DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.320/2011

1.      Sh. Amit Chauhan

J-3/188, Block J-3, Khirki Extension,

New Delhi-110017                                                         

2.      Sh. Veerpal Singh (father of the deceased)

Vill. Raishna, Post- Kinanagar, Meerut (UP).

3.      Sh. Jagdev Singh (father of the deceased)

J-3/188, Block J-3, Khirki Extension,

New Delhi-110017                                             ….Complainants

Versus

Iffco Tokio General Insurance Co. Ltd.

Iffco Sadan, C-1, Disstt. Centre,

Saket New Delhi-110017                                          ….Opposite Party

                                                  Date of Institution      : 06.09.11            Date of Order      : 10.10.18   

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

Facts as stated in the nutshell are:-

1. The complainant, Sh. Amit Chauhan had taken a comprehensive insurance cover from Iffco Tokio General Insurance Co. Ltd. hereinafter referred to the OP, against his motor cycle.
   1. The complainant had purchased a bike TVS Apache RTR 180 by paying Rs.76,177/-.  It is stated that the OP had provided the comprehensive insurance to the said vehicle and in this regard the complainant had paid Rs.1550/-. It is submitted that the complainant No.1 had told the representative of OP that besides the complete coverage to the vehicle he must include the personal accidental cover for the bike rider i.e. the owner as well as the driver other than the owner with pillion rider. Accordingly the representative of the OP issued the cover note. The cover note has been annexed as Annexure CW/2.
   2. On 19.02.11 the complainant No.1’s motor cycle met with an accident. The said motor cycle was being driven by the cousin of  the complainant No.1, namely, Sh. Hitesh Chauhan, son of the Sh. Veerpal Singh (complainant No.2). It is further submitted that the complainant No.1’s brother Sh. Vivek Chauhan was sitting behind as a pillion rider. In the said unfortunate accident both the bike rider and pillion rider got killed and the vehicle was completely damaged. The documents in support have been annexed as Annexure CW/3. It is further stated that  the complainant No.1 had not received the policy papers from OP even after several reminders. Finally he had to personally go and collect the same from the OP. Thereafter, the complainant applied for the disbursement of claim for the damaged vehicle and for the payment of claim against the deceased under the personal accident cover.
   3. The complainants were shocked to know from the OP that the claim could not be allowed as the driver and the pillion rider were not covered under the said policy. The complainant No.1 raised his objection against the same as he had paid Rs.1550/- whereas in the policy documents, the premium paid was shown Rs.1407/-. The OP had failed to explain as where had they adjusted the balance amount of Rs.143/- which had been paid for the coverage of the driver other than owner and pillion rider. It is further submitted that the vehicle had been completely damaged but the OP was refusing to accept the same as complete damage. The copy of the policy documents and relevant documents are annexed as Annexure CW/4.
   4.  It is further averred by the complainant that he received a letter from the investigator, Recovery Claim Bureau, namely, Sh. Pankaj Bedi of the OP whereby the investigator had denied the claim of the complainant on the ground that the driver and the pillion rider were not covered under the said policy. The documents in support have been annexed as Annexure CW/5.
   5. Thereafter, the complainant visited the office of the OP several times but all in vain. Aggrieved by the above circumstance the complainant approached this Forum with the prayer to direct the OP to pay Rs.76,877/-, the cost of the motor cycle with  18% interest, for direction to OP to pay Rs.1 lakh to the complainant No.2 towards the personal accident cover with 18% interest.  It is further prayed for direction to the OP to pay Rs.1 lakh to the complainant No.3 towards the personal accident cover with 18% interest and to pay compensation  of Rs.1 lac to the complainant No.1 towards mental agony & mental torture and Rs.25,000/- as litigation & miscellaneous expenses.

2.      OP in the written statement has inter-alia stated that the complainant No.1 had taken comprehensive two wheeler policy from the OP for a period from 27.06.10 to 26.06.2011 and paid the premium amount of Rs.1407/-.  It is further submitted that at the time of insurance the Insured Declared Value (IDV) of the vehicle was Rs.64,600/- only.  The copy of the policy terms and conditions alongwith policy schedule are annexed as Annexure A (1) - (11).

2.1    It is next submitted by the OP that only the owner driver was covered under the policy. The driver other than the owner of the said insured vehicle in question was not covered in any manner under the present contract of insurance between the complainant and the OP. OP submits that under the current policy any risk to a pillion rider of the insured vehicle was not recovered. In this regard no premium was either charged by the OP or was ever paid by the complainant.

2.2    On 19.02.2011 the insured vehicle met with an accident and as a result thereof the river and pillion rider of the insured vehicle was severally injured and died during the course of the treatment.  The complainant lodged a claim with the OP on 15.03.11 for Own damage and another claim related to the personal accident. The investigator was appointed by the OP to assess the losses incurred by the insured. The report of the investigator after assessment  concluded that the above claims were not payable in accordance to the terms and conditions of the policy as the same did not cover risk associated with the pillion rider of the insured vehicle and the driver of the insured vehicle who is not the owner. 

2.3    It is further submitted that the several letters were sent to the insured to produce the original bills of the repairs. It was also requested to the complainant to produce the insure vehicle for re-inspection after final repair alongwith the salvage.  On 17.11.11 the final letter was sent to the complainant to comply with its request made in the previous letters, within 7 days failing which the insurance company shall be forced to assume his disinterest in the claim and as a consequence of which the claim of the insured will be closed as no claim without any further communication. OP reiterates that the Insurance Company is not liable to make any payment for any liabilities which are not covered under the policy and therefore not liable to indemnify the insured for such risk which are beyond the purview of the policy. Hence, as the complainants have approached this Forum with unclean hands, the complaint is liable to be dismissed with heavy costs.

3.      Rejoinder and evidence by way of affidavit on behalf of the complainants have been filed wherein they have reiterated the facts of the complaint. 

4.      OP has not filed any evidence by way of affidavit.

5.      Written arguments have been filed on behalf of the parties. Certified copies of the two petitions alongwith the judgments delivered under Motor Vehicle Act have been filed by the father of the complainant No.1.

6.      After having heard the Ld. Counsels of the parties and perusing the record it is noticed that the complainant No.1 had taken a   Comprehensive Two Wheeler Policy from the OP against his motor cycle.  That in this regard the complainant No.1 had paid Rs.1550/- which is evident from the cover note placed on record as Annexure CW/2. On 19.02.11 complainant No.1’s motor cycle met with an accident which was being driven by his cousin, namely, Hitesh Chauhan, the son of the complainant No.2. The complainant No.1’s brother Vivek Chauhan was sitting behind as a pillion rider. In the said accident both the rider and pillion rider were killed and the vehicle was completely damaged.

7.      The dispute between the parties arose when the complainant No.1 filed claim for the damaged vehicle and claim against the deceased under personal accident cover. It is pertinent to mention here that at the time when the complainant No.1 was insured he was given  a cover note wherein the calculation of premium made was Rs.1550/- that was paid by the complainant. Meanwhile, the complainant sent reminders to OP for providing him with the insurance policy and finally after the said accident the complainant No.1 collected the insurance policy from OP. The complainant filed for claim under the insurance policy. He was shocked to know that the claim of the complainant No.1 was being rejected as the driver and the pillion rider were not covered under the said policy.  Complainant No.1 raised his objection against the same as he had paid Rs.1550/- whereas in the policy documents the premium paid was shown to be only Rs.1407/- The OP had failed to explain as where had they adjusted the balance amount of Rs.143/- which according to the complainant No.1  had been paid for the coverage of the driver other than owner  and pillion rider.

8.      OP in its written statement has submitted that the complainant  had taken a Comprehensive Two Wheeler Policy from the OP and had paid the premium amount of Rs. 1407/-. OP has failed to provide any plausible reason for the discrepancy in the calculation of the premium i.e. Rs.1550/- on the cover note and Rs.1408/- on the two wheeler policy certificate of insurance cum schedule.

9.      The OP submits that the driver other than the owner of the said insured vehicle in question is not covered in any manner under the present contract of insurance between the complainant and the OP. It is further submitted that under the current policy any risk to a pillion rider of the insured vehicle is not covered. In this regard no premium was either charged by the OP or was ever paid by the complainant.

10.    A study of the breakup of the premium charged reveals that an amount of Rs.50/- has been charged from covering personal accident (PA) of owner/driver for an amount of Rs.1 lakh. Further study of the driver clause in the above said policy reveals that “Any person including insured; provided that the person driving holds and effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective learner’s license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules, 1989.”

11.    Therefore, it is evident from the above clause that any person including the insured who holds an effective driving license is covered under the policy taken by the complainant. Late Hitesh Chauhan held a valid and effective driving license annexed as Annexure CW1. Therefore there is no justifiable reason for the OP to have denied the claim for personal accident of the driver. Further as regard the pillion rider the OP has failed to give any plausible reason for discrepancy between Rs.1550/- charged on the cover note and Rs.1408/- premium paid shown in the policy.  The OP by not providing the policy soon after accepting the premium of Rs.1550/- shows the malafide intention of the OP which leads to a conclusion that  policy document has been manipulated on subsequent date to avoid accident coverage to the passenger/pillion rider.  Thus, the OP is liable to indemnify for the pillion rider as well.

12.    The complainant No.1 had given the copy of the estimate bill for the repair of the vehicle in question annexed as Annexure CW1/4. It is noticed that the total estimated cost of repairing the vehicle  in the bill was Rs.82,400/- which is much more than the price/IDV of the vehicle hence the OP is directed to consider the damaged vehicle under the complete damage and indemnify for total loss.

13.    In the light of above discussions we find OP to be guilty of deficiency in service and allow the complaint with the direction to OP to pay Rs.64600/- i.e. the IDV of the vehicle plus Rs.2,00,000/- towards the personal accident cover of the driver and the pillion rider with interest @ 6% per annum from the date of filing of the claim till realization within one month from the date of receipt of copy of this order. Failing which OP shall liable to pay 9% interest on the above said amount. Additionally the OP is directed to pay compensation of Rs.20,000/- to the complainant  towards mental agony, harassment and litigation expenses.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 10.10.18.