Haryana

Karnal

CC/237/2021

Rajvinder Kaur - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

Kuldeep Singh Kalsoura

11 Jul 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 237 of 2021

                                                        Date of instt.28.04.2021

                                                        Date of Decision:11.07.2023

 

Rajvinder Kaur @ Ravinder Kaur wife of Shri Tirlochan Singh son of Gurmukh Singh, resident of house no.359, ward no.14 Geeta Colony, Assandh District Karnal, age 31 years.

 

                                               …….Complainant.

                                              Versus

 

1.     The Oriental Insurance Company Ltd. through its Manager, LIC Building, 2^nd floor, Jagadhari Road: TP HUB: Ambala.

 

2.     M/s Balhara Auto Company, Karnal Road, opposite Anaj Mandi, Assandh District Karnal through its prop/partner.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

 

Before   Sh. Jaswant Singh……President.

              Sh. Vineet Kaushik……Member 

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Kuldeep Singh, counsel for the complainant.

                    Shri Ramesh Chaudhary, counsel for the OP no.1.

                    Shri Dharampal Raman, counsel for the OP no.2.

 

                    (Jaswant Singh President)

ORDER:   

          

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that father-in-law of the complainant namely Shri Gurmukh Singh has purchased motorcycle make Bajaj Platina from OP no.2. The said motorcycle got insured with the OP no.1, vide policy no.261404/31/2021/2133. In the said policy, personal accident insurance of owner-driver was covered for a sum assured of Rs.15 lakhs. The complainant is the nominee in the said policy. The said vehicle met with an accident and a DD no.15 dated 07.10.2020 under section 174 Cr.P.C has been registered in Police Station Titram District Kaithal. In the said accident Gurmukh Singh has been died. At the time of accident, Gurmukh Singh was having valid and effective driving licence for plying the vehicle. After the death of her father-in-law, complainant informed the OP no.1 regarding the said accident and submitted all the required documents with the OP no.1 for settlement of the claim. Complainant visited the office of OP no.1 several times and requested to settle the claim but OP no.1 did not pay any heed to her requested and lastly repudiated the claim, vide letter dated 22.03.2021 on the false and frivolous ground. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OP no.1 appeared and filed its written version, raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that as per DDR lodged with Police Station Titram District Kaithal, there is no mention of chasis and engine number of motorcycle which was allegedly being driven by the deceased (allegedly Owner cum driver of the insured vehicle) at the time of alleged accident, hence in the absence of registration number, chasis number and engine number, it is not established that the motorcycle in question was involved in the said accident, therefore, personal accident claim is not payable. As per the DDR and statement of complainant, the motorcycle in question was struck against the Kiker tree and was got damaged, but No Own Damage Claim has been reported with the OP till date, which indicates that the motorcycle in question is involved in the accident. It is further pleaded that the motorcycle purchased by deceased Gurmukh Singh was delivered on 03.10.2020 by OP no.2 without issuing temporary number or A/F or permanent registration number. OP no.2 had applied for temporary number/RC on 08.10.2020, whereas Gurmukh Singh died on 07.10.2020. No temporary or permanent registration number can be given by the Registration Authority without passing of the vehicle and in the name of dead person. It is further pleaded that as per GR 36-A of India Motor Tariff, there are three essential conditions for admissibility of PA claim, which are as under:-

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 and effective driving license.

In the present complaint, condition no.5-A referred above is not fulfilled as the deceased was not registered owner and the vehicle was not having any temporary/permanent registration number or A/F. Thus, the claim complainant is not maintainable and the OP has rightly repudiated the claim of complainant, vide letter dated 22.03.2021. There is no deficiency in service and unfair trade practice on the part of the OP no.1. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written version raising preliminary objections with regard to maintainability; cause of action; locus standi; jurisdiction and concealment of true and material facts. On merits, it is pleaded that complainant and her father in law Gurmukh Singh failed to adhere the mandatory provisions of law which were explained to deceased Gurmukh Singh and claimant Rajvinder Kaur at the time of delivery of motorcycle because both compelling the finance manager Mr. Rajesh to give delivery of motorcycle without the showroom tag or temporary registration number because of short payment and default in online system and even in case there will be any eventuality or mis-happening then both Gurmukh Singh and Rajvinder Kaur will be liable and responsible for each and every act and conduct because when on 03.10.2020, motorcycle in question was purchased by Gurmukh Singh at that time Gurmukh Singh was not in possession of full payment which was Rs.63603/-as value of the motorcycle including GST etc. and excluding of insurance premium money and accessories, which were Rs.73000/- including tax etc. and out of which Gurmukh Singh was in possession of Rs.53000/- and Rs.20000/- remained balance towards Gurmukh Singh, however, motorcycle was insured without temporary or permanent registration number by OP no.1 whereby chasis and engine number of motorcycle were registered by insurance company but showroom tag or temporary number was not allotted to motorcycle purchased by Gurmukh Singh because of payment short and more so, online system was not working on 03.10.2020, for getting temporary registration number from Registering Authority.  However, Gurmukh Singh requested that he will pay the balance amount tomorrow and he will not use the motorcycle in any way or manner. As Gurmukh Singh and Rajvinder Kaur both were informed about non-issuing of temporary registration number and in case they used the motorcycle in question and some mishappening may took place, then in that eventuality, OP no.2 will not be liable and responsible for any consequences.  There is no deficiency in service and unfair trade practice on the part of the OP no.2. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, affidavit of Harjit Kaur wife of Shri Gurmukh Singh Ex.CW2/A, copy of insurance policy Ex.C1, copy of repudiation letter dated 22.03.2021 Ex.C2, copy of temporary RC Ex.C3, copy of motorcycle delivery challan Ex.C4, copy of driving licence of Gurmukh Singh Ex.C5, copy of death certificate of Gurmukh Singh Ex.C6, copy of postmortem report of Gurmukh Singh Ex.C7, copy of DDR Ex.C8, copy of superdari order Ex.C9, copy of aadhar card of Gurmukh Singh Ex.C10, copy of aadhar card of Rajvinder Kaur Ex.C11, copy of aadhar card of Harjit Kaur Ex.C12 and closed the evidence on 03.10.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OP no.1 has tendered into evidence affidavit of Ramesh Kumar Ex.OP1/A, copy of DDR Ex.OP1, copy of insurance policy Ex.OP2, copy of photographs of motorcycle Ex.OP3 and Ex.OP4, copy of surveyor/investigator report Ex.OP5, copy of invoice Ex.OP6 and closed the evidence on 05.04.2023 by suffering separate statement.

7.             Learned counsel for the OP no.2 has tendered into evidence affidavit of Rajesh, Manager of OP no.2 Ex.OP2/A, copy of delivery challan Ex.OP2/B, copy of temporary certificate of registration Ex.OP2/C, copy of tax invoice Ex.OP2/D, copy of insurance policy Ex.OP2/E, copy of detail of online payment Ex.OP2/F and closed the evidence on 02.05.2023 by suffering separate statement.

8.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that Gurmukh Singh (since deceased) had purchased a motorcycle from OP no.2. The said motorcycle was  got insured with the OP no.1. In the said policy, personal accident insurance of owner-driver was covered for a sum assured of Rs.15 lakhs. The complainant is the nominee in the said policy. The said vehicle met with an accident and driver-cum-owner namely Gurmukh Singh had been expired in the said accident.

After the death of insured, complainant informed the OP no.1 regarding the said accident and submitted all the required documents with the OP no.1 for settlement of the claim but OP no.1 did not settle the claim after repeated requests and lastly repudiated the claim, vide letter dated 22.03.2021 on the false and frivolous ground and lastly prayed for allowing the complaint.

10.           Per contra, learned counsel for the OP no.1, while reiterating the contents of written version, has vehemently argued that as per DDR lodged there is no mention of chasis and engine number of the motorcycle in question at the time of accident. In the absence of registration number, chasis number and engine number, it is not established that the motorcycle in question was involved in the said accident, therefore, personal accident claim is not payable. Further, no OD claim has been reported with the OP till date. At the time of alleged accident, deceased was not registered owner and the vehicle was not having any temporary/permanent registration number. Thus, the claim complainant was not maintainable and the OP has rightly repudiated the claim of complainant, vide letter dated 22.03.2021 and lastly prayed for dismissal of the complaint.

11.           Learned counsel for the OP no.2, while reiterating the contents of written version, has vehemently argued that on 03.10.2020, motorcycle in question was purchased by Gurmukh Singh. The motorcycle was insured without temporary or permanent registration number by OP no.1 whereby chasis and engine number of motorcycle were registered by insurance company. On that day, the online system was not working, thus, the temporary number was not allotted. Hence, the OP no.2 is not liable and responsible for any consequences and prayed for dismissal of the complaint qua OP no.2.

12.           We have duly considered the rival contentions of the parties.

13.           Admittedly, on 03.10.2020 Gurmukh Singh (since deceased) purchased a motorcycle from the OP no.2. It is also admitted that said motorcycle was insured by the OP no.1. It is also admitted that personal accident of Rs.15,00,000/- was also covered in the said policy and OP no.1 has charged extra premium amount in this regard. It is also admitted that complainant is the nominee in the said policy. It is also admitted that Gurmukh Singh was died during the subsistence of the insurance policy.

 14.          The claim of the complainant has been repudiated by the OP no.1, vide repudiation letter Ex.C2 dated 22.03.2021 on the ground that at the time of accident, deceased was not registered owner and vehicle was not having any temporary/permanent registration number.

15.           As per version of the OP no.1, in the absence of registration number, chasis number and engine number, it is not established that the motorcycle in question was involved in the said accident. The onus to prove her case was relied upon the complainant. To prove her case, complainant has placed on file recovery memo of the motorcycle in question Ex.C9 dated 07.10.2020, vide which police of Police Station, Titram has taken into possession of the motorcycle of the deceased and in the said recovery memo engine number and chasis number is the same as mentioned in the insurance cover note Ex.C1. Hence, it has been proved on the record that Gurmukh Singh owner-cum-driver expired while driving the said motorcycle. Hence, plea taken by the OP no.1 has no force.

16.           Admittedly, at the time of said accident, the vehicle in question was not registered in the name of deceased and deceased has violated the terms and conditions of Motor Vehicle Act. For the sake of gravity, if it is presumed that deceased had violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we can rely upon the case laws cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar,  and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

17.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

18.           Keeping in view the ratio of the law laid down in the abovesaid authorities and the facts and circumstances of the present complaint, we are of the considered view that the act of the OPs amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant in toto. Hence, complainant is entitled to get 75% only of the admissible claim on non-standard basis.

19.           Admittedly, OP no.2 had failed to allot the showroom tag or temporary number and delivered the motorcycle. Thus, OP no.2 has also violated the mandatory provisions of law. Thus, the OP no.2 is also liable for his wrong act.

20.           As per insurance policy Ex.C1/Ex.OP2, the sum insured under personal accident is Rs.15.00 lakh.  Hence the complainant is entitled for Rs.11,25,000/- i.e. 75% of the insured amount alongwith interest, compensation and litigation expenses etc.  

21.           In view of the above discussion, we partly allow the present complaint and direct the OP no.1 to pay Rs.11,25,000/- to the complainant alongwith interest @ 9% per annum from the date of filing of the complaint till its realization. We further direct the OP no.2 to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by her and Rs.11,000/-for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 11.07.2023                                                                    

                                                                      President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

                (Vineet Kaushik)                (Dr. Rekha Chaudhary)

                        Member                             Member