State Consumer Disputes Redressal Commission
Anita Bhausaheb Deshmukh vs The Oriental Insurance Co Ltd on 22 March, 2022
1 A/155/2020
Date of filing :04.02.2020
Date of order :22.03.2022
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, BENCH AT AURANGABAD.
FIRST APPEAL NO. : 155 OF 2020
IN COMPLAINT CASE NO.: 10 OF 2018
DISTRICT CONSUMER FORUM : OSMANABAD.
Anita Wd/o Bhausaheb Deshmukh,
R/o Pohner, Tq.&Dist. Osmanabad APPELLANT
VERSUS
1. The Oriental Insurance Company Ltd,.
321/A/2 Oswal Banu Smaj Building,
J.N.Road, in front of Hotel Seven Loves,
Pune - 411 042.
2. Jayka Insurance Borkers Pvt. Ltd,.
2nd floor, Jayaka Building, Commercial road,
Civil Lines, Nagpur 440 001.
3. Taluka Krushi Adhikari,
Taluka Krushi Adhikaro Karyalay
Osmanabad. RESPONDENT No.1to3.
CORAM :Smt.S.T.Barne, Hon'ble Presiding Judicial Member.
Mr.K.M.Lawande, Hon'ble Member.
Present : Adv.D.A.Madake for appellant,
Adv.P.M.Hiwale for respondent No.1.
Adv.S.K.Labade for respondent no.2.
JUDGMENT
(Delivered on 22/03/2022) 2 A/155/2020 Per Smt.S.T.Barne, Hon'ble Presiding Judicial Member.
1. This appeal is arising out of judgement and order in C.C.No.10/2018, decided by District Consumer Forum Osmanabad on 17 January 2018. The appellant Anita Bhausaheb Deshmukh, is the complainant and present respondent No.1to3 the Oriental Insurance company is the opponent no.1, Zaika Insurance Brokerage is the opponent no. 2, Taluka Agriculture Officer is opponent no. 3, in the original complaint. They are hereinafter referred as per their status in the original complaint.
2. It is the case of complainant that, she is the wife of deceased Bhausaheb Bhagwanrao Deshmukh. On 16th March, 2017 she was proceeding on motorcycle along with her diseased husband Babasaheb Bhagwan Deshmukh from Khamgaon to Pohaner. At that time one S.T. bus driver came with ST bus no. MH20-BL- 1624 with rash and negligent manner and gave dash to their motorcycle and they met with an accident. The said accident occurred due to rash and negligent driving of the driver of ST bus. Her husband died in the said accident. Her husband was agriculturist. He was having agricultural land at mauje pimpri Tq. and District Osmanabad. The death of the deceased occurred in the accident. Therefore, the complainant has submitted her claim proposal under "Shetkari Apaghat Vima Yojana". The opponent Insurance Company has repudiated the claim on the ground that, her husband was not having valid & effective driving licence, at the time of accident. Therefore, due to said deficiency in service on the part of opponent no.1, she has constrained to file consumer complaint and claimed compensation amount of Rs. 2 Lakhs along with 9% interest from the date of complaint. She has also claimed 3 A/155/2020 Rs. 10,000/- towards mental agony and Rs.5,000/- towards the cost of proceedings.
3. It reveals from the judgement of District Forum that, the opponent no.1, Insurance Company has filed its reply before District Consumer Forum and submitted that, the deceased was not having effective driving licence. He died while driving motorcycle without having driving licence. Hence, it is submitted that, by letter dated 28th November, 2017, the opponent no.1, Insurance Company informed the complainant about repudiation of the claim, for want of valid & effective driving licence. It is the contention of opponent no.1, that as per the insurance agreement, it is binding on the claimant to submit driving licence as per terms V and VI sub clause A(2) if the diseased who was driving vehicle was not having effective driving licence, legal heirs of deceased or the injured claimant are not entitled for compensation towards the agricultural insurance, under Shetkari apghat Vima Yojana.
4. The opponent No.2, Zaika Brokerage has mentioned about the procedure for submitting claim and contended that, it is up to Insurance Company to allow or repudiate the claim. In this case the claim submitted by complainant is repudiated as deceased was not having effective driving licence.
5. The opponent no.3 Agriculture Officer has submitted that, the claim proposal submitted by complainant was forwarded to District Agriculture Officer by scrutinizing the documents. After giving opportunity to the parties the District Consumer Forum pleased to dismiss the complaint for non compliance of documents such as effective driving licence, which is the requirement as per agreement.
4 A/155/2020
6. The District Consumer Forum on giving opportunity to the parties pleased to dismiss the complaint. Therefore, being aggrieved by the judgement and order of District Consumer Forum the complainant has preferred this appeal on the following grounds.
That, the order passed by the District Consumer Forum, Osmanabad is against the facts and provision of law. The District Consumer Forum failed to consider the judgment in Writ Petition No. 9650/2014 wherein the Hon'ble Lordship of Bombay High Court held that, clause no.21 of the scheme of "Gopinath Munde Shetkari Aapghat Vima Yojna" cannot be considered to be mandatory and the benefits of the scheme framed for social advancement cannot be denied to heirs of the deceased. The District Consumer Forum, Osmanabad has dismissed the complaint on technical grounds and failed to consider observations of Hon'ble High Court in the judgment stated Supra. The District Consumer Forum to consider that, in the entire documents there is no mentioned that the deceased was at fault while who is driving the vehicle. Hence, the judgment of District Consumer Forum needs to be set aside.
7. On the basis of respective contentions of the parties following points arise for our determination.
Sr.No. Points. Answers.
1. Whether, there is deficiency in service Yes.
On the part of opponent?
2. Whether, there requires interference Yes.
in the order of District Consumer Forum?
3. What order? As per final order.
5 A/155/2020
REASONING
Point Nos.1&2 :-
08. The Ld. Adv. for complainants submitted that, complainants have submitted all requisite documents. However, the opponent Insurance Company has repudiated the claim for want of driving licence of deceased. In fact, accident occurred due to fault on the part of driver of the S.T.Bus, and not due to the fault on the part of deceased. That, the State Govt. has introduced the insurance scheme for the benefit and protection of farmers. Hence, the claim cannot be rejected for non production of driving licence. Hence, the appeal deserves to be dismissed.
09. The Ld. Adv. for complainant emphasised on the point that, though the deceased was riding motorcycle he was not at fault. The offence is also registered against the driver of offending vehicle. The complainants relied upon the documents submitted along with claim proposal, claim forms 1to3, declaration A, B, copy of letter addressed to Agriculture Officer, 7/12 extract, mutation entry copy, copy of spot panchanama, inquest panchanama, and post mortem report etc. These documents are at page Nos. 28 to 78.
10. The Ld. Adv. for respondent/opponent no.1 argued that, the deceased himself was riding motor cycle at the time of accident. The opponent Insurance Company directed the complainant to produce requisite documents including driving licence of deceased. The opponent came to know that, deceased was not having driving licence and there is breach of policy condition 6 A/155/2020 mentioned in the agreement as per clause V,VI, A(2). This fact itself was sufficient to repudiate the claim. Hence, in repudiating claim there is no deficiency in service on the part of opponent Insurance Company.
11. We have perused the documents produced by complainants along with claim proposal, they are at page No. 28 to 78. It reveals that, the complainants have complied all requisite documents to show that, deceased was agriculturist , his death is occurred in the motor cycle accident. However, it has come on record that deceased was driving motor cycle. Therefore, the complainants were asked to produce driving licence. Due to non compliance of said documents the claim is repudiated. It reveals that, the accident occurred due to the fault on the part of S.T.Bus driver, offence is also registered against him. When the claim is repudiated for want of driving licence, the opponent Insurance Company could have inquired about driving license of deceased with RTO.
12. The Ld. Adv. for complainant argued that, as per the circular of State Govt., if the claimant could not produce the valid and effective driving licence of deceased who was not at fault, the claim cannot be rejected. The complainants have also relied upon the judgment of Hon'ble High Court in 9650/2014 Bhagyashree Dhage Vs. The State of Maharashtra wherein the Hon'ble Lordship of Bombay High Court held that, clause 21 in the resolution cannot be considered as mandatory. The reliance also can be placed on judgment of Hon'ble Bombay High Court in W.P.No. 10185/2015 - Latabai Raosaheb Deshmukh Vs. State of Maharashtra & Ors. decided on 6.3.2019, which is reproduced by District Consumer Commission. Wherein the Hon'ble High 7 A/155/2020 Court observed that, there was nothing to infer that accident was occurred due to fault of deceased, and to reject the claim. Insurance Company has committed deficiency in service mistaken in rejecting claim. In view of the scheme introduced for benefit of farmers, as seen in GR of 2009 is binding on the insurance company. This court hold that, compensation needs to be given to the petitioner and interest also to be paid, as provided in GR of 2009
13. In the case in hand the parties have not produced said GR of 2009 in the matter. But said GR is made available before this Commission in similar cases decided by this Commission. In the agreement of insurance, the terms & condition, more particularly the clause VI A is reproduced as it is. However, we failed to understand as to why the word the driver at fault who was driving the vehicle is not mentioned in the agreement as it is word "fault" दोषी चालक which is mentioned in the scheme is observed in the agreement, there is simply word "driver", driving the vehicle is mentioned.
14. Here the documents produced by complainant itself state that, the accident occurred while deceased was riding the motor cycle. FIR state that, offence is registered against the driver of car on offending vehicle and not against deceased motor cycle rider. With this it is necessary to read the circular issuing Govt. of Maharashtra in the year 2009. The Government resolution dated 04.12.2009 on the basis of which the scheme is recommended along with certain terms and conditions specified in the circular along with schedule A,B,C,D attached to said circular. The clause E-6 of the resolution specified on page No.8 states that, in case of death in motor accident except the death claim of 8 A/155/2020 "offending" driver ("दोषी" वाहनचालक) all other claim of agriculturists to be settled in case of death occurred in a motor accident. If clause E-21 is read, it reveals that it is necessary to furnish valid and effective driving licence of the driver who met with an accident while driving the vehicle. However clause E-6 categorically states that except the offending driver (driver at fault) claim of all agriculturist be settled. Thus, the valid license is required in case death of 'offending' driver (i.e.driver at fault) (दोषी वाहनचालक). Word 'दोषी वाहन चालक' is very material in the case in hand. Because it is apparent that deceased agriculturist was though driving motor cycle he was not at fault and there is also no nexus between driving license and cause of accident on the part of deceased.
15. We have also perused prapatra ड, in GR dt. 04.12.2009, which is modified or amended one, Wherein the categories of accident and required documents is given, which are required while submitting claim proposal. If we read prapatra ड which states about documents to be submitted with claim in column at serial No.1, it is specifically mentioned that in case of road accident and rail accident, the claimant has to submit copy of FIR, spot panchnama, inquest panchnama and. Post mortem report. The Prapatra ड is silent to state that in case of death of person in motor accident and if he was driving vehicle required to produce driving licence. Hence submission of driving license of deceased cannot be the mandatory requirement. Even otherwise in the case in hand the police paper, the FIR states that accident occurred due to fault on the part of driver of unknown vehicle and FIR is registered against driver of unknown vehicle . Hence, in the case in hand it is not desirable to ask the claimant to produce valid and effective driving licence. Moreover, the cases wherein 9 A/155/2020 driving license is required, burden is on Insurance Company to prove that, deceased was not having valid driving license, at the relevant time as the person driving vehicle is not alive and hence in Shetkari Apghat Vima Yojna, generally the legal heir such as widow being rustic villager is not expected to furnish such document.
16. With the aforesaid discussion, in view of distinguishing fact and circumstances and on going through the Govt. resolution in Marathi and cases referred by the parties we are of the opinion that the opponent insurance company by repudiating the claim has caused deficiency in service on the part of opponent no.3. The District Forum has not properly appreciated the documents and the scheme and object behind the same and remand the complaint. Therefore, there requires interference in the judgement and order of District Forum. We therefore answer the points accordingly and pass following order.
ORDER
1. Appeal is partly allowed
2. The judgment and order in C.C.No.10/2018 dated 17.01.2020 is hereby set aside.
3. The opponent no.1 Insurance Company shall pay the amount of Rs.2,00,000/- to the complainant with 9 % interest from the date of filing of consumer complaint.
4. The opponent no.1 shall pay Rs.3,000/- towards mental agony 10 A/155/2020 and Rs.2,000/- towards cost of proceeding.
5. No order as to costs in appeal.
Mr.K.M.Lawande Smt.S.T.Barne, Member Presiding Judicial Member UNK