Telangana

Mahbubnagar

CC/08/38

S. Ramulu S/o Pentaiah O/c Coolie - Complainant(s)

Versus

The Oriental Insurance Company Ltd., rep by Branch Manager - Opp.Party(s)

Sri P. Amba Shankar n K. Srtinivas Reddy

30 Sep 2008

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

Monday the 29^th day of September, 2008

Present:-  Sri M. Rama Rao, B.A.,LL.B., President

         Sri P.Venkateshwar Rao, B.Com. LL.B., Member

                                        Smt. B.Vijaya Kumari, M.Sc. B.Ed., C.C.P., Member

 

                                                                                    C.C.No. 38  Of  2008

Between:-

S. Ramulu S/o Pentaiah, age: 40 years,

Occ: Coolie, R/o Maddigatla village, Bhoothpur Mandal,  Mahabubnagar.

                                                                                             … Complainant

And

The Oriental Insurance Company Ltd., rep. by its Branch Manager,

Teja Complex, Mahabubnagar.

                                                                              … Opposite party

 

 This C.C. coming on before us for final hearing on  26-09-2008 in the presence of Sri P. Amba Shankar, Advocate, Mahabubnagar for the complainant and of Sri A. Rajender Reddy, Advocate, Mahabubnagar for the opposite party and having stoodover for consideration till this day, this Forum delivered the following:

O R D E R

 (Sri P.Venkateshwar Rao, Member)

 

1.   This is a complaint filed on behalf of the complainant under section   

12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to pay policy amount of Rs.50,000/- with interest from the date of accident till realization and pay compensation for causing mental agony and also pay costs of the complaint. 

 

2.    The complaint averments are as follows:-  The complainant obtained Jantha Personal Accident Policy bearing policy No.11304 from OP for a sum of Rs.1,00,000/- for one year period from 5.1.2006 to 4.1.2007.  During subsistence of the policy on 23.7.2006 at about 11:00 A.M. the complainant boarded one auto bearing No. AP 22 V/7206 to go to Bhoothpur.  When the auto reached Kothamolugara village, one auto bearing No. AP 22 V/6794 came in opposite direction with high speed, rash and negligent manner and dashed the complainant boarded auto.  In this accident the complainant sustained right leg fracture and due to this fracture he disabled permanently and the doctor assessed the disability 40%, hence the complainant is entitled fifty percentage of the capital sum i.e., an amount of Rs.50,000/- in terms of Jantha Personal Accident Policy.   The complainant several times approached OP for policy amount under Jantha Personal Accident Policy but OP neither settled nor rejected the claim.   The opposite party is bound to pay the policy amount as per the terms and conditions.  Non-payment of policy amount amounts do deficiency of service on the part of OP.  Therefore the complainant is entitled to get policy amount of Rs.50,000/- together with interest thereon apart from compensation and costs of the proceedings.   Hence the complaint.

 

3.      The opposite party filed counter with the following averments:-     It is true that the complainant is an insured and obtained policy with OP for    JPA and the same is in force as on the date of accident.   The   complainant has not sustained any injury and with a malafied intention     for getting wrongful gains the false story is created.   Hence OP is not       liable to pay any compensation to the complainant.   The complainant  never approached OP for any claim, but it is false to aver that the     complainant approached for claiming Janatha Personal Accident Policy   for the injuries sustained to the complainant and the burden lies on the  complainant to prove that the complainant approached OP about the  claim and the complainant has to prove with documentary evidence in     this aspect, hence the deficiency in service does not arise as the   complainant has not approached OP as on today itself.  Hence, the claim is not maintainable and the same is liable to be dismissed.   It is denied         that the complainant’s right leg was fractured and he sustained  disability of 40% and the same is not aware by OP and after receiving   this court summon only this OP is knowing the fact and that OP is not  liable to pay any compensation to the complainant as this OP is not   aware of all those facts, hence the question of deficiency in service does    not arise.  Hence the claim is liable to be dismissed.   There is no cause  of action about the claim and it is further denied that the cause of action   arisen on 23.7.2006 and OP is not having any knowledge as the   claimant has not intimated anything with regard to the accident.  Hence    the claim is liable to be rejected.  The injured is not entitled for any   claim as per the terms and conditions of the policy.   As per the policy conditions it is very clear that “the happening of any event which may  give rise to a claim under this policy insured shall forthwith give notice thereof to the company, unless reasonable cause is shown the insured  should within one calendar month after the event, which may give rise to   claim under the policy, give return notice to the company with full particulars of the claim and also proof satisfactory to the company shall be furnished”.  Therefore there is no proof of submitting claim to OP         and the complaint is filed only for wrongful gain.  Hence the same is liable to be dismissed with costs. 

 

4. The complainant filed his affidavit and got marked Exs.A-1 to A-7.

 

5.  The opposite party filed affidavit and no exhibits were marked on behalf of them.

 

6. Heard arguments of both side. 

 

7. The point which falls for consideration is whether the complainant is entitled to the reliefs as prayed for?

 

8. The contention of the complainant is that he sustained injuries in the accident, hence he submitted claim before the opposite party in pursuance of the policy.  But OP did not settle the claim of the insured complainant inspite of several approaches.  The opposite party vehemently contended in the counter that the complainant (insured) neither approached nor filed any claim form along with the required proof of incident and in the absence of filing of claim form the question of deciding it does not arise.  Thus the complaint is not maintainable on the ground of deficiency in service by the opposite party for not settling the claim.

 

9.    We have gone through the record available before us.  The complainant has not filed any copy of claim form which was filed before the OPs or its acknowledgement while filing the complaint. Later the complainant filed the said claim form on 26.9.2008 and got marked as Ex.A-7.  It reveals that the claim form along with original policy, FIR, and other documents were submitted to the OP on 25.9.2008.Therefore it is clear that the complainant did not submit the claim form till filing of this complaint before the Forum as contended by OP.  Hence there is no deficiency of service on the part of OP.   So it is clear that the complaint is premature and filed without any cause of action and consumer dispute and without exhausting the remedies before the opposite party.  Therefore OP cannot be blamed for deficiency of service.                  

Thus we hold that the complainant is not entitled any reliefs as prayed in his compliant, except with the direction to approach OP and after exhausting the remedy with OP, he may approach this Forum again with fresh cause of action if any.   However, this direction will not restrain the decision of OP in settling the claim according to the terms and conditions of the policy. 

10.    In the result, we hold that the complainant may approach this Forum for legal remedy if any, after exhausting the remedy before the opposite party.  The OP is at liberty to decide the claim according to the terms and conditions of the policy.  With this direction the complaint is closed.  Both the parties are directed to bear their own costs.  

    Typed to dictation, corrected and pronounced by us in the open Forum on this the 29^th day of September, 2008.

 

 MEMBER                       MEMBER                                PRESIDENT

 

Appendix of evidence

Witness examined

 

For complainant: Nil                                                    For opposite party:  Nil

 

Exhibits marked for complainant:-

 

Ex.A-1:     Xerox copy of FIR, dt.10.8.2006. 

Ex.A-2:     Xerox copy of Remand Case Diary.

Ex.A-3:     Xerox copy of Policy Schedule, dt.5.1.2006.

Ex.A-4:     Xerox copy of Disability Certificate.

Ex.A-5:     Xerox copy of Legal Notice, dt.4.6.2008.

Ex.A-6:     Xerox copy of Daily delivery sheet of Courier, dt.15.6.2008.

Ex.A-7:     Claim Form, dt.25.9.2008.

 

Exhibits marked for OP.-

 

      - Nil -

  

By the Forum:-

 

     - Nil -

                                                                                                                             PRESIDENT

Copy to:-

 

1. Sri P. Amba Shankar, Advocate, Mahabubnagar for the complainant.
2. Sri A. Rajender Reddy, Advocate, Mahabubnagar for the opposite party.