Delhi

StateCommission

CC/13/446

MANALI MALIK - Complainant(s)

Versus

LIC OF INDIA - Opp.Party(s)

10 Jun 2020

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :10.06.2020

Date of Decision :15.06.2020

COMPLAINT NO.446/2013

In the matter of:

 

1. Smt. Manali Malik,

W/o. Late Anil Kumar Malik

 

2. Ms. Rupali Malik (Minor),

D/o. Late Anil Kumar Malik,

Through her mother and natural guardian,

Smt. Manali Malik.

 

3. Ms. Gul Malik (Minor),

D/o. Late Anil Kumar Malik,

Through her mother and natural guardian,

Smt. Manali Malik.

 

All Resident of:-

32C/75 West Punjabi Bagh,

New Delhi-110026.                                                              ………Complainants

Versus

 

      Life Insurance Corporation of India Ltd.,

      Through its Chief Manager,

53-54 Goverdhan Tower,   

Nehru Place, New Delhi-110019.                                      …..Opposite Party

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                              Yes/No

2.      To be referred to the reporter or not?                                                                                                   Yes/No

 

Shri O.P. Gupta, Member (Judicial)

 

 

JUDGEMENT

 

1. Complainant no.1 is widow of Late Anil Kumar Malik, complainant no.2 and 3 are daughters.  Said Anil Kumar Malik died  intestate on 01.02.07. His death certificate is annexure-C/1  and legal heirs certificate issued by SDM is annexure-C/2. He had four policy nos. 112053014 dated 01.05.94, 112431948 dated 22.05.98, 113202470 dated  14.06.02 and 114799583 dated 30.06.06. All the policies were death-cum-accidental policy benefits of which were labelled as endowment assurance with profit with DAB (additional benefit). Photocopies of the policies are collectively annexure-C/3.
2. Upon intimation of death of Shri Anil Kumar Malik to the OP, the benefit on account of death under policy  no.112431948 for Rs.2 lakhs and policy no.113202470 for Rs.6.50 lakhs was released in favour of the complainants. However accidental benefits of Rs.2 lakh and Rs.6.50 lakhs in respect of the said policies was not released. Regarding remaining two policies neither benefit on account of death nor accidental benefit was released. The total amount payable in policy no.112053014 is  Rs.6  lakhs  and  in  respect of  policy  no.114799583  is  Rs.55 lakhs.
3. Death of Shri Anil Kumar Malik was accidental death as his dead body was found lying on the railway track at a distance from Brar Square Railway Station near Km pole no.12/10. The same was reported by police vide DD no.7-A and was marked to S.I. Ashok Kumar for investigation. Statement  of complainant and other relatives of the deceased were recorded by police. The police sent viscera to CSFL Hyderabad for examination. Report for obtaining cause of death was not coming. Complainant no.1 because of untimely death of  her husband at very young age  had to take over the entire responsibility of her two daughters who were 13 years  and 4 years respectively besides her aged father-in-law. His father-in-law was in deep shock seeing his young son having expired in front of him. The tragedy was so severe that the total family was grief stricken and  took a lot of time to reconcile and muster courage to face the harsh  realities of life.
4. The complainant no.1 was constrained to move an application before the court  of Shri Deepak Dabas, M.M. Tis Hazari to call upon police to submit viscera report. During the course of proceedings on 04.03.10, a report was submitted by SHO P.S. Hazrat Nizammudin Railway Station photocopy of which is annexure C/5. The same shows that the report was received on 12.08.09 and sent to obtain opinion regarding cause of death. Since no foul play was suspected, inquest papers were submitted before SDM Defence Colony on 15.10.09 reporting the death of Shri Anil Kumar Malik as an accidental death.
5. On 11.09.09 OP illegally closed the claim. Neither the viscera report nor the final investigation report was prepared. The complainants got  served a legal notice dated  08.03.13 demanding total benefit with interest @24% p.a. w.e.f. 02.02.07 till date of disbursement. The same was followed by reminder notice dated 14.05.13. Notice dated 14.05.13 was also served on Sr. Divisional Manager of OP by speed post which is annexure-C/8. Hence this complaint for directing OP to pay accidental benefits of policy no.1124131948 amounting to Rs.2 lakhs, policy no.113202470 for Rs.6.50 lakhs. They have also prayed for claim on account of death as well as accidental benefit under policy no.112053014 for Rs.6 lakhs and policy no.114799583 for Rs.55 lakhs. They have also claimed compensation of Rs.2 lakhs on account of harassment.
6. The OP was served for 07.08.15 and copy of complaint was supplied. It was directed to file WS within 8 weeks. The OP failed to file WS and its right to file WS was closed vide order dated 07.12.16.
7. In their evidence the complainant no.1 filed her own affidavit. OP was given liberty to file written argument vide  dated  03.05.17. It has filed the same.
8. The WS filed by OP on 02.05.17 is available on record. Strictly speaking the same cannot be looked into because right to file WS has been closed prior to its filing.  Still I have gone through the same to ensure that no injustice is done to the OP.
9. The defence taken by the OP is that complaint is barred by limitation. According to it under policy no.112431948 and 113202470 payment made by cheques dated 11.11.08 for Rs.5,16,400/- and Rs.21,27,450/- was duly encashed by the complainant on 28.11.08. The present complaint filed in 2013 is almost six years after the death and five years from date of payment under some of the policies. It is also pleaded that policy no.112053014 was assigned to LIC Housing Finance Limited for valuable consideration as per Section 38 of Insurance Act 1938 and therefore the claim of said policy is not maintainable.  Copy of status of  said policy is annexure-C/3 collectively. The complainants have not provided details as to when they lodged claim of policy no.114799583.
10. The complainant has filed written arguments. I have gone through the material on record and heard arguments advanced by counsel for the complainant. The obtaining of policies by Shri Anil Kumar Malik now deceased is not in dispute. Payment of death benefit in respect of two policies dated 22.05.98 and 14.06.02  is also not in dispute.
11. The first objection taken by the OP is regarding complaint  being barred by limitation. OP has tried to calculate limitation from date of death i.e. 01.02.07 or 28.11.08 on which date the complainant encashed two cheques in respect of death benefit pertaining to policy date 22.05.98 and 14.06.02.
12. On the other hand the complainant stated that date of death is not at all relevant for calculating the limitation. Similarly date of encashment of two cheques in respect of death benefit is not relevant. The relevant date is date of repudiation. In the instant case once the OP closed the case on 11.09.09 by which date the viscera report was not received. The non receiving of viscera report was not in the control of the complainant. The complainant had to move an application before the court of Shri Deepak Dabas, M.M. Tis Hazari for calling upon Police to submit viscera report. It was on said application that the viscera report  was filed by SHO P.S. New Delhi Railway Station on 04.03.10. After obtaining copy of said report, the complainant served notice dated 08.03.13 which has not been responded by the OP till date. Hence it is the case in which OP has not repudiated the claim and therefore the complaint is within limitation.
13. In support of his submission the counsel for the complainant relied upon decision in R.P. no.2327/12 titled as Japjeet Singh Chadha vs. United India Insurance Company Ltd. decided by NC on 06.05.14. In the said case it was held that since review had not been decided by the insurance company/ OP, the NC was of the view  that in the peculiar facts of the case, cause of action was still continuing. The same squarely applies to the case in hand.
14. The other defence which has not been specifically taken by the OP but can be inferred is that death of Shri Anil Kumar Malik was not  accidental. According to OP it was a suicide. This plea in respect of the same insured has already been negatived by NC in CC no.160/10 titled as Smt. Manali Malik and others vs. Oriental Insurance Company Ltd decided on 24.05.16 and by the District Forum, North West, Delhi in CC no.894/16 titled as Smt. Manali Malik and others vs. Life Insurance Company decided on 30.07.19. Counsel for the complainant submitted that OP has made payment in respect of CC no.894/16 decided by District Forum, North West, without filing any appeal.
15. In CC no.160/10 Supra NC held that OP did not think it necessary to correspond with the police officials and facilitate in obtaining the  viscera report. On the contrary they closed the case for non submission of viscera report on 11.09.09. The complainant no.1 was in deep shock and the family was grief stricken, which took a lot of time to reconcile and muster courage to face the harsh  realities of life.
16. The NC held that doctor who conducted post-mortem opined that the cause of death is shock and hemorrhagic shock due to ante mortem injuries to cranio cerebral damage associated with injuries to chest organ produced by heavy blunt force impact. All injuries were ante mortem in nature, recent in duration and possible to cause by manner as alleged.
17. In para 12 of the  judgement the NC observed that OP is well known organisation which has so many employees. Investigators/ surveyors, at its command. As a matter of fact the investigators did not play a significant role. The duty of investigator is to work hard and dig out the caused, properly. The OP should have known that it was the OP and nobody else to carry the ball in proving that it was a case of suicide. They should have procured the viscera report, immediately,  reopen the case and decide the same, as per well settled canons of law and justice.
18. In IDBI Federal Life Insurance Company Ltd. vs. Anuva Ghosal III (2015) CPJ 503 NC held that there is a presumption of law against a normal and sane person committing suicide. Hence the allegation of suicide has to be established from surrounding circumstance like evidence of recent psychiatric care, treatment for depression, unhappiness, change in employment circumstances, interpersonal disruptions at home or at work place, unusual behaviour etc. It was further held that it is trite that issue of suicide is one of fact and burden to prove this fact is on the insurer.
19. In R.P. no.4050/2006 titled as Oriental Insurance Company Ltd. vs. Gangu Bai decided by NC on 08.12.10 it was held tthat insurer relied on report of the investigator appointed by it to conclude that complainant’s husband committed suicide. However it was significant to note that insurer had not filed any affidavit before  the Fora below in respect of these findings. Similarly in this case affidavit of investigation has not been filed.
20. In Bajaj Allianz General Insurance Company Ltd. vs. Jayantibhai Nathanbhai Monpara, IV (2014) CPJ 42 NC held that in order to repudiate the claim lodged by the complainants, the insurance company was required to prove by independent evidence that the deceased had actually committed suicide.
21. In Civil Appeal no.4487 of 2004 titled as Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd  decided by Hon’ble Supreme Court on 24.08.09 it was held that the  insurance company cannot go on appointing surveyor one after another so as to get a tailor made report to the satisfaction of the insurance company. If for any reason, the report of the surveyor is not acceptable, the insurer has to give valid reason for not accepting the report. Scheme of Section 64-UM of the Insurance Act shows that the insurer cannot appoint a second surveyor just as a matter of course.
22. The aforesaid view was followed in CC no.399/2002 titled as Sona Ceramic vs. New India Assurance Company Ltd decided on 01.05.15 by NC and United India Insurance Company Ltd. vs. Sheela III (2014) CPJ 64 NC,
23. In para 24 of the judgement in Manali Malik vs. Oriental Insurance Company the NC observed that  perusal of viscera report and two inquest reports showed  that there was no link that suicide was committed. Hence the complaint was allowed and OP was directed to pay Rs.1 crore alongwith interest @6% p.a. we.f. 02.02.07 till realisation  and Rs.50,000/- as compensation and litigation cost.
24. The aforesaid decision pertains to insured of the present case and is directly applicable,
25. Now one thing remain. That is that OP had stated that policy no.112053014 was assigned by the deceased to LIC Housing Finance Ltd. for valuable consideration and as per Section 38 of the Insurance Act, the claim of said policy is not maintainable.
26. The counsel for complainant submitted that said loan has already been repaid by the deceased and the  complainant got NOC from LIC Housing Finance Ltd. He filed the said NOC before the OP vide letter copy of which be placed on record during arguments. The said letter contains impress ion of rubber seal of OP in token of receiving the same.
27. In view of the above discussions OP is directed to pay accidental claim benefit of Rs.8,50,000/- in terms  of policy no.112431948 and policy no.1132024070. The OP is also directed to release benefit on account of death as well as accidental claim in respect of policy no.112053014, death plus accidental plus DAB of policy no.114799583.
28. The OP is also directed to pay interest on the aforesaid sum @6% p.a. from 02.02.07 till the date of disbursement. OP will also pay litigation cost of Rs.1 lakh to the complainant  as the matter has been dragged from 2007 till date. Order be complied within 45 days from receipt of copy of this order.
29. Copy of the order be sent to both the parties free of cost.
30. File be consigned to record room.

                                                                                                                                                                                                                                                                        (O.P. GUPTA)                                                                                                                              MEMBER (JUDICIAL)