New India Assurance Co. Ltd. vs Prasanth

OPPOSITE party in O.P. No. 68/2001 on the file of the Consumer Disputes Redressal Commission, Alappuzha is the appellant.

COMPLAINANT''s case before the District Forum was that his father obtained Karshaka Raksha Insurance Policy from the opposite party for the period from 2.10.2000 to 1.10.2001. He died on 10.11.2000 by drowning, complainant was the nominee. Though claim was made, that was repudiated. He alleged deficiency and, therefore, wanted direction. In the version by the opposite party they contended that the insured fell into the Thodu due to epilepsy and he died. The said peril is excluded in the policy. Therefore, the repudiation is valid. They wanted dismissal of the complaint. The complainant gave evidence as P.W. 1. P.W. 2 is the person who gave Exbt. B3 first information and P.W. 3 conducted the post mortem and issued Exbt. B3 post mortem report. The opposite party produced Exbts. B1 and B6. On a consideration of the said material District Forum made the impugned direction to the opposite party to pay the insured amount with interest. It is the said direction that is under challenge in this appeal.

Learned Counsel for the appellant urged that the District Forum did not properly appreciate the evidence particularly in the context of the relevant Exclusion Clause No. 4 of Exbt. B1 policy. It is urged by the learned Counsel that the materials produced before the District Forum would have revealed that the insured fell in the Thodu due to epilepsy which is excluded in Clause 4 of the policy. There being the material before the District Forum, in support of the defence the District Forum, it is urged, the interference is called for.

WE perused the impugned order, in paragraph 6 onwards the District Forum discusses the relevancy and probative value of the evidence tendered on behalf of both parties. It will be noted that the final report under Section 173, Criminal Procedure Code, Exbt. B5 is projected as the material piece of evidence. In the context the evidence of P.W. 2 the person who tendered the F.I. Statement is of importance he disowned to his having stated before the police that the deceased had epilepsy or that he fell into the Thodu due to epilepsy. The doctor who conducted the post mortem, P.W. 3 would say only that the deceased died because of asphyxia due to drowning that need not show that the deceased had epilepsy. The probative value of Exbt. B5 final report has to be tested against the aforesaid evidence given by P.Ws. 2 and 3. Apart from the same the statements in a final report under Section 173, Cr.P.C. can be treated only as the final opinion of the investigating agency. Therefore, the aforesaid materials which now is relied on to support the argument for the opposite party that the opposite party is entitled to the benefit of the exclusion clause cannot be accepted. When such is the position we see nothing to interfere, appeal fails, dismissed. Appeal dismissed.