The Manager, ICICI Lombard General Insurance Company Ltd., Raichur V/S Zaheda Begum W/o. Late Zinauddin, Raichur - Consumer Court Case

Karnataka

Raichur

CC/10/77

Zaheda Begum W/o. Late Zinauddin, Raichur - Complainant(s)

Versus

The Manager, ICICI Lombard General Insurance Company Ltd., Raichur - Opp.Party(s)

Sri. B.S. Patil

28 Feb 2011

ORDER

Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/77

Zaheda Begum W/o. Late Zinauddin, Raichur Liyakath S/o. Late Zinauddin, Raichur						...........Appellant(s)
Vs.
The Manager, ICICI Lombard General Insurance Company Ltd., Raichur						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Pampapathi, President:- This is a complaint filed by complainant Nos- 1 & 2 against the opposite ICICI Lombard General Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for to direct the opposite to pay Rs. 2,00,000/- towards Insurance amount and Rs. 3,00,000/- towards mental agony with other reliefs as deems fit to the circumstances of this case. 2. The brief facts of the complainants case are that, complainant No-1s husband Zinauddin was holding Insurance Policy from opposite by covering Rs. 2,00,000/- personal accident benefit along with risk of his lorry bearing No. KA-37/5447. He was driving the vehicle with valid DL on 23-05-10 at 3:30 PM with paddy load, on Hunsagi Raichur Road, he died accidentally by falling after stopping the lorry and at that time he was washing the above said vehicle. Thereafter complaint was filed by another lorry owner, police investigated the matter and registered a case U/sec 174 Cr.P.C. Complainant No-1 being the wife of Zinauddin and complainant No-2 is their son filed claim petition before the opposite, but opposite shown its negligence in settling their claim, in spite of oral and written requests, therefore, they have filed this complaint for the reliefs as prayed in it. 3. The Opposite Insurance Company appeared in this case, filed its written version, by denying the entire case of complainant. Deceased Zinauddin was standing in the bridge of Hirehalla and at the time calling his son Nissar Ahmed to come on the road from Halla, he slipped his legs and fell into the Nala, he sustained severe head injuries and died on the spot. Therefore, police have registered a case U/sec. 174 Cr.P.C investigated the matter and closed the case. As such the said accident is no way reached to coverage of the Insurance Policy accordingly, it prayed for to dismiss the complaint among other grounds as stated in its written version. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determinations are that: 1. Whether the complainant Nos. 1 & 2 proves that, the husband of complainant No-1 and father of complainant No-2 Zinauddin was the owner of the lorry bearing No. KA-36/5447 insured with opposite Insurance Company with coverage of risk of the lorry and personal accident benefit. 2. Whether the complainant Nos. 1 & 2 further prove that, on 23-05-10 at 3.30 PM on the said Hunsagi Raichur Road he was driving the lorry with valid driving licence to drive it, while Insurance Policy was inforce he died accidentally by falling to ground after stopping the vehicle and at that time he was washing the vehicle ( as stated by the complainants in Para-3 of their complaint) and thereafter police complaint was lodged, thereafter complainant Nos. 1 & 2 filed their claim petition before the opposites with records, but opposite shown its negligence in settling their claim inspite of their oral and written requests and thereby opposite found guilty under deficiency, in its service. 3. Whether complainants are entitled for the reliefs as prayed in their complaint.? 4. What order? 5. Our findings on the above points are as under:- (1) In the Affirmative. (2) In the Negative. (3) In-view of the findings on Point No. 2, complainants are not entitled for any one of the reliefs, as prayed in their complaint. (4) In view of the findings on Point No. 2 & 3, we proceed to pass the final order for the following : REASONS POINT NO.1:- 6. The relationship of the complainant Nos. 1 & 2 interalia is not in dispute. The relationship of the complainant Nos. 1 & 2 with deceased Zinauddin is also not in dispute. Insurance Company is not disputing the fact of coverage of the Insurance Policy of the said vehicle. Opposite is disputing the fact that complainants are the only legal heirs of deceased Zinauddin. 7. We are dealing with consumer complaint and not dealing with the case of the legal heirs of deceased. For the purpose of this case, it is sufficient to note that, complainant Nos. 1 & 2 are the consumers and they are entitled for to file this complaint, accordingly we have not accepted the submissions of the learned advocate for opposite to dismiss the complaint, as some other legal heirs of deceased are not on record, accordingly we answered Point No.1 in Affirmative. POINT NO 2:- 8. This point is the material point for to decide this case. To prove the case of complainants, affidavit-evidence of complainant No-1 was filed, who is noted as PW-1. The documents Ex.P-1 to Ex.P-4 are marked. Complainants filed answers to the interrogatories filed by opposite Insurance Company. On the other hand, affidavit-evidence of the Manager legal of opposite Insurance Company was filed, he was noted as RW-1. The documents Ex.R-1 to Ex.R-3 are marked. 9. As per the Insurance Policy and liability as covered under the policy are the risk of the vehicle and personal accident benefit of Zinauddin. The personal accident benefit covered under policy means, if death of Zinauddin occurs in the said vehicular accident while driving the said vehicle or in the other related circumstances attached to the said vehicle. 10. Keeping in view of this legal aspect of the coverage of the policy of the said vehicle, we have to see the facts pleaded in Para-3 of the complaint. In the said Para complainants have stated that, Zinauddin died accidentally by falling to ground after stopping the vehicle, and at the same time it is stated as he was washing the above said vehicle. These facts clearly establishes the fact that, there are two separate incidents. The first incident is that, Zinauddin accidentally fell suddenly to the ground after stopping the vehicle. The second one is contrary to the said fact, as he, fell down to ground when he was washing the above said vehicle. However we have gone through the documentary evidences produced by the complainant themselves which is Ex.P-1, the report filed by the police U/sec. 174 Cr.P.C, regarding the incident happened at that time. The police have recorded the statements of the complainant by name Mohd. Yusuf who is eye witness to the said incident, at same time they have also recorded statements of eye witnesses Mohd. Yusuf, Nissar Ahmed, Liyakat, Yamunappa and others. The entire investigation done by the police vide Ex.P.1, discloses the fact that, at the time of incident i.e, on 23-05-10 Mohd. Yusuf along with his lorry and deceased Zinauddin and his lorry were stopped on the road and went inside the Hirehalla near Hebbal.K. for to take bath in the Nala. At that time Zinauddin came to road, he started calling his son by standing on the bridge of the Nala, at that time, he slipped his legs from the bridge and fell into the river from height and sustained head injuries and died on the spot. 11. In the circumstances stated above, the complainants have stated two incidents, which are not identical regarding the death of Zinauddin and the documents filed themselves Ex.P-1 shows the different incident, which is not identical to the incident pleaded in the complaint. In the circumstances stated above, we are of the view that, the said incident is not related to the insured vehicle and death is not related to the accident of the insured vehicle. The learned advocate for complainant took serious pain to convince us that, the accidental death includes un-natural death, we are not concerned to define accidental death and un natural death. We are only concerned to see that, whether Zinauddin died in the said vehicular accident or he died in related circumstances attached to the said vehicle, we are of the clear view that, from the evidences laid by the complainant as well as opposites referred above, the death of Zinauddin on the said date, time and place is not due to accident of the insured vehicle or it is not related to the circumstances out coming of the insured vehicle, accordingly, we have not agreed with the submissions made by the learned advocate for complainant and thereby we feel that, complainant Nos. 1 & 2 not approached this Forum with clean hands and thereby the allegations made by them are not sufficient to hold deficiency in service on the part of opposites, accordingly we answered Point No-2 in Negative. POINT NO.3:- 12. In view of finding on Point No-2, complainants are not entitled for any one of the reliefs as prayed in this complaint. POINT NO.4:- 13. In view of our findings on Point Nos. 2 & 3, we proceed to pass the following order: ORDER The complaint filed by the complainant Nos- 1 & 2 against opposite ICICI Lombard General Insurance Company Ltd., is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 28-02-11) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Pampapathi, President:- This is a complaint filed by complainant Nos- 1 & 2 against the opposite ICICI Lombard General Insurance Company Ltd., U/sec. 12 of Consumer Protection Act for to direct the opposite to pay Rs. 2,00,000/- towards Insurance amount and Rs. 3,00,000/- towards mental agony with other reliefs as deems fit to the circumstances of this case. 2. The brief facts of the complainants case are that, complainant No-1s husband Zinauddin was holding Insurance Policy from opposite by covering Rs. 2,00,000/- personal accident benefit along with risk of his lorry bearing No. KA-37/5447. He was driving the vehicle with valid DL on 23-05-10 at 3:30 PM with paddy load, on Hunsagi Raichur Road, he died accidentally by falling after stopping the lorry and at that time he was washing the above said vehicle. Thereafter complaint was filed by another lorry owner, police investigated the matter and registered a case U/sec 174 Cr.P.C. Complainant No-1 being the wife of Zinauddin and complainant No-2 is their son filed claim petition before the opposite, but opposite shown its negligence in settling their claim, in spite of oral and written requests, therefore, they have filed this complaint for the reliefs as prayed in it. 3. The Opposite Insurance Company appeared in this case, filed its written version, by denying the entire case of complainant. Deceased Zinauddin was standing in the bridge of Hirehalla and at the time calling his son Nissar Ahmed to come on the road from Halla, he slipped his legs and fell into the Nala, he sustained severe head injuries and died on the spot. Therefore, police have registered a case U/sec. 174 Cr.P.C investigated the matter and closed the case. As such the said accident is no way reached to coverage of the Insurance Policy accordingly, it prayed for to dismiss the complaint among other grounds as stated in its written version. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determinations are that: 1. Whether the complainant Nos. 1 & 2 proves that, the husband of complainant No-1 and father of complainant No-2 Zinauddin was the owner of the lorry bearing No. KA-36/5447 insured with opposite Insurance Company with coverage of risk of the lorry and personal accident benefit. 2. Whether the complainant Nos. 1 & 2 further prove that, on 23-05-10 at 3.30 PM on the said Hunsagi Raichur Road he was driving the lorry with valid driving licence to drive it, while Insurance Policy was inforce he died accidentally by falling to ground after stopping the vehicle and at that time he was washing the vehicle ( as stated by the complainants in Para-3 of their complaint) and thereafter police complaint was lodged, thereafter complainant Nos. 1 & 2 filed their claim petition before the opposites with records, but opposite shown its negligence in settling their claim inspite of their oral and written requests and thereby opposite found guilty under deficiency, in its service. 3. Whether complainants are entitled for the reliefs as prayed in their complaint.? 4. What order? 5. Our findings on the above points are as under:- (1) In the Affirmative. (2) In the Negative. (3) In-view of the findings on Point No. 2, complainants are not entitled for any one of the reliefs, as prayed in their complaint. (4) In view of the findings on Point No. 2 & 3, we proceed to pass the final order for the following : REASONS POINT NO.1:- 6. The relationship of the complainant Nos. 1 & 2 interalia is not in dispute. The relationship of the complainant Nos. 1 & 2 with deceased Zinauddin is also not in dispute. Insurance Company is not disputing the fact of coverage of the Insurance Policy of the said vehicle. Opposite is disputing the fact that complainants are the only legal heirs of deceased Zinauddin. 7. We are dealing with consumer complaint and not dealing with the case of the legal heirs of deceased. For the purpose of this case, it is sufficient to note that, complainant Nos. 1 & 2 are the consumers and they are entitled for to file this complaint, accordingly we have not accepted the submissions of the learned advocate for opposite to dismiss the complaint, as some other legal heirs of deceased are not on record, accordingly we answered Point No.1 in Affirmative. POINT NO 2:- 8. This point is the material point for to decide this case. To prove the case of complainants, affidavit-evidence of complainant No-1 was filed, who is noted as PW-1. The documents Ex.P-1 to Ex.P-4 are marked. Complainants filed answers to the interrogatories filed by opposite Insurance Company. On the other hand, affidavit-evidence of the Manager legal of opposite Insurance Company was filed, he was noted as RW-1. The documents Ex.R-1 to Ex.R-3 are marked. 9. As per the Insurance Policy and liability as covered under the policy are the risk of the vehicle and personal accident benefit of Zinauddin. The personal accident benefit covered under policy means, if death of Zinauddin occurs in the said vehicular accident while driving the said vehicle or in the other related circumstances attached to the said vehicle. 10. Keeping in view of this legal aspect of the coverage of the policy of the said vehicle, we have to see the facts pleaded in Para-3 of the complaint. In the said Para complainants have stated that, Zinauddin died accidentally by falling to ground after stopping the vehicle, and at the same time it is stated as he was washing the above said vehicle. These facts clearly establishes the fact that, there are two separate incidents. The first incident is that, Zinauddin accidentally fell suddenly to the ground after stopping the vehicle. The second one is contrary to the said fact, as he, fell down to ground when he was washing the above said vehicle. However we have gone through the documentary evidences produced by the complainant themselves which is Ex.P-1, the report filed by the police U/sec. 174 Cr.P.C, regarding the incident happened at that time. The police have recorded the statements of the complainant by name Mohd. Yusuf who is eye witness to the said incident, at same time they have also recorded statements of eye witnesses Mohd. Yusuf, Nissar Ahmed, Liyakat, Yamunappa and others. The entire investigation done by the police vide Ex.P.1, discloses the fact that, at the time of incident i.e, on 23-05-10 Mohd. Yusuf along with his lorry and deceased Zinauddin and his lorry were stopped on the road and went inside the Hirehalla near Hebbal.K. for to take bath in the Nala. At that time Zinauddin came to road, he started calling his son by standing on the bridge of the Nala, at that time, he slipped his legs from the bridge and fell into the river from height and sustained head injuries and died on the spot. 11. In the circumstances stated above, the complainants have stated two incidents, which are not identical regarding the death of Zinauddin and the documents filed themselves Ex.P-1 shows the different incident, which is not identical to the incident pleaded in the complaint. In the circumstances stated above, we are of the view that, the said incident is not related to the insured vehicle and death is not related to the accident of the insured vehicle. The learned advocate for complainant took serious pain to convince us that, the accidental death includes un-natural death, we are not concerned to define accidental death and un natural death. We are only concerned to see that, whether Zinauddin died in the said vehicular accident or he died in related circumstances attached to the said vehicle, we are of the clear view that, from the evidences laid by the complainant as well as opposites referred above, the death of Zinauddin on the said date, time and place is not due to accident of the insured vehicle or it is not related to the circumstances out coming of the insured vehicle, accordingly, we have not agreed with the submissions made by the learned advocate for complainant and thereby we feel that, complainant Nos. 1 & 2 not approached this Forum with clean hands and thereby the allegations made by them are not sufficient to hold deficiency in service on the part of opposites, accordingly we answered Point No-2 in Negative. POINT NO.3:- 12. In view of finding on Point No-2, complainants are not entitled for any one of the reliefs as prayed in this complaint. POINT NO.4:- 13. In view of our findings on Point Nos. 2 & 3, we proceed to pass the following order: ORDER The complaint filed by the complainant Nos- 1 & 2 against opposite ICICI Lombard General Insurance Company Ltd., is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 28-02-11) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.