Andhra Pradesh

Nellore

CC/25/2014

Pacha .Patcha Audemma - Complainant(s)

Versus

1.Realince Genaral Insurance Co,Ltd. Rep By its Manager - Opp.Party(s)

S.V.V.S.S.Durgaprasad Rao

31 Aug 2015

ORDER

 

                                                                Date of filing       :    22-03-2014

                                                               Date of disposal   :    31-08-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Monday, this the 31st day of AUGUST, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

 

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

         

                                 C.C.No.25/2014

 

Pacha @ Patcha Audemma,

W/o.P.Penukondaiah,

Hindu, age 45 years,

Ramalayam Street,

C.R.Palem, Bogolu (M),

SPSR Nellore District.                                             …         Complainant

 

                      Vs.

                                                                            

1)Reliance General Insurance Co.Ltd.,

   Rep. by its Manager,

   Himalaya House, 5^th Floor,

   38B, Jawaharlal Nehru Road,

   Kolkatta – 700071.

 

2) Reliance General Insurance Co, Ltd,

    Rep. by its Manager,

    Upstairs, Brindavanam,

    Behind Vijaya Dairy,

    Nellore.

 

3) Golden Multi Services Club Limited,

    Rep. by its Managing Director,

    S.B.Mansion, 16, R.N.Mukherji Road,

    Kolkatta – 700071.                                               …            Opposite parties

 

        This matter coming on  12-08-2015   before us for final hearing in the presence of Sri S.V.V.S.S.Durga Prasad Rao, Advocate for the complainant and  Sri E.V.Rami Reddy, Advocate for the  opposite parties  1 and 2,  and Sri S.Sree Ramulu, Advocate  for the opposite party No. 3 and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

This consumer case is filed by the complainant against the opposite parties 1 to 3 to direct them to pay the sum assured amount of Rs.3,00,000/- with interest at 18% p.a., from the date of the claim of the petition i.e.,             01-12-2011 till the date of realization to the complainant; to grant damages of Rs.1,00,000/- towards his mental agony suffered by him and also to grant costs of the complaint and pass such other and further reliefs as the Hon’ble Forum may be pleased to deemed it fit under the circumstances of the case.

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:-

 

I   (a)  The case of the complainant that one Patcha @ Pacha Polamma W/o.Late Patcha Venkaiah of  Chennarayunipalem (V), Bogolu (M), Nellore District, took the group personal accident policy on pressure and instigation of the agents and personnel of the 1^st opposite party on 30-08-2011 at Nellore from the 2^nd opposite party for a sum assured of Rs.3,00,000/- and nominated her (complainant) as nominee.  While so, the 1^st opposite party had issued policy bearing No.1503312914000115 in favour of the said Patcha Polamma for a period of one year (30-08-2011 to 29-08-2012).

 

(b)   It is also submitted by the complainant at page No.2 of her complaint that the above said insured person Patcha Polamma while bathing at a her house on 11-09-2011 at about 10.00 p.m. at Chenna Rayunipalem (V) and accidentally the insured of policy fell down in the bath room and received severe injuries on her head.  So, the complainant and her husband had brought insured in the vehicle to admit the said injured person to the hospital.  The injured person had admitted at Gundemadugula Devadanam Memorial Hospital, Kavali, on the same day at about 12-45 p.m. and the said injured person died with head injury due to cardio-respiratory failure by 1-00 p.m.  on  12-09-2011 and treated her by Dr.N.Prabhakar Naidu and the death certificate was issued by the above said hospital on 13-09-2011.  The complainant had shifted the dead body of Patcha Polamma to their village and completed cremation formalities with the help of the village elders and her relatives.  So, the complainant had informed the death intimation to the Bitragunta P.S. and registered the case as FIR on           13-09-2011.  The SHO, Bitragunta had conducted enquiry about death of the said Patcha Polamma, W/o.Venkaiah, but no foul play was suspected in her death and did not register in FIR and other formalities and thereby issued a death certificate on 15-09-2011 by S.H.O. Bitragunta P.S. 

( c )  It is also further submitted by the complainant that at page No.2 of her complaint that being niece and nominee of the insured Patcha  Polamma had  approached the 2^nd opposite party and  informed the death of said insured person and in turn, the information was also initially informed to the 1^st opposite party by the 3^rd opposite party through the 2^nd opposite party on 5-11-2011.  At that time, the complainant had handed over all the required papers for obtaining policy amount to the said insured as well as to the 3^rd opposite party through the 2^nd opposite party.  The 3^rd opposite party sent the same to the 1^st opposite party on 01-12-2011 for settlement of the claim of the complainant.  The letter dated 1-12-2011 and its contents may be read as part and parcel of the complaint.

 

(d)  It is also further submitted that by the complainant that at page no.2 of her complaint that the 1^st opposite party had repudiated the claim as a “no claim” for the reasons of absence of P.M. and F.I.R.  The said insured person slipped and fell down in the bath room accidentally and received head injury, succumbed to the death of the insured in the said hospital. The head injury on the insured person leads to her death and the injured person was brought to the said hospital and the said doctor was treated the patient but due to severity of the head injury on insured and later on she died.    There is no need to conduct the P.M. and so the death certificate of her was issued by the treating doctor/hospital.  The concerned SHO, Bitragunta had issued certificate.  He was conducted enquiry on the report of the complainant and thereby he had reported that there is no need registered the case and the FIR.    Because of the said reasons, the complainant could not obtained the P.M. and the F.I.R. from the concerned persons.  The opposite parties 1 and 2 have failed to pay the sum assured amount of Rs.3,00,000/- to the nominee of the insured person and thereby committed deficiency in service as promised by them at the time of taking the insurance policy.  Hence, the opposite parties 1 and 2 are liable to pay the said sum assured amount of Rs.3,00,000/- with accrued interest thereon @18% p.a., from the date of the claim petition i.e., 01-12-2011 to the complainant, being a nominee of the said insured person. 

(e) There are causes of action to file this complaint before this Hon’ble Forum.  The complainant has prayed the Hon’ble Forum to allow her complaint as prayed for.

II.  DEFENCE:

The allegations of the 2^nd opposite party against the complainant as per written version

 

(i) The complaint was resisted by the 2^nd opposite party and which was adopted by the 1^st opposite party in all particulars in their written version by denying the allegations of the complainant in the complaint.

(ii)  The complaint is not maintainable either on facts or in law against the opposite parties.  The complainant/petitioner is put to strict proof of her allegations except those which are specifically admitted in the written version.  It is true that the said insured took the policy from the opposite parties for a sum assured of Rs.3,00,000/- and nominated the complainant as nominee.  But it is false that she took the policy with the pressure and instigations of the agents and personnel of the opposite parties. 

(iii)  It is also further submitted by the opposite parties 1 and 2 that in   para-4 of their written version that these opposite parties is not aware of the fact that the insured person Patcha alias Pacha Polamma while bathing at her house on 11-09-2011 nearly at about 10-00 p.m. at Chennarayunipalem village accidentally fell down in the bath room and received severe injuries on her head and that the complainant and her husband brought the vehicle to admit the injured person at the hospital and that the injured person admitted at Dr.Gundemadugula Devadanam Memorial Hospital, Kavali and that on the same day at 12-45 hours, she died with head injury due to Cardio-respiratory failure by 1-00 P.M. on     12-09-2011 and treated by Dr.N.Prabhakar Naidu and death certificate issued by the above mentioned hospital on 13-09-2011.  These opposite parties are further not aware of the fact that the complainant shifted the dead body of Patcha alias Pacha Polamma to their village and completed the cremation formalities with the help of village elders and her relatives.

(iv)  These opposite parties are further submitted that in paras-5 and 6 of their written version that the niece and nominee of the insured person of Patcha alias Pacha Polamma, had approached the 2^nd opposite party and informed the death of insured person.  These opposite parties further submits that the complainant handed over all the papers pertaining to the insured and send the same to the 1^st opposite party on 01-12-2011 for settlement of the claim of the complainant and they repudiated the claim as a ‘No claim’ for the reasons of absence of the P.M. and F.I.R.  The postmortem report of the insured person reveals the cause of death.  But the complainant has not produced the P.M. and FIR reports of the deceased and the complainant has never informed to the opposite party insurance company about the alleged accident in this case.  Without producing the relevant documents, the complainant had simply filed the above complaint.  There is no deficiency of service on the part of the opposite parties towards the complainant.  Hence, these opposite parties’ insurance company is not liable to pay any amount to the complainant.  These opposite parties are further submits that if the Hon’ble Forum comes to conclusion that to pass any award, the liability of these opposite parties if any, is restricted to 6% only as per the decision of the Apex Court.

(v) In view of the above said allegations of the opposite parties 1 and 2 against the complainant, they are praying that the Hon’ble Forum may please to dismiss the complaint with costs.

III.  The chief affidavit of the complainant has been filed on 19-12-2014 and on her behalf, the documents Exs.A1 to A7 were marked, whereas, on behalf of the opposite parties, RW1 has been filed through one Mr.B.Ravi Kumar, who is working as Assistant Manager at Visakhapatnam on 19-12-2014 and no documents were marked on behalf of the opposite parties.  Written arguments of the complainant has been filed on 26-06-2015 and on          29-07-2015 the written arguments of the opposite parties 1 and 2 also have been filed in support of their case respectively.

 

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

 

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

                   (c) To what relief?

 

V. POINTS 1 AND 2:     In view of these two points are inter-related with each other and depends on them, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint and documents filed herein.    It is nothing but repetition of them once again in her complaint.

      Sri S.V.V.S.S.Durga Prasad, the learned counsel for the complainant has vehemently argued that the complaint, affidavit and written arguments may be read as part and parcel of his oral arguments.  He has also further argued that during his oral arguments that Exs.A1 to A7 are marked, which are supported to the legitimate claim of the complainant.  He has also reiterated the facts of the case once again and stressed much about the aspect of the insured claim by the complainant being a nominee of the policy in question.    Finally, the said learned counsel for the complainant has prayed that the Hon’ble Forum may please to allow the complaint as prayed for.

     On the other hand, Sri E.V.Rami Reddy, learned counsel for the opposite parties 1 and 2 has also vehemently argued that as usual the written version, an affidavit and written arguments on behalf of the opposite parties may be read as part and parcel of his oral arguments.  He has also further argued that the complainant is not entitled to the reliefs as prayed in the complaint because she has not submitted P.M. and FIR of the insured of the policy.  Finally, the said learned counsel for the opposite parties 1 and 2 has prayed that the Hon’ble Forum may please to dismiss the complaint with costs.

Forum findings and observations

     Heard, the learned counsel for the parties and perused the record very carefully.  Parties led their evidence by way of affidavits and their oral arguments are advanced before us, in support of their case.  Even though, Sri S.Sree Ramulu, advocate has filed his vakalath for the 3^rd opposite party and he has not filed his written version inspite of several adjournments are granted but did not evince interest or choose to contest the case and finally the 3^rd opposite party is called absent and hence, set ex-parte on 1-10-2014.

    Now, the core point is that under the said facts and circumstances of the case whether the complainant is entitled reliefs as prayed for in the complaint? In order to resolve dispute between the parties, the very concept of insurance may be looked into and its object for a decision.  The case is lingering on since 1 ½ years for various reasons which are beyond our control. 

 

      No hard and fast rule can be laid down The concept of Insurance:

 

   Because of uncertainty of human life as well as perils/risks in trade or industry, insurance business had developed and is developing.  The concept of insurance coverage springs from the principle of indemnity.  The insurance company accepts the liability to indemnify the insured for the loss suffered by her/him due to peril against the consideration (premium) received by it.  But in actual practice, the insurer by showing mandatory provisions of rules and regulations framed by them in order to turn down the pleas of insured  while disbursing the valid claims of insured at their convenience.  Foundation of insurance contract is uberrima fides i.e., good faith and not fraud.  Insurer and insured must observe utmost good faith.  The duty of good faith is of a continuing nature.  In case of ambiguity or doubt in terms of the policy it should be interpreted in favour of the insured and against the company – LIC Vs.Rajkumar (1999) 3 SCC 465.

While the Forum is excising sovereign function of dispensation of justice, it is worthwhile to remember once that the proceedings before the Consumer Fora are inquisitorial but not adversary.  The orders are required to pass in accordance with justice and equity on the basis of the evidence available on record.  Primarily, the Consumer  Protection Act, 1986 is for the protection of the consumers and matters are required to be decided by having a rationale approach and non-technical one i.e., the mandate of law.  This is made clear in the case of Indian Photographic Co. Ltd. Vs. H.D.Shourie 1999(6) S.C.C.428.  Every case has to be judged on its own facts.  In fact, the insured person of the policy died as a natural death because of health problem and there is no iota of doubt in it, being a nominee, the complainant is entitled to get reliefs as mentioned hereunder at point No.3.

Relevant case law:

1.Insurance claim is to be settled within two months of submission of material documents otherwise, the insured is entitled to interest @9% on the awarded claim amount – 2005 (2) CPR 640.

2. AIR 2001 SC 1213 – It was held that no court ought to base its decision on technicalities alone.

3.  The complainant being a beneficiary of contract, would be a consumer entitled to file a complaint – (1) 2000 CPJ 356.

About appreciation of evidence – It is a question of fact and each case has to be decided on the facts as they stand in that particular case.  We have bestowed our best of consideration to the rival submissions of the parties.  In these set of circumstances, it is apparent that there is a deficiency of service in discharging of duties by the opposite parties 1 and 2 herein by showing irrelevant reasons, such as P.M. and F.I.R. for which the opposite parties 1 and 2 are required to pay adequate compensation would certainly mean that she is deprived of benefit which she was entitled for years together, she should be adequately compensated.  Measure for adequate compensation can be a lump sum amount may be a reasonable rate of interest by way of damages.  We are satisfied that it is a fit case, where in we have to give the reliefs to the complainant.  All the documents are marked on behalf of the complainant will clearly go to show that the claim of the complainant can be said to be totally justifiable under the circumstances of the case.  So, there is a clear cut deficiency in the service on the part of the opposite parties 1 and 2 towards the complainant.  These two points are held in favour of the complainant and against the opposite parties, accordingly.

  

POINT No.3 : In the result, the complaint is allowed in part, ordering the opposite parties 1 to 3 are jointly and severally liable to pay Rs.3,00,000/- (Rupees three lakhs only) with interest @9% p.a., from the date of the complaint i.e.,  22-03-2014 till the date of realization to the complainant and also to pay Rs.50,000/- (Rupees fifty thousand only) towards mental agony and also to pay Rs.3,000/- (Rupees three thousand only) towards costs of the complaint to the complainant within one month from the date of the receipt of the order.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 31st day of August,              2015.    

 

 

              Sd/-                                                                           Sd/-      

         MEMBER                                                                 PRESIDENT(FAC)

 

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1	19-12-2014	:	Pacha @ Patcha Audemma, W/o.P.Penukondaiah, Hindu, aged about 45 years, C.R.Palem, Bogolu (M), SPSR Nellore District.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

19-12-2014

:

B.Ravikumar, S/o.B.V.Ramana, Hindu, aged about 32 years, working as Asst.Manager, residing at Visakhapatnam.

 

                                                                              

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	-	:	Attested copy of Reliance Group Mediclaim & Group Personal Accident Policy Certificate of Insurance  bearing No.014964196/703090239140Y1 in reference No.E091511100354-32155 for the period from 30-08-2011 to 29-08-2012 belongs to the deceased person Patcha Polamma.
Ex.A2	05-11-2011	:	Letter addressed by the 3rd opposite party to the 1st opposite party and copy submitted to the complainant.
Ex.A3	01-12-2011	:	Letter addressed by the 3rd opposite party to 1st opposite party and copy submitted to the complainant.
Ex.A4       Ex.A5       Ex.A6     Ex.A7	24-03-2012       13-09-2011       20-09-2011     15-09-2011	:         :       :       :	Letter addressed by the 1st opposite party to the complainant and copy submitted to the 3rd opposite party.   Attested copy of death certificate issued by Dr.N.Prabhakar Naidu, Dr.Gunde Madugula Devadanam Memorial Hospital (GDMH), Kavali.   Death certificate issued by the Panchayath Secretary of Bogolu.   Attested copy of certificate (To whom so ever, it may concern) issued by the Bitragunta P.S.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

 

			NIL -

 

         Id/-                                                                                         PRESIDENT(FAC)

 

 

Copies to:

 

1. Sri S.V.V.S.S.Durga Prasad Rao, Advocate,

D.No.27-2-956, A.C.Nagar, Nellore – 524 002.

 

2. Sri E.V.Ramireddy, Advocate,

1^st Floor, Raju Bhavan, Beside District Court,

Nellore – 524 001.

 

3. Sri S.Sree Ramulu, Advocate,

23/560, Fathekhanpet, Nellore.

 

          

 

Date when order copies are issued: