Karnataka

Bidar

CC/28/2014

SOMNATH BHANGURE S/O MAHADEVAPPA - Complainant(s)

Versus

THE MANAGER NATIONAL INSURENCE COMPANY LTD. BIDAR - Opp.Party(s)

SMT. PADMAJA.V

25 Jun 2016

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::

 

 

                                                                                                       C.C.No. 28/2014

 

                                                                                        Date of filing : 15/04/2014

 

                                                                                   Date of disposal : 25/06/2016

 

 

P R E S E N T:-                 (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                         (2) Shri. Shankrappa (Halipurgi),

                                                                      B.A., LL.B.,

                                                                                  Member.

 

                                               

COMPLAINANT:-            Somnath Bhangure, S/o Mahadeveppa,                                                         

                                         Age: about 26 years, R/o H.No.19-12-370, Naubad,

                                       Tq & Dist.Bidar.

 

 

                                      (By Smt. Padmaja Vishwakarma, Advocate)

 

 

 

                                                      VERSUS

 

 

OPPONENT/S   :-            The Branch Manager,

                                      National Insurance Company Ltd.,

                                      DD X, Hero Moto Corp. Vertical 101-106,

                                      BMC House, Connaughat palace,New Delhi-110001,

                                      Represented by its Branch Manager,

                                         National Insurance Company Ltd.,

                                      Near Basaweshwar Chowck, Bidar.

 

 

 

 

                                     ( By Shri. Prakash V.M., Advocate)

 

                                     

                                            ::   J UD G M E N T  : :

 

 

By Shri. Jagannath Prasad Udgata, President.

 

 

             The present complaint has been filed u/s. 12 of the C.P.Act., 1986, alleging deficiency of service against the O.P. and the gist of the case is as follows.

2.           That the complainant Sri. Somnath Bhangure, s/o Mahadevappa was the owner of a Motor Cycle bearing no. KA-38 Q 2989 and the same vehicle was insured by the O.P. vide cover note bearing no.39010231136200090995 and it’s date of validity was from 09-04-0213 to 08-04-2014.  On 14-06-2013, at about 9-30 p.m. he along with his paternal uncle by name Basawaraj, s/o Manikappa holding a valid D.L. was proceeding to their agriculture field along Naubad-Kolar road and  when they were near the Dental College on the same road, a stray dog came suddenly on the road.  The complainant’s uncle Basawaraj, driving the vehicle at that time had to apply sudden break, for which both of them fell down.  The pillion rider/complainant as a result of the fall sustained injuries like abrasions over the forehead of 2”x1”, Fracture of shaft of (R) tibia and fibula.   He was first treated by PANDE NURSING HOME,K.E.B road, Bidar and was referred to Solapur to a major hospital.  On further investigation at Yashodhara Super Speciality Hospital (P) Ltd., it was later found, he had also sustained fractures at lower end of right femur and intercondylar.   In the said hospital, he was treated as inpatient   from        15-06-2013 to 21-06-2013, and thereafter was following the treatments regularly, in spite of which he has sustained permanent disability.  One of his relatives, Shivraj had filed a police complaint and crime no.147/2013 u/s.279, 337 has been registered by the jurisdictional Bidar Traffic Police, in which charge sheet has  been filed. 

3.         The complainant alleges that, the policy issued by the O.P. evidences that, a sum of Rs. 50/- was received from him interalia towards the personal accident cover for owner driver, and in spite of he incurring permanent disability to the extent of 54% after spending more than Rs.2,00,000/- for treatment with due diligence and care, the O.P. insurance company has refused to pay him the scheduled accident cover amount of Rs.1,00,000/- wherefore he is before this Forum.

4.            The O.P./Insurance Company after notice from this Forum had put up appearance through, their counsel and has filed detail written version.  In the version the O.P. has admitted the fact of accident but has denied the liability under the clause P.A. cover to owner driver, taking a defence that, the premium of Rs. 50/- was collected under that head towards coverage of owner/cum Driver, and since the vehicle was being driven by a person other than the owner, the insured would not be liable to reimburse him anything.  Further a plea has been taken that, the policy was not of a medical insurance, and might be the insured spent huge sum for the treatment since he is alive, the O.P. is not liable to pay him anything.

5.          On scrutiny of the documents filed by the parties, we find in the reply to the legal notice at Ex.P.12, the O.P. has claimed to have paid a sum of Rs. 4,300/- towards damages to the motor cycle, but find no such mention in the version or the evidence affidavit or the written arguments filed.

6.       At one point of time, the O.P. had filed interrogatories and the complainant side had filed an effective reply.  But from this exercise, no new fact or circumstances have emerged.

7.         Both sides have submitted evidence affidavit and written arguments, which are rhetoric’s  of their claims and counterclaims.

8.          The documents relied upon by the parties have been listed at the end of this order.

9.          Considering the juxtaposed stands taken by the parties the following points arise for our consideration.

1.  Does the complainant prove that, he has an actionable claim against the O.P ?

 

2.  Does the O.P. prove that, it has satisfied the just and legal claim of the insured/complainant as per the contract of insurance?

 

 

 

3. What orders ?

 

 

 

 

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

             1.   In the affirmative.

             2.   In the negative.

             3.  As per the final orders due to the following:

 

 

                                             

 

 

:: R E A S O N S : :

 

 

11.         The answers to the questions (a) & (b) are interwoven together and hence we propose to deal with them compositely.  Herein, the fact of the accident or the vehicle under reference duly insured by the O.P. is not in dispute.  Even, the O.P/Insurance Company has paid certain sums towards the damages sustained by the vehicle.

12.              The big question veers  around the terms of the Insurance policy issued in favour of the complainant/Insured by the O.P/Insurer.  A correct/equitable/justifiable interpretation of the clauses of the policy is the need of the hour.  In the instant case, both parties, the claimant vide Ex.P.10 and the O.P. vide Ex.R.1 have submitted the relevant insurance policy for perusal of this Court.  Going a further step ahead, the O.P. had also annexed a printed literature captioned as  “Two Wheeler Package”  policy  the Ex.R.1, which clinches the issue as a whole.

13.           In the front page of both Ex.P.10 and Ex.R.1 at sub head 8 we observe, it is divided in two parts, portion A, deals with own damage computation (Section I ) in Rs.  While portion B, deals with liability premium computation (Section II) in Rs.

14.              Presently, we are not concerned with portion A.  Analysing portion B we find, along with basic premium including premium for TPPD of Rs. 422.00 an additional compulsory PA cover (Owner Driver) of Rs. 50/- has been collected by the Insurance Company.  Now, the O.P./Insurance Company claims the said premium was collected for owner/cum Driver and as the vehicle was not being driven by the owner, they are not liable to pay the insured amount.  Significant to note, there is no mention of owner/cum driver under this sub-sub-head and the defence of the O.P./Insurance Co. is ridiculous per se.  It is worthwhile to mention here that, there is no law in this Country, which mandates the owner of a motor vehicle to be a licensed driver or a licensed driver to be the owner.  Had it been so every Hon’ble successive President of India would have been required to be a holder of fighter pilot licence.  Battle Tank driving licence, Armoured Carrier licence and so on, their excellencies being the supreme commander of Armed forces under the constitution.  But where is such precedence?   Yielding to our anxious thoughts, we have no hesitation to hold that, the correct interpretation of the contract should be “ Owner and/ or Driver “ under this sub-sub-clause and not the “ Owner cum Driver” as being presently canvassed by the Insurance Company.  Since in page 1 of the documents Ex.P.10 and Ex.R.1, the DRIVER-has been defined as “ any person including insured: provided that a person driving holds an effective driving licence at the time of accident and is not disqualified for holding or obtaining such a licence”.

 15.          Further, we delve  into the 2^nd page of the literature (printed) filed along with Ex.R.1 by the O.P./Insurance company.  In Section III, after a corollary, a table is provided, which reads as follows:

Provided always that:

Sl.no.	Details of injury	Scale of compensation
1.	Death      :	100%
2.	Loss of two Limbs or sight of two eyes or one limb & sight of one eye :	100%
3.	Loss of one eye or sight of one eye :	50%
4.	Permanent total disablement From injuries other than named above :	100%

 

16.          In the instant case, vie Ex.P-45, a competent orthopaedic specialist has certified that, there is a permanent disability of lower limb of the victim including mobility & standing component and the extra points is 54% to the part, which has gone unchallenged by the O.P./Insurance Company, coaxing us to accept the permanent disability of the accident victim/insured and hence we hold that, the answers to point no.1 in affirmative and point no.2 in the negative.  With heavy heart, we deprecate the in-human approach of  the O.P./Insurance Co. and hold that, despite the claim of the complainant of huge expenditures incurred by him, the O.P. must pay the insured sum due to his permanent disability and pass the following:

: :   ORDER : :

 

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

 

1.   The O.P. is hereby directed to pay a sum of Rs. 1,00,000/-

Under the sub-sub-head ( as in Ex.R.1) of P.A. cover to owner driver along with an interest of 12% p.a. from the date of accident till the date of realisation to the claimant.

 

2.   The O.P. to further pay a sum of Rs. 20,000/- towards

Compensation to the complainant for deprivation of just dues at proper time, when the claim was made, together with a litigation expenses of Rs.5,000/-.

 

3.  A  copy of this order be transmitted to the I.R.D.A. together

With a copy of Ex.P.45, Ex.P.12 and Ex.R.1 to consider the malpraxis of the O.P./Insurance Co.

 

4. We are aware that, the insurers as in the instant cases ( without

Naming any entity) are in the habit of taking recourse to unethical practices of similar nature affecting several consumers and hence acting under Section 14( hb) of the C.P.Act, 1986, we direct that, the O.P. deposits a sum of Rs. 5,00,000/- in this Forum under the head of “ Consumer Welfare Fund” without demur.

 

5.  Office is directed to transmit a copy of this order to Asst.

Director . Dept of Information & Publicity, near Railway. Station, Bidar within seven days, for wide circulation in all the news paper in circulation in the state/Nation in English and Kannada language and also electronic media for consumer awareness.  It is made clear that, should the public officer fails to do so, it would be construed as defying the lawful authority of a Court of law and the matter would be dealt under provisions of the appropriate law.  The time limit  for circulation is fixed for a week from the date of receipt of the order (Emphasised).

 

 

            (f )  Four weeks time is granted to comply this order.

 

 

 

 

   ( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 25^th   day of June-2016 )

 

 

 

Sri. Shankrappa H.                                          Sri. Jagannath Prasad                  

        Member                                                                   President

 

Documents filed by the complainant.

 

1. Ex.P.1- FIR in crime no.146 /13 of Bidar Traffic Police.
2. Ex.P.2- Charge sheet.
3. Ex.P.3- Medicallegal  certified  issued  by Pande Nursing Home
4. Ex.P.4- Spot Mahazar of scene of accident.
5. Ex.P.5- Mahazar on the vehicle between accident.
6. Ex.P.6-Statement of witness of Prakash.
7. Ex.P.7- Statement of witness of Somanath
8. Ex.P.8- Injury certificate issued by Pande Nursing Home
9. Ex.P.9- IMV Report.
10. Ex.P.10-Certificate of Insurance.
11. Ex.P.11-Legal Notice from the complainant’s Advocate.
12. Ex.P.12-Reply notice from the complainant’s Advocate.
13. Ex.P.13 to P.36 Medical bills.
14. Ex.P.37-Discharge summary of Yashodhara  Super Speciality Hospital Ltd., Solapur.
15. Ex.P.38 Certificate of Yashodhara  Super Speciality Hospital Ltd., Solapur.,Dt.15/06/2013.
16. Ex.P.39 to P.42 Bills of Yashodhara Hospital for Medical Diagnosis
17. Ex.P.43-X-Ray report.
18. Ex.P.44-Discharge card of Sanjeevani Multispeciality Hospital.
19. Ex.P.45-Discharge certificate issued by Bulgundi Ortho Care,Dt.10-12-2014.
20. Ex.P.46-Bills of Sanjeevani Hospital.
21. Ex.P.47 to 49- Medicine Bills.
22. Ex.P.50- Bill of Sanjeevini Pathology Lab.
23. Ex.P.51- Another X-Ray Plate of Bulgundi Ortho Care.
24. Ex.P.52-Copy of R.C. Book of the Motor Cycle bg.no.K.A.38 Q 2989.
25. Ex.P.53- Copy of Driving Licence of Driver Sri. Basawaraj driving the vehicle at the time of accident.

 

 

Documents filed by the Opponent.

 

1. Ex.R.1-Attested copy of Insurance Policy together with literature.

 

 

 

Sri. Shankrappa H.                                          Sri. Jagannath Prasad                  

        Member                                                                   President