JUSTICE J. M. MALIK, PRESIDING MEMBER

1. When dallops of mystery surround this case and it is not clear whether, this is a case of accident simpliciter or suicide, in that event what is the duty, cast on this Commission. The -1- counsel for Oriental Insurance Co., the Opposite Party, candidly argued that it is not possible to procure the direct evidence.

2. Late Sh. Anil Kumar Malik, the insured, passed away during the subsistence of the policy on 01.02.2007, as his dead body was found lying on the Railway Track at a distance from Brar Square Railway Station near Km Pole No. 12/10. This complaint was filed by Smt. Monali Malik, his wife and their children, Ms. Rupali Malik and Ms. Gul Malik (both daughters). The insured/deceased was working as Development Officer with the Life Insurance Corporation of India Limited, in Delhi. The insured had obtained policy in the sum of Rs.1,00,00,000/- (Rupees one crore) from the Oriental Insurance Company Ltd. Opposite Party. The death certificate of late Sh. Anil Kumar Malik has been placed on record as Annexure-C-1. The policy and the payment of receipts have been placed on the record as Annexure C-3 (Colly). The factum of his accident was reported by the police vide DD No. 7-A and was marked to S.I. Ashok Kumar, for further investigation. The police sent the viscera to CFSL, Hyderabad, for examination and its report was received, on 20.03.2007.

3. Smt. Manali Malik, the complainant, informed the Oriental Insurance Co. Ltd, the Opposite Party, about the death of her husband, vide letter dated 08.02.2007. Its copy has been annexed as Annexure C-4. The Opposite Party called upon the complainant to submit documents vide letter dated 21.02.2007, annexed as Annexure C-5. The same was replied vide letter dated 28.02.2007, which has been placed on record as Annexure C-6. Thereafter, correspondence went on between the parties. Those copies have been placed on the record as Annexures C-8 and C-9. It is averred that the Opposite Party continued to impress upon the complainant No. 1 to submit the Viscera Report, knowing fully well as also explained in the above said letters that the submission of that document thereof was not in her hand, as it was the prerogative of the police and lies within their domain. It is alleged that the Opposite Party did not think it necessary to correspond with the police officials and facilitate in obtaining the Viscera Report. On the contrary, they closed the case for Non-submission of Viscera Report on 11.09.2009. Copy of the letter dated

11.09.2009 has been placed on the record as Annexure C-10. The complainant No. 1 was in deep shock and the family was grief-stricken, which took a lot of time to reconcile and muster courage to face the harsh realities of life. Complainant No. 1 has two daughters, aged 13 years and 4 years and her aged father-in-law.

4. Thereafter, an application was preferred before the court of Sh. Deepak Dabas, Ld. Metropolitan Magistrate, who ordered that Viscera Report be produced. The complainant received photocopy of the Viscera Report, annexed as Annexure C-12, which was handed-over to the Opposite Party, but it did not ring the bell. A Legal notice was sent on 10.03.2012, its copy has been annexed on the record as Annexure C-13. Ultimately, this complaint was filed on 25.08.2010, with the following prayers:-

a) Declare the closure of the claim by the Opposite Party vide their letter dated

11.09.2009 as illegal and therefore null and void. b) Direct the Opposite Party to release the Death Claim benefit in terms of the policy of Rs.1,00,00,000/- along with interest @24% p.a. w.e.f. 02.02.2007 till the date of realization. c) Award compensation of Rs.1 lakh to the complainants on account of harassment. d) Any other or such other relief as this Honble Forum may deem fit and proper in the facts and circumstances of the case

. DEFENCE :

5. The Opposite Party set up the following defenses. The present complaint is not maintainable in as much as the complainants have not co-operated with the Opposite Party in furnishing the requisite documents, to enable the Company to investigate the claim. Due to non-cooperation, the claim of the complainants was closed as No Claim, vide letter dated 11.09.2009, (Annexure C-10). Thereafter, the complainants furnished the documents on

10.03.2010 (Annexure C-13 (Colly)), and by that time, the valuable time was lost and it was, too, late for the Opposite Party/ Insurance Company to investigate the matter, effectively. There was breach of Condition No. 2 because the complainants did not co-operate with the Investigators. Even, the directions given by this Commission dated 12.07.2011, were not complied with, within time.

6. Again, the death of Sh. Anil Kumar Malik clearly suggests that it was a case of suicide. The complainants are not entitled to any amount under Exception 5 of the policy of Insurance. The Final Report has not been accepted by the Magistrate and, on the contrary, investigations are still being carried out. However, it is note-worthy that final outcome did not see the light of the day. The OP and not complainant is responsible for the same. Mr. Lakshman Dass Arora, the Investigator/Surveyor, vide his report dated 10.03.2011, opined that he deceased might have committed suicide. Again, the Second Investigator, S.S. Consultants, submitted his report on

07.06.2011. It mentioned about alleged circumstances of death, which would be discussed, at a later stage.

7. It is further averred that as a matter of fact, the case F.I.R.No. 165/08 dated 18.09.2008 registered under Sections 406/120BIPC at the Police Station, Economic Offences Wing, New Delhi, atthe instance of certain persons, said to have invested their funds in M/s Yogmaya Insurance Agent Pvt. Ltd., and its other sisterconcerns, through the deceased Anil Kumar Malik and otherDirectors, was registered by PS, Economic Offences Wing, PTSColony, Malviya Nagar, New Delhi. FIR was also registered against its Directors Mrs. Manali Malik, Sh.Om Prakash Malik, her father- in-law, Mrs. Anita Khanna, an employee and others, who were also involved in that case. In the said FIR, it was recorded that the deceased Sh. Anil Kumar was found dead near the Railway Track due to unnatural cause. Later on, it was alleged by the family members of the deceased that he committed suicide. The said FIR further mentions that out of their hard-earned savings, they (complainants) used to invest with the accused company and its sister concerns which are basically family business of the above named accused persons and deceased insured. It was further alleged that the complainants used to give amounts to the deceased and his family members for investment and in turn, the accused persons and the deceased used to pay the interest ranging from 1% to 2% p.m. There were 50% persons who had invested with the accused company which runs into crores. Again, the deceased was involved in investment of huge funds running into crores made by the friends, public and therefore he could have reasons to commit suicide.

8. Again, the complainants are relying upon the report of SHO, dated 04.03.2010, which is reproduced here, as follows :-

It is submitted that on 01.02.2007 an information was received from SM Shri M.K. Chauhan, Safdarjung Railway Station, about a dead-body lying between Safdarjung and Brar Square Railway Station near K.M. Pole No.12/10 vide DD No.7A, which was marked to SI Ashok Kumar. On receipt of DD No.7A, SIAshokKumar reached the spot, i.e., KM Pole No.12/10 near Crossing Gate NO.7, Brar Square Crossing and found dead-body of male, aged about 40/42 yrs., Ht. 5x6

which was scattered between KM Pole NO. 12/10 to 12/17. The body was later identified as of Anil Kumar, S/o. O.P. Malik, R/o BA-240/2, Tagore Garden, One dark brown leather purse containing cash RS.26,900/-, one driving licence, one card of Le Meridian, one car key were recovered from personal search. One car NO. DL-4CNA-0738 (Pajero) and one Mobile No.9810163229 were also seized from road-side, which also belonged to the deceased. Statement of wife, sister and other relatives of the deceased were recorded, who suspected no foul play into the death of the deceased, hence the proceedings u/s 174 Cr.P.C. were initiated. P.M. of the deceased was got conducted and the Dr. opined :

The cause of death is shock and hemorrhagic shock due to ante-mortem injuries tocranio cerebral damage associated with injuries to chest organ produced by heavy blunt force impact. All injuries were ante-mortem in nature, recent in duration and possible to cause by as manner as alleged

. The body was handed over to relatives of deceased. The viscera was sent to CFSL Hyderabad on

20.03.2007 for chemical examination. On 14.08.2009 chemical analysis report was received and subsequent opinion regarding cause of death was obtained, in which the Dr. opined

In reference to CFSL report No.13/CFSL(H)/EE/07/12725 dated 30.04.2008 gave negative test for ethyl alcohol and common poison. After going through the PM report finding which cause of death already mentioned and the deceased was not under the influence of any intoxication at the time of death. From the enquiries conducted, no foul play was suspected, hence the inquest papers were submitted before SDM / Defence Colony, which has been filed by SDM on

15.10.2009 (Copies of DD entries, statements of relatives of deceased, PM report, Viscera report, subsequent opinion are enclosed herewith for perusal). In addition to above, a case FIR No. 165/2008 under Section 406 / 120B IPC has also been registered at PS, EOW against the relatives of the deceased and is pending investigation with Anti-Forgery Section (Copy of FIR is enclosed)

. The Doctor, who conducted Post-Mortem, has opined, as under :-

The cause of death is shock and hemorrhagic shock due to ante-mortem injuries to cranio cerebral damage associated with injuries to chest organ produced by heavy blunt force impact. All injuries were ante-mortem in nature, recent in duration and possible to cause by as manner as alleged

. On 14.08.2009 chemical analysis was received and subsequent opinion regarding cause of death was obtained in which the doctor had opined :-

In reference to CFSL report NO.13/ CFSL(H) EE/ 07/12725 dated 30.04.2008, 2008 gave negative test for ethyl alcohol and common persons. After going through the PM report finding which cause of death already mentioned and the deceased was not under the influence of any intoxication at the time of death

.

9. The OP further submits that it appears that the Police have not issued the final report. The complaint is pre-mature. Intricate questions of law are involved in this case and therefore, the case be sent to the Civil Court. The terms and conditions of the Policy have been annexed as Annexure R-1. All the other allegations have been denied. SUBMISSIONS AND FINDINGS :

10. Counsel for the OP submitted that the deceased was a Development Officer simpliciter. The case was filed against him by the Economic Offence Wing. The case was pending against him, his father and his wife. We have perused the FIR which pertained to the year 2008 (18.09.2008). The suicide, as alleged, was committed, on 01.02.2007. He contended that the family of the deceased also, subsequently, thought that the insured had committed the suicide. He submitted that the First Report given by Investigator Mr. Lakshmandass Arora, as quoted above, clearly goes to show that it was a case of suicide. It must be borne in mind that the Court decides the case on solid and unflappable evidence and not on the opinions of one party or the other. Due to lack of evidence, the factum of suicide hardly stands proved.

11. It was also argued that the complainants did not co-operate. A number of reminders were sent as is evident from the letter dated 31.12.2008 (Annexure R-1), but the complainants did not respond, properly.

12. It is difficult to fathom, how, the OP could expect a widow, having two small children and an aged father-in-law to help the OP. The OP is a well-known organization which has so many employees / Investigators/ Surveyors, at its command. As a matter of fact, the Investigators in this case, have not played a significant role. The duty of the Investigator is to work hard and dig out the evidence, properly. The OP should have known that it was the OP and nobody else to carry the ball in proving that it was a case of suicide. They should have procured the Viscera report, immediately, re-opened the case and decided the case, as per well settled canons of law and justice.

13. In a recent case, titled IDBI Federal Life Insurance Co. Ltd. Vs. Anuva Ghosal, II (2015) , this Commission, held as under :- CPJ 503 (NC) (RP No. 1786 of 2014, decided on 05.01.2015)

11. . 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.

.

14. In Oriental Insurance Co. Ltd. Vs. Gangu Bai & Anr, RP No. 4050 of 2006, decided on this Commission, has held as 08.12.2010, under :

7. We have heard learned counsel for both parties and have gone through the evidence on record. The petitioner / Insurance Co., has relied entirely on the report of the Investigator appointed by it to conclude that the respondents husband committed suicide. However, it is significant to note that he has not filed any affidavit before the Fora below in respect of these findings. Further, the conclusion of the Investigator that the husband of respondent committed suicide because he was in a depressed state of mind following his suspension, cannot be conclusive proof of the fact that he had committed suicide in the absence of supporting evidence and specially since the deceased had been suspended four years prior to the incident and, therefore, there was a little likelihood that this was an immediate provocation and reason for his depression and suicide. On the other hand, the report as well as the detailed investigation conducted by the police has clearly concluded that the husband of the respondent died as a result of accidental drowning by falling into the well. In view of these facts, we see no reason to interfere with the order of the State Commission which is upheld in toto

.

15. This Commission also took similar view in Bajaj Allianz General Insurance Co. Ltd. Vs. Jayantibhai Nathanbhai Monpara, IV (2014) CPJ 42 (NC) [RP No.2493 of 2012, decided on as under 24.07.2014], :

7. We agree with the view taken by the State Commission while reversing the order of the District Forum. It would be seen that even though the deceased insured was suffering from schizophrenia, there was no evidence to prove that she actually committed suicide by jumping into the well. At best it could be said that there was a doubt that keeping in view her ailment she might have jumped into the well. However, such a presumption would be wrong keeping in view the fact that the deceased insured used to carry out agricultural activity regularly on her own and was also a regular member of the society and used to avail of finance for the agricultural operations from the co-operative society. In order to repudiate the claim lodged by the complainants, the petitioner company was required to prove by independent evidence that the deceased insured had actually committed suicide which, in our considered opinion and as rightly concluded by the State Commission in its impugned order, the petitioner insurance co. failed to do

.

16. Our attention was also invited towards the conclusion, dated 10.03.2011, reached by Mr. Lakshmandass Arora & Associates, by the Learned Counsel for OP, which is reproduced here, as under :-

CONCLUSION : On my enquiries, investigation, verification from police record and spot, it is stated that Late Sh. Anil Kumar Malik expired on 1.2.07, but the cause of his death does not seem to be natural. The circumstantial evidences indicate that he might have committed suicide. In normal circumstances, a person will not move on railway tract for getting fresh as doubted in police report that he might have gone for attending the natural call. I have enclosed the photographs of the spot and it can be seen from the photographs that a person required to attend the natural call can do the same on the outer side of the railway crossing rather than moving on the tracks. The area is covered with plants and no jhuggis are there. Also, Late Sh. Anil Kumar Malik was running a firm, namely, Yogmaya Insurance Agent in the name of his wife, which is said to be involved in frauds. He had obtained money from his clients in addition to insurance premiums in lieu of some interest and misappropriates the money. The case is being registered with P.S. EOW. Some time is required to obtain certified copies of the challans / status report of the said case and for further inquiry. As such, I am submitting my interim report indicating the status of my investigation

.

17. The final report, the photographs, etc., were not produced. The above said report is the opinion simpliciter not the conclusive proof. Moreover, the final report dated 23.05.2011 of Investigator Lakshmandass Arora & Associates, carries more value which was not highlighted by the counsel for Opposite Party, which reads :

I contacted Sh. Narayan Singh Meena on phone and he informed me that he is having knowledge about the said case. He was posted as SHO at P.S. Hazrat Nizamuddin Railway at that time. He further informed me that Smt. Monali Malik had identified the body of the deceased at that time. One car and one mobile were also seized from roadside. The proceedings u/s 174 Cr.P.C were initiated. Post-Mortem was conducted and the cause of death was found to be shock and haemorrhage. The viscera was preserved and it was sent to CFSL, Hyderabad for chemical examination, which gave negative test for ethyl alcohol and common poison. No foul play was suspected and the death was accidental in nature. The inquest papers were submitted before ACP and then SDM, Defence Colony which were filed by SDM on 15.10.2009. CONCLUSION : On my enquiries, investigation, verification from police record and spot, it is stated that Late Sh. Anil Kumar Malik expired on

01.02.2007 in an accident on railway lines, Brar Square. DD No. 7A, dated

01.02.2007 was registered at PS Hazrat Nizamuddin Railway. The proceedings u/s 174 Cr.PC were initiated by police. No foul play was suspected by police and they have shown the death as accidental in nature in DD No. 19B. The inquest papers were submitted before ACP and then SDM, Defence Colony which were filed by SDM on 15.10.2009. In reference to CFSL report No. 13/CFSL(H)/EE/ 07/12725 dated 30.04.2008 gave negative test for ethyl alcohol and common poison. After going through the PM report finding which cause of death already mentioned and the deceased was not under the influence of any intoxication at the time of death. I have made inquiry from PS, EOW and I also tried to obtain certified copy of case FIR No. 165/08, PS, EOW, but the same was not issued to me. The said case was registered against Directors of M/s. Yogmaya Insurance Agents Pvt. Ltd. Sh. Anil Kumar Malik is not the Director of the said firm and his death is not having any concern with the said case. Also,Sh.DineshDharandVinodKumar, employed with LIC, have informed me verbally that they have cleared all the dues of Lt. Sh. Anil Kumar in view of police report but they did not provide anything in writing to me. In view of police report and inquiry made from LIC office, no foul play is suspected and the death of Lt. Sh. Anil Kumar was accidental in nature

.

18. It is difficult to fathom, why, the 2 Investigator/Surveyor was appointed. The OP was nd not satisfied with the report of the 1 Investigator. It wanted a Tailor-made report in its favour st and that is why, the second Investigator/ Surveyor, Sh. Suresh Kumar Rathi, Surveyor, S.S. Consultants to investigate the case, was appointed, who, vide its report dated 07.06.2011, observed as under :-

Alleged circumstances of Death :

01. The mobile phone NOKIA was received in off-position from front seat of the car as per DD No. 19B dated 01.02.2007, P.S.H. Nizamuddin. It shows that Mr. Anil Kumar Malik was so much disturbed that he was not ready to listen to anybody on the phone and intention was clear as happened.

02. The vehicle recovered DL-4CAM-0738 Pajero was in locked-condition near the spot of incident also shows the determination of the deceased.

03. The body of the deceased was found in between two lines and the upper portion / head was lying separately. It means the hit with the train took place when the deceased was exactly in between the two lines shows the determination of the deceased. On the other side, if there is any passer- by, then, after hit, the person may go in any side instead of the centre of the track

.

19. It appears that these facts were recorded on false premises. There is not even an iota of evidence which may go to support these facts. It is difficult to fathom, how did, the second Surveyor come to the conclusion that Mr. Anil Kumar Malik was so much disturbed that he was not ready to listen to anybody on phone and intention was clear as happened. When a person is to urinate, he is normally, in a hurry. He does not care, where his telephone/mobile, purse, etc., are left. He goes just in a hurry, not bothering about anything.

20. This reason given by the second Surveyor is neither cogent nor plausible. The vehicle was locked. It does not indicate that he had no intention to return. This Commission has a number of cases, where the cars are stolen, immediately, whenever the owner goes for urination or answering the call of nature without locking the vehicle. The first Investigator stated that some photographs were taken. Those photographs did not see the light of the day for the reasons best known to the OP. The production of those photographs would have gone a long way to elicit the clear position.

21. This is an indisputable fact that the insured got several insurance policies and the complainants have got the amount from all those companies, without any demur. Those companies did not pick up a conflict that this is a case of suicide.

22. In Sri Venkateswara Syndicate Vs. Oriental Insurance Co. Ltd. & Anr., Civil Appeal the Honble Apex Court, observed as under :- No.4487 of 2004, decided on 24.08.2009,

22. .. We also add, that, under this Section the insurance company cannot go on appointing Surveyors one after another so as to get a tailor made report to the satisfaction of the concerned officer of the insurance company, if for any reason, the report of the Surveyors is not acceptable, the insurer has to give valid reason for not accepting the report. Scheme of Section 64-UM particularly, of sub-sections (2), (3) and (4) would show that the insurer cannot appoint a second surveyor just as a matter of course. If for any valid reason the report of the Surveyor is not acceptable to the insurer may be for the reason if there are inherent defects, if it is found to be arbitrary, excessive, exaggerated etc., it must specify cogent reasons, without which it is not free to appoint second Surveyor or Surveyors till it gets a report which would satisfy its interest.

.

23. This view was followed in following cases:- (1) Sona Ceramic Vs. New India Assurance (2) Co. Ltd., Consumer Complaint No.399 of 2002, decided on 01.05.2015 United India Insurance Co. Ltd. Vs. Sheela, III (2014) CPJ 64 (NC) [RP Nos. 2481-2482 of 2013, decided on 21.05.2015].

24. We have also perused the Viscera report and the two inquest reports. There is no inkling that suicide was committed. The OP has failed to prove its case. The case of the complainant stands proved. We hereby direct the OP Insurance Company to pay to the complainant No.1, on behalf of all the complainants, a sum of Rs.1,00,00,000/- (Rupees One Crore) along with interest @ 6% p.a., w.e.f. 02.02.2007, till its realization. We also award compensation and litigation costs, in the sum of Rs.50,000/- in favour of the complainant Nos.1 to 3, and against the OP. The said amount be paid within 90 days from the date of receipt of copy of this order, otherwise, it will carry interest @ 6% p.a., till its realization. ......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER