Punjab

Ludhiana

CC/21/174

Manpreet Kaur - Complainant(s)

Versus

New India Assurance Co.Ltd - Opp.Party(s)

J.K.Kapila

23 Feb 2024

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:174 dated 25.03.2021.                                                         Date of decision: 23.02.2024.

 

1. Manpreet Kaur widow of Jagjit Singh,
2. Sukhpreet Kaur minor daughter of Jagjit Singh,
3. Rajpreet Kaur minor daughter of Jagjit Singh,

(No.2 and 3 through their mother, natural guardian and next friend Smt. Manpreet Kaur, complainant No.2, who has no adverse interest to that of minors), all residents of Village Rampura, Tehsil and District Fazilka. ..…Complainants

                                                Versus

1. New India Assurance Company Limited, Having its Branch office at Zira (360708), New Talwandi Road, Opp. Sonalika Agency, Zira-142047, Punjab, through its Manager.
2. The Manager, New India Assurance Company Limited, Having its Branch office at Zira (360708), New Talwandi Road, Opp. Sonalika Agency, Zira-142047, Punjab
3. New India Assurance Company Limited, having its Regional Office at Shaheed Udham Singh Chowk, Malwa Road, Ferozepur City through its Regional Manager.
4. Balvir Kaur wife of Harnam Singh (mother of Jagjit Singh), all residents of Village Rampura, Tehsil and District Fazilka.

…..Opposite parties 

Complaint Under section 35 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants            :         Sh. Nitin Kapila, Advocate.

For OP1 to OP3             :         Sh. V.K. Gupta, Advocate.

For OP4                         :         Exparte.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that complainant No.1 is the widow of Jagjit Singh and complainant No.2 and 3 are minor daughters of complainant No1 and she being their mother, natural guardian and friend and has got no adverse interest to that of minors. OP4 is mother of Jagjit Singh and she has been arrayed as performa respondent. The complainants stated that they are the legal heirs of Jagjit Singh, who was the owner cum driver of truck bearing No.PB-30R-6930 and he took Insurance Package Policy from the OPs vide policyNo.36070831200100000658 w.e.f. 13.08.2020 to 12.08.2021 on payment of premium having personal accidental death of insured cum driver for a sum of Rs.15 lac as per the package policy. The complainants further stated that on 21.09.2020, Jagjit Singh at about 10 PM in the night, loaded iron rods in his truck from Gobindgarh for its transportation to Malout. When he reached Mullanpur Dakha after crossing Toll Plaza, Babli Dhaba and was checking the air pressure in the tyre of truck after stopping the truck, at that time, one unknown vehicle struck Jagjit Singh which resulted multiple grievous injuries to him and he succumbed to the injuries. Jagjit Singh was covered with personal accidental policy package for Rs.15 Lac and as such, the complainants are entitled to receive Rs.15 lac along with other damages on account of accidental death of insured/driver Jagjit Singh. On 20.11.2020, the complainants lodged claim with the OPs along with the documents including the copy of FIR No.149 dated 22.09.2020 U/s.304-A/279 IPC, P.S. Dakha but the OPs did not pay the death claim despite their repeated requests. The complainants further stated that the OPs have committed deficiency in service and unfair trade practice which has caused mental pain, agony and physical harassment to them for which they are entitled for compensation of Rs.2,00,000/-. The complainants sent egal notice dated 11.01.2021 upon the OPs followed by reminder dated 15.02.2021 but no reply has been received. In the end, the complainants have prayed for issuing directions to the OPs to make payment of claim of Rs.15 Lac along with other damages on account of accidental death of insured/driver Jagjit Singh and also to pay compensation of Rs.2,00,000/-.

2.                Upon notice, none turned up on behalf of OP4 and as such, OP4 was proceeded against exparte vide order dated 28.07.2021.

3.                Upon notice, OP1 to OP3 appeared and filed joint written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint etc. OP1 to OP3 stated that as per the case of the complainants, the deceased was checking the air pressure in the tyres of the truck after stopping the truck, then at the spur of the moment, one unknown vehicle struck without caring for the presence of Jagjit Singh (since deceased), against the person of Jagjit Singh and as a result of which Jagjit Singh received multiple grievous accidental injuries and he succumbed to the injuries due to said accident. OP1 to OP3 further stated that the claim is not payable as per GR36 of Motor Tariff, which is reproduced as under:-

“GR.36. Personal Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Section E, F and G of Tariff for Commercial Vehicles) A. Compulsory Personal Accident Cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package policies. The owner of insured vehicle holding an „effective‟ driving license is termed as Owner-Driver for the purposes of this section. Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/ dismounting from or traveling in the insured vehicle as a co–driver.

NB. This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/she holds an effective 18 driving license. Hence compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner-driver does not hold an effective driving license. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner - driver should not be charged and the compulsory P. A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her.”

OP1 to OP3 further stated that in view of this mandatory provision of law, the complaint is not maintainable and is liable to be dismissed.

                   On merits, OP1 to OP3 reiterated the crux of averments made in the preliminary objections. OP1 to OP3 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

4.                In support of their claim, complainant No.1 Smt. Manpreet Kaur tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of FIR, Ex. C2 is the copy of most mortem report of Jagjit Singh, Ex. C3 is the copy of Aadhar card of Jagjit Singh, Ex. C4 is the copy of death certificate of Jagjit Singh, Ex. R5 is the copy of Aadhar card of Rajpreet, Ex. C6 is the copy of Aadhar card of Sukhpreet Kaur, Ex. C7 is the copy of Aadhar card of Manpreet Kaur, Ex. C8 is the copy of certificate of insurance w.e.f. 13.08.2020 to 12.08.2021, Ex. C9 is the copy of Aadhar card of Balbir Kaur, Ex. C10 is the copy of RC No.PB30R6930, Ex. C11 is the copy of pollution certificate, Ex. C12 is the copy of National Permit (Goods), Ex. C13 is the copy of E-receipt, Ex. C14 is the copy of Form PNPGG issued by Regional Transport Authority, Ferozepur, Ex. C15 is the copy of  Goods Permit (Hire or Reward), Ex. C16 is the copy of driving licence of Jagjit Singh, Ex. C17 is the legal notice dated 11.01.2021, Ex. C18 to Ex. C20, Ex. C22 to Ex. C24 are the postal receipts, Ex. C21 is the copy of reminder dated 15.02.2021 and closed the evidence.

5.                On the other hand, counsel for OP1 to OP3 tendered affidavit Ex. RA of Sh. Poonam Sharma, Manager, The New India Assurance Company Limited, Regional Office, The Mall, Ludhiana along with documents Ex. R1 is copy of insurance certificate w.e.f. 13.08.2020 to 12.08.2021,  Ex. R2 is the copy of letter dated 20.11.2020 regarding non-admissibility of claim, Ex. R3 is the copy of legal opinion of Sh. Manohar Lal Chugh, Advocate, Ex. R4 is the copy of repudiation letter dated 31.05.2021, Ex. R5 is the copy of claim form and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.

7.                 One Jagjit Singh, now deceased, holder of a valid and effective driving licence Ex. C16 was the registered owner of one truck bearing No.PB-30R-6930 having National Permit (Goods) Ex. C12 and Goods Permit (Hire or Reward) Ex.C15. The deceased availed a Commercial Vehicle Package Policy from OP1 to OP3 having a period of cover from 13.08.2020 to 12.08.2021. Policy certificate Ex. C8 = Ex. R1 also shows that this policy extended cover basic OD cover along with compulsory personal accident cover for owner/driver (sum assured Rs.15 Lac) and limited liability was also entailed upon OP1 to OP3 with regard to paid driver. Further it has specifically mentioned the limitation as to use of the vehicle and covered use to the vehicle having a permit within the meaning of Motor Vehicle Act. At this outset, it is made clear that neither of the parties hereto produced the policy schedule containing terms and conditions of the policy. Only after the direction of this Commission during the course of arguments, the counsel for OP1 to OP3 produced Standard Form for Commercial Vehicle Package Policy which is now exhibited as Ex. Cx.

8.                As per version of helper Nirvail Singh who is the complainant and author of FIR No.149 dated 22.09.2020 Ex. C1 that he along with Jagjit Singh loaded iron bars from Mandi Gobindgarh for transporting the same to village Malout. When they reached in the area of Mullanpur Dakha after crossing Toll Plaza, Babli Dhaba, the vehicle was hated and Jagjit Singh dismounted himself from the vehicle and went to check the air pressure of tyres. In the meanwhile, an unknown offending cantor driven rashly and negligently hit him and ran away causing serious injuries to Jagjit Singh. He was shifted to Civil Hospital, Jagraon in inured condition where he succumbed to the injuries. After registration of FIR, post mortem of Jagjit Singh was conducted on 22.09.2020 and as per post mortem report Ex. C2, the cause of death was decared as under:-

                   “Cause of death

                   Cause of death in my opinion is hypovolemic shock due to multiple            vital organ injuries and perfuse bleeding which is sufficient cause             death under ordinary course of nature.”

 

9.                Vide claim form Ex. R5, the complainants being legal heirs of deceased Jagjit Singh lodged a claim with OP1 to OP3. OP1 to OP3 during scrutiny of the claim, obtained a legal opinion from its empanelled counsel Ex. R3. Relying upon the legal opinion and after invoking the regulation GR36 of Motor Tariff, OP1 to OP3 repudiated the claim vide repudiation letter dated 31.05.2021 Ex. R4, the operative part of the same is reproduced as under:-

“This has reference to your intimation/claim form informing s about the accident of Mr. Jagjeet Singh owner of vehicle No.PB30R6930 covered under said policy under compulsory PA cover for owner Driver section for sum insured 15,00,000/- while checking air pressure in the tyres of the truck when hit by some unknown vehicle who later succumbed to injuries.

While going through the papers we observed that your said claim is not payable as per GR 36 of Motor Tariff which reads as under:-

A. Compulsory Personal Accident Cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package policies. The owner of insured vehicle holding an „effective‟ driving license is termed as Owner-Driver for the purposes of this section. Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/ dismounting from or traveling in the insured vehicle as a co–driver.

NB. This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/she holds an effective 18 driving license. Hence compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner-driver does not hold an effective driving license. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner - driver should not be charged and the compulsory P. A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her.”

Keeping in view the above condition your said claim is not payable and your claim is being repudiated.”

 

10.              The point of consideration whether OP1 to OP3 were justified in repudiating the claim of the complainants.

11.              The insurance policy is a contract between the insurer and the insured which is governed by the principles of Indian Contract Law and the same is equally binding over the parties to the contract. But it is strange that while repudiating the claim, OP1 to OP3 have not referred to any clause of insurance certificate Ex. C81 = Ex. R1 and only GR 36 of Motor Tariff was invoked. It is evident that since the standard terms and conditions of the policy was produced before this Commission by the counsel for OP1 to OP3 and it is evident that no copy of such terms and conditions were ever supplied to the deceased at the time of issuance of the insurance policy. Perusal  Ex. Cx Standard Form for Commercial Vehicle Package Policy shows that its Section III have identical language as of GR36 of Motor Tariff qua Personal Accident Cover for owner/driver. Section III of the Standard Form for Commercial Vehicles Package Policy reads as under:-

                   “Section III – Personal Accident Cover for Owner-Driver.

Subject otherwise to the terms exceptions conditions and imitations of this policy, the Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or traveling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:

Nature of injury	Scale of compensation
(i) Death	100%
(ii) Loss of two limbs or sight of two eyes or one limb and sight of one eye.	100%
(iii) Loss of one limb or sight of one eye	50%
(iv) Permanent total disablement from injuries other than named above	100%

1. Compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner-driver arising out of any one occurrence and the total liability of the Company shall not in the aggregate exceed the sum of Rs.15 Lakhs during any one period of insurance.
2. No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.
3. Such compensation shall be payable directly to the insured or to his/her legal representatives whose receipt shall be the full discharge in respect of the injury to the insured.
4. This cover is subject to

1.  the owner-driver is the registered owner of the vehicle insured herein;
2.  the owner-driver is the insured named in the Policy.
3.  the owner-driver holds an effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of the accident.”

 

12.              In the present case, deceased Jagjit Singh being owner/driver having an effective driving licence Ex. C16 and insurance certificate Ex. C8 = Ex. R1 in his name. Prima facie it fulfills all the major requirements as stipulated hereinbefore. Further he was transporting iron bars within the area permissible under National Permit. Due to accident, he sustained bodily injuries resulting to his death which was in direct connection with the driving of the vehicle. A driver is supposed to be vigilant while driving about the proper functioning of all the parts of vehicle including the tyres. While checking the air pressure, deceased Jagjit Singh parked the vehicle near Dhaba and took all the precautions when he was hit by the offending vehicle driven rashly and negligently. This section cannot be interpreted to mean that the owner/driver must be behind the wheels all the time or in the process of mounting or demounting from the vehicle only in order to claim reimbursement. Such like interpretation would defeat the very purpose of this section. More so this section also offers a cover for owner/driver when he simply travels in the insured vehicle as a co-driver.

13.              The policy in question practically offers comprehensive package which includes on damage, personal accident and third party coverage. Section 145 to 164 of the Motor Vehicle Act pertains to the insurance of motor vehicle against third party risks. Section 147 of the Act provides that liability of insurer arises when the damage including the death or bodily injuries has been caused by or arisen out of “use of the vehicle” ion a public place. Further Section 165 of the Act deals with the constitution of Claims Tribunal for the purpose of adjudication upon the claims for compensation in respect of accident arising out of “use of the vehicle” involving death or bodily injuries or damage to any property of third party, so arising, or both.

14.              A conjoint reading of these sections will make it crystal clear that use of motor vehicle is of paramount consideration when a motor vehicle has been parked or halted at a place, it would be considered to be in use. The counsel for the complainant has relied upon 2018 AIR (Supreme Court) 3209 in Kalim Khan and others Vs Fimidabee and others whereby the Hon’ble Supreme Court of India has held that Use of motor vehicle – Accident - Tractor engaged by owner for digging well with blasting machine - Battery installed on vehicle and power drawn from battery for explosive purpose - Stone came flying and hit head of deceased causing death- Expression use of vehicle under certain circumstances can be attracted when vehicle is stationary - In such factual matrix, erroneous perception to say that vehicle was not in use – High court fallen into error on said score. Therefore, this Commission deems it appropriate to apply the ratio of the aforesaid established principles of law in the present context.

15.              In the present case as well, the vehicle had temporary halt and deceased had alighted from the vehicle just to check the air pressure in the tyres so that a safe and smooth journey could be undertaken onwards. He was in the process of mounting into the vehicle before he was totally hit by offending vehicle. More so his vehicle was carrying goods from Mandi Gobindgarh to village Malout and it was not lying idle or stationary and was in use. So in our considered view, OP1 to OP3 have wrongly repudiated the claim of the complainants and as such, the complainants are held entitled to the reimbursement of claim of Rs.15,00,000/- along with composite compensation of Rs.20,000/-.

16.              As a result of above discussion, the complaint is partly allowed with direction to opposite parties No.1 to 3 to reimburse the claim of Rs.15,00,000/- to the complainants within 30 days from the date of receipt of copy of order failing which the complainant shall be held entitled to interest @8% per annum from the date of order till its actual payment. Opposite parties No.1 to 3 shall further pay composite cost of Rs.20,000/- (Rupees Twenty Thousand only) to the complainant within 30 days from the date of receipt of copy of order. The complaint as against OP4 is hereby dismissed being performa respondent. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

17.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                                       (Sanjeev Batra)

Member                                                     President    

 

Announced in Open Commission.

Dated:23.02.2024.

Gobind Ram.