IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM.
Dated this the 31st day of March, 2021
Present: Sri. Manulal V.S., President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
CC No.138/19(filed on14/8/19)
Complainant : Janova Solaman,
W/o Solaman,
898, Sony villa, Vazhicherry ward,
Mullackal Padinjare Near Collectorate,
Ambalapuzha, Alappuzha Dist.688001
2) Solaman,
S/o Stephen, 898, Sony villa,
-do-
(Adv. Akash K.R)
Vs.
Opposite parties : 1) The Divisional Manager,
National Insurance Co.Ltd.,
CSI Square, Baker Hill,
Kottayam-686001.
(Adv. Agi Joseph)
2) St.Mary’s Jacobite Cyrian Cathedral,
Manarcadu, Manarcadu PO,
Kottayam.
Repted by its Managing Trustee.
ORDER
Sri. K.M. Anto, Member
This complaint is filed under Section 12 of the Consumer Protection Act 1986.
The case of the complainant is as follows.
The complainants are the legal heirs of late Manu Solomen aged 10 years, who died due to drowning during the Ettunombu Perunnal in the holy pond of St.Mary’s Jacobite Syrian Cathedral, Manarcadu.
The second opposite party had insured their entire public liability with respect to the Ettunombu Perunnal with the first opposite party starting from 01-09-2017 to the midnight of 08-09-2017. The second opposite party had paid premium of Rs.11,448/- as premium for the said public liability non-industrial risk policy.
On 08-09-2017 at around 05.00 am the complainant’s son Manu Solamon aged 10 years was taken for bath in the Holy pond in the church premises accidently fell in to the holy pond and died due to drowning, Manacadu police have registered a crime in Number 1202/2017 for unnatural death.
Since the second opposite party has insured the uninvited events with the 1st opposite party. The 1st opposite party is liable to indemnify the complainants for the loss sustained to them. The complainants, devotees are the beneficiaries to the service of insurance availed by the 2nd opposite party from the 1st opposite party.
But even after intimation from the 2nd opposite party, the 1st opposite party has not indemnified the complainants. The legal notice issued by the complainants on 22-02-18 was received by the opposite party on 25-03-18. But the opposite party had not disbursed the compensation amount to the complainants. The act of the opposite parties in not settling the genuine claim of the complainants amount to deficiency in service. Hence this case.
On admission of the complaint, copy was duly served to the opposite parties. The 1st opposite party filed their version.
As per the version of the first opposite party, they had issued a public liability insurance policy to the 2nd opposite party for covering the Ettunombu perunnal. This policy indemnify the insurer against the legal liability arising from the fire display, for the procession to Manarcadu junction and church, church premises, maidan and surrounding properties. There are no incident or accident covered under the policy. The complainants has not made any claim to the 1st opposite party by submitting a claim form. The complainants or insured has not informed any such incident immediately after its occurrence. This is a violation of the policy conditions. This petition has filed only after 12 months of the incident. As per the terms and conditions of the policy a claim has not been put forward within 12 months the said claim shall be deemed to have been abandoned and shall not thereafter be recoverable. Hence the petition may be rejected. There is no deficiency of service on the part of the opposite party.
The complainant filed proof affidavit and marked exhibits A1 to A4 documents. The 1st opposite party filed proof affidavit and marked Ext.B1 document. The second opposite party failed to file their version or to appear before the commission to defend their case. The 2nd opposite party was set exparte.
On going through the complaint, proof affidavit of the complainant and version of the 1st opposite party and evidence on record, we would like to consider the following points.
- Whether there is deficiency in service from the part of opposite parties?
- If so what are the reliefs and costs?
For the sake of convenience we would like to consider Point No.1 and 2 together.
On going through the complaint, proof affidavit of the complainant, version of the 1st opposite party and evidence on record, it is clear that complainants son Manu Solaman aged 10 years was taken for bath in the Holy Pond at St.Mary’s Church Premises accidently fell into the pond and died due to drowning on 08-09-2017, 05 a.m. Ext.A1 is the death certificate issued by the Manacadu Grama Panchayat which shows that the place of death is the pond in St.Mary’s church, Manarcadu and as per Ext.A2 post mortem certificate the opinion as to the cause of death is that post mortem findings are constituent with death due to drowning.
The 2nd opposite party has insured their entire public liability with the 1st opposite party vide Ext.B1 Insurance Policy. The period of insurance is from 00:00 01/09/2017 to midnight of 08/09/17. The second opposite party had paid premium of Rs.11,448/- for the public liability non industrial risk policy.
As per the policy conditions, indemnity applies only to claims arising out of accident during the period of insurance first made in writing against the insured during the policy and insured is indemnified in accordance with the operative clause for and / or arising out of injury etc. Injury means death, bodily injury, illness or disease of or to any person. Accident is defined as a fortuitous event or circumstances which is a sudden, unexpected and unintentional including resultant continuous, intermittent or repeated exposure arising out of the same fortuitous event or circumstance.
From the above discussed evidence the death of Solaman on 8/9/17 will come under the definition of injury which accidently occurred within the period of insurance and was eligible for compensation under the policy.
But as per the General conditions of the Ext.B1 policy the condition(9.1)- The Insured shall give written notice to the Company as soon as reasonable practicable of any claims made against the Insured (or any specific event of circumstances that may give rise to a claim, being made against the insured) and which forms the subject of indemnity under this policy.
Even though the complainants deposed that even after intimation from the 2nd opposite party the 1st opposite party has not indemnified the complainants, no evidence is adduced by the complainants to show that a bonafide claim form was submitted before the 1st opposite party either by the 2nd opposite party or by thes complainants. The complainants failed to prove with cogent evidence the act of deficiency of service on the part of the opposite parties. Hence point No.1 is found in favour of the opposite parties. The complaint is dismissed.
Pronounced in the Open Commission on this the 31st day of March, 2021
Sri. K.M. Anto, Member Sd/-
Sri. Manulal V.S., President Sd/-
Smt. Bindhu R. Member Sd/-
Appendix
Exhibits marked on the side of the complainant
A1-Copy of the death certificate dtd 25/9/17
A2-Copy of Postmortem certificate dtd 8/9/17
A3-Copy of lawyer’s notice dtd 22/2/18
A4-Series of AD card(2 Nos.)
Exhibits marked on the side of opposite parties
B1-Copy of policy with conditions
By Order,
Senior Superintendent
