Karnataka

Kolar

CC/48/2015

Sri.S.N.Prashanth - Complainant(s)

Versus

M/s.Needs, Manpower Support Services Pvt Ltd., - Opp.Party(s)

B.S.SathyNarayana

03 Jan 2017

ORDER

Date of Filing: 07/10/2015

Date of Order: 03/01/2017

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 03^RD DAY OF JANUARY 2017

PRESENT

SMT. PRATHIBHA.R.K., BAL LLM, PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB…..    MEMBER

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 48 OF 2015

Sri.S.N. Prashanth,

S/o. P.Nanjundappa,

Since dead by his LRs:-

 

a) P.Nanjundappa,

S/o. late Papegowda,

Aged About 55 Years,

 

b) Smt. Mangamma,

W/o.P.Nanjundappa,

Aged About 48 Years,

 

c) Kum.S.N.Manasa,

D/o.P.Nanjundappa,

Aged About 20 Years,

 

All are residing at:-

Seesandra Village, Huttur Hobli,

Kolar Taluk & District.

(Rep. by its B.S. Sathyanarayana, Advocate)                   ….  Complainant.

- V/s -

1) M/s. Needs Manpower Support

Services Private Limited, No.25,

Needs Tower, 4^th Floor, SBM Colony,

80 feet Road, Banashankari 1^st Stage,

BANGALORE-560 050.

(Rep. by Sriyuth. Javid Ahamed, Advocate)

 

2) M/s. Honda Motor Cycle and

Scooter India Private Limited,

Narasapura Industrial Estate,

Kolar Taluk & District.

(Ex-parte)

3) The Manager,

M/s. United India Insurance

Company Limited,

Suguna Complex Upstairs,

Antharagange Road,

Near KSRTC Bus Stand,

Kolar-563 101.

(Rep. by Sriyuth. J.Simon & Associates, Advocate)   …. Opposite Parties.

-: ORDER:-

 

BY SMT. PRATHIBHA.R.K, PRESIDENT

01.   The complainants have filed this complaint Under Section 12 of the Consumer Protection Act, 1986 seeking directions against the OPs to pay compensation of Rs.5,00,000/- towards death of Sri.S.N.Prashanth, to pay damages along with interest and cost of the proceedings.

 

02.   The facts in brief:-

(a)    The contention of the complainant is that, OP-1 has appointed Sri.S.N.Prashanth as “Semi Skilled-Operator” on contract basis and to that effect OP-1 issued appointment letter dated: 20.04.2013.  Then he was deputed by OP-1’s client company that is to the OP-2 company (M/s. Honda Motor Cycle and Scooter India Pvt Limited), which is located at Narasapura Industrial Area, Kolar District, for a gross salary of Rs.8,976/- per month.  After joining to the job OP-2 issued I.D. No.40001074 to Sri.S.N.Prashanth. 

 

(b)    On 11.09.2013 Sri.S.N.Prashanth being a pillion rider along with Sri.S.V.Santhosh Kumar while proceeding on a Hero Honda Splendor two wheeler vehicle bearing No.KA-07-S-3075 from Seesandra Village to OP-2 company near Kendatti Gate at about 5.00 PM the complainant dashed to hind portion of a Lorry bearing No.KA-04/C-3461 which was parked on the road without any parking signal.  As a result of the said accident both the rider and pillion rider Sri.Santhosh Kumar and Sri.S.N.Prashanth sustained grievous injuries and Sri.Santhosh Kumar died on the said spot itself. 

 

(c)    Immediately Sri.S.N.Prashanth was shifted to R.L. Jalappa Hospital, Kolar, and from there on the same day he was shifted to Manipal Hospital, Bangalore, and got admitted as an in-patient till 25.09.2013.  Again Sri.S.N.Prashanth was admitted to R.L. Jalappa Hospital, Kolar, as an inpatient from 25.09.2013 to 25.04.2014 and from 19.06.2014 to 03.07.2014.  Once again he was admitted to S.N. Hospital, Kolar, and got discharged on 21.10.2014.  During this hospitalization period he underwent major surgery to his brain and for permanent disability.

 

(d)    The said accident took place while he was under employment as such both OP Nos.1 & 2 are jointly and severally liable to pay compensation under the insurance amount which was deducted out of his salary. 

 

(e)    Further complainants contention is that, due to the said incident, Sri.S.N.Prashanth sustained grievous injury to his brain which resulted to permanent disability of the brain i.e., he could not recall his memory and he is lying on the bed in a vegetative state.  As per the appointment letter dated: 20.04.2013 issued to Sri.S.N.Prashanth the OP had deducted Rs.30/- per month from his salary towards insurance until August-2013.  As such, OP Nos.1 & 2 are liable to pay compensation towards his permanent disability.     

                  

(f)     Further the complainants contended that, in spite of several approaches made by the complainant claiming compensation by submitting relevant documents in respect of the above said accident, the OP Nos.1 & 2 were postponing the matter and with no other option on 28.07.2015 complainants issued legal notice to the OP Nos.1 & 2 but OP Nos.1 & 2 neither complied nor chosen to reply.  Hence this complaint.

 

(g)    Along with the complaint the complainant has submitted following documents:-

(i) Copy of the FIR.

(ii) Copy of complaint

(iii) Copy of Charge sheet

(iv) Spot Mahazar

(v) Sketch

(vi) IMV Report

(vii) copy of wound certificate

(viii) appointment letter

(ix) Salary certificate

(x) CT scan reports 07 in numbers

(xi) Discharge summary 04 in numbers

(xii) Legal Notice (office copy)

(xiii) Postal receipts 02 in numbers

(xiv) Postal acknowledgement

(xv) Complaint given to the post office dated: 25.08.2015

(xvi) Complaint settled reply dated: 27.08.2005.

 

03.   In response to the notice issued, counsel for OP Nos.1 & 3 appeared and filed their respective versions resisting the claim of the complainant, but OP-2 remained absent and did not choose to contest the matter, hence OP-2 placed exparte.

 

04.   In the version filed by the counsel for OP-1, OP-1 has contended that, it engaged in providing Manpower support and other allied services to various organizations.  OP-2 has awarded a contract to this OP-1 for execution of certain works.  The complainant was appointed by the OP-1 as Semi Skilled Labourer and deputed him at OP-2 premises to execute the work undertaken by them for a salary of Rs.8,976/- per month.  OP-1 has taken Group Personal Accident Insurance Policy bearing No.071602/42/13/05/00000050 with United Insurance Company Limited, Bangalore and the policy covers the accidental deaths and injuries resulting in Permanent Total disablement and permanent partial disablement in respect of employees who were discharging their duties at OP-2 premises.  The complainant is fully aware of it. 

 

(a)    The averments made at para-3 to 5 of the complaint is not within the knowledge of this OP.  The averment made at para-6 of the complaint that, this OP-1 was deducting Rs.30/- per month towards insurance policy in the account of Sri.S.N.Prashanth is true, but the United India Insurance Company Limited is liable to pay compensation in case of accident to the employees of OP-2.  This OP is not liable to pay any compensation to the complainant. 

 

(b)    Further OP-1 has contended that, the complainant is neither a Consumer nor availed any services from OP No.1.  This Hon’ble Forum has no jurisdiction to adjudicate the matter pertaining to the dispute between an employer and employee.  So contending, OP-1 has prayed for dismissal of the complaint.

 

05.   In the version filed by the counsel for OP-3, OP-3 has contended that, the averments made at paras - 2, 3, 5 & 7 are not within the knowledge of this OP-3.  The allegations made in Paras - 4, 5, 7, 11 to 13 of the complaint are denied as false.  M/s. Needs Manpower support services Private Limited was taken Group Personal Accident Insurance with this OP-3 bearing Policy No.071602/42/13/05/0000050 for the period from 23.07.2013 to 22.07.2014 and the liability if any, is subject to the terms and conditions of the said policy. 

 

(a)    This OP-3 has issued Group Personal Accident Insurance-Table III (Death, permanent total disablement, permanent partial disablement) to M/s.Needs Manpower Support Services Pvt. Ltd., for 2000 employee’s for the period from 23.07.2013 to 22.07.2013 and each one insured for Rs.4,00,000/- as covered under table-III.  Sri.S.N.Prashanth was a pillion rider in two wheeler bearing No.KA-07-S-3075 met with accident on 11.09.2013, and died on 09.01.2016 that is after lapse of 2½ years. 

 

(b)    As per the policy condition, if at any time during the currency of this policy the insured shall sustain any bodily injury resulting solely and directly from accident caused by external violent and visible means, then the company shall pay to the insured or his legal personal representatives.  OP-3 further submitted that, if such injury shall within 12 calendar month of its occurrence be the sole and direct cause to the death of the insured persons the capital sum insured stated in the schedule.  Hence OP-3 is not liable to pay any compensation.  OP-3 further submitted that, if any event which may rise to a claim under the above policy written notice with full particulars must be given to the company.  In case of death written notice must, unless reasonable cause is shown be so given before interment, cremation and in any case within one calendar month after the death. 

 

(c)    OP-3 further submitted that, any medical or other agent of company shall be allowed to examine the insured on the occasion of alleged injury or disablement and in the event of death post mortem examination report shall be furnished within 14 days after demand.  Hence there is violation of terms and conditions of the said policy.

 

(d)    Further OP-3 submits that, complainant had already claimed compensation from the Lorry owner under M.V. Act and also claimed compensation from the insurer of two wheeler bearing No.KA-07-S-3075 Under M.V. Act.  The death of Sri.S.N.Prashanth was not due to accidental injuries and it was natural death.  Since the death has taken place after lapse of 2 ½ years from the date of accident, the claim falls under the exclusion of the terms and conditions of policy and claim is not admissible.  So contending, this OP-3 has prayed for rejection of the complaint with exemplary costs in the interest of justice.

 

06.   On 30.05.2016 complainant has filed his affidavit evidence by way of examination-in-chief and also got himself examined as PW-1 and Exhibits - P.1 to P-23 came to be marked on his behalf and also cross-examined by the learned counsels appearing for the OP Nos.1 & 3.

 

07.   On 15.07.2016 one Sri.S.C. Venkataramaiah & Venkataramappa has filed his affidavit evidence and also got himself examined as PW-2 on behalf of complainant and Exhibits-P.24 to P.30 came to be marked on his behalf and also cross-examined by the learned counsel appeared for OP No.3. 

08.   On 09.08.2016 one Sri. Arun S.H, an Executive-Client’s Relationship in the OP-1 - Company has filed his affidavit evidence on behalf of OP-1 with following List of documents:-

(i) Copy of authorization letter

(ii) E-mail sent to OP No.3 intimating accident

(iii) Copy of insurance Policy.

 

09.   On 05.08.2016 Sri.J.Shantha Kumari, the Divisional Manager of OP-3 has filed her affidavit evidence on behalf of OP-3.

 

10.   Both counsel appearing for complainant and OP Nos.1 & 3 have submitted their respective written arguments.  We have heard the oral arguments as advanced by the learned counsel appearing for both complainant and OP Nos.1 & 3.

 

11.   Therefore the points that do arise for our consideration in this case are:-

(A) Whether the complainant has proved deficiency in service on the part of the OPs?

(B)    What order?

12.   Findings of this District Forum on the above stated points are:-

POINT (A):-  In the Affirmative

POINT (B):-  As per the final order

for the following:-

 

REASONS

POINT (A):-

13.   On perusing of the pleadings along with documents and affidavit evidence produced by both complainant and OP Nos.1 & 3, it is an admitted fact that, the complainant/Sri.S.N.Prashanth had joined service with the OP-2 through OP-1.  OP-1 had obtained Group Personal Accidental Insurance Policy in the name of Sri.S.N.Prashanth with the OP No.3 bearing No.071602/42/13/05/00000050 and the said policy was in force from 23.07.2013 to 22.07.2014.  The above said policy covers the risk of Rs.4,00,000/- in case of death, permanent total disablement, permanent partial disablement.  It is also an admitted fact that, Sri. S.V. Santhosh Kumar and S.N. Prashanth met with an accident on 11.09.2013 and Sri.S.V.Santhosh Kumar died at spot and Sri.S.N.Prashanth was severely injured and shifted to R.L. Jalappa Hospital, Kolar, and then shifted to Manipal Hospital, Bangalore and he was in the Manipal Hospital, Bangalore up to 25.09.2013 and again he was admitted to R.L.Jalappa Hospital, Kolar, on 25.09.2013 and discharged on 05.04.2014 and again readmitted on 19.06.2014 and discharged on 03.07.2014.  Once again he admitted to S.N. Hospital, Kolar and got discharged on 21.10.2014.  During his hospitalization the complainant/deceased Sri.S.N.Prashanth underwent a major surgery to his brain.  The LR’s of the complainant approached OP No.1 several times for settlement of insurance amount, but the same has not been settled by OP-1 though he has disabled permanently.  Hence complainant filed this complaint before this Forum seeking the above reliefs.  When the case is pending before this Forum the complainant Sri.S.N.Prashanth died and his LRs were brought on record.

 

14.   Per contra, OP-1 in its version has submitted that, deceased Sri. S.N.Prashanth is working under the OP-2 hence OP-1 is not liable to pay any compensation.  The complainant is not a Consumer to OP-1 hence this Forum has no jurisdiction to entertain the complaint.  The contention of OP No.1 cannot be accepted as the complainant is employed by the OP-1 and OP-1 sent the complainant to work under the OP-2.  To substantiate this contention the complainant has produced Exhibit – P.3.

 

15.   The OP-3 in the version submitted that, the death took place after lapse of 2 ½ years from the date of the said accident.  The accident took place on 11.09.2013 and Sri.S.N.Prashanth died on 09.01.2016 that is after lapse of 2 ½ years from the date of accident.  OP-3 – insurance company further submitted that, the death of the complainant/Sri.Prashanth is natural death and not an accidental death.  OP No.3 further submitted that, they have no knowledge about the accident and they have not inform the incident immediately after happening of the event.

 

16.   Admittedly OP-1 had employed the complainant i.e., Sri.S.N.Prashanth for OP-2-company.  The OP-1 had obtained the group insurance policy with OP-3 in the name of S.N.Prashanth. The insurance premium was deducted by the OP-1 from the deceased Sri.S.N. Prashanth’s salary as per Exhibit-P.4.   The policy was in force at the time of accident. 

 

17.   Now the crux of the matter is that, whether the deceased Sri. S.N. Prashanth was permanent disabled?  On perusal of the above said policy under the head of “risk covers” it is mentioned as - Death, Permanent Total Disablement & Permanent Partial disablement -.   

 

18.   On perusal of the documents Exhibit P.12 and P.13 it is clear that, the complainant had sustained severally injured at the time of accident and he shifted to R.L. Jalappa Hospital, Kolar, and re-shifted to Manipal Hospital, Bangalore.  The complainant was completely disabled for more than 2½ years.  The LR’s of the complainant has also produced the disability certificate and identity card, in that declaration it is mentioned that, the then complainant Sri.S.N. Prashanth had suffered from right hemiplegia and severe tumaric brain injury, spasticity.  Sri.Prashanth S.N. is permanent disabled.  The percentage of his disability is mentioned as 90%.  Hence from the above facts it is clear that, Sri.S.N.Prashanth was permanently disabled.  According to the policy condition, the deceased Sri.S.N.Prashanth, the LRs of the complainant is eligible to get the policy amount.  Further OP-3 had contended that, as per the terms and conditions of the policy OP No.1 should have intimate about the accident to the insurance company within one month.  The OP-1 had not informed about the accident of Sri.S.N.Prashanth.  On perusal of the e-mail copy produced by the OP-1 it reads as follows:-

“With reference to the above subject, we here by inform you that our employees met with Road Accident while going to the work site at Honda Motorcycle & Scooter India Pvt. Ltd. – Narasapura Industrial area on 11^th Sep 2013 around 5.30 am in kendhatti from kolar Highway 12 km.

 

Policy no.s:

1. 071602/42/13/05/83000018 – 1000 Emp.
2. 071602/42/13/05/00000050 – 2000 Emp.

 

Name of Diseased Employees: Santhosh Kumar S V – ID. No : 40000994

Name of Insured Employee : Prashanth S N – ID. No : 40001074

 

Kindly send us the claim forms at the earliest.”

 

Hence it is clear that, the OP-1 had informed the above accident to OP-3 - Insurance Company. 

19.   Admittedly the OP No.1 had sent e-mail about the complainant/Sri.S.N.Prashanth accident on 11.09.2013.  Hence there was no delay in informing the accident.  On perusal of the fact of the case the OP No.3 had settled the death benefit of Late Sri.Santhosh Kumar who died in the accident which accrued on 11.09.2013.  The complainant being pillion rider had sustained grievous injury and he was in the hospital and thereafter succumbed due to the accident took place on 11.09.2013.  The OP No.3 had settled the death benefit of Late Sri. Santhosh Kumar immediately.  However the claim made by the OP No.3 that the complainant had died after 2½ years of the accident and that it was a natural death and that the death was due to accident cannot be accepted. 

 

20.   Further the claim of the OP No.3 that, the settlement of the claim ought to have been made by the complainant within one month as per the conditions of the policy cannot be accepted.  Since from the date of the accident i.e., from 11.09.2013 the complainant was in a serious condition and was in the hospital for periods of time.  Therefore it is humanly not possible for the complainant to make claim while he was in a serious condition in the hospital.  Therefore the claim made by the OP-3 that, the claim should have been made within 01 month cannot be accepted.  Further the OP No.1 has communicated to the OP No.3 immediately after the accident.  The OP No.3 has settled the benefit of late Sri.Santhosh Kumar, however repudiated the claim of the complainant.  The OP No.1 has informed about the accident to the OP No.3 immediately after occurrence of the accident, when the OP No.3 has settled the claim of Late Sri. Santhosh Kumar the reason assigned by the OP No.3 that, the claim is after 01 month of the date of the accident and that the complainant had died natural death after 2½ years from the date of accident cannot be accepted.  Hence we answered point (A) in the affirmative.

 

POINT (B):

21.   We proceed to pass the following:-

03.01.2017:-

COMPLAINANT/BY SRI.

OPPOSITE PARTY/BY SRI.

ORDER

01.   The complaint is allowed.

02.   The OP No.3 is directed to settle the benefit of the claim made by the LR’s of the complainant within a period of 01 month from the date of this order.  Failing which, interest at the rate of 12% per annum on the claim amount shall be attracted thereafter.   

03.   The OP No.3 is further directed to pay Rs.20,000/- to the LR’s of the complainant towards compensation and Rs.5,000/- towards costs of litigation.

04.   The complaint filed against the OP Nos.1 & 2 is hereby dismissed with no costs.

 

05.   Send a copy of this order to both parties free of cost

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 03^rd DAY OF JANUARY 2017)

 

 

 

LADY MEMBER                          MEMBER                            PRESIDENT