State Consumer Disputes Redressal Commission
Shri Jinesh Jain & Anr. vs The United India Insurance Company ... on 19 June, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G)
Appeal No.FA/13/126
Instituted on : 15.02.2013
Smt. Sarla Jain, W/o Shri Rakesh Jain,
Address : Shri Dalchand Jain,
Ram Mandir Road, Post Office Katangi,
Tehsil Katangi, District Balaghat (M.P.) ... Appellant
Vs.
The United India Insurance Company Limited,
Through : Divisional Manager,
First Floor, Krishna Complex,
Opposite District Court, Shastri Chowk,
Raipur (C.G.) - 492001 ... Respondent
Appeal No.FA/13/127
Instituted on : 15.02.2013
Smt. Nirmala Jain, W/o Late Shri Kamal Baid,
Address : Ward No.15, College Road,
Mahasamund (C.G.) ... Appellant
Vs.
The United India Insurance Company Limited,
Through : Divisional Manager,
First Floor, Krishna Complex,
Opposite District Court, Shastri Chowk,
Raipur (C.G.) - 492001 ... Respondent
Appeal No.FA/13/128
Instituted on : 15.02.2013
1. Shri Jinesh Jain, S/o Shri Dalchand Jain,
2. Smt. Kiran Jain, W/o Shri Jinesh Jain,
Address : Flat No.A-1, V.V. Apartments,
Opposite Ekta Hospital, Shanti Nagar,
Raipur (C.G.) ... Appellants
Vs.
// 2 //
The United India Insurance Company Limited,
Through : Divisional Manager,
First Floor, Krishna Complex,
Opposite District Court, Shastri Chowk,
Raipur (C.G.) - 492001 ... Respondent
Appeal No.FA/13/129
Instituted on : 15.02.2013
Smt. Rajshree Jain, W/o Late Shri Rishabh Jain,
Address : Shri Dalchand Jain,
Ram Mandir Road, Post Office Katangi,
Tehsil Katangi, District Balaghat (M.P.) ... Appellant
Vs.
The United India Insurance Company Limited,
Through : Divisional Manager,
First Floor, Krishna Complex,
Opposite District Court, Shastri Chowk,
Raipur (C.G.) - 492001 ... Respondent
PRESENT :
HON'BLE SMT. VEENA MISRA, PRESIDING MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES IN ALL FOUR APPEALS :
Shri R.K. Bhawnani, for appellant.
Shri P.K. Paul, for respondent.
ORDER
DATED : 19/06/2013 PER :- HON'BLE SMT. VEENA MISRA, PRESIDING MEMBER This order will govern disposal of Appeal Nos.FA/13/126, FA/13/127, FA/13/128 & FA/13/129, which have arisen from order dated 18.01.2013 of District Consumer Disputes Redressal Forum, Raipur (C.G.) (hereinafter called "District Forum" for short), in Complaint Cases No.512/2010, 515/2010, 516/2010 and 517/2010, // 3 // whereby the complaints were dismissed by the District Forum. The original of this order be retained in the file of Appeal No.FA/13/126 and its copy be placed in the file of Appeal No. FA/13/127, FA/13/128 and FA/13/129.
2 Brief facts necessary for disposal of these appeals are that husband/son of the complainant was travelling in Tavera, registered in the name of Shri Dilip Kumar Kothari, bearing No.C.G.07.-M-9019 from Mahasamund to Dalli Rajhara on 23.10.2009 in connection with some family work. On their way, near office of Electricity Board at Dhamtari-Durg Road turning near Village Chiraud the vehicle met with an accident with truck No.C.G.-17-H-1811 due to negligent driving by the truck driver resulting in death of five persons. It was averred in the complaint that driver of Tavera bearing No.C.G.07-M- 9019 Shri Narayan Singh Rajput was having valid driving license. The accident was reported to the Police. The vehicle Tavera bearing No.C.G.07-M-9019 was under Comprehensive Insurance Policy with O.P. for the period from 31.03.2009 to 30.03.2010 and premium of Rs.50/- per head for 9 unnamed passengers was also paid under IMT- 16 and hence 9 unnamed passengers were covered under insurance policy for Rs.1,00,000/- each. After death of the husband/son of the complainants in the aforesaid accident, the Insurance Company was informed. Complainants authorized Shri K.L. Lunia, Insurance // 4 // Consultant to lay the claim before the insurer, who contacted the insurer on 10.03.2010 regarding P.A. claim of the complainants. The insurer did not co-operate in the matter. Despite all the necessary documents being given to the insurer the claim was not settled. On 26.06.2010, the insurer had sent a letter to Shri Deepak Kothari and had repudiated the claim vide the said letter and the complainants were informed about repudiation of claim vide letter dated 28.06.2010. Subsequent to such repudiation, the complainants again sent letter to the insurer to reconsider their P.A. claim and also sent reminder but no action was taken by the insurer, hence finally complaint before the District Forum was filed on the allegation of deficiency in service by the insurer.
3. Resisting the claim and denying the allegations made in the various complaints, the insurer had taken plea that a contract of insurance is uberimma fides i.e. of Utmost Good Faith. It was averred that proposal for insurance of Tavera bearing No.C.G.07-M-9019 was given to the insurer with registration book of the vehicle wherein name of Shri Dilip Kumar Kothari, S/o Shri Deepak Kumar Kothari was mentioned as owner of the vehicle and on the basis of said document and the proposal for insurance presented before the insurer the vehicle was insured for the period from 31.03.2009 to 30.03.2010 but on receiving intimation regarding the accident dated 23.10.2009 the // 5 // insurer conducted investigation and it was found that prior to purchase of vehicle and issuance of insurance of policy the owner named in the registration booklet was already dead. The said person Dilip Kumar Kothari had died on 30.04.2007. This fact was not revealed while obtaining insurance cover hence the said insurance cover was void as it was an agreement / contract with a dead person. It was further averred in the written version that it was also revealed in investigation that subsequent to accident Shri Deepak Kumar Kothari had given an affidavit to R.T.O. Durg dated 28.10.2009 wherein it was stated on oath that Tavera bearing No.C.G.07-M-9019 was to be registered in the name of Shri Deepak Kumar Kothari, Karta HUF, but it was mistakenly registered in the name of Shri Dilip Kumar Kothari hence this affidavit was being filed to get the entry in registration booklet corrected. Believing on the affidavit, R.T.O. Durg had corrected the entries in the registration booklet as well as in the form nos.29 and 30. On receiving such information, during investigation, the insurer cancelled the insurance policy as being void from the very beginning and had issued letters informing this fact to the parties concerned hence complainants were not entitled to get any benefit on the basis of insurance policy which was void from the very beginning.
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4. The District Forum considered the material placed before it and found the insurance policy to be void. Aggrieved by the said order, the complainants have approached us by means of above mentioned appeals.
5. Learned counsel for the appellants submitted that the complainants/present appellants were beneficiaries under the insurance policy. Learned counsel for the appellants also submitted that the relatives of the complainants travelling in the Tavera bearing No.C.G.07-M-9019 were third parties. They were not at fault for wrong registration or for issuance of policy in the wrong name. The insurer had charged premium for unnamed passengers and the relatives of the complainants had died during accident of the said vehicle while they were travelling in the vehicle as such un-named passengers who were covered under IMT 16 and hence complainants were entitled to receive the insured sum but by not paying it the insurer has committed deficiency in service. Learned counsel for the appellants further submitted that the insurer is not competent to cancel the insurance policy from its inception. In support of the pleas taken by him learned counsel for the appellants relied on Unitied India Insurance Co. Ltd. Vs. Laxmamma and Others, 2012 (II) D.M.P. 145 (S.C.); National Insurance Co. Ltd. Vs. Shri Madhusudan Das, 2011 (2) CPR 16 (NC); Amline Textile Private Limited. Vs. United India Insurance Co. Ltd., 2011 (3) CPR 197 (NC); Smt. Sapna Ahuja Vs. The New India // 7 // Assurance Co. Ltd. Appeal No.100/08 decided by this Commission vide order dated 03.12.2008 and bunch of three appeals bearing No.257/2009, 258/2009 and 259/2009 between Komalchand Jain & others Vs. United India Insurance Co. Ltd. & others decided by this Commission vide order dated 04.08.2009.
6. Counsel for the respondent submitted that order of the District Forum is just and proper because there can be no contract with a dead person and District Forum has rightly dismissed the complaints. He submitted that the contract of insurance is that of good faith and once there is breach of trust the insured or any person claiming under the policy is not entitled to receive any benefit. Learned counsel for the respondent also submitted that the cases relied by the counsel for the appellants relate to third party claims and will not be applicable to the present cases which relate to personal accident claims. Counsel for the respondent relied on Deepak Kothari Vs. United India Insurance Company Limited & another bearing Appeal No.747/2011 decided by this Commission vide order dated 25/01/2012; Deokar Exports Pvt. Ltd. Vs. New India Assurance Company Ltd., I (2009) CPJ 6 (SC); United India Insurance Co. Ltd. Vs. M/s Harchand Rai Chandan Lal, 2005 (1) CPR 64 (SC) and Shri Subhash Chand Jain Vs. M/s United India Insurance Company Limited & others, First Appeal No.272 of 2010 decided by National Commission on 13.10.2010.
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7. Indisputably till the date of accident Tavera bearing No.C.G.07- M-9019 was registered in the name of Shri Dilip Kumar Kothari and insurance for the relevant period from 31.03.2009 to 30.03.3010 was also obtained in the name of the owner of the vehicle. It is also not in dispute that the said Shri Dilip Kumar Kothari had died prior to issuance of policy on 30.04.2007. So there remains no doubt that the insurance policy as existed would be considered to be a contract with the dead person which has no relevance in the eye of law and is void- ab-initio i.e. void from the very beginning. We find that none of the cases relied by learned counsel for appellant relates to a contract with dead person. So, the cases relied by learned counsel for appellant relating to different facts would be of no help to him.
8. Learned counsel for appellants had also taken the plea that the relatives of the complainants/ appellants who died in accident were third parties and cited cases relating to award in favour of third parties. This plea also cannot be sustained for the simple reason that person other than insurer and insured can only be termed as third party. Any person claiming under a particular policy cannot be said to be third party. Moreover, as per their own version, the complainants had laid PA claim before the insurer. Otherwise also there is separate machinery provided for third party claims and consumer fora has no jurisdiction to decide third party claims. So the plea of learned counsel // 9 // for appellants regarding the un-named passengers being third party has no force and cannot be accepted.
9. Learned counsel for appellants had also submitted that in the cases relied by him it has been held by the Apex Court that unless the insurer has cancelled the policy before the date of accident the insurer shall be liable under the policy. We find that the case relied in this regard by learned counsel for appellant is Laxmama's case (supra) but facts of the said case are also different as it relates to bouncing of premium cheque and it was held that where policy of insurance is issued by an authorized insurer it has to satisfy the award of compensation to third parties unless policy of insurance is cancelled by authorized insurer and intimation of such cancellation reaches the insured before the accident. The appeals under consideration neither relate to bouncing of premium cheque nor liability of insurer to third parties, hence the appellants would not get any benefit from the case relied by their counsel.
10. On the basis of observations made hereinabove we are of considered view that in the facts of the case the contract of insurance was void-ab-initio as the policy was taken in the name of a dead person. As the policy was void from the very beginning, it did not even require cancellation by the insurer. We firmly believe that under such policy no benefit can be claimed for death of un-named // 10 // passengers who were insured under the policy in question. So we find no error in the order passed by the District Forum, it is hereby affirmed. These appeals being without any merits are hereby dismissed. No order as to costs. However, we think it proper to grant liberty to the complainants/appellants to avail of any other remedy, if available under any other law and for limitation they shall be entitled to claim condonation of time spent before Consumer Fora.
(Smt.Veena Misra) (V.K.Patil) (Ms. Heena Thakkar)
Presiding Member Member Member
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