State Consumer Disputes Redressal Commission
The New India Assurance Co.Ltd., vs Smt M.Lalithamma W/O Late M.Kristappa ... on 23 January, 2012
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.414 OF 2010 AGAINST C.C.NO.40 OF 2007 DISTRICT FORUM ANANTHAPUR Between The Branch Manager The New India Assurance Co.Ltd., D.No.16-3-474/A, Krishna Mansion Main Bazar, Hindupur, Ananthapur Dist. Appellant/opposite party no.2 A N D 1. Smt M.Lalithamma W/o late M.Kristappa 2. Sri M.Chandrasekhar S/o late M.Kristappa 3. Sri M.Guru Raj S/o late M.Kristappa (respondents no.2 & 3 are minors rep. by their mother & natural guardian Smt M.Lalithamm 1st respondent) Respondents no.1 to 3 are R/o D.No.11/717-A Near Anjaneya Swamy Temple, Gaddameeda Veedhi, Hindupur, Ananthapur 4. Sri Subhan Sait S/o Sri Habeeb Sait Ex-Municipal Chairman and lorry owner D.No.7-2-120, D.L.Road, Hindupur Ananthapur District Respondents/complainants Counsel for the appellant Smt A.Jayanthi Counsel for the Respondents Sri M.Karibasaiah QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER MONDAY THE TWENTY THIRD DAY OF JANUARY TWO THOUSAND TWELVE Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. Facts of the case giving rise to filing of the appeal are that the fourth respondent insured his Lorry bearing registration number TN-69C-3766 with the appellant insurance company by paying premium of `10,856/-. On 12.04.2003, the driver of the fourth respondent, M.Kistappa was proceeding in the lorry from Hyderabad to Hindupur and the lorry met with an accident at Pothulamadugu and he died at the spot. The Police, Annasagar registered a case in crime number 43 of 2003. The respondent nos.1 to 3 filed Workmen Compensation case W.C.No.3 of 2004 before the Assistant Commissioner of labour and he had passed an award in favour of the respondent nos.1 to3. After receiving the amount under the award, the respondent nos.1 to 3 issued notice to the fourth respondent claiming additional compensation of `2,00,000/- under personal accident clause of the insurance policy.
2. The fourth respondent had not chosen to contest the claim and he was proceed exparte.
3. The appellant insurance company contested the claim on the premise that the respondent no.1 to 3 had already received the amount under the provisions of the Workmen Compensation Act and they cannot claim further amount from the fourth respondent and the appellant insurance company. It is contended that the complaint is not filed within the period of limitation and that the liability of personal accident risk to owner-cum-driver and not for the paid driver is covered under the insurance policy.
4. The first respondent has filed her affidavit and the documents Exs.A1 to A7. On behalf of the appellant insurance company no documents had been filed.
5. The District Forum has allowed the complaint against the opposite party insurance company on the premise that additional premium of `100/- paid by the fourth respondent covers the liability of personal accident risk of the paid driver also in terms of the endorsement no.17 of the IMT.
6. Aggrieved by the order of the District Forum, the opposite party insurance company filed the appeal contending that the respondents no.1 to 3 are not consumers within the meaning of the provisions of the Consumer Protection Act and that they had already received the claim amount in W.C.No.3 of 2004 under Workmen Compensation Act. The accident occurred on 12-04-2003 and despite specific plea taken by the appellant insurance company, the District Forum has not decided the issue on limitation. There is no privity of contract between the deceased and the insured. The deceased is not the owner of the insured vehicle and he was only a paid driver. IMT-17 endorsement is applicable only to the cases filed under Motor Vehicles Act and Workmen Compensation Act and not to the cases filed under the provisions of the Consumer Protection Act.
7. The counsel for the complainant filed written arguments.
8. The points for consideration are:
i) Whether the respondents are entitled to the amount sought for?
ii) Whether the complaint is filed within the period of limitation?
iii) To what relief?
9. The fourth respondent insured his Lorry bearing registration number TN-69C-3766 with the appellant insurance company by paying premium of `10,856/-.It is not disputed that additional premium of `100/- was collected by the appellant insurance company collected from the fourth respondent towards the liability of personal accident of owner cum driver. Admittedly, the deceased was a paid driver and was under the employment of the fourth respondent as on the date of the occurrence of the accident. The respondents no.1 to 3 filed application claiming compensation in W.C.No. 3 of2004 before the Assistant Commissioner of labour and an award was passed in their favour and against the fourth respondent and the appellant insurance company. The question which need be addressed herein is the maintainability of the complaint.
10. The learned counsel for the appellant insurance company has contended that this Commission had rejected the similar claim in F.A.No.273 of 2010, Royal Sundaram Alliance Insurance Company Ltd and others vs Konduru Lakshmi and others decided on 28-07-2011 wherein it was held that the legal heirs of the deceased employee have to proceed under the provisions of the Workmens Compensation Act . It was held therein that the liability of the insurance company arises in terms of Section 4 of the Policy for personal accident of owner when he drives the insured vehicle. IMT 28 and 39 were quoted which read as under:
I.M.T.28 LEGAL LIABILITY TO PAID DRIVER AND/OR CONDUCTOR AND/OR CLEANER EMPLOYED IN CONNECTION WITH THE OPERATION OF INSURED VEHICLE :
In consideration of an additional premium as stated in the schedule notwithstanding anything to the contrary contained in the Policy it is hereby understood and agreed that the company shall indemnify the insured against the Insureds legal liability under the Workmens Compensation Act,1923, the Fatal Accidents Act,1855 or at common law and subsequent amendments of these Acts prior to the date of this endorsement in respect of personal injury to any paid driver and/or conductor and/or cleaner whilst engaged in the service of the insured in such occupation in connection with the vehicle insured herein and will in addition be responsible for all costs and expenses incurred with its written consent.
IMT 39 LEGAL LIABILITY TO PERSONS EMPLOYED IN CONNECTION WITH THE OPERATION AND/OR MAINTAINING AND/OR LOADING AND/OR UNLOANDING OF MOTOR VEHICLES.
In consideration of the payment of an additional premium as stated in the Schedule, it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the Company shall indemnify the insured against his legal liability under the Workmens Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this Endorsement, the Fatal Accidents Act,.1855 or at Common Law in respect of personal injury to any paid driver ( or cleaner or conductor or person employed in loading /or unloading but in any case not exceeding seven in number ( including driver and cleaner) whilst engaged in the service of the insured in such occupation in connection with the vehicle insured and not exceeding seven in number and will in addition be responsible for all costs and expenses incurred with written consent.
11. The learned counsel for the respondents no.1 to 3 relied upon the decision of the State Commission, Rajasthan in National Insurance Company Ltd vs Yogeshwera Verma 2006 CPJ-1-104 . That was a case where the owner of the vehicle paid basic premium of `160/- and additional premium of `50/- for coverage of risk of the passengers. The National Commission held that the additional premium covers the risk of the passengers and also the driver, other than the owner. The facts of that case and those of the present case are entirely different.
12. It is admitted position that the appellant insurance company collected additional premium of `100/-to cover liability of personal accident of the owner. The learned counsel for the respondents no.1 to 3 would contend that coverage of risk for driver cum owner mentioned in Section IV of the schedule is not incorporated in the policy. He, further contends that as per IMT-17, the additional premium also covers the risk of personal accident of the paid driver also. In terms of IMT-17, additional premium has to be paid for the paid driver. Admittedly, no additional premium was paid for covering risk of the personal accident to the paid driver. The additional premium paid was for the PA of the owner cum-driver.
13. The Honble Supreme Court held that the terms and conditions of the insurance policy have to be interpreted as they are and they have to be given utmost significance while deciding any dispute between the insured and the insurer. In Oriental Insurance Co. Ltd. v. Sony Cheriyan, II (1999) CPJ 13 (SC)=VI (1999) SLT 565=(1999) 6 SCC 451, it has been held as follows :
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.
14. In the light of the ratio laid down in the aforementioned decisions, the complainant is not entitled to any amount as per the terms and conditions of the insurance policy. We do not see any arbitrariness in repudiation of the claim.
15. In the result the appeal is allowed. The order of the District Forum is set aside. Consequently the complaint is dismissed. The parties shall bear their own costs.
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MEMBER Sd/-
MEMBER Dt.23.01.2012 KMK*