State Consumer Disputes Redressal Commission
Branch Manager, The Oriental Insurance ... vs C. Karthi ,Thanjavur. on 5 June, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER
F.A.No.126/2019
(Against the order made in C.C.No.38/2018 dated 27.08.2019 on the file of
the District Commission,Thanjavur.)
MONDAY, THE 05th DAY OF JUNE 2023
The Branch Manager,
The Oriental Insurance Company Limited,
Kamala Subramaniam Arcade, First Floor,
2851/35, Trichy Main Road, Thanjavur. Appellant/Opposite Party
-Vs-
S.Karthi,
S/o Sivanandam,
Door No.2518/154, Ponni Nagar,
Sharadha Nagar 2nd Street,
Medical College Road,
Thanjavur City and District. Respondent/Complainant
Counsel for Appellant/Opposite Party : Mr.E.Chandrasekaran,Advocate.
Counsel for Respondent/Complainant : Mr.L.Sridharan, Advocate.
This appeal coming before us for final hearing on 20.03.2023 and on
hearing the arguments of both sides and upon perusing the material records,
this Commission made the following:
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ORDER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER.
1. Aggrieved by the award passed by the District Consumer Disputes redressal Commission, Thanjavur, dated 27.08.2019 the appeal has been preferred by the opposite party/insurance company.
2. The facts The complainant insured his vehicle TN 49 BJ 0722 with the opposite party on 20.12.2016 the insurance coverage included own damages as well as Personal Accident coverage. The complainant on 11.09.2017 met with an accident and admitted in Theiva Hospital, Thanjavur on the same day, and discharged on 15.09.2017. Because of the accident his right hand wrist was fractured and plate was fixed in it. The medical expenses came to Rs.80,000/- and damage to the vehicle is Rs.5,000/- so the complainant made a claim for Rs.85,000/-. The opposite party/Insurance Company did not give any proper reply and the complainant suffered a lot of mental agony in approaching the opposite party. Finally, he sent a legal notice on 14.03.2018 which was received by the opposite party on 16.03.2018. No reply was sent subsequently by the insurance. Hence, this claim is filed alleging deficiency in service in not honoring the rightful claim and request the District Commission to direct the opposite party to pay Rs.85,000/- towards medical expenses and Rs.5000/- towards own damage claim and also Rs.1,00,000/- towards compensation for mental agony.
3. The opposite party filed their written version stating that, the complainant is not a consumer and the complaint is not maintainable. The allegations that he met with an accident and his vehicle sustained damage and he also sustained injuries are 3 all not admitted. Similarly, the allegations that the complainant made a claim to the opposite party is also not admitted. The allegations that the complainant visited the opposite party many times is also not admitted. The claim for own damage is highly excessive and the medical expenses of Rs.80,000/- is not maintainable. Hence, the complaint is liable to be dismissed.
4. The District Commission after receiving the proof affidavits and documents Ex.A1 to Ex.A18, Ex.B1 allowed the claim by directing the opposite party to pay Rs.82,500/- towards medical expenses with interest at the rate of 9% from the date of complaint till its realization.
5. Aggrieved with the above order, the opposite party has. preferred the appeal on the following:
Grounds: That, the order of the District Commission is not sustainable in law. The District Commission failed to note that the policy did not cover reimbursement of medical expenses. As per the policy condition in Section III, which is a very restricted cover and the benefits are clearly defined under the policy, which are as under:
1. Death 100% of the Sum Insured
2. Loss of two limbs or sight of two eyes Or one limb and 100% of the Sum sight of one eye Insured
3. Loss of one limb or sight of one eye 50% of the Sum Insured
4. Permanent Total Disablement other from injuries other 100% of the Sum than named above Insured 4 The personal Accident cover issued along with Motor Policy does not have a condition to reimburse or pay Medical expenses incurred by Insured/Owner/Driver arising out of an accident. Even as per the policy issued to the complainant there is no coverage for any medical reimbursement. Hence, they prayed to allow the appeal.
6. We heard both sides oral arguments and we perused both sides written arguments also. It is not disputed that the complainant insured his vehicle with the opposite party which is marked as Ex.A4. Similarly, which is also an admitted fact during the policy period the complainant met with an accident and he suffered medical expenses as well as damage to his vehicle. However, the disputed fact is as per the policy condition the complainant's entitlement to get reimbursement of medical expenses
7. Now the point for consideration is:
Whether the complainant is entitled for reimbursement of medical claims or not?
Point: It is a settled principle that every contract is to be performed as per the terms of the contract and the contract of insurance is not an exception to it. So, the contract of insurance is also covered only by its terms, and the parties are bound to perform and can enforce their rights and obligations as per the terms of the contract. In this case before alleging deficiency the complainant must establish that he made a proper claim to the opposite party. But there is no such proof is filed to the effect that he made a proper claim to the opposite party. Even the date of his claim in the Performa to the opposite party was not mentioned. However, we took note of a legal notice marked as Ex.A7 which was received by the opposite party as 5 per acknowledgement Ex.A8. The opposite failed to reply the above legal notice. In the sense they failed to reply whether they are honouring the claim or repudiating the claim in a proper way.
8. Apart from that, before the District Commission the opposite party though marked as Ex.B1 did not raise the exclusion clause in the written version. In the written version the opposite party simply stated that the claim for medical reimbursement is not maintainable. So, sufficient pleadings are lacking in this case and both sides are to be blamed for that.
9. However, it is the duty of the complainant to prove how his claim is legal,valid and sustainable in law. The policy being contractual in nature, the person claiming benefit under the policy must establish that he is entitled for compensation with reference to the terms and conditions agreed between the parties to the contract. Undoubtedly, no person is entitled to claim any benefit beyond the scope of the terms and conditions agreed between the parties. Thus, nature of policy, terms and conditions stipulated, and what was agreed upon are the factors to be ascertained preliminarily, by the Courts for the purpose of entertaining the Claim Petitions as well as to fix the liability.
10. With reference to the treatment of injuries, and reimbursement of medical expenses there must be an adjudication strictly with reference to the Personal Accident Coverage Policy. Suffering an injury is one aspect, which is though admitted, the Coverage provided under the terms and conditions of the policy is also important, so as to decide the entitlement of compensation. For instance, the policy note marked as Ex A 1 states that the compensations are payable under part 6 III, for registered owner cum driver. But in Ex A1 full terms and conditions of part III was not available. Part III Terms and conditions are marked as Ex B1.Therefore, if the claim for injuries is within the scope of the agreement, then alone, the person covered under the Personal Accident policy is entitled to get compensation for injuries or towards refund of medical expenses.
11. The main contention of the opposite party is, a claim can be made only by the owner who also be the driver of the vehicle. It is the case of the insurance company that as per the policy condition only if the owner drive the vehicle he can claim insurance That too for particular category of injuries as stated in the policy. The relevant policy condition is reproduced here under:
- PERSONAL ACCIDENT COVER FOR OWNER-DRIVER Subject otherwise to the Terms. Exceptions, Conditions and Limitations of this Policy the company undertakes to pay compensation as per the following scale for bodily injury death sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or traveling in the insured vehicle as a co-driver caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:
1. Death 100% of the Sum Insured
2. Loss of two limbs or sight of two eyes Or one limb and 100% of the Sum sight of one eye Insured
3. Loss of one limb or sight of one eye 50% of the Sum Insured
4. Permanent Total Disablement other from injuries other 100% of the Sum than named above Insured 7
12. This Commission, perused the Judgement of our National Commission reported in National Insurance Company Limited -Vs- Ramesh Gupta 2015 (3) CPR NC 290. In which it has been categorically held that the policy will be covered only if the stipulated disablement is proved such as loss of limb or loss of eye etc.,. As per the policy terms the claim of medical expenses are not covered. The above Judgement was subsequently followed in United India Insurance Co. Ltd. .vs. Sanjoy Dutta on 24 August, 2017 "On a plain reading of the provision, it is clear that compensation shall be payable only in the four cases listed in the table. There has been no averment in the complaint that the nature of injuries sustained by the complainant falls within any of the four categories enlisted in the policy. This proviso negates the basis on which the State Commission has based its decision relying on absence of any exclusion clause". The State Commission placed reliance on a decision of the Madras High Court in National Insurance Company Vs. Krishnan, CMA No. 3006 of 2012, however, facts of the quoted case are not similar to the present case. In the aforesaid case, the insured, being the owner, sustained injuries while traveling as a passenger and the question involved was whether the petitioner was entitled to maintain a claim, in the capacity of passenger, against the insurance company when he himself was the owner of the offending vehicle.
13. It is well settled that the terms of the policy has to be construed as it is and the courts are not at liberty to substitute words which were not intended by the parties. In this regard, I deem it appropriate to refer to the following judgments of the Hon'ble Supreme Court:-
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(a) In General Assurance Society Ltd. Vs.Chandmull Jain,[1966]3SCR 500, it was held as under:-
17." ...In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves."
(b) in Oriental Insurance Co. ltd. Vs. Sony Cherian II(1999 )CPJ 13 (SC ), observed as follows:-
"The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein."
(c) United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, (2004) 8 SCC 644, the Hon'ble Apex Court held as follows:-
"The terms of the policy have to be construed as it is and we cannot add or subtract something: Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. It is settled law that terms of the policy shall govern the contract between the parties, 9 they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment.
14. Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous. In a recent judgment of the Supreme Court in Industrial Promotion and Investment Corporation of Orissa Ltd. vs. New India Assurance Company Ltd. and Ors. , AIR2016 SC 3908, it was reiterated as follows:-
"It is well-settled law that there is no difference between a contract of insurance and any other contract, and that it should be construed strictly without adding or deleting anything from the terms thereof".
15. On applying the above stated principle, there is no iota of doubt that the claim of the complainant is not covered under the personal accident cover of the package policy In the light of the above Judgement we hold that the policy did not cover any medical expenses and it covers only the prescribed disability. But, without considering the National Consumer Disputes Redressal Commission orders the District Forum wrongly awarded compensation which is liable to be set aside. The District Commission failed to adjudicate the claim as per the terms of the contract. Ex.A4 itself the restriction about the personal accident coverage has been mentioned. And this Commission has to presume that entire terms and exclosure 10 clause and limitation for claiming Personal Accident were duly informed to the complainant. So, the award passed by the District Commission directing the opposite party to reimburse a claim of Rs.82,500/- towards medical expenses is not at all sustainable in law. At the same time, the claim to pay Rs.5000/- towards own damage is reasonable and legally valid. The opposite party even failed to honour the above claim and the District Commission failed to award compensation for mental agony and cost of the proceedings. Taking note of the above omissions which were not canvassed by the complainant by way of separate appeal., we inclined to modify the award by setting aside the award of the District Commission. We hereby set aside the award of Rs.82,500/- with 9% interest and modified by directing the opposite party to pay Rs.5000/- towards own damages by considering the paucity of time. We fix the above amount without cost. And we answered the points accordingly.
16. In the result,
1. The appeal is allowed in part.
2 The order passed by the Learned District Commission, Thanjavur , made in C.C.No.38/2018, dated 27.08.2019 is hereby modified.
3. The order of the District Commission award of Rs.82,500/- towards medical expenses is hereby set aside.
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4. The opposite party is directed to pay Rs.5000/- towards own damages with interest at the rate of 9% p.a. from the date of complaint till its realization to the complainant.
5. There shall be no order as to costs in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by us on this the 05th day of June 2023.
Sd/-xxxxxxxxx Sd/-xxxxxxxxxx S.KARUPPIAH, N. RAJASEKAR, JUDICIAL MEMBER. PRESIDING JUDICIAL MEMBER.