krishan R/o Machaki Kalan, Tehsil and District Faridkot, now at Ajit Nagar, Gali No.1, Faridkot on salary of Rs.4500/- per month. The above-referred vehicle Mahindra Pick UP was insured with OP, vide policy No.3003/54581258/00/000, which was valid on 27.07.2009. The accident took place on 20.7.2009 within the currency of the said insurance policy period, wherein above Gagandeep Singh, who was insured being driver of the said offended vehicle, vide personal accident cover, met with an accident caused by truck bearing registration No.RJ-13GA-2737 on 20.07.2009 for which FIR No.108 dated 20.07.2009 under Section 304-A/427 was registered at police station Faridkot. Gagandeep Singh above driver died due to injuries sustained by him in this accident. His postmortem examination was conducted and death certificate was obtained. The complainant No.1 Harshdeep Kaur is widow of deceased, complainant no.2 Jasmeen Kaur and complainant no.3 Harmandeep Kaur are daughters of the above Gagandeep Singh and complainant no.4 is mother of the above Gagandeep the driver of the above-referred vehicle. The complainants, being legal heirs of Gagandeep Singh, being dependant upon him, filed the complaint against the OP. The OP has not paid even a single penny to the complainant and this is a clear- cut unfair trade practice and deficiency in service on the part of the OP. The complainants, being legal heirs of Gagandeep Singh driver, who was insured under the said policy for the personal accident cover, instituted this complaint against the OP. The complainants have filed the consumer complaint directing the OP to pay the amount of Rs.2 lac on account of accidental death of Gagandeep Singh and Rs.50,000/- as compensation for mental harassment and Rs.20,000/- as costs of litigation.

3.      Upon notice, OP appeared and field written reply raising legal objections that the complaint has been filed by the complainant just to injure the goodwill and reputation of the OP in the market. The complaint, deserves to be rejected being frivolous. That the intricate question of facts and law are involved in the present complaint, which cannot be adjudicated in the summary proceedings by the Consumer Forum. The complainants have concealed the material facts from the Consumer Forum and they stand disentitled to claim any relief sought by them. The remedy of the complainant is only under Workman Compensation Act or under the Motor Vehicles Act regarding the death of Gagandeep Singh, which are the statutory remedy in this regard only. No premium was paid by the complainant or their predecessor- in interest, hence, there is no relationship of the consumer and service provider between the parties. The personal insurance coverage for the owner is  Rs.2 lac, who himself drove  the vehicle and premium of Rs.100/- was paid for coverage of owner-cum-driver only in this case. The complainants have no locus standi or cause of action to file the complaint, hence complaint is not maintainable. On merits, the complaint was resisted on the averments that the vehicle was insured with OP, vide policy no. 3003/54581258/00/000.  This fact was denied  for want of knowledge by the OP, if deceased was working, as paid driver on the said vehicle. It was further averred that no amount is payable to the complainants on account of personal accident, as there was no such coverage in the said policy. The terms and conditions of the insurance are contract, which are binding on the parties and, hence OP prayed for dismissal of the complaint.

4.      The complainant tendered in evidence affidavit of complainant Ex.C-1, copy of postmortem report Ex.C-2, pictorial diagram Ex.C-3, copy of FIR No.108 Ex.C-4, copy of verification certificate Ex.C-5,  copy of legal notice Ex.C-6, postal receipt Ex.C-7, copy of RC Ex.C-8, copy of insurance cover note Ex.C-9, copy of death certificate Ex.C-10, copy of licence of Gagandeep Singh Ex.C-11. As against it, OP tendered in evidence affidavit Gurpreet Singh Manager Legal , ICICI Lombard, GIC Limited, copy of certificate cum policy schedule Ex.R-2, copy of terms and conditions of the policy Ex.R-3, IMT 17 Ex.R-4, IMT 28 Ex.R-5. On conclusion of evidence and arguments, the District Forum Faridkot accepted the complaint of the complainant directing the OP to pay the amount of Rs.73,500/- to the complainant for death of Gagandeep Singh and Rs.6500/- for mental harassment. Dissatisfied with the order of the District Forum Faridkot dated 24.08.2011, the OP now appellant has preferred this appeal against the same.

5.      We have heard Ld. Counsel for the parties and have also examined the record of the case. The vehments submission raised by the appellant in the grounds of appeal before us is that Gagandeep Singh deceased, being driver of the said vehicle,  was not insured and separate premium was not paid for him and hence, there was no coverage for the paid driver under IMT 17, hence the claim is not maintainable. It was further contended that complainants being the legal heirs of the said Gagandeep Singh have no locus standi or cause of action to file the consumer complaint. It was further submitted by the OP that separate premium under IMT 28, is certified to be paid for the coverage of the driver of the vehicle only. It was further submitted that remedy of the complainant does not lie before the Consumer Forum and the remedy is under the Workman Compensation Act only. The above-referred evidence has been sought to be repelled by the counsel for the complainants now respondent in this appeal by arguing to the contrary before us. We have examined the order of the District Forum Faridkot in this case, as well as the file of the case. The District Forum recorded the finding in the order under challenge in this case to the effect that Gagandeep Singh deceased was working as driver and was insured under the insurance policy Ex.R-2 and he died in the Motor Vehicle accident and he died during the coverage of the policy, vide his death certificate Ex.C-10. The District Forum observed that the OP received premium of Rs.100/-, as personal accident insurance of owner-cum-driver. The contention was raised by the OP before the District Forum that driver was not covered for separate premium and it was not paid. We have examined the pleadings of the parties coupled with affidavit of Harshdeep Kaur complainant Ex.C-1 on the record. She has deposed in her affidavit that Gagandeep Singh was driver of the said vehicle was earning Rs.4500/- per month. He was, thus, a  paid driver,  as per the pleadings as well as affidavit of Harshdeep Kaur complainant on the record. His postmortem certificate is Ex.C-2 proving his death due to accidental injuries, which were sufficient to cause his death in ordinary course of nature. FIR Ex.C-4 is on the record. Legal notice was served upon the OP, vide Ex.C-6 and R.C Certificate is Ex.C-8, insurance policy Ex.C-9 on the record. Death Certificate of Gagandeep Singh is Ex.C-10 on the record. We find from perusal of the certificate-cum-policy-schedule Ex.C-9 that the premium of paid owner (ENDT.IMT 28) is recorded as Rs.25/- as premium whereas PA cum for owner driver is against the premium of Rs.100/-. We find that even paid driver under IMT 28 has been covered and premium of Rs.25/- has been received, vide certificate cum insurance policy Ex.C-9 on the record.

6.      The District Forum has, thus, correctly recorded this observation in its order that under endorsement IMT 28, OP agreed to indemnify the insured against legal liability. We find that terms and conditions of the insurance contract Ex.C-9 are binding on the parties. It is proved the fact that Gagandeep Singh was working as paid driver with insured, vide insurance policy Ex.R-2. The OP received Rs.100/- for personal accident insurance of owner-cum-driver for paid driver. OP also received premium of Rs.25/- under IMT 28 and the insurer agreed to indemnify against legal liability under Workman Compensation Act or at common law, so the OP admitted their liability under IMT 28 but no such compensation has been paid to the legal heirs of Gagandeep Singh in this case despite receiving the premium of Rs.25/- under IMT 28.

7.      The argument raised before us in this appeal is that complainants are not Consumers with the OP, as they have not paid the premium. The definition of the consumer has been set out in Section 2(1)(d) of the Act consumer Protection Act 1986, which also includes any beneficiary of such services and other person, who buys any goods for a consideration, which has been paid or promised, when such services availed of are with the approval of first mentioned person.

8.      In view of the definition of the Consumer under Section 2(1)(d) of the Act, even availing of the services with approval of hirer of the service, who paid the consideration and would be a consumer by means of amendment by Act 62 of 2002 in the Consumer Protection Act w.e.f 15.03.2003. Even legal representatives of the consumer are defined under Section 2(b) of the Consumer Protection Act 1986 to fall into the category of consumer.

9.      Consequently, the contention of the OP now appellant is without substance that the complainants are not consumers. The District Forum rightly concluded in its order under challenge in the appeal that the complainants are entitled to recover the compensation amount for insurance from the OP. The order of the District Forum is found without any fault by us. We find no ground to interfere with the order of the District Forum in this appeal and same is affirmed in this appeal and the appeal is ordered to be dismissed.

10.    The appellant has deposited an amount of Rs.58,029/- vide receipt no.840560 dated 5.1.2012 and Rs.25,000/- vide receipt no.840125 dated 11.11.2011 with this commission at the time of filing the appeal. These amounts with interest, if any, accrued thereon, be refunded by the registry to the respondents/complainants through District Forum Faridkot in equal shares by way of cross cheque/demand draft after 45 days from receipt of copy of this order. The District Forum Faridkot shall further  ensure the deposit of the shares of minor complainant no.2 and 3 in their fixed deposit receipts in some Nationalized Bank till they attain the age of maturity.

11.     Arguments in this appeal were heard on 25.03.2015 and the order was reserved. Now the order be communicated to the parties.

12.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                           (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

April 01    2015.                                                             

(ravi)