Chandigarh

DF-II

CC/246/2020

Smt. Musarrat Jahan - Complainant(s)

Versus

IFFCO TOKIO General Insurance Company Limited - Opp.Party(s)

Adv. Ashwani Arora

28 Sep 2022

ORDER

 

 DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	246 of 2020
Date  of  Institution	:	19.06.2020
Date   of   Decision	:	28.09.2022

 

 

 

 

 

1]  Smt.Musarrat Jahan (Aged 49 years) wd/o Sh.Mashooq Alibeg deceased.

2]  Zabi Parveen (Aged 32 years) unmarried daughter of Sh.Mashooq Alibeg deceased (Insured owner of Activa No.CH-01-BK-9648).

3]  Nasreen Parveen (Aged 30 years) unmarried daughter of Sh.Mashooq Alibeg deceased

    All r/o H.No.2320/3, Sector 45-C, Chandigarh

4]  Smt.Shaheen Ali (Aged 34 years) wife of Sh.Asaf Ali, married daughter of Sh.Mashooq Alibeg deceased resident of E-205, Gali No.3, Paschimi Vinod Nagar, Shakarpur Baramod, East Delhi-110092.

             …..Complainants

 

Versus

 

IFFCO TOKIO General Insurance Company Limited, Branch Office through its Branch Manger,  through its Branch Manager, Plot No.2-B & C, Madhya Marg, Sector 28, Chandigarh. (Insurer of Activa No.CH-01-BK-9648)

 

    ….. Opposite Party

 

 

BEFORE:  SMT.PRITI MALHOTRA        PRESIDING MEMBER 

                    SH.B.M.SHARMA              MEMBER

                               

For Complainant : Sh.Ashwni Arora & Sh.Devinder Kumar, Advocates

For OP          : Sh.Krishan Kant, Advocate Proxy for            

                   Sh.J.P.Nahar, Advocate for OP.  

 

PER PRITI MALHOTRA, PRESIDING MEMBER

         Concisely put, the complainant No.2 is the owner of Honda Activa 3G bearing Regd. No.CH-01-BK-9648, which was insured with OP Company for the period from 30.11.2018 to 29.11.2019 (Ann.C-1 & C-2).  It is averred that on 08.05.2019 at about 5.30 PM Sh.Mashooq Alibeg (since deceased) s/o Sh.Masrur Alibeg, was returning from his factory from Saidpura to his house at Sector 45-C, Chandigarh while driving the Scooter bearing Regd. No.CH-01-BK-9648 and when he reached Railway Crossing Bridge, Derabassi, his scooter was struck by an unkown vehicle which sped away after the accident.  As a result of this accident, Sh.Mashooq Alibeg fell on the road and received serious injuries and died. It is also averred that he was taken to Civil Hospital, Derabassi where post mortem was conducted.  FIR No.124 dated 09.05.2019 under Sections 279/304-A/427 IPC was registered in this regard.

         It is submitted that Sh.Mashooq Alibeg was having valid and effective driving license to drive the scooter in question (Ann.C-5).  It is also submitted that the insurance Policy in question covers the risk of PA Owner Driver CSI to the extent of Rs.15 lacs and OP Company has also charged premium thereof.  It is further submitted that Sh.Mashooq Alibeg (since deceased) has left behind the complainants as his LRs. It is further submitted that the deceased was a borrower of the scooter and had stepped into the shoes of the owner as per the principle of law settled by Hon’ble Supreme Court in case titled as ‘Ramkhiladi & Anr. Vs. The United India Insurance Company Limited, 2020 ACJ 627 wherein it was held that when a borrower steps into the shoes of the owner then his legal heirs are entitled to the coverage given under the head of P.A. Cover.    Thereafter, the complainants lodged claim by filing an application with OP for P.A. Claim under the policy in question followed by legal notice dated 12.3.2020  but the same was declined by OP Company vide letter dated 12.3.2020 (Ann.C-9 & C-10). Hence, this complaint has been preferred.

 

2]       In its written statement, the OP while admitting the factual matrix of the case has stated that the compulsory PA cover  available under the insurance policy is only meant for the registered owner of the vehicle and insured named in the policy as well who is Zabi Parveen and not the deceased driver Sh.Mashooq Alibeg.  It has further been stated that the insurance contract is a bilateral contract between the insurer and insured and parties to the contract are bound by its terms and conditions. It has further been stated that the complainants are not consumers as defined under the provisions of the Consumer Protection Act, 2019. It is stated that the complainants/claims are not entitled to any relief/claim under the policy. Denying other allegations, the OP has prayed for dismissal of the complaint.

3]       Rejoinder has also been filed by the complainants controverting the assertions made by OP.

4]       Parties led evidence in support of their contentions.

5]       We have heard the ld.Counsel for the parties and have perused the entire record. 

 

6]       The complainants are very well covered under the definition of ‘consumer’.  Section 2(7)(i)(ii) of The Consumer Protection Act, 2019 stipulates as under:-

"consumer" means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does wnot include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

 

 

7]             After the death of Sh.Mashooq Alibeg, his legal heirs, are consumers as well as complainants per Section 2(5)(iv) of The Consumer Protection Act, 2019 and therefore, they are entitled to file & get claim, if any.  The said section is reproduced as under:-

    (5) "complainant" means—

(i) xxxxx

 

 (vi) in case of death of a consumer, his legal heir or legal representative;

 

                        From the above, it is clear that the complainants falls under the definition of ‘consumer’ being the legal heirs of Sh.Mashooq Alibeg, deceased, and thus, they are entitled to file the present complaint as well as to get the claim, if any.

 

8]       Deceased Sh.Mashooq Alibeg, father of Ms.Zabi Parveen, owner of insured vehicle in question, has certainly availed/used the insured vehicle with the approval of first party/person i.e. Ms.Zabi Parveen, owner of vehicle.  

 

9]       It is undisputed that the vehicle in question, insured with OP Company is having ‘Personal Accident Cover’ for owner-driver to the tune of Rs.15 lacs, was driven by Sh.Mashooq Alibeg, deceased, when it met with an accident and he was declared brought dead when taken to Civil Hospital, Derabassi, as is also clear from FIR NO.124 dated 09.05.2019 under Sections 279/304-A/427 IPC at Police Station Derabassi & Post Mortem Report (Ann.C-3 & c-4). The OP denied the claim of Personal Accident lodged by complainants stating that policy was issued only to Ms.Zabi Parveen whereas the claim has been lodged in the name of Sh.Mashooq Alibeg.

 

10]      The controversy, as is involved in the present case, has been settled by the Hon’ble Supreme Court in latest judgment in case of ‘Ramkhiladi & Anr. Vs. The United India Insurance Company Limited, 2020 ACJ 627’ by the Hon’ble Supreme Court of India, to the effect that the borrower of the vehicle steps into the shoes of the owner and therefore, the borrower of the vehicle or his legal representatives are entitled for personal accident cover. Thus, Sh.Mashooq Alibeg (since deceased), the driver of the insured scooter in question steps into the shoes of the owner of the vehicle and as such entitled to get Personal Accident cover (P.A. Cover) due under the policy.  Hence, the rejection of the claim lodged by the complainants, being the legal heirs of Sh.Mashooq Alibeg (deceased), amounts to deficiency in service.   The complainants are held entitled to get the claim.

 

11]      Taking into consideration the above discussion and findings, the deficiency in service on the part of Opposite Party stands proved. Therefore, the 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 LRs of Sh.Mashooq Alibeg deceased in equal shares with interest @9% p.a. from the date of death i.e. 08.05.2019 till realization.  The OP is also directed to pay a compository amount of Rs.50,000/- towards compensation and  litigation expenses to the complainant.

         This order shall be complied with by the Opposite Party within a period of 45 days from the date of receipt of its certified copy, failing which it shall be liable to pay additional compensation cost of Rs.25000/- apart from above relief.

         The above awarded amount shall be paid to the complainants in equal share.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.   

Announced

28^th Sept. 2022                                                                      

Sd/-

 (PRITI MALHOTRA)

PRESIDING MEMBER

Sd/-

(B.M.SHARMA)

MEMBER