Judgment:
K.K. Srivastava, President:
1. Smt. Gurdev Kaur widow of Shri Bhajan Singh r/o Village Hassanpur, Tehsil Kharar, District Ropar feeling aggrieved against the order dated 26.9.2000 passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh [for short hereinafter referred to as the District Forum-I] deciding here Complaint Case No. 491 of 1995, has filed this appeal under Section 15 of the Consumer Protection Act, 1986 [for short hereinafter referred to as the C.P. Act]. The respondent-Branch Manager, United India Insurance Co. Ltd., Manimajra, Opposite Dhillon Theatre, Chandigarh was arrayed as opposite party in the complaint case and in appeal, he has been arrayed as respondent. The respondent has put in appearance through Counsel in response to the service. The respondent has put in appearance through Counsel in response to the service of notice of appeal and has contested the case. The record of the complaint case was summoned from the District Forum-I.
2. We have heard the learned Counsel for the appellant Mr. H.S. Awasthi, Advocate and Mr. D.P. Gupta, Advocate for the respondent. We have carefully perused the impugned order and the file of the complaint case.
3. Shri Bhajan Singh, the deceased husband of the appellant Smt. Gurdev Kaur had taken a Personal Accident Insurance Policy from the United India Insurance Co. Ltd. [for short hereinafter referred to as the Insurance Company]. A copy of the Insurance Policy is on record having been filed by the appellant as Annexure C-4 and also filed by the respondent as Annexure R-1. A perusal of the Insurance Policy shows that the Insurance Company would be liable to pay the insured sum or the amount which is found due under the policy if at any time during the currency of the policy, the insured sustained bodily injury resulting solely and directly from accident caused by external violent and visible means. It is not disputed that at the time of the accident involved in this case, the policy was current and operative. According to the claim preferred by Smt. Gurdev Kaur, her husband Shri Bhajan Singh on 14.1.1994 had climbed on the roof top of the house to fetch some fire wood stored there, when he had an accidental slip and fell on the ground sustaining injuries on his person to which he succumbed on the same date i.e. 14.1.1994. The claim was preferred under the terms and policy of the insurance Annexure C-4/R-1. After the claim had been preferred, the respondent got the incident investigated by Shri Gurdial Singh, Deputy Superintendent of Police (Retd.) who submitted his report on 9.5.1994. The investigation revealed that Shri Manjit Singh son of the deceased Shri Bhajan Singh had informed the Village Chowkidar through a form that his father Shri Bhajan Singh had expired on 14.1.1994 due to heart attack. The statement of the complainant Smt. Gurdev Kaur was also recorded by the Investigator and she informed the same cause of death of her husbnd which is mentioned by the Village Chowkidar in the form aforesaid, a copy of which has been placed on record as Annexure R-3. Since the death of Shri Bhajan Singh took place due to heart attack and not under the terms and conditions of the policy regarding the death having been by bodily injuries resulting solely or directly from accident caused by external, violent and visible means, the claim of the complainant Smt. Gurdev Kaur was rejected vide letter dated 5.6.1997 (copy Annexure R-5).
4. Smt. Gurdev Kaur was dissatisfied with the manner in which her claim under the policy had been repudiated by the respondent/Insurance Company and she filed a complaint under Section 12 of the C.P. Act.
5. The respondent/Insurance Company filed the written statement taking the pleas as have been mentioned above and defended the repudiation of the claim of the complainant. Evidence was led before the District Forum-I. The District Forum-I dismissed the complaint on the ground that there was discrepancy in the date of death as at some places, it was mentioned as 14.1.1994 whereas Column No. 4[c] of the Forum (Annexure C-10) showed the death of Shri Bhajan Singh on the following day which meant that it was on 15.1.1994. Apart from this, the District Forum-I found that the complainant could not support her claim by cogent and convincing evidence that her deceased husband, the insured under the policy died due to bodily injuries resulting solely or directly by accident caused by external, violent and visible means. The District Forum-I also noted that there was no report of the medical expert, post-mortem report or any other convincing document to prove that the deceased had died accidental death. Even the F.I.R., it was observed had not been produced. The District Forum-I, however, left the complainant Smt. Gurdev Kaur to seek redressal before any Competent Authority/Civil Court wherein full-dressed trial of such aspects could be adjudged and voluminous evidence could be adduced in support of rival contentions. The District Forum-I also mentioned that none of the discussions and observations made in the impugned order would affect or jeopardize the merit of any such case if proceeded before any other Authority/Civil Court.
6. Mr. H.S. Awasthi, Advocate, learned Counsel for the appellant submitted that the District Forum-I has disposed of the complaint on wholly irrelevant considerations. He pointed out that there is no discrepancy regarding the date of death. The death of the insured Shri Bhajan Singh took place on 14.1.1994 itself and not on the following day i.e. 15.1.1994. He has also pointed out that the complainant had led clear and cogent evidence in the shape of her affidavit as well as in the shape of affidavits of her witnesses and filed documents which clearly indicates that the deceased Shri Bhajan Singh had climbed on the roof top of the house and had an accidental fall when he suffered injuries to which he succumbed later on, on the same day i.e. 14.1.1994, before any medical help could be provided to him at some hospital. The medical practitioner [Vaidya] of the village had been summoned and he had examined Shri Bhajan Singh. He has also referred to the certificate of death (copy Annexure C-5) issued by the Chief Registrar (Birth and Death), Punjab, Chandigarh showing the date of death of Shri Bhajan Singh as 14.1.1994 at his village Hassanpur. Mr. H.S. Awasthi, Advocate has also pointed out that the report of the Investigator Shri Gurdial Singh has not been proved in accordance with law inasmuch as no affidavit of the Investigator has been filed and the appellant/complainant was deprived of an opportunity of cross-examining the Investigator. The repudiation of the claim, Mr. Awasthi, Advocate, contended is wholly and solely based on the report of the Investigator. Besides it, the respondent has not filed the affidavit of Village Chowkidar to whom information is reported to have been furnished by Shri Manjit Singh son of the deceased Shri Bhajan Singh. A perusal of the report of the Investigator, it has been contended, will go to show that the complainant was examined by the Investigator who put questions to her. In reply to question No. 3, which was as under :
âQ. 3. What cause of death was reported to Chowkidar ?â
the complainant answered âHeart Attackâ.
Thereafter Question No. 4 was put in this form :
âQ. 4. Have you told Chowkidar that death was due to injuries received by falling down from the roof ?â
and the answer given by Smt. Gurdev Kaur was âYesâ.
Regarding the treatment of the injuries from hospital, Question No. 5 was put as under :
âQ. 5. To get the treatment of injuries received due to falling from the roof have you get the treatment of Bhajan Singh from any hospital ?â
The answer given by the complainant was âNoâ.
7. There is also reference in the report of the Investigator that Smt. Gurdev Kaur in her statement stated about calling Shri Nasib Singh, R.M.P. to her village to give treatment to Shri Bhajan Singh. The Investigator then recorded the statement of Shri Nasib Singh, aforesaid who told him that he had examined Shri Bhajan Singh. As it may be mentioned that the respondent/opposite party did not lead proper evidence regarding the prove of the report of the investigator. The Investigator namely, Shri Gurdial Singh, D.S.P. [Retd.] was the best person to prove his report and the investigation undertaken by him. Since the affidavit of the Investigator was not filed regarding the prove of his report, the appellant/complainant has been deprived of a valuable right of cross-examining the Investigator. The learned Counsel for the respondent, however, informed that the affidavit of the Investigator could not be filed because he has gone abroad and was not available to the respondent. In case the Investigator was not available for proving his report, the same could be proved by leading secondary evidence with the leave of the District Forum-I but no such attempt appears to have been made. Apart from it, the Village Chowkidar on whom the Investigator placed reliance regarding the cause of death having been reported as heart attack by the son Shri Manjit Singh of the deceased Shri Bhajan Singh, was not called and his affidavit was not filed and as such the appellant/complainant has been deprived of the valuable right of cross examining the Village Chowkidar regarding the person who gave alleged information or about the nature of information furnished to him. So far as the complainant herself is concerned, she categorically stated before the Investigator Shri Gurdial Singh about her husband falling from the roof top and sustaining injuries on which he succumbed on 14.1.1994. Shri Manjit Singh, it appears, was not examined by the Investigator.
8. The respondent filed affidavit of Shri R.K. Sood, Branch Manager, United India Insurance Co. Ltd. who has merely referred to the report of the Investigator. The verification of the contents of his affidavit are based on his knowledge as well as information derived from the office record. Mr. R.K. Sood was cross-examined with reference to his affidavit on 14.1.1997. In his cross-examination, he stated that he did not accompany Shri Gurdial Singh, Investigator to the village of the complainant and was not present when the statements were recorded by the Investigator. The doctor was not examined in his presence. He also stated that he had incorporated the facts in his affidavit on the basis of record and not on personal knowledge. So far as the record of the case is concerned, we have already referred to the record of the respondent which is merely the report of Investigator which has not been proved in accordance with the provisions of law.
9. The evidence of the appellant/complainant, as mentioned above, comprises affidavit of Smt. Gurdev Kaur and also of the affidavit of witness Shri Ranjit Singh of village Hassanpur. Shri Ranjit Singh is the father-in-law of late Shri Bhajan Singh. He received information regarding the incident, in which Shri Bhajan Singh was involved and he rushed to the house of his daughter Smt. Gurdev Kaur where the Vaidya/Hakim of the village attended Shri Bhajan Singh and Dr. Nasib Singh also attended him. He stated that before Shri Bhajan Singh could be taken to city for major consultation, he expired on 14.1.1994, the complainant or her witness were not summoned by the respondent for cross examination.
10. The Honble Supreme Court considered the matter regarding the repudiation of the claim on the ground that the deceased had withheld correct information regarding his health at the time of effecting insurance with the Corporation. In the case of Life Insurance Corporation of India and Ors. v. Smt. Asha Goel and Anr., I (2001) SLT 89=AIR 2001 Supreme Court 549, the Honble Supreme Court held in para 16 as under :
â16. In course of time the Corporation has grown in size and at present it is one of the largest public sector financial undertakings. The public in general and crores of policy-holders in particulars look forward to prompt and efficient service from the Corporation. Therefore, the authorites incharge of management of the affairs of the Corporation should bear in mind that its credibility and reputation depends on its prompt and efficient service. Therefore, the approach of the Corporation in the matter of repudiation of a policy admittedly issued by it should be one of extreme care and caution. It should not be dealt with in a mechanical and routine manner.â
11. The learned Counsel for the appellant has relied on the judgment of the Honble Supreme Court in the case of Smt. Shashi Gupta v. Life Insurance Corporation of India and Anr., II (1995) CPJ 15 (SC)=CPR V-VI-1995 (2) 74. The Honble Supreme Court held that if two interpretations are reasonably possible, the Court will accept the one which favour the policy-holder, other things being equal. In the instant case, Mr. H.S. Awasthi, Advocate argued that the complainant has led evidence to show that the death of Shri Bhajan Singh took place within the terms and conditions of the policy and has led sufficient material to prove the same whereas the respondent has taken a plea of the death of Shri Bhajan Singh being caused by heart attack which has not been proved. Mr. Awasthi, Advocate contended that due out of the two offers, the evidence of the complainant should be preferred and the policy has to be interpreted in favour of the policy-holder or his beneficiaries under the policy. The other authority relied on by the learned Counsel for the appellant is reported in the case of The New India Assurance Co. Ltd. and Anr. v. P.P. Khanna, II (1997) CPJ 1 (NC)=1997 (2) CPR 21 (NC), wherein the Honble National Consumer Disputes Redressal Commission, New Delhi held that the reputation of the claim was not on valid ground and hence it was deficiency in service.
12. After carefully going through the evidence on record, we find that there is credible evidence on record led by the complainant to show that her husband Shri Bhajan Singh died due to injuries which he sustained as a result of fall from the roof top. There is no reliable evidence on record to show that Shri Bhajan Singh had died not due to the injuries received in the accidental fall from the roof but due to heart attack. The evidence on record including the death certificate clearly shows the date of death as 14.1.1994. The insured - Shri Bhajan Singh thus died as a result of injuries in the said accident which was clearly covered by the terms and conditions of the Insurance Policy. The respondent has repudiated the claim of the complainant on the sole basis of the report of the Investigator which could not clearly establish the fact that Shri Bhajan Singh had died as a result of heart attack. We also find that the respondent has failed to substantiate the basis of the repudiation of the claim by leading cogent and reliable evidence.
13. The District Forum-I, in our considered view, committed an error in not deciding the complaint case on merit and in leaving the complainant of adjudging the matter by approaching the Civil Court or any other authority of competent jurisdiction. The District Forum was also not legally justified in rejecting the complaint case on the ground of alleged discrepancy in the date of death of Shri Bhajan Singh. The complaint case was clearly covered under the provisions of the C.P. Act and the District Forum-I was required to deal with the same under the provisions of C.P. Act.
14. In view of the foregoing discussion, the appeal has considerable merit and is allowed. The order of the District Forum-I is set aside. It is held that the respondent have no legal and valid basis for repudiating the claim of the appellant and the repudiation of the claim cannot be sustained. There is deficiency in service on the part of the respondent in repudiating the claim of the complainant. The complaint is allowed and the respondent is directed to pay a sum of Rs. 2,00,000/- [Rupees two lacs only], the sum insured under the Insurance Policy [copy Annexures C-4/R-1] to the appellant/complainant within a period of two months from the date of receipt of the copy of this order failing which the said amount shall carry interest @ 10% per annum. The appellant is also awarded costs of litigation, which we quantify at Rs. 2,000/-.
Copies of this judgment be supplied to the parties free of charges.