IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 20th day of October, 2022.
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 30/2021 (Filed on 06/02/2021)
Petitioners : (1) Mary,
W/o. late Thomas P.J.
Pamplaniyil House,
Anthinadu P.O.
Kottayam – 686 651.
(2) Shiny Thomas,
D/o. late Thomas P.J.
Vettuvayalil house,
Kanjiramattom P.O.
Kottayam – 686585
(3) Shila Thomas,
D/o. late Thomas P.H.
Perumana House,
Kaduthuruthi P.O. Vallassery,
Kottayam – 686604
(4) Sanishmon Thomas,
S/o. late Thomas P.J.
Pamplaniyil House,
Anthinadu P.O. Kottayam
Pin – 686651.
(For ptrs 1to 4 Adv. M.C. Suresh and
Adv. Aswin P.Kumar)
Vs.
Opposite party : The Divisional Manager,
The New India Insurance Co. Ltd.
Divisional Office (762500)
Municiapl Shopping Complex,
Main Road, Pala – 686 575.
(Adv. P.G. Girija)
O R D E R
Sri. Manulal V.S. President
Complaint is filed under Section 35 of Consumer Protection Act, 2019
Case of the complainant is as follows:
The husband of the first complainant and father of the complainants no 2 to 4 namely Thomas P.J. @ Joy .P.J. was holding a two wheeler liability policy with the opposite party for the period from 8-8-2019 to 7-8-2020. The said Thomas P.J. was the registered owner of Honda Activa bearing reg.no. KL-5 T 6156 and as per the policy he was under personal accident cover of a sum of 15,00,000/-. On 24-12-2019 the said Thomas P.J. was hit by a pick up van bearing registration no. KL-38 C 6104 while he was riding the said Honda Activa at Pala Thodupuzha road near Anthnadu temple and he had sustained serious head injuries and taken to Caritas hospital in an unconscious state and treated there from 24-12-2019 to 11-1-2020. Due to the accident, Thomas P.J. was diagnosed to have acute SDH, underwent right frontal Burr Hole and evacuation of SDH and discharged in a bedridden state for continuing further care and management in home as instructed by doctors. His condition further worsened with hydrocephalus and again taken to Caritas hospital on 2-2-2020 and admitted there and VP shunt was done and discharged on 25-2-2020 for continuing treatment in any hospital near to residence for continuing rehabilitation. As per advice from caritas hospital he was taken to Mar Kavukattu Memeorial Hospital Anthinad on 25-2-2020 and on examination multiple infected bed sores were found out and taken to Carmell Medical Centre and treated there till 14-3-2020. The condition of Thomas P.J. did not show any improvement and he continued to be in paralysed condition unable to move his limbs or speak and with VP shunt in sit- upon 14-3-2020 the doctors at Carmel hospital advised the complainants that there is no hope for recovery from the condition caused due to head injuries and advised to continue conservative management at home. Hence on 14-3-2020 Thoams P.J. was brought back home and continued in the same paralysed condition without any response. On 1-5-2020 his condition worsened further and he was immediately taken to nearby Mar Kavukatt memorial hospital Pravithanam and after examination the casualty doctor declared death at 9.50 pm. The said Thomas was an active and a healthy man working even at age of 78 years without any health related issues and he became paralysed and bedridden due to severe head injuries caused sue to accident and did not recover from it and succumbed to death due to the injuries sustained in the road accident. The claim for Rs.15,00,000/- was flatly denied by the opposite party and hence this complaint is filed for recovery of the insured amount with interest, compensation and cost.
Upon notice opposite party appeared before the commission and filed version as follows;
The vehicle KL 5 T 6156 was insured with the opposite party in the name of Joy P.J., Pampliniyil house, Pizhaku. P.O. Arunapuram vide policy no. 76250031119020000316 for a period from 8-8-2019 to 7-8-2020 vide two wheeler liability policy. The averment that Thomas P.J. was in a paralysed condition is not true. The discharge summaries dated 11-1-2020 and 25-2-20 show that on both occasions, the condition of the patient was stable and hence he was discharged. So when he was discharged, he had no health issues and his condition was stable. The deceased was aged 78 years at the time of his death and he must have been suffering from age related health problems. The medical certificate attached to the claim form also is silent about the immediate /direct cause of death. As per Colum no. 6 of the medical certificate, he was suffering from systemic hypertension only. So the medical records submitted by the complainant do not substantiate any direct connection with any injury sustained leading to the death of Thomas P.J. Further, no post mortem is conducted also.
As per section III of personal accident cover for owner driver, the death shall have direct connection with the vehicle insured. Moreover, the policy is issued in the name of Joy.P.J and registration certificate of the vehicle is also in the name of Joy P.J., whereas the driving license shows the license is in the name of Thomas P.J. no valid documents are produced to prove that Joy P.J. and Thomas P.J. is one and the same person. The claim was repudiated stating that there is no medical records to substantiate that the death was primarily due to the accident and there is no post mortem to confirm the exact cause of the accident. The averment that the death happened solely due to the injuries caused in the accident being baseless and denied. The proximate cause of death of Thomas P.J. was not the injury sustained in the accident. There is no deficiency in service on the part of the opposite party.
Sanishmon who is the fourth complainant filed proof affidavit for and on behalf of other complainants and marked exhibit A1 to A11. Asha R Thomas who is the divisional manager of the opposite party filed proof affidavit
and marked exhibits B1 to B3 from the side of the opposite party.
On evaluation of complaint version and evidence on record we would like to consider the following points:
- Whether there is any deficiency in service on the part of the opposite party?
- If so what are the reliefs?
Point number 1 and 2
Before dealing with the rival submissions and contentions advanced by the learned advocate appearing for complainant as well as opposite parties, it will be pertinent to point out certain undisputed facts. There is no dispute that the vehicle
KL 5 T 6156 was insured with the opposite party in the name of Joy P.J. Pizhaku. P.O. Arunapuram vide policy no.76250031119020000316 for a period from 8-8-2019 to 7-8-2020 vide two wheeler liability policy. There is also no dispute that on 24-12-2019 the said vehicle was hit by a pickup van bearing registration no. KL-38 C 6104 at Pala Thodupuzha road near Anthnadu temple and the said Joy .P.J. had sustained serious head injuries and taken to Caritas hospital in an unconscious state and treated there from 24-12-2019 to 11-1-2020 and succumbed to death on 1-5-2020.
The opposite party resisted the complaint firstly on the ground that the death shall not have direct connection with the accident and secondly by stating that, Joy P.J. and Thomas P.J. is not one and same person. On perusal of exhibit A2 we can see that the vehicle bearing reg.no. KL-5T-6156 was insured with opposite party in the name of the Joy.P.J, Pampliniyil house, Pizhaku. P.O. Arunapuram vide policy no. 76250031119020000316 for a period from 8-8-2019 to 7-8-2020 vide two wheeler liability policy. Exhibit A3 is the driving license issued in the name of Thomas P.J. Pampliniyil house, Mallikassery ,Pala. Exhibit A4 is the certificate issued by the village officer, Lalam village on 11-5-2020. In exhibit A4 village officer certified that the Joy P.J. Pampliniyil house, Anthinadu. P.O. Lalam who is the holder of Adhar card vide no. 54216097611 and the Thomas P.J. who is the holder of Driving license bearing No. 35/1819/2001 is one and same. Moreover in exhibits A5, A6and A9 which are the discharge summaries from Caritas hospital and death certificate issued by the registrar of birth and death of Karoor Gramapanchayath the address is recoded as Thomas P.J. (Joy .P.J.) Pampliniyil house, Anthinadu. P.O. Therefore the contention of the opposite parties that there is a difference in the address in Policy, driving license and registration certificate and there is no document to prove that the said Joy. P.J. and Thomas P.J. is one and same person is not sustainable.
It is evident from exhibit A5 that Thomas P.J. @ joy P.J. had sustained sever head injury due to accident which resulted in basal ganglionic bleed, sepsis right FTP acute sub dural haemorrhage and exhibit A6 proves that later developed hydrocephalus. Though the opposite party contended that the patient was stable as per Exhibits A5 and A6 at the time of discharge exhibit A7 proves that the patient had multiple infected bed sores.
On reading of exhibit A6 we can see that CT brain showed the worsening of hydrocephalus and the patient was admitted on 20-2-20 for VP shunt He underwent right MP VP shunt on 21-2-2020. Further we can see that the patient was discharged to near to their home for continuing rehabilitation. A8 proves that the patient was admitted on 25-2-20 to Carmel medical centre and got discharged on 14-3-2020. Therefore it is evident that at the time of discharge from Caritas hospital the patient was not fully recovered from the injuries sustained to him due to the accident on 24-12-2019.
Another contention of the opposite party is that the death has no direct connection with the accident. It is pertinent to note that form of medical certificate attached to Exhibit B2 claim form shall be filled up by the treating doctor . All queries in the certificate are duly answered by the doctor and the doctor certified that the patient had sustained injuries due to the accident and he had been bed ridden following accident not recovered and expired on 1-5-2020. On a close scrutiny of medical certificate which is annexed with B2 we can see that the same is in a standard format and there is no column asking about the direct cause of death. Moreover against the query in column number 7 the doctor has answered that the patient has confined to bed /house for 3 to 6 months as direct and sole consequence of the injuries sustained.
In Oriental Insurance Co. Ltd. vs Milind Harit & 3 Ors (IV CPJ (2019)166(NC) Ho’nle National commission has held as under
“12. Coming to the merits of the case, the learned counsel has clarified that Apollo Hospital where the insured died has recorded the sufferings and ailments of the insured rather than the history of accident. The report of Pushpawati Singhania Research Institute For Liver, Renal and Digestive Diseases is not a full report but they have only given the report in respect of discharge of the patient. Thus, there was no question of recording injury from fall from stairs. The insured fell from the stairs on 29.06.2005 and on the same day, the complainant took the insured to the family doctor Dr B B Mittal who examined the patient and prescribed medicines. In his prescription it is clearly written that S S Harit fell down from the stairs and injured his big toe of right leg. As the insured was diabetic, this small injury continuously increased and other complications also developed over time and finally the condition was such as warranting hospitalization and the insured was first taken to PSRI and later on when the condition of the insured deteriorated he was taken to Apollo Hospital on 01.08.2005 where ultimately his right leg was amputed and finally he died on 06.08.2005. Thus the death has resulted from the injury suffered by the insured when he fell down from the stairs on 29.06.2005. Accordingly, the claim is payable under the personal accident risk cover.”
National Commission has held in New India Insurance Company Limited Vs. State of Haryana and Ors. reported in 2008(2) CPJ 371 that Consumer Protection Act, 1986 Section 21(b) Insurance claim, motor accident, accidental death. Denial of the benefit under Government Scheme on account of non-production of FIR and post-mortem report. Treatment of deceased carried on in Government Medical College and Hospital. Non production of document in support - insurance cannot discount and reject reports and statement of Government Hospital authorities, Gram Panchayat and other Government authorities, without evidence to contrary. Fraud, misrepresentation of material facts with regard to death of insured not established. Repudiation of claim not proper, revision petition dismissed.
Similarly, National Commission has also held in 15, TPD Gram Sewa Sahakari Samiti Ltd. Vs. Charnjit Kaur reported in 2011 (4) CPJ 390 that Consumer Protection Act, 1986 Sections 2(1)(g), 14(1)(d) and 21(b) - failure of payment of - agricultural loan - death of AS;, wife claimed for Rs.1 lakh under Agricultural Securitization Scheme after deduction of loan amount. Complaint allowed. Revision petition against - contention raised that death of ‘AS’ not accidental – not tenable. Decisions of Forum based on certificate given by Sarpanch which was supported by series of affidavits filed on behalf of complainants justifying manner in which ‘AS’ died which conclusively proved that it was an accidental death. Technical objections such as not filing an FIR, absence of post-mortem report and not filing claim within thirty days will not make much a difference to the case of the complaints. No interference warranted - revision petition dismissed.
National Commission has also examined the controversy like the case in hand and held in United India Insurance Company Ltd. Vs. Pallamreddy Aruna reported in 2007(4) CPJ 389 that Consumer Protection Act, 1986 Section 21(b), insurance claim, death due to snake bite, post-mortem, claim was repudiated on the ground that proof of death by snake bite was not established without conducting post-mortem. Contention cannot be accepted. Death was duly proved by certificate of police official, village Administrative officer and the doctor.
In a small village, villagers cannot wait for post-mortem in cases of snake bite. A doctor in such cases can certify that person concerned had died because of poison due to snake bite. Order passed by authorities below upheld.
In the light of above discussed evidence and decisions of apex commission we are of the opinion that the contention of the opposite party that the death has no direct connection with the accident and no postmortem was conducted to confirm the cause of death would not sustain.
As per exhibit A2 the opposite party is liable to indemnify the insured in case of his death to the tune of Rs.15 lakhs. Exhibit A1 proves that the complainants are the legal heirs of the diseased Thomas P.J. @ Joy P.J. Being the legal heirs of the diseased insured the complainants are entitled to get the insured sum of Rs. 15 lakhs form the opposite party under the personal accident cover which is assured by the opposite party. No doubt the opposite party is bound to perform their contractual obligation under the exhibit A2 insurance policy.
The repudiation of the genuine claim of the complainants by the opposite party amounts to imperfection and inadequacy in service which is maintained by the opposite party under the contract of insurance and amounts to deficiency on the part of the opposite party. No doubt due to the deficient act of the opposite party the complainants are put to too much hardship and mental agony for which the opposite party is liable to compensate.
In these circumstances we allow the complaint and pass the following order.
We hereby direct the opposite party to pay Rs.15 lakhs which is the amount as per the compulsory personal accident cover along with a compensation of 50,000/- to the complainants within 30 days from the receipt of this order failing which the amounts will carry 9 % from the date of his order till realization.
The Order shall be complied within 30 days from the date of receipt of Order.
Pronounced in the Open Commission on this the 20th day of October, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Copy of family membership certificate in the name of Sanishmon Thomas
dtd.05-06-20 from Lalom
A2 – policy schedule cum certificate of insurance issued by opposite party
A3 – Copy of driving license in the name of Thomas P.J.
A4 – Certificate dtd.11-05-20 issued by Village officer, Lalam village
A5 – Discharge summary dtd.11-01-20 from Caritas Hospital
A6 –Discharge summary dtd.25-02-2020 from Carital Hospital
A7 – Attested copy of medical records from Mar Kavukat Memorial Hospital
A8 – Discharge summary from Carmel Medical Centre
A9- Copy of death certificate in the name of Thomas P.J.
A10- Copy of letter dtd.27-08-20 by opposite party to 1st complainant
A11- Copy of final report (FIR 3108) by SHO Pala
Exhibits marked from the side of opposite party
B1 – Copy of policy schedule issued by opposite party
B2 – Copy of medical certificate with claim form
B3 – Letter dtd.27-08-2020 by opposite party to 1st complainant
By Order
Assistant Registrar
