IDBI FEDERAL LIFE INSURANCE CO. LTD. v. ANUVA GHOSAL & ANR.

(Pronounced on 5th day of January, 2015) D.K. JAIN, J. PRESIDENT IDBI Federal Life Insurance Company Ltd., formerly known as IDBI Fortis Life Insurance Company Ltd., (for short the Insurance Company) has filed this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 challenging order dated 30.01.2014, passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (for short the State Commission) in SC Case No. FA/503/12. By the impugned order, the State Commission has affirmed the order dated 11.06.2012, made by the District Consumer Disputes Redressal Forum, Birhbum (for short the District Forum) in CF Case No. CC/59/O/2010 whereby the District Forum has allowed the complaint filed by Respondent No. 1, with a direction to the Insurance Company to pay to her the assured amount, along-with interest @ 10% p.a. from the date of the claim till the date of actual payment.

2. Material facts, necessary for disposal of the Petition, are as follows: In September 2009, the son of Respondent No. 1/Complainant, Late Sh. Samrat Ghosal, purchased a flat by raising a home loan of 11,83,000/- from IDBI Bank, Respondent No. 2 herein. The said Bank had solicited an insurance policy from him in its capacity as the corporate agent of the Insurance Company. Accordingly, the deceased obtained IDBI Fortis Home Insurance Protection Plan Policy. The sum assured was 12,11,160/-. The date of commencement of the policy was 23.12.2009, which was valid for 20 years. The policy was assigned in favour of IDBI Bank to secure the home loan.

3. On 19.01.2010, the Insured, Samrat Ghosal, was found lying in his flat in an unconscious condition. He was removed to MRB Hospital, where he was declared brought dead. The police started inquest proceedings as a case of unnatural death. According to the report thepost mortem cause of death of Samrat Ghosal was due to the effects of consumption of some toxic substance per mouth in nature.anti mortem

4. On the death of the Insured, being his mother and the nominee in the policy, Respondent No.

1 preferred claim with the Insurance Company under the aforesaid policy. However, the Insurance Company repudiated her claim, vide letter dated 06.07.2010, stating thus:

We would like to draw your attention to the Suicide Exclusion Clause mentioned in the policy terms and condition which states that We will not pay any benefits if the Insured person(s), whether sane or insane, commits suicide within 12 months from the date of commencement of this policy. As per the policy document the Date of Commencement is 23.12.2009 and as per the Death Certificate the Date of Death is 19.01.2010. On the basis of the police reports and the postmortem report it is evident that the due to consumption of some toxic substance. We,cause of death is Suicide

therefore, regret that we are unable to honour the claim and have to rescind the above policy from inception accordingly.

5. Alleging deficiency in service on the part of the Insurance Company on account of repudiation of claim on frivolous grounds, Respondent No. 1 filed complaint before the District Forum praying for a direction to the Insurance Company to pay the assured amount along-with a compensation of 1,00,000/- towards her mental pain and agony. In the complaint, it was pleaded that the death of the Insured was because of food poisoning as he was living alone and was used to having his food with his friends or at outside eateries.

6. The complaint was contested by the Insurance Company. In its written version, it was stated that following the unnatural death of the Insured within 12 months from the commencement date of the policy, in the investigations by the police there was no indication that the Insured was killed by any other person or any animal or by machinery or by an accident or had died under circumstances raising a reasonable suspicion that some other person had committed the offence. It was pleaded that under clause 4 of the policy, no death benefit was payable if the Insured commits suicide within 12 months of the commencement of the policy. It was asserted that the claim was rightly repudiated and therefore, there was no deficiency on its part. In a separate written version filed on behalf of IDBI Bank, it was pleaded that repayment of loan was not dependent on the settlement or non-settlement of insurance claim made by the Complainant. Dismissal of complaint qua the Bank was prayed for.

7. On appraisal of the material on record, the District Forum observed that the Insurance Company had treated the death of the Insured as suicidal simply by drawing an inference from the police report and the report and that there was no evidence, primary or secondary,post mortem direct or indirect to determine conclusively beyond all reasonable doubts that the deceased Insured had committed suicide. Thus, the District Forum came to the conclusion that repudiation of death claim by the Insurance Company, treating it to be a case of suicide, amounted to deficiency in service on its part. Accordingly, the District Forum allowed the Complaint with the aforestated directions to the Insurance Company.

8. Being dissatisfied with the order of the District Forum, the Insurance Company took up the matter in appeal before the State Commission. On re-appraisal of the material on record the State Commission has also come to the conclusion that the Insurance Company has failed to adduce any independent evidence to prove that the cause of death of the Insured was by suicide. The decision of the District Forum has thus been affirmed. Hence the present Revision Petition.

9. We have heard Ld. Counsel for the parties and perused the material on record. It was vehemently contended by Ld. Counsel for the Insurance Company that the factum of suicide by consuming poison stood proved by: (i) the final report of the police submitted under Section 174 of the Code of Criminal Procedure, 1973 and (ii) the report, wherein it was recordedpost mortem that the stomach of the Insured contained 10 ml reddish liquid with smell like that of a poison having black ground like granules and heamorrhage from the mucus membrane and therefore, the Fora below erred in holding that the Insurance Company had failed to prove that the death of the Insured was on account of suicide. It was asserted that the cause of the death being suicide, within a period of 12 months from the date of commencement of the policy, the Insurance Company was fully justified in repudiating the claim.

10. Ld. Counsel appearing for Respondent No. 1, while supporting the decisions ofPer contra, the lower fora submitted that neither the police report nor the report recorded anypost mortem firm opinion that the cause of death of the Insured was the suicide and therefore, in the absence of any other evidence brought on record by the Insurance Company, no fault could be found with the impugned order.

11 Having bestowed our thoughtful consideration to the material on record, we are of the view that the Revision Petition is bereft of any merit and deserves to be dismissed. It is trite that the issue of suicide is one of fact and burden to prove this fact is on the Insurer. The exact nature of the burden of proving suicide varies from case to case and is undoubtedly, a difficult exercise, particularly when deceaseds family and their friends in the normal course, would be reluctant to co-operate. More so, when there is a presumption of law against a normal and sane person committing suicide. Hence, the allegation of suicide has to be established from surrounding circumstances, like evidence of recent psychiatric care, treatment for depression, unhappiness, change in employment circumstances, interpersonal disruptions at home or at work place, unusual behavior, etc.

12. In the present case, neither the report dated 20.01.2010 nor the final report datedpost mortem 21.05.2010, submitted by the police to the Magistrate, under Section 174 of the Code of Criminal Procedure, 1973 on which, reliance has been placed by the Insurance Company to conclude that the Insured had committed suicide, do not contain even an observation that it was a case of suicide. Admittedly, except for the said documents, no other evidence, primary or secondary, has been adduced by the Insurance Company to discharge the onus to prove that the deceased had committed suicide, so as to bring the claim under the Suicide Exclusion Clause mentioned in the policy terms and conditions. We are in complete agreement with the lower Fora that a mere assertion that the Insured had committed suicide is not sufficient to repudiate the claim preferred by Respondent No. 1. Concurrent finding of fact by both the Fora below, to the effect that the Insurance Company had failed to prove with independent material evidence that the Insured had committed suicide, does not suffer from any illegality, factual or legal, warranting our interference in limited revisional jurisdiction. Resultantly, the Revision Petition is dismissed with costs, quantified at 20,000/-.

13. Vide order dated 24.04.2014, operation of the impugned order was stayed, subject to deposit of 50% of the decretal amount by the Insurance Company. Since the Revision Petition has been dismissed, the amount deposited, with interest accrued thereon, if any, in terms of the said order shall be released by the office to Respondent No.1/Complainant forthwith. The balance amount, as awarded by the District Forum shall be paid by the Insurance Company to the said Respondent within six weeks of the receipt of a copy of this order. ......................J D.K. JAIN PRESIDENT ...................... VINAY KUMAR MEMBER