Before the District Consumer Disputes Redressal Forum, Kangra at Dharamshala, District Kangra (HP)
Consumer Complaint No.143/07
Date of presentation: 31.5.2007
Date of decision: 30.11.2009
Smt. Sandhya Rastogi wife of late Sh. Virender Kumar, resident of H.No.677, Purana Charri Road, K.B. Dharamshala, Tehsil Dharamshala, District Kangra
Complainant
Versus
1. Life Insurance Corporation of India, through it’s Branch Manager, Jeevan Jyoti Opposite War Memorial Civil Lines, Dharamshala, District Kangra (HP)
Opposite parties
Complaint under section 12 of the Consumer Protection Act, 1986
PRESIDENT: R.K.MITTAL
MEMBER: PARDEEP DOGRA
For the complainant: Sh. Rahul Gupta, Advocate
For O.P: Sh. Rajeshwar Sapeya, Advocate
R.K.MITTAL, PRESIDENT (ORAL)
The brief facts of the complaint, as alleged are that Sh. Virender Kumar, (husband of the complainant) was having two Insurance Polices Nos. 150872266, and 15035391, with the opposite party, and he had been regularly paying the premiums of both these Insurance Polices. It is alleged that both the Insurance Policies, held by her husband Sh. Virender Kumar, (herein-in-after referred to as deceased) were stated to be accidental Policies.
It is alleged that the deceased alongwith his family (including the complainant) was on his way to Udaipur on 30.8.2006, in his Alto Car bearing No.HP-39-A-5225 from Delhi to Udaipur. A truck came from the opposite side near Dev Garh (Udaipur) in Rajasthan. However, the deceased could not control his car, and had met with an accident on the night of 30.8.2006, round about 2.30 a.m. near Dev Garh.
All the family members of the deceased had got injured in this accident, and they were shifted to RNT Medical College, and Maharana Bhupal Government Hospital at Udaipur. The deceased was admitted in this hospital on 31.8.2009 vide registration No.33007, Ward No.34, Bed No.19 with the history of Road Traffic Accident. Although, the other family members of the deceased were also admitted in the same hospital, but very shortly, they were discharged from the hospital, after giving the medical treatment. Since, the condition of the deceased was very critical, so on the request of the complainant; he was discharged on 1.9.2006, and was taken to Delhi, where, he was admitted in Jeevan Jyoti Clinic, and Hospital Delhi, from where he was referred to Fortis Hospital Noida on 2.9.06 at 10.30 P.M.
It is alleged that the deceased had died on the way from Jeevan Jyoti Clinic, and Hospital upto Fortis Hospital Noida. It is alleged that the complainant had submitted the claim papers after completing all the formalities for getting the claim from the opposite party. The matter was processed/investigated by the opposite party, and the claim to the tune of Rs.3,27,800/- was given to the complainant under Policy No.150353919, and further claim of Rs.45525/- was also given to the complainant under Policy No.150872266, vide their letter dated 10.11.2006.
It is alleged that the complainant was entitled to get accidental benefits under both the policies, but the opposite party did not release the said accidental benefits to her, for the reasons best known to them. It is alleged that by doing so, the opposite party has indulged ingot unfair trade practice, and they were deficient in rendering proper services to her. She has alleged that the opposite party has not considered her claim in a right prospective, and the accidental benefits, under both the Insurance Policies, to which, she was entitled, and it was wrongly denied by the opposite party. Hence, the complainant has sought the relief seeking directions to the opposite party to pay the accidental benefits of the aforesaid both the insurance Policies. She has also claimed compensation to the tune of Rs.50,000/-, for her mental agony, and harassment.
2. The opposite party has contested this complaint by filing their reply on 4.10.2007, in which they have contended that the complete amount, as due, under both the Insurance Policies, has already been paid to the complainant, and now she is not entitled to any other amount under both these Insurance Policies. The opposite party has also contended that the complainant has not fulfilled the required conditions/requirements of getting the accidental benefits under the aforesaid both Insurance Policies, as per procedure, and their satisfaction. There is no solid proof on the file to prove the accidental death of the deceased. They have also contended that a manipulation has been managed by the complainant to get the accidental benefits, under the aforesaid Insurance Policies. They have contended that there is no deficiency in service on their part, and there is no unfair trade practice, so they have prayed for dismissal of the complaint with costs.
3. The complainant has refuted the contentions of the opposite party, made in their reply, and she has re-asserted the facts/averments of the complaint, in her rejoinder, filed on 8.11.2007. From the pleadings of the parties, the following points were framed by this Forum for determination, on 6.11.2007:-
1. Whether the Opposite party has committed deficiency in service, as alleged? OPC
2. Whether the complaint is not maintainable, as alleged? OPOP
3. Relief
4. We have considered the arguments of Sh. Rahul Gupta, Advocate, learned counsel appearing on behalf of the complainant, and of Sh. Rajeshwar Sapeya, Advocate, learned counsel appearing on behalf of the opposite party, and we have also carefully gone through the case file, facts, and the evidence on record.
5. For the reasons to be recorded hereinafter while discussing the points for determination, our findings on the aforesaid points are as under:-
Point No.1: No
Point No.2: Yes
Relief: The complaint is dismissed as per operative part of the order.
REASONS FOR FINDINGS
POINTS No.1 and 2
6. Since, both these points are inter-linked/interconnected, so in order to avoid repetition in discussion, and for the sake of brevity, both the parties, are taken up together for determination. During the course of arguments, the learned counsel for the complainant has admitted that both the Insurance Policies taken by the deceased, were having clause of “Accidental Benefits”. It is also an admitted fact that the original value of both these Insurance Policies, alongwith their accrual benefits has already been paid to the complainant. The only dispute remains that whether under both these insurance Policies, the complainant is also entitled to get the accidental benefits? If the complainant is able to prove by leading cogent, convincing, strong, reliable, and satisfactory evidence to our entire satisfaction that the deceased had died due to injuries in the road accident, then certainly, the complainant is entitled to get accidental benefits of both these insurance policies.
7. Now, we proceed further to consider how Sh. Varinder Rastogi, had died. The fact is not denied by the opposite party that the Alto Car bearing registration No.HP-39-A-5225, being driven by the deceased, had met with an accident on the early morning of 31.8.2006, round about 2.30 am, near Deg Garh (Udaipur). This fact is also not denied by the opposite party that immediately after the accident, the deceased alongwith his family members, was shifted to RNT Medical College, and “Maharana Bhupal Government Hospital, at Udaipur”. It is also not disputed by the opposite party that on the request of the complainant, the deceased in the injured condition was taken from RNT Medical College, and “Maharana Bhupal Government Hospital, at Udaipur” to Delhi. It is also not disputed by the opposite party that the deceased in the injured condition, was admitted in the Jeevan Jyoti Clinic, and Hospital-Delhi.
8. During the course of arguments, the learned counsel for the complainant has stated at bar, that they had submitted the original documents of the medical treatment of the deceased, in the office of the opposite party, for getting the claim, and they are having only the photo copies with them. He has further stated that for want of availability of the original record, they have filed un-attested photo copies of the record of medical treatment of the deceased, alongwith this complaint, filed before this Forum.
9. However, for the sake of convenience, and fair decision in the case, we also consider the photo copies of the record of medical treatment of the deceased Sh. Varinder Rastogi. We have perused the photo copy of admit-cum-discharge certificate of the deceased issued by Jeevan Jyoti Clinic, and Hospital-Delhi. It looks tht it is not a big hospital. It is a sort of clinic only. When the patient/deceased Sh. Varinder Rastogi, in seriously injured condition in the road accident, is stated to be admitted was shifted from the Government Hospital at Udaipur, we fail to understand that why the complainant had got admitted her seriously injured husband in a small clinic. No qualification with any specialty of the doctor is mentioned on this admit card-cum-discharge slip. Moreover, from the perusal of un-attested photo copy of the death certificate, issued by the Fortis Hospital, Noida, it is revealed out that the deceased was brought dead in the said hospital. There is no cogent, convincing, strong, and reliable evidence on the file, at all, to show that the deceased had died only, due to the injuries received by him in the aforesaid road accident. The chances of failure of his heart, or some other disease, cannot be ruled out, at all. We have considered the rulings cited by the learned counsel for the complainant. The learned counsel for the complainant has cited a ruling I (1993) ACC-308 titled as Baburao Venkatrao Kotgire and another Versus Venkati Jaiwanta Thote and others, of the Hon’ble Bombay High Court. In this ruling, their Lordship has held that in the absence of post mortem report, cause of death can be attributed to the accident. Admittedly, in the present case, neither there is any F.I.R. lodged by any friend/relative of the deceased, in the Police Station of the surrounding area, about the alleged accident, nor the post mortem of the deceased was got done by the complainant, or her relatives, for the reasons best known to them. The learned counsel for the complainant, has further cited another ruling 1989(2)Sim.L.C.-298, titled as Shri Brestu Ram Versus Shri Anant Ram, and others, in which the Hon’ble justice Bhawani Singh, Judge has held that even if no report to the police was made, no adverse inference can be drawn out of this failure. His Lordship was dealing with a civil case in this ruling, in which His Lordship has observed that the Tribunal had drawn certain inferences, as if it was trying a criminal case. It was further held that such a course is not available to the Tribunal. No doubt, this Forum is neither deciding a criminal case, nor a civil case. It is a complaint under the Consumer Protection Act. We are satisfied that in the present case, neither there is any F.I.R. of the alleged accident, nor there is any post mortem report of the deceased Sh. Varinder Rastogi, on the file to show that he had died due to the injuries received by him in the aforesaid admitted accident. Since, there is no iota of evidence on the file before us to prove that the death of the deceased had occurred only due to the injuries received in the aforesaid accident, so for want of evidence on the file, we are unable to hold that the deceased had died, only due to the injuries received him, n the aforesaid accident. Hence, the complainant is not entitled to claim accident benefits of the aforesaid Insurance Polices. Hence, point No.1 is answered in negative, and point no.2 is answered in affirmative.
10. No other point has been argued or urged before us.
Relief
11. In view of our findings on points No.1 and above, the complaint is dismissed leaving the parties to bear their own costs. The copy of this order be sent to the parties, free of costs, by posts, and the file after it’s due completion be consigned to the record-room.
Announced R.K.Mittal
Date: 30.11.2009 President
Pardeep Dogra
Member
Pkw