IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Monday the 07thday of March, 2022.
Filed on 08-09-2021
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.P.RSholy, B.A.L, LLB (Member)In
CC/No.193/2021
between
Complainants:- Opposite parties:-
1. Sri. MujeebRehman 1. The Manager,Regional Office of
S/o Late Fazaludeen New India Assurance Co., 36/707
PuthanVeettil, Kandankulathy Towers, P.B.No
Thammallackal North 1049,M.G.Road, Cochin
Harippaad. (Adv. T.S.Suresh)
2. Smt. Nabeezath
W/o Late Fazaludeen
-do- -do-
3. Najeema
D/o Late Fazaludeen
-do- -do-
(Adv. M.Thaha)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 35 of the Consumer Protection Act, 2019
1. Complainants case briefly stated is as follows:-
2nd complainant’s husband and father of other two complainants late Mr. Fazaludeen was using a two wheeler bearing registration No. KL.04-AD-2350 for the last two years after gifting it by his son –in-law Muthukoya who received from the same from this nephew one Shamsudheen who is now working abroad. As per records Shamsudheen is the registered owner
of the vehicle. The vehicle is insured with the opposite party for a period of one year from 15/12/2020 to 14/12/2021 and the premium was paid by late Fazaludheen. The vehicle is having a personal accident cover of Rs.15,00,000/- and the additional premium paid was Rs.275/-. On 23/4/2021 at 7 PM while Fazaludheen was riding the vehicle in front of his shop near Karuvatta in Kollam-Alappuzha National Highway another vehicle hit on the same. Fazaludheen was admitted at M/s Aster Medicity ,Ernakulam and he succumbed to the injuries on 25/4/2021. The offending vehicle had no registration certificate and no valid insurance. Though as per Sec. 164A of the Motor Vehicles Act the complainants are entitled to get compensation amount, due to the technical reason that at the time of incident, the rider of the vehicle was not the registered owner it is arbitrarily denying by the opposite party.
2. Complainants as the legal heirs of the deceased are not entitled to claim in Motor Accident Claims Tribunal because of the dictum of Hon’ble Supreme Court in (2007)9 SCC263, (2008) 3 SCC193 and (2007) 3 SCC 700 and other similar decisions. The insured owner of the vehicle entered into a contract with the opposite party as per that contract opposite party is bound to indemnify the insured owner/driver in case of death or injury subsequent to an accident.
3. In Ramkhiladi Vs. United India Insurance Company (AIR 2020 SC 527) it was held that the insurance company has a contractual obligation and that obligation is to be fulfilled by paying the assured sum to the legal heirs of deceased, considering that he was in the shoes of the registered owner/driver at the time of the incident. Facts being so opposite party cannot simply escape from the said insurance contractual obligation and accordingly opposite party company is bound to pay the compensation assured by Sec.164A of the Motor Vehicle Act. On 3/7/2021 1stcomplainant issued a legal notice to the opposite party and its branch manager. Opposite party preferred to keep silence on that notice but the branch manger furnished a reply stating that at the time of accident the deceased was not the registered owner of the two wheeler under consideration and so the complainants are not entitled to get any compensation. The view taken by the opposite party is arbitrary and it is against the spirit of Sec. 164A and against the dictum of Ramkhiladi’s case. Complainants as the legal heirs of deceased Fazaludeen are entitled to get at least the compensation mandatorily fixed by the statute, ie, Rs. 5 lakhs with interest and costs. Hence the complaint is filed claiming Rs.5 lakhs along with interest and cost.
4. Opposite party filed a version mainly contenting as follows:-
The complaint is not maintainable either in law or on facts. The complainants approached this commission with utmost unclean hands by suppressing material facts. There is no deficiency of service as alleged in the complaint.
5. Opposite party admits insurance policy with respect to Motor cycle bearing Reg.No.KL-04 AD-2350 and the period of insurance is from 15/12/2020 to 14/12/2021 in the name of one Shamsudeen. At the time of issuing the policy original policy and its conditions were handed over to the insured.
6. The relief u/s 163A of MV Act is not enforceable through this Commission. It is enforceable only through the Motor Accidents Claims Tribunal. There is absolutely no contract of insurance with the insured to indemnify the owner/driver in case of death or injury on account of accident. The contract of insurance is only to indemnify owner cum driver and is different from owner/ driver as stated in the complaint. The ruling referred in the complaint is not applicable in this case. This opposite party has no contractual obligation to indemnify the complainant as per the terms and conditions in the policy. Personal accidental claim is available only to the owner driver of the vehicle and the relief u/s 163A of MV Act is enforceable through MACT.
7. The advocate notice dtd. 3/7/2021 was promptly replied on 16/7/2021. As per Sec. III personal accident cover is offered only to owner cum driver of the vehicle subject to following condition.
a. The owner –driver is the registered owner of the vehicle insured herein.
b.The owner-driver is the insured named in the policy.
c. The owner-driver hold effective license, in accordance with the provisions of Rule 3 of Central Motor Vehicle Rules 1989 at the time of accident.
8. As per above clause deceased Fazaludeen was not the registered owner of the vehicle nor the insured as per policy at the time of accident and so the opposite party has no liability. In thiscase no claim form is submitted by the complainants except the advocate notice dated 3/7/2021 for which proper reply was sent. Complainants are not entitled for any relief, compensation, interest and cost, since there is absolutely no deficiency of service as alleged. Hence the complaint may be dismissed with compensatory cost.
9. On the above pleadings following points were raised for consideration are:-
1. Whether there is any deficiency in service from the part of this opposite party as alleged?
2. Whether the complainant is entitled to realize an amount of Rs.5 lakh along with interest from the opposite party as prayed for?
3. Relief and costs?
10. Evidence in this case consists of the oral evidence of PW1 and Exts. A1 to A3 from the side of the complainants. Opposite party has not adduced any oral evidence Ext.B1 to B3 were marked.
Points No:1&2:-
11. Complainants are the legal heirs of late Fazaludeen. On 23/4/2021 at about 7 PM while the said Fazaludeen was riding a two wheeler bearing Reg. No KL.04-AD-2350 along Kollam – Alappuzha National Highway another vehicle hit on the same and Fazaludeen sustained serious injuries. He was admitted at M/s Aster Medicity Ernakulam and on 25/4/2021 he succumbed to the injuries. The motor cycle was gifted to him by son-in-law Muthukoya who got it from his nephew one Shamsudeen. The motor cycle was insured with the opposite party M/s New India Assurance Co. Ltd for a period of one year from 15/12/2020 to 14/12/2021 including Personal Accident cover of Rs.15 lakhs for which additional premium of Rs.275/- was paid. According to the complainants they are entitled for compensation under the Motor Vehicles Act but they are unable to file a petition u/s 164 A of the MV Act due to some technical reason. The vehicle which collided with the vehicle of late Fazaludeen had no registration certificate and no valid insurance. Ext.A1 is the copy of policy issued by the opposite party. Ext.A2 legal notice was sent on 3/7/2021 claiming compensation of Rs.15lakhs. Ext.A3 reply notice was sent of 16/7/2021 by the branch manager of the opposite party stating their inability to pay the amount since as per the records Shamsudeen is the registered owner and PA coverage is available only to the registered owner. Thereafter complaint was filed claiming an amount of compensation atleast Rs.5lakhs along with interest @ 12% from the opposite party. Opposite party filed a version admitting the insurance. However they contended that relief u/s 163A of the MV Act is not enforceable through this Commission and it is enforceable only through the Motor Accident Claims Tribunal. It was contented that Personal Accident cover is offered only to owner cum driver of the vehicle subject to certain conditions. Since late Fazaludeen was not the registered owner of the vehicle and so that there was no contract between opposite party and late Fazaludeen, complainants are not entitled for any relief. It was also contended that there was no deficiency of service from their part and so the complaint is only to be dismissed.
12. 1st complainant who is none other than the son of late Fazaludeen was examined as PW1 and Ext.A1 to A3 were marked. Opposite party has not adduced any oral evidence Ext.B1 policy with conditions, Ext.B2 reply letter dtd. 16/7/2021 and details of the registration of the vehicle were marked. Relying upon the oral evidence of PW1 coupled with the documents the learned counsel appearing for the complainants pointed out that they are entitled for the relief claimed. In support of the contentions the learned counsel relied upon a ruling of Hon’ble Supreme Court of India in Ramkhiladi Vs. United India Insurance Company (AIR 2020 SC 527). It was pointed out that as per the citation the driver of the vehicle will step into the shoes of the owner and so here in this case late Fazaludeen which kept into the shoes of the owner Shamsudeen and so complainants are entitled for the Personal Accident Cover. Per contra the learned counsel appearing for the opposite party pointed out that the said decision is not applicable in this case. It was contended that in the said case the Hon’ble High Court of Rajasthan allowed claim u/s 163 A of the Act which was disallowed by the Hon’ble Supreme Court and considering the peculiar circumstance of the case an amount of Rs. 1 lakh was allowed. In support of this contention the learned counsel appearing for the opposite party relied upon the decision of the Kerala State Consumer Dispute Redressal Commission, decision of the Hon’ble National Consumer Dispute Redressal Commission and the decision of the Hon’ble High Court of Kerala in which it was held that the Personal Accident Cover is only available to owner cum driver with certain conditions. First of all it was pointed out that as per the decision of the Hon’ble Supreme Court in Haryana Financial Corporation Vs. M/s Jagadamba Oil Mills &Anr.(2002 (2) KLT 24) certain directions are given with regard to application of precedents. It was held
“ Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid’s theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes.
Circumstantial flexibility, one additional or different fact my make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
The following words of Lord Denning in the matter of applying precedents have become locus classicks.
“Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases(as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.”
13. In support of his contentions the learned counsel appearing for the opposite party relied upon the decision of the Hon’ble State Consumer Disputes Redressal Commission ( The Divisional Manager Oriental Insurance Company Ltd Vs. Aysha)dtd.24/10/2019 in Case No. A/15/754 It was held
“In the matter of Sushila and Others Vs. PankajMahajan and another, the Hon’ble High Court has observed that the reference to owner –driver of Punjab and Haryana reported in 2014 ACJ 935 in the policy conditions must be understood as the owner, who is capable to driving and who is driving the vehicle at the relevant time, it shall not be understood as the owner/ driver(owner or driver) This is evident from regulations that requires owner-driver to be duly license to drive the vehicle. In the matter of the Oriental Insurance Company Limited Vs. KavitaSinghal and Others Hon’ble High Court of Delhi observed that the Personal Accident Cover is available to the owner of the vehicle holding and effective driving license. Anybody driving the vehicle with or without permission of the owner cannot be taken as owner-driver. Hon’ble High Court of Kerala in the matter of United India Insurance Company Limited Vs. Vijayarajan reported in 2009 (3) KLT 269 held that the policy contemplates that compensation is payable subject to the fulfillment of certain conditions that includes owner-driver holds an effective driving license in accordance with the provisions of Rule 3 of Central Motor Vehicles Act, 1989 at the time of accident. The legal principles in the above rulings are squarely applicable here also. Admittedly, driving license of the deceased husband of the first complainant was not produced before the insurance company, nor it was produced before the District Forum. In the circumstances it is clear that the contentions of the respondents 1 to 4 is only to be rejected.”
14. It was held by the Hon’ble National Consumer Disputes Redressal Commission in United India Insurance Co. Ltd. Vs. Havaben (2013 SCC Online NCDRC 793)
“Perusal of insurance policy clearly reveals that this policy was taken by OP No.2 through partner Suleman Haji Ismail and personal accident cover for owner driver was provided to the extent of Rs.2,00,000/-. Section 4 of the package policy reveals that in case of death of owner- driver of the vehicle in direct connection with the vehicle insured, etc, he was entitled to 100% compensation. The proviso 4 of Section 4 runs as under. This cover is subject to (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. This proviso makes it very clear that owner-driver means, he must be registered owner of the vehicle and his name must be shown as insured in the policy and further, owner-driver must hold effective driving licence at the time of accident. Learned Counsel for the petitioner has also placed Annexure at Page 36 of the paper book and Clause of GR 36 runs under. Compulsory Personal Accident Cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liability only and Package policies. The owner of insured vehicle holding an effective driving licence is termed as Owner-Driver for the purpose of this section. Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/ dismounting from or travelling in the insured vehicle as a co-driver.”
15. It was held by the Hon’ble High Court of Kerala in United India Insurance Co. Ltd. Vs. Vijayarajan and Others (2009 (3) KHC 158)
“Provided always that
1)the compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum as per schedule during any one period of insurance.
2) No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.
This cover is subject to
(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 licence, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of the accident.
6. On a perusal of the said clause, it becomes abundantly clear that the contention of the claimants is meritless. After referring to owner driver, the policy contemplates that compensation is payable subject to fulfillment of certain conditions. They include the requirement that the owner driver is the insured named in the policy and what is further more that the owner driver is a registered owner of the vehicle insured. When one considers the admitted facts of this case, it is clear that neither was the deceased the registered owner of the vehicle nor was he the insured named in the policy. If that be so, it is clear that the contention of respondents 1 to 4 that they are entitled to the compensation which is provided in terms of the personal accident cover to the owner driver is only to be rejected. We do so. The upshot of this discussion is that the claim of respondents 1 to 4 against the appellant is without any justification and the Tribunal clearly erred in ordering the appellant to pay the amount to the respondents. Accordingly, the appeal is allowed and we vacate the direction of the Tribunal against the appellant.”
16. It was held by the Hon’ble Supreme Court in VikramGreentech India Ltd and Anr. Vs. New India Assurance Co. Ltd.(AIR 2009 SC 2493)
“15. An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberimma fides i.e. good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract. The four essentials of a contract of insurance are, (i) the definition of the risk, (ii) the duration of the risk,(iii) the premium and (iv) the amount of insurance. Since upon issuance of insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer. The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in re-writing the contract or substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy.[General Assurance Society Ltd. Vs. Chandumull Jain and another, AIR 1966 SC 1644, Oriental Insurance Co. Ltd Vs. Sony Cheriyan (1999) 6 SCC 451 and United India Insurance Co. Ltd Vs. HarchandRaiChandanLal(2004)8 SCC 644.”
17. So applying the principles laid down in the decisions it can be summarized that the personal accident is subject to certain conditions.
(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 licence, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of the accident.
18. Here in this case admittedly late Fazaludeen is not the registered owner of the vehicle. From the complaint and from Ext.A1 (B1) it is gathered that the name of insurer is Shamsudeen. From the complaint it is seen that Shamsudeen gave the vehicle to one Muthukoya who is the son – in –law of Fazaludeen and Muthukoya gave the vehicle to Fazaludeen. During cross examination though PW1 admitted that deceased Fazaludeen is having driving licence it is not seen produced. So it can be seen that the conditions such as registered owner is the insurer and the owner having driving licence is not satisfied in this case. On a reading of the complaint along with affidavit it is seen that complainants are unable to file claim petition u/s 163A of the MV Act due to some technical reason since the rider of the vehicle was not the registered owner. The same is applicable to personal accident cover also.
19. There is yet another hurdle in this case.As pointed out by the learned counsel appearing for the opposite party no claim petition was filed before the opposite party for consideration. Only after sending Ext.A2 notice to the opposite party claiming an amount of Rs.15 lakhs this complaint is filed. Only if a proper claim application is filed opposite party will be able to process the same. If the claim is repudiated complainant will get cause of action and they can approach this Commission claiming the benefits. Here without even filing a claim petition the complaint is filed after sending a legal notice which was promptly replied. In Para 2 of the complaint it is stated that personal accident coverage is Rs.15 lakhs. However in the relief portion it is stated that atleast Rs.5 lakhs along with interest may be granted. If that is so it can be seen that the complaint itself is vague. The details of the offending vehicle is not mentioned in the complaint and even the name of the person who was driving/riding the same is not mentioned on a contention that it has no registration certificate and no valid insurance. Documents such as FIR, copy of Final Report etc is also not seen produced for perusal. Complainants have not received any repudiation letter since a proper claim form was not furnished before the opposite party. If that is so it can be considered that the complaint is premature.
20. In said circumstances we are of the opinion that the precedents relied upon by the learned counsel appearing for the opposite party is squarely applicable in this case since they are with respect to allowing Personal Accident Claim. As discussed earlier for allowing Personal Accident Claim three conditions specified in the insurance policy is to be satisfied. Here late Fazaludeen is not the registered owner of the vehicle and he is also not the insurer. His licence is also not seen produced which is also one of the conditions. Hence it can be safely concluded that complainants are not entitled for any amount as stated in the complaint and so these points are found against them.
21. Point No :-3
In the result, complaint is dismissed. Parties are directed to bear their respective cost.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 07th day of March, 2022.
Sd/- Sri.S.SanthoshKumar(President)
Sd/- Smt.Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - MujeebRahman (Complainant)
Ext.A1 - Copy of Insurance Policy
Ext.A2 - Copy of Legal Noitice
Ext.A3 - Reply Notice
Evidence of the opposite parties:-
Ext.B1 - Policy copy with Condition
Ext.B2 - Copy of Reply Notice dtd.16/7/2021
Ext.B3 - Copy of RC form
// True Copy //
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
