BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM ::

KADAPA Y.S.R DISTRICT

PRESENT SRI V.C. GUNNAIAH, B.Com., M.L., PRESIDENT

    SMT. K. SIREESHA, B.L., LADY MEMBER

                                                                            SRI M.V.R. SHARMA, MEMBER

Wednesday, 27^th July 2016

CONSUMER COMPLAINT No.  11/ 2016

Smt. Badveli Ramanamma,

W/o Late B. Paramathmananda Reddy,

aged 45 years, Hindu, House wife,

Residing at H.No. 17/500, Nadimpalli Street,

Proddatur town and Mandal, Kadapa District.                       ….. Complainant.

Vs.

The New India Assurance Co. Ltd., Rep. by its

Divisional Manager, Divisional Office, D.No. 2/789,

1^st floor, Sairam Towers, Nagarajupeta, Kadapa City.          …..  Opposite party.

This complaint coming for final hearing on 19-7-2016 in the presence of Sri B. Vijaya Kumar, Advocate for complainant and Sri D. Rajasekhar Reddy, Advocate for opposite party and  upon perusing the material papers on record, the Forum made the following:-

O R D E R

(Per V.C. Gunnaiah, President),

1.             The complainant filed this complaint under section 12 of Consumer Protection Act 1986 (for short herein after called as C.P. Act) praying this forum to direct the Opposite party to pay Rs. 10,00,000/- (Rupees ten lakhs only) with interest @ 24% p.a. from the date of accident i.e. 9-12-2013 till date of payment, to pay Rs. 10,000/- towards mental agony and Rs. 5,000/- towards costs of the complaint. 

2.             The averments of the complaint in brevity are that the Complainant is the legally wedded wife of deceased Badveli Paramathma Nanda Reddy, who is hereinafter called as deceased.  The deceased obtained personal accidental insurance policy bearing No. 61120042130100000123 by paying premium of   Rs. 506/- valid from 9-11-2013 to 8-11-2014 from Opposite party and Opposite party issued policy for an amount of Rs. 10,00,000/-.   On 9-12-2013 at about 11.30 a.m while the deceased was proceeding by walk along with others on N.H. Road towards Nandayala side on proddatur – Mydukur road one mini lorry bearing No. AP 04 TT : 9027 by coming in a rash and negligent manner hit the deceased behind his back, as a result he sustained severe multiple injuries and the lorry went away without stopping.  The coolies who are working near in the fields shifted the deceased to Govt. Hospital, Proddatur and on examination the doctors confirmed the death of the deceased succumbed to injuries.  On the complaint of the Complainant Mydukur U/G police registered a case against the driver of the said lorry and subsequently laid charges sheet against him under section 304 (A) IPC.

3.             The Complainant approached Opposite party by submitting claim forms along with relevant records for personal accident insurance policy of the deceased.  But the Opposite party failed to pay the same.  The Complainant issued legal notice on 22-5-2015, still there was no response from the Opposite party.  The Complainant suffered mental agony.  The Complainant filed P.L.A.C No. 18/2015 for necessary releifs.  The Opposite party opposed and finally given a simple suggestion to withdraw PLAC and lodge a complaint through District Consumer Forum.  Accordingly the complaint withdrawn the said PLAC and filed this complaint for the above reliefs.

4.             Opposite party filed counter denying the allegations in the complaint regarding the death of the deceased in accident and also deficiency in service on their part and liable to pay claim amount by the Complainant and called upon the Complainant to prove all. 

5.             It is further averred the death of the deceased is outside terms and conditions of the policy and complaint could not be decided without elaborate evidence and enquiry and with a liberty to file a civil suit before competent court of jurisdiction.  Thus this forum cannot be deciding the matter.   

6.             Opposite party rightly repudiated the claim of the Complainant on the ground that no written notice within 30 days from the date of death of the deceased.  The Opposite party received intimation from Complainant on                          8-10-2014 i.e. 10 months after the death of the deceased, which is against the terms and conditions of the policy.  It is further averred that one V. Samba Sivaiah, emergency medical technician 108 ambulance referred complaint before Mydukur police station stating that the deceased died might be road accident or might be intoxication having taken heavy alcohol.  Hence, the deceased died due to intoxication, which is tantamount to putting once own life to needless peril.   Therefore, the Opposite party is not liable to pay any compensation and rightly repudiated the claim.  It is further averred that the FIR was registered under Section 174 of Cr.P.C and later it was created as motor vehicle accident fraudulently by preparing documents by police colluding with the owner of the vehicle bearing No. AP 04 TT : 9072.  Thus the death of insured is not accidental death.  Hence, there is no deficiency of service on the part of the Opposite party and the claim of Complainant is rightly repudiated on 9-4-2015 on the ground that no written notice within one calendar month after the death and due to consumption of liquor heavily and fallen on the road in drunken condition.  Hence, the complaint is liable to be dismissed with exemplary costs. 

7.             On the basis of the above pleadings the following points are settled for determination. 

1. Whether there is deficiency of service on the part of the Opposite party?
2. Whether the Complainant is entitled for the relief’s claimed against the Opposite party?
3. To what relief?

8.             No oral evidence has been let in by the parties.  But  on behalf of the complainant  Exs. A1 to A6 documents are marked and on behalf of the Opposite party Exs. B1 & B2 documents are marked.       

9.             Heard arguments on both sides and considered written arguments filed by the Complainant.    

10.            Point Nos. 1 & 2.  Learned counsel for Complainant relying on 2012 ACJ 2148, Jasbir Kaur Vs. Oriental Insurance Co. Ld., and others contended that the repudiation by opposite party is unjust on the ground that the death intimation was not given within 30 days and in view of the above decision insurance company is liable to pay assured sum with interest.  He also contended that the insured under Ex. A1 policy died due to road accident and the same is proved by filing Exs. A2 to A5.  Hence, it is established that there is deficiency in service on the part of the Opposite party and Complainant is entitled claim reliefs.

11.            Per contra learned counsel for Opposite party contended that Ex. A2 FIR was registered under section 174 Cr.P.C and though Ex. A3 styled as post mortem certificate but it is only a translation of Ex. A4 inquest report and no post mortem certificate to prove the death of deceased in accident was filed by the Complainant in this case.  As per version of Sambasivaiah the first informer under Ex. A2 FIR that the deceased was under the influence of alcohol and the death is not proved by the Complainant by filing post mortem report or by  placing any evidence.  Therefore, the claim of Complainant was rightly repudiated as it was against the terms of policy conditions.  Thus, there is no deficiency in service on the part of the Opposite party in this case.   The learned counsel also argued that since death of the deceased is due to road accident is denied by the Opposite party and there is no material in this case placed by the Complainant to prove the same in an accident and the case requires elaborate evidence to prove contention of the parties it cannot be decided in this forum without eliciting evidence both oral and documentary.  Therefore, the complaint is liable to be dismissed.

12.            There is considerable force in the contention of learned counsel for Opposite party. In para – 4 of the complaint the Complainant pleaded that the deceased was proceeding by walk along with others on NH road near fly over Proddatur – Mydukur road and at the time of vehicle bearing No. AP 04 TT : 9027 hit the deceased (insured) and caused injuries and due to that he died.  But none of the persons who are walking along with the deceased gave complaint to police about the accident and injuries caused to him. On the other hand a  perusal of Ex. A2 FIR reveal that it was registered under section 174 Cr. P.C on the complaint by one V. Sambasivaiah a technician in 108 ambulance.  In the complaint he says that the deceased had taken alcohol and smell was coming.  It also reveals that one Ramudu gave information to 108 stating that one unknown person with head injury was at Flyover Bridge in proddatur road.  So, if really the deceased was walking along with others, the other persons must have seen the accident and reported the matter to police or to the Complainant.  This circumstance shows that the deceased was not walking along with others as pleaded by the Complainant and met with accident.   

13.            The deceased took policy on 9-11-2013. He said to have met with accident on 9-12-2013 at about 11.30 a.m and died.  As per terms and conditions of the policy the death intimation must have been given to the Opposite party within 30 days.  But the Complainant has not given complaint within the stipulated period, however, intimated on 8-10-2014.   But as per judgment cited by the Complainant  counsel in 2012 ACJ 2148 Jasbir Kaur Vs. Oriental Insurance Co. Ld., and others the said lacuna of not intimating within the stipulated time in the policy is not a mandatory one and insurance company cannot repudiate the claim, on that ground.  So that contention of Opposite party cannot be upheld in view of the above judgment. 

14.            However, in this case the Complainant failed to prove the death of the deceased was in road accident and there was no carelessness or recklessness on his part.  To prove the death of the deceased post mortem report is important in this case.  Though the Complainant filed Ex. A3 stating that it is a post mortem certificate dt. 10-12-21013 but a perusal of contents of Ex. A3 shows it is not a post mortem certificate, but it is only a translation in English of a document, in quest report Ex. A4 filed by the Complainant.  A perusal of Ex. A3 further reveals that it is only in completed document and no cause of death of deceased is opined by the doctor who conducted the post mortem.   Though Ex. A5 charge sheet is filed under Section 304 (A)  IPC and other sections, but it is not a document to prove death of the deceased in road accident.  In this case the Opposite party repudiated the claim on the ground that the death of deceased / insured is not accidental death and since the Complainant failed to prove that the death of the deceased / insured is a accidental death by placing clinching evidence to prove the same repudiation of claim by the Opposite party does not come under the purview of deficiency in service.  Therefore, we hold there is no deficiency in service on the part of the Opposite party and Complainant is not entitled for the claims against the Opposite party and the Opposite party is not liable to pay the same to the Complainant.  Accordingly points 1 & 2 are answered against the Complainant. 

15.            Point No. 3. In the result the complaint is dismissed, but in the circumstances without costs.

          Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 27^th July 2016

MEMBER                                         MEMBER                             PRESIDENT

APPENDIX OF EVIDENCE

Witnesses examined.

For Complainant:         NIL                                For Opposite parties :     NIL

Exhibits marked for Complainant  : -  

Ex: A1       Copy of  the policy under a Personal Accident Insurance (individual)

                  bearing Policy No.61120042130100000123 valid from 9-11-2013 to 8-11-2014.

Ex: A2       P/c of the F.I.R. in Crime No.461 of 2013 of Mydukur U/G P.S.

                 dated 9-12-2013.

Ex: A3       P/c of the Post Mortem Certificate of the deceased,  Dt. 10-12-2013.

Ex: A4       P/c of the Inquest Report of the deceased, Dt 10-12-2013.

Ex: A5       P/c of the Charge Sheet in Crime No.461 of 2013.

Ex: A6       P/c of the Legal Notice, dt. 22-5-2015 and along with postal receipt

                  and acknowledgement card.

Exhibits marked on behalf of the Opposite party : -  

Ex. B1       P/c of claim form.

Ex. B2       P/c of policy and terms and conditions.

MEMBER                                    MEMBER                                 PRESIDENT

Copy to :-

1. Sri B. Vijaya Kumar, Advocate for Complainant
2. Sri D. Rajasekhar Reddy, Advocate for Opposite party.

B.V.P.