Before the District Consumer Dispute Redressal Commission [Central District] - VIII,      5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No. 91/21.06.2023

Bharti Sadh wife of Late Sunil Sadh

R/o 124/7, Street no.1C, West Azad Nagar

Krishna Nagar, Delhi -110031                                                                   …Complainant

                                                Versus

OP. Cholamandalam MS General Insurance Co Ltd

Plot no.39, Second Floor, Samyak Tower, Pusa Road

Opposite to Pillar no.120, Karol Bagh, SO Central Delhi

New Delhi-1100005                                                                                      ...Opposite Party

                                                                                    Date of filing:            21.06.2023

Coram:                                                                       Date of Order:           12.07.2024

Shri Inder Jeet Singh, President

Ms. Rashmi Bansal, Member -Female

                                                       FINAL ORDER

Inder Jeet Singh , President

This case is scheduled today for order (item no.27)

1.1. (Introduction to case of parties) - The complainant has grievances of deficiency of services against OP since the complainant's husband Shri Sunil Sadh/insured had taken insurance policy no. P/161121/01/2014/000324 from OP/Insurer for period from 04.09.2020 to 03.09.2021 against payment of premium covering Compulsory Personal Accident cover for driver-owner [hereinafter referred as “insurance policy”] in respect of his two wheeler Activa scooty  of Honda Motorcycle bearing registration no. DL14SM 4357 (briefly ”vehicle or Activa”) covering the cover known as two wheeler package policy. The complainant's husband met with road accident at public place, he was hit by other, he was injured and hospitalized during the validity of insurance policy but when valid insurance claim was preferred under Personal Accident cover, it was not reimbursed by OP/Insurer on the pretext of that insured had not a valid driving licence at the time of accident. He was having valid driving licence for scooter and LMV for entire country. The charge-sheet u/s 279/304A IPC was filed against unknown person after investigation of police. That is why the complaint for sum insured with interest, compensation and other relief claimed.

1.2. The OP opposes the complaint that there is no deficiency of services. The parties to insurance contract are bound by its terms and conditions. The insured's claim was of OD/ accidental damage in respect of vehicle and not under Personal Accident cover of death of Shri Sunil Sadh. There is no deficiency of services. The OP is not liable for any claim towards the complainant.

1.3. It is relevant to mention that sub-paragraphs 1.1 and 1.2. above are reflected on the basis of pleadings of the parties, however, at the stage of evidence and final arguments, the OP has introduced new facts and a document, it will be referred appropriately.

2.1. (Case of complainant) – Complainant Ms. Bharti Sadh is sole surviving legal heir, being wife of insured/Sh. Sunil Sadh (since deceased). On 04.09.2020  the insured had purchased the Activa/vehicle from Celebrate Motors Pvt. Ltd., it is authorized intermediary agent of OP. The vehicle was got registered with the transport authority, Delhi vide registration no. DL 14SM 4357. Simultaneously, the vehicle was insured from the OP as per insurance policy, however, he was not provided terms and conditions of the policy. It was assured by the officials of OP to provide quality, insurance services and hassle free settlement of claim in the eventuality of any incident.

2.2. On 09.09.2020 the complainant’s husband/insured was driving the vehicle and he was proceeding on Geeta Colony to Akshardham Road, he suffered road accident near School Block Shakarpur, Delhi when another speedy vehicle, under rash and negligent manner, badly  hit his scooty. He sustained grievous injury and firstly he was admitted in Lifeline Hospital, Priyadarshni Vihar, Delhi for Emergency Health Care and then shifted to Apollo Hospital, Sarita Vihar, Delhi for better medical care and treatment; MLC No. 604/2020  was also prepared by the attending doctor. 

2.3. The matter was also reported to the police and FIR No. 390/2020  was registered at P.S. Shakarpur, Delhi and the IO of the case informed all agencies concerned, he also verified documents of the vehicle including insurance certificate, driving licence, medical papers during the course of investigation. On 07.09.2022  untraced report for offences u/s 279/304A IPC was filed by the police agency before the concerned court and the concerned Court had accepted the police report and closed the matter on 07.12.2022.

             The insured hospitalized in Apollo Hospital for long period and kept on life support system on account of grave, physical and mental infirmities. Thence, he was kept in home arranged healthcare with continues treatment and assessment by specialist doctors. The complainant’s husband’s health deteriorated with further complications and on 18.04.2021, he died in the course of medical care. Because of multi-dimensional treatment from the time of accident till his death, the insured remained in persistent vegetative stage with no hope of recovery and completely dependent on nursing care. The complainant and all the family members remained grossly occupied in care and saving life of Sunil Sadh till he breathed last. It cost more than Rs. 15 lakhs  for hospitalisation, specialized treatment, medical tests, home arranged medical care besides other medical expense around 2 lakhs and Rs. 500/- per day on physiotherapy, Rs. 15000/- per month on nursing care/attendant  and substantial amount of special diet and conveyance.

2.4. Shortly from his accident, the claim intimation was given to OP and its intermediary officials by the complainant and her family members; officials of TPA and Apollo Hospital seeking insurance assistance and urgent disbursal of sum insured under compulsory personal accident policy coverage but the officials of OP did not respond positively. Further on 18.04.2021, the incident of re-hospitalization and demise of insured were brought to the knowledge of OP by hospital and family members seeking support of insured amount. The complainant again gave claim intimation to the OP in the first fortnight of May 2021 and submitted all required document and relevant facts. It was assured to process the claim speedy after getting surveyor’s report and completing the procedural formalities but OP’s surveyor did not collect and verified the facts and information from the complainant or from others.

2.5  On 14.11.2021  the OP rejected the accidental claim of complainant on frivolous ground that insured was not holding an effective driving licence by the driver of scooty at the time of incident, which is alleged to be breach of driver’s clause in the insurance policy apart from violation of Motor Vehicle Act. There was no such breach of any condition of policy, insured was experienced driver and he was holding effective driving licence no. UP 76 1993 0000 939 issued by MLO Transport Department, Farukhabad, UP, to drive two wheelers and MLV all over India. It was valid driving licence even on the date of accident. In fact, the legitimate claim was not considered by the OP and it was rejected in breach of directions of IRDA, statutory provisions and mandates of judiciary. The OP has exhibited casual, highly unprofessional and absolute insensitive approach.

            Thus, after rejection of genuine and valid claim, the complainant and her family made consecutive representation to the OP and its official concerned by apprising all facts, information and documents to process the claim but all went in vain.

2.6  The complainant was constraint to borrow  substantial amount from near relations and others for costly treatment, special diet and other expenses of her husband vis-à-vis non-payment of insurance claim to the complainant caused deep shock, depression, physical, mental sufferings, pain, agony, trauma, losses and damage to her and family. Moreover, the complainant is a disabled person and all those futile exercise has aggravated her health condition and she has been compelled to sustain avoidable medical expenditures. She quantifies minimum and moderately damages of Rs. 15 lakhs. Moreover on 28.03.2023 legal notice was also served to OP alongwith documents to settle the claim alongwith interest and compensation but neither it was replied nor claim amount was paid till date. That is why the present complaint of sum insured of Rs. 15 lakhs with interest at the rate of 18% pa, compensation of Rs. 15 lakhs with interest at the rate of 18% pa, cost of litigation and other related expenses besides for other appropriate reliefs. 

2.7  The complaint is accompanied with copies of – identity proof of complainant, DL of insured Sh. Sunil Sadh, RC of the vehicle, insurance certificate of the vehicle, final report under FIR No. 390/2020  with appropriate Annexures including DL, mechanical inspection report, photographs of the place of accident and scooty, photographs of injured/insured, medical treatment papers from 09.09.2020 of Life Line Hospital onwards including discharge summary of 07.11.2020 issued by Apollo Hospital, treatment papers from Apollo Hospital and bills paid, treatment paper at Le Crest Hospital, Ghaziabad, bills issued and death certificate on insured, copy of order dated 07.12.2022  issued by Metropolitan Magistrate, claim rejection letter dated 14.11.2021  and legal notice dated 28.03.2023. 

3.1 (Case of OP)- It is brief and compact written statement dated 26.07.2023, containing plea of the OP to oppose the complaint in its entirety. There is no deficiency of services on the part of OP, therefore, complaint is liable to be dismissed. The repudiation letter pertains to accidental damage of vehicle no. DL14 SM5457 and the repudiation letter was not in respect of accidental death of Sh. Sunil Sadh. The complainant has not filed any document to show that the claim was lodged under compulsory accident personal cover for owner/driver. Thus, no claim under compulsory accident personal cover was filed with the OP. Therefore, complaint is not maintainable.

3.2. The complainant has raised triable issues, which can be decided on which through detail examination and cross examination of witnesses, it could be possible in the civil court and not under the summary procedure of the Consumer Protection Act. The OP relies upon Oriental Insurance Co. Ltd. Vs. Muni Mahesh Patel IV 2006 CPJ 1 (SC) that civil court is appropriate to decide the case which are complicated in nature and in which oral and documentary evidence are required to be led.

            The complaint is abused of process of law as under the garb of present complaint. The complainant is trying to illegal gains that too without filing the claim and against the terms and conditions of insurance policy. Moreover, the complainant is not sole surviving legal heir of Sh. Sunil Sadh, therefore, the complainant is to be asked to furnish surviving member certificate. Since, it is not a medi-claim policy, as such there was no role of TPA in the present case. The complaint is without cause of action and it is liable to be dismissed.   

3.3. The written statement is not supported with any document.

4.1 (Replication of complainant) – On 15.09.2023 the complainant filed detailed rejoinder, it is response to the allegations of reply as well as reiteration of the complaint as correct. The complainant denies allegations that compulsory personal accident claim was not filed but reiterates that such claim was filed alongwith documents, otherwise the rejection letter dated 14.11.2021 itself belies the own defence of OP. There is no complex or travel issue or complicated facts involved requiring detailed examination of witnesses and trial by civil court exclusively. The case law cited by OP is distinguishable and not applicable to the circumstances of present complaint. The present Commission may determine the complaint. The record filed clearly established that the OP and its officials have acted arbitrarily in breach of mandate of law and directives to process and pay the claim, it is liable for gross deficiency of services and unfair trade practice. Not only the family members but also officials of concerned hospital and TPA officials came forward to assist the victim family and contacted OP officials or processing claim to generate required fund. The complaint is valid. The complainant is entitled for relief claimed.    

4.2. On  15.09.2023  itself, the complainant furnished additional documents of bills of medicine, physiotherapy, family survival certificate, death certificate of insured’s mother Ms. Abla Rani Sadh, as the same could not be furnished earlier [by order dated 23.10.2023  this application was allowed by this Commission and the documents additionally filed were taken on the record]

5.1.  (Evidence)- In order to establish the complaint, the complainant (CW1) Smt Bharti Singh led evidence by filing her affidavit  coupled with the documentary record filed with the pleading besides evidence of CW2 Mukesh Sadh (elder brother of insured) and CW3  Shri Abhishek Sadh (nephew of insured)

5.2. On the other side OP led evidence by filing affidavit of Sh.  Sujeet Kumar Sahu, Deputy Manager (Legal) of OP. Its evidence is also on the lines of written statement. However, the facts of paragraph no.6 is introduced first time in the affidavit dated 23.10.2023 but without filing document mentioned paragraph 6, then formal application was filed on 04.12.2023 and it was allowed without prejudice to the rights of complainant under the case

6.1 (Final hearing)- The complainant and the OP have filed their respective written arguments by referring case laws/citation.

6.2. The parties were also given opportunity to make oral submission, therefore, Ajay Kumar, Advocate for complainant made oral submissions. However, the other side requested that submission made in writing may considered for oral submission, without supplementing separately.

6.3  The complainant, in addition to her case already referred, also contends, briefly, the complainant refers her own evidence that complainant has established by her from all corner. However, the evidence of OP is false and contrary to its own record, law, rules and regulations.  There is breach of duty by the OP and its officials besides deficiency of service. The claim was processed mechanically, without verifying facts and  without adhering to procedure. The Senior officials of OP did not give effect to mandates of Insurance Laws, Rules, Regulations, Claim Procedure Manual, guidelines of IRDA, and directions of higher courts, for processing and settlement of accidental death claim. In addition the complainant was not given copies of insurance papers, terms, conditions and surveyor's report at any point of times, besides even after serving legal notice.
            The Consumer Protection Act is a special law, which was enacted for expeditious redress of consumer matters and to provide fast reliefs to the consumers, safeguarding them from unnecessary long civil trial, as additional alternative legal remedy.
This  matter is within the ambit of Consumer Protection Act, 2019, as the complainant is consumer of insurance service provided by OP, wherein gross deficiency in services have been proved by documentary evidences and testimonies of witnesses. The insured/complainant's husband paid requisite insurance premium for Compulsory Personal Accident coverage under Package Insurance Policy, the complainant being sole surviving legal heir and beneficiary of policy is entitled for relief claimed. The justice is to be done by Consumer Commission, without procedural wrangles by awarding appropriate relief with interest. The complainant refers the following cases in her favour -

(i) Luckhnow Development Authority Vs. M. K. Gupta 3 (1993) CPJ 7 (SC)
(Paras-5,8 and 11)

(ii) Ghaziabad Dvt. Authority Vs.BalbirSingh  (2004) 5 SCC 65 (Para-6, Pg.79)

(iii) Arun Bhatia Vs HDFC AIR 2022 SC 3920

(iv) Gurpreet Kaur Vs. Bajaj Allianz Life Insurance Justice 1(2022) CPJ 112 Delhi
(v) 1 State of Karnataka Vs. Vishwa Bharti House Bdg. Co-op Society (2003) SLT 435
 (Para-18) (vi) United India Ins. Co. Ltd Vs MKJ Cor. 1996 6 SCC 428

(vi) Poly Mat India Pvt. Ltd. Vs. National Insurance Co. II (1999) CPJ 42 (NC)
(vii) Tanawala Synthetic Textile Ltd. Vs Oriental Ins. Co. 1986-96 Consumer 2103 (NC)

(viii) Association of Victim of Uphar Tragedy Vs UOI 2003 3 AD Delhi

(ix) Rattan Lal Mehta Vs Rajinder Kapoor 1996 ACJ 372

x) Nagappa Vs Guru Dayal Singh 2003 ACJ 12 SC

(xi) Oriental Insurance Co, Ltd  Swaminathan 2006 ACJ 1398 SC

(xii) Dinesh Baria Vs Go Digit Genenral Insurance Co. {Extract of News Citation TOI 121.02.2024 that Consumer Commission, Vadodara, awarded compensation of Rs.15 lakhs  even after expiry of registration certificate of vehicle under Motor Vehicle Act.

(xiii) Rajesh Tyagi Vs Jaibir Singh 2019 ACJ 1345(Delhi)

(xiv)Divisional Manager United India Insurance Co Ltd Vs R Rekha  ors (Civil Misc. Appeal No.1428/2017).

(xv) Helen C Rebello Vs Maharastra St Road Trt Corp. 1999 ACJ 10 (SC) and

(xvi) Royal Sundram Alliance Insurance Co. Ltd Vs Ajit Chandrakant Rakvi 2020 ACJ 691.

6.4. The written arguments of OP are replica of the written statement either on the point of objection that matter involves triable issues or otherwise that the complainant had not lodged any claim under personal accident package cover with the OP. However,  paragraph 6 of the written arguments also reproduce paragraphs 6 of the affidavit of evidence that by letter dated 03.07.2023 the complainant was asked to furnish record of claim form, first aid treatment record, indoor case papers, post-mortem report, etc. Briefly, it was the claim under OD for which repudiation letter was issued. Since there was no claim under personal accident category filed to the OP, therefore, the complaint is liable to be dismissed.

7. (Findings)- The contentions of both the sides are considered, keeping in view the material on record, inclusive of documentary record of the parties, besides statutory provisions of law and case law referred. There is no dispute of insurance policy in respect of vehicle in favour of insured, which covers the personal accident cover of Rs.15 lakhs, the date of accident, registration of FIR, filing of untraced charge-sheet u/s 173 CrPC for offences u/s 279/304A IPC, acceptance of final report. However, disputes are whether or not of jurisdiction of this Commission, issue of lodging of claim, repudiation of claim and entitlement of claim? Thus, they are being taken one by one.

            The parties have presented case law to derive reasons and fortify their contentions, however, in Padma Sundara Rao & Others Vs State of Tamil Nadu & others II 2002 SLT,  483, rule on precedent was discussed that ratio of a case is facts specific, that is,  ratio of case has to be read as per the facts of a particular case and even change of a single fact can make difference to the ratio of case. The principle is being kept in view, while appreciating the rival case.

8.1 [Whether or not matter needs adjudication by civil court]- The OP has reservations that matter needs adjudication by civil court since it involves triable issues, which further involves examination and cross-examination of witnesses. But it is opposed by complainant that there is nothing existing as such which may warrant decision by the civil court. The present Consumer Commission is competent to determine the complaint.

8.2. The adjudication by general civil court has wider power to adjudicate civil rights and obligation of the parties as compare to quasi-judicial consumer Fora/ Commission being creature of special law has limited power. There may be matters, which involves complicated question of law or facts or mixed of facts and law to be determine by the civil court. The objection of OP has to qualify this test.  However, on scrutiny of record, there is no material or specific issue of fact or law shown by OP that it needs adjudication by civil court exclusively or the present Commission cannot determine it in summary way.  In fact, the material on record is sufficient to determine the issue involved. Thus, this Commission has jurisdiction to decide the dispute involved. .

9.1.[Whether or not terms and conditions of policy were provided to insured] –There are rival plea as on the one side complainant complaints that terms and conditions of policy were not provided to the insured but the OP has juxtaposition plea by denying the facts asserted by complainant.

9.2  In order to ascertain answer to this point, the record is to be seen. The complainant has proved “Motor Two-Wheelers Policy Bundled-Schedule cum Certificate of Insurance” insurance. It is certificate of insurance (in three pages) and it is not appended with  the terms and conditions of policy. Now, what is requirement of law, it was dealt and discussed in precedent-

In Manmohan Nanda Vs United- India Assurance Co. [Civil Appeal no. 8386/2013) decided on 6.12.2021 by Hon'ble Supreme Court of India has also dealt the regulations 'the IRDA (Protection of Policyholder' Interests) Regulations 2002' and  it was held (in paragraph 34 thereof) "that just as insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of policy that is going to be issued to him and must strictly confirm to the statement in the proposal form or prospectus or those made through its agents. Thus, principle of utmost good faith imposes meaningful reciprocal duties owned by the insured to the insurer and vice-versa".

10.1. [Whether evidence can be led beyond the pleadings? –The case of OP in its evidence (being first time) and in the final arguments introduced  facts and a document that the complainant was issued letter dated 03.07.2023 seeking various detail inclusive of post-mortem report etc. and the same was not provided by the complainant. The claim is not made out. On the other side, the complainant has opposed it vehemently that what was never the case of OP in its pleading has been introduced first time in paragraph 6 of the affidavit and it is repeated in para 6 of the final arguments. Moreover, the complaint was filed long back on 21.06.2023 and the letter being relied upon by the OP is of 03.07.2023 , which was even not referred in the written statement. It has been created at last phase when affidavit dated 23.10.2023 of evidence was filed but the document was not brought and it was separately filed subsequently in the month of November 2023. This document is beyond the pleading and it cannot be read in evidence.

10.2 This rival contention is based on facts and proceedings of the case. The reply of the OP is on record, it does not reflect any fact or reference of letter dated 03.07.2023. It was not filed with the written statement. It was stated in para 6 of the affidavit of evidence filed by OP, it was also not accompanied with the affidavit of evidence. Then subsequently, separate application was filed that this document could not be annexed with the affidavit of evidence.  The application was considered by order dated 04.12.2023 while permitting the OP to lead this document as evidence that it would be without prejudice to the rights of the complainant under law.

It is settled law that evidence cannot be led beyond the pleadings and in case there is variance in the pleading and evidence, then such evidence cannot be relied upon and adverse inference is to be drawn [ Kashi Nath (dead through LRs) Vs Jagan Nath 2003(8) SCC 740. Therefore, although the date of letter is mentioned in para 6 of the affidavit  but it was not so mentioned or referred or uttered in the written statement, in other words the letter dated 03.07.2023 was never the case and defence of OP in its reply. Therefore, it cannot be read in evidence.

11.1 [What is the status of repudiation letter?}- The OP’s case is that the claim lodged was under own damage claim and it was not under personal accident package cover, the repudiation letter dated 14.11.2021 was also issued in respect  of  OD claim. When intimation was received from the complainant, immediately the OP had issued letter dated 03.07.2023 itself while requesting the complainant to furnish relevant claim form, indoor case papers, post-mortem report, etc. But it was not complied. 

But it is opposed by the complainant that in order to avoid statutory obligation to pay the sum insured under the policy, this plea is being taken by the OP. There is nothing in the repudiation letter dated 14.11.2021 that it was for OD claim, whereas the claim was lodged under the personal accidental package. Moreover, the OP was also served with legal notice dated 28.03.2023 prior to filing of the complaint, even it was also not responded nor any stand was taken that it was OD claim. The letter dated 03.07.2023  is an afterthought. The post-mortem was not carried in respect of insured because of Covid-19 wave and precautions.  

11.2. The submissions of both the sides are based on record. At the outset, two factors are emerging, firstly the rejection letter dated 14.11.2021 bears claim no. 3397065837 and it was addressed to insured Shri Sunil Sadh. The letter dated 03.07.2023  seeking certain information and document bears the claim no. 3397210090  and it was addressed to the complainant (although it has already been held in paragraph 10.2 above that it is beyond the pleading and cannot be read). It means the OP is talking about two claims viz. (i) claim no. 3397065837 and (ii) claim no. 3397210090. The first repudiation letter does not specify that it is pertaining to own damage claim but in subsequent letter, it specifies personal accident claim query letter. If this kind of pattern is being followed, as mentioned in second letter, it ought to have been so reflected in the repudiation letter that the claim was own damage claim.

            The OP has taken the defence that the repudiation letter was pertaining to own damage claim, if it was so, then onus was on OP to prove the same. The OP would have been in possession of claim form and other record, if it was lodged as OD claim but the same has not been proved by OP to authenticate that it was own damage claim. At the cost of repetition, it is already held that letter dated 03.07.2023 cannot be read. Therefore, it is held that the circumstances are establishing that the repudiation letter dated 14.11.2021 was pertaining to rejection of claim lodged by the complainant under personal accident package cover. It would not be out of context to mention that when a legal notice is served with serious allegations and if it is not responded, then appropriate inference may withdrawn, as held in -

“Kalu Ram vs Sita Ram (1980 RLR Note 44) it was held that when plaintiff before filing the suit, makes serious assertions in notice to the defendant, then defendant must not remain silent by ignoring to reply. If he does so, then adverse inference may be raised against him”.

It applies to situation in hand, that  OP failed to reply the legal notice of complainant regarding personal accident cover claim but OP took plea that claim was of OD claim, which has not been proved by OP.

11.3. In the repudiation letter dated 14.11.2021,  the plea of OP is that the complainant’s husband/insured was not having a driving licence at the time of incident  of accident. Whereas, the complainant has proved driving licence UP7619930000939  and this driving licence has was issued on 05.05.1993 and it was valid upto 09.05.2019 (T) and valid upto 28.04.2021  (NT). The scooty is in the category of NT. The incident of accident has happened on 09.09.2020  and insured has expired on 18.4.2021. The date of accident is within the validity of driving licence.

11.4.  It is settled law that the OP cannot take the defence beyond the grounds taken in the repudiation letter and the ground in repudiation was want of driving licence on the date of accident. The OP could not prove this plea but complainant has succeeded to establish of valid driving licence of her husband/insured. The reliance can be placed on-

(a) Saurashtra Chemicals Ltd Vs NIC 2019 19 SCC 70 (while relying upon  Galada Power and Telecommunication  Ltd. Vs United Insurance Co,. Ltd 2016 14 SCC 161), it was held that it is settled position that an insurance company cannot travel beyond the ground mentioned in the letter of repudiation, they cannot do so at the stage of hearing of consumer complaint before NCDRC.

(b)  JSK Industries  Pvt Ltd. Vs Oriental Insurance Co. Ltd  Civil Appeal No.7930/2022 dod 18.10.2022, it is held that  repudiation letter is  an important document in case of insurance claim. The wordings of repudiation letter should be clear and  include all possible valid ground of repudiation. Since in later stages or in court of law, an insurance company cannot take stand other than what is mentioned in the repudiation letter.

11.5   The complainant has proved the medical papers inclusive of discharge summary and by taking them together, the same are in sequence that insured was met with an accident, he was taken to Life Line Hospital then he was shifted to Apollo Hospital, Sarita Vihar where he remained under continuous treatment from the date of admission on 01.10.2020  till his discharge on 07.11.2020. He was diagnosed diffuse axonal injury (DAI) and  diabetes mellitus. DAI is a type of traumatic brain injury that results from a blunt injury to the brain. He was discharged with plan under management at home with advises prescription or diet and regular physiotherapy. Simultaneously, the police was investigating the matter under FIR no. 390/20 u/ss 279/337 IPC and subsequently on receipt of opinion of grievous hurt on the MLC, section 338 IPC was added by the police. The statement of Sh. Sunil Sadh could not be recorded by the police, since he was unfit for statement from the beginning and throughout during the treatment or subsequently. The insured/Sunil Sadh died on 18.04.2021 and at that time he was under treatment at Le Crest Hospital, Ghaziabad and the cause of death was cardiopulmonary arrest. The police had  finally prepared report u/s 279/304A IPC and the report was accepted by the court of Metropolitan Magistrate, Delhi with directions to reopen the case in case any clue is discovered in respect of culprit.

The OP has also objection in the final argument that the cause of death was cardiopulmonary arrest it cannot be considered under personal accident package cover. However, it would not given any benefit to the OP since the personal accident package cover for two wheeler vehicles are the creation of rules/regulations inclusive of the guidelines by IRDA.  The GR.36 of Personal Accident (PA) cases under Motor Vehicle Policy of owner-driver prescribes scale of 100% of sum insured in respect of permanent total disablement. The insured remained under treatment for diffuse axonal injury (DAI) after accident.

11.6.  Since the inured is covered under personal accident package cover and the sum insured is Rs. 15 lakhs and the episode of accident happened to the insured on 09.09.2020, which result into his medical treatment and it remained continue throughout. The insured or his legal heir/complainant is entitled for the benefit under the insurance policy cover. The complainant has also proved surviving certificate that she is the only legal heir left behind by the insured. Moreover, the complainant has also proved medical bills in respect of treatment of the insured. 

            The complainant has not calculated the total medical bills, pharmacy, tests, expenses, physiotherapy etc. however, the copies of bills, expenses, etc. pertaining to all the hospitals were filed. The total bills amount on computation comes to Rs.16,68,255/-.

12.1 In view of the discussion on circumstances, record proved and conclusions drawn the complaint has been proved against OP that the complainant's husband was insured under the insurance policy,  and there is coverage of personal accident for sum insured of Rs.15,00,000/-. Thus, complaint is allowed for sum insured of Rs.15,00,000/- in favour of complainant and against OP.

12.2.  The complainant claims interest at the rate of 18% pa, however, there is no provision of interest component in the insurance policy, nor there is proof of other covenants interest at the rate of 18%pa.  It is also a fact that the complainant had applied for settlement of claim, she was in need of money to meet out regularly need of treatment bills and medicines for insured, but claim was not settled. Thus she had parted with money, while spending the amount on treatment of insured despite insurance cover. Moreover, section 171 of the Motor Vehicle Act, 1988, empowers the Motor Accident Claim Tribunal, to allow simple interest on amount awarded from the date of complainant till realisation of amount. By drawing analogy from this provision as well as other circumstances of deprived of money during treatment, when average interest in bank sector was 7.5% pa (on FDR cases), that  simple interest at the rate of 7.5%pa from the date of complaint till realisation of amount is determined in favour of complainant and against OP, it will serve both ends of justice

12.3 The Insured claims another relief of compensation of Rs.15 lakhs with interest at the rate of 18%pa in lieu of irreversible sufferings, trauma, losses, damages, oppression, injustice by her and her family from OP besides costs of litigation and other appropriate relief because of denial of claim. Since, it is already held that the complainant is entitled for reimbursement of sum insured amount and by considering the inconvenience, difficulties, trauma faced by her, she also deserves reasonable compensation to be consonance to the situation involved and sum insured amount. Thus, compensation of Rs.50,000/- is determined in favour of complainant/insured and against the OP/insured besides costs of Rs.15,000/- is also allowed in favour of complainant and against OP. The complainant’s Interest on compensation is declined.

13.1 Accordingly, the complaint is allowed in favour of the complainant and against the OP to pay  amount of Rs.15,00,000/- along-with interest at the rate of 7.5%pa from the date of complaint till realization of the amount, apart from compensation of Rs.50,000/- and cost of Rs. 15,000/-. 

The OP will pay the amount within 45 days from date of this order, failing which the OP will be liable to pay enhanced interest at the rate of 9% on the amount Rs.15,00,000/-. The OP may deposit the amount within time in the Registry of this Commission by way of valid instrument in the name of the complainant.

13.2 The complaint is disposed off, however, any expression given in this final order on complaint being under summary procedure, shall not be construed any opinion on other matter,  whether pending (if any) or to be instituted, either civil or criminal [as police had registered FIR No. 390/2020  in P.S. Shakarpur, Delhi of rash and/or negligence driving against unknown offender and appropriate open police report u/ss 279/304A IPC was also filed in the then court of Metropolitan Magistrate, Karkardooma, Delhi].

14.  Announced on this 12th day of July, 2024 [आषाढ़ 21,  साका 1945].  Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.

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