BEFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL
Present: Sri.Y.Reddappa Reddy, M.A., L.L.M., President,
And
Smt. S.Nazeerunnisa, B.A., B.L., Lady Member
Wednesday the 8th day of April, 2015
C.C.No.38/2013
Between:
T.Lakshmi Devi,
W/o Late Tamurburlala Subramanyam,
Hindu, Aged about 45 Years,
H.No.2/105, Dornipadu Post,
Banaganapalli Mandal,
Kurnool District. …Complainant
-Vs-
1. M/S Cholamandalam MS General Insurance Company Limited,
Represented by its Authorized Signatory,
Hari Nivas Towers, 2nd Floor, 163,
Thambu Chetty Street, Parry’s Corner,
CHENNAI-600 001.
2. M/S Cholamandalam MS General Insurance Company Limited,
Represented by its Managing Director,
Regd. Head Office, 2nd Floor,
Dare House, 2 NSC Bose Road,
CHENNAI-600 001. …OPPOSITE PARTIES
This complaint is coming on this day for orders in the presence of Sri.M.Sivaji Rao and Sri.P.Bhaskar Reddy, Advocates for complainant and Sri.L.Hari Hara Natha Reddy, Advocate for opposite parties 1 and 2 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri.Y.Reddappa Reddy, President)
C.C. No.38/2013
1. This complaint is filed under section 11 and 12 of Consumer Protection Act, 1986 praying:-
(a)To direct the opposite parties to pay the assured amount of Rs.3,00,000/- with interest at the rate of 24%.
(b)To pay a sum of Rs.25,000/- towards the compensation for mental agony and hardship.
(c)To pay the costs of the complaint.
(d)To pass any other such order or orders that are deem to be fit and proper in the circumstances of the case.
2. The facts of the complaint in brief run as follows:- The complainant is the widow of the insured Late.Tamurburlala Subramanyam alias Itikyala Subramanyam. Prior to the death of the insured, he took one Group Personal Accident Insurance Policy bearing No.2823-105933-CFL-0068063 on his life from the opposite party No.1 on 05.03.2012 for an amount of Rs.3,00,000/-. The period of insurance was one year commencing from 28.02.2012 to 27.02.2013. As per the terms and conditions of the policy, if any insured dies due to accident then the opposite party has to pay Rs.3,00,000/-. The complainant is the wife of the insured Tamurburlala Subramanyam and is nominee under the policy.
On 02.05.2012 Tamurburlala Subramanyam went to his daughter’s house to see her at Kaipa Village. The insured complained to his daughter about headache and giddiness. He took treatment and took rest in his daughter’s house on that day. On 03.05.2012 at above 7.00 P.M. the insured left his daughter’s house in Kaipa Village in order to go to his Village Dornipadu by taking the Motor Cycle of his Son in Law. After reaching near Kundaravagu the insured got giddiness and in the darkness he fell down in that Kundaravagu (Canal). The deceased head was struck up in to the wet mud and he died due to Asphyxia i.e., due to blockage of air passages through wet mud. On 04.05.2012 at about 8.00 A.M. the Son in Law of the deceased received a phone call about the death of his Father in law in Kundaravagu. Then the Son in Law and his wife both went to the scene and found that the deceased head was completely covered with struck up in the wet mud resulting the death of the insured. Thus the deceased died due to accidentally falling into the vagu. The Koilakuntla Police Registered a case in Crime No.34/2012 under Section 174 of Cr.P.C. The Medical Officer of Community Health Centre, Koilakuntla conducted the Post Mortem over the dead body of the deceased and opined that the cause of death is due to Asphyxia due to obstruction of Air passages by wet mud. The police have conducted investigation and closed the file by sending a final report to the J.F.C.M., Allagadda by stating deceased died due to accidental fall into vagu. As the deceased suffered with accidental death the complainant who is no other than wife of the deceased and nominee under the policy, is entitled to get the entire policy amount.
The complainant submitted her claim form to the opposite parties by stating all the facts which lead to the death of her husband accidentally. On 29.03.2013 opposite party No.1 sent a letter by repudiating the claim on the ground that the deceased was driving Motor Cycle without a valid license. But the deceased got headache and giddiness in that night time, due to which he fell down in to the vagu, resulting the struck up of his head in the wet mud and died due to Asphyxia. The action of the opposite party in repudiating the claim is not proper and correct. There is deficiency of service on the part of opposite parties in not settling the claim of the complainant and repudiating the same on flimsy grounds. Hence he prays to pass an order in favour of the complainant and against the opposite parties by directing them to pay assured amount of Rs.3,00,000/- with interest at 24%, to pay a sum of Rs.25,000/- towards compensation for mental agony and costs of the complaint.
3. On service of notice opposite party No.1 filed written version by contradicting all the allegations of the complainant made in her complaint. Opposite party No.2 adopted the written version filed on behalf of the opposite party No.1. The sum and substance of the written version filed on behalf of the opposite party No.1 in brief run as follows. Though it is mentioned that the complainant has to strictly prove her relationship with the insured, the policy obtained by the insured etc., in the subsequent para’s of written version they admitted with regard to issuance of the policy in favor of said insured and its validity from 28.02.2012 to 27.02.2013. They are also not disputing with regard to place where the deceased fell down into Kundaravagu on 03.05.2012 and about his death as his head was struck up in the wet mud and due to Asphyxia. They are also not disputing with regard to claim forms submitted by the complainant to the opposite parties for settlement of the claim amount. They have only stated, on 18.03.2013 the company addressed a letter to the complainant requesting her to produce driving license of her deceased husband and in response to the said letter the complainant gave reply by stating that her husband Late.T.Subramanyam had no valid and effective driving license at the time of his death. They further stated driving of a Motor Cycle without a valid driving license is a punishable under the Motor Vehicles Act. The Act of the deceased was in violation of the law which unfortunately attracts the provisions of policy exclusion No.7, of the policy issued by the company i.e.,
Part-II (Exclusion) Clause-7
“Any loss of which a contributing cause was the insured’s actual or attempted commission of, or willful participation in, an illegal act or violation or attempted violation of the law or resistance to arrest”.
Though the event is an accident, the cause and an event leading to the accident are excluded under the policy. The claim of the complainant falls outside the scope of cover of the policy. Complainant is not entitled for any amount under the policy alleged to have been issued by the company. Hence he prays to dismiss the complaint against the opposite parties with costs.
4. The complainant filed sworn affidavit in support of her contention. In the sworn affidavit she had stated all the facts which are mentioned in her complaint. Apart from her sworn affidavit she also produced as many as 7 documents in support of her contention and all those documents are marked as Ex.A1 to Ex.A7. On behalf of the opposite parties, Assistant Manager of the opposite party No.1 filed sworn affidavit in support of their defence and marked as Ex.B1 to Ex.B9. In the sworn affidavit he also reproduced all the facts which are mentioned in the written version filed on behalf of the opposite party No.1.
5. After closure of evidence on behalf of the both parties they have submitted both written and oral arguments in support of their respective contentions.
6. Now the points that arise for consideration are:
- Whether there is any deficiency of service on the part of opposite parties in repudiating the claim of the complainant?
- If so? To what relief the complainant is entitled?
7. POINT No.i:- There is no dispute with regard to obtaining of policy by Late.T.Subramanyam from opposite party No.1, its validity from 28.02.2012 to 27.02.2013, his death on 03.05.2012 due to fall in Kundaravagu and his death due to Asphyxia as his head was struck up in the wet mud. It is also not in dispute with regard to relationship of the complainant with the deceased and about mentioning of her name as nominee in the policy, in the policy issued by the opposite parties in favour of the Late.T.Subramanyam. The main defence of the opposite parties is when they have sent a letter to the claimant by requesting her to produce driving license of her husband, she sent a written reply by stating her husband was not holding valid driving license at that time. Now it has to be looked into whether the complainant sent any written reply to the opposite parties by stating her husband was not possessing valid driving license at the time of the accident. The opposite parties are mainly relying on Ex.B6 and Ex.B7 to prove their version with regard to sending written reply by the complainant to the opposite parties. A perusal of the Ex.B6 reveals one N.Ramesh of Dornipadu wrote the contents of the said document. Ex.B6 is in the hand writing of one Ramesh. LTI of a person was obtained against a “X” mark below words “ఇట్లు” “తమ విధేయురాలు”. It is not known who affixed the said LTI (Left hand thumb impression) in that document i.e., Ex.B6. Nothing is written against the said LTI by stating whose LTI it is and who obtained it. It is not known whether the contents of the said document were read over and explained to the person who affixed LTI in the said document. It is not possible to come to conclusion that LTI available in Ex.B6 is that of complainant only and its contents were read over and explained to her before subscribing LTI thereon.
A perusal of Ex.B7 shows it is in the hand writing of one Rama Subbaiah of Dornipadu. The details of said Rama Subbaiah who he was, who is his father, and what is his address or phone number etc., are not available below the name of Rama Subbaiah. In this document an LTI of a person is taken. Against the said LTI it is written as LTI of Lakshmi Devi. If one compares LTIs are available under Ex.B6 and Ex.B7 it is clearly visible even to the naked eye that they are not of the one and same person and are distinct and different from one another. The opposite parties failed to produce any evidence by examining either N.Ramesh who is the alleged scribe of Ex.B6 or Rama Subbaiah who is alleged scribe of Ex.B7. If these two persons were examined on behalf of the opposite parties, the complainant might have got an opportunity to cross examine then and elicit the truth whether those two persons wrote the contents of Ex.B6 and Ex.B7 after eliciting the facts from her or not? Whether they have read over and explained the contents of the same to her and whether they have obtained her LTIs under those two documents with her free will and volition. It is from the opposite parties to explain how the LTI’s available under ExB6 and Ex.B7 are distinct and different from one another. Non examination of the scribes of Ex.B6 and Ex.B7 is fatal to the contention of the opposite parties and repudiation of the claim made by the opposite parties, basing on alleged written explanation of the complainant under Ex.B6 and Ex.B7 that her husband was not holding valid driving license at the time of accident is not tenable. Opposite parties are not coming forward with any explanation for non examination of the alleged scribes of Ex.B6 and Ex.A7 and their own surveyor who alleged to have been investigated and submitted report to opposite parties.
The F.I.R. in Crime No.34/2012 Koilakuntla P.S., is marked as Ex.A2. This is first document that came into existence after the death of the deceased. In this document it is stated “Maa Mama Motor Cycle nu naduputhu aayana vaagulo padi vundavachu leda pramadhavashathu bridge pai nundi aayana padi vundavachu”. Ex.A3 is the Inquest Report. Under column No.15 of Ex.A3 the Panchayatdars opined “03.05.2012 తేది సాయంత్ర సమయము 7.00 gantalappudu bhojanamu chesi Kaipa Gramamu nundi thana alluni motor cycle AP21 AB 8941 motor cycle nu thisukuni danipai vastu Bhimunipadu Kampamalla metta madhyalo elanti rakshana godalu leni Kundaravagu bridge pai nundi motor cycle tho saha kundaravagu lo padutavalana pothi thala neetiloni buradalo kurukoni poyi oopiri aadaka chanipoga 04.05.2012 thedi udayam 9.00 gantalaku pothi maranam kanipettabadinadhani pachayati darulamaina maa yokka ekabhiprayamu”. Under Ex.A4 doctor who conducted Post Mortem over the dead body opined cause of death to the best of his knowledge is Asphyxia due to obstruction of Air passages by wet mud. The police who investigated in to the matter submitted the final report to the J.F.C.M., Allagadda, by stating “The complainant, daughter and brothers of deceased and relatives of deceased not expressed any foul play on the death of deceased, who died due to fallen from motor cycle by accidentally”. The police who investigated into the matter did not find that the accident occurred due to non holding of the license by the deceased at the time of accident. No material was collected by the investigation agency with regard to non possessing of the driving license by the deceased at the time of accident. The police are not saying they have searched at the accident place thoroughly and they did not find the driving license of the deceased at the place of accident. Police submitted final report to the J.F.C.M., under Ex.A5. They did not say anything in Ex.A5 about non possessing of driving license by the deceased at the time of accident. Even in F.I.R., no allegation is made by the deceased. As the police who investigated into the matter did not entertain any doubt or suspicious with regard to driving license of the deceased it has to be primafacia presumed that deceased was having a driving license and it might have missed at accident place. Admittedly, the place where accident had taken place is a vagu where there is stagnation of water and presence wet soil i.e., “Burada matti”. The death of the deceased is also due to struck up of his head in the wet mud. So there is every likely hood of missing of driving license of the insured which was with him either in the water or in the wet mud (Burada Matti). It is not proper on the part of opposite parties to come to a conclusion basing on the alleged admission of complainant with which she had no knowledge at all. After the complainant is an illiterate and agricultural labour. There is little scope for her to have any knowledge about possessing or non possessing of driving license by the deceased. Except alleged admission of the complainant, the opposite parties did not make any effort to find out whether the deceased was possessing driving license at the time of accident or not. They did not initiate any steps, either by summoning the RTI to find out whether the deceased had obtained any driving license or not etc. There is no wisper in Ex.B9 either with regard to non possessing of the driving license by the deceased or accident occurred due to his negligence i.e., due to his inefficient driving. As already discussed above Panchayatadars who conducted inquest over dead body of the deceased opined accident might have taken place due to non availability of protection wall on either side of the bridge which is inexistence over Kundaravagu. The counsel for opposite party No.1 relied on decisions reported in III (2008) CPJ Page 158 and I (2008) CPJ Page 194. The principle lad down in those decisions is proper and correct. But they are not applicable to the facts of the present case, as the opposite parties miserably failed to produce any evidence by filing the sworn affidavit or by examining the persons who alleged to have been recorded statement of the complainant and also the person who investigated into the matter and submitted report to opposite parties. Hence it is not possible to take it, as granted that the complainant admitted that her husband was not holding driving license at the time of accident. As already discussed above opposite parties failed to produce any other independent evidence which is within their perview to establish that the deceased was not having driving license at the time of accident and the repudiation made by them is proper and correct. Obtaining of false statement alleged to have been given by the complainant clearly shows the malafide intention of the opposite parties that they were intending to create some ground or other to repudiate the claim of the complainant, instead of settling the claim as per law. Hence we hold the conduct of the opposite parties in repudiating the claim of the complainant by fabricating two documents i.e., Ex.B6 and Ex.B7 alleged to have been obtained from the complainant after examining her and explaining the contents there on to her before obtaining her LTIs there on and creating a false ground that the deceased was not having driving license at the time of accident and failure on the part of opposite parties to substantiate the same is lacunae on the part of opposite parties and there is deficiency of service on the part of opposite parties. Hence we hold this point in favour of the complainant and against the opposite parties.
8. POINT No.ii:- While Answering point No1, we have elaborately discussed that the ground created by the opposite parties for repudiating the claim of the complainant is not substantiated by producing any evidence which is within their perview and on the other hand they tried to create some evidence in collusion with the third parties by asking them to write the contents of Ex.B6 and Ex.B7 and obtained LTI thereon by some third parties and tried to impress us that the LTIs under Ex.B6 and Ex.B7 are that of complainant only and she admitted under those documents her husband did not possess driving license at that time. Conduct of opposite parties in fabricating the documents in collusion with one Ramesh and Rama Subbaiah and repudiating the claim of the complainant basing on such fabricated evidence is not proper and correct. Complainant suffered a lot of mental agony due to such illegal act of the opposite parties. Hence we passed an award in favour of the complainant and against the opposite parties by directing them to pay a sum of Rs.3,00,000/- with interest at 9% per annum from the date of death of the deceased till the date of payment or realization whichever is earlier and also to pay a sum of Rs.10,000/- by way of compensation towards mental agony with which the complainant suffered due to unlawful repudiation of her claim by the opposite parties and also to pay a sum of Rs.2,000/- towards costs of this CC.
9. In the result the complaint filed by the complainant is here by partly allowed and we direct the opposite parties to pay a sum of Rs.3,00,000/- to the complainant with interest at 9% per annum from date of death of the deceased till the date of payment or realization whichever is earlier and also to pay a sum of Rs.10,000/- by way of compensation towards mental agony with which the complainant suffered due to unlawful repudiation of her claim by the opposite parties and also to pay a sum of Rs.2,000/- towards the costs of this CC.
We direct opposite parties to pay the amounts as directed above to the complainant within one month from today failing which the complainant is at liberty to execute this order and realize the same by proceeding against opposite parties according to law .
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 8th day of April, 2015.
Sd/- Sd/-
LADY MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties: Nil
List of exhibits marked for the complainant:-
Ex.A1 Photo copy of Policy Certificate bearing
No.2823/105933/CFL/0068063.
Ex.A2 Photo copy of F.I.R., in Crime No.34/2012 dated 04.05.2012 of
Koilakuntla Police Station.
Ex.A3 Photo copy of Inquest Report dated 04.05.2012.
Ex.A4 Photo copy of Report of Postmortem examination dated 08.05.2012.
Ex.A5 Photo copy of Final Report.
Ex.A6 Photo copy of Death Certificate issued dated 19.05.2012
Ex.A7 Photo copy of Repudiation Letter dated 29.03.2013.
List of exhibits marked for the opposite parties:-
Ex.B1 Policy Certificate bearing No.2823/105933/CFL/0068063.
Ex.B2 Photo copy of Repudiation Letter dated 29.03.2013.
Ex.B3 Personal accident Claim Form No.2823001908.
Ex.B4 Claim Letter.
Ex.B5 Photo copy of Letter dated 18.03.2013 addressed from opposite parties to complainant.
Ex.B6 Letter submitted by the complainant to opposite parties.
Ex.B7 Letter addressed by the complainant to company.
Ex.B8 Photo copy of Certificate of Registration along with Xerox copy of vehicle damage Photos.
Ex.B9 Photo copy of Final Report.
Sd/- Sd/-
LADY 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 :
