Jammu and Kashmir

Jammu

CC/224/2017

SHAFEQ BEGUM - Complainant(s)

Versus

United India Insurance - Opp.Party(s)

SARFARAZ SHAH

19 May 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No.                 416/DFJ         

 Date of  Institution    19-01-2017

 Date of Decision         03-05-2018

 

1.Shafiqa Begum,

W/O Late Shokat Hussain,

2.Sajjad Ahmed,

S/O Late Shokat Hussain.

3.Ruksar Akhter

D/O Late Shokat Hussain

All residents of Surankote,Distt.Poonch,

All at present residents of Poonch Colony,

Bantalab Jammu(Complainants No.2&3 being

Minor through natural guardian i.e.complainant No.1-mother)

                                                                                                                                                                Complainants

            V/S

United India Insurance Co.Ltd.

Divisional Office Purani Mandi,Jammu.

                                                                                                                                                -Opposite party

CORAM

                  Khalil Choudhary             (Distt.& Sessions Judge)   President

                  Mrs.Vijay Angral                                                              Member

                  Mr.Ghulam Sarwar Chauhan                                        Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.Sarfaraz Shah,Advocate for complainants, present.

Mr.Sanjay K.Dhar,Advocate for OP,present.

 

ORDER

                                 Grievance of complainants as dicernible from the complaint is that predecessor-in-interest, of complainants, namely Shokat Hussain,(i.e.husband of complainant No.1 and father of complainants No.2&3 )being registered owner of vehicle(Truck)bearing registration No.JK02B-6319,got the same comprehensively insured with OP under policy No.1118003110P001414581,(copy of route permit and policy is annexed as Annexure-A&B).According to complainant on,04-06-2011 the vehicle of the husband of complainant No.1 met with an accident at Sayote,Akhnoor,Distt.Jammu and FIR was registered with Police Station Akhnoor,copy of FIR and death certificate and D/L is annexed as Annexure-C  and the complainant No.2 submitted insurance policy to the office of OP for making payment of compensation,however,despite receipt of copy of insurance and other documents, the Op did not pay any compensation to complainants. Allegation of complainants is that no steps have been taken by the Op for making payment due to said accident of vehicle in which the husband of complainant No.1 was died and at the time of accident, the deceased was driving the vehicle which was evident from the FIR registered in the Police Station Akhnoor and number of representations made by them for payment of compensation. Complainants further submitted that they preferred a claim for a sum of Rs.9,50,000/-to OP for indemnification on account of death deceased husband of complainant No.1 and father of complainants No.2&3,but the OP had been avoiding the same on one pretext or the other and this act of OP constitutes deficiency in service on the part of Op,hence the present complaint. In the final analysis, complainants prays for indemnification of loss to the tune of Rs.9,50,000/-alongwith interest @ 12% per annum from the date of occurrence and in addition also prays for compensation of Rs.30,000/-including litigation charges.

                  On the other hand,OP filed written version and resisted the complaint on the ground that the present complaint is not maintainable and deserves out right dismissal on the ground that any bodily injury or death to the owner cum driver or owner of vehicle in question was not cove4red under the contract of insurance. Since the policy of insurance on the basis of which compensation  has been sought does not cover the risk of owner cum driver of vehicle in question I.e.deceased Shokat Hussain and no such liability has been undertaken by the OP,therefore,OP company cannot be held liable either to indemnify or pay any compensation in favour of complainants. The complainants cannot seek indemnification beyond the scope and ambit of policy of insurance. That the Honble Apex Court in Oriental Insurance Company Ltd.V/S Sony Cheriyan has held that The Insurance Policy between the insurer and insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein. It is pertinent to mention here that the complainants herein had filed a claim petition under the provisions of Motor Vehicles Act, 1988 before MACT,Poonch seeking compensation on account of death of Shokat Hussain owner cum driver of the vehicle bearing registration No.JK02B-6319 in a road accident which occurred on,04-06-2011 as a result of rash and negligent driving by the deceased while driving the subject vehicle. Since the said claim petition was not maintainable on the count that M.V.Act does not contemplate coverage of any bodily injury or death to the owner of the vehicle unless such risk is covered by policy and also section 147 of M.V.Act does not require Insurance Company to assume the risk for death or bodily injury to owner of vehicle,therefore,later on said claim petition was withdrawn by the complainants.However,the interim compensation U/S 140 of the M.V.Act on the principle of no fault liability was awarded by the MACT,Poonch in favour of complainants and OP was made to pay sum of Rs,.50,000/-when execution proceedings were initiated against Insurance Company. Rest of contents are denied.

                 Complainants adduced evidence by way of duly sworn evidence affidavit and affidavit of Farooq Ahmed.Complainants have placed on record copy of route permit, copy of policy, copy of FIR, copy of death certificate and copy of Driving licence.

               On the other hand,Op adduced evidence by way of duly sworn evidence affidavit of Suresh Gupta,Divisional Manager, United India Insurance Co,Ltd.               

                We have perused case file and heard L/Cs for the parties at length.

                              After hearing L/Cs for parties and perusing the case file, the point for consideration is, as to whether or not OP is deficient in service in not settling the case of complainant.

                      Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

              L/C for complainant vehemently argued that despite completion of all requisite formalities,OP did not settle the claim, therefore, same constitutes deficiency in service.

              L/C for OP Company vehemently argued that since the deceased was himself the owner of the insured vehicle and as per policy his risk on account of death or injury is not covered under the contract of insurance policy obtained in respect of the said vehicle. Perusal of policy of insurance on record does not indicate that any premium has been paid with regard to covering the risk of insured owner cum driver under the Personal Accident Clause. It is settled law that unless premium for covering of any risk on account of death or injury of owner cum driver is paid under the policy of insurance, the Insurance Company will not be liable to indemnify or pay the compensation.

            L/C for OP placed reliance on the judgment of Supreme Court of India in case titled Oriental India Insurance Co.Ltd.V/S Sony Cheriyan reported in (1999)6 SCC 451,wherein their Lordships observed:

     The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy.

                        Further also to make it more clear, as for as the terms of the policy are concerned reliance can be had to judgment in case titled Indraprastha Gas Ltd.V/S New India Assurance Co.Ltd.& Ors. reported in 1(2015)CPJ 279(NC)wherein the relevant para it is laid down:

        The court has to give material meaning to the document. It is not open to the court to make any addition to or subtraction from the terms and conditions contained in Insurance Policy.

                        It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment.

                            Admittedly the Policy of insurance relied upon by both the parties clearly shows that no premium has been paid by the deceased or insured towards the coverage of risk on account of personal accident or otherwise in respect of injury or death caused to the insured owner cum driver. The complainant has not also proved on record that risk of deceased being owner cum driver of the vehicle was covered and it is not proved by the complainant that how the risk of deceased was covered under the Motor Insurance Policy in question.

                        It is further to be noted that complainants though got opportunity to rebut the version of OP and documentary proof in support thereof in its evidence affidavits, but complainants kept mum,therefore,we have no reason to disbelieve the version of OP.Even otherwise, it is settled preposition of law that burden lies upon complainant to prove deficiency in service on the part of OP, but complainants failed to discharge their burden,therefore,we did not see any deficiency in service on the part of OP

                            Therefore, we are of the opinion that complainants have failed to prove their case against the OP, therefore, proceedings are not initiated in terms of law.

                   In afore quoted back drop, complaint fails, accordingly, same is dismissed. However, in the facts and circumstances of the matter, parties are left to bear their own costs. File after its due compilation be consigned to records.

 Order per President                                              Khalil Choudhary

                                                                         (Distt.& Sessions Judge)

Announced                                                              President

 03-05-2018                                                   District Consumer Forum

Agreed by                                                                Jammu.

 

Mrs.Vijay Angral          

Member        

 

Mr.Ghulam Sarwar Chauhan,

Member