Hon’ble Mrs. Dipa Sen (Maity), Presding Member
The instant Appeal has arisen out of the Final Order dated 10.09.2018 passed by the Ld. DCDRF, Kolkata, Unit-II whereby the Ld. Forum below has dismissed the same on contest against the Opposite Parties. Being aggrieved by the said order the Complainants/Appellants have filed the present appeal challenging the order passed by the Ld. DCDRF, Kolkata, Unit-II.
Brief fact of the complaint case is that one Appa Rao since deceased, during his life time has taken a Group Janata Personal Accident Insurance Policy being No. 100300/47/01/9600022/04/96/30026 from the National Insurance Company/Opposite Party Nos. 1 & 2 on 15.04.2004. The said policy was valid till midnight of 14.04.2019. The present Complainants/Appellants Smt. Tulshi Devi, Mavuru Usharani, Mavuru Arati are the legal heirs of deceased Appa Rao. During valid period of the said policy Appa Rao was unconsciously lying near his house on 15.10.2007 and the Complainants shifted him to Bhatpara State General Hospital with the help of neighbors and the attending Doctor declared him “brought dead”. The Hospital Authority informed the death intimation to the local Police Station, Jagaddal and sent the dead body for post mortem examination. The Autopsy Surgeon has opined that the cause of death of Appa Rao due to effect of poisoning and anti-mortem in nature and the viscera was kept reserved for FSL report. Autopsy Surgeon opined that the cause of death of Appa Rao was due to effect of poisoning and antimortem in nature. One UD case being no. 124 of 2007 dated 15-10-2007 was started regarding unnatural death of Appa Rao. The present Appellants/Complainants on 28.05.2009 lodged one accident benefit claim to the Opposite Party No.2/Insurance Company through their Corporate Agent/ Opposite Party No.3 and Opposite Party No.3/the Manager, Golden Trust Financial Service forwarded the same to the Opposite Party No. 2 on 29.05.2009. Dr. B. Chowdhury, Sr. Scientific Officer of Forensic Science Laboratory (FSL), Govt. of W.B., after conducting viscera examination prepared a report. Jagaddal Police Station submitted final report before the Ld. ACJM, Barrackpore, regarding unnatural death of Appa Rao. The present Appellants/Complainants submitted all relevant documents with claim form to the Opposite Party/Insurance Company but the Opposite Party did not settle the said claim and arbitrarily repudiated the said claim vide letter dated 24.08.2016. Such act of the Insurance company amounts to deficiency of service and the Complainants ultimately compelled to send a legal notice to the Opposite Party/Insurance Company directing them to settle their legitimate claim. But in spite of that Opposite Parties did not take any step and without finding any other alternatives the Complainants appear before the Ld. Forum below praying for reliefs as mentioned in the prayer portion of petition of complaint. After considering the submissions of both parties and on perusal of materials on record on 10-09-2018 Ld. Forum below was pleased to dismiss the case on contest.
Being aggrieved and dissatisfied with the above order of the Ld. Forum below the Appellants/Complainants preferred the present Appeal on various grounds. It has been categorically contended in the Memorandum of Appeal that the Ld. Forum below has made a gross mistake and failed to apply its judicial mind in interpreting and appreciating the content of the documents and averments filed by the Applicants/Complainants and dismissed the complaint without proper application of mind and arrived at a wrong conclusion. The impugned Judgment is based on misinterpretation of the documents of post mortem report No.124/2007 dated 15-10-2007 and FSL test report dated 23-08-2011 of Dr. B.Chowdhury, Senior Scientific Officer of Forensic Science Laboratory, Government of West Bengal i.e. “no poison could be detected either in viscera or in the blood of deceased Appa Rao being Report No.1997 FSL/Tox/3604/07 dated 23.08.2011”. The Ld. Counsel for Complainants further submitted and argued that as per the post mortem report No.124 of 2007 dated 15-10-2007 where the autopsy surgeon opined that “the cause of death in my opinion was due to the effect of poisoning antimortem in nature. However, the final and further opinion as after identification of poison will be given on receipt of FSL, Test report”. Accordingly, Local Jagaddal Police Station reserved viscera of deceased Appa Rao and sent to the office of the director, Forensic Science Laboratory, Govt. of West Bengal, Kolkata for FSL examination. The local Police Station started on U/D case No. 124 of 2007 for investigation of unnatural death. Accordingly, on 28-05-2009 Appellants/Complainants have lodged an accident benefit claim regarding unnatural death of said Appa Rao against Janata Personal Accident Policy. The Appellants/Complainants sent several letter on 07-12-2009, 19-02-2010, 10-05-2010 and 26-05-2011 and thereby requested for final police report and FSL test report. In reply on 22-07-2011 the police informed through its letter to the Respondent No.3 that “U/D case No. 124 of 2007 dated 15-10-2007 was registered and this U/D case ended in final report finding no foul play”. The Appellants/Complainants wrote letter to the Deputy Commissioner of Police(H.Q)and SPIO, Barrackpore Commissionerate. In response to that through a letter dated 27-12-2013 Barrackpore Commissionerate informed that a report of O.C, Jagaddal Police Station was enclosed for their information through letter dated 25-12-2013. On the basis of FSL report dated 23-08-2011 of Dr. B. Chaowdhury, Senior Scientific Officer, of Forensic Science Laboratory, Govt. of West Bengal, the final FSL report submitted by Dr. Dulal Krishna Das, reemployed MOML Doctor B. N. Bose S.D Hospital, Barrackpore, North 24 Pgs. has prepared one final FSL report on 28-02-2014. In that report Dr. Dulal Kirshna opined that his previous opinion stands “……, the cause of said Appa Rao since deceased due to the effect of poisoning”. The Appellants/Complainants have further submitted that the local P.S-Jagaddal submitted their final report before the Ld. CJM, Barrackpore on 04-10-2015 in respect of unnatural death of deceased Appa Rao. The Appellants/Complainants on receiving final FSL report dated 28-02-2014 of Dr. Dulal Krishna Das immediately forwarded the said documents through a letter dated 23-04-2014 to the Respondents/Opposite Party Nos.1 & 2. Accordingly, the concerned Jagaddal Police Station, Barrackpore submitted their Final Report before the Ld. CJM, Barrackpore on 04-10-2015. The Complainant waited till 22-08-2016 but nothing has been done by the Opposite Party Nos. 1 & 2/Respondents. Thereafter, on 24-08-2016 Opposite Party Nos. 1 & 2/Respondents repudiated the claim unethically on flimsy ground and the Complainant compelled to appear before the Ld. Forum below. The Ld. Counsel further argued and submitted that the impugned Judgment of the trial forum below was based on misinterpretation of the document of post mortem report No.124/07 dated 15-10-2007 and FSL Test Report dated 23-08-2011 of Dr. B.Chowdhury. Trial Forum below has observed that the cause of death has been stated/mentioned to be unknown and neither due to suicide nor administration of poison and was erred in holding that there is no document and the cause of death of Appa Rao is not covered by the insurance company and they have no deficiency in service in repudiating the claim. The Appellant has filed one case law of the Hon’ble National Commission, V A Tech Wabag Ltd. Vs. Cholamandalam Ms. General Insurance Co. Ltd.
Ld. Counsel for the Respondent Nos.1 & 2 has submitted that the Complainant is barred by limitation and Appellants/Complainants intimated about the death but no cause was mentioned in the intimation. The wife of the deceased submitted in a statement that her husband and his other colleagues had been to Kolkata to enjoy a party at late night and his dead body was found lying in front of her house. Complainants/Appellants tried to make out the case that the death of Appa Rao was caused due to accident by administering of poison by any third party. But the viscera report does not show existent of any poison and the cause of death has been stated by the police to be unknown. The Opposite Party Nos. 1 & 2 /Respondents have no deficiency in service and the case should be dismissed. Opposite Party No.3/Respondent No.3 has submitted that as per the terms of the Memorandum of understanding the Opposite Party No.2/Respondent No.2 has an exclusive right and authority to settle the claim. Opposite Party No.3/ Respondent No.3 has no role to play in this regard. Appellants/Complainants have no consumer under Opposite Party No.3/Respondent No.3.
Having heard the Ld. Counsels for both parties and on perusal of materials on records including the Final Order/Judgment passed by the Ld. Forum below it appears to us that the main issue which is required to be considered is whether the case is barred by limitation and whether the death claim of Appa Rao can be covered by the Insurance Policy or not and whether the Opposite Party/Insurance Company has deficiency in rendering service or not.
The Ld. Forum below has stated in their observation that the claim was decided as “no claim” by the Opposite Party/Insurance Company on 24-08-2016. But according to Opposite Party Nos. 1 & 2 the claims of the Complainants repudiated on 25-01-2012. But the Opposite Party Nos.1 & 2 neither filed any postal registration receipts not produced any delivery acknowledgement in respect of said purported repudiation letter. The case was finally repudiated by the insurance company on 24-08-2016 and the Ld. Forum below rightly hold the view that as the complaint is filed within two years the complaint is not barred by limitation.
It appears from the scrutiny of record that the Barrackpore Commissionerate by letter dated 27-12-2013 informed that the report of O.C, Jagaddal, Police Station enclosed information vide letter dated 25-12-2013. It also appears that on the basis of FSL report dated 23-08-2011 one final FSL report was submitted by Dr. Dulal Krishna Das on 28-02-2014. In that final FSL report Dr. Dulal Krishna Das has opined that, “…….the cause of the said Appa Rao since deceased due to the effect of poisoning” (Annexure–L, in page No.50). Assistant Inspector-In-charge, Jagaddal Police Station on 15-10-2007 has filed one report prepared by Bikash Chandra Biswas where the cause of death is mentioned as “unknown” but from the copy of police report “To whom with concern” submitted by Sanat Kumar Naskar, S.I, Jagaddal Police Station dated 23-07-2014 forwarded by Officer-in-charge on the same date wherefrom it appears that during enquiry it revealed that the death of Appa Rao was due to the effect of poisoning as per opinion of Dr. Dulal Krishna Das. It also appears from perusal of letter dated 18-12-2015 (Annexure No.Q) of Insurance Company that the Insurance Company has wrongly considered three reasons for non-detection of poison. On perusal of the copy of the said report (Annexure-L) it appears that Dr. Dulal Krishan Das, reemployed MOML has opined that the cause of death due to the effect of poisoning. The Appellants/Complainants have stated in their Memorandum of Appeal supported by evidence by affidavit that the Jagaddal Police Station, Barrackpore has submitted their final report before the Ld. CJM, Barrackpore. It clearly appears that as per demand of the Respondent No.2 on 18-12-2015 the Appellants/Complainants has already submitted a copy of the said final report to them. The Appellants/Complainants after submission of all relevant documents with claim form on 23-04-2014 waited till 22-08-2016 and thereafter on 24-08-2016 the Respondent No.2 Insurance Company arbitrarily repudiated genuine claim of the Complainants.
It further appears that the Ld. Forum below did not consider final FSL clinical report of Dr. Dulal Krishna Das where the cause of death was considered as poisoning and the Ld. Forum below is erred in considering that the death of Appa Rao is due to any other reason which is not covered under the coverage of Insurance Policy, whereas in the previous police report dated 15-10-2007 it has been mentioned as “unknown”. In the said report it has been also mentioned that the report of chemical examination is still awaiting. But the final police report which has been submitted by Mr. Sanat Kumar Naskar, S.I, Jagaddal Police Station dated 23-07-2014 forwarded by Officer-in-charge on the same date wherefrom it appears that during enquiry it revealed that the death of Appa Rao was due to the effect of poisoning as per opinion of Dr. Dulal Krishna Das. Moreover, it also appears from the scrutiny of record (Annexure No.A, Page No.48) that the Officer-in-charge, Jagaddal Police Station has filed report of Dr. B.Chowdhury before the ADJ, Barrackpore. As such, it can be said there was an existence of specific case regarding unnatural death of Appa Rao.
In view of the above all discussions it can be said that the cause of death of Appa Rao is due to “effect of poisoning”. Hence, it cannot be concluded that the Appa Rao has committed suicide and cannot come within the coverage of Insurance Policy. Moreover, we can say that there are ample chances that death of Appa Rao may happen due to murder. As such it can be considered that there is an ambiguity regarding death of Appa Rao.
In a case III (2008)CPJ 120 (NC), between Maya Devi Vs. Life Insurance Corporation of India, the Hon’ble National Commission has decided that every murder comes under the definition of accidents and hence, the Complainant is entitled to get the accident benefit under the policy. In that case it has been also decided that “even the willful murder” of the life assured is an accident, so far as the victim is concerned. An injury caused by willful or even criminal act of a third person is to be recorded as accidental for the purpose of the insurance policy. In a case VA Tach Wabag Limited Vs. Cholamandalam Ms. General Insurance Company Ltd. the Hon’ble National Commission has already decided if there is an ambiguity it should be resolved in favour the claimant.
The insurance policy between the insurer and the insured represent the contract between the parties. The deceased Appa Rao has paid one time premium and the Opposite Party Insurance Company issued Janata Personal Accident Policy and the said policy was valid till midnight of 14th April, 2019 and his sudden unnatural death neither be considered as suicide nor self-administration of poison as his such accidental/unnatural/sudden death can be considered as an accident and well covered under this policy. As such, the Insurance Company is liable to deficiency in service.
In view of the above discussion we have no hesitation to come to conclusion that the Ld. Forum below has failed to appreciate the final police report and the chemical investigation report and dismissed the case wrongfully.
Accordingly, the impugned order is hereby set-aside.
Appeal No.865/2018 is allowed on contest with the following directions:-
The Opposite Party Nos.1 & 2/Insurance Company is directed to pay the claim amount of Rs.3,00,000/- (Rupees Three Lakhs) along with interest @9% p.a. from the date of repudiation i.e. 24-08-2016 till its actual realisaiton within sixty days from the date of communication of this Judgment. The Opposite Party Nos.1 & 2/Insurance Company is further directed to pay Rs.75,000/-(Rupees Seventy five thousand) only as compensation for their mental agony and harassment etc. along with litigation charges to the tune of Rs.25,000/-(Rupees Twenty five thousand) only.
The office is directed to send a certified copy of this order to the parties free of cost as per rules.
Pending applications if any, also hereby disposed of.
Accordingly, the Appeal stands disposed of.
Note accordingly.
