DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 25th day of October 2012
Present: Smt.Seena.H, President
: Smt.Preetha.G.Nair, Member
: Smt.Bhanumathi.A.K, Member Date of Filing : 07/06/2012
CC No.99/2012
1.Krishnan,
S/o.Chami,
Thodukadu, Thanniramkadu,
Mathur, Alathur, Palakkad
(By Adv.C.Ramadas)
2.Madhavi,
W/o.Krishnan,
Thodukadu, Thanniramkadu,
Mathur, Alathur, Palakkad
(By Adv.C.Ramadas) - Complainant
Vs
Manager,
United India Insurance Co.Ltd.,
Faizal Building,
Main Road, Ottapalam Branch,
Ottapalam - Opposite party
(By Adv.P.Prasad)
O R D E R
By Smt.PREETHA G NAIR, MEMBER
Complainants are the legal heirs of the deceased Haridasan who was a Mahout of the elephant named Murughan. Complainant’s son Haridasan was engaged by Shanmughan as a Mahout by Profession. On 17/7/08 at about 9.30 hours complainant’s son was doing employment as a Mahout as instructed by owner of the elephant. While deceased Haridasan along with the elephant were proceeding through the paramba the elephant suddenly got violent and ran away through the paramba at Chungamannam. At that time the deceased Haridasan has seated on the top of the elephant got electrocution and injury. Immediately after the accident Haridasan has taken to District Hospital, but died on the way to Hospital due to electrocution.
The owner of the elephant has insured the elephant for the total sum assured of Rs.13,45,000/- for the period from 31/12/2007 to 30/12/2008 as per Rural Accident Package Policy No.101203/47/07/99/00000/99. Accordingly after the accident the complainants given a claim to the opposite party for getting accident compensation benefit. As per the policy death of mahout due to insured elephant will comes to Rs.2,00,000/- each. The complainants had claimed the insurance amount from opposite party during 2008. The opposite party neither repudiated the claim nor allowed the claim. Opposite party not so far sent any reply to the complainants by rejecting the claim. Thereafter complainant has filed a petition before Workmen Compensation Commissioner as W.C.C.80/09 against the owner of the elephant and the opposite party. But opposite party taken a defense that there is no workmen compensation policy. The commissioner arrived at a finding that there is no workmen compensation policy. But the policy is only rural accident package policy. Also stated that in order to get benefit it has to be claimed separately. Learned Workmen Compensation Commissioner found out that there is employer employee relationship between deceased and the owner of the elephant. The complainants given claim application during 2008. The act of opposite party amounts to deficiency in service and unfair trade practice. The complainants sent notice to the opposite party dated 28/5/12. After receiving the notice the opposite party has not sent any reply. Hence the complainants seeking an order directing the opposite party to
1. Pay Rs.2,00,000/- with interest as the insured amount and
2. Pay compensation for mental agony and cost of the proceedings.
Opposite party filed version stating the following contentions. The complaint is not maintainable in law. The complaint is barred by limitation and they have not given any claim form in the year 2008. The opposite party on intimation from the insured conducted investigation and came to understand that the deceased was not a mahout and repudiation letter was given to the insured on 2/4/2009. The insured has given a statement to the police also that the deceased was not his mahout. The deceased was a minor boy aged 15 years not employed by the insured Shanmughan Chettiyar. The allegation of the elephant suddenly got violent and ran away is all false. The 1st complainant deposed before the Workmen Compensation Court that the elephant was calm and there is no violent behaviour on the part of the elephant. The death was not due to the insured elephant. The complainants filed claim petition before the Workmen Compensation Court as W.C.C. 80/2009 and since the applicants have not given any claim application in the year 2008. As per the policy even the death of the Mahout is covered only due to insured elephant. The electrocution and subsequent death of Haridasan was not happened due to any unusual or violent behaviour on the part of the elephant. The complainants are trying to extract money unlawfully from the opposite party.
The allegation that the opposite party has not sent any reply notice is false. There is no deficiency of service or unfair trade practice on the part of opposite party. Hence the opposite party prayed that dismiss the complaint with cost.
Both parties filed their affidavit and documents. Ext.A1 to A8 marked on the side of complainants. Ext.B1 to B8 marked on the side of opposite party. 1st Complainant and opposite party was examined as PW1 and DW1. Both parties filed argument notes. Matter heard.
Issues to be considered are;
1. Whether the complaint is maintainable ?
2. Whether there is any deficiency in service on the part of opposite party?
3. If so, what is the relief and cost?
Issue No.1
The opposite party stated that the incident took place in the year 2008 and hence the complaint is barred by limitation. The complainant stated that the owner of the elephant has insured the elephant for the sum assured of Rs.13,45,000/- for the period from 31/12/2007 to 30/12/2008. As per the policy after the accident complainant given a claim to the opposite party for getting accident compensation benefit. As per the policy the death of Mahout due to insured elephant will comes to Rs.2,00,000/- each to 2 mahouts. So complainants had claimed the insurance amount from the opposite party during 2008. But after receiving the application the opposite party has not repudiated the claim or allowed the claim. The opposite party has not produced evidence to show that the claim repudiated and intimation given to the complainants. Moreover the petition before the Workmen Compensation Commissioner ordered on 14/11/2011. As per the order from the Workmen Compensation Commissioner there is no Workmen Compensation Policy, but the policy is only rural accident package policy. Also stated that inorder to get benefit under the policy, it has to be claimed separately. Thereafter the complainants filed the complaint. So the complaint filed within the period. Hence the complaint is maintainable.
Issue No. 2 & 3
We perused relevant documents on record. As per Ext.A7 the order of the Workmen’s Compensation Commissioner mentioned that “the policy issued by the United India Insurance Co.Ltd., is rural accident package policy which does not cover legal liability to mahouts. The policy cover only the personal accident cover of Rs.2 lakhs each for 2 mahouts. Since it does not covers the legal liability as per employee’s compensation act, the said policy amount has to be claimed separately from the insurance company.”
It is evident from Ext.A7 that the employer of the deceased is liable to pay the compensation amount of Rs.4,57,080/- under section 3 of the Act. As the deceased was an employee under the Act and fatal injury was caused to him by an accident arising out of and in the course of his employment under the insured, the complainants are entitled to get the compensation. The complainants and the opposite party had not produced evidence to show that the compensation amount given to the complainants. Ext.B4 is the copy of notice sent by the opposite party to the complainant’s counsel. Ext.B3 is the copy of the policy issued by the opposite party in the name of the insured. It is evident from Ext.A7 that the date of incident was on 17/7/2008 and there was a valid insurance of the elephant. In Ext.B3 the copy of policy shows that death of mahouts due to insured elephant Rs.2 lakh each, to 2 mahouts. Nowhere stated in the policy that there is violent behavior on the part of elephant.
As per Ext.B7 the opposite party repudiated the claim on the ground of Haridasan was not working as a mahout of the insured elephant and the death is reported due to electrocution. In Ext.A1 the copy of FIR clearly mentioned that Haridasan was working as the 2nd mahout. No contradictory evidence produced by the opposite party. It is evident from Ext.A1 that at the time of death Haridasan was doing employment as a mahout. The opposite party has not produced evidence to show that the death of Haridasan was not due to insured elephant. On 17/7/08 Haridasan was doing employment as a mahout the elephant suddenly got violent and ran away through the paramba. The complainants stated that at the time of death Haridasan has seated on the top of the elephant got electrocution and died on the way to hospital.
In the above discussions we are of the view that there is deficiency in service on the part of opposite party. In the result complaint allowed. We direct the opposite party to pay the complainants an amount of Rs.2 lakhs (Rupees Two lakhs only) as the insured amount and Rs.5,000/- (Rupees Five thousand only) as compensation for mental agony and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings. Ordered amount shall be paid after receiving the legalheirship certificate from the complainants.
Order shall be complied within two weeks from the date of receipt of legalheirship certificate, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 25th day of October 2012.
Sd/-
Seena.H,
President
Sd/-
Preetha.G.Nair,
Member
Sd/-
Bhanumathi.A.K,
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Photocopy of FIR issued by Kuzhalmannam Police Station Crime
No.298/08
Ext.A2 –Photocopy of KSEB report of accident
Ext.A3 – Photocopy of Post Mortem Report
Ext.A4 – Photocopy of Sean Mahassar in Crime No.298/08
Ext.A5 – Photocopyof Policy copy issued by 1st opposite party
Ext.A6 series – Copy of Lawyer notiece dated 28/5/12 and postal receipt issued
to opopsite party
Ext.A7 – Copy of Order of WCC case No.80/2009
Ext.A8 – Photocopy of Sworn of Mr.Balagopal in WCC case No.80/09
Complainant examined
PW1 –Krishnan.C
Exhibits marked on the side of the opposite party
Ext.B1 – Certified copy of deposition of 1st complainant before the WCC.
Ext.B2 – Copy of the claim petition filed before the WCC
Ext.B3 – Copy of policy alongwith the version
Ext.B4 – Reply to lawyer notice
Ext.B5 – Postal receipt
Ext.B6 – Acknowledgment card
Ext.B7 – Copy of letter dated 2/4/09 issued to Shanmughan Chettiar by the
opposite party
Ext.B8 –Acknowledgment card.
Witness examined on the side of the opposite party
DW1 – N.Balagoplan
Cost
Rs.1,000/- allowed as cost of the proceedings
