(Delivered on 07/10/2021)

PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.

1.         Appellant/original complainant -  Smt. Mira Roy  has preferred   the present  appeal, feeling aggrieved by the impugned judgment and  order dated 28/06/2010  passed by the  learned District Consumer Commission, Chandrapur  in Consumer Complaint No. 95/2010 by which  the complaint filed by the  appellant /complainant came to be dismissed.  (Appellant hereinafter shall be referred as complainant and respondent as O.P. for the sake of convenience)

2.         Short facts leading to the filing of the present appeal may be narrated as under:-

            Complainant – Smt. Mira Roy is  the wife of the deceased Ashok Roy who was serving as  operator in Western Coal Field. Mr. Ashok Roy was required to go to Bihar in the month of January -2010 to attend one marriage ceremony and so he had borrowed one Maruti Alto Car bearing registration No. MH-34/K-3484 of his friend Mr. Ramsingh Rangbiharsingh . Mr. Ashok Roy was also having driving license  to drive  a four wheeler  and the Maruti Alto Car was duly  insured  with the  O.P.- ICICI Lombard General Insurance Company for the period  from 28/02/2009 to 27/02/2010. Complainant – Smt. Mira Roy has contended that  while  returning  from Bihar and when her husband  was  driving  the Maruti Alto Car, on 16/01/2010  the Alto Car met with an accident  in which  she lost her husband. Complainant  has  alleged  that  as per the terms and conditions  of the Insurance Policy  she was entitled  for sum of Rs. 2,00,000/- as  proper  premium  was paid.  Complainant  has    alleged that  when she  approached  the O.P. for payment of insurance  amount  of Rs. 2,00,000/- the same  was declined  and so she served  notice on 26/03/2010  to the O.P. but there was  no effect.  The complainant was thus compelled to file the consumer complaint against the O.P.-ICICI Lombard General Insurance Company.

3.         Learned District Consumer Commission, Chandrapur  went through  the contents of the complaint  as well as the  documents  placed on record and also the evidence affidavit  and after appreciating  the oral  and documentary  evidence  on record, the learned District Consumer Commission, Chandrapur gave  the  findings that  the complainant was not entitled  to file consumer complaint  as  the specific remedy  for claiming compensation  is already  provided under the provisions of  Motor Vehicle Act and so learned District Consumer Commission, Chandrapur  dismissed the complaint  by passing  an order dated 28/06/2010,. Against this order passed by the learned District Consumer Commission, Chandrapur  the present appellant  has  come up in appeal.

4.         Prior  to dealing with  the  contentions advanced  by  Mr. Kullarwar, learned advocate for appellant  it is necessary to  mention that  certain  facts are not disputed  namely that  the husband of the complainant  was driving  the Maruti Alto Car, bearing  registration  No. MH-34/K-3484 when it met with an accident on 16/01/2010. There is also  not dispute  that  the Maruti  Alto Car was  duly insured  by the O.P.- ICICI Lombard General Insurance Company for the period  from 28/02/2009 to 27/02/2010 and so   was insured  at the time of accident. The complainant  has also  placed on record  the copy of cover note  of   Insurance Policy  which also shows that  the Maruti  Alto Car was duly  insured.  Mr. Kullarwar, learned advocate  for the appellant has submitted   before me  that  the learned District Consumer Commission, Chandrapur has not taken  into consideration   the  fact that  due premium  of Rs. 100/- was paid  for  insurance  cover  of Rs. 2,00,000/- for  the owner as well as driver. It is submitted by him that there was Personal Accident Cover for Rs. 2,00,000/-. Secondly,  Mr. Kullarwar, learned advocate for the appellant  has also submitted that  the learned District Consumer Commission, Chandrapur  has not  considered the fact that the   remedy  provided under  the  Consumer Protection Act,1986 was in addition  to  and not in derogation  of the remedy provided  under the Motor Vehicle Act namely  the the Tribunal constituted  under the Motor Vehicle Act.  I do find considerable force in this contention. In view of specific provision of Section 3 of the Consumer Protection Act, 1986 merely because the specific remedy is provided under the Motor Vehicle Act, the remedy under the Consumer Protection Act,1986 would  not be barred.

5.         Coming now to the other aspect, the copy of Insurance Cover Note itself shows that there was the   insurance cover of Rs. 2,00,000/- for the owner - driver and the premium was  also duly paid.  On this aspect Mr. Kullarwar, learned advocate for the appellant has also relied upon two judgments in the case of United India Insurance Co. Ltd. Vs.  Pushpa Devi Mantri, in Revision Petition  decided  by the Hon’ble National  Commission  on 8 February, 2017 and Prabha Tyagi Vs. National  Insurance Co.  Ltd. in Revision Petition No.  568/2017 decided by the Hon’ble National Commission  on  18 September, 2018. In both  these  cases  the facts were  similar and  extra premium  of Rs. 100/- had came to be paid for   Personal Accident  Cover of Rs. 2,00,000/- but the  insurance company had repudiated  the claim. In the case of United India Insurance Co. Ltd. Vs.  Pushpa Devi Mantri (cited supra ) the  Hon’ble National Commission  has  elaborately  dealt with  all aspects of the Personal Accident  Cover and also  who is  entitled  for the same.  In the aforesaid  case  it was observed  that   the occupiers of the  private car  were coverd under the Insurance Policy  and the driver  also was an occupier. In the present  case  before  us the  husband of the complainant  namely Mr. Ashok Roy was  himself  driving the vehicle  when accident  took place  and so he had   stepped   in to the shoes  of driver.  In view of these facts  and also  the fact that  the premium  was duly paid  the complainant  was entitled  for  an amount of Rs. 2,00,000/- by way of   Personal  Accident  Cover mentioned in the Insurance Policy. In the light of aforesaid discussion, findings given by the learned District Consumer Commission, Chandrapur as well as an order dated 28/06/2010  passed by the learned District Consumer Commission, Chandrapur will have to be set aside. I therefore pass the following order.

ORDER

i.          Appeal is hereby partly allowed.   

ii.          Impugned order dated 28/06/2010, passed by the learned District Consumer Commission, Chandrapur  in Consumer Complaint  No. 95/2010 is hereby  set aside and complaint  is hereby partly  allowed.

ii.          O.P. - ICICI Lombard General Insurance Company is directed to pay compensation  of an  amount of Rs. 2,00,000/- along with interest  at the rate of 12% p.a.

iv.        O.P. - ICICI Lombard General Insurance Company shall  also pay Rs. 15,000/- by way of  compensation  towards  mental and physical  harassment  and Rs. 5,000/- towards cost of litigation .

v..        Copy of order be furnished to both the parties free of cost.