COMPLAINT FILED ON: 28/01/2020

DISPOSED ON:17/04/2023

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

C.C.NO:12/2020

DATED: 17^th  April 2023

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                  Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER                       

                  Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER

:: ORDER ::

By Smt. B.H.YASHODA, B.A., LL.B., LADY MEMBER.

The above complaint has been filed by the complainant under Section 12 of Consumer Protection Act 1986 for seeking the relief/s of to directing the opponents to pay compensation of Rs.10,00,000/- with 12% interest from the date of accident till realization to the complainants and to direct the opponents to pay Rs.1,00,000/- towards the mental shock and agony sustained by the complainant and to grant such other reliefs as this Hon'ble Forum may deems fit to grant at the circumstances of this case in the interest of equity and justice.

2. The Brief facts of the complaint is as follows :-

That on 04/06/2018, at about 7.00 a.m. one Kiran Kumar S/o Late Anjinappa and another one Ravi Naik @ Ravikumar were proceeding from chitradurga towards Bharamsagara in a motor cycle bearing No:KA.17/EZ-5266.  Kiran kumar was riding the motor cycle in a moderate speed by following all traffic rules and regulations on N.H.-4 road, near Lakshmisagara gate, at that time one unknown lorry came in a rash and negligent manner and dashed against the said motor cycle.  As such both were fell down from the bike and sustained grevious injuries and fractures.  Immediately, after the accident they were shifted to Government Hospital chitradurga in on ambulance, but due to the accidental injuries, they were died on the way.  The medical officer, district hospital Chitradurga conducted P.M. thereafter the body of the Kiran kumar handed over the complainants.  The complainants shifted the body in a hired car to their native place and performed death ceremony by spending huge amount said Kiran kumar is the son of the 1^st complainant and brother of complainant No.2 and 3.

3. At the time of accident, opponent No.1 carried the road work in the accident place wherein the opponent No.1 or their workers have not implicated any precautionary sign boards and negligently constructed the road works, as such the accident has occurred.  The deceased Kiran kumar was obtained insurance policy to his motor cycle bearing No: KA-17 / EZ -5766 opponent No.2.  The policy was in force as on the date of accident.  After the accident the complainants approached opponents No.1 and 2 requested to pay proper compensation.  In the beginning the opponents are assured to the complainants to pay proper compensation, on the later the opponents are refused to pay the same.  As such the complainant No.1, issued legal notice dated:16/12/2019 and 27/12/2019 respectively to the opponents by calling upon them to pay the proper compensation amount of Rs.10,00,000/-(Rupees ten lakhs) with 12% interest P.A from the date of accident to complainant within "FIFTEEN" days from the date of service of this notice.  But the opponents neither replied the notice nor paid any compensation to the complainants till today.  Thereby the opponents have committed deficiency of service to the complainants.

4. The cause of action arose to the complaint when the complainant No.1 has sent legal notice dated:16/12/2019 and on 27/12/2019 and on subsequent days, after service of Legal notice to the opponents, within the jurisdiction of this Hon'ble forum, hence the Hon'ble Forum has got jurisdiction to decide the complaint.  As such the complainant prays for compensation from the OPs, by filing this complaint before this Hon'ble commission.

5. After registering the complaint, the commission has issued the notice to the OPs and the same has been duly served.  And OPs have appeared through their counsel and filed their version / objections.

6. The OP No.1 has submitted that the complainants that there is no relationship of consumer and trader between the complainants and this opponent in any way, as defined under the consumer protection Act.  This opponent is not at all service renderer to the complainants.  The complainants did not sought any service from this opponent by paying any service charges to him.  Hence, the question of deficiency of services does not arise at all.  Further, OP No.1 has submitted that the complainant had stated before the police that there was no negligence on the part of this opponent and not committed any wrong.  Further, it is submitted that there is no charge sheet filed by the Police on the basis of said FIR against this opponent in respect of the incident alleged in the complaint / FIR.  The said Police, after a through investigation has submitted a 'C' Report to the Hon'ble II^nd Additional Civil Judge (Jr-Dn) and JMFC Court, Chitradurga.  That is to submit that the Police have not registered any case against this opponent for the complaint / FIR lodged by the complainant.  As such also the present complaint filed before this Hon'ble Court is not at all maintainable and sustainable under law against the opponent for any of the reasons as alleged by the complainant in her complaint and hence is liable to be dismissed against this opponent.  That on 04/06/2018 one Kiran kumar and another Ravi naik @ Ravikumar while riding on a motor cycle bearing No. KA-17/EZ-5266 near Lakshimsagara gate were hit by an unknown lorry driver, due to which the motor cycle riders sustained fatal injuries and succumbed to death and further averments made by the complainants under Para-2 of their complaint that the opponent No.1 was carrying road work without putting any caution sign boards and hence the alleged accident occurred and this OP No.1 has contributed major act to the cause of the alleged accident and further averments made under Para-4 of the complaint that after the alleged accident, the complainants approached the opponents and requested for compensation who gave assurance to any proper compensation, but refused later and further averments that the opponents did not reply to their notice wherein they have claimed to pay a sum of Rs.10,00,000/- with interest and hence committed deficiency of service to the complainants and further averments under Para-5 & 6 of the complaint that the cause of action arose for the complaint on 16/12/2019 & 27/12/2019 after service a legal notice to the opponents and hence their prayer for directing the opponents to pay compensation of Rs.10,00,000/- with 12% interest and Rs.1,00,000/-towards mental shock and agony etc.. are all no true and correct but false and are also specifically denied in thread bear as not sustainable and maintainable under law and the same are fabricated and concocted story of the complainant to make unlawful gains from the pockets of this opponent No.1.  It is further submitted that the complainants have not produced any material evidence to prove / establish to the satisfaction of the Hon'ble Court. 

7. There is no deficiency of services caused to the complainants by this opponent No.1.  The complainants had approached the wrong forum to make unlawful gains from the hands of this opponent.  Hence, OP 1 prayed that the complaint is liable to be dismissed against the opponent No.1.

8. That in their version, the opponent No.2 admitted that they have issued policy to the complainant motor cycle bearing No:KA-17-EZ-5266 policy bearing No:25937869 valid from 03/03/2018 to 02/03/2019, subject to the terms and conditions of the policy and its endorsement and the statutory provisions.  The said policy covers third property damages own damage and owner cum-rider (Rs.1,00,000/-) of the said motor cycle.  But the petitioner not given any intimation as per Section 134 (C) of I.M.V.C. Act and submitted any claim form that the deceased was died in the accident.  Similarly the Police also not given any information to the insurance co, as per Section 158 (6) of M.V.Act, as per the policy condition if the owner cum rider died in the accident the same is intimated within time to insurance co.  In this case the petitioners are not given any claim form.

9. The petitioner were already filed claim petition under Section 163 (a) of M.V. Act and the same is dismissed.  The petitioner's not disclosed the same in the petition.  As per the Police papers the accident occurred on 04/06/2018, and the petition filed on 28/01/2020, hence there is no limitation to file the said petition, therefore this petition is not maintainable in law and petition is barred by limitation.  Hence OP No.2 is prayed that the complaint may kindly be dismissed with cost.

10. Complainant No.2 has examined as P.W-1 filed his affidavit evidence and got marked the documents as exhibits A-1 to A-13 and closed their side evidence.

11. The OP No.1 has examined and filed his affidavit evidence by Lakshinana Ravi Teza, Deputy Manager, National Highways Authority of India, chitradurga and got marked the Exhibits Exhibit.B-2 to B-4 and closed their side evidence.

12. The OP No.2 as filed his affidavit evidence by J.D.Nitin S/o T-B Devaraju, Senior Executive of Iffco Tokio General Insurance co Bangalore.  And got marked the documents as Exhibits Exhibit.B-1 and closed their side evidence.

13. The complainant and OPs have filed their written arguments and heard the arguments. After perusal of the complaint and evidence and all documents, produced by the complainants and opposite parties.

14. Now the points that arise for our consideration for decision of above complaint are that.

1. Whether the complainants proves that he is the consumer of OP No.1?
2. Whether the complainants proves that he is the consumer of OP No.2?
3. Whether the complainants proves that the OP No.1 have committed deficiency of service in not completing the road work by implicating any signs or caution boards at road construction work?
4. Whether the complainants proves that the OP No.2 have committed deficiency of service in not paying any compensation amount to the complainants?
5. Whether the complainants is entitled to get any relief as sought in the complaint?
6. What Order?

15. Our findings on the above points are as follows:

Point No.1: Negative

Point No.2: Affirmative

Point No.3: Negative

Point No.4 & 5: Affirmative

Point No.6: As per final order

        16. Point No.1 & 3:- The complainant examined as P.W-1 and document marked as Exhibits A-1 to A-13.  The OP No.1 has examined as D.W-2 and documents are marked as Exhibit B -2 to B-4.  That on 04/06/2018 at about 7.00 A.M. the deceased Kiran kumar S/o Late Anjinappa was riding the motor cycle along with Ravi Naik @ Ravi kumar bearing No.KA-17/EZ-5766 from chitradurga towards Bharamasaga on N.H.4, near Lakshmisagara gate, at that time, one unknown lorry in a rash and negligent manner and dashed against the motor cycle, as such both were fell down from the bike and sustained grievous injuries and fracture.  Immediately after the accident, they were shifted to Government Hospital Chitradurga in an ambulance, but, due to the accidental injuries, they were died on the way.  The complainant stated in the complaint that at the time of accident, OP No.1, carried the road work in the accident place, wherein OP No.1 or their workers have not implicated any precautionary sign boards and negligently constructed the road works, as such, the accident has occurred.  Hence, the OP No.1 has contributed his major act to cause the accident.  But, the complainant not produced any documents, transactions between deceased Kiran kumar and OP No.1.  As such, the deceased Kiran kumar is not a consumer as per Section 26 of Consumer Protection Act 1986.  Hence, the point 1 & 3 are negative and the complainants is not entitled any compensation from OP No.1.

        17. Point No.2: The OP No.2 was examined as D.W-1 and got marked the documents as Exhibit B-1 i.e., copy of the insurance policy as per this Exhibit, the deceased Kiran kumar has obtained insurance policy to his motor cycle bearing KA-17/EZ-5766 with OP No.2, the said policy was in force from 03/03/2018 to 02/03/2019.  As such, the Point No.2 is considered as affirmative.

         18. Point No.4 and 5: The deceased Kiran kumar has obtained insurance policy to his motor cycle bearing KA.17/EZ-5766 with OP No.2, the said policy was in force as on the date of accident.  After the accident, the complainant approached opponent No.2 and requested to pay proper compensation.  In the beginning the opponent have assured to the complainant to pay proper compensation and later, the opponents are refused to pay the same.  As such, the complainant No.1 issued the legal notices dated:16/12/2019 and 27/12/2019 respectively to the opponents by calling upon them to pay the proper compensation amount of Rs.10,00,000/- (Rupees Ten Lakhs) with 12% interest from the date of accident to the complainant within "Fifteen" days from the date of service of notice, but the opponents neither replied to the notice, not paid any compensation to the complainant till today.  That in version of opponent No.2 admitted that they have issued policy to the deceased Kiran kumar motor cycle bearing No.KA-17 EZ-5766 policy bearing No.25937869 valid from 03/03/2018 to 02/03/2019, subject to the terms and conditions of the policy and its endorsement and the statutory provisions.  The said policy covers third property damages, own damage and owner cum rider (Rs.1,00,000/-) of the said motor cycle.  But, the Petitioner not given any intimation as per Section 134 (c) of I.M.V Act and submitted any claim form that the deceased was died in the accident.  Similarly the police also not given any information to the insurance co, as per Section 158 (6) of M.V. Act.  As per the policy condition, if the owner cum rider died in the accident the same is intimated within time to insurance co.  In this case, the petitioners are not given any claim.  Further, the OP No.2  has stated that the petitioners were already filed claim petition under Section 163 (a) of M.V. Act and the same is dismissed.  The petitioner's not disclosed the same in the petition.  As per the police papers the accident occurred on 04/06/2018 and the petition filed on 28/01/2020, hence there is no limitation to file the said petition, therefore this petition is not maintainable in law and the petition is barred by limitation, but, the OP No.2 has not produced any documents, wherein the complainant has already filed claim petition under Section 163 (a) of M.V. Act and the complainant filed this complaint within two years and also the OP No.2 has admitted that the insurance policy, hence, there is no necessity to give intimation to OP No.2 as per Section 134 (4) and 158 (b) of M.V.Act.

        19. As per Exhibit B-1 policy was stands in the name of deceased Kiran kumar, valid from 03/03/2018 to 02/03/2019, as mentioned in the policy liability cause-under Section 11-1(i) of the policy-death of the body or injury.  Such amount as is necessary to meet the requirements of the motor vehicle Act 1988 under Section 11-1(ii) of policy damage of third party property is Rs.1,00,000 (One Lakhs) P.A cover Under Section III for owner driver is Rs.1,00,000 one lakhs.

        20. After investigation, the lorry involved in accident not traced out, so the police submitted "C" Report before the 2^nd Additional Civil Judge (Jr.Dn.) and J.M.F.C at Chitradurga i.e., Exhibit A-4.  As such, the complainant is entitle only for P.A claim of Rs.1,00,000 (One Lakhs).

        21. On perusal of the complaint and documents submitted by the complainant and opponents, that the complainants have proved that they are entitled for compensation for P.A cover from OP No.2. As such, the Point No.4 & 5 are taken into consideration as affirmative.

22. Point No: 6 :- As discussed on the above points and for the reasons stated therein we pass the following.

:: ORDER ::

     The present complaint filed by the complainants Under Section 12 of Consumer Protection Act 1986 against the opponent No.2 is partly allowed.

     It is directed to the Opponent No.2 to pay Rs.1,00,000 Lakhs towards compensation to the complainants with interest of 6% p.a. from the date of filing of the complaint.

     It is directed to the Opponent No.2 to pay Rs.10,000/- towards mental agony and Rs.5000/- towards the cost of proceedings to the complainants.

     The OP No.2 has to comply the above orders within one month from the date of order, if failed, the OP No.2 has to pay with interest 8% p.a. on the total compensation amount to the complainant from date of filing the complaint, till its realization.

     The present complaint dismissed against OP No.1

(Dictated to the Stenographer, typed by him, the transcript corrected, revised and

then pronounced in the open commission by us on ^17th April 2023.)

                                                                     Sd/-                               Sd/-                                     Sd/-

LADY MEMBER               MEMBER                     PRESIDENT

-:ANNEXURES:-

Witness examined on behalf of Complainant:

PW-1: Arun S/o Late Anjinappa, by way of affidavit evidence

Witness examined on behalf of opponent No.2:

DW-1: T.D.Nitin S/o T.B.Devaraju, by way of affidavit evidence

Witness examined on behalf of opponent No.1:

DW-2: Lakhinana Ravi Tezo S/o Lakhinana Sudhakar by way of affidavit evidence

Documents marked on behalf of Complainants:-

Documents marked on behalf of opponent No:2

Documents marked on behalf of opponent No:1

                                                                 Sd/-                                         Sd/-                                     Sd/-

LADY MEMBER               MEMBER                     PRESIDENT