DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No: 286 of 2011] -------------------------------- Date of Institution : 06.07.2011 Date of Decision : 12.07.2012 -------------------------------- [1] Smt. Gurjeet Kaur Lally wife of Late S. Avtar Singh Lally, resident of 1517, Sector 43-B, Chandigarh. [2] Paramjeet Singh Lally son of Late S. Avtar Singh Lally, resident of 1517, Sector 43-B, Chandigarh. [3] Inderjit Singh Lally son of Late S. Avtar Singh Lally, resident of 1517, Sector 43-B, Chandigarh. [4] Bhupinder Kaur Sidhu wife of Sh. Ravinder Singh Sidhu, resident of 1167, Sector 21-B, Chandigarh. (All legal representatives Late Major Avtar Singh Lally) ---Complainants. VERSUS New India Assurance Company Limited, SCO 15, Sector 30-D, Chandigarh. ---Opposite Party. BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT MRS. MADHU MUTNEJA MEMBER SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Sh. A.S. Walia, Advocate for the Complainants. Sh. Parminder Singh, Advocate for the Opposite Party. PER JASWINDER SINGH SIDHU, MEMBER 1. Complainants have filed the present complaint, against the Opposite Party; on the grounds that, late Mr. A.S. Lally had subscribed for the insurance policy for his Skoda Fabia car bearing Regn.No.CH-04-3130, vide Policy No. 3533013110010000086 dated 7.4.2010. The copy of the insurance cover note and the policy are annexed at Annexure P-1 and P-2. The said car in question met with an accident on 18.4.2010 at 11.00 PM at Garhshankar, District Hoshiarpur. F.I.R. No. 65 dated 19.4.2010 was got lodged at P.S. Garhshankar. Sh. A.S. Lally along with two other occupants traveling with him, died in the accident. The copies of the F.I.R., death certificate of the Complainant dated 3.5.2010 are attached as Annexure P-3 & P-4. The Opposite Party was informed about the accident on 28.4.2010, and the claim was lodged with it by the Complainants. As per the demand of the Opposite Party, some documents to complete the formalities for the claim were submitted with them, except the driving licence of the driver at wheels at the time of the accident. The letter dated 11.3.2011 is annexed at Annexure P-6. It is mentioned in Para No. 5 of the Complaint, that the Opposite Party had insisted upon the Complainants to supply the copy of driving licence of the insured i.e. Late Sh. A.S. Lally. A letter dated 8.3.2011 was received by the Complainants in this regard; the same is attached at Annex.P-7. The Complainants claim that they did not know as to who was driving the vehicle at the time of accident, and even the F.I.R. makes no mention of this fact. Even the police, who conducted the entire investigation, too, are not certain, about this aspect. There were four persons traveling in the car at the time of the accident; three of them died in the accident. After the accident the wallet of the insured which carried his driving licence could not be found, thus the copy of driving licence demanded by the Opposite Party could not be supplied to them. However, the perusal of insurance cover note carries a mention of details of the driving licence of the insured person i.e. No.DLR/CH-02/180/89/2006, DOI 11.10.2006 and valid upto 10.10.2010. Complainants claim that despite their best efforts, they could not get the copy of the driving licence from the Licensing Authority. The Complainants claim that the Opposite Party wrongly repudiated the claim that the driver/ insured was not holding valid and effective driving licence at the time of the accident. A copy of the letter dated 27.5.2011 is at Annexure OP-13. The Complainants are aggrieved on account of the presumption taken by the Opposite Party about the non-existence of driving licence of the insured, without having conclusively established the fact the details of the same are found mentioned on the cover note dated 7.4.2010, which was issued by the Opposite Party, are wrong. The Complainants, thus alleging deficiency in service as well as unfair trade practice on the part of the Opposite Party, have sought the relief of Rs. 4,73,888/- on account of the total loss of the insured car, along with Rs.2,00,000/- for the personal accident cover of the insured/deceased Sh. A.S. Lally, along with compensation of Rs.1,50,000/- for deficiency in service as well as unfair trade practice and Rs.20000/- towards cost of litigation. The complaint of the complainants is duly supported by a detailed affidavit of complainant No. 1. 2. The Opposite Party has contested the claim of the complainants by filing their reply, taking preliminary objections to the effect that the present complaint is not maintainable, as there is no deficiency in service, the Complainant is guilty of misrepresentation and concealment of material facts, not having approached this Forum with clean hands and the issue involves a complication/ disputed question of fact, which cannot be adjudicated by this Forum. The fact with regard to the existence of policy effective for the period 7.4.2010 to 6.4.2011 for Rs.4,73,788/- (IDV) is admitted. It is also mentioned that there was an inordinate delay of 10 days while intimating about the happening of the accident. The Opposite Party claimed to have written numerous letters Annexure OP-2 to OP-5, requesting for the submission of different documents, including the copy of the driving licence of the driver on wheels at the time of accident. But the Complainants did not bother to submit the same. The Opposite Party had deputed a surveyor M/s Arun Kumar and Company, as well as Mr. V.K. Vashisht, Investigator to investigate the accident and the claim and after the final outcome of these two assessments, the Surveyor had assessed the loss of the vehicle to the tune of Rs.4,73,388/- with a salvage value of the vehicle to the tune of Rs.1,00,000/-. The Opposite Party claims to have rightly repudiated the claim of the Complainants, on the ground that the Complainants failed to produce the driving licence of the insured. The Opposite Party also claim that as per terms and conditions of the policy (Annexure P-1), a person, who is driving the insured vehicle, must be in possession of a valid driving licence, as the copy of the driving licence of the driver on wheels at the time of accident is not furnished. The claim of the Complainants has been rightly repudiated vide letter dated 27.5.2011 (Annex. OP-13). On merits, the Opposite Party has repeated their preliminary objections, while replying to the each averments of the present complaint, in their para-wise reply. While specifically answering the reply to Para 7 and 8 of the complaint in detail, the Opposite Party has categorically stated that the document mentioned in this para is not given by the Opposite Party, and whatever is written in that document is in fact, the information given by the insured, at the time of insurance, which is required to be verified by the Opposite Party, at a later stage, in case of any claim. As per the Opposite Party, the said information cannot be a substitute for a copy of driving licence of the insured for settlement of the claim. Thus, claiming no deficiency in service or unfair trade practice on their part, the Opposite Party prayed for the dismissal of the complaint, with exemplary costs. The reply of the Opposite Party is supported by an affidavit of Sh. P.C. Saini, Sr.D. Manager of Opposite Party. 3. Having gone through the entire complaint, version of the Opposite Party, the evidence of the parties and with the able assistance of the learned counsels for the parties, we have come to the following conclusions. 4. The fact with regard to the subscription of a comprehensive policy cover of the vehicle bearing Regn. No. CH-04-3130 vide Policy dated 7.4.2010, valid upto 6.4.2011 is not disputed. Even the aspect that the insured/deceased Sh. A.S. Lally had also subscribed for Personal Accident Cover to the tune of Rs.2,00,000/- and the same was included in the same policy (Annexure OP-1) too is admitted by the Opposite Party in Para No.3 of their communication dated 19.4.2011/ 25.4.2011 (Annexure OP-12). 5. The main issue involved in the present complaint is with regard to the fact that whether insured/deceased Sh. A.S. Lally was himself on the wheels of the insured vehicle at the time of happening of the accident and secondly whether the insured/deceased was in possession of valid, effective driving licence at the time of happening of the accident. 6. The Opposite Party while having appointed a Surveyor, as well as an Investigator, to investigate, the entire episode, has failed to reach a conclusion, about as to who was driving the vehicle in question at the time of happening of the accident. The Surveyor, who had accepted the claim form under the signatures of Sh.Inderjit Singh Lally son of Sh. A.S. Lally, has mentioned the name of Sh. A.S. Lally as Driver at the time of happening of the accident. As we also believe that Inderjit Singh Lally son of the deceased while appending his signatures at the bottom of this document (Annexure OP-8) has also signed the declaration that the information mentioned in this document is correct as per his knowledge and belief. Thus, we feel that the son of the deceased believed that his late father was at the wheels when the car in question met with an accident. It was incumbent upon the Investigator to find out and reach a conclusive finding about the actual driver of the vehicle at the time of happening of the accident. 7. We have gone through the report of the Investigator, wherein he had four times visited the residence of the deceased/ insured, to enquire about the existence of the driving licence of the insured. Even the visit to the Police Station Garhshankar remained inconclusive, as the Investigating Officer of the P.S. Garhshankar was not contacted and there was no action of the police under Section 173 Cr.P.C. and the case file was claimed to be closed. The investigator in his conclusion has advised the repudiation of the claim on the ground that the legal heirs of the deceased/insured could not produce the driving licence, even though the complainants had mentioned that the deceased/ insured carried his Driving Licence on himself in his wallet which could not be found at the accident site. 8. We have also gone through the terms and conditions of the policy (Annex.OP-1) at page 27, wherein Section III, which relates to “Personal Accident Cover for Owner Driver” reads as under: - “SECTION III. PERSONAL ACCIDENT COVER FOR OWNER DRIVER: 1. 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 driving or mounting into/dismounting from the vehicle insured or whilst traveling in it 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 (i) death (100%), (ii) loss of two limbs, two eyes, or one limb and one eye (100%) (iii) Loss of one limb and loss of sight in one eye (50%) (iv) Permanent total disenablement from injuries other than named above (100%).” The personal accident cover for owner driver as mentioned in Section III (Pg.27) of the terms and conditions of the Policy, deserves to be read along with the Indian Motor Tariff G.R.36, which is reproduced herein below: - “G.R.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 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.” 9. As the letter dated 19.4.2011 (Annexure OP-12) of the Opposite Party, clearly mentions that the own damage claim and the personal accident claim can only be considered if the driver on wheels at the time of accident possesses a valid and effective driving license. This observation of the Opposite Party falls flat in the light of aforesaid IMT G.R. 36, as it was incumbent upon the Opposite Party at the time of issuance of the Personal Accident Cover to the insured/ deceased, to ascertain that the owner-driver should be holding an effective driving license at the time of issuance of the policy. And the Opposite Party was not supposed to issue Personal Accident Cover in the absence of an effective driving license of the owner-driver. Thus, the averments of the complaint in Para No. 7 are very much in consonance of G.R.36, as the Cover Note dated 7.4.2010 (Annexure P-1) clearly mentions the details of the driving license of the insured/ deceased, in whose name the vehicle in question was registered. We feel that at the time of issuance of Personal Accident Cover, the Opposite Party had actually satisfied itself about the existence of the effective valid driving licence of the owner-driver and the details mentioned on the cover note dated 7.4.2010 relate to it. 10. The Opposite Party should have investigated the details of the driving licence mentioned on the cover note so as to conclusively ascertain that these details were genuine and belonged to the insured owner-driver or not. The investigator appointed by the Opposite Party though could not even ascertain as to who was on the wheels of the vehicle, at the time of the accident leave alone the details of the document mentioned on the cover note, on mere presumption had advised the repudiation of the claim of the Complainants. 11. As the Opposite Party in reply to Para 7 of the Complaint, has categorically denied the document mentioned in that para, which is Annexure P-1, the cover note, but at the same time, the Opposite Party has admitted or rather cannot deny the existence of the Policy (Annexure P-2), as well as their admission of Personal Accident Cover of the deceased/owner-driver in Annexure OP-12 dated 19.4.2011. Thus, if the official of the Opposite Party who had issued the Personal Accident Policy to the insured owner-driver without satisfying himself about the valid, effective driving license of the insured owner-driver, then in these circumstances, the Opposite Party cannot deny the claim of the Complainants. The ratio of the judgment titled as United India Insurance Co. Limited Vs. Vivek Kumar, IV (2008) CPJ 321 (HP) is clearly applicable to the present case, as the Hon’ble Himachal Pradesh State Commission has conclusively held that the Agent/ Development Officer of the Insurer totally reckless and negligent in undertaking insurance without having checked necessary documents, proved – Insurer liable to pay awarded amount to Complainant – Entitled to recover the amount from concerned officer/ official. It would not be out of place to mention that the insured met with the accident within 11 days of having subscribed for the Policy. The Opposite Party should have investigated the matter in a just and proper manner, establishing about the non-existence of effective valid driving license of the insured, before repudiating the claim of the Complainants. Thus, the Opposite Party is deficient in rendering proper service towards the complainants. In these circumstances, the repudiation of the Personal Accident Claim of the insured, as well as the own damage claim, amounts to deficiency in service on its part as it is established from their own reply that it failed to fulfill its obligation as mandated by the Indian Motor Tariff G.R. 36. Hence, finding a definite deficiency in service on the part of the Opposite Party, on aforesaid grounds, we allow the present complaint and direct the Opposite Party to pay Rs. 4,73,888/- IDV of the vehicle in question, less salvage value of Rs.1.00 lac as assessed by the Surveyor, along with Rs.2,00,000/- towards the Personal Accident Claim of the deceased/Insured. 12. We also saddle the Opposite Party with Rs.50,000/- on account of deficiency in service and having caused unnecessary harassment and mental agony to the Complainants, along with Rs.10,000/- towards cost of litigation. 13. The above said order shall be complied within 45 days of its receipt by Opposite Party; thereafter, Opposite Party shall be liable for an interest @18% per annum on the awarded amount of the IDV of Rs.4,73,888/- less salvage + Rs.2,00,000/- and Rs.50,000/-, from the date of institution of the complaint, till it is paid, besides Rs.10,000/- towards cost of litigation. 14. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 12th July, 2012Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | | 
