State Consumer Disputes Redressal Commission
1. R.Varalaxmi W/O Late R.Krishna And ... vs Golden Multi Services Club Ltd., And ... on 12 December, 2011
BEFORE A BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD FA NO.414 OF 2009 AGAINST C.C.No.31 OF 2007 DISTRICT FORUM NIZAMABAD Between: 1. R.Varalaxmi W/o late R.Krishna, aged 44 yrs, Occ:Housewife 2. R.Srinath S/o late R.Krishna aged 23 years, Occ:Student 3. R.Raghunath S/o late R.Krishna, aged 22 yrs, Occ:Student 4. R.VAmshi Krishna S/o late R.Krishna, aged 21 yrs, Occ:Student All are R/o H.No.11-1-1139, Chandrashekar Colony, Nizamabad Appellants/complainants A N D 1. Golden Multi Services Club Ltd., SB Mansion, 16, RN Mukherjee Road Kolkata-001 rep. through its person in charge 2. National Insurance Company Limited, Nizamabad, rep. through its Branch Manager Respondents/opposite parties Counsel for the Appellants Sri Y.S.Yellanand Gupta Counsel for the Respondent No.1 Sri S.Raj Kumar Counsel for the Respondent No.2 Sri N.Mohan Krishna QUORUM: SRI R.LAKSHMI NARASIMHA RAO, HONBLE MEMBER
AND SRI T.ASHOK KUMAR, HONBLE MEMBER MONDAY, THE TWELFTH DAY OF DECEMBER, TWO THOUSAND ELEVEN Oral Order:(Per Sri R.Lakshmi Narasimha Rao, Honble Member.) ***
1. The facts of the case are that the Divisional office of the second respondent insurance company issued Janata personal accident policy bearing number 100300/42/8200012 valid from 1-11-2004 to 31-10-2007 covering members of the first respondent company who include the first appellants husband. He had appointed his wife the first appellant as his wife. The sum assured under the insurance policy is `5,00,000/-. The first appellants husband died on 1-05-2006 while undergoing treatment in Sai Krishna Super Specialty Hospital at Kachiguda, Hyderabad. The Police, P.S Kachiguda registered a case in Crime No.122 of 2006 under Section 174 Cr.P.C. that an unknown vehicle dashed against the motor cycle of the deceased and sent the Case Diary file to the Police Nizamabad who re registered the crime number and after investigation concluding that the deceased was in intoxicated condition when he was proceeding on his Motor Cycle and fell down from the Moor Cycle The police filed Memo for closure of the case. The respondents no.1 to 3 lodged claim with the appellant insurance company.
2. The version of the respondent nos 1 to 3 is that the deceased met an accidental death on 1-05-2006 and the Police Nizamabad(Traffic) investigated the case and filed charge sheet stating that the deceased died accidentally. The opinion of the doctor who conducted post mortem on the body of the deceased opined the cause of death as head injury. As per the terms and conditions of the insurance policy the nominee is entitled to 100% of the sum insured in the event of accidental death of the policy holder.
3. The first respondent company resisted the claim that it is made a proforma party to the proceedings and that as per the terms of the MOU entered into, between the appellant insurance company and the first respondent company any dispute arising under the insurance policy has to be decided by Courts in Calcutta. It is stated that as per the clause no 15 of the MOU, claim intimation should be given within 30 days and documents should be submitted within 90 days from the date of happening of the incident. The respondents no.1 to 3 filed another case, C.C.No. 54 of 2007 ,in respect of the same cause of action.
4. It is contended on behalf of the appellant insurance company that as per the terms of the insurance policy the insured should sustain permanent disability or death due to accident caused by outward, violent and visible means. The policy does not cover the liability arising out of death or bodily injury from voluntary acts, committing intentional self injury under intoxication, suicide, attempted suicide etc., Claim intimation should be given within 30 days and documents have to be submitted within 90 days from the date of the accident. The Police Nizamabad after investigating the case filed final report before the Additional Judicial Magistrate of the First Class,Nizamabad and prior to that they sought for permission of the sub divisional Police Officer for closure of the case as action abated. There is delay of 12 days in lodging the complaint with the police,Kachiguda.The Polcie< Kachiguda has not recorded the statements of the independent witnesses, nor conducted inquest and they had not sent the vehcicle for inspection of the MVI. As per the terms of the insurance policy the claim should be filed within 12 months of the incident.
5. The first appellant has filed her affidavit and the documents, ExA1 to A11. On behalf of the respondents, the branch manager of the second respondent insurance company has filed his affidavit and ExB1 and B2 had been marked.
6. The District Forum dismissed the complaint opining that the documents filed by the appellants establish that the deceased died while under intoxicated condition.
7. Aggrieved by the order of the District Forum, the complainants filed the appeal contending that the death of the deceased is accidental and that the District Forum has not considered the report of the post mortem examination and other documents filed by the appellants which show that the cause of his death is head injury.
8. The points for consideration are :
1. Whether the first appellants husband had driven the motor cycle in intoxicated condition at the time of the accident?
2. Whether there was any deficiency in service on the part of the appellant insurance company in repudiating the claim?
3. To what relief?
9. POINT NOs 1 &2: The deceased husband of the first appellant was a member of the first respondent company. The first respondent company had obtained for its members who include the first appellants husband, Janata personal accident policy valid from 1-11-2004 to 31-10-2007. ExA1 is the insurance policy issued by the second respondent insurance company andExA2 is the certificate issued by the first respondent company. ExA1 is issued in favour of the all the members of the first respondent company and ExA2 specified the name of the first appellants husband as the beneficiary/insured in respect of ExA1, insurance policy. The death of the first appellants husband on 1-05-2006 is not disputed and it is needless to say that the insurance policy was operative on the date of his death.
10. It is the contention of the insurance company that the first appellants husband was in drunken condition when had driven the Motor Cycle in rash and negligent manner at the time of the accident and thereby he had violated the terms and conditions of the insurance policy. It was submitted that the insurance company is not liable to pay any amount to the respondent. The learned counsel for the second respondent insurance company supported the impugned order whereas the learned counsel for the appellants contended that as per the Report of the Post Mortem Examination, , the husband of the first appellant who had ridden on the Motor Cycle at the time of the accident had not consumed any liquor.
11. The first appellants brother-in-law has filed complaint with the Police ,Kachiguda that her husband while proceeding on his Motor Cycle at the Government Hospital, Nizamabad was knocked down by an unknown vehicle and to the effect the Police, registered a case in crime no. 122 of 2006..ExA5 to A8 are the copies of the Case Diary, requisition for closure of the case and final report of the Police Nizamabad. A perusal of these documents disclose that the deceased was in intoxicated state while proceeding on 18-04-2006 on his Motor Cycle and dashed to a divider of the road near Government Hospital, Nizamabad and on regarding information, the Head Constable posted at the Hospital shifted him to the Government Hospital and gave intimation to the first appellant as also to the police station concerned. The documents reveal that the first appellant had shifted her husband to Sai Krishna Hospital, Hyderabad instead of taking him to Osmania General Hospital as referred by the doctors at Government Hospital.
12. The Medical Record of Sai Krishna Super Specialty Hospital would show that the deceased was treated at Aravinda Laxmi Hospital, Nizamabad before being shifted to the Sai Krishna Hospital. The appellants had not mentioned the treatment undergone by the deceased at Aravinda Laxmi Hospital, Nizamabad. No complaint was lodged with the police for a period of 12 days after the deceased met with the accident. The District Forum has pointed out the discrepancy in the complaint lodged by the brother of the deceased and the pleadings of the complaint which disclose non-involvement of any other vehicle.
13. The learned counsel for the appellants contended that in absence of Forensic Science Laboratory Report, it cannot be concluded on the basis of the Final Report that the deceased was in drunken condition at the time of the accident. He has relied upon the decision of this Commission in R.Varalaxmi vs The New India Assurance Company Ltd F.A.No. 413 of 2009 . In that case the facts that first appellants husband died 12 days after the accident and prior to his undergoing treatment he was treated as inpatient in Government Hospital and Aravinda Laxmi Hospital, Nizamabad were not brought to the notice of this Commission.
14. The postmortem examination was conducted after a gap of 12 days and the viscera was not sent for forensic examination. The appellants cannot contend that since report of PME of the deceased as to the quantity of alcohol is silent, it has to be presumed that the deceaed had not consumed alcohol at the time of causing the accident. The deceased committed violation of terms and conditions of the insurance policy by driving the Motor Cycle in intoxicated condition as also driving it at high speed and in rash and negligent manner which are not only violation of the terms and conditions of the insurance policy and also the breach of the provisions of the motor vehicles Act. The Final Report and other police records proved the breach or the provisions of law committed by the deceased who was under the influence of liquor. The second respondent insurance company cannot be expected to take any steps when the appellants had intimated about the accident much beyond the period prescribed in the MOU.
15. The Consumer Fora would decide the rights of the parties in accordance with the terms and conditions of the agreements entered into between them via-a-vis deficiency in service by the service provider. In this case, the second respondent insurance company furnished the claim form immediately after receipt of the information though the claim was made beyond the stipulated period. Immediately after receipt of intimation, the second respondent insurance company issued letter dated 28-05-2007 requesting its investigator to conduct enquiry and copy of the letter was marked to the first appellant.
16. In the written arguments filed before the District Forum it is contended that mere delay in submitting the claim does not disentitle the appellants from claiming the amount. The decision of the National Commission reported in 2000NCJ (NC) and CPJ 2007 was relied upon. There is no dispute about the delayed submission of the claim. The dispute is in regard to non-submission of the relevant documents. Though the appellants stated that they have submitted all the relevant documents, they have not proved the fact as contended by the second respondent insurance company. After taking into consideration of the relevant facts borne of the records obtained by various agencies, the respondent no.2 insurance company has arrived at the conclusion that the deceased was in intoxicated condition and by driving the vehicle at high speed and in rash and negligent manner, violated the provisions of the Motor Vehicles Act and accordingly the appellant insurance company has rightly repudiated the claim of the respondent.
17. POINT NO.3 Points No.1 and 2 are decided against the respondents. In order to prove that the appellants are entitled to claim, they have to show crystallized right which is to be originated only on deficiency in service on the part of the appellant insurance company. As aforesaid deficiency in service on the part of the appellant company not made out nor proved by the appellants.
18. In the result, the appeal is dismissed confirming the order passed by the District Forum. No costs.
MEMBER MEMBER Dt.12.12.2011 KMK*