IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 13^th day of July, 2022

Present:  Sri. Manulal V.S. President

Smt. Bindhu R. Member

Sri. K.M. Anto, Member

C C No. 83/2021 (filed on 15-04-2021)

Petitioners                                         :    1) Surendran Pillai,

                                                                   S/o. Janardanan Pillai,

                                                                   Arun Nivas, Karittayil House,

                                                                   S.H. Mount P.O. Nattassery,

                                                                   Kottayam – 686 006.

                                                              2)  Suseela Surendran,

                                                                   S/o. Surendran Pillai,

Arun Nivas, Karattayil House,

                                                                   S.H. Mount P.O. Nattassery,

                                                                   Kottayam – 686 006.

                                                               3) Archana Sura,

                                                                   D/o. Surendran Pillai,

Arun Nivas, Karattayil House,

                                                                   S.H. Mount P.O. Nattassery,

                                                                   Kottayam – 686 006.

                                                                   (For ptrs.1-3, Adv. Benny Kurian)

                                                                             Vs.

   Opposite Party                              :         The Divisional Manager,

                                                                   National Insurance Company Ltd.

                                                                   CSI Square, Baker Hill,

                                                                   Kottayam- 686 001.

                                                                   (Adv. C.J. Jomi)

O  R  D  E  R

Sri. Manulal V.S. President

The brief facts of the case at hand are that the husband of 2^nd complainant is the owner of motor Cycle bearing Registration No. KL-5A-AS-1569 which is insured with the opposite party Insurance Company. The Policy was valid for a period from 15-5-2019 to 14-5-2020. The policy was two wheelers package policy and the complainant paid Rs.2980 as total premium for the policy. As per policy own damage of the vehicle as well as the third party risk and personal accident cover of the owner /driver of the vehicle is also covered. For legal liability cover the opposite party collected an amount of Rs.985/- and for personal accident of the driver /owner an amount of Rs.295. As per policy, in case of death of owner/driver of the vehicle an amount of Rs.15 lakhs is to be given to the legal heirs of driver/owner of the said vehicle. On 20.11.2004 when the insured vehicle was driven by Arunkumar who is the son of the first complainant, met with an accident resulting in the death of the said Arunkumar. The accident has occurred when a lorry coming from the opposite direction hit on the said motor cycle.

On 29.9.20, the complainant lodged a claim for the personnel accident coverage with the opposite party. The opposite party rejected the claim of the insured vide letter dated 23.11.20 on false ground. According to the complainant the act of the opposite party amounts to unfair trade practice on the part of the opposite party. Hence this complaint is filed by the complainant praying for an

order to direct the opposite party to pay Rs.15,00,000/-with interest along with compensation of Rs.25,000/ and cost.

Upon notice opposite party appeared before the Commission and filed version as follows:

The motor vehicle bearing reg no. KL-5-AS-1569 was insured with opposite party vide policy no. 576033311910000488 for the period 15-5-19 to 14-5-20 in which premium was collected for the following heads (a) Rs.1245 for own damage cover, (b) for legal liability cover and (c) Rs.295 personal accident cover for owner- driver. In the policy itself that “P A cover only to owner-driver of the vehicle and also shown the nominee of the insured as his son Arun.

It is clearly stated in section 3 of the policy condition that “Subject otherwise to the terms exceptions conditions and limitations of this Policy, the Company undertakes to pay compensation as per the following scale for bodily injury/ death sustained by the owner-driver of the vehicle. Indirect connection with the vehicle insured whilst mounting into/dismounting from or traveling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:

Provided always that

A) the compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner-driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.15 lakh during any one period of insurance

 B) no compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self-injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.

C) Such compensation shall be payable directly to the insured or to his/her legal representatives whose receipt shall be the full discharge in respect of the injury to the insured.

This cover is subject to

(a) the owner-driver is the registered owner of the vehicle insured herein;  (b) the owner-driver is the insured named in the 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.

d) The fact that the owner is likely to drive the vehicle disclosed in the    

      proposal and the extra premium paid.”

It is further submitted in the version that the personal accident coverage is controlled by G.R.36.According to the opposite party first condition is that the insured must be the registered owner of the vehicle with valid driving license and must be in the vehicle as driver or co-driver. There is no premium paid to cover the risk of the driver vehicle. Since no premium paid to cover the driver of the vehicle the opposite party has no liability. There is no unfair trade practice on the part of the  opposite party.

 First complainant filed proof affidavit in lieu of chief examination and marked exhibit A1 toA6.  Neena Xaviour who is the Administrative Officer of the opposite party filed proof affidavit in lieu of chief examination and marked exhibit B1.

On evaluation of complaint version and evidence on record we would like to consider the following points.

1. Whether there is any unfair trade practice on the part of the opposite party?
2. If so what are the reliefs?

Point number 1 and 2

There is no dispute on the fact that the motor cycle of the complainant bearing reg no. KL-5-AS-1569 was insured with opposite party vide policy no. 576033311910000488 for the period 15-5-19 to 14-5-20. On perusal of exhibit A2 which is the policy issued by the opposite party we can see that the opposite

party has collected premium for the following heads

(a) Rs.1245 for own damage cover,

(b) Rs.985 for legal liability cover and

(c) Rs.295 personal accident cover for owner-driver.

There is no dispute on the fact that the son of the first complainant died in the accident while the motor cycle was driven by him. It is proved by Exhibit A6 that deceased Arun was driving motor vehicle which is insured with the opposite party at the time of accident and due to his sole negligence , accident had taken place and he succumbed to injuries. Opposite party repudiated the claim for the personal accident cover for the owner –cum driver vide exhibit A3 for the reason that the driver of the vehicle at the time of accident was not the registered owner of the insured vehicle.

The counsel 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. We have also perused Section 3 of the policy 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.

Counsel for the complainant relied on decision of the Bombay high court in Mangala Wd/o vijaya Khnda vs. National Insurance Co.Ltd, Decided on                        29-9-20.Both counsels placed reliance on Ramkhiladi and Another vs united in Insurance Co and another(2020 KHC 6008). Counsel for the opposite party relied

on Divisional Manager, Oriental Insurance Co ltd vs Suresh Kumar and Others(2021 KHC 4515), United India Insurance Co ltd vs Legal heir of Deceased Baorot Bharatbhai Arvinbhai and Another (2017 KHC 7375), Sunita Gupta and Another vs Gurusharan and Others (2021 KHC 5256), National Insurance Co ltd vs Pooja and others(2021 KHC 4052) ,Export Credit Guarantee Corpn of India vs M/s Garg Sons International(2013 KHC 4040) and Khadeeja and others vs Rushdi and another (2016 KHC 638).

In Oriental Insurance Co ltd Vs Suresh Kumar and Others (2021 KHC 4515) and in National Insurance Co ltd Vs Pooja and others(2021 KHC 4052) it was held that personal accident cover is only for registered owner cum driver and cannot be extended to borrower of the vehicle.

In Khadeeja and others Vs Rushdi and another (2016 KHC 638) it was held by Kerala High Court that merely stepping into the  shoes of the registered owner of the motor cycle , while using the said vehicle with his consent , the deceased cannot be termed as owner driver for the purpose of personal accident cover.

It was held by the Hon’ble supreme Court in Ramkhiladi and Another vs United India Insurance Co and another(2020 KHC 6008).

“In view of the above and for the reasons stated above, in the present case, as the claim under Section 163A of the Act was made only against the owner and insurance company of the vehicle which was being driven by the deceased himself as borrower of the vehicle from the owner of the vehicle and he would be in the shoes of the owner, the High Court has rightly observed and held that such a claim was not maintainable and the claimants ought to have joined and/or ought to have made the claim under Section 163A of the Act against the driver, owner and/or the insurance company of the offending vehicle i.e. RJ 29 2M 9223 being a third party to the said vehicle.

5.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner driver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. However Therefore, as per the contract of insurance, the insurance

company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1 lakh as observed hereinabove.”

Hon’ble Supeme Court  in Vasuki vs Santhi on 7 October, 2021has held as follows

“The arguments that the driver cannot be treated to be third party as against the owner is not disputed but the fact is that the  insured having taken a personal accident policy in respect of the owner if she herself was driven or the driver who happens to be her husband, the liability of the insurance company is limited.”

On case in hand it is proved by exhibit A2 that the complainant had paid Rs.295 personal accident cover for owner-driver and opposite party had assured the complainant for an amount of Rs.15,00,000/- as personal accident cover. As per term and conditions of the policy opposite party is bound to pay compensation of                      Rs.15,00,000/- in case of death of the owner –driver. Exhibit A4 proves that the deceased Arun had a valid license at the time of the accident.

In the light of the above discussed evidence and judgements of the Hon’ble supreme court we are of the opinion that the act of the opposite party amounts to deficiency in service and unfair trade practice. Therefore we allow the complaint and pass the following order.

1. We hereby direct the opposite party to pay Rs.15,00,000/- to the complainants with an interest @ 9% per annum from 15-4-21 till the date of realization.
2. We hereby direct the opposite party to pay Rs.25,000/- as compensation to the complainants .

  (3 ) We hereby direct the opposite party to pay Rs.5,000/- to the complainant as  

           the cost of this litigation.

        Order shall be complied within 30 days from the date of receipt of this Order.

Pronounced in the Open Commission on this the 13^th day of July, 2022

Sri. Manulal V.S. President             Sd/-

Smt. Bindhu R. Member                 Sd/-

Sri. K.M. Anto, Member                 Sd/-

Appendix

Exhibits marked from the side of complainant

A1 – Copy of RC book (KL-05-AS-1569)

A2 – Copy of insurance policy from opposite party

A3 – Letter dtd.23-11-2020 issued by opposite party to 1^st complaiannt

A4 – Copy of license details of Arun S, Nair

A5 – Copy of Postmortem certificate of Arun S. Nair dtd.29-07-19

A6 –Photocopy of FIR No.1330/19 from Gandhinagar Police Station

Exhibits marked from the side of opposite party

B1 – Copy of insurance policy with conditions

                                                                                                By Order

                                                                              Assistant Registrar