State Consumer Disputes Redressal Commission
The New India Assurance Company Ltd vs Vatsalabai Dadasaheb Fasate on 10 February, 2022
1 A/149/2018
Date of filing :06.04.2018
Date of order :10.02.2022
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, BENCH AT AURANGABAD.
FIRST APPEAL NO. : 149 OF 2018
IN COMPLAINT CASE NO.: 423 OF 2017
DISTRICT CONSUMER FORUM : AURANGABAD
The New India Assurance Co.Ltd.
Through its authorized signatory,
Divisional Office No.153400, First floor,
Swatantryaveer Savarkar Udyog Bhavan,
Shivaji Nagar, Pune 411 005.
The New India Assurance Co.Ltd. .,
Through its Authorized Signatory,
Mahesh Compound, Adalat Road,
Aurangabad, Dist.Aurangabad. ...APPELLANT
VERSUS
1. Vatsalabai Dadasaheb Fasate,
R/o Rahatgaon, Tq.Paithan,
Dist.Aurangabad.
2. District Agricultural Officer,
District Agriculture Office, Aurangabad,
Dist.Aurangabad. ...RESPONDENTS
CORAM : Smt.S.T.Barne, Hon'ble Presiding Judicial
Member.
Mr.K.M.Lawande, Hon'ble Member.
Present : Adv.M.R.Deshmukh for appellant,
Adv.A.S.Pavse for respondent No.1.
JUDGMENT
(Delivered on 10/02/2022) Per Mr.K.M.Lawande, Hon'ble Member.
1. Being aggrieved by the judgement and order of District Consumer Dispute Redressal Forum Aurangabad in Consumer Complaint No. 2 A/149/2018 423/2017, decided on 27/02/ 2018, the appellant insurance company has filed this appeal.
2. The appellant New India Assurance Company is the opponent No.1 and respondent Vatsalabai Dadasaheb Fasate is the complainant in consumer complaint. They are hereinafter refer to as 'opponent' and 'complainant' as per their status in the consumer complaint. District Consumer Dispute Redressal Forum is hereinafter referred to as the 'District Forum' for the sake of convenience.
3. It is the case of complainant in brief that, her husband was an agriculturist and was having agricultural land at Rahatgaon in gut No. 215. On 23/02/2012, while proceeding to his field on bicycle, he fell down and died in the said accident. The incident was reported to the Police Station, Paithan. The police drew panchnama and handed over the body of the deceased to the complainant. The complainant filed insurance claim to opponent Insurance Company through Taluka Agricultural Officer. Necessary documents were submitted. The complainant was inquiring with the opponents regarding the settlement of her claim. However, the opponent never informed of the pending of the claim and not settled the claim till filing of the complaint. The complainant is the consumer of opponent Insurance Company. Complaint filed consumer complaint before the District Forum requesting directions to opponent Insurance Company to pay Rs.1,00,000/- towards insurance amount with 18% interest and Rs.10,000/- towards agony and Rs.5000/- towards cost of litigation.
3 A/149/2018
4. The opponent Insurance Company resisted the complaint by filing the written statement before the District Forum. In written statement the specific defence was raised that the consumer complaint is barred by limitation U/s 24 A of the Act. The claim was already decided and repudiated on 05/11/2012. The complainant was also informed of the repudiation and she has received the repudiation letter. On merits, it was contended that deceased has lost his life due to cardiac respiratory arrest which cannot be termed as an accident. His death is natural one. Under terms and conditions of Janata Personal Accident Policy and tripartite agreement same is not covered.
5. After hearing of the parties before, District Forum allowed the complaint and directed the opponent insurance company to pay Rs.1,00,000/- with 9% interest from the date of filing of the complaint. The District Forum also awarded Rs.5000/- towards mental agony and Rs.2000/- towards cost of litigation.
6. Being aggrieved by the impugned judgement, the opponent Insurance Company filed the present appeal on the following grounds that the District Forum failed to appreciate the defence of the opponent Insurance Company on limitation. The District Forum failed to appreciate the communication letter dated 17/07/2012 issued by the opponent insurance company to the complainant. Vide said communication the complainant was asked to submit viscera report. The complainant submitted the viscera report on 4 A/149/2018 15/10/2012. The repudiation letter was forwarded on 05/11/2012. The certified copy of the dispatch register was also filed on the record. The complainant has knowledge of the communication. However, she suppressed the facts from the District Forum . The District Forum also failed to appreciate the fact that the deceased died due to heart attack and not out of accident. The post-mortem report specifically mentioned the cause of death of the deceased due to respiratory arrest. The opponent Insurance Company obtained opinion from Dr.Ronge who specifically opined that there is no external or internal injury to the deceased and the deceased died due to cardiac respiratory arrest which is a natural death and cannot be termed as an 'accident'. The District Forum failed to appreciate the tripartite agreement between the insurance company and Government. The District Forum also failed to appreciate terms and conditions of the policy and Government GR. The inclusion and exclusion clauses in the GR dated 04/12/ 2009, wherein the natural death is specifically excluded .
7. Heard ld.Advocate M.R.Deshmukh appeared for the opponent No.1. He argued that the District Forum failed to appreciate the defence of the opponent Insurance Company on limitation. The District Forum failed to appreciate the communication letter dated 17/07/2012 issued by the opponent insurance company to the complainant. Vide said communication the complainant was asked to submit viscera report. The complainant submitted the viscera report on 15/10/2012. The repudiation letter was forwarded on 05/11/2012. The certified copy of the dispatch register was also filed on the record. The complainant has knowledge of the 5 A/149/2018 communication. However, she suppressed the facts from the District Forum. The District Forum also failed to appreciate the fact that the deceased died due to heart attack and not out of accident. The post-mortem report specifically mentioned the cause of death of the deceased due to cardiac respiratory arrest. The opponent Insurance Company obtained opinion from Dr.Ronge who specifically opined that there is no external or internal injury to the deceased and the deceased died due to cardiac respiratory arrest which is a natural death and cannot be termed as an accident. The District Forum failed to appreciate the tripartite agreement between the insurance company and Government. The District Forum also failed to appreciate terms and conditions of the policy and Government GR. The inclusion and exclusion clauses in the GR dated 04/12/ 2009, wherein the natural death is specifically excluded. The ld.Advocate concluded to allow the appeal and requested to squash and set aside the impugned judgement and order.
8. Though ld Advocate A.S.Pawse has filed vakalanama for the complainant, however did not submit written notes of argument in spite of ample opportunity given and remained absent at the time of hearing. The matter is adjourned for order on the basis of the record. Adv.Pawse filed some judgements on 19/01/2022.
9. From the submissions of parties, following points arise for our consideration. We have noted them along with findings against it for the reasons to follow.
6 A/149/2018
Points Answers
(i) Whether the complainant established
deficiency in service on the part of opponents ? -..In affirmative.
(ii) Whether there requires interference in the judgement and Order of the Dist.
Forum? ..In negative (iii) What order? - As per final order REASONING Points (i), (ii) & (iii):
10.1 After submissions of parties and perusal of available record, we are inclined to discuss the issue of limitation first. It appears that the complainant is alleging that she had submitted the claim for getting the insurance amount in year 2012 . It is further alleged that the opponent Insurance Company has not decided the claim till filing of the complaint. Whereas the opponent Insurance Company is contending that the opponent has already repudiated the complainants claim on 05 /11/2012 on the merit. The opponent Insurance Company is also contending that they have filed the copy of dispatch register before the District Forum to show that the complainant is also served the copy of repudiation letter. We have perused the repudiation letter which is at page No. 77 of the appeal compilation and the copy of dispatch register which is at page No. 79 of the appeal 7 A/149/2018 compilation. It appears that the complainant's name is at serial No.1121 in the register along with some other persons. However, on going through the judgement of District Forum, it appears that the District Forum has verified minutely the said dispatch register for the receipt of the complainant. The District Forum has observed that the opponent Insurance Company maintained track reports regarding dispatch of letters for the persons at serial No.1109, 1113 and 1119 only and not for serial No.1121 i.e complainant. We have also verified the photographs of the track reports ,as appearing in xerox form on the top of the copy of xerox copy of dispatch register maintained by the opponent. It reveals the same ,as the District Forum observed that there is no track report for service of repudiation letter on complainant. Therefore, we are inclined to decide the issue of limitation against the opponent Insurance Company.
10.2 We would like to discuss the issue of merit further. It is alleged by the complainant that her husband fell down from bicycle, it is an accident and he died out of said accident. We have perused the documents pertaining to the death of the deceased. At page No.88 of the appeal compilation ,the medical officer has written to police officer on 23/02/12 at 6:45 p.m. that patient Dada Saheb was brought dead. At page No. 89 there is document showing the station diary of Police station, serial No. 45 dated 23/02/2012 at 19-10 hours which is stating that AD is registered U/s 174 of Cr.P.C. and investigation allotted to head constable /130. At page No.90 293 inquest panchnama is on record at 20 hours on 23.02.12 wherein in the opinion as to death of the deceased is mentioned as falling on bicycle. At 8 A/149/2018 page No. 94 PM report is available, stating no signs of injuries on head, skull and brain are mentioned. And the opinion as to cause of death is mentioned as cardio respiratory arrest due to acute MI. At page No. 83 viscera report is available ,stating that not revealing any poison in exhibit 1 and 2 (-that is material sent for testing. The report of Dr.Ronge, is at page 85-86 whose opinion is sought by the insurance company , his report is stating that, "fall of deceased was due to giddiness, deceased is not dashed by vehicle or any similar thing, PM report does not indicate any external or internal injuries. The PM does not reveal any accidental cause of death. It is saying that the death was due to respiratory arrest which is a natural cause of death and not the accidental".
In the case in hand, death of the deceased after falling from the bicycle can not be denied. Had the deceased not fallen and not sustained with giddiness and died, in those circumstances, there would be no question for conclusion as to natural death .However, in this case falling from the bicycle is happened prior to death ,therefore effect of falling requires consideration .The falling from bicycle is definitely a unforeseen incident. However, though no external or internal injuries found in PM , the opinion as to probable cause of death is given as 'death is cardio respiratory arrest due to acute MI. The final opinion, viscera is preserved'. However, it cannot be ignored that the deceased was carried to hospital after falling down by from bicycle may be out of shock after mishap. Therefore with this back ground, the opinion of P.M. notes needs to be considered. The death of any person is due to stoppage heart in common language and due to cardio 9 A/149/2018 respiratory attack in medical terminology needs to be understood. Therefore, the opinion of Dr.Ronge that, the death was due to respiratory arrest which is a natural cause of death and not the accident cannot be simply accepted to decide the claim. We have already perused the PM report ,it is not stating that it is a natural cause of death and not the accident. Perhaps the opinion of any neurologist could have sufficed the purpose. The Advocate of the complainant has submitted the citations.
1. 2013 AIR SCW 283 Mst.Param Pal Singh -Vs- M/s National Insurance co and others where in the Hon. High Court Delhi observed that "the death of driver after safely parking the truck is unexpected death was an accidental death. Stress and strain involved in nature of employment being material contributory factor accelerating his unexpected date".
2. S.C. and National Commission consumer law cases 2005-2008, Rita Devi and Rita Gupta -Vs- National Insurance Company Limited and others, where in the National Commission held that, "death caused by cold wave to be considered as accidental death for the purpose of insurance cover".
Relying upon these two judgements and our aforesaid discussions, we hold the death of deceased due to accident on the principal of res ipsa loquitor.
10 A/149/2018 11 The District Forum has allowed the consumer complaint. In the circumstances there requires no intervention in the order of District Forum and appeal deserves to be dismissed.
O R D E R
1. Appeal is dismissed.
2. No order as to cost.
Sd/- Sd/-
Mr.K.M.Lawande Smt.S.T.Barne,
Member Presiding Judicial Member
MBM