BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 15^th June 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                  : HON’BLE MEMBER

ORDERS IN

                                                                                          C.C. No. 273/2014

(Admitted on 23.07.2014)

Mr. Ramanand,

S/o Kanthappa,

Aged 38 years,

Presently R/a Muthu Shree House,

Iruvail Post, Via Moodbidri,

Mangalore Taluk,

Permanently R/a Haleki House,

Andinje Post, Venur,

Belthangady Taluk.

                                                                   …......COMPLAINANT

(Advocate for the Complainant: Sri MBS)

VERSUS

Oriental Insurance Co Ltd.,

Represented by Senior Divisional Manager,

11/09/05, 1^st Floor,

Katkam, Kristaiah Complex,

City Talkies Road,

Raichur, Karnataka 584102

Policy No.472901/31/2013/10228

Valid from 28/09/2012 to 27/09/2013

                                                                       ….........OPPOSITE PARTY

(Advocate for the Opposite Party: Sri MPB)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI VISHWESHWARA BHAT D:

          The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

     The complainant claims his Wagnor car No.KA.36.M.8764 was insured with opposite party for the period from 28.09.2012 to 27.09.2013 met with an accident while complainant was driving.   He was treated as impatient at KMC Hospital Mangalore for the period from 13.05.2013 to 01.06.2013 as he sustained multiple fractures.  Complainant at the time of purchase of the policy opposite party collected Rs.100 towards personal accident coverage for owner/driver of Rs.2,00,000. When the claim was laid with opposite party towards medical expenses incurred of Rs.3,00,000 for the treatment and other incidental expenses of Rs.75,000 opposite party repudiated the claim.   Hence seeks reliefs claimed in the complaint.

2.     Opposite party in their version admits insurance coverage issued to the vehicle of complainant for the period mentioned in the complaint.  Though collection of Rs.100 towards PA for owner driver risk coverage is admitted and mentions under section 36A period for accident coverage for owner driver only in case of either death or loss of limbs and permanent total disablement payment is permitted.   Hence there is no liability of opposite party to make any payment under the terms and conditions of the policy.   Hence seeks dismissal of the complaint.

3.     In support of the above complaint Mr. Ramanand filed affidavit evidence as CW1 and answered to the interrogatories served on him and produced documents got marked at Ex.C1 to C9 as detailed in the annexure here below.  On behalf of the opposite party Mr. Suresh Balaram (RW1) Senior Divisional Manager, Oriental Insurance Company Ltd., also filed affidavit evidence and answered to the interrogatories served on him and produced documents got marked at Ex.R1 to R2 as detailed in the annexure here below.

4.      In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2.  If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

     The learned counsels for both sides filed notes of argument.   We have considered entire case file on record including evidence tendered by parties.   Our findings on the points are as under follows:

                Point No. (i) : Affirmative

               Point No. (ii) : Negative

               Point No. (iii) : As per the final order.

REASONS

5.      POINTS No. (i):   Opposite party issued insurance certificate covering the vehicle of the complainant in question with the valid period of the incident.  Hence there is relationship as a consumer and service provider is established.  The claim of the complainant that towards the treatment for injuries sustained by him as owner-driver in the accident and thereby entitlement for reimbursement up to Rs.2,00,000/ was disputed by opposite party has there is no permanent disability.  Hence there is live dispute between the parties as contemplated under section 2 (1) (e) of the C P Act.  Hence we answer point No.1 in the affirmative.

6.     POINT NO. (ii):     Ex.C2 is the copy of the wound certificate issued by KMC Hospital in respect of complainant of mentioning about 9 injuries of which injury No. 7, 8, and 9 are described as radius injuries being fractures. However the document does not mention any permanent total disability or loss of limb caused to the complainant.  Ex.C6 is the disability certificate issued by Assistant Professor, Department of Orthopaedics, KMC, Mangalore.  At Ex.C6 there is mention of partial permanent disability of 25% of left upper limb the relevant portion as follows:

1. Restriction of all movements of left wrist, fingers and forearm by 50%
2. Loss of finger grip strength of left hand by 40%.

7.     Ex.C3 is the copy of the insurance policy.

8.     Ex.R1 is the insurance certificate issued by opposite party with standard form for private car package policy marked at Ex.R2.  Even according to complainant opposite party by collecting accident premium of Rs.100 covering the risk of the driver.  At Ex.R2 at section III Personal Accident Cover for Owner-Driver’s entitlement.  The relevant portion of section III table is described as follows:

SECTION III PERSONAL ACCIDENT COVER FOR OWNER-DRIVER

The company undertake 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 driving or mounting into/dismounting from the vehicle insured or whilst travelling in it 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 results in:

Provided always that

1. Compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner-driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.2 lakhs during any one period of insurance.
2. No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (1) intentional self-injury suicide or attempted suicide physical defect or infirmity or (2) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.
3. Such compensation shall be payable directly to the insured or to his/her legal representatives whose receipts shall be the full discharge in respect of the injury to the insured.

2) This cover is subject to

1. The owner driver is the registered owner of the vehicle insured herein;
2. The owner driver is the insured named in this policy.
3. The owner driver holds an effective driving licence in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of the accident.

9.     Thus on going through these portions of driver accident coverage for owner driver as per personally complainant is the owner and driver of the vehicle involved in the accident coverage of the policy in question is issued by opposite party does not fall within the column mentioned in the section III mentioned in the tabulation above.  Hence we are of the considered view that repudiation by opposite party of claim by complainant in the circumstance is justified.  Hence there is no deficiency in service on the part of the opposite party.  Hence we answer point No.2 in the negative.

POINT NO. (iii):         Wherefore the following

ORDER

The complaint is dismissed.

      Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 8 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 15^th June 2017)

             MEMBER                                               PRESIDENT

     (T.C. RAJASHEKAR)                       (VISHWESHWARA BHAT D)

D.K. District Consumer Forum                   D.K. District Consumer Forum

 Additional Bench, Mangalore                     Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1  Mr. Ramanand

Documents marked on behalf of the Complainants:

Ex.C1: Copy of FIR

Ex.C2: Copy of wound certificate

Ex.C3: Copy of Insurance Policy

Ex.C4: Copy of Lawyers notice

Ex.C5: Acknowledgement

Ex.C6: Certificate issued by Dr. Preetham Raj Salian

Ex.C7: Certificate issued by Dr. Manohar V Pai

Ex.C8: Original Impatient bill amounting of Rs.2,22,000/ Issued by KMC Hospital

Ex.C9: Original reports issued by KMC Hospital

Witnesses examined on behalf of the Opposite Party:

RW1  Mr. Suresh Balaram, Senior Divisional Manager,Oriental Insurance Company Ltd.

Documents marked on behalf of the Opposite Party:

Ex.R1: Policy bearing No.472901/31/2013/10228 in respect of Vehicle bearing No.KA-36 M 8764

Ex.R2: Standard Form for private car package policy                  

Dated: 15.06.2017                                   PRESIDENT