1.      This Common Order shall decide both the First Appeal Nos. 913 of 2015 & 3 of 2016 arising out from the impugned Order dated 13.08.2015 passed by the learned State Consumer Disputes Redressal Commission, Haryana, Panchkula (“State Commission”) in CC No.16 of 2014.

2.      As per report of the Registry, there is a delay of 30 days in filing of the First Appeal No.913 of 2015.  The said delay was condoned by this Commission vide order dated 11.10.2018.  In F.A. No.03 of 2016, as per office report, there is a delay of 88 days. For the reason stated in IA/400/2016, the delay is condoned.

3.      For Convenience, the parties in the present matter are being referred to as mentioned in the Complaint before the State Commission. “Anita Thakur” is identified as Complainant. "Kotak Mahindra Old Life Insurance Ltd. is referred to as the OP-1 and OP-3 and Kotak Mahindra Bank Limited is referred as the OP-2.

4.      The facts involved in both the Appeals are similar. For convenience, FA No. 913 of 2015 is treated as the lead case for brief facts only which are enumerated and taken mainly from Complaint No.16 of 2014.

5.      Brief facts of the case, as per the Complainant, are that Chander Mohan Thakur. The Deceased Life Assured (DLA), husband of Anita Thakur had purchased Life Insurance Policy, Kotak Preferred Term Plan (UIN-107N009V04) and Policy No.02651407 Kotak Mahindra Old Mutual Life Insurance Limited ('Insurance Company') - OP No.1 & 3, for Basic Sum Assured Rs.50 Lakhs for the policy term of 24 years with annual premium of Rs.45,000/-. He paid the first premium of Rs.45,000/- on 31.12.2012. The insured was murdered on 23.05.2013 near Ghaggar Railway Track Derabassi, District Mohali, Punjab. An FIR No.50 dated 11.06.2017 was filed in Police Station: Govt Railway Police Station, Patiala. The Complainant filed claim with the Insurer but it did not pay the insured amount. Hence, a Consumer Complaint filed before the State Commission.

6.      In reply, the Insurer - OP-1 & 3 contended that the 'cause of death' of the deceased was not ascertained and the claim was under investigation to ascertain whether death of the DLA was an accidental death or suicide. The Insurance Policy was issued on 31.12.2012 and within five months the insured died on 23.05.2013 and his dead body was found in mysterious circumstances. In case it is proved to be a suicide, the Insurer is not liable to pay the claim in terms of Clause 6 of the Policy. Denying any kind of deficiency in service, the Opposite Parties No.1 and 3 prayed for dismissal of the complaint.

7.      In reply, the OP-2 Bank contended that as regards the policy in question, the Complainant does not constitute a consumer of OP-2 Bank as she has not availed any service from OP-2 as defined under the Act, 1986. The OP-2 was wrongly included in the array of parties and the present complaint should be dismissed against the OP-2 as not being maintainable.

8.      The learned State Commission vide order dated 13.08.2015 allowed the Complaint No. 16 of 2014. The order stated:

“11.    In view of the above, there is nothing on the record to show that the opposite parties are not liable to pay the benefits of insurance to the complainant. Hence, the complaint is accepted. The opposite parties are directed to pay the insured amount, that is, Rs.50.00 lacs to the complainant alongwith interest at the rate of 9% per annum from the date of filing of the complaint till its realisation. Cost of litigation is quantified at Rs. 10,000/-. The opposite parties are directed to comply with the order within 45 days from today.”

9.      Dissatisfied by the Order of the learned State Commission dated 13.08.2015 in CC No. 16 of 2014, the OPs filed the present Appeals seeking:

In FA/913/2015-filed by OP-1 & 3-M/s Kotak Mahindra Mutual Life Ins. Ltd.

(a) Allow the appeal;

(b) Set-aside the order dated 13.08.2015 passed In Complaint No.16 of 2014 by the State Consumer Dispute Redressal Commission, Haryana, Panchkula and dismiss the complaint;

(b) Pass any other or further order which this Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.

In FA/3/2016-filed by the OP2-Kotak Mahindra Bank Ltd.

(a) Allow the appeal;

(b) Set-aside the order dated 13.08.2015 passed In Complaint No.16 of 2014 by the State Consumer Dispute Redressal Commission, Haryana, Panchkula and dismiss the complaint;

(b) Pass any other or further order which this Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.

10.    In Appeal No. 913/2015, OP-1 & 3/Appellants contended that the impugned order is erroneous, perverse, and one-sided. In terms of Clause-6 of the Policy, if the life assured commits suicide, no benefits are payable. The relevant extract from the policy document is reproduced hereunder:

"6. Suicide Exclusion:

If, within one year of the date of issue of this policy or date of revival, the life insured commits suicide, whether being sane or insane at the time of committing suicide, the policy shall cease to exist and all claim under the Policy shall cease."

11.    The Appellants contended that the DSP, State Crime Branch, Panchkula's report dated 10.11.2014 clearly mentions that the DLA had committed suicide by jumping before the train. Respondent No.1 (Complainant) did not disclose the fact that on 16.01.2014, the Hon'ble Punjab & Haryana High Court disposed of the petition of the Respondent No. 1 with the direction to transfer the investigation to the Crime Branch, Panchkula and also not mentioned about the report of the DSP Police, State Crime Branch, Panchkula dated 10.11.2014 wherein it was clearly stated that the DLA committed suicide at about 08:50 PM by jumping before the train. It was further contended the policy is a contract and all the benefits are payable strictly according to it. Clause-11 of the terms and conditions of the policy deals with claim which clearly provides that all the claims payable are subject to production of proof of claim event to the satisfaction of the company. However, Respondent No.1 concealed the report of the DSP, State Crime Branch Panchkula. As per Section 45 of the Insurance Act, the insurance company can challenge the policy on the ground of concealment of material fact by the insured within two years from the commencement of the policy. In the present case, the DLA died within five months from the date of issue of policy under mysterious circumstances. They relied upon the judgment of the Hon’ble Supreme Court in Civil Appeal No. 2366-67 of 2020 (Arising out of SLP (C) No. 5421-5422 of 2019) Bajaj Allianz General Insurance Co Ltd & Anr. V. the State of Madhya Pradesh wherein it has been held that "While construing a contract of insurance, it is not permissible for a court to substitute the terms of the contract. The court should always interpret the words used in a contract in a manner that will best express the intention of the parties". The Hon'ble Supreme Court of India in Export Credit Guarantee Corporation India Ltd. Vs. Garg Sons International in Civil Appeal No.1557 of 2004 decided on 17.01.2013 has held that "the insured cannot claim anything more than what is covered by the insurance policy. The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interest of the parties adversely. The clause of an insurance policy have to be read as they are consequently, the terms of the insurance policy, that fixed the responsibility of the insurance company must also be read strictly."  Reliance was also placed on the judgment of the Apex Court in Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. ((2010) 10 SCC 567]. The NCDRC in Reliance Life Insurance Co Ltd Vs Madhavacharya (Revision Petition No: 211 of 2009) has held that "Since the insurance between the insurer and the insured is a contract between the parties, the terms of the agreement including applicability of the provision and also its exclusion had to be strictly construed to determine the extent of the liability of the insurer." Therefore, the Opposite Party is under no liability to pay any amount to the Complainant. He sought to allow the Appeal, set aside the impugned order passed by the State Commission and dismiss the complaint filed by the complainant before the State Commission.

12.    In Appeal No. 03/2016, the OP-2 Bank contended that the State Commission gravely erred by not appreciating the material fact that there is no privy of contract between the OP-2 and the deceased Mr. Chander Mohan Thakur, as the DLA availed the Life Insurance Policy (Kotak Preferred Term Plan) from the Kotak Mahindra Insurance Limited-OP1 and 3 (Respondent No.2 herein), which is a separate entity and also premium for the same was paid to the said Insurance Company only.  Thus, the Impugned Order is liable to be set aside qua the OP2-Bank. 

13.    In his arguments, the learned Counsel for the Complainant has asserted that the order passed by the learned State Commission is appropriate and legal. There is no investigation or enquiry by the insurance company but still without any basis they have withheld the claim, on the ground that life insured committed suicide by jumping in front of the train and the aforementioned allegation and story concocted by the insurance company is not corroborated with the post mortem report as, if somebody jumps in front of the train, then his body will be smashed and crushed by the train, here he has been dragged to the railway line in an unconscious position and that is why his body has been amputated into two parts. So, the story concocted by the investigating officer cannot be the basis to requisite the case. When the insurance company failed to conduct the inquiry for a long period of 6 years and after 6 years on the basis of the report of the DSP, they have repudiated the claim, which is not permissible under law and there is no illegality in the judgment passed by the State Commission.  He further argued that the insurance company cannot take the advantage of the FIR investigation conducted later on as no independent investigation has been conducted by the insurance company which itself is sufficient to hold that they were negligent and inaction on their part caused lot of harassment to the complainant. There is no medical evidence or definite opinion on the file to prove that it is a case of suicide or homicide/culpable homicide/ murder. Whereas it is clear from the post mortem examination that it is a pure case of accident. He relied upon the judgment in the case of New India Assurance Co Ltd Vs Jaiwanti Bai Vishwakarma & Anr it was observed that "In any case, neither the opinion of the Panchas nor the opinion of the police officer could have established that the deceased had committed suicide. There is absolutely no expert evidence on record to prove that the wounds found on the dead body of the deceased could have come only in a case where suicide was committed either by coming in front of a moving train or by lying on a railway track. There is no medical opinion that such wounds could not have come in case a person crossing a railway track was hit by a moving train and his body was cut by the said train. Since the onus was upon the Insurance Company to prove that the deceased had committed suicide, it was for the said Company to produce satisfactory evidence of the alleged suicide. Since no such evidence has been produced, it would be difficult for us to accept the theory that the deceased had committed suicide."  He further relied upon SBI Life Insurance Co Ltd Vs Sudesh Khanduja & Anr it was observed that "All these arguments have left no impression upon us. It is an admitted fact that the investigating agency of OP made no efforts in this case. There is no report of investigation by the OP. The investigation of this case by insurance agency (OP) was done hit or miss. It clearly shows negligence, inaction and passivity on the part of OP. When they are alleging that this is a case of suicide, they should have been vigilant and should have produced the solid and unflappable evidence. From the report of the doctor, it is not clear whether the deceased took poison or not. Even if it is prima facie assumed that it may be a case of suicide, yet, it cannot be said definitely from the facts mentioned above, whether, it was a case of homicide, culpable homicide, murder, suicide or an accident. It is the OP and none else, who is to prove the factum of suicide. The contradictions about heart attack made by the complainants may not be the contradictions. It is the generalised term." Therefore, he sought to dismiss both the First Appeals.

14.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned counsels for both the parties.

15.    The main issue for determination is whether the Complainant is entitled for the claim under the policy with respect to the death of the DLA in the given circumstances. It is undisputed that the DLA, Chander Mohan Thakur, purchased the Kotak Preferred Term Plan insurance policy with a basic sum assured of Rs. 50 Lakh, with a policy term of 24 years after paying the first premium on 31.12.2012. In terms of Clause 6 of the policy, if the life insured commits suicide within one year of the policy issue or revival, the policy shall cease to exist, and all claims shall cease. It is also undisputed that the DLA died on 23.05.2013, and an FIR was lodged under Section 302 IPC at PS Railway Police, District Patiala, Punjab. The investigation into the circumstances under which the death occasioned was conducted by the State Crime Branch, Panchkula. The report submitted by the Deputy Superintendent of Police, State Crime Branch, Panchkula concluded that the DLA committed suicide by jumping before a train at about 08:50 PM on 23.05.2013 and that there was no evidence of murder. Therefore, the report filed by the statutory authority which investigation into the matter revealed the circumstances and cause of the death of the DLA in the case.

16.    Considering the report of the DSP, State Crime Branch, Panchkula which is based on detailed investigation and evidence of eyewitnesses to the incident and the absence of any evidence to the contrary, the only conclusion feasible is that the DLA had committed suicide. The policy was issued on 31.12.2012. In terms of Clause 6 of the policy, if the life insured commits suicide within one year of the policy issue or revival, the policy shall cease to exist and all claims shall cease. It is an established position that the DLA had committed suicide by jumping before a train at about 08:50 PM on 23.05.2013. Therefore, in terms of insurance contract between the parties, the insurer is not liable to pay any sum assured.

17.    In view of the forgoing discussion, as the death of the life assured had occurred by suicide within a few months of the issue of the policy, in terms of the terms and conditions of the policy, the insurer is not liable to pay any sum assured under the policy to the Complainant. Therefore, both the First Appeal Nos. 913 of 2015 and 3 of 2016 are allowed and the impugned order of the learned State Commission dated 13.08.2015 in Complaint No.16/2014 is set aside and the complaint filed before the State Commission is dismissed.

18.    There shall be no order as to costs. All pending Applications, if any, also stand disposed of.

19.    The Registry may refund the statutory amount deposited by the Appellants, if any due, along with interest accrued.