Karnataka High Court
Icici Lombard General vs Neeta Mahendrakumar Jain on 13 April, 2023
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WP No.108490/2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.108490/2016 (GM-RES)
BETWEEN:
1. ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
ICICI LOMBARD HEALTH CARE,
ICICI BANK TOWER, PLOT NO.12,
FINANCIAL DISTRICT, NANAKRAM GUDA,
GACHIBOWLI, HYDERABAD-500 032,
REP. BY ITS MANAGING DIRECTOR,
HEREIN REPRESENTED BY
ICICI LOMBARD GENERAL INSURANCE CO.LTD.,
2ND FLOOR, BELLAD AND COMPANY, GOKUL ROAD,
NEAR BANNIGIDAD STOP, HUBBALLI-560 030,
REPRESNETED BY ITS LEGAL MANAGER.
2. ICICI LOMBARD GENERAL INSURANCE CO.LTD.,
2ND FLOOR, BELLAD AND COMPANY,
GOKUL ROAD, HUBBALLI-580 030
REPRESENTED BY ITS LEGAL MANAGER.
...PETITIONERS
(BY SRI RAVINDRA R.MANE, ADVOCATE)
AND:
SMT.NEETA MAHENDRAKUMAR JAIN,
AGE : 46 YEARS, OCC: HOUSEHOLD,
R/O FLAT NO.101, I FLOOR, SHAGUUN APARTMENT,
4TH CROSS, KESHWAPUR, HUBBALLI-580 023.
...RESPONDENT
(BY SRI GANGADHAR S.HOSAKERI, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING THIS COURT TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT, ORDER
OR DIRECTION QUASHING THE JUDGMENT/ORDER AND AWARD
DATED 21.07.2016 PASSED BY THE PERMANENT LOK ADALATH,
DHARWAD, IN PLA PETITION NO.418/2013 PRODUCED AT
ANNEXURE-V & W AND SUCH OTHER RELEIFS.
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WP No.108490/2016
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 12.04.2023 COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by ICICI Lombard General Insurance Company Limited assailing the award passed by the Permanent Lok-Adalat in awarding Rs.25.00 lakhs on account of death of one Smt.Vimalabai Babulal Muthalia who had an accidental coverage under a insurance policy with the petitioners/Insurance Company.
2. Facts leading to the case are as under:
The respondent filed a claim petition before Permanent Lok-Adalat in PLA Petition No.418/2013 alleging that the mother-in-law of respondent herein had taken an insurance cover. The 2nd petitioner issued a personal protect policy bearing No.4111/w- 9924716/00/000, which was valid from 22.08.2012 to 21.08.2013 covering the risk of accidental death and injuries to her mother-in-law by name Smt.Vimalabai Babulal Muthalia and the sum assured was Rs.25.00 lakhs in case of death or total permanent disability. -3- WP No.108490/2016
3. The respondent filed a claim petition alleging that her mother-in-law had an accidental fall on 01.12.2012 from the bed, thereby resulting in fracture of multiple vertebral which later lead to cardio respiratory arrest due to generalized cacheria and septicemia. She ultimately died in the hospital on account of multiple vertebral and cardio respiratory arrest due to generalized cacheria and septicemia. Respondent claims that on account of fall from the bed, she was admitted to the hospital and she was under treatment till 18.12.2012. Respondent claims that despite best care and treatment, policy holder died in hospital on 20.12.2012 while undergoing treatment for the fractures sustained in the accident. Respondent claims that her husband has spent an amount more than Rs.1.00 lakh for treatment of policy holder.
4. The grievance of the respondent before the Permanent Lok-Adalat was that, though necessary documents were furnished to the petitioners/Insurance Company, the petitioners herein instead of settling the -4- WP No.108490/2016 claim have unfairly repudiated the claim alleging breach of insurance policy. Therefore a claim petition is filed claiming compensation of Rs.25.00 lakhs from the petitioners/Insurance Company with interest and cost.
5. The petitioners herein contested the proceedings by filing objections. Respondent and the petitioners led in oral and documentary evidence to substantiate their respective claims.
6. The Tribunal referring to evidence on record has recorded a finding that the policy holder died on account of multiple vertebral and cardio respiratory arrest due to generalized cacheria and septicemia. But however, referring to Ex.P.2 and Ex.P.3, the Tribunal was of the view that root cause of death was on account of multiple vertebral fractures, which she had sustained due to accidental fall from the bed. Therefore, a categorical finding is recorded by the Tribunal indicating that the death of Smt.Vimalabai was on account of injuries sustained by her due to accidental fall from the bed and in consequences of injuries sustained by her, she suffered -5- WP No.108490/2016 cardio respiratory arrest as indicated in Exs.P.2 & P.3. Therefore the Tribunal proceeded to hold that the cardiac arrest was direct consequence of multiple fractures to vertebral and therefore proceeded to allow the claim petition awarding Rs.25.00 lakhs with interest at the rate of 6% per annum. The said award is under challenge.
7. Learned counsel appearing for Insurance Company would vehemently argue and contend that the impugned judgment and award passed by the Permanent Lok-Adalat is patently erroneous and contrary to materials on record. Referring to the material on record, he would point out that the Tribunal has not taken cognizance of the medical documents placed on record by the respondent/herself. Referring to discharge card, he would point out that, the policy holder was known case of hyper tension and she was being under regular treatment in the very hospital and she had an old case of fracture D9 vertebral body and D5 and D12 posterior bulge and an old fracture to right shoulder. Therefore, he would contend that respondent has deliberately not intimated the -6- WP No.108490/2016 insurance company immediately after death and postmortem was not conducted, which was mandatory under the contract while issuing the insurance policy in favour of Smt.Vimalabai. Therefore he would contend that the death purely being on account of cardio respiratory arrest due to generalized cacheria and septicemia, which had absolutely no connection whatever with alleged fall from the bed would not fall within the definition of an accident. All these significant details are not dealt by the Tribunal while awarding compensation of Rs.25.00 lakhs. While pointing out several infirmities in the findings and observations, learned counsel has taken this Court through Annexure-E, which is a discharge card indicating that the death was on account of cardio respiratory arrest. He would point out that multiple vertebral fractures are deliberately inserted by the concerned hospital officials. Referring to one more discharge card which is now produced before this Court for the first time vide Annexure-J, he would vehemently argue and contend that the cause of death is clearly on account of septicemia and -7- WP No.108490/2016 cardio respiratory arrest and the alleged injuries relating to fracture to vertebral is not indicated in this document. Learned counsel has also brought to the notice of this Court that the policy holder was in fact admitted in the month of May, 2012 for Osteoporosis and hyper tension and she was inpatient for five days and she was discharged on 30.05.2012. Therefore, he would point out that all the significant details are not properly dealt, while Annexure-E clearly indicate that she had a old history of fractures to the vertebral and therefore, the old fractures are fraudulently incorporated in the medical records so as to make a wrongful gain. Therefore he would contend that respondent has made a false claim and therefore the Tribunal ought to have dismissed the claim petition.
8. However, counsel appearing for respondent has vehemently argued and made an attempt to counter the claim of the petitioners. Referring to the medical records he would contend that the said document would clearly establish the cause of injury and cause of death. The evidence on record does not indicate that an attempt was -8- WP No.108490/2016 made by the respondent to defraud the insurer and the said allegation are found to be totally ridiculous, false and the same is not substantiated by any rebuttal evidence let in by petitioners. Referring to medical records, he would contend that the same would clearly establish that death was due to injuries suffered on account of fall from bed and therefore the question of postmortem does not arise and therefore a claim petition cannot be dismissed only on account that postmortem was not done in the present case on hand. Referring to the averments made in the statement of objection filed before the Tribunal, he would contend that there is absolutely no serious contest and therefore the evidence led in by the respondent stands substantiated and this fact is rightly appreciated and dealt by the Tribunal while awarding Rs.25.00 lakhs compensation. Therefore he would request this Court to dismiss the writ petition.
9. Heard learned counsel for the petitioners and the learned counsel appearing for the respondent. -9- WP No.108490/2016
10. The medical documents placed on record by the respondent indicates that, respondent along with her husband admitted the policy holder Smt.Vimalabai with one Vivekanand General Hospital, Hubballi on account of fall from the bed at home on 02.12.2012 at around 12.00 p.m. The respondent claims that, she suffered multiple vertebral fractures on account of fall from the bed. The petitioners' insurance company has declined to entertain the claim petition and has proceeded to repudiate the policy on the ground that, the cause of death was due to multiple cardio respiratory arrest due to generalized cacheria and septicemia and therefore the petitioners/ insurance company claimed that the claim is invisible and therefore declined to accept the cause of death was on account of any accidental injuries leading to death of insured. The manner in which, the Tribunal has dealt with this case while awarding a huge sum of Rs.25.00 lakhs has to be viewed very seriously.
11. The Courts and Tribunals have to be very cautious while entertaining claim petitions of such nature.
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WP No.108490/2016From the material placed on record, the Courts and Tribunals have to take pain in examining whether fraud is tangible in a given case as insurance fraud often results in a huge financial loss. The Tribunals and the Courts have to be double cautious when they dealing with cases where, which given an indication in regard to hard fraud where an individual deliberately plans or creates a financial loss. If claim petitions are filed seeking benefits on the life insurance policy of a living person based on fake medical records, the Courts and Tribunals should expect high degree of evidence indicating that the claim petitions is genuine and no fraud is committed against the insurance company.
12. In the present case on hand, the medical records does give an indication that the policy holder had pre-existing conditions. The timing of securing policy would also play a significant role while deciding the claim. It is not in dispute that husband of respondent namely Mahendrakumar obtains a policy covering risk of accident of his mother. This policy is dated 22.08.2012. Now a
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WP No.108490/2016claim petition is filed by contending that the policy holder fell from bed on 01.12.2012 and she dies while undergoing treatment on 20.12.2012. The kith and kin of policy holder intimate the insurance company only on 31.12.2012, while the death has occurred on 20.12.2012. In terms of the insurance policy, the family members of policy holder were required to secure a postmortem report. In the present case on hand, the respondent has not secured a postmortem report and the death is not immediately informed to the insurance company. Death is reported after almost 12 days.
13. Now coming to the medical evidence on record, the discharge card at Annexure-E reveals that the policy holder died on account of cardio respiratory arrest due to generalized cacheria and septicemia. There is also reference to multiple fractures. However, Annexure-E clearly reveals that she has a old history of fracture of D9 vertebral body and old fracture to the shoulder plus bulge over D5 and D12. The insurance company has also placed on record a discharge card issued by the Vivekananda
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WP No.108490/2016General Hospital and the same indicates that the cause of death is shown on account of septicemia and cardio respiratory arrest. This document does not indicate that policy holder had suffered fracture to the vertebral.
14. As per their own records, it is clearly forthcoming that the policy holder was suffering from septicemia. If she was admittedly suffering from septicemia, then the case of respondent that she died on account of fracture of vertebral appears to be doubtful. In the present case on hand, the insurance company has also played its role in not properly contesting the claim petition. The insurance company having regard to the quantum of compensation claimed, ought to have led in rebuttal medical evidence, if the medical records indicate that she had symptoms of septicemia Symptoms of vomiting, feeling dizzy or faint cannot be ruled out. Patient suffering from septicemia often have increased risk of cardio vascular complications and on account of septicemia often organs get affected and one of the main organs which often gets affected on account of septicemia
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WP No.108490/2016is a cardio arrest. Therefore if a patient is suffering from sepsis, it cannot be ruled out that the patient may invariably have a cardiac dysfunction, which is a direct consequence of sever sepsis. Patients who get hospitalized for sepsis are found to be twice has likely to have or die from future coronary heart decease, such as an heart attack.
15. All these significant details are not taken into consideration. Tribunal strangely proceeds to hold that though the death is on account of cardio respiratory arrest due to generalized cacheria and septicemia, but the root cause was multiple vertebral fractures and that led to death is patently erroneous, perverse and the said findings are not supported by any medical evidences. There is absolutely no evidence indicating that the fracture to the vertebra was a direct cause of death.
16. As rightly pointed out by learned counsel appearing for the petitioner/insurance company, if she was admitted on 02.12.2012 and she was alive till 20.12.2012, not a single piece of document is produced to
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WP No.108490/2016substantiate that she was being treated for fracture of vertebral. The medical evidence on record gives an indication that she was a regular patient and it appears that the doctor who was treating the policy holder was a family doctor. She was admitted in May, 2012 for five days. After discharge, a policy is taken by the son of the policy holder and the respondent who is the daughter-in- law is a nominee to the said policy. Therefore, the entire narrative that she fell from the bed and it was an accidental and the injuries sustained by her were on account of an accident appears to be doubtful. Therefore, this Court is of the view that the findings and observations recorded by the Court below are not sustainable. The Tribunal fell in error in not appreciating the slender evidence on record, which even otherwise does not inspire confidence to indicate that the death was on account of accident. The insurance company equally is found to be wanting as they have not properly defended the claim petition, which in all probability has resulted in allowing the claim petition and a huge sum of Rs.25.00 is awarded.
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17. Sepsis may be especially dangerous for people with heart failure. It is a well known fact that the medical experts have found sepsis may account for almost a quarter of deaths in people with heart failure. The first symptoms of septicemia often include feeling dizzy or faint, disorientation, diarrhoea, nausea and vomiting. Among the long-term consequences of sepsis, the increased risk of unexplained cardiovascular complications, acute heart failure is one of the emerging health concerns. Therefore cardiac dysfunction is a consequence of sever sepsis. The medical records produced by the claimants themselves indicate that she was suffering from septicemia and death is on account of cardio respiratory arrest due to generalized cacheria and septicemia.
18. All the significant details are not properly dealt by the Tribunal. The claim is decided in a very casual manner without even examining as to whether claim is deliberate with a view to secure some kind of financial gain. The Tribunal has also not independently verified as
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WP No.108490/2016to whether the present claim petition is intended to make a wrongful gain under untrue and false pretences. The claimants have to establish as to how multiple vertebral fractures would result in death. The said medical evidence establishing direct nexus of death on account of multiple vertebral fractures is not found in the present case on hand. There is also no evidence indicating that the patient had undergone treatment for multiple vertebral fractures, though she was found to be inpatient for almost 20 days.
19. Therefore I am of the view that the documents which are now produced before this Court would have a bearing on the claim petition submitted by respondent. Therefore, the judgment and award rendered by the Tribunal is not sustainable and the matter deserves to be remitted back. The insurance company has to lead a rebuttal medical evidence to demonstrate and establish that the death was not on account of accidental fall. Therefore the judgment and award is liable to be set aside.
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20. For the forgoing reasons, I proceed to pass the following;
ORDER
i) The writ petition is hereby allowed.
ii) The impugned award dated
21.07.2016 passed in PLA Petition
No.418/2013 by the Permanent Lok-
Adalat, Dharwad is hereby set aside.
iii) The matter is remitted back to the
Permanent Lok-Adalat for fresh
consideration.
iv) Since the parties are represented by
their respective counsels, they are
directed to appear before the
Permanent Lok Adalat, Dharwad on
29.05.2023, without expecting any
further notice
SD/-
JUDGE
EM