NEW INDIA ASSURANCE CO LTD vs Anju Shamra

CHALLENGE in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), by the New India Assurance Company Ltd. (for short "the Insurance Company"), is to order dated 04.09.2008 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla, in First Appeal No. 283 of 2007. By the impugned order, the State Commission, while overturning the order, dated 31.05.2007, passed by the District Consumer Disputes Redressal Forum, Shimla in Complaint No. 64 of 2004, has allowed the claim preferred by the Complainants and directed the Insurance Company to pay to them a sum Rs. 2,00,000/ - along with interest @ 9% p.a. besides a compensation of Rs. 25,000/ - for causing harassment and torture on account of repudiation of their claim under a Life Insurance Policy.

SHORN of unnecessary details, the facts material for adjudication of the controversy may be stated thus: - Late Sh. Ajay Kumar Bashisht, husband of Complainant No. 1 and father of Complainant No. 2 was working as a daily wager electrician in Irrigation and Public Health (I&PH) Department of Government of Himachal Pradesh, (for short "the Employer"), Opposite Parties No. 2 & 3 in the complaint. The Employer had got its daily wagers as well as work charged workers insured with the Insurance Company under Group Personal Accident Insurance Scheme. The sum assured under the policy was Rs. 2,00,000/ - per person. The Clause, under the heading "Coverages" relevant for the case, reads as follows: - "1. COVERAGES: - The policy covers (i) Death (ii) Loss of body parts (iii) Permanent Total Disability (iv) Permanent Partial Disability not less than 50% due to any type of accident including Road and natural Calamities like landslides, avalanches, floods, drowning, tree falling, snake bites. This however does not include natural death attributed to any kind of disease. It is also certified that this coverage is valid on 24 hours basis world -wide and not only during working hours." .

THE say of the Complainants was that in the month of October 1995, on account of some injuries on his stomach, the deceased (Insured) had made a representation to the Employer to assign him light duties in the office. He received another stomach injury sometime in the month of January, 2000 while working on a transmission line and ultimately, because of the said injury, he passed away on 14.11.2000. On his demise the Complainants preferred claim under the said policy on the ground that the deceased had succumbed to stomach injury, suffered by him while on official duty and, therefore, was entitled to compensation under the said policy. As there was no response to the claim by the Insurance Company, on 10.12.2002, the Complainants got issued a legal notice to the Insurance Company, demanding settlement of their claim. In response, vide letter dated 13.12.2002, the Insurance Company informed the Complainants that it had not received any claim from the Employer till that date. They were, accordingly, advised to take up the matter with the Employer. Nevertheless, they were informed that coverage under the Personal Accident Policy was death/injury due to accident and cases of accidental death/injury had to be sent to them by the Employer along with the police FIR and postmortem report and other relevant documents. Dis -satisfied with the said response, the Complainants filed the Complaint against the Insurance Company as also the Employer, inter alia, praying for a direction to them to pay the assured amount of Rs. 2,00,000/ - along with interest @ 18% p.a. from the date of the death till payment along -with general damages amounting to Rs. 45,000/ -. The Complaint was resisted by the Opposite Parties. In its written version, the Insurance Company pleaded that apart from the fact that relevant documents required for settlement of the claim were never submitted by the Employer with them, there was no evidence to show that the death of the insured was due to accident. It was alleged that the Complainants had concocted the story of accident just to play fraud on the Insurance Company, as in the legal notice dated 10.12.2002, there was not even a whisper of any accident having taken place.

IN the written version filed by the Employer, the stand of the Complainants, viz. that the death of the Insured was on account of accident while he was on duty, was strongly refuted. For the sake of ready reference, the relevant portion of the written version filed on behalf of the Employer, namely the State of Himachal Pradesh, is extracted below: - "1. The contents of para -4 are wrong hence denied. The death of Sh. Ajay Kumar Electrician was not an accidental death but due to kidney infection which was transplanted some time back before his death. Thus the claim of the applicants is baseless and wrong as the policy covers only accidental cases. It is emphatically denied that she filed any claim with the respondents. However, an application has been received on 15.03.2002 and the matter was examined and she was informed that natural death is not covered under this scheme. The claim of applicants that deceased suffered some injury on his stomach during 10/95 while he was on duty causing damage to his kidney is merely a concoction and no such injury has been caused nor the death in 11/2000 can be attributed to the injury of 1995. If any injury received to any worker on duty the deptt. have to refer the case to concerned workman compensation Act Commissioner. But it is not on record and also not informed to department by the deceased while received injury. Moreover, the deceased never made any request to department that he has received injury in stomach. The claim of the applicants that the deceased received another stomach injury during January, 2000 while working on transmission line which (sic) caused the reason of his death is absolutely wrong. I&PH Deptt. has no work to do on transmission line as the transmission lines are being maintained by the H.P.S.E.B. This deptt. has only to check internal wiring upto panel board in Pump House."

ON evaluation of the material on record, including the opinion of one Dr. D.J. Dasgupta, a former Professor and Head of Department of Medicine and Principal, Indira Gandhi Medical College, Shimla, the medical certificates and the post mortem report, the District Forum came to the conclusion that since the deceased was patient of chronic kidney renal transplant rejection, it was not a case of accidental death and therefore, the claim was not covered under the policy. Consequently, the Complaint was dismissed by the District Forum.

BEING aggrieved, the Complainants filed Appeal before the State Commission. Placing heavy reliance on the dictionary meaning of the word "accident" and observing that the said word used in the insurance policy was in the ordinary sense of the word, i.e. an unlooked mishap or untoward event which is not expected or designed, the State Commission has concluded that as the death of the insured could not be attributed to any of his own acts and/or should have been designed by him, his death was accidental and therefore, the claim was covered under the Policy. Consequently, the State Commission allowed the Complaint and issued the afore -stated directions. Hence, the present Revision Petition.

MR . Vikram Rawal and Mr. S.K. Tyagi, Advocates had entered appearance on behalf of the Complainants. However, on the last date of hearing, viz. 19.11.2014 and even at the time of final hearing of the case the Complainants remained unrepresented. Accordingly, we have heard Mr. Nitesh, Learned Counsel for the Petitioner.

LEARNED Counsel strenuously urged that there is no iota of evidence on record to even remotely suggest that the deceased had met with an accident during the course of his employment, resulting in his death and, therefore, the State Commission has committed a patent illegality in holding that the cause of death of the deceased was on account of accident by assigning a dictionary meaning to the word "accident". It was asserted that the insured had expired because of rejection of kidney after the transplant and, therefore, the claim was correctly repudiated.

HAVING appraised the material on record, we find substance in the stand of the Insurance Company. It is trite law that in a contract of Insurance, the rights and obligations of the parties are governed by the terms of the contract. The contract of Insurance has to be strictly construed on its own terms to determine the extent of liability and no exception can be made on the ground of equity. In this regard, the following observations by a Constitution Bench of the Hon''ble Supreme Court in General Assurance Society Ltd. Vs. Chandmull Jain, 1966 3 SCR 500 are apt: - "In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves."

AGAIN , in United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, 2004 8 SCC 644, the Supreme Court observed as follows: "The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended."

REFERRING to a catena of decisions on the point, in Suraj Mal Ram Niwas Oil Mills Private Limited Vs. United India Insurance Company Limited and Anr., 2010 10 SCC 567, the Supreme Court has opined that in construing the terms of a contract of insurance, the words used therein must be given paramount importance and interpreted as expressed without any addition, deletion or substitution. The endeavor of the court should always be to interpret the words in which the contract is expressed by the parties.

TESTED on the touchstone of the aforenoted principles, to be borne in mind while construing the terms of an insurance contract, in our view, on facts at hand, the exercise undertaken by the State Commission in ascribing an expansive meaning to the word "accident", in order to cover the claim under the policy, was unwarranted. The terms of coverage under the policy, on death of an Insured, extracted above, are unambiguous. The short question for consideration was whether the death of the deceased was on account of any type of accident or a natural death attributed to any kind of disease, as the policy specifically excludes the claim if the death is attributed to any kind of disease.

AT the outset we may note that neither in the legal notice nor in the complaint, the actual date of accident either in the year 1995 or in the year 2000 is disclosed. Nor a shred of evidence has been adduced by the Complainants in this behalf. As a matter of fact, the afore -extracted paragraph of the written version filed by the Himachal Government shows that at no point of time any incident of accident was reported to any official of the Employer or for that matter even to a co -worker. It is not the case of the Complainants that at the time of accident, he was working alone on the transmission line. Assignment of any duty on the transmission line, where the deceased is stated to have suffered stomach injury, is also refuted by the Employer. It is intriguing that if the alleged injury was so severe that it ultimately proved fatal, it went unnoticed at the workplace. Who removed him to the hospital is also left to ones imagination? On the contrary, what we have on record are the medical and death certificates, issued by the Post Graduate Institute of Medical Education and Research (PGI), Chandigarh. These certificates'' issued by the Department of Nephrology, PGI, clearly indicate that the deceased had undergone an unsuccessful renal transplant. One of the certificates'' records that the deceased was a patient of chronic transplant rejection. The documentary evidence on record leads to an irresistible conclusion that the death of the Insured was natural, directly attributable to kidney failure and was not accidental or homicidal. In our opinion, not being a case of accidental death, it is not covered under the policy and therefore, there was no deficiency in service on the part of the Insurance Company in repudiating the claim preferred by the Complainants. For the aforegoing reasons, we are constrained to set aside the impugned order and dismiss the complaint but with no order as to costs.

VIDE Order dated 20.11.2008, as a pre -condition for interim stay, the Petitioner was directed to deposit 50% of the amount awarded by the State Commission with the District Forum. It would be open to the Petitioner to withdraw the amount so deposited along with accrued interest, if any.

THE Revision Petition stands disposed of accordingly.