Complainant Prabhu Masih through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite party be directed to make the payment of Medical Insurance Claim of Rs.42,500/- along with interest @ 18% Per Annum. He has also claimed Rs.1,00,000/- for the disability and harassment including litigation expenses all in the interest of justice.
2. The case of the complainant in brief is that Shinder Masih son of Prem Masih resident of Village Zafferwal had got Auto Rickshaw make “Mahindra and Mahindra” bearing registration No.PB-06-L-8657 from the opposite party. The said vehicle was having Chassis No.AOG0362041 and Engine No.MAILE2FHSA5437883 and the same was insured from 24.9.2012 to midnight of 23.9.2013. It was pleaded that complainant was the driver of the vehicle in question but unfortunately on 17.1.2013 the said vehicle was met with an accident and FIR No.4 dated 17.1.2013 Under Section 279, 304-A, 337 and 338 I.P.C. was got registered in Police Station Kalanaur against the complainant. It was further pleaded that said accident took place due to fault of other party and it shows that complainant was driving the Auto Rickshaw on that day as driver. It was also pleaded that complainant had been acquitted by the Court of Sh.Palwinder Singh, JMIC, Gurdaspur vide Judgment dated 2.4.2014. It was pleaded that due to the above said accident complainant suffered multiple injuries and became handicap and is unable to walk without support. It was further pleaded that the whole livelihood of the complainant and his family depends on said Auto Rickshaw but due to inability to walk, complainant and his family leading hard life. It was also pleaded that at the time of accident Shinder Masih was in foreign country whereas the complainant remained bed ridden for so many days due to injuries. The son of the complainant approached the opposite party and requested them to pay the claim but they assured him that when complainant will be fit, they will pay the claim to them and there is no need to worry as they are bound to pay the same being Insurance Company. It was also pleaded that family of the complainant believed on their assurance and after-ward when complainant approached them to get his claim they refused to pay the same until the decision of the criminal case. Complainant had been acquitted from the criminal case but they refused to pay the insurance claim on false excuses, hence this complaint.
3. Upon notice, the opposite party appeared through their counsel and filed the written reply by taking the preliminary objections that complainant has no cause of action and no locus standi to file the present complaint as the vehicle in question was in the name of Sinder Masih and even the R.C. of the same in his name so the contractual relationship is between Sinder Masih and Insurance Company and not the complainant Prabhu Masih who was only the driver of the Auto Rickshaw and alleged to be insured with the opposite party. There is no deficiency in services on the part of the opposite party and the claim has rightly been repudiated and the letter dated 25.10.2013 was also sent to Sinder Masih at his given address. The fact of the matter is that alleged loos took place on 17.1.2013 but the intimation of the same was given after a huge delay i.e. on 17.9.2013 due to which insurance company had lost its right to early investigate the matter and in this way there is breach of the terms and conditions of the policy. As per the condition no.1 notice shall require to be given to the Company immediately after the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. It is necessary for the insured to give information to the Company in writing regarding any loss, occurrence and enquiry and cooperate with the Company to secure from conviction but the insured breached the terms and conditions of the policy and failed to give intimation on time due to which the claim had been repudiated. On merits, it was denied that vehicle in question was in the name of the complainant and alleged accident took place on 17.1.2013. It was admitted that due to breach of terms and conditions of the policy the claim had been repudiated. Complainant has no locus standi to file the present as he is only the driver of the vehicle. It was further denied that at the time of accident Sinder Masih was in foreign country whereas the complainant remained bed ridden for so many days due to injuries and his son requested them to pay the claim and they assured him for the same. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed.
- Complainant tendered into evidence his own affidavit Ex.C1, affidavit of Ashok Kumar Ex.C5 alongwith other documents Ex.C2 to Ex.C4 and Ex.C6 and closed the evidence.
- Opposite party tendered into evidence affidavit of Raj Kumar Branch Manager Ex.OP-1 alongwith other documents Ex.OP-2 to Ex.OP-7 and closed the evidence.
6. We have duly considered the pleadings of both the parties; heard the arguments advanced by their counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purpose of adjudication of the present complaint.
7. We find that the accidented vehicle (on the date of accident) was registered in the name of one Shinder Masih of Jaffarwal and its insurance was also purchased in his name from the OP Insurers. The complainant has claimed to be ‘driving’ the vehicle on the date of the accident but he has failed to prove himself the ‘paid driver’ in employment of the vehicle-owner, on the record of the proceedings. The survey report Ex.OP4 does not ‘name’ the complainant as ‘paid driver’ of the accidented vehicle. On the other hand, the court orders Ex.C6 in criminal case # 160 do not state that the complainant Prabhu Masih was driving the vehicle at the time of accident and rather ‘acquit’ him giving him the ‘benefit of doubt’. The complainant has failed to prove the ‘consumer’ relationship with the OP insurers as envisaged under the Act and thus he is not entitled to file the present complaint. The Vehicle owner/ Policy holder would have been the appropriate person to file the insurance claim favoring the ‘driver’ in employment and as such the present complainant is neither authorized to file the consumer complaint nor does he have any locus-standi for the same.
8. In the light of the all above, we find the complainant to be incompetent to file the present complaint and thus ORDER for its dismissal but with no order as to its costs. The complainant shall however, be at liberty to avail himself of any other legal remedy available in law to be pursued under law, if he so desires or is so advised.
9. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
AUG 20, 2015 Member.
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