BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

C. C. 38/2009

Between:

Smt. M.M.P. Lakshmi Tulasi

W/o. Late M. Prasad Chowdary                 

R/o. Plot No. 527 & 528, Flat No. 201

Sai Arcade, VI Phase, KPHB Colony

Kukatpally, Hyderabad                               ***                         Complainant

                                                                   And

1)  M/s. ICICI Lombard General Insurance Company Ltd.

Rep. by its Manager,

Regd Office : ICICI Bank Towers

Bandra Kurla Complex,

Bandra East, Mumbai-400 051.

2)  M/s. ICICI Lombard General Insurance Company Ltd.

ICICI Bank Towers, Begumpet

Hyderabad.                                                          ***                         Opposite Parties   

Counsel for the  Complainant:                    M/s.  U. Venkateswara Rao

Counsel for the OPs:                                   M/s. Katta Laxmi Prasad.

CORAM:                  

   HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT        

                                                    &

 SMT. M. SHREESHA, MEMBER

FRIDAY, THIS THE TWENTY SIXTH DAY OF NOVEMBER TWO THOUSAND TEN

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

                                                          ***

1)                This is a complaint filed against the insurance company claiming assured sum of Rs.  25 lakhs together with interest @ 12% p.a., and costs.

2)                The case of the complainant in brief is that she is the wife of late M. Prasad Chowdhary.  During his life time he took personal care policy covering the period from 24.6.2008 to 23.6.2009 with  Op1 for a sum of Rs. 25 lakhs  by paying  one time premium of Rs. 2999.73 evidenced under personal policy certificate dt. 23.6.2008.    She is the beneficiary and nominee under the certificate.    While so,  he was found dead on  3.4.2009  in a drain near  Anjaneya  Swamy  temple  in  KPHB colony  along  with  his  Yamaha  bike.   On a report the police registered a case in Crime No. 396/2009 on 4.4.2009 followed by post-mortem examination.      When the said fact was intimated to the insurance company, it repudiated the claim on the ground that the policy has been cancelled on 12.8.2008.    The said fact was not intimated to her or to her husband during his life time.    Unilateral cancellation of policy was not valid.   Assailing the repudiation she filed the complaint claiming Rs. 25 lakhs covered under the policy together with interest and costs.

3)                Opposite Party No. 2 resisted the case by filing written version adopted by Op1.    While denying various allegations, however it admitted issuance of personal care policy on the basis of proposal subject to payment of premium and submission of mandatory documents.    One of the conditions of the policy is that the company has discretion to cancel the policy and forfeit the premium so received besides other conditions viz., medical undertaking and the declaration that there are no other policies etc.  It never received any premium.  The policy was cancelled at proposal level on 12.8.2008 as no payment was received.   The policy was cancelled much earlier to date of death of the deceased.   No cause of action has arisen and this Commission at Hyderabad had no jurisdiction.  Since the main office is situated at Mumbai, only courts at Mumbai have jurisdiction to resolve the dispute.     Detailed enquiry crime records were not filed.    Issuance of certificate would not give any cause of action to file the complaint.    There was no policy on the date of death of the deceased.    Unilateral cancellation is permissible by virtue of terms of the policy.    The very non-submission of final charge sheet shows that the claim was premature.    The repudiation was not challenged and therefore it 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 A8 marked while the insurance company filed the affidavit evidence of its Manager and did not file any documents.

5)       The points that arise for consideration are:

                     i.        Whether the opposite party has issued a valid personal care policy on receipt of premium amount?

                   ii.        Whether the opposite party has cancelled the policy during the subsistence of the life of the assured.

                  iii.        Whether this Commission has  territorial jurisdiction to try the case?

                  iv.        To what relief?

6)                It is an undisputed fact that the complainant is the wife of late M. Prasad Chowdhary.  He has submitted Ex. A2 proposal form based on which opposite party insurance company issued personal care policy along  with certificate covering the period from 24.6.2008 to 23.6.2009 for a sum of Rs. 25 lakhs.  There was mention that premium payable  was at Rs. 2,999.73.  It is also not  in dispute that  the assured  died on  3.4.2009 for which a case in Crime No. 396/2009  u/s 174 Cr.P.C. was registered  vide FIR Ex. A5 Dt. 4.4.2009.    There was a categorical mention that  while the assured was returning on  his  bike  after making arrangement for  Sri Rama Navami festival  at Anjaneya Swamy  temple he fell in a drain on the side of the road.    The post-mortem examination was conducted by   Asst. Professor, Department of Forensic Medicine, Gandhi Medical College, Secunderabad  who opined that he died due to  head injury vide Ex. A6.   The police after investigation  opined that   “ On 3.4.2009  after 23.00 hours while he was returning  to home from  Anjaneya Swamy temple, phase-I, KPHB colony, Kukatpally on his two  wheeler vehicle Yamaha TN 22 2979 accidentally  got his vehicle skid  and fell into the drainage line which is found all along  at Phase-II, KPHB colony, Kukatpally along with his vehicle due to which  he received injury at his head with stone and died.   There is no  investigation is pending and no foul play found in this case to suspect and punish anyone as per law, as such a final report is herewith filed before the Hon’ble  Court praying to close the case referring as ‘accidental death due to fall’  vide Ex. A8.   

7)                When the complainant submitted the claim along with death certificate Ex. A3 issued by  GHMC, Kukatpally  the insurance company repudiated the claim on the ground that  the assured had not paid any amount towards premium and therefore policy was cancelled  as long back as on 12.8.2008  by their letter Ex. A1 dt. 13.5.2009.    The fact that such cancellation letter was sent by the insurance company,  and   was received by the complainant or her husband is not evidenced by any document.    It may be stated herein,  that Personal Care Policy Certificate  could  not have been issued without receipt of premium.   Though it contends that by mistake it was sent there is no proof  as to how  it could be process  and  sent to the complainant.    There is no embargo  on  the insurance company to receive the amount in cash.    At no point of time the insurance company informed  the assured that  it  did not receive any premium.    When  they had filed policy certificate the question of proving payment of premium  would not arise.    For the reasons best known the insurance company did not file the cancellation letter said to have been  made on 12.8.2008.    The learned counsel for the complainant filed  terms and conditions of ‘ Individual  Personal  Accident Policy Wording’    

Condition No. 9 stipulates  that “the company may at any time, cancel this policy by giving  seven days  notice in writing  by registered post with acknowledgement due to the insured  at his last known address in which the case company  shall liable to repay  on  demand  a rateable proportion of the premium for the unexpired term from the date of the cancellation.  The insured may also  give seven days notice in writing  to the company, for the cancellation of this policy, in which case the company shall from the date of receipt of notice cancel the policy and retain the premium for the period  this policy has been in force at the companies short period scales.    In  the event that the insured has issued a cancellation to the company and a claim had been made during the insurance period, which was settled by the company, the company shall be entitled to retain the whole premium amount.”

8)                It may be stated herein that  the  insurance company did not file any document to show that notice was served on the complainant  or on her husband during his life time before cancellation of policy recoursing to the above said condition.    If really notice of cancellation was sent by registered post with acknowledgement due  the insurance company must have acknowledgement with it.    Non-filing of acknowledgement  would undoubtedly

show  that the insurance company in order to get over  the payment of  the amount invented  this averment that they had cancelled the policy.     The burden is on the  insurance company to prove it  which it did not discharge.    If really they had rejected it is un-natural  for the insurance company  to issue policy certificate without even receiving the premium.    This is a classic  case  where the insurance company  in order to refute the just claim has  come up with a false plea that the policy certificate was given without receipt of  any amount towards premium and later that it had cancelled.    Neither of the facts was  proved.  Undoubtedly the complainant was entitled to the amount covered under the policy.    It is unfortunate that the opposite party a reputed insurance company  could take such an unsubstantiated plea  in order to defeat the just claim of a widow.    Therefore, we are of the opinion that the insurance company had to pay the amount claimed under the policy. 

9)                 The insurance company  contended that as per terms of agreement Ex. A2  all the disputes are subject to the jurisdiction of  Mumbai  courts only.    It is not in dispute that  the complainant’s husband a resident of Hyderabad paid the premium amount in the branch office of the insurance company at Hyderabad.  The policy certificate was issued at Hyderabad.    Obviously, the opposite parties are under mistaken notion that the State Commission at Hyderabad  has no jurisdiction solely on the ground that  there was a clause in the  agreement.    Evidently the provisions of  C.P.C.  would not apply to the proceedings under the Consumer Protection Act (the ‘Act’ for short)    A specific provision is inserted in the very Act dealing with jurisdiction.    Section 11(2)(a) of the Act  stipulates  that if opposite parties carries on business  or has  a branch office  and personally  works for gain  at a place, then at that place the complaint can be lodged (vide  Superintendent of Post Offices Vs. Harbur Singh III (2002) CPJ 205.)    Therefore this contention has no legs to stand.

10)               In the result  the complaint is allowed  directing the  opposite party insurance company  to pay Rs. 25 lakhs with interest @ 12% p.a., from the date of complaint viz., 3.7.2009 till the date of realization together with costs of Rs. 5,000/-.  Time for compliance four weeks.

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

COMPLAINANT:                                                    OPPOSITE PARTIES

          None                                                                     None.

DOCUMENTS MARKED FOR COMPLAINANT:

Ex. A1;        Repudiation letter dt. 13.5.2009

Ex. A2;        Personal Accident Policy issued by Op1  in favour of

                   M. Prasad Chowdhary dt. 23.6.2008.

Ex. A3;        Death certificate dt. 3.4.2009

Ex. A4;        Household card  dt. 5.12.2005.

Ex. A5;        Copy of FIR No. 396/2009 issued by P.S. Kukatpally dt. 4.4.2009.

Ex. A6;        Copy of post mortem report dt. 4.4.2009.

Ex. A7;        Claim form submitted to R2 dt. 27.4.2009.

Ex. A8;        Copy of final report in Cr. No. 396/2009 Dt. 4.5.2009.

DOCUMENTS MARKED FOR OPS:                                NIL

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

                                                                                      Dt. 26.11.2010.

*pnr.

CORRECTED – O.K. – - EXHIBTS