State Consumer Disputes Redressal Commission
The National Insurance Company ... vs Brundavathi Dora,Palasa Mandal, ... on 15 May, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD. F.A.No.614/2012 against C.C.No. 50/2010, Dist. Forum,Srikakulam. Between: 1.The National Insurance Company Limited, Rep. by its Divisional Manager, Divisional Office-7, (350700) 50-Janpath Road, New Delhi, Pin.110001. 2. The National Insurance Company Limited, Rep. by its Divisional Manager, Divisional Office-II. Dwarakanagar, Visakhapatnam. 3 . The National Insurance Company Limited, Rep. by its Branch Manager, Near Krishna Park, Srikakulam. . Appellants/ Opp.parties 1 to 3 And Brundavathi Dora, W/o. late Brundavan Dora, Aged about 45 years, Hindu, Vaddichakali, Rentikota Village, Palasa Mandal, Srikakulam District. Respondent/ Complainant Counsel for the Appellants : M/s.K.R.R.Associates Counsel for the Respondent : Ms.M.Sasikala Devi QUORUM: SMT.M.SHREESHA, HONBLE INCHARGE PRESIDENT And SRI S.BHUJANGA RAO, HONBLE MEMBER.
WEDNESDAY, THE FIFTEENTH DAY OF MAY, TWO THOUSAND THIRTEEN Oral Order : (Per Sri S.Bhujanga Rao, Honble Member).
*** This appeal is directed against the order dt.2.5.2012 of the District Consumer Forum at Srikakulam made in C.C.No.50/2010, whereunder the appellant/opp.parties are directed to pay jointly and severally a sum of Rs.1 lakh to the complainant within two months and 15 days from the date of this order, failing which, the complainant is entitled to interest @ 9% p.a. from the date of the claim till the date of realization. The opposite parties are further directed to pay Rs.7,500/- towards compensation and Rs.2000/- towards the costs of the complaint, to the complainant.
The appellants are the opp.parties and the respondent herein is the complainant in C.C.No.50/2010. For the sake of convenience, the parties are described as arrayed in the complaint.
The brief case of the complainant as set out in the complaint is as follows:
The vehicle bearing no.AP 30 G 1883 was insured with the opp.party no.1 insurance company. On 14.4.2008, the complainant and her husband by name Brundavan Dora, while returning to their village on Hero Honda Passion Plus Motor cycle bearing no.AP 30 G 1883 from Jarantara Sasanam, met with an accident on NH 5 Road at Besi Ramachandrapuram village by hitting a lorry. The said lorry was not stopped and went away after the accident. The complainant had received head injury and her husband died on the spot. On a report given by one Navakishore Dora, the SHO Baruva P.S. registered a case in Crime No.11/2008 u/s.304 A and 338 of IPC (Hit & Run).
The further case of the complainant is that during life time of her husband i.e. the deceased Brundavan Dora had purchased the above said vehicle in the name of his son and obtained insurance policy with opposite party no.1 vide policy no.00391802, for a period from 17.9.2007 to 16.9.2008. On 5.5.2008, the complainant approached opposite party no.3 and submitted her claim along with all required documents under the said policy and requested for payment of the assured sum under the said policy.
Despite several months lapsed, after making the claim, the opposite party no.3 has not settled the claim. Therefore, there is gross negligence and deficiency in service on the part of the opp.parties 1 to 3. Due to the negligent act of the opposite parties, the complainant suffered lot of mental agony and financial crisis.
Hence the complaint.
Resisting the complaint, the opposite party no.2 filed counter/written version, which was adopted by opposite parties 1 and 3, denying the material allegations made in the complaint and contended that the complainant herein failed to furnish correct particulars of the insurance policy, in the absence of correct particulars of the insurance policy, these opposite parties are not liable to pay any compensation to the complainant. The complainant has to approach competent authority i.e. District Collector, Srikakulam to get compensation in Hit & Run case, but not before the District Forum.
These opp.parties further contended that the complainant has not intimated the death of the deceased to the opposite party no.3 immediately after the accident to know the real facts by investigating the things. The complainant has not submitted claim forms to the opposite party no.3. Hence, there is no claim pending before the opposite party no.3 regarding the accident. Therefore, the question of repudiation of the claim by the opposite party no.3 does not arise and the complaint is not maintainable under law. In the absence of repudiation, there is no cause of action for the complaint.
There is no deficiency in service on the part of the opposite parties in discharging their duties. The complainant failed to file the original policy issued by the opposite party to prove the coverage of insurance and payment of additional premium to cover the risk of the deceased . In the absence of any insurance policy and proof of the payment of additional premium, the complaint is not maintainable under law.
The opp.party further contended that in this case, as per the contents of the complaint, the complainants husband is a third party and there is no contract in between the deceased/husband of the complainant and opposite party no.3 directly to cover the risk of the deceased. Therefore, this Forum has no jurisdiction to entertain the complaint and hence it is liable to be dismissed. There is no basis to the above claim. Therefore, the complaint is liable to be dismissed with exemplary costs.
During the course of enquiry, before the District Forum, the complainant filed her evidence affidavit along with Exs.A1 to A5 in support of her case. On behalf of the opposite parties G.V.V.S.Sarma filed his evidence affidavit and got marked Ex.B1, the photo copy of the policy details.
Upon hearing the counsel for both the parties and on consideration of the material on record , the District Forum allowed the complaint and directed the opp.parties as aforesaid.
Aggrieved by the said order, the opposite parties preferred the above appeal urging that the order of the District forum is contrary to law, facts and circumstances of the case. That the opposite parties have issued the said policy which was in collaboration with Hero Honda Motors and additional premium of Rs.50/- was paid towards Compulsory Personal Accident Cover (OwnerDriver) for a coverage of the owner-driver and that the Forum below has ordered beyond the pleadings and failed to appreciate that the person who was driving the vehicle was not the owner of the vehicle at all, the liability fastened against the company is in violation of the terms and conditions of the contract of insurance entered by the parties. That the District Forum failed to appreciate that in a contract of insurance, rights and obligations are governed by the terms of the contract, which have to be strictly construed and no exceptions can be made on the ground of equity. The deceased was not the owner of the vehicle as per the terms and conditions of the policy. Thus there is no deficiency in service on the part of the opposite parties. The appellants finally prayed for allowing of the appeal setting aside the impugned order.
We heard the counsel for both the parties and considered the entire material placed on record .
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
It is an admitted fact that the appellants/opp.parties have issued the above said policy, bearing policy no.35070131076200391802, which was in tie up with Hero Honda Motors Ltd. vide Ex.A5 the original policy. The name of the insured under the said policy is Mr.D.Pradeep Kumar who is the son of the complainant and the deceased. It is also an admitted fact that an additional premium of Rs.50/- was paid towards the compulsory personal accident cover to owner-cum-driver for a coverage of Rs.1 lakh only. The death of the deceased Brundavan Dora in the accident on 14.4.2008 was not seriously disputed by the opposite parties. However, the complainant proved the same by her evidence affidavit coupled with Ex.A1.
The learned counsel for the appellants/opp.parties submitted that the deceased who was driving the vehicle was not the registered owner of the insured vehicle at all and the liability fastened against the company is in violation of the terms and conditions of contract of insurance, entered by the parties. The personal accident cover for owner-driver is provided, but not to anyone else as per the subject policy.
In the subject case, the complainant filed the complaint in respect of the alleged accidental death of her husband who is not at all the insured under the subject policy, more particularly, the said deceased is not a registered owner-driver of the insured vehicle. The appellants have no liability to pay in respect of the alleged death of other than the owner-driver.
The District Forum failed to appreciate that the personal accident coverage was only for the driver-owner of the vehicle only. Therefore the impugned order of the District Forum is liable to be set aside.
The learned counsel for the respondent/complainant submitted that the deceased Brundavan Dora purchased the subject vehicle in the name of his son D.Pradeep Kumar and obtained Ex.A5 policy in the name of his son, therefore , the deceased cannot be treated as third party and the benefits under Ex.A5 policy cannot be denied to the complainant, who is the wife of the deceased.
The learned counsel placed his reliance before the District Forum as well as in this appeal on the following decisions :
1.
Ningamma and anr. Vs. United India Insurance Co. Ltd. reported in 2009 ACJ 2020 (SC)
2. New India Assurance Co.Ltd. vs. Umesh Kumar and others 2011 ACJ page 890 (HC Punjab & Haryana) In the Lingammas case (supra) the Honble Sureme Court of India held as under:
"In the case of Oriental Insurance Company Ltd. Vs. Rajni Devi and others, 2008(4) RCR (Civil) 905: 2008(6) RAJ 396: (2008) 5 SCC 736, wherein one of us, namely, Hon'ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof, It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res Integra. The liability under Section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have FAO No. 4416 of 2008 3 maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorized to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike."
It is also useful to refer to para 21 of the judgment of the Hon'ble Apex Court in Ningamma's case (supra), which reads as under:- "21. Section 147 of the MVA provides that the policy of insurance could also cover cases against any liability which may be incurred by the insurer in respect of death or fatal injury to any person including owner of the vehicle or his authorized representative carried in the vehicle or arising out of the use of vehicle in the public place."
Relying on the above judgement, the Honble High Court of Punjab & Haryana in New India Assurance Co. Ltd. vs. Umesh Kumari and others (supra) held as under:
In the present case, admittedly, the premium towards compulsory PA to owner cum driver was paid and therefore, in view of the aforesaid observations of the Hon'ble Supreme Court of India as referred to above, the insurance company was liable to make the payment of compensation. Faced with this situation, learned counsel for the appellant has argued that the terms and conditions of the policy makes it clear that if owner is driving the vehicle, in that case only, the aforesaid clause will come into play and the insurance company would be liable to pay. Since in the present case, the owner himself was not driving the vehicle, even if the premium has been paid covering the risk of owner-cum-driver, the same would not be applicable. The argument of the learned counsel for the appellant is without any merit.
The Honble High Court further observed as under:
In this regard, the aforesaid phrase would obviously mean to cover owner or driver of the vehicle. Moreover, it is the case of the appellant itself that Pawan Kumar deceased cannot be treated as a third party being son of the owner and he has to be termed as owner itself as he has stepped into the shoes of the owner by borrowing the vehicle with permission of the owner. If that is so, Pawan Kumar deceased has to be treated as owner of the vehicle and in that eventuality, the aforesaid clause of comprehensive policy would cover the claim of the claimant and on the basis of the aforesaid clause of the policy, the appellant is liable to pay compensation.
The ratio in the above said two rulings is squarely applicable to the facts of the present case. In view of the above rulings, we are not inclined to accept the submissions made by the learned counsel for the appellants. In the present case, it is the case of the respondent/complainant that Brundavan Dora, the deceased cannot be treated as a third party, being the father of the owner as he purchased the motor cycle in the name of his son and obtained Ex.A5 policy, in the name of his son and he has to be termed as owner itself.
If that is so, Brundavan Dora, the deceased has to be treated as owner of the vehicle and in that eventuality, the aforesaid clause of the comprehensive policy, would cover the claim of the claimant and as such the appellants are liable to pay compensation to the complainant under the policy.
For the aforesaid facts and circumstances, there is deficiency in service on the part of the opposite parties in repudiating the claim of the complainant and we find no material irregularity or illegality in the impugned order of the District Forum to interfere with it.
In the result, the appeal is dismissed, confirming the impugned order of the District Forum. In the circumstances, there shall be no order as to costs.
INCHARGE PRESIDENT MEMBER PM* Dt. 15.5.2013