Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 35 of Consumer Protection Act, 2019 on the allegations that Kamaljit Singh son of Joginder Singh (husband of the complainant) was having saving bank account bearing No. 38300808244 with Opposite Party No.1 bank and he was insured with Opposite Party No.2 under the policy No.175092-0000-00/38300808244 for a sum of Rs.20 lakhs. Said Kamaljit Singh died on 08.07.2019 due to road accident. Brief facts of the case are that on 06.07.2019 while, Kamaljit Singh insured was driving his motor cycle , he struck with a stray animal on the outer phirni of village: Mahla Kalan, District Moga. Due to accident, he suffered injuries on his clavicle bone and was got admitted in Opposite Party No.3 hospital where he remained admitted from 06.07.2019 till his death i.e. 08.07.2019 as he could not survive and breathed his last in the hospital of Opposite Party No.3 on 08.07.2019. After that, the complainant being widow and nominee of deceased insured, lodged the insurance claim with the Opposite Parties and completed all the formalities, but the Opposite Parties repudiated the claim of the complainant vide repudiation letter dated 13.02.2020. Said repudiation of claim by the Opposite Parties is not legal, genuine. Thereafter, the complainant many times visited the Opposite Parties and requested to make the insurance claim under the policy, but the Opposite Parties did not pay any heed to the request of the complainant. Due to the aforesaid illegal and unwarranted acts of the Opposite Parties, the complainant suffered huge mental tension and agony and as such there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to pay the insurance claim of Rs.20 lakhs alongwith interest @ 24% per annum and compensation, damages and costs of Rs.1 lakh.
2. Opposite Party No.2 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable against the answering Opposite Party. The complainant has concealed the facts regarding death of Kamaljit Singh as the claim is alleged on the ground of road accident while driving motor cycle and hit by some animal. The answering Opposite Party perused the claim documents and noted that insured Kamaljit Singh died on 06.07.2019 claimed to be due to accidental injuries. A medical certificate of cause of death dated 08.07.2019 was submitted in this connection stating antecedent cause as post traumatic abscess on clavicular bone. However, during verification with issuing hospital authority, it is clearly confirmed that antecedent cause of death mentioned above was an erroneous statement and a fresh certificate confirming death of insured due to medical illness as natural death is issued. Death of insured due to ventricular tachycardia followed by sudden cardiac arrest and mode of death as ‘natural’ is clearly established, which falls beyond the scope of policy coverage. There is lack of any documentary evidence like police reports or post mortem examination reports, which could prove the claimed cause of death as accidental, hence the claim was repudiated by the Opposite Party No.2 vide letter dated 13.02.2020. Terms and conditions of the subject policy i.e. personal accident insurance policy states that coverage is limited to death on account of accident only and therefore, death due to any other reason falls beyond the ambit of terms and conditions of the subject policy. It is not denied that policy in question was issued in the name of Kamaljit Singh which was valid for the period 27.05.2019 to 26.05.2020, however, said insurance policy is strictly as per terms and conditions of the same and hence, there is no deficiency in service on the part of the answering Opposite Party. On merit, Opposite Party No.2 took up almost the same and similar pleas as taken up by them in the preliminary objections and it is prayed that the complaint being false and frivolous and the same may be dismissed.
3. Opposite Party No.3 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable. No deficiency in service has been attributed to the Opposite Party No.3 and from the allegations in the complaint, n o deficiency in service is made out. It is admitted that Kamaljit Singh was admitted in the hospital of Opposite Party No.3 with the history of known case of diabetes/ HTN-on 06.07.2019 with roadside accident followed by trauma on chest, patient was complying of chest pain on the right side and swelling was present on the upper side of chest. ECG was done. Patient was treated with antibiotics insulin and IV fluids. Patient was doing well, blood counts improved, cretinine levels came to normal. On 08.09.2019 at around 8.00 PM patient suffered sudden ventricular tachycardia. Patient was given cardiac shock of 200 joules and CPR (Cardio Pulmonary Resuscitation) started and done for about 20 minutes, but the patient did not respond and was a declared dead at 8.30 PM.. Best treatment was given to the patient Kamaljit Singh and there has been no negligence on the part of Opposite Party No.3. Moreover, no specific allegations of negligence have been made in the complaint and hence, the complaint against Opposite Party No.3 is not maintainable and the same deserves to be dismissed. On merits, Opposite Party No.3 took up almost the same and similar pleas as taken up by them in the preliminary objections.
4. In order to prove her case, the complainant has tendered into evidence her affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C29, affidavit of Gurmail Singh Ex.C30, affidavit of Sukhjit Singh Ex.C31 and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party No.2 also tendered into evidence the copies of documents Ex.OP2/1 to Ex.Op2/9, affidavit of Jatindera, Manager Ex.OP2/10 and similarly, Opposite Party No.3 tendered into evidence affidavit of Dr.Hitesh Kumar Ex.OP3/1 alongwith copies of documents Ex.OP3/2 to Ex.Op3/12 and thereafter, the Opposite Parties No.2 and 3 closed their respective evidence.
6. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
7. During the course of arguments, ld.counsel for the complainant as well as ld.counsel for Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as written reply respectively. We have perused the rival contentions of the parties and also gone through the record on file. The main contention of the complainant is that after the death of insured Kamaljit Singh, the complainant being his widow and nominee lodged the claim for the insurance amount with the Opposite Parties, but the Opposite Party No.2 repudiated the genuine and lawful claim of the complainant on the false and frivolous grounds. It is further contended by ld.counsel for the complainant that first of all, the the written version so filed by Opposite Party No.2 is not maintainable because the Opposite Party No.2 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party No.2 and as such, the written reply filed by Opposite Party No.2 can not be considered as legal document. On the other hand, ld.counsel for Opposite Party No.2 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complainant has concealed the facts regarding death of Kamaljit Singh as the claim is alleged on the ground of road accident while driving motor cycle and hit by some animal. Opposite Party No.2 perused the claim documents and noted that insured Kamaljit Singh died on 06.07.2019 claimed to be due to accidental injuries. A medical certificate of cause of death dated 08.07.2019 was submitted in this connection stating antecedent cause as post traumatic abscess on clavicular bone. However, during verification with issuing hospital authority, it is clearly confirmed that antecedent cause of death mentioned above was an erroneous statement and a fresh certificate confirming death of insured due to medical illness as natural death is issued. Death of insured due to ventricular tachycardia followed by sudden cardiac arrest and mode of death as ‘natural’ is clearly established, which falls beyond the scope of policy coverage. However, ld.counsel for the Opposite Party No.3 has contended that Kamaljit Singh was admitted in their hospital with the history of known case of diabetes/ HTN-on 06.07.2019 with roadside accident followed by trauma on chest, patient was complying of chest pain on the right side and swelling was present on the upper side of chest. ECG was done. Patient was treated with antibiotics insulin and IV fluids. Patient was doing well, blood counts improved, cretinine levels came to normal. On 08.09.2019 at around 8.00 PM patient suffered sudden ventricular tachycardia. Patient was given cardiac shock of 200 joules and CPR (Cardio Pulmonary Resuscitation) started and done for about 20 minutes, but the patient did not respond and was a declared dead at 8.30 PM.
8. Perusal of the contention of the ld.counsel for the shows that the written version filed on behalf of the Opposite Party No.2 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party No.2 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. In this regard, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
9. For the sake of arguments, for the time being, if the written reply filed by Opposite Party No.2 is presumed to be correct, we come to the merits of the case. It is not disputed that Kamaljit Singh was having saving bank account bearing No. 38300808244 with Opposite Party No.1 bank and he was insured with Opposite Party No.2 under the policy No.175092-0000-00/38300808244 for a sum of Rs.20 lakhs valid for the period w.e.f. 27.05.2019 to 26.05.2020, and during the policy period, said insured Kamaljit Singh died on 08.09.2019. The only dispute with regard to insurance claim is that whether Kamaljit Singh died due to roadside accident or natural death. In reply of Opposite Party No.3-Doctor as well as duly sworn affidavit of Dr.Hitesh Gupta Ex.OP3/1 it is clearly mentioned that Kamaljit Singh was admitted in their hospital with the history of known case of diabetes/ HTN-on 06.07.2019 with Roadside accident followed by trauma on chest. In prescription slip Ex.C11 it is also clearly written that “pain n chest/ swelling/ bodyache post road side trauma. Not only this, in the Medical Certificate of Cause of Death Ex.C24 in Column of cause of death 1(a) it is mentioned as “post traumatic (accident) abscess on clavicular bone and in next column ’48 hours’ under the head of “interval between on set and death approx” and date of death is mentioned as 08.07.2019 whereas Opposite Party No.2 is stating that Kamaljit Singh insured died on 06.07.2019. To fully clear such assertion and to come to the just conclusion, during the course of accident, Dr.Hitesh Gupta, (treating doctor of Kamaljit Singh, deceased) was called and he specially stated that he has rightly written as per his medical ethics, the cause of death on the Medical Certificate of Cause of death Ex.OP3/11 as mentioned above. On the other hand, to rebut these documents, the Opposite Party No.2 has failed to adduce any cogent and convincing evidence that the death of insured Kamaljit Singh was ‘natural death’. Moreover, the onus to prove that the death of the insured is a natural one and not an accidental death, shifts on the insurance company. In this regard, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 4346 of 2009 in case titled as Geeta Devi Vs. United India Insurance Company, decided on 28.04.2015 as held so. The relevant para No. 10 of the judgement is reproduced as under:-
“10. A brief perusal of the patient’s history shows that at the time of admission in the hospital, the insured had a fall in the bathroom, vomited blood and was in a semi-conscious state. The treatment record shows that the insured was taken to the hospital at 5.00 AM. Immediately proceding the fall in e bathroom and he died at 6.30 AM on the very same day. In can be safely construed that any internal in jury suffered by him on account of all in the bathroom has a direct nexus to his death. In fact, the hospital record clearly states that the insured did not suffer from any Chest Pain. The onus to prove that the death of the insured is a natural one and not an accidental death, shifts on the Insurance Company and they did not place any cogent or substantial evidence on record to establish their case that the death was on account of cardiac arrest and should, therefore, be inferred as a natural death.”
In such a situation the repudiation made by Opposite Party No.2 regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
10. In view of the above discussion, we are of the opinion that Opposite Party No.2-Insurance Company has wrongly and illegally repudiated the claim of the complainant. Consequently, we partly allow the complaint and Opposite Party No.2 -Insurance Company is directed to pay Rs.20 lakhs (Rupees Twenty Lakh Only) under the policy in question alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 12.02.2021 till its actual realization. The compliance of this order be made by Opposite Party No.2-Insurance Company within 60 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
Announced in Open Commission.
