COMPLAINT FILED ON 19/10/2019

                                                                                                  DISPOSED ON 19/12/2022

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:585/2019

DATED:19/12/2022

PRESENT: -     Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                       Sri. G. SREEPATHI, B.COM., LL.B., MEMBER       

:JUDGEMENT:

Delivered by Hon’ble President, Kum. H.N. MEENA.

The complainants have filed this complaint under section 12 of Consumer Protection Act, 1986 for seeking the relief by praying to direct the opponent to settle under the P.A. for owner cum driver benefit of  Rs.15,00,000/-, as compensation of Rs.1,00,000/- on account of mental agony, loss of income till this date sustained by the complainant and  other expenses @ 18% p.a. from the date of accident and pass such other reliefs as this Hon’ble Commission may deems fit and proper in the  interest of Justice. 

2. The brief facts of the complaint:

The complainant No.1 is the wife, complainant No.2 and 3 are the daughters and complainant No.4 claims to be the mother of one deceased Sri Mohan Kumar.T. S/o Late Thippeswamy B.T. the owner of the vehicle Mahindra Xylo bearing Reg. KA-14/B-1991 is and the deceased has purchased the said vehicle from the actual owner in the year of 2017 for the purpose of his livelihood and also he has used the said vehicle for catering purpose and he has running the catering under the name and style of Bhargavi Catering at Challakere.

3. Complainants alleged that, on 08/04/2019 at about 6.30 am as stated by the complainant the deceased Mohan Kumar T S/o Thippeswamy. B.T. was traveling along with his family members from Challakere to Goravanahalli Mahalakshmi Temple. When the vehicle came near Yaraballi village on Challakere-Hiriyur National Highway- 150, the deceased Mohan Kumar.T. was driving the vehicle and he lost the control of the vehicle and toppled the vehicle  and in the said accident the deceased Mohan Kumar.T. has sustained injuries to his head, abdomen and vital parts of the body. Due to the said accident deceased Mohan Kumar.T. was died at the spot due to accidental injuries.

4. After the accident the deceased Mohan Kumar was taken to Govt. Hospital, Challakere and in the said Hospital doctor has conducted PM (Post-Mortem) and given the dead body to the hands of complainant No.1 and she has brought the dead body to the Challakere Town and funeralised as per their customs and conducted Shivaganaradhane of deceased Mohan Kumar.T.

5. The complainants stated that, the deceased Mohan Kumar.T has obtained policy vide No.10003/31/19/715734 to the vehicle bearing Reg. KA-14/B-1991 from 16/03/2019 to 14/03/2020 and the said policy covers the risk of owner cum driver for an amount of Rs.15,00,000/-, since opponent has collected a premium
of Rs.315/-.

6. The complainants further stated in this complaint that, they have intimated to opponent insurance company regarding the accident which occurred on 08/04/2019 and the death of Mohan Kumar T. The complainant has given the necessary application along with the documents to the opposite party for the purpose of claiming the damage to the vehicle and the insurance amount, but till this date the opponent insurance company not settled, but surprisingly on 23/07/2019 the opponent have repudiated the claim of the complainant. Even in spite of collecting papers and obtaining signature on the claim form, the opponent insurance company have not settled any claim of the complainants for the benefit under personal accident. Stating the letter to the deceased itself and also mentioned wrong policy number and also mentioned wrong vehicle number.

7. The complainant complained that, the complainant No.1 has visited number of times to the Branch Office, at Bengaluru for settlement of the claim, but opposite party has never settle the claim of the complainant reason for this was the negligent act of the opponent.

8. The cause of action for the complainant has arose to file this complaint is on 08/04/2019, which the vehicle met with accident and insured has died due to accidental injuries and also on 23/07/2019 the date on which the opponent have repudiated the claim of the complainants. Hence, this complaint comes under the jurisdiction of this Hon’ble commission. 

9. After registering the complaint, The Hon’ble Commission has issued Notice to opponent, notice duly served on 16/11/2019. Wherefore, opponent have filed their version.

10. Version filed by the Opponent to submit as here under:

Opponent filed their version, denied the allegations made in the complaint para No.1 to 10.

a) It is submitted that, this opponent has received accidental information from the complainant immediately wrote a letter to the complainant to furnish the documents as mentioned in letter through RPAD. The said notice duly served to complainant, in spite of it complainants have not furnished the documents.  Hence with no alternative way this opponent on 23-07-2019 send the repudiation letter to complainant through RPAD. There is no negligence on the part this opponent to settle the claim.

b) It is false to say complainant No 1 has visited so many times to the branch office at Bangalore. This fact is created story to file this false compliant.

c) It is submitted that, without prejudice to the above contention and without admitting the liability that this opponents submits that at the time of alleged accident deceased had no valid and effective DL to drive the Mahindra Xylo. This is within the knowledge of deceased himself, in spite of it deceased has driving the vehicle without valid and effective DL. Deceased (owner of the vehicle) has violated the terms and conditions of the policy and MV rules. Hence this opponent is not liable to pay any compensation to the complainant.

d) There is no cause of action to file this complainant. The cause of action alleged in para No 9 of the complaint are all false and created for the purpose of filing this complaint.

e) It is submitted that, the several allegations alleged in the complaint which are not specifically admitted and which are against the contents of this version are all false. The complainants are not entitled for any relief as sought in their complaint. Therefore, it is respectfully prayed that this Hon’ble court may kindly pleased to dismiss the petition with cost.

11. The complainant No.1 got herself examined as PW-1 by filing her affidavit as  a part of examination-in-chief  and the documents
Ex.A-1 to Ex.A-14 were got marked and closed their side evidence.

12. The opponent have examined as DW-1 and the documents were marked as Ex B-1 to B-5 and closed the evidence on their side Complainant and opponents have filed their written Arguments, Arguments of Complainants and Opponent were heard.

        13. Now, the points that arise for our consideration for decision of above complaint are that:

1. Whether the complainant proves that the opponents are negligent and there is deficiency in service?
2. Whether the complainant is entitle for reliefs as sought in the complaint?
3. What order?

14. Our finding on the above points are as follows:

a) (i)  Affirmative.

b) (ii) Partly in Affirmative.

c) (iii) As per final order.

REASONS

15. Point No.1 & 2: We have gone through the pleading of complaint and documents submitted by the both parties. It is clear case of the complaint that. She is claiming P.A. Coverage of Insurance by the OP of her deceased husband.

        16. In this case complainant submits that, the complainant No.1 is the wife of deceased Mohan Kumar.T., complainant No.2 and 3 are daughters and complainant No.4 is mother of deceased Mohan Kumar.T., The complainants No.1 to 4 are legal heirs of deceased Mohan Kumar T., he is the owner of the vehicle Mahindra Xylo bearing Reg. KA-14/B-1991. The deceased has purchased the said vehicle from the actual owner in the year of 2017 for the purpose of his livelihood. 

17. The deceased Mohan Kumar.T has obtained vehicle policy vide No.10003/31/19/715734 to the vehicle bearing Reg. KA-14/B-1991 was existing from 16/03/2019 to 14/03/2020  for premium of Rs.28,233/-. In this policy OP company received Rs. 315/- for personal accident covers Rs.15,00,000/-.

18. In the back ground of above said fact, we perused all the documents produced by both parties. The complainant side documents are got marked as Exhibits A-1 to 14 that is policy copy, FIR, Spot Mahazar, Inquest report, Adhar Cards of deceased Mohan Kumar.T family, Fitness certificate, Original permit copy of Driving license of deceased Mohan Kumar. T., repudiation letter, genealogy tree and intimation letter, these documents are substantiate facts of the case, that is complainants husband avail the policy and accident took at the time driving the said vehicle and he died due to alleged accident finally Policy was existing at the time of accident and P.A. coverage of Rs.15,00,000/-

19. In the mean while on 08/04/2019 at about 6:30 pm. The deceased Mohan Kumar T. S/o Thippeswamy was traveling along with her family member from Challakere to Goravanahalli Mahalakshmi Temple, where the vehicle came near Yaraballi Village on Challakere-Hiriyur National Highway-150, the deceased Mohan Kumar.T. was driving the vehicle and he lost the control of the vehicle and toppled the vehicle  in the  accident, the deceased Mohan Kumar.T. S/o Thippeswamy has sustained injuries. Due to the said accident deceased Mohan Kumar.T. was died at the spot due to accidental injuries. After the accident shifted to Govt. Hospital, Challakere. The Hospital Doctor has conducted P.M. examination.

        20. There after complainant has claimed policy amount as Legal heirs of deceased husband but OP has issued repudiation letter dated 23/07/2019. The opponent alleged that, at the time of accident deceased had no valid and effective D.L. to drive the Mahindra Xylo and another contention is that, at the time of accident alleged vehicle was overloaded as per R.C. seating capacity of the vehicle.

21. In the back ground of above said fact. We perused the documents of complainant that is FIR, Charge sheet, Complaint, Inquest Report, Spot Panchanama, all these documents are got marked. FIR and Charge sheet and other documents reveal the truth that, above said accident caused injuries to the deceased person
Sri Mohan kumar T., Due to the said accident deceased
Mohan Kumar T., was died at the spot due to accidental injuries. In this regard Hiriyur Police have registered complaint in Crime No. 92/2019. Further it is pertinent to note that, we carefully perused the FIR, Charge sheet, and inquest Report and statement of I.M.V. Report all are clearly reveals the truth that, the cause of death of deceased Mohan Kumar T. specifically Doctor opinion on 10/05/2019 while conducting Post Mortem clearly said that, the cause of death of above said person is to injuries to vital organ like brain in severely to RTA.  The Post Mortem finding are consistent with alleged history of death due to consequences of road accident. More over FIR and charge sheet and Inquest Report and I.M.V. Report are the significant documents these are public documents and having evidentiary value and also having statutory prominence, on those documents taken into consideration in believing the alleged accident. For that reason in the above said case insured person was eligible for P.A. coverage. In case of death of life assured his legal heirs are entitled for receiving the P.A. coverage.

22. In spite of this as per Ex.A-12 repudiation letter submitted by the complainant that, at the time of accident vehicle was overloaded as per RC seating capacity of vehicle. In this regard we perused the Motor vehicle accident report issued by Inspector of Motor Vehicle, he is opined that, the accident was not caused due to any mechanical defects of that motor vehicle. The above said accident is not occurred of overloaded. The insurance company failed to prove by producing any evidence on record. The accident occurred on account of the overloaded the Insurance Company has not produced any evidence on record to prove that, the accident occurred on account of overloading. The Insurance Company has failed to prove the alleged point of overloading.

23. The insurance company has taken an another contention that, at the time of alleged accident deceased had no valid and effective D.L. to drive the Mahindra Xylo we observed the Ex.A-11, it is very clearly reveal the truth that, deceased Mohan Kumar T., has having valid and effective D.L. at the time of accident it is valid from 29/08/2017 to 19/06/2024. Driving licence is exist at the time of accident. The complainant has proved the deficiency in service on the part of the OP. The complainants are entitled for P.A. coverage of Rs.15,00,000/- from OP insurance company. More over opponent reject the claim of the complainant.

24. On the ground of overloading capacity by way of breach of the terms of Insurance Rules & conditions in this regard, we cited decision reported in National Consumer Dispute Redressal Commission, New Delhi, reported in 2010(3) CPR 38 (NC) The Manager, The United Insurance Co. Ltd. Vs Sri B. Ugandar as here under:

Consumer Protection Act, 1986-Sections 12 and 17- Insurance claim – Taxi Cab carrying eight persons as against sanctioned capacity of six persons met with accident by colliding against another vehicle – There was no fitness certificate of vehicle at the time of accident – Carriage of eight passengers against sanctioned capacity of six could not be construed as major violation or breach of conditions of policy.

 25. The above citation is applicable to the present case. It is pertinent to note that, on careful perusal of the policy certificate, Nominee column says as N.A. In this regard complainant has filed the genealogical certificate of living Members of the family certificate and Aadhar cards of family members of complainant No.1 to 4, complainant also filed the Notarized declaration certificate of genealogical tree. These documents shows that, above said deceased person has left the complainants No.1 to 4 behind the back of his death, above said documents are shows as genuine documents opponent has not disputed the records. For that reasons complainant No.1 to 4 are entitled to received the claim amount of Rs.15,00,000/- of P.A. Risk coverage, and opponent company has hereby directed that, issue the claim of the complainant No.1 to 4 P.A. coverage amount of Rs.15,00,000/- to the family members, that is complainant No.1 to 4 of deceased person. They are entitle to receive their the P.A. coverage amount of Rs.15,00,000/-.

26. The complainants have proved deficiency in service on the part of OP. The complainants are entitled for Rs. 15,00,000/- and claim for compensation for mental agony and cost of proceeding at Rs.5,000/-along with interest. Accordingly we answer the Point No. 1 and 2 Partly in the affirmative.

27. Point No.3:  Hence, in the light of above discussion we proceed to pass the following.

::ORDER::

1. The complaint filed by the complainant U/s.12 of Consumer Protection Act, 1986 is Partly allowed.
2. The OP, shall pay the P.A. coverage amount of Rs.15,00,000/- to complainants No.1 to 4 along with interest at the rate of 6% p.a. from the date of this order.
3. The OP, shall pay Rs.2,000/- towards the cost of complaint and also pay for the physical and mental agony of Rs.3,000/- to complainants No.1 to 4.
4. The OP, shall pay the above said award amount within 30 days from the date of this order.
5. Send the free copies to both parties.

 (Typed directly on the computer to the dictation given to stenographer, the transcript corrected, revised and then pronounced by us on 19^th December 2022.)

        MEMBER                                              PRESIDENT

-:ANNEXURES:-

Witness examined on behalf of Complainant:

PW-1:- Smt. Radha. J W/o Late Mohan Kumar.T by way of
            affidavit of evidence.

Witness examined on behalf of opponents:

DW-1:- Sri Pradeep. D.S. S/o Siddanagouda by way of affidavit

           of evidence

Documents marked on behalf of Complainant:

Documents marked on behalf of opponents:

  MEMBER                                                    PRESIDENT

*GM