Per Mr.H.K.Bhaise, Hon’ble Member

1)                The complainant states that the O.P.No.1 is a Club under name Pancard Clubs Limited, with Registration No.11/105363, issuing their membership to the reputed citizens as per their rules and regulations. The complainant’s husband applied to O.P.No.1 for its Club’s luxury membership and O.P. admitted him as luxury member for 6 years and allotted him folio number BKS-838,-1-01-00626286.  The complainant’s husband Late Shri Ashok Krishna Bhoir paid the requisite offer price of Rs.25,925/- to the O.P.No.1. 

2)                The complainant states that as per rules and regulations the O.P.No.1 also insured their members by availing insurance policy from the Insurance Company.  The O.P.No.1 has tie up with the O.P.No.2 for issue of policies to the members of the O.P.No.1.  Thus, the complainant’s husband Shri Ashok Krishna Bhoir being Member of O.P.No.1 was also insured for personal accident death insurance policy bearing No.110800/42/05/03580 and the sum insured was Rs.5,00,000/- and the commencement of policy was from 18^th May, 2007.  The same was renewed for further period and the new policy bearing No.110800/42/07/03/00003762 for the sum of Rs.5,00,000/-. The premium of the said insurance policy was paid by the O.P.No.1.

3)                The O.P.No.1 has also issued through the O.P.No.2 mediclaim insurance to the complainant’s Late husband in his name bearing Policy No.110800/48/11406 sum insured was Rs.25,000/- and the commencement of policy was from 23^rd May, 2007.  Thereafter, it was renewed.  Both the insurance policies were taken from the New India Assurance Company Limited i.e. the O.P.No.2.

4)                On 22^nd June, 2008, the complainant’s husband Late Shri Ashok Krishna Bhoir had gone to their cattle room in afternoon at 03.00 P.M. for feeding grass to the cattle.  When he was picking grass, suddenly, he was bitten by a snake hidden in the grass. He was immediately taken to ICON Hospital, Dombivali(East) and admitted for medical treatment.  The said Mr.Ashok Bhoir was expired in the hospital at about 9.15 P.M. due to cardio respiratory failure due to snake bit.  The hospital issued death certificate dated 22^nd June, 2008.  Copy was sent to Ramnagar (Manpada) Police Station and informed them for post mortem as per the procedure.

5)                The Ramnagar Police recorded the statement of relatives of deceased, carried out inquest Panchanama and other enquiry and found that death of the deceased was caused due to snake bite and therefore handed over the dead body of the deceased for further funeral rites without post mortem.  The complainant has obtained heirship certificate from the Civil Court at Kalyan.

6)                After the death of deceased Shir Bhoir mentioned above, the complainant approached the O.P.No.1 for insurance claim and submitted all the documents to the O.p.No.1 which the O.P.No.1 was submitted to the O.P.No.2/Insurance Company.

7)                The O.P.No.2 have sanctioned and paid the complainant mediclaim of Rs.19,604/- on 4^th March, 2009 and said amount has been received by the complainant. But for accident death claim the O.P.No.2 has issued letter to the O.P.No.1 dated 24^th January, 2011 and informed that the claim lodged to the O.P.No.2 under personal accident insurance policy of Shri Ashok Bhoir, husband f complainant can not be sanctioned as the post mortem was not done which is mandatory for them to process the claim and hence they are closing the file as ‘No Claim’.

8)                The complainant stated that she had asked the O.P.No.1 to initiate legal action against the O.P.No.2 but the O.P.No.1 expressed inability to start litigation and informed the complainant that complainant herself shall take necessary steps.

9)                The complainant stats that death of deceased has been caused due to poison by snake bite and because of it his cardio respiratory system failed.  The cause of death is specifically certified by the reputed hospital in the death certificate. Considering the cause of death there was no necessity to carry out post mortem on the deceased and therefore police authorities have not gone for post mortem and handed over the body to relatives for last funeral rites.  Therefore, in the said mater the decision to close file of the complainant on the ground that post mortem was not done is totally illegal.  By the said conduct, the O.P.No.2 has committed deficiency in service under the provisions of Consumer Protection Act.  The O.P.no.2 have sanctioned one claim i.e. mediclaim and paid the same to the complainant.  But, the personal accident claim is of Rs.5,00,000/- considering more amount, the O.P.No.2 have purposely and intentionally rejected the same. 

10)              The complainant states that she is entitled and has right to get the said personal accidental insurance claim of Rs.5,00,000/- for her husband.  The complainant has suffered harassment, mental torture, agony because of conduct and approach of the O.P.No.1 & 2 which resulted on her health and disturbing her family life with children.  The complainant is entitled to the claim compensation for the said harassment to the extent of Rs.1,00,000/-

11)              The complainant issued legal notice dated 30^th March, 2011 to the opponents. But, the O.P.No.2 refused to p ay the claim on false and frivolous grounds.

12)              Therefore, the complainant has filed this case in Consumer Forum and pray before the Forum 

1. The Hon’ble Forum may be pleased to declare that the Opponents have committed deficiency in service and unfair trade practice and were negligent while rendering services to the complainant
2. The O.P.No.2 be ordered to pay a sum of Rs.5,00,000/- towards the personal accident claim under the policy and Rs.1,00,000/- towards the compensation for mental agony, physical torture, pains, trouble, inconvenience, suffered by the complainant because of the Opponents’s conduct and cost of the said complaint of Rs.25,000/- with 18% interest per annum.
3. Alternatively both the opponents be jointly and severally ordered to pay the above mentioned claim and compensation as per the prayer ‘b’ above.
4. The cost of the said complaint be awarded to the complainant from the opponents.

13)              Both the opponents appeared before the Forum and submitted their written statement on 11^th June, 2012.

14)              As per the O.P.No.1, the above complaint is not maintainable both in law and on facts. Complaint  is false and frivolous as against the O.P.No.1 and ought to be dismissed with cost under section 26 of Consumer Protection Act, 1986.

15)              The O.P.No.1 says that they have not received any premium or payment from the complainant towards the insurance policy.

16)              The O.P.No.1 is a company registered under the provisions of Companies Act, 1956.  They are interalia engaged in the business of selling of advance room nights at its various Hotels, Clubs, Resorts across India to its members.  The O.P. submits that they are not involved in any insurance business, the insurance coverage including personal accidental death is the additional benefit which is provided through New India Assurance Company Limited for personal accidental death claims and mediclaims without charging any charges or cost to the deceased member. The O.P.No.1 merely acts as a mediator and assists its members by forwarding all the insurance claim papers to the insurance company submitted by the members/claimants with the O.P.No.1 without any additional charges/fees.  The same is available to the members free of cost from the O.P.No.1.

17)              The O.P.No.1 submits that they had taken group personal accident insurance policy from the New India Assurance Company Limited under which the complainant’s husband was covered and in the event of any claims, the role of the O.P.No.1 is restricted to forward the claim documents received from the members/claimants.  It is further submitted that they have paid the premium for the year 2008-2009 (i.e. from 18^th March, 2008 to 17^th March, 2009) to the New India Assurance Company Limited on behalf of their members.

18)              The O.P.No.1 submit that Mr.Ashok Bhoir had taken luxury membership of the O.P.No.1 on payment of offer price of Rs.25,925/- and Rs.100/- towards entrance fees on 3^rd April, 2007 for a period of six years.  The complainant purchased 61 room nights in advance from the O.P.No.1. 

19)              The O.P.No.1 submits that they received the claim application along with documents from the complainant regarding death claim and mediclaim of complainant’s husband on 11^th September, 2008 which was duly acknowledged by them.  The complainant is well aware of the fact that the O.P.No.1. is not responsible for settlement of the said accidental death claim.  The O.P. No.1 submits that they immediately forward the claim applicant and documents of the complainant to the O.P.No.2 vide its letter dated 22^nd October, 2008.

20)              The O.P.No.2 belatedly addressed a request letter dated 28^th July, 2009 for further additional documents for processing the claims which was immediately forwarded to the complainant.  The required documents were forwarded to the O.P.No.2 vide letter dated 23^rd September, 2009. The O.P.no.1 forwarded the ‘No Claim’ letter dated 24^th January, 2011 of O.P.No.2 to the complainant. The O.P.No.1 submits that they acted diligently and conscientiously and there is no deficiency/fault in services on their part.

21)              The O.P.No.1 says that they replied to the legal notice of the complainant vide letter dated 19^th April, 2011 denying all the contents and allegations made by the complainant. The O.P.No.1 denies all the allegations and averments as being false, fabricated and vexatious and the complainant is put to strict proof thereof and prays to dismiss the complaint with cost.

22)              The O.P.No.2 says that the complainant is not the consumer of this O.P.No.2.  The O.P.No.2 has issued policy of insurance namely Group Personal Accident Policy No.110800/42/07/03/00003762 valid from 18^th March, 2008 to 17^th March, 2009 in favour of M/s.Pancard Clubs Limited.  Hence, the complainant having paid no premium to the O.P. No.2 can not be termed as a consumer of this O.P.No.2 and hence not liable to pay any compensation to the complainant as demanded.

23)              The complainant’s husband is alleged to have died due to snake bite, since this type of death was an unnatural death requiring post mortem as advised by the ICON Hospital on 22^nd June, 2008.  The production of post mortem report is mandatory to establish the nexus of death of the deceased.  It is not the domain of the police authorities to conclude the cause of death of any person but is that of the qualified medical doctors fraternity which indeed advised the complainant to carry out the post mortem of the deceased which complainant did not do.

24)              The complainant having failed to submit the postmortem report to the O.P.No.2 can not be paid any compensation as demanded and the policy of insurance containing the relevant terms and conditions in this behalf is very clear.  The postmortem is the domain of hospital doctors/medical fraternity which indeed asked to conduct the postmortem on the deceased which was not done hence the claim for Rs.5,00,000/- is not tenable.  The mediclaim policy does not warrant the submission of postmortem report and hence the mediclaim was paid to O.P.No.2.

25)              The O.P.No.2 states that it is not liable to pay any compensation of Rs.5,00,000/- to the complainant for the reason advocated above.  The O.P.No.2 does not admit that it has caused any agony, harassment and trauma to the complainant as alleged.  The O.P. does not admit that it has been deficient in its services.  In view of ensure that no unjustice is done to the complainant, the O.P. obtained an opinion from their Medicolegal Consultant Dr.Manoj Gupta wh interalia opined on 24^th July, 2009 that the complainant’s claim should not be settled in the absence of postmortem report and other details establishing the exact cause of death of the deceased. The O.P.No.2 also does not admit its liability to pay a sum of Rs.1,25,000/- as demanded by the complainant in para 15 of her complaint.

26)              Under the circumstances, the O.P.No.2 does not admit its liability to pay a sum of Rs.6,25,000/- together with interest at the rate of 18% per annum as demanded by the complainant who is put to strict proof thereof.

27)              After hearing complainant and both the opponents and after going through the record following points arise for our consideration

POINTS

REASONS

28) As to Point No. 1 & 3 :-It is not disputed that the complainant was the member of O.P.No.1. The O.P.No.1 has admitted that complainant has paid Rs.25,925/- towards membership. According to the O.P.No.1, it had purchased group medical insurance policy for the benefit of its members. Copy of group medical insurance policy issued by the O.P.No.2 is produced on record. The O.P.No.2 has admitted that the policy was issued for the benefit of the members of the O.P.No.1. There is no dispute that the complainant has submitted her claim to the O.P.No.1 and the O.P.No.1 forwarded it to the O.P.No.2. It is also not disputed that the O.P.No.2 repudiated the claim vide letter dated 24^th January, 2011. In the said repudiation letter, the claim was repudiated on the ground for not fulfilling the purview of the policy terms and conditions i.e. it was found that the Post Mortem was not done which is mandatory for us to process the claim.  Hence, we express our inability to accept the liability and close the file as NO CLAIM. Thus, the admitted position on record is that the complainant was the member of O.P.No.1. The O.P.No.1 purchased group medical insurance policy from the O.P.No.2 for the benefit of its members. The O.P.No.1 has paid premium to the O.P.No.2. Being the member of O.P.No.1, the complainant is the beneficiary of the policy. Therefore, it can not be said that no premium was paid for the policy. The O.P.No.2 can not avoid its liability by saying that premium was not paid by the complainant. The premium was paid by the O.P.No.1 on behalf of its members including the complainant. As the O.P.No.2 had received the premium from the O.P.No.1 and issued policy for the benefit of members of the O.P.No.1, the O.P.No.2 is liable to give all benefits as per policy to the members of the O.P.No.1. 

29)              The claim of the complainant was repudiated on the ground that the complainant has not done the post mortem of the complainant’s husband which is mandatory for O.P.No.2 for process the claim.  As the complainant failed to submit the post mortem report to the O.P.No.2, can not be paid any compensation as demanded as the policy of insurance containing relevant letters and conditions in this behalf is very clear.

30)              In this matter, ICON Hospital has issued death certificate to In charge of Manpada Police, Dombivali and asked them to arrange for post mortem as early as possible.  In the death certificate issued by ICON Hospital on the same day i.e. 22^nd June, 2008 it is clearly mentioned that Mr.Ashok Bhoir, 45 Years, Male was admitted in ICON Hospital on 22^nd June, 2008 at 03.00 P.M. who is residence of Kumbharkhan Pada, Subhash Road, Dombivali(West) and is died due to Cardio respiratory failure due to snake bite on 22^nd June, 2008 at 09.15 P.M.

31)              After that on 10^th July, 2008, Vishnunagar Police Station has sent the report to Sub-Divisional Magistrate requesting him to the said death should be treated as accidental death and case summary should be approved as such.  In that summary report in Column 19 and 20 police station has given the clear report as under :

अ.क्र.19 तपासाचा गोषवारा ः-आज पावेतो आम्‍ही यातील मयताचा तपास केला यातील मयत यास साप चावून त्‍यास मरण आले आहे. त्‍याचे मरणाबाबत आजपावेतो कोणीही आमचेकडे तक्रार केलेली नाही. अगर तक्रारी अर्ज केलेला नाही. यातील मयत हा साप चावूनच त्‍यास मरण आलेले आहे.  

अ.क्र.20 चौकशीचा निष्‍कर्ष ः-आजपावेतो आम्‍ही यातील मयत इसमाचे मरणाची चौकशी केली. साक्षीदार तपासले असता त्‍यांचे सांगणे की, यातील मयत इसम नामे अशोक कृष्‍णा भोईर वय-45, रा.चिंचोळयाचा पाडा, कुंभारखानपाडा, डोंबिवली(पश्चिम) यास साप चावल्‍यामुळे त्‍यास मरण आले आहे. यात काही संशयाचा प्रकार नाही.

32)              So, in the matter the responsibility of the post mortem was of police authority. But, it seems that they were very sure on cause of death as accident by snake bite and there was no confusion about the cause of death in the mind of police and therefore they decided to handover the dead body of deceased to their relatives without going for post mortem.

33)              Secondly, the authority to perform post mortem or not is the police department.  The complainant can not insist for post mortem on his own and therefore it is not the mistake of the complainant that post mortem was not done.  Moreover, police has investigated the matter even after death they have taken witness, Panchanama and finally on 10^th July, 2008 has submitted summary report to Sub-Divisional Magistrate to treat this death as an accidental death.

34)              On going through above process there is no chance to have any malafide intention in the death of deceased.  Secondly, police is also government and responsible investigative authority.  As they were sure about the accidental death, they did not go for post mortem. So, merely saying that the post mortem was not done and hence claim is repudiated is not fair.  Depending upon the situation and circumstances and reports of medical officer, ICON Hospital as well police department, higher police authorities the claim should have been sanctioned on humanitarian ground. There is no single proof with the O.P.No.2 to show that there is any mischief or malafide intention of the complainant in demanding the claim.  This clearly indicates unfair trade practice of the O.P.No.2.

35)              Thus, there is sufficient evidence on record to show that the complainant was the member of the O.P.No.1. The O.P.No.1 had purchased group medical insurance policy from the O.P.No.2 for the benefits of its members. The O.P.No.2 had received the premium from the O.P.No.1 and issued group medical insurance policy for the benefit of the members of the O.P.No.1 including the deceased husband of the complainant. Considering the admitted position on record about the policy for the benefit of the members of O.P.No.1, the O.P.No.2 is liable to reimburse the claim of the complainant. The O.P.No.2 is wrongly repudiated the claim of the complainant thereby the complainant suffered from mental agony. Therefore, the O.P.No.2 is liable to pay the compensation to the complainant. We think compensation of Rs.10,000/- is reasonable. Besides this, the complainant is entitled for the cost of proceeding of Rs.5,000/- from the O.P.No.2. As per the evidence on record, the O.P.No.1 has forwarded the claim to the O.P.No.2. Therefore, the O.P.No.1 is not liable to satisfy the claim of the complainant. Hence, we proceed to pass the following order.

O R D E R

1. Complaint is allowed.
2. The O.P.No.2 is directed to pay a sum of Rs.5,00,000/- (Rs.Five Lakhs Only) to the complainant towards the personal accident claim under the policy with interest at the rate of 9% per annum from the date of filing of this complaint i.e. 12^th March, 2012 till realization.
3. The O.P.No.2 is also directed to pay compensation of Rs.10,000/- (Rs.Ten Thousand Only) for mental agony and Rs.5,000/- (Rs.Five Thousand Only) towards the cost of this proceeding to the complainant.
4. The above order shall be complied with within a period  of one month from today.
5. The consumer complaint stands dismissed as against the O.P.No.1.
6. Copies of this order be sent to the parties free of charge.

Pronounced

Dated 28^th May, 2014