Chandigarh

StateCommission

A/320/2023

NEELAM SHARMA - Complainant(s)

Versus

IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED - Opp.Party(s)

DEVINDER KUMAR

27 Feb 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	320 of 2023
Date of Institution	:	21.11.2023
Date of Decision	:	27.02.2024

1. Smt.Neelam Sharma, age 59 years, wife of Sh.Khem Chand Sharma, mother of Sh.Ankush Sharma, deceased;
2. Sh.Khem Chand Sharma, age 66 years, son of Sh.Ballo Ram Sharma, father of Sh.Ankush Sharma, deceased (Insured-Owner of Car No.PB-65-AH-0563)

Both r/o H.No.3073, Global City, Sector 124, Kharar, District SAS Nagar, Mohali, Punjab 144301

2^nd Address:- H.No.7, SBI Complex, Sector 64, Phase-X, Mohali, Punjab 160062

……Appellants/Complainants

V e r s u s

IFFCO TOKIO General Insurance Company Limited, Branch Office through Branch Manager, Plot No.2 B & C, Madhya Marg, Sector 28, Chandigarh

 …..Respondent/opposite party

===========================================================

Appeal No.	:	319 of 2023
Date of Institution	:	21.11.2023
Date of Decision	:	27.02.2024

1. Anita Bhatia, aged 55 years, wife of Sh.Adarsh Bhatia, mother of Sh.Rajesh Bhatia deceased,
2. Adarsh Kumar @ Adarsh Bhatia, age 59 years, son of Sh.Basant Lal Bhatia, father of Sh.Rajesh Bhatia, deceased (Insured Owner of Car No.CH-01-AU-1371)
3. Pallavi Bhatia, age 33 years, daughter of Adarsh Kumar, sister of Sh.Rajesh Bhatia, deceased.

All R/o H.no.5316/B, Sector 38-West, Chandigarh

 

……Appellants/Complainants

V e r s u s

IFFCO TOKIO General Insurance Company Limited, Branch Office through Branch Manager, Plot No.2 B & C, Madhya Marg, Sector 28, Chandigarh

 …..Respondent/opposite party

 

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR.RAJESH K. ARYA, MEMBER

                            

Present:-              Sh.Devinder Kumar, Advocate for the appellants.

                             Sh.Yogesh Gupta, Advocate for the respondent(s).

 

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The appellants/complainants have come up with these appeals for enhancement of the reliefs awarded by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short the District Commission), vide common order dated 03.10.2023, whereby the consumer complaints bearing no.70 of 2022 (Smt.Neelam Sharma and anr. Vs.IFFCO TOKIO General Insurance Company Limited) and 652 of 2022 (Anita Bhatia and others Vs. IFFCO TOKIO General Insurance Company Limited) filed by them were allowed and the opposite party/respondent was directed as under:-

CC No.70 of 2022-Smt.Neelam Sharma & Ors. vs. IFFCO TOKIO General Insurance Company Limited.

“……12]      In view of the above discussion and findings, the deficiency in service on the part of Opposite Party stands proved. Therefore, the present complaint stands allowed against OP with direction to pay a sum insured amount of Rs.15 lacs under P.A.Cover of insured vehicle in question, to the complainants being LRs of deceased Sh.Ankush Sharma in equal shares with interest @7.5% p.a. from the date of death of deceased i.e. 28.8.2021 till date of actual realization. 

 13]      Similarly, the connected Consumer Complaint No.652 of 2022 – Anita Bhatia & Ors. vs. IFFCO TOKIO General Insurance Company Limited, also stand allowed against OP with direction to pay a sum insured amount of Rs.15 lacs under P.A.Cover of insured vehicle in question, to the complainants being LRs of deceased Sh.Rajesh Bhatia in equal shares with interest @7.5% p.a. from the date of death of deceased i.e. 08.01.2021 till date of actual realization. 

             This order shall be complied with by the Opposite Party within a period of 90 days from the date of receipt of its certified copy...…”

2.           The facts are being culled out from C.C.No.70/2022 – Smt. Neelam Sharma and another  Vs. IFFCO TOKIO General Insurance Company Limited. Before the District Commission, it was the case of the complainants   that they are the legal representatives of Sh.Ankush Sharma, who died in a roadside accident on intervening night of 28/29.08.2021 while driving Alto Car bearing Regd. No.PB-65-AH-0563 owned by his father i.e. complainant No.2, which was insured with the opposite party vide insurance cover, Annexure C-6, valid from 13.4.2021 to 12.4.2022. On 28.8.2021, the son of the complainants namely Sh.Ankush Sharma was going from Chandigarh to Rohru District Shimla (HP) while driving a Car No.PB-65-AH-0563 owned by the insured-Complainant No.2, Sh. Khem Chand Sharma, the father of the deceased and Monika was other occupant of the aforesaid car. After crossing Theog, when they reached in the area of Adela Thach near Parmeshwari Dhank, the car suddenly fell in a Dhank (gorge), as a result they both received serious injuries and died. The deceased were taken to CHC Nankhari, District Shimla, where their post mortems were conducted and FIR No.63 dated 31.08.2021 was registered at Police Station Nankhari, District Shimla (HP) under Section 279/304-A of IPC. Since, the car in question involved in the accident was duly insured with the opposite party, covering the risk of Registered Owner - Driver (CSI) under the head of P.A. Cover under section III for Rs.15,00,000/-, as such, the complainants being legal heirs of the deceased lodged the claim for the grant of the aforesaid amount with the opposite party, which was repudiated vide letter dated 27.11.2021 with a reason "No Claim" on the ground that Ankush Sharma was driving the vehicle at the time of accident whereas the Registered owner-cum-insured of the Car was Khem Chand Sharma at the time of accident.   Consumer complaint bearing no. 652 of 2022 titled as Anita Sharma and others Vs. IFFCO TOKIO General Insurance Company Limited had also been filed on similar grounds. 
3.           The consumer complaints were contested by the opposite party by filing written versions, wherein it was stated that the accident cover under the policy in question is meant for Owner-cum-Driver only and not for any unnamed persons who might use the insured vehicle. In the form insurance cover it is mentioned that Khem Chand Sharma has nominated Neelam Sharma (wife) being the person to receive the proceeds of the P.A. Claim in case the insured Khem Chand Sharma dies in the accident while driving the insured vehicle in question.  P.A. cover was only meant for Khem Chand Sharma. It is denied that the deceased Sh. Ankush Sharma has stepped into the shoes of the owner, when the owner himself is alive and thus, the borrower of a vehicle will not become the owner of the vehicle. Similar written version was filed in  Consumer complaint bearing no. 652 of 2022 titled as Anita Sharma and others Vs. IFFCO TOKIO General Insurance Company Limited. Denying all other allegations, it is prayed that the complaints be dismissed.
4.           The contesting parties led evidence by way of affidavits and numerous documents before the District Commission, in support of their cases.
5.           The District Commission after hearing the contesting parties and on going through the material available on record, allowed the consumer complaints, in the manner stated above. However, these appeals have been filed by the respective appellants/complainants for enhancement of the reliefs awarded by the District Commission.         
6.           We have heard the contesting parties and carefully gone through the material available on the record, including the written arguments.
7.           During arguments, counsel for the appellants vehemently contended that the award given by the District Commission, in both the cases, needs enhancement on  following grounds:-

 

1. Firstly, the interest @7.5% p.a. awarded by the District Commission on the insured amount of Rs.15 lacs,  is on the lower side and it should have been  at-least 12% p.a.;
2. Secondly, neither any compensation for mental agony and harassment nor any litigation cost has been awarded by the District Commission, despite the fact that the appellants are the successfully litigants.

 

8.           First coming to the contention raised by the appellants to the effect that interest awarded @7.5% p.a., by the District Commission, on the insured amount of Rs.15 lacs is on the lower side, it may be stated here that it has been observed by this Commission that from the last few years, the Hon’ble Supreme Court and the National Commission has been  awarding interest on the amounts to be refunded to the successful litigants, ranging between @9% p.a. to 12% p.a. which is also being followed by this Commission. Under these circumstances, in our considered opinion, interest@7.5% p.a.  awarded by the District Commission in both these cases, appears to be on the lower side. In our considered opinion, if interest @9% p.a. is awarded on the insured amount of Rs.15 lacs under P.A. Cover of insured vehicle in question, in both these cases, that will be meet the ends of justice. The order of the District Commission needs to be modified in this regard.
9.           Now coming to the contention raised by the appellants regarding non award of compensation for mental agony and harassment and also litigation expenses, it may be stated here that the jurisdiction of a Consumer Commissions, constituted under the Act is very wide and at the same time, the very object is to compensate a “Consumer”, who is a successful litigant, for the loss or injury suffered by him on account of its oppressive, capricious, arbitrary or negligent act of the party opposite.  It is also well settled that the word ‘Compensation’ is of very vide connotation and once the Commission is satisfied that the complainant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate the complainant for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. However, in the present cases, the District Commission fell into an error in not awarding compensation for mental agony and harassment suffered by the complainants.

                   Now coming to non award of litigation cost to the appellants by the District Commission, it may be stated here that we must remember that cost is not awarded as a punishment to the defeated party but as recompense to the successful party for the expenses to which he had been subjected to. In Salem Advocates Bar Association v. Union of India [2005 (6) SCC 344], the Hon’ble Supreme Court held that “costs have to be actual reasonable costs including the cost of time spent by the successful party, the transportation and lodging, if any, and any other incidental costs besides the payment of the court fee, lawyer’s fee, typing and other costs in relation to the litigation.”  On this count also, the District Commission fell into an error in not awarding compensation for mental agony and harassment and also litigation expenses to the appellants/complainants and as such, the common order needs modification to this extent also.

10.           For the reasons recorded above, both these appeal stand partly allowed. The common orders impugned passed by the District Commission in the consumer complaints aforesaid, are modified as under:-

First Appeal No.320 of 2023 (CC No.70 of 2022-Smt.Neelam Sharma and another Vs. IFFCO TOKIO General Insurance Company Limited)= The respondent/opposite party is directed:- 

1. To pay the sum insured amount of Rs.15 lacs under P.A.Cover of insured vehicle in question, to the appellants/complainants being LRs of deceased Sh.Ankush Sharma in equal shares with interest @9% p.a. from the date of death of deceased i.e. 28.8.2021 within a period of  30 days from the date of receipt of a certified copy of this order failing which, thereafter, it shall be liable to pay the same alongwith penal interest @12% p.a. from the date of default till realization.
2. To pay an amount of Rs.75,000/- to the appellants/complainants as compensation for causing them mental agony and harassment, as also Rs.35,000/- as cost of litigation, within a period of  30 days from the date of receipt of a certified copy of this order failing which, it shall be liable to pay the same alongwith penal interest @9% p.a. from the date of default till realization.

First Appeal No.319 of 2023 (CC No.652 of 2022-Anita Bhatia and Ors. Vs. IFFCO TOKIO General Insurance Company Limited)= The respondent/opposite party is directed:- 

1. To pay the sum insured amount of Rs.15 lacs under P.A. Cover of insured vehicle in question, to the appellants/complainants being LRs of deceased Sh.Rajesh Bhatia in equal shares with interest @9% p.a. from the date of death of deceased i.e. 08.01.2021 within a period of  30 days from the date of receipt of a certified copy of this order failing which, thereafter, it shall be liable to pay the same alongwith penal interest @12% p.a. from the date of default till realization.
2. To pay an amount of Rs.75,000/- to the appellants/complainants as compensation for causing them mental agony and harassment, as also Rs.35,000/- as cost of litigation, within a period of  30 days from the date of receipt of a certified copy of this order failing which, it shall be liable to pay the same alongwith penal interest @9% p.a. from the date of default till realization.

11.           Certified copies of this order be sent to the parties, free of charge, forthwith and one copy thereof be placed in the file of the District Commission.
12.           The appeal file be consigned to Record Room, after completion and the record of the District Commission be sent back immediately.

Pronounced

27.02.2024

 

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 

 

 

 

Rg