F.A.No.196 OF 2012 AGAINST C.C.NO.56 OF 2011 DISTRICT FORUM NALGONDA

Between:

Sr.Manager, Claims

SBI Life Insurance Company Limited,

Central Processing Centre,

Kapas Bhavan, CBD Belapur
Navi Mumbai.

                                                                   Appellant/opposite party no.2                                  

A N D       

1.   M.A.Kareem S/o Mohammad Ali,

E/o H.No.6-2-893/1, Meerbagh Colony
Hyderabad Road, Nalgonda Town & Dist.

                                                                Respondent/complainant

2.   The Secretary, Bhadratha,

Andhra Pradesh Police Department

Employees Benevolent and Thrift Mutual Association,

D.G.P.Office, Saifabad, Hyderabad.

                                                                        Respondent/opposite party no.1

Counsel for the Appellant              M/s  Gosala Sreenivasa Rao

Counsel for the Respondent           M/s  A.Ramakrishna(R1)

                                                Served (R2)

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                                AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

MONDAY THE SEVENTEENTH DAY OF JUNE     

                                TWO THOUSAND THIRTEEN

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

***

1.             The opposite party no.2 is the appellant.  The first respondent  was working as Police Constable in Athmakur-M Police Station in Nalgonda District.  On 18-08-2006   Maoists attacked the   Police Station causing death of other policemen and injuring the first respondent  in respect of which, PS.Athmakur-M registered a case in Crime No.40/2006.  The first respondent  is a member of Bhadratha Scheme, conducted by the second respondent.  The first respondent was holding Account No.38388 and he was paying `200/- per month to the respondent no.2 who in turn was paying the consolidated premium to the appellant and the appellant covered the risk of the police personnel including the first respondent in case of death or total disability.    The incident caused total disability to the first respondent.  Inspite of prolonged treatment, the first respondent  could not be cured and the Medical Board of Nalgonda estimated his disability at 100%.    The claim of the first respondent was rejected on the ground of limitation claiming     the rejection of his claim as illegal, the appellant filed the complaint.

 2.            The respondent no.2 resisted the case contending that the District Forum has no jurisdiction   since it is a body registered under A.P. (Telangana Area) Societies Registration Act, 1350 and it has its own byelaws.   As per Byelaw No.19, in case of Metropolitan areas Hyderabad Courts alone have jurisdiction.  The respondent no.1 received injuries on 18.08.2006 and as such he should have approached the District  Forum within two years.   He filed the complaint in the month of June, 2011 with inordinate delay.  The respondent no.1 is not a consumer within the meaning of Consumer Protection Act.  There is no deficiency of service on the part of the respondent no.2.     

3.             The respondent no.1 is a Member of Bhadratha Scheme.  He was not paying a sum of `200/- per month and he is not covered for a sum of `2,00,000/-.  He was subscribing only a sum of `100/- per month at the time of the incident.  As per the   terms of the policy, the respondent no.1  was entitled to `1,00,000/- and not `2,00,000/-.  The rates of contribution was raised from `100/- to `200/- in respect of the categories of Constable to A.S.I. and the risk covered is only `1,00,000/- and to a sum of `400/- per month in respect of S.I. and above and the amount covered is `2,00,000/-. The   increase is with effect from 26-04-2008.  The complainant had submitted the application to the Superintendent of Police, Nalgonda on 16-08-2010 and the claim is barred by limitation.  The claims lodged by the other deceased which were within time were settled and as the claim of the respondent no.1 is barred by limitation, it was rejected. 

4.            The appellant insurance company  filed written version admitting the issuance of the Group Insurance Policy, and denied   that it is applicable in the case of the respondent no.1.  According to the terms of the policy, the amount is payable if the risk occurred out of the normal duties of the police and the civil riots, natural calamities, terrorism and naxalism cannot be treated as ‘accident’.      The attack was by Maoists and it cannot be termed as an ‘accident’.    The disability to the respondent tno.1  had occurred on 18-08-2006 the respondent no.1 lodged the claim in the year 2010 and as such the claim is barred by limitation.      The respondent no.1 is a constable and in case of death and permanent disability he is entitled to only a sum of `1,00,000/- and not `2,00,000/-.  It was agreed between the Master Policy holder and the appellant that the sum assured pertaining to the accident claims will be reduced by 50% in which event the respondent no.1 is entitled to `50,000/-.    The claim is barred by limitation and as such the respondent no.1 is not entitled to any amount.

 5.            The first respondent filed his affidavit and the documents,   Exs.A1 to A7.  On behalf of the opposite parties, the Secretary of the respondent no.2 and the Authorized Representative of the appellant filed their respective affidavits and the documents,   Exs.B1 to B-6. 

6.             The District Forum allowed the complaint on the premise that the complaint was filed within the period of limitation in view of the disability certificate issued on 5.8.2010.  The District Forum observed that the repudiation ought not have been made on the ground of repudiation and hyper technical ground.  The District Forum awarded damages to the tune of `50,000/- besides a sum of `1,00,000/- which was awarded towards compensation. 

7.             Being aggrieved by the order of the District Forum, the opposite party no.2 has filed appeal contending that the cause of action had arisen on 18.8.2006 on which date the incident occurred.  It is contended that the first respondent had not intimated the incident within three years to the appellant.  The complaint is barred by law of limitation.  The complaint is filed after a period of four years from the date of occurrence of the incident.  The District Forum failed to consider the decision of the Hon’ble National Commission that terms of the policy have to be construed by giving true import and without making any addition.  It is contended that settlement or non-settlement of claim of other members has no connection with the instant case and each claim will be assessed separately according to its merits.

8.            The points for consideration are:

i)             Whether the claim is preferred and complaint is filed within the period of limitation?

ii)           Whether the appellant rendered deficient service in not settling the claim?

iii)          To what relief?

9.             POINT NO.1:   The appellant issued group insurance policy, Master policy in favour of the respondent no.2 covering risk on the life of the members of the second respondent and the first respondent being a member was covered as to risk on his life by the insurance policy. The first respondent sustained injuries in an attack by Maoists on 18.08.2006 and he intimated the appellant about the incident on 8.09.2010. The repudiation letter reads as under:

This is with reference to the Total Permanent Disability claim of M.A.kareem udner the above mentoned policy.

As per the law of limitation, if claim is intimated after 3 years from the date of accident, the company would not be liable to pay the claim amount.

In the said case, life assured M A Kareem met with an accident on 18^th August, 2006.  We received intimation on 8^th September 2010, i.e. after 3 years and 11 months from date of accident.

Hence, we are unable to pay the Total Permanent Disability benefit”.

10.            The appellant supported repudiation of  the claim on the premise that the incident wherein the first respondent sustained injuries cannot be considered as an accident and the first respondent had given intimation of the incident three years after its occurrence.   The appellant invoked Schedule IV of the insurance policy for the purpose of the time within which the insured has to furnish intimation of the incident to the appellant. Schedule IV of General Conditions of the insurance policy reads as under:

The Accidental death or Accidental Death-cum-Total and Permanent Disability benefit as the case may be, referred to under para 5 in Schedule II shall become payable only where the death/TPD is caused due to an accident by violent, visible and external means.  The accident should result in bodily injury or injuries to the  Member independently of any other means and such injury or injuries should, within 129 days of its/their occurrence, directly ad independently of any  other means result in the death of the Member.

11.            The first respondent through letter dated 8.09.2010 intimated the appellant about the incident.  The intimation was furnished three years after the incident. Schedule I  prescribes period of 120 days for the purpose of intimation of either death or disability of the member of the second respondent-society. The first respondent had given intimation of the incident after three years of its occurrence which is in violation of the terms of the insurance policy.

12.            The first respondent filed the complaint in the month of June, 2011. The incident whereof Maoists attacked the police station where the first respondent was employed occurred on 18.08.2006 and he was admitted in Kamineni Hospital, Hyderabad on 19.08.2006 and he was discharged therefrom on 7.10.2006 with an advice for consultation in OP unit. What happened thereafter, any person does not know till the first respondent requested the superintendent of police through letter dated 24.09.2010 to forward his application to the second respondent society for early processing and sanction of exgratia.

13.            There is no evidence of any sort placed on record in support of the first respondent’s contention that he was undergoing treatment for continuous period of three years since the time he was discharged from Kamineni Hospital. The first respondent filed complaint in the month of June, 2011 on the premise that his complaint was filed within two years from the time the Medical Board issued him certificate to the effect he suffered permanent disability. The first respondent had not filed any medical record to establish the treatment said to have been administered to him continuously as also he could not substantiate his plea to rest on the certificate issued by Medical Board on 5.08.2010.  The complaint is required to be filed within two years from the date of accrual of cause of action. The first respondent was discharged from Kamineni Hospital on 7.10.2006 and filed the complaint after a period of five years, i.e. in the month of June, 2011 which is barred by Section 24 of the Consumer Protection Act.

14.            The learned counsel for the appellant has relied upon the decision of the Hon’ble National Commission in “LIC of India vs Girraj Mehata” in R.P.3123 of 2008 decided on 25.5.2010. Before the District Forum, the appellant placed reliance on the following decisions:

i)             Kandimalla Raghavaiah vs National Insurance Company Ltd 2009 CTJ 951(SC)

ii)            State Bank of India vs BS  Agricultural Civil Appeal No.2067 of 2002

15.            The learned counsel for the first respondent placed reliance on the following decisions;

i)             Lata Constructions and another vs Dr.Ramesh Chandra Ramanklala Shah    2000)1 SCC 586.

ii)           Manager, Untied India Insurance Company Ltd vs Ummadi Shakuntal and others 2004(5)ALT 525.

iii)          Rita Devi and others vs New India Assurance Company Ltd and another   (2000) SCC 113.

16.            In Kandimalla Raghavaiah, (supra) cause of action and what constitutes the cause of action  was considered by the Hon’ble Supreme Court in the following terms:

“The term ‘cause of action’ is neither defined in the Act nor in the Code of the Civil Procedure,1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or accrual of right to sue. Generally it is described ‘bundle of facts’, which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated ,’Cause of action’ is cause of action which gives occasion for and forms of foundation of the suit.”

17.            B.S. Agricultural Industries (supra)  would cast obligation on Consumer Fora to examine limitation aspect before admitting the complaint.  Their lordships held:

7. Section 24A of the Act, 1986 prescribes limitation period for  admission of a complaint by the consumer fora thus:“24A. Limitation period – (1) The District Forum, the State   Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in subsection (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State  Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

8.                     It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.

18.            In Lata Constructions, the Apex Court dealt with the limitation aspect in regard to construction disputes as under:

A perusal of the agreement dated 23rd of February, 1991 would show that it was specifically stipulated therein that the rights under the agreement dated 27th of January, 1987 would remain uneffected. It was for this reason that in the claim petition filed before the Commission, it was clearly mentioned that their rights under the agreement dated 27th of January, 1987 as also those under the agreement dated 23rd of February, 1991 may be enforced. It was also specifically mentioned in the second agreement that the first agreement of 1987 would be treated as terminated only on full payment of the stipulated amount of Rs.9,51,000/- to the respondents. Since the rights under the agreement of 1987 had not been given up and the appellants were constantly under an obligation to provide a flat to the respondents and deliver possession thereof to them, the Commission rightly treated "cause of action" to be a "continuing cause of action" and came to the right conclusion that the claim was not beyond time.

Moreover, under the terms of the agreement dated 23rd of February, 1991, it was stipulated that if the entire amount of Rs.9,51,000/- was not paid by 30th May, 1991, the whole of the amount would become payable at once and it would be open to the respondents to claim payment of full amount together with interest after giving seven days' notice to the appellants. It was further stipulated that in case of default, the amount already paid by the appellants shall stand forfeited. Since the whole of the amount had not been paid to the respondents who could recover the whole of the amount together with interest from the appellant on giving seven days' notice, the rights under the old agreement did not come to an end and they could legally claim specific performance of that agreement for a flat being provided to them. Their claim was, therefore, not barred by time.

19.                Ummadi Shakuntala’s is a case where the insurance company issued Janata Personal Accident Policy in favour of the claimant’s husband and during the period the policy was in force, the insured was murdered.  Consequent upon the death of the insured, the claimant lodged claim with required material and the insurance company got conducted investigation and repudiated the claim on the ground that the insured violated the policy conditions under Sub-clause (e) of clause 3.  The claim was repudiated on the premise that the insured was a faction leader and involved in several criminal cases and was strong supporter of a political party and he was murdered in act of retaliation by a group of persons  out of criminal grudge with him.  The High Court held that the insured did not expect his death nor did he commit anything which led to his death.

20.                In Rita Devi’s decision,  the ambit of the word accident’ was considered as also whether and in what circumstances murder can be considered accidental as under:

“murder is a felonious act where death is caused with intent and the perpetrators of tat act normally have a motive against the victim for such killing.  The difference between a “murder” which is not an accident and a “murder” which is an accident depends on the proximity of the cause of such murder.  If the dominant intention of the Act of felony is to kill any particular person then such killing is not an accident murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.

21.                  The first respondent failed to show that the complaint was filed within the period of two years prescribed by Sec.24(A) of the C.P.Act which reads as under:

24A.     Limitation period. - (l) The District Forum, the State Commis­sion or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2)  Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (l), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.

22.                The disability certificate relied upon by the first respondent cannot by any stretch of imagination extent period of limitation for filing the complaint.  The complaint is not filed within the period of two years from the date of discharge of the first respondent from Kamineni Hospital Hyderabad.    The point is answered against the respondent no.1.

23.            POINT NO.2        The plea of the appellant that the incident as a result of which the first respondent sustained injuries relying upon which he lodged claim for the amount is not covered by the policy condition sub-clause 3 of clause 2 of schedule IV of general conditions.  As such it cannot be held that there is cause of action for the first respondent to file complaint attributing the appellant deficiency in service in repudiating the claim.

24.            The managing committee of the second respondent society decided to pay exgratia in 12 cases on account of refusal by the appellant herein to settle the claim.  The Managing Committee has decided to meet the amount for the 12 cases,   from Bhadratha fund.  In the similar manner the second respondent society is advised to pay a sum of `50,000/- to the respondent no.1.  The second respondent society has decided to pay the sum assured in 12 cases irrespective of the grounds of refusal of the claim made by the appellant.  The instant claim is refused on the premise of not being lodged within the period of limitation.  Therefore, the second respondent is advised to consider the claim of the first respondent on par with the other 12 cases referred to, in its written version. 

        In the result the appeal allowed  setting aside the order of the District Forum.  Consequently, the complaint is dismissed.  There shall be no order as to costs.

                                                                        MEMBER

                                                                        MEMBER

                                                                    Dt.17.06.2013

కె.ఎం.కె*