Haryana

Karnal

CC/350/2021

Rajni Devi - Complainant(s)

Versus

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

Ram Lal Bilam

26 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 350 of 2021

                                                        Date of instt. 26.07.2021

                                                        Date of Decision: 26.02.2024

 

1.     Rajni Devi wife of late Shri Sumit Kumar;

2.     Gevin

3.     Jivika minor sons of late Shri Sumit Kumar, through their mother Smt.Rajni Devi being their natural guardian and next friend.

All residents of Village Sharwan Majra, Tehsil Indri, District Karnal.

 

                                               …….Complainants.

                                              Versus

 

Iffco Tokio General Insurance Company Limited, registered office Iffco Sadan, C-1, District Centre, Saket, New Delhi 110017, through its branch office C/o Hafed District Office, SCO No.19-20, Part-I, Ground Floor, Karnal, through its Branch Manager.

                                                                      …..Opposite Party

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before     Shri Jaswant Singh……President.

                Shri Vineet Kaushik……Member     

        Dr. Suman Singh…….Member

                   

Argued by: Shri Ram Lal Bilan, counsel for complainant

                   Shri Gaurav Gupta, counsel for the OP.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainants No.2 & 3 are minors and are living under the care and custody of their mother, who has got no adverse interest to those of minors and as such, the present complaint is being filed by complainants No.2 & 3 through their mother i.e. complainant No.1 being their natural guardian and next friend. Husband of complainant No.1 and father of complainants No.2 & 3 was registered owner of a motorcycle bearing registration No.HR75C-1051 and he got insured the said motorcycle with the OP which was valid from 25.09.2019 to 24.09.2024 by paying a premium of Rs.3385/- to the OP. While driving the said motorcycle, Shri Sumit Kumar met with an accident on 28.02.2020 being hit by an unknown vehicle and got admitted in CHC Indri and thereafter referred to KCGMCH, Karnal from where he was referred to PGI Chandigarh, during this period, he remained unconscious and father of Sumit got registered an FIR No.101 dated 07.03.2020 under Sections 279, 337 IPC, P.S. Indri. Thereafter, Sumit was brought to his home as he was already in Coma and later on, he succumbed to the injuries on 02.08.2020 and on his death, Section 304A of IPC was added in the said FIR and PMR was conducted in Civil Hospital, Karnal, on 02.08.2020. The father of deceased informed the OP by making an application dated 01.09.2020 regarding the said facts and he also requested the OP to inform him regarding the required documents by the OP within 15 days and also to release the claim amount. Thereafter, vide letter No.KA/20/ 066/IFFCO dated 31.10.2020, the OP demanded the following documents from Shri Angrej Singh:-

i)      Copy of FIR;

ii)     RC of motor cycle

iii)    Inquest report

iv)    Charge sheet/untraced report;

v)     Superdari of M/C

vi)    Affidavit

viii)   Legal heirs

viii)   Indemnity bond

ix)    Treatment documents

x)     Copy of insurance policy.

 

                All the abovesaid documents have been submitted with Karnal Associates, Investigating and Detective Agency, Karnal of the OP. However, when inspite of submitting all the said documents, Angrej Singh went to the office of said agency to enquire about the claim, the officials asked to submit DL of deceased. Shri Angrej Singh father of the deceased has specifically told the OP that at the time of accident his son was carrying DL in his purse, but due to impact, the purse containing his DL and other documents got lost and due to this reason, he is unable to provide the DL. Thereafter, vide letter dated 17.03.2021, the OP again demanded the DL of deceased from complainant No.1 and in reply, the same reply was given to them. Thereafter, on 23.05.2021, the OP informed the complainant No.1 that we regret our inability to consider the said claim and are closing the said file as closed due to non-compliance of documents and relevant policy terms and condition. The repudiation of claim by the OP is totally illegal and deficiency in service on the part of OP. Hence, the present complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; concealment of true and material facts; cause of action; estoppels; jurisdiction, etc. On merits, it is pleaded that complainants concocted false story of loss of driving licence of insured in the accident in question. Prior filing the present complaint, the complainants at no point of time have conveyed to the investigator or the respondent insurance company regarding loss of driving licence of the insured despite of repeated letters by the company for submission of driving licence. Hence, the averment made by the complainants for loss of driving licence is false and afterthought. Even if the averment of complainant taken as true, it is responsibility of the complainants to prove that owner-driver was in fact in possession of a valid and effective driving licence to drive the insured vehicle on the date of accident on 28.02.2020. Had the deceased driver possessed a valid driving licence on the fateful date of accident, the complainant could easily have obtained its particulars from the concerned Transport Authority even if it is assumed that the driving licence of the deceased was lost in the accident. The insurance policy is contractual in nature and the claims arising therein are strictly subject to the terms and conditions forming part of the policy. In the situation of not having a valid driving licence by the driver or failure of complainants to prove that the driver of the vehicle in fact was in possession of a valid and effective driving licence to drive such class of vehicle at the time of accident, the claim of complainants is not admissible under the purview of insurance policy. 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 complainant No.1 has tendered into evidence her affidavit of Rajni Ex.CW1/A, copy of Aadhar Card of Rajni Ex.C1, copy of Aadhar card of Gevin Ex.C2, copy of Aadhar Card of Jivika Ex.C3, copy of FIR Ex.C4, copy of PMR of Sumit Ex.C5, copy of report U/s 173 Cr.P.C Ex.C6, copy of superdari order 22.10.2020 Ex.C7, copy of insurance policy Ex.C8, copy of intimation letter dated 01.09.2020 Ex.C9, copies of postal receipts Ex.C10 & Ex.C11, copy of letter dated 31.10.2020 Ex.C12, copy of indemnity bond Ex.C13, copy of affidavit of Rajni Devi Ex.C14, copy of letter dated 17.03.2021 Ex.C15, copy of reply Ex.C16, copy of postal receipt Ex.C17, copy of closing of claim letter Ex.C18, copy of RC and closed the evidence on 06.06.2022.

5.             Learned counsel for the OP has tendered into evidence affidavit of Ms.Gurvinder Kaur Ex.RW1/A, copy of Investigation report Ex.OP1, copy of letter dated 09.02.2021 Ex.OP2, copy of letter dated 01.03.2021 Ex.OP3, copy of letter dated 17.03.2021 Ex.OP4, copy of letter dated 23.06.2021 Ex.OP5 and copy of policy terms and conditions Ex.OP6 and closed the evidence on 05.06.2023 by suffering separate statement.

6.             We have heard the learned counsel for the parties and have gone through the record available on the file carefully.

7.             Learned counsel for the complainants, while reiterating the contents of complaint, has vehemently argued that husband of complainant No.1 namely Sumit Kumar met with an accident on 28.02.2020 being hit by an unknown vehicle. An FIR No.101 dated 07.03.2020 under Sections 279, 337 IPC, P.S. Indri was got registered by the father of Sumit Kumar. Later on, Sumit Kumar succumbed to the injuries on 02.08.2020 and PMR was conducted in Civil Hospital, Karnal, on 02.08.2020. Thereafter, personal accident claim was lodged with the OP. The officials of the OP demanded the driving licence of the deceased but said driving licence had been lost at the time of accident. This fact has been already disclosed to the OP but despite that, the OP closed the claim on the ground of non-submission of driving licence. The repudiation of claim by the OP is totally illegal and deficiency in service on the part of OP 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 prior filing the present complaint, the complainants at no point of time have conveyed to the investigator or the respondent insurance company regarding loss of driving licence of the insured despite of repeated letters by the company for submission of driving licence. Hence, the averment made by the complainants for loss of driving licence is false and afterthought. In the situation of not having a valid driving licence by the driver or failure of complainants to prove that the driver of the vehicle in fact was in possession of a valid and effective driving licence to drive such class of vehicle at the time of accident, the claim of complainants is not admissible under the purview of insurance policy. There is no deficiency in service and unfair trade practice on the part of the OP and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, the husband of complainant No.1 was the registered owner of motorcycle bearing registration no.HR75C-1051 and said vehicle was insured with the OP from the period of 25.09.2019 to 24.09.2024. It is also admitted that the policy was package/comprehensive including personal accident claim of Rs.15 lakhs.

11.           The claim of the complainant has been closed by the OP, vide repudiation letter Ex.C18/OP5 dated 23.06.2021 on the following grounds:-

“Therefore, we regret our inability to consider the said claim and are closing the said file as closed due to non-compliance of documents and relevant policy terms and condition.

Condition 1 Notice shall be given in writing to the Company immediately upon the occurrence of any accident loss or damage in the event of any claim and thereafter, the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this Policy. In case of theft or criminal act which may be the subject of a claim under this Policy the insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender.”

 

13.           The OP had demanded driving licence of the deceased and in this regard, they wrote a letter dated 17.03.2021 Ex.C15 to the complainant No.1 and in her reply, Ex.C16, she mentioned that the purse containing the driving licence and other documents belonging to Sumit Kumar have been lost at the time of accident. Accident took place on 28.02.2020 and insured died on 02.08.2020 after a gap of more than five months. The complainant No.1 is an illiterate lady and complainants No.2 & 3 are minors, so they do not have any knowledge from where the deceased had got issued his driving licence and also they did not know the procedure of obtaining verification of driving licence. Furthermore, the possibility of missing of wallet containing DL and other documents of deceased at the time of accident, cannot be ruled out. The OP has not placed on record any document that the deceased was not having valid driving licence at the time of accident.

14.           For the sake of gravity, if it is presumed that complainants have violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we can relied upon the case laws cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

15.           In view of the above observations made in the above titled case laws, the claim of the complainants should be decided on non-standard basis.

15.           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”.

16.           Keeping in view the ratio of the law laid down in the abovesaid authorities and the facts and circumstances of the present complaint, we are of the considered view that the act of the OP amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainants in toto. Hence, complainants are entitled to get 75% only of the admissible claim on non-standard basis.

17.           During the course of investigation by the investigator of OP, the father Angrej Singh and mother Kamlesh of deceased Sumit Kumar, in their statements (attached with the investigation report Ex.OP1) have specifically stated that they have no objection if the claim amount is to be given to complainants.

18.           As per insurance policy of the vehicle Ex.C8, the sum insured of personal accident is Rs.15.00 lacs and this fact has not been denied by the OP. Hence the complainants are entitled for Rs.11,25,000/- i.e. 75% of the insured amount alongwith interest, compensation and litigation expenses etc.

19.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.11,25,000/- (Rs.Eleven lacs twenty five thousand only) to the complainants alongwith interest @ 9% per annum from the date of closing of claim i.e. 23.06.2021, till its realization in equal share. We further direct the OP to pay Rs.25,000/- to the complainants on account of mental agony and harassment suffered by them and Rs.11,000/- for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. It is made clear that the share of the minors be deposited in the shape of FDRs in a Nationalized Bank during the period the minors attained the age of majority. Interest on the amount during the period the minors attained the age of majority, shall be paid to their mother i.e. complainant no.1 at quarterly intervals of a year for their maintenance and support. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced

Dated:26.02.2024    

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Suman Singh)

                     Member                       Member