State Consumer Disputes Redressal Commission
Surinder Handa vs Hdfc on 28 September, 2010
H
H.P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA-9.
RESERVED AT SOLAN ON 24.09.2010.
DECIDED ON 28.09.2010.
FIRST APPEAL No.257/2009.
In
the matter of:
Smt. Surinder Handa wife of Shri H.N. Handa,
Secretary, Mohan Meakin Limited, Resident of K-2, Mohan Meakin Limited, Solan
Brewery, District Solan, Himachal Pradesh.
Appellant/Complainant .
Versus
M/s HDFC ERGO General Insurance Company Limited, 5th
Floor, Express Towers, Nariman Point, Mumbai.
.. Respondent/OP.
For the Appellant:
Mr. Tek Chand, Advocate vice
Mr. Rahul Mahajan, Advocate.
For the Respondent: Mr. R.C. Gupta, Advocate.
FIRST
APPEAL No.371/2009.
M/s HDFC ERGO General Insurance Company Limited,
302 Ansal Plaza, Hudco Palace, Andrews Ganj, New Delhi-110 049.
Appellant/OP.
Versus
Smt. Surinder Handa wife oif Shri H.N. Handa, R/o
K-2, Mohan Meakin Road, Solan Brewery, District Solan, Himachal Pradesh.
..
Respondent/Complainant .
For the appellant: Mr. R.C. Gupta, Advocate.
For the respondent: Mr. Tek Chand, Advocate vice
Mr. Rahul Mahajan, Advocate.
.....
Hon'ble Mr. Justice Arun Kumar
Goel (Retd.), President.
Honble Mrs. Saroj Sharma, Member.
Honble Mr. Chander Shekhar Sharma, Member.
Whether approved for reporting? Yes.
..
O R D E R:
Justice Arun Kumar Goel (Retd.), President.
Both these appeals were listed for hearing on 22.09.2010, when Mr. R.C. Gupta, learned counsel for the OP was not available. As such Mr. Rahul Mahajan, learned counsel for the complainant was heard and case was adjourned to 24.09.2010, when Mr. Gupta appeared and he was heard at length.
2. As both these appeals have been arisen out of the order passed by District Forum, Solan in Consumer Complaint No.85/2006, as such were heard together and are being disposed of by this order.
3. Smt. Surinder Handa, hereinafter to be referred to as the complainant filed the complaint against M/s HDFC Chhub General Insurance Company Limited, hereinafter to be referred to as the OP alleging deficiency in service against the latter. This was disposed of vide impugned order passed by District Forum below on 10.07.2009 in the following terms:-
10. Consequently, the complaint is allowed. The OP- Insurance Company is directed to assess the claim of the complainant in accordance with the rules, apposite to it, without the insurer putting forth the embargo of rules as enjoined in section 3, item 28 of the insurance cover. The OP-Company shall assess the claim within a period of forty five days after the date of receipt of copy of this order and the admissible amount shall be defrayed to the complainant by the OP-Company within fifteen days thereafter. With these observations, the complaint stands disposed of. No order as to the cost. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
4. Both the parties are aggrieved from this order. Complainant has filed Appeal No.257/2009 asking for specific direction against the OP for payment of amount in terms of policy in question Annexure-I attached with the complaint, whereas Appeal No.371/2009 has been filed by the OP for setting aside the impugned order and consequently dismissing the complaint while allowing its appeal.
5. Another fact that needs to be noted here and on which the parties were not at variance at the time of hearing is, that sum of Rs.27,000/- which according to the OP was payable for the treatment etc. spent by the complainant stands already paid. This according to learned counsel for the complainant does not meet the requirement of the claim of his client as she was entitled to the specific admissible sum in terms of Annexure-1. Because she had sustained permanent disablement as per Table of Benefits-Table (B) of Annexure-I, thus he prayed for grant of amount accordingly.
6. During course of hearing of these appeals, M.A. No.770/2009 was filed by the complainant that stake of one of the its constituent of the original OP, i.e. Chhub Corporation has been purchased by HDFC, as such its name has been changed from existing HDFC Chhub General Insurance Company Limited, to HDFC-ERGO General Insurance Company Limited, as such original OP may be ordered to be substituted by this company. This position was not disputed by learned counsel appearing for the OP at the time of hearing of these appeals. Accordingly while allowing M.A. No.770/2009, name of OP is ordered to be substituted accordingly. Office to carry out necessary correction in the complaint file, as well as in its record.
7. Further facts on which learned counsel for the parties were not at variance are, that after having obtained cover in terms of Annexure-I, the complainant slipped in the bathroom of her house, and was taken to an Ortho Surgeon at Solan. As she required specialized treatment, therefore after being given first aid, she was advised to go to some such hospital. She was taken to P.G.I. Chandigarh on 04.04.2005 and was hospitalized there-from 25.04.2005 to 17.05.2005. She incurred an expense of Rs.1,72,376/- on her treatment as per her version. Bills of this amount were sent to the OP. Record shows that the parties were in correspondence. She filled in claim form as provided to her. These were forwarded by her to the OP is established from the correspondence that is there on record of complaint file, and was also not disputed on its behalf. According to the complainant she was entitled to the sum as per policy as she had sustained injury to her left knee (depressed tibial condyle fracture) and lower back. She had to undergo knee replacement in the Department of Orthopaedic Surgery, at Post Graduate Institute of Medical Education and Research, Chandigarh, (PGI). This fact is also made out from Annexure-IV certificate issued by this institute. Parties remained in correspondence, documents were being asked for from the complainant by the OP which she supplied. And when her claim was not settled, she sent legal notice Annexure-XX.
Finally she filed the complaint which was allowed in the aforesaid term.
8. When put to notice, stand of OP was, that the petition was not maintainable, her case did not fall within the purview of policy, there was no deficiency in service on its part, as such she had no cause of action. Jurisdiction of District Forum below was also questioned.
Finally it was urged by way of preliminary objection that in-accordance with terms of policy, amount has already been paid, as such nothing was due and payable by the OP. Issuance of policy Annexure-I was not disputed. While contesting the complaint, its stand was that because disability in terms of Annexure-I was not shown to be continuing for a period of 12 consecutive months by a Physician after this period, and there being no material to suggest that she was unable to give attention to her occupation of any kind for the remainder of her life, as such in the absence of such evidence, in view its Section 3, complaint was liable to be dismissed.
9. In the aforesaid background, learned counsel for the complainant submitted that there is ample material on record which proves the permanent disablement of his client for a continuous period of 12 consecutive months and the same was duly confirmed by a Physician. And it was also established beyond any shadow of doubt that she was unable to attend to her occupation as a house wife for rest of her life. Therefore her case squarely covered under Clause-28 of Section-3 of Insurance Policy, i.e. Annexure-I. According to him his clients case was also covered under Section-7 of Annexure-I policy, as she had suffered permanent disablement. In this connection he drew our attention to Annexure-IV certificate issued by the doctor, who attended upon the complainant at P.G.I., Chandigarh, as well as to document Annexure-X issued by Handicapped Board, Solan. A perusal of Annexure-X shows, that it is signed by three members of Government Hospital, Solan besides its Secretary, Medical Superintendent. It is clearly mentioned in it that nature of disablement of the complainant was 50% permanent. It purports to have been issued on 21.01.2006.
10. In the context of disability, we may mention that during pendency of complaint, complainant was examined by Handicapped Board of District Hospital, Solan. Original medical certificate of disability submitted by such Board after her examination on 22.01.2008 is at page-102 of the complaint file. For ready reference contents of this document are extracted herein below:-
MEDICAL CERTIFICATE FOR DISABILITY This is to certify that patient Mrs. Surinder Handa w/o Sh. HN Handa age 63 yrs FA R/o K-2, Mohan Mekin Ltd, Solan Brewery, Distt. Solan HP, was examined by Medical Board on 21-1-06 and was issued Disability Certificate No.3109 with disability 50% (fifty percent) of Left Lower Limb and was declared permanent in nature.
I have reexamined the same patient Mrs. Surinder Handa today on 22-1-08 along with other members of the Medical Board vide OPD slip No.8972-08 and found no change in the disability percentage. The old certificate holds valid today.
Sd/-
(Dr. Ashish Sharma) Ortho Surgeon, RH Solan, Member, (Medical Board).
Sd/-
(Dr. Paramjit Sharma) Eye Surgeon, RH Solan, Member, (Medical Board) Sd/-
Chairman (Medical Board)-
Cum-Medical Superintendent Regional Hospital, Solan.
11. An application for additional evidence to place on record this disability certificate was filed by the complainant. This is evident from the order of District Forum below of 31.03.2008.
What is its effect, when read with earlier two medical certificates regarding her disablement, i.e. Annexures-IV and X in the context of this case will be dealt with hereinafter.
12. Having heard learned counsel for the parties, and also after taking note of evidence on record, we are satisfied that disability as a result of her fall on 03.04.2005 suffered by the complainant continued for a period of more than 12 consecutive months after this date, and it was confirmed within 12 months as per Annexures-IV and X (supra), and thereafter is reinforced by the certificate issued by the Handicapped Board of the office of Chief Medical Officer, Solan as is clear from its contents, extracted hereinabove.
13. In the face of these documents submission of learned counsel for the OP Mr. R.C. Gupta, that earlier certificates were not within 12 consecutive months after the incident does not hold good. What he had to say in the context of additional evidence that was allowed to be placed on record and what is its rebuttal, his submission was that looking to the nature of injuries sustained by the complainant, operation of knee replacement was not attributable to the fall suffered by the complainant on 03.04.2005. To the contrary it was due to age and other related decaying process of bones. This plea is without merit and is being noted to be rejected being contrary to the proved facts on record as well as in the face of un-rebutted evidence in that behalf. Nothing prevented the OP to have controverted the last medical certificate extracted above and for that matter, even Annexures-IV and X. Besides specific case of the complainant set out in her complaint was that knee replacement was advised to her because of her fall in the bathroom. This plea is proved from her evidence and there is no rebuttal to it.
14. In the context of permanent total disablement as per Clause-28 of Section-3 of Annexure-I insurance policy, we are of the confirmed view that whole thrust of the case of the OP is, that Annexures-IV and X were issued within 12 months, as such no claim could be based on these documents. Bottom of the case of OP was not knocked down by Handicapped Board of C.M.O. Solan, who had reiterated what is contained in Annexure-X vide its certificate dated 22.01.2008 (supra). In the context of this document, we may notice that evidence was closed on 30.05.2008 by both the parties without rebutting and or contesting the above extracted certificate of 2008. In our opinion, this was rightly not contested, because it is not the case of the OP, that nature of permanent disablement, as well as its extent was not upto 50%.
What was being contested before District Forum below was, that certificates Annexure-IV and X had been issued before the expiry of within 12 consecutive months, whereas those should have been issued after the expiry of this period. This plea does not hold good in the face of subsequent certificate of 22.01.2008 issued by Handicapped Board.
15. Mr. R.C. Gupta, learned counsel for the OP submitted, that all three certificates, i.e. Annexures-IV, X, as well as third one dated 22.01.2008 cannot be looked into at all, because affidavits of the doctors, who had issued these were not filed, and the admissible amount having already been paid by his client to the complainant, appeal filed by his client deserves to be allowed while dismissing that of the complainant. For the reasons to be recorded hereinafter this plea deserves to be rejected. When reference is made to the reply filed by the OP to the complaint, it is evident that correctness, legality or otherwise of Annexures-IV and X was not disputed. It may be observed in this behalf that it is not the case of the OP that permanent disability was not there. What was emphasized in reply and what was persisted with vehemence at the time of hearing of these appeals was, that these certificates were not issued after expiry of 12 consecutive months, i.e. after 03.04.2006, but were issued before expiry of this period. As such plea based on non-filing of affidavits was purely afterthought with a view to deny the legitimate claim of the complainant. Though Mr. Gupta persisted with vehemence that his client is not liable to pay anything over and above what was admissible and had been paid to the complainant.
16. We specifically called upon learned counsel for the OP as to whether the provisions of Insurance Act, 1938 and Insurance Regulatory Development Authority Act, 1999 apply to the insurance business undertaken by his client, his answer was in affirmative.
17. We may notice here that in exercise of powers vested in the Acts (supra), Insurance Regulatory and Development Authority (Protection of Policyholders Interests) Regulations, 2002 have been framed. These are statutory in nature and are meant to regulate the insurance business by the insurers, like OP in these appeals. On the basis of Regulation 3 of these Regulations, we are of the view that it was incumbent upon the person, who undertook insurance in this case, as also he was duty bound to have explained to the complainant what was beneficial for her, which was the best cover in her interest. What were exceptions, inclusions, exclusions etc. In the absence of compliance of these regulations, no benefit can derived from the submission of medical certificates Annexure-IV and X by the complainant before 03.04.2006. Though it is a different matter that in the instant case, there was evidence to suggest that this disablement continued even thereafter, without rebuttal of such evidence from the OP.
18. For taking this view, we are further of the opinion that from Annexure-II filed alongwith complaint, it is evident that vide its letter dated 30.04.2005, the OP had sent claim form for being filled up by the complainant and also to send documents as detailed in this annexure. Needful was done by her. Then vide Annexure-III she sent medical certificate, Annexure-IV on 3rd August, 2005. In these circumstances, we are of the view that it was incumbent upon the OP to have informed the complainant that she should furnish the requisite documents including certificate of Physician as envisaged under Clause-28 of Section-3 of Annexure-I. We are sure that the OP was not laying a trap, by asking the complainant to fill in the form and forward it with documents. Why the position was not explained to her while sending her claim form, by his client, Mr. Gupta had no answer.
19. No other point was urged.
20. In the light of above discussion, we are of the view that Appeal No.371/2009 filed by the OP deserves to be dismissed and Appeal No.257/2009 filed by the complainant deserves to be allowed. Ordered accordingly.
21. Since there was no dispute that if a case was made out in the terms of Annexure-I the policy, subject to which insurance was undertaken by the OP, the complainant would be entitled to compensation in terms of Table of Benefits of Table (B), and findings having been recorded by us to that effect, as such it is held that the complainant is entitled to Rs.11,25,000/- being 50% due to permanent loss of one limb, of the amount, i.e. of Rs.22,50,000/-. Since she has admitted to have received Rs.27,000/- from the OP, as such it is now held that she will be entitled to Rs.11,25,000/- - Rs.27,000/- = Rs.
10,98,000/-. Ordered accordingly. On this sum the complainant is held to be entitled to interest at rate of 9% per annum from the date of filing of complaint, i.e. 14.07.2006 till date of payment/deposit whichever is earlier, alongwith Rs.10,000/- as cost of litigation.
While allowing Appeal No.257/2009, order passed by District Forum below is modified in these terms.
22. Office is directed to place authenticated copy of this order on the file of Appeal No.371/2009.
23. All interim orders passed from to time in Appeal No.371/2009 shall stand vacated forthwith.
24. Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.
SHIMLA 28.09.2010.
( Justice Arun Kumar Goel ) (Retd.) President.
( Saroj Sharma ) Member.
(Chander Shekhar Sharma) Member.
/dinesh/