IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA

Dated this the 23^rd day of June, 2010.

Present : Sri. Jacob Stephen (President):

Smt. C. Lathika Bhai (Member)

                                                                  Sri. N. Premkumar (Member)

C.C.No.84/09 (Filed on 17.06.2009)

Between:

Satheeshkumar,

Velamparampil Veedu,

Tholasseri Muri,

Thiruvalla.

(By Adv. Sunitha.K.K)                                                    …      Complainant.

And:

The Divisional Manager,

Oriental Insurance Co. Ltd.,

Marthoma Building,

T.K. Road,

Thiruvalla.

(By Adv. Sam Koshy)                                                     …      Opposite party.

O R D E R

Smt. C. Lathika Bhai (Member):

                   The complainant has filed this complaint against the opposite party for getting a relief from Forum.

                   2. The facts of the complaint is as follows:  The complainant is the registered owner of the KL.03-3393 Yamaha Libero Motor Bike.  The above said vehicle was insured with the opposite party vide policy No.441900/31/2009/1540.  The complainant had paid an additional amount of Rs.50/- for the premium for Personal Accident cover envisaged as per the policy.  As per the personal accident cover the owner of the insured vehicle is entitled to get an amount of Rs. 1 lakh as compensation for personal accident from the opposite parties.  On 5.7.08 the complainant along with his wife and daughter travelling by the above said insured bike through Thiruvalla-Kozhencherry public road when a car trying to overtake an autorikshaw then the car hit on the front right side of the Motor bike and the complainant, his wife and daughter fell on the road and the complainant had sustained the injuries stated here under.

1.     Fracture lateral condyle right tibia with PCL fragment avulsion corporate and percutaneous screw fixation done.

2.     Loss of tip of little finger with fracture of P3 right hand.

3.     Fracture of right proximal fibula.

4.     Extensive abrasion on foot and ankle, leg and knee area right.

5.     Irregular lacerated wound on plantar aspect of right foot.

6.     Multiple abrasions all over the body with pain.

                   3. Due to the accident the complainant had became 20% permanent disability and he had spend an amount of Rs.30,000/- for the treatment.  The Koipuram police had registered a crime on 6.7.08 in connection with the accident.  The complainant is entitled to get a compensation for the treatment expenses and his mental agony and disability from the opposite party as per the policy.  The complainant approached several time to the opposite party for getting the compensation.  But they are not taken any steps to settle the matter hence he filed this complaint for getting an order for directing the opposite party to pay Rs.1 lakh with interest as compensation for his treatment expenses, mental agony and other inconveniences along with cost.  The complainant prays for granting the reliefs.

1.     Death                                                               100%

2.     Loss of two lips or sight or two eyes

Or one limb and sight of one eye                       100%

3.      Loss of one limb or sight of one eye                 50%

4.     Permanent Total Disablement from

The injury sustained to the complainant does not fall under any f the category.  As per Clause IV in the above permanent total disablement means 100% physical disability.  Hence he is not entitled to get personal accident claim benefit under the policy.  There is no deficiency in service from the part of opposite party hence the opposite party prayed for the dismissal of the complaint.

         5. The main point to be considered in this case is that whether this complaint is maintainable before the Forum?

                   6. The evidence in this case consists of the proof affidavit and four documents filed by the complainant from his side.  On the basis of the proof affidavit, documents produced are marked as Exts.A1 to A4.  For the opposite party, the opposite party had filed a proof affidavit and Ext.B1.  After closure of the evidence, both sides heard.

                   7. The complainant’s case is that he is the registered owner of KL.03-M/3393 Yamaha Libero Motor Bike, which was insured with opposite party.  During the policy period, the above said vehicle met with an accident and injuries sustained to the complainant, his wife and his daughter.  Due to the accident, the complainant’s right leg become fractured and he was hospitalized and became 20% permanent disability.  For the treatment he had spent an amount of Rs.40,000/- and the complainant is entitled to get an amount of Rs. 1 lakh as compensation as per the personal accident cover envisaged in the policy.  The complainant approached the opposite party for getting the compensation, but they did not take any steps to settle the matter.  Hence he filed this complaint for getting the reliefs as sought for in the complaint.

                   8. In order to prove the complainant’s case, he filed an affidavit and Exts.A1 to A4.  Ext.A1 is the Accident Register Cum-Wound Certificate issued by Muthoot Medical Centre, Kozhencherry.  Ext.A2 is the insurance policy certificate issued by the opposite party to the complainant’s vehicle.  Ext.A3 is the disability certificate issued by the Medical Board, Pathanamthitta to the complainant.  Ext.A4 is the copy of final report.

                   9. According to the opposite party, the main contention is that the complainant has not lodged any claim before the opposite party as per the policy terms and conditions for getting compensation.  Further the injury sustained to the complainant does not come under the purview of the injuries specified in the policy condition.  Hence they are not liable to pay any compensation to the complainant.

                   10. In order to prove the contentions of opposite party, the opposite party has filed a proof affidavit and Ext.B1.  Ext.B1 is the terms and conditions of the two-wheeler package policy taken by the complainant.

                   11. On going through the evidences in this case, the materials on record shows that the opposite party had issued a two-wheeler package policy to the complainant.  During the coverage period, the complainant had sustained serious injuries and he was treated in Muthoot Medical Centre.  After the accident he had a disability of 20%.  According to the complainant, he is entitled to get compensation as per the conditions of the policy issued to him.

                   12. The main contention of the opposite party is that the complainant has not lodged any claim before them as required by the terms and conditions of the policy.  The complainant has not produced any evidence to show that he had filed a proper claim before the opposite party for getting the compensation as per the personal accident cover envisaged in the policy and it was repudiated by the opposite party.  The materials on record does not shows the complainant had filed a proper claim before opposite party.  The cause of action for a complainant will arise only after repudiating the claim of the complainant by the opposite party.  Without a repudiation of a claim of the complainant by opposite party, the complainant had no cause of action for filing complaint and hence the complaint is not maintainable before the Forum.  Therefore, the complainant’s prayer cannot be allowable.

                   13. However on considering the facts and circumstances and quantum of expenses and disability sustained to the complainant, the complainant is allowed to file a fresh claim before the opposite party with sufficient documents as required by the policy terms and conditions before the opposite party within two weeks from the date of receipt of this order.  The opposite party is directed to accept the claim form from the complainant, without considering the delay in filing the claim, for taking necessary steps as per the policy condition. 

                   14. In the result, this complaint is dismissed with the above direction.  No cost.

                   Declared in the Open Forum on this the 23^rd day of June, 2010.

                                                                                                               (Sd/-)

                                                                                                C. Lathika Bhai,

                                                                                                     (Member)

Sri. Jacob Stephen (President)            :         (Sd/-)

Sri. N. Premkumar (Member)              :         (Sd/-)

Appendix:

Witness examined on the side of the complainant:  Nil

Exhibits marked on the side of the complainant:

A1     :  Accident Register Cum-Wound Certificate issued by Muthoot Medical 

            Centre, Kozhencherry to the complainant. 

A2     :  Insurance policy certificate issued by the opposite party to the 

            complainant’s vehicle. 

A3     :  Disability certificate issued by General Hospital, Pathanamthitta to the 

             complainant. 

A4     :  Copy of final report dated 6.7.08 issued by Koipuram Police Station.

Witness examined on the side of the opposite parties:  Nil

Exhibits marked on the side of the opposite parties:

B1     :  Terms and conditions of the two wheeler package policy.

                                                                                                (By Order)

                                                                                      Senior Superintendent.

Copy to:- (1) Satheeshkumar, Velamparampil Veedu, Tholasseri Muri,

 Thiruvalla.

      (2) The Divisional Manager, Oriental Insurance Co. Ltd.,

                      Marthoma Building, T.K. Road, Thiruvalla.

                (3)  The Stock File.