A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
C.C. 122/2012
Between :
K. Venkatamma, W/o Late K. Nadipi Venkataiah
Aged about 55 years, Occ : House-wife
R/o Konayapalli Village, Lingaladinne Post,
Mydukur Mandal, Kadapa District (AP ) .. Complainant
And
01. M/s. Bajaj Allianz General Insurance Co. Ltd
Rep. by its Regional Manager, 2nd floor
Far East Plaza, Main road, Himayathnagar
Hyderabad.
02. M/s. Road Safety Club Pvt. Ltd
Rep. by its Managing Director
2A, Prakasam Road, T. Nagar,
Chennai – 600 017.
03. M/s. Shriram DTH Pvt. Ltd
Rep. by its Managing Director
2A, Prakasam Road, T. Nagar,
Chennai – 600 017.
04. SKI Insurance Marketing Pvt. Ltd
Area Office, rep. by its Manager,
No.12, First floor, Sridevi complex,
Tilak road, Tirupati – 517 501 .. opposite parties
Counsel for the Complainant : Mr. Ch. Vasantha Kumar
Counsel for the Opposite parties : Mr. A Ramakrishna Reddy for R-1.
Service held sufficient for Ops 2 to 4.
Coram :
Sri R. Lakshminarasimha Rao… Hon’ble Incharge President
And
Sri T. Ashok Kumar .. Hon’ble Member
Wednesday, the Sixth Day of November
Two Thousand Thirteen
Oral Order : ( As per Sri T. Ashok Kumar , Hon’ble Member )
****
1. This is a complaint filed by the complainant against the opposite parties to pay the sum assured amount of Rs.24,00,000/- towards insurance amount under all the policies along with interest @ 18% pa from the date of death of the policy holder and Rs.25,000/- towards costs of the complaint.
2. The brief facts of the complaint are that the complainant is the wife and legal heir of Late Komarakalva Nadipi Venkataiah and her husband while he was alive obtained eight membership certificates bearing Nos. 197652 and 199089 to 199095 by paying a membership fee of Rs.14,800/- from OP.2 through OP. 3. The certificate No. 197652 is valid from 24.03.2006 to 23.03.2011 ( 60 months) and the rest of the certificates bearing No. 199089 to 199095 are valid from 24.01.2007 to 23.01.2010 ( 36 months ). Since the OP.1 entered into an insurance Indemnity contract to all the members of the OP 2 under Group Personal Accident Master Policy bearing No. OG-06-1501-9960-00000002 covering the risk of accidental death for an amount of Rs.3 lakhs, the first opposite party in favour of the complainant’s husband issued insurance certificates bearing No. AC5/PB000007142 valid from 08.04.2006 to 07.04.2007 and AC3/PB00002026 to AC3/PB00002032 valid from 08.02.2007 to 07.02.2008 @ Rs.3 lakhs for each certificate altogether comes to Rs.24 lakhs. While the matter stood thus, her husband while walking on the road near Lakshmipalyam village on Badvel-Porumamilla route on 12.04.2007 at about 5.00 PM, an Auto bearing No. AP-26-4781 dashed him in a rash and negligent manner, he sustained serious injuries and while shifting to the Government Hospital, Badvel, on the way he succumbed to the injuries. On the complaint, the police of Badvel ( Urban) registered the case, got conducted the inquest over the dead body, scene of offence, panchanam, M. V. Inspection and post mortem examination etc and it was opined in PME opined that her husband died in a road accident. The complainant submitted the claim along with all supporting documents to the 1st opposite party through the Ops 2 to 4 and despite compliance of several clarification, it did not settle the claim and hence she got issued a legal notice dt. 13.04.2009 and even then OP 1 did not settle the claim. Ops 2 to 4 are proforma parties and no relief is sought against them. The acts of OP. 1 amount to deficiency in service and hence the complaint for the reliefs described supra.
3. The 1st opposite party filed counter opposing the claim of the complainant denying the allegations made in the complaint and the brief facts of the counter are as under :
The complaint is not maintainable as it is not a Consumer dispute U/s. 2(1)(d) of the Consumer Protection Act. The complainant obtained the insurance policies illegally from the OP. 2 on a dead person to get compensation colluding with the agent of the OP.2, viz., Sokkam Pullaiah. The said Komarakalva Nadipi Venkataiah died due to his old age at his home at Konayapalli village in between December, 2005 and January, 2006 and death particulars were not recorded in the village. The said Venkataiah, who was the village servant of Lingaladinne village, died on 03.04.2007 due to old age. While so, one Vankayala Venkata Ramana, S/o Venkataiah died of AIDS disease on 12.04.2007 in the morning. The complainant, her brother Mr. Chanda Venkataiah and the insurance agent Sokkam Pullaih hatched a plan together with the Auto driver cum owner Mr. S. Prasad, R/o Laxmipalem village, to claim insurance amount and took the dead body of Venkata Ramana to the Government Hospital, Budvel in Maruti Van and on the way they made injuries on the head and other parts of the body with blunt object to create it as a road accident death and on the objection of doctors for admission, Chanda Venkataiah lodged a complaint stating that while he and the deceased Komarakalva Nadipi Venkataiah went to Laxmipalem village to purchase bulls by walk and that an Auto bearing No. AP 26 4781 came from behind and dashed the deceased at about 5.00 PM and as a result of it he sustained severe injuries and died on the way to the hospital on the said complaint PS, Budvel at 12.30 PM registered Crime No. 58/2007 describing that the dead body belongs to Komarakalva Nadipi Venkataiah and thereafter the dead body was shifted to Mortuary on 13.4.2007 and the inquest and post mortem were conducted on 13.4.2007 in which the said Sokkam Pullaiah is the Panchayatdar no. 2. The doctor opined that the deceased might have died due to blunt injury to vital organ, brain leads hemorrhage, shock and the time of death was between 24 to 36 hours prior to the PM examination and that it was interpolated the figure 24 as 12 and the doctor did not state that it is an accidental injuries. OP. 1 has addressed a number of letters to provide address proof of deceased and bank pass book copy as mentioned in the complaint. The ration card submitted by the complainant was issued on 24.03.2006 in the name of Komarakalva Venkatamma but the name of the deceased Komarakalva Nadip Venkataiah is not figured in the said ration card and hence the said Venkataiah is no more by the date of issuing the said ration card which is a new one . The deceased who was having Ac.1.34 gts aged about 70 years cannot afford to purchase 7 polices on a single day. Thus OP.1 repudiated the claim on the basis of the report of the surveyor appointed by them on the ground that it is a bogus claim and the same was intimated to the complainant. A. P. State consumer Disputes Redressal Commission is not the appropriate Forum to adjudicate the matter since complicated questions of facts and law are involved. The complaint is a false, frivolous and vexatious one and that there is no deficiency in service on their part and thus prayed to dismiss the complaint.
4. Evidence affidavit of the complainant was filed reiterating her respective pleadings and Ex. A-1 to A-5 were marked on behalf of the complainant and evidence Affidavits of K. Ranjith for R1 and P. Subrahmanyam for R2 were filed and Ex. B1 to B13 were marked for the Opposite parties. Written submissions of the complainant and R-1 and Additional written submissions and rejoinder on behalf of the complainant filed.
5. Heard the learned counsel for the complainant and Ops with reference to their respective contentions in detail. Written arguments filed on behalf of OP.1.
6. Now the points for consideration are :
(i) Since fraud, impersonation etc alleged whether this Commission can entertain the complaint ?
(ii) Whether the opposite parties rendered deficient service as pleaded by the complainant ?
(iii) Whether the complainant is entitled for the amount as claimed ?
(iv) To what relief ?
7. The case of the complainant is that her deceased husband K. Nadipi Venkataiah had taken eight Membership certificates through OP. 2 from OP. `1 vide Ex. A1 and that since the claim of the insurance made by her for the accidental death of her husband was not settled she was constrained to file the complaint seeking direction to the Ops to pay Rs.24 lakhs i.e. @ Rs.3,000/- per each certificate. Whereas OP 1 contended that the insured aforesaid died between December, 2005 and January, 2006 due to old age and that the same was not registered at his village Gram panchayat and that the family of the complainant in collusion with the second opposite party agent had obtained eight insurance policies in the name of the deceased and that with the help of the relatives of the complainant, alleged offending Auto AP 26 4781, his owner cum driver s Prasad and one Smt. Narasamma they created accidental death of insured by placing dead body of one Vankayala Venkataramana, AIDS patient, who died on 12.4.2007 and that in the said context they made a police complaint and that a Crime No. 58/2007 was registered at the concerned P.S. and that managed everywhere, manipulated records etc and laid a false claim and that these things came to the light of the Ops as two investigators were appointed and they submitted reports in the said context. The complainant filed rejoinder affidavit disputing the said points agitated by the opposite parties.
8 . As seen from the record, the deceased K. Nadipi Venkataiah aged about 70 years was not financially affluent and he was holding only land about Ac.1.50 cents. It is not clarified as to what prompted him to obtain the said 8 policies to cover his life risk for 24 lakhs. According to the complainant basing on two such insurance certificates before Ombudsman a complainant was lodged and she had obtained Rs. 6 lakhs. Why the complainant did not file complaint basing on the eight subject policies of this complaint before the Ombudsman has not been clarified. Had the said eight certificates were in existence when complaint before ombudsman was filed certainly she would have claimed the amount basing on these eight certificates also. Therefore for the purpose of this complaint any amount of doubt can be entertained over Ex. A1 eight certificates. It is much more so when the opposite party contended that the deceased Nadipi Venkataiah died in between December, 2005 and January, 2006 due to old age and that the dead body of one Vankayala Venkata Ramana was used and created the accidental death of the insured on 12.4.2007. In view of the said grave allegations detailed enquiry is necessary and certainly it is a complicated case. The opposite party contended that after receipt of the claim insurance company entertained a doubt about the genuineness of the claim and therefore an enquiry was got conducted and that several documents were obtained from the concerned agencies under right to Information Act and then came to know that the insured Nadipi Venkataiah died long back and in his place, another body was introduced by playing fraud and manipulated all the documents in support of the complainant as if the said Nadipi Venkataiah died on 12.4.2007.
9 Ration card Issued on 24.3.2006 discloses that it was issued on 24.3.2006 in the name of the complainant ie Komara Kalava Venkatamma and names of her son Subbarayudu, daughter in law, Naga Manemma, another son Venkataramana only find place in it. Had the said Komara Kalva Nadipi Naidu insured was alive in the year 2006 when such a card was issued certainly his name would have been mentioned. It is not the case of the complainant that her husband was living elsewhere during that time and therefore, his name was not mentioned in the ration card. Ex. B-11 reply of the Tahsildar concerned discloses that Card issued to Smt. Komara kalva Venkatamma is genuine and that it was issued in the year 2006. In such circumstances also, there is acceptable force in the contention of the opposite parties that he died prior to issuance of such a card. According to the 1st opposite party, the alleged offending Auto owner/driver said to have been dashed to the deceased has stated that he did not cause any such accident and that his Auto never met with an accident and that he was never brought before the police or the Court in connection with the accident and in the said context Ex. B3 Video recording was done and that brother of the deceased also stated that the deceased died due to fever and not due to any sort of accident and that neighbourer of the deceased also supported the contention of the brother stating that the deceased died due to fever and not on account of any accident. It is true that translation of the video conversation has not been submitted in this case. Whether the said statement was genuine or was obtained by coercion, fraud etc has to be decided and for that also detailed enquiry by recording his evidence and also the testimony of others aforesaid is necessary subjecting them for cross examination and such an exercise can be made in a civil suit and not in Consumer Forum because summary procedure is contemplated in the trial of consumer complaints.
10. In a Judgment of Hon’ble Supreme Court of India in Civil Appeal No. 4091/2006 between oriental Insurance Company Vs. Muni Mahesh Patel, it was held where, issues involved disputed factual position the consumer disputes Redressal Commission should not adjudicate the matter and the case should be examined with voluminous documents by an appropriate Court of law and the said decision supports the case of the Ops. In such circumstances the decision in FA 724/2007 and 725/2007 AIR 2002 SC 2931 are not helpful for the complainant it is much more so as the facts of the case on hand are quite different with that of the cases covered by the said decisions. Merely because the investigators did not file their affidavits with reference to the CD it cannot be said that there are no such complicated questions in this matter. When the allegation about impersonation is made a detailed enquiry with regard to FIR, death Certificates and post mortem report is essential as they have only rebuttable presumptions about the genuineness of the said documents. Post mortem examination report in Ex. A3 discloses that there is no mention of body incharge of police constable Number and also as to who identified the dead body as that of the dead body of Nadipi Venkatayya. FIR discloses that one Venkatayya, brother of the complainant lodged complaint with police, Budvel at 12.30 on 12.4.2007 stating that deadboyd belongs to Nadipi Venkatayya and that while himself and deceased were going to Laxmipalem village by walk to purchase bulls an Auto bearing No. AP 26 4781 came from their behind and dashed the deceased Nadipi Venkatayya about 5.00 PM and on account of the said accident the deceased sustained several injuries and died on the way to hospital in another auto. As rightly contended by the Op.1 had the
Auto dashed from behind it is practically not possible to have a blunt injury on the occipital region of the skull. The post mortem discloses that PME was concluded on the dead body on 13.4.2007 and by that time the body was badly decomposed. The Op.1 contended that the doctor entertained suspicion on the injuries found on the body and after thorough examination she gave her opinion stating that the deceased might have died due to blunt injury to vital organ and that brain leads to hemorrhage shock and that the doctor did not state in PME report that the injuries are accidental. The 1st opposite party contended that on hearing about the ill health of Mr. Vankayala Venkata Ramana one of the relatives of the complainant herein her brother Chanda Venkataiah so also agent Sukkam pullaih hatched a plan to use the body of the said Venkata Ramana to claim amounts under the subject insurance certificates and in that process they contacted Auto driver cum owner viz S. Prasad Rao and that convinced mother of the said Venkata Ramana by offering amount to take his dead body after the death and also informed her that since her son was suffering from AIDs nobody would come forward to perform his last rites and that they will perform the same and that in such circumstances the mother of Venkata Ramana agreed for the same and that the AIDS Patient died on 12.4.2007. and then the dead body was taken in a Maruti van to Budvel after causing injuries to the head and other parts of the body with blunt weapon with an object to create it as a road accident death and that the dead body was directly taken to Govt. Hospital, Budvel and informed that the deceased died in a road accident and that when doctors objected saying that without police intimation they will not allow the dead body into the hospital it was so kept in the Van itself till the next day. Those aspects which have bearing over this case have to be probed meticulously conducting detailed enquiry in a civil suit.
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11. In the decision in FA 50/2012 this Commission held that authenticity of birth certificate issued by Registrar of Births was genuine and basing on the said decision so also another decision reported in 1993 ( 2) ALT 150 the complainant argued to believe the death certificate filed in this Case to come to a conclusion that the deceased Nadipi Venkatayya died on 12.4.2007 but in view of the special circumstances of this case described supra no importance need to be given for such a certificate. Therefore, the argument of the complainant could not be appreciated in the said context.
12. In FA 1332/2008 between Bajaj Alliance General Insurance co. Ltd Vs. Prasad Satyanarayana this commission held that repudiation by virtue of investigation said to have been made by a surveyor appointed by an insurance company who submitted his report is not correct. There is no dependable evidence in this case to come to a conclusion that it is dubious report pressed into service to repudiate the claim. Therefore the said decision is not helpful for the complainant. In a decision reported I (2012) CPJ 84 NC between Trilok khanna Vs. United India Insurance Company Ltd this Commission held that onus to prove that the insured was suffering from preexisting disease as per settled law is on the insurance company and thus the medical opinion of Dr. Nilesh Kanth Sharma was not considered in favour of the insurance company as he is not a medical expert. Absolutely the said decision is not helpful to the complainant in this case as there are grave allegations in this case about the impersonation of the dead body was made. In the decision in FA 681/2008 referred to by the complainant the date of death of the assured therein was not in dispute so also in a decision in FA 681/2008 of this Commission. . Whereas in this case, it is being seriously contested on the allegation that an impersonated dead body was used. In the decision pertaining to FA 416/2012 rendered relying upon decision reported in IV (2012) CPJ 6 (SC) since the insurance company did not prove that insured did not disclose correct facts relating to his ill health it was held that repudiation of the claim is not justified and the said decision is in no way helpful for the complainant in this case. At this stage when such serious allegations are made we cannot hold that insurance company got favourable reports from the surveyor’s to avoid payment and repudiate the same therefore the decision in FA 1332/2008 is not helpful. In a decision reported in CDJ 2011 APSCDRC 135 in FA 1113/2008 this Commission held that provisions of delay in informing the insurance company or lodging the report with the police or of little significance as these are of directory nature and not of the mandatory nature and that what is relevant is whether any such accident or occurrence has taken place or not and whether the insured has played fraud or given wrong information to take undue benefit against the insurance policy and in this case the allegation of the opposite party that the complainant had played fraud and given wrong information to take undue benefit against the insurance policy and thus the said decision is not helpful to the complaint but to some extent helpful for the opposite party. In the said decision, there were no such wild allegations as to the impersonation of the dead body and also obtaining of certificates by playing fraud. Hence the said decision wherein the police report with regard to accident was accepted as true is not helpful in this case.
13. The said insurance certificates disclose that maximum of eight certificates for accidental death are permissible and that for accidental death while riding two wheeler either as a driver or pillion Rs. Two lakhs and accidental death by any other person Rs. Three lakhs is covered under each of the certificate of insurance. It appears that by using two of such certificates orders were obtained from Ombudsman and to claim maximum amount these eight certificates in Ex. A1 were pressed into service in this case and thus there is acceptable force in the contention of the complainant that fraud was played by the complainant In such circumstances also it is necessary to probe the matter in detail which is possible only in regular Civil court and not in consumer complaint.
14. Admittedly other opposite parties remained exparte and there is serious allegation against agent of OP. 2 that in collusion with the complainant the certificates in question were obtained for wrongful gain. Had the said other Ops contested the matter things would have been clarified but it did not so happened and it is also a point against the complainant. in view of the above discussion, this Commission is satisfied with the contention of the Op.1 that complex questions of fact and law are involved in this case and that it requires that the matter should be examined by an appropriate civil court and not by this Commission and hence there is necessity to direct the complainant to approach Civil Court for redressal. In a Judgment of Hon’ble Supreme Court of India in Civil Appeal No. 4091/2006 between oriental Insurance Company Vs. Muni Mahesh Patil described supra, the action of the Commission in dismissing the complaint leaving the complainant to take appropriate proceedings for establishing his claim or seeking the reliefs in the Court of competent jurisdiction was justified. The said decision supports to relegate the complainant to Civil Court for redressal by dismissing the Consumer Complaint. Thus point no. 1 is answered against the complainant. In view of the finding in issue no. 1 , it is not desirable to decide issue Nos. 2 and 3 by this Commission. However, the discussion made in this case shall not come in the way of the Civil Court while deciding the lis as it is made only for the purpose of this case.
15. In the result, the complaint is dismissed and the complainant is relegated to Civil Court for redressal if she so chooses and in such a situation she is entitled for exclusion of the period spent between filing of the claim till disposal of the Appeal U/s. 14 of the Indian Limitation Act, 1963 for the purposes of limitation in the light of the decision of the Hon’ble Supreme Court of India in “Trai Foods Ltd Vs. National Insurance Company Ltd and another reported in (2004) 13 SCC 656”. No costs
Incharge President MEMBER
DATED: 06.11.2013.
To be continued
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For the complainant:
Ex.A1 Xerox copies of Membership Certificates
Ex.A2 Xerox copies of Insurance Certificates
Ex.A3 Xerox copies of ration card, Medical Certificate, death certificate
Ex.A4 correspondence between complainant and opposite parties
Ex.A5 Xerox copy of legal notice
Ex.A6 Xerox copy of the order of the Ombudsman and cheques issued by OP1.
Opposite Parties:-
Ex.B1 Investigation Report
Ex.B2 Letter OP1 to OP2 to furnish documents
Ex.B3 Letter OP1 to OP2 to furnish documents
Ex.B4 Letter OP1 to OP2 to furnish documents
Ex.B5 Letter OP1 to OP2 to furnish documents.
Ex.B6 Letter OP1 to OP2 to furnish documents
Ex.B7 Letter OP1 to OP2 to furnish documents
Ex.B8 Reply from OP2 to OP1
Ex.B9 Ration card
Ex.B10 RTA to the Asst. Public Information officer
Ex.B11 Reply from the Tahsildar
Ex.B12 Repudiation Letter.
Ex.B13 Video recording.
Incharge President MEMBER
DATED: 06.11.2013.
