Complaint No: 494 of 2018.
Date of Institution: 14.12.2018.
Date of order: 04.01.2024.
Bikramjit Singh son of Jagir Singh, resident of Village Pakiwan, Tehsil Kalanaur, District Gurdaspur, Punjab - 143521.
….......Complainant.
VERSUS
1. The New India Assurance Company Limited, Batala Branch, SCF 179-180, Jalandhar Road, Punjab - 143508, District Gurdaspur, through its Branch Manager.
2. The New India Assurance Company Limited, Registered & Head Office, New India Assurance Building-87. Mahatma Gandhi Road Fort, Mumbai-40001, through its Managing Director.
….Opposite parties.
Complaint u/s 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.Gurbachan Singh, Advocate.
For the Opposite Parties: Sh.Sanjeev Mahajan, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Bikramjit Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against The New India Assurance Co. Ltd. etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant has got an insurance policy vide No.36050331170100002277 from the opposite party No. 1 for his truck bearing registration No.PB-06-V-5150 make/model Tata Motor/LPT3118 for the period w.e.f. 20.12.2017 to 19.12.2018. As per the aforesaid policy, the complainant was got insured for the above mentioned period. It is further pleaded that the complainant is driver by profession and he is owner a truck bearing registration No.PB-06-V-5150 and the complainant was driving his truck at the time of accident and on 01.05.2018 the complainant was coming from Gujarat after loading bags mark Podar VIP-12792 x 883, for unloading the same at Jammu (J&K). It is further pleaded that when the complainant while driving his truck on 05.05.2018 at about 3:00 AM reached near village Tehna, the front tyre of conductor side of truck suddenly burst and the truck got out of control and fell into the ditch after breaking the railings/angles of the road. It is further pleaded that complainant received grievous injuries on his person and his left leg was damaged absolutely and vehicle of complainant was also badly damaged. It is further pleaded that the complainant was evacuated to Medical Hospital Faridkot by the public gathered at the spot and got admitted, thereafter, in Amandeep Hospital, Model Town, G.T. Road, Amritsar, where the complainant remained admitted in the hospital from 05.05.2018 to 21.05.2018 and in the said hospital, the complainant who was injured was diagnosis of left heel paid avulsion with 3rd toe crush amputation and both fractured left leg and underwent debridement plus nailing on 05.05.2018 and still undergoing treatment and from the time of the admission in the hospital to till date. It is further pleaded that the complainant has undergone several operations and approximately Rs.8,00,000/- has been spent on his treatment and in this regard DDR No.08 dated 08.05.2018 was entered in the Police Post Kaler P.S. Faridkot. It is further pleaded that the complainant has lodged the claim with the insurance company through Bank i.e. opposite parties but the opposite party No.1 is lingering the matter with one pretext or the other. It is further pleaded that due to this accident the life of the complainant has been totally changed as he cannot do his work properly which he was doing before the accident. It is further pleaded that complainant has become disable upto 65% and this accident has made the complainant crippled for the whole life and he is still under treatment. It is further pleaded that due to this unnatural accident the complainant as well as his family, his wife and his children are facing a lot of pain as they are only dependents upon him. It is further pleaded that as such the complainant had suffered irreparable loss due to the above referred accident. It is further pleaded that the complainant was an energetic Youngman of 35 years having good health and due to the accident he now became handicapped. It is further pleaded that the complainant is the registered owner of the truck and he himself used to ply the truck on the road for earning livelihood of his family. It is further pleaded that complainant was wholly dependent upon the source of income from truck and now he cannot even drive the truck to earn his livelihood. It is further pleaded that the complainant after lodging the claim in the office of the opposite party No.1 has visited so many times for his claim, but the opposite party No.1 is not caring for this. It is further pleaded that ultimately opposite party No.1 has refused to give any claim for which the complainant is entitled as per the insurance policy. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in services on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in services and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay the claim amount as per the insurance policy to the complainant of Rs.7,50,000/- including the amount of medical expenses as per the bills etc. and the opposite parties may please be bounded with specific cost including litigation cost amounting to Rs.10,000/- and Rs.10,000/- towards the mental harassment, pain etc. to the complainant, in the interest of justice.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint filed by the complainant is not maintainable as the complainant has filed this complaint against the terms and conditions of the Insurance Policy. It is further pleaded that policy does not cover any compensation in respect to accidental injuries to the complainant and hence, the present complaint is liable to be dismissed as the complainant has miserably failed to disclose deficiency, if any, in the services of the opposite parties. It is further pleaded that all allegations made in the complaint, which are not specifically denied herein, are denied being false and baseless. It is further pleaded that complaint is absolutely false and frivolous and liable to be dismissed. It is further pleaded that at the very outset the replying opposite parties deny all the allegations, facts and averments stated in the complaint filed by the complainant except to the extent it is expressly admitted therein. It is further pleaded that non-traversal of any paragraph should be read as categorical denial. It is further pleaded that the complaint filed by the complainant is not legally maintainable against replying opposite parties and is liable to be dismissed, as the complainant has attempted to misguide and mislead the Hon'ble Court and as such, the complaint is liable to be dismissed on this ground alone and that no cause of action has ever arisen in favour of the complainant against the opposite parties to file the present complaint and hence, the complaint under reply is an abuse of the process of law and as such the same is liable to be dismissed. It is pleaded that the complainant is the registered owner of the truck and he himself was driving the truck at the time of the alleged accident and there is NO EMPLOYER EMPLOYEE RELATIONSHIP in the present case and as such the opposite parties are not liable to pay any claim/compensation to the complainant for the injuries and/or disability sustained by him in the alleged accident.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Bikramjit Singh, (Complainant) as Ex.CW-1 alongwith other documents as Ex.C-1 to Ex.C-12.
5. Learned counsel for the opposite parties has filed documents as Ex.OP-1 and Ex.OP-2 alongwith reply.
6. Rejoinder filed by the complainant.
7. Written arguments filed by the opposite parties but not filed by the complainant.
8. Counsel for the complainant has argued that complainant purchased insurance policy from the opposite party No.1 for his truck bearing registration No.PB-06-V-5150 make/model Tata Motor/LPT3118 for the period w.e.f. 20.12.2017 to 19.12.2018. It is further argued that when the complainant while driving his truck on 05.05.2018 at about 3:00 AM reached near village Tehna, the front tyre of conductor side of truck suddenly burst and the truck got out of controll and fell into the ditch after breaking the railings/angles of the road and was evacuated to Medical Hospital Faridkot by the public and thereafter in Amandeep Hospital, Model Town, G.T. Road, Amritsar, where the complainant remained admitted in the hospital from 05.05.2018 to 21.05.2018 and the complainant has undergone several operations and approximately Rs.8,00,000/- has been spent on his treatment and in this regard DDR No.08 dated 08.05.2018 was entered in the Police Post Kaler P.S. Faridkot. Ld. counsel for the complainant has further argued that complainant had moved an application for directions to the opposite parties to file affidavit regarding non receipt of premium and empty column and then rely to application filed by the opposite parties in the shape of affidavit of Sh.Gopal Krishan Manager Suit Claims Hub and admitted in part No.2 to have collected the premium of Rs.100/- which covers death risk of owner only. Since the said reply/affidavit was vague counsel for the complainant has moved another application on 06.12.2023 for directions to the opposite parties to give clause/column wise detail of premiums received but opposite parties failed to supply the said details even after availing various adjournments. It is further argued that the complainant has lodged the claim with the insurance company but the opposite party has failed to settle and pay the claim as per the policy of insurance which amounts of business malpractice and deficiency in service.
9. On the other hand counsel for the opposite parties Mr. Sanjeev Mahajan has argued that policy does not cover any compensation in respect to accidental injuries to the complainant and as such the present complaint is liable to be dismissed as the complainant has miserably failed to disclose deficiency, if any, in the services of the opposite parties. Further argued that perusal of policy document Ex OP1 clearly shows that opposite party has not received any premium from the complainant under the head “COMPULSORY PA COVER FOR OWNER DRIVER” as such there is no liability of the opposite party in respect of the claimed amount. Ld. counsel for the opposite parties has further argued that the opposite parties admitted to have received Rs.100/- but only death of owner is covered and the present complaint is liable to be dismissed.
10. We have heard the both the counsels for the parties and have gone through the record. It is admitted fact that the complainant is registered owner of the truck Bearing registration No.PB-06-V-5150 make/model Tata Motor/LPT3118 and the said truck was insured with the opposite party insurance company vide policy of insurance Ex C1 bearing valid for the period w.e.f. 20.12.2017 to 19.12.2018. It is further admitted fact that the truck owned by the complainant met with an accident on 05.05.2018 at about 3:00 AM near village Tehna, and the complainant himself being driver suffered injuries and thereafter remained admitted in Amandeep Hospital, Model Town, G.T. Road, Amritsar, from 05.05.2018 to 21.05.2018 and the complainant has undergone several operations and has spent amount on his treatment and in this regard DDR No.08 dated 08.05.2018 was entered in the Police Post Kaler P.S. Faridkot. The only disputed point for adjudication is whether opposite party is liable to reimburse the medical bills in respect of treatment under taken by the complainant while driving his truck and opposite parties are liable to pay Rs.7,50,000/- to the complainant as per the insurance policy.
11. To prove his case the complainant has placed on record copy of policy of insurance Ex C1, copy of DDR Ex.C2, copy of medical bill Ex.C3, copy of disability certificate Ex.C4, copy of legal notice Ex.C5, postal receipt Ex.C6, copies of medical bills Ex.C7 to Ex.C11 and copy of letter written by opposite parties Ex.C12.
12. Perusal of policy of insurance Ex.C1 shows that the claim regarding basic TP cover and second column compulsory PA cover for owner driver, LL to paid driver conductor cleaner employed for oprn is blank meaning thereby that opposite parties have not received any premium to cover the personal accident payable to the owner driver. Perusal of file shows that complainant has admittedly met with an accident and suffered injuries and has placed on record treatment record and medical bills on file and besides the medical bills complainant has also placed on record disability certificate Ex.C4 as per which complainant has suffered 65% permanent disability and the said certificate has been issued by competent medical authority at Gurdaspur. Although, the column regarding receipt of payment is blank however, lateron on application having been moved by the complainant Sh.Gopal Krishan Manager of the opposite parties has filed affidavit on 18.11.2023 and has admitted to have receive Rs.100/- premium to recover the death risk of the owner driver. We have also gone through the terms and conditions of the policy of insurance placed on record by the opposite parties. On page No.3 of the said terms and conditions of standard form for commercial vehicle package policy at serial number 5 under the heading Section III Personal Accident Cover for Owner Driver which is read as under:-
"Subject otherwise to the terms, exceptions, conditions and lilitations 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 in direct connection with the vehicle insured whilst or mounting into/dismounting from or travelling in the insured vehicle as a co-driver caused by violent accidental external and visible means which independent or any other cause shall within six calander months of such injury result in :
Nature of Injury Scale of compensation
i) Death 100%
ii) Loss of two limbs or sight of 100%
two eyes or one limb and sight of
one eye
iii) Loss of one limb or sight of one 50%
eye
iv) Permanent total disablement from 100%
injuries other than named above”.
Meaning thereby that the owner-driver of the vehicle is entitled to receive aggregate lump sum compensation of Rs.1,00,000/- in case of death and loss of two limbs or sight of two eyes and one limb or sight of one eye and permanent total disablement from injuries other than named above meaning thereby that as per clause 4 of the table since the complainant has suffered 65% disability as per disability certificate placed on record and is entitled to 100% compensation under the said head. We are of the view that complainant being driver-cum-owner of the vehicle at the time of accident is entitled to receive Rs.1,00,000/- as compensation for the permanent disability suffered in the accident. However, claim of the complainant for medical expenses being not covered under the policy is declined.
13. Perusal of file shows that opposite parties had adopted very casual approach from the very beginning and failed to settle the claim by going through the blank column of personal accident cover in the policy and in the reply filed by the opposite parties totally denied to have received the premium in respect of personal accident which was later on admitted by the manager of the opposite parties by filing affidavit which shows that insurance companies are only interested in collecting the premiums and when it comes to settlement of the claim they have been one excuse or the other to refuse the payment of the claim.
14. We have placed reliance upon judgment of Hon'ble Supreme Court of India reported in 2022 LiveLaw (SC) 506 wherein it was held by the Hon'ble Supreme Court of India as under:-
"Insurance - Insurance companies refusing claim on flimsy grounds and/or technical grounds - While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. (Para 4.1)".
We are of the view that refusal and failure to pay genuine claim of the complainant on account 65% disability suffered by the complainant amounts to deficiency in service on the part of the opposite parties.
15. Accordingly, present complaint is partly allowed and opposite parties are directed to pay compensation of Rs.1,00,000/- on account of 65% permanent disability suffered by the complainant while driving the truck alongwith interest @ 9% P.A. from the date of accident i.e. 05.05.2018 till realization. We are of the view that since the opposite parties from the very beginning adopted a misleading approach and only after being compelled filed affidavit and admitted to have received premium of Rs.100/-, as such we are of the view that complainant has also suffered great harassment and inconvenience and had undergo present litigation. Accordingly, special cost of Rs.50,000/- is also imposed upon the opposite parties especially for leaving the column of PA Cover blank in the policy document and thereafter admitting to have received Rs.100/-. Opposite parties are also directed to pay Rs.10,000/- to the complainant as cost of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
17. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Jan. 04, 2024 Member.
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