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Judgment
LATE Shri Sarabjit Singh, husband of the complainant, obtained three insurance policies from the petitioner -LIC of India. In addition to the sum assured under the basic plan the said policies provided for additional payment in case the assured was to sustain any bodily injury resulting from the accident and such injury was to within 180 days of its occurrence result in his death. The case of the complainant is that on 24 -10 -2006, late Shri Sarabjit Singh fell accidentally from a tree, while cutting woods from the said tree. He was taken to hospital and was discharged after surgery. This is also the case of the complainant that the deceased was again admitted to hospital on 07 -05 -2007 and discharged on 12 -05 -2007. His condition, however, did not improve and he died on 02 -06 -2007. The case of the complainant is that the death occurred due to the accidental injury sustained by the deceased.
ON claim being lodged with the petitioner the basic sum assured was paid to the complainant but the additional sum payable in case of death due to accidental injury within 180 days from the date of injury was not paid. Being aggrieved, the complainant approached the concerned District Forum by way of three separate complaints. The District Forum directed the insurance company to pay the additional sum to the complainant, alongwith interest on that amount at the rate of 9% per annum. The petitioner was also directed to pay a sum of Rs.5,000/ - as consolidated compensation.
BEING aggrieved from the order of the District Forum the petitioner approached the concerned State Commission by way of an appeal. The said appeal having been dismissed, the petitioner LIC of India is before us by way of these revision petitions. Clause 10 (b) of the insurance policy, to the extent it is relevant reads as under: "In addition to sum assured under basic plan, an additional sum equal to the accidental benefit sum assured under this policy, if the Life Assured shall sustain any bodily injury resulting solely and directly from the accident caused by outward, violent and visible means and such injury shall within 180 days of its occurrence solely, directly and independently of all other causes result in death of the Life Assured. However, such additional sum payable in respect of this policy shall not in any even exceed Rs.50,00,000/ - taking all existing policies of the Life Assured and under individual as well as group schemes including policies with in built accident benefit taken with Life Insurance Corporation of India and other insurance companies."
IT would, thus, be seen that the additional sum equal to the accident benefit sum was payable only if (i) the assured was to sustain a bodily injury resulting solely and directly from the accident caused by outward, violent and visible means, (ii) he was to die within 180 days of the occurrence and (iii) the death was to occur solely and directly due to the accidental injuries sustained by him, independently of all other causes. It is an admitted case that the deceased expired much after 180 days of the occurrence of the injury to him. Therefore, going by the plain words used in the aforesaid clause of the insurance policy, the petitioner is not liable to pay any additional sum to the complainant.
THE District Forum as well as the State Commission relied upon the following view taken by the Hon''ble Supreme Court in M/s. Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd., 2000 1 CPJ 1: "8. It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non -disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since obligation of good faith applied to both equally.
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 standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, respondent cannot claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law."
IN the case before the Hon''ble Supreme Court, neither the exclusion clause was a part of the insurance policy nor was it disclosed to the insured and that led to the Hon''ble Court holding that the insurance company could not claim benefit of the said exclusion clause. However, in the case before this Commission, the clause in the question forms part of the insurance policy and, therefore, it cannot be said that the insured was not aware of the said clause. It is contended by the learned counsel for the complainant that only the cover note was provided to the insured and the full policy containing the aforesaid clause was not delivered to him. The aforesaid contention, however, cannot be accepted because there is no such averment in the complaint. Had the complainant averred that the deceased was not supplied with the insurance policy, the petitioner LIC of India would have got an opportunity not only to rebut the said averment but also lead evidence to prove that the policy was actually delivered to him. Therefore, I am not inclined to accept the contention that the insurance policy was not made available to the deceased.
AS regards drawing attention of the insured to the aforesaid clause, I find that the first policy came to be issued on 09 -06 -2000. The second policy on 29 -11 -2005 and the third policy on 13 -12 -2005. The aforesaid clause is contained in all the three polices. The deceased fell from the tree on 24 -10 -2006 and died on 02 -06 -2007. At no stage he protested against clause 10(b) of the policy on the ground that he was not made aware of the said clause while taking the insurance policy. In fact even the complaint does not contain any such averment. Therefore, it cannot be said that the deceased insured was unaware of the aforesaid clause contained in the insurance policies obtained by him. Consequently the decision of the Hon''ble Supreme Court in Modern Insulators is clearly inapplicable to the facts and circumstances of this case.
IT is next contended by the learned counsel for the complainant that it is unfair to restrict the payment of additional sum only to those cases where the death is to occur within 180 days from the date of sustaining injury and clause 10 (b) of the policy amounts to adopting an unfair trade practice. I, however, cannot accept the contention. In the complaint, the complainant did not impugn the aforesaid clause on the ground that it constituted unfair trade practice. Even otherwise, the expression ''unfair trade practice'' is defined in Section 2(r) of the Consumer Protection Act and the learned counsel for the complainant has not been able to show that incorporating such a clause in the insurance policy would constitute unfair trade practice within the meaning of any of the clauses contained in the said Sub -Section. There is no false representation to the insured nor is there any misleading representation to the public as regards warranty or guarantee of the product or service. The petitioner did not mislead the members of the public within the meaning of clause (ix) or (x) of the aforesaid Sub -Section. It is true that the practices given in Section 2(r) of the Act are inclusive and not exhaustive, but even otherwise, in my opinion, stipulating the clause whereby the insurance company is required to pay additional sum only in case the death to occur within 180 days of sustaining injuries due to accident does not constitute an unfair trade practice.
THE learned counsel for the complainant relies upon the decision of the Hon''ble Supreme Court in Oriental Insurance Co. Ltd. Vs. Sony Cherian, 1999 AIR(SC) 3252 where the Hon''ble Court was concerned with the question as to whether carrying more than permitted number of human beings in a goods vehicle constitutes so fundamental a breach of an insurance policy so as to afford ground to the insurer to altogether deny its liability. It was held that though misuse of the vehicle was somewhat irregular the breach was not so fundamental in nature so as to put an end to the contract unless some factors exist which by themselves had gone to contribute to the causing of the accident. The aforesaid decision has no applicability to the case before this Commission and, therefore, reliance upon the said decision is wholly misplaced.
FOR the reasons stated hereinabove, the impugned orders passed by the District Forum and the State Commission are hereby set aside and the complaints are dismissed. No order as to costs.