This C.C. is coming on before us for hearing; in the presence of             Sri. Sd. Dawood Ali, Advocate for complainant; and of Sri. B. Gangadhar, Advocate for opposite parties No.1, 4 & 5; and of Sri. G. Harender Reddy, Advocate for opposite parties No.2 & 3; and of Sri. G. Sita Rama Rao, Advocate for opposite party No.6; upon perusing the material papers on record; upon hearing and having stood over for consideration, this Forum passed the following:-

O  R  D  E  R

(Per Smt. V. Vijaya Rekha, Member)

This complaint is filed under section 12(1) of the Consumer Protection Act, 1986. 

2.      The brief facts as mentioned in the complaint are that the husband of complainant No.1 and the father of complainants No.2 & 3 was joined as a member in Chit bearing No.K.G.L.L.2013/36, managed by opposite party No.2, He was declared as a successful bidder on 21-12-2001.  Among the bid amount, the opposite party No.2 retained some amounts towards payment of subscription in Road Safety Club Programme and by paying the same, enrolled the name of husband of complainant No.1 as a Member in Road Safety Club on 30-09-2002.  Thereafter, the husband of complainant No.1 met with an accident on 25-11-2003 and injured grievously.  His right hand was functionless and the left hand was fractured, due to which, he became permanently disabled and taken treatment as inpatient for 82 days from 25-11-2003 to 16-02-2004 and again he had also taken treatment from 16-02-2004 to 21-06-2004.  After that he had taken treatment as outpatient for 126 days.  Due to multiple injuries, he was in bed at about 208 days, thereafter, taken treatment at home due to unable to bare the medical expenses as inpatient.  The complainants further submitted that the health condition of injured was deteriorated after a long illness.  Finally, he died on 05-05-2007.  During his life time, submitted claim form along with medical certificate. He approached the opposite party No.2 at his office on many times for settlement of claim upon the statements of it that the claim was under process.  The complainant also submitted that as per the certificate of membership, issued by opposite party No.3, the liability in payment of Rs.1,000/- towards weekly expenses in case of accidental injuries, Rs.3,00,000/- towards accidental dismemberment and Rs.3,00,000/- towards permanent total disability / accidental death.  The complainant alleges the negligence on the part of opposite party No.2 with regard to non-processing of claim papers to the Chennai office.  Despite payment of insurance amounts, the opposite party No.5 issued policy certificate for the extended period from 13-04-2008 to 12-04-2009 i.e. after death of the injured.  After receipt of legal notice, the opposite party No.2 replied that no claim has been reported to it till 12-08-2008 and assured that on receipt of claim papers, it will process the same to the insurer.  The attitude of opposite party No.2 causes mental agony and financial difficulty to the family members of the injured.  Therefore, the complainants filed the present complainant by alleging the negligence on the part of opposite party No.2 and prayed this Forum to direct the opposite parties No.1,3,4,5 and 6  to pay Rs.3,00,000/- under insurance coverage together with interest @12% per annum and Rs.12,000/- towards weekly maintenance for 29 months and 5 days towards treatment for accidental  injuries.  Further the complainants prayed to direct the opposite party No.2 to pay Rs.1,50,000/- towards compensation for causing mental agony due to non processing of claim papers and costs of the complaint. 

3.      In support of their case the complainants filed Exhibits A-1 to A-14.

4.      On being noticed, the opposite parties No.1 to 6 filed separate counters by denying the averments as mentioned in the complaint.

5.      The opposite party No.2 filed counter by admitting that Sri Y. John Raju was joined in the Chit Group bearing No. K.G.L.L.2013/36 of opposite party No.2 and also the member of Road Safety Club / opposite party No.3.  The opposite party No.3 issued membership certificate by collecting required premium.  Further it is also submitted that the accident was not intimated and it did not aware the treatment taken by the husband of complainant No.1 from 16-02-2004 to 21-06-2004 and died on 05-05-2007. The complainants not submitted claim Form either after accident or after death.  So the question would not arise regarding the non-processing of claim to its Head Office and as such the complaint is bad for mis-joinder of necessary party.  The opposite party No.1 issued the policy through the opposite party No.3, therefore, the complainants have no cause of action to file this case against it and no deficiency of service on its part and prayed to dismiss the complaint with exemplary costs.

6.      In the counter, the opposite party No.3 also submitted the same averments as mentioned in the counter of opposite party No.2, in addition to that, it was also submitted that the complainants issued legal notice on 06-08-2008 without giving intimation of accident / death.  In response to the legal notice, issued reply notice on 12-08-2008 by informing that no claim has been reported, on furnishing, forward the same to the insurer for processing of claim, but the complainants kept silent, straight away, issued legal notice after 1 year 3 months of death.  Further it is also submitted that the insurance company will solely liable to pay the insurance amounts.  The complainants approached this Forum without utilizing arbitration clause as mentioned in its programme. The complainants have no cause of action and no deficiency of service on the part of it and prayed to dismiss the complaint with exemplary costs.

7.      The opposite party No.3 filed copy of application query regarding the membership particulars from 30-09-2002 to 29-09-2010, marked under Ex.B-1.

8.      The opposite parties 1,4&5 jointly filed the counter by submitting that the present complaint is not maintainable either in law or on facts and also barred by limitation.  Further they also submitted that no legal notice was served on opposite parties No.1,4&5 and no promise was made by them regarding the processing of claim.  There was no policy coverage at the time of accident.  The policy was issued by opposite parties No.1, 4&5 from 30-09-2006 whereas, the accident was occurred on 25-11-2003 and the injured was taken treatment till death i.e.05-05-2007, therefore, it is clear that the policy was obtained by suppressing ill health and as such there is no cause of action to file the present complaint against the opposite parties No.1,4&5 and prayed to dismiss the same with costs.

9.      On behalf of opposite parties No.1,4&5, the policy document for the period from 13-04-2008 to 12-04-2009 was marked under Ex.B-2.

10.    In its counter, the opposite party No.6 submitted that the policy was issued by it for the period from 12-10-2002 to 11-10-2003 but the accident was taken place on 25-11-2003.  Therefore, there was no policy in existence as on the date of accident and as such there is no liability as alleged and the complaint is bad for misjoinder of necessary of parties.  Further it is also submitted that the husband of complainant No.1 was not died due to accidental injuries.  There is no PME report and no clarification regarding non-filing of PME.  As per section 12 (1) of C.P. Act, this complaint is not maintainable against opposite party No.6 as there is no relationship between the complainants and the opposite party No.6 and as such the complainants cannot allege the deficiency of service on the part of it, therefore, prayed to dismiss the complaint with costs.

11.    Along with a petition vide IA.No.166/2011 the opposite party No.6 filed policy particulars pertaining to policy No.GPA000120J for the period 12-10-2002 to 11-10-2003.  Thereafter, by filing a memo, the opposite party No.6 also filed the list of insured persons, joined through Road Safety Club for policy No.GPA000120J, those were marked as Exhibits B-3 and B-4 respectively.  

12.    The complainant No.2 filed his Chief Affidavit by mentioning the same averments of complaint and also filed copy of plaint in recovery of money suit filed by the opposite party No.2 against his father and 3 others.  Through a petition vide IA.No.151/2013, the complainant No.2 filed certified copy of docket order of FTC, Kothagudem, dt.13-09-2007 in MATOP No.249/2005 filed by late John Raju, marked under Exhibit A-14. 

13.    In support of their averments, the complainants No.1 to 3 and opposite parties No.1,4,5 & 6 were filed written arguments by reiterating the same averments as mentioned in their pleadings.

14.    In view of above submissions, now the point that arose for consideration is,

Whether the complainants are entitled to the relief as prayed for?

Point:-

According to the afore stated averments and basing on the material on record, it is clear that during his life time, the husband of complainant No.1 and the father of complainants No.2 and 3 (during the proceedings the complainant No.4 was died) was joined in the Road safety Club programme, launched by opposite party No.3 through the opposite party No.2 vide certificate No.78525 for the period 30-09-2002 to 29-09-2010.  As part of it, the opposite party No.6 issued group personal accident policy, covering the risk out of accident for the period from 30-09-2002 to 29-09-2003.  Vide policy No.GPA0000120 and also given another policy bearing No.GPA000120J for the period from 12-10-2002 to 11-10-2003. Unfortunately, on 25-11-2003 the husband of complainant No.1 met with an accident and sustained grievous injuries.  As per complaint, he underwent treatment as inpatient from 25-11-2003 to 21-06-2004 and also taken treatment for 126 days as outpatient and died on 05-05-2007 due to accidental injuries.  The complainants alleged the deficiency of service on the part of opposite party No.2 in processing of claim, submitted by Sri John Raju, during his life time by claiming insurance amounts under accidental benefits.  As there was no response even after his death, the legal heirs of him was filed the case on hand by claiming insurance amounts.  On the other hand the opposite parties No.1 to 6 denied almost all the averments of complaint by contending that the accident was neither intimated nor claimed and as such the present complaint is not entertained by this Forum as there was no deficiency of service on the part of them.  After having gone through the material available on record, we have observed that the complainants No.1 to 3 and the opposite parties No.1, 4, 5 & 6 were filed the same policy copies, existed for the periods from 30-09-2002 to 29-09-2003 and from 12-10-2002 to 11-10-2003 issued by opposite party No.6, evidenced under Ex.A-3 and B-3 and the another policy for the period from 30-09-2008 to 29-09-2009, issued by opposite parties No.5, marked as Exhibit B-2.  In fact, the alleged accident took place on 25-11-2003 i.e. after expiry of first two policies, issued by Tata AIG General Insurance Company Ltd., / opposite party No.6, commenced for the period 30-09-2002 to 29-09-2003 and 12-10-2002 to 11-10-2003 i.e. the accident was occurred after 56 and 44 days of expiry of respective policies.  Thereafter, the husband of complainant No.1 was died on 05-05-2007.  According to the record, it was found that there is no policy document was filed on record either by the complainants or by the opposite party No.3 for the relevant period of death.  The policy issued by opposite parties No.1,4&5 indicates the validity of policy period as from 30-09-2008 to 29-09-2009, which was issued after 16 months of death of husband of complainant No.1.  Except the above mentioned three policies, no other policy certificates were filed on record even on behalf of complainants. 

The complainants alleges the deficiency of service on the part of opposite party No.2 in non-processing of Claim papers to the insurer to avoid payments under accidental benefit policy.  But the opposite parties all are resisted the same by contending that except legal notice, there is no intimation regarding the accident and no Claim Form was submitted till the date of issuance of legal notice and as such the present complaint has no cause of action and prayed to dismiss the same as there was no deficiency of service on their part. 

To prove their averments, the complainants did not file any documentary proof relating to intimation of accident and submission of claim papers after the accident and also failed to file any other correspondence, made between the complainants and opposite party No.2.  In the absence of relevancy of proof, filing of medical bills and the other documents having no weight in proper adjudication for fastening of liability under deficiency of service.  Without filing relevant / enough documentary proof, oral submissions are not treated as conclusive proof of evidence.  In our view, without establishing deficiency of service, the present matter cannot be entertained under Consumer Protection Act. It is a cardinal principle of law that ordinarily, the burden of proving the fact rests on the party, who asserts the affirmative issues and not on the party who denies it. In the case on hand, there is no evidence on record with respect of submission of claim papers towards accidental injuries and the other benefits and also no denial or rejection of claim by the opposite parties in settlement of claim.  Therefore, we cannot assume the cause of action, when it was started.  Generally, cause of action is a bundle of facts, it means the cause of action for which the suit it brought.  In this case, the complainants issued legal notice on 06-08-2008 for payment of insurance amounts after 15 months of death of husband of complainant No.1.  In the context of limitation with reference to a personal accident coverage policy, undoubtedly, the date of accrual of cause of action has to be the date on which the accident was taken place.  Thus, the limitation for the purpose of section 24 (a) of the Consumer Protection Act began to run from the date of accident i.e. 25-11-2003 as the injured was died due to accidental injuries out of accident.  Therefore, the complaint filed by alleging the deficiency of service for non-processing of claim papers under the accident policy, ought to have been filed within two years thereof.  In fact, the present complaint was filed nearly after 5 years from the date of accident, which was clearly barred by limitation, the same view was expressed by the Hon’ble Apex Court in Kandimalla Raghavaiah & Company Vs. National Insurance Co. Ltd., & Anr. decided on 10^th July 2009. 

In the light of above decision and in view of above observations the point is answered accordingly against the complainants.       

15.    In the result, the complaint is dismissed.  No costs.

           Typed to dictation, corrected and pronounced by us in the open Forum, on this the 16^th day of February, 2017.

                                                         FAC President              Member      

    District Consumer Forum,

      Khammam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:-

For Complainant                                                    For Opposite party  

       -None-                                                                       -None-

DOCUMENTS MARKED:-

For Complainant                                                    For Opposite party

FAC President              Member

     District Consumer Forum, Khammam.