Feeling aggrieved by the order passed by Additional District Consumer Forum, Nagpur in CC No.44/09 on 31/7/09 partly allowing the complaint, the original Opponent has filed present appeal.
Facts in brief of the consumer complaint are that the Respondent/Original complainant Prabha Basant Kolare is the widow of the life assured Mr.Basant Kolare who was an employee of Western Coalfields Ltd. WCL had taken insurance coverage policy namely “Long Term Group Janata Personal Accident Policy for WCL executives” whereby the sum assured per employee was Rs.5 lac and the period of insurance was for 10 years i.e. from 15/3/1999 to 14/3/2009.
The Terms of the policy relevant for the present case is that the company will indemnify the insured as hereinafter mentioned
“If the insured person shall sustain any bodily injury resulting solely and directly
from the accident caused by outward violent and physical means, then the
Company shall pay to the insured sum or sums hereinafter setforth”
It is the contention of the complainant that her husband died of an accident which occurred while he was taking meals, certain food particles blocked his respiratory canal thereby stopping his respiration and as a result, the insured died. As per the contention of the complainant, the Insured died an accidental death and, therefore, claim under the Janata Personal Accident Policy was filed with the Appellant Insurance Company.
The Opponent Insurance Company repudiated the said claim as the death of the insured not being accidental and that it occurred due to neurological shock which is a disease.
The complainant consulted various doctors who opined that neurological shock is not a disease and the death of the insured was accidental one.
Therefore, alleging deficiency in service, the complainant filed consumer complaint seeking direction to the opponent to give the sum assured of Rs.5 lac and compensation of Rs.1 lac towards mental and physical torture and Rs.10000/- as costs of the proceeding.
The Forum partly allowed the claim and directed the insurance company to award the sum assured of Rs.5 lacs as per the insurance policy with 9% interest from 19/11/08 i.e. the of repudiation. The forum further awarded compensation of Rs.25,000/- towards mental torture and Rs.1000/- towards cost of the proceeding. The forum observed that the accident was an event resulting out of outward violent visible act and it can not be construed in a limited sense. Forum gave a hypothetical instance that if a person accidently dies of drowning then not holding such death as accidental would be totally incorrect and, therefore, the forum below in reference thereof, referred to AIR 1956, Bombay page 633
In the aforesaid reference, the forum has held that food particle in the opinion of the forum is a visible and outward agent and therefore, death resulting out of that agent is an accidental one.
The forum has further relied on the law lexican published by P.Ranganath Ayyar whereby accident is explained as,
Accident : The word “accident:” is derived from the Latin verb “accidere’ signifying ‘fall upon, befall, happen, chance’
Relying on the aforesaid judgment and the term ‘accident’ being described and explained in the law lexican, the forum held that the death of the life assured was accidental since the death resulted due to food particle which is both ‘visible and outward’, and, therefore, the complainant was entitled to receive the claim under the group Janata Personal Accident Policy and further held that the appellant erred in repudiating the claim as the cause being one of a neurological shock and not an accident.
We heard Adv.Rao for the appellant and Adv.Thakkar for the Respondent at length. Adv.Rao tried to canvass that the forum erred in passing the impugned order for the accident was not because due to violent, visible and outward means and the forum directing the appellant to give sum assured of Rs.5 lac with 9% interest from 19/11/08 and Rs.25,000/- towards mental torture and Rs.1000/- towards litigation charges was illegal and erroneous. The learned counsel for the appellant further contended that granting interest @9% on the sum assured was itself exorbitant and further granting compensation of Rs.25,000/- would put the appellant to dual punishment and, therefore, sought for modification of the impugned order if not being quashed.
We heard learned counsel for both the parties and perused the impugned order and the documents filed on record and find that the cause of death resulting out of the food particle blocking the respiratory canal can not be inferred as a disease, but surely can be only an accident because such eventuality do not result by way of regular practice and it is only in rare cases that such accident occure and results into death. Therefore, we find that the forum has rightly allowed the complaint and directed the appellant to give the sum assured and has fairly granted the compensation. In our opinion, modifying the impugned order to the extent of granting 6% interest instead of 9% as granted would be just and proper, and therefore, we pass the following order.
ORDER
1) Appeal is partly allowed.
2) The clause No.2 of the impugned order granting 9% interest on the sum assured of Rs.5 lacs from 19/11/2008 is modified to 6% on the sum assured from 19/11/2008 i.e. the date of repudiation.
3) Rest of the order is maintained.
4) No order as to cost.
Delivered on 16/11/2011.
