Chandigarh

DF-II

CC/313/2023

DEEPMALA - Complainant(s)

Versus

NATIONAL INSURANCE COMPANY LTD. - Opp.Party(s)

HARSH NAGRA

14 Dec 2023

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	313 of 2023
Date  of  Institution	:	03.06.2023
Date   of   Decision	:	14.12.2023

 

 

 

 

 

M/s Deepmala d/o late Sh.Sumer Singh r/o H.No.193/1, Sector 52, Village Kajheri, Chandigarh

 

2^nd Address: # 3168, LIG Quarters, Sector 52, Chandigarh

                              …...Complainant

                                               Versus

1.  M/s National Insurance Company Limited, through its Managing Director, Regd. Office: 3 Middleton Street, Calcutta 700071.

 

2.  M/s National Insurance Company Limited, through its Branch Manager, SCO 305-306, Sector 35, Chandigarh

    ….. Opposite Parties

 

 

BEFORE: MR.AMRINDER SINGH SIDHU,      PRESIDENT

                 MR.B.M.SHARMA,                       MEMBER

         

Present:-    

Sh.Harsh Nagra, Adv. with complainant in person.

None for the OPs.

 

 

ORDER BY AMRINDER SINGH SIDHU, M.A (Eng.),LLM,PRESIDENT

 

1.     The complainant has filed present complaint pleading that she is owner of Honda Activa scooter bearing registration No.CH-01-BG-7977 which was insured with OP No.2 for the period  from 30.09.2020 till 29.09.2021 vide insurance policy (Annexure C-1). She had also paid Rs.295/- for personal accident cover in the said policy. The said vehicle was being used by the complainant and her father namely Sh.Sumer Singh for doing the local works in the tricity.  On 14.12.2020, her father was going to his home from factory on the said vehicle and when he reached Petrol Pump near Axis Bank at Derabassi, the vehicle was slipped and he fell down and become unconscious. He was taken to GMCH, Sector 32, Chandigarh where he was admitted on 14.12.2020 and discharged on 20.12.2020. After discharge, her father again complained about uneasiness and these episodes started repeating, therefore, he was again admitted on 24.01.2021 where he died on 24.01.2021 at 5:50PM.  PMR (Annexure C-4) on the dead body was conducted at the GMCH, Sector 32, Chandigarh and DDR was also registered with the police regarding the said accident (Annexure C-6).  Subsequently, the complainant submitted the claim form with the OPs but they did not settle the claim on one or the other ground. Hence, the present complaint has been preferred with a prayer to direct the OPs to pay Rs.15 lacs under the policy along with interest, apart from compensation and litigation.
2.     The OPs have filed written version and admitted that the vehicle in question was insured under the policy in question. However, it has been stated that there is no privity of contract between the deceased father of the complainant and the OPs. The OPs are only liable to indemnify the complainant in whose name the policy was issued and not her family members.  It has further been stated that the PA for the owner driver provides coverage only for the registered owner while driving the insured vehicle that’s why it is mentioned as PA for owner driver of the vehicle.   It has further been stated that the accident took place on 14.12.2020 and thereafter the claim was intimated after a delay of more than 2 years with a mala fide intention on 27.03.2023 through registered post which is against the terms and conditions of the policy as the claim was to be intimated immediate after the accident or within a reasonable period and as such the complainant has violated the condition No.1 of the insurance policy by not intimating the company well within time.  Denying all other allegations, it is prayed that the complaint be dismissed.
3.     Parties led evidence in support of their contentions.
4.     We have heard the Counsel for the complainant and have gone through the entire record including written arguments.
5.     The complainant is 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 not 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.

6.     After the death of Sh.Sumer Singh, his legal heirs, are consumers as well as complainant per Section 2(5)(vi) of The Consumer Protection Act, 2019 and therefore, they are entitled to file & get claim, if any.  The said section is reproduced as under:-

                    2 (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 complainant falls under the definition of ‘consumer’ being the legal heir of Sh.Sumer Singh, deceased, and thus, she is entitled to file the present complaint as well as to get the claim, if any.

7.     Deceased Sh.Sumer Singh son of Sh.Kamal Singh, has certainly availed/used the insured vehicle with the approval of first party/person i.e. Ms.Deepmala, owner of vehicle.  
8.     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.Sumer Singh, deceased, when the scooter got slipped and the deceased suffered injuries and he died due to said accident and DDR No.022 dated 25.01.2021 to this effect was lodged with the Police Station Dera Bassi and the PMR with regard to the deceased is Annexure C-4. The OPs denied the claim of Personal Accident lodged by complainant stating that Ms.Deepmala is owner of the vehicle and driver Sumer Singh was driving the vehicle at the time of accident and died in the said accident, which is not covered in the said scope of P.A. owner-driver coverage.
9.     The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in R.P. No.558 of 2018 – United India Insurance Co. Ltd. vs. Gyan Singh Yadav & Anr.decided on 25.09.2018, has held that:-

         The term 'owner - driver' is in itself ambiguous and unclear. In case it was meant to construe only the owner-cum-driver herself driving, the same should have been unambiguously and clearly stated in the insurance policy. As would appear to a reasonable person, the proposition intended to be conveyed and understood was that the owner as well as the driver will be covered under the policy (and especially if the registered owner buying that policy was a lady and the subject vehicle was a motorcycle and the area in which the lady resided was a district like Mainpuri in the Chambal region of Uttar Pradesh).

 

10.     The Hon’ble Punjab & Haryana High Court in CWP No.6472 of 2014 (O&M) – M/s IFFCO TOKIO General Insurance Co. Ltd., vs. Smt.Kavita and Others, decided on 27.2.2020 has held that :-

In my considered opinion, the claimants in this case are entitled to the personal accident cover for which the premium was admittedly deposited. Respondents No. 1 to 3 are the dependent widow, minor children of the deceased – Parmod. They chose to approach the learned Permanent Lok Adalat on 13.05.2013 after dismissal of their claim petition under Section 163A of the Act. In the peculiar facts and circumstances of this case, I am not inclined to set aside the impugned award on the ground that the claimant's entitlement to the fixed amount (PA cover) as per the policy could have been agitated only in the said proceedings under the Motor Vehicles Act and even though the same has not been adjudicated therein, the claimants are estopped from agitating for the same. At the same time, I find merit in the argument raised by learned counsel for the petitioner for reduction of the rate of interest, keeping in view the prevalent rate of interest available. The same is, thus, reduced to 7.5% per annum from 9% per annum.

11.     Further 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/her legal representatives are entitled for personal accident cover. Thus, Sh.Sumer Singh (since deceased), the driver of the insured vehicle 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 complainant, being the legal heir of Sh.Sumer Singh (deceased), amounts to deficiency in service.   The complainant is held entitled to get the claim.
12.     In view of the above discussion and findings, the deficiency in service on the part of the OPs stands proved. Therefore, the present complaint stands allowed against OPs with direction to pay a sum insured amount of Rs.15 lacs under P.A.Cover of insured vehicle in question, to the complainant being LR of deceased Sh.Sumer Singh with interest @ 7.5% p.a. from the date of death of deceased i.e. 24.01.2021 till date of actual realization. 
13.     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.
14.     Pending application, if any, stands disposed of accordingly.
15.     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced in open Commission.

14.12.2023                             

Sd/-

(AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER