Andhra Pradesh

Chittoor-II at triputi

CC/69/2013

K.Munaswamy H/o.deceased K.Nagarathnamma - Complainant(s)

Versus

The Executive Officer T.T.D. - Opp.Party(s)

C.V.Chalapathi

27 Dec 2017

ORDER

Date of first filing:06.09.2013

Date of first disposal: 19.01.2015

Matter remanded and case restored on :05.09.2017

Date of disposal :27.12.2017 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

WEDNESDAY THE TWENTY SEVENTH DAY OF DECEMBER, TWO THOUSAND AND SEVENTEEN

 

C.C.No.69/2013

 

Between

 

1.         K.Munaswamy,

            H/o. deceased K.Nagarathnamma,

 

2.         K.Murali,

            S/o. K.Munaswamy,

 

3.         K.Ravi Chandra,

            S/o. K.Munaswamy,

 

All the above are residents of

 

D.No.13-6-63, Kothapeta,

Palamaneru,

Chittoor District.                                                                              … Complainants

 

 

 

And

 

 

1.         The Executive Officer /

            The Additional Financial Adviser &

            Chief Accounts Officer,

            T.T.Devasthanams,

            Administrative Building,

            Tirupati.

 

2.         Senior Divisional Manager,

            United India Insurance Co. Ltd.,

            D.No. 7 & 8, Sridevi Complex,

            Tilak Road,

            Tirupati.                                                                                 …  Opposite parties.

 

 

            This complaint coming before us for final hearing on 14.12.17 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.C.V.Chalapathi, counsel for the complainants, and Sri.D.Jayachandra, counsel for the opposite party No.1, and Sri.Prem Kumar Karanam, counsel for the opposite party No.2, and  having stood over till this day for consideration, this Forum makes the following:-

 

 

This is a remanded case and restored for fresh disposal on 05.09.2017
ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

 

            This complaint is filed under Section-12 of C.P.Act 1986, by the complainants against the opposite parties 1 and 2 claiming Rs.2,00,000/- towards compensation with interest at 24% p.a. and Rs.10,000/- towards deficiency in service and for costs of the litigation.

            2. The averments of the complaint in brief are:- That on 23.10.2012 at about 4.30 a.m., an accident was occurred in front of 3^rd choultry of T.T.Devasthanam, Tirupati, due to negligent driving of the jeep bearing No.AP-03-V9417, by its driver A.Babu @ Hans. At the time of accident, the said jeep was run over the pilgrim by name K.Nagarathnamma, W/o. 1^st complainant and mother of 2^nd and                         3^rd complainants. The said Nagarathnamma and her sister Chittemma together came to the said choultry, to go to Tirumala Chakrasnanam and while she was sleeping, the accident took place. Immediately the jeep driver himself took the injured Nagarathnamma to SVRRGG hospital and got her admitted. Later the injured died at about 11.30 a.m. on the same day i.e. on 23.10.2012 itself while undergoing treatment. In this connection, a case in Crime No.114/2012 was registered in Traffic Police Station, Tirupati, on the basis of Ex.A1 FIR. A charge sheet was also filed in C.C.No.08/2013 on the file of IV Additional Judicial First Class Magistrate, Tirupati.

            3. The Tirumala Tirupati Devasthanam provided compensation of Rs.2,00,000/- to the victims, who dies or sustain injuries in motor accidents within the premises of TTD in Tirupati or anywhere in India under “Public Liability Insurance Policy” for which TTD insured the pilgrims under “Public Liability Insurance Policy”. The deceased Nagarathnamma, wife of 1^st complainant being the pilgrim died in the accident that occurred in front of 3^rd choultry of TTD in Tirupati, the complainants being husband and sons of deceased Nagarathnamma, entitled to compensation and the complainants filed claim application on 01.11.2012 through registered post to the Additional Financial Advisor and Chief Accounts Officer (under Executive Officer), T.T.Devasthanam, Tirupati, and the same was not responded by the concerned. Therefore, the complainants also got issued reminder requesting for release of compensation but the T.T.Devasthanam authorities and 2^nd opposite party did not respond. Hence the complaint.

            4.  The opposite party No.1 filed written version along with the affidavit of Chief Accounts Officer, TTD, contending that the complainants have not hired any services from TTD, as such they are not the consumers as defined under the Act. Therefore, this Forum has no jurisdiction to entertain the complaint. Opposite party No.1 denied the allegations made in para.1 of the complaint including the accident death of Nagarathnamma and registering of case in C.C.No.08/2013 on the file of     IV Additional Junior Civil Judge, Tirupati, and further contended that TTD made a Public Liability Insurance policy with opposite party No.2, who will provide compensation to the victims, whoever dies or sustain injuries in motor accident in Tirumala / Tirupati, in the interest of pilgrims, who visits the holy hills. The said policy covers for stampede, fire accident, including death or hospitalization due to electrical hazards, terrorism, building collapse, food poisoning, animal attack / bites, leakage of gases, bomb blast, earth quake and other natural calamities, death due to drowning in pushkarani and other wells in and around TTD temples, lakes strains and in Dams in Tirumala / Tirupati and other places and meeting medical expenses to the pilgrims for all the above said risks. The alleged accident occurred in front of            3^rd choultry, Tirupati, it is no way connected to TTD.  As per the complaint, the deceased was sleeping on the road in front of the choultry. The claim made by the complainants on 01.11.2012 was forwarded to opposite party No.2 for taking necessary action. TTD authorities have given reminders to opposite party No.2 on 11.03.2013, 20.05.2013, 11.07.2013 and 16.09.2013, duly marking a copy to the complainants counsel. But the opposite party No.2 expressed their inability to settle the claim on the ground that the insured has to establish negligence on the part of the opposite party No.2. There is no deficiency in service on the part of opposite party No.1. If any compensation is to be awarded, it should be paid by opposite party No.2. Opposite party No.1 forwarded the claim to opposite party No.2 for taking necessary action from their side, and prays the Forum to dismiss the claim against opposite party No.1 with costs.

            5.  The opposite party No.2 filed written version along with affidavit of the Divisional Manager, denying parawise allegations in the complaint and further contended that opposite party No.1 has taken insurance policy bearing No.051200/46/12/37/00000054 Public Liability Non-Industrial Risk Policy. The said policy indemnifies the risk of the pilgrims of opposite party No.1 only. It covers the risk of the pilgrims of stampede, fire accident, including death or hospitalization due to electrical hazards, terrorism, building collapse, food poisoning, animal attack / bites, leakage of gases, bomb blast, earth quake and other natural calamities, death due to drowning in pushkarani and other wells in and around TTD temples, lakes, strains and in Dams in Tirumala / Tirupati and other places and meeting medical expenses to the pilgrims for all the above said risks. But in the present case, no negligence on the part of the opposite party No.1 and no such accident was occurred to indemnify opposite party No.1 by opposite party No.2. As per the complaint, the deceased was slept on the road before 3^rd choultry of T.T.Devasthanam and a jeep ran over on her due to which she sustained injuries and died in the hospital. The policy shall not cover risk of the deceased. That the complaint is not maintainable, as the complainants are not consumers within the definition of Section-2(i)(d) of the Act. There is no negligence on the part of the opposite parties. The policy applicable only in respect of the above referred categories of incidents and not for any other incidents and prays the Forum to dismiss the complaint against opposite party No.2 with costs.

            6. The complainants and opposite parties 1 and 2 filed their respective chief affidavits and written arguments as well. Exs.A1 to A9 were marked on behalf of complainants and Exs.B1 to B3 were marked on behalf of opposite party No.2.

            7. Now the points for consideration are:-

            (i).  Whether accident took place within the premises of T.T.Devasthanam?

            (ii).  Whether the complainants are consumers within the meaning of Section-

                    2(i)(d) of C.P.Act 1986?

            (iii)  Whether the complainants are entitled to compensation as prayed for?

            (iv)   To what relief?

            8.  Point No.(i):-  In order to establish whether the accident took place within the premises of TTD, Exs.A1 and A8 coupled with affidavit of P.W.1                       (1^st complainant) as well as the pleadings on behalf of the opposite parties shows that, the accident was occurred within the premises of 3^rd choultry i.e. nearby portico of the 3^rd choultry. The entrance of the 3^rd choultry was far away from the place of accident. After entering into the premises, the deceased Nagarathnamma slept beside the portico of the 3^rd choultry, as such it can be fairly said that the accident was occurred within the premises of 3^rd choultry, which belongs to TTD. Accordingly this point is answered.

            9.  Point No.(ii):-  to answer this point, it is pertinent to say that opposite party No.1 i.e. TTD has taken a policy from opposite party No.2, which is termed as Public Liability Insurance Policy, only insuring the pilgrims. There is no dispute that the policy was in force on the date of accident. The pleadings of both the parties and the evidence affidavits as well clearly establish that the deceased Nagarathnamma was a pilgrim, as such the policy i.e. the Public Liability Insurance Policy will cover the risks of all the pilgrims, who visits the holy temple at Tirumala or who came to visit the holy temple and stayed in the choultries of T.T.Devasthanam. The opposite party No.2 is collecting premium from opposite party No.1, which covers the risk of the pilgrims. The categories that were covered under the policy are specifically mentioned in Ex.B3 as well as the pleadings of opposite party No.1 and opposite party No.2 also i.e. the details are as hereunder:

“stampede, fire accident including death or hospitalization and electrical hazards, terrorism, building collapse, food poisoning, animal attack / bites, leakage of gasses, bomb blasts, earthquake and natural  calamities, death due to drowning in puskarani and other wells in and around TTD temples, lakes strains and in Dams in Tirumala / Tirupati and other places and meeting medical expenses to the pilgrims for all the above said risks”.

    

            10.  There are incidents wherein the pilgrims, who sustained injuries or died in the accidents within the premises of TTD were also given compensation. When the Public Liability Insurance Policy was taken only to cover the risks of the pilgrims, the opposite party No.2 cannot say that the deceased pilgrim Nagarathnamma was not covered by the policy. The opposite party No.2 is collecting amounts from opposite party No.1 to cover the risks of the pilgrims. As such the pilgrims as well as the complainants, who were the legal heirs and beneficiaries, who made claims for the death or injuries of the deceased or injured pilgrims, claiming that they are the legal heirs, such complainants are consumers within the meaning of Section-2(i)(d) of the C.P.Act. The opposite party No.1 is paying premiums and extracting services from opposite party No.2 in order to serve the grievances of the pilgrims. The claim application preferred by the complainants on 01.11.2012 was forwarded to opposite party No.2 by opposite party No.1, requesting them to take necessary action from that side. The opposite party No.1 has promptly persuaded the matter by giving reminders to opposite party No.2, once on 11.03.2013, again on 20.05.2013, again on 11.07.2013 and finally on 16.09.2013, requesting opposite party No.2 to take necessary action in this matter. As such it is found that there is no negligence or deficiency in service on the part of the opposite party No.1. So far as opposite party No.2 is concerned, though they received the claim application on 01.11.2012 from opposite party No.1 and also received reminders referred to above, from opposite party No.1, they did not take any action in the matter and finally stated that they are unable to take action on the ground that the deceased Nagarathnamma died in the accident due to jeep run over on her while she was sleeping in front of 3^rd choultry on the road. The word in front of the choultry on the road implies that the deceased was out of the TTD premises i.e. out of the 3^rd choultry. But infact the FIR under Ex.A1 and the rough sketch of scene of offence under Ex.A8 clearly establishes that Nagarathnamma was sleeping beside the portico of 3^rd choultry within the premises of 3^rd choultry, while she was sleeping, a jeep ran over her, consequently she suffered shock and hemorrhage due to which spleen was  ruptured and fracture of ribs etc. as shown in Ex.A2 Postmortem Certificate dt:24.10.2012 and she succumbed to those injuries, while taking treatment in SVRRGG hospital, Tirupati, at about 11.30 a.m. on 23.10.2012 itself i.e. on the date of accident itself. The accident was occurred (as per the documents filed) at about 4.30 a.m. on 23.10.2012. Inspite of all these facts, opposite party No.2 expressed its inability to settle the claim only on the ground that the deceased was sleeping on the road in front of 3^rd choultry. This version of opposite party No.2 prima facie appears to be false and un-sustainable. Infact the accident was took place within the premises of 3^rd choultry of T.T.Devasthanam. In view of the above averments, it is evident that there is deficiency in service on the part of the opposite party No.2, and it is liable to pay the compensation.  Accordingly this point is answered.

            11. Point No.(iii):-   In order to establish that the complainants are entitled to get compensation on behalf of the deceased Nagarathnamma, they have to prove the identity of deceased Nagarathnamma and relationship of the complainants with Nagarathnamma (died) by documentary proof as well. This case was decided earlier on 19.01.2015, stating that the complainants did not file cogent documentary evidence such as photo of deceased Nagarathnamma and also failed to file any ration card, photograph showing the family members of Nagarathnamma establishing the identity of Nagarathnamma as well as the complainants, and this Forum also held that  the complainants also failed to prove that 1^st complainant is the husband of Nagarathnamma and complainants 2 and 3 are the sons of deceased Nagarathnamma. The photograph containing the family members of complainant No.1, and complainants 2 and 3 as well as Nagarathnamma was not filed. Unless complainants     1 to 3 prove the above facts, it is difficult to say that they are the legal heirs of deceased Nagarathnamma. On this ground, this Forum held that the complainants are not entitled for the compensation or the relief sought for. This Forum further held earlier that since there is deficiency in service on the part of the opposite party No.2, it is liable to pay compensation for the death of Nagarahnamma and also to pay damages as well. As already discussed supra, there is no deficiency in service on the part of the opposite party No.1, but opposite party No.2 is found guilty of deficiency in service. Further this Forum held that opposite party No.2 is liable to pay compensation of Rs.2,00,000/- for the death of Nagarathnamma along with interest at 9% p.a. from the date of complaint i.e. 06.09.2013, till realization, to the legal heirs of the deceased Nagarathnamma, who was a pilgrim of opposite party No.1. The opposite party No.2 also liable to pay damages of Rs.5,000/- towards deficiency in service on its part and costs of Rs.2,000/- to the legal heirs of the deceased Nagarathnamma, and finally this Forum held that the complainants failed to establish that they are the legal heirs of the deceased / their relationship with the deceased Nagarathnamma by cogent documentary evidence, they are not entitled to receive the compensation, damages and costs from the opposite party No.2. The opposite party No.2 is directed to deposit the amounts awarded as compensation, damages as well as costs in the Forum into the credit of this case within six (6) weeks from the date of receipt of copy of the order. The competent legal heirs shall be entitled to receive the said amounts awarded and therefore complaint of the complainants is liable to be dismissed so far as their entitlement is concerned.

            12. Aggrieved by the order dt:19.01.2015, the 2^nd opposite party i.e. Senior Divisional Manager, United India Insurance Co. Ltd., preferred an appeal in F.A.No.316/2015 before the Hon’ble State Consumers Disputes Redressal Commission, Hyderabad. The Hon’ble State Commission while disposing of the appeal pleased to set aside the orders of this Forum dt:19.01.2015 and remanded the matter for fresh disposal, after giving opportunity to both parties with a liberty to adduce additional evidence in support of their contentions.

13.  This Forum on receipt of the orders in the appeal on 05.09.2017 from the Hon’ble State Commission, issued notices to both parties. Thereafter, the complainants appeared before this Forum and while advancing the arguments by the counsel for both parties , the complainants filed Ex.A9 Family Member Certificate in support of their contest, and the opposite parties did not adduce any further evidence in any manner. Ex.A9 Family Member Certificate issued by the Tahsildar, Palamaner, through mee-seva dt:06/11/2017 shows that K.Munaswamy is the husband of the deceased Nagarathnamma, and the 2^nd and 3^rd complainants are their sons. In Ex.A3 Inquest Report, name of the husband of the deceased Nagarathnamma was shown as K.Munaswamy, and K.Ravi Chandra, 3^rd complainant is shown as her son. Similarly in Ex.A1 FIR No.114/2012 of Traffic Police Station, Tirupati, shows that Munaswamy, 1^st complainant, as the husband of the deceased Nagarathnamma. By virtue of Ex.A9 coupled with Exs.A3 and A4, the complainants have established that they are the legal heirs of the deceased Nagarathnamma and they are entitled to receive the compensation i.e. claim amount of Rs.2,00,000/-, damages of Rs.5,000/- and costs of Rs.2,000/-, totaling Rs.2,07,000/-.

14.  Their Lordships in their order under the appeal pointed-out that this Forum has committed an error in citing the policy conditions, proposal and declaration given by TTD, apart from the status of the complainants. The policy issued by the              2^nd opposite party is Public Liability Non-Industrial Risk Policy bearing No.051200/12/37/00000054 and risks covered under the policy are also discussed supra. In this connection, the words used in the policy viz. Any One Accident (AOA) and Any One Year (AOY) are applicable, as the accident occurred within the premises of TTD i.e. within the premises of 3^rd choultry. The opposite parties have not filed the proposal form and declaration.

15. Point No.(iv):-  In view of the discussion on points 1 to 3, we hold that the complainants have established that they are the legal heirs of the deceased Nagarathnamma, and they are entitled for the compensation of Rs.2,00,000/- and damages of Rs.5,000/- as well as costs of Rs.2,000/-. This finding given in the earlier order dt:19.01.2015 was intact, and accordingly this complaint is to be allowed.

In the result, complaint is allowed in part directing the opposite party No.2, to pay compensation of Rs.2,00,000/- (Rupees two lakhs only) with interest at 9% p.a. from the date of complaint i.e. 06.09.2013 till realization and directed to pay Rs.5,000/- (Rupees five thousand only) towards damages for the deficiency in service on the part of the opposite party No.2, and also directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint. On depositing such total amount of Rs.2,07,000/-, the complainants 1 to 3 are entitled to receive Rs.2,07,000/- along with interest accrued thereon. The opposite party No.2 is further directed to comply with the orders within six (6) weeks from the date of receipt of copy of this order, failing which the damages amount of Rs.5,000/- shall also carry interest at 9% p.a. from the date of this order, till realization. 

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 27^th day of December, 2017.   

 

       Sd/-                                                                                                                      Sd/-                                                    

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1:K.Munaswamy H/o.deceased K. Nagarathnamma  (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: M.Bhanumathi W/o. U.V. Subrahmanyam (Chief Affidavit filed). 

 

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date	Description of Documents
Ex.A1.	23.10.2012	Attested copy of FIR in crime No.114/2012 of Traffic P.S.Tirupati.
2.	24.10.2012	Attested copy of P.M.report of deceased K.Nagarathnamma.
3.		Attested copy of inquest report of deceased K.Nagarathnamma.
4.		True copy of CC of Charge sheet in C.C.No.08/2013 on the file of Hon’ble IV Addnl.Jdl.First class Magistrate, Tirupati.
5.	14.11.2012	Attested photo copy of death certificate of deceased K.Nagarathnamma.
6.	01.11.2012	Office copy of claim application to the Opposite party No.1 with postal acknowledgement.
7.	03.05.2013	Office copy of remainder to the Opposite Party No.1 with postal acknowledgement.
8.		True copy of Rough Sketch.
9.	06.11.2017	Original copy of Family Member Certificate issued by the Tahsildar, Palamaner Mandal (Mee Seva Copy) of the petitioner/complainant.

 

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Date	Description of Documents
Ex.B1.	21.11.2013	Photo copy of the Policy issued to the first opposite party by the second opposite party.
2.	16.09.2013	Letter addressed to the second opposite party issued by the first opposite party.
3.	31.08.2012	Photo copy of the terms and condition and computer generated original copy of the policy issued to the first opposite party issued by the second Opposite Party.

 

 

                                                                                                                                   Sd/-     

                                                                                                                President

 

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

               Dist. Consumer Forum-II, Tirupati.

  

 

 

Copies to:-     1. The complainants.

                        2. The opposite parties.