Tamil Nadu

South Chennai

CC/438/2015

G.Palani - Complainant(s)

Versus

M/s.Bharati Ax General Insurance Co Ltd - Opp.Party(s)

M/s.E.Manikandan

16 Jul 2019

ORDER

                                                                        Date of Filing  : 30.10.2015

                                                                          Date of Order : 16.07.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.438/2015

DATED THIS TUESDAY THE 16^TH DAY OF JULY 2019

                                 

G. Palani,

S/o. Mr. Kothandapani,

No.1/296, Gangai Amman Koil Street,

Koliyanoor,

Koliyanoor Post,

Villupuram District – 605 103.                                       .. Complainant.                                                        ..Versus..

 

1. Bharti – Axa General Insurance Co. Ltd.,

Rep. by its General Manager,

Having Office at:

First Floor, Fems Icon

Survey No.28, Doddankundi Village,

K.R. Puram,

Hubli,

Bangalore – 560 037.

 

2. Bharti – Axa General Insurance Co. Ltd.,

Rep. by its Manager,

Claims Department,

No.162, Metro Plaza Second Floor,

Opp. to Spencer Plaza, Anna Salai,

Mount Road,

Chennai – 600 002.

 

3. Bharti – Axa General Insurance Co. Ltd.,

Rep. by its Manager,

Divya Trade Centre 1^st Floor,

No.11, Brindhavan Street,

Near Thulasi Retail Shop,

Fairlands,

Salem – 636 016.

 

4. Fastcare Multi Services India Pvt. Ltd.,

Represented by its Director,

Fast Care Dhanavika Complex,

No.155, Nehru Street,

Erode – 638 001.                                                 ..  Opposite parties.

 

Counsel for the complainant                  : M/s. E. Manikandan &

                                                                  another

Counsel for the opposite parties 1 to 3 : M/s. M.B Gopalan & others

4^th Opposite party                                      : Exparte

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 to 4 under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.5,00,000/- to  the complainant as per the terms and conditions of the Group Personal Accident Policy vide Policy No.C0218529 10825913, F Card ID No.216185 in the name of the complainant’s son P. Aravindhraj and to pay a sum of Rs.1,00,000/- towards compensation for mental agony, personal discomfort and inconvenience caused to him by the opposite parties 1 to 3 in disbursing the Policy amount.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that his son Aravindharaj was admitted for pursuing his Engineering Degree in Kongu Engineering College, Perunduari, Erode.   The complainant submits that while his son was perusing his Engineering Degree Course in the 1^st year, the complainant approached the 4^th opposite party who is the service provider of the opposite parties 1 to 3 for insuring his son against any untoward incident like accident.  Accordingly, the complainant paid the requisite policy amount and obtained a Group Insurance Policy No.C0218529 10825913. F Card ID No.216185 which was in force from 15.03.2012 to 12.03.2013.  The sum insured under the policy was for Rs.5,00,000/-.  The complainant submits that his son Aravindhraj was staying in the hostel within the premises of the college.  While so, on 10.04.2012, the college declared holiday for an annual festival of Bannari Amman Temple at Erode.  Aravindhraj after taking his breakfast in the college canteen went along with his friends Arun, Aswin, Bhoopal, Ethiraj, Praveen Kumar and Bhakiyaraj to take bath in the lake situated in Aravilakku, Mettupalayam at about 2 p.m. in the evening.   Unfortunately, Aravindhraj was drown in the lake and could not be traced out.  Immediately, Mr. Arun informed the Police Inspector with regard to the drowning of the son of the complainant, Aravindhraj.    The police registered a case in crime No.306/2012 under the caption “Boy missing” under Section 174 of Cr.P.C as per the Final Order dated:28.06.2012 and started investigation and fish out the body of the Aravindhraj on 11.04.2012 and was identified by the complainant.  The body was sent for post-mortem and also chemical analysis and it was concluded that the cause of death was Asphyxia due to drowning.   After receipt of the chemical analysis report, the case was altered into one of death due to “Asphyxia as a result of drowning” and accordingly, a final report was filed before the learned Judicial Magistrate, Perundurai.   Hence, the police dropped the further investigation. 

2.     The complainant submits that after obtaining the Death Certificate and Legal Heir Certificate, the complainant made a claim petition dated:13.03.2014 with the 4^th opposite party is claiming the insured amount of Rs.5,00,000/-.  The 4^th opposite party after receipt of the claim petition asserted by him and the 3^rd opposite party has given an acknowledgement on 21.05.2012 but miserably failed to disburse the insured amount.   The complainant submits that on 13.03.2014, the complainant issued a letter to the 2^nd opposite party claiming the insured amount.  The opposite parties 1 & 2 sent replies dated:21.03.2014 stated that the claim is treated as closed for non-production of documents amounts to unfair trade practice.  The 4^th opposite party sent a letter dated:19.03.2014 stated that all the documents were forwarded to the opposite parties 1 to 3 and they are not responding.   Therefore, the 4^th opposite party informed the complainant to pursue their grievance through the Insurance Ombudsman for claiming the insurance amount.  The complainant submits that the 2^nd opposite party is estopped from rejecting the claim on technical grounds after knowing fully well, about the accident and the claim.  The complainant submits that without any intimation the opposite parties 1 to 3 cancelled the insurance policy and the premium amount of Rs.34,06,452/- has been given to the 4^th opposite party.   The act of the opposite parties 1 to 4 amount to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

3.      The brief averments in the written version filed by opposite parties 1 to 3 is as follows:

 The opposite parties 1 to 3 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.     The opposite parties 1 to 3 state that the complainant did not avail any insurance directly from opposite parties 1 to 3.   The opposite parties 1 to 3 state that the complainant paid no premium to this opposite parties.  The 4^th opposite party has availed various Group Personal Accident Master Policies including Policy No.IO825913 for the period from 13.03.2012 to 12.03.2013 after due payment of premium.  Hence, the 4^th opposite party is the “Insured” under the Policy and various individuals were included as “Insured Persons” subject to Master Policy.  The opposite parties 1 to 3 state that the complainant cannot claim any independent right except the Master Policy subject to its validity and being in force on the date of accident.  Because on 20.03.2012, various Master Policy including policy No.I0825913 issued to the 4^th opposite party has been cancelled. The premium amount of Rs.34,06,452/- also received by the 4^th opposite party.  The opposite parties 1 to 3 state that the alleged letter dated:19.03.2014 of the 4^th opposite party after nearly 2 years is vague and appears intended to wash its hands off, when the 4^th opposite party knows that its policy has been cancelled and it has also received the refund of premium.  The opposite parties 1 to 3 state that under any circumstances if any award will be passed, it shall be paid by the 4^th opposite party since the premium has been refunded to the 4^th opposite party.   Therefore, there is no deficiency in service on the part of the opposite parties 1 to 3 and hence, the complaint is liable to be dismissed.

4.     In spite of receipt of notice, the 4^th opposite party has not appeared before this Forum and hence, the 4^th opposite party was set exparte.

5.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A16 are marked.  Proof affidavit of the opposite parties 1 to 3 is filed and documents Ex.B1 to Ex.B3 is marked on the side of the opposite parties 1 to 3.

6.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.5,00,000/- as per the Group Personal Accident Policy vide policy No.C0218529 10825913 F Card ID No.216185 as prayed for?
2. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards compensation for mental agony, inconvenience, deficiency in service etc with cost as prayed for?

7.      On point:-

The 4^th opposite party after the receipt of notice has not appeared in this Forum and remained ex-parte.  The written arguments of the complainant and opposite parties 1 to 3 filed.  Heard their Counsels also. Perused the records namely; the complaint, written version, proof affidavits and documents.  The complainant pleaded and contended that his son Aravindharaj was admitted for pursuing his Engineering Degree in Kongu Engineering College, Perunduari, Erode. Ex.A4 is the copy of admission 2011 Provisional Allotment Order.   Further the complainant contended that while his son was persuing his Engineering Degree Course in the 1^st year, the complainant approached the 4^th opposite party who is the service provider of the opposite parties 1 to 3 for insuring his son against any untoward incident like accident.  Accordingly, the complainant paid the requisite policy amount and obtained a Group Insurance Policy No.C0218529 10825913. F Card ID No.216185 which was in force from 15.03.2012 to 12.03.2013.  The sum assured under the policy was for Rs.5,00,000/- as per Ex.A7.  

8.     Further the contention of the complainant is that his son Aravindhraj was staying in the hostel within the premises of the college.  While so, on 10.04.2012, the college declared holiday for an annual festival of Bannari Amman Temple at Erode.  Aravindhraj after taking his breakfast in the college canteen went along with his friends Arun, Aswin, Bhoopal, Ethiraj, Praveen Kumar and Bhakiyaraj to take bath in the lake situated in Aravilakku, Mettupalayam at about 2 p.m. in the evening.   Unfortunately, Aravindhraj was drown in the lake and could not be traced out.  Immediately, Mr. Arun informed the Police Inspector with regard to the drowning of the son of the complainant, Aravindhraj.    The police registered a case in crime No.306/2012 under the caption “Boy missing” under Section 174 of Cr.P.C as per Ex.A11, Final Order dated:28.06.2012 and started investigation and fish out the body of the Aravindhraj on 11.04.2012 and was identified by the complainant.  Due post-mortem and chemical analysis conducted as per Ex.A8. The chemical analysis Report is very clear that the cause of death was ‘Asphyxia’ due to drowning.  Ex.A9 is the copy of Death Certificate.  Hence, the police dropped the investigation.  Further the contention of the complainant is that after obtaining the Death Certificate and Legal Heir Certificate, Ex.A9 & Ex.A10, the complainant made a claim petition dated:13.03.2014 with the 4^th opposite party claiming the insured amount of Rs.5,00,000/- as per Ex.A12.  The 4^th opposite party after receipt of the claim petition asserted by him and the 3^rd opposite party has given an acknowledgement on 21.05.2012 but miserably failed to disburse the insured amount.   

9.     Further the contention of the complainant is that on 13.03.2014, the complainant issued a letter to the 2^nd opposite party claiming the insured amount.  The opposite parties 1 & 2 sent a replies dated:21.03.2014 as per Ex.A14 & Ex.A15 stating that the claim is treated as closed for non-production of documents amounts to unfair trade practice. The 4^th opposite party sent a letter dated:19.03.2014 as per Ex.A13 stating that all the documents were forwarded to the opposite parties 1 to 3 and they are not responding and instructed to approach the Insurance Ombudsman.  Further the contention of the complainant is that the 2^nd opposite party is estopped from rejecting the claim on technical grounds after knowing fully well, about the accident and the claim.   Further the contention of the complainant is that without any intimation the opposite parties 1 to 3 cancelled the insurance policy and the premium amount of Rs.34,06,452/- has been refunded to the 4^th opposite party as per Ex.B2 & Ex.B3.  But the opposite parties 1 to 4 has not given any intimation to the complainant with regard to the closure of the policy.   Further the contention of the complainant is that as per the IRDA rules and the homogenous group of persons mentioned in Ex.B2 has no relevancy because Aravindhraj has availed the accident policy under the Group Insurance  Policy which includes death claim; also proves the unfair trade practice and deficiency in service.  Further the contention of the complainant is that the complaint is filed within the reasonable time.  There is no delay in filing the complaint as per decision reported in:

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

REVISION PETITION NO.1207 OF 2008

Between

CEO, Cholamandalam MS General Insurance Company Ltd. & anr.

-Versus-

Mr. Abhijat Saini & anr.

Held that

        “In our view the provisions of delay in informing the Insurance Company or lodging the report with the police are of little significance as these are of directory nature and not of the mandatory nature.  What is relevant is whether any such accident or occurrence has taken place or not and whether the insured has played fraud or given wrong information to take undue benefit against the insurance policy.  Once the report is lodged with the police may be in any form, the Insurance Company is barred from appointing any Investigator to investigate into the fact whether the theft or accident has taken place or not.  Under the Code of Criminal Procedure only the police has the authority to investigate into the offence registered under the IPC and nobody else.  If the Insurance Companies are allowed to appoint Investigator for going into the truthfulness of the occurrence then there will be two parallel investigations, one by the statutory authority and another by an authority which is incompetent to investigate into a criminal offence.  We have also held that Insurance Companies have  no option than to accept the report of the police with regard to accident or theft of a vehicle or loss of vehicle by way of any other incident or event”.

10.    The learned Counsel for the opposite parties 1 to 3 would contend that the complainant did not avail any insurance policy directly from opposite parties 1 to 3. But on a careful perusal of Ex.B1, it is clear that the policy issued by opposite parties 1 to 3.  Further the contention of the opposite parties 1 to 3 is that the complainant paid no premium to this opposite parties.  The 4^th opposite party has availed various Group Personal Accident Master Policies including Policy No.IO825913 for the period from 13.03.2012 to 12.03.2013 after due payment of premium.  Hence, the 4^th opposite party is the “Insured” under the Policy and various individuals were included as “Insured Persons” subject to Master Policy.  On a careful perusal of records, it is very clear that the 4^th opposite party shall not be a beneficiary under the policy.  On the other hand, as per Ex.A7, the policy issued in the name of Aravinthraj under Group Personal Accident Policy proves that the subsistence of policy in the name of deceased Aravindraj.    Further the contention of the opposite parties 1 to 3 is that the complainant cannot claim any independent right except the Master Policy subject to its validity and being in force on the date of accident.  Because on 20.03.2012, various Master Policy including policy No.I0825913 issued to the 4^th opposite party has been cancelled.   The premium amount of Rs.34,06,452/- also received by the 4^th opposite party.  But the said cancellation of policy without intimation to the policy holders and insured the 4^th opposite party is unsustainable because, the IRDA Rules shall not prohibit the accident policy. The allegation of homogenous policy of any nature has not been proved in this case. The opposite parties 1 to 3 has not produced any document to that effect also. Further the contention of the opposite parties 1 to 3 is that the alleged letter dated:19.03.2014 of the 4^th opposite party as per Ex.A13 and the alleged claim of the complainant with documents are not proved.  But it is not denied that the complainant has not filed the claim form with necessary documents.  

11.    Further the contention of the opposite parties 1 to 3 is that admittedly, the accident happened on 10.04.2012 and the case is filed only on 30.10.2015 after the lapse of 2 years proves that no notice of intimation was given to the opposite parties 1 to 3 immediately after the accident.  But it is not denied that due F.I.R. as per Ex.A16 has been registered immediately. The law is also well settled that after registering FIR at the earliest point of time, the notice of intimation or investigation in a different manner is unsustainable.  Further the contention of the opposite parties 1 to 3 is that under any circumstances if any award will be passed, it shall be paid by the 4^th opposite party only since the premium has been refunded to the 4^th opposite party.  Considering the facts and circumstances of the case this Forum is of the considered view that the 4^th opposite party is directed to pay the insured amount of Rs.5,00,000/- to the complainant and a sum of Rs.40,000/- towards compensation for mental agony with cost of Rs.10,000/-.  The claim as against the opposite parties 1 to 3 is dismissed.

In the result, this complaint is allowed in part.   The 4^th opposite party is directed to pay a sum of Rs.5,00,000/- (Rupees Five lakhs only) being the insured amount and to pay a sum of Rs.40,000/-(Rupees Forty thousand only) towards compensation for mental agony with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant.   The claim as against the opposite parties 1 to 3 is dismissed.

The above  amounts shall be payable  within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 16^th day of July 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	02.09.2009	Copy of Community Certificate
Ex.A2	.03.2011	Copy of +2 Mark Statement
Ex.A3	19.05.2011	Copy of first Graduate Certificate
Ex.A4	11.07.2011	Copy of Tamil Nadu Engineering Admission 2011 Provisional Allotment Order
Ex.A5	11.07.2011	Copy of Certificate of Physical fitness
Ex.A6	21.07.2011	Copy of Engineering admissions 2011 challan for payment of balance fee
Ex.A7	13.03.2012	Copy of Group Personal Accident Policy issued in the name of son of complainant
Ex.A8	12.04.2012	Copy of Postmortem report of Aravindhraj
Ex.A9	19.04.2012	Copy of Death Certificate
Ex.A10	02.05.2012	Copy of Legal Heir Certificate
Ex.A11	28.06.2012	Copy of final order in Cr. No.306/2012 submitted by the Inspector of Police, Perundurai Police Station
Ex.A12	13.03.2014	Copy of letter sent by the complainant with postal receipt
Ex.A13	19.03.2014	Copy of the letter sent by the 4th opposite party
Ex.A14	21.03.2014	Copy of the letter sent by the 1st opposite party
Ex.A15	21.03.2014	Copy of the letter sent by the 2nd opposite party
Ex.A16	10.04.2012	Copy of First Information Report

 

OPPOSITE PARTIES 1 TO 3 SIDE DOCUMENTS:-  

Ex.B1		Copy of insurance policy with terms and conditions
Ex.B2	20.03.2012	Copy of cancellation letter
Ex.B3		Copy of NEFT advise

 

 

                              

MEMBER                                                                                PRESIDENT