Chandigarh

StateCommission

A/35/2023

ICICI Lombard General Insurance Company Ltd. - Complainant(s)

Versus

Kamlesh Kumari - Opp.Party(s)

Sandeep Suri Adv.

30 Nov 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	35 of 2023
Date of Institution	:	14.02.2023
Date of Decision	:	30.11.2023

 

 

 

 

ICICI Lombard General Insurance Company Limited, Branch Office through its Branch Manager, Plot No.149, 4^th Phase-I, next to Hometel Hotel, Industrial Area, U.T., Chandigarh (Insurer of Motorcycle No.CH-01-BS-0536)

 

…Appellant/opposite party

 

V e r s u s

 

1. Kamlesh Kumari @ Kamlesh Devi (Aged 55 years) wife of Sh.Shashi Kumar, mother of Sh.Vineet Sharma (deceased),
2. Sh.Shashi Kumar (Aged 58 years) son of Sh.Narain Dutt, father of Sh.Vaneet Sharma (deceased),
3. Sh.Vikas Kumar son of Sh.Shashi Kumar, brother of Sh.Vineet Sharma (deceased) (Insured Owner of Motorcycle No.CH-01-BS-0536)

     All resident of H.No.92-A, Police Line, Sector 26, Chandigarh.

….Respondents/complainants

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MR. RAJESH K.ARYA, MEMBER

 

Present:-    Er.Sandeep Suri, Advocate for the appellant.

                   Sh.Ashwani Arora & Sh.Devinder Kumar, Advocates for the respondents

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The opposite party/appellant has assailed the order dated 09.05.2022 passed by the District Commission-II, U.T., Chandigarh (in short the District Commission), whereby the consumer complaint bearing no.245 of 2020, filed by the complainants/respondents was allowed in the following manner:-

“…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 complainants, with interest @9% p.a. from the date of death i.e. 19.8.2019 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 30 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....”

Factual scenario:-

2.           Undisputedly, complainant No.3 (Vikas Kumar/respondent no.3 in this appeal)  is the registered owner of Honda Motorcycle CD-110 bearing Regd. No.CH-01-BS-0536 (in short the vehicle), which was insured with the opposite party for the period from 28.6.2019 to 27.6.2020 vide policy (Annexure C-1). Sum assured for personal accident cover was fixed to the tune of Rs.15 lacs. It was the case of the complainants that on 19.8.2019 at about 1.30 AM Sh.Vineet Sharma (since deceased) s/o Sh.Shashi Kumar and brother of complainant no.3/registered owner of the vehicle, was driving the said vehicle and met with a fatal accident resulting into his death. It was stated that Sh.Vineet Sharma was having a valid and effective driving license to drive the vehicle in question and since the insurance policy in question covered the risk of PA Owner Driver CSI to the extent of Rs.15 lacs, as such, the complainants being  his legal heirs filed MACT Case No.611 of 2019 before the Motor Accident Claims Tribunal, Chandigarh, which was withdrawn on 30.1.2020 due to change in law by the Hon’ble Supreme Court in case titled as ‘Ramkhiladi & Anr. Vs. The United India Insurance Company Limited, 2020 ACJ 627’ 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 the opposite party for P.A. Claim under the policy in question but to no avail, which forced them to serve legal notice dated 17.3.2020  but the claim was  repudiated by the opposite party vide letter dated 5.3.2020 (Annexure C-10). Hence, consumer complaint was preferred before the District Commission by the complainants on the ground that the deceased-Sh.Vineet Sharma was unmarried therefore his mother Kamlesh Kumari @ Kamlesh Devi , father (Sh.Shashi Kumar) and brother (Sh.Vikas Kumar) are the legal heirs and entitled to file this complaint.

 

Reply filed by the opposite party:-

3.           The consumer complaint was contested by the opposite party by filing written reply wherein it was stated that as per terms and conditions of the policy in question, the insurance coverage was available only for the owner (Sh.Vikas Kumar) and not for any unnamed person. It was denied that Sh.Vineet Sharma-deceased was holding a valid driving license at the time of accident. It was stated that since as per terms & conditions of the policy in question, the coverage was only for owner driving the vehicle at that particular period of time and therefore the complainants were not entitled to any claim.

 

Rejoinder before the District Commission:-

4.           In the rejoinder filed, the complainants reiterated all the averments contained in their complaint and controverted those of the opposite party.

 

Evidence before the District Commission:-

5.           The contesting parties led evidence in support of their contentions before the District Commission.

 

Decision of the consumer complaint:-

6.           The District Commission after hearing counsel for the parties and perusing the record allowed the consumer complaint vide order dated 09.05.2022 in the manner stated above.

 

7.           Feeling aggrieved of the order impugned, this appeal has been filed by the  opposite party/appellant.

 

Application for condonation of delay in filing this appeal:-

8.           Alongwith this appeal, an application bearing no.189 of 2023 for condonation of delay of 228 days in filing this appeal has been filed by the appellant. Initially, the application for condoning the delay was filed alongwith this appeal, yet, the same was withdrawn and this fresh application was filed on 16.03.2023, wherein, it has been stated that appeal could not be filed within the stipulated period of 45 days because  though the order was received in the office of the appellant, yet, the same was inadvertently put in another case of the same name and could not be processed. This  mistake came to light when the notice was received in the execution petition filed by the complainants. Thereafter, the order was traced from the other files in the office and the same was processed for the purpose of filing an appeal.  Sanction for filing appeal was received on or about 15th October, 2022 and the draft was prepared of the statutory amount on 02.11.2022 at Mumbai. Necessary approvals were taken for filing the appeal and forwarded to the counsel for filing appeal. The applicant had issued pay order for an amount of Rs.999801/- drawn on ICICI bank towards the statutory amount to be deposited in the same matter, however, the same was inadvertently misplaced in the office of the counsel and could not be traced and a fresh pay order could not be issued without the same being surrendered by the lawyer. Subsequently on account of two deaths in the immediate family of the counsel in the month of December 22 and January, 23 the appeal could not be filed by the counsel. Thereafter, the file was not traceable as it got misplaced in the office of the counsel, which also contained original order sent by the District Commission, which resulted into delay in filing this appeal.
9.           The said application was contested by the respondents by filing reply stating therein that since no sufficient cause has been explained by the appellant for such a huge delay in filing this appeal and on the other hand, the grounds taken in the application are vague, therefore, this application deserves to be dismissed with exemplary cost.
10.           It may be stated here that though this appeal is highly time barred and  the appellant has failed to give any sufficient cause to condone the delay in filing the same, yet, for the purpose of adjudicating the important question of law involved in this case, we are condoning the said delay. Resultantly, this application stands allowed and is disposed of accordingly.

 

Submissions of the appellant:-

11.           It has been vehemently contended by counsel for the appellant that under General Regulation (GR)-36 of the India Motor Tariff (IMT), 2002, it is explained that personal accident cover shall be applicable only to the owner of the insured vehicle holding an ‘effective’ driving license. He further submitted that as per terms and conditions of the policy in question, the respondents were not entitled to any claim. According to the appellant, the District Commission failed to appreciate the evidence and law on the point and fell into a grave error in allowing the consumer complaint.

 

Submissions of the respondents:-

12.           On the other hand, counsel for the respondents submitted that the order impugned passed by the  District Commission is well reasoned based on correct appreciation of evidence and law on the point, which needs to be upheld.

 

13.           We have gone through the rival contentions of the contesting parties and have scanned the material available on record.

 

Findings of this Commission:-

14.           Undisputedly, the insured vehicle in question was the ownership of Vikas Kumar/respondent no.3. It is also an admitted fact that the deceased Vineet Sharma was real brother of the registered owner of the vehicle in question and he was driving the vehicle on the fateful day and died in an accident, yet, when claim was filed by the respondents, the same stood repudiated by the appellant vide letter dated 05.03.2020, Annexure C-10, on the ground that no personal accident coverage was taken for unnamed passenger under the policy in question.
15.           As such, now the moot question to be considered and decided is, as to whether, an insurance company can absolve its liability solely on the ground that the brother of the registered owner of the vehicle was driving the same?

                   First coming to the insurance policy in question, it may be stated here that it has been candidly admitted by the appellant in para no.13 of its written version filed before the District Commission that it has received extra premium of Rs.50/- from the insured covering personal accident for owner-driver of the vehicle in question. Perusal of contents of cover note dated 27.06.2019, Annexure C-1 reveal that against the Driver’s Clause it has been clearly mentioned as “Any person including the insured: Provided that a person driving holds an effective Driving Licence at the time of accident and is not disqualified from holding or obtaining such a licence…”. Thus, a plain reading of this clause leaves no doubt that any person/driver including the insured, if holding an effective driving licence at the time of accident was also covered for personal accident. It is clearly coming out from the record that the deceased-Sh.Vineet Sharma was holding a driving licence, Annexure C-5, having been issued by the Licensing Authority, Chandigarh, which was valid for the period from 09.06.2011 to 04.08.2022, which has not been challenged by the appellant.  It may be stated here that a similar question as to whether, the legal heirs of borrower (driver) of the vehicle insured (who died in accident) is entitled to insured amount, under personal accident cover, fell for determination before the Hon’ble National Commission in United India Insurance Co. Ltd. Versus Gyan Singh Yadav and another, Revision Petition No.558 of 2018, decided on 25.09.2018, which was answered in favour of the borrower/deceased driver. No relief was given to the Insurance Company by the Hon’ble Supreme Court in the SLP bearing No.32936 of 2018 filed by it against the order dated 25.09.2018 and the same was also decided in favour of  Gyan Singh Yadav, vide order 03.01.2019 holding that the findings which have been arrived at by the Hon’ble National Commission cannot be faulted and the claim was justifiably allowed. Even in ‘Ramkhiladi & Anr. Vs. United India Insurance Company Limited and anr., 2020 ACJ 627’, the Hon’ble Supreme Court under similar circumstances has held that since the borrower of the vehicle steps into the shoes of the owner and therefore, he or his legal representatives are entitled for personal accident cover. The ratio of law laid down by the Hon’ble Supreme Court in Ramkhiladi & Anr.  case (supra)  and the Hon’ble National Commission in  United India Insurance Co. Ltd.s case (supra) are fully applicable to the present case.

16.           As far as reliance placed by the counsel for the appellant on Oriental Insurance Co. Vs. Sudhakaran is concerned, it may be stated here that in this case, the question which fell for determination before the Hon’ble Supreme Court was with regard to the liability of the insurance company in case of death of pillion rider. The facts of the case titled as Ningamam Vs United India Insurance Company Limited (2009-4 LR 710 (SC) reliance whereupon has also been placed by the counsel for the appellant were also discussed by the Hon’ble Supreme Court in Ramkhiladi & Anr.  cases (supra).  Thus, the facts of these cases being different from the case in hand are of no help to the appellant.
17.           Under these circumstances, we are of the considered opinion that the District Commission was right in allowing the consumer complaint while holding that since Mr.Vineet Sharma (since deceased), the driver of the insured motorcycle 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 and that the rejection of the claim lodged by the respondents amounts to deficiency in rendering service.

 

Decision of this Commission:-

 

18.           In our considered opinion, the order impugned passed by the District Commission, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission and the same stands upheld. Resultantly, this appeal being devoid of merit is dismissed with no order as to cost.
19.           Certified Copies of this order be sent to the parties, free of charge, forthwith
20.           The appeal file be consigned to Record Room, after completion and record of the District Commission be sent back immediately.

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (RAJESH K.ARYA)

MEMBER

Rg.