National Consumer Disputes Redressal
National Insurance Co. Ltd. vs Shri Madhusudan Das on 25 May, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 471 OF 2006
(From
the order dated 2-12-2006 in Appeal No.457/1999
of the State Commission, Orissa)
National Insurance Co. Ltd.
Balasore Branch,
Vinoy Kunja, Hospital Road,
PO/Dist, Balasore
Also at:
DRO-1, Jeevan Bharti,
Connaught Circus,
New Delhi Petitioner
Versus
Shri Madhusudan Das
S/o Late Shri Radhakrushna Das,
Vill-Sankhudi, PO: Mathani,
PS: Basta, District-Balasore
Respondent
BEFORE:
HONBLE
MR.JUSTICE V.B. GUPTA, PRESIDING MEMBER
HONBLE
MR.SURESH CHANDRA, MEMBER
For the Petitioner :
Mr. P.K. Seth, advocate
For the Respondent :
Mr. Hardayal Gupta,
advocate
PRONOUNCED
ON 25th MAY, 2011
ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER By way of this revision petition there is challenge to the order dated 2nd December, 2005 passed by the State Consumer Disputes Redressal Commission, Cuttack, Orissa (For short State Commission). Vide impugned order, State Commission dismissed the appeal of the petitioner against order dated 29th April, 1999 passed by District Forum, Balasore.
2. Brief facts are that respondent/complainant filed a complaint before the District Forum alleging deficiency in the service on the part of the petitioner. It is alleged that respondents mother Smt. Padmabati had obtained a Personal Accident Insurance (Individual) Policy from the petitioner. Sum assured under the policy was Rs.1 Lakh. During subsistence of the policy, Padmabati Das died on 25th January, 1997 due to snakebite. Since petitioner did not take any step to make the payment under the policy, respondent filed a complaint.
3. In the written statement, petitioner has pleaded that the death of the life assured was not on account of snakebite but it was natural death.
4. District Forum allowed the complaint and directed the petitioner to pay to the respondent a sum of Rs.1 Lakh with interest @ 12% p.a. from the date of the death of life assured Padmabati Das, till the payment is made.
5. It is contended by learned counsel for the petitioner that both the Fora below have ignored the report of Dr. Shreekanth Das before whom the lady was brought for treatment after the alleged snakebite. As per report of Dr. Shreekanth Das, on examination of the blood, no clot was found suggestive of poison present in the blood. Had it been a case of snakebite, Dr. Shreekanth Das would have immediately recorded the same in his report on physical examination of the lady and the poison must have been present in the blood of the patient. Thus, there is no evidence on record to show that petitioner died from snakebite.
6. On 2nd May, 2011 when matter was fixed for final arguments, Mr. Hardayal Gupta, representative of respondent was present and at his request matter was passed over awaiting his counsel. Even on the second call, counsel for respondent did not appear. Since the matter is quite old one, arguments advanced by learned counsel for the petitioner were heard and counsel for respondent was given liberty to file written arguments within two days, if any. No written arguments were filed by the respondent counsel within the specified period.
7. Short question which arises for consideration is as to what is the cause of death of Padmabati Das. On behalf of respondent, Dr. Shreekanth Das was examined as PW-1 before the District Forum. He has proved the death certificate and has also certified that Padmabati Das died due to snakebite at her residence.
8. On the other hand, there is no evidence on behalf of the petitioner to show that Smt. Padmabati Das has died a natural death.
9. As per medical evidence placed on record, Padmabati Das was taken to Dr. Shreekanth Das on 24th January, 1997 at about 11.30 p.m. and as per case history recorded by this Doctor, it clearly indicates that snakebite over front part of upper portion of right foot while going on the way to lavatory. Doctor has further observed that there is swelling on right foot and lower part of right leg and the patient is restless. Doctor thus suggested test with regard to blood for clot contraception. Thus, 25th January, 1997 at about 2.00 a.m., blood for clot contraception test was analysed. It was found to be negative i.e. No clot found. Suggestive of poison present in the blood.
10. However, in the medical report it is also mentioned that patient is restless and there is swelling of both Gelsdy and was advised hospitalization at 4.30 a.m. Unfortunately, patient died at 5.30 a.m.
11. Taking above medical evidence into consideration, even though no clot was found suggestive of poison present in the blood, but it is apparent that there was swelling on the right foot and lower part of the right leg and the patient was restless. Moreover, patient died within few hours after she was brought before the Doctor. In view of these facts, by no stretch of imagination it can be said that it was a natural death.
12. In this regard, relevant findings of the District Forum are reproduced as under;
Therefore, in the light of the oral and documentary evidence adduced in this case coupled with evidence of PW-1 Dr. Shreekanth Das, his certificate Ext.4 and the extract of birth and death register Ext.6 it is clear that there is sufficient evidence on record to show that the life assured Padmabati Das died due to snakebite. The O.Ps Insurance Co. signally failed to show that life assured Padmabati Das did not die by snakebite on 25.1.1997. In the absence of any material to show that Padmabati Das did not die on 25.1.1997 due to snakebite but she died due to her old age disease on 14.1.1997 and in the light of the overwhelming evidence adduced by complainant in this case we are satisfied that repudiation of claim made by O.Ps-Insurance Co. under the policy in the name of the complainants mother Padmabati Das is arbitrary and not based on any material evidence and it is not bona fide.
13. State Commission also concurred with the findings of the District Forum and observed;
The limited question that arises for consideration is to ascertain the cause of death of Padmabati. On behalf of the respondent, Dr. Shreekant Das,U.G. Primary Health Centre, Basta was examined as PW-1. He proved the death certificate granted on 23.3.1997, which is Ext.4. He has certified that Padmabati died due to snake bite at her residence. There is no reason as to why the statement of the Doctor should not be accepted. He is an independent witness and has no interest in the matter. Besides the evidence of the doctor, some villagers were also examined, who stated that Padmabati died due to snake bite.
14. In United India Insurance Company Ltd. vs. Pallamreddy Aruna [IV (2007) CPJ 389 (NC)] this Commission has observed;
In our view, the finding of the fact recorded by the District Forum as well as the State Commission does not call for any interference because they have relied upon the Certificate issued by the Police Officer, after investigation, to the effect that the insured died due to snakebite.
The Village Administrative Officer has also given a certificate to the same effect, and, also the doctor who enquired into the cause of the death of the deceased established that the insured died due to snakebite.
15. In the present case also there are concurrent findings of the facts by two fora below stating that mother of respondent has died due to snake bite and they have relied upon the statement of Dr. Shreekanth Das (PW-1) who has treated the patient and has proved medical evidence to the effect that the death has actually been caused on account of snake bite. Above findings of the two Foras below are based on oral as well as documentary evidence and we find no ground to disagree with their sound reasoning.
16. Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and others, (AIR 1999 (SC) 3095) observed;
It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below.
17. Recently, Supreme Court in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed that;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. IN this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.
18. We must express our deep anguish over the manner in which petitioner (National Insurance Company) is bent upon depriving a son, the fruits of insurance policy which his mother took under bona fide belief that after her death, her family would get some monetary compensation. For last thirteen years, petitioner has made respondent run from pillar to post, just to get his rightful claim.
19. Even, after getting two adverse findings, petitioner has chosen not to settle the claim but has dragged the son of deceased/ insured to the highest fora under the Consumer Protection Act.
20. It is a well-known fact that Courts across the country are saddled with large number of cases.
Public Sector undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so.
21. Public Sector undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain.
Public Sector undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public Sector undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.
22. Apex Court in Bikaner Urban Improvement Trust Vs. Mohal Lal 2010 CTJ 121 (Supreme Court) (CP) made significant observations which have material bearing, namely,
4. It is a matter of concern that such frivolous and unjust litigation by Governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation.
Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to the corrected.
5. This Court has repeatedly expressed the view that the Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf.
5.1 In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554, where this Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court.):
The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the States interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak. Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations, which move private parties to fight in Court.
The lay-out on litigation costs and execution time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.
5.2 In Madras Port Trust vs. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held:
2. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable.
5.3 In a three-Judge Bench judgment of Bhag Singh & Ors. v. Union Territory of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737.
3. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen.
6. Unwarranted litigation by Governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:
(i) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest Court of the land.
(ii) If taking a decision on an issued could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secure a decision.
The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers-in-charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision-making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to Courts and Tribunals.
The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such an exercise. The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation. Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice to bonafide and needy litigants.
7. In this case, what is granted by the State Commission is the minimum relief in the facts and circumstances, that is to direct allotment of an alternative plot with a nominal compensation of Rs.5,000/- .
But instead of remedying the wrong, by complying with the decision of the Consumer Fora, the Improvement Trust is trying to brazen out its illegal act by contending that the allottee should have protested when it illegally laid the road in his plot. It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National Commission and then this Court. The Trust should sensitize its officers to serve the public rather than justify their dictatorial acts. It should avoid such an unnecessary litigation.
23. In Ravinder Kaur Vs Ashok Kumar, AIR 2004 SC 904, Apex Court observed:
Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system.
24. Since two fora below have given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petition is hereby, dismissed with cost of Rs.50,000/- (Rupees Fifty thousand only). Out of this, Rs.25,000/- shall be deposited in Consumer Legal Aid Account and balance amount of Rs.25,000/- of cost, be paid to the respondent.
25. Petitioner is directed to deposit the cost by way of cross-cheques, one in the name of Consumer Legal Aid Account and second in the name of respondent, within eight weeks from today.
26. Meanwhile, petitioner shall recover the cost amount from the salaries of the delinquent officers who have been pursuing this merit less and frivolous litigation, with the sole aim of wasting the public exchequer. The affidavit giving the details of the officers from whose salaries the cost has been recovered, be also filed within eight weeks.
27. However, the cheque for the sum of Rs.25,000/- in the name of respondent, shall be paid to him only, after the expiry of the period of appeal or revision preferred, if any.
28. Pending application also stands disposed of.
29. List for compliance on 29th July, 2011.
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(V.B. GUPTA, J.) PRESIDING MEMBER ...
(SURESH CHANDRA) MEMBER Raj/