BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad,B.A.,LL.B. President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Friday the 18th day of July, 2008
C.C.No. 155/07
Between:
M. Narayana, S/o. M. Krishna Murthy,
R/o.H.No. 4-89, Allur Road, Nandikotkur. … Complainant
Versus
- The Divisional Manager, New India Assurance Company Limited,
H.D.C.T.Compex, R.S.Road, Kurnool.
- The General Secretary, Kurnool District Motor Workers Union (CITU),
Behind Durga Lodge, N.H.7, Kurnool. … Opposite parties
This complaint is coming on this day for orders in the presence of Sri.M.Sivaji Rao, Advocate, for the complainant, and Sri.P.Ramanjaneyulu, Advocate, for the opposite party No.1 and opposite party No.2 is called absent set exparte and upon perusing the material papers on record, the Forum made the following:-
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.155/07
1. This case of the complainant is filed U/s 11 and 12 of C.P.Act, seeking direction on the opposite parties to pay to the complainant Rs.1 lakh - assured amount – with 12% interest p.a, Rs.20,000/- as compensation for suffered mental agony and hardship and cost of the case alleging deficiency of the opposite party in not settling in spite of several approaches in person and in writing not settling, the claim of the complainant arising out of the accident occurred to him on 6-3-2003 resulting in an amputation of right leg up to knee .
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite party No.1 – insurance company – while appeared and contested the case by filling written version denying the liability to the complainant’s claim alleging the claim as belated and as per the conditions of the policy in case of disability on account of accidental injuries , is proportion to the percentage of disability and not to assured amount , the opposite party No.2 the holder of Janata Personal Accident Group Insurance master policy No.611500 /47/01/00147 to which the complainant is a beneficiary , remained exparte by his absence to the case proceedings.
3. In substantiation of the contentions while the complainant’s side has taken reliance on documentary record in Ex.A1 to A 10 and its sworn affidavit in reiteration of its case, the opposite party side has taken reliance on documentary record in Ex.B1 and sworn affidavit of opposite party No.2 in support of its defence.
4. Hence, the point for consideration is whether the complainant has made out the liability of the opposite party No.1 to the claim made in complaint.
5. The Ex.A1 is certified copy of charge sheet , the Ex.A2 is certified copy of FIR in Cr.No.30/2003 of P.S. Jadcherla while is envisaging an occurrence of accident to Lorry No.UP-70/H-9558 on 6-3-2003 at about 9-00 A.m in Macharam limits at culvert No.78/2 on account of collision with another lorry bearing No. AP-21-T-2039 and injuries to Ashewakahmed and Munna – the driver and cleaner of lorry No. UP-70/H-9558 the complainant herein N. Narayana in his complaint claims himself as injured in said accident. In the absence of any police investigating material in support of the complaint allegations that he was injured in alleged accident alleged vehicular accident on 6-3-2003 , the Ex.A1 and A2 remains of any help to the case of the complainant to believe that the complainant sustained injuries in accident mentioned in Ex.A1 and A2
6. In the absence of any cogent connecting record to the effect that the injuries complained by the complainant were injuries occurred in the alleged incident , the Ex.A3 – discharge card which envisages discharge of a patient on some treatment and the Ex.A9 the certificate of disability which envisages the disability suffered by the complainant at his injuries especially which were not taken any mention in them as arisen out of accident alleged on 6-3-2003 , they remain with any cogent relevancy for appreciation as the claim under the policy shall arise only on proof of accident to the complainant and it resulting in such injuries and alleged disability. Neither the Ex.A3 – the discharge certificate nor the Ex.A9 disability certificate indicates that the injuries for which treatment given or resulted in amputation leading to disability were injuries sustained by the complainant in an accident nonetheless as injuries sustained in the accident alleged in Ex.A1 and A2. Therefore from the Ex.A3 and A9 no accidental injuries to the complainant being made out , they remain of any much use to the complainant in establishing the amputation as result of any accidental injuries.
7. The Ex.A4 office copy of letter dated 10-3-2006 , Ex.A5 letter dated 8-5-2006 addressed to the opposite party No.1, even though alleges that the complainant sustained injuries in accident to lorry No.AP 21 T 2039 which he was driving at the time of said accident on 6-3-2003, it is not remaining so worthy of consideration of the complainant’s claim as Ex.A1 and A2 merely shows the complainant as accused of offence of rash and negligent driving of the vehicle bearing No.AP 21 T 2039 and not as injured in said accident .
8. The complaint alleges that after the accident , the opposite party No.2 – master policy holder and insured , has informed of the said accident to opposite party No.1. In spite of its denial by the opposite party No.1 requiring its strict proof by the complainant , the complainant did not made any endeavor to prove the same. Hence the said contention is remaining as mere plea for plea say without any substance therein for want of its proof by any cogent material.
9. As per the contents of para No.3 of the complaint the first approach of the complainant to opposite party No.1 after to his discharge was on 4-7-2003 and several times there after. In spite of its denial by the opposite party requiring its strict proof the complaint did not made any endeavour to prove it by any cogent means .
10 Even though the Ex.A4 letter dated 10-3-2006 , Ex.A5 letter dated 8-5-2006, Ex.A7 letter dated 26-6-2006 and Ex.A8 letter dated 28-9-2006 addressed to opposite party No.1 takes a mention of intimation of accident by the complainant and is union people to the insurance company, in the absence of any endeavour on the part of the complainant to prove the fact of said intimation of accident to opposite party No.1 in spite of requiring its strict proof by the opposite party on its denial , the said appears to be an after thought of the complainant for the purpose of gaining limitation to his cause of action which may not be available otherwise .
11. As per No.1 of the terms and conditions of the policy in Ex.B1 the event giving rise to the claim under the policy the insured shall forth with give a notice thereof to the company and written notice within one calendar month of the event unless a reasonable cause is shown. From the above it remains clear that the intimation of the event giving raise to the claim to be given to the insurance company forth with and a written notice within one calendar month of the event unless a reasonable cause is shown, even if he was hospitalized till 7th month the complainant ought to have give the required written intimation of the event to the insurance company no such proof is placed by the complaint. In the absence of proof of so called alleged earlier intimation by opposite party No.2 to opposite party No.1 and alleged subsequent several approaches of the complainant , and in the absence of any written intimation of event on discharge of complaint from the hospital , the first intimation of accident to the opposite party No.1 remains to the date of Ex.A4 which is three years after to said accident dated 6-3-2003 . As such said a written intimation Ex.A4 and subsequent to there of in Ex 5, 7 & 8 remains in violation of the mandatory condition No.1 of the Ex.B1 policy as to intimation of event immediately and in writing within a month of the said event giving raise to the claim .
12. Hence there being any immediate intimation of event and written intimation within a month as contemplated and the intimation in Exs.A4, A5, 7, & 8 as beyond the period of 3 years , there appears any valid claim of the complainant before the opposite party No.1 for settlement. Therefore there appears every justification in the conduct of the opposite party No.1 in not settling the claim of the complainant and so there appears any deficiency on the part of the opposite party making it liable to the complainant’s claim merely because the complainant was amputated below to his right knee as per Ex.A9 and suffering a 50% disability on account of said amputation .
13. Consequently, there being any merit and force in the case of the complainant it is dismissed with costs.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 18th day of July, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Certificate copy of charge sheet.
Ex.A2. Certified copy of FIR.
Ex.A3. Discharge card.
Ex.A4. Office copy of letter, dated 10-3-2006 of complainant
to opposite party along with courier acknowledgement.
Ex.A5. Office copy of letter, dated 8-5-2006 of complainant to
Opposite party along with courier receipt.
Ex.A6. Letter, dated 9-6-2006 of opposite party to the complainant.
Ex.A7. Xerox copy of letter, dated 26-6-2006 of complainant to
Opposite party along with postal receipt.
Ex.A8. Xerox copy of letter, dated 28-9-2006 of complainant
to opposite party.
Ex.A9. Certificate as to disability.
Ex.A10. Identity card of the complainant issued by opposite party No.2.
List of exhibits marked for the opposite parties:
Ex.B1. Master policy in the name of opposite party No.2
along with terms and conditions (No.in 4 papers)
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on :
Copy was posted on :
