District Consumer Disputes Redressal Forum, Tarn Taran (Punjab)
Consumer Complaint No.: 10/2015
Date of Institution : 9.2.2015
Date of Decision: 29.07.2015
- Gurwant Kaur wd/o Swaran Singh s/o Mahinder Singh.
- Simranjit Singh s/o Swaran Singh aged about 17 years old.
- Jaskaranbir Singh s/o Swaran Singh aged about 16 years old
- Harshdeep Singh son of Swaran Singh aged about 12 years old, complainants No. 2, 3 & 4 through their mother, natural guardian and next friend i.e. complainant No. 1 and next friend i.e. complainant No. 1 and all the complainants are residents of V.P.O: Jhabal Kalan, Tehsil and District Tarn Taran.
…Complainants
Versus
- Branch Manager, Bajaj Allianz General Insurance Company Ltd., SCO-31, K.K. Towers, District Shopping Centre, Ranjit Avenue, Amritsar, 143001.
- Authorized Officer, Bajaj Allianz General Insurance Company Ltd., Second floor, Satnam Complex, BMC Chownk, G.T. Road Jalandhar.
- Authorized Officer, Bajaj Allianz General Insurance Company Ltd. Sarhali Road, Tarn Taran.
- Executive Head, Bajaj Allianz General Insurance Company Ltd. G.E. Plaza, Airport Road, Yarwada, Pune-411006.
- Axis Bank, Amritsar road, village Jhabal Kalan, Tehsil and District Tarn Taran.
- Axis Bank Limited, Corporate Office, Bombay Dyeing Mills Compound, Pandurang Budhkar Marg, Worli, Mumbai.
…Opposite Parties
Complaint Under Section 11, 12 & 13 of the Consumer Protection Act, 1986.
Present: Sh. M.P. Arora Advocate, counsel for complainant.
Sh. Rajpal Singh Advocate, counsel for Opposite Parties No. 1 to 4.
Sh. Sanjay Gupta Advocate counsel for Opposite parties No. 5 and 6.
Quorum: Sh. J.S.Khushdil, President.
Sh.R.D.Sharma, Member.
Smt.Jaswinder Kaur, Member
(Sh J S Khushdil, President)
- The complainants Gurwant Kaur and others filed a complaint under Section 11, 12 and 13 of the Consumer Protection Act 1986 (herein-after called as ‘the Act’) against Branch Manager, Bajaj Allianz General Insurance Company Ltd., SCO-31, K.K. Towers, District Shopping Centre, Ranjit Avenue, Amritsar, 143001 and others (herein-after called as ‘Opposite Parties No. 1 to 4- Insurance Company’) and Axis Bank, Amritsar road, village Jhabal Kalan, Tehsil and District Tarn Taran and another (herein-after called as ‘Opposite Parties No. 5 to 6- Bank) supported by various documents levelling allegations of deficiency of service on the part of the opposite parties.
2 As per the complaint, Smt. Gurwant Kaur complainant No. 1 is widow of the deceased Swaran Singh, whereas the complainant Nos. 2 to 4 are minor sons of deceased Swaran Singh. Bajaj Allianz General Insurance Company Ltd. opposite parties No 1 to 4 are dealing in the general insurance policies. It is pleaded that at the time of offering policies, the company & agents assured the family members of the customers that if any untoward incident happened, then the Insurance Company would give all the benefits and the sum assured at the door step of their home. The insurance company also used to give lucrative offers to common peoples just in order to secure their business. For that purpose, the insurance company presented ‘SAFE GUARD’ PERSONAL ACCIDENT INSURANCE POLICY’ in collaboration with Axis Bank-opposite parties No. 5 and 6. Swaran Singh (deceased) was customer of the opposite party No. 5-Bank as deceased was having bank account No. 911010061157264 with them. The insurance company’s officials and agents approached the complainant No. 1 and her husband and gave lucrative offers for purchasing the policy, to which the husband of complainant No. 1 got attracted. Swaran Singh purchased said policy ‘‘SAFE GUARD’ PERSONAL ACCIDENT INSURANCE POLICY’ No. OG-12-1210-6401-00003505 which was issued on 20.2.2012 with commencement date 29.11.2011. The policy was to expire on 28.11.2016. The insurance plan chosen was ‘Safe Guard’. The sum assured was of Rs. 5,00,000/- for the period of 5 years. The gross premium of Rs. 2,115/- was paid at the time of purchase of the policy through saving bank account of Swaran Singh (deceased) with Axis Bank, Jhabal on 29.11.2011. As per terms of policy, the company undertook to give the benefit, in case of accidental death, 100% of the sum insured + Children’s educational bonus (Children’s education bonus of Rs. 5,000/- for one children or Rs. 10,000/- maximum for 2 children below the age of 19 or 10% capital sum assured whichever is less). Unfortunately, Swaran Singh died on 29.12.2013 in a road accident. On 29.12.2013, Virsa Singh, Swaran Singh (deceased), Kulwinder Singh, Pardeep Sood, Jaswinder Singh alias Vicky residents of village Jhabal were going to village Cheema Khurd. Swaran Singh (deceased) was driving the motorcycle bearing No. PB46-F-5446 and Kulwinder Singh was the pillion rider. Virsa Singh was following Swaran Singh (deceased) on his motorcycle. At about 6:30 pm, when they reached near road of village Gandiwind at some distance behind from Gurudwara Baba Shaheeda, then a motorcycle No. PB38-C-8120 came and the driver of the said motorcycle was driving his motorcycle in a very rash and negligent manner and had struck with the motorcycle of Swaran Singh (deceased) and Kulwinder Singh, due to which Swaran Singh (deceased) and Kulwinder Singh fell down and Swaran Singh had received several injuries on his head and other body parts and he was admitted to Baba Buddha Charitable Hospital, where the doctors declared him dead. F.I.R. No. 87 dated 30.12.2013 under Section 304A/279/427/337/338 IPC was registered on the statement of Virsa Singh son of Mahinder Singh resident of village Jhabal at Police Station Sarai Amanat Khan against Gopal Singh i.e. the driver of the offending vehicle. The post mortem of Swaran Singh was conduced at Civil Hospital Tarn Taran vide PMR bearing No. CHTT/RK/239/2013 dated 30.12.2013 according to which the cause of the death was head injury leading to bleeding to a vital organ i.e. brain. It is averred, as Swaran Singh died in road accident and widow and children of Swaran Singh (deceased) are entitled to the insured sum as well as other benefits vide policy in question. The complainant No. 1 and near by person namely Gurdeep Singh son of Balbir Singh resident of village Jhabal Kalan had given information to the insurance company’s call centre on the company’s official telephone number regarding the death of Swaran Singh for the purpose of claim. Thereafter, officials of the company had demanded some documents from the complainant No. 1 and the complainant No. 1 had given the required information regarding the death of Swaran Singh i.e. death certificate, post mortem report, F.I.R and other forms and information. The officials of the insurance company kept mum for some period since the death of Swaran Singh (deceased) but later on in order to save their money and to decline the claim of the complainants, they started making lame excuses and demanded unnecessary documents. The complainant No. 1 is innocent widow and not fully literate lady. It is pleaded that husband of the complainant No. 1 was a hawker and used to sell clothes on rehri & retail shop and had paid his hard earned money for purchasing the policy for safeguarding the interest of his family. It was alleged that conduct of the company was un-businesslike and it is deficient in providing the service. It was alleged that now the insurance company has repudiated the claim of the complainant on the frivolous ground. The complainants made several requests to accept the claim of the complainants but the officials of the company paid no heed. The complainant No. 1 is assignee of the policy and the complainant Nos. 2 to 4 are school going minor children, the complainant No. 2 is studying in class 10th standard at Government High School, village Jhabal Kalan, the complainant No. 3 is studying in class 9th standard at Government High School, village Jhabal Kalan and the complainant No. 4 is studying in class 5th standard at Government Elementary school Village Jhabal Kalan. The complainants, therefore, prayed to this Forum to accept their complaint and request as follows:-
(i) To direct the opposite parties to pay total sum insured i.e. Rs. 5,00,000/- with interest up to date from the date of death of Swaran Singh (deceased).
(ii) To pay bonus amount of education of Rs. 10,000/- up to the age of 19 years to the complainants No. 2 to 4.
- To pay Rs. 2,00,000/- as compensation for causing mental and physical harassment to the complainants.
- To pay Rs. 22,000/- as costs of litigation expenses and to pay pendent elite interest @ 12% per annum from the date of filing of the complaint.
3 Notice of this complaint was issued to the opposite parties. The opposite parties No. 1 to 4 appeared through their counsel and filed written version wherein various preliminary objections have been taken inter alia that the complainants have concealed the material facts from this Forum and have not come to the Forum with clean hands, therefore, they are not entitled for any claim. In this case, the complainants did not provide the documents i.e. attested copy of viscera chemical analysis report; that the complainants are estopped by their act and conduct from filing the present complaint; that the complainants have no locus standi to file the present complaint; that it was the complainants who were to file certain documents for processing the case and claim was decided as per requisite terms. On Merits, it was pleaded that the complainants have not filed documents showing that they are legal heirs of the deceased. It was admitted that the policy was issued to the deceased being the Axis Bank customer and being account holder in the Axis Bank. The benefits can only be given to a person who is entitled for the same under the terms and conditions of the policy. On receiving the intimation of death of Swaran Singh, the opposite parties No. 1 to 4 demanded the viscera chemical analysis report which was sent by the doctor at the time of conducting the post mortem but the said report has not been provided by the complainants. It is alleged that a false F.I.R. has been lodged as the complainants have not provided viscera chemical report to ascertain the cause of death, therefore, the complainants are not entitled for any claim. It was pleaded that the claim has been repudiated on the valid ground. The other allegations have been denied by the opposite parties No. 1 to 4 and finally prayed for dismissal of the complaint.
4 The opposite parties No. 5 and 6 also filed a separate written version wherein various preliminary objections have been taken on the ground that the role of the bank was only as a facilitator/ referral agent and actual insurance was issued by the insurance company i.e. opposite parties No. 1 to 4. There exists no privity of contract between the complainant and the bank-opposite parties No. 5 and 6 and qua the claim of insurance; that an agent can neither sue nor be sued except under the special circumstances. On merits, it was admitted that Bajaj Allianz General Insurance in collaboration with Axis Bank provides the personal accident insurance policy for the customers of Axis Bank and it is voluntarily and at the sole discretion of the customer. The opposite parties No. 5 and 6 never approached the complainants with such offers. It was admitted that Swaran Singh was holding bank account Number 911010061157264 with the Axis Bank. The opposite parties No. 5 and 6 have nothing to do with the alleged insurance policy, if any. The other allegations have been denied by the opposite parties No. 5 and 6 and finally prayed for dismissal of the complaint.
5 The complainants in order to substantiate their claim tendered in to evidence duly sworn affidavit of Gurwant Kaur Ex. C-1 alongwith following documents:-
Ex. C-2 Self attested copy of pass book of Swaran Singh.
Ex. C.3 Self attested copy of Generic Contingency Policy schedule.
Ex. C.4 Self attested copy of Identity card of Swaran Singh issued by Election Commission of India.
Ex. C.5 Self attested copy of death certificate of Swaran Singh.
Ex. C.6 Self attested copy of Post Mortem report of Swaran Singh.
Ex. C.7 Self attested copy of Adhar Card of Gurwant Kaur.
Ex. C.8 Self attested copy of education certificate of Simranjit Singh.
Ex. C.9 Self attested copy of school certificate of Jaskaranbir Singh.
Ex. C.10 Self attested copy of School certificate of Harshdeep Singh.
Ex. C.11 Self attested copy of F.I.R. No. 87 dated 30.12.2013.
Ex. C.12 Self attested copy of news paper cutting
Ex. C.13 Self attested copy of Police report dated 19.8.2014
Ex. C.14 Self attested copy of affidavit of Gurwant Kaur
Ex. C.15 Certified copy of award dated 10.3.2015 in case titled Gurwant Kaur etc. Vs Gopal Singh etc. by the court of Sh. Baljinder Singh, Motor Accident Claims Tribunal, Tarn Taran.
Mark A Photostat copy of Registration Certificate of motorcycle No. PB46-F-5446 in the name of Sukhchain Singh.
Mark B Photostat copy of registration certificate of motorcycle No. PB38-C-8120 in the name of Nishan Singh
and closed the evidence.
6 On the other hand, to rebut the evidence of the complainant, Opposite parties No. 1 to 4 have tendered in to evidence affidavit of Navneet Singh Ex. OPs1 to 4/1 alongwith following document:-
Ex. OPs 1 to 4/2 Self attested copy of letter dated 15.2.2014
Ex. OPs 1 to 4/3 Self attested copy of letter dated 3.3.2014
Ex. OPs 1 to 4/4 Self attested copy of letter dated 18.3.2014
Ex. OPs 1 to 4/5 Self attested copy of Policy
Ex. OPs 1 to 4/6 Self attested copy of Generic Contingency
policy schedule alongwith terms and conditions
and closed the evidence.
7 The opposite parties No. 5 and 6 also tendered in to evidence affidavit of Nikhil Sharma Branch Manager Axis Bank Jhabal Kalan Ex. OPs 5, 6/1 and closed the evidence.
8 We have heard ld counsel for the complainants as well as Opposite parties and also gone through the written arguments filed by the complainant and opposite parties No. 1 to 4 and also perused the evidence produced on record by the parties with the assistance of ld. counsel for the parties. However, written arguments have not been filed by the opposite parties No. 5 and 5 despite availing sufficient opportunities.
9 Sh. M.P. Arora Advocate ld. counsel for the complainant has first of all referred to the pleadings and then to the evidence. It was argued that Swaran Singh (now deceased) was having bank account No. 911010061157264 with Axis Bank. He got the policy from Bajaj Allianz General Insurance Company Ltd through Axis Bank being account holder. The policy in question called as ‘‘SAFE GUARD’ PERSONAL ACCIDENT INSURANCE POLICY’ bearing No. OG-12-1210-6401-00003505 and was issued on 20.2.2012 but effective from 29.11.2011. It was to expire on 28.11.2016. The policy was valid for 5 years. The premium of Rs. 2,115/- was paid out of the above said account maintained in the Axis Bank on 29.11.2011. Ld. counsel for the complainant referred to copy of pass book (Ex. C.2) where the payment of premium has been shown. Bajaj Allianz Insurance Company had assured to pay 100% of sum insured plus Children’s educational bonus as per its terms and conditions in the event of death of policy holder. Unfortunately, Swaran Singh died on 29.12.2013 in a road side accident. It was submitted that the claim under Motor Accident Claim Tribunal was filed which was allowed vide order dated 10.3.2015 by the ld. Motor Accident Claim Tribunal vide award Ex. C.15. It was submitted that Swaran Singh deceased was not found negligent in driving by the Motor Accident Claim Tribunal. It was urged that on 29.12.2013 Swaran Singh was driving motorcycle bearing No. PB46-F-5446 and one Kulwinder Singh was pillion rider. One Gopal Singh was coming on motorcycle No. PB38-C-8120 in a very rash and negligent manner which struck with the motorcycle of Swaran Singh (deceased) and Kulwinder Singh, due to which Swaran Singh(deceased) and Kulwinder Singh fell down and Swaran Singh(deceased) succumbed to his injuries. F.I.R. No. 87 dated 30.12.2013 under Section 304A/279/427/337/338 IPC(Ex.C-11) was registered against Gopal Singh. Ld. counsel for complainants further submitted that post mortem of body of Swaran Singh deceased was conducted and reference was also given to the Post Mortem Report Ex. C.6. It was submitted that all the documents were handed over to the Police by the concerned doctor who conducted the post mortem of Swaran Singh deceased. The reference was made to the Post Mortem Report Ex. C.6 where it is so mentioned. It was submitted that viscera was not sent by the police for chemical examination as per document Ex. C.13. It was urged that the complainants lodged claim with the insurance company but the said claim was rejected on the flimsy ground without any reason. It was submitted that no terms and conditions were supplied to the deceased Swaran Singh, the reference was made to policy Ex. C.3 which is without terms and conditions. It was submitted that now during the evidence, the opposite parties No. 1 to 4 have placed on record detailed terms and conditions of the policy (Ex. OPs 1 to 4/6). The opposite parties have taken this plea that the insurance company would not make payment of claim in case the policy holder was under the influence of liquor or drugs. It was submitted that at no stage any condition was explained to the deceased Swaran Singh or to the complainants, therefore, that condition is not binding upon them. It was submitted that such a plea was taken before the Motor Accident Claim Tribunal but that was not accepted and Swaran Singh (deceased) was not found negligent in driving the motorcycle at the relevant date of occurrence. Ld. counsel for the complainants further argued that it was the opposite parties No. 1 to 4-insurance company who had taken this plea that Swaran Singh (deceased) was under the influence of liquor at the time of occurrence of accident, then the onus was upon the opposite parties that Swaran Singh was under the influence of liquor or beyond his control. It was submitted that taking liquor or being under the influence of liquor are two different things. Even, for arguments sake, if Swaran Singh had consumed liquor, it does not mean that he was under the influence of liquor. The prescribed limit of liquor has been provided under law. It was submitted that under Section 185 of the Motor Vehicle Act, if permissible limit exceeds 30 mg out of 100 ml of blood then a person may be considered under the influence of liquor. In this case, there is nothing such on the record. The insurance company was at liberty to appoint any investigator or surveyor to prove this fact but it has not been done so. Now, the opposite parties are trying to get information from the complainants to supply such documents which are not in their possession. Whatsoever documents and information were with the complainants, the same are already given to the opposite parties. It was contended that at the time of issuance of policy by the opposite parties they assured to the account holder/ policy holder that in the event of death of policy holder, the entire amount would be paid at the door step of the legal heirs of the deceased. It was urged that at the time of getting the business their face was different and at the time of discharging their liability they have different face. Ld counsel for the complainant has referred to the documents placed on record, Ex. C.4 is driving license of deceased Swaran Singh, Ex. C.5 is death certificate of Swaran Singh, Ex. C.7 is the copy of Adhar Card showing Gurwant Kaur as wife of Swaran Singh, whereas Ex. C.8 is certificate of Simranjit Singh showing that he is son of Swaran Singh. Ex. C.9 is school certificate of Jaskaranbir Singh showing him son of Swaran Singh, Ex. C.10 is certificate of Harshdeep Singh showing him son of Swaran Singh. Reference was also made to Ex. C.11 i.e. copy of F.I.R, copy of news item Ex. C.12 also copy of affidavit Ex. C.14 showing that Swaran Singh died in road side accident. Ld. counsel for complainants urged that the repudiation of the claim of the complainants is totally unjustified and illegal. It is submitted that the opposite parties have neither established that deceased was under influence of liquor nor has established that he consumed liquor exceeding to the permissible limit so as to term him under the influence of liquor nor proved the nexus of consumption of liquor with death. Evidence on record established that Swaran Singh died in road side accident. Even the police has not sent the viscera for chemical examination as is apparent from the police report (Ex. C.13). It is also submitted that rejection of genuine claim of the complainant is illegal and also amounts to deficiency in service on the part of the opposite parties as well as unfair trade practice. To strengthen his contention ld. counsel for complainants placed reliance on judicial pronouncements
(i) United India Insurance Co. Ltd. & Anr Vs S.M.S. Tele communications & Anr. 2009(4) CLT 145
(ii) The National Insurance Company Ltd. & Others Vs Jammaluddin Mondal (N.C), 2014(3) CLT 619 by Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U.T. Chandigarh,
(iii) Life Insurance Corporation of India & Anr Vs Ranjit Kaur (N.C), 2011(4) CLT 388
(iv) M/s Oriental Insurance Co. Ltd. Vs Jomy Pappally 2014(2) CLT 608 by Hon’ble Kerla State Consumer Disputes Redressal Commission Thruvananthapuram,
(v) The United India Insurance Co. Ltd. Vs Sheela & Others (NC), 2014(3) CLT 106
(vi) M Raja Gangu Vs The Branch Manager, Life Insurance Corporation of India (N.C), 2015(2) CLT 99
(vii) Mohammad Ejaj Vs United India Insurance Company Limited & others 2014(4) CLT 161 by Haryana State Consumer Disputes Redressal Commission Panchkula.
It was prayed to accept the claim and to award the relief as claim.
10 Sh. Rajpal Singh Advocate ld. counsel for the opposite parties No. 1 to 4 has opposed the submissions of the ld. counsel for the complainants and has urged that repudiation of claim of the complainants has been done lawfully as deceased/ policy holder has violated the terms and conditions of the policy. Ld. counsel for the opposite parties No. 1 to 4 has referred to the policy Ex. OPs 1 to 4/6 wherein the insurance company was not held liable where policy holder was found under the influence of liquor or drug. Ld. counsel for the opposite parties No. 1 to 4 has submitted that in this case, Swaran Singh (deceased) was under the influence of liquor and reference was made to the post mortem report Ex. C.6 wherein it is so mentioned. It was submitted that the opposite parties No. 1 to 4 had demanded viscera chemical analysis report from the complainants, but the complainants have not supplied the same to the opposite parties No. 1 to 4, therefore, the claim was found not justified. It was argued that it was the post mortem report in which alcohol has been found in the body of the deceased and blood sample has been taken for the measurement of level of alcohol in the body. The complainant did not provide the final report of post mortem to finalise the claim, therefore, without ascertaining the case and reason of death the claim could not be passed. It was the duty of the complainants to supply the said documents as the complainants have approached this Forum to get relief covered under the policy. Ld. counsel for the opposite parties No.1 to 4 did not deny the issuance of the policy by the opposite parties No. 1 to 4 and have also not denied this fact that deceased Swaran Singh was not the account holder of Axis Bank. He has also submitted that in claim before Motor Accident Claim Tribunal, the opposite parties No. 1 to 4 were not party, therefore any award passed by the Motor Accident Claim Tribunal is not binding upon the opposite parties No. 1 to 4. It was submitted that the case of the opposite parties No. 1 to 4 be viewed independently. It is argued that the case law relied upon by the complainants is not relevant to the facts of the present case. The policy in question relates to personal accident, therefore, insured was bound to follow the terms and conditions of the policy. It was submitted that the repudiation is justified and complainants have no cause of action and locus standi or any entitlement for the claim and prayed for dismissal of the complaint.
11 Sh. Sanjay Gupta Advocate ld. counsel for the opposite parties No. 5 and 6 has argued that the bank is only facilitator and referral agent. There exists no privity of contract between the complainants and the opposite parties No. 5 and 6. It was also submitted that the policy is voluntarily and at the sole discretion of the customer. It was admitted that Swaran Singh was holding bank account Number 911010061157264 with the Axis Bank. It was also submitted that the opposite parties No. 5 and 6 have nothing to do with the insurance policy, if any and prayed for dismissal of the complaint.
12 We have taken in to consideration the contentions and rival contentions of both the parties in the light of record.
13 Before proceedings further in to the matter it would be just and appropriate to discus some case law on the subject.
14 In case titled United India Co. Ltd. & Anr Vs S.M.S. Tele Communications & Anr 2009(4) CLT 145, (NC) the Hon’ble National Commission held that being aware of the existence of the policy is one thing and being aware of the contents and meaning of clauses of the policy is another. In this case, M/s S.M.S. Communication is a proprietary concern which provided telephone connections through EPABX system. SMS obtained loan from State Bank of Travancore. The bank took an insurance policy from petitioner and debited the premium amount to the account of the complainant, SMS. On 22.5.2006, there was short circuit due to which EPABX system was totally damaged beyond use. SMS made alternate arrangements with a view to not inconvenience the customers. SMS also informed the bank, which in turn wrote a letter to the insurance company. The claim lodged by SMS was repudiated by the insurance company stating that the claim falls under head (A) general exclusion clause No. 7 under Standard Fire and Special Perils Policy. SMS filed complaint before the District Forum. The bank further requested the insurance company to settle the claim. The District Forum accepted the claim. Hon’ble State Commission held that repudiation is unjust and appeal filed by the insurance company was dismissed by the Hon’ble State Commission. Hon’ble National Commission held that being aware of existence of the policy is one thing and being aware of the contents and meaning of the clauses of the policy is another. It is also held that regulation 3 of the Insurance Regulatory and Development Authority (IRDA) requires to be followed by the insurance companies so that the terms of the insurance policy do not operate harshly against the insured and in favour of the insurer. It is further held in Para No. 15 of this judicial pronouncement.
In our view, the unexplained or unnoticed exclusion clauses would not be binding to the insured. The reason being the Regulations are of mandatory in nature so as to protect the consumers’ interests.
The Hon’ble National Commission held as under:-
- ‘Exclusion Clauses’ are required to be ignored if the Insurance Company or its Agent or intermediary does not adhere to the mandatory requirement of explaining the ‘Exclusion Clauses’ before issuance of insurance cover.
- The procedure prescribed under Regulation 3d, is required to be followed. In case the said procedure is not followed apart from aforesaid consequences, the Regulatory Authority can take action under Regulation 11(4) against the Insurance Company.
- The Regulations are based on settled law declared from time to time by the Courts (Re: Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd. , 2000(2) SCC 734)
- Intermediary, the HCL, in the present case, has issued the insurance cover as an agent to the Insurance Company. Therefore, the Insurance Company is bound to reimburse the complainant in case of theft of the mobile handset. Free Insurance cover is a method adopted as a part of aggressive marketing.
15 In case titled The National Insurance Company Ltd. & Others Vs Jammaluddin Mondal 2014(3) CLT 619 it was held by Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U.T. Chandigarh that it is the duty of insurance company to disclose all the facts and circumstances, relating to the insurance cover, to the life assured who purchased the policy. It was also required to appraise the life assured of the benefits of insurance and the exclusion clauses, contained therein and to supply the Insurance Policy and the terms and conditions thereof, to the life assured, so as to enable him to go through the same and understand the clauses contained therein. The mere fact that the deceased affixed his signature on a printed declaration that he had read the salient features of the policy mentioned in the Prospectus not sufficient. Exclusion clause of the Policy could not be made applicable in this case. In this case Jammaluddin Mondal, life assured took a mediclaim policy for himself and his family in the year 2012 and the sum insured was Rs. 1,00,000/- and it was stated that the said policy was valid for the period from 22.5.2012 to 21.5.2013 and the card was issued by opposite party No. 2. The life assured suddenly fell ill and had severe chest pain on 10.12.2012. He was taken to PGI on 10.12.2012 where he remained under treatment till 11.12.2012. During treatment, angiography and other treatments were given to him and Rs. 1,22,494.92 Paise was spent on treatment but unfortunately he expired on 11.12.2012 due to cardiogenic shock. The claim was lodged by the wife of the life assured on 27.12.2012. At the time of filling the proposal Forum the deceased was hale and hearty. It was further asserted that the opposite party did not get medically examined from their panel doctor but issued the policy after mentioning in the relevant column itself regarding pre existing disease as NA. It was alleged that terms and conditions were never supplied to the life assured which amounted to deficiency in service and also indulges in to unfair trade practice. The insurance company in that case alleged that complainant did not submit all required papers regarding pre existing disease of her husband and according to insurance company the life assured was not hale and hearty. The claim was repudiated as the life assured was having pre existing disease like Chronic Hypertension, Type-II Diabetes Mellitus, Coronary Artery Disease, Acute Infertior Wall Myocardial Inferaction. The Hon’ble National Commission observed that Jammaluddin Mondal was not aware of the fact that he was suffering from Hypertension and chronic artery disease on the date of filling up the proposal form, therefore, it could not be said that he concealed the facts of existence of the aforesaid disease from the opposite party. It was obligatory on the part of the insurance company to disclose all facts and circumstances relating to the insurance cover to the life assured who purchased the policy and also to apprise the life assured of the benefits of insurance and the exclusion clauses, contained therein. The Hon’ble National Commission in this authority has also taken note of another judicial pronouncement United India Insurance Co. Ltd. & Anr Vs S.M.S. Tele Communications & Anr III (2009) CPJ 246 (NC) wherein it was observed that being aware of the existence of the policy, is one thing, and being aware of the contents and meaning of the clauses of the policy, is another. Since there is no evidence to the effect that the terms and conditions of the policy were ever made known to Mr. Jammaluddin Mondal (since deceased) and other family members, the claim on the ground that the deceased was pre existing and repudiation of the claim under Exclusion Clause 4.1 of the terms and conditions of the policy was illegal. And it was held that by repudiating the genuine claim of the respondent/ complainant illegally and arbitrarily, the appellants/ opposite parties were deficient in rendering service.
16 In case titled Life Insurance Corporation of India & Anr Vs Ranjit Kaur (N.C) 2011(4) CLT 388, the Hon’ble National Commission deals with the double accident benefit Policy. The claim was repudiated by the insurance company merely on the ground that the deceased was under the influence of liquor at the time of accident. It was held that mere presence of alcohol even above the usually prescribed limit is not a conclusive proof of intoxication. To apply exclusion clause nexus between cause of death and consumption of liquor is to be proved. The Hon’ble National Commission has also took note of the pronouncement of Hon’ble Apex Court M/s Modern Insulators Ltd. Vs The Oriental Insurance Company Ltd. 2001(1) Apex Court Journal 398(SC) and it is held that if the insurance company wants to take the benefit of exclusion clause in order to make it a case of “No Claim” in the guise of the said defence, it is enjoined on the opposite party to prove that such a clause was notified and duly communicated to the insured. It is not the duty of the insured to call for these terms and conditions. Thus, it was held that repudiation of double accident benefit was not justified.
17 In case titled M/s Oriental Insurance Co. Ltd. Vs Jomy Pappally 2014(2) CLT 608 it was held by Hon’ble Kerla State Consumer Disputes Redressal Commission Thruvananthapuram, repudiation of claim was not justified because no urine test or blood test was conducted to show that complainant had used alcohol at the time of the accident.
18 In case titled The United India Insurance Co. Ltd. Vs Sheela & Others (NC), 2014(3) CLT 106 the Hon’ble National Commission held that if there is nexus between the death caused by drowning and consumption of liquor and it was not proved that the deceased was under the influence of liquor at the time of the accident. Report of chemical examiner was not considered reliable.
19 In case titled M Raja Gangu Vs The Branch Manager, Life Insurance Corporation of India (N.C) 2015(2) CLT 99, the Hon’ble National Commission held the repudiation of claim by insurance company being illegal. It was held that a person cannot be said to be intoxicated unless alcohol level exceeds the prescribed limit which can only be confirmed through Blood Alcohol Concentration (BAC). It was further held that as per medical test, the alcohol concentration up to 50 mg per 100 ml of blood is tolerable and such person will not show any signs of intoxication. In Para No. 10 it was observed as under:-
Intoxication is perceived as a state of mind in which a person loses self control and his ability to judge. As per Sections 185 and 202 of the Motor Vehicles Act, it would be considered intoxicated only if the person is tested and found to have much than 30 mg of alcohol in his blood, per 100 ml. In the present case, except for a mere noting in the Final Opinion Report and the FSL report, no test had been done to ascertain whether Blood alcohol concentration (BAC) had exceeded the legally stipulated limit. The mere smell of alcohol or presence of ethyle alcohol in the tissue samples cannot lead to an inference that a person is incapable of taking care of himself.
The claim of the claimant was therefore accepted.
20 In case titled Mohammad Ejaj Vs United India Insurance Company Limited & others 2014(4) CLT 161 it has been held by Haryana State Consumer Disputes Redressal Commission Panchkula that IRDA have given direction to the Insurance Companies not to reject genuine claims simply because of late registration of F.I.R and late intimation to the Insurance company because IRDA is the controlling authority of all insurance companies and being a statutory body is competent to frame guidelines and issue instructions to insurance companies which are binding upon them. In this case, motorcycle of Mohammad Ejaj was insured with United India Insurance Company Ltd. from April 26th, 2011 to April 26th , 2012. The said motorcycle was got stolen on September 7th, 2011 and F.I.R. was lodged on September 22nd , 2011. The Hon’ble State Commission held that delay in lodging F.I.R. as well as delay in intimating the insurance company is insignificant in view of the directions of IRDA.
21 In the instant case it is an admitted fact that Swaran Singh was holding bank account No. 911010061157264 with the Axis Bank and the policy called SAFE GUARD PERSONAL ACCIDENT INSURANCE POLICY issued on 20.2.2012 effective from 29.11.2011 and to expire on 28.11.2016. There is no dispute regarding this fact. The policy was for 5 year and for 5 lacs. It is also evident that a sum of Rs. 2,115/- were paid by the deceased out of his bank account on 29.11.2011 as is apparent from the copy of bank statement Ex C.2. It is also evident on the file that the insurance policy Ex. C.3 placed on record is without terms and conditions. It is the insurance company which has later on during the course of evidence placed on record the detail terms and conditions of the policy vide Ex. OPs 1 to 4/6. There is no evidence on the file that any terms and conditions were ever explained to the deceased Swaran Singh. As per settled law holding of policy is different and knowing about the contents and terms and conditions is different. Swaran Singh died in road side accident. Motor Accident Claim Tribunal awarded the claim to the complainants. In that case also insurance company of the offending vehicle took the plea that deceased was under the influence of intoxication/ liquor and that plea was not accepted by ld. Tribunal and it was held that deceased was not driving the motorcycle in negligent manner. No doubt, the present insurance company was not the party in that litigation but the order of Motor Accident Claim Tribunal can be taken in to consideration being relevant in evidence. In the post mortem report, the presence of alcohol has been mentioned. Various documents were handed over to the police including blood sample for alcohol level measurement. Viscera was not sent by the police for examination regarding the presence of alcohol in the blood. As per settled law according to medical test 50 mg in 100 ml blood is tolerable and as per Section 185 of Motor Vehicle Act 30 mg out of 100 ml blood is permissible limit. In this case, there is no evidence on the file that whether deceased has taken liquor, if so, exceeding permissible limit which could make him in sensible to drive the motor vehicle. The opposite party was at liberty to get the fact investigated through its own agency by appointing surveyor or investigator and get the help of the police but this has not been done by the insurance company. Now, this plea that deceased has taken alcohol which was the cause of his death is insignificant.
22 We have also gone through the latest judicial pronouncement 2015(July) 104 (NC) titled M. Sujatha Vs Bajaj Allianz General Insurance Co. Ltd. Sri Madhu Reddy (now deceased) obtained personal Accident Policy from Bajaj Allianz Insurance Co. Ltd., Pune, Branch (Maharasthtra) valid from 25.1.2010 till 17.1.2015 for a sum of Rs. 10,00,000/-. His wife Sujata was his nominee. During the subsistence of the said policy Madhu Reddy died in a motor vehicle accident on 21.3.2010. The nominee filed a claim before the opposite party but the opposite party repudiated the claim as the policy holder was under the influence of alcohol while driving the car at the time of accident. Smt. Sujata wife of deceased lodged the complaint before the District Forum which directed the opposite party to deposit Rs. 10,00,000/- with interest @ 9% per annum from the date of repudiation i.e. from 7.7.2010. The opposite party has been further directed to pay Rs. 20,000 as compensation for deficiency of service and negligence and Rs. 2,000/- as costs. Against the order of District Forum, appeal was preferred in the Hon’ble State Commission and the Hon’ble State Commission dismissed the appeal. The Hon’ble National Commission gave its categorically finding in Para No. 8 and 9 as follows:-
8 In our view, it was not a conclusive report from the PSL, it leads us nowhere. There was no mention of any alcohol concentration, by which we can decide whether the person was intoxicated or not ? We have perused several literature and medical tests in Medical Jurisprudence and Toxicology, which clearly define about the effects of different concentration of alcohol. It is pertinent to note that as per medical test, the alcohol concentration up to 50 mg per 100 ml of blood is tolerable; such person will not show any signs of intoxication.
9 Intoxication is perceived as a state of mind in which a person loses self control and his ability to judge. As per Section 185 and 202, of the Motor Vehicles Act, it would be considered intoxicated only if the person is tested and found to have more than 30 mg of alcohol in his blood, per 100 ml. In the present case, except for a mere noting in the Final opinion Reprot and the FSL, report, no test had been done to ascertain whether Blood Alcohol Concentration (BAC) had exceeded the legally stipulated limit. The mere smell of alcohol or presence of ethyl alcohol in the tissue samples cannot lead to an inference that a person is incapable of taking care of himself.
The Hon’ble Commission further held that even the post-mortem report stating the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed. It is further held in Para No. 11 as under:-
11 It should be borne in mind that, a person cannot be said to be intoxicated unless alcohol level exceeds the prescribed limit which can only be confirmed through Blood Alcohol Concentration (BAC) is most commonly used as a metric of alcohol intoxication for legal or medical purposes. Therefore, the State Commission’s observations appear to be unscientific one.
23. It was the insurance company which has taken specific plea that the deceased Swaran Singh was driving the motor cycle under the influence of liquor, therefore the onus was on the insurance company to prove that fact. The Insurance Company has not discharged the onus by leading or collecting evidence to that effect. So, the insurance company has failed to prove the nexus between consumption of liquor, if any or cause of death of Swaran Singh. The opposite party has repudiated the claim on this basis which appears unreasonable, unjustified and illegal. It is important to add here that there is no evidence that terms and conditions were ever explained to the deceased or the same were understand by him.
24 Keeping in view the aforesaid facts and settled law mentioned above, we are of the view that repudiation of claim of the complainants is totally illegal and unjustified and without proper reasoning. It is worth while to add here that from the facts and circumstances, it appears that opposite parties were supplementing the business of each other. Unfortunately, their face at the time of upliftment of the business is other and at the time of discharge of liability is other which is totally unwarranted and amounts to deficiency in services on their part.
25. Therefore, we accept this complaint and the Opposite Parties No.1 to 4 are directed:-
i) To pay Rs.5 lacs (five lacs) i.e. sum insured to the complainants alongwith interest @ 9% per annum from the date of repudiation of the claim till the date of this order.
ii) To provide the education bonus to the children of deceased Swaran Singh as per the terms and conditions of the policy.
iii) To pay a sum of Rs. 20,000/- (Rs.twenty thousands only) being consolidated amount of compensation which includes counsel fee and litigation expenses.
26. The Opposite Parties No.1 to 4 are directed to comply with this order within 60 days from the date of receipt of copy of this order, failing which the Opposite Parties No.1 to 4 will pay interest @ 6% per annum on the principle amount of Rs. 5 lacs to the complainants from the date of this order till its realization. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Pronounced in open Forum.
Dated: 29-07-2015.
(J.S.Khushdil) President
(Jaswinder Kaur) (R.D.Sharma)
Member Member
