National Consumer Disputes Redressal
Sunita Devi & 3 Ors. vs Oriental Insurance Co. Ltd. on 29 April, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1408 OF 2015 (Against the Order dated 12/02/2015 in Appeal No. 1134/2012 of the State Commission Punjab) 1. SUNITA DEVI & 3 ORS. W/O LATE SH.AMRITPAL,
R/O H.NO-16,WARD NO-7,OLD SBI STREET ,MAUR MANDI DISTRIT : BATHINDA -151509 PUNJAB 2. ABHIJEET, S/O AMRIT PAL R/O H.NO-16,WARD NO-7,OLD SBI STREET ,MAUR MANDI DISTRIT : BATHINDA -151509 PUNJAB 3. SAURAV, S/O AMRIT PAL, R/O H.NO-16,WARD NO-7,OLD SBI STREET ,MAUR MANDI
DISTRIT : BATHINDA -151509 PUNJAB 4. GAURAN DEVI, W/O RAM SARUP (MOTHER) R/O H.NO-16,WARD NO-7,OLD SBI STREET ,MAUR MANDI
DISTRIT : BATHINDA -151509 PUNJAB ...........Petitioner(s) Versus 1. ORIENTAL INSURANCE CO. LTD. BANK BAZAR,
THROUGH ITS DIVISIONAL MANAGER, BATHINDA, -151001 PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MRS. M. SHREESHA, PRESIDING MEMBER
For the Petitioner : Mr. Navneet Kumar, Advocate as
Amicus curie For the Respondent : Mr. Rajesh K. Gupta, Advocate
Dated : 29 Apr 2016 ORDER
PRONOUNCED ON 29th APRIL, 2016
ORDER
M. SHREESHA, PRESIDING MEMBER Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), is to order dated 12.2.2015 in Appeal No. 1134 of 2012 passed by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh (for short "the State Commission"). By the impugned order, the State Commission confirmed the order of the District Forum, which had dismissed the Complaint on the ground that the Complaint is not maintainable.
2. The brief facts as set out in the Complaint are that the Complainants are the Class-I Legal Heirs of Amrit Pal, who is the registered owner of Maruti Alto Car. The said car was purchased from one Mr. Vijay Kumar in September, 2009 alongwith the Comprehensive Insurance Package Cover Note no. 993608 dated 9.10.2010. The registration of the said car was transferred in the name of Amrit Pal on 14.7.2011 with the DTO Bathinda. The IDV of the said car was Rs. 2,35,000/-. The Opposite Party covered Personal accident for a sum of Rs. 2 lakhs for registered owner cum driver under GR-36 of Indian Motor Tariff. The above said Insurance Cover Note was valid from 13.10.2010 to 12.10.2011. The Complainants pleaded that the Insurance Company had never supplied any Policy copy with the all terms and conditions to the insured. While so, the said car met with an accident on 24.7.2011, within 10 days from the date of transfer, and Amrit Pal, who is the registered owner-cum-driver and who was driving the said car, died in the accident. The case was also registered with the concerned Police Station on 24.7.2011. The Complainants pleaded that they had applied for the transfer of the insurance cover with all the details of the registration of the vehicle, the date of transfer of the vehicle, so that the insurer may make the necessary changes in his record and issue fresh certificate of insurance. The Complainants stated that transfer of package policy in the name of transferee can be done only on furnishing acceptable evidence of sale and a fresh proposal form duly filled in and signed. The old certificate of the insurance of the vehicle is required to be surrendered and a fee of Rs. 50/-is to be collected for issuance of fresh certificate in the name of the transferee. If for any other reason, the old certificate of insurance cannot be surrendered, a proper declaration to that effect is to be taken from the transferee before a new certificate of insurance is issued. The RC has been transferred on 14.7.2011 and the accident took place on 24.7.2011 within 10 days, as such, the accident took place within 14 days of the available grace period and as per GR-17 the insurance is deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of transfer.
3. The Complainants pleaded that it was only after the death of Amrit Pal that the Cover note was found and she came to know about the Personal Accident Coverage also and it was immediately informed to the first Opposite Party i.e. the Insurance Company vide letter dated 14.8.2011. On 16.8.2011 claim was lodged under GR 36 of Compulsory PA for a sum of Rs. 2 lakhs and all the required documents i.e. Insurance Cover Note, R.C., D.L., PMR, Death certificate, copy of Voter cards and DDR etc. were submitted. An Investigator, Mr. Kiranjit Singh Romana was appointed on 23.8.2011 and the Investigator had taken the necessary documents like Voter Card, Ration Card and also the signatures of Satpal Garg on some blank papers. Thereafter, the Complainants had written a registered letter dated 16.9.2011 to the Insurance Company seeking settlement of their claim. A reminder was sent on 3.2.2012, but there was no response. Hence, the Complaint seeking direction to the Opposite Party to settle the claim amount together with compensation, interest and costs.
4. The Opposite Party filed their written version stating that the Complainant had concealed material facts and that the vehicle in question must have been purchased by the deceased Amrit Pal prior to 14.7.2011 but there was no intimation to the Opposite Party for transfer of insurance in writing within 14 days from the date of transfer as per GR-17 read with Section 157 of Motor Vehicle Act. The Complainants had not intentionally disclosed the actual date of purchase of the said vehicle by way of affidavit or by filing any such document. They denied that the policy alongwith the terms and conditions were not supplied to the Complainants. The deceased Amrit Pal was supposed to intimate the Opposite Party in writing regarding transfer of the ownership within 14 days from the date of purchase of the vehicle and not from the date of transfer of registration certificate. They further pleaded that the Investigator had not obtained the signature of Sat Pal Gard on any blank paper. As per GR-17 of IMT read with Section 157 of Motor Vehicle Act, in case of transfer of ownership of the vehicle, the transferee shall apply within 14 days from the date of purchase in writing to the insurer with details of RC, date of transfer of vehicle and the date of insurance policy to enable the insurer to make necessary changes in his record and also a fee of Rs. 50/- is to be deposited for the transfer of insurance. They pleaded that though the registration certificate of the said car was transferred in the name of Amrit Pal on 14.7.2011, but upto the date of accident i.e. 24.7.2011, no intimation was given to the Opposite Party nor was the policy transferred in his name nor was any application filed.
5. Based on the evidence adduced, the District Forum held as follows:
"7. The complainants have filed the earlier complaint vide CC No. 540 dated 02.11.2011 decided on 11.1.2012, in this complaint the complainants have claimed for the accident of vehicle only and has never claimed for personal accident claim for the personal accident (P.A.). The complainants have filed two separate complaints, i.e. the present complaint and complaint bearing No. CC 540 of 2.11.2011 that has already been decided by this Forum. The complainants have specifically written in their complaint that when the belongings of the deceased Amritpal were searched, they found the cover note of the policy and found that the deceased had paid the premium towards the personal accident and had filed the second complaint vide CC No. 231 of 2012. In this complaint also the matter in dispute is that the insurance cover note is to be transferred within 14 days from the date of transfer of registration of the vehicle and this point was already decided in the previous complaint vide CC No. 540 of 2.11.2011 decided on 11.1.2012. The opposite party filed an appeal to the said complaint before the Hon'ble State Commission. The matter is stayed by the Hon'ble State Commission.
8. In both the complaints i.e. CC No. 540 of 02.11.2011 decided on 11.1.2012 and in CC No. 78 of 23.2.2012 the matter is same, the complaints are same, the opposite party is same and the insurance cover note also same. The complainants were well aware of the insurance cover note when they have filed the previous complaint i.e. the P.A. claim is also in existence. Why they have filed separate claim with opposite party and a separate complaint before this Forum, is not understandable at all.
9. The complainant cannot knock the door of this Forum again and again. He has filed two different complaints for two different claims in the same policy. Thus, the complaint is barred by res-judicata under Section 11 of Civil Procedure Code. The relevant portion of section 11 is reproduced:-
"Res-judicata - No court shall try and suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court".
10. Therefore, in view of what has been discussed above, the second complaint on the same cause of action is not maintainable. Thus, this complaint is dismissed without any order as to cost."
6. Aggrieved by the said order, the Complainants preferred FA No. 1134 of 2012 before the State Commission. The State Commission concurred with the finding of the District Forum and observed as follows:
"6. From conclusion of evidence and hearing the respective submissions of the counsel for the parties, we find that Sunita Devi one of the complainants in this case has filed consumer complainant No.540 of 2011 adjudicated on 11.01.2012 with regard to this very accident of the car in question against the OPs. This complaint was filed by Sunita Devi being legal heir of Amrit Pal against the OPs claiming compensation regarding his accidental death. A direction was issued in this complaint by the District Forum to transfer the ownership of the vehicle in the name of OP No.1 Oriental Insurance Company within 15 days from the date of receipt of the copy of the order, whereupon, OP No.1 would pay the claim amount of Rs.2,35,000/- within next 30 days from the date of transfer of ownership of vehicle, failing the awarded amount shall carry interest @9% p.a. We find that the District Forum had directed the Oriental Insurance Company to pay the claim amount of Rs.2,35,000/- to the complainant within 30 days, failing which amount shall carry interest @ 9% p.a. The matter has been finally disposed of and complainant was only directed to transfer the ownership of the vehicle in the name of OP No.1. We find that matter has already been finally adjudicated by the competent District Forum in this case with regard to the instant insurance claim case. The cause of action is identical of complaint No.540 of 2011, vide Ex.C-15 with the case in hand. The complainant has merely pleaded some other legal heirs in this complaint, who were also in existence when complaint No.540 of 2011 Ex.C-15, was filed. Even one legal heir can file the complaint against the insurer and the benefit thereof would inure to remaining legal heirs. The complainants are duty bound to transfer the ownership of the vehicle in the name of OP No.1 as already directed in order dated 11.01.2012, whereupon, OP No.1 will pay the claim of Rs.2,35,000/- regarding the accidental death of Amrit Pal from the date of transfer of ownership of the vehicle within 30 days period, failing which the amount shall carry interest @ 9% p.a. from the date of institution of complaint till actual payment. We find that matter had already been finally adjudicated by the competent District Forum and, hence, the instant appeal is barred by the principle of res judicata in this case.
In view of our above findings, the instant appeal is barred by the principle of res judicata and hence, it is not maintainable. The District Forum has correctly appreciated the controversy involved in this case and dismissed the complaint of the complainant. The instant appeal preferred by the complainant is not maintainable in as such as, the matter has already been finally decided in this case by the competent District Forum, vide order Ex.C-15 on the record. Resultantly, there is no merit in this appeal and the same is hereby dismissed because the order of the District Forum in the previous complaint has attained finality".
7. Dis-satisfied with this order, the Complainants preferred this Revision Petition.
8. Learned Amicus Curie arguing for the Petitioners/Complainants submitted that the view taken by the Fora below that the Complaint is barred by principle of res-judicata, is incorrect. Learned Amicus Curie submitted that the State Commission had observed that it was the same accident and the second claim is also arising from the same cause of action and dismissed the Appeal.
9. Learned counsel for the Respondent/Insurance Company drew our attention to Section 11 of the CPC wherein the principle of res-judicata is detailed as follows:
"Res-judicata - No court shall try and suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court".
10. The facts not in dispute are that that the Petitioners are the legal heirs of Amrit Pal, who died in a car accident on 24.7.2011. It is the case of the Revision Petitioners that the said car was comprehensively insured with the Respondent/Insurance Company vide Cover Note No. 993608 dated 9.10.2010, IDV being Rs. 2,35,000/- and Personal Accident cover being Rs. 2,00,000/- for registered owner/driver under GR-36 of India Motor Tariff.
11. The first case filed by the Complainant in CC 540 of 2011 was for the claim of Own Damage of Rs. 2,35,000/- and the District Forum vide order dated 11.1.2012 had directed the Insurance Company to pay the claim amount of Rs. 2,35,000/- within 30 days failing which the amount would attract interest @9% p.a. Thereafter, the Complainants preferred CC No. 78 of 2012, which is the subject matter in the instant Revision Petition pleading that the Personal Accident Cover in the Cover Note was noticed by the Complainants only subsequently and at a later stage and therefore, it led to a fresh cause of action against the Insurance Company necessitating the new Complaint. Since on the very face of record, the first claim was for own damage wherein the IDV of the vehicle was claimed and the second claim is for Personal Accident Cover which entitlement was brought to the knowledge of the Complainant only after the filing for settlement of the first claim, a fresh Complaint for the second claim was filed.
12. Therefore, viewed from any angle, the principle of res-judicata cannot be applied merely because both the claims arise from the same accident. The first claim amount was directed to be paid by the District Forum vide its order dated 11.1.2012. The District Forum, while adjudicating the first claim held that it is required under GR-17 that the transferee should apply within 14 days from the date of transfer and the registration certificate of the vehicle in question was transferred on 14.7.2011 and the vehicle met with an accident on 24.7.2011 which is within 10 days from the date of transfer. It is not in dispute that the owner/driver was driving the car and that this personal accident coverage is meant for registered owner in person, who holds an effective driving license and additional premium for compulsory PA is paid. In the instant case a brief perusal of the Cover Note shows that additional premium of Rs. 100/- was paid towards PA coverage for Rs. 2,00,000/-. The cover note reads as under:
Type of Vehicles Capital sum insured (Rs.) Premium (Rs.) Cover Motorized Two Wheelers 1 lakh 50/-
100% of CSI for Death, Loss of Two Limbs or sight of both eyes or one limb and sight of one eye etc....
Private Cars 2 lakhs 100/-
100% of CSI for Death, Loss of Two Limbs or sight of both eyes or one limb and sight of one eye.
50% of CSI for Loss of one Limb or sight of one eye.
100% for Permanent Total Disablement from injuries other than named above.
13. In their reply before the District Forum and in the repudiation letter, the only ground that was given for not settling the claim amount is that the vehicle was purchased prior to 14.7.2011 and that the date of accident was 24.7.2011 and that the Insurance Policy was not transferred. The onus is on the Insurance Company to establish that the vehicle was purchased much prior to 14.7.2011 but it has failed to discharge its onus. It is an admitted fact that the registration of the said vehicle was done on 14.7.2011 and owner-cum-transferee died in the accident which took place on 24.7.2011. It is apparent on the face of record that the accident had taken place within 10 days of the transfer of the said vehicle and as GR-17 stipulates 14 days grace period, the main ground on which the claim was repudiated, is unjustified.
14. The Complainant, who happens to be an illiterate widow, had specifically pleaded that the terms of the Policy were not furnished to her and that it was only on finding of the Cover Note, subsequent to the death of her husband, that she had come to know about the Personal Accident coverage. In principle, OP did not dispute that this benefit was not available. It does not behove of the Insurance Company to deny the legitimate claim on hyper technical ground when this benefit is admittedly covered. It is well settled law that the Insurance Company cannot travel beyond their grounds of repudiation and in the instant case, it is pertinent to note that the very same Respondent/Insurance Company had been directed by the District Forum to pay the first claim under 'Own Damage' amounting to IDV of the vehicle.
15. In the result, this Revision Petition is allowed, setting aside the orders of the lower Fora. The Respondent/Insurance Company is directed to pay the sum insured under the Personal Accident Coverage of Rs. 2 lakhs with interest @ 9% p.a. from the date of filing of the Complaint till the date of realisation together with costs of Rs. 5,000/- within four weeks from the date of receipt of this order, failing which the amount shall attract interest @ 9% p.a. from the date of filing of the Complaint till the date of realisation.
16. Before parting with the case, we place on record our appreciation for the valuable assistance rendered by Mr. Navneet Kumar, the learned Amicus Curiae. He may be paid a sum of Rs. 12,000/-, as out of pocket expenses, if not already paid, from Consumer Legal Aid Account for the assistance rendered by him to this Commission.
...................... M. SHREESHA PRESIDING MEMBER