Sri.Siddegowda,<br /> President<br /> <br /> 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, for settlement of insurance claim of Rs.10 lakhs.<br /> 2. The facts of the complaint are thus; <br /> T.Shankaraiah, the father of the complainants had obtained Janatha Personal Accident Insurance Policy from the Opposite party Insurance Company for a sum of Rs.10 lakhs, unfortunately the assured, on 31.10.2004 accidentally fell down from the stair case of his house and he sustained injuries over chest and head and then he was admitted to the hospital, wherein he succumbed to injuries on 01.11.2004 inspite of best medical treatment. The dead body was cremated without subjecting for post mortem examination, in view of the community custom. While cleaning their house for Ganesha Chathurthi, the insurance bond was found and the complainants came to know the insurance bond obtained their father and then they gave requisition to Opposite party on 11.09.2007 claiming the insurance amount. The Opposite party issued claim form to submit along with the necessary documents. In spite of it, the Opposite party have not settled the claim and therefore, the complainants made correspondence on 28.11.2007 and thereafter legal notice dated 24.12.2007 was sent and then Opposite party issued a letter on 26.12.2007 assuring that after getting the documents and clarification, the matter will be proceeded. After waiting for 1 ½ months, again another legal notice dated 20.03.2008 was sent, but Opposite party sent repudiation letter dated 26.03.2008, stating that death was not reported to the Police and FIR and Post Mortem was not submitted and on investigation it was found that Late Shankaraiah had been admitted to Prashanth Nursing Home on 30.10.2004 and died due to Cardiac Arrest on 01.11.2004. The reasons assigned in the repudiation letter are imaginary and fabricated and therefore the Opposite has committed deficiency in service and hence the complaint.<br /> 3. The Opposite party has filed version denying that the complainant’s father accidentally fell down from the staircase of his house on 31.10.2004 and that as a result he sustained injuries over his chest and head. It is denied that the complainant came to know the policy bond at the time of cleaning their house. It is admitted that one T.Shankaraiah had obtained J.P.A Policy and it was in force when the insured died. The death of the insured was informed to the Opposite party and claim was lodged and Opposite party insisted for production of FIR, P.M. Report and other Policy documents. On investigation made by the investigator appointed by the Opposite party, it was found that the insured had suffered cardiac arrest and consequently he was admitted to Prashanth Nursing Home, Mandya where he succumbed to the said ailment. As such, the insured did not die as a result of an accident, but suffered a natural death as a result of cardiac arrest. The complainant did not produce documents to show the accidental death. In view of the conditions of the policy, since the death is not accidental one, the claim was repudiated. There is no delay or deficiency in service. Though, the insured died on 01.11.2004 the claim made after nearly 3 years is highly belated and cannot be entertained. Therefore, the complainant is liable to be dismissed with costs.<br /> 4. During trail, the Complainant is examined as CW.1 along with three witnesses and got marked Ex.C.1 to C.9. On behalf of the Opposite party is examined along with two witnesses and produced Ex.R.1 to R.15.<br /> 5. We have heard both sides.<br /> 6. Now the points that arise for our considerations are:-<br /> 1) Whether the assured T.Shankaraiah died due to an accident?<br /> 2) Whether the repudiation is proper?<br /> 3) Whether the complainants are entitled to insurance amount?<br /> 4) What order?<br /> 7. Our findings and reasons are as here under:-<br /> 8. POINTS No.1 to 4:- The undisputed facts are that, T.Shankaraiah father of the complainant’s had obtained a J.P.A. Policy as per Ex.R.12 on 08.02.1999 and it was valid from up to 08.02.2011 and the insurance policy is for Rs.10 lakhs. It is an admitted fact that the deceased T.Shankaraiah died on 01.11.2004 in the Prashanth Medical Services (Nursing Home, Mandya).<br /> 9. According to the complainants, the deceased T.Shankaraiah accidentally fell down from the staircase of his house on 31.10.2004 and sustained injuries over his chest and head and he was admitted to hospital and he succumbed to injuries on 01.11.2004, in spite of treatment, but the Opposite party has denied the same and according to the Opposite party the assured was admitted to Prashanth Nursing Home due to cardiac arrest and died on account of the cardiac arrest. The fact that the assured was admitted to Prashanth Medical Service (Nursing Home) belonging to RW.2 Dr.B.S.Kakkilaya is not disputed. Admittedly with regard to the accidental death, the complainants have not reported to the police not subjected the dead body for post mortem examination.<br /> 10. To prove that the deceased fell down accidentally from the staircase of his house and admitted to hospital, apart from the 1st complainant, they have examined 3 witnesses namely K.B.Dwaraka, S.K.Narasaiah and S.P.Ravi and these witnesses have issued a certificate Ex.C.7. If we consider the certificate of Ex.C.7, it is a letter of Village Panchayath, Sathanur, but it is dated 16.02.2008 and this certificate was not obtained when the insured died. We cannot understand on what basis without any entry in the records of the Panchayath and without the signature of the Secretary of the Village Panchayath, this certificate came to existence. It is further peculiar that using the seal of President and Vice President of the Village Panchayath, they have inserted in hand writing ÀЦѣ (Ex-President & Ex-Vice President). So this Ex.C.7 cannot be used in evidence at all and it is not issued by proper authority. The evidence of witness Sri.Dwaraka cannot be accepted for the reason he was not present when the assured fell down and he further deposed that he does not no that deceased T.Shankaraiah was having heart problem and therefore he was admitted to Prashanth Nursing Home. Coming to the evidence of another witness S.K.Narasaiah who has signed a document Ex.C.7 as a Ex-Vice President of the Village Panchayath, his evidence also cannot be relied upon because he was not present and he is not eye witness at the time of fall and he is not definite whether the death of T.Shankaraiah (assured) is natural or un-natural. Further, he deposed that he accompanied the assured to the hospital and the men of Shankaraiah informed the incident to the doctor. Further, the witness S.P.Ravi is also not eye witness but he is a hearsay witness and he does not know whether Shankaraiah had heart disease and therefore he died. Though, these three witnesses have stated in their affidavit that Shankaraiah had sustained injury to head and chest, they have not deposed whether Shankaraiah had sustained bleeding injury to head, but the 1st Complainant has gone to extent of deposing that his father sustained bleeding injury to head apart from injury to the chest. It is an admitted fact that he was admitted to Prashanth Medical Services and the complainants have produced Ex.C.8 the certified copy of the case sheet of Shankaraiah. RW.2 Dr.B.S.Kakkilaya who runs this Nursing Home is examined and has produced original case sheet marked as Ex.R.9(a) and deposed the contents of the case sheet though he has not treated the patient. The decision of the Hon’ble Supreme Court in AIR 1983 SC page 66 in the case of Mayur Panabhai Shah –Vs- State of Gujarat, relied upon by the learned counsel for the complainant is not helpful, because it pertains to a criminal case where the proof should be beyond reasonable doubt. Of course, the evidence of the doctor has to be appreciated like that of any other witness. In the present case RW.2 has produced the case sheet of the insured and on that basis he has deposed. As per his evidence Dr.Nagaraj, the Partner of this Nursing Home admitted the patient and then Dr.Prasanna Kumar, Physician also treated him. Of course, this RW.2 has not treated the insured, but he has produced the case sheet Ex.R.9(a) the copy of which is produced by the complainant as per Ex.C.8 and Opposite party has produced Ex.R.9. As per entries in the case sheet, the assured was admitted with the history breathlessness, since evening and also history of COPD (Chronic obstructive pulmonary disease) with RA (Dramatic arthritis) and the deceased was admitted to Nursing Home on 31.10.2004 at 8.00 p.m. and admittedly on 01.11.2004 died in the Nursing Home. The case sheet reveals that the patient expired, two doctors have treated the insured in the Nursing Home and made entries. Even though, the doctors are not examined, but Ex.R.9(a) is original case sheet and the entry cannot be rejected from evidence merely because, the doctors who treated are not examined and copy of the second page was not issued in Ex.C.8. In III 2003 CPJ page 15, the Hon’ble National Commission has held that even though a Doctor is examined, but we must give weight to the statement recorded in the normal course of discharge of once duty. The contention of the complainant side that entire case sheet is created in collusion with the Opposite party cannot be accepted at all, in view of the writings made in Ex.R.9(a).<br /> 11. Further, if actually the insured had sustained head injury, the Doctor who admitted the insured to the Nursing Home should have mentioned the injuries in the case sheet, but the reasons for the admission to the Nursing Home is clearly recorded and there is no mention of injury to head.<br /> 12. Further, it is pertinent to note that though the insured died on 01.11.2004 the insurance claim was made for the first time on 11.09.2007 that is nearly 3 years. The explanation given by the complainants in the complaint and evidence cannot be believed, because the insurance bond will be a important document and it will be kept safely with other important documents. In the complaint, it is stated that when they were cleaning the house for Ganesha Chathurthi they found the insurance bond and then on 11.09.2007 as per Ex.C.1 they claimed the insurance. Can it be said that for nearly 3 years, the house was cleaned during the festivals. Insurance bond is not an ordinary paper to be kept somewhere and hence the reason given by the complainants cannot be believed and after only 3 years they made attempt to claim the insurance just to test their imaginary luck. The curiosity of the complainant in giving application as Ex.C.1 on 11.09.2007 and again on 28.11.2007 and again legal notice dated 24.12.2007 and again legal notice dated 23.02.2008 reveals that they were egger to get the insurance amount concealing the true facts. In fact in Ex.C.4 the reply, the Opposite party has stated that the claim was reported after a lapse of more than 3 years by the son of insured and though he was requested to submit P.M.Report and FIR, they are not submitted till date and they are conducting investigation by appointing investigator. In the complaint or in the evidence or in the legal notice or letters they have not stated at what time of the day the insured accidentally fell down from the staircase. On the other hand, the Opposite party appointed a investigator RW.3 and has visited the village and recorded the statement of 3 villagers and obtained the signature and submitted the investigation report Ex.R.11 and this RW.3 is appointed by the Opposite party to investigate the claim and he has collected the copy of the case sheet from the Nursing Home as per Ex.R.9 and Ex.R.8 is the statement given by the villagers according to him. Even though, RW.3 has not put a signature, there is no reason to disbelieve the Ex.R.8 statement addressed to the Opposite party in view of the circumstances of the case. <br /> 13. Under these circumstances, the complainants have failed to prove that the assured T.Shankaraiah died due to accident, but on the other hand, the Opposite party has proved that was due to cardiac arrest.<br /> 14. Since, the insurance policy is for the accident, since the death is not proved to be accidental one, the complainants are not entitled to the insurance claim. Therefore, we hold that the repudiation of the claim is proper.<br /> 15. In the result, we proceed to pass the following order;<br /> ORDER<br /> The complaint is dismissed. However, there is no order as to cost. <br /> <br /> (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 25th day of July 2008).<br /> <br /> (PRESIDENT)<br /> (MEMBER) (MEMBER)<br />