Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 326
Instituted on : 29.04.2021
Decided on : 31.10.2023
1. Smt. SushilaDevi(Age 41 years) wd/o Late Pankaj Malik
2. ManavMalik((Age 16 years) s/o Late Pankaj Malik.
3. Naman Malik((Age 15 years) minor d/o Late Pankaj Malik
Minors through their mother Smt. Sushila Devi as next friend and legal guardian
4. NirmalaMalik(Age 61 years) w/o Satyawan Malik
All Rs/o H.No.43-P, Sector-2, Rohtak, Haryana.
..............Complainant.
Vs.
- Ombir s/o Fateh Singh R/o H.No.43-P, Sector-2, Rohtak, Haryana(Owner of Skoda Rapid Car bearing regn. no.HR-26CN-5814)
- United India Insurance Co. Ltd. Through its Divisional Manager, Office at D-Park, now known as Bapu Park, Delhi Rohtak Road, Rohtak(Insurer of Skoda Rapid Car bearing Regn. no.HR-26CN-5814 vide Policy Certificate No.1112003119P107801569 valid from 17.09.2019 to 16.09.2020.
……….Opposite parties.
COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT,2019.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER
Present: Sh.JoshiAhlwat Advocate for complainant.
Sh.MandeepPunia Advocate for opposite party No.1
Sh.R.K.Bhardwaj Advocate for opposite party No.2.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per the complainants are that complainant no.1 is widow of Pankaj Malik(since deceased) and complainants no.2 & 3 are his son and daughter respectively and complainant no.4 is his mother. On 01.09.2020 when Pankaj Malik alongwith his colleague was coming to Rohtak from his workplace, GSSS Panipat in his car bearingRegd. No.HR-26CN-5814, a driver of Haryana Roadways Bus bearing regn. no.HR-69C-2323while driving the bus in rash and negligent manner, struck against the car of complainant after crossing divider & after coming on wrong side. Due to the impact, Pankaj Malik and his colleague Smt. Anita succumbed due to the injuries sustained by them in the alleged accident. The matter was reported to the police by one HariSwaroop and FIR No.0338 dated 01.09.2020 was registered at P.S.Sadar, Rohtak. It is worth mentioning here that Sh. PankajMalik(since deceased) has taken the aforesaid car with prior permission of respondent no.1(who is registered owner of said car and brother in law of Pankaj Malik) and he was driving the car at the time of accident. As such, the accident in question was happened with involvement of Skoda rapid Car of the complainant, hence the respondent no.2 being the insurer of said car, is liable to pay the amount of Personal Accident Cover Premium i.e. Rs.15 lakh to the complainants. It is further submitted that the Hon’ble Apex Court and various High Courts in catena of judgments have held that a borrower of vehicle shall be deemed to have stepped into the shoes of owner and if he dies in an accident while driving the said vehicle, then his legal heirs shall be entitled to the amount of Personal Accident Cover Premium and the insurer of vehicle in question, shall be liable to pay the same. Complainants have duly intimated the respondent no.2 and completed all the required formalities but despite his repeated requests, the claim has not been paid in favour of the complainants. The act of opposite party No.2 is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite party no.2 may kindly be directed to pay the claim of Rs.1500000/- alongwith Rs.100,000/- as litigation expensesalongwith interest @ 24% p.a. to the complainant.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party no.1in its reply has admitted that on said fateful day i.e. 01.09.2020, Pankaj Malik since deceased had taken the Skoda carbearing regn.No.HR-26CN-5814 with prior permission of the opposite party No.1. It is also admitted that the said accident took place with the involvement of aforesaid Skoda car and respondent no.2 being its insurer is liable to pay the amount of Personal Accident Cover Premium(PACP) i.e. Rs.1500000/- to the complainants and the complainants being family members have suffered a great mental agony and pain. The respondent no.2 cannot absolve from its liability to pay the aforesaid amount to the complainants.
3. Opposite party No.2 in its reply has submitted that the real facts are that Pankaj Malik was not the owner of the car bearing no.HR-26CN-5814. Ombir was the owner of said car. Pankaj Malik has no concern with the said car. He is only borrower of the car. It is wrong that respondent no.2 being the insurer of the said car is liable to pay the claim amount of Rs.15 lacs to the complainants. According to the terms and condition of the PACP only owner of the vehicle if he dies while driving his vehicle then his LRs are entitled for claim and not a borrower of the vehicle. All the other contents of the complaint were stated to be wrong and denied and opposite party no.2 prayed for dismissal of compliant with costs.
3. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C8 and closed his evidence on 29.07.2022. Ld. counsel for the opposite party No.1 in his evidence has tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R2 and closed his evidence on 16.05.2023.Ld. counsel for the opposite party No.2 in his evidence has tendered affidavit Ex.RW2/A, documents Ex.R2/A to Ex.R2/D and closed his evidence on 20.01.2023.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. In the present case it is not disputed that as per insurance certificate Ex.C5, the vehicle bearing no.HR-26CN-5814 was insured with the opposite party No.2. It is also not disputed that as per copy of FIR No.0338 dated 01.09.2020 placed on record Ex.C1, the alleged vehicle met with an accident and as per Post Mortem Report Ex.C2 Sh. Pankaj Malik had died due to injuries sustained in the alleged accident. The legal heirs of the deceased Pankaj Malik has filed the claim of Rs.15 lac under Personal Accident cover Premium.Ld. counsel for the complainant has placed reliance upon the law of Hon’ble Supreme Court of India in (2020-1)197 PLR 395 (SC) titled as Ramkhiladi&Anr. Vs. United India Insurance Company &Anr.and law of Hon’ble High Court of Punjab & Haryana 2022(3)PLR149 in FAO No.762 of 2021 in case titled as New India Assurance Co Ltd. Vs. Birmati and others. On the other hand, contention of ld. Counsel for the opposite party No.2 is thatPankaj Malik was only borrower of the car bearing no.HR-26CN-5814 and Ombir was the owner of said car. According to the terms and condition of the PACP only owner of the vehicle if he dies while driving his vehicle then his LRs are entitled for claim and not a borrower of the vehicle. Ld. Counsel for the opposite party no.2 has also placed reliance upon the law of Hon’ble High Court of Punjab & Haryana at Chandigarh in 2021ACJ393 titled as DeepikaShrma and others Vs. Deepak and another and 2019ACJ1640 titled as United India Insurance Co. Ltd. Vs. Sumitra and another.
6. We have perused the documents placed on record by both the parties. No doubt that PankajMalik(since deceased) has borrowed the vehicle from Ombir i.e. respondent no.1 and he died while driving the insured vehicle. It is also on record that as per policy Ex.R2/A, opposite party No.2 being its insurer is liable to pay the amount of Rs.1500000/- under the head ‘Personal Accident Cover for Owner-Driver’. In this regard we have placed reliance upon the judgment of Hon’ble Supreme Court of India in (2020-1)197 PLR 395 (SC) titled as Ramkhiladi&Anr.(Supra)Whereby Hon’ble Supreme Court has held that: “Motor Vehicle Act, 1988 (59 of 1988) Section 163(A)-Owner-driver-In the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs.1 lakh-Deceased driver of motor cycle borrowed by him will be in the shoes of the owner-therefore, the deceased, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, as per the contract of insurance”. In view of the aforesaid law which is fully applicable on the facts and circumstances of the case, it is observed that the deceased driver Pankaj Malik also stepped into the shows of owner. Therefore, L.Rs of the deceased are entitled for the claim amount underPersonal Accident Cover and opposite party No.2 is liable to pay the claim amount to the complainants. In view of the aforesaid judgment of Hon’ble Apex Court, the law cited above by ld. Counsel for the opposite party No.2 are not fully applicable on the facts and circumstances of the case.
7. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.2to pay a sum of Rs.1500000/-(Rupees fifteen lacs only)alongwithinterest @ 9% p.a from the date of filing the present complaint i.e.29.04.2021till its realization to the complainant. Opposite party No.2 is further directed to pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to theL.Rs. of deceased Pankaj i.e. 30% of the awarded amount shall be paid to the wife of deceased namely Sushila Devi, 25% to son of deceased namely Manav Malik, 25% to daughter of deceased namely Naman Malik and remaining 20% to mother of deceased namely Nirmala Malik within one month from the date of decision.It is made clear that the share of Namam Malik i.e. daughter of deceased shall be deposited in any nationalized bank in the form of FDR and shall be paid to her on attaining the age of majority.
8. Copy of this order be supplied to both the parties free of costs.File be consigned to the record room after due compliance.
Announced in open court:
31.10.2023.
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Nagender Singh Kadian, President
…………………………………
TriptiPannu, Member.
…………………………………
Vijender Singh, Member.
