IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 30th day of April, 2016
Filed on 19.11.2013
Present
1.Smt. Elizabeth George (President)
2.Sri. Antony Xavier (Member)
3.Smt.Jasmine.D. (Member)
in
C.C.No.352/2013
between
Complainant:- Opposite Parties:-
Smt. Fathima Beevi @ 1. The New India Assurance Co.
Pathumma Beevi represented by its Divisional
W/o deceased J. Abu Manager, Divisional Office
Assariveliyil J.J. Avenue, VCSB Road
Avalookkunnu Ward Near YMCA, Alappuzha – 1
Avalookkunnu P.O. (By Adv. T.S. Suresh)
Alappuzha – 688 006
(By Adv. James Chacko) 2. Sri. V. Babu, Kunnukandam
Veli House, Karukayil Ward
Thathampally P.O.
Alappuzha – 688 013
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant is the wife and legal heir of deceased J. Abu, who was driver of Autorikshaw bearing Regn. No.KL-04/W-9225 at the material time of the accident. The deceased J. Abu was permanent driver of the said Autorikshaw about for the last four years. The said Autorickshaw was duly comprehensively insured with the opposite party for all risks damages and losses by the owner of Autorickshaw. Policy number of the said Autorickshaw is 76070531110100006074. The policy also covers driver for Rs. 1 lakh in case of accident caused injuries or death of driver for which opposite party duly received extra premium of Rs.2,485/- from the owner of Autorickshaw, for covering personal accident to the driver and other third party cover, which was duly mentioned in the policy itself. On 22.4.2012 when the complainant’s husband was driving a KSRTC Bus came from the opposite direction hit against the complainant’s husband driving Autorickshaw and he died at the spot itself due to the serious injuries sustained to him. As per the conditions of above said package policy, the opposite party is legally liable to disburse Rs.1 lakh in favour of the complainant for the tragic death of her husband, J. Abu while he was driving the Autorickshaw. bearing Regn. No.KL-04/W-9225, at the time of the accident. After the accident, complainant duly filed claim form along with all relevant documents through the registered post to the opposite party, for getting legally entitled assured amount of Rs.1 lakh on account of Personal Accidental Death Benefit to the driver of Autorickshaw in case of accident. But unfortunately opposite party repudiated valid claim returned all the documents submitted along with original claim form without proper explanation. Alleging deficiency in service on the part of the opposite parties, the complaint is filed.
2. The version of the first opposite party is as follows:-
This opposite party admits the package policy with respect to the Auto bearing No. KL-04-W-9225 w.e.f. 19.8.2011 to 18.8.2012 in the name of Babu. The above complaint is not maintainable before this Forum.
3. The version of the second opposite party is as follows:-
At the time of accident the Autorickshaw bearing No. KL-04-W-9225 was owned and possessed by the second opposite party. The said vehicle was driven by Mr. Abu, S/o Jalaludeen, Thykkuttathil Veedu, Thathampally P.O., Alappuzha and he was the employer of the second opposite party. The said driver who died in the accident was employed with the second opposite party for nearly 4 years, till his death. It is submitted that the said vehicle was duly insured with the first opposite party. The act of repudiating the valid claim of the complainant was illegal and unjustifiable. Hence the petition is only to be allowed.
4. The complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A10. On the side of the opposite party 2 documents produced which were marked Exts.B1 and B2.
5. The points came up for considerations are:-
- Whether the complaint is maintainable?
- Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to get relief and cost?
6. It is an admitted fact that the vehicle bearing Reg. No. KL-04-W-9225 was insured with the first opposite party. It is also an admitted fact that the policy issued by the company is a package policy having Personal Accident Cover for the owner driver. According to the first opposite party the driver of the vehicle may opt to file a case before the Workmen’s Compensation Court or before the Motor Accident Claims Tribunal for getting compensation under that policy. The complainant has no case that she has not filed such a case before the MACT., Alappuzha. At the same time as per the ruling report in 2011 ACJ 1263 in New India Assurance Co. Ltd. Vs. Bidami and others that, “Whether claimants who have received compensation under Motor Vehicle Act for death of the deceased are not debarred from making claim against employer under the Workmen’s Compensation Act – Held: yes; doctrine of election under section 167 does not apply qua the claimants; respondents in two proceedings are different and insurance contracts are also different though with same insurance company; intention or bar under section 167 of Motor Vehicles Act or section 3(5) of Workmen’s Compensation Act or section 53 of E.S.I. Act is only to save same person, viz., employer where such employer happens to be tortfeasor also, being vexed twice over for same cause of action.” Hence the legal heir of the deceased J. Abu can file claim before the Workmen’s Compensation Court also. As per the Indian Motor Tariff, the party can approach only a Workmen Compensation Court for getting compensation under the policy. Hence we are of the considered opinion that this Forum has no jurisdiction to entertain the complaint and the complaint is dismissed with liberty to file before the appropriate authority for getting compensation.
In the result, complaint dismissed.
Dictated to the Confidential Assistant transcribed by her corrected by me an pronounced in open Forum on this the 30th day of April, 2016.
Sd/- Smt.Elizabeth George (President)
Sd/- Sri. Antony Xavier (Member)
Sd/- Smt. Jasmine. D. (Member)
Appendix:-
Evidence of the complainant:_
PW1 - Fathima Beevi (Witness)
Ext.A1 - Motor Claim Form
Ext.A2 - True copy of FIR & FIS
Ext.A3 - True copy of Final report
Ext.A4 - True copy of Postmortem certificate
Ext.A5 - True copy of Legal heirship certificate
Ext.A6 - True copy of Insurance Certificate
Ext.A7 - True copy of RC book
Ext.A8 - True copy of permit
Ext.A9 - True copy of driving license
Ext.A10 - True copy of Salary certificate
Evidence of the opposite parties:-
Ext.B1 - Letter dated 23.04.2013
Ext.B2 - Copy of the policy
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
