D.O.F:09/07/2021
D.O.O:18/01/2024
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.122/2021
Dated this, the 18th day of January 2023
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SMT.BEENA.K.G : MEMBER
Laxman Rai, aged 54 years
Son of Narayana Rai,
Represented by his wife next friend
Neelakshi L. Rai
residing at Peral House,
Mogral Post, Kumbla Via,
Manjeshwar Taluk and Kasaragod District.
(Adv: Sadananda Kamath K & Rahuldas K.) : Complainant
And
The Manager,
United India Insurance Company Ltd,
Tiger Hills, Post Box No. 19,
Municipal Office Road, Kasaragod – 671121. : Opposite Party
(Adv: K. Vinod Kumar)
ORDER
SMT.BEENA.K.G : MEMBER
The brief facts of the case is that, the complainant is an autorickshaw driver by profession. He is eking his livelihood by plying his auto rickshaw bearing registration No. KL-14J-9120. The above said autorickshaw was insured with opposite party. The complainant paid premium of Rs.100/- towards personal accident benefit and as per the policy contract the owner who paid Rs.100/- towards personal accident benefit if dies or sustain permanent disability, is entitled to get atleast 2 lakhs rupees. On 14/05/2016, evening at about 5.30 PM, when the complainant was returning from Bombrana after dropping a passenger towards Kumbla in Bombrana, when he reached at a place called Mali, thunder storm with heavy rain lashed at the road. Heavy rain and storm, obviously blocked his front vision and his vehicle is about to hit with a cow, which suddenly jumped to the road from the nearby bushes. When he tried to control his vehicle which is capsized by moving and hit the nearby wall as a result of the accident, the complainant sustained grievous injuries to his head and spinal cord and other parts of the body. The local residents who heard this sound of accident, rushed to the spot and shifted the complainant to the nearby District Co-Operative Hospital, Kumbla and from there after giving first aid, referred to the Super Specialty Hospital nearby. Thus, he was admitted and treated at A.J. Hospital and Research Centre, Mangalore from 14/05/2016 to 15/07/2016. Due to the impact of injuries, he became Tetraplegia (Complete Paralysis of all four limbs, ie, both hands and legs). He has been completely bed ridden. The family managed his treatment expenses by availing hand loans and disposing off whichever valuable they had but the total expenses was Rs. 11,00,000/-. The complainant was aged only 54 years at the time of accident. His family comprising of wife, two school going children and an aged mother. He was the sole bread winner of the entire family. A claim has been filed on behalf of the complainant before opposite party which was rejected by the company. Thereafter the wife of the complainant caused to send a registered lawyer notice dated 01/10/2019 to opposite party to pay Rs. 20,00,000/- to the complainant as per policy agreement, as the complainant sustained 100% disability. The opposite party sent a reply dated 18/10/2019 admitting the policy and personal injury cover but stoutly rejecting the claim that the accident was not informed to them in time. The complainant alleges that the conduct and attitude of the opposite party insurance company is a clear deficiency of service and unfair trade practice. Due to the rejection of the claim, the complainant and his family undergone severe mental stress and sustained damages to the tune of Rs. 5,00,000/- only. The cause of action for the complaint arose on and since 14/05/2016 (date of accident), 01/10/2019 (date of lawyer notice), 18/10/2019 (date of reply notice), In Koipady Village within the jurisdiction of this Commission. Therefore, the complainant is seeking a direction against opposite party to pay a sum of Rs. 2,00,000/- to the complainant towards the minimum compensation generated under the insurance policy with medical bills, loss of earning etc. along with Rs.5,00,000/- towards deficiency of service, unfair trade practice, mental agony and stress.
The opposite party filed version stating that the complaint is false and not maintainable at law or facts. The averments in the complaint those are not expressly admitted here under. The policy of the vehicle bearing No. KL-14J-9120 is admitted. The insurance company was contacted and informed about the accident is utter falsehood and denied hereby. The company is totally unaware of the claim. It is also a baseless allegation that the company rejected the claim application filed by the complainant. The complainant’s estimation of damages at Rs. 5,00,000/- is also denied. The lawyer notice is allegedly sent on 18/10/2019 which is after 3 years and 5 months from the date of accident. So, the complaint is clearly barred by limitation and is liable to be dismissed on that ground alone. By suppressing the accident, the complainant caused to lose the opportunity of the opposite party to verify about the accident and collect information about the same. The opposite party did not receive any oral or documentary information about the accident. Similarly, the opposite party did not receive any claim from the complainant or his representatives. So, the opposite party is not liable to compensate the complainant’s claim.
The complainant filed proof affidavit in lieu of chief examination and the documents produced are marked as Ext.A1 to A8. Ext.A1 is the FIR on 25/05/2016 at 17.52. Ext.A2 is the Final Report. Ext.A3 is the certified copy of the Wound Certificate dated 15/07/2016 issued from A.J. Hospital Mangalore. Ext.A4 is the photostat copy of the Disability Certificate issued by the Medical Board. Ext.A5 is the photostat copy of the Disability Certificate issued by Department of Health Service, Government of Kerala. Ext A6 is the registered lawyer notice sent to opposite party. Ext.A7 is the reply lawyer notice. Ext.A8 is the Final bill. The complainant filed an IA 233/2022 to cause production of claim application filed by Lakshaman Rai before opposite party, which is produced and marked as Ext.X1. The opposite party submitted that they have no oral evidence. Both sides heard and documents perused.
We carefully gone through the affidavit and documents produced by complainant and the contentions raised in version filed by opposite party. The main contention raised by opposite party is that, the accident is not informed to them in time. The Kumbla police registered a crime and FIR regarding the accident as crime No. 283/16. The Kumbla police made a detailed enquiry and final report is submitted on 02/08/2016 as Ext A2. These documents Ext A1 and A2 are sufficient to prove the case in favour of the complainant. According to the complainant the police enquiry is in progress and he expected his claim application will allow soon after enquiry. Hence the case is not barred by limitation. The documents produced by opposite party in IA 233/2022 which is marked as Ext.X1 dated 18/07/2016 is a clear answer to the contention, which is claim form submitted by the complainant. The accident is informed to the opposite party in time. It is true that, thereafter a lawyer notice is also sent as a remainder to opposite party on 10/10/2019. The case is not barred by limitation as alleged by the opposite party because the claim form (Ext.X1) is submitted on 18/07/2016 soon after discharge from A.J. Hospital Mangalore. Hence opposite party is liable to compensate the claim of the complainant. The other contentions raised by the opposite party are not sustainable. Hence the complaint is allowed.
In the result, complaint is partly allowed, directing opposite party to pay Rs.2,00,000/- (Rupees Two lakhs only) to the complainant along with a compensation of Rs. 50,000/- (Rupees Fifty thousand only) with a cost of Rs. 5,000/- (Rupees Five thousand only) to the complainant within 30 days of the date of receipt of the order.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits
A1 – FIR
A2 – Final Report
A3 – Certified copy of the wound certificate
A4 – Photostat copy of the Disability Certificate issued by the Medical Board
A5 – Photostat copy of the Disability Certificate issued by Department of the Health
Service, Government of Kerala
A6 – Registered Lawyer Notice
A7 – Reply Lawyer Notice
A8 – Medical bills
X1 – Claim form
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
JJ/
