DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Friday the 17^th day of May 2024

CC.260/2017

Complainants

1.               V. Akbar,

Sthuthi, Marakkankandi Paramba,

P.O. Karaparamba,

                        Kozhikode.

2.               Sharifa,

W/o. Akbar,

Sthuthi, Marakkankandi Paramba,

P.O. Karaparamba,

                        Kozhikode.

    Suppl. 3.  Suhana. V,

                    W/o. Abdul Azees,

                     Fathimas, Naduvattom,

                     Beypore North, Beypore,

                     Kozhikode – 673015

     Suppl. 4.  Subeena Muneer,

                    W/o. Muneer. K. M,

                    Kaniyath (HO),

                    Juma Masjid, Edavanakad,

                    Ernakulam – 682502

                   (By Adv.  Sri. Aboo Puthiyottil)

                   ( Supplemental complainants 3 and 4 were impleaded as per order dated 16/05/2024 in IA No. 190/2024)

Opposite Parties

1.                     Chief Manager,

Union Bank of India,

Main Branch,

Calicut – 673032

2.                     M/s. New India Ass. Co. Ltd,

Head Office: 87, Mahathma Gandhi Road,

Fort, Mumbai – 400001

      (OP1 By Adv. Sri. A. Viswanathan, OP 2 By Adv. Sri. Benny Joseph Kuruvathazha)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT              

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2. The complainants are the father, mother and sisters of the deceased Salman Faris, who was a visa card holder of the first opposite party bank. He was working under the first opposite party as Mini Deposit Collector. Salman Faris died on 12/01/2014 due to an accidental fall from a building tower at Misfalah (Makkah), which was under construction at Jabal Omar Projects (KSA).
3. The deceased Salman Faris was a credit card holder having death cover insurance with the second opposite party insurance company. All the necessary documents were submitted to the opposite parties for allowing the insurance amount. But the amount was not sanctioned so far in spite of repeated requests. Finally, a lawyer notice was issued to the opposite parties on 10/11/2016, but in vain. There is gross deficiency of service on the part of the opposite parties. The complainant has sustained monetary loss, mental agony and inconvenience due to the negligent and lazy attitude of the opposite parties. Hence the complaint to direct the opposite parties to pay an amount of Rs. 2,00,000/- to the complainant as the insurance amount as assured as per the debit card along with Rs. 50,000/- as compensation and cost of the proceedings.
4. The opposite parties have entered appearance and filed written version separately.
5. The first opposite party,  in their version, has stated that the insurance cover is to be met by the second opposite party to whom the claim with documents had already been forwarded.  There is no deficiency of service on the part of the bank. The bank has no liability as such and the complaint as against them is not sustainable. For the lawyer notice, the bank had already sent a reply. It is, therefore, prayed to absolve the bank from the liability. 
6. According to the second opposite party, the complaint is barred by limitation. The averment that the deceased was a visa card holder of the first opposite party is to be put to strict proof. The averment that the deceased was working under the first opposite party as Mini Deposit collector and died on 12/01/2014 was not within the knowledge of the second opposite party. The cause of death mentioned in the complaint is false and hence denied. The averment that the deceased died due to an accidental fall from a building at Misfalah, Makkah is utterly false and hence denied.
7. On 19/09/2013 the second opposite party has signed a MOU with the first opposite party for insurance coverage for debit card holders of the bank. The period of insurance cover was between 29/09/2013 to 28/09/2014. As per the insurance cover, in the event of accidental death of the card holder, the legal heirs of the Prime Card holder of the  first opposite party is to be paid Rs. 2,00,000/- and that of Add On Card holder  is to be paid Rs. 1,00,000/-. The legal heirs will have to submit the claim to the debit card issuer branch of the bank with necessary documents. The documents such as duly filled up claim form, original death certificate, FIR, post-mortem certificate, statement of account duly attested by the bank etc. should be submitted for processing the claim.
8. On 06/01/2015 the second opposite party received a claim through the first opposite party in connection with the death of Salman Faris. While processing the claim, it was noticed that as per the documents submitted, the deceased  died due to Cardiac Pulmonary Arrest. Moreover, even after repeated requests, the complainants failed to provide autopsy report of the deceased, which is a condition precedent to settle the claim. There is no FIR produced. The coverage of insurance to the debit card holders is only for accidental death. The deceased Salman Faris died due to Cardiac Pulmonary Arrest, which is not an insured peril. There is no evidence that he died due to accident and hence the company is not liable to compensate the complainant. There is no deficiency of service or unfair trade practice on the part of the opposite party. According to the second opposite party, the complaint is devoid of merits and is liable to be dismissed.
9. The points that arise for determination in this complaint are;

1. Whether the complaint is barred by limitation?
2. Whether there was any deficiency of service on the part of the opposite parties, as alleged?
3. Reliefs and costs.

10.  Evidence consists of oral evidence of PW1 and Exts A1 to A5 on the side of the complainant. No oral evidence was let in by the opposite parties.  Exts B1 to B3 were marked on the side of the second opposite party. Exts X1 to X5 were also marked. 
11. We heard both sides. Brief argument notes were also filed.
12. Point No.1:-   The second opposite party has taken a contention in the written version that the complaint is liable to be dismissed in limine as the same is filed beyond the period of limitation. The contention is that the deceased Salman Faris died on 12/01/2014 whereas the present complaint was filed after a period of 3 years.
13. As per Section 24-A of the Consumer Protection Act 1986, the complaint is to be filed within 2 years from the date on which the cause of action has arisen. In this case, according to the second opposite party, the claim was received by them on 06/01/2015. Ext A2 letter issued by the first opposite party to the second opposite party shows that it was on 20/07/2015 that the first opposite party had received an email from the second opposite party stating that the claim was repudiated. So the cause of action has arisen on 20/07/2015 on repudiation of the claim. So the present complaint filed on 17/07/2017 is well within time. The complainant is not time barred. Point found accordingly.
14. POINT No. 2:- The complainants are the legal heirs of the deceased Salman Faris and they have approached this Commission alleging that the insurance claim put in by them through the first opposite party in connection with the accidental death of their son Salman Faris was repudiated by the second opposite party without valid reason.
15. The first complainant has got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the legal medical report from the Ministry of Health, Saudi Arabia, Ext A2 is the copy of the letter dated 20/07/2015 by the first opposite party to the second opposite party,  Ext A3 is the copy of the lawyer notice dated 10/11/2014, Ext A4 is the copy of the reply notice dated 2/12/2016 and Ext A5 is the copy of the legal heirship certificate.
16. As already stated, no oral evidence was let in by the opposite parties.  Ext B1 is the copy of the minutes of the meeting, Ext B2 is the copy of the legal medical report and Ext B3 is the copy of the death certificate for non-Saudis.
17. Ext X1 is the copy of the minutes of the meeting dated 19/09/2019, Ext X2 is the copy of the policy schedule, Ext X3 is the copy of the certificate in respect of compliance of section 64 V B of the Insurance Act 1938, Ext X4 is the copy of the claim form and Ext X5 is the copy of the death certificate.
18. It is not disputed that the complainants are the legal heirs of the deceased Salman Faris, who was a Prime Card holder of the first opposite party. The deceased was working under the first opposite party as Mini Deposit collector. He died on 12/01/2014. As per the insurance cover, in the event of accidental death of the card holder, the legal heirs of the Prime Card holders of the first opposite party is to be paid Rs. 2,00,000/-.The period of the insurance cover was between 29/09/2013 to 28/09/2014. A claim was preferred on 06/01/2015 to the second opposite party through the first opposite party. The coverage of insurance was only for accidental death. The claim was repudiated by the second opposite party for the reason that the deceased died due to Cardiac Pulmonary arrest, which, according to them, is not in insured peril. There is no serious dispute on the above aspects.
19. As we have already stated, the claim was repudiated by the second opposite party stating the reason that the death was due to Cardiac Pulmonary Arrest and it is not an accidental death. The definite case of the complainants is that Salman Faris died on 12/01/2014 at Saudi Arabia due to a fall from a building tower under construction and hence it is a case of accidental death.
20. It is true that the post-mortem report is not forthcoming. The learned counsel for the complainants submitted that inspite of their earnest efforts, the autopsy report could not be obtained from Saudi Arabia. It was pointed out that the complainants have produced the copy of the Legal Medical Report regarding the death of Salman Faris issued by the Ministry of Health, Saudi Arabia, which is marked as Ext A2. The reason of death stated in Ext A2 is “Cardiac Pulmonary Arrest – reason can specify after conducting autopsy”. In Ext A3 death certificate for non-Saudis, the reason of death is shown as Cardiac Pulmonary Arrest. But going through Ext A2 it can be seen that the death of Salman Faris was due to a fall from the building tower under construction at Misfalah (Makkah).The relevant recitals in pages 1 and 2 of Ext A1 are extracted below.

“ I Dr. Mazin Bin Alaa Uddin Meesha – legalmedical specialist of Holy Capital Forensic Medicine Department – upon the request of Ajyad Police Station my memo number (161941) dated 20/03/1435H. (21/01/2014) containing to conduct medical examination onthe corpse of the deceased Salman Faris Akbar – Indian nationality, started at 11.00 am of Tuesday, 20/03/1435 (21/01/2014) to the Morgue of Forensic Medicine of the mortuary King Faisal Hospital – Shisha and I have signed the medical report of the above deceased for the purpose of writing medical report about the death.

I hereby state the following:

                                    Firstly:

Referring to the death report No.310 dated 11/03/1435H. regarding the death of the above mentioned who found inside one of the light stand of one of the towers at Misfalah under new construction- including that referring the corpse for conducting forensic medical examination as the corpse is decayed, for the purpose of determining the reason and time of death – copy attached.

Secondly : Examination report:

On Sunday, (11/03/1435)(12/01/2014) it is contacted by telephone to Dr. Mazin ala Uddin Misha at about 11.30 am from Ajyad Police Station and his information about a case of falling from high place. When arrived to the site at about 12:15 noon we found the place is located at one the high buildings under construction – of the Jabal Omar Projects. We arrived the place where the found that it is in the middle of a pit with water and the pit is covered with some of wooden pieces, broken because of falling the body on it. We found the body in the state of regress touched the both thighs with chest. The body is depended from falling to the pit with the wooden pieces from the front and the back side in the edge of the cement pit”.

21. In page 3 of Ext A1, it is recorded as follows

“We found the following vital injuries on the corpse:

1. A wound with non-level edges and irregular shape about 2×3 cm inthe middle of the forehead at the bottom of the beginning of hairs at the front part of the head.

2. A wound with non-level edges with a bow shape opening at the upper part with a size of 3.5 cm on the left part of the forehead the bottom of the beginning of 3 cm hairs at the front part of the head.

3. Red coloured scratches – line shaped with 3 cm located in the middle of right front knee, located in the joint of the knee at bout 13cm .

22.       Further it is stated in the last page of Ext A1 as follows:

“ The both injuries mentioned in No (1,2) in the medical report are the vital injuries with a nature of bruise due to colliding or striking with body or bodies of any kind.

The injury mentioned in the No. (3) of the external medical examination is new injury with a nature of friction resulted by touching or friction with hard surface or body of any kind”.

23. Thus from Ext A1, it is clear that the death of Salman Faris was an accidental death due to fall from a building at Saudi Arabia,  even though the reason of death is Cardiac Pulmonary Arrest.
24.  The second opposite party could not show that the death by heart attack or Cardiac Pulmonary Arrest is not covered by the policy. In the Order dated 25/05/2020 in Revision Petition No. 3375/2009 (SBI Life Insurance V/s Mrs. Y. Dayamani) the Honourable National Consumer Disputes Redressal Commission has held that ;

“Acute Myocardial Infarction (heart attack) can be said to be an accidental death would be if such an attack takes place as a result of some external and sudden incident such as trauma or shock induced by external factors/forces but it cannot certainly be said that a death due to heart attack in the normal cause would fall in the category of an accidental death”.

25. It is crystal clear from Ext A1 report and the injuries mentioned therein that it was not a death due to Cardiac Pulmonary Arrest in the normal course. If the death of Salman Faris was a death due to Cardiac Pulmonary Arrest in the normal course, the injuries as stated in Ext A2 would not have been there. In the light of Ext A2, it cannot be said that the non-production of the post-mortem certificate is very significant in this case. The second opposite party ought to have honoured the claim on the basis of Ext A1 which establishes that the death of Salman Faris comes under accidental death.
26. From the above discussion, what emerges is that the claim was wrongly repudiated by the second opposite party. The act of the second opposite party in wrongly repudiating the claim and thereby denying the legitimate claim, amounts  to  deficiency of service. The complainants are entitled to get the claim amount. It goes without saying that the act of the second opposite party has caused gross mental agony and hardship to the complainants and they are entitled to be compensated adequately. The claim for compensation is Rs. 50,000/-. The claim appears to be a bit excessive. However, they are entitled to get a reasonable amount as compensation. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 10,000/- will be reasonable compensation in this case. The complainants are also entitled to get Rs. 5,000/- as cost of the proceedings.
27. Point No. 3:- In the light of the finding on the above points, the complaint is disposed of as follows;

                 a)  CC.260/2017 is allowed in part.

b) The second opposite party is hereby directed to pay to the complainants the claim amount of Rs. 2,00,000/- (Rupees two lakh only) with interest @ 9% per annum from the date of the complaint i.e. 17/07/2017 till actual payment.  

c)  The second opposite party is directed to pay a sum of Rs. 10,000/- (Rupees ten thousand only)  to the complainants as compensation for the mental agony and hardship suffered.

d) The second opposite party is directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as cost of the proceedings to the complainants. 

d)  The order shall be complied with within 30 days of receipt of copy of this order.

Pronounced in open Commission on this, the 17^th day of  May,  2024.

Date of Filing:  17/07/2017

                                                          Sd/-                                                                                          Sd/-

                                                   PRESIDENT                                                                             MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Copy of the legal medical report from the Ministry of Health, Saudi Arabia.

Ext.A2 – Copy of the letter dated 20/07/2015 by the first opposite party to the second opposite party.

Ext.A3 – Copy of the lawyer notice dated 10/11/2014.

Ext.A4 – Copy of the reply notice dated 2/12/2016. 

Ext.A5 – Copy of the legal heirship certificate.

Exhibits for the Opposite Party

Ext.B1 – Copy of the minutes of the meeting.

Ext.B2 – Copy of the legal medical report.

Ext.B3 – Copy of the death certificate for non-Saudis.

Witnesses for the Complainant

PW1 -  V. Akbar (Complainant)

Exhibits for the Third party

Ext.X1 - Copy of the minutes of the meeting dated 19/09/2019.

Ext.X2 – Copy of the policy schedule.

Ext.X3 – Copy of the certificate in respect of compliance of section 64 V B of the     

                 Insurance Act 1938.

Ext.X4 – Copy of the claim form.

Ext.X5 - copy of the death certificate.

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                                                          PRESIDENT                                                                              MEMBER

True Copy,      

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                                                         Assistant Registrar.