State Consumer Disputes Redressal Commission
Shakargiri J. Meghnathi vs Iffco - Tokiyo General Insuarnce Co.L ... on 30 September, 2022
Details DD MM YY
Date of disposal 30 09 2022
Date of filing 26 08 2013
Duration 04 01 09
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 04
APPEAL NO. 1987 OF 2013
1. Sankargiri Jamnagiri Meghnathi,
2. Jamnaben Sankargiri Meghnathi.
Khodiyar Nagar,
Taluka: Sutrapada,
District: Junagadh. ...Appellant.
V.s
Iffco Tokiyo General Insurance Co. Ltd.
Capital Complex, 2nd Floor,
Vithalwadi,
Bhavnagar. ...Respondents.
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BEFORE: Mr. I. D. Patel, Judicial Member
Dr. J. G. Mecwan, Member.
APPERANCE: Mr. V. M. Pancholi L.A. for the appellant,
Mr. R. P. Raval L.A. for the respondent.
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ORDER BY Mr. I. D. PATEL, JUDICIAL MEMBER.
JUDGMENT
1. Being aggrieved by and dissatisfied with the judgment and order dated 30.04.2013 rendered in Case No. 3/2012 by the ld. Consumer Disputes Redressal Forum, Bhavnagar, appellants/original complainants have filed present appeal against the opponent Insurance Company before the State Commission questioning the legality and propriety of the impugned order as per the provision of Section 15 of the Consumer Protection Act. Hence, for the sake of the convenience, parties to the present appeal are hereinafter referred to by their original nomenclature/status.
2. The brief facts of the complainant complaint before the Ld. Dist. Forum, Bhavnagar, are that the complainants are the parents of the deceased K.Navlakha A/13/1987 Page 1 of 7 Prbhatgiri Shankargiri who was serving as a cleaner cum conductor on truck No. GJ10W7282 belongs to Manojbhai Virjiibhai Kataliya. It is further, the case of the complainants that on 27.06.2010 the said truck was driven by truck driver Yusufbhai Dadabhai Sumra and when the said truck reached near cross road of Khatraj, at about 12p.m. deceased Prabhatgiri thrown off from the truck with the result thereof he sustained grievous injury on head and the other part of the body therefore, he was initially admitted in the Nadiad, Civil Hospital for the treatment and thereafter, he was transfer to Civil Hospital Ahmedabad, and on 02.07.2010 during the course of the treatment Prbhatgiri died, for that police complaint filed before the Mehmdabad Police Station.
3. It is the further, the case of the complainant that the opponent owner of the truck had taken the Insurance Policy for the period of 20.02.2010 to 19.02.2011 from the opponent Insurance Company for the personal accident of cleaner cum conductor by paying premium of Rs.25 for Rs. 2,00,000/-. It is the further the case of the complainant that thereafter, the complainant submitted necessary paper to the opponent for payment of the claim amount as per the Insurance Policy to the complainant but in spite of repeated reminders made by the complainants. The Insurance Company has not paid any amount to the complainant, therefore, the complainants have filed the complaint under the Consumer Protection Act. before Ld. District Forum, Bhavnagar, claiming Rs. 2,00,000/- with the interest at the rate of 12% from the opponents and complainant has also claimed Rs.50,000/- for the mental harassment and Rs.10,000/- for the cost of litigation.
4. That the ld. Forum issued notice to the opponent and opponent Insurance Company appeared through Ld. Advocate Akshaybhai Oja and filed written statement against complaint, denying all the facts stated in the complaint. Furthermore, Insurance Company has also categorically stated in their written statement that complainant has not come with the clean hands and complainant has suppressed the materially fact in the complaint and therefore, the complaint filed by the complainant is not maintainable. It also further, submitted by the Insurance Company that this forum has no jurisdiction to decide and hear the complaint of the complainant and therefore, Insurance Company prays for the dismissal for the complaint of the complainant.
5. After hearing both the sides and after perusal of the material on record the ld. District Forum, Bhavnagar, is pleased to dismissed the complaint of the complainant vide order dated 30.04.2013.
6. Being aggrieved and dissatisfied by the said impugned order of the ld.
District Forum, Bhavnagar, the appellant-original-complainant have filed the present appeal on the ground stated in the appeal memo.
K.Navlakha A/13/1987 Page 2 of 77. Heard the ld. Advocate of the appellant-original-complainant Mr. V. M. Pancholi and ld. Advocate Mr. R. P. Raval on behalf of the Insurance Company. Ld. Advocate Mr. V. M. Pancholi on behalf of the appellant complainant stated that as per the impugned order passed by the Ld. District Forum, Bhavnagar, the complaint of the complainant is dismissed on the ground of suppression of the petition filed by the complainant under the Workman Compensation Act. before the Labor Court, Junagadh. It is further, submitted by the ld. Advocate Mr. V. M. Pancholi, that as per the Insurance Policy of the opponent Insurance Company which is produced at page 96 the owner of the truck in question paid Rs. 25 premium for P.A (personal accident) for paid driver/cleaner/conductor and owner of the vehicle has also paid Rs. 75 premium for L.L to employee. So, as per the submission of the ld. Advocate Mr. V. M. Pancholi the complainant have filed the Consumer Complaint before the ld. District Forum as per the premium of Rs. 25 paid by the owner of the vehicle for personal accident of the driver/cleaner/conductor and complainant had filed the Workman Compensation Application before the Labor Court, Junagadh, as per the premium paid of Rs. 75 for legal liabilities to employee. So, as per the submission of Ld. Advocate Mr. V. M. Pancholi as per the different amount of premium paid by the owner of the vehicle the complainants have legitimately right to filed Consumer Complaint as well as Workman Compensation Petition for getting the amount of Compensation and there is no any legal bar in two separate proccedings. It is further, submitted by the ld. Advocate Mr. V. M. Pancholi that merely complainant have not stated in the Consumer Case that they have filed petition under the Workman Compensation Act. cannot be said to be a material suppression for dismissal of the complainant complaint and it is also further, submitted by the Ld. Advocate Mr. V. M. Pancholi, that Consumer Forum has not observed in the impugned order that because the complaint has filed the complaint under the Workman Compensation Act. complainant is not entitle to get any amount of compensation as per the provision of the Consumer Protection Act. and therefore, as per the submission of the Ld. Advocate Mr. V. M. Pancholi the impugned order passed by the ld. Consumer District Redressal Forum and the findings thereof are perverse and erroneous hence same requires to be quashed and set aside in this appeal by allowing the complaint filed by the complainant and accordingly he has submitted to allow the appeal filed by the opponent original complainant..
8. Per contra ld. Advocate Mr. R. P. Raval on behalf of the Insurance Company has stated that as per the Policy in question which is produced at page 96. The owner of the vehicle had paid Rs. 25 premium for personal accident for paid driver and cleaner and owner had paid Rs. 75 K.Navlakha A/13/1987 Page 3 of 7 premium for legal liability to employee that means that Rs. 75 premium is paid by the owner of the vehicle not for the paid driver and cleaner but for the other employee. So, as per the submission of ld. Advocate Mr. R. P. Raval when the complainant have filed the petition under the Workman Compensation Act. for getting the amount of Insurance then he has no legal right to file the Consumer Complaint under the Consumer Protection Act. So, as per the submission of ld. Advocate Mr. R. P. Raval the complainant cannot get the double remedy for getting the amount of Insurance under two different forum i.e One under the Consumer Protection Act. and another under the Workman Compensation Act. not only that as per the submission of ld. Advocate R. P. Raval the complainant has also not stated in the Consumer Complaint that he filed the separate petition under the Workman Compensation Act. before the Labor Court, Junagadh, and that suppression can be said to be material suppression and therefore, also the finding recorded by the ld. Consumer Forum, Bhavnagar, while dismissing the complaint of the complainant are just and proper. That the ld. Advocate Mr. R. P. Raval has also place reliance upon the decision of the Gujarat State Consumer disputes redressal Commission of appeal No. 1477 of 2013 of the case of Mohanbhai Tapubhai Gohil vs. IFFCO Tokyo General Insurance Company Ltd. and also place reliance upon the decision of III (2007) CPJ 32 of the Himachal Pradesh State Consumer Disputes Redressal Commission in case of Sham Gopal Sharma vs. National Insurance Co. Ltd. and submitted that the complainant is not a Consumer as per the provision of Section 2(1)(d) as per the Consumer Protection Act. and therefore the complaint filed by the complainant is not maintainable and complainant is only entitled to take recourse of the Workman Compensation Act which he has already availed by filing separate petition before the ld. Labor Court. Ld. Advocate Mr. R. P. Raval has also submitted that as per the decision of the IV (2014) CPJ 264 (NC) of the IFFCO Tokyo General Insurance Co. Ltd. vs. Sheetalben Nileshbhai Surti that when the complainant filed the petition under the Workman Compensation Act then complainant has no right to filed Consumer Case before the Consumer District Redressal Forum, Bhavnagar, simultaneously. Furthermore, ld. Advocate Mr. R. P. Raval has also submitted that as per the as per the decision of the I (1994) CPJ 190 Punjab State Consumer Disputes Redressal Commission, Chandigarh in case of Kulwant Kaur vs. Punjab State Electricity Board when complainant filed petition under the Workman Compensation Act. on identical grounds then the complaint under the Consumer Protection Act is not maintainable. So as per the submission of the ld. Advocate Mr. R. P. Raval impugned order passed by the Consumer Disputes Redressal Forum, Bhavnagar, dismissing the K.Navlakha A/13/1987 Page 4 of 7 complaint of the complainant is just and proper and appeal filed by the appellant deserves to be dismissed.
9. That we have considered the arguments advanced by the Ld. Advocate of the parties and we have also gone through the impugned order passed by the Ld. Consumer Disputes Redressal Forum and we have also given our thoughtful consideration in great details.
10. That herein this appeal a short question involved is that whether the complainant is a Consumer and he has locus to file the complaint when they have already filed separate application under the Workman Compensation Act. before the Labor Court, Junagadh, for getting personal accident Insurance amount on the basis of the premium paid in the Policy in question by the owner of the truck and whether the complaint can be dismissed on the ground of the suppression of material fact and as such impugned order passed by the ld. Consumer District Redressal Forum are perverse and erroneous or not.
11. Admittedly the appellant are the original complainant who happens to be the legal heirs of the deceased workman Prbhatgiri who was working as a cleaner on truck No. GJ1W7282 died in vehicular accident on 27.06.2010. That it is also an admitted fact that owner of the truck had taken Insurance Policy from the opponent Insurance Company for personal accident of the paid driver/cleaner/conductor and other employee by paying premium of Rs. 25 and Rs. 75 and as per the Policy which is produce at page 96 the owner of the truck had paid premium of Rs. 25 for personal accident of the paid driver/cleaner/conductor and that owner of the vehicle had paid Rs. 75 premium for legal liability for L.L to employees.
12. That if we perused the impugned order of the Ld. District Forum, Bhavnagar, and more particularly para 8 and 9 it appears that ld. District Forum, Bhavnagar, has observed that the complainants have also filed for another fatal application No. 11/2010 before the Junagadh, Labor Court under the Workman Compensation Act.against the opponent for getting Insurance amount but the said fact is not stated by the complainant in the complaint that means the complainant has suppress the material fact. Furthermore, ld. Forum has also observed in para 10 of the impugned order that since the complainant have filed another application under the Workman Compensation Act against the opponent for getting amount of the Insurance then the complainants have no legal right to claim the amount of Rs. 2,00,000/- under the Consumer Protection Act. against the opponents. That it is the submission of the ld. Advocate Mr. V. M. Pancholi that complainants have filed application or petition before the Workman Compensation Act on the basis of the premium paid by the owner of Rs. 75 and they have filed the Complaint before the ld. District Forum, Bhavnagar, as per the premium of Rs. 25 K.Navlakha A/13/1987 Page 5 of 7 paid by the owner of the truck and they have also mentioned the said fact in the Consumer Complaint but if we perused the W.C Application No. 11/2010 which is produced on page 45 wherein the complainant has not stated that they have filed this petition on the basis of premium Rs. 75 paid by the owner of the vehicle. So, we can very well presumed that the Workman Compensation Act Application as well as the complaint under the Consumer Protection Act filed by the complainant only on the basis of the Rs. 25 premium paid by the owner of the vehicle as per the Policy. That as per the Policy Rs. 25 premium paid by the owner of the vehicle only for the personal accident for driver/cleaner/conductor and Rs. 75 premium paid for legal liabilities to employees that means the owner of the vehicle had not paid two premium that is premium of Rs. 25 and Rs. 75 for driver and cleaner but according to our view Rs. 75 premium paid by the owner of the vehicle for other employees of the owner except the driver and cleaner. So, it cannot be believe that both the premium i.e the premium of Rs. 25 and premium Rs. 75 paid by the owner for the personal accident of the driver/cleaner/conductor as per the submission of the Ld. Advocate Mr. V. M. Pancholi. Therefore, according to our considered view when complainant had already filed Workman Compensation Application before the Labor Court, Junagadh, before filing the Consumer Complaint for getting the Insurance amount of personal accident then the complainant have no legal right to file simultaneously complaint under the Consumer Protection Act against the opponent on the basis of the premium of Rs. 25 paid by the owner of the vehicle as per the Policy. That even if we perused the observation of the ld. District Forum, Bhavnagar, in the impugned order, the Ld. District Forum has also specifically observed that when the complainant have filed the application under the Workman Compensation Act before the Labor Court, Junagadh, the complaint filed under the Consumer Protection Act is not maintainable.
13. Even if we perused the decision of the Hon'ble Himachal Pradesh State Consumer Disputes Redressal Commission in Sham Gopal Sharma vs. National Insurance Co. Ltd. reported in III (2007) CPJ page 32 and as per the decision of the Gujarat State Consumer Disputes Redressal Commission in appeal No. 477 of the 2013 in case of Mohanbhai Tapubhai vs. IFFCO General Insurance Co. Ltd. when the complainants have filed petition under the Workman Compensation Act he cannot be said to be a Consumer for filing complaint under the Consumer Protection Act against the opponents. And therefore, also the complaint filed by the complainant as per the Consumer Forum is not maintainable. Furthermore, as per the decision of the Hon'ble National Commission in IFFCO Tokyo General Insurance Co. Ltd. vs. Sheetalben Nileshbhai reported IV (2014) CPJ 264 when the complainant filed the K.Navlakha A/13/1987 Page 6 of 7 complaint before the Workman Compensation Commission before the Labor Court, Junagadh, he has no right to filed the complaint before the Consumer Forum under the Consumer Protection Act simultaneously. Even as per the decision of the Hon'ble Punjab State Commission in Kulwant Kaur vs. Punjab State Electricity Board reported in I (1994) CPJ 190 when the complainant had filed complaint on identical grounds under the Workman Compensation Act. complainant has no right to filed complaint as per the provision of the Consumer Protection Act. So, in view of the above cited decisions and in view of the fact that when the complainant have filed the separate petition for getting amount of the Insurance on the basis of premium Rs. 25 before the Labor Court, Junagadh, the complainant have no right to file the complaint under the Consumer Protection Act against the opponent and therefore, according to our considered view the findings recorded by the Ld. Consumer District Redressal Forum, Bhavnagar, in Consumer Case No. 3/2012 dated 30.04.2013 and impugned order passed by the Ld. District Forum, Bhavnagar, are just and proper and the said impugned order requires to be confirmed in this appeal and accordingly the appeal filed by the complainant deserves to be dismissed and therefore, we passed the following final order.
ORDER
1. The present Appeal No. 1987 of 2013 filed by the present appellant original Complainant is hereby dismissed.
2. The impugned order passed by the ld. Consumer Disputes Redressal Forum in case No. 3/2012 dated 30.04.2013 dismissing the complaint of the complainant is hereby confirmed.
3. No order as to costs.
4. Registry is hereby instructed to send a copy of this order in PDF format by E-mail to learned District Forum, Bhavnagar, for taking necessary action.
5. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open Court today on 30th September 2022.
[Dr. J. G. Mecwan] [Mr. I. D. Patel]
Member. Judicial Member.
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