Haryana

Karnal

CC/53/2023

Seema - Complainant(s)

Versus

ICICI Lombard General Insurance Company Limited - Opp.Party(s)

Umashankar Sharma

26 Jul 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 53 of 2023

                                                        Date of instt.20.01.2023

                                                        Date of Decision:26.07.2024

 

Seema, age 59 years, wife of Shri Berjinder Sharma, resident of house no.701, New Housing Board Colony, Karnal and presently at house no.1457A, Sector-6, Urban Estate, Karnal.

 

                                                                        …….Complainant.                                             Versus

 

ICICI Lombard General Insurance Company, Tower D, 12^th Global Business Park, Mehroli-Gurugram Road, Gurugram and having Branch at SCO no.3, Sector Floor, Sector-8, HUDA Karnal.

 

                                                                 …..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

      Shri Vineet Kaushik…….Member

      Ms. Sarvjeet Kaur…..Member

 

 Argued by: Shri Umashankar, counsel for the complainant.

                    Shri A.K. Vohra, counsel for the OP.

               

                     (Jaswant Singh, President)

ORDER:  

 

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that the complainant obtained a group personal accident policy from the OP with sum assured Rs.22,50,000/- which includes the husband of the first party as insured and the first party was the nominee in the policy. The premium of the policy i.e. Rs.45,000/- was paid by the complainant and thereafter OP issued policy no.4013/H/MoneyL/ 150287753/00/000, valid from 20.06.2018 to 19.06.2023 for a period of five years. At that time all the formalities were completed by the OP. On 01.08.2022, Shri Berjinder Sharma (insured) had gone to the residence of his friend in village Dadupur, where he had fallen from stairs and suffered injury on his head. Thereafter, he was taken to Government Hospital Nissing and was treated for the injuries by Dr. Vikash Garg at CHC Nissing. Thereafter, he ‘was shifted to his residence at Karnal and on the next date i.e. on 02.08.2022, he was expired due to the accidental injuries. He was examined by Dr. S.C.Luthra of Luthra Hospital, Housing Board Colony, Karnal and declared him dead. The complainant being nominee, lodged a claim with the OP and submitted all the required documents for settlement of the claim. Thereafter, complainant visited the office of OP several times and requested to release the claim but OP did not pay any heed to the request of complainant and lingered the matter on one pretext or the other whereas at the time of issuing the policy the OP assured of good and fast services and of making the payment of whole insured amount in case of any mis-happening i.e. the accidental death. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; premature; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that there is no evidence on file to prove that the insured person had expired due to the alleged accident but it was a natural death. No claim has been lodged by the complainant to the OP till date and filed complaint directly, which is bad in the eye of law. It is further pleaded that it is not established from any record that the insured Berjinder Sharma received injuries due to fallen from stairs and suffered injuries on his head as there is neither FIR/DDR or postmortem report qua the death of Berjinder Sharma to establish the alleged accident. The insured person might have expired because of alleged accident but due to some other reasons to which the complainant has been concealing knowingly and intentionally just to fetch the claim from the OP illegally as the said death of the insured person was not due to alleged accident. It is further pleaded that the insurance is based on utmost good faith and both the parties are bound by the terms and conditions of the contract of insurance. The liability of the insurance company-OP has to be within the four corners of the contract of insurance alone. There is no deficiency in service and unfair trade practice on the part of the OP.  The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, affidavit of Babu Ram Ex.CW2/A, affidavit of Dr. S.C Luthra Ex.CW3/A copy of insurance certificate Ex.C1, copy of Risk Assumption letter Ex.C2, copy of Treatment record dated 01.08.2022 Ex.C3, copy of certificate from Luthra Hospital dated 02.08.2022 Ex.C4 and closed the evidence on 29.02.2024 by suffering separate statement.

5.             In additional evidence, learned counsel for the complainant has tendered Claim Form for Personal Accident Insurance Ex.C5 dated 06.01.2022, copy of email dated 15.10.2022 to 24.11.20222 and closed the additional evidence on 04.06.2024 by suffering separate statement.

6.             On the other hand, learned counsel for the complainant has tendered into evidence affidavit of Sonu Rathi Ex.OP1, copy of insurance policy Ex.O1 and closed the evidence on 21.05.2024 by suffering separate statement.

7.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant purchased a Group Personal Accident Policy from the OP. The husband of complainant Berjinder Kumar Sharma (since deceased) the husband of complainant was insured and complainant was the nominee in the said policy. On 01.08.2022,  Berjinder Kumar Sharma fell down from the stairs and received the serious injuries on his head and he died due to these injuries. Complainants lodged the claim with the OP  and submitted all the required documents but OP did not pay the claim despite repeated requests of complainant and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that no claim has been lodged by the complainant to the OP till date but there is neither FIR/DDR nor postmortem report qua the death of insured has been placed on file to ascertain the cause of death and lastly prayed for dismissal of the complaint.

10.           We have duly considered the rival contentions of the parties.

11.           Admittedly, the husband of complainant Birjender Sharma (since deceased) was duly insured vide group insurance policy no.4013/H/MoneyL/150287753/00/000, for the period of 20.06.2018 to 19.06.2023. It is also admitted that sum assured of the policy is Rs.22,50,000/-  It is also admitted that the complainant is nominee in the said policy.

12.           First question arises for consideration before this Commission is that whether the complainant has lodged the claim with the OP or not?

13.           The onus to prove her case was relied upon the complainant. To prove her case, the complainant placed on file copy of claim form Ex.C5 dated 06.09.2022 and e-mails Ex.C6 with regard to conversation between the parties which are the period from 15.10.2022 to 24.11.2022.

14.           The e-mail dated 15.10.2022 is reproduced as under:-

“This is with reference to the captioned claim intimated to us. We have persued the documents and information provided. However, we would like to mention/inform you that we have not received some necessary/required documents for processing the claim. Thus, we once again request you to submit the mentioned documents as per the attachment.”

In reply to the said e-mail, the complainant sent e-mail dated 01.11.2022 to the OP, which is reproduced as under:-

“I already submitted the required documents also again attached in this mail, request you to pls consider the same and proceed the claim further, as insured family is suffering from this, it will be great help from your side if you settle the claim in superfast mode.”

Thereafter, OP sent an e-mail dated 02.11.2022 to the complainant, which is reproduced as under:-

“Thank you for contacting ICICI Lombard General Insurance Company Limited. At the outset, we sincerely apologize for the inconvenience caused to you. We are in receipt of your e-mail to our Managing Director, with regards to claim number BAF049085537. We tried contacting you today on 9991029147, but could not connect. If you wish to call back, please contact on 022-66877111 between 10am to 07 pm from Monday to Friday. We request you to share an alternate contact number (if any) and convenient time for discussion. We appreciate your patience and assure appropriate resolution at the earliest.”

In response to the said e-mail and after discussion with the complainant through telephone, the OP has sent the e-mail to the complainant which is reproduced as under:-

“This is in reference to you email to our Managing Director, with regards to claim number BAF049085537. As per our telephonic conversation held today on 9991029147 and 9992339949, we wish to inform you that case is under verification process and the status of the same will be available after 13 days.”

                Thereafter the OP sent e-mail dated 24.11.2022 to the complainant, which is reproduced as under:-

“This is in reference to your email to our Managing Director with regards to claim number BAF049085537. As per our telephonic conversation held today on 9992339949, we wish to inform you that claim has been rejected and we maintain our stance. (attached rejection letter for your reference). We hope to have addressed your issues and thank you for your understanding.”

                Thereafter, again on 24.11.2022, the OP has sent the e-mail to the complainant, which is reproduced as under:-

“At the outset, we sincerely apologize for the inconvenience caused to you. This is in reference to your email to our Managing Director, with regards to claim number BAF049085537. As per our telephonic conversation held today on 9992339949, we wish to inform you that claim has been rejected and we maintain our stance. (attached rejection letter for your reference). We hope to have addressed your issues and thank you for your understanding.”   

15.           From the above said e-mails, it has been crystal clear that the complainant has lodged her claim with the OP and the same has been rejected by the OP. Hence, the plea taken by the OP has no force.

16.           The next question arises for consideration before this Commission is that whether the death of the insured was accidental or not?

17.           The onus to prove her case was relied upon the complainant. To prove her case, the complainant has relied upon Out Patient Health Care Card Ex.C3 dated 01.08.2022.

 18.          In the said Health Care Card dated 01.08.2022, it has been specifically opined by the doctor that the “wound on frontal region of head history of falling from stairs”. On 02.08.2022, the insured expired and he was checked by Dr.S.C.Luthra, BAMS (Pb), Luthra Hospital, HBC, Karnal, who issued a certificate Ex.C4 dated 02.08.2022, which is reproduced as under:-

“Certified that Berjinder Kumar Sharma age 61 years son of Roshan Lal had sudden history of fall from stairs at Dadupur on 01.08.2022 evening. Patient was examined and treated at CHC Nissing by Dr. Vikas Garg and shifted to house at Sector-6, Karnal.

Today O/E at Home on 02.08.2022 at 9.10 a.m. Patient had no B.P., no pulse, Pupils B/C dilated and patient declared dead. Cause of death head injuries.”

 

19.           The complainant in her evidence has also tendered the affidavit Ex.CW3/A, of Dr.S.C.Luthra, who has issued the certificate Ex.C4. The complainant has also tendered affidavit Ex.CW2/A, of Shri Babu Ram, to whom house the deceased had gone and where the deceased had fallen down from the stairs.

20.           Further, the Health Care Card Ex.C3 has been issued by the Dr.Vikash Garg, MBBS (Medical Officer), CHC, Nissing, who is a doctor of government Health Centre and said certificate is having an authenticity and cannot be ignored.  Thus, from the above certificates and other documentary as well as oral evidence, it has been proved that the insured has died due to accidental injuries.

21.           It is undisputed that no postmortem was got conducted upon the body of Berjinder Kumar Sharma (since deceased). Even, otherwise complainant has proved her case by leading cogent and convincing evidence. In this regard, we relied upon the case law titled as Chandrasekar (died) Thangamani and others Vs. United India Insurance Company of Hon’ble High Court Madras, in CMA no.2245 of 2017, decided on 22.04.2022 wherein it is held that the head injury was sustained by the deceased at the time of the accident. It is not a case under section 302, Indian Penal Code, wherein the conducting of post-mortem examination to know the cause of death may be necessary. In the light of both oral and documentary evidence available in this case, the failure to conduct post mortem examination over the dead body of deceased cannot be taken as circumstances against the claimants, who are claiming compensation for the death of the deceased.”

 22.          Further, if for the sake of gravity, if it is presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we can relied upon the case laws cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

23.           Furthermore, now a days it has become a trend of insurance companies, they issue the policies by giving false assurances and when insured amount is claimed, they make such type of excuses. Thus, the denial of the claim of complainant is arbitrary and unjustified. In this regard, we place reliance on the judgment of Hon’ble Punjab and Haryana High Court titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

24.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the present complaint, we are of the considered view that the act of the OP amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant in toto. Hence, complainant is entitled to get 75% only of the admissible claim on non-standard basis.

25.           As per insurance policy Ex.C1/Ex.O1, the sum insured is Rs.22,50,000/-.  Hence the complainant is entitled for Rs.16,87,500/- i.e. 75% of the insured amount alongwith interest, compensation for mental pain, agony and harassment and litigation expenses etc.

26.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.16,87,500/- (Rs. sixteen lakhs eighty seven thousand five hundred only) to the complainant alongwith interest @ 9% per annum from the date of filing of the complaint i.e. 20.01.2023 till its realization. We further direct the OP to pay Rs.50,000/- to the complainant on account of mental agony and harassment suffered by her and Rs.11,000/-for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:26.07.2024                                                                    

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

      

(Vineet Kaushik)                (Sarvjeet Kaur)    

                     Member                           Member