National Consumer Disputes Redressal
National Insurance Co. Ltd. vs T. Vijayalakshmi & 3 Ors. on 31 January, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4545 OF 2012 (Against the Order dated 19/07/2012 in Appeal No. 1383/2010 of the State Commission Andhra Pradesh) 1. NATIONAL INSURANCE CO. LTD. R/o 1 Level 4 Tower-II Jeevan Bharti 124 Connaught Circus NEW DELHI - 110001 ...........Petitioner(s) Versus 1. T. VIJAYALAKSHMI & 3 ORS. W/o Shaik Jhagir Prop Vanitha Beuty Parlour Railway feeders Road,Kovur NELLORE A.P 2. SKI Insurence Marketing Office Pvt Ltd., No-3A,IInd florr, Prakasam Road, T Nagar CHENNAI TAMIL NADU 3. Road Safety Club Pvt Ltd 2-A Prakashm Road, T Nagar CHENNAI TAMIL NADU 4. The Branch Manager, Sriram Chits Pvt Ltd. Stonehousepet NELLORE A.P. ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Petitioner : Mr. K. Krishna Reddy, Advocate For the Respondent : Mrs. K. Radha Rao, Advocate Dated : 31 Jan 2019 ORDER Challenge in this Revision Petition under Section 21 (b) of Consumer Protection Act, 1986 (in short "the Act") is to the order dated 19.07.2012, passed by the Andhra Pradesh State Consumer Disputes Redressal Commission (in short "the State Commission") in First Appeal No. 1383 of 2010 against Consumer Complaint No. 43 of 2007, passed by the District Consumer Disputes Redressal Forum, Nellore (in short "the District Forum").
2. The facts in brief are that the Complainant joined as a member of the second Opposite Party namely, M/s. Road Safety Club (hereinafter referred to as "the Club") and obtained 9 policies from the third Opposite Party (hereinafter referred to as "the Insurance Company) for the period from 25.02.2005 to 24.02.2006, which provides for indemnification of medical expenses to the tune of ₹25,000/- for each policy and for the three policies to accumulative extent of 75,000/-. While so, it is stated that on 19.03.2005, the Complainant sustained an injury on her left thumb, while cutting coconut, and she was treated as an inpatient in Abhilaya Hospital for a period of 15 days during which time she underwent surgery which involved insertion of steel spring into the left thumb. It was averred that the Complainant claimed an amount of ₹4,50,000/- on the ground that she is entitled to ₹75,000/- towards medical expenses of ₹87,000/- under the head of permanent disability and ₹50,000/- under each of the Insurance Policies. But the Insurance Company sent a cheque of ₹20,735/-, which the Complainant had refused to accept. The Insurance Company addressed a letter dated 22.02.2006 requesting the Complainant to submit a medical certificate showing her disability. The Complainant submitted the disability certificate issued by Dr. A. Penchalaiah. Despite repeated requests the Insurance Company failed to pay the insured sum and therefore she preferred a Complaint before the District Forum seeking the following reliefs:
"Directing the respondents to pay ₹5,25,000/- with interest at 12% p.a. from the date of accident on 19.03.2005 till date of it's payment.
To pay damages and compensation of ₹1,75,000/- for causing mental agony to the Complainant.
To pay costs.
Such other and further reliefs be granted."
3. The Club filed its Written Version stating that the Complainant is entitled to the claim amount under three Insurance Policies and that they are ready and willing to pay ₹ 20,735/- to the Complainant as the Complainant sustained temporary disablement. It is also stated that the medical certificate produced by the Complainant is not issued by any authority or any government approved Medical Board.
4. The Insurance Company filed their Written Version stating that the Complainant is insured under Group Personal Accident Master Policy issued to the Club, under which the Complainant had taken nine certificates, each covering an amount of ₹2,00,000/- for permanent total disablement with an inpatient hospitalization charges following the accident to an extent of ₹25,000/- per certificate. It was stated that the maximum liability clause under the Master Policy is clearly stipulated in the certificate of Insurance issued to the insured. The Personal Accident Insurance Cover for each individual member of the Club is limited to a maximum of eight certificates for accidental death, permanent disablement, permanent partial disablement and other reliefs amounting to ₹16,00,000/- and the limit for inpatient hospitalization expenses amounting to ₹25,000/- each, for three certificates. It was averred that the Complainant had sent bills to the tune of ₹25,904/-, out of which an eligible amount of ₹20,735/- has already been settled with the insured, that is the Club, on 13.12.2005 itself and the remaining expenses were not paid as it falls outside the policy conditions. Subsequently, the Complainant produced a medical certificate dated 11.07.2005 from Dr. A Penchalaiah of Nellore, stating that the Complainant suffered from partial permanent disability to her left thumb but he did not specify the percentage of disability. The Complainant produced a certificate dated 06.04.2006 from the same surgeon that the percentage of partial permanent disability is 15%. It was averred that the said certificate was filed along with the Complaint and was never given to the Insurance Company. It was pleaded that no explanation was given by the Complainant for having not taken the disability certificate from Dr. C. Umamaheshewar Reddy, who was the orthopedic surgeon, where the Complainant was treated. The injury occurred on 19.03.2005, whereas the disability certificate was taken on 11.07.2005. Dr. C. Umamaheshewar Reddy only stated that the Complainant underwent a cut injury of the left thumb and did not anywhere state about the disability factor, therefore, there is no negligence on behalf of the Insurance Company in not paying the balance amount.
5. The District Forum based on the evidence adduced allowed the Complaint directing the Opposite Parties to pay an amount of ₹4,62,205/- with interest @ 9% p.a. from 01.05.2006 and cost of ₹2,000/- within 30 days of communication of the order.
6. The Insurance Company preferred FA/1383/2010 and the Club preferred FA/111/2011 against the same order of CC/43/2007. The State Commission dismissed the Appeal preferred by the Insurance Company i.e. FA/1383/2010 and allowed the Appeal preferred by the Club on the ground that it was only a facilitator. The State Commission modified the order of the District Forum and fastened the liability on the Insurance Company to pay ₹4,62,205/- with interest @ 9% p.a. from 01.05.2006 together with costs of ₹2,000/-.
7. Dissatisfied with the order of the State Commission, the Insurance Company preferred this Revision Petition.
8. Learned counsel appearing for the Revision Petitioner vehemently contended that the Complainant suffered only 15% disability and as per the terms and , the Complainant is only entitled to medical expenses of ₹20,735/-; that the Complainant had taken treatment from Dr. C. Umamaheshewar Reddy, but has produced a disability certificate of Dr. A. Penchalaiah; that the Petitioner at the most can be held liable to pay ₹2,40,000/- (₹2,00,000/- X 15% X 8) towards permanent partial disablement and ₹20,735/- towards medical expenses which amount to ₹2,60,735/- and that both the fora below have erred in awarding ₹4,62,205/-
9. Learned counsel appearing for the Respondent/ Complainant vehemently contended that the Complainant was a beautician and the injury to the thumb included both the phalanges and therefore falls within the category of 25% as stipulated in Clause 3(vi) of group personal accident master policy. She also drew our attention to the medical certificate issued by Dr. C. Umamaheshewar Reddy and also the disability certificate issued by Dr. A. Penchalaiah and emphasized that though the disability was to an extent of 15% since the Complainant sustained permanent partial disablement both the fora below have given a right finding with respect to both medical expenses and the amount which the Complainant is entitled to under the policy.
10. It is an admitted fact that the Complainant had taken eight insurance certificates through the Club with the Insurance Company for a liability of ₹25,000/- in each policy for three insurance policies towards medical expenses amounting to ₹75,000/-
11. A brief perusal of the medical certificate issued by Dr. C. Umamaheshewar Reddy, orthopedic surgeon who has performed the surgery on the left thumb and on whose certificate, the counsel for the Insurance Company is relying upon clearly states as follows:
"I attended the above named assured at (Place) Abhilaya Orthamedic Hospital on 19.03.2005 and continued to attend to him at his besides from 19.03.2005 to 30.03.2005 at my place from 31.03.2005 to 31.05.2005 and that she had received the following injuries:
Cut injury (L) thumb. Cut injury of extension tendon and fudiu of paximal pholonx of (L) thumb."
12. From the aforenoted it is evident that the Complainant had a cut injury on the thumb which extended to the tendon and the paximal pholonx on the left thumb. For better understanding of the case the relevant terms and conditions of the policy are reproduced as hereunder:
"3. If such injury shall within twelve calendar months of its occurrence be the sole and direct cause of the total and/ or partial irrecoverable loss of use or of the actual loss by physical separation of the following, then the percentage of the Capital Sum Insured stated in the Schedule under Item No. 4 applicable to such insured member in the manner indicated below:
Percentage of Capital Sum Assured (%) Loss of toes All Great both phalanges Great one phalanx Other than great, if more than one toe lost each 20 05 02 01
ii) Loss of hearing Both ears 50
iii) Loss of hearing One ear 15
iv) Loss of four fingers and thumb of one hand 40
v) Loss of four fingers 35
vi) Loss of thumb Both phalanges 25 One phalanx 10
vii) Loss of index fingers Three phalanges Two phalanges One phalanx 10 08 04
viii) Loss of middle finger Three phalanges Two phalanges One phalanx 06 04 02
ix) Loss of ring finger Three phalanges Two phalanges One phalanx 05 04 02
x) Loss of little finger Three phalanges Two phalanges One phalanx 04 03 02
xi) Loss of metacarpal First and second (additional) third, fourth or fifth (additional) 03 02
xii) Any other permanent partial disablement Percentage as assessed by the doctor
4. If such injury shall be followed by an inpatient Hospitalization necessarily incurred during the period as specified in the certificate of insurance the company shall be liable to reimburse such expenses upto a maximum of ₹25,000/- per certificate."
(Emphasis supplied)
13. It is noted from the grounds of the Revision Petition that the Revision Petitioner themselves have stated that the certificate issued by Dr. A. Penchalaiah should not be relied upon as he had no authority to issue a certificate and also because it was Dr. C. Umamaheshewar Reddy, who had treated the Complainant. Be that as it may it is a quite clear from the medical certificate issued by the Orthopedic Surgeon that the Complainant had suffered loss of thumb with a deep cut involving damage to tendon and paximal pholonx and therefore we are of the considered view that she falls within the bracket of 25% of the Capital insured, which in the instant case is 25% of ₹16,00,000/- (8 X ₹2,00,000/-) is equal to ₹4,00,000. Further, the nexus between the injury and the employment skill needs to be seen. There is also a specific pleading in the Complaint that the Complainant is a beautician by profession and a loss of usage of thumb or any disability thereof affects the execution of this skill and reflects in the earning of her livelihood in the and therefore, we are of the considered view, that this aspect too additionally ought to be taken into account for treating the injury as permanent partial disability.
14. Now, we address ourselves to the medical expenses, which the Complainant is entitled to. Both the fora below have given a concurrent finding that the Complainant is entitled to ₹20,735/- under each certificate and therefore they have arrived at ₹62,605/- (₹20,735 X 3). This falls well within the limited liability of ₹25,000/- X 3 = ₹75,000/-.
15. For all the aforenoted reasons, we do not see any illegality or infirmity in the concurrent finding of both the fora below and hence this Revision Petition is dismissed.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER