POGU NARAYANA vs Oriental Insurance Company Ltd.

AGGRIEVED by the order in C.D. No. 285/2002 on the file of District Forum, Nizamabad, the complainants preferred this appeal.

THE brief facts as set out in the complaint are that the complainant Nos. 1 and 2 are the sons of late Pogu Hanumanthu, who was a member of the opposite party No. 2 society, was insured under Group Personal Accident Policy of the opposite party No. 1 and died on 14.11.1999 due to drowning in a canal by accidental fall. THE police registered the case and held inquest and post-mortem was also conducted and Dr. K. Venkatarao, Civil Asst. Surgeon, who conducted autopsy opined that the cause of death is due to drowning. THEreafter the complainants made a claim for Rs. 1,00,000 submitting all the necessary documents and on 27.4.2001, opposite party No. 1 informed opposite party No. 2 that the complainants are not entitled to the insurance amount as the deceased was insane and fell down into the canal due to insanity and died due to asphyxia which is not an accidental death. THE complainants submit that the deceased was not an insane person and the police filed a final report stating that the deceased fell down accidentally and died while bathing after washing his clothes. Hence the complaint seeking a direction to opposite party No. 1 to pay the insurance amount of Rs. 1,00,000 with interest at 24% p.a. and compensation of Rs. 25,000 and other reliefs. Opposite Party No. 1 filed counter admitting the issuance of Group Personal Accident Policy to opposite party No. 2 for its members through opposite party No. 3 and contends that the information of death of late P. Hanumanthu was given after 30 days which is a contravention of condition No. 1 of the policy. They further contended that the claim attracts exception Clause 5(d) of the policy which states that the opposite party is not liable to pay compensation in respect of death if it falls directly or indirectly by veneral diseases or insanity and the life assured died due to insanity. They further submitted that the complaint is not filed within 12 calendar months from the date of repudiation by them and hence the claim is deemed to have been abandoned by the claimant. They admit that they sent letter dated 27.4.2001 to opposite party No. 2 repudiating the claim and stated that the complainants are not entitled for the insurance amount as the life assured died due to insanity. They contend that the claim is not genuine and submitted that soon after the receipt of the documents, they appointed G. Venkata Prasad Reddy to assess the truth of the claim and after thorough inquiries he submitted his report stating that the deceased died due to insanity and the final report submitted by the Police is also to the same effect and, therefore, there is no deficiency of service on their behalf.

Opposite party No. 2 submitted that the complainant No. 1 gave his application dated 25.12.1999 claiming the insurance amount and immediately they sent the same to opposite party No. 1 through a letter along with the claim form and after receipt of the same, they received a letter from opposite party No. 1 stating that the death of the life assured is not within the purview of the policy and they accordingly informed the same to the complainant. Again on 23.3.2001, he wrote a letter to opposite party No. 1 seeking details as to how the claim is not within the purview of the policy. Opposite Party No. 1 sent letter dated 27.4.2001 stating that the life assured died in the canal due to insanity which attracts exclusion Clause 5(d) and, therefore, submitted that there is no deficiency of service on their behalf.

OPPOSITE party No. 3 remained ex parte despite service of notice. The District Forum based on the evidence adduced and the pleadings put forward, dismissed the complaint.

AGGRIEVED by the said order, the complainants preferred this appeal. The learned Counsel for the appellants/complainants submitted that the life assured, late Pogu Hanumanthu, died on 14.11.1999 due to drowning in a canal by accidental fall and the Police have registered a case and held inquest and they got post-mortem examination done. Even the Civil Asst. Surgeon, who conducted autopsy opined that the cause of death is due to drowning. The learned Counsel contended that the deceased was very much healthy and not at all insane during his lifetime. Ex. A2, which is the final report of the Police, states that the deceased fell down accidentally into a canal and died while bathing after washing clothes, which is a sufficient and conclusive proof and, therefore, the appellants are entitled for the claim amount. The learned Counsel further contended that even if there is any delay in making the claim, it is only because there is exchange of correspondence between the society and the Insurance Company and that cannot be a ground for repudiating the claim. He also contended that the claim is well within the period of limitation and the respondents/opposite party No. 1 pleds that the complaint was not filed within 12 months of the date of repudiation cannot be sustained. The appellants also filed written arguments. The learned Counsel for R1 submits that the final report of the Police states that the deceased was of unsound mind and suppressed this fact prior to the issuance of the policy and it was only because of his insanity that he drowned in the canal and this attracts Clause 5(d) of the Insurance policy and, therefore, the repudiation is justified. He further submitted that the complaint is not filed within 12 calendar months from the date of repudiation by the appellants and hence the claim is deemed to have been abandoned by the claimant.

THE learned Counsel for R2 representing the society submitted that he is only a facilitator and has forwarded the papers to the Insurance Company and if there is any deficiency of service, it is the Insurance Company that has to pay and not the society and prayed for dismissal of the appeal.

WE have gone through the material on record. WE first address ourselves to the aspect of limitation which the learned Counsel for the respondent/opposite party No. 1 has raised stating that the complaint was not filed within 12 months from the date of repudiation as per Consumer Protection Act, 1986. As per the provisions of Consumer Protection Act, 1986, the period of limitation is 2 years from the date of cause of action which in the present case is 27.4.2001 i.e., the date of repudiation and the present complaint is filed on 28.10.2002 it is well within the period of limitation. The application by the first appellant was given on 25.12.1999 to respondent No. 2 reporting death of his father, late Hanumanthu, and on the same day i.e., 25.12.1999, the respondent No. 2 wrote letter to respondent No. 1 claiming the insurance amount. The death admittedly took place on 14.11.1999 and respondent/opposite party No. 1''s contention that the claim was not made within 30 days of the death and, therefore, violates condition No. 1 of the policy is also unsustainable in view of the judgment of the National Commission in 2000 NCJ (NC) 406, wherein it was held by the National Commission that "merely because the claim is not made within the stipulated period, it is not void." The Apex Court in United India Insurance Co. Ltd. v. M.K.J. Corporation reported in III (1996) CPJ 8 (SC)=1998 (2) Con.LT 489 (SC), held that "two months is reasonable time for the Insurance Company to take a decision, whether the claim requires to be settled or rejected in accordance with the policy." Now we address ourselves to the point, whether respondent No. 1 Insurance Company was able to establish that the deceased was insane and if the repudiation is justified. Ex. A2 is the final report given by the Police stating that the deceased went to the said canal for bathing and after washing his dhoti, he might have fallen down accidentally and due to old age he drowned and concluded that it is an accidental death. Ex. A3 is the post-mortem report which states that the cause of death is asphyxia due to drowning. Ex. A5 is the repudiation letter dated 27.4.2001 issued by the Insurance Company stating that the person was meant to be unsound and was seen begging prior to his death. Respondent No. 1 relied on Ex. B3, which is a xerox copy and states that the deceased is of unsound mind and used to beg. This sentence is not reflected in Ex. A2, which is also the final report (typed copy) of the Police dated 27.11.1999 and has been signed by the Sub-Inspector of Police. Even Ex. B3 on which the learned Counsel for the respondent Counsel is relying opined that the cause of death was same except for this statement that was missing in Ex. A2, the respondent No. 1 did not file third party affidavits or any other substantial evidence to prove that the deceased was insane prior to the issuance of the policy and this fact was deliberately suppressed. It is also pertinent to note that the deceased is a small farmer and became a member of the second respondent society and the insurance coverage is provided for the benefit of the member/borrower to protect from unfortunate incidents. It is for the respondent No. 1 to establish that in spite of the life assured being insane, he still became a member of the society and insurance coverage ought not to have been provided. WE reiterate that there is no documentary evidence to subsantiate their contention that the life assured was insane which led to his accidental drowning when the accident is not in dispute and the policy issued is not in dispute and the cause of death i.e., asphyxia is not in dispute. It is for the respondent No. 1 to prove the ''insanity'' of the life assured which they failed to do so by filing documentary evidence. Exs. A2 and B3 are contradictory with respect to sentence of insanity and it is the respondent No. 1 contention that the life assured was insane and ought to have proved their case by adducing evidence which they failed to do so. Therefore, we are of the considered opinion that the District Forum erred in dismissing the complaint both on grounds of limitation as well as relying on Ex. B3. Hence we allow the appeal and set aside the order of the District Forum holding that the repudiation is unjustified. The case against respondents/opposite party Nos. 2 and 3 is dismissed since they are only facilitators and we direct respondent No. 1 Insurance Company only to pay the claim amount of Rs. 1,00,000 with interest at 9% from the date of repudiation i.e., 27.4.2001 till the date of realization together with costs of Rs. 2,000 within a period of six weeks from the date of receipt of this order. In the result the appeal is allowed and the order of the District Forum is set aside directing respondent No. 1, Insurance Company, to pay the claim amount of Rs. 1,00,000 with interest at 9% from the date of repudiation i.e., 27.4.2001 till the date of realization together with costs of Rs. 2,000 within a period of six weeks from the date of receipt of this order. The appeal against respondents/opposite party Nos. 2 and 3 is dismissed since they are only facilitators. Appeal allowed.