REVISION PETITION NO. 1922 of 2004

(From the order dated 22.6.2004 in MP No.38/04 arising from order dated 10.9.2003 passed in Appeal No.1072/03, of the State Commission, Chhatisgarh)

Deepak Jaiswal,

S/o of late Shri Murlidhar Jaiswal,

Village Bhapholi, P.S. Dhaurpur,

Distt. Surguja (C.G.) … Petitioner

Vs.

The Oriengal Insurance Co.

Sadar Road, Near State Bank of India

Ambikapur, Chhatisgarh … Respondent

BEFORE :

HON’BLE MR. JUSTICE M.B.SHAH, PRESIDENT.

DR. P.D. SHENOY, MEMBER.

For the Petitioner : Ms.Astha Tyagi, Advocate –

Amicus Curiae

For the Respondents : Mr. D.N. Ray, Advocate

DATE : 12^th DECEMBER, 2005

O R D E R

M.B.Shah, J., President.

Petitioner filed Complaint No. 169 of 2001 before the District Forum, Ambikapur, contending that the Respondent M/s.Oriental Insurance Company had unjustifiably repudiated the claim arising under the Janta Personal Accident Policy for a sum of Rs.1 lakh which was taken by his father, late Murlidhar Jaiswal. By the order dated 6.2.2003 the complaint was dismissed by accepting the contention raised by the Insurance Company that death was due to hypertension which resulted in brain haemorrhage.

Against that order, the Petitioner preferred Appeal No. 38 of 2004 before the State Commission, Chhattisgarh. That appeal was dismissed in default. The application for restoration was also dismissed. Hence, the Petitioner has preferred this revision application.

Firstly, we would state that the State Commission erroneously dismissed the appeal on the ground of absence of the appellant. Normally, in such cases, even in the absence of appellant, the State Commission ought to have decided the appeal on merits. It is to be remembered that proceedings before the Consumer Fora are inquisitorial and not adversary. The orders are required to be passed in accordance with justice and equity on the basis of the evidence available on record. The Act is for the protection of the consumers and matters are required to be decided by having rationale approach and not technical one. This is made clear in Indian Photographic Co. Ltd. Vs. H.D.Shourie, (1999) 6 SCC 428 wherein the Apex Court observed:

“4. The Consumer Protection Act, 1986 has been enacted to provide for better protection of the interests of the consumers by making provisions for the establishment of consumer councils, other authorities for the settlement of consumer disputes and for matters connected therewith. The Act was enacted as a result of widespread consumer protection movement. On the basis of the report of the Secretary General on Consumer Protection dated 27-5-1983, the United Nations Economic and Social Council recommended that the world Governments should develop, strengthen and implement a coherent consumer protection policy taking into consideration the guidelines set out therein. Each Government was obliged to set its own priorities for the protection of consumers in accordance with the economic and social conditions of the country keeping in view the needs of its people and bearing in mind the costs and benefit of the proposed legislation. The Governments were to further provide adequate infrastructure including the bodies as well as financial facilities to develop, implement and monitor consumer protection policies. The introduction of new products in the developing countries was to be assessed in relation to the local conditions having regard to the existing production, distribution and consumption patterns of the country or region concerned. The various enactments such as the Contract Act, the Standards of Weights and Measures Act, the Motor Vehicles Act, the Monopolies and Restrictive Trade Practices Act, the Food Adulteration Act etc. were found to be inadequate in providing the relief to the consumers. In discharge of the international obligations and to protect the interest of the consumer in the country, the Consumer Protection Act, 1986 was enacted (hereinafter called “the 1986 Act”). With reference to the consumer movement and the international obligations for protection of the rights of the consumer, provision has been made herein with the object of interpreting the relevant law in a rational manner and for achieving the objective set forth in the Act. A rational approach and not a technical approach is the mandate of law”.

Therefore, in our view, the State Commission, in such cases, ought to have decided the appeal on merits even in the absence of the Complainant. That would have been a rationale and non-technical approach which is the mandate of law.

Complainant was not in a position to engage an Advocate. We have appointed Amicus Curiae and heard learned Advocates for the parties. Fortunately, in this revision application, Insurance Company has filed exhaustive reply along with the copy of the policy, CT Scan Report, copy of the claim form and the report submitted by the investigators who were appointed by it.

From the said reply it is apparent that the repudiation of the claim made by the Petitioner is totally unjusfified. Undisputedly, the deceased had taken a Janata Personal Accident Policy for a sum of Rs.1 lakh for the period 15.1.1999 to 14.1.2011. On 29.12.1999 the deceased fell down from the staircase and was brought to the District Hospital, Ambikapur. He was referred to Modern Medical Institution, Raipur for further treatment. A copy of the CT-scan brain (plain) report was produced by the Insurance Company to contend that the death was not due to injury caused but was because of the hypertension. In our view, this submission is totally baseless.

In the CT Scan report of the brain (plain) (as produced by the insurance company on record) it is stated as under:

“Serial axial sections of brain were studied from base of skull to vertex without giving intravenous contrast.

The CT study shows large intra cerebral haematoma in left putamen (5.5 x 7.3 x 3.6 cm.) causing compression and ipsilateral ventricle with subfalcine herniation towards right side. There is evidence of blood seen in basal cisterns. The left vertebrobasilar system appear dolichoectatic.

As per the report of the Consultant Radiologist, in conclusion, his impression is as under:

Impression: CT study shows intra cerebral haematoma in left putamen causing subfalcine herniation towards right side with sub-arachnoid haemorrhage and dolichoectasia of left verterbro-basilar system”.

From the aforesaid report it is apparent that the deceased was having head injury. Thereafter he got himself discharged from the hospital on 7.1.2000 and expired on 8.1.2000.

It is the contention of the Insurance Company that one Mr.H.N.Tiwari was appointed to conduct preliminary inquiry. Thereafter, Maj. R.K.Tiwari (Retd.) was appointed for final investigation, who reported that the insured, Murlidhar Jaiswal, was suffering from hyper-tension. He became unconscious on 29.12.1999 and was brought to the District Hospital, Ambikapur where he was treated for hypertension and referred to Raipur for investigation and management. Thereafter, he concluded that from the circumstantial evidence it appeared to him that the patient was suffering from hyper-tension and that was the main cause of the deceased falling down while going to bathroom which resulted in further complications and injury. Therefore, hypertension was the cause. The claim made by the Petitioner was, therefore, rejected on the ground that death of the insured was due to massive haemorrhage on account of hypertension.

In our view, undisputedly, the deceased fell down while going to bathroom and from this it cannot be presumed that he fell down because he was suffering from hypertension. A fall can be for various reasons such as slippery surface or missing of a step from the stair. Therefore, it would be difficult to draw an inference that the fall of the insured must be because of hypertension. Further, there is nothing on record to establish that the deceased was having hypertension and that it was known to him before taking the policy. Hence, it can be held that insurance company has failed to establish that the assured fell down because of hypertension.

Further, the brain scan reports specifically mentions that the study reveals that large intra cerebral haematoma in left putamen (5.5 x 7.3 x 3.6 cm.) causing compression and ipsilateral ventricle with subfalcine herniation towards right side. This means that death was due to accidental fall which resulted in the head injury which caused cerebral haematoma which caused the death. It is undisputed that as soon as the deceased fall down while going to the bath room he was taken to the hospital. Treatment was given at the District Hospital, Ambikapur. From there he was referred to Modern Medical Institute for further treatment. Thereafter, he died on 8^th January, 2000.

In support of his claim, the Petitioner has also produced a copy of the death report in which the cause of the death was mentioned as due to head injury because of accidental fall from the stairs. Panchnama was also produced on record in which it was stated that while going to bathroom on 29.12.1997 at 7.00 am. the assured slipped from the stairs and became unconscious. In this view of the matter, the stand taken by the Insurance Company was unjustifiable.

In the result, the Revision Petition is allowed. The Insurance Company is directed to pay Rs.1 lakh with interest at the rate of 10% p.a. from 8^th April, 2001 (i.e. after three months after the date of death of the insured) till its payment. The Insurance Company shall pay Rs.5000/- as cost to the Petitioner.

Sd/-

………………………...J.

(M.B.SHAH)

PRESIDENT

Sd/-

…………………………..

(P.D.SHENOY)