State Consumer Disputes Redressal CommissionThe New India Assurance Comapny Ltd., vs 1. Kuna Ramarao, on 18 February, 2015Daily Order 	    	       BEFORE THE   A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION   AT HYDERABAD             First Appeal No. FA/865/2013  (Arisen out of Order Dated 11/02/2013 in Case No. Complaint Case No. CC/49/2012 of District Srikakulam)             1. The New India Assurance Comapny Ltd.,  Rep. by its Manager, Divisional Office, Chenoy Trade Centre, Park Lane, Secunderabad-500003. ...........Appellant(s)   Versus      1. 1. Kuna Ramarao,   S/o. Veerappadu, Hindu, Aged about 57 Years, Advocate, R/o. Door No.6-7-30, Krishna Park, Srikakulam Topwn & District.  2. 2. Kuna Malleswari, D/o. Ramarao, W/o. Sampathirao Kesava Chandra, Hindu, Aged about 29 Years, Household, Duties,  R/o. Petapadu Village, Kotabommali Mandalam, Srikakulam District.  3. 3. Kuna Lalitha, D/o. Ramara W/o. Ponnada Murali, Hindu, Aged about 28 Years, R/o. 5th lane, P.N. Colony,  Srikakulam Town & District.  4. 4. Kuna Parameswara Rao, S/o. Ramarao, Hindu, Aged about 27 Years,   R/o. D.No.6-7-30, Kishna Park, Srikakulam Town & District.  5. 5. Bar Counsel of State of A.P.  Rep. by its Secreatory H.C. ...........Respondent(s)       	    BEFORE:      HONABLE MR. SRI R. LAXMI NARASIMHA RAO PRESIDING MEMBER    HON'ABLE MR. S. BHUJANGA RAO MEMBER          For the Appellant:  For the Respondent:     	    ORDER   

Counsel for the Appellant: Smt.I.Maamu Vani

 

 

 

Counsel for the Respondents:Mr.A.Rama Rao-R1 to R4

 

                                        Mr.M.Hari Babu-R5

 

 

 

QUORUM: SRI S.BHUJANGA RAO, HON'BLE MEMBER.AND

 

SRI R.LAKSHMINARASIMHA RAO, HON'BLE MEMBER.WEDNESDAY, THE EIGHTEENTH DAY OF FEBRUARY,

 

TWO THOUSAND FIFTEEN

 

 

 

 

 

 

 

  Order ( Per Sri S.Bhujanga Rao, Hon'ble Member.)

 

                                                                                                            ***

 

 

 

The appellant/opposite party filed the appeal aggrieved by the order dated 11-2-2013 of the District Forum, Srikakulam made in C.C.No.49/2012, whereunder the complaint filed by the respondents/complainants  against the respondent/opposite party alleging deficiency in service was allowed.For the sake of convenience, the parties are described as they are arrayed in the complaint.The brief case of the complainant as set out in the complaint is as follows:The complainant No.1  is a practicing advocate and complainants 2 to 4 are the children of complainant No.1 and the deceased K.Damayanthi is the wife of the complainant No.1. During the life time of his wife, complainant No.1 obtained Long Term Group Janata Personal Accident Policy bearing No.50/94 dated 23-2-99 by paying the required premium and the same was in force till 21-2-2014.  The complainant No.1 stated that during the subsistence of the policy, the wife of complainant No.1 died on 02-3-2011 evening due to train accident at Amadalavalasa and the railway Police registered a case in Cr.No.24/2011.  The complainant No.1, after the said accident, got issued a notice dated 19-4-2011 and intimated the same to the opposite party and demanded the insured amount, for which, there was no reply nor any amount was paid  to the complainants.  Alleging that the said act amounts to deficiency in service, the complainant approached the District Forum and filed the present complaint claiming the entire policy amount of Rs.2,50,000/- together with damges of Rs.20,000/- and costs.Opposite party No.1 filed counter denying the allegations made in the complaint and admitted that it issued long Term Janatha Personal Accident Policy in favour of the deceased Damayanthi but the same was terminated and cancelled in the year 2002 and the said fact was intimated to complainant No.1 vide letter dated 26-7-2002 under certificate of posting as per condition No.5 of the said policy.  Opposite party No.1 submitted that it refunded the premium amount for the unexpired period of insurance to the complainants and the same was received by them and hence it is not liable to pay the amount as claimed by the complainants.  Opposite party No.1 further submitted that they have every right to terminate the policy by giving notice in writing and such notice shall be deemed sufficient if posted and received by the insured as per condition No.5 of the terms and conditions of the said policy and submitted that there is no deficiency in service and prayed for dismissal of the complaint.Opposite party No.2 admitted that they have issued policy and claimed that they have rendered good service to the Advocate Members of A.P.State Bar Council for their welfare without taking any charges and if the complainants are entitled to any compensation, it is only from opposite party No.1 and not from them and submitted that they are not necessary party and prayed for dismissal of the complaint against them.During the course of enquiry before the District Forum, in order to prove their case,  the complainant  No.1 filed his evidence affidavit and got marked Ex.A1 to A7 and the opposite parties 1 and 2 also filed their  evidence affidavits of Divisional Manager and Secretary respectively  and got marked Ex.B1 to B3.Upon hearing the counsel for both parties and on consideration of the evidence adduced by both the parties, the District Forum came to the conclusion that there is  deficiency in service on the part of the opposite party No1.and directed it to pay the entire policy amount of Rs.2,50,000/- without interest within three months to the complainants and in default of such payment within the period, directed the opposite party No.1 to pay interest at 9% p.a. from the date of complaint i.e. 29-2-2012 till the date of realization  together with costs of Rs.3,000/- and dismissed the complaint against opposite party No.2.Aggrieved by the said order, the opposite party  preferred this appeal contending that the policy was cancelled by issuing letter dated 26-7-2002, which was marked as Ex.B1 and therefore the policy was not in existence as on 02-3-2011, when the assured i.e. the wife of complainant No.1 died.    That the District Forum erred in holding that the policy could be cancelled only after giving reasonable time and calling for remarks from complainant No.1.  That the District Forum ought to have considered that as per condition No.5 of the terms and conditions of the policy, the opposite party could terminate the policy at any time by giving notice in writing and such notice shall be deemed to be sufficiently given if posted to the addressed furnished by the insured and held that the appellant had issued cancellation notice on 26-7-2002 and the policy stood cancelled from 10-8-2002 and therefore not in force as on 02-3-2011 and that the complainants had knowledge about the cancellation of the policy and they filed a frivolous complaint.We heard the counsel for both the parties and perused the material placed on record including the written arguments filed by the appellant/opposite party and respondents/complainants.FA.IA.No.2383/2014 was filed by the appellant/opposite party to receive certificate of posting as additional evidence and the same was ordered and Ex.B4 certificate of posting was received as additional evidence.Now the point for consideration is whether the order of the District Forum is vitiated for mis-appreciation of fact or law?The first complainant, who is practicing advocate, effected long term Group Janata Personal Accident Policy bearing No.50/94 dated 23-2-1999 vide Ex.A1 with the opposite party by paying required premium amounts.  While the said policy was in force, the wife of the complainant No.1 by name, K.Damayanthi, died at Amadalavalasa due to train accident, while she was going to her relatives house on 02-3-2011 evening.  On the death of his wife, the complainant No.1 got issued a notice dated 19-4-2011, the copy of which is Ex.A2, to the opposite party by intimating the said accident and demanding the insurance amount under the said policy.  Since the opposite party did not respond to the said notice, the complainants, who are the respondents herein filed the consumer complaint for recovery of the insured sum.  All these facts are not in dispute and these facts are also proved by the evidence on record.The learned counsel for the appellant/opposite party has submitted in the written arguments that according to condition No.5 of the policy, the policy can be cancelled at any time after issuing registered notice to the insured.  The cancellation would be effective after 15 days from the date of notice of cancellation of the policy.  If the notice is sent by post to the address of the insured registered with the company,  the service is sufficient.  By letter dated 26-7-2002, which was sent under certificate of posting, the appellant cancelled the subject policy, therefore the policy was not in force from 01-8-2002 onwards.  As the wife of the respondent No.1/complainant No.1 died on 02-3-2011, no policy was existing as on the date of death of the wife of respondent No.1/complainant No.1.  Therefore, the appellant insurance company is not liable to indemnify the respondents/complainants under the subject policy.The learned counsel placed her reliance on the decision of the Hon'ble National Commission in the case ofAshok Jain V. Oriental Insurance Co.2012 (I) CPJ 150 (NC), wherein it was held that once condition No.5 is satisfied by sending notice to the address last registered in the book of the insurer, the same is deemed to have been received and therefore upheld the contention that insurance company that it need not pay any compensation.In view of the contention of the appellant, it is necessary to produce condition No.5 of the policy, which is as follows:The company may at any time by notice in writing terminate this policy/certificate  provided that the company shallin that casereturn to the insured then last paid premium in respect of such persons in respect of  whom no claim has arisen, less pro-rata part thereof for the portion of the current insurance period which shall have expired.  Such notice shall be deemed sufficiently given if posted addressed to the insured  at the address last registered in the company Books and shall be deemed to have been received by the insured at the time when the same would be delivered in the ordinary course of post.Ex.B1 is the copy of a notice dated 26-7-2002 said to have been issued by the appellant insurance company to the complainant No.1 informing the cancellation of long term Janata Personal Accident Policy No.50/94.  The appellant/opposite party claimed to have send this notice under certificate of posting.  Since the beginning, the contention of the respondents/complainants is that the appellant never sent the said notice to them and that they never received such notice either in person or through post.  The appellant/opposite party has not filed any document in proof of issuing of the said notice under certificate of posting before the District Forum.  However, they filed the certified true copy of list of persons to whom the notices were sent under certificate of posting and the numbers of the certificate of posting, before this Commission,                                                                                                                                                                                which is marked as Ex.B4 as additional evidence. No additional affidavit is filed on behalf of the appellant/opposite party in proof of Ex.B4.Further, it is the case of the respondents/complainants that the complainant No.1 got issued a notice dated 19-4-2011, the carbon copy of which is marked as Ex.A2, to the opposite party informing about the death of his wife, K.Damayanthi, and claiming the assured sum under the policy and that the opposite party received the said notice.  The respondents filed Ex.A3, the postal receipt along with the served postal acknowledgement.  The appellant/opposite party has not denied the receipt of the said notice either in their written version or in their evidence affidavit.  Admittedly the opposite party did not give any reply to the said notice stating that the policy has been terminated as contended by them.  The appellant/opposite party has not given any explanation for not issuing any reply notice denying any of the contents of Ex.A2 notice.  Therefore, an adverse inference has to be drawn against the opposite party to the effect that since the notice was not issued to the respondents terminating the policy, they allowed the contents of Ex.A2 notice unchallenged.  Under these circumstances, we are of the view that the presumption that the notice addressed to the complainant No.1 through post deemed to have been served on the complainant No.1 is rebutted .  Therefore, the burden is on the appellant/opposite party to place cogent evidence to prove that the said notice was served on the complainant No.1.  The appellant/opposite party did not place any cogent evidence in proof of service of Ex.B1 letter on the complainant No.1.Further, in Ex.B1, no reasons are given by the  appellant/opposite party for termination of the subject policy.  It is simply mentioned that as a matter of policy, their company has decided to terminate all long term Janata Personal Accident Policies.  Admittedly no notice was given by opposite party to the respondents/complainants or the insured, A.P.State Bar Council before terminating the policy.  The appellant/opposite party have not filed any evidence in proof of the fact that they have sent cheque to the complainants or the insured Bar council refunding the premium for the unexpired period of insurance as undertaken under Ex.B1 letter.  The specific case of the respondents/complainants is that they have not received  any premium amount from the appellant/opposite part., therefore, we are of the view that the appellant/opposite party  has failed to comply with condition No.5 of the policy in terminating the policy.   The Hon'ble High Court of AP in WP No. 12057/02 has observed as follows:"in a case of this nature, even if there is any genuine reason for cancelling the policy, the petitioner is entitled for a show cause notice and after inviting explanation, the authorities are at liberty to take action, what ever is justifiable, though the conditions of the policy do not say so.  In this case, no such effort was made by the respondent company, which is a public authority.  No reasons whatsoever have been furnished by the respondents in the said letter or in the counter for cancelling the policy,... In fact, in the guise of enabling condition No.5 of the terms of the policy, the respondents cannot unilaterally cancel the policy".In view of the above ruling of the Hon'ble High court of AP and in view of the facts and circumstances of the case, we are of the view that the appellant/opposite party unilaterally cancelled the policy without assigning any reasons.For the aforesaid facts and circumstances, we are of the view that there is deficiency in service on the part of the appellant/opposite party in settling the claim of the respondents/complainants.  Therefore we see no reasons to interfere with the well considered order of the District Forum.  Hence the appeal fails.In the result the appeal is dismissed confirming the order of the District Forum.  However, there shall be no order as to costs.  Time for compliance four weeks from the date of receipt of order copy.sd/-MEMBER.sd/- MEMBER.JM                                                                     Dt.18-02-2015.

 

                        //APPENDIX OF EVIDENCE//

 

 Exhibit marked on behalf of Appellant/OP:

 

Ex.B4- Copy of certificate of posting under certificate No.1620.

 

                                                                        sd/-MEMBER.

 

                                                                         sd/- MEMBER.JM                                                                     Dt.18-02-2015.             [HONABLE MR. SRI R. LAXMI NARASIMHA RAO]  PRESIDING MEMBER 
     [HON'ABLE MR. S. BHUJANGA RAO]  MEMBER