Haryana

Ambala

CC/256/2011

MOHINDER KAUR - Complainant(s)

Versus

OIC LTD - Opp.Party(s)

KESHAV SHARMA

21 Oct 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

            Complaint Case No.    : 256 of 2011

Date of Institution       : 11.08.2011

            Date of Decision         : 21.10.2016

1.         Mohinder Kaur wife of late Shri Hari Kumar R/o village Teja Mohri, P.O. Bhano Kheri, Tehsil & District Ambala.

             2.         Jyoti Devi (minor daughter)

3.         Inderjit Singh (minor son ) of late Shri Hari Kumar, both R/o village Teja Mohri P.O.Bhano Kheri, Tehsil & District Ambala (both minors through their mother and natural guardian Smt. Mohinder Kaur-complainant no.1.                                                                                               

                                                                   ……Complainant.  

                                                                        Versus

Oriental Insurance Co. Ltd. N.M.S.C. LiC Building,  Ambala City through tis Manager.

                                                                                    ……Opposite Party.

Complaint Under Section 12 of the Consumer Protection Act

 

BEFORE:       SH. D.N. ARORA,  PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.                       

Present:          Sh. Keshav Sharma, Adv. counsel for complainant.

                        Sh. Kavinder Chawla, Adv. counsel for Ops.

ORDER.

                        In nutshell, brief facts of the complaint are that husband of complainant no.1 was owner of a three wheeler bearing regn. No.HR37B-7584 and was earning his livelihood by driving the said three wheeler.  On 10.10.2010, when husband of complainant Sh. Hari Kumar wanted to start his three wheeler by pulling rope, suddenly the three wheeler came in back side and hit the husband of complainant, as a result of which husband of complainant received severe injuries on his person  including head injury and he was taken to N.P. Hospital Ambala City and  from where he was referred to PGI, Chandigarh where he died in the night of 10.10.2010.  It has been submitted that the said three wheeler was insured with Op vide cover note no.177495 issue on 04.04.2010 covering all the risks as per the policy no.10/740 and complainants being legal heirs of deceased Hari Kumar filed a claim before the OP but the did not take any action rather linger on the same on one pretext of the other. As such, the complainants has prayed that there is deficiency  in service on the part of OP. Hence, the present complaint.

2.                     Upon notice, Op appeared through counsel  and tendered reply raising preliminary objection qua maintainability of complaint, jurisdiction and cause of action etc. On merits, it has been admitted that Shri Hari Kumar , husband of complainant no.1 and father of complainants No.2 & 3 was owner of three wheeler bearing regn. No.HR37B-7584 which was insured  with the Op for the period from 05.05.2010 to 04.05.2011. It has been urged that on 10.10.2010, Hari Kumar was repairing his three wheeler and his minor son Inderjit Singh aged about 12 years was standing near the three wheeler  who gave speed to the vehicle while driving the same and it reversed back and iron strip  attached with the vehicle struck with forehead of Hari Kumar  and he sustained injuries.  It has been urged that Inderjit Singh minor son of Hari Kumar was driving the vehicle which is violation of Motor Vehicle Act. Shri Hari Kumar was not travelling in the three wheeler and was sitting behind side of it and Inderjit Singh was not having any valid license. It has been denied that the insurance policy was covering all the risks. The OP has submitted that vide letter dated 13.09.2011, claim of complainants has already repudiated.   Rest of the contents of complaint have been denied and prayed for dismissal of complaint with special costs.

3.                     To prove their version, counsel for complainants tendered  affidavit of complainant Mohinder Kaur as Annexure CW1/A alongwith documents as Annexures C-1 to C-23 and closed their evidence.  On the other hand, counsel for Op tendered affidavit Annexure RX alongwith documents Annexures R-1 to R-18 and closed their evidence.

4.                     We have heard learned counsel for the parties and gone through the record very carefully.  Counsel for complainant argued that husband of complainant no.1 Hari Kumar was owner of a three wheeler bearing regn. No.HR37B-7584 which was insured with Op for the period from 05.05.2010 to 04.05.2011 covering all the risks as per the policy.  On 10.10.2010,  Hari Kumar wanted to start his three wheeler by pulling rope, suddenly the three wheeler came in back side and hit him and as a result of which, he received severe injuries on his person  including head injury so he was taken to N.P. Hospital Ambala City and  then referred to PGI, Chandigarh where he died in the night of 10.10.2010.  Complainants being legal heirs of Hari Kumar submitted a claim with Op but the repudiated the same without any reason or rhyme.

                        On the other hand, counsel for OP argued that Hari Kumar , husband of complainant no.1 was owner of three wheeler bearing regn. No.HR37B-7584 which was insured  with them for the period from 05.05.2010 to 04.05.2011 and on 10.10.2010, Hari Kumar was repairing his three wheeler and his minor son Inderjit Singh aged about 12 years gave speed to the vehicle while driving the same and it reversed back and iron strip  attached with the vehicle struck into the forehead of Hari Kumar  and he sustained injuries which was violation of Motor Vehicle Act as well as terms and conditions of the policy. So, vide letter dated 13.09.2011, claim of complainants was repudiated and as such, there is no deficiency in service on their part.

5.                     After hearing learned counsel for the parties and going through the record, it is not disputed that the vehicle bearing regn. No. HR37B-7584 was insured  with OP for the period from 05.05.2010 to 04.05.2011. Perusal of document Investigation Report (Annexure  R-1) reveals that the surveyor so appointed by OP has opined that date, time and place of accident seems to be genuine. Insured and owner of three wheeler was Mr. Hari Kumar at the time of accident.  But the three wheeler was being reversed by son  of insured who is minor and not having driving licence.  Moreover, Hari Kumar is having DL for HMV only not for three wheeler and Hari Kumar was also not travelling in the three wheeler when he was hit by it. He was neither any one driving three wheeler nor he was occupants of three wheeler, so the claim seems to be not admissible under terms &conditions of the policy”. The main contention of Op is that insured/deceased Hari Kumar was repairing his three wheeler and he instructed his minor son Inderjit Singh to gave speed to the three wheeler and  because of which the vehicle became reversed back and hit Hari Kumar insured.  The contention of the OP is not tenable since Inderjit Singh gave speed to the three wheeler on the instruction of insured Hari Kumar and moreover giving speed  to a vehicle does not make it in running condition either back or front side. It has come on record that the vehicle became back after giving of speed to it but without placing the vehicle in gear mode, it cannot run and in the present case vehicle has reversed back, so there may be some defect in the vehicle which caused the vehicle to move back side and thereby insured/deceased Hari Kumar sustained injuries. We have also perused the dictionary meaning of word ‘Accident’ which says “an unpleasant event, especially in a vehicle, that happens unexpectedly and cause injury or damage: a car/road/traffic accident and happened by chance”.  Meaning thereby that the incident took place unexpectedly or happened by change i.e. tantamount to accident and there is no negligence on the part of the  insured/deceased Hari Kumar.  So, in our view, it is a case of accident and not of negligence on the part of insured Hari Kumar.  Perusal of document Annexure R-8 reveals that the insured was covered  for personal accident risk and for which he has paid Rs.100/- with the Ops, and complainant has claimed Rs.2.00 lac  being personal accident claim of deceased, so the LRs of the complainant are entitled for the same and the same has not been disputed by the OP in their written statement. Accordingly we allow the present complaint and direct the Op to comply with the following directions within thirty days from the date of receipt of copy of the order:- 

(i)        To pay a sum of Rs.2,00,000/- to the complainants in equal share alongwith interest @ 9% per annum  from the date of filing of the complaint till actual realization. However, it is made clear that shares of  complainants No. 2 & 3 (minors namely Jyoti Devi & Inderjit Singh respectively) be got deposited in any Nationalised Bank in the shape of FDR till they attain majority.

(ii)       Also to pay a sum of Rs.5000/- as costs of litigation.

 

                        Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to the record room.

                                                                                                    Sd/-

ANNOUNCED ON :21.10.2016                                         (D.N. ARORA)

                                                                                                   PRESIDENT  

                                                                                                        Sd/-

                                                                              (PUSHPENDER KUMAR)

                                                                                                       MEMBER