State Consumer Disputes Redressal Commission
Amarjit Kaur vs Hdfc Ergo General Insurance Company ... on 17 May, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.292 of 2016
Date of institution : 11.04.2016
Reserved on : 09.05.2017
Date of decision : 17.05.2017
Amarjit Kaur widow of Sh. Amrik Singh son of Ajaib Singh, resident
of Village Rassulpur, Tehsil Zira, District Ferozepur.
....Appellant/Complainant
Versus
1. Director/Responsible Person, HDFC Ergo General Insurance
Co. Ltd. Regd./Corporate Office at 1st Floor, 165-166,
Backbay Reclamation, H.T. Parekh Marg, Church Gate,
Mumbai-400020.
2. Branch Manager, HDFC Ergo General Insurance Co. Ltd.,
Nearest Branch Office at Surya Tower, Mall Road, Ludhiana,
Tehsil and District Ludhiana.
3. Branch Manager, HDFC Bank Limited, Dharamkot Road,
Fatehgarh Panjtoor, Tehsil Dharamkot, District Moga.
....Respondents/Opposite Parties
First Appeal against the order dated
01.03.2016 of the District Consumer
Disputes Redressal Forum, Moga.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member.
Present:-
For the appellant : Sh. Rajan Bansal, Advocate for Sh. Ashish Gupta, Advocate For respondents No.1&2 : Sh. Vishal Aggarwal, Advocate For respondent No.3 : Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The instant appeal has been filed by the appellant/complainant against the order dated 01.03.2016 passed by District Consumer Disputes Redressal Forum, Moga (in short, "the District Forum"), whereby the complaint filed by her, under First Appeal No.292 of 2016 2 Section 12 of the Consumer Protection Act, 1986, against the respondents/opposite parties was dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
3. Brief facts, as averred in the complaint, are that Sh. Amrik Singh, husband of the complainant, was working as a Mandi Supervisor in Market Committee, Dharamkot. He opened account No.50100062801386 with opposite party no.3-Bank and obtained a loan of ₹3,50,000/- from it, which was repayable in monthly installment of ₹17,263/- from 07.01.2015 to 07.12.2016. The loan amount was disbursed to him on 24.11.2014. In order to secure the loan, opposite party no.3 got insured the husband of the complainant with HDFC Ergo General Insurance Company Ltd., which is its sister concern, by deducting ₹1,863/- from his account on 24.11.2014 and sending the same to opposite party no.1 & 2, who issued a policy 'Sarv Suraksha Policy' bearing no.2950 2009 1452 3900 000 in the name of Amrik Singh. The complainant was appointed as nominee in the said policy. Under the said policy, the coverage was given regarding the 'Credit Shield Insurance' (to secure the loan amount of ₹3,50,000/-) for an amount of ₹3,50,000/-, accidental death for an amount of ₹4,00,000/- and accidental hospitalization for an amount of ₹1,00,000/-. The premium deducted by opposite party no.3 from his account was acknowledged by opposite party No.1, vide letter dated First Appeal No.292 of 2016 3 25.11.2014. On 08.02.2015, husband of the complainant suddenly fell down from his motorcycle and got injured. He was diagnosed as suffering from 'Cervical Spine Injury' and ultimately he died on 10.02.2015 due to said accidental injury and cardiac arrest in Guru Nanak Dev Super Specialty Hospital Tarn Taran. The complainant spent an amount of ₹25,000/- on his treatment. She lodged the claim, alongwith the requisite documents as required by opposite party no.3, and the same were acknowledged/accepted by opposite parties no.1 & 2. They also sent a message on 27.04.2015 on the mobile of the complainant, stating that her claim (No.C295014006689) was processed and the same would be decided, as soon as possible. She specifically explained the opposite parties No.1 & 2, through emails, that there was no post-mortem and FIR regarding the said accident. However, the opposite parties failed to settle the claim of the complainant. Due to non-payment of claim amount under the policy, opposite party no.3 started harassing the complainant to make payment of the loan amount, having full knowledge that they had already insured her husband, through the policy in question. Opposite parties No.1 & 2 issued a letter dated 01.07.2015 demanding FIR, Post-mortem report etc. Ultimately, the complainant sent legal notice dated 04.09.2015 to the opposite parties, who neither gave any reply nor decided the claim. Accordingly, the complainant approached the District Forum, seeking the following directions to them:
First Appeal No.292 of 2016 4
i) to pay ₹7,75,000/- being the sum assured and coverage (Credit Shield Insurance Rs.3,50,000/-, accidental death Rs.4,00,000/- and accidental hospitalization expenses Rs.25,000/- under the policy in question), alongwith interest @ 12 % per annum;
ii) to pay ₹1,00,000/-, as compensation for mental tension, harassment and agony suffered by the complainant; and
iii) to pay Rs.22,000/- as litigation expenses.
4. Upon notice, opposite parties No.1 & 2 appeared before the District Forum and filed joint reply, whereas opposite party No.3 did not appear despite its service and was proceeded against ex parte.
5. Opposite parties No.1 & 2, in their reply, raised preliminary objections that the complaint is not maintainable, being false, frivolous and vexatious. After lodging the claim, the complainant failed to furnish the requisite documents and information to them for processing the claim, inspite of 14 requests letters served upon her. For want of those documents/information, the claim was closed. Even after closure of the claim, the opposite parties again requested the complainant to furnish the required documents, but of no avail. The documents and the alleged medical treatment papers are not sufficient to prove the cause of death of insured, Amrik Singh. There is no document to prove that the death was due to an accident i.e. sudden, unforeseen and involuntary event caused by external, visible and violent means. First Appeal No.292 of 2016 5 The complainant has failed to prove that the death/hospitalization of Amrik Singh took place, due to any 'accident', as defined in the policy, in question. The claim of the complainant was closed, after due application of mind. The complainant is bound by the terms and conditions of the insurance policy. It was further pleaded that the "accidental injury/death" is a pre-condition to get benefits of 'Credit Shield Accidental Hospitalization' and 'Accidental Death available' under the 'Sarv Suraksha Policy'. On merits, similar pleas, as raised in preliminary objections, were reiterated. It was further pleaded that the term of 'accident' or 'accidental and bodily injury' has been defined as under:-
"Accident or Accidental: Means a sudden unforeseen and involuntary event caused by external, visible and violent means. Bodily Injury: Means physical bodily harm or injury, but does not include any mental sickness, disease or illness."
From the documents furnished by the complainant, it cannot be said that insured Amrik Singh died on account of accidental injuries. It was incumbent on the part of complainant to provide sufficient and cogent proof to establish that the death was accidental and due to bodily injury. According to section 3 and section 5 of the insurance policy in question, the claim was to be paid only in the event of "Accident" and on account of above said reasons, the claim file of the complainant was closed. All other First Appeal No.292 of 2016 6 allegations of the complaint were denied and it was prayed that the complaint be dismissed.
6. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, dismissed the complaint, vide impugned order. Hence, this appeal.
7. We have heard learned counsel for the appellant and respondents No.1 & 2, whereas respondent No.3 has not appeared before this Commission and has been proceeded against ex parte. We have carefully gone through the records of the case.
8. Learned counsel for the appellant/complainant vehemently contended that on 08.02.2015, husband of the complainant suddenly fell down from his motorcycle, due to which he got injured and he was diagnosed as "Cervical Spine Injury". Thereafter, her husband died on 10.02.2015, due to accidental injury and cardiac arrest in Guru Nanak Dev Super Specialty Hospital, Tarn Taran. The complainant had spent sufficient amount upon the treatment of her husband. The claim was wrongly rejected by the opposite parties, on the ground that the death was not the result of the accident and rather the cause of death was heart attack (cardiac arrests) and the same is not covered under the policy, in question. The District Forum has wrongly dismissed the complaint, without any proper justification. It was further contended that the husband of the complainant was account First Appeal No.292 of 2016 7 holder with opposite party No.3-Bank and "Sarv Suraksha Policy"
was issued in the name of Amrik Singh, husband of the complainant. Under the policy, "Credit Shield Insurance" (to secure the loan amount of ₹3,50,000/-) was provided. The complainant is entitled to all the benefits covered under the policy, in question. The judgments relied upon by the District Forum are not applicable to the facts of the present case. It was, thus, contended that the appeal be allowed and all the reliefs, as prayed for in the complaint, be awarded in favour of the complainant. Learned counsel, in support of his submissions, relied upon the following cases:
i) United India Insurance Co. Ltd. v. Alka Maheshwari 2017 (1) CLT 83 (NC); and
ii) Eeta Devi v. United India Insurance Co. Ltd. 2015 (2) CLT 504 (NC).
9. Per contra, learned counsel for respondents No.1 & 2/opposite parties No.1 & 2 contended that the District Forum has passed the well reasoned order, after properly taking into consideration the entire evidence and other material placed on the record. In fact, the complainant failed to furnish the requisite documents to opposite parties No.1 & 2 for settlement of the claim and the claim was closed, for want of documents. There is no document to prove that the death of the deceased was due to accident i.e. sudden, unforeseen and involuntary event caused by external, visible and violent means. It was further contended that First Appeal No.292 of 2016 8 accidental injury/death is a pre-condition to get benefits of "Credit Shield Accidental Hospitalization" and "Accidental Death" availed under the policy, in question. The complainant failed to furnish proof of accidental death of the deceased, i.e. FIR, postmortem report etc. There is no deficiency in service on the part of opposite parties No.1 & 2 and the appeal is liable to be dismissed. In support of his arguments, learned counsel relied upon the following judgments:
i) SBI Life Insurance Co. Ltd. v. Kamaljeet Kaur 2016 (1) CLT 284 (NC)
ii) Mrs. Madhumita Bose v. HDFC Ergo General Insurance Company Limited & Anr. 2015 (1) CPJ 647 (NC);
iii) United India Insurance Co. Ltd. v. P.M. Nagesh Nayak 2014 (1) CPJ 686 (NC); and
iv) LIC of India v. Ved Prakash Gupta & Anr. 2013 (1) CPJ 714 (NC).
10. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties and perused the record.
11. Admittedly, Amrik Singh, husband of the complainant, obtained loan of ₹3,50,000/- from opposite party No.3-Bank. Opposite party No.3, in order to secure the loan amount, got insured him from opposite parties No.1 & 2 under "Sarv Suraksha Policy" Ex.C-4, under which coverage was given regarding the Credit Shield Insurance (to secure the loan amount of ₹3,50,000/-) First Appeal No.292 of 2016 9 for an amount of ₹3,50,000/-, accidental death for an amount of ₹4,00,000/- and accidental hospitalization for an amount of ₹1,00,000/-. On 08.02.2015, her husband had fallen from the motorcycle and suffering "Cervical Spine Injury" and died on 10.02.2015, as per Death Certificate Ex.C-7. It is also an admitted fact that no postmortem was carried out nor any police report was lodged. Opposite parties No.1 & 2 closed the claim file of the complainant, on the ground that she failed to furnish the requisite documents, i.e. FIR, postmortem report, panchnama etc., to prove that the death of her husband was due to accident.
12. We are of the view that conducting of postmortem and lodging of FIR was necessary, if there would have been any doubt that the accident has been caused by some person with a motive. Even otherwise, the production of postmortem and FIR is necessary, only if the FIR is lodged and postmortem is conducted. When the same is not lodged/conducted, then the claim cannot be declined in their absence. It was held by this Commission in "Parkash Kaur & others v. ICICI Lombard General Insurance Company & another" 2009(1) CLT 74, which was a case of death due to snake bite, that the claim cannot be repudiated simply on the ground that the post mortem report or police report is not proved despite the fact that the snake bite or accident is proved by other evidence. Similarly, this Commission in "Manager, Health Administrator Team, Bajaj Allianz General Insurance Co. Limited v. Ravinder Kaur & Ors." 2012 (1) CPC 100 held that First Appeal No.292 of 2016 10 where the insured died due to inhaling of insecticide the claim cannot be repudiated on the ground that the FIR was not filed and that the post mortem examination was not conducted.
13. So far as the contention of opposite parties No.1 & 2 that the complainant failed to furnish any document to prove that the death of her husband took place due to accident is concerned, admittedly, her husband had fallen from the motorcycle and suffered 'Cervical Spine Injury' on 08.02.2015 and died on 10.02.2015. It was for the Insurance Company to prove that the insured died in any other manner than the accident. It is a matter of common knowledge that after the injury, the consequences of shock and heart attack are possible. Once a person comes to know that injury is of such a severe nature, shock affects such a person, which may result into heart attack.
14. The certificate dated 01.10.2015, Ex.C-5, issued by the employer of the deceased, mentions the cause of death as 'fall from motorcycle'. Death Certificate Ex.C-7 clearly mentions place of death as "Guru Nanak Hospital, Tarn Taran". Ex.C-13 is the Death Summary, issued by the hospital authorities, which clearly specifies the cause of death. Ex.C-15 is another document issued by the hospital authorities, which indicates the nature of injuries and consequential death.
15. In the light of the above documents, it is clear that the deceased has died due to accidental injuries, having been fallen from the motorcycle. Furthermore, the Cervical Spine Injury raises First Appeal No.292 of 2016 11 the risk of heart attack/stroke three times more. Autonomic dysfunction caused by the Cervical Spine Injury is also associated with severe conditions that contribute to high cardiovascular risk. From this, it cannot be presumed that the cause of death was only heart attack. Besides this, the impaired control of the autonomic nervous system (ANS), especially in individuals with cervical SCI, can lead to hypotension, bradycardia and autonomic dysreflexia. Additional associated cardiovascular concerns in SCI include deep venous thrombosis (DVT) and long term risk for coronary heart disease (CHD). Neurogenic shock and cervical shock are the proximate cause of heart attack, specifically when the Cervical Spine Injury is there. The death may occur instantly or within few days.
16. In similar set of circumstances, in case Alka Maheshwari's case (supra), the Hon'ble National Commission observed in Paras No.11 and 12 as under:
"11. It is the own version of the Insurance Company that when the deceased went to the urinal in the bathroom after waking up from bed on 05.07.2007, he suddenly fell on the floor and blood started oozing from his ear and nose and thereafter, he vomited. The report made by Dr. Atul Saxena, the government doctor, who attended to him immediately after the accident, says that it was the case of fall on floor in the bathroom. The said doctor also stated that there was no external, visible injury seen. On the other hand, the panel doctor of the Insurance Company as well as the investigator has First Appeal No.292 of 2016 12 stated that he went unconscious due to high blood pressure and started bleeding. A perusal of the material on record, however, does not indicate that there is any evidence in support of the assertion of the Insurance Company that the deceased was an old case of high blood pressure.
The case of the complainant is that he was not suffering from any disease during the last ten years. In the absence of any concrete evidence, it cannot, therefore, be believed that the deceased was suffering from high blood pressure. Further, it has been amply made clear in the order passed by this Commission in Padma Ramanathan vs. National Insurance Co. Ltd. (supra) after referring to the law stated in para 578 of Halsbury's Laws of England that "any cause which is not internal must be external, but this does not mean that the injury must be external; there may be, and often is, nothing externally visible to indicate the presence of internal injury at all". In Deepak Jaiswal vs. Oriental Insurance Company (Supra) also, it was stated as follows:-
"10. In our view, undisputedly, the deceased fell down while going to bathroom and from this it cannot be presumed that he fell down because he was suffering from hypertension. A fall can be for various reasons such as slippery surface or missing of a step from the stair. Therefore, it would be difficult to draw an inference that the fall of the insured must be because of hypertension. Further, there is nothing on record to establish that the deceased was having hypertension and that it was known to him before taking the policy. Hence, it can be held that Insurance Company has failed to establish that the assured fell down because of hypertension."First Appeal No.292 of 2016 13
12. The facts stated in the case quoted above are applicable to a large extent to the present case. As already stated, there is no evidence on record to establish that the deceased was suffering from hypertension and that the same was known to him, before taking the policy. The opinion given by panel doctor of the Insurance Company and the Government doctor that the fall was on account of hypertension, seems to be quite a remote possibility. It is held, therefore, that the State Commission and the District Forum rightly refused to believe the version of the Insurance Company in this regard and held it to be a case of fall by accident. It is quite evident that the patient died shortly after suffering the fall in the bathroom and in fact, he succumbed to his injuries even before reaching the S.K. Soni Hospital, leading to the implication that he did suffer from an internal injury after the fall in the bathroom."
17. In Eeta Devi's case (supra), Hon'ble National Commission held that the onus to prove that the death of the insured is a natural one and not an accidental death shifts on the Insurance Company. It was further held that when the death was caused by accidental fall, the question of reporting the matter to the police and conducting the panchnama does not arise. In that case also, the postmortem was not done and the death was not construed to be a suspicious one. The repudiation of the claim, on the ground that the claimant had not sent the documents, which were not relevant to the nature of the death, was held totally unjustifiable.
First Appeal No.292 of 2016 14
18. In another case Additional Secretary, Chhattisgarh State Power Holding Company Ltd. v. Bajaj Allianz General Insurance Co. Ltd. Revision Petition No.2139 of 2011 decided by the Hon'ble National Commission on 19.03.2014, it was held in Para No.10 as follows:
10. As per the above report, the cause of death is cardiorespiratory failure. The cause of cardiac arrest could be the existence of a pre-cardiac disease or even in the absence of such a disease, the cardiac arrest could take place due to shock upon falling from a pole 36 in height. In the event of death by any means, the cardiac arrest or cardiac failure has to take place and only after that, a person is usually declared as dead. The cause of death stated in the post mortem report, therefore, does not support the version of the respondent that it was a death not due to accident.
Further, it has been stated in the post mortem report that no external injury was found on the body of the deceased. During fall from a pole, it is not necessary that bodily injury should always take place. The basic point is that there has been a fall from a pole and there has been the death of the employee. The argument taken by the respondent that the employee suffered heart attack while working on the pole, he died then and there, and then fell down, is not substantiated by any medical evidence. Rather, the version that because of his fall from the pole, he got a shock, due to which he suffered a heart-attack and died, seems to be a more plausible explanation.
Even if it is believed that heart-attack occurred while he was working on pole, the factum of falling from the pole and his death does not exclude the incident from the nomenclature First Appeal No.292 of 2016 15 of accident, based on the test of any prudent thinking and common sense.
19. Applying the ratio of the law laid down in the above authorities, it can be held that after the fall from the motorcycle, the insured must have suffered shock due to which he further suffered heart attack and died due to accidental injuries. Opposite parties No.1 & 2 have also failed to produce any evidence to show that the insured was having the previous history of heart ailment prior to taking the policy. The authorities relied upon by the learned counsel for opposite parties No.1 & 2 are distinguishable, in view of the law laid down in the above discussed authorities. The District Forum has passed the impugned order, without properly appreciating the evidence on record and the law applicable on the subject. Under the policy Ex.C-4, the complainant, being the nominee of the deceased, is entitled to accidental hospitalization to the extent of ₹1,00,000/- and accidental death benefits to the extent of ₹4,00,000/-. Besides this, Credit Shield Insurance coverage to the extent of ₹3,50,000/- is also provided in the policy. The complainant has placed on record 'Patient Detail Report', vide which total amount of ₹28,537/- was spent on the treatment of the deceased. However, perusal of prayer clause shows that the complainant has claimed ₹25,000/- towards hospitalization expenses and she is entitled to receive the said amount from the Insurance Company under the policy, in question, besides accidental death benefits to the extent of ₹4,00,000/-. First Appeal No.292 of 2016 16
20. The complainant herself has mentioned in Para No.4 of the complaint that 'Credit Shield Insurance' coverage to the extent of ₹3,50,000/- was issued under the policy, in question, to secure the loan amount of ₹3,50,000/- obtained by her husband. We are of the view that since the insured has died, as such, the amount of ₹3,50,000/- under 'Credit Shield Insurance' coverage is payable by opposite parties No.1 & 2 to opposite party No.3-Bank directly. The complainant shall also pay the outstanding amount, if any, to the opposite party No.3-Bank in respect of the loan obtained by her deceased husband.
21. In view of our above discussion, the appeal is allowed and the impugned order dated 01.03.2016 passed by the District Forum is set aside. Resultantly, the complaint filed by the complainant is allowed against opposite parties No.1 & 2and following directions are issued to opposite parties No.1 & 2:
i) to pay ₹4,00,000/- towards accidental death benefits to the complainant, along with interest @ 9% per annum from the date of lodging the claim till realization;
ii) to pay the loan amount to the maximum extent of ₹3,50,000/-, i.e. the amount covered under Credit Shield Insurance, directly to opposite party No.3-Bank;
iii) to pay ₹25,000/- towards hospitalization expenses to the complainant;
iv) to pay ₹50,000/- towards compensation for mental agony and harassment suffered by the complainant; and First Appeal No.292 of 2016 17
v) to pay ₹7,700/-, as litigation expenses to the complainant;
and
22. Opposite parties No.1 & 2 are directed to comply with the order within 30 days of the receipt of certified copy of the order.
23. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER May 17, 2017.
(Gurmeet S)