This complaint coming up before us for final hearing on                      17-08-11 in the presence of Sri N.P.Nathaniel, Advocate for complainant and of Sri K.Srinivasa Rao, Advocate for opposite party, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

                This complaint is filed under section 12 of the Consumer Protection Act, 1986 by the complainant praying to direct the opposite party to pay the amount covered under policy claim i.e., Rs.3,71,000/- with subsequent interest and for Rs.10,000/- towards compensation for the mental agony suffered by the complainant besides Rs.1000/- towards costs of complaint.

The averments of complaint in brief are as follows:

                The complainant is the wife of late Rachuri Narayana Murthy who worked as driver in KCP Cement Factory, Macherla.  On 14-07-02 being holiday husband of complainant late Rachuri Narayana Murthy and his two daughters went to Nagarjuna Sagar for picnic.  When they are bathing at the bank of Nagarjuna Sagar due to slip Rachuri Narayana Murthy and his daughters fell in the water and all of them died.  As her husband and daughters have not returned back, complainant personally, through relatives and friends made enquiries and came to know that her elder daughter died. On 16-07-02 she gave a report to Nagarjuna Sagar police, who registered the same as crime No.54/2002.  Later the complainant came to know that her husband and younger daughter were also died.  Police conducted inquest and postmortem was held over the dead bodies of three deceased. The Additional Superintendent of Police, Gurazala and Executive Magistrate, Macherla closed the case as per final report under section 174 Cr.P.C. as the death due to drowning. The husband of complainant late Rachuri Narayana Murthy was having LIC Policy in his name.  The complainant received the amount from the Life Insurance Corporation of India.  Later Rachuri Narayana Murthy was also having insurance policy in his name when he was working in KCP Cements under policy K.C.P.P.A.P.No.150900/42/01/01015. After his demise, the complainant approached opposite party and requested to pay the amounts covered under the said policy but the opposite party failed to pay the same and refused to pay the same. Several oral demands made by the complainant are proved futile.  Due to the attitude of opposite party, complainant suffered a lot mentally and financially, which amounts to deficiency of service under the provisions of CP Act.  Hence, the opposite party is liable to pay compensation to the complainant towards damages and mental agony.  Hence, the complaint.

Opposite party filed its version, which is in brief as follows:

                Most of the allegations made in complaint are false, incorrect and misleading and the complainant is put to strict proof of the same.  Complaint is not maintainable either in law or on facts.  The deceased committed suicide by jumping into Sagar.  Complainant after thought gave a report to police after two days with false concocted story and got registered the same with the connivance of police and subsequently she stage managed police and closed the same as death caused due to drowning for the purpose of getting insurance amount, since there is exclusion clause in the policy for suicidal death.   Opposite party appointed R.Srinivasa Rao, Insurance Surveyor and Investigator to investigate into the matter and submit report.  The said investigator investigated into the matter and submitted report on           11-07-03 along with documentary evidence like affidavits of eye witness to the incident, news item published in several daily news papers like Eenadu, Vartha etc. and recorded the statements of complainant and her in-laws and parents.  He categorically discussed the entire material he procured and concluded with reasons that this is a clear case of suicide but not drowning.  The same may be read as part of discussion. Complainant pleads that her husband and two daughters went to Sagar and while they were taking bath, accidentally all the three drowned into Sagar. But as per the statement of eye witnesses, the deceased first throw his daughters from the bridge into Sagar and then he removed his shirt and put the same along with identity card on the ground and he also jumped into Sagar.  As could be seen from the photos taken by the investigator, the accident spot was near Gantry Crane on Nagarjuna Sagar V.P.South Dam, where the depth of water level was 506 ft.  There is no question of taking bath at the accident spot as the water level is 506 ft.  The police investigation is nothing but a stage managed and cooked up.  As per the final report, the dead body of Manusha was found on 16-07-02 at about 2.15pm and the dead bodies of Narayana Murthy and his first daughter Bhargavi were found on 17-07-02.  The SI of Nagarjuna Sagar Police Station prepared rough sketch on 16-07-02 of all the three in the Krishna Reservoir.  The first daughter Bhargavi was found on 17-07-02 but the inquest was held on 16-07-02 between 4 pm to 5.30 pm and all the witnesses and the concerned SI of Police and scribe signed on 16-07-02 itself.  As per the inquest of deceased the dead body of Manusha was found at 2.15 pm on 16-07-02 and the dead body of Bhargavi was found at 6.15 pm on 16-07-02, whereas the inquest on dead body of Bhargavi was conducted on 16-07-02 between                      4 pm to 5.30 pm.  All these things clearly prove that the deceased Narayana Murthy with a view to commit suicide, first he thrown away his two daughters into Nagarjuna Sagar and then he also jumped into the Sagar and thereby committed suicide.

                As per exception No.5 of the terms and conditions of policy, the suicide is not covered. Hence, this opposite party repudiated the claim made by the complainant and intimated the same to the insured i.e., KCP Ltd., Macherla by its letter dt.07-01-04.  Complainant has not approached the Forum with clean hands.  There is no deficiency of service on the part of opposite party.  Hence, the complaint may be dismissed with costs.    

                Complainant and opposite party filed their respective affidavits in support of their version reiterating the same.

                On behalf of complainant Ex.A1 to A8 are marked and on behalf of opposite party Ex.B1 to B3 are marked. 

Now the points for consideration are

1. Whether there is any deficiency of service on the part of opposite party?
2. To what relief the complainant is entitled to?

POINT No.1

                The case of complainant is that on 14-07-02, her husband late Narayana Murthy and her two daughters went to Nagarjuna Sagar on picnic and while they were bathing at the Sagar slipped into Sagar and died, that her husband who worked as driver in KCP Cement Factory, Macherla was having an insurance policy with opposite party and that she claimed for the insured amount and that opposite party did not pay the same and refused to pay the same.

                The case of opposite party is that the death of late Narayana Murthy i.e., husband of complainant on 14-07-02 is a suicide and that suicide is exempted under terms of policy and that therefore, complainant is not entitled for the claim made by her.

                It is not in dispute that the deceased Narayana Murthy was working as driver in KCP Ltd., Macherla Town.  It is also not in dispute M/s.KCP Ltd., Macherla got insured the life of their employees with opposite party as shown in Ex.B1 copy of policy containing the list of employees of KCP Ltd.  According to Ex.B1, the life of deceased Narayana Murthy was insured for a total sum of Rs.3,71,000/-.  According to complainant the deceased Narayana Murthy along with his two female children went to Nagarjuna Sagar on 14-07-02 on a picnic and while they were taking bath they fell into Sagar and drowned and died.  Complainant gave FIR to the police on 16-07-02 at 3 pm and the same was registered by the Nagarjuna Sagar Police under crime No.54/02 under section 174 Cr.P.C. and the same was marked as Ex.A2. Complainant gave Ex.A2 FIR stating that on             14-07-02 her family members containing herself, her husband and two children aged about 8 and 4 respectively intended to go to Nagarjuna Sagar on 14-07-02 as it is a Sunday and holiday for her children and at the time of starting to go to Sagar, she had stomach pain and due to that she did not went to Sagar and that her husband took her two children and went to Sagar and as they did not returned back on the same day, she enquired in the houses of their relatives by phone and called for her parents-in-laws and her parents and they all searched for her husband and children, that on 16-07-02 while they were enquiring near Sagar, they received information that one small child’s dead body was floating in the Krishna River and on that they went to see dead body and identified the dead body at 2.15 pm as that of her younger daughter and gave report to the police to enquire into the matter.   On 16-07-02 inquest was held over the dead body of younger daughter of the complainant namely Rachuri Manusha in the presence of Panchayatdars and the Panchayatdars are of the opinion that the deceased Manusha was died due to drowning.  Subsequently on            16-07-02 evening at about 6.30pm, the dead body of elder daughter namely Bhargavi aged 8 years was traced in Krishna Reservoir and inquest was held over the said dead body on 17-07-02 at 7.30 am and according to the opinion of Panchayatdars, the said Rachuri Bhargavi was died due to drowning in the water.  Subsequently on 17-07-02 at about 9.15 am, the dead body of Rachuri Narayana Murthy was recovered from Krishna Canal Reservoir and inquest was held over the same at 9.30 am on 17-07-02 itself and according to the Panchanyatdars, the said Narayana Murthy, died due to drowning into River water.   Thus a perusal of police investigation reveals that the deceased Narayana Murthy and his daughters while they were bathing in the Nagarjune Sagar at about 5.30 pm on 14-07-02, they slipped into River and died due to drowning.  Complainant gave report to police on 16-07-02 after the recovery of dead body of her younger daughter from the Krishna Canal.  Complainant explained the delay in giving FIR as that they have searched for her husband and children on 15-07-02 and made enquiries in their relative’s houses by phone and only on seeing the dead of her younger daughter she gave report to the police. Thus the delay in giving FIR was explained by the complainant. Soon after the investigation was completed, the SI of Police, Nagarjuna Sagar Police Station gave final report dt.30-09-02 dropping further action in the matter since the investigation revealed that the deceased while taking bath in the reservoir accidentally fell in the reservoir and died. Subsequently complainant approached the opposite party and requested to pay the amount covered under the policy.  But the claim of complainant was repudiated on the ground that the investigation of their surveyor revealed that late Narayana Murthy died by committing suicide on 14-07-02 and the same was informed to the insurer KCP Ltd., Macherla who made a claim for the death of late Narayana Rao under Ex.B2.

                Subsequent to the claim, the opposite party appointed a surveyor and investigator, who investigated into the alleged incident, gave report to opposite party stating that late Narayana Murthy threw her two daughters into Nagarjuna Sagar reservoir and himself jumped into the reservoir and committed suicide due to financial problems.

                According to opposite party, the investigation of the police is nothing but a stage managed and cooked up and that the police have done the desk table investigation and prepared record to suit the claim of the complainant.  The said investigator of opposite party collected news items published in daily news papers like Eenadu and Vartha.  A perusal of the said paper publications shows that the deceased Narayana Murthy threw his two daughters into Sagar Reservoir and later jumped into the reservoir and committed suicide due to financial troubles.  This is the earlier information published in the News Papers regarding the cause of death of the deceased Narayana Murthy and his two daughters. According to the investigation of surveyor of opposite party, the deceased Narayana Murthy first threw his two daughters from the bridge into Sagar and after removing his shirt and put to the same along with identity card on the ground the said Narayana Murthy also jumped into Sagar.  The said investigator recorded the statements of some alleged eye witness to the occurrence and finally submitted a report to opposite party.  Opposite party pointed out some defects in the police investigation, which are as follows:

                “As per final report, the dead body of Manusha (second daughter) was found on 16-07-02 about 2.15pm and the dead bodies of deceased Narayana Murthy and his first daughter Bhargavi were found on 17-07-02.  But the SI of Police, Nagarjuna Sagar prepared rough sketch 16-07-02 itself showing the dead bodies of all the three in the Krishna Reservoir.  The first daughter Bhargavi was found on                17-07-02 but the inquest was held on 16-07-02 between              4pm to 5.30pm and all the witnesses and the concerned SI of police and scribe signed on 16-07-02 itself.  As per the inquest of deceased the dead body of Manusha was found about 2.15pm on 16-07-02 and dead body of Bhargavi was found about 6.15pm on 16-07-02 whereas the inquest on the dead body of Bhargavi was conducted on 16-07-02 between 4 pm to 5.30pm”   

                A perusal of inquest reports of the three deceased persons reveals that the dead body of younger daughter of Narayana Murthy namely Manusha was recovered from the reservoir at 2.15pm on        16-07-02 and the inquest was held at 4pm on the same day.  The dead body of elder daughter of Narayana Murthy viz. Bhargavi was recovered from the reservoir at 6.15pm on 16-07-02 but the inquest was held over the same on 7.30am on 17-07-02.  The dead body of late Narayana Murthy was recovered at 9.15am on 17-07-02 and inquest was held over the same at 9.30am on the same day.  But in the final report of the SI of Police, it was mentioned that the dead bodies of elder daughter and Narayana Murthy were found on              17-07-02.  Thus it was wrongly mentioned in the final report regarding the recovery of elder daughter of Narayana Murthy.  But in the rough sketch prepared by SI of Police, the date was mentioned as 16-07-02 at the signature of SI of Police. A perusal of inquest report of elder daughter of Narayana Murthy reveals that she was recovered from the Reservoir at 6.15pm on 16-07-02 and inquest was held over the same on 17-07-02 morning from 7.30am to 9 am.  Thus a perusal of police investigation reveals that the SI of Police has wrongly mentioned the recovery of dead body of Bhargavi in his final report and wrongly mentioned the date in the rough sketch prepared by him.  The said defects in the final report and the rough sketch does not effect the cause of death of the deceased Narayana Murthy.

                As per the version of opposite party, the policy does not cover suicide. But the opposite party has not filed the terms and conditions of the said policy in support of its version.  The opposite party has filed the terms and conditions of a different policy viz. Kisan Credit Card Scheme Policy, which is not relevant to the policy in question.

                The surveyor of opposite party submitted report to the opposite party along with a covering letter dt.11-07-03 wherein the surveyor and investigator mentioned that:

                “Insured’s nominee lodged a claim with the insurers claiming her husband died due to fire accident. During the course of investigation, we have proved with documentary evidence that the insured died due to committing suicide.  The nominee approached Ombudsman and her case was dismissed. Hence, delay in releasing this investigation report.”              

                Though it was mentioned that the nominee lodged a claim with the insurers claiming her husband died due to fire accident, no supporting evidence to that effect was placed by the opposite party.  Further even though it was mentioned in the said letter that nominee approached the Ombudsman and her case was dismissed, no supporting evidence to that effect was placed by the opposite party.   The so called surveyor and investigator stated in his report that he has recorded the statements of the witnesses.  The surveyor in his report stated that he has obtained the affidavit of the complainant i.e., nominee/wife of the deceased Narayana Murthy duly notarized by a notary and filed copy of the same along with his report.  The date of attestation of the said affidavit was firstly mentioned as “08-11-02” and the same was struck of and corrected into “31-10-02” to suit the date of purchase of the first page stamp of the said affidavit.  Therefore, the bonafides of the affidavit obtained from the complainant and its attestation by a notary is doubtful.  Therefore, much reliance cannot be placed on the said affidavit.

                The investigator of opposite party in his investigation stated that as per the statements of eye witnesses whose names were mentioned in the inquest report states that on 14-07-02 at about 5 pm in the evening while they were selling soda at V.P. South Dam,  Nagarjuna Sagar they saw the insured throwing his two children into reservoir water from the parking place near the crane and by the time they ran to the spot, insured took out his shirt and identity card from his pocket and throw them on the parking place and he too jumped into the reservoir.

                The statements and affidavits of the said eye witnesses namely Babavali and M.Srinivas are filed before this Forum.  A perusal of the said statements and affidavits of the above said eye witnesses throws doubt on the bonafides of the affidavits of the said eye witnesses.  The statement of Babavali was signed by him on 02-11-02.  The affidavit of the said Babavali before a notary was recorded on         08-11-02.  Moreover there is difference in the signature of Babavali in the statement when compared to the affidavit.  In the statement he signed in Telugu as Babavali whereas in the affidavit before notary he signed as SD Babavali (in Telugu).  Another eye witness is one Mattapalli Srinivasa Rao.  His statement was recorded on 20-11-02 wherein he signed as Mattapalli Srinivasa Rao vralu (in Telugu), whereas in the affidavit dt.08-11-02, the said Srinivasa Rao signed as M.Srinivas (in English).  Thus there is variance in the signatures of the so called eye witnesses in the statements and the affidavits.  Therefore, the bonafides of the statements and affidavits of the said eye witnesses are doubtful.  The remaining statements of the witnesses are only hearsay statements.  The paper publications relied on by the opposite party are also hearsay publications.

                The investigator and surveyor in his report attributed motive for committing suicide by the insured as financial difficulties.  The surveyor as mentioned in his report that due to financial problems, the insured committed suicide stating that he has not paid the house rent for the past six months and took loan of Rs.10,000/- from the house owner and has not repaid the same.  If the insured has not paid rent for six months, can the owner of the house advance a sum of Rs.10,000/- towards a loan.  Therefore, the said allegation of financial trouble faced by the insured is doubtful and the same was not proved by any sort of evidence.  Further the surveyor also stated in his report that the insured had brought a sum of Rs.20,000/- on hand loan and paid to his sister for their house construction.  If the insured is facing financial trouble, can he pay Rs.20,000/- to his sister by borrowing the same from somebody on hand loan.  This is also doubtful and the said allegation was also not proved by any sort of evidence by the opposite party.  Further it was alleged that before jumping into Sagar, insured removed his shirt and threw his identity card and shirt on the parking place. What is the necessity for a person committing suicide to remove his shirt and threw the same along with identity card.  The said allegation is also doubtful as it is against natural conduct.  Therefore, in view of foregoing discussion the private investigation made by the investigator and surveyor of opposite party cannot over weigh the investigation made by the police. Hence, much importance cannot be given to private investigation. 

                During the course of arguments learned counsel for opposite party alleged that there is a delay in giving FIR by the complainant and in support of his argument he relied on the order of National Commission, New Delhi between United India Insurance Company Ltd. Vs. Potru Vijaya Lakshmi dt.05-05-10.  The facts of the said case are that the complainant along with her husband had gone to Ramagundam and on the night of 10-05-1999 while the insured was walking alone on the road in Ramagundam an unknown Scooterist came in a rash and negligent manner and knocked down Ramulu (insured), who as a result received head injury.  Ramulu returned home and informed the complainant about the incident and that he could not observe the scooter number and identity of Scooterist since it was night time.  The complainant herself noted a small external injury near the right ear of Ramulu.  However after sometime, the insured Ramulu collapsed and the complainant took him to NTPC Hospital, Ramagundam where her daughter was employed.  The duty doctor at the hospital examined the insured and declared him dead.  Since the incident had happened at Ramagundam where the complainant did not have any acquaintance she could not make any police complaint immediately but a report was made later on at Ramagundam Traffic Police Station and it was registered under section 304(A) IPC.  Postmortem was conducted on the body of Ramulu and insurance company was informed about the death of Ramulu on         27-05-1999 i.e., after 16 days of the death and made a claim.  The said claim was repudiated by insurance company on the ground that the NTPC authorities had not registered a medico legal case and that the police was not informed immediately and further that there was expert medical opinion to the effect that there was no corroboration as to the injury narrated by the complainant and as reported in the postmortem examination report. Besides, the repudiation letter stated that there was several discrepancies as to the entries made in the emergency ward register and the ambulance log book which carried Ramulu from the place of his residence to the NTPC Hospital.

                In the said case the National Commission gave the following finding “having considered the material from all possible angles, we are of the considered opinion that complainant has failed to establish that the insured/deceased had died on account of having sustained bodily injury resulting solely and directly from the accident caused by outward, violent and visible means.  We have therefore, no hesitation in holding of finding of State Commission is not correct and proper appreciation of the evidence and material brought on record.  In our opinion, repudiation of claim by insurance company based on above material was fully justified and the insurance company cannot be held guilty of deficiency of service in repudiating the claim………….”   

                The facts of the above case are quite different from the facts of the present case on hand.  In the present case on hand, the complainant has given report to the police soon after the first dead body of her child was traced on 16-07-02 and a perusal of police investigation reveals that the insured deceased died due to drowning in the reservoir while taking bath and no foul play was suspected by the police. The medical officer opined that the cause of death of deceased is asphyxia due to drowning. Therefore, the order of the National Commission relied on by the counsel of opposite party is not applicable to the facts of the case on hand.

                Further as already stated above the opposite party has not filed the terms and conditions of policy showing that the suicide is excluded in the terms and conditions of policy and that therefore, the insurer is not liable for the same.

                Therefore, in view of the facts and circumstances of case we are of the opinion, that the repudiation made by opposite party is not justified and that therefore, we find deficiency of service on the part of opposite party.  Hence, the opposite party is also liable to pay compensation to the complainant besides the insured amount.  Accordingly this issue is answered in favour of the complainant and against the opposite party.    

POINT No.2

                Complainant claimed Rs.3,71,000/- towards insured amount with subsequent interest and for compensation of Rs.10,000/- besides costs of Rs.1000/-.  Before numbering complaint, there was delay of 1594 days in representing complaint before this Forum for which the complainant filed IA 193/10 for condoning the delay in representing the complaint.  The said IA was allowed on 22-02-11, wherein it was ordered that the petitioner is not entitled to interest from 03-10-05 to 26-03-10 and the said order of the IA of this Forum became final.  Therefore, the complainant is not entitled for the interest on the insured amount for the said period.  The amounts claimed by the complainant towards compensation and costs are reasonable.  Therefore, awarding the insured amount of Rs.3,71,000/- with interest at 9% p.a. from the date of repudiation i.e., 07-01-04 till 02-10-05 and from 27-03-10 till realization and awarding of Rs.10,000/- towards compensation and Rs.1000/- towards costs would meet the ends of justice.  Accordingly this issue is answered in favour of the complainant and against the opposite party.

                In the result, the complaint is allowed in part in terms and indicated below:

1. The opposite party is hereby directed to pay an amount of Rs.3,71,000/- (Rupees three lakhs seventy one thousand only) to the complainant towards the insured amount with interest at 9% p.a. from the date of repudiation i.e., 07-01-04 to             02-10-05 and from 27-03-10 till realization.
2. The opposite party is further directed to pay an amount of Rs.10,000/- (Rupees ten thousand only) towards compensation to the complainant.
3. The opposite party is further directed to pay an amount of Rs.1000/- (Rupees one thousand only) towards costs of complaint.
4. The above orders shall be complied within a period of six weeks from the date of receipt of copy of this order, failing which the amounts ordered in clause 2 shall also carry interest at 9% p.a. till the date of realization.

Typed to my dictation by the Junior Steno, corrected by me and pronounced in the open Forum, this the 26^th day of August, 2011.    

       MEMBER                            MEMBER                            PRESIDENT

 APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant:         

For opposite party:

                                                                                             PRESIDENT