Complaint No: 124 of 2021.

                                                                  Date of Institution: 11.05.2021.

                                                                             Date of order:22.11.2023.

Charanjit Kaur W/o Late Sarabjeet Singh, resident of Village Bhagian P.O. Sekhwan, at present House No. 254/7, Unique Avenue, Kahnuwan Road Batala District Gurdaspur. Pin Code – 143518.

                                                                                                                                                           …..........Complainant.                                                                                                                                                                                                                                                                                                                                                                                                    

                                                         VERSUS

1.       United India Insurance Company Ltd., SCO No. 72 Phase-9, SAS Nagar Mohali -160062, through its Manager. United India Insurance Company Ltd. Pin Code – 160062.

2.       United India Insurance Company Ltd., Registered & Head Office 24, White Road, Chennai - 600014, through its Managing Director / CEO. Pin Code – 600014.

3.       Prem Motors Ltd., IDC Industrial Development Area opposite Sector 14, Gurgaon (Haryana) - 122001, through its Proprietor / Partner. Pin Code - 12200.

                                                                                                                                                   ….Opposite parties.

                                       Complaint Under section 35 of the Consumer Protection Act.

Present: For the Complainant: Sh.Raman Kumar, Advocate.

              For the Opposite Parties No.1 & 2: Sh. Sandeep Ohri, Advocate.

              Opposite Party No.3: Exparte.

Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.

ORDER

Lalit Mohan Dogra, President.

          Charanjit Kaur, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act (here-in-after referred to as 'Act') against United India Insurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).

2.       Briefly stated, the case of the complainant is that the complainant is a house hold lady and having two minor male children. It is further pleaded that  husband of the complainant namely Sarabjit Singh was serving as Driver-cum-Cleaner with Prem Motors Pvt. Ltd. i.e. the OP No. 3. It is pleaded that on 16.02.2018, husband of the complainant was on his duty with the OP No. 3 at Prem Motor parking Village Nakhroka and all of sudden, husband of complainant slipped and fell down in the nearby Water Tank, and died due to drowning in the water, during course of his duty/employment with the OP No. 3. It is further pleaded that matter was reported to the police and DDR No. 21 dated 16.02.2018 was recorded U/s 174 Cr.P.C. at P.S. Kherki Daula and the  Post mortem on the dead body of the  deceased Sarabjit Singh was conducted on the same day i.e. 16.02.2018 by the concerned Medical Officer/Doctor. It is further pleaded that in the post mortem report No.JS/19/18 dated 16.02.2018 issued on 31.12.2018 in which cause of death has been clearly mentioned as "The cause of death in this case is Asphyxia Following Ante Mortem Drowning". It is further pleaded that Husband of the complainant namely Sarabjit Singh was having very good health and want teetotaler and deceased Sarabjit Singh was even not consuming liquor etc. It is further pleaded that husband of complainant was holding "Bhagat Puran Singh Sehat Bima Yojna vide file No. 1090, Smart Card No. 93035000089028697" with the OP’s No. 1 & 2. The deceases was insured for Rs.5,00,000/- (Rupees Five Lacs only). It is further pleaded that on the basis of above mentioned policy, the complainant lodged claim with the OP’s No. 1 & 2, but to the utter surprise of the complainant, the OP’s No. 1 & 2 repudiated the claim of the complainant vide letter dated 02.12.2020 with the false, frivolous, baseless and imaginary observations that the deceased took liquor at the time of accident as per PHSC letter No.SHA/BPSSBY/2019/2420-21 which fact is totally wrong, illegal, null & void, and is against the rules, instructions and principal justice. It is further pleaded that the deceased husband of complainant died due to drowning which is evident from the Post Mortem report. It is further pleaded that alleged letter of PHSC letter no. SHA/BPSSBY/2019/2420-21 is also illegal, null and void and has been procured by the OP’s No. 1 & 2 with malafide intention & ulterior motive for making false ground for repudiation of the claim of the complainant. It is further pleaded that the OP’s No. 1 & 2 by not making payment of the insured amount on bogus and baseless observations are trying to back out from their pious obligation of making payment of the insured amount to its policy holder and to his legal heirs in the event of death of the insured policy holder. It is further pleaded that this decision of the OP’s is liable to be set aside and the complainant is entitled to receive the full amount of insurance policy being legal heir. It is further pleaded that the act of the OP’s amounts to deficiency, negligence and unfair trade practice on the OP’s for not making payment of the double of insured amount to the complainant. It is further alleged that thereafter, the complainant made repeated requests to the OP’s No. 1 & 2 to make payment of the insured amount on account of death of her husband, but the OP’s always put the matter with one or the other excuse. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.

          On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to make the payment of the full insured amount i.e. of Rs.5,00,000/- (Rupees Five Lacs only) along with all other vested benefits to the complainant as husband of the complainant died in accident and to withdraw their notice/letter dated 02.12.2020. It is further prayed that compensation to the tune of Rs.50,000/- may also be awarded to the complainant besides the amount in question on account of mental agony, physical harassment and deficiency in service on the part of the opposite parties. Litigation expenses to the tune of Rs.5,000/- may also be awarded in favour of the complainant, in the interest of justice.

3.       Upon notice, the opposite parties No.1 and 2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has no cause of action to file the present complaint, that insurance is a contract between the two parties and both the parties are bound with the terms and conditions of the policy. It is further pleaded that there is no deficiency in services on the part of the answering opposite parties / insurance co. It is pleaded that the claim has been filed and the relevant documents were submitted and the insurance co. also got the documents but after going through the documents the claim has been repudiated vide letter dated 02.12.2020. It is further pleaded that the death took place due to drowning in water and the deceased was under the influence of liquor at the time of accident and this fact is very much clear from the PHC Letter No. SHA/BPSSBY/2019/2420-21 and as such the claim has been repudiated as the deceased was under the influence of liquor and as such, the death took place due to his own negligence and it also amounts to breach of terms and conditions of the policy and the claim has rightly been repudiated. It is further pleaded that the Police also took the statements of the witnesses which clearly shows that the deceased was under the influence of liquor when he fell in the water pit. It is further pleaded that there is no deficiency in services on the part of the insurance co. and the claim has rightly been repudiated. It is further pleaded that even otherwise, if this Ld. Commission comes to the conclusion that there is any liability of the insurance co. then in that case the liability of the insurance co. is as per policy and in no case not more than the Insured Declared Value (IDV) of the insured.

          On merits, the opposite parties No.1 and 2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.

4.         Opposite party No.3 did not appear despite the service of notice and was proceeded against exparte vide order date 27.08.2021.

5.       Learned counsel for the complainant has tendered into evidence affidavit of Charanjit Kaur, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-11.

6.       Learned counsel for the opposite parties No.1 and 2 has tendered into evidence affidavit of Sh. Jai Kishan, (Divisional Manager, United India Ins. Co. Ltd, Pathankot) as Ex.OPW-1,2/A alongwith other documents as Ex.OP-1,2/1 to Ex.OP-1,2/8.

7.       Rejoinder not filed by the complainant.

8.       Written arguments filed by the complainant but not filed by the opposite parties No.1 and 2.                                          

9.       Counsel for the complainant has argued that the husband of the complainant namely Sarabjit Singh was employed with the opposite party No.3 and on 16.02.2018 he slipped and fell in the nearby water tank and died due to drowning in the water. It is further argued that proceedings under section 174 Cr.P.C. were carried out by the police and post mortem on the dead body of the deceased was conducted by the concerned medical officer. It is further argued that complainant was holding Bhagat Puran Singh Sehat Bima Yojna and accordingly was insured for Rs.5,00,000/-. It is further argued that on claim having been intimated to the opposite parties No.1 and 2, same was repudiated on account of false and frivolous reasons and accordingly complainant is entitled to receive the sum assured i.e. Rs.5,00,000/- from the opposite parties No.1 and 2.

10.     Counsel for the opposite parties No.1 and 2 has argued that as the death of the  deceased Sarabjit Singh took place due to drowning in the water and the deceased was under influence of liquor at the time of accident and since the death took place due to negligence of deceased and there is violation of terms and conditions of the policy. Accordingly, the claim was repudiated and as such there is no deficiency in service in service on the part of the opposite parties No.1 and 2.

11.     We have heard the Ld. counsels for the complainant and opposite parties No.1 and 2 and gone through the record.

12.     To prove her case complainant has placed on record her duly sworn affidavit Ex.CW-1/A, copy of Bhagat Puran Singh Sehat Bima Yojna Ex.C1, copy of death report Ex.C2, copy of letter for post mortem report Ex.C3, copy of post mortem report Ex.C4, copy of repudiation letter Ex.C5, copies of legal notice Ex.C6 and Ex.C7, postal receipts Ex.C8 and Ex.C9, copy of Aadhaar Card Ex.C10, copy of letter dated 15.12.2020 Ex.C11. Opposite parties No.1 and 2 have placed on record affidavit of Jai Kishan D.M. Ex.OPW-1,2/A, copy of enrollment unit and definition Ex.OP-1,2/1, copy of repudiation letter Ex.OP-1,2/2, copy of death report Ex.OP-1,2/3, copy of letter for post mortem report Ex.OP-1,2/4, copy of statement of Sh.Dalbir Singh Ex.OP-1,2/5, copy of statement of Sh.Gurmit Singh Ex.OP-1,2/6, copy of statement of Sh.Baljinder Singh Ex.OP-1,2/7 and copy of post mortem report Ex.OP-1,2/8.

13.     It is admitted fact that the husband of the complainant was employed with the opposite party No.3 at Gurgaon. It is further admitted fact that on 16.02.2018 the husband of the complainant died due to drowning in the water during the course of employment with the opposite party No.3. It is further admitted fact that DDR No.21 dated 16.02.2018 was recorded and proceeding under section 174 Cr.P.C. were carried out at P.S. Kherki Daula. It is further admitted fact the post mortem on the dead body of late Sarabjit Singh carried out by the concerned medical officer at Civil Hospital Gurgaon. It is further admitted fact that deceased was insured upto Rs.5,00,000/- under Bhagat Puran Singh Sehat Bima Yojna. It is further admitted fact that claim lodged by the complainant has been repudiated by the opposite parties No.1 and 2 vide letter dated 02.12.2020. The only issued before this Commission for adjudication is whether at the time of the  death, deceased  was under influence of liquor at the time of accident and repudiation is justified or not. Opposite parties No.1 and 2 have merely relied upon PHC letter as per which the deceased was under the influence of liquor at the time of accident. The opposite parties No.1 and 2 have further relied upon the statements of Sh.Dalbir Singh, Gurmit Singh and Baljinder Singh all of whom confirmed that deceased was under the influence of liquor but the copies of statements Ex.OP-1,2/5 to Ex.OP-1,2/7 shows that Dalbir Singh witness is resident of Gurdaspur and Gurmit Singh and Baljinder are residents of Amritsar and all of these were not present at the time of occurrence rather being relatives were intimated later on. Interestingly, police authorities have not recoded any statement of any employee or owner of Prem Motors Ltd. i.e. opposite party No.3 employer of the deceased or any eye witness to prove this fact this fact that deceased was under influence of liquir at the time of accident. To confirm the accidental death due to drowning of the deceased we have gone through the port mortem report Ex.OP-1,2/8 as per which in the remarks column of medical officer the cause of death in this case is "Asphyxia Following Ante Mortem Drowning" and we are of the view that if reason of the  death was accident due to over drinking and thereafter fall in water in that case it was necessary for the medical authorities and police authorities to have sent blood samples and visra to forensic lab. to confirm whether the deceased was under the influence of liquor or not. Since no such efforts has been made by the medical officer of Civil Hospital Gurgaon and the police authorities which shows that the death of the deceased due to drowning. We are of view that how opposite parties No.1 and 2 arrived at this conclusion that deceased was under influence of liquor without any scientific report of any forensic lab. or confirmation from the doctor who conducted the postmortem and how the opposite parties No.1 and 2 have repudiated the claim by relying upon the statements of witnesses who were not present at the spot. As such we are of the view that claim has been repudiated by the opposite parties No.1 and 2 without any justified  reasons and scientific evidence and as such repudiation of claim amounts to deficiency in service. Perusal of tendered document Ex.OP-1,2/1 shows that in case of accidental death the legal heirs of the insured are entitle to receive Rs.5,00,000/- as compensation.

14.     Accordingly, present complaint is partly allowed and opposite parties No.1 and 2 are directed to pay Rs.5,00,000/- to the complainant alongwith interest @ 9% P.A. from the date of this order till realization within 30 days from the date of receipt of copy of this order.   

15.     The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases.

16.     Copy of the order be communicated to the parties free of charges. File be consigned.                                                                                                                                                               

            (Lalit Mohan Dogra)

                                                                                      President.  

Announced:                                                   (B.S.Matharu)

Nov. 22, 2023                                                       Member.

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