Andhra Pradesh

Nellore

CC/87/2016

1. Budida Varalakshmi, W/o. of late Venkata subbaiah - Complainant(s)

Versus

United India Insurance Company Ltd, rep by its Divisional Manager - Opp.Party(s)

M.RajaSekhar

16 Aug 2017

ORDER

Date of filing       :  14-09-2016

Date of Disposal :   16-08-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Wednesday, this the 16th day of  AUGUST, 2017.

 

        PRESENT: Sri Sk.Mohd.Ismail, M.A., LL.B.., President

                         Sri K.Umamaheswara Rao, M.A., B.L., Member 

                                  

C.C.No.87/2016        

 

1.Budida Varalakshmi,

   W/o.late Venkata Subbaiah,

   Hindu, aged about 45 years,

 

2) Budida Rama Priya alias Venu Priya

    D/o.Late Venkata Subbaiah, Hindu,

    Aged about 19 years,

 

3) Challa Rajyalakshmi,

    W/o.Hari and

    D/o.Late Venkata Subbaiah 

 

    All are residents of Shirdi Sai Nagar,

    Nawabpet, Nellore City,

    Nellore Sri PSR Nellore District.                               …  Complainants

 

                      Vs.

                                                                            

United India Insurance Company,

Represented by its Divisional Manager,

Divisional Office-II,

Brundavanam,

Nellore.                                                                     … Opposite party

 

This matter coming on  09-08-2017   before us for final hearing in the presence of Sri.M.Rajasekhar, Advocate for complainants  and                        Sri S.Nageswarao, Advocate  for the opposite party  and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                                                             (By Sri Sk.Mohd.Ismail, M.A., LL.B.., President)

 

 

1.     The complainants filed this complaint under section 12 of Consumer Protection Act, 1986 claiming an amount of Rs.2,00,000/- towards compensation for the death of Budida Venkata Subbaiah, who is the husband of the 1^st complainant and the father of 2nd and 3^rd complainants, who died in an accident  which took place on 18-04-2012 due to fallen down from the lorry bearing No.AP.16TT4597 and died on 21-02-2012 in Narayana General Hospital, Nellore while undergoing treatment and  submits to allow the petition by awarding personal accident amount of Rs.2,00,000/- with interest @ 24% p.a. and also  claiming a sum of Rs.2,00,000/- towards mental agony and a sum of Rs.20,000/- towards financial loss  caused to deficiency in service and negligence on the part of the opposite party and for the costs.

 

 

2.  The brief averments of the complaint are as follows:

 

    That the 1^st complainant is the wife of deceased Budida Venkata Subbaiah and the complainants 2 and 3 are the daughters of deceased Budida Venkata Subbaiah. The complainants submit that the deceased is the owner-cum driver of the lorry bearing No.A.P.16-TT-4597 and the deceased obtained policy from the opposite party which is valid from 18-04-2012 to 17-04-2013.  The complainants submits that the deceased was earning a sum of Rs.15,000/- per month by the time of his death and contributing his entire income to his complainants family.  The complainants submits that the opposite party has issued policy and it is valid upto 17-04-2013 and  further submits that on     18-04-2012  while the deceased was tightening the rope by standing on lorry and suddenly the deceased fell down and sustained multiple injuries and the deceased was shifted to D.S.R. Government Head Quarters Hospital, Nellore  for treatment and after giving first aid treatment, he was  shifted to Narayana General Hospital, Nellore for better treatment and while undergoing medical treatment, the deceased died on 21-04-2012 and after the death of the deceased and to conduct inquest, the dead body of the deceased was sent to the DSR Govt. Hqs. Hospital, Nellore for postmortem examination.  After postmortem examination, the dead body of the deceased was brought back to his village by incurring transport expenses of Rs.5,000/-.  Basing on the reports, the S.H.O. registered as a case in crime No.29/2012 under section 174 of Cr.P.C.  The opposite party has to pay compensation of Rs.2,00,000/- to the complainants but the opposite party failed to pay the amount.  The complainants submits that after death of deceased, they have approached the officers of the opposite party along with policy of the copy and as per the insurance policy, the deceased paid Rs.100/- towards the personal accident policy premium and after death of the deceased on 29-04-2012, the 1^st complainant approached the opposite party for the insurance claim amount.  Inspite of issuing of legal notice to the opposite party, they did not give any reply and failed to pay the compensation claim amount due to the complainant.  Since, the complainants filed this complaint against the opposite party directing for payment of compensation of Rs.2,00,000/- with interest, Rs.50,000/- towards mental agony caused deficiency in service.   

 

3.  The opposite party did not file written version on 18-11-2016.  The opposite party filed chief affidavit and written arguments on 09-08-2017.

 

4.  On behalf of the complainants, chief affidavit of 1^st complainant (PW1)  filed and Exs.A1 to A9 marked.  On behalf of the opposite party, affidavit of RW1 filed and no documents were marked.

 

     On behalf of the opposite party, written arguments filed.

 

5.  Arguments on behalf of both parties heard.

 

6.  Now, the points for consideration are:

 

 1) Whether the Budida Venkata Subbaiah who is the owner-cum-driver

     of lorry bearing   No.A.P.16-TT-4597 died due to the accident which

     took place on 18-04-2012 in course of employment while undergoing

     treatment in Narayana General Hospital, Nellore ?

 2) Whether there is deficiency of service by the opposite party/

     United Insurance Company Ltd.,?

 3) To what relief the complainants are entitled ?

 

7. POINT NO.1:   The learned counsel for the complainants submits that by relying upon the chief affidavit of PW1 and Exs.A1 to A9 that on 18-04-2012, the deceased Budida Venkata Subbaiah died by falling down from the top of the lorry while he was tightening the rope and when the accident was occurred in course of employment, he submits by relying upon the contents of Exs.A1, A3 and A5 that when the accident was occurred in course of employment, he submits to allow the complaint by awarding compensation in favour of the complainants with costs. 

 

8.      On the other hand, the learned counsel for the opposite party submits that by filing written arguments that as the deceased died while tying rope and as there is violation of the terms and conditions of the policy, he submits that the complainants are not entitled for compensation and the death of the deceased was no way concerned in course of employment of the deceased and submits for the dismissal of the complaint. 

 

9.      In view of the arguments submitted by the both parties and as seen from the contents of Ex.A1 it shows that the deceased fell down while the deceased was tightening the rope.  It is mentioned in Ex.A5 final report reads as follows:

    

        “During the course of the investigation, I examined as many as seven eye witnesses with the occurrence and record through statements, who narrated the accident occurred by falling down from the top of the lorry load as the tightening rope was cut off “. 

  

      In Sandeep Kumar Chowrasia Vs.New India Assurance Co.Ltd., III(2013)CPJ129 (SC) = IV (2013) SLT 724.

     “ Wherein the Hon’ble Apex Court held that fallen from top is amounts an accident.”

    Following the above decision as the death occurred due to fallen, the complainants are entitled for compensation.

      By relying upon the contents of Ex.A2 inquest report and Ex.A5 Final report, we are of the opinion that the deceased died in course of employment. By relying upon the above decision and the discussion, we answered this point against the opposite party in favour of the complainants.

 

10.  POINT NO.2:      The learned counsel for the complainants submits that by relying upon Ex.A4 policy that during life time of the deceased Budida Venkata Subbaiah paid a sum of Rs.100/- towards premium for personal accident for owner and driver of the lorry bearing No.A.P.16-TT-4597 and after receipt of the said premium, the opposite party issued insurance policy which shows that the owner-cum- driver is entitled for an insurance amount of Rs.2,00,000/- in case of his death.  But, as seen from Ex.A8; dated 27-08-2016, the opposite party having received notice he failed to pay the insurance amount of Rs.2,00,000/- to the complainants under Ex.A4 policy.  Hence, there is clear deficiency of service by the opposite party.

 

11.      The learned counsel for the opposite party further submits that the accident was occurred on 18-04-2012 and the deceased died on 21-04-2012 and the complainants filed this complaint on 14-09-2016.  Hence, the complaint filed by the complainants is barred by limitation and submits that for the dismissal of the complaint with costs.  But as seen from the contents in Ex.A4, the deceased who is the owner cum driver of the lorry obtained Ex.A4 policy after paying premium of Rs.100/- to the opposite party under  receipt of Rs.100/-.  The opposite party issued Ex.A4 policy in favour of the deceased covering risk owner cum driver for payment of Rs.2,00,000/- in case of accidental death.  After death of the deceased on behalf of the complainants  Ex.A8 notice was issued on 27-08-2016 demanding for the payment of the death benefits of Rs.2,00,000/- but the opposite party failed to pay the amount of Rs.2,00,000/-.  The complainants are entitled the claim amount of Rs.2,00,000/- for the death of deceased.  The opposite party having obligation for the payment of Rs.2,00,000/-  to the complainants  but the opposite party failed to pay the due amount which is against Law.  Hence, we are of the opinion that there is continuous cause of action and hence the complaint filed by the complainants is not barred by limitation.  In view of the above said discussion, we answered this point in favour of the complainants and against the opposite party.

 

12.    POINT NO.3:  In view of our answering on Point Nos.1 and 2  in favour of the complainants and against the opposite party, we are of the opinion that the complaint filed by the complainants has to be allowed. The opposite party is directed to pay an amount of Rs.2,00,000/- (Rupees two lakhs only)  to the complainants along with interest @12% (twelve) p.a. on Rs.2,00,000/- (Rupees two lakshs only) from the date of the death of the deceased i.e., from              21-04-2012 till the date of payment.

 

        The opposite party is also directed to pay a sum of Rs.10,000/- (Rupees ten thousand only) for mental agony and the opposite party is also directed  to pay costs of Rs.5,000/- (Rupees five thousand only). The claim of the complainants for awarding compensation of Rs.20,000/- (Rupees twenty thousand only), recklessness and financial loss is dismissed.

 

        In the result, the complaint is allowed and the opposite party is directed  to pay an amount of Rs.2,00,000/- (Rupees two lakhs only) to the complainants along with interest @ 12% p.a.,  on Rs.2,00,000/- from the date of the death of deceased i.e., 21-04-2012 till the date of payment.

 

     The opposite party is also directed to pay Rs.10,000/- (Rupees ten thousand only) for causing mental agony to the complainants. The opposite party is also directed to pay Rs.5,000/- (Rupees five thousand only) towards the costs of the complaint.

 

      The claim of the complainants claiming compensation of Rs.20,000/- (Rupees twenty thousand only) towards recklessness and financial loss to the complainants  is dismissed as interest was awarded.  The opposite party is directed to pay the amount within 45 (forty five) days.

Dictated to the Stenographer, transcribed by her and corrected and pronounced by us in the Open Forum this the 16th day of AUGUST,                  2017.    

                                     

 

              Sd/-                                                                        Sd/-

         MEMBER                                                                 PRESIDENT

 

 APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANTS:

 

PW1

18-11-2016

:

Budida Varalakshmi, W/o.Late Venkata Subbaiah, Hindu, aged about 45 years and resident of Shirdi Sai Nagar, Nawabpet, Nellore City, Nellore, Sri P.S.R.Nellore District.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

09-08-2017

K.Udaya Sankar, S/o.K.Madhava Rao, Hindu, aged about 58 years, working as Divisional Manager, residing at Nellore.

                                                                         

EXHIBITS MARKED FOR COMPLAINANTS:

 

Ex.A1	22-04-2012	:	Attested Photostat copy of FIR in Crime No.29/2012 of Allur P.S.
Ex.A2	22-04-2012	:	Attested Photostat copy of inquest report relating to the deceased Budida Venkata Subbaiah.
Ex.A3	22-04-2012	:	Attested Photostat copy of postmortem certificate of the deceased.
Ex.A4	18-04-2012	:	Attested Photostat copy of Insurance policy bearing No.1512013112P000094389, vehicle No.AP-16-TT-4597 issued by United India Insurance Company Ltd.,
Ex.A5	13-01-2015	:	Attested Photostat copy of letter (final report) addressed by the Sub-inspector of Police, Alluru P.S. to the Tahsildar & Mandal Executive Magistrate, Allur.
Ex.A6	21-06-2012	:	Attested copy of Family member’s certificate issued by Tahsildar, Nellore Mandal.
Ex.A7	18-04-2015	:	Attested Photostat copy of Narayana Hospital medical record relating to death particulars of  the deceased Budida Venkata Subbaiah along with  letters  regarding medico – legal case.
Ex.A8	27-08-2016	:	Office copy of legal notice got issued by the 1st complainant through her counsel to the opposite party along with Regd.postal receipt(one).
Ex.A9	07-03-2013	:	Photostat copy of representation given by 1st complainant to the opposite party.

 

EXHIBITS MARKED FOR OPPOSITE PARTY:                         

 

:

NIL -

 

                

                                                                               Id/-

                                                                      PRESIDENT

 

 

 

Copies to:

 

1) Sri M.Rajasekhar, Advocate, Nellore.

 

2) Sri S.Nageswara Rao, Advocate, Nellore

 

 

Date when order copies were issued: