Karnataka

Belgaum

CC/158/2015

Smt. Sangeeta Nagappa Nayak - Complainant(s)

Versus

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

Sanjay A Patil

17 Jan 2017

ORDER

                 

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.158/2015

 

                       Date of filing: 13/03/2015

 

                                                                                                                Date of disposal:17/01/2017

 

P R E S E N T :-

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

 

COMPLAINANT       -

Smt. Sangeeta W/o Nanappa Naik, Age: Major, Occ: Household Work, R/o: At Post U, Khanapur, Tq: Hukkeri, Dist. Belagavi – 591309.                             (Rep. by Sri.S.A.Patil, Adv.)

- V/S -

 

OPPOSITE PARTY   -

The Divisional Manager, The New India Assurance Co. Ltd., Divisional Office, Club Road, Belagavi.                               (Rep. by Sri.A.A.Patil, Adv.)

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) directed to pay compensation to the complainant towards death of complainant’s husband as per policy of Rs.2,00,000/- with interest from the date of the incident/accident and Rs.20,000/- towards mental agony and cost etc.,

 

2.      The facts of the case in brief are that;

 

          It is contended that, the complainant is the legal heir of the deceased Nanappa S/o Lagamappa Nayak who is registered owner of the Tata 407 vehicle bearing No. KA-23/5537 and the said vehicle was insured with OP vide Policy No.152304311201 00005024 valid from 25.03.2013 to 24.03.2014.  

 

          It is case of the complainant that, on 16.05.2013, at about 8.00 P.M. the said deceased Nanappa while tightening the vegetable trays by rope on said vehicle, at that time, the complainant’s husband accidentally slipped and sustained fatal injuries to his head and succumbed on the way to the Hospital and accordingly, the Nippani police have registered the case U/s. 174 of Cr.P.C. under U.D.No.09/2013. The Post Mortem was conducted and body was handed over to the complainant.

 

It is contended that, after the incident, the complainant has given intimation to the OP’s office about the said incidents and OP officials told to the complainant that, to fill up the claim form alongwith necessary documents which are conclusive proof of the above said incident. Accordingly, the complainant furnished all documents alongwith claim form through RPAD on 20.10.2014 and the same was duly served to the OP on 21.10.2014. Insptie of this, the OP has not paid any compensation to the complainant as agreed by the OP.

 

 Further, it is the case of the complainant that, the complainant has issued legal notice to the OP on
09-01-2015 for non payment of compensation amount, which is served on 16-01-2015 upon the OP, but till today the OP has neither paid the amount not replied the said legal notice, it shows that, there is a deficiency in service on the part of the OP, as it is against the principles of law. Thus, the complainant is constrained to file this complaint against the OP, claiming compensation of Rs.2,00,000/- with interest from the date of incident/accident.  

 

3.      After receipt of said notice to the Opponent, the Op has appeared through his Counsel and resisted the claim of the complainant is false, frivolous and vexatious. The complaint of the complainant does not fall under the provisions of the C.P. Act and as such the complaint deserves to be dismissed as not maintainable.

 

          It is contended that, the contents of para NO.2 & 3 of the complaint are totally denied by the OP and further the OP has respectfully submits that, the complainant has not given any intimation either to the OP or to the Gadhinglaj branch office, from whom the insured has taken the policy, about the incident which allegedly took place on 16.05.2013. Hence, the OP is under no legal obligation to pay the compensation to the complainant by settling her claim.   

 

          It is further contended that, the copy of the policy clearly revels that, the said policy bearing No.15230431120100005024, dtd:25.03.2013 to 24.03.2014, in respect of the vehicle issued by the New India Assurance Co. Ltd., Gadhingalaj, the premium is also collected by the said office, as the complainant has failed to give any intimation regarding the alleged incident or to make any claim, hence there is no question of settlement of the claim of the complainant by the said office. The OP further contended that, the Personal Accident Cover for Owner-Driver claims are handled and decided by the policy issuing offices only as they are in possession of all the relevant documents etc., of the insured vehicle. Accordingly, as the complainant has not at all approached the said office, which has issued the policy in question, the complaint of the complainant is not at all maintainable under the law, as this Hon’ble Forum has no territorial jurisdiction to entertain and try this case. On this count itself, the complaint of the complainant is liable to be dismissed. It is submitted that, mere carrying of the business by the OP at Belagavi will not confer jurisdiction upon this Hon’ble forum, as neither has it received any premium from the insured nor it has issued any policy in the name of the insured.

         

          It is further contended that, the OP specifically deny that, as per the terms of the policy, the complainant applied for the policy benefits and she has sent all the necessary documents etc., Further it is case of the OP that, the insurance policy is a contract between the insurer and the insured and both have to abide by the contents of the policy. The claim arising out of the insurance policy is subjected to the terms, conditions, exclusion, definitions, provision etc., specifically mentioned in it and a breach of any of these on the part of the insured then, he will not be entitled for any amount under the policy. It is submitted that, as per conditions of the policy, upon the happening of any event which may give rise to a claim under a policy, the insured shall forthwith give a notice to the insurer i.e. the policy issuing office with full particulars of the claim. Satisfactory proof shall be furnished to the insurance company of all the matters upon which the claim is based.

          Further it is case of the OP that, the complainant is not maintainable under the policy in question. It is further contended that, the Personal Accident Cover for Owner-Driver, provided the bodily injury/death sustained by the Owner-Driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or traveling in the insured vehicle as a
co-driver, caused by violent accidental external and visible means which independent of any other cause. As the alleged death of the insured i.e. husband of the complainant has not caused in the manner described above, under the law the complaint is liable to be rejected and there is no negligence or deficiency in service on the part of the OP and prayed for dismissal of the complaint.

 

4.      Both the parties have filed their affidavits in support of their case, the documents produced on behalf of the complainant marked as Ex.P-1 to Ex.P-9 for sake of our convenience. On behalf of OP has not filed any documents. Heard the arguments on both sides.

 

 

Now, on the basis of these facts, the following points arise for our consideration:

 

1. Whether the complainant has proved that, there is deficiency of service on the part of the OP not settling the claim of  policy cover towards death of owner?

 

 

2. What order?

 

 

5.      Our findings to the above points are as under:

 

                              

1. In Affirmative.
2. As per the final order for the following:

 

 

                               :: R E A S O N S ::

 

 

 

6.      POINT NO:1:-  We have perused the pleadings of the parties and the affidavit evidence and documents placed on record and the arguments advanced, it is evident that, the deceased is the owner-driver/R.C. holder of 407 vehicle and has taken insurance to his vehicle, the said vehicle was insured with OP vide Policy No.152304311201 00005024 valid from 25.03.2013 to 24.03.2014.

 

The further case of the complainant is that, on 16.05.2013, at about 8.00 P.M., while tightening the vegetable trays by rope on said vehicle of deceased, suddenly the deceased Nanappa slipped and sustained fatal injuries to his head and succumbed on the way to the Hospital, and accordingly, the Nippani police have registered the case U/s. 174 of Cr.P.C. under U.D.No.09/2013 and the Post Mortem was conducted. Thereafter, the complainant has given intimation to the OP/Insurance Company about the said incidents. The complainant send the claim form through RPAD on dtd:20.10.2014 alongwith necessary document which are conclusive proof of incident i.e. Xerox copy of F.I.R. and Charge Sheet marked as Ex.P-1, Xerox Policy Copy marked as Ex.P-2, Xerox copy of D.L. marked as Ex.P-3 and Xerox copy of Claim Form marked as Ex.P-4, and the same was duly served to the OP/Insurance Company on dtd:21.10.2014. But, the OP/Insurance Company neither replied nor paid the compensation to the complainant as agreed and finally, the complainant has issued legal notice to the OP/Insurance Company  on dtd: 09-01-2015 which is marked as Ex.P-7 and Postal receipts and acknowledgement which are marked as Ex.P-5 & 6, the same has marked as P series for sake of our convenience.

 

The specific contention of the OP that, it is evident that, by seeing the said policy bearing No.15230431120100005024, dtd:25.03.2013 to 24.03.2014, in respect of the vehicle issued by the New India Assurance Co. Ltd., Gadhingalaj and the premium also collected by the said office, as the complainant has failed to give any intimation regarding the alleged incident or to make any claim, hence there is no question of settlement of the claim of the complainant by the said office. The said contention has not established by producing provision of law and cogent document regarding alleged contentions stated in the written version by the OP as this Forum has no jurisdiction to try and as the complainant not entitled to claim before the branch office mere carrying of the business by the OP at Belagavi will not confer jurisdiction upon this Hon’ble forum. Therefore, in our consider view that, the contention of the OP has no force and no merit at all to consider. Hence, the Op has failed to prove his case as alleged in the written version as well as affidavit evidence. More ever, the OP did not reply to the legal notice issued by the complainant, nor settled the claim of the complainant towards death of her husband, who is owner of the vehicle. Therefore, not settling the claim of complainant and taking un-sustainable grounds are amounts to deficiency of service on the part of the OP. Mere pleadings in written version and affidavit evidence is not sufficient to hold that, the OP/Insurance Company, Belagavi has no jurisdiction or no right to settle the claim, for that proposition the OP has relied a following decision as below,

 

1. 2010 (3) CPR 36 (NC)
2. III (2008) CPJ 191 (NC)
3. [ 2010 Kant MAC 108 (SC)]
4. 2002 (1) CPR 6 (NC)
5. [ 2011 Kant MAC 13 (SC)]

 

 We have gone through the above relied decisions of Hon’ble National Commission and Supreme Court, the said relied decisions pertains to License of the Driver of vehicle and in respect of transport vehicle, hence the above decisions are not applicable to instant case and another decision relied by OP of Hon’ble Supreme Court reported in [2011 Kant MAC 13 (SC)] wherein, the Hon’ble Supreme Court observed that, it pertains to damage of consignment during carriage through railway, the same has been not intimated to the insurer and non communication of accident of insurer is amount to violation of policy, but in the instant case there was no such damage of consignment. Therefore, in our consider view, the relied decisions are not applicable and more ever when there is no any pleading in respect of driving license then, how the OP could have relied and argued on the point of D.L. and Transport Vehicle and even he has not taken contention in respect of same as well as in affidavit evidence, hence in our consider view that, with due respect to Hon’ble National Commission and Supreme Court the said decisions are not applicable to this case.  

 

 After careful going through the above facts, we are of the opinion that, even after issuing the legal notice and submitted claim form for settling the claim, but the OP neither reply to the legal notice nor settle the claim of the complainant and also as the deceased has paid huge premium for covering the risk of vehicle as well as Driver-Owner, even submission of claim form before the OP/Insurance Company, it is mandatory duty of the insurance company to indemnify the insurer, but the OP without any valid reasons of legal aspects, has taken contention in respect of policy premium paid before the National Insurance Company, Gadingalaj stated that, not before this insurance company, Belagavi, which is unjustified and it is against the policy/rules of OP’s company.

       No-doubt it is true that, the insurance policy issued by the National Insurance Company and the OP is one of the branch of the same insurance company then, how the OP could have taken shelter that, this Op has not issued the policy. So under such circumstance it is mandatory duty of the OP, wherever the branch of the Insurance Company are situated, the policy holder may file claiming form for the settlement, it is the duty of the OP branch has to settle the claim by intimating regarding claim to their Head Office, but in this case, the OP neither intimate regarding claim form nor settle the claim of the complainant to the Head Office, these attitude of the OP is amounts to deficiency of service on the part of the OP, even though the R.C. holder violate the any one of the policy condition, even inspite of death the insurer cannot be withheld the claim of the complainant, for that proposition of law, we would like to refer a decision of Hon’ble National Commission reported in IV (2015) CPJ 468 (NC), it is held that, the insurer cannot be repudiated the claim of the complainant in toto and the claim should be settled for non standard basis in case of violation of policy condition. Certainly, in this case, there is no violation of any policy conditions, so in our consider view, non settlement of claim of the complainant without any valid reasons and grounds and mere alleging that, complainant has not approach to the proper office of insurance company who issued policy, i.e. National Insurance Company, Gadingalaj, and as  this Hon’ble Forum has no territorial jurisdiction to entertain and try this case, the alleged contention are not acceptable and it has no force in the contention and even he has not establish the case as alleged in the complaint. Hence, the act of the OP is amount to deficiency of service on the part of the OP.

 

Now, coming to the quantum, after scanning carefully pleadings and documents i.e. Ex.P-1 (FIR, Charge Sheet alongwith complaint), it is evident that, death is caused when the deceased tightening the vegetable trays at that time all of sudden fallen and get head injuries due to this the owner-driver of the vehicle succumbed to death way of Hospital, which is not challenged by the OP/Insurance Company by filing interrogatives. As per policy condition  of Section IV – Personal Accident Cover for Owner-Driver to the extent of Rs.2,00,000/- the compensation shall be payable under only one of the items (i) to (iv)

 

1. Death
2. Loss of two limbs or sight of two eyes or one limb and sight of one eye.
3. Loss of one limb or sight of one eye
4. Permanent total disablement from injuries other than named above.  

           

In view of the law laid down by the Hon’blee Supreme Court reported in 2010 AIR (SC) 2090, wherein it is held that, even though there is violation of policy condition, the insurance company cannot repudiate the claim and the claim should be settled on non standard basis. Admittedly the deceased owner having LMA driving license, but he did not get endorsement in the driving license to drive the class of vehicle which is not a fundamental breach of policy conditions as held and observed by the Hon’ble Supreme Court. So, it would be just and proper to adjudicate the matter by applying non standard basis, it would meet ends of justice. Therefore, the incident occurred during the course of loading and tightening the vegetable tray it includes i.e. whilst mounting into/dismounting from or traveling in the insured vehicle as a co-driver, caused by violent accidental external and visible means, i.e. death to the owner-driver, so in our consider view that, it would be just and proper to apply a non standard basis by applying and considering 75% of Rs.2,00,000/- it comes to Rs.1,50,000/-, hence in our consider opinion that, the complainant is entitled Rs.1,50,000/- towards death of deceased husband of complainant and also entitle to recover Rs.4,000/- towards mental agony and Rs.1,000/- towards cost of the proceedings. Accordingly, we answer to the Point No.1 in affirmative and proceed to pass the following;       

 

O R D E R

 

For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is hereby partly allowed with costs.

 

           The OP shall pay a sum of Rs.1,50,000/- towards personnel accident death claim to the complainant.

 

          The OP shall pay a sum of Rs.4,000/- towards mental agony and Rs.1,000/-towards costs of the proceedings.

 

          The OP is granted 8 weeks time for compliance of this order, failing to which the OP is liable to pay together with interest @ 9% p.a. from the date of complaint i.e. 13.03.2015 till its realization. 

 

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this  17^th day of January, 2017).

 

 

Sri A.G.Maldar, President

Smt. J.S. Kajagar,                Lady Member.

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