Punjab

StateCommission

A/416/2018

Tata AIG General Insurance Company - Complainant(s)

Versus

Naranjan singh - Opp.Party(s)

Sachin Ohri

09 Jan 2019

ORDER

                                                               FIRST ADDITIONAL BENCH

 

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   First Appeal No.416 of 2018

 

 

                                                          Date of Institution   :  24.07.2018      

                                                          Order Reserved on : 08.01.2019

                                                          Date of Decision     : 09.01.2019

 

Tata AIG General Insurance Company Limited, Registered Office, 15^th Floor, Tower-A, Peninsula Business Park, Ganpatrao Kadam Marg, Senapati Bhagat Marg, Lower Parelm, Mumbai through its Mr. Rohit Udaiwal, Authorized representative of Tata AIG General Insurance Company Ltd., 810-816, 8^th Floor, World Trade Tower, Sector 16, Noida.

 

 

                                                            Appellant/Opposite party  no.1  

                   Versus

 

 

 

1.      Naranjan Singh age about 60 years S/o Sh. Tara Singh, r/o VPO Ladhra, Block, Bhogpur, P.S Kartarpur, Tehsil and District Jalandhar, Punjab.

                                                          Respondent no.1/Complainant

 

2.      Axis Bank Ltd, G.T Road Bhogpur, Tehsil and District Jalandhar through its Manager.

 

 

                                         Respondent no.2/Opposite party no.2

 

 

First Appeal against order dated 17.04.2018 passed by District Consumer Disputes Redressal Forum,  Jalandhar.

 

 

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member

            Sh.Rajinder Kumar Goyal, Member.

 

Present:-

 

          For the appellant                   :  Sh.Sachin Ohri, Advocate

          For the respondent no.1       :  Sh.Vaibhav Jain, Advocate

          For the respondent no.2.      :  Ex-parte.

         

. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

                    Challenge in this appeal by appellant is to order dated 17.04.2018 of District Consumer Disputes Redressal Forum Jalandhar, directing the appellant to  pay the insured amount of Rs.10 lac  to respondent no.1 Naranjan Singh of this appeal with interest @ 9% from the date of repudiation of claim  i.e. 02.02.2016 till realization, besides compensation of Rs.30,000/- for mental harassment and Rs.10,000/- as cost of litigation. Respondent no.1 of this appeal is complainant in the complaint and respondent no.2 of this appeal is opposite party no.2 in the complaint before District Forum Jalandhar and appellant of this appeal is opposite party no.1 therein and they be referred as such hereinafter for the sake of convenience.

2.                The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that Balwant Kaur  was the wife of complainant, who was insured with OPs, vide policy no. 0200296442 and client ID 7850595 with commencement date of policy from 22.10.2013 to 21.10.2016. The complainant paid lump sum installment of Rs.2647/- to OPs on behalf of Balwant Kaur (since deceased). OPs intimated to pay Rs.10 lac for accidental death claim or any other claim during the said period to the insured. Balwant Kaur wife of the complainant lost her balance on the roof of the house, where she was playing with her grandson on 12.04.2014 at about 10.30 am. She fell down from the stairs of the house and sustained head injury thereby and expired on the spot due to that. The complainant called the doctor, but to no effect. Balwant Kaur died due to above referred accident. The field officer of OPs visited the spot and investigated the case and recorded the statements of his family members and sarpanch of the village, besides taking photographs of the above stairs. The said officer also collected medical report and other necessary documents for issuance of claim to complainant regarding her accidental death. OPs have not given insurance claim to complainant, which constrained the complainant to file the complaint before District Forum Jalandhar. The complainant seeks direction to OPs to pay the insurance claim of Rs.10 lac regarding death of his insured wife Balwant Kaur, besides compensation of Rs.1 lac for mental harassment as well as Rs.15,000/- as costs of litigation.

3.                Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that insurance claim has been rightly repudiated by OP no.1, as per terms and conditions of the policy. On the receipt of the information qua the alleged death of the insured Balwant Kaur, the matter was got investigated through an independent investigator M/s BIMA Vigil, who submitted its report dated 18.01.2016.  As per investigation report, there was no FIR/MLC report confirming the accident leading to death of insured Balwant Kaur. The above referred accident took place on 12.04.2014 as per the case of the complainant, but intimation of the claim was given by complainant to OP no.1 after an inordinate delay of more than one year and eight months, which amounts to violation of  Uniform Provision no.10 of the policy. There was no FIR filed with the police regarding accidental death of insured Balwant Kaur in this case. The complainant violated the provision no.12 of the policy by not furnishing written evidence to OPs  regarding loss within 30 days period. Letter dated 02.02.2016 was written by OP no.1 to complainant calling upon him to give his reply within seven days from the date of receipt of letter, failing which claim case would be closed. No reply whatsoever was received from the complainant to that letter dated 02.02.2016 leading to deemed closer of the claim case by OP. OP no.1 controverted the other averments of the complainant even on merits on the above referred grounds and prayed for dismissal of the complaint.

4.                Opposite party no.2/ AXIS Bank filed its separate written reply and contested the complaint of the complainant by raising preliminary objections to the effect that OP no.1 is not in the business of insurance because its business is confined to the bank under Banking Regulation Act 1949 exclusively. Bank’s role is only as a facilitator/referral agent and actual insurance is issued by the insurance company i.e. OP no.1 only. OP no.2 Bank is simply an agent of OP no.1/insurance company. Any deficiency in service on the part of OP no.2 was denied by it and it prayed for dismissal of the complaint.

5.                The complainant tendered in evidence his affidavit  Ex.CW-1, affidavit of Kulwant Singh Lamberdar as Ex.CW-2, affidavit of Sukhwinder Singh Ex-Member Panchayat as Ex.CW-3, affidavit of Mohinder Pal Member Panchayat as Ex.CW-4, affidavit of Dr.Ranjit Singh as Ex.CW-5/A along with copies of documents Ex.C-1 to Ex.C-4 and closed the evidence. As against it; OPs tendered in evidence affidavit of Sh. Mohammad Azhar Wasi as Ex.O-A  and affidavit of Sh.Anoop Bisht as Ex.O-B along with copies of documents Ex.O-1 to Ex.O-5 and closed the evidence. On conclusion of evidence and arguments, the District Consumer Forum Jalandhar accepted the complaint of the  complainant by virtue of order dated 17.04.2018. Aggrieved by above order of the District Forum Jalandhar, opposite party no.1 now appellant has carried this appeal against the same.

6.                We have heard learned counsel for the parties and have also examined the record of the case.  

7.                The submission of counsel for the appellant is that death of Balwant Kaur insured on account of accidental death has not been established in this case by the complainant and as such, complainant is not entitled to claim the insurance claim under this policy dealing with accidental death only. There is no dispute of this fact that this is an accidental shield policy and accident has been defined as “sudden, unforeseen, involuntary physical event to the insured person caused by external and visible means occurring during the insured period.” The onus to prove this fact is on the complainant that death of insured Balwant Kaur took place due to an accident. The counsel for respondent contended that death of insured Balwant Kaur has been proved by means of evidence of her accidental death on the record. The evidence has to be adverted to by us on the record for the settlement of this controversy brewing between the parties in this case.  The complainant relied upon his own affidavit Ex.CW-1 to the effect that Balwant Kaur his insured wife fell down from the roof through stairs and sustained head injury leading to her death. He also relied upon affidavit of Kulwant Singh Lambardar Ex.CW-2 on the record to substantiate this point. Further reliance of complainant is on affidavit of Sukhwinder Singh Ex-Member Panchayat Ex.CW-3, affidavit of Mohabat Pal Member Panchayat as Ex.CW-4 on the record to the effect that Balwant Kaur insured  died due to accidental death by a fall from the roof through stairs and thereby sustained head injury on her person. The complainant further relied upon affidavit of Dr. Ranjit Singh MBBS (MD) Ranjit Hospital Laroi Road Bhogpur Tehsil and District Jalandhar Punjab vide Ex.CW-5/A. He stated that he attended deceased Balwant Kaur wife of Naranjan Singh ;on 12.04.2014 and she suffered from head injury due to fall. Ex.C-1 is policy covering the accidental death of insured for insured amount of Rs.10 lac and this policy was operative from 22.10.2016 to 21.01.2016. Ex.C-2 is attending physician’s statement document prepared by Dr.Ranjit Singh. He recorded head injury of Balwant Kaur in his attending physician statement Ex.C-2. The death certificate of Balwant Kaur is Ex.C-3 on the record showing the date of death of Balwant Kaur insured on 12.04.2014.

8.                To counter this evidence of complainant, OPs relied upon affidavit of Mohd. Azhar Wasi Head Claims North Zone TATA AIG as Ex.O-A, who stated that no FIR or medical legal report has been adduced by the complainant with the insurance claim to prove accidental death of insured. He stated that the cause of death on account of accident of Balwant Kaur has not been established for want of FIR and postmortem report on the record. Ex.OP-B is affidavit of Anoop Bisht  being investigator in this case, who submitted his investigation report dated 16.01.2016 to OP no.1/Company. Ex.OP-1 is policy schedule. Ex.OP-2 is investigation report dated 16.01.2016 on the record to the effect that there is no police report or postmortem report or no information of hospitalization of the deceased due to above accident of insured on the record. Enquiry was conducted by him and there was no information found regarding death of Balwant Kaur, as stated in the report. The investigator recommended that there is no documentary evidence submitted by the insured confirming the death of Balwant Kaur being caused by accidental head injury. Ex.OP-4 is letter sent to complainant by OP no.1 on   02.02.2016 calling the case. Ex.OP-5 is personal accidental case notification.

9.                From appraisal of material evidence on the record, we find that Balwant Kaur took accidental policy from OP no.1. Accident means “sudden, unforeseen, involuntary physical event to the insured person caused by external and visible means occurring during the insured period.” As per case of the complainant, she fell down from the roof through stairs  and sustained head injury. There is mere reliance of OPs on the report of investigator in this regard. The statements of witnesses recorded by the investigator Anoop Bisht  are not placed on record to facilitate us to come to this conclusion as to what was the reason for him to draw that conclusion. On the other hand, affidavit of the complainant Naranjan Singh is corroborated by affidavit of Kulwant Singh Lambardar as Ex.CW-2, affidavit of Sukhwinder Singh Ex-Member Panchayat as Ex.CW-3, affidavit of Mohinder Pal Member Panchayat as Ex.CW-4 and further more by , affidavit of Dr.Ranjit Singh as Ex.CW-5/A, who attended Balwant Kaur insured at Ranjit Hospital Laroi Road Bhogpur Tehsil and District Jalandhar have established this fact in the shape of substantive evidence.  The affidavit furnished by this doctor Ranjit Singh who is postgraduate in medicines carries weightage as he has personal knowledge of the matter having attended  the insured after sustaining head injury.   He has proved this fact in his affidavit Ex.CW-5/A that he attended deceased Balwant Kaur on 12.04.2014 and she suffered from head injury due to fall.  He has opined that cause of her death was due to head  injury and he proved attending physician statement Ex.C-2 on the record dated 12.04.2014, prepared by him. There is no rebuttal to this evidence of doctor witness Dr.Ranjit Singh by OPs on the record. Consequently, relying upon above referred evidence adduced by the complainant and particularly the evidence of  Dr. Ranjit Singh witness being specialist in medicine, we find that this fact is established on the record that Balwant Kaur died due to accidental injury on her head. The evidence of OPs by the investigator Anoop Bisht is unable to rebut the above-referred evidence led by complainant on the record. Consequently, this finding of fact is returned by this Commission that death of Balwant Kaur on account of accidental injury on her head is established on the record.

10.              The next submission of counsel for appellant before this Commission is that there is delayed intimation given by the complainant regarding this accidental death of Balwant Kaur to the insurance company, which is fatal to his case. Balwant Kaur sustained head injury due to accident on 12.02.2014 at 10.30 am leading to her death. The investigating officer Anoop Bisht was appointed by OPs, who submitted his report Ex.OP-2 dated 16.01.2016 against her accidental death. He was assigned the investigation by OPs on 15.12.2015 in this case.  The onus to prove this fact is on the insurance company that intimation was not given to it by complainant within time and there is thus violation of Clause no.12 of the policy laying down that completed claim forms and written evidence of loss must be furnished to insurance company within 30 days after the date of such loss. Failure to furnish such information within time required shall not invalidate nor reduce any claim, if it can be satisfied that it was not reasonably possible to give proof within such time. No proof will be accepted if furnished later than one year from the time the loss occurred. Herein, the loss occurred on 12.04.2014 and OPs assigned the job of investigation to Anoop Bisht on 15.12.2015. This is duty of the insurance company to prove the insurance claim on the file as to when it was lodged by the complainant with it. As per Ex.OP-5 , it is recorded that TAT for first contact informed to customer – 48 hours excluding Sat/Sun & Holidays. There is nothing on the record by OPs as to when it received the intimation of the loss from the complainant. The version of counsel for complainant during arguments is that intimation was given to OPs within time,  but OPs caused delay at its own end in not appointing investigator in this case. The counsel for insurance company relied upon Ex.OP-3 showing the date of intimation as 11.12.2015. In the absence of record of insurance company as to on what number, receipt or email, the intimation was received with regard to this loss, it is difficult to hold that complainant has not given intimation of loss regarding death of Balwant Kaur to insurance company/OP no.1 for the alleged delayed period. Insurance Company failed to substantiate this point on the record. The reliance of counsel for appellant on law laid down by National Commission in "Vandana Verma versus IFFCO Tokio General Insurance Co. Ltd" reported in 2017(4) CPJ 516 and "Ritu Singhal versus New India Assurance Co. Ltd.", reported in 2017(3) CPR 769 by National Commission  are distinguishable because herein OPs could not establish this fact on the record that intimation was not received by it within time from the complainant. This finding of fact is returned against insurance company by holding that it failed to substantiate the fact of the delayed intimation of loss in this case to it by the complainant.

11.              As a consequence of our above discussion, we find no illegality or material infirmity in the order of the District Forum Jalandhar dated 17.04.2018 and the same is affirmed in this appeal. Finding no merit in the appeal, the same is hereby dismissed.

12.              The appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited the amounts of Rs.12,50,973/- as per compliance of the order of this Commission. Both these amounts with interest, if any, accrued thereon, be remitted by the registry to the respondent no.1/complainant of this appeal by way of crossed cheque/demand draft within 45 days to the extent of his entitlement. Remaining amount, if any, due shall also be paid to respondent no.1/complainant by the appellant within 45 days from the date of  receipt of the copy of this order.

13.              Arguments in this appeal were heard on 08.01.2019 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

9.                The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                       (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

 

                                                          (RAJINDER KUMAR GOYAL)

                                                                        MEMBER

                    

                                                         

January 9 ,  2019                                                                

(ravi)