For the complainants          :     M/s. N. Baaskaran & other

For the opposite party        :     M/s. M.B.Gopalan & other      

               Complaint under section 12  of the Consumer Protection Act, 1986 for a direction to the opposite party to pay a sum of Rs.10,00,000/- and also to pay a sum of Rs.7,00,000/- towards deficiency and service and  compensation to the complainant.  

.. Opposite party.

ORDER

THIRU.   T.PAUL RAJASEKARAN ::    MEMBER-II

1.The case of the complainant is briefly as follows:-

          The 1^st complainant’s husband Mr.A.Premkumar had taken personal accident insurance policy for a sum of Rs.10,00,000 from 11.8.2006 to 10.8.2007 from the opposite party.  Incidentally the 1^st complainant husband Mr.A.Premkumar met with an accident on 8.6.2007.  While proceeding by its TVS Victor TN 24Y 1149 along with his friend Govindasamy  near Hosur- Bangalore Road,  a  K.S.R.TC Bus KA07F 1163 hit against the 1^st complainant’s husband, both rider and the pillion rider had sustained severe head injury and the 1^st complainant’s husband died on the spot and pillion rider of the motor cycle were sent to Hosur Government  Hospital for treatment. It was recorded in FIR filed by the complainant’s brother.  The postmortem conducted by the  Dr. J.Lavanya of Govt. Hospital, Hosur confirmed in her Postmortem report,  the 1^st complainant’s husband died due to shock haemerahge and due to injury on skull and brain.    When the husband of the complainant died on 8.6.2007,  the 1^st complainant filed her claim form with the opposite party on 17.1.2008, and the opposite party rejected the claim of the complainant.     As such the act of the opposite party amounts to deficiency in service and which caused mental agony and hardship to the complainant.    As such the complainant sought for return of a sum of Rs.10,00,000/- and also to pay a sum of Rs.7,00,000/- towards deficiency and service and  compensation to the complainant.     Hence the above complaint. 

2.     Written version of  opposite party   is  as follows:-

          The opposite party specifically denies each and every allegation made in the compliant and puts the complainant to strict proof of the same.   The claim was made in respect of death of 1^st complainant’s husband in accident on 8.6.2007.  After thorough investigation, the opposite party declined the claim on 17.1.2008 after it was found that just prior to the accident, the deceased who was accompanied by his friend, had consumed alcohol and the policy specifically excludes occurrence in such circumstances.   On intimation of the claim, the opposite party had appointed investigation to verify details relating to the same.  The investigator, in the course of enquiry found that the deceased was riding a two wheeler accompanied by his friend C.Govindasamy of K. V. Kuppam as pillion rider, who had disclosed and confirmed in writing that both of them had consumed alcohol prior to the travel when the accident  occurred.   The opposite party submit that while the accident had taken place on 8.6.2007 at 7.10 p.m.  whereas the Postmortem had been conducted on 9.6.2007 at 9.40 a.m.  more than 14 hours later, by which time there was no possibility of detection of the alcohol.   In view of the delay in post mortem, the statement of the pillion rider who accompanied the deceased and who had stated that they had consumed alcohol is more relevant and reliable.  In the face of such statement, the opposite party reasonably concluded that the claim was not payable in view of the specific exclusion as above.  The opposite party has not committed any deficiency of service and therefore this complaint is liable to be dismissed.

3.     Complainants have filed their Proof affidavit and  Ex.A1 to Ex.A14 were marked on the side of the complainants.   Opposite party has filed his proof affidavit and Ex.B1 to Ex.B7 were marked on the side of the opposite party.

4.      The points that arise for consideration are as follows:-

1. Whether there is any deficiency in service on the part of the

         opposite party ?

2. To what relief the complainant is entitled to?

5. POINTS 1 & 2

               Perused the complaint  filed by the complainant, written version filed by the opposite party, proof affidavit filed by the both the parties and  Ex.A1 to Ex.A14  filed on the side of the complainant and Ex.B1 to Ex.B7 filed on the side of the opposite party and considered both side arguments.

6.        The 1^st complainant’s husband Mr.A.Premkumar had in possession of a personal accident insurance policy for a sum of Rs.10,00,000 from 11.8.2006 to 10.8.2007 from the opposite party.  Incidentally the 1^st complainant husband Mr.A.Premkumar met with an accident on 8.6.2007. While proceeding by its TVS Victor TN 24Y 1149 along with his friend Govindasamy  near Hosur- Bangalore Road  a  K.S.R.TC Bus KA07F 1163 hit against the 1^st complainant’s husband, both rider and the pillion rider had sustained severe head injury and the 1^st complainant’s husband died on the spot and pillion rider of the motor cycle were sent to Hosur Government  Hospital for treatment. It was recorded in FIR filed by the complainant’s brother under Ex.A3.  The postmortem conducted by the  Dr. J.Lavanya of Govt. Hospital, Hosur confirmed in her Postmortem report Ex.A4 the 1^st complainant’s husband died due to shock haemerahge and due to injury on skull and brain. 

7. The opposite party had repudiated the claim based on the investigation report of M/s Globe Associates stating that deceased person had died due to intoxication (as per Ex.B3).  On going through records, neither the postmortem report nor the FIR nor the inquest report reveals about the intoxication.  The investigator he himself enquired the doctor who had conducted the postmortem and confirmed in his report in col. No.7 of his report  that  

     “ She verified the P.M Report and informed that the contents of the stomach were empty and that no symptom of alcohol was found.  “

8.    Moreover the investigator stated in his report that the deceased had consumed Alcohol on the basis of Ex.B4 and Ex.B5 the statement given by the witness examined by him.  There is no signature of the persons who have given the statements Ex.B4 & Ex.B5 and the proof affidavit of the said investigator was also not filed on the side of the opposite party.  Hence we could not rely on the statements collected and submitted by the investigator to the opposite party, whereby the 1^st complainant’s husband died on spot not due to his negligence but because of the rash and negligent driving of the KSRPC Bus driver who hit against the two wheeler where the 1^st complainant’s husband thrown out of the vehicle, causing injury and death.  The opposite party just decided by taking the investigator report as a final decision of denying the valid claim preferred by the complainant.   On perusal of the proof affidavit and type sets filed by the both the complainant and the opposite party it is proved that the deceased person had appointed his wife Mrs. Baby Shymala  as nominee in the policy, there is no dispute of making her to claim the policy proceeds what she is due to receive.  The complainant had submitted legal heir certificate and dependents of her husband who are entitled to have the policy proceeds.   

9.     The averments filed by the opposite party cannot be acceptable, but as per the contract of insurance made by the insured and the insurer / the opposite party is liable to pay sum assured, in the policy, in the event of any unforeseen event causing bodily injury / death  by external violent and visible means, the company shall pay the insured person or nominee/  heirs of insured person as the case may be.  The complainant’s husband died on the spot due to the impact of rash and negligent driving of the KSRTC Bus.   The averments made by the opposite party that the complainant’s husband brother ransacked the house of the deceased person and objected the claim of the insurance amount, by stating that his brother was intoxicated could not be accepted because he was a person who had given the FIR who could have revealed at the inception of filing FIR.  Hence the repudiation of the opposite party of the valid claim is not justifiable.   We are of the considered view that the FIR, postmortem report and enquiry with doctor who has conducted postmortem  does not reveal that the deceased was intoxicated.  We cannot rely on the Globe associates report whereby its contents in submitting unsigned letter collected from the pillion rider and the deceased mother.   

10.      Hence we are of the view, that the opposite party has to settle a sum of Rs.10,000,00/- where the legal heir is supposed to receive the insured amount with interest at the rate of 9% p.a. from the date of repudiation i.e. 17.1.2008 to till the date of payment and also to pay a sum of Rs.50,000/- as just and reasonable compensation for mental agony caused to the complainant and also to pay a sum of Rs.5,000/- as litigation charges to the complainant.   As such the points 1 & 2 are answered in favour of the complainant.

          In the result, the complaint is partly allowed.  The opposite party is directed to pay a sum of Rs.10,00,000/- (Rupees Ten lakhs only) being the full and final settlement of insured amount under Personal Accident insurance policy along with interest at the rate of 9% p.a. from 17.1.2008  to till the date of payment and also directed to pay a sum of Rs.50,000/- (Rupees fifty thousand only) as compensation and also to pay a sum of Rs.5,000/- (Rupees Five thousand only) as litigation charges to the complainant within six weeks from the date of this order failing which the compensation amount of (Rs.50,000/) shall carry interest at the rate of 9% per annum from the date of order  passed till the date of realization.

     Dictated directly by the Member-II to the Assistant, transcribed and computerized by her, corrected by the Member-II and pronounced by us in the open Forum on this the 15^th    day of  October   2015.

MEMBER-I                                           MEMBER-II                                           PRESIDENT.

Complainants’ Side documents :

Ex.A1- 11.8.2006  -  Copy of Personal Accident Insurance.

Ex.A2- 18.8.2006  – Copy of letter from the opposite party.

Ex.A3- 9.6.2007    - Copy of  First information report.

Ex.A4- 9.6.2007    - Copy of Postmortem certificate.

Ex.A5- 5.7.2007    - Copy of death certificate.

Ex.A6- 10.7.2007  - Copy of letter from the opposite party.

Ex.A7- 3.9.2007    - Copy of claim form.

Ex.A8- 12.9.2007  - Copy of legal heir certificate.

Ex.A9- 17.1.2008  - Copy of letter from the opposite party.

Ex.A10-15.10.2008- Copy of notice sent by the complainant to the opposite party.

Ex.A11- 18.10.2008- Copy of Ack. card.

Ex.A12- 20.10.2008 –Copy of first information report.

Ex.A13- 21.10.2008 –Copy of reply to the legal notice

Ex.A14-         -       - Copy of family card.