BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

C.C NO-21/2015

Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy, Member (W).

1. Kamal Kumar Panda,S/O- Late Pitabash Panda,

R/O-G Shop No-26, Near Andhra Bank,

Hirakud, Dist-Sambalpur.

2. Mahima Panda, aged about 7 years,

D/O- Kamal Ku. Panda,

3. Praveer Panda, aged about 2 years,

S/O- Kamal Ku. Panda,

No-2 and 3 being minors represented through

 their father and natural guardian

 Kamal Kumar Panda,

All are resident of G Shop No-26,

Near Andhra Bank,Hirakud, Dist-Sambalpur.                                …..Complainant

Vrs.

1. The Chairman,

IFFKO TOKIO General Insurance Co. Ltd,

IFFCO Tower, Plot No-3 Sector 29,

2. IFFKO TOKIO General Insurance Co. Ltd,
1.  
2.  

3. Field TOYOTA

Plot No-B/12,B/13,

Kulunga Industrial Estate,Rourkela-770031. ……O.Ps

Counsels:-

1. For the Complainant:-          Sri S.K.Mishra, Advocate & Associates.
2. For the O.P-1&2        :-          Sri B.K. Purohit, Advocate & Associates.
3. For the O.P-3             :-          S.Latif,Advocate.

DATE OF HEARING : 23.03.2021, DATE OF ORDER : 13.04.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that the Complainants are the legal heir of Sasmita Panda(Owner of the Car) where the Complainant is the husband and the Complainant no-2 &3 are the daughter and son respectively. One Innova 2.5 V(E) 8 seater/2494 Car bearing Engine No-2KD6983672 and chassis no-MBJ11JV4007319754 purchased from the O.P-3 Field TOYOTA purchased in the name of one Sasmita Panda. The vehicle was insured with the O.P-1 & 2 vide policy  no-TIT/91058206.  On dtd. 11.06.2014 near Rairakhol  on the way to Bhubaneswar  the Car met with an accident where the wife, father and two children of the Complainant No-1 were severely injured and shifted to Rairakhol hospital where the father and the wife of the complainant were declared dead.  The accident was reported in the Kishorenagar P.S vide P.S case no-40. Dtd. 11.06.2014. Also information was given to the O.P-2 and as per the advice the vehicle was shifted to the Garage of the O.P-3 for repairing.  The surveyor appointed by the O.P-2 inspected the vehicle  and insurance claim of the father and wife of the Complainant No-1 are also reported along with some documents submitted to the O.P-1. The O.p-1 settled the claim of the father Pitabasa Panda  but repudiated the claim of the wife of the Complainant No-1. On dtd. 29.12.2014 the O.p-2 issued a letter to the complainant no-1 mentioning that  “at the material  time of accident Late Sasmita Panda was not holding a driving licence  so Personal Accident  Claim for Owner-Driver  is not admissible as per the provision of Rule-3 of Motor Vehicles Rules,1989. It is hereby mentioned that the O.P-3 has convinced the Complainant No-1 to make an Insurance policy with the O.P-1 hence as per the advice the Complainant No-1 was forced to make insurance for them. The O.Ps should have asked for driving license to the insured before making the policy as being a woman she was of aware of the terms and condition of Insurance. But without making verification the O.Ps taken premium for three consecutive years which includes the PA Cover of Owner-Driver, for paid driver and for 8 nos. of persons.

As per the O.P-1&2 the O.P-2 had issued a Private Car Package Policy of insurance bearing No-TIT/91239000 for the period from 07.04.2014 to 06.04.2015, the insured being Sasmita Panda. This policy was issued with certain terms and conditions, limitations and exceptions.  Premium was paid by the insured for personal accident cover of Owner-Driver and the conditions provides specific conditions to compensate the claim of insured. This cover subject to-

1. The owner-driver is the registered owner of the vehicle insured herein,
2. The owner-driver is the insured named in the policy,
3. The owner-driver holds an effective driving license, in accordance  with the provisions of Rule-3 of the Central Motor Vehicle Rules,1989, at the time of the accident.

The Car got accident during the currency of the policy causing death of insured as well as one occupant. Own damage claim was lodged by the husband of the insured and also personal accident claim was lodged by him. Both own damage and PA cover of Pitabash Panda were settled  by the insurance company, but the personal accident cover of Sasmita Panda was repudiated by the company on the ground that she was not having driving license at the relevant time of accident. Since the policy speaks conditions that the insured must have a valid and effective driving license at the time of accident, then a personal accident claim is maintainable, otherwise it is liable for repudiation. Again he added that this policy period was third year of policy insured and without being satisfied with the policy condition she would not have opted for the policy from the insurer. Hence the O.P-1 & 2 are not deficient in providing services or committed any unfair trade practices.

                  As per the O.P-3 this Forum has no jurisdiction to try this case. He states that the Insured was having knowledge about the terms and conditions of the policy and after verifying the necessary documents the O.P-3 has accepted the premium for PA cover  for Owner –Driver. There is no cause of action against the O.P-3.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has purchased a new Innova Car and got it insured with the O.P-1 & 2 on payment of Premium as consideration amount. It seen that “National Insurance Co. Ltd. v. Krishnan and Another IV(2014)ACC510(Mad.)”- wherein the following has been opined that- “A owner may travel in a vehicle, either driving the vehicle or as an occupant. He has taken a policy to cover himself for the bodily injuries or death, due to an accident, arising out of and use of the vehicle. The policy is to cover him in both the capacities, either as a owner of the vehicle or as a driver. Merely because, at the time of accident, he did not drive the vehicle, it cannot be contended that the contract of insurance cannot be extended to cover the owner of the vehicle. When he travels in the vehicle, not actually driving the vehicle, but as an occupant, there is no alteration in his status, as the owner of the vehicle. The performance of an act, i.e., driving the vehicle, alone is not the criteria, to determine the enforceability of the contract of Insurance. So long as there is a payment of additional premium for the owner cum driver and during the period of validity, an accident has occurred, the policy would cover the owner also, even if he was not on the wheels, at the time of accident. The expression "owner cum driver" cannot be split up to narrow down the enforceability of the policy to the driver only, if he is also the owner of the vehicle. When an occupant in the vehicle is covered by the judgment in National Insurance Co. Ltd. v. Balakrishnan, then the owner of the vehicle, who travelled in the offending vehicle, as an occupant, is also entitled to seek for just compensation, when the vehicle is covered by a comprehensive/package policy. If the policy is comprehensive/package policy and when additional premium has been paid to cover any loss, then the Insurance Company is liable to pay compensation.

Again as per the O.P-1 & 2 it is the case of the Complainant that the insured did not possess an effective driving license and hence not entitled to the claim. If that be so, they ought not to have issued the Personal Accident cover for owner-driver in the first place by accepting an extra premium for the said purpose. In other words, if they knew that the insured did not possess an effective driving license, they should have declined the request for personal accident cover for the insured under the category of owner-driver so that the owner of the car may have taken some other IMT endorsement like IMT 15 which covers the owner independently.  Having failed to do so, the O.P-1&2 are liable for deficiency of service. This matter has been well settled in the case of “United India Insurance Co. Ltd. & ... vs Pushpa Devi Mantri on 8 February, 2017” decided by National Consumer Disputes Redressal Commission, New Delhi. Hence we order as under:-

ORDER

The Complaint petition is allowed. The O.P-1& 2 are jointly and severally directed to pay a sum of Rs. 2,00,000/- to the Complainant against the PA Claim per the Policy  with interest @ 9% per annum from the date of filing of the claim petition till the date of payment. Further the O.P-1& 2 are jointly and severally directed to pay a sum of Rs.1,00,000/-(Rupees One Lakh) as compensation for harassment, mental pain and agony, and Rs,10,000/- (Ten Thousand) to the Complainant as Cost of litigation. All the payment, as above, shall be made within a period of 4 weeks from date of receipt of certified copy of this order.

Order pronounced in the open Court today i.e, on 13^th day of April 2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

I agree,                                                                                            

-Sd/-                                                                                                   -Sd/-

MEMBER(W)                                                                                                PRESIDENT  

                                                            Dictated and Corrected

                                                                             by me.

                                                                            -Sd/-

   PRESIDENT.