Present         :           Sh. Ajmer Lal Pundeer, Advocate, Counsel for complainants.

                                    Sh. Atul Goyal, Advocate, Counsel for Opposite Parties No. 1                                          to 3.

                                    Shri Ram. Government Pleader of opposite party No.4.

ORDER BY AMRINDER SINGH SIDHU, M.A (Eng.),LLM,PRESIDENT

1. The complainant filed present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties. Complainants are legal heirs of deceased Late Sh. Vijay Kumar Dhiman Son of late Sh. Jaswant Rai, who had met with  an accident road on  while he was plying his Scooter bearing No. HR03 J 0785 on 18.10.2019, which was said Scooter bearing No. HR03 J 0785 was comprehensively insured under Motorized two wheelers package policy with the office of opposite Party No. 1 bearing Policy No 231303/31/2020/339 valid for the period from 11.05.2019 to 10.05.2020.  The said Policy  was purchased by deceased during his life time  wherein registered owner cum driver (deceased) was also covered for a sum of Rs. 15,00,000/- under section- III of the policy and specific premium of Rs. 360.00 was charged by the company.  The Opposite Party No. 1 is an office, which issued a policy of motor cycle bearing HR03 J 0785, Opposite Parties No. 2 and 3 are its controlling/claim settling officers on behalf of OP No. 1. Opposite Party No. 4 is a licensing authority who has issued three types of licenses to the deceased  during his life time at the time of accident/death, deceased was in possession of under mentioned three types of licenses as shown appendices as:-

It is pertinent to mention here that Sr. No. 1 was renewed for 5 years as the deceased had attain the age of 50 years at the time of its renewal and validity of erstwhile one time old license had expired and Old records must be available in the safe custody of office of Opposite Party No. 4. Complainants have crave the plea under sub section 9 (b) of section 38 of CP, Act 2019 and reserve its right to call for the old records of Driving License tabulated at serial No. 1 above in order to elucidate the true facts and circumstances with regards to authorization to drive two wheeler at the time accident in order to dispense with justice to the Complainants. That on 18.10.2019, deceased met with an accident near little ahead of old Labour Chowk of Sector 16/17 Panchkula (Haryana) when he was plying his scooter bearing No. HR03 J 0785 and died on the spot at PS, Sector-14 Panchkula (Haryana). The deceased was retired from the service of Punjab National Bank at Chandigarh as a scale-II officer on 31.08.2015 on attaining the age of superannuation. He enrolled as Clerk at Jalandhar in the year 1983 and thereafter was transferred to Chandimandir in the year 1991 and further posed as scale –I officer at Chandigarh in 2007. He used to attend his office on two wheeler and was in possession permanent Driving License for MCW which was expired in 2006 on attaining the age of 50 years and he got the said license renewed. Deceased purchased a car in the year 2002 and applied for another separate license to drive car and same was issued. In the meantime, inadvertently the expiry date of Driving License for MCW (C -3) lapsed in the year 2011. After the retirement in the year 2019 when the deceased came to know about the expiry date of Driving License (C-3), he applied afresh Driving License for MCW on 28.09.2019 but unfortunately the deceased was issued a Learner’s License which was valid upto 27.03.2020. but unfortunately met with an accidenton 13.10.2019.The demise accidental death of insured/registered owner of insured motor cycle bearing No. HR 03 J 0785, the legal heirs/Complainants approached the office of Opposite Party No. 1 through their insurance agent and lodged the claim under the provisions of their insurance policy bearing No 231303/31/2020/339 (C-2) within stipulated period in accordance with terms and conditions of the policy. After receipt of claim intimation, office of Opposite Party No. 1 appointed their one investigator namely Sh. S.K Jain, started his enquiry and collected all claim papers from the Complainants and assured the Complaints that their claim be settled soon after submission of his investigation report with the office of Opposite Party No. 1. Said investigator visited again and collected other remaining papers as per the directions of claim settling office. Complainants were verbally informed their claim No. 972 by the office of Opposite Party No. 1 is the month of December 2019. Thereafter, Complaints sent mail on 19^th of Feb 2020 to Branch Manager of office of Opposite Party No. 1 and again on 3^rd of March 2020 and on 20 of March 2020 requested for early settlement of their pending claim but the same was not taken into consideration and delaying the same on one pretext or other in the meantime Covid-19 pandemic imposed by the Government of India and matter was fell stand still till may 2020. When some relaxation was provided during Covid-19 Pandemic in Complainants again approached the office of Opposite Party No. 1 through mail on 27^th of May 2020 requested to answer the status of their pending claim through revert mail, but all goes in vain, hence the Present Complaint.All the efforts were goes in vain the Complainant sent a legal notice in the month of June 2020 and narrated facts and circumstances of their pending claim since 8 months with the opposite Parties and requested to intervene in the matter for early settlement. Counsel of the Complainants under their instructions sent a registered notice to the offices of Opposite Party No. 1 to 3 on 25^th of June 2020 and requested the opposite Parties to settle the claim. The enquiry from the office of opposite party No. 1 Complainants were verbally informed that they are seeking legal opinion on the point that deceased was holding Learner’s License at the time of accident. It is mandatory Under IRDA (Protections of Policy Holder’s interest) Regulations 2002 which caste the duties on insurance companies and their investigators to supply one copy of Survey/Investigation report to the insured and further directed to settle the claim either side within 30 days from the receipt of Survey/Investigation report. Opposite Parties NO. 1 to 3 is also ignoring the provision of Regulation 9 (2) of IRDA Regulation 2002 which is a controlling body of all insurers. Hon’ble Supreme Court and other Hon’ble National Commission have repeatedly been directing the insurance companies in their various judgments to settle the insurance claims at the most within 2 months from the date of receipt of Survey/Investigation report. Hence, these complaints have been filed alleging deficiency in service and unfair trade practice on the part of OPs.

2. After the service of notice upon the O.P, the O.P.s appeared before this Commission and filed the written version to complaint which was taken on record taking preliminary objections that the Complainant has filed a totally false and frivolous Complaint before this Hon’ble Commission; The Complainant has concealed material facts from the Hon’ble Commission and the answering Opposite Parties takes this opportunity to present the true facts before this Hon’ble Commission.

1. The vehicle No. HR 03 J 0785 was insured with the answering Opposite Parties vide two-wheeler package policy bearing No. 231303/31/2020/3439 for the time period from 11.05.2019 to 10.05.2020 in the name of Vijay Kumar Dhiman.
2. As per insurance policy, personal accident cover under section –III of Rs. 15,00,000/- was also given to registered owner cum driver after charging premium of Rs. 360/-.
3. Vijay Kumar Dhiman (deceased) was going on the aforesaid vehicle and met with an accident with a Renault Car bearing No. HR 99 ANBT 6637 and died on 18.10.2019.  The FIR No. 0233 dated 18.10.2019 was lodged at Police Station Sector-14, Panchkula in this regard.
4. The answering Opposite Parties received the intimation and deputed Sh. S.K Jan, investigator to find out the genuineness of claim and to verify the documents. As per the report of investigator, Vijay Kumar Dhiman  (deceased) was holding learner license (CH01/0021481/2019) and was entitled to drive MCWG(motorcycle with gear) only if he was accompanied by a pillion rider who holds a permanent driving license. He was not authorized to opinion the claim was not payable.
5. The answering Opposite Parties sent a pre-repudiation letter on 18.09.2020 to the wife of the deceased (Complainant) stating the position of the answering Opposite parties No. 1 to 3 and seeking comments from the Complainant within 7 days from the receipt of the letter.

             The Complainant did not respond to the pre-repudiation letter on 18.09.2020 and finally on 16.10.2020 the answering opposite parties repudiated the aforesaid claims as the vehicle was being driven in violation of the learner licence conditions as well as in violation of policy conditions. The deceased was driving the vehicle Bajaj XCD motorcycle bearing No. HR 03 J 0785 alone and his son/Complainant No. 2 was following the deceased on his motorcycle Splendor bearing No. CH 01 BX 9714. The deceased was not accompanied by any trained driver.

    On Merits, O.P denied the entire allegation made against them. It is denied that the learner license was issued for MCWG (motorcycle with gear) and not MCW as mentioned in the Complaint; It is admitted that the deceased was carrying a  license for MCW (motorcycle without gear) which expired on 2011; It is denied that the deceased applied afresh for issuance a driving license for issuance a driving license for MCW on 28.09.2019 instead he applied for MCWG (motorcycle with gear) which was valid for 28.09.2019 till 27.03.2020; It is submitted that no verbal information was given to the Complainant; it is further denied that any casual approach has been adopted towards the Complainant; it is admitted to the extent that the answering opposite parties is a leading insurance company; it is denied that the answering opposite parties have failed its discharging its legal duties; it is denied that the Complainant was not informed the status of the claim. Lastly prayed that the complaint may kindly be dismissed with costs.      

3. Replication has also been filed by the complainant thereby controverting the assertions of OP made in their written version and he reiterated all the averments contained in the complaint.
4. Parties led evidence in support of their contentions.
5. We have heard the Counsel for the parties and have gone through the entire record.
6. The main issue involved in the present complaint is that whether opposite party has repudiated the claim of the complainant, arbitrary and wrongly or not?

        The opposite parties have send a registered letter dated 18^th of September 2020 which is annexed as Annexure OP1/2 stating that at the time of accident, Late Shri Vijay Kumar, Dhiman, what is holding learner licence No. CH01/002 1481/2019, for MCWG for the period 18^th of September 2019, to 27^th of March 2020 and not a permanent licence. As per rule three of motor vehicle Act, a person shall not drive a motor vehicle in any public place unless he holds an affective driving licence and further from the record, it appears that the insurer was riding the motorcycle without ‘L’ plate and also a person having valid driving licence to drive, the same category of vehicle was also not sitting on the said motorcycle as pillion rider. The said motorcycle was being driven in violation of motor vehicle rules. The Opposite Parties asked the complainant to give her comments on the above within seven days from the receipt of that letter to enable them to proceed further. Thereafter, Opposite Parties vide their register letter dated 16^th of October 2020 repudiated the claim of the complainant on the above mentioned grounds mentioned in previous register letter dated 18^th  of September 2020.  The validity of the license is concerned one most consider whether the deceased was responsible for the accident. In the instant case also as per police investigation papers, accident took place due to the fault of the other vehicle i.e. Car driver and not of the deceased. Therefore, it can be said that the deceased was not responsible for the accident. In such circumstances, even though the deceased had no valid license the claim of the complainant cannot be repudiated on that ground. On this point the Complainant has heavily relied on the ratio laid down in the case of National Insurance Co. Ltd. V/s. Nitin Khandelwal, decided on 8^th May, 2008 by the Hon’ble Supreme Court, wherein the private vehicle was used as a taxi and the four passengers had hired the vehicle for going from Gwalior to Karoli and on the way said passengers snatched the vehicle from the driver. The said vehicle was used for personal use and it was used by the respondent as a taxi. In the said state of facts the Hon’ble Apex Court held that:

In the present case also the deceased was not responsible for the accident. Hence, the contention of opponent cannot be accepted. Therefore, though the deceased was not holding valid license the claim cannot be denied as he was not responsible for the accident. The authorities relied upon by O.P.s are not applicable on the facts of the present case, because the deceased was not responsible for the accident. His death caused due to rash and negligence driving by the driver of the car. Therefore, the said rulings relied upon by O.P.s are not applicable to the present case. The Insurance Company has not considered the documents furnished by the Complainant along with the claim form and rejected the Claim. Therefore, it can be said that the Insurance Company was guilty of deficiency in service.

7. The opposite parties in the written version stated that they send a Pre- repudiation letter dated 18.09.2020 to the wife of the deceased (complainant herein) stating the position of the opposite parties and seeking comments from the complainant within seven days from the receipt of the letter. The opposite parties further stated that Shri S.K Jain, investigator to find out the genuineness of the claim and to verify the documents ,who reported that Shri Vijay Kumar Dhiman(since diseased) was holding learner license and was entitled to drive motor cycle with gear only if he was a accompanied by a pillion rider who holds a permanent driving license, he was not authorised to drive the vehicle independently. Hence, in his opinion, the claim was not payable. The copy of report of the investigator dated 02.12.2019 was placed on record. The complainant did not respond to the Pre-reputation letter dated 18th of November 2020 and finally on 16th of October 2020 , Opposite Parties, repudiated the claim as the vehicle was being driven in violation of the learner licence conditions as well as in violation of policy conditions. The opposite parties further took a stand that as per the motor insurance certificate cum policy schedule attached as the Annexure C2 with the complaint “claim is not admissible if driving license is found fake or is not valid whether or not in the knowledge of the insured.”

Though opposite parties concluded that the insured has violated the terms and conditions of the Motor Vehicle Act yet they have not taken into consideration a very important fact mentioned in the FIR number 0233 dated 18.10.2019 in police station sector 14, Panchkula under section 279 IPC and 304-A IPC where in it is mentioned that a car hit the insured person, resulting into his death, without any fault in driving on the part of the deceased (insured). The FIR is duly placed on record as Annexure C7. So when there is no fault of driving the vehicle on the insured then he cannot be blamed to the extent that he will lose all benefit of his insured amount. In such like situations, where the complainant has violated the terms and conditions of the Motor Vehicle Act or the terms and conditions of the insurance policy, but at the same time lost his life due to rash and negligent driving of the third party there the insured should be entitled to compensated on the non-standard basis. Though the complainant has claimed amount of Rs.15 lakhs as per(CSI) towards PA cover for registered owner cum driver(deceased) under table 3 of the policy along with 18% per annum interest from the date of submission of claim papers by the complainant till its realisation along with compensation and litigation expenses yet the matter is decided on the non-standard basis and Opposite Parties are directed to pay 80% of insured amount i.e. Rs.12,00,000/-(Rs. Twelve lacs only) along with interest at the rate of 9%, per annum from the date of filing this complaint till the date of actual realisation of the amount to the complainant. The O.P.s are directed to comply with this order within 60 days from the date of receipt of the copy of this order.

8. Taking into consideration the above discussion & findings and settled position of law, the present complaint is partly allowed. No order as to costs.
9. The pending application(s) if any, stands disposed of accordingly.

        10.   Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced in open Commission.

Date:21.04.2023

Place:Chandigarh.

                                                                                                          Sd/-

(Amrinder Singh Sidhu)

                                                                        PRESIDENT

                                                                        Sd/-

                                                                        (B.M. SHARMA)

                                                                        MEMBER.

C.k