DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.517 of 2015
Date of institution: 07.10.2015
Date of decision : 22.04.2019
1. Dr. Liza Nagaraj alias Liza Raj widow of Late Dr. Jagannath Nagaraj
2. Aditya Raj (minor son) of Dr. Jagannath Nagaraj through his mother Dr. Liza Nagaraj being natural guardian.
3. Aanya Raj (minor daughter) of Dr. Jagannath Nagaraj through her mother Dr. Liza Nagaraj being natural guardian.
All residents of House No.1545, Sector 33-D, Chandigarh.
CORRESPONDENCE ADDRESS:
Flat No.3B2, Sunny Estates, Mamangalam, Palarivattom, P.O. Edapally, Kochi-682025, Kerala.
…….Complainants
Versus
1. HDFC ERGO General Insurance Company Ltd. through its authorised signatory, Ist Floor, 165-166, Backbay Reclamation, H.T. Parekh Marg, Churchgate Mumbai 400 020 State Maharashtra.
2. HDFC ERGO General Insurance Co. Ltd., through its authorised signatory, SCO 124-125, First Floor, Madhya Marg, Sector 8-, Chandigarh 160009.
3. HDFC Bank Ltd., SCF 55-57, Phase-VII, Mohali 160055 through its Branch Manager.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member
Present: Shri Vikram Singh, counsel for complainant
Shri Tushar Arora, proxy counsel for OP No.1 and 2
Shri Anshul Shahi, counsel for OP No.3
Order by :- Shri G.K. Dhir, President.
Order
Dr. Jagannath Nagaraj, husband of complainant No.1, but father of minor complainant No.2 and 3 was Dentist by profession. Husband of complainant No.1 purchased Platinum Debit Card Package Insurance Policy No.2999200570315100000, Card No.4363030600335665 issued by OP No.3. Complainant No.1, being widow of insured was named as nominee. This insurance policy was for coverage of amount of Rs.10.00 lakhs. Deceased husband of complainant No.1 had to visit twice in a week at Saproon, District Solan (HP) because he was Lecturer in Dental College at Saproon. Husband of complainant No.1 took a house on rent at Saproon for staying therein. On the night intervening 07/08.04.2015, husband of complainant No.1 slept in the rented accommodation at 4th floor of the house, but at about 11.30 p.m. he met with an accident due to slippage from the balcony at house, which was having railing of 3 feet in height. That occurrence took place due to darkness of the night. Husband of complainant No.1 fell from 4th floor of the house and died on the spot. DDR in this respect was lodged with Police Post Saproon. Premium for this Platinum Debit Card Package Insurance Policy was paid by the deceased husband of complainant No.1. Though valid and proper communication to OPs was sent, but no intimation was received from OPs. Rather OP No.3 kept on assuring complainant No.1 as if the amount will be transferred in her account, as and when amount is sanctioned by competent authority. Despite assurance of payment of amount, same not made. However, complainant No.1 was shocked to receive repudiation letter dated 25.06.2015 from OP No.1 through which it was informed that the unfortunate death of card holder happened due to fall from height and as such said incident not covered by policy. Rather through that letter, it was informed that policy covers death due to road, rail and air accidents. Virtually the claim case was closed as no claim in the records of OP No.1. OPs never supplied copy of standard terms and conditions of the policy, due to which deceased was not having the knowledge thereof. Even intimation was never given to husband of complainant No.1 at the time of sale of Platinum Debit Card Package Insurance Policy, that same will cover death due to road, rail and air. No proposal form was filled by husband of complainant No.1 despite mandate envisaged by Section 44 of Insurance Act. By claiming that repudiation of claim is unjustified and not in accordance with terms and conditions of the policy, this complaint filed for seeking direction to OPs to make payment of Rs.10.00 lakhs being insured amount with interest @ 18% per annum. Compensation for mental harassment and agony of Rs.1.00 lakh and litigation expenses of Rs.20,000/- more claimed.
2. In joint reply submitted on behalf of OP No.1 and 2, it is pleaded inter alia as if complainants should be put to strict proof regarding payment of premium; complainants have not approached the Forum with clean hands; complainants have no locus standi and terms and conditions of the policy deliberately have not been produced on record. It is claimed that insurance policy clearly provides as if the policy covers the death due to road, rail and air accident. Provisions of limit of liability provide for giving of maximum insured sum of Rs.10.00 lakhs per card including base cover of Rs.5.00 lakhs in the event of accidental death of the Platinum, World and Business Card holders. It is claimed that limit of liability provides for coverage available in the event of accidental death arising out of air, rail or road. It is claimed that there is no occasion for expanding the coverage. Policy has been issued against the credit card facility offered by OP No.3. There is different coverage for different cards. Policy of insurance is made available through OP No.3 to all Platinum Debit Card holders. As complainants have claimed that policy has been purchased, so it cannot be said that the policy terms and conditions were not made available or known to deceased. It is denied that complainant No.1 being widow named as nominee towards card package insurance policy. Policy number mentioned in the complaint is pertaining to the policy issued by OP No.1 and 2 to OP No.3. Premium even paid by OP No.3. Death in this case has not taken place due to accident arising out of air or rail or road and as such claim is not payable. It is claimed that repudiation letter dated 25.06.2015 was duly issued as per terms and conditions of the contract. There has never been any dispute in respect of terms and conditions of the policy. Each and every other averment of the complaint denied.
3. In separate reply filed by OP No.3, it is claimed that complaint against OP No.3 not maintainable because there is no deficiency in service or negligence on part of OP No.3. Large number of witnesses required to be examined and cross examined and as such civil court alone is competent court. Besides, it is claimed that complainants have not approached the Forum with clean hands and complaint is not in proper form. Complaint alleged to be filed by creating false story. Admittedly Jagannath Nagaraj was having joint account with complainant No.1 in OP No.3. Purchase of Platinum Debit Card Package Insurance Policy by husband of complainant No.1 from OP No.3 denied by claiming that OP No.3 does not sell the insurance policies. Even terms and conditions of the policy are never supplied by OP No.3 and nor OP No.3 issued any details regarding nomination because the same is matter between insured and insurance company. Issue regarding claim is between complainants and OP No.1 and 2. OP No.3 has nothing to do with that issue. Each and every other averment of the complaint denied by praying for dismissal of the complaint.
4. Counsel for complainants tendered in evidence affidavit Ex.CW-1/1 of complainant No.1 alongwith documents Ex.C-1 to Ex.C-5 and thereafter closed evidence. On the other hand counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Shri Pankaj Kumar, Manager Legal alongwith documents Ex.OP-1 to Ex.OP-7 and thereafter closed evidence. Counsel for OP No.3 tendered in evidence affidavit Ex.OP-3/1 of Shri Harjinder Ghuman, Manager and thereafter closed evidence.
5. Written arguments in this case submitted by counsel for complainants and OPs. Oral arguments heard and record gone through.
6. Complainants have produced copy of Platinum Card issued by HDFC bank Ex.C-1 alongwith copy of statement of joint account of complainant No.1 as Ex.C-2. So, certainly complainant No.1 able to establish as if her husband was holding platinum card issued by OP No.3.
7. Death of husband of complainant No.1 took place at Saproon due to fall from 4th floor of balcony in the apartment in which he used to reside for two days during visit to Saproon, regarding which DDR Ex.C-3 was lodged. Copy of death certificate of Jagannath Nagaraj Ex.C-4 produced to show as if his death took place on 08.04.2015. On account of this death of Jagannath Nagaraj, due and valid claim was lodged with OP No.1 and 2, which was repudiated vide letter Ex.C-5 = Ex.OP-7. After going through Ex.C-5 = Ex.OP-7, it is made out that the claim lodged regarding death of Jagannath Nagaraj, by filing claim form Ex.OP-3, was repudiated on ground that death of card holder took place due to fall from height and the same is not due to road, rail and air accident and as such claim not payable. In view of this, claim was closed as no claim as per Ex.C-5 = Ex.OP-7. It may be mentioned here that letter Ex.OP-6 was sent by Manager of OP No.3 for calling upon OP No.1 and 2 to refund the claim on account of death of card holder Jagannath Nagaraj. This Jagannath Nagaraj was holding Platinum Black Debit Card Package Insurance Policy, is a fact borne from contents of Ex.OP-6. Copy of death certificates of Jagannath Nagaraj also produced as Ex.OP-4 and Ex.OP-5 by OP No.1 and 2. In the claim form Ex.OP-3, mention specifically made that death took place on account of accidental fall from balcony. Intimation to Manager of OP No.3 bank was given by complainant No.1 through letter Ex.OP-2 and as such from all these facts, it is made out that complainants able to establish as if deceased was holding Platinum Debit Card issued by OP No.3, due to which coverage under the insurance policy was automatically provided to him. As the insurance coverage provided by OP No.1 and 2 to the Platinum Card holders of OP No.3 on payment of premium by OP No.3 and as such certainly complainants being legal heirs of deceased entitled to insurance coverage benefit of Rs.10.00 lakhs because the scope of coverage is with respect to accidental death. Even letter Ex.OP-1 is there on record to establish as if OP No.1 and 2 provided assurance of indemnity in the event of unfortunate circumstances. Those unfortunate circumstances are accidental death of the Platinum Card holders as per terms of limit of liability, which is part of Ex.OP-1. Coverage for Platinum Card holder provided to the extent of Rs.10.00 lakhs in the event of accidental death and as such it is vehemently contended by counsel for OP No.3 that OP No.3 has no role in payment of insurance amount. That submission of counsel for OP No.3 certainly has force because coverage to the deceased due to holding of Platinum Card regarding insurance provided by OP No.1 and 2 and not by OP No.3. Being so, complaint against OP No.3 certainly is not maintainable regarding the insurance claim. However, the same is maintainable against OP No.1 and 2.
8. It is vehemently contended by counsel for OP No.1 and 2 that limit of liability specifically provides that in the event of accidental death of Platinum Card holder, the maximum insurance coverage is of Rs.10.00 lakhs and the said amount is payable only in case accidental death took place in air, rail and road. If a person falls from 4th floor balcony having height, then his death takes place due to striking on the ground or he may even die during fall in the air due to unforeseen event of uneasiness and also heart failure or like that and as such in case of accidental fall of Jagannath Nagaraj, his death covered by term accidental death in air even. Accidental death in the general conditions contained in Section 2 of terms and conditions of the policy has been defined on account of sudden, unforeseen and involuntary event caused by external and visible means. As it was night darkness when Jagannath Nagaraj fell from 4th floor and it is not a case of OP No.1 and 2 that he voluntarily jumped from 4th floor of the rented accommodation and as such certainly the present is a case of accidental death caused due to sudden, unforeseen and involuntary event.
9. It is vehemently contended by counsel for OP No.1 and 2 that coverage regarding insurance claim provided in the event of accidental death in air, rail and road event and as death of Jagannath Nagaraj did not take place in air or in rail or in road accident and as such repudiation of claim is fully justified as per terms and conditions of the policy. There is nothing on record to suggest that terms and conditions of the policy even were supplied to Jagannath Nagaraj and as such certainly submissions advanced by counsel for complainants has force that virtually terms and conditions of the policy not supplied to the deceased. Record of supply of terms and conditions of the policy bound to be available with OP No.1 and 2, but such record has not been produced and as such complainants able to establish as if terms and conditions of the policy never supplied to deceased, despite providing of insurance coverage to him as Platinum Card holder. This is so when OP No.3 claims to have not issued any policy and nor terms received from OP No.1 and 2.
10. If a person dies due to pneumonia caused due to his working in icy cold water or due to his working on a boiler or due to drowning, or due to fit or due to fall in front of a train, then same is due to external cause and as such same will be accidental death as per case titled as Rita Devi @ Rita Gupta Vs. National Insurance Co. Ltd. & Ors., Revision Petition No.973 of 2007 decided on 24.10.2007 by Hon’ble National Consumer Disputes Redressal Commission. Similar view taken by Hon’ble State Consumer Disputes Redressal Commission Punjab while deciding First Appeal No.393 of 2016 titled as Balbir Kaur vs. Reliance General Insurance Company Ltd. & Ors., decided on 31.05.2017. In the event of accidental death, insurance claim of Rs.10.00 lakhs allowed interest @ 9% per annum from the date of lodging of claim till realisation in case of Balbir Kaur (ibid). So on the same analogy, this complaint also deserves to be allowed, more so when death established due to accidental fall of the insured. As terms and conditions of the policy never supplied to deceased and as such denial of claim of insurance is unjustified, more so when death of insured by accidental falls is established. When the death takes place due to fall from height, then the same is accidental death in the air as observed above because of circumstances of this case qua non supply of terms and conditions and as such complainants entitled in equal share to the insured amount of Rs.10.00 lakhs alongwith compensation for mental agony and harassment and to litigation expenses, but from OP No.1 and 2 only.
11. No other point argued.
12. As a sequel of above discussion, complaint allowed against OP No.1 and 2 with direction to them to pay the insured amount of Rs.10,00,000/- (Rs. Ten Lakhs only) with interest @ 8% per annum from the date of filing of the complaint namely 07.10.2015 till payment Compensation for mental agony and harassment of Rs.30,000/- (Rs. Thirty Thousand only) and litigation expenses of Rs.10,000/- (Rs. Ten Thousand only) more allowed in favour of the complainants and against OP Nos.1 and 2 . Complaint against OP No.3, however, is dismissed. The complainants will be entitled to awarded amount in equal shares. Share of the minor complainants No.2 and 3 be deposited in FDR initially for three years, to which they will be entitled along with accrued interest thereon, on attaining the majority. Liability of OP No. 1 and 2 to pay the amount will be joint and several. Payment of these amounts of compensation and litigation cost be made within 30 days from receipt of certified copy of order. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
April 22, 2019
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
