PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The present complaint is field by the first Complainant which is a voluntary consumer organization on behalf of the second Complainant who is the actual aggrieved consumer.  In this complaint it is prayed that the Opposite Party be directed to pay Rs.5 Lacs with interest @ 9% p.a. from the date of repudiation of claim i.e. 07/12/2009 till actual payment to the Complainant No.2.  It is also prayed that the Opposite Party be directed to pay Rs.20,000/- as compensation for the harassment for to the Complainant No.2 and cost of this complaint.

 2)        It is submitted that the father of the Complainant No.2 Dr. Shirish Bansilal Vakil (referred to as ‘the Insured’) was covered by the Opposite Party under a Janata Personal Accident Insurance Policy for sum insured of Rs.5 Lacs.  The period of insurance was 12 years from 12/11/1997 to 11/11/2009.  The said policy was assigned in favour of the Complainant No.2.  The copy of the said policy is marked at Exh. ‘A’.

 3)        According to the Complainants the insured was keeping good health and was leading retired life.  On 03/11/2009 late evening the insured was at home, his foot sleeped accidentally over the tiles and he felled as a result the rear portion of his head received a violent impact, however, there was no apparent serious injury that was visible externally.  The insured was on the same night i.e. 3/4 November, 2009 was taken to Bhatia Hospital where a city scan is done but could not be admitted there due to non availability of bed therefore, he was shifted to Sir H.N. Hospital where the hospital registered this case while admitting him as Medico Legal Case due to fall and informed the police also.  The insured was under treatment for two days and then succumbed to his injuries and expired on 06/11/2009 at H.N. Hospital. 

4)        It is alleged that as per the medical record and related documents and police record it was evident that the insured was hospitalized for an accidental fall and the injuries resulting from the said fall. Copies of medical records, related documents including police report are marked at Exh.‘B’ colly.  The claim on the basis of the policy obtained by the insured was though payable, the Opposite Party vide its letter dtd.07/12/2009 repudiated the claim lodged by the Complainant No.2 which is marked as Exh.‘C’ under which it was informed to the Complainant No.2 that the Opposite Party on the basis of the documents filed with claim form on 19/11/2009 in respect of his father it was observed that “the insured due to giddiness fell down causing injuries to head and due to internal blood flow the death has occurred” in the said letter it was informed that “thus, it is clearly evident that there was no accident due to which the death has occurred and as such, the proximate cause of death was solely due to age related health problem which resulted giddiness and fall under cover resulting in internal blood flow due to which the death occurred and thus, the claim is not admissible.”  It is submitted that the Complainant No.2 made a representation against the said repudiation but the Opposite Party reiterated its stand.  The copies of the said letters dtd.13/01/2010 and 24/02/2010 are marked at Exh.‘D’ & ‘E’.  It is submitted that while recording the police statement there was some error in recording about the facts.  The Complainant No.2 when informed to the police the police contacted the eye witness of the incident and corrected their records.  It is the case of the Complainants that the Complainant No.2 approached the Insurance Ombudsman, but his grievance was not redressed, hence, the present complaint is filed for redressal of the grievance of Complainant No.2. 

 5)        It is submitted that the repudiation of claim is illegal, malafide and bad-in-law as the claim was payable because insured died an accidental death due to fall at home which is covered under the policy obtained by the insured.  The repudiation of the claim by the Opposite Party is for flimsy and unattainable reasons which constitutes deficiency in service as well as unfair trade practice. The Complainants have therefore, prayed to grant the reliefs as referred in para 1 of this order.       

6)        The Opposite Party contested the claim by its written statement. It is not disputed that the father of the Complainant No.2 had obtained the policy for Rs.5 Lacs as alleged in the complaint.  It is contended that as per the terms and conditions of the policy if the insured shall sustained any bodily injury resulting solely and directly from the accident caused by any outward violent and visible means then the company shall pay the insured the sum herein after set forth.  It is contended that the diseased who was insured has fell down on the floor on account of giddiness.  It was not an accidental fall. It is contended that the police paper which are filed by the Complainant say different stories.  In the statement of the Complainant it is stated that his father’s legs sleeped on the floor due to which he had to be hospitalized on 05/11/2009 in the morning at about 5.00 a.m. whereas the incident took place on 04/11/09 at about 8.30 p.m. It is contended that in the statement of servant Ganesh of the Complainant it was stated that Insured’s leg slept due to which he fall down and sustained hematoma on the backside of the head and there was bleeding from the same.  The Opposite Party contended that there is discrepancy in the statements given to the police.  It is contended that the hospital authority informed the Complainant that the insured expired at 23.30 p.m. on 06/11/2009.  It is submitted that when the insured was admitted in ICU of Hurkisondas Hospital, how all the members of the family were at home ?  the Opposite Party has therefore, contended that the repudiation is justified.  It was also repudiated by the Insurance Ombudsman.  The Opposite Party therefore, denied the claim made in this complaint and prayed for dismissal of the same with cost.

 7)        The Complainant and Opposite Party filed their affidavits in support of compliant and the written statement.  Both the parties filed their written arguments.  We heard the argument of Jehangir Gai, Representative of the Complainant No.1 and Smt. Deepa Kulkarni, Ld.Advocate for the Opposite Party.  Shri. Jehangir Gai relied the observations in the case of Reeta Devi V/s. National Insurance Co. Ltd., IV (2007) CPJ 355 (NC) and submitted that as observed in the case if the meaning of the accident as considered in the case said would be taken into consideration and the document placed on record alongwith the complaint then the fact that diseased Dr. Shirish Vakil died due to accident can be said proved by the Complainant.  He therefore, submitted that the repudiation communicated by the Opposite Party is therefore, bad-in-law.  The Opposite Party is therefore, liable to pay the claim for deficiency in service and unfair trade practices against the Complainant No.2.  Shri. Gai thus, submitted that the claim made in the complaint be allowed.  Smt. Kulkarni, the Ld.Advocate for the Opposite Party submitted that the Ombudsman did not allow the claim in favour of the Complainant No.2.  She relied the order of Ombudsman dtd.14/06/2010 and submitted that as the diseased did not die due to accident, the complaint is liable to be dismissed.  

 8)    While considering the rival contentions of the parties it is necessary to be seen that in the document issued by H.N. Hospital in respect of cause of death of the insured it is specifically mentioned that “Intracerebral bleed”.  In the statement recorded by Police on 15/01/2010 of Ganesh Bamne, servant working with the Complainant No.2 he has specifically stated that the deceased when approached to him in the bedroom of the Complainant No.2 and made some enquiry with him about what he was doing and then turned for going outside the room of Complainant No.2 at that time his leg was slept and he fell down.  Thereafter, he immediately approached to the insured and pulled him at that time he told that he had sustained head injury and there was some bleeding.  Considering the statement of the eye witness, Ganesh, in our view the repudiation communicated by the Opposite Party as referred above in the letter dtd.07/12/2009 is improper because in the policy there is specific clause that if the insured sustained any bodily injury resulting solely and directly from accident cause by outward violent and visible means then Company shall pay to insure the some set forth in the policy.  In CT-Scan Report at Exh. ‘B’ dtd.05/11/2009 issued by Bhatia General Hospital there is specific mention subdural hematoma of 0.8 cm also seen in (Lt.) Frontoparietal lobe region. The immediate injuries noticed after the accident have been specifically noted in the city scan report issued Bhatia Hospital in respect of the insured.  The Hon’ble National Commission in the case cited Supra held that “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 cause by external violence and visible means.  In substance, death which does not occur in the usual course or natural course of events or events/causes which could not be reasonably anticipated is considered to be accidental one.”  In the said case even death due to cold wave is also held as not natural and it would be accidental because all the persons may not get the same effect and it is by natural external violent force.  The Hon’ble National Commission in the aforesaid case further held that “It is settled law that when two reasonable interpretations of the terms of the policy are possible, the interpretation which favours the insured is to be accepted and not the interpretation which favours the insurance.  Further, the terms of the insurance policy are drafted one sided by the Insurance Company.  Therefore, in case the terms of the policy are vague, benefits should be given to the insured and not to the insurer.”  We therefore, hold that in view of the cause of death mentioned in the Death Certificate issued by H.N. Hospital in respect of the insured and the facts corroborated by oral and documentary statements of the closely related persons such as, Complainant’s son Ganesh Bamne, it can be said that the Complainant No.2 is entitled for the sum insured under the policy filed at Exh.‘A’ which was obtained from the Opposite Party.  In our view the compensation for harassment claimed by the Complainant for deficiency in service and unfair trade practice on the part of the Opposite Party to the tune of Rs.20,000/- is also just and proper.  The Complainant No.2 has claimed interest on the amount of Rs.5 Lacs @ 9% from 07/12/2009 till actual payment in our view it would be just and proper to grant @ 6% p.a. from 07/12/2009 till actual payment.  The Opposite Party is directed to pay cost of Rs.3,000/- to the Complainant No.2.

 9)        The submission made by the Advocate for the Opposite Party that in view of the contrary statements made by the related persons before the police and on that count the repudiation is justifiable is not at all acceptable in view of the medical papers placed on record by the Complainants.  The other submission made by her that in view of the decision of Ombudsman the claim is liable to be rejected also cannot be accepted as the Hon’ble National Commission in the case of Kamleshwari Pasad Sing V/s. National Insurance Co. Ltd., I (2005) CPJ 107 (NC) have observed that “In view of the above discussion it is held that the decision of Ombudsman is not binding on the Complainant and the decision of the Insurance Company to repudiate the claim is subject to adjudication by the Fora constituted under the Consumer Protection Act, 1986.”  We therefore, hold that the complaint is required to be allowed as discussed above. In the result the following order is passed-                                                                  

O R D E R

i.                    Complaint No.41/2011 is partly allowed against Opposite Party.

ii.                 Opposite Party is directed to pay Rs.5,00,000/- (Rs. Five Lacs Only) to the Complainant No.2 with interest @ 6% p.a. from 07/12/2009 till actual payment.

iii.              Opposite Party is directed to pay Rs.20,,000/- (Rs. Twenty Thousand Only) as compensation to the Complainant No.2 towards unfair trade practice adopted against him.

iv.               Opposite Party is directed to pay cost of Rs.3,000/- (Rs. Three Thousand Only) to the Complainant No.2.  

v.                  The Opposite Party is directed to comply with the above order  within one month from the date of service of this order.  

vi.               Certified copies of this order be furnished to the parties.