Date of filing      : 17-01-2013

Date of Disposal : 27-02-2015

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

Friday, this the 27th day of FEBRUARY, 2015.

          PRESENT:  Sri P.V.Krishna Murthy, B.A., B.L., President

                                      Sri M.Subbarayudu Naidu, Member

                      C.C.No.5/2013

Athimanjari Velayadum,

S/o.Ponnuswami,

Hindu, aged about 48 years,

Resident of Vallur Village & Post,

Muthukur (M),

Nellore District.                                                                      …  Complainant

                      Vs.

1. TATA AIG General Insurance Company Ltd.,

    Rep. by its Manager,

    The TATA AIG General Insurance Co.Ltd.,

    2^nd Floor, A Block, My Home tycoon,

    Kundanbagh, Begumpet, Hyderabd – 500 016.                                                                                 

2. TATA AIG General Insurance Company Ltd.,

    Rep. by its Manager,

    Beside Sundara Deluxe Cini complex,

    S.P.S.R.Nellore.                                                                … Opposite parties

This matter is coming on 23-12-2014 before us for final hearing in the presence of Sri G.Srinivasulu, Advocate for the complainant and  Sri E.V.Ramireddy, advocate                                  

for the opposite parties and having stood over for consideration till this day, this Forum has passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, MEMBER ON BEHALF OF THE BENCH)

This consumer case is filed against the opposite parties by the complainant to direct them jointly and severally to pay Rs.1,00,000/- towards personal accident insurance claim amount with interest thereon at 12% p.a. from    16-03-2010 i.e., the date of death to till the date of realization; to pay Rs.20,000/- towards damages for mental agony, financial loss and distress and to grant costs of complaint Rs.5,000/- and pass such other and further reliefs as the Hon’ble Forum may deemed fit and proper in the interests of justice.

1.  The factual matrix leading to filing of this consumer case is as stated as hereunder:

(a)     It is the case of the complainant that his unmarried brother Athimanjari Balasubrahmanyam is having Hero Honda Splender Motor Byke bearing Registration No.AP 26 F 3829 and the same is insured with the opposite parties including P.A. insurance bearing policy No.015076378600 and the same is in force from 26-11-2009 to 25-11-2010.  While so, on 11-03-2010 at about 8.45 P.M., the said Athimanjari Bala Subrahmanyam while returning to his village Bandlapalem from Nellore, met with an accident due to rash and negligent driving of one D.Ramanaiah by tractor bearing Reg.No.AP 26 X 6173 at Pidathapoluru Narayana College and Rangachari Kandrika in Muthukur Road and sustained serious injuries and he was shifted to Narayana General and Super specialty Hospital, Chintareddypalem, Nellore District and while undergoing treatment, the said Balasubrahmanyam died due to the said accident on 16-03-2010.  The said incident was reported under FIR No.65/2010 of Nellore rural police station.

(b) It is also further narrated by the complainant at page no.2 of his   complaint that while so that his mother by name A.Paramatamma, being nominee to the said policy submitted personal accident insurance claim to the opposite parties with all documents as required by them including original insurance policy.  The opposite parties also issued discharge voucher to the said policy for Rs.1,00,000/-.  It is submitted that while the claim is pending before the opposite parties, the said A.Paramatamma, mother of the deceased insured also died on 15-1-2011 leaving behind the complainant as his nominee and beneficiary and it is submitted that the insured deceased is an unmarried person and the complainant is the nominee and beneficiary to the said Paramatamma, the mother of the deceased.  So, the complainant had submitted a letter to the opposite parties requesting to pay the P.A. insurance amount of Rs.1,00,000/- to him.  The opposite parties are required family member certificate and no objection letters from the other children of the said  A.Paramatamma, who is having two more daughters who married long back and living with their family else separately.  So, the complainant had submitted no objection letters from the said daughters and family member certificate and requested to pay the claim amount being nominee and beneficiary to the said policy.  But the opposite parties did not choose to pay the claim amount so far and postponing the same on some pretext or other.

 ( c ) It is also further submitted by the complainant at page no.3 of his complaint that he is the nominee and beneficiary to the said policy and also submitted family member certificate and no objection letters from other children of the deceased.  But so far, the opposite parties did not choose to pay the P.A. insurance claim to the complainant.

(d) It is also further stated by the complainant at page no.3 of his complaint that non-payment of insurance claim amount so far, clearly goes to show their (OPs) gross negligence and deficiency in service.  Due to that the complainant had suffered lot of mental agony, financial loss and distress.  These are all caused due to gross negligence and deficiency in service committed by the opposite parties in not paying the genuine claim of the insurance amount.  So, the opposite parties are not only liable to pay the insurance claim amount with interest, but also liable to pay damages of Rs.20,000/-  Hence,  the complainant had approached the Hon’ble Forum for redressal of his grievances.

(e) It is also further submitted by the complainant at page no.3 of his complaint that there are causes of action to file this consumer case against the opposite parties.  Hence, the complaint.

II DEFENCE: In response to the complaint, the 1^st opposite party has denied the allegations of the complaint of the complainant, in its written version filed on 09-05-2013 as per S.R.No.727/13 and adoption of written version memo was also filed by the 2^nd opposite party on 05-07-2013 and their affidavit evidence was also filed on 23-01-2014 by the opposite parties.  There is no dispute between the parties about the policy of insurance.  The averments which are made in unnumbered para 2 of the complaint are not true and correct and they are denied.  It is submitted that the mother of the deceased being the class I heir, was entitled for the personal accident benefit and accordingly all the documents were obtained from her.  However, even before the claim could be processed, the mother of deceased insured, was also expired.  It is also stated in para 4 of 1^st opposite party’s written version that as per the documents which are available on hand, present complaint is not related to the deceased insured.

(ii)  It is also further stated in para – 5 of its written version of the 1^st opposite party that it does not admit that the complainant is the nominee and beneficiary to the said policy. The 1^st opposite party further denies that the non-payment of the Insurance claim amount clearly goes to show that their gross negligence and deficiency of service and that the complainant suffered lot of mental agony, financial loss and distress.

(iii)  It is also further stated in para 6 of its written version of 1^st opposite party that the deceased Athimanjeri Bala Subrahmanyam was insured as owner of the Hero Honda Splendor Motor cycle bearing No.AP 26 F 3829 vide policy no.01576378600 and that the same was in force from              26-11-2009 to 25-11-2010.  The 1st opposite party further submits that as per the records it reveals that on 11-03-2010 at 8.45 pm the said Athimanjeri Bala Subrahmanyam met with an accident due to the rash and negligent driving of the tractor bearing No.AP 26X 6173 sustained serious injuries and died.  This opposite party further submits that the mother of the deceased by name Athimanjeri Paramatamma being 1^st class legal heir, submitted all the documents as required including original insurance policy for processing the claim.  This opposite party further submits that the a discharge voucher was issued by Athimanjeri Paramatamma for Rs.1,00,000/-. The 1^st opposite party further submits that the discharge voucher was issued by Athimanjeri Paramatamma for Rs.1,00,000/-.  The 1^st opposite party further submits that while the claim was pending before the opposite parties, the said Athimanjeri Paramatamma, mother of the deceased died on 15-01-2011.

(iv) It is also further submitted in paras 7 and 8 of its written version of 1^st opposite party that the complainant is not  the legal heir of the deceased.  The family member certificate dt.19-04-2010 issued by the Tahsildar, Muthukur Mandal, SPSR Nellore District clearly revels that  Sri Atimu jeri Bala Subrahmanyam, son of late Ponnuu Swamy, resident of Bandlapalem, H.No. Valluru Village, Muthukuru Mandal.  SPSR Nellore District died on 16-03-2010 leaving behind the family member namely Atimujeri Paramathamma and that she was the only family member of the deceased.  The said family member certificate does not reveals that the complaiannt is the family member of the deceased.  As per the house-hold card, it reveals that Atimu jeri Paramatamma is the wife and Atimu jeri Bala Subrahmanyam is the son of Atimu jeri Ponnu Swamy.  The said House Hold Card does not reveal that the complainant is the son of the said Atimu jeri Ponna Swamy.  This opposite party further submits that the name of the complainant is not mentioned either in the family member certificate or the House Hold Card of the deceased.  From the above it is very clear that the complainant is not the legal Heir of the  deceased.

(v) It is also further mentioned in paras 9 and 10 of its written version of 1^st opposite party that taking advantage of the surname, the complainant filed the above complaint for wrongful gain from this opposite party insurance company.  If really the complainant is the own brother of the deceased, his name ought to have mentioned in the family member certificate or in the House Hold card.  Since the complainant is not the legal heir of the deceased, the opposite parties are not liable to pay any amount to the complainant herein. There is no negligence or deficiency in service on the part of this respondent.  As per the documents submitted by the complainant, he is not the legal heir of the deceased.  Hence, the opposite parties are not liable to pay any amount towards damages as claimed in the complaint.

(vi)  It is also further narrated in paras 11 and 12 of its written version of 1^st opposite party that without prejudice to the above contentions, it is submitted that if the complainant submits the Succession Certificate obtained from the court of law, the opponent herein is ready and willing to disburse the claim amount  in favour of the complainant.  There is no cause of action to file the present complainant.  This 1^st opposite party insurance company humbly submits that the opposite parties reserve right to file additional counter as and when additional information is received and also have liberty to adduce documentary and oral evidence during the course of enquiry/  proceedings of this case.  This Hon’ble Forum has no jurisdiction to entertain this application.  The remedy is elsewhere, but not before this Forum.

(vii)  It is also further stated in paras 15 and 16 of its written version of 1^st opposite party that since the complainant is not the legal heir of the deceased, the question of payment of Rs.1,00,000/- with interest at 12% p.a. does not arise and not liable to pay costs of this petition and further reliefs.  In view of the above circumstances, this 1^st opposite party insurance company prays that this Hon’ble Forum may be pleased to dismiss the complaint with exemplary costs.

III.  The complainant has filed an affidavit (PW1) on 01-08-2014 which contains the facts and circumstances of the case and the documents which are marked as Exs.A1 to A18 and the case –law is applicable on behalf of him,  whereas the opposite parties one Mr.Jayanta Roy, Chief-manager claims, Hyderabad (RW1) has filed his chief-affidavit on 23-01-2014 and the documents which are marked as Exs.B1 to B4 on behalf of opposite parties.  No written arguments have been filed by the parties to the complaint.

IV.  In view of the facts and circumstances of the case, and the pleadings and documentary evidence of the both parties, that the following issues/points are arise for our determination:-

(a) Is there any deficiency in service on the part of the opposite parties towards the complainant?

(b) Whether the complainant is entitle the reliefs as prayed for, if it is so, to what extent?

( c ) To what relief?

V. (a) Points 1 and 2:-  In view of the points 1 and 2 and their interdependence with each other, we have taken up together for discussion and determination.

              The learned counsel for the complainant Sri Sk.Abdul Samdth has vehemently argued that the complainant is being natural elder brother of the deceased, legal heir to claim insurance amount in question payable by the opposite parties to the complainant.  He has also reiterated the facts of the case in detail and brought to the documents to prove his case beyond reasonable doubt.  The repetition of the facts of the case once again is avoided here.  He has also further argued that the document which is marked as Ex.A6 shows that the complainant and his married two sisters namely Smt.B.Murugamma and Smt.P.Vollemma are, son and  daughters of late Smt A.Paramtamma, who died on 15-01-2011 leaving behind the members as reported by the Mandal Revenue Inspector II, Muthukur Mandal, Nellore District.  A.Certificate was issued by Tahsildar of Muthukur mandal, Nellore (Dt) on 21-06-2011.  This is the latest certificate (Ex.A6) issued by M.R.O., Muthukur mandal, Nellore (Dt).

       The said learned counsel for the complainant has also stressed that there is no dispute about the policy of the deceased.  Now, the moot question is that who is the legal heir next to the deceased mother A.Paramatamma?  The members left in the family are the complainant and his two sisters.  He has also further argued that Exs.A16 and A17 documents of no-objection certificates of B.Murugamma and P.Valemma respectively, to claim the insurance amount and in view of those two documents, there is no necessity for the complainant to obtain any succession certificate from the court.  There is no objection and no rival claimants of insurance amount.  In this context, the said learned counsel for the complainant has cited two decisions of our Hon’ble High court of A.P., which are reported:- Law Summary journal 2004(2) L.S.115 and 2009(2) Andhra Law Times at page no: 242  are applicable to the facts of the case on hand.  He has also argued that the opposite parties have not taken into account Exs.A6 document and they are delaying to process the claim inspite of submission of relevant documents to them.  His further contention is that there is gross negligence and deficiency in service on the part of the opposite parties towards the complainant and they are liable to pay the awarded insurance amount with compensation for their inordinate delay.  Finally, the said learned counsel for the complainant has prayed that the Hon’ble Forum may be pleased to direct the opposite parties as prayed for and allow the complaint with costs.

      On the other hand Sri E.V.Ramireddy, the learned counsel for the opposite parties has also vehemently argued that mother of the deceased by name A.J.Paramatamma being  1^st class legal heir submitted all the documents as required original insurance policy for processing the claim.  He has also argued that while the claim is pending before the opposite parties the said A.J.Paramatamma, mother of the deceased also died on     15-1-2011.  In this context, the document Exs.B2 shows that the family certificate issued by the Tahsildar, Muthukur mandal, Nellore (Dt)            dt.14-12-2010 was the wife of Sri Ponnuswamy.  Exs.B1 is the household card shows that family members details.  The complainant is not the legal heir of the deceased.  The said learned counsel for the opposite parties have also contended that if really the complainant is the own brother of the deceased, his name ought to have mentioned in the family member certificate (Ex.B2) or in the house-hold card (Exs.B1).  There is no negligence or deficiency in service on the part of the opposite parties towards the complainant.  His further contention is that if the complainant submits that the succession certificate obtained from the court of law, the 1^st opposite party herein is ready and willing to disburse the claim amount infavour of the complainant.  He has also prayed that in the above circumstances of the case, the Hon’ble Forum may be pleased to dismiss the  complaint with exemplary costs.

                         Forum’s Findings and its observations  

  Heard, the learned counsel for both parties and perused the record very carefully. We have also heard the oral arguments of the said learned counsel for the parties.  Parties led their evidence by way of affidavits, in support of their case.  Each case has to be judged on its own facts.    Complaint is based on deficiency in service must establish the same by leading cogent evidence 2011(2) CPR 69(NC).  Complainant must prove its claim by reliable evidence – 2011(2) CPR 81(NC).  One who makes an allegation is required to prove it beyond doubt – 2011(2) CPR46 (NC).  Insurance claim cannot be rejected on mere surmises – 2011(2) CPR(NC)308.

       Exs.A6 is the document dt.21-06-2011 issued by Tahsildar, Muthukur mandal, Nellore(Dt) has clearly established that the complainant(51) being the eldest son of the deceased A.J.Paramatamma is the legal heir to claim the insurance amount from the opposite parties.  Ex.B2 is the certificate issued by the Tahsildar, Muthukur mandal, Nellore District dated 14-12-2010 is the earlier one and latest certificate is Exs.A6 issued by one and same Tahsildar, Muthukur mandal, Nellore, providing the family certificate and the question is that which one is believable in its entirety, is the point to be determined.  Exs.A6 is the latest one with all family members of late A.J.Paramatamma issued by Tahsildar Muthukur Mandal, Nellore (Dt).  The opposite parties are ought to have verified the family members certificate in total compared with should verify revenue records and obtaining partly how for it is justified for the opposite parties and who is to be blamed for its lapse and it is for the reasons best known to the opposite parties. It is against the law. The said learned counsel for the complainant has cited decisions of our  Hon’ble High court of A.P. and sum and substance of it, has clearly evident that when there is no rival claimants, succession certificate is not necessary to obtain from court of law.  The complainant is the elder brother of the deceased – insured.  He is also legal heir of the deceased mother.

   It is clearly appears that death is occurred on 11-03-2010 and mother of the deceased also died on 15-01-2011.  The process of the claim and pendency of it since long time, is clearly a deficiency in service on the part of the opposite parties.  We are satisfied with the oral arguments of the complainant’s counsel and it is justified to award Rs.1,00,000/- to the complainant.  These two points 1 and 2 are held in favour of the complainant and against the opposite parties, accordingly. 

Point No.3: In the result, the complaint is allowed in part, ordering the opposite parties 1 and 2 to pay Rs.1,00,000/- (Rupees one lakh only) jointly and  severally to the complainant with interest @9% (nine) p.a., from the date of the complaint i.e., 17-1-2013 till the date of realization.  The costs of complaint is Rs.2,000/- (Rupees two thousand only).

Typed to the dictation to the stenographer and corrected and pronounced     

by us in the Open Forum this the 27th day of February, 2015.    

                Sd/-                                                                     Sd/-

         MEMBER                                                                 PRESIDENT

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

EXHIBITS MARKED FOR COMPLAINANT:

 EXHIBITS MARKED FOR OPPOSITE PARTY:                        

                                                                               Id/- 

                                                                      PRESIDENT

Copies to:

1) Sri G.Srinivasulu, Advocate, Nellore.

2) Sri E.V.Rami Reddy, Advocate, 1^st floor, Raju Bhavan,

    Beside District Court, Nellore-524001.

Date when order copies are issued: