DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

Civil Station, Palakkad 678001, Kerala

Dated this the 31^st day of December, 2009

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

C.C.No.17/2009

1. Biji,

W/o.Late Biju.A,

2. Basil,

S/o.Late Biju.A,

3. Avarachan Isahak,

4. Valsa Avarachan,

W/o.Avarachan Isahak,

Karikkonayil, Kaithachir, Kairady,

Chittur, Palakkad. - Complainants

(By Adv.C.Madhavankutty and Joy Kanhirathinchalil)

Vs

United India Insurance Company Ltd.,

Branch Office,

T.G.Towers, 2^nd Floor.

Near Bus Stand,

Nemmara, Palakkad.

(By Adv.A.Rajivijay Sankar)

O R D E R

By Smt.Preetha.G.Nair, Member

The deceased Biju.A was the registered owner of the motor cycle Reg. No.KL49 2155 and the same was insured with the opposite party as per Personal Accident Insurance claim policy No.101204/31/06/01/00004664 valid from 30/10/06 to 29/10/07. The first complainant is the wife, second complainant is son, third complainant is father and fourth complainant is mother of Biju, who died with a motor vehicle accident. The complainants are the legal representatives and dependents of Biju.A. On 3/6/07, the said motor cycle was driven by Shijoy with Biju.A as pillion rider the vehicle met with an accident. Biju.A sustained serious injuries and succumbed to death. At the time of accident the motor cycle was driven by Shijoy, who is having valid driving license at that point of time and the same is admitted by the opposite party. 1^st Complainant applied for claim under personal accident coverage. But the claim was rejected on the ground that the deceased was not having valid

driving license to drive the motor cycle. The police in this case have thoroughly investigated the matter and has concluded that the accident has happened due to rash and negligent driving of motor cycle Reg. No.KL 49 2155 by Shijoy and that Biju.A was only a pillion rider. As long as the accident has not happened due to negligence of Biju.A, the opposite party has no right to repudiate claim. Hence the act of opposite party repudiating the claim amounts to gross deficiency of service and unfair trade practice. Complainants pray an order directing the opposite party to pay an amount of Rs.1,00,000/- with interest at the rate of 12% per annum and Rs.20,000/- as compensation and cost of this proceedings.

Opposite party filed version stating the following contentions. Opposite party admitted that the vehicle of the deceased was insured with personal accident cover to an extent of Rs.1 lakh. The personal accident cover for owner cum driver is subject to the following conditions as per Section III of the policy.

a. The owner cum driver should be the registered owner of the vehicle,

b. The owner cum driver is the insurer of the vehicle

c. The owner cum driver hold a effective driving license in accordance with the provisions of Rule 3 of the Central Motor Vehicle Rules, 1989.

On receipt of claim intimation the company issued a notice requesting the claimant to produce the original and copy of the driving license of the deceased on 29/10/07. But she did not produce those records. Hence the claim was repudiated on 26/02/08 and the intimation served to the party on 07/03/08. To get personal accident claim the insured should have valid driving license and he should be the owner and rider of the vehicle. The complainant has misconstrued the provision of law in order to get compensation. Mere traveling as pillion is not a ground to get personal accident cover. He should be the rider and owner. There was no gross negligence on the part of opposite party. The repudiation is as per the provisions of law. Hence the complaint is to be dismissed with costs to the opposite party.

1^st complainant filed chief affidavit and documents. Exts.A1 to A7 marked on the side of complainant. Opposite party also filed affidavit and documents. Ext.B1 to B5 marked on the side of opposite party. Opposite party was cross examined as DW1.

Issues to be considered are;

1. Whether there is any deficiency in service on the part of opposite party.

2. If so what is the relief and cost?

Issues 1 & 2:

We have heard the learned counsels for the parties and perused the record. In this case there is no dispute on the point that the deceased had got the motor cycle insured with the opposite party insurance company for the period 30/10/06 to 29/10/07 and had taken a personal accident policy covering the risk in the manner that in case the insured dies in an accident, the opposite party would pay a sum of Rs.1 lakh. There is also no dispute on the point that the claim of the complainant was repudiated by the opposite party on the ground mentioned in the repudiation letter. As per their policy condition stated in Ext.B4, in order to get personal accident coverage for owner cum driver, owner-driver should possess effective license to drive the vehicle. Perusing the conditions stipulated in Ext.B4, we are of the view that the said conditions apply in cases where the owner and driver is one and the same persons i.e owner cum driver. That is not the case in this particular matter. 1^st Complainant's husband is the insured and registered owner of the vehicle. Vehicle was driven by Shijoy, who is having a valid driving license. There is no dispute regarding this aspect. In this case the proximate cause of the accident was the rash and negligent driving of the driver Shijoy. Opposite party was cross examined and he has clearly deposed that the deceased Biju has not obtained the policy by misleading or misrepresentation. Thus the present case is a case where accident had taken place without there being any fault of the deceased who was a pillion rider on the motor cycle. In view of the above discussions we allow the complaint.

Opposite party is directed to pay the complainants an amount of Rs.1,00,000/- (Rupees One lakh only) being the claim amount and Rs.20,000/- (Rupees Twenty thousand only) as compensation and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings. Order shall be complied within one month from the date of receipt of this order failing which the whole amount shall carry 9% interest on the aforesaid amount from the date of order till realisation.

Pronounced in the open court on this the 31^st day of December, 2009

Sd/-

Seena.H,

President

Sd/-

Preetha.G.Nair,

President

Sd/-

Bhanumathi.A.K,

Member

Appendix

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

DW1 – Shri.N.Balagopalan

Exhibits marked on the side of complainant

Ext.A1 – Policy

Ext.A2 – Letter No.101204/CLAIMS/0178/07 dtd.07/03/08 sent by opposite party to 1^st

complainant

Ext.A3 - Photo copy of FIR

Ext.A4 – Photo copy of Post-Mortem Certificate

Ext.A5 – Photo copy of Final Report

Ext.A6 – Photo copy of Witness list

Ext.A7 – Photo copy of Legal Heirship Certificate

Exhibits marked on the side of opposite parties

Ext.B1 – Personal Accident Insurance Claimant's Statement

Ext.B2 – Copy of letter sent by 1^st complainant to opposite party

Ext.B3 – Photo copy of Certificate of Registration

Ext.B4 – Copy of Insurance policy

Ext.B5 – Copy of letter sent by opposite party to 1^st complainant

Costs (Allowed)

Rs.1,000/- (Rupees One thousand only) allowed as cost of the proceedings