Haryana

Karnal

CC/76/2022

Babli - Complainant(s)

Versus

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

Raj Kumar Sharma

14 Sep 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 76 of 2022

                                                        Date of instt.14.02.2022

                                                        Date of Decision:14.09.2023

 

Babli wife of late Shri Rampal, resident of village Baraunda, Tehsil Ladwa, District Kurukshetra, (age about 41 year). Aadhar card no.3410 9362 2658. Mobile no.74970-01256.

 

                                               …….Complainant.

                                              Versus

 

Iffco Tokio General Insurance Company Limited through its legal Manager, Hafed Building, Sector 12, Karnal.

                                                                                                                                                                        …..Opposite Party.

       

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.

              Sh. Vineet Kaushik……Member 

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri R.K. Sharma, counsel for the complainant.

                    Shri Rohit Gupta, counsel for the opposite party.

 

                    (Jaswant Singh President)

ORDER:                     

          

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that Shri Ram Pal husband of complainant (since deceased) was the registered owner of the motorcycle bearing registration no.HR-97-4056. The said motorcycle was got insured with the OP. The insured has paid a sum of Rs.350/- for insurance of personal accident to owner, driver for a sum insured of Rs.15 lacs. Complainant is a nominee in the said policy. In the morning of 28.07.2021, Balwinder Singh @ Bachchi son of Shri Hawa Singh and Rampal were going from village Budhanpur, District Karnal to their village Baraunda on the said motorcycle, which was being driven by Rampal on a moderate speed, on his due left hand side of the road by observing the traffic rules and maintaining the proper distance, whereas, Balwinder Singh @ Bachchi was the pillion rider with him. They have started from village Budhanpur for their village Baraunda at about 8.00 a.m. on that day and when at about 10.00 a.m. they reached on Karnal-Indri road, near Jain Mandir, a car bearing registration no.HR-60F-5500 came from Karnal side which was being driven by its driver in rash, negligent and careless manner and hit the motorcycle of Rampal. Both Rampal and Balwinder fell on the road and received multiple injuries. The driver of the car sped away from the spot after leaving his car at the spot. Both Rampal and Balwinder were shifted from the place of accident to Government Hospital, Karnal where both were declared dead by the doctors. Postmortem on the dead bodies of both were conducted. An FIR no.0720 dated 28.07.2021, under section 279, 304-A of IPC was got registered regarding the said accident. Complainant being nominee got lodged the claim with the OP on 13.10.2021 under the personal accident claim and submitted all the required documents. It is further averred that Rampal was a perfect driver and he possessed a valid, effective and legal driving licence at the time of accident resulting in his death but the same was lost in this very accident. Thereafter, complainant requested the OP so many times to settle the claim but OP did not settle the same. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.          

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi; jurisdiction and concealment of true and material facts. On merits, it is pleaded that the present complaint is premature as no claim was filed with the OP with regard to alleged accident. Since no claim was lodged or any documents were submitted to the OP with regard to said PA claim, OP is unable to take proper plea with regard to admissibility of the claim of complainant under the terms and conditions of the insurance policy. It is further pleaded that complainant has mentioned that, the driving licence of the deceased driver was lost in very accident. The complainant concocted a false story for loss of driving licence of the driver just to take the undue benefit of insurance policy. Even, if the said averment of complainant has taken as true, it is the onus upon the complainant to prove that the owner-driver was in fact in possession of a valid and effective driving licence to drive the insured vehicle on the date of alleged accident. Had the deceased driver possessed a valid driving licence on the fateful date of alleged accident, the complainant could easily have obtained its particular from the concerned Transport Authority. Having not been done, there is no escape from the conclusion that the deceased driver in fact did not possess a valid and effective driving licence on the date he met with the alleged accident and the vehicle was being driven in contravention of the terms and conditions of the motor insurance policy as well as Motor Vehicle Act which necessitates a person driving a motor vehicle to possess a valid and effective driving licence. Even there is a special condition regarding driving licence is contained under the Personal Accident Owner-driver cover of the insurance policy, that “the owner driver holds an effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of accident.  It is further pleaded that for want of the claim intimation and without submission of the necessary documents including valid and effective copy of driving licence or its particulars, no liability can be fastened on the OP. There is no deficiency in service and unfair trade practice 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.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of claim application Ex.C1, postal receipt Ex.C2, copy of aadhar card Ex.C3, copy of FIR Ex.C4, copy of application moved by police for conducting he Postmortem to Chief Medical Officer Ex.C5, copy of inquest report Ex.C6, copy of postmortem examination report Ex.C7, copy of Fard Makbujgi motorcycle Ex.C8, copy of death certificate Ex.C9, copy of RC Ex.C10, copy of insurance policy Ex.C11, copy of application dated 12.12.2007 by complainant to Licensing Authority, Samalakha, Panipat Ex.C12 and closed the evidence on 16.02.2023 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Gurvinder Kaur, General Manager Ex.OP1/A, copy of insurance policy Ex.OP1 and closed the evidence on 04.07.2023 by suffering separate statement.

6.             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.

 

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that husband of complainant (since deceased) was the registered owner of the motorcycle bearing registration no.HR-97-4056. The said motorcycle was got insured with the OP. The insured had paid a sum of Rs.350/- for insurance of personal accident to owner, driver for a sum insured of Rs.15 lacs. Complainant is a nominee in the said policy. On 28.07.2021, the husband of complainant died in a roadside accident while driving the insured motorcycle. An FIR no.0720 dated 28.07.2021, under section 279, 304-A of IPC was got registered regarding the said accident. On 13.10.2021 complainant being nominee got lodged the claim with the OP under the personal accident claim and submitted all the required documents but OP did not pay the claim and denied the same on the false and frivolous ground. He further argued that at the time of accident Rampal was having a valid driving licence but the driving licence has been lost and complainant got report from the Licencing Authority, Samalkha and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that complaint is premature as no claim was submitted with the OP with regard to alleged accident. Since no claim was lodged or any documents were submitted to the OP with regard to said personal accident claim, OP was unable to take proper plea with regard to admissibility of the claim of complainant under the terms and conditions of the insurance policy. He further argued that the insured was not having valid and effective driving licence at the time of accident and prayed for dismissal of the complaint.

9.             Admittedly, Rampal (since deceased) was the owner of the motorcycle bearing registration no. HR-97-4056. It is also admitted that said motorcycle was insured with the OP company. It is also admitted that insured had paid a sum of Rs.350/- for insurance of personal accident to owner-cum-driver for sum of Rs.15,00,000/-. It is also admitted that complainant is the nominee in the said policy.

10.           On 28.07.2021, the insured expired in roadside accident, near Jain Mandir, Indri Road, Karnal. In this regard, an FIR Ex.C4 dated 28.07.2021 under section 279 and 304-A IPC was got lodged by Sunil Kumar brother of the insured in Police Station, Sadar, Karnal. The police moved an application Ex.C5 dated 28.07.2021 before the Chief Medical Officer, Government Hospital, Karnal for conducting the postmortem upon the dead body of Rampal. After postmortem, postmortem report Ex.C7 was prepared by Kalpana Chawla Government Medical College, Hospital, Karnal. As per postmortem report, the cause of death is injuries. The concerned police has also taken into possession the insured motorcycle, vide recovery memo Ex.C8 dated 28.07.2021. The death certificate Ex.C9 is also on file. From the abovesaid documents, it has been proved on record that insured has expired in a roadside accident.

11.           The claim of the complainant has been denied by the OP on the ground of non-submission of the claim form.

12.           The complainant has submitted that the claim form was submitted with OP on 13.10.2021. The onus to prove her version was relied upon the complainant. To prove her version, complainant relied upon the copy of claim application Ex.C1 dated 13.10.2021. The said application has been sent to OP through registered post alongwith copy of FIR, copy of post mortem report, copy of aadhar card, copy of registration certificate of motorcycle and copy of insurance policy. In this regard, complainant has placed on file postal receipt Ex.C2. In view of the above, it has been proved on record that complainant has submitted the claim form with OP and OP intentionally and deliberately denied the same. Hence the plea taken by the OP has no force.

13.           As per insurance policy Ex.OP1, the personal accident cover for owner-driver is subject to:

1. The owner-driver is the registered owner of the vehicle insured herein:
2. The owner-driver is the insured name in this policy.
3. The owner-driver holds on effective driving licence, in accordance with provision of Rule 3 of the Central Motor Vehicle Rules, 1989 at the time of accident.

 14.          Undisputedly, the insured was the registered owner of the vehicle in question and insurance policy was in the name of the insured.

15.           Only disputed issue is that whether the insured was holding an effective driving licence at the time of accident or not?

16.           The onus to prove the said issue was relied upon the complainant. To prove her version, complainant placed on file application Ex.C12 alongwith report of Licencing Authority, Samalkha. The said application has been moved before the Licencing Authority, Samalkha, Panipat with the request of verification the driving licence no.17322/Samalkha dated 12.12.2007 validity date 11.12.2015 in the name Rampal son of Kishna Ram. The Licencing Authority, Samalkha, on verification of the record has made a report that driving licence bearing no.17322/SMK has been issued on 12.12.2007 to drive the motorcycle, car and tractor. The validity of the said licence is upto 11.12.2025 and said licence is in the name of Rampal (i.e.insured) son of Kishna Ram. From the above report, it has been proved that insured was having valid and effective driving licence at the time of accident.

17.           From the abovesaid discussion, it has been proved on record that complainant has submitted the claim with the OP and insured was having a valid and effective driving licence at the time of accident and also died in a roadside accident.

18.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, 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”.

19.           Keeping in view the ratio of the law laid down in the abovesaid authority and the facts and circumstances of the present complaint, we are of the considered view that the act of the OP while denying the claim of complainant amounts to deficiency in service, which is otherwise proved as genuine one. Hence, complainant is entitled for the insured amount under personal accident claim.

20.           As per insurance policy Ex.C11/OP1, the sum insured under personal accident  is Rs.15,00,000/-. Hence the complainant being nominee is entitled for Rs.15,00,000/- the insured amount alongwith interest, compensation for harassment, mental pain and agony and litigation expenses etc.

21.           In view of the above discussion, we allow the present complaint and direct the OP to pay Rs.15,00,000/- to the complainant alongwith interest @ 9% per annum from the date of filing of the complaint i.e.14.02.2022 till its realization. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by her and Rs.11,000/-for the litigation expense. This order shall be complied 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.

Announced

Dated:14.09.2023   

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                     Member                        Member