DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Smt. Veena Bhardwaj, w/o Late Sh. Sushil Kumar Bhardwaj, R/o H.No. 1326, Sector 22-B, Chandigarh.

                                                                                    ---Complainant

V E R S U S

1]       M/S United India Insurance, SCO No. 183-185, Sector 17-C, Chandigarh Through its Sr. Divisional Manager…

2]       Bank of Baroda, Sector 22-B Branch, Sector -22-B, Chandigarh through its Branch Manager….

---Opposite Parties

BEFORE:            SHRI LAKSHMAN SHARMA                    PRESIDENT

                        MRS.MADHU MUTNEJA                   MEMBER

                        SH.JASWINDER SINGH SIDHU            MEMBER

Argued By:      Sh.B.J. Singh, Advocate for the Complainant.

Sh.G.S. Ahluwalia, Advocate for the OPs.

PER JASWINDER SINGH SIDHU, MEMBER

1.             Complainant (hereinafter referred to as CC for short) has filed the present complaint against the Opposite Parties (hereinafter referred to as OPs for short), on the grounds that the late husband of the CC Sh. Sushil Kumar Bhardwaj opened bank account with OP-2 on 26.2.2004 and availed loan facility for renovation of his house. A loan of Rs.4,60,000/- was taken on 16.9.2006. Along with this loan, the deceased had obtained a “Uni Home Care Insurance Policy” bearing No. 110200/46/04/00548 valid from 19.11.2004 to 18.11.2019 by paying a premium of Rs.2540/- to OP-1. Through this policy OP-1 provided Personal Accident Risk cover of Rs.4,60,000/- and Fire Risk worth Rs.4,60,000/- for the House No. 1326, 2^nd Floor, Sector 22-B, Chandigarh, totaling to the sum insured of Rs.9,20,000/-(Annex.C-1).  The said Policy was valid for 15 years and covered a number of services, including accidental death or injuries insurance benefits.

                It is further stated that on 10.3.2006 the late husband of deceased suddenly fell on a water bucket due to slippery conditions as the renovation work was already in progress. After the fall the husband of the CC complained of abdominal pain and was taken to Dr. S.K. Khanna, Sector 22, Chandigarh, for consultation, on 11.3.2006.  Medical certificate annexed C-2.  Thereafter, he was admitted to General Hospital, Sector 16, Chandigarh, where he was operated upon and thereafter, was referred to PGI due to more complications. The medical certificate and discharge certificate of GH-16 is annexed as C-3 and C-4. 

                The late husband of the CC during his hospitalization at PGI ultimately expired on 4.8.2006. The death report is annexed as C-5 and thereafter, the registration of his death with Municipal Corporation of Chandigarh was done Annexure C-5/A.

                The late husband being covered under the policy (Annex.C-1) was entitled to a maximum cover of Rs.4,60,000/- and the CC being the beneficiary was entitled to the said amount on account of unfortunate death of her husband due to the said accidental fall. 

                The CC has alleged that she lodged her claim with OP-2 vide letter 01.10.2006 (Annex.C-6) and supplied all the documents as desired by OP-1 through its investigator K.K. Puri long back. The CC is surprised that even after having replied to different letters namely 23.10.2008, 5.12.2008 and 10.6.2009 were replied promptly by the CC through its communications dated 8.11.2008, 11.12.2008 and 10.6.2009, respectively. 

                The CC has stated that the OPs have failed to respond for such a long period and there is no intimation qua the status of the claim lodged by the CC with the OPs. Hence, alleging deficiency in service on the part of the OPs prays for directions to OP-1 to release the insured amount as per policy Rs.4,60,000/-, Rs.2,00,000/- on account of compensation for harassment & mental agony and other punitive damages, total amounting to Rs.7,35,000/-.

2.              On notice, OP No.1 & No.2 filed their respective versions.

3.              OP-1 has filed detailed reply/ version with regard to the present complaint and has contested the averments of the complaint on the grounds of preliminary objections wherein OP-1 has taken a stand that there is no cause of action, nor any deficiency in service on the part of OP-1 and citing the reason for the death of the insured as natural. Hence, the claim of the CC is not maintainable as the death was not attributed to any accident. 

                On merits, OP-1 has contested that though other contents of Para 1 need no reply, as the same are part of the record. But as the CC was a chronic patient of Cholecystitis with cholelithiasis (Annex.R-2) and had developed complications because of the same and the said complication was not attributable to the alleged slipping/ falling.

                The OP in para 4 of their reply had further stated that the CC was entitled to the claim only in the event of death due to accident; whereas, the husband of the CC died due to Enterocutaneous Fistula with Sepsis/ ileal perforation peritonitis, and the same is not connected to the alleged slipping/ falling and it has again added that the deceased was a chronic patient of Cholecystitis with cholelithiasis (Annex.R-2).

                The OP-1 declares that the claim of the CC was repudiated vide letter dated 17.12.2009 (Annex.R-4), as the CC was not entitled to the claim, since the deceased died due to diseases and not accident. The OP-1 further claims that the said repudiation is very much within its right and as there were valid grounds for the same, it does not amounts to deficiency in service on its part.  Furthermore, even the allegations of the CC with regard to the delay on the part of OP-1, are answered that it was the CC who failed to furnish all the required documents necessary for completing the formalities for the said claim. Hence, the same is also not attributed to deficiency in service on the part of OP-1.  Thus, finally, terming the present complaint to be false, fictitious and frivolous, requests the same to be dismissed with costs.

4.              OP-2 in its reply has cited that the CC had obtained house loan from OP-2 and also that the CC obtained a personal accident policy and fire risk cover for H.No. 1326, 2^nd Floor, Sector 22-B, Chandigarh, from OP-1.  It is further stated that the claim of the CC is as such required to be processed and settled by OP-1. Hence, OP-2 has nothing to do with the said claim application, the present complaint deserves to be dismissed against OP-2.  The said contents are part of Para 3 of the reply/ version of OP-2, which is properly verified and is signed by the Assistant General Manager, Sector 22-B of OP-2 and the same is supported by an affidavit of one R.K. Thakral, Assistant General Manager and the same is duly attested by an oath commissioner. OP-2 further prays for the dismissal of the present complaint on the ground that as there is no specific allegation of deficiency in service qua OP-2, hence, the same deserve dismissal with respect to OP-2. 

        OP-2 has contested the present complaint on the points of merit and has cited the above mentioned grounds for its dismissal. 

4(a)          During the course of adjudication the CC moved an application for amendment of the title of the present complaint, which on being not objected by the OPs was allowed vide order dated 29.08.2011.    

5.               Parties led their respective evidences.

6.              Having gone through the entire complaint, version of the OPs, the evidence of the parties and with the able assistance of the ld. Counsel for the parties, we have come to the following conclusions:-

i)         As in the present complaint, the fact with regard to the services availed from the OPs, by the late husband of the CC are very clear and unambiguous, the only point of contention that needs a serious observation is with regard to the fact that whether the late husband of the CC died a natural death or it was the complication which resulted due to the alleged fall on an iron bucket due to slippery wet ground, which culminated into internal injuries to the deceased. As these are the exact averments of the complaint. 

ii)        The CC has clearly mentioned in Para 2 of her complaint that her late husband had accidentally slipped on the wet floor on 10.3.2006, and fell on an iron bucket, which caused him injuries, resultantly, he felt pain in his abdomen. That he was initially taken to one Dr. S.K. Khanna, who advised him a bed rest and was to report again after one week i.e. by 17.3.2006. 

iii)       It was on 21.3.2006 that the late husband of the CC was admitted at GH/Sector 16, Chandigarh and was diagnosed with Ileal perforation. That on 24.3.2006, exploratory laparotomy was done and there were multiple perforations (8 in no.) in distal ileum was evident. It is also mentioned that necessary surgical procedure was conducted and thereafter, medical treatment was given from time to time. That the late husband continuously remained admitted from21.03.2006 upto 21.04.2006, Annex.C-3 & C-4.   Thus, it is clear that the late husband of the CC who complained of abdominal pain was due to the ileal perforations.

iv)       In the discharge certificate (Annex.C-4), it is clearly mentioned under the heading diagnosis acute abdominal (ileal perforation). It is also mentioned that the patient remained admitted till 21.4.2006 and necessary surgical and medical treatment was given from time to time. But the said discharge certificate does not mention any previous history or chronic ailment of the deceased who as per Annex.-4 is only of 43 years of age. 

v)        Even in the Medical Certificate of Cause of Death (Annex.R-1), issued by the PGIMER, Chandigarh, the cause of death as mentioned in sub-clause 1(a) is Enterocutaneous Fistula with Sepsis and under the col. 1(b) ileal perforation peritonitis is mentioned. The OPs here have failed to prove that the condition mentioned in sub clause 1(a) cannot be the manifestation of the condition mentioned in sub clause 1(b) or even  cannot be remotely connected to each other.

vi)       It is important to visit the reply/version of OP-1, wherein in Para 2 of merits, the complication which the deceased had developed was due to him being a chronic patient of Cholecystitis with cholelithiasis and as such cannot be  attributed to the alleged slipping/ falling on the iron bucket, as the OP-1 has stated this fact on oath, but there is no proof with regard to their having conducting any investigation before rebutting the contentions of the CC i.e. OP-1 should have brought on record some cogent and trustworthy evidence through which they had reached this conclusion. In the absence of any such investigation, we believe that OP-1 has merely assumed and as such, such assumptions and presumptions cannot take place of the proof.

vii)      During the progress of the present complaint, an application for seeking expert medical opinion was also filed on behalf of the CC and the same was allowed, vide order dated 3.12.2010. After which, the same was referred to the PGIMER, Chandigarh and the said report was duly received on 26.5.2011. 

As this Expert Opinion of PGIMER, Chandigarh clearly mentions that “in the absence of any reason attributed to the cause of perforation i.e. whether it was due to bowel pathology or because of trauma from fall on the bucket, it is difficult to comment about it. It is further stated that in order to give opinion a detailed examination of the record of GH/16 is required”. But it is also mentioned that if cause of small bowel perforation during first event was trauma, then it could lead to sequence of events, which, may have led to death of the patient. Furthermore, if the cause of small bowel perforation during first surgery was intrinsic bowel pathology, then it can’t be related to antecedent cause of death. In the light of above report, which has failed to establish specific reasons for the cause of death, we believe that the benefit of doubt should tilt in favour of the CC, as it was also incumbent upon the OP-1 to have sought an expert opinion before repudiating the claim of the CC, as we believe that the authorized signatory of OP-1 who has tendered his affidavit, is himself not a medical expert. Hence, the decision that OP-1 had taken while repudiating the claim of the CC is based on pure presumptions, surmises and conjectures.  As such, these deserve to be ignored, because they carry no weight in the eyes of law.

viii)    It is also important to visit the letters sent by the CC to OP-1 [Annex. C-7, C-8, C-9, C-10 & C-12] addressed to Mr. K.K. Puri, who was the Investigator appointed by OP-1.  As OP-1 and its investigator have failed to acknowledge the existence of these communications and also its failure to give a specific reply in their version proves that OP-1 had deliberately ignored the existence of these witnesses/ evidence. We feel, it was the moral responsibility of OP-1 to at least give due weightage that these letters deserved or should have cited some reason while ignoring the same.

ix)       Another important piece of evidence, which we feel can throw light on the facts relevant to this case is stated in Para 8-A of the complaint and the same can be corroborated from Annex C/13 and C/14. This also forms the part of the investigation report of K.K. Puri of Sai Investigating Service, engaged by OP-1, who had himself posed three specific questions, through his questionnaire presented to Dr. S.K. Khanna, to whom the deceased, was immediately taken to, after his alleged initial fall on the bucket. These were answered through a written statement. Dr. S. K. Khanna in his reply to question no-3 has stated that “Since pt hand Enteric fever as well as per GGH-16 report. A fall on the handle of the bucket could have caused/ precipitated the perforation mentioned in the GGhospital discharge slip”. Hence in the light of this statement it can be clearly said that the accidental fall of the late husband of the CC, on the iron bucket could have caused some internal injury. And it was resultant to this fall that the deceased suffered Ileal Perforations along with related complications and ultimately succumbed to them.  

x)              It is surprising that the reply of OP-2 is not in consonance with the present complaint as it is not the CC, but her late husband, who held an account with OP-2 and had also availed the said loan of Rs.4,60,000/- from OP-2 for the said renovation of his dwelling. Furthermore, it was the late husband of the CC who had subscribed for the policy with OP-1 and had paid the requisite premium for the same.

Xi)     In such circumstances our observations also gather

strength from the findings of the Hon’ble J K scdrc Jammu, in the case titled Naranjan Nath Vs Oriental Insurance Co. Ltd. & Ors.(complaint No.2790 of 2006- decided on 25.11.2010), wherein it is held that –“In case there is a doubt with regard to happening of a certain fact having bearing on Insurance risk the benefit of doubt has to flow in favour of insured –“ .

7.        Hence in the light of above observations we allow the present complaint and direct the OP-1 to:     

(a) Release the Insured sum of rupees 4,60,000 (lacs) along with an interest @9% per annum since the date of lodging of the claim.

(b) Further OP-1 is also saddled with Rs.7000/- as costs of litigation.

8.      The above said order shall be complied within 30 days of its receipt; thereafter OP-1 shall be liable for an interest @18% per annum on the said insured amount.  

9.          Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

19.10.2011                                                                      Sd/-

                    (LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)