BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. 1585/2008 against C.C. 49/2007, Dist. Forum, Sanga Reddy
Between:
Tata AIG General Insurance Co. Ltd.
Raheja Towers, 9th Floor
Anna Salai, Chennai-2 *** Appellant/
O.P. No. 3
And
1. CH. Bapu Reddy
S/o. Late Venkat Reddy
Age: 44 years,
Occ: Agriculture
R/o. Appannapally (V)
Dubbak Mandal
Medak Dist. *** Respondent/
Complainant
2. The Manager
Shri Ram Chit Fund Company
Branch Siddipet, Medak Dist. *** Respondent/
O.P. No. 1
3. The Branch Manager
The Road Safety Club Pvt. Ltd.
2-A, II Floor, Prakasham Road
T. Nagar, Chennai-600 017. *** Respondent/
O.P. No. 2.
Counsel for the Appellant: M/s. K. Kishore Kumar Reddy
Counsel for the Respondent: P.I.P. (R1)
M/s. M.M. Srinivas (R2)
Mr. K. Maheswara Rao (R3)
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
&
SRI K. SATYANAND, MEMBER.
FRIDAY, THIS THE FIFTH DAY OF JUNE TWO THOUSAND NINE
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President.)
***
This is an appeal preferred by the insurance company/Opposite Party No. 3 against the order of the Dist. Forum directing it to pay Rs. 1,05,000/- with interest and costs.
2) The case of the complainant in brief is that he joined as a member in R2 Road Safety Club Pvt. Ltd. through R1 chit fund company paid Rs. 1,000/- towards membership fee. By virtue of membership the appellant insurance company issued a policy valid from 18.09.2003 to 17.09.2004 covering the medical expenses in the event of accident. While so, on 10.4.2004 while he was going on a scooter from Siddipet to Appannapally and by the time he reached Mustabad cross roads the driver of the tractor bearing No. AP 23 G0095 drove negligently and dashed the scooter due to which he sustained fracture of his left leg and multiple injuries all over the body. Immediately he was shifted to Sushrutha hospital and later admitted in Mytri Multi Speciality Hospital, Hyderabad where he was treated as inpatient from 11.4.2004 to 19.4.2004. An operation of open tibial fracture of left leg was conducted on 9.9.2004 in Shushrutha Hospital, Siddipet and was discharged on 29.9.2004. In all he spent Rs. 1,50,000/- towards treatment. Due to the injury his left knee had shortened by 1-1/2” and there was deformity. There was 35% partial permanent disability. He informed the same to R1 but it did not give any reply. Later he gave complaint before the Mandal Legal Services Committee, which in turn directed to file a complaint before the proper forum. Therefore, he filed the complaint claiming Rs. 3,00,000/- under the policy, with interest @ 24% p.a., Rs. 2,00,000/- towards medical expenses and Rs. 50,000/- towards costs.
3) R1 chit fund company filed counter resisting the complaint. It alleged that it was no way concerned with R2 or with the appellant insurance company. The complaint against it was vexatious. It was no way concerned with the Road Safety Club. The complainant was neither a consumer nor the Dist. Forum has jurisdiction to adjudicate the matter and prayed for dismissal of the complaint with costs.
4) R2, Road Safety Club filed counter resisting the case. It alleged that the public were encouraged to become its members in order to create risk awareness and as a complementary insurance coverage was given to its members. It put the complainant to proof that he met with an accident, sustained 35% disability, spent Rs. 1,50,000/- towards treatment etc. At any rate, the complainant cannot be termed as a consumer. Since there is an arbitration clause the consumer fora has no jurisdiction. Therefore, it prayed for dismissal of the complaint.
5) R3, insurance company filed counter resisting the case. It alleged that the complaint was hopelessly barred by limitation on the very facts alleged by him. While the accident took place on 10.4.2004 the complaint was filed on 12.12.2007, nearly 3-1/2 years after the accident. For the first time it came to learn about the claim on 11.4.2007, by virtue of a complaint filed before the Mandal Legal Service Committee, Siddipet. By virtue of section 6 and condition No. 8 of the policy the complainant had to inform about the accident within 7 days. By virtue of condition No. 16, the complainant had to initiate legal action within one year from the date of disclaimer. Failure to comply any of these conditions would render the claim wholly unsustainable. Therefore, it prayed that the complaint be dismissed.
6) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A9 marked. Refuting his evidence, R2 Road Safety Club filed Ex. B1 membership application form, Ex. B2 membership certificate, and Ex. B3 insurance policy.
7) The Dist. Forum after considering the evidence placed on record opined that the complainant had spent Rs. 1,40,000/- towards treatment, and in view of the fact that the disability was 35%, granted Rs. 1,05,000/- together with interest @ 9% p.a., and costs.
8) Aggrieved by the said decision, the insurance company preferred this appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. It ought to have held that the complaint was hopeless barred by limitation. Even if there was permanent partial disability though not provided in the specified list, at the most he was entitled to 25% of the principal sum assured viz., Rs. 75,000/-. There was no deficiency of service on its part, and therefore prayed that the appeal be allowed.
9) The point that arises for consideration is whether the insurance company is not liable to pay the amount?
10) It is an undisputed fact that the complainant enrolled himself as a member of R2 Road Safety Club Pvt. Ltd., by virtue of which he was entitled to benefits of insurance policy amounting to Rs. 3 lakhs. It agreed to pay up to Rs. 3 lakhs towards accidental benefit, or towards total permanent disability or towards permanent partial disability.
11) The complainant alleges that he sustained fracture of left leg in a road accident that took place on 10.4.2004 for which he gave a report to the police on 16.4.2004, basing on which a case in Crime No. 53/2004 was registered u/s. 337 of IPC against the driver of the tractor bearing No. A.P. 23 G0095 evidenced under Ex. A2. The police after investigation laid charge sheet against the driver of the tractor in C.C. No. 268/2004 evidenced under Ex. A3. He was operated in April, 2004 by an orthopedic surgeon of Suvidha Hospital, Hyderabad. He issued a certificate evidenced under Ex. A7 that “ Partial Permanent disability in about 35%”.
12) The complainant alleges that he had incurred Rs. 1,40,000/- towards medical expenses and therefore was entitled to reimbursement of Rs. 1,40,000/- besides Rs. 3 lakhs assured under the policy and costs.
13) It is an undisputed fact that the complainant having sustained fracture in the accident that took place on 10.4.2004, did not inform either to R2 Road Safety Club or to the appellant insurance company at any time. For the first time, in the month of April, 2007 he filed a complaint before the Mandal Legal Services Committee, Siddipet. The appellant alleged therein that it has received the summons for the first time on 11.4.2007 that the Mandal Legal Services Committee has no jurisdiction. On that Legal Services Committee by its order Dt. 17.11.2007 opined that it was not entitled to adjudicate the matter. While disposing of the same it held that “Hence the petitioner can agitate his claim before the appropriate forum as per law and accordingly petition is closed.” Basing on this endorsement, the complainant filed the complaint before the Dist. Forum on 12.12.2007 nearly 3-1/2 years after the accident claiming compensation.
14) R2 Road Safety Club which has taken the insurance policy to its members as well as the appellant insurance company contended that the complaint was hopelessly barred by limitation. For the accident that took place on 10.4.2004, the complainant filed complaint on 12.12.2007, and as such was hopelessly barred by limitation under the Consumer Protection Act.
15) It is not the case of the complainant even that he had informed about the accident either to R2 Road Safety Club or to the appellant insurance company. He did not allege anything in regard to limitation nor filed a petition u/s 24A (2) of the Consumer Protection Act to condone the delay. Obviously, in order to get over the question of limitation, he alleged that R1 chit fund company was instrumental in making him to join as a member in R2 club and therefore he informed to them on 13.4.2004 under Ex. A8, and therefore the complaint was within limitation. The complainant could not prove that he became the member of R2 club through R1 chit fund company . No evidence whatsoever was filed in order to establish the nexus between R1 and R2 in order to state that notice issued to R1 is sufficient and it would save the limitation against R2 & R3. R1 filed counter denying that it was instrumental in joining the complainant as a member in R2 Road Safety Club. In fact, its contention is that it is not concerned whatsoever either with R2 or R3. It is not known why the complainant could not issue notice or inform that he met with an accident either to R2 or R3 before which, he could lay a claim. May be he had sustained fracture in an accident that took place on 10.4.2004, and an operation was conducted, however, the fact that he had spent Rs. 1,40,000/- towards treatment is not substantiated by any document. He could have at least filed the bills or some evidence to show that he had incurred expenses amounting to Rs. 1,40,000/-. No doubt, he filed a certificate Ex. A1 to show that he had partial permanent disability. Under the policy, he would be entitled up to Rs. 3 lakhs for partial permanent disability, provided he proved that he had spent the amount towards treatment etc. besides proving permanent partial disability. At any rate, the complainant could not prove either.
16) The important contention raised is that the complaint was not filed within the period of limitation as provided under the Consumer Protection Act.
Section 24A of Consumer Protection Act stipulates a limitation of two years for filing a complaint from the date of cause of action. The accident that took place on 10.4.2004. The complaint was filed on 12.12.2007, more than 3-1/2 years after the accident. A notice was given to R1. At no stretch of imagination, notice to R1 which is not concerned either with R2 or R3 would come to his rescue for reckoning the period of limitation. At the cost of repetition, we may state that no notice or intimation was issued either to R2 or R3 about the accident. For the first time, for the accident that took place on 10.4.2004 by receiving notice from the Legal Services Committee on 11.4.2007 they could know that the complainant had sustained injury. We may also mention herein that he did not follow any of the conditions laid down in the policy viz., intimating the accident within 7 days as contemplated in condition No. 8 or initiating legal action within a year as contemplated in clause No. 16. Condition No. 17 stipulates that non-compliance of above provisions would invalidate all the claims under the policy. At any rate, since the complainant failed to intimate the accident either to R2 or R3 for nearly 3-1/2 years, and filed complaint subsequently, we may state the complaint is hopelessly barred by limitation. This aspect was not considered by the Dist. Forum at all.
17) We may add herein that obviously that the complainant has sustained fracture in a motor vehicle accident, he can as well file a claim before the tribunal constituted under the Motor Vehicles Act if so advised. The complainant could not clutch the jurisdiction of Dist. Forum after expiry of the limitation without recourse to Section 24A (2) of the C.P. Act. . The complaint is barred by limitation, and therefore the complaint is liable to be dismissed.
18) In the result the appeal is allowed, consequently, the complaint is dismissed. However, in the circumstances of the case each party to bear its own costs.
1) _______________________________
PRESIDENT
2) _________________________________
MEMBER
Dt. 05. 06. 2009.
