BEFORE THE DISTRICT CONSUMER FORUM (UNDER CONSUMER PROTECTION ACT, 1986) MEDAK AT SANGAREDDY

PRESENT: SRI P.V.SUBRAHMANYAM, B.A.B.L., PRESIDENT

SMT U.SUNITA, M.A., LADY MEMBER

SRI M.NARSIMHA REDDY, M.A.LL.B., P.G.D.C.P.L.,

MALE MEMBER

Friday, the 26^th day of September, 2008

CC.NO.96/2005 and CC.No.137/2005

CC.No.96/2005

BETWEEN:

Smt. Alima Begum W/o Late Buran

Aged 21 years, Occ: Household

R/o Velmakanna (v),

Kowdipally (M), Medak District.

                                                                             … Complainant

          And

The Branch Manager,

National Insurance Co.,

D.No.12/13/16/13,

Vamshi complex,

Tarnaka, Secunderabad.

                                                                             … Opposite party

CC.No.137/2005

BETWEEN:

Mohd Khajamiya  S/o Mohd Budan Sab,

Age: 40 years, Occ:Business,

R/o H.No.9-83/1, Indira Nagar,

Chandanagar, R.R.District.

                                                                             … Complainant

          And

National Insurance Company Ltd.,

12-13-60/13, Taranaka,

Secunderabad- 500 017.

                                                                             … Opposite party

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The two Complaints  came up for final hearing before us on 16.9.2008 and 17.9.2008 respectively  in the presence of  Sri G.Subashchander, Advocate for the complainant in CC.No.96/2005 and Sri P.Jaipal Reddy Advocate for complainant in CC.No.137/2005  and Sri J.Ram Reddy, Advocate for opposite party in both the cases,  upon the hearing the arguments of both sides, having  gone through the material papers on record  and  having stood over for consideration till this day,  the forum delivered the following:

COMMON O R D E R

(Per Sri P.V.Subrahmanyam, President)

1.                These two complaints are filed by the wife and father of the deceased Mohd Buran sab,  who died in a motor accident,  claiming insurance amount. As the subject matter in both the cases is one and the same, in order to avoid conflicting decisions and to save the precious time of this forum, both the cases are being disposed of by a common order.

2.                The averments in the both complaints are almost similar. In brief they are as here under:

                   Late Buran  Sab obtained a comprehensive policy for his Hero Honda Passion Plus motor cycle bearing No.AP 28 AL 3466 from the opposite party  vide policy  No.551204/31/04/6200904 valid from 26.4.2004 to 25.4.2005 by paying Rs.50/- covering the risk of personal accident to the owner cum driver for a sum of Rs.1,00,000/-. On 28.9.2004 while Late Buran was proceeding on his motor cycle along with another, to go to his mother in law’s village Velma Kanne,  at about 12 noon,  by the time the motor cycle reached BVRIT college of Narsapur, Medak District,  suddenly the front tyre of the motor cycle punctured due to which the motor cycle dashed against a stone and Late Buran fell down and sustained severe head injury. Immediately he was shifted the government hospital at Narsapur where he was provided first aid and then he was shifted to NIMS hospital, Hyderabad where Buran Sab, while under going treatment,  succumbed to the injuries on 08.10.2004 at about 4.30 p.m. Narsapur police registered a case for the incident U/S 304 -A   IPC. The complainant in CC.No.96/2005 furnished all

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documents to the opposite party and requested for the policy amount of Rs.2,00,000/- and for another sum of Rs.20,341/- towards damages to the motor cycle. She also got issued a legal notice dt.26.4.2005 claiming the above said amounts. The opposite party sent a reply on 13.7.2005 asking the complainant not to proceed further. The complainant in the other complaint in CC.No.137/2005 prayed for the policy amount of Rs.1,00,000/- with interest and for another sum of Rs.50,000/- towards compensation.

 3.                The opposite party in both the matters resisted the claims by filing counters. The contents of the two counters are almost similar. They are as here under:

                   It is true that the opposite party issued the policy in question and collected Rs.50/- towards risk of owner cum driver for a sum of Rs.1,00,000/- but not Rs.2,00,000/-. The deceased Buran,  who was driving motor cycle,  fell down and he was admitted in Narsapur hospital and from there he was shifted to NIMS hospital, Hyderabad on the date of accident itself i.e on 28.9.2004. As per discharge card and case sheet of NIMS hospital it is established that the deceased Buran was in intoxicated state at the time of admission in NIMS hospital. Even though the deceased fell down on 28.9.2004, with an intention to get the claim amount from insurance company, complaint was lodged after a lapse of 11 days. As per section 3(b) of the terms and conditions of the policy if the policy holder meets with any accident,  while such person is under the influence of intoxicated liquor or drugs,  no compensation is payable. As the deceased was in drunken state at the time of accident there is violation of the terms and conditions of the policy, so the insurance company is not liable to pay any amount and it has rightly repudiated the claim made by both the complainants. As per the investigations made by the insurance company there was no damage to motor cycle. More over as the deceased has violated the terms and conditions of the policy the complainant in CC.No0.96/2005 is not are entitled to any amount towards damages to the vehicle. A suitable reply was sent by the opposite party for the legal notice received by it.

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The complainants have not filed legal heir certificate to show who are the legal heirs. The complainants are not residents of Medak District. In fact they are residents of R.R.District hence this forum has no jurisdiction. The complaints may therefore be dismissed with costs.

4.                Evidence affidavits of complainants and opposite parties in both the complaints are filed.  The oral evidence of PWs 1 and 2 recorded in CC.No.137/2005 is treated as evidence in CC.No.96/2005 as per docket order dt.07.11.2007 in CC.No.96/2005.  Exs.A.1 to A.9 documents are marked in CC.No.96/2005 and Exs.A.1 and A.2 are marked in CC.No.137/2005 on behalf of the respective complainants.  RW.1 is examined and Exs.B.1 to B.3 documents are marked as per docket order dt.20.1.2006 (but there are no documents in the record with such marking) by recording common evidence in both the cases and Ex.B.1 and B.2 are marked in CC.No.137/2005 on behalf of the opposite party in both the cases as per docket order dt.20.2.2008 but there are no documents in the record with such marking. Written arguments of both parties filed in both the cases. Oral arguments of both sides heard. Perused  the record.

5.                The point for consideration is whether the complainant in CC.No.96/2005 is entitled for Rs.2,20,341/- and the complainant in CC.No.137/2005 is entitled for Rs.1,50,000/- as prayed for ?

Point:

6.                The undisputed facts in both the cases are that Late Mohd.Buran Sab obtained a personal accident policy from opposite party for his Hero Honda Passion plus motor cycle bearing registration No.AP 28 AL 3466 with policy No.551204/31/04/6200904 with effect from 26.4.2004 to 25.4.2005 and that the policy holder met with accident on 28.9.2004 while driving the vehicle and sustained head injury and later succumbed to the injury on 08.10.2004 while undergoing treatment.  Of course the complainant in CC.No.96/2005 stated that the said policy is for Rs.2,00,000/- where as the complainant in the other case stated that it is for Rs.1,00,000/-. As seen from Ex.A.2 in CC.No.137/2005 which is the

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policy issued by the opposite party it is for Rs.1,00,000/- only but not for Rs.2,00,000/-.  

7.                Admittedly the death of the policy holder Mohd.Buran is intestate. There is no nomination in the policy (Ex.A.2 in CC.No.137/2005) showing the person to whom the policy amount is payable in the event of death of policy holder. None of the complainants filed legal heir certificate of Late Mohd.Buran to know whether they are legal heirs and where there are any other legal heirs to succeed to the estate of the deceased Buran. Therefore any person claiming under the policy must obtain succession certificate from competent court of law to  claim the policy amount. Complainant’s counsel in CC.No.137/2005 stated that along with written arguments khaji’s nomination is filed showing that father of deceased is entitled to receive the policy amount and hence the complainant in CC.No.137/2005 is the proper person to receive the amount. There is no law to rely upon such nomination to order payment of the insurance amount.  Hence the said request can not be accepted. He has further contended that the complainant in CC.No.96/2005 deserted the family immediately after the death of her husband Mohd.Buran and re married therefore she is not entitled to the insurance amount.The said allegation is denied by the other side. Even if it is true,  re marriage after the death of her husband  does not disentitle her to receive the insurance amount, if she is other wise entitled.    

8.                Another contention of the opposite party is in order to claim the insurance amount, report was given to police with a delay of 11 days. We are of the opinion that such delay does not absolve the insurance company from the liability because the death of the policy holder Modh.Buran in motor accident is not in dispute.

9.                The next contention of the opposite party is that the complainants in both the cases are not residents of Medak District and they are residents of R.R.District  and hence  this forum has no territorial jurisdiction. As the accident

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occurred in Narsapur which is in the limits of  Medak District, it is held that this forum has territorial jurisdiction to entertain the complaints.

10.               Then the Learned counsel for the opposite party in both the cases referred to the discharge card and the case sheet copy of the NIMS hospital wherein  it is written as “Alleged H/O fall from a motor cycle in intoxicated state at 5.p.m., on 28.09.04 near Narsapur”. (First page of the patient record of the said hospital is marked as Ex.A.3. Even though the learned counsel for opposite party filed Xerox copy of the entire case sheet the same is marked as an exhibit.  In the second page of the said case sheet the above quoted version of some body is written). Basing upon the said writing in the case sheet the learned counsel has contended that because the policy holder was under the influence of intoxication at the time of accident while driving the vehicle, it is clear violation of the terms and conditions of the policy, therefore the opposite party is not liable to pay any amount under the policy. We are not in agreement with this contention because the history of the accident must have been given by some body at the time of admitting the patient in the hospital. Moreover there is no evidence to show that the deceased was under the influence of intoxication, due to which the accident occurred. Even presuming for a movement that the deceased was in intoxicating state at the time of accident, that does not automatically leads to an inference that he was under the  influence of intoxication and he could not judge pros and cons while  driving the vehicle and therefore the accident occurred. On the other hand as seen from the post mortum examination report Ex.A.4,  the death was due to head injury. Ex.A.4 further shows that 50 CC of Yellow colour liquid was seen in the stomach of the deceased. There is no observation of the doctor that it was smelling liquor. Therefore in view of the discussion supra the contention of the learned counsel for the opposite party in this regard does not sustained. For just decision in these two cases, reference to other exhibits is not necessary. It is held that the opposite party insurance company is bound to pay the insurance amount to the person/persons entitled under the policy, who produces  any authority from any competent court of law to receive the same. The opposite party insurance company may resort to the procedure prescribed under Section 88 of the code of civil procedure by filing an inter pleader suit, if it is so advised. As the complainants in both these cases

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have not placed any proof before this forum about their right to receive the policy amount without prejudice their rights, it is held that the complainants in both the

cases are not entitled for any  relief in these cases. The point is answered accordingly.

11.               In the result, both the complaints CC.No.96/2005 and CC.No.137/2005 are dismissed. No costs.

          Typed to dictation, corrected and pronounced by us in the open forum this the 26^th day of September, 2008.

          Sd/-                                Sd/-                                          Sd/-

 PRESIDENT                   LADY MEMBER                    MALE MEMBER.

Appendix of evidence

  CC.No.96/2005

WITNESS EXAMINED

For the Complainant :-                                                     For the Opposite party :-

                                                                             RW.1/dt.20.2.2008 –

                                                                             Loknadh Reddy S/o

                                                                             K.Reddeppa Reddy (examined

                                                                             in CC.96/2005 & CC.137/2005

                                                                             by recording (common

                                                                             evidence).

DOCUMENTS MARKED

For the Complainant :-                                                     For the opposite party :-

Ex.A1/dt.09.10.2004 –  copy of  FIR.                    Ex.B1 to B.3 are marked

                                                                             as per docket order

                                                                             dt.20.1.2006 but there are no

                                                                             documents in the record with

                                                                             Such markings.              

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Ex.A2/dt.09.10.2004 – copy inquest report of

                                   Mohd.Buran Sab.

Ex.A3/dt.28.09.2004 – Copy of Medico Legal

       patient record.

Ex.A4/dt.09.10.2004 – copy of  requisition for post

                                Mortem examination.

Ex.A5/dt.--            - copy of driving license of

                              Md.Buran.

Ex.A6/dt.26.4.2005 – office copy of legal

 notice from complainant to OP .

Ex.A7/dt..             - Postal registration

                             receipt.

Ex.A8/dt.25.6.2005-reply notice

Ex.A9(1) & (2)

/dt.27.11.2004 –     Memo No.6502 of

                             delight Automobiles

two slips.

CC.No.137/2005

WITNESS EXAMINED

For the Complainant :-                                                     For the Opposite party :-

PW1/dt.07.11.2007 – Alima Begum                        RW.1/dt.20.2.2008 -

                             W/o Buran.                               Loknadh Reddy S/o

                                                                             K.Reddeppa Reddy (Examined

                                                                             in CC.96/2005 & 137/2005

                                                                             recording (common evidence)

PW2/dt.07.11.2007 – Mohd.Khaja S/o

                             Mohd.Buden Sab.

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DOCUMENTS MARKED

For the Complainant :-                                           For the Opposite Parties :-

Ex.A1/dt.09.10.2004 – certified copy of FIR          Ex.B1 and B.2 are marked as

                                                                             per docket order dt.20.2.2008

                                                                             but there are no documents in

                                                                             the record with such markings.

Ex.A2/dt.--                  Insurance policy.

                                                                                                  Sd/-

                                                                                          PRESIDENT.

Copy to:

The Complainant

The Opposite party

Spare copy                    Copy delivered to the Complainant/

                                                                             Opp.parties On ________

                                      Dis.No.            /2008, dt.