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

C.C. No.82/2021.

                           Date of filing: 26.11.2021.

                                Date of disposal: 31.07.2023.

P R E S E N Ts:-

 (1) Shri. MabuSahebH.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.       Suresh S/o Shiromani,

                                                       Age:35 years, Occ:Labour,

                                                       R/oVillage Kosam, Tq:Bhalki,
                                                       Dist:Bidar.                                                 

                                                       (By Sri.Khandesh N.Dange
                                                     and Sri.Rajkumar K., Adv.)                         

V/s

OPPONENT/S                       1.   The Branch Manager,  

                                                       IFFCO-TOKIO, General Insurance

                                                     Company Ltd., Havappa Complex,No.200,
                                                     201,& 202, Udgir Road, shivnagar South
                                                     Bidar,  Karnataka.

                                                          (By Sri.S.Wilson, Adv.)

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

By. Sri.Thriyambakeshwar,  Member.

The complainant approached this Commission by filing complaint U/sec 35 of the Consumer Protection Act, 2019, against the opponent alleging deficiency in service in not settling the P.A. claim by OP for the disability suffered by him in an accident.  Hence, passed the following judgement.

Brief facts of the complaint.     

The brief facts of the complaint are summarized as follows: -

1.         That the complainant owned a two wheeler bearing No. KA 39 Q 9756.   The said Motor Cycle was insured with OP in policy bearing No. 1-Y15G5DFP400 Policy No.M4554375 which was valid from 27.11.2018 to 26.11.2019 by paying premium of Rs.2521.39/- under the head of compulsory P.A.Cover (Owner-driver).  It was on 05.05.2019 at about 5.30 hours, the complainant as a pillion rider along with his friend by name Robin Malage when they reached Dev-Dev Garden on Zahirabad-Bidar Road and while so going because of his  friend Robin Singh’s rash and negligent driving he suddenly took turn and thereby it was slipped and due to which both  fell down along with Motor Cycle and resultantly compliant sustained abrasion injuries to left parietal region, nose, right fore head region, fracture injury & hemorrhagic contusion below eye lids, fracture over right temporal lobe and  right parietal temporal bone.  They were shifted to Government Hospital Bidar and thereafter he was shifted to Gurunanak Hospital Bidar on 08.05.2019 for higher treatment and he had been their till 12.05.2019 and spent about 1.5 lakhs and till the date is under fallow up treatment.  The Police Market P.S. Bidar registered case in Cr.No.30/2019, against complainant friend Robin Singh for the offenses u/s 279,337 and 338 of IPC.

2.           The complainant approached OP by requesting for payment of assured amount of Rs.15,00,000/- which was not entertained by OP.  Therefore, the complainant got issued legal notice dt:14.08.2021 to OP and OP did not reply and pay any compensation amount to the complainant. Hence, complainant filed this complaint against to OP by alleging deficiency in service and negligence in not entertaining his claim.

Written Version of OP.

3.         That, subsequent to service of notices on OP by this commission and filed power and filed his W.V. by categorically denying almost all facts of the compliant by admitting insurance of said Motor Cycle including payment of premium Rs.750/- against to the stand of complainant as Rs.2521.39/- under P.A. head having validity from 27.11.2018 to 26.11.2019.

4.         It is further contended by OP that, the complainant has sustained the injuries in some incident not involving any motor vehicle, but now to claim false compensation, he is wrongly and falsely involving the motorcycle owned by him and concocted for the sole purpose of claiming compensation.  The rest of the contentions in respect of the injuries might be true, but the same is not caused in any motor vehicle accident or due to use of motor cycle bearing Registration No.
KA 39 Q 9756.  The issuance of legal notice dt:14.08.2021, may be true but, the same is not addressed to be proper office of the OP even that, legal notice is also issued after completion of 2 years limitation from the date of accident and complaint ought to have been filed before 07.05.2021 but, which was issued on 14.08.2021, hence no cause of action and the said legal notice is issued to show pathetic approach to escape the limitation and hence the complaint is barred by limitation.  Even by considering legal notice dated 05.05.2019 the cause of action of 2 years limitation for filing this complaint expires on 04.05.2021 and whereas this complaint was filed on 26.11.2021 which is hopelessly time barred hence, complaint liability to be dismissed. 

5.         The complainant at the stage of argument filed application u/s 151 on28.07.2023, I.A. No.3 for reopen the complainant evidence stage and another application I.A. No.4 u/s 69 of C.P.Act 2019 & 24(a) of C.P.Act 1986 for the condoning the delay of 259 days in filing the above complaint due to then prevailing Covid -19 pandemic situation and because of said reason only, the said complaint was filed, however by over sight without delay condonation application along with complaint.  The said I.A. NO.III &IV were resisted strongly by OP by filing objections contending that, no such applications to be entertained at this stage to fulfill the lacuna and complainant did not act diligently and hence prayed for dismissal of both I.A.s and consequently complaint also deserves to be dismissed.

Evidence of complainant.

6.         The complainant lead, his evidence as P.W.1 and Dr.Rajeshkar Sedamkar S/o Channappa Orthopedic Surgeon Shree. Hospital Bidar, as P.W.2 and got marked Ex.P.1 to Ex.P.27 which are as follows,

1. Ex.P.1-True copy of FIR  in Cr.No.30/2019 of Market  Police P.S.
2. Ex.P.2-True copy of complaint dt:05.05.2019.
3. Ex.P.3-True copy of Crime details Form.
4.  Ex.P.4-True copy of M.V.A. Report in Cr.No.30/2019 of Market Police P.S.Bidar.
5. Ex.P.5-True copy of charge sheet in Cr.No.30/2019 of Market Police Bidar.
6. Ex.P.6-Copy of wound certificate of complainant.
7.  Ex.P.7-Copy of discharge summary dt:12.05.2019.
8. Ex.P.8-Copy of insurance policy of vehicle.
9. Ex.P.9- Copy of Driving licence.
10. Ex.P.10-Copy of R.C.Book of vehicle.
11. Ex.P.11&11(a)-Legal notice and Postal receipt.
12. Ex.P.12-Copy of complainant supplementary statement of before Market P.S. dt:06.05.2019.
13. Ex.P.13-Discharge summery issued by Shree Hospital Bidar dt:22.06.2019.
14. Ex.P.14-Disiability Certificate dt:22.09.2022.
15. Ex.P.15-Lab and Radiology report dt:07.05.2019.
16. Ex.P.16-Medicine bills No.42.
17. Ex.P.17-Medicine Prescriptions (32 Nos).
18. Ex.P.18 to 27-X-ray and CT Scan reports.

Evidence of Opponent.

7.         The OP submitted no evidence on his behalf of which is evident from order sheet dated 16.06.2023 and hence no documents marked on his behalf.  However, he raised interrogatories to P.W.2 Dr.Rajeshkar Sedamkar S/o Channappa Orthopedic Surgeon Shree. Hospital Bidar, which answered by complainant on 01.04.2023 and OP submitted the hearing on  interrogatories and answers to be considered along with main argument.  Accordingly, heard the same along with main argument. 

8.         This Commission heard complainant and OP, perused the evidence and documents of complainant on record, hence the points/issues arose for our considerations are as follows.

Points/Issues.

1. Whether the complainant proves that, he is the consumer to Op and further any deficiency in service on the part of OP?

2. Whether the OP proves that, the complaint filed by complainant  is barred by limitation?

3. Whether the complainant is entitled for any relief/order? If so, What orders? 

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

1. In the negative.
2. In the negative.
3. As per the final order.

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

11.       In order to prove the case of the complaint, the complainant lead his evidence as P.W.1 and Dr.Rajeshkar Sedamkar S/o Channappa Orthopedic Surgeon Shree. Hospital Bidar  as P.W.2, on his behalf to prove disability certificate issued by him at Ex.P.14, to the extent of 50% permanent partial disability to affected limb, and 35% to whole body of complainant and he got marked in all documents Ex.P.1 to Ex.P.27 on his behalf.  The OP did not lead evidence and no documents marked. 

12.       On Perusal of the pleadings and evidence of complainant, it is corroborated with other documentary evidence on record in support of his claim. It is noticed that, Ex.P.10 is the registration certificate extract showing ownership of complainant over Motor Cycle No.KA-39 Q9756, which is the vehicle in question met with accident corroborated with the same registration number in ExP.1 to Ex.P.5 i.e., Market  police Station Bidar, records showing the involvement of above said vehicle in accident of complainant.  The same is also finding in place in Ex.p.9&9(a) & Ex.P.10 which are the effective and valid insurance policy and D.L. of complainant respectively as on date of accident.  Though, the OP strongly contended that, the accident is not happened as narrated, but the same is proved by complainant as per Ex.P.1 to Ex.P.5, However in order to disprove the same OP did not place any kind of evidence either oral or documentary evidence to discard the said accident.  Even, he did not lead his evidence to prove the contents of his defense as put forth before this commission.  Therefore, it is proved by complainant that, his Motor Cycle met with accident on the shown place date and time due to his friend Robin Singh negligence, rash driving of the Motor Cycle.  Hence, the complainant is the consumer to OP who in turn is insurance service provider to complainant under the above policy in question.

13.       The pleading of the complainant at Para No.1 regarding insurance of the Motor Cycle with OP in policy bearing No. 1-Y15G5DFP400 Policy No.M4554375, which was valid from 27.11.2018 to 26.11.2019 by paying premium of Rs.750/- under the head of compulsory P.A. Cover (Owner-driver) is corroborated with insurance certificate at Ex.P.8 issued by OP showing P.A. premium of Rs.750/- received by OP against to the contention of complainant for Rs.2521.39/- as premium under the head of P.A. for owner driver for capital sum insured of (CSI) Rs.15,00,000/-. 

14.           And now coming to question of whether claim of the complainant had been submitted to OP is proved by complainant or not, in this regard OP drawn our attention to the pleadings of complainant Para No.6 of the complaint along with Ex.P.11 legal notice Para No.7.  On perusal of pleading of complainant in complaint and his legal notice Para No.7 absolutely, it doesn’t disclose for having placed any cogent evidence for such submission of documents along with claim form on which date, he said to have submitted claim before OP for processing the claim.  The complaint Para No.6 and also legal notice Para No.7 doesn’t disclose the date on which he submitted claim form before issuance of Ex.P.11 and 11(a) legal notice as on dated 21.08.2021 to OP, but he mentioned in the complaint about legal notice issuance date as 14.08.2021.  The postal receipt at Ex.P.11(a), for having posted said legal notice dt:21.08.2021,   discloses the same date as on 21.08.2021.  Hence, failure of complainant before this commission to prove that, he submitted “Claim Form” before OP without placing the said document and without disclosing the date on which it is posted to OP, is not clear on perusal of his entire pleadings and documents, which does prove the contention of OP that, the complainant not submitted any “Claim Form” along with requisite documents within period of 2 Calendar  years from the date of accident from 05.05.2019, for processing claim before OP and it is noticed by this commission that, earlier to issuance of legal notice Ex.P.11 dated 21.08.2021, he did not intimate anything to OP about accident and by claiming his claim by submitting requisite documents and hence, thereby no decision was taken by OP on the claim of complainant and hence there is absolutely the complaint is filed beyond the period of 2 years limitation as provided under C.P.Act.  However, the complainant at the stage of argument filed application u/s 151 on 28.07.2023, I.A. No.3 for reopening the complainant evidence stage and another application I.A. No.4 u/s 69 of C.P.Act 2019 & 24(a) of C.P.Act 1986 for condoning the delay of 259 days in filing the above complaint due to then prevailing Covid -19 pandemic situation and however by over sight only, the said complaint was filed, without delay condonation application along with complaint.  The said I.A. No.III &IV were resisted strongly by OP by filing objections contending that, no such applications to be entertained at this stage to fulfill the lacuna and complainant did not act diligently and hence prayed for dismissal of both I.A.s.  After hearing both parties this commission is of the opinion that, the limitation aspect being a lapse of technical procedure which cannot be upheld to deny the natural justice on merits.  Therefore, this commission relied on the judgment of Hon’ble Supreme Court reported in 2017(2)CPR(1)(Supreme Court) in old C.P.Act 1986.

National Insurance Co.Ltd. Vs Hindusthan Safety Glass works Ltd. (Head note A)- “Consumer Protection  Act,1986 Section 24 A- consumer complaint limitation In a dispute concerning a consumer it is necessary for courts to take a pragmatic view of rights of consumer principally since its is consumer who is placed at a disadvantage vis-a-vis supplier of services or goods- It is to overcome this disadvantage that a beneficent legislation in the form of Consumer Protection Act 1986 was enacted by Parliament-Provision of limitation in the Act cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental; in causing a delay in settlement of consumer’s claim”.

15.       Hence this commission is of opinion that, the complainant has made out a prima facie case for the reasons stated in the supporting affidavit to application produced on record, thereby it is a fit case to allow the application for condonation of delay as stated above, accordingly I.A. No.III & IV are allowed.   

16.       Though the contention of OP as per his W.V. cannot be accepted, as he did not lead his evidence to consider the same objections, however the complainant is owed a duty and obligation on his part to prove the cause of action and his case for filing the complaint before this commission, which complainant utterly failed to prove the same by any cogent evidence.  In view of non proving his submission of placing “Claim Form” before OP and without disclosing the date on which he submitted claim Form before OP in the complaint and legal notice averments, this commission is of view that, the complaint is premature one as complainant not provided an opportunity to OP to decide the claim on verification of complainant documents to take appropriate decision on claim.

17.       Therefore, for the reasons discussed herein above, the Citations relied upon by complainant in his argument are not worth for consideration and with due respect to the decision of higher commissions, the same are not referred as the facts of those citations and facts in instant case are different.  Accordingly, this commission is of the considered opinion that, the complaint filed by complainant is premature one, without there being any cause of action, and hence deserves to be dismissed with no order as to cost. 

18.       Therefore, in the light of the above discussion, this commission is of the opinion that, the complainant not proved his case for entitlement of getting P.A claim as stated above from OP as the complaint filed by complainant is premature one.  Hence, we answered point No.1and 3 in negative against to complainant and hence, point No.2 against to OP in negative and accordingly we proceed to pass the following.

::ORDER::

The complaint filed by the complainant is hereby dismissed as premature complaint with no order as to cost.

However, the complaint is directed to submit claim Form alongwith requisite documents to OP within 30 days from the date of this order and OP in turn shall take decision based on such complainant’s claim in accordance with IRDA’s “guidelines on standard personal accident insurance product circular No. IRDA/HLT/GDL/MISC/036/02/2021 dt:25.02.2021” in respect of P.A. claim, within 15 days from the date of submission and thereafter complainant is at liberty to file or not to file complaint if he advised to do so.  

            Intimate the parties accordingly.

(Typed to our dictation then corrected, signed by us and then pronounced in the open Commission on this 31^st day of July-2023).

Documents produced by the complainant.

1. Ex.P.1-True copy of FIR  in Cr.No.30/2019 of Market  Police P.S.
2. Ex.P.2-True copy of complaint dt:05.05.2019.
3. Ex.P.3-True copy of Crime details Form.
4.  Ex.P.4-True copy of M.V.A. Report in Cr.No.30/2019 of Market Police P.S.Bidar.
5. Ex.P.5-True copy of charge sheet in Cr.No.30/2019 of Market Police Bidar.
6. Ex.P.6-Copy of wound certificate of complainant.
7.  Ex.P.7-Copy of discharge summary dt:12.05.2019.
8. Ex.P.8-Copy of insurance policy of vehicle.
9. Ex.P.9- Copy of Driving licence.
10. Ex.P.10-Copy of R.C.Book of vehicle.
11. Ex.P.11&11(a)-Legal notice and Postal receipt.
12. Ex.P.12-Copy of complainant supplementary statement of before Market P.S. dt:06.05.2019.
13. Ex.P.13-Discharge summery issued by Shree Hospital Bidar dt:22.06.2019.
14. Ex.P.14-Disiability Certificate dt:22.09.2022.
15. Ex.P.15-Lab and Radiology report dt:07.05.2019.
16. Ex.P.16-Medicine bills No.42.
17. Ex.P.17-Medicine Prescriptions (32 Nos).
18. Ex.P.18 to 27-X-ray and CT Scan reports.

Document produced by the Opponent.

            -Nil-

Witness examined.

Complainant.

P.W.1- Suresh S/o Shiromani,      (complainant).

P.W.2- Dr.Rajeshkar Sedamkar S/o Channappa Orthopedic Surgeon Shree. Hospital Bidar.

Opponent.

-Nil-