DR. S. M. KANTIKAR, MEMBER 1. This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 12.8.2008 passed in Appeal No. 42 of 2005 by Delhi State Consumer Disputes Redressal Commission (in short, ‘the State Commission’) whereby the appeal of the complainant was allowed and the order of District Consumer Disputes Redressal Forum (in short, ‘the District Forum’) dismissing the complaint, was set aside. 2. The brief facts are that the complainant’s father, H. D. Bansal, since deceased, got himself insured under Personal Accident Guard Plan from Tata AIG Insurance Co. Ltd. (OP-2) through Satin Insurance Consultant/OP-1 for Rs. 10 lakhs. The said policy was valid from 26.9.2002 to 25.9.2003. During the subsistence of the insurance policy, his father slipped in the bathroom and sustained head injury. He was taken to Dr. RML Hospital, then to Sir Ganga Ram Hospital, but due to non-availability of bed, he was shifted to Jeewan Mala Hospital on 20.1.2003, where he was operated, but died on 28.1.2003. According to the treating doctors of the hospital, it was a head injury and was accidental death. Mr. Ashok Kumar, son of the deceased, who was the nominee and beneficiary of the policy, has filed the claim before OP-2/insurance company, but it was repudiated on the ground that it was not an accidental death. Consequently, the complainant filed a complaint under Section 12 of the Consumer Protection Act, 1986 against the OPs before the District Forum claiming insurance amount alongwith 18% interest and costs. 3. The OP in their written version, denied the deficiency in service. OP-1 submitted that it had performed legal obligations and acted as an agent of OP-2. On the other hand, OP-2 filed detailed written statement and rebutted the allegations of the complainant in toto. It was further submitted that this case entails detailed examination and evidence, therefore, Civil court is the competent authority to decide it. The complainant has not filed any medical record of Sir Ganga Ram Hospital or his family doctor regarding fall in the bathroom, which caused death of his father. The complainant had not intimated the claim within seven days of the actual loss. OP had appointed M/s Shubham Associates to investigate the case and also taken an expert opinion from Dr. Sunil Kumar Pandya, a famous Neurologist at Mumbai. Dr.Pandya opined that the deceased had died as a result of brain hemorrhage and the fall appears to be secondary to the rupture of the artery and bleeding into the brain. Similarly, Dr. M. S. Kamath in his report, also opined that it was a brain hemorrhage of non traumatic origin. The another Neuro physician, Dr. Rajeev Anand also gave the same opinion. Therefore, it was not an accidental death as defined under the insurance policy, hence, the claim was rightly repudiated. 4. The District Forum on the basis of pleadings and evidence, dismissed the complaint. Being aggrieved, the complainant approached the State Commission by way of an appeal, which was allowed and the OP-2/insurance company was directed to pay the insured amount of Rs. 10 lakhs alongwith compensation of Rs. 1 lakh towards the mental agony. Being aggrieved, the insurance company/OP-2 filed the instant revision petition. 5. We have heard the learned counsel for the parties. Learned counsel for the petitioner submitted that as per the policy terms and conditions, the death of patient was not accidental. The deceased had initially suffered brain hemorrhage, and thereafter, he fell in the bathroom. Learned counsel for the complainant made his submissions as the pleadings in the complaint. 6. We have perused the medical record, the expert opinion and gave our thoughtful consideration to the arguments advanced by both the parties before us. It is an admitted fact that the deceased had fallen and suffered head injury. As such, the deceased had no history of Diabetes mellitus, Hypertension or Ischaemic heart disease (IHD). He was taken from one hospital to the another hospital in order to get operated on emergency basis. The CT scan was done on 19.1.2003 at Scan Research Institute, attached to Sir Ganga Ram Hospital. CT scan revealed a large right Front-Temporo-Perital haematoma involving the Basal ganglia and Internal capsule with Ventricular break through. Post operative follow up of CT Scan report is reproduced as: “1. A large intracerebral haematoma involving the right temporal, right basal ganglionic and right fronto-parital region with mass affect (including subfalcine and transtentoirla herniatioin). 2. Intraventricular and subarachnoid haemorrhage 3. A haemorrhagic infarct/haemorrhage condusion in the right temporo-parietal region 4. Pneumocephalus” 7. We have perused the Shubham Associates investigation report. It was based on the opinion given by Dr. M. S. Sagar. We have also perused the opinion given by Dr. M. L. Sagar vide dated 1.5.2003. Dr. Sagar is consultant physician and M.D. in medicine. As per his opinion, there was no past history of hypertension, diabetes Mellitus or Coronary Artery Disese (CAD) or history of any seizures (Fits) disorder as the insured was found to have a high blood pressure, after admission in the hospital. It was in all probability due to reactionary to Cerebral Bleed. The relevant paragraph of the opinion is reproduced as below:- “As the available documents do not suggest presence of any disease/illness which may have caused intracerebral bleed. It appears that the insured has had a fall which has led to intracranial haemorrhage and presented with signs of raised intracranial tension – Progressive Loss of Consciousness, vomiting and Hemiplegia. The similar presentation may also be there in cases of spontaneous intracranial haemorrhage secondary to disease –Hypertension, Rupture of Aneurysm etc. It is a case of Head injury with right basal ganglionic bleed with ventricular extension and injuries seems to have been caused due to fall. However, the insured may be asked to submit the Pre and Post operative CT – Head films and reports so that final opinion as regards to the cause of bleed may be taken. It is also suggested that the opinion of a Neurosurgeon may also be sought before final settlement of the claim.” On the basis of Dr. M. S. Sagar’s opinion, the OP took opinion from Neuro Surgeon, Dr. Rajiv Anand. He opined on the basis of records of patient, Mr. H. D. Bansal, as requested by Tata AIG General Insurance Co. Ltd. He opined that “Primary event in this patient seems to be intracerebral bleed and is clearly mentioned in all the CT scan records available. For purposes of interpretion in detail, I agree with the opinion given by Dr. Sunil K. Pandya on 20.7.2003.” 8. We have given our thoughtful consideration to the medical record and three opinions on the file. We have taken references from the standard books of Neurosurgery. The admission record of Dr. RML Hospital clearly mentions about the history of fall in the bathroom on 19.1.2003 at 5.40 p.m. and thereafter, it was followed by slurring of speech and the patient became unconscious. The patient was middle aged patient and the BPrecorded was 190/120 mmHg. There was no history of Diabetes Mellitus, Hypertension, Ischaemic Heart Disease (IHD). Thus, it was diagnosed as Intercranial hematoma. However, the patient left the hospital against medical advice in the night at 9.45 p.m. He was taken to casualty of Sir Ganga Ram Hospital, New Delhi at10.30 p.m. in unconscious state. At Sir Ganga Ram Hospital, he was investigated and was advised admission under Neuro surgery. NCCT-Head showed massive TP right intraparenchymal bleed with ventricular break through, therefore, he was advised for surgical decompression but due to non-availability of vacant bed, he was taken to Jeewan Mala Hospital, New Delhi under care of Dr. S. Mishra on 20.1.2003. The patient was operated there for Right temporoparietal craniotomy with Evacuation of Hematoma. The patient was shifted to ICU for Elective Hyperventilation. Recraniotomy was done on 21.1.2003 with decompression of ICH right basal ganglionic region with residual bleed but on 28.1.2003, the patient had cardiac arrest on 28.01.2003 and despite all resuscitative measures, including CPR etc., the patient had died on 3.45 p.m. 9. The main question revolves is as to whether, there was initial fall and hemorrhage in brain or whether initially, the patient suffered bleeding and thereafter, suffered fall. If we consider initially, there was a bleed, which subsequently cause loss of consciousness and fall but the case papers clearly depicts that there was no past history of diabetes. 10. The main controversy swirls around the question that whether the death of insured was accidental or not. On perusal of medical record, CT scan findings and the operative notes, it is clearly evident that there was intra parenchymal bleed and involving the Basal ganglia and internal capsule with ventricular break through. It means the patient had spontaneous bleeding, initially, which led to formation of clot and subsequently he developed the neurologic signs and fell down in the bathroom. It is also pertinent to note that as stated by the complainant, the patient had slipped on the bathroom floor. There were no injury marks on the body and no bleeding, there was no froth coming out of the mouth. We do not agree with the opinion of Dr. M. S. Sagar that the patient had accidental bleed due to trauma to the head because there was no evidence of any fracture injury to the skull. He also suggested for the opinion of neurosurgeon before final settlement of the claim. In our view, OP had proved that the death was not due to accidental injury with the help of two neurosurgeons and one medico legal expert. 11. In the instant case, two neurosurgeons have opined that it was spontaneous bleed and unrelated to the fall or accident. Even also, as per the policy terms, the Accident means ‘a sudden, unforeseen, uncontrollable and unexpected physical event to the insured Person caused by external, violent and visible means occurring under the circumstances described in a hazard applicable to that person.’ In the instant case, there was no external violent and visible means to cause any accident. 12. On the basis of foregoing discussion, we are of the view that in the instant case, the intracranial hemorrhage was a spontaneous event, which has progressed further, leading to neurological deficit and subsequent fall. It cannot be said to be an accident, as defined in the insurance policy. Thus, the State Commission severally remiss to appreciate this issue and wrongly allowed the claim. Therefore, we set aside the order of the State Commission and allow this revision petition. Consequently, the complaint is hereby dismissed. The parties to bear their own costs. |
