By  Sri.P.K,.Sasi, President

            This is a complaint filed by one Mr.Sasikumar for getting compensation from 1^st opposite party based on the insurance policy taken by his brother  Gopinathan, through 2^nd opposite party, who died in an accident.  As per the policy the complainant is the beneficiary and  he is entitled to get Rs.1,00,000/-.

          2. The case of the complainant is that Mr.Gopinathan was travelling in a bus and he was fallen down from the bus and sustained severe head injury and admitted at Aswini hospital, Thrissur on 7/1/04.  He was kept in the I.C.U with the assistance of ventilator.  After few days he was shifted to room and the treatments continued.  He was unconscious till his death.  He was treated by Dr.Devaprasad at Aswini hospital.  It was told by the doctor that Gopinathan is in a coma stage and he is in a very  serious condition.   There was no progress in his condition even after several  days treatments and the doctor told that his condition is not fit to conduct a surgery.  Therefore, no other way except oral medicines.  The doctor  suggested that no further treatment as an inpatient is to be done.    Then the doctor told to the complainant that you can continue these treatments at your home.  Hence, the complainant along with his brothers requested for  discharge and brought Gopinathan to his house on 21/1/04  and the treatments continued as per the direction of Dr.Sivaprasad.  Later succumbed to injuries on 26/4/04.

          3. Then the complainant has submitted a claim application before the 1^st opposite party on 1/9/2005.  Consequently a letter was received from the 1^st opposite party asking him to submit some reasons for getting the claim.  For that the complainant has replied on 2/9/05 stating the real facts.  The averment stated in the  notice sent by the 1^st opposite party is denied by the complainant that the deceased Gopinathan would   have been  recovered if the treatments were continued at Aswini hospital.  These are all the reasons simply stated by the 1^st opposite party only for denying the insurance benefits to the complainant.  Other  brothers of the complainants  are also the holders of the similar policies.  On 13/3/06 1^st opposite party has repudiated the claim submitted by the complainant.  In the  repudiation letter they have stated that the deceased  Gopinathan was having some other pre-existing diseases while taking the policy which was  concealed by him.  Hence he is not entitled to get compensation.  The act of the opposite party denying the claim stating unsustainable allegations amounts to deficiency in service on their part.  Hence this complaint is filed. 

          4. On being noticed of the complaint both the opposite parties have entered appearance through separate counsels and filed separate versions.  1^st opposite party in their version admitted the policy subject to the terms and conditions of the policy.  It is stated in their version that  the limit of liability as per  the policy is Rs.80,000/- for personal accident death, and Rs.20,000/-  under medical claim.  The 1^st opposite party further stated that they have conducted an investigation through one Mr.George Thattil and the report submitted by the investigator shows that the deceased was discharged on request by the relatives  contrary to the opinion of the  doctors who treated him.   It is further stated that Dr.Devaprasad who treated Gopinathan has opined that the patient would have recovered if his treatments were continued.  The postmortem report of deceased Gopinathan do not disclosed  any definite opinion   regarding the cause of death.  The 1^st opposite party relied entries made in the case sheets of the treated hospital.  They further stated in their version that the deceased  Gopinathan was having  previous history of  mental abnormality which was also suppressed by him in the proposal form,  which amounts to  the violation of the policy conditions.  1^st opposite party further stated that the policy expired on 16/3/04 and the death was not caused due to the injury sustained in the accident since nothing  is mentioned in the postmortem certificate.  Death was on 23/4/04. Hence the policy  does not cover death happened after  policy period.  1^st opposite party further stated that there was no deficiency in service on the part of the opposite party and prayed for the dismissal of the complaint with cost.

          5. The 2^nd opposite party in their version stated that Metro Health Club is a part of the Metropolitan hospital .  Hence the Managing Director  of Metropolitan hospital  is a necessary party in this complaint who was not  impleaded.  Hence the complaint is bad for non-joinder  for necessary parties.  They admitted the policy  during the period 17/3/03 to 16/3/04. 

          6.The case was posted for  evidence and from the side of the complainant,  he was examined as PW1 and Exhibits P1 to P5 were marked.  The complainant has filed  detailed proof affidavit in which he has affirmed all the averments stated in the complaint in detail.  He affirmed in the affidavit  and stated that they brought Gopinathan after getting a discharge only because  that doctors told him that you can continue the treatments at their house.  Doctor  told that there is no other treatments to be done at hospital.  And he prescribed oral medicines which was continued at house.  He categorically denied that the statement made by the opposite party   that the condition could have been better and he was recovered if the treatment were continued at hospital.  He further denied that Gopinathan was having any pre-existing disease or any sort of mental disorder.  He was thoroughly cross examined by the counsel for both the opposite parties.  The 1^st opposite party has marked their seven documents through cross examination as Exhibits R1 to R7.  The complainant affirmed in the cross examination that no consent letter is given to the hospital at the time of discharge.  He denied the suggestion put by the counsel that the death caused is due to the negligence of  the relative and without not providing proper treatments.

          7. Points for consideration are that :

1) Whether there was any deficiency  in service on the part of opposite party?

3) If  so what costs and reliefs?

          8. From the side of the 1^st opposite party investigator Mr.George Thattil is summoned as witness and examined as PW2.  Exhibit R8 confirmed through the witness.  Exhibit P1 is a letter dated 2/9/05, Exhibit P2 is reply sent by the complainant, Exhibit P3 is repudiation letter dated 13/3/06, Exhibit P4 is memo issued by the Calicut Development Authority to Gopinathan and Exhibit P5 is OP card issued from Aswini hospital.  Exhibit R1 is a proposal form submitted by Gopinathan, Exhibit R2 is a certified copy of policy with terms and conditions, Exhibit R3 is a letter dated 13/3/06 issued by 1^st opposite party to the petitioner, Exhibit R4 is medical report submitted by Dr.Devaprasad, Exhibit R5 is discharge summary issued by Aswini hospital, Exhibit R6 is copy of post mortem certificate of Gopinathan, Exhibit R7 is copy of post mortem certificate final opinion, Exhibit R8 is investigation report and copy of case sheet of Aswini hospital is marked as Exhibit C1.

          9. We have perused all the records as well as evidences adduced from both sides.  Both sides filed argument notes.  Heard in detail. The case of the complainant is that his brother Gopinathan was the holder of Nagarick Suraksha policy of the 1^st opposite party.  He has taken that policy through the 2^nd opposite party and he died due to the injury sustained  in a road accident happened on 7/1/04.  The complainant being the beneficiary of the policy, he applied for the benefits under the policy.  The 1^st opposite party denied the claim stating unsustainable reasons. Hence the complaint is filed.  The main contentions of the 1^st opposite partyis  that   there is policy limit for  personal accident for an amount of Rs.80,000/-  and under medical claim Rs.20,000/-.  The sum insured is Rs.1,00,000/-. The 1^st opposite party admitted the existence of the policy.  The period of policy was 17/3/03 to 16/3/04.  The said Gopinathan died on 23/4/04. Since the policy expired on 16/3/04, the complainant is snot entitled to get benefits of the policy.  Another contention raised is that  the insured has violated  general condition No.2 of the policy.  The reason stated for that is the deceased was discharged from the hospital by the request of the complainant.  By that they have not taken  all reasonable precautions stated under the  condition No.2 of the policy.  Another contention raised is that the insured has misrepresented the material facts while incepting the policy by not disclosing the pre-existing mental abnormality of the insured.  These are the main contentions put forward by the 1^st opposite party before the Forum.

          10. It is seen from the records before us that the deceased Gopinathan met with an accident on 7/1/04 and he died on 23/4/04. He was admitted at Aswini hospital with severe head injury on 7/1/04 and treated there upto 24/1/04.  He was unconscious  from the date of accident till his death.  Considering the date of death  of a patient, who met with a road traffic accident 3 ½  months back, and was unconscious till death, for  disallowing a policy benefit is not only deficiency in service but utter unfair trade practice also.  It is very evident from the records that the cause of death was the sole and direct occurrence of the accident.  As per Exhibit R1 policy condition clause (a) of compensation portion “if such injury shall within 12 calendar months of its occurrence be the sole and direct cause of death of the insured person  the sum insured as specified in the schedule of insurance,  shall be paid to the assignee/legal personal representatives of the  insured person”.  Here the cause of death is undoubtedly  proved that the accident happened on 7/1/04.  So the complainant being a beneficiary under the policy is entitled to get the sum insured as specified in the schedule of policy.  As per the policy schedule sum insured is mentioned as PA plus hospitalization.  That means Rs.80,000/- + Rs.20,000/-, altogether Rs.1,00,000/-.  Therefore, the complainant is entitled to get Rs.1,00,000/- as compensation under the policy. 

          11. From 7/1/04 deceased Gopinathan was treated as inpatient at Aswini hospital, Thrissur.  During that period all the available treatments there was provided including the assistance of ventilator to  the deceased.  Poor coolie workers provided this much treatments as inpatient at well known private hospital.  Since the expenses became unaffordable and the treating doctor opined that the same treatments can be continue at home, they brought the patient to their house and continued all the treatments prescribed from the hospital.  It cannot be considered  that the complainant had violated the stipulation  contemplated under the general condition No.2 of the policy.  Can it be considered that the relatives of the insured has not taken reasonable care and attention ?  The private hospital authorities never give discharge to such a serious  patient without taking all precautionary endorsements, even though no need of the  treatment as inpatient is necessary.  Regarding Clause 3 of general condition, misrepresentation and  concealment of any material facts  etc.  the burden is upon the 1^st opposite party to bring out the point with cogent proof before the Forum that the insured was having pre-existing disease which is deliberately concealed by him at the time of incepting the policy.  Nothing has been done by the 1^st opposite party.  They relied on a mention in the discharge summary.   The concerned doctor who alleged to be  mentioned  the point in the discharge summary is  not examined before  the Forum.  The discharge summary is also not properly marked.  A mere mention in the general history portion of the discharge summary of a patient,  who was unconscious from the time of admission till his death cannot be considered as a proof at all to decide a question of misrepresentation or suppression of material fact.  Grabbing upon such a meager piece of evidence to disallow the benefit under the policy is unexplainable and fatal.

          12. Considering the points discussed hereinabove, we are of the opinion that the complainant being the beneficiary under the policy is entitled to get Rs.1,00,000/-.  The denial of that  by the 1^st opposite party is amounts to utter deficiency in service on their part.

          13. In the result we allow this complaint and the 1^st opposite party  is directed to pay Rs.1,00,000/- (Rupees One lakh only) with 12% interest from 13/3/06 on which date they have repudiated the claim along with Rs.10,000/- (Rupees Ten thousand only) as punitive cost for deficiency in service and Rs.2,500/- (Rupees Two thousand and five hundred only) as costs of this litigation to this complainant within one month from receiving the copy of this order.

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 25^th  day  of June  2015.