KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 102/2005 JUDGMENT DATED: 16-01-2010 PRESENT: SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER SHRI. M.K. ABDULLA SONA : MEMBER APPELLANT The Manager, United India Insurance Co. Ltd., Padmavathi Commercial Complex, M.G. Road, Kasaragod, KCC No. 117. (Rep. by Adv. Sri. Lakshmanan. T.J) Vs RESPONDENTS 1. P. Subramanya Bhat, S/o Krishna Bhat, Thekkekkara House, Karadka P.O., Kasaragod Dist. 2. P. Krishna Bhat, S/o Subramanya Bhat, Thekkekkara House, Karadka P.O., Kasaragod Dist. 3. Smt. Parameshwari, W/o Ganapathi Bhat, Thekkekkara House, Karadka P.O., Kasaragod Dist. 4. Smt. Rajalakshmi, W/o Seetharama Bhat, Thekkekkara House, Karadka P.O., Kasaragod Dist. 5. The Secretary, Kadakam Service Co-operative Bank Ltd., Mulleria P.O., Kasaragod. (R1 to R4 rep. by Adv. Somanadhan Anila) (R5 rep. by Adv. Gautham M.S) JUDGMENT SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The appellant was the first opposite party and the respondents 1 to 4 were the complainants and the 5th respondent was the second opposite party in OP No. 3/2004 on the file of CDRF, Kasaragod. The complaint in the said OP No. 03/2004 was filed alleging deficiency of service on the part of the opposite parties in repudiating the insurance claim put forward by the complainants in their capacity as the legal heirs of the insured Shankari Amma. The opposite parties 1 and 2 entered appearance before the Forum below and filed separate written versions. The first opposite party United India Insurance Company Ltd. justified their action in repudiating the insurance claim. They contended that the death of the insured Shankari Amma was not an accidental death so as to get the insurance claim. The first opposite party contended that the said death of Shankari Amma was not covered under the policy of insurance. The second opposite party contended that there was no deficiency of service on their part; that the insurance claim submitted by the complainants was forwarded to the first opposite party and that the first opposite party repudiated the claim and intimated the fact. Thus, the second opposite party prayed for dismissal of the complaint filed against him. 2. Before the Forum below, the first complainant was examined as PW1. Exts. A1 to A4 documents were also marked on the side of the complainants. From the side of the first opposite party DW1, Dr. Chakrapani. M was examined. Exts. B1 to B4 documents were also marked on the side of the first opposite party. On an appreciation of the evidence on record, the Forum below allowed the complaint in OP 03/2004 and thereby the opposite parties are made jointly and severally liable to pay the insurance amount of Rs. 50,000/- to the complainants with interest at the rate of 12% per annum from 23-10-2003, the date of repudiation till realization. Aggrieved by the said order dated 30th September 2004 passed by CDRF, Kazaragod in OP No. 03/2004, the present appeal is filed by the first opposite party, the Manager, United India Insurance Company Ltd., Kasaragod. 3. We heard both sides. The learned Counsel for the appellant/1st opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on B1 death report issued from Kasthurba Medical College and Diagnostic Centre and Hospital, Mangalore and B4 certificate dated 17-05-2004 issued by Dr. Chakrapani. M, Professor and Head of Department of Medicine, KMC Hospital, Mangalore and also the testimony of DW1, Dr. Chakrapani.M. He canvassed for the position that deceased Shankari Amma, the insured died due to intra cerebral bleed and that the intra cerebral bleed occurred due to hypertension. It is further submitted that there is nothing on record to substantiate the case of the complainant that the insured Shankari Amma died due to fall in her house on 17-08-2003. He challenged the impugned order passed by the Forum below finding that the insured Shankari Amma had an accidental death due to fall. Thus, the appellant/first opposite party prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned Counsel for the respondents 1 to 4 (complainants 1 to 4 in OP No. 03/2004) supported the impugned order passed by the Forum below. It is further submitted that the insured Shankari Amma had a fall at her residence on 17-08-2003 and as a result of the said fall, she sustained intra cerebral bleed, which resulted in her death on 18-08-2003. It is further submitted that there is nothing on record to support B4 certificate that the intra cerebral bleed occurred due to hypertension or that the insured Shankari Amma was suffering from hypertension. Thus, the respondents 1 to 4 prayed for dismissal of the present appeal. The 5th respondent supported the case of the appellant/first opposite party. It is further submitted that there was no deficiency of service on the part of the second opposite party. 4. The points that arise for consideration are: 1. Whether the appellant/first opposite party can be justified in repudiating the insurance claim put forward by the respondents 1 to 4 (complainants 1 to 4 in OP 03/2004)? 2. Whether the death of Shankari Amma, insured can be treated as an accidental death covered by the policy of insurance issued by the first opposite party United India Insurance Company Ltd.? 3. Is there any sustainable ground to interfere with the impugned order dated 30th September 2004 passed by CDRF, Kasaragod in OP No. 03/2004? 5. Point Nos. 1 to 3: For the sake of convenience, we are pleased to refer the parties to this appeal according to their rank and status before the Forum below in OP No. 03/2004. 6. There is no dispute that the insured Shankari Amma was covered by the accidental insurance policy issued by the first opposite party United India Insurance Company Ltd. Ext.B3 is the insurance policy issued by the first opposite party Insurance Company. The aforesaid policy was issued at the instance of the second opposite party in favour of the Kisan Credit Card Holders. Admittedly, Shankari Amma was a Kisan Credit Card Holder with No. CC 117. As per the aforesaid policy of insurance, the insured Shankari Amma was covered by the said policy and by virtue of the said policy, on the accidental death of the insured, the legal heirs of the insured are entitled to get the insured amount of Rs. 50,000/-. There is no dispute that the complainants 1 to 4 are the legal heirs of deceased Shankari Amma who died on 18-08-2004. B1 is the death report issued from KMC Hospital, Mangalore. Moreover, there is no dispute that the insured Shankari Amma died on 18-08-2003 while she was undergoing treatment at University Medical Centre, Mangalore. 7. The definite case of the complainants is that the insured Shankari Amma had a fall on 17-08-2003 while she was engaged in her routine work at her residence and as a result of the said fall she became disoriented and her sensorium was deteriorated and she became unconscious. Thereby she was taken to University Medical Centre, Mangalore and admitted as an inpatient and all the attempts to save her life were futile and she died on 18-08-2003 due to intra cerebral bleed. On the other hand, the first opposite party United India Insurance Company Ltd. contended that the insured Shankari Amma was suffering from hypertension for the last 5 years and she had intracerebral bleed due to the said hypertension and she died on 18-08-2003 due to intra cerebral bleed due to hyper tension. So, the material and crucial aspect for consideration is as to whether the insured Shankari Amma had the intracerebral bleed due to fall on 17-08-2003 or that she had intracerebral bleed due to hypertension. It is also to be considered as to whether the insured Shankari Amma was suffering from hypertension for the last 5 years and as a result of that hypertension she had intracerebral bleed which resulted in her death on 18-08-2003. 8. The first opposite party much relied on B1 death report and B4 certificate issued by DW1 Dr. Chakrapani.M. B4 certificate is dated 17-05-2004. As per B4 certificate it is stated that Mrs. Shankari Amma was admitted to KMC Hospital on 17-08-2004; that she was found to be suffering from intracerebral bleed due to hypertension; that investigation did not reveal any evidence of injury; that she was diagnosed and treated as a case of stroke (CVA). The date of admission of Shankari Amma noted as 17-08-2004 might be a mistake. The exact date can only be 17-08-2003. Ext.A3 death summary issued from University Medical Centre, Mangalore would show that the patient was admitted there on 17-08-2003 and the patient had a fall on 17-08-2003. Ext,B1 is the death report issued from KMC Hospital, Mangalore. B1 report would show that the patient was admitted on 17-08-2003 in ICU and died on 18-08-2003 at 07.30 hours. The patient was treated under the Department of Medicine. The deceased was aged 63 years. The cause of death is shown as intracerebral bleed. So, B1 death report would make it clear that the death of insured Shankari Amma occurred due to intra cerebral bleed. There is nothing in B1 death report that intracerebral bleed has occurred due to hypertension. 9. The doctor who issued B4 certificate has been examined as DW1. The Forum below considered the testimony of DW1. It is come out in evidence that DW1 Dr. Chakrapani had no occasion to treat the patient Shankari Amma for hypertension. His evidence would show that the history of hypertension was given by the bystander. But at the same time, DW1 has categorically admitted the fact that he was not told by the bystander about the history of hypertension. It is also admitted by DW1 that the history of hypertension of the patient was recorded by the duty doctor. It is to be noted that the duty doctor has not been examined in this case. Thus, there is nothing on record to support the case of DW1 that the patient was having the history of hypertension. It is to be noted that there is no document forthcoming from the side of the first opposite party to substantiate their contention that the insured was suffering from hypertension. Had there been any treatment for hypertension, there will be document evidencing the same. But, there is no whisper in any of the document regarding the alleged treatment of insured Shankari Amma for hypertension. On the other hand, PW1 the first complainant has categorically deposed that the insured Shankari Amma had no such ailment of hypertension. It is to be noted that PW1 is the husband of the insured Shankari Amma. He categorically denied the suggestion that Shankari Amma was suffering from hypertension. There is no ground to disbelieve the testimony of PW1. It is also to be noted that it is rather impossible for the complainants to prove a negative aspect. Then, it is for the first opposite party to prove the positive aspect regarding the ailment of hypertension said to have been suffered by the insured Shankari Amma. It is the case of the first opposite party that Shankari Amma was suffering from hypertension. Then, it is for the first opposite party to substantiate the said contention by adducing positive evidence. But, no such evidence is forthcoming from the side of the first opposite party. So, the only course available is to accept the testimony of PW1 that the insured Shankari Amma was not having any such ailment of hypertension. 10. DW1, the expert doctor has deposed that intra cerebral bleed can be occurred due to hypertension. It is also deposed by DW1 that intracerebral bleed can be caused due to fall. One thing is crystal clear that the insured Shankari Amma had intracerebral bleed and her cause of death was intra cerebral bleeding. According to DW1, there are two possibilities for intracerebral bleed. One is due to hypertension and the other is due to fall. The definite case of the complainant is that the insured Shankari Amma had a fall on 17-08-2003 while she was engaged in her routine household duties and as a result of the said fall she became disoriented and unconscious and ultimately it resulted in her death on 18-08-2003. There is no contra evidence to disbelieve the case of the complainants. The first complainant has also deposed about the incident of fall which occurred on 17-08-2003 at the residence of the insured Shankari Amma and the ultimate death of Shankari Amma on 18-08-2003. PW1 is an eyewitness to the incident. There is no reason or ground to disbelieve the testimony of PW1. The evidence of DW1 would also support the case of PW1 to some extent. DW1 could not deny the suggestion that the intracerebral bleed occurred due to the fall. The first opposite party Insurance Company could not substantiate their case that the insured Shankari Amma had the fall due to intracerebral bleed and that the intracerebral bleed occurred due to hypertension. Considering the entire facts, circumstances and evidence on record, the possibility and probability of fall of the insured Shankari Amma on 17-08-2003 while engaging in routine household duties cannot be ruled out. There is no contra evidence or circumstance available to negative the aforesaid possibility and probability. 11. It is a settled position, when there is ambiguity or doubt then the said ambiguity or doubt should go against the insurer and it should be infavour of the insured (AIR 1966 SC 1644 General Assurance Society Ltd. Vs Chand Mull Jain and Anr,) The Forum below has rightly appreciated the evidence on record in its correct perspective and thereby accepted the case of the complainants that the insured Shankari Amma had an accidental death. 12. The learned Counsel for the appellant/first opposite party much relied on B4 certificate issued by DW1 to the effect that investigation did not reveal any evidence of injury. He also relied on B3 insurance policy and submitted that the policy would cover only accidental death caused by external violent and visible mean. According to the learned Counsel for the appellant, in the absence of any external injury, the death cannot be treated as an accidental death. It is to be noted that the available evidence would show that the insured had a fall and as a result of that fall she had intracerebral bleeding and it ultimately resulted in her death. Thus, the death was caused due to fall. It is held by the Hon’ble Supreme Court in New India Assurance Company Ltd. Vs Zuari Industries Ltd. reported in 2010 CTJ 5 (SC) (CP) that the proximate cause is not the cause nearest in time or place, it is the active and efficient cause. It is also held that the cause that brings about the ultimate result without the intervention of any other force is to be taken as the proximate cause. In the present case on hand, the death of the insured Shankari Amma caused due to fall. So, the proximate cause is the fall, which resulted in her death. The said death can definitely be considered as accidental death due to fall. The Hon’ble National Commission had an occasion to consider the meaning of the words ‘accidental death by external violent and visible means’ in the case of Rita Devi Vs National Insurance Company Ltd. [IV (2007) CPJ 55 (NC)] . It has been held in para 49 of the said judgment “ from the aforesaid law developed in other countries and in this country, it is clear that the injury or death caused by lightning, 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 ice 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 and 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 event or events/causes which could not be reasonably anticipated is considered to be an accidental one. Death due to cold wave it would accidental because all the persons may not get the same effect and it is by natural external violent force. Further, cold wave is an untoward event which is not expected or designed, and an ordinary man could not expect the occurrence”. The aforesaid observations and conclusions made in the aforesaid case (supra) would make it clear that untoward incident which is not natural and unexpected can be treated as accidental. It is to be noted that for an accidental death by visible means it does not require any injury. Death caused by heart attack as a result of the threats from miscreants is also considered to be an accidental death by external violence. In the present case on hand, the death of the insured occurred due to intracerebral bleed resulting in her death. So, in such a circumstance, it can very safely be held that it was an accidental death by violent means. The National Commission considered the dictionary meanings and various case laws and held that the words ‘external’, ‘violent’ and ‘visible’ have been given wide meaning and have been regarded practically as coextensive with the word accidental. It is further held that ‘violent’ does not necessarily imply actual violence. The word violent is merely used in antithesis to without any violence at all. Similarly, ‘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. The aforesaid observations and conclusions of the Hon’ble National Commission in the aforesaid reported case (supra) could also be made applicable in the present case. Thus, the Forum below is perfectly justified in considering the death of the insured Shankari Amma as an accidental death covered by B3 insurance policy. If that be so, the impugned order passed by the Forum below directing the opposite parties to pay the complainants the insured sum of Rs. 50,000/- is to be upheld. We do not find any ground to interfere with the impugned order dated 30-09-2004 passed by CDRF, Kasaragod in OP No. 03/2004. The present appeal deserves dismissal. Hence we do so. These points are answered accordingly. In the result, the appeal is dismissed. The impugned order passed by the Forum below is confirmed. The parties are directed to suffer their respective costs. M.V. VISWANATHAN : JUDICIAL MEMBER M.K. ABDULLA SONA : MEMBER Sr. | 
