IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 14th day of May, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No. 15/2009 (Remanded)
Between:
1. Sreejaya P.S., aged 30 years,
W/o. Jayadevan K.A.,
Kuriyilethu House,
Melukara P.O.,
Kozhencherry Village.
2. Sreejesh. K.J., aged 9 years,
S/o. Jayadevan. K.A.,
--do-- --do—
3. Sreelekshmi, aged 3 years,
D/o. Jayadevan.K.A.,
--do-- --do—
(By Adv.R. Gopikrishnan) .... Complainants.
And:
1. South Malabar Gramin Bank,
Ayroor Branch,
Ayroor South P.O.,
Cherukolpuzha – 689 611,
represented by its Manager.
(By Adv. P. Unnikrishnan)
2. United India Insurance Co. Ltd.,
Divisional Office, P.B. No.5,
Court Road, Manjeri – 676 121,
represented by its Divisional-
Manager.
3. United India Insurance Co. Ltd.,
Branch Office, Pathanamthitta,
represented by its Branch Manager.
(By Adv. Mohammed Mustapha) .... Opposite parties.
ORDER
Sri. Jacob Stephen (President):
The complainants have filed this complaint against the opposite parties for getting a relief from the Forum.
2. The brief facts in the complaint is as follows: The complainants are the legal heirs of deceased K.A. Jayadevan being the wife and children of the deceased. The complainants 2 and 3 are minors and they are represented by the 1st complainant. The deceased Jayadevan had availed a loan of `1,50,000 from the 1st opposite party and the 2nd and 3rd opposite parties issued an insurance policy in the name of the complainant vide policy No.101000/46/06/39/00000641 in connection with the loan transaction. While so, the said Jayadevan accidentally fell down from his bed on 20.06.2007 and suffered serious head injury. Immediately he was taken to Poyyanil Hospital, Kozhencherry and thereafter he was shifted to Pushpagiri Medical College Hospital, Thiruvalla for better treatment and he was under treatment there till 05.07.2007. But unfortunately he died on 05.07.2007 at Pushpagiri Hospital due to his injuries. After the death of said Jayadevan the 1st complainant approached the 1st opposite party and requested them to do the needful for realizing the insurance amount from the 2nd and 3rd opposite party for closing the loan account of the deceased Jayadevan. The 1st complainant also submitted the relevant documents for getting the insurance claim before the 1st opposite party. But later, the 1st opposite party intimated the complainant that the claim was repudiated by the 2nd and 3rd opposite party. As per the terms and conditions of the policy, 2nd and 3rd opposite parties are liable to pay the insurance amount for closing the outstanding loan of the deceased in the 1st opposite party’s bank. The above said repudiation is an illegal and is a clear deficiency in service which caused mental agony and financial loss to the complainant and the 2nd and 3rd opposite parties are liable to the complainant for the same. Hence this complaint for the realization of an amount of ` 1,44,005, the remaining dues in the loan account as on 11.09.2007 from the 2nd opposite party along with compensation of ` 25,000 and cost of this proceedings.
3. The 1st opposite party filed their version with the following contentions:- According to the 1st opposite party, the said policy was given by the 2nd and 3rd opposite parties and they are the necessary parties for allowing or disallowing the claim of the complainant. But the 2nd and 3rd opposite parties repudiated the claim of the complainant for the reason that the death of the policy holder is due to medical negligence and it is not an accidental death. There is no hiring of service by the complainant from the 1st opposite party in disbursing the policy and there is no deficiency of service from their part. With the above contentions, 1st opposite party prays for the dismissal of the complaint.
4. 2nd and 3rd opposite parties filed a common version with the following contentions:- They admitted the issuance of the policy, validity of the policy and the death of the deceased. According to them, the policy covers only accidental death as per the terms and conditions of the said policy. But the cause of death of the policy holder as per the post mortem report is due to the surgical injury over the liver of the deceased and hence it is not an accidental death and the death is due to medical negligence. Since the complainants have already filed a complaint before this Forum against the concerned hospital authorities for compensation on the ground of medical negligence. In the circumstances, they are not liable to pay the claim amount to the complainants as they have not committed any deficiency in service.
5. On the basis of the complaint and the versions, this Forum had taken evidence on an earlier occasion which consists of oral testimony of PW1 based on the proof affidavit of the 1st complainant and the proof affidavit of 1st opposite party and 2nd and 3rd opposite parties and Exts.A1 and B1 to B4. After hearing the parties and considering the available evidence, this Forum allowed the complaint against opposite parties 2 and 3.
6. Being aggrieved by the order of this Forum, opposite parties 2 and 3 filed an Appeal before the Hon’ble State Commission as Appeal No.72/2011. In the said Appeal the Hon’ble State Commission set aside the order of this Forum and remanded the matter for fresh disposal with a direction to clarify the question as to how surgical injury to the liver was sustained while undergoing treatment for head injury with the help of the treatment records of the deceased to be produced by the parties, as no treatment records are found in the evidence.
7. On getting the LCR this Forum issued notice to the parties and they entered appearance. On appearance, the complainant filed a petition as I.A.02/2010 for summoning the doctor who had treated the deceased from 20.06.2007 to 05.07.2007 at Pushpagiri Hospital with a prayer for a direction for producing the concerned treatment records of the deceased. That petition was allowed and as per the direction of this Forum, the said doctor appeared with the documents called for and he was examined as PW1 and the documents brought were marked as Exts.A2 and A3. Ext.A2 is the photocopy of I.P record of the deceased and Ext.A3 is the photocopy of O.P records of the deceased. As per PW2, the originals of Exts.A2 and A3 are with Aranmula Police and the documents produced ate the photocopy taken and kept at the hospital before handing over the original to the police. He further deposed as follows in chief examination. “Exts.A2 and A3 tcJ-IÄ {]Imcw patient-s\ head injury ¡mWv NnIn-Õn-¨n-«p-Å-Xv. Ext.A2 {]Imcw deceasedþ\v liver injury DÅ-Xmbn ImWp-¶n-Ã. Liver injuryþ¡v R§Ä NnInÕ \S-¯n-bn-«n-Ã. acWw R§-fpsS Bip-]-{Xn-bn h¨m-bn-cp-¶p. Severe head injury-bpsS `mK-ambn Dmb complications BWv ac-W-Im-cWw”. After the chief examination, he answered as follows for a question put by this Forum, “deceased-sâ NnInÕbpsS `mKambn chest-sâ right sideþ tube insert sN¿m³ Hcp hole C«n-cp¶p (CQ). PW2 was not cross-examined by the opposite parties.
8. Opposite parties did not adduced any further evidence after the remand. After closure of evidence, both sides were heard.
9. In the light of the contentions and arguments raised by the parties, the question to be decided is whether the complainants are entitled to get the insurance claim as claimed by the complainants. According to the complainants, they are entitled to get the policy benefits as death of the deceased is an accidental death whereas the contention of the insurance company is that the death of the deceased is not an accidental death and it caused due to the surgical injury sustained to the liver of the deceased which is not an accidental death.
10. Anyhow, there is no dispute with regard to the death of the deceased. As per Ext.A2 and A3, the deceased was under the treatment at Pushpagiri Hospital, Thiruvalla as I.P from 20.06.2007 to 05.07.2007 for the head injury sustained to the deceased, and Ext.A2 treatment record reveals that the treatment of the deceased includes the surgery of his head. As per the deposition of PW2 the death was due to the seriousness of the head injury. But as per Ext.B2 post mortem report, the cause of death was due to the surgical injury sustained to the liver of the deceased. It was not evident at the earlier stage as to how the surgical injury to the liver was sustained to the deceased while undergoing treatment for head injury. But now it is evident from the deposition of PW2 that a hole was put at the right side of the chest of the deceased for inserting a tube as part of the treatment. So the doubts and confusions in this regard is cleared from the deposition of PW2. So it is clear that the injury on the liver of the deceased was from the hands of the doctors who treated the deceased for head injury which resulted in the death of the deceased. So the death of the deceased cannot be considered as a natural death, suicide or as a murder. It is an unexpected death occurred beyond the control of the deceased. As far as the complainants are concerned, the death of the deceased is an unexpected death. Therefore and in the facts, circumstances and the available evidence clearly shows that the death of the deceased is an accidental death and as per the terms and conditions of the policy in question, opposite parties 2 and 3 are duty bound to allow the complainants claim for the policy benefits. Hence we find that this complaint is allowable against opposite parties 2 and 3.
11. In the result, this complaint is allowed, thereby the opposite parties 2 and 3 are directed to clear the outstanding dues in the loan account of the deceased Jayadevan with the 1st opposite party along with compensation of ` 10,000 (Rupees Ten Thousand only) and cost of ` 2,500 (Rupees Two Thousand Five hundred only) to the complainants within 15 days from the date of receipt of this order, failing which the complainants are allowed to realize the entire outstanding dues in the loan account of the deceased with compensation and cost ordered herein above along with 12% interest per annum from today till the realization of the whole amount.
Declared in the Open Forum on this the 14th day of May, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainants:
PW1 : Sreejaya. P.S.
PW2 : Dr. Raju Paul (after remand)
Exhibits marked on the side of the complainants:
A1 : Loan pass book issued by the first opposite party in the name
of the deceased Jayadevan.
A2 : Photocopy of the O.P. record of the deceased (after remand)
A3 : Photocopy of the I.P. record of the deceased (after remand)
Witness examined on the side of the opposite parties : Nil.
Exhibits marked on the side of the opposite parties:
B1 : Photocopy of the policy certificate in the name of the deceased
Jayadevan issued by the second and third opposite parties.
(before remand)
B2 : Photocopy of the Postmortem Certificate dated 06.07.2007
issued by the District Police Surgeon, Pathanamthitta.
(before remand)
B3 : Photocopy of the complaint in C.C. No. 9/09 on the file of the
CDRF, Pathanamthitta (before remand)
B4 : Original of Ext.B1 attached with policy conditions
(before remand).
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Sreejaya P.S., Kuriyilethu House, Melukara P.O.,
Kozhencherry Village.
(2) Manager, South Malabar Gramin Bank, Ayroor Branch,
Ayroor South P.O., Cherukolpuzha – 689 611.
(3) Divisional Manager, United India Insurance Co. Ltd.,Divisional Office, P.B. No.5, Court Road, Manjeri – 676 121.
(4) Branch Manager, United India Insurance Co. Ltd., Branch
Office, Pathanamthitta.
(5) The Stock File.
