This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Smt. Akkineni Jayakumari against Opposite Party No- (1) Manager National Insurance Company Ltd., Raichur (2) Sri. M.Venkateshwar Rao R/o. Devapur Cross, Tq: Surpur, Dist: Gulbarga. The brief facts of the complaint are as under:<br /> <br /> The husband of the complainant by name Akkineni Appa Rao was employed under OP.No-2 as supervisor to look after the agricultural establishments of OP.No-2. OP.No-2 is the registered owner of Hero Honda Motor Cycle bearing Registration No. KA-33/9563 with Engine No. 2003/23803 and Chassis No. 22949 which was insured with the first OP.No-1 under policy No. 6044002/31/04/6201593 that was valid from 15-07-04 to 14-07-05.<br /> <br /> On 01-07-05 the OP.No-2 engaged the husband of the complainant for supervising his agricultural establishments and in that process he had entrusted the driving of the said motor-cycle to the husband of the complainant. During the course of his employment the husband of the complainant met with an accident and thereby sustained grievous injuries on his head and subsequently he succumbed to the injuries on 10-07-05 while taking treatment in KIME Hospital at Hyderabad. Her late husband was the consumer as he was the beneficiary of the service availed by OP.No-2 from OP.No-1 since he was driving motor-cycle in-question with the advise and approval of the OP.No-2 on the material date of accident. The complainant being the legal heir of her husband is entitled to lodge this complaint.<br /> <br /> After the death of her husband, the complainant got issued a legal notice to OP.No-1 calling upon to pay the compensation covered under the policy in-question. But OP.No-1 has unjustifiably repudiated her claim. The legal notice was got issued by the complainant through her counsel Sri. Keshava Rao and the letter of Repudiation issued by OP.No-1 through its standing counsel Sri. Ashok Konda is mis-placed and it would be produced as and when it is traced. The Repudiation of claim by OP.No-1 is un-lawful and un-justified which constitutes deficiency of service. Hence for all these reasons the complainant has sought for direction to OP.No-1 to pay the prescribed compensation of Rs.1,00,000/- with interest at 24% p.a. from 10-07-05 till realization along with cost of complaint.<br /> <br /> 2. OP.No-1 has filed counter/written version contending that as submitted by complainant deceased Apparao, the husband of the complainant was working under OP.No-2 to look-after his agricultural lands and OP.No-2 had handed over the motor-cycle No. KA-33/9563 to him and he met with accident and died in the course of his employment under OP.No-2. Hence this case is not maintainable before this Forum for want of jurisdiction.<br /> <br /> Deceased Apparao was not the consumer of this OP.No-1 and the beneficiary of service availed by OP.No-2 does not come under the purview of this Forum. Hence there is no deficiency in service or negligence on the part of this OP.No-1.<br /> <br /> Without prejudice to the case it is submitted that deceased Apparao was not having valid driving licence to drive the motor cycle and the OP. NO-1 has violated the policy conditions by allowing a person to drive the motor cycle who was not having valid driving licence. Hence for all these reasons OP.No-1 has sought for dismissal of the complaint.<br /> <br /> 3. OP.No-2 has filed his own written version contending that on bare reading of the complaint and the facts & circumstances of the case, this Forum has no jurisdiction to entertain and try this complaint. <br /> <br /> It is admitted that deceased Akkineni Apparao was employed under this OP.No-2 for supervising and to look-after his agricultural works & affairs. It is also true that Hero-Honda motorcycle bearing Registration No. KA-33/9563 belonging to this OP.No-2 was insured with OP No-1 which was valid upto 14-07-05 and it is renewed for further period. On 01-07-05 the said A. Apparao who was riding the said motor-cycle along with one Pillian rider Venkateshwar Rao met with an accident due to rash and negligent driving by the deceased A.Apparao and died due to injuries sustained by his rash & negligent driving and so this OP.No-2 is not responsible and liable for any compensation. <br /> The complainant has not declared that she has not filed any claim petition before any court or MACT for compensation except the present complaint. There is no violation of any insurance policy in-respect of the above said vehicle in-question by this OP.No-2. Hence for all these reasons he has sought for dismissal of the complaint against this OP.No-2.<br /> <br /> 4. During the course of enquiry the complainant has filed her sworn affidavit by way of examination-in-chief and has got marked as many as (12) documents at Ex.P-1 to P-12. In rebuttal the Administrative Officer of OP.No-1 has filed sworn affidavit by way of examination-in-chief but has not produced & got marked any documents. The OP.No-2 in-spite of grant of sufficient time has not adduced evidence by filing affidavit-evidence and documents. Even he has not paid the adjournment cost of Rs. 200/- saddled for delayed filing of his written version and for adducing evidence. Hence OP.No-2 side has taken as closed.<br /> <br /> 5. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:<br /> <br /> 1. Whether the complainant proves deficiency of service by the Respondent in not settling her claim, as alleged.?<br /> <br /> 2. Whether the complainant is entitled for the reliefs sought <br /> for?<br /> <br /> 6. Our finding on the above points are as under:-<br /> <br /> 1. In the affirmative. 2. As per final order for the following.<br /> <br /> REASONS<br /> <br /> POINT NO.1:-<br /> <br /> 7. There is no dispute that the Hero-Honda Motor Cycle bearing Registration No. KA-33/9563 belonging to OP.No-2 was insured with OP.NO-1 under the policy which was valid from 15-07-04 to 14-07-05. It is also not in dispute that late Akkineni Apparao, the husband of the complainant, was employed under OP.No-2 for supervising and to look-after agricultural works & affairs and for which the deceased was entrusted with Hero Honda Motor Cycle in-question belonging to OP.No-2. It is also not in dispute that on 01-07-05 said deceased Apparao met with an accident while riding motor-cycle during the course of employment and succumbed to the injuries. <br /> The complainant in para-5 of her complaint has contended that after the death of her husband she got issued legal notice to the OP.No-1 through her counsel Sri. Keshavarao, Advocate for payment of compensation covered under the policy in-question. OP.No-1 through its standing counsel Sri. Ashok Konda Advocate repudiated her claim and this Repudiation letter is mis-placed in the office of her counsel Sri. Keshava Rao and in this regard the complainant has filed affidavit of Sri. Keshavarao, Advocate. Her Advocate Sri. Keshava Rao in his affidavit has sworn to the fact that he had issued legal notice as per the instruction of the complainant Smt. A. Jayakumari, to the Manager of OP.NO-1 Insurance Company Raichur calling upon to pay compensation as provided under the policy. A reply was issued by the Insurance Company (OP.No-1) through its counsel Sri. Ahoka Konda, Advocate repudiating the claim of the complainant and the same was mis-placed in his office. As seen above OP.No-1 has not produced and got marked any documents especially the Repudiation Letter. However in the written version at para-5 it is averred that the OP.NO-1 has answered to the (letter of) complainant suitably. Further in Para-6, the OP.No-1 has contended that the complainant has claimed compensation of Rs. 1,00,000/- with interest at 24% p.a. but she is not entitled for the same as the deceased was not at all consumer of OP.No-1. So from Para-5 & 6 of the written version, it shows that the OP.NO-1 has Repudiated the claim of the complainant as stated in para-5 of the complaint. The question that arise for our consideration is whether the deceased A.Apparao by was consumer of OP.No-1 under the policy so as to claim the policy amount by his widow-complainant.<br /> <br /> 8. The complainant has produced in all (12) documents including the Certificate of Insurance Policy No. 604002/31/04/6201593 at Ex.P-12 which is material for our purpose. This Ex.P-12 shows that the vehicle in-question was insured by OP.No-2 with OP.No-1 Company and the schedule of premium shows as under:<br /> B: T. P - BASIC 160.00<br /> Compulsory P.A. to Owner- 50.00<br /> Driver<br /> Amount 1,00,000/-. <br /> <br /> 9. The learned counsel for the OP.No-1 argued that deceased A.Apparao was not the consumer of OP.No-1-Company so the complainant, the wife of deceased Apparao, is not entitled for the claim amount. As against this learned counsel for the complainant argued that the Schedule of premium in the certificate of insurance at Ex.P-12 shows Insurance as ‘owner-driver’, and the ‘dash’ shown in between the two words ‘Owner’ ‘Driver’ leading to ambiguity because generally Owner of the vehicle cannot also be a ‘Driver’ of the vehicle and a ‘Driver’ cannot always be a ‘Owner’ of the vehicle. So the words ‘Owner’ & ‘Driver’ appearing in the Schedule of premium at Ex.P.12 are distinct and separate and they cannot be used as clubbed word for a single person. Under such circumstances interpretation of ambiguity which is beneficial to the insured should be accepted. So late A.Apparao was the driver of vehicle insured and thereby he was consumer and so the complainant being his wife is entitled for the claim amount. In support of his arguments the learned counsel has relied upon the decision of Division Bench of Hon’ble Supreme Court reported in 2004 AIR SCW 1140 para-6 interalia which reads as under:<br /> …………..“It is also settled position in law that if there is any ambiguity or a term is capable of two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken, namely, to cover the risk on the happening of certain event. Although there is no ambiguity in the expression “impact”, even otherwise applying the rule of contra proferentem, the use of the word “impact” in Clause 5 in the instant policy must be construed against the appellant. Where the words of a document are ambiguous, they shall be construed against the party who prepared the document. This rule applies to contracts of insurance and Clause 5 of the insurance policy even after reading the entire policy in the present case should be construed against the insurer. A Constitution Bench of this Court in General Assurance Society Ltd. V. Chadumull Jain and another, (1966) (3) SCR 500) (AIR 1966 SC 1644) has expressed that “in a contract of insurance, there is requirement of uberrima fides, i.e, good faith on the part of the assured and the contract is likely to be construed contra proferentem i.e. against the company in case of ambiguity or doubt.”<br /> <br /> 10. From plain reading of above decision of the Hon’ble S.C. the ambiguity or possibility of two interpretations the one which is beneficial to the insured should be accepted. In the instant case admittedly late A.Apparao being the driver of the motor- cycle in-question was riding the same along with pillian rider and met with an accident and succumbed to the injuries. As seen above a close perusal of premium schedule in the Insurance Certificate at Ex.P-12 shows ambiguity regarding the insurance of ‘Owner cum Driver’ of the vehicle or ‘Driver’ of the vehicle. The OP.No-2 who has insured the vehicle in-question as owner as per insurance certificate at Ex.P-12 has not specifically objected to the claim of complainant. So the ambiguity giving two possible interpretations, the one in favour of driver is to be accepted and hence we find substance in the arguments advanced by the learned counsel for the complainant. In-view of this, the Repudiation of claim by the OP.No-1 Insurance Company amounts to deficiency in service especially when the owner of the vehicle insured has not claimed or filed objection to the claim of the complainant and these factors constitutes deficiency of service by the OP.No-1 in settling the claim of the complainant and so Point NO-1 is answered in the affirmative.<br /> <br /> POINT NO:-2<br /> <br /> 11. The complainant has sought for direction to OP.No-1 to pay the prescribed compensation of Rs. 1,00,000/- with interest at 24% p.a. from 10-07-05 the date of death of her husband till realization. The complainant has produced Medical Receipts and Prescriptions at Ex.P-8 to P-11 showing the medical treatment expenses with Ambulance Services approximately Rs. 72,000/-. In-view of our discussion and finding on Point NO-1, the complainant is entitled for the policy amount of Rs. 1,00,000/- as compensation. The complainant has sought for awarding interest at 24% p.a. Having regard to the facts and circumstances of the case as discussed above, the complainant is entitled for compensation of Rs. 1,00,000/- along with a global compensation of Rs. 20,000/- towards interest etc., in this view of the matter we pass the following order:<br /> <br /> ORDER<br /> <br /> The complaint of the complainant is allowed in part.<br /> <br /> The OP.No-1 Insurance Company shall pay Rs. 1,00,000/- along with a global compensation of Rs. 20,000/- to the complainant.<br /> <br /> The OP.No-1 shall comply this order within six weeks from the date of receipt of copy of this order.<br /> <br /> Office to furnish certified copy of this order to both the parties forth with free of cost.<br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 06-03-07)<br /> <br /> <br /> Sd/-<br /> Sri. N.H. Savalagi,<br /> President,<br /> District Forum-Raichur.<br /> <br /> Sd/-<br /> Sri. Pampannagouda, <br /> Member<br /> District Forum-Raichur.<br /> <br /> <br /> On leave. <br /> Smt.Kavita Patil, <br /> Member. <br /> District Forum-Raichur<br />