Oriental Insurance Co. Ltd vs Rishikesh Sandeep Kale & 4 Ors

This revision petition has been filed by the petitioner Oriental Insurance Co. Ltd. against the order dated 14.08.2012 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission') passed in First Appeal No.A/09/590.

Brief facts of the case are that the husband of the respondent No.3 had taken Janta Personal Accident Insurance Policy bearing No.70029/0186, 70029/0187 and 70029/0188 from the petitioner Insurance Company. During the pendency of the policy, the husband of the respondent No.3 died in an accident by falling into a well. The claim was lodged by the respondents. The Insurance Company appointed an investigator to investigate the case and it was revealed to the Insurance Company that deceased had died while he jumped into the well. The Insurance Company had assessed that this was a suicide. There was 39 inches high parapet wall around the well. The claim was accordingly repudiated. The respondents filed a consumer complaint bearing No.CPAC 297/2008 before the District Consumer Complaint Redressal Forum, Yawatmal, (in short 'the District Forum'). The complaint was resisted by the Insurance Company by filing the written statement. However, the District Forum, allowed the complaint and ordered the Insurance Company to pay Rs.1,00,000/- along with interest @ 6% p.a. from 11.08.2008 the date of filing the complaint.

Aggrieved by the order dated 27.02.2009, the opposite party preferred an appeal bearing No.A/09/590 before the State Commission and the State Commission dismissed the appeal vide its order dated 14.08.2012.

Hence the present revision petition.

Heard the learned counsel for the parties and perused the record.

Learned counsel for the petitioner stated that it was definitely a case of suicide as there is no probability of a person falling into the well where there is 39 inches high parapet wall around periphery of the well. Under Janta Personal Accident Insurance Policy, a suicide case comes under the exclusion clause and therefore the claim is not payable. In the present case, the Deceased Life Assured (DLA) died on 07.12.2003, whereas the complaint was filed on 11.08.2008. Clearly, there is a delay of atleast 4 years. The State Commission has not considered this case as a delayed complaint because the State Commission has calculated the delay from the date of attaining majority of respondent Nos.1 & 2. Learned counsel mentioned that though the argument of the complainants has been that the limitation is extended upto minor attaining the age of majority, but the fact is that the complaint has been lodged when respondent Nos.1 & 2 both still remain minor.

The provision in the Consumer Protection Act, 1986 is very clear that a consumer complaint has to be filed within a period of two years from the date of cause of action which in the present case is the death of the DLA. The complaint could have been filed by the wife of the DLA, who is respondent No.3 in the present case as the complaint has not been filed by only the minors. Therefore, in the present case, the extension of limitation till minor achieves majority is not tenable, however, both the fora below have not considered this aspect though it was raised in the written statement. To support his argument learned counsel for the petitioner referred to the judgment of Hon'ble High Court of Delhi in Smt. Abha Yadav and Ors. Vs. Municpal corporation of Delhi and Ors., III (2003) ACC 25. It has been held that:

"10. In the case of Smt. Usha Rani Banerjee & Ors. Vs. Premier Insurance Company Ltd, Madras & Ors. AIR 1983 Allahbad 27 a Division Bench of the Allahabad High Court considered the question on similar facts and held that heirs of a victim of accidental death are tenant-in-common and not joint tenants, interest of each one of them was distinct and separate, none of them is competent to give discharge in respect of the right of the other and where one of such persons is under a disability Section 7 would come into play and extend the period of limitation for the entire body of co-heirs who had a joint right to sue. The division bench after referring to Section 6 and 7 of the Limitation Act held that Section 7 is an exception to the general principle enunciated by Section 6 and held that if more than one person are jointly entitled to institute a suit and if one of them is disabled, time will not run against any of them until the disability ceases to exist. But if one of the persons entitled to institute the suit is competent to give discharge without the concurrence of the other, then time will run against both. In paragraph 9 of the said judgment it was held that in the case of fatal accidents, the interest of legal representatives and heirs is distinct. Each one of them is entitled to claim separate amount of damages. One person can give discharge in respect of his own right but he cannot give discharge in respect of the right of other claimant. In the present case and in the said case also there were two minor claimants which were incapable of giving their consent to their mother and she could not without their consent give discharge. A similar view was taken by the Madhya Pradesh High Court in the case of The Amalgamated Coal Fields Ltd Vs. Mst. Chhotibai and Ors 1093 LAB I. C. 1410."

It was further stated by the learned counsel for the petitioner that after the death of DLA, no intimation was given to the Insurance Company. Apart from this, the matter requires lot of evidence to be produced in the matter for examining whether it was an accident or it was a suicide, therefore, the matter cannot be decided in the summary proceedings under the Consumer Protection Act, 1986 and the complainant should have been asked by the fora below to go to the Civil Court as the complicated questions of facts and law are to be decided in the matter.

It was argued by the learned counsel that according to this judgment of Delhi High Court in Smt. Abha Yadav and Ors. Vs. Municpal corporation of Delhi and Ors. (supra) if more claimants are there for compensation in an accident case and if there is disability in one of them, then the time will definitely be extended for every one of them till the disability is cured. The learned counsel argued that in the present case there was no question of multiple beneficiaries as there was only one nominee and therefore, the mother could have filed the complaint in time.

On the other hand, learned counsel for the respondent/complainant stated that as per Certificate of Insurance dated 09.05.2001 there is only one nominee, who is a minor son. Therefore, until the nominee son attained the majority, the limitation stood extended. Thus, clearly the complaint was filed within time and the fora below have given a clear finding that the complaint has been filed within time.

Coming to the question of death of the DLA, the learned counsel stated that it was a pure case of accident as the DLA slipped off into the well. The Insurance Company has not filed any proof that death of the DLA was due to suicide. There was no FIR lodged in the matter as it was accidental death without any foul play by any other party. It was argued that even the investigator report has not been filed and therefore, it is not clear as to on what ground the investigator has found it to be a suicide case. If the report is not being filed, no inference can be drawn. On the basis of that report only, the presence of parapet wall of 39 inches high cannot turn a normal slipping episode into the well to a suicide case.

Learned counsel for the respondent/complainant further mentioned that there is a delay of 22 days in filing the present revision petition and no proper ground has been mentioned in the application for condonation of delay by the petitioner. Hence, the revision petition is liable to be dismissed only on this count.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record.

Coming to the question of delay in filing the complaint, the State Commission has clearly found that the limitation period stands extended up to the nominee who was a minor attaining the age of majority and the complaint has been filed within that period. Even in the judgment of Delhi High Court in Smt. Abha Yadav and Ors. Vs. Municpal corporation of Delhi and Ors. (supra) referred to by the learned counsel for the petitioner, it has been held that if there are many heirs entitled for getting compensation and if one of them has disability then limitation period shall extend for everybody till disability is cured. In the present case, though it is a case of single nominee and theoretically all the total amount shall be going to that nominee and on the same analogy, limitation period shall extend upto the time this minor nominee attains the majority. Thus, I do not find any illegality in the order dated 14.08.2012 of the State Commission in this regard.

Now coming to the merit of the case, it is seen that both the fora below have given concurrent finding of facts. The cause of death of DLA is a matter of fact, which has been decided concurrently by the fora below that DLA died due to an accident. In such cases, the scope under the revision petition is very limited as held by the Hon'ble Supreme Court in the following cases:-

(1) Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654, wherein the following has been observed:-

"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora."

(2) Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, wherein, the Hon'ble Supreme Court has held the following:

"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."

Based on the above authoritative judgments of the Hon'ble Supreme Court, it is clear that the facts cannot be reassessed by this Commission in revision petition. Both the fora below have not accepted this case to be a suicide case. Moreover, no evidence has been filed by the Insurance Company that this was a suicide case. Even investigator report has not been filed, therefore, against the concurrent finding of facts by the fora below, this Commission is not inclined to take the opposite view that this was a suicide case as there was parapet wall around the well. Thus, clearly theory of suicide made out by the Insurance Company is not acceptable at this stage. No other ground has been raised by the Insurance Company for repudiating the claim.

On the basis of the above discussion, I do not find any illegality material irregularity or jurisdictional error in the order dated14.08.2012 of the State Commission, which calls for any interference from this Commission. Accordingly, RP No.421 of 2013 is dismissed.