IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 19^th  day of July,  2023

Present: Sri.Manulal.V.S, President

                                             Smt.Bindhu.R, Member

                                                     Sri.K.M.Anto, Member

CC No. 194/2022 (Filed on 16-09-2022)

Complainant                           :         Linsu Mary Thomas,

                                                          W/o. Fr. Moncy P. Chacko,

                                                          Padathukattil House,

                                                          Karakkal P.O.  Thiruvalla

                                                          Now residing in the address

                                                          Linsu Mary Thomas,

                                                          W/o. Late Fr. Moncy P. Chacko,

                                                          Alwathba North Razeen,

                                                          3 St. Lane 3703,

                                                          Alwathba, Abudhabi,

                                                          Alkhatum

                                                          Rep. by the Power of attorney holder

                                                          Fr. K.M. Zachariah,

                                                          S/o. Mathew residing at

                                                          Koodathinkal House,

                                                          Thottakadu P.O.  Thottakadu kara,

                                                          Puthuppally village, Kottayam

                                                  2.     Annete Moncy,

                                                          D/o. Fr. Moncy P. Chacko,

                                                          Padathukattil House,

                                                          Karakkal P.O.  Thiruvalla

                                                          Rep. by Thomas P.T.

                                                          S/o. Thomas,

                                                          Kocheethra house,

                                                          Peringara village, Karackal P.O.      

                                                          Thiruvalla.  

                                                     3.  Aron G. Moncy,

                                                          D/o. Fr. Moncy P. Chacko,

                                                          Padathukattil House,

                                                          Karakkal P.O  Thiruvalla,      

                                                          Rep. by Thomas P.T.,

                                                          S/o. Thomas, Kocheethra house,

                                                          Peringara village,

                                                          Karackal P.O  Thiruvalla.

                                                          (Adv. M.C. Scariah)

                                                                   Vs

Opposite parties        :            1.       Divisional Manger,

                                                          National Insurance Company Ltd.

                                                          Kottayam

                                                2.       Manager,

                                                          National Insurance Company Ltd.

                                                          Thiruvalla Branch,                 

                                                          Thiruvalla.

O R D E R

Sri.Manulal.V.S, President

          The case of the complainant is that he had taken

Crux of the complaint is as follows:

First complainant is the wife and the second and third complainants are the children of the Late FR. Moncy .P. Chacko who died on 9-10-2021 in a road traffic accident occurred near to Changanssery railway over bridge on 9-10-2021.  Fr.Moncy .P. Chacko was driving the car bearing registration no. KA-14- P -9954 which hit on the back of the container lorry having registration number                                 KL-16-M-4432 which was parked at the railway signal Changassery. Immediately Fr. Moncy P.Chacko was taken to Chethippuzaha hospital, but due to the injuries sustained in the accident he died at 1.55 PM on that day itself.

The car involved in the accident was owned by Fr. Mocy P. Chacko and had valid driving license and the said car was validly insured with the opposite parties with policy no. 57060331216160002581 and having right to get comprehensive compensation Rs.15,00,000/- to the legal heirs of the deceased RC Owner. The complainants, who are the legal heirs of the deceased submitted the duly filled up claim form for compensation. But the opposite parties denied the claim stating that the death was natural occlusive coronary artery disease and since the death was natural the claim is not covered under the standard Motor Car Package policy. According to the complainants due to the accident the petitioners are entitled to get the damages for Rs.22,59,000 /- under various heads. But the claim is limited to Rs.15,00,000/-. It is averred in the complaint that the rejection of the claim by the opposite parties amounts to deficiency in service. Hence this complaint is filed by the complainants praying for an order to direct the opposite parties to pay Rs.15,00,000/- with interest .

Upon notice opposite parties appeared before the commission and filed version contending as follows:

The death of Fr. Moncy .P. Chacko was not due to road accident as claimed in the complaint. He was died due to occlusive coronary artery disease. The said Fr. Moncy .P. Chacko was driving the car through the changanassery - Vazhooor road and when he reached near Railway station over bridge at 1.30 p.m. developed an attack of occlusive coronary artery disease and thereby he went unconscious and the vehicle moved further and hit to a stationary container lorry which was waiting for the traffic signal . Immediately after the incident, the said Moncy .P.Chacko was taken to St. Thomas hospital Chethippuzha but died while undergoing treatment due to Occlusive coronary artery disease at 1.55 p.m. on the same day itself. The doctors of the hospital declared that the death was due to occlusive coronary artery disease. On post-mortem it is confirmed that the death was due to occlusive coronary artery disease. There was no physical injury to the body of the deceased and no severe damages were caused to the car and lorry. The police also made a detailed investigation into the matter and filed a final report stating that the death was due to occlusive coronary artery disease. Personal accident policy is subject to the section III of the policy condition. The repudiation of the claim of the petitioners is only by the policy conditions and corresponding laws. There is no unlawful trade practice or deficiency on the service on the part of the opposite parties.

The power of attorney holder of the complainants filed proof affidavit in lieu of chief examination and marked exhibits A1 to 15. Sita. S. who is the Assistant manager of the opposite parties filed proof affidavit and marked exhibit B1 from the side of the opposite parties.

On evaluation of complaint, version and evidence on record we would like to consider the following points.

(1)Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?

(2) If so what are the reliefs and costs?

For the sake of convenience we would like to consider the point number 1 and 2 together.

First complainant is the wife and the second and third complainants are the children of the Late FR. Moncy .P. Chacko . Fr.Moncy .P. Chacko was the owner of the car bearing registration no. KA-14- P -9954 and the same was validly insured with the opposite parties vide exhibit A8 policy.

When the said Fr. Moncy .P. Chacko was driving the car on 9-10-2021 through the Changanassery -vazhooor road and when he reached near Railway station over bridge at 1.30 p.m. the vehicle hit to a stationary container lorry bearing registration no. KL-16-M-4432 which was waiting for the traffic signal.

Immediately Fr. Moncy P.Chacko was taken to Chethippuzaha hospital, but he died at 1.55 PM on that day itself. Though the complainants filed a claim for the benefit of personal accident cover under the exhibit A8 policy, but the opposite parties denied the claim stating that the death was natural due to occlusive coronary artery disease and since the death was natural the claim was not covered under the standard Motor Car Package policy.

It is proved by Exhibit A3 final report in crime number 2238/2020 of Changanassery police station that on 9-10-2021 the car bearing no. KA-14P 9954 which was driven by Fr. Moncy .P. Chacko has collided with a container lorry which was waiting for the traffic signal. There is no dispute on the fact that the said Fr. Moncy .P. Chacko was died on that day itself at St. Thomas hospital Changanassery.

Only question to be answered in this case is that whether the legal heirs of Fr. Moncy .P. Chacko is entitled for the benefit of personal accident cover under the section III of exhibit A8 1 year package policy.

The opposite party produced Ext. B1 certificate of Insurance Cum Policy Schedule along with Private car Package policy wordings. The wordings Section III Personal accident cover for owner –driver is as follows:- “ the company undertakes to pay compensation as per the following scale for bodily injury/death

sustained by the owner/driver of the vehicle, in direct connection with the vehicle insured or whilst mounting into /dismounting from the vehicle insured or whilst travelling in it as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of the occurrence such injury result in :

1) Compensation shall be payable under only one of their items(i) to (iv) above in respect of the owner –driver arising out of anyone occurrence and total liability of the insurance shall not in the aggregate exceed the sum of Rs.15,00,000/- during any one period of insurance.

2) No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self-injury suicide or attempted suicide physical defect or infirmity or

(b) an accident happening whilst such person is under the influence of intoxicated liquor or drugs.

3) Such compensation shall be payable directly into the insured or to his/her legal representative whose receipt shall by the full discharge in respect of the injury insured. This cover is subject to

(a) The owner-driver is the registered owner of the vehicle insured herein,

(b) The owner –driver is the insured named in this policy.

(c) The owner-driver holds an effective driving license in accordance with the provisions of Rule 3 of Central Motors Vehicles Rules 1989, at the time of the accident.

It is proved by exhibit A8 policy that the diseased Moncy .P. Chacko was the insured and it is further proved by Exhibit A11 that he hold a valid driving licence at the time of accident.

Exhibit A5 is the Post mortem report of the said Fr. Moncy .P.Chacko . On perusal of exhibit A5 we can see that the antimortem injuries as Abrasion 2.5xo.5 cm inner aspect of left leg, 1Cm above ankle. Abrasion covered by brown scab. Exhibit A5 certifies that the death was due too occlusive coronary artery disease-a disease of heart. In Exhibit A3 final report it is stated that the doctor at St. Thomas Hospital Chethippuza deposed before the investigation officer that Fr. Moncy. P.Chacko died due to heart disease and he has not sustained any injuries in the accident.

In Alka Shukla vs Life Insurance corporation of India ( II(2019) CPJ 67(SC) the honlble supreme court has held as under :

“10. In the present case, no post mortem of the deceased or police investigation was conducted. In the absence of a post mortem report indicating the nature of injuries sustained by the insured, we would have to rely upon the medical report that indicates the exact cause of death. The medical report of Dr Ajay Goverdhan who examined the assured on the date of the accident indicated that the insured suffered shoulder and chest pain and that the exact cause of death was an acute myocardial infraction. The insured was referred to a specialist, Dr SS Dhillon, who also recorded in his report that the diagnosis did not show the cause of death to be accidental. Dr. S.S. Dhillon noted that the insured was experiencing pain in the left side of the chest and in the shoulder and there was a myocardial infarction. The insured was referred to Chandu Lal Memorial Hospital, a specialist medical center, where the OPD records noted that an ECG was taken at Dhillon Nursing Home and the insured was sweating and that he had chest pain, radiating to the

left shoulder along with two episodes of vomiting. He died before he reached the hospital. There is no material on record to indicate that the assured sustained specific injuries as a result of a fall from the motorcycle or that the injuries were caused by outward, violent and visible means, which was the sole and proximate cause of his death. There is no direct nexus or causation between the assured suffering a heart attack and injuries sustained in an accident by outward, violent and visible means. Nothing has been brought on record to show that the injuries sustained by falling from the motorcycle aggravated the assured’s condition that eventually led to his death. In the absence of any evidence to the contrary, the medical evidence on record itself prove that the insured died due to a heart attack and not due to an accident of falling from the motorcycle. The heart attack had a distinct effect of the insured falling off from his motorcycle.

In a case decided by the NCDRC-LIC of India v. Smt. Mamta Rani II MANU/CF/0397/2014 : (2014) CPJ 624 (NC): RP No. 4468 of 2012 - Clause 10.2 of the insurance policy provided an accident benefit cover if the assured sustained any bodily injury resulting solely and directly from the accident caused by outward, violent and visible means. The assured died of a heart attack. The district and state forums allowed the claim of the complainant for accidental benefit. However, the NCDRC rejected the claim and held thus:

... it is clear that in case of death of life assured, the additional accident benefit equal to the sum assured is payable only if the life assured dies because of any bodily injury resulting solely and directly from an accident by outward, violent and visible means. In the instant case, as per the record, the life assured died on 01.07.2002 due to heart attack. There is no evidence on record to indicate that the life assured died because of some injury suffered in an accident. Thus, the fora below have committed a material illegality in awarding the accident benefit to the Respondents against the terms and conditions of the insurance contract.

Similarly, in Swaranjit Kaur v. ICICI Lombard General Insurance Co. Ltd. 2015 SCC OnLine NCDRC 4168, the assured while travelling on his scooter, suffered a heart attack and fell from his scooter. The claim for accidental benefit cover was repudiated on the ground that the insured had died a natural death because of heart attack. The state commission set aside the order of the district forum allowing the claim. The NCDRC while upholding the state commission’s judgment, noted that the onus to prove that the insured had died as a result of an accident and not a heart attack was on the claimant. It held thus:

...On perusal of the copy of repudiation letter, it is clear that the Respondents repudiated the insurance claim on the ground that cause of death of insured was heart attack. On perusal of the report of the investigator, we find that the stand of the Petitioners in the statement made before the investigator on 17.8.2006 was that while driving the scooter insured suffered a heart attack, consequently, he fell down from the scooter and died. From this, it is clear that the accident took place after the insured had suffered heart attack. Otherwise also, in order to succeed in the insurance claim, the onus of proving that the  insured had died as a result of accident was on the Petitioners.

Undisputedly, incident was not reported to the police nor post mortem to establish cause of death was done. No evidence has been produced by the Petitioners to prove the cause of death of the insured. There is nothing in the statement of the Petitioners as recorded by the investigator that the insured had suffered any bodily injuries due to fall from the scooter. Thus, under the circumstances, the conclusion of the State Commission that cause of death of the insured was heart attack and not an accident cannot be faulted...

The High Court of Madras held in Life Insurance Corporation v.Minor Rohini11 that in the absence of any evidence that the assured had sustained any bodily injury resulting solely and directly from the accident caused by outward, violent or visible means, it cannot be said that the death due to a heart attack would amount to an accident for the purposes of accidental insurance claim under the policy.

12. In the present case, there is no evidence to show that any bodily injuries were suffered due to the fall from the motorcycle or that they led to the assured suffering a heart attack. There is no evidence to show that the accident took place as a result of any outward, violent and visible means. The assured died as a result of a heart attack which was not attributable to the accident.”

Ongoing through the facts of the case in hand we are of the opinion that the principle laid down in the above discussed case is squarely applicable to this case also. Thus we hold that the complainants failed to prove any deficiency in service on the part of the opposite party and the complaint is liable to be dismissed. In the result complaint is dismissed.

          Pronounced in the Open Commission on this the 19^th day of July, 2023

Sri. Manulal.V.S, President             Sd/-

 Smt. Bindhu.R, Member                Sd/-

           Sri. K.M.Anto, Member                 Sd/-

Appendix

Exhibits marked from the side of complainant

A1 – Power of attorney

A2 – Copy of FIR dtd.09-10-21

A3 – Copy of FIR No.2238/21

A4- Copy of oral statement

A5 – Copy of postmortem report of Moncy P. Chacko

A6- Copy of seasher mahazar

A7 – Death certificate dtd.21-10-21

A8 – Copy of insurance policy

A9- Letter dtd.22-04-22 issued by opposite party

A10- Personal accident claim form

A11 - Copy of driving licence of FR Moncy P. Chacko

A12-Salary certificate of Fr.Moncy P. Chacko issued by Malankara Orthodox

          Syrian Church

A13-Seasher mahazar

A14-Copy of inquest report

A15- site mahazar

Exhibits marked from the side of opposite party

B1 – Copy of policy and its conditions

                                                                                                          By Order

                                                                                                             Sd/-

                                                                                                 Assistant Registrar