Date of filing: 21-03-2013
Date of Disposal: 25-09-2014
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
Thursday, the 25th day of September, 2014
C.C.NO.55/2013
Between:
K.Zareena
W/o Late K.Anwar Hussain
D.No.21/105, Yadava Street,
Dharmavaram Town,
Ananthapuramu District. … Complainant
Vs.
- The General Manager,
Shriram General Insurance Company Ltd.,
E-8, EPIP, RIICO Industrial Area
Sitapura, Jaipur,
Rajasthan – 302 022.
- The Branch Manager,
Shriram General Insurance Company Ltd.,
East Marredpally
Secunderabad – 500 026. …. Opposite Parties
This case coming on this day for final hearing before us in the presence of Sri M.Zubair, Advocate for the complainant and Sri G.Seetharama Rao, Advocate for the 1st opposite party and 2nd opposite party is called absent and set-exparte 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 Rs.2,00,000/- towards assured amount and other benefits with interest @ 24% p.a. from the date of policy till the date of realization, Rs.30,000/- towards mental agony and grant such other relief or reliefs.
2. The brief facts of the complaint are that: - The complainant is the wife of deceased K.Anwar Hussain, who had taken the Personal Accident Policy from the 2nd opposite party for a sum of Rs.2,00,000/- on 25-03-2011 vide policy bearing No.417052/48/11/001487. The 1st opposite party is Head Office and the complainant is nominee of the said policy. The complainant stated that the premium amount paid by the policyholder at Ananthapuramu through the agent of opposite parties 1 & 2. The complainant stated that her husband K.Anwar Hussain died in the road accident on 28-06-2011 near T.G.Palli, Kamalapuram, Kadapa Main Road and the same was registered by Vallur P.S., Kadapa District in Cr.No.64/2011 under section 304-A on 29-06-2011. The complainant stated that the policy was in force on the date of the accident. Immediately after the death of the policy-holder the complainant wrote a letter to the opposite parties and informed about the death of her husband and requested to pay the policy amount as she is a nominee on 09-02-2012. When there is no response, the complainant got issued a legal notice to the opposite parties on 15-09-2012 and the same was received by both parties and no reply was given. These are all amounts to deficiency of service. Hence, the complainant filed the above complaint claiming compensation of Rs.2,00,000/- along-with interest and also Rs.30,000/- towards mental agony and other reliefs.
3. The counsel for the 1st opposite party filed counter stating that the complaint is not maintainable either in law or on facts. The opposite party does not admit the allegations made in the complaint and the complainant is put to strict proof of all the allegations which are specifically admitted hereunder. The opposite party submitted that the complaint as filed is a premature one and the complainant without sending the criminal case records including the DL of the deceased had approached this Forum directly without giving any opportunity to the company to verify the genuineness of the documents to take decision and to consider the claim of the complainant. The 1st opposite party also submitted that the policy is purely governed by the terms and conditions and endorsement of the policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be condition precedent to any liability of the company to make any payment under the policy of insurance and the policy issued subject to sections 145(b) & (d), 146, 147, 149 of M.V. Act and section 64 VB of the Insurance Act. The opposite party also submitted that this opposite party is not aware of the manner of accident, involvement of motor vehicles and the death of the deceased as averred in the complaint. The complainant has not come to this Forum with clean hands and she has suppressed the true and material facts from this Forum. Therefore she is not entitled for any relief and the present complaint is wholly misconceived. The opposite party also submitted that some unknown vehicle hit the deceased in the night and skulked from the scene of offence as evidenced by the FIR and inquest report and the alleged letter submitted by the complainant dt.09-02-2012 and the legal notice dt.15-09-2012. The opposite party also stated that the complainant had intentionally not filed charge sheet into the court to conceal real facts in the case. The opposite party also stated that 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 within the ambit of the Consumer Protection Act and it is exclusively triable by the civil court. The opposite party also submitted that the complaint is barred by limitation as the opposite party is not aware of the accident occurred on 28-06-2011 till date and the complainant in order to make any claim with the opposite party they have to submit the criminal case records and vehicular particulars of the insured vehicle to look into their claim. It is the incumbent duty of the complainants to lodge a 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 and vehicular particulars of the insured vehicle. But the complainant never made any claim with this insurance company and hence the claim need not be looked into as it is time barred. The opposite party also stated that in order to look into the claim under P.A. coverage as claimed by the complainant the insured/deceased should invariably possess the driving licence to drive the motor cycle with gear at the time of accident, which is one of the essential document to consider the claim. But the complainant has not even submitted the driving licence of the deceased much less the criminal case records to the insurance company to verify the genuineness of the accident and other material facts to settle the claim and the present claim is unsustainable and the Forum need not be looked into and the claim is belated one. The opposite party submitted that the complainant has not filed the driving licence of the deceased into the Forum 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/insured should be driving the motor cycle as owner-driver at the time of accident and as per the terms and conditions of the policy and drivers clause he should invariably possess valid and subsisting driving licence to drive the motor cycle with bear, other-wise this opposite party need not entertain any claim. The opposite party submitted that the legal notice issued by the complainant through her counsel but no documents such as criminal case records and vehicular particulars and driving licence of the deceased have been sent to the Insurance Company atleast to register the claim. Till the receipt of summons this opposite party is not aware of the accident and the claim made by the complainant before this Forum. The opposite party submitted that Insurance is a contract of indemnity. It has to be viewed as a normal contract as per the Indian Contract Act. Any violation of the insurance contract by the parties to the contract becomes void and in such event the insurance company would not be liable to answer the complainant. The proceedings initiated by the complainant under the Act are nonest, null and void and without jurisdiction and the complaint is liable to be dismissed with exemplary costs. There is no deficiency of service or mental agony as alleged by the complainant.
4. The 2nd opposite party is called absent and set-exparte.
5. Basing on the above pleadings the points that arise for consideration are:-
1. Whether there is any deficiency of service on the part of the opposite parties 1 & 2?
2. To what relief?
6. To prove the case of the complainant, the evidence on affidavit of the complainant has been filed and basing on the evidence on affidavit Ex.A1 to A9 are marked. On behalf of the 1st opposite party, the evidence on affidavit of the 1st opposite party has been filed and no documents marked on behalf of the 1st opposite party.
7. POINT NO.1 - The counsel for the complainant argued that the husband of the complainant by name K.Anwar Hussain has taken policy with the 2nd opposite party on 25-03-2011 and it is valid up-to 24-03-2012. The counsel for the complainant argued that on 28-06-2011 the policy-holder died in a road accident near T.G.Palli and a crime was registered by Kadapa P.S. in Crime No.64/2011. The counsel for the complainant stated that after the death the complainant made a claim on 09-02-2012 with the opposite parties, but there is no reply from the opposite parties, then she got issued legal notice on 15-09-2012 through her counsel and the said notice was served on the opposite parties, but no reply. Hence claim before this Forum.
8. The counsel for the 1st opposite party argued that the complainant has not made any claim before the opposite parties after the death of policy-holder. The opposite party stated that they are unaware about the accident of policyholder alleged to have been occurred on 28-06-2011. The opposite party came to know all the facts only when they received summons from the Forum and the claim of the complainant is belated as per terms and conditions the claim should be made with the opposite parties within stipulated time along-with criminal records and vehicular particulars. The opposite party also argued that to claim P.A. coverage the insured should invariably possess valid driving licence to drive the vehicle. The complainant has not submitted all the records to settle the claim and claim is a premature one. The counsel for the opposite party argued that the complainant approached this Forum without giving an opportunity to investigate about the alleged accident and filed this frivolous complaint hence the complaint is liable to be dismissed.
9. As per Ex.A1 policy one K.Anwar Hussain has taken policy on 25-03-2011 with Shriram General Insurance Company i.e. 2nd opposite party for a sum of Rs.2,00,000/- and it is valid up-to 24-03-2012. In the said policy one K.Zareena i.e. complainant is the nominee. The 1st opposite party has not disputed about the policy taken by one K.Anwar Hussain with the 2nd opposite party and the complainant is the nominee.
10. The complainant filed Ex.A1 to 8 documents at the first instance and Ex.A9 filed in I.A.No.81/2014. Ex.A2 to A4 are criminal records pertaining to death of the policyholder. Ex.A5 and A6 are claim and legal notice issued to the opposite parties and the postal acknowledgment cards.
11. Admittedly the 1st opposite party has not filed any document. As per Ex.A5 the complainant made a claim with the 1st opposite party on 09-02-2012, when there is no response for her claim, then she got issued legal notice under Ex.A6. In Ex.A6 it was mentioned that FIR, policy copy and claim of complainant dt.09-02-2012 were attached and Ex.A7 are postal receipts for issuing legal notice to the opposite parties. Ex.A8 are postal acknowledgments of the opposite parties. But there is no reply for the legal notice nor repudiated the claim. Now, the opposite party contends that the complainant has not made any claim before them at any point of time and they came to know about the accident of the policyholder only after receiving of summons from the Forum. In Ex.A6 notice it is clearly mentioned that the documents are enclosed along-with notice. When the notice was served it is the duty of the opposite party to give reply or repudiate the claim. But the opposite party did not do so. More-over the opposite party argued that the claimant has to inform about the accident within stipulated time. But the opposite party failed to explain what the stipulated time is. As the opposite party has not filed any terms and conditions to know about the delay. Admittedly the complainant made a claim with the opposite party after lapse of 7 months. However the reasons explained for delay that she is unaware of the policy taken by her husband cannot be considered. The opposite party argued that the complainant has not submitted any criminal records, driving licence and vehicular particulars to register the claim. After the opposite parties raised this objection by way of memo. The complainant filed Ex.A9 in I.A.No.81/14 and 2 other unmarked documents i.e. proceedings of the Sub-Divisional Police Officer, Kadapa dt.10-10-2011 and the report of the Station House Officer clearly establishes that the accident of the policyholder. All the objections taken by the opposite parties in paras 2 & 3 of the counter that without prejudice to the above reiterations, but not admitting the liability on the grounds reiterated above, in order to look into the claim under P.A. coverage as claimed by the complainant, the insured/deceased should invariably possess the driving licence to drive the motor cycle with gear at the time of accident, which is one of the essential document to consider the claim. The complainant has not even submitted the driving licence of the deceased much less the criminal case records to the insurance company to verify the genuineness of the accident and other material facts to settle the claim. Since the complainant has not submitted any document, the present claim is unsustainable and the Forum need not be looked into and the claim is belated one and suffers limitation aspect also. The opposite party submits that the complainant has not filed the driving licence of the deceased into the Forum 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. This opposite party submits that in order to make a P.A. claim the deceased/insured should be driving the motor cycle as owner-driver at the time of accident and as per the terms and conditions of the policy and drivers clause he 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 complainant is hereby called upon to file DL extract of the deceased into the Forum by next date of hearing other-wise adverse inference may kindly be drawn. With regard to cause of death, valid driving licence and other conditions for coverage of personal accident are explained under the Ex.A2 to A4 and A9. The only valid objection the opposite parties could be delay in intimation. This should be established by the opposite parties except stating in their counter and reply on merits in para No.1 that it is the incumbent duty of the “ complainant to lodge a claim before the opposite party within stipulated time from the date of occurrence “ there is no documentary evidence to explain what is the “stipulated time “. The burden of explaining and proving that the complainant approached the opposite party beyond the stipulated time to get on with their case. No document is filed by the 1st opposite party. It is pertinent to note that even after the receiving legal notice under Ex.A6 the opposite parties did not take any pain to reply explaining that the same was beyond the stipulated time and repudiated the claim on that ground, is surprising. While the insurance companies chase the policyholders for payment of premium by repeated correspondence. We cannot understand why they show attitude in giving reply even after legal notice in case of claims by the legal heirs. Even after moving to Forum the opposite parties in this case did not come forward with documents explaining the delay in the claim of the complainant. Hence there is clear deficiency of service on the part of the opposite parties in not replying to the demands of the complainant suitably in favour of the complainant. Hence, this point is answered accordingly in favour of the complainant and against the opposite parties.
12. Thus the complainant established her case and entitled for the claim amount. With regard to the mental agony, this Forum opined that the complainant is not entitled any amount much less Rs.30,000/- claimed in the complaint . Since she herself does not know that there was a policy in the name of her deceased husband for more than 8 months and hence there cannot be any reasonable sufferance caused by the opposite parties in any manner whatsoever. Under these circumstances, no amount is awarded towards mental agony.
13. POINT NO.2 - In the result the complaint is allowed partly by directing the opposite parties 1 & 2 jointly and severally to pay a sum of Rs.2,00,000/- towards assured amount to the complainant within one month from the date of this order; in default the complainant is entitled interest @ 9% p.a. on Rs.2,00,000/- from the date of this order till the date of realization. No costs awarded.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 25th 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 OPPOISITE PARTIES
-NIL- - NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 – Personal accident policy bearing No.417052/48/11/001487 issued by the
opposite Parties to the deceased K.Anwar Hussain.
Ex.A2 - Attested copy of F.I.R. in Cr.No.64/2011 of Vallur P.S., Kadapa District.
Ex.A3 - Attested copy of Inquest report relating to deceased K.Anwar Hussain.
Ex.A4 - Attested copy of postmortem certificate relating to deceased K.Anwar Hussain.
Ex.A5 - Photo copy of letter dt.09-02-2012 sent by the complainant to the 1st opposite
party.
Ex.A6 - Office copy of legal notice dt.15-09-2012 got issued by the complainant to the
Opposite parties 1 & 2.
Ex.A7 - Postal receipts for sending the legal notices to the opposite parties 1 & 2.
Ex.A8 - Postal acknowledgments signed by the opposite parties 1 & 2.
Ex.A9 - Driving licence relating to deceased K.Anwar Hussain issued by Additional
Licencing Authority, Ananthapuramu.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES
Sd/- Sd/-
LADY MEMBER, PRESIDENT(FAC),
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM,
ANANTHAPURAMU ANANTHAPURAMU
Typed by JPNN
