Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that Smt.Kiran Bala wife of Paramjit Singh got sanctioned a auto loan of Rs.12,00,017/- for the purchase of XUV-500 Mahindra Vehicle bearing RC No.PB-10-FN-1090 in November, 2015 and the EMI of Rs.25,519/- was transferred from her saving bank account maintained with State Bank of Patiala, Ludhiana from January 2016 upto her death. Said loan amount was to be payable in 60 EMI of Rs.25,519/-. The amount of EMI includes the premium for availing insurance policy known as ICICI Lombard Group Personal Accident Insurance Policy to auto loan customers of ICICI Bank limited for availing insurance policy to provide insurance cover to the mortgage property (vehicle0 and personal accident cover to the borrower Smt.Kiran Bala and the policy bearing No.4005/M/IBANKAL/110206613/00, LAN/CARD No.LALUD00033804202 valid for the period w.e.f. 30.11.2015 to 29.11.2020 against the paid up premium of Rs.15,066/-. At the time of sanction/ disbursement of the loan amount, no policy terms and conditions were ever explained to the complainant nor any copy of the policy was supplied, but Opposite Party No.1 bank simply informed that the said loanee is duly insured under the personal accident policy which was sent to the complainant on 4.12.2015. Unfortunately, Smt.Kiran Bala died on 31.05.2017 due to accidental slip in the wash room and left behind the complainants as her legal heirs. In the said policy, Taranpreet Singh is the nominee of the insured. The intimation regarding her death was given on 07.06.2017 to Opposite Party No.2. Thereafter, the complainants lodged the claim with Opposite Party No.2 and completed all the formalities. On this, Opposite Party No.2 also appointed their surveyor who required some documents which were completed, but the Opposite Party No.2 repudiated the claim of the complainants illegally on the false and frivolous grounds and as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Party No.2 may be directed to pay Rs.12,00,017/- the insured amount of the vehicle under the policy alongwith compensation of Rs.2 lakhs due to mental tension and harassment caused by the complainants and also to pay any other relief to which this District Consumer Commission may deem fit.
3. Opposite Party No.2 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that immediately on the receipt of the claim, it was duly registered and entertained. Smt.Kiran Bala is a beneficiary under the Group Personal Accident Policy obtained by ICICI Bank Limited, Opposite Party No.1 for auto loan customers subject to terms, conditions and exclusions contained or otherwise expressed in the policy in question. Thereafter, the surveyor sought some documents for processing of the claim. But from all the questionnaires and documents, the cause of death is immediate natural death. The body of Kiran Bala was not subject to post-mortem to find the exact cause of death. The Opposite Party No.2 does not cover the natural death since it is a group personal accident policy obtained by Opposite Party No.1 from Opposite Party No.2 and due to this reason, the claim of the complainants was repudiated. On merits, Opposite Party No.2 took up the same and similar pleas as taken up by them in the preliminary objections. Hence, Opposite Parties have rightly repudiated the claim of the complainant after application of mind and the complaint may be dismissed with costs.
4. In order to prove their case, the complainant has tendered into evidence the affidavit of Paramjit Singh Ex.CA alongwith copies of documents Ex.C1 to Ex.C18 and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party No.2 also tendered into evidence the affidavit Ex.RA alongwith copies of documents Ex.R1 to Ex.R26 and closed the evidence.
6. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
7. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the written version filed on behalf of Opposite Party No.2 Insurance Company has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party No.2 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party No.2. Further contended that no such terms and conditions were ever conveyed or supplied to the complainant at the time of insurance of the cows and the alleged terms and conditions are not applicable on the case of complainant. Further contended that Smt.Kiran Bala wife of Paramjit Singh got sanctioned a auto loan of Rs.12,00,017/- for the purchase of XUV-500 Mahindra Vehicle bearing RC No.PB-10-FN-1090 in November, 2015 and the EMI of Rs.25,519/- was transferred from her saving bank account maintained with State Bank of Patiala, Ludhiana from January 2016 upto her death. Said loan amount was to be payable in 60 EMI of Rs.25,519/-. The amount of EMI includes the premium for availing insurance policy known as ICICI Lombard Group Personal Accident Insurance Policy to auto loan customers of ICICI Bank limited for availing insurance policy to provide insurance cover to the mortgage property (vehicle0 and personal accident cover to the borrower Smt.Kiran Bala and the policy bearing No.4005/M/IBANKAL/110206613/00, LAN/CARD No.LALUD00033804202 valid for the period w.e.f. 30.11.2015 to 29.11.2020 against the paid up premium of Rs.15,066/-. At the time of sanction/ disbursement of the loan amount, no policy terms and conditions were ever explained to the complainant nor any copy of the policy was supplied, but Opposite Party No.1 bank simply informed that the said loanee is duly insured under the personal accident policy which was sent to the complainant on 4.12.2015. Unfortunately, Smt.Kiran Bala died on 31.05.2017 due to accidental slip in the wash room and left behind the complainants as her legal heirs. In the said policy, Taranpreet Singh is the nominee of the insured. The intimation regarding her death was given on 07.06.2017 to Opposite Party No.2. Thereafter, the complainants lodged the claim with Opposite Party No.2 and completed all the formalities. On this, Opposite Party No.2 also appointed their surveyor who required some documents which were completed, but the Opposite Party No.2 repudiated the claim of the complainants illegally on the false and frivolous grounds and as such, there is deficiency in service on the part of the Opposite Parties.
8. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that immediately on the receipt of the claim, it was duly registered and entertained. Smt.Kiran Bala is a beneficiary under the Group Personal Accident Policy obtained by ICICI Bank Limited, Opposite Party No.1 for auto loan customers subject to terms, conditions and exclusions contained or otherwise expressed in the policy in question. Thereafter, the surveyor sought some documents for processing of the claim. But from all the questionnaires and documents, the cause of death is immediate natural death. The body of Kiran Bala was not subject to post-mortem to find the exact cause of death. The Opposite Party No.2 does not cover the natural death since it is a group personal accident policy obtained by Opposite Party No.1 from Opposite Party No.2 and due to this reason, the claim of the complainants was repudiated.
9. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of Opposite Party No.2 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party No.2 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for Opposite Party No.2. In this regard, Hon’ble Supreme Court of India in case titled as Shubh Shanti Services Limited v. Manjula S.Agarwalla and others (2005) 5 SCC 30, decided on 11.05.2005 has and observed to the following effect:
“..............As already stated, it has not been averred in the plaint nor sought to be proved that any resolution had been passed by the Board of Directors of the plaintiff company authorising Shri A.K. Shukla to sign, verify and institute the suit. It has also not been averred that the memorandum/articles of the plaintiff company give any right to Shri A.K. Shukla to sign, verify and institute a suit on behalf of the plaintiff company. It, therefore, follows that the plaint has been instituted by Shri A.K. Shukla only on the authority of Sh. Raj K.Shukla, CEO of the plaintiff company. Such an authority is not recognized under law and, therefore, I held that the plaint has not been instituted by an authorised person. Issue No.1 is accordingly, decided against the plaintiff and in favour of the defendants.”
Further, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Recently Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
10. The main plea raised by Opposite Party No.2 is that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim as claimed. But the Opposite Party could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited also held so.
11. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The main contention of the Opposite Party is that the policy in question does not cover the natural death of the insured and due to this reason, the claim of the complainants was repudiated. But we do not agree with the aforesaid contention of the Opposite Party. In the claim form, it is duly mentioned by Taranpreet Singh son of the insured that his mother went to take shower. After 20 minutes, she did not come back, and he went and knocked the door and no answer from her. Then, he opened bathroom door and seen that she was lying on bathroom floor. They immediately brought her DMC Hospital in emergency and where the doctors declared her dead after carrying out CPR. On the other hand, Opposite Party No.2 has contended that the body of Kiran Bala was not subject to post-mortem to find the exact cause of death. But we area of the view that in such cases, there is no need of post mortem since the death caused due to slip in the bath room. Moreover, the onus to establish this fact is upon the Opposite Parties in this case that the insured has died natural death. Hence, we conclude that there is no substantive evidence on the record to prove this fact that the insured was died natural death.
12. The main contention of the Opposite Parties is that the body of Kiran Bala was not subject to post-mortem to find the exact cause of death. The Opposite Party No.2 does not cover the natural death since it is a group personal accident policy obtained by Opposite Party No.1 from Opposite Party No.2 and due to this reason, the claim of the complainants was repudiated, but we do not agree with the aforesaid contention of ld.counsel for the Opposite Parties. On this point, Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in case “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, Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh 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. Not only this, Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in Consumer Complaint No.199 of 2014, decided on 10.04.2017 in case titled as Harpal Singh Versus Bajaj Allianz General Insurance Co. also held so. In this judgement, it is clearly held that due to non production of postmortem and FIR, the claim cannot be declined in their absence. Not only this, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in FIRST APPEAL NO. 1516 OF 2017 titled as BAJAJ ALLIANZ GENERAL INSURANCE CO. Versus HARPAL SINGH decided on 16 Oct 2017 has held so.
13. In such a situation the repudiation made by Opposite Party-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
14. In view of the above discussion, we hold that the Opposite Party-Insurance Company have wrongly and illegally rejected the claim of the complainant.
15. Perusal of the documents placed by the complainant on record shows that they have alreadly cleared all the loan liability of Opposite Party No.1-Bank and got remove the hypothecation against the insured vehicle from Opposite Party No.1-Bank, so at present, there is no liability of Opposite Party No.1-Bank against the complainant regarding the vehicle in question.
16. To support their contention, the Opposite Party has cited the rulings, but these rulings are not applicable to the facts of the present case and are not supportive to the instant case.
17. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainants against Opposite Parties No.2 Insurance Company and direct Opposite Parties No.2-Insurance Company to make the insurance claim of Rs.12,00,017/- (Rupees twelve lakh seventeen only) to the complainants. Opposite Parties No.2 Insurance Company are also directed to pay compensation to the complainants for causing them mental tension and harassment to the tune of Rs.10,000/- (Ten thousands only). The compliance of this order be made by Opposite Parties No.2-Insurance Company within 45 days from the date of receipt of this order, failing which the complainants shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
18. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint today i.e.23.05.2022 at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
