State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Neelam Rani on 29 May, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.2081 of 2010.
Date of Institution: 08.12.2010.
Date of Decision: 29.05.2014.
The Oriental Insurance Company Limited, Branch Office at Amolak
Bhawan, G.T. Road, opp. Sub Jail, near Post Office Katcheri, Moga,
through its Authorized Signatory, Regional Office, SCO No.109-111,
Sector 17-D, Chandigarh.
.....Appellant/Opposite Party.
Versus
Neelam Rani, aged 48 years, W/o Sh. Krishan Kumar S/o Sh. Kundan
Lal, Resident of Street No.5, Patti Malloki, Moga, Tehsil and District
Moga.
...Respondent/Complainant.
First Appeal against the order dated
13.10.2010 passed by the District
Consumer Disputes Redressal Forum,
Moga.
Before:-
Shri Baldev Singh Sekhon, Presiding Member.
Shri Jasbir Singh Gill, Member.
...................................
Present
For the appellant : Sh. Rahul Sharma, Advocate.
For the respondent : Sh. Ashish Gupta, Advocate.
BALDEV SINGH SEKHON, PRESIDING MEMBER:-
This appeal has been filed by the appellant/opposite party against the order dated 13.10.2010 passed by the learned District Consumer Disputes Redressal Forum, Moga (in short, "the District Forum), vide which the complaint filed by the respondent/complainant First Appeal No.2081 of 2010 2 was partly accepted and the insurance company was directed to pay Rs.5 lacs i.e. the insured amount to the complainant within one month from the date of receipt of copy of the order. They were further directed to pay Rs.3,000/- as compensation for causing mental tension and harassment to the complainant, besides payment of litigation expenses.
2. Briefly stated, the facts of the case are that Sh. Vikas, unmarried son of the complainant, was insured with the opposite party vide policy No.233904/48/08/00699 that was valid for the period 16.01.2008 to 15.01.2009. He met with an accident on 22.07.2008 with a stray cow near Joginder Singh Chowk, Moga while driving a motor cycle and was admitted in DMC & Hospital, Ludhiana. His condition was serious where he ultimately died on 24.07.2008. The postmortem of the deceased was conducted on 25.07.2008 at Ludhiana. As per Chemical Examination report No.2953 dated 24.09.2008, no poison was detected in the contents of Exhibit 1, 2, 3, 4 and 5. The complainant and her husband informed the opposite party regarding the accident and requested them to make payment of Rs.5 lacs of insurance amount, but they, vide letter dated 25/30.11.2009, rejected the claim on a false ground by leveling the allegations that at the time of accident, the deceased was under the influence of intoxicant liquour. These allegations were totally wrong and far away from the truth. Alleging that the opposite party has wrongly repudiated the claim, she filed complaint before the District Forum, seeking directions to the opposite parties to pay Rs.5.00 lacs as insurance claim along with interest. Costs and compensation were also prayed.
3. Upon notice, the opposite party appeared and filed written reply, taking preliminary objections that the complaint was not First Appeal No.2081 of 2010 3 maintainable. The complaint was absolutely false and frivolous and had been filed only to blackmail and harass the opposite party. In fact, there was no deficiency in service on their part, as the claim was promptly attended to, but the same was found not payable according to the opinion of the panel Dr. Tarsem Lal. It was pleaded that the claim fell under the Exclusion Clause-15 of the Personal Accident Insurance Policy, so the opposite party was not liable to pay any claim. It was further pleaded that the deceased life assured (in short, "the DLA") Sh. Vikas died on 24.07.2008 in DMC & Hospital, Ludhiana and according to Death Summary issued by said hospital, DLA was addicted to Fancy Cough Syrup. Investigation report by M/s CALYX Enterprises, Ludhiana had also concluded that in view of the facts, it had been confirmed during the investigation that DLA was under the influence of intoxicants and as per Personal Accident Policy, the risk was not covered within the scope of the insurance policy. Thus, the claim of the complainant was rightly repudiated. Denying all other allegations, dismissal of the complaint was prayed.
4. Parties led their evidence in support of their respective contentions by way of affidavits and documents and the District Forum after going the same as well as after hearing counsel for the parties, partly allowed the complaint, in aforesaid terms.
5. Aggrieved by this order, the appellant/opposite party has come up in the present appeal, on the ground that the District Forum has erred by holding that the report of the doctors, appointed by the insurance company i.e. Dr. S.P. Aggarwal and Dr. Tarsem Lal Gupta, were not corroborated by any evidence. The report of Dr. S.P. Aggarwal was totally based on the diagnosis of the patient at DMC & First Appeal No.2081 of 2010 4 Hospital, Ludhiana, wherein it has been specifically mentioned that the records of the patient revealed that the patient was under the effect of intoxication (Fancy Cough Syrup) and he died of high grade fever of 1070F at the time of admission. Acceptance of appeal and setting aside of impugned order was prayed.
6. We have thoroughly gone through the pleadings of the appeal and have perused the record of the learned District Forum as well as heard the learned counsel for parties.
7. Admittedly, Sh. Vikas, DLA met with a roadside accident on 22.07.2008 and he was taken to DMC & Hospital, Ludhiana as his condition was serious, where he ultimately died on 24.07.2008. The opposite party proved on record the death summary of DLA as Ex.R-5 in which under the column "History of the present Illness", it was mentioned as under:-
"The patient was having fever 1070F, addict to Fancy Cough Syrup. History of roadside accident when patient was going on a motorcycle with high temperature and under the influence of cough syrup, he fell down."
8. The opposite party obtained the opinion of Dr. S.P. Aggarwal (Ex.R-2) and Dr. Tarsem Lal Gupta (Ex.R-3). In his report Dr. S.P. Aggarwal opined that the history of the patient in DMC & Hospital record revealed that patient was under the effect of intoxication i.e. Fancy Cough Syrup with high grade fever of 1070F at the time of admission, but postmortem examination done on 24.07.2008 did not show any occurrence of changes in the internal organs due to Fancy Cough Syrup which he took on the day of accident i.e. on 22.07.2008. First Appeal No.2081 of 2010 5 The Chemical Analysis of the organs also did not reveal any changes in the organs due to Fancy Cough Syrup. The absence of any change in the internal organ was due to the fact that it was excreted in the urine within 24 hours. He advised that the claim be settled in accordance with the history of the patient. Similarly, Dr. Tarsem Lal Gupta in his report (Ex.R-3) also opined that from the death summary and other documents, it was clear that the DLA was a case of substance abuse of Fancy Cough Syrup poisoning, Hyperpyrexia and he opined that the claim did not fall within the purview of Personal Accident Policy. An inquiry was also got conducted from M/s Calyx Enterprises whose report is proved as Ex.R-7, in which also it was concluded that the DLA was under the influence of intoxication. As per Personal Accident Policy, the risk was not covered within the scope of the insurance policy. The District Forum has allowed the complaint on the ground that in the Chemical Analysis Report, no traces of alcoholic substance were found. Evidently, DLA met with an accident on 22.07.2008 and he expired on 24.07.2008 at 7.00 P.M. Thus, he remained admitted in the hospital for about 48 hours and postmortem was conducted on 25.07.2008 at 3.20 P.M. Thus, the effects of the DLA being under the effect of intoxication, if any, might have been excreted through urine.But it has to be proved independently that DLA was under the influence of any such intoxicant.
9. The reports of Dr. S.P. Aggarwal and Dr. Tarsem Lal Gupta (Ex.R-3) and (Ex.R-4) are primarily based on the alleged statements of neighbourers, who stated that DLA was addicted to Fancy Cough Syrup. Neither their statements have been produced on record nor any affidavits to that effect have been filed by these doctors. First Appeal No.2081 of 2010 6 Similarly, the report of investigator (Ex.R-7) is based on hearsay evidence and is not supported by direct affidavit. Even if these reports are believed, the only fact that is established is that DLA was an addict to cough syrup. But there is no reliable/cogent evidence on record to establish the fact that DLA was actually under the effect of any such intoxicant at the time of accident. The DDR (Ex.A-8), PMR (Ex.A-6) and Chemical Examiner's Report (Ex.A-4) do not indicate that DLA was under the influence of any intoxicant at the time of accident. Although, it is true that traces of intoxicants, if any, are excreted through urine in 24 hours, but in the absence of conclusive evidence contrary cannot be assumed. In the death summary (Ex.R-5), it is mentioned only under the "History of previous illness" that DLA was reportedly a drug addict but it does not confirm that he was actually under any such influence when DLA was brought to hospital. The claim of the complainant cannot be rejected, merely on the basis of presumptions. The order passed by the District Forum is legal and valid and there is no ground to interfere with the same.
10. In view of above discussion, the appeal is dismissed and the impugned order is affirmed and upheld. No order as to costs.
11. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the District Forum and to the appellant.
First Appeal No.2081 of 2010 7
12. Remaining amount as per order of the District Forum shall be paid by the appellant to the respondent/complainant within 45 days of receipt of copy of the order.
13. Arguments in this appeal were heard con 15.05.2014 and the order was reserved. Now the same be communicated to the parties.
14. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Baldev Singh Sekhon) Presiding Member (Jasbir Singh Gill) Member May 29, 2014.
(Gurmeet S)