Counsel for:

The Complainant:Shri Saumendra Chand & Associate Advocate

The Opposite Party 1 & 2: Shri D.R. Bohidar, Advocate.

JUDGMENT

Shri A.K.Patra,President:

1.   This captioned consumer Complaint is filed by the complainant named above alleging deficiency in service & unfair trade practice on the part of the Ops for repudiation of the insurance claim (PA) under Policy No.P0022400020/4113/108114 which was valid 18.12.2021 to 17.12.2022 on the ground that, at the time of the accident ,the person driving the vehicle did not hold an effective driving license..
2.   Complainant has prayed for an order directing the O.Ps to release the insurance benefit of Rs.15,00,000/- and further prayed for an award of compensation of Rs.50,000/- towards mental agony and humiliation suffered by the complainant and Rs.20,000/- to award litigation cost  along with interest @ 12% p.a over  the awarded amount from the date of claim to  its realisation . 
3. Heard. Perused the material available on record. We have our thoughtful consideration on the submission of the both parties and carefully considered the arguments advance by the Learned Counsel for both the  parties.
4. The facts of the complaint in brief is that, the deceased Rajesh Bibhar had purchased an insurance Policy  from  Opposite Party No.1 against his Motor cycle bearing Registration No.OD08R/4281, vide Chassis ME1RG6749M0003633 and Engine No.G3M4E0200092 vide Policy No.P0022400020/4113/108114 valid from 18.12.2021 to 17.12.202 covering the Personal Accident(PA) of the deceased owner.  During the period of policy i.e  on dt. 27.04.2022 the aforesaid motor cycle  while proceeding from Kesinga to Ghat Kaintara (Sonepur) met with an accident at about 11.45 PM near Railway Gate Sudpada causing  injuries on body of Rajesh Bibhar/ the owner of the said vehicle. He was immediately shifted to Govt. Hospital, Sonepur and  as his condition was serious he was shifted to VSS Medical College, Burla  and further shifted to Bikash Hospital, Bargarh and then on 06.05.2022 he succumbed to the injuries on the way near Kesinga while shifting to Visakhapatnam.
5. On dt.20.05.2022 the complainant lodged a FIR regarding accidental death of the deceased Rajesh Bibhar vide Bolangir PS Case No.0251  vide CT Case No.749/2022 under the jurisdiction of SDJM, Bolangir.
6.  It is contended that, the Insurance Company i.e. the Ops have never supplied the terms & conditions of the policy to the insured  or his nominee at any point of time . However, the complainant obtained the information of the alleged vehicle from RTO ,Kalahandi and got informed that, aforesaid insured  vehicle was insured with the Ops/insurance Company and that the Opposite Parties have received the premium of Rs.350/- towards personal accident coverage  of registered owner  after satisfying the eligibility criteria  of the owner  of the alleged vehicle  and the sum assured of the policy is Rs.15,00,000/- for one year. Accordingly, the complainant being the nominee of the deceased owner  claimed the death benefit before the Opp.Party No.2 vide Claim No.C1234113105144 but on dt.30.06.2022 the insurance Company Opp.Party No.2  repudiated the claim of the complainant on the ground that,  the deceased was not holding a valid  and effective driving license on the date of accident. Hence, this complaint.
7. To substantiate his claim the complaint has filed the following documents :-

1. Copy of FIR in vide No.0251dt.20.05.2022 of Bolangir Ps Dist-Bolangir .
2. Inquest report of deceased Rajesh Bibhar .
3. Copy of P.M report of deceased Rajesh Bibhar .
4. Copy of R.C Book bearing No.OD08R/4281.
5. Copy of repudiation letter Dt.30.06.2022 issued by O.Ps.

8. The complainant averments are also supported by an affidavit of the complainant so also the complainant has filed his evidence on affidavit as prescribed under C.P Act, the averment of which are corroborating with the averment of the complaint petition.
9. On being notice the Opposite Parties appeared through their Learned Counsel Shri D.R.Bohidar and filed their written version inter alia denying the petition allegations on all its material particulars. He also preliminary objected that, the allegation is barred by principle of estoppels, waiver, acquiescence, limitation, non joinder and mis-joinder of necessary parties.
10. The Ops  submitted  that, the opposite parties have issued a two wheeler policy Certificate  of Insurance Policy cum schedule/TAX Invoice vide Policy No.P0022420/4113/108114  to Rajesh Bibhar towards his Yamaha R15 Motor cycle bearing Regd. No. OD 08 R 4281 dt.18.12.2021 which was valid up to 17.12.2022 and that ,the opposite party has supplied the entire related document to Rajesh Bibhar along with the policy. It is further contended that ,  as per the terms and conditions of the policy, the complainant should register the death claim before the opposite party through the toll free phone number   mentioned in the policy copy but the complainant never taken any steps to lodged the claim   nor he has informed the opposite parties through regd. Post or by e-mail still then, the opposite party after receipt of complaint registered a claim vide Claim No.C123411305144 for processing of the death claim.
11. The Ops further submitted that, the complainant has not filed the death claim in time accordingly, as per the terms & condition of the policy the death claim is barred by limitation. Complainant has not come in clean hand.
12. It is further submitted that, the Ops have rightly repudiated the   claim on the ground that deceased had not possessed any valid DL at the time of accident which is mandatory for processing of claim as per policy terms & condition as well as to drive any MC in public Road as such the Opposite Parties have not committed any deficiency in service or unfair trade practice rather, the complainant approached this Commission by suppressing material facts. It is further submitted that, the policy cover only two wheeler-bundled 5 years act only and one year own damaged as such the complainant does not entitle for any compensation form the answering OPs. With this contention the Ops urged to dismiss the present complaint.
13. In support of  its contention the  learned counsel for the Ops specifically drew our attention on the  provision of part –II B of the insurance act 1938 as well as GR 36 of Indian Motor Traffic Resolution and averred that neither the police authority seized any driving license of the owner-Driver/insured  nor the complaint has filed any driving license of his  deceased brother as such in absent of any driving license the O.Ps/ insurance company is not liable to pay insurance benefit to the complainant and that, the present case has no  merits as the complainant is not the nominee of the deceased so also the complainant has no authority to be the nominee of the deceased owner of the vehicle for which this complainant is  to be dismissed with cost.
14.  To substantiate their claim the O.Ps have  filed the following documents :-

1. True copy of certificate-cum-Police-scheduled /tax invoice No.P0021400020/4113/108114 issued in the name of insured Rajesh Bibhar  valid from 18.12.2021 to 17.12.2022  along with copy of the terms & condition of the policy.
2. True copy of claim form by the complainant Ashis Bibhar.
3. True copy of letter submitted to Opposite parties (Magma HDI GIC Ltd) by the complainant on 09.06.2022.
4. True copy of letter submitted to the O.Ps (Magma HDI GIC Ltd)by the complainant dt.09.06.2022.
5. True copy of (computer generated) of LL of Rajesh Bibhar.
6. True copy of repudiation letter issued by O.Ps to the complainant dt.03.06.2022.
7. True copy of Postal Consignment vide No.EW252953348IN Dt.21.07.2022
8. Copy of investigation report of Shivam Service.

15. In addition to above documents the Ops has filed the evidence on affidavit of one Soubhagya Ranjan Mohanty working as Manager MAGMA HDI General Insurance Company Ltd the averment of which are corroborating with the averment of the written version filed by the O.Ps
16. Here in this case ,the dispute between the parties revolves around the death claim being made by the complainant as  the nominee on account of the accidental death of his insured brother Rajesh Bibhar   under  Policy No.P0022400020/4113/108114 valid from 18.12.2021 to 17.12.202 covering the personal accident of the owner-cum-driver  for an amount of Rs.15,00,000/-.
17. The main question that need to be answered in this case is that,:- whether the insured owner-driver is entitle to any risk coverage or compensation under the said insurance policy vide Policy No.P0022400020/4113/108114 valid from 18.12.2021 to 17.12.202 and whether the O.P s are deficient in service & Unfair Trade Practice causing injuries to the complainant by repudiating the insurance claim made on account of accidental death of insured owner- cum- driver of the vehicle ?
18. Here in this case, it is proved on admission that, deceased Rajesh Bibhar  (brother of the of the complainant ) was insured under a package policy of the O.Ps vide policy   No.P0022400020/4113/108114 valid from 18.12.2021 to 17.12.202 and that ,it was in force as on date of loss i.e. dt. 27.04.2022 & 06.05.2022 . It is also proved from the policy scheduled that, extra premium @rate of 350/- for the life coverage of owner-driver(PA) is accepted by the insurer/O.Ps with a promise to Pay Rs.15,00,000/-(Fifteen Lakh) to the nominee/LRs of the insured  in case of accidental death of said owner-driver provided that the person driving the vehicle holds an effective Driving license at the time of accident and the also policy contend the name of the complainant as the nominee .  .
19. Accidental death of the insured owner and insurance policy was in force at the time of the occurrence is not disputed.
20. The investigation report of Shivam Services  Dt. 14^th June 2022 on C12341131051512 placed on record by the Ops contended the finding that:-“ with reference to the case we found that, insured only posses learner license. Further we met with insured’s friend-cum-occupant Mr.David Kumar who confirmed that he did not possess any driving license.”
21. On perusal of the policy schedule exclusion clauses i.e. Driver clauses it is found that, the policy contend:- “Driver clause 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 license may also drive the vehicle and that, such a person satisfy the requirements of rule 3 of the Central Motor Vehicle Rule 1989”.
22. Here in this case, no cogent evidence is adduced by the Ops/ insurer that, the insured owner –cum- driver of the vehicle was ever disqualified for holding or obtaining a license rather, it is not   disputed that, he had an effective learner license at the time of the occurrence.
23. The Learned Advocate for the O.Ps/insurance company argued that, deceased Rajesh Bibhar  meet with an accident due to his own negligence ,he  himself is the tort fisher  as such not entitle for any damages, in this contest we found no cogent evidence to hold that the insured died due to his own negligence. There is nothing material available on record to hold the negligence of the deceased .As on date many experienced driver are losing their life in road accident without fault leaving behind their family at peril is certainly not their pleasure. We may quote here that;-“An accident is an occurrence or an event, which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is not the happening of an expected but the happening of the unexpected, which is called as an accident” (Baljit Kaur Vrs Aditya Birla Health Insurance, 2022 (1) CPR 90 (Punj) .
24. It is not disputed that, the  deceased had  paid the premium Rs.350/- only and the insurer/O.Ps has   accepted  the same as such there is a concluded contract between the parties therefore the insurer is bound by obligation under the said insurance  policy but here in this case it is disputed by the OPs/Insurer that, neither the police authority seized any driving license of the owner-driver/insured nor the complaint has filed any driving license of his deceased brother as such in absent of any driving license of deceased owner-driver, the O.Ps /insurance company is not liable to pay the insurance benefit to the complainant and the present case is devoid of merits need to be dismissed with cost. .As such the main question that needs to be answered in the present case is whether the insured owner is entitled to any risk coverage or compensation under the policy?
25. To find the answer to the aforesaid question, it is relevant to refer to the Indian Motor Tariff framed by the Tariff Advisory Committee for Regulating Motor Insurance in India. We have also perused Section 6 of the Indian Motor Tariff (GR) which deals with personal accident cover for owner-driver. A simple reading of this section reveals that the following three conditions are attached to the cover:-(a) The owner-driver is the registered owner of the vehicle insured herein; (b) The owner-driver is the insured named in this policy. (c) The owner-driver holds an effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicles  Rules,  1989, at the time of the accident. The condition (a) & (b) is not disputed by the insurer/OPs.The condition (c) assumes profound significance in the present case.
26.  It is found that ,one of the essential requisite to obtain an insurance policy to cover risk of owner-driver is that the proposer/owner must have valid driving license i.e only those owner who has DL is competent  to avail  the insurance coverage of owner-driver of PA for an amount of Rs.15,00,000/-.(fifteen lakh )
27.  At this point, we find it relevant to refer to General Regulation 36 of the Indian Motor Tariff. GR. 36 states as follows:- "GR.36. Personal   Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Section E, F and G of Tariff for Commercial Vehicles) A.  Compulsory Personal Accident Cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liabilities only and Package policies. The owner of insured vehicle holding an "effective‟ driving license is termed as Owner-Driver for the purposes of this section. Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/ dismounting from or traveling in the insured vehicle  as a co-driver.

NB.  This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/she holds an effective driving license.  Hence, compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner-driver does not hold an effective driving license. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner - driver should not be charged and the compulsory P. A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her."

The Nota Bene appended to the aforesaid Regulation unambiguously clarifies that Personal Accident cover for owner-driver can be granted when the registered owner holds an effective driving license. In the present case, the insured was granted Personal Accident cover to the extent of Rs.15,00,000/- (fifteen lakh) under the category of owner-driver. It is the case of the OPs/insurer that, the insured did not possess an effective driving license and hence complainant is 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 of Rs.350/-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 he/ the owner of the vehicle , may have taken some other IMT endorsement like IMT 15 which covers the owner independently. We are of the opinion that, having failed to do so render the insurer /OPs is squarely liable for deficiency of   service & unfair trade practice. (Reliance placed on the judgment of Honorable National Commission passed in United  India Insurance CO.Ltd Vrs. Pushpa Devi Mantri on 8^th February 2017)

28. The Learned counsel for the O.Ps submitted that, mere acceptance of premium does not give right to any contract. He has drawn our attention to the case of LIC Vrs Raj Vasireddy Komlavalli Komba & Ors. (1984 ) 2SCC 719, where Hon’ble Supreme Court clearly  stated that, the acceptance an insurance contract may not be completed by mere retention of the premium or preparation of the policy document rather the acceptance must be signified by sole acts or agreed on by the parties or from which the law raise a presumption of acceptance”.
29.  We may think it proper to read  Clause 4(6) of the Insurance regulatory and development authority (protection of policy holder interest ) Regulation 2002, that:-“proposal shall be processed by the insurer with speed efficiency and all decision their shall be communicate  by in writing within a reasonable  period not exceeding 15 days form receive of the proposal”. In this regard the Honorable National Commission in  LIC of India & Anr Vrs. Pramila Basak (2021 NCJ 614 NC ) held that:-”We are of view that, eligibility of the proposal to avail a policy needs to be examine before acceptance of premium from him not afterwards. Acceptance of the premium pending decision pertaining to eligibility of the proposal is akin to putting the cart before the horse which is not possible”.
30. The insurer/OPs can certainly take the defense that ,the owner /Driver of the vehicle at  the time of accident had no valid driving license however the onus of proving that insure owner/ driver was will full breach  of the condition of insurance policy or the contract of insurance lies on the insurer . In the case of United India Insurance Company Ltd. Vrs. Lehru & Others (2003 )SCC 388:2003SCC (Cri) 641 a two  judge bench of Hon’ble Supreme Court has taken the view that, the insurance company cannot be permitted to avoid its liability that, the person driving the vehicle at the time of accident was not duly licensed, it was further hold that the  willful breach of the condition of the policy should be established .
31. We may quote Sec 19 of Indian contract Act i.e -“voidability  of  agreement without free consent”:-  “when consent to a agreement is caused by coercion , fraud or misrepresentation the agreement is a contract voidable at the option of the parties whose consent was so caused “. In case of fraud the contract is voidable at the option of the parties whose consent has been so obtained. It is necessary that the false statement have been made to induce the other party to enter in to the contract. Further law is well settled that, when there is any misrepresentation by one party, the contract is voidable at the option of the other parties but no such remedy is available if the parties seeking to avoid the contract had the means of discovering the truth with ordinary diligence. Fraud is essentially a question of fact and the person who alleges that has to prove the same (Smt. S Dhawan  Vrs. MS Sha Brother.AIR 1992 SC 155 ). Here ,in this case nothing pleaded or material placed on the record that deceased insured has played Fraud or misrepresentation while obtaining the insurance policy covering PA of Rs. 15,00,000/-.
32. The insurer, while accepting the premium form the owner of the vehicle towards compulsory personal accident cover, they are expected to verify if the owner has valid Driving Licenses and on being satisfied with the insurability of the owner, risk has been taken by the insurer and at this peril it would be un reasonable to place such a high burden on the nominee/complainant to make inquiry with RTOs all over the country to ascertain the driving license of his  deceased brother at this peril.
33. Here, in this case the condition prescient for acceptance of the premium is the valid DL of the owner of the vehicle. It would be logical for an underwriter to accept the premium verifying the DL of the owner of the vehicle and not otherwise. Therefore by the very fact that the insurer/ the O.Ps accepted the premium is satisfied itself the condition precedent i.e valid DL of the deceased owner. As such afore said submission of the learned counsel of the OPs is not acceptable in the present facts & circumstances of this case. 
34. The insurer /O.Ps have not adduced any scrap of paper to show that, the contract of insurance pending in-want of DL of the deceased owner vehicle. Here in this case neither the investigating office of the police station where the FIR is lodge has sized any DL of the deceased nor any Joint Inspection Report of the Fatal Accident has whisperer about the Driving license of the decease owner /driver of the vehicle so also the complaint has not filed any driving license of his deceased brother does not necessarily mean that the decease had no valid DL at the time of accident. Nothing material placed in the record to proved that deceased had no valid driving license at the time of accident. It is not proper to hold on mere presumption that, owner/driver of the vehicle had no valid DL at the time of accident in absence of cogent evidence in this regard rather the undisputed opinion of the investigator placed on the record  that:-“ with reference to the case we found that insured only posses learner license” bear much importance.
35.  On perusal of the policy schedule exclusion clauses i.e. Driver clauses it is found that,:- “Driver clause 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 license may also drive the vehicle and that such a person satisfy the requirements of rule 3 of the Central Motor Vehicle Rule 1989”. As such we found nothing policy condition is violated.
36. Based on above discussion we are unable to conclude that, the O.Ps /insurance company is not liable to pay the insurance benefit to the complainant under the said policy.
37. The Learned Counsel for the O.Ps/Insurer submitted that, as per the term and condition complainant should register the death claim before the insure through Toll Free Phone Number as mentioned in policy copy but in this case complainant never taken any steps to lodged the claim through toll free number nor he has informed the insurer through Regd. post or by Email. So also the complainant has not filed the death claim in time as per the term and condition of the policy as same is barred by limitation is not acceptable for that, on perusal of  the record it is  found that accident is repotted earliest before the law enforcing authority vide FIR No.0251 dt.20.05.2022 of Bolangir Town Police Station .
38. It would this be seen that, the complainant was obviously under depression  on account of accident  of  his brother  and that may be  the reason he was  not able to give the requisite notice to the insurer through tolled  free telephone number.  The state of mind of a brother on the sudden death of his brother cannot be understood .The complainant could never be expecting such a sudden death of his brother. All the human beings could not react uniformly to a similar event in their life. It is quite likely that the complainant was so much overwhelmed with grief on account of sudden death of his brother that, he went in on deep depression. Such a person would obviously not be in a position to approach to insurer unless & until   he is able to come out of the depression from which he is suffering. Therefore, in our opinion, though the complainant not being able to submit the claim through tolled free number to the insurer still the insurer ought to have considered the claim on merits on received of information of loss in any manner. (Reliance may  placed on the Circular dt. 20.09.2011 issued by the Insurance Regulatory & Development Authority where in repudiation on the ground of delay intimation was deprecated AND on the judgment of  the Honorable National Commission in Santosh Umakant vrs TATA A.I.G General Insurance Co.Ltd. reported in 2019, NCJ 599(NC), ) where it is held that repudiation of claim merely on delayed intimation is not justified . 
39. Based on the above discussion we are of the view that, the complainant being the nominee is entitle to the benefit which is available under the said insurance policy    No.P0022400020/4113/108114 and there is unfair trade practice & deficient service on the part of Ops /Insurance company caused financial hardship & mental agony may not be disputed as such the Ops/insurance company is liable to compensate by  the Ops/Insurance Company and insurance benefit with interest is payable  within a stipulated period of time.
40. Loss caused to the insured on 06.05.2022 and this complaint is present on 18.11.2022 i.e within a  period of time as prescribed under C.P. Act . As insurance claim of the complainant is not yet settled there is sufficient cause of action to present this complaint and in view of the afore said discussion it is well within the jurisdiction of this Commission .Further in absence of cogent evidence in the record the   preliminary objections raised by the Ops that, complaint  is barred by principle of estoppels, waiver, acquiescence, limitation, non joinder and misjoinder of necessary parties are rejected.
41. On the basis of the above discussion  and settled principle of law we are of the considered view  that, the complainant is entitled for insurance benefit under the said insurance policy which was in force as on date of occurrence and the insurer/OPs have  neglected for settlement of claim .We are  we are of the opinion that , the Ops are  playing Unfair Trade Practice and   deficient service. Hence it is ordered.

O R D E R

This complaint is allowed in part on contest against the Ops. The Insurance Company / OPs are  directed to pay the insurance benefit of Rs 15,00,000/- (fifteen-Lakh) under the  said policy    vide No.P0022400020/4113/108114 to the complainant along with interest @ 9% P.A from the date of filling of this complaint i.e 18.11.2022  till its actual payment. And further OPs are directed to pay litigation cost of Rs.10,000/- to the complainant .This order is to be complied within  four weeks from the date of receiving of this order failing which the insurer /Ops are liable to  pay interest @ 18 % per annum over the said awarded amount since the date of this order  till its actual payment.  This consumer Complain is partly allowed in above terms. The pending application if any is also stands disposed off.

Dictated and corrected by me.

SD/-

President

I   agree.

SD/-

Member                            

Pronounced in open Commission today on this  27^th   July, 2023 under the seal and signature of this Commission. The pending application if any is also disposed off accordingly.

Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly.