This is a case under section 12 Sub-section (I) Clause (a) of the Consumer Protection Act, 1986.
The case of the complainant, Smt. Ranjana Agarwal, in brief, is that her husband, Dhiraj Agarwal on 26.05.2016 while working in verandah/balcony railing as usual for feeding pigeons at about 05-15 in the morning suddenly and accidentally fell down due to slip of leg from 2nd floor of the Apartment and sustained injuries. He was taken to Dr. Nayak Nursing Home (P) Ltd., Sevoke Road, and there from to Siliguri District Hospital by the cousin-brother, or her husband, Sri Bikashn Agarwal and by one Rajat Agarwala where her husband, Dhiraj Agarwal was declared “Brought dead” at about 07-15 A.M. on that date i.e., on 26.05.2016.
On information or such death by Siliguri district Hospital the Siliguri Police Station started U/D Case No.135/2016 dated 26.05.2016 Post mortem enunciation over dead body held at NBMCH (North Bengal Medical College & Hospital) on that 26.05.20115 being PM No.941/16. It is contended in the complainant’s petition further that said Dhiraj Agarwal, since deceased S/o Subhas Chandra Agarwal during his life time had availed three (3) policies of Life Insurance Corporation of India Limited (Central office), OP No.1, having it Branch-I at Sevoke Road under P.S.- Siliguri, Dist.- Darjeeling, OP No.2 and while OP No.3 is the Jalpaiguri Divisional Office at District- Jalpaiguri, adjacent district of Darjeeling. Three policies which were started with the OPs bear Policy Nos. 1) 452301717 dated 28.03.2001 which is Money Back Policy with accidental benefit Rs.2,00,000/, 2) 454505731 dated 18.03.2006, Jeevan Anand Policy (with profits) for Accidental Benefit of Rs.5,00,000/- and 3) 457224872 dated 27.02.2012, with same benefit & same nature with Accident Benefit of Rs.5,00,000/- (Five lacs only).
Complainant lodged her claim before the Op No.2 in c/w the policies of her husband.
That subsequently on 16.09.2016 the FIR, Police Inquest Report, Police Final Report and Post Mortem report was duly submitted to the OP No.2 for releasing the accidental benefit claim of the said 3 (three) policies. However the OPs did not clear the clam of the complainant and the said OP No.3 merely by and through a Letter Ref No.: Claims/Jal-DO/Balurghat dated 21.09.2016 alleged that the said documents viz. Investigation report and Final Report are incomplete report and inter-alia demanded full Investigation report and full Final Report covering the incomplete portion of report”. The OP No.3 also alleged in the said letter that the death of the said insured was accidental or whether it was a suicide is not covered in both the investigation report and final report of the police with the sole objective to frustrate/redundant the claim of the complainant with regard to accidental benefit which was/is covered in the said policies.
That the ambiguity as raised by the OPs in their Letter Ref No.: Claims/Jal-DO/Balurghat dated 21.09.2016 is a willful, and manufactures one just to redundant and frustrate the claim of the complainant. It is very much crystal clear and ascertained from the documents on record that there is no iota of doubt that the death of the said Dhiraj Agarwal was a accidental one due to fall from the balcony/verandah railing of the 2nd Floor of the apartment while working and as such the possibility of suicide as raised by the OPs is not at all correct and is merely a figment of imagination of the insurance corporation.
That the deceased Dhiraj Agarwala was the only earning member of the family consisting of the complainant (now widow) and 2 (two) sons namely Abhisek Agarwal and Subham Agarwal (minor). The law of the land ought to prevail and justice be granted to the widow of deceased.
Hence the complaint filed with a prayer for an award along with a direction to the OP to pay accident benefit of Rs.5,00,000/- (Rupees Five lacs).
Totaling a sum of Rs.12,50,000/- (Twelve lacs fifty thousands).
The complainant in support of her case filed some documents which include 3 Policies, Referral Letter or Dr. Nayak Nursing Home Private Ltd. dated 26.05.2016, Letter of that date of Medical officer, Siliguri District Hospital to the Officer-in-Charge, Siliguri Police Station along with description of patient ‘brought dead’ in prescribed form, Inquest Report, Post Mortem Report, Dead Body Challan, letter of complainant dated 01.08.2016 to LICI, Jalpaiguri Divisional Office and letter of Reply dated 21.09.2016 sent by said office to complainant. These documents are mostly filed in original.
OPs appeared in this case and filed their written version on 29.03.2017. In written version in paragraph no.08 there LICI admitted claim of Rs.2 lakhs of complainant as mentioned against money back policy no.452301717 as well accident benefit of Rs.5 lakhs each mentioned against two policies stating further that policy “Jeevan Anand” on the same life is only Rs.5 lakhs, provided the accident is legally established.
It is the case of the OPs that repudiation of claim is justified from their part as the death of husband is suicidal and it is not accidental as it is not proved from Post Mortem report and Final report. It is contended that claim as made by the complainant is not lawful as the death of Dhiraj Agarwal has not been proved as accidental death.
It appears from case record that OPs were given ample opportunities to give evidence from their sides on three dates one after another and on 3rd date, OPs did not take steps, so date of exparte hearing was fixed up.
Points for determination
1. Has the petition any cause of action to file this case ?
2. Whether repudiation of the claim of the complainant as made by OPs stands within the purview of deficiency in service?
3. Is the petitioner entitled to get the relief as prayed/claimed for in this case?
Decision with reason
All the points are taken up together for consideration.
Complainant side filed written note on argument and ld advocate for the complainant during oral argument submitted that complainant herself and four (4) other witnesses categorically in their evidence along with affidavit asserted that Dhiraj Agarwal died on 26.05.2016 out and out of an accident and in this context over the plea of written version of the OPs that accidental death did not occur or has not been proved or it might have occurred suicidal death, mentioned and referred one case law as reported in [2015] CJ 585 (N.C.) and drew the attention of the Forum to that case in between IDBI Federal Life Insurance Co Ltd. Vs Anuva Ghosal & another where Hon’ble National Consumer Disputes Redressal Commission on 05.01.2015 has been pleased to observe and decided that a mere assertion that insured had committed suicide is not significant to repudiate the claim preferred by complainant. The burden to prove this suicide is on the insurer as there is presumption of law against normal and same person committing suicide.
Here in this case neither Post Mortem report nor Final Report contain even an observation that it was a case of suicide. From evidence of PW1 to PW5 it appears that death of Dhiraj Agarwal is out and out a consequence or result of accident. No iota of evidence or even any whisper of suicidal death is traceable from papers of the Nursing Home or subsequently that of report of Medical Officer of Siliguri District Hospital. Nothing is there on record from evidences of PWs that Dhiraj Agarwal was suffering from unhappiness or any sort of depression prior to his death.
LICI challenges but failed to prove with independent material evidence that insured had committed suicide and even in this case OPs did not avail of the opportunity for adducing or producing evidence from their part and they ultimately did not take steps on the 3rd date of evidence from their part.
Ld advocate for complainant not only in written notes of argument but also during oral argument submitted that complainant is entitled to Rs.5,00,000/- against both the Policy Nos.457224872 and Policy No. 454505731 and another sum of Rs.2,00,000/- against Policy No.452301717 and Rs.50,000/- as compensation for harassment and mental agony and Rs.25,000/- as litigation cost.
It is the borne in mind under the facts and circumstances of this instant case. The principle of law as laid down in the above referred case of Hon’ble National Consumer Disputes Redressal Commission is very much applicable and considering all relevant materials on case record particularly the evidences of the witnesses and documentary evidences as produced and at the same time being in mind the admitted portion of written version as regards claim of complainant if accident is proved and the portion of claim as made in the W/N/A of this complaint while it is submitted by ld advocate of complainant, we are of the view that repudiation of the complainants claim over the accidental death of her husband, Dhiraj Agarwal which was an insured under three (3) policies of OPs was not lawful and justified at all and this repudiation of the OPs towards the lawful claim of the complainant which is of dated 21.09.2015 is in deficiency of service to a rightful consumer. The OPs were required to allow the claim of the complainant as insurer on 21.09.2015 instead of sending repudiation letter to the complainant on that date but that was no done, hence this case which has been ended in success from complainant’s side on behalf of complainant.
Proper fees paid.
All the points are thus decided in favour of complainant.
Hence, it is,
O R D E R E D
that the instant case being Consumer Case No.127/S/16 be and the same is allowed in part in exparte against all the three OPs with cost.
All the OPs are liable and accordingly directed to pay the above award of Rs.7,75,000/- (Seven lacs Seventy Five Thousands only) to the complainant along with thereon interest calculated @ 12% per annum on and from 21.09.2015 till the date of actual payment which must be within 45 days from the date of this final order/judgement.
The complainant is entitled to get an award of Rs.5,00,000/- as accidental benefit against both the policy no.457224872 and policy no.454505731 and as against policy no.452301717 Rs.2,00,000/- and a further sum of Rs.50,000/- as compensation for harassment and mental agony and also a sum of Rs.25,000/- as litigation cost totalling a sum of Rs.7,75,000/- (Seven lacs Seventy Five Thousands only) from the OPs, in this case along with interest @ 12% per annum to be calculated on and from 21.09.2015 till the date of actual payment.
The petitioner will be a liberty to put this order/decree in execution if this order of the Forum are not complied with and in that rate of interest as mentioned shall be carried on by the OPs fill full realization of the award.
Let a copy of this order be handed over to the complainant at once and copies to be sent by Speed Post to all OPs at once free of cost.
