Haryana

Ambala

CC/121/2022

Anju - Complainant(s)

Versus

Cholamandalam MS General Insurance Co Ltd. - Opp.Party(s)

Rahul Vig

02 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	121 of 2022
Date of Institution	:	11.04.2022
Date of decision	:	02.01.2024

1. Anju W/o Sh. Harbans Singh @ Harbans (now deceased) R/o Village Mohra, Tehsil and District Ambala.
2. Tamana (minor) D/o Sh. Harbans Singh @ Harbans
3. Khushi (Minor) D/o Sh. Harbans Singh @ Harbans (The Complainant No. 2 to 3 being minor are filing the present Complaint through their natural guardian and Next Friend & mother Smt Anju W/o Sh. Harbans Singh @ Harbans having no adverse to that of the Minor.)

All Residents of Village Mohra, Tehsil and District Ambala.

.……. Complainants

Versus

1. Cholamandalam, MS General Insurance Co. Ltd. through its Authorized Officer, Office at, HAT Claim Office. New No.319, Old No.154, Shaw Wallace Building, 2nd Floor Thambu Chetty Street, parry Corner Chennai-600001.
2. AU Small Finance Bank, through its Manager/ Authorized Officer Office at 6351/15 Nicholson Road Ambala Cantt.

….…. Opposite Parties.

 Before:        Smt. Neena Sandhu, President.

                              Smt. Ruby Sharma, Member,

            Shri Vinod Kumar Sharma, Member.           

 

Present:        Shri Iqbal Singh, Advocate, counsel for the complainants.

                      Shri R K Vig, Advocate, counsel for the OP No.1

                      Shri Manish Kashyap, Advocate, counsel for the OP No.2

Order:        Smt. Neena Sandhu, President.

                   Complainants have filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay Rs.4,30,000/- i.e. Sum Insured in Policy along with interest @ 12% due to delay caused for not accepting the same within time
2. To pay Interest on Rs.10,000/- on account of interest accrued on the amount the complainants were compelled to borrow for performing last rituals of insured deceased, alongwith interest @12% p.a.
3. To pay compensation to the tune of Rs.10,000/- for mental agony and harassment caused to the complainant
4. To pay cost of litigation of Rs.25,000/-.
5. Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of this case are that the complainants are the legal heirs of Sh. Harbans Singh @ Harbans. Husband of Complainant No.1 and father of the Complainant No.2 to 3, Sh. Harbans Singh @ Harbans is having Loan Account No.L9001020123333736 with OP No.2. The officials of OP No.2 are in tie-up with the OP No.1, and as such the OPs allured the husband of the complainant No.1 to obtain the Personal Accident Policy from OP No.1. The OPs also assured that the said Policy is valid upto 2026 and all types of loss, injuries to person due to accident are covered under the Insurance.  Harbans Singh @ Harbans husband of the complainant No.1, believing the version of the  OPs  obtained a Group Personal Accident Policy from the  OP No.1 as per the advice of  OP No.2 i.e.  policy no. 2884/00019904/048/00,  Certificate No.2884/000199904/007912/000/00, valid for the period from 11^th  February 2021 to 10^th  February 2026 on making payment of premium.  Harbans Singh @ Harbans was covered under the policy in question obtained under Personal Accident Insurance Policy. Sh. Harbans Singh @ Harbans was Rehri Vendor and use to do his daily work in routine manner. On 30.05.2021 at 1:30 PM when Harbans Singh @ Harbans was doing his daily/routine work and was going for having lunch towards his home, he saw a Calf standing in between Railway Line and while pushing the Calf out of the Railway Line Harbans Singh @ Harbans got hit by train at that site due to which he succumbed to injuries. The incident was witnessed by inhabitant of the Village and told to complainant No.1 about the entire incident. Deceased Harbans Singh @ Harbans was healthy and sound minded person and was very happily living by earning his livelihood by doing small works available in the market on demand basis. The complainants were totally dependent upon the earning of their predecessor Sh. Harbans Singh @ Harbans.  Since, he was insured under the policy in question, therefore, the complainants filed claim before the OPs, but to their utter shock, they repudiated the said claim vide letter dated 15.10.2021, mentioning therein that the deceased was trespasser and have committed suicide without citing any reason. The reasons stated by the OP No.1 are totally against the Investigation of the Railway Police.   The letter of repudiation of the claim of the complainant by the insurance Company/ OP No.1 is illegal, arbitrary because the Harbans Singh @ Harbans cannot commit suicide. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections with regard to maintainability and jurisdiction etc.  On merits, it has been stated that upon the filing of claim No.2884002643, OP No.1 got the matter verified & rejected the matter on the following grounds mentioned as under:-

“…….Ground of rejection or reason for closure:

We wish to highlight the fact that crossing a railway track is trespassing & is a punishable offence under the Indian railway Act, 1989. This act of the deceased was in violation of the Law which unfortunately attracts the provisions of Policy exclusion no. 7 of our Policy, which is reproduced as below. The Policy is only for Personal Accident Insurance.

Relevant Terms and conditions Part II (exclusions) Clause 7:-

This Policy does not provide benefits for any death, disability, expense or loss incurred in result of any injury attributable directly or indirectly to the following:

"7) any loss of which a contributing cause was the insured's actual or attempted commission of, or willful participation in, an illegal act or any violation or attempted violation of the law or resistance to arrest".

Though the event is an railway accident, the cause & an event leading to the accident are excluded under the policy & owing reasons mentioned above the claim falls outside the scope of cover….”

 

4.           The terms and conditions of the policy are applicable on both the parties and as such OP No.1 is justified in turning down the claim which do not fall within the Policy. From the perusal of claim documents, PA Intimation verification report & other relevant documents reveals that death of insured Harbans Singh is claimed to be due to Railway Accident. Furthermore documentary evidence like Police report, PA Claim verification report, Statements, PMR etc, it is proved that the cause of death of insured was due to Railway Accident. Furthermore as per investigation findings & available evidence, it has been found that insured himself committed suicide. Inquest Report/DDR No. 33 dated 30.05.2021 was registered & as per opinion of SHO also confirmed that the cause of death in this case is due to Railway Accident. None to be blamed. Medical Officer also gave the same opinion that the cause of death in this case is due to injuries sustained in railway Accident. The Policy issued to Harbans Singh was only "GROUP PERSONAL ACCIDENT INSURANCE POLICY" and is not covered under Railway Accident as per terms & conditions of the Insurance Policy. Furthermore as per investigation findings and available evidence, it has been found that insured himself committed suicide. Rest of the averments of the complainants were denied by OP No.1 and prayed for dismissal of the present complaint with heavy costs.
5.           Upon notice, OP No.2 appeared and filed written version wherein numerous objections were taken to the effect that the present complaint is totally misconceived, false and frivolous and vexatious and the same has been filed with ulterior motive to harass and defame the OPs; the complaint involves several dispute questions of fact and law, which would requires both parties to give detailed oral and documentary evidence, therefore the complainant cannot be adjudicated in summary proceedings and only ordinary civil courts have jurisdiction to decide the present complaint; the present complaint does not make a valid case of deficiency or unfair trade practice; this complaint is not maintainable; this complaint is liable to be dismissed as no cause of action even arose in favour of the complainants and against OP No.2 etc.   On merits, it has been stated that deceased Harbans Lal obtained a loan vide loan agreement No. 19001020123333736 and mortgaged his property with OP No.2. The loan agreement clearly envisages the repayment schedule alongwith the interest applicable on repayment by Harbans Lal, which was clearly understood, accepted and accordingly signed by the deceased Harbans Lal. Presently, the complainants being legal heirs of Deceased Harbans lal are Jointly and severally liable to pay total outstanding loan amount alongwith interest calculated upto date and the OP No.2 reserve its right of recovery with interest calculated upto 31-7-2022. At the time of sanctioning of the Loan, OP No.2 has never ever issued any Insurance policy to the deceased Harbans Lal nor has OP No.2 received any premium with regard to the same. OP No.2 is only the facilitator as far as the subject Insurance Policy was concerned. The liability and/or responsibility with respect to the said Insurance policy shall lie only against the OP no. 1 if any, as per the terms and conditions. The story alleged by the complainant and the version of the FIR is totally different as alleged in the complaint. It is denied that Harbans lal succumbed to injuries in the accident while pushing the Calf out of the railway line. Rest of the averments of the complainants were denied by OP No.2 and prayed for dismissal of the present complaint with exemplary costs.
6.           Learned counsel for the complainants tendered affidavits of the complainant no.1 and Tasveer Singh son of Shri Bhag Singh, R/o Village Jameetgarh, District Patiala as Annexure CW1/A and CW2/A respectively alongwith document as Annexure C-1 collectively and closed the evidence on behalf of the complainants. On the other hand, learned counsel for OP No.1 tendered affidavit of Mr. Abhishek Nigam, Authorized Signatory of Chola MS General Insurance Company Limited, Plot No.39, 2^nd Floor, Samyak Tower, Pusa Road, Karol Bagh, New Delhi and Dr.Gupreet Singh, JD Health Care Services, 843, Sector-11, Garden Colony, Kharar, District Mohali as Annexure OP1/A and OP1/B respectively alongwith documents as Annexure OP-1/1 to OP-1/8and closed the evidence on behalf of the OP No.1. Learned counsel for the OP No.2 tendered affidavit of Narayan Singh, Senior Executive Legal on behalf of OP No.2 i.e.AU Small Finance Bank Limited, 1^st Floor Raksha Business Center, Near Metro Retail Store, Chandigarh-Ambala Highway, Zirakpur, Chandigarh, Punjab as Annexure OP-2/A alongwith document as Annexure OP-2/1  and closed the evidence on behalf of the OP No.2.
7.           We have heard the learned counsel for the complainants and learned counsel for the OPs No.1 and 2 and have also carefully gone through the case file.
8.           Learned counsel for the complainants submitted that by repudiating the genuine claim filed by the complainants on the bald ground that cause of death  of the insured was due to railway trespassing which is an illegal  act and suicide cannot be ruled out, OP No.1 is deficient in providing service and also adopted unfair trade practice.
9.           On the contrary, the learned counsel for the OP No.1 while reiterating the objections taken in the written version submitted that the claim of complainants was rightly repudiated because as per clause 7 of the policy in question,  any loss of which a contributing cause was the Insured's actual or attempted commission of, or willful participation in, an illegal act or any violation or attempted violation of the law or resistance to arrest and the probability of suicide cannot be ruled out.
10.           Learned counsel for the OP No.2 while reiterating the objections taken in the written version submitted that the deceased Harbans Lal obtained a loan vide loan agreement No.19001020123333736 and mortgaged his property with OP No.2. He further submitted that the loan agreement clearly envisages the repayment schedule alongwith the interest applicable on repayment by Harbans Lal, which was clearly understood, accepted and accordingly signed by the deceased Harbans Lal. He further submitted that the complainants being legal heirs of Deceased Harbans lal are Jointly and severally liable to pay total outstanding of the loan amount with interest calculated upto date and OP No.2 reserve its right of recovery with interest calculated upto 31-7- 2022. He further submitted that at the time of sanctioning of the Loan OP No.2 has never ever issued any Insurance policy to the deceased Harbans Lal nor has the OP No.2 received any premium with regard to the same. He further submitted that OP No.2 is only the facilitator as far as the subject Insurance Policy was concerned. The liability and/or responsibility with respect to the said Insurance policy shall lie only against the OP No.1.
11.           It may be stated here that we have gone through the repudiation letter 15.10.2021, Annexure OP-1/7 and found that the claim of the complainants was repudiated on the ground that since the cause of the death of insured  is due to railway trespassing which is an illegal act and suicide cannot be ruled out and therefore the claim of the complainants fell under Part II, Exclusion Clause No.7 of the policy in question. Relevant portion of Annexure OP-1/7 is reproduced hereunder:-

“….This has reference to your claim for the unfortunate death of Late Mr.Harbans Singh on 30.05.2021 who was covered under the above Group Personal Accident Policy issued to M/s. Au Small Finance Bank

 

The cause of death is due to railway trespassing which is an illegal act and suicide cannot be ruled out.

 

We wish to highlight the fact that crossing a railway track is trespassing and is a punishable offence under the Indian Railways Act, 1989. This act of the deceased was in violation of the law which unfortunately attracts the provisions of policy exclusion no.7 of our policy, which is reproduced as below:

 

"Part II (Exclusions) Clause 7

 

This policy does not provide benefits for any death, disability, expense or loss incurred in result of any Injury attributable directly or indirectly to the following:

 

"7) any loss of which a contributing cause was the Insured's actual or attempted commission of, or willful participation in, an illegal act or any violation or attempted violation of the law or resistance to arrest; "

 

Though the event is an accident, the cause and an event leading to the accident are excluded under the policy and owing to the reasons mentioned above the claim falls outside the scope of cover.

 

In view of the above mentioned facts, we regret our inability to entertain the claim as per the policy terms and conditions….”

 

12.           The OP No.1 has stated that the insured had committed suicide and by trespassing the railway track he had contributed the loss willfully and also attempted violation of law, but, has not placed on record any evidence to prove that the insured had committed suicide, except bald observations of the Surveyor in his report, Annexure OP-1/3, wherein, it has been mentioned by him that the neighborhood of the insured confirmed that the insured himself has committed suicide underneath train. It is important to mention here that neither the name of the said neighbors has been disclosed by the surveyor nor their statements have been recorded alongwith cogent and convincing evidence. The said Surveyor has further opined in his report that as per investigation findings and available  evidences it has been found that insured himself committed suicide and that Post Mortem Report (PMR) findings also point towards same. The said Surveyor at the same time has also opined in his said report that through PMR also points that the insured committed suicide but no documentary evidence is found. Because the findings/opinion of the Surveyor in itself are without any documentary evidence, as admitted by himself, therefore, such an opinion of the surveyor, has no value in the eyes of law. Under these circumstances, the repudiation letter dated 15.10.2021, Annexure OP-1/7 issued by OP No.1, which is based on such ill findings/opinion of the Surveyor cannot sustain. 
13.           It is therefore held that because OP No.1 has failed to prove that there was any contributing cause on the part of the insured’s actual or attempted commission of, or willful participation in, an illegal act or any violation or attempted violation of the law or resistance to arrest, therefore, the complainants being legal heirs of the insured are entitled to get sum insured amount of Rs.4,30,000/-, as is evident from certificate of Insurance Annexure OP1/2,   especially, when it is the own case of OP No.1 that Police report (Annexure C-1) and Post Mortem Report dated 31.05.2021 (Annexure C-1), proved the cause of death of the insured due to Railway Accident. By repudiating the genuine claim of the complainants being nominee of the deceased insured, OP No.1 is deficient in providing service and also adopted unfair trade practice. 
14.           Since no deficiency in providing service has been proved on the part of OP No.2 as such, the complaint filed by the complainant against OP No.2 is liable to be dismissed.
15.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.2 and allow the same against OP No.1 and direct it, in the following manner:-
    1. To pay the insured amount of Rs.4,30,000/- to the complainants alongwith interest @6% p.a. from the date of repudiation of claim i.e. 15.10.2021, Annexure OP-1/7, till its realization.
    2. To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.3,000/- as litigation expenses.

 

The OP No.1 is further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OP No.1 shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 02.01.2024.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President