National Consumer Disputes Redressal
Ashok Kumar Jain vs Unit Trust Of India And Ors. on 8 February, 2006
Equivalent citations: II(2006)CPJ191(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. Heard the learned Counsel for the petitioner. In this matter a short question arises as to whether the unit linked policy would cover death due to heart failure after operation of the complainant's wife.
2. Complainant/petitioner's wife late Mrs. Kalpna Jain on 29th March., 2000 obtained membership of UTI under Unit Link Insurance Plan, 1971 with a target amount of Rs. 75,000. Late Mrs. Kalpana Jain died on 27th August, 2000 due to heart failure during Cholestectomy operation performed on her at R.K. Stone Clinic, Bhopal by Dr. Anand Saxena due to negligence of the operating surgeon. The complainant preferred claim under Unit Link Insurance Plan.
3. The claim was resisted by UTI on the ground that the insured did not die of any accident and the cause of death was not covered by the plan. There was no privity of contract between the UTI and the two Insurance Companies viz., National Insurance Co. Ltd. and Life Insurance Corporation of India. On behalf of the LIC it was further submitted that the death had occurred before expiry of six months after issuance of membership certificate. Consequently, no amount was payable under the policy.
4. The District Forum exonerated the Insurance Companies and held UTI responsible for payment of the accidental benefit and accordingly awarded a sum of Rs. 50,000 holding that the death of the deceased was accidental.
5. The State Commission on appeal, allowed the appeal of the UTI and the complaint was dismissed.
6. Feeling aggrieved by the said order this revision petition has been filed.
7 Having heard the learned Counsel and having gone through the record, it is evident that the complainant could get personal accident benefit of Rs. 30,000 only on establishing that the insured had died due to accident. Death due to accident is defined to mean as under :
Death occurring within six months of happening of the bodily injuries resulting solely and directly from accident caused by violent, external and visible means independent of any other cause but not the death caused by/resulting from :
(1) Intentional self-injury, suicide or attempted suicide, insanity or immorality or whilst the member is under the influence of intoxicating liquor, drug or narcotics; or (2) Injuries from riots, civil commotion, rebellion, war (whether war be declared or not), invasion, Hunting, Mountaineering, steeple chasing or racing of any kind; or (3) The member committing any breach of the law.
8. Learned Counsel submitted that the complainant had filed an expert opinin of Medico-Legal Institute. Gandhi Medical College, Bhopal giving its opinion that the death appeared to be due to negligent act of operating surgeon. The operating surgeon has not been made a party in this matter. The question whether mere negligence in treatment would constitute accident within the definition of "death due to accident" as referred to hereinabove. The insured was admitted in hospital and was operated upon for Cholestectomy. Learned Counsel submitted that according to Parikh's Text Book of Medical Jurisprudence and Toxicology if death was unexpected, unexplained and unnatural then such deaths are called unnatural or suspicious death and it would require post-mortem. He also pointed out that death under anaesthesia or on operation table or death due to alleged negligence would be unnatural death. These definitions do not talk of accident. This authority refers to unnatural and suspicious death were post-mortem may be suggested and not due to death caused by or in an accident.
9. Supposing we proceed on assumption that this is an unnatural death and might have been caused due to negligence of doctor though such a finding should not be give in absence of concerned doctor. "Death due to accident" is defined to mean death occurring within six months of happening of the bodily injuries resulting solely and directly from accident caused by violent, external and visible means independent of any other cause. The act of operation by the doctor could neither be said to be violent nor on death it could be said to be caused by bodily injuries resulting solely from violent, external and visible means independent of any other cause. Since she was required to be treated, it could also not be said that the negligence of the doctor could be the sole cause of death. According to Black's Law Dictionary the word "Accident " is defined as under:
Accident : (1) An unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated. (2) Equity practice : An unforeseen and injuries occurrence not attributable to mistake, neglect or misconduct.
(emphasis supplied)
10. We feel if the complainant has signed the consent letter undertaking the risks involved in the operation it could not be said to be unexpected altogether. If not, it is difficult to accept the contention that it could be termed as an accident within the meaning of the aforesaid definition of phrase "Death due to accident".
11. In view of the aforesaid discussion, we find it difficult to accept the submission of the learned Counsellor the petitioner that petitioner is entitled to get the accidental benefit under the policy.
12. For the aforesaid reasons, Revision Petition is dismissed accordingly.