:: O R D E R ::
(BY Sri. Ganesh Jadhav, President)
1. THIS IS A COMPLAINT FILED U/SEC.12 OF Consumer Protection Act, 1986.
2. The brief facts set out in the complaint are that deceased N. Rakesh Goud, was the son of complainants 1 and 2 and the husband of complainant No.3, and they are the permanent residents of Ashoknagar, Kamareddy, Dist. Nizamabad
The deceased N.Rakesh Goud was the holder of Individual Personal Accident Policy Vide Policy No. 050700/42/10/01/00000313 valid from 16-8-2010 to 15-8-2011. He died on 3-10-2010 at about 9.00pm while on the way to Kamareddy as in the opposite direction several vehicle with fully toured head were coming due to which he lost control over his vehicle and fell down near the turning of Maisamma temple situated at outskirts of Ugrawai village, due to which he sustained serious grievous injuries to head and died on the spot and the pillion rider Karri Shiva Kumar received injuries. On receiving the information the complainant No.1 herein lodged a complaint before the police Devanpally in which PS limits the accident occurred. On the receipt of the complaint the police Devanpally registered a case in FIR No. 210/2010 dt:4-10-2010 U/s 304A and 337 of IPC Upon which dead body of N. Rakesh Goud sent for postmortem wherein detailed examination was done by duty doctor who opined that the death was due to Hemorrhage, shock and Head injury.
The above said facts were intimated to opposite parties and also submitted all relevant documents which are needed for claiming of compensation by the complainant No.1, and also started visiting the opposite party’s office and corresponded with the opposite party but of no use and as a bolt from the opposite party sent letter by creating their own opinion that the deceased in a state of intoxication and due to which only the accident took place. But the surprising thing is that the doctor being a technical personal, there is not even a simple word to show that the deceased Rakesh Goud consumed the liquor and if at all it is truth should be detected by the duty doctor in PME report, but it is not so then the reason for repudiation of the claim is erroneous, fictitious and have no value.
The complainant Nos. 1 and 2 being in the parents and the complainant No.3 being in the wife of the deceased are entitled to claim the Policy amount and opposite party is liable to pay the said policy amount of Rs. 2,00,000/- with interest at the rate of 24% per annum and also damages Rs. 50,000/- Hence this complaint and they prayed to allow the same.
(3) The opposite party ( United India Insurance Company ) filed its written statement denying the relationships of the complainants with the deceased N. Rakesh Goud and put the complainants to strict proof of the same. The issuance of the Individual Personal Accident Policy in favour of the deceased vide policy bearing No. 050700/42/10/01/00000313 valid from 16-08-2010 to 15-08-2011 and the liability of this opposite party is as per the terms and conditions of the said insurance policy are admitted. It is denied that the deceased died on 3-10-2010 at 9.00 Pm while on the way to Kamareddy from Machareddy on his motor cycle and on the way when he reached near turning Maisamma Temple in out skirts of Ugrawai village he lost control over his vehicle due to focus of lights of opposite coming vehicle due to which the motor cycle went of the road as a result of which he fell down from the motor cycle and sustained grievous injuries to head and died on the spot.
The opposite party specifically submitted that as per the contents of Final Report filed by the Police Devanpally in Cr. No. 210/2010 after due investigation, in the matter, the deceased Rakesh goud consumed liquor at Machareddy along with his friends from 10.00am to 8.00pm and went to the house of his friend Shivkumar at bout 9.00pm at Machareddy and they both started on the motor cycle bearing No. AP 25 K 6199 from Machareddy towards Kamareddy being driven by the deceased himself in intoxication condition and on the way near Maisamma Temple in the limits of Ugrawai village, the deceased lost control over his motor cycle due to the light focus of opposite coming vehicles due to which the motor cycle went of the road as he was in drunken condition and both, the deceased and his friend fell down from the motor cycle and sustained injuries and the deceased died on the spot. Since the deceased who was responsible for the accident died, the police closed the case as action abetted. Thus according to the opposite party the accident occurred as the deceased was in intoxication condition which lead to his death and it is not an accidental death, therefore the opposite party is not liable for any compensation as the Insurance policy does not cover the risk of a person if he is in intoxication at the time of accident. As the deceased violated the terms and conditions of the insurance policy, this opposite party is not liable for any compensation and rightly rejected the claim of the complainants as the death of the deceased is not accidental and it is due to intoxication at the time of accident.
The opposite party further stated that the contention of the complainant that the doctor who conducted autopsy over the dead body of the deceased did not mention in his PME report that deceased consumed liquor is baseless. The police after examining the injured person who was traveling as pillion rider on the motor cycle of the deceased at the time accident and his friends and family members and basing upon their statements filed final report that the deceased consumed liquor at Machareddy at 10.00 am to 8.00pm along with his friends and started driving his motor cycle in intoxication condition due which he lost control over his motor cycle and fell down from it which resulted in his death and this was not challenged by the complainants before the concerned police authorities as it is the fact which lead to the death of deceased. If at all the finding the police in their final report is wrong, definitely, the complainants would have challenged the same before the competent authorities. But the complainant suppressed the real facts behind the claim and falsely claiming compensation. Therefore the opposite party is not liable for any compensation.
It is further stated that the complainants have no cause of action against this opposite party and all the facts stated there in are false and created for the purpose of filing this false complaint and prayed to dismiss the complaint against this opposite party with costs in the interest of the justice.
(4) During the enquiry, the complainant No.1 N. Ramchander Goud filed his Affidavit in lieu of evidence as PW1 and got marked Ex.A1 to A11 on behalf of complainants.
5. On behalf of opposite party its Deputy Manager Nanchary Narsaiah filed his Affidavit in lieu of evidence as RW1 and got marked Ex.B1 ( Individual Personal Accident Policy).
6. Heard arguments of both sides.
7. The points for consideration are.
- Whether there is deficiency in service on the part of opposite party in repudiating the claim of the complainants ?
- Whether the complainants are entitled for any reliefs as prayed for?
- To what relief ?
8. Point No.1 & 2 : It is not in dispute that the Individual Personal Accident policy bearing No. 050700/42/10/01/00000313 for a period from 10:00 hrs of 16-8-2010 to midnight of 15-8-2011 was issued by Opposite party in favour of deceased N. Rakesh Goud. His death on 3-10-2010 is also not in dispute.
The claim of the complainants was repudiated by opposite party on the ground that the deceased was in intoxication condition which lead to his death and it was not an accidental death. The complainants alleged deficiency in service and unfair trade practice on the part of opposite party in repudiating their claim on the ground that the insured died under influence of alcohol as it is not a fundamental breach to repudiate the claim. In order to prove the version of the complainants they filed the affidavit of complainant No.1 and marked Ex.A1 to A11 documents.
9. The opposite party contended that mere issuance of policy is not a ground for settling the claim unless other mandatory requirements are satisfied and received upon ( Ex. A7 ) the final report filed by the SI of police Devanpally dated 31-12-2010 which disclosed that the insured consumed liquor and expired due to lost his control over his motor cycle. Therefore, according to the Opposite party the deceased violated the terms and conditions of the insurance policy and thereby the company is not liable for any compensation and rightly repudiated the claim of the complainants under policy and there is no deficiency in their service. To substantiate the version of opposite party it filed the affidavit of its Deputy Manager Nanchary Narsaiah and got marked Ex.B1 ( The Individual Personal Accident Policy Valid from 16-8-2010 to 15-8-2011).
In the present case the opposite party simply relied on the final opinion report ( Ex.A7 ) of Sub Inspector of police Devanpally and basing on this report the claim of complainants is repudiated by it on the ground that deceased was in intoxication condition. The insurance company has to prove that insured was under the influence of alcohol and was intoxicated. As seen from record the insurance company has not appointed any investigator nor investigated as to the circumstances under which accident took place. Onus is on the insurance company to produce some evidence. If at all the deceased had consumed alcohol as contended by the opposite party, the doctor would have traced the contents of alcohol during the post mortem examination. The PME report Ex. A6 of the deceased N. Rakesh Goud shows the death of the deceased is due to “Hemorrhage shock due to head injury”. It does not disclose that there was any contents of alcohol. Therefore we are of the considered opinion that PME Report Ex. A6 is material evidence than Ex. A7, the Final Report. The opposite party has not able to produce any credible evidence to repudiate the claim that the deceased N. Rakesh Goud was intoxicated which resulted in his death as observed by the Hon’ble National Commission in a case between “National Insurance Company Ltd., V/s. Some Devi and others” reported in CPR June 2012 part at page 467. Therefore the contention of the opposite party in repudiating the claim is found incorrect and thereby we found that there is a deficiency of service on the part of the opposite party.
In view of the aforesaid discussions and findings, the opposite party is liable to pay the policy amount of Rs. 2,00,000/- under Ex. A10 with 9% interest from the date of repudiation i.e. 21-6-2011 till the date of realization and compensation of Rs.10,000/- for the deficiency of service with costs of RS. 2,000/-
The complaint is filed by the complainants 1 and 2 who are the parents and the complainant No.3 who is the wife of the deceased N. Rakesh Goud who was the policy holder under Ex. A10. Hence all the complainants are entitled for the amount of policy Ex.A10, and the compensation and costs equally
10. In the result the complaint is allowed partly as under.
- The opposite party is directed to deposit an amount of Rs. 2,00,000/- ( Rupees Two lakhs only ) with 9% interest per annum towards claim under Individual Personal Accident Policy (Ex. A10 )(Ex. B1) from the date of repudiation i.e. 21-6-2011 till the date of realization.
- The Opposite party is also directed to deposit Rs. 10,000/- ( Rupees ten thousand only ) towards compensation for the deficiency of service .
- The opposite party is further directed to deposit Rs. 2,000/- ( Rupees two thousand only ) towards costs of the proceedings.
- The opposite party is further directed to comply with the above 1 to 3 directions within one month from the date of receipt of the order and after compliance of above said 1 to 3 directions by the opposite party, the complainants 1 to 3 are equally entitled for the said deposit amount a and they are hereby directed to withdraw the amount as per their respectively share, by filing their individual cheque petitions.
Typed to my dictation pronounced by us in the open Forum hall on this the 18th day of February 2013.
