Neelam Kumari vs NEW INDIA ASSURANCE CO. LTD.

THIS appeal is directed against the order dated 29.9.2000 passed by the Divisional Forum by virtue of which DF has dismissed the complaint of the appellant. Briefly stated, Surinder Kumar had obtained personal accident policy for Rs. 2 lacs from the opposite party which was valid from 6.12.1996 to 5.12.1999. On 10.9.1997 when the husband of the complainant, who was an auto rickshaw driver was repairing his auto on the road side he was hit by another auto which came from the opposite side causing head injury to Surinder Kumar. Surinder Kumar, injured, was taken to Dr. Satish Mehta Clinic and Research Centre Pvt. Ltd., Shalimar Road, Jammu. But Surinder Kumar died on account of head injury after 1 months after the accident i.e. on 22.10.1997. Widow, being nominee and legal heir of the deceased raised the claim with the opposite party/respondent. Respondent refused to give the claim. Hence the complaint was filed. Opposite party filed his written version and admitted the insurance policy but averred that an Independent Investigator appointed by the Company had opined that deceased had not died because of any accident and the complainant failed to submit the proof regarding the cause of death of the deceased. Complainant in support of her complaint, filed her own affidavit, affidavit of S/shri Bajan Kumar, Dr. Satish Mehta and Raju. The respondent/Company has examined one witness, namely, Sh. J.K. Koul, Administrative Officer. After recording the evidence DF has come to the conclusion that death due to accident has not been proved specifically.

HEARD learned Counsel for the parties at length and we have given our thoughtful consideration to the arguments advanced before us. Before proceeding further with the arguments of the Counsel for the parties some admitted facts are given. It is an admitted fact that deceased after receiving head injury, was not taken to any State Hospital. He was taken to private clinic i.e. Dr. Satish Mehta Clinic and Research Centre Pvt. Ltd. Secondly, it is also admitted fact that no post mortem was conducted, thirdly, it is also an admitted fact that no FIR was filed after the accident but it was filed after the death of the deceased. It is also a fact that the private doctor Satish Mehta, though in a certificate has admitted that deceased has died due to head injury but in cross-examination he has tried to be non-commital regardingcause of death when in reply to a question, he has stated that he does not know the cause of death; natural death might have been there cause of death also. In the light of these admissions, we have to consider the appeal. Learned Counsel for the appellant has contended that DF has escaped to read whole report of the Private Investigator appointed by the respondent and has decided the case merely on the ground that direct death due to accident has not been successfully proved by the complainant. At the initial stage, by reading the impugned judgment, we also feel that the complainant has failed to prove the case and had doubts about the genuineness of the case because it is a fact that no FIR has been filed after the accident. It is a fact that injured has not been taken to any Government Hospital. It is also a fact that there are no medical reports showing the head injury and is also a fact that no autopsy has been conducted on the dead body. But our eyes opened only when we went through the report of the Investigator appointed by the Insurance Company. Investigator has conducted thorough investigation. While giving the history of the case, he has stated that there were family relations between the deceased family and Bharat Bhushan who allegedly caused the accident causing head injury to the deceased. From his statement it appears that deceased was repairing his auto when from the opposite side Bharat Bhushan came in his auto. He was asked to stop for assistance by the deceased. During this time he stopped the vehicle after giving strike to the head of the deceased. It has been admitted by the Investigator that deceased bleeded from the nose. He was taken to Dr. R.K. Raina at Old Janipur, Jammu where both of them were residing. Dr. R.K. Raina, after seeing the patient advised them to take him to Government Hospital because of head injury. Deceased Surinder Kumar declined to go to the Govt. Hospital because he apprehended that his family friend Bharat Bhushan may be caught by the police and challaned. To save the skin of his family friend, he agreed to go to Dr. Mehta who is ENT Head and Neck Surgeon. Dr. Mehta in his certificate dated 10.3.1998 has recorded : "Head injury following road traffic accident - haemorrhage before 1 months of his death." Investigator has admitted this thing. Investigator is very clear in his mind that the deceased did not get himself admitted in the Government Hospital and did not file FIR only to see that his friend who struck his head, may not get involved in criminal case. It is why FIR was filed only after the death of the deceased. The Investigator has made an inquiry from Dr. R.K. Raina to whom the deceased was taken first and he has admitted that Dr. R.K. Raina found head injury and advised to take the deceased to Government Hospital. Investigator has admitted the report of Dr. Mehta who had reported that deceased had received head injury 1 months before in accident. We have thoughtfully gone to the report of the Investigator who has not denied the occurrence. The crux of the report is that accident has taken place, head injury was caused but the deceased who had very deep family relations with the accused, Bharat Bhushan, wanted to save the skin of the accused. It is why he has not filed FIR and even he has not got himself admitted in the Government Hospital. We wonder as to why DF has not considered the report as a whole. We are clear in saying that even the Investigator has not concluded that it is not the case of accident. He has placed all the facts before the respondent for taking their own decision on the settlement of claim. Investigator has never reported that deceased died because of any other cause or the deceased had met the natural death. Not only this, the complainant has examined many witnesses besides her own statement. All the witnesses and complainant are categorical in saying that deceased died because of the accident and of the head injury and there was no cause of any other disease for his death. Deceased was a young man. Insurance Company has not come forward to say that he died natural death. They only pleaded that the complainant was not admitted in the Government Hospital and no post mortem was conducted. There was delay in filing FIR and the death of deceased was not proved by direct evidence.

We must not forget that deceased was an auto driver, an illiterate person and a young man. He had no medical awareness, like, educated class. He was asked by Dr. Mehta to come for treatment again and again but the deceased being young man, took it lightly. Dr. Mehta was inquired by the Investigator and Investigator has reported that doctor disclosed that : "''A'' Subdurak haematoma due to head injury might remain silent and prove fatal later on causing death."

THIS was in reply to question that the deceased himself came to the doctor and he was walking himself but was feeling headache and giddiness. From this it shows that doctor was convinced that deceased had silent haematoma which later proved fatal for him. Consumer Protection Act is for the welfare of the consumers. We have not to go to the technicalities of law. DF has rushed to the conclusion that the death of the deceased was not proved by the accident. So dismissed the claim. We are of the view that report of the Investigator is sufficient to prove that accident took place. Deceased got head injury which is supported by the unrebutted evidence placed on record by the complainant/appellant. Challan has also been produced though late because the police was not informed in the beginning for the reasons given above but the police has investigated the case and challanned the accused, Bharat Bhushan under Section 304(A), RPC. This also proves that occurrence of accident has taken place. It is a fact that Dr. Mehta in his cross-examination has tried to cast shadow on the cause of death of the deceased. It is apparent that he has done it only to save his skin. He is the doctor who has treated the deceased. He should have advised him to go to the Government Hospital as was done by Dr. Raina. Dr. Mehta should have asked for his head X-ray or C.T. Scan. He has not done so. It is why he has deviated from the affidavit and has deposed in cross-examination that he cannot say as to what was the cause of death of the deceased. He has changed his statement in cross-examination only with the fear that he may be asked as to why he has committed dereliction of duty and acted against the professional ethics.

WE are convinced that it is the Investigator who has come to rescue of complainant and has proved the occurrence of accident and head injury caused to the deceased. Witnesses of complainant have squarely connected the head injury with the death of the deceased. Had the cause been otherwise, Investigator would have come forward with that cause because he has made thorough inquiry. Opposite party also has not made any endeavour to plead that head injury was not the cause of death. Therefore, we are convinced that the deceased, a poor auto driver died because of the accident. Insurance Company cannot escape liability only because the poor widow could not pursue her case well. For these reasons, therefore, order of DF is set aside and respondent is directed to pay Rs. 2 lacs to the complainant with 9% interest from the date, three months after the investigation report. The payment shall be made within six weeks from the date of order. Appeal allowed.