Date of filing:02/08/2011 Date of disposal:29/08/2013
Complainant: Bharati Mondal, W/o.-Late Harendranath Mondal, Resident of Barabalidanga
P.O.-Sripally, P.S. & District-Burdwan.
VERSUS
Opposite Party: 1.The New India Assurance Company Ltd., service through Secretary having it
Its office at New India Assurance Building, 87, Mahatma Gandhi Road,
Fort, Mumbai.
2. Divisional Manager, New India Assurance Company Ltd., Balasore
Divisional Office, Church Building, 2nd floor, Vivekananda Marg,
Balasore-756001.
3. Branch Manager, New India Assurance Co. Ltd., Burdwan Division,
70, B.C.Road, Kalitala, Dist.-Burdwan.
Present : Hon’ble President: Sri Udayan Mukhopadhyaya
Hon’ble Member : Smt. Silpi Majumder
Appeared for the Complainant: Ld. Advocate, Subrata Ghosh
Appeared for the Opposite Parties: Ld. Advocate, Bishnu Pada Santra.
JUDGEMENT
This complaint is filed by the Complainant U/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the OPs as the OPs have repudiated the legitimate insurance claim arbitrarily and illegally.
The brief fact of the case of the Complainant is that her husband, since deceased during his life time obtained one JPA insurance policy from the OPs for the period from 31.03.1998 to 30.03.2013. The insured paid due premium and the Complainant was made nominee in respect of the said policy. Be it mentioned the policy was taken by the insured while he was posted at Balasore, Orissa in connection with his service and after retirement the insured started to reside regularly at his native place Burdwan along with his family members. On 17.02.2001 the insured met with a scooter accident at Burdwan and due to that accident sustained serious head injury. The insured was admitted at BMCH immediately after the accident. Thereafter he was shifted to CMRI, Kolkata. He remained in deep coma for a pretty long length of time after brain surgery and ultimately got release on 04.05.2001. The insured was just having life but he was unable to move or expressing anything and became totally disabled. He had no scope for lodging any claim under the said policy. He even could not inform any one about the existence of the policy itself. None had cared for causing any search even for ascertaining if there was policy because it was not natural to come in mind of any one when the insured was still alive and his well being and recovery was the prime concern. On 05.07.2002 the OP sent a letter to the insured informing that under condition no-5 of the said policy, the policy will be stand cancelled from 15.07.2002. The said letter was received by the Complainant. Even at that point of time the insured had no sense of expressing anything. The Complainant out of her own accord wrote a letter dated 18.10.2002 to the OP-2 intimating that the insured had met with an accident and the Op was requested to pay the assured amount as per terms and conditions of the policy. In the said letter it was categorically stated that the insured had suffered massive cerebral hemorrhage and due to that reason he had been permanently disabled and only at that point of time the Complainant came to know about the existence of the policy. The relevant medical certificate had been enclosed to that letter dated 18.10.2002. The OP without supplying any claim form by their letter dated 25.10.2002 informed the Complainant that the claim under the aforementioned policy is not sustainable under condition no-1 of the policy. Thereafter the Complainant filed a complaint before this Ld. Forum as a nominee alleging deficiency in service on the part of the OPs and the said complaint was registered being no-DF/292/2003. While adjudicating upon the said original complaint the Ld. Forum on 28.09.2004 was pleased to dismiss the complaint. Be it mentioned that the said complaint was not dismissed on merit. Thereafter the insured had filed another complaint being no-DF/140/2004 challenging the ground of repudiation of the claim which was communicated by the OP to the insured through the letter dated 25.10.2002. During pendency of the said complaint the insured died on 01.12.2004 and the name in cause title of the complaint has been substituted by the names of the present Complainant, her son and daughter. After hearing both parties this Ld. Forum had delivered its judgment on 27.03.2006 wherein it had been held that ‘the objection of the OP that the claim petition has not been filed within one month for rejecting the claim is not accepted and the Complainant was directed to submit all papers and documents of vouchers for the treatment of the insured on and from 17.02.2001 to the date of release on 04.05.2001 and the treatment for head injury after that with the OPs and the OPs were directed to consider those claim on receipt of the same within two months.’ Thereafter pursuant to the judgment dated 27.03.2006 the Complainant asked for the claim form vide letter dated 10.05.2006 and 21.08.2006, but the OP did not supply the claim form. Then the Complainant put the judgment into execution and the same has been registered as being no-Execution 19/2006. In the said execution case the Ld. Forum (vide order no-4 dated 15.03.2007) had observed that ‘…… there is no mention of claim form in it. I am now directing the Complainant to ask for claim form to the OP and the OP will send the same and the Complainant will then submit all papers and documents to the OP and the OP will consider the claim within two months from the date of receipt the same.’ In view of the order dated 15.03.2007 the Complainant on 30.04.2007 asked for the claim form from the OP and the OP supplied the same to the Complainant on 30.04.2007 and the Complainant submitted the claim form along with the papers and documents before the OP on 03.10.2007. But the OP did not settle the claim within two months from the date of submission of the claim form. On 29.01.2009 the Executing Forum was pleased to issue bailable arrest warrant against the OP due to non-compliance of the order of the Forum. Thereafter the OP by filing a petition had prayed for time for payment of the decreetal amount as well as recalling the warrant of arrest. On 16.03.2009 the Executing Forum was pleased to grant two weeks time and fixed on 16.03.2009 for payment as well as compliance. In the meantime on 12.03.2009 the OP filed a Revision challenging the orders dated 27.03.2006 (original judgment), 15.03.2007 and 24.02.2009 (Execution case) before the Hon’ble State Commission and the same has been registered being no-RC/09/22. The said Revision was disposed of on 29.04.2009 with the observation that ‘from the records we find that in the final order in the complaint case direction was given upon the OPs to consider the claim of the Complainant. Therefore when the Complainant submitted the claim form, it required consideration by the OPs. Communication to the Complainant of decision on such consideration is compulsory. If the decision goes in favour of the Complainant payment to him as per such decision is the only course left. If the decision goes against it the Complainant is entitled to challenge the same before the appropriate Forum/Court if such challenge is permitted by law.’ Thereafter the Ops repudiated the claim of the Complainant on the ground that i) the allegation of accident is not proved by any document such as police report, hospital record, post mortem report etc, ii) the accident allegedly occurred on 17.02.2001, whereas the insured expired on 01.12.2004, hence the death is not due to the accident as defined under the policy, iii) the claim was hopelessly barred as per policy condition, iv) the Complainant did not file any disablement certificate of the insured to establish that disablement was due to accident, v) that the insured suffered a head injury due to accident on 17.02.2001 is also not proved. The Op informed the fact of repudiation to the Complainant vide their letter dated 05.08.2009. From the documents it will be evident that the grounds of repudiation are arbitrary, illegal, improper and not tenable in the eye of law. Such repudiation is an example of deficiency in service and unfair trade practice on behalf of the OPs and due to that reason the Complainant being compelled has filed this complaint before this Ld. Forum praying for direction upon the Ops to pay her a sum of Rs.5,00,000/- towards assured amount under the policy, Rs.2,00,000/- as compensation due to mental agony, pain and harassment, Rs.50,000/- as litigation cost.
The petition of complaint have been contested by the OPs by filing written version wherein the OPs have contended that the husband of the Complainant was insured under the JPA Insurance Policy, but the policy was not covered the treatment cost, mental pain and litigation cost. The policy was cancelled by the OPs and such cancellation was duly informed to the Complainant. As per the terms and conditions of the policy the insured or the nominee was under obligation to give intimation to the Insurance Company within 12 calendar months from the date of its occurrence and after perusal of the documents and papers if the insurer thinks that the accident was the direct cause of the death of the insured or his partial/full physical disability, only then the Insurance Company is liable to pay the assured sum and if not paid within time then compensation may be given due to delay or any laches on the part of the Insurance Company. But in the instant case the conditions are not fulfilled, so the Complainant is not at all entitled to get any relief from the OPs. The Complainant has filed this complaint for getting compensation on the ground that her husband met with a scooter accident at Burdwan on 17.02.2001 which the OPs have not admitted. The Complainant had filed firstly one complaint being case no-DF/292/2003, but the said case had been dismissed on 28.09.2004 by this Ld. Forum because the Complainant did not file the complaint rightly. After dismissal the husband of the Complainant had filed another complaint being no-DF/140/2004 and during pendency of the complaint the husband of the Complainant died on 01.12.2004 and accordingly his legal heir i.e. the wife, son and daughter were substituted in the cause title of the complaint. But in the present case as the son and daughter of the actual insured have not been made necessary parties, this complaint is bad due to non-joinder of parties and on this account only this complaint should go. After hearing both parties this Ld. Forum had pronounced the judgment in the complaint case no-DF/140/2004 on 27.03.2006 on contest whereby order was given that ‘the complainant was directed to submit all the papers, documents/vouchers for the treatment of the insured on and from 17.02.2001 to 04.05.2001 and the treatment for head injury after that with the OPs and the Ops were directed to consider the claim within two months from the date of receipt of the same.’ From the said judgment it is revealed that the insured died on 01.12.2004 after long three years after the said accident and the death certificate lying with the record shows that the death was due to Myocardial Infraction and this cannot be due to the cause of accident and therefore the Complainant is not entitled to get any relief due to the death of the insured from the Insurance Company under the policy. The insured died not due to the alleged accident. On the basis of the said judgment dated 27.03.2006 the Complainant-Dhr put the decree by filing an Execution case with ulterior motive and in the execution case the Executing Court issued bailable warrant of arrest against the OPs on 29.01.2009 and thereafter the Executing Court directed these OPs-Jdrs to pay the decreetal amount in the order dated 24.02.2009. But as decreetal amount had not been mentioned in the judgment the OPs-Jdrs preferred Revision being no-RC/09/22 against the order of the Execution Case before the Hon’ble State Commission. The Hon’ble Commission had disposed of the Revision on 29.04.2009 and on the basis of the order of the Revision the Execution case was stopped through an order dated 19.11.2009. Thereafter the Complainant filed the instant case against for some unlawful gain. The OPs have mentioned that the Complainant is under obligation to prove the alleged accident by cogent and convincing documents i.e. FIR, Charge Sheet, Seizure List etc. The Complainant had also failed to produce any injury certificate etc. The Complainant did not lodge the claim within the stipulated period as mentioned in the terms and the conditions of the policy. Therefore the claim is barred by limitation because the Complainant did not intimate about the accident within one month from the date of the alleged accident. The Complainant has deliberately violated the terms and conditions of the JPA policy and the official record reveals that the Complainant did not file any proper claim form along with other requirements in respect of the claim. As there was no deficiency in service on behalf of the OPs, the Ops are not liable to pay any amount towards cost and compensation. According to the OPs the complaint is liable to be dismissed with exemplary cost.
The Complainant filed evidence on affidavit along with some papers and documents in support of her case. The Ld. Counsel has relied on the judgment passed by the Hon’ble State Commission, Haryana, Chandigarh, decided on 13.10.2005, in support of the instant complaint, [2005] 4 CPJ 554, in the case of National Insurance Company Limited vs. Mohini Devi.
We have carefully perused the entire record; several documents filed by the parties, treatment papers, copy of the judgment on which the Complainant has relied on and heard argument at length from the Ld. Counsel for the parties. It is seen by us that in the case in hand there are some admitted facts i.e. the husband of the Complainant, since deceased had obtained one JPA Insurance policy from the OPs which was valid for the period from 31.03.1998 to 30.03.2013, the present Complainant was declared as nominee in respect of the said policy, after getting serious head injury on 17.02.1001 the insured at first was admitted at the BMCH and thereafter shifted to the CMRI on 18.02.2001, the insured remained in deep coma for a pretty long period, brain surgery was done, the insured got release from the CMRI on 04.05.2001, the insured became 100% physically invalid as per the medical document of BMCH, on 18.10.2002 the Complainant intimated the Insurance Company about the accident and the said occurrence of the insured for the first time, the intimation was given after lapse of 30 days as mentioned in the terms and conditions of the policy, the Insurance Company had repudiated the claim in view of the condition no-1 as the intimation of the accident was not given to the Insurance Company within 30 days from the date of its occurrence, against such illegal repudiation one complaint was filed being no-DF/292/2003, which was dismissed as the same was not filed properly and rightly, thereafter another complaint was filed being no DF/140/2004 challenging the ground of repudiation, during pendency of the complaint the insured died, his wife, son and daughter were substituted in the cause title of the complaint, judgment was passed in the said complaint on 27.03.2006 in favour of the Complainant whereby the Complainant was directed to submit the documents relating to the treatment of the insured for head injury and after that and the Ops were directed to consider those claim within two months from the date of receipt of the necessary papers and documents from the Complainant, necessary medical papers and documents relating to the treatment of the insured was send to the Insurance Company for consideration of the claim, the Complainant put the decree into execution, bailable warrant of arrest was issued, the OPs-Jdrs were directed to pay the decreetal amount, against such order Revision was preferred by the Ops-Jdrs before the Hon’ble State Commission, the Hon’ble State Commission had disposed of the Revision on 29.04.2009 whereby it was held that if the decision goes in favour of the Complainant payment to him as per such decision is the only course left, if the decision goes against it the Complainant is entitled to challenge the same before the appropriate Forum/Court if such challenge is permitted by law, the OPs by issuing the repudiation letter dated 05.08.2009 upon the Complainant have repudiated the claim of the Complainant assigning some reasons, the Complainant prayed for dropping the execution case and in view of the State Commission’s order the Complainant has filed this complaint.
The Ops have taken one plea in their written version that this complaint is not maintainable and bade due to non-joinder of necessary parties as the Complainant has failed to make her son and daughter as parties in this complaint because they are also the legal heir of the insured and their names was substituted in the complaint no-DF/140/2004. In this respect we are of the view that the complaint being no-DF/140/2004 was filed by the insured himself and during its pendency as the insured being the Complainant in respect of that complaint died, his name was substituted with the names of his wife, son and daughter being his legal heirs. But the instant complaint has been filed by the wife of the deceased insured being a nominee in respect of the insurance policy. Admittedly the present Complainant was declared as a nominee in the said policy and standing on the strength of the nominee the Complainant has filed this complaint. As the son and the daughter were not declared as nominees, there is no irregularity regarding not making the son and the daughter as necessary parties in this complaint. Therefore in our view this complaint cannot be said bad or not maintainable due to non-joinder of parties. Moreover as per law due to non-joinder or mis-joinder of parties no complaint shall be dismissed on that score. So the plea of the Ops has no legs to stand upon.
Admittedly before filing this complaint two complaints were filed among which the complaint being no-DF/292/2003 was dismissed on the ground that the same was not filed in proper manner. Thereafter DF/140/2004 was filed and judgment was passed relating to that complaint and the said judgment went in favour of the Complainant whereby direction was made to the complainant to send down the necessary papers and documents relating to the claim to the Insurance Company and the Insurance Company was directed to consider the claim of the Complainant within two months from the date of receipt of the documents from the end of the Complainant. As the OPs did not comply with the same inspite of receipt of necessary papers from the Complainant, then the Complainant being Dhr was compelled to put the decree into execution. The Executing Court at first issued bailable warrant of arrest and then directed to comply with the final order of the Ld. Forum. But being aggrieved by the said order of the Executing Court the OPs being the Jdrs have preferred Revision before the Hon’ble State Commission. The Hon’ble Commission has disposed of the Revision holding that ‘if the decision goes in favour of the Complainant payment to him as per such decision is the only course left. If the decision goes against it the Complainant is entitled to challenge the same before appropriate forum/Court if such challenge is permitted by law.’ In view of the aforementioned observation made by the Hon’ble State Commission the Complainant being the Dhr by filing a petition before the Executing Court has dropped the said Execution Case and filed this complaint before this Ld. Forum as the claim of the Complainant has been repudiated by the Ops assigning some reasons. Be it mentioned that against the order of the Revision the OPs-Jdrs did not move before the Hon’ble National Commission, so the order of the Hon’ble State Commission passed in the Revision Case became binding on both the parties as the same has been reached in its finality. We have noticed that by issuing a letter dated 05.08.2009 the OPs have repudiated the claim of the Complainant on the following reasons:-
‘…….. In complaiance with the order reference, we do hereby in consideration of your captioned claim, in light of the terms and conditions of the Insurance Policy. (though adequate, proper documents in support of your claim has not been submitted by you till date) communicate to you our decision as follows:-
The Janata personal accident Policy covers only accidental injury, disablement and death sustained with 12 calendar months from the date of accident.
In your case the allegation of accident is not proved by any document whatsoever such as police report, hospital record, post mortem report etc.
The accident allegedly occurred on 17.02.2001, whereas the insured expired on 01.12.2004. Hence, the death is not due to the accident as defined under policy.
As per the policy condition-1 the incident of accident is to be reported within one calendar month after the event. In your case the alleged accident occurred on 17.02.2001 whereas the claim form was filed on 27.08.2007. As such, the claim was hopelessly barred as per policy condition.
You had not filed any disablement certificate of the insured to establish disablement due to accident.
The allegation of the insured suffering from accident on 17.02.2001 is not proved. That the insured suffered a head injury due to such accident on 17.02.2001 is also not proved.
In the light of the aforesaid, reserving our rights to supplement the aforesaid grounds, your claim is reference is hereby repudiated.’
Now we are to see whether the Insurance Company had rightly or arbitrarily repudiated the claim of the Complainant.
Firstly we are to deal one of the ground of repudiation that the incident of accident was to be reported within one calendar month from the date of accident as per the terms and conditions no-1 of the policy, but as the Complainant has failed to comply with the same, the claim is hopelessly barred by limitation. We have perused the terms and conditions no-1 of the policy and in this respect we are at one with the Insurance Company that the incident of the accident was not intimated to the Insurance Company within one calendar month. But considering the facts and circumstances we are to say that in this case it was not possible to intimate the Insurance Company by the Complainant or the nominee within one month from the date of accident because after the accident the insured was under deep coma for a pretty long time at the CMRI Hospital. According to the petition of complaint the insured got severe head injury due to scooter accident on 17.02.2001 and he was brought at the BMCH and on the next date he was referred to the CMRI, brain surgery of the insured was done and he got release from the CMRI on 04.05.2001. As the insured was unable to move and express anything and became totally disabled he could not speak anyone about the existence of the JPA policy. After getting one letter from the OPs’ end on 05.07.2002 the wife of the insured being the nominee came to know for the first time about the existence of such policy. It goes without saying that as her husband became totally disabled from mental and physical points of view it was the natural duty of his wife to look after him in every moment because the life of her husband was more precious than the insurance policy. The complainant intimated the OPs for the first time about the incident of the accident on 18.10.2002 and requested them to pay the sum assured as per the terms and the conditions of the policy. Be it mentioned the OPs was intimated by the Complainant through written correspondences and it was mentioned that her husband being the insured had suffered massive cerebral hemorrhage and due to that reason he became permanently disabled. But no case have been made out by the Ops that after getting such information the OPs issued claim form upon the Complainant, which was the prime duty of the Ops and without sending any claim form the Ops have repudiated the claim of the Complainant based only the intimation of the Complainant which cannot be permissible as per the Insurance Act. The Insurance Company did not show us any Rules or Regulation that without any claim form based only the intimation of the insured or nominee the Insurance Company is entitled to repudiate any claim whether legitimate or not. We have noticed that the Insurance Company has repudiated the claim as per the terms and conditions no-1 of the policy. In this respect we are to mention the judgment passed by the Hon’ble State Commission, Maharashtra, reported in 2005 (2) CPR 24, wherein it has been held that clause regarding intimation of claim within one month is directory, insurance claim intimated late cannot be rejected on its violation alone. In the paragraph no-4 of the said reported judgment it is written as follows:-
4. ‘Insurance Company cannot repudiate the genuine claim of the insured on the ground that there was no communication about accident within period of one calendar month. The relevant condition in the policy in this behalf is as under:-
“Upon the happening of any event which may give rise to a claim under this policy the insured forthwith give notice thereof to the Company. Unless reasonable cause is shown, the insured should within one calendar month after the event which may give rise to a claim under this policy, give written notice to the Company with full particulars of the claim”.
The very purpose of giving intimation within one calendar month is to have sufficient time for making scrutiny of the claim to avoid delay. The full particulars are insisted for the effective scrutiny of the claim. The phraseology used in the above clause would also give some latitude provided there is sufficient reason for late reporting. There is no penalty clause provided in the above clause in case claim is not intimated within one calendar month. Therefore we hold that condition with regard to the time limit is not mandatory. It is directory. This clause is meant for the interest of the insured in order to facilitate prompt scrutiny of the claim. This clause therefore cannot be used in detriment to the interest of the insured. Therefore the action of repudiation on the part of the Insurance Company is not at all justified.”
In our considered view as per the Principle of Natural Justice that the aforementioned judgment is applicable in the instant case as the insured was not in a position either physically or mentally to intimate the Insurance Company about the incident of accident within one month from the date of accident and on the whole he was not in a position to say anything about the existence of the policy to anyone in this world because the insured was under deep coma for a pretty long time which is evident from the medical record and after brain surgery he became 100% disable which is also evident from the medical document of BMCH where it is written by the Consulting Surgeon of the concerned Government Hospital that the patient is physically invalid, totally dependent on relatives and unable to perform normal function and to carry out any gainful occupation or activity. The Ops did not challenge this certificate as well as did not refer any contrary judgment in respect of the abovementioned judgment. Therefore having regard to the said judgment we are of the view that repudiation of the legitimate claim based on the condition no-1 by the Insurance Company was not at all justified and such action obviously suffers from deficiency in service.
In respect repudiation on the ground that the insured died not due to the accident, we are to say that admittedly the insured died not due to the accident and the Complainant did not lodge any claim form in this manner. The complainant had lodged the claim form stating that the insured became 100% physically invalid and disable due to the accident. We have noticed that the insured or nominee can lodge any claim due to accidental death or partial or full disablement or any other reason as stated in the JPA Insurance Policy. In the case in hand the insured got severe head injury due to scooter accident and was admitted at the BMCH and on the next day he was referred to the CMRI, where brain surgery was done and the insured remained under deep coma for a long period and after lapse of more than two months he got discharge from the CMRI. Due to the accident and after operation the insured became 100% physically invalid which is evident from the medical certificate dated 11.08.2001 issued by the BMCH. Thereafter the insured was suffering from myocardial infraction and ultimately died. The case of the Complainant is not that due to accident the insured died, on the contrary the Complainant has stated that in view of the policy condition as the insured or the nominee is entitled to get 100% sum assured from the Insurance Company in respect of the policy due to 100% disablement of the insured due to accident, the Complainant has lodged the claim in that manner or fashion. After careful consideration of the case of the Complainant as well as the treatment papers we are of the view that the Insurance Company has miserably failed to understand the meaning of the terms and the conditions of the policy and repudiated the claim on flimsy ground without any basis. Such action of the Ops certainly was full of error which cannot be entertained in the eye of Law. Admittedly for such the Complainant had to harass for a long period and face mental agony and pain for which the Complainant is very much entitled to get compensation.
The next point of repudiation of the claim was that the insured did not file any disablement certificate to establish the disability of the insured due to accident. In this respect we are of the view that if the Complainant did not file the same along with the claim form, then lacuna was on the part of the Complainant. But where the disablement certificate was under the possession of the Complainant and on which the entire claim is depended, it is difficult to accept that the Complainant did not submit the same. Admittedly the disablement certificate was issued by the surgeon of BMCH, which is a Government Hospital and the same was issued on 11.08.2001 wherein it is written that the insured became 100% physically invalid and unable to move without any help from his relatives. Therefore the Complainant has proved the claim by producing documentary evidence. As the Complainant became 100% physically invalid, in our opinion the Complainant being the nominee of the said policy is entitled to get 100% sum assured as per the policy condition if it is proved that due to accident the insured became fully invalid.
The main cause for repudiation of the claim is that the allegation of accident is not proved by any document whatsoever such as police report, hospital record, post mortem report etc and the insured suffered a head injury due to such accident is also not proved. In this regard we are to say filing of post mortem report cannot arise to prove the accident or accidental injury because after the accident though the insured got severe head injury, but was alive, so the question for filing the post mortem report does not arise at all. The case of the Complainant is that on 17.02.2001 due to scooter accident the insured got severe head injury and the case of the OPs is that though scooter accident occurred but there is no police report, FIR etc and as the said documents are not available accident cannot be proved and it cannot be said that the insured got accidental injury. In this respect the Ld. Counsel for the Complainant has relied on the judgment passed by the Hon’ble State Commission, Haryana, Chandigarh, reported in [2005] 4 CPJ 554. In the paragraph no-7 of the said judgment the State Commission has relied on some other judgments also. Viz-
- In case Rameshwar Dayal Tiwari vs. Branch Manager, the Oriental Insurance company Limited, 2003 (1) Judicial Reports Consumer 444, the fact was that the deceased had obtained a JPA policy, who was mentally below normal since the age of 3 years. The insured while sitting as a pillion rider fell from the scooter as a result of which he suffered fracture neck femur right and remained bed ridden for 25 days and thereafter died on 07.05.1997 for respiratory obstruction. The claim was repudiated by the Insurance Company on the ground that the cause of death was not accidental. There was also absence of FIR and post mortem report and for that reason it did not fall within the purview of the policy. The District Forum accepted the stand of the Insurance Company and dismissed the complaint. The State Commission allowed the appeal by observing that repudiation of the claim or treating the claim as ‘no claim’ was not justified for want of FIR and report of the accident. Notice was taken of the fact that the insured had suffered injuries by fall and not because of any disease. This judgment is applicable in the case in hand because the OPs did not make out any case that the insured got head injury not due to the accident and due to any other reason and in this respect no documentary evidence has been produced before us. So inspite of non-filing of any FIR or police report having regard to the aforementioned judgment we are of the opinion that to prove the accident FIR or police report is not necessary.
- In United India Insurance Company Limited vs. Gurdev Kaur, III (2002) CPJ 134 (NC), the deceased had slipped down from house roof top and subsequently died of a heart attack. The claim was repudiated, but the State Commission accepted the complaint and awarded compensation, which was upheld by the Hon’ble National Commission.
- In the case of Branch Manager, LICI vs. Raj Kumar Mishra, I (2000) CPJ 113= 2000 (I) CPR 32, the deceased had taken accidental policy in her name and while sitting on the motor cycle and on account of saree being caught in the wheel of the motor cycle, she fell down and sustained injuries and died after a month. The claim lodged by her husband was repudiated. Under these circumstances, death of the deceased was taken to be accidental and not natural. In this case, it was observed that non-furnishing of FIR and post mortem report would not mean that no accident had taken place.
Having regard to the abovementioned judgments it can safely be said that in the instant claim though no FIR or police report was filed, it cannot be said that accident did not occur and due to accident the insured did not get any head injury.
Going by the foregoing discussion we are of the opinion that the Complainant has successfully proved her case that her husband became 100% physically invalid due to accident and for this reason she is very much entitled to get 100% sum assured from the Insurance Company as per the policy terms and conditions. Therefore the complaint be allowed on contest with cost. As due to arbitrary repudiation of the legitimate claim the Complainant had to face mental agony and harassment for a prolonged period, in our view the Complainant is entitled to get compensation from the OPs as the action of the Ops suffers from deficiency in service. Admittedly the Complainant had to file this complaint before the Ld. Forum for redressal of her grievance, she is also entitled to get litigation cost from the Ops. Hence the Ops are directed to pay 100% sum assured to the Complainant either jointly or severally, to pay compensation of Rs.5000/- and litigation cost of Rs.2000/-. The OPs shall pay the abovementioned amount (100% sum assured + compensation + cost) to the Complainant within a period of 45 days from the date of passing this judgment; in default 100% sum assured shall carry penal interest @10% p.a. for the default. With the abovementioned observation the complaint is thus disposed of accordingly.
(Udayan Mukhopadhyaya)
Dictated and corrected by me. President,
D.C.D.R.F., Burdwan.
(Mrs. Silpi Majumder)
Member,
D.C.D.R.F., Burdwan.
(Mrs. Silpi Majumder)
Member,
D.C.D.R.F., Burdwan
