Delhi

North

CC/85/2022

MS. BHIWANI DEVI - Complainant(s)

Versus

ORIENTAL INSURANCE COMPANY LIMITED - Opp.Party(s)

12 Nov 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.:85/2022

 

In the matter of:-

 

Ms. Bhiwani Devi

W/o Sh. Basant Lal,

V/11/C, T Hatam Railway Crossing,

Chowki 4, Azadpur,

Delhi-110033.                                                         …                Complainant

 

                                                          Vs

 

The Oriental Insurance Co. Ltd.

Oriental House, A-25/27,

Asaf Ali Road, Delhi-110002.

 

Also at:

Regional office-I, (TP Hub),

F-14 & F-20, United India Life Bldg.,

Connaught Circus,

New Delhi-110001.                                                …                          Opposite Party

 

 

ORDER

12/11/2024

 

Ashwani Kumar Mehta, Member:

 

(1)                The present complaint has been filed under Section 35 of the Consumer Protection Act, 2019. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that:-

1. The Complainant is mother of deceased Shri Ashok Kumar who died in a motor vehicle accident when his motor cycle was hit by some unknown vehicle. The complainant is the Nominee in the insurance policy taken by deceased Sh. Ashok Kumar.
2. The deceased Shri Ashok Kumar purchased new two wheeler/motor cycle bearing registration no DL8CSM8108 which was registered in his name. This two wheeler was got insured by the dealer from Opposite Party vide policy no.511100/31/2019/TVS/121171, effective for the period 03.01.2019 to 02.01.2020. A premium of Rs.20,001/- was charged by the opposite party while issuing the said insurance policy. The policy was a comprehensive package policy under the name of Two Wheeler Policy Bundled. Copy of insurance policy, Copy of registration certificate of motor cycle and copy of driving licence of deceased Shri Ashok Kumar are annexed with the complaint as Annexure-A, Annexure-B and Annexure C respectively.
3. in the said policy, Personal Accident Cover was also admissible for which separate premium of Rs.320/- was paid to the opposite party and the opposite party after charging premium provided personal accident policy cover of Rs.15,00,000/- to the insured owner i.e. Shri Ashok Kumar.
4. During subsistence of this policy the insured namely Shri Ashok Kumar met with an accident on 15.07.2019 and died on 31.7.2019 in hospital. At the time of accident, the deceased was going on his own motor cycle which was hit behind by some unknown vehicle. The deceased after being hit from behind, fell down sustaining injuries. Copy of FIR has been annexed with the complaint as Annexure D.
5. The deceased after the accident, was taken to Vinayak Hospital from where the deceased was shifted to Shushruta Trauma Centre Hospital on same day i.e. 15.7.2019. Shri Ashok Kumar remained admitted in hospital till his death on 31.7.2019. The copy of MLC, Post Mortem Report, Death Summary and Death Certificate issued by hospital has been annexed with the complaint as Annexure E (colly).
6. After death of Shri Ashok Kumar, the complainant being mother of deceased, submitted the claim with the opposite party. All the documents as demanded were provided to the opposite party. The opposite party vide its letter dated 01.02.2021 noticed that the intimation letter alongwith claim form and documents was submitted by complainant on 22.2.2020.
7. The opposite party vide its letter dated 01.02.2021 rejected the Personal Accident Claim mentioning that there is delay in intimating the insurance company and that the deceased was under the influence of alcohol. Copy of claim rejection letter dated 01.02.2021 has been annexed with the complaint as Annexure F.
8. The opposite party never shared the details of their investigations done or the report of their surveyor/investigator, with the complainant.

 

(2)                It has further been alleged that the rejection of the claim is wrong as the family of deceased is not literate and belong to lower strata of society. They are not aware of rules and regulations of claims to be lodged within a specified time with the insurance company. The complainant was not even aware that the deceased was covered under personal accident policy. It was only after a good Samaritan's help, the family of deceased Shri Ashok Kumar came to know that they are entitled to receive Rs.15,00,000/- under the personal accident policy wherein the claim was thus submitted with the insurance company.

 

(3)               It has also been alleged that the other ground of rejection of the claim is also wrong as the deceased at the time of accident was going alone and a police official who was also following the deceased, helped to send him to hospital. The deceased was unconscious when admitted to hospital and the person who accompanied the deceased, was not known to the deceased. No test was conducted to confirm or notify the quantity of alcohol taken by deceased, if any taken. The history of patient taking alcohol, is not justified from any quarter. This ground of rejection of claim is also wrong and is not sustainable. The police official investigating the accident case, also did not make note of consumption of alcohol by deceased nor did the police official, who helped the deceased being sent to hospital after accident, mentioned anything about alcohol. Even for the sake of arguments, it is assumed that the deceased consumed alcohol, still the claim cannot be rejected as the consumption of alcohol has not triggered the accident. The DLA was hit from behind by unknown vehicle as is evident from the statement of Constable Deepak Rawat who was also moving behind the deceased. The copy of the final report filed by the police officials has been annexed with the complaint as Annexure G.

 

(4)                It has further been stated that the Complainant was able to trace only photocopy of the insurance from the record of motor cycle kept by deceased, wherein the terms & conditions were not attached. The complainant at the time of preparation of the present complaint by the counsel showed inability to provide the terms and conditions, which were then searched on the internet by the Counsel and has been annexed with the complaint. The reason for rejection of claim, as given by the Opposite Party cannot be substantiated as it is wrong and is on flimsy grounds. Despite receiving the premium of insurance and despite completion of all formalities and submission of all the relevant documents to the office of the Opposite Party, the claim of Complainant was  rejected. It appears that the Opposite Party has malafide intentions and have a predetermined approach to not to pay claim. At the time of selling the insurance to the Complainant, tall promises about providing hassle free service are made which are not honoured by Opposite Party at the time of need. The approach towards the claim and the Complainant has thus shown deficiency in services on part of Opposite Party.

 

(5)               The deceased LA Shri Ashok Kumar is survived by his widow, two minor children and aged parents, who are in dire need of funds to survive but with the rejection of claim due to whims and fancies of the opposite party, the sole purpose of purchasing the insurance policy is being defeated. The Complainant, on being failed to get the claim, issued a legal notice dated 11.2.2022 to OP but despite receipt of the said notice, the Opposite Party failed to pay the claim. The copy of the legal notice with its postal receipts and tracking report has been annexed with the complaint as Annexure H.

 

(6)               The OP has made false representation concerning the quality, standard or grade of services being rendered by them and thus have indulged in Unfair Trade Practice within the meaning of Section 2 (1) (R) of The Consumer Protection Act, 1986. Therefore the present complaint has been filed with the prayer of following reliefs:-

1. Direction to OP to pay the amount of Rs.15,00,000/- (Rupees Fifteen Lacs Only), being the sum assured for which premium was charged, along with the interest @ 18% payable from the date of filing of claim till the date of actual payment.
2. award compensation of Rs.1,00,000/- towards distress and mental agony.
3. award a sum of Rs.25,000/- on account of loss of working hours of the Complainant.
4. award the cost of Complaint, to the Complainant.
5. any other relief which this Hon'ble Forum may deem fit and proper under the circumstances of the case may also be awarded in favour of the Complainant.

 

(7)                Accordingly, notice was issued to the OP and in response, the OP has filed reply denying all allegations & pleading no deficiency of service, has prayed for dismissal of complaint stating that:-

a.       the present complaint is filed with the malafide intention to extract the claim amount which the opposite part is not legally liable to pay. It is categorically mentioned in the MLC dated 15.12.2019 that the deceased person had taken alcohol. It was mentioned that the deceased person “h/o taken alcohol” and he was under the influence of alcohol at the time of his admission in hospital after accident which is a clear violation of the terms and conditions of personal accident cover of owner and driver. The copy of MLC is annexed with the complaint as Annexure 'E' at page 16 of the complaint.

2.  Condition No. 1 of Insurance Policy states that "Notice shall be given  in writing to the Company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter, the insured shall give such information and assistance as the company shall require, however, the complainant had given intimation late to the office of the opposite party about the death of her son after almost seven months of the incident which is also a violation of Condition No.1 of the insurance policy and hence valid ground for the rejection of the claim. It is also mentioned in the rejection letter dated 01.02.2021 annexed at page no. 22 of the complaint.
3.     "ignorantia juris non-excusat” meaning thereby that it is presumed    

that every party is aware of the law and hence cannot claim ignorance of the law as a defence to escape liability. The complainant filed a claim even after delay of seven months on the ground that the family of the deceased was not aware about the rules and regulations of policy however, the opposite party is not responsible for this and also is not liable to get them aware about the rules and regulation of the policy which the deceased purchased. Even it was the duty of the deceased to get his family members aware about the policy.

4.      As per the MLC annexed with the complaint, the deceased person was      

under the influence of alcohol which is a clear violation of Section III of the terms and conditions of personal Accident cover of owner and driver which says "No compensation is payable in respect of death resulting from or traceable to an accident happening whilst such person is under the influence of intoxicating liquor or drugs”. Moreover, the insurance policy is a contract and the liability under the PA cover of the Motor Insurance Policy is contractual in nature. Any violation of the terms and conditions of the contract allows the Opposite Party to repudiate the claim. In the present case, the deceased was under the influence of alcohol which is a breach of the policy terms and condition, therefore the Opposite Party has rightly repudiated the claim of the Complainant. The complainant's case falls under the maxim "nullus commondu capere potest de injuria sua propria” meaning thereby no man having done wrong, cannot take advantage of his own wrong Therefore, in the present case, the deceased was under the influence of alcohol and he cannot be compensated for his own wrong. The judgment of the drinker as well as his driving ability gets affected while under the influence of alcoholic intoxication. The deceased Sh. Ashok Kumar had himself infringed the rules of the policy, then, no question lies of compensating or causing any mental agony and harassment by the officers of the Opposite Party. Further, the employees of the opposite party had intimated the complainant, the status of the claim well within time despite the claim was filed almost after seven months of the accident which should have been filed within 30 days.

(8)      The Complainant has filed rejoinder, evidence by way of Affidavit and written arguments. The OP has also filed its evidence by way of Affidavit and written arguments. The Complainant while leading the arguments, has also relied upon two judgments which are as under:-

1. Jaina Construction Company V. The Oriental Insurance Company Ltd. [(2022) 4 SCC 527].
2. Sujata V. Bajaj Allianz General Insurance Co. Ltd. in RP No.790/2013 by Hon’ble NCDRC. 

(9)      It has also been argued by the complainant that the rejection of the claim by opposite party is wrong and baseless as OP has taken delay as one of the grounds for rejection of the claim. The complainant is not literate and belong to lower strata of the society and she was not aware of the rules of OP and also was not in possession of the same. In numerous precedents set by Hon'ble Apex Court, it was held that delay cannot be a ground for rejection of claim. The Hon'ble Supreme court has propounded in Jaina Construction Company v. The Oriental Insurance Company Ltd.,2022(4)SCC 527), that ”Insurance Company cannot repudiate claim in toto, made by owner of vehicle which was duly insured with Insurance Company, in case of loss of vehicle due to theft, merely on the ground that "there was delay in informing company regarding theft of vehicle."

(10)    The Complainant has further contended that the Hon'ble Supreme Court in numerous cases has observed that consumer Act is beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims under the Act. Delay as a ground for rejection of the claim itself contained in rules of the O.P. as technical ground and rejection upon these technical ground in mechanical manner will result in the loss of confidence of policy holders of Insurance Industry.

(11)    The complainant has also argued that another ground to reject the claim was that the deceased was under the influence of alcohol. In this regard, no test for the alcohol consumption has been conducted by the doctors. No medical examination was conducted for ascertaining of the amount of the alcohol although the deceased was taken hospital immediately after sustaining fatal injuries. The OP relied upon the MLC in which smell of alcohol was mentioned. This ground of rejection of claim is also wrong and is not sustainable as any evidence for consumption of alcohol is absent in this case. Police official who was investigating about the accident did not make a note of consumption of alcohol by deceased, nor did the police official, who helped the deceased being sent to hospital after the accident, mentioned anything about the alcohol. The blood sample for testing alcohol was not taken as the treating doctors must have realized that there is no alcohol taken/consumed by deceased. The mere smell of alcohol mentioned in the MLC cannot lead to an inference that a person is incapable of taking care of himself. The family of deceased was not present at the hospital to manipulate the treating doctors or the records. The family in fact was not aware of even this personal accident insurance coverage provided to deceased by the opposite party.

(12)    The complainant has referred the judgment of Hon'ble National Consumer Disputes Redressal Commission, in matter of Sujata Vs. Bajaj Allianz General Insurance wherein it has held that "Alcohol concentration up to 50 mg per 100 ml of blood is tolerable, such person will not show signs of intoxication. Mere consuming of alcohol is not a ground to repudiate insurance claim. Both the post-mortem report and the investigator's report merely state that the deceased had consumed alcohol without giving any details about the actual amount of alcohol if consumed. Even if the post-mortem report stating the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed. It should be borne in mind that a person cannot be said to be intoxicated unless alcohol level exceeds the prescribed limit which can only be confirmed through Blood Alcohol Concentration (BAC) is most commonly used as a metric of alcohol intoxication for legal or medical purposes. Therefore, the State Commission's observations appear to be unscientific one. And revision allowed."

(13)    Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OPs and it has been observed that the OP has simply relied upon the note appended on MLC but has failed to file “any evidence regarding the quantity of alcohol consumed”. The judgment of Hon'ble National Consumer Disputes Redressal Commission, in matter of Sujata Vs. Bajaj Allianz General Insurance discussed in para 12 above has specifically recorded that “ Even if the post-mortem report stating the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed.” Therefore, the record relied upon by the OP to repudiate the claim is not sufficient.

(14)    The following judgments are also relevant in this case:-

i.       In the matter of “Life Insurance Corporation of India & Ors. Vs. Kunari Devi” IV (2008) CPJ 89 NC, It has also been held that “history recorded in the hospital's bed head cannot be treated as evidence as doctor's evidence was not recorded and hence suppression of disease was not proved.”

2. In the matte of New India Assurance Co. Ltd. Vs. Mahabir Extraction Pvt. Ltd. (Revision Petition No. 1681 of 2014), the Hon'ble NCDRC has held that:-

"14. From the aforenoted Regulation it is clear that it is mandated that the Insurance Company should settle the claim within a period of 30 days after receipt of the Survey Report. In the instant case even the second Survey Report was received on 08.09.2003, therefore the inordinate delay of 5 long years is totally unjustified and for a Company to sustain a loss of this amount, which was ultimately paid by the Insurance Company on 26.08.2008, 5 years after the date of accident, cannot be undermined. The Insurance Company is in a dominant position and taking 5 years to settle the claim in full and final satisfaction construes that the Complainant had accepted the amount only under financial pressures, which they had to undergo on account of the delay. It is pertinent to mention that the amount was paid to the Complainant on 26.08.2008 and the Consumer Complaint was filed on 03.11.2008, without much delay. 15. The State Commission has also awarded only a reasonable interest @9% p.a. from January, 2004 till the date of realization. We do not see any illegality or infirmity in the order of the State Commission, which would warrant our interference and hence this Revision Petition is dismissed accordingly, no order as to costs."

 

3. In National Insurance Co. Ltd. and Ors. Vs. Abhoy Shankar Tewari and Ors. (Revision Petition No. 555 of 2015), the Hon'ble NCDRC has held that:-

 

"7.2. The withholding of the admitted amount by the insurance companies unless complete discharge is given, amounts to deficiency in service within the meaning of Section 2(1)(g) of the Consumer Protection Act, 1986 as the insurance companies are not expected to withhold the admitted claim amount till the insured gives the receipt of full and final settlement.

7.3. Despite well settled position of law, insurance companies are indulging in unfair trade practices and therefore, the Court issued notice to the IRDA on 17th August, 2015.

7.4. The IRDA has promptly set the controversy at rest by issuing the circular dated 24th September, 2015. All insurance companies are bound to comply with the circular dated      24th September,        2015 issued by IRDA and shall not insist on discharge voucher for releasing the admitted amount in view of the circular dated 24th September, 2015 issued by IRDA. However, in cases where such discharge voucher has been already been taken, the insurance companies shall not raise any objection to the maintainability of the claim on the basis of the discharge voucher.

 7.5. This Court hopes that the pending and future claims will no longer consume the Court time for deciding this issue and to this extent, the Court's time will be saved and the claims on this account shall not be delayed or denied."

 

4. In United India Insurance Company Limited Vs. Suryo Udyog Limited (ARBA Nos. 39 and 41 of 2018),the Hon'ble HIGH COURT OF ORISSA has held that It is further noted that the Insurance Regulatory and Development Authority (Protection of Policyholders' Interest) Regulations, 2002 at Sub Regulation 9 (5) and (6) states that:-

"(5) On receipt of the survey report or the additional survey report, as the case may be, an insurer shall, within a period of 30 days, offer a settlement of the claim to the insured. If the insurer, for any reasons to be recorded in writing and communicated to the insured, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be.

(6) Upon acceptance of an offer of settlement as stated in sub regulation (5) by the insured, the payment of the amount due shall be made within seven days from the date of acceptance of the offer by the insured. In the cases of delay in the payment, the insurer shall be liable to pay interest at a rate which is 2% above the bank rate prevalent at the beginning of financial year in which the claim is reviewed by it. "In the present case, the Joint Final Survey Report was submitted on 07.02.2000 and therefore the offer should have been made to the Insured by 07.03.2000. However, the Insured was given a cheque directly on 08.01.2001. Given the facts and circumstances of the matter, interest would be liable to be paid from the month after the expiry of the window statutorily granted to the Insurer Company for settling the claim. Therefore, this Court finds that the award of interest at the rate of 12% simple interest per annum to be payable from 01.04.2000, as awarded by the Learned Arbitral Tribunal is adequate, just and reasonable.

 

5. In the matter of Sunil Sharma V. National Insurance Company Ltd [II(2015)CPJ46(Del)], it has been observed that “Insurance Companies to be honest & forthright in its approach while settling an insurance claim, factors which are material and germane should be given importance. Insurance claims cannot be rejected on flimsy and technical grounds otherwise confidence of people in insurance companies would be deeply eroded”.

 

6. In the matter of Shriram General Insurance Co. Ltd. v. Ramcharan Dhobi [MANU/CF/0032/2017], it has been observed that “Insurance Claims cannot be rejected on purely technical grounds like delay in intimation or submission of documents.

 

(15)        The relevant portion of the IRDA Circular No. IRDA/HLTH/MISC/CIR/216/09/2011 dated 20.09.2011 relating to “REJECTION OF CLAIM” also states that “the insurers' decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation. Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time."

(16)    The above circular of the IRDA, has also not been taken into consideration by the OP while rejecting the claim on account of delay in intimation. In the case of death, it is highly unfair to presume that the deceased family members must be aware about all insurance policies taken by the deceased. The OP has also not elaborated in the WS as to how it reached at conclusion that the insurance policy of the deceased was within the knowledge of the family of the deceased who happens to be an illiterate. The averments made in the complaint about the delay in intimation, has also not been rebutted with any evidence by the OP.

(17)    In view of the above observations, we are of the considered opinion that the OP has not scrutinized the claim of the complainant diligently and have acted in the pre-determined manner with the intention to disallow the claim without any cogent reason which amounts to deficient in service on the part of the OP (M/s Oriental Insurance Co. Ltd.) in terms of the deficiency defined in the Act which includes  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. We also feel that the deficiency in service on the part of the OP has also caused harassment, mental tension and agony to the complainant for which the OP is also liable to pay compensation.

(18)    Considering the conduct of the OP, We also consider appropriate to refer to the following observations of Hon’ble High Court of Judicature at Madras, made in judgment dated 29.04.2024 in W.P.No.26233 of 2022 and W.M.P.No.10847 of 2024 in the matter of N. Lakshmi Vs The Insurance Regulatory and Development Authority of India, & 3 Ors about the conduct of Insurance companies in settling the claims:-

“ 5.1. In support of his contention, he relied upon the judgment of the Hon'ble Supreme Court of India in the case of Gurmel Singh Vs.Branch Manager, National Insurance Co. Ltd., reported in 2022 SCC OnLine SC 666, which held that the documents which were asked by the insurer were beyond the control of the claimant to procure and furnish. Once there was a valid insurance on payment of huge sum by way of premium, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non-submission of documents. Further held that while settling the claims, the insurance company should not be too technical and asked for the documents.

 

5.2. He also relied upon the judgment of this Court reported in

2019 SCC OnLine Mad 2246 in the case of Jasmine Ebenezer Arthur Vs. HDFC ERGO General Insurance Company Ltd., & ors., in which this Court held that the writ petition is very much maintainable not only for infringement of fundamental rights but also for any other purposes. The question that requires determination is whether the private bodies performing public duties can be brought within the purview of judicial review. If a private body is brought within the purview of Article 12 of the Constitution of India, then it will be subject to constitutional limitations. Therefore, it become necessary that the private bodies should be made accountable to judiciary within the judicial review.         

7. ..xxxx

8. ..xxxx

9. ..xxxx      

10. As held by this Court in Jasmine Ebenezer case, as stated supra, even though law seems to be clear constituting a balance between the insuring party and insured, in reality, there is no equality between the two as insurer is the richest corporation and the individual is an ordinary individual. In fact, in many cases, the individual has no legal knowledge about the ambiguous language used in the company's policy with an intention to waive them from the liability to pay the injured on happening of an agreed event. Many a times the companies willfully neglect reimbursing the insured, who instead of getting their amount from the company have to pay the Courts for getting their rights enforced. The case on hand is the classic example of the same. The petitioner's husband suffering with sudden cardiac arrest and it falls under the one of the disease covered under the policy. Further the policy conditions cover the disease and no one can be stated as it is not major medical illness.”

 

(19)    Therefore, we feel appropriate to direct the OP (M/s Oriental Insurance Co. Ltd.) to pay Rs.15,00,000/- (Rupees Fifteen Lakh only) within thirty (30) days from the date of this order, with interest at the rate of 9% p.a. from 01-02-2021 (date of repudiation of claim) till the date of the payment. Besides, the OP is also directed to pay Rs.5,00,000/-(Rupees Five Lakh Only) as compensation to the Complainant, for the mental pain, agony and harassment. It is clarified that if the abovesaid amount is not paid by the OP to the Complainant within the period as directed above, the OP shall be liable to pay interest @12% per annum on the entire amount from the date of expiry of 30 days period.

(20)    Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

                    ASHWANI KUMAR MEHTA                                              HARPREET KAUR CHARYA

                                     Member                                                                                   Member      

                            DCDRC-1 (North)                                                                     DCDRC-1 (North)

 

                                        DIVYA JYOTI JAIPURIAR

                                            President 

                        DCDRC-1 (North)