Andhra Pradesh

Nellore

CC/37/2015

Paleti Sreedevi, W/o Venkata Reddy - Complainant(s)

Versus

The Branch Manager, New India Assurance Co.Ltd - Opp.Party(s)

Basireddy Narayana

29 Mar 2016

ORDER

Date of Filing     :28-04-2015

                                                                                                Date of Disposal:29-03-2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Tuesday,  this the  29^th day of  March, 2016

 

PRESENT: Sri M. Subbarayudu Naidu, B.Com.,B.L.,LL.M.,President(FAC) and Member                             

                   Sri N.S. Kumara Swamy, B.Sc.,LL.B., Member.

 

C.C.No.37/2015

 

Paleti Sreedevi, W/o.Late Venkata Reddy,

16/3/1244,  2^nd lane, Haranathapuram, Nellore.                                  ..… Complainant        

 

                                                                           Vs.

The Branch Manager, New India Assurance Company Limited, Subedarpet, Nellore.                                                                           ..…Opposite party

                                                              .  

            This complaint coming on 24-03-2016  before us for hearing in the presence of                Sri Basireddy Narayana, advocate for the complainant and                                                       Sri S. Nageswara Rao, advocate for the opposite party  and having stood over for consideration till this day and this Forum made the following:

 

ORDER

(ORDER BY  Sri N.S. KUMARA SWAMY, MEMBER)

 

This complaint is filed under Section-12 of Consumer Protection Act, 1986 prays to direct the  opposite party to pay  an amount of Rs.1,00,000/- alongwith interest  at        18percent p.a. from the date of the death of the insured i.e. on 24-09-2013 till its payment, costs and such other further reliefs.

 

             2.        The brief averments of the complaint are that the husband of the complainant namely Paleti Venkata Reddy, who was the registered owner of motor cycle A.P.26AS7209 took  an policy of insurance with the  New India Assurance Company, who is the opposite party herein bearing policy No.62110131120100008000  for the period from 25-02-2013 to 24-02-2014 covering the risk of the vehicle including personal accident benefit by paying necessary premium also. During the policy was in force complainants husband Venkata Reddy met with an accident on 24-09-2013 and died due to injuries sustained to him and a case in crime No.320/2013 registered in IVth town P.S.  for the offence under Secion-304-A I.P.C. The complainant who is the nominee under the policy is entitled to receive death benefits under accident coverage.  The complainant submitted claim forms on 29-01-2014 to the opposite party  by enclosing copy of First Information Report, Post Mortem report, copy of Driving License and  Family Member Certificate and request them to settle the claim under personal accident benefit.  Inspite of several representations made to the opposite party  they fail to comply the demand.  Surprisingly, after lapse of 15 months, the opposite party sent a reply notice demanding the complainant to furnish the hospital records relating to the treatment taken by the  deceased.  In reply  to the notice,  the complainant sent a re-joinder reply  by intimating that  no necessity for furnishing the required documents as there is no way required for the claim.  The requirement of necessary information is  whether the complaint died due to accident and whether the said vehicle  insured with the company with accidental benefit.   Since, the claim is not settled by the  opposite party, the complainant prays to settle the claim of accidental benefit of Rs.1,00,000/- alongwith interest and costs for gross negligence  and deficiency in service on the part of opposite party.  Hence, the complaint.

 

            3.         The opposite party filed written version denying all the averments made in the complaint except that of admitted certain facts.  It is true that one Paleti Venkata Reddy, who is the husband of the complainant  a registered owner of motor cycle bearing    No.AP26AS7209.  Further, the opposite party contended that  the said vehicle insured under policy No.6211013112010008000 for the period 25-02-2013 to 24-02-2014  but denied the personal accident benefit accrued  to the deceased  as the deceased has not paid any necessary premium for  the said benefit.  The opposite party further contended that as per the policy the deceased paid Rs.407/- towards T.P. premium, Rs.480/- towards O.D. premium totaling Rs.887/- plus  Service Tax of Rs.110/-.  It is further contended that  there is a separate column compulsory P.A. covering for owner-cum-driver.  But no additional premium collected under personal accident coverage.  Since, the personal accident premium not collected in the policy it is very clear in the nominee column noted as N.A. which means not applicable.  Hence, the nominee column not shown as  N.A. since there is no coverage under the policy, the opposite party company is not liable to pay any compensation to the complainant under the personal accident benefit.  Further, the complainant is not a Consumer  as defined in the Act.   Further, the insurance company contended that  if the Hon’ble Forum comes to conclusion to pass any award, the liability of this opposite party is restricted to 6percent only as per the decisions of the Honorable Supreme Court of India.  As there is no coverage of accident under the policy, the complaint may be dismissed with costs.

 

 

 

4.         The points for determination would be:

 

1. Whether there is any deficiency in service on the part  of opposite party? If so, whether the complainant is entitled for the relief as prayed for in the complaint?
2. To what relief ?

 

5.         To substantiate the evidences on both sides, the complainant filed evidence on affidavit as P.W.1 and  the opposite party filed evidence on affidavit as R.W.1.   The complainant marked Exs.A1 to A11 and no exhibits marked on the opposite party  side. Both parties filed their written arguments. Heard oral arguments on both sides. Perused the entire material records.

 

6.         POINT No.1:It is an admitted fact that the complainant husband namely Paleti Venkata Reddy a registered owner of the motor cycle bearing No.AP26AS7209 insured his vehicle with the opposite party vide policy No.62110131120100008000 for the period from 25-02-2013 to 24-02-2014.  It is also admitted fact that the complainant submitted claim forms claiming the accidental benefit in the capacity of nominee of the deceased.

 

7.         The  allegation of the complainant are that she is the legally wedded wife of late Paleti Venkata Reddy. Soon after the death of her husband  in an accident, she being the nominee under the policy preferred a claim for payment of accidental benefit of                       Rs.1,00,000/- with interest by submitting the copies of FIR, Post Mortem report , Charge sheet, copy of driving license and family members certificate. But the opposite party demanded the complainant to submit the hospital records relating to the treatment taken by the deceased. In reply to their demand, the complainant replied on 04-04-2015 stating that there is no necessity to submit the hospital records as they are not relevant for settlement of claim.  Hence, the opposite party is liable to pay the claim amount with interest for their gross negligence and  deficiency in service.

 

8.         On the other hand, the opposite party resisted the claim and contented that the deceased insured did not pay the additional premium under Personal Accident Coverage in the policy taken by him. Since the above said Premium not collected by the insurance authorities(opposite parties), the nomination of the deceased not shown in the nomination column and assigned in the policy bond as Not Applicable. Hence treated as no coverage under the policy and as such the insurance company (opposite party) is not liable to pay any compensation to the claimant under Personal Accident Coverage.

 

            9.         The opposite party raised  an objection that complainant is not a Consumer.  In this context, we are of the opinion that the complainants  husband paid  the premium towards accidental coverage  under the insurance scheme to the opposite party. Consequent on the death of her husband, the complainant being class I legal heir of the deceased entitled to  receive the death benefits under Accidental Coverage Scheme from the opposite party.  As such the complainant is a Consumer under Consumer Protection Act.  Hence  the objection raised by the opposite party is not sustained.

 

10.       As seen from the policy schedule cum certificate of insurance, which is Ex.A11 wherein it is disclosed that under the column of limits of liability, the complainant’s husband paid Rs.100/- under compulsory excess i.e., in otherwords under accidental coverage but in the nomination column the name of the nominee not shown, for the reasons best known to the opposite party.

 

11.       The column of limit of liability derives that Limit of the amount the Companys Liability Under Section-II 1(i) in respect of any one accident as per  the Motor Vehicles Act, 1986 Limit of the amount of the Companys  Liability Under Section II 1(ii) in  respect of any one claim arising out of  one event Up to Rs.1,00,000/-

12.       It is an imaginary thing as to why opposite party did not mention the name of the nominee in the nomination column when the premium of Rs.100/- paid by the deceased under accidental coverage.  Except  self serving statement by way of affidavit on the point of non-payment of additional premium towards  accidental benefit and also non-mentioning the  name of nomination in the nomination column, the opposite party  did not establish its case by way of  documentary evidence placed such as filing of proposal form of insurance  and the copy of the  receipt of Rs.100/-.  Further, the terms and conditions of the policy also did not file  in this case for establishing its case. The main purpose of taking insurance policy by the insured  is to obtain financial protection and security to him and his family members. 

 

13.       In a case, the Hon’ble Apex Court  held in a case of Smt. Sarbati Devi, and Another Vs. Smt Usha Devi which was cited in a case Usha Vs. Harshal and others on 14^th May, 2002 of Patna High Court, it has been held by the Hon’ble Supreme Court  that A mere nomination made under Section 39 of the Insurance Act,1938 does not have the effect of conferring on the nominee any beneficial interest in the amount payable on the death of the assured. The nomination only indicates the hand which is authorizes to receive the amount, on the payment of which the insurer gets a valid discharge of  its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them. Infact, in the case before Supreme Court there was a nomination under Section 39 of the Insurance Act in favour of the nominee and in that context the section was interpreted by the Supreme Court. Here in this case, the facts are quite different and the case of the appellant is rather more weak. Under nomination the appellant is not enjoying any statutory protection.  The appellant could not show us that on the strength of which law the nominee is entitled to retain the money. Thus, we find that under Section-8 of the Hindu Succession Act, male hindu is the class1 heir. Therefore, under the provisions of the Hindu Succession Act, the son would be entitled to get the amount from the property of the father. In view of this settled position, the nominee has no interest in the amount due under the beneficial scheme of the Government. Thus, we find that the trial court in the amount was justified in holding that the status of the appellant is as of trustee but she would not have any interest in the amount due under the schemes and payable to the legal heirs of the deceased. In this case, respondent no1 is only dependant son of deceased, Therefore, under the law he is entitled to succeed the property of his father. Learned Counsel for appellant also could not shows us that what  else would be the status of a nominee under the general law, other than a trustee when the legal heirs of heirs of the deceased are available to claim the interest in others.            Under the facts and circumstances of the case, such a nomination shall be ineffective if the deceased is survived by his legal heirs. A nomination does not confer any rights but it only indicates the person who is entitled to collect the amount due. In the absence of any other provisions, the provisions of the Hindu Succession Act shall prevail and all other modes of succession shall be treated as superseded under the law as against the provisions of the Hindu Succession Act. Similar view was taken by the learned Single Judge of this Court in the above two cases cited. Thus ,it is clear that a nominee cannot claim any better right in presence of legal heir of class1. The sister being heir of class 2 may claim any right when heirs of class are not available. In view of the foregoing discussions, we do not find any life in this appeal. Accordingly, it fails and is hereby dismissed with no order as to costs.

14.       The above case is clearly applicable in the instant case. Assuming for a moment that nomination is necessary for payment of claim as per the contention of opposite party stated in para-6 of written arguments, it is to be observed firstly in this context whether the nominee is entitled to enjoy the property accrued from out of death benefits in the case of legal heirs of the deceased are available to claim the death benefits.

In this context, we are of the opinion that  when the legal heir of the deceased available to claim, the part of nomination shall be ineffective. A nomination does not confer any rights but it only indicates the person who is entitled to collect the amount due. In the absence of any other provisions, the provision of Hindu Succession Act shall prevail and all other modes of succession shall be treated as superseded under the law as against the provision of Hindu Succession Act. In the instant case, the wife being a  class I legal heir preferred a complaint for payment of accidental benefit of Rs.1,00,000/-  with interest for which she is entitled  for the same  eventhough nomination not shown in the policy schedule cum certificate of insurance. In view of the settled law  as envisaged in  Hindu Succession Act, the claim made by the complainant is justified.

            15.       Further, the record clinchingly shows that  deceased paid additional premium towards accidental coverage.  It is suffice to say that opposite party has miserably failed to substantiate its defense and plea taken by the opposite party is not justifiable one.  The said attitude on the part of opposite party indicates deficiency in service  to the extent of  non-payment of accidental coverage of Rs.1,00,000/-.  Hence, the complaint is  legally wedded wife and also  class 1 legal heir of the deceased is entitled to receive  the  death claim towards accidental coverage of Rs.1,00,000/- with interest at 9percent p.a. besides the costs of Rs.3,000/-.  Accordingly, the point No.1 is answered.

            16.       POINT No.2:  In  the result, the complaint is allowed in part, directing the opposite party to pay an amount of Rs.1,00,000/- (Rupees one lakh only) with interest at 9percent p.a.  from the date of complaint i.e., on 28-04-2015 to till the date of realization besides the costs of Rs.3,000/- (Rupees three thousand only).

Typed to the dictation to the Stenographer, pronounced by us in the open  Forum, this the  29^th day of  March, 2016.

 

 

                 Sd/-                                                                                            Sd/-

           MEMBER                                                                               PRESIDENT(F.A.C.)

 

                                                APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1-

03-09-2015

Smt Paleti Sreedevi, W/o.Late Venkata Reddy,  Nellore (Chief Affidavit filed)

 

Witnesses Examined for the opposite party

 

R.W.1-

21-09-2015

Sri M. Venkateswarlu, S/o.Raghavulu, Working as Divisional Manger, Ongole (Affidavit filed).

 

                             EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1-	24-09-2013	Photostat copies of  First Information Report No.320/2013 in Nellore IV Town Police Station,  statement of complainant dated 24-09-2013 and photocopy of MLC Intimation  from Narayana General Hospital, Nellore to the Sub-Inspector of Police, Rural Police Station, Nellore.
Ex.A2-		Photostat copy of Post-Mortem Certificate  No.9702 in favour of  complainant’s husband  issued by Civil Assistant Surgeon, D.S.R.District Hospital, Sri Potti Sriramulu Nellore District.
Ex.A3-	25-02-1999	Photostat copy of  Driving Licence, Form-6 in the name of  P. Venkata Reddy.
Ex.A4-	29-01-2014	Photostat copy of  letter from complainant to the opposite party.
Ex.A5-	23-08-2014	Photostat copy of letter from complainant to the  opposite party alongwith  registered post receipt dated 06-02-2015.
Ex.A6-	22-11-2014	Legal notice from  complainant’s advocate to the  opposite party alongwith  registered post receipt.
Ex.A7-		One postal acknowledgement  from  complainant’s advocate  to the  opposite party.
Ex.A8-	24-02-2015	Reply from opposite party’s advocate N. Kodanda Rami Reddy to the complainant’s advocate.
Ex.A9-	04-04-2015	Legal notice from  complainant’s advocate to the  opposite party’s advocate Sri N. Kodanda Rami Reddy alongwith one registered post receipt.
Ex.A10-	06-04-2015	One postal acknowledgement  sent by complainant’s advocate received from opposite party’s advocate Sri N. Kodanda Rami Reddy.
Ex.A11-	27-01-2014	Photostat copy of Policy Schedule Cum Certificate of Insurance  in favour of  Venkata Reddy issued by the  opposite party.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTY

-Nil-

                                                                                      

                                                                                                                       Id/-

                                                                                                         PRESIDENT(F.A.C.)

 

Copies to:

 

1.	Sri Basireddy Narayana, Advocate, 23-3-245, 1st street, Sodan Nagar, Nellore-3.
2.	Sri S. Nageswara Rao, Advocate, Nellore.

 

Date when free copy was issued: