BRANCH MANAGER, NATIONAL INSURANCE CO. LTD. vs M.R. Suma

THE National Insurance Company Ltd. (for short ''''the Insurance Company '''') has filed this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short ''''the Act ''''), questioning the correctness and legality of order dated 17.10.2008 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short ''''the State Commission '''') in Appeal No. 851 of 2008. The State Commission has affirmed the order, dated 18.03.2008, passed by the Mandya District Consumer Disputes Redressal Forum in CC No. 152 of 2007, inter alia, directing the Insurance Company to pay to the Respondent/Complainant a sum of Rs.10,00,000/ - with interest @ 8% p.a. from the date of repudiation of the claim preferred by the Respondent under the Janatha Personal Accident Insurance Policy.

SHORN of unnecessary details, the facts material for the purpose of deciding the present Petition are that: grandfather of the Respondent took the afore -noted policy, whereunder the Insurance Company undertook to indemnify the insured for the following: - ''''If the Insured shall sustain any bodily injury resulting solely and directly from Accident caused by outward, violent and visible means then the Company shall pay to the Insured the sum hereinafter set forth that is to say:

(a) If such injury shall within Twelve Calender months of its occurrence be the sole and direct cause of the death of the Insured the capital sum insured stated in the Schedule, the amount payable under this clause shall be paid to the Nominee shown in the Schedule.

(b) ... ... .....

THE sum assured was Rs.10,00,000/ -. The policy was valid for the period from 18.11.1998 to midnight of 17.11.2005. The Respondent was named as the nominee. On 24.02.2004, the insured had a fall from a six feet high platform, resulting in fracture of Left Trochanter of Femur. He was admitted to a Nursing Home, where he was diagnosed as suffering from blood pressure, diabetes and fracture of a bone. On 26.02.2004, he was shifted to Vijayshree Accident Orthocare and General Hospital, where he underwent surgery for Open Reduction and Internal Fixation with DHS Plate and screws and T -band wires. He was discharged on 21.03.2004. He was readmitted in the same Hospital on 20.04.2004 for repeat T -band wiring and was discharged on 29.05.2004. Unfortunately, he expired on 15.06.2004.

ON 01.12.2004, the Respondent, being the nominee of the deceased/Insured preferred claim under the Policy. The Insurance Company appointed a private investigating consultant to verify the claim, who, vide final report dated 28.04.2005, concluded thus: ''''It is opined by the doctors that the deceased was suffering from diabetics, BP and the death does not relate in any way to the injury. They also state that he was aged and the adverse effects could have caused death. ''''

IT appears that the Insurance Company sought some clarification from Vijayshree Hospital relating to the treatment of the Insured. Vide letter dated 01.08.2005, Dr. K. Surendera Shetty, the operating surgeon, gave the following clarification: - ''''After going through the entire case sheet of Mr. Eshwaraih and statements of his son regarding the events after discharge from hospital on 29.05.04, I am of opinion that post operative infection has contributed to his death and it is the direct cause. Diabetics and hypertension also have contributed to the aggravation but not to the causation of death. ''''

THEREAFTER , the Insurance Company sought opinion on the possible cause of the death of the Insured from another Orthopaedic Surgeon, Dr. N. Ravindranath. Vide report dated 13.09.2005 he, while commenting that Dr. K. Surendra Shetty had not mentioned as to what was the severity of infection, observed as follows: '''' Trochanteric failure is one of the common fractures in the elderly (beyond 60 years) and is most often due to weakness in the bones in the hip region and not due to accidental fall. Most often the fall is caused by the fracture and not fracture carried by the fall. Moreover in this case there was no ''accident '' caused by ''outward violent and visible means '' which only is covered by a JPA policy. It is most likely that the trochanteric (sic) fracture was natural consequence of old age and osteoporosis and not due to an accident as claimed. ''''

He finally opined that the claim should be rejected on the ground that ''''a naturally occurring event in an eldering person has been twisted to make it look like an accident for the purposes of laying a claim and entire event has not been substantiated by proper documents. ''''

TAKING into consideration the aforesaid reports, vide letter dated 10.10.2006, the Insurance Company repudiated the claim on the ground that: (i) there was no document to prove that death had occurred due to an Accident; (ii) the panel doctor had opined that Cervicotrochanteric fracture was a natural consequence of old age and osteoporosis and not due to an accident; (iii) the investigator revealed that the insured was suffering from diabetes and hyper -tension for the last 5 years and was on treatment for the same. Presence of the said diseases in an elderly person of 68 years of age, definitely has contributed to alleged ''''slip ''''; and (iv) ''''Slip '''' is not an ''Accident '' caused by accidental, external and visible means.

IT seems that on receipt of legal notice from Counsel for the Respondent, the Insurance Company vide their letter dated 10.07.2007, asked their Panel Investigator, Dr. Aravind Nayak Ammunje, to reinvestigate the case in detail. The said Investigator, vide his report dated 24.07.2007, opined as under: - ''''According to my opinion, the Osteoporosis, a degenerative disease of the bone along with Diabetes, Blood Pressure and earlier paralytic attack and Parkinsonism. The patient must have had a fracture of the lower leg and then had a fall. Therefore, the primary cause is the fracture which made him to fall down and by no means this was due to either injury by external means or accident. This should not be entertained under J.P.A. ''''

BEING aggrieved by the repudiation of the claim, the Respondent filed complaint before the District Forum, inter -alia, praying for award of compensation of Rs.16,50,000/ - along with interest and damages. The complaint was contested by the Insurance Company on the self same pleas, noted above.

EVALUATING the material on record, the District Forum observed as follows: - ''''16. In the present case the sustaining of injury was in February, 2004 and on 15.06.2004 death of the assured took place. So within 4 months from the date of sustaining fracture injury to the left femur due to accidental fall in spite of long treatment in the hospital and in spite of antibiotics the insured died. Further, RW -2 admitted that his investigation revealed that the insured was advised with antibiotics and other medicine for controlling infection. So Ex.R -10 letter coupled with the evidence of CW -2 Dr. Surendra Shetty who treated the insured after the accidental injury and his opinion about the cause of death cannot be disputed at all. Therefore, it is established that the death of insured was on account of the injuries sustained in the accidental slip and we cannot expect the PM report in such cases about the cause of death. ''''

THE District Forum thus, held that there was direct nexus between the death and the injuries sustained by the Insured due to accidental slip in the house on 24.02.2004. There was no dispute that the Insured was admitted to the Nursing Home and was surgically treated by Dr. K. Surendra Shetty, with Open Reductionand Internal Fixation with DHS Plate and Screws and T -band. Thus, the District Forum held that the Insurance Company was not justified in repudiating the claim. Accordingly, the District Forum allowed the complaint and awarded the afore -noted compensation along with costs. Having failed in their Appeal before the State Commission, the Insurance Company is before us.

WE have heard Ld. Counsel for the parties and perused the documents on record. We do not find any jurisdictional error in the impugned order warranting our interference, in exercise of the revisional jurisdiction, with concurrent finding of both the Fora below that there was a clear nexus of fall and fracture with death of the insured. The said conclusion is based on the afore -extracted clarification by the treating doctor (Dr. K. Surendra Shetty), which cannot be brushed aside merely because the Panel doctor (Dr. N. Ravindranath) in his opinion dated 13.09.2005, had surmised that ''''most likely '''' the trochanteric fracture was natural consequence of old age and osteoporosis. Furthermore, Dr. Aravind Nayak Ammunje, claiming to be an ''''Investigator for General Insurances '''', in his re -investigation report dated 24.07.2007, quoted above, while recommending that the claim in question should not be entertained, had added two more ailments viz. earlier Paralytic attack and Parkinson, the insured was alleged to be suffering from. Learned Counsel, appearing for the Insurance Company, candidly admitted that there is no material on record to show that the insured had, in fact, suffered a paralytic attack. Assuming that the Insured was suffering from Diabetes, it could have delayed the healing process of the surgery, contributing to post -operative infection, as opined by Dr. Shetty. In any case, it would not have accelerated the accidental fall, the direct cause of death. Pertinently, Dr. Ammunje had also opined that the primary cause of death was ''''the fracture '''' due to the fall but the same was not due to either injury ''''by external means or accident ''''. The said doctor and the Insurance Company have assigned a very narrow meaning to the word ''''Accident '''', used in the Liability Clause of the Policy. We feel that such narrow construction of the Liability clause, would be repugnant to the manifest purpose of such insurance policies. If the interpretation of the Insurance Company was to be accepted, even an accidental fall from a balcony or roof top would not be treated as an ''''Accident '''' for the purpose of the policy in question. Such a construction would lead to absurdity and unreasonableness which cannot be accepted.

IN our view, the fall in question, resulting in Cervicotro fracture, for which the Insured had undergone surgery, was an ''''Accident '''' falling within the ambit of the said expression. Chances of infection in this kind of surgery are quite high. His re -admission in the Hospital for repeat T -band wiring clearly shows that the fracture was not treated properly when first procedure was performed on 26.02.2004. The Insured expired within a period of less than one month of discharge after the second surgery. In our view, the injury suffered by him as a result of fall from a six feet high platform, had a direct nexus with the cause of death. The liability of the Insurance Company to pay the assured sum arose only because of the death of the insured as a result of the said injury on account of ''''Accident ''''.

IN our opinion, the decision of the Fora below, on merits, is based on cogent material and therefore, directions to indemnify the nominee of the Insured under the Policy is unassailable. However, bearing in mind the fact that the aforesaid two opinions of the Doctors did support the stand of the Insurance Company, it cannot be said that delay in indemnification under the policy was for unjustifiable reasons, notwithstanding rejection of both the reports by the Fora below. Therefore, in our view, it is not a case for award of interest, because of delay in payment of the sum assured in addition to the aforesaid amount of Rs.10,00,000/ -.

CONSEQUENT LY , the Petition is partly allowed to the extent indicated above. All other directions are maintained.

VIDE order dated 22.01.2009, the Insurance Company was directed to deposit 50% of the amount awarded along with interest with the District Forum. The amount, so deposited, shall be released to the Respondent forthwith on receipt or production of certified copy of this order. In case the amount deposited is more than the awarded amount, the excess thereof shall be returned to the Insurance Company. However, if the said amount falls short of the amount payable in terms of this order, the deficiency shall be made good by the Insurance Company within six weeks of receipt of communication, in this regard.

THE Revision Petition stands disposed of accordingly, with no order as to costs.