Order No. 19 Dt. 22.04.2015
This is an application filed U/S 12 of the Consumer Protection Act, 1986 by Sri Prabhat Barman,son of.late Khoka Barman and by Dakhon Barman, wife of Prabhat Barman, praying for an order, to pay insurance claim of Rs.100000/- along with Rs. 30000/- for harassment and mental agony and Rs. 10000/- for cost of litigation to be paid by O.P for their repudiation of the claim of personal accidental policy of their son who has died due an accident.
The further case of the Petitioners No. 1 and 2 is that they are residing at village Haldibari under Police Station Gazole of Malda District and their son Dipu Barman purchased one Yamaha Motor Cycle and made a personal accident policy from United India Insurance Co. and the policy being valid from 31.01.2012 to 30.01.2013 and their son died on 23.06.2012 which is within the validity period of insurance policy, due to motor cycle accident on road and a Police Case being FIR No. 235/12 dt. 23.06.2012 u/s. 279/304(A) was filed and police submitted charge sheet for the unnatural death of their son and also the petitioners intimated the death of their son to the opposite party O.P. and also submitted all documents but the Insurance Company repudiated the claim and for that reason they have filed this case.
O.P. No. 1 is United India Insurance Co. Ltd. working from Divisional Office, Joy plaza Shopping Complex, Rathbari, Malda contested the case.
O.P.1 filed written statement and contested the case contending inter-alia that the petitioners are not entitled to get any compensation as the allegations are found to be false and also they suppressed real facts and also their son had no effective driving license in accordance to the provision of Rule 3 of the Central Motor Vehicle Act, 1989 at the time of the accident and also the petitioners did not file the driving license of the diseased son on the basis of mandatory provision of the policy condition and there is no cause of action and hence, the case be dismissed.
On the pleadings of the parties following issues are framed
- Whether the case is maintainable?
- Whether there is any cause of action to file this case?
- Whether there has been any deficiency in service on the part of the ops?
- Whether the complainant is entitled to get the relieves as prayed for?
::DECISION WITH REASONS::
Issue Nos. 1,2,3 and 4
All the issues are taken up together for the sake of brevity and convenience of discussion.
In support of the case the petitioners submitted 10 documents, Ext.-1 (Copy of FIR), Ext.-2 (Copy of Charge Sheet), Ext. – 3(Copy of Seizure List of Gazole P.S.), Ext.-4 (Copy of P M Report of Dipu Burman), Ext.-5(Copy of Voter Card), Ext.-6 (Copy of Pan Card), Ext.-7 (Copy of Insurance Policy of Motor Cycle, WB-66L/3251), Ext.-8 (Copy of RC Book), Ext.-9 ( Letter of Death Intimation), Ext.-10 (Repudiation Letter). On the other hand though O.P. did not adduce any evidence but filed one xerox copy of one document which has been marked as Ext.-A, is already marked as Ext.-7 as produced by the petitioners.
To prove their case, petitioner no. 1, Prabhat Barman was examined as P.W.-1 while the defense adduced Sri Samir Mandal as O.P.-W. The petitioner Prabhat Barman categorically stated in his evidence that his son Dipu Barman purchased one Motor Cycle having Registration No. WB-66L/3251 and had an insurance policy in the name of Motor Cycle / Scooter Package Policy and the insurance was valid from 31.01.2012 to 30.01.2013 and this insurance was done by Insurance Company- O.P. & to that effect the Insurance Company issued the same insurance policy. Sri Prabhat Barman also stated in his evidence that his son was a pillion rider at the time of accident and his son-in-law Santosh Barman was driving the motorcycle and the same motor cycle met an accident as per chasing by a truck bearing no.WB- 23/9448 and Sri Prabhat Barman as witness was also cross-examined by O.P. wherein the witness categorically stated that his son had no driving license.
From the exhibited documents it appears that Prabhat Barman’s son-in-law Santosh Barman who had valid driving license was driving the motor cycle on road and it becomes crystal clear that the said motor cycle met an accident and the accident took place on 23.06.2012 between the offending truck and the victimized motor cycle in which Dipu Barman,son of the petitioners, was the pillion rider who sustained injuries and their son Dipu Barman died thereafter for the said injury and the police seized the said motorcycle, driving license of Santosh Barman, who drove the said motorcycle and also seized the driving license of Sanatan Sarkar, driver of the offending truck. The accident took place within the stipulated period of insurance coverage from 31.01.2012 to 30.01.2013.
All the documents along with oral evidence it is established that Sri Santosh Barman who had valid driving license with him which was seized by the police, was driving the motorcycle and Dipu Barman who was injured & succumbed to death was the pillion rider and diseased Dipu Barman did not drive the motor cycle on road. On careful consideration of the provisions under Motor Vehicles Act, 1988 and Central Motor Vehicle Rules, 1989 it came into our sight that both the act and the rule are not in any way contradictory in respect of the issues of the case but alternatively it appeared that the Insurance Company insured the said motor cycle of diseased Dipu Barman without considering requisite formality of checking driving license of Dipu Barman, in case it is mandatory, which itself is contradictory and it implies that holding of driving license may not be a requisite formality for granting insurance policy. Besides, “there is a provision in Page-2 of the policy schedule as: Persons or classes of persons entitled to drive- Any person including insured provided that a person holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective leaner’s license may also drive the vehicle and such a person satisfies the requirements of Rule -3 of Central Motor Vehicle Rule, 1989”. As it appears that at the time of accident the said motor cycle was driven by Santosh Barman having valid driving license and the son of the petitioners that is diseased Dipu Barman, the insured, was the pillion rider and was not driving the motor cycle, therefore, the Insurance Company is bound to pay the claim of the petitioners as per the policy norms.
As per Hindu Succession Act, 1956, here in this case, the mother is the only first class heir and thus petitioner no. 2 Dakhon Burman, mother of diseased Dipu Burman & also wife of petitioner no. 1 Prabhat Burman, alone, will receive the claim amount.
In the result, the claim case succeeds.
Proper fee paid.
Hence, ordered
that the D.F.C Case No. 34/2014 be and the same is allowed in part on contest against the O.P.1. The Petitioner No. 2, Dakhon Burman, do get an award of Rs.100000/- as per death of his son under Motor Cycle / Scooter Package Policy within 60 days from the date of this order failing the amount would carry interest @ 6% p.a. till recovery and the petitioner will be at liberty to put the decree in execution.
A copy of this order be supplied to each of the parties free of cost.
