Partly allowed

The SBI General Insurance Company Limited v. Insurance Ombudsman

Karnataka HC21 Nov 2022WP/1628/2019

Case brief

AI extract

What is this about?

High Court quashed insurer's objection to Insurance Ombudsman award in personal accident case where insured died of cardiac arrest during hospital treatment for accident injuries. Ordered insurer to pay compensation with interest.

What did the court decide?

Mandamus to insurer to comply with Ombudsman award within four weeks with additional 6% interest on delayed payment.

The SBI General Insurance Company Limited Vs Insurance… — Consumer Protection | Karnataka HC (2022)

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WP No. 10803 of 2020 C/W WP No. 1628 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 10803 OF 2020 (GM-RES)

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C/W

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WRIT PETITION NO. 1628 OF 2019 (GM-RES) IN W.P.No.10803/2020

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BETWEEN:

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SMT.RITHA TRIPATHI, AGED ABOUT 50 YEARS, W/O LATE CHANDRA BUSHAN, R/A NO.232, 7^TH CROSS, ASHWATH NAGAR, BENGALURU NORTH, MARATHAHALLI COLONY, BENGALURU - 560 037.

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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(BY SRI.NAGARAJA REDDY D., ADVOCATE)

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…PETITIONER

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AND:

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SBI GENERAL INSURANCE COMPANY LTD., ’NATARAJ’, 101, 201, 301, JUNCTION OF WESTERN EXPRESS HIGHWAY AND ANDHERI - KURLA ROAD, ANDHERI (EAST), MUMBAI - 400 069. REPRESENTED BY ITS VICE PRESIDENT.

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WP No. 10803 of 2020 C/W WP No. 1628 of 2019

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THE INSURANCE OMBUDSMAN, STATE OF KARNATAKA, NO.19/19, JEEVAN SOUDHA BUILDING, GROUND FLOOR, 24^TH MAIN, JP NAGAR I PHASE, BANGALORE - 560 078.

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…RESPONDENTS

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(BY SRI.NAMAN J.,ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRYING TO DIRECT THE R-1 TO COMPLY/SATISFY THE AWARD PASSED BY THE R-2 DATED 10.8.2018 WITH INTEREST AS PER ANNEXURE - A.

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IN W.P.No.1628/2019

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BETWEEN:

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THE SBI GENERAL INSURANCE COMPANY LIMITED, 101, 201, 301, ACOCNATRAJE, JUNCTION OF WESTERN EXPRESS HIGHWAY, ANDHERI KURLA ROAD, ANDHERI (EAST), MUMBAI - 400 069. REPRESENTED BY AUTHORISED REPRESENTATIVE (SPP), MR.AKASH JHA.

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…PETITIONER

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(BY SRI.NAMAN J., ADVOCATE)

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AND:

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INSURANCE OMBUDSMAN,

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WP No. 10803 of 2020 C/W WP No. 1628 of 2019

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JEEVAN SOUDHA BUILDING, PID NO.57-27-N-19, GROUND FLOOR,19/19, 24^TH MAIN ROAD, JP NAGAR, I PHASE, BENGALURU - 560 078.

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MRS.RITHA TRIPATHI, NO.28/B, 3^RD CROSS, RAMANJAPPA LAYOUT, NEAR SAIBABA TEMPLE, AKASHNAGAR, BENGALURU – 560 016.

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…RESPONDENTS

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(BY SRI.NAGARAJ REDDY D., ADVOCATE FOR R2)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRYING TO QUASH THE AWARD DATED 10.08.2018 VIDE ANNEXURE – A PASSED BY THE R-1 AND ETC.,

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THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Both these petitions call in question an order dated 10.08.2018, passed by respondent No.2 – Insurance Ombudsman for the State of Karnataka.

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Writ Petition No.10803 of 2020 is filed by the claimant seeking a direction by issuance of a writ in the nature of mandamus to the 1^st respondent/SBI General Insurance

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Company Limited ('the insurance' for short) to comply with the order dated 10.08.2018 and pay compensation as determined in terms of the order.

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The companion petition in W.P.No.1628 of 2019 is preferred by the respondent-SBI General Insurance Company Limited calling in question the legality and correctness of the order passed by the Insurance Ombudsman dated 10.08.2018. It is therefore, these petitions are taken up together and considered by this common order.

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For the sake of convenience, the parties would be referred to as the claimant and the Insurance Company.

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Heard Sri. Nagaraja Reddy D, learned counsel representing the claimant and Sri.Naman J, learned counsel for the Insurance Company.

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Shorn of unnecessary details, facts in brief, as borne out from the respective pleadings, are as follows:

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WP No. 10803 of 2020 C/W WP No. 1628 of 2019

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The claimant is the wife of one Sri. Chandra Bhusan Tripathi who was insured with the Insurance company with Group Personal Accident Policy, which was valid upto 27.09.2017. On 07.12.2016 the husband of the claimant meets with a road accident and after a preliminary treatment gets admitted to St.John's Hospital, Bengaluru on 10.12.2016. In the course of the treatment the husband of the claimant undergoes a cervical discectomy procedure. After undergoing the procedure, the records reveal that he had become stable, but had not been discharged from the hospital, as the procedure that he underwent required prolonged stay in the hospital.

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During the course of the treatment, the husband of the claimant succumbed to the injuries on 24.12.2016. Thus, died while undergoing treatment for the procedure that he had undergone due to the road accident. On the death of the husband of the claimant, the petitioner sought payment of compensation from the hands of the Insurance Company in terms of the policy that was in subsistence as on the date of

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WP No. 10803 of 2020 C/W WP No. 1628 of 2019

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the death. The Insurance Company repudiates the claim on the score that the husband of the claimant had died due to heart attack and not due to the injuries sustained in the road accident and therefore, no compensation can be awarded to the claimant.

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This order comes to be challenged by the claimant before the insurance ombudsman. The insurance ombudsman, after hearing the parties, allows the claim and passes an award directing payment of compensation within 30 days from the passage of the order which was on 10.08.2018. The Insurance Company calls the said order in question in W.P.No.1628 of 2019. Later, alleging non-payment of compensation, the claimant files W.P.No.10803/2020. Therefore, the Insurance Company has challenged the award and the claimant has sought implementation of the award by the Insurance Ombudsman in terms of its order dated 10.08.2018.

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Learned counsel appearing for the SBI General Insurance would contend that the order of the ombudsman is

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erroneous as the husband of the petitioner did not succumb to the injuries that he sustained in the road accident but was an independent incident of death due to heart attack, and as the death is due to heart attack, would not be covered under the personal accident insurance claim, in effect, he would submit that compensation cannot be paid to the claimant and therefore seeks quashment of the order of the Insurance Ombudsman.

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The learned counsel for the respondent/claimant would submit that the discharge summary of the hospital would clearly indicate that the deceased succumbed to the injuries sustained in the road accident as he was still under treatment when he died and therefore, would submit that the compensation cannot be denied on such technical plea.

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I have given my anxious consideration to the respective submissions made by the respective learned counsel and perused the material on record.

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The afore-narrated facts are not in dispute. The only issue that falls for consideration is, whether the death of

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the claimant’s husband had happened due to the injuries sustained by him in the road accident or was an independent incident of a heart attack.

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The afore-narrated facts are not in dispute. The Insurance policy being in subsistence as on the date of death is also not in dispute. The contention of the learned counsel for the Insurance Company is that the husband of the claimant did not succumb to the injuries sustained in the road accident. It therefore becomes necessary to notice the discharge summary maintained by St. John’s hopsital at the time of death of the husband of the claimant. The opinion of doctors at St.Johns hospital would read as follows:

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“FINAL OPINION AS TO THE CAUSE OF DEATH: On the perusal of the hospital case records, findings by the treating doctor and autopsy finding, I am of the opinion that death was due to 'Cardiac Failure' as a result of coronary artery disease".

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"HOSPITAL COURSE: Patient was admitted through Emergency with ongoing spinal shock. During hospital course, he underwent cervical discectoms and stabilisation after being haemodynamically stable Post operatively patient improved symptomatically and neurologically (Motor power improved to UL4/5 grip 0 and Right LL 3/5. Left ll 1/5). Patient was continued physiotherapy. Wheelchair ambulation and taking normal diet. Operative wound healthy. Patient was planned for transfer to PMR for rehabilitation but on 24/12/2016 (5.15 AM) he developed sudden onset

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WP No. 10803 of 2020 C/W WP No. 1628 of 2019

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respiratory difficulty followed by unresponsiveness and cardiac arrest. Patient was incubated CPR given according to ACLS protocol. Inspite of multiple cycles of CPR, patient did not respond and succumbed to death on 24.12.2016 at 6.10 AM. "

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(Emphasis added)

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The discharge summary of the hospital would indicate that the husband of the claimant ceased to respond to the treatment on 24.12.2016 at 6.10 a.m. It was not a case where the husband of the petitioner was discharged and later, dies of a heart attack. He died of heart attack while taking treatment in the hospital. Therefore, the death is directly attributable to the injuries sustained in the road accident is the unmistakable inference that can be drawn from a perusal at the discharge summary.

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Notwithstanding the afore discharge summary being unequivocal, the Insurance Company declines to grant compensation which drove the claimant to the doors of the Insurance Ombudsman. The Insurance Ombudsman by its order dated 10.08.2018 allows the claim, directs payment within 30 days from the date of the award. It is germane to

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WP No. 10803 of 2020 C/W WP No. 1628 of 2019

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notice the reasons rendered by the Insurance Ombudsman,

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they read as follows:

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" 19.Reason for Registration of complaint :-

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The complaint falls within the scope of the insurance Ombudsman Rules, 2017

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20.The following documents were placed for perusal .

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a. Complaint along with enclosures,

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b. Respondent Insurer's SCN along with enclosures and

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c. Consent of the Complainant in Annexure VIA & and Respondent Insurer in VII A

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21. Result of personal hearing with both the parties (Observation & Conclusion):

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The Forum has perused the documentary evidence available on record and the submissions made by both the parties during the personal hearing. After After analysing the same, this Forum noted that the dispute is as to whether the claim is for accidental death or due to heart aliment.

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The Complainant submitted that her husband was admitted into the hospital for accidental injury. After initial treatment from Hosmat Hospital, he was referred to St. John's hospital. He underwent surgery of the neck and continued to be in the same hospital till his death. The hospital had given the discharge summary which RI had not considered.

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WP No. 10803 of 2020 C/W WP No. 1628 of 2019

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The RI reiterated their contentions submitted in SCN and stated that they have relied on PM report which states that death was due to heart attack, independent of accident and the same was not covered under the terms and conditions of policy.

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This Forum has gone through the relevant terms and conditions of policy and the submission made by both the parties. As the decision of RI is based on PM report, this Forum also has perused the 'Death Summary' of the same hospital. It is stated that during the hospital course, patient underwent cervical discectomy and stabilisation after being haemodynamically stable. Patient developed sudden onset respiratory difficulty followed by unresponsiveness and cardiac arrest. Inspite of multiple cycles of CPR (cardiopulmonary resuscitation) patient did not respond and succumbed to death. It is observed that an FIR is registered under Section 304(A) of IPC (causing death by doing any rash and negligent act not amounting to culpable homicide).

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It is not in dispute that the insured person met with an accident and was admitted to the hospital. The fact is that the death occurred during the continuity of the treatment in the same hospital. This Forum having perused the discharge summary of the hospital and other records is convinced that the death occurred during the continuity of treatment in the same hospital and proximate cause of death was road accident.

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This Forum has also noted that the complainant has filed a case bearing No.MVC 3498/2017, Bengaluru claiming compensation for the death of her husband from the website of Karnataka judiciary before the Chief Judge, Court of Small Causes, Bengaluru. The same would not have been registered had the cause of action not arisen out of accident. The compensation, if any, likely to be received from the Motor Accidents Claims Tribunal has no bearing on

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WP No. 10803 of 2020 C/W WP No. 1628 of 2019

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the present complaint, as this complaint is an independent one based on the policy obtained from RI, on payment of premium.

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Hence, this Forum is not in favour of upholding the contention of Repudiation of claim and the Respondent Insurer is directed to settle the claim for the sum insured as per the terms and conditional of policy.

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AWARD

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Taking into account of the facts and circumstances of the case, the documents the oral submissions made by both the parties, this Forum is of the opinion that the decision of the Respondent Insurer is not in accordance with the terms and conditions of policy.

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The Respondent Insurer is hereby advised to settle the claim for the sum insured as per the terms and conditions of policy along with interest @ 8.5% p.a. after 30 days from the date of submission of last claim papers, as per as per Regulation 15(10) of Protection of Policy Holders' Interests Regulations, 2017 issued vide IRDAI notification dated 22.06.2017.

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Hence, the complaint is allowed.

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22. Compliance of Award:

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The attention of the Complainant and the Respondent Insurer is hereby invited to Rule 17(6) of the Insurance Ombudsman Rules, 2017, where under the Respondent Insurer shall comply with the Award within 30 days of the receipt of the Award and shall intimate compliance of the same to the Ombudsman.

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WP No. 10803 of 2020 C/W WP No. 1628 of 2019

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Dated at Bengaluru on the 10th day of August, 2018".

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(Emphasis added)

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15. The Insurance Ombudsman considers the medical

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history of the deceased, the records of the hospital and comes to conclude that the cause of death due to heart attack was directly attributable to the injury sustained by him in the road accident, as he was still under treatment. The ombudsman also observes that it is not a case where the death had occurred after a long time of his discharge but had occurred in the hospital during treatment. The perusal at the discharge summary would also indicate or vindicate the findings of the insurance ombudsman. The discharge summary would indicate that the injury sustained by the deceased in the road accident was the reason for the cause of death. If the discharge summary and the order of the Insurance Ombudsman are read in tandem, it would unmistakably indicate the entitlement of the claimant for compensation as the death was directly attributable to the accident that occurred on 07.12.2016. It is in public domain that in medical parlance coronary thrombus or

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WP No. 10803 of 2020 C/W WP No. 1628 of 2019

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myocardial infarction (MI) sometimes would occur as an incident in the perioperative period which is during the course of treatment, particularly, in major procedures, it is again, in medical parlance that cervical discectomy is a major procedure and can result in fatality during the treatment.

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Insofar as reliance to the judgment of the Apex

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Court in the case of Alka Shukla Vs. Life Insurance Corporation of India reported in (2019) 6 Supreme Court Cases 64 , the said judgment of the Apex Court is distinguishable on the facts of the case without much ado. At paragraph-6, the facts are noticed and were that the deceased had suffered a heart attack, after a fall from a motorcycle. It is not a case here that he suffered heart attack and then, got admitted to the hospital. The deceased in the case at hand had suffered injuries in the road accident i.e., neck injury and during the treatment suffered a heart attack. Therefore, the judgment would not become applicable to the facts of the case.

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WP No. 10803 of 2020 C/W WP No. 1628 of 2019

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Finding no warrant to interfere with the order of the Insurance Ombudsman, the petition filed by the SBI General Insurance lacking in the merit, stands dismissed. As a consequence whereof, the petition filed by the claimant succeeds.

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For the aforesaid reasons, the following:

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ORDER

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(i) Writ Petition No.1628 of 2019 filed by the Insurance Company stands dismissed.

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(ii) Writ Petition No.10803 of 2020 filed by the claimant is allowed.

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(iii) A mandamus is issued to the Insurance Company to comply with the order dated 10.08.2018 as expeditiously as possible, at any rate within four weeks from the date of receipt of the copy of this order, failing which, the claimant would become entitled to

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interest @ 6% p.a. in addition to what is already awarded by the Insurance Ombudsman, from the date the payment fell due till the date of payment.

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Sd/JUDGE

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JS List No.: 1 Sl No.: 46

The SBI General Insurance Company Limited v. Insurance Ombudsman

Case brief

What is this about?

What did the court decide?

The SBI General Insurance Company Limited v. Insurance Ombudsman

Case brief

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What did the court decide?

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