Before the District Consumer Disputes Redressal Commission, Rohtak.

                                                                             Complaint No. : 372

                                                                             Instituted on     : 10.08.2018

                                                                             Decided on       : 16.04.2024.

1. Smt. Roshni age 47 years,  w/o Late Jai Kanwar,

2. Soni d/o Late Jai Kanwar

3. Rekha d/o Late Jai Kanwar

4. Versha minor d/o Late Jai Kanwar daughter,

5. Ashish @ Naseeb minor son of Late Jai Kanwar

All minors through their mother Smt. Roshni as next friend and legal guardian,

All residents of Village Madina Pana GindranTeh. Meham District Rohtak

                                                                             .......................Complainants.

                                                Vs.

IFFCO TOKIO General Insurance Co. Ltd. Through its Manager, IffcoSadan, C-1 District Centre, Saket, New Delhi.

                                                                            .......……….Opposite party.

          COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.

BEFORE:  SH.NAGENDER SINGH KADIAN, PRESIDENT.

                   DR. TRIPTI PANNU, MEMBER.

                   DR. VIJENDER SINGH, MEMBER

Present:       Sh. Manjeet Yadav, Advocate for complainant.

                   Sh. PuneetChahal, Advocate for opposite party

                                                ORDER

TRIPTI PANNU, MEMBER:

1.                Brief facts of the case as per complainant are that Jai Kanwar  s/o DayaRam  was owner of motorcycle no.HR-15B-7929 and the said motorcycle was insured vide policy no.1-4EU1BSJ with the respondent for a period from 28.02.2016to 27.02.2017. The said Jai Kanwar paid the premium of Rs.50/-against the personal accident cover for owner/driver. The said insured motorcycle met with an accident on 03.01.2017 Near Chowk of R.K.P.School of Madina District Rohtak on National highway No.10  while driving the same and in the said accident Jai Kanwar succumbed to the injuries and motorcycle was also damaged badly i.e. total loss. The matter was reported to the police and FIR No.0009 dated 04.01.2017 was registered in P.S. Meham District Rohtak and respondent was duly informed by the complainants. All the documents were also submitted by the complainants with the opposite party.  Complainants being the only legal heirs of Jai Kanwar are entitled for an amount of Rs.100000/- against the death claim and Rs.34000/- against the damages of motorcycle.  Complainants made a claim before the opposite party  but despite repeated requests of the complainants, claim amount has not been received by them.  However, the claim has been repudiated by the opposite party on the ground that the vehicle was carrying one person more than the registered sitting capacity of the insured vehicle. The  act of opposite party is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite party may kindly be directed to pay the claim amount of Rs.100000/- against the death of Jai Kanwar and Rs.34000/- towards the damages against the insured vehicle  and also to pay Rs.50000/- on account of mental agony & harassment  along with interest @18% p.a. from the date of accident  till its  actual realization with costs.

2.                After registration of complaint, notice was issued to the opposite party. Opposite party in its reply has submitted that on receipt of intimation of loss to the motorcycle no.HR-15B-7929  company deputed Mr. Hemant Kumаr Sharma, Surveyor. As per physical verification of the vehicle, surveyor assessed the loss on net of salvage basis. Repair liability was Rs.35045/- which is exceeding 75% of IDV, hence loss is assessed on Net of salvage basis payable subject to the terms and conditions of the policy and provision of the Motor vehicle Act.  Surveyor mentioned in his report that three person were travelling on the bike, hence claim is not payable. As regardsthe personal accident claim no intimation and papers were given to the company. Hence no claim was registered with regard to personal accident. Insurance company has rightly repudiated the claim as three persons were travelling on the motorcycle against the capacity of two. This was a breach of provision of Motor Vehicle act as well as terms and conditions of the insurance policy. Company has informed vide registered AD letter dated 24.10.2017 regarding the repudiation of damage claim.  Hence there is no deficiency in service on the part of the respondent. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.

3.                Ld. counsel for the complainant in his evidence has tendered his affidavit Ex.C1,documents Ex.C2 to Ex.C12 and closed his evidence on dated 20.10.2023. Learned counsel for opposite party has tendered affidavit Ex.OP1/A, document Ex.OP1/1 to Ex.OP1/5and closed his evidence on dated 20.10.2023.

 4.               We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.

5.                In the present case, claim of the complainant has been repudiated on the ground that  three passengers were travelling on the motorcycle at the martial time of accident. Whereas as per registration certificate seating capacity of the vehicle is only 2 passengers so claim has been repudiated after considering the Motor Vehicle Act as well as terms and conditions of the policy.We have perused the documents placed on record by both the parties. As per our opinion Jai Kanwars/o Daya Ram the registered owner of the vehicle died in a road side accident and regarding this accident FIR No.0009 dated 04.01.2017 was got registered in P.S.Meham. Through this complaint the legal heirs of the deceased demanded an amount of Rs.1 lac on account of personal accident and Rs.34000/- on account of damages of insured vehicle bearing no.HR15B7929.  As per our opinion the accident caused by the negligence of car driver having registration no.HR-99-WB(T0401) . Regarding this accident 3 claim petitions have been filed before the Ld. Ms.RituY.K.Behl, Motor Accident claim tribunal, Rohtak and all the three petitions have been allowed and order was passes against the offending vehicle i.e. car no.HR-99-WB(T0401). As per our opinion the accident was caused by the other vehicle i.e. car and the driver of motorcycle was not at fault at the time of accident. Moreover, as per document Ex.OP1 Mr. Jai Kanwarwas driving the vehicle and he was having a valid and effective driving licence to drive the vehicle in question. In the present case the accident of insured vehicle/motorcycle is proved and the death of deceased is covered under personal accident claim. Hence the negligence or the seating capacity does not matter for considering the personal accident claim. Hence the legal heirs of the deceased are entitled for the  personal accident claim of Rs.100000/-.  Legal heirs of deceased have also demanded an amount of Rs.34000/- on account of  damages of motorcycle. But when we decide the OD claim then in this case, it matters that how many passengers were travelling in the vehicle. In this case as per R.C. the seating capacity of the vehicle is 2 passengers whereas at the material time of accident, 3 persons were travelling in the vehicle which is proved from the copy of FIR  Ex.C9. Hence there is violation of terms and conditions of the M.V.Act. But for this violation, whole claim cannot be repudiated. In this regard we have placed reliance upon the judgment of Hon’ble Supreme Court of India of (2010) 4 SCC 536   titled as AmlenduSahoo Vs. Oriental Insurance Company Limited, whereby Hon’ble Apex Court has held that: “Even if there is a breach of any clause, the claim could not have been repudiated in toto and 75% of the claim as admissible amount, on non-standard basis is allowed”. The law cited above is fully applicable on the facts and circumstances of the case. As such the L.Rs of the deceased are entitled for the claim of 75% on non-standard basis on account of OD Claim i.e. Rs.25500/-(Rs.34000/- less 25%). Hence the complainants are entitled for an  amount of Rs.100000/-  as personal accident claim and  Rs.25500/- as OD claim.

6.                In view of the facts and circumstances of the case, we hereby allow the complaintand direct the opposite party to paythe amount of P.A. Claim of Rs.100000/-(Rupees one lac only) in equal share to the L.Rs of deceased i.e. complainant no.1 to 5 alongwith interest @ 9% p.a. from the date of filing the present complaint  i.e. 10.08.2018 till its realisation. However the amount of OD claim  i.e. Rs.25500/-(Rupees twenty five thousand five hundred only) alongwithinterest @ 9% p.a. from the date of filing the present complaint  i.e. 10.08.2018 till its realisationalongwithRs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and 5000/-(Rupees five thousand only) as litigation expensesshall be paid to the complainant No.1. Order shall be complied within one month from the date of decision. The amount awarded to complainant no.4 &5 will be deposited in any nationalized bank in the shape of FDR(if they are still minor) and will be disbursed to them on attaining the age of majority.

7.                Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.

Announced in open court:

16.04.2024.

                                                          ........................................................

                                                          Nagender Singh Kadian, President

                                                          ..........................................

                                                          TriptiPannu, Member.

                                                          ……………………………….

                                                          Vijender Singh, Member