Present:
For the appellant : Sh. Vikas Gupta, Advocate
For respondent no. 1 : Sh. Gaurav Jindal, Advocate
For respondent no. 2 to5: Ex parte
SURINDER PAL KAUR, MEMBER
This appeal has been preferred by the appellant/complainant No.1 against the order dated 16.4.2012 passed by the District Consumer Disputes Redressal Forum, Amritsar (in short, “District Forum), vide which the complaint filed by the complainants, under Section 12 of the Consumer Protection Act, 1986, was dismissed.
- As per the allegations made in the complaint, Smt. Ramesh Kumari, wife of complainant No.1, got herself insured with the opposite party against Personal Accident Insurance, vide Cover Note no. 400806642023, for the period, 1.7.2009 to 30.6.2010 for a sum of Rs. 6,00,000/-, after making payment of premium. He is the assignee under the insurance policy. When the insured was going on rickshaw on 25.11.2009, she met with an accident. A motor cycle hit Rickshaw puller; as a result of which she fell down and suffered multiple injuries. The accident was witnessed by Keshav Chander, resident of 3A, The Mall, behind Thandi Khuhi, Opposite Ram Bagh, Amritsar. After the accident, the insured was admitted in Madaan Hospital, Amritsar and she expired on 15.12.2009 on account of injuries received by her. The Complainants submitted claim form with medical certificate in support of their claim for the insurance amount, with the opposite party. However, it put off the mater on one pretext or the other. They were asked to get Rs. 3 lakh in lump-sum but they refused, as the opposite party was liable to pay the entire amount. They received a repudiation letter on 20.9.2010, according to which their claim had already been rejected by opposite party on 21.5.2010. Before 20.9.2010 they never received any repudiation letter. Even after 21.5.2010 they visited office for enquiring about the claim but it was stated that their claim was under process and they would receive Rs. 3 lakh as lump-sum towards full and final settlement. By not making the payment of the claim under the Insurance Policy, the opposite party committed deficiency in service; as a result of which they suffered harassment and mental agony. They prayed for issuance of directions to the opposite party to pay Rs. 6,00,000/-, as insurance amount; Rs. 72,000/-, as interest; and Rs. 20,000/-, as damages along with future interest at the rate of 12% per annum from the date of complaint till the payment.
2. The complaint was contested by the opposite party, and pleaded in the written reply, that at the time of obtaining the
cover note, the age of Smt. Ramesh Kumari was described as 60 years but according to medical certificate, she was 70 years old. As such, the deceased might have fallen due to some other physical disability on account of old age etc. As per version of the complainants, Smt. Ramesh Kumari, since deceased, was going to attend Satsang in a rickshaw, and a motor cycle hit the rickshaw and its driver fled away and that rickshaw puller also ran away, but, they failed to lead any evidence to that effect in spite of the fact that accident on a busy road where chances of running away without having been noticed by some one was not possible. While denying all other allegations made in the complaint it was pleaded that neither Smt. Ramesh Kumari suffered any multiple injuries in any alleged road accident nor any accident was witnessed by Kashev Chander. Certificate obtained from the Madaan Hospital, was of no avail especially when the factum regarding multiple injuries suffered by the deceased in any alleged road accident was not proved and so much so the conduct of complaints can be well judged that Smt. Ramesh Kumari was brought to home against medical advice from the Madaan Hospital, and even otherwise, any alleged treatment in Madaan Hospital, was not having any nexus with any alleged road accident of Smt. Ramesh Kumari. No post-mortem examination was conducted on the dead body nor any Police report was lodged at any police station. It further pleaded that for raising the claim under Personal Accident Insurance Policy, the post-mortem is one of the main proof of the death of the insured being accidental. Thus, the claim of the complainant was rightly repudiated, vide letter dated 21.5.2010. They are not entitle to claim insured amount i.e Rs,6,000,00/- as alleged in the complaint. Therefore, there was no deficiency in service on its part.
3. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf dismissed the complaint, vide aforesaid order.
4. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
5. It was submitted by the counsel for complainant no.1 that the District Forum wrongly concluded that the appellant/complainants, failed to prove that the insured, Smt. Ramesh Kumari died due to road side accident . The claim submitted by the complainants could not have been repudiated merely on the ground that the post-mortem report was not produced for proving the fact that the death was accidental. He also submitted that as per the settled proposition of law the death being accidental could have been proved even in the absence of the post-mortem report and the same was done by the complainants. He further submitted that there was sufficient evidence that insured suffered injuries in roadside accident and on account of that she had died. The District Forum committed
an illegality by not giving any weightage to the evidence produced on record. Such a finding cannot be sustained and the order passed by the District Forum is liable to be set aside.
6. On the other hand, it was submitted by the learned counsel for the opposite party/respondent that District Forum rightly concluded that complainant have failed to prove on record as to what was the cause of death of Smt. Ramesh Kumari, as no post-mortem examination of deceased was got conducted by them nor any doctor from Madaan Hospital was examined to prove that Smt. Ramesh Kumari died due to injuries suffered in roadside accident. There is no ground for upsetting the well reasoned findings recorded by the District Forum.
7. Vide letter dated 21.5.2010, the claim of the complainants was repudiated on the following grounds:-
"Re: P.A. claim of SMT. RAMESH KUMARI, UNDER P.NO. 401900/42/09/8100000236
We have got your said claim investigated. Our investigator found as under :
1. The deceased/injured age about 68/70 years died on 15.12.2009 at her residence after brought by the family members against medical advise from Madaan Hospital where she was admitted on 25.11.2009.
2. As per your version, your wife met with an accident while she was going to Satsang in a rickshaw which was hit by a motor cycle which fled away and rickshaw puller had also run away.
You failed to give any evidence of accident on a busy road where chances of running without any body's notice is not possible.
3. You failed to give any evidence of accident on a busy road where chances of running without any body's notice is not possible.
4. You have also not lodged any police report with police station. Also, no action has been initiated by the hospital which is surprising. Moreover, why the rickshaw puller had run away is beyond imagination.
5. As per certificate issued by Dr. Rakesh Madaan dated 04.02.2010, the deceased left against medical advise on 15.12.2009 and not clear about the cause of death.
6. No postmortem has been conducted/arranged by the family members to authenticate the cause of death, which is necessary to ascertain the cause of death which is necessary to ascertain in P.A. cases. Even the family members have not reported the matter to police.
So, Keeping in view the said facts and there is no proof of accident on busy road, we are unable to maintain the case and have repudiated the claim which you may please note."
8. The complainants have contended that the death of the insured was accidental. For proving the same complainants proved on record affidavit of Kashev Chander as Ex.CW1/A in which he deposed that Smt. Ramesh Kumari was known to him. On 20.12.2009 she was going to attend the Satsang in rickshaw, and a motorcycle hit the rickshaw as a result of which she fell down and suffered multiple injuries. He was also going to attend the Satsang at Ram Bagh Garden known as Company Bagh, Amritsar. He informed the family members of the deceased and admitted her in Madaan Hospital in serious condition. Complainant no. 1 (Ram Gopal) also proved on record his affidavit Ex.CW2/A in which he also deposed about the facts, as alleged in the complaint. He deposed that after the accident, the insured was admitted in Madaan Hospital but could not survive and expired on 15.12.2009. No doubt, in the certificate of Madaan Hospital dated 04.02.2010, Ex.C-18, it is mentioned that on 15.12.2009 patient left the hospital against its advice but it has been clearly mentioned in the certificate that she remained admitted in that hospital in serious condition because of "road side accident." She died on the day she was discharged from the Hospital.
9. Opposite party also contended that the complainant failed to prove the postmortem/FIR report, which could be the best proof of the death of the insured with the roadside accident.
Merely, on account of non-lodging of the FIR and non-conducting the post-mortem examination on the dead body of the deceased, it cannot be concluded that her death was not as a result of accident. In 2005(1)CPC 533 (Life Insurance Company of India and Others vs. Smt. Nidhi Sahi) the case of the complainant was that death of the insured occurred in the scooter accident and her claim was mainly challenged on the ground that no FIR was lodged nor any post-mortem examination had been performed on the body of the deacased. However, the fact of the death was duly proved and was supported by statement of witness, who was pillion rider of the scooter at the time of accident. The complaint was allowed by the District Forum. In the appeal, the same was upheld on the ground that the fact of the death was duly proved. It becomes clear from that judgment that even in the absence of the FIR post-mortem report, the fact of the death in a particular way can be proved by producing other evidence.
10. In the present case also, roadside accidental death was duly proved from the affidavit of Keshav Chander i.e. (eye witness).
11. The District Forum recorded findings to the contrary against the complainant without going deep into the facts of the case and without properly appreciating and scrutinizing the evidence produced by the parties. Accordingly, the findings so recorded by it are set aside.
12. The complainants pleaded in the complaint that the deceased had got Personal Accident Insurance, vide cover note No.48066420223 for the period 01.07.2009 to 30.06.2010 for sum of Rs6,00,000/-. But as per the policy cover note the sum insured was Rs 4,00,000/- and that document was proved by the complainants themselves as Ex-C2 . The act of opposite party in withholding the insured amount i.e. Rs 4,00,000/- clearly amounts to deficiency in service on their part. The complainants suffered loss and injury on account of that deficiency in service, as they were deprived of the use of the above said amount. For that they are entitled to compensation and according to us, the interest on the said amount for the relevant period at the rate of 9% per annum shall be reasonable compensation.
13. In view of the above discussions, this appeal is allowed. The order of the District Forum is set aside and the complaint filed by the complainants is allowed. The opposite party is directed to make payment of insured amount, i.e., Rs 4,000,00/- along with interest at the rate of 9% from the date of repudiation till the date of realization. The opposite party is further directed to pay Rs.5,000/-, as litigation expenses. The complainants being the husband, sons & daughter of the deceased/insured were to succeed to her estate in eqal shares by virtue of Section 15 and 16 of the Hindu Succession Act, 1956. Accordingly, the above said amount is to be shared by the complainants in equal proportion. Compliance of this order shall be made by the OP within in one month of the receipt of the certified copy of the same.
14. The arguments in the case were heard on 06.01.2015 and the order was reserved. Now, the order be communicated to the parties.
January 22 , 2015
