Haryana

Karnal

CC/727/2022

Bhateri - Complainant(s)

Versus

Universal Sompo General Insurance Company Limited - Opp.Party(s)

Rajeev Chhachhia

20 Nov 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.727 of 2022

                                                        Date of instt.22.12.2022

                                                        Date of Decision:20.11.2024

 

1. Bhateri (age 22 years), wife of Shri Surender Kumar. Aadhar no.4694-1238-4891.
2. Dhanno Devi (age 70 years) wife of Shri Birbal Singh, Aadhaar no.8162-3168-3673.
3. Mankirat Singh (age 2 years) son of Surender Kumar, minor claimant no.3 through his mother Smt.Bhateri (claimant no.1) as being natural guardian and next friend, who has got no adverse interest with that minors, all residents of VPO Panouri, Tehsil Gharaunda, District Karnal, Haryana.

                                                                        …….Complainants.

                                              Versus

 

Universal Sompo General Insurance Company Limited, 1^st floor, Plot-C, 56-A/13, sector-62, Noida (UP)-201309 (Insurer of Motorcycle Royal Enfield bearing no.HR-91B-2624, vide policy no.2369/67660190/00/000, valid from 29.07.2022 to 28.07.2023.

 

                                                                  …..Opposite Pary.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.      

      Ms. Neeru Agarwal…….Member

      Ms. Sarvjeet Kaur…..Member

 

 Argued by: Shri Rajeev Chhachhia, counsel for the complainants.

                  Shri Virender Sharma, counsel for the OP.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainants have filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant no.1 is the widow, complainant no.2 is mother and complainant no.3 is the minor son of deceased Surender Kumar, who met with an accident. On 09.09.2022, surrender Kumar had gone to Utter Pradesh for his make-up work and at about 12.00 p.m. when he was coming on his motorcycle, which was being ridden by him by following all the traffic rules and norms and when he reached near Bhainswal Chowk where a speed breaker which was broken and he was crossing his motorcycle over it, it got unbalanced and fell on the road and received multiple, serious and grievous injuries on the various parts of his body. In this incident, Surender Kumar died on the spot due to injuries sustained in this accident. After the incident, the body of Surender Kumar was taken to Government Hospital, Panipat and his post mortem is conducted on 10.09.2022. The present accident took place  arising out of use of motorcycle Royal Enfield. The matter was reported to the concerned police and a DDR bearing no.019 dated 10.09.2022 was lodged at Police Station, Tehsil Camp, Panipat. 

2.             It is further averred that deceased Surender Kumar was the registered owner of the aforesaid motorcycle, which is duly insured with OP, bearing policy no.2369/67660190/00/000, valid from 29.07.2022 to 28.07.2023. The said insurance policy is personal accident (PA) cover for owner-driver. As per the terms and conditions of the insurance policy, the legal heirs of deceased are entitled to get compensation to the tune of Rs.15,00,000/- from the OP.  Complainants submitted the claim form, death certificate of Surender Kumar and other relevant documents to the OP to settle the claim. Complainants visited the office of OP several times and requested to release the genuine claim of complainants but OP did not pay any heed to the request of complainants and lingered the matter on one pretext or the other and lastly refused to pay the claim amount regarding the death of Surender Kumar as per terms and conditions of the insurance policy. Due to this act and conduct of OP, complainants have suffered mental pain, agony and lot of harassment as well as financial loss. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence, complainants filed the present complaint seeking directions to the OP to pay Rs.15,00,000/- as insured amount alongwith interest @ 24% per annum, to pay Rs.1,00,000/- on account of mental pain, agony and harassment and towards the litigation expenses.

3.             On notice, OP appeared and filed written version raising preliminary objections with regard to maintainability; jurisdiction; suppression of true and material facts; etc.  On merits, it is pleaded that insured Surender Kumar was the registered owner of motorcycle bearing registration no.HR-91B-2624, which was insured with the OP from 29.07.2022 to 28.07.2023. It is further pleaded that the said motorcycle was being driven by the driver in drunken condition, which is a clear cut violation of terms and conditions of the Motor Vehicle Act, thus the complainants are not entitled to get any claim from the OP. Thus, the claim of complainants has rightly been repudiated by the OP. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.               

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainants has tendered into evidence affidavit of Bhateri Ex.CW1/A, affidavit of Dhanno Devi Ex.CW2/A, copy of form no.25-35 Ex.C1, copy of driving licence of Surender Kumar Ex.C2, copy of RC of vehicle Ex.C3, copy of death certificate of Surender Kumar Ex.C4, copy of insurance policy Ex.C5, copy of aadhar card of Bhateri Ex.C6, copy of aadhar card of Mankirt Ex.C6, copy of aadhar card of Dhanno Devi Ex.C7 and closed the evidence on 09.06.2023 by suffering separate statement.

6.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Ankita Boss Ex.OP1/A, copy of postmortem report Ex.OP1, copy of death certificate Ex.OP2, copy of insurance policy Ex.OP3 and closed the evidence on 02.07.2024 by suffering separate statement.

7.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainants, while reiterating the contents of the complaint, has vehemently argued that Surender Kumar (since deceased) was the registered owner of the motorcycle bearing registration no.HR-91B-2624. The said motorcycle was insured with the OP and personal accident to owner-cum-driver for the sum of Rs.15,00,000/- was also covered in the said policy. On 09.09.2022, the Surender Kumar died in a roadside accident while driving the insured motorcycle. A DDR no.019 dated 10.09.2022 was lodged in Police Station Tehsil Camp, Panipat. Complainants being legal heirs of deceased lodged the claim with the OP under the personal accident claim and submitted all the required documents but OP did not pay the claim and denied the same on the false and frivolous ground and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that as per investigation report, at the time of accident, the driver of the insured vehicle i.e. Surender Kumar was under the influence of alcohol.  The insured had violated the terms and conditions of the insurance policy. Thus, the claim of complainants was rightly repudiated by the OP and lastly prayed for dismissal of the complaint.

10.           Admittedly, Surender Kumar (since deceased) was the owner and driver of the motorcycle bearing registration No.HR-91B-2624 at the time of accident. It is also admitted that the owner-cum-driver was covered for Rs.15,00,000/- in  personal accident case. It is also admitted that said Surender Kumar was died in roadside accident while driving the insured motorcycle.

11.           The claim of the complainants has been denied by the OP on the ground that insured Surender Kumar (since deceased) was under the influence of alcohol at the time of accident.

12.           The onus to prove its version was relied upon the OP but OP has miserably failed to prove the same by leading any cogent and convincing evidence. There is nothing on the file to prove that the driver of the insured vehicle i.e. Surender Kumar was under the influence of alcohol at the time of accident. Even, in the postmortem report Ex.OP1, there is no where mentioned that deceased was in drunken condition at the time of accident. During the process of postmortem, viscera would have been handed over to the police by the doctor for sending the same to Forensic Science Laboratory for examination.  But OP has failed to produce on file report of viscera to prove its version. Hence, without any proof it cannot be held that the driver was under the influence of liquor at the time of accident. Further, the case of the OP based upon the investigation report but OP has failed to place on file alleged investigation report. The OP has also failed to examine the alleged investigator or to tender his affidavit to prove its version. Thus, the repudiation of the claim of complainants is only on the basis of presumption and assumption, which is not admissible in the eyes of law.  Hence the plea taken by the OP has no force.

13.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

                Keeping in view the ratio of the law laid down in the abovesaid authority and the facts and circumstances of the present complaint, we are of the considered view that the act of the OP while repudiating the claim of complainants amounts to deficiency in service, which is otherwise proved as genuine one. Hence, complainants are entitled for the insured amount under personal accident claim.

14.           As per insurance policy Ex.C5/OP3, the sum insured under personal accident is Rs.15,00,000/-. Hence the complainants being leal heirs of the deceased are entitled for Rs.15,00,000/- the insured amount alongwith interest, compensation for harassment, mental pain and agony and litigation expenses etc.

15.           As per aadhar card Ex.C7, the date of birth of complainant namely Mankirat Singh is 17.12.2019, hence he is a minor. As per death certificate dated 25.01.2005, the father of the deceased Surender Kumar is no more.

16.           In view of the above discussion, we allow the present complaint and direct the OP to pay Rs.15,00,000/- alongwith interest @ 9% per annum from the date of filing of the complaint i.e.22.12.2022 till its realization to the complainants in equal share. We further direct the OP to pay Rs.25,000/- to the complainants on account of mental agony and harassment suffered by them and Rs.11,000/-for the litigation expenses. The share of Mankirat Singh shall be deposited in Nationalized Bank in the shape of FDR till his attains the age of majority. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated:20.11.2024

         President,

      District Consumer Disputes                           

      Redressal Commission, Karnal

 

                   ( Neeru Agarwal)            (Sarvjeet Kaur)

                         Member                        Member