INDIRABEN MADHUBHAI BEDEKAR vs NEW INDIA ASSURANCE CO.

BY consent of the learned Advocates, both these appeals are taken up for disposal together as facts of both the cases are almost similar, although they arise from two different policies of insurance covering risk of accident.

APPEAL No. 252 of 2003 arises from order dated 21.2.2003 rendered by the learned Consumer Disputes Redressal Forum, Banaskantha in Consumer Case No. 67 of 2002 and APPEAL No. 253 of 2003 arises from order dated 21.2.2003 rendered by the same Forum in Consumer Case No. 64 of 2002. In Consumer Case No. 64 of 2002 the policy of insurance was in the sum of Rs. 5,00,000. The said personal accident policy was taken on 15.10.1997. In Consumer Case No. 67 of 2002 such policy was in the sum of Rs. 1,00,000. Both the policies were taken by the complainant''s deceased husband Madhubhai Shankarlal Bedekar, who is alleged to have died on account of having had a fall in the bathroom (chokdi) during night time (10.20 O''clock) on 21.3.2001. On account of such fall the deceased insured slipped on to the rest of the stair case resulting in impact on his head. Deceased insured sustained haemorrhage and was admitted to the Civil Hospital at Deesa. Dr. N.P. Sutharia declared him dead and case was registered as accident Case No. 3/2001 in Deesa City Police Station. The complainant who is widow of deceased insured filed claim before the opponent Insurance Company in respect of the aforesaid policies and as the claim was not entertained, she filed aforesaid consumer complaints before the learned Forum. Before the learned Forum, post-mortem report was produced. Other evidence were also produced. From the evidence it prima facie appeared that deceased insured was suffering from high blood pressure and he had taken treatment for the said ailment prior to the date of the accident. This ailment was not disclosed at the time of taking of insurance. That apart, even the accident was reported to have occurred on account of the deceased insured having sustained attack of high blood pressure. Reference in this connection has been made to the FIR lodged with Deesa Police Station where it was reported that deceased insured was treated for blood pressure on a couple of occasions by Dr. Makwana of Deesa. Complainant also made statement before the Investigator. Under such circumstances, at the time of admission of appeal these facts were verified in the order passed by this Commission on 17.11.2002. The appeals were admitted for enabling the learned Advocate for the complainant to explain the cause of death which was stated to be ''intracronial sub-arachloid haemorrhage due to head injury''. At the time of hearing of both these appeals, learned Advocate for the complainant in both these appeals could not lay hand on any medical literature which prima facie would indicate that such an injury would not occur on account of high blood pressure or hypertension but it would have occurred on account of internal injury due to accident. The learned Advocate for the opponent Insurance Company in both these cases has made reference to a decision of this Commission in the case of Bharatiben Dahyabhai Patel v. LIC of India, reported in II (2003) CPJ 461, where this Commission had an occasion to consider similar finding of cause of death. In that case also finding was ''sub-arachloid haemorrhage'' and it was noticed that such haemorrhage would occur due to hypertension/diabetes. Under such circumstances it was ruled by this Commission that absence of evidence to indicate cause of death being accident will result into dismissal of the complaint but as the complainant has not been able to produce evidence with regard to the cause of death being injury due to accident, the learned Forum is justified in passing the order relegating the complainant to her remedy before appropriate Civil Court. In rendering the aforesaid decision we have also taken into consideration the decision of the Apex Court in the case of United India Insurance Company Limited v. M/s. Pushpalaya Printers, reported in I (2004) CPJ 22 (SC)=II (2004) SLT 263=AIR 2004 SC 1700, where the terms and conditions of the policy were required to be construed, decision of National Commission in the case of National Insurance Company Limited v. Prakash Shah, reported in I (2004) CPJ 7 (NC) where the National Commission was required to consider a case regarding suppression of material fact, decision of Delhi State Consumer Disputes Redressal Commission in the case of New India Assurance Company Limited v. Mrs. Pushpa Verma, reported in I (2004) CPJ 388, where claim under mediclaim policy was repudiated on the ground of pre-existing disease and it was found that burden of proof was on the Insurance Company to establish repudiation by reliable evidence in support thereof and decision of the same Commission in LIC of India v. Amita Kaushish, reported in II (2004) CPJ 428 which are similarly distinguishable on facts.

In view of what is stated above and in the facts and circumstances of the case following order is passed. ORDER Both these appeals are dismissed, reserving liberty to the complainant to approach appropriate Civil Court in which case time taken in prosecuting the complaint and appeal will be available to the complainant by virtue of the decision of the Hon''ble National Commission in Kailashchandra Jain, MD., Saraogi Oxygen Ltd. v. Bihar State Electricity Board and Others, reported in 2002 CTJ 863 (NC) in which reliance has been placed by the Hon''ble National Commission on the decision of the Hon''ble Supreme Court in the case of Laxmi Engineering Works v. PSG Industrial Institute, II (1995) CPJ 1 (SC)=AIR 1995 SC 1428. There will be no order as to costs. Appeal dismissed.