BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. 1424/2006 against C.C. 185/2005, Dist. Forum, Karimnagar.
Between:
The General Manager
The Singereni Collieries Co. Ltd.
G.D.K.- VI Incline
Ramagundam, Karimnagar. *** Appellant/
O.P. No. 1
And
1. Vodanala Komuramma
W/o. Bhoomaiah,
Age: 40 years, Household
R/o. Rompikunta (V&P)
Komanpur Mandal
Karimnagar Dist. *** Respondent/
Complainant.
2. The Divisional Manager
National Insurance Company Ltd.
Hyderabad Division Office-II
At 6-3-680, III Floor
Regency House,
Somajiguda, Hyderabad. *** Respondent/
O.P. No. 2.
Counsel for the appellant: M/s. P. Suseela
Counsel for the Respondents: M/s. G. Ramakrishna (R1)
M/s. Katta Laxmi Prasad (R2)
F.A. 1174/2006 against C.C. 185/2005, Dist. Forum, Karimnagar.
Between:
The Divisional Manager
National Insurance Company Ltd.
Hyderabad Division Office-II
At 6-3-680, III Floor
Regency House,
Somajiguda, Hyderabad. *** Appellant /
O.P. No. 2.
And
1. Vodanala Komuramma
W/o. Bhoomaiah,
Age: 40 years, Household
R/o. Rompikunta (V&P)
Komanpur Mandal
Karimnagar Dist. *** Respondent/
Complainant.
2) The General Manager
The Singereni Collieries Co. Ltd.
G.D.K.- VI Incline
Ramagundam, Karimnagar. *** Respondent /
O.P. No. 1
Counsel for the appellant: M/s. Katta Laxmi Prasad
Counsel for the Respondents: M/s. G. Ramakrishna (R1)
M/s. P. Suseela (R2)
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
&
SMT.M.SHREESHA, LADY MEMBER.
FRIDAY, THIS THE TWENTY SIXTH DAY OF JUNE TWO THOUSAND NINE
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President.)
***
1) R1 the Singereni Collieries filed appeal F.A. 1424/2006 while R2 National Insurance Company preferred appeal F.A. 1174/2006 against the order of the Dist. Forum directing them to pay Rs. 1 lakh with interest and costs covered under the Group Janata Personal Accident Insurance Policy (JPAIS)
2) The parties are described as arrayed in the complaint for felicity of expression. Since both these appeals pertain to very same order both are clubbed together for passing a common order.
3) The case of the complainant in brief is that she is the wife and legal heir of Vodnala Bhoomaiah, a Coal Filler working with R1 Singareni Collieries Company Ltd. R1 provided Group Janata Personal Accident Insurance policy for its employees with R2 by deducting premium from the salary of each of the employee for a period of one year covering the risk for an amount of Rs. 1 lakh. When whereabouts of her husband were not known for a period of one year, and after intensive search, she came to know that he died on 13.3.2000 at 15.00 hours in a train accident. She learnt that Railway Police, Bellampalli registered a case in Crime No. 39/2000 u/s 174 of Cr.P.C. and filed final report before the Executive Magistrate & MRO, Rebbena Mandal of Adilabad district on 22.9.2001 confirming the death as accidental. When Vodnala Bhoomaiah was dismissed from service by R1 she filed W.P. No. 18028/2003 for declaration that dismissing him from service was illegal and consequently pay all the
benefits that the deceased was entitled to. The said Writ Petition was allowed. She gave legal notice to the insurance company to release the insurance amount on which R2 in turn directed her to submit the documents. Accordingly, she had sent them, however, after a lapse of six months it repudiated the claim on the ground that cause of death was not noted in the postmortem examination. It noted that the cause of death was not established and the file was closed. Since R1 deducted premium and remitted the same to R2, she was entitled to the amount covered under the policy and therefore claimed the said amount of Rs. 1 lakh with interest from 13. 3 .2000 together with compensation of Rs. 5,000/- and costs.
4) R1 resisted the case. It alleged that Sri Vodnala Bhoomaiah, Coal Filler at GDK No. 6 was dismissed from the services of R1 from 13.7.2001 due to absenteeism after conducting ex-parte enquiry proceedings. Later the complainant submitted an application Dt. 6.11.2001 stating that her husband died on 13.3.2000 in an accident falling from a running train near Kagaznagar, along with copies of death certificate, FIR, Post-mortem report etc. Immediately, it had informed the death of the deceased to R2 and requested to send claim forms. R2 in turn refused to register the claim in view of delay in intimating the death. In the light of orders of High Court in W.P. No. 18023/2003 confirmed in W.A. No. 1969/2004 it processed all the terminal benefits treating him as in service till 13.3.2000 viz., till the date of death. It recovers premium from the wages of its workmen and remits to R2 as a welfare measure. It was a free service, without collecting or charging any amount from its workmen. Since service provided is free of cost it cannot be treated as ‘service’ u/s 2(i)(o) of the Consumer Protection Act. Immediately after receiving the application from the complainant, it forwarded the same to R2 to process the claim. It was rejected by R2 without considering the facts. At any rate, it was not liable to pay the amount. Therefore, it prayed for dismissal of the complaint with costs.
5) R2 the insurance company did not choose to contest the matter and therefore it was set-exparte.
6) The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A8 marked, while R1 filed the affidavit evidence of its General Manager and got Exs. B1 to B10 marked.
7) The Dist. Forum after considering the evidence placed on record opined that the documents filed by the complainant establish that the complainant’s husband was a workman covered by JPAIS and in the light of death by accident, she was entitled to the amount covered under the policy, and therefore directed both the opposite parties to pay Rs. 1 lakh with interest @ 9% p.a., from 18.8.2005 till payment together with costs of Rs. 1,000/-.
8) Aggrieved by the said decision R1 preferred F.A. No. 1424/2006 contending that the Dist. Forum did not appreciate the facts in correct perspective. In the light of the fact that it has processed the claim as soon as it received intimation of death and it is R2 that was liable to pay the amount. Apart from it, since the service provided by it is without consideration not covered u/s 2(i)(o) of the Consumer Protection Act, it was not liable to pay the amount. The complaint was also barred by limitation.
9) R2 insurance company equally preferred F.A. 1174/2006 contending that the complainant had played fraud on it by filing a false claim. The Dist. Forum had failed to consider that neither policy was filed nor its particulars were mentioned in order to prove that R1 had deducted the premia from his salary and sent to it. Entitlement of emoluments by the deceased employee had nothing to do with the claim towards insurance policy. Since, there is no proof that death was due to external violent means and that there was no policy, it was not liable to pay compensation. There is no identification of dead body. The coverage cannot be assumed, and consequently amount ordered to be paid cannot be made.
10) The point that arises for consideration is whether the order of the Dist. Forum is vitiated for mis-appreciation of fact or law, and consequently liable to be set-aside?
11) It is an undisputed fact that the complainant is the wife of deceased V. Bhoomaiah, an employee with R1 Singareni Collieries Ltd. When his whereabouts could not be known by complainant and her family members from 4.3.2000 she searched for him. On report, the police registered a man missing case in Crime No. 39/2000 u/s 174 Cr.P.C. vide Ex. A2. Later, on investigation by the railway police, it was revealed that the deceased V. Bhoomaiah accidentally fell down from a train a week prior to 13.3.2000 and died. On that final report was submitted by the S.I. of Railway Police, R.P.S. Bellampally before the Executive Magistrate & MRO, Rebbena Mandal of Adilabad district. The case was closed as accidental death vide Ex. A6. It is interesting to note that on 13.3.2000 an unknown body of the deceased was found near the railway track. The body of the deceased was highly decomposed. Thereupon the police conducted inquest on 14.3.2000 in the presence of two mediators and made tomtom in the area but nobody could identify the body. Later it was sent for postmortem examination. The Deputy Civil Surgeon, Community Health Centre, Bellampally conducted the post-mortem examination on 14.3.2000 found that the body was highly decomposed, and no opinion could be given as to the cause of death. It seems that photos were taken and clothes of the deceased were preserved and later the body was buried. The complainant approached the police almost 1-1/2 year there after i.e., on 22.9.2001 to verify the records. They identified the deceased from the cloths and photos of the deceased. Thereupon police submitted a requisition to MRO for reopening the case and filed final report Ex. A6 mentioning that
“From the above it is established that the deceased while travelling in some down train about one week prior to 13.3.2000, from Sirpur Kaghaznagar accidentally fell down from the train and died on the spot at KM 220/0-2 between Asifabad Road and Repalliwada down line. There is no foul play suspected in his death.” Thus the final report is submitted as ‘accident death ‘ vide Ex. A6.
12) It is still curious to note that in the meantime R1 dismissed the deceased from service on the ground of long absenteeism and refused to pay the emoluments which the deceased was entitled to. There upon she filed W.P. 18023/2003. The High Court opined that “ Admittedly the husband of the first petitioner was dismissed from service with effect from 13.7.2001 whereas he died on 13.3.2000 i.e., more than one year prior to the dismissal order was passed. Such an order is non-est in the eye of law. In the circumstances, the respondents are directed to treat that the husband of the first petitioner was in service till 13.3.2000 in view of his death and pay all the benefits in accordance with law, within a period of two months from the date of receipt of a copy of this order.” On these proceedings the complainant requested R1 to pay the amount covered under Group Janata Personal Accident Insurance Policy (JPAIS). On that R1 addressed a letter Dt. 21.11.2001 to R2 stating that “ you are requested to kindly arrange to send a JPAIS claim form and register this case for enabling us to process the JPAIS claim, at the earliest.” vide Ex. B3. R2 insurance company gave reply Dt. 5.12.2001 (Ex. B5) stating that claim was made with an extraordinary delay of more than 20 months. It was violation of policy conditions and therefore they did not register the claim. On that R1 sent letters Dt. 3.5.2002 & 16.9.2002 ( Exs. B7 & B8) alleging that
“as the wife could not know whereabouts of her husband, and she had been representing all these days with the local police to know whereabouts of her husband, and on finding only in the month of October, 2001 that her husband died in train accident, even though the death occurred in the month of March, 2000, she approached this office with all the relevant documents requesting to settle all the terminal benefits by treating the cessation of her husband’s employment as death. You are requested to kindly look into the matter and arrange for further necessary action to register this case under JPAIS and for early settlement.” They have enclosed the copy of the Writ Petition orders and directed R2 to settle the claim enclosing requisite documents. Six months there after R2 repudiated the claim on the ground that policy covers death/bodily injury resulting solely and directly from accident caused but outward, violent and visible means only. From the post mortem examination report it is noted the cause of death is not established. Therefore, we express our inability to consider your representation and process the claim. Further as you failed in establishing the death as an accidental one, the file is closed herewith.” In view of closure of the file the complainant filed the complaint.
13) Importantly at no time the insurance company questioned the coverage of insurance to the deceased. The insurance company did not repudiate the claim on the ground that there was no policy nor that they did not receive premia from it. We have extracted the ground on which the insurance company had repudiated the claim. One ground was that the employer did not inform the factum of death, nor made the claim within a year. In fact, the very complainant was not aware as to the death of the deceased. Only after coming to know that her husband died in a train accident, when the benefits were not paid she invoked the writ jurisdiction of the High Court and obtained orders. Instead of going through the record nor seeking information from the employer Singareni Collieries Limited.,
contending that the claim could not be made in time, the insurance company had routinely repudiated the claim without enquiring into the death of the deceased and considering the circumstances under which the claim was made. It could have sought clarification from the employer. The Singareni Collieries was equally at fault for not mentioning the premia paid by it to the insurance company.
14) The insurance company for the reasons best known did not choose to contest the case before the Dist. Forum. It did not give any reasons as to why it did not contest. Belatedly in the appeal it has taken all these pleas that are available viz., existence of policy, payment of premia, death of the deceased in an accident etc. We repeat that at no time, the insurance company raised these questions when it repudiated the claim. It did not seek information from the employer asking for particulars of the policy etc. In fact, admittedly, it has issued a policy covering the risk of all the employees of Singareni Collieries Ltd. It could have verified from its records as to whether the policy was in fact given to the deceased and when it has received the last premium. When it could equally verify, it cannot take the plea that the employer did not furnish the particulars. We may state that the employer is equally guilty of not responding to the letters issued by the insurance company by not mentioning the particulars.
15) We may add here that in view of the fact that the complainant was unaware of the death of the deceased, the employer went to the extent of dismissing the deceased from service on the ground of long absenteeism without obtaining permission as they were not aware that the very employee died. However, by virtue of order of the High Court it paid the emoluments. When the employer as well as the insurance company could know the death of the deceased they should have acted upon the information to find out the reason and then settled the claim. If really he was not covered by the policy, the insurance company could have stated the said fact. For the first time in appeal such a contention was taken without any regard to their own repudiation letters wherein these contentions were not taken. We may state that since there was no counter filed by the insurance company, the complainant had no opportunity to answer all these untenable contentions.
16) At any rate, in the light of uncontroverted documentary evidence emanated from the police, other officials and the employer Singareni Collieries, we are of the opinion that the complainant is entitled to the benefits under the policy. It is too late a day to take these contentions when it did not even choose to contest before the Dist. Forum. It is estopped from taking these contentions in the appeal having allowed an order to be passed against them by remaining ex-parte. The defence taken in the appeal is undoubtedly motivated to deny the benefits.
17) We hold that both the employer as well as the insurance company were at fault in not settling her claim, and that joint and several liability ordered by the Dist. Forum cannot be faulted. We do not see any merits in the appeals preferred by both the parties.
18) In the result, appeals are dismissed with costs computed at Rs. 5,000/- each payable to the complainant/respondent. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) _________________________________
MEMBER
Dt. 26. 06. 2009.
