PER SHRI P.N.KASHALKAR, HON’BLE JUDICIAL MEMBER

            Heard Adv.Quazi for the appellant. Adv.Pathade used to appear for the Respondent.  From last two dates he has not appeared in the appeal. He was knowing that appeal is pending in this circuit bench. We are inclined to proceed with the appeal.

            Upon hearing Adv.Quazi, we are finding that complainants 1 & 2 had filed Consumer Complaint bearing No.CC/05/17 claiming Rs.2 lac under personal accident benefit policy.  According to complainants, husband of complainant No.1 & father of Complainant No.2, Mr.Ashok Borkar was owner and driver of Tempo Trax bearing No.MH 31/G 89 which was insured with the Opponent Insurance Company for the period 20/7/2004 to 19/7/2005. The policy was in the name of deceased covering only the third party risk. The Opponent Insurance Company had also issued a compulsory Personal Accident Benefit to the owner/driver for which extra premium of Rs.100/- was charged in the policy. On 8/11/2004, vehicle of the deceased met with an accident and in the accident deceased lost his life. The offence was registered in police station, Kondhali vide offence No.192/2004 against the driver of the truck for rash driving and dashing with the vehicle of the deceased. Complainant lodged claim but it was repudiated on the ground that Insurance Company is not liable to pay any claim under the personal accident benefit policy. Complainant, therefore, filed consumer complaint claiming Rs.2 lac towards personal accident benefit under the policy.

            The opponent filed reply and contested the matter. According to opponent, the deceased was owner/driver of the vehicle which was insured with them under third party risk cover. But it denied that they had provided personal accident benefit to the owner/driver of the vehicle. It also denied that it had charged extra premium of Rs.100/- under the head Compulsory personal accident cover and, therefore, it denied the liability of payment of claim in respect of the driver and owner of the vehicle. Opponent contended that it was the policy to cover only third party risk.

Forum below, however, in the impugned judgment held that Insurance Co.was liable to pay a sum of Rs.2 lac towards the personal accident cover because that cover was included in the policy issued to the deceased, and, therefore, it partly allowed the complaint and directed the appellant insurance company to pay Rs.2 lac alongwith 9% interest from the date of repudiation till payment besides compensation and cost. Aggrieved by the said judgment, insurance company has filed this appeal.

We heard submissions of Adv.Quazi for the appellant. None is appearing for the Respondent. Adv.Quazi  has drawn our attention to the policy certificate at page 52 of the appeal compilation. We perused the policy cover note which clearly mentions that the policy has been issued to provide third party risk only and that for personal accident cover for owner/driver of the vehicle no premium is recovered in the premium charged to the complainant. In the left hand side of the policy, it has been categorically stated that no own damage risk is covered under the policy. When this is the condition specifically stipulated in the policy document, the complainant can not be heard to say that the deceased Ashok Borkar was covered under the personal accident benefit cover under the policy issued by the Opponent insurance company.

It is also pertinent to note that in the proposal form filled in by Ashok Borkar, which is at page 50-51, we can very well notice that he had clearly stipulated  in answer to question No.24 and 25 that he did not wish to cover owner/driver of the vehicle under the personal accident benefit cover. In the circumstances, the forum below erred in law in giving the benefit under the policy to the respondents presuming that Ashok Borkar was covered under personal accident benefit cover which was included in the policy purchased by him. There is overwhelming evidence to show that Ashok Borkar had not opted for personal accident benefit and for that perpose no extra premium was charged by the Insurance Company under that head. In the circumstances, the order passed by the forum below allowing the complaint is bad in law. By allowing this appeal, the same will have to be quashed and set-aside. Hence the order…

                                                            ORDER

1)     Appeal is allowed.

2)     The impugned judgment and award is quashed and set-aside. The complaint is dismissed.

3)     No order as to cost.

4)     The amount of Rs.25,000/- deposited by the appellant in Additional District Forum, Nagpur be refunded by the said District Forum to the appellant.

5)     Inform the parties and the forum accordingly.

Delivered on 08/07/2011.