Haryana

Karnal

CC/354/2018

Hardeep Kaur - Complainant(s)

Versus

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

Bhaskar Bhalla

26 Jul 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                            Complaint No.354 of 2018

                                                         Date of instt. 17.12.2018

                                                         Date of decision:26.07.2019

 

Hardeep Kaur aged 40 years widow of Kulwinder Singh son of Gulzar Singh resident of village Jundla, Tehsil & District Karnal.

 

                                                                        …….Complainant 

                                        Versus

 

Iffco Tokio General Insurance Co. Ltd. Area office, SCO 19-20, near Canara Bank, Sector-12, Urban Estate, Karnal through its Branch Manager.

 

                                                                        …..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act.           

 

Before   Sh. Jaswant Singh……President.  

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary……Member

 

 Present   Shri Bhaskar Bhalla Advocate for complainant.

                  Shri Naveen Khatterpal Advocate for opposite party.

                  

                   (Jaswant Singh President)

ORDER:                    

 

                This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that on 9.6.2011 the husband of the complainant namely Kulwinder Singh son of Shri Guljar Singh resident of village Jundla Tehsil & District Karnal was going to Jundla from Jalmana by driving a motorcycle no.HR05Y-6147 borrowed by the husband of the complainant from his nephew i.e Sarabdeep Singh son of Kashmir Singh resident of V.P.O. Ranwar, District Karnal. At about 8 p.m. when he reached near Guru Nanak School Jundla, the motorcycle of the husband of the complainant hit a cycle rehri and he fell on the road. He received injuries and was immediately taken to G.G. Karnal where the husband of the complainant was declared dead. The present accident occurred while driving the motorcycle, which was insured by the OP, vide cover note no.71012936 dated 13.10.2010 which was valid from 13.10.2010 to midnight of 12.10.2011 and the said insurance policy covers with P.A.owner/Driver CSI Rs.1,00,000/- and a premium of Rs.50/-had been deposited in this regard to the OP in this policy. The post mortem report of deceased Shri Kulwinder Singh in this regard was also issued by the G.H. Karnal, vide no.PS/2/11 dated 10.06.2011 by Dr. Prateek Sharma.

 2.            The complainant earlier filed a complaint titled above vide complaint no.47 of 2013 and in the said complaint the learned Predecessor of this Forum, vide order dated 18.11.2014 had directed the complainant to lodge the claim with the OP regarding the death of her husband within a period of 15 days and further directed the OP to settle the claim within a period of 30 days. In compliance of the said order dated 18.11.2014 passed by this Forum, the complainant filed an application on 02.12.2014 with the OP alongwith all the relevant document to get her claim settled but the OP did not pay any heed and has not complied with the said order dated 18.11.2014 ad has not settled the claim of the complainant so far. Thereafter, the complainant filed an execution application before this Forum execution no.41 of 2014 dated 17.12.2014. In the said execution application, the OP filed objections an d repudiated the claim lodged by the complainant as “No Claim” dated 11.03.2016. When complainant perused the repudiation letter, it was written in that letter that “Being a third party, the deceased is not covered by P.A. Policy.” The complainant then choose to file a claim petition before the learned Motor Accident Claims Tribunal Karnal and the said Tribunal vide order dated 23.07.2018 dismissed the said claim petition for lack of jurisdiction and suggested the complainant to file complaint/claim before the competent jurisdiction i.e. Consumer Forum. Hence this complaint.

3.             Notice of the complaint was given to the OP, who appeared and filed written version raising preliminary objections with regard to cause of action; maintainability and concealment of true and material facts. On merits, it is pleaded that the present complaint has been filed by the complainant for claiming the Personal Accident Claim of Rs.1,00,000/- for the death of Kulwinder Singh, husband of complainant, which is not maintainable because of the policy bearing no.74293391 for the period 13.10.2010 to 12.10.2011 insuring vehicle no.HR-05Y-6147 issued in the name of Sarbdeep Singh son of Kashmir. As per Section III (Personal accident cover for owner driver) of terms and conditions of the insurance policy, the coverage is subject to:

a) The owner driver is the registered owner of the vehicle insured herein.

b) The owner driver is the insured named in the policy.

c) 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.

Since, the compulsory personal accidental cover under the motor policy cover only the registered owner of the vehicle subject to condition as mentioned above. The deceased was neither the owner of the vehicle in question nor the policy in question is issued in his name. Hence the claim lodged by the complainant does not come under the purview of the insurance policy accordingly and is repudiated, vide letter dated 11.03.2016. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Complainant tendered into evidence her affidavit Ex.CW1/A and documents Ex.C1 to Ex.C11 and closed the evidence on 21.05.2019.

5.             On the other hand, OP tendered into evidence affidavit of Rajiv Ranjan Ex.RW1/A and documents Ex.R1 to Ex.R4 and closed the evidence on 15.07.2019.

6.             We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             The case of the complainant is that the husband of the complainant Kulwinder Singh was going to Jundla from Jalmana by driving a motorcycle no.HR05Y-6147 borrowed by the husband of the complainant from his nephew i.e Sarabdeep Singh. At about 8 p.m. when he reached near Guru Nanak School Jundla, the motorcycle of the husband of the complainant hit a cycle rehri and he fell on the road. He received injuries and was taken to G.G. Karnal where the husband of the complainant was declared dead. The present accident occurred while driving the motorcycle, which was insured by the OP and the said insurance policy covers with Personal Accident owner/Driver CSI Rs.1,00,000/- and a premium of Rs.50/-had been deposited in this regard to the OP in this policy. The post mortem report of deceased Shri Kulwinder Singh in this regard was also issued by the G.H. Karnal. Complainant lodged the claim with the OP but OP did not pay the claim and repudiated the same. Counsel of the complainant relied upon the judgment of Hon’ble Supreme Court in Civil Appeal no.3538 of 2009 in case titled as Nignamma & Anr. Versus United India Insurance Co.Ltd., ICICI Lombard General Insurance Co. Ltd. Versus Puri @ Puri Devi and others, FAO no.5006 of 2010 (O&M), date of decision 26.03.2015 of Hon’ble Punjab and Haryana High Court, Chandigarh and New India Assurance Company Ltd. Versus Umesh Kumari and others, FAO no.4416 of 2008 (O&M), date of decision 26.10.2009.

8.             The case of the OP is that complaint has been filed by the complainant for claiming the Personal Accident Claim of Rs.1,00,000/- for the death of Kulwinder Singh, husband of complainant, which is not maintainable because of the policy bearing no.74293391 for the period 13.10.2010 to 12.10.2011 insuring vehicle no.HR-05Y-6147 issued in the name of Sarbdeep Singh. Hence the claim lodged by the complainant not falls under the purview of the insurance policy so repudiated, vide letter dated 11.03.2016.

9.             Admittedly, husband of the complainant had borrowed the motorcycle registration no.HR05Y-6147 from his nephew and met with an accident on 9.6.2011 and he died due to injuries received in the accident. At the time of accident, he was driving the said motorcycle. The Personal Accident Claim of Rs.1,00,000/- for the death of Kulwinder Singh, husband of the complainant was repudiated on 11.03.2016 on the ground that the deceased was neither the owner of vehicle in question nor the policy in question issue in his name.

10.            In the present case, deceased was neither the owner of vehicle in question nor the policy in question issue in his name. He borrowed the said motorcycle from its real owner. Therefore, the deceased cannot be held to be employee of the owner of the motorcycle although he was authorized to drive the said vehicle by its owner hence as per observation he would step in the shoes of the real owner of motorcycle. In the present case, admittedly, the premium towards compulsory personal accident to owner cum driver was paid and, therefore, in view of the observations made in the judgment relied by the counsel of complainant, the insurance company is liable to made the payment of the complainant. Thus, we are of the confirmed view that the act of the OP amounts to deficiency in service.

11.            Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to pay Rs.1,00,000/- as insured amount to the complainant with interest @ 9% per annum from the date of repudiation till its realization. We further direct the OP to pay Rs.10,000/- to the complainant on account of mental agony and harassment suffered by her and for the litigation expenses. This order shall be complied within 30 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:26.07.2019

                                                                       

                                                                  President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

               

        (Vineet Kaushik)          (Dr. Rekha Chaudhary)

            Member                               Member