PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainant has prayed that it be declared that the Opposite Party is guilty of deficiency in service and unfair trade practice as per the provisions of the Consumer Protection Act, 1986 (hereinafter refereed to as the Act). The Complainant has prayed that the Opposite Party be directed to pay Rs.10 Lacs being the sum insured of the policy. The Complainant has further prayed Rs.5 Lacs towards compensation for mental agony and stress undergone by the Complainant and cost of Rs.50,000/- towards this complaint.

2)        According to the Complainant, the Complainant’s deceased father Mr. Kishan Lal Jain obtained Individual Personal Accident Insurance Policy from the Opposite Party since long the same was renewed from time to time.  The Opposite Party lastly renewed the said policy of the period from 31/08/2008 to 30/08/2009 for the sum of Rs.10 Lacs on payment of premium of Rs.2,270/-.  The copy of the premium receipt is marked as Annexure - ‘C-1’.  It is submitted that while issuing Annexure - ‘C-1’ no terms and conditions were provided to Mr. Kishan Lal Jain.  It is alleged that on 16/03/2009 Mr. Kishan Lal Jail fell down in his bedroom resulting serious head injury and there was heavy bleeding from the head.  He was immediately admitted to Jaslok Hospital in ICU for observation and treatment and was discharge on 18/03/2009.  It is submitted that since head injury was very serious the matter was reported to Gaondevi Police Station and the police recorded the statement of Mr. Kishan Lal Jain.  The copy of the police documents are marked as Annexure - ‘C-2’ colly.  According to the Complainant thereafter Mr. Kishan Lal Jain was feeling well when he discharged from Jaslok Hospital on 18/03/2009. However, on 23/03/2009 Mr. Kishan Lal Jain accidentally fell down at his residence and suffered head injury. Immediately he was admitted in Jaslok Hospital on 23/03/2009 in un-conscious stage. From 23/03/2009 till 07/04/2009 Mr. Kishan Lal Jain was hospitalized and on 07/04/2009 he expired due to Cardio Respiratory failure. The copies of death certificate and medical papers of Jaslok Hospital are marked as Annexure - ‘C-3’ colly.    

3)        According to the Complainant, he was not aware that Mr. Kishan Lal Jain had any such insurance policy. After the sad demise of Mr. Ksihan Lal Jain when the Complainant had perused various documents relating to his father the Complainant found the copy of policy document at Annexure - ‘C-1’ in last week of June, 2009.  The Complainant immediately on 01/07/2009 addressed a letter and informed the Opposite Party about the death of Mr. Kishan Lal Jain and requested the Opposite Party to process the claim.  The copy of the Complainant’s letter dtd.01/07/2009 is marked as Annexure - ‘C-4’.  It is alleged that the Opposite Party without applying its mind with malafide intention rejected the claim vide letter dtd.28/09/2009 alleging that the death was informed late and the documents showing cause of death and Post Mortem Report were not provided to the Opposite Party.  The copy of the said letter is marked as Annexure - ‘C-5’.  It is submitted that as soon as the Complainant came to know about the policy in question he had informed the Opposite Party and there was no intentional delay in informing the Opposite Party about it. The Complainant by letter dtd.29/09/2009 requested the Opposite Party to reconsider the case of lodging of claim on account of accident claim of Mr. Kishan Lal Jain.  He had informed that Mr. Kishan Lal Jain died accidentally as stated above.  The copy of re-consideration letter dtd.14/12/2009 is marked as Annexure - ‘C-6’.  It is submitted that the Opposite Party without any justified reason again repudiated the claim by letter dtd.13/07/2010.  A copy of the said letter is marked as Annexure - ‘C-7’.  The Complainant thereafter issued legal notice dtd.07/01/2011 to the Opposite Party which was replied by the Opposite Party on 19/01/2011.  The copies of the said notices are marked as Annexure -‘C-8’ colly.   It is alleged that the act on the part of the Opposite Party being illegal and unprofessional, the Complainant has filed this complaint for the reliefs mentioned in para 1 of this order.   

4)        The Opposite Party filed written statement and contested the claim. It is contended that the Complainant is not entitled to file the present complaint. It is contended that as per the condition the Complainant was required to give written notice to the Opposite Party within 1 month after the death of Kishan Lal Jain. The true copy of the Personal Accident Policy (Individual) is marked as Exh.‘A’ to the written statement containing the terms and conditions of it.  It is further contended that the basic requirement for entertaining the claim of personal accident policy is/was the death of Insured should be accidental.  It is submitted that in the present case death being natural the claim falls beyond the scope of the policy and for which Opposite Party cannot be held liable.   

5)        It is contended that the claim in view of the condition no.2 of the policy cannot be granted.  It is submitted that by not getting the post mortem done of the body of the Insured and by giving the late intimation about the death of Insured to the Opposite Party, the Complainant has avoided a fair opportunity to the Opposite Party. It is contended that even after repudiation of the claim the Complainant approached the Opposite Party and provided some additional documents but on perusal of the said documents it was noticed that late Mr. Kishan Lal Jain was hospitalized in Jaslok Hospital on 16/03/2009 due to fall in the bed-room at his residence and the matter was reported to the police authorities.  Thereafter, he was discharged on 18/03/2009 after treatment and stitches.  It is submitted that the said hospitalization was never informed to the Opposite Party.  The police report states that the patient fell down due to giddiness and sustained injuries to his head. The inpatient summary of Jaslok Hospital shows that on 16/03/2009 the patient had sudden onset of vertigo – gait imbalance while walking and it also reveals that on 23/03/2009 the patient had similar episode i.e. vertigo followed by sudden onset, unresponsiveness. It is submitted that the discharge card of the hospitalization on 23/03/2009 shows that the word “Sat” has been struck of and the word “fall” has been written.  Even words after the fall have been inserted after the noting “C/C LOC-1/2 hr” i.e. loss of consciousness.  It is contended that the said correction bears no stamp of authorized official or even date.  It is submitted that as per the discharge card the patient was medical summary of 06/11/2009 of Dr. G.K. Singh of Jaslok Hospital which mentions that the patient Mr. Kishan Lal Jain felt giddiness on 23/03/2009 and sat down and become unconscious.  The history sheet dtd.23/03/2009 of Jaslok Hospital shows that Mr. Kishan Lal Jain felt giddy and sat down.  It is also suggested that he was suffering from convulsions and was on anti-convulsion drugs. Consultation record shows reference given for neurological evaluation and starting anti-epileptic drugs. The cause of death certificate issued by the doctor shows that immediate cause of death as cardio respiratory failure, antecedent cause as sub-arachnoids hemorrhage and other significant conditions, contributing to his death as diabetes and high blood pressure. It is submitted that nowhere is the cause of death mentioned as head injuries due to fall or even accident. 

6)        It is contended that the entire cause took place between the Complainant and the Opposite Party will reveal to this Forum that it warrants and elaborate trial of the case with examination of several witnesses.  In view of complexities of the case the case involves complications and intricacies for which the Complainant himself is responsible and therefore, this the subject matter of Civil Court and this Forum has no jurisdiction to try and entertain this complaint the complaint is therefore, is the subject matter a Civil Court.  The Opposite Party has denied the other allegations made by the Complainant and prayed for dismissal of the complaint.

7)        The Complainant has filed affidavit of evidence.  The Opposite Party has also filed affidavit of evidence of Alka Bagve, Divisional Manager of the Opposite Party.  Both the parities filed their written arguments.  We heard the oral argument of the Ld.Advocate Smt. Rashmi Manne of the Complainant and Smt. Sapna Bhuptany, Ld.Advocate for the Opposite Party.  We have perused the documents placed on record by both sides.

8)        While considering the claim made in the complaint it is necessary to be considered that the deceased Kishan Lal Jain was expired on 07/04/2009 at his home. The Complainant has lodged the claim to the Opposite Party on 01/07/2009.  In the death certificate issued by the Municipal Corporation of Greater Mumbai filed at page 24.  The cause of death are shown as under –

            A.  Cardio Respiratory failure 

            B.     Sub-arachnoids Hemorrhage.

           C.     Diabetes – Blood Pressure.   

          The Advocate for the Complainant has relied the case papers of Jaslok Hospital for the period 16/03/2009 to 18/03/2009 and for the period 23/03/2009 to 06/04/2009.  Upon going through the said case papers it cannot be considered that Kishan Lal Jain died due to accidental injury.  The Complainant has not produced medical summary report dtd.06/11/2009 of Dr. Gajendra Singh which was submitted by him to the Opposite Party vide letter dtd.14/12/2009, however, from the reply issued by the Opposite Party to the Complainant as regards the medical summary report of Dr. Gajendra Singh, dtd.06/11/2009, it appears that he had mentioned that the patient Mr. Kishan Lal Jain felt giddiness on 23/03/2009 and sat down and became unconscious. It also appears that in the said report it was mentioned that the patient was suffering from diabetic nephropathy, cardiac illness and hypertension.  In the medical paper of Jaslok Hospital for the period 23/03/2009 to 06/04/2009, it is also suggested that Mr. Kishan Lal Jain was suffering from Convulsions and he was started on anti-convulsion drugs.  The cause of death certificate nowhere mentions that the death of Kishan Lal Jain had occurred due to head injury due to fall or accident.  The police papers placed on record do not indicate that the death of the Insured has occurred because of accidental violent visible external means i.e. accident as defined to the phrase “Injury by accident”.  The objection raised by the Opposite Party that the basic requirement for entertaining the claim of personal accident in a personal accident policy must be that the death or injury should be accidental can be said legal and proper.  In our view the Complainant has not proved the said requirement to hold that Kishan Lal Jain died because of personal accident. It appears that the Opposite Party by letter dtd.13/07/2010 at Annexure-‘C-7’ has elaborately explained as to how the claim made in the complaint or lodged to the Opposite Party cannot be entertained within the purview of the terms and conditions of accidental (individual) policy.  Upon going through the documents placed on record we are of the view that the Complainant has not satisfied that the death of Kishan Lal Jain was caused due to accident only and the Opposite Party is liable to pay the claim to the Complainant after the death of Kishan Lal Jain. The submissions made by Smt. Rashmi Manne, Advocate for the Complainant relying upon the orders passed by the Additional Consumer Disputes Redressal Forum, Mumbai Suburban District in Complaint Case No.09/2011 between the parties Mr. Kiran Devaji Patel V/s.  Life Insurance Corporation of India, decided on 07/01/2014 and the order passed by this Forum in Complaint Case No.41/2011 between the parties Consumer Welfare Association V/s. National Insurance Co. Ltd., decided on 05/07/2013 in our view cannot be helpful to grant the claim in favour of the Complainant as the facts of both the cases are altogether different than the facts of present complaint. The medical opinion of Dr. M.S. Kamath placed on record by the Complainant in our view is also not anyway helpful to hold that the deceased Kishan Lal Jain died due to accidental injury only and on that count the Complainant is entitled for the claim made in this complaint.  We find that as there is ample record of the illness of the deceased Kishan Lal Jain and there are so many serious contradictions in the documents placed on record by the Complainant hence, the complaint is liable to be dismissed.  In the result the following order is passed –

O R D E R

i.        Complaint No.70/2011 dismissed with no order as to cost.

ii.       Certified copies of this order be furnished to the parties.