(Per Shri Narendra Kawde, Hon’ble Member)
(1) This appeal takes an exception to an order dated 23/08/2011 in Consumer Complaint No.29/2011 (Smt.Achala Rudraniwas Marde vs. Bajaj-Allianz General Insurance Co.Ltd.). passed by Central Mumbai District Consumer Disputes Redressal Forum at Parel, Mumbai (‘District Forum’ in short). The consumer complaint filed by the present appellant/complainant for settlement of claim of death of insured under the policy was dismissed by the District Forum on the ground that 121 mg/ltr of ethyl alcohol was found in the blood sample of the deceased insured at the time of accident as per the forensic laboratory report which was in violence of the terms and conditions of the policy.
(2) Admittedly, insured Mr.Rudraniwas Marde subscribed to comprehensive insured policy issued by opponent insurance company. Shri Rudraniwas Marde, insured met with accident of motorbike on 24/12/2009 and died prior to admission to hospital. Complainant is widow of the deceased insured. Policy provides insurance cover for personal accident leading to death for ``10,00,000/- which includes insured and his spouse. Claim under policy preferred by the complainant for `10 lacs was repudiated by insurance company by invoking exclusion clause stating that claim arising while under the influence of liquor or drug was not payable. Consumer complaint filed thereafter in District Forum was too dismissed holding no deficiency in service justifying repudiation of the insurance company.
(3) Aggrieved by the impugned order, this appeal is preferred by the complainant on the ground that the District Forum over-looked the contentions of the appellant/complainant in the consumer complaint that medicines administered to the deceased insured to save his life were having ethyl substance which reflected with minor percentage in the examination of blood. Further, it is stated that the deceased husband of the complainant never consumed liquor or any intoxicating substance in his life time ever. The insurance claim filed with the respondent/original opponent insurance company was repudiated for violation of exclusion clause B1b) of the policy stating that the insured was under the influence of alcohol at the time of accident. Complainant also made further submission stating that insured husband of the complainant died as a result of accident that took place due to negligence on the part of on-coming motorcyclist who gave dash to the motorcycle of the deceased. No negligence whatsoever can be attributed to the deceased insured while driving the motorcycle at the time of accident. By repudiating the insurance claim, the insurance company did not consider the principle of utmost good faith required to be observed by the contracting parties which forbids either party from non-discloser of the facts which the parties know. Further it is the case of the complainant that the terms and conditions relied upon by the insurance company were never supplied and not brought to the notice of the insured. Therefore, non-disclosure of the terms and conditions is violation of utmost good-faith which is the base of insurance contract between the parties. The policy subscribed by the deceased husband was a Comprehensive Health Cover issued on floater basis with the main clause and the alleged exclusion clause cannot shadow the main clause to repudiate the legitimate insurance claim under the policy. Important ground taken up in appeal is that the District Forum while rejecting the complaint did not appreciate that the accident was not occurred due to negligence on the part of the deceased insured and ignored rulings of the Hon’ble Apex Court in – Royal Sundaram Alliance Insurance Co.Ltd. vs. Sangeeta Deepak Tolani – SLP No. 25418/2009.
(4) Heard both advocates of the parties and perused the record placed before us. The learned advocate of the appellant/complainant relied upon the judgement of the Hon’ble Supreme Court in the matter of –Modern Insulator Ltd. vs. Oriental Insurance Co.Ltd. - (2000) 2 Supreme Court Cases 734 wherein the Hon’ble Supreme Court held that “exclusion clause under the policy when not explained to the insured, then the same is liable to be ignored while considering the insurance claim.” The learned advocate relied upon the judgement of the Hon’ble Supreme Court in the matter, supra.
(5) Further, the learned advocate of the appellant/complainant relied upon the following judgements:-
(i) Jitendra Kumar vs. Oriental Insurance Co. Ltd. – 2003 ACJ 1441 (SC)
(ii) Life Insurance Corporation Ltd. Vs. Smt. Ratan Kaur – 2008 CTJ 450 (CP)(NCDRC)
(6) On carefully going through the judgment in the matter - Jitendra Kumar vs. Oriental Insurance Co. Ltd. – 2003 ACJ 1441 (SC), I find that it has no relevance for the case on hand. In the next matter of Life Insurance Corporation Ltd. Vs. Smt. Ratan Kaur – 2008 CTJ 450 (CP)(NCDRC), it is held that “it could be made applicable in cases where it was established that the life insured died due to his own act of omission or commission making him liable for a penal offence, in case he had survived. It is further held that if any term was capable of two interpretations, interest of justice would be best served if the interpretation beneficial to the policy holder was accepted. Petitioner could not escape from its liability to pay the accident benefits.” In the present case, the insured succumbed to the accident, yet the insurance company repudiated the claim by invoking exclusion clause.
(7) In the first referred judgement of the Hon’ble Supreme Court in the matter of – Royal Sundaram Alliance Insurance Co.Ltd. Vs. Sangeeta Deepak Tolani – SLP No.25418/2009, wherein the two issues were considered by the Hon’ble Apex Court. The first, the premises that the accident occurred due to rash and negligent driving of dumper and the fact that deceased was intoxicated had in no manner contributed to the accident and the second issue was about exclusion clause, invoked by the insurance company, which was not served and explained to the insured. The Hon’ble Apex Court held “if exclusion clause is not explained to the insured, then the same is liable to be ignored while considering the insurance claim.”
(8) In another judgement i.e. Modern Insulator Ltd. Vs. Oriental Insurance Co.Ltd. – (2000) 2 Supreme Court Cases 734 – wherein, the view, “if the exclusion clause is not explained to the insured, the same is not binding on him” had already been taken and the said view has been confirmed by the Hon’ble Apex Court in the matter of – Royal Sundaram Alliance Insurance Co.Ltd. Vs. Sangeeta Deepak Tolani – SLP No.25418/2009.
(9) The learned advocate of the insurance company pleaded that though the Hon’ble Apex Court judgement is law of land under Article 141 of the Constitution of India, yet the Hon’ble Apex Court has observed in the matter of – Delhi Administration vs. Manohar Lal – (2002) 7 Supreme Court Cases 222 – that Hon’ble High Court or any other court instead of mechanically applying the decision of the Supreme Court should first find out the ratio of the decision on a careful reading of the judgement and then consider the applicability to the case in hand. The submission of the learned advocate of the insurance company is sustainable. However, the facts of the case on hand are identical to the facts involved in the decision of the Hon’ble Supreme Court [Royal Sundaram Alliance Insurance Co.Ltd. Vs. Sangeeta Deepak Tolani – SLP No.25418/2009 and Modern Insulator Ltd. Vs. Oriental Insurance Co.Ltd. – (2000) 2 Supreme Court Cases 734] relied by the complainant.
(10) The District Forum heavily relied on the exclusion clause under the policy and dismissed the consumer complaint. However, the facts narrated in the Police Panchnama which explicitly says that the insured was hit in the motor bike accident by the rash and negligent driving of the on-coming motorcyclist (from opposite side) and against this motorcyclist, criminal proceedings have been lodged. The nexus of presence of alcohol in the blood analysis report of the deceased insured and accident occurred resulting into the death of insured can in no way be established as contributory cause to the fatal accident.
(11) It is the contention of the complainant as averred in the complaint, in the appeal memo and affidavit evidence filed before the District Forum that the exclusion clause invoked by the insurance company for repudiation of the insurance claim was not part of the policy document supplied to the deceased insured. Therefore, as submitted, the repudiation by invoking the said exclusion clause is arbitrary and illegal and not sustainable in the eyes of the law. The insurance company in the written version and also affidavit in evidence denied the contention of the complainant saying that the relevant note of the policy schedule was attached to the policy and there was no whisper of protest and for the first time the complainant made grievance about the non-exclusion clause. This submission of insurance company is on oath to oath. There is no other rebuttal evidence to disprove the contention of the complainant. Therefore, there is no reason to disbelieve the complainant’s version since insured deceased is no more and moreover, the complainant is a co-insured under the policy as a spouse.
(12) For the reasons recorded above, I find that the repudiation of the insurance claim by invoking the exclusion clause which was not supplied or brought to the notice of the insured is arbitrary and not sustainable in the eyes of law. Thus, the insurance company has incurred deficiency in service to the complainant.
(13) Now coming to the sum insured of the policy issued by the insurance company, it is observed that the policy covers health risk in para no.3 (i) Hospital Cash (ii) Personal Accident (Death + PTD) – No.of persons : Self + Spouse (Sum insured `10,00,000/-) and (iii) Health Guard - No.of persons : Self + Spouse (Sum insured `2,00,000/-). Here claim on account of death of the insured is under consideration. Policy extends cover of `10,00,000/- for deceased insured and his spouse i.e. present complainant as widow of the deceased. Since the insured, Rudraniwas M. Marde expired in the accident, 50% of the sum i.e.`5 lacs will be payable to the complainant and not `10 lacs as claim. This sum was payable immediately after filing the insurance claim by the complainant in the year 2010. However, there is an arbitrary and wrongful repudiation of the claim by the insurance company. The District Forum erroneously dismissed the consumer complaint without going into the merit of the case covered by the Apex Court rulings cited in the body of this order. Therefore, the complainant is entitled to receive a sum of `5,00,000/- together with appropriate rate of interest to meet the ends of justice. In view of this, I find merit in the appeal. I hold accordingly and pass the following order.
ORDER
1. The appeal is partly allowed.
2. Impugned order dated 23/08/2011 in Consumer Complaint No.29/2011 passed by Central Mumbai District Forum is quashed and set aside. In the result, the consumer complaint No.29/2011 is partly allowed.
3. Respondent/opponent insurance company is directed to pay a sum of `5,00,000/- along with interest @9% p.a. effective from the date of repudiation i.e. 19/07/2010 till the realization of the amount.
4. Respondent/opponent insurance company to bear its own costs and shall pay costs of 25,000/- to the appellant/complainant.
5. All these amounts shall be paid within a period of 60 days from the date of this order, failing which additional interest @3% p.a. on the amounts ordered to be paid will be payable till its realization.
Pronounced on 26th July, 2013.
