Punjab

Moga

CC/15/91

Babita Garg - Complainant(s)

Versus

United India Insurance Co. Ltd. - Opp.Party(s)

Sh. Roop Kumar Sharma

09 Mar 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

                                                                                                                                                C.C. No. 91 of 2015

                                                                                                                                               Instituted on: 20.11.2015

                                                                                                                                               Decided on: 09.03.2016

 

Babita Garg w/o Om Parkash s/o Harbans Lal c/o M/s National Tyres & Motors, Baghapurana, Tehsil Baghapurana, District Moga.

                                                                             ……….   Complainant 

Versus

 

United India Insurance Co. Ltd. Kotkapura Road, Baghapurana, District Moga, through its Manager.  

                                                                         .……. Opposite Party

 

 

Complaint under Section 12 of the Consumer Protection Act, 1986.

 

 

Coram:      Sh.S.S.Panesar, President

                   Smt.Vinod Bala, Member

                   Smt.Bhupinder Kaur, Member

Present:     Sh.Roop Kumar Sharma, Advocate Cl. for complainant.

                   Sh.Pawan Kumar Sharma, Advocate Cl. for opposite party.  

 

ORDER :

(Per S.S.Panesar, President)

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986  (hereinafter referred to as the 'Act') against United India Insurance Co. Ltd. Kotkapura Road, Baghapurana, District Moga, through its Manager (hereinafter referred to as the opposite party) for directing it to make payment of Rs.5,00,000/- under Janta Personal Accident Insurance Policy no.201204/47/1204/97 dated 18.04.1997 obtained by Harbans Lal s/o Sham Lal, to pay Rs.50,000/- as compensation on account of mental tension, harassment, damages and deficient services or to grant any other relief which this Forum deem fit and proper.

2.                 Briefly stated, the facts of the case are that one Sheela Devi wd/o Harbans Lal r/o Baghapurana was original beneficiary to get the present insurance claim relating to deceased Harbans Lal being his widow and Class-I legal heir. Said Sheela Devi had filed similar complaint on 6.2.2008, but during the pendency of that  complaint she died on 12.2.2008 leaving behind her legal heirs. After the death of said Sheela Devi, a dispute of succession between the  legal heirs had arisen and due to the reason, this Forum had given direction to the legal heirs to decide their dispute of succession from Civil Court vide order dated 15.5.2008. Later on, dispute of succession was resolved by mutual consent of legal heirs of deceased Sheela Devi and a mutation no.25504 was sanctioned in the name of present complainant, Babita Garg. One Harbans Lal s/o Sham Lal c/o M/s National Tyres and Motors, Baghapurana, got himself insured for Rs.5.00 lacs with opposite party vide Janta Personal Accident Insurance Policy bearing no.201204/47-1204/97 dated 18.04.1997 for a period of 10 years with effect from 18.4.1997 to 17.4.2007 by paying Rs. 1,250/- as premium. Under the said scheme, the insured Harbans Lal was covered under Standard Janta Personal Assurance Policy benefit, long term policy for 10 years. Said Harbansh Lal had fully complied with the terms and conditions of insurance policy and had submitted true and correct details to opposite party before issuing insurance policy. That due to accidental slip, hip of Harbans Lal got fractured on 18.9.2006 and he remained admitted in DMC Ludhiana for treatment and ultimately died on 16.1.2007 on account of fracture sustained by him due to accidental slip, which is direct and sole cause of death of Harbans Lal. The complainant is the daughter-in-law of said Harbans Lal and is the legal heir of original nominee, Sheela Devi wd/o deceased Harbans Lal. As per terms and conditions of insurance policy, the complainant is entitled for sum insured i.e. Rs.5.00 lacs alongwith interest @ 18% p.m from the date of death of Harbans Lal till realization on the said amount and opposite party is liable to make payment of said amount to the complainant. Earlier said  Sheela Devi  made several visits to opposite party and after her death, the  complainant also visited many times to opposite party, but they refused to make the payment.  Registered notice dated 28.2.2007 was also served upon the opposite party for payment of claim. On receipt of the  notice, opposite party demanded some documents for the settlement of claim, which were duly submitted, but all in vain. Thereafter, registered notice dated 5.1.2008 was sent to opposite party, but to no effect.

3.                Upon notice, opposite party appeared through his counsel and filed written reply taking certain preliminary objections inter alia that complaint is not maintainable; that the complainant has no locus standi to file the complaint; that the complainant is estopped by her own act and conduct; that the complaint is time barred; that the complainant has not complied with the terms and conditions of the insurance policy; that there is no deficiency in service on the part of opposite party and complaint may be dismissed on this score; that the complainant has not come to this Forum with clean hands; that the complainant has concealed, suppressed and misstated the material facts from this Forum. It has been further submitted that Harbans Lal s/o Sh.Shyam Lal got himself insured for Rs.5.00 lacs vide Janta Personal Accident Insurance Policy for a period of 10 years w.e.f 18.4.1997 to 17.4.2007, subject to the terms and conditions of the insurance policy. In fact, investigation report and medical opinion reveals that Harbans Lal was suffering from Diabetic Mellitus Type II since 1996 and was on oral anti hyperglycaemic drugs. Harbans Lal was weak due to loose stools and vomiting. On 18.9.2006, he fell down and got fractured his Femur bone. He was treated, operated upon and discharged on 9.10.2006 in satisfactory condition. Harbans Lal was readmitted at DMC Hospital after 25 days of discharge i.e. on 2.11.2006 for treatment of Diabetic Ketoacidosis and urinary tract infection. He was treated and discharged on 9.11.2006 in stable condition. Harbans Lal died on 16.1.2007 due to complications of Diabetic Mellitus and not due to accidental injury. The claim is not payable as per terms and conditions of the policy. As per terms and conditions of policy, the death of insured is to be reported immediately or unless reasonable cause be shown within one calendar month, but the death of insured was reported after two months. The complainant has not complied with the terms and conditions of the insurance policy. Further, as per terms and conditions of policy ……… "In the event of death to make a post mortem examination of the body of the insured". No post mortem was carried out in this case. Also, Sheela Devi or her legal heirs has not supplied the required documents despite repeated requests and reminders vide letters dated 24.4.2007, 14.5.2007 and 8.6.2007. Thus, the claim is not payable and opposite party repudiated the claim on the above mentioned grounds. Therefore, there is no deficiency in service on the part of opposite party as the claim was repudiated after thorough investigation. The complainant is not entitled to any claim.

               On merits, it is  admitted  that Sheela Devi had filed the complaint for the recovery of the amount before this Forum and she died during the pendency of the complaint and no legal heir of Harbans Lal or Sheela Devi was brought on record for continuation of the complaint. The said complaint was filed before the Forum vide  case no.14/6.2.2008 and disposed of on 15.5.2008 as per the statement made by counsel of the complainant. That Harbans Lal deceased died leaving behind his widow, his sons and daughters as his legal heirs and the legal heirs of Harbans Lal served a legal notice dated 28.2.2007 upon opposite party through their counsel, Sh.Ravi Kant Sharma for payment of the impugned claim amount, but they did not continue the complaint and  rather they  withdrew the said complaint. This Forum never directed the complainant to decide the dispute of succession. It is complainant who herself had withdrawn the complaint. Moreover, the impugned complaint was not to determine and decide the Will of the deceased (Sheela Devi or Harbans Lal). All other allegations made in the complaint have been denied.

4.                In order to prove the case, complainant Babita Garg appeared in witness box as her own witness and filed her duly sworn affidavit Ex.C1 in support of the allegations made in the complaint. The complainant also produced on record copies of documents Ex.C-2 to Ex.C-27 and closed the evidence.

5.                In rebuttal, opposite party tendered in evidence duly sworn affidavit of Sh.Baldev Singh, Senior Divisional Manager, United India Insurance Co. Ltd. - Ex.OP-1, affidavit of Dr. Swarn Singh Ex.OP-2. Opposite party also produced on record copies of documents Ex.OP-3 to Ex.OP-15 besides affidavit of Sh.U.S.Kohli, Kohli Surveyor, Dutt Road, Moga Ex.OP-16.

6.                We have heard the learned counsel for the parties and have carefully gone through the record placed on file.

7.                On the basis of evidence on record, learned counsel for complainant has vehemently contended that there is no dispute that Harbans Lal s/o Sham Lal (now deceased) got himself insured for Rs.5.00 lac with opposite party vide Janta Personal Accident Insurance Policy bearing no.201204/47-1204/97 by paying Rs.1,250/- as premium, copy of insurance policy accounts for Ex. C2. It is also not disputed that hip of life assured got fractured in accidental slip on 18.09.2006 and he remained admitted in DMC, Ludhiana, where he died on 16.1.2007. The life assured sustained fracture in the said accident. Ex.C21 contains the details of treatment obtained by the complainant.

 8.            Now, the question arises as to whether death of the life assured, Harbans Lal was accidental or not?

             The contention of opposite parties is that no post-mortem report and copy of the FIR has been produced for proving the said fact. But, however, there is sufficient evidence on record adduced by the complainant in support of her case that the life assured, Harbans Lal died on account of fracture received by him in the accidental slip on 18.9.2006. Simply because, the life assured was also suffering from Diabetic Mellitus Type II since 1996, it cannot be presumed that the death of the life assured took place on account of Diabetic Mellitus and the same was not the result of fracture received by him. Reliance in this regard has been placed on Rita Devi @ Rita Gupta, Petitioner Vs National Insurance Co. Ltd., Respondents, Revision Petition no.973 of 2007 decided by Hon'ble National Commission dated 24^th October, 2007, wherein it has been laid down that "From the aforesaid law developed in other countries and in this country, it is clear that injury or death caused by lightening, sun-stroke or earthquake has been held to be accidental. Further where a man in the course of work is exposed to excessive heat coming from a boiler and becomes exhausted and death occurs, it would be an accidental death. Similarly, a person working in an icy cold water and thereafter, sustains pneumonia which causes his death, such death is also considered to be an accidental death. Similarly, if the assured is seized by a fit and drowns or falls in front of a train and killed, death is due to external cause and is an accidental death. Death resulting from the threats by miscreants is also considered to be an accidental caused by external violence and visible means. In substance, death which does not occur in the usual course or natural course of events/causes which could not be reasonably anticipated is considered to be accidental one…………………… Hence, it is apparent that the death of the husband of the petitioner is covered under the Janta Accidental Insurance Policy issued by the Respondent no.1. It is to be stated that in the present case, cold wave was sudden and due to that a number of persons including the husband of the petitioner suffered massive heart attack as a result of which he died. This undisputed fact was reported in various newspapers. In the result, the revision petition is allowed and the insurance company is directed to pay the assured a sum of Rs.3.00 lakhs with interest @ 12% p.a. from 1^st July, 2004 (i.e. after six months from the date of accident) till its payment. Insurance Company shall also pay the cost of litigation which is quantified at Rs.10,000/-, to the petitioner.

9.                The other party has tried to confuse the matter by taking the plea that because no FIR or post-mortem examination was conducted on the body of the deceased-life assured, therefore, it cannot be presumed that the death of life assured occurred due to accidental slip. But however, the legal position on this point is quite contrary to the stand taken by opposite parties. Reliance on this point has been placed on National Insurance Co. Ltd., Appellant-OP Vs Kulbir Kaur and others, Respondents-Complainants, First Appeal no.839 of 2008 decided by Hon'ble State Commission, Punjab, Chandigarh dated 28.02.2013, wherein, it has been laid down that "It stands proved that the deceased died an accidental death as a result of electric shock when he tried to switch on the electric motor. Like the present case in Nidhi Sahi's case (supra) the claim submitted by the beneficiary of the deceased was challenged mainly on the ground that no FIR was lodged nor any post mortem examination was performed on the deceased body. In that case the complainant was able to prove the death of the deceased in the accident by producing other evidence. That evidence was taken as sufficient, even in the absence of FIR and the post mortem report, for proving the accidental death of the deceased. The ratio of that judgment fully applies to the facts of the present case. Therefore, the non-lodging of the FIR or the non-conduct of the post mortem examination on the dead body of the deceased alone cannot be a ground for ignoring the cogent and convincing evidence produced by the complainants for proving that the death of the deceased was accidental."

                   Further, in case Sewa Sehakari Samiti Ltd. & others Vs Smt.Charanjit Kaur decided by Hon'ble National Commission dated October 11, 2011, it has been laid down that "The decision of the District Forum was based on the certificate given by the Sarpanch which was supported by a series of affidavits filed on behalf of the complainants justifying the manner in which Angrez Singh had died which conclusively proved that it was an accidental death. We see no reason to differ with the concurrent finding on this and the technical objections such as not filing an FIR absence of post-mortem report and not filing the claim within thirty days will not make much of a difference to the case of the complainants. In view of the above we find no merit in the revision petition warranting any interference by this Commission in exercise of its supervisory jurisdiction as there is neither any illegality irregularity much less any jurisdictional error in the order passed by the State Commission. The revision petition is accordingly dismissed with no order as to cost."

10.              Opposite parties have been deferring the settlement of the claim on the plea that no copy of FIR or Post-Mortem report was annexed by the complainant for settling the claim of the life assured, Harbans Lal. But, however, in view of the law laid down by the Higher Courts cited above, it clearly shows that post-mortem report or FIR was not required for proving the death of life assured, Harbans Lal was accidental in nature. The complainant has adduced discharge summaries dated 19.9.2009 and dated 2.11.2006 of Harbans Lal (now deceased), copy whereof is Ex. C-21, which shows that Harbans Lal received treatment on account of fracture received by him in the alleged accidental slip occurred on 18.9.2006. The very fact that Harbans Lal died on 16.1.2007, goes to show that his death occurred due to fracture inflicted on him in the alleged accidental slip. It is, therefore, vehemently contended that the complainant has been able to prove his case and the complainant is entitled to receive an amount of Rs. 5 lacs and the complaint may be allowed accordingly.

11.              However, from the appreciation of the facts and circumstances of the case, it becomes quite evident that the complainant has miserably failed to prove that Harbans Lal died due to fracture sustained by him in the alleged accident. Further none of the documents confirm that the hospitalization and then subsequent death is due to any accident. Since the complainant has miserably failed to prove that Harbans Lal died due to fracture sustained by him in accidental slip, as such, there does not exist any deficiency in service on the part of the opposite parties. The complainant was asked by the opposite parties to furnish documents in order to prove the accidental death of insured Harbans Lal. The insurance company served reminders dated 24.4.2007, 14.5.2007 and 8.6.2007, copies whereof account for OP4, OP5 and OP6 to furnish the proof of accidental death of insured Harbans Lal. But however, no document concerning the cause of death has been adduced on record. If the life assured actually died and that too on account of fracture received by him in the alleged accidental slip it was all the more necessary to get the post-mortem conducted on the dead body of the life assured. Post-mortem is a genetic test to ascertain the cause of death. Even if no post-mortem was conducted, as has been so held in various rulings relied upon by the complainant, even then some doctor, who treated the deceased, could have been summoned to prove that death of the life assured took place due to fracture sustained in the alleged accidental slip. But however, for the reasons best known to the complainant, no said recourse was even adopted. The complainant was supposed to lead sufficient and cogent evidence to establish that the death of life assured was due to sudden, unforeseen and involuntary event caused by external, visible and violent means and due to bodily injuries. The complainant has miserably failed to submit any document or evidence, which could support that the death of the life assured was caused on account of fracture sustained in the said accidental slip.

                   In judgement Mrs.Madhumita Bose, Appelant(s) Vs The Manager, HDFC Ergo General Insurance Company Limited, Respondent(s), First Appeal no.64 of 2014 Hon'ble National Commission dated 2^nd February, 2015, it has been held that "Before the claim could be admitted by the insurance company, it was incumbent on the part of the complainant to provide proof to establish that the death was accidental. No doubt, as per the allegation, which has not been disputed, the insured person fell from the bus which obviously would constitute an accident but as rightly held by the State Commission, it could not be established that the cause of death of the insured was the injury caused by the accident.

                   In another case titled as United India Insurance Co. Ltd., Petitioner Vs P.M.Nagesh Nayak and others, Respondents- 2014(1) CPR 686, Hon'ble National Commission went on to hold that in LIC claim form respondent has declared cause of death as heart pain is clear indication that story regarding death of insured due to accidental head injury is concocted on an afterthought. Since respondent failed to prove that the deceased died due to accident injury, the complaint was dismissed and the Revision allowed."

                   Further reliance can be placed on SBI Life Insurance Co. Ltd., Petitioner Vs Kamaljeet Kaur and another- 2016 (1) CLT 285 (NC), in which, it has been laid down that wherein the point was whether the death caused by Acute M.I. can be treated as death due to accident?- Held - No. There is distinction between the accidental death and death due to accident. Death caused by "Acute M.I." may be called an accidental death, but it is definitely not a death due to accident. Insurance Company was held not liable."

12.              In the case in hand, the death of life assured Harbans Lal may be called an accidental death, but, however, his death cannot be held to be caused by accident.

13.              The instant complaint is also palpably hit by limitation. Initially Sheela Devi, predecessor in interest of Babita Garg complainant, filed a complaint for getting the insurance claim of Harbans Lal (now deceased) on 6.2.2008, which was adjourned sine die on 15.05.2008 on the statement of Sh.Ashok Kumar Goyal, Advocate, counsel for Sheela Devi on the ground that Sheela Devi had executed a Will in favour of Babita Garg complainant. Presumably this development took place as Smt. Sheela Devi had died on 12.02.2008 in view of copy of death certificate Ex.C-25. The complainant did not revive previous complaint, after settlement of the dispute in her favour on 13.01.2011 rather she went on awaiting until her name entered in the record of rights, copy of Jamabandi for the year 2013-14 accounts for Ex.C-5. As a matter of fact, the complainant could either get the sine die adjourned complaint revived within a further period of two years from the date of settlement of inheritance dispute in her favour from 13.01.2011 or she could file a fresh complaint uptil 13.01.2013, but instant complaint has been filed only on 20.11.2015, which is not within limitation. No application for condonation of delay has been filed by the complainant at the time of filing present complaint and no leave of the court has been sought for filing the complaint at such a belated stage. In our considered opinion, the complainant was competent to file complaint uptil 13.01.2013 and the instant complaint filed on 20.11.2015 is outrightly hit by limitation. On that score also, the instant complaint is not maintainable.

14.              From the aforesaid discussion, it transpires that the complainant has failed to prove her case through evidence on record. On the other hand, it becomes clear that the life assured did not die due to alleged fracture sustained by him in the accidental slip on 18.9.2006, rather he died on account of diabetic mellitus and due to loose stools and vomiting. There is no nexus between the fracture allegedly sustained on 18.9.2006 and death of the life assured which occurred on 16.1.2007.

15.              Consequently, the instant complaint fails and the same is ordered to be dismissed. Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.

 

 

  (Bhupinder Kaur)                  (Vinod Bala)         (S.S. Panesar)

             Member                     Member                 President

Announced in Open Forum.

Dated:09.03.2016.