THE DISTRICT CONSUMAR DISPUTES REDRESSAL FORUM No.419, Ist Floor,. H.N. Gowda Building, M.B.Road, Kolar-563101 consumer case(CC) No. CC/09/64
Baby M Savindhala K.Poornima, Master Hemath,
...........Appellant(s)
Vs.
Kamalaksha M/s.Bajaj Allianz General Insurance Co. Ltd.
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
CC Filed on 18.08.2009 Disposed on 23.02.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR. Dated: 23rd day of February 2010 PRESENT: Sri. G.V.HEGDE, President. Sri. T.NAGARAJA, Member. Smt. K.G.SHANTALA, Member. --- Consumer Complaint No. 64/2009 Between: 1. Smt. K. Poornima, W/o. Late. M. Manjunatha, 28 Years. 2. Baby M. Savindhala, D/o. Late. M. Manjunatha, 7 years. 3. Master M. Hemanth, S/o. Late M. Manjunatha, 1½ years. Complainant No.2 and 3 are minors hence, represented through their natural guardian mother Smt. K. Poornima. Complainants No.1 to 3 are all R/at. Chunchudenahalli Village, Vakkaleri Hobli, Kolar Taluk. (By Advocate Sri. B.S. Sathyanarayana & others ) .Complainants V/S 1. Mr. Kamalaksha, Customer Relationship Officer, M/s. Bajaj Allianz General Insurance Co. Ltd., 2nd Cross, Near Sri Venkateshwara Kalyana Mantapa, Keelukote, Kolar 563 101. 2. M/s. Bajaj Allianz General Insurance Company Limited, No. 31, Ground Floor, TBR Tower, 1st Cross, New Mission Road, Next to Bangalore Stock Exchange, Bangalore 500 024. (By Advocate Sri. B. Kumar & others ) .Opposite Parties ORDERS This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite party No.2 to pay a sum of Rs.2,00,000/- towards personal accident coverage under the insurance policy issued by OP.2 and Rs.1,00,000/- towards deficiency in service and mental agony and hardship and Rs.5,000/- towards costs of proceedings in all Rs.3,05,000/- with interest. 2. The material facts of complainants case may be stated as follows: That the complainant No.1 is the widow and complainant No.2 and 3 are minor daughter and son of deceased M. Manjunath S/o. Muniswamappa. The deceased M. Manjunath was having a Bajaj Goods Carrier (three wheeler) vehicle bearing Registration No. KA-07-5557 and he was the owner cum driver of the said vehicle. OP.1 who was Customer Relationship Officer for Kolar District of OP.2 insurance company, approached the deceased M. Manjunath and got insured the above said vehicle with OP.2 insurance company and issued policy No. OG-08-1501-1803-00014847 valid from 27.10.2007 to 26.10.2008 which also covered personal accident coverage for owner cum driver for Rs.2,00,000/-. That on 09.04.2008 at about 5 p.m. the deceased M. Manjunath was driving his goods carriage near Arabikottanur Village and when he was taking turn at Chunchadenahalli Gate on Kolar-Bangalore NH-4 road, a Tata Safari car No. KA-03-A-9950, came in a rash and negligent manner from Kolar side and hit the vehicle of M. Manjunath, due to the impact the driver-owner M. Manjunath sustained grievous breading injuries on his head and other parts of the body and succumbed to the said injuries on 14.04.2008 while being treated in R.L. Jalappa Hospital, Tamaka, Kolar. The complainants being LRs of deceased M. Manjunath approached OP.1 to settle the Personal Accident Benefit under the insurance policy for the death of M. Manjunath in the above said accident. OP.1 asked the complainants to approach OP.2. Accordingly all the required documents were furnished along with claim petition to OP.2. However OP.2 did not settle the claim for more than a year and thereafter complainants got issued legal notice on 15.07.2009 which was served on OP.2. Inspite of it neither the claim was settled nor the reply was given. Therefore the present complaint is filed. 3. OP.1 remained absent, though an Advocate had undertaken to appear for him. As OP.1 was not a material party further step was not taken to issue fresh notice to him. OP.2 appeared through Counsel and filed version. The defence of OP.2 is as follows: The issue of insurance policy covering personal accident benefit for owner cum driver for the period alleged in the complaint is not disputed. It is contended that the complainants failed to produce permit issued in respect of vehicle in question and the non-production of permit should lead to an adverse inference that the vehicle was not plying as per the terms and conditions of the permit. Further that in the said vehicle one Muniraju S/o. Gopalappa and one Somashekar S/o. Gopalappa were traveling whereas the goods vehicle was intended to carry goods and not any persons or passengers. The R.C. of the vehicle showed that the seating capacity including the driver was one, which infers that no other person should be carried in it. Further it is contended that complainants have filed M.V.C No. 77/08 on the file of MACT, Kolar for compensation consequent to the death of M. Manjunath against the driver and owner and insurance company of other vehicle bearing No. KA-03-A-9958 and as such the present complaint is not maintainable. Therefore it is prayed to dismiss the complaint. 4. The parties filed affidavits and documents. We heard the Learned Counsel for parties. 5. The following points arise for our consideration: Point No.1: Whether there is deficiency in service by OP.2? Point No.2: If so, to which reliefs the complainants are entitled to? Point No.3: To what order? 6. After considering the records and submissions of parties our findings on the above points are as follows: Point No.1: OP.2 has taken mainly two grounds to contend that the claim is not maintainable. The first ground is that the deceased M. Manjunath who was driver cum owner had carried two persons by name Muniraju and Somashekar in his goods vehicle, thereby contravened the condition regarding limitation as to use of the vehicle. The other ground is that the complainants have filed M.V.C No.77/08 claiming compensation for the death of M. Manjunath, thereby the present claim is not maintainable. In support of the first contention the Learned Counsel for OP.2 relied upon (a) First Appeal No.166/03 National Insurance Company Limited V/s. Suresh Babu, National Consumer Dispute Redressal Commission. (b) Civil Appeal No. 1825/09 United India Insurance Company Limited V/s. Sukh Deo Yadev, Supreme Court of India. (c) Appeal No. 280/08 The New India Assurance Company Limited V/s. Raj Paul, H.P. State Consumer Disputes Redressal Commission, Shimla On the other hand the Learned Counsel for the complainants relied upon the decision citied in (1996) 4 Supreme Court Cases 647 between B.V. Nagaraju V/s. Oriental Insurance Co. Ltd., We perused the above decisions. The principles stated in the decision citied in (1996) 4 Supreme Court Cases 647 are followed in all the cases referred above. In the said Supreme Court decision it is held that exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy. Further it is held that the mere misuse of the vehicle though was some what irregular, but not so fundamental in nature so as to put an end to a contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. Therefore in each case from its facts one has to ascertain whether the breach is fundamental so as to avoid the contract. If the breach is not so fundamental then the contract cannot be avoided. In the first case relied upon by the Learned Counsel for OP.2 there was permit to carry 35 passengers in the vehicle but there were 65 passengers in it at the time of accident and the vehicle was driven in the dead of night and there was evidence that the driver was very fast and reckless and dashed-behind another vehicle which was parked on the roadside. In such circumstance it was held that breach of the conditions of the policy was the cause for accident. In the second issue no finding is given and the matter was remanded. In the third decision as against the seating capacity of 42 persons the vehicle was carrying 60/65 passengers at the time of accident. The defence taken that the accident was due to sagging of the road was found to be not true. Therefore it was concluded that overloading had contributed to the accident. In the present case, the vehicle in question is a Bajaj goods carrier (three wheeler). It is alleged that when this vehicle was taking turn at Chunchadenahalli Gate on Kolar-Bangalore NH-4 Road, a Tata Safari car came in a rash and negligent manner from Kolar side and hit the said goods carriage. The criminal case is filed against the driver of Tata Safari car. It is not the case of OP.2 that the driver of Bajaj goods carrier was at fault for causing the accident. The accident took place 09.04.2008 at about 5 p.m. From the Police papers it is found that two persons were traveling in that goods vehicle at the time of accident. But there is no pleading or evidence placed by OP.2 whether these two passengers were by the side of driver or they were in the back side of the vehicle. If they were in the back side of the vehicle, their presence does not in any way contribute to the happening of the accident. OP.2 should make out the facts which contributed to the causing of accident. Therefore considering the facts of the present case, we are of the opinion that there is no fundamental breach, which contributed to the causing of accident by carrying two passengers in the goods carrier though it was irregular. OP.2 failed to establish that there was any breach of condition which was so fundamental in nature so as to put an end to the contract. The Learned Counsel for complainants produced that the vehicle in question does not require any permit under section 66 (1) of MV Act 1988. He also produced an endorsement to that effect issued by the R.T.O. showing that the gross weight of the vehicle in question is less than 3,000 kilograms thereby obtaining the permit under section 66 (1) is exempted as provided under section 66 (3) of MV Act 1988. Therefore the Learned Counsel contended that carrying of two persons in the goods carriage cannot be considered in the present case a contravention of the permit. It can be seen that the vehicle in question is a goods vehicle and the seating capacity is one including the driver which implies that no person other than the driver can travel in it. However we found that the breach of condition is not so fundamental to avoid the contract of insurance. The other contention of the Learned Counsel for OP.2 that as a claim is made by the present complainants in MVC No. 77/08, the present complaint is not maintainable, appears to be not well founded. The present complaint is filed on the basis of personal accident benefit clause contained in the insurance policy. It is a contract for the payment of a predetermined sum on the happening of the accident as defined in the policy. It is not a contract of indemnity. But the claim in MVC No.77/08 is based on the contract of indemnity. The insurance company against whom claim is made in MVC No.77/08 is a different insurance company but not OP.2. The two claims are independent claims based on different nature of contracts entered with two insurance companies. For these reasons the two decisions (a) Civil Appeal 1748 of 2009 between National Insurance Company Limited V/s. Sebastian K. Jacob of Supreme Court and (b) CDJ 2006 SC 041 between National Insurance Company Limited V/s. Mustan and another relied upon by the Learned Counsel for OP.2 are not relevant. Hence we are of the opinion that the pendency of MVC No. 77/08 is not a bar to file the present complaint. For the above reasons we hold that OP.2 should have settled the claim in favour of complainants. Accordingly we hold Point No.1 in affirmative. Point No.2: As point No.1 is held in affirmative the complainants are entitled to get Rs.2,00,000/- compensation towards Personal Accident Benefit from OP.2. From the records the date on which the claim is preferred before OP.2 is not forthcoming. The complainants got issued legal notice dated 15.07.2009 and they filed the complaint on 18.08.2009. Therefore interest may be awarded from the date of filing of complaint on the said amount. Point No.3: Hence we pass the following: O R D E R The complaint is allowed with costs of Rs.1,000/-. OP.2 is directed to pay Rs.2,00,000/- (rupees two lakh only) to complainants with interest at the rate of 6% p.a. on the said amount from 18.08.2009 till the date of payment. OP.2 shall pay the amount within 6 weeks from the date of this order. Out of the above said compensation and costs, the complainant No.1 shall deposit Rs.50,000/- each in the name of minor complainant No.2 and 3 in any Nationalized Bank till they attain majority with liberty to draw interest from time to time and she shall receive the remaining amount. Dictated to the Stenographer, corrected and pronounced in open Forum this the 23rd day of February 2010. MEMBER MEMBER PRESIDENT
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