State Consumer Disputes Redressal Commission
Mahavir Singh Hooda vs The Bajaj Allianz General Insurance ... on 4 July, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Appeal Case No. 187 of 2012 Date of institution: 30.05.2012 Date of decision : 4.07.2012 Mahavir Singh Hooda s/o Sh. Ranbir Singh, r/o H.No.1016, Sector 28, Panchkula. . Appellant Versus The Bajaj Allianz General Insurance Company Limited, SCO No. 139-140, 2nd Floor, Sector 8-C, Madhya Marg, Chandigarh, through its Manager. .. Respondent. Appeal U/S 15 of the Consumer Protection Act,1986 QUORUM : Justice Sham Sunder (Retd), President Mrs. Neena Sandhu, Member
Present: Sh.V.P.S. Namdev , Advocate for the appellant.
Per Justice Sham Sunder(Retd) , President This appeal is directed against the order dated 20.12.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it dismissed the complaint of the complainant (now appellant).
2. The facts, in brief, are that Hari Om (since deceased), brother of the complainant purchased a Policy from the Opposite Party on 29.10.2005, for a sum of Rs.6.00 lacs, wherein he (complainant) was made a nominee. On 7.9.2008, Hari Om was found lying dead, in the fields due to electric shock, suffered by him, from the live wires of tubewell. Thereafter, a claim was lodged by the complainant, with the Opposite Party. According to the complainant, he submitted all the relevant documents, to the Opposite Party, and made repeated requests and visits, but nothing was done. Ultimately, a legal notice was served upon the Opposite Party, but it failed to yield the desired result. It was further stated that the aforesaid act of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by him.
3. The Opposite Party, in its written version, while admitting the factual matrix of the case, stated that the complainant did not submit any document, in support of his assertion, that the deceased died due to an accident, caused by external visible and violent means. It was further stated that according to the terms and conditions of the policy, the complainant was to prove his claim by sufficient documentary evidence . It was further stated that the dead body of Hari Om was not subjected to postmortem examination. No report with the police was lodged regarding his death. On the other hand, his dead body was cremated. It was further stated that on receipt of intimation regarding death of the deceased, M/s Surya Claims Bureau Ltd. was appointed as Investigator, which in its report opined that there was no accidental death and, therefore, no claim was payable. Accordingly the claim of the complainant was repudiated vide letter dated 10.4.2009. It was denied that there was any deficiency, in rendering service, on the part of the Opposite Party. The remaining averments were denied, being wrong.
4. The parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum dismissed the complaint, on the ground, that the death of the insured was not an accidental death , and, as such the Opposite Party was well within its right to repudiate the claim.
6. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant.
7. Alongwith the appeal, an application for condonation of delay of 117 days, as per the applicant/appellant (121days as per the office report) in filing the same(appeal) was moved, by him, on the ground, that the impugned order was passed on 20.12.2011, certified copy whereof was prepared and despatched on 26.12.2011, which was received by the complainant on 2.1.2012. It was stated that the applicant/appellant had no knowledge that the appeal could be preferred, against the said order. Therefore, he kept mum, and did not file an appeal, as he was under the impression that the case had been finally decided. However, on 24.5.2012, the applicant/appellant came to Panchkula Court, to meet his Counsel in some other matter, who inquired of him regarding the filing of appeal. He then came to know that appeal could be filed, against the impugned order and, on coming to know, about the said fact, he engaged a Counsel for filing the same. It was further stated that there was no intentional or deliberate delay, on the part of the applicant/appellant, in filing the appeal. Accordingly, the prayer referred to, at the outset of this paragraph, was made.
8. We have heard the Counsel for the applicant/appellant , on the application for condonation of delay, and, in the main appeal, and have gone through the evidence, and record of the case, carefully.
9. First coming to the application for condonation delay of 117 days as per the applicant/appellant and (121 days as per the office report), in filing the appeal, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels ( India): 93 (2001) DLT 558, Delhi High Court held as under ;
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.
10. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under;
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.
11. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant has been able to establish that it was, on account of the circumstances, beyond his control, that he could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. The ground set up by the applicant/appellant, in the application, for condonation of delay, cannot be said to be bonafide as ignorance of law is no excuse. The complainant engaged the same Counsel for filing the complaint before the District Forum, who has filed the present appeal, before this Commission. After receipt of certified copy of the Order, he should have consulted his Counsel about the process to be followed for filing an appeal. The certified copy of the impugned order was received by the applicant/appellant on 2.1.2012. The applicant/appellant did not file the appeal within 30 days, from the date of receipt of a certified copy of the order.
Thus, the delay of 117 days,(as per the office report 121 days) in filing the appeal, was on account of the complete inaction and lack of bonafides, attributable to the applicant/appellant. The ground, set up by the applicant/appellant, regarding ignorance of law, did not constitute a sufficient cause for condoning the delay. The delay, in filing the appeal was, thus, intentional and deliberate. The applicant/appellant, therefore, failed to prove any sufficient cause, in filing the appeal, after such a delay of 117 days . Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 117days (as per the office report 121 days), cannot be condoned. The application is, thus, liable to be dismissed.
12. Now coming to the main appeal, it may be stated here, that there is, no dispute, that insured Hari Om died on 7.9.2008. Undisputedly, postmortem examination on his dead body was not got conducted, nor any report regarding his death was lodged with the police. The cause of death of Hari Om could only be proved, from the postmortem report. In the absence of postmortem report, one could act only on surmises and conjectures, as to under what circumstances death of Hari Om took place. Annexure-O1 is the document containing the terms, conditions, exclusions, and definitions of the Insurance Policy purchased by the deceased. Scope of cover mentioned under the terms, conditions, exclusions and definitions at page 69/19 of the District Forum file, reads as under ;
Death, loss of sight of both eyes, loss of both hands, loss of both feet, loss of one hand and one foot loss of one eye and one hand, loss of one eye and one foot, loss of one Limb or one eye, other total Permanent disablement of insured person resulting solely and directly from accident, caused by external visible and violent means, subject to terms, conditions, exclusions of Personal Accident Insurance.
13. From the afore-extracted scope of cover, as per the terms and conditions of the policy, if the death of the insured resulted solely and directly from the accident, caused by external visible and violent means, his nominee/heir could become entitled to the benefit, under the Insurance Policy. Condition No.(2) of the Policy at page 69 of the District Forum file reads as under ;
Proof satisfactory to the Company shall be furnished of all matters upon which a claim is based. Any medical or other agent of the Company shall be allowed to examine the person of the insured on the occasion of an alleged injury or disablement when and so often as the same may reasonably be required on behalf of the Company and in the event of death, to make a post-mortem examination of the body of the insured person and such evidence as the Company may from time to time require (including a post-mortem examination, if necessary) shall be furnished within the space of fourteen days after demand in writing and in the event of a claim in respect of loss of sight the insured person shall undergo at the insurers expense such operation or treatment as the Company may reasonable deem desirable. Provided that in the case of claim by death or permanent total disablement all sums payable only on the delivery of this Policy cancelled and discharged.
From condition No.2, extracted above, it is evident, that it was for the nominee or the heir of the deceased insured, to submit the documentary evidence regarding the proof of his death within the space of 14 days.
14. Annexure A4 is the claim form, which was submitted by the complainant to the Opposite Party. Against the column give a brief description of the accident it was mentioned that Hari Om was found dead in a ditch, dug for the tubewell, in the fields. There is no mention, in the claim form, that the death of Hari Om, took place, on account of his coming into contact with the live wire of the tubewell. Had the death of Hari om taken place, on account of accident, on his coming into contact, with the live wire, this fact would have been mentioned, in this document. This document, therefore, clearly proved that the death of Hari Om did not take place, on account of the accident, by means of external visible and violent means.
15. On receipt of claim form A4, an investigator was appointed by the Opposite Party, which submitted his report A5. After due investigation of the matter, he recorded his opinion and finding in report A5 at page 79 of the District Forum file as under ;
Since the insured had died his natural death in the farms when he had gone there to water the field no information of death was given to the police and hence even no hospitalization or post mortem was conducted as per the insured nominee brother Mr.Mahavir Singh from whom we have collected written statement.
The claim as such will have to be closed as no claim since the death has not occurred due to any accidental reasons in this claim matter.
The report of the investigator, is a very material document, and cannot be ignored without any rhyme or reason.
No cogent and convincing evidence was produced by the complainant, to rebut the report of the investigator.
16. Mahavir Singh Hooda , complainant, filed his affidavit. He was not present at the time of death of Hari Om in the fields and, therefore, he could not say as to how his death took place. The affidavit of Srikisan was also filed by the complainant, who stated that on hearing noise, he went to the fields of Hari Om and found that he had got electric shock and died. However, this very Srikisan had also signed, as a witness, on the claim form, submitted by the complainant on 7.2.2009, to the Opposite Party. Had the death of Hari Om taken place, on account of electric shock, he would have certainly got mentioned this fact in the claim form. It was not such an innocuous matter, which he could omit.
The affidavit of Srikisan, therefore, being contrary to the averments, contained in claim, form which came into existence, first in point of time, could not be relied upon. Another affidavit of Dr.Ram Kishan Bangru, who is a Registered Medical Practitioner, was placed on record. He stated in his affidavit that on 7.9.2008, Srikishan and Raj Kumar brought a person namely Hari Om, now deceased, to his clinic. He further stated that after clinically examining him, he declared him as brought dead as he was shocked by the electricity. A certificate issued by the Ayurvedic and Unani Medicine Board, Haryana, shows that he was not a qualified allopathic doctor. He, therefore, could not say, as to whether, Hari Om died on account of electric shock. All these affidavits, therefore, were rightly not relied upon by the District Forum, as they could not be said to be sufficient to prove that the death of Hari Om took place on account of the accident by way of external visible and violent means-. The death of Hari Om, in this case, therefore, could be said to be a natural death, which was not covered under the terms and conditions of the Policy. The repudiation of claim of the complainant was, thus, rightly made by the Opposite party. There was, therefore, no deficiency in rendering service, on the part of the Opposite Party/respondent.
17. No other point, was urged by the Counsel for the appellant.
18. For the reasons recorded above, the application for condonation of delay is dismissed. Consequently, the appeal is also dismissed, being barred by time, as also on merits, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to the Record Room, after compliance.
Announced (JUSTICE SHAM SUNDER) July 4,2012 President ( NEENA SANDHU) Member *Js