DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.133/04.09.2008 Decided on : 04.06.2009 1.Smt.Jaswinder Kaur Widow of Sh.Laljit Singh S/o Sh.Gurbir Singh resident of Village Narinder Pura, Tehsil & District Mansa. 2.Kamaljit Singh minor son of Sh.Laljit Singh S/o Sh.Gurbir Singh resident of Village Narinder Pura, Tehsil & District Mansa, through his guardian, next fried and mother Smt.Jaswinder Kaur Widow of Sh.Laljit Singh. 3. Ravneet Kaur minor daughter of Sh.Laljit Singh S/o Sh.Gurbir Singh resident of Village Narinder Pura, Tehsil & District Mansa, through her guardian, next fried and mother Smt.Jaswinder Kaur Widow of Sh.Laljit Singh. 4.Smt.Sukhjit Kaur W/o Sh.Gurbir Singh, resident of Village Narinder Pura, Tehsil & District Mansa. ..... Complainants. VERSUS 1.State Bank of Patiala, Branch Budhlada, District Mansa through its Manager. 2.S.B.I. Life Insurance Company Limited, Turner Morrison Building, G.N.Vaidya Marg, Fort, Mumbai., through its Chief Marketing Officer. ..... Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.Preetinder Chahal, Advocate, counsel for the complainants. Sh.S.P.Gupta, Advocate, counsel for the Opposite Party No.1. Sh.Zanny Kath,Advocate, counsel for the Opposite Party No.2 Before: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S.Dhanoa, President. : 2 : This complaint has been filed by Smt.Jaswinder Kaur widow of Sh.Laljit Singh, their minor children Kamaljit Singh and Ravneet Kaur Kaur through their mother as next friend and natural guardian and Smt. Sukhjit Kaur wife of Sh.Gurbir Singh, all residents of Village Narinder Pura, Tehsil & District Mansa, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') for giving direction to the opposite parties for release of amount of insurance claim in the sum of Rs.1,00,000/- alongwith interest at the rate of 12 percent and for payment of compensation in the sum of Rs.50,000/- and litigation expenses for filing of this complaint. Briefly stated, the case of the complainants is as under:- 2. That complaint has been filed on behalf of minor Complainants No.2 & 3 by Complainant No.1, who is their natural guardian and her interest is not adverse to them, as submitted in the complaint. That Sh.Laljit Singh, husband of Complainant No.1 and father of minor complainants purchased a tractor after securing loan from OP No.1, who gave assurance, that in case he deposits a sum of Rs.300/- per annum, then he would acquire membership in the scheme launched by OP No.2, under which his legal heirs would be entitled to payment of a sum of Rs.1 lac in case of his death in some accident, but in case of natural death, they would receive a sum of Rs.50,000/-. Accordingly, a sum of Rs.300/- was deposited by Sh.Laljit Singh under the said scheme under Account No.01671064593 opened with OP No.1 on 9.9.2004. On 14.9.2004, at about 9 A.M., insured while connecting the cultivator with his tractor, fell on it and sustained deep wound in his arm. He was shifted to the hospital run by Dr.Raj Kumar at Mansa, and was referred to D.M.C.Hospital at Ludhiana, where due to spread of infection to other parts of the body, he expired on 16.9.2004. The complainants, being the legal heirs of the insured are consumers under the opposite parties, who are entitled to receive the amount of claim under the insurance policy received Contd........3 : 3 : by the OP No.2. They conveyed the intimation about the death of the insured and completed all the formalities for release of amount of claim, but the officials posted in the office of the opposite parties refused to pay the claim on one pretext or the other. The complainants have also sent registered letter on 9.3.2005, which has not been responded by the opposite parties. In the month of July, 2006, when the opposite parties refused to honour their claim, the complainants filed complaint No. 137 on 28.7.2006 in this Forum which was disposed of on 27.10.2006 with the direction to the opposite parties, to decide their claim. In compliance with the said order, complainants submitted their claim again alongwith requisite documents, but the opposite parties refused to honour the same in the month of October, 2007. Thereafter the complainants filed application No.2 on 8.1.2008 under Section 25/27 of the Act in this Forum and the same was disposed of vide order dated 10.7.2008 on the plea that their earlier complaint has not been decided on merits. As such, there is deficiency in service on their part, because of which complainants have been subjected to mental and physical agony and been forced to spend avoidable expenses for filing of complaint. Hence this complaint. 3. On being put to notice, opposite party No.2 filed written version, resisting the complaint, by taking preliminary objections; that there is privity of contract between the answering opposite party and OP No.1, who is Master Policy Holder and not between the complainants and answering opposite party; that complaint is not maintainable, because as per Clause No.5(a) of Schedule I of the insurance policy , claim is payable if death of insured takes place after 45 days from the date of commencement of risk thereunder, but in the instant case death of the insured has taken place within a period of 8 days from the date of issuance of the master policy. It is admitted that as per Sub Clause (b) of the said Schedule, claim is payable within a period of one year in the sum of Rs.1 lac, if death is caused in accident, but it is asserted that in the present case Contd........4 : 4 : death of the deceased has not taken place due to accident; that neither there is any deficiency in service nor negligence on the part of the answering opposite party, as such, complaint is not maintainable in the Consumer Forum; that complainants have no locus standi to file the complaint, because they are not consumers and this Forum has no jurisdiction to entertain and try the complaint; that complaint has been filed with malafide intention to harass the answering opposite party and to pressurize them to release the amount of claim and that complaint being false and vexatious, is liable to dismissed . On merits, it is admitted that Sh.Laljit Singh secured insurance cover under Super Suraksha Scheme launched by the answering opposite party for the persons maintaining account with OP No.1 under Master Insurance Policy No.820010001203 secured by OP No.1 for an assured sum of Rs.50,000/- in case of natural death after execution of the policy and in the sum of Rs.1 lac in case of death in accident. It is reiterated that insured expired on 16.9.2004, eight days after securing of Master Insurance Policy, by OP No.1 for its account holders and his death is not accidental, as such, claim has been rightly repudiated as per terms and conditions of the policy. It is also submitted that answering opposite party called for submission of certain documents vide his office letters dated 17.1.2007, 20.4.2007, 21.5.2007, 31.5.2007 and 13.6.2007 to enable him to ascertain the cause of death, but complainants failed to produce any cogent proof. It is contended that cause of death as mentioned in the medical certificate secured from the hospital concerned, deceased insured had history of acute renal failure and cause of death was upper limb Cellulites & Septicemia, as such, insured died due to natural death because of which complainants are not entitled to seek direction from this Forum for release of amount of claim and payment of compensation and costs for filing the instant complaint. The averments made in the complaint in different paragraphs have been specifically denied. At the end prayed, has been made for dismissal of the complaint Contd........5 : 5 : with costs. 4. Learned counsel for the opposite party No.1 suffered statements that he does not want to file written version and that written version filed by Opposite Party No.2 be treated as written version by Opposite party No.1 also. 5. On being called upon, by this Forum, to do so, complainant No.1 tendered in evidence her affidavit Ext.C-1 and copies of documents Ext.C-2 to C-7 and closed evidence. On the other hand, learned counsel, for the opposite party No.2, has tendered affidavit of Sh.V.Srinivas Ext.OP-1 and copies of documents Ext.OP-2 to OP-11 before he closed evidence, whereas opposite party No.1 made a statement, closing his evidence by suffering a statement that documents relied upon by the OP No.2, be read in evidence on behalf of his client for disposal of the case. 6. We have heard the learned counsel for the parties and perused the oral and documentary evidence, adduced on record, by the parties, carefully, with their kind assistance. 7. At the out set, learned counsel for the complainants Sh. Preetinder Singh Chahal, Advocate, has submitted that factum of death of insured mentioned in the complaint is fully proved by the duly sworn affidavit of complainant No.1 and copies of documents and the said evidence has gone uncontroverted, as no direct evidence regarding cause of death of the insured, has been produced on record by the opposite parties. Learned counsel argued that word 'accident' has to be liberally construed because it also includes secondary causes of accident, as such, even if, contents of the affidavit of complainant No.1 are not corroborated by the affidavit of any other person, conclusion may be drawn about the exact cause of death from the copies of medical documents, as insured died after his admission in the D.M.C. Hospital Ludhiana after he sustained deep wound due to spread of infection, as such, justification given by OP No.2 for repudiation of the claim lodged by the complainants by invoking Contd........6 : 6 : exclusion clause contained in the policy, is not justified and there is deficiency in service on their part. Learned counsel urged that deficiency in service on the part of the opposite parties is apparent on the face of the record and due to repudiation of the claim in arbitrary manner, they are liable to release the amount of claim and to make payment of compensation and costs, as prayed for in the complaint. In support of his contentions, learned counsel has relied upon 1995 ACJ 1207 Madras Metropolitan Water Supply and Sewerage Board versus Karmal wherein it has been held by the Hon'ble Madras High Court that accident itself implies that it may happen at any point of time with or without knowledge of the person who suffers by it and it cannot be proved always by direct evidence. Learned counsel has further relied upon 1995 CRI.L.J. 17 Imran Khan versus State of Madhya Pradesh wherein it has been held at Page No.19 by the Hon'ble Madhya Pradesh High Court that a wound may cause death either directly or indirectly and it operates as a direct cause of death when person immediately or soon after its infliction dies and there is no other cause for death. It is further held that certain kinds of injuries are not immediately followed by serious consequences, but injured person may die after a long time or short time and his death may be as much a consequence of the injury as if it had taken place on the spot. Learned counsel has further relied upon 1990 ACJ 333 Brestu Ram versus Anant Ram and others wherein it has been held by the Hon'ble Himachal Pradesh High Court that accident was not reported to the police by the injured or by a doctor who treated him did not make a medico-legal case. It was held that adverse inference can be drawn because of failure to report the accident to the police of the injury. 8. On the other hand, learned counsel for the Opposite Party No.1, Sh.S.P.Gupta, Advocate, has submitted that his client cannot be burdened with any liability because he has only secured the policy for welfare of his account holders and claim lodged by the complainants, has Contd........7 : 7 : to be honoured by the OP No.2 if this Forum comes to the conclusion that repudiation thereof by them is not justified and complainants are entitled to payment of some amount. Learned counsel argued that factum of issuance of policy by OP No.2 in the name of deceased insured, who has deposited the amount of premium, is not disputed, as such, there is no deficiency in service for which OP No.1 may be burdened with compensation and costs of filing of the instant complaint. 9. At the stage, learned counsel for OP No.2, Sh.Zanny Kath, Advocate has submitted that complainants are not privity of contract between the opposite parties, as such, they are not consumers because of which complaint in the Consumer Forum is not maintainable and it has no jurisdiction to entertain and try the same. Learned counsel further argued that complainants are bound by the terms and conditions of the policy issued by the Master Policy Holder as per which they are not entitled to payment of any amount on account of compensation because they have failed to prove any positive evidence that death of the insured has taken place as a result of accident. Learned counsel argued that his client has rightly repudiated the claim of the complainants invoking clause 5(a) of Schedule I attached providing that risk thereunder commence after 45 days from the date of commencement in case of natural death, until it is proved, that death has taken place by accident. Learned counsel argued that OP No.2 is a Public Sector company, as such, it cannot be directed to release the amount of claim against the terms and conditions of the policy. Learned counsel has argued that as per documents tendered in evidence by his client, it is established that death of the insured was natural, as such, it cannot be inferred on the basis of the affidavit of Complainant No.1 alone that it is a result of accident. Learned counsel urged that complaint is false and vexatious which may be dismissed with compensatory costs. Learned counsel has further argued that the complainants have failed to produce the FIR, post mortem report and did not report the factum of death to the Contd........8 : 8 : police, as such, the present complaint is liable to be dismissed. Learned counsel has placed reliance upon unreported order dated 29.7.2008 passed by the Hon'ble National Commission in Revision Petition No.984 of 2008 titled as Kavita Daluka versus SBI Insurance Company Limited & another Ext.OP-11, wherein it has been held by the Hon'ble National Commission that effective date of commencement of the risk would be after expiry of 45 days of the date of issuance of the policy in case of natural death, as exclusion clause is part and parcel of the insurance policy and orders passed by the Consumer Forum below was held to be suffering from jurisdictional error on account of which Revision Petition preferred by the complainant was dismissed. 10. Admittedly, Sh.Laljit Singh, husband of Complainant No.1 joined as member of Master Insurance Policy floated by OP No.2 after he opened account with OP No.1 and deposited a sum of Rs.300/- on 9.9.2004. As per copy of death certificate Ext.C-2, he expired on 16.9.2004 i.e. within a period of one week. Earlier the complaint filed by the complainants bearing No.137 on 28.7.2006 was dismissed vide order dated 27.10.2006 by this Forum with direction to lodge claim with the opposite parties , who were directed to dispose of the same within a period of 7 days, as evident from the copy of said order Ext.C-3. The execution application filed by the complainants bearing No.02 on 8.1.2008 was dismissed vide order dated 10.7.2008 Ext.C-6 on the same ground with the liberty to the complainants to file fresh complaint on the same cause of action. The opposite parties have produced on record copy of insurance policy Ext.OP-2 including Schedule I forming part thereof. Clause 5(a) provides as under: In the event of death of the Member at any time after 45 days from the date of commencement of risk, subject to the policy being in full force, but not later than the Member completing the age of 60 years , to pay the beneficiary or the grantees, the Contd........9 : 9 : amount of sum assured. The sub clause (b) of the said Clause runs as under: In the even of death of the Member at any time after commencement of risk, due an accident, subject to the policy being in full force, but not later than the Member completing the age of 60 years, to pay the beneficiary or the grantees, double the amount of sum assured. 11. The bare reading of these provisions makes it clear that in case natural death of the insured takes place within a period of 45 days from the date of commencement of the policy, then he is not entitled to the payment of any amount, but in case of accidental death, no such condition has been laid for payment of claim under the rules. This view is further substantiated by Clause 1 of General Conditions forming part of the policy and its Schedule wherein it is provided that benefit referred to under 5(b) in Schedule I shall become payable only where the death is caused due to an accident by violent,m visible and external means and shall result in bodily injury or injuries to the Member independently of any other means. In the instant case, there is no evidence except affidavit of Complainant No.1 about the cause of death of the insured by fall on cultivator. Since the opposite parties have not produced any direct evidence regarding cause of death of the insured for adjudication of controversy, reliance has to be placed on other documentary evidence available on record for adjudication of the controversy. The complainants have not denied the admission and death of insured in D.M.C.Hospital at Ludhiana. As per their plea, he sustained deep injury in his arm on 14.9.2006 at 9 A.M. for which he was taken to the hospital run by Dr.Raj Kumar at Mansa from where he was referred to D.M.C. Hospital Ludhiana on even date. The opposite parties have also produced on record copy of death certificate Ext.OP-7 issued by the said hospital, as per which insured was admitted on 15.9.2004 and died on 16.9.2004 due to Cardiorespiratory Arrest. This Contd......10 : 10 : remark given in the certificate has to be read in consonance with the primary cause of death given in preceding lines as per which the deceased after sustaining injury in the upper limb developed cellulites, septicemia and acute renal failure, which are subsequent consequences of deep injury sustained by him, as deposed on solemn affirmation by the complainant No.1 in affidavit tendered in evidence by her, who is the best witness in the absence of any other person. The opposite parties have not produced on record any other document which might have been issued by the D.M.C. Hospital, Ludhiana. As per the medical dictionary, meaning of the word Septicemia is presence of pathogenic bacteria in the blood, which if allowed to progress, the organism may multiply and cause an overwhelming infection and death. The opposite parties have also mentioned in Ext.OP-5 that primary cause of death of the insured was cardiac arrest and secondary cause was Cellulites & Septicemia. These facts are mentioned again in the death certificate Ext.OP-7 issued by the D.M.C.Hospital, Ludhiana. The investigator of opposite parties had relied upon the certificate issued by Sarv Sh.Mohan Singh S/o Jeet Singh and Gurwinder Singh Chahal S/o Jagveer Singh, co villagers of the insured, but they have neither examined these witnesses nor their investigator to establish their plea that he died of cardiac arrest. Even in document Ext.OP-8, it is mentioned that deceased has been suffering from Cellulites & Septicemia. Therefore, in the light of our above discussion, we have come to the conclusion that repudiation of the claim of the complainants by the OP No.2 vide their letter dated 16.8.2007 Ext.OP-10, is not justified and there is deficiency in service on his part, due to which the complainants, have suffered mental and physical agony and had to incur avoidable expenses for filing of the instant complaint. The lodging of FIR or performance of post mortem examination is not the pre-requisite of release of payment under the insurance policy as the facts are clear from the evidence available on record. Therefore, no ground is made out Contd......11 : 11 : to non suit the complainants on that score for non production of copies of FIR and post mortem report or due to non reporting of factum of death to the police. There is no dispute as to settle principle of law laid down in the judgment relied upon by the learned counsel for OP No.2 above, which is in consonance with the stand taken by us. At the same time we are of the considered opinion that as we are inclined to award interest on the amount of claim to the complainants, therefore, the Opposite Party No.2 cannot be burdened with compensation on that score simultaneously, although he cannot escape liability to make payment of costs of litigation. 12. However, no liability can be fastened upon Opposite Party No.1 because claim has to be honoured by OP No.2 as per contract between the opposite parties under the terms and conditions of the policy, who has categorically admitted in the written version, that insured was adopted as member of the Master Insurance Policy secured by Opposite Party No.1 for benefit of account holders. The factum of deposit of amount is not disputed and is proved by the copy of receipt Ext.C-7, tendered in evidence by the complainant. Therefore, complaint against Opposite Party No.1 is bound to fail. 13. For the aforesaid reasons, complaint against Opposite Party No.1 is ordered to be dismissed, but is accepted against Opposite Party No.2 with a direction to release an amount of Rs.1,00,000/- to the complainants in equal share under the policy in question issued in the name of Sh.Laljit Singh, along with interest at the rate of 9 percent per annum from the date of repudiation i.e. 16.8.2007 Ext.OP-10 till date of actual payment and Rs.1,000/-, on account of costs of filing the complaint. The compliance of the order be made within the period of two months from the date of receipt of the copy of this order. The amount to the extent of share of minor complainants No.2 and 3 be deposited in any Nationalized Bank or Post Office to be opened in the name of complainant No.1 Jaswinder Kaur widow of insured as their guardian for specific period Contd......12 : 12 : depending upon the rate of interest which better serve their interest who shall renew to them from time to time, but the amount shall be payable to the minors on attaining the age of their majority. However, Complainant No.1 will be entitled to withdraw the amount of interest, if she so desires periodically and use the same for welfare of the minor complainants for which she shall be accountable to them on attaining the age of majority. 14. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 04.06.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
