JUDGMENT

            The complainant has filed this complaint u/sec. 12 of the Consumer Protection Act – 1986 against the Op alleging deficiency in service in not settling the claim amount of Rs.2,00,000/-. Hence, prays for relief to settle the policy claim of Rs.2,00,000/- along with compensation amount of Rs.7,50,000/- and Rs.1,00,000/- towards physical and mental agony, and Rs.1,00,000/- for deficiency in service and Rs.20,000/- for miscellaneous and litigation expenses.

             Brief averments of the Complaint are;

            2.  That, the complainant No.1 is the wife of the deceased Gyanappa and the complainant No.2 to 4 are his children. The complainant No.5 is the mother of the deceased Gyanappa. That the complainant No.1 further alleged that the husband deceased Gyanappa S/o Ramappa Gaddi R/o Kalkabandi was the owner and driver of the lorry bearing No.KA-05/M.B. 5508. During his life time, he had made a policy in the branch of the OP-Company. The Policy number is 10003/31/13/575361. The total value of the policy is Rs.2,00,000/-. This policy pertains to the accidental benefit of the owners cum driver. Apart from this, the compensation amount of Rs.7,50,000/- is duly mentioned in this policy.

            The complainant No.1 further alleged that on dated; 07.04.2013 the deceased husband of the complainant No.1 at about 4.30 when he was on duty and when he was loading the paddy near Karatagi L.V.T. Rice Mill met with an accident. After the Accident, he was taken to the Karatagi Government Hospital and received first aid treatment and on the advice of the doctors, he was shifted to Bellary VIMS Hospital for further treatments. On 09.04.2013 he died without recovering. The deceased was the owner and driver of the lorry. During the accident period, the said policy was still in existence and the deceased Gyanappa was having valid driving licence at the time of accident. After the death of her husband, the complainant went to the office of the OP so many times and asked for the compensation to be given. But, the OP for one reason or other reason went on delaying it and did not give the compensation amount.

            The complainant further alleged that the complainant on 07.05.2015, a legal notice was issued to the OP-Company through her advocate and the OP did not reply to the notice nor gave the compensation amount.

            The complainant further alleged that the complainant No.1’s husband was the driver and owner of the lorry and he used to earn Rs.2,500/- per day and they were leading their life’s with that amount. At the time of the death of deceased Gyanappa, he was healthy. There is no income to the complainant‘s facility after the death of the deceased Gyanappa. Hence, prays for the policy amount of Rs.2,00,000/-  along with compensation amount of Rs.7,50,000/- and Rs.1,00,000/- towards physical and mental agony, and Rs.1,00,000/- towards deficiency in service and Rs.20,000/- for miscellaneous and litigation expenses as prayed above.

            3.         The Forum after admitting the complaint, a notice was issued to OP and the notice is served upon the OP. The OP appeared before the Forum through their counsel and filed Vakalathnama and main objections/Written version to the main petition.

            4.         The objection of the OP are as under:

            That the complaint filed by the complainant against the OP is false, frivolous and vexatious and for away from the truth and the same is not maintainable either in law or on facts. Hence, the same is fit to be dismissed.

That the OP further submitted that the contents of Para No.1 of the petition are true and correct and hence they are admitted. It is true that the complainant No.1 is the wife of Gyanappa and complainant No.2 to 4 are their children and complainant No.5 is the mother of deceased Gyanappa.

            That the OP further submits that the contents of Para No.3 of the complaint are true and correct except the fact that, there is a separate amount of Rs.7,50,000/- in the policy of the lorry bearing No.KA-05/MB-5508. It is true that, the husband of complainant by name Late Gyanappa was the registered owner of the lorry bearing No.KA-05/MB-5508 and he has insured his lorry with OP-Company and its policy number is 10003/31/13/575361. Hence, the complainants be put to strict proof of the same.

            That the OP further submits that the contents of Para No.4 of the complaint are partly within the knowledge of complainants and partly false and baseless and hence, they are denied. It is well within the knowledge of the complainant that, on 07.04.2013 at about 4.30 evening the husband of complainant NO.1 Late Gyanappa when he was loading something in LVT Rice Mill of the Karatagi, they has occurred an accident and immediately thereafter he has been shifted to Karatagi  Government Hospital and for better treatment he has shifted to VIMS Bellary. But, the said Gyanappa died on 09.04.2013. It is false to state that after the death of Gyanappa the complainants approached the OP and requested to provide compensation. It is further false that, the OP Company has postponed the same. Hence, the complainants be put to strict proof of the same. As a matter of fact, the complainants have not informed about the occurrence of the accident and fact of death to the OP Company. It is the mandatory duty to inform about the claim immediately after the incident. But, the complainants have not informed about the occurrence of incident and death of Gyanappa.

            That the OP further submits that the contents of Para No.5 of the complaint are false and baseless and hence, they are denied. Hence, the complainants be put to strict proof of the same.

            That the OP further submits that the contents of Para No.6 of the complaint are false and baseless and hence, they are denied. It is false to state that the husband of complainant No.1 Late Gyanappa was earning Rs.2,500/- per day and he is leading his life and maintaining the complainants. It is further false that, at the time of incident, the said Gyanappa was hale and healthy and the family of the complainants has no source of income It is further false that it is very difficult to lead and life of complainants. Hence, the complainants be put to strict proof of the same.

            That the OP further submits that the contents of Para NO.7 are false and baseless and hence, they are denied. There is no cause of action for the complainants to file the complainant. Hence, the complainants be put to strict proof of the same.

               That the OP further submits that it is true that the husband of complainant No.1 by name Gyanappa S/o Ramappa Gaddi R/o Kalakabandi was the owner of the lorry bearing No.KA-05/MB-5508 and he has insured his vehicle bearing No.KA-05/MB-5508 with OP and its policy number is 10003/31/13/575361.

            That the OP further submits that it is well within knowledge of the complainants that the said Gyanappa sustained injuries in an incident dated: 07.04.2013 at LVT Rice Mill at Karatagi at about 4.30  PM and he died due to the said incident at VIMS Bellary.

            That the OP further submits that this OP submits that it is the mandatory duty of the complainants to intimate the fact of accident or incident and the death of Gyanappa to the OP Company immediately after the incident or death. But, the complainants have not informed the fact of the death and accident or incident to the OP Company. Hence, there is a gross of incident to the OP Company Hence, the OP is not liable to pay the compensation to the complainants and hence prays for the dismissal of the complaint.

5.   On the basis of the above pleadings, the following points have been framed;

POINTS

1.  Whether the complainant proves that there is deficiency in service in not settling the insurance amount after the death of her husband?

2. Whether the complainant is entitled for any relief sought for?

3. What order?

      6.     To prove the case of the complainants, the complainant NO.1 herself examined as PW-1 and she got marked documents as per EX A1 to EX A13 and closed their side evidence. The OP himself examined as RW1 and got marked the documents as per EX B1 and EX B2 and closed their side evidence.

7.  Our findings on the above points are as under:

Point No. 1 :   Affirmative

Point No. 2 :   Affirmative

                  Point No. 3 : As per final Order for the following

REASONS

8.  POINT No. 1 and 2:  As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence, documents and arguments.

            9.  On perusal of the pleadings, evidence, coupled with documents of respective parties on record.  It is the case of the complainants alleging deficiency in service in not settling the claim of the policy amount of Rs.2,00,000/-. There is no dispute regarding that the complainant No.1 husband Sri. Gyanappa had obtained a policy by name Shriram Suraksha with a policy No.10003/31/13/575361 which commences on 27.01.2013 to midnight 26.01.2014 with a premium amount of Rs.27,999/- per annum and the personal accident covered is Rs.2,00,000/-. There is no dispute that the premium amount is not paid. Being a beneficiary in the policy, the complainants approached and claimed for the policy amount long with other compensation amount of Rs.7,50,000/- and orally informed about the claim amount. But, the OP has not settled the claim. Hence, the complainant alleges deficiency in service.

            10.       To prove the case of the complainants, the PW-1 has reiterated the complainant averments in her examination in Chief and in support of her case. She has produced the documents pertains to the accident case where FIR, Charge Sheet and other necessary documents pertaining to the case which is marked as EX A1 to EX A5. There is no dispute also that the deceased Gyanappa had died due to the accident. EX A1 to EX A5 reveals that the deceased Gyanappa had died due to the accident when he was loading the paddy in LVT Rice Mill of Karatagi. EX A7 to EX A9 reveals that at the time of the accident, the deceased Gyanappa was having a valid driving licence and also the goods carriage permit along with the R.C. showing that he was the owner and driver of the said lorry bearing No.KA-05/MB 5508.

            11.       She has further altered that a legal notice was sent to the Manager regarding the claim amount and the said legal notice is marked as EX A10 and its acknowledgement as EX A11. On perusal of said EX A10 it clearly reveals that the said notice is sent for the OP only after the lapse of 2 years regarding the claim amount. The PW-1 has nowhere mentioned in his complaint nor affidavit that the complainant has submitted the claim repudiation form along with necessary documents to the OP-Company. It is admitted by the complainant that she has went to the office and informed the OP and asked for the claim amount.

            12.       Further, with respect to claim repudiation, the PW-1 who is defendant as per this specific defence set up in this written version that it is the mandatory duty of the complainant to intimate the fact of the accident and the death of the Gyanappa to the OP Insurance company immediately after the incident or death. But, the complainants have not informed the fact of the death and accident or incident to the OP-Company. Hence, there is a gross negligence on the part of the complainant. EX. A10 clearly shows that after the lapse of 2 years though a legal notice is insured by the Advocate of the complainant. Earlier to show that they have intimated the OP regarding jthe death, there is no documents to show that the complainants have informed their in _________ and they have rejected the claim. There is no any specific mentioning about the particular date of claiming the policy claim amount. This itself clearly goes to show that the said complainant has not at all intimated inspite having knowledge of the policy to the OP-Company believing her the Version with respect to that they have intimated them orally and went to the Office of the OP-Company many times is  not justifiable one. The PW-1 has also averred that no any separate claim repudiation form is submitted by them and they have orally told the OP. But to substantiate the informing the claim repudiation to the OP, when there is no cogent documents have been produced by the said complainant, the question of considering that they have intimated orally is not believable.

            13.       Further during the course of arguments advanced by the counsel for the OP, they have much argued that the present suit is also not maintainable in view of jurisdiction. On that ground also the complainant is not maintainable and in that context, they have argued and the legal notice is issued at Jaipur, Rajasthan and the legal notice is issued to Bangalore Bank without impleading the main branch. When the policy was issued and to substantiate the said contention, the OPs have produced the copy of the policy. The said policy is marked as EX B1. Therefore, as perusal of EX B1 clearly shows that the said policy is issued in Jaipur, Rajasthan Office is not made as parties and the notice is issued to the Bangalore Branch. The main cause of action arises where the policy is issued i.e. the Jaipur, Rajasthan Branch, but the complainant failed to implead them as one of the OP in the complaint. The counsel for the complainant has argued that it is sufficient of notice is issued in any branch office. It is crystal clear that when a legal notice is issued the cause of action does not arise, but the cause of action aroses where the policy is issued. Therefore, the contention taken by the complainant that in any branch notice can be issued or claim can be taken is not justifiable one. Therefore, the question of considering that the present complaint is barred by jurisdiction, because when the cause of action arose to file the present complaint and from the date of action is when the policy was issued at Jaipur, Rajasthan that not when the legal notice was issued. The complainant ought to have liable to implead the OP-Branch, where the policy was issued and the jurisdiction is not proper.

            14.       On the contrary, as per the oral evidence coupled with documentary evidence, the complainant have failed to prove that there is deficiency in service on part of OP in not settling the policy claim and the said fact has been clearly discloses in EX A10 and EX B1, which are the legal notice and the policy issued which have been already discussed supra. Hence, in the light of above observations, the complainants have failed to prove the deficiency in service on part of OP in not settling the claim amount. Hence, in the light of above observations, we constrained to hold Point No.1 and 2 in the negative.

15.  POINT No.3 :- In the light of observations made by us on point No.1 and 2, since the complainant has filed this complaint for the deficiency in service on part of OP in not settling the claim amount with the respect to the policy insured. In the light of observations made by us, while answering the Point No.1 and 2 in negative. Accordingly, we constrained to hold Point No.3 in the negative.

16. POINT NO.4 :   Hence in the result, we proceed to pass the following: 

ORDER

1. The complaint filed by the complainant is hereby dismissed
2. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by her, typescript, corrected by me and then pronounced in the Open Forum on 05^th day of March 2016.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

List of Documents Exhibited for the OPs.

Witnesses examined for the Complainant / Respondent.