CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM.

Present

Sri. Santhosh Kesavanath P. President

                                                                                                                                Sri. K.N. Radhakrishnan, Member

 

CC No.386/09

                                                       Saturday the 26^th day of November, 2011

 

Petitioners                                                        : Alice,

                                                                           Manchayil House,

                                                                           Arpookara Now residing at

                                                                           Kottathiyil House,

                                                                           Kanakkary PO,Athirampuzha

                                                                           Kottayam.

                                                                         2) Bindhu

                                                                             do-do-do

                                                                         3) Sindhu,

                                                                              Thavalakuzhiyil House,

                                                                              Kanakkary PO, Kottayam.

                                                                           4) Manju,

                                                                               Alackaparambil House,

                                                                               Attappallam PO, Kumily.

                                                                           (Adv. V.R.Raveendran)

 

                                                                     Vs.

Opposite party                                                 : The Manager,

                                                                         Cholamandalam,

                                                                          M.S.General Insurance,

                                                                           M.C.Rd, Thirunakara, Kottayam.

                                                                        2) The General Manager,

                                                                             Cholamandalam,

                                                                            M.S.General Insurance,

                                                                            1^st Floor, Plot No.6, Pusa Raod,

                                                                            Near Metro Pillar, No.81,

                                                                            New Delhi-100005.

                                                                            (Adv.Agi Joseph)    

                                                                       3) B.S.N.L Ltd CATO(TR)

                                                                           Kottayam SSA,

                                                                           Kottayam Telecom Dist,

                                                                           Kottayam.

                                                                         (Adv.Francis Thomas)

 

                                                                        ORDER

 

            Case of the petitioner, filed on 23/12/09, is as follows:-

            Petitioners are the legal heirs of late M.M.Baby @ Joseph, who died on 26/03/09, due to an accident happened during the course of his employment under the Food Corporation of India, Kottayam. The said Baby was the subscriber of land phone No.2594184 under the 3^rd opposite party. The 1^st and 2^nd opposite party issued Group Personal Accident Policy to the 3^rd opposite party covering the land phone subscribers for the sum insured at Rs.50,000/- for accidental death and permanent total disablement. During the policy period the diseased M.M.Baby, a Head load Worker, while keeping the articles of carry bags in Godown of F.C.I. fall and sustained serious injuries and died on hospital. Petitioner duly submitted the claim to the 1^st opposite party on 16/5/09. Since the opposite parties did not care to settle the claim. Petitioner issued a lawyer’s notice to the opposite party on 21/10/09. Both opposite parties received the notice. Opposite party 1 and 2 sent a reply alleging that the time limit for submission of claim shall be 60 days from the date of occurrence of accident. According to the petitioner he submitted the application to the 3^rd opposite party within 60 days. Petitioner states that non settlement of the claim amounts to deficiency in service. So, she prays for a direction to 1^st opposite party to settle the claim of the petitioner for the sum assured with 12% interest from the date of submission of the claim till realisation. Petitioner also claims compensation in the tune of Rs. 10,000/- and cost of the proceedings.

            1^st and 2^nd opposite party filed joint version contenting that petition is not maintainable. According to 1^st and 2^nd opposite party the liability of the insurer is subject to various terms and conditions and exclusion of policy. Petitioners had not submitted a claim form within the time limit of 60 days as provided in BSNL bills, sent to the customer/subscriber. Petitioner had intimated the demise of the BSNL connection holder only on 1/7/09, for the alleged death dtd 26/3/09. As per the Memorandum of Understanding with BSNL the claim intimation is to be submitted within 60 days from the date of alleged loss. So claim of the petitioners is repudiated as per letter dtd 7/8/09. Further more opposite party contented that death of the petitioner is not an accidental one and is not covered under above said policy. So opposite party contented that repudiation of the claim is legal and valid and there is no deficiency in service on their part and they pray for dismissal of petition with their costs.

            3^rd opposite party entered appearance and filed version contenting that petition is not maintainable. According to 3^rd opposite party petitioner is not entitled to get any relief.   The premium of 1^st and 2^nd opposite party is paid by the corporate office of 3^rd opposite party. The toll free number of 1^st and 2^nd opposite party was intimated to the subscribers by 3^rd opposite party. As per agreement, the legal heirs must contact the toll free number given in the telephone bill and register their claim directly to the insurance company within 60 days. According to the 3^rd opposite party there is no deficiency in service on their part and they pray for dismissal of the petition with their costs.

Points for determinations are:

i)                    Whether there is any deficiency in service on the part of the opposite parties?

ii)                   Reliefs and costs?

Evidence in this case consists of affidavit filed by both parties Exts.A1 to A9 documents on the side of the petitioner and Exts.B1 to B3 documents on the side of the opposite party.

            The crux of the case of the petitioner is that the claim of the petitioner, with regard to the Group Insurance, was repudiated by the 1^st and 2^nd opposite party on the ground that the claim was not intimated within 60 days from the date of loss. Opposite party produced a copy of the repudiation letter said document is marked as Ext.B2. In Ext.B2 it is stated that the date of loss is 26/3/09, the intimation was given to the insurer on 1/7/09. Further more opposite party in their version contented that death of the insured is not an ‘accidental death’.

            The first question is to be decided whether the petitioner submitted the claim within time limit?   The condition of the policy produced by the opposite party is marked as Ext.B1. Nowhere in Ext.B1 is policy condition there mentioning of 60 days time limit. As clause (9) in Ext.B1 it is stated that completed claim form with written evidence of loss must be furnished to the company within 30 days after the date of such loss. Failure to furnish evidence within such time as required shall not invalidate or reduce the claim if the insured satisfies that it was not reasonably possible to do so within such time. In any event, no proof furnished beyond one year from the date of loss shall be accepted. So as per the policy condition the claim has to be furnished beyond one year from the date of loss. Even though in a copy letter dtd 6/3/09 issued by the 1^st and 2^nd opposite party to the 3^rd opposite party it is mentioned that the time limit for submission of the claim will be within 60 days. In our view that letter does not will become part of the policy conditions as far as the insurer and insured is concerned. In the reply letter issued by the 1^st and 2^nd opposite party to the petitioner (Reply to the legal notice produced is marked as Ext.A6). In Para five of Ext.A6 opposite party admitted that the claim form is dtd 16/5/09. 3rd opposite party has not denied the specific case of the petitioner with regard to the submission of the claim on 16/5/09. Petitioner also filed an affidavit of one witness named Sunil Thomas. Witness also sworn that claim was submitted on 16/5/09to the BSNL. So from the probabilities we infer that the claim form is submitted on 16/5/09. Even if it is assumed that there is time limit in the Memorandum of Understanding between the insurer and 3rd opposite party.   It can be seen that petitioner within 60 days submitted the claim form.

            Next question be decided is whether the death of the insurer can be treated as an accidental death? Opposite party produce the postmortem certificate of the petitioner said documents is marked as Ext.B3. In Ext.B3 it is stated that the death of insured is “death due to occlusive coronary artery disease”. According to the petitioner the death is caused while diseased was carrying rice bundles in his head at his work place. On 26/3/09 during the course of employment while walking through a plank diseased fell down and sustained severe injuries and died during his way to hospital on the same day. The term “accident” is defined in Ext.B1 policy as a sudden, unforeseen and unexpected physical event caused by external, violent and visible means. In our view words as “sudden”, “violent” , “external”, “visible” have been given wide meaning, practically co-extensive that the way “accident” or accidental. Violent “does not necessarily imply actual violence. Even due exertions due to head load work can be considered as violence by external means. Violent is merely used in anti-thesis to “without any violence at all”. In our view death during the course of employment of a head load worker is also considered an accidental death caused as a sudden, unforeseen and unexpected physical event by external violence and visible means. From Ext.A7 FIR it can be seen that the death is during the course head load work of the insured. The exertion due to the work and the resultant cardiac arrest in our view can be considered as an accidental death. So there is deficiency in service on the part of the insurance company in repudiating insurance claim put forward by the petitioners, being the legal heirs and wife of the diseased. So point no. 1 is found accordingly.

            In view of the findings in point no.1 petition is allowed. So the 1^st and 2^nd opposite party are ordered to pay the petitioner the sum assured that is Rs.50,000/- with interest @ 9% from the date of filing of the petition till realisation. Since interest is allowed no separate compensation is ordered. Opposite party 1 and 2 are ordered to pay an amount of Rs.2000/- as litigation cost. Order shall be complied with within one month of the receipt of a copy of the order.

Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 26^th day of November, 2011.

 

Sri. Santhosh Kesavanath P. President Sd/-                            

Sri. K.N. Radhakrishnan, Member                    Sd/-

 

Appendix

                       

Ext.A1-receipt dtd 7/1/09

Ext.A2-Postmortem certificate

Ext.A3-lawyers notice dtd 21/10/09

Ext.A4series postal receipts

Ext.A5 series postal AD cards

Ext.A6-Reply dtd16-11-09

Ext.A7-copy of FIR

Ext.A8-Copy of letter dtd 7/8/09issued by the 1^st and 2^nd Op to the petitioner

Ext.A9-BSNL bill dtd 7/10/09

Ext.B1-Terms and conditions of policy

Ext.B2-Repudiation letter

Ext.B3-Postmortem certificate

By Order,

 

Senior Superintendent.