Andhra Pradesh

Visakhapatnam-II

CC/102/2012

Yedla Vijaya Kumari - Complainant(s)

Versus

National Insurance Company Limited - Opp.Party(s)

C.H.R. Vasantha Kumar

09 Jul 2015

ORDER

                  Reg. of the Complaint:03-04-2012                                                                                                                                     Date of Order:09-07-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II

AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDA RAO, M.A., L.L.B.,

       President

2.Sri C.V.RAO, M.A., B.L.,

                                             Male Member

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

                                            

 

THURSDAY, THE 09^TH DAY OF JULY, 2015

CONSUMER CASE NO.102/2012

 

BETWEEN:

Yedla Vijaya Kumari W/o late Simhachalam,

Hindu, aged 40 years, r/at S.C.Colony,

Pathapatnam Village, Pathapatnam Mandalam,

Srikakulam District.

…Complainant

AND:

1. National Insurance Company Limitd (Subsidiary of General

Insurance Corporation of India ) rep. by its Senior Divisional Manager,

Registered Head Office-3, Middleton Street, Kolkata-700 071.

2. Golden Multi Services Club G.T.F.S. Visakhapatnam,

Rep. by its Manager, Dwarakanagar, Visakhapatnam town & District.

…Opposite Parties

 

This case coming on 24-06-2015 for final hearing before us in the presence of   SRI C.R.VASANTHA KUMAR, Advocate for the Complainant, and of                                     SRI SYED MOINUDDIN, Advocate for the 1^ST Opposite Party, and of SRI P.PARTHADASARDHY AND SRI P.MURALI GOPAL, Advocate for the 2^nd Opposite Party is being exparte, and having stood over till this date for consideration, this Forum made the following.

 

ORDER

 (As per the Honourable President on behalf of the Bench)                                                                              

 

1. The Complainant filed the present complaint against the Opposite Parties directing them to pay an amount of Rs.3,00,000/- covered under the Janatha Personal Accident Insurance, together with interest @ 24% p.a, from the date of death of the deceased i.e, from 16-08-2009 till its realization, Rs.30,000/- towards compensation, Rs.5,000/- towards costs and costs of Rs.5,000/- towards Advocate Fee.
2. The case of the complainant in brief is that her husband obtained policy from OPs bearing policy No.100300/47/01/9600022/03/96/30332 for Rs.3,00,000/- from 23-12-2003 to 22-12-2008 and she is the nominee of the policy being wife and her husband used to work as welder and on 16-08-2009, he accidentally fallen on the ground and sustained severe injuries and latter shifted to Community Health Centre, Pathapatnam  and while undergoing treatment, died on 16-08-2009  and immediately  she     ifnromed the said accident to police, who registered the case and medical officer conducted P.M.Examination and she being nomine submitted claim form alogn wtith relevant documents to OP and on 26-7-2010, the OP1 intimated about the repudiation of the claim. Hence, this complaint.
3. The OP1 filed no counter. The case of OP1 appears to be is that the deceased life assured was suffering from frequent fits and he was not hale and healthy by any means, the death does not fall under the definition of the term of accident as per the policy as there were no external violent means. Therefore, the complaint cannot be called as a consumer.
4. The case of the OP2, denying the material averments of the complaint by admitting the deceased life assured obtained Janatha Personal Accident Insurance Policy from OP1 and the 2^nd OP issued the policy for a sum of Rs.3,00,000/- they have no role to play in this regard or in an authority being vested to them so far, the claim settlement is concerned and they are not authorized agent for settlement of claim.  It is also their case that the complaint is not a consumer. The 1^st Op issued the claim closer letter citing the reasons that some documents which were asked had not been submitted by the claimant, if after gap of 3 months. For these reason, the complainant filed by the complainant is not maintainable.
5. To prove the case on behalf of the complainant, he field his affidavit and got marked Exhibit A1 to A9. On the other hand, on behalf of t he OPs, they filed their affidavits  and no documents were marked.
6. Exhibit A1 is the Original Insurance Policy dated 23-12-2003, Exhibit A2 is the Photocopy of Sakshi News Paper, dated 17-08-2009, Exhibit A3 is the FIR, dated 16-08-2009, Exhibit A4 is the P.M. Certificate, Exhibit A5 is the Final report, dated 01-09-2009, Exhibit A6 is the Claim form, Exhibit A7 is the Regd. Letter by OP, dated 26-07-2010, Exhibit A8 is the Death Certificate, dated 26-07-2010 and Exhibit A9 is the premium receipt, dated 29-11-2003.
7. Opposite Parties filed their written arguments.
8. Treated as heard from both sides.
9. Now the point for determination to be determined in this case is;

Whether there is any deficiency of service on the part of the OPs and the Complainant is entitled to any reliefs asked for?

10.    Before going to the merits of the case, we would like to state in the instant case, the main relief claimed by the complainant rests upon 1^st OP but unfortunately they did not file their counter, however, they filed their evidence as well as memo of written arguments. I do not understand how OP1 filed evidence affidavit without filing their main pleadings in C.C. It is settled law in the absence of pleadings, any amount of evidence is let in, is of no value.

11.     Now coming to the facts of the case on hand, the main contention of 1^st OP appears to be is that the death of the deceased is not an accidental death and he died due to suffering with fits. To prove the same, except the evidence affidavit of the Assistant Manager of OP1 without any pleading and who have no knowledge about the health condition of the deceased is filed but to support the same, they have not filed either oral or documentary evidence. On the other hand, the evidence of the complainant clearly goes to show immediate to the death of the deceased, the complainant  gave report to police who registered the case vide Exhibit A3 and Exhibit A4 P.M. Certificate reveals on intimation by police, the medical officer conducted P.M. Examination over the dead body of the deceased and issued Exhibit A4 certificate and Exhibit A5 is the final report submitted by the police. The documentary evidence let in by the complainant and his affidavit averments clearly goes to show the death of the deceased is an accidental death and thereby proved their case.

12.     The next contention of the 1^st OP is that the complainant approached for the insurance benefits through OP2 on 07-11-2009 and they immediately sent letter dated 18-02-2010 seeking certain documents but the complainant did not respond and after waiting for a few months, they closed the case as no claim and the same was informed to her. Admittedly no proof is filed. Ever since that they addressed a letter to the complainant calling for certain documents and without there is no response, they closed the case as not claimed and informed the same to the complainant. If really, OP1 informed her that they would have custody of all those documents but they were not filed. Therefore, adverse inference can be drawn in favour of the complainant. On the other hand, the evidence let in by the complainant coupled with Exhibit A6 claim form clearly goes to show that in spite of approach by the complainant, the OP did not respond  which prompted the complainant in filing the present complaint.

13.     On a careful scrutiny of record much less the documents, we are of the considered view,  the acts of the OPs, squarely comes under the deficiency of service on their part. Therefore, the complainant is entitled to the reliefs.
14.     Now the question that comes up for consideration, at this stage of our discussion is, what is the rate of interest for which the Complainant is entitled.   The rate of interest claimed by the Complainant is 24% p.a.  This rate of interest claimed by the Complainant appears to be excessive, of course, it is a fact that the transaction covered by Ex.A1 is commercial in nature, but that does not and cannot mean to say that the Complainant is licensed to claim interest @ 24% p.a. from the date of the death of the deceased husband of the complainant.  But at the same time, it is imperative on our part to award a reasonable interest.   Having regard to all these facts and circumstances, we sincerely feel having considered the case on hand awarding of interest @ 9% p.a. would better serve the ends of justice.    Consequently, we proposed to fix the rate of interest @ 9% p.a. on Ex.A7 dated 26-07-2010 i.e., Repudiation letter in question.   Accordingly interest is ordered.

14.     Whether the Complainant is entitled for compensation of Rs.30,000/- is to be considered.   It appears as seen from the evidence of Complainant that the Complainant was compelled to approach the Opposite Parties and therefore experienced a lot of physical strain besides mental agony and financial loss. It is an un-disputed fact that the Opposite Parties did not pay the sum assured to the complainant.   Naturally, that might have put the Complainant to suffer some mental agony besides physical stress and strain.   In this view of the matter, we sincerely feel that it is a fit case to award compensation.   But that does not and cannot mean to say that the Complainant claim for compensation is acceptable.    Having regard to all these facts and circumstances, we are of the considered opinion, award of compensation of 30,000/- would serve the ends of justice.   We therefore, proposed to award compensation of Rs.30,000 /-,  in the circumstances of the case on hand. Accordingly this point is answered.

15.     Before parting our discussion, it is incumbent and imperative on our   part to consider the costs of litigation.    The Complainants ought         not have to approach this Forum had his claim for payment of Rs.3,00,000/- or reliefs sought for have been honored by the Opposite      Parties within a reasonable time and in view of the matter, the   Complainant’s claim for costs deserves to be allowed.   In our considered and unanimous opinion awarding a sum of Rs.2,500/- as costs would appropriate and reasonable.   Accordingly costs are         awarded.

16.     In the light of our discussion, referred supra, the complainant is entitled to receive the sum of Rs.3,00,000/-  with interest for the said sum @ 9% only from 26-07-2010, compensation of Rs.30,000/- and costs of Rs.2,500/-.

17.     In the result, this complaint is allowed in the part directing the opposite parties to pay an amount of Rs.3,00,000/- (Rupees Three Lakhs only) with subsequent interest @ 9% p.a., from 26-07-2010, ill the date of realization, Rs.30,000/- (Rupees Thirty Thousand only) towards compensation and Rs.2,500/- (Rupees Two thousand and five hundred only) towards costs to the complainant. Time for compliance, one month from the date of this order.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 09^th day of July, 2015.       

 

Sd/-                                               Sd/-                                        Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT  

    

APPENDIX OF EVIDENCE

  For the Complainant:-

Exhibits	Date	Description	Remarks
A1	23-12-2003	Insurance Policy	Original
A2	17-08-2009	Sakshi News Paper	Photocopy
A3	16-08-2009	Fir	Photocopy
A4		P.M.Certificate	Photocopy
A5	01-09-2009	Final Report	Photocopy
A6		Claim form	Photocopy
A7	26-07-2010	Final Repudiation Letter	Photocopy
A8		Death Certificate	Original
A9	29-11-2003	Premium Receipt	Photocopy

For the Opposite Parties:-           -nil-

 

 

Sd/-                                               Sd/-                                        Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT