State Consumer Disputes Redressal Commission
New India Assurance Company Ltd., vs Jatinder Kumar Sharma on 25 February, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.241 of 2005
Date of institution : 14.2.2005
Date of decision : 25.2.2011
NEW INDIA ASSURANCE COMPANY LTD., HOSHIARPUR THROUGH ITS
ADMINISTRATIVE OFFICER, NEW INDIA ASSURANCE COMPANY
LIMITED, REGIONAL OFFICE, SCO NO.36-37, SECTOR 17-A,
CHANDIGARH
.......Appellants
Versus
JATINDER KUMAR SHARMA SON OF SH. LAL CHAND SHARMA,
RESIDENT OF HOUSE NO.63/123, ASLAMABAD, HOSHIARPUR.
......Respondent
First Appeal against the order dated 27.10.2004 of
the District Consumer Disputes Redressal Forum,
Hoshiarpur.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Present :-
For the appellants : Shri Vinod Mahendru, Advocate. For the respondent : Ms. Jyoti Sareen, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
The respondent was insured with the appellants under the Janta Personal Accident insurance policy No.004/127 for the period from 27.7.1996 to 26.7.2006 for an amount of Rs.4,00,000/-. The respondent had suffered the head injury in a scooter accident on 11.12.1999. He was admitted in Patel Hospital, Jalandhar for medical treatment on 18.12.1999. Thereafter he was admitted in Arora Neuro Centre, Ludhiana on 21.12.1999 as he had suffered a paralysis on left side due to head injury. As a result the left foot, left hand and the left eye of the respondent got paralysed. The condition of the respondent was not improved even in Arora Neuro Centre, Ludhiana. Then the respondent was shifted to Christian Medical College and Hospital, Ludhiana (in short "the CMC") fromwhere he was referred to Indraprashtha Apollo Hospital, New Delhi. Dr. K.K. Mukerjee of the PGI, First Appeal No.241 of 2005. 2 Chandigarh was also consulted but the condition of the respondent did not improve. He was still suffering from paralysis on left side and a continuous head ache.
2. The respondent lodged the insurance claim. It was repudiated by the appellants vide letter dated 17.9.2002 on the ground that the respondent was suffering from hypertension which led to the ailment of the respondent. Hence the complaint.
3. The appellants filed the written reply. It was admitted that the respondent had taken the Janta Personal Accident Insurance policy for an amount of Rs.4,00,000/- and it was valid for the period from 27.7.1996 to 26.7.2006. It was also admitted that the insurance claim lodged by the respondent was repudiated by the appellants.
4. It was further pleaded that the story of the respondent that he had met with an accident on 11.12.1999 was false. No FIR was got registered by the respondent for this alleged accident nor he was hospitalized immediately after the accident. He was allegedly hospitalized on 18.12.1999 in Patel Hospital, Jalandhar and thereafter in Arora Neuro Centre, Ludhiana and CMC, Ludhiana. In fact the respondent was hospitalized for the treatment of hypertension. Roadside accident was a concocted version to get the amount of compensation fraudulently. Hence repudiation of the insurance claim was legal and valid. Dismissal of the complaint was prayed.
5. The respondent filed his affidavit as Ex.C-1. He also proved documents Ex.C-2 to Ex.C-6.
6. On the other hand, the appellants filed the affidavit of C.S. Grover, Divisional Manager as Ex.R-1. The appellants also proved documents Ex.R-2 to Ex. R-6. The appellants also filed the affidavit of Varinder Agnihotri as Ex.R-7. They also proved documents Ex.R-8 to Ex.R-10.
7. Learned District Forum accepted the complaint with compensation amount of Rs.4,000/- vide impugned order dated 27.10.2004. The appellants were First Appeal No.241 of 2005. 3 directed to make the payment of Rs.4,00,000/- to the respondent with interest at the rate of 12% per annum.
8. Hence the appeal.
9. The submission of the learned counsel for the appellants was that the respondent had suffered disability because of hypertension and not because of any accident. Moreover the claim was payable only if the respondent had suffered 100% disability. Reliance was placed on the judgment of the Hon'ble Haryana State Consumer Disputes Redressal Commission, Panchkula reported as "National Insurance Company Limited v. M/s Saraswati Udyog" 1998(1) CLT 140 in which it was held that in the absence of registration of the First Information Report with the police the insurance claim can be repudiated. Reliance was also placed on the judgment of the Hon'ble National Commission reported as "AJAY KUMAR v. LIFE INSURANCE CORPORATION OF INDIA" I(2007) CPJ 230 (NC) in which it was held that where the disability was upto 81% the insurance claim was not payable. Reliance was also placed on the judgment of the Hon'ble National Commission dated 15.4.2010 passed in Revision Petition No.580 of 2006 (Oriental Insurance Company Limited v. M/s Pragathi Constructions).
10. On the other hand, the submission of the learned counsel for the respondent was that there was no merit in the present appeal and the same be dismissed.
11. Record has been perused. Submissions have been considered.
12. It is not denied by the appellants that the respondent had taken the insurance policy No.004/127 dated 27.7.1996 for an amount of Rs.4,00,000/- under the Janta Personal Accident Policy. It was valid for the period from 27.7.1996 to 26.7.2006. The insurance policy has also been proved by the appellants as Ex.R-1. The terms and conditions of the insurance policy are a part of Ex.R-1. As per the terms and conditions the insurance claim was payable as under:-
"1. If at any time during the currency of this Policy, the insured person shall sustain any bodily injury resulting solely and directly from accident First Appeal No.241 of 2005. 4 caused by external violent and visible means, then the Company shall pay to the insured or his legal personal representative(s), as the case may be, the sum or sums hereinafter set, forth, that is to say:
(a) If such injury shall within Twelve calendar months of its occurrence be the sole and direct cause of the death of the Insured, the Capital Sum Insured stated in the Schedule hereto.
(b) If such injury shall within Twelve calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of
(i) the sight of both eyes, or of the actual loss by physical separation of two entire hands or two entire feet, or of one entire hand and one entire foot, or of such loss of sight of one eye and such loss of one entire hand or one entire foot, the Capital Sum Insured stated in the schedule hereto.
(ii) Use of two hands or two feet, or of one hand or one foot, or of such loss of sight of one eye and such loss of use of one hand or one foot, the Capital Sum Insured stated in the Schedule hereto.
(c) If such injury shall within twelve calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of
(i) the sight of one eye, or of the actual loss by physical separation of one entire hand or of one entire foot, fifty per cent (50%) of the Capital Sum Insured stated in the Schedule hereto.
(ii) Total and irrecoverable loss of use of a hand or a foot without physical separation, fifty per cent (50%) of the Capital Sum Insured stated in the Scheduled hereto."
13. So far as the disability of the respondent is concerned, he has furnished the disability certificate dated 6.12.2001 (Ex.C-6). It is signed by the Medical Officer, Civil Hospital, Hoshiarpur and by the Medical Specialist of District First Appeal No.241 of 2005. 5 Immunization Officer, Hoshiarpur. As per this certificate, Jatinder Kumar Sharma aged 41 years respondent had suffered disability to the extent of 70%.
14. The respondent has also proved the discharge summary of Arora Neuro Centre, Ludhiana as Ex.C-2 according to which Jatinder Kumar Sharma respondent was admitted in this hospital on 21.12.1999 and he was discharged on 10.1.2000 and he was attended by Dr. O.P. Arora, D.M., Neurology. It was further mentioned as final diagnosis as under:-
"FINAL DIAGNOSIS:
Left sided occlusive stroke Multiple cerebral infarcts Complete occlusion of Rt. ICA Adv. Endartectomy Refd. To Dr. Banerjee-New Delhi."
15. In this document the history of the respondent is mentioned as he was a case of k/c/o Ht for six months presented with history of right side accident on 11.12.1999 followed by headache since the accident. The respondent met with another roadside accident on 13.12.1999 followed by continuous headache.
16. The respondent has also placed on the file another certificate issued by the Neurosurgery Department of CMC, Ludhiana as Ex.C-3 in which again it is mentioned that the respondent had suffered the road traffic accident on 11.12.1999 when his scooter smashed into a cycle. At that time there was no history suggestive of seizure loss. There was another accident three days later on 14.12.2009. Then medical treatment was also mentioned.
17. The respondent has also proved patient's copy issued by the CMC, Ludhiana dated 20.1.2000 as Ex.C4 in which the physical findings were given as under:-
"PHYSICAL FINDINGS:-Patient has (L) sided hemiplegia. PEARL BP-120/80 Hg, Pulse-90/mt, Temp.-Afebrile. CNS:- Conscious, Oriented First Appeal No.241 of 2005. 6 Higher Functions-(N) GCS-E4 M6 V5, Chest-Clear CVS:- S1 S2 (N) No Murmur."
18. The respondent has also proved the out patient ticket issued by the PGI, Chandigarh as Ex.C-5 in which the roadside accidents of 11.12.1999 and of 15.12.1999 are mentioned.
19. The submission of the learned counsel for the appellants was that no accident after 11.12.1999 till the date of admission in Patel Hospital, Jalandhar on 18.12.1999 was pleaded in the complaint. Moreover in the documents placed on file by the respondent the date of subsequent accident is mentioned as 13.12.1999. Somewhere it is mentioned as 14.12.1999 and somewhere it is mentioned as 15.12.1999. The variation in dates clearly proves that it is imaginary and not real.
20. This submission has been considered. There is no doubt that the accident subsequent to 11.12.1999 is not pleaded in the complaint and different dates are given in different documents but the fact remains that the accident of 11.12.1999 is pleaded and proved.
21. Therefore it is held that the respondent had met with a roadside accident on 11.12.1999. The variation in date of subsequent accident as recorded in different documents does not falsify the version of the respondent.
22. Even if the respondent had not got FIR or DDR registered for the roadside accidents, still it cannot be held that he had not met with the accidents when it is clearly mentioned in the medical history of the respondent. Sometimes when the accident takes place the man suffers the internal mental jerk which shakes the whole brain, although, on the face of it there was no bleeding and no wound and no swelling. It is only the sufferer who knows or the doctor who treats the patient.
23. The version of the appellants that the ailment of the respondent was consequential to his hypertension is totally misconceived. First Appeal No.241 of 2005. 7
24. So far as the judgments relied upon by the learned counsel for the appellants are concerned, those are passed on different facts which are not identical to the facts of the present case. The settled law is that even a small variation of the facts of two cases, different views follow.
25. It was held by the Hon'ble Supreme Court in the judgment reported as "BIHAR SCHOOL EXAMINATION BOARD vs. SURESH PRASAD SINHA"
IV (2009) CPJ 34 (SC) as under:-
"14. The Courts should guard against the danger of mechanical application of an observation without ascertaining the context in which it was made. In C.I.T. v. Sun Engg. Works (P) Ltd., 1992 (4) SCC 363 (vide para 39) this Court observed:
"It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be complete 'law' declared by this Court. The judgment must be read as a whole and the observation from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings."First Appeal No.241 of 2005. 8
26. It was also approvingly quoted by the Hon'ble Supreme Court in Suresh Parsad Sinha's case (supra) as under:-
"A decision is a precedent on its own facts.
Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi.
According to the well-settled theory of precedents, every decision contains three basic postulates, (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent."
27. Their Lordships of the Hon'ble Supreme Court also approvingly quoted in Suresh Parsad Sinha's case (supra) as under:- First Appeal No.241 of 2005. 9
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases. One should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
28. After discussing the whole law, Their Lordships of the Hon'ble Supreme Court were further pleased to quote approvingly in Suresh Parsad Sinha's case (supra) as under:-
"It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
29. It is, therefore, held that the judgments relied upon by the learned counsel for the appellants have different facts and have no bearing to the facts of the present case.
30. So far as the judgment in M/s Saraswati Udyog's case (supra) relied upon by the learned counsel for the appellants is concerned, that related to the loss of bales for which no FIR was got registered by the claimants. The nature of claim was different in that case so also the terms and conditions of the insurance policy. Therefore that judgment is not applicable to the facts of the present case.
31. So far as Ajay Kumar's case (supra) is concerned, the facts of that case were also different so also the terms and conditions of the insurance policy. Hon'ble National Commission had reproduced the terms and conditions of the insurance policy in Ajay Kumar's case (supra).
First Appeal No.241 of 2005. 10
32. In the present case, the terms and conditions under the Janta Personal Accident Insurance Policy have been reproduced above and the insurance claim is payable in terms of those terms and conditions of the insurance policy.
33. So far as the judgment of the Hon'ble National Commission in M/s Pragathi Constructions' case (supra) is concerned, that judgment related to the extensive damage in the insured vehicle. Therefore there is a lot of different while assessing the damage to the vehicle and while assessing the disability of an insured person.
34. The next submission of the learned counsel for the appellants was that the learned District Forum vide impugned order dated 27.10.2004 has directed the appellants to pay the insurance claim of Rs.4,00,000/- whereas the insurance claim can be paid in accordance with the terms and conditions of the insurance policy which have been reproduced above. That part of the impugned judgment dated 27.10.2004 deserves to be modified and the appellants are directed to pay the insurance claim keeping in view the disability of the respondent Ex.C-6 and the terms and conditions reproduced above.
35. This submission has been considered.
36. In the present case although there is no separation of hand or foot or any other part of the body of the respondent but he has suffered paralysis of left eye, left hand, left foot i.e. of left part of the body.
37. Since the disability of the respondent was 70%, therefore, on the basis of a simple formula, he is held entitled to the insurance claim to the extent of 70%. The policy was taken for an amount of Rs.4,00,000/-. Therefore the respondent is entitled to 70% of Rs.4,00,000/- equal to Rs.2,80,000/- plus proportionate benefits permissible if any.
38. It was further submitted by the learned counsel for the appellants that the rate of interest awarded by the learned District Forum at the rate of 12% per annum is excessive.
First Appeal No.241 of 2005. 11
39. We find merit in it. The rate of interest is reduced from 12% per annum to 9% per annum.
40. It was further submitted by the learned counsel for the appellants that the learned District Forum has awarded interest and the compensation separately. Hence it was prayed that the amount of compensation be set aside.
41. This amount of compensation of Rs.4,000/- is now termed as the costs of litigation in the District Forum.
42. Keeping in view the discussion held above, this appeal is partly accepted and the impugned order dated 27.10.2004 is modified to the extent stated above.
43. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 14.2.2005. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
44. The interest on the amount of Rs.25,000/- shall stop running with effect from the date the appellants had deposited the same in this Commission. Interest on this amount of Rs.25,000/- shall be what has accrued on this amount when it remained deposited by this Commission in the Bank.
45. Remaining amount shall be paid by the appellants to the respondent.
46. The arguments in this case were heard on 14.2.2011 and the order was reserved. Now, the order be communicated to the parties.
47. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL) PRESIDENT (MRS. AMARPREET SHARMA) MEMBER February 25 , 2011 Bansal First Appeal No.241 of 2005. 12