IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 105/S/2015.                          DATED : 06.02.2018.   

BEFORE  PRESIDENT              : SMT. KRISHNA PODDAR,

                                                              President, D.C.D.R.F., Siliguri.

                      MEMBER                : SRI TAPAN KUMAR BARMAN.

COMPLAINANT              1.         : SRI SUBHAS HOM ROY,

  S/O Dwijendra Hom Roy,

  Vidhyapith Road, Deshbandhupara,

  P.O.- Siliguri Town, Dist.: Dajeeling – 734 004.

O.Ps            1.       : THE SENIOR DIVISIONAL MANAGER,

              United India Insurance Co. Ltd.,

              Palika Bazar, 3^rd Floor,

  Station More, G.T. Road,

              Burdwan – 713 101.

                                                2.         : THE BRANCH MANAGER,

              Union Bank of India,

              Sevoke Road Branch, (Br. Code 554804),

              Rainbow House, Basement Floor, Opp. LICI,

  Sevoke Road, P.O.- Siliguri,

  Dist.- Darjeeling – 734 001.

FOR THE COMPLAINANT         : Sri Monojit Roy, Advocate.

J U D G E M E N T

Smt. Krishna Poddar, Ld. President.

The brief facts of the complaint case are that the complainant is the husband of one Monisha Hom Roy.  Said Monisha Hom Roy (now deceased) purchased from OP No.1 a personal accidental insurance policy covered under the UNI Home Care Policy being Policy No.031600/46/07/90/00000060 valid from 11:10 hours of 10.05.2017 to the midnight of 09.05.2018 for a sum assured of Rs.4,00,000/- only and the said policy is assigned to the OP No.2.  The OP No.1 on receipt of the onetime premium of Rs.1,761.00/- against the said policy issued the policy cover note to the complainant. 

On 09.02.2013 at around 10.20 a.m. said Monisha Hom Roy fell from

Contd….P/2

-:2:-

height at her residence and suffered physical injury and she was immediately admitted to Dr. Chhang’s Super Speciality Hospital Pvt. Ltd. and there she was diagnosed to have received head injury with right subdural haematoma with multiple contusion with IV bleed and said Monisha Hom Roy succumbed to her head injuries on 19.02.2013 at 06.10 a.m. at Dr. Chhang’s Super Speciality Hospital Pvt. Ltd.  The OP No.2 intimated the death of Manisha Home Roy to the OP No.1 vide letter dated 22.02.2013 and requested for settlement of the claim in view of the said policy and following this on 04.04.2013 the OP No.1 appointed one Prasanta Banerjee of Pioneer Investigator (unit of General Insurance Investigation) addressed at 26/A/11, S. B. Neogi Garden Lane, Kolkata-700 036 as Investigator for investigating the death of Monisha Hom Roy.  On 03.06.2013 said Investigator submitted investigation report in connection with the death of said Monisha Hom Roy which was received by OP No.1 on 11.06.2015 and brought to the knowledge of OP No.2 vide letter dated 22.07.2013 being reference No.031600/Misc.Cl./0189/13-14.  At this OP No.2 against requested the Kolkata branch of OP No.1 to settle the claim at the earliest but the OP No.1 failed to do the same as brought to the notice of OP No.2 vide letter dated 19.08.2013 being reference No.031600/Misc.Cl./0242/13-14.  The OP No.1 vide letter dated 22.08.2013 intimated the OP No.2 that they have received the said investigation report and accordingly through the said letter requested the complainant and the OP No.2 for submission of the enclosed claim form duly completed and signed for their processing of their said claim and also requested inter-alia for submission of copy of Post Mortem Report and F.I.R. in respect of the loss.  The complainant along with duly filled in and signed claim form in connection with the said policy intimated the OP No.1 in writing vide letter dated 05.09.2013 that the said accident occurred inside the residence of the deceased and said Monisha Hom Roy (now deceased) was immediately rushed to the hospital for treatment and no foul play or criminal activity of any one was suspected and so the matter was not reported to police.  Hence, the question of getting a copy of FIR does not arise.  Since the matter was not a police case, no post mortem was conducted.  Hence, there is no question of obtaining post mortem report.  In this connection the OP No.2 also mentioned in letter being reference no.SEV/ADV/6652/2013 dated 05.09.2013 that the cause of said death is due to fall from height at the residence of the insured and the matter is known to OP No.2 and the claim submitted is genuine and enclosed the said duly filled in and signed claim form and the letter dated

Contd….P/3

-:3:-

 05.09.2013 of the complainant with it.  At this the OP No.1 vide letter dated 19.09.2013 sent a response to the OP No.2 in connection with the said letter dated 05.09.2013 of OP No.2 which is absolutely vague, arbitrary and beyond any reasonable understanding as to their response to the said letter dated 05.09.2013 of OP No.2 but did not send any reply to the said letter dated 05.09.2013 of the complainant.  Thereafter, the OP No.1 most unlawfully and arbitrarily closed the claim of the complainant vide letter dated 12.12.2013 being reference No.031600/claim close/0682/2013-14 addressed to the OP No.2 holding violation of policy condition with respect to the said policy as regards submission of post mortem report and FIR and complainant has come to learn the same from OP No.2.  It is pertinent to mention that OP No.1 has not sent any reply to the letter dated 05.09.2013 of the complainant nor has communicated in writing the factum of closure of claim of the complainant to the complainant at any point of time.  It is further pertinent to mention that the complainant at no relevant point of time has been supplied by OP No.1 with any document containing terms and condition of the said policy duly executed by and between the complainant and the OP No.1 and hence the aforesaid closure of claim of the complainant by OP No.1 is absolutely wrong and the policy adopted by OP No.1 in closure of the claim is bad in law and against the public policy.  OP No.2 vide letter dated 06.01.2014 being reference No.UBI/SEV/665-2/2014 requested the OP No.1 to settle the claim holding inter-alia that the closure of claim to be absolutely baseless and illegal but of no result.  At this the OP No.2 vide letter dated 30.05.2014 sought interference of Head Office of OP No.1 at Chennai but of no result.  At this on 17.06.2014 complainant lodged a complaint to the insurance ombudsman at 29, N.S. Road, Kolkata-700 001 against the OP No.1 and accordingly the same was registered and heard in presence of both the parties on 17.02.2015 and the claim of the complainant was refused by the Insurance Ombudsman vide award no.IO/Kol/A/GI/0176/2014-2015 dated 10.03.2015.  The complainant being legal heir of Lt. Monisha Hom Roy is entitled to the insured amount of Rs.4,00,000/- only under the said policy and is competent to enforce the same under the Consumer Protection Act, 1986.  Hence, this case.                

The OP No.1 & 2 entered appearance and contested the case by filing two separate written versions wherein the material averments made in the complaint have been denied and it has been contended inter-alia that the instant case is not maintainable.  It has been contended by the OP No.1 that cause of death

Contd….P/4

-:4:-

due to accident cannot be considered and accepted without the FIR to the Police Station and the post mortem of the dead body of the wife of the complainant are done.  The complainant neither made any complaint to the police station in respect of unnatural death of his wife nor he took any step for post mortem of the dead body of his wife Monisha Hom Roy which are mandatory provision of law in case of unnatural/accidental death.  It has been further contended by the OP No.1 that OP No.1 came to know from the Investigation Report of the Investigator that in spite of request by the hospital authority the complainant denied to take steps for doing post mortem of the dead body of his wife and therefore the cause of death was not disclosed to the OP No.1 for considering the death claim of the complainant for the accidental death of his wife.  It has been further stated by the OP No.1 that the claim application of the complainant was repudiated by OP No.1 as per policy condition under Section II and without the post mortem report and police report the claim application of the complainant could not be considered by the OP No.1 and therefore OP No.1 closed the claim on account of unnatural death of wife of the complainant.  It has been further stated by the OP No.1 that OP No.1 came to know from the hospital authority that one of the guardian of the deceased Monisha Hom Roy declared that they would not undergo the post mortem of the dead body of the wife of the complainant, even he has declared that they would not claim any documents for the purpose of insurance claim from Dr. Chhang’s Super Speciality Hospital Pvt. Ltd. and the actual cause of death might be suppressed by the complainant with some malafide intention, as such the complainant is not entitled to get any relief as claimed for and the instant case is liable to be dismissed.

It has been contended by the OP No.2 by filing a separate written version that the complainant has no cause of action to file the present case against the OP No.2 and the instant case is bad for mis-joinder ad non-joinder of proper and necessary parties.  It has been further contended by the OP No.2 that as the dispute is between the complainant and the OP No.1 and as no relief has been sought for against the OP No.2 in the complaint, so, the OP No.2 is entitled to be exempted from the cause title of the instant case. 

To prove the case, the complainant has filed the following documents:-

1.       Cover Note of the UNI Home Care Policy being policy No.31600/46/07/90/00000060.

2.       Case Summary of Manisha Hom Roiy (now deceased) dated 19/02/2013

issued by Dr. Chhang’s Super Speciality Hospital Pvt. Ltd. 

Contd….P/5

-:5:-

3.       death Certificate of Mansha Hom Roy being date of registration 22/02/2013

issued by Patharghata GP on 01.03.2013. 

4.       Letter dated 22.02.2013 of OP No.2 to OP No.1.

5.       Letter from Prasanta Bannerjee, investigator of ‘Pioneer Investigator’

(unit of General Insurance Ivestigation) addressed at 26/A/11, S.B.

Neogi Garden Lane, Kolkata – 700 036. 

6.       Letter dated 22.07.2013 being ref no. 031600/misc. Cl/0189/13-14.

7.       Letter being ref no.UBI:SEV:665-2:2013 dated 24.07.2013.

8.       Letter dated 19.08.2013 being ref no.031600/Misc.Cl/0242/13-14.

9.       Letter dated 22.08.2013 being ref no.031600/Misc.Cl./0251/13-14.

10.     Letter being ref no.SEV/ADV/665-2/2013 dated 05.09.2013.

11.     Duly filled in and signed claim form in connection with the said policy being

Policy No.31600/46/07/90/00000060 received by OP No.1.

12.     Letter dated 05.09.2013 of the complainant to OP No.1.

13.     Letter dated 19.09.2013 of the OP No.1.

14.     Letter dated 12.12.2013 being ref no.031600/claim close/0682/2013-14.

15.     Letter dated 06.01.2014 being reef no.UBI/SEV/665/-2/2014.

16.     Letter dated 30.05.2014 being ref no.SEV/ADV/1310/2014.

17.     Complaint to the Insurance Ombudsman at 29, N.S. Road, Kolkata –      700 001 against the OP No.1 dated 17.06.2014.

18.     Award No.IO/KOL/A/GI/0176/2014-2015 dated 10.03.2015 with covering letter dated 12.03.2015 of the Insurance Ombudsman at 29, N.S. Road, Kolkata – 700 001.

OP No.1 has filed the following documents :-

1.       Original Investigation report by the Investigator, Pioneer Investigator, consisting original following documents enclosed :

a.       Policy including the terms and condition and exclusion.

b.       Information letter by Dr. W.H. Chang, Chairman and director, dated 01.01.2013.

c.       Original declaration of Sri Sudip Hom Roy, S/o Late Monisha Hom Roy.

d.       Case Summary dated 19.02.2013 consisting 4 pages.

e.       Original certified copy of the award by the Insurance Ombudsment dated 10.03.2015. 

Contd….P/6

-:6:-

          Complainant has filed examination-in-chief supported by affidavit.

Complainant has filed written notes of argument.

OP No.1 has filed examination-in-chief.

          OP No.1 has filed Written Notes of Argument.

Points for determination

1.       Is there any deficiency in service on the part of the OPs ?

2.       Is the complainant entitled to get any relief as prayed for ?

Decision with reason

          Both the issues are taken up together for the brevity and convenience of discussion.

This is admitted fact that the deceased Monisha Hom Roy during her lifetime purchased from OP No.1 a personal accidental insurance policy covered under the UNI Home Care Policy being Policy No.031600/46/07/90/00000060 valid from 11.10 hours of 10.05.2007 to the midnight of 09.05.2018 for a sum assured of Rs.4,00,000/- and the said policy is assigned to the OP No.2.  It is also not disputed that OP No.1 on receipt of premium against the said policy issued the policy cover note in favour of her husband i.e., the present complainant.

This is the case of the complainant that said Monisha Hom Roy on 09.02.2013 at about 10.20 a.m. fell from height at her residence and suffered physical injury and she was immediately admitted to Dr. Chhang’s Super Speciality Hospital and there she was diagnosed to have received head injury with right subdural haematoma with multiple contusion with 1V bleed and said Monisha Hom Roy succumbed to her head injuries on 19.02.2013 at 6.10 a.m. at Dr. Chhang’s Super Speciality Hospital Pvt. Ltd.  The further case of the complainant is that the OP No.2 intimated the death report of Monisha Hom Roy to the OP No.1 vide letter dated 22.02.2013 and requested for settlement of the claim in view of the said policy and following this on 04.04.2013 OP No.1 appointed one Prasanta Banerjee of Pioneer Investigator who investigated the matter and submitted the investigation report on 03.06.2013 in connection with the death of said Monisha Hom Roy which was received by OP No.1 on 11.06.2013 and then the OP No.1 vide their letter dated 22.08.2013 being reference No.031600/MISC Clause/0251/13-14 intimated the OP No.2 that they have received the said investigation report and through the said letter requested

Contd….P/7

-:7:-

the complainant and OP No.2 for submission of the enclosed claim form duly completed and signed for their processing of the said claim and also requested inter-alia for submission of copy of F.I.R. and post mortem report in respect of the deceased Monisha Hom Roy.

It has been asserted by the complainant that the said accident of the deceased Monisha Hom Roy occurred inside the residence and immediate after the accident said Monisha Hom Roy was rushed to Dr. Chhang’s Super Speciality

Hospital for treatment and no foul play or criminal activity of any one was suspected and so the matter was not reported to police and in this regard the complainant intimated the OP No.1 in writing vide letter dated 05.09.2013 and in the said letter it has been narrated that cause of said death of Monisha Hom Roy was due to fall from height at her residence and matter is known to OP No.2 and the claim submitted is genuine and since the matter was not a police case, no post mortem was conducted and hence there is no question of obtaining post mortem report and FIR in respect of death of deceased Monisha Hom Roy. 

In order to substantiate the case complainant has submitted his examination in chief by way of affidavit and certain documents.  The OP No.1 also adduced evidence as OP W 1 and submitted certain documents.

In this case on the side of the OP No.1 the policy including the terms and conditions and exclusion and original investigation report prepared by the Investigator, Pioneer Investigator have been submitted.  On perusal of the terms and conditions of the policy it appears that it is mandatory condition as per the policy condition under Section II page vi that “Upon the happening of any event which may give rise to claim under this policy, written notice with full particulars must be given to the company immediately.  In case of death, written notice also of the death must, unless reasonable cause if shown, be so given before interment/cremation and in any case within one calendar month after the death. 

Proof satisfactory to the company shall be furnished of all matter upon which a claim is based, in the event of death to make post mortem examination of the body of the insured person/borrower.  Such evidence as the company may from time to time require shall be furnished and the post mortem examination report if necessary be furnished within the space of 14 days after demand in writing.” 

OP N.1 by sending a letter dated 22.08.2013 requested the complainant to

Contd….P/8

-:8:-

submit the post mortem report of the deceased Monisha Hom Roy and the copy of FIR as per terms and condition of the insurance policy but the complainant sent the prescribed form duly filled in together with a letter dated 05.09.2013 to the OP No.1 stating that the victim fell down from height in her residence and there was no foul play or criminal activity of any one suspected, so, no FIR was lodged and hence question of Post Mortem did not arise. 

It has been submitted by the Ld advocate of the complainant in course of  his argument that if death is caused due to an injury of serious nature at home, there is no requirement of a Post Mortem report and FIR.  But here we find that policy condition stipulates that in the event of accidental death post mortem examination of the body of the insured person is required.  The OP No.1 has enquired the matter by engaging an investigator.  Moreover the OP No.1 made enquiry in Dr. Chhang’s Super Speciality Hospital at Matigara, Siliguri where the deceased Monisha Hom Roy was admitted immediate after the incident and where she succumbed to death on 19.02.2013 at 6:10 a.m.  The death is alleged to be caused by an accidental fall from a height.  So, there is no hesitation to hold that the death was unnatural in nature and in such case of an unnatural accident/death it is required to be intimated to local police station and post mortem of the dead body is mandatory.  The OP No.1/Insurance Company has enquired the matter with the treating hospital where she breathed her last and in reply the hospital authority of Dr. Chhang’s Super Speciality Hospital informed vide their letter dated 01.10.2013 that “After declaring death information to the patient party, all of them requested us not to go through post mortem processes.  We explained demerits of this request and they can never go through any legal procedure and death claim.  But they assured us they will not claim any insurance money and give a declaration with two witnesses of the family.  Hence, we are compelled to take the dead body keeping that declaration.”  In this regard, OP No.1 also submitted the declaration given by the relative of the deceased one Sudip Hom Roy (son).  On perusal of the said declaration dated 19.02.2013 we find that the relatives of the deceased were not willing to undergo for post mortem procedure of deceased due to some religious purpose and in the said declaration it has been stated that in future the declarant will not claim any document for insurance purpose.  The declaration also bears the signature of two witnesses one is Abhishek Basu (nephew) of the deceased Monisha Hom Roy and another is Debasish Sinha (son-in-law) of deceased Monisha Hom Roy.

Contd….P/9

-:9:-

The death of Monisha Hom Roy was intimated to the OP No.1 on 22.02.2013 after cremation of the body.  From the contents of the complaint as well as investigation report of the Investigator appointed by OP No.1 it appears that complainant did not submit any written information by way of FIR to the local police station in respect of alleged accident of the deceased Monisha Hom Roy.  Even after admission of the wife of the complainant in Dr. Chhang’s Super Speciality Hospital till her death the alleged accident was not reported to the police station either by the complainant or by the hospital authority and due to non sending of any information regarding the alleged cause of accident to the police station, the police could not take any initiative for investigation to ascertain whether the deceased sustained any injury due to accident or whether the injury received by her by any unnatural incident.  It is also suspicious that neither the complainant nor the hospital authority thought it necessary to take appropriate step for post mortem of the dead body of Monisha Hom Roy.  On the contrary we find that the hospital authority informed the OP No.1 in writing that the relatives of the deceased Monisha Hom Roy gave a written declaration to the hospital authority stating that they are not willing to undergo for post mortem procedure of the deceased due to some religious purpose and in the declaration it has been further stated that in future the declarant will not claim any document for insurance purpose.  So, it is clear that it is the complainant who was not willing to inform the matter to the local P.S. and to lodge a complaint in respect of alleged accident happened to Monisha Hom Roy and as a result she succumbed to her injuries on 19.02.2013.  It is also apparent from the letter dated 01.10.2013 sent to the OP No.1 by Dr. Chhang’s Super Speciality Hospital as well as declaration submitted by the relatives of the deceased that they were not willing to perform post mortem of the dead body of Monisha Hom Roy.  As per terms and conditions of the insurance policy it is clear that the complainant is required to furnish the post mortem report of the deceased for getting the insurance claim in his favour.  Complainant has already referred the matter to the Insurance Ombudsman seeking relief and the report of the Insurance Ombudsman reflected that for non supply of post mortem report and FIR the complainant is not entitled to get any claim from the OP No.1 insurance company.  It is not disputed that the insured Monisha Hom Roy sustained serious head injury on 09.02.2013 and she was admitted to hospital and she ultimately succumbed to her injuries on 19.02.2013.  According to the complainant Monisha Hom Roy sustained injuries due to fall from a height and

Contd….P/10

-:10:-

it was an accidental fall and as a result she expired.  But it is required to be ascertained whether death was due to accidental fall or whether it was an unnatural death.  Without conducting post mortem of the dead body it cannot be ascertained how the death occurred to the deceased.  So, at this stage without having post mortem report and the copy of FIR the OP No.1 refused to give the claim to the complainant.  Complainant has stated that he was not aware of the terms and conditions of the policy as the same was not supplied at the time of commencement of the policy.  This submission of the complainant is without any basis as we know that at the time of taking policy the insured will go through the terms and conditions of the policy.  Moreover, from the above discussion it is clear that it is the complainant who did not want to perform the post mortem of the dead body and to make FIR to the local police station in respect of death of Monisha Hom Roy.  So, at this stage, this Forum is of the view that the complainant has not come before this Forum with clean hands and as such he is not entitled to get any relief.

          In the result, the case fails.                        

Hence, it is

                     O R D E R E D

that the Consumer Case No.105/S/2015 is dismissed on contest against the OPs but without cost.

Let copies of this judgment be supplied to the parties free of cost.