IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> CC 427/09 DATED 03.03.2010<br /> ORDER<br /> Complainants 1. Mr.Laxminarasimha.S, Account Officer, M/s Rangarao and Sons, 1553, M.G.Road, P.Box No.52, Mysore-4.<br /> 2. Smt.Gajalakshmi.M.,<br /> W/o Late Shivaprakasham.M.<br /> 3. Vidneshwar.M.,<br /> S/o Late Shivaprakasham.M.<br /> 4. Hemamalini.M.<br /> D/o Late Shivaprakasham.M.<br /> Complainants 2 to 4 are R/at<br /> D.No.22B, Mettu Street, Cuddalore-607001, Tamilnadu.<br /> (By Sri. A.C.Narendra, Advocate)<br /> <br /> Vs. <br /> Opposite Party The Manager,<br /> M/s The New India Assurance Company Ltd., 13/2, I Floor, II Main, Temple Road, V.V.Mohalla, Mysore-20.<br /> (By Sri.Jaganath Suresh Kumar, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 16.11.2009<br /> Date of appearance of O.P. : 01.12.2009<br /> Date of order : 03.03.2010<br /> Duration of Proceeding : 3 MONTHS 2 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainants have filed the complaint, seeking direction to the opposite party to pay a sum of Rs.2,32,000/- and Rs.4,00,000/- covered by the insurance policy I/A and V/B respectively and further compensation of Rs.2,00,000/- towards deficiency in service and cost of the proceedings.<br /> <br /> 2. In the complaint it is alleged that, the first complainant is an establishment engaged in manufacturing Cycle Brand Agarabathi. In order to give benefit to it’s employees, the first complainant took insurance policy to cover personal accident of the 586 employees. Policy No.672400/42/07/03/00000/64 under Group Personal Accident. It was in force from 22.07.2007 to 24.07.2008. First complainant paid premium of Rs.2,18,379/-. Under the policy, sum insured for the entire group is Rs.21,88,95,000/-. One of the employees of the first complainant by name Shivaprakasham husband of the second complainant and father of third and fourth complainants was working as Sales Officer of the first complainant. At Sr.No.549, he was covered by the policy in question. While on duty at Cuddalore Sales Unit, Shivaprakasham on 15.05.2008 suffered sun stroke at 11.00 am. He was examined and declared dead by Dr.M.K.Srinivasan at Cuddalore. First complainant placed claims before the opposite party in order to benefit the heirs of the deceased. The opposite party sought certain particulars. While furnishing particulars sought by the opposite party, it was made known that, no FIR was lodged and the body was not subjected for post-mortem. Reason for the same was explained to the opposite party. The opposite party failed to settle the claim. Legal notice was sent. Untenable reply was given. By not settling the claim, opposite party has caused deficiency in service. Further, it is stated that, the opposite party has repudiated the claim on the ground that no FIR or post-mortem report was furnished to establish the cause of death. Other contention raised by the opposite party is that, death by sun stroke cannot be considered an accident. Lodging of policy complaint did not arise under the circumstances, in which Mr.Shivaprakasham died. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The opposite party in the version has contended that, the complaint is not maintainable either on facts or under law. The fact that the first complainant had taken the policy in question, covering the risk of the employees, is admitted. The liability under the policy is subject to terms, exclusions, definitions and conditions of the policy. The death of Mr.Shivaprakashan is unnatural. Complainants failed to furnish FIR and post-mortem report. Both documents are necessary to settle the claim and to find the cause of death. Cause of death as sun stroke alleged by the complainants, is denied. It is contended that, after death, no doctor can certify or find the cause of an unnatural death without subjecting the body to post-mortem. The death could be for various reasons even due to natural cause. Hence, post-mortem is mandatory. Post-mortem cannot be substituted by medical certificate. Contents of the medical certificate produced by the complainants, is denied. Without prejudice to the above contention, it is submitted that, the death due to sun stroke cannot be construed as an accidental death. Claim of the complainants was not considered, because required documents were not produced. Hence, it will not amounts to deficiency in service. Further, it is contended that, on investigation, it has come to the knowledge of the opposite party that, the doctor who has issued the certificate that deceased developed uneasiness while he was in the house. The doctor was called to the house. The doctor went to the house of the deceased. Condition of the deceased was critical. He died immediately. Also, it is submitted that, sun stroke never happens to single person. It will affect many people in the area. The investigation found that, no single case of sun stroke was reported in that area. Different versions are given by the relatives of the deceased. Hence, certificate produced by the complainants cannot be relied upon. Complainants are trying to suppress the material facts. They have fabricated the facts in order to make insurance claim. The matter cannot be tried in a summary way. Matter has to be dealt elaborately by affording opportunity to the parties to lead evidence and documents from various departments. That can be done only by Civil Court. On these grounds, it is prayed to dismiss the complaint. <br /> <br /> 4. For the first complainant, the Accounts Officer has filed his affidavit and on behalf of complainants 2 – 4, the second complainant wife of the deceased has filed her affidavit. Later, additional affidavits of these persons and of one witness by name Ramamurthy are filed. Certain documents are produced. On the other hand, an Officer of the opposite party has filed his affidavit and certain documents are produced. We have heard the arguments of both learned advocates for the complainants and opposite party and perused the records. <br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainants have proved any deficiency in service on the part of the opposite party and that they are entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- Before entering into the merits of the case, it is necessary to consider the contention raised by the opposite party that, the matter cannot be tried in a summary way. At the end of paragraph 5 (A) of the version, it is stated that, the matter has to be dealt elaborately by affording an opportunity to parties to lead evidence by summoning witness and documents from various departments. This can be dealt only by Civil Court. Hence, the complaint is not maintainable. To appreciate the said contention of the opposite party, it is relevant to note, the legal position. <br /> <br /> 8. The Hon’ble Apex Court in AIR 2004 SC 1840 held that <br /> “It was held that the decisive test is not the complicated nature of the questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by the summary enquiry i.e., by doing away with the need of a detailed and complicated method of recording evidence. It has to be remembers that the FORA under the Act at every level are headed by experienced persons. The N.C. is headed by a person who is or has been a judge of Supreme Court. The State Commission is headed by a person who is or has been a judge of the High Court. Each District Forum is headed by a person who is or has been or is qualified to a District Judge. Mere complication either of facts or of law cannot be a ground for the denial of hearing by a Forum under the Act.”<br /> <br /> 9. Further, it is relevant to note the observation of the Hon’ble Apex Court in the ruling reported in AIR 2004 SC 448 that<br /> “From the statement of objects and reasons and the scheme of Consumer Protection Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and far that purpose to provide for better redressal mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. As per section 3 of the CP Act the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional / extended jurisdiction particularly when S. 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar.”<br /> <br /> 10. In view of the law laid down by the Hon’ble Apex Court and the nature of the case on hand, as well as the facts, contentions and the material placed on record, we are of the considered opinion that, the dispute raised by the complainants can be very well decided by this Forum and consequently, the complaint is maintainable.<br /> <br /> 11. Another contention raised by the opposite party further needs to be considered first. According to the complainants, the deceased insured died on account of sun stroke. The opposite party with reference to the terms and conditions of the policy, has contended that, sun stroke cannot be termed as an accident and hence, the complaint is not maintainable. In this regard, it is suffice to note the order of the Hon’ble National Commission relied upon by the learned advocate for the complainants in Revision Petition No.973/07 dated 24.10.2007 in Rita Devi Vs. National Insurance Company Ltd., and others. The Hon’ble National Commission has dealt within detail the meaning of accident. Number of decisions of various courts including that of the Hon’ble Apex Court of India are considered and concluded that<br /> “From the aforesaid law developed in other countries and in this country, it is clear that the injury or death caused by lightening, sun-stroke or earthquake has been held to be accidental. Further, where a man in the course of his work is exposed to excessive heat coming from a boiler and becomes exhausted and death occurs, it would be an accidental death. Similarly, a person working in a icy cold water and thereafter, sustains pneumonia which causes his death, such death is also considered to be an accidental death. Similarly, if the assured is seized by a fit and drowns or falls in front of a train and killed, death is due to external cause and is an accidental death. Death resulting from the threats by miscreants is also considered to be an accidental caused by external violence and visible means. In substance, death which does not occur in the usual course or natural course of events or event/causes which could not be reasonably anticipated is considered to be accidental one.”(underline is ours)<br /> Hence, sun stroke has been considered as an accident. In another ruling reported in United India Insurance Company Ltd., Vs. Salimadugu Rathamma and others in FA No.1705/06 in the order dated 21.12.2009. Hon’ble Andhrapradesh State Commission has also dealt with particularly regarding sun stroke and has held that, it amounts to an accident. In view of the legal position noted above, the contention of the opposite party cannot be accepted.<br /> <br /> 12. So far concerned to the fact that, the first complainant took the group insurance policy in question and that the deceased was covered by the said policy and that the policy was valid as on the date of death of the deceased and so also, the death of the deceased, is not in dispute.<br /> <br /> 13. According to the complainants, the deceased while on duty at Caddulore sales unit on 15.05.2008, suffered sun stroke while walking to reach a customers place, suffered sun stroke and died at about 11.00 am. This fact is stated by the account officer of the first complainant, the second complainant wife of the deceased and one Mr.Ramamurthy, Sales Manager of the first complainant. Statement of these witnesses is supported by the certificate issued by the doctor by name Mr.Srinivasan, which is produced by the complainants as Annexure-B at red ink page 76 of the file. In this medical certificate, the doctor has certified that the deceased died due to excessive dehydration and hyperthermo due to exposed to sun – sun stroke. Considering the oral statement of the witness referred to above and the medical certificate issued by the doctor, prima-facie the complainants have made out that the deceased died due to sun stroke.<br /> <br /> 14. The death took place on 15.05.2008. So far concerned to the date of death, there is no dispute. On the same day, the first complainant informed the opposite party regarding death of the deceased with reference to personal accident policy and the copy of the said letter is at red ink page 68 of the file. ON 19.05.2008, the claim form has been received by the opposite party. Copy of the said claim form is at red ink page 74 of the file. In this claim form, there is specific mention that the deceased died due to sun stroke. Thereafter, on 19.05.2008, opposite party wrote a letter to the first complainant requesting to comply the formalities mentioned in the letter. Copy of the said letter is at red ink page 70 of the file. Complying the said letter, the first complainant wrote to the opposite party and copy of the said letter is at red ink page 72 of the file. The opposite party had requested the first complainant to produce FIR and PM report. Except these documents, other information called for was furnished. Then, by the letter dated 15.07.2008 copy of which is at red ink page 86 of the file. The opposite party again informed the first complainant that FIR and PM report are mandatory and it is stated in the letter that, since PM will establish exact cause of death, production of the documents is necessary and in the absence of the documents, the opposite party is unable to admit the claim. This letter has been received by the first complainant on 29.07.2008, copy of the reply is at red ink page 88 of the file. It is informed through this reply to the opposite party that, since death was only unnatural in nature, there was no FIR and PM was not conducted due to religious sentiment, of the family members. Ultimately, by the letter dated 07.08.2008 copy of which is at red ink page 92 of file, the opposite party informed the first complainant that insured person shall sustain any bodily injury resulting solely and directly from accident caused by external violent and visible means only. To establish cause of death, FIR and PM are required which are given as in accident cases. Also, it is stated, in case the first complainant feel in justice, may approach grievance cell. In this manner, ultimately the claim has been repudiated. <br /> <br /> 15. As could be seen from the correspondence between the parties referred to in the above paragraph, the opposite party repudiated the claim mainly on the ground that FIR and the PM report were not produced, which are generally produced in accident cases. In this regard, first of all we have to keep in mind, the circumstances under which the deceased died. In the order of the Hon’ble A.P.State Commission which has been relied upon by the learned advocate for the complainants cited supra, on page 6, has observed that, <br /> “There is no pre condition that these instances which accident by sun stroke, heat wave and cold etc., have to be reported to the police and that there shall be an enquiry by police………”.<br /> <br /> Considering this observation, the Hon’ble State Commission as well as the circumstances of the facts of the particular case shall have to be appreciated on the basis of the material on record and not only because FIR or PM report were not produced, is no ground to deny the claim.<br /> <br /> 16. Let us now consider the defence and the contention of the opposite party on the point. In this regard, it is important to note that, on 14.12.2009 the opposite party had filed version and later on 12.01.2010, an interim application was filed to get the version amended and that application has been allowed. Hence, what was the contention of the opposite party in the earlier version and after the amendment, needs to be considered.<br /> <br /> 17. Here before, we have referred to the correspondence between the parties and from the letter of the opposite party dated 07.08.2008, it can be seen that the opposite party repudiated the claim of the complainants mainly on the ground that the insured person shall sustain bodily injury resulting solely and directly from accident by external violent and visible means only. In other words, the opposite party denied the claim of the complainants on the ground that the accident was not caused by external violent or visible means resulting death of the deceased. But, as noted here before with reference to the decision of the Hon’ble National Commission and the Hon’ble A.P.State Commission, sun stroke amounts to an accident. Before lodging the complaint, notice was sent by the first complainant to the opposite party and that has been replied on 15.04.2009 itself, wherein also, in the third paragraph specifically the opposite party had contended that sun stroke cannot be construed as an accidental death. That was the contention of the opposite party even much prior to filing of the present complaint. The opposite party filed the version wherein also, it was contended that sun stroke cannot be construed as accidental death. But, later the opposite party got the version amended at in paragraph 5 (A). By the said amendment, the opposite party denied that the deceased died due to sun stroke. At the cost of repetition as noted earlier, death of the deceased on account of sun stroke was not denied. But, it was contended that, sun stroke cannot be considered as accidental death. By the amendment, further opposite party contended that, the investigation conducted revealed that the deceased developed uneasiness while he was in the house and the doctor called to the house of the deceased, who was in critical condition and died immediately. In this regard, the very same doctor who has issued certificate earlier, has also issued a certificate. It is stated, during the course of investigation, statements were recorded, which are inconsistent and hence, the same give rise to a doubt as to the place of death. As noted above, on 16.11.2009 complaint was filed and on 14.12.2009 opposite party had filed it’s version and on 12.01.2010 application for amendment of the version was filed and it was allowed. The investigation report is dated 05.01.2010. It is subsequent to filing of the version. The statements of some persons have been recorded on 22.12.2009 and the certificate of the doctor has been obtained on 22.12.2009. Certificate from general hospital was obtained on 29.01.2010. These all have taken place after the opposite party had filed the version. On the basis of the investigation report and other material, the opposite party got the version amended and put forth the contention as noted above. In this regard, advocate for the complainants submitted that the said entire facts and evidence has been improved and created by the opposite party just to deny the claim of the complainants. Considering the earlier stand that the opposite party had taken during the course of correspondence and the stand that was taken in the version, which was filed for the first time, is not consistent with the subsequent amended version.<br /> <br /> 18. It is relevant to note that, all along the opposite party had put forth that the FIR and the PM report are necessary to ascertain the cause of death. Regarding cause of death, the doctor has issued certificate on the date of death itself to the effect that, it was due to sun stroke. It is true, opposite party has also obtained certificate from the said doctor nearly after about 7 months. So also as noted above, the investigation report is dated 05.01.2010. It is important to note that, on the date of death itself, the first complainant reported the death to the opposite party. After bout 15 days from the date of the death, claim petition was submitted. Thereafter, there was some correspondence between the parties, which have been already noted. Till filing the complaint and even filing the version, the opposite party did not specifically disputed the cause of death, but it was contended that sun stroke is not an accident. Later, the opposite party deviated the stand as noted above. With reference to the statement of some of the witnesses said to have been recorded by the investigation officer, it is submitted for the opposite party that, it will give rise to doubt about the place of death. That is pleaded in the version also. Firstly, it is relevant to note that, in the present case, we are not concerned much about place of death, but only about cause of death. Even assuming that, there is some inconsistent statement regarding the place of death, on scrutiny of the entire material on record, we found no doubt as regards cause of death. All along there is consistent stand taken by the complainants in respect of cause of death. So also, we would like to note here that, this is not a criminal case to hold the particular person guilty or otherwise. In criminal case, to establish guilt of the person, offence shall have to be proved beyond all reasonable doubts. In such a situation, regarding place of death or doubt regarding the place may have some relevancy. As regard, the certificate issued by the very same doctor that has been produced by the opposite party, there is mention that the doctor himself went to the house of the deceased etc., But, from that certificate, it cannot be made out that, the deceased did not die due to sun stroke. Moreover, as noted above, earliest certificate issued by the said doctor has to be prevailed to the subsequent one that too the subsequent certificate having been obtained after filing the complaint and so also, the version. Considering these aspects, we feel it not necessary to mention each and every inconsistency in the statement of the witnesses regarding place of death, as contended by the opposite party. Moreover, it is relevant to note that, wife of the deceased in her additional affidavit, has stated on oath that no investigation as contended by the opposite party has been done and the opposite party has obtained a false medical certificate from the doctor only to suit their case. In view of this statement made by the second complainant on oath and in the absence of counter affidavit from the doctor or any other cogent evidence, the case put forth by the complainants shall have to be believed.<br /> <br /> 19. The insured amount claimed by the complainants is Rs.2,32,000/- and Rs.4,00,000/-. This fact is not disputed. Hence, complainants 2 to 4 the wife and the children of the deceased, are entitled to the said insured amount.<br /> <br /> 20. Considering the facts, evidence and the discussion made here before, we are of the opinion that the complainants have proved deficiency in service on the part of the opposite party.<br /> <br /> 21. Accordingly, our finding on the above point is partly in affirmative.<br /> <br /> 22. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite party is hereby directed to pay a sum of Rs.2,32,000/- and Rs.4,00,000/- to the complainants 2 to 4 along with interest at the rate of 12% p.a. from the date of receipt of the claim petition that is 19.05.2008, till realization.<br /> 3. Out of the said insurance amount with proportionate accrued interest, 2/3rd amount shall be kept in F.D. in any of the nationalized bank, the share of the third and fourth complainants, who are minors, till they attain majority.<br /> 4. The opposite party shall deposit this 2/3rd amount in this Forum with due notice to the second complainant and that amount will be kept in F.D. in the bank that the second complainant suggest.<br /> 5. The opposite party is directed to pay 1/3rd amount to the second complainant and further, deposit 2/3rd amount pertaining to third and fourth complainants in this Forum, within a month from the date of this order.<br /> 6. The opposite party shall further pay a sum of Rs.5,000/- towards cost of the proceedings to the second complainant.<br /> 7. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 3rd March 2010)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />