Haryana

Bhiwani

CC/172/2020

Smt. Suman - Complainant(s)

Versus

NIA - Opp.Party(s)

Sandeep Bhudera

03 Apr 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSASL COMMISSION, BHIWANI.

                                                            Complaint Case No. : 172 of 2020

                                                            Date of Institution    :  19.11.2020

                                                            Date of decision:      :  03.04.2024

 

1. Smt. Suman wife of late Sh. Surender son of Om Parkash,
2. Sonu Kumar  (16 years) minor son of late Sh. Surender,                
3. Anju (14 years) minor daughter of late Sh. Surender,

minors through their mother/next friend/guardian Smt. Suman.

4. Smt. Santro Devi wife of Sh. Om Parkash, mother of deceased Surender, all residents of village Ahmedwas, Tehsil Loharu, District Bhiwani.

 

•  

 

                                                    Versus.

The New India Assurance Company Limited having its Divisional Office 353400, 182-183, Red Square Market, Hisar-125001 and one of its branch office at opposite Ch. Bansi Lal General Hospital, Bhiwani through its authorized signatory.

...Opposite party

 

COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT, 2019.

Before: -       Mrs. Saroj Bala Bohra, Presiding Member.

                    Ms. Shashi Kiran Panwar, Member.

Present:        Sh. Jagdish Sheoran, Adv. for complainants.

Sh. Rajbir Singh, Advocate for OP.

 

                                                  ORDER

 

SAROJ BALA BOHRA, PRESIDING MEMBER

1.                 Brief facts of this case are that husband of complainant no.1-Surender was owner of Cambine/Combine Machine bearing registration no. HR-18D-1647, Model Ashok Ley/Stings, which was financed by Mahindra & Mahindra Finance Service. The Combine machine was purchased by him for earning his livelihood.  The said machine was insured with OP for a period from 13.03.2019 to 12.03.2020.  On 02.10.2019 at about 3 /4:00 p.m., Surender took the machine to the field of Krishan Kumar for harvesting the Moong Crop. During the harvesting, Barma of Combine machine became disorder and while starting the Barma of the machine, his leg slipped, and his right leg upto knee entangled in the Barma of Combine Machine and badly crushed, he was got released from there, after cutting the machine from gas cutter and he found dead. It is alleged that the cause of death was due to hemorrhage shock and the injuries were antemortem in nature and sufficient to cause death in normal course of life.  DDR No.14 dated 03.10.2019 was lodged at P.S. Loharu on the statement of Attar Singh-brother of deceased Surender. The autopsy of Surender was conducted at CHC, Loharu on 03.10.2019. So, complainant No.1 lodged claim with OP company. Upon which, OP company vide their letter dated 02.07.2020 sought certain quarries which were duly replied. However, the OP repudiated the claim vide letter dated 20.07.2020.  Hence, the present complaint has been preferred by complainant alleging deficiency in service on the part of OP resulting into mental agony and physical harassment to complainants besides huge monetary loss. In the end, prayed for issuance of directions to OP to pay Rs.15.00 lac as insurance claim alongwith interest @ 18% per annum from the date of death till payment. Further, to pay Rs.1.00 lac as compensation for harassment and Rs.22,000/- towards litigation expenses. Any other relief, to which this Commission deems fit has also been sought.

2.                 Upon notice, OP appeared and filed written statements raising preliminary objections qua maintainability of complaint & suppression of material facts. On merits, it is admitted that the combine machine was insured with it but denied that the machine was being used for earning livelihood. DDR and PMR have been alleged as in collusion with the concerned authorities. It is submitted that OP deputed Sh. Ravi Kumar Chhabra to investigate the matter who submitted his report dated 20.12.2019. Upon which, letter dated 02.07.2020 was issued to clarify certain points viz. about DDR, vehicle insured for commercial package policy, DL of driver etc. but the reply submitted by complainant was not satisfactory. Thus finding no other alternative, OP repudiated the claim of complainant vide their letter dated 20.07.2020. In the end, denied for any deficiency in service on its part and prayed for dismissal of the complaint with costs.

3.                 In evidence of complainants, affidavits of Ex.CW1/A and Ex. CW2/A of Smt. Suman and Sh. Attar Singh, respectively and documents Ex. C-1 to Ex. C-8 were tendered and closed the evidence on 29.05.2023 after taking some more opportunities.  

4.                 On the other side, affidavit Ex.RW1/A of Mr. Labh Singh, Regional Manager of OP company was filed alongwith documents Ex. R-1 & Ex. R-2 and closed the evidence on 29.05.2023.

5.                 We have heard learned counsels for the parties and perused the record carefully.

6.                 Learned counsel for complainant has argued that the OP insurance company has wrongly repudiated the genuine claim of complainants vide letter dated 20.07.2020 (Ex. C-7) which amounts to deficiency in service on their part resulting into mental and physical harassment as well as monetary loss to the complainants. Learned counsel for complainant has vehemently argued that OP has not placed on record report of investigator which is a lacuna on their defence and shows their malafide intention.  On the other side, learned counsel for OP has validated the repudiation letter on the grounds mainly that:-

1.       There was no explanation as to why instead of calling any mechanic/engineer, Surender (deceased)  himself started job  of a mechanic for repairing the Barma of the Combine machine. Further there is no explanation as to why no MLR was got conducted in respect of the injuries sustained by Surender. Also no explanation, as to why PMR was not got conducted on the date of alleged incident/death dated 02.10.2019 and why police was not informed and DDR was not lodged on this date.

2.       Further, the combine machine was insured for commercial vehicle package policy and as per RC, the vehicle was registered as Harvester and complainant was under legal obligation to disclose this fact to the registering authority regarding using of the harvester for commercial purposes.  

3.       Section IV of (D) Misc. Special Type Commercial Vehicle Policy and General Regulation 36 of the Indian Motor Tariff Pertains to Personal Accident (PA) Cover and Mandates that owner of the insured vehicle is holding an effective driving license and the cover is provided to the owner-driver while driving the vehicle and while mounting into/dismounting from or travelling in the insured vehicle as a co-driver. At the time of alleged, incident, the owner-driver (insured) namely Surender was neither driving the vehicle nor was mounting into/dismounting from the insured vehicle nor was travelling in the insured vehicle as a co-driver. The insured instead of calling the mechanic/engineer to get the Barma of the Combine machine repaired after its become disorder, himself started doing the job of the mechanic, as per DDR Thus the claim of complainants does not come with the scope of the terms & conditions.

4.       The insured was having driving license for non-transport whereas, the vehicle was being used commercially and the policy was also taken for commercial purpose.

7.                 Learned counsel for complainant in order to prove his case has placed on record copy of DDR (Ex. C-3), Copy of PMR (Ex.C-4), Copy of death certificate Ex.C-2, and insurance policy (Ex. C-1) and copy of R.C. of the vehicle (Ex. C-8). Perusal of insurance policy reveals that liability of OP insurance company in case of any personal accident cover for owner driver is for Rs.15,00,000/-.  As per DDR which got lodged by Sh. Attar Singh brother of deceased Surender, reveals that on 02.10.2019, Surender was on the machine and he died while doing some repairing work in the Barma of the Combine machine.  Sh. Attar Singh has placed on record his affidavit (Ex. CW2/A) in support of the factum of the DDR.  In Post Mortem Report, the doctor concerned has opined that the cause of death was due to Hemorrhage and shock. Injuries were ante-mortem in nature and sufficient to cause death in normal course of life.  Thereafter dead body was handed over to police. Perusal of copy of R.C. of the Combine machine reveals that it was registered as Harvester machine. 

8.                 After hearing learned counsel for the parties and going through the record, we have observed that the OP insurance company has wrongly, negligently and arbitrarily repudiated the claim of complainant. The pleadings of OP is that the machine was insured as commercial vehicle and thus complainants are not entitled for any claim from it. But the pleadings of complainant is that the combine machine was being used for earning livelihood, therefore, this arguments of OP side is not tenable.  Further from the above referred documents, it is clear that Surender died while working on the combine machine which on the alleged date was insured and complainant no.1 is nominee in the said policy. Further, we do not see any defect in the DDR and PMR.  In our opinion, there is no issue of driving license as at the time of alleged incident, the vehicle was not moving rather it was still and Surender deceased wanted to check the Barma for some repairs.  The OP insurance company has not placed on record investigation report which casts doubt on the act & conduct of OP whereas this documents should have placed on file by the OP, especially when it has been mentioned in their written statement.  As a sequel of the above, the OP is deficient and negligent in providing proper services to the complainants, because of which, they have suffered monetary loss as well as mental and physical harassment. During the course of arguments, learned counsel for complainant filed documents (2 pages) pertains to the office of SDM, Badhra, which taken on record, shows that hypothecation/loan entry on the vehicle has terminated, as such, the vehicle is free from any encumbrance. Accordingly the complaint is allowed and OP insurance company is directed to comply with the following directions within forty days from the date of passing of this order:

(i)       To pay a sum of Rs.15,00,000/- (Rs. Fifteen lacs) to the complainants, in equal shares,  alongwith simple interest @ 9% per annum from the date of institution of this complaint till its realization. If complainants No.2 & 3 are still minors then their shares shall be deposited in any nationalized bank in the shape of FDRs, till their attaining maturity.

2. Also to pay a sum of Rs.20,000/- (Rs. Twenty thousand) on account of harassment caused to the complainants.
3. And to pay a sum of Rs.5500/- (Rs. Five thousand five hundred) on account of litigation expenses.

                    In case of non-compliance, all the awarded amounts shall further attract simple interest @ 12% per annum for the period of default. 

                    Further, the complainant shall be entitled to the execution petition under section 71 of Consumer Protection Act, 2019 and in that eventuality, the opposite party may also be liable for prosecution under Section 72 of the said Act which envisages punishment of imprisonment, which may extend to three years or fine upto rupees one lac or with both.  Copies of this order be sent to the parties concerned, free of costs.  File be consigned to the record room, after due compliance. 

Announced.

Dated: 03.04.2024