Karnataka
Chitradurga
CC/18/2016
Smt.Bhagyamma W/o. Late Veeresh - Complainant(s)
Versus
The Manager, National Insurance Co.Ltd., - Opp.Party(s)
Shri.Khalid Ahmed
01 Aug 2016
ORDER
COMPLAINT FILED ON : 17/07/2016
DISPOSED ON: 01/08/2016
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA
CC. NO. 18/2016 DATED: 1st August 2016 |
PRESENT :- SRI. T.N. SREENIVASAIAH PRESIDENT B.A., LL.B.,
SMT.G.E.SOWBHAGYALAKSHMI,
B.A., LL.B., MEMBER
COMPLAINANT | Smt. Bhagyamma, W/o Late Veeresh.N, Dabha Hotel Owner, Bellary Road, S.M. Nagara, Challakere.
(Rep by Sri.Khalid Ahammed, Advocate) |
OPPOSITE PARTY | The Manager, National Insurance Company Limited, Branch Office, I Floor, Jagalur Mahalingappa Towers, B.D. Road, Chitradurga Town-577501.
(Rep by Sri. B.M. |
SRI. T.N. SREENIVASAIAH. PRESIDENT.
ORDER
The complainant has filed a complaint U/s 12 of C.P. Act 1986 against the Opposite Party (herein called OP) for direction to the OP to pay Rs.1,00,000/- the sum assured under the policy, Rs.50,000/- towards mental agony, court costs and such other relies.
2. The brief facts of the case of the complainant are that, her husband late Veeresh. N was the owner of the motor cycle bearing Registration No.KA-16 W 8749 and the same was insured with the OP under policy bearing No.603703/31/12/6200003086, which was valid for the period from 08.06.2012 to 07.06.2013. Her husband paid Rs.50/- towards additional premium which covers the risk of driver cum owner and the risk covers to the tune of Rs.1,00,000/-. It is further submitted that, on 07.03.2013 at about 2-00 AM on national highway, the said motor cycle was driven by one Gunda at that time, a lorry came in a rash and negligent manner and dashed against the said motor cycle. Thereafter, the complainant made a claim petition to the OP soon after the accidental death but, the OP did not respond. On 27.06.2016, complainant through her counsel issued a legal notice through RPAD and the same was duly served on the OP. OP replied to the said notice stating that, as the policy covers the risk of owner cum driver, the owner should drive the vehicle at the time of accident and denied the claim made by the complainant, it is not fair and it is opposed to the law, facts and probabilities of the case. It is further submitted that, when the OP issued the policy, it cannot take the stand that, the owner should drive the vehicle, it amounts to unfair trade practice. Hence, there is a deficiency of service on the part of OP so, she sustained financial loss and mental agony and etc., and prayed for allow the complaint.
3. On service of notice, OP has appeared through Sri. B.M. Ravichandra, Advocate and filed version and submitted that, the OP has issued the policy in the name of N.T. Veeresh S/o Madigara Thippeswamy to his motor cycle bearing Registration No.KA-16/W-8749 for the period from 08.06.2012 to 07.06.2013, which covers the risk of third party injury and death unlimited, PA to owner cum driver for an amount of Rs.1,00,000/-, the third party property damage is limited as per the act and the policy covers IDV of the vehicle for an amount of Rs.39,682/- as per the policy terms and conditions and confirmation of 64 VB and also MV Act. It is further submitted that, complainant intimated about the accident on 03.10.2013 through claim intimation and also letter to the Branch Manager stating that, her husband met with an accident on 07.03.2013 and died due to accidental injuries. It is further submitted that, after filling the accident claim form, medical certificate and also other necessary documents like FIR, charge sheet, inquest report, PM report, Death Certificate, RC, Policy and Genealogical Tree submitted the same to OP insurance company. The OP insurance company on 25.01.2016 issued a notice to the OP stating that, the insured is not the driver at the time of alleged accident and the policy will not covers to the pillion rider and as per the policy, insured should drive the vehicle at the time of accident and if he succumbed to death, then he is entitled for the PA claim and in this case husband of the complainant was not driving the vehicle at the time of accident and therefore, the claim of the complainant is repudiated. After receiving the said notice complainant on 27.01.2016 issued notice through her counsel for that, OP on 05.02.2016 issued one more letter to her counsel stating that, the claim of the complainant has been repudiated as mentioned in the reply notice. It is further submitted that, the complainant has intimated about the accident on 03.10.2013 wherein the accident took place on 07.03.2013 and the FIR was lodged by the Challakere Police on 07.03.2013, the intimation about the accident was given after a lapse of 7 months from the date of accident, which is a violation of condition No.1 of the policy which runs as under:
"Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under the policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender".
It is further submitted that, OP has collected a premium of Rs.50/- towards IMT 18 i.e., personal accidental benefit to owner cum driver (under Sec.III capital sum insured) for an amount of Rs.1,00,000/- and as per the said PA the owner should be on wheels that means owner should be driven the vehicle at the time of accident and also he should possess a proper and valid DL to drive a specific class of vehicle and the said Sec.III i.e., personal accident benefits give scope to details of injury and scale of compensation as under:
Details of injury | Scale of compensation |
| 100% |
| 100% |
| 50% |
| 100% |
As per the above details if the owner has sustained such an injuries, then he is entitle as per the coverages granted in policy. In view of the above stated facts prayed for dismissal of the complaint.
4. Complainant himself examined as PW-1 by filing affidavit evidence and Ex.A-1 to A-4 documents have been marked.
5. OP has examined one Sri. Malatesh C. Hallur, Assistant Manager of OP as DW-1 by filing affidavit evidence and Ex.B-1 to B-14 documents have been marked.
6. Both the sides have filed written arguments and oral arguments also heard.
7. Now the Points that arise for our consideration for the decision of the complaint are that:
Point No.1:- Whether the complainant proves that, her husband has taken insurance to his motor cycle and he met with an accident and succumbed to the injuries and OP has illegally repudiated the claim and thereby complainant has sustained financial loss and mental agony and OP has committed deficiency of service and entitled for the relief as prayed in the complaint?
Point No.2:- What order?
8. Our findings on the above points are as follows:
Point No.1:- Partly Affirmative.
Point No.2:- As per the final order.
::REASONS::
9. Point No. 1:- It is not in dispute that, the husband of the complainant late Veeresh. N was the owner of the motor cycle bearing Registration No.KA-16 W 8749 and the same was insured with the OP under policy bearing No.603703/31/12/6200003086, which was valid for the period from 08.06.2012 to 07.06.2013. Her husband paid Rs.50/- towards additional premium which covers the risk of driver cum owner to the tune of Rs.1,00,000/-. On 07.03.2013 at about 2-00 AM on national highway, the said motor cycle met with an accident and the same was driven by one Gunda at that time. Thereafter, the complainant made a claim petition to the OP soon after the accidental death but, the OP repudiated the claim of the complainant stating that, as the policy covers the risk of owner cum driver and at the time of accident owner should drive the vehicle. It is argued by the counsel for the complainant that, when the OP issued the policy, it cannot take the stand that, the owner should drive the vehicle, it amounts to unfair trade practice. Hence, prayed for allow the complaint.
10. So, as on the date of accident, insurance policy was in force. It is the main contentions of the complainant that, on 07.03.2013 at about 2-00 AM the said vehicle met with an accident and the husband of the complainant died due to injuries. Complainant made a claim and in spite of policy was in force, OP has repudiated the claim on the ground that, the insured should drive the vehicle at the time of accident and in the instant case, the insured is not the driver which is violation of policy conditions and MV Act and thereby he sustained financial loss and mental agony and OP has committed deficiency of service so, this complaint has been filed.
In the policy given by the OP it is mentioned that:
Persons or classes of persons entitled to drive:
" Any person including insured provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license, provided also that the person holding an effective learner's license may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rule, 1989".
11. In support of her contentions, complainant has relied on her affidavit evidence in which she has reiterated the contents of complaint. Complainant has also riled on documents like copies of legal notice dated 27.06.2016 marked as Ex.A-1, copy of RC, postal receipt and postal acknowledgement marked as Ex.A-2, policy is marked as Ex.A-3 and reply to the notice wherein the OP has informed that, as the policy covers the risk of owner cum driver i.e., the owner should drive the vehicle at the time of accident, hence, the claim is not payable as per the policy terms and conditions marked as Ex.A-4.
12. As per MV Act no person shall drive a motor vehicle in a public place, unless he holds an effective and valid driving license issued to him authorizing to drive the vehicle and no person shall so drive a transport vehicle hired for his own use or rented under any scheme made under sub section (2) of Sec.75, unless his driving license specifically entitles him to do so. As per policy schedule under driver clause "any person including the insured provided that a person driving holds an effective driving license at the time of accident and he is not disqualified from holding or obtaining such a license. Provided also that the person holding an effective learners license may also drive the vehicle and that such a person satisfies the requirements of rule 3 of the Central Motor Vehicle Rules 1989". But, the OP has not taken a contention about the DL. In view of the above stated facts, OP has wrongly repudiated the claim.
13. On the other hand, it is admitted by the OP that, husband of the complainant is the owner of said vehicle and it was duly insured with the OP. It is the main contentions of the OP that, at the time of accident, the insured should drive the vehicle but, in the instant case, the insured is not the driver of the vehicle at the time of accident, which is violation of the policy terms and conditions and also the MV Act so, OP has rightly repudiated the claim of the complainant and prayed for dismissal of the complaint
14. In support of its contentions, OP has relied on affidavit evidence of its Assistant Manager, in which it has reiterated the contents of version. OP has also riled on documents like certified copy of policy marked as Ex.B-1, letter dated 03.10.2013 by the complainant claiming accidental benefit marked as Ex.B-2, claim intimation marked as Ex.B-3, certified copy of FIR marked as Ex.B-4, certified copy of charge sheet marked as Ex.B-5, Inquest mahazar marked as Ex.B-6, PM report marked as Ex.B-7 wherein it has been mentioned that, death is due to shock and hemorrhage on a serest of injuries sustained, letter of complainant to the OP with regard to the delay in making claim by her wherein, it has been mentioned that, due to the death of her husband she was shocked and she fell ill and also she has no knowledge about the insurance claim. Immediately after the recovery and after transferring the RC in her name, she made a claim before the OP marked as Ex.B-8, copy of personal accident claim form marked as Ex.B-9, Notice dated 27.06.2016 marked as Ex.B-10, medical certificate is marked as Ex.B-11 wherein it has been mentioned that, death is due to shock and hemorrhage as a reset of injuries sustained, statement of one Umesh S/o Chandranna marked as Ex.B-12, reply dated 05.02.2016 to the notice marked as Ex.B-13 and reply to the claim made by the complainant is marked as Ex.B-14.
In support of its contention, OP has relied on the following decisions:
1) 2004 CCJ 471 to 473 (NC)
2) 2012 CPR 12 (NC)
3) III CPJ 2003 77 (NC)
4) CPR 2013 II 363
5) 2013 CPR II 394 to 396 (NC)
6) CPR 2014 (2) 328 to 331
7) Order in First Appeal No.321/2005
dated 09.12.2009
8) CPR 2014 663 to 666 (NC)
The above said decisions are all not applicable to the case on hand. The facts and circumstances of each case are different to the present case on hand.
15. On hearing the rival contentions of both the sides and on careful perusal of the entire records, it clearly shows that, husband of the complainant is the owner of motor cycle bearing Reg. No.KA-16 W-8749 and the same was insured with the OP under policy No.603703/31/12/6200003086 which was valid for the period from 08.06.2012 to 07.06.2013 by paying additional premium of Rs.50/- which covers the risk of driver cum owner for an amount of Rs.1,00,000/-. On 07.03.2013 the said vehicle met with an accident. At that time, the same was driven by one Gunda and in the said accident, the husband of the complainant died due to grievous injuries. Therefore, complainant made a claim petition before the OP along with all the necessary documents but, the OP repudiated the claim made by the complainant on the ground that, the insured should drive the vehicle at the time of accident. Admittedly, the husband of the complainant was the owner of said vehicle and it was duly insured with the OP and the policy was in force as on the date of accident. OP has appointed Surveyor and who assessed the loss and submitted the report. According to the counsel for the OP, the husband of the complainant has violated the terms and conditions of the insurance policy and so, OP has rightly repudiated the claim and she is not entitled for any relief. In the policy itself it is mentioned that, "Any person including insured provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license, provided also that the person holding an effective learner's license may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rule, 1989". Moreover in the policy under the head limit of liability, it is mentioned that, limit of the amount of the company's liability under Sec.II-1(ii) in respect of anyone claim or series of claims arising out of one event: UPTO Rs.100000/-. The policy issued by the OP to the husband of the complainant is a personal accident policy, such being the case, the question of driving of the vehicle by the insured and the violation of terms and conditions of the policy does not arise and at the time of accident the policy was in force. Therefore, the complainant has a right to claim the amount covered under the policy. Considering the facts and circumstances of the case and the documents produced by both the parties, we come to the conclusion that, complainant is entitled to the claim the amount i.e, the sum assured under the policy. Accordingly, this Point No.1 is held as partly affirmative to the complainant.
16. For the foregoing reasons, we pass the following.
ORDER
It is ordered that the complaint filed by the complainant U/s 12 of CP Act 1986 is hereby partly allowed.
It is ordered that, the OP is directed to pay Rs.1,00,000/- the sum assured under the above said policy along with interest at the rate of 6% p.a to the complainant from the date of complaint till realization.
It is further ordered that, the OP is directed to pay a sum of Rs.5,000/- towards mental agony and Rs.5,000/- towards costs of this proceedings.
It is further ordered that, the OP is directed comply the above said order within two months from the date of this order.
(This order is made with the consent of Lady Member after the correction of the draft on 01/08/2016 and it is pronounced in the open Court after our signatures.)
MEMBER PRESIDENT
-:ANNEXURES:-
Complainant by filing affidavit evidence taken as PW-1
Witness examined on behalf of complainant:
-Nil-
OP by filing affidavit evidence of Sri. Malatesh C. Hallur, Assistant Manager as DW-1:
Witnesses examined on behalf of OP:
-Nil-
Documents marked on behalf of complainant:
01 | Ex-A-1:- | Legal notice dated 27.06.2016 |
02 | Ex-A-2:- | Copy of RC, postal receipt and postal acknowledgement |
03 | Ex-A-3:- | Copy of Policy |
04 | Ex-A-4:- | Reply to the notice |
Documents marked on behalf of Opponent:
01 | Ex-B-1:- | Certified copy of policy |
02 | Ex-B-2:- | Letter dated 03.10.2013 by the complainant claiming accidental benefit |
03 | Ex-B-3:- | Claim intimation |
04 | Ex-B-4:- | Certified copy of FIR |
05 | Ex-B-5:- | Certified copy of charge sheet |
06 | Ex-B-6:- | Inquest Mahazar |
07 | Ex-B-7:- | PM report |
08 | Ex-B-8:- | Letter of complainant to the OP with regard to the delay in making claim |
09 | Ex.B-9:- | Copy of personal accident claim form |
10 | Ex.B-10:- | Notice dated 27.06.2016 |
11 | Ex.B-11:- | Medical certificate |
12 | Ex.B-12:- | Statement of one Umesh S/o Chandranna |
13 | Ex.B-13:- | Reply dated 05.02.2016 to the notice |
14 | Ex.B-14:- | Reply to the claim made by the complainant |
MEMBER PRESIDENT
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