PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Complainant purchased a Private Motor Package Policy known as Comprehensive Car Policy from Opposite Party for his Maruti Motor Car, bearing No.MH-06-C-7802 bearing Policy No.112500/31/03/18238 for the period 21/01/04 to 20/01/05. The Complainant as per RC/TC Book is having seating capacity of 4 passengers plus driver i.e. 5. The Complainant has produced photo copy of the aforesaid insurance policy taken for his car and submitted that Opposite Party has charged premium of Rs.500/- for granting Personal Accident up to Rs.2 Lacs each, to 5 unnamed passengers under endorsement titled as “PA cover to unnamed passengers other than insured and the paid driver and cleaners.” It is submitted that besides aforesaid premium, the Opposite Party had charged separate premium for the insurance cover given to his car. The Complainant has produced photo copy of insurance policy alongwith complaint at Exh.‘A’. It appears from the photo copy of insurance policy that IDV of Complainant’s car is stated as Rs.50,000/- and Opposite Party has given PA to unnamed passengers number 5, Amount Rs.2 Lacs and compulsory PA to owner – driver amount Rs.2 Lacs and for that purpose separate premium was charged.
2) According to the Complainant on 07/05/04, his son Rajesh Sheth, aged about 24 years was driving the said vehicle. Rajesh had valid driving license. Unfortunately Rajesh met with a fatal accident near Hanging Garden, Mumbai, and died on the spot due to the injuries sustained.
3) On 10/05/04, the Complainant informed the Opposite Party about the accident and requested for claim form for lodging a PA claim for Rs.2 Lacs under “PA cover to unnamed passengers other than insured and the paid driver and cleaner”. For the death of his son, Rajesh, the Complainant submitted claim form to the Opposite Party on 15/05/04. The Complainant alongwith claim form submitted requisite case papers like Police Panchanama, Post Mortem Report, Chemical Analysis Report of blooding sample of the deceased, etc. In an around the last two week of June, 2004, the Administrative Officer of Divisional Office of the Opposite Party orally informed him that since deceased was neither a passenger, nor a owner-driver nor a paid-driver, a decision had taken before MRO –I, to repudiate his PA claim.
4) Aggrieved by the decision of repudiation of claim the Complainant wrote a letter dtd.28/06/04 to Chief Manager, Motor Technical Department, Head Office of Opposite Party and requested to reconsider/review their decision. On 20/07/04, the Complainant received a letter by Post, dtd.15/07/04 from the Opposite Party in which it was informed to the Complainant that they have taken up his grievance with the Divisional Office and assured that they would revert back to the Complainant upon hearing from Divisional Office. Thereafter, the Complainant received a written repudiation letter dtd.09/08/04 from the Opposite Party in which it is stated “Claimant – Mr. Rajesh Sheth, son of the owner of the vehicle, Mr. Girishkumar Sheth who was driving the vehicle at the time of accident, is neither owner driver nor paid driver. Hence, the claim falls out of scope of policy and is not payable.”
5) On the same day the Complainant wrote a letter dtd.09/08/04 to the Opposite Party and requested to reconsider his claim. Dy. Manager, MRO-I, of Opposite Party by letter dtd.04/09/04, informed the Complainant that they had taken up his grievance with their Division Office. However, thereafter nothing was heard from the Opposite Party for a long time.
6) The Complainant is a senior citizen. Opposite Party kept running the Complainant from pillar to post, meeting several senior officers of Opposite Party for redressal of his grievance, but of no avail.
7) Thereafter, on 06/10/04, the Complainant lodged complaint before Insurance Ombudsman. After hearing both the parties on 17/08/05, the Insurance Ombudsman passed his award dtd.28/11/05 and thereby approved the decision of Opposite Party of repudiation of claim. Being aggrieved by the Insurance Ombudsman’s above said award, the Complainant filed Writ Petition No.1214/2006 before the Hon’ble Bombay High Court on 24/04/06. In the said matter Regional Manager- Mr. K. Ravishankar of Opposite Party filed an affidavit-in-reply. The Hon’ble Bombay High Court was pleased to dispose of the Complainant’s Writ Petition vide order dtd.07/07/06 for want of maintainability. It is submitted by the Complainant that Private Car Package Policy issued by the general insurer in India is governed by Indian Motor Tariff Endorsements (IMT). There is Tariff of Advisory Committee (TAC). IMT which are framed, regulated, published and enforced by TAC which is statutory body under the Insurance Act, 1938. TAC applies equally to all and any insurance company in India, whether public sector or private. No insurer can either supersede/ignore or alter/modify any of the rules framed by TAC. The clarifications, interpretations and amendments declared by TAC regarding any of the IMTs are binding upon all Insurance Company in India.
8) According to the Complainant with the help of younger brother and nephew, he made several correspondences with other Insurance Company like Bajaj-Allianze, Iffco-Tokio, Reliance General, etc. and wrote several letters to the Chairman, TAC. However, no reply whatsoever came from TAC. Then the Complainant made several applications under Right to Information Act, 2005 to various authorities including TAC, IRDA, etc. and sought information. After collecting information it was revealed that prior to 01/04/95 the endorsement “IMT-5”, read as under –
“An accident to unnamed passengers other than insured and his paid driver or cleaner (Private Cars Only).” During relevant period in the said IMT-5, the presence of the words “but not driving” was therein and it was interpreted by the Insurance Company that PA cover was granted only to such a passenger who would not happen to be driving insurance vehicle. There was no expressed provision in the entire IMT to grant PA cover to the insure person in any of his capacity either as a passenger or driver, an unnamed, casual, one time driver who was neither an owner–driver nor a paid-driver. Therefore, son, daughter, sister, husband or other owner, relative, neighbour who may casually have to drive an insured’s vehicle at any movement out of the need due to circumstances, could not be granted PA cover, though the law permitted all such persons to try insured vehicle if they have a valid driving license. Such provision was contradictory with the aims and objects sought to be achieved by TAC and by the Insurance Act. It is submitted that TAC realized this blunder and rectified the same by issuing amendment Circular No.IMT/REV/90(6-95), dtd.01/04/05 and making its intention clear to delete the words ‘but not driving’ from MIT-5, as it then stood. “India Motor Tariff” was prepared on 01/05/2001 which carried an IMT-5 without the wards ‘but no driving’ as amended by circular dtd.01/04/95. According to the Complainant, while actually printing/publishing the said revised tariff w.e.f.01/07/02 onwards “but not driving” which were deleted earlier got again included through oversight and found presence in endorsement IMT-16 of Revised Tariff. Erstwhile IMT-5 was renamed as IMT-16 in the Revised Tariff. The Complainant had produced copy of IMT-16 Revised Tariff alongwith complaint at Exh.‘K’.
9) The Complainant has stated about correspondence made with TAC and other Insurance Companies correspondence between the TAC and other Insurance Companies and alleged that Opposite Party has illegally repudiated his genuine claim. Repudiation is not based upon violation or breach of any policy condition by the Complainant or the deceased. The claim is repudiated only on the strength of draft of IMT-16 which stood as on the date of last i.e. 07/05/04. It is contended that copies of IMT-16 was not attached to the document. The deceased, a non paid driver, was not prohibited from driving the insured vehicle. Premium was charged for the total seating capacity of his vehicle including the driver. Repudiation is not justified and therefore, the Complainant has filed this complaint.
10) The Complainant has prayed to declare that first repudiation dtd.09/08/04 and final repudiation dtd.14/02/07 by the Opposite Party of Complainant’s PA claim is bad, illegal and void. He has requested to direct Opposite Party to allow the Complainants full claim of Rs.2 Lacs alongwith simple interest @ 12 % p.a. from 09/08/04 till realization of actual amount. The Complainant has prayed for compensation of Rs.2,50,000/- for mental harassment and agony and R.15,000/- towards cost of this proceeding. He has prayed for interim or ad-interim relief in terms of prayer (B). Alongwith complaint the Complainant has produced copies of documents at Exh.‘A’ to ‘X’ colly.
11) The Opposite Party has filed written statement and thereby resisted claim of the Complainant contending that complaint is not maintainable. It is vexatious and without any merits and therefore, deserves to be dismissed with cost. It is contended that the matter warrants and elaborate trial with examination of several witnesses and involves complicated issues which cannot be adjudicated in a summery procedure by this Forum and therefore, complaint be dismissed.
12) According to the Opposite Party, after application of minds decision was taken to repudiate the claim of the Complainant. Decision taken by the Opposite Party is in accordance with the terms and conditions of the policy and therefore, complaint deserves to be rejected. Further, it is submitted that the Complainant had filed Writ Petition before the Hon’ble Bombay High Court bearing Writ Petition No.1214/2006 which was dismissed by the Division Bench of the Bombay High Court. The Complainant has given a completely different interpretation of the terms & conditions of the policy and in the said writ petition assigned totally irrational and illogical reasons in support of his contention for admissibility of his claim. The Complainant’s abovesaid Writ Petition was dismissed by the Hon’ble High Court. The Complainant has not produced copies of the orders of Hon’ble High Court.
13) According to the Opposite Party core issue in this matter is of interpretation of an insurance policy which cannot be decided in summery proceeding by the Consumer Forum. In support of aforesaid contention Opposite Party has relief upon decision of the Hon’ble Supreme Court, reported in 1999 CCJ 949 and submitted that the matter may be referred to the Civil Court.
14) By referring to the Schedule of Premium in the personal accident policy about the compensation that would be payable. Likewise for personal accident to owner–driver i.e. whilst the owner/insured himself is the driver, compensation would be payable. Lastly in respect of the liability towards employee i.e. paid driver that premium of Rs.25 would be applicable. Undisputedly the deceased was son of the Complainant and at the material time he was driving the vehicle in question. He was therefore, neither a passenger nor the owner–driver nor an employee of the owner. Thus, as per the policy conditions, no compensation in respect of death of the deceased son of the Complainant was payable under Personal Accident Coverage. The risk in respect of deceased was not covered under the policy. No premium was charged by the Opposite Party for covering risk of any friend or relative of the insured-owner driving the vehicle. The coverage of the Personal Accident was limited only to certain class of persons as mentioned above. The policy of insurance was issued to the Complainant with all terms and conditions, exclusions and exceptions that were accepted by the Complainant unconditionally. This amounts to a valid and binding contract between the Complainant and Opposite Party. Now, the Complainant wants the Opposite Party to go beyond the scope of the policy by assigning irrational, illogical and baseless reasons. The Complainant’s contention is that driver should be considered as an unnamed passenger cannot be accepted. The policy is issued as per India Motor Tariff by Tariff Advisory Committee which is a statutory body. Premium was not charged by the Opposite Party for the risk of driver other than owner or paid driver.
15) It is submitted that the meaning of driver given the Oxford Dictionary is “a person or thing that drives something”. Driver in turns means: “operate and control the direction and speed of the vehicle, convey in a car”. Convey means: “transport or to carry a place’. Aforesaid operations and controlling of vehicle and transporting or carrying to a place can only be done by a driver not passenger. Dictionary meaning of passenger is: “traveler on a public or private conveyance other than the driver.
16) According to the Opposite Party, deceased being admittedly a driver, the Complainant, cannot claim personal accident insurance monies form the Opposite Party who has insured only risk a certain class of person being a owner–driver and paid-driver and un-named passengers. As per the RC Book, seating capacity of the Complainant’s vehicle in question is 5. As per law and even as per contract of insurance there cannot be 5 passengers in the vehicle. Policy condition, its endorsement and various items mentioned in the schedule cannot be read in isolation. The Complainant wants to be read piecemeal, to suit his purpose. It is alleged that in the writ petition the Complainant had claimed that deceased was a passenger. Now, the Complainant has changed is version.
17) The Opposite Party has denied each and every allegation made in the complaint submitting that policy was issued to the Complainant on the basis of direction of Tariff Advisory Committee. The policy schedules as well as printed material were issued to the Complainant with IMT-16 attached to the policy which was accepted by the Complainant without demur. Opposite Party’s have denied allegations that matter was misprinted in IMT-16 as alleged by the Complainant. According to the Opposite Party, the complaint being false and vexatious deserves to be dismissed with compensatory cost.
18) The Complainant has made application for amendment of complaint and thereby prayed for enhanced compensation of Rs.2,50,000/- on account of mental harassment and Rs.15,000/- as cost of this proceeding. The amendment application was allowed. The Complainant subsequently carried out amendment with the permission of this Forum.On 27/05/06, the Complainant made an application to direct Opposite Party to obtain statutory interpretation of certain provision of “India Motor Tariff”. Opposite Party has filed affidavit of evidence-cum-rejoinder and produced copies of number of documents. The Complainant has also filed written argument. We heard oral submission of the Complainant’s Representative–Mr.Prakash Seth and Ld.Advocate Mrs. Sapna Bhuptani for the Opposite Party.
19) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Party ?
Findings : No
Point No.2 : Whether the Complainant is entitled for relief as prayed for ?
Findings : No
Reasons :-
Point No.1 :- Following facts are admitted fact that the Complainant Mr. Girishkumar C. Seth had purchased a Private Motor Package Policy known as Comprehensive Car Package Policy from Opposite Party for his Maruti Motor Car, bearing No.MH-06-C-7802 bearing Policy No.112500/31/03/18238 and the policy was for the period 21/01/2004 to 20/01/2005. The Complainant has produced xerox copy of the aforesaid Private Motor Package Policy alongwith complaint at Exh.‘A’. According to the Complainant, as per RC/TC Book capacity of his car, four passenger plus 1 driver i.e. 5. The Opposite Party has admitted the fact of aforesaid policy was issued to the Complainant’s Maruti Car. According to the Complainant, the Opposite Party granted Personal Accident cover upto Rs.2 Lacs to each to 5 unnamed passenger under endorsement titled as “PA cover to unnamed passenger other than insured and paid driver and cleaner and for that purpose Opposite Party has charged premium of Rs.500/-. This fact is also admitted by the Opposite Party.
It is not in dispute that on 07/05/04 while the Complainant’s son Rajesh, aged about 24 years was driving aforesaid vehicle, he met with a fatal accident near Hanging Garden, Mumbai, and died on the spot due to injuries sustained. Further it is not in dispute that Complainant’s deceased son Rajesh was a holding a valid driving license. On 10/05/2004, the Complainant informed the Opposite Party about the aforesaid accident and asked for claim form for a PA claim for Rs.2 Lacs under “PA Cover to unnamed passengers other than Insured and paid driver and cleaner”. For the death of his son, Rajesh, the Complainant submitted his claim form alongwith necessary papers, such as, Panchanama, Post Mortem Report, C.A.’s Report of blooding sample deceased, etc. Aforesaid facts are not challenged by the Opposite Party. According to the Complainant in the last week of June, 04, Administrative Officer of Division Office of Opposite Party orally informed the Complainant that since deceased was neither a passenger nor a owner driver, nor a paid driver, a decision had taken before MRO –I, to repudiate the Complainant’s PA claim. The Complainant wrote a letter to Opposite Party’s Officer and requested to reconsider/review their decision. Subsequently, the Opposite Party vide their letter dtd.09/08/04 informed the Complainant about repudiated of his claim on the ground that “Mr. Rajesh Sheth, the son of the owner of vehicle, Mr. Girishkumar Sheth who was driving the vehicle at the time of accident was neither owner of the vehicle or paid driver hence, claim falls out of scope of the policy and is not payable.” According to the Opposite Party, as per terms and conditions of the policy, they have repudiated the claim of the Complainant and merely because claim was repudiated it cannot be said that there is deficiency in service on the part of Opposite Parties.
It is submitted on behalf of the Complainant that Private Car Package Policy issued by any General Insurer in India is governed by India Motor Traffic Endorsement (IMT). TAC which is statutory body under Insurance Act, 1938, controls and regulate the rates, advance, terms and conditions that may be offered by the Insurers in General Insurance Business. The aforesaid submissions of the Complainant are not disputed by the Ld.Advocate for the Opposite Party.
It is submitted on behalf of Complainant that prior to 01/04/05 endorsement “IMT-5” read as under – “Accidents to unnamed passengers other than insured or his paid driver or cleaner (Private Cars Only). It is submitted that while there were other provision in the then prevailing IMT to grant PA cover to i) the insured in any office capacity either as a passenger or as a driver, ii) the paid driver, cleaner or any employee working with such insured and iii) any unnamed third person traveling in the vehicle as a passenger. However, there was no express provision in the entire IMT to grant to an unnamed, casual, one time driver who was neither an owner – driver nor a paid-driver. Therefore, a son, daughter, brother, sister, husband, wife or other close relatives or neighbour casually have to drive the insured’s vehicle at any movement would not be granted PA cover, though, law permitted all such person to drive the insured’s vehicle if they have a valid driving licenses. It is submitted that TAC realized this blunder and rectified the same and by issuing an amendment Circular No. IMT – IVE – 90 (6-95) dtd.01/04/95 thereby deleting the word “but not driving” from IMT-5 as it then stood. The Complainant has produced copy of the aforesaid circular alongwith complaint at Exh.‘I’. Relevant portion of aforesaid circular dtd.01/04/95 read as under -
“Insurance attention is invited to General Insurance NO.27 and endorsement No.18 and 165 respectively of the India Motor Tariff to make intention clear.
It is submitted by the IMT came to be revised by TAC, which was to be made effective from 01/07/02. Prior to the publication of such revised IMT and updated copy of entire IMT was prepared on 01/05/01 which carried out IMT-5 without the words “but not driving”. The Complainant has produced copy of the updated draft alongwith complaint at Exh. ‘J’. It is alleged by the Complainant while actually printing/ publishing the said Revised Tariff w.e.f.01/07/02 onwards words “but not driving” which were deleted earlier vide circular dtd.01/04/95 got again included through oversight and found presence in the endorsement IMT-16 of the Revised Tariff. Erstwhile IMT 5 was renamed as IMT 16. It is submitted that in such circumstances whenever other Insurance Companies sought clarification from TAC in this regard TAC give clarification in that respect.
Ld.Advocate for the Opposite Party has strongly opposed the aforesaid submissions made by the Complainant. It is submitted that there is no substance in the allegations made by the Complainant that due to the oversight the words “but not driving” were included. As per the policy of the Regulating Authorities, the aforesaid words were included in the revised IMT-16. The Opposite Party has produced copy of affidavit of H. Ananthkrishnan, Officer on special duty of I.R.D.A. before the Hon’ble High Court in Writ Petition No.38/2007. It is submitted on behalf of Opposite Party that there is no substance in the contention raised by the Complainant that policy issued to the Complainant was not as per IMT Rules. On the contrary, the Complainant in his complaint has clearly stated that Private Car Package Policy issued by any General Insurer in India is governed by “IMT”. The Complainant has admitted that in the revised IMT w.e.f.01/07/02 there are words “but no driving”. Photo copy of the policy issued by the Opposite Party to Complainant and its in accordance with the IMT Rules. PA cover is given to unnamed passengers number 5 of an amount of Rs.2 Lacs. Compulsory PA to owner-driver has been charged and W.C. to the Complainant.
It is clear from the evidence on record that Private Motor Package Policy which was purchased by Complainant from the Opposite Party for his Maruti motor for the period 21/01/04 to 20/01/05 was issued by the Opposite Party in accordance with the terms and conditions as per then prevailing IMT-16. The Complainant has also admitted that from Private Motor Package Policy issued by any general insurer is governed by IMT. Further it is admitted by the Complainant that Revised IMT which was came into effect from 01/07/02 the words “but not driving” are included in the IMT-16 which was erstwhile IMT-5. We do not find substance in the contention raised by the Complainant that due to the over sights or mistake, the words “but not driving” are included in IMT-16 from 01/07/2002. Therefore, the Complainant’s contention PA cover for unnamed passenger ought to have granted to his son by the Opposite Party cannot be accepted. It is undisputed fact that at the time of accident which took place on 07/05/04, the Complainant’s son Rajesh Seth was driving the vehicle and in the accident he died on the spot. The car in question is in the name of Complainant Mr. Girishkumar Seth. The Complainant has obtained insurance cover for the said car form the Opposite Party. Rajesh, son of the Complainant was neither owner-driver nor paid driver of the said vehicle. Therefore, it appears that Opposite Parties decision to repudiate the claim of the Complainant is in accordance with the terms and conditions of the policy. In such circumstances, we hold that the Complainant has failed to prove deficiency in service on the part of Opposite Party. In the result we answer point no.1 in the negative.
Point No.2 :- The Complainant has failed to prove deficiency in service on the part of Opposite Party. The Opposite Party has repudiated the claim of the Complainant on the basis of terms and conditions of the policy. Therefore, the Complainant is not entitled to recover Rs.2 Lacs as compensation from the Opposite Party. The, Complainant is also not entitled for cost or any other relief from the Opposite Party. Hence, we answer point no.2 accordingly.
For the reasons discussed above, complaint deserves to be dismissed hence, we pass following order -
O R D E R
i.Complaint No.111/2007 is dismissed
ii.No order as to cost.
iii.Certified copies of this order be furnished to the party.
