D.O.F:06/01/2021
D.O.O:20/06/2023
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.04/2021
Dated this, the 20th day of June 2023
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SMT.BEENA.K.G : MEMBER
Premaveera D’Souza aged 28 years
D/o Elias D’ Sousa,
R/at Koppala House, Pavoot Post,
Manjeshwara Taluk, Kasaragod Dist : Complainant
(Adv: Thomas D’ Souza)
And
The Divisional Manager,
The New India Assurance Co.Ltd
Anebagilu, M.G. Road, Kasaragod Post, : Opposite Party
Kasaragod Taluk and District.
(Adv: A.C Ashok Kumar)
ORDER
SRI.KRISHNAN.K :PRESIDENT
The case of the complainant is that she is a graphic designer. She purchased a Maruthi Car KL 14 Y 3559 having valid insurance with Opposite party. Declared value is Rs. 345010/-. Insurance further covers a tune of Rs.15 lakh for accidental cover that may be suffered by driver or driver cum owner. Premium of Rs. 18121/- is collected.
2. The complainant’s vehicle met with an accident on 19/02/2020. It was driven by Nithin Feraro while taking to the car shed complainant sustained serious injuries. She was removed to Father Muller’s Hospital. She is permanently disabled occupational disability of 100% to her right leg. She informed the accident and claimed insurance benefits she sent a lawyer notice dated 14/09/2020. The Opposite party sent a reply admitting liability but denied suffering of any injury, complainant alleges deficiency in service and financial loss and entitled for compensation of Rs. 1,00,000/- and 15 lakhs as compensation for permanent disability and litigation cost.
3. The Opposite party filed these written version. Opposite party contended that vehicle is covered by insurance but denied that complainant suffered any injury as stated therein. Opposite party denied that on 07/12/2020 complainant approached them. The policy issued by Opposite party covers owner cum-driver in the case of death, loss of limb sight of eyes and permanent disablement form injurious while driving or mounting/dismounting from the vehicle or travelling in the vehicle as a co-driver. Complainant was never driving or travelling in the vehicle at the time of accident. She did not sustain any injury and therefore complainant is not entitled for any relief and hence to dismiss the complaint.
4. The complainant filed Ext A1 to A9 documents. The complainant was cross examined as Pw1 certificate issued by medical board marked as Ext X1. The Opposite party did not adduce oral evidence produced Ext B1 document. The attested copy of the policy.
In view of rival contentions following points arise for consideration.
- Whether complainant was travelling in the vehicle and whether she suffered any injury by accident during the journey? Or alleged injury caused permanent disability?
- Whether there is any deficiency in service? Whether complainant is entitled for compensation? If so for what reliefs?
All the points are taken up together for convenience.
5. The commission perused the document produced by complainant and Opposite party and went through documentary as well as oral evidence. The wound certificate produced shows that complainant sustained injuries, defused swelling on the middle third of right leg with fracture of both bones of the right. Opinion given by the doctor is that injuries are grievous in nature. The Opposite party did not file any objection to the petition for referring medical board or the document relating to the injury issued by father Mullers Hospital Mangalore, The insurance policy is marked as Ext A1, RC is Ext A2, FIR is Ext A3, final report is Ext A4, Ext A5 is wound certificate, lawyer notice is Ext A6, reply notice is Ext A7, Ext A8 discharge bill, Medical bills in 28 in number marked as Ext A9 series.
6. The Opposite party cross examined the complainant. Pw1 deposed that accident occurred in the house and vehicle is driven by my cousin. She was remaining her house hold articles in the car parking area during when vehicle hit her. She is the RC owner without license. As per policy owner-cum driver alone is entitled for insurance cover. Suggestion is made that no permanent disability caused as per the terms of the policy no percentage of disability is mentioned in Ext X1 report. In Re- examination it is stated that as policy terms, owner cum driver alone is entitled for benefits.
7. The stand taken by the insurance company is that the complainant did not suffer any accident and no disability and further she is not a traveler in the vehicle during the accident.
8. In the evidence given by Pw1 it is clear that she was not a traveller in the vehicle during when accident occurred and the medical board report does not speak about any permanent disability or percentage of disability. But the fact remaining that she suffered injury on right leg and doctor who treated her certified it as grievous injury.
9. The complainant sent a notice claiming compensation. It is relied by the company directing the complainant to produce evidence of total disablement due to injury.
10. In united India Insurance Co. Ltd V Suresh K K and another; 2008 (12) SCC 657; 2008 KHC 4602 in this decision it was held that if the claimant had not been travelling in the vehicle as owner to the goods, he shall not be covered by the policy.
11. The insurance company took a stand that as per the policy, the driver –cum owner would be entitled to a sum of Rs. 1,00,000/- the insurance company need not pay any compensation.
12. It is also admitted fact that no other motor vehicle is involved in the accident. In the present case, even as admitted by the claimants, the owner of the car has not remitted any additional premium to cover the risk that may be confronted by the occupants of the car. In such circumstances, we are of the view that the insurance company is not liable to pay compensation.
13. In united India insurance Company Ltd Vs Thilak Singh and others, reported in Manu/SC 8088/2006; 2006 (4) Supreme Court cases 404 /2006 (1) TN MAC 36 (SC). In that case it is held that, in the absence of remittance of any additional premium by the owner of the car, the insurance company cannot be statutory made liable to pay the compensation who was not an occupant of the car.
14. The Apex Court reiterated the legal position as laid down in National Insurance Company Ltd Vs Baljit Kaur; 2004(1) KCT 938(SC) 2004 (2) SCC 1 that the term “ any person” envisaged under S. 147(1) b (1) shall not include any gratuitous passenger, it was held that if the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of insurance to put it differently, no gratuitous passenger can be allowed to travel in a goods vehicle and not even the owner to the vehicle can share the seat of the driver in a goods auto rickshaw.
15. Thus, if the claimant had not been travelling in the vehicle, he shall not be covered by the policy of insurance.
In the result since owner is not travelling at the vehicle at the time accident as per policy terms insure company is not liable to pay compensation and considering the contentions received documents produced and evidence adduced complaint is liable to be dismissed.
In the result complaint is dismissed.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits
A1- Insurance policy
A2- RC
A3- FIR
A4- Final Report
A5- Wound Certificate
A6- lawyer notice
A7- Reply notice
A8- Discharge bill
A9- Series Medical Bills
X1- Medical board report
Witness Examined
Pw1- Prema Veera D’ Souza
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Ps/ Assistant Registrar
