State Consumer Disputes Redressal Commission
The Oriental Insurance Co., Ltd. vs Jannu Rajaiah And Another on 25 April, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.123 OF 2012 AGAINST C.C.NO.117 OF 2010 DISTRICT FORUM KARIMNAGAR Between: The Oriental Insurance Co.,Ltd., Rep. by its Regional Manager Regional Office at 6-3-871 Greenlands Road, Begumpet, Hyderabad Appellant/opposite party A N D 1. Jannu Rajaiah S/o Durgaiah age 55 yrs, (father), Occ: Agriculturist R/o Dandepally Village of Elkakurthy Mandal Karimnagar Dist. 2. Jannu Bathukamma W/o Rajaiah Age 50 years, (Mother) R/o Dandepally Village of Elkakurthy Mandal Karimnagar Dist. Respondents/complainants Counsel for the Appellant M/s Bhaskar Poluri Counsel for the Respondent M/s K.Venkateshwarlu QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER THURSDAY THE TWENTY FIFTH DAY OF APRIL TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The opposite party is the appellant. The respondents filed complaint seeking for direction to the appellant to pay sum assured under insurance policy, `50,000/- with interest, compensation and costs.
2. The respondents are the parents of J.Kumaraswamy who was a member of a society, Dandepalli Purshula Podupu Sangam. The society obtained Janata Personal Accident Group Insurance Policy from the appellant on 11.01.2007 for a sum of `50,000/- to each of its members. As per the terms of insurance policy the sum assured would be paid in case of accidental death of member of the society. The son of the respondents died in motor vehicle accident on 15.01.2007.The respondents submitted claim along with criminal case records to the appellant . They got issued notice on 24.04.2009 calling upon the appellant to pay the amount assured under the insurance policy.
3. The case of the respondents is that on 15.01.2007 they along with their son were waiting for bus at bus stop in front of Cinema theatre at Mulknaur village to go to Kothakonda and at the time a tractor bearing number AP-15-T/R-M-3508 came in rash and negligent manner dashed to their son causing grievous injuries on his head and other parts of body. The son of the respondents was shifted to MGM hospital and he died on his way to the hospital. The police concerned registered a case and conducted inquest over the dead body of the son of the respondents and thereafter the doctor conducted post mortem examination.
4. The appellant resisted the claim by filing written version and contended that there is no priviity of contract between the deceased and the appellant and that the deceased along with others went to Kothakonda in a tractor and while returning the deceased drove the tractor till it reached a wine shop at Mulknaur where the deceased, the driver of the tractor, Ravi and six others consumed liquor and while Ravi was driving the tractor, the deceased attempted to move from the place on the tractor near the engine to its trailer and in the process he fell down on the ground and came under wheels. As such the claim was repudiated.
5. The respondent no.1 filed his affidavit and the documents, ExA1 to A10. On behalf of the appellant, its divisional manager filed his affidavit. No documents were filed on behalf of the appellant. The documents copy of investigation report and terms and conditions of the insurance policy though filed along with the affidavit, the documents were not marked.
6. The District Forum allowed the complaint on the premise that the appellant did not choose to file the terms and conditions attached to the insurance policy and that the appellant failed to produce evidence in support of their claim that the deceased fell down from the running tractor while moving from the space at engine to the trailer of the tractor. The District Forum held that since the claim is not settled the appellant committed deficiency in service.
7. The opposite party has filed appeal contending that the district forum failed to take into consideration the terms and conditions of the policy issued in the name of Dandepalli Purshula Podupu Sangam and that the District Forum failed to take into consideration there was negligence of the insured resulting in his death. It is contended that the District Forum failed to consider that the deceased was under the influence of alcohol and the post mortem report shows that there was nearly 150 ml of liquor in the stomach of the deceased. It is contended that the order for policy amount `50,000/- and costs of `1,000/-
is illegal. It is contended that the order of the District Forum is contrary to law and evidence on record.
8. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
9. The son of the respondents was a member of the society,Dandepalli Purshula Podupu Sangam and the society obtained Janata Personal Accident Group Insurance Policy from the appellant for its 361 members valid for one year from 11.01.2007 to 10.01.2008. ExA1 is the photocopy of the insurance policy.
10. The learned counsel for the appellant has contended that due to oversight of the counsel for the appellant before the District Forum, the investigators report and terms of the insurance policy were not marked before the District Forum. He has submitted that for the District Forum ought to have considered the documents filed by the appellant and for the lapse on the part of its counsel, the appellant cannot be penalized.
11. The learned counsel for the appellant has filed application to receive the investigator report as additional evidence and the learned counsel for the respondent has filed counter contending that the investigators report cannot be received as additional evidence. He has contended that for the first time the investigators report is filed during pendency of the appeal. A perusal of the District Forums record would show that the appellant has already filed the investigators report and terms and conditions of the insurance policy. The District Forum marked the documents when heard the counsel for the parties and at the time the documents filed by the respondent were marked and the documents filed by the appellant had not been marked.
12. The District Forum failed to consider that the documents filed by the appellant though the docket order dated 2.05.2011 does show that the appellant filed affidavit along with documents. The documents on the side of the respondent were marked and the case was reserved for order. The District Forum when marked the documents filed by the respondent, it ought to have marked the documents filed on behalf of the appellant particularly when the documents were filed along with affidavit and found mention in the affidavit of the divisional manager of the appellant-insurance company. As the documents were already filed along with affidavit and a specific mention of the same being found in the affidavit of the of the divisional manager of the appellant-insurance company, essentially the documents require consideration. The order passed without considering the documents placed on record suffers from perverse appreciation of facts and is liable to be set aside.
13. The learned counsel for the appellant has submitted that the investigation report and statement of the members of Dandepalli Purshula Podupu Sangam and the sarpanch of the village would confirm the appellants contention and that as per the terms and conditions of the policy no amount is payable as he was in intoxicated condition. He has submitted that yet the District Forum observed that the appellant did not choose to file the terms and conditions attached to policy under ExA1.
14. The learned counsel for the respondent has submitted that the police record would show that the respondents son died while they were waiting for bus stop in front of cinema theatre the accident occurred. He sought for time to submit citations in support of the respondents case and finally referred to the decisions relied upon by the learned counsel for the respondent before the District Forum. The decisions relied upon by the respondent and referred to by the District Forum in its order are : 1. Decision reported in 2011(1) ALD 340 and
2. 2010 (4) CPR 424 The respondent relied upon the decisions to contend that consumption of alcohol is not sufficient to hold the driver of vehicle unable to drive the vehicle or not capable of exercising proper control over the vehicle.
15. The learned counsel for the respondent contending that the quantity of alcohol is not sufficient to hold the deceased incapable of exercising control over self as held by the District Forum supported the version of the appellant that the deceased was under the influence of alcohol while he was moving from the place near the engine of running tractor to its trailer. The District Forum failed to consider the principle laid in the decision of the High court as regards to quantity of alcohol in the blood of the driver to hold him incapable of exercising proper control is not applicable to the case where a person who under the influence of alcohol was hopping on to the trailer of a running tractor.
16. Even otherwise, it is to be noted that the report of post mortem examination was conducted on the dead body of the deceased about 36 hours after his death and by the time the quantity of alcohol present in his stomach was reduced to 150 ml. Thus, on both counts, the decision relied upon by the respondent and referred to by the District Forum are not applicable to the facts of the case on hand. The District Forum failed to consider that it is not every decision and the principle laid in the decision only has to be applied depending upon the nature and scope of its applicability to the facts of the case.
17. The appellant in its reply under ExA3 to the notice of the respondents referring to the investigation got conducted by it, narrated as to how the accident happened as:
That as per the investigation and information gathered by my client that on 15.01.2007 at about 6.00 p.m. Sri Katkuri Ravi the owner of the tractor bearing NO.AP-15-T/R-M-3508 came along with his friends to the house of deceased Jannu Kumara Swamy at Dandepally village and took him to Jatharaat Kothakonda village. The said tractor driven by the deceased Jannu Kumara swamy, while they reached the Bus stand, Mulkanur, they saw known persons at the Brandy shop and stopped their tractor, the deceased consumed wine and come back. Later Katkuri Ravi driven the said tractor and the deceased sat on the engine and about six persons were in the trailer of the said tractor. That after passing one kilo meter, Katkuri Ravi driven the said tractor with high speed and the deceased Jannu Kumara Swamy trying to come towards the persons who was sitting in the trailer fell down under the wheel of the trailer of the tractor. In themeanwhile another tractor of the deceased village came there and they shifted the injured Jannu Kumara Swamy to MGM Hospital, Warangal, while on the way to Hospital Jannu Kumara Swamy succumbed to injuries.
18. The reply of the appellant has referred to the time gap in between the time the accident occurred and the complaint was lodged with the police and post mortem examination conducted as under:
That as per the post-mortem examination report the deceased sustained the head injuries and his stomach contains about 150 ml of brownish coloured fluid with a smell of alcohol present. The alleged accident took place on 15.01.2007, whereas the complaint lodged by the father of the deceased on 17.01.2007 and the PME was conducted on 17.01.2007 i.e., after two days from the date of the death.
19. The District Forum observed that quantity of 150 ml of alcohol found in the stomach of the deceased is not sufficient to come to conclusion that the deceased was not capable of exercising proper control over him. The absurdity of finding can be gauzed from the FIR and Report of Postmortem examination that postmortem was conducted two days after the death of the insured. The reply of the appellant does not find place in the discussion of the District Forum.
20. The appellant in its reply brought to the notice of the respondents that the accident occurred on 15.01.2009 and the son of the respondents died on the same day which was not reported to the police for two days without explaining any reason for the delay. The reply supported by the investigators report strengthens the reasonableness of repudiation of the claim.
21. The delay in lodging complaint without assigning any reason would lend support to the opinion of the investigator that the accident occurred while the deceased was jumping into the trailer of the tractor from the place somewhere near the tractors engine and he was under the influence of alcohol making him incapable of exercising control in doing the act in question. In the circumstances, the respondents are not found entitled to any amount.
22. In the result, the appeal is allowed setting aside the order of the District Forum.
Consequently, the complaint is dismissed. There shall be no order as to costs.
Sd/-
MEMBER Sd/-
MEMBER Dt.25.04.2013 కె.ఎం.కె*