Tripura

West Tripura

CC/11/32

Khokan Debbarma. - Complainant(s)

Versus

The Regional Manager National Insurance Co. Ltd. Other. - Opp.Party(s)

Mr.K.Deb

19 Jun 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

    CASE NO:  CC- 32 of 2011

 1. Sri Khokan Debbarma,
S/O- Late Tanu Kumar Debbarma,
Krishnanagar, Agartala, 
West Tripura.

2. Sri Dibakar Debbarma,
S/O- Khokan Debbarma,
Krishnanagar,
Agartala, West Tripura.        ............Complainants.

         ______VERSUS______
            
1. The Regional Manager,
National Insurance Company Ltd.
Regd. Office-3, Middeton Street, 
Kolkata-700071,

2. Senior Divisional Manager,
National Insurance Company Ltd.
India Exchange Place, Kolkata -700001,

3. Manager, 
Golden Multi Services Club,
Paradise Chowmuhani, Agartala, 
West Tripura.            ..…..Opposite Parties. 

                    __________PRESENT__________

 SRI S. C. SAHA
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SHR. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

For the Complainant         : Smt. Kalyani Roy and
                  Smt. Sarama Deb,
                  Advocates.
                       
For the O.P. No.1 & 2    : Mr. A. Roy Barman and
                  Mr. Sujit Kr. Banerjee
                  Advocates.
                  
For the O.P. No. 3        : Mr. D. K. Biswas and 
  Mr. S. S. Debnath,
  Advocates. 
                

JUDGMENT  DELIVERED  ON : - 19.06.15

J U D G M E N T     
        This is a complaint U/S 12 of the Consumer Protection Act, 1986 (herein after referred to as 'the Act') filed by the Complainant No.1, Khokan Debbarma, Colonel Chowmuhani, Krishnanagar, Agartala, West Tripura against the O.Ps, namely National Insurance Co. Ltd. and 2 others over a consumer dispute alleging negligence and deficiency in rendering service on the part of the O.Ps.        
The fact of the case as gathered from the record is that the wife of the Complainant No.1, Smt. Sarbari Chakma, since dead, subscribed to 'Janata Personal Accident Insurance Policy' in the sum of Rs.5 lakhs for the period from 31.03.2003 to 30.03.2018. The number of the policy was 100300/47/01/ 9600022/ 02/ 96/ 30442. The policy was purchased from National Insurance Company Ltd. through  the 3rd party agent, Golden Multi Services Club, Paradise Chowmuhani, Agartala, West Tripura. On 04.02.2009 the life assured suffered death due to burn injury. The incident was reported to Agartala Women P.S. The gist of information was recorded in the G.D. Book vide Agartala Women P.S. G.D.E. No- 92 dated 04.02.2009. The complainant no.1, husband of the deceased life assured, being the nominee  U/S 39 of the Insurance Act preferred claim under the policy along with all relevant documents to the O.P. No.3 for settlement but inspite of repeated demands the O.Ps did not settle the claim. Findings no other alternative, he served an Advocate's notice upon the O.Ps demanding early settlement of the claim but all to no avail. According to the complainant, the conduct of the O.Ps constituted negligence and deficiency in service. Hence, this complaint.

3.        During pendency of the proceeding, as per direction of the Hon'ble State Commission, the minor son of the Complainant No.1, Dibakar Debbarma, was impleaded as Co-complainant. 

4.        The complaint was contested by the O.P. National Insurance Company Ltd. by filing written objection stating, interalia, that the deceased life assured Sarbari Chakma being instigated by her husband (the Complainant No.1) committed suicide by setting herself on fire. As per 'Exclusion Clause' of terms and conditions of the policy of insurance, the company shall not be liable for payment of compensation if the death is occurred due to suicide or attempted suicide. As the deceased life assured committed suicide on the provocation given by the Complainant No.1, he is not entitled to get the benefit of the policy. It is denied that there was any deficiency on the part of the O.P. Insurance company in any manner whatsoever.

5.        The case against the O.P. No.3, Golden Multi Services Club, the 3rd party agent of the O.P. Insurance company, has been proceeded exparte by an order dated 19.09.11 passed by this Forum as he remained absent on consecutive dates without any steps.
6.        In support of the case, the complainant No.1 has examined himself as P.W. 1 and his son, Dibakar Debbarma, the Co-complainant as P.W. 2 and has proved and exhibited the following documents:
    Exhibit 1- Letter of the Senior Divisional Manager dated 28.07.10,
    Exhibit 2- Copy of Policy of Insurance,
    Exhibit 3- Copy of claim form,
    Exhibit 4- Copy of Death Certificate,
    Exhibit 5- Copy of Survival Certificate,
    Exhibit 6- Copy of P.M. Examination Report,
    Exhibit 7- Copy of Advocate's Notice dated 21.01.11,
    Exhibit 8- Reply to the Advocate's notice,
    Exhibit 9- Copy of judgment dated 24.08.11 passed by the Ld. Additional Sessions Judge(Court No.2), West Tripura, Agartala in Case No- ST- 54/2010.

No evidence either primary or secondary has been adduced on behalf of the O.Ps.

        FINDINGS:
8.        The points that would arise for consideration in this case are:
        (i) Whether the O.P. insurance Company did any wrong by not settling the claim on the ground that the case of the complainant is not covered by the 'Exclusion Clause' of the terms and conditions of the policy of insurance; 
        (ii) Whether the action of the O.Ps amounted to negligence and deficiency in service.   

9.        We have already heard argument advanced by the Ld. counsel appearing for the complainant. Also perused the pleadings, documents on record and evidence adduced by the complainant side meticulously.

10.         It is the plea of the O.P. Insurance company that the deceased life assured Sarbari Chakma suffered death following 100% burn injury. On the death of the life assured, a case was registered on 05.02.09 being Agartala Women P.S. Case no- 24/09 U/Ss. 498A/302/201 IPC. During the course of investigation, the Complainant No.1, the husband of the deceased life assured, was arrested. On completion of investigation, the investigating agency filed charge sheet U/S 498A/306 IPC against him. As per 'Exclusion Clause' of the terms and condition of the policy of Insurance, if any death is caused by self inflected injury, suicide or attempted suicide, the claim is not covered by the such policy. According to the O.P. Insurance Company, since the deceased life assured committed suicide by setting herself on fire as a consequence of abetment, the claim is not payable under the policy.

11.        Now, let us examine whether the repudiation of claim preferred by the Complainant No.1 on the sole ground that the deceased suffered unnatural death by committing suicide is sustainable.

12.        Indisputtedly, the death of the deceased life assured was not homicidal. The P.M examination report (Exhibit-6) discloses that the deceased suffered death due to 100% burn injury. So, it can be unhesitantly said that the death of the deceased was an unnatural death. In case of unnatural death, there are two probabilities either suicidal or accidental. It appears that on an F.I.R. lodged by the deceased's mother with West Agartala Women P.S.,  a case was registered bearing no-24/09 U/S- 498A/302/201 IPC. During the course of investigation, the police arrested the Complainant No.1. On completion of investigation, the investigating agency filed charge sheet against him U/S 498 A/306 IPC for exercising mental or physical cruelty upon the deceased and abetting her to commit suicide. The said criminal case being no-ST 54 of 2010 was tried by the Court of Additional Session Judge(Court No.2), West Tripura, Agartala. After full trial of the case the Ld. Additional Sessions Judge by a judgment dated 24.08.2011(Exhibit-9) acquitted the Complainant No.1 of the charges levelled against him as the prosecution miserably failed to bring home the charges.

13.         From the aforesaid judgment it is amply clear that the charges levelled against the Complainant No.1 for abetting the deceased to commit suicide was not proved. In this context, the next question would automatically arise then how the deceased caught fire and suffered 100% burn injury which resulted into her death.

14.        Now, let us examine whether the O.P. Insurance Company has succeeded in establishing that the death of the deceased life assured was suicidal to bring the case within the ambit of  'Exclusion Clause' of terms and condition of the policy of Insurance.

15.         The complainant No.1 and the Co-complainant as P.W. 1 and P.W. 2 respectively in their examinations in chief by way of affidavit have disputed the fact of death of the life assured as suicidal. The said witnesses were not cross examined on behalf of the O.P. Insurance company. The O.P. Insurance company also did not adduce any evidence in rebuttal. As a result, the evidence led by the complainant side has remained unshaken. In absence of any evidence to the contrary, we are to rely on the evidence adduced by the complainant side.

16.        The Hon'ble National Consumer Disputes Redressal Commission in a Revision Petition No-1786 /2014(IDVI Federal Life Insurance Co. Ltd. Vrs. Mrs. Anuva Ghosal and another) which was decided on 5th January 2015 held that ''it is trite that the issue of suicide is one of fact and burden to prove this fact is on the insurer. The exact nature of burden of proving suicide varies from case to case is undoubtedly, a difficult exercise, particularly when deceased family and their friends in the normal course, would he reluctant to cooperate. Moreso, when there is presumption of law against a normal and same person committing suicide, hence, the allegation of suicide has to be established from surrounding circumstances, like evidence of recent psychiatric care, treatment of depression, unhappiness, change in employment circumstances, interpersonal disruption at home or at work place, unusual behavior, etc. In the present case, neither the postmortem report dated 20.01.2010 nor the final report dated 21.05.2010, submitted by the police u/s 174 of the code of criminal procedure, 1973 on which, reliance has been placed by the insurance company to conclude that the insured had committed suicide, do not contain even an observation that it was a case of suicide. Admittedly, except for the said documents, no other evidence, primary or secondary, has been adduced by the insurance company to discharge the onus to prove that the deceased had committed suicide, so as to bring the claim under 'Suicide Exclusion Clause', mentioned in the policy terms and conditions. We are in complete agreement with the lower Fora that a mere assertion that the insured had committed suicide is not sufficient to repudiate the claim preferred by the Respondent No.1.''

17.         Relying upon the ratio of law laid down by the Hon'ble National Commission in the above said judgment, we are of the considered opinion  that the O.P. Insurance company has failed to prove by independent material evidence that the insured had committed suicide. That being so, the repudiation of the claim preferred by the complainant No.1 was wrong and unjust which constituted deficiency in service on the part of the O.P. Insurance Company.

18.         In the result, therefore, the complaint U/S 12 of the Act filed by the Complainant No.1 is allowed on contest. The O.P. National Insurance Company Ltd. is directed to pay to the complainants the sum assured Rs.5 lakhs with interest @ 6%  P.A. from the date of institution of the case before this Forum on 29.04.11 till the payment is made in full. The O.P. Insurance company is further directed to pay Rs.5 ,000/- to the complainant for mental agony and harassment together with Rs.2000/- as costs of litigation.

19.        Out of the above said amount, the complainant No.1, Khokan Debbarma, the husband of the deceased, will get 1/3 share and the rest 2/3 share will be paid to the Complainant No.2, Sri Dibakar Debbarma, the son of the deceased. The entire amount payable to the Complainant No.2 be kept in a Fixed Deposit Scheme at least for 5 years with UCO Bank, District Court Branch, Agartala.

20.                  A N N O U N C E D

 

SRI S. C. SAHA
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 

SHRI. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.