ICICI Lombard Gic. Ltd vs Anju Dashrath Selokar

This Execution Revision Petition has been filed by the petitioner, ICICI Lombard GIC Ltd. against the order dated 29.1.2014 passed by the State Consumer Disputes Redressal Commission, Maharashtra (for short, 'State Commission') in First Appeal No.A/13/85.

Brief facts of the case relevant for deciding the present Execution Revision Petition are that Truck No. MH-31 CB 4358 Tata 909 was owned by Mr. Atul Ashokrao Ugle and was insured with the petitioner insurance company with Policy ending on 1.11.2008. Meanwhile, the vehicle met with an accident on 1.1.2008 and the driver Dashrath Marotrao Selokar, who was the husband of the present complainant Ms. Anju Dashrath Selokar died in the accident. The Consumer Complaint no.801 of 2009 was filed by the wife of the driver for paying the insured amount of Rs.5,20,801/- alongwith Rs.2 lakhs as the insurance amount in the personal accident policy for the driver owner. Simultaneously, the owner of the truck Atul Ashokrao Ugle also filed Consumer Complaint bearing no. 718 of 2009 alongwith Ms. Anju Dashrath Selokar. Both the complaints were resisted by the petitioner insurance company on the ground that the complainants did not file any claim before the insurance company and therefore, both the complaints were not maintainable and were liable to be dismissed.

However, the District Forum disposed of both the complaints by ordering that the complainants should submit the insurance claim in respect of the vehicle and the insurance claim in respect of the death of the driver of the vehicle alongwith entire documents to the insurance company and the non-applicant insurance company to dispose of the said claim within 45 days from the receipt of the same. The present complainant submitted all the papers to the insurance company. However, insurance company did not decide the matter within 45 days as ordered by the District Forum and Smt. Anju Dashrath Selokar, filed Execution Petition before the District Forum being EA/11/34 dated 6.5.2013. The District Forum passed the order directing the insurance company to pay Rs.7,20,801/- alongwith interest @ 12% p.a. as also compensation of Rs.50,000/- on the basis of the judgment of this Commission passed in R.P. No.2573 of 2003 New India Assurance Company Ltd. Vs. Sharma Oil & Cotton Ginning Factory and another.

Before the District Forum, the concerned Branch Manager of the insurance company also agreed to make payment. However, later on that Branch Manager resigned from the insurance company and the execution could not be completely satisfied at the stage of the District Forum. The insurance company preferred an Execution Appeal before the State Commission bearing no.A/13/85 and the State Commission partly allowed the Execution Appeal by reducing the rate of interest from 12% p.a. to 9% p.a. and amount of compensation from Rs.50,000/- to Rs.5,000/-. The insurance company has come in Execution Revision Petition against the order of the State Commission.

Heard the learned counsel for the parties and perused the record.

Learned counsel for the petitioner insurance company stated that the claim of the original owner Atul Ashokrao Ugle was not payable because the vehicle was sold and transferred to the husband of the present complainant Anju Dashrath Selokar. Thus, Atul Ashokrao Ugle did not have any insurable interest in the vehicle. Similarly , the present complainant Anju Dashrath Selokar also did not have any insurable interest in the vehicle as the vehicle was not owned by her and the vehicle was not registered in the name of present complainant or in her husband's name on the date of accident. The insurance policy is in the name of original owner Atul Ashokrao Ugle. Thus, both the complainants do not have any insurable interest in the vehicle and therefore, no payment is due with respect to insurance claim of the vehicle. So far as the claim of the deceased driver under the personal accident cover is concerned, it is clear that the husband of the present complainant was not the owner of the vehicle and therefore, the clause relating to owner driver cannot be applied to the deceased husband of the complainant who was only the driver. Learned counsel for the petitioner relied upon the recent judgment of this Commission in Future Generali India Insurance Company Ltd. Vs. Sombir, R.P. No.3216 of 2015, decided on 16.8.2016 wherein the claim of the purchaser who had not got the insurance transferred in his name has been disallowed. The claim of owner driver is only for that person who owns the vehicle as well as was driving the vehicle at the time of accident apart from having a valid driving licence. Thus, both the fora below have not considered the legal position while passing the orders in question.

Coming to the judgment of this Commission in R.P. No.2573 of 2003 relied upon by the District Forum, the learned counsel mentioned that in that case the position of insured and insurer was very much clear, but in the present case no insurable interest is established for both the complainants and therefore, the District Forum has erred in applying that judgment in the present case.

Learned counsel for the respondent stated that period of 45 days was granted by the District Forum to decide the claim of the complainant. However, the insurance company failed to decide the same within the prescribed time and therefore, execution was filed by the complainant before the District Forum. The District Forum allowed the total claim of Rs.7,20,801/- and the Branch Manager of the insurance company agreed to release the payment to the complainant before the District Forum. He had promised to deposit the cheque with the District Forum. However, the Branch Manager resigned from the service of the Bank and therefore, execution was not completed before the District Forum. It was further submitted by the learned counsel that owner has relinquished his claim in favour of the purchaser, the present complainant. The insurance company is duty bound to pay the insurance claim in respect of the damaged vehicle as ordered by the District Forum. It was further stated that husband of the complainant was driving the vehicle and as he has purchased the vehicle from Atul Ashokrao Ugle therefore, he was the actual owner of the vehicle and accordingly, he fulfilled all the criteria for being an owner driver. Thus, the complainant is entitled to get the insurance claim in respect of the death of her husband as 'owner driver'.

I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record.

The Consumer Complaint No.718 of 2009 was filed by both the complainants, the original owner Atul Ashokrao Ugle and purchaser of the vehicle Anju Dashrath Selokar. Later on, the matter has been pursued only by purchaser, the present complainant. It means that original owner Atul Ashokrao Ugle has given up his claim in favour of the purchaser, Ms. Anju Dashrath Selokar. After the order of the District Forum dated 5.8.2010 insurance claim was only filed by the purchaser of the vehicle Ms. Anju Dashrath Selokar before the insurance company. Insurance company did not decide the claim within the time limit of 45 days as ordered by the District Forum, therefore, the execution application was filed. Now the question is if the insurance company does not comply with the order of the District Forum and does not settle the claim within the time prescribed in the order, what decision should the District Forum have taken in the execution application. The ultimate aim of the original order of the District Forum was to get the claim decided and if insurance company does not decide the claim , then District Forum has to decide the claim if an application is filed by the complainant before the District Forum. This is the view expressed by this Commission in R.P. No. 2573 of 2003 which was relied upon by the District Forum.

It is true that in that case the position of the insurable interest was not as unclear as is in the present case, but the same ratio becomes applicable if the insurance claim was not decided by the insurance company within the time prescribed by the District Forum. At the initial stage, Branch Manager of the insurance company had agreed to pay the total amount of the insurance. However, later on, he resigned and he did not comply with the order. In a way, it will be treated as admitting all the claims by the insurance company and their acceptance of paying the claim. The State Commission has also upheld the decision of the District Forum in respect of the insurance claim. Thus, at this stage when the insurance company has accepted the payment of claim before the District Forum under the Execution Proceedings and both the fora below have given concurrent findings, this Commission is not inclined to interfere with the order of the fora below in respect of the insurance claim regarding the vehicle. So far as the claim in respect of owner driver under the personal accident cover is concerned, definitely the deceased driver was not the owner of the vehicle at the time of accident and therefore, the clause relating to "owner driver" is not applicable in the present case. The District Forum and the State Commission have not categorically examined this aspect and have erred in allowing the claim relating to owner driver.

Based on the above discussion, the Execution Revision Petition No.32 of 2014 is partly allowed and order dated 29.1.2014 of the State Commission is modified to the extent that instead of Rs.7,20,801/-, the actual amount of insurance would be payable only of Rs.5,20,801/- (Rupees five lakhs twenty thousand eight hundred and one only). The insurance company is directed to comply with the modified order within a period of 45 days. Rest of the order of the State Commission is upheld.