Karnataka

Kolar

CC/12/2022

Lal Bahadur - Complainant(s)

Versus

United India Insurance Co Ltd - Opp.Party(s)

29 Jul 2022

ORDER

                          Date of Filing: 17.02.2022

Date of Disposal: 29.07.2022

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

 

Dated: 29^TH DAY OF JULY 2022

PRESENT

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI,B.A.L., LL.M., …..LADY MEMBER

 

CONSUMER COMPLAINT NO. 12 OF 2022

1) Lal Bahudur,

S/o. Veer Bahadur,

Aged About 62 Years,

 

2. Bharathi,

W/o. Lal Bahadur,

Aged About 50 Years,

 

Both are R/at:

No.255, Jaffar Compound,

Bharathpuram,

Andersonpet, K.G.F.                                                  ….  COMPLAINANTS.

(Rep. by Sri. T.R.Jayaram, Advocate)

- V/s –

United India Insurance Co. Ltd.,

Motor TP Claims,

Sathyanarayana Building,

NSC Bose Road,

Robertson pet, KGF

(Rep. by Sri.J.Simon, Advocate)                                …. OPPOSITE PARTY.

ORDER

BY SRI. SYED ANSER KALEEM, PRESIDENT

01.   The complainants have filed this Consumer Complaint Under Section 35 of the Consumer protection Act against the Opposite party-Insurance Company and prays to direct the OP - Insurance Company to pay Rs.15,00,000/- towards mental shock and agony, Rs.50,000/- towards costs of the proceedings together with interest at the rate of 12% per annum in the ends of justice and equity.

02.   The brief facts of the complainants case is that, they had two sons namely Naresh Kumar Khati and Jitendra and they had fond hopes that, their sons will take care of them during their old age.  It is stated that on 19.05.2020 at about 07.30 PM both sons of the complainant were proceeding towards Andersonpet from S.P. Office in their two wheeler Yamaha FZ bearing registration No. KA-08 – Q-0267 and the said Jithendra was driving his vehicle along with his brother Naresh Kumar Khati, when they reached near ST Mani Circle at about 07.30 PM Jitendra met with an accident with another two wheeler Yamaha bearing registration No. KA-67-E-7345 which came from opposite direction and as a result the rider of the motor bike by name Jithendra fell down and suffered severe head injury with multiple injuries all over the body and immediately he was shifted to R.L. Jalappa Hospital, Tamaka, Kolar, where Jitendra succumbed to injuries  on 26.05.2020 at about 05.00 AM.  The complainants states that, the Yamaha FZ bearing registration No. KA-08-Q-0267 belongs to Jitendra was insured  with the Opposite party insurance company vide Policy bearing No. 0715003119P106881674 covering the risk from 31.08.2019 to 30.08.2020 and the said policy provides compulsory PA cover for owner/driver and the sum assured is Rs.15,00,000/-.  The complainants issued legal notice dated: 04.01.2022 to the OP office at KGF Divisional Office, but OP did not give any response.  Hence this complaint.

03.   On service of notice the OP - Insurance Company appeared through its counsel and filed its version.

04.   In the version of OP, it is contended that, the complaint is not maintainable either in law or on facts and is liable to be rejected in limine.  It is contended that, the OP has no knowledge of the accident occurred to the son of the complainants. That the OP – Insurance Company contended that, the averment made at Para-5 of the complaint that, the complainant issued legal notice dated: 04.01.2022 to the OP office and the OP has replayed on 18.02.2022 asking to produce relevant documents for settlement, but complainants have filed this complaint.  Further contended that, there is no cause of action accrued to file this complaint before this Hon’ble Commission as alleged in the complaint.  The claim is not maintainable as claimed by the complainants and the complaint is already time barred.  The accident was occurred on 19.05.2020 at 07.30 PM and the complainants have not intimated to the OP - Insurance Company and the policy period is 12 months and after that, the insurance was lapsed automatically.  The OP states that, the claim was filed after lapse of two years, the policy is for 12 months only, the occurrence of loss claim, within a month and also intimation within 12 months.  After 12 months the claim intimation is not accepted by claim portal in computer system and after 12 months the policy was lapsed and was expired on 30.08.2020.  Hence contended that, claim is time barred and the complaint is liable to be dismissed.  There was coercion by the OP for settlement of the claim.  The complainants have made false allegations against the OP to get undue benefits.  The OP further states that, there is no defective or insufficient service on the part of this OP and on the above grounds OP prays to reject the complaint with exemplary cost in the interest of justice and equity.  

05.   In order to prove their cases both complainant No.1 and OP-Insurance Company have filed their respective affidavit evidences along with supporting documents.

06.   Heard the arguments of both the parties and OP – Insurance Company has also filed its written arguments.

07.   On perusal of the pleadings of both the parties and the documents placed on record, the following points will do arise for our consideration:-

1. Whether the complaint is barred by time as contended by the OP-Insurance Company to honour the claim made by the complainants ?

 

2. Whether the complainants have proved deficiency in service on the part of the OP – Insurance Company

 

3. Whether the complainants are entitled for the relief as sought for in the complaint?

 

4. What order?

 

08.    Our findings on the above points are:-

POINT (1):-      In the Negative

POINT (2):-      In the Affirmative

POINT (3):-      Is Partly Affirmative

POINT (4):-      As per the final order

for the following:-

REASONS

09.   POINT NO.(1):- On perusing the complaint and affidavit evidence, it is the specific case of the complainants that, the complainant is having two sons namely Naresh Kumar Khati and Jitendra. It is deposed in the complaint that, on 19.05.2020 at about 07.30 PM both sons of the complainants were proceeding towards Andersonpet from S.P. Office in their two wheeler Yamaha FZ bearing registration No. KA-08 – Q-0267 and one of the son by name Jithendra was driving his vehicle along with his brother Naresh Kumar Khati, when they reached near ST Mani Circle at about 07.30 PM the rider Jitendra met with an accident with another two wheeler Yamaha bearing registration No. KA-67-E-7345 which came from the opposite direction and as a result the rider of the motor bike by name Jithendra fell down and suffered severe head injury with multiple injuries all over the body and immediately he was shifted to R.L. Jalappa Hospital, Tamaka, Kolar, where Jitendra succumbed to injuries on 26.05.2020 at about 05.00 AM.

10.   It is not in dispute that, the motor cycle bearing registration No. KA-08 – Q-0267 was insured with the Opposite party - Insurance Company vide policy bearing No 0715003119P106881674 and the validity of the insurance will commence from 31.08.2019 to 30.08.2020. It is also not in dispute that, the son of the complainants Jitendra as result of the accidental injuries was died on 26-05-2020 at about 05.00 AM.

11.   On perusing the affidavit evidence of the OP - Insurance Company represented by its Assistant Manager who deposed that, the complaint is not maintainable on the ground that, the accident was occurred on 19.05.2020 and the complainants has to intimate the OP Insurance Company within seven days of the accident, but not intimated, whereas complainants intimated the OP - Insurance Company after lapse of policy period. The counsel for the OP – Insurance Company has vehemently argued that, the complainant intimated the OP - Insurance Company after lapse of two years after the occurrence of the accident and hence opposed to honour the claim.    

12.   On perusal of the legal notice issued by the complainants as per Document No 8, it disclose that, date of the notice shown as 04.01.2021, whereas in the complaint-petition the date of legal notice is shown as 04.01.2022. On perusal of the postal receipt it clearly discloses that, legal notice was sent to the OP - Insurance Company on 04.01.2022, hence it is crystal clear that, the accident was occurred on 19.05.2020, as per the FIR Document No.1. Further as per the Document No.1 and 8 the complainants intimated to the OP - Insurance Company after lapse of nearly about one year seven months. However complainants have pleaded in their legal notice stating that, due to pandemic period, they could not able to collect the relevant documents. It is worth to note that, the pandemic period was commenced from the March-2020 and runs up to the year 2021 and even the Hon’ble Apex Court extended the limitation to file suits and appeals before all courts and the averments of the notice is also the part of the pleadings as it is the foundation to the suit or complaint. Furthermore, the complainant also deposed in his evidence that, he had issued the legal notice to the OP Insurance Company to honour the claim as per the policy.

13.   The crux of the matter is that, the delay in intimating the OP - Insurance Company is disentitled the complainant to claim insurance benefit covered under the policy ?  It is well known fact that, the insurance is a contract based on doctrine of Uberrimafide and it is applicable for both parties.  Insurance is a contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person, is called a contract of indemnity.  Further the object of the insurance is to cover the loss suffered by the insured or its beneficiaries. Whereas in the case of theft, it is the duty of the insured to inform the insurer immediately with an object of giving an opportunity to the insurance company to ascertain the occurrence of the theft and hence immediate information is necessary or otherwise insured has to place all cogent reasons and evidence on record, based on the cogent evidence to prove the factum of theft. In the catena of decisions of the, Hon’ble Apex Court  as well as Hon’ble National Commission it is held that, mere delay cannot be ground to repudiate the claim of the insured. Whereas in the present case on hand, the death was occurred on 19.05.2020, and the complainants informed the same after lapse of a year and the complainant assigned reason in his legal notice and also placed relevant evidence on record and the records very well  speaks about the accidental death of the son of the complainants.  

14.   It is worth to mention here that, as per the terms and conditions of the insurance policy, the insured or the beneficiary under the insurance coverage has to intimate the insurer immediately after occurrence of the accident or any mishap. However the terms and conditions are between the insured and the insurer, and same cannot be attributed to the beneficiary of the policy.  Section 28 of the Indian Contract Act clearly states that, “agreements in restraint of legal proceedings void and it reads thus:-

“Every Agreement

(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, or

(b) which extinguishes the rights of any party, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent”. 

Furthermore as per Section 28 of the Contract Act in a recent decision rendered by the Hon’ble Justices Hemanth Guptha and V.Ramasubramanian observed that, “a condition in the insurance policy which bars the filing of the claim after the specified time period is contrary to Section 28 of the Indian Contract Act, 1972 and this void”.  

15.   Above all, in the present case on hand, the complainants are the parents of the insured and hence straight jacket formula of time limitation cannot made to be  applicable to the beneficiaries.  The Hon’ble Supreme Court and the Hon’ble National Commission held that the meaning of “immediately” means intimation to the insurer by the insured about the occurring of accident or any mishap in order to provide opportunity to an insurer with an object to appoint an investigator to find out the cause of the death independently and to assist the police to realize the true facts. Whereas on perusal Post Mortem Report as per Document No.3 and FIR as per Document No.1 it clearly establishes that, son of the complainant was died due to accidental injuries and mentioned in the Post Mortem Report that, death is due to head injury.  Hence the death is direct nexus to the accidental injuries. Hence not intimating earlier information to the insurance company, the cause of death cannot be denied as per the evidence placed on record and it will not prejudice the insurance company.  On foregoing reasons we reached to conclusion that the contention of the OP- insurance company is not acceptable one that the complaint is time barred.  Accordingly we answered the point No.1 in the Negative.

POINT NOs. (2) & (3):-

16.   These points are interlinked to each other and hence taken up together for common discussion for the sake of convenience and to avoid repetition of facts.

17.   Further as per the evidence and documents on record and also it is an undisputed fact that, the son of the complainants was insured his vehicle Yamaha Fz bearing Registration No. KA-08 Q-0267 with the OP – Insurance Company and the OP – Insurance Company has issued insurance policy bearing No.0715003119P106881674.  The policy is in force from 31.08.2019 to midnight of 30.08.2020. Further it is not in dispute that, as per the Document No.1 FIR it discloses that, son of the complainants was met with an accident on 19.05.2020 and due to the head injury the son of the complainants was succumbed to injuries as per Document No.3 Post Mortem Report.  On perusal of the FIR and the insurance policy the death of the son of the complainants was occurred due to the accident during the currency of the policy period only.  As we discussed while discussing Point No.(1) that, insurance is a contract based on doctrine of Uberrimafide and it is applicable for both parties.  Insurance is a contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person, is called a contract of indemnity.  Further the object of the insurance is to cover the loss suffered by the insured or its beneficiaries.  In the word of “insurance” there is six basic principles or forms of insurance coverage that must be fulfilled, including utmost good faith, insurable interest, indemnity, proximate cause, subrogation (transfer of rights or guardianship), and contribution.  Hence it is the bounden duty of the insurer to honour the legitimate claim of the complainants, whereas the OP – insurance company without honouring the claim raised only the contention that the claimants approached the OP – insurance company belatedly.  According to Section 28 of the Contact Act, a contract is void to the extent, it restricts absolutely a party from enforcing his rights by usual proceedings in ordienary courts or tribunals if it limits the time within which he may enforce his rights.  It is note worthy to mention that, usually the insurance company after the lapse of the policy they will intimate the insured to renew the policy, but in the present case insurance company not placed any such evidence regarding intimation to the insured for renewal of the policy and it leads to draw our inference that, OP – insurance company having the knowledge of death of the insured, hence the contention of belated approach cannot be made applicable to the present case on hand.  For the aforesaid reasons discussed above, we reached to conclusion that, the complainant has proved deficiency in service on the part of the OP - Insurance Company by not honourning the claim of the complainants.  Under the circumstances on perusal of the insurance policy it clearly discloses that, personal accident covers for owner – driver Rs.15,00,000/- and complainant also paid extra premium amount of Rs.275/- in addition to the premium amount towards personal accident coverage.  Hence as per the contract of insurance complainants are entitled for Rs.15,00,000/- and the OP – insurance company is liable to pay Rs.15,00,000/- to the complainants.  However complainants failed to produce the cogent evidence in order to award compensation for mental shock and agony and hence we deem it just and proper to award only to an extent of Rs.15,00,000/- as covered under the insurance policy and OP - Insurance Company is directed to pay Rs.2,000/- towards costs of the proceedings it will meets the ends of justice. Accordingly we answered Point No.2 is in the Affirmative and Point No.3 is partly affirmative.

POINT (4):-

18.   On the basis of the reasons assigned while answering Points Nos. (1) to (3) we proceed to pass the following:-

 

ORDER

01.   The complaint is allowed-in-part with costs of the proceedings.

02.   The OP - Insurance Company is directed to pay Rs.15,00,000/- towards the claim of the personal accident coverage to the complainants within 45 days from the date of the order failing which, the OP is directed to pay the interest @ 9% per annum on the above amount from the date of the order till realization.  Further the complainants are directed to deposit 50% of the award amount in any nationalized bank as fixed deposit for a period of 03 years in their names and compliance of the said FD orders shall be intimated to this Commission.

03.   The OP – insurance company is also directed to pay Rs.2,000/- towards costs of the proceedings to the complainants.

04.   Further the OP demands any documents to release the insurance amount complainants are directed to furnish all required documents to the OP - Insurance company.   

05.   Send a copy of this order to both parties free of costs.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 29^th  DAY OF JULY 2022.

 

 

    LADY MEMBER                               PRESIDENT