Madras High Court
Life Insurance Corporation vs Minor Rohini (Deceased) Rep.By Next on 14 March, 2012
Author: K.Mohan Ram
Bench: K.Mohan Ram
In the High Court of Judicature at Madras
Dated : 14.3.2012
Coram :
The Honourable Mr.Justice K.MOHAN RAM
and
The Honourable Mr.Justice G.M.AKBAR ALI
A.S.NO.953 OF 2005
AND C.M.P.NO.17668 OF 2005
Life Insurance Corporation
rep.by its Branch Manager
Sathyamangalam ..Appellant
Vs
1.Minor Rohini (deceased) rep.by next
friend paternal grandmother
R.Thangamani
(R.Thangamani appointed as guardian for minor Rohini vide order of
Court dated 28.3.2007 made in C.M.P.Nos.138 and 139 of 2007)
2.Chellammal
3.Thangamani
(R3 brought on record as the legal heir of the deceased R1 vide order
of Court dated 29.10.2010 in C.M.P.No.529 of 2008) ..Respondents
APPEAL under Section 96 of the Civil Procedure Code against the judgment and decree dated 28.2.2005 made in O.S.No.38 of 2004 on the file of the Additional District Court-Fast Track Court No.2, Gobichettipalayam.
For Appellant : Mr.Manoj Sreevalsan
For Respondents : Mr.R.T.Doraisamy
J U D G M E N T
K.MOHAN RAM,J The defendant in O.S.No.38 of 2004 on the file of the Additional District Court-Fast Track Court No.2, Gobichettipalayam is the appellant in the above appeal.
2. The respondents/plaintiffs filed the said suit seeking the following reliefs, namely
(i) to declare that the holder of six policies bearing Nos. 761611460, 760879781, 762947489, 761611397, 762489349 and 760457429 R.Murugesan died on 18.10.2002 by accident;
(ii) to direct the defendant/appellant to pay to the respondents Rs.14,32,000/- with interest, etc; and
(ii) for costs.
3. The case of the plaintiffs is as follows :
The said R.Murugesan the father of the first plaintiff had taken six policies from the defendant Corporation for a sum of Rs.7,16,000/-. All the six policies were endowment policies. As the life assured - R.Murugesan died due to heart attack, the defendant is liable to pay a sum of Rs.14,32,000/- together with bonus, interest, etc., to the plaintiffs, who are the legal representatives of the deceased life assured. Till 9.8.2002, R.Murugesan was hale and healthy. On 9.8.2002, he had taken treatment for chest pain. In the morning of 18.10.2002 for taking treatment for chest pain, he was admitted in Immanuel Hospital, but on the same day at 5.45 PM, he died. The first plaintiff is the only daughter of the deceased and the second plaintiff is his mother. The father of the deceased predeceased him. Except the plaintiffs, there are no other legal representatives for the deceased. On 19.9.2003, the plaintiffs submitted the policies, legal heir certificate and medical certificate to the defendant Corporation claiming the amounts payable under the policies. But, the defendant did not send any written reply. Hence, a legal notice was served on the defendant on 30.9.2003. On 3.10.2003, when the defendant was requested to pay the amounts due under the policies, the defendant orally stated that the death of R.Murugesan can be taken only as a natural death and not as an accidental death and that therefore, the accident benefit cannot be claimed. Further, the defendant instructed the plaintiffs that only if they get a declaration from the competent court that the death of R.Murugesan due to heart attack amounts to accidental death, the defendant will pay the accident benefit also. Therefore, the suit has been filed seeking the aforesaid reliefs.
4. The suit was contested by the appellant/defendant by filing a detailed written statement inter alia contending as follows :
The cause of action for the suit has not arisen within the territorial jurisdiction of the court. Kothamangalam Primary Agricultural Co-operative Bank Limited (hereinafter referred to as the bank) is a necessary party to the suit. Since the necessary party has not been impleaded as a party to the suit, the suit is bad for non joinder of necessary party. Mrs.Devi wife of R.Murugesan, by her letter dated 13.11.2002, informed the defendant that her husband died due to heart attack. Except policy No.760457420, in respect of other five policies, necessary claim forms were furnished to the nominees. Thereafter, as Mrs.Devi died on 16.11.2002, the claims forms A and C were submitted by the mother of the deceased R.Murugesan. As it was informed that the life assured died due to heart attack, the medical records relating to the treatment given to him in claim forms B and B1 were sought for, but the same were not submitted. In respect of policy No.760457420, the bank also had not submitted any claim.
5. It has been further stated in the written statement that since within one year from the date of taking policy No.762947489 the life assured died, as per the provisions of the Insurance Act, 1938, an investigation was conducted and the investigation revealed that the life assured has misappropriated a sum of Rs.1 crore from the bank and as the same was found out, fearing action, he had committed suicide, after sending a leave letter on 18.10.2002. As per Clause 6 of the policy relating to policy No. 762947489, the claim was rejected, as the life assured has committed suicide.
6. In the written statement, it has been stated that in respect of the remaining five policies, the defendant undertakes to pay the amounts. The policy No.760457240 is only for a sum of Rs.22,000/- and not for Rs.1 lakh and it is only a money back policy. To make wrongful gain, incorrect particulars have been mentioned in the plaint. Since the life assured died due to heart attack, it can be construed only to be a natural death and not as an accidental death. Further, as the policy holder died due to committing suicide, in respect of the sixth policy, the plaintiffs cannot make any claim. The defendant is ready to deposit a sum of Rs.3,32,300/- into Court in respect of policy Nos.760457420, 760879781, 761611397, 761611460 and 762489349. Since the life assured R.Murugesan has committed suicide, it cannot be declared that his death was due to accident. The plaintiffs are not entitled to claim any amount in respect of policy No.762947489 and are entitled to claim a sum of Rs.2,90,536/- in respect of four policies and in respect of policy No.760457240, a sum of Rs.41,764/- has been paid to the bank. On the aforesaid pleadings, the defendant sought for dismissal of the suit.
7. The Trial Court framed the following issues :
(i) Whether it is true that the policy holder died due to accident ?
(ii) Whether the case of the defendant that the policy holder did not die due to accident is true ? And
(iii) Whether the plaintiffs are entitled to the claim made ? And
(iv) To what other reliefs ?
8. During trial, on the side of the plaintiffs, PW1 to PW3 were examined and ExA1 to ExA7 were marked. On the side of the defendant, DW1 to DW4 were examined and ExB1 to ExB21 were marked. On a consideration of the evidence adduced before it, the Trial Court decreed the suit as prayed for. Being aggrieved by that, the defendant has filed the above appeal.
9. Heard both.
10. Mr.Manoj Sreevalsan, learned counsel for the appellant submitted that the life assured R.Murugesan had taken six policies with the appellant and out of that, five policies were earlier in point of time and after taking the sixth policy, within one year, he had died. Learned counsel submitted that the life assured R.Murugesan, who was working as a Secretary in the bank, committed suicide on 18.10.2002 fearing departmental proceedings initiated due to fraud committed by him to the tune of Rs.1 crore. The plaintiffs have not discharged the burden of proving that the life assured died on account of accident.
11. Learned counsel for the appellant further submitted that the Court below has failed to appreciate the inherent contradiction in the evidence of PW1 and PW2. According to the learned counsel, PW1 has stated that he took R.Murugesan to the hospital on 18.10.2002 at 8 AM and that she was there in the hospital till 5.45 PM. She also stated in her evidence that she has paid the medical bill given by the hospital. But, no documentary evidence is there whereas PW2 had stated that it is he who admitted R.Murugesan in the hospital and he has not stated anything about the presence of PW1 in the hospital. PW2 also stated that R.Murugesan was first seen by Dr.Nagarajan at Immanuel Hospital on 18.10.2002. But, PW3 deposed that when R.Murugesan was admitted as an inpatient, Dr.Saroja has attended and given the first aid.
12. Learned counsel for the appellant submitted that the Court below is not right in holding that heart attack is an accident. As per the policy conditions, the accident benefit is payable only if the life assured shall sustain any bodily injury resulting solely and directly from the accident caused by outward violent and visible means and such injury shall within 120 days of its occurrence sole, directly and independently of all other causes result in the death of the life assured. According to the learned counsel, by no stretch of imagination, heart attack can be called as an accident. Heart attack is only a cause for death. Even the plaintiffs have not pleaded that the life assured has suffered any bodily injury caused solely or directly from the accident caused by outward violent and visible means. Learned counsel for the appellant submitted that the Trial Court has not properly considered the evidence of DW1 to DW4. Learned counsel further submitted that the Trial Court has not properly considered ExB19 the investigation report of DW3.
13. Countering the said submissions, Mr.R.T.Doraisamy, learned counsel for the respondents made the following submissions :
PW1 the mother of the life assured has clearly stated that her son was living hale and healthy and was not suffering from any ailments and that on 9.8.2002, he had a slight chest pain and for that, he had taken treatment with the family doctor Dr.Dhanasekaran at Nambiyur. PW1 also stated that on 18.10.2002 morning, since he complained of chest pain, he was taken to Immanuel Hospital at Sathyamangalam where he was given first aid, admitted as an inpatient and given intensive treatment, but he died at 5.45 PM on the same day. The medical certificate has been marked as ExA4. The case sheet of Immanuel Hospital has been marked as ExA7. The death certificate has been marked as ExA3. PW3 the doctor attached to Immanuel Hospital has spoken to about the treatment given to R.Murugesan. He stated that R.Murugesan was admitted as an inpatient at his hospital at 1.15 PM on 18.10.2002 and given first aid by his wife Dr.M.Saroja. At 5.15 PM on the same day, he had examined R.Murugesan and perused the medical records. While examining R.Murugesan, he had complained of pain on the left side of the chest and it had spread upto the left hand. He was suffering from breathlessness. His blood pressure was 100/70 and pulse rate was 88. The ECG showed myo cardial infarct pattern. Therefore, he was put on oxygen. Further, injection was given to reduce the chest pain. But at 5.30 PM, he started gasping and his condition deteriorated and at 5.40 PM, his blood pressure came down to 40/70 and he died due to heart attack at 5.45 PM. But, nothing has been elicited in his cross examination to discredit his evidence.
14. Learned counsel for the respondents further submitted that PW2 has clearly stated that R.Murugesan complained of chest pain on 18.10.2002. He went to Sathyamangalam to fetch a taxi and R.Murugesan was taken to Immanuel Hospital and after giving first aid, he was admitted as an inpatient. But ultimately, he died at 5.45 PM on the same day. PW2 has also deposed that he was working as an Accountant with R.Murugesan from 1998. In his cross examination, nothing has been elicited to discredit his evidence. Learned counsel further submitted that there are no material contradictions between the evidence of PW1 and PW2 to discredit their evidence.
15. Learned counsel for the respondents also submitted that from the evidence of PW1 to PW3 and the medical certificates ExA4 and ExA7, it has been clearly proved that the death was due to heart attack. Learned counsel further submitted that due to stress in work, both at the bank as well as in looking after his agricultural operations and brick kiln, he had suffered heart attack. Only due to stress, R.Murugesan suffered heart attack and therefore, it should be construed as accidental death.
16. Learned counsel for the respondents further submitted that the defendant has not proved by acceptable evidence that R.Murugesan had committed suicide. Even though there is evidence to show that money belonging to the bank had been misappropriated by the office bearers and departmental enquiry had been initiated, there is no evidence to show that fearing departmental action R.Murugesan had committed suicide. Though it is the specific case of the defendant that after sending a leave letter to the bank, he went to his brick kiln, consumed poison and died there itself, the same has not been proved. Rather it has been clearly proved through the evidence of PW1 to PW3 that R.Murugesan had not consumed poison and did not die at his brick kiln and that he was admitted in the Immanuel Hospital at Sathyamangalam and in spite of the treatment given, he had died due to heart attack.
17. Learned counsel for the respondents further submitted that the entire evidence has been thoroughly scrutinised and considered by the Court below and rejected the case of the defendant that the life assured R.Murugesan had committed suicide. According to the learned counsel, the evidence of DW1 to DW4 has been considered thoroughly and ExB19 the investigation report of DW3 had been rejected after recording reasons. The Court below has rightly pointed out that the witnesses said to have been examined by DW3 have not been examined before the Court. Learned counsel further submitted that in the written statement, it has not been stated by the defendant that DW3 Somasundaram was appointed as the Investigator and only from his report ExB19, it came to light that R.Murugesan had committed suicide. But, it has been simply stated that "as per our investigation reports and evidence available", R.Murugesan had committed suicide. It has not been stated as to who investigated and when the report was submitted. Even in the sworn affidavit filed by DW3, the names of the witnesses have not been stated. It has also not been stated that he examined Ramasamy and Rangan and recorded their statements. In the affidavit it has been specifically stated that R.Murugesan had died in his house. But contrary to that, again it has been specifically stated as if R.Murugesan died in the brick kiln. Only for the aforesaid reasons, the Court below disbelieved the document ExB19 and the evidence of DW3.
18. Learned counsel for the respondents further submitted that it has not been stated that the alleged suicide note was obtained from the office in a proper manner. The handwriting and signature found in the alleged suicide note has not been proved as that of R.Murugesan. Further, DW3 had admitted that he had not examined the doctor at Immanuel Hospital, who treated R.Murugesan. As far as DW2 is concerned, the Court below has pointed out that on 18.10.2002, R.Murugesan had sent ExB21 leave letter. He further admitted that he came to know that R.Murugesan died due to heart attack. He further stated that he did not have personal knowledge about his death, that he had no personal knowledge about the alleged misappropriation of the bank funds and that he came to know about it only through newspapers. Therefore, the evidence of DW2 would in no way advance the case of the defendant.
19. In support of his contentions, Mr.R.T.Doraisamy, learned counsel for the respondents placed reliance on the following decisions :
"(i) Faquir Singh Vs. Union of India (reported in AIR 2002 J&K 62;
(ii) Management of Pachamalai Estate, Valparai Vs. Smt.Mani (reported in 2007 (1) LW 249);
(iii) Ambalal Lallubhai Panchal Vs. L.I.C.of India (reported in AIR 1999 Gujarat 280); and
(iv) United India Insurance Co.Ltd. Vs. C.S. Gopalakrishnan (reported in 1989 ACJ 794)."
20. We have carefully considered the aforesaid submissions of the learned counsel on either side and perused the materials available on record.
21. The points for determination in the above appeal are as follows:
"i. Whether the life assured R.Murugesan died due to heart attack or due to suicide ? And ii. If R.Murugesan died due to heart attack, whether it will amount to death due to accident?"
22. It is the specific case of the plaintiffs that the life assured R.Murugesan was hale and healthy when he took the six insurance policies with the defendant and was not suffering from any disease. It is also the case of the plaintiffs that on 9.8.2002, R.Murugesan had slight chest pain and for that, he was treated by the family doctor Dr.Dhanasekaran at Nambiyur and was regularly taking medicine. On 18.10.2002, as R.Murugesan complained of chest pain, he was taken to Sathyamangalam Immanuel Hospital and admitted as an inpatient. There he was given first aid and thereafter, he was treated by Dr.V.Nagarajan PW3. But in spite of best treatment given, he died at 5.45 PM on 18.10.2002. It is the further case of the plaintiffs that till 18.10.2002, R.Murugesan had not suffered any illness and only on 18.10.2002, he complained of severe chest pain. As R.Murugesan had died due to heart attack, the cause of death should be construed as accident only and therefore, according to the plaintiffs, the defendant is liable to pay the accident benefit as per the policy conditions.
23. To prove the aforesaid case of the plaintiffs, PW1, who is the mother of the deceased, PW2 the Accountant with the deceased and PW3 the doctor, who treated him, have been examined. As rightly pointed out by the learned counsel for the plaintiffs/respondents, PW1 and PW2 have stated that till 9.8.2002, R.Murugesan was hale and healthy and was not suffering from any disease and only on 9.8.2002, he complained of slight chest pain and was properly treated by the family doctor and only thereafter on 18.10.2002, he complained of severe chest pain and was taken to Sathyamangalam and admitted as an inpatient in the Immanuel Hospital where he was first attended by Dr.Saroja and given first aid and thereafter, he was examined and treated by Dr.V.Nagarajan PW3. PW3 has categorically stated about the treatment given to R.Murugesan, his health condition at the time when he examined him, how the health condition of R.Murugesan started deteriorating and how he ultimately died. According to PW3, the death was due to heart attack. ExA4 and ExA7 have been marked through PW3, which also show the cause of death as heart attack. Therefore, the Court below is right in holding that R.Murugesan died due to heart attack.
24. Now, it has to be seen as to whether the defendant/appellant has proved its case that R.Murugesan died due to suicide. It is the case of the defendant that since huge amount of the bank had been misappropriated by the office bearers of the bank, with the connivance of R.Murugesan and the misappropriation was detected and departmental proceedings have been initiated and only fearing action, R.Murugesan had committed suicide. It is also the specific case of the defendant that R.Murugesan had consumed poison at his brick kiln and his body was found therein. Therefore, according to the defendant, death was due to suicide. It is the further case of the defendant that before committing suicide, R.Murugesan left a suicide note. But, as rightly pointed out by the Court below, the alleged suicide note has not been proved as the one written by R.Murugesan, as the handwriting contained in the alleged suicide note has not been proved as that of R.Murugesan.
25. The defendant has relied upon the evidence of DW3 the Investigator appointed by it and his report ExB19. As rightly pointed out by the Court below, neither the name of DW3 nor any mention about ExB19 is found in the written statement. The evidence of DW3 and the contents of ExB19 have been considered by the Trial Court at depth. DW3 has stated that he received a complaint from one Rangan and Ramasamy to the effect that R.Murugesan had committed suicide by consuming poison. But, their statements have not been produced before Court and they have also not been examined as witnesses.
26. As rightly submitted by the learned counsel for the respondents, the Court below has pointed out the various infirmities in the evidence of DW3 and in ExB19 referred to in the submissions put forth by the learned counsel. We do not find any error in the reasoning of the Court below in rejecting the evidence of DW3 and ExB19. As rightly pointed out by the Court below, DW3 has not examined any of the neighbours of R.Murugesan nor the family members of R.Murugesan. DW3 has also not gone to Immanuel Hospital and examined the doctors, including PW3, who treated R.Murugesan. He had not inspected the hospital records nor verified the genuineness of the medical certificate issued by PW3.
27. As rightly pointed out by the Court below, while in one place in the evidence of DW3 it has been stated that R.Murugesan died at his residence, in another place it has been stated as if he committed suicide by consuming poison at his brick kiln. This material contradiction throws a doubt about the veracity of the evidence of DW3 and ExB19. The mere news items published in the dailies that R.Murugesan had swindled the bank money and that fearing departmental action, he committed suicide cannot be the basis for coming to the conclusion that R.Murugesan had committed suicide. Therefore, we are of the considered view that the Court below is right in coming to the conclusion that R.Murugesan had not committed suicide by consuming poison as contended by the defendant, but he died due to heart attack.
28. Now, the question that remains to be considered is as to whether the death due to heart attack can be considered to be death due to accident. The learned counsel for the respondents submitted that due to stress caused by heavy work in the bank and due to looking after his agricultural operations and brick kiln, he underwent heavy stress, which has caused heart attack and therefore, the death is due to accident.
29. But, it has to be pointed out at this juncture that there is no such pleading in the plaint. In the plaint, it has been stated that R.Murugesan died due to heart attack and it has been further stated that the death due to heart attack should be construed as death due to accident. As rightly pointed out by the learned counsel for the appellant, as per the policy conditions, the accident benefit is payable only if the life assured shall sustain any bodily injury resulting solely and directly from the accident caused by outward, violent and visible means and such injury shall within 120 days of its occurrence solely, directly and independently of all other causes result in the death of the life assured.
30. In this case, there is absolutely no evidence that R.Murugesan had sustained any bodily injury resulting solely and directly from the accident caused by outward, violent and visible means. It is not the case of the plaintiffs that R.Murugesan was involved in any accident. Simply the plaintiffs claimed that as the death has been caused due to heart attack, it should be construed to be a death due to accident. There is absolutely no evidence on record to show that huge stress was caused to R.Murugesan due to heavy work in the bank or his involvement in agricultural operations as well as brick kiln activities. Heart attack may be due to so many reasons. In this case, it has not been established by acceptable evidence as to why R.Murugesan suffered heart attack. Therefore, in our considered view, the Court below is not right in coming to the conclusion that death due to heart attack will amount to death due to accident.
31. In the decision reported in AIR 2002 J&K 62 (cited supra) relied upon by the learned counsel for the respondents/plaintiffs, a learned Single Judge of the Jammu & Kashmir High Court, while considering the question as to whether the insurer is justified in rejecting the claim under a policy on the ground that the life assured had committed suicide, has held as follows :
"Therefore, it is held that the unilateral decision taken by the respondents that it is a case of suicide is a decision which is not based on any factual foundation. I am accordingly, of the view :
(i) that in terms of the conditions given in the brochure all types of death are covered;
(ii) there is absolutely no finding of any authority that the death was on account of suicide;
The unilateral decision taken by the respondents is not sustainable :
(iii) that at the spot where the dead body was found hanging there was nothing to indicate as to how and under what circumstances the deceased was able to hang himself. The existence of the knot at the back is suggestive of the fact that this could be done by a third person also."
The facts of that case and the facts of the case on hand are totally different and this decision has no application to the case on hand.
32. In the decision reported in 2007 (1) L.W. 249 (cited supra), a Division Bench of this Court has held as follows :
"This is not to suggest that in every case where an employee dies in heart attack while on duty, it must be taken that the death is on account of accident arising out of and in the course of employment. Obviously the Court is required to find out on the basis of materials on record whether there is any causal connection between the nature of work and the disease suffered by the workman. Obviously any conclusion is to be arrived on the basis of evidence on record and it cannot be laid down as an universal principle that every case of death of employee during working hours on account of heart attack, that the accident arose out of and in the course of employment."
In that case, on evidence, it has been held that the strain and stress and the nature of work that the deceased was doing at the time of his death had accelerated his death and therefore, the employer was liable to pay the compensation under the Workmen's Compensation Act. The facts of that case are totally different from the facts of the case on hand. As held in that decision, any conclusion is to be arrived on the basis of evidence on record and it cannot be laid down as an universal principle that every case of death of employee during working hours is on account of heart attack and that the accident arose out of and in the course of employment. In this case, as pointed out above, there is no evidence on record to show that any stress and strain were caused to R.Murugesan due to his employment with the bank and therefore, it cannot be said that his death was due to any accident.
33. In the decision reported in AIR 1999 Gujarat 280 (cited supra), a Division Bench of the Gujarat High Court has held that the death caused by rabies due to dog bite would be a death resulting from an accident caused by outward, violent and visible means within the meaning of 'accident'. This decision, obviously, is not applicable to the facts of this case.
34. In the decision reported in 1989 ACJ 794 (cited supra), a Division Bench of the Kerala High Court has held on the facts of that case that stress and strain of the work due to long hours with limited rest interval contributed towards his death which arose out of and during the course of employment. The facts of that case are totally different from the facts of the case on hand and therefore, the above decision is also not applicable to the facts of this case.
35. For the aforesaid reasons, the above appeal is partly allowed. As we have held that the death due to heart attack cannot be construed to be death due to accident, the plaintiffs/respondents are not entitled to claim the accident benefit under the policies. But otherwise, they are entitled to other benefits. To that extent, the decree of the Trial Court is modified. Consequently, the above CMP is closed. There will be no order as to costs.
RS To The Additional District Court-Fast Track Court No.2, Gobichettipalayam