IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 18th day of November, 2021.
Filed on 27-08-2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.203/2020
between
Complainant:- Opposite party:-
Sri.Thomas Joseph The Divisional Manager
S/o Late Joseph Nationla Insurance Co. Ltd.
Vattathil Veedu Divisional office, Near Vellakinar Jn.
Punnapra P.O. Alappuzha- 688001
Alappuzha (Adv.Sri.T.S Suresh)
(Adv.Sri.Jose Y James)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
Material averments briefly stated are as follows:-
Complainant is the father of deceased Shemil Thomas who died in a motor vehicle accident occurred on 06.10.2019 at about 10.15 p.m 300 meters west of Punnapra Junction on Punnapra junction beach road. Sri.Shemil Thomas was riding his own motor cycle bearing Reg.No.KL 04 AF 4793 from east to west and at the place of occurrence accidently hit against a paver machine which was parked negligently on the middle of the road without any parking light or signal light. The said accident occurred solely due to the negligent parking of the paver machine on the road. Sri.Shemil Thomas was the owner/ rider of motor cycle bearing Reg. No. KL 04 AF 4793. Punnapra police registered a case as crime No.1148/2019 against the driver of the paver machine.
2. Deceased was a healthy and energetic man, aged 27 years and also working as a staff in Payyannoor court. Post mortem examination was done at T.D medical college hospital and the cause of death was due to blunt injuries sustained to chest and abdomen.
3. On 08.06.19 Shemil Thomas had taken a comprehensive policy of the opposite party for his motor cycle and had paid a premium of Rs.1372/- which includes Rs.295/- premium towards personal accident cover of the policy holder. By that cover assured amount of Rs.15,00,000/- is to be paid to the nominee (complainant) if the policy holder dies in a motor vehicle accident while riding the motor cycle. The policy is valid from 08.06.19 to 07.06.2020. The death was duly intimated at the divisional office of the opposite party on the next working day. A claim form was issued and it was duly filled up and submitted along with all connected documents. However opposite party did not sanction legally entitled claim amount to the complainant which amounts to deficiency in service. Though complainant visited the opposite party several times the claim amount was not disbursed. Complainant is entitled to get the assured amount of Rs.15,00,000/- as per P.A cover of the policy along with 12% interest per annum from the date of lodging of claim till deposit and Rs.1,00,000/- as damages sustained by the complainant for his mental pain, agony and loss of time. Hence the complaint.
4. Opposite party filed a version mainly contenting as follows:-
The complaint is not maintainable and it is filed with unclean hands by suppressing material facts. There is no deficiency of service as alleged by the complainant.
5. It is true that opposite party admits the insurance policy with effect from 08.06.19 to 07.06.2020 with respect to the motor cycle KL 04 AF 4793 in the name of insured Shemil Thomas covering the accident on 16.10.19. The said policy is having a personal accident coverage subject to the terms and condition and law. Complainant has not impleaded all the legal heirs of deceased Shemil Thomas.
6. The actual facts leading to the non disbursement of claim is that opposite party while processing the claim noticed that at the time of accident deceased Shemil Thomas was riding his motor cycle carrying two pillion riders. Since it is a violation of sec.128 of the MV Act the claim was not entertained. As per Sec.128 of MV Act “ No driver of a two wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver’s seat with appropriate safety measure”. In the present case as per the police case at the time of accident deceased was riding his motor cycle carrying two pillion riders namely Sebastian and Dibin and it is clear from FIR No.1148/2019 of Punnapra Police station. The policy issued by the opposite party is in accordance with the provisions of MV Act. So any violation of MV Act amounts to the policy violation. Hence opposite party has no liability to give PA benefit. So as per letter dtd.17.06.2020 clarification was sought from the complainant. Complainant sent a reply notice on 15.07.2020 stating untenable contentions. So as per letter dtd.20.07.2020 company repudiated the claim.
7. Insurance is a contract of indemnity and the benefit under the policy is in accordance with the policy condition. Company as well as the insured can never deviate from the policy condition. There is no illegal acts, fraud, misrepresentation and unfair trade practice from the part of this opposite party. Hence the complaint may be dismissed with cost and compensatory cost.
8. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the deceased was riding the motor cycle violating sec. 128 of the Motor Vehicles Act ?
- Whether the complainant is entitled to realize an amount of Rs.15,00,000/- being the PA cover along with interest as prayed for ?
- Whether the complainant is entitled to realize an amount of Rs.1,00,000/-as compensation from the opposite party as prayed for?
- Reliefs and cost?
9. Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A7 from the side of the complainant. Opposite party has not adduced any oral evidence Ext.B1 to B3 were marked.
10. Point Nos.1 to 4:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A7.
11. Ext.B1 policy Ext.B2 copy of FIR in crime No.1148/19 of Punnapra Police station and Ext.B3 repudiation letter dtd.20.07.2020 were marked.
12. PW1, complainant is the father of Sri. Shemil Thomas who met with an untimely death in a motor accident on 6/10/2019 at the age of 27 years. He was riding his motor cycle bearing Reg.No KL.04-AF-4793 from East to West through Punnapra Junction beach road. At about 300 mtrs west of punnapra junction the motor cycle hit on a paver machine which was parked on the road. Shemil Thomas sustained injuries and succumbed to the same. A case was registered as Crime No.1148/2019 by Punnapra Police. The motor cycle was insured with the opposite party M/s National insurance company Ltd and the premium collected as Rs.1,372/- including Rs.295/- towards personal accident cover of Rs. 15,00,000/-. A claim was lodged before the opposite party by the complainant. However it was repudiated as per Ext.B3 letter dtd. 20/7/2020. The reason stated for repudiating the claim is that deceased was riding the motor cycle violating Sec. 128 of the Motor Vehicles Act. According to the opposite parties along with deceased there were two pillion riders in the motor cycle and so there was violation of Motor Vehicles Act. Hence the claim was repudiated, on a contention that there was policy violation. Ext.B1 is the policy along with conditions. Condition No.IMT-17.2 reads as follows:-
“No compensation shall be payable in respect of death or injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) and accident happening whilst such person is under the influence of intoxicating liquor or drugs.”
13. So it can be seen that as per policy condition claimant is not entitled if the accident occurred with intentional self injury or the rider was under the influence of intoxicating liquor or drugs. Here in this case the said condition is not applicable. Ext.A1 is the Final report filed by the Police Sub Inspector, Punnapra. On a reading of Ext.A1 it is revealed the accident occurred when the motor cycle hit on a paver machine which was parked at the road. The only contention raised by the learned counsel appearing for the opposite party is that the claim was disallowed since there was violation of Sec. 128 of Motor Vehicle Act. From Ext.A1 charge sheet also it is revealed that there were two pillion riders who are cited as CW2 and CW3, Sebastain and Dibin alias Ligo respectively. But as stated above from Ext.B1 it is revealed that it is not a violation of the policy condition. From Ext.B1 it is seen that an amount of Rs.295/- was collected as compulsory Personal accident cover (Owner/driver). Admittedly deceased Shemil Thomas was the registered owner of the vehicle at the time of the accident he was riding of the vehicle. In said circumstances according to us opposite party has no authority to repudiate the claim on a contention that there was violation of S.128 of Motor Vehicles Act, especially because such a condition is not mentioned in Ext.B1 policy conditions. As held by the Hon’ble Supreme Court in OM Parakash Vs. Reliance General Insurance and Anr. on 4/10/2017 in Civil Appeal No. 15611 of 2017.
“Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy –holders in the insurance industry. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.”
14. In said circumstances we are of the view that the complainant is entitled for the PA cover of the deceased Shemil Thomas.
Complainant is claiming an amount of Rs. 1,00,000/- on account of mental agony and pain and for the loss of valuable time. The accident occurred on 6/10/2019 at 10.15.PM and Ext.A1 charge sheet shows that Shemil died immediately after the accident. Though claim form was submitted in time, it was not considered by the opposite party on a contention that there was a violation of Sec. 128 of Motor Vehicle Act. Ext.A7 registered notice was sent by the complainant on 15/7/2020 and thereafter on 20/7/2020 the claim was repudiated as per Ext.B3 letter. Hence it can be seen that there was some delay in processing the claim which will cause mental agony to the complainant. Hence we are of the opinion that complainant is entitled for compensation and we are limiting the same to Rs.25,000/-. These points are found accordingly.
15. Point No.5:-
In the result complaint is allowed in part.
A) Opposite parties are directed to pay an amount of Rs. 15,00,000/- (Rupees Fifteen lakhs only) to the legal heirs of deceased Shemil Thomas along with interest @ of 9% from the date of complaint ie, on 27/8/2020 till payment. The amount will be disbursed on production of legal heir ship certificate. PW1 is authorised to collect the amount and distribute among legal heirs.
B) Complainant is allowed to realize an amount of Rs. 25,000/- (Rupees Twenty five thousand only) as compensation from the opposite parties
C) Complainant is allowed to realize an amount of Rs. 2000/- (Rupees Two thousand only) as cost from the opposite parties.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 19th day of November, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/- Smt. Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - Thomas V.J (Complainant)
Ext.A1 - True copy of Final Report
Ext.A2 - True Copy of Post Mortem Certificate
Ext.A3 - True copy of Insurance Policy
Ext.A4 - True copy of RC Book
Ext.A5 - True copy of Driving Licence of Shemil Thomas
Ext.A6 - True copy of repudiation Letter dtd 17/6/2020
Ext.A7 - Copy of Reply Notice dtd. 15/7/2020
Evidence of the opposite parties:-
Ext.B1 - Copy of Policy with Policy Condition
Ext.B2 - Copy of FIR
Ext.B3 - Copy of Claim Repudiation Letter dtd. 20/7/2020
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
