Date of filing:10-11-2011
Date of Disposal: 05-09-2014
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: ANANTHAPURAMU
PRESENT:- Sri S.Niranjan Babu, B.A.,B.L., President (FAC).
Smt.M.Sreelatha, B.A., B.L., Lady Member
Friday, the 5h day of September, 2014
C.C.NO.111/2013
Between:
G.Krishnamurhty @ Kedimi Krishnamurthy
S/o Siddappa, D.No.10-2-197,
Church Road, Lakshmi Bazar
Rayadurg, Ananthapuramu District. … Complainant
Vs.
1. The General Manager,
Road Safety Club Pvt. Ltd.,
2-A, II Floor, Prakasam Road,
T.Nagar, Chennai – 600 017.
2. The Manager,
Reliance General Insurance Co. Ltd.,
Regd. Office, 3rd floor, Maker Chambers IV,
222, Nariman Point,
Mumbai – 400 021. … Opposite parties
This case coming on this day for final hearing before us in the presence of Sri P.Chenna Reddy and Sri A.Mallikarjuna Reddy, Advocates for the complainant and Sri K.Chandrasekhar Rao, Advocate for 1st opposite party and Sri G.Seetharama Rao, Advocate for 2nd opposite party and after perusing the material papers on record and after hearing the arguments on both sides, the Forum delivered the following:
O R D E R
Smt.M.Sreelatha, Lady Member:- This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite parties 1 & 2 claiming a sum of Rs2,00,000/- towards sum assured under the insurance policy with interest @ 24% p.a. from the date of death of the insured, Rs.50,000/- towards mental agony and expenses and award costs of the complaint and grant such other relief or reliefs.
2. The brief facts of the complaint are that :- The complainant is the father of one G.Thippe Swamy, who died in the road accident. The 2nd opposite party is the insurance company having joint venture with the 1st opposite party. The 1st opposite party collects the membership fee from the public and issues Membership Certificate for 72 months and pays the insurance premium to different insurance companies on the life of the members. The complainant’s son G.Thippe Swamy was working in Shriram Chit Fund Company in Rayadurg Branch and he joined as a member in the Road Safety Club Programme (AMS Classic Special-6) launched by the 1st opposite party by paying a sum of Rs.2,500/- vide Membership Certificate No.PZC/2005032400/2331496/SCR/70 dt.24-03-2005 which is valid for 72 months. The complainant is the assignee of the policy-holder. The 1st opposite party has to pay insurance premium for the life of the said G.Thippe Swamy for the period of 72 months covered by the membership certificate. For the first year the 1st opposite party has paid premium to National Insurance Co. Ltd., vide policy No.SC6/PC000006903 valid from 24-03-2005 to 23-03-2006 for a sum of Rs.2,00,000/- for the accidental death and it is the bounden duty of the 1st opposite party to renew the policy or to take a fresh policy for the subsequent years. On 03-05-2007 the deceased G.Thippe Swamy and the Branch Manager of Shriram Chit Fund Company were proceeding on a motor cycle to collect the chit amounts and at about 6.30 A.M. met with an accident and deceased was severely injured and died in the night 7/8-05-2007 while undergoing treatment. The police registered a case in Cr.No.53/2007 of Kalyandurg P.S. Shriram Chit Fund Company has also paid Insurance premium on the life of its employees to another insurance company i.e. TATA AIG General Insurance Co. Ltd., under Group Insurance vide GPAR Policy No.40033400. After the death of the deceased G.Thippe Swamy, the complainant has requested the 1st opposite party and Shriram Chit Fund Company for the settlement of the insurance amount. The 1st opposite party sent a letter dt.07-03-2008 to the complainant stating that the claim should be made within 15 days. The complainant filed a complaint on 15-09-2008 in C.C.NO.107/2008 on the file of this Forum against Shriram Chit Fund Company that the 1st opposite party and TATA AIG General Insurance Company with the impression that the 1st opposite party has renewed the insurance with TATA AIG General Insurance Company for the relevant period. The 1st opposite party contested the case denied the liability and initially the 1st opposite party has not furnished insurance company details with which the policy was renewed. But TATA AIG General Insurance Company informed this Forum that there is no nexus with the 1st opposite party. On 28-05-2010 the 1st opposite party has disclosed the details of the correct insurance company i.e. 2nd opposite party by way of additional counter in C.C.No.107/2008 and the said case was disposed of. After coming to know about the correct insurance company, the complainant has sent legal notice on 22-07-2010 to the 1st opposite party to furnish copy of insurance policy to claim insurance amount. The 1st opposite party furnished policy number with evasive reply dt.20-08-2010 and repudiated the claim. The complainant has also sent another notice on 31-08-2010 to the opposite parties 1 & 2 for settlement of the claim, but they did not give any reply for the same. Though the 1st opposite party received the amount, issued membership certificate and paid insurance premium, they have not disclosed the insurance details. The 2nd opposite party received premium and issued insurance policy, they have not paid the insurance amount. Hence, there is deficiency of service on the part of the opposite parties 1 & 2. The complainant suffered mental agony and incurred expenses and filed this complaint.
3. The 1st opposite party filed counter admitting that the complainant is father of deceased G.Thippe Swamy and nominee in the policy. The 1st opposite party also admitted that the complainant’s son joined as a member in the Road Safety Club Programme (AMS Classic Special 6) by paying Rs.2,500/- through Shriram Chits at Rayadurg vide Membership Certificate No.PZC/2005032400/2331496/SCR/70 dt.24-03-2005. This opposite party has no knowledge about the death of G.Thippe Swamy who died in road accident on 03-05-2007 while the deceased was proceeding on the Motor Cycle along-with Branch Manager as part of his employment to collect the chit amount at about 6.30 A.M. met with an accident and died while undergoing treatment. This opposite party is not aware that the deceased who worked in Shriram Chit Fund Company and the said company has also paid insurance premium on the life of its employees to another insurance company i.e. TATA AIG General Insurance Company Ltd., under Group Insurance vide GPAR Policy No.40033400. As per the terms and conditions of the insurance policy, the claim should be made within 15 days from the date of death. The first complaint was filed on 15-09-2008 in C.C.No.107/2008 on the file of this Forum against Shriram Chit Company and 2 others and the same was disposed against this opposite party of exonerating the liability. This opposite party gave proper reply to the notice and not repudiated the claim. This opposite party is a mediator of 2nd opposite party and this opposite party brings awareness among the public with regard to road safety and thereby educate them and make them as member of the club to enable them to get insurance cover from insurance company. Once the insurance company provides insurance cover, the role of this opposite party ends. The service of this opposite party would be only confined to the extent of arranging the policy of insurance company to their members. In case the insurance company already provided the policy, the contract is between the complainant and insurance company only. This opposite party is not necessary party to this complaint and not liable to pay insured amount to the complainant and there is no need or necessity to this opposite party to escape from the liability and the claim has to be settled by the 2nd opposite party only. Under Road Safety Club Membership Certificate, this opposite party paid insurance premium to the 2nd opposite party for the period from 23-03-2007 to 22-03-2008 under Group Personal Accident Master Policy No.12-29-14-00129-05. The policy under which the complainant is claiming the insurance claim is not at all concerned with this opposite party. There is no deficiency of service on the part of this opposite party. The complainant has to proceed against the insurance company, but not against this opposite party. In accordance with the provisions of Arbitration & Conciliation Act, 1996, it is settled law that if at all the complainant is having any dispute or claim, he is entitled or he is at liberty to seek reference of the dispute to the Arbitration in terms of Arbitration clause in the Road Safety Club Programme terms and conditions. Therefore the complaint is liable to be dismissed. The complainant is not a consumer and he is not entitled for compensation under Consumer Disputes Act. If any dispute in relation to the matter will be subject to jurisdiction of Chennai courts only. This Forum has no jurisdiction to entertain the complaint under section 12 of the Consumer Protection Act and the complaint is liable to be dismissed.
4. The 2nd opposite party filed a counter stating that the complaint filed by the complainants is not maintainable either in law or on facts of the case. This opposite party denies all the allegations made in the complaint. The opposite party submits that the complaint is premature one and the complainant without sending the legal heir certificate, Death Certificate and vehicular particulars of the motor cycle and driving licence of the deceased as may be required to process the claim by this opposite party and without giving any opportunity to the company to verify the genuineness of the documents and to take decision to consider the claim of the complainant. Without prejudice to the above reiterations, the insurance is a contract of indemnity. It is a contract between two parties i.e. the insured and insurer. In the above case, the 1st opposite party never issued any Group Personal accident Master policy to the deceased, this opposite party need not indemnify any risks covered thereunder. Hence there is no enforceable contract between the deceased and the answering opposite parties. Hence the complaint is not maintainable on this ground and liable to be dismissed. The complainant furnished Xerox copy of the policy, which is valid from 24-03-2007 to 23-03-2007 and the date of accident is 03-05-2007. As on the date of accident, there is no valid and subsisting policy of insurance. As there is no privity of contract between the deceased and opposite parties, the complainant has no locus standi to file the complaint against this opposite party. The liability against this opposite party is purely governed by the terms and conditions and exclusion of the policy to fasten any liability in case the complainant produces genuine, valid and subsisting policy and confirms by this opposite party. There is no policy of insurance issued by the opposite parties to mulct any liability on the ground No policy no liability. Further the opposite party submits that they are not aware of the manner of death of deceased etc., facts as averred in the complaint. Further submits that the complainant has not come to this Forum with clean hands and he has suppressed true and material facts of the case. Hence, the complaint is liable to be dismissed. This Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall under the Consumer Protection Act. Further the opposite party submits that the definition of the “ complainant”, “ complainant “ “Consumer Disputes “ and “ service “ as defined under section 2(1) of the said Act do not cover the claim arising under the present dispute and that from the definitions, the complainant is not a consumer and the controversy involved in the complaint is not a consumer dispute. The opposite party further submits that the complainant is estopped by his own acts and conduct from filling the present complaint. There is no cause of action. The complaint is false, frivolous and liable to be dismissed with special costs under section 26 of Consumer Protection Act. Claim is barred by limitation as the opposite party is not aware of the accident occurred on 03-05-2007 to till date. The complainant in order to make any claim with the opposite party, they have to submit the criminal case records and the vehicle particulars of the insured vehicle to look into their claim and it is the duty of the complainant to lodge claim before the Insurance Company i.e. opposite party within the stipulated time from the date of occurrence of the accident along-with criminal case records of the insured vehicle, but the complainant never made any claim with the opposite party. Hence, the claim need not be looked into as it is a time barred claim. The complainant has not filed the driving license of the deceased into the court at the time of institution of claim and hence an adverse inference needs to be drawn that the deceased drove the motor cycle without driving licence. In order to make a P.A. claim the deceased should be driving the motor cycle as owner-driver at the time of accident and should invariably possess valid and subsisting driving licence to drive the motor cycle with gear, other-wise this opposite party need not entertain any claim. The present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed. As far as mental agony claimed by the complainant does not arise and the complaint is liable to be dismissed with exemplary costs.
5. Basing on the above pleadings, the points that arise for consideration are:-
1. Whether there is deficiency of service on the part of the opposite parties 1 & 2?
2. To what relief?
6. In order to prove the case of the complainant, the complainant has filed evidence on affidavit and marked Ex.A1 to A8 documents. On behalf of the 1st opposite party, evidence on affidavit of the 1st opposite party has been filed and marked Ex.B1 on behalf of the 1st opposite party. On behalf of 2nd opposite party, evidence on affidavit of 2nd opposite party has been filed no documents are marked on behalf of the 2nd opposite party.
7. Heard on both sides.
8. POINT NO.1 – As per Ex.A1 one G.Thippe Swamy is the member of the Road Safety Club i.e. 1st opposite party and he has taken policy on 24-03-2005, which is valid for 72 months and he paid an amount of Rs.2,500/- towards membership fee. The complainant stated that he is the nominee for the above said policy and the 1st opposite party paid insurance premium with National Insurance Company for the 1st year and later renewed with 2nd opposite party for subsequent years. The opposite parties 1 & 2 have not disputed about the membership of the said G.Thippe Swamy and nomination of the complainant. The 1st opposite party admitted in para 3 of the counter that G.Thippe Swamy joined as a member of Road Safety Club by paying Rs.2,500/- at Rayadurg vide Membership Certificate under Ex.A1 on 24-03-2005 may be true to that extent. The complainant stated in the complaint and affidavit that on 03-05-2007 the said policyholder was proceeding on the motor cycle along-with Branch Manager of Shriram Chit Fund Company on part of his work met with accident and died on the spot. A crime was registered by Kalyanudrg P.S. in Cr.No.53/2007 under Ex.A2 and Ex.A3 is inquest report and Ex.A4 is postmortem certificate to show cause of death. The complainant also stated that the policy was in force on the date of accident. The claim should be made within 15 days. Then the complainant filed complaint against Road Safety Club and Tata AIG General Insurance Company Ltd., under the impression that the 1st opposite party renewed the policy with TATA AIG General Insurance Company Ltd., and the matter is disposed fixing the liability against TATA AIG General Insurance Company Ltd., and exonerating against the 1st opposite party when the complainant came to know that 1st opposite party renewed the policy with Reliance General Insurance Company Ltd., by adding them as party, the present complaint filed claiming insurance amount of Rs.2,00,000/- and Rs.50,000/- for other heads.
9. The counsel for the 2nd opposite party argued that no claim was made before the 2nd opposite party at any point of time from the date of accident i.e. from 2007 to till this date and the claim is barred by limitation. Whereas the 1st opposite party admitted that they have received notice from the complainant and replied for the same in para 8 of counter of the 1st opposite party. This opposite party gave a proper reply and not repudiate the claim. As per Ex.A2 to A4 the death of G.Thippe Swamy was occurred due to accident and Ex.A2 to A4 are criminal records to show the cause of death. As per Ex.A5 and A6 the complainant made request with the 1st opposite party for settling the claim. It shows that the 1st opposite party has got knowledge about the death of the policyholder. The allegation of the 2nd opposite party that no claim was made with the 2nd opposite party is not considered because the complainant stated in the complaint that he is under the impression that 1st opposite party has renewed the policy with TATA AIG General Insurance Company Ltd., with this impression the complainant filed the complaint before this Forum in C.C.No.107/2008. When they came to know that for the period 2007 to 2008 the policy was renewed with the present 2nd opposite party again the complainant filed the present complaint along-with delay petition. We are admitting the arguments and documents filed by the complainant about filing of C.C.No.107/2008. Hence, we are of the opinion that there is no delay in intimating the death of the policyholder.
10. The counsel for the 1st opposite party argued that as per Ex.B1 the policy was renewed with the 2nd opposite party from 24-03-2007 to 23-03-2008 and 1st opposite party acknowledged that 1st opposite party will not be liable in any manner whatsoever by virtue of any insurance coverage provided and insurance will be solely liable in case of any claim and 1st opposite party has got right to cease the membership of the member at their sole discretion and without any notice to member to cancel or withdraw benefit of such insurance cover. The 1st opposite party also alleged that as per terms & conditions there is clause of Arbitration & Conciliation Act, 1996 and any dispute or claim is to be made before arbitrator and this Forum has no jurisdiction to entertain the claim.
11. Admittedly no agreement filed by the 1st opposite party to show what are the terms and conditions and what are the liabilities between the opposite parties 1 & 2. It is undisputed as per Ex.B1 that it was issued by the 2nd opposite party and name of insured mentioned as Road Safety Club, name of the member as G.Thippe Swamy valid from 24-03-2007 to 23-03-2008. The accident occurred on 03-05-2007 as per Ex.A2 and policy was in force on the date of accident. As per Ex.A1 the life assured insured his life for the first time in the year 2005 through 1st opposite party, the same was not disputed by the 1st opposite party for the year 2005 to 2006 the 1st opposite party insured with National Insurance Company, later with TATA AIG General Insurance Company Ltd., for the year 2006 to 2007 and for the year 2007 to 2008 with reliance General Insurance Company i.e. 2nd opposite party. When the 1st opposite party knew that they renewed the policies with the 2nd opposite party for the year 2007 to 2008, is it not the duty of the 1st opposite party to furnish the details of the insurer when a claim made before them? The 1st opposite party has not acted diligently on their part. The 1st opposite party negligent on their part in not settling the claim nor submitting the claim of complainant to the 2nd opposite party. Admittedly the accident was occurred in the year 2007, a complaint was filed before this Forum in the year 2008 in C.C.No.107/2008. If the 1st opposite party furnished the details of the current year insurer, the complainant might have made the claim with the right insurer and for the fault of the 1st opposite party, the complainant has to wait for more than 7 years. The act of the 1st opposite party clearly shows its negligence act. More-over the 1st opposite party contended their role will end after insurance the complainant provides insurance cover. Without filing any document to show what is the role of the 1st opposite party and the 1st opposite party cannot escape the liability by putting words in writing. As per Ex.B1 both opposite parties put their signatures in authorized signatory capacity and Ex.B1 shows that insured is 1st opposite party and insurer is 2nd opposite party. Hence, the 1st opposite party is jointly liable to pay the compensation.
12. The 1st opposite party argued about the jurisdiction and Arbitration clause, as per section 3 of the Consumer Protection Act, mere putting arbitration clause that this Forum does not oust jurisdiction, hence we are of the opinion that this Forum got jurisdiction to entertain the complaint.
13. The counsel for the 2nd opposite party argued that no claim is made before them and no document was submitted to verify genuineness of the claim, without submitting driving licence and other documents, the personal accident claim will not be settled. The complainant argued that they have submitted all the documents to the 1st opposite party and they failed to submit the same to the 2nd opposite party and 1st opposite party also failed to furnish the details of the present 2nd opposite party and all the documents are filed along-with this complaint. Hence the complainant is entitled the compensation. The documents which are filed along-with complaint are criminal records i.e. F.I.R., Inquest and post-mortem and these documents are enough to settle the personal accident claim. The 2nd opposite party argued that the complainant has not submitted driving licence of the deceased to know that the deceased was having valid driving licence to settle the claim. The accident occurred in the year 2007, so that the driving licence of deceased may not be available with the complainant and if it is available, he would have filed along-with complaint. If not filed the 2nd opposite party cannot take that ground as advantage to escape from the liability as an insurer. Hence, this point is answered accordingly in favour of the complainant and against the opposite parties 1 & 2.
14. POINT NO.2 In the result the complaint is allowed directing the opposite parties 1 & 2 to pay a sum of Rs.2,00,000/- towards sum assured jointly and severally with interest @ 9% p.a. from the date of death of deceased, a sum of Rs.10,000/- towards mental agony and Rs.5,000/- towards deficiency of service payable by the opposite party No.1 within one month from the date of this order. No costs awarded.
Dictated to Steno, transcribed by him, corrected and pronounced by us in open Forum this the 5th day of September, 2014.
Sd/- Sd/-
LADY MEMBER, PRESIDENT(FAC),
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM,
ANANTHAPURAMU ANANTHAPURAMU
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOSITE PARTIES
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 - Photo copy of Membership Certificate relating to deceased G.Thippe Swamy issued
by the 1st opposite party.
Ex.A2 - Photo copy of FIR in Cr.No.53/2007 of Kalyandurg P.S., Ananthapuramu District.
Ex.A3 - Photo copy of inquest report relating to deceased G.Thippe Swamy.
Ex.A4 - Postmortem report relating to deceased G.Thippe Swamy.
Ex.A5- Office copy of legal notice dt.22-07-2010 got issued by the complainant to the
1st opposite party.
Ex.A6 - Reply notice dt.20-08-2010 got issued by the 1st opposite party to the counsel for
the complainant.
Ex.A7- Office copy of legal notice dt.31-08-2010 got issued by the complainant to the
opposite parties 1 & 2.
Ex.A8 - Postal acknowledgment signed by the 2nd opposite party.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY NO.1
Ex.B1 - Photo copy of Certificate of Insurance relating to deceased G.Thippe Swamy
issued by the 2nd opposite party.
Sd/- Sd/-
LADY MEMBER, PRESIDENT(FAC),
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM,
ANANTHAPURAMU ANANTHAPURAMU
Typed by JPNN
