Karnataka

Belgaum

CC/791/2013

Kempayya M Mathad - Complainant(s)

Versus

The Divisional Manager of New India Assurance Co-Ltd - Opp.Party(s)

C.I.Kapali

19 Jan 2015

ORDER

O R D E R

 

By: Shri. B.H.Shreeharsha : President.

 

1.      The complainant has filed this complaint claiming for a direction to the respondents to pay Rs.2 lakhs to the complainant towards compensation and to grant such other reliefs.

 

Brief facts of the case are as under:

2.      The case of the complainant is that, complainant is the owner of motorcycle bearing registration No. KA 27 ED 6933. The said motorcycle was insured with the respondent under policy 67110031130100001631 covering the risk for the period 29.08.2013 to 28.08.2014. On 04.09.2013 while complainant was proceeding from Kabbur village to his farm in moderate speed and when he was proceeding near Kankikodi government school at about 6.30 pm all of a sudden a stray dog came across and when the complainant made attempt to avoid the accident, the motorcycle capasized, thereby complainant fell down & sustained fracture over his right leg and injuries all over the body. Immediately after the accident the complainant was shifted to Sadanand Omkar Orthopedic and General Nursing home Chikodi, wherein he took treatment as an inpatient from 04.09.2013 to 11.09.2013 & spent about more than Rs.60,000/- towards the medical expenses including operation charges. Even now also the complainant is on follow up treatment. The complainant has paid the premium covering the risk. Hence, respondent is liable to settle the claim but not settled the claim. Hence, got issued legal notice on 28.09.2013. The same was served on 30.09.2013, even then the respondent failed to comply. The act of the respondent amounts to deficiency in service. Hence, the complainant filed the instant complaint praying for the relief as sought.

3.      In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that the complaint is false, frivolous, vexatious and deserves to be dismissed as not maintainable. While the respondent admits the coverage of the risk to the date of incident subject to terms and conditions of the policy. While denied the nature of the accident, injuries, medical treatment and expenses incurred towards treatment and taken contention that the complainant was not possessing valid driving license to drive the same at the relevant time. Among such other admissions and denials the respondent taken further contention that no complaint is made to the policy with regard the accident and also no claim is made to the respondent with regard to settlement of the claim. Further the respondent taken contention that the complainant has not sustained any injuries or disabilities as per the policy schedule, as such the complainant is not entitled for any relief as sought. Further contended that the respondent justified in repudiating the claim as such there does not arise question of deficiency in service as alleged and prays for dismissal of the complaint.

4.      On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

 

5.      Both have admits evidence affidavit, relied on documents, submits argument. The complainant apart from argument filed notes of argument while the respondent relies on citations.  Heard. Perused the records.

Finding on points is as under.

1. Negatively.
2. Negatively.
3. As per order.

 

Reasons

Points 1 and 2

 

6.      On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that to the date of accident the motor cycle belongs to the complainant was covered with insurance with the respondent.

 

7.      Now the question to be determined is, whether the non settlement of the claim amounts to a deficiency in service, if so, for what relief the complainant is entitled.

 

8.      Since the facts of the case have been narrated in detail which requires no repetition.

 

9.      The main contention of the respondent is that the respondents are unaware of the accident, injuries & treatment taken by complainant till issuance of the legal notice i.e. on 28.09.2013. By perusal of the document Ex.C3 i.e. discharge card issued by the treating doctor dtd.11.09.2013 reveals the accident in question occurred on 04.09.2013, except this document no document is produced by complainant to show that the accident had occurred on 04.09.2013. Except issuing legal notice on 28.09.2013 no claim is made to the respondent till then nor the respondents have been intimated with regard to the accident immediately as per the policy schedule or made claim to the respondent. Under those circumstances as contended by the respondent the very complaint is pre matured and there is no cause of action for the instant complaint.

 

10.    As submitted by the complainant it is true that there is no mandatory to issue legal notice before approaching this Forum, but as for as cause of action is concerned i.e. to claim the relief alleging deficiency in service there must be a claim to the respondent interalia the respondent must have denied or rejected the claim. In the instant case both factors have been absent.

 

11.    Another contention of the respondent is that, the complainant was not possessing valid DL to drew the motorcycle. Even after the respondent taken this specific contention the complainant did not produced the DL nor stated anything with regard to possession of DL in his evidence. Under those circumstances the contention of the respondent remained unrebutted. Apart from this contention the respondents also taken contention that even in the event the complainant met with accident and had sustained injuries he is in hale and healthy condition and he has not sustained or suffering from any permanent disabilities as scheduled in Sec.3 of Ex.R2 policy schedule and argued and submits as such the complainant is not entitled for any relief. In support of contention of the respondent on the above points the respondent relied on 1997 (2) CPR 8 NC – LIC of India Vs. Ramesh Chandra, wherein it is held, accident benefit was available only if it resulted in total and permanent disability as defined in the policy; 2003 (2) CPJ 102 NC –disability of complainant 40% to 50% - disability must be total and permanent to claim disability benefit- complainant is not entitled to disability benefit; 2003 (3) CPJ 77 NC- theft of vehicle reported to police after 4 days and to insurance company after about a month complaint dismissed by Forum- held repudiation justified ; 2011 (3) CPR 369 NC- there was conscionable delay of over 2 months on the part ofcomplainant- insured in intimating delay to insurance company – the delay was fatal.     By bringing the gist of the relied cases the learned counsel for respondent argued, in accordance with the relied relevancies the present complaint is not maintainable as such complainant is not entitled for the relief, by pointing out the reason no complaint, no claim, no disability certificate and prays for dismissal of the complaint.

 

12.    The learned counsel for complainant except admitting the evidence affidavit, documents and notes of argument did not produced either any documentary or oral cogent evidence in support of his case. Taking into consideration of the demerits pointed out by the respondent with the supportive citations the respondent justified in non settlement of the claim. Interalia the complainant failed to establish his case of deficiency in service with appulsive and cogent evidence. Hence, complainant is not entitled for any relief.

 

13.    In view of the above discussions we have arrived and proceed to held issue.1 and 2 negatively.

 

14.    Point.3: In view of the finding on points 1 and 2 proceeded to pass the following;

:ORDER:

         

          The complaint is dismissed. No order as to costs.

 

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 19^th day of January 2015)

 

 

 

 

         Member                         Member                                  President