PRESENT SRI P.V. NAGESWARA RAO, M.A., LL.M., PRESIDENT

Smt. Jestadi Aswarthamma @ Asirwadhamma,

W/o Late jestadi Yesanna, aged about 39 years,

Christian, Resident of Gudipadu Village, Duvvur Mandal,

Kadapa District.                                                                          ….. Complainant.

 

1) PACS Ltd., Duvvur, Rep. by its Secretary,

2) The General Manager, Kadapa

3) ICICI Lombard, General Insurance Co. Ltd., Rep. by its

 

 

This complaint coming on this day for final hearing on 5-8-2010 in the presence of Sri M. Nagi Reddy, Sri J. Sudarshan Reddy and S. Vasu Dev, , Advocates for complainant and Sri D. Rajasekhar Reddy, Advocate for R3 and R1 & R2 called absent and set exparte and upon perusing the material papers on record, the Forum made the following:-

 

 

 

1.                Complaint filed under section 12 of the Consumer Protection Act 1986.

 

2.                The brief facts of the complaint are as follows:- The complainant was the wife of deceased J. Yesanna.  He had a membership in Primary Agriculture Cooperative Society, Duvvur with Kisan Credit Card and passbook bearing No. 4297.   The deceased Yesanna lived with cultivation.   He availed a loan from R1 under account No. 752 on 7-4-2007 of Rs. 6,000/-. The R1 received a JPA policy from R3 for covering the risk of accidental death benefit to the agricultural loan holders. The insurance premium was also paid to R3 by R1 on the date of loan on 7-4-2007. The policy holder Yesanna died in an electrical accident occurred on 14-6-2007 and the policy was inforce.  As per terms of the policy, in case of accidental death the nominee or assignee or legal representatives would get assured sum under the policy. The complainant approached R1 and informed the death of the policy holder and gave a representation with all records.   The R1 sent the proposals to R3 through R2 for settlement of the claim. On 25-8-2008 the R2 received a repudiation letter from R3 that the insured was self exposed to needless peril as the deceased touched electrical wires without using safety measures. The R3 repudiated the claim without any basis, with malafide intention. The policy holder died due to electrical accident around 8.00 p.m on 14-6-2007 while returning in a tractor bearing No. AP 04 U : 5831 loaded with groundnut bags and seated on the bags. When the tractor reached near the fields of Kambam Pedda Munaiah of Sangeevareddypalli village in between Kasthurajapuram – Manerampalli road due to bend of 11 K.V.H.T line, it touched the groundnut bags and passed electric power to the deceased through the tractor – trailer and the policy holder died on the spot. There was no negligence on the part of the deceased.   Thus the R3 should pay the sum assured to the complainant. Therefore, the complaint was filed for Rs. 50,000/- towards insured claim amount together with interest @ 24% p.a. from the date of maturity till the date of realization and Rs. 2,000/- towards costs and Rs. 4,000/- towards mental agony. 

 

3.                The R1 & R2 were called absent and set exparte on 17-6-2010.

 

4.                The R3 filed a counter denying all the complaint averments.   The death of Yesanna as accidental death should be proved with documentary evidence. It was out side the terms and conditions of the policy and required elaboratory evidence. Therefore, the complainant had to move to a Civil Court of competent jurisdiction and it could not be decided in the Consumer Forum. The R3 repudiated the claim as the deceased was seated on the load of groundnut bags, which was loaded in the tractor – trailer of G. Gangi Reddy of Gudipadu village and the deceased touched the wires. He traveled negligently in the trailer on the load of the groundnut bags. The complainant provided all the documents and the investigation report was clearly established that the deceased was self exposed needless peril at the time of death. The deceased touched the electrical wires without using safety measures which were tantamount to putting once own life to needless peril. The said Act would amount to putting over life to needless peril and so excluded by exclusion i.e. the company should not be liable under the policy for payment of compensation in respect of death or disablement resulting directly or indirectly, when the insured was self exposing to needless peril.   The accident should not be self invited or stage managed.  Under Rule 252 (2) of APMV Rules no person should be carried in a goods vehicle upon goods or otherwise in such a manner that such person was in danger of falling from the vehicle and no case should any person be carried in a goods vehicle, in such manner that any part of his person when he was in sitting position was at height exceeding 3 meters from the surface upon which the vehicle would rest.   So the respondent was not liable.   The deceased himself exposed from the danger and he was not caring of his life. The death was under the purview of needless peril. The death was not accidental and so there was no deficiency of service and the complaint may be dismissed with costs. 

 

5.                On the basis of the above pleadings the following points are settled for determination. 

i.                   Whether there is any negligence and deficiency of service on the part of the Respondents?

ii.                 Whether the complainant is entitled to the relief as prayed for?

iii.              To what relief?

 

6.                On behalf of the complainant Ex. A1 to A7   were marked.   The R3 filed written arguments also.      

 

7.                 Point No. 1& 2.  The complainant was the wife of J. Yesanna, who was living by doing agriculture in Gudipadu village, Duvvur mandal, Kadapa district and had membership in Primary Agricultural Cooperative Society with Kisan Credit cum Passbook with A/c No. 4297. As an Agriculturist Yesanna availed agricultural loan under account No. 752 for Rs. 6,000/- on 7-4-2007 from R1. The R1 received a JPA policy from R3 covering the accidental death benefit to the agricultural loan holder. The insurance premium was paid by R1 on the date of loan to R3 and the policy was issued. As per terms of the policy in case of accidental death of the policy holder, the sum assured should be paid to the nominee or assignee or legal representative of the policy holder on admission of the claim. 

 

8.                On 14-6-2007 around 8.00 p.m the policy holder Yesanna was returning in tractor bearing No. AP 04 U : 5831 loaded with groundnut bags and he was seated on the bags when the tractor – trailer reached near the fields of Kambam Pedda Munaiah of Sangeevareddypalli village in between Kasthurajapuram – Manerampalli road. The 11 K.V.H.T electrical line wires touched the groundnut bags and the electrical power passed to the tractor – trailer causing instantaneous death of Yesanna on the spot due to electric shock.  The live electrical wires at that time were lying in low level touching the groundnut bags in the tractor – trailer. Because it was night time and that too the wires could not be observed by the policy holder who was the tractor driver.   In case the policy holder would have observed the lines lying in low level he would have diverted the route with groundnut bags. No person could invite or seek death. The complainant filed Ex. A1 a Photostat copy of FIR in Cr. No. 92/2007 of Duvvur police station. Ex. A2 was Photostat copy of inquest report.   Ex. A3 was Photostat copy of final report submitted to the Mandal Executive Magistrate, Duvvur by S.H.O, Duvvur police station.   Ex. A4 was Photostat copy of post mortem certificate. Ex. A5 was Photostat copy of death certificate. Ex. A6 was Photostat copy of Cooperative Kisan Credit Card cum passbook for Member of Primary Agricultural Society, Duvvur of Yessanna.   The complainant subsequently made a claim to R3, who repudiated on the ground that the insured was self exposed to needless peril as deceased had touched electrical wires without using safety measures with tantamount to putting once own life to needless peril. The Photostat copy of the repudiation letter was sent by R3 to R2 was Ex. A7. The R3 had not filed any document. In Ex. A1 to A4 it was mentioned that the 11 K.V.H.T electric line was passing in low level and consequently touched the trailer and the tractor and the deceased policyholder was itself driver and the tractor.  Due to touching of live wires to the tractor – trailer which was in low level the electricity supply passed, resulting electrical shock to the policy holder Yesanna and another person resulting burning death of Yesanna. Another person also died in the accident. In Ex. A3 it was mentioned that the confidential enquiry revealed that it was purely accidental death due to electrical shock. As discussed earlier no person would invite death by touching electrical live wires.  The accident occurred in the night hours. Generally in villages roads there were no street lights.   Therefore, it was difficult to observe low lying live electrical wires. On account of it accident was occurred, causing death of policy holder Yesanna. Ex. A7 a Photostat copy of repudiation letter dt. 8-9-2008 addressed to R2, who received on 25-8-2008. The R3 should have informed the repudiation of claim to the complainant also. Since R2 received Ex. A7, it was supplied to the complainant. Therefore, in these circumstances the R3 would have settled the claim in favour of the complainant instead of repudiated it.   There was no relief sought against R1 and R2 in the complaint. R1 sent the proposals to R3 through R2. Therefore, the relief was not sought for against R1 and R3 and the claim is to be settled by R3 only. Thus there is deficiency of service on the part of R3.   Hence, the points are answered accordingly.  It was not believable thing to  repudiate that the deceased touched the live wires while driving the tractor. The tractor with trailer accidentally touched the live wires on the road at night hours. It was no difference whether the deceased was by the side of groundnut bags or setting on the top of the bags because the death occurred accidentally. 

 

9.                Point No. 3 In the result, the complaint is allowed, directing the R3 to pay Rs. 50,000/- (Rupees Fifty thousand only) without interest, to pay Rs. 1,000/- (Rupees one thousand only) towards mental agony and Rs. 500/- (Rupees five hundred only) towards costs, payable within 60 days from the date of receipt of the order. The case against R1 & R2 is dismissed without costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 11^th August 2010

 

 

Witnesses examined.

For Complainant    NIL                                                  For Respondent :     NIL

Exhibits marked for Complainant :

 

Ex. A1         P/c of FIR No. 92/2007 of Duvvur Police station.

Ex. A2         P/c –of inquest report.

Ex. A3         P/c of final report submitted to the Mandal Executive Magistrate, Duvvur

by S.H.O, Duvvur police station.

Ex. A4         P/c of post mortem certificate issued by Civil Asst. Surgeon, Area

Ex. A5         P/c of death certificate  issued by Tahsildar, Duvvur Mandal.

Ex. A6         P/c of passbook A/c No. 4297 issued in favour of deceased Yesanna.

Ex. A7         P/c of repudiation letter dt. 8-9-2007 from R3 to R2.

Exhibits marked for Respondents: -                 --- NIL ----

 

 

1)     Sri M. Nagi Reddy, Advocate for complainant.

2)     Sri D. Rajasekhar Reddy, Advocate for R3.

 

2) Copy was dispatched on      :

3) Copy of delivered to parties :