State Consumer Disputes Redressal Commission
Balbir Kaur vs Reliance General Insurance Company ... on 31 May, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.393 of 2016
Date of institution : 18.05.2016
Date of decision : 31.05.2017
Balbir Kaur w/o Balbir Chand @ Balbir, resident of Village Saila
Khurd, Tehsil Garhshankar, District Hoshiarpur.
....Appellant/Complainant
Versus
1. Reliance General Insurance Company Ltd., Registered
Office, Reliance Center, 19 Walchand Hirachand Marg,
Ballard Estate, Mumbai-400001, through its Manager.
2. Reliance General Insurance Company Ltd., Flat No.301,
IIIrd Floor, Krishna Block, Krishe Sapphire, Madhapur,
Hyderabad-500081, through its Manager.
3. Reliance General Insurance Company Ltd. Chandigarh
Road, Hoshiarpur, through its Manager.
....Respondents/Opposite Parties
First Appeal against the order dated
26.04.2016 of the District Consumer
Disputes Redressal Forum, Hoshiarpur.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member.
Present:-
For the appellant : Sh. R.K. Chauhan, Advocate For the respondents : Sh. Satpal Dhamija, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The instant appeal has been filed by the appellant/complainant against the order dated 26.04.2016 passed by District Consumer Disputes Redressal Forum, Hoshiarpur (in First Appeal No.393 of 2016 2 short, "the District Forum"), whereby the complaint filed by her, under Section 12 of the Consumer Protection Act, 1986, against the respondents/opposite parties was dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the complaint
3. Brief facts, as averred in the complaint, are that the son of the complainant namely Sh. Dharm Dev, during his lifetime, got himself insured with the opposite parties under the policy "Pravasi Bhartiya Bima Yojna" bearing No.2002542815123962, having insurance cover of ₹10,00,000/-, in case of disability or death of insured, which valid from 05.06.2014 to 04.06.2016. Sh. Dharm Dev was working as an employee of 'Green Line Health and Electrical Installations LLC Abu Dhabi, U.A.E'. On 27.07.2014, he died on the way to hospital, after accidental fall from the height while working at site under the employment of said company. Deceased Dharm Dev (in short, "DLA"), who was unmarried and issueless, died leaving behind his mother as his sole legal heir. The complainant lodged the claim with the opposite parties on account of the accidental death of her son, which was wrongly repudiated by them; as a result of which the complainant suffered mental agony and harassment. Even the issuance of legal notice dated 14.10.2015, did not yield any fruit. Accordingly, the First Appeal No.393 of 2016 3 complainant approached the District Forum, seeking following directions to them:
i) to pay claim amount i.e. ₹10,00,000/- under the insurance cover, alongwith interest @ 12% p.a. from the date of death of the deceased till realization;
ii) to pay damages for causing physical, mental and financial hardship suffered by the complainant; and
iii) to pay litigation charges.
Defence of the Opposite Parties
4. In pursuance to the notice, the opposite parties appeared before the District Forum and filed reply to the complaint, raising preliminary objections that the complaint is not maintainable. The District Forum has got no jurisdiction to try the complaint. The complainant is estopped by her act and conduct from filing the same. The complainant has concealed the real facts and she is not entitled to get any claim. The complaint is bad for non-joinder of necessary parties. The claim of the complainant was rightly repudiated, vide letter dated 29.07.2015, on the ground that the same did not fall under the terms and conditions of the personal accident policy. In fact, the deceased died on account of "Cardiac Arrest", which, in the common language, is known as "Heart Attack". The definition of term 'accident' under the terms and conditions of the policy is reproduced as under: First Appeal No.393 of 2016 4
"Accident:- An accident is a sudden, unforeseen and involuntary event caused by external visible and violent means".
The scope of the coverage under the policy is as follows:
"Section 1: Personal Accident Benefits - If during the policy period, the insured person shall sustain any injury resulting from an accident, then the Company shall pay to the insured or his legal representative(s), as the case may be, the sum or sums hereinafter set forth, that is to say: a) If such Injury shall within twelve calendar months of its occurrence be the sole and direct cause of the death of the Insured Person, the Sum Insured of Rs. 10 lacs."
It was further pleaded that the Death Notification issued by the Health Authority of Abu Dhabi clearly mentions that the deceased died on account of "Cardiac Arrest". This shows that he did not die accidental death. On merits, issuance of the policy, in question, to the son of the complainant, death of the insured and repudiation of the claim are admitted. Similar other pleas, as taken in preliminary objections, were reiterated and denying all other allegations of the complainant, it was prayed that the complaint be dismissed. Finding of the District Forum
5. Both the sides produced evidence in support of their respective averments before the District Forum, which after going First Appeal No.393 of 2016 5 through the same and hearing learned counsel on their behalf, dismissed the complaint, vide impugned order. Hence, this appeal. Contentions of the Parties
6. We have heard learned counsel for the parties and have carefully gone through the records of the case.
7. Learned counsel for the complainant vehemently contended that the impugned order is illegal, erroneous and is based on surmises and conjectures. It discarded the affidavit Ex.C-2 of Dharamveer, who was eye-witness of death of the DLA, who specifically deposed that the DLA died on the way to hospital, after he accidentally fell from the height while working under the employment of 'Green Line Health and Electrical Installations LLC, Abu Dhabi, UAE'. The District Forum only relied upon the Death Certificate issued by Health Authority, Abu Dhabi, in which only the place of death i.e. 'on the way to hospital-Abu Dhabi' is mentioned. It wrongly relied upon Death Notification Ex.OP-4, which has no supporting evidence to prove that the DLA died due to cardiac arrest. It was, thus, contended that the complainant is entitled the insurance claim under the policy, in question, due to accidental death of her son, being beneficiary and the appeal/complaint is liable to be allowed.
8. Per contra, learned counsel for the opposite parties contended that the District Forum has passed the impugned order, after due appreciation of the evidence led before it. The DLA died due to cardiac arrest, as per Death Notification Ex.OP-4 and there First Appeal No.393 of 2016 6 is no doubt regarding his death due to heart attack. The complainant has not led any cogent evidence to prove that the DLA died accidental death. The impugned order is well reasoned and the appeal deserved to be dismissed.
Consideration of Contentions
9. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties.
10. Admittedly, the son of the complainant obtained "Pravasi Bhartiya Bima Yojna" policy, Ex.OP-2, valid from 05.06.2014 to 04.06.2016; under which personal accident cover of ₹10,00,000/- was provided. The DLA was an employee of 'Green Line Health & Electrical Installations LLC Abu Dhabi'. He died on 27.07.2014 on the way to hospital, after he accidentally fell from height, while working at the site under the employment of the above said company. This fact is evident from the Death Certificate Ex.C-6. The claim lodged by the complainant was repudiated by the opposite parties, vide letter dated 29.07.2015 Ex.C-20, on the ground that the cause of death of the DLA was cardiac arrest and was not accidental injury. In this regard, the opposite parties relied upon the Death Notification, Ex.OP-4, in which cause of death is mentioned as 'cardiac arrest'.
11. The complainant has produced affidavit Ex.C-2 of the eye-witness Sh. Dharamveer S/o Sh. Santokh Singh, R/o Village Gumtala, P.S. Bilga, District Jalandhar, who specifically deposed that on 27.07.2014, he and Dharm Dev were working as First Appeal No.393 of 2016 7 employees of Green Line Health and Electrical Installations LLC Abu Dhabi, U.A.E. at the site of work. The DLA was working at height and all of a sudden, he fell from the height on the ground, due to which he was under severe shock and pain. After arranging the conveyance, Dharm Dev was taken to hospital, where the doctors declared him 'brought dead'. He specifically deposed that the death of Dharm Dev was sudden and voluntary, due to severe shock due to accidental/sudden fall from the height. He further deposed that he brought the dead body of the deceased from U.A.E. to India for his last rites. He further deposed that the deceased was a healthy person and was not suffering from any disease. The complainant also proved the air ticket and work permit of said Dharamveer as Ex.C-7 and Ex.C-8 respectively, in order to authenticate his deposition made in the affidavit.
12. It is a matter of common knowledge that after the fall from height and suffering of injury, the consequences of shock and heart attack are possible. Once a person comes to know that injury is of such a severe nature, shock affects such a person; which may result into heart attack. The opposite parties in their reply have not denied that the DLA died on the way to hospital, after he accidently fell from height while working under the said company at Abu Dhabi; meaning thereby that they admitted the manner of death of the DLA. Their only reliance is on Death Notification Ex.OP-4, in which on the second page, the cause of death is mentioned as 'cardiac arrest'. It is relevant to mention here that the First Appeal No.393 of 2016 8 opposite parties have not led any evidence, in the shape of any hospital record, test reports etc., to prove that the DLA was having any past history of heart ailment, from which it could be inferred that he died due to heart attack. Moreover, there is no supporting document annexed with the Death Notification, to authenticate it. Hon'ble National Commission in similar set of circumstances in Chhattisgarh State Power Holding Company Ltd. v. Bajaj Allianz General Insurance Company Ltd. II (2014) CPJ 112 (NC) held that cardiac arrest could take place due to shock upon falling from a pole of 36' in height. Even if it is believed that heart attack occurred while working on pole, the factum of falling from pole and his death does not exclude the incident from the nomenclature of 'accident'. It was observed in Para No.10 as follows:
10. As per the above report, the cause of death is cardiorespiratory failure. The cause of cardiac arrest could be the existence of a pre-cardiac disease or even in the absence of such a disease, the cardiac arrest could take place due to shock upon falling from a pole 36' in height. In the event of death by any means, the cardiac arrest or cardiac failure has to take place and only after that, a person is usually declared as dead. The cause of death stated in the post mortem report, therefore, does not support the version of the respondent that it was a death not due to accident.
Further, it has been stated in the postmortem report that no external injury was found on the body of the deceased. During fall from a pole, it is not necessary that bodily injury First Appeal No.393 of 2016 9 should always take place. The basic point is that there has been a fall from a pole and there has been the death of the employee. The argument taken by the respondent that the employee suffered heart attack while working on the pole, he died then and there, and then fell down, is not substantiated by any medical evidence. Rather, the version that because of his fall from the pole, he got a shock, due to which he suffered a heart-attack and died, seems to be a more plausible explanation.Even if it is believed that heart-attack occurred while he was working on pole, the factum of falling from the pole and his death does not exclude the incident from the nomenclature of accident, based on the test of any prudent thinking and common sense.
13. In a recent case United India Insurance Co. Ltd. v. Alka Maheshwari 2017 (1) CLT 83 (NC) Hon'ble National Commission observed in Paras No.11 and 12 as under:
"11. It is the own version of the Insurance Company that when the deceased went to the urinal in the bathroom after waking up from bed on 05.07.2007, he suddenly fell on the floor and blood started oozing from his ear and nose and thereafter, he vomited. The report made by Dr. Atul Saxena, the government doctor, who attended to him immediately after the accident, says that it was the case of fall on floor in the bathroom. The said doctor also stated that there was no external, visible injury seen. On the other hand, the panel doctor of the Insurance Company as well as the investigator has stated that he went unconscious due to high blood pressure and started bleeding. A perusal of the material on record, however, does not indicate that there is any evidence in support of the assertion of the Insurance First Appeal No.393 of 2016 10 Company that the deceased was an old case of high blood pressure.
The case of the complainant is that he was not suffering from any disease during the last ten years. In the absence of any concrete evidence, it cannot, therefore, be believed that the deceased was suffering from high blood pressure. Further, it has been amply made clear in the order passed by this Commission in Padma Ramanathan vs. National Insurance Co. Ltd. (supra) after referring to the law stated in para 578 of Halsbury's Laws of England that "any cause which is not internal must be external, but this does not mean that the injury must be external; there may be, and often is, nothing externally visible to indicate the presence of internal injury at all". In Deepak Jaiswal vs. Oriental Insurance Company (Supra) also, it was stated as follows:-
"10. In our view, undisputedly, the deceased fell down while going to bathroom and from this it cannot be presumed that he fell down because he was suffering from hypertension. A fall can be for various reasons such as slippery surface or missing of a step from the stair. Therefore, it would be difficult to draw an inference that the fall of the insured must be because of hypertension. Further, there is nothing on record to establish that the deceased was having hypertension and that it was known to him before taking the policy. Hence, it can be held that Insurance Company has failed to establish that the assured fell down because of hypertension."
12. The facts stated in the case quoted above are applicable to a large extent to the present case. As already stated, there is no evidence on record to establish that the deceased was suffering from hypertension and that the same was known to him, First Appeal No.393 of 2016 11 before taking the policy. The opinion given by panel doctor of the Insurance Company and the Government doctor that the fall was on account of hypertension, seems to be quite a remote possibility. It is held, therefore, that the State Commission and the District Forum rightly refused to believe the version of the Insurance Company in this regard and held it to be a case of fall by accident. It is quite evident that the patient died shortly after suffering the fall in the bathroom and in fact, he succumbed to his injuries even before reaching the S.K. Soni Hospital, leading to the implication that he did suffer from an internal injury after the fall in the bathroom."
14. Still further in Eeta Devi v. United India Insurance Co. Ltd. 2015 (2) CLT 504 (NC), Hon'ble National Commission held that the onus to prove that the death of the insured is a natural one and not an accidental death shifts on the Insurance Company. The repudiation of the claim was held totally unjustifiable. In the present case, the opposite parties failed to discharge their onus by proving that the death of the insured was a natural one.
15. Applying the ratio of the law laid down in the above authorities, it can be held that after the fall from the height, the insured must have suffered shock due to which he further suffered heart attack and died due to accidental injuries. The opposite parties have also failed to produce any evidence to show that the insured was having the previous history of heart ailment prior to First Appeal No.393 of 2016 12 taking the policy. The District Forum has passed the impugned order, without properly appreciating the evidence on record and the law applicable on the subject, and the same is not sustainable in the eyes of law.
16. Under the policy Ex.OP-2, the personal accident cover for the insured person is mentioned as ₹10,00,000/- and the complainant, who is mother of the DLA and beneficiary, is entitled to receive the same from the opposite parties, on account of his accidental death, along with interest. For the mental agony and harassment on the part of the opposite parties, by not paying the genuine claim to her, she is also entitled to suitable compensation. In our opinion, a sum of ₹1,00,000/- would be suitable compensation on this account.
Conclusion
17. Sequel to the above discussion, the appeal is allowed and the impugned order passed by the District Forum is set aside. Consequently, the complaint filed by the complainant is accepted and the following directions are issued to the opposite parties:
i) to pay ₹10,00,000/-, being the sum assured under the policy, in question, to the complainant, along with interest at the rate of 9% per annum from the date of lodging the claim till realization;
ii) to pay ₹1,00,000/-, as compensation for the mental agony and harassment suffered by the complainant; and
iii) to pay 11,000/-, as litigation expenses.First Appeal No.393 of 2016 13
18. The opposite parties shall comply with this order within 30 days of the receipt of certified copy of the same, failing which the compensation amount shall also carry interest at the rate of 9% per annum from the date of this order till realization.
19. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER May 31, 2017.
(Gurmeet S)