DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: BHADRAK.

Present: Sri Shiba Prasad Mohanty, President.

  Dated the 3^rd day of September 2022.

C.D. Case No.   71  of 2021.

               Sudarshan Majhi, aged about 60 years,

               S/o:- Late Hagura Majhi, Vill/Po:- Balibarei,

             Via:- Dhananjayapur, P.S:- Soso, Dist:- Keonjhar.

                                                                                             …………….. Complainant.

(Versus)

1.        The Chief Manager,

Oriental Insurance Company Ltd.,

Regional Office, Budha Nagar, Sahid Nagar,

2.        The General Manager,

       Oriental Insurance Company Ltd.,

       Branch at Bhadrak, At:- By-pass,

                  Po/Dist:- Bhadrak.                                                                                                     

                                                                                                ………………Opp. Parties.

For the Complainant           :    Adv. Binaya Kumar Swain & Associates.

For the Opp.Parties             :    Adv.  Amarendra Kumar  Panda.

Date of hearing                   :    30.07.2022. 

Date of order                       :    03.09.2022.         

SHRI SHIBA PRASAD MOHANTY, PRESIDENT:-

                   This dispute arises out of the complaint filed by the complainant alleging deficiency in service against the O.Ps.

               The complainant is a senior citizen who files a petition to dispose of the case on priority basis as he is unable to attend the court due to his health condition and financial position.

                   The back ground facts disclosed in the complaint are to the effect that the son of complainant namely Sangram Keshari Majhi is the bonafide Insurance Policy Holder of the Insurance Company, the O.Ps vide Policy No. 345701/31/2020/1732, which covers from 12.54 on 14.05.2019 to midnight of 13.05.2020 for own damage and from 12.54 on 14.05.2019 to midnight of 13.05.2024 for liability and compulsory PA from 12.54 on 14.05.2019 to 13.05.2024.

             On dt. 13.06.2019 at about 14.30 hours, Sangram Keshari Majhi was returning from his service place at Asansole with his KTM Motor cycle bearing Regd. No. OD-22P-5187 and while on the road on NH-60 another Motorcycle bearing Regd. No. OD-29-4690 came with a rash and negligent manner and dashed behind the motorcycle of Sangram Kehari Majhi and as a result of which Sangram Keshari Majhi was seriously injured and brought to Medinipur Medical College and Hospital for treatment by the local people, where he expired during treatment on 14.06.2019.  But, as the present complainant got the message late, so after obtaining all the information’s, he lodged F.I.R. before P.S. Kharagpur Local on 08.07.2019.  The Police registered its P.S. Case No. 478/2019 against the offending vehicle as stated above.  Both the motorcycles were properly insured.  The body insurance of Sangram Keshari Majhi, the son of complainant was properly done at the time of purchase of the said KTM Motorcycle as described above.  The post mortem was conducted at Medinipur Medical College and Hospital.

             The Motorcycle of the deceased was KTM Motorcycle having    Regd. No. OD-22P-5187, Chasis No. MD2JYCYA6KC020387 & Engine No. 9906X08509.  It was properly insured through the O.P. Company.  The vehicle was hypothecated to BAJAJ FINANCE LTLD, BHADRAK, ODISHA   vide Policy No. of the vehicle is 345701/31/1732 and the same is valid from 14.05.2019 to midnight of 13.05.2020.

            After the death of Sangram Keshari Majhi, the complainant several times knocked the door of the Insurance Company and claimed the insured amount, but the officials of the Insurance Company played hide and seek game with him.  Till date, the complainant, the father of the deceased has not availed the insurance claim amount after his several written letters to the Insurance Company.

             In the present COVID-19 PANDEMIC situation, the notice faced a lot of financial problems for his daily day maintenance.  He has lost his earning son who was maintaining the family members of the complainant.  After his demise, the family sustained irreparable loss and as the complainant and his family has lost their young and earning son, they are deprived of getting his love and affection and as they would have depended upon, but they lost all their consortium due to demise of Sangram.

            The O.Ps have rendered negligence in providing due service to the complainant and settle the dispute by paying the matured insurance amount as per norm and terms and conditions of the Policy to the complainant in respect to death benefit under the Insurance Policy, despite the repeated request and personal approach made by the complainant to the O.Ps.  As such the O.Ps are liable to pay compensation and litigation expenses to the complainant for their default.

             O.Ps resisted the complaint and contested the claim that this dispute is not maintainable. That, one Sangram Keshari Majhi, At/Po:- Balibarei, Via-Hadagarh, Dist- Keonjhar-758023 had taken a Motorized Two Wheelers (5 years) Bundled Policy bearing Regd. No. 345701/31/2020/1732 in connection to a new KTM – KTM RC200 ABS bike  having Engine No. 990608509, Chasis No. MD2JYCYA6KC020387, 200 CC type of body – solo, type of fuel-Petrol manufactured in the year of 2019 from the O.P. No. 2 with terms and conditions.  There are two sections in the said policy.  One is section-A and another is section-B.  Under section-A of said policy the said Sangram Keshari Majhi had taken coverage of the Own Damage of the aforesaid bike for the period from 12.40 hrs on 14.05.2019 to midnight of 13.05.2020 with terms and conditions and under section-B of the said policy he had taken basic  coverage of 3^rd Party liability as per Motor Vehicle Act, 1988 and Personal Accident Coverage of Owner-Driver under GR No. 36A of Indian Motor Tariff for Capital Sum Insured of Rs. 15,00,000/- for the period from 12.54 hrs on 14.05.2019 to midnight of 13.05.2024 with terms and conditions of the policy.

            In consideration of payment of additional premium for Personal Accident Cover to the registered Owner-Driver under IMT 15 of Indian Motor Tariff insurance company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by the insured person in direct connection with the vehicle insured or whilst mounting to dismounting from or travelling in vehicle insured and caused by violent accidental and visible means which independently of any other cause shall within six calendar months of the occurrence of such injury result in.

Provided always that, I compensation shall be payable under only one of the items (i) to (iv) above in respect of any such person arising out of any one occurrence and total liability of the insurer shall not in the aggregate exceed the sum of Rs. 15,00,000/- during any one period of insurance in respect of any such person.  This cover is subject to the owner-driver is registered owner of the vehicle and the owner-drover is the insured named in this policy and the owner-driver holds an effective driving license in accordance with the provisions of Rule-3 of the Central Motor Vehicle Rules, 1989, at the time of accident. 2 No of compensation shall be payable in respect of death or directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self-injury suicide or attempted suicide physical defect or     infirmity or (b) an accident happening whilst such person or his/her legal representative(s) whose receipt shall be la full discharge in respect of the injury of such person.  Subject otherwise to the terms exceptions conditions and limitations of this policy and condition No.1 & 2 of the Personal Accident insurance policy reads as hereunder :

CONDITION No. 1.

            Upon the happening of any event which may give rise to a claim under this policy, written notice with all particulars must be given to the company immediately.  In case of death, written notice also for the death must, unless reasonable cause is shown be given before interment cremation, and in any case within one calendar month after the death and in the event of loss of sight or amputation of limbs, written notice thereof must also be given within one calendar month after such loss of sight of amputation.

CONDITION No. 2.   

            Proof satisfactory to the company shall be furnished of all matters upon which a claim is base.  Any medical or other agent of the company shall be allowed to examine the insured person(s) on the occasion, of any alleged injury or disablement when and so often as the same may reasonably be required on behalf of the company and in the event of death, to make a postmortem examination of the body of the insured persons.  Such evidence as the company may from time to time require shall be furnished and post mortem examination report, if necessary, be furnished within the space of fourteen days after demand in writing and in the event of a claim in respect of loss of sight, the insured person(s) shall undergo at the insured’s expense such operation or treatment as the company may reasonably deem desirable.  No sum payable under this policy shall carry interest.

            Thus Condition No.1 of the Personal Accident Policy requires upon happening of any event which may give rise to any claim under the policy written notice with full particulars must be given immediately and in case of death written notice regarding the death must unless reasonable cause is shown, be given before the interment/cremation and any case within one Calendar Month after death. Obviously this part of the condition is required to be complied by the insured and in case of death of the insured, obviously by the person legally entitled to raise the claim on the basis of policy.  Condition No.2 prescribes that proof on all matters upon which claim is based, satisfactorily to the company shall have to be furnished to the company.  There cannot be any scope for doubt that this part of the obligation shall have to be complied necessarily by the insured and in his absence in case of his/her death, by the person advancing the claim on the basis of policy.   But the complainant has not given written notice about the death of the deceased Sangram Keshari Majhi due to road traffic accident on 13.06.2019 at about 14.30 hrs with particulars to the insurer i.e. O.P.No.2, then what to speak of lodging claim thereof.  Hence there is no intimation and claim put forth by the complainant for the death of the deceased Sangram Keshari Majhi on 14.06.2019 with the O.P.No.2 and when there is no claim for the death of the deceased Sangram Keshari Majhi caused due to road traffic accident on 13.06.2019 at 14.30 hrs. is lodged with the O.P.No.2 by the complainant question of deficiency in service to the complainant in settlement of his claim and delay in settlement of his claim does not arise at all land as such the complaint of the complainant does not comply the requirements of Section 2(6) of the C.P. Act consequently the complaint of the complainant is not maintainable.  Hence the complaint of the complainant is liable to be dismissed.

            Having heard the Ld. Counsels for the parties and upon careful scrutiny of materials available in the case record the following issues cropped in for consideration:-

1. Whether the complainant is a consumer under (7) of the COPRA, 2019 ?
2. Whether the son of the complainant who died in a road traffic accident while driving his own insured vehicle?
3. Whether the vehicle involved in the accident had a valid insurance policy to cover personal accident coverage?
4. Whether the complainant has duly lodged a claim for death benefits under the policy ?
5. Whether the O.Ps have committed negligence & deficiency in rendering service to the consumer complainant?
6. To what relief the complainant is entitled to ?

            So far as issue No.1 is concerned, the Insurance policy of the vehicle involved in the road traffic accident stands in name of the deceased.  After death of the policy holder, the present complainant who is the father of the deceased gets clothed with the rights status and personality of the deceased.  The father of the deceased being the legal representative of him has    already admittedly received the own damage claim (damage caused to the motorcycle) from the O.Ps.  So, the contention of the O.Ps that the present complainant is not the policy holder of the case policy, he cannot file this complaint hold no ground.  Further the name of the complainant finds in the legal certificate filed by the O.Ps as Annexure-D. Therefore either of these two legal heirs i.e. father & mother can raise the complaint.  So issue No.1 is answered in favour of the complainant.

          So far as Issue No.2 & 3 is concerned, it is the admitted case of both the parties that the son of the complainant died in a road traffic accident on 13.06.2019 while driving his own motor cycle and the insurance policy was valid and effective to cover personal accident.  So, issue No. 2 & 3 is also answered in favour of the complainant.

          Now at Issue No. 4 & 5 the O.Ps avers that the complainant has not given written notice about the death of the deceased Sangram Keshari Majhi and has not lodged any claim to avail the compensation for accidental death of registered owner. It revels from the record that the complainant has filed his evidence in shape of an affidavit where in it has been stated that he has already lodged claim on 08.08.2022 with all connecting documents.  From the advocate notice dt. 03.09.2021, at Para-3 it is evident that the present complainant has claimed for the insured amount several times before the O.P. Insurance company after death of his son.  There is no evidence in the case record to say that the O.P. insurance company has replied to the above said advocate notice.  As enumerated in 2 (9) Consumer Rights in the COPRA, 2019 the complainant has the right to be made aware about the provisions & procedures of the policy to receive the compensation or death benefits.  These O.Ps are duty bound to make the consumer aware about the terms & conditions of the policy land assure the consumer that his interests will be duly taken care of.  But in this instant, the commission finds the O.Ps negligent in making the consumer aware about the provisions of the policy land procedures to be adopted for application to receive the death benefits against the policy.  So, this Commission finds the O.Ps to be negligent & deficient in rendering services to the consumer complaint.

          The last issue i.e. Issue No. 6 – to what extent the complainant is entitled to in terms of compensation against the policy. As per the terms of the P.A Cover Under Section III for registered owner cum driver is Rs.15, 00,000/-. Further the O.Ps have also admitted the above contention in their written version. The complainant has already lodged claim on 08.08.2022 with all connecting documents. As these O.Ps have processed the “own damage claim” against the vehicle, So they were completely aware of the facts and documents of the case. When there is provision in the policy for death benefit of the owner driver, it is expected that the O.P-Insurance company should have adequately educated the complainant to lodge the claim for death benefit of the deceased against the policy in due form & procedure.      The O.Ps are insurance companies of repute and such lackadaisical attitude is very much unbecoming and unethical. So the commission dims it proper to award substantial compensation for the negligence and deficiency of service on the part of the O.Ps.  In this context this commission observed that the relief sought for by the complainant to direct O.Ps to make payment of the insured policy amount as per the terms and conditions of the policy is justified.

                                  Accordingly Ordered.                                                                                                          

                                                                        O R D E R

                        The complaint be and the same is allowed on contest against O.Ps. Accordingly the O.Ps are directed to make payment of the insured amount of   Rs15,00,000/- (Rupees fifteen lakhs ) only along with Rs.1,00,000/- (Rupees one lakh ) only towards  compensation  and Rs.20,000/-(Rupees twenty thousand  towards cost of the proceeding  within thirty days of receipt of the order , failing which the O.Ps are to pay interest @9% P.A  on the after said amount till the date of realization.

                        This order is pronounced in the open Commission on this day, the 3^rd day   of   September 2022 under my hand and seal of the Commission.