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2004 DIGILAW 8 (CHH)

KUNTI BAI v. ORIENTAL INSURANCE CO.

2004-01-07

V.K.AGRAWAL, VEENA MISRA

body2004
ORDER V.K. Agrawal 1. This complaint under section 17 read with 12 of Consumer Protection Act, 1986 (hereinafter called the 'Act' for short) has been filed for recovery of assured amount of Rs. 5,00,000/- under Janta Personal Accident Insurance Policy (hereinafter called the 'Janta Policy' for short) issued by the opposite party to the complainant. 2. The relevant facts not in dispute are that the complainant No. 1 is the wife of deceased Champalal and the remaining complainants are their children. The deceased Champalal was a member of the Steel Workers'• Union and in that capacity he obtained a Janta Policy from the opposite party respondent and certificate was issued by the opposite party respondent on 15-5-1999 assuring payment of the sum of Rs. 5,00,000/- in case of working spouse and Rs. 2,50,000/- in case of non-working spouse. The policy was effective from 9-1-1999 to 8-1-2011. It is also not in dispute that while the deceased Champalal was driving scooter No. M.P. 24 EA/4255 on 13-8-2000 and was coming from village Aledand to Bhilai met with an accident on way, near Chirchari Depot at about 8.30 PM. The friend of the deceased Shri Ghanshyam Levdas was pillion rider of the scooter. The deceased sustained injuries in the accident and died on the spot. The incident was reported to the police by his friend Ghanshyam Devdas. The police after investigation submitted a final report closing the case. 3. The complainant averred that on return journey it was mildly raining and while giving side to the truck coming from behind the deceased who was driving the scooter brought it to the side of the road. There was no street light on the spot and since the road had become slippery, the scooter fell down in a pit resulting in deceased sustaining fatal injuries. The post-mortem report disclosed that the cause of death of the deceased was due to fracture of bone damaging brain tissue. The complainant laid claim with opposite party respondent for the sum payable under the Janta Policy. The opposite party respondent by their letter dated 22-3-2001 repudiated the claim, on the ground that the deceased was driving the scooter in intoxicated state. 4. The opposite parties have: resisted the complaint. Averment by the opposite parties is that they had got the incident investigated and collected the material about the cause of death of the deceased Champalal. The opposite party respondent by their letter dated 22-3-2001 repudiated the claim, on the ground that the deceased was driving the scooter in intoxicated state. 4. The opposite parties have: resisted the complaint. Averment by the opposite parties is that they had got the incident investigated and collected the material about the cause of death of the deceased Champalal. It was discovered that the deceased was driving the scooter under the influence of liquor and was therefore, not entitled to the benefits under the Janta Policy issued in favour of the deceased, in view of clause 4( a) of the said policy. 5. Learned counsel for the complainant submitted that defence version of the opposite parties that deceased was driving the scooter under the influence of liquor is misconceived and without foundation. According to them the deceased never used to consume liquor and was not intoxicated at the time of accident. Occurrence was just a stroke of misfortune and the deceased lost control of the scooter on account of rains, absence of light and road having become slippery. It has been submitted that the affidavit of complainant No. 1 and that of his neighbour Nirmal Prasad Rathore would indicate that the deceased was not in the habit of consuming liquor and had not consumed liquor at the time of accident. It was therefore, submitted that repudiation of the claim of the complainant by the opposite parties was without• justification and that the assured sum under the Janta Policy be awarded in favour of the complainants. 6. Learned counsel for the opposite parties, however, submitted that police had recorded the report of pillion rider Ghanshyam Devdas immediately after the incident in which he has unequivocally stated that he as well as the deceased had consumed liquor before leaving for Bhilai. It was also urged by the learned counsel for the opposite parties that the police after enquiry had submitted a final report with the conclusion that when the accident took place the deceased was trying to overtake a truck and was driving the scooter after consuming liquor. It was also urged by the learned counsel for the opposite parties that the police after enquiry had submitted a final report with the conclusion that when the accident took place the deceased was trying to overtake a truck and was driving the scooter after consuming liquor. Opposite parties also appointed investigators who also came to the same conclusion after enquiry.' It was therefore, submitted that the opposite parties after due consideration of the matter, repudiated the claim of the complainants; as the assured sum under the Janta Policy was not payable in view of breach of condition No. 4(a) of the Janta Policy issued in favour of the deceased. It was further submitted that bonafide repudiation as above by the opposite parties cannot be treated as deficiency in service. 7. In view of the rival contention as above, it has to be considered as to whether there was breach of term of policy condition No. 4(a) of the Janta Policy? 8. There is no dispute that Janta Policy was issued in favour of the deceased Champalal and the same was in force at the time of his accidental death on 13-8-2000. The policy provides that the amount of policy would be payable on the conditions laid down therein. The proviso 4(a) to conditions of the said policy is that the insurer is not liable to pay the amount in case the accident took place and the cause of death of the deceased was due to effect of intoxicating liquor or drugs. Therefore, the question that arises for consideration is as to whether there is any reason to believe that the deceased at the time of incident has consumed and was under the influence of liquor. 9. In the above context, it may be noted that pillion rider Ghanshyam Devdas had reported to the police, the copy of which is filed on record, stating that he as well as the deceased had consumed liquor at Bortala along with one of their relatives Suku Ram and thereafter they had proceeded for Bhilai. He further reported that the deceased Champalal was driving the scooter and when they reached near Charchari Depot. 2 trucks from opposite directions approached and despite warning and caution given by Ghanshyam Devdas, the deceased could not keep balance of the scooter and they fell down near the road. He further reported that the deceased Champalal was driving the scooter and when they reached near Charchari Depot. 2 trucks from opposite directions approached and despite warning and caution given by Ghanshyam Devdas, the deceased could not keep balance of the scooter and they fell down near the road. The deceased sustained injuries on his head while the pillion rider Ghanshyam Devdas became unconscious. When Ghanshyam Devdas regained consciousness he lodged report. The police sent the dead body for post-mortem. After the post-mortem, final report was drawn by the police stating that the accident took place on account of the deceased driving the scooter after consuming liquor and in being not in a position to control the scooter. 10. The investigators appointed by the opposite parties also submitted their reports to the above effect. First Investigator Ramesh Kumar Patel (D7) submitted preliminary report and Rupesh Jawada (D-20) who submitted second report to the effect that the accident as above took place because the deceased was driving the scooter after consuming liquor. 11. Though, it is true that the complainants filed an affidavit of Ghanshyam Devdas sworne on 30-1-2002 in which he stated that he and the deceased had not consumed liquor. However, it may be noticed that the aforementioned affidavit has been sworne after about 11/2 years after the accident. In the first information report that was lodged by Ghanshyam Devdas, immediately after the incident he had clearly stated that he as well as the deceased along with one Suku Ram had consumed liquor just prior to the accident near Bortala. There is no reason why earlier version in the form of FIR of Ghanshyam Devdas recorded by the police should be disbelieved. The affidavit of Ghanshyam Devdas, is much belated and appears to be an afterthought. Affidavit of Kunti Bai, complainant No.1 and Nirmal Prasad Rathore have also been filed, in which it is stated that the deceased did not consume liquor. The affidavit as above cannot be of much use to the complainants, as they do not throw any light regarding happenings just prior to the occurrence. 12. In view of the above, there appears to be substantial material on record to indicate that the deceased was driving the scooter after consuming liquor resulting in accident. The affidavit as above cannot be of much use to the complainants, as they do not throw any light regarding happenings just prior to the occurrence. 12. In view of the above, there appears to be substantial material on record to indicate that the deceased was driving the scooter after consuming liquor resulting in accident. Therefore, it appears that the claim was bonafide repudiated by the opposite parties, in view of the proviso 4(a) of the Janta Policy, as noticed above. It may be noticed that in case of bona fide repudiation of the claim under the policy, by the insurer, the same cannot be treated as deficiency in service. 13. Reference in the above connection may be made to the decision of the National Commission in Sachin Balchandra Shah Vs. Oriental Insurance Co. 1 wherein it has been held that when the insurance had made investigation thoroughly and rejected the claim of the complainant as they have reasonable doubt regarding the genuineness of the case, it could not be termed as deficiency in service on the part of the insurer. 14. Similarly, National Commission in Jagdish Prasad Dagar Vs. Sr. Divisional Manager, LIC has laid down that once it is found that insurer had duly considered all the relevant facts and circumstances and taken a decision in good faith as to whether the claim put forward by the insured or nominee under the policy should be allowed to any extent, .it cannot be said that there has been any deficiency in service on the part of the insurer in relation to the performance of its duties under the contract terms. It has further been observed that where the decision to repudiate the liability has been communicated by the insurer without stating reasons or where the decision is taken arbitrarily or without due application of mind or otherwise than on good faith, the insured can in all such cases legitimately maintain an action before the Redressal Forum under the Act on the ground of deficiency. Reference in the above context may also be made to the decision of State Commission of M.P. in New India Assurance Co. Vs. Manish Udhyog & Another. 15. Reference in the above context may also be made to the decision of State Commission of M.P. in New India Assurance Co. Vs. Manish Udhyog & Another. 15. In the instant case also investigation was got conducted by the insurer regarding the claim of the complainant and on the basis of available material, and after due application of mind, it had in good faith came to the conclusion that there has been violation of proviso 4(a) of the Janta Policy. Accordingly, the claim was repudiated by the opposite parties. Therefore, it cannot be held that there was any deficiency in service on the part of the opposite parties. 16. Accordingly, this complaint cannot be allowed. It is accordingly dismissed. However the parties shall bear their own cost. Complaint Dismissed.