| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 26 of 25-1-2018. Decided on : 8-02-2022 Jagdish Rai S/o Sh. Tarsem Chand, aged about 53 years ; Lata Bansal W/o Sh. Jagdish Rai S/o Sh. Tarsem Chand aged about 51 years - both residents of #31683, Street No. 3 Paras Ram Nagar, Bathinda. ........Complainants
Versus United India Insurance Co. Ltd., Divisional Office, The Mall, Bathinda, through Sr. Divisional Manager .......Opposite party Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member. Smt. Paramjeet Kaur, Member Present For the complainant : Sh. Angita Mittal, Advocate For opposite party : Sh. S M Goyal, Advocate. ORDER Kanwar Sandeep Singh, President The complainants Jagdish Rai and another (here-in-after referred to as complainants) have filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against United India Insurance Company Limited (here-in-after referred to as opposite party). Briefly stated, the case of the complainant is that complainant Jagdish Rai Bansal, is owner in possession of one Balero Jeep bearing registrtion No. PB-03AC/7030, which was comprehensively insured with the opposite party vide policy No.2004004114P109823652 effective from 27-2-2015 to 26-2-2016 for IDV of Rs.5,40,000/-. An amount of Rs.17,721/- was charged by the opposite party on account of premium, which also includes Rs.100/- for compulsory PA for Owner Driver for Rs.1.00 lac each, totaling to Rs.2.00 lacs, Rs.600/- for PA for unnamed persons and Rs.50/- LL to paid Driver IMT 28 for Rs.1.00 lac. The opposite party issued cover note/policy to indemnify the insured with all losses, if occurred, to the insured vehicle, in any accident etc. and also to indemnify the driver, owner, unnamed persons and LL to paid driver in case of any mishap and in case of death, to indemnify their LRs of deceased person. However, no terms & conditions of the aforesaid policy were ever explained to the insured nor any detailed terms conditions of the said policy were ever supplied to the insured as required under law/IRDA guidelines. It is alleged that on 5-8-2015, deceased Gaurav Bansal, son of the complainants, was returning to his house from his sister's house Monika Bansal, situated at Kamla Nehru Colony, Bathinda on the aforesaid insured Balero Jeep bearing No. PBO3AC/7030. Gaurav Bansal was driving his jeep to his extreme left hand side and at a moderate speed while his father Sh. Jagdish Rai Bansal/complainant No.1, was following him on his motor cycle and at about 8.00 PM when they reached near Stella Hotel, Barnala Bye-pass Road, Bathinda, suddenly one Jagmeet Singh son of Balkaran Singh, resident of village Kotshamir, Tehsil & District Bathinda, driver of Mahindra XYLO bearing registration no. PB-03AC/4464, belonging to M/s J Earth Movers, Mansa Road, Jassi Chowk, Bathinda, coming from opposite side i.e. Rose-garden side brought his aforesaid vehicle on wrong side at a very high speed, in a rash and negligent manner and without blowing any horn and struck the same with the aforesaid jeep of Gaurav Bansal and caused the accident, due to which deceased Gaurav Bansal and said Jagmeet Singh sustained various grievous injuries on their respective persons. Both the injured were taken to Civil Hospital, Bathinda, where Gaurav Bansal had died and his post mortem examination was conducted in Civil Hospital, Bathinda on 6-8-2015 vide PMR No. VD/PM/13/CH/15. It is further alleged that an intimation regarding said accident was given to Police Station SGN Dev. Thermal Plant, Bathinda, where police in connivance with the driver and owner of the aforesaid Mahindra XYLO bearing registration No. PB-03AC/4464, have only recorded DDR No. 20 dated 6-8-2015 on the statement of Sh. Jagdish Rai Bansal, and the concerned police conducted proceedings u/s 174 Cr.P.C. The accident was witnessed by complainant Jagdish Rai Bansal and by many other persons. The said accident took place entirely due to rash and negligent driving of said Jagmeet Singh. The complainants completed all the requisite formalities and furnished the requisite documents, as advised and required by the opposite party without getting the necessity of demanded documents under the bonafide impression that the claim of the complainants shall be paid to them very soon. The opposite party vide letter dated 27-1-2016, repudiated the claim of complainants on flimsy grounds and by observing that 'at the time of accident Shri Gaurav Bansal was driving the vehicle. Neither he was paid driver nor as a passenger at that time. The personal accident coverage as per policy is covered for Owner Driver and Unnamed persons. So we are unable to entertain your claim and filed as 'No Claim.' It is also alleged that even after the repudiation of the claim of complainants, complainants again approached the opposite party and requested to reconsider their claim, but to no effect, and rather only two months back, they flatly refused to reconsider the lawful claim of the complainants. The said act & conduct on the part of the opposite party amounts to unfair trade practice and rather clear cut deficiency in service. On this backdrop of facts, the complainants have prayed for directions to the opposite party to pay Rs. 2,00,000/- with interest @18% p.a. from the date of loss till realization, on account of death of Gaurav Bansal, and Rs. 50,000/- as damages in addition to Rs. 11,000/- as litigation expenses. Upon notice, the opposite party appeared through counsel and filed written reply raising legal objections that this Commission has got no jurisdiction to entertain and decide this complaint. That the complainants have no locus standi and cause of action to file this complaint. That the complaint is not within limitation because even as per the complainants their son Gaurav Barisal died in alleged accident on 05.08.2015 whereas the present complaint has been filed on 25.01.2018. It has been pleaded that the claim of the complainants was rejected only after duly considering the records and also scrutinizing the documents, rules and regulations applicable in this case by the competent authorities of opposite party. As per terms and conditions of the insurance policy, the opposite party, is liable to pay Rs. 2.00 Lakhs on account of death of owner driver or un-named passenger other than insured in Motor Vehicle Accident, but neither the deceased was owner of the vehicle in question nor was an un-named passenger, rather was son of complainants and was driving the vehicle himself, hence was not paid driver. So, the claim of the complainants has been rightly rejected as the terms and conditions of the policy of insurance are binding upon the parties. There is no deficiency of service or unfair trade practice on the part of opposite party. Further legal objections are that the complainants arc estopped from filing present complaint due to their acts, conducts, omission, admissions acquiescence. That the complaint is bad for non-joinder of necessary parties and mis-joinder of parties. That the complainants are liable to be directed to disclose & declare that they have not filed any complaint or claim case, regarding the death of their son Gaurav Bansal nor any such case filed by them is pending adjudication or decided by any court of law nor they have received any compensation regarding the death of their son Gaurav Bansal in the alleged motor vehicle accident. That the complaint is false, frivolous, vexatious and has been filed to get wrongful benefit and to harass and humiliate the opposite party. On merits, the opposite party has pleaded that deceased was married person but his wife has not been impleaded as party and furthermore the complainant No.1 father is not legal heir of the deceased. It may also be added that complainant No.1 being owner of the Balero in question and being insured, is not entitled to file present case. It is admitted that as per R.C. complainant No.1 was recorded as owner of one Balero which is insured with opposite party for the period 27-2-2015 to 26-2-2016 subject to terms and conditions of the policy. It is pleaded that it is matter of record that compulsory PA for owner driver and un-named passenger for Rs.2.00 Lakhs was covered under IMT-28 and premium for the same was received and policy was duly issued. It is submitted that till date except in this complaint, the complainant No. 1 has never represented or demanded or staked that he has not received the insurance policy of Balero, rather the same was duly delivered and that is why the complainants have mentioned the particulars of the same in para No. 2 of the complaint. It is specifically denied that no term and condition of the policy were explained to the insured or that the detailed term and condition of the policy were, not supplied. It has been further pleaded that the story of accident in question now pleaded is altogether different from police version and also from as mentioned in claim form. Earlier version was that accident had taken place due to stray animal coming in front of car of Gaurav Bansal and as a result of which it hit a vehicle coming from rose garden side and Gaurav Bansal died in alleged accident on 05.08.2015. Now the complainants cannot be allowed to shift from their plea/stand already taken in FIR (Occular version) and also in claim form and the claim case was duly scrutinized & considered, but it was declared as No Claim vide letter dated 27.01.2016. It is an admitted fact that Gaurav Bansal was neither travelling in Balero as owner driver nor as un-named passenger, hence he was not covered under an clause of the passenger, therefore, he was not covered under an insurance policy in question. DDR & proceedings u/s 174 Cr.P.C. also corroborates the above plea. The said DDR reads that even as per the statement of complainant No.1, no person was responsible in the above said accident and it had taken place in a natural way. However complainants may be directed to prove that accident was witnessed by JagdIsh Rai Bansal. The opposite party has further pleaded that complainants have not disclosed whether they have filed any claim petition under M.V. Act regarding accident in question and alleged death of Guarav Bansal or not. It is specifically denied that proceedings u/s 174 CR.P.C. were taken by police wrongly, rather plea of complainants is self-contradictory, which is not sustainable. After controverting all other averments, the opposite party prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence photocopy of letter dated 27-1-2016 (Ex. C-1), photocopy of Insurance policy (Ex. C-2), photocopy of RC of vehicle (Ex. C-3), photocopy of DDR (Ex. C-4), photocopy of death certificate (Ex. C-5), photocopy of DL (Ex. C-6) and affidavit dated 12-4-20198 of Lata Bansal (Ex. C-7). In order to rebut the evidence of complainant, the opposite party has tendered into evidence affidavit dated 1-6-2018 (Ex. OP-1/1), photocopy of intimation form (Ex. OP-1/2), photocopy of claim petition (Ex. OP-1/3), photocopy of statement of Jagdish Rai (Ex. OP-1/4) photocopy of affidavit of Jagdish Rai (Ex. OP-1/5), photocopy of statement of Jagdish Rai (Ex. OP-1/6), photocopy of statement of Lata Bansal (Ex. OP-1/7), photocopy of affidavit of Lata Bansal (Ex, OP-1/8), photocopy of statement of Lata Bansal (Ex. OP-1/9), photocopy of statement of Manjit Singh (Ex. OP-1/10) and photocopy of award and memo of cost dated 8-5-2017 (Ex, OP-1/11). We have heard learned counsel for the parties and gone through the record carefully. Learned counsel for the parties have reiterated their stand as taken in their respective pleadings. There is no dispute between the parties that Balero Jeep bearing registrtion No. PB-03AC/7030 of complainant was comprehensively insured with the opposite party vide policy No.2004004114P109823652 effective from 27-2-2015 to 26-2-2016 for IDV of Rs.5,40,000/- (Ex. C-2) and an amount of Rs.17,721/- was charged by the opposite party on account of premium, which includes Rs.100/- for compulsory PA for Owner Driver, Rs.600/- for PA for unnamed persons and Rs.50/- LL to paid Driver IMT 28 for Rs. 1.00 Lac. The vehicle in question met with an accident on 5-8-2015 while it was being driven by son of complainant namely Gaurav Bansal, who died in the said accident. The complainants filed claim with the opposite party which was repudiated by the opposite party vide letter dated 27-1-2016 (Ex. C-1). A perusal of repudiation letter (Ex. C-1) reveals that opposite party repudiated the claim of the complainant on the ground that 'at the time of accident, Gaurav Bansal was driving the vehicle. Neither he was a paid driver nor as a passenger at that time and that personal accident coverage as per policy is covered for owner driver and un-named person. So, the opposite party filed the claim as 'no claim'. As detailed above, there is no dispute that vehicle in question in comprehensively insured with opposite party and complainant also paid premium covering the risk of Compulsory PA for owner driver. The said vehicle met with an accident and Gaurav Bansal,son of the complainant died in the accident. A perusal of Insurance Policy in question Ex. C-2 reveals that at its page No. 6 under Section III Personal Accident Cover for Owner Driver- name of Gaurav Bansal, son of complainant is specifically mentioned as nominee too. Therefore, denial of claim by the opposite party taking plea that Gaurav Bansal was neither paid driver nor passenger at the time of accident, amounts to gross deficiency on the part of opposite party specifically when Gaurav Bansal, son of complainant was insured under PA being owner-driver, under the policy of vehicle in question. Otherwise also, Hon'ble Punjab and Haryana High Court in the case titled New India Assurance Co. Ltd., Vs. Umesh Kumari and others 2011(2) ACJ 890 has held that : “...Comprehensive policy– Tort feaser – Liability to pay compensation – Premium towards compulsory PA to owner-cum-drive was paid – Deceased was the son of owner of the offending vehicle – He has stepped into the shoes of the owner by borrowing the vehicle with permission of the owner – Deceased cannot be treated as a third party – Deceased being son of the owner has to be termed as owner itself – Comprehensive policy would cover the claim of the claimant – The appellant Insurance Company is liable to pay compensation.” Therefore, in the case in hand also, deceased Gaurav Bansal, son of the complainant stepped into the shoes of the owner/complainant No. 1 and he being son of the owner/complainant No. 1 has to be termed as owner itself. So far as the plea of the opposite party that story of accident in question now pleaded is altogether different from police version and also from as mentioned in claim form, is concerned, is of no value as admittedly vehicle in question comprehensively insured which also covers risk of Compulsory PA for owner driver which also finds mentioned name of Gaurav Bansal, being son of complainant, who was driving the vehicle at the time of accident and he died due to accident. This Commission should not succumb to niceties or technicalities in such matters and attempt should be to equate, as far as possible, with entitled relief. Therefore, the opposite party is liable to pay claim. In view of what has been discussed above, this complaint is partly allowed against the opposite party with Rs. 10,000/- as cost and compenstion. The opposite party is directed to pay Rs. 2,00,000/- with interest @9% p.a from the date of repudiation of claim i.e. 27-1-2016 till payment to complainant No. 2 (being Ist class legal heir of deceased). The compliance of this order be made by the opposite party within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 8-2-2022 (Kanwar Sandeep Singh) President (Shivdev Singh) Member (Paramjeet Kaur) Member
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