Complainant Aarti had filed the present complaint U/s 35 of the Consumer Protection Act, 2019 against the opposite parties and praying that the opposite parties be directed to pay the personal accident assured amount of Rs.15,00,000/- alongwith interest @ 18% per annum from the date of intimation of death of insured/deceased Mulkh Raj, till its realization. Opposite parties may also be burdened with an amount of Rs.50,000/- as compensation on account of harassment and mental agony and Rs.30,000/- as litigation expenses and any other relief which this Hon'ble Commission may deems fit, be passed in favour of the complainant and against the opposite parties by allowing this complaint, in the interest of justice and fairplay.  

2.       The case of the complainant in brief is that Truck Tralla bearing registration No.PB-06-K-2687 was insured by the deceased husband of the complainant Sh.Mulkh Raj with the opposite party No.1 who issued the insurance policy No.105010/31/21/014259 which was valid from 15.02.2021 to midnight 14.02.2022 and charged the premium of Rs.52,724/-. It was pleaded that the above said vehicle met with an accident on 16.09.2021 near Mahakali Hotel National Highway No.62 District Sarohi Rajasthan and in this accident husband of complainant was died who was the owner cum driver of the said vehicle and intimation regarding the accident and death was given to the opposite parties. It was further pleaded that in the above said insurance policy opposite party charged Rs.315/- from the insurer under the head GR36A P.A. for owner-driver and husband of the complainant was covered for Rs.15,00,000/- for owner driver (CSI) and in the column of nominee for owner/driver the name of complainant was mentioned in the policy and the nominee relationship was shown as spouse alongwith aged as of 38 years. A letter was written by the complainant to the opposite parties for the settlement of the personal accident claim as per above said insurance policy and in reply to this opposite party wrote a registered A.D. letter dated 15.12.2021 in which they admitted the receiving of intimation regarding death of Sh.Mulkh Raj owner-driver of the vehicle insured under the above said insurance policy and requested the complainant to send the following documents to settle the claim. It was also pleaded that in reply to the letter dated 15.12.2021 of the opposite parties all the required documents alongwith required affidavit were submitted by the complainant to the opposite parties vide registered letter dated 24.01.2022 to settle the claim. Complainant again wrote a letter dated 18.04.2022 to the opposite parties for the settlement of personal accident claim which was covered under the policy in question in which she stated that she is leading a miserable life after the death of her husband who was the only bread earner in her family and her children are minor and there is no male member in her family to support her and her family financially but the opposite parties did not pay any heed to the above said letters dated 24.01.2022 and 18.04.2022. A legal notice dated 28.05.2022 was also served by the complainant through her counsel to the opposite parties for the settlement of claim but inspite of submitting all the documents, letters and legal notice opposite parties did not settle the personal accident claim of deceased Mulkh Raj. It was next pleaded that complainant time and again visited the office of opposite party No.1 at Pathankot but they put off the matter on one pretext or the other and told the complainant that claim is to be settled by their head office i.e. opposite party No.2 and as such the act of the opposite parties by not settling the personal accident claim of the complainant is a clear cut deficiency in service on their part and complainant also suffered harassment and mental agony due to this act of the opposite parties, hence this complaint.

3.       Upon notice opposite parties appeared through their counsel and filed written reply by taking preliminary objections that the    complainant has no cause of action to file the present complaint; that the insurance is contract between the two parties and both the parties are bind with the terms and conditions of the policy; that the liability of the insurance is only as per policy and its terms and conditions and in the present case there is breach of the terms and conditions of the policy and the provisions of the Motor Vehicle Act (MVA) and as such there is no liability of the insurance company; that there is no deficiency in services on the part of insurance company i.e. opposite parties. It was stated that commercial vehicle package policy was issued in favour of the insured and policy alongwith the terms and conditions was duly provided to the insured for a period from 15.02.2021 to 14.02.2022 in the name of Mulakh Raj alongiwith personal accident cover for a vehicle having registration No.PB-06-K-2687. It was further stated that claim was filed by the complainant to get the personal accident claim and intimation regarding death of insured was also given by her but after going through the documents it had come out that the accident took place when insured alongwith his conductor was going on his vehicle from Gujarat to Jammu by taking drums of chemical in the truck and during their journey the truck broke down and insured got out and checked the engine of the truck, when the gas tanker dashed the insured vehicle from behind due to which the front part of the truck dashed into the insured and he did on the spot. It was also stated that from above facts it shows that the deceased was carrying drums of chemical in his truck at that time as such he was carrying hazardous goods and such as per Motor Vehicle Act (MVA) the driving license must contain endorsement of carrying hazardous goods but there was no such endorsement on the driving license of the deceased from which it clearly shows that deceased was not having valid and effective driving license at the time of alleged accident. It was next stated that as per the terms and conditions of the policy and as per the provisions of Motor Vehicle Act (MVA) deceased must possess valid and effective driving license to get the personal accident claim due to which claim was not paid and was made as no claim. On merits, it was stated that the policy was issued and intimation regarding the accident was also given and claim was also filed by the complainant for getting personal accident claim but due to non-availability of valid and effective driving license the same was not paid and made no claim as personal accident coverage was given as per the terms and conditions of the policy. It was further stated that the letters were sent by the complainant but all the requisite formalities were not completed by her. All other averments made in the complaint have been specifically denied and lastly prayed for dismissal of complaint with costs.

4.       To prove the case counsel for the complaint had filed affidavit of complainant Ex.CW-1A alongwith copies of documents Ex.C1 to Ex.C15.

5.       On the other hand counsel for the opposite parties had filed affidavit of Amit Vyas authorized signatory Ex.OPW-1,2/A alongwith copies of documents Ex.OP-1,2/1 to Ex.OP-1,2/4.

6.       Rejoinder filed by the counsel for the complainant.

7.       Written arguments filed by the complainant but not filed by the opposite parties.

8.       We have carefully examined all the documents/evidence produced on record for its contained statutory merit and have also judiciously considered and perused the arguments duly put forth by the learned counsels for the parties.

9.       Counsel for the complainant has argued that as per the policy of insurance Ex.C1, the deceased Mulkh Raj who was owner-cum-driver of Truck Tralla bearing registration No.PB-06-K-2687 had paid premium of Rs.315/- for owner-driver and since said owner-driver namely Mulkh Raj died on 16.09.2021 in the accident, as such the complainant being widow and nominee as per the policy is entitled to receive personal accident insurance claim to the tune of Rs.15,00,000/- from the opposite parties. It is further argued that the insurance company has repudiated the claim vide letter Ex.C15 with the reason that the driving license of deceased Mulkh Raj was not having endorsement of hazardous goods and since chemical was being carried in the truck at the time of accident as such the claim was repudiated. Ld. counsel for the complainant has argued that as per FIR Ex.C2 when the truck met with an accident, the same was standing parked on the road in breakdown condition and Mulkh Raj was trying to repair the truck and was hit by another truck causing accident and death. Since the truck was standing as such it cannot be said that the claim can be denied on the ground that there was no endorsement of hazardous goods. Repudiation of claim amounts to deficiency in service and counsel for complainant has relied upon order of Hon'ble Rajasthan State Consumer Disputes Redressal Commission, Jaipur in 2014 (3) CLT Page 579 in  which it has held that "Consumer Protection Act, 1986, Section 2(1) (g)-Insurance claim (Vehicle)-Driving licence-The vehicle was insured to carry hazardous goods-The vehicle met with an accident-The claim was rejected by the Insurance Company on the ground that driver of the vehicle at the relevant time was not having a valid driving licence for driving the vehicle carrying hazardous goods since no such endorsement was made in the driving licence of the driver-Plea of complainant that since the vehicle was empty at time of accident as such the endorsement of driving having hazardous goods was not required on the driving licence of the driver-Held-The vehicle was empty at the time of accident and the learned counsel for the respondent also could not show any law that even driving an empty vehicle if the insured not carrying hazardous goods the particular endorsement in the driving licence is necessary-The basic object of such requirement is only when the driver is actually carrying hazardous goods, he suppose to know all the norms in case of emergenicies-Insurance company was not justified in rejecting the entire claim only on such technical ground. (Para 5)"and has further relied upon judgment of the Hon'ble Supreme Court of India reported in 2022 CPJ 17 (SC) it has been held as under:- (iii) Insurance - Duty of Disclosure, Good Faith and Notice - Principles governing disclosure, good faith and notice are founded on common law principle of fairness - High standard of good faith disclosure and due compliance of notice is required on part of insurer, keeping in view unique nature of insurance contract - Act of good faith on part of insurer starts from time of its intention to execute contract - Disclosure should be norm and what constitutes material fact requires liberal interpretation - Foremost duty of insurer to give effect to due disclosure and notice in its true letter and spirit - When exclusion clause is introduced making contract unenforceable on date on which it is executed, much to knowledge of insurer, non-disclosure and failure to furnish copy of said contract by following procedure required by statute, would make said clause redundant and non-existent.  (Paras 14, 15) (iv) Insurance Regulatory and Development Authority (Protection of Policy Holder's interests, Regulation, 2002 - Contract Act, 1872 - Sections 2(i), 10, 17, 18, 19 - Insurance - Exclusion clause - Doctrine of blue pencil - Applicability- There is onerous responsibility on part of insurer while dealing with exclusion clause - Insurer is statutorily mandated as per Clause 3(ii) of Regulation to effect that insurer and his agent are duty bound to provide all material information in respect of policy to insured to enable him to decide on best cover that would be in his interest - Clause 4 enjoins duty upon insurer to furnish copy of proposal form within  thirty days of acceptance, free of charge - Any non-compliance, obviously would lead to irresistible conclusion that offending clause, be it exclusion clause, cannot be pressed into service by insurer against insured as he may not be in knowhow of same - In such situation, doctrine of "blue pencil" which strikes off offending clause being void ab initio, has to be pressed into service - When Court of law is satisfied that fraud, or misrepresentation resulted in execution of contract through suppression of existence of mutually destructive clause facilitating window for insurer to escape from liability while drawing benefit from consumer, resultant relief will have to be granted. (Paras 21, 22, 27) and counsel for the complainant has also argued that the alleged terms and conditions which are being relied upon by opposite parties to deny the claim were never supplied to the insured and only policy document Ex.C2 comprising of two pages was supplied and as such complainant and deceased were not bound by the terms and conditions now introduced by the opposite parties.

10.     On the other hand Ld. counsel for the opposite parties has argued that admittedly the deceased was having the driving license copy of which is Ex.OP-4 which clearly shows that there is no endorsement of hazardous good as such the deceased was not having valid and effective driving license at the time of accident and since the chemical was loaded in the truck as such the claim was rightly repudiated vide letter Ex.C15.

11.     We have heard the Ld. counsels for the parties and gone through the record. It is admitted fact that deceased Mulkh Raj was owner of truck bearing registration No.PB-06K-2687 and the said truck was insured with the opposite vide policy of insurance Ex.C1 which was valid from 15.02.2021 to 14.02.2022. It is further admitted fact that opposite parties had received premium of Rs.315/- for personal accident for owner-driver. It is further admitted fact that on 16.09.2021 driver-cum-owner of the truck was carrying chemical in the truck and met with an accident on 16.09.2021 while trying to repair the truck. It is further admitted fact that there is no endorsement of hazardous goods on the driving license of the deceased Mulkh Raj owner-cum-driver of the truck which is clear from Ex.OP-1,2/4. The only question before this Commission is whether the claim can be repudiated when the truck was in parked condition and was under repair and owner-cum-driver died in the accident while repairing the same.

12.     We are of the view that no doubt there is no endorsement of hazardous goods on the driving license Ex.OP-1,2/4, however perusal of FIR Ex.C2 shows that the truck was parked in a breakdown condition at the time of accident and owner-cum-driver Mulkh Raj was trying to repair the defect which shows that although chemical was loaded in the truck but the loading of chemical had not played any roll in the accident which took place on 16.09.2021. We have further relied upon judgment of Hon'ble Rajasthan State Consumer Disputes Redressal Commission, Jaipur as referred above. In the said judgment also Hon'ble State Commission has held that at the time of accident truck was empty and as such endorsement of hazardous goods was not required. The contention of the counsel for the opposite parties is that as per the policy terms and conditions Ex.OP-1,2/1 and Motor Vehicle Act the endorsement was must. However, counsel for the complainant has placed on file copy of policy of insurance Ex.C1which clearly shows that no such terms and conditions were supplied or explained to the insured at the time of issuance of the policy. As such opposite parties could not bind the complainant under the policy terms and conditions. We have also relied upon the judgment of Hon'ble Supreme Court of India as referred above. As such this Commission is of the view that since the truck was parked at the time of accident there is no nexus between the accident and chemical being carried in the truck at the time of accident. As such repudiation of the claim by the opposite parties vide letter Ex.C15 amounts to deficiency in service. Accordingly, the present complaint is partly allowed and opposite parties are directed to pay Rs.15,00,000/- as personal accident claim to the complainant alongwith interest @ 9% P.A. from the date of filing of the complaint till its realization alongwith Rs.10,000/- as compensation for mental tension and harassment within 30 days from the receipt of copy of this order. 

13.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

14.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room. 

                                (Lalit Mohan Dogra)

                                                                        President   

Announced:                                          (B.S.Matharu)

Aug. 08, 2023                                               Member

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