BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:
(UNDER THE CONSUMER PROTECTION ACT, 1986)
SRI P.APPALANAIDU, M.A., B.L., B.Ed., MEMBER.
PRESENT:- SRI N.JAGANNADHA RAO, B.Sc., B.L., PRESIDENT.
SMT P.RUKMINI, B.A., B.L., MEMBER
WEDNESDAY, THE 04TH DAY OF MARCH, 2009
60 years, Business,
R/o Perumali Village,
1. Reliance General Insurance company Limited,
Rep., by it’s Manager, Regd., Office 3rd Floor,
Maker Chambers, IV, 222, Nariman Point,
2. Reliance General Insurance Company Limited,
Rep., by it’s Branch Manager, Near R.T.C. Complex,
3. The Manager,
Road Safety Club (P) Ltd.,
Admi Office Z-A, IInd Floor, Prakasam Road,
4. The Branch Manager,
National Insurance Co., Ltd., Annanagar Branch,
Bearing policy No.500500/42/03/8200124 valid from 08-01-2005 to 07-01-2006.
(Amended as per order in I.A. /09 dt.18-09-2008. ..…Opposite parties.
This complaint is coming on for final hearing before us on 18-02-2009 in the presence of Sri J.Bheemasena Rao and Sri Y.Mohan Das, Advocates for complainant and of Sri B.Satyanarayana Raju, Advocate for opposite party No.1 and Opposite party No.2 called absent and remained exparte and Sri P.Seshadri, Advocate for opposite party No.3 and Sri K.Venu Gopal, Advocate for opposite party No.4 and having stood over for consideration, the Forum made the following:
1. The complainant, a resident of Perumali Village, Terlam Mandal, obtained a Group Personal Accident Master Policy through the 3rd opposite party with opposite parties 1 and 2 bearing Policy No.12-29-14-00129-05 dated 23-12-2005 and valid up to 07-01-2007 and his wife is a nominee. On 24-2-2005, the complainant along with Yelala Srinu, was proceeding on Hero Honda Motor Cycle bearing No.A.P.35 D 9172 from Perumali to Rajam and though the complainant drove the same in normal speed, a tractor bearing No.A.P.35 T 1292 came in opposite direction at high speed and dashed the motor bike and the complainant received fractured injuries to his right knee and patella, and fracture on his right shoulder besides fracture to his lower jaw and both cheeks and mandible on both sides. All injuries are grievous in nature. He became permanent disabled man. Due to lake of teeth, he could not eat any hard food and lost his biting capacity and lost his vision a bit. He could not attend his normal duties. As per the terms and conditions of the policy, the opposite parties are liable to pay compensation of Rs.2,00,000/- for permanent disability and Rs.25,000/- towards hospitalization expenses. The complainant was removed to P.V.R.hospital, Vizianagaram and from there, referred to Simhadri Hospital, Visakhapatnam, where he was inpatient for 180 days. A case in Crime No.29/05 under Sections 338, 337 of I.P.C. was registered and charge sheet against the driver of the tractor was filed in C.C.75/05. The policy was inforce from 08-01-2005 to 07-01-2006. The opposite parties did not pay the sum assured inspite of a legal notice nor give any reply. This failure to make payment amounted to deficiency in service. Hence the complaint claimed compensation of Rs.2,00,000/- towards permanent disability Rs.25,000/- towards hospitalization expenses and another sum of Rs.15,000/- towards compensation for mental agony.
2. While the complaint is pending enquiry and in view of counter filed by the 1st opposite party the complainant impleaded the 4th opposite party, National Insurance Company as the insurer.
3. The 1st opposite party, denying the claim of the complainant, pleaded that it is no way concerned with the claim of the complainant. It also took up a plea that as per the reply of the 3rd opposite party it is the National Insurance company which was the insurer and which was processing the claim and on that ground sought for dismissal of the complaint.
4. The 3rd opposite party filed a counter admitting issue of policy, but pleaded that it was issued by National Insurance company and the same was in force from 08-01-2005 to 07-01-2006 and that insurance company is the necessary party. It denied in liability it is the only a felicitator in obtaining the policy from insurance company and there cannot be any deficiency in service. Hence the complaint has to be dismissed.
5. The newly added National Insurance Company, while denying the complaint allegations pleaded that the failure to give any report to police as to the accident is against natural conduct of any ordinary person. More over, the complainant claimed to have obtained treatment at Vizianagaram for two days, but did not inform the police and only six days after the accident, the report was sent to police would show, there is something fishy in the alleged accident. It also pleaded that the dates mentioned in the first information report and the complaint are quite contrary. It is also pleaded that the complainant is not a consumer and this Forum has no jurisdiction as the dispute if any is subject jurisdiction of Chennai Court only and more over it should be decided by arbitration. It is also pleaded that the complaint itself is barred by time and there is no deficiency in service on the part of this opposite party. Hence the complaint is dismissed.
6. At the time of enquiry both parties filed affidavits in support of their contentions and marked Ex.A.1 to A.10 and Ex.B.1 to B.4 and both the counsels were heard who reiterated their respective contentions.
7. It is the contention of the counsel for the complainant that the issue of policy not being in dispute, the evidence filed by him would show that there was an accident wherein the complainant sustained grievous injuries, the opposite parties are bound to pay the policy amount to the complainant and its failure to do so is nothing but deficiency in service. More over, he contended, the claim is in time, as only from the date of repudiation of the claim, the limitation starts run to. He relied upon a decision in Ganeshwar Mohanty Vs. Divisional Engineer, The New India Assurance co., Ltd., a& Anr 1995(1) CPR page 65, wherein it was held that the complaint within three years of repudiation of claim is maintainable. He pleaded that Ex.A.10 disability certificate would show permanent disability sustained by the complainant.
8. It is the contention of the counsel for opposite parties 1 and 2 that it did not issue any policy to the complainant covering the accident period. More over, it is contended by the counsel that there is no office of opposite party No.1 at Vizianagaram and so notice was rightly returned with such endorsement. He pointed out that this Forum has no territorial jurisdiction. He ultimately contended that at any rate, the liability if any, would be on opposite party No.4 only. The counsel for opposite party No.3 Road Safety Club naturally took up a plea that it is only a felicitator in obtaining the insurance policy and forward the claim to the concerned insurance company and it does not have any liability.
9. The counsel for opposite party No.4 is opposing the claim on two grounds. Firstly, that the claim is barred by time which was made three years after incident. He pointed out that inspite of specific plea by the 3rd opposites party that it is the 4th opposite party only which was the insurer, the complainant did not take proper step to impleade this opposite party and even by the date of its impleading the claim is barred by time. He also urged that it was never issued any notice by the complainant and so question of repudiation did not arise. The 2nd ground urged by the opposite party No.4 is with the nature of injury sustained by the complainant, do not come under the terms and conditions of the policy enumerated therein and hence it cannot be mulcted any liability. It is also its contention that this Forum has no territorial jurisdiction as the terms of the policy would in fact show that dispute, if any, would be subject to the jurisdiction of Chennai Court.
10. In view of the above contentions arises by both sides the following points that would arise for determination in this complaint is:
1. Whether this Forum has got territorial jurisdiction to settle the claim?
2. Whether the claim is barred by limitation?
3. Whether there is any deficiency in service on the part of the opposite parties
and the complainant is entitled for the claim made?
11. POINT No.1:- This claim based on Personal Accident Master Policy the complainant is no doubt resident of Vizianagaram District the claim is against three opposite parties originally. The 3rd opposite party is Road Safety Club, with head quarters at Chennai. The opposite party No.1 is Reliance General Insurance Company with heard quarters at Bombay. Though the 2nd opposite party is shown as Reliance General Insurance with Branch at Vizianagaram, it turned out that there is no such branch at any time, and in fact notice sent by this Forum. was returned unserved with endorsement that there is no such office at all. The 4th opposite party National Insurance Company, which actually issued the policy is at Chennai. Apart from this, the accident occurred near Rajam which is undisputedly in neighbouring Srikakulam District. Thus except the residence of the complainant, none of the opposite parties are shown to be within the jurisdiction of this Forum. Evidently, non existing the 2nd opposite party was shown in the complaint with head quarters at Vizianagaram, only to claim jurisdiction under this Forum. Thus none of the opposite parties nor any part of cause of action has arisen within the jurisdiction of this Forum and we hold that this Forum has no territorial jurisdiction to entertain the complainant. Accordingly this point is answered against the complainant.
12. POINT No.2:- The next and most important plea raised by the 4th opposite party, which is the insurer is that the claim is barred by time. Though there is some discrepancy in the pleading as to the date when the policy was issued and accident occurred as can be seen from ex.B.4 insurance certificate filed by the 4th opposite party, it was issued on 24-12-2004 covering a period of insurance from 08-01-2005 to 07-01-2006. The accident occurred on 24-02-2005. Thus, by the time of accident, the policy is in force. However, inspite of specific plea by opposite party No.3 the Road Safety Club that it is the National Insurance Company which issued policy to the complainant by giving reply to the legal notice Ex.A.9 on 31-08-2007 and reiterating the same plea even in the counter filed on 06-06-2008, the complainant kept quite and only on 24-09-2008, took steps for impleading opposite party No.4 and the petition was allowed on 18-09-2008. As a matter of fact, the complaint itself was filed on 13-02-2008 i.e., beyond two years from the date of accident on 24-02-2005 which gave cause of action for this claim. Even the legal notice issued on 28-08-2007 was also beyond two years period of limitation. There is no application even, by the complainant, pleading for condonation of delay by the Forum, as provided under Section 24 (A) (2) of the Act prescribing two years limitation period for any claim with power to the Forum for condoning the delay recording its reasons. Thus the claim against opposite party No.4, insurance company, which has to answer the claim is clearly barred by time.
13. The learned counsel for complainant tried to contend that the claim can be made within three years from the time of repudiation of the claim by the insurance company and even cited an authority in Ganeshwar Mohanty Vs. Divisional Engineer, The New India Assurance Co.Ltd. & anr., 1995 (1) CPR page 65 (Cuttack). But apart from the fact that this decision was rendered on 03-04-1993 by the Orissa State Commission prior to insertion of section 24 (A) which came into force on 18-06-1993, prescribing limitation period there was never any claim made with proper insurer i.e., opposite party No.4 and question of repudiation by it did not arise at all. As already noted, inspite of the fact that opposite party No.3 the Road Safety Club in its reply notice, Ex.A.9, dated 31-08-2007 itself has specifically informed the complainant that it is opposite party No.4 which is the insurer to whom the claim forms were transmitted, the complaint was filed without impleading the 4th opposite party and application was filed to impleade it only on 29-08-2008, during enquiry, at the stage when parties filed documents in support of their respective contentions. Thus in any view of the matter the decision relied upon by the counsel for the complainant will not be of any help to substantiate his contention. Though the counsel also cited another authority in Maya Devi Vs. Life Insurance Corpn., of India 2008 (3) A.P.L.J. 1 (CC) (NC), in our view the question involved in that decision is not at all relevant to the dispute on hand.
14. In the light of the above discussion we hold that the claim is barred by time.
15. POINT No.3:- The issue of policy in favour fo the complainant by opposite party No.4 insurance company not being in dispute,
the next question that would arise would be whether the complainant sustained injuries in accident and the denial to settle his claim as per terms of the policy, by the opposite parties amounts to deficiency in service has to be considered. The opposite parties 1 and 2 are not insurers and opposite party No.3 is only felicitator in obtaining the insurance policy by the complainant and they cannot be mulcted with any liability in satisfying the claim. It is only opposite party No.4 being insurer would be liable to settle the claim.
16. It is contended that there was no accident at all and the extraordinary delay in giving report would show that there is something fishy and the complainant came up with a false claim. No doubt Ex.A.3, first information report, was registered six days after the incident that too while he was undergoing treatment in Simhadri Hospital, Visakhapatnam. Though the complainant’s claim that he was treated at Vizianagaram in the first instance, there is no material to support it. The first information report was registered on the statement recorded by Rajam policy at Simhadri Hospital, Visakhapatnam. But the fact remains that the case was registered against the tractor driver and the Motor Vehicle Inspector inspected the tractor, though he did not find any damage to it. In our view by this reason only the plea of the complainant that he met with an accident while going on the motor bike cannot be and need not be disbelieved. Evidently, due to ignorance and in the anxiety to render medical assistance to the complainant, the report to police was not given immediately. Hence we are unable to accept the plea of the insurance company that there is no accident at all.
17. With regard to the injuries sustained by the complainant and the disability caused to him Ex.A.5 the medical record issued by Simhadri Hospital would show that he sustained grievous injuriries on right knee, right patella, fracture of mandible on both sides, besides a lacerated wound of right shoulder. Surprisingly it does not show that there was any loss of teeth as claimed by the complainant. Similarly the plea of the complainant that he underwent treatment for six months in that hospital was not supported by any evidence. So the limited evidence placed by the complainant is that he suffered fractured injury on his right nee, right patella and mandible fracture on both sides of cheeks in that accident and that injury was grievous in nature.
18. Apart from the above evidence, the complainant filed disability certificate issued by Medical Board and to prove it affidavit of Dr.K.V.Murali Mohan who was one of the signatories of Ex.A.10 disability certificate was filed. The affidavit and the certificate would show old fractured injury on his right patilla and mandible double fractures on both sides of cheeks and the disability was assessed at 25%. This medical evidence could not be seriously challenged by the opposite party.
19. However, the insurance company took up a stand at that the injury sustained by the complainant was not covered by ex.B.1 policy wherein different types of injuries and extent of its disabilities were enumerated. Evidently it is a permanent partial disability. Though (on the reverse of) in the policy Ex.B.1 the injuries were specifically enumerated and the injuries sustained by the complainant was not covered, (Clause 12 at page 13 specifically mentions that any other permanent partial disability, percentage of such disability as assessed by the Doctor is also covered). By virtue of this Clause, the contention of counsel for insurance company that the policy does not cover this injury cannot be accepted. As per the Doctor’s assessment it is 25% disability that was caused. This scope of coverage as per the policy is for permanent partial disablement, sum insured was Rs.2,00,000/- and it being 25% partial disablement, the complainant would be entitle for Rs.50,000/- policy amount.
20. Though the complainant claimed Rs.25,000/- as hospitalization charges. Evidently, there is absolutely no evidence that to be placed by him to show that he was hospitalized and treated as inpatient anywhere. That being the case, on that count the complainant is not entitled for any amount. With regard to the claim for compensation of mental agony at Rs.15,000/- it being a claim for payment of policy amount covered in the accidental insurance question of granting compensation for mental agony separately does not arise. More over, there was never any claim against opposite party No.4 at any time and consequently there is no petition by it which can be said to be unjust. On that ground also the claim for compensation for mental agony cannot be sustained. Thus in all the complainant would be entitled for Rs.50,000/- being 25% of policy amount that too from opposite party No.4 only which shall be payable within 30 days and any failure of its with interest at 9% per annum from the date of this Order till the date of payment. However, in view of our finding on points one and two that this Forum has no territorial jurisdiction and that claim is barred by time, no order for payment by opposite party No.4 can be made by this Forum. Accordingly this point is answered.
21. In the result, the complaint is dismissed on the ground of limitation. Each party to bear their respective costs. Advocate fee is fixed at Rs.1,000/- (Rupees one thousand only).