D.O.F:05/01/2022      

                                                                                                 D.O.O:30/04/2024

IN THE CONSUMER DISPUTES  REDRESSALCOMMISSION KASARAGOD

                                  CC.02/2022

Dated this, the 30^th day of April 2024

PRESENT:

SRI.KRISHNAN.K                                         : PRESIDENT

SMT. BEENA. K.G                                      : MEMBER

Bhavya. P.M aged 29 years,

D/o Venkappa Naik,

R/at Durga Kripa,

Kallakatta, Ullodi P.O. 671123

Kasaragod Taluk and District.                          : Complainant

(Adv: Thomas D’Souza)

                                                  And

The Manager,

Cholamandalam MS General Insurance

Company Limited,

Registred Office, 2^nd Floor, “ Dare House”,

2, NSC Bose Road, Chennai – 600001.            : Opposite Party

(Adv: Balagopalan.M)

ORDER

  SMT. BEENA. K.G : MEMBER

     The brief facts of the case is that the complainant is the owner of the motor cycle bearing registration No: KL 14 Z 4110.  The Opposite party is an insurance company service provider in the field of motor vehicle insurance.  The complainant’s vehicle insured with Opposite party vide policy No: 3397/01569692/000/00.  As per the terms of the policy the Opposite party is liable to indemnify the loss of the complainant if the vehicle caused any loss to the third party.  The full coverage of the policy is Rs. 15,00,000/- in case of death or injury that may be caused to the driver cum owner of the above said vehicle.  The Opposite party collected an amount of Rs.1089 from the complainant at the time of purchase of the policy on 05/09/2020.  The Opposite party made the complainant to believe that in the event of any claim in respect of the use of the vehicle the complainant has to approach the Opposite party.  During the policy period , on 10/04/2021 the complainant’s vehicle met with a road traffic accident at a place called 55^th mile in Thekkil village, Kasaragod.  As a result, the driver cum owner of the Vehicle Mrs. Bhavya.P.M had sustained very grievous injuries.  She  sustained multiple abrasion over right leg and knee, tenderness and swelling over the wrist, bilaterally fracture of right distal radius bone, fracture of left distal radius bone, fracture right tibia bone with medial malliiolli and hospitalized at district hospital Kanhangad.   The doctors of the hospital referred the complainant to Mangalore for better treatment.  The complainant had taken to Thejaswini hospital Mangalore on 12/04/2021 and treated as in patient there.  The complainant had undergone various surgeries as part of the treatment and discharged on 17/04/2021 and is still undergoing treatment.  As a result of accident the complainant was completely disabled and bedridden.  Her movement was restricted due to heavy pain the incident was informed to Opposite party over phone and the claim has been registered by the Opposite party as per their norms to receive the policy amount Rs. 15,00,000/- but later the complainant realized that the Opposite party cheated her by not responding to the request of the complainant regarding the payment of the claim.  The complainant approached Opposite party several times to get the amount. Finally he issued a lawyer notice dated 06/10/2021 calling upon  opposite party to pay the amount.  The Opposite party neither replied nor paid the amount.  The Melparamba police registered a case in the accident as crime No: 164/2021 for the offences alleged under section 279, 338 of IPC.  The complainant alleges that the service rendered by the Opposite party to her is most deficient and as a result she suffered untold miseries stress and strain and huge loss apart from the loss of Rs. 15,00,000/- being the policy amount as per the policy.  So, the Opposite party is liable to pay, compensation of Rs. 1,00,000/- for the mental agony stress and strain suffered by the complainant due to the negligent act and unfair trade practice of Opposite party.  Therefore, the complainant is seeking to direct opposite parties to pay the policy amount of Rs. 15,00,000/-  with a compensation of Rs. 1,00,000/- with cost of the proceedings.

          The Opposite party filed version, according to them the complaint is false frivolous vexatious and not maintainable at law.  The Opposite party admitted that he had issued a policy for the vehicle bearing Reg No: KL-14 Z 4110 in the name of complainant Bhavya.P.M in subject to the terms and condition limitation and exclusion for the policy issued.  The respondents are denying their liability to pay the PA coverage of the injured as the injury alleged to be sustained does not come under the purview of personal accident cover of the policy issued.  The Opposite party had no knowledge of the accident the Opposite party was not served with the registered lawyer notice.  It is the bounden duty of the insured in the event of accident to intimate the accident to the company within 14 days and not beyond 30 days to submit the claim form in writing.  The complainant has not approached the Opposite party at any time either for informing the accident or putting forward the claim.  The liability of the company is strictly in accordance with the terms and conditions of the policy.  The complainant has not submitted any claim form in writing to the Opposite party and the company had no occasions to consider her claim by conducting investigation.  Moreover the injured had no valid driving license at the time of accident.  The complainant has not submitted any claim form, the RC of the vehicle and her driving license and other documents substantiating her claim.  As per the policy condition the driver- cum owner will avail compensation only on the following cases were the owner who sustained death of following scale of boldly injury in direct connection with the vehicle insured while the driving or mounting into /dismounting from the vehicle insured while travelling in it co- driver caused by violent external accident and visible means.  The liability as per policy condition is

1. Death 100%
2. Loss of two limbs or sight of two eyes or one limb and sight of one eye - 100

Either the complainant or the documents produced along with the complainant does not disclose any serious injury as mentioned above for maintaining the complaint. Hence the complaint is not entitled for Rs. 15,00,000/- as prayed for in the complaint.  Therefore, the complainant may be dismissed with cost.

          The complainant filed IA 107/2022 to refer the matter to medical board to access liability.  The IA is allowed and the report is filed.

          The complainant filed proof affidavit in lieu of chief examination and was cross examined by the counsel of Opposite party as Pw1.  The documents produced as marked as Ext A1 to A7 and Ext X1.  The Opposite party filed Ext B1.  Both sides heard and documents perused. 

The main question raised for consideration are

1. Whether there is any deficiency in service or unfair trade practice on the part of Opposite party in not allowing the claim. 
2. Whether the complainant is entitled for relief?
3. If so what is the relief?

The case of the complainant is that her motorcycle having valid policy met with an accident and she sustained grievous injury.  She was admitted to district hospital Kanhangad and was referred to Mangalore for better treatment.  She was admitted and treated in Thejswini hospital  Mangalore from 12/04/2021 to 17/04/2021 and is still  undergoing treatment. The complainant had undergone various surgeries as part of treatment.  The incident was informed through Opposite party company over phone and the claim has been registered by the Opposite party as per their norms to receive the policy amount of 15 Lakh the complainant approached Opposite party several times to get the payment of the amount .  The complainant caused to send a registered lawyer notice as a reminder to opposite party  on 16/10/2021.  But the Opposite party neither replied nor paid the amount.

     The Melparamba police registered a case as crime No: 164/2021 for the offences alleged under section 279 and 338 of IPC.  The attested copy of FIR and FIS dated 12/04/2021 is marked as Ext A1, the attested copy of the final report and charge sheet Dt:18/05/2021 is marked as Ext A2, the wound certificate issued by Thejaswini hospital Mangalore Dt 17/04/2021 is marked as Ext A3,  the copy of the discharge summary issued by the district hospital Kanhangad is marked as Ext A4,  the discharge summary issued by Thejaswini hospital Mangalore is marked as Ext A5,  the office copy of the lawyers notice Dt: 1/02/2021 is marked as Ext A6 and the postal acknowledgment card is marked as Ext A7.  The disability certificate issued by medical is Ext X1.

     We perused the documents produced by both parties the complainant deposed before the commission that she has submitted the claim form in writing to Opposite party the complainant entrusted her counsel to inform the accident to Opposite party the complainant is well aware of the fact that incase of accident it should be informed to the company within 14 days and before thirty days.  The complainant claimed as per general personal accident coverage.  She has submitted driving license , she is having 15% disability to right lower limb. It is not correct to say that as she doesn’t have total disability, she is unable to claim as per GPA.  The complainant has entrusted her counsel to give intimation to Opposite party within 14 days of accident.  In this to Opposite party, It is true that the complainant met with an accident and she had undergone pain and suffering due to the accident.  As the vehicle is insured, the complainant is entitled for insurance amount. She is entitled for relief.  But both parties are liable to obey the policy conditions.

          We carefully gone through the affidavit and documents produced by the complainant and version filed by opposite party.  Ext.A1 to A7 and X1 proves that the case of the complainant is genuine.  She is entitled for relief in this case.  The relief claimed by the complainant is Rs. 15,00,000/- with a compensation of Rs. 1,00,000/- along with the cost of the proceedings.  The bill produced by the complainant shows the bill amount is Rs. 1,12,075/-.  The main contention raised by opposite party is that the accident is not informed to them in time.  The complainant had entrusted her counsel to inform the opposite party.  Moreover, the police has registered FIR and final report is also given.  In such a situation, the policy holder is entitled for the policy benefit.  Considering the facts of this case, the Commission holds that the complainant is entitled for the treatment expenses along with compensation and cost.  The amount claimed by the complainant is too excessive and without any documentary evidence.  Hence the Commission allows Rs. 1,12,075/- with interest 8% from date of incident till realization and compensation of Rs. 1,00,000/- (Rupees One lakh only) along with a cost of Rs. 5,000/-(Rupees Five thousand only).

          In the result complaint is partly allowed directing opposite party to pay Rs. 1,12,075 with interest 8%  from 10/04/2021 till disbursement with a compensation of Rs. 1,00,000/- (Rupees One lakh only) along with Rs.5000/-(Rupees Five thousand only) as cost of the complainant within 30 days from the date of receipt of copy of this order.

     Sd/-                                                                                      Sd/-

MEMBER                                                                            PRESIDENT

Exhibits

A1- First Information Report

A2- Final Report

A3- Wound Certificate

A4- Discharge Summary

A5- Discharge Summary

A6- Lawyers Notice

A7- Acknowledgment card

B1- Copy of the Policy

X1- Medical Report

Witness Examined

Pw1: Bhavya. P.M

     Sd/-                                                                                           Sd/-

MEMBER                                                                                 PRESIDENT

Forwarded by Order

Ps/                                                                  Assistant Registrar