IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 28th day of January, 2016
Filed on 10.05.2011
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.162/2011
between
Complainants:- Opposite Parties:-
1.Sri. Abraham 1. The New India Assurance Co. Ltd.
Undappara Roadarikath Ernakulam, Regional Office
Panangodu P.O. Kandamkulathy Towers, M.G. Road
Aryanad, Nedumangad Kochi, Represented by its Manager
2.Smt.R.Usha, W/o Abraham 2. The New India Assurance Co. Ltd.
-do- -do- Salim Building, Near Head Post Office
N.C. Road, P.B. No. 77, Changanacherry
3. Aneesha, D/o Abraham Kottayam, Represented by its Manager
-do- -do- (By Adv. A. Hemalatha – for Opposite
(By Adv. Sinu.P.) parties 1 and 2)
3. Fr. Vicar, St. George Forane Church
Edathua, Alappuzha
(By Adv. George Mathew)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The matter was heard by the Hon’ble District Forum and passed a one line order dated 31.01.2012 as “allowed”. Thereafter the case was remanded by the CDRC to the Forum for hearing both parties and to pass a detailed order. Notice issued only against the first complainant and the opposite parties. The notice sent against the first complainant returned as unclaimed. Since there is no representation the complaint was dismissed for default. But thereafter the complainants filed a petition stating the Forum had not communicated any information to the second and third complainants and had they got any information about the posting date definitely appeared before the Forum for hearing. The petition was allowed and opportunity given to both parties for arguing the matter.
2. The case of the complainant is as follows:-
The first complainant is the father of one Anildas who died in the Pampa River at the time of his pilgrimage for the St. George Forane Church, Edathua. The deceased Anildas was died by drowning in the Pampa River on 6.5.2007. The dead body is recovered from the river which is within 200 meters distance from the Church. Police registered an FIR as crime No.44/07. The church and its premises were insured in the second opposite party. All the pilgrims who came to the third opposite party at the time of pilgrimage were included in the insurance and have policy coverage. The complainants approached the first and second opposite parties to pay the amount of insurance. But they evaded the payment by stating lame excuses. The above said acts of the first and second opposite parties are deficiency in service. The complaint is filed for realizing an amount of Rs.5 lakhs with interest from the first and second opposite parties.
3. The version of the opposite parties 1 and 2 is as follows:-
There is no deficiency in service on the part of the opposite parties. The complaint is bad by law of limitation. The second opposite party issued a “Public liability Non-Industrial Risk” Policy to the third opposite party for Rs.5,00,000/- covering All the Buildings, Temporary Sheds and Stall, Men and all materials stored in the “Festival Area around the Church premises and College ground”. The policy number is 760102/81/07/0000000724 dated 24.4.2007 from 27.4.2007 to 14.5.2007. The allegation of the complainant that his son died due to drowning in the Pampa River while he was bathing which is 200 meters away from the away from the Edathua Church is not covered under the policy because Pampa River is far away from the festival area. The alleged death was happened away from the policy coverage area and the alleged cause of death is not due to the negligent act of the third opposite party.
2. Notice issued against the third opposite party was served but they did not turn up.
3. The complainant filed proof affidavit. The documents produced were marked as Exts.A1 to A7. The opposite party 1 and 2 also filed counter affidavit and proof affidavit.
4. The points came up for considerations are:-
- Whether the complaint is barred by limitation?
- Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainants are entitled to get relief and cost?
5. Point No.1:- According to the complainant the cause of action arose on 7.5.2009 when the claim under the policy was repudiated by the opposite parties 1 and 2 by the letter dated 7.5.2009. The complaint was filed on 10.5.2011. According to the complainant there is a delay of 4 days in filing the complaint hence they filed petition for condoning the delay. According to the opposite parties, the complaint is bad by law of limitation. In a decision reported in CPR 2013(1) page No.488 Hon’ble National Commission stated that, “Period of limitation would run action from date of repudiation and would not remain confined to date of loss.” In the instant case the claim of the complaint was repudiated on 7.5.2009, hence the period of limitation run from 7.5.2009. Since the complaint filed on 10.5.2011, there is a delay of 4 days the reason stated in the delay condonation petition for containing the delay is satisfactory. Hence we are of opinion that the complaint is not barred by limitation. Point No.1 answered accordingly.
6. Point No.2 & 3:- It is an admitted fact that the second opposite party issued a “Public liability Non-Industrial Risk” policy to the third opposite party for Rs.5 lakhs covering “All the Buildings, Temporary and Stall, Men and all materials stored in the “Festival Area around the Church premises and College ground.” According to the first complainant his son died by drowning in the Pampa River while he was bathing. In order to substantiate his allegation complainant has produced the FIR which marked as Ext.A1. In the Ext.A1, it is stated that, “18 hbÊpÅ A\nÂZmkv Snbm\qw Snbmsâ Iq«pImcpsam¶n¨v FSXzm ]Ånbn XoÀ°mS\¯n\p h¶tijw Ipfnbv¡p¶Xn\mbn FSXzm ]Ånbn \n¶pw 200 aoäÀ Ing¡pamdn ]¼bmän 6.5.2007 XobXn sshIn 4.45 aWntbmSpIqSn Ipfn¨psImncp¶ kabw F§ns\tbm Bg¯nepÅ ]¼bmän XmWv acWs¸«p t]mbncn¡p¶p.” According to the opposite parties 1 and 2 since the incident took place in Pampa River which 200 meters east to the church premises the incident happened is not covered as per the policy. Ext.A3 is the Public liability Non-Industrial Risk policy issued by the opposite parties 1 and 2under the title covered it is stated that, “All the Buildings, Temporary Sheds and Stall, Men and all materials stored in the Festval Area around the Church premises and in College ground and also its pilgrims and illuminations etc. College Ground (St. Aloysius College, Edathua) under Public liability.” So it is clear from that the policy is covering all its pilgrims. From Ext.A1 it is clear that the deceased Anildas belonged to Trivandrum came to the church as a pilgrim. The deceased Anildas was one among the 40 pilgrims who belong to Trivandrum and they were visiting various pilgrim centers like Malayattoor Church etc. and as a part of their pilgrimage, they reached Edathua Church. Unfortunately along with certain friends deceased Anildas went for bath in the Pampa River nearby Edathua and drowned to death. The Edathua Church is situated on the bank of Pampa River and the accident occurred in the Pampa River within a visible distance of 200 meters from the Church. The unfortunate death occurred solely because of his visit at the Edathua Church as a pilgrim. Since the policy issued by the opposite parties 1 and 2 covered all the pilgrims, we are of opinion that the complainants are entitled to get the insured amount from the opposite parties 1 and 2. Hence the repudiation of the claim of the complainants from the opposite parties by the letter dated 7.5.2009 is not justifiable. The act on the part of the opposite parties 1 and 2 amounts to deficiency in service. Point No.2 answered accordingly.
In the result, the complaint is allowed. The opposite parties 1 and 2 are directed to pay Rs.5,00,000/- (Rupees five lakhs only) with 8% interest from the date of complaint till realization. Since the primary relief is granted no further amount towards compensation and costs. The order shall be complied by the opposite parties 1 and 2 within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 28th day of January, 2016.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
Ext.A1 - Copy of the FIR
Ext.A2 - Copy of the Death Certificate
Ext.A3 - Copy of the Policy
Ext.A4 - Letter dated 3.3.2009
Ext.A5 - Letter dated 1.4.2009
Ext.A6 - Letter dated 7.5.2009
Ext.A7 - Copy of the Postmortem Report
Evidence of the opposite parties:- Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
