This C.C. came before us for hearing in the presence of Sri. K. Ravindra Swamy, Advocate for complainant and of Sri K. Rama Chandra Murthy, Advocate for opposite party; upon perusing the material papers on record; upon hearing arguments and having stood over for consideration, this Forum passed the following:-

O R D E R

(Per Smt.V.Vijaya Rekha, Member)

This complaint is filed under section 12(1) of the Consumer Protection Act, 1986. 

2.       The brief facts as stated in the complaint are that the husband o complainant is the owner / driver of lorry bearing No.AP-20-X-6828, insured the same with the opposite party vide policy No. 61090231130100019743.   The policy was in existence from 05-11-2013 till 04-11-2014.  During its validity, the husband of complainant was died in a road accident, while driving the insured vehicle from Sarapaka of Khammam District to Bidar with a load of ITC company limited.  The accident was occurred on 30-05-2014, when checking the air in tyres by parking the lorry at Nakarekal cross roads of Inupamula village, Nalgonda District.  The crime vehicle bearing No.AP-24-TB-6669 came from behind with a load of sand, hit the insured vehicle on back side with rash and negligent manner, due to which, the husband of complainant / policy holder sustained severe bodily injuries and died on the spot.  The police registered the case vide crime No.94/2014 and submitted panchanama and final report.  Thereafter, claimed the opposite party for assured amounts under policy.  The complainant alleges that the opposite party repudiated her claim basing on flimsy grounds only to escape from their liability and as such filed the present complaint by praying to direct the opposite party to pay Rs.4,00,000/- towards compensation together with interest @24% per annum, to pay Rs.50,000/- towards damages and to pay Rs.10,000/- towards costs.

3.       Along with the complaint, the complainant filed affidavit and photocopies of following documents, those were marked as Exhibits A1 to A12.

4.       On being noticed, the opposite party filed counter by denying the entitlement of insurance amount under said policy and submitted that the liability of insurer under personal accident coverage of said policy provided to the owner / driver whilst driving the vehicle, including mounting into / dismounting from or travelling in the insured vehicle as a co-owner and according to general regulation – 36 of Motor tariff personal accident cover is also provided to the owner / driver holding a valid driving license, whilst driving the vehicle including mounting into / dismounting from or travelling in the insured vehicle as co-driver only.  But at the time of accident, the deceased was checking the air in tyres out of the lorry, therefore, the opposite party has no liability to pay any damages to the complainant and prayed to dismiss the complaint with costs.

5.       The complainant filed written arguments with the same averments as mentioned in the complaint.  In addition to the counter averments, the Asst. Manager of Khammam Branch filed chief examination affidavit on behalf of opposite party.  Written arguments of opposite party also filed by submitting that the deceased / husband of complainant was not driving the lorry at the time of accident, the accident was taken place while he was checking the air in tyres out of the lorry.   Therefore, there is no entitlement under personal accident coverage.  Further it is also submitted that the rights and obligations of insured and the insurer are strictly governed by the terms and conditions of policy, therefore, no relaxation can be given on the ground of equity.

6.       Along with a petition vide IA.No.41/2015 the opposite party filed Certified copies of exhibits B1 and B2.

7.       In view of the above submissions, now the point that arose for consideration is,

          Whether the complainant is entitled to the relief

                    as prayed for?

Point:-                  

          There is no dispute regarding the issuance of commercial vehicle insurance package policy with personal accident coverage and its validity at the time of death of policy holder.  It is also not disputed that the cause of accident to the insured vehicle and other necessary requirements for entitlement.  The only dispute is with regard to the facts relating to cause of death of husband of complainant / driver of insured vehicle – whether it is covered under personal accident coverage of present policy or not?  It is the case of the complainant that her husband / policy holder was died in a road accident during the travelling, while checking the air in tyres of insured vehicle but the opposite party repudiated her claim basing on flimsy grounds.  On the other hand the opposite party resisted her case by contending that the death was not covered under personal accident coverage of said policy and as such rejected her claim.    According to terms and conditions of said policy and as per general regulation – 36 of Motor tariff personal accident coverage.   The present policy is provided to the owner / driver, that the owner / driver while driving the vehicle, mounting into / dismounting from or travelling in the insured vehicle as a co-owner.  But at the time of accident the husband of the complainant was checking the air in tyres, not travelling in the insured vehicle, in support of its case, the opposite party has cited the judgment in M/s. Suraj Mal Ram Niwas Oil Mills Pvt. Ltd. Vs. United India Insurance Company Limited and anr. (08-10-2010), in which, the Hon’ble Apex court had delivered its decision on violation of terms and conditions of policy by the insured but in the present case the policy holder / husband of complainant did not violate the terms and conditions in any way, therefore, we could not relied upon the same as the facts are not similar to the present case on hand.  After thoughtful consideration and perusal of record, it is clear that the driver of insured vehicle was died in a road accident on 30-05-2014 while travelling from Sarapaka to Bidar by insured vehicle.   The accident was taken place during the travelling while parking the insured vehicle on left side of National high way, evidenced under exhibit A4.  The crime vehicle bearing No.AP-24-TB-6669 dashed the insured vehicle from behind and also dashed the deceased, who checking the tyres of insured vehicle, sustained fatal injuries on vital parts and died on the spot, also evidenced under exhibit A4, it seems that the husband of complainant was died during the travelling in insured vehicle as a driver.  In general, the driver has to check the proper condition of tyres and other parts of vehicle as his duty.  Specifically, during long travelling, the driver of the vehicle has to check the entire condition of the vehicle according to the requirements.  Therefore, we feel that the accident was taken place when the deceased doing his duty as a driver while travelling in insured vehicle.  Therefore, repudiation of claim is unjust and against the principles of natural justice.  The insurance scheme is a social legislation, must not be repudiated on mere technical grounds.  In view of the same, the point is safely concluded in favour of the complainant by holding that the complainant is entitled the insurance amounts under personal accident coverage of said policy. 

10.     In the result, the complaint is allowed in part directing the opposite party to pay insurance amounts under personal accident coverage of commercial vehicle package policy  vide policy bearing No. 61090231130100019743 to the complainant together with interest @9% per annum from the date of declaration of ‘No claim’ (i.e.08-12-2014) till realization.  Further directed to pay Rs.1,000/- towards costs.

           Typed to my dictation, corrected by me and pronounced by us, in this Forum on this the 20^th day of January, 2016.                                                        

                     FAC President              Member

District Consumer Forum, Khammam

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:-

For Complainant:-                                                     For Opposite party:-   

       -None-                                                                           -None-

DOCUMENTS MARKED:-

For Complainant:-                                                     For Opposite party:-   

FAC President               Member

District Consumer Forum, Khammam.