.::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL COMMISSION AT BIDAR::

                                                    C.C. No.58/2022.

                                                                                Date of filing: 02.07.2022.

            Date of disposal:29.03.2023.   

P R E S E N Ts:-

 (1) Shri. MabuSahebH.Chabbi,                                                                              
                                             B.Com.,LL.B.,(Spl.),

                                                               President.,

(2)Kum. Kavita,

                                                   M.A.,LL.B.,(Spl.),

                                                            Member.

         (3) Shri.Thriyambakeshwara,

                                                                        B.A.,LL.B.,(Spl.), 

                                                                                           Member.

COMPLAINANT/S                 1.       Sangmithra Melkunde S/I Revanappa
                                                       Melkunde, Age:42 years,
                                                       Occ:Private Business,

                                                       R/o #17-2-327, Laxmi Nivas Gandhi Nagar
                                                       Colony Mailoor Road Bidar-585401.                                                 

                                                       (By Smt.Padma M. Adv.)                                        

                     V/s

OPPONENT/S                       1.  IFFCO-TOKIO, General Insurance

                                                      Company Ltd. Through its Manager, 
                                                      Havappa Complex,No.200, 202,
                                                      Udgir Road, shivnagar South Bidar, 
                                                      Karnataka-585401.                                                           

                                                          (By Sri.S.Wilson, Adv.)

                                                                                ::J U D G M E N T::

By. Sri.Thriyambakeshwar,  Member.

The complainant approached this Commission by filing complaint U/sec 35 of the Consumer Protection Act, 2019, against the opponent alleging deficiency in service in not settling the P.A. claim by OP for the disability suffered by him in an accident.  Hence, passed the following judgement.

Brief facts of the complaint.                                                                  

The brief facts of the complaint are summarized as follows: -

1.         That the complainant is a Private Businessman and permanent resident of Bidar. He owned a four wheeler 120 Car bearing No. KA 38 N0636 in the year 2011 for his and his family use.   The said Car was insured with OP in policy bearing No. P400 policy # MH4055 which was valid from 18-12-2020 to midnight 17-12-2021.  It was on 24-3-2021, the complainant with his driver Shamel Shankreppa Halge, who was having valid and competent D.L. went to Kolhapur on his personal work, and while he was returning from Kolhapur to Bidar on the same day at 2 'O' clock, and when the Car came near new toll gate near village Inchgaon Tq Mohal Dist Solapur (MH), the complainant’s driver drove said car in high speed and rash and negligent manner and thereby lost the control over the Car and due to which car turtle and fell down on the road side.  The complainant suffered grievous injuries on head and other parts of the body. The driver ran way from the spot.  Later the said accident was registered on the file of Kamti Police in FIR No. 0076 on 07-4-2021 by complainant’s father as the complainant was in Coma and under treatment in a hospital at Hyberabad.  The complainant was shifted in Govt Ambulance to CNS Hospital Solapur in an unconscious condition and later he was shifted to Shree Hospital Bidar and thereafter he was shifted to KIMS Hospital Kondapur Hyderabad, wherein he has been impatient for near about 6 to 7 days and spent nearly 11 Lakhs for his treatment and still he is not recovered and suffered a permanent disability.  Besides the personal injuries the Car of the complainant also damaged. The damaged expense was estimated about 2 Lakhs.  It is submitted that, the father of the complainant orally informed to the OP and thereafter personally visited the office of the OP by requesting to pay the compensation in the terms of policy. The OP falsely assured to the father of the complainant stating that, he would pay if all the documents pertaining to the injury is produced. On those days as there was a second wave of Covid-19 in all over the Country, so there was some delay caused due to restrictions of District Administration. In spite of production of all medical documents and Police records no steps were taken by the OP in settling the claim. Therefore, the complainant issued legal notice through his counsel to OP on 27-01-2022. In spite of service of the notice, OP did not pay any compensation amount to the complainant nor given any reply to the notice issued by the complainant. In this way there is a deficiency in service and unfair trade practice by the OP.

Written Version of OP.

2.         That, subsequent to service of notices on OP by this commission on 08.07.2022, he remained absent on 30.07.2022 before this commission hence, he was placed ex-parte.  Again he moved application u/o 9 Rule 7 on 26.09.2022, and filed power however despite several adjournments within the stipulated period, he did not file W.V, hence, his W.V. taken as nil on 25.11.2022, and thereafter proceeded with the evidence of complainant in the above case.  

Evidence of complainant.

3.         The complainant lead, his evidence as P.W.1 and got marked Ex.P.1 to Ex.P.16 which are as follows,

1. Ex.P.1&1(a)-True copy of FIR dated 07.04.2021 in Marathi Language along with translated copy of FIR.
2. Ex.P.2&2(a)-True copy of final report in Marathi Language along with translated copy.
3. Ex.P.3&3(a)-True copy of crime details for in Marathi Language along with translated copy.
4. Ex.P.4&4(a)-True copy of mechanical certificate in Marathi Language along with translated copy.
5. Ex.P.5&5(a)-True copy of injury certificate requisition M.O. CMS Hospital Solapur, in Marathi Language along with translated copy.
6. Ex.P.6&6(a)-True copy of notice to Car driver in Marathi Language along with translated copy.
7. Ex.P.7&7(a)–True copy of statement of complainant before Kamti P.S. in Marathi Language along with translated copy.
8. Ex.P.8&8(a)-True copy of father of complainant before Kamti P.S. in Marathi Language along with translated copy.
9. Ex.P.9- Original bills (16 pages).
10. Ex.P.10-True copy of medical legal certificate.
11. Ex.P.11-Copy of Insurance certificate.
12. Ex.P.12-Copy of R.C.Extract.
13. Ex.P.13-Copy of D.L. of complainant Car driver.
14. Ex.P.14-Aadhar Card of complainant.
15. Ex.P.15&15(a)-Legal notice dt:27.01.2022, along with postal RPAD receipt.
16. Ex.P.16-True copy of disability card.

4.         This Commission heard complainant and perused the evidence affidavit and documents on record, hence the points/issues arose for our considerations are as follows.

Points/Issues.

1. Whether the complainant/s proves that, he is the consumer to Op and further any deficiency in service on the part of OP?
2. Whether the complainant is entitled for any relief/order? If so, What orders? 

5.         Our answers to the points raised above are as follows: -

1. In the affirmative.
2. As per the final order.

6.         In order to decide the complaint issues, this commission discussed points/issues No.1 and 2 altogether for discussion as both points are inter related to each other- as follows.

7.         In order to prove the case of the complaint, the complainant lead his evidence as P.W.1 and got marked Ex.P.1 to Ex.P.16 on his behalf.  The OP despite service of notice on 08.07.2022, he remained absent on the date of appearance.  Hence, he was placed ex-parte and thereafter
ex-parte setting aside application u/o IX Rule 7 was filed and despite getting number of adjournments, OP did not file his W.V. hence, his W.V. was taken as nil on 25.11.2022.  Therefore, despite having knowledge of the complaint averments, he did not contest the same by filing his W.V.  Hence, it is deemed that, OP is admitted the case of the complainant. 

8.         On Perusal of the pleadings and evidence of complainant, it is corroborated with other documentary evidence on record in support of his claim.  It is noticed that, Ex.P.12 is the registration certificate extract showing ownership of complainant over Car No.KA-28N0636, which is the vehicle in question met with accident corroborated with the same registration number in ExP.1 and 1(a) FIR, where in at serial No.9 column the same Car No. is shown as car met with accident.  The same is also finding in place in Ex.p.2 &2(a) at last page No.6.  Therefore, it is proved that, car of the complainant met with accident on the shown place date and time due to negligence of the his car driver who is having valid and competent license as per Ex.P.13. 

9.         The pleading of the complainant at Para No.5 regarding insurance of the Car with OP policy bearing No.P400 policy No.MH405506 is corroborated with insurance certificate at Ex.P.11 issued by OP showing P.A. premium of Rs.325/- received by OP under the head of P.A. for owner driver for capital sum insured of (CSI) Rs.15,00,000/-.  However, on perusal of the second page of Ex.P.11, there is no premium collected by OP for any medical expenses going to be incurred by complainant.  Therefore, it is proved beyond doubt that, the complainant is the owner of Car No.
KA -28M 0636 and the same is insured with OP in insurance policy at Ex.P.11 for the period 18.12.2020 to 17.12.2021, which was in force as on date and time of accident on 24.03.2021.  Hence complainant is proved as complainant/consumer to OP.  Even further on perusal of the Ex.P.13 also it is proved that, the driver in question who was on wheels at the time of accident is also having competent and valid D.L. for driving the vehicle which met with accident in question. On perusal of the Ex.P.15 and 15(a) legal notice dated 27.01.2022 with postal receipt addressed to the OP by calling upon him to pay the compensation for the type of accident met by complainant also went in vain without any response to it by OP.  Therefore, if at all he was not satisfied with the contents of the legal notice, OP would have disputed the same by replying said notice which was not done by him.  Even if he was under requirement of any documents for processing the claim he ought to have called upon the complainant for producing required documents.  Therefore, when OP did not reply to said notice is deemed that, he is satisfied with the requirements of documents for processing the claim.  Under the said circumstance, the version of the complainant as contended in Para No.7 & 8, which is reiterated through his evidence affidavit corroborated with other documents on record stands un-rebutted by the OP, which amply proves that, the OP received the documents at a later stage of Covid-19 pandemic situation and hence, he did not reply to said legal notice of complainant by disputing the claim of complainant. 

10.           And now coming to question of disability suffered by complainant which is at Ex.P.16 showing 75 % of Locomotor disability (in common parlance of dictionary meaning is functional disability in lower limbs and arms also) which is permanent in nature which is issued by competent medical board.  The said certificate does prove that, the complainant suffered 75% of locomotor  permanent disability, which stands un-rebutted by OP, despite he had notice of the same through legal notice issued by complainant and even after perusal of the order sheet dated 26.09.2022, wherein OP endorsed for having received complaint copy and documents on record at the time of setting aside ex-parte order against him.  Therefore, despite having notice of claim of the complainant, he did not contest the claim of complainant in any manner by placing any cogent evidence in rebuttal of the claim of complainant.  Therefore, the non-denial of the averments of complaint by way of filing W.V. i.e., intentional non-filing of W.V. amounts to admission of the claim of complainant.  In this regard this commission gains judgment of Hon’ble National Commission reported in 2017 (4) 590 (NC) i;e Aegon Religare Life Insurance Co. Ltd  vs  Adari Laxmi holding that, “the intentional non-filing of W.V. amounts to admission of the entire complaint averments”.

11.       The complainant has claimed Rs.15,00,000/- for the disability suffered by him along with 18% interest apart from cost and compensation.  In this regard in order to prove the disability suffered by him except Ex.P.16 i.e., disability card showing 75% of permanent Locomotor disability is not rebutted by OP by challenging the same disability card subjecting the complainant for cross medical examination before any competent higher authority then issuing authority of said Card. Therefore, as the said disability card being issued by competent authority i.e., District Hospital this commission is not in a position to discard the said certificate unless there being any contra rebuttal evidence by OP.  Therefore, this commission inclines to accept the said Disability Card. In this regard this commission gains the judgment of Hon’ble NCDRC reported in II (2017) CPJ 247 (NC) i.e., Life Insurance Corporation of India and anr. V/s Ranjeet Singh-                       

Consumer protection Act, 1986- Sections 2(1)(g), 14(1)(d),21(b)-Insurance- Accident benefit-Permanent disability-Claim repudiated–Deficiency in service- District Forum allowed complaint-State Commission dismissed appeals-Hence revision-Certificate has been given by competent authority and cannot be disputed on ground that doctor of Insurance Company has not examined the insured- Insurance Company has the right to get the insured medically examined to assess the continuity of disability- Insurance Company is directed to pay Rs.25 lakh which is the maximum, allowable insurance amount under accident benefit be paid to complainant in monthly instatement of Rs.20,833/- spread over 10 years- installment be paid along with interest @6% p.a.- In case of discrepancy in medical report, matter would be resolved by referring to State Medical Board whose decision shall be final-Insured will also be entitled to waiver of premium as per terms and conditions of policy.

12.          That,  after going through the entire insurance certificate issued by OP at Ex.P.11, this commission did not find any terms and conditions stipulating the quantum of compensation payable to customers/victim policy holders under the above said circumstances of 75% Locomotor disability.  The terms and conditions printed in the Ex.P.11 in small letters, which requires highly powered magnifying glasses to read the same have been discarded as there are no such findings stating to consider the compensation payable to the injury suffered as per Ex.P.10 injuries shown in detail.  The Ex.P.9 also showing the treatment taken for above said injuries from 27.03.2021 to 31.03.2021.  When the policy is silent about payment of compensation for the kind of disability suffered by complainant as per Ex.P.16, and as there are no prescribed method of calculating amount for such disability under the C.P.Act 2019, this commission is left with no option in its vested discretion to award an amount of 75% of Capital sum insured as per Ex.P.11 P.A. coverage for owner driver Rs.15,00,000/-, which would justify the amount if awarded by this commission towards the nature of disability suffered by complainant under concept of non standard claim instead of putting an end totally to the claim of complainant.  In this regard this commission gains the judgment of Hon’ble NCDRC reported in, 2015(4) CLT 406 i:e R.P.No.1659 of 2015 DD 16.102015, Mahesh Maganbhai Trivedi Vs Divisional Manager, Life Insurance Corporation of India.

i). Consumer Protection Act, 1986 Section 2(1)g and workmen’s compensation Act,1923 section 2(1)(1)- Insurance claim-Permanent total disability weakening of lower limbs of insured due to injury suffered in accident-Insurance policy provided for payment of accident benefit if the insured was to get involved in an accident resulting in either death or permanent disability-insurance company repudiated the claim on the ground that the complainant had not suffered permanent total disability as defined in the policy-held-since both the lower limbs of the complainant have permanently weakened, he has become unfit to continue the job in which he was engaged at the time of the accident-The benefit of the policy cannot be denied to him on a hypothetical possibility of his being able to find some job or the other, which he can perform, despite permanent weakening of both his lower limbs-the complainant was duly entitled to the benefit available to an insured who suffered a permanent and total disability as defined in the insurance policy.

ii).        Consumer Protection Act 1986 Section 2(1)(g)-Insurance claim- Held-The provision for payment of accidental benefits being a beneficial provision needs to be construed rather liberally and if two views are possible, the court or the Forum must necessarily lean in favor of the interpretation which is favorable to the insured.

 Therefore, this commission is of the view that, in the absence of any rebuttal evidence by OP against to Ex.P.16, which stands un-rebutted due to non-contest of the complaint by OP deemed to have admitted the case of complainant and accordingly for the aforesaid reasons this commission is of the view that, if 75% of the CSI/capital sum insured of Rs.15,00,000/- under P.A coverage along with 6% interest from the date of Ex.P.15 legal notice dated 27.01.2022, to till realization along with compensation of Rs.10,000/- for the mental harassment suffered and Rs.5,000/- as cost of litigation is awarded, which would justify the claim of complainant. 

13.       Therefore, in the light of the above discussion, this commission is of the opinion that, the complainant proved his case for entitlement of getting P.A claim as stated above from OP along with interest and cost.  The Op failed to prove his case as discussed here in above. Hence, we answered point No.1and 2 in affirmative in favor of complainant and hence, we proceed to pass the following.

::ORDER::

The complaint is allowed in part along with cost.

The Ops are hereby directed to pay Rs.11,25,000/- (Eleven lakh twenty-five thousand only) i.e., 75 % of Rs.15,00,000/- along with interest @ 6% P.A from Ex.P.15 legal notice dated 27.01.2022, till realisation to complainant within 45 days from the date of this order along with cost of litigation/s Rs.5,000/- and Rs.10,000/- towards mental harassment and in-convenience suffered by complainant.

            Intimate the parties accordingly.

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Commission on this 29^th day of March-2023).

Documents produced by the complainant.

1. Ex.P.1&1(a)-True copy of FIR dated 07.04.2021 in Marathi Language along with translated copy of FIR.
2. Ex.P.2&2(a)-True copy of final report in Marathi Language along with translated copy.
3. Ex.P.3&3(a)-True copy of crime details for in Marathi Language along with translated copy.
4. Ex.P.4&4(a)-True copy of mechanical certificate in Marathi Language along with translated copy.
5. Ex.P.5&5(a)-True copy of injury certificate requisition M.O. CMS Hospital Solapur, in Marathi Language along with translated copy.
6. Ex.P.6&6(a)-True copy of notice to Car driver in Marathi Language along with translated copy.
7. Ex.P.7&7(a)–True copy of statement of complainant before Kamti P.S. in Marathi Language along with translated copy.
8. Ex.P.8&8(a)-True copy of father of complainant before Kamti P.S. in Marathi Language along with translated copy.
9. Ex.P.9- Original bills (16 pages).
10. Ex.P.10-True copy of medical legal certificate.
11. Ex.P.11-Copy of Insurance certificate.
12. Ex.P.12-Copy of R.C.Extract.
13. Ex.P.13-Copy of D.L. of complainant Car driver.
14. Ex.P.14-Aadhar Card of complainant.
15. Ex.P.15&15(a)-Legal notice dt:27.01.2022, along with postal RPAD receipt.
16. Ex.P.16-True copy of disability card.

Document produced by the Opponen.

            -Nil-

Witness examined.

Complainant.

P.W.1- Sangmithra Melkunde S/I Revanappa  Melkunde,    (complainant).

Opponent.

-Nil-