Haryana

Karnal

CC/197/2019

Manju Bhandari - Complainant(s)

Versus

HDFC ERGO General Insurance Company Limited - Opp.Party(s)

Sanjiv Kamboj

08 Mar 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 197 of 2019

                                                        Date of instt.10.04.2019

                                                        Date of Decision:08.03.2022

 

Manju Bhandari aged about 49 years wife of late Shri Anil Bhandari resident of House no.73-A, Poultry Area, Nilokheri District Karnal.

 

                                               …….Complainant.

                                              Versus

 

HDFC ERGO General Insurance Company Ltd. 2^nd floor, SCO no.237, Sector 12, Karnal through its Branch Manager.

 

                                                                      …..Opposite Party.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

   

          

 Argued by: Shri Sanjeev Kamboj, counsel for complainant.

Shri Sanjeev Vohra, counsel for opposite party.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that late Anil Bhandari husband of complainant was the registered owner of vehicle (car) bearing registration no.HR-05AQ-6571, which was insured with the OP, vide policy no.2311202321649900001, valid from 24.07.2018 to 23.07.2019. On 08.09.2018 after finishing Press Party Shri Anil Bhandari was coming from Prem Plaza Hotel Railway Road, Karnal to Nilokheri while driving the aforesaid vehicle at about 11.30 p.m. when reached near Vivan Hotel i.e. in the area of village Dadurpur-Shamgarh, then at that time an unknown vehicle hit the car of deceased from back side and due to which his car hit into the divider of the road and met with an accident. In this accident, Anil Bhandari sustained serious and multiple injuries on his vital parts of body and succumbed to the injuries. A DDR was lodged in Police Station Taraori. After the said accident, complainant lodged her claim regarding personal accidental benefits of Rs.two lakhs with the OP. Official of the OP got signed certain documents from the complainant and got completed certain formalities and assured that insurance benefit will be given to the complainant within a month. Thereafter, complainant visited the office of OP, so many times and requested for making payment of compensation of personal accidental benefits but OP did not pay any heed to the request of the complainant and postponed the matter on one pretext or the other. In this way there was deficiency in service on the part of the OP. Hence complainant filed the present complaint.

2.             On notice, OP appeared and filed written version raising preliminary objections with regard to maintainability; jurisdiction and concealment of true and material facts. On merits, it is pleaded that the insurance policy was issued in favour of Mr. Himanshu Bhandari for his vehicle make and Model-Maruti ALTO for the period from 24.07.2018 to 23.07.2019 subject to its terms, conditions and exclusions. The policy was issued in due compliance with the provision of Indian Motor Tariff (IMT) issued by the IRDA. The OP cannot be held liable for the claim made in the present complaint, as it falls outside the scope of the insurance policy. It has been clearly laid down in Section 3 that the personal accident cover is subject to:-

i.      The owner-driver being the registered owner of the vehicle insured.

ii.     The owner-driver is the insured named in the policy and

iii.     Owner-Driver is driving the insured vehicle at the time of accident.

However, in the present case as alleged by the complainant the deceased Anil Bhandari is neither the owner of the vehicle nor is insured under the policy in question, as both the documents belongs to Mr. Himanshu Bhandari. As such the Personal Accident Claim for ‘Owner-Driver’ is not admissible. It is further pleaded that Own Damage (OD) claim was lodged by the insured, i.e. Mr. Himanshu Bhandari, wherein, in the claim form the name of the insured is mentioned as Himanshu Bhandari. Thereafter, the OP deputed an IRDA accredited independent surveyor to assess the loss in the said vehicle. The surveyor submitted his report and it was found that the vehicle was Total Loss. It is further pleaded that the insured and the OP agreed to settle the matter on Cash Loss basis, an agreement was entered by the insured and OP, wherein, it was agreed between the parties that an amount of Rs.1,58,426/- will be paid as full and final settlement against the ‘OD’ claim and further the OP will facilitate the complainant in getting the best salvage value. Thus, an amount of Rs.1,58,426/- was paid to the insured. Therefore, from the said document it is well established that the claim was lodged for the OD claim and the same was paid to the insured. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Complainant tendered into evidence her affidavit Ex.C1, copy of death certificate Ex.C2, copy of insurance policy Ex.C3, copy of driving licence Ex.C5, copy of application Ex.C6 and closed the evidence on 21.11.2019 by suffering separate statement.

5.             In additional evidence, complainant has tendered affidavit of Sahil Bhandari Ex.C7, affidavit of Himanshu Bhandari Ex.C8 and affidavit of Khushboo Bhandari Ex.C9 and closed the additional evidence on 23.02.2022 by suffering separate statement.

6.             On the other hand, OP tendered into evidence affidavit of Shweta Pokhriyal Ex.RW1/A, insurance policy Ex.R1 and closed the evidence on 09.09.2021 by suffering separate statement.

7.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that on 08.09.2018 Anil Bhandari (since deceased) husband of complainant was the driver of vehicle (car) bearing registration no.HR-05AQ-6571, which was insured with the OP, and the said car met with an accident and in the said accident, Anil Bhandari sustained multiple injuries and succumbed to the injuries. After the said accident, complainant lodged her claim regarding personal accidental benefits of Rs.two lakhs with the OP but OP did not pay the same and lingered the mater on one pretext or the other. He further argued that as per insurance policy, the OP has received Rs.100/- for Personal Accident Premium to the driver, hence, complainant is entitled for benefit of personal accident claim. Hence, prayed for allowing the complaint with compensation and cost of litigation expenses. Learned counsel for complainant relied upon the judgment of Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Umesh Kumari and others Vol.Civl-(2010-1) 675; judgment of Hon’ble Supreme Court of India in case titled as Ramkhiladi and another Versus the United India Insurance Company and another in Civil Appeal no.9393 of 2019 decided on 07.01.2020 and United India Insurance Co. Ltd. Versus Gyan Singh Yadav and another 2019 (2) CLT 184.

9.             Per contra, learned counsel for OP, while reiterating the contents of the written version has vehemently argued that in the present case deceased Anil Bhandari was neither the owner of the vehicle nor was insured under the policy in question, as both the documents belongs to Mr. Himanshu Bhandari. As such the Personal Accident Claim for ‘Owner-Driver’ is not admissible. Hence, prayed for dismissal of the complaint. Learned counsel for OP relied upon the judgment of Hon’ble Punjab and Haryana High Court in case titled as Malkiat Kaur and others Versus Salinder Verma and others (2019-2) 94 PLR 673.

10.           It is admitted case Anil Bhandari (since deceased) was not the owner of the vehicle in question and his son Himanshu Bhandari was the owner of the vehicle at the time of accident. It is also admitted case that, at the time of accident, Anil Bhandari was driving the vehicle.

11.           The claim of the complainant has been denied by the OP on the ground that, OP cannot be held liable for the claim made in the present complaint, as it falls outside the scope of the insurance policy.

12.           In Ramkhiladi’ case (supra) Hon’ble Supreme Court held that as per the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs.one lakh. Therefore, the deceased as observed in the present case, who would be in the shoes of the owner shall be entitled to a sum of Rs.one lakh, even as per the contract insurance. Similar view has taken by the Hon’ ble High Court in Umesh Kumar’s case supra, in which Hon’ble Punjab and Haryana High Court held that Comprehensive Policy of Insurance-Premium towards compulsory PA to owner-cum-Driver was paid-Would obviously means to cover owner or driver of the vehicle-Deceased cannot be treated as a third party being son of the owner and he has to be terms as owner itself as he was stepped into the shoes of the owner by borrowing the vehicle with permission of the owner-insurance company-held, liable.

13. Further,Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others (2008) 151 PLR 313, has held as under:-

                It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy.

14.           In the present case also Anil Bhandari was the father of Himanshu Bhandari, who was the registered owner of the vehicle. Hence, Anil Bhandari deceased cannot be treated as a third party being father of the owner of the vehicle and he has to be termed as owner itself as he has stepped into the shoes of the owner by borrowing the vehicle with permission of the owner.

 15.          Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that act of the OP while repudiating the claim of the complainant amounts to deficiency in service and unfair trade practice.  

16.           The law laid down by the learned counsel for the OP is not applicable to the facts of the present case.

17.         As per insurance policy Ex.C3 (Ex.R1) the complainant is entitled for the benefit of personal accident which covers Rs.two lakhs.

18.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to pay Rs.2,00,000/- as insured amount to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OP to pay Rs.20,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses.  This order shall be complied with within 45 days from the receipt of 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.     

Dated:08.03.2022     

 

                                                               

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

(Vineet Kaushik)       

                     Member