Haryana

Kurukshetra

163/2018

Brijesh Rani - Complainant(s)

Versus

NIC - Opp.Party(s)

08 May 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KURUKSHETRA.

                                                     Complaint Case No.163 of 2018.

                                                     Date of institution: 26.07.2018.

                                                     Date of decision: 08.05.2019.

 

1. Brijesh Rani wife of Pawan Kumar,
2. Pawan Kumar son of Sh. Nihal Chand, both residents of House No.45/7, Indri Road, near Suman Nursing Home, Ladwa, District Kurukshetra.

…Complainants.

                        Versus

National Insurance Company Ltd. Railway Road, Kurukshetra through its Branch Manager (Insurer of Motorcycle No.HR07W-0420).

….Opposite party.

Before:      Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh. Sunil Mohan Trikha, Member.

       

Present:     Sh. Vijay Jindal, Advocate for complainant.   

                Sh. Gaurav Gupta, Advocate for opposite party.

               

ORDER

                This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Smt. Brijesh Rani and another against the National Insurance Company Limited, the opposite party.

2.            It is stated in the complaint that son of the complainants namely Naveen Kumar was registered owner of motorcycle No.HR07W-0420 and the same was got insured with the opposite party vide policy no.39010231156201949065 valid from 20.8.2015 to 19.8.2016. Besides premium of own damage and third party, the premium for covering the personal accident of owner/driver was also charged by the op. It is further averred that on 17.5.2016, Naveen Kumar (since deceased) was going from Ladwa towards Yamuna Nagar on motorcycle No.HR07W-0420 being driven by him at a moderate speed on left side of the road observing all the traffic rules. When at about 12.30/12.45 p.m., he reached in the area of village Aurangabad, a stray dog came in front of motorcycle of Sukhwinder, who was coming from opposite side and in order to save the said dog, Sukhwinder turned his motorcycle towards his left hand side and struck against the motorcycle of Naveen Kumar and resultantly occupants of both the motorcycles alongwith their motorcycles fell down and received injuries. Naveen Kumar received serious and fatal injuries and died at the spot. The motorcycle No.HR07W-0420 was also totally damaged in the accident and still lying at home since the date of accident. It is further averred that matter was reported to the op within time. The op deputed its investigator who had collected all the relevant documents from the complainants and stated that he will report these facts to the concerned authorities of the insurance company. It is further averred that complainants have also submitted all the required documents regarding personal accident claim as well as damage claim of motorcycle to the op. The op had also assured the complainant that both the claims will be paid at the earliest but till today they have not paid any claim to the complainants despite their several visits to the office of ops. The complainants have also sent an application dated 17.5.2018 vide registered post dated 18.5.2018 but to no effect and they are being harassed without any fault. It is further averred that at the time of accident, the insured value of the motorcycle was Rs.44,270/-. That the aforesaid act and conduct on the part of op amounts to unfair trade practice and deficiency in service. The op is liable to pay the personal accident claim of Rs.1,00,000/- and to pay damages claim of Rs.44,270/- alongwith up to date interest and is also liable to pay compensation of Rs.1,00,000/- on account of mental harassment and agony. Hence, this complaint.

3.             Upon notice, opposite party appeared and filed written statement taking certain preliminary objections that complaint is pre-mature, complaint is barred by limitation, this Forum has no jurisdiction, that complainants have no cause of action, complaint is bad for mis joinder of the parties and non joinder of necessary parties and that complainants are stopped by their own act and conduct from filing the present complaint. On merits, the mode of accident as alleged is denied specifically. It is submitted that entire story is false, frivolous and has been cooked up to grab amount taking undue advantage of the beneficent provisions of Consumer Protection Act. It is further submitted that complainants have not lodged any claim regarding the damage and death of Naveen Kumar till date. It is also denied that company has appointed any investigator in this matter, who collected the documents from complainants. All other contents of the complaint are also denied in toto and prayer for dismissal of complaint made.

4.             Learned counsel for complainant tendered affidavit Ex.CW1/A and documents Ex.C1 to Ex.C13. On the other hand, learned counsel for op tendered affidavit Ex.RW1/A.

5.             We have heard learned counsel for the parties and have perused the case file carefully.

6.             Learned counsel for the complainants has contended that it is duly proved on record that motor cycle in question owned by Naveen Kumar son of the complainants was duly insured with the op from 20.8.2015 to 19.8.l2016 as is evident from copy of policy schedule Ex.C6 and the op also charged extra premium amount for compulsory PA cover for owner/ driver. He has further contended that on 17.5.2016 i.e. during the subsistence of the policy, the son of the complainants Naveen Kumar died in a road side accident when he was going on the insured motor cycle and a DDR in this regard was also registered in the police station Sadar Yamuna Nagar, the copy of which is Ex.C1. The opposite party was also informed in this regard and the claim for damage to the motor cycle and personal accident claim for the death of Naveen Kumar was lodged with the op but the op has not paid any claim to the complainants. He has further contended that complainants have lost their son and op cannot reject their claim on the ground of late intimation, if any and prayed for acceptance of the complaint. He has relied upon decision of the Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula in case titled as NIAC Versus Raj Singh Dahiya and others, 2018 (3) CLT 381  and also decision of the Hon’ble Delhi State Commission in case titled as General Insurance Co. Ltd. and anr. Vs. Abhijit Saini and anr. 2008(2) CPJ 483.

7.             On the other hand, learned counsel for op has contended that complaint is pre-mature as the complainants have not lodged any claim for damage of motor cycle and personal accident claim with op till date. He has further contended that accident in question took place on 17.5.2016 whereas the application placed on file by complainants as Ex.C5 itself is dated 17.5.2018 and as such there is delay of information of the accident to the op. He has further contended that no succession certificate of said Naveen Kumar since deceased have been placed on file by complainants and in absence thereof,  none of the complainants is not entitled to any claim and prayed for dismissal of the complaint.

8.             We have considered the rival contentions of both the parties and have perused the case file as well as law cited by learned counsel for complainants.

9.             There is no dispute that the motor cycle in question of the son of complainants namely Naveen Kumar was insured with the opposite party w.e.f. 20.8.2015 to 19.8.2016 and extra premium for compulsory PA cover for owner/ driver was paid to the insurance company by the insured as is evident from copy of two wheeler certificate cum policy schedule Ex.C6. So, the driver/ owner was also insured for the personal accident alongwith motor cycle in question. The motor cycle in question for insured for an amount of Rs.44,270/- at that time.  From the copy of DDR dated 17.5.2016 registered in Police Station Yamuna Nagar Sadar Ex.C1, it is evident that accident took place on 17.5.2016 in which son of complainants namely Naveen Kumar who was driving the motor cycle in question and one Sukhwinder died in the road side accident and the post mortem examination on the dead body of Naveen Kumar was conducted in MLGH Yamuna Nagar as is evident from post mortem examination report Ex.C3. So, the opposite party cannot deny the genuine claim of complainants for personal accident claim for the death of their son Naveen Kumar who was driving the motor cycle in question which was insured with the op and op also cannot deny the claim for the damage to the motor cycle in question. In this regard we are also fortified with the observations of the Hon’ble Haryana State Commission in case titled as NIAC Vs. Raj Singh Dahiya (supra) wherein it has been observed that “Consumer Protection ACT, 1986 Section 2 (1) (g) Deficiency in service- Repudiation of insurance claim on ground of delay intimation- Same held to be not justified in case where the complainant lost his son who was driving the insured vehicle at the time of accident.” Further, the Hon’ble Delhi State Commission in case titled as General Insurance Co. Ltd. and anr. Vs. Abhijit Singh and anr. (supra) has observed that “Insurer is bound by police report with regard to accident/ theft of vehicle- Unless occurrence or information given by insurer is found to be afflicted with a mala fide or falsehood, claim should be accepted- Complaint has rightly been allowed by District Forum.” The above said authorities are fully applicable to the facts and circumstances of the present case. In so far as contention of learned counsel for op regarding succession certificate is concerned, it is clear from the copy of policy schedule Ex.C6 that Pawan Kumar complainant i.e. father of deceased Naveen Kumar was made nominee and as such complainant Pawan Kumar is entitled to the amount of Rs.1,00,000/- for the personal accident claim for the death of Naveen Kumar as per policy and Rs.44,270/- as the insurance amount for the damage to the motor cycle in question. However, complainant Smt. Brijesh Rani is not found entitled to any amount.

10.            In view of the above said law and in view of our above discussion, we allow the present complaint and direct the opposite party to pay a sum of Rs.1,00,000/- to the complainant Pawan Kumar for the death of Naveen Kumar his son and further to pay the insured amount of Rs.44,270/- to the complainant Pawan Kumar for the damage to the insured motor cycle in question within a period of 45 days from the date of receipt of copy of this order, failing which complainant Pawan Kumar shall be entitled to interest @9% per annum on the above said amounts from the date of order till actual realization. We further direct the op to pay a sum of Rs.10,000/- as compensation to the complainant Pawan Kumar for harassment, mental agony and litigation expenses. The complainants will have to complete all the formalities for transfer of the motor cycle in question in favour of op or they have to give salvage to the op in case same is not transferable. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.     

Announced in open Forum:

Dt.: 08.05.2019.                                                  (Neelam Kashyap)

                                                                        President.

 

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.