BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Complaint  Case  No : 675 of 2010

Date of Institution :  02.11.2010

Date of  Decision   :  01.08.2011

[1]  Ram Lubhai w/o Late Sh. Tirlok Chand, r/o H.No. 1084, Old Hamida, Yamuna Nagar.

[2]  Himanshu son of Sh. Tirlok Chand, r/o H.No. 1084, Old Hamida, Yamuna Nagar.

 ….…Complainants

V E R S U S

[1]  ICICI Lombard General Insurance Company Ltd., Zenith House, Keshav Rao Khade Marg, Maha Lakshmi, Mumbai through its Manager.

[2]  Branch Manager, ICICI Lombard General Insurance Company Ltd., SCO No. 9-11, Sector 9, Chandigarh.

.…..Opposite Parties

CORAM:   Sh.P.D. GOEL                    PRESIDENT

SH.RAJINDER SINGH GILL          MEMBER

            DR.(MRS).MADANJIT KAUR SAHOTA       MEMBER

Argued by: Sh. Ankush Kalia, Counsel for Complainant.

Sh. Sandeep Suri, Advocate for OPs.

PER P.D.GOEL, PRESIDENT

          Succinctly put, Rakesh Kumar son of Complainant No.1 and brother of Complainant No.2, was employed as driver on the Truck bearing Regn. No.HNX-7737, being owned by Complainant No.1. The said Rakesh Kumar was holding a valid driving licence. The aforesaid truck was duly insured with the OP from 25.8.2007 to 24.8.2008. Besides basic third party liability, cover for paid driver, as well as cover for owner driver to the extent of `2,00,000/-, was also taken at the time of the Policy. Unfortunately, the said truck met with an accident on 5.11.2007, while it was being driven by the said Rakesh Kumar, who sustained grievous injuries in the accident and died on the spot. Subsequently, the Complainants lodged claim with the OPs, supported by copy of DDR, Post Mortem Report, Death Certificate and Policy of Insurance, but the OPs dilly-dallied the matter on one pretext or the other. Hence, this complaint.

2]        Notice of the complaint was sent to OPs, seeking their version of the case.

3]        OPs in their reply, while admitting the factual matrix of the case, pleaded that the Complainants have filed a MACT Claim case and have received claim for the death of said Rakesh Kumar in the accident in question. Hence, double benefit cannot be claimed for the same death. It was submitted that coverage of `2,00,000/- was for owner-driver i.e. a person, who was an owner and driving the vehicle. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4]        Parties led evidence in support of their contentions.

5]        We have heard the learned counsel for the parties and have also perused the record.

6]        The Admitted facts may be noticed thus: (i) that Truck bearing Regn. No.HNX-7737 was insured with the OPs for the period from 25.8.2007 to 24.8.2008; (ii) that the OPs provided a third party cover for paid driver, as well as owner driver of the vehicle to the extent of `2,00,000/-.

7]        Admittedly, Himanshu, minor son of Shri Tirlok Chand filed a MACT Case No. 46 of 2003/ 20.3.2008, titled as Himanshu Vs. Smt. Ram Lubhai and Anr., which was decided on 03.06.2010 by the Motor Accident Claims Tribunal, Yamuna Nagar at Jagadhri. The said Petition was partly allowed with costs. An award of `1,01,000/- was passed in favour of the Claimant, on account of death of his brother – Rakesh Kumar in the accident, along with interest against the Insurance Company.

8]        Vide Para No. 16 of the said order, the Motor Accident Claims Tribunal, Yamuna Nagar came to the conclusion that since deceased – Rakesh Kumar, who was driving the truck at the time of accident, was the son of the owner, so he would not be treated as owner-cum-driver. The learned counsel for the Complainant argued that the said Rakesh Kumar was employed as Driver on Truck bearing Regn. No. HNX-7737, therefore, claim is payable. The Complainant has not produced any evidence on the file to prove that Rakesh Kumar son of Complainant No.1 and brother of Complainant No.2 was employed as driver on the said Truck. More so, the learned Motor Accident Claims Tribunal, Yamuna Nagar in MACT Case No.46 of 2008, referred to above, has already arrived at the conclusion that the deceased - Rakesh Kumar would not be treated as owner-cum-driver in view of the law laid down by the Hon’ble High Court of Punjab and Haryana in New India Assurance Company Limited Versus Umesh Kumari and Others, 2010 (1) RCR (Civil) 669.      

9]        The insurance policy is mark C-4 on the file and under the heading ‘Basic Third Party Liability’, it has been made clear that the premium has been paid to cover the paid driver and also to owner-cum-driver of `2,00,000/-. It has already been held that the deceased – Rakesh Kumar was not a paid driver, nor he was the owner of the truck. Therefore, it is concluded that the claim is not payable, as the deceased – Rakesh Kumar did not fall within the definition of paid driver, as well as owner-cum-driver of the vehicle in question. As per the averments contained in the complaint, the owner of the truck in question is Complainant No. 1 – Ram Lubhai.

10]       In view of the above discussion, in our considered onion, there is no merit, weight or substance in the present complaint and, therefore, the same cannot be accepted in favour of the Complainant and against the OPs. There is neither any deficiency of service, nor indulgence in any unfair trade practice on the part of the OPs. As such, we dismiss the complaint. However, the respective parties shall bear their own costs.

11]       Certified copies of this order be sent to the parties free of charge.  The file be consigned.