State Consumer Disputes Redressal Commission
Mr. Nakkawar Laxman S/O Balaiah, vs 1. M/S. Icici Lombard General Insurance ... on 27 February, 2013
P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD C. C.No.98 OF 2011 Between : Mr. Nakkawar Laxman S/o Balaiah, Aged about 46 years, Occ : Tent House Business, Indian, R/o Ambica Tent House Armoor Road, OPp: Hibidi Karkana, Nizamabad 503 224 Andhra Pradesh Complainant A N D 1. M/s. ICICI Lombard General Insurance Company Ltd Retail Claims Division, 4th floor, Inter face 11, Mald Link Road Mald ( West ), Mumbai 400 064 Maharashtra ,Rep. by its Chairman & Managing Director 2. M/s. ICICI Lombard General Insurance Company Ltd Main Road, Nizamabad, rep. by its Branch Manager Opposite parties Counsel for the Complainant M/s. K. Visweswara Rao Counsel for the Opposite parties M/s. S. ShravanKumar QUORUM: SRI R.LAKSHMI NARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER WEDNESDAY THE TWENTY SEVENTH DAY OF FEBRUARY TWO THOUSAND THIRTEEN Oral Order:(Per Sri R.Lakshmi Narasimha Rao, Honble Member.) ***
1. The complaint is filed U/s. 17(1)(a)(i) of Consumer Protection Act, 1986 seeking direction to the opposite parties to pay the sum assured an amount of `25 lakhs with interest @ 12% P.A., and to pay compensation of `1,00,000/-
towards mental agony and costs of `20,000/-.
2. The brief facts of the complaint are that Mr. Nakkawar Ravi has obtained General Insurance Policy bearing No. 4111/PLB/56234780/00/000 for the period from 20.02.2009 to 19.02.2010 for `25 lakhs under the name and style of Personal Protect Plan 3 on payment of premium @ `4,129/- for which the complainant is appointed as nominee. The policy holder met with a Road Accident and died on 26.04.2009 due to head injuries and other crush injuries all over the body and died at the spot. The police instead of registering the death of the insured as an accident, registered it as murder case and the complainant was impleaded as accused no. 2 with ulterior motives U/s. 302 and 201 IPC and that the Sessions Court, Nizamabad dismissed the complaint due to lack evidence. In spite of requests made by the complainant, being the nominee, with all necessary documents to pay `25 lakhs as per the terms and conditions of the policy, the opposite parties postponed the payment of the same on one pretext or the other. The complainant got issued notice to the opposite parties on 03.01.2011 and thereafter reminder on 21.03.2011. Hence, the complaint.
3. The opposite parties resisted the claim contending that the complaint requires elaborate evidence which cannot be decided summarily under the provisions of C P Act. The complainant is not the nominee of the insured. As per the charge sheet the complainant and his son murdered the deceased and created the scene as road accident and police charge sheeted both the complainant and his son U/s. 302 and 201 IPC for murdering the deceased after 65th day of issuance of the policy in order to gain wrongful claim of the insured amount.
4. The Sessions Court acquitted the complainant and his son on the ground that prosecution failed to prove the guilt of the accused but there is no finding by the court that the death is due to accident or the deceased was not killed by the complainant and his son. The death of the deceased is not covered under the policy and therefore the complainant is not entitled for the insured amount and the complainant mislead this Commission and laid a false claim and that there is no deficiency in service or unfair trade practice and thus prayed to dismiss the complaint.
5. The complainant filed his affidavit and the documents Ex. A1 to A25 . On behalf fo the opposite parties, its legal Manager filed his affidavit and the documents, Ex. B1 to B26.
6. The points for consideration are:
1.
Whether the complainant is the nominee of the deceased, Mr Nakkawar Ravi in respect of the policy in question ?
2. Whether the death of the deceased is accidental and is covered under the policy ?
3. Whether the complainant is entitled for the reliefs as prayed for?
7. POINT NO.1: There is no dispute of the fact that Nakkawar Ravi had taken has obtained General Insurance Policy bearing No. 4111/PLB/56234780/00/000 for the period from 20.02.2009 to 19.02.2010 for `25 lakhs under the name and style of Personal Protect Plan 3 on payment of premium @ `4,129/- and that within 65 days of taking the policy he died. According to the complainant, he is no other than the own brother of the deceased and also nominee in respect of the said policy. The opposite parties disputed about the nomination in favour of the complainant. As seen from Ex. A1 insurance policy, Nakkawar Laxman is the nominee and relationship of the nominee with the insured is shown as brother.
However, fathers name of the insured or the said nominee is not described in the said policy. As seen from the cause title, fathers name of the complainant is Balaiah. In Ex. B-10 certified copy of inquest report the deceased insured , ie. Nakkawar Ravi is shown as the son of Balaiah. Further Ex. A7 family members Certificate dt. 3.6.2011, issued by Tahsildar, Dichpalli reveals that the deceased is no other than the brother of the complainant. Thus, the opposite parties did not rebut the said aspect with any convincing means and therefore we are inclined to hold that the complainant is the nominee of the deceased in respect of the insurance policy and thus point no. 1 is decided in favour of the complainant accordingly.
8. POINT NO.2 Basing on the judgement of the Sessions Court Nizamabad in S.C.No.73 of 2010, the complainant has claimed that the insured died in road accident and as such he is entitled to the sum assured Rs.25 lakhs. The Sessions Court held that the prosecution has failed to prove the case beyond reasonable doubt and the sessions judge opined that he was not satisfied with the evidence placed before him to convict the accused therein.
9. It is cardinal principle of law that for deciding a criminal case, it has to be proved beyond reasonable doubt whereas in civil cases degree of evidence required is of lesser degree and it can be decided on preponderance of probabilities.
10. The Honble Supreme Court has drawn distinction between the proof required for decision in civil and criminal cases in Jacob Mathew Vs State of Punjab III (2005) CPJ 9 (SC), In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions, [1937] A.C. 576, stated, "Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established." Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case ___ "A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesworth & Percy, ibid, Para 1.13) Therefore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree.
11. Thus, the acquittal of the accused in the sessions case basing on the observation of the court that the evidence placed before it was not sufficient to connect the accused to the offence, it cannot be said that acquittal of the accused by itself would be sufficient to draw inference that the insured died in a motor vehicle accident.
12. The Village Revenue Officer, Mopal has lodged complaint with Police, Nizamabad Police Rural on 26.4.2009 expressing his opinion that some unidentified persons murdered the insured and had shown the incident as an accident. The doctor who conducted PM examination on the body of the deceased insured deposed before the sessions court Nizamabad that the injury the deceased sustained would have been caused with a blunt object and the injuries mentioned are possible a weapon like iron rod deposited in this case. The deceased sustained injuries at occipital region of his head and no other injuries stated to have been found on his body. In order to show that the insured died in the motor vehicle accident, the complainant has not placed any evidence on record. The panchas also opined that the insured was made to appear to have been died in an accident. Thus, there is no contra evidence to show that the insured died in a road accident.
13. The learned counsel for the opposite parties has relied upon the decisions of this Commission in F.A.No.1518 of 2008 between the New India Assurance Ltd., Vs Kavali Ravindra Babu. It was held in that case that acquittal of accused in criminal case cannot be made basis for allowing the complaint on the ground that repudiation of the claim is unjustified it was held that:
14. For the foregoing reasons and in the light of the complainants failure to prove the death of the insured in an accident, we are of the considered opinion that the opposite party insurance company has not committed any deficiency in service in the matter of repudiation of the claim. The complaint is liable to be dismissed.
15. In the result the complaint is dismissed. The parties shall bear their own costs.
MEMBER MEMBER Dt.27.02.2013 కెఎంకె* APPENDIX OF EVIDENCE WITNESSES EXAMINED For complainants for opposite parties NIL NIL EXHIBITS MARKED For complainants Ex. A1 Personal Protect Policy bearing No. 4111/PLB/56234780/00/000, dated 20.02.2009 Ex. A2 The Brochure pertains to the Personal Protect Policy Plan 3.
Ex. A3 Express F.I.R, dated 26.04.2009 Ex. A4 Charge Sheet dated 11.09.2009 Ex. A5 Judgment in S.C.No 73/2010 dated 05.07.2010 Ex. A6 Death Certificate 03.05.2011 Ex. A7 Family Members certificate dated 03.06.2011 Ex. A8 Legal Notice dated 03.01.2011 Ex.A9 Acknowledgment Ex.A10 Reminder Notice dated 21.03.2011.
Ex.A11 Two number postal receipts, dated 22.03.2011 Ex.A12 Deposition of Witness, PW-9 Ex.A13 Deposition of Witness, PW-1 Ex.A14 Deposition of Witness, PW-2 Ex.A15 Deposition of Witness, PW-3 Ex.A16 Deposition of Witness, PW-4 Ex.A17 Deposition of Witness, PW-5 Ex.A18 Deposition of Witness, PW-6 Ex.A19 Deposition of Witness, PW-7 Ex.A20 Deposition of Witness, PW-8 Ex.A21 Deposition of Witness, PW-9Ex.A22 Deposition of Witness, PW-10 Ex.A23 Findings of police Ex.A24 Panchanama with scene of picture Ex.A25 Post Mortem Examination For opposite parties Ex.B1 Certificate cum police schedule Ex.B2 Certificate of judgment in CC.No.73 of 2010 Ex.B3 Certificate of Original complaint Ex.B4 First Information Report Ex.B5 Case Dairy Report Ex.B6 Photos Ex.B7 Case Dairy Part-II Ex.B8 Scene of offence Panchanama Ex.B9 Rough statement of scene of Panchanama Ex.B10 Inquest Ex.B11 Post Mertem Examination Ex.B12 Statement of Nakkawal Balakrishna Ex.B13 recovery of weapon panchanama Ex.B14 First Information Report Ex.B15 Statement of Nakkawal Laxman Ex.B16 Report/Opinion Ex.B17 Charge Sheet Ex.B18 Case Dairy Part-II Ex.B19 Case Dairy Part-II Ex.B20 Case Dairy Part-II Ex.B21 Case Dairy Part-II Ex.B22 Deposition of Witness Ex.B23 Deposition of Witness Ex.B24 Deposition of Witness Ex.B25 Deposition of Witness Ex.B26 Deposition of Witness MEMBER MEMBER