Life Insurance Corporation of India v. Ajith Kumar M.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945** ## **WP(C) NO. 3238 OF 2021** ## **PETITIONER/S:** LIFE INSURANCE CORPORATION OF INDIA DIVISIONAL OFFICE,JEEVAN PRAKASH, THIRUVAMPADY.P.O, THRISSUR-680022. REPRESENTED BY THE SECRETARY(LEGAL),LIC OF INDIA,SOUTHERN ZONE LEGAL CELL, DIVISIONAL OFFICE,JEEVAN PRAKASH, M.G.ROAD,ERNAKULAM-682011). BY ADV S.EASWARAN ## **RESPONDENT/S:** 1 MR.AJITH KUMAR M., PUSHPAYALAYAM,NGO QUARTERS,THRIKKAKARA.P.O, KAKKANAD682021. 2 THE INSURANCE OMBUDSMAN, OFFICE OF THE INSURANCE OMBUDSMAN,REPRESENTED BY ITS SECRETARY,2ND FLOOR,PULINAT BUILDING,OPP.COCHIN SHIPYARD, M.G.ROAD,ERNAKULAM,KOCHI-682015. BY ADVS. SRI.SHAIJAN C.GEORGE SMT.NEEBA A.B. SMT.ANJU TREESA GEORGE VINAI JOHN(K/1116/2021) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) No.3238/2021 -2- ## **J U D G M E N T** This writ petition has been filed challenging Ext.P7 order of the Insurance Ombudsman directing the petitioner, the Life Insurance Corporation of India, to pay to the 1[st] respondent a sum of Rs.18,00,000/under four policies taken out by the 1[st] respondent from the Life Insurance Corporation of India. All four policies were issued under different schemes of the Life Insurance Corporation of India. It is not disputed that each of these policies contained a clause for payment of certain benefits on the insured becoming disabled and a benefit referred to as a ‘ _double accident benefit’,_ which is twice the sum assured in the event of the insured meeting with an accident. According to the 1[st] respondent, he suffered an accident on 22-102017, as a result of which he became permanently disabled and, therefore, he is entitled to the benefits under the clause related to disability clause as well as for the amount payable under the double accident benefit clause. The Insurance Ombudsman accepted this claim. The Life Insurance Corporation is thus before this Court. 2. Sri. S. Easwaran, the learned counsel appearing for the petitioner, would submit that a reading of Ext.P7 order of the Insurance Ombudsman itself will indicate that the 1[st] respondent was not entitled to the benefits claimed in terms of the policies issued to him. It is submitted that it is clear W.P (C) No.3238/2021 -3- from the facts set out in Ext.P7 that the 1[st] respondent suffered a fall on the road, resulting in injuries to his head, which had, in turn, led to the disability. It is submitted that the 1[st] respondent was suffering from certain medical conditions as a result of which he had lost consciousness and had fallen on the road, resulting in injuries to him. It is submitted that the same cannot be termed as an accident or disability as contemplated by the terms of the policy. It is submitted that the claim intimation and the disability claim form submitted by the 1[st] respondent show that the 1[st] respondent was suffering from a condition known as ' _spastic tetraplegia and extra pontine myelinolysis'_ . It is submitted that ' _Spastic tetraplegia'_ is a spastic cerebral palsy that affects all 4 limbs and ' _Extra pontine myelinolysis'_ is one of the complications occurring secondary to rapid correction of ' _hyponatremia'_ . In other words, it is the submission of the learned counsel for the petitioner that since the injuries suffered by the 1[st] respondent and the consequential disability were not on account of any accident, the 1[st] respondent was not entitled to the benefit of insurance on account of disability and for the double accident benefit on account of the accident. It is submitted that the issue stands covered in favour of the petitioner by the judgment of the Supreme Court in _**Smt. Alka Shukla v. Life Insurance Corporation of India;** (2019) 6 SCC 64_ where the Supreme Court has, while considering an identical W.P (C) No.3238/2021 -4- issue, held that when an insured suffered a heart attack while riding a motorcycle, the same cannot be said to be an accident for the purpose of an accident policy. 3. Sri. Shaijan C. George, the learned counsel for the 1[st] respondent, refers to Ext.P7 in order to contend that there is no merit in the contention taken by the learned counsel for the petitioner. It is submitted that the 1[st] respondent clearly suffered an accident while on a public road as he had fallen down and sustained injuries to his head. It is submitted that the 1[st] respondent is completely paralysed and laid up on account of the above accident. The insurance company cannot take a hyper-technical view to deny the benefits under the policies in question by stating that the petitioner has not suffered an accident is the submission. It is submitted that the facts considered by the Supreme Court in _**Alka Shukla**_ (supra) are completely different from the facts of this case; therefore, nothing turns on the judgment of the Supreme Court in that case. 4. Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 1[st] respondent, I am of the view that the petitioner is entitled to succeed. The contention of the learned counsel for the 1[st] respondent that the judgment of the Supreme Court in _**Alka Shukla**_ (supra) does not apply to the facts of the present case does not appear to be W.P (C) No.3238/2021 -5- correct. In _**Alka Shukla**_ (supra) the question was whether a person who had obtained three policies from the Life Insurance Corporation of India in which there was a clause similar to the clause in this case covering accidents, was entitled to claim the benefits of the policies of insurance. After assessing the medical reports and further considering the meaning of the word 'accident' in P. Ramanatha Aiyar's 'Law Lexicon', to leading textbooks on the Law of Insurance and several judgments of various courts, including courts in the United States of America, Canada, the United Kingdom and Singapore it was ## held:- _“....... The outcome of the present case involves interpretation of the accident benefit cover. Breaking down the clause into its components, what it postulates is that:_ - _(i) The assured must sustain a bodily injury;_ - _(ii) The injury must solely and directly result from an accident;_ - _(iii) The accident must be caused by outward, violent and visible means;_ - _(iv) The injury must solely, directly and independently of all other causes result in the death of the assured; and_ - _(v) Death must ensue within a period of 180 days from the injury caused in the accident._ _What needs to be determined is whether the insured suffered a heart attack as a result of the injuries sustained from the fall from the motorcycle or whether the fall was a result of the assured suffering a heart attack in the first place._ _10 The plain reading of the policy is to be accepted as our guide. Under the policy, in order for the complainant to prove her claim, she must show direct and positive proof that the accident of the assured falling from his motorcycle caused bodily injury by external/outward, violent and visible means. The complainant will have to prove that the accident and the injuries_ W.P (C) No.3238/2021 -6- _sustained as a result were a direct or proximate cause of her husband’s death._ _11 In the present case, no post mortem of the deceased or police investigation was conducted. In the absence of a post mortem report indicating the nature of injuries sustained by the insured, we would have to rely upon the medical report that indicates the exact cause of death. The medical report of Dr Ajay Goverdhan who examined the assured on the date of the accident indicated that the insured suffered shoulder and chest pain and that the exact cause of death was an acute myocardial infraction. The insured was referred to a specialist, Dr S S Dhillon, who also recorded in his report that the diagnosis did not show the cause of death to be accidental. Dr S S Dhillon noted that the insured was experiencing pain in the left side of the chest and in the shoulder and there was a myocardial infarction. The insured was referred to Chandu Lal Memorial Hospital, a specialist medical center, where the OPD records noted that an ECG was taken at Dhillon Nursing Home and the insured was sweating and that he had chest pain, radiating to the left shoulder along with two episodes of vomiting. He died before he reached the hospital. There is no material on record to indicate that the assured sustained specific injuries as a result of a fall from the motorcycle or that the injuries were caused by outward, violent and visible means, which was the sole and proximate cause of his death. There is no direct nexus or causation between the assured suffering a heart attack and injuries sustained in an accident by outward, violent and visible means. Nothing has been brought on record to show that the injuries sustained by falling from the motorcycle aggravated the assured’s condition that eventually led to his death. In the absence of any evidence to the contrary, the medical evidence on record is itself proof that the insured died due to a heart attack and not due to an accident of falling from the motorcycle. The heart attack had a distinct effect of the insured falling off from his motorcycle._ xxx xxx xxx _12 In the present case, there is no evidence to show that any bodily injuries were suffered due to the fall from the motorcycle or that they led to the assured suffering a heart attack. There is no evidence to show that the accident took place as a result of any outward, violent and visible means. The assured died as a result of a heart attack which was not attributable to the accident.”_ In the light of the law laid down by the Supreme Court in _**Alka Shukla**_ (supra), it can only be held that in the facts of the present case, the 1[st] respondent is not entitled to the benefit under the policies in question as the injuries suffered by him were not on account of any accident. In the facts of W.P (C) No.3238/2021 -7- the present case, the 1[st] respondent fell down on the road on account of his medical condition. That cannot be termed as an accident entitling the 1[st] respondent to claim the benefits under the policies in question. The relevant clause in each of the policies taken out by the 1[st] respondent reads thus:- - (i) Policy Number: 771662995 _**“Clause 10.2 Accident Benefit:** If at any time when this Policy is in force for the full Sum Assured, the Life Assured, before the expiry of the period for which the premium is payable or before the Policy anniversary on which the age nearer birthday of the Life Assured is 70, whichever is earlier, is involved in an accident resulting in either permanent disability as hereinafter defined or death and the same is proved to the satisfaction of the Corporation, The Corporation agrees in the case of:”_ - (ii) Policy Number: 771943409 _“_ _**Clause 10. Accident Benefit (Allowed under Regular Premium Policies and during the accumulation period only)** : If the Accident Benefit is opted for, at any time when this policy is in-force for the full Sum Assured, if the Life Assured before the end of the accumulation period or before the policy anniversary on which the age nearer birthday of the Life Assured is 70 years, whichever is earlier, is involved in an accident resulting in either permanent disability as hereinafter defined or death and the same is proved to the satisfaction of the Corporation, the Corporation agrees in the case of:”_ ## (iii) Policy Number: 789663936 _“_ _**Clause 11. Accident Benefit** : If the Accident Benefit is opted for, at any time when this Policy is in force for the full Sum Assured, the Life Assured, before the date of expiry of the policy term or before the Policy anniversary on which the age nearer birthday of the Life Assured is 70 years, whichever is earlier, is involved in an accident resulting in either permanent disability as hereinafter defined or death and the same is proved to the satisfaction of the Corporation, the Corporation agrees in the case of: ”_ ## (iv) Policy Number: 789451880 _“If the Life Assured is involved in an accident at any time when this policy is in force for the full Sum Assured, and such injury shall within 180 days of its occurrence solely, directly and independently of all other causes result in_ W.P (C) No.3238/2021 -8- _(a) either permanent and total disability, as hereinafter defined or (b) death of the Life Assured and the same is proved to the satisfaction of the Corporation, the Corporation agrees in case of: ”_ A disability that occurred owing to a fall on the road owing to a pre-existing medical condition cannot be termed an accident. Therefore Ext.P7 order of the Insurance Ombudsman can only be set aside. 5. At this stage, the learned counsel for the 1[st] respondent would submit that if this court is of the view that the 1[st] respondent is not entitled to the benefits under the policies in question, there may be a direction that at least the amounts paid as premiums on three out of the four policies which have not yet matured may be refunded to the 1[st] respondent. It is also submitted that the amounts payable under the matured policy may also be paid to the 1[st] respondent, together with interest. The learned counsel for the petitioner, on instructions, would submit that the amount of premium paid by the 1[st] respondent on all the polices in question except the policy which has matured will be refunded to the 1[st] respondent. It is also submitted that the amounts payable on the policy, which has matured, will be refunded to the 1[st] respondent along with any applicable interest. 6. In the light of the above findings, this writ petition is allowed by setting aside Ext.P7. However, it is directed that the petitioner shall return the amount of premiums collected from the 1[st] respondent under the three policies which have not yet matured (without any interest) within one month W.P (C) No.3238/2021 -9- from the receipt of a certified copy of this judgment. It is further directed that the amount due in terms of the policy, which has matured, will also be paid to the 1[st] respondent along with applicable interest till the date of payment within the aforesaid time. Sd/- **GOPINATH P. JUDGE** AMG W.P (C) No.3238/2021 -10- ## **APPENDIX OF WP(C) 3238/2021** RESPONDENT EXHIBITS Exhibit R1(a) True copy of the certificate issued by the medical officer of Mercy Nursing Home Pvt. Ltd. dated 13.11.2020 Exhibit R1(b) True Copy of the Judgment in W.P.(C) No.30134/2015 dated 15.12.2020