Haryana

Kaithal

391/20

Prem Singh - Complainant(s)

Versus

SBI Gen Insurance Co. - Opp.Party(s)

Sh.K.L Kashyap

11 Jul 2023

ORDER

                       

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.391/2020.

                                                     Date of institution: 10.11.2020.

                                                     Date of decision:10.07.2023.

Prem Singh son of Sh. Dhambhu Ram, Senior Citizen of the age of 75 years, permanent resident of Village Krora, Tehsil Pundri, District Kaithal.

                                                                        …Complainant.

                        Versus

1. SBI General Insurance Company Ltd. through Sukhesh P. Bhave, Head-Accident and Health Claims, CIN: U66000MH2009PLC190546, 3^rd & 4^th Floor, Lotus IT Park, Road No.16, Plot No.B-18, 19, Wagle Industrial Estate, Thane (W), Thane-400604.
2. Branch Manager, State Bank of India (SBI), Branch Pai, Tehsil Pundri, District Kaithal.

….OPs.

        Complaint under Section 35 of the Consumer Protection Act

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Sh. Rajesh Kapro, Advocate, for the complainant.   

                Sh. P.P.Kaushik, Advocate for the OP.No.1.

                OP No.2 given-up.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Prem Singh-Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the OPs.

2.             In nutshell, the facts of present case are that the son of complainant namely Rajesh Kumar (since deceased) was having bank account bearing No.38273184766 at the branch of OP No.2 and he  purchased an insurance policy i.e. Group Personal Accident Insurance Policy bearing No.175095-0000-00 from the OP No.2 valid for the period 06.03.2019 to 05.03.2020.  The premium of Rs.1,000/- for the aforesaid period was debited on 06.03.2019 from the account of son of complainant.  The son of complainant died on 07.05.2019 due to murder.  An FIR No.206 dt. 08.05.2019 under Section 302 IPC was got lodged in P.S.Pundri.  The investigation of the case was completed and the untraced report dt. 16.02.2020 was finalized by the police.  The complainant being nominee of the policy, has requested the OP No.1 to pay claim qua the accidental death of the insured person but the OP No.1 has repudiated the claim of complainant vide letter dt. 27.10.2020.  The said repudiation of claim is stated to be wrong and illegal.  So, it is a clear cut case of deficiency in service on the part of OPs and prayed for acceptance of complaint.     

3.            Upon notice, the OPs appeared before this Commission and contested the complaint by filing their written statements separately.  OP No.1 filed the written statement raising preliminary objections that the present complaint is false and frivolous; that after the death of insured, Mr. Rajesh Kumar, post-mortem report of deceased was conducted.  As per PMR, the death is due to encircling force around trachea i.e. Strangulation, however, exact circumstance of incidence due to fall sustained under influence of alcohol.  Viscera analysis report confirmed presence of 115 mg% of enthyl alcohol in blood of insured confirming that insured was under influence of alcohol at the time of incident.  As per exclusions mentioned under policy, “Any claim or claims under this policy arising from being under the influence or use/abuse of drugs, alcohol, or other intoxicants or hallucinogens unless properly prescribed by a physician and taken as prescribed” is not covered under this policy.  Hence, the claim of complainant was repudiated vide letter dt. 27.10.2020.  The said repudiation of claim is stated to be legal and valid.  There is no deficiency in service on the part of OP.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

4.             OP No.2 filed the written statement raising preliminary objections with regard to locus-standi; mis-joinder and non-joinder of necessary parties; that the complainant is not consumer of answering OP; that the answering OP has no role about insurance of said Rajesh Kumar under Group Personal Accident Insurance Policy or about processing & adjudication of insurance claim pertaining to present complainant.  To implement the scheme of Group Personal Accident Insurance Policy, premium amounts were debited from the account of said Rajesh Kumar (now deceased on 06.03.2019 for the years 2019-20 and such premium amount was remitted to OP No.1 in their account.  There is no deficiency in service on the part of OP.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

                After filing the written statement by Op No.2, OP No.2 was given-up by ld. counsel for the complainant vide his separate statement recorded on 21.11.2022. 

5.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C10 and thereafter, closed the evidence.

6.             On the other hand, the OP No.1 tendered into evidence affidavit Ex.RW1/A alongwith documents Annexure-R1 to Annexure-R11 and thereafter, closed the evidence.

7.             We have heard the learned Counsel for both the parties and perused the record carefully.

8.             Ld. counsel for the complainant has argued that the elder son of complainant namely Rajesh Kumar (since deceased) was having bank account bearing No.38273184766 at the branch of OP No.2 and he  purchased an insurance policy i.e. Group Personal Accident Insurance Policy bearing No.175095-0000-00 from the OP No.2 valid for the period 06.03.2019 to 05.03.2020.  The premium of Rs.1,000/- for the aforesaid period was debited on 06.03.2019 from the account of son of complainant.  It is further argued that the son of complainant died on 07.05.2019 due to murder.  An FIR No.206 dt. 08.05.2019 under Section 302 IPC was got lodged in P.S.Pundri.  The investigation of the case was completed and the untraced report dt. 16.02.2020 was finalized by the police.  It is further argued that the complainant being nominee of the policy, has requested the OP No.1 to pay claim qua the accidental death of the insured person but the OP No.1 has repudiated the claim of complainant vide letter dt. 27.10.2020.  The said repudiation of claim is stated to be wrong and illegal.  So, it is a clear cut case of deficiency in service on the part of OPs. Ld. counsel for the complainant has placed reliance upon the case law titled as Royal Sundaram Alliance Insurance Co. Ltd. Vs. Pawan Balram Mulchandani decided by Hon’ble National Commission on 25.09.2018 and Maya Devi Vs. LIC decided by Hon’ble National Commission on 21.05.2008. 

9.             On the other hand, ld. counsel for the OP No.1 has argued that as per PMR, the death is due to encircling force around trachea i.e. Strangulation, however, exact circumstance of incidence due to fall sustained under influence of alcohol.  It is further argued that Viscera analysis report confirmed presence of 115 mg% of enthyl alcohol in blood of insured confirming that insured was under influence of alcohol at the time of incident.  As per exclusions mentioned under policy, “Any claim or claims under this policy arising from being under the influence or use/abuse of drugs, alcohol, or other intoxicants or hallucinogens unless properly prescribed by a physician and taken as prescribed” is not covered under this policy.  Hence, the claim of complainant was repudiated vide letter dt. 27.10.2020.  The said repudiation of claim is stated to be legal and valid.  Ld. counsel for the OP No.1 has placed reliance upon the case law titled as Iffco-Tokio General Insurance Co.Ltd. Vs. Pearl Beverages Ltd. 2021(3) RCR (Civil) decided by Hon’ble Supreme Court; Baby Apoorva Rai Vs. NIA 2015(4) CLT 18 (NC) and Lakshmi Rohit Ahuja Vs. SBI Life Insurance Co. Ltd. 2016(2) CPR 905 (NC).   

10.            We have considered the rival contentions of both the parties.  The main contention of ld. counsel for the OP No.1 is that in the FIR Annexure-C4/Annexure-R1, Satish Kumar son of Prem Singh has got recorded his statement that on 06.05.2019 when he was wheat sprout in his fields, then his brother namely Rajesh had gone to Village Karora and he was habitual of drinking liquor. He has further stated in his statement that his brother had died due to drinking liquor as he had fallen on the bricks in the drunken condition.  Ld. counsel for the OP No.1 has drawn our attention towards Report of the Chemical Examiner for the Haryana as per Annexure-R6, wherein it is mentioned that “Content of the exhibit No.1, 2, 3, 4 & 5 gave positive test for Ethl alcohol.  Ethyl alcohol was estimated as 11.00 mg% in exhibit No.5.”  We have perused the contents of FIR as per Annexure-C4, wherein the doctor has given the opinion that “IN OUR OPINION THE CAUSE OF DEATH WITH ASPHYXIA DUE TO ENCIRCTING FORCE AROUND TRACHEA IS STRANGULAATION WHICH IS ANTE MORTEM IN NATURE AND SUFFICIENT TO CAUSE DEATH IN NORMAL CAUSE OF LIFE”.  It is also clear from Annexure-C7 that the  untraced report dt. 16.02.2020 was finalized by the police in the murder case under Section 302 IPC.  According to the final report of the police, the cause of death of the insured person is strangulation, which is confirmed by the doctors in the post-mortem report.  During the course of arguments, ld. counsel for the complainant has also placed on file copy of Post-Mortem Examination Report dt. 07.05.2019 as per Mark-A, wherein the cause of death is mentioned that “ASPHYXIA DUE TO ENCIRCLING FORCE AROUND TRACHEAL THAT IS STRANGULATION”.  So, in view of the documentary evidence available on the file, we are of the considered view that the cause of death of deceased was due to strangulation and not due to drinking liquor and there is no merit in the contention of ld. counsel for the OP No.1.  Hence, there is deficiency in service on the part of OP No.1.  The authorities submitted by ld. counsel for the complainant are fully applicable to the facts of instant case, whereas the authorities submitted by ld. counsel for the OP No.1 are not distinguishable but the same are not applicable to the facts of instant case. 

11.            Thus, as a sequel of aforesaid discussion, we direct the OP No.1 to pay the amount of Rs.20,00,000/- (Twenty lakhs) to the complainant within 45 days from today, in default, the aforesaid amount shall carry interest @ 7% p.a. from the date of this order till its realization.  The OP No.1 is further directed to pay Rs.10,000/- as compensation for physical harassment and mental agony as-well-as Rs.5,000/- as litigation charges to the complainant.  Hence, the present complaint is accepted according against the OP No.1 and dismissed the complaint against OP No.2 as OP No.2 was given-up by the complainant being unnecessary party.      

12.            In default of compliance of this order, proceedings against OP No.1 shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:10.07.2023.                                           (Neelam Kashyap)

                                                                President.

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.    

Typed by: Sanjay Kumar, S.G.