State Consumer Disputes Redressal Commission
Bharti Axa Gen. Insurance Company Ltd. vs Rajinder Kaur on 14 August, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
First Appeal No. 781 of 2016
Date of institution : 13.10.2016
Reserved on : 28.07.2017
Date of decision : 14.08.2017
Bharti AXA General Insurance Company Ltd., First Floor, Femslcon
Survey No.28, Doddanekundi, Bangalore, through its Authorized
Signatory Ms. Shivali Sharma, Senior Executive Legal.
.......Appellant-Opposite Party No.2
Versus
1.Rajinder Kaur widow of Gurdarshan Singh;
2. Harmandeep Kaur, minor daughter of Late Gurdarshan Singh,
3. Balwinder Singh minor son of Late Gurdarshan Singh, Residents of Village Kheri Chandwan, Tehsil and District Sangrur.
.......Respondents Nos.1 to 3/Complainants
4. Jay Kay Enterprises, Sangrur Road, Bhawanigarh, Tehsil and District Sangrur through its Manager.
........Respondent No.4-Opposite Party No.1 First Appeal against the order dated 8.8.2016 of the District Consumer Disputes Redressal Forum, Sangrur.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President Present:-
For the appellant : Shri Sachin Ohri, Advocate. For respondents Nos.1 to 3: Shri T.P. Singh, Advocate.
For respondent No.4 : Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The instant appeal has been filed by the appellant/opposite party No.2, Bharti AXA General Insurance Company Limited, against First Appeal No.781 of 2016 2 the order dated 8.8.2016 passed by District Consumer Disputes Redressal Forum, Sangrur (in short, "the District Forum"), whereby the complaint filed by respondents Nos.1 to 3/complainants, under Section 12 of the Consumer Protection Act, 1986 (in short, "the C.P. Act"), was allowed and the appellant/opposite party No.2 was directed to pay to the complainants in 1/3rd share an amount of ₹1,00,000/- on account of the death of the DLA and further ₹14,000/- on account of damage to the motorcycle, along with interest @ 9% per annum from the date of filing of the complaint i.e. 1.12.2015 till realization. Compensation of ₹10,000/- and litigation expenses of ₹5,500/- were also awarded to the complainants.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the complaint:
3. Brief facts, as averred in the complaint, are that the complainants are the legal heirs of deceased Gurdarshan Singh (hereinafter referred to as "DLA"); complainant No.1 being the widow and complainants Nos.2 and 3 being daughter and son. The DLA purchased a motorcycle bearing Registration No.PB-13-AD-4632 from opposite party No.1 on 10.9.2014 and got the same insured comprehensively from opposite party No.2, vide Policy No.S0659593. An amount of ₹1,00,000/- was also payable in case of death of the insured/driver. It is further averred that on 26.7.2013 the DLA was coming from Dhuri to his village on the motorcycle in question and when he reached near Village Dhura, a truck bearing Registration No.PB-10-L-9800 coming from the opposite side struck First Appeal No.781 of 2016 3 with the motorcycle in question, as a result of which the DLA fell down on the road along with the motorcycle. The DLA suffered multiple injuries on his head, face and vital parts of the body and, as such, the DLA was immediately taken to Civil Hospital, Dhuri from where he was referred to Rajindra Hospital, Patiala and subsequently to PGI, Chandigarh, where he died on 27.8.2013. The complainants approached opposite party No.1 to get the motorcycle repaired, who advised to get the lump sum claim of ₹14,000/-. The complainants also claimed the amount of ₹1,00,000/- from the opposite parties and submitted all the documents to opposite party No.2 but it did not pay the insurance claim. Alleging deficiency in service on the part of the opposite parties, the complainants filed the present complaint for directing the opposite parties to pay the insurance claim amount of ₹1,00,000/- on account of death claim and further to pay ₹14,000/- on account of loss of the motorcycle along with compensation and litigation expenses.
Defence of opposite party No.1:
4. Opposite party No.1 in its reply took legal objections that the complaint is not maintainable. The complainants have got no locus-
standi to file the complaint. The District Forum has no jurisdiction to hear and try the complaint. On merits, the sale and purchase of the motorcycle and insurance is admitted. It is also admitted that the accident took place on 26.7.2013 and the DLA died on 27.8.2013. Denying all other allegations levelled in the complaint, a prayer for dismissal of the complaint has been made.
First Appeal No.781 of 2016 4Defence of Opposite Party No.2:
5. Opposite party No.2 in its reply took preliminary objections that the complaint is false, frivolous, vague and vexatious in nature. The insurance of the vehicle in question is admitted. It is stated that the accident took place on 26.7.2013 and the claim was lodged on 16.10.2013 with a delay of 82 days and the police report was lodged on 9.8.2013 with a delay of 14 days. Therefore, there is violation of condition No.1 of the Policy. It is further stated that the DLA was under the influence of liquor and the accident took place due to his negligence. The complainants did not provide post mortem report.
Complicated questions of law and fact are involved in the complaint and the complainants have not come to the District Forum with clean hands. On merits, it is denied that the accident took place due to wrong driving of truck No.PB-10-L-9800; rather the accident took place due to the negligence of the DLA himself. After getting the information from the complainants, the opposite parties appointed Rishab Malhotra, Surveyor and Loss Assessor for assessing the loss, who assessed the loss to the tune of ₹26,507/- on repair basis but the complainants agreed to get the claim at ₹14,000/- in full and final settlement. Thereafter the driving licence of the DLA was sent for verification through RTI on 9.12.2013 to the Licensing Authority, Fatehgarh (Farukabad) and appeal under the RTI was also sent on 19.2.2014 but no reply was received. As such the claim of the complainant was repudiated, vide letter dated 14.7.2014 as per the terms and conditions of the policy. Denying any deficiency in service on its part a prayer for dismissal of the same has been made. First Appeal No.781 of 2016 5 Finding of the District Forum:
6. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide impugned order. Hence, this appeal.
7. I have heard learned counsel for opposite party No.2 and counsel for complainants as opposite party No.1 was proceeded against ex parte, vide order dated 14.12.2016. I have carefully gone through the records of the case.
Contentions of the Parties:
8. It was vehemently argued by the learned counsel for opposite party No.2 that the accident took place on 26.7.2013 and the claim was lodged on 16.10.2013 with the delay of 82 days and the DDR was lodged on 9.8.2013 with the delay of 14 days. Therefore, there was violation of condition no.1 of the Policy. As per the terms and conditions of the Policy based on General Regulation 36 of India Motor Tariff, the personal accident cover is payable only if the driver of the vehicle has valid and effective driving licence at the time of accident. It was further argued that the Driving Licence of the DLA was issued from RTO, Farukabad (U.P.) and he was resident of District Sangrur in Punjab, therefore, the driving licence held by the DLA was fake. Information was sought under RTI Act from the Licensing Authority but it did not give any reply to the same. As such, the Driving Licence is presumed to be not existing in the record of said registering authority. The claim has rightly been repudiated, vide letter dated 14.7.2014, Ex.OP-2/1, for the reasons First Appeal No.781 of 2016 6 mentioned in the said letter. It is further argued that there is delay in reporting the matter to the insurance agency, which is a violation of the terms and conditions of the Agreement. The claim of the complainants was repudiated on the ground that there was breach of condition No.1 and driver's clause of the terms and conditions of the policy. In support of his submissions he relied upon following judgments:-
i) Judgment dated 3.9.2015 passed by Hon'ble National Commission in Revision Petition No.2554 of 2012 (Bajaj Allianz General Insurance Co. Ltd. v. Kalluri Seethalakshmi & Ors.);
ii) Judgment of Hon'ble National Commission dated 16.9.2013 passed in Revision Petition No.3266 of 2008 (Bajaj Allianz General Insurance Co. Ltd. v. Mrs. R. Suguna);
iii) Judgment dated 21.2.2017 passed by Hon'ble Punjab and Haryana High Court in FAO No.8848 of 2014 (Paramjit Kaur and others v. Nahar Singh and others); and
iv) Judgment dated 16.5.2012 passed by Hon'ble Punjab and Haryana High Court in FAO No.3628 of 2011 (Future General India Insurance Co. Ltd. v. Smt. Birmati and others).
It was further argued that the District Forum failed to appreciate the facts on record and has made out a new case altogether which was neither pleaded nor proved by the complainants whatsoever. The First Appeal No.781 of 2016 7 order passed by the District Forum is totally illegal and against law and is liable to be set aside.
9. Per contra, it was vehemently argued by the learned counsel for the complainants that in the accident the DLA suffered multiple injuries and was hospitalized in Civil Hospital, Dhuri, Rajindra Hospital, Patiala and PGI, Chandigarh. If there was some delay in lodging the FIR and informing the opposite parties, the same was due to the hospitalization of the DLA. Complainant No.1 is widow and complainants Nos.2 and 3 are minors. Only bread earner of the family has been lost and the family was under shock. Delay cannot be fatal in every case. It depends upon facts of each case. As such, the delay is not intentional and the repudiation of their claim is illegal and without application of mind. The District Forum has passed a well reasoned order after properly appreciating the pleadings and the evidence on record. There is no merit in the present appeal and the same is liable to be dismissed.
Consideration of Contentions:
10. I have given my thoughtful consideration to the contentions raised by the learned counsel for both the sides.
11. Admittedly the DLA got insured his motorcycle bearing registration No.PB-13-AD-4632 comprehensively from opposite party No.2 and the DLA was also insured for ₹1,00,000/- in case of accidental death under Cover Note No.31694773 for the period from 10.9.2012 to 9.9.2013 as is evident from the copy of Cover Note, Ex.C-3. It is also admitted that on 26.7.2013 when the DLA was coming on the said motorcycle from Dhuri to his village, he met with First Appeal No.781 of 2016 8 an accident with the above said truck and received multiple injuries. It is also admitted that after the accident the DLA was taken to Civil Hospital, Dhuri, from where he was referred to Rajindra Hospital, Patiala and then to PGI, Chandigarh, where he succumbed to his injuries on 27.8.2013.
12. So far as the delay is concerned, it is mentioned in the reply that there was delay of 82 days. Admittedly the accident took place on 26.7.2013 and the intimation was given to opposite party No.2 on 16.10.2013. It is correct that there was delay of 82 days from the date of accident but since the DLA died on 27.8.2013, therefore, there was delay of 49 days from the date of death of the DLA. In fact the delay is to be taken into consideration from the date of death of the DLA. After the accident the DLA was taken to Civil Hospital, Dhuri. Thereafter he was admitted in Rajindra Hospital, Patiala and then referred to PGI, Chandigarh, where he ultimately died on 27.8.2013. Thereafter the intimation was given to opposite party No.2 on 16.10.2013. It was within 49 days of the date of death. That cannot be treated as 82 days delay. The first and foremost duty of the heirs of the DLA was to save his life and they should not go after the intimation. Otherwise also once death occurred, the family remains in shock. Moreover, the delay is not material specifically when the family lost the only bread earner and the complainants are widow and minor children. They are not litigates. As such, I do not find that there is merit in the contention with regard to the delay.
First Appeal No.781 of 2016 9
13. So far as the non-furnishing of Post Mortem Report of the DLA is concerned, although the same was not conducted at any of the Hospitals but the fact remains that the cause of the death of the DLA was accident, which has not been denied by the opposite parties. Rather the Surveyor in his Survey Report states that the matter was settled for full and final payment of ₹14,000/- on account of loss to the motorcycle in the accident. Therefore, once opposite parties admitted the claim of the complainants at ₹14,000/- in full and final settlement, they cannot agitate these objections i.e. delay in reporting the mater and non-providing of post mortem report.
14. It was held by this Commission in "Parkash Kaur & others v. ICICI Lombard General Insurance Company & another" 2009(1) CLT 74, which was a case of death due to snake bite, that the claim cannot be repudiated simply on the ground that the post mortem report or police report is not proved despite the fact that the snake bite or accident is proved by other evidence. Similarly, this Commission in "Manager, Health Administrator Team, Bajaj Allianz General Insurance Co. Limited v. Ravinder Kaur & Ors." 2012 (1) CPC 100 held that where the insured died due to inhaling of insecticide the claim cannot be repudiated on the ground that the FIR was not filed and that the post mortem examination was not conducted.
15. So far as the contention that the driving licence was issued from Farukabad, U.P. is concerned, admittedly no document has been brought on record. The opposite parties are relying upon the information sought under the RTI Act to which no reply was received First Appeal No.781 of 2016 10 from the Registering Authority and the same was taken as a presumption of non-existence of driving licence of the DLA at that place of registration. Identical issue arose before me in Reference No.01 of 2017 in First Appeal No.815 of 2016 decided on 2.6.2017 (United India Insurance Company Limited v. Munish Kumar Bansal and another) in which I came to the conclusion that if the record of the driving licence is not available/traceable, then presumption cannot be raised that no licence was issued. Burden was upon the Insurance Company to prove that such a licence was never issued to the deceased driver. In view of this law laid down in the said case I am of the view that this objection is not maintainable. Virtually there is no evidence on record to indicate that there was no valid licence issued in favour of the DLA. Therefore, the judgments relied upon by the learned counsel for the appellant/opposite party No.2 are not applicable to the facts of the present case. In these circumstances I am of the view that the District Forum has rightly directed opposite party No.2 to pay the insurance claim to the complainants.
16. In this view of the matter, there is no merit in the present appeal and the same is hereby dismissed.
17. The appellant/opposite party No.2 had deposited a sum of ₹25,000/- at the time of filing of the appeal on 13.10.2016. It further deposited a sum of ₹57,352/- on 8.12.2016 in pursuance of order dated 25.10.2016. Both these amounts, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified First Appeal No.781 of 2016 11 copy of the order to the parties. The complainants may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
18. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT August 14, 2017 Bansal