Haryana

Karnal

386/2012

Sukhdevi W/o Parwara - Complainant(s)

Versus

HDFC EGRO Gernal Insurance Company Ltd - Opp.Party(s)

Sh.Sudhakar Mittal

18 Jan 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                          Complaint No.386 of 2012

                                                          Date of instt.: 13.8.2012

                                                          Date of decision: 18.01.2016

 

Sukhdevi w/o late Sh.Parwara resident of village Chuharmajra tehsil and district Kaithal.

.                                                                   ……..Complainant    

                                      Vs.

HDFC Ergo GIC Ltd. SCO No.237, 2^nd Floor, Sector – 12, U.E.Karnal.

                                                                           ……… Opposite Party

                     Complaint u/s 12  of the Consumer

                     Protection Act.

 

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

                   Sh.Anil Sharma…….Member.

 

Present:-        Sh.Sudhakar Mittal Advocate for the complainant.

                   Sh.Sanjeev Vohra Advocate for Opposite Party

 

ORDER:                 

 

                        The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that Avtar Singh  son of Gurcharan Singh resident of village Arjaheri  was the registered owner of the  car bearing registration No. HR-05X-7303. The said car was insured with the Opposite Party under comprehensive  insurance policy No.2311200070689900000. The husband of the complainant had purchased the policy for the period of 13.3.2011 to 12.3.2012, after making payment of insurance premium of Rs.1105/-.  Under the said  policy driver and owner of the vehicle were having personal accident coverage risk for an amount of Rs.2 lac, as extra  premium of Rs.200/- was paid by the insured for coverage of risk of owner and further an amount of Rs.25/- for coverage of risk of driver.  On 14.3.2011, Parwara Ram ( since deceased) the husband of the complainant was driving the said car  at a moderate speed but when the car reached near  Bansal Rice Mill, a cow emerged on the road and while saving the cow he lost control over the  car and met with an accident, as a result of which he sustained injuries. He died on 23.3.2011 while getting treatment from Fortis Hospital, Mohali. Parwara Ram was having valid and effective driving licence bearing No.12455/2007-2008 dated 11.2.2009, old number 842/2002-2003 dated 28.3.2003 issued by the Licensing Authority, Karnal. It has further been alleged that complainant submitted all the documents to  the Opposite Party for getting  an amount of Rs.2.00 lac under the policy, but the Opposite Party kept on lingering the matter on one pretext or the other. Ultimately,  she got served   legal notice dated 10.4.2012 upon the Opposite Party,  but the same also did not yield any result.  Thus, act of the Opposite Party amounted to deficiency in services.

 

2.                 Notice of the complaint was given to the Opposite Party,  who appeared and filed written statement controverting the claim of the complainant. Objections have been raised that complaint is not maintainable in the present form; that  complainant is estopped from filing the present complaint by her own acts and conduct; that the complainant has no locus standi and cause of action to file the present complaint; that the complainant has not approached this Forum with clean hands and that this Forum has got no territorial jurisdiction to entertain and decide the present complaint.

 

                   On merits, it has been submitted that owner-driver was covered and risk of paid driver was covered as per policy which means that if owner was driving the car at the time of accident and died in the said accident, then his legal heirs were entitled to compensation and  if paid driver of the insured died, then also his legal heirs were entitled for compensation. Parwara Ram was  neither insured nor paid driver of the insured. He was working as  Block Agriculture Officer at the time of accident, therefore, as per terms and conditions of the insurance policy, the complainant was not entitled to get any compensation. It has further been averred that  Intimation regarding the accident in question and damages to the car was received by the Opposite Party on 22.5.2011 and  an independent  investigator M/s Royal Associates  was deputed.  Own damage claim of the owner Sh.Avtar Singh was repudiated and duly conveyed to him. The other allegations made in the complaint have been specifically denied.

 

3.                 In evidence of the complainant, her affidavit Ex.CW1/A and documents Ex.C1 to Ex.C12 have been placed on record.

 

4.                 On the other hand, in evidence of the Opposite Party, affidavit of Sh.Pankaj Kumar, Manager claims Ex.O1 and documents Ex.O2 to Ex.O6 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.                 There is no dispute between the parties that the car bearing registration No.HR-05X/7303 owned by Avtar Singh was insured with the Opposite Party  for the period of 13.3.2011 to 12.3.2012. It is also admitted fact  that the said car met with an accident on 14.3.2011 while  being driven by Parwara Ram, the husband of the complainant and on account of the injuries sustained in the said accident, he died on 23.3..2011.It is also admitted that Parwara Ram was not paid driver of the insured Avtar  Singh and he was working as Block Agriculture Officer at the time of accident. The complainant has claimed  compensation on the ground that extra premium of Rs.200/- was paid for covering risk of owner and further an amount of Rs.25/- was paid for covering risk of driver and  as Parwara Ram was driving the vehicle at the time of accident, his widow is entitled to get compensation.        As per the case of the Opposite Party ,Parwara  Ram was neither owner of the vehicle nor paid driver of the  insured at the time of accident, therefore, the complainant is not entitled to get any compensation.

 

7.                 The learned counsel for the Opposite Party has put a great thrust upon the contention that as per the version put forth in the First Information Report, which was registered on the basis of statement of Mandeep son of Parwara Ram, the said car was owned by Parwara Ram, but neither Parwara Ram was registered owner nor insured of the said car and as such he  had no insurable interest. Moreover, the Insurance company covered the personal accident claim risk of owner driving the vehicle at the time of accident or paid driver of the insured.   As Parwara Ram was neither owner nor paid driver  of insured Avtar Singh, his case was not covered under personal accident claim of owner-driver or paid driver. Therefore, the complainant is not entitled to get any compensation for death of her husband. In support of his contention, he has placed reliance upon N.Gopal Vs. Branch Manager, The National Insurance Co.Ltd. 2015(1) CLT page 67, wherein previous owner of the vehicle had taken the policy and subsequently the vehicle was purchased by the petitioner. The said vehicle met with an accident on 25.1.2008 and was badly damaged. Petitioner claimed compensation for damages to the vehicle, but his claim was repudiated by the insurance company. Under those circumstances, it was held by the Hon’ble National Commission that at the time of accident, the petitioner was neither registered owner of the vehicle nor policy was transferred in his name. Therefore, he was having no insurable interest in the  vehicle and as such there was no privity of contract between him and the insurance company. The claim  of the petitioner was accordingly dismissed.    The learned counsel for the Opposite Party  has also referred to   Cholamandalam MS Genenral Insurance Co.;Ltd. Vs.Smt.Rajesh and others Vol./CLXXVI-(2014-4) PLR 377, wherein it was held by the Hon’ble Punjab and Haryana High Court that  borrower of the car would not be entitled to compensation  u/s 163-A of the Motor Vehicles Act under  comprehensive personal accident claim.

 

8.                 To wriggle out of the aforesaid contention, the learned counsel for the complainant vehemently argued that Avtar Singh was registered owner as well as insured of the car and the same was never transferred in the name of Parwara Ram. In fact, Parawara Ram borrowed the said car from registered owner Avtar Singh and being a borrower , he stepped into the shoes of owner/registered owner, therefore, he was also covered under the personal accident claim risk of owner/ driver as per terms and conditions of the insurance company and consequently, the complainant being his widow is entitled to get compensation.  In support of his contention, he relied upon   Bajaj Allianz General Insurance Company Limited Vs. Jasmer Singh and another Vol.CLXXVII-(2015-1)782 wherein Jasmer Singh borrowed the hero majestic moped of Bhajan Singh, the registered owner, for going to his village and the moped was hit by a truck as a result of which Jasmer Singh had fallen on the road and suffered multiple grievous injuries. He claimed  compensation for the injuries sustained by him in the accident. It was observed by the Hon’ble Punjab and Haryana High court as under:

 

                   “It cannot be gainsaid that terms of the policy of Insurance are stipulated on the instructions/guidance of the Tariff Advisory Committee which is a Statutory Authority under the Act.  Learned counsel for the appellant-Insurance Company was unable to show that the Tariff Advisory Committee laid down any condition to limit the liability only for the owner himself, to be covered under the personal accident cover. When main object of the policy is to cover for the owner-driver, and the meaning of expression driver in the policy has been explained, limiting the liability to the registered owner in personal  accident claim in rest of the term of the policy cannot be given any legal sanctity. The interpretation of the  aforesaid term to cover the personal  accident claims cannot be made on the basis of each and every term because the basic intent is to cover not only the third party liability under the Act but also personal accident and even the own damage claim for which the premium paid.

 

                   “That deposit of premium for personal accident claim in the package/comprehensive policy in my view cannot be limited only to the owner as the words used in the policy to cover personal accident is described as ‘ owner driver’. Any other interpretation to  these plan words would be restricting the authorized driving  to the owner himself and such a consequence is manifestly illegal.  Such an interpretation would in fact amount to contract to pay premium for the life insurance which cannot be so as  the premium has  been paid for the policy issued under the Act.”

 

                   “I am of the view that if the borrower of the vehicle steps into the shoes of owner, the term of the policy which is comprehensive/package policy, would include the personal accident claim  of the person driving the vehicle provided he holds a valid licence.”

 

9.                 The learned counsel for the complainant also sought sustenance from Bajaj Allianz General Insurance Co.Limited Vs.Poonam and others Vol. CLXXVIII(2015-2)PLR 235.        In Poonam’s case (Supra),  wherein the deceased had borrowed the motor cycle and met with an accident as a result of which he sustained injuries and succumbed to those injuries. His legal heirs claimed compensation under the clause of personal accident claim of the Insurance policy.  Under those circumstances, it was held by the Hon’ble Punjab and Haryana High Court that borrower stepped into the shoes of the registered owner. He died out of use of the said motor vehicle, therefore, his legal representatives were entitled to get compensation under the personal  accident cover of owner-driver as the policy was package policy.

 

10                The facts of the present case are squarely covered under the proposition of law laid down in  Jasmer Singh’s (Supra) and Poonam’s case(Supra). The authorities cited on behalf of the Opposite Party  do not  render any help to the Opposite Party under the facts and circumstances of the present case. It is admitted fact that Parwara Ram was driving the car owned by Avtar Singh at the time of accident and the said car met with an accident on 14.3.2011 as a result of which Parwara Ram sustained injuries and   succumbed to those injuries on 23.3.2011.  As Parwara Ram was neither registered owner nor  paid driver of the registered owner/insured Avtar Singh, therefore, his position was of borrower. Thus, being borrower, he stepped into the shoes of the registered owner. As he stepped into the shoes of registered owner, the term of comprehensive policy  would be applicable to his case also, as the same  would include personal accident claim of the owner-driver of the  vehicle provided he  holds a valid and  effective driving licence at the time of accident. The copy of the driving licence of Parwara Ram has been produced as Ex.P9. The genuineness and validity of the said driving licence has not been disputed by the Opposite Party. Consequently, Parwara Ram was covered under the term of personal accident claim risk and as such his legal heirs are entitled to get compensation.

 

13                 As a sequel to the foregoing discussion, we accept the present complaint and direct the direct the Opposite Party to make the payment of Rs.two lac to the complainant alongwith interest @ 9% per annum from the date of filing of the present complaint i.e. 13.08.2012 till its actual realization. The complainant shall also be entitled for a sum of Rs.11000/- for the mental harassment caused to him and for the litigation expenses..The Opposite Party shall make the compliance of this order within a period of thirty days form the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.    

 

Announced
dated:18.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.

        

 

 

 

 

Present:-        Sh.Sudhakar Mittal Advocate for the complainant.

                   Sh.Sanjeev Vohra Advocate for Opposite Party

 

                   Arguments heard. Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:18.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.