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Judgment
Prem Narain, Presiding Member
This appeal has been filed against the judgment dated 13.10.2014 of the Maharashtra State Consumer Disputes Redressal Commission Mumbai in Complaint no.CC/09/2.
The brief facts of the case are that the father of the respondent/ complainant took four personal accident insurance policies from the appellant/ opposite party - Royal Sundram Alliance Co. Ltd., with the following details:
S no.
Policy no. and Period
Sum assured
1.
PE00085132000100-E049 dated 04.04.2007 to 03.03.2009
Rs,4,00,000/-
2.
PE0084733000100 dated 22.03.2007 to 21.03.2009
Rs.4,00,000/-
3.
PASBIG0008 dated 02.01.2007 to 01.01.2008
Rs.10,00,000/-
4.
PE00084865000100-E049 dated 26.03.2007 to 25.03.2009
Rs.4,00,000/-
During the currency of these policies the life assured visited Kailash Mansarovar along with his family. It is the case of the complainant that when the insured was climbing the "icy kailash paravat", he fell down on 05.09.2007 and sustained injury. The insured was brought to Mumbai on 06.09.2007 and was admitted in Nanavati Hospital, Mumbai where his one leg was amputated due to gangrene. After being discharged from the Nanavati Hospital on 02.10.2007 he was again admitted to Hinduja Hospital on 15.10.2007 and he was discharged from the Hinduja Hospital on 22.10.2007. Due to loss of blood, he became very weak and ultimately the insured died on 03.12.2007. The insurance claim was submitted by the complainant to the insurance company after the amputation of one leg and the claim under the policies was repudiated vide letter dated 09.01.2008 which reads as under:
"We refer to a letter dated 22.10.2007 with regard to the claim preferred over the policies taken for Mr Harish Ramchandani.
On scrutiny of the hospital records, it is noted that the insured developed Gangrene due to exposure to the cold temperature, this is also confirmed by our service provider in his report on Hospital Cash claim lodged for the same incident.
We reproduce the policy conditions:
The company shall not be liable for payment of compensation in respect of death, injury or disablement of the insured person as a result of, or which is contributed to by, the insured person suffering from any pre-existing condition or pre-existing physical or mental defect or infirmity. Pre-existing condition shall mean any ailment which existed prior to the effective date of this insurance.
There is no evidence of accidental injury mentioned in the hospital record, further, the disablement is not due to accident but it is due to the pre-existing diabetes.
In view of the above, we are unable to consider your claim and we sincerely regret our inability to assist you on this occasion."
Aggrieved by the repudiation of the insurance claim under all the four policies, the complainant filed a consumer complaint before the State Commission being CC no.CC/09/2. The complaint was resisted by the insurance company mainly on two grounds that there was no proof of accident and the deceased life assured (DLA) did not disclose the fact that he was suffering from diabetes mellitus which was the cause of gangrene which caused the death of the insured. However, the State Commission accepted the complaint and passed the following order:
"Complaint is partly allowed.
Opponent insurance company is directed to pay to the complainant a sum of Rs.26,02,885.30 as detailed below:
Particulars
Amount in Rupees
(a)
The sum insured admissible on account of death of the insured under policies mentioned in the paragraph no.21
Rs.22,00,000/-
(b)
Towards hospitalisation and medical expenses
Rs.3,87,885.30
(c)
Towards transportation charges
Rs.15,000/-
TOTAL
Rs.26,02,885.30
Opponent Insurance Company is directed to pay to the complainant the above-mentioned amount of Rs.26,02,885.30 along with interest @ 9% per annum from the date of filing of this complaint, i.e., from 05.01.2009 within a period of two months from today, failing which interest @ 12% per annum shall be payable by the opponent insurance company to the complainant from the date of filing of the complaint, i.e., from 05.01.2009 till realisation.
Opponent insurance company is also directed to pay to the complainant a sum of Rs.2,50,000/- as compensation for trauma and mental agony.
Opponent insurance company is directed to pay to the complainant a sum of Rs.35,000/- as costs of this complaint".
Hence, the present appeal.
Heard the learned counsel for both the parties and perused the record. Learned counsel for the appellant has stated that allegedly the DLA had fallen while climbing the icy Kailash parvat on 05.09.2007 and he was brought to the Nanavati Hospital on 06.09.2007. A certificate has been given by the Nanavati Hospital on 06.09.2007 which reads as under:
TOWHOMSOEVER IT MAY CONCERN
This is regarding Mr Harish Ramchandani, 64 years old male.
As history given by the patient and his relatives, he is a k/c/o diabetes and hypertensive and _____. He was in the Mansarovar few days back where he had exposure and cold climate and water. There he developed cyanosis c inability to move his ® leg associated c pain 5-6 days back c shortness of breath and facial swelling and puffiness for that he went to the Kathmandu at Norvic Escort International Hospital. He has been investigated over there where the patient count - 1,28,000, BT - 2'30 s, CT - 9 min, Hb - 12.3, TLC-11600, ESR - 32, RBS - 126, Urea - 177, Creatinine - 7.8, Sodium - 13, Potassium - 5 (ov/7/07)
Arterial Doppler (04/09/07) - Acute thrombosis of popliteal anterior and posterior hibcal arteries (o) lower limb. There is absent color flowin mid/ distal anterior hbial artery of (L) Lower Limb monophere flow in primial anterial hbial artery. He advised amputation of (R ) lower limb which is gangreneous in Norvic Escort Hospital. He refused for operation and shifted to Bombay with some medication".
From the above certificate it will be seen that nothing has been mentioned about the fall of the DLA on icy kailash parvat. The insured was taken to Norvic Escort International Hospital at Nepal, Kathmandu. However, no record of treatment of that hospital or medical examination papers have been filed by the complainant in this regard to verify whether there was any fall suffered by the DLA or not. This was a crucial evidence which could have established whether any accident was suffered by the DLA. In the absence of any medical record from the Norvic Escort International Hospital in Nepal or any other record of treatment undertaken by the DLA, the incident of accidental fall cannot be established. The State Commission has wrongly attributed the death of the DLA on account of the alleged accident. The fact is that the DLA was suffering from Diabetes and High Blood Pressure for about 10 years as given in the discharge summary of Nanavati Hospital. The same is being corroborated by the certificate dated 06.09.2007 which mentions that the patient and his relatives had informed that the patient is a known case of diabetes Mellitus. Thus it is clear that the DLA had suppressed the information in respect of his pre-existing disease of diabetes Mellitus. This non-disclosure becomes more serious as death has happened due to gangrene as alleged by the complainant, though, there is no such evidence filed by the complainant. The DLA was discharged from the Nanavati Hospital on 02.10.2007 and was again admitted to Hinduja Hospital on 15.10.1007 and he was discharged from the Hinduja Hospital on 22.10.2007. This clearly means that he had recovered after the amputation from the Nanavati Hospital by 02.10.2007, and again he was admitted with certain complications in the Hinduja Hospital and he was their only for seven days and thereafter he was discharged. The DLA suffered mainly due to diabetes mellitus as gangrene could develop in a diabetic person fast and easily. Firstly, there is no proof that the DLA died due to gangrene which can be associated with the alleged fall of DLA at Kailash Manasarover. Obviously, the DLA was not suffering from gangrene or its effects after amputation was done. The DLA was finally discharged from the Hinduja Hospital on 22.10.2007. The DLA had died on 03.12.2007 and this means that from 22.10.2007 till his death, the DLA was not suffering from gangrene. Gangrene in fact was a complication developed in the body of DLA due to diabetes and hypertension, therefore, his death can be either due to some other reason/ disease or even if it was caused due to other complications having been developed from gangrene, none of the reasons seems to be related to the alleged accident. Thus the claim of the complainant is not payable as it has not been caused by any accident as no proof has been filed for the accident and on account of the pre-existing disease, the DLA suffered from gangrene and his leg was amputated and finally the DLA expired after about two months after having been discharged after amputation.
On the other hand, the learned counsel for the respondent/ complainant has stated that one of the family members has filed an affidavit indicating the facts and circumstances of the case. It was further stated that if his hands and legs are exposed to severe cold then that would also be an accident. Photographs have been filed showing the exposure of hands and legs of the deceased. The insurance company has not filed the copies of the proposal form of all these policies. Thus, on what basis, the insurance company alleged that the deceased has suppressed information in respect of the disease of diabetes. The State Commission has considered all the aspects and has considered all the objections raised by the insurance company but has found them frivolous and untenable. Learned counsel for the respondent complainant has stated that though in the certificate dated 06.09.2007 given by the Nanavati Hospital, there is no mention of fall of the deceased at Kailash Paravat but, another certificate dated 05.07.2008 has been issued by the same hospital wherein it is mentioned that the deceased had history of fall at Kailash Parvat. The said certificate issued by the Nanavati Hospital reads as under:
"This is to certify that:
65 year old male Mr Harish J Ramchandani was admitted here on 06.09.2007 with alleged history of fall at Kailash Parvat on religious pilgrimage with chief complaints of severe pain in both the lower limbs. Since fall, patient had acute discoloration of Rt Lower Limb.
Clinically, patient had ischemic changes of Rt Lower Limb with compromised vascularity and absent pt dorslis pelvis pulsatin with reduced sanction over, rt lower limb due to fall leading to sudden exposure to extreme of cold temperature. Clinical findings were confirmed by Angiography and other investigations. Patient had to undergo Right side above knee amputation in too stage surgery which lead to total permanent disability. Left lower limb was managed conservatively. Patient was discharged on 02.10.2007".
I have carefully considered the arguments advanced by the learned counsel for the parties and examined the material on record. All the policies taken by the deceased were personal accident policies and the accident at any place was covered under them. The important question to be answered in the present appeal is whether disability or death was caused due to any accident or not. It is the case of the complainant that the deceased went to Kailash Mansarover and he fell down somewhere, which resulted in the exposure of his hands and legs due to extreme cold prevailing there and which resulted into the development of gangrene in his right lower limb and ultimately the leg was amputated. Further complications led to the death of the insured. The complainant has not filed any medical treatment papers of Norvic Escort Hospital, Kathamandu, Nepal. Those treatment papers would have provided the evidence to prove that the deceased had a fall resulting into exposure to extreme cold. The certificate dated 05.07.2008 given by the Nanavati Hospital is a subsequent certificate which must have been given at the request of the complainant clearly mentioning the fall of the deceased at Kailash Parvat. The first certificate issued by the Nanavati Hospital dated 06.09.2007 does not indicate anything in respect of the fall of the deceased at Kailash Parvat. This certificate clearly mentions that the patient was having problem in his leg since 5-6 days back, i.e., since 1st or 2nd September 2007 and this certificate also mentions that he was advised amputation of his right lower limb in Norvic Escort International Hospital at Kathamandu. However, he preferred to get himself shifted to Mumbai for further treatment. The assertion of the complainant that the insured had a fall on 05.09.2007 is falsified from this certificate as this certificate reveals that the trouble started on 1st or 2nd September 2007 and he took the treatment at Norivc Escort International Hospital at Kathamandu, Nepal. It seems that in order to get the insurance claim, certain material facts have been suppressed by the complainant. Clearly, the details of the activities from 1st to 5th September 2007 at Kathamandu could have given an insight into the whole case and would have helped in deciding the present complaint particularly, whether the amputation of the right lower limb and consequently the death of the insured was a consequence of some accident. The fact that insured was advised amputation of right lower limb at Norvic Escort International Hospital at Kathamandu, Nepal itself, reveals that the insured was suffering from diabetes for a long time. The discharge summary of Hinduja hospital also does not mention anything about the accident in Nepal. Clearly, the complainant has procured another certificate from Nanavati Hospital dated 05.07.2008, wherein the hospital has recorded the history of fall of insured at Kailash Parvat resulting in exposure to extreme cold. This document seems to have been given by the hospital only on the basis of whatever was told by the complainant or the relatives of the deceased to the hospital authorities which is contradictory to the information given by the insured and his relatives at the time of admission to Nanavati Hospital as mentioned in the certificate dated 05.09.2007 of the hospital. This certificate does not have more value than the statement of the complainant.
In the present case, two aspects are involved. The first is with regard to suppressing information about the existing disease of diabetes and the second is regarding the accident. The fact is that the amputation of right lower limb was advised even before the insured was shifted to Nanavati Hospital due to gangrene. The pre-existing disease of diabetes is self-evident. However, as no proposal form has been filed by the insurance company, it cannot be said that the insured did not provide information about his disease in the proposal form. Therefore, this allegation of the insurance company cannot be sustained.
The next point is about the accident. From the above examination, I am of the view, that no proof has been filed by the complainant to establish the factum of an accident in the present case, rather, there are certain facts which prove that the complainant has not come with clean hands to file the present complaint. It seems that purposely, no record of treatment at Norvic Escort International Hospital, Kathamandu, Nepal has been filed so that the real initial position could not be known to the consumer forum. The complainant has stated that the insured had fallen on 05.09.2007, whereas the certificate dated 05.09.2007 clearly states that the insured started suffering from 1st to 2nd September 2007 as examined earlier. As the complainant has not come with clean hands, the complainant may not be entitled for any relief as held by the Hon'ble Supreme Court in the case of Tata Motors Ltd. & anr. Vs. Hazoor Maharaj Baba Des Rajji Chela Baba Dewa Singhji (Radha Swami), 2013 SCC ONLine NCDRC 883 as under:-
"15. In the light of above observations, we find that as complainant did not remain consumer after sale of vehicle and he has sold the vehicle without permission of the District Forum and has suppressed this fact and has not approached the courts with clean hands, complaint is liable to be dismissed and revision petition is to be allowed." .
It is true that the right lower limb of the insured was amputated and finally due to other complications the insured died on 03.12.2007, but the present policies are in respect of personal accident and these will be attracted only when death or permanent disability has been caused due to accident. In the facts and circumstances of the present case, the accident has not been proved and therefore, insurance claims under the policies are not payable.
Based on the above discussion, I find merit in the present appeal and accordingly, the appeal no.1456 of 2014 is allowed and the order of the State Commission dated 13.10.2014 is set aside and the complaint is dismissed.