National Consumer Disputes Redressal
United India Insurance Co. Ltd. & Anr. vs Pushpa Devi Mantri on 8 February, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2681 OF 2011 (Against the Order dated 28/04/2011 in Appeal No. 51/2006 of the State Commission Punjab) 1. UNITED INDIA INSURANCE CO. LTD. & ANR. At regional Office- 1, Kanchanjangha Building, 18, Barakhamba Roiad, New Delhi - 110001 2. United India Insurence Co.Ltd Divisional Office nO- 3, Near Income Tax Circle, Ashram Road Ahmedabad ...........Petitioner(s) Versus 1. PUSHPA DEVI MANTRI WD/O SH. OM PRAKASH MANTRI R/o 403, Model Twon, Phase-1, Bathinda Punjab 2. Sanjay Mantri ,S/o Om Prakash Mantri r/o 403, Model Town, Phase - I Bathinda Punjab 3. Vijay Mantri, S/o Om Prakash Mantri R/o A -203 Salarapuri Splendor, No -20,, Nanja Colony, Opp Airport Road bangalore Karnataka ...........Respondent(s)
BEFORE: HON'BLE DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. PREM NARAIN,MEMBER For the Petitioner : Mr. A.K.De, Advocate with Ms. Ananya De, Advocate For the Respondent : Mr. Ashish Bansal, Advocate with Mr. Shubhankar Jha, Advocate Dated : 08 Feb 2017 ORDER
1. This Revision Petition has been filed under Section 21(b) of the Consumer Protection Act,1986 against the impugned order dated 28.4.2011, passed by the Punjab State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in First Appeal No.51 of 2006. By the impugned order, the order dated 13.12.2005 passed by the District Consumer Disputes Redressal Forum, Bhathinda, Punjab (hereinafter referred to as 'the District Forum') in Complaint Case No.247/2005 has been partly modified, directing the O.Ps. to pay the insurance amount of Rs.1,00,000/-plus other benefits permissible under the insurance policy along with an interest at the rate of 9% per annum from the date of filing of the complaint till the date of payment and cost of Rs.10,000/-.
2. The brief facts of the case at hand are that Om Parkash Mantri (now deceased; hereinafter referred to as the insured), husband of complainant No.1 and father of complainant Nos. 2& 3, got his vehicle bearing Registration No. GJ-1HF- 8713 insured with the opposite party No.2/ the petitioner Insurance Company. The Policy (Policy No. 06030300/31/04/03445) was valid for a period from 02.06.2004 to 01.06.2005 for insured declared value (IDV) of Rs. 4,49,959/-. In addition, the insured had also got himself insured for an amount of Rs.2,00,000/- against the accident and paid extra premium of Rs.100/-; he also got five unnamed passengers insured for an amount of Rs. 1,00,000/- each and paid a premium of Rs.250/- for the same. On 20.11.2004. The insured vehicle was driven by someone else when it met with an accident resulting in the death of the insured who was also a passenger in the vehicle. FIR No.227 was registered on the very same day with the Police of PS-Gudda Andla, District Pali. On 29.12.2004, the respondent no.1 herein lodged claim for the vehicle insured with the opposite party No.2. Although, the claim for the vehicle was settled, the opposite party No.2 rejected the claim for the insured vide letter dated 16.06.2005 on the ground that insured did not possess a valid and effective driving license to be considered as a owner-driver for the purpose of the insurance policy.
3. Aggrieved by the action of the O.Ps, the Complainant approached the District Forum and filed complaint No. CC/247/2005, which was dismissed vide order dated 13.12.2005 holding that the insured was not entitled to any insurance claim either as an owner-driver or an unnamed passenger.
4. Aggrieved by the said order of the District Forum, the complainants preferred an appeal before the State Commission. The Commission vide order dated 28.4.2011 partly accepted the appeal. It held that the insured was entitled to an insurance amount of Rs. 1,00,000/- plus other benefits permissible under the insurance policy for unnamed passenger(s) as he was one of the passengers in the car when the accident took place. The said amount is to be paid along with interest at the rate of 9% per annum from the date of filing the complaint till the date of payment. Cost of Rs.10,000/- was also awarded.
5. Aggrieved by the said order of the State Commission, the O.Ps. have approached this Commission by way of this revision petition.
6. Heard the learned counsel for the parties and perused record.
7. The learned counsel for the petitioners submitted that the State Commission has erroneously proceeded on the ground that the insured is covered under the category of unnamed passengers. Learned counsel stated that the State Commission failed to appreciate the Indian Motor Tariff-16 endorsement which provides for personal accident cover to unnamed passengers and specifically excludes the insured, paid driver and cleaner.
8. The learned counsel further submitted that the personal accident cover for the owner-driver is available to owner of the vehicle only when he possesses a valid and effective driving license as provided under General Regulation 36 of the India Motor Tariff.
9. The learned counsel for the petitioner has also cited the following judgements in support of his arguments.
(i) United India Insurance Company Limited Vs. Sri Siddanna Nimbanna Jawali and Another, (2001) 1 KCCR 648 wherein the following has been observed:-
"I have heard the learned Counsel for the parties and gone through the impugned order. In the impugned order, the Tribunal has noticed that the owner of the vehicle is not debarred from travelling in his own car. If some unfortunate event happens the owner cannot be denied the compensation. In this view of the matter, the Tribunal has fastened the liability on the insurance company. To understand the policy one has to refer to the very policy itself. The said policy provides for certain terms, exceptions and conditions. Section 1 deals with loss or damage. Section 2 deals with liability to third parties. General exceptions and Bonus Ma-lus clause is also provided. The endorsements in IMT 5 deal with accidents to unnamed passengers other than the insured and his paid driver or cleaner. Clause 1 of Section 2 no doubt deals with death or bodily injury to any person including occupants carrier' in the motor car. It is the argument of the respondent that the owner is also an occupant of the motor car and therefore he is entitled for compensation. The said argument though at the first blush is very attractive but on deeper consideration it cannot be accepted for the simple reason that Section 2 deals with liability to third parties and third parties cannot be said to include the owner as well. The word 'occupant' is referable to the third party. Moreover the endorsement IMT 5 categorically states that in consideration of the payment of an additional premium it is hereby understood and agreed that the company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger other than the insured and/or his paid driver, attendant or cleaner and/or a person in the employment of the insured coming within the scope of the Workmen's Compensation Act. Even otherwise, the policy is between the insured and the insurance company, unless and otherwise a specific clause is provided for coverage of the insured also nothing can be read into a policy thereby widening the very conditions and applicability of the policy. Therefore from the reading of the very policy it is clear to me that the insured owner cannot said to be a person covered by this policy. In these circumstances, I am of the view that the finding of the learned Judge is unsustainable".
(ii) Dr. S. Jayaram Shetty v. National Insurance Company Limited, (2002) 3 KCCR 1636 with the following view:-
"15. That leaves us with the alternative submission made by Mr. Shankar that since the occupants of the private car owned by the appellant were themselves insured against death or personal injury, there is no reason why the owner, who is also one of such occupants at the time of the accident could not be deemed to be similarly covered for payment of compensation. The argument must fail for two reasons. Firstly, because the occupants of a private car are covered in terms of Endorsement 5 to the policy, which reads as under.--
"Accidents to unnamed passengers other than the insured and his paid driver or cleaner (private cars only):
In consideration of the payment of an additional premium it is hereby understood and agreed that the Company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger other than the insured and/or his paid driver, attendant or cleaner and/or a person in the employ of the insured coming within the scope of the Workmen's Compensation Act, 1923, and subsequent amendments of the said Act and engaged in and upon the service of the insured at the time such injury is sustained whilst mounting or dismounting from or travelling in the motor car and caused by violent accidental external and visible means which independently of any other cause shall within three calendar months of the occurrence of such injury result in".
16. It is evident from the above that while passengers travelling in a private car, are covered against death or bodily injury resulting from the accident involving the vehicle, the insurance cover qua the insured is specifically excluded. The insurance cover provided to the occupants, it is noteworthy, does not flow from the provisions of Section 147 of the Act. It on the contrary flows from the wider cover, which the insured has secured beyond the minimum prescribed under Section 147 by paying an additional premium. In case the insured obtains such a wider cover under the terms of the policy, the Insurance Company will be liable to undertake the liability. What is however clear is that the liability to compensate the occupant injured in any such event will flow not from the requirements of Section 147, but on the terms of the policy issued to the insured. The legal position in this connection is no longer res integra having been authoritatively settled by the Supreme Court in Amrit Lal Sood and Anr. Vs. Smt. Kaushalya Devi Thapar and Ors., [1998]2SCR284 where the Court observed.--
"Section 95 requires a policy to cover the risk to passengers who are not carried for hire or reward. The statutory insurance does not cover injury suffered by occupants of the vehicle who are not carried for hire or reward and the insurer cannot be held liable under the Act. But that does not prevent an insurer from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute whereby the risk to gratuitous passengers could also be covered. In such cases where the policy is not merely a statutory policy, the terms of the policy have to be considered to determine the liability of the insurer""
10. The learned counsel for the respondents submitted that the O.P. No.2 has issued a letter dated 16.02.2005 whereby the Company illegally repudiated the claim of Rs.2,00,000/- on the ground that the insured did not possess the driving license to be considered for risk coverage under the category of owner-driver. He submitted that the insured was not driving the insured vehicle at the time of accident and hence it cannot be insisted that he should possess the driving license while travelling as a passenger in the insured vehicle. He also stated that since the insured was a passenger at the time of accident, he is entitled to risk coverage under the category of unnamed passenger.
11. The learned counsel for the respondents has also cited the following judgement in support of his arguments:-
National Insurance Co. Ltd. v. Krishnan and Another IV(2014)ACC510(Mad.) wherein the following has been opined:-:-
"25. A owner may travel in a vehicle, either driving the vehicle or as an occupant. He has taken a policy to cover himself for the bodily injuries or death, due to an accident, arising out of and use of the vehicle. The policy is to cover him in both the capacities, either as a owner of the vehicle or as a driver. Merely because, at the time of accident, he did not drive the vehicle, it cannot be contended that the contract of insurance cannot be extended to cover the owner of the vehicle. When he travels in the vehicle, not actually driving the vehicle, but as an occupant, there is no alteration in his status, as the owner of the vehicle. The performance of an act, i.e., driving the vehicle, alone is not the criteria, to determine the enforceability of the contract of Insurance. So long as there is a payment of additional premium for the owner cum driver and during the period of validity, an accident has occurred, the policy would cover the owner also, even if he was not on the wheels, at the time of accident. The expression "owner cum driver" cannot be split up to narrow down the enforceability of the policy to the driver only, if he is also the owner of the vehicle. When an occupant in the vehicle is covered by the judgment in National Insurance Co. Ltd. v. Balakrishnan (supra), then the owner of the vehicle, who travelled in the offending vehicle, as an occupant, is also entitled to seek for just compensation, when the vehicle is covered by a comprehensive/package policy. If the policy is comprehensive/package policy and when additional premium has been paid to cover any loss, then the Insurance Company is liable to pay compensation.
26. An occupant in a vehicle, may include all the persons, including the owner. When there are different kinds of policies, for the owner-cum-driver, employee, unnamed passengers, etc., for which, different rates of premium is prescribed under the Indian Motor Tariff, it cannot be contended that the claim for compensation is maintainable, only when the owner is on the wheels and not when he travelled in the vehicle, as an occupant. In the light of the decisions, stated supra, this Court is of the view that the respondent is entitled to maintain a claim for compensation, against the insurer alone".
12. We have carefully considered the arguments advanced by the learned counsel for the parties and thoroughly examined the record. It is beyond doubt that the insurance coverage is obtained for the categories of owner-driver and five unnamed passengers to the extent of Rs.2,00,000/- and Rs.1,00,000/- respectively. It is not disputed that the insured was the owner of the insured vehicle. Both the parties agree on the fact that the insured vehicle was driven by a third person and the insured was travelling as a passenger at the time of accident. The IMT Endorsement Nos. 7, 16, 22, 24 and 28 are mentioned on the Policy. The claim for the insured vehicle has already been settled. The claim for the insured is the subject matter of this revision petition. The main question that needs to be answered in the present case is whether the insured owner is entitled to any risk coverage or compensation under the policy.
13. To find the answer to the aforesaid question, it is relevant to refer to the Indian Motor Tariff framed by the Tariff Advisory Committee for regulating motor insurance in India. IMT 16 dealing with personal accident cover to unnamed passengers other than insured and the paid driver and cleaner assumes significance in the present case. It provides as follows:
IMT.16. PERSONAL ACCIDENT TO UNNAMED PASSENGERS OTHER THAN INSURED AND THE PAID DRIVER AND CLEANER { For vehicles rated as Private cars and Motorised two wheelers (not for hire or reward) with or without side car} In consideration of the payment of an additional premium it is hereby understood and agreed that the insurer undertakes to pay compensation on the scale provided below for bodily injuries hereinafter defined sustained by any passenger other than the insured and/or the paid driver attendant or cleaner and/or a person in the employ of the insured coming within the scope of the Workmen's Compensation Act, 1923 and subsequent amendments of the said Act and engaged in and upon the service of the insured at the time such injury is sustained whilst mounting into, dismounting from or traveling in but not driving the insured motor car and caused by violent, accidental, external and visible means which independently of any other cause shall within three calendar months of the occurrence of such injury result in :
Details of Injury Scale of Compensation Death 100% Loss of two limbs or sight of two eyes or one limb and sight of one eye 100% Loss of one limb or sight of one eye 50% Permanent Total Disablement from injuries other than named above 100%
14. A perusal of this provision shows that the insured and/or the paid driver attendant or cleaner and/or a person in the employment of the insured are expressly excluded from the category of unnamed passengers. In the light of this provision, we find it difficult to uphold the order of the State Commission wherein it has been held that the insured is entitled to the insurance amount under the category of the unnamed passenger. In other words, the insured is not entitled to compensation under the category of unnamed passenger in light of the express exclusion to that effect under IMT 16.
15. We have also perused Section 6 of the Indian Motor Tariff which deals with personal accident cover for owner-driver. A simple reading of this section reveals that the following three conditions are attached to the cover:-
(a) the owner-driver is the registered owner of the vehicle insured herein;
(b) the owner-driver is the insured named in this policy.
(c) the owner-driver holds an effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of the accident.
The condition (c) assumes profound significance in the present case. It is unclear whether the insured was holding an effective driving license at the time of accident. The respondents have failed to produce any evidence to show that the insured was a holder of an effective driving license at the relevant point of time. In the absence of the same, we find it difficult to hold that the insured is entitled to the insurance amount under the category of owner-driver.
16. At this point, we find it relevant to refer to General Regulation 36 of the Indian Motor Tariff. GR. 36 states as follows:
"GR.36. Personal Accident (PA) Cover under Motor Policy (not applicable to vehicles covered under Section E, F and G of Tariff for Commercial Vehicles) A. Compulsory Personal Accident Cover for Owner-Driver Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package policies. The owner of insured vehicle holding an "effective‟ driving license is termed as Owner-Driver for the purposes of this section.
Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/ dismounting from or traveling in the insured vehicle as a co-driver.
NB. This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/she holds an effective driving license. Hence compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner-driver does not hold an effective driving license. In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner - driver should not be charged and the compulsory P. A. cover provision in the policy should also be deleted. Where the owner-driver owns more than one vehicle, compulsory PA cover can be granted for only one vehicle as opted by him/her."
17. The Nota Bene appended to the aforesaid Regulation unambiguously clarifies that Personal Accident cover for owner-driver can be granted when the registered owner holds an effective driving license. In the present case, the insured was granted Personal Accident cover to the extent of Rs.2,00,000/- under the category of owner-driver. It is the case of the petitioners that the insured did not possess an effective driving license and hence not entitled to the claim. If that be so, they ought not to have issued the Personal Accident cover for owner-driver in the first place by accepting an extra premium for the said purpose. In other words, if they knew that the insured did not possess an effective driving license, they should have declined the request for personal accident cover for the insured under the category of owner-driver so that the owner of the car may have taken some other IMT endorsement like IMT 15 which covers the owner independently. Having failed to do so renders the petitioners squarely liable for deficiency of service.
18. Based on the above examination, we are of the view that the insurance claim in the present case cannot be allowed under the category of owner-driver or under the clause relating to unnamed persons. Therefore, impugned order of the State Commission cannot be sustained. However, on the other hand, we have also found in the previous para that the petitioner Insurance Company has been deficient in terms of GR 36 so far as it relates to issuance of the package insurance policy with risk coverage of owner-driver without ensuring the availability of an effective driving license with the insured. This has denied the opportunity to the insured of having some other personal policy ensuring him as the owner. The family members of the insured are thus entitled to get some compensation for this deficiency of the Insurance Company. As the compensation for death of an unnamed passenger is Rs.100,000/- in the policy, we do not find any reason for awarding less compensation than this amount for the death of the insured. We also cannot allow the full amount of Rs.200,000/- because the validity of driving license at the time of accident cannot be presumed and no party has come up with any evidence in this regard. In these circumstances, we deem it appropriate if compensation of Rs.100,000/- is awarded to the complainants for the deficiency on the part of the petitioner Insurance Company.
19. On the basis of the above discussion, the petitioner Insurance Company is directed to pay Rs.100,000/- (Rupees One Lakh only) to the complainants along with interest @7% p.a. from the date of order of the District Forum i.e. from 13.12.2005 till actual payment. This order be complied within a period of 45 days from the date of this order, failing which the Insurance Company shall be liable to pay interest @10% from the date of this order till actual payment.
20. The revision petition stands disposed of in terms of this order and order dated 28.04.2011 of the State Commission stands substituted by this order. No order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER