Punjab

Sangrur

CC/1180/2021

Palo Kaur - Complainant(s)

Versus

TATA AIG General Insurance Company Ltd. - Opp.Party(s)

Sh. Tribhuvan Singh Bains

15 Apr 2024

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SANGRUR .

          

                                            Complaint No. 1180

                                          Instituted on:   22.09.2021 

                                          Decided on:     15.04.2024

Palo Kaur W/o Sh. Geja Singh earlier wife of Late Sh. Tehla Singh, Resident of Village Ladal-148031, District Sangrur.       

                                                          ..Complainant.     

                                                 Versus

1.       TATA AIG General Insurance Company Limited, 301-308, 3^rd Floor, Aggarwal Prestige Mall, Plot No.2, Road No.44, Near M2K Cinema Rani Bagh, Pitampura, New Delhi through its Regional Manager.

2.       Kotak Mahindra Bank, SCO 9 &10, Kaula Park, Sangrur through its Branch Manager.

                                            ….Opposite parties 

 

QUORUM                                         

JOT NARANJAN SINGH GILL: PRESIDENT

SARITA GARG                             : MEMEBR

KANWALJEET SINGH             : MEMBER

 

 

For the complainant  : Shri Udit Goyal Advocate              

For the OPs              : Shri Amit Goyal,Advocate

        

ORDER

 

KANWALJEET SINGH, MEMBER

 

1.               The complainant has alleged in this complaint that the son of complainant namely Gursangat Singh obtained MotorCycle insurance  policy bearing no. 3192437876/00000/00 which was valid for the period of 01.09.2020 to 31.08.2025. Except the policy no other terms & conditions of the policy were supplied to the complainant. The deceased Gursangat Singh paid the premium of Rs. 4586/- including compulsory personal accident of Rs. 330/-, under which the son of complainant was insured for an amount of Rs. 15,00,000/- . The complainant was nominee in the policy in question.  On 01.05.2021 son of complainant was going to Lehra while driving motorcycle bearing no. PB-13BK-4227 for work. At about 7.30 A.M. when he reached half kilometer ahead of village Ladal, then suddenly a stone came under the tyre of motorcycle. As a result the motorcycle got unbalanced and his motorcycle struck with one Jony s/o Bhola Singh. Thereafter, his motorcycle further struck with the cemented wired pole fixed by the side of the road and due to that Gursangat Singh and Jony sustained grievous injuries and they were taken to civil Hospital Lehra by surpanch Gurnam Singh of Village Ladal. Then the Gursangat Singh was referred to the Hospital, Patiala, where he scummed to the injuries and expired. The Postmortem of the deceased was conducted in the Rajindera Hospital, Patiala. Regarding the accident DDR no. 35 dated 01.05.2021 was recorded at P.S. Lehra. After that the accident claim was lodged through his counsel notice vide dated 25.06.2021 and submitted the relevant documents for releasing the claim. The surveyor of OP’s visited to the complainant and completed all the formalities and assured the complainant that she will get the claim within 15 days but till date no amount has been released by the Ops. Being a nominee the complainant is entitled to get the benefit under policy in question. The complainant is suffering a lot of mental agony and financial loss. The Ops committed deficiency in service and unfair trade practice qua the complainant and lastly prayed that Ops may kindly be directed to release the amount of Rs. 15,00,000/- alongwith interest @ 18% p.a. from the date of submission of the claim till realization and Rs. 50,000/- to pay as compensation and to pay Rs. 22,000/- as litigation expenses.

 

 2.              Upon notice of this complaint, the opposite parties appeared and filed written version . In reply of OPs taking preliminary objection that complaint is neither maintainable nor has cause of action and locus standi to file the complaint. Complaint is premature as the claim is still under consideration and could not be settled due to non submission of required documents by the complainant despite of repeated reminders dated 05.07.2021, 13.07.2021,06.08.2021, 25.08.2021, 13.09.2021 and 28.09.2021.

3.               On merits, it is correct that the son of complainant obtained insurance for his motorcycle bearing registration no. PB-13BK-4227 and Ops issued Policy bearing no. 3192437876/00000/00 which was valid for the period of 01.09.2020 to 31.08.2021 and paid the premium of Rs. 4586/- including compulsory personal accident of Rs. 330/-. It is further admitted to be correct that the complainant was appointed as nominee under policy. In fact as per the compulsory personal accident clause of the policy, the owner-driver are insured for an amount of Rs. 15,00,000/- payable to the nominee/insured in the event of death or bodily injury resulted due to an accident involving the insured vehicle.  The terms and conditions of the policy as well as the provision of the motor vehicle act applicable strictly. The complaint is admitted to be correct to be extent that the claim was lodged by the complainant and surveyor was appointed by the Ops. Surveyor Sanjeev Verma wrote letters dated 05.07.2021 and 13.07.2021 to the complainant asking her to submit the required documents. The complaint is admitted that the Gursangat Singh was the registered owner of vehicle in question and died in an accident. Complainant had failed to submit the documents despite of repeated reminders being served to the complainant. Due to this reason the claim in question is still pending with the Ops and Ops are still ready to considered and decide the claim of the complainant subject to submission of required documents. Deceased was driving motorcycle in contravention and violation of the motor vehicle act and rules as well as the breach of policy’s terms and conditions. Compensation for PA cover shall be payable subject to condition that owner-driver holds an effective driving license , in accordance with the prevision of rule 3 of the central motor vehicles rules, 1989 at the time of accident. Hence neither there is any deficiency in service nor unfair trade practice on the part of the Ops. The remaining allegations are denied by the Ops and prayed that the complaint of the complainant may kindly be dismissed.

4.               In support to prove her case the complainant tendered into evidence her affidavit Ex.C-1 and some other documents which are Ex.C-2 and closed evidence.

5.               On the other hand, to rebut the case of the complainant, the OPs have produced in their evidence some documents i.e  Ex.Ops/2 to Ex.Ops/7  and  self attested affidavit Ex.Ops/1  and closed evidence.

6.               We have heard the learned counsel for  parties and gone through the record file carefully  with the valuable assistance of the learned counsel for the parties. During arguments the contentions of both the parties are similar to their respective pleadings, so  there is no need to reiterate the same to avoid repetition.

7.               Now, come to major controversy,  whether the complainant is liable for relief  as claimed by her in her prayer or  not?

8.               Learned counsel for the complainant during arguments has argued and more focused on this issue that it is the duty of insurance company to verify “ whether complainant having valid driving license at the time of the issuance of the insurance policy i.e. 01.09.2020? The secondary issue raised by the Ld. Counsel is that driving license having no relevancy at the time of accident. No negligence proved on the part of the complainant.

  Per contra, Ld. Counsel for Ops has argued that as per Ex. Op.3 page no.2 mentioned the driving license is mandatory. No duplicate driving license produced on record. Ex. Op.2 page no. 2 drivers clause reproduced as under :-

Drivers Clause:- Persons or classes of persons entitled to drive : Any person including the insured provided that a person driving holds and effective driving license at the time of accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective learner’s license may also drive the vehicle that such person satisfies the requirements of rule 3 of the central motor vehicles rules, 1989.

During rebuttal arguments, Ld. Counsel for complainant argued that Ops charged premium from complainant and issued a policy. No material irregularity caused in this case on the part of the complainant.

No doubt, it is admitted by ops in their reply on merits in para no.3(a) that son of complainant namely Gursangat Singh obtained insurance for his motorcycle bearing registration no. PB13-BK-4227 from the Ops vide insurance policy number 3192437876/00000/00 which was valid for the period of 01.09.2020 to 31.08.2021. Ops further pleaded that premium of Rs. 4586/- including Rs. 330/- as premium for compulsory personal accident was paid by complainant and insurance policy is subject to its terms & conditions. To trace out the varsity of truth this Commission has examined minutely the pleadings of both the parties. Ops admitted that complainant was appointed as nominee under the policy in their reply. However, Ops admitted this factum that claim was lodged by the complainant. It is not disputed the deceased Gursangat Singh was the registered owner of the vehicle in question. It is not disputed that the son of complainant died in an accident on 01.05.2021. It transpires from the perusal of Ex.C-2 page no. 12 postmortum report conducted on 02.05.2020 by Dr. Gurvinder Singh kakkar. It is writ large on the file that the pleading as well as the documents and affidavit produced by the Ops in their evidence, it is not proved that an accident (supra) occurred on the part of the driver. Furthermore, Ops had not been justified by cogent, reliable and trustworthy material evidence to assign the nexus during the driving license of the insured and the accident. Moreover, Ops did not make efforts to produced duplicate driving license of the deceased on record file. Ops neither present any cogent evidence from the concerned regional transport authority to prove this factum, “ whether the deceased’s driving license is having within valid period at the time of accident or not?. No specific report/evidence was produced by Ops from the District Transport Office concerned regarding the registration validity of the said driving license. We feel that the Ops were never raised objection at the time of issuance of policy in question regarding the exact status of the driving license of the vehicle concerned. Why Ops issued insurance policy of the vehicle without examined the proper valid status of insured’s driving license. Moreover, Ops pleaded in their reply on merits in para no. 3(c) that investigator/surveyor was appointed by the Ops. This Commission has examined deeply each and every documents produced on record file by both the parties. Ops miserably failed to produce in their evidence on record a single piece of evidence with regard to surveyor report. This Commission has the considered view that the complete surveyor report could be helpful to this Commission to ascertain the actual and factual circumstances of the spot at time of the accident. We feel that ops did not do so their fundamental obligation to appoint the surveyor and present the surveyor report on records. " A man can lie, but document can't."

9. It is writ large on the file Ops issued  letters dated 06.08.2021 Ex. Op.4, 25.08.2021 Ex.Op.5, 13.09.2021 Ex.Op.6, 28.09.2021 Ex.Op.7 to the complainant. It transpires from the perusal on the file Ex. C-2 lodging of personal claim of the deceased by her mother on 25.06.2021 through her counsel namely Tribhuvan Singh Bains. As per Ex.C-2 on page no. 4 list of documents provided by complainant to Ops alongwith claim form. In this context, the letters (supra) issued by Ops to complainant after submitting/lodging of personal claim documents of the policy. It transpires from the Ex. C-2 page no. 9 the age of deceased/insured mentioned as 22 years. We feel that for a mother who’s 22 years young beloved son lost his life has a unbearable shock  to stable the physical and mental condition for a mother of the deceased. The family perform the funeral of the deceased and last rites as per their customs and religion. It transpires from the perusal of the Ex.C-2. Page no. 15 the information has been given to the police by the mother of the deceased/insured regarding missing of driving license on 07.06.2021. In this juncture, we feel that the primary priority of the deceased was to attend the injured after that to collect the belonging and articles from the place of the occurrence of the accident. In this critical situation, the possibility cannot be ruled out that the driving license and other documents of the deceased may have lost at the place of the occurrence of the accident. In this context, reliable and cogent explanation has already being provided by the complainant in the light of Ex. C-2 page no. 4 regarding missing report to police of driving license of deceased. The burden of proof beyond the reasonable doubt is fully proved by the complainant and establishes that no other reasonable explanation exists other then the evidence is presented to this Commission. It is incumbent upon the Ops shifting the burden of proof to disproving the fact with regard to valid driving license not in existence at the time of occurrence of the accident (supra). We feel that it was their primary duty to ascertain the validity of the driving license as the Ops are claiming on later stage. The Ops by taking the  plea/ground that the deceased was not having effective valid driving license at the time of accident.  We rely upon the judgments passed by the Hon’ble National Commission in case titled as “ National Insurance Company Limited Vs S. Venkata Lakashmamma” in Appeal no. 1784 of 2005 decided on 16.10.2012. The Hon’ble National Commission held that Insurance company also erred in not verifying before issuing the policy whether a person seeking cover under the personal accident insurance policy has a valid driving license which was a necessary pre-condition for insurance under this cover.
10. This Commission has the considered view in the present case in hand that the Ops ought not to issued the personal accident cover for owner drivers insurance policy. Ops should have denied the request for personal accident cover for the insured under the liability of Compulsory PA (owner-driver). As per Ex. Op-2 on page no. 2 Ops failed to perform their liability under 1 year compulsory PA cover for owner driver of Rs. 15,00,000/- which was under policy number 3192437876 valid from 01.09.2020 to 31.08.2021 as per Ex.Ops.2 page no. 2. In this peculiar situation Ops failed to provide service qua the complainant. As such, Ops are liable for deficiency in service.

            This Commission has no hesitation to hold that from the factum of the case Ops are liable for deficiency in service qua the complainant. Further, we hold that an accident caused not due to any fault of the driver in the present case in hand. We feel that the Ops could not denied the genuine claim of the complainant. When Ops charged premium for PA cover from the son of complainant then the Ops cannot escape from its liability.  

            The Hon’ble National Commission in revision petition no. 1879 of 2005 decided on 09.04.2009 in Case titled as “ United India Insurance Company Ltd Vs Gaj Pal Singh Rawat” in this case Complaint alleging repudiation of motor accident claim-Driver not holding valid ad effective license- Complaint allowed by Forum-Appeal against –Held, in absence of nexus between license of driver and accident, insurer would be liable to allow claim on non-standard basis-Revision petition against-Accident took place on account of sudden fall of stones proved by Surveyor’s report- No fault of driving on part of driver established- No interference warranted in the impugned order.  

                        In the present case in hand as per pleading of complaint in para no. 3(B) and as per Ex.C-1 affidavit of complainant in para no.2 page no. 6, it is specifically mentioned that a stone came under the tyre of the insured’s motorcycle, as a result the motorcycle got unbalanced and accident occurred. Insured and Jony sustained grievous injuries. Insured was referred to Rajindra Hospital, Patiala, where he scummed injuries and expired. We feel that the facts of the present complaint and Guj pal Singh Rawat’s case (supra) are same. So, the judgment (supra) passed by the Hon’ble National Commission is fully applicable in the present complaint in hand.

                        In another celebrity judgment pronounced by the Hon’be Supreme Court of India in case titled as “ Jitendra Kumar Vs Oriental Insurance Co. Ltd. and others” in Civil Appeal no. 4647 of 2003 decided on 17.07.2003 in this case Liability of insurer- Fire caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Claim cannot be repudiated on the ground that driver did not have valid license. Motor vehicles Act, 1988, Section 149- Liability of insurer- Fire caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Claim cannot be repudiated on the ground that driver did not have valid license.

11.                 We feel that the insurance company received huge amount by way of premium and issue the insurance policy to the innocent consumer frequently. On the other hand, the Phenomenon is toward the insurance companies are avoiding by one pretext or another to pay the liability of insurance claim to the aggrieved consumers, we feel that an insurance contract is known as a contract of "uberrima fides" based on "utmost good faith" which is fully applicable in the present complaint. This is a fit case to redress the grievances of the complainant.

12.             Resultantly,  keeping  in view of the  facts and the peculiar circumstances of the case   in hand  and with  careful  analysis  of the evidence available on record  and in the light of the decision of the Hon’ble National Commission and Hon’ble Supreme Court of India, we partly allow the complaint and direct the OPs to pay to the complainant  an amount of  Rs.15,00,000/- alongwith interest @7% from the date of  filing the complaint till realization.  Further, the OPs are directed to pay a consolidated sum of Rs.10,000/- as compensation and litigation expenses. This order of ours shall be complied within 45 days from the receipt of copy of the order.

18.             The complaint could not be decided within the statutory time period due to heavy pendency of cases.

19.             Copy of this order be supplied to the parties free of cost. File be consigned to the records after its due compliance.

                          Announced.                                      

                          April 15, 2024

 

 

 

( Kanwaljeet Singh)     (Sarita Garg)         (Jot Naranjan Singh Gill)    

   Member                         Member                  President