State Consumer Disputes Redressal Commission
Mrs Madhumita Bose vs The Manager on 24 December, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11A, MIRZA GHALIB STREET, KOLKATA-700 087. S.C. CASE NO- CC/95/12 DATE OF FILING: 03.07.12 DATE OF FINAL ORDER: 24.12.13 COMPLAINANT : 1. Mrs. Madhumita Bose, Wife of Mr. Sandip Bose, of 51, Akhil Mistri Lane, Kolkata- 700 009 OPPOSITE PARTIES : 1. The Manager, Retail PA Claims Team, HDFC Ergo General Insurance Company Limited, Of 6th Floor, Leela Business Park, Andheri Kurla Road, Andheri (East), Mumbai- 400 059. 2. HDFC Ergo General Insurance Company Limited, Having local Branch Office at 1, Ho Chi Minh Sarani, Metro Towers 10th Floor, Kolkata- 700 071. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE COMPLAINANT : Mr. Ved Sharma, Ld. Advocate. FOR THE OPPOSITE PARTIES : Mr. N.R. Mukherjee, Ld. Advocate. _____________________________________________________________________________ : O R D E R :
MR. J.BAG, LD. MEMBER The present complaint , briefly stated, is as follows:
The Complainants mother Sucheta Bose had obtained an Accident Protection Plan-HC Policy No. (50551645/00001) from the OP insurance company with the coverage up to Rs. 25,50,000/- . The policy was valid from 04.01.2011 to 03.01.2012. The said Sucheta Bose met with an accident on 05.05.2011 and was admitted in Medical College and Hospital with injury at the back side of her head. She was shifted from Medical College and Hospital to Saviour Clinic and then to SVS Marwari Hospital for better treatment . FIR was lodged vide No. 216 dt 06.05.2011 on the basis of GDE No. 787 dated 06.05.2011 . Unfortunately, the insured died on 16.05.2011 at the SVS Marwari Hospital. Post-mortem report was obtained on 04.09.2011. The OPs were informed of the death of the insured . The Complainant, being the nominee and beneficiary of the insured, submitted claim form with necessary documents .
There were several e-mail correspondences between the Complainant and the OP during 29.09.2011-30.03.2012. The Complainant sent an Advocates notice dated 03.04.2012 urging upon the OP to settle the claim without further delay . The OPs vide their letter dated 21.05.2012 intimated that the claim did not fall within the policy coverage as the death did not occur as a result of accidental injuries. By that time, the Claims Settlements Commissioner and Director, Public Vehicles Department , Kolkata , passed an order for payment of a sum of Rs. 25,000/- for the accidental death of Sucheta Bose. The complainant approached the Insurance Ombudsman who regretted by their letter dated 11.06.2012 their inability to admit the complaint on the ground that the total compensation claim being worth Rs.25,00,000/- was beyond the financial limit of the said Insurance Ombudsman . Having no other alternative, the Complainant has brought up her petition with prayer for direction upon the OPs to make payment of Rs.25,00,000/- along with interest @ 18% p.a from the date of filing the claim till payment along with compensation of Rs. 10,00,000/- for harassment and mental agony and cost of litigation to the tune of Rs. 50,000/-.
The complaint is contested by filing of written version by OP Nos.2, i.e., HDFC Ergo General Insurance Co. Ltd. contending, inter alia , that though it is a fact that the insured had obtained an insurance policy covering the risk of accidental death and though the insured expired on 16.05.2011 , no external grievous injuries being noted in respect of the deceased person either in the treatment case papers or at the time of conducting the Post Mortem , the death was not accepted to have occurred on account of accidental injuries. It has also been contended that treatment documents not being produced by the Complainant , the allegation of death due to accident could not be proved conclusively by the Post Mortem report or any other document. They have denied any deficiency or negligence on their part and prayed for dismissal of the complaint.
The points framed for determination are
1. Is the Complainant a consumer ?
2. Is there any deficiency on the part of the service provider insurance company in regard to the settlement of the claim raised by the Complainant / Consumer ?
3. Is the Complainant entitled to such relief as prayed for in the petition of complaint.?
Decision with reasons Point No. 1 The Complainant purchased the insurance service for consideration by way of payment of premium and accordingly there is a relationship of service provider and consumer between the two parties . As such , the Complainant is a consumer u/s 2/(1)
(d) of the Consumer Protection Act,1986.
Point Nos.
2 & 3 Regarding the other two points framed, we consider that it would be convenient for better comprehension of the facts and evidence , if the said two points are discussed together.
We have gone through the petition of complaint along with enclosures thereto , evidence on affidavit filed by the petitioner, replies filed by the petitioner in response to the questions raised on behalf of the OP insurance company, copy of the Accident Protection Plan Policy, evidence on behalf of the OP No. 2 and replies furnished by OP No. 2 to the questions raised by the complainant . Brief notes of arguments have been filed by the Complainant as well as by the OP No. 2.
Case laws submitted on behalf of the Complainant are as follows:
1.
2006 (5) Supreme 327 Jyothi Ademma Appellant vs- Plant Engineers , Nellore and Anr- Respondents.
2. 2000 (3) Supreme 698 Smt Rita Devi and Ors- Appellants vs- New India Assurance Company Ltd and Anr- Respondents.
3. 2000 (8) Supreme 521 Life Insurance Corporation of India and Ors . Appellants Vs Smt. Asha Goel and Anr Respondents.
4. Case law as reported in AIR (SCW) 1867 Shivaji Dayanu Patil and Anr. Petitioners vs. Smt. Vatschala Uttam More Respondent.
The following case laws have been filed on behalf of the OP:
1.
SC Case No. FA/593/ 2010 of the State Consumer Disputes Redressal Commission , W.B.
2. Case No. Civil Appeal No. 6277 of 2004 decided on 24.09.2004 by Honble Supreme Court of India
3. FA No. 763 of 2007 of Honble National Consumer Disputes Redressal Commission.
4. Case law as reported in AIR 1994 Supreme Court 853
5. Case law as reported in 2008 (4) CPR , 61 (NC)
6. Case law as reported in 1999 (7) Supreme Court 195
7. FA No. 173/1991 as decided by Honble NCDRC,
8. RP No. 1081 of 2008 decided by Honble NCDRC and the
9. Case law as reported in 2008 (2) CPR 232 (NC) Ld. Advocates appearing for the Complainant and the OPs have been heard.
Ld. Advocate appearing for the Complainant submitted that the insured suffered head injury in an accident while the policy in question was valid. Upon submission of the insurance claim, the OPs asked for several documents which were furnished without fail, i.e., Police FIR , Post Mortem report , Police charge-sheet etc . The Post Mortem report described the cause of death as cerebral Odema which is sort of internal brain haemorrhage . The Government Department, i.e., Claims Settlement Commissioner and Director, Public Vehicles Department, Kolkata , accepted the fact of hit and run and accidental death and granted compensation of Rs. 25,000/-. The reason of death was the accidental injury and the insurance company never disagreed in their written version that the insured expired because of the accidental injury. It has been argued that there was clear deficiency in service on the part of the OP and more so because of the fact that though the cause of death was not described other wise, the OP insurance company arbitrarily repudiated the insurance claim. It is a case of accidental death and the judgment as reported in AIR Supreme Court 2003 Supreme 698 was delivered by the Honble Apex Court , is a pointer to the fact that the injury caused by accident was the cause of death in respect of the person covered by the insurance policy. Citing the judgment of the Honble Apex Court as reported in 2000(8) Supreme 521 , it was argued that in the matter of repudiation of a policy , the insurance company should be extremely careful and cautious. The claim should not be dealt with in a mechanical and routine manner . The insurance company in the present case has in a very mechanical and routine manner repudiated the claim which shows deficiency in service on the part of the insurance company. Death by accident in the present case has been established from every angle.
Ld. Advocate appearing for the OPs submitted that the insured took an insurance policy and during the subsistence of such insurance policy covering accidental death , the insured met with an accident by a fall from a bus allegedly having sustained head injury . She was taken home and then to Medical College and Hospital but there was no bleeding or stitch. Whether she was treated continuously at Saviour Clinic from 06.05.2011 to 12.05.11 has not been known. From record, it appears that she was admitted in SVS Marwari Hospital on 13.05.2011 and expired on 16.05.2011 . The insured was alive for 11 days after the alleged incident and underwent medical treatment either at home or in hospitals. The medical records like admission sheet, bed head ticket , discharge sheet , pathological reports being seized by the police could not be produced . Nor was the Police investigation report submitted. The Post Mortem Report showed that externally no injury mark could be detected. It was pointed out that the insured did not die immediately after the accident and as such the death was not instantaneous . Moreover, the CT Scan report taken out on the date of the accident shows no internal damage at all. The Post Mortem Report indicates multiple end organ failure and damage. Whether there was any treatment for head injury (external or internal ) or whether she was treated for other ailments which she might have been suffering for quite some time , and whether such ailment was the ultimate and actual cause of death were not made known . In the absence of entire medical treatment record and the Police investigation report, there was no conclusive proof to establish that the death was caused by head injury as claimed by the Complainant. The author / doctor of the post mortem report was not produced for cross-examination and as such the report can not be relied upon. In fact, the insured was suffering from epilepsy and was treated for that in SVS Marwari Hospital and there she expired suddenly chocking while she was eating . This fact has been narrated in the investigation report as submitted by the Investigator . The insurance companys stand is justified in denying any deficiency in service and also in repudiating the claim raised by the Complainant . Citing the case laws as mentioned here-in-before , Ld. Advocate submitted that the terms of contract between the insurer and the insured have to be relied upon , nothing can be added or altered to suit the purpose of either of the contracting parties . In this case , the Complainant could not furnish any proof that the death of the insured was solely because of the alleged accident and independently of any other cause. Hence, the complaint does not stand and deserves to be dismissed.
There is no dispute that the Complainant obtained an Accidental Protection Plan / HC policy from the OPs. which was valid between 24.01.2011 and 03.01.2012 with the coverage up to Rs. 25,50,000/- upon payment of premium of Rs. 4,798/- . There is also no dispute that the insured Sucheta Bose being the mother of the Complainant met with an accident by fall from a bus which was reported to the Police .The insured having died on 16.05.2011 the OPs were informed of the accidental death . Claim was lodged and as per requirement of the OPs, necessary documents were submitted . The claim not being settled over a period of 10 months , Advocates notice was issued on 03.04.2012. The OPs vide their letter 20.04.2012 (Paragraph
3) stated that all the medical treatment papers inclusive of discharge summary of hospitals wherein deceased had undergone for medical treatment were not received and finally the OPs in their letter dated 21.05.2012 repudiated the claim of the Petitioner that in the absence of treatment documents in support of accidental injuries , the claim was found to have not fallen within the policy coverage. From a careful perusal of the vital documents, namely, FIR, Postmortem report, injury report (Police Case) noted on 05.05.2011 at 18.55 by Medical College and Hospital , it appears that the term Head Injury has been used but in none of those documents the description of the head injury was given in any manner. How fatal was the injury and whether such injury was so grievous as to cause the death of the insured were not made clear with convincing evidence . Moreover, what remedial measures were taken by the concerned doctor / hospital for treating the injury was not available or understood from the said documents. In this connection , the CT Scan report is very clear that there was no injury or haemorrhage . Such CT Scan report was made immediately after the accident and such report is very important in deciding the present case.
It appears that in deciding the FA No. 763 of 2007 Honble National Commission not being shown the entire medical record of the treatment of the deceased insured sent back the case to the State Commission for fresh adjudication on the basis of production of entire medical record. In their order in Civil Appeal No. 994 of 1972 , D/-27-10-1993, Honble Apex Court held that withholding of vital document relevant to litigation is a fraud on court. It appears that the Complainant has not come in clear hands about the treatment of the insured while in hospital or at home during the period from 06.05.2011 to 13.05.2011. It was on 13.05.11 that the insured was admitted in SVS Marwari Hospital and the insured expired on 16.05.2011. The medical officer of SVS Marwari Hospital on duty in his report dated 16.05.2011 mentioned that the patient expired at 4.35 hours . No specific cause of death of the insured was recorded therein. It was at a much later date, i.e., on 04.06.11 that it was certified by the SVS Marwari Hospital authority that the cause of death of the insured was cardio respiratory failure in a case of (Post) head injury .
The Complainants averment that payment of compensation by the Claims Settlement Commissioner on the ground of death of the insured does not establish the fact that the death of the insured was solely by the accident and independently of other cause as laid down in the policy terms . We are unable to go by the submission put forward on behalf of the Complainant. In the said circumstances we are of the considered view that the complaint has no merit and is liable to be dismissed.
Hence, Ordered that the complaint be and the same is dismissed on contest . There shall be no order as to costs. The M.A. application No. 282/2013 stands disposed of accordingly.
Sri Jagannath Bag Sri Debasis Bhattacharya (Member) (Member)