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Oriental Insurance Co. Ltd. Through Its Duly Constituted Attorney, Oriental Insurance Co. Ltd., New Delhi v/s Vikash Kumar


Company & Directors' Information:- THE ORIENTAL INSURANCE COMPANY LIMITED [Active] CIN = U66010DL1947GOI007158

Company & Directors' Information:- THE NEW INSURANCE LIMITED [Strike Off] CIN = U66010UP1933PLC000509

Company & Directors' Information:- THE ORIENTAL COMPANY LIMITED [Active] CIN = U67120WB1935PLC094079

Company & Directors' Information:- ORIENTAL COMPANY LIMITED [Not available for efiling] CIN = U70101RJ1935ULL000047

Company & Directors' Information:- ORIENTAL INDIA LTD [Strike Off] CIN = U51226WB1983PLC036505

Company & Directors' Information:- B L AND CO NEW DELHI PRIVATE LIMITED [Active] CIN = U74899DL1968PTC004910

Company & Directors' Information:- ORIENTAL CORPN PVT LTD [Active] CIN = U51909GJ1937PTC000133

Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

Company & Directors' Information:- INSURANCE OF INDIA LTD [Strike Off] CIN = U67200WB1936PLC008634

Company & Directors' Information:- ORIENTAL CORPORATION LIMITED [Not available for efiling] CIN = U99999MH1937PTC002741

Company & Directors' Information:- KUMAR INSURANCE COMPANY LIMITED [Dissolved] CIN = U99999MH1943PTC004030

    Revision Petition No. 675 of 2015

    Decided On, 27 July 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Petitioner: Abhishek Kumar Gola, Advocate. For the Respondent: Sanjeev Kumar Verma, Advocate.



Judgment Text


Oral:

Late Smt. Kaushalya Devi was insured under Janata Personal Accident Policy issued by the petitioner company for the period from 04.12.1997 to 08.12.2002. She fell down from the stairs of the roof of her house on 18.12.1999. Initially she was treated in Primary Health Care, followed by her treatment at S.K.M.C.H. Muzaffarpur. A certificate of disability was issued to her by her treating Doctors being Dr. Rajeshwar Prasad Singh and Dr. Mani Bhushan Sharma. The case of the complainant is that she continued to be on the bed and ultimately succumbed to the accidental injury on 03.2.2005. A claim was lodged with the petitioner company for payment of the accidental benefits available under policy. The petitioner company appointed one investigator Mr. Syed Akhtar Hussain, who submitted a report to the insurer, recommending that the claim was not acceptable for the reasons recorded in the report.

2. Based upon the report of the investigator, the claim was repudiated by the insurer vide letter dated 29.3.2001, which reads as under:

“In connection with the above, we regret to inform you that on the basis of investigation report as well as papers produced by you it is found that your above noted claim is out of preview of the police. Hence company has no liability and your claim stands repudiated.”

It would be pertinent to note here that initially the claim was lodged for payment of the benefits available in case of the accidental injury and the deceased injured died more than three years after the claim had been repudiated.

3. The complainant thereafter approached the Hon’ble High Court of Patna by way of a Writ Petition. The High Court having noticed the repudiation of the claim, felt that the proper Forum would be Consumer Forum or any other remedy that may be advised to the petitioner. It was however, noticed by the High Court that no communication had been sent by Registered Post at the registered address of the petitioner. The complainant thereafter approached the concerned District Forum by way of a consumer complaint.

The complaint was resisted by the petitioner company, which took a preliminary objection that the complaint was barred by limitation. Issuance of the policy however, was admitted. It was further stated in the written version that the claim was rightly rejected on the basis of the report of the investigator.

4. The District Forum having dismissed the consumer complaint, the respondent / complainant approached the concerned State Commission by way of an appeal.

5. Vide impugned order dated 17.12.2014, the State Commission allowed the appeal and directed the petitioner company to pay a sum of Rs.5,00,000/- to the complainant with 8% interest from the date of institution of the complaint.

6. The first question which arises for consideration in this case is as to whether the deceased had died only on account of injury sustained by her in the accidental fall on 18.12.1999. The complainant has filed several documents to prove the injuries suffered by the deceased on account of all from the stairs but has not filed any medical certificate, disclosing therein the cause of her death. Even if the deceased had suffered serious injuries and had become permanently disabled during the fall on 18.12.1999, the possibility of she having died on account of some other reason cannot be ruled out. This is more so when the death happened more than five years after the injuries were suffered by her. The primary onus was upon the complainant to prove that the deceased had died solely on account of accidental injuries suffered by her on 18.12.1999. The complainant has not been able to prove such a case.

7. However, the insurance policy under which the deceased was covered was not confined to a case of death and also covered injuries if those injuries had resulted in her permanent total disablement. Therefore, if the amount payable in case of death on account of accidental injuries was not payable, the amount which was payable in case of permanent total disablement due to accidental injuries would be payable to her. If the amount payable in case of death and the amount payable in case of permanent total disablement were one and the same, the complainant would be entitled to that amount if a case of permanent total disablement is made out. If a lesser amount was payable in case of permanent total disablement as compared to the amount payable in case of death, it is the lesser amount which would be payable to the complainant.

8. The learned counsel for the complainant / respondent has drawn my attention to a certificate issued by the Deputy Superintendent of Sadar Hospital, Muzzafarpur and countersigned by the Superintendent of the said hospital, Sadar Hospital, Muzzafarpur is a Government Hospital. The certificate to the extent it is relevant reads as under:

“As per prescription made by MO Sadar Hospital Muzzafarpur, there is fracture of 1st lumber bone leading to disability in both the legs and so unable to perform her routine work. As per prescription by eye surgeon there is secondary absolute Glaucoma in right eye.”

9. The learned counsel for the complainant has also drawn my attention to another certificate purporting to be issued by the Medical Superintendent of Sadar Hospital and counter signed by Medical Superintendent, which reads as under:

“This is to certify that Kaushalya Devi aged about 61 years wife of Late Jagdambi Singh Vill. Gokkula, P.S. Paroo District Muzaffarpur. History of pain in Lumber bone one #. Due to failed from roofs stair leading fracture of spine reslbiers in preraparesis of back lower limb tremor of both hands and she is blind with both eyes (P.T.G.O.) patient is permanently totally and absolutely disable. (emphasis supplied).

So she is dependent she is advised to have completed rest on hard bed.”

10. It is evident from the above referred tow certificates issued by the Doctors of Sadar Hospital that the deceased had suffered permanent total disablement on account of the injuries suffered by her due to accidental fall on 18.12.1999 . There is no medical evidence produced by the petitioner company to refute the medical record produced by the complainant and therefore, there is no reason to disbelieve the certificate issued by the Doctors of a Government hospital. This is more so, considering that the complainant comes from a poor strata of the society the deceased being an insured under the Janata Personal Accident Policy. Therefore, the complainant is entitled to pa

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yment of such amount as was payable in case of permanent and total disablement. 11. For the reasons stated hereinabove, the revision petition is disposed of with the following directions: (i) The petitioner company shall pay such amount to the complainant as was payable under the Janata Personal Accident Policy issued to the deceased, in a case of the total permanent disablement. (ii) The petitioner shall also pay simple interest @ 8% per annum on the principal amount payable to the complainant in terms of this order with effect from the date of institution of the complaint till the date of payment. (iii) The payment in terms of this order shall be made within three months from today.
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