Complaint No: 150 of 2022.
Date of Institution: 21.07.2022.
Date of order: 23.01.2024.
Menka Gautam Gaur w/o Rakesh Gaur, resident of Rattan Colony Gandran Lahri, Pathankot at present Army School Tibri Cant, Gurdaspur. Pin Code – 145023.
…...........Complainant.
VERSUS
1. Lalit Mohan Bansal, Senior Divisional Manager, National Insurance Company Ltd. DOI Ludhiana near Atam Park Link Road Atam Nagar Ludhiana. Email: 1mbansal@nic.co.in. Pin Code – 144001.
2. National Insurance Company, Division II, Bansal Complex, near Dholewal Chowk, G.T. Road, Ludhiana, District Ludhiana – 141001, through its Authorized Signatory.
3. Satguru Partap Singh Hospital, Sherpur Chowk, Ludhiana, thorugh its Managing Director. Pin Code – 141003.
.....Opposite parties.
Complaint U/S 35 of Consumer Protection Act.
Present: For the Complainant: Ms.Sakshi Sharma, Advocate.
For the Opposite Parties No.1 and 2: Sh.Sanjeev Mahajan, Advocate.
For the Opposite Party No.3: Sh.Varun Gosain, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Menka Gautam Gaur, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of The Consumer Protection Act, (here-in-after referred to as 'Act') against Lalit Mohan Bansal etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the better half of the complainant during his life time had purchased a Group Personal Accident Insurance Policy for Rs.1,50,000/- each to 16 employees from the opposite parties from which he paid a premium of Rs.5098/- to the opposite parties. It is further pleaded that the opposite parties issued the policy No. 401600422010000002 dated 16.4.2021 to late Sh. Rakesh Gaur better half of the complainant in which the complainant was the nominee. It is further pleaded that the husband of complainant died of cardiac arrest first time heart attack with severity on 10.12.2021. It is further pleaded that husband of the complainant was immediately rushed to Satguru Partap Singh Hospital, Ludhiana opposite party No. 3 where he breathed his last. It is further pleaded that cause of death as per hospital confirmation report was due to cardiac arrest. It is further pleaded that the complainant informed the opposite parties regarding the accidental death of Sh. Rakesh Gaur and submitted the claim form alongwith death certificate, policy letter, certificate of legal heirs for the release of P.A Cover of Rs.1,50,000/- to the complainant. It is further pleaded that the opposite parties instead of being a helping hand repudiated the genuine claim of the complainant on 28th June 2022 on the ground that the death of a person due to cardiac arrest is not covered under the Personal Accident Insurance which is unfair trade practice and deficiency in services by the opposite parties. It is further submitted that
In Union of India vs. Sunil Kumar Ghosh, this court dealt with the expression accident and held thus
"13. An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words an event or occurrence the happening of which is ordinarily expected in the normal course by almost everyone undertaking a rail journey cannot be called an accident. But is happening of something which is not inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident."
P Ramanatha Aiyar's Law Lexicon defines the expression accident as
"an event that takes place without one's foresight or expectation and event that proceeds from an unknown cause or is an unusual effect of a known cause and therefore not expected, chance, causality, contingency".
The expression 'accident' in the context of an accident insurance policy has been explained in McGillivray on Insurance Law.
"In the context of an accidental insurance policy the word is usually contained in phrased such as "injury by accident", "accidental injury", “injury caused by or resulting from an accident" or "injury caused by accident means" and in each of these phrases it has the connotation of an unexpected occurrence outside the normal course of events."
Collnvaux's Law of Insurance explains the expression 'bodily injury' thus
"It is usual for the policy to require an accident to manifest itself as "bodily injury" to the assured. The most obvious form of bodily injury is external trauma causing physical injury, but the phrase is not limited to injury to the exterior of the body the term "body injury". When used in a personal accident policy is not limited to lesions, abrasions or broken bones. Nor is it essential that there should be an external mark of injury on the assured's body."
A passage from Collnvaux's Law of Insurance discusses the effect and the impact of the expressions violent external and visible.
"Violent" The notion of violence is not limited to the situation where another person does violence to the assured and it has been said that the word is used simply as the antithesis of without any violence at all. Violent means include any external impersonal cause such as drowning or the inhalation of gas. Thus, violent does not necessarily imply actual violence as where the assured is bitten by a dog. The element of violence will obviously be present where the injury is inflicted by a third party or by some natural phenomenon, since there could otherwise be no effect upon the body of the assured."
“External” It is the means of causing the injury which must be external rather than the injury itself. Thus, a rupture or other internal injury is quite capable of falling within the ambit of a personal accident policy. Given this distinction, it appears that the word "external" in these policies merely serves to reiterate the general principle that the injury must not be attributable to natural causes. It will therefore be obvious that a given type of injury may fall within or without the policy according to the event which caused it and it is this cause which must always be examined."
"Visible" It is probable that this word adds nothing to the policy coverage, since every external cause must also be visible. It appears to be included. merely for purposes of emphasis".
An accident postulates a mishap or an untoward happening something which is unexpected and unforeseen. A bodily injury caused by an accident is not limited to any visible physical marks in the form of lesions, abrasions or broken bones on the
body. A bodily injury can be caused by violent means that are external and relate to the use of strong physical force or even threating someone by the use of violent words or actions. It is further submitted that
In Swaranjit Kaur Vs. ICICI Lombard General Insurance Co. Ltd the assured while travelling on his scooter, suffered a heart attack and fell from his scooter. The claim for accident benefit cover was repudiated on the ground that the insured had died a natural death because of heart attack. The State Commission set aside the order of the district from allowing the claim. The NCDRC while upholding the State Commission's judgment; noted that the onus to prove that the insured had died as a result of an accident and not a heart attack was on the claimant. It held thus
It is further pleaded that on perusal of the copy of repudiation letter, it is clear that the respondents repudiated the insurance claim on the ground that cause of death of insured was heart attack. It is further pleaded that on perusal of the report of the investigator, we find that the stand of the petitioners in the statement made before the investigator on 17.8.2006 was that While driving the scooter insured suffered a heart attack, consequently, he felt down from the scooter and died. From this; it is clear that the accident took place after the insured had suffered heart attack. Otherwise also, in order to succeed in the insurance claim, the onus of proving that the insured had died as a result of accident was on the petitioners. Undisputedly, incident was not reported to the police nor post mortem to establish cause of death was done. No evidence has been produced by the petitioners to prove the cause of death of the insured. There is nothing in the statement of the petitioners as recorded by the investigator that the insured had suffered any bodily injuries due to fall from the scooter. Thus, under the circumstances the conclusion of the State Commission that cause of death of the insured was heart attack and not an accident cannot be faulted. It is further submitted that the policy documents issued by the OP’s No. 1 & 2 further clarifies that cardiac arrest means “The sudden and unexpected loss of, heart function, breathing and consciousness which usually results from an electrical disturbance in the heart that disrupts its pumping action, stopping blood flow to the rest of the body resultantly in the death of the insured as happened in the case of complainant's husband. It is further submitted that as per the policy wordings personal accident covers accidental death as specified in the schedule of coverage on policy schedule certificate of insurance, if insured persons sustains injury due to accident during the period of insurance which shall within 12 months of its occurrence be the sole and direct cause of death of insured person. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that the opposite parties No. 1 and 2 be directed to immediately pay the insurance amount of Rs.1,50,000/- alongwith 12% interest from the date of death till the realization of the amount alongwith Rs,1,00,000/- as compensation for causing mental agony, harassment to the complainant and Rs.50,000/- as litigation expenses in the interest of justice or any other order as deems fit may also be passed, in the interest of justice.
3. Upon notice, the opposite parties No.1 and 2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint filed by the complainant is not maintainable as the complainant has filed this complaint against the terms and conditions of the Insurance Policy and hence, the same is liable to be dismissed as the complainant has miserably failed to disclose deficiency, if any, in the services of the answering opposite parties. It is further pleaded that all allegations made in the complaint, which are not specifically denied herein, are denied being false and baseless. It is further pleaded that complaint is absolutely false, frivolous and at the very outset the replying opposite parties denies all the allegations, facts and averments stated in the complaint filed by the complainant except to the extent it is expressly admitted therein. It is further pleaded that non-traversal of any paragraph should be read as categorical denial and the complaint filed by the complainant is not legally maintainable against replying opposite parties and is liable to be dismissed, as the complainant has attempted to misguide and mislead the Hon'ble Commission and as such, the complaint is liable to be dismissed on this ground alone and that no cause of action has ever arisen in favour of the complainant against the replying opposite parties to file the present complaint and hence, the complaint under reply is an abuse of the process of law and as such the same is liable to be dismissed, with exemplary cost. It is pleaded that the true facts are Avon Fitness Machine Pvt. Ltd. Ludhiana purchased a group personal accident Insurance policy covering 16 employees under Medical Risk Category with sum insured of Rs.1,50,000/- each from 07.04.2021 to 06.04.2022. It is further pleaded that husband of complainant was one of employee of Avon Fitness Machine Pvt. Ltd. Ludhiana. It is further pleaded that name of Mr. Rakesh Gaur was included as employee in the insurance policy taken by Avon Fitness Machine Pvt. Ltd. Ludhiana but the Insurance claim lodged by complainant with the OP No. 2 is not covered the risk as per terms and conditions of insurance (Group) policy. It is further pleaded that Mr. Rakesh Gaur deceased employee of Avon Fitness Machine Pvt. Ltd. Ludhiana, who was husband of complainant died due to cardiac arrest (heart attack) on 10.12.2021 at Satguru Partap Singh Hospital Ludhiana, but death of Mr. Rakesh Gaur due to heart attack is not covered under present policy terms & conditions. It is further pleaded that it is wrong that the replying opposite parties ever issued policy to Mr. Rakesh Gaur. It is further pleaded that the complainant informed the opposite parties regarding the death of Mr. Rakesh Gaur and submitted the claim form along with death certificate, policy letter but the opposite party No. 2 repudiated the claim of the complainant on 28th June 2022 on the ground that the death of a person due to cardiac arrest in not covered under the Personal accident insurance. It is further pleaded that the repudiation letter was sent to the insured Avon Fitness Machine Pvt. Ltd. Ludhiana vide E-mail on 28.06.2022 regarding non-coverage of death due to cardiac arrest. It is further pleaded that there is no unfair trade practice and deficiency in services by the replying opposite parties. It is further pleaded that the opposite party No. 2 rightly repudiated the claim of complainant as per terms & conditions of National Insurance Co. Ltd. personal accident insurance Group policy.
On merits, the opposite parties No.1 and 2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.3 appeared through counsel and contested the complaint and filing their written reply, stating therein that Sh. Rakesh Gaur, 50 years male UHID-843906 was admitted in the opposite party No. 3 Hospital on 10.12.2021 at 3.31 AM in emergency with chief complaints of Loose Stool 15 episodes and vomiting 2 episodes from last one day. It is pleaded that Patient was intubated and ACLS Protocol was followed, but despite all efforts patient could not be revived and declared dead at 8.30 AM on 10.12.2021. It is further pleaded that as Sh. Rakesh Gaur was neither insured with the opposite party No. 3 Hospital nor they repudiate their claim as alleged. It is further pleaded that reply may be sought from opposite parties No. 1 and 2, being their insurance companies.
On merits, the opposite party No.3 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Learned counsel for the complainant has tendered into evidence affidavit of Menka Gautam Gaur, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-3.
6. Learned counsel for the opposite parties No.1 and 2 has tendered into evidence affidavit of Ms. Sunita Saini, (Senior Divisional Manager, National Insurance Company Ltd, Pathankot) as Ex.OPW-1/A alongwith other documents as Ex.OP-1 to Ex.OP-2.
7. Learned counsel for the opposite party No.3 has tendered into evidence affidavit of Dr. Kanwaljit Singh, (Chief Operating Officer SPS Hospitals, Ludhiana) as Ex.OP-3/A alongwith other document as Ex.OP-3/1.
8. Rejoinder not filed by the complainant.
9. Written arguments filed by the complainant but not filed by the opposite parties.
10. Counsel for the complainant has argued that husband of the complainant had purchased Group Personal Accident Insurance Policy for Rs.1,50,000/- from the opposite parties No.1 and 2 and during continuation of insurance husband of the complainant died of cardiac arrest first time heart attack with severity on 10.12.2021. It is further argued that intimation was given to the opposite parties No.1 and 2 alongwith requisite documents but opposite parties No.1 and 2 had repudiated the claim on false and flimsy grounds which amounts to deficiency in service.
11. On the other hand counsel for the opposite parties No.1 and 2 has argued that husband of the complainant was employee of Avon Fitness Machine Pvt. Ltd. Ludhiana and said company had purchased Gorup Personal Accident Insurance Policy covering 16 employees under Medical Risk Category with sum assured of Rs.1,50,000/-. It is further argued that husband of the complainant died due cardiac arrest which is not covered under the present policy's terms and conditions and has prayed for dismissal of the complaint.
12. Counsel for the opposite party No.3 has argued that husband of the complainant was admitted in the hospital of opposite party No.3 on 10.12.2021 at 3.31 AM in emergency with chief complaints of Loose Stool 15 episodes and vomiting 2 episodes and ACLS protocol was followed but despite all this patient could not be revived and died at 8.30 AM on 10.12.2021. It is further argued that husband of the complainant was not insured with the opposite party No.3 hospital nor they repudiated the claim and has prayed for dismissal of the complaint.
13. We have heard the Ld. counsels for the parties and gone through the record.
14. To prove her case complainant has placed on record her duly sworn affidavit Ex.CW-1/A, copy of E-mail regarding denial of claim Ex.C1, copy of policy Ex.C2 and copy of death certificate of Rakesh Gaur Ex.C3 whereas opposite parties No.1 and 2 have placed on record affidavit of Suita Saini Senior Divisional Manager Ex.OPW-1/A, copy of Personal Accident Insurance Group Policy Ex.OP-1 and copy of letter of denial Ex.OP-2, Opposite party No.3 has placed on record affidavit of Dr.Kanwaljit Singh Chief Operating Officer Ex.OP-3/A and copy of resolution Ex.OP-3/1.
15. It is admitted fact that husband of the complainant namely Sh.Rakesh Gaur was insured with the opposite party No.2 vide Group Personal Accident Insurance Policy sum assured of Rs.1,50,000/- from 07.04.2020 to 06.04.2021. It is further admitted fact that the insured Rakesh Gaur expired on 10.12.2021 due to cardiac arrest Heart Attack at Satguru Partap Singh Hospital, Ludhiana. It is further admitted fact that claim lodged by the complainant was repudiated vide E-mail 28.06.2022. The counsel for the complainant has contended that an accident is an occurrence or an event which is unforeseen and startless one when it takes place but does not startle one when does not take place and the accident postulate mishap or an untoword happening something which unaccepted and unforeseen and as such death of insured Rakesh Gaur must be treated as accidental as cardiac arrest is also in a way accident but we do not find any force in the arguments addressed by the counsel for the complainant as it is admitted fact that husband of the complainant suffered massive heart attack and ultimately died of cardiac arrest and by no stretch of imagination the death can be termed as accidental one.
16. We have relied upon judgment of Hon'ble Supreme Court of India report in 2019(2) R.C.R. (Civil) 932 wherein it has held as under
"A. Consumer Protection Act, 1986 Section 23 Accidental death - Medical Evidence - Insured while riding his motorcycle, experienced pain in the chest and shoulder, suffered a heart attack and fell from the motorcycle - Death not due to accident of falling from the motorcycle".
(Para 11)
"B. Consumer Protection Act, 1986 Section 23 Insurance Claim - Repudiation Insurance claim was settled in respect of basic cover insurance - Insurer repudiated claim under accident benefit component of policy on ground that death of insured occurred due to heart attack and not due to accident- complainant required to show that accident and injuries sustained as result of fall from motor cycle were direct or proximate cause of her husband's death - No evidence led to show that any bodily injuries were suffered due to fall from motorcycle or that they led to assured suffering heart attack - There is no evidence to show that accident took place as result of any outward, violent and visible means - Assured died as result of heart attack which was not attributable to accident - Claim rightly repudiated".
As per the said judgment the Hon'ble Supreme Court of India has held that the injury on account of accident must be solely and directly cause of accident.
17. We have further relied upon judgment of Hon'ble Supreme Court of India report in 2023(1) Law Herald (SC) 438 wherein it has held as under
"(A) Insurance Act, 1938 - Life Insurance - Accidental Death- A proximate casual relationship between the accident and the body injury is a necessity - There is distinction between 'accidental means' and 'accidental result' while deciding the insurance claims - Thus, an unexpected accident and unforeseen consequence or result from a normal or routine activity may constitute an accident but it would not quality as " accidental means" to claim compensation".
"(B) Insurance Act, 1938 - Life Insurance - Accidental Death - Scope of cover of policy required cause of death to be external violent and any other visible means" - Deceased died due to heat stroke while on election duty - Cause of death not covered within scope of cover - Insurance Company not liable to pay - However, compensation amount has already been paid, direction issued not to recover the same".
In the present case the death of insured took place due to heat stroke while on election duty and it was held by the Hon'ble Supreme Court of India that death cannot be termed as accidental one and insurance company was held not liable to pay compensation.
18. From the above discussion and evidence on record and case laws cited above we have no hesitation in holding that complainant has miserably failed to prove deficiency in service on the part of the opposite parties in repudiation of the claim.
19. Accordingly, complaint being without merit is ordered to be dismissed with no order as to costs.
20. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases.
21. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Jan. 23, 2024 Member.
*YP*
