BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD. & ANR. Vs YASHODA

This revision petition has been filed by Branch Manager, New India Assurance Company Ltd. against the order dated 8.04.2011 in FASR No.842 of 2011 and order dated 16.12.2010 passed in F.A No.1107/2008 by the State Consumer Disputes Redressal Commission, Andhra Pradesh, (in short, ''the State Commission'').

In short the case is that the husband of the respondent/complainant late M. Narayana obtained Policy under long term Janata Personal Accident Insurance Plan with profits and accident benefits for the sum of Rs.5,00,000/- through policy No.4760199/1326 (4761240050199 dated 03.03.1999) from the petitioner. The policy covers only the accidental risks including death. The complainant/respondent is the nominee to the said policy.

The husband of the respondent died on 10.04.2000. The respondent lodged a complaint before the police, Narayanpet on 11.04.2000 at 9:00 A.M. about the death of her husband wherein she claimed that the death of her husband was due to snake bite. Accordingly, FIR No.40/11.04.2000 under Section 174 Cr.P.C., was lodged at P.S. Narayanpet. The Civil Surgeon of Community Health Centre, Narayanpet of Mahabubnagar Dist. Performed post mortem examination (PME) on 11.04.2000 at 12.35 p.m. on the deceased. The post mortem examination revealed that no anti-mortem injuries were found on the dead body.

The Civil Surgeon in-charge of the concerned Community Health Centre, Narayanpet of Mahabubnagar Dist. sent a piece of items of dead body for chemical analysis to the Forensic Science Laboratories, Hyderabad. In the said FSL Report, it is mentioned that "the above items are analysed, but no poisonous substance is found in them".

After receiving the FSL report, the Civil Surgeon of Community Health Centre, Narayanpet of Mahabubnagar Dist. who performed PME gave his final opinion. In the final opinion, the doctor opined that the cause of death to the best of his knowledge was: 1) The absence of poison, FSL rules out death out to poisoning.

2 Poison due to snake bit cannot be detected by chemical examination and by Director of Forensic Laboratory.

3) As there is no gross internal or external injuries death due to injury is ruled out.

4) In the absence of any medical history of disease and any gross pathological changes, death due to natural cause is ruled out.

5) Though the cause of death in this case may be termed as undetermined because Director FSL and the putrefactions of the body could have caused difficulty in locating the bite marks due to any poisonous animal or insect, I do not rule out the possibility of accidental death caused by some bite of poisonous animal or insect.

As the cause of death was not conclusive, the Insurance Company sent the case for opinion to the head Department of Forensic Medicine at KMC Mangalore. Their report dated 01.8.2001 mentioned that autopsy report was not scientifically acceptable on the basis of which Insurance Company sent repudiation letter dated 7.2.2002. Then the respondent filed a consumer complaint No.15 of 2007 before the District Consumer Disputes Redressal Forum, Mahabubnagar, (in short ''the District Forum'') which was dismissed on 30.01.2008. Aggrieved by the order of the District Forum, the complainant filed FA No.1107 of 2008 before the State Commission. The State Commission vide its order dated 16.12.2010 allowed the appeal. The complaint of the claimant was allowed and the petitioner was directed to pay Rs.5,00,000/- together with interest at 9 % per annum from the date of repudiation i.e.07.02.2002 till the date of realization together with cost of Rs.2,000/-.

Aggrieved with this order of the State Commission, a review was filed by the petitioner before the State Commission which was rejected vide their order dated 08.04.2011. The present revision petition has been filed by the Insurance Company.

We heard the learned counsel for the petitioner as well as for respondent and perused the records carefully.

Learned counsel for the petitioner argued that the Insurance policy only covered the accidental death and not the normal death. Though, it was alleged by the respondent that the insured died of snake bite, but it has not been proved by the post-mortem or even by the FSL report. After getting the FSL report, the Civil Surgeon of concerned Community Health Centre gave his final opinion about the death of the insured, wherein he has clearly mentioned that the cause of death remains undetermined. There is absence of poison as FSL rules out death due to poisoning and poison due to snake bite cannot be detected by chemical examination and by Director of Forensic Laboratory. In the last part of his report, he has mentioned as follows:- "Though the cause of death in this case may be termed as undetermined because Director FSL and the putrefactions of the body could have caused difficulty in locating the bite marks due to any poisonous animal or insect, I do not rule out the possibility of accidental death caused by some bite of poisonous animal or insect."

Learned counsel stated that these remarks are based on imagination of the concerned doctor and cannot be held to be true. Moreover, the Insurance Company has got this report examined from the Head of the Department of Forensic Medicine KMC, Mangalore and his reported dated 01.8.2001 has clearly shown that autopsy report was not scientifically acceptable. KMC Mangalore is a prestigious Institution and its report cannot be brushed aside.

Learned counsel for the respondent/complainant stated that the First Information given to the police by the complainant mentions the snake bite as cause of death. Moreover, the final opinion of the Civil Surgeon of the concerned Community Health Centre also corroborates the fact that possibility of accidental death due to snake bite or bite by any poisonous animal or insect cannot be ruled out. He has also mentioned the possibility that putrefactions of the body could have caused difficulty in locating the bite marks. In the final analysis, the concerned Civil Surgeon, who is authorized doctor to finally give report on cause of death, has not ruled out the death due to snake bite or bite by some poisonous animal or insect while giving no other specific cause of death. He has also given the report that death due to natural cause is ruled out. This report of the Civil Surgeon actually strengthens statement of the respondent in the First Information Report to the police. Hence, the State Commission has rightly decided the issue and no interference from the National Commission is called for.

There is no dispute that the husband of the complainant/insured died on 10.4.2000 during the currency of the policy. The concerned Civil Surgeon is the rightful authority to give his report on the cause of death. In his final opinion, he has opined that no natural cause can be attributed to the death of the deceased rather he has clearly mentioned that the possibility of death due to snake bite or bite of any other poisonous animal or insect is not ruled out. He has also mentioned that putrefactions of the body could have caused difficulty in locating the bite marks. Though, the cause of death remains undermined, as per the Civil Surgeon''s final opinion the death due to snake bite or bite by any poisonous animal or insect has not been ruled out. Therefore, we are of the considered view that the case is eligible for indemnification under the policy. However, due to no clear medical finding on actual cause of death, we are of the view that interest of justice will be served if this case be settled on non-standard basis at 75% of the insurance amount. Accordingly, the revision is partly allowed and the order of the State Commission dated

16.12.2010 is modified to the extent that the Insurance Company/ the petitioner is directed to pay 75% of the insurance amount i.e. Rs.3,75,000/- (Rupees Three lakhs seventy five thousand only) to the respondent/complainant instead of Rs.5,00,000/- (Rupees Five lakhs) as ordered by the State Commission. Rest of the order of the State Commission remains unchanged. The petitioner is directed to comply with this order within 45 days, failing which additional interest of 5% shall be payable by the petitioner from the date of this order till realization. Both parties to bear their own costs.