BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 50/11.
THIS THE 23rd DAY OF NOVEMBER 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
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COMPLAINANT :- Smt. Shivamma W/o. Boddayya, age 61 years,
Occ: Household, R/o. Neermanvi village, Tq. Manvi, Dist: Raichur.
//VERSUS//
OPPOSITE PARTY :- The Manager, National Insurance Company
Limited, Branch Raichur.
CLAIM : For to direct the opposite Insurance Company
to pay a sum of Rs. 1,10,000/- being the insured sum under the policy with cost.
Date of institution :- 28-06-11.
Notice served :- 15-07-11.
Date of disposal :- 23-11-11.
Complainant represented by Sri. Prasanna Sharma, Advocate.
Opposite represented by Sri. Vikram Nair, Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by complainant Shivamma against opposite National Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for to direct the opposite Insurance Company to pay a sum of Rs. 1,10,000/- being the insured sum under the policy with cost.
2. The brief facts of the complainant’s case are that, her son Dharmesh was insured with opposite Insurance Company for a period of three years. He died on 15-02-08 in the traffic accident, police registered a criminal case. Thereafter she being the mother of deceased Dharmesh filed claim petition along with records, but opposite Insurance Company not paid sum assured under the policy. Hence this complaint is filed for the reliefs as noted in it.
3. The opposite Insurance Company appeared in this case through its Advocate, filed its written version by contending that, the complainant was not having a valid driving licence to drive particular vehicle involved in the accident. He obtained false and forged driving licence only to get monetary gain. Hence, it prayed for to dismiss the complaint among other grounds.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, her son Dharmesh insured his life for assured sum of Rs. 1,10,000/- with opposite Insurance Company. He died on 15-02-08 in motor vehicle accident, thereafter she filed claim petition, but opposite shown its negligence by non settling her claim and thereby opposite Insurance Company found guilty under deficiency in its service.?
2. Whether complainant is entitled for the reliefs as prayed in her complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In Negative.
(2) In Negative.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1:-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, who is noted as PW-1. The documents Ex.P-1 to Ex.P-11 are marked. On the other hand affidavit-evidence of Branch Manager of opposite Insurance Company was filed, who is noted as RW-1. Documents Ex.R-1 & Ex.R-2 are marked.
7. From the pleadings and the affidavit-evidences of the parties, we are of the view that, there are only two points to be discussed in this case. Rests of the facts are admitted.
The first point for our consideration is, whether complaint filed by the complainant is barred by limitation U/sec. 24(A)(1) of C.P. Act.
Another point for our discussion is, deceased Dharmesh was not having a valid and effective driving licence to drive the nature of the vehicle which involved in the accident on the said date, time and place and thereby there will be a violation of the terms and conditions of the policy.
8. For considering the facts of Point No-1 noted above, we have meticulously gone through the contents of complaint, her affidavit-evidence (PW-1). It is a fact that, the said accident took place on 15-02-08, documents filed by the complainant which are Ex.P-1 to Ex.P-5 are the police records regarding issuance of FIR and other related documents in the criminal case with regard to said accident. Ex.P-6 is the Insurance policy, Ex.P-7 is the Insurance card, Ex.P-8 death certificate, Ex.P-9 is the Identity card of complainant, Ex.P-10 is the copy of the registration certificate of the vehicle, Ex.P-11 is the copy of the legal notice issued by the complainant, which is undated.
9. On perusal of the facts noted above, the cause of action to file her complaint is the date of accident, because till Ex.P-11, she not requested opposite Insurance Company for to settle her claim no records filed. So the cause of action arosen for complainant is on 15-02-08, she ought to have file her consumer complaint within two years from 15-02-08. It is a mandatory Us/ec. 24(A)(1) of C.P. Act. Admittedly this complaint is filed on 28-06-11which is beyond the period of limitation of two years. She not filed any application U/sec. 24(A)(2) of C.P. Act for to condone the delay in filing her complaint. In view of the circumstances stated above, it is very much clear that, this complaint is barred by limitation. Hence the contention of Insurance Company, as the complaint is barred by limitation is correct. We have followed the principles of the rulings in this regard.
1) 2010 (2) CPR 371 (NC)
Delhi Development Authority V/s. Rajkumar Meena.
2) (2006) 1 SCC 164
Haryana Development Authority V/s. B.K. Sood.
3) III (2000) CPJ 181
Dr. Jayaprakash and others V/s. Aleem Constructions Pvt. Ltd., and anr.
4) Civil Appeal NO. 2067/02 (Supreme Court)
5) 2009 AIAR (Civil) 624.
6) 2008 ACJ 1 S.C.
14. The second ground, which is required to appreciate by us is whether deceased Dharmesh has violated the terms and conditions of the policy by driving the vehicle involved in the accident without valid driving licence to drive it. Opposite is contending that, complainant produced forged driving licence as per endorsement given by the authority vide Ex.R-2. In pursuance of the submissions made by the learned advocate for complainant and opposite and in view of the principles of the rulings reported in:
1) 2008 (2) TAC 28 (Bombay)
New India Assurance Company Ltd., V/s. Smt. Shashikalabai & ors.
2) 2011 (1) NCCR 110 Karnataka
Reliance General Insurance Company Ltd., V/s. Nazeem & Anr.
On which the learned advocate for complainant relied upon, we have gone through the principles of the rulings relied by the complainant, the first ruling shows that, the burden of proving the breach of terms and conditions of the policy on the ground vehicle was driven without valid driving licence is on the Insurance Company, as such the insurance company not proved it hence complainant is entitled for the reliefs.
15. In pursuance of the principles laid down by their lordships, in the ruling cited above, we have gone through the entire facts pleaded by the complainant and we have noticed the missing of material facts in the pleading. The complainant never stated in her complaint that, her son Dharmesh was driving the vehicle at the relevant point of time. Further, she no where stated that, he was driving the vehicle with valid driving licence to drive it. This being the facts noted out of the pleadings of the complainant, then we are of the view that, with great respect to the lordships, initial pleadings of the complainant in that regard is absent, then the question of proving the burden of not having valid licence to drive the said vehicle by deceased Dharmesh does not arise, then the question of proving the fact that, he violated the terms and conditions of the policy by driving the vehicle without valid licence is out of consideration, accordingly, we are of the view that, there is no merit in the submissions of the learned advocate for complainant, as such, we came to a conclusion that, there is no deficiency in service on the part of opposite Insurance Company. Accordingly complainant failed to prove deficiency in service by the opposite hence, she is not entitled for any of the reliefs as prayed in her complaint. Accordingly we answered Point No-1 & 2.
POINT NO.3:-
16. In view of our findings on Point Nos. 1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant against opposite is dismissed.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 23-11-11)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
