SUMAN GUPTA vs ORIENTAL INSURANCE COMPANY LIMITED

FACTS from which this complaint enacts are detailed below.

COMPLAINANT''s husband Shri Vijay Kumar Gupta was a practising Advocate at Jammu, secured a Janta Personal Accident Policy from the Oriental Insurance Company Limited, Branch Office-II, 1st Floor, Town Hall Building, Jammu through its Branch Manager on 13.3.1997 for Rs. 5.00 lacs. COMPLAINANT is his nominee in the said policy. Period of Insurance admittedly was from 13.3.1997 to 12.3.2009. The case of complainant is that her husband on 18.6.1999 at about 5.45 a.m. while coming out of the bath room had a fall. He suffered serious fatal injury as a result of fall and died instantaneously. A doctor of near Nursing Home was called who declared her husband dead. Dr. Vishav Gupta who examined the deceased issued certificate on the same day which is Annexure-B. According to the complainant he had no male member in the house. Her father-in-law and brother-in-law were in Srinagar. They joined the funeral at the final stage. In the Seva Samiti, Jammu where the dead body was cremated recorded the cause of death as natural and they forwarded such certificate to Jammu Municipality also where Sub-Registrar Vital (Statistics) also recorded the case of death as natural. After some time when it was known to her that the cause of death was written as natural she apprised the Seva Samiti, Jammu who corrected their records by adding the words UN-NATURAL and forwarded the copy of the same to Jammu Municipality to whom complainant also approached with an application to change the records from NATURAL and UNNATURAL death. The complainant raised the claim with O.P. and gave a written application to O.P. 2 that she may be exempted from submitting post-mortem report which was not done in the case. According to the complainant they exempted her and did not press for such certificate when she prayed for the settlement of the claim after 2 months, she was served a finding of the O.P. that the case was of natural death, so insurance claim could not be entertained. This gave the cause of action to the complainant to file the complaint before the Commission. O.Ps. were summoned who filed their written version wherein they alleged that it was the case of natural death. As it is the complainant and his relative who is serving as Development Officer in the Insurance Company have concocted case and tried it to give a turn from natural death to unnatural death just to grab the public money. In the written version it was stressed that Seva Samiti, Jammu in the ordinary course has recorded the cause of death as NATURAL which was got recorded by the complainant side when after some time they became conscious they tried to get the record of Municipality and Seva Samiti record changed by inserting words UNNATURAL to the NATURAL which became UNNATURAL but the Municipality stuck to their own certificate which reveals that the cause of death was natural. According to the written version it further reveals that the certificate which is issued by the Doctor was a Gynaecologist and ENT Specialist. He had no experience about the Neurology. He was their own person who tried to help the complainant by giving a wrong certificate. It has further been alleged that the O.P. deputed Col. R.M. Khanna to investigate the matter regarding the cause of death who also reported the cause of death was NATURAL. It has further been alleged that production of post-mortem certificate was not exempted by the Company though they have admitted that there is an exemption clause in the Insurance Contract.

Parties have led their evidence. Complainant has examined herself, Mohammed Anwar, Officer of the Municipality, Dr. Vishav Gupta, Dewan Chand, Record Keeper of Municipality, Avinash Gupta, Anil Mahajan. O.P. has examined Vinod Sharma, JK Seva Samiti, Col. R.M. Khanna, Surveyor, A.K. Bhagat, Divisional Manager.

HEARD learned Counsels for the parties. Learned Counsel for the complainant has contended that the deceased died due to a FALL which caused him head injury. Death was UNNATURAL and thus the claim is maintainable against the O.P. O.P. has refuted these arguments. We have perused the record carefully. The only question involved is whether the death of the deceased could be said to be NATURAL OR UNNATURAL. This involves matter of fact about which we have to weigh the evidence of both sides.

LEARNED Counsel for O.P. wholly and solely depends on a fact that the case was recorded as a natural death by the Seva Samiti Jammu as recorded in an ordinary course but later on after the manipulation record was got changed by inserting the word UN and changed the natural into UNNATURAL death. Normally the argument of the learned Counsel for the O.P. is that the certificate issued by the Doctor on 18.6.1999 is not credible because this certificate is issued by a Gyanaeocogist and ENT Doctor who has no experience in the field of Neurology. Taking the stock of the things into consideration we are of the view that the balance of the evidence goes in the favour of complainant in this case on various grounds. Case of the complainant is that her husband in the morning hours at 5.45 a.m. while coming out from bath room had a FALL. It was found that the deceased was bleeding from nose and both ears. No male member was there. She called Dr. Vishav Gupta who has given a certificate wherein he has stated that he visited the deceased at 6 a.m. He was found dead. He had bleeding from nose and both ears, right black eye and a haematoma over right tample region was there. There was alleged history of FALL and most probably the case of death was head injury. Doctor in his statement when he was cross-examined has stuck to his certificate and has ruled out that the blood was oozing because of blood pressure. He has in his statement categorically deposed that he can handle any emergency case. Basically he is MBBS Doctor and specialized in Gynaecology & ENT. According to him in the case of natural death no haematoma is caused. This haematoma is caused only in accidental case where the cause is FALL and INJURY. According to him haematoma is itself on injury. According to him, deceased had received head injury because of the FALL. According to him death was not due to blood pressure but blood pressure can cause a FALL and HEAD INJURY. He has further deposed that he does not know the cause of injury. We cannot outrightly reject this certificate and statement of the Doctor. Day in and day out we see in such emergency it is only a nearer Doctor who is being called to attend the patient urgently. It is not a case with individual only it is why Emergency Ward and Casualty Wards are established in all the hospitals, whether private or Government. In an emergency one cannot search for a specialized Doctor but will always prefer a Doctor who is readily available at that moment. This evidence of the Doctor is supported by other evidence also. Complainant has supported this evidence. She was the first person who was present at the time of a FALL than other persons assembled there among whom Sameer Mahajan who is the relation of the deceased came on the spot. He also has confirmed that the death was not NATURAL but it was accidental. He is the person who has gone to the Seva Samiti and got the cause of death rectified. Similarly Avinash Gupta who is the neighbour of the complainant also has supported the version of the Doctor. He is the witness who has called Dr. Vishav Gupta who examined the deceased. His statement also has corroborated the story of complainant and the Doctor. Statements of witnesses of Municipality and Seva Samiti have deposed as per record. Mohammed Anwar has stated that Municipality has recorded the cause of death as per report of Seva Samiti. It is also an admitted fact that Sava Samiti issued the first certificate wherein cause of death was stated as NATURAL and thereafter when they were approached by the complainant they rectified and admittedly inserted the word UN and issued the certificate as UNNATURAL death. It has also been admitted that they wrote to the Municipality also about the change of records. This is not a new thing brought to our notice by the O.P. in their written version. Complainant has himself based the complaint on this assertion that the certificate first recorded by the Seva Samiti showed cause of death as NATURAL. In the complaint itself complainant has admitted that they approached the Seva Samiti and got the record changed. Not only this, it is also an admitted fact that in such cases contract of insurance requires a certificate of post-mortem. Complainant had applied to the O.P. that she be exempted from showing the post-mortem certificate because complainant had no male member at the time of the death of her husband she was in a great SHOCK so her husband was not sent for post-mortem. According to her father-in-law and brother-in-law were in Srinagar and they joined the funeral at last stage. It is established from the facts that though no written exemption order was issued by O.P. but after this application they never asked the complainant to produce post-mortem report certificate. Thus impliedly exempted, the complainant for submitting the post-mortem certificate. The only thing on which the O.P. want us to reject the complaint is that the cause of death was first recorded as natural and then it was changed into unnatural death. It is a fact that such circumstances creates suspicion about the actual ground reality but the certificate issued by the Doctor on the same day i.e., 18.6.1999 which is supported by his own statement cannot be brushed aside only on the ground that he was not Neurologist. In such circumstances we cannot rule out that in the ordinary course report was given to the Seva Samiti that the death was natural being a lady when she had come to know about the consequences she has come out with truth and the gound reality that deceased had a fall. We have seen the statement of Mr. Khanna Investigator also. Investigator Mr. Khanna has wholly and solely believed the first report of Seva Samiti which discloses his death as NATURAL and on the certificate of Municipality it is based on that report. Mr. Khanna is basically an Engineer. He has made local enquiries from the residents of area also. According to him on the fateful day deceased got up earlier in the morning and while standing in the house at Balcony, he suddenly fell on the floor and died. So this report also has not ruled out the FALL of the deceased and has thus supported the view of the Doctor regarding the FALL but has not given the reasons as to why disbelieve the Doctor who has deposed that the deceased had received head injury. He had haematoma bleeding from nose and both ears were bleeding. It is very difficult in such circumstances to disbelieve the Doctor and his certificate. We allow the complaint and direct the O.P. to pay Rs. 5.00 lacs as insured amount to the complainant. So far as interest is concerned we see a lapse on the part of the complainant not to get the correct position recorded in the Seva Samiti and in the Municipality which has delayed the process of settlement of claim in time. We, therefore, order that the interest @ 7% p.a. be given to the complainant from the date of complaint. The whole amount be paid to the complainant within a period of six weeks. Copy of this order be given to the parties to be collected by them on their own in person or through their authorized agent. Complaint allowed.