Punjab

Ludhiana

CC/14/818

Surinder Kaur - Complainant(s)

Versus

National Ins.Co.Ltd - Opp.Party(s)

06 May 2015

ORDER

BEFORE THE DISTRICT   CONSUMER   DISPUTES   REDRESSAL   FORUM, LUDHIANA.

                                                                   C.C. No.818 of 28.11.2014    

                                                                   Date of Order: 06.05.2015

Surinder Kaur wife of late Avtar Singh, ward No.10, Durlabh Nagar, 255, Behind Gurdwara Vishavkarma, Tehsil Samrala, District Ludhiana.

                                                                             ....Complainant.

Versus

National Insurance Company Ltd., B.O.Samrala, District Ludhiana through Branch Manager.

                                                                             ….Opposite party

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

Quorum:-

                   Sh.R.L.Ahuja, President.

                   Ms.Babita, Member.

                  

Present:-     Sh.M.S.Sethi, Advocate for the complainant.

                   Sh.Rajeev Abhi, Advocate for the OP.                                   

O R D E R

R.L.AHUJA, PRESIDENT:

 

1.                Earlier, a complaint bearing No.646 dated 19.10.2007 was filed by the complainant before this Fora, which was disposed off vide order dated 19.9.2008 of this Forum and against the said order, an Appeal No.1243 of 2008 was filed by the complainant before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, which was allowed by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh vide order dated 29.11.2012 and order dated 19.9.2008 passed by this Forum had been set-aside and the respondent insurance company was directed to pay the appellant, the sum assured i.e. Rs.5 lakh alongwith interest @6% p.a. from the date of filing of the claim i.e. 18.10.2006 till its realization within two months from the date of receipt of the copy of this order. Thereafter, feeling aggrieved with the aforesaid order of Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, the respondent/OP National Insurance Company Limited had preferred the Revision Petition before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi and Hon’ble National Consumer Disputes Redressal Commission, New Delhi had allowed the revision petition and partly set-aside the impugned order dated 29.11.2012 passed by the Hon’ble State Commission in First Appeal No.1243 of 2008-Surinder Kaur vs. National Insurance Co.Ltd. and the matter was remanded back to this Fora to decide it on merits on the basis of material available on record and order of District Forum directing the complainant to approach the Civil Court had been set-aside. Pursuant to which, the present complaint has been re-registered.

2.                In brief, the case of the complaint is that Sh.Avtar Singh, husband of the complainant had obtained Janta Personal Accident Insurance Policy for Rs.5 lakh vide policy No.CHRO400000/0152913 dated 6.4.1997 by paying premium of Rs.1650/- and got insured for the period w.e.f.8.4.1997 to 7.4.2009. Unfortunately, on 22.7.2006, while Sh.Avtar Singh was driving the scooter bearing registration No.PJI-5561B, got collided with motor cycle at Samrala on Chandigarh highway near office of Dr.Sohan Lal Blaggan. Nearby shopkeepers took the injured Avtar Singh to Dr.Sohan Lal, who referred him to J.P.Scan, Khanna, where he was taken for scanning and after getting CT scan done, when they came back to Samrala, Sh.Avtar Singh breathed his last. Death in such mishap of her husband namely Sh.Avtar Singh was intimated to OP vide letter dated 18.10.2006. OP vide letter dated 18.11.2006, sought reasons of delay of intimation of the accident as well as for not lodging the FIR and conducting the post-mortem. Said communication was answered by the complainant on 2.11.2006, explaining the reasons of delay in lodging the claim and also reasons of not lodging the FIR or getting the post-mortem done. FIR was not lodged and post-mortem was not conducted as the complainant lost her mental stability knowing about sudden death of her husband and did not know that lodging of FIR was necessary. Op then referred the claim to investigator namely Sh.R.S.Ahluwalia, who rejected the claim on the ground that no FIR qua accident was lodged, neither post-mortem of the deceased was conducted, so cause of death in accident is not proved. This repudiation letter dated 30.3.2007 of the OP is claimed to be null, void, wrong and illegal. Hence, by filing the present complaint, the complainant has prayed that Op be directed to set-aside the repudiation letter dated 30.3.2007 and to pay Rs.5 lakh as per term/condition of the policy alongwith interest @18% till realization besides Rs.1 lakh as compensation and Rs.15,000/- as litigation expenses to the complainant.

3.                Upon notice of the complaint, Op was duly served and appeared through Sh.Rajeev Abhi, Advocate and filed the written reply, in which, it has been mentioned in the preliminary objections that the present complaint is barred u/s 26 of the Consumer Protection Act. The Hon’ble District Consumer Disputes Redressal Forum, Ludhiana has got no jurisdiction to try and decide the present complaint and the present complaint is not maintainable since immediately on the receipt of the claim vide letter dated 11.10.2006 sent through registered post on 17.10.2006 and delivered to the answering OP on 18.10.2006, it was duly registered, entertained and processed. The answering OP vide its letter dated 18.10.2006 had called upon the complainant to inform the reasons of late lodging of the claim when the death has occurred on 22.7.2006. The complainant was further called upon that the intimation letter did not give the detail reason of death and as such, the complainant is called upon to give explanation of delay regarding intimation and cause of death and other documents required by processing of the claim. The complainant has failed to give the reply to the said letter. Sh.R.S.Ahluwalia was appointed as investigator to investigate the claim pertaining to death of Avtar Singh. The said investigator made the thorough investigation and prepared his report and submitted the same with the answering OP on 2.3.2007 alongwith the documents annexed with the report. After going through the investigation report of Sh.R.S.Ahluwalia and after scrutinizing the documents placed in the claim file and after applying the mind by the officials of the answering OP in terms of the insurance policy, the claim of the complainant was repudiated as ‘No Claim’ vide letter of the answering OP on 30.3.2007 on the grounds that the claim pertaining to the death of Avtar Singh is not covered under the Janta Personal Accident Insurance Policy and that the complainant has violated condition No.1 of the insurance policy and that the death of Avtar Singh has not occurred due to accident, as reported by the investigator R.S.Ahluwalia. Further, the present complaint is not maintainable since the claim of the complainant do not fall within the purview of the insurance policy obtained by Avtar Singh and the complainant is stopped by her own act and conduct from filing the present complaint since the complainant is not coming to this District Forum with clean hands and had concealed the material facts from this District Forum. The present complaint is bad for non-joinder of necessary party since all the legal heirs of deceased Avtar Singh are not impleaded as party to the present complaint. On merits, the fact regarding obtaining of the insurance policy as alleged is not denied. However, it is denied that the husband of the complainant while driving the scooter met with an accident with a motor cycle on 22.7.2006 at Samrala and then was taken to Dr.Sohan Lal Balagon who referred him to J.P.Scan Centre, Khanna. This story is claimed to be concocted, false and frivolous. Further, it is submitted that no head injury was suffered by the husband of the complainant in any such alleged accident. Neither any police report qua accident was lodged nor post-mortem of the dead body was got conducted. Sh.Avtar Singh never died due to injuries suffered in a road accident. Further, it is submitted that claim qua the death of Sh.Avtar Singh was not lodged within one month from the date of death. Further, it is submitted that as death of Sh.Avtar Singh is not proved to be caused in an accident, whereas, under the policy, answering OP was liable to pay the insured amount in case of death of insured proved to be caused in an accident. But there was no accidental death of the policy holder. There is no deficiency in service on the part of the answering OP. Otherwise, similar pleas were taken as mentioned in the preliminary objections and at the end, denying all other allegations of the complainant being wrong and incorrect, answering OP made prayer for the dismissal of the complaint with costs.

4.                Both the parties adduced their evidence in the form of their sworn affidavits and documents.

5.                We have heard the learned counsel for the parties.

6.                Learned counsel for the complainant has filed the written arguments, in which, he has reiterated all the contents of the complaint filed by the complainant and further, it has been submitted that in this case, the claim was repudiated by the OP on the ground that claim was rightly repudiated by the petitioner company because of violation of policy condition and the complainant could not prove the death of the deceased insured due to accident. Intimation was given after almost three months of the accident which is not only violation of condition no.1 but because of delay, the petitioner company was not given an opportunity to investigate the case specifically when no FIR was registered and no post-mortem was conducted. In this respect, it is stated that claim was illegally and arbitrarily repudiated by the OP company in the shelter of violation of so called policy condition. Against the objection, it is submitted that firstly, the complainant takes the objection in its complaint under para no.1 of the ground that no term and condition of the policy regarding such limitation was got signed from the deceased which are otherwise printed form so same cannot be relied upon and in para 2 of the grounds of the complaint that otherwise, said term/condition for giving information regarding death and lodging of claim are directory and not mandatory so claim after giving clarification by the complainant cannot be made the ground of repudiation of claim. Further, in the present case, the petitioner has taken the shelter of condition no.1 which relates to intimation or lodging of claim by the insured but in this case, the insured Avtar Singh himself died in the accident, so said condition no.1 is nowhere applicable in the case of death of the insured. Further, regarding giving of late information to the insurance company, it is submitted that against the letter dated 18.10.2006 of the insurance company, it was already disclosed in para 6 of the complaint that vide letter dated 17.10.2006, it was disclosed/explained all the circumstances for delaying the matter in lodging claim on ground that due to sudden death of the husband, she lost mental stability for many days and there was no male person left in the family after the death of husband and when she was clearing the documents in the house, she found insurance policy owned by her deceased husband. So, there is no delay in informing the insurance company. Death was proved due to accident injury as per certificate dated 22.7.2008 of Dr.Sohan Lal Blaggon was taken by the OP insurance company. Further, learned counsel for the complainant has made reference of the documents produced by the complainant in her evidence. Further, learned counsel for the complainant has relied upon judgments titled as National Insurance Co.Ltd. vs. B.Venkataswamy-2014(2)CPC-137(N.C.); National Insurance Co.Ltd. vs. Kulwant Singh-IV(2014)CPJ-62(N.C.); Oriental Insurance Co.Ltd. vs. Chhattisgarh State Power Holding Co.Ltd.-2012(2)CPC-510(N.C.); Reliance General Insurance Co.Ltd. vs. Sri Avvn Ganesh-2012(1)CPC-681(N.C.); Bharti Axa General Insurance Company Limited vs. Parminder Kaur and anothers-First Appeal No.1662 of 2014-decided on 13.1.2015(State Commission) and Narinder Kaur Walia and another vs. United India Insurance Company Limited-First Appeal No.258 of 2012-decided on 16.10.2014(State Commission).

7.                On the other hand, learned counsel for the OP has filed the written arguments, in which, he has reiterated all the contents of the written reply filed by the OP and further, it has been submitted under the head of “Points of Arguments” that the insurance policy is a contract in itself and the parties to the contract of insurance are bound by the terms and conditions of the policy. The deceased Avtar Singh had died on 22.7.2006, whereas, the claim was reported vide letter dated 11.10.2006 sent through registered post on 17.10.2006 and delivered to OP on 18.10.2006. Thereafter, it was registered in the records of the OP. The complainant was bound to lodge the claim forthwith. There is as such, delay of 87 days in lodging the claim which amounts to violation of condition no.1 of the policy. It is also one of the condition in the policy that in case of death, written notice must be so given to the OP to be interment cremation but no such notice had been given. So, it is violation of the terms and conditions of the policy. The OP vide its letter dated 18.10.2006 had called upon the complainant to inform the reasons of late lodging of the claim when the death had occurred on 22.7.2006. The complainant has failed to give any reply to the said letter. Deceased Avtar Singh had obtained the policy which covers the death solely and directly from accident caused by external violent and visible means. The onus to prove that the death is due to accident as referred above in order to fall the claim within the ambit of the policy is upon the complainant, which the complainant failed to prove. Further, no report qua the accident was lodged with the police and after the death, the post-mortem was not got conducted. So, the death in accident or caused by some other reasons not proved. The complainant has failed to prove that Avtar Singh died due to injuries suffered in accident. FIR and postmortem are pre-requisite to prove the accident and death and no FIR has been lodged. No postmortem has been conducted on the body of the deceased. However, no documents have been placed on record nor certificate of any doctor to show that the complainant had received the injuries in an accident which were sufficient to cause death. The certificate of Dr.Sohan Lal Bilagan and report of J.P.Scan do not prove that injuries are due to accident or that the deceased died due to injuries received in the accident. Since the death of the deceased Avtar Singh is not proved as per requirement of the policy solely and directly from the accident caused by external violent and visible means and as such, the claim of deceased Avtar Singh do not fall within the purview and ambit of terms and conditions of the policy. The claim had been rightly repudiated as ‘No Claim’. Further, learned counsel for the OP has made reference of all the relevant documents relied upon by OP in the evidence. Further, learned counsel for the OP has relied upon judgments titled as Life Insurance Corporation of India vs. N.Shanker Reddy-IV(2013)CPJ-297(N.C.); Iffco Tokio General Insurance Co.Ltd vs. Boddeda Satyavathi-II(2014)CPJ-135(N.C.); United India Insurance Co.Ltd. vs. P.M.Nagesh Nayak-II(2014)CPJ-388(N.C.); Rakesh Sinha vs. New India Assurance Co.Ltd.-III(2013)CPJ-223(N.C.); New India Assurance Co.Ltd. vs. New India Assurance Co.Ltd.-I(2014)CPJ-29(N.C.); New India Assurance Co.Ltd. vs. Maha Singh-III(2014)CPJ-204(N.C.); Kuldeep Singh vs. Iffco Tokio General Insurance Co.Ltd.-II(2013)CPJ-189(N.C.); Swift Ltd. vs. New India Assurance Co.Ltd.-IV(2012)CPJ-148(N.C.) and  New India Assurance Co.Ltd. vs. Deepak Anand-III(2014)CPJ-373(N.C.).

8.                We have gone through the written arguments alongwith judgments placed on record by learned counsel for both the parties and have also perused the documents on record very carefully.

9.                Perusal of the record reveals that it is an undisputed fact between the parties that husband of the complainant namely Sh.Avtar Singh(since deceased) had obtained Janta Personal Accident Insurance Policy for Rs.5 lakh vide policy No.CHRO400000/0152913 dated 6.4.1997 by paying premium of Rs.1650/- and had got insured for the period w.e.f.8.4.1997 to 7.4.2009. As per the allegations of the complainant that on 22.7.2006, husband of the complainant Sh.Avtar Singh while driving the scooter bearing registration No.PJI-5561B(Bajaj Chetak) had got collided with motor cycle at Samrala on Chandigarh highway near office of Dr.Sohan Lal Blaggan. Nearby shopkeepers had brought the injured to Dr.Sohan Lal Blaggan, who firstly advised scan and referred to the injured to J.P.Scan, Khanna, where he was taken for scanning and after getting CT scan done, when they back to Samrala, Sh.Avtar Singh expired on the way and due intimation was given to the OP and the claim was lodged. On the other hand, there is specific plea of the OP that husband of the complainant did not met with an accident with motor cycle on 22.7.2006 at Samrala and then was taken to Dr.Sohan Lal Balagan who referred him to J.P.Scan Centre, Khanna and this story is claimed to be concocted, false and frivolous. No head injury was suffered by the husband of the complainant in any such alleged accident. Neither any police report qua accident was lodged nor post-mortem of the dead body was got conducted. Sh.Avtar Singh never died due to injuries suffered in a road accident. The claim qua the death of Sh.Avtar Singh was not lodged within one month from the date of death and the death of Sh.Avtar Singh is not proved to be caused in an accident, whereas, under the policy, OP was liable to pay the insured amount in case of death of insured proved to be caused in an accident. But there was no accidental death of the policy holder. The claim was rightly repudiated by the OP vide letter dated 30.3.2007.

10.              Perusal of the evidence of the complainant reveals that the complainant had furnished her affidavit as Ex.CW1/A and also proved on record the documents Ex.C1 copy of death certificate of her husband Sh.Avtar Singh, Ex.C2 copy of certificate dated 22.7.2006 issued by Dr.Sohan Lal Blaggan, vide which, he had certified that Mr.Avtar Singh s/o S.Bahadur Singh r/o Samrala came to his clinic dated 22.7.2006 at 2 P.M.. He had a head injury, so for further investigation, he referred him to J.P.Scan Centre, Khanna. Further, the complainant has placed on record document Ex.C3 copy of Radiography/NCCT Brain Report issued by J.P.Scan Centre, Khanna on 22.7.2006, vide which, they had given impression that SDH right fronto-temporo-parietal region with gross midline shift. Further, it was reported that kindly correlate clinically and with other investigations to reach at a final diagnosis. Thereafter, the complainant furnished documents Ex.C4 to Ex.C8 i.e. photocopies of affidavits of Sh.Sukhwinder Singh,  Sh.Gurwinder Singh, Sh.Subhash Chander, Sh.Vinod Kumar and Sh.Mohinder Singh, vide which, they had deposed that Sh.Avtar Singh s/o Sh.Bahadur Singh r/o Ward No.10, Samrala, District Ludhiana was doing the business of spare parts shop at Chandigarh Road, Samrala. They had further deposed that a road accident took place on 22.7.2006 near the shop of Dr.Sohan Lal Blaggan of Samrala on Chandigarh Road, at Samrala and in that road accident, Mr.Avtar Singh was seriously injured due to head injuries and he was taken to Khanna for scanning purpose but on return, he died on the way. The rider of motor cycle ran away from the spot by injuring Mr.Avtar Singh and he was not found. Mr.Avtar Singh had died due to grievous head injuries due to the said road accident. His death was sudden and due to accident and they had seen him injured and also seen his dead body. Further, complainant has relied upon documents Ex.C9 copy of insurance policy in question, Ex.C10 copy of repudiation letter dated 30.3.2007, Ex.C11 copy of letter written by the complainant to the Branch Manager, Chandigarh Road, Samrala regarding intimation qua accident of Sh.Avtar Singh. Further the complainant has relied upon document Ex.C14 copy of affidavit of Dr.Sohan Lal Blaggan, in which, he has stated that the accident took place on 22.7.2006 nearby his shop, in which, Mr.Avtar Singh suffered serious injuries, who brought upon his clinic.

11.              On the other hand, OP has furnished the affidavit of Sh.A.S.Namdhari, Sr.Divisional Manager of National Insurance Co.Ltd., Ludhiana as Ex.RW1/A and affidavit Ex.RW2/A of Sh.R.S.Ahluwalia, who was appointed as investigator by the OP to investigate the factum of death of Avtar Singh. Further, OP has relied upon documents Ex.R1 copy of letter sent by the complainant to the Branch Manager of OP to pay the death claim against the policy, Ex.R2 copy of investigation report of Sh.R.S.Ahluwalia, Ex.R3 copy of insurance policy in question, Ex.R4 copy of Ration Card of Sh.Avtar Singh, Ex.R5 copy of death certificate of Sh.Avtar Singh, Ex.R6 cop of letter dated 31.1.2007 issued by the complainant to the OP, Ex.R7 copy of repudiation letter dated 30.3.2007 and Ex.R8 copy of letter dated 18.10.2006 issued by the Branch Manager of OP to the complainant.

12.              Perusal of investigation report Ex.R2 reveals that Sh.R.S.Ahluwalia, investigator had made his thorough investigation and recorded the statements of certain persons named in his report. He had also made reference of visit of Sh.Avtar Singh to the clinic of Dr.Sohan Lal Bilagan GAMS. He had also visited the J.P.Scan Centre, Khanna. But while concluding his report, he had given his opinion that after careful study of the case, visit to Samrala, statements of the witnesses, visit to Dr.Sohan Lal Bilagan, visit to J.P.Citi Scan Centre, Khanna, they have not been able to get any solid proof to determine, whether Avtar Singh really met with an accident. Had it been so, he should have been taken to some hospital in Ludhiana or at least to Civil Hospital, Samrala. Police was also not informed regarding the accident. It is mandatory that in case of accident, police has to be informed and in case of death due to accident, police get the post mortem conducted. In this case, neither the police was informed nor the postmortem was done. Under these circumstances, it cannot be determined, whether Avtar Singh died due to road accident or due to some other problems. Keeping in view the abovementioned facts, the underwriters should decide about the claim as per the requirements of the policy conditions.

13.              So, it is proved fact on record that husband of the complainant namely Sh.Avtar Singh suffered a head injury on his person, which was recorded by the Dr.Sohan Lal Bilagan in his certificate Ex.C2 and referred the injured Sh.Avtar Singh to J.P.Scan Centre, Khanna for scanning, who had also given his report dated 22.7.2006 Ex.C3 to the effect that SDH right fronto-temporo-parietal region with gross midline shift and advised to correlate clinically. The complainant has relied upon these reports in her evidence. But the complainant has not placed on record any copy of FIR and post-mortem report or any other letter or representation which was ever made by her to any other party except OP regarding the death of her husband in a road accident. Further, certificate Ex.C2 of Dr.Sohan Lal Blaggan does not specify that the deceased Avtar Singh received a head injury in the road accident. Though, later on vide his affidavit dated 7.4.2008 Ex.C14, he had deposed that the deceased Avtar Singh had suffered a head injury in a road accident. However, perusal of the investigation report Ex.R2, on the basis of which, the OP had repudiated the claim of the complainant reveals that the investigator had not explained the reasons of suffering head injury on the person of the deceased Sh.Avtar Singh, whether the same was suffered by him in a road accident or it was a self inflicted injury or it was a result of a fall of a person on a hard surface under any fits. So, it appears that report of the investigator Ex.R2 is not sufficient in order to decline the claim of the complainant on the basis of which, OP had repudiated the claim of the complainant.

14.              In view of the above discussion, we hereby partly allow this complaint and direct the OP to appoint an another investigator with a specific direction to inquire and report about the cause of head injury on the person of the deceased Sh.Avtar Singh, on the basis of the record which was made available by the complainant to the investigator and the witnesses whose statements were recorded by the investigator Sh.R.S.Ahluwalia and further, to make an inquiry from the nearby shopkeepers to the place of occurrence. OP is further directed to consider the report of the investigator and thereafter, to settle and pay the claim of the complainant, within 30 days from the date of receipt of copy of this order, if the same is payable as per the terms and conditions of the insurance policy. Further, OP is directed to pay Rs.5000/-(five thousand only) as litigation expenses to the complainant. Keeping in view the facts and circumstances of the present case, no order as to compensation is passed. Compliance of order qua litigation costs be also complied within 30 days from the date of receipt of copy of this order which be made available to the parties free of cost and thereafter, file be consigned to the record room.

 

 (Babita)                                         (R.L.Ahuja)

 Member                                         President

Announced in Open Forum

Dated: 06.05.2015

Gurpreet Sharma.