APPEAL NO: 1438/2008


Br.Manager, National Insurance Co.Ltd.,

Khed Road, Balotara, Distt. Barmer


through

Manager (legal) Regional Office,

Jaipur.


Opposite parties-appellants


Vs.


Sh.Gaina Ram

r/o Dhorimanna, Teh. Guda Malani,

Distt. Barmer.


Complainant- respondent


23.4.09


Before:


Mr.Justice Sunil Kumar Garg-President

Mrs.Vimla Sethia-Member


Mr.Ramkalyan Sharma counsel for the appellants

Mr. Kailash Trivedi counsel for the respondent


This appeal has been filed by the appellants Insurance Co. against order dated 10.6.08 passed by the District Forum, Barmer in complaint no. 51/2007 by which the complaint of the complainant respondent was allowed in the manner that the

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appellants were directed to pay a sum of Rs. 1 lac , the amount of the accidental insurance policy alongwith interest @ 9% p.a. w.e.f. 14.2.07 and further to pay a sum of Rs.5000/- as compensation for mental agony and Rs. 1000/- as costs.


2. It arises in the following circumstances-


That the complainant respondent had filed a complaint against the appellants before the District Forum, Barmer on 14.2.07 inter alia stating that the mother of the complainant Smt. Noji was also covered under a Janta Personal Accident Insurance Scheme bearing no. 9402003 which was for the benefit of sheep-keepers and as per terms of the policy if one person dies in an accident, who is member of the policy, his/her dependents would be entitled to get Rs. 1 lac. It was further stated in the complaint that Smt. Noji had slipped in the bathroom on 25.2.06 and thereafter she had died and after the death of the deceased the complainant respondent being the son and nominee of the deceased had preferred the claim before the office of the appellants on 23.3.06 but the appellants through letter dated 4.5.06 had demanded some papers which were sent by the complainant to the appellants but thereafter claim of the complainant respondent was repudiated by the appellants through letter dated 10.11.06 on the ground that the relevant papers were not sent by the complainants and further as per investigation report it was found that no FIR was lodged and no postmortem of the dead body of the deceased was done and as per the statement of the witnesses, it was found that the deceased had died due to illness and not in an accident. It was further stated in the

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complaint that repudiation of claim of the complainant by the appellants was not justified at all as the deceased had died in an accident because of fall in the bathroom and after receiving head injury. Thus, the present complaint was filed by the complainant.


A reply was filed by the appellants on 25.6.07 and in the reply they have taken the same pleas which were taken by them in the repudiation letter dated 10.11.06 and it was prayed that claim was rightly repudiated by the appellants and complaint be dismissed.


After hearing the parties, the District Forum,Barmer through impugned order dated 10.6.08 had allowed the complaint of the complainant inter alia holding -


(i) That since the complainant respondent had filed a certificate of the Dr.Hanumanram Chaudhary dated 25.2.06 in which he had stated that the deceased was having head injury and that was due to fall in toilet at 8.20 a.m. and the doctor had prescribed medicines and since the deceased had died on the same day, therefore, no further steps were taken by the complainant respondent. Thus, the death of the deceased was treated as accidental death and it was also mentioned on the back of the prescription slip that no police case or postmortem of the body of the deceased would be done .


(ii) That the appellants were not justified in repudiating the claim of the complainant respondent and it had

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amounted to deficiency in service on the part of the appellants.


Aggrieved from that order dated 10.6.08 passed by the District Forum, Barmer , this appeal has been filed by the appellants.


3. In this appeal the following contentions have been raised by the learned counsel for the appellants -


(i) That the death of the deceased was natural one as the certificate of Dr. Hanumanram Chaudhary dated 25.2.06 does not bear the despatch number and further such type of certificate could be obtained later on. Therefore, no reliance should have been placed by the District Forum on that certificate and if that certificate is excluded from the perview of evidence, therefore, there remains nothing on record to prove the fact that the death of the deceased was accidental one.


(ii) That since no postmortem of the dead body of the deceased was conducted and since no report was lodged with the police, therefore, in absence of that the death of the deceased could not be treated as accidental one and thus on that ground the claim of the complainant respondent was rightly repudiated by the appellants through letter dated 10.11.06 and the District Forum had committed serious error and illegality in decreeing the claim of the complainant respondent. Hence the impugned order could not be

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sustained and liable to be quashed and set aside and this appeal deserves to be allowed.


4. On the other hand, the learned counsel appearing for the respondent has supported the impugned order of the District Forum .


5. We have heard the learned counsel for the appellants as well as for the respondent and gone through the entire materials available on record.


6. There is no dispute on the point that the deceased was a member of the Janta Personal Accident Insurance Scheme bearing policy no. 9402003 of the appellants Insurance Company.


7. There is also no dispute on the point that as per terms of the policy if one person dies in an accident, who is member of the policy, his/her dependents would be entitled to get Rs. 1 lac.


8. There is no dispute on the point that the deceased had died on 25.2.06.


9. Thus, in the facts and circumstances just narrated above, the

question for consideration is whether the findings recorded by the

District Forum could be sustained or not and whether the repudiation of the claim of the complainant respondent by the appellants was justified or not or whether death of the deceased could be treated as accidental death or not.


10. On file there is a certificate dated 25.2.06 issued by Dr. Hanumanram Chaudhary, MD (Medicine ) who was incharge of

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the Govt. Health Centre Dhorimanna in which it was specifically mentioned that the deceased was having head injury and that was due to fall in the toilet.


11. In our considered opinion, looking to the fact that the District Forum while passing the impugned order has placed reliance on the certificate of Dr. Hanumanram dated 25.2.06, and a bare perusal of the certificate reveals that the deceased had received head injury due to fall in the toilet, therefore, we see no reason to differ with the findings recorded by the District Forum on the point that the certiicate of Dr. Hanumanram dated 25.2.06 could not be said to be forged one and from that certificate the fact stand proved that the deceased had slipped in the bathroom on 25.2.06 and thereafter he had received head injury and later on he had died.


12. It may be stated here that when no other evidence has been produced by the appellants Insurance Co. to rebutt the evidence of Dr. Chaudhary and thus the argument of the learned counsel for the appellant that the certificate of the doctor was false one could not be appreciated .


13. In this case the next question for consideration is whether the death which had taken place due to fall in the toilet and after receiving head injury would amount to accidental death or not.


14. Before analysing the points raised in the present appeal something should be said about the word ' accident'.


15. The word " accident" is constantly used in ordinary English and therefore, in law, in two senses, one much wider than the

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other. Strictly an occurrence only be said to be accidental when it is due neither to design nor to negligence. For, if an act be intentional it is clearly no accident; if it be result of culpable negligence, then by due care it could have been avoided and the negligent person could not be allowed to excuse himself by declaring it an accident. In this narrower sense of the word, an accident must be " nobody's fault ".


16. The word " accident " generally denotes an event that takes place without one's foresight or expectation ; an event which proceeds from an unknown cause, or is an unusual effect of a known cause and therefore, not expected; chance, causality, contingency ; an event happening without the occurrence of the will of the person by whose agency it was caused.


17. The word " accident" is derived from the Latin verb " accidere " signifying " fall upon, befall, happen, chance ". In an etymological sense anything that happens may be said to be an accident and in this sense, the word has been defined as befalling a chance; a happening; an accident; an occurrence or event.


18. The ordinary meaning of the word "accident " is an unintended occurrence which had an adverse physical result.


19. The expression "accident " has been defined as an unlooked for mishap, an untoward event which is not expected or designed. It is used in the popular and ordinary sense and mens a mishap or an untoward event not expected or designed.


20. An accident is not the same as an occurrence but something that happens out of normal or ordinary course of things.

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21. Keeping the above aspect in mind, the facts of the present case are being examined.


22. It may be stated here that since in the present case the deceased had slipped in the bathroom on 25.2.06 and as a result of that he had received head injury and had died, therefore, that death would be treated as mishap or untoward event not expected or designed. Furthermore, the slipping of deceased in the bathroom was certainly unintended occurrence, which had an adverse physical result and thus death of the deceased was accidental one.


23. Moreover, an accidental injury means an injury resulting from external violent and unanticipated cause; especially a bodily injury caused by some external force or agency operating contrary to a person's intentions, unexpectedly and not according to the usual order of events. In this case this has happened.


24. Thus, for the reasons stated above, it is held that the death of the deceased was accidental one as the event which happened and occurred in the present cse ws merely be chance and was covered by the word ' accident ' and the learned District Forum has rightly observed so.



Non-production of documents i.e. FIR and postmortem report



25. No doubt in this case, FIR and postmortem report were not produced, but non-furnishing of FIR and postmortem report would not mean that no accident had taken place. Furthermore, since deceased had died because of receiving head injury due to slipping

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in the bathroom, therefore, there was no necessity of lodging any FIR and getting the postmortem examination done as there was no crime or offence committed by any one under the provisions of Indian Penal Code or any other enactment.


26. Therefore, if the documents ( FIR and postmortem report ) were not furnished and produced by the complainant respondent, it cannot be said that the claim of the complainant respondent was false one.


27. In view of the discussion made above, it is held that the appellants were not justified in repudiating the claim of the respondent complainant and it amounted to deficiency in service on the part of the appellants and the District Forum has rightly observed so. The findings and conclusions of the District Forum decreeing the claim of the complainant are liable to be confirmed as they are based on correct appreciation of entire materials and evidence on record and they do not suffer from any basic infirmity,illegality or perversity. Hence, no interference is called for with the same and this appeal deserves to be dismissed.


Accordingly, the appeal filed by the appellants is dismissed.



Member President