UNITED INDIA INSURANCE CO. LTD. vs ALKA MAHESHWARI W/O LATE BHAGWAN SAHAI

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 12.01.2016, passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (hereinafter referred to as "the State Commission") in First Appeal No. 177/2015, United India Insurance Co. Ltd. vs. Smt. Alka Maheshwari, vide which, while dismissing the appeal, the order passed by the District Consumer Disputes Redressal Forum, Jaipur, dated 13.01.2015, in Consumer Complaint No. 1060/2012, filed by the present respondent, allowing the said complaint, was upheld.

The facts of the case are that the deceased Bhagwan Sahai Maheshwari, his wife and complainant Smt. Alka Maheshwari and their two daughters - Kavita and Komal were insured under the Individual Personal Accident Policy, issued by the opposite party (OP) United India Insurance Co. Ltd. for the period from 01.02.2007 to 21.01.2008. The said policy was continuously being renewed and the cumulative bonus and other benefits were regularly being added to the same. The accidental death risk was covered for a sum insured of Rs. 5,35,000/-, in which the basic sum insured was Rs. 4,00,000/- and cumulative bonus was Rs. 1,35,000/-. It is stated in the memo of Revision Petition, filed by the Insurance Company, that on 05.07.2007, when the deceased, after waking up from the bed, went to the bathroom, he suddenly fell on the floor. The blood started oozing out from his ears and nose and thereafter, he vomited. He was rushed to a nearby hospital, where Dr. Atul Saxena of Government Hospital, provided him First-aid and referred him to the SMS Hospital, Jaipur. The deceased could not be admitted at that hospital due to non-availability of beds in the ICU at that time. He was then taken to S. K. Soni hospital, but he succumbed to his injuries, before he reached that hospital.

The version given in the consumer complaint filed by the wife of the deceased, Alka Maheshwari says that on 05.07.2007, when he went to the bathroom, he suddenly slipped, dashed against the wall and fell on the floor, due to which he sustained grievous internal injuries. The case of the complainant, therefore, is that it is a case of accident, as the deceased slipped in the bathroom and hence, he was entitled to get the benefits under the policy. The complainant stated that the insured was not suffering from any disease since the last ten years. However, the case of the petitioner Insurance Company is that Bhagwan Sahai Maheshwari was suffering from high blood pressure, which resulted in brainstem hematoma, as confirmed in the report of the investigator and hence, he had not died due to any accident. The claim under the policy was, therefore, not payable.

After the fall, the deceased was taken to a Government Hospital for treatment, where the medical officer Dr. Atul Saxena gave him First-aid and referred him to SMS Hospital, Jaipur for further treatment. It was recorded by the said Dr. Atul Saxena that there was no external visible injury seen on his body. On the other hand, Dr. Ramesh Vijay, a consultant Orthopedic Surgeon and panel doctor of the Insurance Company stated in his report dated 28.03.2008, i.e. after 8-9 months of the incident, that there was no external injury on the deceased, there was no concussion and extradural and intradural hematoma to any other region of the brain. The said doctor opined that the deceased had brainstem bleeding first, leading to loss of consciousness and fall. The proximate cause of death was brain stem bleed (hypertensive) not due to head injury leading to brainstem heamatoma. The investigator appointed by the Insurance Company also stated that Bhagwan Sahai Maheshwari was an old patient of high blood pressure. He became unconscious on 05.07.2007 due to high blood pressure and started bleeding. The investigator also stated that the bathroom in question was not wet, implying that the deceased could not have slipped and fallen.

The District Forum, after considering the averments of the parties, allowed the consumer complaint vide their order dated 13.01.2015, concluding that the deceased suffered large brainstem hematoma due to fall in the bathroom, resulting in grievous head injury, which could be an internal injury. The District Forum directed that the sum insured under the policy alongwith other benefits, and Rs. 11,000/- as cost of litigation should be paid to the complainant alongwith interest @ 12% per annum from the date of filing the complaint. Being aggrieved against the said order, the OP Insurance Company challenged the same by way of an appeal before the State Commission and the said appeal having been dismissed vide impugned order, the Insurance Company is before this Commission by way of the present Revision Petition.

During hearing, it was contended by the learned counsel for the Insurance Company that the claim under the policy could only be paid, if there had been accident due to external, violent or visible means. In this case, as per the report of Dr. Atul Saxena, a Government doctor, the deceased had a fall on the floor in the bathroom and that he had no external, visible injury. The consumer fora below should have placed reliance on the report filed by Dr. Ramesh Vijay and also of the investigator, which bring out clearly that it was not a case of death due to accident. The learned counsel stated that he was an old case of high blood pressure. The post-mortem had not been conducted on the body of the deceased. Moreover, the report of the CT scan examination was also not on record. The order passed by the consumer fora below could, therefore, not be confirmed by any stretch of imagination.

The learned counsel for the complainant/respondent, however, stated that the panel doctor of the Insurance Company had given his version after a long period of 8-9 months, saying that the bathroom was not wet and hence, there was no possibility of fall due to slip in the said bathroom. The learned counsel further stated that the policy had been taken much before his death and was renewed from time to time, but there had been no mention anywhere that the patient was suffering from blood pressure. In fact, there was no evidence on record to prove that the deceased was suffering from high blood pressure since a long time. The learned counsel has drawn attention to a number of decided cases in support of his arguments, namely Padma Ramanathan vs. National Insurance Co. Ltd., III (2008) CPJ 82 (NC), Deepak Jaiswal vs. Oriental Insurance Co., I (2006) CPJ 29 (NC), Durga Devi vs. National Insurance Co. Ltd., IV (2010) CPJ 34 (NC) etc . The learned counsel stated that the orders passed by the consumer fora below were in accordance with law as narrated in the judgments quoted above. Moreover, keeping in view the concurrent findings of the fora below, there was no case made out for any interference at the stage of exercising the revisional jurisdiction.

On the other hand, the learned counsel for the petitioner has drawn attention to the orders passed by this Commission in Gitaben vs. National Insurance Co. Ltd., IV (2009) CPJ 121, Meena Devi vs. New India Assurance Co. Ltd. & Ors., II (2012) 290 (NC), Resham Devi vs. New India Assurance Co. Ltd. & Anr., II (2014) CPJ 488 (NC) in support of his arguments that the benefits under the policy could be made available only, when evidence was there confirming that the accident was caused by external, violent or visible means.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

The basic issue that merits consideration in the present case is whether the death was caused due to accident when the deceased slipped on the floor of the bathroom, or the deceased had a fall due to any previous disease like hypertension etc. It is to be seen, therefore, whether the death has occurred due to bodily injury, resulting solely and directly from accident or due to some other factor. Clause ''1'' of the Individual Personal Accident Policy says as follows:- "1. If at any time during the currency of this policy the insured shall sustain any bodily injury resulting solely and directly from accident caused by external violent and visible means, then the company shall pay to the insured or his legal personal representative(s) as the case may be the sum or sums hereinafter set forth that is to say:-

................"

It is the own version of the Insurance Company that when the deceased went to the urinal in the bathroom after waking up from bed on 05.07.2007, he suddenly fell on the floor and blood started oozing from his ear and nose and thereafter, he vomited. The report made by Dr. Atul Saxena, the government doctor, who attended to him immediately after the accident, says that it was the case of fall on floor in the bathroom. The said doctor also stated that there was no external, visible injury seen. On the other hand, the panel doctor of the Insurance Company as well as the investigator has stated that he went unconscious due to high blood pressure and started bleeding. A perusal of the material on record, however, does not indicate that there is any evidence in support of the assertion of the Insurance Company that the deceased was an old case of high blood pressure. The case of the complainant is that he was not suffering from any disease during the last ten years. In the absence of any concrete evidence, it cannot, therefore, be believed that the deceased was suffering from high blood pressure. Further, it has been amply made clear in the order passed by this Commission in Padma Ramanathan vs. National Insurance Co. Ltd. (supra) after referring to the law stated in para 578 of Halsbury''s Laws of England that "any cause which is not internal must be external, but this does not mean that the injury must be external; there may be, and often is, nothing externally visible to indicate the presence of internal injury at all". In Deepak Jaiswal vs. Oriental Insurance Company (Supra) also, it was stated as follows:- "10. In our view, undisputedly, the deceased fell down while going to bathroom and from this it cannot be presumed that he fell down because he was suffering from hypertension. A fall can be for various reasons such as slippery surface or missing of a step from the stair. Therefore, it would be difficult to draw an inference that the fall of the insured must be because of hypertension. Further, there is nothing on record to establish that the deceased was having hypertension and that it was known to him before taking the policy. Hence, it can be held that Insurance Company has failed to establish that the assured fell down because of hypertension."

The facts stated in the case quoted above are applicable to a large extent to the present case. As already stated, there is no evidence on record to establish that the deceased was suffering from hypertension and that the same was known to him, before taking the policy. The opinion given by panel doctor of the Insurance Company and the Government doctor that the fall was on account of hypertension, seems to be quite a remote possibility. It is held, therefore, that the State Commission and the District Forum rightly refused to believe the version of the Insurance Company in this regard and held it to be a case of fall by accident. It is quite evident that the patient died shortly after suffering the fall in the bathroom and in fact, he succumbed to his injuries even before reaching the S.K. Soni Hospital, leading to the implication that he did suffer from an internal injury after the fall in the bathroom.

It is a settled legal proposition that the powers under the revisional jurisdiction should be exercised only, if there is a patent jurisdictional error or perversity of justice in the orders passed by the consumer fora below. In the present case, there does not seem to be any justification to alter the concurrent findings recorded by both the consumer fora below. It has been stated by the Hon''ble Supreme Court in the case, Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd., (2011) 11 SCC 269 , that the scope of revision petition in the exercise of revisional jurisdiction is limited and the powers of revision should be used only, if there is a patent error of jurisdiction or miscarriage of justice, by the orders recorded by the consumer fora below.

Based on the discussion above, it is held that there is no illegality, irregularity or jurisdictional error in the orders passed by the consumer fora below and the same are ordered to be confirmed. This Revision Petition, being without any merit, is ordered to be dismissed. There shall be no order as to costs.