State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Asha Rani on 24 May, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.899 of 2009.
Date of Institution: 30.06.2009.
Date of Decision: 24.05.2013.
National Insurance Company Limited, Sector-34, Chandigarh, through its
duly Authorized Officer.
.....Appellant.
Versus
1. Asha Rani wife of Sh. Vijay Kumar (mother of Dr. Ramandeep Garg)
C/o Vijay Cloth House, Hall Bazar, Muktsar, Tehsil and District
Muktsar.
2. Golden Trust Financial Service, SCO No.83-84, IInd Floor, Sector 34-
A, Chandigarh.
...Respondents.
First Appeal against the order dated
04.05.2009 (wrongly mentioned in the
appeal as "14.05.2009") of the District
Consumer Disputes Redressal Forum,
Muktsar.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. Vinod Gupta, Advocate, counsel for the appellant.
Sh. Pankaj Sahotra, Advocate for Sh. R.K. Girdhar, Advocate, counsel for respondent no.1.
Name of respondent no.2 deleted vide order dated 29.06.2010.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
This order shall dispose of two (2) appeals i.e. First Appeal No.899 of 2009 (National Insurance Company Limited Vs Asha Rani & Anr.) and First Appeal No.847 of 2010 ( Asha Rani Vs National Insurance First Appeal No.899 of 2009 2 Company Limited & Anr.) as both the appeals are directed against the same order dated 04.05.2009 passed by the learned District Consumer Disputes Redressal Forum, Muktsar (in short "the District Forum"). The facts are taken from First Appeal No.899 of 2009 and the parties would be referred by their status in this appeal.
2. Facts in brief are that Smt. Asha Rani, respondent no.1/complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), narrating that she is real mother of Dr. Ramandeep Garg, who died in the accident and is his nominee. Dr. Ramandeep Garg was a member of respondent no.2 and purchased a policy known as 'Group Janta Personal Accident Insurance Policy', covering the personal accident risk for different sums for 15 years i.e. from 23.11.2003 to 22.11.2018 from the appellant and appellant issued a certificate to all the beneficiaries. Through this policy, the respondent no.1 and her two sons namely Mandeep Kumar, aged 23 years and Dr. Ramandeep Garg, aged 22 years were insured for personal accident risk for the amounts as under:-
(i) Asha Rani aged 46 years for Rs.1.00 lac (ii) Mandeep Kumar aged 23 years for Rs.3.00 lacs (iii) Dr. Ramandeep Garg aged 22 years for Rs.3.00 lacs
3. The son of respondent no.1 namely Dr. Ramandeep Garg went to Manipal (Karnataka) for further professional course. Dr. Ramandeep Garg while walking on the shore at about 6.00 P.M. on 27.10.2005 was washed away by strong sea waves and was drowned. His dead body was recovered at about 12.00 Noon on 27.10.2005. FIR was lodged on 27.10.2005 bearing no.0024 at Police Station, Kaup, District Udupi, Karnataka. The postmortem was conducted and the report u/s 173 Cr.P.C. was prepared by the police which was accepted by the court and in the judgment also this fact was admitted that the death was caused due to accident on account of drowning and the final report was accepted by the court.
First Appeal No.899 of 2009 3
4. Respondent no.1 was not knowing about the said policy purchased by Dr. Ramandeep Garg and it came to her knowledge in May, 2006 i.e. after about six months of the death of Dr. Ramandeep Garg, when the father of Dr. Ramandeep Garg found some papers of Dr. Ramandeep Garg which contained the certificate of insurance, covering group personal accident and he immediately intimated the appellant vide letter dated 01.05.2006 through OP-2 (not made party in the appeal).
5. On 19.10.2006, respondent no.1 sent the claim application along with documents, but the appellant failed to acknowledge the claim of respondent no.1 and respondent no.1 received a registered letter dated 24.04.2007 issued by the appellant, refusing the claim on the grounds of late submission, non-supply of certain papers, deceased was under the influence of liquor at the time of death. The respondent no.1 after completing all the required formalities again approached the appellant on 19.10.2006, but of no use. It is clear from the documents and the record that the death was accidental and respondent no.1 is entitled to claim the insurance amount and the denial of the same amounts to deficiency in service and respondent no.1 suffered a lot of mental tension and harassment.
6. It was prayed that the appellant, OP-2 and respondent no.2 may be directed to pay the death claim of Dr. Ramandeep Garg along with interest from the date of accident till payment and to pay Rs.50,000/- as compensation and Rs.10,000/- as litigation expenses.
7. In the written version filed on behalf of the appellant and OP-2, preliminary objections were taken that the District Forum has no jurisdiction to hear the complaint and there is no cause of action. The respondent no.1 is not a consumer under the Act and is estopped by her act and conduct from filing the complaint. The Insurance Ombudsman, Chandigarh has already dismissed the complaint of respondent no.1 on 9th May, 2007. The evidence is required to be led at length and the civil court is competent. Respondent First Appeal No.899 of 2009 4 no.1 has not come to the District Forum with clean hands and the complaint is vague and is not maintainable.
8. As per respondent no.1, the deceased died on 26.10.2005 and the intimation of death of Dr. Ramandeep Garg was given to the insurance company on 01.05.2006 i.e. after the gap of six months and seven days and no reason or explanation for the delay has been given. There is violation of the terms and conditions of the policy. Dr. Ramandeep Garg, insured was under the influence of alcohol as per the final police report and the approximate cause of the death was influence of alcohol and the claim is not payable as per the policy condition no. 2(b). Original Certificate Bond was not submitted by the respondent no.1 which is a mandatory requirement.
9. On merits, it was admitted that deceased Dr. Ramandeep Garg purchased the policy as a member of a group, but the terms and conditions of the policy were binding upon the insurer and the insured. The report of the Forensic Science Lab. dated 09.01.2006 reveals that the percentage of Alcohol was 53.55mg/100ml of blood. The policy was very much in the knowledge of respondent no.1 right from the beginning, as the other son of respondent no.1 namely Mandeep Kumar as well as respondent no.1 herself were insured under the said policy. It is nowhere mentioned in the complaint that to whom the papers were sent and where the same were sent. Respondent no.1 was duly informed by the appellant on 24.04.2007 and the claim of respondent no.1 was repudiated. Other similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
10. Respondent no.2 did not contest the complaint before the District Forum and was proceeded against exparte.
11. Parties led evidence in support of their respective contentions by way of affidavits and documents.
12. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District First Appeal No.899 of 2009 5 Forum observed that the percentage of alcohol was 53.55 per 100ml of blood, but it is not on file if the deceased became unconscious under the influence of liquor. The sea waves can wash away non-drinker or any drinker in case he is caught in the spin of the waves. Death was not due to alcohol consumption. Late lodging of the claim is no ground to repudiate the claim. The appellant and OP-2 and respondent no.2 are deficient in providing services. The complaint was accepted and the appellant, OP-2 and respondent no.2 were directed to pay Rs.3.00 lacs within one month from the receipt of copy of the order, failing which respondent no.1 shall be entitled to recover interest @ 12% p.a. from the date of decision till realization.
13. Aggrieved by the impugned order dated 04.05.2009, the appellant-Insurance Company has come up in the present appeal, seeking setting aside of the impugned order.
14. Whereas, respondent no.1/complainant has filed cross appeal i.e. First Appeal No.847 of 2010 ( Asha Rani Vs National Insurance Company Limited & Anr.), with a prayer to enhance the compensation.
15. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments filed on behalf of the appellant and respondent no.1.
16. Name of respondent no.2 was deleted vide order dated June 29, 2010 of this Commission.
17. In the written arguments filed on behalf of the appellant, pleadings were repeated. It was further submitted that the District Forum failed to appreciate that deceased Dr. Ramandeep Garg died due to intake of liquor and when he drowned, he was under the influence of liquor. This fact can be proved from the contents of the FIR as well as from the report of Forensic Science Lab. as per which percentage of alcohol in the blood was 53.55mg per 100ml of blood which proves that the deceased had taken liquor before going to the beach. As per policy condition no.2 (b), if the death is due to influence of intoxicant, drug or liquor, then the insurance company First Appeal No.899 of 2009 6 is not liable and the claim was rightly repudiated. Respondent no.1 has already availed the remedy before the Insurance Ombudsman, Chandigarh and the complaint was dismissed and that order was not challenged. The intimation of death was given after a gap of six months and there is no explanation and the District Forum had no jurisdiction. It was prayed that the appeal may be accepted and the impugned order may be set aside.
18. In the written arguments filed on behalf of respondent no.1, it was submitted that the deceased died due to drowning in the sea and not because of consuming liquor and the same has been decided by the District Forum rightly. The compensation granted by the District Forum is inadequate. The District Forum has not awarded any amount of compensation for causing mental tension, harassment and agony. No litigation expenses have been awarded. The bare perusal of statement of Dr. Sandeep Garg , who reported the matter to the police vide writing Ex.C-2, shows that the deceased was carried away accidently by sea waves while he was walking on the sea shore. It is nowhere proved that he died due to intake of alcohol. The order of the District Forum is well reasoned. Condition 2 (b) of the policy is not applicable because in this case, the death was due to drowning and not due to taking of the drug. The order of the District Forum is legal and valid and the appeal of the Insurance Company may be dismissed and the compensation and litigation expenses may be awarded.
19. We have considered the respective written submissions of the parties and have minutely monitored the entire record and other material placed on the file.
20. Vide certificate of insurance Ex.C-1, Smt. Asha Rani, respondent no.1, Mandeep Kumar and Dr. Ramandeep Garg were insured and clause-2 (b) provides as under:-
Provided always that the Company shall not be liable under this policy for:-
"(b) under the influence of intoxicating liquor or drug".First Appeal No.899 of 2009 7
21. Final report U/s 173 Cr.P.C. is Ex.C-2 wherein it was concluded as follows:-
"Deceased Dr. Ramandeep Garg was walking by consuming alcohol on the shore of the sea when the waves of the sea had accidentally lashed onto the shore as a result of which the deceased got drowned in the sea water, as is supported by the Postmortem report and FSL report. It is prayed that this Hon'ble Court be pleased to treat this case as that of accidental death on account of drowning and accept the final report submitted".
22. The Postmortem Certificate dated 27.10.2005 is Ex.C-3 and as per this certificate, the cause of death was as follows:-
"Cerebral oedema and pulmonary oedema secondary to asphyxia resulting from drowning".
23. Ex.C-4 is the intimation given. Ex.C-5 and Ex.C-7 are the letters written for settling the claim. Ex.C-8 is the death certificate of Dr. Ramandeep Garg. Ex.C-9 is the report of Regional Forensic Laboratory, Mangalore, as per which the percentage of alcohol was 53.55mg/100ml of blood. Ex.C-12 is the repudiation letter as per which the claim was repudiated on the ground of late submission and as per the policy condition 2
(b). Ex.C13 is the card of Agent Ashwani Arya of respondent no.2, who is resident of Muktsar, Punjab and Ex.C-14 is the card of Anita Arya, who is also resident of Muktsar, Punjab. Ex.C-15 is the application form for getting mediclaim insurance and Janta Personal Accident Insurance to the members of Golden Multi Services Club of Gold Trust Financial Services, respondent no.2. Ex.C19 is the status report of policy taken through the agent.
24. The appellant has also filed similar documents, including the order of the Insurance Ombudsman Ex.O/P-4. The order passed by the Ombudsman does not preclude the filing of the complaint under the Act. The First Appeal No.899 of 2009 8 appellant has mainly relied upon the proviso 2 (b) of the certificate of insurance Ex.C-1, but the appellant cannot take any benefit of the above proviso, because the death in this case was not due to the influence of intoxicant or liquor or any drug. The respondent no.1 herself has placed on file the report of the Forensic Science Laboratory Ex.C-9 as per which the percentage of alcohol was 53.55mg/100ml of blood, but that was not the cause of death or the reason of death of deceased Dr. Ramandeep Garg. The postmortem was conducted by the department of Forensic Medicine, Kasturba Medical College, Manipal (Karnakata) India and Postmortem Certificate Ex.C-3 was issued and as per this certificate, the cause of death was "Cerebral oedema and pulmonary oedema secondary to asphyxia resulting from drowning". Thus, the cause of death was not, at all, due to any intoxication or drug, but it was drowning. Likewise, investigation was conducted by the police and the final report U/s 173 Cr.P.C. Ex.C-2 was submitted and in that case also, it was concluded after investigation that the case is of accidental death on account of drowning. Thus, the death was accidental due to drowning and respondent no.2 has obtained the insurance policy for its members through Ashwani Arya and Smt. Anita Arya, agents at Muktsar and, as such, the District Forum Muktsar had the jurisdiction.
25. The reason for delay in intimation has been given by the father of the deceased, by lodging the claim vide application Ex.C-4, wherein it has stated that he could not inform the appellant because he found the policy on 01.05.2006 itself. This version of the father of the deceased can be believed, because the policy document was located by the father of the deceased on 01.05.2006 itself and he immediately informed the appellant Insurance Company. Thus, the appellant cannot take any benefit of the same and the appellant is not prejudiced in any manner. Even otherwise, the claim was repudiated on the grounds which were not available to the appellant Insurance Company. The District Forum has passed a detailed and speaking order, based on the evidence and law, and has cited a number of authorities First Appeal No.899 of 2009 9 which are applicable and there is no ground to interfere with the impugned order under appeal.
26. So far as the appeal filed by the respondent no.1/complainant for enhancement of compensation is concerned, no ground is made to enhance the relief awarded by the District Forum.
27. Sequel of above discussion, the appeal filed by the appellant Insurance Company (F.A. No.899 of 2009) is dismissed and the impugned order under appeal dated 04.05.2009 passed by the District Forum is affirmed and upheld. No order as to costs.
28. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal and another sum of Rs.75,000/- vide receipt dated 17.08.2009 in compliance of the order dated July 17, 2009 passed by this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
29. Remaining amount as per the order of the District Forum shall be paid by the appellant to respondent no.1/complainant within 45 days of the receipt of copy of the order.
First Appeal No.847 of 2010:-
30. In view of the reasons and discussion held in First Appeal No.899 of 2009 (National Insurance Company Limited Vs Asha Rani & Anr.), the First Appeal No.847 of 2010 ( Asha Rani Vs National Insurance Company Limited & Anr.) is dismissed. No order as to costs.
31. The arguments in both these appeals were heard on 14.05.2013 and the order was reserved. Now the order be communicated to the parties.
32. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
First Appeal No.899 of 2009 10
33. Copy of the order be placed in First Appeal No.847 of 2010 (Asha Rani Vs National Insurance Company Limited & Anr.).
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member May 24, 2013.
(Gurmeet S)