State Consumer Disputes Redressal Commission
Branch Manager New India Assurance Co. ... vs Singaravelu S/O. ... on 26 February, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT F.A.NO.213/2006 (Against order in O.P.No.43/2002 on the file of the DCDRF, Nagapattinam) DATED THIS THE 26th DAY OF FEBRUARY 2010 Branch Manager New India Assurance Co. Ltd., Opp. Anna Stadium Balamore Road, Nagercoil Appellant /3rd Opposite party Vs. 1.
Singaravelu S/o. Krishnasamy Akkaraipettai Nadutheru Nagapattinam 1st Respondent/ Complainant
2. Commissioner& Director of Fisheries Department Office of the Director of Fisheries Department Teynampet, Chennai 600 006
3. Asst. Director of Fisheries Department (Marine) Office of the Assistant Director of Fisheries Department Nagapattinam 2nd Respondent/ Opposite parties 1 & 2 The 1st respondent as complainant filed a complaint before the District Forum against the appellant / 3rd opposite party and 2nd and 3rd respondents/ opposite parties 1 and 2, praying for the direction to the opposite party to pay the policy amount alongwith a sum of Rs.25000/- as compensation and cost of Rs.1000/-. The District Forum has allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.28.7.2005 in C.C No.43/2002.
This petition coming before us for hearing finally on 24.2.2010. Upon hearing the arguments of the counsel on either side, this commission made the following order:
Counsel for Appellant/ 3rd Opposite parties: M/s. M.B.Gopalan, Advocate Counsel for 1st Respondent/Complainant : Mr. K.Govi Ganesan, Advocate Counsel for 2nd and 3rd Respondents / 1st and 2nd opposite parties: Mr. K. Senthilkmar, Advocate M. THANIKACHALAM J, PRESIDENT
1. The 3rd opposite party is the appellant.
2. The 1st respondent/ complainant, who is a fisherman by profession, covered under Janatha Personal Accident Insurance Policy, met with an accident on 24.8.2001, in which, he sustained fracture, in his left hand, causing permanent disability, to the extent of 70%. Because of the disability, he is unable to continue his profession, as he did originally.
3. Pursuant to the policy, he has lodged a claim through the 2nd opposite party, which was forwarded to the 3rd opposite party, who had assured to indemnity the insured, in terms of the policy. The 3rd opposite party, instead of honouring the terms and conditions of the policy, thereby paying the amount assured therein, repudiated the same on the ground, that they are not liable to pay any amount, thereby they have caused deficiency, as well caused mental agony and suffering to the complainant, for which also they are answerable. Hence he complaint, claiming the amount as per the insurance policy, as well for the compensation of a sum of Rs.25000/-, approached the District Fora.
4. The 1st and 2nd opposite parties have supported the claim of the complainant, in the sense they have forwarded the claim application to the 3rd opposite party, thereby they have not denied the claim made by the complainant.
5. The 3rd opposite party, admitting the insurance policy and period of coverage, have contended in the written version that after scruitinising the claim of the complainant, they have noticed that the complainant had suffered only partial disablement to the extent of 70%, not suffering any permanent total disablement, that as per the policy conditions, they are answerable to the claim, if there is 100% total disability, and in this view, the repudiation will not amount to deficiency in service, thereby praying to dismiss the claim.
6. The District Forum, upon appreciation of the claim, and rival claim, came to the conclusion that there is no deficiency of any kind, on the part of the opposite parties 1 and 2, and therefore, they are not liable to answer the claim of the complainant. It is the further conclusion of the District Forum, that the 3rd opposite party alone had committed deficiency, since their repudiation to pay the assured amount, would amount to deficiency in service. Thus concluding, an order came to be passed, directing the 3rd opposite party alone, to pay a sum of Rs.15000/- with interest thereon, as well a sum of Rs.5000/- as compensation, in addition to cost of Rs.1000/-, which is under challenge.
7. Heard the learned counsel for appellant, perused the written submissions, lower court records and the order passed by the District Forum also.
8. The undisputed facts are, that the 3rd opposite party, issued a Janatha Personal Accident Insurance Policy, to the claimant/ complainant, covering the period 19.4.2001 to 18.4.2002, wherein they have agreed to pay a sum of Rs.15000/- in case, the assured met with an accident, resulting permanently, totally and absolutely disabling the insured from engaging in being occupied, with any employment, or occupation. It is also an admitted fact, that this complainant by name Singaravelu, met with an accident during the period, covered under the policy, sustained injury, viz.
fracture in left hand, for which he had also taken treatment. The medical authorities, who had given treatment, has quantified the permanent disability of the complainant, on the basis of the injury sustained by him, in the accident at 70%, and to that extent, as seen from Ex.B8, Disablement Certificate also issued by the authority concerned, stating that Singaravelu, has got a total permanent disability of 70%, as a result of Fracture both bones70%.
9. Based upon the medical certificate, and on the basis of the Janatha Personal Accident Insurance Policy, he lodged a claim through Fishey department viz.
the 2nd opposite party, which has forwarded, recommending Rs.7500/-, as seen from Ex.B9, with relevant documents also. The insurance company viz. the 3rd opposite party, analyzing the documents, as well as considering the terms and conditions of the policy, repudiated the claim on the ground that the claimant has suffered only partial disablement, whereas the policy covers only permanent total disablement, which was informed to the 2nd opposite party, who in turn informed the same to the complainant. Thus aggrieved, as said above, a case has been filed resulting acceptance, causing grievance to the 3rd opposite party.
10. The only point urged before me was that as per the terms and conditions of the policy, the insurance company is answerable, and liable to pay the sum assured, only in case of the insured, permanently, totally and absolutely disabled, and not otherwise. In support of the contention, my attention was drawn to the conditions of the policy, as well as the documents produced by the complainant, where it is specifically stated, as indicated above, that the complainant suffered only 70% of permanent, total disability.
11. It is the submission of the learned counsel for complainant/ 1st respondent, that eventhough the complainant had suffered permanent disability to the extent of 70%, as per the document, that would also come, within the meaning of the disability, contemplated under the policy, and therefore, the complainant is entitled to claim the amount of Rs.15000/- or atleast in the alternative, the complainant is entitled to 50% of the amount assured, as recommended by the 2nd opposite party, under clause c of the policy conditions. Therefore, we have to see, how the parties are to be covered, and the terms and conditions, how it acts against or favourably.
12. For better appreciation, I would extract the conditions of the policy, relevant to decide the case, and they are 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 sight of both eyes or total and irrecoverable loss of use of two hands or two feet or of one hand and one foot or for 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.
d. If such injury shall within twelve calendar months of its occurrence be the sole and direct cause of permanently totally and absolutely disabling the insured from engaging in being occupied with or giving attention to any employment or occupation of any description whatsoever.
From the above clauses, it is seen that in order to claim the assured amount, either partially or otherwise, the insured should have suffered totally and irrecoverably, loss of use of the hand or a foot, if they want to come under c, where 50% of the capital sum insured is allowable. In case if the injured or insured, wants to claim the entire sum assured, then he should have suffered or sustained, injury in the accident, which caused, permanently, totally and absolutely, disabling him from engaging in occupation. In the complaint, under clause d alone, assured amount is claimed.
13. The learned counsel for respondent/complainant, would contend that though the permanent disability suffered by the complainant is described as 70% in the medical certificate, he being a fisherman, unable to perform his duty as did originally, and in this view, it should be taken as total permanent disability, in the sense, 100% disability. On the other hand, it is the submission of the learned counsel, for insurance company, that the question of using the hand, which is permanently disabled, is not the criterion and there should be 100% disability, in the sense, there should not be any chance, for the injured, using the hand or foot as the case may, as per the terms and conditions of the policy.
14. It is the settled position of law, as ruled by the Supreme Court of India in Life Insurance Corporation of India Vs. Smt. Asha Joal & another reported in AIR 2001 SC that definition given in the policy is binding on the parties, since the policy is a contract between the parties, and both parties are bound by the terms of the contract.
This being the position, this commission has no jurisdiction, either to subtract or substitute any words to suit the convenience of the parties, and the words used in the policy as extracted above, should construed as such. In this view, if the claimant wants to claim the total sum assured, under clause d, according to the learned counsel, he should have sustained permanently, totally, and absolutely, disabling him from attending any work, for which we do not have any evidence, on the side of the complainant. On the other hand, he sustained only fracture, i.e., more or less set right, though it had caused permanent disability of 70%, not exceeding that. By this, it can be said, the complainant can use his hand to some extent, though not effectively, to perform the work as desired. Therefore, the permanent disability sustained by the complainant, certainly will not come within the meaning of permanently, totally and absolutely and if at all, it can be said partially.
15. The learned counsel for the insurance company also drew my attention, in support of his contention, the two decisions of the National Commission.
1. LIC of India Vs. Ramesh Chandra, reported in II (1997) CPJ 45 (NC)
2. Ajay Kumar Vs. LIC of India, reported in I (2007) CPJ 230 (NC) In the first case, for the claimant therein, right hand was amputated, therefore the claimant lodged a claim as if he was entitled to receive the sum assured, which was accepted by the District Forum, confirmed by the State Commission, then challenged before the National Commission. The Honble National Commission, considering the terms and conditions of the policy, where total and permanent disability has been stated, has come to the conclusion, as seen from para 5 of the judgement, that the case of the complainant is not of the amputation of both hands, at or above the wrist, or of the feet, at or above the ankles, whereas the case of the complainant was amputation of one hand at or above the wrist, which cannot be independently deem to be a disability, entitling to claim the assured amount. Thus concluding, the order of the District Fora and State Commission were upset, which principle can be extended to the case on hand.
16. In the 2nd case also, disability was tested, with reference to the words, permanent, total disability, as available under Clause 3 of the policy.
In the case involved in the above decision, it appears the claimant therein sustained injuries, causing disability to the extent of 81%, which was classified as partial. While concluding, it is said from any stretch of imagination this cannot be construed as permanent/total (100%) disability. This being the position, in view of the admitted position that the complainant had suffered only 70% of the disability, though it is permanent in nature, it will not certainly disable him from employment or occupation, and therefore he cannot claim the entire sum assured. No other contra decision was brought to my notice to consider otherwise.
17. For the alternative submission also, viz. that the complainant can be given 50% of the capital sum assured as available in clause C, also I am unable to find substantial evidence, acceptable in nature. To come under this clause, and claim 50% of the capital sum assured, it should be established here also the total and irrecoverable loss of use of an hand or foot, which is absent. Since the complainant can use his hand to some extent, though he had undergone surgery and fracture had caused permanent disability. This being the position, under clause C also, I am unable to extend any benefits to the complainant.
18. The Government though thought fit, under the Janata Personal Accident Insurance Policy, some benefits should be conferred upon the fisherman, taking into consideration their sufferings, should not have allowed the insurance company to impose such as onerous condition, and they should have amended or modified the conditions in such a way, even if it is permanent disability, partially, not totally, the injured-insured are entitled to the sum assured, atleast proportionally. If this kind of conditions were made available, the complainant would have got the benefit of some amount, according to the percentage of the disability, which is also not made available.
19. The District Forum, without considering the clauses of the agreement, terms and conditions, which are binding upon the parties, taking into consideration the disability alone, which disability would not come within the meaning of the above said conditions, ordered, or directed the 3rd opposite party to pay the sum assured as well as compensation, which cannot be accepted for the reasons stated above.
20. In the result, the appeal is allowed, order of the District Forum in CC No.43/2002 dt.28.7.2005 is set aside, and the complaint is dismissed, but in the facts and circumstances of the case, there will be no order as to cost, throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
M. THANIKACHALAM PRESIDENT INDEX : YES / NO Rsh/d/mtj-SMB/Insurance