Per Mr.Narendra Kawde – Hon’ble Member:
1. Complainant Shri Santosh Umakant Jawadwar, has filed this complaint alleging deficiency in service against the Opponent – Tata AIG General Insurance Co. Ltd. (hereinafter referred to as ‘the Insurance Company’), for repudiation of the claim payable under the Insurance Policy on account of death of Complainant’s wife late Smt. Kalpana Santosh Jawadwar and also additional benefits of releasing educational allowance to the daughter of the Complainant available under the policy.
2. Factual matrix of the case is that the Complainant subscribed to “Accident Guard” policy bearing No. 020001364400 effective from 27th February, 2004 to 26th February, 2005. The Insurance Policy extended insurance cover to the family of Complainant including himself. Under the policy Complainant himself was insured to the extent of `1 crore. Complainant’s wife – Kalpana Santosh Jawadwar for `50 lac and his daughter Ms.Manasi Santosh Jawadwar for `10 lac. The policy issued by the Opponent Insurance Company was with certain terms and conditions appended to the policy document. On 20th February, 2005 (or 22.02.2005 as stated by the Opponent, however, death of death is not in dispute), Smt. Kalpana Santosh Jamadwar, pregnant wife of the Complainant died due to severe burn injuries on the floor of the kitchen at their residence. Initially police found death of late Smt.Kalpana Santosh Jamadwar, to be an accidental. Later on upon a complaint filed by Mr.Vijaykumar Gangadhar Kancharlawar, brother-in-law of the Complainant, police registered case under section 302, 498A and 34 of I.P.C., alleging that the Complainant abetted late Kalpana Santosh Jamadwar to commit suicide. Complainant was later on arrested and released on bail by the orders of the Hon’ble High Court. District and Sessions Court at Nanded delivered the judgement in Sessions Case No. 147/2005 on 07.04.2006 acquitting the Complainant for the offence punishable under section 306 and 498-A r/w 34 of I.P.C. as per provisions of Section 232 of Indian Penal Code and the Complainant was set at liberty. One of the issues framed by the District Sessions Court was whether death of Kalpana Santosh Jamadwar was homicidal, suicidal or accidental? Findings against this point were recorded as “possibility of accidental death cannot be ruled out”. The Ld.Advocate of the Complainant and the Opponent stated across the Bar that the State prosecution has not preferred appeal against the order of the Sessions Court, Nanded.
3. The Complainant first time notified the incidence of death of Ms.Kalpana Santosh Jamadwar to the Opponent Insurance Company on 22nd September, 2005, i.e. almost after seven months. The claim of `55 lac (Rs.50 lac + Rs.5 Lac) on account of death of Smt.Kalpana Santosh Jamadwar and the educational benefits payable under the policy to the daughter of the Complainant was repudiated on multiple grounds of terms and conditions incorporated in the policy. Opponent Insurance Company relied on following terms and conditions for repudiation of claim:
(i) Part-B of Condition no.(1) “suicide, attempted suicide (whether sane or insane) or intentionally self-inflicted injury or illness.…….. is not covered.”
(ii) Part-C of Condition no.(8) about notifying the claim to the Opponent which stipulates that “notice of claim must have been given by the Complainant within a period of seven days after an actual or potential loss i.e. from the date of death of late Smt. Kalpana Santosh Jamadwar and in any case not later than 30 days from the date of incidence”.
(iii) Part-C, condition no.(10) stipulates about “submission of claim form in all respects within a period of 30 days from the date of incidence.”
Correspondence between the parties did not resolve the issue of settlement of claim and aggrieved thereby the Complainant preferred this consumer complaint against Opponent Insurance Company claiming an amount of `55 lac (`50 lac basic sum insured plus `5 lac educational benefits) together with compensation of `5 Lac and costs of the litigation of `2 lac.
4. The Opponent Insurance Company vehemently denied the claim of the Complainant and opposed the consumer complaint by filing written version. The first and foremost ground taken by the Insurance Company is that the Complainant is guilty of “Suppressio Veri and Suggestio falsi” as the claim of the Complainant is in violation of contractual terms and conditions of the policy and made further averment. The Complainant did not inform the claim on account of death of his wife Smt.Kalpana Santosh Jamadwar within stipulated period of seven days or latest within 30 days from the date of occurrence of the incidence. Completed claim form together with required documents were not filed within stipulated period of 30 days. Death of Mrs.Kalpana S. Jamadwar was as a result of suicide as reported in the charge-sheet filed by the police. It was a case of 100% burn on the body of late Mrs.Kalpana S. Jamadwar. Sessions Court at Nanded observed the possibility of death of Mrs.Kalpana S. Jamadwar may be due to “suicide or accidental” only for the limited purpose of giving Complainant the benefit of doubt. There is no conclusive finding for cause of death of Mrs.Kalpana S. Jamadwar. Delay if any in notifying the incidence and filing the claim forms is in violation of uniform provisions under the terms and conditions of the policy viz. Condition Nos.8 and 10 of Part ‘Ç’of the Insurance Policy. Death due to suicide by the insured is excluded from the cover of insurance as provided in Condition (1) Para-B of the General Exclusion Clause of the policy. Taking into consideration all the facts, the insurance company tried to justify the repudiation of the claim.
5. Heard Ld.Advocates of the parties. Delay in notifying the incidence of death is attributed by the Complainant as he was mentally upset due to death of his wife and he was facing criminal prosecution and as his brother-in-law filed complaint with police station alleging his role leading to death of late Mrs.Kalpana S. Jamadwar. Complainant was arrested and landed in jail and on release on bail by the Court on 16.03.2005 the condition of entering the city of Nanded for another 90 days was imposed. Further he was given orders to attend Kandhar police station every day for the first 45 days and on alternate days for balance 45 days as he was facing criminal prosecution under section 302, 498-A and 34 of Indian Penal Code. It is further averred by the Complainant that he has made full disclosure of the incidence in his written statement given to the officer of the Opponent (one Mr.Joshi) leading to death of Mrs.Kalpana S. Jamadwar. He was under terrible mental stress and therefore, there was delay in notifying the incidence and submission of the insurance claim. Considerable time was also required to obtain required documents like death certificate, post mortem report etc. and therefore, he sought waiver from the Opponent for late intimation and filing of the insurance claim. The request for the waiver was not considered by the Opponent Insurance Company and repudiated the claim payable under the policy on the point of issue of filing the claim within a period as per the stipulation of the policy. The Ld.Advocate of the Complainant relied on various judgements and orders of the Hon’ble Apex Court, more particularly at Exhibit-‘Z’ of the complaint compilation. It was pointed out by the Complainant that this State Commission in its Appeal No.A/11/284 (the Oriental Insurance Co. Ltd. V/s. Managing Director Shri Vithal Sahakari Sakhar Karkhana Ltd. & Anr.), it was held that the stipulation as to notifying the cause of action and filing the claim within stipulated time of the policy are not mandatory conditions but they are directory in the nature and breach of these conditions does not empower Insurance Company to forfeit or foreclosure of the Insurance claim if duly settled as per the provisions of the law. Submissions of the Ld.Advocate of the Complainant on the point of late submissions of claim are sustainable as this Commission has been constantly holding time limit to file insurance claim is not mandatory condition but these are mere directions in nature. On failure to do there is no provision to forfeit or foreclose the insurance claim required to be settled as per the provisions of the law.
6. On perusal of the file placed before us, we observe that matter pertains to the year 2006. It was placed on the board for hearing and disposal from the sine die list. On occurrence of incidence of death of Mrs.Kalpana S. Jamadwar due to100% burn the case of accidental death was lodged. However, later on complaint from the brother of late Mrs.Kalpana S. Jamadwar, the Criminal Case No.65/2005 for the offence under section 498-A, 302 r/w 34 I.P.C. was registered in the concerned police station. Police filed charge-sheet stating that death of the insured was due to abetment to commit suicide caused by the Complainant. The Sessions Court framed one of the issues as “whether said death was homicidal, suicidal or accidental” among other grounds. The finding of the Sessions Court to the issue relating to death is “possibility of accidental cannot be ruled out”. It was observed in the judgement both possibilities, i.e. the death either may be suicide or it may be of accidental. Since abetment of the Complainant leading to death of late Mrs.Kalpana S. Jamadwar was not proved by the prosecution, the Complainant herein was acquitted and set at liberty. The Opponent Insurance Company heavily relied on the finding of the Sessions Court in the criminal case. Written version and pleadings of the Opponent Insurance Company are mainly based on the findings of the Sessions Court in the criminal case. There is no conclusive evidence adduced on record as admissible under Provisions of Section 13(4) of the Consumer Protection Act, 1986 to establish that death of the Complainant’s wife (Mrs.Kalpana S. Jamadwar) was as a result of suicide, (since abetment by the Complainant leading to commit suicide by Mrs.Kalpana S. Jamadwar was not proved for want of evidence on record) and the insurance company failed to adduce any documentary evidence to establish death of Mrs.Kalpana S. Jamadwar was due to suicide. Issues framed by the Sessions Court and finding thereon indicates that death due to suicide by abetment was not proved by the prosecution and therefore, the Sessions Court held “possibility of accidental death not ruled out”. Therefore, one of the grounds for repudiation of insurance claim (exclusion under condition (1) Part-B of the Policy) is unfounded and not sustainable in law.
7. In the course of pleading, the Ld.Advocate of the Opponent Insurance Company did not come forward with satisfactory explanation as to how the claim on account of alleged suicide can be repudiated without adducing tangible evidence to prove their point. Also no satisfactorily explanation came forward as to how the delay in notifying the claim in genuine cases empowers the Insurance Company to foreclose the claim and therefore the stipulation will not hold good in the eyes of the law. We have considered this case in its entirety and come to the conclusion that the Insurance Company could not prove operation of exclusion clause (1) of Part ‘B’of the policy terms and conditions for repudiation of the claim and stipulations in Part-B of Policy Condition Nos.(8) and (10), do not hold good.
8. While analyzing the claim payable under the Insurance Policy the total insurance cover is for `1 crore 60 lac, for the Complainant, his wife late Mrs.Kalpana S. Jamadwar and his daughter – Manasi. The policy was in force for the period from 27th February, 2004 to 26th February, 2005. Since the insured Mrs.Kalpana S. Jamadwar expired on 22nd February, 2005 the claim would be payable on account of her death to the Complainant to the extent of `50 lac. Further, the policy endorsement provides in schedule additional benefits of 10% of the principal sum insured towards children educational benefits to the Insured No.3 – Manasi Santosh Jamadwar, the daughter of the Complainant in the event of death of spouse. Therefore, the additional benefit is payable on account of accidental death. Admittedly, the incidence of death occurred while policy was in force which was notified to the Opponent on 22nd September, 2005 and complete claim papers were submitted on 19.10.2005. Claim was repudiated on 24.03.2006 by not waiving delay in intimation.
9. In view of the foregoing observations, we find that the Insurance Company has incurred deficiency in service to the Complainant by arbitrarily repudiating the insurance claim under the subject policy. We hold accordingly and pass the following order:
O R D E R
(i) Complaint is partly allowed.
(ii) The Opponent Insurance Company is directed to pay `55 lac (`50 lac on account of death of Mrs.Kalpana S. Jamadwar, wife of the Complainant and `5 lac towards educational benefit to Insured No.3- Ms.Manasi, daughter of the Complainant), within a period of 60 days from the date of this order, failing which the amount ordered to be paid shall carry interest @6% per annum from the date of expiry of stipulated period of 60 days of passing the order till its realization.
(iii) Rest of the claim of the Complainant not specifically accepted stands rejected.
Pronounced on 8th April, 2013
