NEW INDIA ASSURANCE COMPANY LIMITED vs PARULBEN YOGESHBHAI BHATT

BOTH these appeals arise from common order dated 18.7.2003 rendered by the learned Consumer Disputes Redressal Forum, Ahmedabad (Rural). Ahmedabad in Complaint Nos. 356 and 357 of 2001 directing the opponent Insurance Company to pay to the complainants insurance amount of Rs. 3,00,000/- as per the personal accident insurance policy of deceased Yogeshbhai Bhatt and Rs. 24,727.85 as per the Medi-claim policy of the said deceased with interest at the rate of 9%. The learned Forum also directed to pay compensation and cost.

IT is not in dispute that both the insurance policies were taken by deceased Yogeshbhai Bhatt and during the currency of the policy he had a fall from the balcony resulting into the sustaining fractures on his left leg. He was admitted to Orthopaedic hospital immediately and within three days he died on 25.4.2000. Heirs and legal representatives - complainants of both the complaints filed aforesaid complaints as their claim submitted to the opponent Insurance Company was repudiated. IT was the defence of the opponent Insurance Company before the learned Forum that as the deceased tried to pluck leaves of a tree from the balcony, he had a fall and therefore the fall could not be said to be accidental fall but was a result of the negligence on the part of the deceased himself. IT was also the defence of the opponent Insurance Company that the deceased was suffering from diabetes and heart trouble and he died of such disease and not on account of the accident he met with. After appreciating the facts of the case and also the material placed on record, the learned Forum came to the conclusion that the opponent Insurance Company had displayed deficiency in service in repudiating the claim on the basis of the report of the Investigator who was only B.A. and not a medical expert. The learned Forum has dealt with the submissions made on behalf of the opponent Insurance Company and after considering the decisions cited by the parties, came to the conclusion that there was neither suppression of material facts nor any negligence on the part of the deceased. That is how the learned Forum passed the impugned order. We have heard the learned Advocate appearing for the opponent Insurance Company, now the appellant in both the appeals. He would first submit that the deceased insured was negligent in trying to pluck leaves from the tree standing in the balcony and he was therefore negligent in undertaking such an activity and that precisely resulted into the accident in question. It has therefore been submitted that since negligence was cause of his death, the complainants were not entitled to insurance amount under the personal accident policy. We cannot accept this argument. There is no clause in the policy of insurance which would exclude liability of the Insurance Company in a case where accident occurs due to negligence of the insured. In that view of the matter, the submission made on behalf of the opponent Insurance Company cannot be accepted. Besides, even on facts, the learned Forum has come to the conclusion that the deceased insured met with the accident pure and simple.

It has also been submitted that the cause of death certified by the doctor was not accident. In support of this submission reliance has been placed on xerox copy of the medical certificate issued by the Orthopaedic Surgeon in whose hospital the deceased was admitted. There is also xerox copy of the certificate of the physician who had the occasion to visit the deceased in the hospital of the Orthopaedic Surgeon Dr. Yogesh R. Parikh [Parikh Orthopaedic Hospital]. In our considered opinion, in the absence of any affidavit of the concerned doctors, certificates merely go to indicate the consequential ailments which the deceased insured suffered after he had sustained fracture due to accidental fall. They do not take the matter any further. They also do not go to indicate that deceased suffered from such ailments prior to the injury he sustained on account of the accident. In that view of the matter, the certificates do not take the matter any further. Merely because the Orthopaedic Surgeon who had operated the deceased for the fracture certified that the insured died following acute LVF followed by VT and cardio respiratory failure, it cannot be considered that the proximate cause was not the accident and the ailments set out in the certificates. In absence of the affidavits or evidence adduced by the concerned doctors, the certificates cannot be relied upon. Even if the certificates are relied upon, they do not go to indicate that the ailments preceded the accidental injuries.

IN above view of the matter, both these appeals deserve to be rejected at the stage of admission. Order accordingly. Appeals dismissed.