IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 30th day of September, 2016
Filed on 10/07/2007
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.298/2015
between
Complainant:- Opposite Party:-
Smt. Pushpalatha The Manager, LIC of India
W/o late Vijayaraghavan P. Kurup Branch Office No.1
Vazhuthakkad House Vellakkinar, P.B. No. 444
Amayida, Ambalappuzha Alappuzha
(By Adv. Priya Nair) (By Adv. S. Devalal)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant is the widow of Mr. Vijayaraghava P. Kurup who died in a road traffic accident. The accident happened on 29.03.2008 at Puthuppurakkal Junction, Amayida, Ambalappuzha, Alappuzha District due to the hit of KL-04/3943 Enfield Bullet on KL-X/979 Activa Scooter on which the deceased was riding on. The deceased had availed a personal accident policy from the opposite party with No.390244438. When the complainant approached the opposite party claiming the sum assured the opposite party effected only part payment and demanded the chemical analysis report for disbursing the accident benefit. The complainant applied for the chemical analysis report at the Ambalappuzha Police Station many times but could get the reply that there was no chemical analysis report with regard to the above accident and the complainant communicated with the opposite party many times and passed the above information. Over the years the complainant had communications with the opposite party for getting the accident benefit of the deceased husband disbursed in favour of the complainant. The opposite party has evaded payment on lame excuses and at last the complainant filed a complaint before the Insurance Ombudsman and the same was rejected on 13.3.2014. The opposite party has no right to with-hold the amount due to the complainant. The act committed by the opposite party amounts to deficiency in service and hence the complaint is filed.
2. The opposite party filed version is as follows:-
The deceased has taken a policy numbered 390244438 from the Corporation. The policy issued with date of commencement 28.3.1995 was for Rs.75,000/- basic sum assured. The amount of Rs.2,09,528/- was received by the complainant in her capacity as the nominee of the deceased insured in full and final satisfaction of all claims under the policy. In the postmortem certificate there was a clear finding that stomach was ¾th full with soft paste like food particles mixed with altered blood having a strong alcohol like smell. Hence there was proof of consumption of alcohol. The complaint is barred by limitation. The claim was originally settled. The claim was originally settled as early as on 26.5.2008 as stated above. Chemical Analysis Report was called for to consider the claim for Double Accident Benefit. There is no explanation for the delay in preferring the above complaint after a long lapse of 8 years. The complainant did not even file a petition to condone the delay. A combined reading of both the postmortem report and the chemical analysis report leads to one and only irresistible inference that there was presence of enough quantity of alcohol in the stomach of the deceased emitting strong smell of alcohol at the time of accident. There was no deficiency in service on the part of the opposite party.
3. The complainant was examined as PW1. Documents produced were marked as Exts.A1 to A6. No oral evidence on the side of the opposite party and produced one document marked as Ext.B1.
4. The points that arose for considerations are as follows:-
1) Whether the complaint is barred by limitation?
2) Whether there is any deficiency in service on the side of the opposite parties?
3) Whether the complainant is entitled to get compensation and costs?
5. It is an admitted fact that complainant availed an amount of Rs.2,09,528/- from the opposite party as per the policy No. 390244438. According to the complainant her husband who died in a road traffic accident on 29.3.2008 had also availed a personal accident policy from the opposite party and when she approached the opposite party claiming sum assured, the opposite party effected only part payment and demanded the chemical analysis report for disbursing accident benefit. Opposite party filed version stating that the amount of Rs.2,09,528/- was received by the complainant in full and final satisfaction of all claims under the policy and while considering the claim form double accident benefit, since there was a strong alcohol like smell reported in the postmortem certificate, the complainant was asked to produce chemical analysis report to prove any variation from the above finding in the postmortem report. They also stated that as per clause 10b(i) of policy which reads as follows:-
“The Corporation shall not be liable to pay the additional sum referred in (a) or (b) above if the disability or death of the life assured shall (i) be caused by intentional self injury, attempted suicide, insanity or immorality or whilst the Life assured is under the influence of intoxicating liquor, drug of narcotic.”
Hence it is the bounden duty of the complainant to prove that the life assured is not under the influence of intoxicating liquor. Ext.A1 is the letter dated 26.5.2008 issued by the opposite party to the complainant. On perusing the documents, it is seen that the opposite party demanded the complainant to furnish chemical analysis report for examining the accident benefit. On getting such letter complainant has not sent any reply to the opposite party stating the reason for not
producing the chemical analysis report. Ext.A2 is the true copy of the analytical data dated 31.10.2008 issued by the Asst. Chemical Examiner which shows that, “Ethyl alcohol was detected in the sample of blood.” On perusing the Ext.A2 it is seen that it was attested by the Professor of Government T.D. Medical College, Alappuzha on 28.2.2015. According to the complainant he had received it on 28.2.2015. But the document itself shows that it was issued on 31.10.2008 and it was attested on 28.2.2015. No supporting evidence is adduced to prove that the Ext.A2 issued only on 28.2.2015 and the attestation in the document shows that it was attested as true copy on 28.2.2015. Hence the allegation of the complainant that she had received it on 28.2.2015 is not seen as true. Even after getting the Ext.A1 letter dated 26.5.2008 from the opposite party no effort was taken by the complainant to produce the chemical analysis report before the opposite party. At last the complaint is filed 7 years after the receipt of that letter. Hence the complaint is barred by limitation. Even though the complainant filed a petition for condoning the delay no reliable documents produced to support the reason for the delay in filing the complaint before the Forum.
6. Coming to the merit of the case it is seen that the opposite party repudiated the claim stating that as per the postmortem report, there was proof of consumption of alcohol. Hence they demanded chemical analysis report. On perusing Ext.A2 the chemical analysis report, it is clear that Ethyl alcohol was detected in the blood. According to the complainant there was no strong alcohol like smell, but just a feeble smell that due to the consumption of homeo medicine. But there is no document to substantiate the allegation of the complainant that the insured was consuming homeo medicine during the time of accident. In the absence of any such evidence it was difficult to believe that Ethyl Alcohol detected in the sample of blood was due to the consumption of homeo medicine. From the above discussion it is clear that there is no defect or deficiency in service on the part of the opposite party in repudiating the claim of the complainant.
In the result, the complaint is dismissed.
Dictated to the Confidential Assistant transcribed by me and pronounced in open Forum
on this the 30th day of September, 2016.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Vijesh Vijayaraghavan (Witness)
Ext.A1 - Letter dated 26.5.2008
Ext.A2 - Report of Analysis
Ext.A3 - True copy of the FIR
Ext.A4 - Postmortem report dated 30.3.2008
Ext.A5 - Letter dated 13.3.2014
Ext.A6 - Acknowledgement card
Evidence of the opposite parties:-
Ext.B1 - Copy of the death claim letter from LIC
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- pr/-
Compared by:-
