IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 29th day of January, 2011. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C.No. 82/10 (Filed on 09.06.2010) Between: 1. P.P. Mathai, aged 61 years, Mathirampallil Kizhakkethil, Bhagavathikkum Padinjaru, Keerukuzhi.P.O. (Brother of the deceased) 2. P.P. Susamma, aged 50 years, W/o. Thankachan, -do. –do. (Sister of the deceased). 3. Valsamma. P.P, aged 48 years, W/o. George Kutty, Puthuvelil, Thannithodu Village. (Sister of the deceased). 4. P.P. Alice, aged 46 years, W/o. Kunjumon, Mathirampallil House, Keerukuzhi.P.O. (Sister of the deceased). 5. Marykutty. P.P., aged 40 years, W/o. Thomas, Ittikalayil, Lakoor. P.O., Konni Village. (Sister of the deceased) (Petitioners 2 to 5 are represented by the 1st petitioner as their P/A. Holder) (By Adv. Mathew George). ..... Complainant. And: The Branch Manager, National Insurance Co. Ltd., Pathanamthitta. (By Adv. Sam Koshy) ..... Opposite party. O R D E RSri. N. Premkumar (Member): Complainants filed this complaint for getting a relief from the Forum. 2. Fact of the case in brief is as follows: Complainants are the legal heirs of the deceased P.P. Varghese who was a consumer of the opposite party. The deceased was owner-cum-driver of a Pick Up Ape bearing Reg.No.KL-03-M/1443 and the ape was covered with a comprehensive insurance policy vide Policy No.571402/31/08/63/00003183 valid from 24.05.2008 to 23.05.2009 issued by the opposite parties. As per policy a compulsory personal accident cover to owner cum driver of ` 2,00,000 and the opposite parties received a premium of ` 100. 3. On 28.11.2008 at about 9.30 a.m, the pick up ape was loaded iron bars and after that the deceased was trying bars with the rope on the body of the ape. At that time a Tipper Lorry bearing Reg.No.KL.03/N-1961 hit against the iron bars over the petty auto. Due to the impact of the accident he sustained several injuries. He was admitted at Pushpagiri Medical College Hospital, Thiruvalla and he succumbed due to the injuries sustained in the above accident. 4. The complainants approached the opposite party for benefit of the P.A. cover with claim form and other relevant documents. But the opposite parties rejected the claim stating that the deceased was neither driving the vehicle or travelling in the vehicle as a co-driver nor was mounting into or dismounting from the vehicle at the time of accident. As per the terms and condition that if the owner/driver of the vehicle is in direct connection with the vehicle also covered under the P.A policy. 5. The opposite party has rejected the claim as per the letter dated 3.2.2010 without any application of mind. Hence this complaint for getting the claim amount with interest, compensation and cost. 6. Opposite party entered appearance and filed version stating that complaint is not maintainable either in law or on facts. But admits that they issued policy by accepting ` 100 from the insured towards personal accident cover to owner cum driver. They also admit the occurrence of accident and cause of death. According to them, they rejected the claim with due application of mind and repudiated the claim for sound reasons. As per the terms and condition of the policy stated in IMT 17 the claim is not payable. IMT 17 is stated as follows:- “In consideration of the payment of an additional premium, it is hereby understood and agreed that the insurer undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by the paid driver/cleaner/conductor in the employ of the insured in direct connection with the vehicle insured whilst mounting into dismounting from or travelling in the insured vehicle and caused by violent accident external and visible means which independently of any other cause shall within six calendar months of the occurrence of such injury result in death or other disablement as mentioned in the schedule”. 7. According to opposite party, the instant case the owner-cum-driver of the vehicle insured under the above said policy was neither driving the vehicle or travelling in the vehicle as a co-driver nor was mounting into or dismounting from the vehicle at the time of accident. As per the policy condition, the legal heirs of the deceased are not eligible to get compensation under owner-cum-driver personal accident claim. Therefore, there is no deficiency on their part and this complaint is not maintainable before this Forum. Hence opposite party canvassed for the dismissal of the complaint with cost. 8. From the above pleadings, the following points are raised for consideration: (1) Whether the complaint is maintainable before this Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Reliefs and Costs? 9. Evidence of the complainants consists of the proof affidavit filed by the P/A holder of complainants along with certain documents. He was examined as PW1 and the documents produced were marked as Ext.A1 toA7. 10. Evidence of opposite party consists of the proof affidavit filed by the opposite party along with one document. Documents produced were marked as Ext.B1 and B1(a). After the closure of evidence, both parties were heard. 11. Point Nos. 1 to 3:- In order to prove the complainant’s case, complainants P/A holder filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Ext.A1 to A7. Ext.A1 is the repudiation letter dated 3.2.2010 issued by the opposite party. Ext.A2 is the personal accident policy issued by the opposite party. Ext.A3 is the succession certificate issued by Hon’ble Sub Judge, Pathanamthitta. Ext.A4 is the power of attorney executed in favour of the 1st complainant. Ext.A5 is the copy of FIR in Crime No.393/08 of Kodumon Police Station. Ext.A6 is the copy of postmortem certificate of the deceased P.P. Varghese. Ext.A7 is the attested copy of charge sheet in C.C.No.110/09 from Judicial 1st Class Magistrate Court, Adoor. 12. In order to prove opposite party’s contention, opposite party filed proof affidavit along with one document. Document produced by him has been marked as Ext.B1 and B1(a). Ext.B1 is the terms and condition of the policy. Ext.B1(a) is the IMT 17 Clause of Ext.B1. 13. On the basis of the contention and averment of the parties, we have perused the entire material on record. It is seen that there is no dispute regarding the issuance of Ext.A2 and the occurrence of accident, which caused the death of the deceased. The only dispute is that at the time of accident, the deceased was neither driving the vehicle or travelling in the vehicle as a co-driver nor was mounting into or dismounting from the vehicle. Therefore according to opposite party as per Ext.B1 terms and condition the benefit as per Ext.A2 is not payable. 14. According to complainant, the pick up ape was loaded iron bars and the deceased was tying bars with rope on the body of the ape. At that time, a Tipper Lorry hit against the iron bars over the petty auto and deceased succumbed to death. The deceased, the owner-driver of the vehicle is in direct connection with the accident and entitled to get the Ext.A2 benefit. 15. Opposite parties contention is that as per terms and condition complainants are not entitled to get the benefit of the policy. For that they highlighted Ext.B1(a). It is reproduced as follows:- “IMT 17 PERSONAL ACCIDENT COVERS TO PAID DRIVERS, CLEANERS AND CONDUCTORS”. 16. In consideration of the payment of an additional premium, it is hereby understood and agreed that the insurer undertakes to pay compensation in the scale provided below for bodily injury as here in after defined sustained by the paid driver/cleaner/conductor in the employ of the insured in direct connection with the vehicle insured while mounting into dismounting from or travelling in the insured vehicle and caused by violent accident external and visible means which independently of any other cause shall within six calendar months of the occurrence of such injury result in. 17. The above Ext.B1(a) shows that personal accident cover to paid drivers, cleaners and conductors. The instant case, the deceased was the owner-driver. Therefore, he is not eligible to claim as per Ext.B1(a). 18. On a perusal of Ext.B1 (Page No.2) it is evident that Sec.IV is applicable to owner-driver of the vehicle. Section IV of Ext.B1 is reproduced as follows:- “Sec.IV PERSONAL ACCIDENT COVER FOR OWNER-DRIVER”. 19. Subject otherwise to the terms exceptions conditions and limitations of this policy, the company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner driver of the vehicle in direct connection with the vehicle or while mounting into dismounting from or travelling in the insured vehicle as a co-driver caused by violent accidental external and visible which independent or any other cause that within six calendar months of such injury result in. 20. As per above terms and conditions the complainants are eligible to claim personal accident benefit. Ext. A5,A6 and A7 shows that the death of the deceased is in direct connection with the vehicle. It is also evident in PW1’s deposition which is as follows:- “I¼n hnbn h¨v sI«ns¡mncn¡pt¼mgmWv A]ISw DmbXv”. 21. It is pertinent to note that Ext.A2 is a personal accident policy. Ext.B1 Sec.IV shows that, it is for the benefit of personal accident cover for owner-driver and undertakes to pay compensation for accident in connection with the work/employment closely related to the vehicle. Therefore, it is an insurable employment as per Ext.A2. Evidence on record shows that the deceased was tying bars with the rope in the body of the ape at the time of accident. The wider sense mounting into dismounting from denotes the purpose for which employment or work has to be done in connection with the vehicle. This is direct connection with the vehicle. It amount to proximate connection with the vehicle and the act done by the deceased, which is within the purview of Ext.B1 while accident has occurred. 22. From the fact and circumstances of the case, we are of the view that, the object of the insurance policy is not to deprive the bonafide insurer but to accommodate the insured so that the insured or the legal heirs get the dues. In this case, the opposite parties attitude of non-payment of claim is unjust, irrational and against the spirit of consumer justice. It is a clear deficiency of service. Therefore, complaint is maintainable and is allowable with compensation, cost and interest. 23. In the result, complaint is allowed, thereby opposite party is directed to pay the claim amount as stated in Ext.A2 with interest at 7% from the date of filing of this complaint till this date with compensation of ` 10,000 (Rupees Ten Thousand only) and a cost of ` 2,000 (Rupees Two Thousand only), within one month, from the date of receipt of this order failing which the whole amount will follow 10% interest from this date, till the realisation of the whole amount. The ordered amount be shared by complainants as per Succession Act applicable to the complaint. Declared in the Open Forum on this the 29th day of January, 2011. (Sd/-) N. Premkumar, (Member) Sri. Jacob Stephen (President) : (Sd/-) Smt. C. Lathika Bhai (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : P.P. Mathai Exhibits marked on the side of the complainant: A1 : Repudiation letter dated 3.2.2010 issued by the opposite party to the complainant. A2 : Photocopy of the Personal accident policy issued by the opposite party to the complainant. A3 : Succession certificate issued by Hon’ble Sub Judge, Pathanamthitta to the complainant. A4 : Power of attorney executed in favour of the 1st complainant. A5 : Photocopy of FIR & FIS in Crime No.393/08 of Kodumon Police Station. A6 : Photocopy of postmortem certificate of the deceased P.P. Varghese. A7 : Photocopy of attested copy of charge sheet in C.C.No.110/09 from Judicial 1st Class Magistrate Court, Adoor. Witness examined on the side of the opposite party: Nil. Exhibits marked on the side of the opposite party: B1 : Terms and conditions of the policy. B1(a) : IMT 17 Clause of Ext.B1. (By Order) Senior Superintendent. Copy to:- (1) P.P. Mathai, Mathirampallil Kizhakkethil, Bhagavathikkum Padinjaru, Keerukuzhi.P.O. (2) P.P. Susamma, -do. –do. (3) Valsamma. P.P, Puthuvelil, Thannithodu Village. (4) P.P. Alice, Mathirampallil House, Keerukuzhi.P.O. (5) Marykutty. P.P., Ittikalayil, Lakoor. P.O., Konni Village. (6) The Branch Manager, National Insurance Co. Ltd., Pathanamthitta. (7) The Stock File. | 
