COMPLAINT FILED ON:15/03/2023
DISPOSED ON:03/04/2023
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.
CC.NO:28/2023
DATED: 3rd April 2023
PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT
Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER
COMPLAINANT | 1). Sri. Mahaswamy S/o Rudrappa Aged about 63 years 2). Smt. Savitramma W/o Mahaswamy Aged about 58 years, Both are R/o Bangarakkanahally Village, Chitradurga Taluk, Chitradurga district. (Rep by R.N.Parthalingapppa, Advocate,) |
V/S |
OPPOSITE PARTIES | - IFFCO TOKIO General Insurance Co.Ltd
By it Branch Manager IFFCO TOKIO General Insurance Co.Ltd., Door No.7/432, K.B. Extension, Lawyer Road, Davanagere-577002. 2. Sri. Ganesh S/o Basave Gowda, Major, Owner of Motor cycle bearing Reg.No.KA-13/S-5467, R/o Moodalingana Koppalu Kalyadi Post, Arsiker Taluk, Hassan Distirct. 3. Smt. Geetha.G.R W/o Late M.Kumara Swamy, Aged about 36 years, R/o Bangarakkanahally Village, Chitradurga Taluk,Chitradurga district. |
: ORDERS ON MAINTAINABILITY OF COMPLAINT :
By Smt. B.H.YASHODA, B.A., LL.B., LADY MEMBER.
Complainant has filed this complaint section 35 of the consumer Protection Act, 2019 against opponents and prays before this commission to pass orders by directing OP's No.1 to 3 P.A. for owner driver benefit for Rs.15,00,000/- amount along with 18% interest per annum Rs.50.000/- towards damages for mental agony, loss of income and Rs.10,000/- towards cost of this complaint and such other reliefs as deemed fit by this Hon'ble Commission.
The Brief facts of the complaint:-
That the complainant No.1 is the father and complainant No.2 is the mother and opponent No.3 is the wife of deceased Late M.Kumara Swamy S/o Mahaswamy and the said Late Kumara Swamy S/o Mahaswamy was aged about 37 years, married and he was died on 09/03/2022 which the accident was occurred on 09/03/2022 at about 12:15 AM which occurred near Davangere-Chitradurga Road, infront of Reddy Petrol Bunk, Near Lakshmisagara Village, Chitradurga Taluk.
2. That the complainants are the legal heirs and legal dependants of deceased M.Kumara Swamy S/o Mahaswamy and the said M.Kumara Swamy S/o Mahaswamuy was travelling in Motor cycle bearing Reg. NO.KA-13/S-5467 on 09/03/2022 at about 12:15 AM by driving the vehicle near Davanagere – Chitradurga Road, infront of Reddy Petrol Bunk, Near Lakshmisagara Village, Chitradurga Taluk in the limits of Bharamasagara Police, the said vehicle was met with accident and in the said accident M.Kumara Swamy S/o Mahaswamy has died due to accidental injuries on 09/03/2022. The vehicle bearing Reg. No.KA-13/S-5467 has been insured under vide policy No.MO008799 for the period 16/02/2022 to 15/02/2023 and the said policy covers PA claim for owner cum driver and that opponent has collected a premium of Rs.350/- for personal accident. After the said accident, complainants have intimated to opponent No.1 company through phone regarding the accident and asked for PA claim of Rs.15,00,000/-. Even inspite of complainants intimation to opponent No.1 authority is still pending, hence opponent No.1 has been called upon to pay the PA claim to complainants.
3. That on 18/01/2023 the complainants have issued legal notice to the opponent No.1 calling upon the opponent No.1 to pay the PA claim of Rs.15,00,000/- and along with the notice the complainants enclosed certified copy of FIR. Hahzar, IMV Report, PM Report, Inquest Report, RC, DL, Abated charge sheet, Bank Pass book and policy copy for settling the PA claim of Rs.15,00,000/- and the said notice has been served to the opponent on 20/01/2023. Even inspite of notice has been served to the opponent No.1, the opponent No.1 never settle the claim and also they have not replied to the said notice.
4. After that the complainants have visited number of times to the Branch Office, at Davanagere for settlement of the claim, but opponent No.1 has never settle the claim of the complainants the reasons best known to them. That the opponent No.2 is the owner of the vehicle and that the deceased M.Kumara Swamy S/o Mahaswamy has borrowed the Motor cycle bearing Reg.No.KA-13/S-5467 from Opponent No.2 on 09/03/2022 and the deceased M.Kumara Swamy S/o Mahaswamy has been stepped into the shoes of owner and the opponent No.2 has made a party to the complaint since opponent No.1 has issued policy in favour of opponent No.2. Hence both the opponents are held liable for payment of compensation to the complainants.
5. That the opponent No.3 is the wife of deceased M.Kumara Swamy S/o Mhahaswamy and the opponent No.3 is not ready to file the petition along with the complainants, hence she has been made as opponent No.3 for the claims.
6. The cause of action for this complaint has arose on 09/03/2022 the date of accident and also the date of death of deceased M.Kumara Swamy S/o Mahaswamy and also on subsequent date that on 18/01/2023 the date on which the complainant has issued legal notice and also subsequent date like 20/01/2023 the date on which notice has been served to the opponent No.1, Hence, this complaint has been filed before this Hon'ble Commission seeking prayer as prayed in his complaint.
7. Ho'ble Commission observed this complaint, and documents, it is necessary the point regarding the aspect that whether the complainant is a consumer within the definition of section 2(7) of the Consumer Protection Act, 2019 and whether any deficiency in service on the part of opponents. Hon'ble commission observed the facts of the complaint which clearly discloses that complainant is not a consumer of opponents. Such being the reason, complainant is not coming under definition of Consumer Protection Act, 2019.
As per section 2(7) of Consumer Protection Act, 2019 'Consumer mean any person…
i) Buy any goods for a consideration which has been paid or promised or partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promise, or under any system of deferred payment, when such service are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose… in this case, the deceased not a owner cum driver of the vehicle.
8. Complainant submitted the citation in the Hon'ble Supreme Court of India, Ramkhiladi and another V/s The united India insurance company and another Civil Appeal No.9393 of 2019, this citation is not applicable to this complaint.
09. Hence, as discussed above the complaint is not maintainable before this commission and accordingly, we proceed to pass the following
:: ORDER ::
The complaint filed by the complainant is not maintainable before this Commission for adjudication on maintainability and hence the same is hereby rejected.
(Dictated to the Stenographer, typed by him, the transcript corrected, revised and
then pronounced in the open commission by us on 03rd April 2023.)
Sd/- Sd/-
LADY MEMBER PRESIDENT
