Smt. Basanti Das Paul W/o- Late Dipak Kumar Paul for self and as natural guardian mother of minor Debasish Paul as complainant has filed the complaint U/s.12 of the Consumer Protection Act, 1986.
The case of the complainant, in brief, is that the husband of the petitioner is a consumer who had purchased a Bolero vehicle for maintaining his livelihood. The husband of the petitioner Dipak Kumar Paul purchased the vehicle by taking financial assistance from O.P.No-2 & 3 amounting to Rs.6,00,000/-. The number of the vehicle is WB. 59 B / 6948. At the time of taking of the loan the deceased Dipak Kumar Paul purchased a Group Personal Accident Master Policy bearing no 2841/00226215/000/00 UIN:IRDA/NL-HLT/ CHSGI / P-P / V.I / 49/ 13-14 period from 30-12-2017 to midnight of 29-12-2020 by paying one time premium as per direction of O.P.No-2 & 3. After paying 16 numbers of monthly installments Dipak Kumar Paul committed suicide on 30.04.2019.
Her further case is that from May to July 2019 she was unable to pay the monthly installment and as per terms and conditions of the policy, after death of insured, the financial company, i.e O.P.No-2 & 3 bound to realize the balance loan amount from the Insurance Company i.e O.P.No-1 but without realization from the O.P.No-1, O.P.No- 2 & 3 always pressurized to realize the loan amount from the petitioners and there is a gross negligence and fraudulent trade practice. That for his safe guard as well as the vehicle Dipak Kumar Paul purchased the insurance policy and as per terms and conditions of the policy the petitioners are liable to get the sum assured from O.P.No-1. That if O.P.No-2 & 3 pull out the vehicle without any information the petitioners suffered irreparable loss and injury as vehicle is the only source of income of the petitioners. That the cause of action arose on 30.04.2019 when Dipak Kumar Paul died and thereafter continued day to day. The complainant thus prayed for relief of Rs.4,50,000/- i.e sum assured including all benefits and interest, Rs.25,000/- for harassment, mental pain and agony, litigation cost of Rs.5,000/- as also direction upon the O.P.No-2 & 3 not to pull out the vehicle till disposal of the case.
The O.P.No-1 has contested the case by filing written version denying all the material allegation contending interalia that the case is not maintainable in law and that the case is barred by limitation and the allegations made are not true.
The specific case of the O.P.No-1 is that the complainant cannot get the benefit of Group Personal Accident Master Policy in this particular case as the policy is for accidental benefit of the insured or nominee or legal heirs as the case may be for any kind of accidental death or in case or permanent total disablement or permanent partial disablement caused in accident subject to the terms and conditions of the policy concerned. In this instant case the husband of the complainant Dipal Kumar Paul died by hanging and his death is not an accident in nature, rather it is a suicide. As per policy terms and conditions any suicidal death is excluded from the policy domain.
Upon this back ground the O.P.No-1 claimed the dismissal of the case.
O.P.No-2 & 3 in their W.V totally denied the claim of the complainant.
O.P.No-2 & 3 claimed that the complainant purchased the Group Personal Accident Master Policy which is meant for accidental death only and as such the case is not maintainable.
P o i n t s f o r d e c i s i o n s
- Is the case maintainable in law?
- Is there any deficiency in service on the part of the O.Ps?
- Is the complainant entitled to get relief as prayed for?
D e c i s i o n s w i t h r e a s o n
All the above points are taken up together for the brevity of the case.
In order to prove the case the complainant was examined herself as P.W.1.
Perused the oral evidence of complainant and documentary evidence filed by the complainant.
Admittedly Dipak Kumar Paul purchased a Mahindra Bolero vehicle vide Registration Number WB 59 B /6948 on taking financial assistance of Rs.6,00,000/- from the financial company i.e O.P.No-2 & 3 and he agreed to pay the loan amount by 35 EMIs starting from 28.12.2017 to 28.10.2020, out of which he had paid 16 EMIs till his death dated 30.04.2019.
It is also admitted that at the time of taking loan Dipak Kumar Paul had purchased a Group Personal Accident Master Policy bearing No.2841/00226215/000/00 period from 30.12.2017 to midnight of 29.12.2020 by paying one time premium to O.P.No-1 /Insurance Company, with sum assured Rs.4,50,000/-.
It is not disputed that Dipak Kumar Paul died on 30.04.2019 due to hanging and since then the petitioners i.e wife and minor son of Dipak Kumar Paul did not pay remaining EMIs.
The case of the complainant as also oral evidence that as per terms and conditions of the policy the complainants are liable to get the sum assured from O.P.No-1 / Insurance Company. There is no positive date on which the claimants submitted their claim before the Insurance Company to get the sum assured. There is no documentary evidence showing date of submission of claim to get the sum assured back by the claimants from O.P.No-1 / Insurance Company. In fact the claimants did not submit any claim to get the sum assured back from O.P.No-1 / insurance Company on any date after death of Dipak Kumar Paul. Under clause 4.7.1 the complainants being legal heirs of Dipak Kumar Paul had to submit Completed Claim Form within 30 days from the date of death of Dipak Kumar Paul on 30.04.2019.
On the other hand, the positive case of O.P.No-1 is that the complainants cannot get the sum assured back as Dipak Kumar Paul died by hanging and his death is not an accident in nature, rather it is a suicide and as per terms and conditions of the policy it is excluded from the policy domain. Have a look to Exhibit-1, Personal Accident - Certificate of Insurance, issued by O.P.No-1 / Company the insurer, in name of the insured Dipak Kumar Paul depicting several clauses with exclusions. Under Clause 3.1 intentionally self-inflicted injury, suicide or any attempt thereat while sane or insane. Under said clause being a case of suicidal death the heirs of the Dipak Kumar Paul, in our opinion, are not entitled to get the sum assured from O.P.No-1 / Company.
Ld. Advocate for the complainant referred judgments RE: M/s Modern Insulators Ltd Versus The Oriental Insurance Co. Ltd reported in 2000 (1) CPR 93 (SC) wherein it has been held that where exclusion clause was not included in the policy nor communicated to the insured, Insurance Company cannot claim the benefit of the exclusion clause so as to avoid its liability under the insurance policy, In this case there is clear exclusion caluse in the policy and this decision is not applicable in this case. Ld. advocate also referred Judgment of First Appeal No.269/2017 of H.PS.C.D.R.C, Revision Petition No:186/2007 of N.C.D.R.C, New Delhi wherein it was held that 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. In the instant policy there are specific Exclusion Clauses 3.1 to 3.11 and present complainant(s) is / are not the insured, therefore, she /he / they are not competent person to say whether before issuance of insurance cover the Insurance Company or its agent or intermediary explained the exclusion clauses to the insured or not. The Insured Dipak Kumar Paul being the only competent person can say whether the exclusion clauses were not explained to him in due deligence or not, who is no more to give satisfactory explanation.
The fact of the case and evidence of complainant Basanti Das Paul is that O.P.No-2 & 3 bound to realize the balance loan amount from the Insurance Company i.e O.P.No-1, but without realization from O.P.No-1 the financial company i.e O.P.No-2 & 3 always pressurized to realize the loan amount from the claimants and if O.P.No-2 & 3 pull out the vehicle without any information the claimants suffered irreparable loss and injury as vehicle is the only source of income of the claimants, so they claimed and also got injunction order against O.P.No-2 & 3 not to pull out the vehicle till disposal of the case.
In our opinion, O.P.No-2 & 3 the financial company is / are entitled to realize remaining 19 EMIs from the complainants i.e legal heirs of Dipak Kumar Paul (since deceased) and also Mr/ Ms Pradip Pal the co - borrower / guarantor of the loan agreement number XVFPIAR00002225770 and O.P.No-2 & 3 have no concern with the insurance claim between the claimants and O.P.No-1. Accordingly, by letter dated June 04 2019 O.P.No-2 & 3 sent notice to the co-borrower / guarantor of said loan requesting to make payment of the future dues promptly to avoid penal and other charges failing which they shall take recourse under the agreement including taking possession of the vehicle financed under the agreement. Even after said notice the complainants / guarantor have defaulted in payment of outstanding EMIs which compelled O.P.No-2 & 3 to exert their rights under the agreement including taking of possession of the vehicle and thereafter this complaint petition was filed on 30.08.2019.
From case record it reveals that on the date of filing of the case O.Ps were restrained by injunction order not to pull out or seize the vehicle from the petitioners / complainants and after getting notice O.P.No-1 submits a petition for exoneration and injunction order has been extended till disposal of the case and also ordered that the exoneration matter can be disposed of at the time of disposal of the case.
Under above facts and discussion we are of the view that O.P.No-2 & 3 has / have no responsibility to collect / realize the remaining 19 EMIs from O.P.No-1 / Insurance Company, against insurance policy, rather in terms of 3.1 Exclusion clause of the policy being a suicide case, present complainants / petitioners are not entitled to get the sum assured of the policy stands in name of the deceased Dipak Kumar Paul and the claim petition is liable to be dismissed against O.P.No-1., which amounts to exoneration. The claimants / petitioners and also the guarantor were / are duty bound to pay the outstanding EMIs to O.P.No-2 & 3 but they are taking dilatory tactics by filing this case and obtaining injunction order to enforce the terms and conditions of the loan agreement. The claim of the complainants in our opinion is vexatious and frivolous and the case is also liable to be dismissed as against O.P.No-2 & 3 and the injunction order has no leg to stand on dismissal of the case.
We find no deficiency in the service on the part of the O.Ps, so the case is not maintainable in its present form. All the points are thus answered in the negative.
In the result the claim case fails. Hence, it is,
O R D E R E D
that the C.C No-48/2019 be and the same is dismissed on contest against O.Ps but without any cost.
Let a copy of this order be given to the parties free of cost.
