Present:

For the  Complainant:                       Sh.Mandeep Singh, one of the complainants.

For Opposite Party:                          Sh.Jasvinder Singh, Advocate.

Quorum:

Sh.Amrinder Singh Sidhu, President.

Sh.Mohinder Singh Brar, Member.

Smt.Aparana Kundi, Member.

Order by:

Sh.Amrinder Singh Sidhu, President

1.       The complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (as amended upto date) on the allegations that the complainants are the only legal heirs of Gurmail Singh (now deceased) son of Joginder Singh, resident of village: Raunta, District Moga. The complainants allege that Gurmail Singh  was owner  of Bajaj CT 100 Deluxe Motor Cycle bearing No.PB-66-3865 Motor Cycle and said vehicle was full insured  with the Opposite Party for the period w.e.f. 14.08.2016 to 13.08.2017 vide policy No.2012043116-P106394041. Further alleges that on 16.03.2017 Gurmail Singh was going from Phulewala Bridge towards Smadh Bhai on his abovesaid motor cycle, at about 3 PM a stray bull came suddenly on the road and struck with the motor cycle of Gurmail Singh, due to which Gurmail Singh fell down and suffered multiple injuries. He was immediately brought  and admitted in Guru Gobind Singh Medical College, Faridkot and during treatament, said Gurmail Singh died on 17.03.2017. Thereafter, the complainant made various requests to the Opposite Party  to make the payment of the insurasnce claim of Rs.one lakh, but the Opposite Party flatly refused to pay the claim.  As such, there is deficiency in service on the part of the Opposite Party. Vide instant complaint, the complainants have sought the following reliefs.

a)       To pay the insured amount of Rs.One lakh  on account of death of Gurmail Singh son of Joginder Singh and also to pay compensation amounting to Rs.50,000/- and litigation expenses or any other relief to which this District Consumer Commission may deem fit be granted.

2.       Opposite Party appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the complaint is not mainainable; that the complainants have got   no locus standi to file the present complaint; that there is no deficiency in service on the part of the Opposite Party. The complaint is pre mature as no claim has been lodged with the Opposite Party by the complainants so far. It is however, admitted that insurance policy bearing No.2012043116-P106394041 is in the name of Gurmail Singh son of Joginder Singh for vehicle No.PB-66-3865 and is only a  third Party liability and said insurance policy does not cover the personal accident death of the insured, and therefore, the complaint deserves dismissal.     On merits, the Opposite Party took almost same and similar objections  as taken up by them in the preliminary objections.           

3.       In order to  prove  their  case, the complainants have tendered into evidence  the affidavit of Manpreet Kaur Ex.C1,  affidavit of Gaganpreet Kaur Ex.C2,  copy of policy Ex.C3, copy of DDR Ex.C4, copy of post mortem report of Gurmail Singh Ex.C5 and closed their evidence.

4.       On the other hand,  to rebut the evidence of the complainants,  Opposite Parties  tendered into evidence the affidavit of Sh.R.N.Bansal, DM Ex.OP1 alongwith copy of policy Ex.OP2  and closed the evidence on behalf of the Opposite Party.

5.       We have heard Sh.Mandeep Singh, complainant as well as ld.counsel for the Opposite Party  and also  gone through the documents placed  on record.

6.       The Complainant has  mainly reiterated the facts as narrated in the complaint and contended that first of all, the written version  filed on behalf of the Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. Further contended that at the time of  issuance of the said policy  to the complainant, no term and conditions were ever explained or supplied by Opposite Parties to the complainant. It was  further contended that at the time of selling the policy by the Opposite Party with regard to motor cycle in question, it was clearly mentioned that in case of accident, the owner of the vehicle will be paid compensation amounting to Rs.1 lakh and for this, the Opposite Party charged Rs.712/- from deceased Gurmail Singh son of Joginder Singh. It is the case of the complainants that the complainants are the only legal heirs of Gurmail Singh (now deceased) son of Joginder Singh, resident of village: Raunta, District Moga. Further  contended that Gurmail Singh  was owner  of Bajaj CT 100 Deluxe Motor Cycle bearing No.PB-66-3865 Motor Cycle and said vehicle was full insured  with the Opposite Party for the period w.e.f. 14.08.2016 to 13.08.2017 vide policy No.2012043116-P106394041. Further contended that on 16.03.2017 Gurmail Singh was going from Phulewala Bridge towards Smadh Bhai on his abovesaid motor cycle, at about 3 PM a stray bull came suddenly on the road and struck with the motor cycle of Gurmail Singh, due to which Gurmail Singh fell down and suffered multiple injuries. He was immediately brought  and admitted in Guru Gobind Singh Medical College, Faridkot and during treatament, said Gurmail Singh died on 17.03.2017. Thereafter, the complainant made various requests to the Opposite Party  to make the payment of the insurasnce claim of Rs.one lakh, but the Opposite Party flatly refused to pay the claim and as such, there is deficiency in service on the part of the Opposite Party.

7.       On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complaint is pre mature as no claim has been lodged with the Opposite Party by the complainants so far. It is however, admitted that insurance policy bearing No.2012043116-P106394041 is in the name of Gurmail Singh son of Joginder Singh for vehicle No.PB-66-3865 and is only a  ‘third Party liability’ and said insurance policy does not cover the personal accident death of the insured, and therefore, the complaint deserves dismissal.

8.       Perusal of the contention of the ld.counsel for the complainant   shows  that  the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. In this regard,  Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment,  has held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the

“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”

Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by  an unauthorized person has no legal effect.

9.       For the sake of arguments, for the time being, if the written reply filed by Opposite Party is presumed to be correct, the next  plea  raised by Opposite Party  is that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim as claimed.  But the Opposite Party could not produce  any evidence to prove that terms and conditions of the policy were ever supplied to  the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party,  it is clear that Opposite Party  has failed to prove on record that they did supply the terms and conditions of the policy to  the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.”  Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that

“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”

10.     It is  not disputed that  Gurmail Singh  was owner  of Bajaj CT 100 Deluxe Motor Cycle bearing No.PB-66-3865 Motor Cycle and said vehicle was full insured  with the Opposite Party for the period w.e.f. 14.08.2016 to 13.08.2017 vide policy No.2012043116-P106394041, copy of the cover note is placed on record as Ex.C3. It is also not disputed that on 16.03.2017 Gurmail Singh was going from Phulewala Bridge towards Smadh Bhai on his abovesaid motor cycle, at about 3 PM a stray bull came suddenly on the road and struck with the motor cycle of Gurmail Singh, due to which Gurmail Singh fell down and suffered multiple injuries. He was immediately brought  and admitted in Guru Gobind Singh Medical College, Faridkot and during treatament, said Gurmail Singh died on 17.03.2017. The only question for the rejecting the claim of the complainant is that the motor cycle in question was insured as a ‘Third Party Claim’ but there is such mention on the cover note Ex.C3 as well as on  policy cover Ex.OP2 that this policy was obtained by Gurmail Singh (deceased)  as third party claim.  Moreover, as stated above, since no policy terms and conditions were ever supplied to the insured, then how it can be applicable/ or enforced upon the insured at later  stage.  The Opposite Party has failed to prove or produced on record that the policy in question was for a  third party claim. Hence, we do not agree with the aforesaid contention of the ld.counsel for the Opposite Party.   

11.     In such a situation the repudiation made by the Opposite Party regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.        The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

12.     In view of the above discussion, we are of the opinion that the Opposite Party-Insurance Company have  wrongly and illegally rejected the claim of the complainant. Consequently, we allow the complaint and  the Opposite Party-Insurance Company is directed to pay the insured claim of Rs.One Lakh to the complainants (i.e.all the legal heirs of Gurmail Singh son of Joginder Singh, insured) within 45 days from the date of receipt of copy of this order, failing which the Opposite Party shall be liable to pay the awarded amount alongwith  interest @ 8%  per annum from the date of filing the complaint i.e. 07.03.2018 till its actual realisation. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be supplied to the parties free of cost. File be consigned to record room after compliance.

13.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated: 02.11.2021.