Haryana

Kurukshetra

266/2018

Bachni - Complainant(s)

Versus

NIA - Opp.Party(s)

B.S.Wallia

21 Oct 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION KURUKSHETRA.

 

Consumer Complaint No.226 of 2018

Date of instt.: 7.12.2018

                                                         Date of Decision:21.10.2021.

 

Bachni Devi (62 years) w/o Sh.Ved Pal @ Ved Parkash resident of village Bhusthala, Tehsil Pehowa District Kurukshetra.

                                                                                      …….Complainant.                                                 Versus

 

1.New India Insurance Company Limited 1215, Naurang House 21, K.G.Marg, New Delhi through its Manager/ Executive Officer.

                                                                 ….…Respondent.

 

2.Sunita Rani w/o late Sh.Surjeet Singh aged 29 years.

3.Rudar Bhatia son of late Sh.Surjeet Singh age 08 years (minor)

4.Ishant Bhatia son of late Sh.Surjeet Singh age 06 years (minor) respondent no.3 and 4 both are through mother as guardian and next friend Smt.Sunita Rani and all the respondent 2-4 are residing at house No.120/C Police Line , Moginand, Panchkula (Haryana).      (2-4 are performa respondents).

 

Complaint under Section 12 of Consumer Protection Act.

 

Before        Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member. 

                   Shri Issam Singh Sagwal, Member.                                                       

 

Present:      Sh. B.S.Walia  Advocate for the complainant.        

Sh.J.K.Wadhwa Advocate for OP no.1.

OP No.2 to 4 ex parte.

ORDER

                                                                         

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Bachni  against New India Insurance Co. etc. the opposite parties.

 

2.                The brief facts of the complaint  are that son of the complainant namely Surjeet Singh had purchased one insurance policy No.98000031170305951965  valid from 29.11.2017 to 28.11.2018 for his car bearing registration no. HR03S-400. As per terms and conditions of the said policy, the personal accident cover for owner driver CSI Rs.2,00,000/-  was also covered under the said policy.  Surjeet Singh who was son of the complainant died in a road accident on 9.06.2018  and FIR No.68 dated 9.06.2018 u/s 279/337/304-A IPC has been registered in the Police Station Raipur Rani District Panchkula.  After the death of her son, the complainant gave  intimation to the OP No.1 and gave application dated 29.10.2018 to the OP-insurance company requesting them to pay the claim of Rs.2.00 to the complainant as per  terms and conditions of the policy. The  OP has failed to pay the claim of the complainant despite repeated requests and service of the legal notice, which amounts to deficiency in services on the part of the OP. Thus, the complainant has filed the present complaint alleging deficiency in services on the part of the OP and prayed that the OP be directed to pay the amount of Rs.2.00 alongwith compensation for the mental harassment caused to her and the litigation expenses.

 

3.                Upon notice, OP no.1 appeared and filed written statement disputing the claim of the complainant. It is submitted that the in this case has been repudiated by the OP. However, the insured did not adhere the terms and conditions of the policy. The term owner-driver as per the terms and conditions of the policy as per GR-36(A) which relates to personal accident (PA)cover under motor policy is reproduced as below

                   A. Compulsory personal Accident cover for owner-driver.

                   Compulsory personal accident shall be applicable under both liability only and packages policy’s. The owner of insured vehicle holding an “effective “ driving license is termed   as owner-driver for the purpose of this Section. In this context, it is submitted that when the PA claim was lodged with the answering OP, the driver’s licence relied upon by the complainant/Sunita Rani, on investigation was found to be fake as the Licensing Authority Thanesar from where the said license No.DL/N/7485, alleged to be issued to Surjeet Singh son of Sh.Ved Parkash was alleged to have been issued, specifically gave its report that there is no record found for the said driving license . Keeping in view the same, deceased cannot be termed as owner-driver of the vehicle at the time of accident and resultantly  the claim of personal accident of Surjeet Singh was legally repudiated. Thus, it is prayed that the present complaint is not maintainable and prayed for dismissal of the same.

 

4.                OP No.2 to 4 (performa Ops),   were duly served upon but they failed to appear and contest the present case. Therefore, vide order dated 17.01.2019, OP No.2 to 4  (performa OPs) were proceeded against ex-parte.

         

 

5.                The complainant in support of her case has filed affidavit                                                                                                                                                                                                                                                                                                                                                                           Ex.CW1/A and tendered documents Ex.C-1 to Ex.C-10 and closed her  evidence.

 

6.                On the other hand, OP no.1 in support of its case has filed affidavit Ex.RW1/A and tendered documents Ex.R-1 to Ex.R-7 and closed its evidence.

 

7.                We have heard the learned counsel for the parties and gone through the material available on the case file. Written arguments placed on record on behalf of the complainant also perused.

 

8.                The learned counsel for the complainant while reiterating the averments made in the complaint has argued that the son of the complainant namely Surjeet Singh had purchased one insurance policy No.98000031170305951965  valid from 29.11.2017 to 28.11.2018 for his car bearing registration no. HR03S-400. He has argued that said Surjeet Singh son of complainant was having a valid driving licence Ex.C-10 which was valid upto 25.5.2025. It is argued that said Surjeet Singh died in the accident on 9.6.2018 while he was driving the said vehicle and under the said insurance policy, driver-cum-driver was insured for the sum of Rs.2.00 lacs but the said claim was not paid by the OP.  It is argued that the legal notice Ex.C-6 dated 14.11.2018 was served upon the  Ops to  pay the claim and this fact is mentioned in para no.5 of the complaint.  It is also argued that the accident in question is not in dispute and the copy of the said insurance policy is Ex.C-1. Ex.C-9 is the registration certificate of the vehicle and in the said RC Surjeet Singh, deceased, is shown as owner of the vehicle and being owner of the said vehicle, complainant is entitled to claim. It is also argued that the complainant is the mother of the deceased and OP no.2 to 4 are wife and children of said Surjeet Singh and the complainant as well as OP No.2 to 4 are entitled to claim of Rs.2.00 lacs as per insurance policy Ex.C-1. It is also argued that Ex.R-4 alleged conditions are not part of the policy in question. Reliance has been placed on Smt.Sarbati Devi and another Vs. Smt.Usha Devi AIR 1984 Supreme Court 346, The New India Assurance Company Limited and another M/s Himachal Shots and Medal Pvt.Limited  PLR Vol.CLXXX1-(2016-1)  and The Oriental Insurance Co. Vs. Monika and others   Vol.CLXV-)2012-1) PLR 605.

 

9.                On the other hand, learned counsel for the OP has argued that complainant is not consumer qua the OP and in the policy Ex.R-3 Smt.Sunita is shown as nominee. It is further argued that a person  holding a valid and genuine driving licence is deemed to be owner cum driver of the vehicle but Surjeet Singh, who was driving the vehicle at the time of accident does not hold a valid and genuine driving licnece and as per  application of surveyor and report of the Licensing Authority, Thanesar, deceased Surjeet Singh was not holding a valid and genuine driving licence and claim was repudiated and intimation to Smt.Sunita  was given vide letter Ex.R-1  and  the reply to legal notice is  Ex.R-2  which was  sent to the Counsel of the complainant  wherein it was stated that  Surjeet Singh has violated the terms and conditions of the policy and no claim is payable in this case and  thus it is argued that there is no deficiency in services on the part of the OP. It is also argued that Ex.R-5  sent to  Bachni Devi  was merely an intimation and the claim, if any, can only be given to Smt.Sunita Devi.  It is also argued that the insured Surjeet Singh has violated the terms and conditions of the insurance policy and the complainant is not entitled to any claim. Learned counsel for the OP has argued that   complainant is not nominee of the deceased insured and the present complaint is not maintainable.

 

10.              In the rebuttal arguments, learned counsel for the complainant  has argued that the alleged report Ex.R-6 made by the Licensing Authority, Thanesar  on the application of surveyor where it is mentioned that record of the DL is not available is not maintainable and genuine. It is also argued that as per alleged conditions in Ex.C-1, as  argued by the OP, if the  complainant was not holding a valid and genuine licence,   then why the OP has issued the said insurance policy and  how the fee of Rs.100/-  for insurance of driver cum  driver has been obtained by the OP and now the OP is  stopped by its own act and conduct from denying the claim to the claimants. It is also argued in rebuttal by the learned counsel for the complainant that nominee is merely a care taker and the complainant being the first class legal heir is also entitled to claim.

 

11.              After hearing the learned counsel for the parties and perusing the authorities relied upon on  behalf of the complainant we are of the view that the complainant as well as wife and children (impleaded as proforma Op No.2 to 4) of the  deceased Surjeet Singh are entitled to relief. In this case, obtaining of insurance policy, accident and death of Surjeet Singh in the said accident are not in dispute. The  contention of the learned counsel for the OP that the present complaint is not maintainable because the said complaint has not been filed  by the nominee  is devoid of any force because  “A nominee made under section 39 does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the Life Insurance policy on the death of the assured. Moreover, the complainant has impleaded the wife and children of the deceased in this case as party and if the present complaint succeeds, then in our mind, mother, wife and children  of the deceased would be entitled to claim if any payable under the said policy. In coming to our this conclusion, we are supported by the law laid down in Smt.Sarbati Devi and another’s case (Supra).

 

12.              So far as the question of driving licence of the deceased Surjeet Singh is concerned, the complainant has placed on the file  copy of the driving licence  Ex.C-10 of the deceased Surjeet Singh. Perusal of this DL shows that it has been issued by Lincensing Authority, Thanesar and  it was valid upto 25.05.2025.  The  OP has placed on the file alleged report of Licensing Authority Thanesar wherein it is mentioned that there is no record found for the driving licence bearing No. DL/N/7485.   The plea that there is no record of the said DL is raised by the OP and the onus was on the OP to prove the same by leading a cogent and convincing evidence.  The OP should have summoned any official from the office of Licnesing Authority, Thanesar to prove that the signatures on the said DL are not that of the then Licensing Authority, Thanesar but it has not been done so. So much so, the OP has also failed to arrange an affidavit from the surveyor who arranged Ex.C-6 from the Licensing Authority, Thanesar. Moreover, in the Ex.RW1/A filed by Sh.A.K.Bhola, Authorized Signatory of the OP, it is not mentioned that the driving licence of Surjeet Singh was fake one and he has filed a stereo type affidavit. In the authority Oriental Insurance Co.Limited Vs. Monika and others’s case (Supra) Hon’ble Punjab and Haryana High court has held as under:

 

                    “(i) Motor Vehicle Act, 1988 (59 of 1988) Section 149-Driving Licence-Proof of-Required the insurance company to prove that Driving was not holding a valid and effective driving licence and on such an issue, the claimants or the owner-insured were not obliged to lead any evidence. The principle applicable in this regard is as to who would fail in establishing the case if no evidence was led on either side. This principle would clearly show that it was for the insurance company to prove that deceased did not possess the valid and effective driving licence on the date of accident.”

 

 

                   In view of our above discussion and law laid down in authority Oriental Insurance Co.Limited Vs. Monika and others’s case (Supra) cited on behalf of the complainant we hold that Surjeet Singh deceased was holding a valid and genuine driving licence and the claimants are entitled to claim and for non payment of the claim there is deficiency in services on the part of the OP.

 

                   As a result of our above discussion, we accept the present complaint and direct the OP No.1 to make the payment of claim of Rs.2.00 lacs to the legal heirs of Surjeet Singh deceased ( i.e. complainant and OP No.2 to 4 performa Ops) alongwith interest @ 6% per annum from the date of filing of the present complaint i.e. 7.12.2018 till its realization. The OP No.1 shall also pay a sum of Rs.10,000/- as compensation for the mental harassment and agony caused to the claimants alongwith a sum of Rs.5000/- for the litigation expenses.

                     The claim amount of Rs.2,00,000/- together interest and  the amount of compensation and litigation expenses shall be given to all the four persons i.e. complainant, wife of  Surjeet Singh and two minor children in  equal shares.

                   Claim amount of both the minor sons would be deposited with some Nationalized Bank by the OP No.1 in the shape of FDRs and would only be released only  on attaining of majority by the minors.

                   OP No.1 is further directed to make the compliance of this order within a period of 45 days from the date of this order, failing which the complainant shall be at liberty to initiate action against the OP  No.1 u/s 25 and 27 of the Consumer Protection Act. Certified copy of this order be supplied to the parties concerned and the file be indexed and consigned to the record room after due compliance.

 

Announced in the open Commission.

Dated: 21.10.2021.                                              (Neelam Kashyap)

                                                                                  President.

 

 

(Issam Singh Sagwal),              (Neelam)        

        Member                              Member.