National Consumer Disputes Redressal
Madhumita Bose vs Hdfc Ergo General Insurance Company ... on 2 February, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 64 OF 2014 (Against the order dated 24.12.2013 in Complaint No. 95/2012 of the State Commission West Bengal) Mrs. Madhumita Bose ........ Appellant(s) Wife of Mr. Sandit Bose r/o 51, Akhil Mistri Lane, Kolkata 700 009 Vs. 1. The Manager ......... Respondent (s) Retail PA Claim Team HDFC Ergo General Insurance Company Limited Of 6th Floor, Leela Business Park Andheri Kurla Road, Andheri (East) Mumbai 400 059 2. HDFC Ergo General Insurance Company Limited Having Local Branch Office At 1, Ho Chi Minn Sarani Metro Towers 10th Floor, Kolkata 700 071 BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER HONBLE MR. SURESH CHANDRA, MEMBER For the Appellant (s) : Mr. Amlan Ghosh, Advocate PRONOUNCED ON : 2nd February, 2015 ORDER
PER SURESH CHANDRA This appeal has been filed by the complainant against the order dated 24.12.2013 passed by the State Consumer Disputes Redressal Commission West Bengal in CC No. 95/2012, by which the State Commission dismissed the complaint filed by the appellant / complainant.
2. The complainants mother Sucheta Bose had obtained an Accident Protection Plan HC policy from the opposite party / insurance company with the coverage upto Rs.
25.00 lakhs for the period from 04.01.2011 to 03.01.2012. As per the allegations in the complaint, the said Sucheta Bose met with an accident on 05.05.2011 and was admitted in Medical College and Hospital with injury at the back of her head. FIR dated 06.05.2011 was lodged. She was shifted from the Medical College and Hospital to Saviour Clinic and then to SVS Marwari Hospital for better treatment.
Unfortunately, the insured died on 16.05.2011 at the SVS Marwari Hospital. The opposite parties were informed of the death of the insured. The complainant / appellant being the nominee, submitted the claim form alongwith necessary documents. Inspite of several e-mails between the complainant and the opposite party, the claim was not settled, which led to the complainant sending an Advocates notice dated 03.04.2012 urging upon the opposite party to settle the claim without further delay. Vide their letter dated 21.05.2012, the opposite party intimated that the claim did not fall within the policy coverage because the death was not as a result of accidental injuries. By that time the Claims Settlement Commissioner and Director, Public Vehicles Department, Kolkata had passed an order for payment of a sum of Rs.25,000/- for the accidental death of Sucheta Bose. The complainant also approached the Insurance Ombudsman, who vide his letter dated 11.06.2012 showed his inability to admit the complaint because the claim of Rs.25.00 lakhs was beyond the financial limit of the Insurance Ombudsman. Ultimately, the complainant knocked the door of the consumer forum by filing a consumer complaint before the State Commission praying for direction to the opposite parties to make payment of Rs.25.00 lakhs alongwith interest @ 18% p.a. besides compensation of Rs.10.00 lakhs for harassment and mental agony and the litigation cost of Rs.50,000/-.
3. On being noticed, the opposite parties contested the complaint by filing its written version contending interalia that although the insured had obtained an insurance policy covering risk of accidental death and had expired on 16.05.2011, no external grievous injuries had been noted in respect of the deceased person either in the treatment case papers or at the time of conducting the post mortem and hence the opposite parties did not accept the death to have occurred on account of accidental injuries. It was also pointed out by the opposite parties that the treatment documents had not been produced by the complainant and in the absence thereof, the allegation of death due to accident could not be proved conclusively by the post mortem or any other document. Denying any deficiency in service on their part, the opposite parties prayed for dismissal of the complaint.
4. Both the parties led evidence in support of their case before the State Commission. It was contended that injured suffered head injury in an accident during the validity period of the policy. After submission of the insurance claim, the opposite parties had asked for several documents which were furnished by the complainant such as police FIR, post mortem report, police chargesheet. The post mortem report, according to the complainant, described the cause of death as Cerebral Odema which is sort of internal brain haemorrhage. It was also submitted that the Government Department i.e. Claims Settlement Commissioner and Director, Public Vehicles Department had accepted the fact of hit and run and accidental death and granted compensation of Rs.25,000/-. It was argued on behalf of the complainant that cause of death was accidental injury and the insurance company never disagreed in their written version that the insured expired because of the accidental injury. It was, therefore, submitted that there was clear deficiency in service on part of the opposite parties and more so because of the fact that though the cause of death was not described otherwise, the opposite parties / insurance company arbitrarily repudiated the insurance claim. The complainants counsel placed reliance on the judgments of the Apex Court reported in Rita Devi (Smt) & Others Vs. New India Assurance Co. Ltd. & Another (2000) 5 SCC 113 & Life Insurance Corporation of India & Others Vs. Asha Goel (Smt.) & Another (2001) 2 Supreme Court Cases 160 and submitted that the opposite party / insurance company had repudiated the claim in this case in a very mechanical and routine manner, which shows deficiency in service on their part. According to the submissions made by the complainant, the death by accident had been established from every angle.
5. On the other hand, the case set up on behalf of the opposite party was that though the insured had met with an accident by a fall from the bus and allegedly sustained head injury and was taken home and then to Medical College and Hospital but there was no bleeding or stitch. It was not intimated whether she was treated continuously at the Saviour Clinic from 06.05.2011 to 12.05.2011. As per the record produced, she was admitted in SVS Marwari Hospital on 13.05.2011 and expired on 16.05.2011, which indicates that insured was alive for 11 days after the alleged incident and underwent medical treatment either at home or in the hospital. It was also submitted on behalf of the opposite party that medical records like admission sheet, bed head ticket, discharge sheet, pathological report had been seized by the police and could not be produced nor was the police investigation report submitted. The post mortem report showed that externally there was no internal injury mark detected. It was also argued that the insured did not die immediately after the accident and as such the death was not instataneous.
The CT scan report taken out on the date of accident also shows no internal damage. The post mortem report indicates multiple end organ failure and damage. It was the contention of the opposite party that it was not made known as to whether there was any treatment for head injury (external or internal) or whether she was treated for other ailments which she might have been suffering from and whether such ailment was the ultimate and actual cause of death. In the absence of entire medical treatment record and the police investigation report, there was no conclusive proof to establish that the death was caused by head injury as claimed by the complainant. The author / doctor of the post mortem report was not produced for cross examination and as such the report could not be relied upon. It was further submitted on behalf of the opposite party that according to their opinion, the insured was suffering from epilepsy and was treated for that in SVS Marwari Hospital and there she expired suddenly choking while she was eating.
This fact has been narrated in the investigation report submitted by the investigator. Learned counsel for the opposite party / insurance company submitted that the terms of contract between the insurer and the insured have to be relied upon and nothing can be added or altered to suit the purpose of either of the contracting parties. Since the complainant could not furnish any proof that the death of the insured was solely because of alleged accident or independently of any other cause, the claim could not be allowed and as such there is no deficiency in service committed by the opposite party / insurance company and as such the complaint was liable for dismissal.
6. The State Commission after appraising the evidence placed before it by the parties and after hearing them, dismissed the complaint. Aggrieved by the said order, the complainant / appellant has filed this appeal against the impugned order of the State Commission.
7. We have heard Shri Amlan Ghosh, Advocate for the appellant and perused the record.
8. In her memo of appeal, the appellant has challenged the impugned order on several grounds which may be noted thus:
I. For that the State Forum has treated the claim case of the petitioner in a light hearted and casual manner in as much as it has ignored the findings of claims Settlement Commissioner, Director Public Vehicles Department, Kolkata passed an order for payment of a sum of Rs.25,000/- for accidental death of Sucheta Bose.
II. For that the State Forum has ignored the documentary proof of the facts so produced by the petitioner that the deceased was treated in Saviour Clinic from 6.5.2011 to 12.5.2011 payment receipt of continuous hospitalization and the deceased went from Saviour Clinic to SVS Marwari Hospital from 13.5.2011 to the date of her expiry on 16.5.2011 is a continuous medical treatment which is clearly on record.
III. For that the State Forum ignored the fact that since the deceased immediately she was taken to Medical College and Hospital on 5.5.2011.
IV. For that despite all the detailed medical treatments records like admission sheet, bed head to diet discharge sheet and pathological reports being seized by the police was not produced, neither the police investigation report submitted, accordingly the State Forum is wrong in giving a finding without these vital documents which are not in possession at that time with the complainant.
V. For that the medical officers report of SVS Marwari Hospital of 4.6.2011 was disbelieved without any valid reason when he certified that the cause of death of the insured was cardio-respiratory failure in a case of (post) head injury.
VI. For that the findings of the State Forum is one sided and without allowing the claimant to contest the claim on the basis of recorded documents which were not being produced by the police before the forum.
VII. For that this Forum may give an appropriate findings based on medical reports seized by the police and police investigation report / alternatively direct the State Forum to give its findings based on those medical reports and police investigation.
9. Learned counsel for the appellant has contended that the impugned order is misconceived and reflects non application of mind on the part of the State Commission. Keeping in view the grounds mentioned in the memo of appeal, he contended that the impugned order cannot be sustained in the eye of law and is liable to set aside.
10. We have considered the contentions raised by learned counsel for the appellant. The State Commission while dismissing the complaint has made the following observations:
There is no dispute that the Complainant obtained an Accidental Protection Plan / HC policy from the OPs. which was valid between 24.01.2011 and 03.01.2012 with the coverage up to Rs.
25,50,000/- upon payment of premium of Rs. 4,798/- . There is also no dispute that the insured Sucheta Bose being the mother of the Complainant met with an accident by fall from a bus which was reported to the Police. The insured having died on 16.05.2011 the OPs were informed of the accidental death . Claim was lodged and as per requirement of the OPs, necessary documents were submitted . The claim not being settled over a period of 10 months , Advocates notice was issued on 03.04.2012. The OPs vide their letter 20.04.2012 (Paragraph 3) stated that all the medical treatment papers inclusive of discharge summary of hospitals wherein deceased had undergone for medical treatment were not received and finally the OPs in their letter dated 21.05.2012 repudiated the claim of the Petitioner that in the absence of treatment documents in support of accidental injuries , the claim was found to have not fallen within the policy coverage. From a careful perusal of the vital documents, namely, FIR, Postmortem report, injury report (Police Case) noted on 05.05.2011 at 18.55 by Medical College and Hospital , it appears that the term Head Injury has been used but in none of those documents the description of the head injury was given in any manner. How fatal was the injury and whether such injury was so grievous as to cause the death of the insured were not made clear with convincing evidence . Moreover, what remedial measures were taken by the concerned doctor / hospital for treating the injury was not available or understood from the said documents. In this connection , the CT Scan report is very clear that there was no injury or haemorrhage . Such CT Scan report was made immediately after the accident and such report is very important in deciding the present case.
It appears that in deciding the FA No. 763 of 2007 Honble National Commission not being shown the entire medical record of the treatment of the deceased insured sent back the case to the State Commission for fresh adjudication on the basis of production of entire medical record. In their order in Civil Appeal No. 994 of 1972 , D/-27-10-1993, Honble Apex Court held that withholding of vital document relevant to litigation is a fraud on court. It appears that the Complainant has not come in clear hands about the treatment of the insured while in hospital or at home during the period from 06.05.2011 to 13.05.2011. It was on 13.05.11 that the insured was admitted in SVS Marwari Hospital and the insured expired on 16.05.2011. The medical officer of SVS Marwari Hospital on duty in his report dated 16.05.2011 mentioned that the patient expired at 4.35 hours . No specific cause of death of the insured was recorded therein. It was at a much later date, i.e., on 04.06.11 that it was certified by the SVS Marwari Hospital authority that the cause of death of the insured was cardio respiratory failure in a case of (Post) head injury .
The Complainants averment that payment of compensation by the Claims Settlement Commissioner on the ground of death of the insured does not establish the fact that the death of the insured was solely by the accident and independently of other cause as laid down in the policy terms . We are unable to go by the submission put forward on behalf of the Complainant. In the said circumstances we are of the considered view that the complaint has no merit and is liable to be dismissed.
11. We may note that the State Commission has passed a speaking order based on the evidence placed before it by the parties.
It has to be appreciated that policy in question issued by the opposite party itself provides table of benefits which may be reproduced thus :
HDFC Ergo General Insurance Company Limited Accidental Protection Plan HC Policy Number 50551645/00001
1.Name & Address of the Policy Holder Sucheta Bose 51 Akhil Mistri Lane Kolkata West Bengal 700009 Mobile 9007776263
2. Policy Period :
Effective Date : 04/01/2011 :
Expiry Date : 03/01/2012
3. a. Any One Life Limit :
Rs.2,550,000.00 b. Family Accumulation Limit : Nil
4. Operative Time : 24 Hours
5. Territory of Insured : Worldwide
6. Insured Person:
Name of Insured Person Category of Insured Person Date of Birth Age (Yrs.) Name of Beneficiary Relationship with Insured Benefit (%) Sucheta Bose Self 22/10/1952 58 Madhumita Bose Child 100
7. Premium :
Premium Frequency : Yearly Total Yearly Premium (Inclusive of Service Tax : Rs.4,758.00 and 2% Education Cess)
8. Table of Benefits for Self with Hospital Cash Rs.2,500,000 Plan Benefit Sum Insured (Rs.) Accidental Death 2,500,000.00 Permanent Disablement Table B 2,500,000.00 Hospital Cash- Accident Only Amount payable per day Maximum No of days payable 30 days 1,000.00 Broken Bones 50,000.00 Last Rites Cost-Accident Only 7,500 Temporary Total Disablement Maximum No. of weeks payable-52 weeks Deducible 1 week 5,000.00 Subject otherwise to the terms, exclusions and conditions of the Policy.
Consolidated stamp duty for this Insurance Policy is paid by Demand Draft vide Receipt/Challan No. dated as prescribed in Government Notification Revenue and Forest Department No. Mudrank 2004/4125/CR 690/M-1 dated 31/12/2004.
Agent Code : 201587086428 Agent Name : HDFC Bank CC Health Phone No. : 022-2856188 Signed for and on behalf of the HDFC ERGO General Insurance Company Limited at Mumbai on
12. Coverage of Rs.25.00 lakhs has been provided on account of accidental death as also on account of permanent disablement Table B. In the present case, the claim of the complainant was for the accidental death. Before the claim could be admitted by the insurance company, it was incumbent on the part of the complainant to provide proof to establish that the death was accidental. No doubt, as per the allegation, which has not been disputed, the insured person fell from the bus which obviously would constitute an accident but as rightly held by the State Commission, it could not be established that the cause of death of the insured was the injury caused by the accident. This aspect is required to be established by clear evidence and the plea taken by the appellant to the effect that Settlement Commissioner of the State Government had sanctioned payment of Rs.25,000/- on account of death of the insured by the accident, cannot provide necessary proof to establish the fact that the death of the insured person could actually be attributed to the accident and the injury caused in that accident, since there was a gap of 11 days between the accident and the death. Under these circumstances, we do not find any basis on which the finding of the State Commission can be faulted with. We, therefore, dismiss the appeal and uphold the order passed by the State Commission but with no order as to costs.
Sd/-.
(V.B.GUPTA) ( PRESIDING MEMBER) Sd/-
(SURESH CHANDRA) MEMBER Am/