UNITED INDIA INSURANCE CO. LTD. vs P.M.Nagesh Nayak

THIS revision is directed against the order of the Karnataka State Consumer Disputes Redressal Commission, Bangalore (hereinafter referred to as "the State Commission") dated 20.3.2009 in appeal No. 2457/2008 whereby the State Commission dismissed the appeal of the petitioner -Insurance Company against the order of the District Forum, Shimoga dated 9th September, 2008 whereby it was directed thus: The complaint filed by the complainant against the opponents is allowed.

The opponents 1 and 2 are hereby directed to discharge the loan accounts of Smt. Jayanthi Bai due, as on the date of filing of this complaint i.e. Rs. 3,40,514 in Account No. HL 6294 and HL 11415 Rs. 1,66,870 of 3rd opponent Bank together with interest at 11% p.a. from the date of filing of this complaint, till realization or till discharging of entire loan taken by Jayanthi Bai.

The opponents 1 and 2 are hereby directed to pay a sum of Rs. 5,000 for deficiency of service and mental agony and Rs. 2,000 towards litigation expenses to the complainant.

Further, the 3rd opponent is hereby directed to refund the excess amount to the complainant, after adjusting the amount paid by opponents 1 and 2 to the loan accounts of deceased Jayanthi Bai.

Further, the opponents are hereby directed to comply with this order, within 30 days from the date of commencement of this order.

Briefly put, the facts relevant for the disposal of this revision petition are that Jayanthi Bai, wife of the complainant/respondent No. 1, obtained a UNI Home Care policy from the petitioner valid w.e.f. 29th August, 2006. The policy covered the risk of accidental death. Jayanthi Bai, as per the allegations in the complaint is stated to have died due to accidental fall from staircase on 25th February, 2007. Respondent No. 1 being husband of the deceased submitted the insurance claim, which was repudiated by the petitioner insurer on the ground that the death of Jayanthi Bai was not accidental. This led to filing of the consumer complaint which is resisted by the petitioner.

LEARNED District Forum on consideration of pleadings of the parties and the evidence adduced came to the conclusion that the death of Jayanthi Bai occurred because of head injury suffered due to accidental fall and as such the petitioner has committed deficiency in service by repudiating the claim. The District Forum therefore allowed the complaint with the above directions. The petitioner being aggrieved of the order of the District Forum preferred an appeal before the State Commission. State Commission agreeing with the finding of the District Forum dismissed the appeal and affirmed the order of the District Forum. It is against the said order the petitioner has come in revision.

LEARNED Counsel for the petitioner has assailed the impugned orders of the Fora below alleging that the orders of the Fora below are based on incorrect appreciation of facts and law. Learned Counsel has contended that in order to succeed in his claim respondent No. 1 was supposed to establish that Jayanthi Bai died because of the accidental injuries due to fall whereas the record would show that cause of death of Jayanthi Bai was not the head injury but heart problem. In support of this contention learned Counsel for the petitioner has drawn our attention to the LIC claims filed by the petitioner in respect of his wife Jayanthi Bai. Said LIC claims are in respect of insurance claim No. 623791382 for Rs. 20,000 and 622715947 for Rs. 50,000. In the claim statement the immediate cause of death of Jayanthi Bai is declared as "heart pain" by respondent No. 1. Similarly in the certificate of identity and burial or cremation, cause of death is shown as "heart pain". Learned Counsel for the petitioner states that from the aforesaid it is clear that the wife of respondent No. 1 has died because of heart problem, and not due to the accidental death. Thus, he has urged us to set aside the impugned orders which are against the facts.

LEARNED Counsel for respondent No. 1 on the contrary has argued in support of the impugned order. He has contended that the Fora below have rightly concluded that Jayanthi Bai (insured) died because of the accidental injury. In support of this contention he has drawn our attention to copy of certificate issued by Dr. M.B. Ravi wherein he has certified that on 25.2.2007 at about 12.55 in the afternoon he examined Jayanthi Bai for severe head injury i.e. Cerebral Concussion and advised them to admit her in Subaiah Hospital, Shimoga for further treatment. We have considered rival contentions. The short question which requires consideration in this case is whether the insured Jayanthi Bai died because of accidental injury or she died a natural death because of heart problem?

THOUGH this is a case of unnatural death, post -mortem of the insured was not conducted. In absence of the post -mortem report which could have determined the cause of death, we have no option but to revert to the evidence produced on record to find out answer to the above question.

ADMITTEDLY , Jayanthi Bai had also two life insurance policies. Petitioner has placed on record copies of the claim statement, certificate of identity and burial or cremation and requisition letter for claim forms for consideration of death claims submitted to LIC. In all three documents respondent No. 1 -claimant has stated that Jayanthi Bai died on 25.2.2007 at 1.15 p.m. and he has disclosed the immediate cause of death as "heart pain". If we go by this information, the cause of death of Jayanthi Bai obviously is the heart problem and not the accident as claimed by respondent No. 1. Respondent No. 1 is relying upon the certificate issued by Dr. B.M. Ravi which reads thus: This is to certify that Smt. D. Jayanthi Bai, Aged 44 yrs. W/o. Nagesh Nayak P.M. is known to me since 17 yrs. and I examined her on 25.2.2007 at 12.55 afternoon for severe head -injuries i.e. Cerebral Concussion and I advised them to admit to Subaiah Hospital, Shimoga for further treatment.

IF the facts narrated in the certificate are correct, then Dr. M.B. Ravi examined the insured on 25.2.2007 at 12.55 p.m. for Cerebral Concussion and he advised the patient Jayanthi Bai to be shifted to Subaiah Hospital for further treatment. This version in the certificate is in conflict with the averment of respondent No. 1 in his affidavit filed before the District Forum. Relevant portion of the averment made in the affidavit is reproduced thus: I submit that, about the accidental death I would like to state that on 25.2.2007 at about 12.45 p.m. when Smt. Jayanthi Bai was alighting from steps of Ist floor at the office of her employment, due to slip of her step she fell rolling down through the steps. Because of this fall, she got injured seriously over her head, nose and other injuries over her body. Bleeding was found in her nose and ears. As she was found unconscious, immediate arrangements were made to call a doctor who attended the supposed injured person at 12.55 p.m. at the spot. Even though, the doctor who attended at the spot said about the death of the injured. I along with other colleagues of the deceased with a fond hope that she may be rescued or any other thing is possible taken the injured to Subaiah Hospital, Shimoga but in vain.

ON reading of the above, it is clear that as per respondent No. 1 Dr. M.B. Ravi who attended to the insured at the spot declared her dead. This version of respondent No. 1 is in conflict with the certificate given by Dr. B.M. Ravi wherein he has certified that after examining the insured he advised her to be taken to Subaiah Hospital, Shimoga for further treatment. The aforesaid certificate does not even have the date. In view of the aforesaid contradictions in the medical certificate relied upon by respondent No. 1 and the evidence of respondent No. 1 as also the information given in the claim form etc. submitted to LIC, we are not inclined to accept the version of respondent No. 1 that the insured died because of accidental head injury. It is well settled principle of appreciation of evidence that the person may lie but circumstances do not. Mere fact that in the LIC claim form respondent No. 1 has declared the cause of death as heart pain is clear indication that the story regarding the death of the insured due to accidental head injury is concocted on an afterthought. Our conclusion is further fortified by the fact that respondent No. 1 has failed to produce any record from Subaiah Hospital to show that she was brought with the history of head injury due to fall and was declared brought dead. Both the Fora below have failed to take note of the above said important factual aspect of the matter. Therefore the impugned orders of the fora below, based on incorrect appreciation of fact, cannot be sustained. In view of the above, we allow the revision petition, set aside the orders of the fora below and dismiss the complaint.