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The New India Assurance Co. Ltd. & Another v/s Prashant Rana & Another

    Appeal No. 49 of 2020

    Decided On, 11 June 2021

    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh

    By, THE HONOURABLE MR. JUSTICE RAJ SHEKHAR ATTRI
    By, PRESIDENT
    By, THE HONOURABLE MRS. PADMA PANDEY
    By, MEMBER & THE HONOURABLE MR. RAJESH K. ARYA
    By, MEMBER

    For the Appellants: None. For the Respondents: R1, Surjeet Bhadu, Advocate.



Judgment Text

Rajesh K. Arya, Member

1. This appeal has been filed by opposite parties No.1 & 2 (appellants herein) against order dated 23.12.2019 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (now District Consumer Disputes Redressal Commission-II, U.T., Chandigarh) [in short ‘District Commission’] vide which Consumer Complaint No.30 of 2019 filed by the complainant (respondent No.1 herein) was allowed qua opposite parties No.1 & 2 in the following manner:-

“14] From the entire facts & circumstances of the case, discussed and findings, as made in the preceding paragraphs, it is proved that the Opposite Party NO.1 & 2 have illegally repudiated the genuine claim in respect of the deceased insured late Subhas Chander and as such remained grossly deficient in rendering proper service to the complainant. Therefore, the present complaint is allowed against Opposite Party No.1 & 2 with following directions:

a) To pay the sum insured amount of Rs.10 lacs to the legal heirs of the late Sh.Subhash Chander (insured) in equal shares, along with interest @9% p.a. from the date of death i.e. 20.4.2018 till actual payment;

b) To pay a compensation amount of Rs.15,000/- to the complainant for causing immense mental agony, harassment due to their deficient act;

c) To pay litigation cost of Rs.10,000/-;

This order shall be complied with by Opposite Party No.1 & 2 within a period of 30 days from the date of receipt of copy of this order.”

However, the complaint was dismissed against opposite party No.3 by the District Commission.

2. The case of the complainant before the District Commission was that his father, namely, Sh. Subhash Chander Rana, a professional and practicing Chartered Accountant, was insured for a sum of Rs.10 Lakhs with Opposite Party No.1 through a ‘Group Personal Accident Insurance Policy’ bearing No.31120042170100000185, purchased by Opposite Party No.3 - Chandigarh Branch of NIRC of ICAI as a Master Policy and the complainant was appointed nominee under said policy. Unfortunately, Sh. Subhash Chander Rana, residing on 2nd Floor, while trying to get to the roof of the house by climbing a ladder, fell on the tiled floor area on the backside balcony of their second floor house due to slipping of the said ladder and his head was smashed against the tiled floor. Consequently, he died on 19.4.2018. At that time, all the family members were away. The residents of Ground Floor telephonically informed the complainant’s mother about the incident. The deceased insured was taken to Fortis Hospital in Mohali where he was declared as brought dead. Accordingly, Opposite Party No.3 was duly informed and a claim form was also submitted with Opposite Party No.3 along with all requisite documents as well as affidavit detailing the nature of accident and circumstances which lead to death of insured and also that no FIR or Post Mortem was conducted as no foul play was suspected in the circumstances of the case. Affidavits of eye-witnesses with regard to accidental death of Sh. Subhash Chander Rana was also submitted. However, opposite parties No.1 & 2 repudiated the genuine claim of the complainant on flimsy grounds vide letter dated 4.10.2018, which led to the filing of the complaint before the District Commission.

3. On the other hand, opposite parties No.1 & 2 contested the complaint by pleading that on getting the matter investigated through Royal Associates Investigating & Detective Agency, it was found that as per report, Annexure R-2, no FIR was lodged by the complainant or by his relative nor any information regarding accident was given to police, hence the matter could not be investigated to verify accidental death of insured. It was further pleaded that in order to prove the accidental death, the complainant did not place on record any evidence, medical report or post mortem report, which could show that deceased had died due to accident and in absence of any proof, the death of insured could not be declared as accidental death. It was further pleaded that the insured had died of natural death and the complainant had concocted the story that the insured had died due to accident in order to get the claim. It was further pleaded that it seemed that there was suspicion and foul play by the complainant regarding death of Sh. Subhash Chander Rana/insured in order to get claim.

4. The parties led evidence in support of their case.

5. After hearing the Counsel for the parties and going through the record, the District Commission allowed the complaint against opposite parties No.1 & 2 only in the manner as stated above.

6. Before us, on the date of arguments through video conferencing, none appeared on behalf of the appellants whereas Sh. Surjeet Bhadu, Advocate appeared on behalf of respondent No.1/complainant and made his submissions. However, both the parties filed their respective written arguments.

7. The order of the District Commission has been impugned by the appellants/opposite parties No.1 & 2, on the following grounds:-

a. that the claimants have failed to lead cogent evidence to discharge the onus to prove that the deceased had died due to injuries received in the accident caused by external violent and visible means;

b. that District Commission failed to consider the terms and conditions of the Insurance Policy specially Condition no.2, which states that proof satisfactory to the company shall be furnished of all matters upon which a claim is based and further as per this condition it was mandatory to get the post mortem examination done to establish the cause of death;

c. that no police report was made to establish that the deceased did not die due to natural death and in case, he died due to injuries received in the accident caused by external violent and visible means, the police was required to carry out the procedure under Section 174 of Code of Criminal Procedure, 1973 and since, no such report was made to the police, therefore, there was no such report produced by the claimants.

d. that the finding of the District Commission in Para 8 of its order is erroneous wherein it held that lodging of FIR is only in cases, there is an unnatural death.

e. that had there been any visible injuries suffered by the deceased, the hospital is under obligation to inform the police and thereafter, the police could have got the post mortem done of the deceased.

f. that the Death Report, Annexure C-15, is not the cogent and conclusive proof of the cause of death.

g. that the learned District Commission erroneously relied upon the affidavits of the witnesses to hold that the cause of death was due to an accident.

h. that the District Commission totally misread the documents, Annexure C-1 and C-2, which were the policy schedule and terms and conditions of the insurance policy and moreover, the appellants were not under obligation to supply the copies of the policy and its terms and conditions to each and every beneficiary under the policy, rather, it was the responsibility of Opposite Party No.2 to provide the same to its members.

The appellants/opposite parties No.1 & 2 have placed reliance on the Hon’ble National Consumer Disputes Redressal Commission, New Delhi [in short ‘Hon’ble National Commission] in case Oriental Insurance Co. Ltd. versus Tara, 2015 (2) CPJ 661, has specifically held that “….it is clear that the complainant in order to succeed was under obligation to prove that the cause of death of insured was the injuries sustained in the unfortunate accident. Post mortem report which could have proved the cause of death has not been produced. Even otherwise no cogent evidence has been produced by the complainant to establish that the death of her husband was the direct result of injuries sustained in the accident.….” The next judgment relied upon by the appellants was in the case of Oriental Insurance Co. Ltd. versus Varinder Singh, 2015 (30) RCR (Civil) 60, wherein it was held by Hon’ble National Commission that “…As the complainants have failed to produce the best evidence and by their own effort ensured that post mortem on the dead body of the insured is not conducted, we are inclined to draw an adverse presumption against them. Thus, it can safely inferred that the story of death of Amarjeet Singh due to accidental fall is false and there is truth in the statement of witnesses Kirpal Singh and Amrik Singh made to the investigator that Amarjeet Singh died because of heart attack.” Further reliance was placed on another judgment of Hon’ble National Commission in the case of Ms. Madumita Bose versus HDFC Ergo General Insurance Company, 2015 (1) CPJ 647 wherein, the death claim for accidental death of the complainant due to fall from bus was lodged with the Insurance Company, which was repudiated as the post-mortem report showed that externally there was no internal injury mark detected and since no proof was furnished that death of insured was solely because of alleged accident or independently of any other cause and since further there was gap of 11 days between accident and death, the claim was repudiated. Lastly, the appellants have prayed that the appeal be accepted and the impugned order passed by District Commission be set aside.

8. On the other hand, Sh. Surjeet Bhadu, Advocate, Counsel for respondent No.1/complainant in his written arguments has stated that it can be clearly seen from the working of condition No.2 that post mortem report was not mandatory in all situations. As regards requirement of FIR and Post Mortem Report, the appellants placed reliance on the judgment of Hon’ble National Commission i.e. Eeta Devi versus United India Insurance Co. Ltd., 2015 (22) RCR (Civil) 497, wherein it was held by Hon’ble National Commission that where the death is caused by accident, the question of reporting to the police and conducting a panchnama does not arise. It was further held that where the death was not suspicious one, there was no requirement for FIR or post mortem report. The next judgment relied upon by the appellants was in the case of New India Assurance Co. Ltd. versus Kaushalya Devi & Ors., 2007 (53) RCR (Civil) 218, wherein the Hon’ble National Commission held that since the Insurance Company has not filed any evidence to prove the stand that the deceased died due to epileptic attack and not accidental death, the revision petition was liable to be dismissed. The appellants, in their written arguments, have stated that it is also worth nothing that even in criminal jurisprudence medical evidence is only corroborative and not conclusive proof of a fact and post mortem report being a piece of medical evidence is also not a conclusive proof of a fact. They placed reliance on the judgment of Hon’ble Supreme Court of India in the case of Solanki Chimanbhai Ukabhai versus State of Gujarat, 1983 AIR (SC) 484, wherein, the Hon’ble Supreme Court held that in case of inconsistency between the medical evidence and evidence given by eyewitnesses, the evidence of the eyewitnesses cannot be thrown out. On the basis of submissions made by the appellants in the written arguments, their Counsel prayed for dismissal of the appeal.

9. We have heard the Counsel for respondent No./complainant and have also carefully gone through the record and the respective written submissions of the parties.

10. So far as the first ground that the claimants (complainant) failed to lead cogent evidence to discharge the onus to prove that the deceased had died due to injuries received in the accident caused by external violent and visible means, it may be stated here that sufficient cogent and convincing evidence has been led by the complainant, which transpires that the father of the complainant died due to injuries received in the accident caused by external violent and visible means. Undoubtedly, Sh. Subhash Chander Rana, since deceased, as is established from his Death Certificate issued by Department of Health Services, Municipal Corporation, Chandigarh (Annexure C-5), died on 10.04.2018 and his address at the time of his death is mentioned as #2179, Sector 22C, Chandigarh. The next document placed on record by the complainant is the Death Summary issued by Dr. Harsh Batra, Senior Consultant, H.O.D. Emergency of Fortis Hospital, Mohali (Annexure C-6), wherein it was certified that Sh. Subhash Chander Rana, resident of H.No.2179/80, Sector 22 C, Chandigarh was brought in Emergency of Fortis Hospital, Mohali on 19/4/18 at 6:05 p.m. and was declared brought death. He was accompanied by Mr. Veer Singh. The crucial document is the statement suffered by an eye witness to the said incident i.e. Murti Devi wife of Late Sh. Inder Singh resident of H.No.1005, Urban Estate-II, Hisar, Haryana by way of her affidavit on oath, wherein she specifically deposed that she is the real aunt of Sh. Subhash Chander Rana and in the month of April 2018, she had gone to stay with the family of Sh. Subhash Chander Rana. She has further testified that at the time of death Sh. Subhash Chander Rana, she was present on the second floor of H.No.2179-2180, Sector 22-C, Chandigarh. She has further testified that on 19.04.2018, in the evening at 5:00 p.m., when she was standing in the back side balcony, Sh. Subhash Chander Rana started to climb the roof of the house by taking help of a wooden ladder. She further testified that when Sh. Subhash Chander Rana had climbed half of the ladder, at that time, the said ladder slipped towards the right side, due to which, his foot struck in the ladder and he suddenly fell down. His head struck on the floor and the said ladder also fell on him. He became unconscious and blood started oozing from the back side of his head and his eyes were left open. She further testified in her affidavit that she raised hue and cry and Smt. Sunita Devi, neighbourer, who was bringing tea, for them from the floor below, also started raising alarm and called other neighbourers. It was further testified that after some time, neighbourers took Sh. Subhash Chander Rana to Fortis Hospital, Mohali and after some time, they came back with the dead body of Sh. Subhash Chander Rana and informed that the hospital authorities have declared him dead. In Para 7 of her affidavit, she categorically and specifically testified that the death of Sh. Subhash Chander Rana had occurred due to falling from a ladder and suffering head injury. Lastly, she testified that this whole incident, as stated in her affidavit above, happened in front of her eyes.

11. Not only above, the other eye witnesses, namely, Smt. Sunita Devi, Sh. Navneet Arora and Sh. Veer Singh, residents of the said locality, who saw Sh. Subhash Chander Rana, after the incident and specially, Sh. Veer Singh who took him to Fortis Hospital, Mohali, also filed their affidavits, Annexures C-11 to C-13), testifying that the incident, before the District Commission. Further, bare perusal of the Death Report, Annexure C-15, certified by Registrar of Birth and Deaths, transpire that the cause of death medically certified was mentioned as ‘Head Injury’.

12. The Hon’ble National Commission in the case of New India Assurance Co. Ltd. versus Kaushalya Devi & Ors. (supra) held that since the Insurance Company has not filed any evidence to prove the stand that the deceased died due to epileptic attack and not accidental death, the revision petition was liable to be dismissed. Further the judgment of Hon’ble Supreme Court of India in the case of Solanki Chimanbhai Ukabhai versus State of Gujarat, (supra), relied upon by respondent No.1/complainant, comes to his rescue, wherein, it was held that in case of inconsistency between the medical evidence and evidence given by eyewitnesses, the evidence of the eyewitnesses cannot be thrown out.

13. Thus, from the above testimonies of the witnesses and documents placed on record and in view of aforesaid judgments, it is very much established beyond doubt that Sh. Subhadh Chander Rana, Life Assured died due to falling from the second floor due to slipping of the ladder and suffering head injury, while he was trying to climb the roof top of the said second floor. It is important to mention here that as rightly observed by the District Commission, in Para 9 of its order, no suspicion was raised by the Investigator appointed by the appellants qua the death of the insured. The ground raised, is thus, not sustainable in the eyes of law.

14. As regards the grounds (b) to (d) raised by the appellants to the effect that the District Commission failed to consider the terms and conditions of the Insurance Policy specially Condition No.2, which states that proof satisfactory to the company shall be furnished of all matters upon which a claim is based and further as per this condition, it was mandatory to get the post mortem examination done to establish the cause of death; that no police report was made to establish that the deceased did not die due to natural death and that the finding of the District Commission in Para 8 of its order is erroneous wherein it held that lodging of FIR is only in cases, there is an unnatural death, it may be stated here that the grounds raised are bereft of any merit in view of the fact that sufficient material information by way of documentary evidence and statements of witnesses was placed by the complainant before the Insurance Company to establish the accidental claim, which they did not consider and repudiated the claim. Once accidental death of Sh. Subhash Chander Rana has been established solely directly from accident caused by external, violent and visible means, the act of the appellants in repudiating the rightful and genuine claim has to be entertained and paid to the Legal Heirs of the deceased Sh. Subhash Chander Rana. Thus, Condition No.2 of the Personal Accident Insurance Policy was duly met by the complainant. Once accidental death of Sh. Subhash Chander Rana has been established by the testimonies made by eye witnesses, then it was not mandatory to get the post mortem examination done to establish the cause of death in view of law laid down by Hon’ble National Commission in the case of Eeta Devi versus United India Insurance Co. Ltd. (supra), wherein it was held that where the death is caused by accident, the question of reporting to the police and conducting a panchnama does not arise. It was further held that where the death was not suspicious one, there was no requirement for FIR or post mortem report.

15. We may state here that it was the investigator, who in his report, objected that no postmortem was conducted nor the matter was reported to the police. Thus, in view of law settled on the point by way of aforesaid judgments, we hold the view expressed by the District Commission in Para 8 of its order that the requirement of lodging an FIR is only in case if there is an unnatural death or there was any suspicion about the reason of death. Moreover, the case in hand is a clear cut case of accidental death of Sh. Subhash Chander Rana who died because of sustaining head injury due to falling from the second floor of his house while he was trying to climb the roof top with the help of a wooden ladder.

16. Coming to the next grounds (e) and (f) raised, in the grounds of appeal, that had there been any visible injuries suffered by the deceased, the hospital is under obligation to inform the police and thereafter, the police could have got the post mortem done of the deceased and that the Death Report, Annexure C-15, is not the cogent and conclusive proof of the cause of death, it may be stated here that the nous to prove that it was unnatural death was upon the appellants as they wrongly repudiated the rightful and genuine claim of the appellants and the complainant has established his case of accidental death of his father Sh. Subhash Chander Rana by leading sufficient cogent and convincing evidence. As already discussed above, once it is established to be an accidental death and not unnatural death, no post mortem was required and the Fortis Hospital was also not under obligation to refer the case to local police. The Investigator appointed by the appellants did not doubt the cause of death but he only objected to non-lodging of FIR and not conducting post-mortem, which was not required at all in view of the law referred to above.

17. As regards the next ground raised to challenge the order under appeal that the District Commission erroneously relied upon the affidavits of the witnesses to hold that the cause of death was due to an accident, it may be stated here that the ground raised is unsustainable in view of discussion made in the preceeding paras of our order. Moreover, as referred to above, the judgment of Hon’ble Supreme Court of India in case Solanki Chimanbhai Ukabhai versus State of Gujarat (supra) holds water, wherein, it was held that in case of inconsistency between the medical evidence and evidence given by eyewitnesses, the evidence of the eyewitnesses cannot be thrown out. Thus, the District Commission rightly held that the statements of the witnesses given under oath duly tallied with the statements so given by them to the Investigator appointed by the appellants and it was established beyond doubt that the death of Sh. Subhash Chander Rana, the insured, occurred only due to accidental fall and the appellants failed to suggest any of possibility, which caused the death of the policyholder.

18. Now coming to the last ground raised by the appellants that the District Commission totally misread the documents, Annexure C-1 and C-2, which were the policy schedule and terms and conditions of the insurance policy and moreover, the appellants were not under obligation to supply the copies of the policy and its terms and conditions to each and every beneficiary under the policy, rather, it was the responsibility of Opposite Party No.2 to provide the same to its members, it may be stated here that one great principle of insurance law is that a contract of insurance is based upon utmost good faith (UBERRIMA FIDES). The District Commission, after taking into consideration all relevan

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t facts, evidence and documents placed before it, rightly arrived at a conclusion that the death of Sh. Subhash Chander Rana was an accidental death and as per the terms and conditions of the Policy Schedule and terms and conditions, Annexure C-1 and C-2, they are definitely entitled to the death claim benefit under the said Policy. Further, Regulation 3(2) of IRDA (Protection of Policyholder’s Interest) Regulations, 2002, clearly envisages that an insurer or its agent or other intermediary shall provide all material information in respect of a proposed cover to the prospect to enable the prospect to decide on the best cover that would be in his or her interest. As such, merely saying that the appellants were not under any kind of obligation to supply the policy document/terms and conditions to the life assured or it was the obligation of opposite party No.3, cannot be accepted and stands rejected. The district Commission rightly held that the complainant cannot be bound by the terms & conditions of the policy which the appellants never supplied individually to all the policyholders. 19. In view of above discussion, we are of the considered opinion that the appellants illegally repudiated the rightful and genuine accidental death claim of the deceased insured Sh. Subhash Chander Rana and by doing so, they were deficient in rendering proper service. We have observed that the tendency of the insurance companies is to defeat the rightful claims of the consumers by any means by finding lacunas in the claims submitted to them in the garb of terms and conditions of the insurance policies. No doubt insurance policy is taken to protect future claims but we have not seen any single case, where the claims are given so easily. The consumers have to file cases and rush to Courts to seek protection under law for claiming their genuine claims illegally and arbitrarily repudiated by the Insurance Companies. In our considered opinion, the District Commission rightly allowed the complaint by appreciating cogent and convincing evidence led before it. The order impugned, being just and fair, needs no interference. 20. For the reasons recorded above, the appeal, being devoid of any merit, is dismissed, with no order as to costs. The order dated 23.12.2019 passed by the District Commission is upheld. 21. Certified copies of this order be sent to the parties, free of charge. 22. The file be consigned to Record Room, after completion.
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