RASHMI JALOTA vs NEW INDIA ASSURANCE CO. LTD.

THE true import and scope of a Group Personal Accident Policy issued by the nationalized Insurance Companies is the larger significant question in this complaint. More pointedly at issue is the controversy whether the death of the widowed complainant''s husband was caused by an accident or other wise?

LEARNED Counsel for the parties are unreservedly agreed that herein there is no dispute whatsoever on facts. These may, therefore, be noticed with relative brevity. The Late Shri Yogesh C. Jalota, the husband of the complainant was an employee of the Yamuna Syndicate Limited (Opposite Party No. 3). The said concern through M/s. Escorts Dealers Development Association Ltd. (Opposite Party No. 2) had taken out a Group Personal Accident Insurance Policy for its employees with the New India Assurance Company Limited (Opposite Party No. 1). It is common ground that Shri Jalota was fully covered by the said policy. Shri Y.C. Jalota (hereafter called the deceased) alongwith another co-employee Shri Sudhir Mohan had accompanied Shri Ramesh Malhar, the Managing Director of the Yamuna Syndicate Limited on an official visit to Bangalore in August 1990. Shri Sudhir Mohan and the deceased were staying in one room in a hotel in Bangalore and on the morning of the 12th of August, 1990 both of them left the hotel in the course of their official duties. While they were walking along a cinema hall called ''Pallavi at about 11.30 a.m., the right knee of the deceased forcibly dashed against the panel of a cycle resulting in the dislocation of the patela and causing acute pain and agony to him. His companion Sudhir Mohan managed to put him in a motor vehicle (the deceased was unable to stand) and immediately took him to the well known St. Martha Hospital in Bangalore. Because the deceased complained of acute chest pain apart from the injury on the knee, the hospital staff carried out certain investigations including an E.C.G. of the heart of the deceased. Owing to the broken tissues of the knee and patela, the doctor thought it necessary to put the whole of his right leg and thigh in plaster. During this process the deceased complained about acute chest pain, but apparently because the E.C.G did not disclose any serious heart injury, he was given a sedative and after a bed rest of about two hours at the St. Martha Hospital was discharged there from around 2.30 p.m. The deceased on a stretcher was put in an ambulance and taken to his hotel, but before he could reach his room he started feeling very uneasy and started breathing hard and ultimately fainted. Noticing his serious condition Sudhir Mohan immediately rushed him back to the same hospital in the same ambulance van, where the deceased was attended to in the emergency ward. However, despite all medical aid the deceased could not survive and died of cardiac arrest around 3.30 P.M on that very day.

The necessary formalities after the death of the deceased were carried out by Sudhir Mohan under the'' instructions of the Managing Director and the body was sent to the Government hospital for a post-mortem which took place at 12 noon on the following day of 13th of August, 1990. The First Information Report was also lodged at Bangalore and the requisite certificates for carrying the dead body to Yamuna Nagar were secured and ultimately the same was cremated at the said place.

M/s Yamuna Syndicate Limited,, the employer of the deceased duly paid the compensation due to the widow and her two minor sons under the Workmen Compensation Act vide certificate C-1. They also lodged a claim for the payment of Rs. 65,000/- with the New India Assurance Company Limited (hereinafter called the Insurance Company) through Opposite Party No. by complying with the necessary formalities of forwarding the claim form with the statement of facts and enclosures thereto. The relevant documents are annexed as C-2 and C-3. The Insurance Company first sought some clarification vide Annexure C-4 with regard to the cause of death, whether the same was accidental or otherwise to which Opposite Party No. 3 firmly responded and replied that the death of the deceased had been the direct result and consequence of the injury suffered by him in the accident. It would appear that despite protestations from the Opposite Parties Nos. as also, the complainant''s widow, the Insurance Company dilly-dallied in finalizing the claim. Exaspirated by the delay, deficiency and negligence on the part of the Insurance Company the widow filed the present complaint on the 6th of November, 1991 seeking the payment of Rs. 65,000/- as the insurance amount plus Rs. 15,600/- towards interest for the delay in payment thereof and a further sum of Rs. 25,000/- for suffering and mental torture caused by the delay in paying her lawful dues. This claim was made entirely against the Insurance Company and it may be mentioned at this very stage that the said company ultimately repudiated all liability under the policy. On notice being issued in the complaint, Opposite Parties Nos. 2 and 3 also filed their written statements primarily highlighting the fact that they were only Performa parties because no relief was claimed against them. On merits and in substance they supported the stand and the claim of the complainant. However, Opposite Party No. 1 the Insurance Company strenuously contested the same in its written statement. Whilst not laying any challenge to the factual aspects of the case, the basic stand taken on their behalf was that Shri Jalota died a natural death due to cardiac failure and the same was not due to accident and consequently not covered by the Group Insurance Policy. It was averred that the payment of compensation under the Workmen Compensation Act, did not have any relevance to the claim against them. It was suggested that the delay in finalizing the case was due to the fact that certain documents were not received and particular reliance was sought to be placed on the observation in the post-Mortem report that Shri Jalota had died of Cardiac arrest which was a natural cause. The hyper technical stand taken was that the Group Insurance Policy did not extend to the facts of the case because the deceased had suffered a heart attack which was the primal cause of his demise. All liability for the claim or the interest due thereon or damages was thus denied.

IN support of her factually unchallenged case, the complainant has placed on record her own affidavit as also the more detailed one of Shri Sudhir Mohan (who had accompanied and remained with the deceased at Bangalore) alongwith a number of documents including the crucial post-mortem report. The authenticity of these documents has not been challenged by the Opposite Party Both the complainant and Shri Sudhir Mohan were cross-examined by the learned Counsel for the INsurance Company without making any dent in their basic testimony. In defense the affidavit of Shri Viney Kumar Malik, Branch Manager of the Opposite Party No. 1 was placed on record alongwith the unchallenged accompanied documents thereto including the policy form for Group Personal Accident Policy. Mr. Malik was also put into the witness-box and cross-examined at some length by the learned Counsel for the complainant. It bears repetition that herein it is the admitted position of the parties that there is no dispute whatsoever on facts. It consequently becomes unnecessary and indeed would be wasteful to repetetively refer to the individual pieces of evidence by way of affidavits and the cross examination of witnesses as also the documentary evidence placed on the record which as already noticed is not the subject-matter of any challenge. Indeed the solitary and primal question is whether on the admitted sequence of events the death of Shri Yogesh C. Jalota was the result of accident suffered by him or was due to natural cause and, therefore, beyond the cover of the insurance policy.

BEFORE adverting to the rival stands of the learned Counsel for the parties it is not only apt, but indeed necessary to notice the true import and the salient features of the Group Personal Accident Policy admittedly issued by the New India Assurance Company Limited (Opposite Party No. 1). As is manifest from the very name and heading thereof a policy of this kind is not intended to apply to any particular individual, but to a large group of persons or employees which may well runs into thousands. The opening part of the policy indicates that its general terms are to be made applicable to a schedule attached thereto containing seriatim the names and particulars of persons insured. In consideration of the payment of the premium the insuring Company covers the risk of bodily injuries and of death caused to any of the insured persons as a result of any accident. The detailed clauses of Para 1 fix the percentage of the capital sum insured which is to be paid for the bodily injuries specified therein. Clause (g) thereof specifically covers the case of death resulting from such accidental bodily injuries. The policy then provides for detailed exceptions under which the Company shall not be liable to provide compensation either totally or partially. Lady, the conditions which govern the payment of the claim etc have been provided with meticulous detail.

SHRI B.D. Malik, Branch Manager of the New India Assurance Company Limited appearing on their behalf admitted in his cross examination that this particular insurance policy covered as many as 4561 employees of 338 Dealership of M/s Escorts Dealers Development Association Ltd. including those of the Yamuna Syndicate Limited. Very significantly he stated that this being an accident policy no physical or medical examination of the individual employee covered thereby is taken/ It necessarily follows that the accident cover as provided by this policy in bulk to employees is without any reference or connection to the individual health or medical condition of the employees or the presence or otherwise of any pre-existing physical disease in any one of them. Once the Insurance Company accepts the risk on the payment of the premium and the satisfaction of the other conditions then the employees contained in the schedule become insured persons irrespective of the individual condition of health of each one of them at the time of the taking of the policy or during the subsequent period of time for which the policy is taken out or renewed. It deserves highlighting that the insurance policy enumerates a number of exceptions against the cover provided, but not one of them relates ever remotely to the pre-existing health condition of the individual employee or the group covered thereby. From the above, it would be somewhat plain that the Group Personal Accident Policy is intended to provide insurance cover against bodily injury or death resulting from an accident to a group of persons as a collective whole. The individual physical condition of each person of the said group and the presence or otherwise of any pre-existing disease in an individual either at the time of insurance or which may occur during the subsistence of the policy (or its extension by renewal) is not of any material relevance, at all. The crux of the matter is that the bodily injury or death must be the proximate result of an accident.

Two things deserve somewhat pointed notice before one adverts to the individual facts and merits of the case. Clause 1 of the policy form in a way defines the scope of the term accident for which insurance cover is provided thereby. It runs in the following terms :- "Sustains any bodily injury resulting solely and directly from accident caused by external, violent, and visible means- ."

A plain reading of the above would indicate that accident means any bodily injury caused by external, violent and visible means. Herein there is no factual dispute that the deceased had with great violence aid impact hit the paddle of a cycle which immediately resulted in the dislocation of the patella of his knee and broke and crushed the fleshy tissues there under. On the accepted facts, therefore, there can hardly be a doubt that the incident was one where the injury to the knee of the deceased was the result of external, violent, and visible means. Nor there is any dispute that the insurance policy fully covered and was attracted in the case of the deceased. The solitary question is as to what was the ultimate result of the accidental injury and whether the same is within the ambit of the insurance policy. A factor which cannot also be lost sight of is that for this very injury and the consequential death of the deceased, his widowed wife and children have been paid compensation under the Workmen Compensation Act, 1923 through the medium of the Commissioner. Though it is the Opposite Party''s case that this factor is not conclusive, the fact remains that the broad spectrum of paying compensation for accidental injury suffered by a workman during the course of his employment, under the Act aforesaid is similar and analogues to, if not identical to the insurance cover provided to employees under the Group Persona Accident Policy.

COMING to grips with the actual controversy the main sheet-anchor of the defense projected by Mr. Pardeep Bedi, learned Counsel for the Opposite Party No. 1 rests on the post-mortem report conducted on the body of the deceased on the 13th of August, 1990 at 12 noon in the Victoria Hospital, Bangalore. The learned Counsel placed particular reliance on the fact that therein it was noticed in the relevant column of the said report that the heart of the deceased was enlarged and flabby and weighed 400 gms. Resting himself on that observation the contention was that the deceased had a weak heart and he failed to bear the shock and injury to his knee which another man with a very strong heart might well have survived. In essence the argument was that the deceased had a pre-existing heart condition and this fact by itself would exonerate the Insurance Corry their liability under the policy. This argument has only to be noticed that rejected. It has been earlier discussed and held that the very nature of the Group Accident Policy and the total absence of any medical check-up of individual persons and employees covered thereby before accepting the risk, renders the question of any pre-existing disease wholly irrelevant to the issue. Particularly in the context of death occurring through shock and pain (resulting in heart failure) due to accident, a complete answer is provided by the following conclusion in ''Madras State Electricity Board v. Ambazhitingal Ithachutti Umma II 1966 LLJ 12. : The principle in heart cases seems to be that, if death or disability is due to heart attack which resulted from the exertion of the employee in the performance of the duties of his employment, compensation should be awarded. If death of an employee is brought about by an injury due to some mishap, or accident, happening during the course of his employment, the fact that deceased had a chronic ailment which rendered him more susceptible to such injury than an ordinary person would be, will not defeat the right to compensation. The fact that the injury and the pre-existing disease combined to produce the disability does not prevent the injury being commendable in nature and it is not necessary to prove that the injury accelerated or aggravated the disease or that the accident complained of was a contributory cause to the injury. If the accidental injury suffered in the course of his employment is the proximate cause of the employee''s death, the previous physical condition is unimportant." The above view has held the field and has been recently reiterated in II (1991) Accident Claim Cases 633 ''The management of Vanniar Estate Highways, Madurai v. Kamatchi and the Commissioner for Workmen''s Compensation, Madurai'' and further extended by holding that even a mere over-exertion in the course of duty by a workman which aggravated his pre-existing heart condition and resulted in his death would constitute accidental injury within the meaning of the Workmen Compensation Act. Therefore, the primal submission of Mr. Bedi that merely because there were some indications in the post-mortem report that the deceased had a weak heart and this would operate as an exclusion of liability of the Company under the policy has to be necessarily rejected.

REPELLED on his basic contention, Mr. Bedi had attempted to raise an ancillary submission rested on a hyper technical and literal reading of the conclusion in the post-mortem report. It was submitted that the final opinion was that death is due to cardiac failure as a result of left coronary arteryeclusion (Natural Death). Somewhat negatively it was contended that the medical opinion had not recorded in terms that death was due to an accidental injury.

THE submission aforesaid actually begs the very question which is at issue. A look at the post-mortem report in its totality would indicate that the chain of factual causation which had ultimately led to the cardiac failure of the deceased was not even remotely mentioned therein. Indeed it would appear that this was not even in the knowledge of the doctors who had conducted the post-mortem. THEre is no statement of facts at all therein, nor the sequence which led to the heart failure of the deceased. It is noticed at the heading of the report that this was as per police requisition in Form No. 146 (i) & (ii). Consequently, the medical opinion herein was not even remotely called upon to opine whether the Cardiac arrest of the deceased was the result of the injury suffered by him a few hours earlier or was entirely de-hors the same. It has then to be borne in mind that the post-mortem was conducted nearly 20 hours or more after the actual death of the deceased. It bears repetition that the deceased received treatment and died at St. Martha''s Hospital whilst the post-mortem was later got conducted at an altogether different Government Institution namely the Victoria Hospital day by doctors who had neither treated me deceased nor apparently had any history of the case which had led to the ultimate death. It is axiomatic that when death occurs the heart necessarily must stop function and consequently herein the core question is as to what had occasioned a cardiac failure and not the mere fact thereof. Also it has to be noticed that the opinion of natural death is also rendered in contra-distinction to where the same has occurred due to crime, homicide and suicide etc. This is not a case where the deceased had died in sleep due to cardiac failure, when it may be said that death was entirely due to natural causes. It is somewhat elementary that extreme pain and shock resulting from injury may place a heavy stress on the human heart inducing a cardiac condition resulting in its ultimate failure. In the absence of the factual background and the facts that the doctors conducting the post-mortem were never called upon to opine on the conflicting claim; the mere bald opinion that death was due to a cardiac failure in the postmortem report does not in any way advance the case of the opposite party. Indeed it seems that the whole fallacy in the argument of the opposite party is in relying on individual factors, in isolation. Herein it is the totality of the circumstances which have to be viewed for arriving at a correct conclusion. These facts as noticed are not in dispute. The deceased was a healthy young man of 39 years. There is no history or proof of any earlier ill health or heart-attack. Apparently being in prime condition he had travelled all the way from Yamunanagar to Bangalore in the course of his duty. He did not in the least exhibit any sign of ill health or a heart condition prior to the accidental injury which he suffered on the 12th of August, 1990 at 11.30 a.m. It is common ground that immediately after the violent impact against the cyclist the patella of the deceased knee was totally dislocated and the muscular tissues there under were crushed. It is elementary that this would cause an acute pain and shock and factually the case is that he fell down and could not stand even and had to be carried in a vehicle to the nearest St. Martha Hospital, whilst in grave discomfort and pain. It is the undisputed case that almost immediately on reaching the hospital he complained of an acute chest pain and congestion. Patently it was the injury which had put pressure on the deceased to bring on a heart condition. The doctor forthwith thought it necessary to take the E.C.G of his heart. It is also the case that the injury on his knee necessitated the plastering of his whole leg from the ankle to the thigh. It is well known that this orthopedic process would further inflict great pain and agony. The doctors at St. Martha Hospital were compelled to resort to heavy medication and sedatives and he was also given a bed rest. Even thereafter he had to be removed on a stretcher in an ambulance and apparently during the movement necessitated thereby his condition worsened. In a matter of minutes when he reached his hotel and before even being put in his room his breathing became heavy and congested and his Condition became so critical that he became unconscious. His companion Mr. Sudhir Mohan (witness) immediately rushed him back to the hospital, but the deceased had either died on the way or breathed his last on his arrival at the hospital forthwith. He expired at about 3.30 p.m. i.e. within 3 to 4 hours of suffering the accidental injury on his knee. The totality of circumstances when viewed as a whole lead to an inescapable conclusion that herein the cardiac failure of the deceased was the direct result of the accident and the consequential injury resulting in pain, agony and shock. There can thus be no manner of doubt that the cardiac arrest of the deceased was a direct and proximate result of the accidental injury suffered by him barely three hours earlier. The chain of causation is clear and distinct. The answer to the second part of the question posed at the out-set is rendered in these terms.

In view of the above, we cannot, but conclude that the deceased did not die a natural death, but expired as a direct consequence of the bodily injury suffered in an accident caused by external, violent and visible means. This comes squarely within the ambit of the insurance cover provided by the Group Personal Accident Policy. Any attempts to wriggle out from the liability by the Opposite Party No. 1 (The New India Assurance Company Limited) is, therefore, specious and unwarranted.

ONCE it is held as above, it is somewhat patent that insurance (including accident insurance) is expressly within the meaning of service as defined in the Act and the deceased had duly hired those services by securing the cover of policy issued by the Company. There is manifest on this record the patent and glaring deficiency in the services extended out by Opposite Party No. 1. Indeed the unwarranted delay to settle the claim and the total repudiation thereafter border clearly on negligence in law and in callousness as a matter of fact in the context of the deceased''s widowed wife and her orphan children. The complainant has thus established her claim to both the contractual reliefs provided by the policy as also for compensation for loss and injury occasioned by the negligence of the Opposite Party. Coming now to the actual brass-tacks of the relief, it is first not in dispute that the insurance cover provided for the death of the deceased is Rs. 65,000/-. The denial of the same for the period commencing from the 12th of September, 1990 (i.e. one month after the accident within which the claim could well have been settled) till now would clearly entitle the complainant to the payment of the commercial interest thereon at 18%. In the peculiar context of the widowed complainant and her children denuded of her husband''s financial support occasioned by a sudden and tragic death the mental shock; injury and loss in withholding her dues is assessed at a modest figure of Rs. 10,000/- only.

IN view of the above, the present complaint is allowed with costs which are computed at Rs. 1,000/- only. The Opposite Party No. 1 is hereby directed to pay to the complainant: (i) the sum of Rs. 65,000/- being the insured amount; (ii) interest @ 18% thereon from the 13th of September, 1990 till the date of this order. (iii) Compensation for loss and injury suffered and computed at Rs. 10.000A. (iv) Cost of Rs. 1,000/-only.

The Opposite Party No. 1 is further directed to comply with the aforesaid order within one month from today failing which they would render themselves liable to stringent penalty under Section 27 of the Act. Complaint allowed.