F.A.No.869/2008 AGAINST C.C.No.41/2007, DISTRICT FORUM, NALGONDA.

Between:

M/s. The Oriental Insurance Company Limited,

Divisional Office, Near Bus stand,

Suryapet, rep. by its Divisional Manager.                                                         Appellant/O.P.

          And

1. Nagella Bharathi, W/o.Bharataiah,

    Aged 52 years, Occ:Household.

2. Nagella Srinivas, S/o.Bharataiah,

    Aged about 22 years, Occ:MCA Student,

 Both resident of Ravindranagar locality of

Nalgonda Town and District.                                                                             Respondents/

                                                                                                                             Complainants.

Counsel for the Appellant: Mr.M.Hari Babu

Counsel for the Respondents: Mr.V.Narasimha Rao.

 QUORUM:   THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

                                                          AND

                                                SMT.M.MSHREESHA, MEMBER.

MONDAY, THE TWENTIETH DAY OF SEPTEMBER,

                                                                                 TWO THOUSAND TEN

  (Typed to the dictation of  Smt.M.Shreesha, Hon’ble Member)
***

        Aggrieved by the order in C.C.No41/2007 on the file of District Forum, Nalgonda, the opposite party  preferred this appeal.

        The brief facts as set out in the complaint are that the first  complainant is the wife and the second complainant is the son of late Nagella Bharataiah and during his life time the said N.Bharataiah took an individual Janata Personal Accident Policy on 10-9-1997 which is valid upto 9-9-2007.  On 28-8-2006 he died in a motor cycle accident and the complainants who are his legal heirs made a claim application on 17-12-2007 and the same was received by the opposite parties but there was no response.  Hence the complaint seeking direction to the opposite party to pay the sum assured with interest, compensation and costs.

        Opposite party filed counter admitting the issuance of the policy but contend that as per condition No.6 of the policy, they can cancel it at any time by giving notice in writing to the policy holder.  If the notice is sent to the postal address last registered in their company’s book, it shall be deemed to be served on the policy holder.  Opposite party further stated that they sent the notice on 28-3-2002 to the policy holder through RPAD that the policy was cancelled together with refund of the premium amount paid.  The acknowledgement signed by the policy holder has been misplaced.  The policy was not in force as on the date of the death of the insured and the nominee in the proposal form is one N.Sattemma and they also dispute that the first complainant herein is the wife and since the policy was cancelled on 28-3-2002 itself, the complainants are not entitled to any claim amounts.

        The District Forum based on the evidence adduced i.e. Exs.A1 to A8 and B1 to B5 allowed the complaint directing the opposite party to deposit Rs.5,00,000/- with interest at 9% p.a. from 28-8-2006 together with costs of Rs.1500/-.  These amounts are to be paid to the complainant subject to the result of O.S.No.29/2006 on the file of District Court, Nalgonda. 

        Aggrieved by the said order, the opposite party preferred this appeal.

        The issuance of Janata Personal Accident Policy is not in dispute and the period of coverage from 10-9-1997 till 9-9-2007 is not in dispute.  It is the complainants’ case that the opposite party did not settle their claim inspite of their claim application dated 17-12-2007.  It is the contention of the appellant/opposite party that the policy conditions are binding on the parties and also that the death was not immediately informed to the opposite party to enable them to investigate the cause of death and that there is no proof like FIR filed to evidence that the death was caused by an accident.  The learned counsel for the appellant also contended that as per clause 6 of the conditions of the policy, the company may at any time by notice in writing can return to the insured, the last paid premium less prorata part and cancel the policy and therefore there is no deficiency in service on their part. 

        Condition No.6 of the policy reads as follows:

        The company may at any time by notice in writing cancel policy provided that the company shall in that case return to the insured the then last paid premium less pro-rata part thereof for the portion of the current insurance period which shall have expired.  Such Notice shall be deemed sufficiently given if posted addressed to the insured at the address last registered in the company’s books and shall be deemed to have been received by the insured at the time when the same would be delivered in the ordinary course of post.  Long term policies may be cancelled at the request of the insured after retaining the premium for the expired risk on annual basis (Part of the year shall also be reckoned as year) calculated on the basis of the same premium structure which was used for collecting premium at the time of issuing the policy.

        In the instant case it is the contention of the appellant that no notice was given U/s.6 of the policy informing the complainant that the policy was cancelled and in reply the appellant/opposite party contended that the acknowledgement was lost.  The appellant/opposite party filed the affidavit of the Divisional Manager who submitted in his affidavit that the acknowledgement signed by the life assured is misplaced.    We observe from the record that vide Ex.B4 dated 28-3-2002 the appellant/opposite party has included the name of the life assured Bharataiah figures under Development Officer No.502, Agent No.257 with a refund of Rs.750/-.  The refund slip which is at the bottom of this exhibit is dated 01-10-2002 and we also observe that the annexure to this exhibit includes the name of the life assured.

The second contention of the appellant is that the nominee as per the policy is N.Sathemma whereas this complaint is filed by Nagella Bharathi and Nagella Srinivas who are not the nominees in the said policy.  We observe from Ex.A1 which is the policy schedule issued by the appellant/insurance company that the nominee’s name is given as N.Sathemma whereas the complainants herein are Nagella Bharathi describing as the wife and Nagella Srinivas of late Nagella Bharataiah.

        The third contention of the appellant is that the accident being the cause of death has not been established by the complainants and that no FIR was filed to prove the same.  We observe from the record that no FIR has been filed and also that there is no other documentary evidence filed by the complainants to establish the cause of death as ‘accident’ when it is the complainants’ contention that the life assured died on 28-8-2006 in a road accident while returning on his motor cycle, the burden of proof is on them to establish the death as ‘accident’.  Except for Ex.A4, which is the copy of the death certificate and only states that the life assured late Nagella Bharataiah has died, the cause of death has not been established by the complainants herein.  To reiterate, keeping in view that the policy itself has been cancelled as per Section 6 and that the cause of death as ‘accident’ has not been established by the complainants, we are of the considered view that the repudiation by the appellant/opposite party is justified and hence the appeal is allowed and consequently the complaint is dismissed.

        For the aforementioned reasons, the appeal is allowed and consequently the complaint is dismissed.  There shall be no order as to costs.

                                                                                                                Sd/-PRESIDENT.

                                                                                                        Sd/-MEMBER.

JM                                                                                                             Dt.20-9-2010