SRI G.APPALA NAIDU, MEMBER.
O R D E R
This complaint is filed U/s-12 of Consumer Protection Act 1986 seeking reliefs to issue notice to the O.P for commission of non- providing service to the complainant, to order the O.P to settle the claim of the complainant as per policy schedule and to grant such other relief or reliefs which the Hon’ble Forum deems fit in the interest of justice on the following averments:
The complainant is the resident of Balajinagar, Vizianagaram and a house wife. She submits that she purchased a two wheeler Vehicle manufactured by Suzuki India vide its engine and chassis No.G423 125014 for which he obtained a policy through O.P by paying premium bearing policy No.461290/31/2010/1673 for the period from 3rd March, 2010 to 2nd March, 2011. The complainant submits that at the time of taking of policy the O.P collected total claim of Rs.1,271/- from the complainant which also includes additional P.A. covering unnamed GR 36D2 for Rs.70/-. It is further submitted that at about 7 a.m on 12-12-2010 her only son namely Pentakota Sudheer, started from his house situated at Balajinagar, Vizianagaram by the above motor bike with an intention to attend invigilation duty for the post of supervisors of APSRTC being conducted in his college but when he reached near Mudidam village at about 8.a.m., the driver of the lorry bearing No.AP 31 TT 1145 drove his vehicle in a very rash and negligent manner at high speed without blowing horn coming from Vizianagaram to Visakhapatnam and dashed the back side of said motor bike as a result of which he fell down on the road and the lorry front and rear wheels ran over him, thereby he died on the spot, and the insured motor bike also fully damaged. On knowing the said unfortunate accident the husband of the complainant lodged a report to the SHO., Vizianagaram Rural P.S. which was registered as Crime No.141/10 U/s 304 (A) of IPC and after completion of investigation, a charge sheet was filed against the lorry owner U/s 304 (A) of IPC.
The complainant further submits that she personally approached the O.P branch and presented claim application along with insurance copy and other required documents and visited the O.P at Vizianagaram several times and enquired about the status of claim as per policy schedule but the O.P postponed the event of settlement of claim at all times by saying some stories. There being no other go, finally she got issued a legal notice to the O.P on 21-5-2012 mentioning the above facts but having received the same the O.P did not choose to settle the claim of the complainant for the reasons best known to them. Since the O.P willfully committed default by non providing service to the complainant thus causing irreparable loss not only in respect of mental agony, harassment but also financial loss. Hence this complaint.
Counter filed by the O.P denying the allegations leveled by the complainant in the complaint except those which are specifically admitted therein them and puts the complainant to strict proof of the same. It is submitted that the M.O.P. claim 239/2011 was filed in the competent court for Rs.30,00,000/- in respect of the same accident mentioned in the complaint along with her husband whereas this complaint is filed by the complainant only. Therefore, it is not maintainable and is liable to be dismissed. It is also submitted that as per the FIR and charge sheet, the lorry dashed the motor cycle and thereby the driver of the motor cycle died. The accident was occurred only due to rash and negligent driving of the driver of the lorry No.AP 31 TT 1145 but the police filed FIR and charge sheet against the driver of the lorry but not against the driver of the motor cycle i.e., deceased. Therefore this O.P is not liable to pay any compensation. It is further submitted that the complainant had already filed claim M.O.P.239/2011 for Rs.30 Lakhs against the owner of the said lorry and also the insurance company i.e., Shriram General Insurance Company Ltd., and therefore, the complainant will receive the compensation under the Motor Vehicles Act. Hence, the legal hires of the deceased are not entitled to receive the compensation again from this O.P since it amounts to double payment in one and the same accident. Further the policy of this O.P did not cover the risk of the deceased. It is also stated that since the complainant is not entitled to get any compensation, the claim was repudiated and therefore, there was no deficiency of service on the part of this O.P. However, the complainant has to take other remedy in this case so as to prove the same. As there are no bonafides in this consumer complaint, the same is not maintainable either under law and fact and accordingly it is liable to be dismissed with costs.
Ex.A.1 to A.6 are marked on behalf of the complainant and Ex.B.1 is marked on behalf of the O.P. Heard arguments posted for orders. The orders are as follows:
The counsel for both the parties advanced their arguments vehemently by reiterating what they have stated in the complaint, counter, evidence affidavits and brief written arguments respectively.
The main contention of the complainant is that her son died in the accident when he was driving the motor bike to attend invigilation duty for the post of supervisors being conducted by the APSRTC in his college due to very rash and negligent driving of the lorry bearing No. AP 31TT 1145 which occurred near Mudidam village at about 8 A.M on 12-12-2010 and inspite of her constant follow up with the Insurance Authorities by submitting the required documents, her claim was not settled by the O.P., which act of the O.P accounts for deficiency in service. The contention of the O.P is that the FIR and charge sheet was filed against the driver of the lorry but not against the driver of the motor cycle i.e., deceased. Therefore, they are not liable to pay any compensation since the accident occurred only due to rash and negligent driving of the driver of the said lorry. The other contention of the O.P is that the complainant had already filed claim i.e.,M.O.P.239/2011 for Rs.30 Lakhs against the owner of the lorry and also the Insurance Company i.e., Shriram General Insurance Company Limited, which the complainant will receive. Since the said legal heirs are not entitled to receive double payment in one and the same accident, they are not entitled to receive again from the O.P and further the policy issued by the O.P did not cover the risk of the deceased.
The complainant in support of her contention submitted a citation : 2013 (1) An.W.R.256 (SC) : Civil Appeal No.8163 of 2012 decided on 20-11-2012 (Arising out of S.L.P. (Civil) No.1232 of 2012) : National Insurance Company Ltd., Vs Balakrishnan and another : MOTOR VEHICLES ACT, 1988, Sections 140,147 and 166 – Motor accident – Car dashing against bullock Cart – 1st respondent sustaining bodily injuries – Claim for compensation – Claim resisted by appellant – Insurance Company that it could not be held liable to indemnify 1st respondent, as he himself was the owner, being the Managing Director of 2nd respondent company and he could not be treated as a third party and the policy taken by 2nd respondent – company did not cover an occupant in the vehicle but only covered the owner for a limited quantum – Tribunal holding that appellant – Insurance Company was liable to indemnify as the owner of the vehicle was the company and the injured was travelling in the car as a third party – Appeal there against dismissed by High Court – Appeal – Question whether the policy is an “Act Policy” or “comprehensive / package policy” - Held, no discussion either by Tribunal or High Court in this regard – True, Annexure P-1 is a policy issued by insurer mentioning it to be a “Comprehensive Policy”, but there has to be a scanning of the terms of the entire policy to arrive at conclusion that it is really a “package policy” to cover the liability of an occupant in a car – Hence, finding of High Court and Tribunal as regards liability of insurer set aside and matter remitted to Tribunal to scrutinize the policy in a proper perspective – If conclusion is arrived at that the policy in question is a ‘Comprehensive / Package Policy”, liability be fastened on the insurer – Other findings recorded by Tribunal and affirmed by High Court remain undisturbed – Appeal allowed to the extent indicated.
The Circular bearing Reference : IRDA/NL/CIR/F&U/073/11/2009 dt.16-11-2009 issued by the Insurance Regulatory and Development Authority as under “Section II – Liability to Third Parties 1) Subject to the limits of liability as laid down in the Schedule hereto the company will indemnify the insured in the event of an accident caused by or arising out of the use of the insured vehicle against all sums which the insured shall become legally liable to pay in respect of – (i) death or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured”.
However, the facts and principles laid down in the above citation and also the circular of IRDA mentioned supra are not applicable in the case on hand since the complainant is not entitled to double payment in one and the same accident and for the same cause besides the fact that their petition for M.O.P filed in the appropriate competent court is already under active consideration which is at the fag end of final orders. Further the petition filed in this Forum is only for compensation for death, but not for the vehicle damaged. As the entire issue is being dealt with by the appropriate competent court comprehensively, no interference of this Forum is warranted keeping in view of the legal issues involved and complication of the facts of law, we are of the well considered view that the complainant is at liberty to approach the appropriate competent court for redressal her grievances.
Perusal of the material placed on record reveals that the said package policy for the two wheeler contains an item namely P.A. – UN-NAMED G.R.36 B2 for Rs.70/-. Out of the total premium of Rs.1,271/- paid by the complainant in respect of the aforesaid policy and as per IMT.16 of the policy, it is indicated that personal accident to unnamed passengers other than insured and the paid driver and cleaner, compensation shall be payable in respect of any such person arising out of any one occurrence and total liability of the insurer shall not in the aggregate exceed a sum of Rs.100% as the scale of compensation during any one period of insurance in respect of any such person.
However the following vital points are to be reckoned with before deciding on the issue regarding entitlement of compensation from the O.P insurance company.
No.1:- Even though in the counter and brief written arguments etc., the O.P stated that they have sent the repudiation letter to the complainant, no such letter is produced in this Forum. Even the complainant also reiterated that they have not received any such repudiation letter from the O.P so far.
No.2:- The accident date was 12-12-2010 whereas the complainant was filed on 26-12-2013 unless the date of repudiation is known and such letter is produced, the cause of action will not arise for filing this complaint.
No.3:- Claim of the complainant is not on the damaged vehicle but the compensation/claim is only as per the policy schedule of the two wheeler package policy. The complainant had already filed petition i.e., M.O.P.No.239/2011 for Rs.30 Lakhs in the regular court against the owner of the lorry and also the concerned Insurance company i.e., Shriram General Insurance Company Limited for which they will receive the compensation under the Motor Vehicles Act and hence the legal heirs of the deceased are not entitled to receive double payment in respect of one and the same accident.
Further unless this Forum knows the breakup details of the claim / compensation sought by the complainant and decided in the regular court, it is also not possible to take up the issue either comprehensively or individually in this Forum as the aforesaid details are not submitted in this Forum by the complainant.
As the entire matter deals with complicated questions of law and fact this Forum cannot decide such complicated questions and as such the only remedy available to the complainant is to approach the competent court of law to get her grievances redressed. It is the case of complainant that her claim was not repudiated by the O.Ps., and if that be the case no cause of action did arise for filing the complaint. Hence in the above said facts and circumstances we are of the considered opinion that the complaint merits no consideration.
In the result the complaint is dismissed, but under the circumstances without costs.
Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 20th day of February, 2015.
MEMBER PRESIDENT
C.C.No.32 / 2014
APPENDIX OF EVIDENCE
WITNESSES EXAMINE
For complainant:- For opposite parties:-
PW 1 RW1
DOCUMENTS MARKED
For Compainant:-
Ex.A-1 Xerox copy Insurance Policy copy dt.2-3-2010
Ex.A-2 FIR in Cr.No.141/2010 of Vzm Rural PS dt.12-12-2010
Ex.A-3 Postmortem report Certificate dt. 12-12-2010
Ex.A-4 Office copy of Legal notice dt.21-5-2012
Ex.A-5 copy of MVI Report dt.14-12-2010
Ex.A-6 Copy of Claim Application dt.23-12-2010.
For OP:-
Ex.B-1 Copy of Two Wheeler package Policy.
President
