IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 WP(C).No. 16036 of 2007(H) ------------------------------------- PETITIONER(S): ---------------------- MR. MAYAN DIGVIJAY, RESIDING AT 'MAYA', KANNADI P.O., PALAKKAD-678701, (NOW RESIDING AT MADINAT SULTAN QABOOS, POST BOX NO.45, CODE NO.115, SULTANATE OF OMAN). BY ADV. MR.V.CHITAMBARESH MR.T.C.SURESH MENON MR.JIBU P THOMAS RESPONDENT(S): -------------------------- 1. THE INSURANCE OMBUDSMAN, KOCHI, 2ND FLOOR, CC.27/2603, PULINAT BUILDINGS, M.G. ROAD, ERNAKULAM. 2. THE GRIEVANCE CELL, THE NEW INDIA ASSURANCE COMPANY LIMITED, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G. ROAD, KOCHI. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, N.S. TOWERS, NEAR STADIUM BUS STAND, PALAKKAD-678 013. ADV. MR.KKM.SHERIF MR.P.A.MOHAMMED ASHROF FOR R2 MR.A.A.ZIYAD RAHMAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.16036/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE DEATH NOTIFICATION DT. 22.11.04. P2:- COPY OF THE CERTIFICATE ISSUED BY THE MINISTRY OF HEALTH SULTANATE OF OMAN DT. 24.11.04. P3:- COPY OF THE CERTIFICATE OF INSURANCE ISSUED BY THE 3RD RESPONDENT DT. 25.1.00. P4:- COPY OF THE APPLICATION IN PROFORMA DT. 9.6.05. P5:- COPY OF THE CERTIFICATE OF DEATH ISSUED BY THE INDIAN EMBASSY AT MUSCAT DT. 24.11.04. P6:- COPY OF THE COMMUNICATION DT. 8.12.05. P7:- COPY OF THE NEWSPAPER REPORT DT. 24.11.04. P8:- COPY OF THE COMMUNICATION DT. 15.6.06. P9:- COPY OF THE COMMUNICATION DT. 1.9.06 . P10:- COPY OF THE PATIENT REPOSITORY ISSUED BY THE MINISTRY OF HEALTH DT. 13.3.07. P11:- COPY OF THE ORDER DT. 20.3.07. TRUE COPY P.A. TO JUDGE TSS P.R.RAMACHANDRA MENON, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No. 16036 of 2007 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 1st day of April, 2009 J U D G M E N T This is a tragic case of death of the wife of the petitioner who had to bid farewell to this world, pursuant to the complications developed just because of an “ant-bite”. 2. Petitioner's wife, a noted gynaecologist, working abroad on the ill fated day (15.11.04) was bitten by 'black ant' in the Sultanate of Oman and she was immediately taken to the hospital because of serious complications developed, as she was allergic to ant bites. Despite the best medical treatment, her life could not be saved and she succumbed to the fate taking her last breath on 24.11.2004. The cause of death is stated as 'anaphylactic shock' due to the 'ant bite' leading to respiratory failure, cardiac arrest and hypoxic encephalopathy. 3. The petitioner as well as his deceased wife were insured by the third respondent company under Ext.P3 Pravasi Suraksha Kudumba Arogya Policy for a sum of Rs.10,00,000/- each. Pursuant to the sad demise of the wife of the petitioner, he put up Ext.P4 claim before the third respondent/Company for realising the compensation. Subsequently, as instructed by the Company, other necessary documents were also furnished for adjudication of the claim. However, the Company, as per Ext.P8 repudiated the claim, stating that the death of the petitioner's wife W.P.(C) No. 16036 of 2007 -:2:- did not come within the purview of the Policy. It was also mentioned that no post-mortem was conducted and the death was not due to the immediate cause of 'ant bite', particularly since the cause of death has been admittedly shown otherwise, i.e. death having occurred due to the respiratory failure, cardiac arrest and hypoxic encephalopathy. 4. Subsequently, the petitioner took up the matter by filing a complaint before the first respondent/Insurance Ombudsman, whereupon a report was called for from the Company. After considering the contentions raised from both the sides, the complaint preferred by the petitioner before the first respondent was dismissed, for the reasons discussed in paragraphs 9 to 14 of the said order. 5. The petitioner has approached this Court challenging Ext.P11 order passed by the first respondent and seeking a Writ of Mandamus directing the respondent Company to honour the claim and disburse the amount covered under Ext.P3 Policy. Admittedly, the issue involved in the present case is with regard to the rights and liabilities arising out of a contract under Ext.P3 Policy issued by the third respondent Company. It has been held by this Court as per the decision in O.P. 10435 of 2001 that the adjudication of such issue cannot be pursued by this Court under Article 226 of the Constitution of India and that the remedy of the persons concerned lies elsewhere. More so, when it is a matter which requires to be W.P.(C) No. 16036 of 2007 -:3:- decided on the basis of the evidence for realising and deciding whether the claim is payable within the terms of the contract entered between the parties. 6. The main dispute raised by the Company as well as the finding given by the first respondent is that 'ant bite' cannot be regarded as an accident. The term 'accident' only means something which is unforeseen. In the instant case, the factum of death of the petitioner's wife is admitted. Similarly, the fact that she was bitten by 'ants' and it was the basic cause for developing the further complications is also admitted. Equally or more so is the position, that the life of the petitioner's wife could not be saved despite the best medical treatment made available to her. The consequence of the accident may vary from person to person. In other words, there are cases where even the poison inflicted by 'snake bite' may not attract any adverse consequence in some persons. Similarly, there may be persons having particular nature of their body constitution and metabolism, whereby even electric shock may not have any adverse consequence. In other words, the complications resulted because of “ant bite”, “snake bite” or such other circumstances cannot be considered as having universal consequences in all individuals. The question to be considered is whether the complications developed leading to the death were directly attributable to the accident/”ant bite” - though its effect may be W.P.(C) No. 16036 of 2007 -:4:- trivial in most persons, but fatal in the case of somebody like petitioner's wife, who was very much allergic to 'ant bites' as revealed from the medical records. No doubt, this is a matter which is liable to be looked into by the higher authorities of the second respondent and not for this Court to express any opinion for the time being. 6. In the above circumstances, the petitioner is directed to approach the higher authorities of the respondent Company for the redressal of his grievances. On such an event, the matter shall be considered and finalised by the Company, passing appropriate orders in accordance with law, as expeditiously as possible, at any rate within 3 months. The Writ Petition is disposed of accordingly. P.R.RAMACHANDRA MENON, JUDGE kmd.