State Consumer Disputes Redressal Commission
United India Ins. Co. Ltd.Through ... vs Smt. Alka Maheshwari W/O Lat. Bhagwan ... on 12 January, 2016
Daily Order BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1 FIRST APPEAL NO: 177 /2015 United India Insurance Co. Ltd., Regional Office Sahara Chambers, Tonk Road, Jaipur through Regional Manager. Vs. Smt.Alka Maheshwari w/o Late Bhagwan Sahai Maheshwari r/o M-14 Mahesh Colony, Tonk Road, Jaipur. Date of Order 12.01.2016 Before: Hon'ble Mrs. Justice Nisha Gupta- President Mr. Kailash Soyal -Member
Mr.Shubham Arora counsel for the appellant Mr.Gopal Shastri counsel for the respondent 2 BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):
This appeal has been filed against the judgment of the court below dated 13.1.2015 whereby the insurance claim has been allowed to the respondent.
The short facts of the case are that the complaint has been filed by the respondent on the ground that her husband Bhagwan Sahai has died due to accidental death as he fall down in the bathroom and he was suffered Hematoma in brain which is clear from the report of C T Scan.
Per contra the contention of the respondent is that it was not a case of accidental death. Bhagwan Sahai was patient of hypertension and due to illness he got unconscious and fall down and furthermore it has been also stressed upon that accident has not occurred by any external visible and violent means as the deceased has not suffered any external injury and claim has rightly been repudiated.
Heard the counsel for the parties and perused the order of the court below as well as the original record of the case.3
It is not in dispute that Bhagwan Sahai has fall down in the bathroom. He suffered large brainstem hematoma which is clear from the report of CT Scan. Dr.Atul Saxena has also deposed before the court below that he treated the deceased and at that time Bhagwan Sahai was unconscious. He advised to shift him to SMS Hospital,Jaipur and at that time he could not see any external injury on the body of the deceased.
The contention of the respondent is that due to large brainstem hematoma the deceased had died which has occasioned due to fall in the bathroom whereas the respondent came with a case that first the deceased was got unconscious and then he fall down which was not a violent act and condition of the policy has not been fulfilled . He has referred the opinion of Dr. Ramesh Vijay but the opinion of Dr.Ramesh Vijay carries less weight than the opinion of Dr.Atul Saxena as he has treated the patient just after occurrence and the respondent has relied upon IV (2010) CPJ 34 (NC) Durga Devi Vs. National Insurance Co.Ltd. where it has been said that when there are two varying medical opinion, in such situation credence must be given to opinions and conclusion of medical expert who had actually treated patient and has first hand knowledge of the case.4
Here in the present case Dr.Atul Saxena was having opportunity to treat the patient whereas Dr.Ramesh Vijay has opined only on the basis of the documents that there was no external injury it should be presumed that it was not due to accidental fall and he has tried to made that cause of death was brain hematoma but it was not due to head injury.
Furthermore the claim has been repudiated not on the opinion of Dr.Ramesh Vijay. There is no reference of medical opinion in repudiation letter Anx. R 12. Only on the investigating report and on the fact that there was no external visible injury, the claim has been repudiated.
It has been said on behalf of the appellant that the deceased was patient of hypertension but no documentary or oral evidence has been submitted to support this contention.
The appellant has relied upon IV (2009) CPJ 121 (NC) Gitaben Vs. National Insurance Co. where there was no evidence to the effect that haemorrhage suffered due to injury suffered by the insured. Hence, claim was repudiated which is not the case here.5
Further Insurance Company has relied upon II (2012) CPJ 290 (NC) Meena Devi Vs. New India Assurance Co.Ltd., where Hemiplegia was caused due to high blood pressure and it was mentioned in the prescription written by the doctor which is not the case here.
Further reliance has been placed on II (2014) CPJ 488 (NC) Resham Devi Vs. New India Assurance Co. where the Hon'ble National Commission has stressed upon that the accident should be caused by external violent and visible means. In that case no injury report or postmortem report was presented but here in the present case opinion of Dr. Atul Saxena supports the case of respondent and furthermore external violent and visible means are defined by the Hon'ble National Commission in III (2008) CPJ 82 (NC) Padma Ramanathan Vs. National Insurance Co. where it has been held that words violent, external and visible has been given wide meanings, practically co-extensive with accidental. Further it has been held that violent does not imply actual violence but merely used in anthithesis to without any violence at all and external visible means are also defined as under:
" External means is used to point the contrast with 6 something internal. 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. The effect of the term is therefore to underline that disorders arising within the human body, without ascertainable reference at all to anything coming from outside,are not covered."
Thus, it is not necessary that there must be some external injury in all cases. There should be cases where nothing externally visible to indicate the presence of internal injury at all which is the case here.
The respondent has relied upon I (2006) CPJ 29 (NC) Deepak Jaiswal Vs. Oriental Insurance Company where it has not been proved that deceased was having hypertension and CT Scan report has proved the head injury. Thus, repudiation was found unjustified which is the case here. The CT Scan report clearly shows hematoma in brain which has been occasioned due to fall in bathroom which was a violent external and visible means and thus repudiation was totally unjustified. The court 7 below has rightly held the respondent for entitlement of insurance amount and rightly ordered to pay so. Hence, there is no merit in this appeal and appeal is liable to be dismissed.
(Kailash Soyal) (Nisha Gupta ) Member President nm