AI Structured Summary
Not yet generated for this judgment
Judgment
Avm J. Rajendra, Avsm, Vsm (Retd.), Member
The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) against the Order dated 05.06.2018 passed by the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as “the State Commission”), in Consumer Complaint No. 294 of 2015, wherein the Complaint filed by the Complainant (Respondent No.1 herein) was allowed in part.
There was 14 days delay in filing the FA. For reasons stated in IA/14446/2018, the delay was condoned on 21.08.2018.
Brief facts of the case as per the Complainant are that, during morning hours on 01.08.2012, Smt Laxmi Sinha, mother of the Complainant was replacing an empty LPG gas cylinder in the kitchen with a new one. She removed seal of the cap of a full LPG cylinder supplied by Respondent No.3 for fixing the regulator. But, before she could do it, there was an explosion and she caught fire. To save her, Sri Jogendra Sinha and Sri Rajesh Sinha, the father and younger brother of the Complainant rushed into the kitchen. They too got engulfed in the fire. The local people rushed to save the injured. Fire Brigade arrived and controlled the fire.
All the three injured persons (mother, father and brother of the Complainant) were rushed to Jawaharlal Nehru Memorial Hospital at Kalyani, Nadia. Later, they all were shifted to NRS Medical College and Hospital, Kolkata, where Shri Jogendra Sinha expired on 04.08.2012, Shri Rajesh Sinha expired on 04.08.2012 and Smt Laxmi Sinha expired on 07.08.2012. Pursuant to the accident, a report was filed in respect of the accident involving Shri Rajesh Kumar Sinha, Shri Jogendra Sinha and Smt Laxmi Sinha respectively at Entally PS on 01.08.2012 and at Bizpur P.S on 05.08.2012. In the said cases, Final Report was prepared. Also, a separate inquiry was held by the Fire Department which had also given its final report into the accident.
As per the Complainant, Hindustan Petroleum Corporation Ltd (HPCL- Respondent No.2) purchases accident insurance policies by the National Insurance Company Ltd (Appellant herein) towards loss and damage to life and property of each bonafide LPG consumer and their families towards accidental death or damage caused by faulty and/or defective LPG Cylinders supplied by it. As per the said policy, in case of death of the consumer or his family member, the legal heir of the consumer is entitled for a compensation (to be paid by the insurer) of Rs.15,00,000/- for every life lost in the said accident.
Regarding the present consumer, the policy No. allotted is 251100/46/12/950000206, valid from 02.05.2012 to 01.05.2013. Accordingly, after the said accident, the Complainant/Respondent No.1 being the only surviving legal heir of the deceased persons, made a claim against the death and Medical Expenses of late Smt Laxmi Sinha, late Shri Jogendra Sinha and late Shri Rajesh Sinha, with the Appellant through Respondent No.2, vide claim No. 251100/46/13/9590002973 (Sr. No. l95). It was approved on 09.04.2015 and as an immediate help, in partial discharge of the liability, the Appellant issued an Advance Loss Voucher of Rs.l5,48,438 to Respondent No.2. Thereafter, the Complainant was called and made to sign Receipt for Rs.15,48,438/- on 05.06.2015. However, only Rs. 15,32,924/- was paid and the reasons for deducting Rs.15,514/- was neither informed nor paid. Although the policy covers death claim of Rs.15,00,000/- for loss of life of each person, even after approving the claim and giving an advance loss voucher where Rs.5,00,000/- was paid towards loss of each life, keeping balance Rs.10,00,000/- per person due. Further, in the part payment receipt, the claimant was also made to sign that the company was absolved from all liability present or future arising directly or indirectly out of the said loss or damage under the said policy.
This way, the Appellant defrauded him by actions in sheer derogation of the terms of the policy and the denying the bonafide claim. Due to the obnoxious attitude, utter negligence in service by providing of unchecked and defective LPG cylinder leading to loss of three valuable lives in a painful, pathetic and dreadful accident, the Complainant suffered irreparable loss and mental agony. The Complainant is entitled to proper compensation from the Appellant and Respondents No.2 and 3. Being aggrieved, the Complainant filed the Complaint before the State Commission with the following prayers:
(i) Directing the Appellant and Respondents No.2 & 3 to forthwith pay the Complainant the residual/due amount of the policy concerned amounting to Rs.30,00,000/- (Rupees 10,00,000/- due for each deceased person) along with interest of 12% thereon form 05.06.2015 till date of realization;
(ii) Directing Appellant and Respondents No.2 and 3 to pay compensation of Rs. 10,00,000/- towards the death of the Father and Mother of the Complainant which resulted due to accident caused because of supply of faulty and defective LPG Cylinder by Respondent No.2 and 3;
(iii) Directing Appellant and Respondents No.2 and 3 to pay compensation of Rs. 44,40,000/- towards the death of the younger brother of the claimant which resulted due to accident caused because of supply of faulty and defective LPG Cylinder by Respondent No.2 and 3;
(iv) Directing Respondents to pay the litigation cost of Rs.10,000/- to the Complainant;
(v) Pass such other Order(s) as the Hon’ble Commission may deem fit and proper in the ends of justice;”
The Appellant herein in its written statement filed before the State Commission has taken the plea that the Complaint is not maintainable in law or in fact. The same is barred by the principle of waiver, estoppel and acquiescence. He has no cause of action against the Appellant. The complaint is false, vexatious and suppression of material facts and it is liable to be dismissed. Smt Lakshmi Sinha was a beneficiary of public liability Policy No. 251100/46/12/9500000206 for Oil Industries taken by HPCL, as per terms and conditions agreed by the Oil Industries. The claim of compensation for Personal accident @ Rs.15 Lakhs per person is without any knowledge about the said insurance policy. In terms of Section II of the said policy, under the table of personal accident cover to third parties and property damage at customers' premises where the capital sum insured in the event of death was Rs. 5 Lakh per person. The total Respondent liability was Rs.15,48,438/- for accidental damage in the premises of Smt Laxmi Sinha, which includes Rs.15,514/- payable to Mrs. Rina Mondal, a neighbor, who also sustained injury while trying to save the deceased. As the entire compensation case was dealt with by the complainant, Rs.15,514/- was included with his loss voucher and paid to Mrs. Rina Mondal, with proper intimation to the Complainant as evident from the Appellant's letter dated 09.04.2015. Hence, the Complaint is liable to be dismissed.
The State Commission, vide Order dated 05.01.2018 passed the following Order:
We do not find any lapse on the part of the OP No.3 as a supplier of the cylinder and exonerate him from paying any compensation as claimed in the Complaint.
Hence, ordered that the Complaint be and the same is allowed in part with a cost of Rs.10,000/- to be paid jointly and severally by the OP No.1 and OP No.2 to the Complainant sharing the same in equal proportion.
The OP No.1 is directed to pay Rs.15,00,000/- being the residual insurance claim to the Complainant and the OP No.2 shall pay a compensation of Rs.5,00,000/- to the said Complainant for its deficiency in rendering services which claimed three invaluable lives.
The entire amount has been paid within a span of 45 days from the date of this order, falling which, interest at the rate of 9% shall accrue to the entire amount excluding cost to be paid from the date of default till the amount is fully realized.”
Being aggrieved, the Appellant/Opposite Party has filed the present Appeal with the following prayers:
(a) Set aside the Impugned Order dated 05.06.2018 passed by the Hon’ble State Commission in Complaint Case No.CC/294/2015;
(b) Stay the operation of the Impugned Order dated 05.06.2018 till the disposal of the present Appeal; and
(c) Pass any other such orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.”
The Appellant mainly contended that the State Commission was not justified in awarding additional compensation without appreciating the Survey Report and the Complainant signing an Indemnity Bond at time of full settlement. The State Commission failed to appreciate that the claim was covered under "Third Party Accident" i.e. Section 11 of the Insurance Policy and thus rightly paid as per Point No. 7 of the Schedule to the Policy. The order of State Commission is beyond the Appellant’s liability. The cover up to Rs. 10 Lakhs per person is towards discharge of liability at law, and not for personal accident claims such as that of the Complainant, which warrant payment of Rs.5 Lakhs per person. Therefore the order is not based on facts. The Appellant has also mainly advanced the following grounds:-
(a) The State Commission failed to examine the Insurance Policy dated 02.05.2012 and Survey Report dated 29.01.2014 containing categorical details of compensation payable as against each of the deceased victims.
(b) The State Commission failed to appreciate that survey report is material in understanding the case. The findings and assessment cannot be ignored without valid reasons. He had not challenged the Survey Report. The Hon’ble Apex Court in case of United India Insurance Co. Ltd. v. Roshan Lai Oil Mills Ltd., (2000) 10 SCC 19, held that:
"7. . . . .the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report specially the factors enumerated therein. In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission".
(c) Following the ratio of the above, this Commission in Krishna Enterprises v. Bajaj Allianz General Insurance Co. Ltd., (2013) NCDRC 226, observed as under:
It is well settled through a catena of judgments of this Commission as also of the Hon'ble Supreme Court [New India Assurance Co. Ltd. v. Rohan Lai Oil Mills(2000) 10 SCC 19] that the Surveyor's report has significant evidentiary value and cannot be displaced unless it is contradicted by credible evidence to the contrary."
(d) Notwithstanding the said settled principle of law, the State Commission exceeded the liability of the contracting parties, limited to Clause 13 of the Insurance Policy.
(e) The State Commission failed to appreciate that the matter pertaining to legal liability to pay compensation requires proper adjudication by a civil court, which has not been done. The Appellant is liable only to pay a maximum of Rs.10 Lakhs per person per event. Whereas, Section II is with regard to personal accident cover and damages. Point No. 7 of the Schedule provides coverage for "Personal Accident cover to third parties and customers and property damage at the authorized customer's registered premises", which clearly limits compensation for 'Personal Accident' as Rs. 5,00,000/- per person per event. In Oriental Insurance Co. Ltd. v. Sony Cheriyan, [1999] 6 SCC 451, the Hon'ble Supreme Court held as under:
The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy".
(f) The State Commission failed to discern that there is no provision in the Policy for payment of Rs.10,00,000 per victim in the present case. Therefore, under Section 11 of the Policy read with Point 7(a) of the Schedule, Rs. 5,00,000 per person is admissible in case of death, which has been paid. In New Bihar Biri Leaves Co. and Ors. vs. State of Bihar and Or5., (1981] 1 SCC 537, the Hon'ble Apex Court discussed the maxim, "Qui approbat non reprobate" and observed that:
"48 ....It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract... According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction".
In National Insurance Co. Ltd. and Ors. Vs. P.J. Thomas, 201S[1] ALL MR11, NCDRC has held that:
"14. ....the consent given by a person would be deemed to be a free consent and would be binding upon the parties to the contract, unless it can be shown that it was obtained by exercise of coercion, undue influence, fraud, misrepresentation etc.,"
In General Assurance Society Ltd. v. Chandumul Jain [AIR 1966 SC 1644] the Constitution Bench of the Hon'ble Supreme Court has held that:
11 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. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for fire and extended to cover flood, cyclone, etc. had come into being."
(g) The State Commission ought to have confined the award of compensation within the scope of the Policy. Liability beyond the ambit of the policy cannot be imposed.
The Respondent filed his written objections to the present Appeal wherein he has stated that the occurrence of the accident and death of Shri Jogendra Sinha, Smt Laxmi Sinha and Shri Rajesh Sinha, who are the father, mother and younger brother of the Complainant are undisputed facts. The accident happened due to an accidental explosion resulting from a defective and faulty Gas Cylinder, supplied by HPCL (Respondent No. 2 & 3). The Complainant was paid Rs.15,32,924/- and was deceitfully misrepresented and made to sign certain documents, which, for the first time at this stage is being stated to be an indemnity Bond. Its existence was never stated earlier. Upon Filing of a Complaint before the State Commission, after due consideration of the facts and the materials on record, the learned State Commission on 05.06.2018 directed the Appellant to pay Rs. 15,00,000/- as Residual Insurance Claim, and Respondent No.2 to pay Rs.5,00,000/- for Deficiency in Service and Rs.10,000/- as costs. As Respondent No.2 had already paid Rs.5,00,000/-, the balance is pending. As regards Appeal the Complainant contended that:
(a) It is an admitted position that the accident was due to leakage from defective cylinder, which is corroborated by the report dated 14.09.2012 by the Fire Dept, West Bengal.
(b) The Surveyor was engaged by the Insurance Company and thus their report cannot be relied upon.
(c) The Appellant clearly admitted that the claim of Rs.15,00,000/- (@ Rs.5,00,000/- for each deceased) was allowed based on survey report. A Surveyor has no right or qualification to assess the value/quantum of loss incurred by a person because of death of all his family members at a time. Thus the loss incurred by him cannot be strictly interpreted and limited to Rs.5,00,000 per head.
(d) He studied up to class 8th from a Hindi medium school and thus not acquainted with claim documents and papers in English he was made to sign. After the fateful accident, he was also made to submit death certificates, medical records and signed many papers by Respondent No.3 for the claim. Later, he was informed that Rs.15,48,438/- was sanctioned as Advance Loss and made to sign more papers, which he signed in good faith. Later he was paid only Rs.15,32,924/-.
(e) The State Commission was not bound to adhere to surveyor report. Even the insurance company is not bound to go by the report. The State Commission allowed only such claim which he was entitled to as per policy and has clearly and in unambiguously stated that "We however fail to understand why the OP insurance company, being aware of the fact as per policy guideline towards complainant's entitlement to Rs. 10,00,000/-per victim, paid only half of the entitlement ie. Rs. 15,00,000/- as a whole @Rs.5,00,000/- per victim and obtained from him an undertaking towards the claim once and for all."... Thus it is seen that the observation made by the Hon’ble State Commission is based upon the policy guidelines and the entitlements stipulated therein. Therefore the ground taken in the said paragraph 4D of the First Appeal also stands bad.
(f) The Appellant neatly tried to uphold that Rs.5,00,000/- per victim is the personal accident coverage, while the total liability per victim is restricted to Rs. 10,00,000 including legal liability. Thus, the State Commission passed justified amount only based on the policy.
(g) The total Claim was Rs.84,50,000, including the compensation towards death of father, mother and brother. The State Commission limited the liability by observing
"We have gone through the record which appeared to be devoid of the required documents certifying the parameters for ascertaining the liabilities. The record was not supported by any document about the complainant's younger brother's doing any job at a salary of Rs.10,000/- per month, so were about the supporting documents towards income of his parents. We don't deny the fact that without proper adjudication of liability by a competent civil court, the payment of compensation of Rs.54,40,000/- as claimed under (ii) and (iii) of the prayer part of the complaint was difficult to sanction."
(h) Thus, it is crystal clear that the State Commission has not gone into legal liability of the Appellant and others, but limited itself to the contractual liability as per the policy and awarded compensation of only Rs.5,00,000. As he is only educated till 8th Standard from a Hindi Medium School, the Appellant and Respondent No.2 & 3 jointly tried to befool him by making him sign on various documents to close the case paying only Rs.15,00,000/- against the entitlement of Rs.30,00,000/- which is nothing more than unlawful trade practice.
(i) HPCL purchased an insurance policy to compensate its bonafide subscribers or any third party against loss of life and/or property from accidents. Appellant is only acting for and on behalf of his policy holder, i.e. the Complainant. After passing of the impugned order, the HPCL abided by the said order by paying him Rs.5,00,000/- as compensation. Astonishingly, however, the National Insurance Co. Ltd while merely acting for and on behalf of HPCL has filed this present Appeal with no independent Locus standi. As such the present First Appeal is liable to be dismissed.
The Respondent No.2 (HPCL) objected to the Appeal vide impugned order dated 05.06.2018 of the State Commission vide which HPCL was directed to pay compensation of Rs.5,05,000/-. The same was duly complied with. The HPCL is not liable to pay any additional compensation. The Respondent No.3/OP-3 (Kanchrapara HP Gas Service) objected to the Appeal that it is the distributor of HPCL and supplied the refilled LPG cylinders. The State Commission had exonerated them.
The Appellant/OP-1 filed a rejoinder to the Replies filed by the Respondents and reiterated the submissions as already taken in the present Appeal. The Appellant has also submitted in its Written Submissions encapsulating the matter.
The learned Counsel for the Appellant argued that the Impugned Order erroneously directed the Appellant to pay an additional amount of Rs. 15,00,000 to the Complainant, despite they having already paid the Complainant as per the insurance policy and surveyor's report. The Surveyor assessed the liability being covered under Section 1 of the Policy as Rs.5,00,000 per person, in addition to medical expenses of the deceased victims and a neighbor who was injured in the accident. Compensation, as per the Surveyor's Report, amounting to Rs. 15,48,438/- was paid to the Complainant by the Appellant through Respondent No. 2. Necessary indemnity for the Appellant against all further claims or expenses was obtained on 05.05.2015. The Impugned Order failed to consider the Policy 'on the whole' and for no reason, left out the 'Schedule' which forms an integral part of the Policy. The State Commission overlooked the surveyor report and ignored the inherent 'contributory negligence' in the case. In fact, issues involving such questions could not have been decided summarily by the State Commission and ought to have been mandatorily determined through a trial by a civil court. It also ignored the indemnity signed absolving the Appellant from any further claims. He asserted that Clause 7 of the Policy which stipulates the "Limits of Liability" reads that:
"[Personal Accident Cover to third parties and customers and property damage at authorized customer's registered premises (irrespective of liability of law)
(i) PA. 1 to 5: Rs.5,00,000/- per person per event.
(ii) Medical expense: Rs.15,00,000/- per event (Max. Rs.1,00,000/- per person, immediate relief up-to Rs.25,000/- per person."
The learned Counsel for the Appellant asserted that the Impugned Order however did not consider this clear provision while determining the Appellant’s liability. The same is contrary to the established position that an insurance policy is a "contract" and thus, has to be strictly constructed. He has also relied of the:
(a) The Hon’ble Apex Court in General Assurance Society Ltd. v. Chandumu U Jain & Anr. 1966 AIR 1644 that while interpreting the 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, howsoever reasonable.
(b) Oriental Insurance Co, Ltd. V. Sony Cheriyan, (1999) 6 SCC 451, where the Apex Court reiterated that the insurance policy represents a contract between the parties and hence, the same is to be strictly construed to determine the liability of the insurer.
The learned Counsel asserted that without considering the terms of the policy, the impugned order has, in effect, re-written an agreement, which is beyond its jurisdiction and against the basic tenets of natural Justice. The Order is silent on Surveyor's Report dated 29.01.2014 relying on the 'Schedule' to the Policy and determined the compensation as Rs.5,00,000/- each. In the absence to any challenge to the Report, the same was binding on the parties. The nature of 'surveyor report' was explained in Sri Venkateswara Syndicate v. Oriental Insurance Co, Ltd., (2009) 8 SCC 507, wherein the Hon'ble Supreme Court has held that:
“31, The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by the insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured. "
He further argued that the impugned order states that the undertaking signed by the Complainant s absolving the Appellant from any further claims as void ab initio, which is unfortunate. The Complaint alleged before the State Commission that he was defrauded' by Appellant in sheer derogation of the Policy, without even mentioning specific incident of the purported fraud.
The learned Counsel for the Complainant summarised the pleadings on behalf of the Complainant and painstakingly argued that after the accident and most unfortunate loss of all the family members of the Complainant in a most violent and gruesome manner due to the negligence of the OPs, he was shown all sympathy in public, assured of all assistance and was called to by Respondent No.3 to their office and given Advance Loss Voucher of Rs.15,32,924 against a receipt of Rs.15,48,438. However, before paying same he was deceitfully made to sign on certain documents, which for the first time in this appellate stage, is being stated to be an indemnity Bond. Its existence was never brought to light previously. Upon filing the Complaint before the State Commission against the Appellant and Respondents No. 2 & 3, the State Commission after carefully considering the facts and the material on record and evidence by all the sides passed its judgment dated 05.06.2018 directing the Appellant to pay Rs.15,00,000 as Residual Insurance Claim, and Respondent No.2 to pay Rs.5,00,000 as compensation for deficiency in service and further Appellant and Respondent No.2 to jointly pay Rs.10,000 as Cost of the Proceedings. Respondent No.3, being the supplier of the faulty cylinder, was absolved from all liabilities. In compliance thereof, Respondent No.2 had paid Rs.5,00,000 as compensation. The balance is still pending. He is a very poor person. It is most regrettable that the OPs have resorted to such deceitful stand to deny him basic compensation for such monumental loss which is even un-comprehendible by anyone and dragged him into this protracted litigation, thereby affecting him personally, emotionally, financially and continued to deny him his basic due.
We have examined the pleadings placed on record and the associated documents, and rendered thoughtful consideration to the detailed arguments advanced by the learned Counsels for both the parties.
It is an admitted position that that the accident happened and, as a direct consequence, the entire family of the Complainant consisting of his father, mother and brother died in a most gruesome manner. All legal actions were taken, and this fact is established beyond doubt through police reports and death certificates. It is also an admitted position that the Complainant received Rs.15,48,438/- from OPs, of which Rs.48,438/- was for the cost of treatment of the said three deceased and Ms. Rina Mondal who sustained injuries. Towards the treatment for injuries sustained by Ms Rina Mondal she was paid Rs.15,514. Thus, the Complainant was paid Rs.15,00,000/- and treatment cost of Rs.32,924/- totaling Rs.15,32,924/-.
As regards the quantum of compensation granted by the State Commission, the learned State Commission observed
“We, however, failed to understand why the OP insurance company, being aware of the fact as per policy guidelines towards Complainant’s entitlement to Rs.10,00,000/- per victim, paid only half of the entitlement that is Rs.15,00,000/- as a whole @ Rs.5,00,000/- per victim and obtained from him an undertaking towards the claim being settled once for all. It is conspicuously apparent that the OP No.1 had taken the ignorance of the Complainant about the policy condition as his weapon and managed to procure the subject undertaking which, in the eye of law, stood void ab-initio. The Appellant/Insurance Company, therefore, should not be allowed to escape without paying the due claim of further Rs.15,00,000/- as per policy.”
This observation is corroborated at Page No.60 of the paper book at Serial No. 7 in Schedule which is as follows:
“7. LIMITS OF LIABILITY:
Liability at Law for compensation and claimants cost and expenses:
PER EVENT: Rs 50 LAKHS
PER PERSON: Rs 10 LAKHS
PER YEAR: Rs.100 CRORES
Personal Accident cover to third parties and customer and property damage at authorized customer’s registered premises (irrespective of liability of law)
P.A. 1 to 5: Rs.5,00,000/- per person per event.
Medical expense: Rs.15,00,000/- per event (Max. Rs.1,00,000/- per person, immediate relief up-to Rs.25,000/- per person)
Property damage: Max: Rs.1,00,000/- per event at authorized customers’ registered premises
Per year in aggregate: Rs.8 Crore.”
The contention that the Complainant is covered under "Third Party Accident" i.e. Section-II of the Insurance Policy and thus rightly paid as per Point No. 7 of the Schedule. On being pointed the Schedule to the Policy at page-60, the learned Counsel for the Appellant/Insurance Company agreed that the Schedule of the Insurance Policy provides the Limits of Liability as Rs.10 Lakh per person while the Surveyor Report is silent on this issue. However, as per the learned Counsel for the Appellant, this provision is not applicable to the Complainant.
We are unable to agree to such selective exclusion when the policy is otherwise clear. Even for the sake of argument, if there is some ambiguity, the benefit of the ambiguity naturally flows towards the Complainant who suffered such unimaginable and unacceptable loss which cannot be measured. Therefore, the learned State Commission has rightly awarded the amount of Rs.10 Lakh per victim to the Complainant as per the Policy. It is an admitted position that the Complainant received Rs.15 Lakh in respect of the death of three persons and Rs.32,924/- towards medical expenses totaling Rs.15,32,924. The remaining Rs.15 Lakh is to be paid by the Appellant Insurance Company. The Complainant/Respondent No.1 is also entitled an appropriate interest in the form of compensation on the amount due.
In view of the foregoing discussions, Order dated 05.06.2018 passed by the learned State Commission, West Bengal in CC/ 294 of 2015 is modified as follows:-
ORDER
I. The Appellant/Insurance Company shall pay the remaining amount of Rs.15 Lakh to the Complainant/Respondent No.1, along with interest @ 9% from 09.11.2012 (i.e. three months after the date of receipt of the claim on 10.08.2012) till the date of payment, within a period of one month from the date of this order. In the event of delay, the interest applicable shall be @ 12% per annum from the date of expiry of one month till the realization of the entire amount.
II. The order for Respondent No. 2 to pay a compensation of Rs.5,00,000 for its deficiency in rendering services which claimed three lives is set aside.
III. The Appellant and the Respondent No.2 shall pay jointly and severally cost of litigation quantified as Rs.40,000/- to the Complainant/ Respondent No.1, within one month from the date of this order.
Consequently, the instant First Appeal No. FA/1399/2018 stands disposed of. All the pending Applications, if any, also stand disposed of.
The statutory amount deposited by the Appellant, if any, be refunded after due compliance of the order.