BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
CC No.33 OF 2012
Between :
1. Smt Penumalli Vijayasree W/o late Penumalli Rakesh
aged about 29 years, Occ: Housewife
2. Master P.Aashrith S/o late Penumalli Rakesh
aged about 5 years, being minor
rep. by his natural mother & guardian
Smt P.Vijayasree
Both are R/o Flat No.107, Happy Home Apartments
Moti Nagar, Hyderabad-018
Complainants
A N D
1. M/s Cholamandalam MS General Insurance Co.ltd.,
Harinivas Towers, 1st Floor, Thumbu Chetty Street
Parry’s Corner, Chennai-001
rep. by its Managing Director
2. M/s Invida India Pvt Ltd.,
B-801, “Safal Pegases”
Prahlad Nagar Road, Anand Nagar
Ahmedabad-015, rep. by its Managing Director
Opposite parties
Counsel for the Complainant M/s V.Gourisankara Rao
Counsel for the Opposite parties M/s A.Ramakrishna Reddy (OP1)
Served (OP2)
QUORUM: SRI R.LAKSHMI NARASIMHA RAO, HON’BLE I/C PRESIDENT
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER
TUESDAY THE TWENTY SIXTH DAY OF NOVEMBER
TWO THOUSAND THIRTEEN
Oral Order:(Per Sri R.Lakshmi Narasimha Rao, Hon’ble Member.)
***
1. The complaint is filed claiming Grouper Personal Accident Insurance Personal Policy amount of `18,13,200/- along with interest @ 12% p.a. from 28.5.2011 together with compensation of `2 lakhs.
2. The averments of the compliant are that the husband of the complainant no.1 late Penumalli Rakesh was an employee in Invida India Pvt Limited, opposite party no.2, which obtained Group Insurance Policy for their 1100 employees with the opposite party no.1 insurance company. The policy was issued for a total sum of `84,32,89,080/- and was valid for the period of year from 8.4.2011 to 7.4.20123. The husband of the complainant no.1 was one of the employees as such he was also covered by the personal accident policy to a tune of `18,13,200/-. On 28.5.2011 the husband of the complainant no.1 met with railway accident and died near LC Gate 102 in between Chandragiri-Tirupati. The Railway Police, Chittoor registered a case in Crime No.42 dated 28.5.2011. On 22.6.2011 the complainant informed about the death of her husband to the opposite party no.2 company and requested for the settlement of the claim and in turn the opposite party no.2 informed the same to the opposite party no.1.
3. The opposite party no.1 appointed M/s Stella Insurance Management Services Pvt Ltd., for the purpose of investigation. On 12.8.2011 the complainant no.1 submitted death certificate, claim form, legal heir certificate. Salary certificate, appointment letter, FIR, Inquest report, PM Report, etc., to the investigator. The complainant no.1 through emails dated 11.9.2011, 21.9.2011, 13.10.2011, 14.10.2011, 2.11.2011, 7.11.2011 reminded the opposite party no.1 about status of the claim. On 22.2.2012 the opposite party no.2 through letter dated 14.2.2012 repudiated the claim of the complainant no.1 on the ground that the husband of the complainant no.1 committed suicide due to family disputes and according to Part-II exclusions of the policy the claim is not payable for intentional self-inflected injury, suicide or any attempt threat while sane or not.
4. The complainant submitted that the inquest report clearly reveals that the husband of the complainant no.1 might have fell while travelling in a train or might have hit by an unknown train while crossing the track. The police authorities had not concluded that the deceased committed suicide. No suicide note was ever recovered from the dead body of the deceased. The complaint filed by the complainant no.1 against her husband was compromised in Lok Adalat on 17.3.2011 and subsequently the complainant no.1 and her husband were leading happy marital life. There is no necessity for the husband of the complainant no.1 to commit side.
5. The opposite party no.1 resisted the case contending that the complaint is not maintainable as the dispute is not a consumer dispute. The opposite party no.2 has taken Group Personal Accident Policy bearing No.2823/00103447/000/00 from the opposite party no.1 for its employees covering the risks for a period of one year commencing from 8.4.2011 to 7.4.2012 subject to certain terms and conditions and exclusions. The opposite party no.1 received claim intimation from the opposite partyno.2 with regard to the death of Sri Penumalli Rakesh who was working as a Regional Sales Manager met with train accident.
6. After receipt of the intimation, the opposite party no.1 requested the complainant to furnish all the documents and also appointed an Investigator viz., M/s Stellar Insurance Management Services Pvt Limited who gave its final report wherein it was stated in the report that the deceased Penumalli Rakesh trespassed the railway property which is proved by the act that the body was found between the railway lines and not carrying any valid ticket confirming his travelling on a board a train. Crossing a railway track is tress-passing and it is a punishable offence under the Indian Railways Act, 1989. This act of deceased attracts the provisions of policy exclusion No.7 of the policy. The cause and the event leading to the death are excluded under the policy.
7. The opposite party no.1 has submitted that as per the investigation report the insured was under severe depression due to his family problems. The wife of the insured had filed an FIR against the insured and his family members on 11.3.2011 informing that the insured and his family members are harassing her both mentally and physically for getting additional dowry. The insured along with his family members were arrested and the insured obtained a bail and later the issue was compromised in Lok Adalat on 17.3.2011. The independent investigator also confirmed that the insured was staying at Vidya Nagar Extension colony and was asked to vacate by the landlord after he was arrested. Later he shifted to Balaji Town which is close to the spot where his dead body was traced.
8. The opposite party no.1 has submitted that the insured had checked in a lodge on 24.5.2011 at about 9.40 p.m. and also contacted his friends and relatives on 27.5.2011 and they had confirmed that the insured was very much depressed with the turn of events and appeared to be dejected. The insured also written a letter to his son explaining the situation and his inefficiency in resolving the issue and make life normal. The father of the insured has stated that the wife of the insured had frequent quarrels with all the family members on petty things and she took undue advantage of the love and affection the insured had with her and many times she was restricting them from meeting the insured.
9. The opposite partyno.1 submitted that the father of the insured also confirmed that the insured had written a letter to his grandson explaining the events and that the letter is with him. After verifying the investigator’s report and all the circumstantial evidence proves that the insured has committed suicide as he was unable to manage the family dispute which was evident by the statements and documentary evidence provided by the investigator. The policy excludes any loss arising out of suicide under Part-II-Exclusions. Basing on the investigation report and the exclusion clause the opposite party repudiated the claim.
10. The complainant filed his affidavit and the documents, Exs.A1 to A22. On behalf of the opposite party, the opposite party no.1 filed his affidavit and the documents, Exs.B1 to B3.
11. The points for consideration are:
i) Whether there is deficiency in service on the part of the opposite parties in repudiating the claim of the first complainant?
ii) To what relief?
12. POINT NO.1: The first complainant’s husband during his lifetime was under the employment of “M/s Invida Private Ltd”, viz., the opposite party no.2 and the opposite party no.2-company obtained “Group Personal Janata Accident Policy” from the opposite party no.1-insurance company for its 1100 employees for a total sum of `84,32,89,080/- and the insurance policy was issued for a period of one year commencing from 8.04.2011 till 7.04.2012. The individual sum assured on each employee was `18,13,200/-.
13. The first complainant’s husband died on 28.05.2011 and the Railway Police, Chittoor registered a crime in FIR No.42 of 28.05.2011. The first complainant informed the opposite party no.2- company on 22.06.2011 about the death of her husband and the opposite party no.2 and the opposite party in turn intimated the incident to the opposite party no.1-insurance company which had appointed an investigator, M/s Stella Insurance Management Services Pvt Ltd, for the purpose of investigation of the claim.
14. The opposite party no.1-insurance company repudiated the claim on 14.02.2012 on the ground that the first complainant’s husband trespassed into railway property and committed suicide due to family disputes. The repudiation letter reads as under:
After verifying the investigator’s report, all the circumstantial evidence proves that the insured has committed suicide as he was unable to manage the family dispute which was evident by the statements and documentary evidence provided by the investigator. We wish to highlight at that the policy excludes any loss arising out of suicide under Part II – Exclusions, whcih is reproduced below for your ready reference:
Part II – Exclusions
This policy does not provide benefits for any death, disability, expense or loss incurred in result of any Injury attributable directly or indirectly to the following:
1. Intentionally self-inflicted injury, suicide or any attempt thereat while sane or insane:”
In view of the above mentioned facts, we regret our inability to entertain t he claim as per the policy terms and conditions as stated above.
15. The first complainant has stated that her husband did not trespass into Railway Property and killed by an unknown train or he had not committed suicide due to disputes with her. She has stated that the dispute was compromised in Lok Adalat on 17.03.2011 and since then they were leading marital life. The complainant has relied on Inquest Report and Report of Post Mortem Examination. In the Inquest report it is stated that the first complainant’s husband might have been died due to his being collided by an unknown train while crossing the railway track or he might have been slipped off and fell down while travelling in a train. The Report of Post Mortem Examination indicates the cause of death of the deceased as “multiple ante mortem injuries”.
16. The opposite party no.1-insurance company has contended that the insured trespassed into Railway Property and as such the repudiation of the claim is made on consideration of evidence and on application of Clause 7 of the terms of the insurance policy . Clause 7 of the Insurance Policy reads as under:
“Part II (Exclusions) Clause 7
“any loss of which a contributing cause was the Insured’s actual or attempted commission of, or wilful participation in, an illegal act or any violation or attempted violation of the law or resistance to arrest;”
17. Admittedly, the case is still pending and the Police had not requested for or the Magistrate concerned have not closed the case. The opposite party no.1 disputed the cause of death of the deceased. The senior manager of the opposite party no.1-insurance company has stated:
“I submit that the said investigation agency completed its investigation and also filed a final report. On going through the documents, it is noticed that the deceased Penumalli Rakesh trespassed the railway property which is proved by the fact that the body was found between the railway lines and not carrying any valid ticket confirming his traveling on a board a train. Therefore, it is evident that the insured had trespassed into the railway line and in the process; he was killed by an unknown speeding train. It is further submitted that crossing a railway track is tress-passing and it is a punishable offence under the Indian Railways Act, 1989. This Act of deceased was in violation of the law which unfortunately attracts the provisions of Policy Exclusion No.7 of the Policy
18. The senior manager of the opposite party no.1-insurance company has stated that the insured committed due to family disputes with the first complainant and he was dejected and contacted his relatives just few days before he died and in view of exclusionary clause, the claim was rightly repudiated. He has stated:
I submit that the independent investigator also confirmed that the insured was stating at Vidya Nagar Extension colony and was asked to vacate by the landlord after he was arrested. Later he shifted to Balaji Town which is close to the spot where his dead body was traced. Further it was also pointed out by the investigator that the insured had checked in a lodge on 24.5.2011 at about 9.40 p.m. he had also contacted his friends and relatives on 27.5.2011 and they have confirmed that the insured was very much depressed with the turn of events and appeared to be dejected. He had also informed to them that he has written a letter to his son explaining the situation and his inefficiency in resolving the issue and make life normal
I submit that the father of the insured has stated that the insured’s wife had frequent quarrels with all the family members for petty things and she took undue advantage of the love and affection the insured had with her and many times she was restricting them from meeting the insured. He had also informed that the insured had indeed written a letter to his grandson explaining the events and that the letter is with him.
19. The exclusionary clause under Part –II of the Terms of the Insurance Policy excludes any loss incurred due to the insured committing suicide and it reads as follows:
I submit that the policy excludes any loss arising out of suicide under Part-II-Exclusions, which is reproduced below for the ready reference of the Hon’ble Commission:
Part II-Exclusions:
“This policy does not provide benefits for any death, disability, expense or loss incurred in result of any injkury attributable directly or indirectly to the following:
1. Intentionally self-inflicted injury, suicide or any attempt thereat while sane or insane”.
20. The investigator in its report has referred to the deceased residing separately from the complainants and the photograph of the lady found in possession of the insured at the time of his death as not that of the first complainant. The first complainant has not denied the finding of the investigator. The second paragraph of the investigator’s report reads as under:
“Our findings as follows strengthen the conclusion that Mr.Rakesh Penumalli would have committed suicide:
· Mr.Rakesh and his wife had marital issues. WE have evidence to suggest that she filed a dowry harassment case udner section 498 A of IPC and Secs 3 & 4 of DP Act, against her husband and his relatives i.e., his brother, father, sisters and sister-in-law in the month of March, 2011, leading to the arrest of Mr.Rakesh.
· This was followed by a bail and matter having been compromised in Lok Adalat in the month of April 2011, Mr.Rakesh was acquitted. However, as per our understanding cases are still udner sub-judice as agianast the relatives.
· Mrs.Vijayasree in our last meeting had told us that there was mutual bonding and love between her and Mr.Rakesh and that could be the reason why he was carrying her allowed photograph at the time of his death. However, this was a blatant lie. This is proved by the points mentioned as also the point below.
· The photograph of the lady which Mr.Rakesh was carrying was not of Mrs Vijayasree (enclosed photo for reference).
· We have enquired with police by showing Vijayasree photo about this and the GRP consitable Mr.Venkataramana who has dealt the case has told us that the photo carried by Rakesh at the time of death was different.
· Mr.Rakesh earlier rented a residence in Thirupati west, which is quite opposite parto the spot where his dead body was found (address: H.No.3-2-36, Vidya Nagar, Extensions Colony, Near Little Flower Schoold Road, Sri Venkateshwara Univesreity Post, Thirupati Town).
· As per the house owner, they have asked Mr.Rakesh to vacate the house after the police arrested him, further he has vacated and shifted to Balaji Town which is also nearby to the spot. Mr.Rakesh was staying with a female at this residence who’s details understand from our enquires from locals is that the photograph Rakesh was carrying at the time death is the female he was staying at Balaji town(enclosed photo for reference).
21. Apart from the aforementioned disputed facts and complex and complicated questions of facts, the first opposite party has brought on record the copy of notice dated 5.03.2011 which was got issued by the insured to the first complainant calling upon the first complainant to co-operate with him in obtaining decree of judicial separation to enable him lead lonely and peaceful life. The third and fourth paragraphs of the notice read as under:
My client states that, you are suffering with mental ill-health and you are using medicines for the said decease, but you suppressed the same at the time of marriage. That my client came to know, your said mentality within few months of his marital life with you, but due to your pregnancy, and upon his love on you, he bored all your attiudes with peaceful mentality. Further, you are habitual to leaving the matrimonial life frequently without any reasons and without any intimation to my client. Though my client treating you with utmost love and affection, you are habitual in leaving the matrimonial house without nay reasons by raising petty quarrels, with the sole intention to leave the company of my client.
My client states that, soo after the delivery and after joining with my client your mental condition completely disturbed and your attitude towards my client and his parents completely changed and for no reasons you started raising petty quarrels and also used to abuse the parents of my client with filthy language when my client made efforts to interfere without any hesitation you have beaten him also. That my client states that, in the month of August 2010 you left the company of my client without intimation with your belongings and the son of my client since. That you are residing with your parents till date.
22. The Hon’ble Suprme Court in “Oriental Insurance Company Ltd vs Munimahesh Patel” IV (2006) CPJ 1, held that disputed questions of fact cannot be adjudicated in summary proceedings by Consumer Forum. It was held:
“9. The Commission noted that the specific stand of the appellant was that there was mis-declaration in the proposal form and the false claim that the respondent’s wife was a teacher which as now appears is not the correct position. It also accepted that she was really not a teacher.
10. Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.
11. The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.
12. The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.
13. Above being the position, the Commission was not justified to deal with the matter in the manner as was done. In our view, the directions of the State Commission were more appropriate keeping in line with the nature of dispute. Accordingly, the appeal is allowed but with no order as to costs.”
23. The National Commission in ‘Transport Corporation Employees Provident Fund Trust vs Orissa small Industries and another ‘ III(2007) CPJ 316(NC) , ‘Omprakash vs Allahabad Bank’ III(2206)CPJ 418 and “Life Insurance Corporation of India vs Smt Heera Devi” 2010 CTJ 647 held that the matter involving adjudication of disputed questions of facts has to be tried by competent court. Thus, we are inclined to give opportunity to the complainant to approach competent court for adjudication of the matter.
24. In the result, the complaint is disposed of by giving liberty to the complainant to approach appropriate and competent court. In the event complainant approaches the court the period spent between the filing of the complaint and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Hon’ble Supreme Court in “Trai Foods Ltd vs National Insurance Company Ltd and others” reported in III (2012) CPJ 17”.
.
I/C PRESIDENT
MEMBER
Dt.26.11.2013
KMK*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL
EXHIBITS MARKED
For complainant
Ex A-1 Schedule Group Personal Accident Policy dt:13.5.2011 with rules
Ex A-2 Certificate dated : 4.7.2011 issued by Inspector of Railway Police Renigunta.
Ex A-3 FIR No. 42/2011 dated 28.5.2011.
Ex A-4 Inquest report dated 4.7.2011.
Ex A-5 Post-mortem certificate date 29.5.2011
Ex A-6 Statement of Smt. P. Vijayasree
Ex A-7 Death Certificate dated : 6.8.2011 issued by
Grampanchayat, Mutyalapalle.
Ex A-8 Legal heirs Family Members Certificate dated : 28.7.2011
Ex A-9 Salary Letter dated 1.3.2011
Ex A-10 Employment Agreement dated 3.1.2011
Ex A-11 Marriage Certificate dated 19.9.2005
Ex A-12 Certificate of marriage dated : 23.9.2005
Ex A-13 Acknowledgement letter dated 12.8.2011 of Stellar Insurance Management Services pvt ltd.
Ex A-14 Bunch of E-mails.
Ex A-15 Repudiation letter dated 14.2.2012
Ex A-16 E-mail of the complainant no.1 dated 28.2.2012
Ex A-17 E-mail of OP no.2 dated 28.2.2012
Ex A-18 E-mail of the complainant no.1 dated 29.2.2012
Ex A-19 E-mail dated 29.2.2012 of OP2.
Ex A-20 Case –diary party –I dated 30.5.2011
Ex A-21 Request to drop further action as investigation completed
Ex A-22 Letter of Supdt. Of Police Railways dated 12.2.2013.
For opposite parties
Ex B-1 Policy copy with terms and conditions dated 23.6.2011
Ex B-2 Investigation report received from stellar Insurance Management Services (P) Ltd(24) pages. Dated 3.2.2012
Ex B-3 Repudiation Letter dated 14.2.2012.
I/C PRESIDENT
MEMBER
