BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 311 of 2016
Date of Institution : 7.12.2016
Date of Decision : 31.8.2017.
- Pariksha widow of Prem Kumar son of Mani Ram, 2. Deepak, 3. Rahul minor sons of Shri Prem Kumar, through Smt. Pariksha mother and natural guardian of the minors, all residents of Gali No.4, Mela Ground, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
United India Insurance Company Limited, Division Office, situated at City Thana Road, Sirsa, through its Divisional Manager.
...…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SMT. RAJNI GOYAT ………………… MEMBER
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Sh. Amit Goyal, Advocate for the complainant.
Sh. Ravinder Goyal, Advocate for opposite party.
ORDER
The case of the complainant in brief is that Shri Prem Kumar, since deceased was husband of the complainant no.1 and father of complainants No.2 and 3. Said Prem Kumar, since deceased was owner of one Auto Rickshaw bearing registration No.HR-57A/2898, model September, 2015 and this vehicle was comprehensively insured with op company vide insurance No.1119003115P106536348 which was valid from 8.9.2015 to 7.9.2016 midnight. The op company charged Rs,4531/- including Rs.100/- for the risk of compulsory PA for owner/ driver. Said Prem Kumar, since deceased had appointed a driver for plying above said auto rickshaw on hire basis and said vehicle was also being used by Prem Kumar (as driver) and his family members for personal work. On 15.4.2016 complainants were going to Pallu (Rajasthan) for worship of ‘Sawamoney’ ((50 Kg. Parsad) from Sirsa in above said auto rickshaw which was being driven by Prem Kumar and when they reached near Midha Brick Kiln at about 5.30 hours, then a tractor trolley loaded with wheat came from opposite direction being driven by its driver at a high speed and in a rash and negligent manner and struck his tractor trolley into above said three wheeler. The impact was very huge and Prem Kumar received head injury and his right leg was amputated. The complainant Rahul son of Prem Kumar and Pariksha received injuries. Prem Kumar died on the spot due to the injuries sustained by him in this accident. The complainants Pariksha and Rahul were admitted in Astha Hospital, Sirsa and after treatment they were discharged. The complainant no.1 approached to the op company in black and white for payment of claim amount of Rs.2,00,000/- as risk of death of PA for owner and driver and submitted all the requisite documents i.e. LMV driving licence of Prem Kumar since deceased, registration certificate, insurance policy, FIR, post mortem report, ration card and adhar card etc. as per the requirement of the op company. The complainants have been continuously approaching the ops but all in vain and they were postponing the matter on one pretext or the other and ultimately they have refused to pay anything to the complainants without any rhyme or reason. The ops neither paid any amount to the complainants nor repudiated their claim intentionally and malafidely. That the act of the op comes under the ambit of deficiency in service and unfair trade practice due to which the complainants are suffering serious harassment, mental tension, and pain etc and they are legally entitled to get compensation on these counts. The complainants also served legal notice upon op on 12.9.2016 but to no effect. Hence, this complaint.
2. On notice, opposite party appeared and filed written statement taking preliminary objections regarding maintainability; locus standi; suppression of material facts and estoppal and that the insured vehicle is a commercial vehicle and was/is meant for commercial activities and that no consumer dispute is made out between the parties. On merits, it is submitted that on receipt of the claim lodged by the complainants in respect of death of Prem Kumar, the op minutely scrutinized the same and got investigated the same from investigator Shri Yogesh Kumar Garg, Advocate, Sirsa who investigated the said claim and reported that Prem Kumar was holding a driving licence for driving Motor cycle with gear, LMV-NT-Car only and thus, he was not authorized to drive the auto rickshaw. According to the terms and conditions of the policy covering the risk of personal accident of the insured Prem Kumar, it is an essential and contractual requirement of law that the person for whose death accident claim has been sought should have valid and effective driving licence to drive the insured vehicle. Since the deceased was not holding a valid and effective driving licence to drive the insured vehicle and there being violation of the terms and conditions of insurance policy on the part of the insured, the claim lodged by complainant no.1 has been repudiated by op vide letter dated 28.9.2016 in a legal and lawful manner. Remaining contents of the complaint have also been denied.
3. The complainant no.1 produced her affidavit Ex.PW1/A, affidavit of one Om Parkash son of Sh. Mahavir, resident of village Jamal, Tehsil and District Sirsa Ex.PW2/A and copies of documents Ex.C1 to Ex.C14. On the other hand, op produced affidavit Ex.RW1/A, copy of repudiation letter dated 28.9.2016 Ex.R1 and copy of verification of driving licence Ex.R2.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. Learned counsel for the complainant has contended that it is proved on record that the vehicle in question was insured with the opposite party and due intimation was given to the op regarding the accident and death of deceased owner Prem Kumar. It has also been contended that documents i.e. copies of registration certificate, driving licence, FIR and post mortem report and other documents were duly supplied to the op, but, however, the op has illegally and arbitrarily repudiated the claim of the complainants vide repudiation letter Ex.R1. During the course of arguments, learned counsel for the complainant has relied upon the judgment of the Hon’ble Supreme Court reported as 2017 (7) Scale 731 titled as Mukund Dewangan Versus Oriental Insurance Company Limited, in which it has been observed by the Hon’ble Supreme Court that “the light motor vehicle as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2 (21) read with Section 2 (15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of amendment act No.54 of 1994 i.e. to say no separate endorsement on the licence is required to drive a transport vehicle of the light vehicle class, the unladen weight of which does not exceed 7500 Kgs.” He has further relied upon judgment of the Hon’ble Himachal Pradesh High Court reported as I (2017) ACC 107 titled as Inder Kaur & Ors. Vs. Shanti Devi & Ors. On the other hand learned counsel for the opposite party has relied upon judgments reported as 2014 ACJ 2873 titled as Kulwant Singh and others vs. OIC (SC), 2017 ACJ 576 titled as Cholamandalam MS General Insurance Co. Ltd. vs. Pushap Kumar and others (P&H) and I (2017) CPJ 277, titled as OIC Vs. Prem Lata Purohit (NC).
6. We have considered the rival contentions of the parties and have also gone through the judgments relied upon by learned counsel for the parties. The perusal of record reveals that it is undisputed fact between the parties that deceased Prem Kumar was a registered owner of vehicle bearing registration No. HR-57-A/2898. This vehicle was insured with opposite party covered with comprehensive insurance policy No.1119003115P106536348 and the personal accident of the owner/ driver of vehicle was also covered and for which a separate premium amount of Rs.100/- was paid in addition to premium of Rs.4431/- as insurance of the vehicle. It is also proved fact on record that on 15.4.2016 complainants alongwith deceased Prem Kumar were going to Pallu (Rajasthan) for worship of Sawamani from Sirsa in the said auto rickshaw which was being driven by the said deceased Prem Kumar and when they reached near Midha brick kiln at about 5.30 hours, then a tractor trolley loaded with wheat came from the opposite side at a high speed and in a rash and negligent manner, as a result of which tractor trolley struck into the said three wheeler as a result of which the driver/ owner Prem Kumar suffered multiple injuries on his person and he succumbed to the injuries on the spot. It is also proved fact that present complainants are legal heirs of deceased Prem Kumar. As per the terms and conditions of the insurance contract, the personal accident insurance of the owner/ driver was to the extent of Rs.2,00,000/- and claim was lodged with the opposite party. As per the version of the complainants, the requisite documents alongwith copies of registration certificate, driving licence etc. were supplied to the op for settlement of the claim. It is also not in dispute between the parties that said Prem Kumar died in road side accident which is evident from the copy of FIR as well as copy of post mortem report.
7. The perusal of Ex.R1 repudiation letter reveals that the claim of the complainant was repudiated on the ground that the vehicle which was being driven by Prem Kumar was a commercial passenger carrying vehicle and was insured and registered as such, but deceased Prem Kumar whose personal accident coverage was to the extent of Rs.2 lac, was not having valid, effective driving licence for the category of vehicle registered, insured and driven by him on the date of accident, due to which he died and as he died while driving the same and DL No.DL/143745/SSA (New No.HR 2420090048367) dated 25.3.2009 got issued by Prem Kumar merely authorized him to drive motor cycle with gear/LMV-NT-car only. As there is violation of term and conditions of the policy, Motor vehicle act, Rules etc., as mechanism for driving the transport vehicle specifically three wheeler passenger carrying vehicle is entirely different then the motor cycle & LMV-NT-car, hence claim lodged is hereby repudiated. It is apparently clear from this repudiation letter Ex.R1 that deceased Prem Kumar was holding a driving licence with validity to drive motor cycle with gear/LMV-NT and car only. Section 2 (21) of the Motor Vehicle Act defines the light motor vehicle and definition is as under:-
(21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms.”
8. The perusal of copy of registration certificate of the vehicle Ex.C2 reveals that the unladen weight of the three wheeler in question was 450 Kgs. meaning thereby it is fully covered under the definition of light motor vehicle as provided under Section 2 (21) of the Motor Vehicle Act. Further more, we find force with the law laid down by the Hon’ble Supreme Court in case titled as Mukund Dewangan Vs. OIC (supra). So, it appears from the evidence on record as well as from the law laid down by the Hon’ble Supreme Court that the opposite party has arbitrarily and wrongly repudiated the claim of the complainants and the opposite party is liable to pay the claim of the complainants.
9. In view of our above discussion, we allow the present complaint and direct the opposite party to settle and pay the claim amount of the complainant to the tune of Rs.2,00,000/- to the complainants within a period of 45 days from the date of receipt of copy of this order and further direct to pay a sum of Rs.15,000/- as composite compensation and cost of litigation to the complainants, failing which the opposite party will be liable to pay interest @9% per annum from the date of filing of present complaint till realization. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:31.8.2017. Member Member District Consumer Disputes
Redressal Forum, Sirsa.
