::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL COMMISSION AT BIDAR::

                                                             C.C. No.03/2020.

                                                                                                                            Date of filing: 06.01.2020.

                                                              Date of disposal: 06.06.2023.

P R E S E N Ts:-    

                                (1) Shri. Mabu Saheb H.Chabbi,                                                                                                               B.Com.,LL.B.,(Spl.),

                                                                                 President.,  

                                (2) Kum. Kavita,

                                                               M.A.,LL.B.,(Spl.),  

                                                                         Member.

                                   (3) Shri.Thriyambakeshwara,

                                                                                   B.A.,LL.B.,(Spl.), 

                                                                                           Member.

COMPLAINANT/S                    1.    Ambadas Rao S/o Ramanna,

                                                      Age: 44 Occ: Coolie, now -Nil- as mentally
                                                      disordered, Represented by his next friend
                                                      and legally wedded wife
                                                      Chandrakala w/o Ambadas Rao,

                                                      Age:41-years Occu: House hold
                                                      R/o House No. 14-5-154 Koti Lingan Gouda
                                                      colony Shahpur Gate, Bidar.          

                                                         (By Sri.Sayaji A.Patil &
                                                         Sri. Rajkumar K. Advocate.)                  

                                                                                           V/s

OPPONENT/S                            1.  The Branch Manager,

                                                      United India Insurance Company Ltd.,                  
                                                      Basava Shree Complex#8 10-268 to 273
                                                      1^st floor behind Ganesh Maidan Stadium
                                                      Road Bidar 585401 (Karnataka).

                                                      (By.Sri.M.A.Khan, Advocate.)

                                                                                     ::  J U D G M E N T  ::

By. Shri.Thriyambakeshwara. Member

The complaint filed by complainant under section 12 of the Consumer Protection Act, 1986, against the opponent for the deficiency in service in not settling the P.A. Insurance claim. Hence, passed the following judgement.

Brief facts of the complaint.

The brief facts of the complaint are as follows: -

1.         That, the insured Ambadas s/o Ramanna is the husband of complainant,  who was the registered owner of motor cycle bearing Reg. No.KA38S/1058 insured with OP under Policy No.2406023118P110237237, which covers the risk of owner-cum-driver for a period of one year i.e., from 08.11.2018 to 07.11.2019. The insured was working as a Coolie. On 13-06-2019, at about 9.15-p.m, the husband of complainant/insured was proceeding on his motor cycle bearing Reg.No.KA38S/1058 from Basveshwar Circle towards Shahapur Gate and at the same time another rider of motor cycle bearing Reg.No.KA38/S 2171 came from Mangalpet towards Fathe-Darwaz, riding his motor cycle in rash & negligent manner and both motor cycles met with accident in face to face. As a result, the insured sustained grievous head injury and blood was oozed from ears. One Santosh S/o Narsing Andole R/o Shahapur Gate, who witnessed the incident intimated to Ashok, the son of insured on phone about the accident, and shifted the insured AmbadasRao to Govt. Hospital Bidar. Immediately, the son of insured Akash rushed to the Hospital and seen his father AmbadasRao sustained grievous internal head injury and blood was oozing from his left ear, & also sustained lacerated wound on right hand fingers and right leg, and he was unconscious.

2.         That, after providing the preliminary treatment, on the same day the insured AmbadasRao was referred to higher centre by Govt.Hospital, as he sustained internal grievous head injury, and he became unconscious. Hence, the insured Ambadas Rao was admitted at higher centre i.e., in VINN Hospital Hyderabad at 03.20 a.m on 14-06-2019, and wherein he undergone for  operation, and he was discharged on
28-06-2019 with a advise for follow up treatment, and the injured Ambadas Rao is still under regular follow up treatment in Apex Hospital Bidar.  

3.         That, on the MLC issued by the Govt. Hospital Bidar, the Police Traffic Bidar, visited the Govt. Hospital Bidar, recorded the statement of Akash, the son of insured and registered the case in Crime No.59/2019 for the offence U/Sec. 279, 337, & 338 of IPC, against both the riders of offended motor cycles and issued the FIR, and filed the charge sheet.

4.         The complainant is the legally wedded wife of insured Ambadas Rao s/o Ramann r/o Keti Lingan Gouda colony Shahpur Gate, Bidar who sustained grievous head injury and whereby insured became mentally disordered, therefore this complaint is submitted through complainant on behalf of insured.

5.         That, the complainant being the legally wedded wife of insured approached the OP with a request to settle the claim. But, the OP did not take any action about the said claim. The complainant issued legal notice to the OP on 18-11-2019, for which OP flatly refused orally to complainant about claim without any valid or genuine reasons. Hence, complainant filed this complaint with a prayer to allow this complaint and to award the compensation to the tune of Rs.19,00,000/- with interest thereon @ 18% p.a. from the date of accident of insured AmbadasRao S/o Ramanna, till its realization of insured amount.

Written Version of OP.

6.         The notices issued by this commission to the OP served and he appeared before this commission through his counsel, and filed his written version by categorically denying almost all averments against him which are as fallows.

7.         Firstly, the Complaint in the present form filed through next friend through complainant is not maintainable. The Complainant not produced any Medical Certificate to show that, he is mentally disordered and not in a position to appear before this Hon'ble Commission and prosecute the complaint. In the absence of such Medical Record, the complaint filed through next friend is not maintainable and fit to be dismissed.  Secondly, the Complainant has no cause of action to file the complaint, since no claim is made by the Complainant before the OP Company by furnishing required documents, nor any such claim is repudiated by the OP Company. In view of this, when no such claim is made by Complainant before the OP Company and thereby, no such claim is rejected or repudiated.  The complaint directly filed before this Hon'ble Commission without submission claim before OP, is without cause of action and fit to be dismissed.  Thirdly the policy issued by OP Company covering the risk of owner/driver is restricted to particular and specific injuries as contained in the policy document on page 7, reproduced below;

Admittedly, the Complainant not suffered any loss of limb or eyesight, but he is claiming under permanent disablement from injury other than named above. Hence, unless it is proved from his physical appearance and Medical Record that, he has such permanent disablement, his complaint cannot be entertained simply on the ground that, he had some fracture and head injury in the accident, and filed the complaint through his next friend. For all these reasons, the complaint is fit to be dismissed.  Similarly, as per record, the accident took place between two vehicles i.e. two motorcycles, and case is also charge sheeted by the police against both riders, hence the Complainant ought to have made claim before Motor Accident Claims Tribunal, against the owner and insurer of offended motorcycle bearing No. KA 38 S 2171. With the above preliminary objections, now the OP Company wants to proceed on the merits of complaint.  The OP Company does not dispute that, the Insofar as Complainant is the registered owner of Motorcycle bearing No. KA 38 S 1058 and it is insured with this OP Company. Insofar as manner of alleged accident is concerned, the OP Company does not dispute that, it took place due to rash & negligent riding on the part of riders of both motorcycles. The OP Company does not admit the contention of the claimant about nature of injuries, period of treatment etc., since it is not within the knowledge of OP. The registration of case by the police against riders of both motorcycles is not disputed. The Complainant has made false statement in Para No. 8 of the complaint stating that, she intimated so, many times the OP about the incident. This is a false allegation, and if the Complainant is not successful in proving her contention, the complaint is fit to be dismissed. As stated above, except issuing notice, the Complainant has not at all submitted any claim in the prescribed format before this OP and such claim is neither repudiated nor rejected. Without making claim with the OP, the Complainant by adopting short cut, approached this Hon'ble Commission, without there being any such cause for doing so.  Hence, the complaint is without cause of action, is fit to be dismissed.

Evidence of complainant.

8.         The complainant examined herself as P.W.1 and P.W.2 Sri.Dr.Rajendra Kothari S/o Pratapchand Senior Surgeon, was examined on behalf of complainant and got marked documents Ex.P.1 to Ex.P.68 which are as follows,

1. Ex.P.1-True copy of FIR.
2. Ex.P.2- T/c of complaint dt13.06.2019.
3. Ex.P.3-T/c of Panchanama in Cr.No.59/2019.
4. Ex.P.4- T/c M.V.Reort.
5. Ex.P.5- T/c charge sheet.
6. Ex.P.6- T/c Wound certificate issued by Bidar Institute of medical Sciences & Teaching Hospital Bidar.
7. Ex.P.7-Copy of Referral letter dt:13.06.2019.
8. Ex.P.8-Copy of discharge summary issued by VINN Hospital dt:14.06.2019.
9. Ex.P.9-Copy of Insurance policy.
10. Ex.P.10-Copy of RC book.
11. Ex.P.11-Copy of DL.
12. Ex.P.12&12(1)-Copy of Legal notice dt:18.11.2019 and postal receipt.
13. Ex.P.13&13(1)-Two Colour Photos copy of complainant.
14. Ex.P.14-Copy of Medical disability certificate of Kothari Hospital dt:17.08.2021.
15. Ex.P.15-X-Ray Report of dt:17.08.2021.
16. Ex.P.16-T/c Pharmacy Receipt issued by VINN Hospital dt:14.06.2019.
17. Ex.P.17-T/c Final bill issued by VINN Hospital 16.09.2019.
18. Ex.P.18 -IP Admission receipt
19. Ex.P.19 to 64-Advance receipt, Medical Receipts and investigation receipt of VINN Hospital.
20. Ex.P.65&66-T/c Prabhu Medical bill receipt dt:10.10.2020&05.11.2020.
21. Ex.P.67-T/c X-Ray film.
22. Ex.P.68-T/c of prescriptions (10 nos.).

Evidence of Opponent.

9.         In similar manner One Hirgappa Chandru S/o Saibanna examined as R.W.1 on behalf of OP company, and no documents marked on his behalf.

Points/Issues.

10.       On perusal of pleadings, evidence of the both parties and documents, this commission raised the points for discussion as below;

1. Whether the complainant proves that, she is consumer to OP and further proves any deficiency in service by the OP in not settling her insurance claim?  
2. Whether the OP proves that, the complaint filed by complainant is premature?
3. Whether the complainant is entitled for any relief as sought in her complaint? If so, What orders? 

11.       Our answers to the points raised above are as follows: -

1. In the negative.
2. In the affirmative.
3. In the affirmative and as per the final order.

Points No 1 to 3

12.       In order to decide the complaint issues, this commission discussed points/issues No.1 to 3 altogether for discussion as each points are inter related to each other- as follows.

13.       In order to prove the case of the complaint, the complainant lead her evidence as P.W.1 by way of reiterating the complaint facts and got marked Ex.P.1 to Ex.P.68 documents and further she also lead the evidence of Senior Surgeon Govt. Hospital Bidar, as P.W.2 who issued disability certificate on her husband, and in similar manner, OP also examined himself as per R.W.1 and he did not produce any documents.  On perusal of overall pleadings, evidence of both kinds of the parties, it is not in dispute that, the husband of complainant had purchased Ex.P.9 Insurance Policy in question from OP which was in force as on the date of accident on 13.06.2019 of insured as per Ex.P.9. and Ex.P.10 is the RC extract of complainant’s husband vehicle and Ex.P.11 is valid D.L. pertaining to husband of complainant and Ex.P.1 to 6 are the documents in proof of accident met by husband of complainant/insured and injury were suffered as per Ex.P.6, and as per Ex.P.7 he was referred for higher treatment to Hyderabad Hospital by BRIMS Bidar.  And, as per Ex.P.14 Medical Disability Certificate dt:17.08.2021, it was issued by Dr. Rajendra Kothari i.e., P.W.2, and Ex.P.19 to 64 are the various advance receipts/pharmacy receipts/investigation receipts in respect of the treatment of complainant’s husband and further as per Ex.P.12, the complainant issued legal notice dt:18.11.2019, calling upon the OP for settlement of the claim.  However, on perusal of entre documents produced by the complainant on record, absolutely there is no single document to show that, complainant submitted claim before the OP by claiming the insured amount from OP.  Therefore, though the complainant is consumer to OP as a legally wedded wife of insured and in view of validity of the policy in question during the accident period and the RC extract and D.L. of complainant husband were also in force and valid, but there is no such claim submission before OP as prayed in complaint within 2 years from the date of accident, calling upon OP to pay the compensation amount. Therefore, the submission of the OP has got force in his stand taken in the written version.  Even, on perusal of the evidence of complainant, absolutely there is no denial of OP denied complaint facts as per his W.V.  Hence, under the said circumstances of non denial or traversing of OP stand as per his W.V, by the complainant in his evidence shows that, earlier to issuance of legal notice, the complainant did not submit claim form along with required documents before OP within 2 years from the date of accident. Further, complainant is also not filed any application of condonation of delay either along with complaint or even   raising such objections by OP.  Hence, the stand taken by the OP that, complainant is premature for non submission of claim by complainant before OP holds good under law. 

14.       On perusal of the W.V. filed by OP, he raised number of defenses stating that, the policy issued by OP Company covering the risk of owner/driver is restricted to particular and specific injuries as contained in the policy document on page 7, reproduced below;

Admittedly, the Complainant not suffered any loss of limb or eyesight, but he is claiming under permanent disablement from injury other than named above. Hence, unless it is proved from his physical appearance and Medical Record that, he has such permanent disablement, his complaint cannot be entertained simply on the ground that, he had suffered some fracture and head injury in the said accident, and filed the complaint through his next friend. For all these reasons, OP prayed for dismissal of complaint.  On perusal of the above stand of OP, if we peruse the Ex.P.14 Medical Disability Certificate dt:17.01.2021, issued by P.W.2, speaks that, the Cumulative disability sustained by patient in accident by 42% to entire body and his deposition as P.W.2 speaking that, patient had grievous  traumatic brain injury comminute fracture injury as found clinically and Radio logically following the accident would amount to such percentage of disability due to Insured developed Epileptic fits following accident, de-compressive craniotomy was done, will not cover disability under prescribed eligibility criteria as stated above by OP.  Presently, he has attacks of seizures 4-7 per month which accounts for Neurological disability of 35% and further loss of hearing in left ear is due to damage to auditory nerve accounts for disability of 10% and thereby based on the above injuries he opined 42% disability to entire body, which is not coming under the schedule prescribed by OP in policy as shown here in above.  Therefore, even for this reason also the claim of the complainant do not holds good under law.

15.       The complainant vehemently contended that, the 42% disability suffered by is well covered under the policy as such disability amounts to liability of OP towards complainant by relying on the judgement Karnataka High Courted reported in 2021 Kant MAC 172 (Kant).  On perusal of the said citation, their lordships discussed the said liability under Section 140 &163 (a) of M.V.Act, but not under P.A. insurance coverable under C.P.Act 1986/2019. And another judgement of Hon’ble KSCDRC in Appeal No.1316/2012, wherein their lordship discussed in different set of facts than instant case facts, as in that case OP not disputed the disability issued by doctor and where as in the instant case the OP highly disputed the said Disability Certificate issued by P.W.2, accounting to eligibility of percentage as prescribed under above table of eligibility percentage as per policy terms and conditions.  Hence, with due respect to the said decision of Hon’ble State Commission, this commission distinguished the same from present facts of complaint.  And further the complainant also relied on Chattisgarh SCDRC reported decision in IV (2010) CPJ 376, which is also not applicable to the facts in hand of instant case.  Therefore, in any angle the claim of the complainant is not covering within the corners of terms and conditions of OP policy schedule.  Hence, the complainant failed to prove his case of entitlement of his 42% disability to entire body amounts to 50% disability or 100% disability, as covered under policy.  The OP rightly contended that, the Traffic police Bidar had charge sheeted against owners of the both Motor Cycle due to their rash & negligent driving and in view of the same complainant is at liberty to claim the compensation for the same before competent Tribunals/Courts, if he advised so.  Moreover, the complainant utterly failed to prove that, he submitted claim before OP along with required documents for processing the claim by OP within 2 years from the date of accident except Ex.P.12 legal notice  dt:18.11.2019, which does not amount to commencement of cause of action unless submission of claim along with documents before OP.  Absolutely there is no cause of action arose to file the complaint as contended by the OP.  Hence, this commission is of the opinion that, the complaint is premature one and no cause of action arose to him as claim is not repudiated by OP, accordingly the complaint filed by the complainant deserves to be dismissed.  

16.       Hence, we are of the considered view that, the complainant failed to prove her case for claim and whereas the OP succeeded in proving his case of no cause of action to file compliant by complainant.  Therefore, we answered the point No 1 and 3 in negative against to complainant and point No. 2 in affirmative in favor of OP and proceed to pass the following order.

::ORDER::

        The complaint u/s 12 of CP Act 1986, filed by the complainant is hereby dismissed with no order as to cost.

            Intimate the parties accordingly.                         

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Commission on this   06^th day of June-2023).

Documents produced by the complainant.

1. Ex.P.1-True copy of FIR.
2. Ex.P.2- T/c of complaint dt13.06.2019.
3. Ex.P.3-T/c of Panchanama in Cr.No.59/2019.
4. Ex.P.4- T/c M.V.Reort.
5. Ex.P.5- T/c charge sheet.
6. Ex.P.6- T/c Wound certificate issued by Bidar Institute of medical Sciences & Teaching Hospital Bidar.
7. Ex.P.7-Copy of Referral letter dt:13.06.2019.
8. Ex.P.8-Copy of discharge summary issued by VINN Hospital dt:14.06.2019.
9. Ex.P.9-Copy of Insurance policy.
10. Ex.P.10-Copy of RC book.
11. Ex.P.11-Copy of DL.
12. Ex.P.12&12(1)-Copy of Legal notice dt:18.11.2019 and postal receipt.
13. Ex.P.13&13(1)-Two Colour Photos copy of complainant.
14. Ex.P.14-Copy of Medical disability certificate of Kothari Hospital dt:17.08.2021.
15. Ex.P.15-X-Ray Report of dt:17.08.2021.
16. Ex.P.16-T/c Pharmacy Receipt issued by VINN Hospital dt:14.06.2019.
17. Ex.P.17-T/c Final bill issued by VINN Hospital 16.09.2019.
18. Ex.P.18 -IP Admission receipt
19. Ex.P.19 to 64-Advance receipt, Medical Receipts and investigation receipt of VINN Hospital.
20. Ex.P.65&66-T/c Prabhu Medical bill receipt dt:10.10.2020&05.11.2020.
21. Ex.P.67-T/c X-Ray film.
22. Ex.P.68-T/c of prescriptions (10 nos.).

Document produced by the Opponent.

-Nil-

Witness examined.

P.W.1- Ambadas Rao S/o Ramanna,         (complainant).

P.W.2- Sri.Dr.Rajendra Kothari S/o Pratapchand Senior Surgeon.

R.W.1- Hirgappa Chandru S/o Saibanna