National Consumer Disputes Redressal
Bharat S. Shah & Anr. vs National Insurance Co. Ltd. on 7 June, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3837 OF 2013 (Against the Order dated 18/06/2013 in Appeal No. 384/2010 of the State Commission Gujarat) 1. BHARAT S. SHAH & ANR. R/O 7-D,HAMILTON ROAD, MAPEL SHADE, THROUGH SHRI BHASKAR BHUTT, POWER OF ATTORNEY HOLDER OF THE PETITIONERS NEW JERSEY -08052 U.S.A 2. SONALI B.SHAH, R/O 7-D,HAMILTON ROAD, MAPEL SHADE, THROUGH SHRI BHASKAR BHUTT, POWER OF ATTORNEY HOLDER OF THE PETITIONERS NEW JERSEY -08052 U.S.A ...........Petitioner(s) Versus 1. NATIONAL INSURANCE CO. LTD. THROUGH DIVISION OFFICE AT HASUBHAI CHAMBERS NEAR TOWN HALL, ELLISBRIDGE AHMEDABAD GUJARAT ...........Respondent(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
FOR THE PETITIONER : MR. MAYUR R. SHAH, ADVOCATE WITH
MS. N. CHOUDHARY, ADVOCATE FOR THE RESPONDENT : MR. YOGESH MALHOTRA, ADVOCATE WITH
MR. SUSHANT KISHORE, ADVOCATE
Dated : 07 June 2024 ORDER
1. The present Revision Petition (RP) has been filed by the Petitioners against Respondent as detailed above, under section 21(b) of Consumer Protection Act, 1986, against the order dated 18.06.2013 of the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the 'State Commission'), in First Appeal (FA) No. 384 of 2010 in which order dated 15.02.2010 of District Consumer Disputes Redressal Forum, Ahmedabad (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 285/2006 was challenged, inter alia praying for setting aside the impugned order dated 18.06.2013 passed by the State Commission.
2. While the Revision Petitioners (hereinafter also referred to as Complainants) were Respondents before the State Commission and Complainants before the District Forum and the Respondent (hereinafter also referred to as Opposite Party (OP) was Appellant before the State Commission in FA/384/2010 and OP before the District Forum in Complaint No. 285/2006.
3. Notice was issued to the Respondent on 18.11.2013. Parties filed Written Arguments in August 2017 and additional submissions filed on 13.03.2024 (Petitioners) and 07.02.2018 (Respondent) respectively. Delay in filing the Revision Petition was condoned.
4. Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that: -
On 15.10.1998, the Petitioners had purchased Janta Personal Accident Policy from the Insurance Company for a period of 15 years from October, 1998 to October, 2013. The sum insured was Rs.5 lakhs. Under the policy, in case of accidental death, the insured is entitled for 100% insured value and in case of loss of one limb or one eye, the insured is entitled for 50% of the sum insured. In March, 2003, the Petitioner had also purchased second policy from the same Insurance Company for a sum insured Rs.5,00,000/- from March 2003 to March 2004. Under the policy, over and above the benefits mentioned in the first policy, the insured was also entitled for temporary disability benefit @1% of the sum insured i.e. compensation of Rs.5,000/- per week upto maximum 104 weeks. During 2003 the Petitioner along with her husband migrated to USA in the State of Jew Jersey, where the Petitioner was employed at the Burger King Outlet in New Jersey itself. On 07.07.2003, the Petitioner received massive injury on her left hand, as a result she was totally rendered unemployed by Burger King Outlet. The employer of Petitioner had taken care of the Petitioner by offering good medical treatment in New Jersey, USA itself. The Petitioner underwent prolonged treatment at Nova Care Hospital. The injured left hand rendered with no use. On 08.01.2004, Nova Care Hospital issued a certificate in favour of the Petitioner, wherein it was mentioned no use of left arm. Under the circumstances, the petitioner had lodged a claim before the competent authority at Penncilvannia, USA and the Petitioner was offered and paid $60,000 under the Workmen Compensation Act of Penncivannia, USA, considering 100% disability or complete no use of left arm. Along with this, the Petitioner was also awarded monthly compensation of $90 for 37 years, which makes it clear that the Petitioner'' left arm was totally rendered disabled for employment as well as for normal life. The Petitioner had also intimated the Indian Insurance Company, intimating the injury caused on her left arm and also intimated about the economic loss caused to the Petitioner under the policies. While intimating the Insurance Company, the Petitioner had also offered the Insurance Company to visit India for physical examination of herself by doctors of the Insurance Company. The Insurance Company neither sent any claim nor asked the petitioner to visit India for physical examination. The Insurance Company paid Rs.25,000/- on account of temporary disablement and later on also tendered to pay Rs.5,000/- as full ad final settlement, the petitioner had refused to accept the same as full and final settlement amount, but claimed compensation for 56 weeks initially, then later on claimed for 96 weeks at Rs.5,000/- per week due to further treatment. Additional amount for medical expenses @25% of weekly compensation or actual whichever is less. On 13.09.2005, due to no response by the Insurance Company, the Petitioner issued a notice through her Advocate claiming loss under the policies. The Insurance Company replied to the Petitioner's notice and refused the claim as raised. Hence, the Petitioner filed complaint before the District Forum.
5. Vide Order dated 15.02.2010, in the CC 285/2006, the District Forum has allowed the complaint.
6. Aggrieved by the said Order dated 15.02.2010 of District Forum, Opposite Party/Insurance Company appealed in State Commission and the State Commission vide order dated 18.06.2013 in FA No. 384/2010 has allowed the Appeal and set aside the order passed by the District Forum.
7. Petitioners have challenged the said Order dated 18.06.2013 of the State Commission mainly alia on following grounds:
The State Commission has committed a serious error of jurisdiction by not exercising jurisdiction though vested in it as Appellate Court. The State Commission ought to have considered that as an Appellate Court, it is bound to look into the entire evidence, all factual and legal aspects of the matter.
The State Commission has committed an error in holding that foreign judgment is not binding on Indian Courts, ignoring the express provisions of Section 13 of Civil Procedure Code, which clearly provides that foreign judgments and decrees are binding on Indian Courts, may be in the present case, it is confined to prove fact i.e. one limb is useless.The State Commissionought to have considered that factum of disability or disablement of a particular limb remains the same whether it is in USA or any other country.The limb which is rendered useless in USA cannot get functional in India.So, once there is award by USA Court, relying upon the American doctor's certificate that one hand is useless, then such a finding of fact is binding to the Indian Court also, more particularly when it is not disputed. The State Commission has erred in holding that the petitioner failed to lead evidence by doctor quantifying the percentage of disability so as to award damages.The submission of the Insurance Company was that even if there is 100% disability, there cannot be a claim for 100% damage.But, as per table prescribed under the Indian Law, one has to assess the damages as per the table.In the present case, for loss of a limb, what claim can be awarded that is already contemplated under the policy document i.e. 50% of the sum insured in case of loss of one limb or loss of one eye.Under the circumstances, there is no question of establishing percentage of disablement like in motor accident cases.
The State Commission ought to have considered that in case of conflict of opinion of two doctors, the opinion of the doctor who actually physically examined the injured must be preferred to the expert opinion of the doctor who gave his opinion only on the basis of injury report.The Insurance panel doctor had examined the papers submitted by the Petitioner and did not avail the opportunity to examine the petitioner physically, though it was offered.Consequently, the Petitioner is entitled to claim benefits under table -1 clause 3 i.e. loss of one eye or one limb 50% of the capital sum insured i.e. Rs.2,50,000/-.As the disability was confirmed after 104 weeks, the intimation was given after getting confirmation of disability as 1 limb is affected 100%, however, the intimation related to injury was given immediately after accident.
The State Commission had erred in disallowing Petitioner's claim on the ground of non-filing of evidence affidavit of examination of witness though there is settled practice in Gujarat Consumer Forum as not to invite, filing of evidence affidavit or examination of witness.In fact, there was no request by the Respondent also. The petitioner is also entitled to claim benefits of Table-3, Clause-6 i.e. temporary total disablement 1% of capital sum insured per week upto 104 weeks @Rs.5,000/- per week, which comes to Rs.4,80,000/-.The Insurance Company wrongly calculated @56 weeks and Rs.2000/- per week.
The State Commission has erred in overlooking and misreading the policy documents pertaining to Janta Policy where the sum insured was Rs.5 lakhs and applicable benefit clause was loss of one limb or one eye 50% of the sum insured.So it would be Rs.2,50,000/-.Under the circumstances, the petitioner ought to have been granted under both personal accident policies.
8. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
8.1 In addition to the averments made under grounds (para 7), petitioners contended that the State Commission ought to have considered that as an Appellate Court, it is bound to look into the entire evidence, all factual and legal aspects of the matter. It is further contended that the State Commission erred in holding that foreign judgment is not binding on Indian Courts. Even as per "doctrine of comity" Indian Courts cannot discard foreign country ruling (2014) JT SC 464 at 645. The State Commission has erred in holding that the Petitioner failed to lead evidence by doctor quantifying the percentage of disability so as to award damages. Once loss of a limb is already proved, which resulted into unemployment then for such a loss of limb what amount of sum can be claimed, that is already contemplated in the policy document and one does not require to establish or assess percentage of disability or percentage of loss as contemplated under the Indian Law. Under the circumstances, the petitioner ought to have granted under both personal accident policies as under:
Rs.5,00,000/- as 100% of the sum insured.
Rs.4,80,000/- as 96 weeks x Rs.5000/- per week under Table 1 and 3, plus, Rs.2,50,000/- as 50% of the sum insured under the Janta Personal Accident Policy- the total comes to Rs.12,30,000/- plus interest (additional 25% of the weekly compensation for medical expenses or actual whichever is less also to be included in claim amount bills were already submitted to insurance company).
8.2 On the other hand, Respondent contended that the Revision Petition filed by the Petitioner is totally misconceived, baseless and is liable to be dismissed. The policy taken by the Petitioner covered the following:
The death due to accident 100% of the sum insured.
Permanent: Total Disablement due to accident 100% of the sum insured.
Loss of two eyes or two limbs or one eye and one limb due to accident 100% of the sum insured. The Petitioner obtained another policy being Householders Insurance Policy from 25.03.2003 to 24.03.2004. The risk and the extent of coverage under the said policy are indicated in the policy of insurance. The said policy covered personal accident benefits to the petitioners for death, permanent total disablement and permanent partial disablement and temporary total disablement as per the amounts indicated in the policy of insurance. The said policy covered petitioner No.2 Mrs. Sonali B Shah for a sum of Rs.2,00,000/- for Partial Permanent Disability. The Policy covered individuals against death, loss of limbs, loss of eyesight, permanent total disablement, permanent partial disablement and temporary total disablement, solely and directly resulting from accidental injuries. On 07.07.2003 the petitioner no.2 fell down in USA and sustained a fracture of the left Scapular and the petitioner no.2 made a claim with the respondent company. The claim of the petitioner no.2 was settled by the respondent company for a sum of Rs.30,000/- and a sum of Rs.25,000/- was paid to the petitioner no.2, which was accepted by the petitioners. The respondent company thereafter offered a sum of Rs.5,000/- to the petitioner no.2. However, the petitioner no.2 did not accept the same. It is further contended that the liability of the respondent company was only to the extent of Rs.30,000/- being 15% of the sum insured of Rs.2,00,000/- towards 15% Permanent Partial Disability, as opined by Dr. Maniar (M.S. Orthopatdics), the panel doctor. It is worthwhile to mention here that the petitioner no.2 was all along in USA and she did not come to India even for physical examination by the doctor. The Petitioners thereafter filed a complaint before District Forum, Ahmedabad, which was wrongly and erroneously allowed by the District Forum. Respondent company filed an appeal before the State Commission. The First Appel filed by the respondent was allowed and the company was directed to pay the balance claim amount of Rs.5,000/- to the petitioner no.2. The State Commission examined the claim of the petitioners and held that the petitioner no.2 was entitled to get only 30,000/- towards her claim on account of the accidental injury and that the petitioner no.2 had received a sum of Rs.25,000/- and that the petitioner no.2 was only entitled to the balance amount of Rs.5,000/- from the respondent company. It is further contended that the petitioners have relied upon the medical certificate of Dr. Zekavat. However, the said medical certificate does not indicate the extent of disability, if any. The Petitioners have relied upon the proceedings at Philadelphia District under Workmen's Compensation based upon compromise to contend that the petitioner no.2 suffered 100% disability. However, a perusal of the same clearly shows that the said proceedings were based on compromise and the said proceedings at Philadelphia Court were neither binding upon the respondent company nor there was any finding of 100% permanent partial disability, as alleged by the petitioners. The State Commission has rightly allowed the appeal filed by the respondent company after considering all facts and circumstances. While allowing the appeal filed by the respondent company, the State Commission has held that the Policy was taken by the Petitioners when they were in India and thereafter they went to USA and the petitioner no.2 fell down there causing injury to her hand. The Petitioner no.2 claimed that she was under treatment of Dr. Hasan Kakavat at USA. The State Commission has held that the Dr. Maniar (M.S. Orthopatic), the panel doctor has submitted his affidavit and certificate that according to the injury caused to the petitioner no.2 the disability is only 15%. The State Commission has rightly held that Dr. Maniar has neither been cross-examined nor his opinion has been challenged by the petitioners. The State Commission has rightly held that there is no reason to disbelieve the opinion and the affidavit of Dr. Maniar. The State Commission has also rightly held that the policy was issued in India and the same is governed by Indian Law, though the petitioners have gone to reside in America after taking the policy. The State Commission has rightly held that American Laws cannot be made applicable to the said policy. The State Commission has rightly held that Dr. Maniar has taken the facts submitted by the petitioners into consideration. The State Commission has rightly held that the petitioner no.2 has neither bothered to come to India to get herself examined from the Doctor nor has submitted the affidavit of Dr. Jekavat. The State Commission has rightly held that the District Forum and the petitioners have proceeded on the premise of judgment of the court of USA, as per the laws of America on the basis of which the petitioner no.2 claims disability to be 100%. The State Commission has rightly held that the policy of insurance is a contract which was made in India and the same is required to be considered and interpreted in accordance with the policy conditions and the laws of India. The State Commission has rightly held that the personal accident policy of USA or any other policy having separate conditions and when the applicable law is different, cannot be implemented here with reference to the policy in question. The State Commission has rightly held that the American Laws or conditions of American Policy are not binding on the respondent company. The State Commission has rightly held that the petitioner no.2 has not come to India nor has been examined by any doctor in India and has not submitted any opinion or affidavit of any doctor or expert. The State Commission has rightly held that the petitioners have not submitted any documentary evidence or certificate for permanent disability and the State Commission rightly declined to rely upon the judgment by the Court of USA. The order passed by the State Commission is based upon correct appreciation of facts and circumstances and material and law and there is no infirmity in the same. The opposite party/insurance company has relied upon the following judgments:
A. Export Credit Guarantee Corporation of India Ltd. versus Garg Sons International reported as (2014) 1 SCC 686.
B. Suraj Mal Ram Niwas Oil Mills Private Ltd. Insurance Co.Ltd. versus United India Insurance Co. Ltd. reported as (2010) 10 SCC 567.
C. United India Insurance Co. Ltd. Versus Harchand Rai Chandan Lal reported as (2004) 8 SCC 644.
D. Vikram Greentech India Ltd. versus New India Assurance Co. Ltd. reported as (2009) 5 SCC 599.
E. Oriental Insurance Co. Ltd. versus Sony Cherian reported as (1999) 6 SCC 451.
F. Deokar Exports P Ltd. versus New India Assurance Co. Ltd. reported as (2008) 14 SCC 598.
9. The State Commission, in appeal filed by the Insurance Company, has modified the orders of the District Forum by allowing payment of Rs.30,000/- only to the Complainant. State Commission has relied upon affidavit/certificate of Dr. Maniar, who is a panel doctor of Insurance Company, as per which the extent of permanent disability is 15% only. State Commission has observed in its order that policy is issued in India, Complainant has gone to USA, American Laws cannot be applied to the policy of India; Complainant has not bothered to come to India and get himself examined from a doctor nor has submitted affidavit of Dr. Jekavat, District Forum has believed the judgment of USA Court, as per their law of policy, permanent disability has been considered 100%, OP is not bound by American Law or considerations of American Policy. While we agree with some of the observations of State Commission that policy in question having been issued in India, is governed by Indian Laws and not American Laws, and that foreign court judgments are not binding, but at the same time, we are of the considered view that foreign court judgments do have some evidentiary value and many time these gets quoted in judgments of Indian Courts. Hence, though not binding per se, such judgments can be relied upon to some extent as evidentiary value, depending upon the facts and circumstances of the case, Section 13 of The Code of Civil Procedure, 1908 deals with the situation when foreign judgment not conclusive. Section 13 of CPC is reproduced below:-
"A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of [India] in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India."
10. Here the pertinent question is about the extent of disability suffered by the complainant, whether it is 15% or 100%. This has to be determined in accordance with available records and evidence on record placed by the parties. The District Forum in its order has observed that the Complainant had taken two policies while in India, then went to USA, there on 07.07.2003 she fell down and sustained fracture on the left hand and lodged claim with all documentary evidences. District Forum after evaluating the entire evidence, including the judgment of foreign court, and treatment papers, and affidavit by Dr. Maniar (panel Doctor of Insurance Co.), concluded that the complainant had proved 100% defect in her left hand and held OP guilty of deficiency in service and unfair trade practices. District Forum has given a detailed and well-reasoned order while holding that complainant suffered 100% disability in her left hand, which is evident from the extract of some of the portions of order of District Forum, which are reproduced below:
"...... Dr. Maniyar has specifically stated that he has mentioned permanent disability of the applicant for the period from 7.7.2003 to 26.9.2003 and thereafter the evidence of doctor and foreign judgment sent by the applicant has not been taken into consideration. In this circumstance, the opinion of Dr. Maniyar for the permanent disability of the applicant is without any basis and supporting evidence.
......Moreover Shri Mehta also drawn attention to the said letter and stated that at page 58, the applicant has clearly stated that in the Hospital of U.S.A., treatments papers and certificate issued by the Hospital are not anywhere produced except court and the said fact is not denied by the opponent. In these circumstances, applicant was not in a position to produce with the opponent insurance company, the certificate issued by the Hospital of U.S.A. for the permanent disability though Shri Mehta on the basis of statement made in the said letter page 57, stated that court of U.S.A. had given compensation for 37 years to the applicant and this fact was within the knowledge of the opponent though has not considered the same.
Thereafter, Shri Mehta has drawn our attention to the copy of the judgment produced by the applicant and given by the foreign court regarding accident which is produced vide page 169. In the said judgment on page 170 it is decided to give compensation to the applicant for the permanent disability from 20.12.2004. The papers of this judgment has been given to the opponent by the applicant and there is not dispute about it. The opponent has not taken into consideration the permanent disability of the applicant as stated in the said judgment. In support of the said statement of the applicant, Shri Metha drawn out attention at the report of the panel doctor of opponent Shri Maniyar at page 98 alongwith it, case papers of the treatment taken in the foreign has been sent to the opponent by the applicant and perusing it, it is observed that, in the said papers it is stated that in 8.1.2004 use of the left hand of the applicant is closed. In the circumstances, Dr. Maniyar at page 98, clearly admitted that as per the treatment papers produced by the applicant, use of left hand is totally closed and therefore it supports of the statement of the applicant that there is 100% permanent disability in that hand. Therefore in these circumstances, considering the 100% disability of the applicant, compensation was required to be paid, which is not paid. In this reference, it is pertinent to note the statement regarding claim of the applicant made in the letter dated 20.9.2004 written to the opponent insurance company. In which the applicant has specifically stated that as per the documents dated 1.8.2003, as per opinion of the doctor, his left had is totally infirmed and it is supported vide the statement of the Dr. Maniyar. This statement of the Shri Mehta has reality and therefore it is accepted. Besides this, it also supports the statement of the applicant regarding compensation paid to the applicant by the foreign court in the judgment in respect of permanent defect of the applicant. Therefore, in these circumstances, it is proved that applicant has 100% permanent defect in his left hand and as such the opponent insurance company is responsible to pay amount of insurance accordingly.
Thereafter, Shri Mehta drawn our attention to the disputed insurance policy which is taken by the applicant the condition of which has been produced by the opponent at page 164. As per condition at serial No. F at page 165, the applicant is required to be paid 1% of the insurance amount every week which is not exceeded more than Rs. 5000/- per week under personal accident insurance towards permanent defect. Accordingly from 7.7.2003 for 74 weeks, as stated in policy page 106, for the claim of Rs. 2,00,000/- as per table -1, 1 per cent means 2000 x 74 weeks, Rs. 1, 88,000/- is admissible to the applicant and as per policy page 106, for the insurance of Rs. 5,00,000/- as per table -3, as per conditions produced vide page 106, as per Clause-C (ii), 50% of the insurance amount means, 50% of insurance amount Rs.5,00,000/- means Rs. 2,50,000/- is to be paid to the applicant. As such under the policy at page 106, applicant is entitled to get Rs.4,38,000/-.
Thereafter She Mehta drawn our attention towards the Janata Personal Accident policy taken by the applicant No.2 which is from 15.10.1998 to 14.10.2013 for 15 years of the Rs. 5,00,000/-. The said policy is produced vide page 104 in which as per the condition of page 105, and as per condition no.2, if the permanent defect is caused due to accident, then 100% amount of the policy taken is to be paid. The claim of the said policy by the applicant has been preferred dated 9.5.2005. An intimation letter given to the applicant dated 9.5.2005 by the insurance company for the procedure of policy No. 106 has been produced at page 157 and this intimation is dated 1.3.2005. To this reference, Shri Petiwala has forcefully stated that this policy is of page No. 104. As per condition No.1 to prefer the claim, information for the accident has to be given immediately. But the said intimation n of accident dated 7.7.2003 has been given very late on 9.3.2005, therefore claim of the applicant deserves to be rejected. At this stage Shri Mehta forcefully submitted that applicant's this claim has never been processed by the insurance company and it is not denied. Therefore no objection has been taken for it. Therefore Shri Petiwala cannot take make any submission. According to our view when the insurance company has not processed the claim till the suit is filed, though intimation dated 1.3.2005 is preferred by the insurance company which is received on 9.5.2005, therefore now the insurance company cannot raise any objection. In these circumstances, it is decided that applicant is entitled to 100% compensation of insurance policy of Rs. 5,00,000/- as fixed in condition No. 2 of policy page 105. In these circumstances, Rs. 4,38,000/- and Rs. 5 lacs, total Rs. 9,38,000/- of both these policies the applicant is entitled to get. And out of the said amount after deducting Rs. 25,000/- which paid to the applicant, remaining amount of Rs. 9,13,000/- is required to be paid to the applicant.
Shri Petiwala relied on the principle laid down by our Supreme Court of India, reported in 2009 (4), CPR, page 121 (S.C.) Rameshchandra Agrawal Vs. Regency Hospital & others in which it is held that in the case of negligence, expert opinion is necessary. In the present case, no evidence is produced that applicant has 100% permanent partial disablement and therefore the opinion given by is panel doctor is to be believed. According to our view, there is no dispute regarding principle laid down by the Hon'ble Supreme Court. But as discussed above, in this case it is proved that applicant has 100% permanent defect in his left hand by accepting the foreign judgment and treatment papers of the applicant by Dr. Maniyar Therefore judgment relied by Shri Petiwala cannot help him. Thereafter Shri Petiwala relied on the principle laid down by the Hon'ble National Commission, 2009 (3), C.P.R. page 15 (N.C.), the Manager Newage Motors Pvt. Ltd Vs. Vijaykumar & Others. In the said case, National Commission has held that in the case of defect in vehicle, the opinion of the expert is to be believed if there is no other evidence. This principle laid down is not disputed. But as observed above, the principle laid down in this case is not applicable in any way to the present case. The applicant has proved his 100% defect in his left hand by evidence of treatment papers and also foreign judgment and therefore there is no doubt about it.
Considering the submissions of both the parties, provisions of law and evidence, the fact is proved that the opponent is guilty of deficiency in service and unfair trade practice by not paying the sufficient amount of insurance to the applicant No.2 and by not proceeding the personal accident claim policy. Therefore issues No.1 and 2 are decided to be proved and following final order is passed."
11. We are broadly in agreement with the observations and findings of the District Forum. We have carefully perused the certificate issued by Dr. Hiren P. Maniar, who is the panel doctor of the insurance company and who has given his certificate based on available details/records only as the insured did not present herself before him, being in U.S. In the certificate Dr. Hiren P. Maniar states that considering the nature of her injuries and available details, he recommend 7.7.03 to 6.8.03 as period of Temporary total disablement, stating further that it is difficult to give any opinion regarding permanent disablement suffered by the insured without examining her. He further states that according to Dr. Kessler's manual, on an average, such fractures do not have permanent disablement of more than 15% approx. of the involved upper limb. No doubt the judgment of the Overseas Court in the present case is based on compromise and release Agreement and hence does not throw much light on the merits of the case with respect to the extent of disability suffered by the complainant, however, perusal of various overseas treatments related records, show that there is loss of one hand.
12. In view of foregoing, we are of the considered view that action of the Insurance Company to pay compensation only based on 15% disability level is not correct. The State Commission went wrong in reversing a well-reasoned order of the District Forum. As long as the extent of disability is based on evidence relied upon by the District Forum and the same is covered under the valid Insurance Policies held by the complainant, she is entitled to full claim under the policy. Hence, in the given facts and circumstances of the case orders of the State Commission cannot be sustained and the same is set aside. Order of the District Forum is restored. Insurance Company will pay the amount as ordered by the District Forum within 45 days from today.
13. The pending IAs in the case, if any, also stand disposed off.
................................................ DR. INDER JIT SINGH PRESIDING MEMBER