BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.941 OF 2012 AGAINST C.C.NO.125 OF 2011 DISTRICT FORUM-I HYDERABAD
Between:
Mr.P.Somasundara Rao S/o late Shri P.Kondaiah
aged about 41 years, M/s Sri Dhanalakshmi Enterprises
Near Old Bus Stand, Trunk Road, Kavali-201
Appellant/complainant
A N D
The Senior Manager Claims,
Cholamandalam MS General Insurance Co.Ltd.,
5th Floor, V.V.Vintage Boulevard
Rajbhavan Road, Somajiguda,
Hyderabad-082
Respondent/opposite party
Counsel for the Appellant M/s K.Venkateswarlu
Counsel for the Respondent M/s A.Ramakrishana Reddy
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
THURSDAY THE FOURTH DAY OF APRIL
TWO THOUSAND THIRTEEN
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The unsuccessful complainant is the appellant. He filed the complaint claiming for accidental benefit of `1,00,000/-, compensation of `90,000/- and costs of `10,000/-.
2. The appellant’s father obtained insurance policy bearing number APG00000562-000-00 for the period from 11.01.2005 to 10.01.2006 from the respondent-insurance company. The appellant’s father, a businessman said to have left his home on 14.09.2005 to purchase furniture required for his business and while travelling in Pinakini express he stated to have fell down at Bitragunta Railway Station and died at the spot. The Railway Police, Bitragunta registered a case in crime number 79 of 2005 and the appellant stated to have identified cloths and photo of the person died in the accident as that of his father and the claim lodged by the appellant was repudiated on the grounds that there was discrepancy in regards to age, cloths worn and place of death of the dead person as regards to which Bitragunta Railway Police registered the case and the father of the appellant. Questioning the reasonableness of repudiation of his claim, the appellant had filed the complaint.
3. The respondent resisted the claim on the premise that the dead body found near Bitragunta Railway Station does not pertain to the father of the appellant and that the Railway Police, Bitargunta conducted inquest over the dead body prior to the time the appellant’s father started from his house. It is contended that as seen from the proposal form the age of the insured is 67 years whereas the post mortems shows the age of the deceased as 50 years and in the inquest report it is shown as 55 years and that according to the version of the appellant his father was wearing dhoti and white shirt at the time he left their house and the police record would show the cloths the dead man wore as shirt with stripes, a banian and a knicker. It is contended that the death intimation was not given within prescribed time of 72 hours and that the person who died in the train accident on 16.10.2005 is not the father of the appellant.
4. The appellant in support of his claim, filed his affidavit and the documents, ExA1to A15. On behalf of the respondent, its Senior Manager (Claims) filed his affidavit and the documents, Exs.B1 to B4.
5. The counsel for the appellant and the respondent had filed memo of written arguments.
6. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
7. The facts beyond any dispute are that the respondent issued insurance policy bearing number APG00000562-000-00 valid for a period of one year commencing from 11.01.2005 to 10.01.2006 in favour of the appellant’s father and the insurance policy was issued through Prism Infin Club. It is not disputed that one person died when he fell down a train near Bitragunta Railway Station.
8. The respondent insurance company repudiated the claim on the ground that the age of the deceased, clothes worn by him are different from the age of the appellant’s father and the clothes he had worn at the time he left his house. The repudiation letter refers to the grounds of repudiation as under:
1. The age of Mr.P.Kondaia as per the Certificate of INsurnace and the proposal is 67 years whereas the Post Mortem Certificate reveals the age as 50 years and the certiaficate issued by the police states the age of deceased as 55 years. The age as per the Voter ID Card issued as on 1-1-2003 is 61 years. Discrepancy in age of the dead body found and the age of your Father indicates that the dead body found near the Bitragunta police station do not pertain to that of your Father.
2. As per the statement submitted by you, Mr.P.Kondaiah left to Nellore from his place i.e. Kavali by Pinakini Express Train at around 9AM on 16.09.2005 and as per the Police records, PS bitrakunta received the information about the reported accident on 16-09-2005 at 1.10 hrs and inquest was conducted on 16.09.05 between 7.30 AM and 10 AM i.e. much before your Father left the house. This clearly shows that the dead body found near Bitragunta Railway Station does not pertain to the deceased, Mr.P.Kondaiah.
3. There are discrepancies regarding the identity of the Insured person, Shri P.Kondaiah. As per the findings of the Investigator, you had identified the body of your Father based on the cloths he was wearing, which were stripe shirt, banian & Khaki nikkar. Where as you have stated to the investigator that he was wearing White shift and White dhoti.
4. We have requisitioned the services of an Expert from the Department of Forensic Medicine to correlate the injuries sustained by the deceased with the findings of the Post Mortem Report. As per the Report, the Expert has opined that the injuries sustained by the deceased are not consistent due to fall from a moving train, but more in favour of due to suicidal in nature.
5. The alleged accident occurred on 16-09-2005 and claim intimation was given to us on 2.11.2005 i.e. after a gap of 47 days. Even from the date of identity of the dead body on 16.10.2005, there is a delay of intimation. As per the terms and conditions of the policy certificate, claim intimation should reach the Company within 72 hours of the accident. There is enormous delay in giving intimation to the Company.
9. There are several disputed questions of facts in regard to identity of the appellants father, the clothes worn by him and the time he left his house on 14.9.2005 as also the age of the appellant’s father. The matter involves examination and cross examination of witnesses and appreciation of voluminous documentary evidence as also finding out whether the documents are fabricated for the purpose of the claim. As such, the parties are required to be relegated to civil court for proper adjudication of the matter.
10. In “Oriental Insurance Company Ltd., Vs Munimahesh Patel “ IV (2006) CPJ 1, the insurance company disputed the genuineness of the documents and the Hon’ble Supreme Court held that where the matter involves adjudication of issues involving disputed factual questions, Consumer Forum cannot adjudicate the matter and the complainant was entitled to seek relief in court of competent jurisdiction.
“9. The Commission noted that the specific stand of the appellant was that there was mis-declaration in the proposal form and the false claim that the respondent’s wife was a teacher which as now appears is not the correct position. It also accepted that she was really not a teacher.
10. Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.
11. The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.
12. The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.
13. Above being the position, the Commission was not justified to deal with the matter in the manner as was done. In our view, the directions of the State Commission were more appropriate keeping in line with the nature of dispute. Accordingly, the appeal is allowed but with no order as to costs”.
11. The National Commission in ‘Transport Corporation Employees Provident Fund Trust vs Orissa small Industries and another ‘ III(2007) CPJ 316(NC) and ‘Omprakash vs Allahabad Bank’ III(2206)CPJ 418, held that the matter involving adjudication of disputed questions of facts has to be tried by competent court. Thus, we are inclined to give opportunity to the complainant to approach competent court for adjudication of the matter.
12. In the result, the appeal is dismissed confirming the order of the District Forum with liberty for the appellant to approach the Civil Court or any other Forum. In the event the respondent approaches the Civil Court or any other Forum, the period spent between the filing of the claim before the District Forum and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Hon’ble Supreme Court in “Trai Foods Ltd vs National Insurance Company Ltd and others” reported in III (2012) CPJ 17”.
Sd/-
MEMBER
Sd/-
MEMBER
Dt.04.04.2013
కె.ఎం.కె.*
