State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Amarjit Singh Kathuria on 3 July, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 16 of 2018
Date of Institution : 10.01.2018
Date of Reserve : 13.06.2018
Date of Decision : 03.07.2018
1. National Insurance Co. Ltd., Registered & Head Office 3,
Middleton Street, Praffula Chandra Sen Sarani, Kolkata (West
Bengal) 700071 through its Chairman cum Managing Director.
2. National Insurance Co. Ltd. C/o M/s G.S. Magestic
Developer Ltd., Near Homeopathic College, Canal Road, South
City, Ludhiana through its Chief Regional Manager.
3. National Insurance Co. Ltd., Divisional Office-II, Panesar
Complex, 20 G.T. Road, Jalandhar 144 001 through its Sr.
Divisional Manager.
Now all through its Authorized Signatory Puja Dhawan, Assistant
Manager, Regional Office SCO No. 332-334, Sector 34-A,
Chandigarh.
....Appellants/Ops
Versus
Amarjit Singh Kathuria son of Late S. Pritam Singh, resident of
House No. 305, Guru Teg Bahadur Nagar, Jalandhar.
....Respondent
First Appeal against the order dated
13.09.2017 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
First Appeal No. 16 of 2018 2
Present:-
For the appellants : Sh. J.P. Nahar, Advocate
For the respondent : Sh. Puneet Sharma, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The appellants/opposite parties (hereinafter referred as Ops) have filed the present appeal against the order dated 13.9.2017 passed in consumer complaint No. 199 dated 3.5.2016 by the District Consumer Disputes Redressal Forum, Jalandhar (hereinafter referred as the District Forum) vide which the complaint filed by the complainant was partly accepted and Ops were directed to pay personal accident claim of Rs. 10 Lacs and thereon cumulative bonus of Rs. 5 Lacs, total Rs. 15 Lacs to the complainant alongwith interest @ 9% p.a. from the date of filing the complaint till realization. Ops were further directed to pay Rs. 25,000/- as compensation and Rs. 5,000/- as litigation expenses. Ops were also directed to comply with the order within a period of one month.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the Ops on the averments that Pritam Pal father of the complainant had taken policy from National Insurance Company Ltd. and paid regularly insurance premiums. He was insured vide Personal Accident Insurance (Individual) Policy No. 404300/21/48/81/0000367 for a sum of Rs. 10 Lacs as sum insured plus Rs. 5 Lacs as cumulative bonus, totaling Rs. 15 Lacs First Appeal No. 16 of 2018 3 with death benefit under the administrative control of Op No. 3. Due to misfortune and un-luck father of the complainant Pritam Singh (hereinafter referred as DLA) while descending the stairs near the main door of his house, slipped on 20.3.2015 and sustained serious head injuries due to fall in the stairs. He was rushed to Doaba Hospital, Lajpat Nagar, Jalandhar and he remained there upto 27.3.2015 and after that he was shifted to Global Hospital, Jalandhar where he remained admitted upto 31.3.2015, when he was discharged in an unconscious condition without any improvement and he succumbed to head injuries on 3.4.2015. The complainant and family of the DLA lodged claim with Ops for reimbursement of medical expenses incurred upon the treatment of the deceased as insurance claim No. 5851516023387. The Ops being satisfied with the accidental death of the DLA paid medical expenses to the complainant to the tune of Rs. 1,76,150/-. The complainant had also lodged insurance claim under Personal Accidental Insurance (Individual) Policy No. 404300/21/48/81/0000367. Alongwith that death certificate and other required documents were submitted to Ops. Op No. 3 in order to verify the facts about the accidental death, entrusted its investigation to Authorised Investigators M/s S.A. Investigating & Consulting Agency, Pathankot, who after thorough investigation submitted their report vide their letter No. SA/CORR/2015-2016/13 dated 4.5.2015 to the Ops. The investigator in its report confirmed that DLA had died due to serious head injuries suffered by him in accidental fall while descending from the stairs of his house. On First Appeal No. 16 of 2018 4 the basis of the said report, Ops paid a sum of Rs. 1,76,150/- as medical expenses for the said treatment by NEFT/Cheque No. SAA148466424 dated 24.7.2015. With regard to claim of the complainant for Rs. 10 Lacs being sum assured, for the policy cumulative bonus of Rs. 5 Lacs, totaling Rs. 15 Lacs, the Ops started to fish out the grounds for declining the same. The Ops did not submit the report of the investigator to the complainant with malafide intention and ultimately declined insurance claim of the complainant vide letter dated 18.1.2016 on the opinion of the TPA that DLA died due to prolonged illness and not due to accident. The Ops had asked for to submit the MRI report but it was not collected by the complainant from the Hospital Authorities. Alleging deficiency in service on the part of Ops, the complaint was filed by the complainant seeking directions against the Ops to pay sum insured of Rs. 10 Lacs plus Rs. 5 Lacs as cumulative bonus, totaling Rs. 15 Lacs, compensation of Rs. 50,000/- and litigation expenses of Rs. 10,000/-.
3. Upon notice, Ops appeared and filed its reply taking preliminary objections that material document i.e. MRI report was not supplied and the MRI did not show any fresh infarct (clotting in the brain). No x-ray was done to find out if there was any fracture in any part of the body by fall. In fact the DLA died due to gangrene and other prolonged illness and not due to the accident; the controversy required detailed appreciation of the evidence, which cannot be done before this Forum in summary procedure, therefore, the matter be referred to the Civil Court; the complainant First Appeal No. 16 of 2018 5 know the value of the post mortem but post mortem was not conducted. On merits, it was denied that the insured while descending the stairs near the main door of the house had fallen on 20.3.2015 and sustained the head injuries. It was also denied that he became unconscious and had immediately rushed to Doaba Hospital, Jalandhar for treatment. In fact the deceased was old patient of gangrene of foot and the CVA (Cerebro Vascular Accident) Stroke, Diabetes Mallitus, Hypertension, DB Nephropathy (kidney affected by diabetes). It was denied that the DLA died due to head injury on account of fall from the stairs. In fact he died due to prolonged illness. With regard to issuance of the insurance policy, it is a matter of record. On receipt of the claim from the complainant, the Investigator was appointed, however, the investigation of the Investigator is always only factual. The investigator brought on the record that DLA was 75 years of age and old patient of DM/HT/CVA/Gangrene, for which he remained admitted in February, 2015 at DMC Hospital, Jalandhar from 7.2.2015 to 12.2.2015 and then he was admitted in Doaba Hospital, Jalandhar from 20.3.2015 to 27.3.2015 and then with Global Hospital, Jalandhar from 27.3.2015 to 31.3.2015 and died on 3.4.2015. Investigation of the Investigator are inquisitorial and final call is always taken by the Company. No doubt that the mediclaim of the complainant was given but parameters of the personal accident policy are different. It was denied that Ops started to fish out the grounds for declining the claim. No doubt that post mortem may not be obligatory but the complainant was to First Appeal No. 16 of 2018 6 make the claim against the insurance company and in case post mortem would have been there then post mortem would have closed all controversies. So far as MRI is concerned, it was not asked for submission by the Ops at the time of passing the mediclaim insurance but when the 2nd claim came up under personal accident policy before the Ops of the DLA falling from the stairs and sustained head injury, it became relevant for the Ops to call for the MRI film and report to examine but it was not submitted by the complainant, which shows that he tried to hide something. DLA was an old man affected with gangrene of foot, Hypertension, DB Nephropathy and chest infection. It was denied that claim was rejected illegally and in arbitrary manner. There is no deficiency in service on the part of Ops. Complaint is without merit, it be dismissed.
4. Before the District Forum, the parties were allowed to lead their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C1 and documents Exs. C2 to C41. On the other hand, Ops had tendered into evidence two affidavits Exs. O1 and O2 and documents Ex. O3 to O5.
6. After going through the allegations in the complaint, written version filed by the Ops, evidence and documents brought on the record, the complaint was partly allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appellants/Ops have filed the present appeal. First Appeal No. 16 of 2018 7
8. We have heard the learned counsel for the appellants and learned counsel for the respondent and have carefully gone through the record of the case.
9. It was argued by the counsel for the Ops that order passed by the District Forum based upon surmises and conjectures. In para No. 8 of the order, it has been observed that there may be internal injuries but in case there was any injury then no X-ray was conducted. DLA was already in critical condition due to age and chronic diseases such as CVA (Cerebro Vascular Accident) Stroke. No CT Scan/MRI was done/produced. The District Forum has wrongly relied upon the investigation report and discharge summary of Doaba Hospital and Global Hospital. The report of the MRI, brain is there but did not show any fresh infarct (clotting in the brain). In these circumstances, the complainant has failed to prove on the record accidental death. It was not an accidental death, therefore, the claim was rightly repudiated by the Ops, which was wrongly allowed by the District Forum, therefore, the order passed by the District Forum is liable to be set-aside.
10. The Personal Accident Insurance (Individual) Policy has been placed on the record as Ex. C-3 and its terms and conditions are Ex. C-4 and the relevant clause with regard to accidental death is as under:-
"Now this Policy witnesseth that subject to the terms exclusions definitions and conditions contained herein or endorsed or otherwise expressed hereon the Company will pay to the Insured as hereinafter First Appeal No. 16 of 2018 8 mentioned if at any time during the currency of this Policy the insured shall sustain any bodily injury resulting solely and directly from accident caused by external violent and visible means then the Company shall pay to the insured or his legal personal representative(s) as the case may be the sum or sums hereinafter set forth that is to say-"
According to the above clause, it is required to be proved that the DLA/insured sustained injuries or death directly from accident caused by external violent and visible means, therefore, we are to check it whether the complainant has been able to prove the death caused by accident i.e. by external violent and visible means, which the complainant failed to prove, therefore, the claim is not payable. However, the counsel for the respondent/complainant has stated that after receiving the claim of the complainant, the Ops had appointed M/s S.A. Investigating & Consulting Agency, Pathankot as Investigator and his report is Ex. C-7 and in the column of cause of loss, it has been mentioned as under:-
"As per the statement of the claimant Mr. Amarjit Singh; his father Mr. Pritam Singh was a patient of Diabetes and for his routine check up they were to go to the doctor and his father was decending the stairs near the main door of the house on 20.3.2015, at about 10:30 hours then his walking stick slipped due to which his father lost control and balance due to which he slipped in the stairs and sustained head injury. Mr. First Appeal No. 16 of 2018 9 Amarjit Singh then put his father in the car and rushed to the hospital for treatment. On 31.03.2015, his father succumbed to his injuries causing his death; thus, causing the accidental death of the insured."
He further made investigations from the people near the house, at the spot, Doaba Hospital and with Global Hospital, which are as under:-
2. With the witness We have visited the following quarters for the witness to the claim.
a) People near the We have contacted the people at various house locations at the residence of the insured and the people confirmed to us that the above accident (in which the insured person had died due to the above mentioned cause of loss) had genuinely taken place on the reported date of loss as reported by the insured to the insurers. However, with the fear of legal involvement they did not pen down their statement.
b) At the spot We had contacted the people at various locations at the spot of accident and the people confirmed to us that the above accident (in which the insured person had died due to the above mentioned cause of loss) had genuinely taken place on the reported date of loss as reported by the insured to the insurers. However, with the fear of legal involvement they did not pen down their statement.
3. Doaba Hospital We have visited Doaba Hospital, Jalandhar and met the hospital authorities who called for the hospital records and then from the hospital records it was confirmed that the insured Mr. Pritam Singh was brought to this hospital with injuries suffered due to fall in the stairs of the residence of the insured and the First Appeal No. 16 of 2018 10 patient was unconscious at the time of admission. The patient remained admitted from 20.3.2015 to 27.3.2015 but due to no significant improvement the patient was shifted to Global Hospital, Jalandhar.
4. With Global Hospital We had visited Global Hospital, Jalandhar where we met the hospital authorities and after they called for the hospital records it was confirmed that the insured / patient was brought to this hospital in unconscious state due to head injury with the history fall in the stairs at home. The patient was admitted on 27.3.2015 after noon at 1515 hours and finally discharged on 31.3.2015 at 2000 hours because there was no significant improvement in his condition.
and in his opinion, he has observed as follows:-
"In our opinion while taking into consideration the findings of the investigation it has come to light that the above accident had taken place on the reported date of loss in which the insured person had suffered serious head injuries on 20 March 2015 at # 305 Guru Tegh Bahadur Nagar, Jalandhar and he died during his treatment. The police has not been informed. The deceased was 75 years of age. The death certificate is enclosed. The post mortem report of the deceased was not conducted. The nomination may please be cross checked with the u/w docket and in the absence of nomination the legal heir certificate / succession certificate may please be obtained. The death of the insured is purely accidental in nature. The loss has taken place within the currency of the insurance policy. The underwriters may proceed further in the case on the merits and findings of the investigation."
11. The counsel for the complainant has further referred to the Discharge Summary of Doaba Hospital in which diagnosis are as under:-
Diagnosis:- Head Injury → concession to brain → Unconscious. First Appeal No. 16 of 2018 11 Diabetes Mellitus → Diab. foot Gangrene on treatment Db Nephrepathy, HT Past CVA - twice - Infarct and in the Course in Hospital, it was observed as under:-
"Course in Hospital : Pt was admitted in the hospital with unconsciousness and oral sections with B/L Chest Infection (?
Aspiration). Pt. managed ċ I.V. antibiotics & Oxygen. MRI Brain was done which didn't show any fresh infract. Pt. improved in sensorium gradually but his chest infection didn't improve. Pt was left to lipher centre for further management."
In the Global Hospital, the diagnosis was as under:-
"Diagnosis:- Head Injury - Unconsciousness DM Type II Diabetic Nephropathy Past CVA In case we go through all these documents, these are referring to the Head injury. The report of the Investigator also corroborates that the DLA received injury on 20.3.2015 when he slipped from the stairs and received serious head injury and he was immediately taken to the Hospital for treatment but he could not improve and succumbed to the injuries on 3.4.2015. The injury has been corroborated from the people near the house, at the spot and in the record of the Doaba Hospital and Global Hospital. The investigator was appointed at the instance of the Ops. In case there was anything bad in the report of the Investigator, there is no bar for them to appoint any another investigator but no other investigator was appointed. On the basis of evidence of the First Appeal No. 16 of 2018 12 hospital and the investigator, the DLA had received the head injury. Although he may be suffering from prolonged disease but this head injury advanced his death. No doubt that post mortem report is not there but it is not necessary in case other documents are sufficient to conclude the manner in which the death of the DLA had occurred. Similarly in case MRI report is not there. Actually, MRI was conducted but its report is not there but it is not the only document on the basis of which the cause of death can be determined. Once we have the evidence of both the hospitals, who have referred about the head injury and it has also appeared in the report of the Investigator that the DLA suffered serious head injury on 20.3.2015 and he has referred that the death of the insured is purely accidental in nature. The counsel for the appellants/Ops has not been able to contradict its own investigator's report. To corroborate this preposition, the counsel for the respondent/complainant has relied upon some judgments i.e. 2015 (2) CLT 504 "Geeta Devi versus United India Insurance Co. Ltd.". In this case, the claim was lodged due to death by accidental fall. The claim was repudiated on the ground that the death occurred due to cardiac arrest. As per hospital report, no chest pain. The onus to prove that the death of the insured is a natural one and not accidental death shifts upon the Ops. Similarly, in the present case once the claim of the complainant is that the death of the DLA suffered from the head injury, which has been corroborated by the report of the Investigator, in case it is not so then onus shifted upon the Ops to First Appeal No. 16 of 2018 13 prove on the record that death is not accidental but due to prolonged disease but no such evidence has come on the record from the side of the Ops. He has referred to another judgment III (2006) CPJ 164 "Shahnaz versus New India Assurance Co.
Ltd." of Karnataka State Consumer Disputes Redressal Commission, Bangalore. In that case, there was injury to the insured due to dog bite and ultimate death of the insured due to acute cardio respiratory arrest secondary to rabies with PVS in left leg. Dog bite amounts to accident by violent and visible means. He has referred to another judgment II (2002) CPJ 14 "Smt. Gurdev Kaur versus Branch Manager, United India Insurance Co. Ltd." of Union Territory Consumer Disputes Redressal Commission, Chandigarh. In that case, the insured fall from the roof top but investigator reported death due to heart attack. However, the insured died due to heart attack not proved. It was held that repudiation is not justified. In the present case, the investigator had given the report death due to head injury and Ops has not been able to prove on the record that the death was due to prolonged illness and not due to head injury. A reference has been made to another judgment 2010 (2) CPJ 272 "New India Assurance Company Ltd. versus Kiran Agnihotri" of this State Commission. In that case, insured was suffering from Neurological problem. He died not because of his illness but fall was the proximate cause of death of life assured. It was held that repudiation is not justified. This judgment again corroborate the version of the complainant that death due to fall is accidental by First Appeal No. 16 of 2018 14 way of external violent and visible means. It is again reiterated that once the complainant has placed some evidence on the record that it was an accidental death then immediately onus shifts upon the Ops to prove on the record that it is not accidental death but it was on account of prolonged illness. For the sake of repudiation, it is again mentioned that no such evidence has been placed on the record by the Ops, therefore, the claim was wrongly repudiated, it has been rightly allowed by the District Forum. We do not see any illegality in the order passed by the District Forum. The findings recorded by the District Forum are affirmed.
12. Sequel to the above, we do not see any merit in the appeal and the same is hereby dismissed with no order as to costs.
13. The appellants had deposited an amount of Rs. 25,000/- with this Commission in the appeal. This amount along with interest accrued thereon, if any, shall be remitted by the registry to the concerned District Forum, after the expiry of 90 days, from the despatch of the certified copy of the order to the parties; subject to stay, if any, by the higher Fora/Court; for the release of the above amount and the District Forum may pass the appropriate order in this regard.
14. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN)
PRESIDING JUDICIAL MEMBER
July 03, 2018. (RAJINDER KUMAR GOYAL)
as MEMBER
First Appeal No. 16 of 2018 15