Date of Filing: 17.11.2017 Date of Disposal: 05.04.2022.
Complainant :Halima Bibi @ Halima Bibi Sekh, W/O Lt. Kajal Sk.,Vill. Koria
Baikunthapur-I, P.O. Baikunthapur, P.S. Burdwan, Dist. Purba
Bardhaman. Pin No. 713155.
-VERSUS -
Opposite Party :1.Bajaj Allianz General Insurance Company Ltd., having its branch office
at M.V. Apartment, 3rd Floor, 36, G.T. Road, Above IDBI Bank,
Parbirhata, P.O. Sripally, P.S. Burdwan, Dist. Purba Bardhaman.
Pin No. 713103 represented by its Branch Manager.
2. Bajaj Allianz General Insurance Company Ltd. having its Regional Office
at 3rd Floor, Eco Space, Plot No. II/F/II (old No. AA-II/BLK-2, IT),
New Town, Rajarhat, Kolkata, Pin -7000156 represented by its Regional
Manager.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Shri Sailaranjan Das - Hon’ble Member.
Appeared for the Complainant :Mr. Debdas Rudra-Ld. Advocate.
Mrs. Rumania Bagchi Ghosh –Ld. Advocate.
Appeared for the Opposite Party : Sri Soumalya Ganguli, Ld. Advocate.
FINAL ORDER
On 17.11.2017 the complainant namely Halima Bibi @ Halima Bibi Sekh lodged a complaint u/S 12 of the Consumer Protection Act, 1986 against the OP No. 1 Bajaj Allianz General Insurance Company Ltd., represented by its Branch Manager, Purba Bardhaman and OP No. 2 Bajaj Allianz General Insurance Company Ltd. represented by its Regional Manager, Kolkata.
The case of the complainant, in brief, is that the husband of the complainant namely Mr. Kajal Sk insured his life under Personal Accidental Policy (Sankat Mohan, Plan-I) bearing No. OG-15-2420-6402-00000339 issued by the OP No. 1 for the period commencing from 30.03.2015 to 28.03.2016. The husband of the complainant, during his life time, has paid the premium against the said policy. The complainant, being the wife of Mr. Kajal Sk., was the nominee of the said
Policy. That the husband of the complainant during his working period fell down from a roof of a building under construction on 29.01.2016 at about 11.00 a.m. and he was seriously injured all over his body and immediately he was admitted to Sharanya Multi Speciality Hospital, Bamchandaipur, Jotram, Burdwan . As the condition of the patient was so serious he was referred to Kolkata for better management and he was admitted to Bangur Institute of Neurosciences Hospital, Kolkata, on 30.01.2016. After certain tests , the said hospital released the patient due to non-availability of bed and as such he was again admitted at Burdwan Medical College & Hospital on 03.02.2016 and he was again referred to any higher center for better management from the said Medical College on 03.02.2017 and ultimately, the patient was again treated at Emergency of Bangur Institute of Neurosciences Hospital on 04.02.2017 but the doctor prescribed some medicines for the patient and put a seal and signature thereby endorsing “Regret, No Bed Vacant. Try other State Hospitals/Medical Colleges” and referred the patient to N.R.S. Medical College & Hospital, Sealdah. So, the patient was treated at N.R. S Medical College & Hospital. The patient was undergone operation and after one moth he was released from the said hospital and after prescribing some medicines he came back home. Thereafter, the complainant intimated the OPs about the body injury of the insured Kajal Sk and as per the instruction of the OP No.1, she lodged claim, after duly filled in the Forms along with all the required documents, observing all the formalities on 04.03.2016 which was received by the OPs, putting their seal and signature. But unfortunately, after fighting with death, finally the husband of the complainant surrendered his life before death and he died on 27.05.2016 at 5.00 a.m. at his residence due to cardio-respiratory failure in a post- operative case of Spinal Cord Compression due to fall from the roof at the time working. The death certificate issued by Dr. T.K. Biswas as well as the death certificate issued by Baikunthapur-I Gram Panchayet are annexed.
Further case of the complainant is that she sent a Legal Notice dt. 04.07.2016 to the OPs through her Ld. Advocate stating that when the claim was lodged by the complainant against his body injury due to accident, the insured was alive and after his death, the complainant again lodged the death claim before the OPs against the said policy as per terms and conditions of the policy and she requested the OPs to settle the claim as early as possible, because the complainant has been facing acute financial crisis to maintain her family along with her two sons due to sudden death of her husband. After receiving the Legal Notice, the OPs sent a letter dt. 29.07.2016 requesting the complainant to submit some documents as per their letter and accordingly, the complainant sent those documents except UD Case Report and Post Mortem Report. The complainant also sent a letter dt, 13.08.2016 stating that the complainant had no UD Case Report as well as P.M report. she could not submit the same and at the same time she requested them to settle the claim as early as possible.
Again, the complainant sent a legal notice dt. 07.09.2016 to the OPs, submitting the attested copy of ID proof and age proof of the deceased Kajal Sk. The complainant also requested the OPs to look into the mater earnestly and to settle the claim of the complaint as per terms and conditions of the policy. But the OPs did not settle the claim as per terms and conditions of the policy , which indicates deficiency in service as well as unfair trade practice on the part of the OPs. On 30.12.2016 the OPs sent a letter to the complainant stating that on receipt of the claim intimation, an Investigator was appointed from their end to ascertain the real cause of death and as per Investigator’s Report, since the accidental death cannot be established, the claim is not admissible as per terms and conditions of the policy and it was repudiated by the OPs. The complainant went to the office of the OP No.1 several times, with a request, to re-consider her claim by narrating the above incident, but no result. Accordingly, she was compelled to file this case before this Forum. Due to such deficiency in service and unfair trade practice on the part of the OPs, the complainant and her family have been suffering from great mental pain, agony and harassment.
Upon this background, the complainant has prayed for a direction upon the OPs to pay Rs. 2, 00,000/- towards death claim of the husband of the complainant, as the said policy was issued by the OPs and Rs.1, 00,000/- as compensation along with Rs.25, 000/- as litigation cost.
OP Nos. 1 & 2 have contested the case by filing Written Version denying all the material allegations , contending inter alia, that the complainant has neither any locus-standi nor any cause of action to the file the present complaint and that the complaint is not at all maintainable in its present form and prayer and that the complaint is wholly mis-conceived , groundless and unsustainable in law and is liable to be dismissed and that the Hon’ble District Commission has no jurisdiction to entertain and adjudicate the dispute involved in this case as a ‘Consumer Dispute’ and that the complaint is barred by the provisions of the Consumer Protection Act, 1986 and also by law of limitation.
The specific case of the OPs is that the complainant is deliberately mis-leading the Ld. Forum with furnishing wrong information and the husband of the complainant was insured under the Personal Accidental Policy (Sankat Mochan, Plan-I) for the period commencing from 30.03.2015 to mid-night of 28.03.2016. The OPs appointed an Investigator and the report of the said Investigator are produced “1) As per the medical certificate, the cause of death is cardio respiratory failure. 2) No Post Mortem or FIR (First Information Report) was done. In absence of the Post Mortem Report and FIR (First Information Report), accidental death cannot be established.” The OP also submitted that as per the report of the Investigator, since the accidental death cannot be established, the claim of the complainant is not admissible as per the terms and conditions of the policy and stands repudiated.
Upon this background, the OPs claimed for dismissal of the case.
DECISION WITH REASONS
To prove the case, the complainant has adduced herself as a witness by filing evidence-on-affidavit and the OP Nos. 1 & 2 put questionnaires to her which was replied by her. In order to disprove the OP Nos. 1 & 2 have adduced evidence-on-affidavit and the complainant put questionnaires to them which was replied by the OP Nos. 1 & 2.
The complainant has produced some Xerox copies of documents as documentary evidence and the OPs also filed some Xerox copies of documents on their behalf.
From the evidence-on-affidavit filed by the complainant, it appears that she has corroborated the case depicted in the complaint and from the questionnaires and reply, it is found that the OP Nos.1 & 2 could not shake the evidence of the complainant. From the evidence-on-affidavit filed by the OP Nos. 1 & 2 it appears that they corroborated their written version in this affidavit and the questionnaires put to OP Nos. 1 & 2 by the complainant and the reply given by the OP No. 1 & 2 disclosed nothing except specific case of the OPs and the complainant denied the plea regarding that she is not entitled to get the claim as per the terms and conditions of the policy due to the fact as mentioned in the written version and the evidence of OPs to the fact that “ 1) As per the medical certificate for the cause of death is cardio respiratory failure. 2) No Post Mortem or FIR (First Information Report) was done. In absence of the Post Mortem Report and FIR (First Information Report) , accidental death cannot be established”.
Now, we have to look into the documentary evidence with reference to above plea of repudiation raised by the OPs. Admittedly, the Personal Accidental Policy (Sankat Mochan, Plan-I) bearing No. OG-15-2420-6402-00000339 issued by the OP Nos. 1& 2 is admitted. There is no dispute in between the parties. The main dispute in this case is that as the Investigator appointed by the OPs reported to them that (1) as per the medical certificate for the cause of death is cardio-respiratory failure; (2) No Post Mortem or FIR (First Information Report) was done. In absence of the Post Mortem Report and FIR, accidental death cannot be established and as such claim of the complainant was repudiated. But the fact remains that the husband of the complainant unfortunately fell down from the roof of a building under construction on 29.11.2016 at about 11.00 a.m. during his working period and he was seriously injured all over his body and he was treated after admission to Sharanya Multi Speciality Hospital, Burdwan and subsequently after considering the seriousness of the patient, he was referred to Kolkata for better management wherein he was treated at Bangur Institute of Neurosciences Hospital and due to non-availability of bed he was again admitted at Burdwan Medical College & Hospital and thereafter for better treatment or management, he was again referred to Kolkota wherein he was treated at Bangur Institute of Neurosciences Hospital where the patient was given some medicines and endorsing “Regret. No Bed Vacant” and he was again admitted to NRS Medical College & Hospital, Kolkata . In this way, his treatment was going on for a long period and ultimately, he died on 27.05.2016 at about 5.00 a.m. at his residence and the concerned doctor Dr. T. K. Biswas issued a death certificate mentioning all relevant causes of death. But prior to his death the complainant lodged accidental claim which was not given to her by the OPs and subsequently, after the death of the insured, she filed a death claim before the OPs who have repudiated the same by raising the report of their Investigator. Now, we have to look into the said death certificate issued by the doctor namely T. K. Biswas and the report submitted by the Investigator of the OPs as to how far the claim of the complainant can be settled down or can be repudiated.
Xerox copies of the report dt. 30.12.2016 issued by the Investigator of the OPs discloses the fact in written version or in evidence-on-affidavit that since the accidental death cannot be established; the claim is not admissible as per terms and conditions of the policy and as such stands repudiated. But the Xerox copy of the death certificate dt. 27.05.2016 given by Dr. T. K. Biswas discloses that Kajal Sk. M/M 47 years of Vill. Kariya, P.O. Baikunthupur-I, P.S. Burdwan Sadar, Dist. Burdwan died on 27.05.2016 at about 5.00 a.m at his home due to Cardio-respiratory failure in a post-operative case of C-7 D-1 Spinal Cord compression due to fall from the roof at the time of working on 29.01.2016 and finally stroke.
From the death certificate issued by Dr. T. K. Biswas , it is clear that due to Cardio-respiratory failure in a post-operative case of C-7 D-1 Spinal Cord compression due to fall from the roof at the time of working on 29.01.2016 and finally stroke. According to this evidence, cardio-respiratory failure of Kajal Sk. was for the reason that he fell down from the roof at the time working on 29.01.2016 and long period of treatment in several hospitals for the same with post-operative case of C-7 D-1 Spinal Cord Compression and ultimately it was happened on 29.01.2016 for the said accident. This evidence of Dr. T. K. Biswas in his Death Certificate cannot be washed away by the report of the Investigator appointed by the OPs. The question of demanding Post Mortem Report by the OPs from the complainant does not arise as the death was caused at his residence and the demand of F.I.R.(First Information Report) and P.M. report cannot throw away the case of the complainant when it has been proved otherwise. That apart, the OPs are in negligent to settle the first accidental claim and the Investigator was also appointed with long delay.
Furthermore, plea that no FIR was done by the complainant was raised by the OPs is hardly be believable as the husband of the complainant fell down from the roof of a building under construction during his working period and this is an accident. According to this factum of this case, there was no question of filing an FIR as there was no crime committed. As the husband of the complainant dies in his residence long after treatment due to fall down from the roof of a building under construction there is no necessity to conduct Post Mortem examination upon the death body of the patient and the immediate cause of death may be Cardio-respiratory arrest but that was a direct consequences of accident for which the insured has taken out the Personal Accidental Policy. In the facts and circumstances of the case, it must be read out as to the serve the policy of the complainant when the breach of the terms and conditions of the policy are not material policy cannot be repudiated on the ground that no Post Mortem or FIR was done by the complainant. In this connection, the Ld. Advocate for the complainant has cited two decisions reported in 2008(3) CPR 249 and 2005(4) CPJ 554.On going through those decisions of the Hon’ble State Commission of Maharashtra and Harayana , we find that those principles are applied in the present case. Accordingly, the reason for repudiation of the claim of the complainant by the OPs has no basis at all and the complainant is entitled to get the relief as prayed for.
Under the above facts and reasons and forgoing discussions, we are of opinion that the complainant has been able to prove her case that there was a deficiency in service on the part of the OPs.
So, the case succeeds.
Hence, it is
ORDERED
That Consumer Complaint No. 229/2017 be and the same is allowed on contest against the OP Nos. 1 & 2 , without any costs.
The complainant is entitled to get Rs.2, 00,000/- towards death claim of the insured Kajal Sk against the Policy No. OG-15-2420-6402-00000339 issued by the OP Nos. 1 & 2 along with compensation of Rs.75, 000/- as compensation towards mental pain, agony and harassment and Rs.20, 000/- only towards litigation cost. OP Nos. 1 & 2 are jointly and severally liable to pay the same.
OP Nos. 1 & 2 are directed to pay Rs.2, 00,000/- towards death claim of insured Kajal Sk against the Policy No. OG-15-2420-6402-00000339 along with compensation of Rs.75,000/- towards mental pain, agony and harassment and of Rs.20,000/- towards litigation cost jointly and severally to the complainant by account payee cheque within one month from the date of the order along with interest @ 6% p.a. from the date of filing of this case , failing which said amount shall carry further interest @6% p.a. till realization.
Let a copy of this final order be given to the parties on free of cost.
Dictated & corrected by me.
President
DCDRC, Purba Bardhaman
Member President
DCDRC, Purba Bardhaman. DCDRC, Purba Bardhaman
