IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 31st day of December, 2016
Filed on 07.11.2015
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.326/2015
between
Complainants:- Opposite Party:-
1.Smt. Tessy National Insurance Co. Ltd.
W/o late Augustine Joseph Ernakulam Branch No.1
Vakkekalathil South Junction, Chittoor Road
Eramalloor P.O., Cherthala Kochi – 682 016
Alappuzha – 688 537 Represented by its Manager
(By Adv. T.S. Suresh)
2. Joseph Augustine
S/o late Augustine Joseph
-do- -do-
3. Twinkle Augustine
D/o late Augustine Joseph
-do- -do-
(By Adv. P. Rajesh – for complainants)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainants are the legal heirs of deceased Augustine Joseph who was a holder of policy Nos. 570104/31/13/6300008976 and 570104/48/13/2100004182 issued by the opposite party. Policy No. 570104/31/13/6300008976 is a general vehicle insurance covering 2 lakhs of personal accident for the owner cum driver of the vehicle Policy No. 570104/48/13/2100004182 is a personal accident cover for One lakh. Augustine was the owner cum driver of Mahindra Alfa Auto bearing registration No. KL-32-E 3709. The said Augustine while driving the said vehicle through Kondannoor – Petta road, when he reached near Marad PS Mission Hospital met with an accident at about 12.30 midnight on 14.02.2014. He sustained certain injuries. On 23.2.2014 he succumbed of the injuries at Medical College Hospital, Alappuzha. First complainant made the claim before the opposite party, but the opposite party repudiated the claim stating that the deceased Augustine was under the influence of alcohol at the time of accident. The deceased Augustine was not under the influence of alcohol at the time of accident. The act of the opposite party is a dereliction of service and it amounts to unfair trade practice. Hence the complaint is filed.
3. The version of the opposite party is as follows:-
There is no illegal acts, unfair practice and deficiency of service, fraud and foul play by the opposite party. All the actions done by the opposite party is legal, fair and in the accordance with the policy conditions. At the time of alleged accident deceased Augustine was driving the vehicle under the influence of alcohol and it is clear from the medical records and the police case records. While extension was under the treatment at Taluk Headquarters Hospital, Thrippunithura and the doctor issued a certificate of drunkness vide No.1140 dated 11.4.2014. The repudiation of the claim is in accordance with the policy condition and hence there is no deficiency of service from the part of the opposite party.
3. The first complainant was examined as PW1. Documents produced were marked as Exts.A1 and A2. The opposite party was examined as RW1. Documents produced were marked as Exts.B1 to B7.
4. The points came up for considerations are:-
- Whether there is any deficiency in service on the part of the opposite party?
- Whether the complainants are entitled to get relief and cost?
5. It is an admitted fact that opposite party had issued a policy to Autorikshaw No. KL-32-E 3709 through policy No. 570104/31/13/6300008976 and in respect of traffic accident policy No. 570104/48/13/2100004182. Complainants are the legal heirs of deceased Augustine Joseph who died on 14.2.2014 due to an accident while driving his Autorikshaw. The allegations of the complainants is that when they claimed the insured amount it was repudiated by the opposite party by stating that the deceased Augustine was under the influence of alcohol at the time of accident. According to the complainants, the deceased Augustine was not under the influence of alcohol at the time of accident. Opposite party filed version stating that as per the medical records and police case records, the deceased Augustine was driving the vehicle under the influence of alcohol and he was driving without driving license. In order to substantiate the contention of the opposite party they produced the Police records which marked as Ext.C1 and the wound certificate marked as Ext.B2. On verifying Ext.C1 report, we came to see the certificate of drunkness which issued after examining the deceased. In the said certificate it is noted that, “the deceased Augustine Joseph had consumed alcohol.” In the wound certificate also it is stated that, “ the deceased was known by alcohol liver disease.” It is pertinent to see that the documents produced by the opposite party merely stated that the deceased had consumed alcohol. But the details about the actual amount of alcohol consumed or type of intoxicants consumed not stated anywhere, and no credible evidence produced with regard to
the same by the opposite party. In a decision reported in 2012 II CPJ 50 National Insurance Co. Ltd.
Vs. Soma Devi & others Hon’ble National Commission laid down that since the insurance company was not able to produce credible evidence to repudiate the claim by citing exclusion clause in insurance documents that the insured was intoxicated which resulted in his death the insurance company was liable to pay the assured sum. Exts.A1 and A2 show that the opposite party repudiated the claim of the complainants who claimed the policy benefits under the policy No. 6300008976 and 2100004182 as follows:-
“On going through the police reports it is observed that (Late) Mr. Augustine Joseph, who was driving the vehicle, was under the influence of alcohol at the time of accident. Payment of compensation in respect of Death whilst under the influence of intoxicating liquor or Drugs comes under the exceptions No.5 of the policy.” So it is clear from these letters that opposite party repudiated the claim of the complainants since the deceased was driving the vehicle under the influence of alcohol at the time of accident. Even though opposite party stated in the version that the deceased Augustine has no driving license at the time of accident, the claim was repudiating by the opposite party stating that the deceased was under the influence of alcohol while driving the vehicle. Moreover the complainants produced the driving license of the deceased Augustine and it shows that he had valid driving license up to 3.6.2014. It is an admitted fact that under the policy No. 6300008976 the amount allowed under the personal accident to owner cum driver is Rs.2 lakhs and under the policy No. 2100004182 the amount allowed is Rs.1 lakh. The only question to be answered is whether the opposite party can repudiate the claim of the complainants by stating that the deceased was under the influence of alcohol at the time of accident. Relying the decision of the Hon’ble National Commission in National Insurance Co. Ltd. Vs. Somadevi & others II 2012 CPJ 50 we hold that the Insurance Company was liable to pay the assured sum. The repudiation of the claim of the complainants by the opposite party amounts to deficiency in service.
In the result, the complaint is allowed. The opposite party is directed to pay Rs.3,00,000/- (Rupees three lakhs only) to the complainant with 8% interest per annum from the date of complaint till realization. The opposite party is further directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of this proceedings to the complainant. Since the primary relief is granted no further amount towards compensation. The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 31st day of December, 2016. Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Tessy Augustine (Witness)
Ext.A1 - Claim rejection letter under the policy No. 570104/31/13/6300008976
Ext.A2 - Claim rejection letter under the policy No. 570104/48/13/2100004182
Evidence of the opposite party:-
RW1 - K. Sreekumar (Witness)
Ext.B1 - True copy of the Charge sheet
Ext.B2 - True copy of the Accident register – cum – wound certificate
Ext.B3 - True copy of the breath analysis check report
Ext.B4 - True copy of the postmortem certificate
Ext.B5 - Policy schedule No. 570104/31/13/6300008976 with conditions of
the policy
Ext.B6 - Policy schedule No. 570104/48/13/2100004182 with conditions of ]
Traffic accident policy
Ext.B7 - True copy of the letter dated 24.3.2015
Ext.C1 - Police records
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- pr/-
Compared by:-
