Tamil Nadu

South Chennai

CC/202/2021

P. Kushbu and 3 Others - Complainant(s)

Versus

The Managing Director, IFFCO Tokio General Insurance Co., Ltd. and another - Opp.Party(s)

Amar D. Pandiya

09 Jan 2023

ORDER

                                   Date of Complaint Filed : 21.09.2021

                                   Date of Reservation      : 27.12.2022

                                   Date of Order               : 09.01.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                 :  MEMBER  I 

                      THIRU. S. NANDAGOPALAN., B.Sc., MBA.,           : MEMBER II

 

CONSUMER COMPLAINT No.202 /2021

MONDAY, THE 9^th DAY OF JANUARY 2023

1. P. Kushbu,

    W/o late. G. Prabu,

 

2 P. Keerthish,

   S/o late. G, Prabu,

 

3. Priyasharshini,

    D/o. late. G. Prabu,

    (2^nd and 3^rd Complainant are Minors represented

    By their Next Friend and Natural Guardian their

    Mother the 1^st Complainant herein)

 

4. Rani,

    M/o. late. G. Prabu,

    All are residing at,

    Door No.61, Ambethkar Street,

    Koduvalli Village, Tiruvallur,

    Tamil Nadu 600 055.                                                                                                             ... Complainants `               

 

..Vs..

1. The Managing Director,

    IFFCO TOKIO General Insurance Co. Ltd,

    Registered Office: IFFCO Sadan,

    C1 Distt. Centre,

    Saket, New Delhi - 110 017.

 

2. The Manager,

    IFFCO TOKIO General Insurance Co. Ltd.,

    Service Office: No 28. (Old No 195),

    North Usman Road, T. Nagar,

    Chennai-600 017.                                                                                                                            ...  Opposite Parties

 

******

Counsel for the Complainant           : M/s. Amar D. Pandiya

Counsel for the Opposite Parties      : M/s. S. Stanley John

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Parties, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Party to pay a sum of Rs.15,00,000/- towards death claim of deceased G.Prabhu, under the personal accident policy as per the cover i.e., sum assured under the policy and to pay a sum of Rs.2,00,000/- towards damages and compensation for the mental agony and mental turmoil.

2.     The averments of Complaint in brief are as follows:-

        The Complainants are the legal heirs of the deceased G. Prabu. The Complainants are the wife, son, daughter and mother of the deceased G. Prabu. The deceased G. Prabu, was the owner of the Motor Cycle, bearing Registration No TN 12 W 8704, and the said Motor Cycle was insured at the servicing office of Opposite Parties, in Policy No M 571014 and as per the terms and conditions of the above policy it covers the personal accident for owner / driver for a sum of Rs 15,00,000/- for the period from 31.01.2019 to 30.01.2020. on 22.09.2019, when the sai G.Prabu was pillion rider in the said motor cycle the driver of the motor cycle lost the control over the motor cycle and skidded and both of them fell down from the said motor cycle and deceased sustained injuries and he also died on the same day. With regard to the above incident one Suresh, lodged the complaint on 23.09.2019, before the Inspector of Police, C-5. Vengal Police Station, Tiruvallur. The Inspector of Police, registered an FIR in Crime No 434/2019, based on the registration of the FIR the body of the deceased was sent for Post Mortem on 23.09.2019, at Department of Forensic Medicine, Stanley Medical College, Chennai, who conducted the Post Mortem Certificate in Pro No. 1498/19, in S. No. 1517. After receipt of all necessary documents from Government Authorities they have submitted their claim for Personal Accident claiming a sum of Rs. 15,00,000/- as per the policy issued by the Opposite Parties for the said Motor Cycle with the Opposite Parties. The Complainants submitted at till date the Complainants have not received any communication with regard to their claim, either accepting nor rejecting the claim submitted by the Complainants. The Complainants are not are aware about the legal formalities and legal terms therefore they were under impression that their claim will be settled and they have not consulted with any counsel til 15.09.2021. The 1^st Complainant on 20.09.2021, gave request in writing to the 2^nd Opposite Party to provide her a copy of letter of repudiating the claim. The opposite party has repudiated the claim by giving a reason that the deceased was under the influence of alcohol, therefore he has violated the terms and conditions of the policy. It is submitted that no where in the documents submitted by the complainant it is mentioned or found that the deceased was under the influence of alcohol, hence the rejection is not acceptable. The Opposite Parties have committed several acts of deficiency in service Viz, not settling the claim of Complainants, nor processed or settled the claim of the Complainants without any valid reason in the manner known to law, the Opposite Parties are liable to compensate for the deficiency of service under the Consumer Protection Act 15. Hence the complaint.

3. Written Version filed by the Opposite Parties in brief is as follows:-

The Opposite Parties submitted that one G.Prabhu is the absolute owner of the motorcycle bearing Regn No. TN-12-W-8704 and he had taken an Insurance Policy with the opposite parties vide Policy No. M 5710514 covering the period from 31.01.2019 to 30.01.2020. And the said insured had taken a Personal Accident Cover for him by paying a sum of Rs. 350/- and covering him for Rs.15,00,000/- in case of death by road accident while driving the above said motorcycle. The Policy issued by them is subject to the terms and conditions and to its limitation and exclusions. If there is any violation if any of the above said particulars and along with the Motor vehicle Act, then they cannot be held liable for any compensation whatsoever. The  allegations of the Complainant that said G.Prabhu was riding Pillion in the said motorcycle at the time of accident is not true. The said Prabhu was riding the motorcycle at time of accident. And furthermore it can be seen from the Accident Registrar that the deceased was under the influence of alcohol at the time of accident. The AR bearing No 0606127 states as follow: Alleged H/o RTA under influence of Alcohol skidded & fall down around 5 pm. etc". And it has been further noted that the person who brought the said Prabhu to the Hospital is shown as "Kushbu", the first Complainant herein. This opposite party submitted that also from the MVI Report of the above said motorcycle, it is clear that the said Prabhu was the rider of the motorcycle at the time of accident. The Complainants had failed look into the Accident Registrar, which self-explanatory. This opposite party in their repudiation letter dated 04.02.2021 they have clearly stated that since the deceased rode the vehicle under the influence of alcohol, he had violated the policy conditions and had also put the terms and conditions to which it applies. Viz., as follows:

"No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (1) intentional self injury suicide or attempted suicide physical defect or infirmity or (2) an accident happening whilst such person is under the influence of intoxicating liquor or drugs".

This Opposite Party had issued the repudiation letter to the 1^st Complainant through RPAD on 14.02.2021 itself. Hence prayed to dismiss the complaint.

4.The Complainants submitted their Proof Affidavit and Written Arguments. On the side of the Complainant, documents marked as  Ex.A-1 to Ex.A-11. The Opposite Parties submitted their Proof Affidavit and Written Arguments. On the side of Opposite Parties documents were marked as Ex.B-1 to Ex.B3.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Parties?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1 to 3:-

        The 1^st Complainant’s husband (late) G.Prabhu, was the owner of the Motor Cycle bearing Registration No.TN12W8704 as seen from Ex.A-2 being the Registration Certificate of the Two Wheeler issued in the name of the deceased G.Prabhu. The Motor Cycle was insured with the Opposite Parties for the period commencing from 31.01.2019 to 30.01.2020 vide Policy No.M 5710514 as per Ex.A-1. The said G.Prabhu was holding a valid driving license issued by the RTO, Ex.A-3. On 22.09.2019 while the deceased Prabhu was a pillion driver of the said Motor cycle the driver and the deceased Prabhu lost control on the Motor Cycle and fell down, where the said Prabhu died on the same day.  Immediately on complaint given by Mr.G. Suresh an FIR came to be lodged on 23.09.2019 by the Inspector of Police, C5 Vengal Police Station, Tiruvallur in Crime No.434/2019 as per Ex. A-4. Subsequently the Complainants had submitted claim form with the Opposite Parties along with necessary documents, as per Ex.A-9.  However the Opposite Parties had repudiated the claim of the Complainants on 04.02.2021 stating as follows “ no compensation shall be payable in respect of death or bodily injury directly wholly or in part arising or resulting from or traceable to (1) intentional self-injury suicide or attempted suicide physical defect or infirmity or (2) an accident happening whilst such person is under the influence of intoxicating liquor or drugs”.

        The Opposite Party relied upon the Accident Register,
Ex.B-2, though dated as 22.09.2019 in the clean copy in the photocopy of the accident register the date is not clear, where under the head “Nature of injury and treatment” is mentioned as follows:

“Alleged H/O RTA. Under influence of Alcohol and fall down around 5.00p.m at  Poochi Athibedu, Opposite Petrol Bunk.” Based on the entry made in the Accident Register the Opposite Party had repudiated the claim of the Complainant.

        The Opposite Party had failed to look into the First Information Report dated 23.09.2019 where it was specifically mentioned that Mr.Prabhu was a pillion driver and while the deceased Prabhu and one Mr.Parameshwaran was driving the vehicle, the Motor Cycle skidded and they both fell from the vehicle at Poochi Athipedu near RMK Petrol Bunk, where the Pillion driver deceased Prabhu succumbed to death on the same day in the FIR there is no mention about the consumption of liquor by the deceased Prabhu. Neither in the Postmortem Report Ex.A-10 the consumption of alcohol by the deceased finds place. Even in the Accident Register relied by the Opposite Party there is no specific mention about the consumption of alcohol by the deceased Prabhu. From the FIR it is clear that one Mr.Parameshwaran was driving the vehicle on the date of accident.

        The Opposite Party having come to a wrong conclusion that the deceased Prabhu was driving the vehicle under the influence of Alcohol, who skidded and fell down on the date of the accident. The documents submitted by the Complainant which are marked as Exhibits on the side of the Complainant would prove that the deceased Prabhu was a pillion rider who met with an accident on 22.09.2019. On the date of accident the Motor Cycle was having a valid insurance covering the personal accident for a sum of Rs.15,00,000/- which the Complainants are entitled, being the legal heirs of the deceased Prabhu as per the terms and conditions of the Policy marked as Ex.B-1.

        On considering the facts and circumstances of the case and  in view of the above discussions we hold that the Complainants are entitled for a sum of Rs.15,00,000/- towards death claim of the deceased under the  Personal Accident Policy Cover and a sum of Rs.50,000/- as compensation for the mental agony caused to the Complainant.  Accordingly, Point Nos.1 to 3 are answered.

In the result, the complaint is allowed in part. The 1^st and 2^nd Opposite Parties are jointly and severally directed to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) towards death claim of  the deceased under the Personal Accident Policy and to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) towards compensation for the mental agony caused to the Complainant along with cost of Rs.5,000/- (Rupees Five Thousand Only) to the Complainant, within 8 weeks from the date of receipt of this order failing which the amount of Rs.15,00,000/- shall carry interest @9% p.a from the date of receipt of this order till the date of realization.

          In the result this complaint is allowed.          

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 9^th of January 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

Ex.A1	28.01.2019	Copy of Policy period from 31.01.2019 to 30.01.2020 issued by Opposite Parties
Ex.A2	-	Copy of Registration Certificate for Motor Cycle bearing No.TN 12 W 8704
Ex.A3	28.02.2013	Copy of Driving licence issued in the name of G.Prabu, valid till 27.02.2033 issued by RTO
Ex.A4	23.09.2019	Copy of First information Report in Crime No.434 of 2019, issued by Inspector of Police
Ex.A5	23.09.2019	Copy of Post Morterm Certificate issued by Stanley Government Hospital
Ex.A6	17.10.2019	Death Certificate
Ex.A7	13.12.2019	Copy of M.V Report
Ex.A8	27.02.2020	Copy of Legal Heir Certificate
Ex.A9	-	Copy of claim Forms submitted by Complainants with the Opposite Parties
Ex.A10	20.09.2021	Copy of letter by the 1st Complainant to 2nd Opposite party
Ex.A11	-	Copy of letter of reputing the claim of Complainants by the Opposite Parties

 

List of documents filed on the side of the Opposite Parties:-

 

Ex.B1	31.01.2019	Insurance policy
Ex.B2	22.09.2019	Accident Register
Ex.B3	13.12.2019	MVI Report of Motorcycle bearing Regn.NoTN-12-W-8704

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT