State Consumer Disputes Redressal Commission
The Branch Manager,The United India ... vs Rajappa,Sivaganga District on 14 June, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan, M.A.,B.L., MEMBER I Thiru S. Sambandam, B.Sc., MEMBER II F.A.NO.517/2006 (Against order in O.P.NO.46/2004 on the file of the DCDRF, Sivagangai) DATED THIS THE 14th DAY OF JUNE 2010 The Branch Manager The United India Insurance Co. Ltd., 254, Goods Shed Road Madurai- 1 Appellant / Opposite party Vs. Rajappa S/o. Chinnasamy Pallithambam Road Kalayarkovil (Via) Sivaganga District Respondent / Complainant The appellant as opposite party filed a complaint before the District Forum against the Respondent / complainant, praying for the direction to the opposite parties to pay Rs.50000/- the insured amount with interest, and cost. The District Forum allowed the complaint. Against the said impugned order, this appeal is preferred praying to allow the complaint as he prayed and set aside the order of the District Forum dt.14.12.2005 in CC No.517/2006. This appeal coming before us for hearing finally on 8.6.2010. Upon hearing the arguments of the counsels on either side, this commission made the following order: Counsel for the Appellant/ Opposite party: Mr. R.Kumararaja, Advocate Counsel for the Respondent/ Complainant: M/s.V.Raghavachari, Advocates M. THANIKACHALAM J, PRESIDENT 1.
The opposite party, who suffered an adverse order, is the appellant.
2. The respondent herein, as appellant, approached the District Forum, claiming a sum of Rs.1 lakh, under the Personal Accident with Hospitalisation Policy, for the death of his wife Mariathangam, who was covered under the policy, alleging that she died on 8.3.2004, due to snake bite, that despite information and claim before the opposite party, they failed to pay the amount, which should be construed as deficiency.
3. The opposite party/ appellant, admitting the policy, period of coverage etc., would contend, that the complainant has not proved the cause of death of Mariathangam, by producing postmortem certificate, death certificate, police records, etc., that at no point of time, they have committed any deficiency in service, that because of the non-production of the material records alone, claim was not paid, which cannot be termed as deficiency in service, that Mariathangam, died due to heart attack, as per the investigation, thereby praying for the dismissal of the complaint.
4. The District Forum, considering the rival contentions of the parties, took the decision that the materials placed before it, proved the cause of death of Mariathangam as snake bite, which comes under the policy, that despite demand, the assured amount was not paid. In this view, a direction came to be issued to pay a sum of Rs.1 lakh, with interest @9% p.a., from 8.9.2004, with cost, which is impugned in this appeal.
5. Heard the learned counsel for appellant as well as the respondent, perused the written submissions, lower court records and also the order passed by the District Forum.
6. The learned counsel for appellant would contend that even as per the policy, the sum assured was only Rs.50000/-, whereas the District Forum has directed to pay a sum of Rs.1 lakh, which prima-facie incorrect, liable to be set aside, further submitting that there was no deficiency of any kind at any point of time, and the non-payment of the sum assured was because of the reason that the complainant has not produced the required document, to prove the cause of death, which was also not properly considered by the District Forum.
7. On the other hand, it is the submission of the learned counsel for complainant, that the required documents, which could be available in this case, were produced, not accepted by the opposite party, which should be construed as deficiency in service, as correctly decided by the District Forum, not challenging in a way the sum assured, as submitted the learned counsel for the appellant.
8. Ex.A1, is the Personal Accident with Hospitalisation Policy, taken for three persons, including Mariathangam. The total amount assured for her was Rs.50000/-. On this basis alone, originally a petition was filed, claiming only a sum of Rs.50000/-. As seen from the original petition, it was later amended as Rs.1 lakh, and we do not find any reason, on what basis Rs.50000/- was enhanced to Rs.1 lakh, by way of amendment. It is not the case of the complainant that after the snake bite, they had spent any amount, which should be claimed under hospitalization. In the absence of any such plea, when the sum assured was only Rs.50000/-, for the death of Mariathangam, the legal heir/ nominee, is entitled to claim only a sum of Rs.50000/-, which was not seriously challenged by the complainant before us. In fact, no argument was advanced, how the order of the District Forum, granting Rs.1 lakh is legally sound, and not liable to be disturbed. In view of the above facts, accepting the submission of the learned counsel for the appellant, and taking into consideration the policy, where the amount assured for Mariathangam was only Rs.50000/-, we conclude, if at all there was any deficiency on the part of the opposite party, the complainant is entitled to only a sum of Rs.50000/-, and if at all subsequent interest from the date of repudiation, not more than that. Therefore, we have to see, what is the cause of death of Mariathangam.
9. In the complaint, as well as in the proof affidavit, it is the repeated assertion of the complainant, that on 8.3.2004, when Mariathangam, was attending some work in the field, she was bitten by snake, and their attempt to save her, taking to Sahayarani Hospital, Kalayar Koil, also ended in vain. This assertion, is supported by Ex.A7, not under challenge. The village Panchayat also has passed a resolution, as seen from Ex.A8, confirming that Mariathangam died on 8.3.2004, due to snake bite. On the same ground alone, claim was made. We do not find any reason to ignore the above said documents, which are not clouded with suspicious circumstances, and therefore accepting the same, we conclude that Mariathangam died due to snake bite. It is not the case of the opposite party, snake bite is not covered under the policy. Therefore, in the ordinary course, having given assurance under the policy, the opposite party should have paid Rs.50000/-, which they failed to do so, which should be construed as deficiency in service.
10. The learned counsel for appellant, would contend that there was no FIR, no postmortem certificate, no doctor certificate, and in the absence of those certificates, the opposite party is not bound to honour the claim. Generally, the FIR will come in a case of death, under two circumstances. (1) When there was suspicion in the death, then leading to investigation, (2) when there was patent crime, committed by known or unknown person. In this case, it is not the case of anybody that Mariathangam, died due to any suspicious circumstances, warranting FIR. Snake bite is not a crime, punishable under IPC, and therefore, there cannot be any FIR also. When there is no offence, intervention by policy will not come, and this should follow no postmortem or inquest as the case may be, either by the police, or by the RDO. This being the position, the opposite party insisted and demanded, that the complainant should produce FIR, postmortem etc., which would go to show that they have requested the complainant to do a thing, which is not possible or which is not within the power of the complainant. This fact also could be taken as deficiency in service. Therefore, the submission, that there was no deficiency in service, and amount was not paid due to want of record, is not acceptable to us, when there was no suspicious circumstances, when the doctor, who first attended, had certified that the complainants wife was died due to snake bite, which was followed by the panchayat resolution, the opposite party should have accepted and acted, that too when there was no rival claim.
11. Aid is sought from the investigation report Ex.B4. The witness, said to have been examined by the investigator, has not been examined before the fora, and affidavits were also not obtained. The investigation report would say, as if the investigator had cross examined the witness, and we do not know, what was the version given by them at the first instance. He has also examined the doctor, who had issued Ex.A7, who affirmed once again the snake bite, whether it is alleged or otherwise. When there was no dispute regarding the claim, in our considered opinion, the snake bite may not an imaginery one, which should be the real one, what had happened to Mariathangam. Therefore, based upon the uncertain report of the surveyor, it is not possible for us to come to the conclusion that Mariathangam died due to heart attack, for which we have no base at all. The District Forum, considering all these facts, has come to the conclusion that the opposite party had committed deficiency in service, in which we concur, though we differ in quantum. For these reasons, the appeal deserves to be allowed in part.
12. In the result, the appeal is allowed in part, modifying the order of the District Forum in O.P.No.46/2004, dt.14.12.2005, directing the opposite party to pay a sum of Rs.50000/- being the policy assured amount, with interest @9% p.a., from 8.9.2004, till payment with cost of Rs.1000/-. Considering the facts and circumstances of the case, there will be no order as to cost in this appeal.
S.SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX :
YES / NO Rsh/d/mtj/FB/Insurance