Date of Filing     : 20.12.2022

                                                                                                                        Date of Disposal: 27.07.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, MA.,ML, Ph.D (Law)                           .…. PRESIDENT

                 THIRU.P.VINODH KUMAR. B.Sc., BL.,                                                               …..MEMBER-I

                 THIRU.P.MURUGAN,M.Com.,ICWA(Inter)., B.L.,                                           ....MEMBER-II

CC. No.04/2023

THIS THURSDAY, THE 27^th DAY OF JULY 2023

Smt.N.Rani,

W/o.Late M.Nagabushanam,

Residing at No.5, Sekar Varma Nagar,

Tiruttani Taluk,

Thiruvallur District.                                                                                   ……Complainant.

                                                                               //Vs//

1.The Divisional Manager,

   The Oriental Insurance Company Limited,

   Motor TP HUB,

   No.216, Prakasam Salai,

   Broadway, Chennai 600 108.

2.The Manager,

   The Oriental Insurance Company Limited,

   No.153, JN Road,

   Thiruvallur, Tamil Nadu 602 003.                                          ..........Opposite parties.

Counsel for the complainant                                  :   M/s.V.Kishore Reddy, Advocate.

Counsel for the opposite parties                            :   Mr.E.Vijayakumar, Advocate.

This complaint is coming before us on various dates and finally on 14.07.2023 in the presence of M/s.V.Kishore Reddy, counsel for the complainant and Mr.E.Vijayakumar, counsel for the opposite parties and upon perusing the documents and evidences of both sides, this Commission delivered the following:

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties in the matter of repudiation of Insurance Claim with respect to Personal Accident Policy relating to the death of complainant’s husband along with a prayer to direct the opposite parties to pay the complainant’s claim of Rs.15,00,000/- with 24% interest per annum from 28.08.2020 to till the date of realization and to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with Rs.1,00,000/- towards cost of the proceedings.

Summary of facts culminating into complaint:-

Being aggrieved by the repudiation of the Personal Accident Claim relating the death of her husband the complainant had preferred the present complaint.

It was the case of the complainant that her husband Late Mr.M.Nagabushanam insured his vehicle Honda Shine two wheelers, Registration No.TN-20-CB-6237 with the opposite parties under policy No.414691/31/2020/2405 for a period from 31.03.2020 to 30.03.2021 and further renewed for the period from 30.04.2021 to 29.04.2022 vide policy No.414691/31/2022/75. On 28.08.2020 the complainant’s husband while traveling in the said vehicle met with an accident which was reported to the Police in Crime No.1319/2020.  The victim suffered Brain Injury and was taking treatment continuously but he suffered permanent total disablement.  On 14.09.2020 he got severe breathing problem and got operated in the brain after which he went into coma until his death.  On 08.05.2021 while he was alive at a coma stage his son claimed damage for the vehicle by way of an OD Claim which was settled on 15.01.2021. Even in the claim petition the condition of the complainant’s husband was mentioned as unconscious and coma stage.  Thus the complainant’s husband suffered total disablement until his death.  The complainant as per the personal accident policy intimated to the Micro Office of the 2^nd opposite party for claim application and the same was registered as file No.2022/3.  Though the claim was filed for a sum of Rs.15,00,000/- the 1^st opposite party on 18.08.2021 repudiated the complainant’s claim stating that the claim was made beyond six months period from the date of accident and hence could not be entertained.  Thus aggrieved a notice was issued on 28.08.2021 and the present complaint was filed for the reliefs as mentioned above.

The crux of the defence put forth by the opposite parties 1 & 2:-

Both the opposite parties disputed the complaint allegations contending interalia that after eight and half months from the date of accident the claim was filed and though Post mortem was done, the report was not submitted to show that the death occurred only due to the accidental injuries.  However, it was admitted by the opposite parties that the OD claim of the vehicle was settled by them.  It was further submitted that the Insurance Ombudsman had rightly rejected the complainant’s claim under Section III – Personal accident cover for owner-driver only if the death was caused by accidental external visible means which independent of any other shall occur within six calendar months of such injury and thus stating that as the claim was made beyond the period of six months from the date of accident the same could not be considered by the opposite parties and sought for the dismissal of the complaint.

On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex.28 was submitted.  On the side of opposite parties proof affidavit was filed but no document was filed on their side.

Points for consideration:-

1. Whether the repudiation of Insurance Claim by the opposite parties with respect to the Personal Accident Policy relating to the death of complainant’s husband Mr. M NAGAPUSHANAM has been substantiated and proved by the complainant by admissible evidence?
2. To what reliefs the complainant is entitled?

Point No.1:-

On the side of complainant the following documents were filed for proving the complaint allegations;

1. Copy of Insurance Policy No.414691/31/2020/2405 for the period from 31.03.2020 to 30.03.2021 dated 13.03.2020 was marked as Ex.A1;
2. Copy of FIR No.1319/2020 was marked as Ex.A2;
3. Death Certificate of deceased dated 21.06.2021 was marked as Ex.A3;
4. Legal heir Certificate dated 17.06.2021 was marked as Ex.A4;
5. Peacock Hospital First Aid treatment with consultation Record dated 28.08.2020 was marked as Ex.A5;
6. Discharge Summary issued by SIMS Hospital dated 03.09.2020 was marked as Ex.A6;
7. Discharge Summary issued by SIMS Hospital dated 14.10.2020 was marked as Ex.A7;
8. SIMS Hospital continuation treatment record dated 31.10.2020 was marked as Ex.A8;
9. Brain & Spain Hospital consultation Record dated 12.04.2021 was marked as Ex.A9;
10. Doctor home visiting record in Brain & Spain Hospital was marked as Ex.A10;
11. OD Claim Form was marked as Ex.A11;
12. Statement of Account of Mr.M.Nagabhushanam was marked as Ex.A12;
13. Copy of claim petition submitted with the Oriental Insurance Company dated 07.06.2021 was marked as Ex.A13;
14. Repudiation of claim by the 1^st opposite party dated 18.08.2021 was marked as Ex.A14;
15. Legal notice issued by the complainant to the 1^st opposite party dated 28.08.2021 was marked as Ex.A15;
16. Complainant issued letter to Insurance Ombudsman with postal receipt were marked as Ex.A16 & Ex.A17;
17. Reply from the office of the Insurance Ombudsman dated 22.09.2021 was marked as Ex.A18;
18. Complainant issued letter to Insurance Ombudsman with postal acknowledgement dated 30.09.2021 were marked as Ex.A19 & Ex.A20;
19. Reply from the office of the Insurance Ombudsman dated 15.11.2021 was marked as Ex.A21;
20. Complainant issued letter to Office of the Insurance Ombudsman with postal receipt was marked as Ex.A22;
21. Downloaded copy of Insurance Ombudsman called for an enquiry through online video conferencing dated 28.02.2021 was marked as Ex.A23;
22. Complainant issued letter along with required records to office of the Insurance Ombudsman with postal receipt dated 08.03.2022 was marked as Ex.A24;
23. Acknowledgement card for proof of delivery was marked as Ex.A25;
24. Copy of Insurance Ombudsman called for an enquiry through online video conferencing dated 11.04.2022 was marked as Ex.A26;
25. Order dated 06.09.2022 by the Insurance Ombudsman was marked as Ex.A27;
26. Copy of Personal accident policy conditions issued by the IRDA was marked as Ex.A28;

 Heard both learned counsels and perused the written arguments and other available pleadings and materials produced by both the parties.

The crux of the oral arguments adduced by the learned counsel appearing for the complainant is that from the date of accident i.e. 28.08.2020 the deceased was in a total disablement stage i.e., in coma stage until his death on 08.05.2021.  Further, for death due to the accident, post mortem is not necessary to prove the cause of death.  One of the grievances is that the terms and conditions was not supplied to them and hence they were not aware of the reasons for repudiation.  It is also vehemently argued by him that the opposite parties did not understand the meaning of clause IMT.15 in proper perspective. Thus citing the decision rendered by various State Commissions, Apex Court Judgments and National Commissions findings it is argued that the repudiation was not proper and sought for the complaint to be allowed.

On the other hand, the learned counsel appearing for the opposite parties argued that the claim form was submitted only after eight and half months and hence could not be entertained as not filed in time.  Further, the cause for death was not proved to have occurred only due to accident. Rs.40,000/- was already awarded towards own damage.  Citing the order of Ombudsman that it was in their favour, the opposite parties justified their repudiation of the Personal Accident claim of the complainant.

On perusal of the available materials we are of the view that the complaint has to be partly allowed.

The date of accident i.e. 28.08.2020 involvement of the insured vehicle and injury to the deceased and death of the victim was not disputed by either party.  The only dispute is that the cause of death is not proved.  However, on perusal of the complainant’s documents Ex.A5 to Ex.A10 it is seen that the deceased was taking treatment continuously for the head injury sustained by him as the result of accident.  Ex.A10 clearly mentions the recordings of BP and sugar of the deceased from 14.10.2020 till 08.05.2021 until the date of death to prove that the deceased was in continuous treatment. Further, Ex.A9 dated 12.04.2021, the Brain & Spain Hospital Consultation Record clearly reveals that the patient came with complaint of Right Fronto-Temparo-Parietal Acute or chronic SDH (Sub Dural Haemotoma, S/P (Speial Process) Parietal decompressive craniotomy and evacuation and skin leshion since one month. Thus it is proved that the deceased was taking treatment for the head injury he suffered continuously by the accident.  In the said circumstances even in the absence of a post mortem report this Commission can conclude that the death was caused only due to the accident.

The OD claim for the vehicle was already honored by the opposite parties wherein in the claim form it is mentioned that the insured person was hospitalized at SIMS Hospital for head operated and in coma stage which was not denied by the opposite parties. As such the status of the insured i.e. “coma stage” on the date of OD claim was not disputed by the opposite parties. Therefore now the opposite parties could not go back and contended the cause for death was not proved.

The main defence by the opposite parties is that the claim was filed beyond the period of six months and hence could not be entertained.  In IMT.15 it is mentioned as

“Personal Accident cover to the insured or any named person other than paid driver or cleaner (applicable to private cars including three wheelers rated as private cars and motorized two wheelers with or without side car (not for hire or reward).  In consideration of the payment of an additional premium it is hereby agreed and understood that the company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by the insured person in direct connection with the vehicle insured or whilst mounting and dismounting from or travelling in vehicle insured and caused by violent accidental external and visible means which independently of any other cause shall within six calendar months of the occurrence of such injury result in:- Details of Injury scales of compensation i) Death 100%, ii) Loss of two limbs or sight of two eyes or one limb and sight of one eye 100%, iii) Loss of one limb or sight of one eye 50% iv) Permanent total Disablement from injuries other than named above 100%”.

The phrase that “which independently of any other cause shall within six calendar months of the occurrence of such injury result in” was misinterpreted by the opposite parties that the claim should be made within six months from the date of accident.  However, the actual position is that the conditions i.e. death or total disablement should occur within six months of the resultant injury caused out of the accident i.e. the final result of the injury sustained due to accident either death or disablement.  The claim should be made within six months from the resultant injury would be the proper interpretation as normally no one could predict that death or any permanent disablement would occur within six months from the date of accident and could file a claim.  Thus when the deceased was continuously taking treatment from the date of accident for his head injuries sustained by him and was in continuous coma state until his death it is to be presumed that the claim was filed very well within six months period as found in the policy conditions i.e. within six calendar months of the occurrence of such resultantly injury caused by the accident.

As rightly pointed out by the complainant no evidence was submitted by the opposite parties that the terms and conditions were supplied to them at the time of handing over the policy.  In the said aspect the citation referred by the complainant rendered by the Apex Court in Civil Appeal No.1544-1545/2022  (Arising out of SLP (C) Nos.32397-32398/2017) in Anju Kalsi Vs HDFC Ergo General Insurance Respondents Company Limited & another dated 21.02.2022  squarely applies the present facts wherein it has been held that

 “the specific averment of the appellant in the consumer complaint was that save and except for the covering letter, neither the insurance policy nor its terms and conditions were furnished to the account holder or the appellant.  It was also averred that no document related to the insurance cover was issued to the account holder or the appellant by the insurer or the banker.  The insurance cover was governed by a policy between the first and second respondents.  The terms of the insurance cover had to be specifically communicated to the account holder.  The account holder had to be put on notice that the insurance cover would become available only after a transaction took place of the nature spelt out in the special conditions of the insurance policy.  Insistence on communication to the account holder is necessary because the policy was issued to the bank by the insurer”.

The decision rendered by The Madurai Bench of Madras High Court CC.No. CMA MD) No.1329/2012 and M.P.(M.D) No.1/2012 in the Oriental Insurance Company Limited Vs T.R.Subramani (Died) & Others it has been clearly mentioned that when the death had occurred after nine months of accident but the deceased was battling for his life due to the injuries it could be very well construed that the death occurred only due to the fatal injuries sustained by the deceased in the accident.

For the defence that the OD claim raised by the deceased was already settled and that on the date of making the OD claim the deceased was in good condition it could be seen that the claim form was signed only by one Mr.N.Nethaji, S/o. Nagabushanam.  Also, in the said claim from it has been mentioned that the deceased in a coma conditions.

Thus, for the above reasons we are of the opinion that repudiating the Personal Accident Policy claim of the complainant on a wrong interpretation that six calendar months for filing claim to be construed from the date of accident is a clear deficiency on the part of opposite parties as it is actually 6 calendar months from the resultant injury caused out of the accident. Thus we answer the point accordingly in favour of the complainant and as against the opposite parties holding that the repudiation of the Personal accident claim by the opposite parties amounts to deficiency in service.

Point No.2:-

As we have held above that the opposite parties had committed deficiency in service, we direct the opposite parties to process the claim of the complainant within six week from the date of receipt of copy of this order and to pay the claim amount of Rs.15,00,000/- to the complainant. Apart from the same for the mental agony and hardship suffered by the complainant we direct the opposite parties jointly and severally to pay a sum of Rs.50,000/- towards compensation along with cost of Rs.5,000/- towards litigation expenses to the complainant. 

In the result, the complaint is partly allowed against the opposite parties 1 & 2 directing them

a) To process the claim of the complainant and to pay the claim amount of Rs.15,00,000/- (Rupees fifteen lakhs only) to the complainant within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c)  To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant.

d) Amount in clause (a) if not paid within six weeks the amount shall attract interest at the rate of 6% from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 27^th day of July 2023.

        Sd/-                                                 Sd/-                                                                     Sd/-

MEMBER-II                                        MEMBER-I                                               PRESIDENT

List of document filed by the complainant:-

List of document filed by the opposite parties:-

Nil

    Sd/-                                                                Sd/-                                                      Sd/-        

MEMBER-II                                                 MEMBER-I                                      PRESIDENT