National Consumer Disputes Redressal
Lic Of India vs Ved Prakash Gupta & Anr. on 26 February, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2034 OF 2012 (Against the order dated 02.03.2012 in First Appeal No. 951 of 2007 of State Consumer Disputes Redressal Commission, U.P, Lucknow) LIC of India Branch Rampur Rampur, Uttar Pradesh ... Petitioner Versus 1. Ved Prakash Gupta S/o Late Ram Ratan 2. Smt. Sushila Gupta W/o Ved Prakash Gupta Both R/o Mohalla Chipian Purana Ganj Tahsil Sadar District Rampur, Uttar Pradesh Respondents BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER For the Petitioner Mr. Rajesh K. Gupta, Advocate For the Respondents Mr. Bharat Swaroop Sharma, Advocate PRONOUNCED ON 26.02.2013 O R D E R JUSTICE K.S. CHAUDHARI 1. This revision petition has been filed by the petitioner against the impugned order dated 02.03.2012 passed by learned State Commission in Appeal No. 951 of 2007, LIC of India Vs. Ved Prakash Gupta & Ors., by which, while allowing appeal of the petitioner, partly, order passed by the District Forum was upheld and modified to some extent. 2. Brief facts of the case are that complainants obtained 11 insurance policies Nos. 250179447, 250179448, 240033945, 240023425, 240026863, 240300371, 240211198, 240453907, 240454297, 240454298 and 240454299 for their son, Vineet Gupta. Vineet Gupta was injured in an accident on 26.08.2003 and his leg was fractured. Ultimately, he died on 27.08.2003. OP/Petitioner paid insurance amount covered under the aforesaid policies to the complainants but OP did not pay any amount to the complainants towards accidental benefits covered under the policies. Complainants alleging deficiency on the part of OP, filed complaint before the District Forum. OP resisted claim and submitted that Vineet Gupta died due to heart attack and not due to accident, as such, accidental benefits were not found payable and not paid and, therefore, prayed for dismissal of complaint. 3. Learned District Forum after hearing both the parties allowed the complaint and awarded Rs.14,50,000/- as accidental benefits, along with interest @ 8% p.a. from 27.08.2003 and Rs.20,000/- as damages and Rs.500/- as costs. 4. Petitioner filed appeal which was partly allowed and vide impugned order, it was held that complainants are entitled to get Rs.10,00,000/- as accidental benefits instead of Rs.14,50,000/- awarded by District Forum. Further, interest was allowed at the rate of 15% p.a. instead of 8% p.a. as awarded by the District Forum and further awarded Rs.50,000/- as damages instead of Rs.20,000/- as awarded by District Forum, along with Rs.15,000/- as expenses of the appeal against which this revision petition has been filed. 5. Heard learned counsel for the parties at admission stage and perused the record. 6. Learned counsel for the petitioner submitted that learned State Commission has committed error in upholding the order of the District Forum, allowing Rs.10,00,000/- as accidental benefits and further submitted that even without appeal of the complainants, learned State Commission has committed error in enhancing rate of interest and compensation, hence revision petition be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned counsel for the respondents submitted that order passed by the learned State Commission is in accordance with law, hence revision petition be dismissed. 7. Perusal of the record reveals that against 11 insurance policies, District Forum allowed Rs.14,50,000/- as accidental benefits, which could not have been allowed and learned State Commission rightly restricted it to Rs.10,00,000/-. 8. No appeal was filed by the complainants against the order of the District Forum, even then, learned State Commission enhanced rate of interest from 8% to 15% and compensation from Rs.20,000/- to Rs.50,000/-, which could not have been done without any appeal on behalf of the complainants. In such circumstances, order enhancing interest and compensation amount by learned State Commission deserves to be set aside. 9. Learned counsel for the petitioner submitted that for taking accidental benefits, the complainants have made false averments in the complaint regarding accident on 26.08.2003 whereas accident occurred on 11.07.2003 and Vineet Gupta sustained fracture of his leg. It appears that to claim accidental benefits as per the terms and conditions of the insurance policies, the complainants falsely mentioned in the complaint the date of accident as 26.08.2003 instead of 11.07.2003. Learned counsel for respondent admitted that deceased met with an accident on 11.07.2003 and by mistake, date of accident has been shown as 26.08.2003 in the complaint. Written statement submitted by petitioner further reveals that Smt.Surabhi Gupta, wife of deceased policy holder informed petitioners Branch Office, Rampur, on 27.08.2003 that deceased fell from scooter and sustained injuries and died during his treatment. Thus it becomes clear that to get accidental benefits, the date of accident was shown as 26.08.2003 instead of 11.07.2003, the actual date of accident. 10. Now, the question arises is, Whether the complainants are entitled to get accidental benefits as per terms and conditions of the policies?. As per Condition No.10 of the policy, it becomes clear that accidental benefits were available only if death is caused within 90 days, on account of sustaining accidental injuries. 11. Learned counsel for the petitioner submitted that deceased died due to acute myocardial infarction or acute poising or so on and he did not die due to pulmonary infarction resulted by embolism. On the other hand, learned counsel for the respondent submitted that deceased died due to fracture sustained by him in accident. 12. Complainant was required to prove that there was proximity between the fracture of leg and death which occurred after 47 days of fracture in accident. Admittedly, Post-Mortem was not conducted and in the absence of post-mortem report, real cause of death cannot be ascertained. In such circumstances, adverse inference is to be drawn against complainants. Apparently, on account of fracture of leg, insured could not have died after 47 days. 13. Complainants have not filed record of medical treatment, prescriptions, etc., of the treating doctor. Complainants have filed only affidavit of Dr.Vishesh Kumar in support of their contentions. As per his affidavit, he examined the deceased on 26.08.2003 in an emergency. He further submitted that deceased was confined to bed due to bony fracture lateral mallecocus (RT) side, having features of pulmonary inorction. He further submitted that disease could be caused due to accidental fracture. He further submitted that he prescribed necessary medicines immediately. He further submitted that due to accidental injuries embolus ones lodged in a vessel it obstructs the blood supply of the area and results in the ichaemia of the part, known as ingarction. He further submitted that the deceased had a trauma plastered limb leading to imobolisation of the part, possible etiologies include fat embolism after a trauma and long bone fracture with it. On the other hand, OP filed affidavit of Dr.K.C.Lohani, before the District Forum. Dr.K.C. Lohani submitted in Paras 11 & 12 of his affidavit, as under:- 11.After going through the papers and with the medical information about pulmonary embolism I state that pulmonary embolism is usually a rare complication of large bone fractures involving matrix of the bone, long plasters, prolonged bed rest, prolong immobilisation of limbs and old age, whereas in the instant case fracture was of small bone, no involvement of matrix (General Part) patient was advised regular movement of limbs and fingers, was of young age and healthy. Hence, it is not the case of pulmonary embolism. 12. That I studied all the papers including the Doctors opinion who attended the deceased and observed him, along with prescription and diagnosis and also discussed the matter with other senior colleagues including Dr.D.Pant, D.M.(Cardiologist)&Dr.V.BhattM.S.(Orthopeadic) Now I am of the opinion that there is no definite evidence of pulmonary embolism. There is no radiological or electro cartographic evidence of pulmonary embolism submitted by the claimant or the attending physician and late Mr.Vineet Gupta may have died of acute myocardial infarction or acute poising or so on. As a result of which I am now of confident opinion that late Sri Vineet Kumar did not die due to pulmonary infarction resulted by embolism. He might have died due to myocardial infarction etc. The ground of my opinion is detailed in my letter dated 03.07.2005, written to Manager (Claims) of LIC of India, Divisional Office, Haldwani, which is annexed herewith as Annexure No.11 of this Affidavit. 14. Dr. Vishesh Kumar examined the deceased only on 26.08.2003 and as per his affidavit, he prescribed certain medicines but his prescription has not been filed by the complainants and in such circumstances, no reliance can be placed on affidavit of Dr.Vishesh Kumar. He submitted in his affidavit that there was fracture of long bone, whereas, Dr.K.C. Lohani submitted in his affidavit that after going through the papers, he found fracture of small bone. In such circumstances, it becomes doubtful whether Dr.Vishesh Kumar examined the deceased on 26.08.2003 or not. Dr. Vishesh Kumar also stated in his affidavit that features of pulmonary inorction could be caused due to accidental fracture, meaning thereby he was not certain about the cause of pulmonary inorction. On the other hand, Dr.K.C.Lohani opined that deceased did not die due to pulmonary infarction resulted by embolism, but might have died, due to myocardial infarction etc. 15. In the absence of post-mortem report, prescription of Dr.Vishesh Kumar and previous treatment papers from 11.07.2013 to 26.08.2013, it cannot be said that insured Vineet Kumar died due to injuries sustained in accident, rather, it appears that he died due to myocardial infarction and in such circumstances, petitioner has not committed any deficiency in repudiating claim for accidental benefits in the issued insurance policies. Learned District Forum has committed error in allowing the accidental benefits to the tune of Rs.14,50,000/- and learned State Commission has committed error in confirming the accidental benefits to the tune of Rs.10,00,000/- and complaint is liable to be dismissed. 16. Perusal of record further reveals that only in four policies, bearing Nos.250179447, 250179448, 240033945 and 240023425, the complainants were the nominees, whereas, in five policies, bearing Nos. 240026863, 240300371, 240211198, 240453907 and 240454297, deceaseds wife Smt.Surabhi Gupta was the nominee and in two policies, bearing Nos. 24045298 and 240454299, the deceaseds two daughters, namely, Kumari Namita and Kumari Smita, respectively, were the nominees. Deceaseds wife Smt.Surabhi Gupta appears to have died before filing the complaint. The complaint regarding remaining seven policies in which nominees were Smt.Surabhi Gupta and two daughters of deceased, namely, Kumari Namita and Kumari Smita, could have been filed only by nominees and it is strange that complaint was filed by the complainants and on this count alone, complaint should have been dismissed by the District Forum regarding accidental benefits in aforesaid policies. 17. Consequently, the revision petition filed by the petitioner is allowed and impugned order dated 02.03.2012 passed by learned State Commission in Appeal No.951/2007, LIC of India Vs. Ved Prakash and order of District Forum, dated 29.03.2007 in Complaint Case No.164 of 2005, allowing the complaint, are set aside and complaint is dismissed, without any order as to costs. ..
(K. S. CHAUDHARI J.) PRESIDING MEMBER dd/5