DISTRICT CONSUMER DISPUTES REDRESSAL FORUM Civil Station, Palakkad – 678001, Kerala
Dated this the 17th day of July, 2010
Present: Smt.Seena.H, President Smt.Preetha.G.Nair, Member Smt.Bhanumathi.A.K, Member
CC.No.118/2009
Mayan Digvijay, S/o.(Late Mayan). “Maya”, Kannadi.P.O, Palakkad 678701. (Now residing at Madinat Sultan Qaboos, P.B.No.45, Code No.115, Sultanate of Oman) Represented by registered power of attorney Sri.Radhakrishnan, S/o.Late Mayan, “Maya”, Kannadi.P.O, Palakkad 678701. - Complainant (By Adv.M.Narayanankutty)
Vs
1. The Regional Manager, The New India Assurance Co. Ltd., Ernakulam Regional Office (760000), Kandamkulathi Towers, M.G.Road, Kochi, Kerala 682 011.
2. The New India Assurance Co. Ltd., Divisional Office, N.S.Towers, Near Stadium Bus Stand, Palakkad 678013. Represented by Manager. - Opposite parties (By Adv.C.Mohanram for all opposite parties)
O R D E R By Smt.Seena.H, President
In short the case of the complainant is as follows: The wife of the complainant, P.V.Kousalya, was a Doctor employed abroad in the Sultanate of Oman and while she was there, she was bitten by an ant on 15-11-2004. She was immediately hospitalized within few minutes and she was treated continuously as in patient
in the hospital till her death which happened on 22-11-2004. The cause of death is Anaphylactic shock due to ant bite leading to respiratory failure, cardiac arrest and hypoxic encephalopathy. She was allergic to such insect bites. The Medical Authorities as well as the Ministry of Health, Sultanate of Oman has certified that the cause of death was Anaphylactic shock due to ant bite leading to respiratory failure, cardiac arrest and hypoxic encephalopathy. The toxic effect of ant bite, insect bite etc is fatal in certain cases is also a well recognized fact and medically and universally accepted.
2. Complainant as well as his wife Dr.Kousalya were duly insured by the 2nd opposite party under the Pravasi Suraksha Kudumba Arogya Policy vide No.761101/47/99/80108 for a sum of Rs.10,00,000/- each. Complainant submitted claim application in the required proforma on 01/06/2005 to the opposite party along with death certificate issued by the Indian Embassy at Muscat and other relevant documents. But the opposite parties repudiated the claim on the ground that the amount is payable only if the insured person sustains bodily injury resulting directly from accident caused by violent means. Complainant submits that the opposite parties are making a vain and unimpressive attempt to wriggle out of their solemn obligation to indemnify the insured in accordance with the terms of the policy with malafide intention to avoid payment. She being a leading and well known gynaecologist, her death due to the ant bite was widely reported in newspapers as well. Since the cause of death is clearly revealed by the medical documents that the death is due to anaphylactic shock due to ant bite, no postmortem was conducted, as it was not necessary. Complainant approached the Insurance Ombudsman, Kochi for the redressal of his grievance vide Complaint No.10/KCH/G1/11-002-223/2006-07 but the Ombudsman without properly appreciating the facts in issue was pleased to dismiss the complaint vide order dt.22-03-2007. 3. Then the complainant filed a Writ Petition (C) No.16036/07(H) before the Hon'ble High Court of Kerala seeking redressal of his grievance. Hon'ble High Court held that it was
an accident and directed the opposite parties to reconsider the matter and pass appropriate order within 3 months. Accordingly the complainant again approached the opposite parties but without considering the effective directions and findings of the Hon'ble High Court of Kerala, opposite parties repudiated the claim in a cursory manner. 4. Complainant alleges that the rejection of the claim by the opposite parties is arbitrary, capricious, unjust and against natural justice, equity and good conscience and their act amounts to deficiency in service. As per the terms of the policy, such events/accidents are covered by the policy. Hence the complainant claiming an amount of Rs.10,00,000/- being the sum insured with 15% interest from the date of death till realization, Rs.15,000/- as compensation for the mental agony, stress and strain suffered, cost and other reliefs.
5. Opposite parties filed version contending the following. Opposite parties admitted that the complainant and his wife were insured under the Pravasi Suraksha Kudumba Arogya Policy. The submission of the complainant that his wife was bitten by ants as a result of which she suffered respiratory failure leading to cardiac arrest and hypoxic encephalopathy is not correct. The deceased was a known asthmatic and she already had past history of developing allergic reaction to ant bite. Ant bite as such is a common affair not known to cause any severe/noticeable problem in human beings(including children). In the case of the deceased perhaps her existing reactive allergic problem must have been aggravated by the ant bite. Therefore the ant bite as such was understandably not the sole and direct reason for her unfortunate death and never it comes within the definition of the accident covered under the policy. If the insured was to be normally healthy, the ant bite alone could not have caused so much of problem and in the circumstances of the case it cannot be termed as an accident caused by violent/visible means as stated in the policy. As per the policy condition the claim is payable only if the insured has sustained any bodily injury resulting solely and directly from the accident caused by violent and visible means, and in the
case of accidental death documents like records from Police, postmortem report are necessary. As per the Indian Embassy, on the request of the next kin, postmortem was not done which resulted in violation of policy conditions. Opposite parties submit that anaphylactic shock would not come under the purview of the policy and insurance policy evidences a contract and the parties involved in the contract are bound by the terms and conditions of the policy. The Insurance Ombudsman already considered the matter and has found that the decision of the opposite parties is correct and there is no deficiency in service on their part. Further the Hon'ble High Court of Kerala observed in W.P(C) No.16036/2007(H) that no writ is maintainable with regard to rights and liabilities of the parties arising out of a contract and directed the complainant to approach higher authorities for redressal. Hence the complaint is to be dismissed.
6.The evidence adduced by the parties consists of their respective affidavits. Exts.A1 to A14 marked on the side of the complainant and Ext.B1 marked on the side of the opposite parties.
7.The issues for consideration are; Whether there is any deficiency in service on the part of opposite parties? If so, what is the reliefs and cost complainant is entitled to?
8. Issues 1 & 2: Having gone through the entire evidence on record and hearing the rival submissions of the learned counsels for both parties, it is understood that there is no much disputes regarding the facts of the case. It is an admitted fact that the incident happened within the period of the policy. It is also born out from the deposition of DW1 that it is an accident policy as stated by the complainant. It is also clear from Ext.B1. It is seen that the insurance company has repudiated the claim on the following grounds.
That as per the policy conditions claim can be payable only if the insured person sustained any bodily injury resulting solely and directly from accident caused by violent, out ward and visible means. 'Anaphylactic shock' being the cause of death will not come within the purview of the policy. That as per Pravasi Suraksha Policy for payment of any compensation for accidental death, cause of it should be conclusively proved. Since the complainant is alleged to have bitten by ants and the death as per report is seen to have occurred due to respiratory failure, cardiac arrest and hypoxic encephalopathy, claim is not payable. Further conclusive proof of the cause of death could not be proved due to lack of postmortem.
9. Perusing the evidence adduced by the complainant, we find no substance in the contentions raised by the opposite parties. It is understood that opposite parties has taken the incident as a simple case of ant bite, where as actually it is not so. Death due to the ant bite may not be common in our country, but is seen to be common in foreign countries like Sulthanate of Oman, Australia etc. Complainant has produced the report for perusal.
10. It is specifically stated in Ext.A5 that death of the insured is due to anaphylactic shock due to ant bite leading to respiratory failure, cardiac arrest & hypoxic encephalopathy. Opposite parties has contented that the cause of death is not accident as per the policy conditions. DW1 has deposed to the effect that claim is payable if the death is due to snake bite or elephant attack. We are of the view that opposite parties ought to have worked up the matter or consulted an expert before repudiating the claim. At least this can be done when the Hon'ble High Court has directed to reconsider the matter.
11. We are also of the view that if the claim is payable on death caused by snake bite or elephant attack, definitely it is also payable if the cause of death is an ant bite.
12. Another contention raised by the opposite parties is non-production of postmortem certificate for the conclusive proof of the cause of death. This we feel is only a flimsy ground for avoiding payment, since the cause of death is very much evident from Ext.A5. The contention of the opposite parties that claim is not payable since she had the history of asthma is of no relevance as it is an accidental claim policy. Complainant has seen to have produced all the relevant records for allowing the claim. Opposite parties has caused inordinate delay in disbursing a genuine claim for which complainant has to be adequately compensated.
13. In view of the facts and circumstances set forth above, we are of the view that the act of opposite parties amounts to gross deficiency in service on their part.
14. In the result, complaint allowed. Both the opposite parties are jointly and severally directed to pay complainant an amount of Rs.10,00,000/- (Rupees Ten lakhs) being the insurance claim along with interest @12% p.a from the date of repudiation (8/12/2005) till the date of order and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings. Order to be complied within one month from the date of receipt of order failing which the whole amount shall carry interest at the rate of 9% p.a from the date of order till realisation. 15. Pronounced in the open court on this the 17th day of July, 2010 Sd/- Seena.H, President Sd/- Preetha.G.Nair, Member Sd/- Bhanumathi.A.K, Member
Appendix Date of filing: 30/07/2009
Witnesses examined on the side of complainant Nil
Witnesses examined on the side of opposite parties DW1 – Shri.K.Ramakrishnan
Exhibits marked on the side of complainant
Ext.A1 – Photocopy of letter dt.22/06/09 sent by power of attorney to 1st opposite party Ext.A2 – Photocopy of reply dt.06/07/09 Ext.A3 – Copy of Judgement in W.P.(C)No.16036/2007H by Hon'ble High Court of Kerala Ext.A4 – Letter of authorisation dt.19/8/2009 Ext.A5 - Photocopy of death notification Ext.A6 - Photocopy of Police certificate from Oman Ext.A7 - Photocopy of insurance policy Ext.A8 - Photocopy of Certificate of Death Ext.A9 - Photocopy of letter dt.8/12/05 sent by 2nd opposite party to complainant Ext.A10 - Photocopy of newspaper cutting Ext.A11 - Photocopy of repudiation letter Ext.A12 - Photocopy of letter dt.01/09/06 sent by 1st opposite party to complainant Ext.A13 - Photocopy of patient repository Ext.A14 – Copy of order passed by Insurance Ombudsman dt.20/03/07
Exhibits marked on the side of opposite parties
Ext.B1 – Copy of terms and conditions of policy
Cost(Allowed)
Rs.1,000/- (Rupees One thousand only)
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