SHRI A.P.MUND, PRESIDENT:- Complainant Shanti  Sahoo has filed this case against the O.P. alleging deficiency in service. Case of the complainant in brief is that her husband Late Laxman Sahoo was working under M/s Hindal Co. situated at Hirakud. On dated.23.8.2009 the deceased met with an accident while getting down from slippery stair case in the factory premises, falls down from the height ,  sustained head injuries and other injuries over his body. He was taken to V.S.S.Medical College & Hospital, Burla, where he succumbed to his injuries and was declared dead.
2. The deceased had taken one insurance policy  called Group Janata Personal Accident Insuance Policy for assured sum of Rs.5 lakhs with the O.P.covering period from 08.01.2004 to 07.01.2019 vide Policy No.100300/47/01/9600zz/03/96/30350.
                                    
3. After the accidental death, the complainant being the nominee and legal heir filed a claim before the O.P.vide Claim No.100300/47/09/9690000615. The O.P. repudiated the claim vide their letter dated.20.06.2010 on the ground that the cause of death is not accidental and the claim is not coming under the purview of the policy. This arbitrary decision of the O.P. is being challenged in this complaint petition and the case of the complainant is that the accident met was within the terms and conditions of the policy as the death resulted solely and directly from the accident caused by external visible and violent means. This is gathered from the evidence on record which states that the deceased fell from the slippery stair case in the factory premises and sustained head injuries and bodily injuries. Police report also states that the deceased met with the accident by fall from the height .
4. On the basis of the above submissions, the complainant prays for a direction to the O.P. to pay Rs.5 lakhs i.e. the policy amount, Rs.1 lakh towards compensation for causing the complainant mental agony, harassment, pain etc. and Rs.10,000/- towards cost of the proceeding.
5. The O.P. appeared through his Advocate and files version, where it has been admitted regarding issuance of policy in favour of the deceased, but denied the claim of the complainant. The main contention of the O.P. is that the insurance is a contract of uberrimafides, which imposes the duty and obligation on the life assured to make full disclosure of all material facts which would effector the mind of the insurer. The false representation made by the deceased are:
(a)  The deceased gave a false representation regarding income which will not entitle him to 
get  Rs.5 lakhs assured amount.
    (b) The deceased was not performing duty at the relevant time of accident.
    © The deceased withheld his heart problem with the insurer O.P.
    Under the above the O.P. avers that the claim is not maintainable and liable to be dismissed with costs. 
    6. Complainant has filed Xerox copies of following documents in support of her claim:
(1) Repudiation letter dated.29.6.2010 issued by the O.P. (2) The Group Janata Personal 
Accident Policy Form (3) Policy issued in favour of the deceased  (4) Section  174 Cr.P.C. report by the police (this contains the opinion by the doctor) (5) Final Report under Section 174 Cr.P.C. (6) Inquest Report (7) Post Mortem Report (8) Challan of the dead body (9) Death certificate of the deceased (10) Certificate issued by the Manager(HR) dated.19.9.2009 (11) Certificate issued by Councilor, N.A.C., Hirakud (12) Affidavit regarding the accidental death of the deceased filed by one Prakash Mohanty, Contractor’s labour in M/s Hindal Co. Power dated.31.01.2015.
    7. The O.P. has not filed any documents and has adopted the written statement as his written argument.
    8. Complainant has filed her written argument and following case laws in support her case:
    (1) 2003(2) CPR-67 (State CDR Commission, Gujrat, Ahmedabad
    (The Oriental Insurance Co.Ltd. Vrs. Prabhaben Mukundray)
    (2) 2003(2) CPR-60(State CDR Commission, Gujrat, ahmedabad)
    ( M/s STIC Travels Pvt. Ltd. & Another Vrs. Dr.Kamal R.Jani & Others)
    (3) 2008(3)  CPR-172(NC) (National CDR Commission, New Delhi)
    (Mrs. Padma Ramanathan Vrs. National Insurance Co.Ltd.)

                                        
    (4) (1991) 1 Supreme Court Cases-357
    (Life Insurance Corporation of India Vrs. Smt.G.M./Channabasamma)
(5) First Appeal No.417 of 2005 (National CDR commission, New Delhi)
(Debendranath Nayak Vrs. New India Assurance Co.Ltd. & 2 Others)
(6) 2007(1) CPR-339 (H.P.State CDR Commission, Shimla)
(The New India Assurance Co.Ltd. Vrs. Mrs. Jaiwanti & Others)
(7)2009(2) CPR-272  (chhatishgarh State CDR Commission, Raipur)
(United India Insurance co.Ltgd. Vrs. Smt Suraj Devi Jain)
(8) 20090(1) CPR-358 (Kerala state CDR commission, Thiruvanaanthapuram)
(The New India Assurance Col.Ltd. Vrs. Joseph P. Mathew and Another)
(9) 2011(1) CPR-300(NC) ( National CDR commission, New Delhi)
(Oriental Insurance Vrs. Smt.Gangu Bai & Another)
    9. Heard the learned counsels for both the parties and perused the complaint petition, written version, written argument and case laws filed by the complainant and carefully gone through the case record. On the basis of the submissions made by the parties following two points are to be decided:
    (1) Whether the case is void on false representation made by the deceased to the O.P.
    which directly hit the uberrimafides ?
    (2) Whether the accident is the sole cause of death or the coronary disease is the sole
    cause of death ?
    10. The main argument of the O.P.is regarding uberrimafides and the O.P. defended their action of repudiation of the claim on the basis of the information passed by the doctor, who carried out the post mortem of the deceased. In point No.3, the doctor has opined that the death is due to coronary disease and its complications.
    11. The complainant based her argument that the death of the deceased was due to fall from the height. In support of the argument it is pointed out that the opinion of the doctor, who conducted the post mortem in para-1 states that the injuries to the head are ante mortem in nature, but the injuries are not sufficient to cause death. To supplement the argument, Advocate for complainant relied on the case laws referred above.
    12. In 2003(2) CPR-57, the State CDR Commission, Gujrat has held that simply because report did not mention any external injury, it could not be said that death was not accidental.
    In 2008(3) CPR-172(NC). It has been held by the Hon’ble National Commission that repudiation of claim on the ground  that death by drowning could not be considered to be accidental death in terms of insurance policy cannot be sustained on the ground that death caused was  accidental death as it was not natural. The insured did not intend to die by drowning.
    In the above decision the Hon’ble National Commission has quoted the Law of Insurance by Raoul Colinvaux Fourth Edition, which has given some illustration what is violent and in para-578 regarding external and visible means state that if a man fails into a river and is drowned or falls to a railway line and is hit by a train it is immaterial that he only fell because he had an epileptic fit if he is alive when the water get into his lungs and leads to suffocation, or when the train cuts  off his head thus stopping the motivating power to the heart, the cause of death is drowning or decapitation and not the anterior fit.
    In 1991(1)SCC-357 the Honble Supreme Court has held that  Policy holder has  duty to state correctly in proposal  form for the policy- Insurance alleging that fraudulent misrepresentation  and  suppression of material facts regarding  health made by the  policy holder while filling up proposal forms- Burden of proof  is on the insurer.
    On the above basis as observed by the Hon’ble Supreme Court, the O.P. has not   discharged its burden of proof regarding uberrimafides and hence the contention of the O.P. in this regard fails and accordingly point No.1 is answered against the O.P. as it has not substantiated it by producing any evidence which will point a finger on the deceased that he has not adhered to the principle of uberrimafides.
    In First Appeal; No.417 of 2005, the Hon’ble National CDR Commission has over ruled the O.P’s contentions that a consumer forum constituted under the provisions of the Consumer Protection Act, 1986 would not insist on the kind of proof (proof beyond reasonable doubt) as would be required by a criminal court in order to establish a crime against an accused person. A consumer forum should decide the question of fact based on preponderance of the probabilities and should not raise unnecessary suspicion on its mind about the version put forth by the complainant. This is exactly what has happened in the present case. The State Commission doubted the version of the complainant in regard to the circumstances in which the deceased Late Sabita Sahoo  @ Nayak died giving certain reasoning of its own though there was  ample evidence and material on record in the shape of inquest report, post mortem report and final report of the case u/s.174 Cr.PC which unequivocally established that the death of the deceased was caused accidentally due to drowning and there was no suspicion of any foul play in her death.
    13. In the present case also there is no foul play in the death of the deceased and has been caused due to violent physical and externals means when the deceased fell from a height on a slippery 
stair case.
    14. The affidavit filed by one co-worker of deceased namely Prakash Mohanty goes to say that the  deceased suddenly slipped and fell down on the ground and sustained bodily injuries and head injuries.
    15.  As per 2009(2) CPR-272 decision of Chhatishgarh State CDR Commission, Raipur, the O.Ps have not taken any other opinion except the opinion passed by the doctor, who has conducted the post mortem. They should have come out with complete proof regarding the death due to heart problem. They have not done so.
    16. According to us, it is not fully established what triggered the fall whether fall triggered the heart failure or vice versa is not fully established. The onus is on the O.P. to prove its case. It has failed in its effort. Here the reason of fall cannot be established from the post mortem report. According to the complainant, the fall was accidental and post mortem report has not established that the fall was due to heart failure. The post mortem report also says that there is some complication in the coronary disease which is a natural disease process. O.P. has taken into consideration only one aspect which suits it and ignored the other aspect.
                                            
    17. The O.P. has not filed any investigation report and they have solely based on the post mortem report while repudiating the claim. No document or medical report has been filed by the O.P. to prove that the deceased was suffering from coronary heart disease prior to the taking of the policy or at the point of his death i.e. in the year 2009. The O.P. failed to prove that the deceased was even aware of 
his heart disease and he has fraudulently suppressed the material facts before taking the insurance 
policy. So uberrimafides  is not attracted as per the observation of the Hon’ble Supreme Court. The burden of proof is on the O.P.to prove their case and basing on the preponderance of the probabilities we hold that the cause of death was accidental fall from the height which is a violent means of causing death covering the policy terms and conditions. Hence second point is answered in favour of the complainant.

    18. Taking into consideration the facts and circumstances discussed above and applying the principles laid down by different courts at different times as noted above, we allow the case accordingly and it is ordered that:
    The case of the complainant is allowed against the O.P.Insurance Company on contest. The O.P. is directed to pay to  the complainant(wife of the deceased)  the assured sum of Rs.5 lakhs(Rupees Five lakhs)  along with interest @ 9% (Nine percent ) per annum from the date of death i.e. dt.23.08.2009 till the date of actual payment. The OP. is further directed to pay to the complainant Rs.20,000/-(Rupees Twenty thousand) towards compensation  for causing mental agony and cost of the present proceeding. The O.P. has to comply the order within two months from the date of order.