Haryana

Ambala

CC/120/2013

KARNAILO DEVI W/O SH JEET SINGH - Complainant(s)

Versus

THE NEW INDIA ASSURANCE CO. LTD. - Opp.Party(s)

V.P. KAUSHAL

31 May 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

Complaint Case No.      : 120 of 2013

Date of Institution         : 17-05-2013

Date of Decision            : 31.05.2017

Smt. Karnailo Devi wife of Sh. Jeet Singh, resident of village Kalal Majri, Tehsil Naraingarh, District Ambala.                                                           

……Complainants.

Versus

The New India Assurance Company Ltd. Branch office at 6269, Nicholson road, Ambala Cantt. through its Branch Manager.

                                                ……Opposite Party.

Complaint Under Section 12 of the Consumer Protection Act

BEFORE:   SH. D.N. ARORA,  PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.                  

Present:       Sh. V.P. Kaushal, counsel for complainant.

                   Sh. Mahinder Bindal, counsel for opposite party.

ORDER.

                    In nutshell, brief facts of the complaint are that the son of the complainant namely Jaswinder Singh son of Sh. Jeet Singh died in a road accident on 29-01-2012 while driving Motor cycle bearing registration No. HR-04B-4461 which is owned/registered in the name of Shri Subhash Chand son of Jeet Ram. The aforesaid motor cycle was lying insured with the OP, vide policy No. 35350131110100007264 and as per cover note/policy issued by the OP, the OP have received premium insuring the risk cover of owner and driver and accordingly as per said policy, the complainant submitted a claim with the OP for release of claim to her but the OP vide its letter dated 01-03-2013, wrongly and illegally repudiated the claim of the complainant with vague objections that the vehicle was being driven by Jaswinder Singh, whereas it was lying registered in the name of Subhash Chand. As per the policy, the OP charged PA cover owner and driver and not owner-cum-driver as wrongly opined by the OP in its letter dated 01-03-2013. Rather it seems that the OP is extracting money under the grab of premium from the innocent persons. The complainant being mother is the first legal heir of the deceased. It is further submitted that the complainant along with her husband had filed a claim petition but the same was declined on the round that the deceased was not third party. However, in its finding by the learned MACT, Ambala, it was decided/settled that the deceased had died while driving the Motor Cycle in question and since the OP has received and accepted the premium covering the risk cover of owner and driver, the complainant being mother/legal heir of deceased is legally entitled for the claim as per said policy. The OP was also served with legal notice dated 24-04-2013, which was duly received and acknowledged by the OP, but neither the OP replied the said notice nor as yet complied with the said notice. Hence, the complainant has prayed that the OP be directed to release the legal claim along with interest @ 18 % per annum  from the date of death of deceased Jaswinder Singh, Rs. 20,000/- on account of harassment, mental torture and agony and Rs. 20,000/- as litigation expenses.

 2.               Upon notice, OP appeared through counsel and filed written statement raising preliminary objections qua maintainability of complaint.  On merits, it is not disputed that the registered owner of motorcycle bearing No. HR 01 B-4461 is Sh. Subhash Chand and the policy in question was also in the name of Sh. Subhash Chand, which was valid for the period from 22-11-2011 to 21-11-2012. As per the said policy, the personal accident risk of the insured/registered owner of the motorcycle in question while driving the insured motorcycle against a sum of Rs. 1 lac in case of his death. It is also submitted that the coverage was for registered owner only who dies while driving and not for the owner and driver. There cannot be a comment against the verdict given in any MACT claim petition as alleged that is an appealable order and can be rectified by the higher court but it is mentioned here that the complainant is not ready to accept the legal preposition behind the observation given in such cases. The court gave its observation on symbolic issue and not on actual issue. It was observed by the court that a driver cannot be a third party as he stepped into the shoes of owner while driving the vehicle and it was symbolic ownership and not the actual ownership whereas personal accident claim under the insurance policy is only meant for registered owner-cum-driver and not for symbolic owner. It is further submitted that the clam of the complainant was legally repudiated as per terms and conditions of the policy. As such there is no deficiency on the part of the opposite party.  Rest of averments made by the complainant are denied. Thus the OP has prayed that there is no fault on his part and sought for dismissal of complaint with costs.

3.                To prove his version, complainant tendered affidavit as Annexure CX alongwith documents as Annexures C-1 to C-11 and closed her evidence.  On the other hand, counsel for OP tendered affidavit RX and documents as annexure R1 and annexure R2 and closed the evidence on behalf of the OP.    

4.                We have heard learned counsel for the parties and gone through the case file very carefully. Counsel for the complaint has contended that the complainant is entitled for compensation as per judgment/award given by Learned Motor Accident Claims Tribunal, Ambala in MACP No. 7 of 2012 titled as “Karnailo Devi vs. Subash Chand & Anr” decided on 30-03-2013, vide which observation is given that since the deceased who himself was driving the motor cycle, thereby stepped into the shoes of the owner and cannot be said to be third party. In this regard we are of the view that it is not sufficient to say that the driver of the motor cycle, had borrowed from the owner and thereby stepped into the shoes of the owner and cannot be said to be third party. Rather it has to be proved that the borrower is also covered under the policy as we cannot go beyond the terms and conditions of the policy.

                   We have perused the insurance policy annexure C8 placed by the complainant, vide which, clearly shows that the motor cycle in question was insured in the name of Subhash Chand not in the name of deceased Jaswinder Singh. In view of the above said discussion, we can presume that the deceased was only borrower of the said motorcycle. The complainant failed to place any rule/condition regarding the liability of the opposite party towards the borrower of the motorcycle. Further, complainant has also failed to place any terms and conditions that the insurance company under the comprehensive insurance policy covering the owner on the ground of deceased having stepped in the shoes of the owner, whereas deceased was only borrower.

                   We have gone through the case law delivered by Hon’ble High Court, Chandigarh in case titled as “Oriental Insurance Co. Ltd. v. Darshnai Devi and others 2015 ACJ 165”, wherein it is held that Motor Insurance-Borrower of vehicle-death of-personal accident cover-liability of insurance company-deceased sustained fatal injuries while driving a borrowed motor cycle-Tribunal fastened liability on the insurance company-insurance company contended that deceased was neither the registered owner nor was insured under policy and personal accident cover is available to the registered owner only when he himself is driving the vehicle-whether deceased can be treated as owner of motor cycle and insurance company is liable to pay compensation under personal accident cover- Held: no. We further gone through the case law rendered by Hon’ble Punjab & Haryana High Court, Chandigarh titled as “M/s Reliance General Insurance Company v. Ranjit and another, FAO No. 6704 of 2011 (O&M)”, which are squarely covered the facts of the present case.  The deceased was neither the owner of the motorcycle in question nor he was insured with the opposite party. Hence, the deceased does not fall in the category of owner-cum-driver, whereas he was only a borrower.

5.                 In view of the aforesaid case laws, which are fully applicable on the facts and circumstances of the present case, hence, complainant is not entitled for any amount as prayed by her. As such, we do not find any deficiency in service on the part of the opposite party, hence, the complaint is hereby dismissed with no order as to costs. Copies of the order be sent to the parties concerned. File after due compliance be consigned to record room.

 

ANNOUNCED ON: 31.05.2017.                                                    Sd/-

                                                                                               (D.N. ARORA)

                            PRESIDENT       

         

                                                                                                 Sd/-

(PUSHPENDER KUMAR)

                                                                                      MEMBER

                                                                                               Sd/-

            (ANAMIKA GUPTA)

                                                                                      MEMBER