BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

F.A. 1723/2007 against C.C.  57/2005,   Dist.. Forum, Karimnagar    

Between:

Yaladandi Suguna

W/o. Bakkaiah,

Age: 45 years, Household

H.No. 8-5-33/3/1,

Shivanagar locality of

Siricilla (P&M)

Karimnagar Dist.                                       ***                         Appellant/

                                                                                                Complainant.    

.                                                                  And

L. I. C. of India

Siricilla Branch

Rep. by its Branch Manager

Siricilla, Karimnagar Dist.                          ***                         Respondent/       

                                                                                                Op.  

Counsel for the Appellants:                         M/s. P. Raja Sripathi Rao

Counsel for the Resps:                                M/s. P. Rajasekhar.

CORAM:

                         HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

                                                             &

  SMT. M. SHREESHA, MEMBER

TUESDAY, THIS THE TENTH DAY OF AUGUST TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                Unsuccessful complainant preferred this  appeal  against the order of the Dist. Forum in dismissing  her claim towards double accident benefit under the policy.   

2)                The case of the complainant in brief is that  her son late Ashok  took an insurance policy  with accident benefit  for a sum of Rs. 25,000/-  on 28.7.2002  vide Ex. B1 commencing from  28.7.2000 to  28.1.2030 keeping his wife  Latha  as his nominee.    While so on  1.9.2000 Ashok died in a road accident which was registered as a case in Crime No. 108/2000 u/s 304-A and 337 IPC  against the driver of the lorry.    When there were disputes between her and  Latha  the wife of policyholder,   they filed a suit before the Junior  Civil Judge, Siricilla and during the pendency of the case the respondent insurance

company had deposited  Rs.  26,486/- being the sum assured  with interest however disallowed the double accident benefit.   Smt. Latha being issueless entered into a compromise  with her  and took her half share  and remarried another person.    As she had no other go she withdrew the said suit.  She being the sole legal heir  in fact entitled to  the double accident benefit, however the same was repudiated on the ground that the deceased  was in a drunken state and traveling along two others on scooter.    There was no involvement of her son  in regard to the accident.  The case was filed against the lorry driver.    Alleging that the repudiation was unjust, she claimed double accident benefit of Rs. 25,000/- together with interest, compensation of Rs. 10,000/- and costs.

3)                The respondent insurance company resisted the case.   However, it admitted issuance of policy in favour of late Ashok.  When nominee, wife of the deceased claimed the amount  and  filed suit O.S. No. 155/2000  on the file of  Junior Civil Judge’s court at Siricilla  it had settled the claim, deposited into the court  towards full and final settlement of the claim under the policy.   She had withdrawn  the amount.  On the post-mortem examination conducted on the deceased by the medical officer he  reported that the stomach contains  toddy.  Besides three persons were riding the scooter contrary to  the Motor Vehicles Act and the Rules  framed  thereunder.     Since he was under the influence of  alcohol  excludes payment of accident benefit under policy condition No. 10.   She was not entitled to any compensation and therefore prayed for dismissal of the complaint with costs. 

4)                The complainant in proof of her case filed her affidavit evidence  and got Exs. A1 to A3 while the insurance company filed the affidavit evidence of its  Administrative Officer and got Exs. B1 to B4 marked. 

5)                The Dist. Forum after considering the evidence placed on record opined that the complainant had already initiated the action before the Junior Civil Judge, Siricilla for recovery of the amount, pursuant to which the insurance company deposited  the amount and she withdrew the suit.   The claim was satisfied in the year 2002 and the complaint was filed on 7.3.2005  and therefore barred by limitation,  besides that there was violation of policy condition the  assured being in an intoxicated condition.    The Dist. Forum dismissed the complaint. 

6)                Aggrieved by the said decision,  the complainant preferred the appeal contending that the Dist. Forum did not appreciate either  facts  or law in correct perspective.    It ought to have seen that  she is the legal heir of late Ashok entitled to the double accident benefit as his wife having received her share and remarried another person, consequently lost her right  to claim the amount.   Since the death was accidental she was entitled to double accident benefit. 

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is an undisputed fact that  Latha wife of the deceased was nominee  under the policy Ex. B1.    On the death of the deceased,   his wife as well as the  complainant herein  filed a suit O.S. 155/2000 on the file of Junior Civil Judge, Siricilla impleading  the insurance company as a party.  The insurance company accordingly  deposited the sum assured with interest by disallowing the double accident benefit.  On such deposit the complainant as well as wife of the deceased  had taken their share of the amounts.    After receiving her share of amount  she claimed double accident benefit  which was repudiated by the insurance company by letter dt.  5.2.2005 alleging that  they have already intimated in December, 2000  for denial of death benefit on the ground that 1) the deceased consumed alcohol at the time of accident and that 2) he was traveling with two others persons contrary to  Motor Vehicles Act and the Rules framed there under. 

9)                Obviously, when claim was repudiated,  the complainant filed  a suit and the matter was ended in compromise  on receiving her share of amount.  From the repudiation letter, it discloses that  she was intimated about the fact that she was not entitled to double accident benefit  for the reasons mentioned above.    When she claimed the amount under the policy, there is no doubt that she did not insist  for the benefits  covered  under the policy be paid to her.    Having received the amount covered under the policy  five years there after she cannot again claim that  one of the benefits  was not paid to her.  It was not a different cause of action.   This claim was evidently repudiated  in  December, 2000.  Basing on which  she filed a suit.  Again when she claimed  the accident benefit it was  repudiated once again. 

10)              Except her pleadings, it is not known why  the complainant did not implead the nominee  wife of the deceased.  Except alleging that she married another person and she was not entitled to the amount contrary to Hindu Succession Act.   In fact remarriage will not disentitle to claim her share,  no evidence was placed.  Even other wise the complainant having  filed a suit for recovery of  the amount covered under the policy ought to have claimed the double accident benefit.  It seems that neither of the parties  has filed the plaint  or settlement made between them in the earlier suit filed by the complainant.    It is not known whether such a claim was made  and the same was withdrawn by virtue of their compromise.   Though strict rules of C.P.C are not applicable, it cannot be said that  rules under Order II Rule 2  CPC are against principles of natural justice.    Having taken  a recourse to  suit,   and on its rejection  the complainant cannot invoke the jurisdiction of consumer fora, more so, without impleading the nominee who is the wife of policy holder  to the proceedings.   Assuming without admitting that she is entitled  to double accident benefit  she cannot appropriate the entire amount.  Even otherwise,  post-mortem examination report  Ex. B2 shows that  deceased was under the influence of liquor while driving the scooter contrary to the policy condition No. 10 (1)   one of the conditions is that :

          The corporation shall not be liable  to pay the additional sum referred  in the schedule if  the disability or the death of the  life assured  shall  be caused by intentional self injury, attempted suicide, insanity or immorality or whilst  the life assured is under the influence of intoxicating  liquor, drug or narcotic etc.

11)              There might be violation of  M.V. Act and the Rules framed there under  by traveling three persons on a scooter. We may state that Hon’ble Supreme Court  in  Amalendu Sahoo Vs. Oriental Insurance Company Ltd. reported in II (2010) CPJ 9 SC  opined  that carrying more than the capacity would not entail repudiation of entire claim.    It may be considered  on non-standard basis, and 25% of the amount could be deducted. 

12)              However, in the case on hand,  in the light of the fact that  the complainant  is not the nominee and the nominee is  his wife  who is alive and the complainant may be a  legal heir  without impleading the other legal heirs cannot claim  the amount.  Even otherwise, earlier she having filed a suit  for the self same relief cannot circumvent the order by invoking the jurisdiction of  Consumer Forum.    We do not see any merits in the appeal.

13)              In the result the appeal is dismissed.  No costs.

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER

                                                                             Dt.     10. .08. 2010.

*pnr

“UP LOAD – O.K.”