State Consumer Disputes Redressal Commission
Anil Sharma vs H D F C Chubb General Insurance on 24 February, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. C/2006/25 1. Anil Sharma ...........Complainant(s) Versus 1. H D F C Chubb General Insurance ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE Virendra Singh PRESIDENT HON'BLE MR. Jitendra Nath Sinha MEMBER HON'BLE MR. Jugul Kishor MEMBER For the Complainant: For the Opp. Party: ORDER RESERVED STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTAR PRADESH LUCKNOW COMPLAINT CASE NO. 25 OF 2006 1. Anil Sharma 2. Pradeep Sharma 3. Sanjay Sharma All sons of Ram Nivas Sharma 4. Smt. Radha Sharma w/o Ram Nivas Sharma All resident of Antapara City Mathura, presently at Badeopuram, Damodarpura, Agra Mathura Road, Post Aurangabad Tehsil and District Mathura Complainants Versus 1. HDFC Chubb General Insurance Company Limited, 5th Floor, Nariman Point , Mumbai through its General Manager. 2. General Manager, HDFC Chubb General Insurance Company Limited, 5th Floor, Nariman Point , Mumbai Opposite parties BEFORE HON'BLE MR. JUSTICE VIRENDRA SINGH, PRESIDENT HON'BLE MR. J.N. SINHA, MEMBER
HON'BLE JUGUL KISHORE, MEMBER For the Complainants : Sri Naveen Kumar Tiwari, Advocate For the Opposite parties : Sri Manoj Dubey, Advocate DATED: 26.06.2015 JUDGMENT MR.JUSTICE VIRENDRA SINGH, PRESIDENT The instant complaint has been filed by the complainants against the repudiation of their claim by the opposite parties claiming following reliefs :-
The total insured amount of Rs.22.50 lacs of policy no. 93642996 which was insured in favour of late Ram Nivas Sharma the father of complainant no. 1 to 3 and husband of complainant no. 4, be awarded to the complainants against the opposite parties with 18% interest w. e. f. the date of the death of insured i.e. on 11.11.2006.
The compensation of Rs.1,00,000/- be awarded towards mental agony and harassment of the complainants.-2-
Rs.11,000/- towards litigation expenses.
The cost of the complaint be awarded to the complainants.
The case of the complainants as per their complaint is that Ram Nivas Sharma father of complainants 1 to 4 and husband of complainant no.5 had taken an accidental policy no. 93642996/00001-BAPPHV issued on 05.04.2005 by opposite parties and it was proposed that Rs.22.50 lacs would be paid to the beneficiary on the accidental death of the insured person but the opposite parties despite the death of Ram Nivas Sharma have denied the payment vide order dated 31.03.2006 in an illegal and arbitrary manner. The opposite parties even did not supply the policy to Ram Nivas Sharma during his life time.
It is stated by the complainants that in the night of 10/11-11-2005, when Ram Nivas Sharma was sleeping in his house, some poisonous snake bit him because of which he died on 11.11.2005 and the cause of death was shown by the doctor 'Cardio Vascular Respiratory Farlous due to shock. The complainants and other family members of the deceased were not aware about the insurance policy. They came to know about the said policy when they were searching some documents. Thereafter the complainants approached the insurer who advised them to fill up Form 'E' which the complainants had filled up and submitted to opposite parties. The complainants also submitted all the relevant documents to the insurance company. The opposite parties had sent a letter on 31.03.2006 mentioning that the policy of Ram Nivas Sharma has been repudiated on various reasons and therefore, payment of claim cannot be made. On account of dereliction of duty by the opposite parties the complainants suffered monetary loss and injury due to deprivation, harassment and mental agony for which they are entitled for compensation and the payment of full insured amount with interest from the opposite parties.
The opposite parties have filed written statement denying all the allegations levelled by the complainants against them and stated that the insured died on 11.11.2005 due to pre exiting illness and not due to any accident. The surveyor appointed by them had taken statements of relatives of deceased and Gram Panchayat and basing upon the information furnished by them he had concluded that the deceased was old and infirmed person whose both legs 7-8 years prior to -3- his death were burnt in an accident and he was not able to stand on his legs. Since the complainants had knowingly and willfully concealed the material fact of the pre-existing illness of the insured and moreover there are no evidence to lead to the conclusion that the insured has died due to any accidental injury therefore, the present complainant is liable to be rejected with cost and no relief is liable to be granted to the complainants.
The complainants have filed the following evidence/documents in support of their case:
Annexure- 1 Copy of letter dated 05.04.2005 sent by insurer to Ram Nivas Sharma stating that he has been covered under the policy w.e.f. 07.04.2005.
Annexure -2 Copy of death certificate issued by the doctor on 07.12.2005 stating the cause of death 'Cardio Vascular Respiratory Farlous due to shock.
Annexure -3 Copy of application dated 15.11.2005 submitted by complainant no.1 to Gram Panchayat for issuing death certificate in respect of Ram Nivas Sharma.
Annexure -4 Copy of Death Certificate dated 21.11.2005 in respect of Ram Nivas Sharma.
Annexure-5 Copy of Form 'E' submitted by the complainants to the insurer.
Annexure-6 Copy of letters received by the complainants from insurer and its surveyor.
Annexure-7 Copy of relevant documents submitted by the complainants to insurer.
Annexure-8 Copy of letter dated 31.03.2006 sent by the opposite parties to complainant no.1 stating that the policy of Ram Nivas Sharma has been repudiated.
The complainants have also filed supplementary affidavit annexing notary affidavits of Rakesh Diwakar Sarpanch of Gram Panchayat Aurangabad, Satyapal Singh , Uppradhan, Gram sabha Damodarpura, Surendra Singh, Ex-pradhan, Gram -4- Sabha Damodarpura and Smt. Krishna Sharma, narrating the actual situation of the deceased.
The complainants have filed their written arguments reiterating the facts mentioned in the complaint and submitted that the case of the claimants is fully covered by the various judgments passed by the Hon'ble National Commission and Hon'ble State Commission. The citation of case laws are as under:-
2009(2) CPJ page 314 paras 4,5 and 6 (Gangotri Devi versus National Insurance Company) 2006 CPJ page 11 (Dharmsetty Srinivas Rao versus New India Assurance Company Limited) Appeal no. 1129 of 2008 (Suresh Prakash versus New India Assurance Company Limited) Judgment dated 15.01.2010 (State Commission U.P.) 2006 CPJ (3) page 199 State Insurance versus Parmali (Rajasthan State Commission) Paras 11, 12 and 13.
The opposite parties have filed following evidence by way of affidavit sworn by Sri Anand Mishra, Assistant Legal Manager Claims :-
Annexure-1 True copy of surveyor report dated 31.01.2006 stating that death of the insured took place due to pre existing illness.
Annexure-2 Copy of statement dated 17.12.2005 of Sri Rakesh Diwakar apprising that death of the insured took place due to pre existing illness.
Annexure-3 Copy of statement of Smt. Krishna Sharma reiterating the same fact.
Anneure-4 Copy of letter dated 11.12.2005 of Anil Sharma.
Annexure-5 Copy of Form "E"
Annexure-6 Copy of repudiation letter dated 31.3.2006.
Annexure-7 Copy of Bank Accident Protection Plain High Value Policy (BAPPHV).
The opposite parties have filed written arguments denying the allegations made in the complaint and stating that it is a clear case of concealment of material fact of the pre existing illness of the insured from the insurance company. The -5- Complainants have failed to lodge any FIR with the police and neither produced any evidence which can establish that the bodily injury sustained by the insured resulted directly and independently of all other causes in the death of the insured. There is no evidence with regard to the alleged snake bite. The surveyor of the company vide its report dated 31.01.2006 gave the conclusion that death of insured took place due to his pre existing illness. Sri Rakesh Diwakar , Surpanch village Aurangabad District Mathura certified that fact of the death of Ram Nivas Sharma in which it is clearly mentioned that the complainant applied for registration of death of his father i.e insured only on 18.11/2005 and at the time of registration of the death certificate it was apprised by Sri Anil Sharma that the cause of death of his father was due to illness. The claimant has failed to prove that the death of Ram Nivas Sharma took place due to snake bite. There is no evidence on record to suggest that the death has occurred due to snake bite. The medical certificate annexed by the claimant is forged document. The statement of the neighbours residing in the vicinity of the claimants house corroborate the fact that the deceased was suffering from a pre-existing illness and the claimant is trying to bring the said natural death under the policy coverage in a fraudulent manner to grab the insured amount. Therefore, the complaint is liable to be dismissed.
The opposite parties have placed reliance on the following case laws-
2010 (10) SCC 567 Suraj Mal Ram Niwas Oil Mills versus United India Insurance Company Limited.
2004(8) SCC 644 United India Insurance Company Limited versus Harchand Rai Chandan Lal Hon'ble National Commission in the case of Gas Ghar versus Oriental Insurance Company Limited decided on 23.02.2006.
State Commission Uttrakhand in FA No. 206/2007 decided on 22.10.2009 (Ranjeet Singh versus Iffco Tokio General Insurance ) State Commission Haryana in FA 44/2008 decided on 11.05.2012 (Insurance Company Ltd through Regional Manager versus Bal Kishan and another) State Commission A.P. (Hyderabad) in FA no. 114/2008 (United India Insurance Co Ltd versus Thugunta Naga Chandrika).-6-
We have heard Sri Naveen Kumar Tiwari, learned counsel for the complainants and Sri Manoj Dubey, learned counsel for the opposite parties and perused the entire records.
There is no dispute that Ram Nivas Sharma was insured by the opposite party for accidental claim to the tune of Rs.22.50 lacs and Ram Nivas Sharma died on 11.11.2005. The only dispute in between the parties lies for the fact as to whether Ram Nivas Sharma was died due to accident or he was died due to illness existing prior to the insurance and the same was concealed by the complainants. In this regard there is oath against oath as is evident from the evidence filed by both the parties but the fact remains intact on record that there was Sub clause 4 in the policy conditions which is as follows:-
"The Company at its own expense shall have the right and opportunity to examine the insured person whose bodily injury or sickness is the basis of a claim and as often as it may be reasonably required during the pendency of the claim and to make an autopsy in case of death."
Seeking recourse of the aforesaid provision the insurer submitted that the deceased was ill prior to the coverage of insurance and this fact has been concealed by the insured and on enquiry made after the death of insured by the insurer it was revealed that he died due to illness and not accident. There was no sign of any injury on the body of the deceased. It is submitted on behalf of the complainants that the insurer did not send the policy of Ram Nivas Sharma during his life time, so his legal heirs could not know about the terms and conditions of the policy which shows gross deficiency and negligence in service of the insurer, but without entering into the merit of this fact as to whether there had been any concluding contract in between the parties as the policy is said to have not been sent by the insurer during the life time of the insured, we may proceed ahead. There had been no plea for this fact from the opposite side and we may conclude that there had been a concluding contract in between the parties for which there is no dispute in between the parties.
So far as the question of this contention of the complainants is concerned that Ram Nivas Sharma died accidentally due to snake bite on 11.11.2005 and the cause of death, as shown by the doctor is Cardio Vascular Respiratory Farlous due to shock. As per the death certificate issued by the Doctor in respect to Ram Nivas -7- Sharma and the death certificate issued by the Gram Panchayat thereby finding that death of Ram Nivas Sharma was an accidental death, we are of this view that there is no evidence on which basis reliance can be placed that death of Ram Nivas Sharma was occurred due to snake bite which may be covered under the accidental death. So far as the death certificate issued by the Doctor saying thereby that the cause of death is Cardio Vascular Respiratory Farlous due to shock is concerned, no doubt the cause was snake bite on the leg has been written by Dr. Verma Ved P. saying thereby that he had visited on Baldevpuram Residence at early morning about 4-5 a.m. but such type of certificate placed on record in the form of a photocopy attested by Oath Commissioner merely is not sufficient for placing reliance exclusively unless the original certificate, record of issuing the certificate and the affidavit of Doctor concerned is not brought on record. How the Doctor came to this conclusion that the deceased was died due to Cardio Vascular Respiratory Farlous due to shock and the cause was snake bite on leg unless the Doctor himself explains it on oath because the Cardio Vascular Respiratory Farlous due to shock is common to the person who is facing prolong illness. No doubt Cardio Vascular Respiratory Farlous due to shock may occur in the case of accident also but here in this case since the alleged certificate on record has been issued on 07.12.2005 for the alleged death on 11.11.2005 and there is no other evidence pertaining to medical treatment or other observation of medical side to hold that Cardio Vascular Respiratory Farlous due to shock was occurred due to snake bite and there had been medical treatment of any kind of the patient for the snake bite, such type of photocopy of medical certificate which is brought on record by the complainants is not acceptable there being the sole evidence to be relied pertaining to the fact of accident. Not only this, the complainants themselves are not sure that the death of Ram Nivas Sharma was occurred due to snake bite. The Photocopy of the letter dated 15.11.2005 submitted to Gram Pradhan by Anil Sharma son of the deceased no where stated that the death was occurred due to snake bite as in this application merely it is mentioned that his father has died on 11.11.2005 due to bite of some poisonous insect. Similarly the death certificate issued by the Government of Uttar Pradesh on 21.11.2005, photocopy of which has been brought on record by the complainants , no where discloses the cause of death of Ram Nivas Sharma. In this certificate issued by -8- Government of Uttar Pradesh , there had been shown Registration no. at serial no. 18 but what was the cause of death is no where disclosed in this certificate, nor that record has been brought on record to show that deceased was died due to snake bite. The claim form submitted to insurer that also discloses that the cause of death was show by the claimant due to bite of poisonous insect. In these circumstances the Doctor certificate clearly stating that the cause of death of the deceased was due to Cardio Vascular Respiratory Farlous due to shock caused by snake bite on leg further becomes doubtful. How the Doctor noted that there was snake bite while the legal heirs of the deceased merely are mentioning that the death was caused due to bite by a poisonous insect.
A perusal of the repudiation letter by the insurer shows that the investigator carried out the investigation and found that late Ram Nivas Sharma was suffering from pre existing illness at the time of his death and the death was occurred due to illness and not due to any accident. Section 4 of the policy stipulates that medical advice of a physician shall be sought and followed promptly on the occurrence of any bodily injury which directly and independently of all other causes results in the death of the insured but here in this case no medical advice of a physician showing the injury on the body of the deceased is brought on record and even no intimation of the accidental death, that may not be necessary but in such type of cases should have been given, was given to the police and not even any post mortem is conducted, which are also the additional circumstances on record to justify the repudiation of the claim of the complainants in this case before us.
Section 4 of the policy prescribes an obligation on the insured to provide all certificates , information and evidence as prescribed by the insurer and which gives the right to examine the insured and since no such particular has been given by the complainants to the insurer, in such type of case wherein the death is doubtful as to whether it has been occurred due to illness or accident, we are of this view that the complainants are lacking to abide the terms and conditions of the policy and it does not establish conclusively on record that the deceased was died due to snake bite. In this regard the investigator of the insurer had also recorded the statement of some persons just like the Sarpanch of the Panchayat Mr. Rakesh Diwakar by whom the investigator was informed that the death of the deceased was occurred due to illness. The complainants have also filed the affidavit of that Sarpanch -9- wherein he has admitted that at the time of investigation of the claim , he had stated as was required by the investigator, such type of person cannot be relied on his oath. More so in his affidavit he has not admitted that the death of Ram Nivas Sharma was occurred due to snake bite rather he has stated that he has issued a death certificate as per the application of the son of the deceased. How a person can be said to have been issued a correct certificate , who is certifying the death of Ram Nivas Sharma on the basis of the application of the son of Ram Nivas Sharma that Ram Nivas Sharma was died due to bite of some poisonous insect and earlier he was certifying before the investigator that Ram Nivas Sharma was died due to illness. Similarly the other affidavits filed by the complainants are not reliable as they were stating the factum of illness before the investigator and the factum of snake bite is stated for the complainants.
Looking into the facts and circumstances we are of this view that it was incumbent on the part of the complainants to provide proof to establish that the death of Ram Nivas Sharma was occurred due to accident. Had there been the accidental death alleged to have been occurred due to snake bite or poisonous insect bite there would have been some sort of treatment of the deceased but there is lacking of that treatment as the record of the same has not been brought on record by the complainants so it is a clear case of concocted case of snake bite later on, while the death of deceased seems to have been occurred due to Cardio Vascular Respiratory Farlous due to shock which is the result of illness.
Hence we do not find any substance in this complaint which deserves to be dismissed.
ORDER The aforesaid complaint is hereby dismissed.
(JUSTICE VIRENDRA SINGH) PRESIDENT (J.N. SINHA) MEMBER (JUGUL KISHORE) MEMBER Asif -Steno-Court no.1 [HON'BLE MR. JUSTICE Virendra Singh] PRESIDENT [HON'BLE MR. Jitendra Nath Sinha] MEMBER [HON'BLE MR. Jugul Kishor] MEMBER