STATE INSURANCE And GPF DEPARTMENT vs MOHINI VIJAY

THIS is opposite party''s appeal from the order dated 23.10.1999 whereby District Forum, Sawai Madhopur allowed respondent''s Complaint No. 164 of 1998 and directed the appellant to pay to the respondent the assured sum of Rs. 2 lakhs in respect to the death of her husband, caused as a result of an injury sustained by him in an accident.

RELEVANT facts are these: Late Shri Badri Narain Vijay, was a Govt. servant posted at the relevant time as an Accountant at the Govt. Hospital at Sawai Madhopur. As a Govt. servant, he was covered under the Group Personal Accident Insurance Scheme of the State Government. Under the said scheme, the insured were entitled to varying amounts for injuries, causing loss of or damage to the specified parts of their bodies, sustained in or by an accident. In the event of death of the insured caused by such injury the nominee was entitled to get Rs. 2 lakhs as assured amount. Smt. Mohini Devi Vijay, the respondent, was the nominee of late Shri Badri Narain Vijay in the policy issued by the appellant to him under the scheme, referred to above. While alighting the bus on 10.4.1996 at about 9.20 a.m., Shri Badri Narain Vijay, the insured, got his great toe of the right foot injured by a nail in the exit. The injury led to his admission to the General Hospital at Sawai Madhopur on 29.4.1996. He was operated upon for his said injury on 4.5.1996 and his great toe along with two adjoining toes were amputated. He was discharged from the Hospital on 5.5.1996. He was, however, referred to S.M.S. (Govt.) Hospital at Jaipur for treatment of gangrene of toes. At S.M.S. Hospital, Jaipur he was treated for gangrene of toes during he period from 30.6.1996 to 15.7.1996. Since he was a diabetic patient suffering from hypertension also, he was treated for those diseases and of the ulcer of foot as well during the aforesaid period.

After having reported of his having been fully and completely cured of his ailment to his employer and having resumed his duties, he filed a claim with the appellant in respect of the foot injury sustained by him in the accident. Such claim was settled at Rs. 14,000/- which the deceased insured received from the appellant in January or February, 1996.

ON 6.2.1997, the insured was again admitted to the General Hospital, Sawai Madhopur for treatment of high blood pressure and breathing difficulty. After his treatment for and having been cured of such disease he was discharged on 10.2.1997. The deceased insured was, however, admitted on 28.5.1997 to the Sawai Madhopur General Hospital for treatment of Pulmonary Edema (fluid in lungs), lung failure and difficulty in breathing. He remained in the hospital upto 30.5.1997 and on 31.5.1997 he was referred to S.M.S. Hospital at Jaipur for treatment. But before he could have been taken to the said hospital, he died on 1.6.1997.

IT is in the above background that the learned District Forum has held that it was due to septicaemia developed as a consequence of the toe injury caused to the deceased in the "accident" that he had died an accidental death entitling the respondent to receive the sum assured under the group personal accident insurance policy. Whereas the appellant has challenged such an approach adopted by the learned District Forum to the facts and circumstances of the case, the learned Counsel has supported the order under appeal. We, however, find substance in the arguments advanced by the learned Counsel for the appellant and in our opinion, the complaint filed by the respondent deserved dismissal for more than one reasons, namely, 1. Clause 6 of the Instruction Booklet in respect of Group Personal Accident Insurance Policy, as supplied to us reads as under: (6) "Hindi matter omitted" It needs to be noted that what is required for the success of a death claim under the scheme on the ground of having sustained an injury in an accident and such injury directly leading to the death of the insured, is that the source of causing the injury must be "external", "violent" and "visible". It is not every type of injury which may be caused to the insured and lead to his death. It should have been necessarily caused to him by external, violent and visible sources. If the element of "violence" is missing in an injury it would not partake the character of an injury caused in or by an "accident" though it might have been caused "accidentally". It may be regarded as an injury accidentally caused in an "incident". Although the common ingredient of an "incident" and an "accident" is the happening of an event. Such event may happen by chance in which case we would call such injury to have been caused accidentally. One may cause an incisor to oneself while shaving or cutting nails with a nail cutter or even by a fall from his cot or other articles, but since the element of "violence" would be missing in the causing of such injuries in that manner those may be called to have been caused accidentally in an "incident" and not in an "accident". His body might have come in a contact with an external and visible object but if the element of violence was missing in such contact, the injury caused would be considered as having been caused in an incident. The difference between a ("Hindi matter omitted") and ("Hindi matter omitted") is required to be taken note of in appreciating the claim of the respondent in this case. Undisputedly the deceased insured happened to sustain an injury to his big toe of right foot while alighting the bus. Injury to him was no doubt caused by an external and visible source but the requirement of "violence" in his case was missing. It was by chance only that he got his big-toe injured by some projecting nail on the floor or wall of the exit. The injury was no doubt caused accidentally to him but not in or by an "accident" ("Hindi matter omitted") but in an "incident" ("Hindi matter omitted"). On the basis of such injury the deceased was not entitled for compensation for loss of his big toe and other two toes caused by amputation or for death even if his death be assumed to have been the direct result of the injury in question. 2. The argument that the appellant had itself considered the injury in question as having been caused to the insured in an "accident" and it was on such basis a compensation of Rs. 14,000/- was paid to him for loss of his three toes of right foot, would not justify further payment of any compensation for his death which took place after the expiry of 14 months and not as a result of the injury but as a result of other diseases, the insured was suffering from. The deceased insured had sustained the injury on 10.4.1996, was admitted to the General Hospital, Sawai Madhopur on 29.4.1996, was operated upon and his three toes amputated on 4.5.1996, was discharged from the hospital on 5.5.1996 and received post-operation treatment at his residence till 30.6.1996 whereafter he was treated for gangrene of his toes at the S.M.S. Hospital, Jaipur during the period from 30.6.1996 to 15.7.1996. During that period, he was side-by-side treated for other ailment namely acute diabetes and hypertension. Thereafter till 6.2.1997 he had remained a healthy man. During the period of his regained health, he did not only join his duties in the Hospital but also received compensation for the loss of his three toes as a result of the injuries sustained by him. His submitting the claim, receiving and accepting the claim amount, clearly speak of the fact that he did not apprehend the possibility of his death from the foot injury which had been fully cured. Subsequent death of the injured on 1.6.1997 caused by pulmonary edema cannot be directly or even proximately related to the injury in question. After having received a sum of Rs. 14,000/- as compensation for loss of his toes due to the consequences of the injury in question (which injury is not found to have been caused to him in or by an accident and hence payment of any amount by way of compensation on that ground was not admissible to him) in full and final settlement of his claim in the facts and circumstances of the case, it was not open to the respondent to claim again compensation for death of the deceased as a consequence of the same injury, when death had not been caused to the deceased as a consequence of such injury. 3. The argument of the learned Counsel for the respondent that "many diverse medical and surgical conditions are associated with pulmonary edema that appears to be due not to primary alteration in startling forces but rather to damage of the alveolar-capillary membrance and these conditions include acute pulmonary infection and pulmonary effects of gram-negative septicaemia and non-thoracie trauma as well as any condition associated with disseminated intra-vascular coagulation and his reliance upon the comments made in "Pulmonary Edema: Cardiogenic and Non-cardiogenic" by Roland H Ingram and upon the statements of Dr. Bharat Lal Mathuria and Dr. Rajendra Kumar Jain does not impress us. The comments made by the learned authors of the aforementioned booklet may be true but those make no guide to us to declare that the death of the deceased insured was the direct or proximate result or consequence of the possible septicaemia caused by his foot injury after about 14 months of his sustaining such an injury. In fact the evidence led by Dr. Mathuria and Dr. Jain negates such an inference in favour of the respondent. Dr. Jain has stated in his examination-in-chief that the deceased insured was admitted to the General Hospital, Sawai Madhopur on 28.5.1997 for treatment of ''Pulmonary Edema'' and fever and that the cause of pulmonary edema possibly or probably was septicaemia or infection. In cross-examination, he admitted that in none of the documents, as prepared by him in the course of treatment of those diseases of the deceased by him, even a remote reference was made to his foot injury of possibility of septicaemia or infection caused by his foot injury. He specifically stated that at the time of his admission, the deceased insured did not complaint of any pain in his amputated toes or in any of the feet and that the medicines prescribed for and administered to the deceased by him related to the treatment of his ailment, mentioned above.

SIMILARLY Dr. Mathuria has stated that on 30.5.1997 the deceased had been discharged from the hospital on finding his condition satisfactory. But on 31.5.1997, he examined the deceased at his residence and noted that though his old diseases namely diabetes and blood pressure were under control yet he was having swollen lungs and facing much difficulty in breathing. He had, therefore, suspected septicaemia caused by his foot injury and accodingly referred him to S.M.S. Hospital at Jaipur for treatment. In cross-examination, he admitted that in the documents prepared by his colleagues in respect to the treatment of his injuries, there was no mention of the possibility of septicaemia having been caused by his foot injury. He further stated that looking to the fact that antibiotic medicines were prescribed by his colleagues for his treatment, he had formed the opinion that there might be the possibility of septicaemia, which possibility was though remote in his case. He admitted that he was not sure of septicaemia in the present case.

THE above discussion is, we think, sufficient enough to conclude that the injury caused to the deceased did not directly or proximately cause his death. That being so, the respondent was not justified in claiming any compensation with regard to his death. THE appellant did not render deficient service to her by repudiating her claim. In the result, the impugned order is set aside and the appeal allowed with cost on parties throughout. The sum of Rs. 14,000/- shall, however, not be paid by the respondent. Appeal allowed.