State Consumer Disputes Redressal Commission
Maya Devi Gupta vs Tata Aig General Insurance Co. Ltd. on 21 April, 2014
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 21.04.2014 Complaint Case No.163/2011 Maya Devi Gupta W/o Sh. Ram Dass Gupta R/o I-37, B,4/2406, Street No. 12 Bihari Colony, Shahdra Delhi Complainant VERSUS TATA AIG General Insurance Co. Ltd. Berjaya House, 8th Floor Community Centre, New Friends Colony New Delhi ..Opposite Party CORAM S.A.Siddiqui, Member (Judicial) S.C.Jain, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
S.C.Jain, Member Judgment
1) This complaint has been filed by the complainant under Section 17 of the Consumer Protection Act 1986. Facts of the case are that an Accident Guard Policy No. 0200005250 was obtained by Sh. Mahesh Chand Gupta Son of the complainant from the OP Insurance Company and a premium of Rs. 14,555/- was paid. The policy was effective from 17.09.2002 to 16.09.2003. OP insurance company issued the receipt No. 01-00-00011108 dt. 17.09.2002 for premium paid. The insurance company issued the policy and the schedule of insurance in favour of Sh. Mahesh Chand Gupta and under the policy documents the beneficiary of the policy was Mrs. Maya Devi Gupta i.e. Mother of the insured.
2) On 19.05.2003 at about 11:30 pm unfortunately the complainants son Sh. Mahesh Chand Gupta who had obtained the policy from the OP insurance company was attacked by firearm by some unknown persons and subsequently the son of the complainant died at AIIMS Hospital, New Delhi. An FIR No. 148/2003 was lodged on 20.05.2003 at Police Station Frash Bazar, Delhi. The complainant who was the nominee and beneficiary under the policy lodged a claim of Rs. One Crore with the OP Company and after registration of FIR the police investigated the matter and arrested Sh. Yogender, Bablu, Pramod Kapil, Amarjeet and Mahavir Gupta who was the brother of the deceased Sh. Mahesh Chand Gupta. The police after completing the investigation submitted the charge sheet before the concerned trial court and in the charge sheet it was alleged that the complainants son namely Sh. Mahavir Gupta the in convince of other accused persons committed the murder in order to get Rs. One Crore insured under the policy.
3) On 11.09.2003 the complainant in lieu of her claim of insurance amount received a letter from the insurance company whereby she was informed that in terms of the provision of accident guard policy, the complainants son policy is treated as null and vide and that her claim is inadmissible as it has been revealed from the police charge sheet that the insurance has been obtained with fraudulent intention and misrepresentation of facts.
4) The complainant further stated in her complaint that the insurance company had issued the policy after due investigation and enquiry and had accepted the premium as well as had also issued the policy and when she lodged the claim only after that they had informed vide their letter dt. 11.09.2003 that their claim is inadmissible in terms of uniform provision No. 7 of Accident Guard Policy, and the entire policy is being treated as null and vide as the same has been obtained with fraudulent intention and misrepresentation of facts, whereas the insurance company vide its letter dt. 11.09.2003 in Para 3 itself written to Continental Suraksha Insurance Service Pvt. Ltd., who were the agents of the insurance company you would also be aware of the police investigation, which followed above claim, which lead to the conclusion that the premium pertaining to the policy was paid by the deceased brother in cash to you and you paid, the sum through cheque to the company and further wrote in their next Para that based on the above the policy becomes void-ab-initio and return the amount of the premium of Rs. 14,555/- vide their cheque No. 604736 to the agent and requested them in the letter to make further payment of this amount to the concerned person and ask the concerned person to whom the amount is returned for sending an acknowledgement of receipt of the sum of Rs. 14,555/-.
5) Complainant further states that the insurance company who had accepted the insurance premium after due investigation and enquiry deliberately and malafide refused the claim on the pretext of allegations on the murder of her son Sh. Mahesh Chand Gupta, further stated that the insurance company is working under a statutory authority to launch and accept the insurance premium and issue the insurance policy and is under obligation to pay claim under the insurance. But the insurance company deliberately refused the payment of the claim. The complainant further stated in her complaint that they had also filed a writ petition against the insurance company before the Honble High Court of Delhi but the same was withdrawn on the holding and direction by the Honble High Court to make proper claim before the insurance regulatory and development authority of India and it shall be open to the applicant to take appropriate legal action if aggrieved by the order of the aforesaid authority.
6) The complainant after above order of the Honble High Court of Delhi requested vide its letter dt. 23.04.2009 to the insurance company to look into their claim again and requested for making the payment under the claim, but, OP neither paid any amount nor replied her letter and thereafter vide their letter dt. 06.09.2010 the complainant approached IRDA requesting therein for directing the OPs to honour the insurance claim filed in respect of accident guard policy No. 020000525 amounting to Rs. One Crore with interest @ 12% p.a. IRDA forwarded the complaint made to them by the complainant to OP but OP without verifying and considering the facts a fresh as per directions of IRDA, simply vide their letter dt. 14.10.2010 merely retreated its earlier decision of repudiation of the claim.
7) On receipt of this letter dt. 14.10.2010 from the OP the complainant again filed a petition dt. 19.03.2011 before the IRDA informing therein the communication of the OP sent to him vide its letter dt. 14.10.2010 and further stated in its representation to IRDA that he has not received any order or directions from them (i.e. IRDA) pursuant to its representation dt. 06.09.2010 and insurance company simply retreated its earlier decision of repudiation of the claim as was conveyed vide their (Insurance Companys) letter dt. 11.09.2003 and prayed to IRDA for communicating the decision whatsoever have been taken on her representation dt. 06.09.2010 but on not receiving any response from IRDA to its representation the complainant filed the present complaint before this Commission alleging deficiency in service on the part of the OP in not passing the claim and repudiating the same on flimsy and wrong grounds and prayed for directing the OP to pay the claim amount of Rs. One Crore in respect of Accident Guard Policy No. 0200005250, which was inforce at the time of attack with firearms by some unknown persons on the insured Sh. Mahesh Chand Gupta.
8) Registered AD notice was served on the OP who appeared and contested their case. OP filed its written statement. Both the parties filed their evidence by way of affidavit as well as both the parties filed their written arguments. Both the parties led their arguments. File perused.
9) The OP in its written statement stated that they have very categorically mentioned in their letter dt. 14.10.2010 written to the complainant informing therein the reasons for not passing the claim and informing the complainant that they are unable to consider the request of the complainant to pass the claim.
10) The main defense of the OP revolves around the reasons mentioned in their letter dt. 14.10.2010 written to the complainant for not passing the claim and reasons mentioned are as follows:-
a. Your son was running a sweet shop and his income as per Income Tax is about Rs. 82,000/- p.a. b. The premium for the Policy and the application form was handed over by brother of the insured Mr. Mahavir Chand Gupta, who was later on chargesheeted by the police for the murder of Mr. Mahesh Chand Gupta.
c. The policy was obtained with the fraudulent intention & misrepresentation as the signature of the insured on the proposal form & his usual signature as obtained from the family is different.
d. The proposal form submitted to us at the time of obtaining the policy mentioned that the deceased had income in excess of Rs. 1,50,000/- p.a. and that he was unmarried. However, these statements are materially wrong & incorrect.
e. The deceased was married for about 3 years and you were named the nominee under policy. Interestingly the wife of the deceased was not aware of the existence of the Policy until the investigations into the claim.
11) The complainant in its rejoinder to the written statement filed by the OP has rebutted all the reasons mentioned by the OP. We have heard arguments led by both the parties very extensively and one by one we now deal with the submissions made by both the parties and the ground taken by the OP for repudiation of the claim.
12) Present policy was issued on 19.09.2002 vide policy number 020000525000 in favour of Sh. Mahesh Chand Gupta, since deceased. The insurance period was effective from 17.09.2002 to 16.09.2003.
Insured/policy holder nominated his mother namely Mrs. Mayadevi Gupta as beneficiary/nominee, but there is no rule or terms and conditions neither in the policy document or in insurance act which mandates that wife has to be nominated or the mother cannot be sole nominee, as such objection taken on this point by insurance company has no merit.
13) It is also wrong to say by the OP that they came to know of the incident very late, because incident which led to death of the policy holder took place on 19.05.2003, the insurance company was involved in the investigation of the case by the police, during trial private investigator of the company, agent, handwriting expert engaged by the company and Sameer Bahadur HOD of insurance company were examined. As such insurance company came to know of the incident immediately i.e. soon after the date of incident which is evident from the letters and communication with police officials placed on record by the opposite party. (Ex R3, Ex R4, Ex R5).
14) As to the reason for not passing the claim by the OP because the premium of the policy and the proposal form was handed over by the brother of the insured i.e. Mahavir Gupta who was later on charge sheeted by the police and signature on the proposal form and his usual signatures as obtained from the family of the insured were found to be different. To this we find that in the present case perusal of report Ex R6 given by D DGoel private handwriting expert engaged by the insurance company would show that he has not provided any reasoning for his conclusion, criteria used for arriving at the final conclusion is absent from the said report as such in light well settled legal position with regard to expert opinion the said report has no evidentiary value.
15) It cannot be gainsaid that the duty of the expert is to depose and not to decide. The only function of the expert is to furnish the report with the necessary scientific criteria so as to enable the judge to come to an independent conclusion. Data and analysis are provided by the expert.
Conclusions are drawn by the Court.
In certain cases expert may give his opinion. But such an opinion is not binding on the Court. In other words, courts not bound to accept opinion of handwriting expert.
This principle was also propounded by Lord President Cooper in Davis V. Edinburgh Magistrate reported in 1953 SC 34 (Scottish Decision) which was relied upon by the Supreme Court in MurariLal vs. State of M.P.MANU/SC/0189/1979: 1980CRILJ396. The observations of the Supreme Court that the Courst is to form its own independent judgment on the basis of the scientific criteria are as follows:-
An expert depose and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of those criteria to the facts proved in evidence. Therefore, the approach of the court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
16) Police carried out investigation in the matter and filed a charge sheet in trial court of criminal jurisdiction arraying brother of deceased namely Mahavir as one of the accused on the allegation of having conspired to get his brother killed for claiming said policy claim.
17) The above said handwriting expert Sh. D.D.Goel was examined in trial court but the Ld. Trial Court has observed in the impugned judgment that PQ10 was engaged by TATA AIG insurance company to compare signatures and handwriting on Ex.PW5/A and PW5/5. There is no report proved on record by the prosecution to establish that the signatures and handwriting appearing in proposal form Ex. PW5/A was of accused Mahavir Gupta.
18) Samir Bahadur, HOD of insurance company, Mahavir Gupta (brother of deceased/policyholder) had deposed before the Ld. Trial Court that on inquiry it revealed that brother of the deceased Mahavir Gupta himself had earlier taken insurance policy of Rs. 10 Lacs from the same agent.
19) This fact of previous policy taken by Mahavir Gupta has also come in the letter written by Shashwat Goyaliya (annexure R-5 of reply filed by the opposite party). It is clear that one policy was taken by Mahavir Gupta prior in time of that of deceased but there is no explanation as to why handwriting of Mahavir Gupta from his policy was not matched with handwriting on proposal form of the deceased instead of other documents.
20) It was further deposed by Sh. Samir Bahadur that their investigator has reported that deceaseds wife handed over to him the cheque signed by her late husband which was returned by the bank due to insufficient funds. On the other hand, Anil Kumar, investigator engaged by the insurance company (annexure R-4 of the reply filed by the opposite party) states that aforesaid cheque signed by deceased was handed over by the father in law of the deceased. There is material contradiction in both the statements with regard to source of said cheque which was allegedly used by the private handwriting expert to match with the handwriting/signature on the proposal form.
During course of argument Ld. Counsel for the insurance company argued that the said cheque was obtained from the bank, which brings third version on record as such source of acquisition of said cheque is highly doubtful with contradictory version being given by insurance company.
21) Claim of the present complainant was repudiated by the insurance company vide letter dt. 11.09.2003 Ex. R7 on the ground that the said insurance policy has been taken with fraudulent intention and misrepresentation of facts and further stated in the said letter that in terms of uniform provision No. 7 of Accident Guard Policy, the entire policy is being treated as null and void.
22) In continuation of previous repudiation letter, upon a complaint made to the IRDA the opposite party sent a letter dt. 14.10.2010 to the complainant, Ex. CW1/E, and the grounds taken has already been enumented above which stated to be reasons for repudiation of said claim:
23) As for second and third ground taken by the opposite party, it is very much relevant to peruse statement of Shashwant Goyaliya (Ex R5) in letter dt. 28.07.2003 wherein he stated that I met Mr. Mahesh Chand Gupta at his shop at M/s Aggarwal Sweet Shop, Gali No. 12, Bihari Colony Delhi in the month of August 2002, I discussed with him both the life and accident guard policy, he showed interest in accident guard policy and asked me to leave the proposal form.
24) In his cross examination before the Ld. Trial Court Sh. Shashwant Goyaliya admitted that when he met Sh.
Mahesh Chand Gupta in his shop for the first time accused Sh. Mahavir Gupta was not present there and he had left the proposal form with Mahesh Chand Gupta then and there. In the same deposition he further stated that the receipt in support of the premium amount regarding the insurance used to be sent directly to the house of the insured (Para 17 of judgment Ex CW1/B).
25) Laxmi wife of the deceased deposed before the Ld. Trial Court and she identified signatures of her husband on proposal form. She further stated that she had come to know from her husband about the policy of Rs. One Crore at the time of Diwali Prior to his death.
She further denied the suggestion that police had shown her the original proposal form of TATA AIG and on seeing it she had told that the signatures and handwriting were not of her husband.
(Para 18 of Judgment Ex. CW1/B).
26) In view of the above said deposition of wife of deceased, signature on the proposal form cannot be said to be that of anyone other than the deceased policyholder. Also, the duly filled proposal form was accepted by the agent of the insurance company even if the same was allegedly handed over by the brother of the deceased, if the same was improper then the said form should not have been accepted in the first place. Under the circumstances wherein the said form was handed over directly to the deceased/policyholder and a receipt directly sent to the address of the policyholder, any subsequent objections is liable to be dismissed.
There is policy duly approved and issued by the insurance company and the claim cannot be denied on surmises and conjectures.
27) Ld. Trial Court acquitted all the accused persons including Mahavir Gupta with the observation that Accused persons are also charged for hatching criminal conspiracy to commit murder of Mahesh Gupta. Criminal conspiracy is always hatched in secrecy and is not possible to get direct evidence to establish an agreement and meeting of mind amongst accused persons prior to date of incident. Absolutely no evidence has come on record to establish that prior to the date of incident, if accused persons had ever met or there was any agreement and meeting of mind between them to commit this dastardly act. (Para 28 of judgment Ex CW1/B).
28) Ld. Trial Court rejected the alleged theory of insurance sum as motive for murder by observing in the judgment that For the sake of arguments even if allegations of conspiracy to kill to his brother Mahesh Chand Gupta is accepted the question arises why he did not mention his name as nominee and rather mentioned name of his mother as a nominee of the insurance policy. If after death of Mahesh Chand Gupta any amount would have been given by insurance company that would have gone to mother of the accused. After mother that amount would have fallen to all the legal heirs and not only to accused Mahavir Gupta. (Para 23 of Judgment Ex. CW1/B).
29) First and fourth ground taken by the OP is false on the face of it, bare perusal of proposal form Ex. R2 would show that under the head of additional details, corresponding to gross annual income of the household, box with greater that Rs. 1,50,000/- is checked. Gross household income is clearly different from income of Individual which is on net income and may have been reflected in income tax returns in his capacity as individual. Also, it is pertinent to mention that under the column of family, name of spouse as Laxmi D Gupta is given in the proposal form and marital status is shown as married in the proposal form as such there is no misrepresentation on the part of policyholder and such objections have been taken with malafide intention to deny the valid claim of the complainant.
30) None of the ground taken by the insurance company holds good to deny the valid claim of the complainant/nominee who is the mother of the insured/deceased/policyholder.
31) In a overzealous bid to further frustrate claim of the complainant, another objection has been taken by the insurance company in reply filed before the Honble Commission whereby insurance company came up with new objection saying that the deceased/insured was murdered due to an intentional, deliberate, planned act on the part of some persons, the same would not fall under the definition of accident as stated in the policy terms and conditions.
32) It is very much important to quote the exact policy clauses (Ex.R1) in this regard:
33) Under the head of General Definition, accident is defined as accident means a sudden, unforeseen, uncontrollable and unexpected physical event to the insured person caused by external, violet and visible means occurring the circumstances described in a hazard applicable to that person.
34) Under the head of General Exclusions, exceptions are provided for where insurance company is not liable to settle the claim, the said section reads as under:
This entire policy does not provide benefits for any loss resulting in whole or in part from, or expenses incurred, directly or indirectly in respect of:
a. Suicide, attempted suicide (whether sane or insane) or intentionally self-inflicted injury or sexually transmitted conditions, mental or nervous disorder, anxiety, stress or depression, acquired immune Deficiency Syndrome (AIDS), Human Immuno Deficiency Virus (HIV) infection or b. Serving in any branch of military or armed forces of any country, whether in peace or war, and in such an event. We, upon written notification to you, shall return the pro rata premium for any such period of service during the circumstances described in a hazard.
c. Being under the influence of drugs, alcohol, or other intoxicants or hallucinogens unless properly prescribed by a physician and taken as prescribed.
d. Participation in an actual or attempted felony, riot, crime, misdemeanor or civil commotion, or e. Operating or learning to operate any aircraft or performing duties as a member of the crew on any aircraft or f. War, civil war, invasion, insurrection, revolution, act of foreign enemy, hostilities (whether war be declared or not), rebellion, mutiny, use of military power or usurpation of government or military power, or g. Terrorist act, or h. The intentional use of military force to intercept, prevent or mitigate any known or suspected terrorist act, or i. Ionizing radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste from burning nuclear fuel or j. The radioactive, toxic, explosive or other dangerous properties of any explosive nuclear equipment or any part of that equipment or k. Congenital anomalies or any complication or condition existing there from or, l. Participation in winter sports, skydiving/parachuting, hand gliding, bungee jumping, scuba diving, mountain climbing (where ropes or guides are customarily used), riding or driving in races or rallies using a motorized vehicle or bicycle, caving or port holing, hunting or equestrian activities, skin diving or other underwater activity, rafting or canoeing involving white water rapids, yachting or boating outside coastal waters (2miles), participation in any professional sports, any bodily contact sport or any other hazardous or potentially dangerous sport for which you are untrained.
35) In the policy document, terms and conditions, clearly lay down exclusions exhaustively where benefit shall not be extended. It is clear from the list of exclusions that murder was not included as one of exclusion. If terrorist act can be listed as one of the exclusion, death in felony act or murder could have been included if the same was to excluded, in the absence of any such specific entry in the exclusion list insurance company cannot raise this fresh plea to deny valid claim of the complainant.
36) In the present case, death of insured/policyholder was caused by firearm when fired upon by some unknown persons in late hours when insured was closing his shop, police filed charge sheet in the case arraying brother of insured as accused who conspired to get his brother killed for claiming the said insurance claim. As submitted above, said charge of conspiracy was never proved and the brother of insured acquitted by the Ld. Trial Court with observation that absolutely no evidence was found for the alleged conspiracy, as such it remains case of death where exact motive and circumstances could not be ascertained.
It may have been a robbery where death was caused when insured/policyholder/deceased resisted and he was shot dead by them as he was admittedly as per prosecution case he was present at his sweet shop at the time of alleged incident and robbery cannot be ruled out.
37) The Honble Supreme Court in Smt. Rita Devi Vs New India Assurance Co. Ltd. dealt with the actual legal import of the words death due to accident out of the use of motor vehicle whereas the word motor vehicles act does not define the word accident. Honble Supreme Court was pleased to frame the question as: can a murder be an accident in any given case? But it is pertinent to mention here that the said question was answered in context of death due to accident out of the use of motor vehicle. In present case, where Motor Vehicle Act is inapplicable and in view of clear wording in the policy document where murder is not listed as one of the exclusion, question as to simpliciator murder or accidental murder is not relevant. Even for the sake of arguments, in the peculiar facts and circumstances of the present case, it cannot be said that it is case of simpliciator murder. In Rita Devi (Supra), Honble Supreme Court observed that in common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The differences between a murder which is not an accident and a murder which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the act of felony is to kill any particular person then such killings is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.
38) Even in the facts of Rita Devi (Supra), exact events leading to murder of insured could not be ascertained yet Honble Court considered the possibility of murder in course of stealing of auto rickshaw which was never recovered and held the same to be accidental murder on the basis of a likely theory. Alleged assailants were never caught, it could very well have been a case of deliberate murder and auto rickshaw may have been disposed off to destroy forensic evidence, yet Honble Court gave benefit to claimant in absence of any evidence of exact sequence of events.
39) Also in case titled as Oriental Insurance Co. Ltd. Vs Phulo Devi & Ors. Honble Court had the occasion to consider case, though again under M V Act, wherein deceased was stabbed to death by persons already known to him, assailants had ran away from the spot with vehicle as well as money on the person of deceased. Honble Court held it to be case of accidental death out of use of motor vehicle though it may not be ruled out that it was case of murder out of old enmity or theft to be incidental to murder but in the absence of any cogent evidence for conclusion on the exact sequence of events, benefit was given to the claimants.
40) In the case K.Sanjaimma Vs LIC of India & Anr. Revision Petition No. 865/866 of 2011 which has been filled by the OP in their support Honble National Commission had accepted the observations of State Commission of Andhra Pradesh which were based on the finding and observations of the Session Judge in the murder case, so it cannot be said that proof required in a criminal case is different in a civil case, therefore, event this judgment also does not come for help of the OP.
41) Keeping in view, the above discussions and case law discussed, we find that there is grossest type of deficiency on the part of OP in not paying the claim payment payable under the policy for such a longtime and OP caused lot of mental agony and harassment to the complainant. As the complainant has prayed only for payment of claim amount under the policy. We accordingly, order the OP to pay Rs. One Crore to the complainant which is the sum for which son of the complainant was insured under the policy.
42) No order as to cost and compensation.
43) The above orders be complied with by the OP within 30 days from the receipt of these orders and if OP fails to comply with the above orders the complainant shall be at liberty to approach this Commission u/s 25/27 of Consumer Protection Act 1986.
44) Copy of the order be made available to the parties free of cost as per law and thereafter case file be consigned to record room.
Announced on this 21st April 2014.
(S.A.Siddiqui) Member (Judicial) (S.C.Jain) Member Fatima 21.04.2014 C-163/2011 Maya Devi Gupta Vs TATA AIG General Insurance Co. Ltd.
Order announced separately. Complaint allowed. Copy of the order be supplied to the parties free of cost as per law and case file be consigned to record room.
(S.A.Siddiqui) Member (Judicial) (S.C.Jain) Member Fatima