State Consumer Disputes Redressal Commission
Smt M.Sridevi W/O Late Narsimha Chary vs The Senior Divisional Manager on 30 September, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. F.A.No. 482 OF 2012 AGAINST C.C.NO.73 OF 2011 DISTRICT CONSUMER FORUM RANGA REDDY Between Smt M.Sridevi W/o late Narsimha Chary aged about 35 years, Occ:Household R/o Plot No.308, Mallikarjuna Nagar Bandlaguda, R.R.District Appellant/complainant A N D The Senior Divisional Manager National Insurance Co.Ltd., (A.Govt.of India undertaking) Division-III, Shakeswpeere Sarani 6th Floor, Kokata-071 Respondent/opposite party Counsel for the Appellants M/s V.Kumar Purohit Counsel for the Respondent M/s N.Mohan Krishna QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER MONDAY THE THIRTIETH DAY OF SEPTEMBER TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The unsuccessful complainant is the appellant. The appellant is the wife of Narsimha Chary who during his train journey on 12.7.2004 at about 11.40 hours died as a result of blast in the train. A case was registered in Cr.No.110/2004 by the Railway Police, Wadi. The appellant made a claim to the respondent on 1.3.2005 for payment of the claim amount and the respondent repudiated the claim on 9.9.2005 on the ground that the appellant did not make claim intimation within the stipulated period 30 days and the claim submission with supporting documents within period of 90 days. The appellant being illiterate had no knowledge about the insurance policy issued covering the risk due to accident on her deceased husband till her relatives handed over the policy paper to the appellant. The appellant filed writ petition in High Court of Andhra Pradesh in W.P.No.24448 of 2005 wherein the High Court directed the respondent to pay the claim amount to the appellant. When the order was not complied by the respondent, the appellant filed contempt petition. The respondent filed WVMP NO.2002/2209 wherein the interim direction dated 9.6.2009 was vacated and against the order, the appellant filed W.A.No.1079 of 2010 and the Division Bench while dismissing the writ appeal granted liberty to approach the District Forum. Therefore, the appellant filed complaint before the District Forum and claimed for payment of the insurance amount.
2. The respondent resisted the case contending that the Assistant Station Master Railway gave a statement on 13.7.2004 that at the time of accident the deceased along with his accomplice are in drunken state and they brought illegally the explosive material in the train which accidentally exploded or burst due to which the husband of the appellant died. The deceased being in an intoxicated condition and carrying illegal arms is in contravention of proviso 1(b) and 1(e) of Janatha Personal Accident Policy. The claim of `5 lakhs for accidental death is not maintainable.
As per the condition No.1 of the policy, the claim intimation has to be given to the respondent within one calendar month and the necessary documents need to be submitted within 90 days from the date of death. The respondent justified its repudiation of the claim.
3. The appellant filed her affidavit and the documents, Exs.A1 to A7. On behalf of the respondent, its Senior Divisional Manager filed his affidavit and the documents Exs.B1 and B2.
4. The District Forum dismissed the complaint on the premise that the appellant failed to explain the reasons for delay in submitting the claim to the respondent and that the claim made by the appellant is a belated one.
5. Feeling aggrieved by the order of the District Forum, the complainant has filed appeal contending on the premise that the District Forum ought to have passed the order considering the objection taken by the respondent in the letter dated 9.09.2005 pertaining to the delay in claim submission. It is contended that the respondent cannot repudiate the claim on one ground at first instance and on the other grounds subsequently and that the District Forum failed to consider the order of the JMFC, Chittapur which held that no case was made out against the accused no.2 and 3 for the offence under the provisions of the Indian Explosives Act.
6. It is contended that the statement of the appellant made in her affidavit cannot be held to be denied without cross examining her and that the District Forum considered the statement of the Assistant Station Officer which was not filed before it. It is contended that the respondent failed to examine any of the witnesses associated with Ex A7 and that the entire case against the insured stood abated. It is contended that the District Forum erroneously relied upon the interim order passed by the High Court in writ proceedings which loses its operation with the termination of the main case and that when main case is withdrawn, the findings on the interim application cannot be considered.
7. The counsels for the appellant and the respondent have filed written arguments.
8. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
9. The appellant is the wife and nominee of the insured Nalsasi Narsimhachary who obtained Janata Personal Accident Policy for sum assured of `5,00,000/-and on 12.07.2004 while he was travelling in a passenger train along with 2 others at Chattapur Railway Station he died due to an explosion. The two persons travelling with him were arrested and sent to judicial custody a case in crime number 110 of 2004 was registered against the deceased and the two others who travelled with him in the train when the explosion occurred. The appellant submitted claim on 1.03.2005 and the respondent-insurance company repudiated the claim on the groud that the appellant had not made claim intimation within 30 days and she did not submit claim within 90 days along with supporting documents.
10. Questioning repudiation of her claim, the appellant filed writ petition before the Honble High Court in W.P.No. 24448 of 2005 and the High Court condoning the delay in claim submission passed interim order directing the respondent to release the claim amount. As the respondent had not paid the insured amount in compliance of the order of the High Court, the appellant initiated contempt proceedings and on application filed by the respondent, the High Court vacated the interim direction dated 9.06.2009 and against that order, the appellant filed writ appeal in W.A.No. 1079 of 2010 which along with the writ petition was sought to be withdrawn and the High Court while dismissing the writ petition and writ appeal as withdrawn, granted liberty to the appellant to approach competent Forum.
11. The claim was repudiated on the ground that it was not submitted with in the prescribed time and there was a delay of 7 months and 17 days in submission of the claim. The repudiation letter reads as follows:
Claim intimation should be given within 30 days by claimant/GMSC Ltd., to NIC. In regards to claim services, claim form along with necessary supporting documents should be submitted within 90 days from the happening of the accident. Any claim submitted after 90 days shall not be entertained. Death certificate, first information report to police, final investigation report of policy, postmortem report and doctors certificate to be sent along with the claim form in case of death. For loss of limb/s permanent total disablement all the treatment papers of hospital/nursing home, disablement certificates and certificate of Medical Board to be sent. However, since you have intimate the accident after NIL months__days and/or submitted the claim after 7 months 17 days. It attracts violation of terms/conditions of policy as mentioned above. Accordingly we are not being able to entertain you claim as no claim and we are treating the claim as No Claim We regard the inconvenience caused.
12. The learned counsel for the appellant has submitted that there was no delay in submitting the claim from the date on which death certificate of the insured was obtained and he relied on the decision of the Honble Supreme Court reported in 2004(9) 146 in regard to interpretation of terms of contract which reads as follows:
In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however, reasonable, if the parties have not made it themselves:
Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for fire and extended to cover flood, cyclone etc., had come into being.
Proviso 1(b) and (e) of the insurance policy read as under:
Proviso No.1(b): the company shall not be liable under this Policy for whilst under the influence of intoxicating liquor or drugs Provisio No.1( E) : the Company shall not be liable under this Policy for: arising or resulting from the Insured Person committing any breach of law with criminal intent.
13. The learned counsel for the respondent contended that there was abnormal delay of 7 months and 17 days in submitting the claim which is clear violation of the terms and conditions of the insurance policy. He has supported the finding of the District Forum that the period spent in pursuing the writ proceedings cannot be excluded for the purpose of computation of period of limitation for filing the complaint. He has relied upon the following decisions:
It is humbly submitted that is a settled ratio of law that the Terms fo the Policy have to be construed as it is and nothing can be added or substracted from the same, as held by the Honble Supreme Court of India, reported in JT 2004 (8) SC 8, Untied India Insurance Company Limited Vs M/s Harchand Rai Chandan Lal.
Relaxation of terms and conditions of the policy cannot be made when the policy was issued excluding., also held by the Honble Supreme Court of India, reported in 2009 (1) ALD 15 (SC), Deokar Exports Pvt Ltd., Vs New India Assurance Co.Ltd., The Honble National Consumer Commission held, the District Forum as well as State Commission had no jurisdiction to go beyond the terms and conditions of the policy bond report in II(1997) CPJ -4 (NC); LIC of India Vs Ramesh Chandra.
Hence there is no delay or deficiency of service on part of this respondent Insurance Company in repudiating the claim of the appellant/complainant in the circumstances as stated herein as per the terms and conditions of the policy.
14. The District Forum held that the insured was in intoxicated condition and he was carrying explosives with him at the time when the train met with accident due to explosion of explosives. The District Forum observed:
ExB2 is the terms and conditions of the policy and 1(a) is from intentional self-injury suicide or attempted suicide (b) is violated the terms under the influence of intoxicating liquor or drugs. Therefore, according to the opposite party in view of the statement of the Assistant Station Master Officer, Chittapur the deceased was in an intoxicated condition. Therefore, it amounts to violation of the condition 1(b). The Honble High Court also observed that the question of whether the husband of complainant was carrying explosives illegally and whether he was in intoxicating condition at the time when explosion has taken place cannot be taken into and deciding the petition. Therefore, this fact whether the husband of the complainant and his two relatives were carrying explosives illegally and whether they were in intoxicated condition has to be enquired. Therefore, the final order of the Magistrate which filed by the complainant as Ex.A7 will reveal that the husband of the complainant was charge sheeted for the offence u/s 5 & 9 (B) (b) Indian Explosive Act R/w 5 Explosive Rules 1983. Therefore, the charge sheet reveals that the deceased was carrying explosives along with him. The contention of the learned counsel for the complainant is that the case as abated and there is no evidence that the deceased was carrying explosives is not acceptable in view of Ex.A7 iteslf. It is also a fact that the deceased and his two relatives were in a drunken condition and also according to the statement of the Assistant Station Master Officer, Chittapur Railway Station. Therefore in view of the terms and conditions of the policy as the policy holder that is the husband of the deceased violated the terms and conditions of the policy is not entitled to nay claim.
15. The learned counsel for the appellant has submitted that the respondent is estopped from refusing the claim on other grounds subsequent to the ground taken in ExA1 relating to delay in claim submission. He has contended that the documents filed by the respondent do not prove that the insured was in intoxicated condition and he was carrying explosives at the time the accident took place. He referred to the order of the JFMC, Chittapur, which reads as under:
The CPI Railway Wadi,P.S. submitted abated charge sheet against the accused Narsimha Chari S/o Pamachari and the CPI Railway Wadi P.S. the accused Pwan S/o Venkatesh Joshi and Raghavendra S/o Mukundrao were not charge sheeted which were shown in column No.13 a suspicious persons and CPI Railway Wadi P.S. submitted htat there is no evidence against the accused Pawan S/o Venkatesh Joshi and Raghavendra S/o Mukund Rao and prays for reasing the accused as per Sec.169 of Cr.P.C.
Perused the records and found that there is no case against the accused Pawan S/o Venkatesh Joshi and Raghavendra S/o Mukund Rao as per the final report of the CPI Railway Wadi P.S. & case against he accused Narasimha Chari S/o Ramachari is abated as dead, therefore, U/s 169 of Cr.P.C. the accused Pawan S/o Venkatesh Joshi and Raghavendra S/o Mukund Rao are released on executing personal bond for a sum of Rs.25,000/0 each with conditions that they shall directed to appear if and when so require before this Court, if court directs on a police report.
16. The question whether the insured was carrying with him at the time he was travelling in the train which met with accident due to explosion of explosives at Chittapur railway station requires detailed examination of the parties which is not possible in summary proceedings before Consumer Forum. The learned counsel for the respondent has contended that discharge of the other accused does not mean that the insured was not carrying the explosives in contravention of the terms of the insured policy. The District Forum observed that the discharge of the other accused in criminal case giving benefit of doubt to them would not entail the appellant to claim there was no evidence against her husband.
17. Benefit inclusion of time in pursuing the writ proceedings before the High Court was not extended by the District Forum as also there is another fact to be decided which deals with the submission of claim and the prescribed period for and all such questions can be addressed in the trial. For all these reasons, the matter need be decided by civil court.
18. In the result, the appeal is disposed of setting aside the order of the District Forum. The appellant is at liberty to approach appropriate and competent court/Forum. In the event the appellant approach the court/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 Honble Supreme Court in Trai Foods Ltd vs National Insurance Company Ltd and others reported in III (2012) CPJ 17.
MEMBER MEMBER Dt.30.09.2013 కె.ఎం.కె*