Punjab

Moga

CC/15/81

Amarjit Kaur - Complainant(s)

Versus

Director/Responsible Person, HDFC Ergo, General Insurance Co. Ltd - Opp.Party(s)

Sh. Vishal Jain

01 Mar 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 C.C. No. 81 of 2015

Instituted on: 7.10.2015

Decided on: 01.03.2016

Amarjit Kaur aged about 47 years widow of Sh.Amrik Singh s/o Sh.Ajaib Singh, r/o Village Rassulpur, Tehsil Zira, District Ferozepur.

                                                                             ……….   Complainant 

Versus

 

1. Director/Responsible Person, HDFC Ergo, General Insurance Co. Ltd., Regd./Corporate office at 1^st Floor, 165-166, Backbay Reclamation, H.T.Parekh Marg, Church Gate, Mumbai-400020.

 

2. Branch Manager, HDFC Ergo General Insurance Co. Ltd., Nearest Branch Office at Surya Tower, Mall Road, Ludhiana.

 

3. Branch Manager, HDFC Bank Limited, Dharamkot Road, Fatehgarh Panjtoor, Tehsil Dharamkot, District Moga.

 

                                                                           ………. Opposite Parties

 

 

Complaint under Section 12 of the Consumer Protection Act, 1986.

 

 

Coram:      Sh.S.S.Panesar, President

                   Smt.Bhupinder Kaur, Member

 

Present:      Sh.Vishal Jain, Adv. Cl. for complainant.

                   Sh.Ajay Gulati, Adv. Cl. for opposite parties no.1 & 2.

                   Opposite party no.3 exparte.                     

 

ORDER :

(Per S.S.Panesar, President)

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986  (hereinafter referred to as the 'Act') against Director/Responsible Person, HDFC Ergo, General Insurance Co. Ltd., Regd./Corporate office at 1^st Floor, 165-166, Backbay Reclamation, H.T.Parekh Marg, Church Gate, Mumbai and others (hereinafter referred to as the opposite parties) for directing them to pay an amount of Rs.7,75,000/- regarding the sum assured and coverage qua i.e. Credit Shield Insurance Rs.3,50,000/-, accidental death Rs.4,00,000/- and accidental hospitalization expenses Rs.25,000/- regarding the policy no.2950 2009 1452 3900 000 (Sarv Suraksha Policy) issued in the name of husband of complainant for the period 25.11.2014 to 24.11.2016 to secure the loan amount taken by the husband of the complainant from opposite party no.3 and also in case of death of life assured during the pendency of policy which was issued in the name of husband of complainant alongwith interest @ 12 % p.a. in the name of complainant being nominee. Further opposite parties may be directed to pay Rs.1.00 lac as compensation for mental tension, harassment and agony suffered by the complainant and Rs.22,000/- as litigation expense or any other relief which this Forum may deem fit and proper.

2.                 Briefly stated, the facts of the case are that the husband of the complainant namely Amrik Singh s/o Ajaib Singh was working as a Mandi Supervisor in Market Committee Dharamkot, who had opened an account having no.50100062801386 with opposite party no.3. Husband of the complainant also obtained a loan of Rs.3,50,000/- from opposite party no.3, which was to be repaid within the period from 07.01.2015 to 07.12.2016 in monthly installment of Rs.17,263/-. The loan so sanctioned was actually disbursed on 24.11.2014. Opposite party no.3 secured the loan amount and insured the husband of the complainant with a policy issued by HDFC Ergo General Insurance Company Ltd., a sister concern of HDFC Bank and it also deducted an amount of Rs.1863/- from the account of husband of complainant on 24.11.2014 and sent to opposite party no.1 & 2, who issued a policy bearing no.2950 2009 1452 3900 000 (Sarv Suraksha Policy) in the name of Amrik Singh s/o Ajaib Singh. The complainant Amarjit Kaur was named as nominee in the policy. In the abovesaid policy the coverage was given regarding the Credit Shield Insurance (to secure the loan amount i.e. Rs.3,50,000/-) for an amount of Rs.3,50,000/-, accidental death for an amount of Rs.4,00,000/- and accidental hospitalization for an amount of Rs.1,00,000/- and the policy premium was deducted by opposite party no.3 from the account of husband of the complainant and the same was acknowledged by opposite party no.1, through a letter dated 25.11.2014. On 8.2.2015 husband of the complainant suddenly fell down from his motorcycle, due to which he got injured and diagnosed as Cervical Spine Injury and thereafter husband of the complainant died on 10.02.2015 due to said accidental injury and cardiac arrest in Guru Nanak Dev Super Specialty Hospital Taran Taaran. The complainant had to spend an amount of Rs.25,000/- on his treatment. Thereafter, the complainant lodged a claim alongwith the requisite documents as required by opposite party no.3 and the same were acknowledged/accepted by opposite parties no.1 & 2. In lieu of the acknowledgement, the opposite parties no.1 & 2 sent a message on 27.4.2015 on the mobile of the complainant that her claim has been processed and her claim number is C295014006689 and the same will be decided as soon as possible. The complainant specifically explained the opposite parties no.1 & 2, through emails that there is no post-mortem and FIR regarding the said accident. In spite of abovesiad letters and requests made by complainant the opposite parties failed to pay any heed towards the settlement of claim of the complainant. Due to non payment of Credit Shield insurance as per the policy, opposite party no.3 started harassing the complainant for making payment of the loan amount, having full knowledge that they had already insured the husband of the complainant, through the policy in question. Opposite parties no.1 & 2 again issued a letter dated 1.7.2015 demanding documents like FIR, Post-mortem report etc. which otherwise the complainant had already cleared to them through oral as well through e-mail. Thereafter, opposite parties no.1 & 2 again issued a vague reminder to harass the complainant. Complainant also issued a legal notice dated 4.9.2015, through registered post to opposite parties, but despite service of the notice, opposite parties neither gave any reply nor decided the claim of the complainant. The opposite parties are harassing the complainant, firstly by delaying the claim and then for not deciding the claim of the complainant. Hence this complaint.

3.                 Upon notice, opposite party no.1 & 2 appeared through counsel and filed written statement taking certain preliminary objections inter alia that the complaint is not maintainable and the same may be dismissed with compensatory costs being false, frivolous and vexatious; the complainant is estopped to file the present complaint, due to her own act and conduct. Further submitted that since the date of lodging the alleged claim with the answering opposite parties, the complainant did not furnish the required documents and information for the processing of claim inspite of 14 requests letters served upon the complainant by answering opposite parties. In the absence of said documents/information the alleged claim was closed. Not only this, much even after closure of the claim, the answering opposite parties again requested the complainant to furnish required documents, but of no avail. The documents and the alleged medical treatment papers are not sufficient to prove the cause of death of insured Amrik Singh. There is no document to prove that the death was due to an accident i.e. sudden, unforeseen and involuntary event caused by external, visible and violent means. As such, the complainant has failed to prove that the death/hospitalization of Amrik Singh had taken place due to any 'accident' as defined in the insurance policy in question. No deficient services have been rendered by the answering opposite parties. The claim of the complainant was duly entertained, investigated and after due application of mind and as per terms and conditions of the insurance policy in question, the same was closed for want of required documents and information. The complainant is bound by the terms and conditions of the insurance policy. That the "accidental injury/death" is a pre-condition to get benefits of Credit Shield Accidental Hospitalization and Accidental Death available under the Sarv Suraksha Policy. However none of the document confirms that the hospitalization and then subsequent death is due to any accident. On merits, it is submitted that the complainant had lodged a claim arising out of death of insured Amrik Singh i.e. allegedly died due to accidental injuries. The complainant was requested to furnish detail information, documents etc. to prove the accidental death of insured Amrik Singh. The insurance company served fourteen reminders w.e.f dated 3.3.2015 to 11.8.2015 to furnish the proof of accidental death of insured Amrik Singh and as such to prove such accidental death the relevant documents i.e. First Information Report, Postmortem Report, inquest panchnama, complete hospitalization papers etc were required. But however, the complainant did not furnish the required information and documents. So, in the absence of these documents and proof it cannot be considered that the death of insured Amrik Singh had taken place due to any 'accident' as defined in the insurance policy in question. The term of accident or accidental and bodily injury has been defined as under:-

Accident or Accidental: Means a sudden unforeseen and involuntary event caused by external, visible and violent means.

Bodily Injury: Means physical bodily harm or injury, but does not include any mental sickness, disease or illness.

                   From the documents furnished by the complainant i.e. patient detail report qua treatment expenses and death certificate it cannot be said that insured Amrik Singh died on account of accidental injuries. It was incumbent on the part of complainant to provide sufficient and cogent proof to establish that the death was accidental and bodily injury. According to section 3 and section 5 of the insurance policy in question, the claim was to be paid only in the event of "Accident" and due to the abovesaid circumstances the claim file of the complainant was closed. Further other allegations made in the complaint have been denied.

4.                Upon notice, none has appeared on behalf of opposite party no.3, despite due service. As such, opposite party no.3 was ordered to be proceeded against exparte.

5.                In order to prove the case, complainant Amarjit Kaur appeared in witness box as her own witness and filed her duly sworn affidavit Ex. C1 in support of the allegations made in the complaint.  The complainant also produced on record copies of documents Ex. C-2 to Ex. C-19 and closed the evidence. 

6.                In rebuttal, the opposite parties No. 1 & 2 tendered in evidence duly sworn affidavit of Sh.Pankaj Kumar, Legal Manager, HDFC ERGO General Insurance Company Ltd. Ex. OP1,2/1 and copies of documents Ex.OP1, 2/2 to Ex.OP1, 2/23 and closed the evidence.

7.                Besides addressing oral arguments, learned counsel for the parties also filed brief synopsis of written arguments. We have gone through the record with the able assistance of counsel for both the parties.

8.                 On the basis of evidence on record, learned counsel for complainant has vehemently contended that there is no dispute that Amrik Singh (now deceased) had opened an account bearing  No. 50100062801386  with OP No. 3 and obtained loan of Rs. 3,50,000/-. Opposite party no.3 secured the loan amount and insured the complainant vide insurance policy bearing no. 2950 2009 1452 3900 000, copy whereof is Ex.C4 was issued by opposite parties no.1 & 2 vide which the loan account was covered under Credit Shield Insurance to the tune of Rs.3,50,000/-, accidental death to the tune of Rs.4,00,000/- and accidental hospitalization to the tune of Rs.1,00,000/-. Opposite party no.2 obtained premium to the tune of Rs.1863/- from the life assured on 25.11.2014. It is also not disputed that life assured met with an accident on 08.02.2015, while he succumbed to injuries on 10.02.2015. The life assured received Cervical Spine Injury in the said accident and he died in the hospital on account of those injuries as well as massive heart attack suffered by him. Ex.C-13 contains the details of bills and death summary issued by Guru Nanak Dev Super-Specialty Hospital dated 10.02.2015. Now, the question arises as to whether death of the life assured, Amrik Singh was accidental or not? The contention of opposite parties is that no post-mortem report and copy of the FIR has been produced for proving the said fact. But, however, there is sufficient evidence on record adduced by the complainant in support of her case that the life assured, Amrik Singh died on account of accidental injuries received by him in the accident occurred on 8.2.2015. Simply, because the life assured also suffered a Massive Heart Attack on 10.02.2015, it cannot be presumed that the death of the life assured took place on account of Massive Heart Attack and the same was not the result of accidental injuries received by him. Reliance in this regard has been placed on Rita Devi @ Rita Gupta, Petitioner Vs National Insurance Co. Ltd., Respondents, Revision Petition no.973 of 2007 decided by Hon'ble National Commission dated 24^th October, 2007, wherein it has been laid down that "From the aforesaid law developed in other countries and in this country, it is clear that injury or death caused by lightening, sun-stroke or earthquake has been held to be accidental. Further where a man in the course of work is exposed to excessive heat coming from a boiler and becomes exhausted and death occurs, it would be an accidental death. Similarly, a person working in an icy cold water and thereafter, sustains pneumonia which causes his death, such death is also considered to be an accidental death. Similarly, if the assured is seized by a fit and drowns or falls in front of a train and killed, death is due to external cause and is an accidental death. Death resulting from the threats by miscreants is also considered to be an accidental caused by external violence and visible means. In substance, death which does not occur in the usual course or natural course of events/causes which could not be reasonably anticipated is considered to be accidental one…………………… Hence, it is apparent that the death of the husband of the petitioner is covered under the Janta Accidental Insurance Policy issued by the Respondent no.1. It is to be stated that in the present case, cold wave was sudden and due to that a number of persons including the husband of the petitioner suffered massive heart attack as a result of which he died. This undisputed fact was reported in various newspapers. In the result, the revision petition is allowed and the insurance company is directed to pay the assured a sum of Rs.3.00 lakhs with interest @ 12% p.a. from 1^st July, 2004 (i.e. after six months from the date of accident) till its payment. Insurance Company shall also pay the cost of litigation which is quantified at Rs.10,000/-, to the petitioner.

9.                The other party has tried to confuse the matter by taking the plea that because no FIR or post-mortem examination was conducted on the body of the deceased-life assured, therefore, it cannot be presumed that the death of life assured occurred due to accidental injuries. But however, the legal position on this point is quite contrary to the stand taken by opposite parties. Reliance on this point has been placed on National Insurance Co. Ltd., Appellant-OP Vs Kulbir Kaur and others, Respondents-Complainants, First Appeal no.839 of 2008 decided by Hon'ble State Commission, Punjab, Chandigarh dated 28.02.2013, wherein, it has been laid down that "It stands proved that the deceased died an accidental death as a result of electric shock when he tried to switch on the electric motor. Like the present case in Nidhi Sahi's case (supra) the claim submitted by the beneficiary of the deceased was challenged mainly on the ground that no FIR was lodged nor any post mortem examination was performed on the deceased body. In that case the complainant was able to prove the death of the deceased in the accident by producing other evidence. That evidence was taken as sufficient, even in the absence of FIR and the post mortem report, for proving the accidental death of the deceased. The ratio of that judgment fully applies to the facts of the present case. Therefore, the non-lodging of the FIR or the non-conduct of the post mortem examination on the dead body of the deceased alone cannot be a ground for ignoring the cogent and convincing evidence produced by the complainants for proving that the death of the deceased was accidental."

                   Further in case Sewa Sehakari Samiti Ltd. & others Vs Smt.Charanjit Kaur decided by Hon'ble National Commission dated October 11, 2011, it has been laid down that "The decision of the District Forum was based on the certificate given by the Sarpanch which was supported by a series of affidavits filed on behalf of the complainants justifying the manner in which Angrez Singh had died which conclusively proved that it was an accidental death. We see no reason to differ with the concurrent finding on this and the technical objections such as not filing an FIR absence of post-mortem report and not filing the claim within thirty days will not make much of a difference to the case of the complainants. In view of the above we find no merit in the revision petition warranting any interference by this Commission in exercise of its supervisory jurisdiction as there is neither any illegality irregularity much less any jurisdictional error in the order passed by the State Commission. The revision petition is accordingly dismissed with no order as to cost."

10.              Opposite parties have been deferring the settlement of the claim on the plea that no copy of FIR or Post-Mortem report was annexed by the complainant for settling the claim of the life assured, Amrik Singh. But, however, in view of the law laid down by the higher courts cited above, it clearly shows that post-mortem report or FIR was not required for proving the death of life assured, Amrik Singh was accidental in nature. The complainant has adduced Death summary as well as treatment of Amrik Singh (now deceased), copy whereof is Ex.C13, which clearly shows that Amrik Singh received treatment on account of injuries received by him in the alleged accident on 8.2.2015. The very fact that Amrik Singh died within two days i.e. on 10.2.2015, goes to show that his death occurred due to Cervical Spine injury inflicted on him in the alleged accident. It is, therefore, vehemently contended that the complainant has been able to prove his case and the complainant is entitled to receive an amount of Rs.3,50,000/- as Credit Shield Insurance, Rs.4,00,000/- as accidental death and Rs.25,000/- as accidental hospitalization expenses and the complaint may be allowed accordingly.

11.              However, from the appreciation of the facts and circumstances of the case, it becomes quite evident that the complainant has miserably failed to prove that Amrik Singh died due to accidental injury received by him in the alleged accident. Accidental injury/death is a pre-condition to get benefits of Credit Shield Accidental Hospitalization and Accidental Death available under the Sarv Suraksha Policy. However none of the documents confirm that the hospitalization and then subsequent death is due to any accident. Since the complainant has miserably failed to prove that Amrik Singh died due to accidental injuries, as such, there does not exist any deficiency in service on the part of the opposite parties. The complainant had lodged a claim arising out of death of insured Amrik Singh alleging that he died due to some accidental injuries. The complainant was asked by the opposite parties to furnish documents in order to prove the accidental death of insured Amrik Singh. The insurance company served fourteen reminders w.e.f dated 3.3.2015 to 11.8.2015, copies whereof account for OP1, 2/6 to OP1, 2/19 to furnish the proof of accidental death of insured Amrik Singh. But however, no document concerning the cause of death has been adduced on record. If the life assured actually died in the hospital and that too on account of accidental injuries it all the more necessary to get the post-mortem conducted on the dead body of the life assured. Post-mortem is a genetic test to ascertain the cause of death. Even if no post-mortem was conducted, as has been so held in various rulings relied upon by the complainant, even then some doctor, who treated the deceased, could have been summoned to prove that death of the life assured took place due to injuries sustained in the alleged road accident. But however, for the reasons best known to the complainant, no said recourse was even adopted. The complainant was supposed to lead sufficient and cogent evidence to establish that the death of life assured was due to sudden, unforeseen and involuntary event caused by external, visible and violent means and due to bodily injuries. According to section 3 and section 5 of the insurance policy in dispute, the claim was to be paid only in the event of accident and due to abovesaid circumstances, the claim file of the complainant was closed in the records. The complainant has miserably failed to submit any document or evidence, which could support that the death of the life assured was caused on account of accident. Rather, from the documents furnished by the complainant to the insurance company as well as in evidence, it may be observed that death of the insured occurred due to the cardiac arrest as mentioned in the death summary Marked as Ex.C13, wherein it has been mentioned that "Patient suddenly to Cardiac Arrest on 10.02.2015 at 1.34 pm and declared dead same time. In the claim form Ex.OP1, 2/5 complainant herself mentioned the cause of death due to "Cardiac Arrest". In judgement Mrs.Madhumita Bose, Appelant(s) Vs The Manager, HDFC Ergo General Insurance Company Limited, Respondent(s), First Appeal no.64 of 2014 Hon'ble National Commission dated 2^nd February, 2015, it has been held that "Before the claim could be admitted by the insurance company, it was incumbent on the part of the complainant to provide proof to establish that the death was accidental. No doubt, as per the allegation, which has not been disputed, the insured person fell from the bus which obviously would constitute an accident but as rightly held by the State Commission, it could not be established that the cause of death of the insured was the injury caused by the accident.

                   In another case titled as United India Insurance Co. Ltd., Petitioner Vs P.M.Nagesh Nayak and others, Respondents- 2014(1) CPR 686, Hon'ble National Commission went on to hold that in LIC claim form respondent has declared cause of death as heart pain is clear indication that story regarding death of insured due to accidental head injury is concocted on an afterthought. Since respondent failed to prove that the deceased died due to accident injury, the complaint was dismissed and the Revision allowed."

                   Further reliance can be placed on SBI Life Insurance Co. Ltd., Petitioner Vs Kamaljeet Kaur and another- 2016 (1) CLT 285 (NC), wherein, it has been laid down that wherein the point was whether the death caused by Acute M.I. can be treated as death due to accident?- Held - No. There is distinction between the accidental death and death due to accident. Death caused by "Acute M.I." may be called an accidental death, but it is definitely not a death due to accident. Insurance Company was held not liable."

11.              In the case in hand, the death of life assured Amrik Singh may be called an accidental death, but, however, his death cannot be held to be caused by accident.

12.              From the aforesaid discussion, it transpires that the complainant has failed to prove her case through evidence on record. On the other hand, it becomes clear that the life assured did not die due to alleged injuries sustained in the accident on 08.02.2015, rather he died on account of massive heart attack suffered by him on 10.02.2015. There is no nexus between the injuries allegedly caused on 8.2.2015 and death of the life assured which occurred on 10.02.2015. Consequently, the instant complaint fails and the same is ordered to be dismissed. Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.

 

          (Bhupinder Kaur)                              (S.S. Panesar)

               Member                                             President

 

Announced in Open Forum.

Dated:01.03.2016.

HS