BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SRI.  P.V. JAYARAJAN                              : PRESIDENT

SMT. PREETHA G. NAIR                           : MEMBER

SRI. VIJU  V.R.                                             : MEMBER

C.C.No. 173/2021  Filed on 21/04/2021

ORDER DATED: 25/02/2022

ORDER

SRI.P.V. JAYARAJAN, PRESIDENT: 

This is a complaint filed under section 35 of Consumer Protection Act 2019 and the matter stood over to this date for consideration.After hearing the matter the commission passed an order as follows:

1. The case of the complainant in short is that the complainant is the brother and nominee in the Insurance policy of deceased Akhilesh.S.  The vehicle was insured with the opposite party Insurance Company named Magma HDI General Insurance Company Ltd.  The insurance policy number of the vehicle is P00203000045/4113/110347.  The registration number of the vehicle is KL 20 Q 0450.  The period of Insurance policy is from 22/01/2020 to 22/01/2021.  The insurance premium amount is Rs.5672.  The complainant further submitted that on 27/12/2020 around 8.15 pm, deceased Akhilesh.S was riding his Scooter named Honda Dio and collided with JCB Vehicle at NH47 near Naruvamoodu Road.  Due to the negligent driving of JCB vehicle the deceased Akhilesh sustained serious injuries and he died at the spot.  As a result he was taken to Medical College hospital where he was declared brought dead on the same day.  Postmortem was conducted on 28/12/2020.  It is further submitted that insurance claim was submitted by the complainant to the opposite party, but the insurance claim was repudiated by the opposite parties on the ground that driver at the time of alleged accident was under the influence of alcohol.  The rejection of the complainant’s claim amounts to breach of terms contained in the certificate of insurance policy.  The deceased Akhilesh.S was a good character of Gentleman and he does not have any habit of drinking alcohol.  In the postmortem certificate does not mentioned about the quantity of alcohol only a presumption mentioned in the postmortem conducted by the forensic surgeon hence the claim is to be allowed as per the insurance policy conditions.  The repudiation of the insurance policy amounts to deficiency in service under the consumer protection act 2019.  The complainant has suffered great financial loss and damages on account of the rejection of the claim.  It has also caused harm and hardship to the complainant in addition to mental agony suffered by the complainant.  Alleging deficiency in service on the part of the 1^st and  2^nd opposite parties, the complainant approached this Commission for redressing his grievances. 
2. After admitting the complaint, notice was issued to the opposite parties and the same was served on the opposite parties.  After accepting the notice from this Commission, the opposite parties 1 & 2 failed to enter appearance before this Commission and hence on 03/01/2022 opposite parties 1 & 2 were called absent and set ex parte.
3. The evidence in this case consists of PW1, Ext.A1 to A4.  The opposite parties 1 & 2 being ex parte, there is no oral or documentary evidence on the side of the opposite parties.    
4. Issues to be considered:

1. Whether there is any deficiency in service and unfair trade practice on the

     part of the Opposite Parties?

2. Whether the complainant is entitle to the relief claimed in the complaint?
3. Order as to cost?

5. Heard.  Perused records. To establish the case of the complainant, the complainant sworn an affidavit as PW1 and Exts.A1 to A4 were marked on the side of the complainant.  Ext.A1 is the copy of the Insurance Policy.  Ext.A2 is the copy of the Post Mortem Certificate.  Ext.A3 is the copy of the F.I.R.  Ext.A4 is the copy of the Repudiation letter.  As the opposite parties failed to enter appearance and to contest the matter, there is no oral or documentary evidence on the side of the opposite parties.  The complainant’s case is that his brother Akhilesh met with an accident and lost his life.  The vehicle driven by the brother of the complainant was having valid insurance with the opposite party insurance company.  After the death of the complainant’s brother, the complainant who is the nominee mentioned in the insurance policy, submitted a claim before the opposite parties and the same was repudiated by the opposite parties on the ground that there is violation of the policy conditions.  Relying on the repudiation letter Ext.A4, the opposite party contend that as per Sec.2(c) of the policy “The company shall not be liable under this policy in respect of any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or Drugs”.  Ext.A4 also discloses that as per the postmortem report submitted along with the claim the driver at the time of the alleged accident was under the influence of alcohol and that was the reason for repudiation of the claim.  The complainant approached this Commission alleging deficiency in service on the part of the opposite parties in repudiation of the claim made by the complainant.  In order to establish the case of the complainant the complainant sworn affidavit as PW1 and Ext.A1 to A4 are marked.  There is no oral or documentary evidence from the side of the opposite parties to disprove the case put forward by the complainant.  The evidence adduced by the complainant stands unchallenged in the absence of any contra evidence from the side of the opposite parties.  On perusal of Ext.A2 postmortem report, it is revealed that nowhere in Ext.A2 there is an observation to the effect that the deceased was under the influence of alcohol.  The only observation in Ext.A2 postmortem certificate is that “body cavities emitted smell similar to that of alcohol”.  We find that the observation regarding smell of alcohol mentioned in Ext.A2 postmortem certificate alone is not sufficient to assume that the diseased was under the influence of alcohol.  When the insurance company is repudiating the claim on the ground that there is violation of the policy condition, it is the duty of the insurance company to prove that there is a violation of policy condition.  In this case as the opposite parties have not adduced any evidence in this regard we find that only observation in the Ext.A2 postmortem certificate cannot be considered as proof for violation of policy condition.  In view of the above discussion we find that by swearing an affidavit as PW1 and by marking Ext.A1 to A4, the complainant has succeeded in establishing his case against the opposite parties, in the absence of any contra evidence from the side of the opposite parties.  The Ext.A1 policy shows that PA owner Driver is entitled for a coverage of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) and as the opposite parties failed to prove any violation of policy condition and repudiated the claim, we find that there is deficiency in service on the part of the opposite parties and they are liable to compensate for the sufferings faced by the complainant due to the deficiency in service on the part of the opposite parties.
6. In the result the complaint is partly allowed.  The opposite parties are jointly and severely liable to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) along with Rs. 25,000/- (Rupees Twenty Five Thousand Only) as compensation and Rs.2500/- (Rupees Two Thousand Five Hundred Only) as cost of this proceedings within 30 days from the date of this order, failing which the amount except cost shall carry interest @ 9% p.a from the date of order till the date of realization/remittance. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 25^th  day of February,  2022.

C.C. No. 173/2021

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENT:NIL

                                                                                                                                    Sd/-

                                                                                                                            PRESIDENT