ANKINAPALLI VEERA RAGHAVAIAH vs DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LTD.

SHRI Ankinapalli Veera Raghavaiah the complainant in O.P. No. 50/1996 on the file of the East Godavari District Forum at Kakinada preferred this appeal questioning the order passed therein on 31.7.1998 dismissing his complaint and directing the complainant to approach the Civil Court for appropriate reliefs.

THE case of the appellant who was the complainant before the District Forum is that his junior paternal uncle Sri Yerrayya was living with him since he was an unmarried person, that the said Yerrayya obtained personal accident policy No. 432803/212/00347/Misc/PA/440/ 93-94 for a sum of Rs. 3 lakhs by paying the necessary premium, that the said Yerrayya bequeathed all his properties in his favour under a Will executed by him on 15.3.1992 in a sound and disposing state of mind, that while himself and the said Yerrayya were proceeding in a taxi on 27.12.1994 one lorry hit the said taxi and consequently the said Yerrayya received multiple injuries including head injury, that the I Town Police Station, Rajahmundry filed a criminal case against the said driver, that the said Yerrayya took medical treatment from Visakhapatnam Hospital and also some other hospitals and psychiatrist at Rajahmundry and that ultimately the said Yerrayya died due to injuries on 19.5.1995. THE further case of the complainant is that even before the death of the said Yerrayya he made a claim before the opposite party i.e., Divisional Manager, the Oriental Insurance Company Limited, for payment of the medical expenses, that after the death of the said Yerrayya he made a claim for payment of the policy amount, but the opposite party did not settle his claim, that he got issued a registered notice through Advocate on 3.10.1995 but in vain and that he is entitled to a sum of Rs. 3 lakhs. He prayed for a direction to the opposite party to pay a sum of Rs. 3 lakhs and also costs of the complaint. The opposite party filed objections resisting the claim of the complainant and contending that the policy in question was obtained with false declaration and statement regarding the income of the deceased Yerrayya though the deceased Yerrayya had no gainful employment to earn a monthly income of Rs. 7,000/-, that the deceased Yerrayya was of unsound mind and obtained the policy by suppressing the fact relating to his mental disorder, that the death of the deceased Yerrayya was not due to head injury inasmuch as the Civil Assistant Surgeon of Government General Hospital, Rajahmundry issued a medical certificate stating that he sustained only simple injuries, that the charge sheet in Criminal Case C.C. No. 324/1995 on the file of Special II Class Magistrate, Rajahmundry also shows that he sustained only simple injuries, that one Dr. Ramachandra, Radiologist had opined that there was no brain injury to Yerrayya due to accident, that one Dr. Ramalinga Sastry also opined that the death of Yerrayya was unlikely of head injury, that the investigator, appointed by the opposite party submitted his report on 11.8.1995 stating that Yerrayya sustained minor injury on his frontal head which did not cause any syndrome, that there was no truth in the claim made by the complainant, that after applying its mind the claim of the complainant was rightly repudiated, that there was delay on the part of the complainant in sending the required documents, that the complainant rushed to the District Forum even when his claim was under investigation, that the controversy in the question requires voluminous evidence and therefore the matter has to be decided by a Civil Court and that there is no deficiency in service on the part of the opposite party and that the opposite party is not liable to pay the policy amount to the complainant.

After the opposite party filed its objections the complainant filed a rejoinder affidavit dated 1.8.1996 refuting the allegations made by the opposite party and reiterating his own case.

AT the time of enquiry the complainant filed some documents which were marked as Exs. A-l to A-14 on his behalf and the opposite party got Exs. B1 to B-6 documents marked in defence. After hearing both parties and after considering the material on record, the District Forum came to the opinion that the material collected by the opposite party discloses that the death of the deceased Yerrayya was not due to head injury sustained in the accident and that the opposite party was justified in repudiating the claim of the complainant keeping in view the material available before it and that the failure of the complainant to get the autopsy done on the dead body of the deceased Yerrayya also lends support to the view taken by the opposite party and that there is no deficiency in service on the part of the opposite party and accordingly passed the impugned order dismissing the complaint.

THE point for consideration is whether there is deficiency in service on the part of the opposite party. The learned Counsel appearing for the appellant submits that the District Forum erred in reaching the conclusion that there was sufficient material before the opposite party to come to the conclusion that the death of the deceased Yerrayya was not due to head injury ignoring the evidence on record that the deceased Yerrayya took medical treatment in the Government Hospital for mental care, Visakhapatnam and also in Harita Psychiatry Hospital, Rajahmundry for Organic Brain Syndrome which was the result of the head injury sustained by him in the accident, that the District Forum has not properly appreciated the evidence on record, that the opposite party should not have relied upon Ex. B-3 scan report of Dr. Ramachandra and Ex. B-4 report of Dr. Ramalinga Sastry stating that the death of the deceased was unlikely due to head injury simply basing on the scan reports without personally examining the deceased when he was alive, that the mere fact that the brain damage was not reflected in the scan reports cannot be a ground to conclude that there was no brain damage since there is likelihood of the brain damage not reflecting in the scan reports and that inasmuch as there is abundant evidence to show that the deceased took medical treatment for Organic Brain Syndrome the case of the complainant has to be accepted. On the other hand the learned Counsel for the respondent/opposite contends that the issue before us being whether or not there is deficiency in service on the part of the opposite party, the scope of the enquiry in this matter is limited to the adjudication of the point whether there is sufficient material before the opposite party to justify the repudiation of the claim of the complainant and that since Exs. B-3 and B-4 reports of two doctors clearly indicate that the head injury could not have caused the death of the deceased apart from the medical certificate issued by the Government Hospital showing that the injuries sustained by the deceased Yerrayya are simple injuries the opposite party is justified in repudiating the claim of the complainant and the District Forum rightly dismissed the complaint. It may be seen that Ex. B-l wound certificate (xerox copy) of the deceased Yerrayya filed by the police before the Court of the Special Judicial Second Class Magistrate, Rajahmundry mentions that the deceased Yerrayya sustained a lacerated injury of 2 cm. x cm. over the right frontal region and swelling of 3 cms. x 2 cms. over the right skin of Tibia and those injuries are simple in nature. It is true that the xerox copy of the certificate dated 11.3.1995 issued by the Superintendent, Government Hospital for Mental Care, Visakhapatnam mentions that the deceased Yerrayya was seen on 7.2.1995 with Organic Brain Syndrome as a sequel of head injury and he was being treated as out-patient with an advice to come for review periodically and Ex. A-14, the xerox copy of the certificate issued by Harita Psychiatry Hospital, Rajahmundry mentions that the deceased was treated during his last days for brain injury related to Organic Brain Syndrome which he sustained due to an injury received in a road accident and he was being treated by Phychiatrist during his last days for about 6 days and that he died due to brain damage which he sustained in the accident and that due to brain damage he went into coma and then succumbed on 19.5.1995.

IT may be seen that except the above mentioned certificates, there is no medical evidence to show what kind of treatment was given to the deceased Yerrayya and that the deceased Yerrayya was in coma for some time. IT is pertinent to note that though it is the case of the complainant that the deceased Yerrayya died of brain damage caused on account of the head injury and though a criminal case was pending against the driver of the lorry which hit the taxi in which the deceased and the complainant were traveling at the time of the accident, the complainant has not chosen to inform the police about the death of the deceased and to ask for an autopsy over the dead body of the deceased. The Investigator appointed by the opposite party submitted his report Ex. B5 stating that his investigation disclosed that the deceased Yerrayya died in suspicious circumstances, that the deceased was mentally sick since long time and that there was a rumour that the complainant himself killed the deceased on 19.5.1995 and burnt the dead body without intimating the police even when the criminal case was pending before the Special Judicial Second Class Magistrate Court at Rajahmundry against the driver of the lorry. Though it is not for us to accept the report of the Investigator as to the cause of the death of the deceased Yerrayya, we have enough material to indicate that the death of the deceased was not due to head injury and that the deceased died in suspicious circumstances. The failure of the complainant to intimate the police about the death of the deceased Yerrayya even when a criminal case was pending before the Criminal Court also lends support to the Investigator''s finding that the deceased died in suspicious circumstances. Exs. B-3 and B-4 reports given by two doctors stating that the scan reports referred to them by the opposite party do not indicate that the deceased died of brain damage due to the head injury also shows that the opposite party has sufficient material before it to repudiate the claim of the complainant. The extracts of the textbook ''Neurosurgery'' furnished by the learned Counsel for the appellant only mention that "Often CT and MR may be normal with no obvious demonstrable pathology" at page 362 and also mention at page 2391 that "The CT and magnetic resonance imaging (MRI) scans are usually normal" and they do not say that the CT scans do not reflect the brain damage on account of the head injury. Therefore we are not inclined to accept the contention of the learned Counsel for the appellant that the fact that the CT scans of the deceased have not reflected damage to the brain of the deceased is not a reliable circumstance to conclude that there was no brain damage. Admittedly the deceased Yerrayya died about 5 months and 22 days after the accident. There is no evidence that he was in coma. As there is sufficient material like Investigator''s report, Exs. B-3 and B-4 medical reports of two doctors before the opposite party for coming to the conclusion that the death of the deceased was not due to brain damage on account of the head injury, we are of the opinion that the opposite party applied its mind and repudiated the claim of the complainant and that the repudiation by the opposite party is not arbitrary and that there. is no deficiency in service on its part. Accordingly we hold that there is no basis to interfere with the order of the District Forum.

IN the result, the appeal is dismissed but without costs in the circumstances of the case. Appeal dismissed. _______________