V.GOPALA GOWDA, CJ & B.N.MAHAPATRA, J. W.P.( C) No.11981 OF 2009 (Decided on 13.01.2011) DHRUBA CHANDRA BEHERA ………. Petitioner. .Vrs. NATIONAL INSURANCE CO.LTD. & ORS. ………. Opp.Parties. [ For Petitioner - M/s. Madhusudan Chhotray, R.Mohanty. R.K.Chhotray & For Respondents - Mr. S.KPadhi, Sr Advocate & M/s Suresh Roy P.Roy, K. Ghosh & Miss A.Ghosh With him for O.P Nos. 1and 2 Mr.C.R. Swain for OP.Nos .3&4 V.GOPALA GOWDA, C.J. The petitioner, claiming to be the nominee of the policy holder, has filed this writ petition for a direction to the opposite parties to sanction and disburse the amount under the policy in question with interest as per this Court’s order dated 6.5.2009 within a stipulated time and for payment of compensation for the loss of earning, mental agony and expenses for non-disbursement of the amount in spite of the direction of this Court in the order referred to above. 2. The case of the petitioner is that he is the nephew of one Birabara Behera who accepted him as his son with love and affection from his childhood. Said Birabara Behera had insured himself under the Janata Personal Accident Claim Policy with the opposite party no.1 which had a tie-up arrangement with opposite party nos. 3 and 4 for which they were empowered to cater personal life insurance policies like Mediclaim Insurance, Personal Accident Insurance and Amartya Siksha Yojana Policy to their members. In the policy, the insured had declared the petitioner as his nominee. The insured was unmarried. The petitioner being the nominee was entitled to get all the legal compensation as per the insurance policy. After the death of the insured Birabara Behera on 9.8.2005 due to snake bite the petitioner being the nominee submitted the claim with the opposite party no.1 along with all relevant documents for disbursement of the amount under the policy in question. As there was no response from the insurer for a pretty long time and on repeated approaches on 4.5.2006 the insurer repudiated the claim without any basis, the petitioner approached this Court by filing W.P.(C) No.15847 of 2008 seeking for issuance of a direction to the insurer-opposite party no.1 to settle the claim under the insurance policy in question referred to supra. This Court vide order dated 6.5.2009 directed opposite party no.1 to consider and dispose of the claim of the petitioner as expeditiously as possible preferably within a period one month from the date of production of a certified copy of the order. Within the period stipulated in the order, the order was not complied with. Again the petitioner has approached this Court. It is the case of the petitioner that in spite of fulfilling all the requirements by filing the application claiming the insured amount, opposite party no.1 who is the sanctioning authority did not either sanction the amount or intimate by letter that his claim has been repudiated. Therefore, the petitioner enquired the matter through opposite party no.4 regarding his claim. In turn, opposite party no.4 informed the petitioner that they have sent letter regarding the insured amount to opposite party no.1. It is also further stated that the petitioner along with his advocate had gone to Kolkata Office of opposite party no.1 to intimate the Court order by taking another certified copy and another representation Annexure-2. In spite of the aforesaid efforts made by the petitioner, opposite party no.1 did not respond to the Court order either sanctioning the insured amount or repudiating the claim. Therefore, once again the petitioner has left with no other alternative but to approach this Court seeking for the reliefs as stated supra. The ground urged by the learned counsel for the petitioner in support of the claim is that inaction of the insurance company to disburse the amount despite the fact that the petitioner is the nominee and also the legal heir under the Hindu Succession Act, 1956 and the inaction of the Insurance Company violates Articles 14 and 21 of the Constitution. The petitioner has also placed reliance upon the guidelines which are extracted in this judgment. 3. It is also relevant to refer to the documents, i.e. the insurance policy Annexure-1 in the name of the insured, copy of the legal heir certificate Annexure-2 series, certificate issued by Officer-in-charge, Govindpur police station stating that the insured expired on 9.8.2005 due to snake bite as ascertained from the register of Mahidharpada P.H.C. and local enquiry,Annexure-3 the application for death claim of the insured, Annexure-4 the Janata Personal Accident Insurance Policy Claim Form in respect of the insured wherein the Assistant Surgeon has certified in the relevant column to the following effect: “ As the patient did not improve and went to coma state, the patient was referred to S.C.B.Medical College,Cuttack”. 4. The claim is opposed by opposite party nos.3 and 4 by filing counter affidavit. In the counter affidavit, they have admitted about the order passed on 6.5.2009 in the earlier writ petition. At paragraph 9, it is stated that according to the memorandum of understanding existing amongst National Insurance Company Ltd., Division III, 8 India Exchange Place, Kolkatta-700001 and the answering opposite party, Golden Trust Multi Service Club of GTFS to extend the insurance coverage to its member under the Janata Personal Accident Insurance Policy. NIC have an exclusive right and authority to entertain process and settlement of such claim. GTFS have no role to play in this regard. Therefore, no liability attaches to GTFS. Opposite party nos.3 and 4 are not jointly and/or severally liable to settle the claim of the claimant. The authority to settle the claim is solely with opposite party nos.1 and 2 as per memorandum of understanding and subsequent letter dated 17.7.2001. With reference to the earlier order dated 6.5.2009 in the writ petition referred to supra, it is stated by the opposite party no.1 that after receipt of this Court’s order supra it appointed an Investigator to ascertain the exact cause of nature of death of the deceased but from the investigation carried out by the Investigator it is revealed that deceased died a natural death and the death of the deceased due to snake bite is not correct. The entire investigation report has been annexed as Annexure-A/1 series to the counter affidavit filed on behalf of opposite party nos.1 and 2.At paragraph 6 of the counter affidavit it is stated that opposite party nos.1 and 2 issued the insurance policy in respect of the deceased which is subject to certain conditions. Condition nos.1 and 2 on which reliance is placed read thus: (1) Upon the happening of any event which may give rise to a claim under this policy the insured forthwith give notice thereof to the Company. Unless reasonable cause is shown, the Insured should within one calendar month after 2 the event which may give rise to a claim under this policy, give written notice to the Company with full particulars of the claim. (2) Proof satisfactory to the Company shall be furnished of all matters upon which a claim is based. Any medical or other agent of the company shall be allowed to examine the person of the Insured on the occasion of any alleged injury or disablement when and so and so often as the same may reasonably be required on behalf of the company and in the event of death to make a PM report, if necessary shall be furnished within a space of 14 days after demand in writing and in the event of a claim in respect of loss of sight the insured shall undergo at the insurer’s expenses such operation as treatment as the company may reasonably deem desirable. Provided that in case of a claim by death or permanent total disablement all sums payable only on the delivery of this Policy cancelled and discharged. Condition no.2 has to be read with scope of cover. Therefore, learned counsel submits that the petitioner is not entitled for the relief as sought for. 5. This Court issued notice on 10.9.2009. Thereafter when the matter was listed on 15.9.2010 having regard to the facts pleaded by the parties and the documents produced in respect of the factual and legal contentions, after referring to the report of the doctor of Mahidharpada P.H.C., who had examined the policy-holder on 9.8.2005 at 9 p.m. and noted in Annexure-2 “poisonous snake bite” and at 11 p.m. on the same day he has mentioned in Annexure-2 that “as the patient did not improve, he is referred to S.C.B.Medical College, Cuttack”, this Court directed the Chief District Medical Officer, Cuttack to conduct an enquiry and submit a report . With reference to the same, learned senior counsel Mr.Padhi placing reliance upon Annexure-C/1 submitted that the matter was considered to know whether there was snake bite or not of the deceased insured. This contention is required to be examined if such term and condition is there in the policy. It can be verified from the external injuries found on the body of the deceased person whether there was a snake bite or not. This aspect was kept out of consideration. Having regard to the documents Annexure-2 series filed in the earlier writ petition and the stand taken by the Insurance Company, we directed the C.D.M.O.,Cuttack to conduct enquiry in this regard with reference to Annexure-2 series and report whether the noting made by the doctor of Mahidharpada P.H.C. on 9.8.2005 is genuine or not and the said report should be submitted in a sealed cover within a period of 10 days from 15.9.2010. Pursuant to the same, the report was received on 27.11.2010 along with the Xerox copy of the letter written by the Medical Officer, P.H.C.,Mahidharpada, Cuttack. 6. With reference to the above said rival factual and legal contentions, following points would arise for consideration: (a) whether the deceased died on account of snake bite which is an unnatural death and therefore the petitioner is entitled as nominee/legal heir to get the assured sum and (b) whether the repudiation of the claim by the opposite party nos.1 and 2 is legal and valid? (c) What order? 7. The aforesaid points are required to be answered in favour of the petitioner for the following reasons. It is an undisputed fact that at the instance of opposite party no.4 the deceased insured has taken the policy for a sum of Rs.5,00,000.00 with certain terms and conditions. It is also an undisputed fact that the claim made by the petitioner that the deceased insured is an unmarried person and the petitioner is his nominee in the policy and the averments that he being the nephew, he has accepted him as the 3 legal heirs to succeed to his estate. In evidence of the fact the legal heir certificate issued in Misc.Case No.63 of 2005 by the Revenue Officer, Kantapada was produced in the earlier writ petition. The said document is not disputed. Further on 9.8.2005, the insured was taken to Mahidharpada P.H.C.,Cuttack and was examined by the doctor who noted in the out-door ticket “c/o snake bite (mentioning size of the wound), patient conscious and the doctor doubted the same to be a case of poisonous snake bite and on the same day at 11 a.m. it was further noted “as the patient did not improve, he is referred to S.C.B.Medical College, Cuttack”. The correctness of the same was required to be enquired by the Chief District Medical Officer pursuant to our direction dated 15.9.2010.Accordingly, he addressed a letter to the office of P.H.C.,Mahidharpada and the Medical Officer, Mahidharpada P.H.C. in turn has written letter dated 27.9.2010 to the C.D.M.O.,Cuttack to furnish the information sought for by him. It is relevant to extract the contents of the said letter: “ As per your advice, I verified the OPD and IPD registers of this institution on 27.9.2010 and found the following: One patient named Birabar Behera HM 54 years s/o. Banchhanidhi Behera of vill: Bhodala was seen vide OPD Regd.No.12346 dated 9.8.2005 at 9 p.m. for snake bite and was referred to S.C.B.Medical College & Hospital,Cuttack by Dr.Raghunath Nayak, MO. Mahidharpada P.H.C. on 9.8.2005. The patient was not admitted to IPD and there is no record in IPD Register regarding this patient. This is for your information and necessary action. Yours faithfully, Sd. Medical Officer, PHC,Mahidharpada, Cuttack.” The aforesaid letter was sent to this Court in sealed cover which was opened in Court. We have perused the same which clearly discloses the fact that the insured was examined in the PHC, Mahidharpada on 9.8.2005 and he was also referred to the S.C.B.Medical College, Cuttack which fact is forthcoming from the letter written by the Medical Officer, PHC, Mahidharpada on 27.9.2010 furnishing information to the C.D.M.O.,Cuttack. The said information is furnished from the records available in the PHC. From the said two documents it is very clear that the insured deceased was considered to have poisonous snake bite and he was referred to S.C.B.Medical College and Hospital, Cuttack by Dr.Raghunath Nayak, Medical Officer, PHC, Mahidharpada. He was not admitted to IPD. There was no record in IPD regarding this patient. The said certificate is read with the certificate granted by the O.I.C.,Govindpur P.S. dated 4.11.2005 stating that the deceased Birabar Behera son of Banchhanidhi Behera of Bhodol, P.S.Govindpur, Cuttack expired on 9.8.2005 due to snake bite. The said certificate was issued after making local enquiry and from the register of Mahidharpada PHC. These documents would clearly go to show that the death was due to poisonous snake bite. Therefore, we have to accept the case pleaded by the petitioner. The investigation report produced as Annexure-A/1 cannot be accepted by this Court for the reason that the same is not based on the verification of record either from the aforesaid Mahidharpada PHC or from the police station OIC of which has issued the certificate. As could be seen from the said investigation report, the investigation was made by the Investigator on 28.7.2009, 12.8.2009, 26.10.2009 and 13.11.2009. Against col.6 Status of the claim it is mentioned: “Insured Birabara Behera was a physically handicap person 4 and he was issueless. He has no income and died natural due to old age.” Certain observations are made at page 4 of the report. With regard to findings from hospital, it is mentioned that on due verification of the OPD register it was observed that serial number of the out-patients are not mentioned in serial.OPD No.12346 dated 9.8.2005 seems to be a tampered one. Therefore, for better appreciation of facts the original OPD register may be called for through court along with the duty chart of the hospital on 9.8.2005. One Bishnu Charan Pradhan was examined by the investigator in presence of the claimant, i.e. petitioner. On the basis of his statement, the investigator recorded a finding that it is a fact that the insured died normally in his house due to old age. He has not died accidentally due to snake bite. The said finding in the report is contrary to the certificate given by the doctor who treated him on 9.8.2005 at Mahidharpada PHC which fact is affirmed by the letter of the present Medical Officer, Mahidharpada PHC who furnished the report pursuant to our direction and also the certificate issued by the Officer-in-charge of Govindpur P.S.referred to supra. The statement of Bishnu Charan Pradhan could not have been believed as he has not been put to the test of cross- examination. The investigator has believed him without believing the claimant’s version without giving reasons. Therefore, the opinion formulated by the investigator could not have been the basis for not settling the claim of the petitioner herein. Insistence on the post-mortem report is not required in view of the guidelines which are required to be followed contained in Chapter 5 of Double Accident Benefit Claims and Disability Benefit Claims. Clause 1.5 reads as under: “1.5 Sometimes accidents are not reported to the Police and no police inquest or Post-mortem Examination is carried out. In the absence of Panchnama/FIR, Police Inquest and Post-Mortem Examination reports, the claimant must establish accident as the cause of death by other cogent evidence. But we cannot take a stand that cause of death can be established only by mans of the above reports. The alternate proofs such as statement of eye witness to the accident, the result of our own enquiries, attending Physician’s or Hospital Certificate etc. may be sufficient to establish that the death of the life assured was by an accident and not by suicide or other causes excluded by the clauses in the proviso to the Accident Benefit condition. The claimant should state why the accident was not reported to the police.” From a reading of the aforesaid guidelines, insistence on post-mortem Report is not tenable. The claimant must establish accident as the cause of death by other cogent evidence as mentioned in the guidelines extracted above. In view of the aforesaid documents produced herein it is beyond reasonable doubt that the death of the insured was on account of bite of poisonous snake as certified by the doctor who treated him at Mahidharpada PHC which has been made available for our perusal along with the report of the C.D.M.O.,Cuttack supported by documents Annexure-2 series referred to supra. For the reasons stated supra, the claim of the petitioner is justified. The stand taken by the Insurance Company-opposite party no.1 on the basis of the investigation report after order was passed by this Court in the earlier writ petition is not acceptable. The investigation was not made immediately after the death of the insured and the report was submitted after examining a person who has not seen the death and without accepting the documentary evidence issued by the doctor who treated the insured at the PHC, Mahidharpada and the certificate issued by the OIC of the concerned P.S. Believing the statement of a person who has not seen the death and recording a finding 5 and coming to the conclusion that the death is not accidental is contrary to the factual position and the materials on record. Therefore, accepting the opinion of the investigator and not willing to settle the claim is wholly untenable. Therefore, the case pleaded by opposite party nos.1 and 2 cannot be accepted. On the other hand, having regard to the facts pleaded and documents referred to and the report of the C.D.M.O. along with the letter sent by the Medical Officer, PHC, Mahidharpada stating that the insured was examined by the doctor on 9.8.2005 who has noted the nature of injuries and has referred the patient to S.C.B.Medical College, Cuttack at 11 a.m. on that day would clearly prove that it is an alternate method of proving accidental death as provided in the guidelines is sufficient for us to accept the case pleaded by the claimant that the death of the insured is unnatural death/accidental death on account of poisonous snake bite. Therefore, we allow the writ petition and issue rule directing the opposite party nos.1 and 2 to settle the insurance claim and pay the amount of Rs.5,00,000.00 to the petitioner with 6 per cent interest from the date the amount became due, namely the date on which the claim petition was filed till the date of realization. Opposite party no.1 is directed to pay the insurance amount under the policy along with interest awarded within two weeks of receipt of the order as the claim is being pending for the last six years. Writ petition allowed. 6