DISTRICT CONSUMER DISPUTE REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.482/2009
- Sh. Milind Harit
S/o Late Sh. Sahib Singh Harit,
E-95, Greater Kailash-I,
New Delhi-110 048
- Mrs. Danwati Devi Harit,
W/o Late Sh. Sahib Singh Harit,
E-95, Greater Kailash-I,
New Delhi-110 048
- Sh. Rahul Harit,
S/o . Late Sh. Sahib Singh Harit,
E-95, Greater Kailash-I,
New Delhi-110 048
- Miss Vishakha Harit,
D/o Late Sh. Sahib Singh Harit,
E-95, Greater Kailash-I,
New Delhi-110 048. ….Complainants
Versus
Iffco Tokio General Insurance Co. Ltd.
FAI Building, 10, Shaheed Jeet Singh Marg,
Qutab Institutional Area,
New Delhi- 110-067 ……Opposite Party
Date of Institution : 12.06.09 Date of Order : 21.01.17
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
The Complainants feeling aggrieved against the letter dated 25.09.08 issued by the OP thereby repudiating the personal accident claim of the deceased Sh. Sahib Singh Harit on the ground of delay and that the cause of death was not an accident which rejection of claim on these arbitrary grounds amounts to deficiency in rendering service have filed the present complaint for claiming Rs.15 lacs. The Complainants No.1 & 3 are the sons, the Complainant No.4 is the daughter whereas the Complainant No.2 is the wife of the deceased Sh. Sahib Singh Harit.
Their case is that on the evening of 29-05-2005 around 7.00 P.M. their father was going from ground floor to Ist Floor of their house and suddenly got his right foot toe hit the stair and he fell down. He was taken to the family doctor Dr. B.B. Mittal immediately, who bandaged the wounded foot and prescribed some medicines. He was changing the dressing and taking medicines regularly. After one month of accident on 31-07-2005 he complained of severe unbearable pain in the right foot which was wounded. They immediately took him to nearest hospital, Pushpawati Singhania Research Institute in Shekh Sarai, New Delhi. The doctors diagnosed him with leg a cellulitis and admitted him in the emergency ward immediately. After few hours his condition was deteriorated and, therefore, he was shifted to ICU next day on 1-08-2005 but when his condition was not improving the doctors were requested to allow them to shift the patient to Indraprastha Hospitals, Sarita Vihar, New Delhi. Their father was taken in the Hospital ambulance and he was admitted in an ICU and the doctors suggested immediate amputation of his right leg. His leg was finally amputated. After the amputation he could not survive despite best treatment and efforts of the doctors and, therefore, he was declared dead at 5.15 p.m. on 06-08-2005. It is submitted that after a period of 3 years of the tragedy in the month of August, 2008, while searching the personal file of the deceased they found an insurance policy of the OP. The said insurance was taken alognwith the home loan issued by Bank of Punjab Ltd., Galleria branch, Gurgaon in May 2005 for an amount of Rs.15 lacs. Upon this, the Complainants applied for payment of the insurance claim to the OP vide letter dated 29.08.08. Reminder dated 12.09.08 was issued. The Complainants received a letter dated 25.09.08 from the OP repudiating the claim on the ground that the same was barred by time and cause of death was not accident. It is stated as follows:-
“9…The death of our father late Sh. Sahib Singh Harit was caused as a result of a bodily injury sustained by him as he fell from the stairs of the house and it was not a natural death. This is very much clear from the Death Certificate issued by Indraprastha Apollo Hospitals from that the cause of his Death was Necrotizing Fascitis, which is a Bacterial infection caused due to an injury. If he had not got his toe hurt on the stairs and fallen, he would not have got Necrotizing Fascitis. It is only due to that injury, his infection became severe & the need for amputation arose. Being Diabetic and having Chronic Liver Disease further complicated the matter, due to which his infection spread rapidly in no time. This is very much clear from the Death Summary and after discussion from various expert doctors in this case that the main cause of his Death was Necrotizing Facitis while Diabetes & Chronic Liver Disease from a toe injury.”
Hence, the rejection of their genuine and justified claim by the OP amounts to deficiency in service The Complainants have prayed as under:-
- to quash and set-aside letter dated 25.09.2008 (Annexure-A1) and direct the respondent to pay the insurance amount of Rs.15 lakhs to the Complainants;
- direct the OP to pay a consolidated sum of Rs.1 lakh as compensation to the Complainants towards interest and for the mental agony undergone by them at the hands of the Respondent and cost of litigation.
OP in the written statement has inter-alia stated that the claim was filed after about 3 years of the death of the deceased and is time barred U/s 24A of the Consumer Protection Act. It is stated as under:-
“4. That the complainant has not disclosed the complete facts of the case. A complaint was filed by the complainant before the Hon’ble Ombudsman of Insurance and after hearing both the parties and their arguments, the Hon’ble Ombudsman has issued their order dt. 28.05.2009 dismissing the complaint for the delay in intimating the loss to the respondents. The order issued is quite in detail and a copy of the same is enclosed herewith as Annexure-R-2. As such the Hon’ble Forum has no reason to entertain the petition now and is liable to be dismissed as already decided.”
It is further stated as follows:
“…The policy issued covers personal accidental injury/death of the borrower under a separate section which is as under:
Section II PERSONAL ACCIDENT
SCOPE OF COVER
The following benefits are payable in the event of the insured person sustaining bodily injury resulting solely and directly from accident caused by external violent and visible means….”
7.1 That the above section covers death caused solely and directly by accidental injuries. The death of the insured borrower as mentioned in the death certificate of the Apollo hospital was as under:
CAUSE OF DEATH – CHRONIC LIVER DISEASE WITH TYPE II DIABETES WITH RT LOWER LIMB NECROTIZIA FASCITIS POST OP ABOVE KNEE AMPUTATION WITH SEPTICEMIC SHOCK WITH MULTI ORGAN DYSFUNCTION.
The death certificate issued by the hospital confirms that the death was directly or solely due to accidental injuries sustained by the patient. The death was actually on account of complication of various life threatening diseases/ailments from which the patient was already suffering from last few years. The injury might have created the complication due to specific ailments such as Diabetes but cannot be a direct and sole cause of death of the patient. The Necrotizia Fascitis which has been blamed to be the cause of the death is not correct as the same is bacterial infection and can be treated fully with right medication. The surviving rate is also more than 80%. As such the actual cause of death was Chronic Liver Disease with type II Diabetes Mellitus and multi organ dysfunction. The Necrotizia Fascitis was the secondary reason and due to existence of other serious ailments complicated the situation resulting into the death of the patient as such it was not the only ailment which directly caused the death. Had the patient not affected with any other problem the NF could not have taken his life nor responsible for amputation etc as the success rate is very high accordingly the repudiation is in order and within the terms and conditions of the policy as the injury causing death was not sole and direct reason therefore.”
It is further stated as under:-
“….It is submitted that a decision was taken by the respondents after consulting their panel doctor Dr. M.S. Sagar (AIIMS) MD (AIIMS) Ex-Registrar (AIIMS) Consulting Physician, who has opined as under:-
“OPINION
This is a case of hospitalization for the management of fever, pain in right foot with decreased urine output in known diabetic with H/o Diabetic Foot Right Side (June 2005) and known case of Diabetes Mellitus and Chronic Liver Disease since 2003 investigated and diagnosed as Diabetes Mellitus with Necrotising Fascitis right lower limb with Chronic Lever Disease with Septicemia with Multi Organ dysfunction managed with Right lower limb above knee amputation along with other live support measures and expired in the hospital with cause of death being Chronic Liver Disease with type II with right lower limb necrotizing fasciitis with above knee amputation with septicemia shock with multi-organ dysfunction.
The claim is not admissible under PA policy as the death has been due to pre-existing Chronic Liver Disease and pre-existing Diabetes Mellitus type II with Diabetic Foot and its complications- right lower limb necrotizing facitis with septicemic shock and multiorgan failure. The claim may be repudiated and closed as No claim.”
The doctor has further clarified the position vide his letter dt. 19.05.2009 as under:
The date of sustaining injury is 29.06.2005 and date of hospitalization is 31.07.2005 and 32 days after the said injury which is not in conformity of diagnosis of necrotizing Fasciatis which is of acute onset and develops almost immediately after the injury. The relation between the injury allegedly sustained on 29.06.2009 and his subsequent hospitalization almost after one month is not established as the early symptoms appears usually within 24 hours and critical symptoms with 4-5 days.
“Death in present case not solely and exclusively due to the said injury since the death of summary and death certificate has mentioned the cause of death as Chronic Liver Disease with type II Diabetes Mellitus with Right lower limb necrotizing fasciitis with above knee amputation with septicemic shock with multi-organ dysfunction. To be covered under the PA policy death has to be solely and exclusively due to injury.”
OP has prayed for dismissal of the complaint.
Complainants have filed a rejoinder. It is inter-alia stated as under:-
“… the complainants have also obtained an Expert Opinion of the treating Doctors of the Indraprastha Apollo Hospitals, Sarita Vihar, New Delhi on 03.02.10, who have clarified in their written certificate after thorough investigation of their internal hospital case records and history of the patient that the immediate cause of the death of late Shri Sahib Singh Harit was Necrotizing Fascitis only leading to multi-organ failure. Though he also had underlying diabetes mellitus type II and chronic liver disease. However, the fact remains that the immediate cause of death was Necrotizing Facitis and not diabetes and liver disease. The deceased would have been living perfectly fine like any other patient with these diseases, if Necrotizing Facitis had not happened. The medical literature on Necrotizing Facitis show the causes and symptoms of the disease which clearly states that it is caused due to an injury.”
Sh. Milind Harit, Complainant No.1 has filed his affidavit in evidence on behalf of the Complainants. On the other hand, affidavits of Dr. M. S. Sagar and Sh. P. J. Pradhan, VP of the OP have been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the Complainants and OP.
We have heard the oral arguments of Complainant No.1 and have also gone through the file very carefully.
The Complainants on 10.08.15 filed a copy of judgment dated 08.07.2015 delivered by the State Commission in C.C. No.307/2008 titled as Milind Harit V/s Oriental Insurance Co. whereby the State Commission allowed the complaint with the following directions in favour of the Complainants and against the OP (Oriental Insurance Co.) :
“a OP shall pay to the Complainant an amount of Rs.19 lac w.e.f. the date of preferring of the claim i.e. 25.08.2008 alongwith interest @ 9% p.a. till the date of realization.
b. to pay to the Complainants compensation to the tune of Rs.1 Lac. for harassment, inconvenience and mental agony caused to the Complainants.”
The complainants had filed the above stated complaint before the State Commission on almost the same set of facts. In that case, insurance claim was made against Oriental Insurance Company. Para 11 of the Judgment is most relevant. The same reads as under:-
“11 Coming to the question of cause of death, the contention of the complainants is that the deceased had fallen in the staircase of his house on 29.06.2005 when he was taken to the family doctor, Dr. B.B Mittal. Doctor bandaged the wound. When the pain did not subside, deceased was taken to pushpawati Singhania Research Institute, Shiek Sarai, New Delhi. Finding the treatment unsatisfactory, the attendants of the deceased took him to Indraprastha Apollo Hospital on 01.08.2005. He was declared dead on 06.08.2005. Complainant have placed on record the prescription slip of Dr. B.B. Mittal which reads: there was history of fall from stirs and sustaining injury on big toe right foot ; The complainants also placed on record the medical papers relating to Pushawati Singhania Research Institute showing trauma to the right foot. The expression ‘trauma’ suggests that it was not the case of development of gangrene without any accident or shock. Apollo Hospital in its certificate dt. 03.02.2010 stated that the immediate cause of death was Necrotizing Fascitis leading to multiorgan failure. These documents clearly go to show that the trouble of gangrene developed due to trauma/shock to the big toe of right foot. Diabetes itself cannot be labeled as fatal and a disease. Deceased had accident leading to amputation of the right leg and ultimately his death. It is a matter of common knowledge that even after amputation of limbs one can survive. We are, therefore, of the considered opinion that the cause of death was not the diabetes but the accident that led to gangrene followed by amputation of the leg and finally the death. The OP fell in grave error in repudiating the claim on both the above discussed grounds. Complaint is hence allowed to that extent and following directions are passed in favour of the complainants and against the OP…..”
Therefore, in our considered opinion, after the decision of the State Commission in C.C. No.307/2008 the present complaint against the OP has become infructuous since the complainants are not entitled to claim insurance claims on the same cause of action from the two different insurance companies.
In view of the above discussion, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 21.01.17.
