Delhi District Court
Neeti Virmani vs Universal Sompo Gic Ltd on 26 March, 2024
1
In the Court of Dig Vinay Singh, District Judge (Commercial Court)-03,
West, Tis Hazari Extension Building, Delhi
In re:
CS (COMM) 627/2023
CNR No. DLWT01-006835-2023
Neeti Virmani
W/o Late Chander Kishore Virmani
R/o BE-276, 2nd Floor,
Street No.5, Hari Nagar,
Delhi - 110064 ...... Plaintiff
Vs.
Universal Sompo GIC Ltd.
Unit No. 903 & 904, 9th Floor, GDITL Tower,
Netaji Subhash Place,
PitamPura, New Delhi - 110034 ..... Defendant
Date of institution : 22.08.2023
Date of arguments : 15.03.2024
Date of judgment : 26.03.2024
JUDGMENT
1. This is a suit for recovery of ₹12,20,203/- (₹Twelve Lakh Twenty Thousand Two Hundred Three), which comprises of principal sum of ₹10 Lakhs (₹Ten Lakh) and interest of ₹2,20,603/- (₹Two Lakh Twenty Thousand Six Hundred Three) for the pre-suit period calculated @ 12% per annum from 02.05.2022 till the date of filing of the suit. The dispute between the parties is a commercial dispute within the definition of Sec. 2(1)(c)(xx) of the Commercial Courts Act, 2015 (CCA). Pre-litigation mediation between the parties remained unsuccessful vide non-starter report dated 25.07.2023 of the concerned District Legal Services Authority.
2. The sole defendant, i.e. the insurance company, remained ex-parte in the suit.
Judgment dated 26.03.2024; CS (COMM) 627/2023 CNR No. DLWT01-006835-2023 Neeti Virmani Vs. Universal Sompo GIC Ltd. Page 1 of 11 2
3. Brief facts of the case are that the plaintiff is the widow of late Chander Kishore Virmani. The deceased had a savings bank account with Indian Overseas Bank and there was a Group Insurance of the deceased since the year 2019 covering his personal accidental risk. The premium used to be deducted by the bank from the account of the deceased. It is claimed by the plaintiff that no policy or any terms & conditions were issued by the bank or the insurer (defendant). It is averred in the plaint that on 06.11.2020 the deceased fell in the bathroom and sustained serious head injuries. When he was taken to a nursing home, he was declared brought dead. Thereafter, the plaintiff raised a claim of the insurance amount with the defendant through the bank, but the defendant repudiated the claim. Plaintiff states that all documents required were submitted to the defendant except the FIR and the post- mortem report, but the defendant insisted upon FIR and the post- mortem report and on account of non-submission of the same, repudiated the claim. As per plaintiff, since the deceased died because of accidental fall at home and no cognizable offence arose, therefore no FIR was lodged and the doctors never advised the plaintiff for post- mortem of the deceased so post-mortem was also not conducted. Plaintiff claims that as per the policy of the defendant, the FIR and post- mortem report were not mandatory and therefore defendant could not have repudiated the claim. Yet the defendant repudiated the claim vide letter dated 28.09.2021 and it was reiterated vide another letter dated 21.04.2022. Thus the suit.
4. Summons were sent to the defendant and the defendant was served on 06.10.2023 through the process server. Additionally, as per the tracking reports of Speed Post and Registered AD envelope containing summons sent to the defendant, the defendant stood served on 20.09.2023. The Judgment dated 26.03.2024; CS (COMM) 627/2023 CNR No. DLWT01-006835-2023 Neeti Virmani Vs. Universal Sompo GIC Ltd. Page 2 of 11 3 defendant however never appeared in the suit and never filed its written statement. From the date of first service of the defendant i.e. 20.09.2023, period of 120 days expired on 17.01.2024. No written statement was filed on record. In fact, no written statement came on record till now. Law is well settled that in a commercial suit beyond 120 days from the date of service the defendant is left with no right to file written statement under any circumstances and upon expiry of 120 days from the date of service, the right of defendant to file written statement stands automatically closed. In this regard one may place reliance upon the case of SCG Contracts India Private Limited Vs. K.S. Chamankar Infrastructure Private Limited & O₹ 2019 (12) SCC 210. Since nobody appeared for the defendant, the defendant was proceeded ex-parte on 22.12.2023.
5. Nevertheless, the plaintiff was asked to lead ex-parte evidence in the matter and the plaintiff examined herself as PW1 by tendering her evidence Ext. PW1/A, reiterating the averments of the plaint. She relied upon the documents Ext. PW1/1 to 1/17 viz., pass book of the concerned savings bank account of the deceased Ext. PW1/1; copy of insurance policy certificate Ext. PW1/2; Aadhar Card of the deceased Ext. PW1/3; Aadhar Card & PAN Card of the plaintiff Ext. PW1/4 & 5 respectively; claim form Ext. PW1/6; Bank Account Mandate Credit for Direct Credit Ext. PW1/7; death report Ext. PW1/8; death certificate Ext. PW1/9; letter dated 09.08.2021 written by the defendant to the plaintiff Ext. PW1/10; e-mails dated 16.04.2022 & 22.04.2022 sent by the defendant to the plaintiff Ext. PW1/11 & 1/12; complaint lodged by the plaintiff before the concerned Insurance Ombudsman Ext. PW1/13; Order of Ombudsman dated 21.11.2022, rejecting the claim of the plaintiff as Ext. PW1/14; rejection letter dated 28.09.2021 Judgment dated 26.03.2024; CS (COMM) 627/2023 CNR No. DLWT01-006835-2023 Neeti Virmani Vs. Universal Sompo GIC Ltd. Page 3 of 11 4 Ext. PW1/15 and; another rejection letter dated 21.04.2022 Ext. PW1/16.
6. No other witness is examined.
7. I have heard Ld. Counsel for the plaintiff. It is argued on behalf of the plaintiff that the sole defendant chose not to file any written statement and not to contest the case and therefore the averments of the plaintiff in its plaint and deposition of PW1 have remained unrebutted and uncontroverted. It is also claimed that all necessary documents have been proved on record by the plaintiff and therefore the suit may be decreed.
8. It is plaintiff's own case that the concerned insurance of the deceased was regarding accidental death and not for death due to any other reason. Perusal of the insurance policy Ext. PW1/2 reveals that it is a group personal accidental insurance. The coverage under the insurance is specifically mentioned to be personal accident and the coverage was only regarding accidental death with sum insured as ₹10 Lakh. Ext. PW1/2 is a policy for the period 22.04.2021 till 13.04.2022, whereas the date of death of the deceased is 06.11.2020. The plaintiff did not prove the policy/certificate of insurance qua the relevant year of death, but the said shortcoming is not given any undue weightage for the reason that in the letter dated 09.08.2021 Ext. PW1/10 issued by the defendant to the plaintiff, it is mentioned that there was another policy existing between 14.04.2019 to 13.04.2020 and between 14.04.2020 till 13.04.2021. Therefore, it is clear that as on the date of the death of the deceased, there was an effective policy existing and in force.
9. Plaintiff's case is that the deceased fell in the washroom and sustained head injuries and then died. Admittedly, there is no eye witness to the incident of fall. Perusal of the medical certificate Ext. PW1/8 issued by Judgment dated 26.03.2024; CS (COMM) 627/2023 CNR No. DLWT01-006835-2023 Neeti Virmani Vs. Universal Sompo GIC Ltd. Page 4 of 11 5 the concerned Nursing Home namely Paul Nursing Home and Child Care Centre dated 06.11.2020 reveals that it is a death report. It states that the deceased Chander Kishore Virmani, aged 67 years, male, was brought dead to the hospital with the history of fall in bath room in the morning of 06.11.2020 at about 9.30 AM. The cause of death mentioned in this document is "head injury and Cardio Pulmanory Arrest".
10. There is not even a word mentioned in the medical certificate/death report that the fall of the deceased was because of accident reasons. It is not mentioned therein that the deceased first fell in the bathroom and then sustained head injuries or that thereafter the Cardio pulmonary arrest of the deceased occurred. Though, in the argument, plaintiff's counsel claimed that because of fall resulting into head injury and consequent loss of blood, the cardiac pulmonary arrest occurred, but the said claim is not supported with any medical document. No doctor has been examined by the plaintiff in her favour. It can well be a case where the deceased suffered cardiac pulmonary arrest resulting into his fall in the bathroom which further resulted into head injury. It is nobody's case that anybody saw the deceased actually falling or suffering the heart attack. No such averment exists in the plaint.
11. The concerned doctor of the nursing home did not prepare any Medico Legal Certificate and did not specify whether the death was because of head injury or it was because of cardiac pulmonary arrest, therefore, it can well be a case where because of the cardiac arrest the deceased fell in the bathroom and sustained head injury and it is nobody's case that the deceased first fell accidentally resulting into head injury or the consequent cardiac arrest. When a plaintiff approaches a Court of Law with a particular set of facts in support of its plaint, the onus to prove Judgment dated 26.03.2024; CS (COMM) 627/2023 CNR No. DLWT01-006835-2023 Neeti Virmani Vs. Universal Sompo GIC Ltd. Page 5 of 11 6 those facts is on the plaintiff. The plaintiff cannot leave the Court guessing or do the guess work for the plaintiff in that regard.
12. It is argued on behalf of the plaintiff that as per repudiation letter Ext.
PW1/15 the reason for repudiation was non-filing of original FIR and the post-mortem report only. It is claimed that therefore the plaintiff was supposed to give those two documents, which were not executed in the present matter being unnecessary and therefore the defendant cannot even claim that the death of the deceased was not due to accident. There is no force in this argument for the simple reason that whether or not FIR was there and whether or not post-mortem report was there, it is the cause of death which would have enabled the plaintiff to seek insurance. When the insurance was covering only accidental death, it was incumbent on the plaintiff to have proved the said reason for the death. Had the plaintiff proved that the death occurred because of accident, even without there being any FIR or post-mortem report, the plaintiff could have succeeded in the present suit. But then, it is a case where as per the death report the cause is mentioned as head injury and cardiac pulmonary arrest.
13. Therefore, the prime condition seeking invoking of the insurance, lacks in the present matter. Even the insurance Ombudsman gave following observations while rejecting the claim of the plaintiff :-
"The complainant reiterated that her late husband Chander Kishore Virmani had sustained head injury and excessive loss of blood following a fall in the bathroom of their residence. She also stated that the proof of accident has been submitted to the Insurer. The Insurers, however contended that they require conclusive evidence such as FIR or a post- mortem report for an accidental death claim. The death report of Dr Pankaj Paul of Paul Nursing Home certifies that deceased was brought dead to the hospital. Though the report states the cause of death as head injury and cardio pulmonary arrest, no MLC was made by the hospital. There is no post-mortem report to confirm the cause of death as accident. Judgment dated 26.03.2024; CS (COMM) 627/2023 CNR No. DLWT01-006835-2023 Neeti Virmani Vs. Universal Sompo GIC Ltd. Page 6 of 11 7 As no conciliation was reached between the parties, the award is made under Rule 17 of the Ombudsman Rules, 2017. The Insurers are justified in repudiating the claim."
14. Ext. PW1/2 reveals that there was some master policy containing the terms & conditions, besides the terms & conditions contained in Ext. PW1/2. That master policy containing the detailed terms & conditions have not been proved and no steps have been taken by the plaintiff to prove the master policy under which the insurance was undertaken.
15. The argument of the plaintiff that under Ext. PW1/2 there was no term or condition that FIR or post-mortem report was mandatory, looses significance for the matter that when master policy and the policy for the relevant period between April 2020 to April 2021 has not been proved, the plaintiff cannot be permitted to rely merely on the policy Ext. PW1/2 which is for a different period of April 2021 to April 2022.
16. The plaintiff did not take any steps to prove even the detailed terms & conditions of the said group insurance by summoning as witness anyone from the insurance company or the bank during evidence. Although, the plaintiff gave a notice Under Order 12 Rule 8 CPC dated 26.11.2023 to the defendant, which is Ext. PW1/7 and which notice did not evoke any response, yet the plaintiff could have proved the requisite master policy by summoning relevant witness from the office of the defendant or the bank concerned. But the plaintiff did not do it. One of the term & condition in the insurance policy Ext. PW1/8 is that the claim has to be initiated with the insurance company (defendant) within maximum one calendar month from the date of death, and the documents should be submitted within 90 days with insurance company or the bank. In the present matter, the claim form Ext. PW1/6 does not mention the date when it was submitted. Assuming that it was submitted within the Judgment dated 26.03.2024; CS (COMM) 627/2023 CNR No. DLWT01-006835-2023 Neeti Virmani Vs. Universal Sompo GIC Ltd. Page 7 of 11 8 stipulated period, or even if one has to condone the delay in filing of the claim form, one of the necessary requirement to invoke the insurance regarding the nature of death being accidental death is lacking in this suit.
17. Plaintiff relies upon the cases of New India Assurance Company Ltd.
Vs. Jatinder Kumar Sharma II (2013) CPJ 486 (National Commission):
Ajmeri Khatun Vs. National Insurance Company Ltd. & O₹ I (2015) CPJ 501 (National Commission): Oriental Insurance Company Ltd. Vs. Milind Harit & O₹ IV (2019) CPJ 166 (National Commission) and; the case of Kunverben Vajabhai Natada vs. Cholamandalam MS General Insurance Company IV (2019) CPJ 49 (National Commission).
18. Reliance placed by the plaintiff upon the case of Kunverben (Supra) is misplaced. In that case, despite the fact that the death of the insured occurred due to accidental injuries when his motorcycle struck against an animal, the insurance company had repudiated the claim stating that the death was natural. It was noted that even the treating doctor had given a certificate that the death was accidental death and the treating doctor also tendered his affidavit before the concerned District Forum. In such circumstances, it was held that when once it is proved that the death occurred due to injuries sustained in the accident, the claim could not have repudiated. The said judgment is therefore distinguishable on the facts.
19. Similarly, reliance placed by the plaintiff upon the case of Oriental Insurance Company Ltd. Vs. Milind Harit & Ors. (Supra) is misplaced. Even in that case the death of the insured occurred because of injury suffered by the injured when he fell down from the stairs and therefore it was termed as an accidental death.
Judgment dated 26.03.2024; CS (COMM) 627/2023 CNR No. DLWT01-006835-2023 Neeti Virmani Vs. Universal Sompo GIC Ltd. Page 8 of 11 9
20. Similarly, Ajmeri Khatun Vs. National Insurance Co. Ltd. (Supra) is distinguishable. In that case, because of the snake bite the death of insured occurred and it was held by the Court to be an accidental death for which usually no post-mortem examination was conducted and therefore the claim of the legal heirs of insured was allowed.
21. Similarly, the case of New India Assurance Co. Ltd. Vs. Jatinder Kumar Sharma (Supra) is distinguishable. In that case also there was no dispute that the insured sustained injuries on account of accident and therefore it was held that once it is established that the insured died because of accident, merely because no FIR was lodged, cannot be a ground to repudiate the claim.
22. Whereas, in the present case the plaintiff did not choose to examine the doctor who examined the insured. In the medical certificate proved by the plaintiff on record, though head injury is mentioned, but it is not even mentioned as to whether that head injury was 'Simple', 'Grievous' or 'fatal'. The measurements of head injury such as the depth of the wound, length and breadth of the wound or whether it was contusion or abrasion, etc. is not mentioned. It is also not mentioned that the said head injury caused the death of the insured. It is also not mentioned that whether the said head injury was capable of causing death of the insured. It is also not mentioned whether the death occurred because of heart attack or head injury or any other reason. It is also not mentioned as to whether the cardiac arrest occurred prior in time to the fall or it occurred after it. In such circumstances, the plaintiff ought to have examined some medical expert/doctor who examined the insured in the nursing home.
Judgment dated 26.03.2024; CS (COMM) 627/2023 CNR No. DLWT01-006835-2023 Neeti Virmani Vs. Universal Sompo GIC Ltd. Page 9 of 11 10
23. Even if this Court does not give any importance to the non-filing of the post-mortem report or the FIR, yet the plaintiff cannot escape from the fact that the onus was on the plaintiff to have proved its case.
24. Even though the defendant remained ex-parte in the present matter, the onus on the plaintiff does not get reduced in any manner. Even in an ex- parte matter, the plaintiff is bound to prove its case to the satisfaction of the Court even though on the touch stone of preponderance of probability. Once this matter was fixed for leading of evidence of the plaintiff, the plaintiff was bound to prove its case and the documents legally. Merely because a defendant remains ex-parte, it cannot absolve a plaintiff from proving its case or reduce the burden on the plaintiff. Even in an ex-parte case Court has to take good care to see that the plaintiff's case is prima facie proved. Mere absence of the defendant of a case does not justify the presumption that the whole of the plaintiff's case is true. It is no doubt the practice that no issues are framed in such cases, but that does not absolve the plaintiff of his responsibility to prove his case. The plaintiff in bound to prove his case to the satisfaction of the Court and his burden is not lightened merely because the defendant is absent. It is the duty of the plaintiff, to produce all such evidence as he considers will prove his case. While the ex- parte evidence is being recorded it is for the plaintiff to decide as to what should be the kind and extent of evidence which will satisfy the Court for holding that his claim deserves to be decreed. He must adduce all such evidence which, under any circumstance, should satisfy the Court that his claim is genuine and deserves to be decreed. (Reliance; Nagar Palika Nigam v. Motilal, 1977 SCC OnLine MP 19)
25. Reliance placed on the affidavit in a blindfold manner by the court merely on the ground that the defendant had failed to file the written Judgment dated 26.03.2024; CS (COMM) 627/2023 CNR No. DLWT01-006835-2023 Neeti Virmani Vs. Universal Sompo GIC Ltd. Page 10 of 11 11 statement would amount to punitive treatment of the suit and the resultant decree would amount to decree which would be nothing short of a decree which is penal in nature. (Reliance; C.N. Ramappa Gowda v. C.C. Chandregowda, (2012) 5 SCC 265)
26. In the present case the plaintiff miserably fails to prove the basic requirement that the death of insured was due to accident and not any other reason. Accordingly, in the considered opinion of this Court, the plaintiff fails to prove its case against the defendant and the suit is dismissed. No order as to the cost. Decree sheet be prepared accordingly.
27. A copy of the judgment be supplied to the plaintiff as well as the defendant through electronic modes in compliance of Order 20 Rule 1(1) of CPC. File be consigned to the record room.
Announced in the open Court on 26th day of March 2024.
Digitally DIG signed by DIG VINAY SINGH VINAY Date:
2024.03.26 SINGH 14:09:15 +0530 Dig Vinay Singh District Judge (Commercial Court)-03, West, Tis Hazari, Delhi (r) Judgment dated 26.03.2024; CS (COMM) 627/2023 CNR No. DLWT01-006835-2023 Neeti Virmani Vs. Universal Sompo GIC Ltd. Page 11 of 11