State Consumer Disputes Redressal Commission
Icici Lombard General Insurance ... vs Smt. Aasma & Others on 12 August, 2024
First Appeal No. ICICI Lombard General Insurance Company Limited 12.08.2024
246 of 2022 Versus
Smt. Aasma and others
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
Date of Admission: 19.12.2022
Date of Final Hearing: 07.08.2024
Date of Pronouncement: 12.08.2024
FIRST APPEAL NO. 246 / 2022
ICICI Lombard General Insurance Company Limited
Registered Office at First Floor, Hosto Centre
No. 43, Millers Road, Basant Nagar, Bangalore - 560052
through its Regional Office at 3rd Floor, Sri Ram Arcade
Plot No. 74-A, Rajpur Road, District Dehradun
through its Authorised Signatory
5th Floor, Summit Building, B-503 to B-508
Plot No. TCS 3/3, Near Rohtas Plumeria, Vibhuti Khand
Gomti Nagar, Lucknow - 226016
(Through: Sh. Deepak Ahluwalia, Advocate)
...... Appellant
Versus
1. Smt. Aasma W/o late Nabid
2. Ms. Alka D/o late Nabid
3. Ms. Ajka D/o late Nabid
Nos. 2 & 3 through their mother & natural guardian Smt. Aasma
4. Smt. Murtaba W/o Sh. Abdul Hakim
All R/o Village Ibrahimpur, P.S. Pathri
District Haridwar
(Through: Sh. Tajendra Kumar, Advocate)
...... Respondents
Coram:
Ms. Kumkum Rani, President
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, President):
This appeal under Section 41 of the Consumer Protection Act, 2019 has been directed against the impugned judgment and order dated 1 First Appeal No. ICICI Lombard General Insurance Company Limited 12.08.2024 246 of 2022 Versus Smt. Aasma and others 08.09.2022 passed by learned District Consumer Disputes Redressal Commission, Haridwar (hereinafter to be referred as "The District Commission") in consumer complaint No. 258 of 2020, styled as Smt. Aasma and others Vs. ICICI Lombard General Insurance Company Limited, wherein and whereby the consumer complaint was allowed.
2. The facts giving rise to the present appeal, in brief, are, as such that the legal heirs of deceased - late Nabid had filed the aforesaid consumer complaint before the District Commission, alleging therein that the deceased was the registered owner of vehicle bearing registration No. UK08-CB-1039, which was insured with the appellant / opposite party vide policy No. MHR/S6236557 (Goods Carrying Vehicle - Package Policy) for the period from 15.04.2019 to 14.04.2020. Under the said insurance policy, the registered owner was also provided personal accident cover to the tune of Rs. 15,00,000/- upon payment of premium of Rs. 325/- by him. It was also alleged that on dated 24.09.2019, the deceased had taken the oxygen cylinders by the insured vehicle to Swage Driplex Water Engineering Company. Upon reaching the destination, the deceased was assisting the helper in unloading the oxygen cylinders. In the process, an accident took place on account of bursting of oxygen cylinder and the deceased succumbed to the injuries sustained in the said accident. A Case Crime No. 328 of 2019 was registered and the postmortem of the body of the deceased was conducted at Government Hospital, Haridwar. The accident was immediately informed by the family members of the deceased to the insurance company at their customer care number and all the relevant documents were sent at the e-mail address of the customer care centre of the insurance company. The insurance company appointed surveyor, who visited the spot and all the requisite documents were supplied to 2 First Appeal No. ICICI Lombard General Insurance Company Limited 12.08.2024 246 of 2022 Versus Smt. Aasma and others the surveyor. The insurance company, however, did not pay the claim amount inspite of lapse of sufficient time and even after issuing legal notice by the complainants. Thus, the insurance company has committed deficiency in service by not paying the claim amount to the complainants, hence the consumer complaint was submitted by the complainants before the District Commission concerned.
3. In the written statement filed by the appellant / opposite party (insurance company) before the District Commission, it was pleaded that no cause of action has arisen in favour of the complainants to file the consumer complaint. It was also pleaded that the complainants have intimated the occurrence to the insurance company on 20.10.2019 for the alleged loss dated 24.09.2019, after an inordinate delay of about 28 days', which amounts to breach of terms and conditions of the insurance policy. It was further pleaded that after a lapse of about one month, the complainants got a letter issued from Sh. Rajneesh Mittal, furnishing explanation for delay as well as requisite documents. The insurance company appointed Sh. Himanshu Sharma, Investigator to investigate the authenticity of the O.D. and P.A. claim lodged by the complainants, who vide his investigation report dated 25.02.2020 has observed that the deceased - late Nabid, whose alleged legal heirs have submitted the claim, was not holding a valid driving licence at the time of the accident. Subsequently, Sh. Neeraj Tanwar, Surveyor & Loss Assessor, was appointed as surveyor, who vide his survey report has assessed the loss of the vehicle to the tune of Rs. 6,233.50/-. The alleged driver - Sh. Muzamil was not available at the spot. The driving licence of Sh. Muzamil was endorsed for hazardous goods on 24.09.2019 and his absence from the spot on the date of the alleged accident, leads to the inference that he was officially present in 3 First Appeal No. ICICI Lombard General Insurance Company Limited 12.08.2024 246 of 2022 Versus Smt. Aasma and others A.R.T.O., Haridwar for the purpose of endorsement of hazardous goods on his driving licence. Thus, there was clear violation of general exception No. 3(b) and condition No. 8 of the insurance policy. Under the aforesaid circumstances, the consumer complaint is liable to be dismissed.
4. Learned District Commission, after hearing the parties and after taking into consideration the entire facts as well as material available on record, allowed the consumer complaint vide impugned judgment and order dated 08.09.2022, thereby directing the appellant - insurance company to pay the insured amount of Personal Accident Cover for Owner Driver - late Nabid amounting to Rs. 15,00,000/- to the complainants along with interest @6% p.a. from the date of filing of the consumer complaint, i.e., 13.10.2020 till actual payment and also to pay an amount of Rs. 10,000/- towards compensation and Rs. 10,000/- towards counsel fee & litigation expenses.
5. On having been aggrieved by the impugned judgment and order, the present appeal has been submitted by the insurance company as an appellant, alleging that at the time of accident, Sh. Muzamil was the driver of the subject vehicle, but at the time of accident, he was absent from the spot and was officially present before the A.R.T.O., Haridwar for getting endorsement regarding transportation of hazardous / dangerous goods on his driving licence, which endorsement was relevantly made on 24.09.2019, i.e., on the date of the alleged accident. Therefore, Sh. Muzamil was not driving the subject vehicle and thereby presumably, it was the deceased - late Nabid, who had driven the vehicle carrying goods of hazardous or dangerous nature at the time of accident and he was not possessing a valid and effective driving licence 4 First Appeal No. ICICI Lombard General Insurance Company Limited 12.08.2024 246 of 2022 Versus Smt. Aasma and others with necessary endorsement for driving hazardous goods vehicle and, as such, the claim was not payable by the insurance company. The next submission of learned counsel for the insurance company was that the intimation of the occurrence was given to the insurance company after a delay of about 28 days'. On the above grounds, the impugned judgment and order passed by learned District Commission is liable to be set aside and appeal deserves to be allowed. Per contra, learned counsel for respondents / complainants submitted that at the time of accident, the driver of the subject vehicle was possessing a valid and effective driving licence for plying / driving hazardous goods vehicle, therefore, there was no violation of the terms and conditions of the insurance policy as well as the provisions of Motor Vehicles Act, 1988.
6. We have heard learned counsel for the parties and perused the record available before us. It is an admitted that the deceased - late Nabid was the registered owner of the vehicle in question. It is also not disputed that the subject vehicle was insured with the insurance company under Goods Carrying Vehicle - Package Policy for the period from 15.04.2019 to 14.04.2020. It is also an admitted fact that the deceased (registered owner of the vehicle) had also paid an additional premium of Rs. 325/- for getting PA Cover for Owner Driver to the tune of Rs. 15,00,000/-. It is conceded by both the parties that the registered owner of the vehicle expired in an accident dated 24.09.2019, about which case crime No. 328 of 2019 was registered and the body of the deceased was subjected to postmortem, as per procedure.
7. We have perused the copy of F.I.R. (Paper Nos. 52/1 to 54), wherein it is specifically mentioned that on the fateful day, the subject 5 First Appeal No. ICICI Lombard General Insurance Company Limited 12.08.2024 246 of 2022 Versus Smt. Aasma and others vehicle was parked within the premises of Swage Driplex Water Engineering Company, Plot Nos. 144, 145, Sector I.D.C. and the deceased was assisting his helper for unloading the oxygen cylinders from the insured vehicle. The said report was submitted by Sh. Praveen Bisht, Sub - Inspector. Thus, it is proved on record that at the time of accident, the insured vehicle was parked in the premises of Swage Driplex Water Engineering Company.
8. Admittedly, the claim in the present case pertains to PA Cover for Owner Driver, as would also be evident from relief No. (a) of the consumer complaint. Thus, the argument that Sh. Muzamil was the driver of the subject vehicle and he drove the vehicle to the site of the accident and thereafter went to the office of A.R.T.O., Haridwar for the purpose of endorsement of hazardous goods on his driving licence, has no relevance, for the simple reason that the claim is for PA Cover for Owner Driver and admittedly, Sh. Muzamil was not the registered owner of the vehicle.
9. The averments made in para 3 of the consumer complaint show that the deceased - late Nabid's driver Sh. Muzamil had taken the vehicle to the spot, where the accident took place while unloading the oxygen cylinders by the deceased. It is also an admitted fact that the driver - Sh. Muzamil was holding a valid and effective driving licence to drive a transport vehicle for carrying goods of dangerous or hazardous nature. Learned counsel for the appellant - insurance company has submitted General Regulation (GR) No. 36 of Indian Motor Tariff, which deals with Personal Accident (PA) Cover under Motor Policy. Sub-section "A" of GR 36 provides for compulsory personal accident cover for owner-driver or co-driver, wherein it is 6 First Appeal No. ICICI Lombard General Insurance Company Limited 12.08.2024 246 of 2022 Versus Smt. Aasma and others specifically provided that the owner of insured vehicle holding an 'effective' driving licence is termed as Owner-Driver for the purposes of this section. Thus, for getting personal accident cover, the owner of the vehicle must be driving the vehicle at the time of accident or travelling in the insured vehicle as a co-driver and also holding an effective driving licence. It is well settled that as per the cited judgment of Hon'ble High Court of Punjab and Haryana at Chandigarh rendered in FAO No. 3309 of 2011 (O&M); Reliance General Insurance Company Limited Vs. Tej Pal alias Teja Ram and others, decided on 09.03.2018, the term "owner-driver" can not be stretched to mean owner or driver. In view of this, we have to see as to whether on the date of accident, the deceased - late Nabid was holding a valid and effective driving licence or not.
10. The copy of driving licence of late Nabid is Paper No. 52 on record, according to which, he was authorised to drive MCWG(NT) and LMV(NT) and the driving licence was valid for the period from 12.09.2017 to 31.12.2036. Thus, the deceased - late Nabid was not even authorised to drive transport vehicle, what to say of having endorsement of hazardous goods on his driving licence. It is worth to mention here that as per the copy of registration certificate of the vehicle (Paper No. 48), it is evident that the insured vehicle was a goods carrier, thus, a transport vehicle.
11. For the reasons aforesaid, we are of the view that the impugned judgment and order has been passed by the District Commission without application of mind. We are also of the considered opinion that the complainants have failed to prove any deficiency in service on the part of the insurance company. Hence, the impugned judgment and 7 First Appeal No. ICICI Lombard General Insurance Company Limited 12.08.2024 246 of 2022 Versus Smt. Aasma and others order passed by the District Commission is totally unjustified and the District Commission has exercised the jurisdiction not vested in it by law and has acted with material illegality and infirmity, while passing the impugned judgment and order. Thus, we are inclined to interfere with the finding recorded by the District Commission. Therefore, the appeal is liable to be allowed.
12. Appeal is allowed. Impugned judgment and order dated 08.09.2022 passed by the District Commission is set aside and consumer complaint No. 258 of 2020 is hereby dismissed. No order as to costs of the appeal. The amount deposited by the appellant with this Commission, be released in its favour.
13. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. A copy of this Order be sent to the concerned District Commission for record and necessary information.
14. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) President (Mr. B.S. Manral) Member Pronounced on: 12.08.2024 8