KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 460/2010
JUDGMENT DATED:11..03..2011.
PRESENT
SMT. VALSALA SARANGADHARAN : MEMBER
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SRI.M.K. ABDULLA SONA : MEMBER
Divisional Manager,
New India Assurance Co., : APPELLANT
Divisional Office No.1, Trivandrum.
(By Adv:Sri.Thomas.P.Jacob)
Vs.
Mayan Digvijay,
“Maya” Kannadi.P.O, : RESPONDENT
Palakkad-678 701.
(By Adv.Sri.M.Narayanankutty & C.Madhavankutty)
JUDGMENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
The above appeal is preferred from the order dated 17th July 2010 of the CDRF, Palakkad in CC.118/09 which was filed by the respondent herein as complainant alleging deficiency in service on the part of the Insurance Company namely, the New India Assurance Co. Limited in repudiating the insurance claim which was preferred by the complainant with respect to the Pravasy Suraksha Kudumbaroghya policy issued in the name of his wife Dr.Kousalya. The complainant is the husband of deceased Dr.Kousalya(insured). The insured under the above said Pravasy Suraksha Kudumba Arogya policy died on account of black ant bite resulting anaphylactic shock. The complainant alleged that the death of the deceased/insured was an accidental death covered by the Pravasy Suraksha Kudumb Arogya policy and so the complainant being the husband and legal heir of the deceased/insured. He is entitled to get insurance claim for Rs.10,00,000/-.
2. The New India Assurance Company Limited was represented by the Regional Manager as the 1st opposite party and the New India Assurance Co.Ltd., Financial office, Palakkad was represented by the Manager as the 2nd opposite party. They filed written version denying the alleged deficiency in service. They contended that the death of the insured Kousalya will not come under the coverage of the Pravasy Suraksha Kudumba Arogya policy; that death by ant bite can not be treated as an accidental death it was further contended that the deceased insured was a known asthmatic and she had past history of developing allergic reaction to ant bite, as such the death of the insured was not due to the ant bite but due to her existing reactive allergic problem resulting in respiratory failure leading cardiac arrest, hypoxic encephalopathy. Thus, the opposite parties justified their action in repudiating the insurance claim.
3. Before the Forum below, the power of attorney holder of the complainant filed proof affidavit in lieu examination in chief. Ext.A1 to A14 documents were also marked on the side of the complainant. From the side of the opposite party/New India Assurance co.Ltd. the Financial Manager, Divisional office, Palakkad was examined as DW1. Ext.B1 copy of terms and conditions of policy was also marked on the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 17.7.10. finding deficiency in service on the part of the opposite parties and thereby the opposite parties are directed to pay the complainant an amount of Rs.10,00,000/- being the insurance claim along with interest at the rate of 12% per annum from the date of complaint till the date of order with cost of Rs.1000/-. The opposite parties are made jointly and severally liable to pay the insurance amount with interest and cost within one month from the date of receipt of copy of the order failing which the amount shall carry interest at the rate of 9% per annum from the date of order till realization. Aggrieved by the said order, the present appeal is filed by the Divisional Manager, New India Assurance Co., Divisional office No.I, Thiruvananthapuram. It is submitted that the Divisional Manager is authorized to represent the appellant, New India Assurance Co.Ltd.
4. We heard the learned counsel for the appellant/New India Assurance Co.Ltd. and also the learned counsel for the respondent/complainant. The counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that the claim preferred by the complainant was a time barred claim and that the Forum below has gone wrong in not considering the issue regarding bar of limitation. He further submitted that the incident of ant bite is not covered by the Pravasy Suraksha Kudumba Arogya policy issued in the name of the deceased/insured(Kousalya). He also relied on the decisions rendered by the Hon’ble National Commission in The Erode Turmeric Merchants Association, Erode Vs. Periyar Market Committee and another (1996)(3) CPR 111 and Consumer Education and Research Society and another vs. Life Insurance Corporation of India reported in V-VI 1993 (2) CPR 129 and requested for setting aside the impugned order passed by the Forum below. On the other hand, the counsel for the respondent/ complainant supported the impugned order passed by the Forum below in CC.118/09 and argued for the position that the claim preferred by the complainant is not barred by limitation and submitted that the complainant was prosecuting the matter in the proceedings before the Insurance Ombudsman and also before the Hon’ble High Court by filing writ petition in (WPC) No.18036/07(H) and so the time consumed for conducting the aforesaid proceedings is to be excluded by virtue of Section14(1) of the limitation act, 1963. He also relied on the decision rendered by the Hon’ble National Commission in Rita Devi Vs. National Insurance Co.Ltd. and others (Revision Petition No.973/2007 and also the decision of the National Commission in Padma Ramanathan Vs.National Insurance Co.Ltd. (OP No.173/2000) and argued for the position that the death caused by black ant bite is to be treated as an accidental death by violent and visible means coming under the purview of the Pravasy Suraksha Kudumba Arogya policy issued in the name of the insured Dr.Kousalya. Thus, the respondent prayed for dismissal of the present appeal.
5. The points that arise for consideration are:
1) Whether the insurance claim preferred by the complainant in CC.118/09 was barred by limitation?
2) Whether the death of the insured Dr.P.V.Kousalya is covered by Pravasy Suraksha Kudumba Arogya policy issued by the opposite party/New India Assurance Company Limited?
3) Is there occurred any deficiency in service on the part of the opposite party the New India Assurance Co. in repudiating the insurance claim preferred by the complainant in CC.118/09?
4) Is there any legally sustainable ground to interfere with the impugned order dated 17th July 2010 passed by CDRF, Palakkad in CC.No.118/09?
6. Point No.1:-
The respondent/complainant is the husband of insured Dr.P.V.Kousalya. Admittedly the complainant’s wife Kousalya was holder of Pravasy Suraksha Kudumba Arogya policy vide 7611/47/1999/80108 for a sum of Rs.10,00,000/- There is no dispute that the insured Kousalya was bitten by a black ant on 15.11.04 and as a result of ant bite the insured Kousalya developed some problems and she was admitted in the hospital and she died on 22..11..2004 while undergoing treatment in the hospital. The case of the complainant was that death of the insured Kousalya is covered by the insurance policy issued by the appellant/opposite party the New India Assurance Co/Ltd. The claim preferred by the complainant was repudiated by the appellant/opposite party, Insurance company vide letter dated 8th December, 2005 and also by subsequent repudiation letter dated 15.6.06. There after, a complaint filed before the Insurance Ombudsman, Kochi under the redressal of public grievance Rules, 1998. The said complaint was received by the Ombudsman on 10.11.06 and vide order dated 20.3.07, the Insurance Ombudsman dismissed the said complaint by upholding the repudiation of the claim by the insurance Company. The order passed by the Insurance Ombudsman was challenged by filing writ petition WPC No.18036/07 H. The Hon’ble High Court of Kerala disposed of the said writ petition vide judgment dated 1st April, 09. By the said judgment the Hon’ble High Court had found that the High Court was not competent to adjudicate the issues involved in the matter of insurance contract by invoking writ jurisdiction under article 226 of the constitution of India. Thereby, the petitioner therein (complainant) was directed to approach higher authorities of the Insurance Company for the redressal of his grievances. It was also directed that the in such an event the matter shall be considered and finalized by the Insurance Company, passing an appropriate orders in accordance with law, as expeditiously as possible, at any rate within three months. Thereafter, the complainant approached the opposite party by filing a petition for reconsideration of the claim preferred by the complainant. The opposite party by the reply letter dated 6.7.09 confirmed the earlier stand and repudiated the insurance claim. It is thereafter, the present complaint in CC.118/09 was preferred by the complainant.
7. The complaint in CC.118/09 was filed on 30.7.09. The opposite parties entered appearance and filed their version on 20th November 2009. It is to be noted that the opposite parties did not raise any contention regarding bar of limitation. There was no whisper in their written version that the claim in CC.118/09 is barred by limitation. So naturally, the Forum below did not raise such an issue regarding bar of limitation. It is true, that the Forum below failed to consider the issue as to whether the insurance claim is barred by limitation . It is true that it was the duty cast upon the Forum below to consider the issue as to whether the claim is barred by limitation.
8. The appellants/opposite parties (Insurance Company) in their memorandum of the appeal urged the ground that the claim in the complaint is a time barred claim. So, this State Commission was pleased to hear both parties on the issue regarding the bar of limitation in preferring the complaint in CC.118/09.
9. The materials on record would show that the complainant being the husband of the insured Dr.Kousalya preferred the insurance claim under the Pravasy Suraksha Kudumba Arogya policy issued in the name of deceased insured Kousalya. The aforesaid claim was repudiated by the New India Assurance Company Limited by Ext.A9 repudiation letter dated 8th December 2005. It is to be noted that the insured Kousalya died on 22.11..04 Thereafter the complainant approached the Insurance company vide letter dated 14..3..06. After the scrutiny of the claim papers, the insurance company again issued repudiation letter dated 16..6..06. Exts.A9 and A11 are the repudiation letters issued by the opposite parties (Insurance Company). It is thereafter, the complainant approached the insurance Ombudsman by preferring the complaint. It was received by the insurance ombudsman on 10.11.06. Insurance Ombudsman dismissed the said complaint vide Ext.A14 order dated 20.3.07. The aforesaid Ext.A14 order was challenged by the complainant by preferring WPC 18036/07 H. The writ petition was disposed of vide its judgment dated 1st April, 09. As per Ext.A3 judgment in WPC 18036/07 it was held that the issue involved therein cannot be adjudicated under the writ jurisdiction and thereby the complainant was directed to approach the higher authorities’ of the Insurance Company for redressal of his grievances. The insurance company was further directed to consider the request of the complainant and finalise the matter by passing appropriate orders within three months. The complainant approached the higher authorities of the insurance company as directed in Ext.A3 judgment passed by Hon’ble High court in WPC 18036/07 H. But the insurance company confirmed their stand and repudiated the insurance claim vide their letter dated 6.7.09. Ext.A2 is the said letter issued by the Regional Manager, New India Assurance Co. Limited, Ernakulam Regional Office, Kochi. It is there after the present complaint in CC.118/09 was filed on 30.7.09. So, it can very safely be concluded that the claim in CC.118/09 is not barred by limitation. Even if it is held, that the Hon’ble High Court of Kerala had no jurisdiction to entertain the dispute by invoking the writ jurisdiction under article 226 of the Constitution, the complainant is entitled for the benefit under Section 14(1) of the limitation Act, 1963. The complainant can be considered as a litigant bonafide conducting the civil proceedings in a court without jurisdiction. There is no case for the appellant/opposite party Insurance Co. that the complainant approached the insurance Ombudsman and the Hon’ble High Court with any malafide intention. The materials on record would only show that the complainant has been prosecuting the aforesaid proceedings with due diligent and with a bonafide intention of getting his grievances redressed. Hence we hold that the complainant is entitled to get exclusion of time taken for proceeding the matter in a court without jurisdiction as provided under sub section 1 of Section 14 of the Limitation Act, 1963. [M/s Sakthi Tubes Ltd. Tr Director vs. State of Bihar and others AIR (2009) SC 1200, Lakshmidas Morarji (dead) by LRs vs Miss Bahrose Darab Madan reported in 2009 (10) SCC 425 and Sarati vs. SBI reported in 2000 (5) SCC 355]. The decisions of the Hon’ble Supreme Court relied on by the learned counsel for the respondent/complainant would also justifythe claim to get the benefit under Section 14(1) of the limitation Act, 1963. Thus, it can very safely be concluded that the complaint in CC.118/09 was not barred by limitation and that the Forum below is justified in entertaining the complaint therein. This point is answered accordingly.
10. Point Nos: 2 to 4:-
The insurance claim preferred by the 1st respondent /complainant was repudiated by the appellant/New India Insurance Company on the ground that death of the insured Dr.Kousalya was not an accidental death coming under the coverage of the Pravasi Suraksha Kudumba Arogya Policy which was issued by the appellant/New India Insurance Company Ltd. in favour of the insured, Dr.Lousalya. Ext.A9 and A11 are the repudiation letters issued by the appellant/insurance company repudiating the insurance claim stating that the claim can be payable only if the insured person sustained any bodily injury resulting solely and directly from accident caused by violent, outward and visible means. According to the opposite party/insurance company, the cause of death is due to anaphylactic shock and the said cause or event or risk is not covered by the Pravasi Suraksha Kudumba Arogya Policy. The very same reason or ground is stated in Ext.A11 repudiation letter dated:15/6/2006.
11. The 1st respondent/complainant relied on Ext.A5 death notification, A6 certificate issued by the Directorate General of Health Services, Governorate of Muscat. A8 certificate of death dated:24/11/2004 issued y Embassy of India, Muscat and A13 copy of the patient’s repository issued by Sultanate of Oman, Ministry of Heath. Ext.A6 document would show that the insured Kousalya died on 22/11/2004, the cause of death is shown as anaphylactic shock. It is dated 24/11/2004. Ext.A5 is the death notification issued by Sultanate of Oman, Ministry of Health, Royal Hospital. It is dated 22/11/2004. A5 death notification would reveal the causes of death as follows:-
“Disease or condition directly leading to death is Anaphylactic shock due to ant bite leading to respiratory failure. Antecedent causes Morbid conditions (if any) giving rise to the above cause, stating the underlying condition last. It is reported as cardiac arrest and hypoxic encephalopathy. Other significant conditions contributing to the death, but not related to the disease or condition causing it. It is shown as Bronchial Asthma and Hypertension.”
12. A5 certificate was issued by Dr.Shailendra V Chaudhari. The genuineness and correctness of A5, A6, A8 and A13 documents are not disputed by the appellant/opposite party/ insurance company. A5 death notification would make it abundantly clear that the death of the insured was caused due to ant bite leading to respiratory failure. The antecedent causes morbid conditions if any –cardiac arrest, respiratory failure hypoxic encephalopathy. The mere fact that the insured was having bronchial asthma or the diseased condition of hyper tension cannot be taken as a ground to hold that the death of the insured Kousalya occurred due to bronchial asthma or hyper tension. But it can very easily be concluded that due to the ant bite, the inusred Kousalya had anaphylactic shock leading to respiratory failure, cardiac arrest and hypoxic encephalopathy. So, the ant bite can be considered as accident by violent and visible means. So, the death of the insured can be considered as an accidental death coming within the purview of the Pravasi Suraksha Kudumba Arogya Policy. A8 certificate of death would also confirm that the insured had an accidental death while she was in Muscot and Ext.A6 and A8 documents would also show that the dead body of the insured was brought to India.
13. A13 patient repository issued from Ministry of Health, Sultanate of Oman would also strengthen the case of the complainant that his wife, the insured Kousalya had black ant bite on 15/11/2004 and she was admitted in a private clinic and subsequently she was transferred to Royal hospital, Sultanate of Oman, Ministry of Health. It would also make it clear that only due to the black ant bite the insured had severe hypoxic condition and she was admitted in the hospital in ICU. A13 document would also show that the insured had severe anaphylactic shock, cardiac arrest, hypoxic, encephalopathy due to the black ant bite on 15/11/2004 and that the insured Kousalya died on 22/11/2004 while undergoing treatment in Royal hospital, Sultanate of Oman, Ministry of Health. Thus, it can be seen that the black ant bite was the proximate cause for the death of the insured.
14. It is held by the Hon’ble Supreme Court in New India Assurance Company Ltd Vs. Zuvari Industries Ltd and others reported in 2010 CTJ 5 (SC) (CP) that “proximate cause is not the cause nearest in time or place. It is on the other hand, the active and efficient cause that set in motion a train or chain of events which bring about the ultimate result without the intervention of any other force.” In the present case in hand, the insured Kousalya had the death only on account of the black ant bite on 15/11/2004. The other events were followed in consequence of the ant bite and that the subsequent events occurred without the intervention of any other force or agency. It can be concluded that the proximate cause for the death of the insured was the black ant bite on 15/11/2004 and the said accident/incident ultimately ended in her death by anaphylactic shock leading to respiratory failure, cardiac arrest and hypoxic encephalopathy.
15. The Divisional Manager of the opposite party/insurance company was examined before the Forum below as DW1. He categorically admitted the incident of black ant bite and the same caused the death of the insured by anaphylactic shock leading to respiratory failure, cardiac arrest and hypoxic encephalopathy. It is true that the insured was having bronchial asthma and hyper tension and the aforesaid disease condition might have attributed in enhancing the resultant injury by the black ant bite. But there is nothing on record to show that the cause of death of the insured was due to bronchial asthma or hyper tension. On the other hand, the acceptable evidence on record would show that the insured died only due to the black ant bite which caused anaphylactic shock leading to respiratory failure, cardiac arrest and hypoxic encephalopathy. It is very interesting to note that DW1 has admitted the fact that the snake bite or attack by an elephant are the risk covered by the Pravasi Suraksha Kudumba Arogya Policy. He further admitted that if the death of the insured happened on account of snake bite or elephant attack the nominee of the insured will get the insured sum of Rs.10.lakhs. The aforesaid testimony of DW1 would give an indication that the appellant/opposite party/insurance company treated the black ant bite as an ordinary ant bite and there was nothing serious in such an ant bite. The aforesaid approach or attitude adopted by the insurance company cannot be accepted as just and proper approach or attitude.
16. Ext.A10 photocopy of the newspaper cutting produced from the side of the complainant would show that the insured, Kousalya died due to the toxicity by a black ant bite and associated allergic reactions. From the side of the complainant, another newspaper cutting of Malayala Manorama daily dated 15th May 2010 has been produced. The aforesaid news paper cutting would also show that a youth aged 29 years working in Dubai died as a result of ant bite. It is reported that fatal allergic conditions can be developed by such type of poisonous ants. From the side of the complainant leaflets are also produced about the attack of dangerous ants and insects, like fire ants, black ants etc. The aforesaid reports would show there are dangerous and poisonous ants which are called killer ants and the bite from those ants is fatal. The testimony of DW1 would only support the case of the complainant that the ant bite and the resultant death of the insured can be considered as an accidental death by violent, external and visible means and the said accidental death is covered by Pravasi Suraksha Kudumba Arogya Policy.
17. The Hon’ble National Commission in Ritadevi Vs. National Insurance Company Ltd. reported in IV 2007 (CPJ) 355 (NC) had occasion to consider the issue regarding accidental death by violent, external and visible means. The Hon’ble National Commission considered various aspects of the term accident, violent, external and visible means containing in accident policies. The commission also considered the various decisions including that of the Hon’ble Apex Court on this subject and also the interpretation and definition given by various authorities on the term accident, external, violent and visible means and ultimately came to the conclusion that accident or accidental means the incident which is not natural. The term ‘violent’ does not necessarily imply actual violence. The ‘violent’ is merely used in anti thesis but without any violence at all. The term ‘external’ is used to express anything which is not internal and any cause which is ‘external’ in this sense is also ‘visible’ within the meaning of an accident policy. In the aforesaid decision (supra) it was held that the act of threatening by the armed miscreants and the life assured encountering those threats had heart attack resulted in his death is considered as accidental death coming within the ambit of the accident policy. The Forum below can be justified in holding that the complainant’s wife who had an accidental death would come within the purview of the accident policy. The Forum below has rightly held that the opposite party/New India Assurance Company Ltd was guilty of deficiency of service in repudiating the insurance claim preferred by the complainant being the nominee and husband of the insured doctor Kousalya. We endorse the said finding entered by the Forum below.
18. Admittedly the insured had the Pravasi Suraksha Kudumba Arogya Policy for a sum of Rs.10.lakhs. The complainant being the nominee of the insured was entitled to get the said insured sum of Rs.10.lakhs on the accidental death of the insured doctor Kousalya. The aforesaid claim was repudiated by the opposite party/New India Assurance Company Ltd by the repudiation letter dated:8/12/2005. So, the Forum below is perfectly justified in directing the opposite parties to pay the insured sum of Rs.10.lakhs to the complainant with interest at the rate of 12% per annum from the date of repudiation(8/12/05) till the date of the impugned order with cost of Rs.1000/-. The Forum below is also justified in directing the opposite parties to comply with the order within one month from the date of receipt of the order failing which the whole decreed amount shall carry interest at the rate of 9% per annum from the date of order till realization. The opposite parties are also made jointly and severally liable to pay the decree debt. We do not find any legally sustainable ground to interfere with the impugned order passed by the Forum below. Hence the same is confirmed. These points are answered accordingly.
In the result the appeal is dismissed. The impugned order dated 17.7.2010 passed by the CDRF, Palakkad in CC.118/09 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
VALSALA SARANGADHARAN : MEMBER
M.K. ABDULLA SONA: MEMBER
VL.
