State Consumer Disputes Redressal Commission
M. Narayana vs New India Assurance Company Ltd. on 22 March, 2011
BEFORE THE A BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. F.A. 1113/2008 against C.C. 155/2007, Dist. Forum, Kurnool. Between: M. Narayana s/o. M. Krishna Murthy R/o. 4-89, Allur Road Nandikotkur. *** Appellant/ Complainant. And 1) The Divisional Manager New India Assurance Company Ltd. HDCP Complex R.S. Road, Kurnool. 2) The General Secretary Kurnool Dist. Motor Workers Union (CITU) Behind Durga Lodge N.H-7, Kurnool. *** Respondents/ Opposite Parties Counsel for the Appellant: M/s. B. Anjayneyulu Counsel for the Resp: M/s. KNV Radhra Krishna (R1) CORAM: HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT SRI SYED ABDULLAH, MEMBER
& SRI R. L. NARASIMHA RAO, MEMBER TUESDAY, THIS THE TWENTY SECOND DAY OF MARCH TWO THOUSAND ELEVEN Oral Order: (Per Honble Justice D. Appa Rao, President) ***
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that he had taken Group Janata Personal Accident Policy (JPA) from R1 insurance company through its agent Kurnool District Motor Workers Union R2 for a sum of Rs. 1 lakh covering the period from 16.4.2001 to 15.4.2006. His name was mentioned at S.No. 34 in the policy. While so on 16.3.2003 while he was driving the lorry at Machavaram village accident took place resulting in grievous injuries on his person. The said fact was intimated to the police which in turn registered as a case in Crime No. 30/2003 u/s 337 IPC. R2 informed the said fact to R1. He was shifted to Govt. Hospital, Mahaboobnagar and there after to Govt.
Hospital, Kurnool where his right leg up to knee was amputated resulting permanent disability. He also suffered fracture to his right leg and hand. He took treatment in the Govt. Hospital for four months as an in-patient and was discharged on 4.7.2003. Repeatedly he joined in the hospital for several times. Whenever he was going to R1 it was promising to settle the claim but did not do so. For the first time on 9.6.2006 it issued a letter to him to submit the reasons for delay along with hospital records. On that he sent all the records by registered post. He filed a petition before the Dist. Legal Services Authority however R1 did not respond. Therefore he filed the complaint claiming Rs. 1 lakh covered under the policy with interest @ 12% p.a., together with compensation of Rs. 20,000/- for mental agony and costs.
3) The insurance company R1 resisted the case. While admitting issuance of policy it denied that the complainant had sustained injuries in the accident that took place on 6.3.2003. As per the disability certificate the complainant had suffered only 50% disability and therefore he was entitled to that extent and not the entire amount. The fact that he sustained injuries in an accident and the same was reported to the police and that he took treatment as in-patient and that he approached it several times is not true. Despite letters dt. 10.3.2006 and 8.5.2006, and when the complainant was informed to furnish relevant documents, he did not do so. In fact the claim should be lodged within 30 days from the date of accident. He did not explain the delay of three years. He was not entitled to any amount much less any compensation, and therefore it prayed for dismissal of the complaint with costs.
4) R2 did not choose to contest and therefore he was set-exparte.
5) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A10 marked while the insurance company filed the affidavit evidence of its Divisional Manager and got Ex. B1 copy of policy with terms and conditions.
6) The Dist. Forum after considering the evidence placed on record opined that the complainant did not intimate the accident within a month as contemplated and was informed three years there after and therefore the insurance company was justified in not settling the claim, accordingly it dismissed the complaint with costs.
7) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts or law in correct perspective. It ought to have seen that immediately after the accident he was remained as in-patient in the Govt. Hospital, and as such he could not have intimated. At any rate the police registered a case in Crime No. 30/2003 u/s 337 IPC. Even a charge sheet was filed disclosing that he was injured and therefore the insurance company ought to taken cognizance of these facts and settled the claim.
8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9) It is an undisputed fact that the complainant was a driver involved in an accident sustained fracture of hand and legs evidenced from FIR Ex. A2. The police registered as a case in Crime No. 30/2003 u/s 337 IPC on a report given by the cleaner of the lorry bearing No. UP-70H-9558. The police lodged charge sheet against the very complainant before the Judicial Magistrate of First Class, Jadcherla vide Ex. A1 wherein there was a categorical mention that he had crushed injury, fracture of lower hand. Amputation was done on 12.3.2003 for the accident that took place on 6.3.2003. He was admitted in the hospital on 7.3.2003 and was discharged on 3.7.2003. Four months there after, according to the complainant he has informed R2 through whom policy was issued evidenced under Ex. B1 terms and conditions of the policy. It is a group insurance policy wherein the complainants name was mentioned at S.No. 34. The Dist. Medical Board, Kurnool issued disability certificate Ex. A9 mentioning that the disability was 50% in view of amputation. The averment that he informed to its agent R2 in view of his confinement to the hospital due to amputation of his leg was not disputed by R2. The fact that originally he was joined in Govt. Hospital, Mahaboobnagar, and later shifted to Govt. Hospital, Kurnool was not disputed. All through he was in the hospital. It may be stated herein that since R2 did not take any action he intimated the said fact by his letters Exs. A4, A5 which were received by the insurance company. Evidently the claim of the complainant was not repudiated. By letter Ex. A6 dt. 9.6.2006 the insurance company while acknowledging receipt of claim intimation as well as related papers observed that there was delay in giving intimation. On that they sought clarification for delay. They also requested to submit the hospital record in connection with treatment. The complainant while responding to the said notice furnished documents evidenced under Ex. A7 & A8 along with enclosures. It is also not in dispute that the complainant approached the Dist. Legal Services Authority, Kurnool but the insurance company did not respond, and therefore he has chosen to file the complaint.
10) The insurance company despite the fact that public record viz., FIR (Ex. A2) , medical record maintained by the Government Hospital (Ex A3) together with disability certificate issued by the Dist. Medical Board was submitted, it did not respond. We are constrained to observe that even for every small claims, the insurance companies are adept in appointing surveyors to find out the truth or otherwise of the facts mentioned by the claimants. Despite the fact that the complainant had filed irrefutable documentary evidence from the authorities it did not repudiate. The contention was that there was delay. The insurance company did not choose to find out whether such intimation was received by their agent R2 or not. It did not address any letter to him. The fact that the leg of the complainant was amputated, and being poor, a driver by profession he could not have any assistance to process these claims. What all he could do is to intimate the agent, which he religiously has done. Assuming without admitting that there was delay in intimating the insurance company nothing would preclude it from investigating into the claim and resolve the matter.
11) The learned counsel for the insurance company contended that as per conditions of the policy the insured had to give written intimation within one month from the date of accident. Condition No.1 reads as under :
upon happening of any event which may give rise to claim under the policy the insured shall forthwith give notice thereof to the company. Unless reasonable cause is shown by the insured within one calendar month after the event which may give rise to a claim under the policy, give written notice to the company with full particulars of the claim.
The complainant has furnished the record explaining the cause for delay the insurance company did not respond.
12) In a somewhat similar case the State Commission in General Insurance Company Vs. Abhijit Saini reported in II (2008) CPJ 483 held To expect a person to immediately first rush to Insurance Company to inform about the accident when his vehicle meets a very serious accident or causing death is too much and is beyond the prudence of common man. In such a situation, the Insurance Company should take a decision in respect of any event or in respect of any eventuality keeping in view the response by a reasonable and prudent man. Every decision taken by the service provider has to be tested on the anvil of the terms of the contract unless the occurrence or the information given by the insurer is found to be afflicted with a mala fide or falsehood, the claim should be accepted.
Even otherwise the stipulation of one month was held not mandatory. It was held:
In our view the provisions of delay in informing the Insurance Company or lodging the report with the police are of little significance as these are of directory nature and not of the mandatory nature. What is relevant is whether any such accident or occurrence has taken place or not and whether the insured has played fraud or given wrong information to take undue benefit against the insurance policy. Once the report is lodged with the police may be in any form, the Insurance Company is barred from appointing any Investigator to investigate into the fact whether the theft or accident has taken place or not. Under the Code of Criminal Procedure only the police has the authority to investigate into the offence registered under the IPC and nobody else. If the Insurance Companies are allowed to appoint Investigator for going into the truthfulness of the occurrence then there will be two parallel investigations, one by the statutory authority and another by an authority which is incompetent to investigate into a criminal offence. We have also held that Insurance Companies have no option than to accept the report of the police with regard to accident or theft of a vehicle or loss of vehicle by way of any other incident or event.
13) When the complainant had informed that he has intimated it to the agent R2 the omission or commission of such agent would undoubtedly bind the insurance company. It is common knowledge that these service providers avail services of agents and sub-agents by employing them in almost every city so as to save their administrative expenses. Therefore their employment bind the insurance company for the fault of their agents. R2 to whom intimation was given who in turn had to give it to R1. The insurance company cannot now turn round and contend that the complainant was guility in not intimating the incident.
14) At the cost of repetition, we may state that the insurance company never repudiated the claim. What all it stated was that entire record was not submitted to it.
The fact that Exs. A7 & A8 show that entire record that was submitted was sufficient to settle the claim. In fact the very insurance company in its counter at para-3 stated This O.P. submits that the complainant is suffered 50% permanent disability as this O.P is liable to pay only as per the norms of the policy terms and conditions but not the entire assured amount. Here as per the disability certificate filed by the complainant is suffered permanent disability only to an extent of 50%. So he will be entitled only to an extent of 50% if he proves the disability of 50% beyond all reasonable doubt and other relevant information as per the policy terms and conditions. It is in tune with clause-c of the terms and conditions of the policy.
15) We are of the opinion that the insurance company is liable to pay 50% of the amount for which it has agreed to pay. Therefore the complainant was entitled to 50% viz., Rs. 50,000/- covered under the policy. However, in view of delay for whatever reason we do not wish to grant any compensation.
16) In the result the appeal is allowed setting aside the order of the Dist. Forum.
Consequently the complaint is allowed in part directing the insurance company to pay Rs. 50,000/- with interest @ 9% p.a., from the date of complaint till the date of realization together with costs of Rs. 2,000/-. Time for compliance four weeks.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER
3) ________________________________ MEMBER Dt. 22.
03. 2011.
*pnr UP LOAD O.K.