State Consumer Disputes Redressal Commission
Harpal Singh vs Bajaj Allianz General Insurance on 10 April, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.199 of 2014
Date of institution : 10.11.2014
Date of decision : 10.04.2017
1. Harpal Singh son of Sh. Bhagwan Singh;
2. Harjot Singh S/o Harpal Singh (minor) through his natural
guardian Harpal Singh;
Both residents of Village Dandrala Kharoud, P.O. Dakaunda,
Tehsil Nabha, District Patiala.
....Complainants
Versus
1. Bajaj Allianz General Insurance Co. Ltd., through its M.D., G.E.
Plaza, Airport Road, Yerwada, Pune (Maharashtra).
2. Bajaj Allianz General Insurance Co. Ltd., through its Branch
Manager, office at SCF 12-13, Second Floor, Gurudwara
Dukhniwaran Sahib Market, Patiala.
....Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member
Present:-
For the complainants : Sh. A.K. Sharma, Advocate For the opposite parties : Sh. Vishal Aggarwal, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
The complainants have filed this complaint, under Section 17 of the Consumer Protection Act, 1986.
2. Brief facts, as set out in the complaint, are that Jaswant Kaur (wife of complainant No.1 and mother of complainant No.2) purchased the "Generic Contingency Policy Schedule" in the year 2009 for three years, vide policy No.OG-13-1214-6401-00000357. Again the said policy was extended from 04.08.2012 to 03.08.2015. Smt. Consumer Complaint No.199 of 2014 2 Jaswant Kaur paid premium of ₹6,548/- to the opposite parties for the welfare of her family members, in case of any mis-happening or accidental death. She was self employed; as she, along with her husband, was doing the business of milk collection/selling in the villages. The Punjab Government issued licence to her, as per the standards fixed by the Food Safety and Standards Authority of India. She was also filing income tax returns and was having the PAN number. On 26.06.2014, complainant No.1 came to his house after collecting the milk from the villages and was shocked to see that his wife had fallen down on the floor and was injured. He called the doctor, who was practicing in the village for the last so many years. In the meantime, other respectables of the village i.e. Lambardar, Sarpanch and other persons also reached at the spot. Dr. Dharam Pal Sharma declared Smt. Jaswant Kaur dead, due to head injury. The deceased was cremated and to show the cause of death, death certificate has been annexed. Smt. Jaswant Kaur died on 26.06.2014 and entry regarding her death was made in the records of Registrar of Births and Deaths, Punjab on 28.06.2014. In the month of July, 2014, the complainant lodged the claim with the opposite parties, as per the policy. The opposite parties appointed Dr. Jagroop Singh, as Investigator, to investigate the matter and the complainant submitted the relevant documents to him. The investigator after making inquiry from Dr. Dharam Pal Sharma and other residents of the village, submitted his report. Dr. Dharam Pal Sharma, is authorized to practice by Punjab Board of Ayurvedic & Unani System of Medicine, Punjab, Chandigarh. He also gave his affidavit, specifically mentioning that the Consumer Complaint No.199 of 2014 3 death of the deceased was due to catastrophic brain injuries. The complainant received letter dated 20.09.2014, Annexure C-9, from the opposite parties, wherein it was mentioned that "there is no "First Information Report" and no "Postmortem Report", due to which the exact cause of death could not be ascertained. Hence, the claim is not admissible". The complainant sent legal notice dated 30.09.2014 Annexure C-10 to the opposite parties for payment of claim, but to no effect. The claim of the complainant was declined wrongly and illegally. The act and conduct of the opposite parties amounted to deficiency in service, due to which the complainants suffered mental agony and harassment. Accordingly, they sought the following directions to the opposite parties:
i) to pay claim of ₹25,00,000/-, as mentioned in the policy, on account of death of Smt. Jaswant Kaur in the said accident;
ii) to pay ₹1,00,000/-, as compensation;
iii) to pay ₹20,000/-, as litigation expenses.
3. Upon notice, opposite parties appeared and filed reply to the complaint, taking preliminary objections that the complaint is not maintainable, as it is based on concealment of facts and misrepresentation. The complainants have concocted the story. Insured Jaswant Kaur died at home itself, having fallen down due to which injuries were caused on her head. The claim is not covered under the policy and has been rightly repudiated. The doctor, who declared the insured dead, is a Vaid/Hakim registered with the Board of Ayurvedic and Unani Systems of Medicine. His report is not valid. The cause of death has not been specified, as there is no certificate, Consumer Complaint No.199 of 2014 4 nor FIR or postmortem report. There is nothing on record to prove that the insured died due to accidental injuries. On merits, the opposite parties did not dispute that the policy, as mentioned in the complaint, was obtained by the insured. It was pleaded that no one was present in the house, when the insured fell down and the death could be due to some massive heart attack or stroke. The alleged doctor is only RMP and, thus, his certificate is of no consequence. Even otherwise, without conducting the postmortem, the exact cause of death cannot be ascertained. The opposite parties invoked clause D4 of the policy, while repudiating the claim of the complainants. It was further pleaded that the claim has been rightly declined and there is no deficiency in service on their part. Accordingly, dismissal of the complaint was prayed.
4. To prove their case, the complainants tendered affidavit of Sh. Harpal Singh, complainant No.1 as Ex.C-1, along with other affidavits Ex.C-2 to Ex.C-5. On the other hand, opposite parties tendered affidavit of Sh. Navjeet Singh, Sr. Executive Legal Ex.R-1, along with documents Ex.R-1/A and Ex.R-1/B.
5. We have heard learned counsel for the parties and have gone through the record carefully.
6. Learned counsel for the complainants vehemently contended that no FIR or postmortem is required to prove the accidental death. In the conditions of the policy, it is mentioned that if any FIR is lodged, only then the same is required to be produced and the postmortem is required to be produced, only if the same is conducted. These documents are not mandatory to be produced while Consumer Complaint No.199 of 2014 5 settling the claim. In this regard, he relied upon the judgment of the Madhya Pradesh State Commission in case Life Insurance Corporation of India v. Vaijayanti Bai 2005 (2) CPJ 445, in which the said State Commission relied upon its own decision given in New India Assurance Co. Ltd. v. Ramkushal Kushwaha (Appeal No.1297 of 2001, dated 18.12.2002), wherein it has been held that non-production of First Information Report, postmortem report and final report would not mean that death was not due to injuries received in accident. He further relied upon the judgment of the Hon'ble Andhra Pradesh High Court in case Bashapaka Laxmaiah & Another v. State of A.P. 2001 (4) CCR 278, wherein the report of RMP doctor regarding the cause of death was accepted. In the present case, the doctor was RMP only and he can very well tell about the cause of death, after examining the body of the dead person. The claim of the complainants was wrongly repudiated. They are entitled to the insurance claim under the policy, along with compensation.
7. Per contra, learned counsel for the opposite parties vehemently contended that there is no postmortem report or FIR in this case and in the absence thereof, the cause of death cannot be ascertained. Statement of Dr. Dharampal Sharma cannot be accepted, as he is only a RMP doctor. He was not a qualified person and was only authorized to practice by the Board of Ayurvedic and Unani Systems of Medicine, Punjab. The claim of the complainants was legally and validly repudiated. There is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed. Consumer Complaint No.199 of 2014 6
8. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties.
9. The following two material questions are required to be decided in this case:
i) Whether the certificate/affidavit of the doctor, who is a Registered Medical Practitioner, under Board of Ayurvedic and Unani Systems of Medicine, Punjab, can be taken into consideration?
ii) Whether it is necessary to register FIR and carry on postmortem examination to ascertain the cause of death in every case?
In Re Question No.(i):
10. So far as the Ayurvedic and Unani Systems of Medicine, Punjab is concerned, the same is recognized under the Indian Medical System. A doctor, though may be registered under the Board of Ayurvedic and Unani Systems of Medicine, Punjab, yet he knows the basics of human anatomy and other organs of the body. He can at least tell about the cause of death, without going into the details, specifically when the injury is visible on the head. It is the specific case of the complainants that the death was due to accidental death and there is no other evidence to contradict the same. Dr. Dharampal Sharma gave certificate Annexure C-6 regarding cause of death of the deceased. He also filed his affidavit Ex.C-5, deposing that he is practicing for the last 42 years. He is an authorized RMP doctor and has been issued certificate by Board of Ayurvedic & Unani Systems of Medicine, Punjab. He gave the cause of death by fall in his certificate Annexure C-6. In his affidavit, he mentioned that he examined Jaswant Consumer Complaint No.199 of 2014 7 Kaur and found her dead, due to catastrophic brain injuries by falling on the floor. Even the village Sarpanch, Azaib Singh, gave his affidavit Ex.C-3, stating that the cause of death of the deceased was accidental fall in the house. It is common knowledge that in villages, the qualified doctors are not available. The only help is provided by the RMP doctors. The rustic villages are not knowing about the nitty-gritties of law. Admittedly, the insurance policy was taken in the year 2009, which was further got extended for the period 04.08.2012 to 03.08.2015. The death of the deceased occurred in June, 2014. It cannot be said that the claim was fraudulent in any manner.
11. In view of above discussion as well as law laid down by the Hon'ble Andhra Pradesh High Court in case Bashapaka Laxmaiah (supra), we are of the view that the certificate/affidavit of the doctor, although he is a Registered Medical Practitioner, having a diploma issued by Board of Ayurvedic & Unani Systems of Medicine, Punjab Annexure C-7, can be relied to the effect that the deceased died due to accidental fall, resulting catastrophic brain injuries. Accordingly, the death of the deceased is considered as accidental death. Accordingly question No.1 is answered in favour of the complainants.
In Re Question No.(ii):
12. The opposite parties invoked clause D-4 of the policy, while repudiating the claim of the complainants, vide letter Annexure C-9, which is reproduced below:
"Conditions: Making a claim: D4 Consumer Complaint No.199 of 2014 8 "If you meet with any Accidental Bodily Injury that may result in a claim, then as a condition precedent to our liability:
a) You or someone claiming on behalf must inform us in writing immediately and in any event within 30 days.
b) You must immediately consult a Doctor and follow the advice and treatment that he recommends.
c) You must take reasonable steps to lessen the consequence of Bodily injury.
d) You must have yourself examined by our medical advisors if we ask for this.
e) You or some one claiming on behalf must promptly give us documentation and other information we ask for to investigate the claim or our obligation to make payment for it.
f) In case of your death, someone claiming on your behalf must inform us in writing immediately and send us a copy of the post mortem (if Performed) report within 30 days.*Note: Waiver of conditions (a) and (f) may be considered in extreme cases of hardship where it is proved to Our satisfaction that under the circumstances in which You were placed, it was not possible for You or any other person to give notice or file claim within the prescribed time limit. List of claim documents:
A) Death: Duly Completed Personal Accident Claim Form signed by Nominee. Copy of address proof (Ration card of electricity bill copy). Attested copy of Death Certificate.
Burial Certificate (wherever applicable). Attested copy of Statement of Witness, if any lodged with police authorities. Attested copy of FIR/Panchanama/Inquest Panchanama. Attested copy of Post Mortem Report (only if conducted). Attested copy of Viscera report if any(Only if Post Mortem is conducted). Claim form with NEFT details Original Policy copy.
Consumer Complaint No.199 of 2014 9B). Permanent Partial/Total Disablement/Temporary Total Disability: Duly Completed Personal Accident Claim Form signed by insured. Attested copy of disability certificate from Civil Surgeon of Government Hospital stating percentage of disability. Attested copy of FIR. All X- Ray/Investigation reports and films supporting to disablement. Claim form with NEFT details, Original Policy copy.
C) childrens education bonus: Bonafide certificate from school/college or certificate from the educational institution. D) Hospital confinement Allowance/medical expenses reimbursement: First Consultation letter from the Doctor ? Duly Completed claim form signed by the Claimant Hospital Discharge Card Hospital Bill giving detailed break up of all expense heads mentioned in the bill. Clear break ups have to be mentioned for OT Charges, Doctors Consultation and Visit Charges, OT Consumables, Transfusions, Room Rent, etc. Money Receipt, duly signed with a Revenue Stamp All original Laboratory and Diagnostic Test Reports. E.g. X-Ray, E.C.G, USG, MRI Scan, Haemogram etc. Other documents as may be required by Bajaj Allianz to process the claim."
13. In this respect, it is relevant to mention that 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. Furthermore, the investigator doctor was the relevant person to effectively decide the controversy in this case. This Commission, vide order dated 09.03.2017, directed the opposite parties to produce the report of investigator, who visited the village and recorded the statements in this Consumer Complaint No.199 of 2014 10 regard. Instead of filing the affidavit of Dr. Jagroop Singh, affidavit of one Vasu Pawar has been annexed and a report has been annexed therewith as Annexure R-3, which is alleged to have been written by Dr. Jagroop Singh. However, the statements recorded by him have not been produced on the record. This document produced by the opposite parties cannot be relied upon, as it is unsigned and has not been even authenticated by the person, who authored the same, nor the statement of Dr. Dharampal Sharma recorded by him has been placed on the record. Dr. Dharampal Sharma, who is RMP doctor, examined the deceased and gave his certificate as well as affidavit regarding the death of the deceased due to head injury by fall. It is a matter of common knowledge that when one falls on floor, then such like injuries are common.
14. 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 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.
15. In view of above discussion, we are of the opinion that when there is no doubt regarding the cause of death in the mind of the Consumer Complaint No.199 of 2014 11 members of the family of the deceased and the death appears to be accidental, then registration of FIR or conducting of postmortem examination is not necessary. It is a matter of common knowledge that in villages, people do not go for postmortem examination or for lodging FIR, unless they have any doubt that the injury has been caused by someone. Accordingly, Question No.(ii) is answered in negative, holding that lodging of FIR and conducting of postmortem examination is not necessary in every case to ascertain the cause of death.
16. We are of the view that the deceased died due to head injury by accidental fall in her home. The claim of the complainants was wrongly and illegally repudiated by the opposite parties. The complainants are entitled to the sum assured under the policy. The complainants have sought compensation of ₹1,00,000/- and litigation expenses to the tune of ₹20,000/-. In our view, ₹50,000/- would be just and fair compensation to be awarded in their favour, besides litigation expenses to the tune of ₹10,000/-.
17. In view of our above discussion, the complaint is partly allowed and the following directions are issued to the opposite parties:
i) to pay ₹25,00,000/- being the sum assured as per policy;
ii) to pay ₹50,000/-, as compensation; and
iii) to pay ₹10,000/-, as litigation expenses.
The opposite parties shall comply with this order within 30 days of the receipt of the certified copy thereof.
Consumer Complaint No.199 of 2014 12
18. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER April 10, 2017.
(Gurmeet S)