DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 548 of 15-11-2016

Decided on : 28-03-2018

Jaswinder Kaur aged about 42 years w/o Jagmohan Singh R/o V. Kotha Guru, Tehsil Rampura Phul, District Bathinda.

…...Complainant

Versus

1. HDFC ERGO General Insurance Co. Ltd., Corporate Office : 6^th Floor, Leela Business Park, Andheri Kurla Road, Andheri (East) Mumbai 400 059 through Manager (Claims)

2. HDFC ERGO General Insurance Co. Ltd., Unit No. 502, 504, 506, 5^th Floor, Mahatta Tower, B-1 Block, Community Centre, Janak Puri, New Delhi 110 058 through its Regional Manager/Manager Claims (Deleted vide order dated 30-11-2016).

3. HDFC ERGO General Insurance Co. Ltd., having its Branch Office Opp. ITI, Mansa Road, Bathinda, through its Branch Manager

1. 1. 1. 1. 1. 1. 1. 1. 1. .......Opposite parties

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

Quorum :

Sh. M.P.Singh. Pahwa, President

Sh. Jarnail Singh, Member

Smt. Sukhwinder Kaur Member

Present :

For the complainant : Sh. Naresh Garg, Advocate.

For the opposite parties : Sh. Varun Gupta, Advocate, for OPs No. 1 & 3.

OP No. 2 deleted.

O R D E R

M. P. Singh Pahwa, President

1. Jaswinder Kaur, Complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against HDFC ERGO General Insurance Co. Ltd., and another (here-in-after referred to as 'opposite parties').

2. Briefly stated, the case of the complainant is that Jagmohan Singh son of Sh. Mohinder Singh, husband of complainant, purchased Individual Personal Accident Policy No.3317100116808200000 from the opposite parties. It was valid for the period from 16-05-2016 to midnight of 15-05-2017. He paid lump sum premium of Rs.1,119/- to the agent of the opposite parties. The complainant was nominee of Jagmohan Singh in the Policy.

3. It is revealed that on 16-05-2016 Jagmohan Singh along with Bhupinder Singh, Dharamvir Singh alias Raju son of Itwari Lal, resident of Kotha Guru Ka had gone to D.C. Office at Bathinda on Scorpio vehicle No. DL-8CJ/7891 in connection with making Arms License of Dharamvir Singh alias Raju. Dharamvir Singh took with him his Arms License along with 32 Bore Revolver. They returned from Bathinda, at about 12:30 p.m. When they were on bridge of drain in between village Ghania and village Maluka, they stopped the vehicle in order to urinate. Jagmohan Singh took the Revolver of Dharamvir Singh alias Raju and went to urinate by the side of bridge of the drain. He started moving the revolver in filmy style. Suddenly a shot fired from the revolver, which hit in the head of Jagmohan Singh. He died at the spot. Jaskaran Singh, son of the complainant, made statement to the Police of Police Station Dayalpura. Rapat No.15 dated 16-05-2016 was lodged in Daily Diary Register of Police Station. Post Mortem examination on the dead body of Jagmohan Singh was conducted by Dr. Deep Shikha, Medical Officer, Civil Hospital,Rampura on 16-05-2016 vide PMR No.DS/PMR/014/2016.

4. It is further alleged that the complainant lodged claim with the opposite parties for payment of the Insured/claim amount. She submitted all the relevant documents to them through their officials. The complainant got issued a Regd. legal notice dated 01-09-2016 through her counsel upon opposite parties No. 1 & 2 to make payment of the claim amount of Rs.10,00,000/- against the aforesaid accidental policy along with interest @ 18% p.a. From 16-05-2016. The opposite parties No.1 & 2 in response to legal notice dated 01-09-2016 replied vide letter dated 09-09-2016 stating therein that some documents have not been received by them so far for finalizing the claim. In response to letter, complainant submitted reply dated 06-10-2016 through her counsel intimating that she has already lodged claim with their office and submitted all the relevant documents to the concerned officials. Claim No.C331716000125 is also mentioned in the letter dated 09-09-2016. It was also intimated that the concerned officials never handed over the complainant any such claim form to be filled and signed by her. The complainant also expressed readiness to furnish fresh documents as required by the opposite parties No.1 & 2 for finalizing the claim. It was requested either to send claim form directly to the complainant or direct the concerned officials to supply/handover the claim form to the complainant at the earliest, so that the formalities may be completed by the complainant as early as possible, but till date complainant neither received any such claim form from their official nor any official contacted her.

5. It is reiterated that complainant is entitled to the claim of Rs.10,00,000/- against personal accident policy of her husband Jagmohan Singh from the opposite parties. The opposite parties are withholding the claim amount of Rs.10,00,000/- intentionally and willfully, as such, the complainant is also entitled to claim interest @ 18% p.a. on the claim amount from 16-05-2016 till date of payment. The complainant has also pleaded that due to adamant attitude and behaviour of the opposite parties, she has suffered mental tension and agony etc., for which she is entitled to compensation to the tune of Rs.2,00,000/- and litigation expenses of Rs. 20,000/-. Hence, this complaint.

6. In view of the statement of learned counsel for the complainant, name of opposite party No. 2 was deleted vide order dated 30-11-2016.

7. Notice to opposite parties No. 1 & 3 was issued. They appeared through counsel and contested the complaint by filing written reply. In their joint written reply, opposite parties pleaded that it is company registered under Companies Act,1956 and under section 3 of the Insurance Act,1938. It is carrying on General Insurance business.

8. Thereafter opposite parties raised legal objections that till date complainant did not provide requisite documents which are necessary to process the claim under policy. The complainant even did not provide claim form, so replying opposite parties are unable to process the claim. The opposite parties issued three reminders to complainant, but she failed to provide the same. Hence claim of the complainant is sub-judice. As such, complaint is premature and same is liable to be dismissed. That the complaint is not maintainable. That the complainant has no cause of action to file the complaint. That intricate questions of law and facts are involved in this case. The parties have to lead evidence by examining the witnesses and witnesses are to be cross examined by the other party. The procedure under the 'Act' is summary in nature. The complainant, if so advised, may file civil suit seeking alleged relief. That the complainant is not consumer. As such, this Forum has no jurisdiction to entertain and try the complaint. That the complainant is estopped from filing the present complaint by her own acts, conduct, omissions and acquiescence. The complaint is liable to be dismissed on this score alone. That the complaint is false, frivolous and vexatious. It has been filed in order to cause undue harassment to the opposite parties. That the complainant is not maintainable. The Complainant has attempted to misguide and mislead this Forum. The complainant has suppressed material facts from this Forum. It is a settled legal preposition that "one who seeks justice must come to the Court with clean hands". Hence, this complaint is liable to be dismissed. That the complainant has failed to disclose any legal and valid cause of action against the opposite parties. That the complaint does not qualify the ingredients of a valid complaint as envisaged in section 2 (1) (c) of the 'Act'. There is not a single allegation which leads the opposite parties either deficiency of service or that of any unfair trade practice. That the complainant has created a false story to mislead this Forum by false and frivolous facts and circumstances of the present case. That neither there is any deficiency in service on the part of the opposite parties nor they have indulged in unfair trade practice. The complainant is not consumer as defined under the 'Act'.

9. The last legal objections is that the opposite parties float the Insurance Schemes for the public in general after prior approval of the Insurance Regulatory & Development Authority ("IRDA"). All the terms and conditions of the respective Insurance Policies are set by the I.R.D.A. constituted under the I.R.D.A Act, 1999 and Insurance Act, 1938.

10. On merits, it is admitted that Deceased Life Assured (here-in-after referred to as 'DLA') got entire information about terms and conditions of the policy and paid requisite premium. Thereafter opposite parties issued the policy to 'DLA' along with its entire terms and conditions. The same were also in possession of the complainant. It is admitted that the complainant is nominee under the policy. The incident on 16-5-2016 as revealed by the complainant resulting death of her husband is denied by the opposite parties for want of knowledge. Regarding post mortem also, the opposite parties have denied for want of knowledge. It is denied that complainant lodged claim with the opposite parties for payment of claim amount. It is reiterated that opposite parties have not received any document relating to claim of complainant and opposite parties have rather issued reminder for providing the same. The complainant never bothered the same and filed baseless and false complaint. The receipt of notice is admitted but it is further mentioned that opposite parties sent letter for providing documents and claim form duly filled but complainant failed to do so. All other averments of the complainant are denied. In the end, the opposite parties prayed for dismissal of complaint.

11. Parties were afforded opportunity to produce evidence. In support of her claim, complainant has tendered into evidence her affidavit dated 19-4-2017(Ex. C-1), photocopy of letters (Ex. C-2 & Ex. C-3), photocopy of insurance certificate (Ex. C-4), photocopy of death certificate (Ex. C-5), photocopy of PMR (Ex. C-6), photocopy of DDR (Ex. C-7) and photocopy of Ration Card (Ex. C-8).

12. In order to rebut this evidence, opposite parties have tendered into evidence photocopy of letter dated 28-7-2016 (Ex. OP-1/1), photocopy of letter dated 29-8-2016 (Ex. P-1/2), photocopy of personal accident insurance (Ex. OP-1/3), affidavit dated 24-7-2017 of Pankaj Kumar (Ex, OP-1/4) (wrong mentioned/marked as Ex. OP-1/1 to Ex. OP-1/5), photocopy of Individual personal accident policy (Ex. OP-1/5), photocopy of policy wording (Ex. OP-1/6), photocopy of letter dated 9-7-2017 (Ex. OP-1/7), and photocopy of report dated 22-6-2017 (Ex. OP-1/8).

13. The opposite parties failed to close evidence. As such, evidence of the opposite parties was closed by order dated 24-7-2017.

14. The complainant has also submitted written arguments.

15. We have heard learned counsel for the parties, gone through the record and written arguments of complainant.

16. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that it is not disputed that Jagmohan Singh, husband of complainant was insured for Rs. 10.00 Lacs regarding accidental death. Copy of post mortem report (Ex. C-6) proves that Jagmohan Singh died on 16-5-2016 due to gunshot injury. The complainant has also explained circumstances which resulted in accidental injury to her husband. The matter was also reported to the police vide FIR (Ex. C-7). This FIR was registered on the statement of Jaskaran Singh son of complainant and deceased Jagmohan Singh. It is proved that death of Jagmohan Singh was accidental. Therefore, the complainant being nominee was entitled for insurance claim. The complainant has already submitted all the documents to the opposite parties but they have not so far paid claim. The opposite parties have pleaded that complainant has not submitted documents but the documents relied upon by the opposite parties itself prove that complainant has already submitted required documents and the documents which were in her possession. The opposite parties have filed affidavit of Pankaj Kumar (Ex. OP-1/4). In this affidavit, Pankaj Kumar has taken contradictory stand. In para No. 4, it is pleaded that after complaint, the opposite parties collected documents and got the same verified and investigated. In para No. 12 deponent has deposed that complainant was required to furnish documents mentioned in this para and she failed to submit the same. The list includes claim form, FIR, post mortem report and death certificate. Copy of FIR, post mortem report, death certificate are also produced on record by complainant. The complainant has also asserted that she lodged claim. The opposite parties have produced report of Insurance Investigator and Forensic Analyst. The documents examined by this Investigator are also mentioned. These includes Police General Diary and Post Mortem Report. In further part of the report, under the heading 'Basic Documents Detail', documents submitted/not submitted are also mentioned. The claim form is mentioned as submitted. Post mortem report, death certificate are also examined. Therefore, it is proved that complainant has already submitted material documents. The other documents mentioned in affidavit of Pankaj Kumar are not relevant for the decision of the claim. The other documents include 'treating doctor certificate', but as per complainant's version, Jagmohan Singh died at the spot. There was no question of any treatment. Copy of succession certificate is not required as complainant is nominee. The outstanding loan statement, original cancelled cheques, passport, PAN card, Aadhar Card etc., have no relevancy for the settlement of claim. As it is proved that death of Jagmohan Singh is accidental, therefore, complainant is entitled to the sum assured of Rs. 10.00 Lacs. The opposite parties have unnecessarily delayed the matter. The complainant is also entitled to compensation and interest in addition to litigation expenses.

17. It is further submitted by learned counsel for the complainant that opposite parties have produced on record report of Rajdeep Consultants Insurance Investigator & Forensic Analyst (Ex. OP-1/4) to allege that death of Jagmohan Singh was not accidental but it was voluntary act i.e. suicide but the police has also registered FIR. The police has investigated the matter and investigation conducted by police is to prevail upon the investigation of Rajdeep Consultant.

    In support of these submissions, learned counsel for the complainant has cited following case law :-

(i) 2002 (1) RCR (Civil) 785 case titled National Insurance Co. Ltd., Chandigarh Vs. Roshni Devi

(ii) II (2010) CPJ 1 (SC) case titled Sri Venkateswara Syndicate Vs. Oriental Insurance Company Ltd., & Anr.

(iii) II (2010) CPJ 9 (SC) case titled Amalendu Sahoo Vs. Oriental Insurance Co. Ltd.,

(iv) I (2003) CPJ 33 (NC ) case titled National Insurance Company Ltd., Vs. New Patiala Trading Company

(v) I (1999) CPJ 73 case titled National Processors Vs. National Insurance Company Ltd.,

(vi) IV (2009) CPJ 218 case titled United India Insurance Company Limited &Anr Vs. Deen Dayal

(vii) II (2004) CPJ 583 case titled Darshan Kaur Vs. Oriental Insurance Co. Ltd.,

(viii) III (1996) CPJ 8 (SC) case titled United India Insurance Co. Ltd., Vs. M K J Corporation

(ix) III (2004) CPJ 74 (NC) case titled S K Exports (P) Ltd., Vs. New India Assurance Co. Ltd.,

18. On the other hand, learned counsel for the opposite parties has submitted that the intention of the complainant and his family is only to play fraud with the opposite parties. The insurance was availed on 16-5-2016 at about 10.17 hrs. This fact stands proved from the policy document (Ex. C-4) as well as (Ex. OP-1/2). The deceased Jagmohan Singh has committed suicide on that very day in the afternoon i.e. 12.30 p.m. i.e. after availing the policy. The complainant was repeatedly asked to furnish documents. The opposite parties have also placed on record copies of letters dated 28-7-2016 and 29-8-2016 (Ex. OP-1/1 & Ex. OP-1/2) vide which the complainant was asked to furnish documents. Instead of submitting documents, complainant has filed this complaint. The opposite parties have not decided the claim of the complainant so far. Therefore, the complaint is pre-mature.

19. It is further submitted by learned counsel for the complainant that even otherwise the matter was got investigated from Rajdeep Consultants, Insurance Investigator and Forensic Analyst. Keeping in view all the facts and documents, the investigator has concluded that it is not the case of accidental firing and it is an voluntary act. The investigator has also analyzed the facts and gave detailed reasons in his report. This Forum can take judicial notice of the fact that as per complainant also Jagmohan Singh was not having any licence. He took Revolver of his friend Dharamvir Singh @ Raju while going to urinate. He was having no licence to carry Revolver. She has also stated that deceased Jagmohan Singh started moving the Revolver in filmy style. As per post mortem report also, deceased has received gunshot injury on right temporal side near right eye and the bullet entered deep inside the brain. There was blacking around the wound and index finger of right hand. Therefore, in case of accidental firing injury, it was not to be so close and at the place where deceased has received injury.

    In support of his submissions, learned counsel for the opposite parties has cited 1 (2010) CPJ 162 (NC) case titled National Insurance Company Limited Vs. Nirmala Meena.

20. We have carefully gone through the record, case law cited by learned counsel for the parties and have considered the rival contentions.

21. The admitted facts are that Jagmohan Singh, husband of complainant obtained insurance policy on 16-5-2016 and sum assured was Rs. 10.00 Lacs in case of accidental death. As per complainant Jagmohan Singh died on 16-5-2016 accidentally. The complainant lodged claim being nominee and opposite parties have not decided the claim.

22. The version of the opposite parties is that the complainant was asked to furnish documents vide letters dated 28-7-2016, 12-8-2016 and 29-8-2016 and complainant has not submitted documents. In evidence, the opposite parties have tendered affidavit of Pankaj Kumar, (Ex. OP-1/1). In para No. 4, he has deposed that opposite parties have collected documents as filed by complainant and got the same verified and investigated.

23. The opposite parties have also placed on record copy of report of Rajdeep Consultants Insurance Investigator & Forensic Analyst (Ex. OP-1/4). From the perusal of this report, it also emerges that Investigator examined Police General Diary and post mortem report. The documents submitted by complainant are also mentioned in this report. In Ex. OP-1/5, the Investigator has also briefed the documents submitted/not submitted. The claim form is mentioned as submitted. Post mortem report, and death certificate are also examined. In affidavit Pankaj Kumar has revealed that complainant has not filed claim form, copy of FIR, copy of post mortem report and death certificate. Therefore, it is proved that these documents have been submitted and even examined by Investigator.

24. The other documents are treating doctor certificate. Death of Jagmohan Singh took place at the spot. Therefore, there was no certificate of treating doctor. The copy of succession certificate is required where the claimant is other than nominee but admittedly complainant is nominee. Therefore, this document is also not required. The opposite parties have demanded outstanding loan statement, original cancelled cheque, passport, PAN card etc., but for the purpose of deciding the claim, these documents have no relevancy.

25. Therefore, the conclusion is that the claim can be settled on the basis of documents submitted, examined and produced on record by complainant.

26. As the opposite parties so far not given a final call of the claim, the complaint is pre-mature.

27. Since the opposite parties have unnecessarily delayed to settle the claim, it amounts to deficiency in service. Therefore, the complaint is partly accepted with Rs. 10,000/- as cost and compensation. The opposite parties are directed to decide the claim within 45 days from the date of receipt of copy of this order.

28. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

29. The complaint could not be decided within the statutory period due to heavy pendency of cases.

30. Copy of order be sent to the parties concerned free of cost. As there is shortage of postal stamps, parties can also collect the copy of order personally/through counsel against receipt. File be consigned to the record room.

Announced :

28-03-2018

(M.P.Singh Pahwa )

President

(Jarnail Singh )

Member

(Sukhwinder Kaur)

Member