State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Smt. Lalita Devi on 6 August, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 125 / 2007
National Insurance Company Limited
through its Divisional Office
Hotel Inderlok, 29 Rajpur Road
Dehradun
......Appellant / Opposite Party
Versus
Smt. Lalita Devi W/o late Sh. Aitram
R/o Village Patti Dugtu
Tehsil Dharchula, District Pitthoragarh
......Respondent / Complainant
Sh. M.K. Kohli, Learned Counsel for the Appellant
Sh. S.C. Gupta, Learned Counsel for Respondent
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Smt. Kusum Lata Sharma, Member
Dated: 06.08.2009
ORDER
(Per: C.C. Pant, Member):
This is insurer's appeal against the order dated 02.03.2007 passed by the District Forum, Pitthoragarh, allowing the consumer complaint No. 28 of 2006, so as to direct the insurer - appellant to pay insured amount of Rs. 1,00,000/- to the complainant together with Rs. 10,000/- as compensation for mental agony and financial loss and Rs. 5,000/- as litigation expenses within one month from the date of the order, failing which, the insured amount of Rs. 1,00,000/- was directed to carry interest @9% p.a. from the date of filing of the complaint till payment.
2. The facts of the case, in brief, are that the complainant's husband Sh. Aitram was a BPL (Below Poverty Line) card holder and 2 was also a member of "Panchachuli Swayam Sahayata Samooh" or "Panchachuli Self Help Group" under "Swaran Jayanti Gram Swarojgar Yojna". He used to do handicraft work. On 04.02.2005, when he had gone to the river for washing wool, due to the sudden snowfall, he was trapped in severe cold and died on the same day. The wife of the deceased Smt. Lalita Devi - complainant claimed the insurance amount from the opposite party, which had insured all the members of the Panchachuli Swayam Sahayata Samooh holding BPL cards under Personal Accident Insurance Policy. Each member of the Samooh was insured for sum of Rs. 1,00,000/- in case of accidental death. When the insurance company did not settle the claim, the complainant filed a consumer complaint before the District Forum, Pitthoragarh, which was allowed by the District Forum vide its order dated 02.03.2007 in the above terms. Aggrieved by the said order, the insurance company has filed this appeal.
3. We have heard the learned counsel for the parties and perused the material placed on record in the light of the legal aspects of the case.
4. The learned counsel for the appellant argued that the death of the insured Sh. Aitram was not an accidental one, but it was a natural death. He pointed out to Paper No. 82, the claim form, wherein the cause of death has been mentioned as illness. The learned counsel also pointed out to Paper No. 93, the Panchnama, wherein also, the cause of death is mentioned as sudden illness. Thus, the main argument of the learned counsel was that the insured had died due to illness and not due to any accident. Therefore, the insurance company is not liable to pay any amount, but the District Forum did not consider this fact and, therefore, the order impugned is liable to be set aside.
35. In reply, the learned counsel for the complainant - respondent pointed out to Paper Nos. 53, 55, 70 and 92. Paper No. 53 is a certificate dated 10.02.2005 issued by the Pradhan, Gram Panchayat, Dugtu, certifying therein that heavy snowfall had occurred in Tehsil Dharchula, touching the banks of the river "Kali" during January- February, 2005. Paper No. 55 is the Panchnama dated 04.02.2005 signed by the doctor of the Community Health Centre, Dharchula and countersigned by Block Development Officer, Dharchula. It states that Sh. Aitram died on 04.02.2005 due to sudden illness. Paper No. 70 is the affidavit of the complainant, in which she has stated that Sh. Aitram, her husband, had gone to the river for washing the wool, where he died due to severe cold caused by heavy and sudden snowfall. Paper No. 92 is the certificate dated 15.02.2005 issued by the Pradhan, Gram Panchayat, Baun and Member, Zila Panchayat, Pitthoragarh, wherein it is certified that there was heavy snowfall in Tehsil Dharchula during January-February, 2005 and Sh. Aitram Dugtal had suddenly died due to severe cold caused by heavy snowfall. The learned counsel's plea was that the death of the insured was sudden and the illness, as mentioned in the claim form or in the Panchnama, is attributed with sudden death. The complaint read with the affidavit of Sh. Aitram's wife Smt. Lalita Devi, clearly shows that the death of the insured occurred when he had gone to wash the wool in the river and because of severe cold due to heavy snowfall. If someone catches a severe cold, which becomes fatal, then the local people will certainly say that the death was due to sudden illness. Learned counsel submitted that the District Forum has appreciated the facts of the case in right perspective and, therefore, the order passed by the District Forum should be upheld.
46. We considered the submissions made by the learned counsel for the parties. The only question to be decided in this case is whether a death due to severe cold, can be termed as a death due to sudden illness and whether such a death is accidental.
7. This Commission, in its order dated 29.05.2009 in First Appeal No. 03 of 2008; Sh. Bhagyan Das Vs. State Bank of India and others, has expressed its view in respect of accidental death. This Commission, while giving its view, relied upon the Hon'ble Apex Court's decision in the case of Shakuntala; IV (2006) ACC 769 (SC) = 2007 ACJ 1 (SC). Accordingly, 'accident' means an untoward mishap, which is not expected or designed. 'Injury' means physiological injury. In Fenton V.J. Thorley Company Limited; 1903 AC 443, it was observed that the expression 'accident' is used in popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event, which is not expected or designed. Applying the said mandate of law, we have to see whether the District Forum's approach is just or not.
8. What we feel is that the appellant - insurance company has confined itself to the word "illness" or "Beemari" as mentioned in the claim form and Panchnama, but the appellant is not considering the fact that the illness is attributed with the word "sudden". The cause of sudden illness has been explained by the complainant in her complaint and affidavit. The appellant has not submitted any evidence with regard to the fact that there was no snowfall on 04.02.2005 and the insured had not gone to the river or any statement of the local person that the insured had died due to some other disease, from which he was already suffering. The appellant should also consider the facts of the case on social and humanitarian grounds. The complainant, Gram Pradhan and other members live in a remote village "Dugtu" in the 5 remote hills and are not aware of technicalities. They are either illiterate or not well literate and are village simpletons. When Sh. Aitram caught severe cold due to sudden snowfall and died, the local people, most honestly termed it a "sudden illness". If someone dies due to severe cold wave or heat stroke / sun stroke, it may be termed as "sudden illness". Wherever in the documents, the word "Beemari" or "illness" has been used, it has been attributed with "sudden". Therefore, while answering to the first part of the question, we are of the well considered view that a death due to severe cold, can be termed as a death due to sudden illness. Now the next part of the question, which is more important, is whether such a death can be said as accidental. Our answer is affirmative, if we apply the mandate of law as discussed above. In both the cases, whether it be a death due to cold wave or due to a sun stroke, there is an element of unlooked for mishap or untoward event. Sh. Aitram was hale and hearty because he was doing all the work and even went to the river. He had not expected that due to sudden snowfall, cold would increase severely and would become fatal to his life. Therefore, applying the aforesaid mandate of law, we are of the view that the deaths due to severe cold wave or due to sun stroke, are also accidental in nature. For these reasons, we find that this appeal is devoid of merit. However, we do not find any justifiable reason for awarding Rs. 10,000/- for the mental agony and financial loss. Further, the cost of litigation and rate of interest has also been awarded on the higher side. The cost of litigation should be Rs. 2,000/- and interest should be awarded @7% p.a. To this extent, the order impugned is to be modified.
9. For the reasons aforesaid, this appeal succeed partly and is to be allowed accordingly.
610. Appeal is partly allowed. Order impugned dated 02.03.2007 of the District Forum is modified and the complainant is held entitled to insured sum of Rs. 1,00,000/- together with interest @7% p.a. from the date of filing of the complaint till payment and Rs. 2,000/- as litigation expenses. Costs of the appeal made easy.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE IRSHAD HUSSAIN) K