HDFC Egro General Insurance Co. Ltd. vs Lataben

Dr. Sadhna Shanker, Member

This appeal has been filed under section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) in challenge to the Order dated 22.02.2012 of the State Commission in complaint no. 04 of 2008, whereby the complaint of the complainant was allowed and appellant – insurance company was directed to pay a sum of Rs. 20,00,000/- to the complainant with interest at the rate of 6 per cent from the date of admitting complaint till payment of the amount.

I have heard the learned counsel for the appellant – insurance company and the learned counsel for the respondent – complainant and perused the record including the State Commission’s impugned Order dated 22.02.2012 and the memorandum of appeal.

The facts of the case are that the husband of the complainant took a personal accident insurance policy (Bank Accident Protection Plan – HV) from the appellant – insurance company for a sum insured of Rs.20,00,000/- in case  of accidental death / permanent disability and for sum insured of Rs. 2,00,000/- in case of Broken Bones. The policy was valid for the period from 28.06.2006 to 27.06.2007.  It is alleged that during the subsistence of the said insurance policy, on 12.12.2006, while the insured – Prakashbhai Mehta was trying to sit in rickshaw, his head hit with the upper hood of the auto-rickshaw and received some head injuries. He was taken to Mahavir General Hospital, admitted there and took the treatment from there but unfortunately on 23.12.2006, he died. The complainant submitted a claim with the insurance company. It is alleged that the insurance company did not pay any heed to the claim. Thereafter the complainant went to the branch office of the insurance company with a written application dated 19.12.2006 but the insurance company did not reply to the application. When the legal notice was sent to the insurance company, reply thereto was sent through her advocate stating that the complainant’s claim was repudiated vide letter dated 02.04.2007 on the ground that the investigation report concludes that the death has occurred as a result of internal brain defect and not due to any accident caused by external violent and visible means.

Aggrieved by the repudiation by the insurance company, the complainant filed a complaint before the State Commission. The State Commission vide impugned Order dated 22.02.2018 allowed the complaint and directed the insurance company to pay Rs. 20,00,000/- to the complainant with interest at the rate of 6% per annum from the date of admitting the complaint till the date of payment along with cost of Rs. 5,000/-.

Aggrieved by the said Order of the State Commission, the insurance company filed the instant appeal before this Commission.

Learned counsel for the appellant – insurance company has submitted that the deceased insured was suffering from hypertension for many years and was on medication and that as per the medical report the insured had died due to sudden cardio-respiratory arrest and not due to the accident. The insured was operated for right basal “ganglia hemorrhage” and was treated for ‘deep brain haemorrhages through (R) Temporoparietal craniotomy with evacuation of ICH. The provisional diagnosis was “ICH” with I.V.H., DM and HT (i.e. intracerebral haemorrahage with intra ventricular haemorrahage, diabetes mellitus and hypertension). She further submits that on the one hand, the complainant at the time of giving history to the doctors at the hospital stated that the patient was travelling in the auto-rickshaw and he suddenly felt uneasiness, weakness and could not come out of the auto-rickshaw whereupon he was brought to the hospital. On the other hand, the son of the insured had written a letter on 12.12.2006 to the insurance company that his father and mother went for a walk from their residence and when they were coming back home in an auto-rickshaw, his father fell down and he was immediately taken to the hospital. Both the statements are contradictory to each other and are afterthoughts and the claim is not genuine. She further submits that even the doctors who examined the insured at Mahavir Hospital did not find any injury on his body and it was a case of natural death and not an accidental death. It has also been clearly recorded by the Doctors in the history and clinical examination sheet that there was no convulsion or fall suffered by the patient. She furthermore submits that the burden to prove that the death was accidental was on the complainant but no documentary evidence has been produced to prove that the death of the insured would fall within the definition of the ‘accident’ as contained in section 3(1) of the policy and the complaint is liable to be dismissed. She also relied on the Hon’ble Supreme Court’s judgment in the case of Smt. Alka Shukla vs. Life Insurance Corporation of India, Civil Appeal no. 3413 of 2019 decided on 24.04.2019 wherein it was held as under:

“12. In the present case, there is no evidence to show that any bodily injuries were suffered due to the fall from the motorcycle or that they led to the assured suffering a heart attack. There is no evidence to show that the accident took place as a result of any outward, violent and visible means. The assured died as a result of a heart attack which was not attributable to the accident.”

Learned counsel for the respondent – complainant submits that the insured met with an accident while entering into auto-rickshaw and received head injuries whereupon he was taken to the hospital and unfortunately on 23.12.2006 the insured died. He further submits that vide letter dated 19.12.2006, the son of the insured informed the insurance company about the incident stating that ‘due to unavoidable circumstances my father gone into coma and Admitted in Mahaveer General Hospital in I.C.U.’ but the insurance company has neither replied nor any action was taken and only in response to the legal notice, the insurance company gave reply dated 26.12.2007. He further submits that the copy of the repudiation letter has not been supplied to the complainant. He further submits that the investigator had prepared the report only after contacting the treating doctors and without contacting the complainant and the said investigation report had neither been supplied to the complainant nor filed before the State Commission. The complainant had not been permitted to cross-examine the investigator. Therefore, the investigation report is false and fabricated and the same ought not to be the basis for repudiation of the claim. He also submits that the insured was suffering from provisional diagnosis like ICH & IVH DM/HT, which means Intra-Cerebral Hemorrhage and Intra-Ventricular Hemorrhage and these usually occurred due to external injury on the head due to the accident and final diagnosis like sudden ‘cardio respi. Arrest inclo optd for Rt. Basal Ganglia hemorrhage.’

The only point in the instant case which needs consideration is whether the insured died due to an accident. From the repudiation letter the relevant terms of the policy regarding accidental death are as under:

“If during the Period of Insurance an Insured Person sustains Bodily Injury, which directly and independently of all other causes results in Death within twelve (12) months of the Date of Loss, then the Company agrees to pay to the Insured Person’s Beneficiary or legal representative of the Compensation stated in the Schedule”

“Bodily Injury means physical, external, Accidental bodily injury occurring suddenly in time and resulting solely and independently of any other cause or any physical defect or infirmity existing before the Period of Insurance”

In this case, from the averments of the son and wife of the deceased insured, it is not clear as to what had happened because these are contradictory and different. It is not clear as to how the State Commission has come to the conclusion that the son’s version is to be accepted and decided the matter. Therefore, the happening of the supposed accident leading to the death is not proved. Further, in this case, there is no FIR or post mortem done to prove whether any accident had taken place.

In the hospital, in the column of ‘History’, it is noted by the doctor that the insured was travelling in auto-rickshaw at that time and he suddenly felt uneasiness and weakness and he could not come out from the rickshaw and that there was no convulsion or fall suffered by the patient. Had the injuries on the head been received due to the fall while entering into auto-rickshaw, it would have been mentioned in the ‘History and Clinical Examination’ of the patient. From a perusal of the column of Final Diagnosis of the General File of the Shri Mahavir General Hospital, it is clear that the patient had ‘sudden cardio-respiratory arrest’ and was operated for right basal “ganglia hemorrhage”.

It is clear from the above that the complainant has been unable to prove any accident which caused any bodily injuries, leading to death as envisaged in the policy. The unfortunate death of the insured had occurred due to factors which are not attributable to any proved accident or bodily injury, as contained in Section 3(1) of the policy.

In the result, the appeal is allowed and the impugned Order dated 22.02.2012 is set aside.