Date of filing:14.08.2018

                                                               Date of Disposal:09.03.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 9^th DAY OF MARCH, 2023

CONSUMER COMPLAINT NO.1372/2018

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Smt.Manjula B.P,

W/o late Srinivas R.C,

Aged about 38 years,

Residing at No.85/2,

Near Sullapurdha Amma Temple,

Rep by Sri.Nanda Kumar H.J, Advocate

The Manager,

Reliance General Insurance Company Limited,

Bangalore-560 011.……  OPPOSITE PARTY

OP rep by Sri.B.C.Shivanne Gowda, advocate

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-11 and 12 of Consumer Protection Act, 1986 seeking for a direction to the opposite party to pay an amount of Rs.12,10,000/- to the complainant along with interest from the date of petition till the realization.

2. It is not in dispute that the complainant’s husband by name R.C.Srinivas was the R.C.owner of Bajaj Tempo Travellers Ambulance bearing registration No.KA-01-D-4885 and the same was insured with policy No.1405562343000030 having validity from 04.03.2016 to 03.03.2017.  Further, it is not in dispute that on 29.08.2016 while the complainant’s husband was in the said Ambulance, the vehicle had met with an accident resulted the right side tyre burst, thereby the driver of the Ambulance lost control and the driver as well as the husband of the complainant died at spot.  Further, it is not in dispute that the insurance policy was a package policy and for owner-driver, personal accident has covered for a sum of Rs.2,00,000/-.  Further, it is not in dispute that the opposite party had repudiated the claim made by the complainant.

3. It is the further case of the complainant that in spite of several request been made, the opposite party had postponed to pay the benefit on one or the other pretext.  Further, the complainant is entitled for Personal Insurance Claim of Rs.10,00,000/- and a sum of Rs.2,00,000/- towards mental agony and torture and a sum of Rs.10,000/- towards correspondence.

4. It is the further case of the opposite party that on information been received from the complainant on 20.09.2016 with regard to the accident occurred on 29.08.2016, the opposite party got inspected the Ambulance through a surveyor.  Further, on the verification of the documents it was found that the driver of the Ambulance/tempo driver was not holding valid driving licence to drive the vehicle and he was having the licence to drive light motor vehicle.  Hence, the opposite party had repudiated the claim.  Further, at the time of accident one Sri.Raghavendra C.D was the driver of the vehicle and he was authorized to drive only the LMV and not the transport vehicle.  Further, the owner of the insured vehicle was not driving the insured vehicle at the time of alleged accident.  Therefore, the complainant is not entitled to get any personal accident claim under the policy and the complainant did not file any claim form with the opposite party seeking personal accident claim.  Hence, there is no deficiency of service on the part of the opposite party and sought to dismiss the complaint. 

5. To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P10 documents.   The Legal Claims Manager of opposite party has filed affidavit in the form of his evidence in chief and got marked EX.R1 to R5 documents. 

6. Learned counsels for both the parties have filed written arguments with citations. 

         7. The points that would arise for consideration are as under:

   i) Whether there is deficiency of service on the part of the opposite party ?

  ii) Whether the complainant is entitle for the 

    compensation as sought ?

      iii) What order ?

  8.  Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

9.POINT NO.1:- The complainant (PW1) and Legal Claims Manager (RW1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  EXR4 is the repudiation letter.  The opposite party has repudiated the claim on the ground that the driver of the Ambulance was not holding effective driving licence.  The opposite party has produced extract of driving licence vide EX.R2 relates to the driver of the vehicle at the time of accident.  On perusal of the same, it appears that he was authorized to drive light motor vehicle.  Further, the complainant has also produced xerox copy of the licence relates to the driver of the vehicle at the time of accident vide EX.P9.  Further, it is not in dispute that the said driver also died on spot in the result of the accident.  The said driving licence is valid from 27.09.2014 to 26.09.2034(NT).  He has also obtained a learners licence that is to drive LMV-Transport-PSV-Cab and the same was valid from 24.08.2016 to 23.02.2017.  The accident took place on 29.08.2016.

10. It is the contention of the learned counsel for the complainant that the “Light motor vehicle” would include a transport vehicle in case the gross vehicle weight of either of which does not exceed 7500 kg.  It also includes motor car, tractor or a road roller, the “un-laden weight” of which does not exceed 7500 kg.  In support of the contention, counsel relies the judgment reported in (2017) 14 Supreme Court Cases 663, in Civil Appeal Nos.5826/2011 with connected cases dt.03.07.2017 in between Mukund Dewangan V/s Oriental Insurance Company Limited.  In the said judgment, it is held that light motor vehicle would include transport vehicle as per the weight prescribed in Section-2(21) read with Section-2(15) & 2(48) of IMV Act.  Further, counsel for complainant contends that the LRs of the deceased driver has also been compensated by the opposite party herein in the petition filed under Section-10 of Employees Compensation Act, 1923.  He has produced EX.P7 certificate/copy of the said order.  Further the said order has been confirmed by the Hon’ble High Court of Karnataka in Miscellaneous First Appeal No.5651/2018 vide EX.P8.  The certified copy of the order passed by the Hon’ble High Court of Karnataka is also produced.  EX.R2 & P9 are the driving licence relates to deceased driver of the vehicle at the relevant time.    EX.R2 and P9 are one and the same.

11. On perusal of EX.R3 ‘B’ register extract relates to the subject vehicle, it appears that the unladen weight of the vehicle was 2145 KG as contemplated under Section-IMV Act.  Hence, there is no merit in the contention of the learned counsel for the opposite party that the driver of the vehicle at the relevant time was not holding effective driving licence to move the said vehicle.  Hence, there is no merit in the said contention.

12. It is the further contention of the opposite party that at the time of accident, the insured was not driving the vehicle.  Hence, the complainant being the LRs of the deceased insured is not entitled for compensation.  Admittedly, the insured was not driving the vehicle at the time of accident.  It is the defence taken in the version filed that the opposite party/company undertakes to pay compensation to the insured in case of bodily injury/death sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting ‘into/dismounting from or travelling in the insured vehicle as a’ co-driver caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in.  It is the contention of the learned counsel for the complainant that at the time of accident, the insured was driving in the said vehicle as a               co-driver.  It is not in dispute that at the time of accident, the insured was travelling in the vehicle.  In support of the contention that the insured was a driver of the vehicle the complainant has produced notarized copy of the driving licence stands in the name of the deceased insured.  The said licence was in force from 18.04.2009 to 20.06.2027 and it is to drive the Light Motor Vehicle (NT).  The said document has not been challenged by the opposite party.  Hence, it could be inferred that the deceased insured was a co-driver during the relevant time of the subject vehicle.  Hence, there is no merit in the contention of the learned counsel for the opposite party. 

13. Only on these points, the opposite party had repudiated the claim of the complainant.  For the above said reasons, the opposite party ought not to have repudiated the claim as per EX.R4.  Therefore, there is deficiency of service on the part of the opposite party in not honouring the claim.  Accordingly, we answer this point in affirmative.

14.POINT No.2:-The complainant claimed a sum of Rs.12,10,000/- with interest at the rate of 21% p.a from the date of petition.  It is not explained as to how the opposite party is liable to compensate that much of amount.  There is no dispute with regard to the death of the insured in the result of the accident.  Further, the complainant has produced EX.P3 PM report, Inquest Report, IMV report.  EX.P5 is the death certificate relates to the insured. On perusal of the EX.R1 insurance policy, it appears under limits of liability that PA cover for owner-driver under Section-IV CSI was of Rs.2,00,000/- and compulsory deduction of Rs.3,000/-.  Hence, we feel the complainant is entitle for a sum of Rs.1,97,000/- by way of compensation as liability of opposite party.  Further, the interest claimed is highly an exorbitant one.  We feel interest at the rate of 9% p.a. is sufficient.  Further, the interest shall be paid from the date of repudiation i.e., on 15.11.2016. Further since repudiation been made, unnecessarily the complainant sustained mental agony and hardship.  Therefore, the complainant is entitle for a sum of Rs.20,000/- towards mental agony and hardship.  Further, act of opposite party made the complainant to approach this commission and the complainant has also got issued legal notice to the opposite party vide EX.P6.  Hence, the complainant is entitle for a sum of Rs.10,000/- towards litigation cost.  Accordingly, we answer this point partly in affirmative.

15.POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

ORDER

The complaint is allowed in part.

The opposite party is directed to pay a sum of Rs.1,97,000/- with interest at the rate of 9% p.a. from 15.11.2016 till realization and a sum of Rs.20,000/-  towards mental agony and hardship and a sum of Rs.10,000/- towards litigation cost. 

The opposite party shall comply the order within 30 days.   In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 9^th day of March, 2023)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainants side:

Smt.Manjula B.P, the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Copy of the first information report in FIR No.223/2016 registered by Kurnool Police for the offences u/s 337 & 304 (A) IPC along with the copy of the complaint given before the police.
2. The final report submitted by the sub divisional police office Kurnool to consider this case as abate, it is dt.29.09.2016.
3. Copy of the post mortem report.
4. The accident inspection report of assistant Motor Vehicles inspector, Kurnool.
5. The death certificate of Srinivas R.C.
6. Copy of the legal notice got issued by the complainant through her counsel to the opposite party dt.25.04.2017 and postal receipt and postal acknowledgment. 
7. Certified copy of order dt.11.04.2018 passed in ECA 19/2017 by the Hon’ble 23^rd Additional Small causes Judge, Bangalore.
8. Certified copy of the order in MFA 5651/2018 (WC) dt.10.10.2018 passed by Hon’ble High Court of Karnataka.
9. The notarized copy of the driving license of Sri.Raghavendra C.D.
10. Notarized copy of driving licence pertaining to R.C.Srinivas.

Witness examined for the opposite party side: 

Sri.Pradeep D.S, the Legal Claims Manager of opposite party has filed affidavit in the form of his evidence in chief. 

Documents marked for the Opposite Party side:

1. Copy of the insurance policy issued by the opposite party to the complainant.

2. Copy of the extract driving licence of Sri.Raghavendra C.D.

3. Copy of the B registrar extract issued by the RTO in respect of the vehicle KA.01D4885.

4. Copy of the repudiation letter sent to the opposite party under RPAD.

5. Postal receipt.

6. Copy of the survey report prepared by the Surveyor Sri.M.N.Manjunath.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•