State Consumer Disputes Redressal Commission
United India Insurance Company Ltd. vs Jagdish Rai & Anr. on 12 March, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.640 of 2022
Date of institution : 01.08.2022
Reserved on : 22.02.2024
Date of decision : 12.03.2024
United India Insurance Co. Ltd., Divisional Office, The Mall, Bathinda,
through Sr. Divisional Manager through its regional office i.e. United
India Insurance Company Limited, Legal Department, 108, Surya
Towers, 3rd Floor, Mall Road, Ludhiana 141001 through Ms.Rekha
Mathur, Manager United India Insurance Company.
.....Appellant/Opposite Party
Versus
1. Jagdish Rai S/o Sh. Tarsem Chand, aged about 53 years;
2. Lata Bansal W/o Sh. Jagdish Rai S/o Sh. Tarsem Chand aged
about 15 years.
Both residents of # 31683, Street No.3, Paras Ram Nagar,
Bathinda
....Respondents/Complainants
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 08.02.2022 of the District
Consumer Disputes Redressal Commission,
Bathinda passed in CC/26/2018.
Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Argued by:-
For the appellant : Sh. Munish Goel, advocate
For respondents : Sh. Nishant Sidhu, Proxy cl. for
Sh.Deepak Gupta, Advocate
KIRAN SIBAL, MEMBER
The instant appeal has been filed by the appellant/opposite party against the impugned order dated 08.02.2022, passed by District FA No.640 of 2022 2 Consumer Disputes Redressal Commission, Bathinda (in short, "the District Commission"), whereby the complaint filed by complainants against opposite party (in short 'OP'), under the Consumer Protection Act, was partly allowed and the following relief has been granted:
"24. In view of what has been discussed above, this complaint is partly allowed against the opposite party with Rs.10,000/- as cost and compensation. The opposite party is directed to pay Rs.2,00,000/- with interest @9 % p.a. from the date of repudiation of claim i.e. 27.01.2016 till payment to complainant No.2 (being 1st class legal heir of deceased."
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Brief facts for the disposal of the appeal are that the complainant No.1 was owner in possession of one Balero Jeep bearing registration No.PB-03AC-7030. The said vehicle was got insured with OP vide policy No.2004004114P109823652 for the period from 27.02.2015 to 26.02.2016 for Insured Declared Value of Rs.5,40,000/-. Complainant No.1 also paid an amount of Rs.17,721/- as insurance premium, which included Rs.100/- for compulsory PA for Owner Driver for Rs.1 lakh each totaling Rs.2 lakh, Rs.600/- for PA for unnamed persons and Rs.50/- LL to paid Driver IMT 28 for Rs.1 lakh. Unfortunately on 05.08.2015, when the son of complainants; namely, Gaurav Bansal was returning to his house from his sister's house by driving the insured vehicle, an another vehicle i.e. Mahindra Xylo bearing Registration No. PB-03AC/4464, came from opposite side and struck with the insured vehicle. In the said accident the son of the complainants died an intimation with regard to the accident was given to police authorities, who have only recorded DDR No.20(A) dated FA No.640 of 2022 3 06.08.2015. Thereafter, claim was lodged by the complainants with the OP regarding death of their son in the said accident while driving the insured vehicle. The complainants also completed all the requisite formalities as required by the OP, who assured that the claim would be settled at the earliest. But the OP, vide letter dated 27.01.2016, repudiated the claim of the complainants on flimsy grounds that the son of the complainants was not covered under the personal accident coverage of the policy. The complainants again approached the OP and requested to reconsider the claim of the complainants, but to no effect. Alleging deficiency in service on the part of the OP, the complainants filed a consumer complaint before the District Commission and sought directions against the OP to pay the death claim amount to the tune of Rs.2,00,000/- along with interest @ 18 % p.a. and further to pay Rs.50,000/- as compensation for mental tension, agony and loss of physical health and Rs.11,000/- as costs of litigation.
4. Upon notice, the OP appeared and contested the complaint by filing the written reply, wherein it raised certain preliminary objections, which are not required to be reproduced here for the sake of brevity. On merits, the OP admitted that as per Registration certificate complainant No.1 was recorded as owner of one Balero which was insured with opposite party for the period 27-2-2015 to 26-2-2016 subject to terms and conditions of the policy. As per the policy the compulsory Personal Accident (PA) for owner driver and un-named passenger for Rs.2,00,000/- was covered under IMT-28. The OP further stated that the claim of the complainants was rejected only after duly considering the records and also scrutinizing the documents, rules and FA No.640 of 2022 4 regulations applicable in this case by the competent authorities of opposite party. As per terms and conditions of the insurance policy, the opposite party, is liable to pay Rs.2,00,000/- on account of death of owner driver or un-named passenger other than insured in Motor Vehicle Accident, but neither the deceased was owner of the vehicle in question nor was an un-named passenger. The deceased was son of complainants and was driving the vehicle himself, hence was not paid driver. Moreover, the story of accident in question mentioned in the claim form is altogether different from police version. The complainants could not be allowed to shift from their plea/stand already taken in FIR and also in claim form. The claim case was duly scrutinized & considered, but it was declared as No Claim vide letter dated 27.01.2016. The claim of the complainants has been rightly rejected as per terms and conditions of the policy. There is no deficiency in service or unfair trade practice on the part of opposite party. After denying the other averments made in the complaint, the OP prayed for dismissal of the complaint.
5. The parties led their evidence before the District Commission in respect of their respective contentions. The District Commission after going through the record and hearing learned counsel for the parties, partly allowed the complaint of the complainants, vide impugned order as above. Aggrieved with the same, present appeal has been filed by the appellant /OP.
FA No.640 of 2022 5
6. We have heard learned counsel for the parties and have also gone through the written arguments submitted by them and record of the case.
7. Learned counsel for the appellant/OP vehemently contended that the District Commission has failed to appreciate the fact that the complaint has not been filed within limitation as the son of the complainants died in an accident on 05.08.2015, whereas the complaint was filed on 25.01.2018, therefore, the same was barred by limitation. The learned counsel has further contended that the deceased was married and his wife had not been impleaded as necessary party being his legal heir, therefore the complaint was not maintainable on account of non-joinder of necessary party. The District Commission while partly allowing the complaint, has failed to take into consideration that as per the terms and conditions of the insurance policy, the appellant is liable to pay Rs.2 lakhs on account of death of owner, driver or unnamed passengers only but in the present case the deceased was neither the owner nor the paid driver or unnamed passenger. The son of the complainants was only a borrower of vehicle from his father and had driven the said vehicle, therefore the claim is not admissible as per the terms and condition of the policy. The learned counsel further argued on the similar lines as stated in the written reply and prayed for acceptance of the present appeal.
8. On the other hand the learned counsel for respondents/complainants has contended that there is no perversity and illegality in the impugned order passed by the District Commission. The detailed finding of facts has already been recorded by the District FA No.640 of 2022 6 Commission while rejecting the stand of the appellant/OP and has duly placed reliance upon the judgment in the case titled "New India Assurance Co. Ltd. Vs. Umesh Kumari and others, 2011(2) ACJ 890. The learned counsel further argued that the vehicle in question was comprehensively insured, which also covers the risk of Compulsory PA for Owner Driver, which also find mention the name of Gaurave Bansal being son of complainant, who was driving the vehicle at the time of accident. The learned counsel further argued on the similar lines as stated in the complaint filed before the District Commission and prayed for dismissal of the present appeal.
9. We have given thoughtful consideration to the contentions raised by the parties.
10. Admitted facts of the case are that the vehicle in question was insured, vide insurance policy No.2004004114P109823652 for the period from 27.02.2015 to 26.02.2016, Ex. C-2. It is also not in dispute that compulsory Personal Accident for owner driver and unnamed passengers was covered under the policy and the vehicle in question met with an accident during subsistence of the policy period. The son of the complainants; namely, Gaurav Bansal, who was driving the insured vehicle died in the said accident and respondents/complainants lodged death claim under the policy in question with the appellant/OP. However, the appellant/OP failed to settle the claim and rejected the same, vide repudiation letter dated 27.01.2016, Ex. C-1, on the ground that at the time of accident, the deceased Gaurav Bansal was driving the vehicle, who was neither a paid driver nor as a passenger at that time, whereas, the personal accident coverage as per policy is covered FA No.640 of 2022 7 for Owner Driver and Unnamed persons. Alleging deficiency in service, the respondents/complainants filed a consumer complaint before the District Commission, which has been partly allowed vide impugned order as above. Aggrieved by the same the appellant/OP has filed the present appeal.
11. One of the ground raised by the appellant/OP in the present appeal is that the District Commission has illegally allowed the complaint without taking into consideration that the complaint has not been filed within limitation period as the son of the complainants had died in the accident on 05.08.2015, whereas the complaint was filed on 25.01.2018, as such, it was barred by limitation. There is no dispute with regard to the date of accident however it is pertinent to mention here that the OPs, vide their letter dated 27.01.2016, Ex. C-1, rejected the claim of the complainants. The cause of action in the present case would accrue on the date of rejecting the claim of the complainant i.e. 27.01.2016. Accordingly, the period of limitation of 2 years was to be counted from the said date and the same expired on 26.01.2018. The complaint was filed on 25.01.2018, as such the same was filed within the period of limitation. Hence, we do not find force in the contention raised by the learned counsel for the appellant/OP and the same is hereby rejected.
12. Another plea taken by the appellant/OP is that as per its knowledge and information, the deceased was married and his wife has not been impleaded as necessary party in the complaint, but was filed by his parents, therefore, the complaint was not maintainable on FA No.640 of 2022 8 account of non-joinder of necessary parties. This plea of the appellant/OP has no bearing at all as it failed to prove on record by leading any cogent evidence that deceased Gaurav Bansal was married. Moreover, from the perusal of Ex.OP1/6 & OP1/9 i.e. cross examination of the complainants before the Motor Accident Claims Tribunal, Bathinda, wherein it has been specifically deposed by the complainants that their son was unmarried. Accordingly, without establishing the fact that the deceased was married, the question of impleading his wife as necessary party does not arise. Accordingly, we do not find any force in the contention raised by the appellant/OP and the same is also rejected.
13. Further contention raised by the appellant/OP is that the story of accident in question mentioned in the claim form is altogether different from police version and respondents/complainants could not be allowed to shift from their plea/stand already taken in FIR and also in claim form. The said point has already been dealt with by the District Commission and we are in agreement with the observation of the District Commission. The relevant part of the impugned order is reproduced as under:-
"23. So far as the plea of the opposite party that story of accident in question now pleaded is altogether different from police version and also from as mentioned in claim form, is concerned, is of no value as admittedly vehicle in question comprehensively insured which also covers risk of Compulsory PA for owner driver which also finds mentioned name of Gaurav Bansal, being son of complainant, who was driving the vehicle at the time of accident and he died due to accident. This Commission should not succumb to niceties or technicalities in such matters and attempt should be to equate, as far as possible, with entitled relief......"FA No.640 of 2022 9
Accordingly, the said contention raised by the appellant/OP is hereby rejected.
14. Now we proceed to decide the main ground of appeal raised by the appellant/OP that as per terms and conditions of the insurance policy, the death claim of deceased Gaurav Bansal is not admissible as he was neither owner driver or unnamed passenger. To determine the said point, we have perused the pleadings and evidence placed on record by the parties. A perusal of insurance policy, Ex. C-2, shows that the vehicle in question was got insured under Private Car Package Policy and the insured paid an additional sum of Rs.100/- for Compulsory PA for Owner Driver. Further it has been specifically mentioned in the policy schedule under the heading "Persons or Classes of Persons entitled to drive" that 'Any person including Insured provided that a person hold an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learner's Licence may also drive the vehicle and such a person satisfied the requirements of Rule 3 of Central Motor Vehicle Rule, 1989". It is not in dispute that the son of the insured was driving the vehicle in question at the time of accident. However, it is not the case of the appellant/OP that the son of the insured, who died in the said accident, is not entitled to drive the vehicle and has violated the terms and conditions as mentioned above under heading "Persons or Classes of Persons entitled to drive" (Supra). The only ground raised by the appellant/OP in its repudiation letter dated 27.01.2016, Ex. C-1, is that the son of the complainants, who was driving the vehicle at the time of accident, was FA No.640 of 2022 10 neither a paid driver nor a passenger and the personal accident coverage as per policy is covered for Owner Driver and unnamed persons. However, it would be relevant to discuss here the requirements of policies and the limits of liability, stated in Section 147 of the Motor Vehicle Act. The Section 147(1)(b) of the Act, reads as under:
"147. Requirements of policies and limits of liability.--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-- ***
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required--
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation.--For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place."
FA No.640 of 2022 11
15. The provisions of the Motor Vehicle Act, therefore, provide for two types of insurance - one statutory in nature and the other contractual in nature. Whereas the insurance company is bound to compensate the owner or the driver of the motor vehicle in case any person dies or suffers injury as a result of an accident; in case involving owner of the vehicle or others are proposed to be covered, an additional premium is required to be paid for covering their life and property. It is an admitted fact that the insured has duly paid the additional premium for coverage of compulsory PA for Owner Driver. In the present case, the deceased was not the owner of the insured vehicle. However, he borrowed the vehicle from its real owner and he was authorized to drive the said vehicle by its owner. Therefore, he would step into the shoes of the owner of the insured vehicle. The appellant/OPs have failed to lead any cogent evidence to establish that the deceased was not competent to drive the vehicle in question and was negligent while driving the same. It appears that the appellant-insurance company is only trying to wriggle out from its liability to indemnify the complainants by bringing the case under hyper technical grounds. Accordingly, the complainants are entitled for claim amount on account of death of their son under the policy in question. The District Commission has also rightly observed in the impugned order, the relevant part of the same is reproduced as under:-
"20. A perusal of Insurance Policy in question Ex. C-2 reveals that at its page No.6 under Section III Personal Accident Cover for Owner Driver-name of Gaurav Bansal, son of complainant is specifically mentioned as nominee too. Therefore, denial of claim by the opposite party taking plea that Gaurav Bansal was neither paid driver nor passenger at the time of accident, amounts to gross FA No.640 of 2022 12 deficiency on the part of opposite party specifically when Gaurav Bansal, son of complainant was insured under PA being owner-driver, under the policy of vehicle in question.
21. Otherwise also, Hon'ble Punjab and Haryana High Court in the case titled New India Assurance Co. Ltd. Vs. Umesh Kumari and other 2011(2) ACJ 890 has held that:
"Comprehensive policy-Tort feaser- Liability to pay compensation- Premium towards compulsory PA to owner-cum-driver was paid- Deceased was the son of owner of the offending vehicle- he has stepped into the shoes of the owner by borrowing the vehicle with permission of the owner-Deceased cannot be treated as a third party- Deceased being son of the owner has to be terms as owner itself-Comprehensive policy would cover the claim of the claimant- The appellant Insurance Company is liable to pay compensation".
22. Therefore, in the case in hand also, deceased Gaurav Bansal, son of the complainant stepped into the shoes of the owner/complainant No.1 and he being son of the owner/complainant No.1 has to be termed as owner itself."
16. Sequel to our above discussion, we find that the District Commission has rightly decided the case and there is no material infirmity and irregularity in the order of the District Commission. Finding no merit in this appeal filed by the appellant/OP, the same is hereby dismissed & the order of the District Commission is upheld.
17. The appellant had deposited a sum of Rs.25,000/- at the time of filing of the appeal and it further deposited an amount of Rs.1,51,601/- in compliance of order dated 03.08.2022 passed by this commission. These amounts alongwith interest, which has accrued thereon, if any, shall be remitted by the registry to the District Commission forthwith. The respondents/complainants may approach the District Commission for the release of the above amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law. FA No.640 of 2022 13
18. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S. MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER March 12, 2024 (Dv)