DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 20^th  day of October,  2021

Present    :  Sri.Vinay Menon.V  President

                :  Smt.Vidya.A, Member                                                    Date of Filing: 18/12/2019 

     CC/289/2019

Sunitha,

W/o. Suresh,

Residing at Edathil Colony Veedu, Erattakkulam Post,

Alathur Taluk, Palakkad.

(By M/s M.P. Ravi & Vince M.J., Advocates)                                    -           Complainant

                                                                                      Vs

 1.        The Branch Manager,

M/s Reliance General Insurance Co. Ltd.,

Mangalam Towers, Opposite Town Bus Stand,

T.B. Road, Palakkad – 678001.

2.         The Manager,

M/s Reliance General Insurance Co. Ltd.,

Registered Office, H – Block, 1^st Floor,

Dhirubhai Ambani Knowledge City,

            Navi Mumbai – 400710.

 (Adv. K.K. Jaidip)                                                        -           Opposite parties

O R D E R 

By Sri. Vinay Menon V.,  President

1. Complaint seeking Personal Accident cover consequent upon accidental  death of the complainant’s son.
2. Jineesh, son of the complainant availed a two wheeler package policy bearing no. 220921923750002431 for his bike having registration no. KL – 49 – L – 2984 covering a period of 08.06.2019 to 07.06.2024. On 23.09.2019, Jineesh met with an accident and lost his life. The complainant, nominee in the policy, seeks the Personal Accident benefit of Rs. 15,00,000/-.
3. Opposite parties filed version admitting the facts, except that they attacked the claim mainly on the ground that the deceased was not wearing a helmet or had not taken proper safeguards at the time of his death. It was the non-wearing of the helmet that aggravated the injury that led to death.  Complainant has not produced any Legal Heirship certificate to prove her claim or details of bank account for crediting of amount. The complainant has to prove that the deceased had a valid driving license. Claim of the complainant will be looked into once the investigation report is received. The financier, HDFC Bank is a necessary party to the complaint. There is no deficiency in service and the complaint is only liable to be dismissed.
4. Pleadings and evidence considered, the following issues arise for consideration

1. Whether there is violation of the policy terms or statutory provisions on  the part of the deceased?
2. Whether the financier is a necessary party to the complainant?

            3.         Whether there is deficiency in service on the part of the O.P.s?

4.         Reliefs and cost, if any.

5.         Evidence comprised of Proof affidavit of complainant and Exhibits A1 to A7. The opposite had no evidence to adduce.

       Issue No. 1.

6.         The allegation of non-wearing of helmet raised by the opposite party necessitated this issue. As per Exhibit A4 Post Mortem Certificate, opinion as to cause of death is “Died due to complication following injury sustained to head”.  In the part of injury findings – Cranium observation made is seen as  ‘frontal bone and Parietal bone fracture on right side”.  The injury occurred while the bike driven by the deceased fell into a canal and the deceased hit his head against a wall. Had the deceased been wearing a helmet, the injury on the parietal bone on the right side would not have occurred. Hence it is safe to presume that the allegation raised by the opposite parties,  though not substantiated by any evidence like mahazar, statements or reports,  that the deceased had not been wearing helmet, is factually correct.

7.         The next question that needs consideration, is whether the want of helmet has a say in  determining the liabilities of the parties.  It is advisable to look into the terms and conditions that are material

Limitations as to use:            The Policy covers use for any purpose other than: (a) Hire or Reward, (b) Carriage of goods (other than samples or personal luggage (c) Organised racing (d) Pace making (e) Speed Testing (f) Reliability trails (g) Any purpose in connection with Motor Trade.

            Persons/Classes of persons entitled to drive: Any person including the insured provided that a person driving holds a valid driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided that the person holding a valid Learner’s license may drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989.  

8.         The policy terms and conditions are silent as to the need for a helmet. But the Motor Vehicles Act and Kerala Motor Vehicles Rules are  not. S.129 of the M.V. Act, 1989 makes wearing of protective headgear  mandatory for   every person driving or riding in a public place  conforming to the standards of Bureau of Indian Standards. And the terms and conditions  or the absence thereof in a contract cannot overrule a statutory provision. The opposite parties, custodian of public money, cannot be permitted to  fritter  away public moneys in their custody.

9.         Therefore, we are left with no alternative but  to hold that non-wearing of helmet is fatal to the case as the same is a violation of mandatory  statutory provisions. It would not advance rule of law if any other view to the contra is resorted to by this Commission and would be violative of public policy under Section 23 of Indian Contract Act.  Hence, we hold that there is violation of statutory provisions. Issue No.1 is found against the complainant.

            Issue nos. 2,3  & 4

10.       In view of the finding in issue no 1,  these issues do not merit discussion. This complaint is dismissed.

            Pronounced in the open court on this the 20^th day of October, 2021.

                                                                                                 Sd/-

                                                                              Vinay Menon V

                                                 President

   Sd/-

Vidya.A

                   Member      

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 –  Copy of the Reliance Two Wheeler Policy – Bundled – Schedule bearing policy

                  no. 220921923750002431.

Ext.A2 –  Copy of Certificate of Registration of vehicle bearing no. KL – 49 – L – 2984.

Ext.A3 –  Copy of  FIR bearing no. 0590 dated 23.09.2019

Ext.A4 –  Copy of Post Mortem Certificate dated 23.09.2019

Ext.A5 –   Original Driving License bearing no. 49/5891/2016 dated 11.11.2016.

Ext.A6 –  Copy of notice dated 11.10.2019

Ext.A7–   Copy of relationship certificate bearing no. 44018362 dated 01.11.2016.

Exhibits marked on the side of the opposite party

 Nil

Witness examined on the side of the complainant

NIL

Witness examined on the side of the opposite party

NIL

Cost :  No cost  allowed.  

NB : Parties are directed to take back all extra set of  documents submitted in the

         proceedings in accordance with Consumer Protection (Consumer Commission

         procedure) Regulations, 2020 failing which they will be weeded out after 30 days of

         issuance of the order.