Tripura

StateCommission

A/13/2016

Smt. Mousumi Chakraborty - Complainant(s)

Versus

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

Mr. Saikat Saha, Mr. Sagar Banik, Mr, Kushal Deb

29 Jun 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No.A/13/2016

 

 

 

1. Smt. Mousumi Chakraborty,

Wife of Late Goutam Chakraborty

 

2. Srestha Chakraborty

Daughter of Late Goutam Chakraborty

 

3. Pathikrit Chakraborty

Son of Goutam Chakraborty

 

All are the resident of Dhaleswar, Agartala, 799007,

Dist. West Tripura, P.S. East Agartala.

 

                                                  ….    ….    ….    ….    Appellants.

 

 

 

                   Vs

 

 

1. The Oriental Insurance Company Limited,

42/2, Central Road, Agartala-799001,

Dist. West Tripura, P.S. East Agartala,

Represented by-

Its Divisional Manager.

 

                                                            ….    ….    ….    ….    Respondent.

 

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

                                                                                                                                  

 

For the Appellants             :         Mr. Saikat Saha, Adv. & Mr. Sagar Banik, Adv.

For the Respondent           :         Mr. Basudev Chakraborty, Adv.   

Date of Hearing                 :         16.06.2016. 

Date of delivery of Judgment:       29.06.2016.  

J U D G M E N T

 

S. Baidya, J,

This appeal filed on 23.04.2016 by the appellants Smt. Mousumi Chakraborty and two others under section 15 of the Consumer Protection Act, 1986 is directed against the Judgment and Order dated 02.04.2016 passed by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), West Tripura, Agartala, in case No.CC-77/2014 whereby the Ld. District Forum dismissed the complaint filed under section 12 of the C.P. Act, 1986.

2. The case of the appellant, as narrated in the memo of appeal, in brief, is that the present appellants being the complainants lodged a complaint under section 12 of the Consumer Protection Act, 1986 against the present respondent the Oriental Insurance Company Ltd. (in short Insurance Company) for deficiency in service and unfair trade practice alleging that on 17.01.2010 Goutam Chakraborty, husband of appellant no.1 and father of appellant nos.2 & 3 was proceeding towards his house at Dhaleswar, Agartala by boarding the vehicle bearing No.TR-01-K-1775 (TATA ACE) from Nagicherra and on the way met an accident due to rash and negligent driving of the vehicle by its driver namely Kabir Hossain and as a result, Goutam Chakraborty sustained injuries and was shifted to G.B.P. Hospital where he was admitted as indoor patient, but after few hours he succumbed to his injuries in the said hospital and over that accident Srinagar P.S. Case No.1 of 2010 under section 279/304A of the I.P.C. was registered.    
3. It is also alleged that the appellants filed an application before the Motor Accidents Claims Tribunal, West Tripura, Agartala under section 166 of the Motor Vehicles Act, 1988 and a case being Title Suit (MAC) 446 of 2010 was registered, but the Ld. Tribunal rejected the claim application vide order dated 31.08.2013.
4. It is also alleged that thereafter on 09.04.2014, the Advocate of the appellants sent a notice demanding to provide P.A. Coverage as per insurance policy within 15 days from the date of receipt of the said notice. It is also alleged that the respondent in reply asked for some documents which were sent on 18.06.2014, but thereafter also the respondent neither replied nor fulfilled the demand of the appellants and finding no alternative, the present appellants lodged a complaint before the Ld. District Forum.
5. It is also alleged that the respondent Insurance Company contested the claim of the appellants-complainants by filing a written objection. It further appears that the Ld. District Forum considering the evidences and after hearing the parties dismissed the complaint vide judgment dated 02.04.2016. Being aggrieved by and dissatisfied with the impugned judgment the complainants being the appellants have preferred the instant appeal challenging the legality of the said judgment on the grounds that the Ld. Forum committed serious illegality in law and in fact, that the Ld. Forum failed to appreciate that if Insurance Company without verifying the driving license of owner charged premium for Personal Accident Coverage from the owner, the Insurance Company is under an obligation to provide the P.A. Coverage if the owner dies due to a motor accident, that the Ld. Forum failed to appreciate that without verifying the driving license of the owner the Insurance Company cannot charge premium of P.A. Coverage from the owner as per Personal Accident Coverage Rules, that the Ld. Forum failed to consider that if the Insurance Company without verifying the driving license of the owner charged premium for P.A. Coverage, it will fall under the definition of Unfair Trade Practice as provided under the C.P. Act and as such, the impugned judgment passed by the Ld. District Forum is not sustainable and is liable to the set aside and hence, the instant appeal has been preferred.

 

Points for Consideration

6. The points for consideration are (i) whether the Ld. District Forum was proper, legal and justified in dismissing the complaint by the impugned judgment and (ii) whether the judgment under challenge in this appeal should be set aside as prayed for.

Decision with Reasons     

7. Both the points are taken up together for the sake of convenience and brevity.
8. Going through the pleadings of the parties, evidences, the impugned judgment and the memo of appeal, we find that there are certain admitted facts. Admittedly, deceased Goutam Chakraborty got his vehicle bearing No.TR-01-K-1775 (TATA ACE) insured with the Oriental Insurance Company Ltd. vide policy no.322700/2009/11560 w.e.f. 27.02.2009 to 26.02.2010 with P.A. Coverage to owner-cum-driver for Rs.2.00 lakhs. It is also admitted fact that the said insured on 17.01.2010 was proceeding towards his house at Dhaleswar, Agartala by boarding the said vehicle from Nagicherra driven by its driver Kabir Hossain. It is also admitted fact that on the said date the said vehicle met with an accident at Nagicherra in which the insured sustained severe injuries and he was brought to G.B.P. Hospital where after few hours of his admission he succumbed to his injuries. It is also admitted fact that over the said motor vehicle accident Srinagar P.S. Case No.01 of 2010 dated 18.01.2010 under section 279/304A of the IPC was registered. It is also admitted fact that police submitted charge-sheet in the said Srinagar P.S. Case against the driver Kabir Hossain on the allegation of driving the vehicle rashly and negligently. It is also admitted fact that the present appellant no.1-complainant no.1 is the widow of deceased insured Goutam Chakraborty and rest two others are the children of said insured. It is also admitted fact that the present appellants filed the claim case under section 166 of M.V. Act, 1988 before the Ld. Motor Accidents Claims Tribunal, West Tripura, Agartala being Title Suit (MAC) 246 of 2010 against the present respondent Insurance Company. It is also admitted fact that the said claim case was dismissed by the Ld. MAC Tribunal on the ground of non-maintainability of the claim application.
9. The Ld. Counsel for the appellants submitted referring to the insurance certificate that the Insurance Company realized a premium of Rs.100/- for granting facility under P.A. Coverage. He also submitted that when the Insurance Company realized that premium under P.A. Coverage, it goes to establish that the deceased insured Goutam Chakraborty being the registered owner of the said vehicle, the present appellants being legal heirs and representatives of the deceased insured is legally entitled to get Rs.2.00 lakhs under P.A. Coverage. He also submitted that now, the Insurance Company after realizing the premium of Rs.100/- for granting P.A. Coverage cannot take any plea that the deceased owner Goutam Chakraborty had no valid driving license at the relevant time. He also submitted that the Ld. District Forum failed to appreciate this circumstance and erroneously dismissed the complaint holding that having no valid driving license of the deceased insured at the relevant time, the present appellants-complainants are not legally entitled to get benefit admissible under P.A. Coverage. The Ld. Counsel for the appellants referring to para-26 of a decision of Hon’ble Madras High Court pronounced on 15.03.2013 in C.M.A. No.3006 of 2012 and M.P. No.1 of 2012 between National Insurance Company Ltd. (appellant) Vs. Krishnan and another (respondents) submitted that if the policy is comprehensive/package policy and when additional premium under P.A. Coverage has been paid to cover any loss, then the Insurance Company is liable to pay compensation, but unfortunately the Ld. District Forum dismissed the complaint by the impugned judgment which being unsustainable in law, is liable to be set aside and the appeal should be allowed.
10. On the other hand, the Ld. Counsel for the respondent Insurance Company submitted referring to GR36 that Compulsory Personal Accident Cover for owner-driver shall be applicable under both liabilities only and package policies and the owner of the insured vehicle holding an ‘effective’ driving license is termed as owner-driver for the purpose of section GR36. He also submitted that for getting benefits under P.A. Coverage, the insured owner of the vehicle must have an effective driving license at the relevant time. He also submitted that compulsory P.A. Coverage cannot be granted where the owner-driver does not hold an effective driving license. He also submitted that the appellant no.1 Mousumi Chakraborty as PW-1 stated in her cross-examination before the Ld. District Forum that she has not produced any driving license of Goutam Chakraborty. The Ld. Counsel for the respondent also submitted that for getting the P.A. Coverage the insured owner of the car must have an effective driving license. He also submitted that the facility under P.A. Coverage is only granted to an owner-driver. He also submitted that the complainants-appellants produced no driving license in the name of Goutam Chakraborty showing that at the relevant time Goutam Chakraborty had an effective driving license to drive his vehicle which was insured with the respondent Insurance Company. He also submitted that the complainants miserably failed in this regard and as such, the Ld. District Forum by the impugned judgment rightly held that the complainants are not legally entitled to get any benefit under P.A. Coverage granted to the deceased Goutam Chakraborty on his death due to the said motor vehicle accident.
11. Ld. Counsel for the respondent further submitted that the insurance policy was granted containing owner-driver’s clause under P.A. Coverage solely in good faith on the basis of the declaration made in the proposal submitted for insurance policy. He also submitted relying on the said declaration of the proposer made in the proposal form that the Insurance Company granted the package policy containing benefit under P.A. Coverage for owner-driver and realized an extra premium amount of Rs.100/- on account of P.A. Coverage. He also submitted that the Ld. District Forum nowhere observed in the impugned judgment that the Insurance Company is guilty of unfair trade practice. He further submitted that having no effective driving license in the name of Goutam Chakraborty, the deceased insured owner, the benefit under P.A. Coverage is not admissible to the complainants as legal heirs and representatives of the deceased insured as per terms and conditions of the insurance policy. He also submitted that the Ld. District Forum considering this aspect of the case rightly dismissed the complaint by the impugned judgment which, being proper, legal and justified, should be affirmed and having no merit the appeal should be dismissed.
12. Admittedly, the commercial vehicle of registered owner Goutam Chakraborty was insured with the respondent Insurance Company on a package policy. A package policy gives the insurance coverage to third party and also P.A. coverage to owner-cum-driver if any premium is paid for that. The P.A. coverage was extended up to Rs.2.00 lakhs for which a premium of Rs.100/- was received by the Insurance Company. The point in issue in this appeal is as to whether the appellants-complainants as legal heirs and representatives of deceased insured Goutam Chakraborty are legally entitled to get the benefit of PA coverage as per terms and conditions of the insurance certificate/policy.
13. It is an established fact that at the relevant time the vehicle was driven by its driver Kabir Hossain who had a valid driving license. It has been well established and also as admitted by the Ld. Counsel for the appellants at the time of hearing this appeal that the deceased insured Goutam Chakraborty had no valid driving license at the relevant time. Undoubtedly, under the insurance policy P.A. Coverage was given to owner-driver. Now, the question is who is the owner-driver or owner-cum-driver under the insurance policy. The owner-driver is a person who is the registered owner of the vehicle and also has an effective driving license to drive his vehicle. The driver’s clause of the concerned insurance certificate reads follows:

“Any person including insured, provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that a person holding an effective learner’s license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules, 1989.”

14. From the above, it is palpable that for getting the benefit under P.A. Coverage, the registered owner of the vehicle insured must have an effective driving license at the relevant time. But it does not necessarily mean that the insured registered owner of the vehicle must be on the wheels. If the insured owner travels in the vehicle as an occupant and has a valid driving license, such benefit under Personal Accident (P.A.) coverage is admissible to the legal heirs and representatives of the deceased insured owner-driver, in view of the principle of law enunciated by the Hon’ble Supreme Court of India in National Insurance Company Ltd. Vs Balakrishnan reported in 2012 (2) TNMAC 637 (SC) as quoted in the judgment of the Hon’ble Madras High Court (supra).
15. The deceased insured Goutam Chakraborty had no valid driving license at the relevant time. So, as per terms and conditions of the insurance certificate, the benefit under P.A. Coverage is not legally admissible to the appellants-complainants as legal heirs and representatives of the deceased insured Goutam Chakraborty. A matter which is not legally admissible as per terms and conditions of the insurance certificate, cannot be made admissible by the acts of the parties. In the instant case, admittedly Rs.100/- was received by the Insurance Company as a premium for P.A. coverage for an amount of Rs.2.00 lakhs. According to the Insurance Company, they relying on the declaration of insured Goutam Chakraborty made in the proposal form granted P.A. Coverage to the insured registered owner on good faith and they did not verify or omitted to verify for ascertaining as to whether the registered owner Goutam Chakraborty had any valid driving license at the time of granting such P.A. Coverage, but that omission does not invalidate the terms and conditions of the insurance policy where it is a legal requirement that the insured registered owner of the vehicle must have an effective driving license at the material time.
16. To see as to what was the declaration of the insured Goutam Chakraborty in the proposal form, its production from the side of the Insurance Company before the Ld. Forum was highly essential. Not only so, the Insurance Company should produce the said proposal form even at the appellate stage, but the Insurance Company failed to produce the same. Usually, the non-production of the document required gives rise to draw an adverse presumption against the party for such non-production. In the instant case, such adverse presumption cannot be drawn, simply because the existence of effective driving license of the insured registered owner of the vehicle was a legal requirement for getting P.A. coverage as owner-driver.  When the owner knew that he had no valid driving license for getting P.A. Coverage as owner-driver, mere payment of premium of Rs.100/- for P.A. Coverage claiming as owner-driver did not entitle him to get the benefit of P.A. Coverage and as such, the appellants-complainants as legal heirs and representatives of deceased registered owner Goutam Chakraborty also are not legally entitled to get such benefit under P.A. Coverage as per terms and conditions of the insurance policy/certificate.
17. The receiving of Rs.100/- as premium for P.A. Coverage by the Insurance Company cannot be treated within the definition of Unfair Trade Practice, simply because whether the registered owner Goutam Chakraborty had actually any valid driving license at the time of securing the insurance certificate, that was within his special knowledge, as the Insurance Company acted in good faith relying on the declaration of the proposer Goutam Chakraborty and granted P.A. Coverage without verifying whether said Goutam Chakraborty had any valid driving license.
18. We have gone through the findings of the Ld. District Forum and found that the Ld. District Forum nicely discussed the point in issue and rightly arrived at the conclusion. We find nothing to hold a different view and as such, we also find nothing to interfere with the impugned judgment and therefore, the impugned judgment should be affirmed and the appeal is also liable to be dismissed.
19. In the result, the appeal fails. The impugned judgment dated 02.04.2016 passed by the Ld. District Forum, West Tripura, Agartala in Case No.CC-77/2014 is hereby affirmed. There is no order as to costs.     

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura