Karnataka

Chitradurga

CC/85/2016

Naseema Banu W/o late Ismail Baig - Complainant(s)

Versus

The Branch Manager,Sri Ram General Insurance Co Ltd., - Opp.Party(s)

Shri.C.Mohammedh Samiulla

31 Aug 2017

ORDER

COMPLAINT FILED ON:15/09/2016

DISPOSED      ON:31/08/2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 85/2016

 

DATED: 31^st AUGUST 2017

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        : MEMBER

                          B.A., LL.B.,   

……COMPLAINANT/S	Naseema Banu S/o Late Ismail Baig, Age: 23 Years, House Wife, R/o Near Bus Stand, Mubarak Mohalla, Molkalmuru Town.   (Rep by Sri. C. Mohammed Samiulla, Advocate)
V/S
…..OPPOSITE PARTY	The Branch Manager, Sriram General Insurance Co. Ltd., Vaniogotra Complex, B.D. Road, Chitradurga. (Rep by Sri.S.N. Pranesh, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P. Act, 1986 for the relief to direct the OP to pay a sum of Rs.2,00,000/- as per policy terms and conditions along with interest at the rate of 12% p.a from 14.06.2016 till realization and such other reliefs.

2.      The brief facts of the case of the above complainant are that, the husband of the complainant deceased Ismail Baig was the owner of lorry bearing Reg.No.KA-34-8671, was having valid heavy goods vehicle license of his own and he was discharging both owner-cum-driver duties in respect of the above said lorry.    The OP has issued insurance policy bearing No.10003-31-13-127983 which was lid for the period from 23.06.2012 to 22.06.2013.  It is further submitted that, on 08.11.2012, when the husband of complainant was driving the above said lorry, one JCB vehicle came from opposite direction and dashed to the vehicle of the husband of the complainant.  On account of the said accident, the husband of the complainant died at the spot.  After the death of her husband in a Motor Vehicle Accident, complainant filed a MVC Petition bearing No.MVC No.140/2013 before the Hon’ble II Additional Civil Judge (Sr,Dn), Chitradurga against the Insurance Co., of JCB Vehicle.  The said petition was allowed on 11.08.2014 in favour of complainant by awarding suitable compensation.  It is further submitted that, the husband of the complainant deceased Ismail Baig was owning a lorry bearing Reg. No.KA-34-M-8671 having all the relevant documents on the date of accident.  The entire premium towards insurance and also separate premium amount of Rs.100/- under the head owner-cum-driver covering the risk of owner up to Rs.2,00,000/- has been paid by the deceased husband of complainant.  After disposal of MVC No.140/2013 the complainant submitted all the relevant documents to the OP along with claim form seeking compensation amount of Rs.2,00,000/- as per the terms of the policy.  In spite of several requests made by the complainant, OP did not initiate any due process in sanctioning the claim amount.  It is further submitted that, complainant has issued legal notice on 14.06.2016 through her advocate.  In spite of service of notice, OP has not taken any suitable action, therefore there is a deficiency in service on the part of OP.        The cause action for the complaint arose on 14.06.2016 when the complainant issued legal.  Therefore, the complainant has respectfully prayed before this Forum to allow his complaint with cost. 

3.      On service of notice, OP appeared through Sri.S.N. Pranesh, Advocate and filed version denying the averments made in para 1 to 9 of the complaint.  It is submitted that, the complaint is not maintainable.  The personal accident benefit is not available to the insured in case of third party accident claims.  In this case, as per the complainant, her husband died due to rash and negligent act of the driver of JCB in a road traffic accident took place on 08.11.2012.  It is further submitted that, as per the documents produced by the complainant, the JCB bearing Reg.No.KA-16-M-6123 was insured with the Reliance General Insurance Co. Ltd., and the complainant has taken claim in MVC No.140/2013.  The accident was not taken place due to own negligence of the husband of the complainant, therefore, paying of Rs.2,00,000/- under the head personal accident benefit does not arise.  To claim personal accident benefit, the death should took place due to own negligence of the driver-cum-owner, not under any other circumstances, therefore, the complaint is not maintainable and the same liable to be dismissed with cost.  The complainant has taken compensation from OP insurance company under all the available heads and once again the complaint filed this complaint under the head of Personal Accident Benefit which is not maintainable.  It is further submitted that, the claim of POA there should not be involvement of any other vehicle in the Road Traffic Accident, whereas in this case, the accident took place due to negligence on the part of driver of the JCB.  The present complaint is totally false, frivolous, vexatious and is wholly misconceived, the same is filed with a malafide intention to harass the OP and there is no limitation to file this complaint.  This Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute.  It is further submitted that, the insurance was a contract if any entered into between the complainant and the OP and the OP accepted premium and agreed to indemnify the insured provided that, there should not be breach of any terms and conditions of policy i.e., policy is subject to terms and conditions.  The complainant agreed the said terms and conditions and accepted the policy, therefore, the OP is not liable to pay any compensation, since the complainant is violated the terms and conditions of the policy.  Therefore, the OP has not committed any deficiency in service or unfair trade practice.  In view of the above stated facts prayed for dismissal of the complaint.

         4.       Complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-3(v) were got marked. On behalf of OP, one Sri. A.P. Abhinandan S/o T. Puttaswamy, Law Officer, has examined as DW-1 by filing the affidavit evidence and Ex.B-1 document has been got marked.  

 

5.      Arguments of both sides heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

 

(1)  Whether the complainant proves that, the delay in filing the complaint is to be condoned and the OP has committed deficiency in service in settling the claim made by her and entitled for the reliefs as prayed for in the above complaint?

              (2) What order?

          7.      Our findings on the above points are as follows:-

          Point No.1:- Affirmative.

          Point No.2:- As per final order.

REASONS

8.      It is not in dispute that, the husband of the complainant deceased Ismail Baig was the owner of lorry bearing Reg.No.KA-34-8671, having valid heavy goods vehicle license, was discharging both owner-cum-driver duties in respect of the above said lorry.    He had taken insurance policy bearing No.10003-31-13-127983 which was lid for the period from 23.06.2012 to 22.06.2013 from OP.  Such being the case, on 08.11.2012, when he was driving the above said lorry, one JCB vehicle bearing Reg.No.KA-16-M-6123 came from opposite direction and dashed to his vehicle.  On account of the said accident, the said Ismail Baig died at the spot.  After his death in a Motor Vehicle Accident, complainant filed a MVC Petition bearing No.MVC No.140/2013 before the Hon’ble II Additional Civil Judge (Sr,Dn), Chitradurga against the Insurance Co., of JCB Vehicle, the same was allowed on 11.08.2014 by awarding suitable compensation.  It is further argued that, the husband of the complainant deceased Ismail Baig was owning a lorry bearing Reg. No.KA-34-M-8671 having all the relevant documents on the date of accident.  The entire premium towards insurance and also separate premium amount of Rs.100/- under the head owner-cum-driver covering the risk of owner up to Rs.2,00,000/- has been paid by the deceased husband of complainant.  After disposal of MVC No.140/2013 the complainant submitted all the relevant documents to the OP along with claim form seeking compensation amount of Rs.2,00,000/- as per the terms of the policy.  In spite of several requests made by the complainant, OP did not settle the claim of the complainant. 

9.      In support of her contention, the complainant has filed her affidavit evidence reiterating the contents of complaint and relied on the documents like Certificate cum policy schedule issued in favour of Ismail Baig for the period from 23.06.2012 to 22.06.2013 which shows the husband of the complainant has paid a sum of Rs. 100/- for PA for owner-cum-driver and on the date of accident,       the policy was in force, the same is marked as                           
Ex.A-1, office copy of the legal notice dated 14.06.2016 marked as  Ex.A-2, copy of the FIR marked as Ex.A-3, statement of M.R. Imran, spot mahazar, vehicle inspection report, motor vehicle accident report, wound certificate, inquest mahazar, copy of the DL, certificate cum policy scheeule, birth certificate of Arshiya Anjum, school fee paid receipts, photo of husband of complainant, B-register extract, ration card, birth certificate, Chargesheet, certificate cum policy schedule, extract of the DL, History sheet for drivers, extract of the DL marked as Ex.A-3(a) to 3(v). 

10.    On the other hand, it is argued by the OP that, the personal accident benefit is not available to the insured in case of third party accident claims.  The husband of the complainant died due to rash and negligent act of the driver of JCB in a road traffic accident which took place on 08.11.2012.  As per the documents produced by the complainant, the JCB bearing Reg.No.KA-16-M-6123 was insured with the Reliance General Insurance Co. Ltd., and the complainant has taken claim in MVC No.140/2013.  The accident was not taken place due to own negligence of the husband of the complainant, therefore, paying of Rs.2,00,000/- under the head personal accident benefit does not arise.  To claim personal accident benefit, the death should took place due to own negligence of the driver-cum-owner, not under any other circumstances, therefore, OP is not liable to pay any compensation.  The complainant has taken compensation from OP insurance company under all the available heads and once again the complaint filed this complaint under the head of Personal Accident Benefit which is not maintainable.  The claim of POA there should not be involvement of any other vehicle in the Road Traffic Accident, whereas in this case, the accident took place due to negligence on the part of driver of the JCB.  The insurance was a contract entered into between the complainant and the OP and the OP accepted premium and agreed to indemnify the insured provided that, there should not be breach of any terms and conditions of policy i.e., policy is subject to terms and conditions.  The complainant agreed the said terms and conditions and accepted the policy, therefore, the OP is not liable to pay any compensation.

11.    In support of its contention, the OP has filed affidavit evidence of one Sri.A.P. Abhinandan, Law Officer has examined as    DW-1 by filing the affidavit evidence and reiterated the contents of version and relied on the document like certificate of policy schedule marked as Ex.B-1.

12.   On hearing the rival contentions of both parties and on perusal of the documents including the affidavit and documentary evidence, it clearly made out that, the husband of complainant Ismail Baig was the owner of Lorry bearing Reg.No.KA-34-6871 had taken insurance policy from the OP.  On 08.11.2012, when the said Ismail Baig was driving the said lorry. At that time, one JCB bearing Reg.No.KA-16-M-6123 came from opposite side and dashed to the above said lorry.  Due to the said accident, the husband of the complainant died at the spot.  As per Ex.A-1 i.e., the certificate cum policy schedule, the husband of complainant deceased Ismail Baig was the owner of lorry bearing Reg.No.KA-34-6871 had taken policy bearing No.10003/31/13/127983 by paying the premium amount and also Rs.100/- for personal accident benefit i.e., GR36A-PA for owner/driver for the period from 23.06.2012 to 22.06.2013 for a total value of Rs.9,00,000/- and under the head Limit of Liability, it is clearly mentioned that, P.A cover under Section III for Owner – Driver (CSI) : Rs.2,00,000/-.  The accident took place on 08.11.2012, on that day, the policy was in force. After the accident, the complainant filed a claim petition before the OP but, the OP repudiated the claim of the complainant on the ground that, the accident was not taken place due to own negligence of the husband of the complainant/driver, therefore, paying of Rs.2,00,000/- under the head personal accident benefit does not arise.  To claim personal accident benefit, the death should took place on own negligence of the driver-cum-owner, not under any other circumstances.  To prove the same, the OP has not produced any documentary evidence.  Therefore, the contention taken by the OP is not admissible or acceptable.  The complainant has filed an application u/Sec.24(A) of the C.P. Act along with an affidavit seeking to condone the delay of 1 year 10 months in filing this complaint.  The complainant has stated in her affidavit for delay in filing this complaint is due to death of her husband, she was under great sorrow, grief in her routine life and also engaged in claim case filed before the Hon’ble MACT, Chitradurga.  Further, the complainant has approached OP so-many times for releasing the claim amount as per terms and conditions of the policy.  But, the OP has drag on the matter on one or the other way.  Finally, the complainant has issued the notice to the OP.  In support of this application, the complainant has relied on the decision reported in 2008(5) KCCR 3105 in the case of C.K. Prahalad and others Vs. State of Karnataka and others wherein it has been held as under:

LIMITATION ACT, 1963: Section 5 – Code of Civil Procedure, 1908 – Section 96 – The order of the High Court condoning enormous delay of more than 2000 days and remitting the case to Trial Court was not interfered with by the Supreme Court.

          Another decision reported in AIR 2009 (SC) 2577 in the case of State of Karnataka Vs. Moideen Kunhi (dead) by LRs and Ors wherein it has been held as under:

 

Limitation Act (36 of 1963), S. 5 – Condonation of delay – Expression “sufficient cause” – Must receive liberal construction to advance substantial justice – Order of Land Tribunal – Matter involving more than 4000 acres of land including 3500 acres of forest land – Special Leave Petition by State challenging order – Delay of more than 6500 days from original order and about 300 days from order in review petition – Question of law involved – Delay, held, was liable to be condoned subject to payment of exemplary costs of Rs. Ten lakhs – Duty of Court to protect public justice – Cannot be rendered ineffective by skillful management of delay in process of challenging impugned order which prima facie appeared not sustainable.

 

          The citations produced by the complainant are supporting to the case of the complainant, therefore, the delay in filing the complaint is liable to be condoned.  The citations produced by the OP is not supporting to the case on hand.   

  Therefore, we come to the conclusion that, the repudiation made by the OP in settling the claim of the complainant itself is a deficiency of service on its part.  Accordingly, this Point No.1 is held as affirmative to the complainant.          

            13.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The I.A filed u/Sec.24(A) of the C.P. Act is hereby allowed by condoning the delay in filing the complaint. 

The complaint filed by the complainant U/s 12 of CP Act 1986 is allowed.

It is ordered that, the OP is hereby directed to pay a sum of Rs.2,00,000/- to the complainant towards personal accident benefit along with interest at the rate of 12% p.a from the date of complaint till realization. 

It is further ordered that, the OP is hereby directed to pay Rs.10,000/- towards mental agony and Rs.5,000/- towards costs of this proceeding.  

It is further ordered that, the OP is hereby directed to comply the above order within 30 days from the date of this order.

 (This order is made with the consent of Member after the correction of the draft on 31/08/2017 and it is pronounced in the open Court after our signatures)         

 

 

                                     

 MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OP:

DW-1:  Sri.A.P. Abhinandan, Law Officer of OP by way of affidavit evidence. 

 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Certificate cum policy schedule
02	Ex-A-2:-	Office copy of the legal notice dated 14.06.2016
03	Ex-A-3(a) to 3(v):-	Copy of the FIR, statement of M.R. Imran, spot mahazar, vehicle inspection report, motor vehicle accident report, wound certificate, inquest mahazar, copy of the DL, certificate cum policy schedule, birth certificate of arshiya Anjum, school fee paid receipts, photo of husband of complainant, B-register extract, ration card, birth certificate, Chargesheet, certificate cum policy schedule, extract of the DL, History sheet for drivers, extract of the DL

 

Documents marked on behalf of OP:

01

Ex-B-1:-

Certificate cum Policy Schedule

 

 

 

 

MEMBER                                                            PRESIDENT

Rhr**