OF 2008 AGAINST C.C.NO.55 OF 2007 DISTRICT CONSUMER FORUM ONGOLE AT PRAKASAM DISTRICT

Between

Beeram Bharath Reddy
S/o late B.Venkata Narayana Reddy
aged about 26 years, R/o D.No.9-222
Neelakantamvari Veedhi, Kothapet
Kanigiri-523230, Prakasam District                

Appellant/complainant

        A N D

1.     Divisional Manager,
        The New India Assurance Co., Ltd.,
        Park Lane, Divl. Office-612 400
        205, 206 & 207 II floor, Chenoy
        Trade Centre, Park Lane, Secunderabad-003

2.     Divisional Manager,
        The New India Assurance Company Ltd.,
        Upstairs of Central Bank,
        Nellore Bus Stand, Ongole

Respondents/opposite parties

Counsel for the Appellants            Sri Srinivas Karra

Counsel for the Respondents                Smt S.N.Padmini

 QUORUM:          THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
                    SMT M.SHREESHA, HON’BLE MEMBER

&

                            SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

                           WEDNESDAY THE SIXTH DAY OF OCTOBER

                                            TWO THOUSAND TEN

                Oral Order ( As per R.Lakshminarsimha Rao, Member)
                                                         ***

1.     The unsuccessful complainant is the appellant.

2.     The factual matrix of the case is that the father of the appellant B.V.Narayana Reddy was Advocate and member of Bar Council of Andhra Pradesh which had obtained long term Janata Personal Accident Insurance policy for its members and their family members covering the risk of their lives in case of death of permanent disability due to an accident.  The insurance policy bearing No.612400/479950199 was issued  in favour of the appellant’s father, his mother and the complainant for a sum assured of Rs.2,50,000/-.  The appellant’s father died at Veligandla Mandal, Prakasam District and his mother also died due to injuries sustained in an accident on 4.11.2005 while she was traveling as pillion rider on a motor cycle on BEL Road, Jalhali Bangalore, when a petrol tanker bearing registration No.KA19-AB-9990 came from behind and dashed against the motor cycle.

3.     A case was registered in Cr.No.331 of 2005 under section 279 and 304(A) of IPC by the police Yaswanthpur.  Postmortem examination was conducted on the body of the complainant’s mother. The doctor opined that the complainant’s mother died due to shock and hemorrhage as a result of multiple injuries she had sustained in the accident.  After the death of his mother the appellant claimed the sum assured.  The respondent insurance company had sent letter dated 20.6.2006 seeking submission of relevant documents.  The respondent insurance company had issued letter dated 11.10.2006 informing the appellant that the claim would be decided after disposal of the case pending before the Hon’ble High Court of Andhra Pradesh.  Challenging the decision of the respondent insurance company that the settlement of the claim would be subject to the result of the case pending before the High Court, the appellant has filed the complaint before the District forum.

4.     The respondent insurance company filed counter admitting issuance of Janata Personal Accident Policy in favour of the appellant and his mother B.Kalavati as also the death of the appellant’s father and that of his mother.  It is also an admitted fact that the respondent insurance company issued letter dated 11.10.2006 stating that the case would be decided only after disposal of the case that was pending before the High Court.  It was contended that as per the terms and conditions of the insurance policy both parties entered into contract.  As a matter of policy decision the head office respondent insurance company issued a notice to the appellant’s father prior to notifying his intention to cancel the contract as per the condition no.5 of the insurance policy.  The receipt of notice was acknowledged and after deducting premium for the lapsed period remaining amount was paid as per condition no.5 of the insurance policy.  It is,  thus contended that the appellant cannot question the legitimacy of the respondent insurance company’s right to cancel the contract.  The civil court is stated to have been the proper court to entertain the complaint,  for the issue involved is a question of law under revocation of contract by the respondent insurance company.  As the policy was already cancelled, the validity of the cancellation of the contract can only be done in a different forum not before the consumer forum.

5.     The complainant has filed his affidavit.  The Divisional Manager of respondent insurance company has filed his affidavit.

6.     No documents have been marked on either side though Photostat copies of insurance policy, claim, letters dated 17.4.2006, 20.6.2006, and 11.20.2006 issued by the respondent insurance company and the letter dated 10.5.2006 and 24.7.2006 addressed to the respondent insurance company had been filed.

7.     The District forum dismissed the complaint opining that in view of the pendency of the case involving the same subject matter before High Court, the complaint could not be entertained by it.

8.     Feeling aggrieved by the order of the district Forum, the complainant has filed the appeal contending that the respondent insurance company failed to show issuance of the notice was issued to the appellant’s father prior to notifying its intention to cancel the insurance policy and refund of premium amount to him.  The subject matter of the case before the High Court has no connection to the facts of the complaint before the District Forum.  The contract of insurance can be deemed to be in force till the premium amount is refunded by the respondent insurance company.

9.     The points for consideration are:

1)                Whether the District Forum can proceed with the complaint involving the subject matter of which a case is pending before the High Court?

2)                Whether the insurance policy was cancelled by the respondent insurance company during the life time of the appellant’s father?

3)                Whether the appellant is entitled to the sum assured under the insurance policy?

4)                To what relief?

10.    POINTS NO.1 AND 2  The complaint was dismissed by the District Forum on the sole ground that the writ petition involving the subject matter of the complaint had been pending before the High Court of A.P.  In the counter, the respondent insurance company has pleaded as under:

It is further submitted that this Hon’ble Forum was pleaded to dismiss two cases bearing No.C.D.No.202 of 2002 and C.D.No.221 of 2002 on 17.6.2004 after elaborate hearing.  It is further submitted that a case is pending before the A.P.High Court for the same purpose.  Since a higher court is deals a court (case) had similar facts which is filed on a representative capacity.  This case is not maintainable in this forum at this stage.

11.    The appellant has not denied in his affidavit the pendency of the case of the same subject matter before the High Court.  It appears that the power of respondent insurance company to cancel the insurance policy has been under challenge in the case pending before the High Court.  Certainly, the result of the case pending before High Court has bearing on the facts of the case and disposal thereof by the District forum.  It is pertinent to note that the appellant has not denied the fact of cancellation of insurance policy by the respondent insurance company during the life time of appellant’s father and refund of the premium amount to him.  Instead, the appellant has chosen to subject the respondent insurance company to prove the factum of cancellation of insurance policy and refund the premium amount, which in the absence of any denial by him before the District Forum cannot be held sustainable.  The case pending before the High Court involves comprehensive enquiry and in the circumstances the pendency of the case before the High Court is certainly subjudice, for the District Forum to proceed with the complaint filed before it.  The points no.1 and 2 answered against the appellant.

12.    POINTS NO.3 AND 4 We have already held that the pendency of the case in the High Court has relevance and bearing on the disposal of the complaint by the District Forum.  The appellant has not chosen to deny the statement of the respondent insurance company that it had expressed its intention to cancel the insurance policy during the life time of the appellant’s father and after deducting the premium amount, it had refunded the balance amount to him as also the factum of pendency of the case before the High Court.  Until the rights of the parties in terms of the insurance policy are decided by the High Court, the appellant claim cannot be entertained by any court or Forum.  We do not find any reason to interfere with the finding of the District Forum that the complaint is premature in view of pendency of the case involving comprehensive issue of law before the High Court.

13.    In the result the appeal is dismissed confirming the order dated 30.5.2007 of the District forum.  There shall be no order as to costs.

                                                                    Sd/-

                                                                PRESIDENT

                                                                    Sd/-

                                                                MEMBER
                                                                             Sd/-

                                                                MEMBER

                                                            Dt.06.10.2010

KMK*