Haryana

Karnal

424/2012

Sawarna Devi W/ Madan Kumar - Complainant(s)

Versus

Iffco -Tokio General Insurance Company Limited - Opp.Party(s)

Sh. Surinder Saini

17 Feb 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                                 Complaint No.424 of 2012                                                                           

                                                                     Date of instt.: 4.09.2012

                                                                 Date of decision: 18 .02.2016

 

Smt.Swarna Devi widow of Shri Madan Kumar alias Madan Lal, resident of village Sandohi Post office Sangoha tehsil and District Karnal.

                                                             ……….Complainant.

                             Versus

 

1.Iffco Tokio General Insurance Company Ltd. Karnal through its Manager, Main Market, Sector -8, Urban Estate, Karnal.

 

2.The General  Manager, Iffco Tokio  General  Insurance Company Ltd. 6330, Second Floor, Above Dena Bank, Punjabi Mohalla, Ambala  Cantt.

                                                           ……… Opposite parties.

 

                     Complaint u/s 12  of the Consumer

                     Protection Act.

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

                   Sh.Anil Sharma…….Member.

Present:-        Sh.Surender Saini Advocate for the complainant.

                   Sh.A.K.Vohra Advocate for the Opposite Parties

 

ORDER:  

               

 

                        The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act  1986, on the averments that Motor cycle bearing registration No. HR-05AD-296 owned by Devi Ram son of Sh.Rakeshwar Dass resident of village Sangohi district Karnal was insured with the Opposite Party No.2 for the period of 3.3.2011 to 2.3.2012 vide policy bearing No. 75731522 . As per the terms and conditions of the policy, personal accident premium was also paid for owner cum driver and the insured amount in that regard was Rs.one lac. It has further been pleaded that Madan Lal alias Madan Kumar, the  husband of the complainant was driving the said motor cycle on 22.12.2011 and at about 9.00PM, the same met with an accident at Karnal Indri road i.e. 1.5 Km towards Indri from Karnal and as a result of the said accident Madan Lal expired. The complainant contacted the Opposite Party No.1 just after the accident for making payment of the personal accident claim regarding death of her husband and submitted the requisite documents , but the Opposite Party  no.1  postponed the matter on one pretext or the other and finally refused to pay the claim in April, 2012. Thereafter, she sent requisite claim form alongwith other relevant documents to Opposite Party no.2 on 21.4.2012, but to no effect.  In this way, there was deficiency in services on the part of the Opposite Parties, due to which she suffered mental pain and agony apart from financial loss.

 

2.                 Notice of the complaint was given to the Opposite Parties who appeared and filed written statement disputing the claim of the complainant. Objections have been raised that the complainant has not approached to this Forum with clean hands; that the complainant has no loucs standi to file the present complaint;  and that the complaint is grossly misconceived, false and frivolous and has been filed just to harass the Opposite Parties.

 

                   On merits, it has not been disputed that motor cycle in question owned by Devi Ram was insured with the Opposite Parties. It has been submitted that the complainant had not lodged claim with the Opposite Parties. Moreover, the deceased was neither owner nor driver at the time of alleged accident, because insured was Devi Ram and not Madan Lal. The other allegations made in the complaint have been specifically denied.

 

3.                 In evidence of the complainant, her affidavit Ex.C1 and documents Ex.C2 to Ex.C9 have been tendered.

 

4.                 On the other hand, in evidence of the Opposite Parties affidavit of Palvi Raj Ex.O1 and copy of cover note Ex.O2 have been tnedered.

 

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.                It is not in dispute that motor cycle bearing registration No. HR-05AD-296  was insured with the Opposite Parties  and the premium of Rs.50/- was paid towards personal accident claim. The copy of the First Information Report Ex.C7 shows that on 22.12.2011 at about 9.00AM, the said motor cycle was being driven by Madan Lal and the same met with an accident on Indri Karnal road. Madan Lal was shifted to general hospital, Karnal by Joginder Singh, who lodged the Firs Information Report.  It is established from the copy of Post Mortem Report Ex.C8 that Madan Lal died on account of injuries sustained by him in the said accident. As per the death certificate Ex.C9, Madan Lal died on 22.2.2011, while admitted in the General Hospital, Karnal.

 

7.                The Opposite Parties raised two pleas  viz i) that no claim was lodged by the complainant with the Opposite Parties  and ii) that Madan Lal was not owner – driver at the time of accident because insured was Devi Ram.The documents Ex. C2 to Ex.C4 show that complainant had submitted the claim to the Opposite Parties  on 21.4.2012 through registered post and the said postal parcel was delivered to the Opposite Parties on 23.4.2012.  Therefore, the plea of the Opposite Parties  that the complainant did not lodge the claim cannot be accepted.

 

8.                The learned counsel for the Opposite Parties has put a great thrust on the contention that  Devi Ram,  was  the registered owner of the motor cycle insured with the Opposite Parties. Madan Lal was neither registered owner nor insured of the motor cycle and as such he had no insurable interest.  Moreover, the insurance company covered personal accident claim risk of owner-driver of the vehicle at the time of accident or paid driver of the insured. Madan Lal was not covered under the personal accident claim of owner - driver or paid driver. Therefore, the complainant is not entitled to get compensation for death of her husband. In support of his contention he placed reliance upon 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.

 

9.                 To wriggle out of the aforesaid contention, the learned counsel for the complainant vehemently argued that Madan Lal borrowed motor cycle from registered owner Devi Ram and being borrower, he steeped into the shoes of owner/registered owner, therefore, he was covered under the personal accident claim risk of owner cum driver as per terms and conditions of the insurance policy and consequently, the complainant being the  his widow is entitled to get compensation. In support of his  contention, he placed reliance upon Bajaj Allianz General Insurance Company Limited Vs. Jasmer Singh and another Vol.CLXXVII2015(1) PLR 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.          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 by the proposition of law laid down in Jasmer Singh’s case (Supra) and Poonam‘s case (Supra) .   The  authority cited on behalf of the Opposite Parties does  not render any help to the Opposite Parties under the facts and circumstances of the present case.   On 22.12.2011,  Madan Lal was driving the  motor cycle of Devi Ram, which was  insured with the Opposite Parties and the said motor cycle met with an accident as a result of which Madan Lal sustained injuries and succumbed to those injuries while admitted in the  General Hospital, Karnal.  Madan Lal was neither registered owner nor     paid driver of the registered owner/insured Devi Ram,  therefore, his position was  of borrower. Thus, being borrower, he stepped into the shoes of registered owner. As he stepped into the shoes of registered owner, the term of comprehensive policy became 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 validity of the said driving licence of Madan Lal  has not been disputed by the Opposite parties. Consequently, Madan Lal 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 Parties to make the payment of Rs.one  lac to the complainant alongwith interest @ 9% per annum from the date of filing of the present complaint i.e.

 

4.09.2012 till its actual realization. The complainant shall also be entitled for a sum of Rs.5500/- 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:18.02.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.

 

 

 

 

Present:-        Sh.Surender Saini Advocate for the complainant.

                   Sh.A.K.Vohra Advocate for the Opposite Parties

 

                   Arguments heard. For orders, the case is adjourned to 18.2.2016.

 

Announced
dated:17.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.

 

Present:-        Sh.Surender Saini Advocate for the complainant.

                   Sh.A.K.Vohra Advocate for the Opposite Parties

 

                   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.