Karnataka

Belgaum

CC/357/2015

Tippawwa S Vannur - Complainant(s)

Versus

The Managaing Director Bhimawwa Laxmanrao Jarkiholi - Opp.Party(s)

S S Patil

20 Jun 2017

ORDER

                 

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.357/2015

 

                       Date of filing: 20/07/2015

 

                                                                   Date of disposal:20/06/2017

 

P R E S E N T :-

 

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

 

COMPLAINANT         -

1.       2.

Smt. Tippawwa W/o Shivanappa Halbar @ Vannur, Age: 50 Years, Occ: Household,   Shri. Nagappa S/o Shivanappa Halbar @ Vannur, Age: 24 Years, Occ: Agricultture, Both are R/o: Fulagaddi, Tq: Gokak, Dist. Belagavi.                               (Rep. by Sri.S.S.Patil, Adv.)

 

- V/S -

 

OPPOSITE PARTIES  -

1.           2.

The Managing Director, Bhimawwa Laxmanrao Jarkiholi, Memorial Charitable Trust, Kelkar Chawl, Hospet Road, Gokak.                                        (Ex-parte)   The Oriental Insurance Co. Ltd., Rep. by Divisional Manager, Divisional Office, 2nd Floor Madiwale Arcade, Club Road, Belagavi.                 (Rep. by Sri.V.B.Mallannavar, Adv.)

 

JUDGEMENT

 

By  Shri. A.G.Maldar, President.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “Ops”) directed to make payment of Rs.1,00,000/- with interest @ 18% p.a. from the date of accident and Rs.5,000/- towards damages and losses and any other reliefs.

 

2.      The facts of the case in brief are that;

 

          It is case of the complainant that, the complainants are the wife and son of deceased Shivanappa Udappa Halbar @ Vannur and further the said Shivanappa U. Vannur was the policy holder under beneficiary No.110826 as issued by the Op.No.1 and his ID Card No.DTW-1114503.

 

          It is further contended that, on 20.02.2014 at about 11.00 a.m. the deceased Shivanappa left his house to attend his coolie work at Fulagaddi and that he used to cross Ghataprabha river by swimming and that on the said date he failed to return his house on the next date on enquiry by the son of deceased it was learnt that, he has not attended the coolie work and further the complainants and their relatives searched here and there, and on 23.02.2014 they learnt that, a male dead body was flooting in the Ghataprabha river near Talakatnal village and that, the son of the complainant went to the spot and found that, the said dead body was of Shivanappa Uddappa Halbar @ Vannur and immediately he reported the said incident to Kulgod Police who inturn registered PS UD No.09/2014, U/s. 174 of Cr.P.C. and it is submitted that, after conducting preliminary enquiry and after postmortem examination the dead body was handed over to the complainants.

 

          It is further contended that, on 30.04.2014 the complainant No.2 has intimated the said fact alongwith relevant documents to the Op.No.1 and requested to disburse the Insurance Policy amount and Op.No.1 submitted that, duly intimated the requisition of complainants to the Op.No.2 and further the Op.No.2 intimated the Op.No.1 vide his letter dtd: 18.08.2014 that, the claim of the complainants is repudiated for the reasoning that, “died due to drowning in the river while cross. The investigator has confirmed that, death due to weakness and not keeping well”. At this juncture, the complainant No.2 submitted that, the deceased Shivanappa was hale and healthy and attending his coolie work and at no point of time he was not keeping good health and nor suffering from weakness.

 

It is further case of the complainants that, the complainants on several occasions requested the Ops insurance company to settle their claim, but the OP/Insurance Company went on postponing the claim of the complainants on one or the other pretext and further the OP/Insurance Company has repudiated the claim of the complainants even though the policy is in force on the date of incident. The OP/Insurance Company committed breach of the terms and conditions of the Insurance Act and thereby committed the deficiency in service as prescribed under the C.P. Act 1986 by not settling the claim of the complainants. Hence, the complainants have constrained to file this complaint.

  

 3.     After receipt of said notice to the Opponents, the Op.No.1 has neither appeared nor filed any version before this Forum. The OP.No.1 is placed Ex-parte. The Op.No.2 has appeared through his Counsel and resisted the claim of the complainant is false, frivolous and vexatious. The complaint of the complainants does not fall under the provisions of the C.P. Act and as such the complaint deserves to be dismissed as not maintainable.

 

          It is contended that, the contents of paras of the complaint are totally denied by the OP.No.2 and further the OP.No.2 has respectfully submits that, the complainant No.2 is the person who filed complaint in the form of intimation before Kulgod P.S. Admittedly, the complainants are making the complaint lodged before the police as basis to enforce the contract of insurance between the Op.No.1 & 2 and further submitted that, in the complaint itself, it is narrated by the complainant therein that “On account of weakness developed by the deceased victim while swimming, he drowned in the river and died”. Now the complainant cannot be permitted to deviate from the averments made in the complaint lodged by one of the complainant and to plead the things which are alien to the complaint and further the deceased victim knowing full well about his age and physical condition has taken unnecessary risk and met with unfortunate death which does not appear to be accidental one. But, it amounts to committing suicide which is not covered by the policy of insurance and further the Op.No.2 submits that, as the risk of the victim deceased is not covered under the policy in question, it is not liable to pay any amount to the complainants.

 

          It is further contended that, the complainants have not furnished anything to show that, the alleged deceased was covered by the GPA Policy issued by the OP.No.2 and it is specifically denied that, alleged deceased was the beneficiary under the scheme of GPA Policy. Hence, the complainants may please be directed to produce relevant documents to substantiate their case and further the contract of insurance is between the OP.No.1 & 2 and there was no privity of contract between the Op.No.2 on the one hand and with the deceased or with the complainants on the other hand and there is no negligence or deficiency in service on the part of the OP.No.2 and prayed for dismissal of the complaint with compensatory cost of Rs.10,000/-.

 

4.      The complainant and Op.No.2 have filed their affidavits in support of their case, the documents produced on behalf of the complainant which are marked as Ex.P-1 to Ex.P-7, as against this, the OP.No.2 has produced 02 documents which are marked as Ex.R-1 & R-2, for sake of our convenience, we have marked P & R series. The complainant and Op.No.2 have filed their written arguments. Heard the counsels of both sides. 

 

 

Now, on the basis of these facts, the following points that would arise for our consideration:

 

1. Whether the complainant has proved that, there is deficiency of service on the part of the OPs for not settling the claim towards death of Shivanappa?

 

 

2. What order?

 

 

5.      Our findings to the above points are as under:

 

                              

1. In Affirmative.
2. As per the final order for the following:

 

 

R E A S O N S

 

 

 

6.      POINT NO:1:-  We have perused the pleadings of the parties and the affidavit evidence and documents placed on record and the arguments advanced.  It is an admitted fact that, the deceased Shivanappa was the member of Smt.Bhimavva Laxmanrao Jarakiholi Memorial Charitable Trust had obtained  policy bearing No:472590/48/2014/35, period from 15.05.2013 to 14.05.2014 for assured sum of Rs.1,00,000/- for each member of the Trust, the complainants are legal heirs of deceased and the policy is in force on the date of death of member of Trust. Further, it is also not in dispute that, after the death of member of BLJ Trust, the complainants have put forward their claim under the said policy as legal heir of the deceased member. The complainant contended that after submission of their claim, the Ops did not settle their claim and hence they constrained to file this complaint. 

 

          In order to established the case of complainants, the complainants have produced material document i.e. Insurance Policy, I.D. Card and Death Certificate which is already marked as Ex.P-1 to Ex.P-3 and supporting affidavit by the Lrs of deceased Shivanappa wherein it is clearly stated that, the deceased Shivanappa U. Vannur was the beneficiary under the scheme of GPA Policy. The deceased’s beneficiary No.110826 as issued by the Op.No.1 and his ID Card No.DTW-1114503 and it is clearly shows that, the deceased Shivanappa was the member of Smt.Bhimavva Laxmanrao Jarakiholi Memorial Charitable Trust for that effect, the I.D. Card issued by Op.No.1 which is already marked and further the complainants have submitted the claim form before the Op.No.1 and same has been submitted before the Op.No.2 by the Op.No.1, for that the Op.No.2 has issued reply to the Op.No.1 and stated that, “ deceased Shivanappa  died due to drowning in the river while cross”. When, the Op.No.1 has paid huge premium amount of Rs.90,00,000/- for the benefit of members of BLJ Memorial Charitable Trust, then the Op.No.2 ought to have indemnified by giving  accidental death claim which is covered under the policy for a Sum of Rs.1,00,000/- each member for 3 Lakhs people.

 

          It is the specific case of the complainants that, while going to coolie work the incident took place and it is an accidental death and it is not a suicide as alleged by the OP.No.2 and even the OP.No.2 has not produced any material or cogent, document to show that, the said death is suicide. But, merely allegation as stated in the written version as well as in affidavit evidence of OP.No.2 did not sufficient to hold that, the said death is suicide, so in our consider view that, the contention stated in the written version and in affidavit evidence of Op.No.2 as no merit and it is not acceptable. Therefore, the repudiation claim of the complainants is not proper and not justified.

 

          It is the case of the Ops that deceased Shivanappa the member of Smt.Bhimavva Laxmanrao Jarakiholi Memorial Charitable Trust  is committed  suicide himself, then the question does not arise to pay the claim amount to the complainants and further case of the Ops that the deceased  knowing fully well about his age and physical health condition has taken unnecessary risk and met with unfortunate death which does not appear to be accidental one. But, it amounts to committing suicide which is not covered by the policy of insurance and further the Op.No.2, it is not liable to pay any amount to the complainants.

 

          But the above said contention of the Op.No.2 has not substantiated with cogent evidence  and material documents and even there is no any affidavit of Investigator to prove the said contention as mentioned in the repudiation letter dtd: 18.082014  as the investigator has confirmed that, “death due to weakness and not keeping well”, but mere production of repudiation letter vide letter dated 18-8-2014 i.e., Ex.P-7 and the Op.No.2 has neither produced investigator report as relied by the Op.No.2 nor lead the evidence of investigator by way of supporting affidavit evidence to substantiate their contention as alleged in the written version and affidavit evidence and further it is not clear that whether the said death is suicide or accidental death   that also not substantiated by the Op.No.2 by producing material evidence, but mere allegation is not suffice to hold that, the deceased commits suicide.  The said contention are not acceptable and not helpful to the Op.No.2. For that proposition of law, the Op.No.2 has failed to prove that it amounts to committing suicide which is not covered by the policy of insurance and further the Op.No.2, it is not liable to pay any amount to the complainants with cogent and reliable evidence, satisfactory and believable documents. 

 

          Therefore, now in the light of these undisputed facts, the only question which would arise for our consideration is “whether the Op.No.2 is justified in repudiating the claim of the complainants under the said insurance policy, on the above said ground?  Looking to the above observations and in our considered opinion that, the Op.No.2 is not justified in repudiating the claim of the complainants and which amounts to deficiency in service on the part of the Op.No.2, for the reasons discussed above. 

 

            It is important to note that, when the Op.No.2 alleged about suicide not accidental death, the burden of proving the material facts as alleged in the written version is lies on the Op.No.2.  So, it is for the Op.No.2 to prove the same with cogent evidence and material documents, which would go to establish that, the deceased death is caused due to weakness and his health condition and commit suicide, then only the repudiation by the Op.No.2 is to be considered as proper and justified. It is the duty of the Op.No.2 to substantiate the contention and in order to prove the same, the Op.No.2 has lead the evidence of RW1, RW1 is the Divisional Manager at Belagavi, who has stated in the self-interested affidavit that, the deceased victim knowing full well about his health condition and age has taken unnecessary risk and met with unfortunate death which does not appear to be accidental one, but it amounts committing suicide which is not covered by the insurance policy,  this contention of the OP.No.2 has no merits as the Op.No.2 has not substantiated the contention raised by themselves, mere pleading in affidavit and relying the FIR, Complaint and finding contradict version of the complainants are not sufficient to construe the deceased death is suicide as alleged by the Op.No.2 and there is no any single supported documents and affidavit evidence to hold that the said contention are believable, it has no evidentiary value in evidence Act. Therefore, the repudiation is not proper and justifiable, for that proposition of law, we would like to refer a reported decision
 I  (2015) CPJ 7 (Chattisgarh) wherein the Hon’ble State Commission has observed that the burden of proving that the complainants have mis-represent or fraudulently suppressed the material fact was on insurer and it is duty lies on the OP.No.2 to disprove the same.

 

           So in the instant case the insurer has not put-forth and proved his burden and OP.No.2 has not proved his contentions taken in the written version as well as in affidavit evidence.  Therefore, the above referred decision is an aptly applicable to the case in hand.  Further no doubt, it is true that the deceased died accidental one while crossing river. When such is the situation how could have the insurer/OP raised such untenable questions regarding death of the BLJ trust member at the time of settling the claim, which is not sustainable in the eye of law. Therefore, in our considered opinion that, the repudiation by the Op.No.2 is not justified and not proper.

 

 

          Moreover, the case of the Op.No.2 that, the deceased victim knowing full well about his age and physical health condition has taken unnecessary risk and met with unfortunate death which does not appear to be accidental one. But, it amounts to committing suicide which is not covered by the policy of insurance and further the Op.No.2 submits that, as the risk of the victim deceased is not covered under the policy in question, it is not liable to pay any amount to the complainants. To substantiate the contentions stated above, the Op.No.2 has filed affidavit evidence except affidavit evidence there is no any material to show that, the deceased death due to weakness and not keeping well, for that proposition there is no any cogent document to hold that, the deceased was weak and not healthy. So, under such circumstances, we are of the consider view that, the Op.No.2 has failed to established that, at the time of death Shivanappa was weak and committed suicide.  

 

In the light of above observation, we are of the consider opinion that, there is a deficiency of service on the part of OP.No.2 for not settling the claim of the complainants. So, it would be proper to award a sum of Rs.1,00,000/- which is cover for each members of the BLJ Memorial Charitable Trust as per Policy, it is evident from record produced by the complainants which is already marked as Ex.R-2 and the same has been produced by the Op.No.2. Therefore, in our consider view, as per GPA Unnamed Policy Schedule and the said policy is inforce at the time of death of deceased Shivanappa.     

 

Now our considered opinion, we have no hesitation to hold that, the OP/Insurance Company No.2 is to be held liable to pay Rs.1,00,000/- as per policy and further the complainants are entitled for mental agony and costs of the proceedings for Rs.2,000/-.  Accordingly, we answer Point No:1 in the Affirmative and proceed to pass the following:

 

O R D E R

 

For the reasons discussed above, the complaint filed by the complainants U/s.12 of the Consumer Protection Act, 1986 is hereby partly allowed with costs. The claim against Op.No.1 is dismissed.

 

           The Op.No.2 is ordered to pay a sum of Rs.1,00,000/- towards accidental death cover to the member of BLJ trust under the policy bearing No.472590/48/2014/35 and beneficiary No.110826 under I.D. Card No.DTW-1114503 to the complainants.

 

          The OP.No.2 is ordered to pay a sum of Rs.2,000/- towards mental agony and cost of the proceedings.

 

          The OP.No.2 is granted 10 weeks time for compliance of this order, failing which liable to pay interest @ 8% p.a. from the date of complaint i.e. 20.07.2015 till its realization. 

 

             (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 20^th day of June, 2017).

 

 

 

Sri. A.G.Maldar,   President.

Smt.J.S. Kajagar,    Lady Member.