Date of Filing: 07.04.2014 Date of Final Order: 21.04.2015
The gist of the case as can be gathered from the record is that the Complainant, Smt. Charubala Saha is the mother of deceased Prativa Saha and being a legal heir has filed the present case against the Opposite Party, The Bajaj Allianz General Insurance Co. Ltd. The deceased Prativa Saha was a senior nurse posted at Pundibari also an owner of a Maruti Car bearing No. WB-64D/4218 which was insured with the O.P. Insurance Company having Policy No.06122404180100007782 issued by the O.P’s Branch on 23.02.2012 valid for the period from 24.02.12 to Midnight 23.02.2013. One Prasanta Mohanta, S/o Sudhir Mohanta was the driver of the vehicle of Prativa Saha having valid Driving License bearing No. WB 63 20120854256 valid up to 18.03.2032.
On 12.06.2012 while Prativa Saha proceeded towards Pundibari from Cooch Behar with her Maruti car then a Truck bearing No. WB-69/2403 was coming from the opposite direction speedily and dashed the vehicle of the Complainant. As a result the vehicle was badly damaged and the deceased sustained gross injuries with bleeding accordingly admitted in the MJN Hospital but breathed her last on the same day at about 4 p.m. and the postmortem was done at M.J.N. Hospital, Cooch Behar in C/W Kotwali P.S. U/O Case No.243/12 dated 12/06/2012.
According the terms and norms of the policy a sum of Rs.2,00,000/- arises towards P.A cover and the legal heirs of deceased Protiva Saha are entitled to get the aforesaid sum of Rs.2,00,000/- as P.A. cover.
Afterwards, as per norms of the policy, the complainant has claimed before the O.P. i.e. The Bajaj Allianz General Insurance Co. Ltd. for settlement of P.A. claim of the said car of the complainant under the above mentioned policy, but the Insurance Company has repudiated the vice their letter dated 22/08/2013 on the ground that the essential requirement for fulfillment of the claim is the permanent driving license of deceased Prativa Saha (Insured). Though the requirement pointed out by the O.P to settle the claim is not according to the conditions of the policy and more so against the section-III of M.V. Act, the O.P has repudiated the claim illegally/wrongly. Also the O.P violating the provisions of the policy has made quarries to the claimant vide their letters dated 25/06/2013, 11/07/2013 and 22/07/2013 though the claimant has duly informed the O.P in response to above letters that deceased Protiva Saha (insured) had no permanent driving license and the vehicle in question had been driven by driver, who has a permanent driving license. Though the claimant fulfill all the requirement in terms of the policy, P.A claim has been repudiated illegally/wrongly and violating the provisions of the policy causing a great hardship to the claimant as well as harassment and the claimant is suffering from mental pain and agony also the aforesaid claim is an unfair trade practice and deficiency in service on the part of the O.P.
Finding no other alternative way, the complainant filed the present case praying for issuing a direction upon the O.P (i) A sum of Rs.2,00,000/- towards P.A. Cover, (ii) Rs.25,000/- towards compensation for unfair trade practice and deficiency in service, (iii) Rs.25,000/- for mental pain and agony and harassment causing financial hardship, (iv) Rs.10,000/- towards cost of the suit, besides other relief(s) as the Forum deem fit, as per law & equity.
The Opposite party has contested the case contending inter-alia that the case is not maintainable before this Forum either in law as well as in fact, has no cause of action; the Complainant is not Consumer etc. The prime contention of the O.P. is that the petitioner claimed that she is the legal heir of the deceased but the documents filed by the Complainant shows that the deceased has four legal heirs and this fact suppressed by the Complainant. The Opposite party also denied the cause of death of Prativa Saha. The fact is that the deceased violated the terms and condition of the Insurance Policy issued by the Opposite Party in connection with vehicle No.WB-64-D-4218 and thereby this Opposite Party has no liability towards the alleged accident. In terms of section iii of MVF 1988 P.A claim covers for owner, amounting to Rs.2,00,000/-. If the owner is the driver of the insured vehicle died in a Road Traffic Accident and the said owner possesses a valid and effective driving license in that respect the question of payment will arise. In the alleged accident the owner was not a driver nor she possesses any valid driving license and thereby this answering O.P. has no liability thus the alleged legal heir of deceased Prativa Saha also not entitled to get any relief and the case is liable to be dismissed.
This opposite Party also quoted the terms and condition i.e. section III (2) of Policy specifically to PA claims for registered owner-Insured which reveals that this policy only covers the risk as to accidental death only for the registered owner- driver of the vehicle who have a valid driving license, but in the present case the owner-insured did not possess a valid driving license. The further contention of the O.P. is that after receiving the Claim from the Complainant the O.P. several occasion sent letters to the Complainant to submit valid driving license of the insure but the Complainant failed for which the O.P. compelled to repudiate the claim of the Complainant on 22.08.2013 on the ground of non- fulfillment of essential requirements.
Putting all this and make denial of other allegation in the complaint this O.P. prayed for dismissal of the case with cost.
In the light of the contention of the complainant, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1) (d) (ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the Opposite Party any deficiency in service by repudiating the claim of the Complainant?
- Whether the Complainant is entitled to get relief with compensation?
DECISION WITH REASONS
We have gone through the record very carefully, perused the entire documents in the record also heard the argument at a length advanced by the parties.
Point No.1.
The deceased Prativa Saha during her life time obtained a policy from the O.P, The Bajaj Allianj General Insurance Company and admittedly the O.P. issued the said policy. Thus, the relation between the deceased Policy Holder and the Opposite Party so established from the record it is clear that the deceased policy holder was the Consumer of the O.P. and the present Complainant being the legal heir of the deceased has filed the present case.
Point No.2.
The Opposite party Insurance Company having its office within the jurisdiction of this Forum and the complaint value of this case is far less than prescribed limit so that this Forum has territorial as well pecuniary jurisdiction to try the case.
Point No.3 & 4.
Undisputedly, the deceased daughter of the Complainant had a Maruti Car bearing No. WB-64-D-4218 was duly insured under the Package Policy with the O.P. Insurance Company.
Admittedly, the deceased Policy Holder died within the Policy Period due to a road accident.
The point of the dispute is that the O.P. insurance Company repudiated the genuine claim of the Complainant in a flimsy ground.
It is the case of the Opposite Party that they repudiated the claim of the Complainant as the Complainant failed to produce the valid Driving License of the deceased owner of the alleged Maruti Car also violated the terms and condition of the Policy.
Evidently, the deceased daughter of the Complainant obtained a policy in connection with her Maruti Car bearing No. WB-64-D-4218 being Policy No. 06122404180100007782 dated 23.02.2012 with a valid period from 24.02.2012. to Midnight 23.02.2013. On perusal the Policy Certificate it reveals that the policy was issued under the scheme “Package Policy (Private Vehicle)” and the insured was Mrs. Prativa Saha.
The O.P. in W/V averred and also at the time of argument vehemently argued that the Complainant violated the terms and condition of the policy and the policy was for the Owner-Driver of the vehicle though nowhere in the Policy we find as such clause or Section III (2) as referred by the Opposite Party. Moreover, the O.P. badly failed to adduce any cogent evidence to substantiate his pleas. The onus lies upon the opposite Party to prove his contention.
In the policy certificate the Driver’s Clause clearly stated that –“Any Person including the Insured: Provided that a person driving holds an effective driving license at the time of the 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 a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989.” Thus it is clear that the O.P. misinterpreted the clause described in the Policy issued by it and repudiated the claim which is not tenable in the eye of law.
In this juncture, reliance has been placed upon the ruling of Hon’ble National Commission reported in 2014 (4) CPR 348 (NC) wherein it is decided that Insurance Company cannot repudiate claim taking altogether different definition of interpretation of same expressions used in policy issued by it.
On perusal the entire materials made available in the record it transpires that at the material point of time one Prasanta Mohanta drives the vehicle having valid driving license No. WB-6320120854256 that was valid up to 13.03.2032 for which the question of the driving license of deceased Policy Holder i.e. the owner of the alleged vehicle is immaterial. The O.P. taking the plea of non-submission of driving License by the owner is not sustainable in the eye of law. On perusal the entire documents we did not find the cause of violation the terms and condition by the deceased Policy Holder. It is crystal clear from the discussion that the O.P. whimsically repudiated the genuine claim of the Complainant by taking a false plea which caused severe mental pain and agony of the Complainant. The act and conduct of the O.P. be branded as deficiency in service as define in section 2(1) (g) of the C.P. Act 1986.
Besides, the O.P has taken plea that the Complainant is not the legal heir of the deceased Prativa Saha. The Annexure “H” the legal heir certificate issued by the Collector, Govt. of W.B shows that Smt. Charubala Saha being mother is the legal heir of Prativa Saha which cannot be disbelieve and none come forward before this Forum with the same claim demanding them the legal heir of deceased Prativa Saha.
The Opposite Party cited decision of Hon’ble National Commission & Supreme Court. But we find that said rulings are not applicable in this case.
Be that as it may, in the light of the foregoing discussion and the materials to its entirety we find no cogent ground to dismiss the complaint. All the points are answered in favour of the Complainant; deficiency in service of the O.P. is proved. Thus, we have no hesitation to say that the Complainant is entitled to get relief with compensation.
ORDER
Hence, it is ordered that,
The DF Case No.23/2014 be and the same is allowed on contest with cost of Rs.5,000/-.
The O.P. is hereby directed to pay Rs. 2,00,000/- with 7% interest p.a. to the Complainant from the date of filing the case also Rs. 25,000/- as compensation for mental pain and agony.
The ordered amount shall pay to the Complainant directly by the Opposite party within 45 days failure of which the Opposite Party shall have to pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
Let plain copy of this Final Order be supplied, free of cost, to the concerned parties/Ld. Advocate by hand/be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
