CC Filed on 01.06.2009<br /> Disposed on 09.09.2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.<br /> <br /> Dated: 09th day of September 2009<br /> <br /> PRESENT:<br /> Sri. G.V.HEGDE, President.<br /> <br /> Sri. T.NAGARAJA, Member.<br /> Smt. K.G.SHANTALA, Member.<br /> ---<br /> <br /> Consumer Complaint No. 41/2009<br /> <br /> Between:<br /> <br /> <br /> Smt. Mumtaz,<br /> W/o. Late. Babu,<br /> Aged about 22 years,<br /> Now R/at 2nd Cross,<br /> Rahamathnagar,<br /> Kolar Town.<br /> <br /> <br /> (By Advocate Sri. V. Sridhar & others ) <br /> <br /> <br /> <br /> <br /> <br /> <br /> ….Complainant<br /> <br /> V/S<br /> <br /> <br /> M/s. Bajaj Allianz-General Insurance<br /> Company Limited,<br /> # 105A/107A,<br /> Cears Plaza, 136,<br /> Residency Road,<br /> Bangalore – 25.<br /> <br /> <br /> (By Advocate Sri. B. Kumar & others ) <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> ….Opposite Party<br /> <br /> <br /> ORDERS<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite party to pay a sum of Rs.2,00,000/- to complainant with interest and costs etc., towards the claim made by her for personal accident insurance of her late husband.<br /> <br /> 2. Prior to filing the complaint dated 01.06.2009 complainant had made a representation dated 05.06.2007 to OP claiming the insurance amount of Rs.2,00,000/-. No reply was given by OP to that representation and no action was taken on it. The material part of the said representation is as follows:<br /> “With reference to the above-cited subject, I the undersigned inform you that, my husband Viz., Babu was the owner-cum-driver of the Vehicle Viz., Mahindra Auto bearing registration No. KA-07/5124, which he was being used for hire purpose and the same was insured in your company at your branch vide Policy No. OG-06-1701-1803-00000411, valid from 17.06.2005 to 16.06.2006 and in the said policy, he has paid an extra premium towards his personal accident benefit upto Rs.2,00,000/-. A Xerox copy of the aforesaid insurance policy is herewith enclosed for your kind perusal.<br /> <br /> On 04.04.2006 some of the persons have engaged my husband’s Auto so as to transport their goods to Srinivasapur from Chintamani Town. Accordingly, after having loaded the goods in to the said auto, my husband proceeding towards Srinivasapur. During the transit, the inmates of the said Auto stabbed my husband and put his dead body in to a well near Kondavenakapalli Village of Chintamani Taluk and fled away from the spot along with the said Auto. The Batlahalli Police of Chintamani Taluk, Kolar District, in whose jurisdiction the said accident took place, have registered a case as against the un-known persons in Cr. No. 14/2006 u/s. 302, 201 IPC R/W. Sec. 34 of IPC.<br /> <br /> Hence, in view of the same, I being the wife-cum-preferential legal representative of insured-Babu, claiming the said policy assured sum of Rs.2,00,000/- from your company, since I came to know the said personal accident policy of my husband very recently. I am herewith enclosing the police records pertaining to the said incident, my husband’s vehicle documents, his electoral card and death certificate and Xerox copy of the ration card of our family, for your kind perusal, so as to consider my above claim.<br /> <br /> WHEREFORE, I request your good self to kindly accept this claim in the above regard and to release the aforesaid assured policy sum of Rs.2,00,000/- to me, by issuing necessary intimation to me within 15 days from the receipt of this letter.” <br /> <br /> Admittedly earlier to the above said representation dated 05.06.2007 the complainant had not preferred any claim before the OP or she had not intimated the incident to OP. In the version it is contended by OP that immediate notice of the incident or claim was not given or made to OP and there was long delay in making the claim by way of representation dated 05.06.2007 though the alleged incident had taken place on 04.04.2006 nearly 14 months prior to the date of claim, it had not processed the claim and for the said reason OP cannot be held liable under the policy in respect of the claim made by complainant. It has also contended in its version that the claim is not covered under section IV of the policy relating to personal accident cover for owner-driver. The OP admitted the issuance of the insurance policy covering liability for personal accident cover for owner-driver of Rs.2,00,000/-. The OP has taken some other contentions to contend that the claim is not maintainable.<br /> <br /> 3. The parties filed affidavits and relevant documents. We heard the Learned Counsel for parties.<br /> <br /> 4. The following points arise for our consideration:<br /> <br /> Point No. 1. Whether there is deficiency in service by OP?<br /> Point No.2. To what order?<br /> <br /> 5. After considering the records and the submissions of the parties our findings on the above points are as follows:<br /> Point No. 1: The OP has not replied on the representation of the complainant, if the claim is not maintainable for any reason that should have been intimated to the person who made the claim. This conduct of OP itself amounts to deficiency in service. <br /> <br /> Condition No. 1 stated in the policy relates to issue of notice. The said condition is as follows: <br /> 1. “Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution Inquest or Fatal Inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.” <br /> <br /> In the present case the person who had insured the vehicle with personal accident benefit had died. The claimant/wife stated in her representation that she came to know the existence of personal accident policy of her husband very recently and immediately thereafter she made the claim. The said fact is also alleged in her complaint. If this explanation is found to be true, one has to see whether the delay is itself sufficient to repudiate the claim. In view of the provision regarding notice stated in condition No. 1 we think if the delay is properly explained the claim cannot be rejected on the ground that there was delay in preferring the claim or issuing notice of the incident. The said condition does not say within which time the notice should be issued from the date of incident. The object of issuing notice is to give an opportunity to the Insurance Company to verify the spot and to ascertain the truth or otherwise of the claim. In the present case there was no motor accident and the claim also does not relate to damage to the vehicle. In the present case the claim is made for the death of owner-driver who was covered under personal accident benefit clause. It can also be seen that the dead body was not on the spot of the incident and it was thrown into a well and the vehicle was also taken away from the spot and after some days was traced. The dead body was noticed on 04.04.2006. It appears the dead body might have been identified at a subsequent stage. Therefore by the time the claimant coming to know the death of her husband there must have been some delay from the date of incident. The alleged homicidal death mainly depends on circumstantial evidence. The complainant claims that she recently came to know the existence of personal accident benefit insurance policy and immediately thereafter she made the representation for claim. Therefore in the present case the delay in giving notice of the incident/claim is not material. The said condition does not say that if claim is not preferred or intimation of the incident is not given within particular time the liability ceases. Therefore, we think that the OP could not have rejected the processing of claim on the ground of delay in preferring the claim. <br /> <br /> The other contention of the OP that under section IV of the policy the risk alleged in the present case is not covered, appears to be not valid. The material part of section IV for purpose of present case may be stated as follows: <br /> <br /> PERSONAL ACCIDENT COVER FOR OWNER-DRIVER<br /> Subject otherwise to the terms exceptions conditions and limitations of this policy, the Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or traveling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in death – 100% compensation.<br /> <br /> In the present case it is alleged that the deceased owner-driver was driving the vehicle when he was murdered. Therefore we hold that prima-facie the risk is covered and the death caused to the owner-driver of the vehicle was in direct connection with the vehicle insured. We make it clear that we are not giving any finding whether the facts alleged by the complainant are true or not. Assuming that those facts are true, we hold that the risk is covered under personal accident coverage of the policy. <br /> <br /> Many other questions of fact alleged by complainant are disputed by OP. We leave those facts to be ascertained by OP while processing the claim after collecting the materials from complainant and by independent investigation. The OP should have processed the claim and should have come to the truth or otherwise of the allegations made by the complainant/claimant. For the above reasons we hold that there is deficiency in service. Accordingly point No.1 is held in affirmative.<br /> <br /> Point No.2: Hence we pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part with costs of Rs.1,000/-. The OP shall process the claim in the light of the above findings and observations stated in this order, within 3 months from the date of this order. The complainant shall give all such information and assistance as required by OP for disposing of the claim. <br /> <br /> Dictated to the Stenographer, corrected and pronounced in open Forum this the 09th day of September 2009.<br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br />