IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA

Dated this the 9^th day of March, 2010

Present : Sri. Jacob Stephen (President)

Smt. C. Lathika Bhai (Member)

Sri. N. Premkumar (Member)

C.C.No.52/07

Between:

1. Bhadran, aged 72 years,

Amrita Bhavan,

Madamon, R-Perunadu Village,

Vadasserikkara.

(By Adv. M.S.Rejani)

Addl.2. Remani, Amrutha Bhavan,

              Madamon Muri,

              R-Perunadu.

(By Adv. Sreekumar. K)                                                                  …..      Complainant

And:

1. The Divisional Manager,

New India Assurance Co. Ltd.,

Divisional Office,

Thiruvananthapuram

2. The Branch Manager,

New India Assurance Co. Ltd.,

Branch Office, Pathanamthitta.

(By Adv. Jacob Varghese. K)

Addl.3.  JyothiLekshmi Shylesh,

               Gopika Bhavanam,

               Elanthoor.

Addl.4. Parvathy Shylesh,  -do.  –do.

Addl.5. Karthika Shylesh,   -do.  –do.                  

(By Adv. Nishad. L.S)                                                                      …..      Opposite parties.

O R D E R

Smt. C. Lathika Bhai (Member):

                        The complainants have filed this complaint for getting a relief against the opposite parties 1 and 2 from the Forum.

                        2. The facts of the complaint in brief are as follows:  The first complainant is the father and the additional second complainant is the mother of deceased B. Shylesh.  The additional opposite parties 3 to 5 are the widow of B. Shylesh and their minor daughters. Shylesh was employed at Dubai and he came for leave in the year 2005. On 13.4.05 he died in a road accident occurred at Mannarakulanji, Pathanamthitta.  The deceased was the holder of ‘Pravasi Bharathiya Bima Yojana Policy’ (Policy No.760500/48/04/17/00000985) taken from the 1^st and 2^nd opposite party valid from 11.8.04 to 10.8.06.  As per the terms and conditions of the policy, if the insured person sustained any bodily injury resulting solely and directly from accident and such injury shall be the direct cause of death, the opposite parties are liable to pay the insured amount of Rs.2,60,000/- to the nominee.  The 1^st complainant is the nominee in the policy who filed a claim before the 1^st opposite party for getting the insured amount.  But the opposite parties have rejected the claim stating that they are liable to pay the insured sum only if the insured met with an accident during his stay at abroad. The opposite parties rejected the claim without valid reason.  The insured came to India on leave and he has to return to gulf by next month and the accident occurred during that time and he died.  Therefore the complainants are entitled to get the insured amount of their deceased son as per the policy condition.  Hence they have filed this complaint against the opposite parties for getting an order for directing the 1^st and 2^nd opposite parties to pay the insured sum with interest along with compensation and cost.  The complainants pray for granting the reliefs.

            3. The 2^nd opposite party has filed a version on behalf of the 1^st opposite party also stating the following contentions:  These opposite parties have admitted the issuance of Bharathiya Bhima Yojana Policy and its validity. This policy is formulated with an object to provide coverage to non-resident Indians during their stay at abroad and it does not cover if the insured person died in India.  As the policy does not cover death or bodily injury sustained to the insured while he is in India, the opposite parties have repudiated the claim rightly and there is no deficiency in service from the part of them and they pray for the dismissal of the complaint with their cost.

            4. The opposite parties 3 to 5 filed a common version stating the following:  These opposite parties also supports the claim of the complainant regarding the liability of the 1^st and 2^nd opposite party to pay the claim amount.  These opposite parties are also entitled to get the claim amount as the legal heirs of the deceased B. Shylesh.  Since deceased Shylesh died intestate the right of the legal heirs of the insured may be governed in accordance with the law of succession and this opposite parties are entitled to get the share of the insured amount as per Indian Succession Act.  In the circumstances, the opposite parties 3 to 5 pray for allowing their share in the claim. 

            5. The points for consideration in this complaint are:-

(1)   Whether the complaint is maintainable before the Forum?

(2)   Whether the complainant is entitled to get a relief as prayed for

in the complaint?

(3)   Relief & Cost?

           6. The evidence in this case consists of the oral evidence of the 1^st complainant as PW1 and Ext.A1 to A7 from the side of the complainants and for the opposite parties the Asst. Manager of Pathanamthitta has adduced oral evidence as DW1 and Ext.B1 marked.  After closure of the evidence, both sides heard.

            7. Point Nos.1 to 3:-  The complainant’s case is that their diseased son B. Shylesh had taken a ‘Pravasi Bima Bharathiya Yojana policy’ from the 1^st and 2^nd opposite party having validity from 11.8.04 to 10.8.06.  During the coverage period on 13.4.05 the insured met with an accident and died.  The 1^st complainant, being nominee in the policy had filed a claim before the 2^nd opposite party for getting the insured amount of the policy taken by his son.  But the opposite parties have repudiated the claim on the ground that the accidental death was occurred in India.  The policy offers payment to the nominee of the insured in case of death of the insured while his stay at abroad. Hence they are not liable to pay the insured amount.  According to the complainants the insured was working abroad and at the time of death he was on leave.  Therefore they are entitled to get the claim amount and hence they filed this complaint for getting the reliefs sought for in the complaint.

            8. In order to prove the complainant’s case, complainant adduced oral evidence as PW1 and Ext.A1 to A7 were marked.  Ext.A1 is the copy of FIR in Crime No.272/05 dated 14.4.05 prepared by the Pathanamthitta police.  Ext.A2 is the copy of the charge sheet in Crime No.272/05.  Ext.A3 is the photocopy of the visiting card in the name of B. Shylesh at Dubai.  Ext.A4 is the notice issued by the opposite parties for the renewal of the policy taken by their deceased son.  Ext.A5 is the copy of passport in the name of the insured.  Ext.A6 and A6(a) are the Pravasi Bime Yojana Policy Certificates and its conditions.  Ext.A7 is the original of the passport in the name of the deceased insured.  Counsel for the opposite parties cross-examined PW1.

            9. The 1^st and 2^nd opposite parties contended that the insured person died in an accident on 13.4.05 while he was in India.  The ‘Pravasi Bharathiya Bima Yojana Policy’ is formulated with an object to provide coverage to non-resident Indians during their stay at abroad and it does not cover while they are in India and the repudiation is rightly and there is no deficiency in service in processing the claim.

            10. In order to prove the opposite parties’ contentions, 2^nd opposite party adduced oral evidence as DW1 and Ext.B1 marked.  Ext.B1 is the terms and conditions of the Ext.A4 ‘Pravasi Bharatiya Bima Yojana Policy’.  Complainant’s counsel cross-examined DW1.

            11. The opposite parties 3 to 5 are the legal heirs of the insured. They contended that they are also entitled to get the claim amount being the legal heirs of the deceased B. Shylesh according to the Indian Succession Act.  There is no oral or documentary evidence from this opposite parties.

            12. On going through the evidences in this case, the materials on records clearly shows that the insured B. Shylesh died due to the accident occurred in India while he was on leave during his employment at abroad.  The death was during the coverage period of the Ext.A4 policy.  The opposite parties have admitted the policy and its coverage.  According to them, as per Ext.B1 policy conditions, the policy provided coverage only to non-resident Indians during their stay at abroad and it does not cover while they are in India.  It is pertinent to note that the exclusion clause in Ext.B1 policy conditions does not mention the persons insured under this policy who came to India on leave is excluded from the benefits of this policy during the period of his stay in India.  The spirit and object of the pravasi policies are for the benefits of the non-resident Indians who sustain injuries or death during his foreign employment.  The validity of the policy is for 2 years and the premium is fixed.  There is no mention in the policy conditions regarding the period of stay outside the foreign country or with regard to the effect of pro-rata premium for the said period.  Otherwise opposite parties does not enhance the policy period or reduce the premium amount for the said period.  So the policy is valid and effective for 2 years irrespective of the place of stay of the insured. There is no dispute that the complainant’s deceased son B.Shylesh had taken a ‘Pravasi Bharathiya Bima Yojana Policy’ from 1^st opposite party and during its validity he met with an accident and died in India.  The diseased insured was employed at abroad and he came to India on leave and he had to return to Dubai after his leave.  The terms and condition s of the policy did not mention the status of the non-resident Indians who came to India on leave.  Moreover the policy conditions did not say the policy does not cover while the insured is in India.  In the absence of any specific clause in this connection, the non-resident Indians who is on leave can be considered as a ‘Pravasi Bharathiyan’ and his accident is also covered under the ‘Pravasi Bharathiya Bima Yojana Policy’ irrespective of his place of stay during the policy period if he is working abroad.  The contention of the opposite party that they are liable to pay the insured sum only if the insured met with an accident during his stay at abroad is not sustainable.  The repudiation of the claim on this ground is illegal and unjustifiable.

            13. At the time of cross-examination of DW1, the complainant’s counsel put a questions as follows:-  “\n§eohv FSp¯v hntZi¯v t]mbm k#198;okn DÅXmbn«mtWm consider sN¿p¶Xv?  His answer is “AsX“.  hntZi¯v tPmenbpÅ B\m«n eohn\v h¶m Non-Resident Indian Bbn IW¡m¡pw (Q &A).  DW1 admitted that the employees came to India are considered as non-resident Indians.  In the view of the matter, our considered opinion is that the deceased insured B. Shylesh is a “Pravasi Bharathiyan” at the time of his accidental death and he is covered under the Ext.A4 policy and the legal heirs are entitled to get the insured amount from the opposite parties.  In the circumstances, the contention of the opposite party that the policy does not cover while the accident occurred in India is not sustainable.  Therefore the repudiation of the complainant’s claim is a clear deficiency in service, which caused mental agony and other inconveniences to the complainant.  On the basis of the above discussions, we find a clear deficiency in service from the part of opposite parties and the legal heirs are entitled to get the insured amount along with other reliefs from the opposite parties 1 and 2.

            14. The opposite parties 2 to 5 contended that they are also the legal heirs of the deceased B. Shylesh, which is not disputed by any party.  As the legal heirs of the insured, they are also entitled to get a share of the insured amount as per the provisions of the Indian Succession Act.  As per sub Sec.’6’ of Sec.39 of Insurance Act confers the right to nominee to receive the insured amount but does not provide the title or ownership of that money.  The nomination made under Sec.39 of the Act indicates the hand, which is authorized to receive the insured amount at the time of discharging the liability of the insurer.  That amount can be claimed by the legal heirs of the insured in accordance with the law of succession governing them.  Hence the opposite parties 3 to 5 the widow and minor daughters of the deceased insured are entitled to get their share from the insured amount as per the provisions of Indian Succession Act.

            15. In this complaint, complainant’s claim Rs.2,60,000/- as the sum assured.  Opposite parties 1 and 2 in their version, it is stated that the sum assured is Rs.2,50,000.  But on a perusal of the policy certificate and the policy condition, it is seen that the sum assured to the nominees of the deceased is only Rs.2,00,000/-.  So the claim amount allowable in this case is only Rs.2,00,000/- and the balance of amount of Rs.50,000/- and Rs.10,000/- seen in the policy certificate is not allowable in the nature and circumstances of this case.

            16. In the result, the complaint is allowed thereby, the first and second opposite parties are directed to pay an amount of Rs.2,00,000/- (Rupees Two lakhs only) with interest @ 8% per annum from the date of filing of this complaint till this date along with Rs.5,000/- (Rupees Five thousand only) as compensation and Rs.2,500/- (Rupees Two thousand five hundred only) as cost to the legal heirs of the deceased as per Indian Succession Act. The opposite parties are directed to comply this order within two months from the date of receipt of this order, failing which an interest at the rate of 9% per annum will follow for the whole amount from today, till the whole payment.

            Declared in the Open Forum on this the 9^th day of March, 2010.

                                                                                                                     (Sd/-)

                                                                                                            C. Lathika Bhai,

                                                                                                                  (Member)                                                

Sri. Jacob Stephen (President)                    :           (Sd/-)

Sri. N. Premkumar (Member)                    :           (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1    :           P.N.Bhadran

Exhibits marked on the side of the complainant:

A1       :            Photocopy of FIR dated 14.4.05 in Crime No.272/05.

A2       :            Photocopy of the charge sheet in Crime No.272/05. 

A3       :            Photocopy of the visiting card in the name of B. Shylesh at Dubai.

A4       :           Notice issued by the opposite parties for the renewal of the policy.

A5       :           Copy of passport.

A6 and A6(a): Pravasi Bima Yojana Policy Certificates and its conditions.

A7       :           Original of the passport in the name of the deceased insured.

Witness examined on the side of the opposite parties:

DW1   :           S.K. Swamy.

Exhibits marked on the side of the opposite parties:

B1        :           Terms and conditions of Ext.A4 ‘Pravasi Bharatiya Bima Yojana  

                         Policy’.

                                                                                                                        (By Order)

                                                                                                             Senior Superintendent

Copy to:  (1)  Bhadran, Amrita Bhavan, Madamon, R-Perunadu Village,

            Vadasserikkara.

                (2)   Remani, Amrutha Bhavan, Madamon Muri, R-Perunadu.

(3)    The Divisional Manager, New India Assurance Co. Ltd., Divisional Office,

           Thiruvananthapuram

(4)    The Branch Manager, New India Assurance Co. Ltd., Branch Office,   

       Pathanamthitta.

(5)    JyothiLekshmi Shylesh, Gopika Bhavanam, Elanthoor.

(6)    The stock file.