State Consumer Disputes Redressal Commission
Khuswinder Kaur vs Fazilka Central Co-Operative Bank Ltd. on 1 September, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
First Appeal No.348 of 2017
Date of institution : 10.05.2017
Reserved on : 18.08.2017
Date of decision : 01.09.2017
Khushwinder Kaur widow of Late Shri Pushpinder Singh, aged about
36 years, resident of House No.2404, Sunny Enclave, Sector 125,
Kharar, District SAS Nagar, Mohali.
.......Appellant-Complainant
Versus
1. Fazilka Central Co-operative Bank Ltd., Branch Office,
Kamalwala through its Branch Manager.
2. Fazilka Central Co-operative Bank Ltd., Head Office, New
Grain Market, Abohar, District Fazilka through its District
Manager.
3. IFFCO TOKYO General Insurance Company Limited, 18,
Gaushala Road, Abohar through its Divisional Manager.
4. IFFCO TOKYO General Insurance Company Limited, IFFCO
House, 3rd Floor, 34, Nehru Place, New Delhi-110 019 through
its Manager.
........Respondents-Opposite Parties
First Appeal against the order dated
6.4.2017 of the District Consumer
Disputes Redressal Forum, Ferozepur.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the appellant : Shri Sandeep Bhardwaj, Advocate. For respondents No.1&2: Shri H.S. Deol, Advocate. For respondents No.3&4: Shri Rajneesh Malhotra, Advocate. First Appeal No.348 of 2017 2 JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The complainant dissatisfied with the order dated 6.4.2017 passed by the District Consumer Disputes Redressal Forum, Ferozepur (in short, "District Forum"), whereby the complaint filed by her under Section 12 of the Consumer Protection Act, 1986 (in short, "C.P. Act") for directing the opposite parties to:-
i) make the payment of ₹50,000/- under Policy No.51337323 under personal accident insurance scheme (PAIS) for KCC Holders and sum of ₹1 lakh under Policy No.51291163 under SBBY insurance scheme, totaling ₹1.5 lakh along with interest @ 12% per annum from 23.10.2013 i.e. the date of death of insured till realization of the amount;
ii) make the payment of ₹5,000/- on account of litigation expenses; and
iii) make the payment of ₹25,000/- on account of pain, sufferings and harassment suffered by the complainant has been dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of the complaint:
3. Brief facts, as averred in the complaint, are that Pushpinder Singh, deceased husband of the complainant, was an account holder of Fazilka Central Cooperative Bank Limited i.e. opposite party No.1 and was insured with opposite parties Nos.3 and 4 First Appeal No.348 of 2017 3 through opposite parties Nos.1 and 2 under Personal Accident Insurance Scheme for KCC holders for ₹50,000/- bearing Policy No.51337323 and under SBBY Insurance Scheme for sum insured of ₹1,00,000/- bearing Policy No.51291163. The complainant, being the wife, is the beneficiary/nominee under the said two policies. Unfortunately, the deceased husband of the complainant died accidental death on 23rd October 2013 in Max Hospital after suffering a gunshot in his chest accidentally while cleaning his revolver. It is the pleaded case of the complainant that after the death of her husband the complainant; being nominee approached opposite parties Nos.3 & 4 and submitted the claim along with relevant documents through opposite parties Nos.1 and 2. Instead of settling the claim and making payment to the complainant nominee for the amount insured under the said policies, opposite parties Nos.3 and 4 repudiated the claim under exclusion clause 3(b) on the ground that the deceased was under the influence of liquor at the time of accident, vide repudiation letter dated 17.12.2014. It is further pleaded that actually the opposite parties never handed over the policies and the same remained with them. As such, the question of knowledge of the terms and conditions of the said policies does not arise. Having repudiated the claim without any justifiable reasons, this act of the opposite parties specifically opposite parties Nos.3 and 4 not only amounts to deficiency in service but also adoption of unfair trade practice on their part.
First Appeal No.348 of 2017 4Defence of opposite parties Nos.1 and 2:
4. Upon notice opposite parties Nos.1 and 2 appeared and filed written statement taking preliminary objections that they have unnecessarily been impleaded as a party and specifically stated that they have deposited the premium with opposite parties Nos.3 and 4 and they issued the insurance policies in favour of the deceased husband of the complainant; namely, Pushpinder Singh. Thus, there is no dispute so far as the insurance policies are concerned. The real dispute is between the complainant and opposite parties Nos.3 and 4. It is also admitted by opposite parties Nos.1 and 2 that they have forwarded all the documents submitted by the complainant to opposite parties Nos.3 and 4. Denying all other allegations made in the complaint a prayer for dismissal of the complaint has been made. Defence of Opposite Parties Nos.3 and 4:
5. Opposite parties Nos.3 and 4 also appeared and filed joint written statement taking preliminary objections that no cause of action and locus standi exist in favour of the complainant. The deceased has himself violated the terms of the insurance policies. There is no deficiency in service on the part of opposite parties Nos.3 and 4. Intricate questions of law and facts are involved, which cannot be decided in summary proceedings. On merits it was pleaded that the deceased assured was having an account with the Bank and the deceased had opted to purchase the said policies through opposite parties Nos.1 and 2. After understanding the terms and conditions of the Policies the deceased husband through opposite parties Nos.1 and 2 had deposited the required premium. First Appeal No.348 of 2017 5 Date of death was also admitted but due to gunshot injury. At the time of such gunshot injury he was under the influence of liquor. To that effect the statement was got recorded by ASI Shingara Singh of Police Station-City, Kharar and this fact has also been admitted by the complainant that her husband was a regular drunkard. So, the claim has been rightly repudiated by them.
Finding of the District Forum:
6. The complainant tendered into evidence documents Ex.C-1 to Ex.C-13, whereas opposite parties Nos.1 and 2 tendered in evidence document Ex.OP1&2-1. However the evidence of opposite parties Nos.3 and 4 was closed by order by the District Forum, vide order dated 3.4.2017. The District Forum after going through the same and hearing learned counsel on behalf of the parties dismissed the complaint, vide impugned order. Hence, this appeal.
7. We have heard learned counsel for the parties and have carefully gone through the records of the case.
Contentions of the Parties:
8. It was vehemently contended by the learned counsel for the complainant that Pushpinder Singh, deceased husband of the complainant died an accidental death in Max Hospital, Mohali after suffering a gunshot injury in his chest while cleaning his revolver. It was further contended that the deceased life assured had taken two insurance policies, which have not been denied and due premiums had been paid through opposite parties Nos.1 and 2 to opposite parties Nos.3 and 4. This fact has been admitted by the opposite parties. It was not a case of suicide or result of excessive intake of First Appeal No.348 of 2017 6 alcohol, which may have resulted into loss of senses. It was further contended that this is a case of unrebutted evidence. The District Forum has not taken into consideration all these aspects and has wrongly and illegally dismissed the complaint, vide impugned order. The same is liable to be set aside and the complaint is liable to be allowed as prayed for.
9. On the other hand, it was vehemently contended by the learned counsel for opposite parties Nos.1 and 2 that Pushpinder Singh, deceased husband of the complainant was the account holder of the Bank and had taken the policies in question through them and due premium for the same was paid to opposite parties Nos.3 and 4. It was further contended that the complainant was the nominee under the said policies and the real dispute is between the complainant and opposite parties Nos.3 and 4. Opposite parties Nos.1 and 2 have been unnecessarily dragged into this litigation.
10. Per contra, it was vehemently contended by the learned counsel for opposite parties Nos.3 and 4 that it is a clear case of suicide due to excessive intake of alcohol and not a case of accidental death. It was further contended that the Investigating Officer i.e. Shingara Singh, ASI in his investigation report and the complainant herself in her statement admitted that her husband used to take liquor daily. Learned counsel made reference to clause 3(b) of the Insurance Policies which clearly states that if the injury is as a result of influence of intoxicating liquor or of drug, then the claim is liable to be repudiated and justified the order passed by the District First Appeal No.348 of 2017 7 Forum. There is no illegality or infirmity in the impugned order passed by the District Forum and the same is liable to be set aside. Consideration of Contentions:
10. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties and have minutely examined the evidence on record.
11. Following questions arise for determination in this case:-
(i) Whether the death of Pushpinder Singh, deceased husband of the complainant nominee in the policies was an accidental death or a suicide and it was the direct consequence of influence of intoxicating liquor or drug?
(ii) Whether the claim has rightly been repudiated by opposite parties Nos.3 and 4 as per exception clause 3(b) of the insurance policies?
In Re: Question No.(i):
12. A perusal of the impugned order passed by the District Forum reveals that the complainant has not led any evidence specifically the police investigation to prove that the death was accidental and not a suicide and the fact of excessive intake of liquor. A further perusal of the order of the District Forum reveals that the entire burden was put upon the complainant to prove the facts to which we disagree for the reasons that firstly it is an admitted fact that after the gunshot injury, Pushpinder Singh, the deceased husband of the complainant was taken to Max Hospital, Mohali. He died in the said Hospital on 23.10.2013. A perusal of the affidavit of the complainant, Ex.C-1, clearly reveals that the husband of the First Appeal No.348 of 2017 8 complainant suffered gunshot injury accidentally while cleaning his revolver. Though it is admitted by the complainant that he used to drink daily but that we will be determining in the preceding paragraphs to what extent the alcohol was consumed by him at the time of his death. Not only this, Post Mortem Report Ex.C-7 has been placed on record. Besides this, the other documents which are with regard to the insurance policies, payment of premiums and other documents and death certificate have also been annexed. In appeal statement of complainant recorded by the police of PS-City, Kharar has been annexed and along with it police action report is also annexed, which has been duly authenticated and the statements of other witnesses have also been annexed indicating the investigation carried out by ASI. In the statement of the complainant it has come that the husband of the complainant was taking liquor and he had been suffering from liver and liquor disease.
As a result of which he had stopped taking liquor from the year 2006 and thereafter in the year 2013 he started taking liquor. It was a Karvachauth day. The whole family had taken the dinner and the husband of the complainant started cleaning the revolver. As a result of which accidentally he suffered gunshot injury and this conclusion has also been derived by the police authorities during its investigation. Relevant part of the police action report is reproduced hereunder:-
"From the perusal of statement, it found that Pushpinderpal Singh was cleaning his revolver and during cleaning suddenly caused gunshot, and died due to accidentally bullet hit in his First Appeal No.348 of 2017 9 chest. This accident caused suddenly and naturally in which there is no fault of any person, the said deponent is also not want to take any legal action against any person, from which no offence is caused to be made out against any person. But the death is of a human being so the proceeding u/s 174 Cr.P.C. is hereby initiated. The said statement has been sent by hand through C Dilbag Singh No.1078 to the police station. I, ASI along with said employees and deponent were present for inquiry."
Thereafter the report under Section 174 of Cr.P.C. was filed and ultimately he was cremated. A perusal of the Post Mortem Report Ex.C-7 nowhere reveals that any smell of alcohol was coming from the body much less there is nothing on record to what extent the alcohol was present in the body of the deceased. Rather if he would have been a drunken and taken excessive quantity of liquor, then there must have been smell in his body and the same must have been noticed by the Doctor, who conducted the post mortem and must have mentioned the same in the post mortem report, Ex.C-7. The only cause of death has been mentioned as shock and hemorrhage due to bullet injury, which is anti-mortem in nature.
13. The District Forum has not discussed about the post mortem report Ex.C-7 from which it could have been inferred whether the deceased husband of the complainant had actually taken excessive liquor or not. Once the complainant has prima facie proved on record that the deceased suffered an accidental gunshot injury while cleaning the revolver, then the burden shifts upon opposite parties First Appeal No.348 of 2017 10 Nos.3 and 4 to prove that it was an intentional suicidal injury and the deceased was under the influence of intoxicating liquor or drug at that time. However, there is nothing on the record to that effect.
14. The District Forum did not properly appreciate the judgments of Hon'ble National Commission mentioned in the impugned order. In M. Sujatha v. The Branch Manager, Life Insurance Corporation of India" 2015(2) CLT 100 the Hon'ble National Commission has specifically held as under:-
"10. Intoxication is perceived as a state of mind in which a person loses self-control and his ability to judge. As per Sections 185 and 202 of the Motor Vehicles Act, it would be considered intoxicated only if the person is tested and found to have more than 30 mg of alcohol in his blood, per 100 ml. In the present case, except for a mere noting in the Final Opinion Report and the FSL report, no test had been done to ascertain whether Blood alcohol concentration (BAC) had exceeded the legally stipulated limit. The mere smell of alcohol or presence of ethyl alcohol in the tissue samples cannot lead to an inference that a person is incapable of taking care of himself."
Hon'ble National Commission while allowing the Revision Petition of the complainant has further held as under:-
12. It should be borne in mind that a person cannot be said to be intoxicated unless alcohol level exceeds the prescribed limit which can only be confirmed through Blood Alcohol Concentration (BAC), which is most commonly used as a metric of alcohol intoxication for legal or medical purposes. First Appeal No.348 of 2017 11
Therefore, the State Commission's observations appear to be unscientific one."
In M/s New India Assurance Company Ltd. v. Ashminder Pal Singh 2015(2) CLT 237 it has been held by the Hon'ble National Commission that consumption of liquor is not a test for application of exclusionary clause of the policy, what is contemplated in the exclusionary clause of the policy is something more than merely consumption of liquor. Driver may not be under influence of intoxication of liquor at the time of accident. Hon'ble National Commission in R.P. No.3243 of 2007 "National Insurance Co. Ltd. v. Soma Devi & Ors." observed as under:-
"Both the post-mortem and the investigators report merely state that the deceased had consumed alcohol without giving any details about the actual amount of alcohol consumed or the type of intoxicants consumed. Even if the post-mortem report stating that the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed."
Though in those cases the insured died in motor accidents but on the same analogy the principle of law can be made applicable in the present case also. Moreover, in the present case there was no smell of alcohol in the body of the deceased husband of the complainant during his post mortem examination and nothing of the sort has been produced on record by the Insurance Company. Therefore, the said First Appeal No.348 of 2017 12 authorities of Hon'ble National Commission have been wrongly discarded by the District Forum while dismissing the complaint.
15. As we have held that the burden shifts upon the opposite parties, we would like to discuss about how opposite parties Nos.3 and 4 have failed to bring any evidence on record to prove that the death was not accidental. It was intentional and suicidal and is the result of influence of intoxicating liquor. There is no dispute that external violent i.e. accidental injury had occurred as a result of shot from the revolver. No evidence has been brought on record that the deceased husband of the complainant was having such a problem that he would have committed suicide and taken excessive intoxicant and thereafter injury would have been caused. It was a Karvachauth day. The whole family had taken the dinner and thereafter he started cleaning the revolver. Virtually no evidence has been led by opposite parties Nos.3 and 4. It is common practice of the Insurance Companies that when death occurs accidentally or otherwise, in addition to the police investigation they appoint their own investigators. In the present case so far as the evidence on record, which is required to be led by opposite parties Nos.3 and 4, the record is devoid of evidence that the deceased husband of the complainant was in a serious condition due to heavy influence of liquor and as a result of the same suffered injury and it was not an accidental injury. Rather the categorical evidence of the complainant is that it was accidental fire. It is common while cleaning the weapons, specifically the revolver which has a number of bullets, sometimes accidentally discharge occurs. During the investigation First Appeal No.348 of 2017 13 by the police even no suicide note was found. No other evidence has been collected from the relatives and friends that he might have discussed with them about his problem. When this type of evidence is available, only then some presumption can be raised. However, in the present case the evidence is such that it was a case of accidental injury resulting into death and presumption is to be raised in favour of the complainant.
16. Opposite parties Nos.3 and 4 failed to show by a far preponderance of evidence that deceased husband of the complainant suffered the injury intentionally which can be termed as suicidal under the influence of excessive intake of liquor. Under the facts and circumstances of the present case, a presumption arises which has weight of affirmative evidence that the death was accidental death and not a suicide or under the influence of intake of excessive liquor. In view of the overwhelming evidence in favour of the accidental death the burden was upon the Insurance Company to establish that the death of the insured was due to other reasons i.e. either suicide or under the influence of heavy intake of liquor. No evidence has been presented in this regard by opposite parties Nos.3 and 4 much less the evidence inconsistent with the conclusion of death that it was accidental. Rather opposite parties Nos.3 and 4 have failed to prove the case that the claim of the complainant falls under the exception clause. It is a case of unrebutted evidence on record. Accordingly this question is answered in favour of the complainant in the above terms. We hold that the findings recorded First Appeal No.348 of 2017 14 by the District Forum are erroneous and there is basic error in appreciating the factual aspect. Resultantly the same are reversed. In Re: Question No.(ii):
17. We have already discussed in detail and have come to the conclusion that it was an accidental death. Before deciding this question it would be appropriate to reproduce the relevant clauses on the basis of which the claim has been repudiated by opposite parties Nos.3 and 4 and the same read as under:-
" The claim was lodged for death of Pushpinderpal due to gun-shot by himself in his chest while cleaning of his revolver.
The police report confirms that the deceased was under
influence of liquor at the time of incident.
We bring to your attention of Special Exceptions 3(b) clause of the policy attached to policy schedule issued you that specifically excludes claim in respect of injury as a direct consequence of whilst under the influence of intoxicating liquor or drug."
So far as the grounds mentioned for repudiation of the claim are concerned, though have already been dealt with while answering question No.(i) in detail as far as the police report is concerned, however, so far as Special Exception Clause 3(b) is concerned, the same is also not applicable. We have already discussed in the foregoing paragraphs that there is no evidence with regard to the extent of intake of liquor and it does not lead us to a conclusion that due to heavy intake of liquor he had died and is excluded in view of clause 3(b) of the insurance policy. Rather this clause is not applicable in the facts and circumstances of the case, once we have First Appeal No.348 of 2017 15 already determined that it was an accidental death and was not the result of the heavy intake of liquor.
18. Accordingly this appeal is allowed and the impugned order is set aside. The complaint is allowed against opposite parties Nos.3 and 4 and dismissed against opposite parties Nos.1 and 2 as they are only intermediataries through which the insurance policies were obtained. Opposite parties Nos.3 and 4 are directed to pay the insured amount of ₹50,000/- under Policy No.51337323 and ₹1,00,000/- under Policy No.51291163, totaling ₹1,50,000/- along with interest at the rate of 9% per annum from the date of filing of the complaint till actual payment. Opposite parties Nos.3 and 4 are further directed to pay compensation of ₹25,000/- on account of harassment, pain and sufferings suffered by the complainant and ₹5,000/- as litigation expenses.
19. Opposite parties Nos.3 and 4 are directed to comply with the aforesaid order within a period of two months from the date of receipt of copy of this order failing which the compensation amount of ₹25,000/- shall also carry interest at the rate of 9% per annum from the date of this order till the date of actual payment.
20. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER September 01, 2017 Bansal First Appeal No.348 of 2017 16