PER:

Nidhi Verma Member,

1        The complainant has filed the present complaint under Section 12 and 13  of the Consumer Protection Act (herein after called   as 'the Act') against the opposite party on the allegations that the husband of complainant No. 1 namely Gursewak Singh (now deceased) purchased a vehicle i.e. motorcycle Hero HF Deluxe bearing its Registration No. PB-46-AC-6014, Engine No. HA11EMJ9L09213 and Chassis No. MBLHA7159J9326170, Model 2019 on 21.1.2019. The above said motorcycle/ vehicle was fully insured by the insurance company of opposite party and husband of the complainant No. 1 namely Gursewak Singh paid the same to the opposite party at the time of purchasing the said vehicle and the above said policy/ insurance was valid till 20.1.2020 and his CPA was Rs. 15 Lacs.  After about three months from purchasing the above said vehicle the husband of the complainant No. 1 namely Gursewak Singh has died on 23.3.2019 due to road side accident and the detail of occurrence/ accident is as follows:- On 23.3.2019 at about 8.00 P.M. Gursewak Singh (now deceased) son of Darshan Singh resident of village Rajoke, Tehsil Patti, District Tarn Taran was coming to home on his motorcycle bearing its registration No. PB46-AC-6014 came from Amarkot to village Rajoke, when he reached in the area of village Rajoke due to dig in the road his motorcycle became unbalanced and fall on the road and his head struck with the road and he received grievous injury on his head and died at the spot. Due to illiteracy, the legal relatives of deceased did not lodge any report to police nor he got conducted postmortem of the deceased and his body cremated without giving any intimation to the police. Thereafter legal representative of deceased made request to the official of insurance company i.e. opposite party for payment of insurance policy, but official of insurance company refused to make the payment and told to the legal representative that if he wants to take amount they will file a case in the court and after that the insurance company make the payment to them. After that the complainants moved application to the Sub Divisional Magistrate Patti bearing No.  64 Dasti 28.3.2019 and same has been marked to the Police Post Rajoke P.s. Khalra Tehsil Patti District Tarn Taran and enquiry has been conducted by ASI Kashmir Singh and on the basis of enquiry report one DDR No. 12 dated 144.2019 has been registered at Police Post Rajoke.  The accident took place on the road and insurance company i.e. opposite party is liable to pay the compensation to the complainant because the above said vehicle was fully insured including the risk of driver/ owner. Gursewak Singh (now deceased) was holding a valid driving license. The complainant had filed one claim petition under Section 163-A of Motor Vehicle Act for the grant of compensation on account of death of Gursewak Singh against the insurance company before the Hon’ble Sessions Court Exercising the Powers of Motor Accident Claims, Tribunal Tarn Taran and the same has been decided by the Hon’ble Court of Ms. Priya Sood Sessions Judge, Exercising the Powers of Motor Accident Claims Tribunal Tarn Taran vide order dated 31.8.2021 in which award has been passed Rs. 1,00,000/- against the insurance company in favour of complainant, whereas the insurance company is liable to pay Rs. 15 Lacs  as per insurance. The opposite party has intentionally prolonged / in-ordinarily delayed refused, disbursement of insurance claim, putting in mental agony, depression, harassing and teasing. The complainants have prayed that the opposite party may be directed to pay the insurance claim amount to the complainants for a sum of Rs. 15,00,000/-  alongwith interest till the realisation of the said amount and opposite party may kindly be directed to pay damages and compensation to the tune of Rs. 50,000/- to the complainants. Alongwith the complaint, the complainants have placed on record affidavit or complainant Rajwinder Kaur Ex. C-1, Photostat copy of Aadhaar Card of complainants Ex. C-2 to Ex. C-6, Photostat copy of certificate of insurance Ex. C-7, Photostat copy of death certificate of Gursewak Singh Ex. C-8, Photostat copy of Registration certificate of Vehicle Ex. C-9, Photostat copy of application moved by the complainant No. 1 Ex. C-10, Photostat copy of inquiry report Ex. C-11, Photostat copy of DDR/ Rapat No. 12 Ex. C-12, Photostat copy of driving licence of Gursewak Singh deceased Ex. C-13.

2        Notice of this complaint was sent to the opposite party and opposite party appeared through counsel and has filed written version by interalia pleadings that the complaint being frivolous and vexatious is liable to be dismissed as the complainant has failed to make out a case of deficiency of service as alleged or otherwise, within the meaning of Consumer Protection Act, hence, the present complaint is not maintainable. The complainant has concealed and has suppressed the material and relevant facts of the case. The complaint has been filed with malafide and dishonest intention and complainant has not only concealed the material facts from this commission but has also twisted and distorted the same to suit his own convenience and to mislead this commission. The complainant with malafide did not disclose the true and correct facts before this commission and filed a false complaint only to get undue benefit at the cost of opposite party. The present complaint is clear cut misuse of the Consumer Protection Act.  The complainant has acted in bad faith with respect to subject of this complaint and has approached this commission with unclean hands, hence, in view of doctrine of clean hands:- one who comes unto equity must come with clean hands”  The contract of insurance between the complainant and opposite party is governed by its terms and conditions. The present complaint is barred under section 11 of CPC as the matter in issue has already been decided by Ms. Priya Sood Motor Accident Claim Tribunal, Tarn Taran vide its order dated 31.8.2021. The alleged accident in question is the same and the parties to the complaint is also the same and the matter in controversy is also the same, as such, the present complaint is barred under the law. Even otherwise, the complainant has already knocked the door of the court by claiming the relief in the Motor Accident Tribunal as such, the present complaint is barred under the law as the complainant cannot knock the door twice for the same cause of action once the relief has been claimed under MACT Act, as such, the present complaint is barred under the law. As per the alleged averments in the complaint, the present matter in issue needs proper adducing of evidence as such, the present complaint cannot be filed in the consumer commission  as a substantial question of act is involved in the present case which cannot be proved without adducing proper evidence as according to the alleged averments, neither there is any post mortem nor there is any FIR about the alleged accident, as such substantial question of act is involved, which needs proper evidence, As such, the present complaint in the consumer commission is not maintainable.  The opposite party has denied the other contents of the complaint. Alongwith the written version the opposite party has placed on record affidavit of Roshan Mishra Legal Manager Ex. OP-1, Copy of order passed by Ms. Priya Sood MACT, Tarn Taran Ex. OP-2

3        We have heard the Ld. counsel for the parties and have carefully gone through the record.

4        In the present case it is not disputed that the husband of complainant No. 1 namely Gursewak Singh was owner of motorcycle baring registration No. PB-46AC-6014 and it is also not disputed that the motorcycle in question was insured with the opposite party. The husband of the complainant died on 23.3.2019. The legal representative of deceased made request to the official of insurance company for payment of insurance policy but opposite party refused to make the payment. On the other hands, the case of the opposite party is that the complaint is barred under Section 11of CPC as the matter in issue has already been decided by Smt. Priya Sood Motor Accident Claim Tribunal, Tarn Taran vide its order dated 31.8.2021. But we are not agreed with the opposite party because in the Motor Accident Claim Tribunal the complainants moved for damages and compensation and in the instant case the complainants are claiming insurance claim.

5        From the perusal of the file, neither the complainant nor the opposite party has placed on record any document i.e. repudiation letter which reveals that the claim of the complainant has been decided. Infact the insurance claim has not been decided so far and the same is still pending.  Moreover, the opposite party has denied the facts regarding submission of documents and claim with the opposite party. In case Balu Waman Kadam vs. ICICI Lombard General Insurance Co. IV (2013) CPJ 16A (CN) (Mah.), the matter was similar, wherein the Insurance Company was asking the complainant to submit the documents again and again and the complainant was alleging that he had already submitted the requisite documents to the Insurance Company. In such circumstances, the Hon’ble State Consumer Disputes Redressal Commission Maharashtra disposed of the matter, by directing the Insurance Company to reconsider the claim of the complainant within one month on receipt of the required documents from the complainant. 

6        While relying upon the above said authority, the Hon’ble State Commission, Punjab, Chandigarh passed the similar orders in case M/s Trends, through its Proprietor vs The Oriental Insurance Company Limited & Anr. Consumer Complaint No.245 of 2015 decided on 04.08.2017; and M/s Gurbir Rice Mills v. United India Insurance Company Ltd. & Ors. Consumer Complaint No.404 of 2016, decided on 09.10.2017, directing the Insurance Company to reconsider the claim of the complainant after submission of requisite documents by the complainant to it. 

7        In view of our above discussion as well as keeping in view the ratio of above said judgments, we are of the opinion that the ends of justice would be met, if the Insurance Company be directed to decide the claim of the complainant, after the complainant submit all the requisite documents.  However, the opposite party has not mentioned in the written version that which documents are to be submitted by the complainant to the opposite party.

8        In view of the above discussion, the present complaint is disposed of with the following directions

(a)               The opposite party will submit the list of requisite documents to the complainants within 15 days from the date of receipt of copy of this order.

(b)               The complainants will submit the claim with requisite documents to the opposite party -Insurance Company for deciding the claim within a period of further one month and on approaching the complaint for supplying the requisite documents, the opposite party will issue proper receipt acknowledging the same.

(c)               The opposite party shall decide the claim of the complainants within a further period of two months therefrom.

In case of failure on the part of the opposite party, the claim case of the complainants deemed to have been accepted.  Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this commission and due to COVID -19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.

Announced in Open Commission

04.04.2024