BEFORE THE DISTRICT FORUM: KURNOOL

Present: Sri. T.Sundara Ramaiah , B.Com B.L., President

And

Sri. M.Krishna  Reddy , M.Sc., M.Phil., Male Member

Friday the 28^th day of January, 2011

C.C.No 132/10

Between:

1. B.Varalaxmi, D/o. Late Sekhar, Hindu, aged about 9 years,

(Minor rep. by her Natural Guardian, Mother T.Lalitha) E.Tandrapadu Village,Kurnool Mandal, Kurnool.

1. Telugu Lalitha, W/o late Sekhar,

E.Tandrapadu Village, Kurnool Mandal, Kurnool District.            

                       …..…Complainants

                                  -Vs-

1. The Divisional Manager,Oriental Insurance Company Ltd.,

40-383, Bhupal Complex, KURNOOL - 518 002.       

1. The Child Development Project Officer,Child Development Project Office, ICDS., Project Kurnool (Rural),

Opp. T.G.Venkatesh  Kalyana Mandapam, B-D1/11, B. Camp,

KURNOOL -518 003.                     

 ….…Opposite  PartIES

        This complaint is coming on this day for orders in the presence of Sri. M. Sivaji Rao, Advocate, for complainant, and                       Sri. L. Hariharanatha Reddy, Advocate for opposite party No.1 and Opposite party No.2 called absent and upon perusing the material papers on record, the Forum made the following.

ORDER

(As per Sri. T.Sundara Ramaiah, President)

C.C. No. 132/10

1.     This complaint is filed under section 11 and 12 of C. P. Act, 1986 praying:-

1. To pay the assured amount of Rs.25,000/- along with other benefits mentioned in the policy schedule with interest,
2. To pay sum of Rs. 10,000/- towards the compensation for causing mental agony and hardship,
3. To pay the costs of this complaint,
4. To pass any other relief or reliefs that are deem to be fit and proper in the circumstances of the case.

(2)    The case of the complainants in brief is as under:- The first  complainant is the daughter and the second complainant is the wife of the deceased Sekhar.  On 09-09-2008 the second complainant paid a sum of Rs.18/- to OP.no.1 through OP.No.2 towards the premium for Bhagyashree Child Welfare Policy.  The opposite party No.1 issued a Policy No.3479 as per the terms and conditions of the policy.  The first opposite party under took to pay an amount of Rs. 25,000/- in case of death of either of parents or both parents. On 22-12-2008 Telugu Sekhar, father of the first complainant accidentally fell into Tungabhadra River while attending calls or nature.  The dead body was found on 24-12-2008. After search on the complaint by the second complainant, Kurnool Taluk police registered a case in Cr. No.345/2008 under section 174 of Cr.P.C. After the death of Sekhar the complainants submitted claim to OP.No.1 through OP.No.2.  OP.No.1 repudiated the claim on 08-03-2010 stating that the deceased was under influence of intoxicating liquor at the time of drowning. There is deficiency of service on the part of OP.No.1.  Hence the complaint.

3.     OP No.2 was set exparte. OP.No.1 filed written version stating that the complaint is not maintainable.  It is admitted that the first complainant is covered under the Bhagyashree Group Policy issued by the OP.No.1.  As per the terms and conditions of the policy, OP.No.1 is not liable for payment of compensation in respect of death of parents arising out of “Whilst under the influence of intoxicating liquor or drugs”.  The deceased, Sekhar was under the influence of intoxicating liquor when he fell into river on 22-12-2008. Therefore OP.No.1 is not liable to pay any compensation to the first complainant.  The death of the deceased is not accidental.  There is no deficiency of service on the part of opposite party No.1.  Opposite party No.1 is not liable to pay compensation to the complainant.   The complaint is liable to be dismissed.

4.     On behalf of the complainants, Ex.A1 and A7 are marked and the sworn affidavit of the complainant is filed.  On behalf of the opposite party No.1, Ex.B1 to B.4 are marked sworn affidavit of the OP.No.1 is filed.

5.     Both sides filed written arguments.

6.     The points that arise for consideration are:

1. Whether there is deficiency of service on the part of OP.No.1.
2. Whether the first complainant is entitled to the reliefs as prayed for?
3. To what relief?

7.     Point No. 1 & 2:-     The first complainant is minor daughter of the deceased late Sekhar and second complainant.  It is the case of the complainants that the first complainant is the member of Bhagyasree child welfare policy issued by the first opposite party.  Ex.A1 is the receipt issued by OP.no.1 showing the payment of premium of Rs.18/- by the first complainant.  The fact that the first complainant is covered under the Bhagyasree Group Policy issued by OP.No.1 is not under dispute.  Admittedly after the death of Sekhar, a claim was made to OP.No.1 and the said claim was repudiated by OP.No.1 stating that the death of Sekhar was not accidental and that Sekhar fell into river due to influence of intoxicating liquor.  The complainants to show that Sekhar died due to drowning into the river relied on EX.A1 to A4.    As seen from Ex.A1 to A4, it is very clear that Sekhar, the father of the first complainant fell into river on                      22-12-2008 and died.  The burden is on the insurer to prove that the deceased fell in to river due to influence of liquor.  The OP.No.1 relied on Ex.B1 to B2 to show that the Sekhar was under the influence of liquor when he fell into river.   Ex.A2 is copy of FIR. It is mentioned in Ex.A2 that one T. Sheshanna informed the second complainant, who is the wife of the Sekhar, that Sekhar consumed intoxicating liquor.  In Ex.A3 also, it is mentioned that the deceased consumed intoxicating liquor on the date of his death.  It is submitted by the learned counsel appearing for the complainants that in the post mortem certificate.  Ex.A4 there is no mention that the deceased consumed liquor and that he was under the influence of liquor when he fell into river.  In Ex.A4 post mortem certificate, it is mentioned that the deceased died due to ASPHYXIA DUE TO DROWNING.  The OP.No.1 failed to establish that the deceased was under the influence of liquor when he fell in to river.  There is no medical evidence on record to show that the death of Sekhar has arisen whilst under the influence of intoxicating liquor on 22-12-2008.  Merely because there is mention in Ex.A2 FIR that the deceased was under the influence of liquor on 22-12-2008 it cannot be said that the OP.No.1 as discharged its burdens.  The second complainant who gave the report to policy about the death of her husband is not on eye witness to the incident.  There is not mention in Ex.A.2 that he second complainant was present when her husband fell into river on 22-12-2008.  Admittedly OP.No.1 issued the group insurance policy under taking to pay a sum of RS. 25,000/- in case of accidental death of either of the parents of minor child.  In the present case, there is evidence to show that Sekhar who is the father of the first complainant died accidentally by drowning in Thungabhadra River on 22-12-2008.  The OP.No.1 is not justified in repudiating to claim of first complainant.  There is deficiency of service on the part of OP.No.1.

8.     In the result, the complaint is partly allowed directing the                 OP. No.1 to deposit an amount of Rs. 25,000/- in the Forum with in two months from the date of order.  On such deposit the said amount shall be deposited in a Nationalized Bank for a period of ten years.  The first complainant is entitled to the said amount of Rs.25,000/-  and interest thereon, on attaining the age of majority.  The complainant against OP.No.2 is dismissed.

Dictated to the stenographer, transcribed by him, Corrected and pronounced by her in the open bench on this the 28^th day of January, 2011.

Sd/-                                                                                                                                                                                                                                                                                                                                                                                Sd/-

MALE MEMBER                                                            PRESIDENT

APPENDIX OF EVIDENCE

   Witnesses Examined

For the complainant : Nil            For the opposite parties : Nil

List of exhibits marked for the complainants:-

Ex.A1        Photo copy of premium receipt NO.3479 of Oriental Insurance Company Ltd., Kurnool.

Ex.A2.       Photo copy of FIR Crime NO.345/2008 of Kurnool

Taluk P.S.

Ex.A3.       Photo copy of inquest report, dt.24-12-2008.

Ex.A4.       Photo copy of Post Mortem Report dt.24-12-2008.

Ex.A5.       Photo copy of final report of Kurnool Taluk Police Station.

Ex.A6                Photo copy of repudiation letter dt. 08-03-2010.

Ex.A7.       Photo copy of policy terms and conditions.

List of exhibits marked for the opposite parties:

Ex.B1.       Photo copy of FIR Crime NO.345/2008 of Kurnool

Taluk P.S.

Ex.B2.       Photo copy of inquest report dt.24-12-2008.

Ex.B3.       Repudiation letter dt. 08-03-2010.

Ex.B4.       Photo copy of police terms and conditions.

             Sd/-                                                                      Sd/-

    MALE MEMBER                                                       PRESIDENT

// Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties

Copy was made ready on :

Copy was dispatched on   :