KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 68/06 JUDGMENT DATED: 02-12-2009 PRESENT: JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT SHRI. M.K. ABDULLA SONA : MEMBER The Branch Manager, The New India Assurance Co. Ltd., : APPELLANT Public Sector Branch, II Floor, Kottarathil Buildings, Palayam, Thiruvananthapuram, represented by its Divisional Manager, The New India Assurance Co. Ltd, Divisional Office No. 1., Kottarathil Buildings, Palayam, Thiruvananthapuram. (Rep. by Adv. Sri. M. Nizamudeen) Vs P. Sulochana, Vazhottupoika Veedu, : RESPONDENT Kuttiyani, Panthalacode P.O., Thiruvananthapuram, now residing at Chempu Panayil Veedu, Pariyaram, Vengode P.O., Nedumangadu, Thiruvananthapuram. (Rep. by Adv. Sri. V. Manikantan Nair) JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT The appellant is the opposite party/New India Assurance Company Ltd., in OP No. 508/02 in the file of CDRF, Thiruvananthapuram. The appellant is under orders to pay a sum of Rs.5,00,000/- within two months and if not with interest at 9% and also to pay Rs.5,000/- as compensation and Rs.1,000/- as cost. 2. It is the case of the complainant that her husband who was working as a mason in Sharjah, U.A.E was the holder of the Pravasi Suraksha PS II insurance policy of the opposite parties. The sum assured was Rs.10,00,000/- for the period from 1/5/02 to 30/4/05. On 4/5/00 he sustained the serious injury due to the penetration of a nail on his right eye while working at a place called ‘DHAID’ in Sharjah. He was taken to the Indian Eye Clinic at Dhaid wherein he underwent preliminary operations to the right eye. On 8/5/00 he was referred to Zulekha Hospital, Sharjah and treated therein till 15/5/00. On 8/5/00 he was subjected to ophthalmic ultrasound scan at Zulekha hospital. The result of the scanning is as follows: The right orbital globe contour is markedly distorted with AP diameter of approximately 24.0 mm. Organised vitreous haemorrhage is seen associated with posterior vitreous detachment and sub-vitreous haemorrhage. The right optic nerve is poorly visualized. The right retina is obscured by the sub-vitreous haemorrhage. The right lens could not be visualized. Left orbital globe appears normal and measures 24.0 mm in the AP axis. The left lens with the iris is normal in location. The extra ocular structures, retro-orbital spaces are distorted on the right side suggesting a retro-orbital component as well. OPINION : Organised vitreous haemorrhage with posterior vitreous detachment and sub-vitreous haemorrhage on the right side with compressed optic head. Due to the sub-vitreous haemorrhage it is hard to comment on the retinal status at present. Corneo scleral wound (sutured), aphasia and amaurosis of right eye were diagnosed at Zulekha Hospital. He was discharged with the direction that he should be released from visual and physical work for six weeks. For getting better treatment he arranged journey to India on 18/5/00. But he died on 17/5/00. His body was brought to Thiruvananthapuram on 23/5/00. In the death certificate issued from the Ministry of Health, Department of Preventive Medicine, U.A.E. brought along with the dead body, the leading cause of death and actual cause of death are mentioned as unknown. The relatives, in order to ascertain the actual cause of death reported the matter to the Vattappara Police Station within the jurisdiction of which the family was residing. Vattappara Police registered Crime No.88/00 and as per requisition dated 23/5/00 postmortem was conducted at Medical College Hospital, Thiruvananthapuram. In the post-mortem report dated 23/5/00 the cause of death was reserved awaiting the report of laboratory investigations. Subsequently on 28/8/00 the doctor of the Department of Forensic Medicine has noted the final opinion; as to cause of death based on post-mortems and results of laboratory examinations as death was due to Interstitial Pneumonia following injury sustained to right eye. The complainant who is the widow of the assured submitted the claim but the same was protracted by the opposite parties seeking documents one after another. The policy was issued from Dubai, U.A.E. Even after the lapse of one year the claim was not settled. So the complainant petitioned to the Chief Minister and other Ministers of the Government of Kerala including Minister for Information, Parliamentary Affairs and Non Resident Keralites Affairs Department. Vide letter dated 04-10-2001 the opposite parties forwarded a voucher for Rs. 5 lakhs directing to return the same duly signed in full and final settlement. It is stated therein that the amount of Rs. 5 lakhs is for complete loss of vision of the right eye due to the reported accident as per Clause 1(3) of the policy. It is also mentioned that the cause of death is not attributable to the eye injury sustained in the accident and as such the death claim is not admissible. The complainant accepted the cheque on 13-10-2001 ie, after a lapse of nearly 1½ years from the date of death of her husband. Her husband had pledged his house and borrowed money from various persons for going abroad. The deceased had left two unmarried daughters. Due to pressing necessity for money the complainant accepted the above said amount for the total loss of vision and not for death of her husband. The opposite parties have misled the complainant and her unmarried daughters. The marriage took place immediately after release of the amount. It is contended that the death was squarely caused due to injuries sustained to the right eye. Hence the claim for release of further assured amount of Rs. 5 lakhs. 3. Opposite parties have filed version contending that the petition is not maintainable as the complainant has accepted Rs. 5 lakhs in full and final settlement of her claims and executed the discharge voucher dated 18-10-2001. The claim was submitted on 01-09-2000. It is after considering the records submitted by the complainant and other reports, considering the close proximity of the claim as the policy commenced on 01-05-2000 and the accident occurred on 04-05-2000 an investigation abroad was arranged. M/s Cormiche Loss Adjustors (LLC), Dubai was appointed as Investigators. The Investigators reported as per report dated 18-02-2001 that there is no clinic by name Indian Eye Clinic in U.A.E and there are no eye clinics in Dhaid. It is also mentioned that on 17-05-2000 when his roommate alerted him in the morning around 06.00 hours to take medicine, he was found dead. He had booked flight ticket to Thiruvananthapuram on 17-05-2000. It was found that the deceased was not experiencing any fever during the night on 16-05-2000. It is further reported that he was not having any other problems except the eye injury. There was no symptoms of pneumonia. The direct cause of death in the death certificate is mentioned as cardio respiratory arrest. The eye injury has no connection with his death. It is at the influence and connivance of the complainant and her relatives that a crime was registered by the Vattappara Police Station authorities and postmortem conducted. The opinion rendered as the result of the postmortem is without any basis and without considering the medical report obtained from Zulekha Hospital, U.A.E. The above report and other relevant records were forwarded by the opposite party to (1) Dr. V. Sahasranamam, Assistant Professor, Regional Institute of Ophthalmology, Thiruvananthapuram. (2) Dr. Suseela B. Nair, Director, Regional Institute of Ophthalmology, Thiruvananthapuram and (3) Dr. K.P. Paulose, retired Professor and Head, Department of Medicine, Medical College, Thiruvananthapuram. The reports of the above doctors produced would establish that it was not on account of the eye injury or the consequence of the same that the husband of the complainant died. It has been specifically mentioned in the letter sent to the complainant dated 04-01-2001 that the death claim is not admissible. It is not mentioned in the medical records issued from Zulekha Hospital on 15-05-2000 that the husband of the complainant required further treatment. The above person decided to come to India only as the doctors at Zulekha Hospital directed that he should not engage in visual and physical work for 6 weeks. The delay in settling the claim was caused only due to the delay in submitting the requisite records. 4. The evidence adduced consisted of the testimony of Ext.P1 to P15, D1 to D15 and the proof affidavits of the respective parties. 5. Ext.P1 is the copy of the policy with respect to the deceased, the complainant and her two daughters. The deceased is mentioned as aged 46 years. Ext.P2 is the medical report dated 15-05-2000 issued from Zulekha Hospital, Sharjah wherein the diagnosis is mentioned as corneo scleral wound (sutured), aphasia, total haemophthalmose about 1/3rd volume dissolved, amaurosis of right eye. The above is the condition noted after trauma and operation on 04-05-2000 at Indian Eye Clinic. Medicines are also seen prescribed. One of the tablets prescribed is for one month. It is also mentioned that the patient should be released from visual and physical work for 6 week. The certificate is dated 15-05-2000. The patient is mentioned as aged 46 years. It is also mentioned that he was treated therein from 08-05-2000 to 15-05-2000. It is also mentioned that he has been consulted, examined and treated therein. Ext.P3 is the Ophthalmic Ultrasound Scan report of Zulekha Hospital. The opinion therein is as mentioned in the complaint. Ext.P5 is the death certificate issued from the Department of Preventive Medicine, Ministry of Health, U.A.E. The date of death is mentioned as 17-05-2000. Direct cause of death is cardio respiratory arrest. The leading cause of death and actual cause of death is mentioned as unknown. Ext.P6 is the death certificate issued from the Consulate General of India wherein the occupation is mentioned as mason. Ext.P7 is the postmortem certificate dated 23-05-2000 issued by the Assistant Professor and Deputy Police Surgeon attached to the Medical College Hospital, Thiruvananthapuram. Opinion as to cause of death is reserved pending the report of laboratory investigations. Ext.P8 is the postmortem certificate dated 28-08-2000 wherein the final opinion as to cause of death is mentioned as interstitial pneumonia following injury sustained to right eye. Ext.P9 is the intimation from the opposite party/appellant dated 14-03-2001 addressed to the complainant directing her to comply with the requirements specified therein within 10 days. Ext.P10 is the letter from the complainant addressed to the appellant dated 22-03-2001 mentioning that she is in dire straits and requesting to sanction the insurance amount. Ext. P10 (a) and P10 (b) are the postal receipts with respect to the forwarding of Ext.P10. Ext.P11 is the representation to the Minister for Pravasi Affairs seeking his interference in getting the insurance claim. Ext.P12 is the copy of the letter dated 23-07-2001 from the Minister for Co-operation and Ports addressed to the Minister for Pravasi Affaires requesting to take steps to get the complainant the insurance amount. Ext.P13 dated 04-10-2001 is the intimation from the appellant to the complainant asking her to return the duly stamped voucher for Rs. 5 lakh. It is also mentioned therein that the cause of death is not attributable to the eye injury sustained in the accident. Ext.P14 and P15 are the marriage certificates of the daughters of the complainant which would show that the marriages were conducted in February and May, 2002. 6. The opposite party has produced the investigation report of Cormiche Loss Adjustors (LLC), Dubai dated 18-12-2000. It is mentioned therein that consequent to the injury an operation was reportedly done at Indian Eye Clinic, Dhaid. It is also mentioned that he was admitted at Zulekha Hospital, Sharjah on 08-05-2000 and discharged on 15-05-2000. It is also mentioned in the report, as gathered from his colleagues that as it was expensive to continue treatment in a private hospital he decided to pursue further treatment in India and had booked a flight ticket to Thiruvananthapuram on 17-05-2000. It is also mentioned that there is no eye clinic named as Indian Eye Clinic in Dubai and that there are no eye clinics in Dhaid. It is mentioned that the treatment records at Zulekha Hospital are proper and the US Scan report is genuine. Further, it is gathered that the deceased was not experiencing any fever during the night on 16-05-2000. Ext.D3 is the copy of the telefax message from Corniche Loss Adjusters (L.L.C) in reply to the queries from the appellant that the deceased was staying in an apartment in Sharjah along with his colleagues and there had been 8 persons in that room who are the employees of Juma Merraj Building Maintenance along with the deceased. Ext.D5 is another telefax message from the above investigating outfit that the deceased was treated as an outpatient at Zulekha Hospital from 08-05-2000 to 15-05-2000. It is also mentioned that there was no symptoms of any other diseases. Ext.D6 is the request from the appellant to Dr. V. Sahasranamam, Assistant Professor, Regional Institute of Ophthalmology, Thiruvananthapuram for his expert opinion as to whether the case of death can be the injury to the right eye developing into infection of the lungs in the form of interstitial pneumonia. The treatment records and the postmortem report and the report of the investigator and also the letter addressed to the Forensic Surgeon who conducted the postmortem report and her reply has been forwarded to Dr. V. Sahasranamam. The request also seeks his opinion as to whether septicaemia can occur within two days leading to death. It is mentioned therein that infection in the eye, spreading to the lungs by septicaemia is not a usual thing though it is not impossible. It is also mentioned that the medicines prescribed at the time of discharge are mainly drugs to counter the post traumatic inflammation in the eye (the fact that there was no IP treatment was not noted by the above expert). It is also mentioned that if septicaemia has occurred there would be other systemic signs like fever etc. which are not seen as per records. It is further mentioned that after discharge on 15-05-2000 the chance of fulminant infection to develop in the eye spreading to the lungs via septicaemia to cause death does not seem highly probable, especially in the absence of systemic signs of septicaemia. 7. Ext.D8 is the letter asking for similar expert opinion from Dr. Suseela B. Nair, Director, Regional Institute of Ophthalmology, Thiruvananthapuram. The relevant records including the letter sent to the Forensic Surgeon who conducted the postmortem and the reply received from her has been sent to the above expert. Ext.D9 is the opinion of Dr. Suseela B. Nair. It is mentioned therein that septicemia following injury to an eye is probable but very uncommon. It is also mentioned that the patient had not shown any sings of frank infection in the eye on 15-05-2000. Hence there is no evidence to suggest that septicaemia must have been the cause of death. It is also mentioned that at the time of discharge the visual acuity of the deceased in the right eye is nil. It appears that the above expert has also considered as if the deceased was an inpatient at Zulekha Hospital. 8. Ext.P10 is the similar request for expert opinion from Dr. K.P. Poulose, Physician. As has been pointed out by the Counsel for the respondent the letter to the Forensic Surgeon and the reply received from her has also been forwarded along with other records to the above doctor. Ext.D11 is the opinion of Dr. K.P. Poulose. Therein also it appears that the above expert has also considered the deceased as he underwent IP treatment. It is mentioned in the report that it is difficult to presume that death has occurred due to sudden development of interstitial pneumonia in two days, presuming that patient was alright at the time of discharge. He has also mentioned that in the postmortem report it is stated that the patient had anthracosis and the findings of the lung under H.P examination are typical of a chronic decease (industrial lung decease). It is also mentioned that following pyophthalmos the patient could have developed septicaemia and if this is correct he would not have been discharged on 15-05-2000 symptom free. Septicaemia could produce pneumonia and or pulm. oedema which can produce death suddenly in which case the patient would never been normal at the time of discharge. Interstitial pneumonia alone secondary to septicaemia is very rare. But acute respiratory syndrome can occur in septicaemia. It is also mentioned that one should presume that the patient was not having any symptoms of septicaemia at the time of discharge as seen from the record. 9. So far as the contention that the death was not on account of the complications developed from the injury sustained to the eye are the opinion of the experts produced by the opposite parties/appellant. As already noted above the above experts were not examined and opinions are based on the report from the Zulekha Hospital which has been marked as Ext.P2 which has been taken as the discharge certificate of the deceased. The experts have presumed that the deceased underwent inpatient treatment from 08-05-2001 to 15-05-2002. Infact, the deceased had only OP consultations as can be seen from the report of the Investigating Agency although it is mentioned in Ext.D1 report of the Investigating Agency that he was admitted at Zulekha Hospital, Sharjah on 08-05-2000 and discharged on 15-05-2000, in Ext.D5 telefax message dated subsequent to Ext.D1 it has been clarified that the deceased was treated as an out patient from 08-05-2000 to 15-05-2000. It is mentioned in Ext.D1 that he booked flight to India as the treatment was expensive in the U.A.E. Evidently, the deceased could not afford the treatment at U.A.E. He was a labourer and shared room with 8 others. He was found dead on 17-05-2000 in the room. Whether he was having fever etc. although not evident from Ext.P2 the medical report from Zulekha Hospital, the same cannot be ruled out. There is no reason to reject Ext.P7 and P8 postmortem reports and the opinion based on laboratory findings also that the death was due to interstitial pneumonia following injury sustained to the eye. It was stressed by the Counsel for the respondent/complainant that the appellant has suppressed the reply received from the Forensic Surgeon to the letter sent by the appellant/Insurance Company. Evidently, the reply would not have been favourable to the appellant. We find that in the absence of direct evidence of the doctors who furnished opinions vide Exts. D7, D9 and D11 and in the absence of clarifications that could have been brought out from them and also in view of the fact that the experts have presumed that the deceased was an inpatient at Zulekha Hospital, Sharjah from 08-05-2000 to 15-05-2000 we find that the above cannot be relied on to non-suit the complainant. We find that the opinion of the Forensic Surgeon who conducted the postmortem has to be treated as having more evidentiary value. We find that the contention of the appellant that it has not been established that the cause of death was the eye injury is liable to be rejected. In the light of the evidence adduced, we find that it has to be collected that cause of death is as mentioned in Exts. P7 and P8 postmortem reports. 10. The other contention is that the complainant has executed the full and final settlement voucher and received Rs. 5 lakhs. Ext.D13 is the above receipt in the printed format that it is agreed to accept the above amount in full satisfaction and discharge of the claim. It is pointed out that the complaint has been filed on 02-12-2002 whereas the discharge voucher is dated 18-10-2001. On the other hand, it was pointed out that it is subsequent to the date of execution of the above voucher that the amount was received. It is further pointed out that it is after more than one year that the amount was given. The complainant is too poor and she had to get married two daughters who got married after receipt of the amount as can be seen from the copies of the marriage certificates produced. It is the contention of the Counsel for the appellant that the complainant had sent representatives even to the Ministries to get the insurance claim. It was under such compelling circumstances and with no alternative left that she was compelled to sign in the discharge voucher and receive the amount offered. The Counsel has also relied on the judgment of the National Commission in FA No. 117/05 dated 26-03-2008 in Abhay Neekwarne Vs. New Indian Assurance Co. Ltd. and Anr. wherein the National Commission has deprecated the practice of protracting the claims and treated the same as a coercive method. The Counsel has also relied on the decision in Col. Bhim Singh Vs. Regional Manager, National Insurance Co. Ltd. and Anr. I (1998) CPJ 2005 (NC) wherein there was a delay of 13 months and the complainant was under the impression that he would have to wait for the insured amount indefinitely. Ofcourse the Counsel for the appellant has relied on the decisions in Sri. Jayajothi and Co. Ltd. Vs Oriental Insurance Company Ltd. III (2002) CPJ 179 (NC) wherein there was a delay of 7 months in filing the complaint after receipt of the amount in full and final settlement wherein the complainant was a textile mill. The other decisions stated with the Counsel for the appellant is Morinda Coop. Sugar Mills Ltd. Vs New India Assurance Co. Ltd. Vs. and Ors, II (2002) CPJ 57 (NC). Evidently therein the complainant was a sugar mill. We find that the case of the complainant in the instant case cannot be compared to the facts situation in the cases stated by the Counsel for the appellant. In the instant case the delay as such is not of much significance that the complainant has executed the discharge voucher. Evidently she had no other alternative as the company has taken much time to offer that much of the claim amount. Hence we find that the delay in filing complaint in the instant case is not relevant as the discharge voucher has been executed not voluntarily. As per the policy if the death was caused due to the injuries sustained in the accident the amount assured is Rs. 10 lakhs. The scheme was meant for Non Resident Indians. The premium amount was 548 Dirham. In the circumstances, we find that the complainant is entitled for the balance amount. The order of the Forum is sustained. In the result, the appeal is dismissed. JUSTICE K.R. UDAYABHANU: PRESIDENT M.K. ABDULLA SONA : MEMBER Sr.
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