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Judgment
This revision has been filed by the revision petitioner - insurance co. against concurrent findings of the District Forum and the State Commission wherein the two fora below have determined deficiency in service on the part of the insurance co. and awarded the insured amount of Rs. 1,00,000/- to the complainants with interest @ 8% p.a. from the date of filing the consumer complaint till the date of actual payment.
Admitted facts of the case, shown of rhetoric, are that on 31.12.2004 Shobhit Kumar (son of the complainants) died in a road accident while driving a motor-cycle insured with the insurance co. vide an insurance policy valid w. e. f. 17.11.2004 to 16.11.2005 in which personal accident insurance cover of Rs.1,00,000/- of owner - driver was included. The registered owner of the vehicle was complainant no. 2 - Smt. Sarlesh Yadav (mother of the deceased son). The complainant paid additional premium of Rs.50/- towards personal accident cover of owner - driver.
Initially a consumer complaint no. 97/2011 was filed alleging deficiency in service on the part of the insurance co. It was dismissed by the District Forum vide its Order dated 10.09.2012 on ground that the complaint was premature; liberty was granted to the complainants to file a claim with the insurance co. regarding the death of their son if they so wish.
On claim being filed and being repudiated by the insurance co., the complainants filed a second consumer complaint no. 14/2012 before the District Forum. The District Forum appraised the case and vide a reasoned Order dated 13.02.2014 allowed the complaint, inter alia holding that:
;g Lohd`r rF; gS fd nq?kZVuk ds le; eksVj lkbfdy dks ifjoknhx.k dk iq= 'kksfHkr dqekj pyk jgk FkkA ftldh nq?kZVuk esa e`R;q gqbZ gSA nq?kZVuk ds le; og nq?kZVuk xzLr okgu dk pkyd FkkA ifjoknhx.k dk rdZ gS fd pw¡fd og nq?kZVukxzLr okgu pkyd Fkk blfy, og dEIkyljh ilZuy ,DlhMsUV vkQ vksuj & MªkbZoj ds vUrxZr doj FkkA foi{kh dk rdZ gS fd dEiyljh ilZuy ,DlhMsUV vkQ vksuj&Mªkboj ds vUrxZr dsoy vksuj doj gS rFkk og Hkh rc tc fd vksuj gh xkM+h pyk jgk gksA ;g Qksje] foi{kh ds bl rdZ ls lger gksus esa vleFkZ gSA vksuj&Mªkboj gsrq dEiyljh ilZuy] ,DlhMsUV dk lgh vFkZ ;g gS fd blds vUrxZr vksuj Hkh doj gS rFkk Mªkboj Hkh doj gSA Ifjokn rnuqlkj eatwj gksus ;ksX; gSA
%%% vkns'k%%%
Ifjokn eatwj fd;k tkrk gSA foi{kh bl fu.kZ; ds nks ekg ds vUnj #0 ,d yk[k dk Hkqxrku ifjoknhx.k dks djsA foi{kh mDr /kujkf'k ij 08 izfr'kr okf"kZd ds nj ls C;kt Hkh vnk djsa] tks ifjokn izLrqr djus dh fnukad ls okLrfod Hkqxrku ds fnukad rd dk gksxkA
(emphasis supplied)
The opposite party - insurance co. appealed in the State Commission. The State Commission also appraised the case and vide a reasoned Order dated 03.11.2017 dismissed the appeal and affirmed the Order dated 13.02.2014 of the District Forum, inter alia holding that:
i=koyh dk ifj'khyu ;g n'kkZrk gS fd vihykFkhZ dks okgu dk chek gksuk o chfer le; esa okgu dk nq?kZVukxzLr gksuk Lohdkj gS rFkk ;g Hkh Lohdkj gS fd eksVj lkbZfdy ds chek ds le; 50@&# vfrfjDr fy;k tkuk Lohdkj gS rFkk ikfylh esa ;g Hkh Li"V vafdr gS fd okguLokeh Mªkboj dh e`R;q ij 1]00]000@� dh /kujkf'k dk eqvkotk dk izkfo/kku gSA fookn flQZ bl ckr dk gS fd vihykFkhZ dk dFku gS fd okgu Lokeh & Mªkboj dh e`R;q ij gh ,d yk[k #i;s dh /kujkf'k nh tk ldrh gSA ikfylh esa Li"V #i ls ;g vafdr gS fd vksuj&Mªkboj dh e`R;q ij 1]00]000@� dh /kujkf'k vknk djus dk izkfo/kku gSA vr% izR;FkhZ la[;k&2 okgu Lokeh ds iq= 'kksfHkr dqekj ds ikl oS?k Mªkbfoax ykblsal gS] og viuh ek¡ dh vuqefr ls okgu pyk jgk Fkk blfy, mldh e`R;q ij chek /kujkf'k vnk dh tk,A orZeku izdj.k esa ;g mYys[kuh; gS fd e`rd iathd`r Lokeh dk iq= gS vkSj iathd`r Lokeh efgyk gS vkSj mudk iq= tks okgu pyk jgk Fkk mlds ikl oS?k Mªkbfoax ykbZlsal gksuk Hkh ik;k tkrk gSA ,slh fLFkfr esa iathd`r Lokeh ^^ ek¡^^ dh vuqefr ls mldk iq= okgu pyk jgk Fkk vkSj mlds ikl Mªkbfoax ykbZlsal Hkh Fkk vr% orZeku izdj.k esa mls Mªkboj dh Js.kh esa ugha j[kk tk ldrkA vihykFkhZ dh vksj ls izLrqr uthj esa izfrikfnr fl)ku dk ykHk orZeku izdj.k esa mUgsa izkIr ugha gSA ;g Hkh mYys[kuh; gS fd ikfylh esa bl vk'k; dh fuEufyf[kr /kkjk Hkh gSA
Persons or Class of persons entitled to drive:
Any person including insured provided that a person driving holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective learner's licence may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rules, 1989.
vr% bl rF; dks ns[krs gq, fd iathd`r Lokeh dk iq= tks okgu pyk jgk Fkk vkSj ftlds ikl Mªkbfoax ykbZlsal Hkh Fkk fu'p; gh okgu pykus ds ft, vf/kd`r Fkk vkSj ,slk fLFkfr esa ihB bl fu"d'kZ ij igq¡prh gS orZeku izdj.k esa ftyk eap n~okjk tks vkns'k ikfjr fd;k x;k gS mlesa fdlh izdkj dh =qfV gksuk ugha ik;k tkrk gS rn~uqlkj vihy [kf.Mr fd;s tkus ;ksX; gSA
vkns'k
vihy [kf.Mr dh tkrh gSA ftyk Qksje n~okjk ikfjr fu.kZ; vkSj vkns'k dh iqf"V dh tkrh gSA
(emphasis supplied)
This revision has been filed by the insurance co. under section 21 (b) of the Act 1986 against the said Order dated 03.11.2017 of the State Commission.
We have heard the learned counsel for the revisionist - insurance co. and perused the material on record.
Section 21 (b) of the Act 1986 reads as below:
.....to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
The State Commission's Order dated 03.11.2017 is well-appraised and well-reasoned. The State Commission concurred with the District Forum. Within the meaning and scope of section 21(b), grave error in appreciating the evidence by the two fora below, as may cause to require re-appreciation of the evidence in revision, is not visible. On the face of it, a jurisdictional error, or a legal principle ignored, or miscarriage of justice, is not visible.
There is no reason evident to interfere with the concurrent findings of the District Forum and the State Commission in respect of deficiency in service.
That the accident occurred is admitted. That the son of the registered owner (mother) was driving the vehicle is admitted. That he was a major and had a valid driving licence is admitted. That he died in the accident is admitted. That personal accident cover of 'owner - driver' was provided in the insurance policy is admitted. That the registered owner (mother) paid Rs. 50/- additional premium for this cover is admitted. That premium was duly paid is admitted. That the policy was valid is admitted.
The only point of dispute is interpretation of 'owner - driver.'
The contention of the complainants (father and mother of the deceased son) is that the term 'owner - driver' included the owner as well as their son who was driving the motorcycle with the consent of the registered owner - premium payer - mother and was a major and had a valid driving licence.
The contention of the insurance co. was that the phrase 'owner - driver' meant only the owner herself driving, not anyone else.
We find it difficult to agree with the insurance co.'s contention.
We may note that the economic status of a lady / family purchasing but a motorcycle would not be very enviable. This is the case of a lady who purchased a motorcycle in a district like Mainpuri in the State of Uttar Pradesh. The terrain is difficult, the ordinary residents / consumers of the area are simple, innocent, hard-working. A lady purchasing a motorcycle in her registered name would in all probability be purchasing it for her husband's and / or son's and / or brother's etc. males' use, especially in a district like Mainpuri in the famed Chambal region of Uttar Pradesh. Again, the lady paying an extra premium of Rs. 50/- for personal accident cover would in all probability be doing so out of concern and fear for her husband and / or son and / or brother etc. males.
The term 'owner - driver' is in itself ambiguous and unclear. In case it was meant to construe only the owner-cum-driver herself driving, the same should have been unambiguously and clearly stated in the insurance policy. As would appear to a reasonable person, the proposition intended to be conveyed and understood was that the owner as well as the driver will be covered under the policy (and especially if the registered owner buying that policy was a lady and the subject vehicle was a motorcycle and the area in which the lady resided was a district like Mainpuri in the Chambal region of Uttar Pradesh).
The onus was on the insurance co. to make its terms and conditions unambiguous and clear ab inito, at the time of selling the policy to the registered owner - buyer.
An argument could be raised that the gender, economic and regional profile are misplaced and erroneous in examination on facts and law. In our considered view, such argument would itself be misplaced and erroneous. We are dealing with consumer justice, in recognizedly a fight between unequals, an ordinary simple consumer of an unenviable economic status of a gender that generally does not use a motorcycle in an unenviable region like Chambal versus an established pan country insurance co. that first keeps its term 'owner - driver' ambiguous and vague, and then comes forth with its own interpretation of its own term after the accident and death and after the claim is made, and then repudiates the claim at its own end on the basis of its own interpretation. Consumer justice delivered with eyes closed towards the gender, economic and regional profile in a case of such facts and specificities could lead to miscarriage of justice. We have consciously included this element in our examination, knowing fully well that it can be attempted to be misconstrued and agitated. But such fears cannot be a consideration for not appraising the case in right context and perspective.
Notwithstanding the factor of gender, economic and regional profile, on the this one factum alone (repeat, on the this one factum alone) that an ambiguous and unclear term 'owner - driver' was kept in the policy at the time of selling the policy, additional premium was charged for the personal accident cover, the term was not made unambiguous and clear ab initio, the onus was on the insurance co. to make its term unambiguous and clear ab inito, coming forth with its own interpretation of its own (ambiguous and unclear) term after the accident and death occurred and after the claim was made, disposing of the claim at its own end on the basis of its own interpretation of its own (ambiguous and unclear) term, amounts to unfair trade practice.
In our considered view, the insurance co. has indulged in both, deficiency of service, as determined by both the two fora below, and unfair trade practice, as determined in paras 11 to 20 above.
In so far as deficiency of service is concerned, the District Forum has made its award and the State Commission has upheld it. We, too, uphold and sustain the same.
In so far as unfair trade practice is concerned, we direct that the insurance co. shall discontinue its unfair trade practice and shall make its term 'owner - driver' unambiguous and clear in its future insurance policies. A report - in - compliance shall be submitted by the chief executive of the insurance policy to this Commission within three months.
In respect of just and equitable compensation for indulging in unfair trade practice qua the complainants/nominee(s) in this instant case, we note that after buying the personal accident cover with extra premium in good faith as ordinary simple consumer, and after the death of her major son in accident, the registered owner - mother(and also the father) were made to undergo litigation in one, two, three consumer fora, one after the other, after first rejecting the claim with mechanical application of 'rules' and without the due and conscious application of mind and coming forth with its own interpretation of its own ambiguous and unclear term after the accident and death occurred and after the claim was made, and repudiating the claim at its own end on the basis of its own interpretation and considering the loss and injury, continuous harassment and difficulty, the insurance co. shall pay in addition compensation of Rs.2,00,000/- with interest at the rate on fixed deposit in the corresponding period in any one scheduled nationalized bank in the corresponding period from the date of filing the consumer complaint in the District Forum (the second consumer complaint referred to in para 4 above) till the date of actual payment to the nominee(s), latest within four weeks. The rate of interest at the rate on fixed deposit in the corresponding period of any one scheduled nationalized bank shall be ascertained by the insurance co.
And consumer justice in the true sense has to be met. Once the amount awarded for deficiency in service and the amount awarded in addition for unfair trade practice are adjudicated and determined, the onus is on the insurance co. to be prompt and dutiful in making the necessary payments within the stipulated time. Creating yet further harassment, uncertainty and difficulty for the ordinary simple consumer by delaying payments or making reduced payments etc. (if the adjudication is not stayed or quashed or modified by a higher authority / court) will be an unacceptable situation, to be viewed seriously - the harassment, uncertainty and difficulty of the consumer should end promptly and fully, the chapter should close. Therefore, if the insurance co. delays the adjudicated payments beyond the time stipulated, it would and should attract higher / penal interest and other compensation / costs, which will be determined by this Commission if the contingency so arises. And the unfair trade practice must end promptly and fully. Therefore, if the insurance co. delays the re-articulation of its policies on this subject within the stipulated period of three months, as directed, it would and should attract higher / penal interest and other compensation / costs, which will be determined by this Commission if the contingency so arises. (Attention is also specifically drawn to section 25 and section 27 of the Act 1986.)
Further, in case the award made by the District Forum for deficiency in service vide its Order dated 13.02.2014 is not made good within four weeks and / or the compensation awarded in addition for unfair trade practice vide para 24 of this Order is not made good within four weeks, the District Forum shall proceed for execution as per the law, both for enforcement under section 25 and for penalty / punishment under section 27 of the Act 1986.
A copy of this Order be sent to the chief executive of the insurance co. within seven days by the Registry.
A copy of this Order be sent to the District Forum within ten days by the Registry.
A copy of this Order be sent to the complainants within ten days by the Registry.
The revision petition is disposed of with directions as contained in paras 22, 23, 24, 25, and 26 above. (We clarify that the awarded amounts shall be made to the nominee(s).)