PER:
Charanjit Singh, President
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 35 against the opposite parties on the allegations that the complainants are legal heirs of deceased Harjinder Singh being, the complainant No. 1 is widow and complainant No. 2 is son. On 2.1.2020 deceased Harjinder Singh had road accident. The tempo traveler came from behind which was being driven by some unknown person who was driving the Tempo traveler very rashly and recklessly and hit the bike of Harjinder Singh. The left leg of Harjinder Singh had broken due to fall on the road and got many occult injuries. The said driver ran away with Tempo Traveler from the spot. Harjinder Singh was admitted to the Guru Nanak Dev Multispecialty Hospital Tarn Taran after arranging the vehicle. Thereafter Harjinder Singh shifted to Fortis Hospital Amritsar. The said incident was witnessed by Shamsher Singh. On 3.1.2020 F.I.R No. 02/2020 under section 279, 338, 337, 427 I.P.C has been registered in respect of unfortunate incident at Police Station Sadar of District Tarn Taran and Shamsher Singh is an author of above said F.I.R. Thereafter Harjinder Singh died on 12.01.2020 in Fortis Hospital during treatment. The opposite party No 4 is bank institution and provides banking services to the public as per their requirement. During his life time the deceased Harjinder Singh had availed a loan from opposite party no 4 on 10.5.2018 and opened a loan account bearing No 57043001 in the bank and had availed the services rendered by the opposite parties during his life time, hence the opposite party render his services and the complainant is the consumer of the opposite party. At the time providing loan the opposite party No 4 being agent of opposite parties No 1 to 3 also did insurance "Sarv Suraksha" the period of the said insurance is dated 10.5.2018 up to 9.5.2022. At the time of issuing the above said insurance policy the opposite parties had given assurance of services {privileges) as follows: -
A) Major medical illness {critical illness}
B) Accidental Hospitalization Benefits
C) Personal Accident Death or permanent disability
D) Credit Shield
E) Dependant child education
F} House Holder coverage (theft/ burglary}
G) Fire
H} loss of Job
1) Garage Cash
The opposite parties had issued a certificate bearing number 2950 2022 1811 0800 000 dated 18.5.2018 and had given assurance in respect of above stated services. After the death of Harjinder Singh, the complainant being nominee/ legal heir has approached many times to the opposite parties to claim the coverage insurance as follow:-
- Accidental death insurance of Rs 8 Lakh (eight lakh}
- Accidental Hospitalisation of Rs 1, 00, 000/- {one lakh}
- Credit Shield insurance 5, 00, 000 {five lakh}
- Critical illness of Rs 1, 00, 000 (one lakh}
- Total Amount of claim is Rs 15, 00, 000 lakh
The opposite parties have refused the claim of the complainant vide letter dated 23.11.2020 by stating that "As per verification it is noted that insured was under influence of heroin during incident, Hence this claim is not admissible. As per Post Mortem Report of deceased Harjinder Singh cause of death is "the cause of death in this case in my opinion is Polytrauma specially injury No.5 which leads to the lungs injury with Septicemia which is vital organ which is sufficient to cause death in ordinary course of nature". The complainant has prayed the following relieves.
- Directions may kindly be issued to the opposite parties to accept the accidental claim of deceased Harjinder Singh and Rs.15,00,000/- may kindly be released in favour of complainants being legal heir.
- Directions may kindly be issued to the opposite parties not to harass to recover the balance amount of loan as the said remaining amount falls/ cover under credit shield service as per the terms and conditions of the insurance.
- The opposite parties may kindly be directed to compensation of Rs. 50,000/- and Rs. 50,000/- as litigation expenses on account of mental and physical harassment and on account of negligent service may be awarded to the complainant in the interest of justice.
Alongwith the complaint, the complainant has placed on record affidavit of Bhupinder Kaur Ex. C-1, Self attested copy of FIR Ex. C-2, Self attested copy of death certificate Ex. C-3, statement issued by Bank Ex. C-4, Self attested copy of certificate dated 10.5.2018 Ex. C-5, Self attested copy of claim document check list Ex. C-6, Self attested copy of letter dated 10.5.2018 Ex. C-7, Self attested copy of repudiation letter dated 23.11.2020 Ex. C-8, Post Mortem Report Ex. C-9.
2 Notice of this complaint was sent to the opposite parties and opposite parties No. 1 to 3 appeared through counsel and filed written version by interalia pleadings that the complainants have concealed the true and material facts from the knowledge of this Commission, therefore, they are not entitled for any claim. After receiving the claim documents for reimbursement from the complainant, the opposite parties No. 1 to 3 verified the same with regard to coverage as per terms and conditions of the policy and as per primary scrutiny of the said documents, it reveals that the complainant was under influence of heroin during incident, therefore, claim is not admissible as per Specific Exclusion No.2 of Section 2 of the policy. "No indemnity is available hereunder and no payment will be made by the company for any claim directly or indirectly caused by, based on, arising out or however attribute to any of the following: Whilst under the influence of intoxicating liquor or drugs: as per police charges or proved medially." In view of the facts mentioned above the claim was repudiated and intimation in this regard was given to the complainant vide letter dated 20.11.2020. In the death summary of Fortis Escort Hospital it has been specifically stated that the insured was heroin addicted and in the questionare to the doctor, he also specifically stated that the insured was under the influence of heroin at the time of accident, therefore, the complainants are not entitled for any claim in view of the terms and conditions of the policy and the claim has been rightly repudiated. Both the parties are bound with the terms and conditions of the policy, which are duly supplied to the complainant and no claim can be passed beyond the terms and conditions of the policy. The present complaint has been filed without any cause of action against the opposite parties No. 1 to 3, therefore, the present complaint is liable to be dismissed. The complainants are estopped by their own act and conduct from filing the present complaint. The complainant has no locus standi to file the present complaint. So far as giving assurance of services (privileges) by the opposite parties No. 1 to 3 is concerned that is subject to terms and conditions of the policy. So far as PMR is concerned, that has been conducted after the death, whereas, as clear from the medical documents and information received from the doctor, the insured was under the influence of heroin at the time of accident and he was drug addict, therefore, insurance company is not liable for payment as per the terms and conditions of the policy. In the present case, the cause of death is not in dispute, but insured was under the influence of heroin, which is violation of policy terms and conditions, therefore, present complaint is liable to be dismissed. The opposite parties No. 1 to 3 have denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite parties No. 1 to 3 have placed on record affidavit of Manoj Prajapati, Manager Claims Legal Ex .OP1,2,3/1 attested self copy of Power of attorney/Authority letter Ex. OP1,2,3/2, self attested copy of policy Ex.OP1,2,3/3, self attested copy of terms and conditions Ex. OP1,2,3/4, self attested copy of death summary issued by Fortis Escort Hospital Ex. OP1,2,3/5, self attested copy of progress notes of Fortis Escort Hospital Ex OP1,2,3/6, self attested copy of treatment record of Guru Nanak Dev Super Specialty Hospital Tarn Taran Ex.OP1,2,3/7 self attested copy of repudiation letter dated 20.11.2020 is Ex.OP1,2,3/8.
3 The opposite party No. 4 appeared through counsel and filed written version by interalia pleadings that the present complaint is liable to be dismissed for want of cause of action against the opposite party No. 4. No cause of action has ever arisen in favour of complainant and against the opposite party No. 4. The policy was issued by HDFC Ergo General Insurance Co. which is a separate entity, HDFC Bank does not have rights to participate in passing or repudiation of the claim of the customer, HDFC Ergo had the sole right to decide on issue pertaining to insurance claim. The complainants have not come to this commission with clean hands and present complaint is liable to be dismissed. The complainants have failed to place on record any document which reveals that they are the only legal heirs of the deceased Harjinder Singh. The complainants claimed huge amount while concealing the important documents which are required for the adjudication of the insurance claim and to unraveling real truth about incident would require elaborate evidence, perhaps including the cross-examination of witness. Complex question of law and facts are to be decided in this matter which cannot be decided by this Commission in summary proceedings and keeping in view the facts and circumstances, the present case be referred to the competent court of civil jurisdiction. The complainants are estopped by their act and conduct from filing the present complaint against the Opposite Party No. 4. The present complaint is legally not maintainable in the present form and as such same deserve dismissal. Further submitted that it is legal duty of the complainants to repay the entire outstanding of the Personal loan availed by the deceased Harjinder Singh, as per FC on date 27.1.2022, outstanding amount of Rs.2,72,590/- stands due in the loan account No. 57043001. The present complaint has not been filed, signed and verified by proper and competent persons. As such present complaint deserves dismissal. Mr. Harjinder Singh since deceased obtained the Personal Loan from the HDFC BANK against the loan account no. 57043001 and on the request of the Harjinder Singh amount of Rs. 5,04,738/- was financed to him Harjinder Singh since deceased himself purchased the insurance policy after going through the terms and conditions of the policy. The opposite party No. 4 has no concern with allowing or repudiation of the insurance claim. HDFC BANK is having business/corporate ties with the opposite party No.2. It is legal duty of the complainants and all the legal heirs to repay the entire outstanding of the Personal loan availed by the deceased Harjinder Singh, as per FC on date 27.01.2022, outstanding amount of Rs. 2,72,590/- stands due in the loan account No. 57043001. At the time of disbursement of the personal loan to the deceased Harjinder Singh all the terms and conditions incorporated in the agreement for Personal loan were duly read over and explained to him in English as well as in vernacular language i.e. Punjabi also and after admitting the same as correct & genuine he put his respective hands/signatures as token of correctness. He further undertook to remain abide by the terms & conditions of loan agreement & further assured to repay the loan installment in time as agreed schedule without committing any default. this fact was also disclosed by the opposite party No. 1 to 3 that all the term and conditions of the insurance policy were duly read over and explained to the deceased Harjinder Singh at the time when policy was issued and he himself after going through all the terms and conditions of the policy documents to which he fully understand and thereafter he availed said insurance policy. It is the legal duty of all the legal heirs/ complainants to repay the entire loan amount stands due in the personal loan as elaborately mentioned. It is duty of all the legal heirs of the deceased Harjinder Singh to submit all the relevant documents with opposite parties No. 1 to 3, for settlement of the insurance claim/ personal loan outstanding and to give satisfactory replies/ answers to the objections/ quarries put to them and to submit genuine and correct documents with the opposite parties No. 1 to 3 which are required for settlement of the insurance claim and in event of their failure to do so they are legally bound to repay/ deposit the entire loan outstanding of the personal loan with the opposite party No. 4. In case the insurance claim of the legal heirs of the deceased Harjinder Singh is settled by the opposite parties No. 1 to 3 in that event HDFC Bank has first charge/ lien/ right to recover/ receive/ adjust the total outstanding of the personal loan account from the insurance claim amount. The opposite party No. 4 has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party No. 4 has placed on record, the opposite party No. 4 has placed on record affidavit of Sourav Saini Ex. OP4/1, authorisation letter Ex. OP4/2, Copy of loan agreement and its schedule is Ex. OP-4/3, copy of SOA is Ex. OP4/4, copy of FC is Ex. OP4/5.
4 We have carefully gone through the record and heard Ld. counsel for complainant and opposite parties.
5 Ld. Counsel for the complainant contended that on 2.1.2020 deceased Harjinder Singh met with a road accident. A tempo traveler came from behind which was being driven by some unknown person who was driving the Tempo Traveler very rashly and recklessly and hit the bike of Harjinder Singh. The left leg of Harjinder Singh had broken due to fall on the road and got many occult injuries. The said driver ran away with Tempo Traveller from the spot. Harjinder Singh was admitted to the Guru Nanak Dev Multispecialty Hospital Tarn Taran after arranging the vehicle. Thereafter Harjinder Singh shifted to Fortis Hospital Amritsar. The said incident was witnessed by Shamsher Singh. On 3.1.2020 F.I.R No. 02/2020 under section 279, 338, 337, 427 I.P.C has been registered in respect of unfortunate incident at Police Station Sadar of District Tarn Taran and Shamsher Singh is an author of above said F.I.R. Thereafter Harjinder Singh died on 12.01.2020 in Fortis Hospital during treatment. The opposite party No 4 is bank institution and provides banking services to the public as per their requirement. Further Ld. Counsel for the complainant contended that during his life time, the deceased Harjinder Singh had availed a loan from opposite party No 4 on 10.5.2018 and opened a loan account bearing No 57043001 in the bank and had availed the services rendered by the opposite party No. 4. At the time of providing loan, the opposite party No 4 being agent of opposite parties No 1 to 3 also provided an insurance policy named as "Sarv Suraksha". The period of the said insurance was from 10.5.2018 up to 9.5.2022. At the time of issuing the above said insurance policy the opposite parties had given assurance of services {privileges) as follows: -
A) Major medical illness {critical illness}
B) Accidental Hospitalization Benefits
C) Personal Accident Death or permanent disability
D) Credit Shield
E) Dependant child education
F} House Holder coverage (theft/ burglary}
G) Fire
H} loss of Job
1) Garage Cash
The opposite parties had issued a certificate bearing number 2950 2022 1811 0800 000 dated 18.5.2018 and had given assurance in respect of above stated services. After the death of Harjinder Singh, the complainant being nominee/ legal heir has approached many times to the opposite parties to claim the coverage insurance as follow:-
- Accidental death insurance of Rs 8 Lakh (eight lakh}
- Accidental Hospitalisation of Rs 1, 00, 000/- {one lakh}
- Credit Shield insurance 5, 00, 000 {five lakh}
- Critical illness of Rs 1, 00, 000 (one lakh}
- Total Amount of claim is Rs 15, 00, 000 lakh
The counsel for the complainant further contended that the opposite parties have refused the claim of the complainant vide letter dated 23.11.2020 by stating that "As per verification it is noted that insured was under influence of heroin during incident, Hence this claim is not admissible. As per Post Mortem Report of deceased Harjinder Singh cause of death is the cause of death in this case in my opinion is Polytrauma specially injury No.5 which leads to the lungs injury with Septicemia which is vital organ which is sufficient to cause death in ordinary course of nature" and prayed that the present complaint may be allowed.
6 Ld. Counsel for the opposite parties No. 1 to 3 contended that the claim of the complainant is not admissible as per Specific Exclusion No.2 of Section 2 of the policy. "No indemnity is available hereunder and no payment will be made by the company for any claim directly or indirectly caused by, based on, arising out or however attribute to any of the following: Whilst under the influence of intoxicating liquor or drugs: as per police charges or proved medially. "In view of the facts mentioned above the claim was repudiated and intimation in this regard was given to the complainant vide letter dated 20.11.2020. In the death summary of Fortis Escort Hospital it has been specifically stated that the insured was heroin addicted and in the questionnaire to the doctor, he also specifically stated that the insured was under the influence of heroin at the time of accident, therefore, the complainants are not entitled for any claim in view of the terms and conditions of the policy and the claim has been rightly repudiated and prayed for dismissal of the complaint.
7 Ld. Counsel for the opposite party No. 4 contended that no cause of action has ever arisen against the opposite party No. 4 in the said complaint. The policy in question was issued by HDFC Ergo General Insurance Co. which is a separate entity, HDFC Bank does not have rights to participate in passing or repudiation of the claim of the customer, HDFC Ergo had the sole right to decide on issue pertaining to insurance claim. The complainants have not come to this commission with clean hands and present complaint is liable to be dismissed. He further contended that it is the legal duty of the complainants to repay the entire outstanding of the Personal loan availed by the deceased Harjinder Singh, as per FC on date 27.1.2022, outstanding amount of Rs.2,72,590/- stands due in the loan account No. 57043001. Mr. Harjinder Singh since deceased obtained the Personal Loan from the HDFC BANK against the loan account no. 57043001 and on the request of the Harjinder Singh amount of Rs. 5,04,738/- was financed to him Harjinder Singh since deceased himself purchased the insurance policy after going through the terms and conditions of the policy. The said insurance claim has been repudiated by the opposite parties No. 1 to 3 and opposite party No. 4 has nothing to do with the insurance claim and prayed for dismissal of the same.
8 From the combined and harmonious reading of documents and record is going to prove that deceased Harjinder Singh obtained an insurance policy from the opposite parties No. 1 to 3 and same is not disputed between the parties and it is also not disputed that on 2.1.2020 accident of Harjinder Singh took place. A FIR No. 2/2020 Under Section 279, 338, 337, 427 IPC was registered at Police Station Sadar of District Tarn Taran. Mr. Harjinder Singh i.e. deceased was died on 12.1.2020 during the treatment at Guru Nanak Dev Multispecialty Hospital Tarn Taran. The claim was lodged with the opposite parties Nos. 1 to 3 and same was repudiated by the opposite parties No. 1 to 3 vide repudiation letter dated 20.11.2020 Ex. C-8 on the ground that the deceased was under influence of Heroin during incident. Hence, the claim is not admissible refer specific exclusion No. 2 of Section 2 of the policy, no indemnity is available, hereunder and no payment will be paid by the company for any claim directly or indirectly caused by, based on, arising out or however attributable to any of the following: Whilst under the influence of intoxicating liquor or drugs, as per police charges or proved medially. But we are not agreed with the version of the opposite parties No. 1 to 3 while repudiating the claim because Harjinder Singh was under the influence of Heroin during the incident, as neither proved by the police charges nor proved medically. A FIR was lodged with the police Station Tarn Taran whereby it was mentioned in the said FIR that the deceased was driving a motorcycle and a tempo traveler came from back side in rash and negligent manner, resultantly, the deceased Harjinder Singh suffered a lot of injuries and during the course of treatment, he died in Guru Nanak Dev Multispecialty Hospital Tarn Taran, hence, the version of opposite parties is not proved in police charges because in the FIR, it is nowhere mentioned that the deceased was under the influence of Heroin and he was driving the motorcycle in a rash and negligent manner.
9 Secondly, the opposite parties No. 1 to 3 have also miserably failed to prove medically that deceased Harjinder Singh was under the influence of Heroin at the time of accident. The opposite parties No. 1 to 3 have placed on record Ex. OP1 to 3/5 i.e. death summary whereby in the column of diagnosis it has been written road side accident with Polytrauma “left side rib fractures, scapula fracture and fracture distal femur, whereas during the course of hospital, it has been written that the patient is known Heroin addict admitted in ER at 07:53 pm. On 08/01/20 with C/o Road side accident on 2.1.2020 at 4.00 pm. H/o chest truma, multiple rib fracture with haemopneumothrox left side and cause of death has been mentioned in the death summary that road side accident with Polytrauma with cardio-respiratory arrest. Moreover, the post mortem report also corroborates the same version. Now it is beyond imagination how the hospital has come to the conclusion that the patient was known heroin addict, who had informed the doctor that the deceased was a Heroin Addict and whose instance the doctor has come to the conclusion that the deceased was a known case of Heroin addiction. Whereas in the column of course in the hospital what was the necessity for the doctor to write that the patient is heroin addict.
10 Moreover, in the post mortem report cause of death is mentioned as road side accident with Polytrauma with cardio-respiratory arrest which has no relation with the cause of death and Heroin addiction. There is no nexus between the cause of death and alleged addiction of drug. Moreover, if the deceased was a drug addict then why it has not been mentioned in the post mortem report. Moreover, there no dope test was conducted to reach the conclusion that the deceased was under the influence of Heroin at the time of accident.
11 The deceased was hit by a tempo traveler which has been clearly mentioned in the FIR report and deceased was not negligent in driving his vehicle. No affidavit has been placed on record of any treating doctor who suggests that the deceased was a Heroin drug addict. In the absence of affidavit of the treating doctor, the plea taken by the opposite parties No. 1 to 3 have no relevance. Reliance in this connection has Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the surveyor’s report in the absence of which the surveyor’s report has little evidentiary value.
12 The opposite party has placed on record only one document i.e. death summary Ex. OP 1 to 3/5, wherein it has been alleged that Patient a known heroin addict admitted in ER ……. The opposite party has to place on record a conclusive document to prove their contention that where and when he has taken the alleged treatment of Heroin Addiction.. In this regard, a reference can be made to the judgment of the Hon'ble National Commission in Revision Petition No. 200 of 2007 "Mr. Satinder Singh versus National Insurance Co. Ltd." decided on 24.1.2011 wherein it has been observed that "recording of history of patient in the above stated manner does not become a substantiate piece of evidence and convincing evidence be brought on record that complainant was aware of preexisting disease.". Further it has been observed by the Hon'ble National Commission in its judgment IV (2008) CPJ 89 (NC) "Life Insurance Corporation of India & Ors. Versus Kunari Devi" that history recorded in the hospital bed head ticket is not to be taken as evidence as Doctor recording history not examined and suppression of disease not proved.
13 Furthermore, It is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of DharmendraGoel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.UshaYadav& Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
14 The opposite party has failed to prove on record that at the time of accident deceased was under influence of heroin and said accident was taken place due to consumption of Heroin.
15 From the above said decision we have come to the conclusion that the claim of the complainant has been wrongly repudiated by the opposite party Nos. 1 to 3 as they have miserably failed to prove on record that the complainant was drug addicted.
16 It is not disputed by the opposite parties that the insured had taken Credit Shield Insurance up to Rs. 5,00,000/-. It is also not disputed that insured died on 12.1.2020. But the opposite party was deducting the loan instalments even after the death of insured. Rather under the Credit Shield Insurance the loan was secured/ insured and the opposite party No. 4 was not having any right to deduct the loan instalments from the loan account of insured after his death. As such, after the death of Harjinder Singh i.e. on 12.1.2020, the amount which has been deducted by the opposite party No. 4 from the loan account of insured is required to be returned to the complainants.
17 In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainant. The opposite Parties Nos. 1 to 3 are directed to make the insurance claim of Rs. 8 Lakhs as accidental insurance, Rs. 1 Lakh as hospitalisation to the complainant. The opposite parties No. 1 to 3 are directed to make the outstanding loan amount directly to the opposite party No. 4 under Credit Shield Insurance. On receiving the said amount, the opposite party No. 4 will adjust the said amount in the loan account of insured and opposite party No. 4 will issue the receipt and NOC regarding the same to the complainant. The opposite party No. 4 is also directed to return the amount of installments to the complainants which have been deducted by them after the death of Harjinder Singh i.e. 12.1.2020. The complainant has been harassed by the opposite parties No. 1 to 3 unnecessarily for a long time. The complainant is also entitled to Rs. 30,000/- as compensation on account of harassment and mental agony and Rs 15,000/- as litigation expenses from the opposite parties No. 1 to 3. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. The complainants are entitled to the awarded amount as follows:-
Bhupinder Kaur : 50%
Manpreet Singh Bhullar : 50%
Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
16.05.2024
