State Consumer Disputes Redressal Commission
Anil Shukla vs H.D.F.C. Agro General Insurance ... on 12 April, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2015/641
Instituted on : 26.12.2015
Anil Shukla, S/o Shri S.P. Shukla,
R/o : House No. - 04, M.I.G.I/64A/4,
Near Shivaji Park, Nehru Nagar (West),
Bhilai, District Durg (C.G.) ... Appellant
Vs.
1. H.D.F.C. Ergo General Insurance Company Limited,
Local Office : Through - H.D.F.C. Bank Limited,
122, Chauhan Dream House Commercial Complex,
Main Road, Smriti Nagar,
Bhilai, District Durg (C.G.)
2. H.D.F.C. Ergo General Insurance Company Limited,
Registered Office - Ramon House, H.T. Parekh Marg,
169, Backbay Reclamation,
Mumbai - 400 020
3. H.D.F.C. Bank Limited,
Local Office : 122, Chauhan Dream House Commercial Complex,
Main Road, Smriti Nagar,
Bhilai, District Durg (C.G.) .... Respondents
Appeal No.FA/2015/681
Instituted on : 15.01.2016
1. HDFC Ergo General Insurance Company Limited,
Through : HDFC Bank Ltd.
122, Chauhan Dream House, Commercial Complex,
Main Road, Smriti Nagar,
Bhilai, District Durg (C.G.)
2. HDFC Ergo General Insurance Company Limited,
Registered Office ; Ramon House, H.T. Parekh Marg,
169, Backbay Reclamation,
Mumbai (M.H.) 400 020
At present : 2nd Floor, D.M. Tower,
New Palasiya, Indore (M.P.). ... Appellants
Vs.
// 2 //
1 Anil Shukla, S/o Shri S.P. Shukla,
R/o : House No.4, MIG-1/64-A/4, Near Shivaji Park,
Nehru Nagar (West),
Bhilai, District Durg (C.G.)
2. H.D.F.C. Bank Ltd.,
Local Office : 122, Chauhan Dream House,
Commercial Complex, Main Road, Smriti Nagar,
Bhilai, District Durg (C.G.). .... Respondents
Appeal No.FA/2015/685
Instituted on : 13.01.2016
H.D.F.C. Bank Limited,
Office - 122, Chauhan Dream House,
Commercial Complex, Main Road, Smriti Nagar,
Bhilai, District Durg (C.G.) .... Appellant
Vs.
1. Anil Shukla, S/o Shri S.P. Shukla,
House No.04, M.I.G.1/64, A/4,
Near Shivaji Park, Nehru Nagar (West),
Bhilai, District Durg (C.G.)
2. H.D.F.C. Ergo General Insurance Limited,
Office : Devendra Nagar, Near Chhoti Railway Crossing,
Raipur (C.G.).
3. H.D.F.C. Ergo General Insurance Company Limited,
Office - Ramon House, H.T. Parekh Marg,
169, Backbay Reclamation,
Mumbai (Maharashtra) .... Respondents
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER HON'BLE SHRI NARENDRA GUPTA, MEMBER COUNSEL FOR THE PARTIES IN ALL THE APPEALS:-
Shri Anurag Thaker, for the complainant - Anil Shukla. Shri N.K. Thakur, for the O.P.No.1 H.D.F.C. Ergo General Insurance Company Limited, Local Office, Bhilai, Tehsil & District Durg (C.G.) // 3 // and O.P.No.2 H.D.F.C. Ergo General Insurance Company Limited, Registered Office - Mumbai (Maharashtra) 400 020. Shri S. Mandal, for the O.P.No.3 H.D.F.C. Bank Limited, Local Office, Bhilai, Tehsil and District Durg (C.G.).
O RDER Dated : 12/04/2016 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No.FA/2015/641, Appeal No.FA/2015/681 as well as Appeal No. FA/2015/685, which have been preferred respectively by the complainant - Anil Shukla, O.P.No.1 H.D.F.C. Ergo General Insurance Company Limited, Local Office - Through H.D.F.C. Bank Limited & O.P.No.2 H.D.F.C. Ergo General Insurance Company Limited, Registered Office, Mumbai (Maharashtra) and O.P.No.3 H.D.F.C. Bank Limited, Bhilai, District Durg (C.G) of Complaint Case No.CC/2014/355 against the order dated 28.10.2015, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum"). By the impugned order, the learned District Forum, has allowed the complaint of the complainant and directed the O.P.No.1, 2 and 3 to jointly and severally pay compensation within a period of one month from the date of order, which is as under :-
(a) The O.P.No.1 & O.P.No.2 have been directed to jointly and severally pay the amount, which was due on the date of death of the complainant's wife i.e. 22.07.2013 in her loan account.
// 4 //
(b) If the O.P.No.1 and O.P. No.2 will not pay the above amount within stipulated time to the complainant, then the O.P.No.1 & O.P.No.2 will jointly and severally liable to pay interest @ 09% p.a. from the date of order till realisation.
(c) The O.P.No.1, O.P.No.2 and O.P. No.3 will jointly and severally pay a sum of Rs.50,000/- (Rs. Fifty Thousand) towards compensation for mental agony to the complainant.
(d) The O.P.No.1, O.P.No.2 and O.P.No.3 will jointly and severally pay a sum of Rs.10,000/- (Rs. Ten Thousand) to the complainant.
2. The complainant has filed appeal No.FA/2015/641 for modification in the impugned order and the O.P.No.1 & No.2 have filed appeal No.FA/2015/681 and O.P.No.3 has filed FA/2015/685 for setting aside the impugned order of the District Forum. The original of this order be retained in the file of Appeal No.FA/2015/641 and it's copy be placed in the file of Appeal No.FA/2015/681 and FA/2015/685.
3. Briefly stated the facts of the complaint of the complainant are that Late Smt. Chaina Shukla, who was wife of the complainant obtained housing loan amounting to Rs.13,00,000/- from the O.P.No.3 HDFC Bank Limited for purchasing residential plots in March, 2012. For purchasing the plot she mortgaged her own house with the O.P.No.3 and loan account No.80323419 was opened by the O.P.No.3.
// 5 // The installment of Rs.21,569/- per month was fixed. The installments were being paid by Late Smt. Chaina Shukla. She obtained Home Suraksha Plus Insurance Policy from the O.P.No.1 and O.P.No.2. Late Smt. Chaina Shukla received insurance policy bearing No.291820023440500000 from the O.P. No.1 & O.P.No.2. The premium amount of Rs.1,16,450/- was paid by loanee. The installment of Rs.21,569/- was fixed and installments were being regularly paid by Smt. Chaina Shukla from April, 2012 to July, 2013 to the O.P.No.3. Loan agreement was executed between the loanee Smt. Chaina Shukla and the O.P.No.3 HDFC Bank Limited. In the night of 21.07.2013 the wife of the complainant Smt. Chaina Shukla died all of a sudden. The complainant intimated the matter to the Police Station, Supela, Bhilai (C.G.) where Merg Intimation No.63/2013 was recorded and inquest on the body of the deceased was prepared and the dead body of the deceased was sent to the District Hospital, Durg (C.G.) for post mortem examination, where post mortem was conducted on the dead body of deceased and the doctor gave his report in which he mentioned that no definite opinion can be given regarding cause of death. Viscera was preserved and was sent to Government Forensic Science Laboratory, Raipur for chemical examination. The Viscera Report was also received by Police Station, Supela, Bhilai (C.G.). In Viscera Report, it is mentioned that no chemical poisoning substance was found. The intimation was also given to the OPs regarding death of Late Smt. // 6 // Chaina Shukla. The complainant submitted death claim before O.P.No.1 & O.P.No.2, but the O.P.No.1 & O.P.No.2 did not settle his claim and repudiated the claim with a malafide intention, therefore, the complainant filed instant complaint before the District Forum for getting reliefs as prayed by him in the complaint.
4. The O.P.No.1 H.D.F.C. Ergo General Insurance Company Ltd, Local Office Bhilai, District Durg (C.G) & O.P.No.2 H.D.F.C. Ergo General Insurance Company Ltd., Registered Office, Mumbai filed their joint written statement and averred that the insurance policy was issued subject to terms and conditions, exclusions and have further contended that the intimation from the complainant for death claim of insured Smt. Chaina Shukla received and the claim was repudiated on the ground that the death of deceased was not accidental and the doctor could not give definite opinion regarding the cause of her death. The cover of major medical illness and procedure under the policy is an exclusive cover limited to the specifically described illness. The major medical illness. is mentioned in the policy schedule, therefore, the cause of death of Late Smt. Chaina Shukla was not ascertained and her death was not caused due to medical illness. The cause of death is not known, and so it does not fall within the purview of policy section major medical illness and procedure. Hence, the Insurance Company // 7 // has rightly repudiated the claim and does not commit any deficiency in service by doing so. The complaint is liable to be dismissed.
5. None appeared for the O.P.No.3 HDFC Bank Limited before the District Forum in spite of service of notice by registered post, therefore, O.P.No.3 was proceeded ex-parte.
6. The complainant filed documents. Document A-1 is terms and conditions provided by the HDFC Bank Limited, A-2 is Policy Brochure, A-3 is letter dated 03.04.2012 sent by HDFC Bank to Smt. Chaina Shukla, Repayment Schedule, A-4 is Police Inspection Report, A-5 is Merg Intimation, A-6 is Inquest, A-7 is application for post mortem, A-8 is post mortem examination report, A-9 is letter dated 11.11.2013 sent by Government Forensic Science Laboratory, Raipur (C.G.) to The Superintendent of Policy, District Durg (C.G.), A-10 is letter dated 11.11.2013 sent by Government Forensic Science Laboratory, Raipur (C.G.) to The Superintendent of Police, Raipur (C.G.), A-11 is Histopathology Report of Smt. Chaina Shukla, issued by Pt. J.N.M. Medical College, Raipur (C.G.), A-12 is Home Suraksha Plus
- Claim Form, A-13 is letter dated 19.11.2013 sent by HDFC Ergo General Insurance Company Limited, A-14 is Notice Demanding Possession dated 25.08.2014 sent by HDFC Bank Limited to Mrs. Chaina Shukla.
// 8 //
7. The O.P.No.1 O.P.No.2 HDFC Ergo General Insurance Company Limited, have filed documents. Annexure D-1 is letter dated 29.09.2014 sent by the Insurance Ombudsman to HDFC Ergo General Insurance Company Limited, Mumbai, Annexure D-2 is Order No.IO/BHP/A/GI/55/2014-215 dated 29.09.2014 passed by The Insurance Ombudsman, Bhopal in Case No.BHP-G-018-1314-0665 - Mr. Anil Shukla Vs. HDFC Ergo General Insurance Company Limited, Annexure D-3 is Self-Contained Note/Objection filed for and behalf of HDFC Ergo General Insurance Co. Ltd. before Insurance Ombudsman (M.P. & C.G.) Bhopal in Complaint No.BHP-G-018-1314-0665 - Mr. Anil Shukla Vs. HDFC Ergo General Insurance Company Limited, Annexure D-4 is letter dated 07.10.2013 sent by HDFC ERGO General Insurance Company Limited to Shri Anil Shukla,, Annexure D-5 is letter dated 19.11.2013 sent by HDFC ERGO General Insurance Company Limited to Shri Anil Shukla, Annexure D-6 is letter dated 09.10.2013 sent by HDFC ERGO General Insurance Company Limited to Shri Anil Shukla, Annexure D-7 is insurance policy issued by HDFC ERGO General Insurance Company Limited in favour of Smt. Chaina Shukla along with terms and conditions of the policy.
8. Learned District Forum after having considered the material placed before it by the parties, has allowed the complaint and directed // 9 // the O.P.No.1, O.P.No.2 and O.P.No.3 to pay compensation to the complainant, as mentioned in para 1 of this order.
9. Shri N.K. Thakur, learned counsel appearing for HDFC Ergo General Insurance Company Limited (Appellants of Appeal No.FA/2015/681 and O.P.No.1 & O.P.No.2 in original complaint) has argued that the impugned order passed by the District Forum is erroneous and the District Forum has not considered legal aspects and terms and conditions of the insurance policy. The complainant has not been able to prove that the death of the deceased Smt. Chaina Shukla was accidental and he has also not been able to prove that her death was occurred due to major critical illness. The Doctor, who conducted post mortem was unable to give definite opinion regarding cause of death of the deceased, therefore, the cause of death has not been ascertained and it does not come within purview of the insurance policy, hence the complainant is not entitled to get any amount under the insurance policy and the O.P.No.1 and O.P.no.2 have rightly repudiated the claim of the complainant. The impugned order passed by the District Forum is not sustainable in eye of law. The appeal of the O.P.No.1 & O.P.No.2, be allowed and the impugned order be set aside.
10. Shri S. Mandal, learned counsel appearing for the O.P.No.3 HDFC Bank Limited (Appellant of Appeal No.FA/2015/685 and O.P.No.3 of the original complaint) has argued that the impugned order // 10 // passed by the District Forum, is erroneous. He supported the arguments advanced by Shri N.K. Thakur, learned counsel appearing for the O.P.No.1 and O.P.No.2. The impugned order passed by the District Forum, is not sustainable in eye of law. The appeal of the O.P.No.3 be allowed and the impugned order be set aside.
11. Shri Anurag Thakar, learned counsel appearing for Anil Shukla (Appellant of Appeal No.FA/2015/641 and complainant of the original complaint) has argued that Late Smt. Chaina Shukla, who was wife of the complainant had taken loan amounting to Rs.13,00,000/- from O.P.No.3 HDFC Bank Limited and she was depositing the installments regularly. All of sudden she died in the night of 21.07.2013. On being request made by the complainant, the post mortem on the dead body of Late Smt. Chaina Shukla was conducted and viscera was also preserved, but the Doctor, could not give definite opinion regarding death of the deceased. Late Smt. Chaina Shukla died all of a sudden and her death comes within purview of accidental death or under major medical illness, therefore, the O.P.No.1 and O.P.No.2 have wrongly repudiated the claim of the complainant on the ground that the cause of death of the deceased has not been ascertained. The finding of the O.P.No.1 & O.P.No.2 is erroneous. He further argued that the learned District Forum, has partly allowed the complaint and directed the O.P. No..1 & O.P.No.2 to jointly and severally pay the // 11 // amount which was due on the date of death of the complainant's wife i.e. 22.07.2013 in her loan account and also directed the O.P.No.1, O.P. No.2 and O.P.No.3 to jointly and severally pay a sum of Rs.50,000/- towards compensation for mental and Rs.10,000/- towards cost of litigation to the complainant. He further argued that the complainant is also entitled to recover the amount which was paid by the complainant after death of Late Smt. Chaina Shukla i.e. 22.07.2013. The complainant is entitled to refund back the said amount, but the District Forum has wrongly disallowed the above claim of the complainant, therefore, the appeal of the complainant be allowed and the appeals filed by the OPs be dismissed. He placed reliance on Oriental Insurance Company Limited Vs. Sukhdev Kaur, LAWS (NCD)-2008-5-30 , CPJ-2008-4-256 NCDRC; Oriental Treasures Pvt. Ltd. Vs. United India Insurance Company Limited, Chennai, LAWS (NCD)-2007-337/NCDRC-2007- 030; Godavari Grameena Bank Vs. Teja Poultry Farm, LAWS (NCD)- 2005-2-36, CPC-2005-2-164 NCDRC; B.V. Nagaraju Vs. Oriental Insurance Co. Ltd. LAWS (SC)-1996-5-95 ACC-1997-1-123 Supreme Court of India; United India Insurance Co. Ltd. Vs. Pushpalaya Printers, LAWS (SC)-2004-2-136/ROL-2004-0-88 and M/s Indore Plastic Pvt. Ltd. through R.C. Khosla, M.D. Vs. United India Insurance Co. Ltd. and Another, 2006 (I) C.L.C.C. 218, decided by Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal on 23.03.2006.
// 12 //
12. We have heard learned counsel for the parties and have also perused the record of the District Forum and the impugned order.
13. It is not disputed that Smt. Chaina Shukla, who was wife of the complainant had taken loan amounting to Rs.13,00,000/- from the O.P.No.3 HDFC Bank Limited and she had taken Home Suraksha Plus Policy from the O.P.No.1 & O.P.No.2 and premium of Rs.1,16,450/- was paid through O.P.No.3. It is also not disputed that Smt. Chaina Shukla died on 21.07.2013 and post mortem was conducted and viscera was preserved and the same was sent for examination to Government Forensic Science Laboratory, Raipur (C.G.) and viscera report was received by the Police Station, Supela, Bhilai, District Durg (C.G.).
14. The O.P.No.1 and O.P.No.2 have filed terms and conditions of the Sarv Suraksha Policy. In Section 2 - Personal Accident of the insurance policy, it is mentioned thus :-
"Section : Personal Accident :
1. Insured Event 1.1 In the event of any Accidental Bodily Injury sustained by the insured during the Policy Period, the Company will make payment under such Coverage Parts as are specified in the Schedule as being operative.
1.2......
Coverage Parts.
2.1. Coverage Part A : Death // 13 // 2.1.1 The Company will pay the Sum Insured in the event of Accidental Bodily injury causing the Insured's death within 12 months of the Accidental Bodily Injury being sustained, where after this Policy shall expire."
15. Now we shall examine whether the death of Late Smt. Chaina Shukla, was accidental in nature and was covered under the insurance policy ?
16. As per Advanced Lax Lexicon, P. Ramanatha Aiyar, 3rd Edition 2005, "the accident is an undersigned; sudden or unexpected event; mishap; misfortune; disaster. Strictly an occurrence can only be said to be accidental when it is due neither to design nor to negligence. The word 'accident' generally means some unexpected event happening without design even though, there may be negligence on the part of the workmen. It is used in the popular and ordinary sense and means a mishap or an untoward event not expected or designed."
17. Late Smt. Chaina Shukla, obtained Home Surkash Plus Policy from the O.P.No.1 & O.P.No.2. In Home Suraksha Plus - Claim Form (document A-12) under the head "Major Medical Illness", the complainant tick marked the box of Myocardial Infarction.
18. According to New Concise Medical Dictionary Myocardial Infarction means "it develops when there is no blood supply to the segment of heart muscle due to occlusion of one of branches of coronary artery".
// 14 // According to Midline Medical Dictionary, "Myocardial is pertaining to muscular tissues of the heart."
19. According to the Claim Form (document A-12), Late Smt. Chaina Shukla obtained Home Surakash Plus Policy. The complainant submitted claim form, which is duly signed by the complainant. From perusal of the claim form, it is apparent that the complainant has tick marked against Major Medical Illness, below the section against which claim is being made and the name of the insured Chaina Shukla with date of death 22.07.2013. The complainant tick marked under the Major Medical Illness and also tick marked against Myocardial Infarction in the box and other columns under the head personal accident are left blank by the complainant, which shows that the complainant has submitted his claim only under the head Major Medical Illness for Myocardial Infarction and the complainant did not submit his claim on the ground of any personal accident, but from very beginning he has made complaint before O.P.No.1 and O.P.No.2 on ground of Major Medical Illness.
20. In United India Insurance Co. Ltd. Vs. Canara Bank & Anr. I (2016) CPJ 699 (NC), Hon'ble National Commission has observed thus :-
"14. The Fora below have ignored the fact that onus of proving that the insured died as a result of accidental fall was on the respondent complainant which respondent has failed to discharge. Therefore, the impugned order cannot be sustained.
// 15 // We accordingly allow the revision petition, set aside the impugned order and dismissed the complaint."
21. In Oriental Insurance Co. Ltd. Vs. Tara, II (2015) CPJ 661 (NC), Hon'ble National Commission has observed that "Complainant was under obligation to prove that cause of death of insured was the injuries sustained in unfortunate accident."
22. In the post mortem report, the doctor who conducted post mortem examination did not mention any external injuries. It appears that no external injuries were found on the dead body of the deceased and the doctor could not give definite opinion regarding cause of death of the deceased. In the post mortem report, it is mentioned that no definite opinion can be given regarding cause of death of the deceased. Both the viscera was sent for chemical examination to Government Forensic Science Laboratory, Raipur (C.G.) from where the viscera report was obtained by the concerned Police Station. In viscera report (document A-10) it is mentioned that viscera (lungs, liver, splin, kidney and stomach) marked as Exhibit A and B and Chemical Examiner gave his finding that Exhibit A, B and C does not contain any poisoning substance.
23. The Histopathology Report (document A-11) issued by Pt. J.N.M. Medical College, Raipur (C.G.) Department of Pathology, has // 16 // been filed by the complainant, in which Microscopic Finding was given and it is mentioned thus :-
"Microscopic finding : Section from Aorta - no specific pathology.
Right ventricular - no specific pathology.
Left vernacular - no specific pathology.
Both coronaries - no specific pathology."
24. The complainant could not produce any document to ascertain the cause of death except the Postmortem Report and Viscera Report. In the Post mortem report, it has been clearly mentioned that no definite opinion can be given regarding cause of death. The Chemical Examiner also did not give exact finding regarding cause of death and Viscera Report does not show any chemicals, poison in the preserved organs. Thus, it is established that the cause of death has not been ascertained by the complainant. Though, the deceased died all of a sudden and her death was unfortunate, but merely she died all of a sudden, it cannot be held that her death is accidental in nature.
25. In letter dated 19.11.2013 (Document A-13) sent by the HDFC Ergo General Insurance Company Limited to the complainant, it is mentioned thus :-
"We refer to the above claim lodged by you and all the documents received at our end.
// 17 // It has been observed that Chaina Shukla was found dead in her room and the post mortem carried on her body revealed no specific cause of Death.
Kindly note that Major Medical Illness & Procedures section of this policy covers listed Critical Illness only. It is with deepest regrets we inform you that this presentation does not fall within the policy purview.
Please refer to diseases covered under Section 3 : Major Medical Illness & Procedures section of policy -
The critical illness coverage.
1. Cancer
2. Kidney failure,
3. Multiple Sclerosis
4. Major Organ Transplant,
5. Heart Valve Replacement,
6. Coronary Artery Bypass Graft
7. Stroke.
8. Paralysis
9. Myocardial Infarction."
26. The complainant has not been able to prove that the death of the deceased Smt. Chaina Shukla was caused due to Myocardial Infarction or was an accidental death, therefore, the death is not covered under the insurance policy the and Insurance Company has rightly repudiated the claim of the complainant. The impugned order dated 28.10.2015, passed by the District Forum, is erroneous and is not sustainable in eye of law and is liable to be set aside.
27. Hence, the appeal No. FA/2015/641 filed by the complainant Anil Shukla, is liable to be and is hereby dismissed. The appeal No.FA/2015/681 filed by O.P.No.1 H.D.F.C. Ergo General Insurance // 18 // Company Limited, Local Office, Bhilai, District Durg and O.P.No.2 H.D.F.C. Ergo General Insurance Company Limited, Registered Office, Mumbai (Maharastra) and Appeal No.FA/2015/685 filed by O.P.No.3 H.D.F.C. Bank Limited, Bhilai, District Durg (C.G.), are allowed and the impugned order dated 28.10.2015, passed by the District Forum is set aside. Consequently, the complaint filed by the complainant before the District Forum shall stand dismissed. No order as to the costs of these appeals.
(Justice R.S.Sharma) (Ms. Heena Thakkar) (D.K.Poddar) (Narendra Gupta)
President Member Member Member
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