BEFORE THE ADDITIONAL BENCH DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MYSURU.
Consumer Complaint (C.C.)No. 1055/2016
Complaint filed on 27.01.2016
Date of Judgement.23.06.2017
PRESENT : 1. Shri Ramachandra M.S., B.A., LL.B.,
PRESIDENT
2. Shri Thammanna,Y.S., B.Sc., LL.B.,
MEMBER
Complainant/s : 1. Sri. Rachachari,
S/o Late Guruvaiah,
Aged about 58 years,
2.Smt. Yashodha,
W/o Sri. Rachachari,
Aged about 54 years,
3. Smt. Shantha K.R.
W/o Sri. Lokesh .K.P
Aged about 42 years,
# 1 to 3 are residing at
304, opp. KHB colony,
Hunsur main road,
Hootagalli, Mysuru-18.
4. Smt. K.P. Bhagya,
W/o Sri. Ananda K.G.
Aged about 39 years,
Residing at
# 1521, 3rd cross,
New post office,
Guthalu Colony, Mandya.
(Sri. O.Shamabhat., Advocate)
V/s
Opposite/s : 1.The Oriental Insurance
Company Ltd.,
Divisional Office
# 1, CSI, Thejas Complex,
1st floor, Sayyaji Rao Road,
Mysuru-570001.
Represented by its
Senior Divisional Manager.
(Sri. Jaganatha suresh., Advocate)
Nature of complaint | : | Deficiency in service |
Date of filing of complainant | : | 27.01.2016 |
Date of Issue notice | : | 14.03.2016 |
Date of Order | : | 23.06.2017 |
Duration of proceeding | : | 1 years 4 Months 26 days |
SHRI RAMACHANDRA . M.S.,
PRESIDENT
JUDGEMENT
The complainant filed by the complaint Under Section 12 of Consumer Protection Act, 1986 against the opposite party seeking for the relief to settle the death claim amount and other reliefs.
2. The brief facts of the complaint is that the deceased Ramesh K.R. was working as medical representative in M/s Ayurvet limited since july 2014 on a monthly salary of around Rs. 13,083/- and about Rs. 10,000/- per month as expenses. It is he who was looking after all the family affairs. On 17.03.2015 at about 2.00 p.m., the deceased Ramesha was on duty as medical representative and after attending the work in Pandavapura he was coming to Mysuru in his motorbike Hero Honda bearing registration # KA -11-EB-5016. When he reached near LIC circle, the KSRTC bus came in rash and negligent manner and dashed against the deceased. By virtue of the accident Ramesha died on the spot. The accident was solely due to the rash and negligent act of bus case is registered against KSRTC bus driver. Accordingly N.R. Police have registered case against KSRTC bus driver under section 279, 338 and 304/A of IPC in Cr. # 36/2015, the said case is pending.
3.The deceased Ramesh K.R. had taken Insurance policy that is ‘Nagarika suraksha’ Individual policy cum motorized two wheelers package policy as per policy # 422490/31/2015/7035, DOI, 17.03.2015 The 2nd petitioner was shown as nominee in the policy. The deceased Ramesh. K.R paid required premium pertaining to the said two policies. The policy holder deceased Ramesh. K.R. died on17.03.2015 in the road accident as stated above. The death of the policy holder was duly intimated to the opposite party, the complainants being legal heirs submitted required claim form to the opposite party. Since from the said date of submission of the claim form there was no response till middle of October 2015. It is during third week of October 2015, the complainant received communication dated; 16.10.2015 from the opposite party repudiating the claim made by the complainants on the ground that the policy holder died under the influence of alcohol beyond 36.46%.
4. The repudiation of the claim under policy no 422490/31/2015/7035 is illegal on the face of it. There is no basis for repudiation of the claim and there was no suppression of any materials by the policy holder. The reference made in the reputation communication is without any basis and the same is based on the wrong information. The cause of death is not due to the fact mentioned in the repudiation letter. It is not the case of the opposite party that the death was due to the problem mentioned in the communication letter. Hence there was no basis to repudiate the claim after long delay. As per the rulings of the various High Courts and Hon’ble Supreme court, the delayed repudiation itself amounts to deficiency in service. The reason assigned in the repudiation letter is not tenable and cannot be the ground to reject the claim of the complainant. In the similar situation, the Hon’ble National Commission in Revision # 2433/2007 dated 11.07.2011, in the similar matter that too in the accident benefit policy held that specific clinical picture of alcohol intoxication also depends on the quantity and frequency of consumption and duration of drinking at that level and therefore mere presence of alcohol even above the prescribed limits is not the conclusive proof of intoxication further it was observed that there is no proof that there is nexus between the death caused in the accident and consumption of liquor. The alcohol concentration in that case was reported as 86.25 mg., Further, the alleged report was not admitted and the same is subject to proof in the criminal case. The case was registered only against bus driver. Hence the repudiation of the claim is illegal and against the settled legal principles. The illegal repudiation resulted in the miscarriage of justice.
5. The complainants being first class legal heirs are entitled to make claim and there is no dispute about the fact that the 2nd complainant is the nominee. There is explanation as to why they have taken more than eight months without any intimation. Hence the said long delay itself is sufficient to hold that there is clear deficiency on the part of the opposite party. When the insurance claim is to be settled at the earliest and in the present case even after repeated insistence from the complainants, there was no response from the opposite party. Now to cover up their latches, the opposite party has issued an endorsement illegally repudiating the claim.
6. By virtue of such illegal repudiation, the very purpose of taking insurance itself has been defeated and the opposite party is bound to settle the insurance claim made by complainants by withdrawing their earlier communication regarding repudiation. By virtue of such illegal repudiation, the complainants have been put into untold hardship and misery.
7. The repudiation of the claim is without any legal basis and it is only to avoid making payment. As such, there is clear deficiency in service on your part as defined under the Consumers Protection Act. There is no suppression of any material facts, to enable opposite party to repudiate the claim. Hence, the opposite party is liable to compensate complainants apart from settling the insurance claim.
8. Notice to the opposite party duly served represented by counsel filed version, by contending that the entire allegation of complaint is denied as false and the complainant is put strict proof of the same. This opposite party admits that the deceased K.R. Ramesh had taken policy from this opposite party under the policy no. 422490/31/2015/7035 valid from 16.12.2014 to 15.12.2015 covering his vehicle bearing the Reg. No. KA-11-EB -5016. It is submitted that the said insurance policy had a personal accident cover to driver cum owner of the vehicle. It is submitted that the liability of the opposite party under the said motor policy is subject to the terms and conditions attached to the said policy. It is submitted that the said Motor Policy is issued as per the Indian Motor Tariff Regulations and the premium is also collected as per the said regulations. It is submitted that the terms and conditions binds the parties and their representatives to the contract of insurance.
9. It is submitted that the complainants being the legal representatives of the deceased Ramesha had preferred a claim under the said Motor policy upon his death in the accident referred above. It is submitted that the opposite party immediately arranged for a Survey by appointing one Mr. Ravi, a surveyor and loss Assessor. It is submitted that the said surveyor has submitted his report dated 07.09.2015 and he has assessed the loss at Rs. 24,900/- it is submitted that the opposite party had also engaged one Sri.P.Linganna to investigate the case. It is submitted that the said Linganna has submitted that his report dated 13.10.2015 to the opposite party. It is further submitted that the opposite party obtained the copies of all the documents pertaining to the alleged accident from the jurisdictional police station. It is submitted that on the perusal of all the documents and the investigation report, it is found that there is violation of the policy conditions by the insured and as such the claim is not payable.
10. It is submitted that from the perusal of the Report of the Regional Forensic science Laboratory dated 31.03.2015, it is seen that the jurisdictional police had referred the blood samples of the said Ramesha, as it was found that he was under the influence of alcohol. It is submitted that the report reveals that on analysis of the blood samples it is detected the presence of Ethyle Alcohol which measured 36.46 mg/100 ml of blood. It is submitted that this clearly goes to show that he deceased was riding the motorcycle under the influence of alcohol at the time of the alleged accident which is violation of the policy terms and conditions and also violation of the motor vehicles Act.
11. It is submitted that “As per the endorsement attached to the insurance policy under serial No. 2 of IMT-15, No compensation shall be payble in respect of death or injury directly or indirectedly wholly such person is under the influence of intoxication liquor.”
12. It is submitted that it is an undisputed fact that the deceased insured Ramesha was under the influence of Alcohol at the time of the alleged accident, which is violation of the terms and conditions of the policy and the risk is not payable. Hence the opposite party repudiated a claim vide it s letter dated 16.05.2010 for gross violation of the policy conditions.
13. It is submitted that the complainants are not entitled to the total claim of Rs. 3,40,000/- with interest at the rate of 12% as claimed in the complainant.
14. This opposite party denies that the contentions raised in para 4 of the complaint. It is submitted that facts of each case is different. It is submitted that on the overall perusal of all the documents it is seen that the insured Ramesha was under the influence of alcohol at the time of the alleged accident.
15. It is submitted that there no deficiency of service on the part of the opposite party. It is submitted that under the contract of insurance this opposite party is not liable to pay any compensation in case of the insured dying under the influence of alcohol and as such the complaint is not maintainable and is liable to be dismissed.
16. Both the complainant and opposite party filed chief examination affidavit and documents, perused written argument, and heard oral arguments reserved for orders.
17. Heard arguments
18. The points that arise for our consideration are;
- Whether the complainant proves that there is deficiency in service on the part of opposite party by not settling the death claim and thereby prove they are entitle for the reliefs sought?
- What order?
19. Our answer to the above points is as follows;
- Point No.1: In the affirmative
- Point No.2: As per final order for the following;
REASONS
20. Point No.1:- It is an admitted fact that the complainant deceased K.R. Ramesh had taken insurance policy from opposite party under policy no 422490/31/2015/7035 dated 16.12.2014 and nominated 2nd complainant as a nominee in the policy with accident insurance personal accident coverage of Rs. 2,00,000/-
21. Further deceased K.R. Ramesh was working as a medical representative in M/S Axurvt Limited since 2014 on a monthly salary of Rs. 13,083, he was looking after the entire family. On 17.03.2015 deceased Ramesh ,while he was riding his two wheeler No KA 11-EB-5016 Hero Honda he met with the accident, he died on the spot. The case is registered with concerned police against opposite party vehicle KSRTC Bus. The legal heirs of deceased Ramesh has intimated the death to the opposite party company and approached the opposite party company for settlement of death claim. On 16.10.2015 the opposite party repudiated the claim of complainant on the ground that the policy holder died under the influence of alcohol and attempted suicide.
22. Further complainants have filed the complaint seeking for the relief to settle the death claim of Rs. 2,00,000/- As per the post-mortem report of deceased Ramesh. That the contents of alcohol in the blood sample is found and percentage and quantum of 36.46mg/100ml, ethyl alcohol is present as per RFSL report and the final report is that the death of deceased Ramesh is due to above injuries mentioned in the PM report. Are possible in road traffic accident and has resulted in death.
23. Further the complainant has pleaded that admittedly the deceased was under the influence of alcohol at the time of accident the complainant relied on Ruling of Hon’ble National Commission, Delhi in revision petition 2433/2007 in the similar set of facts that too in the accident benefit policy held that specific clinical picture of alcohol intoxication depends on the quantity and frequency of consumption and duration of drinking at that level and therefore mere presence of alcohol even above the prescribed limits is not the conclusive proof of intoxication.
24. Further it was observed that there is no proof that there is nexus between the death caused in the accident and consumption of liquor. The alcohol concentration in that case was reported as 86-25mg/100ml. When such being the case. The repudiation of the claim is illegal and against the settled principles. The illegal repudiation resulted in the miscarriage of justice. Further, there was no reason for the opposite party opine that it was attempted suicide.
25. Further the percentage, quantum of alcohol found in deceased blood sample is 36-46 mg/100ml as per the RFSL report mentioned in the post-mortem report of deceased Ramesh, The quantum of alcohol is lesser than the guide lines laid down, percentage i.e., 86-25 mg as per the guide lines laid down by the of Hon’ble National Consumer Redressal commission in its ruling in complaint.
26. Here the quantum of alcohol found in deceased blood sample is 36-46mg/100ml as per the RFSL report which is made mentioned in P.M. report which is way beyond the stipulated quantum of alcohol, as per the guide lines of Hon’ble National Commission.
27. Here in this case alcohol percentage found in deceased blood sample is 36-46/100ml and the ruling rendered Hon’ble National commission has given a guide lines of alcohol is up to 86.25mg /100ml when these two percentage of alcohol is compared, the deceased consumption of alcohol is well within the guide lines laid down by Hon’ble National Commission under such circumstances. As per the American medical examination definitions is higher than the alcohol concentration level of impairment is has also come in evidence that this by itself. Is not adequate proof that the deceased was intoxicated at the time of his death. The specific clinical picture of alcohol intoxication also depends on the quantity and frequency of consumption and duration of drinking at that level and therefore mere presence of alcohol even above the usually prescribed limits is not a conclusive proof of intoxication.
28. Further on perusal of FIR and accident spot sketch we can say that the alleged accident could have occurred due to rash and negligent driving of opposite party vehicle driver and dashed against the bike of deceased Ramesh by applying the guild lines and principles of Hon’ble National Commission, we can safely come to conclusion that by repudiating the claims of complainant the opposite party has committed deficiency in service.
29.From the above facts in our view, that even though the deceased Ramesh was under the influence of alcohol at the time of accident the cause for the alleged accident is not on account of his intoxication, we can say , the accident took place not due the consumption of alcohol. As per the records furnished, it is due to the rash and negligent driving of opposite bus driver.
30. According to this forum we answered Point no.1 in the partly affirmative and pass the following:
31. Point no.2:- For the above discussion we here by proceed to pass the following:
ORDER
- The complaint is hereby allowed in part.
- The opposite party is directed to pay a sum of Rs. 2,00,000/- to the complainant within 60 days of this orders. with interest at the rate 12% p.a from the date 16.10.2015 till payment.
- The opposite party is directed to pay Rs. 45,000/- towards the damages of vehicle to the complainant within 60 days of this order with interest at the rate 12% from the date 16.10.2015 till payment.
- The opposite party is directed to pay Rs.25,000/-towards the compensation and Rs. 10,000/- towards deficiency in service and Rs. 5,000/- towards cost of proceedings to the complainant within 60 days of this orders.
- In default to comply the above order opposite party shall pay interest on the said amount of 40,000/- at the rate of 10% p.a. from the date of order till payment made.
- In case of default to comply this order, the opposite party shall undergo imprisonment and also liable for fine under section 27 of
the CP Act, 1986.
- Give the copies of this order to the parties, as per Rules.
(Dictated to the stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on the 23rd June 2017)
Shri Thammanna Y.S., Shri Ramachandra M.S.,
Member. President.
