State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd. vs Smt.Radha Bai Kanvar & Anr. on 7 September, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/402
Instituted on : 23.06.2018
The Oriental Insurance Company Limited,
Through : The Divisional Manager,
The Oriental Insurance Company Limited, Bilaspur,
Rama Trade Center, Opposite Rajiv Plaza,
Old Bus Stand,
Bilaspur (C.G.) .... Appellant (O.P. No.4)
Vs.
1. Smt. Radha Bai Kanwar, W/o Late Shyam Lal Kanwar,
Caste - Kanwar, Aged about 41 years,
R/o : Dhelwadih S.E.C.L. Quarter No.A/40, Block 394,
P.O. Dhelwadih, P.S. & Tehsil - Katghora,
District Korba (C.G.) .... Respondent No.1 (Complainant)
2. Manager, S.E.C.L. Dhelwadih,
P.S. and Tehsil Katghora, Dist. Korba (C.G.). ... Respondent No.2 (O.P. No.1)
3. General Manager, S.E.C.L. Korba (C.G.)
Head Office : Korba Colliery,
Tehsil and District Korba (C.G.) .... Respondent No.3 (O.P. No.2)
4. C.M.D., S.E.C.L.
Seepat Road,
Bilaspur (C.G.) ..... Respondent No.4 (O.P.No.3)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Amit Buxy, Advocate for the appellant (O.P. No.4).
Shri B.R. Banjare, Advocate for the respondent No.1 (complainant).
Shri O.P. Agrawal, Advocate for the respondent No.2 to 4 (O.P. No.1 to O.P.
No.3).
ORDER
DATED : 07/SEPTEMBER/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 23.03.2018, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth // 2 // "District Forum") in Complaint Case No.CC/67/2009. By the impugned order, learned District Forum, has allowed the complaint of the complainant and directed that :-
(1) The O.P. No.4 (Insurance Company) will pay a sum of 5,00,000/-
(Rupees Five Lakhs), which is insurance claim amount, to the complainant within period of one month from the date of the order. (2) The O.P. No.4 (Insurance Company) will pay a sum of Rs.2,000/- (Rupees Two Thousand) towards cost of litigation, to the complainant.
2. Briefly stated the facts of the complaint of the complainant are that, the husband of the complainant, Shyamlal Kanwar was working in the colliery under O.P. No.1, which was operated under the instructions of the O.P. No2 and is company operated under O.P. No.3. The O.P. No.1 and O.P. No.2 are operated under O.P. No.3. The O.P. No.4 is The Oriental Insurance Company, which is having Branch Office at Bilaspur and doing business of insurance. An agreement was executed between the O.P. No.3 and O.P. No.4 in which O.P. No.1 & 2 were also included. A Group Janta Personal Accident Insurance Policy was obtained by the S.E.C.L. In the list of the employees, from the salary of whom, the premium was deducted, the name of Late Shyamlal Kanwar was also included. The premium amount was deducted from the salary of husband of the complainant, on the instructions of the O.P. No.1. The premium was deposited in the office of O.P. No.4 through O.P. No.2 & 3 and Group Janta Personal Accident Insurance Policy was obtained. The above insurance policy is in possession of O.P. No.2. The husband of the complainant was not // 3 // provided any insurance policy. The husband of the complainant Shyamlal Kanwar was posted as Mechanic in Dhelwadih Colliery and he died in the road accident on 02.10.2004 near Jawali turning, Dhelwadih. The complainant immediately gave intimation regarding the death of her husband in the office of O.P. No.1, but the O.P. No.1 did not take any action, therefore, the complainant several times orally and in writing requested the O.P. No.1 for payment of the amount from the Insurance Company. The oral intimation was given by the office of O.P. No.1 that for taking action, the application was sent to the office of The Oriental Insurance Company Limited. The Insurance Company has not made payment of the sum assured under the policy to the complainant till date. The complainant again sent application along with documents on 26.02.2008 to the office of O.P. No.4. The O.P. No.4 orally gave information to the complainant that the Group Janta Personal Accident Insurance Policy in question was cancelled by the O.P. The O.P. No.4 has not given any intimation or any reply in writing, till date. The consent letter for becoming member of Group Janta Personal Accident Insurance Policy was filled up by the husband of the complainant in the office of O.P. No.1 and the premium amount was deducted from the salary of the deceased inured and the same was deposited in the office of the O.P. After insurance, the husband of the complainant was informed by the O.P. No.1 regarding insurance policy. For the first time after death of husband of the complainant, on 26.02.2008, the O.P. No.4 orally informed regarding the cancellation of insurance policy to the complainant. During the lifetime, the husband of the complainant became member of the Group Janta Personal Accident Insurance Policy and obtained Group Janta Personal Accident Insurance Policy through O.P. No.1, O. P. No.2 and O.P. // 4 // No.3 from the O.P. No.4. Under the above insurance policy, in case of death of the insured, a sum of Rs.5,00,000/- was required to be paid by the Insurance Company. In the insurance policy the complainant herself was insured and was nominees, but after death of her husband, the O.P. No.4 did not pay the sum assured to her. The OPs have committed deficiency in service. Hence the complainant has filed the instant consumer complaint before the District Forum and prayed for granting compensation, as mentioned in the complaint.
3. The O.P.No.1 to O.P. No.3 have filed their written statement before the District Forum and averred that the O.P. No. 1 to 3 South Eastern Coal Field Ltd. is a registered Company under Companies Act. The O.P. No.1 to 3 have assisted for purchasing Group Janta Personal Accident Policy for their employees, therefore, there is no responsibility of the O.P.No.1 to O.P. No.3. The O.P. No.1 to O.P. No.3 are not doing business of insurance and the O.P. No.1 to 3 have not taken any commission or earned profit from O.P. No.4. The O.P. No.1 to 3 have also not worked as representative or agent of the O.P.No.4 and also did not take any amount for this purpose from the deceased, therefore, the O.P. No.1 to 3 are not a necessary party. The O.P. No.1 to 3 have further averred that after receiving the amount of premium, the Insurance Company issued Group Janta Personal Accident Policy No.47/2000/000257 in respect of each employees. The terms and conditions of the insurance policy are binding on the Insurance Company. After death of the insured, the Insurance Company, cannot take any contrary averment to escape from it's liability to pay the claim amount. The dispute is between the complainant and the Insurance Company. The complainant did not send notice to the O.P. No.1 // 5 // to 3 before filing the complaint. The Insurance Company has no right to cancel the insurance policy unilaterally. The Insurance Company did not comply the terms and conditions of the insurance policy. The O.P. No.4 issued the Group Janta Personal Accident Insurance Policy in favour of the employees of S.E.C.L. and the Insurance Company, is binding by its terms and conditions. The Insurance Company without complying with the above terms and conditions, gave intimation regarding cancellation of insurance policy, to the S.E.C.L. As the Insurance Company has not complied with the condition contained in the Memorandum of Understanding executed with representatives of the Labours and S.E.C.L., therefore, the Insurance Company has no right to cancel the insurance policy unilaterally. The S.E.C.L. filed Writ Petition No.327/2002 before Hon'ble High Court of Chhattisgarh, which is under consideration. The Insurance Company after vacating the stay order, sent the cheque for the balance premium amount, which was returned by the O.P. No.2 to the Insurance Company. The insurance policy cannot be cancelled by the Insurance Company ignoring the terms and conditions of the Memorandum of Understanding. The Insurance Company did not comply with the terms and conditions of the Group Janta Personal Accident Insurance Policy. The Insurance Company has issued the Insurance Policy. The O.P. No.1 to 3 has assisted for purchasing Group Janta Personal Accident Policy for its employees. The O.P. No.1 has not committed any deficiency in service. False allegations were made against the O.P. No.1 to 3. If the deceased Shyamlal Kanwar was insured under Group Janta Personal Accident Insurance Policy, then the insurance policy would have been provided by the Insurance Company to him. In this regard the responsibility is of the insured // 6 // person and of Insurance Company. Actually, the complainant is required to obtain claim form from the O.P. No.1 and was required to submit the same. There is no responsibility of the O.P. No.1 in respect of the concerned insurance policy. The complainant has unnecessarily made O.P. No.1 to 3 as party. The complaint is liable to be dismissed with cost.
4. The O.P. No.4 (Insurance Company) filed its written statement and averred that the complainant had not submitted the claim form within 15 day before the Insurance Company, which is prescribed in the insurance policy. The complainant has not tried to filled up claim form and did not submit the claim form along with document by personally appearing before the Insurance Company, for obtaining claim amount within the time limit. The death of the husband of the complainant occurred on 02.10.2004, whereas the complainant submitted claim form on 25.05.2009 after lapse of 4 ½ years. The complainant violated the terms and conditions of the insurance policy. The Insurance Company had cancelled the insurance policy , which was issued by it, on 08.03.2002, thereafter, the Insurance Company is not liable to pay the sum assured the insured. The husband of the complainant died after 08.03.2002, therefore, the complaint filed by the complainant, is not maintainable. The complainant submitted the claim form before the Insurance Company very belatedly. Along with claim form, the complainant had not submitted application for condonation of delay in filing application, and ha d filed complaint before the District Forum. The complainant had not filed the claim before the Insurance Company in the prescribed time. At the time of accident, the deceased Shyam Lal had consumed liquor in excessive quantity, therefore, // 7 // the accident was occurred. From the post mortem of the deceased insured, it is clear that the deceased insured had consumed liquor. In the insurance policy, it is clearly mentioned that if the death of the insured is died to consumption of the liquor, then for such death, the Insurance Company is not liable to pay any compensation. The complaint is liable to be dismissed.
5. The complainant has filed documents. Document No.01 is photocopy of First Information Report (Under Section 154 Cr. P.C.), document No.02 is Final Report under Section 173 Cr. P.C.), document No.03 is akal evam akasmik mrityu ki suchna panji, document No.4 is inquest report, document No.05 is application for postmortem of the dead body, document No.06 is post mortem examination report, document No.07 is death certificate of Shyam Lal issued by Registrar (Birth-Death), document No.08 is copy of service book, document No.9 & 10 are pay slips, document No.11 is letter dated 26.12.2008 sent by the complainant to the Divisional Manager, The Oriental Insurance Co. Ltd. Bilaspur (C.G.), document No.12 is Memorandum of Understanding , document No.13 is Group Janta Personal Accident Policy, letter sent by the complainant to the Deputy General Manager, South Eastern Coal Fields Lt., Dhelwadih, Korba (C.G.), letter dated 26.12.2008 sent by the complainant to the Divisional Manager, The Oriental Insurance Co. Ltd. Bilaspur, letter dated 26.08.2009 sent by the Insurance Company to Shri B.R. Banjare, Advocate, letter dated 08.09.2009 sent by Shri B.R. Banjare, Advocate to the Divisional Manager, The Oriental Insurance Company Ltd. Bilaspur, letter dated 01.01.2011 sent by the S.E.C.L. to the complainant, letter dated 27.12.2010 sent by Manager (P) DSB Sub Area to Public Information Officer, S.E.C.L. Korba Area, pay slips.
// 8 //
6. The O.P. No.4 has filed documents. The documents are Group Janta Personal Accident Insurance Policy, Investigation Report dated 03.11.2009 of Shri R.B. Sahu, Investigator submitted to the Divisional Manager, The Oriental Insurance Company Limited, letter dated 20.09.2012 sent by the Divisional Manger of Oriental Insurance Co. Ltd. to the complainant, postal receipt, photocopy of inward / outward register of the Insurance Company.
7. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint of the complainant and directed the O.P. No.4,. to pay the amounts to the complainant, as mentioned in para 1 of this order.
8. Shri Amit Buxy, learned counsel appearing for the appellant (O.P. No.4) has argued that in the instant case, the appellant (O.P. No.4) had already cancelled the insurance policy prior to death of the life assured Shyam Lal Kanwar. He further argued that the intimation regarding the death of the life assured was given belatedly to the O.P. No.1. The death of husband of the complainant namely Shyam Lal Kanward was occurred on 02.10.2004, whereas the intimation regarding his death was given to the O.P. N.,4 on 25.05.2009 i.e. after 4 ½ years, therefore, the complaint of the complainant, is barred by time. At the time of incident, the life assured Shyam Lal Kanwar had consumed liquor and he was under condition of intoxication, which is fundamental breach of the terms and conditions of the insurance policy. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. The appeal filed by the appellant (O;P. No.4) may be allowed.
// 9 //
9. Shri B.R. Banjare, learned counsel appearing for the respondent No.1 (complainant) has argued that the husband of the complainant Shyam Lal Kanwar, was working in the Colliery under O.P. No.1. The O.P. No.1 obtained Group Janta Personal Accident Insurance Policy from the O.P. No.4 and Shyam Lal Kanwar was also insured under the above policy. The Insurance Policy was effective for the period from 16.10.1999 to 15.10.2009. The life assured Shyam Lal Kanwar died in a road accident on 02.10.2004. The intimation regarding death of Shyam Lal Kanwar was sent to the OPs and the complainant being the nominees of the deceased, submitted her claim before the O.P. No.4, but the O.P. No.1 did not settle the claim of the complainant and committed deficiency in service. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (O.P. No.1) is liable to be dismissed. Shri Banjare placed reliance on Appeal N.FA/15/549 - Smt. Seeta Bai Patel Vs. The Manager, S.E.C.L. Banki Colliery (Unit) & Others, decided by this Commission vide order dated 13.06.2016.
10. Shri O.P. Agrawal, learned counsel appearing for the respondent No.2 to 4 (O.P. No.1 to 3) has supported the impugned order.
11. We have heard the learned counsel appearing for both the parties and have also perused the record of the District Forum, as well as the impugned order passed by the District Forum.
12. The O.P. No.4 (Insurance Company) has pleaded that the O.P. No.4 (Insurance Company) had already terminated the insurance policy w.e.f.
// 10 // 08.03.2002 i.e. prior to the date of death of the life assured Shyam Lal Kanwar. The same was intimated by the O.P. No.4 (Insurance Company) to the S.E.C.L., therefore, the Life Assured was not insured with the O.P. No.4 at the time of his death. The complainant is not entitled to get any compensation from the O.P. No.4 under Group Janta Personal Accident Insurance Policy.
13. It is no doubt that the Insurance Company may at any time by notice in writing terminate the policy, but it is the duty of the Insurance Company that it shall return to the insured the then paid premium in respect of such person in respect of whom no claim has arisen. In the instant case, according to the complainant, the life assured Shyam Lal Kanwar, died on 02.10.2004. According to the O.P. No.4 (Insurance Company) the Insurance Policy was effective for the period from 16.10.1999 to 15.10.2009 and the same was cancelled w.e.f. 08.03.2002. It appears that the said policy was cancelled by the O.P. No.4 (Insurance Company) prior to the date of death of the life assured Shyam Lal Kanwar.
14. In New India Assurance Company Ltd. & Anr. vs. Manish Abhay Bedmutha & Anr., IV (2013) CPJ 303 (NC), Hon'ble National Commission observed thus:
"21. Learned counsel for the petitioner has given three citations of the National Commission :
In the case of Ashok Jain v. Oriental Insurance Co. Ltd., I (2012) CPJ 150 (NC), wherein this Commission has observed that "it is thus clear that in cancelling the insurance policy in question, the Insurance Company needed to write to "the insured" and not to "the insured person". Perusal of the certificate of insurance shows that the State Bank of India Officers Association, Chjandigarh Circle was recorded as the "insured", whereas Adesh Kumar Jain was recorded as "the insured person". In other words, for cancellation of the policy it was sufficient for the Insurance Company to send notice only to the "insured", viz., the // 11 // State Bank of India Officers Association, Chandigarh Circle. It is not in dispute that this was done by the Insurance Company. Hence, the contention of the learned Counsel for the petitioner is not valid and cannot be accepted."
In the case of Usha Sharma and Ors. V. New India Assurance Co. Ltd. And Ors., I (2012) CPJ 488 (NC), this Commission has held that "a perusal of the above condition would show that the Insurance Company was within the right to cancel the policy in question at any time provided the written notice are sent to the policy-holders and the balance premium for the unexpired/uncovered policy period is returned to the insured. In the present case, as per condition No.5 of the insurance policy, the policy in question was cancelled by the Insurance Company and intimation was sent to the policy holder by registered letter. Cheque of Rs.601 towards balance premium was also returned to the insured. Public notice of cancellation was also given through newspapers and it was enough notice to the respondent regarding cancellation of the policy. Since, the policy was cancelled during the life time of the insured and due intimation was given to him along with cheque of balance premium, the Insurance Company was not liable to indemnify the complainants. Even the Hon'ble Supreme Court in the case of United India Insurance Co. v. Harcharan Chand Rai Chandan Lal, IV (2004) CPJ 15 (SC) = V (2004) SLT 876 and National Insurance Company v. Laxmi Narain Dhut, III (2007) CPJ 13 (SC) = IV (2007) SLT 102, has held that the policy is a contract between the parties and both the parties are bound by terms of contract".
In the case of Nand Kumari and Ors. V. Oriental Insurance Co. Ltd., I (2012) CPJ 357 (NC), the National Commission has held that "it is not in dispute before us that the policy could be cancelled at any time by the insurer as averred by the respondent in paragraph Nos.4 and 5 of its written version. The insured died on 22.7.2006. Policy had been cancelled by the respondent on 26.11.2000 and an intimation to the effect was sent to the insured by a registered letter addressed to him at the address given by him in the proposal form for obtaining the said policy. Intimation regarding cancellation was sent to the insured along with cheque of prorate premium drawn on Bank of India".
23. In view of the above, are of the view that the petition had cancelled the policy as per Clause No.5 of the terms and conditions of the policy which had been issued in favour of respondent No.2 even giving the reasons for cancellation of the policy. Respondent No.2 did not challenge the cancellation of the policy. Respondent No.2 also failed to the inform the individual beneficiaries including respondent No.1 of cancellation of the policy and failed to refund the prorate premium sent to them vide letter dated 6.9.2006. They thus denied the opportunity to the petitioner and her husband to avail of an alternate policy, if they so desired. Petitioner's husband Dr. Abhay Bansilal Bedmutha died on 14.10.2008. Hence, the revision petition is allowed and the order of the District Forum is modified to the extent that complaint /application of the complainant is admitted only against respondent No.2 who should pay the expenses of // 12 // Rs.5,000 as also Rs.5.00 lakh with interest @ 9% per annum from the date 13.11.2006 till that period to getting the full amount. Similarly for the mental /psychological harassment the damages amount of Rs.10,000/- be given to the complainant within 30 days from the date of pronouncement of this order."
15. It appears that the appellant (O.P. No.4) had cancelled the insurance policy on 08.03.2002, but the intimation regarding the same was not given by the O.P. No.4 to the life assured or the complainant. It was the duty of the O.P. No.4 (Insurance Company) to give intimation regarding the cancellation of the insurance policy to the life assured or the complainant in writing, but in the instant case, such intimation was not given by the O.P. No.4 (Insurance Company) to the life assured or the complainant, therefore, the defence of the O.P. No.4 (Insurance Company) that the insurance policy was already cancelled prior to the date of death of the life assured Shyam Lal Kanwar, is not acceptable.
16. Now we shall examine whether the death of the life assured Shyam Lal Kanwar, is accidental death ?
17. The complainant has filed copy of First Information Report (document No.1), Merg Intimation (document No.3), Inquest (document No.4), application for post mortem examination (document No.5) and post mortem examination report (document No.6). Looking to the above documents, it appears that the life assured died due to road accident, therefore, his death is accidental in nature.
18. The appellant (O.P. No.4) raised objection that at the time of death, the life assured Shyam Lal Kanwar had consumed liquor and he was under
influence of alcohol and was in intoxicated condition. The learned counsel for // 13 // the O.P. No.4 (Insurance Company) has relied on the post mortem examination report of the deceased life assured.
19. We have perused the post mortem examination report of deceased life assured Shyam Lal Kanwar. In the post mortem examination report it is simply mentioned that there is possibility of alcholoic intoxication. The viscera was preserved by the doctor, who conducted postmortem, but the viscera report has not been filed by the O.P. No.4. The quantity of the alcohol is not mentioned in the post mortem report.
20. In Himachal Pradesh Road Transport Corporation Limited vs. New India Assurance Company Limited, II (2007) CPJ 287, a table has been given. In the above judgment, Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla, has relied on Medical Jurisprudence and Toxicology, 7th Edition by HWV Cox, Table 7.5.1 . The above table is as below :-
Table 7.5.1.
Table showing the Effects of Different Concentration of Alcohol.
Concentration Minimum Behaviour and Remarks.
of Alcohol in consumed volume sign.
blood (mg. 100 of 70% proof
ml) Spirit (ml.)
Upto 50 Less than 70 No change Dry and decent, fit
Slightly flushed to drive.
face.
50 to 140 70 to 150 Majority are gay, Dry and decent, fit
vivacious and to drive.
talkative a few
may show
symptoms of more
severe
intoxication.
Around 150 150 to 200 Garrulous and A critical level.
aggressive. Delighted and
devilish, may be
dangerous in
control of a
// 14 //
vehicle.
150 to 200 250 to 300 Motor Delinquent and
incoordination disgusting. Unfit
slurred speech, to drive.
staggering Gait.
400 to 600 550 to 500 Comatosed. Dazed and
dejected.
Above 600 More than 700 Asphyxia and Dead drunk.
death.
21. In the instant case, in the post mortem report, the quantity of alcohol, is not mentioned and only it is mentioned that there is possibility of alcoholic intoxication. In the post mortem report, quantity of alcohol is not mentioned and viscera was preserved, but the viscera report has not been filed by the O.P. No.4.
22. In Himanshu Sharma vs. National Insurance Company Limited (Appeal No.12/431) and National Insurance Company Limited vs. Himanshu Sharma (Appeal No.FA/12/499), decided by this Commission on 07.03.2013, this Commission has observed thus :-
"7. We have very anxiously gone through these papers and other material, which were brought on record before the District Forum, but from the entire material, we fail to take note of any fact on the basis of which it can be concluded that driver of the insured vehicle, Shri Uttam Verma, was driving the vehicle at the relevant time under the influence of liquor and was fully intoxicated. It is just possible that driver might have consumed some alcohol, but it never means that he has become intoxicated under the influence of liquor and lost his control over his faculties. Merely breathing test of the driver was taken, which confirmed smell of alcohol, but there is no medical evidence to show that he was intoxicated and was unable to have control over his faculties. Medical Report does not prove the effect that he had consumed particular quantity of liquor and can be said a person under intoxication. Medical report of the driver Shri Uttam Verma, has been filed before the District Forum. The photocopy of MLC report of Shri Uttam Verma also merely says that he had // 15 // suffered an injury on his left cheek, and had consumed alcohol, but there is no positive finding in the medical report that he was intoxicated. Any affidavit of the Doctor, who had given medical report, has also not been filed before the District Forum. Thus, best evidence was not available and therefore, the District Forum, has not committed any mistake in arriving the conclusion that there is no evidence to prove that driver of the insured vehicle, was under intoxication while driving the vehicle.
8. On the basis of aforesaid discussions, it cannot be held that driver of the insured vehicle, was intoxicated and the complainant committed any criminal act or any breach of any policy condition. In fact policy document does not contain any such condition, under which it can be said that the O.P. / Insurance Company, will not be having any liability in case anybody drives the vehicle merely consuming liquor."
23. In United India Insurance Co. Ltd. Through its Regional Office Vs Sheela & Ors., 2014 (2) CPR 734 (NC)), Hon'ble National Commission has observed thus :-
"8. Further, we put reliance upon, a judgment of this Commission, in Life Insurance Corporation of India v. Smt. Ranjit Kaur, 2011, (3) CPR 266 (NC), that mere presence of alcohol, even usually prescribed limits, is not a conclusive proof of intoxication. Further, in this case, there is also no evidence that there is nexus between the death caused by drowning and consumption of liquor. In the light of the principles laid down in the above decision, we are of the view that it is not proved that the deceased was under the influence of liquor at the time of the accident. Even the investigation report issued by Mr. George Thattil (Insurance Investigator) does not support the Petitioner/OP.
9. Hence, in entirety of our discussion, there is nothing suggestive of alcohol-related death, in the post mortem report. We have certain apprehension in allowing this revision petition, because it pertains to issue relating to non- payment of claim on account of alcohol being detected in substantial concentration in blood. One need to be absolutely convinced about the reliability of the chemical examiner's analysis. It is unfortunate and it also appears that a // 16 // responsible Forensic Medicine and Chemical Analysis department had made a casual approach to the PM investigations. The PM certificate is, with a lot of errors which raise many doubts. In such a situation, we are of considered view that the complainant should get benefits. Accordingly, we agree with the impugned order of State Commission, and dismiss the revision petition. No order as to costs."
24. In our considered opinion, mere smell of alcohol cannot be substitute for holding the fact that the accident had taken place because at the time of accident, the deceased had consumed alcohol. The O.P. No.4 (Insurance Company), has not been able to prove that the deceased was under influence of alcohol and it would not be sufficient to prove the fact that the accident had taken place because of fault of the deceased due to consumption of alcohol.
25. The life assured Shyam Lal Kanwar, was insured under Group Janta Personal Accident Insurance Policy with the O.P. No.4 (Insurance Company) and his death is accidental in nature, therefore, the complainant is entitled to get the sum assured Rs.5,00,000/- under the insurance policy.
26. Now we shall examine whether the complaint of the complainant, is barred by time ?
27. According to the complainant, the life assured Shyam Lal Kanwar died on 02.10.2004. The complainant filed copy of letter which was sent by the complainant to Deputy General Manager, S.E.C.L. In the above letter, the seal of S.E.C.L. is affixed. Looking to the above letter, it appears that the complainant had sent the intimation regarding death of her husband Shyam Lal Kanwar, to the S.E.C.L. in the year 2004 itself, but the complainant had not given intimation regarding death of her husband Shyam Lal Kanwar, to the O.P. // 17 // No.4. Copy of another letter dated 26.12.2008 has been filed by the complainant herself, which was sent by her to the Divisional Manager, Oriental Insurance Company Ltd., in which under the round seal of the Oriental Insurance Company Ltd. Bilaspur, the date is mentioned 26.12.2008. The complainant has also filed copy of the letter dated 26.08.2009, which was sent by the Divisional Manager, The Oriental Insurance Company Limited, to Shri B.R. Banjare, Advocate, in which it is mentioned that letter dated 11.06.2009 was received. Copy of another letter dated 08.09.2009 has been filed by the complainant, which was sent by Shri B.R. Banjare, Advocate to Divisional Manager, The Oriental Insurance Co. Lt., Bilaspur, in which it is mentioned that the complainant had sent intimation regarding death of her husband Shyam Lal Kanwar along with documents on 26.12.2008. It appears that the intimation regarding death of the life assured Shyam Lal was given by the complainant to the O.P. No.4 (Insurance Company) for the first time on 26.12.2008 i.e. after 4 years of the date of death of the life assured.
28. In Oriental Insurance Company Limited Vs. Mamta Singh & Another III (2016) CPJ 269 (NC), Hon'ble National Commission has observed thus :-
"Consumer Protection Act, 1986 - Sections 24A, 21(b) - Limitation - Accrual of cause of action - Contention, cause of action accrued when insured died - Not accepted - Consumer Protection Act is a social benevolent Act having wider scope in adjudicating consumer complaint - Complainant being a helpless widow could not procure post-mortem report because of several reasons which was beyond her reach It was not her fault or lapse on her part. Delay condoned."
// 18 //
29. In Kandimalla Raghavaiah And Co. Vs. National Insurance Co. & Anr., (2009) 7 Supreme Court Cases 768, Hon'ble Supreme Court observed thus:
"18. The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts", which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is brought, "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit. (See Sidramappa v. Rajashetty.) In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out."
30. In Smita Madhav Patki Vs. National Insurance Co. Ltd. & Ors, I (2013) CPJ 331 (NC), Hon'ble National Commission observed thus:
"17. State Commission in its order has observed:
5. Cause of action for the insurance claim in question but arose on the death of late Madhav Patki and not on the date of repudiation of the insurance claim as alleged by the complainant.
A useful reference can be made to the decision of the Apex Court in the matter of Kandimalla Raghavaiah & Co. v. National Insurance Co. Ltd. and Others, 2009 CTJ 951 (SC) (CP). Insurance claim, thus, is preferred beyond the period of two years from the date of cause of action, supra and as such barred by limitation. There is no application for condonation of delay, admittedly, made.
6. Janata Personal Group Accident Policy is on record. Amongst other terms it also submitted as under:
"It is also hereby further expressly agreed and declared that if the Company shall disclaim liability to the insured for any claim hereunder and such claim shall not within 12 calendar months from the date of such ...have been made the subject of a suit in a Court of Law then the claim shall for all purpose be deemed ... been abandoned and shall not thereafter be recoverable hereunder."
7. As held by the Apex Court in the matter of Himachal Pradesh State Forest Co. Ltd. v. United India Insurance Co. Ltd, (2009) 2 SCC 252, though above referred clause in view of Section 28 of the Contract Act will not be acted upon for the curtailment of the period of limitation still the later part of it which refers to extension of the right itself unless exercised within specified time // 19 // can be enforced. Therefore, since the claim was not made within 12 calendar months from the date of happening, the claim shall for all purposes be deemed to have been abandoned and is not recoverable after the expiry of the said period.
8. For the above said reasons, we find that no fault can be found with the impugned order resulting into dismissal of consumer complaint. Holding accordingly, we pass the following order."
31. In Ganpat Rama Madhavi Vs. New India Assurance Company Ltd. IV (2011) CPJ 210 (NC); Hon'ble National Commission has observed that "If the Insurance Company had not repudiated claim and taken more than two years to take decision of claim, aggrieved insured could not have waited indefinitely and would have had to file consumer complaint from date of occurrence of peril. Period of limitation cannot be reckoned from the date of repudiation of claim. Complaint time barred."
32. In National Flask Industries Ltd. vs. Dakshin Gujarat Vij Co. Ltd. & Ors., IV (2015) CPJ 566 (NC), Hon'ble National Commission has observed, thus :-
"23. ....... The cause of action will arise from the date of incident and not from the date, when the Insurance Company has given a decision on the complaint/claim. The complainant should have filed the complaint immediately, within two years and should have given the notice to the OPs, within the said two years, in order to file the complaint within time.
33. In the instant case, the death of life assured Shyam Lal Kanwar was occurred on 02.10.2004 . The complainant has submitted application before the O.P. No.4 (Insurance Company) for the first time on 26.12.2008. The O.P. No.1 has filed copy of relevant portion of the postage book. From bare perusal of the postage book, it appears that intimation regarding death of the deceased life assured was sent by the S.E.C.L. to the O.P. No.4 (Insurance Company) in the year 2012.
// 20 //
34. After giving intimation to the S.E.C.L. regarding death of the life assured Shyam Lal Kanwar, the complainant was kept silent for four years and thereafter she sent letter to the O.P. No.4 (Insurance Company) on 26.12.2008. When the letter was sent by the complainant to the O.P. No.4 (Insurance Company) at that time, the limitation of two years was already elapsed. Therefore, merely sending subsequent letters by the complainant to the O.P. No.4 (Insurance Company) or the O.P. No.4 has not settled the claim of the complainant, is not sufficient to bring the claim of the complainant within limitation. The compliant of the complainant, is barred by the time. The complaint is not maintainable and is liable to be dismissed. Therefore, the impugned order dated 23.03.2018, passed by the District Forum, is erroneous and is liable to be set aside.
35. Hence, the appeal filed by the appellant (O.P. No.4), is allowed and the impugned order dated 23.03.2018, passed by the District Forum, is set aside. Consequently, the complaint filed by the respondent No.1 (complainant), shall stand dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Smt. Ruchi Goel)
President Member Member
07/09/2018 07 /09/2018 07 /09/2018