At, Delhi State Consumer Disputes Redressal Commission New Delhi
By, THE HONOURABLE MR. O.P. GUPTA
By, MEMBER (JUDICIAL)
For the Appearing Parties: --------------
1. The OP has come in the present appeal against order dated 17.01.19 passed by District Forum (New Delhi) in CC no.825/2009 vide which the complaint was allowed and the appellant was directed to pay Rs.1,94,480/- being the value of (2842 Euro + 150 Euro) at exchange rate of 1 Euro = Rs.65. Appellant was also directed to pay Rs.20,000 on account of litigation cost. In case the appellant failed the comply with the order within 30 days from receipt of copy of order, it was also liable to pay interest @9% p.a. from the date of order till actual payment.
2. Facts which can be gathered from the impugned order are that the complainant took insurance for its employee visiting foreign country in accordance with its requirement, from the OP/ appellant. The validity of the policy was from 25.08.08 to 24.08.09. The coverage of the policy was unexpected medical expenses, loss of passport/ baggage expenses and certain personal liability. Cover for medical expenses was to the tune of Rs.30,000/- per official per visit whereas cover for personal liability to the tune of Rs.1 lakh dollar. Shri Tariq Hussain Butt one of the officials of the complainant company visited Athens sometime in the month of November, 2008. He left for Bahrain and then for Athens in company with his colleague Mr. Lokesh Matta. He reached Athens on 11.11.08. From there, on reaching Aegina in order to facilitate local travel, Mr. Tariq Hussain Butt hired a car under the rent-a-car scheme. The car was being driven by Mr. Tariq Hussain Butt. Unfortunately the same met with an accident and was substantially damaged. The company from which car was hired / charged 2842 Euro towards damage of the car.
3. The complainant lodged claim with the OP for total value of 3063 Euro plus bank charges. The same was rejected by OP on false and frivolous ground.
4. The OP filed WS stating that loss was caused due to negligence and carelessness of the employees of complainant. Under the terms and conditions of the insurance policy, clause 5 (b) contained exclusion clause pertaining to personal liability and prayed for dismissal of the complaint.
5. Both the parties filed evidence by affidavit. After going through the material on record and hearing in the arguments, the District Forum came to the conclusion that OP issued policy, as per policy clause of personal liability, it ought to have made the payment. The policy was in existence and the official of the complainant was on a trip abroad. All the conditions mentioned in personal liability clause were completed. Repudiation under exclusion clause was unjustified because the case of the complainant did not fall in any of the category mentioned in the exclusion. Accordingly it allowed the complaint.
6. In appeal the contention of the appellant is that respondent was given an opportunity to report any discrepancies in the policy and its wordings. However the respondent had never complained about terms of the policy till the filing of the complaint. The expenses incurred by respondent were due to negligence on the part of insured person. It has reproduced the exclusion clause which reads as under:-
“The company would not be liable to make any payment under this benefit in connection with or in respect of any expenses whatsoever incurred by the insured person (s) in connection with or in respect of:- (5) Any claim for liability arising directly or indirectly from or due to: (b) The ownership or possession of vehicles, aircraft, water crafts, or activities of the insured person (s) involving parachuting, hand gliding, hot air ballooning or use of firearms)”.
7. The respondent in his complaint filed before the District Forum stated that vehicle was used by insured person as a passenger and thus the exclusion clause was not applicable. However as per the claim form submitted by insured person, he was not travelling in the vehicle as a passenger but was driving the vehicle.
8. The District Forum committed a grave error by ignoring the fact that losses occurred due to possession of the vehicle which comes under exclusion clause. The vehicle was driven beyond its destination for which insurance cover was provided. Accident occurred at Aegina Marine which is on an Aegina island and located 27 kms from Athens. Thus the insurance policy did not cover place of the accident.
9. In Suraj Mal Ram Niwas Oil Mills vs. United India Insurance Company Ltd. (2010) 10 SCC 577 it was held that in construing the terms of contract of insurance, the words used must be given paramount importance, and it is not open for the court to add, delete or substitute any words. In General Assurance Society ltd. (1966) 3 SCR 500 Constitution Bench of Hon’ble Supreme Court observed that in interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves, In United India Insurance Company Ltd vs. M/s. Harchand Rai Chandan Lal, IV (2004) CPJ 15 it was held that terms and policy had to be construed as it is and court cannot add or subtract something.
10.The respondent has filed a reply raising preliminary objections that appeal is gross misuse of process of law, is without any legal basis. On merits it stated that contract of insurance entered into between the parties was overseas corporate travel policy meant to cover expenses of the respondent to meet medical expenses and certain personal liability. The policy consisted of personal liability clause which reads as below:-
11. “The company will compensate the insured person(s) in the event the insured person become legally liabile to a third party under statutory liability provisions in private law for an incident which results in death, injury, damage to the health of such party or damage to his or her properties, but not exceeding the sum insured specified in part one of the schedule to this policy and provided the incident occurs during the period of insurance and whilst trip abroad.”.
11. The appellant is deliberately misguiding this Commission by placing wrongful reliance on exclusionary clause. It has been repeatedly held by Hon’ble SC that when ambiguity appears in interpreting multiple clauses of an insurance contract, then the interpretation which is beneficial for the insured shall be adopted.
12. I have gone through the material on record and heard the arguments. At the very outset I may mention that counsel for the appellant did not press plea taken in ground VI of the grounds of appeal that vehicle was driven beyond the destination for which the insurance cover was provided. So the controversy remains confined to one plea only as to whether the case was covered under exclusionary clause or not.
13. Perusal of the impugned order reveals that the District Forum did not advert to the exclusionary clause at all. It simply perused the clause pertaining to personal liability and allowed the complaint.
14. The counsel for the appellant submitted that words “or possession of vehicle” as underlined by me above and mentioned in clause 5(b) of the exclusion clause are very relevant. The word ‘possession’ is intended to refer to the driver of the vehicle. The reasons is that vehicle can be said to be in possession of driver. A person simply sitting on the back seat as a passenger cannot be said t
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o be in possession of the vehicle. Since the respondent himself mentioned in the claim form that he was driving the vehicle, it is obvious that he was in possession of the vehicle. . Once it is concluded that he was in possession of the vehicle, the exclusion clause comes into picture. 15. Counsel for the appellant also submitted and rightly so that if there is an any ambiguity policy has to be interpreted in favour of the insured. But in the present case there is no ambiguity. The words are clear and matter is covered under exclusion clause. 16. For the foregoing reasons the appeal is accepted, impugned order is set aside and the complaint is dismissed. 17. Copy of the order be sent to both the parties free of cost. 18. One copy of the order be sent to District Forum for information.