State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Dhanesh Kumar Sinha & Anr. on 23 April, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/13/520
Instituted on : 05.09.2013
The Oriental Insurance Company Limited,
Branch Office - Near Office of Life Insurance
Corporation of India,
Railway Station Road, Rajnandgaon,
Tehsil and District Rajnandgaon (C.G.)
Through : Divisional Manager,
The Oriental Insurance Company Limited,
Divisional Office : Parmanand Bhawan,
Near Dr . Rajendra Prasad Chowk, G.E. Road,
Durg, Tehsil & District Durg (C.G.) ... Appellant
Vs.
1. Dhanesh Kumar Sinha, S/o Shri Dhurauram Sinha,
R/o : Main Road, Daundilohara,
Tehsil - Daundilohara, District Balod (C.G).
2. Branch Manager,
Chhattisgarh Rajya Gramin Bank,
Branch : Daundilohara,
Tehsil Daundilohara, District Balod (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES :-
Shri L.K. Joshi, for appellant.
None for the respondents.
ORDER
Dated : 23/04/2014 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against order dated 12.08.2013, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) // 2 // (henceforth District Forum") in Complaint Case No.343/2012. By the impugned order, the learned District Forum, has partly allowed the complaint of the respondent no.1 (complainant) and directed the appellant (O.P.No.1) to pay a sum of Rs.2,50,000/- as compensation to the respondent No.1 (complainant) along with interest @ 6% p.a. from the date of filing of the complaint till date of payment. The District Forum has further directed the appellant (O.P.) to pay a sum of Rs.10,000/- as compensation for mental agony and unfair trade practice and Rs.2,000/- as advocate fees and cost of litigation.
2. Briefly stated, the facts of the complaint of the respondent no.1 (complainant) before the District Forum are : that the respondent No.2 (O.P. No.2 Bank) had obtained Personal Accident Insurance Policy No.192502/48/2011/278 from the appellant (O.P.No.1) on 29.07.2010 for its 617 account holders . The insurance policy was valid for the period from 29.07.2010 to 28.07.2011. The respondent No.1 (complainant) was an account holder of the respondent No.2 (O.P.No.2 Bank). For the payment of premium of the insurance policy, the respondent No.2 (O.P.No.2 Bank) withdrawn a sum of Rs.100/- from the account of the respondent No.1 (complainant) and provided the same to the appellant (O.P.No.1). On 19.10.2010, the respondent No.1 (complainant) sustained injuries in the road accident. The incident was reported to the Police Station, Daundilohara and the respondent // 3 // No.1 (complainant) was sent for Medical Examination to Government Hospital, Daundilohara. As result of the accident, the right eye of the respondent No.1 (complainant) was fully damaged and he also suffered head injury. Government Hospital, Daundilohara referred the respondent No.1 (complainant) to Apollo BSR Hospital, Bhilai (Durg) where the operation of the respondent No.1 (complainant) was conducted. As a result of the accident, the hands and leg of the respondent No.1 (complainant) were also fractured. The respondent No.1 (complainant) was hospitalized in the hospital from 19.10.2010 to 06.01.2011 i.e. near about 1 ½ - 2 months. The details regarding the injuries sustained by the respondent No.1 (complainant) was given in the report of Apollo B.S.R. Hospital, Bhilai (Durg), which was given on 06.01.2011. The respondent No.1 (complainant) is entitled for obtaining compensation of Rs.5,00,000/- as compensation under the insurance policy for his physical condition. The appellant (O.P.No.1) refused to pay compensation to the respondent No.1(complainant) and thus committed deficiency in service. Therefore, the respondent No.1 (complainant) filed consumer complaint before the District Forum seeking compensation of Rs.5,00,000/- along with other relevant expenses.
3. The appellant (O.P.No.1) filed his written statement before the District Forum and pleaded that burden to prove that respondent // 4 // No.1 (complainant) suffered permanent disability in the accident, was on the respondent No.1 (complainant). The medical certificate submitted by the respondent No.1 (complainant) is not sufficient to prove that the respondent No.1 (complainant) has suffered permanent disability. The respondent No.1 (complainant) has not been able to prove that he lost vision of his right eye permanently. The Medical Board has not given any certificate regarding respondent No.1's (complainant's) physical illness. The respondent No.1 (complainant) had not suffered permanent disability, therefore, he is not entitled for getting any compensation under the insurance policy. The intimation regarding the incident was given to the appellant (O.P.No.1) after 49 days from the date of incident and copy of the First Information Report was also not submitted by the respondent No.1 (complainant). Due to above reasons, the appellant (O.P.No.1) repudiated the claim of the respondent No.1 (complainant) and thus committed deficiency in service. On the basis of above pleadings, the prayer was made for dismissal of the complaint with cost.
4. The respondent No.2 (O.P.No.2 Bank) also filed its written statement and pleaded that no deficiency in service was committed by the respondent No.2 (O.P.No.2 Bank). After receiving the claim form from the respondent No.1 (complainant), the respondent No.2 (O.P.No.2) had sent the claim form immediately to the appellant // 5 // (O.P.No.1). The respondent No.2 (O.P.No.2) was not a necessary party in the case. There is mis-joinder of the parties in the case. The respondent No.2 (O.P.No.2) prayed for dismissal of the complaint.
5. After having considered the material placed before the District Forum, the learned District Forum, partly allowed the complaint and awarded compensation to the respondent No.1 (complainant), as mentioned in para 1 of this order.
6. Shri L.K. Joshi, learned counsel for the appearing for the appellant (O.P.No.1) argued that the impugned order passed by the District Forum, is contrary to law and also contrary to terms and conditions of the insurance policy and is liable to be set aside. He further argued that the appellant (O.P.No.1) issued Personal Accident Insurance Policy (Group) for the account holders of the respondent No.2 (O.P.No.2 Bank) and if due to accident, the insured died a sum of Rs.5,00,000/- is payable, and in case of permanent disability of both hands, both legs or both eyes of the insured, then Rs.5,00,000/- is payable and if in accident there is permanent disability of one leg/hand or one eye, then Rs.5,00,000/- is payable. In addition to it, in case of other loss, which means loss of one limb, it is not covered. The respondent No.1 (complainant) accepted the above facts and submitted document Ex.P-7, in which the amount of premium, risk cover, additional benefit, exclusions, procedure of making claim, have been // 6 // mentioned. This document has not been rebutted by the respondent No.2 (O.P.No.2) and the appellant (O.P.No.1), therefore, there is no reason to disbelieve it, but the learned District Forum committed an error in passing the impugned order. He further argued that the respondent No.1 (complainant) has not submitted any certificate regarding his permanent disability and the respondent No.1 (complainant) has utterly failed to prove that he suffered permanent disability in the accident, but the learned District Forum has ignored the important facts and circumstances of the case and passed the impugned order. He further argued that as per condition No.1 of the insurance policy, the insured is required to intimate regarding the incident to the appellant (O.P.No.1) within one month from the date of the incident. In the instant case, the incident occurred on 19.10.2010, whereas the respondent No.1 (complainant) intimated the appellant (O.P.No.1) on 01.12.2010 i.e. after 49 days from the date of incident, which is violation of said condition, due to which the claim was not payable, but learned District Forum has ignored this condition of the insurance policy also. He further argued that the respondent No.1 (complainant) has not submitted copy of the criminal case copy of first information report, which are relevant for just and proper adjudication of the case. The impugned order passed by the District Forum is not sustainable in eye of law.
// 7 //
7. None appeared for the respondents before us on 25.03.2014, when the case is fixed for final arguments.
8. We have heard arguments of Shri L.K. Joshi, learned counsel appearing for the appellant (O.P. No.1) and have also perused the record of the District Forum.
9. The respondent No.1 (complainant) filed documents. Document Ex.P-1 is notice date 23.07.2011 sent through Advocate to the appellant (O.P.No.1), document Ex.P-2 is acknowledgement, document Ex.P-3 is postal receipt, document Ex.P-4 & P-5 are copy of pass book of Dhanesh Sinha of saving bank account No.450307, document Ex. P-6 is medical certificate dated 06.01.2011 of Apollo BSR Hospital, Bhilai, document Ex.P-7 is exclusion clause and particulars of additional benefit under the insurance policy, document Ex.P-8 is letter dated 05.04.2011 sent by the respondent No.1 (complainant) to Branch Manager, Durg - Rajnandgaon Grmain Bank, Branch Daundilohara, regarding submission of claim form, document Ex.P-9 is letter sent by respondent No.1 (complainant) to Branch Manager, the Oriental Insurance Company Limited regarding his claim, document Ex.P.10 & P-11 are person accident claim form, Ex.P.12 is requisition for medical examination, document Ex.P-13 is letter dated 19.10.2010 sent by Dr. Vinod Kumar, M.O., CHC, Daundilohara to Officer Incharge, Police Station, Daundilohara.
// 8 //
10. Appellant/O.P. No.1 has also filed documents. Document D-1 is G.P.A. Unnamed Policy Schedule, document 2 is Personal Accident Insurance Policy (Group), document D-2 is letter dated 01.12.2010 sent by D.R.G. Bank to the appellant (O.P.No.1), document D-3 is letter dated 03.10.2011 sent by the appellant (O.P.No.1) to respondent No.1 (complainant), document D-5 is letter dated 28.07.2011 sent by D.R.G. Bank to the appellant (O.P.No.1).
11. The respondent No.2 (O.P.No.2) filed document i.e. letter dated 28.07.2011 sent by the respondent No.2 (O.P.No.2) to the appellant (O.P.No.1).
12. In the case of National Insurance Company Limited vs. Gopanaboina Sathyam & Ors., I (2014) CPJ 198 (NC), Hon'ble National Commission observed thus :-
"7. We have carefully considered the rival contentions. The only legal issue which has emerged from the arguments is as to whether in terms of the scope of cover provided for in the terms and conditions of the policy, proportionate compensation is permissible. Learned Counsel for the petitioners has placed reliance on three judgments of the Apex Court in the cases of Oriental Insurance Co. v Sony Cheiryan, II (1999) CPJ 13 (SC) = VI (1999) SLT 565 = II (1999) ACC 196 (SC) = (1999) 6 SCC 451; National Insurance Co. Ltd. v. Laxmi Narain Dhut, III (2007) CPJ 13 (SC) = II (2007) ACC 28 (SC) = IV (2007) SLT 102 = 2007 - 258 (2.3.2007) (SC); and United India Insurance Co. v. Harchandrai Chandan Lal, IV (2004) CPJ // 9 // 15 (SC) = V (2004) SLT 876 = (2005) ACJ 570 (SC). We have considered the observations of the Apex Court in these three cases referred to by the Counsel. The essence of he observations of Hon'ble Supreme Court is that the insurance policy between the insured and the insurer represents contract between these parties and the terms of the policy govern this contract. This being the position, it has been laid down that we have to abide by the words used in the policy and there is no scope for adding or subtracting the wordings of the policy as agreed to and accepted by the parties. Applying the aforesaid principles laid down by the Apex Court to the present case, we find that as per scope of the cover provided under the terms and conditions attached to the policy, the case of the complainant is covered by para 2.7 read with the main para 2 which governs the sub-paras included under the main para. For the sake of better appreciation, we may reproduce the chart of benefits available under the scope of cover as under :
""(1) Death 100% of sum insured.
(1.1) Permanent total disablement. 100% of sum insured.
(2) Total and irrecoverable loss of: 100% of sum insured.
(2.1) Sight of both Eye. 100% of sum insured.
(2.2) Actual loss by physical
separation of two entire hands. 100% of sum insured.
(2.3) Actual loss by physical
separation of two entire feet. 100% of sum insured.
(2.4) Actual loss by physical
separation of hand and one
entire foot.
(2.5) Actual loss of sight of one eye
and actual loss by physical
separation of one entire hand. 100% of sum insured.
(2.6) Actual loss of sight of one eye
// 10 //
and actual loss by physical
separation of one entire foot. 100% of sum insured.
(2.7) Loss of sight of one Eye. 50% of sum insured.
(2.8) Actual loss by physical
separation of one entire hand. 50% of sum insured.
(2.9) Actual loss by physical
separation of one entire foot. 50% of sum insured.
8. We may note from the above that so far as loss of sight of one eye is concerned, 50% of the sum insured is payable. Since the complainant suffered only 30% of sight of one eye, the Fora below have considered award of 30% of 50% of the sum insured which comes to Rs.75,000. It is important to note that although there is further elaboration of the nature and extent of loss under each of the sub-
paras by adding prefixes/adjectives like "actual" "entire", "physical", etc. there is no further adjectives or prefixes added before the words "loss of sight of one eye". The contention of the learned Counsel for the petitioners is that the main clause which contains the words "total and irrecoverable loss of" governs all the sub-clauses and hence it would exclude the present claim which pertains to only 30% loss of sight. On the other hand, the contention of learned Counsel for respondent/complainant is that absence of the word "full" or "total" in the beginning of the entry at Sl. No.2.7 indicates that the claim under this entry which cannot exceed 50% of the sum insured in cases of full loss of sight of one eye has to be considered on proportionate basis in case of such loss which is of total and irrecoverable in nature as contained in para 2. Learned Counsel for the complainant/respondent further said that if there was an intention to exclude consideration of claims in case of partial loss, the entry would certainly have clarified it by adding the prefix "full" and/or "total" before the word loss in this entry. In view of the matter, he has // 11 // submitted that the Fora below were right in accepting the claim on proportionate basis in terms of the limits laid down by the terms and conditions".
13. In the instant case, the respondent No.1 (complainant) filed Medical Certificate of Apollo BSR Hospitals, Bhilal (document Ex.P-6) Personal Accident Claim Form (document Ex.P-10), medical requisition letter (document Ex.P-12) and Medico Legal Certificate. In Medico Legal Certificate it is mentioned that "...Profused bleeding Rt. Eye closed." Medical Certificate sent by Dr. Vinod Ku. to the Officer Incharge Police Station, Dondilohara is document Ex.P-13. In this document, it is mentioned that "a pt. Mr. Dhanesh Sinha S/o Ghurau Ram Sinha age 35 years / M. Caste Kalar, Resident of Village Dondilohara brought to hospital by Raju Sinha after road side accident. After primary treatment Pt. refer to Higher centre for further treatment . Please do needful. In document Ex.P-6 it is mentioned that "This is to certify that Mr. Dhanesh Sinha age 35 resident of Dondilohara is suffering from Head Injury with loss of ® Eye with severe disability with pontic infarct of residual Diplegia and has / had been under my treatment from 19.01.2010 till date. He has been advised complete bed rest during the above period of illness. He is medically unfit to resume his duties/ work. "
// 12 //
14. Appellant (O.P.No.1) filed document D-1 GPA Unnamed Policy Schedule along with terms & conditions of the insurance policy (document D-2). In document D-2 it is mentioned that :
"NOW the policy witnesseth that subject to and in consideration of the payment made or agreed to pay the company the premium for the period stated in the schedule or for any further period for which the company may accept payment for the renewal of this policy and subject to the terms provisions exceptions and conditions therein expressed or contained or hereon endorsed the company shall pay to the INSURED to the extend and in the manner hereinafter provided that if any of the insured persons shall sustain any bodily injury resulting solely and directly from accident accused by external violent and visible means the sum hereinafter set forth in respect of any of the insured specified in the schedule :
(a) ......................
(b) If such injury within twelve (12) calendar months of its occurrence be the be the sole and direct cause of the total and irrecoverable loss of
(i) Sight of both eyes, or of the actual loss by physical separation of the two entire hands or two entire feet, or of one entire hand and one entire foot, or of such loss of sight or one eye and such loss of one entire hand and one entire foot, the capital sum insured stated in the schedule hereto applicable to such insured person
(ii) Use of two hands or two feet, or of one hand and one, foot or of such loss of sight or one eye and such loss of use of one foot, the capital sum insured stated in the schedule hereto applicable to such insured person.
// 13 //
(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 percent (50%) of the capital sum insured stated in the schedule hereto applicable to such insured person.
(ii) Total and irrecoverable loss of use of a hand or a foot without physical separation, fifty percent (50%) of the capital sum insured stated in the schedule hereto applicable to such insured person".
15. The respondent No.1 (complainant) also filed document Ex.P-7. In the said document it is mentioned that :-
"nq?kZVuk ls rkRi;Z %& jksM ,oa jsy ,DlhMsV] ikuh esa Mwcuk] isM+ ls fxjrk dqrs dk dkVuk] ce foLQksV] vkradokn] xSl ;k flys.Mj QVuk] fctyh fxjuk] fo|qr djaV] lkai ;k fcPNw ds dkVus bR;kfn ls e``R;q ;k iw.kZ viaxrk chek&tksf[ke eqvkotk jkf'k 1- nq?kZVuk ls e``R;q :- 5 yk[k 2- nq/kZVuk ls nksuksa gkFk ;k iSj : 5 yk[k nksuks vkWa[k dh LFkk;h viaxrk 3- nq?kZVuk ls ,d gkFk vkSj ,d iSj : 5 yk[k ;k ,d gkFk@iSj vkSj ,d vkW[k dh LFkk;h viaxrk vfrfjDr ykHk (fcuk vfrfjDr izhfe;e ds) okLrfod ,Ecqysal [kpZ vf/kdre : 1000@& chek /kkjd ds e``r nsg dks vkokl rd ys tkus gsrq okLrfod [kpZ // 14 // vf/kdre : 2500@& viotZu 1- tkucq>dj Lo;a{kfr] vkRegR;k 2- u'khyh 'kjkc@MªXl ds izHkko esa jgrs gq, 3- foeku esa vf/kd``r ;k=k ds vykok 4- ikxyiu 5- vkijkf/kd bjkns ls dkuwu Hkax djus ds ifj.kke Lo:i 6- ;q) ,oa U;wDyh;j tksf[ke 7- f'k'kq tUe ;k xHkkZoLFkk ds izR;{k ;k ijks{k ifj.kke Lo:i "
16. Looking the Medical Report filed by the respondent No.1 (complainant) it appears that the respondent No.1 (complainant) lost his vision of right eye and there is permanent disability in his right eye. The terms and conditions of the Personal Accident Insurance Policy (Group) filed by the appellant (O.P.No.1) in clause (c) (i) it is mentioned that the sight of one eye, or of the actual loss by physical separation of one entire hand or of one entire foot, fifty percent (50%) of the capital sum insured stated in the schedule hereto applicable to such insured person. From this clause it is clear that the Insurance Company is binding by the condition that if due to accident the insured lost sight of one eye, the Insurance Company will pay 50% of Rs.5,00,000/- i.e. Rs. Two Lakh Fifty Thousand only. In the instant // 15 // case, the right eye of the respondent No.1 (complainant) was fully damaged, therefore, he is entitled for Rs.2,50,000/-.
17. We find that as per scope of the cover provided under the terms and conditions attached to the policy, the case of the complainant is covered by clause © of the terms and conditions of the policy and according to the terms and conditions of the policy, so far as loss of sight of one eye is concerned, 50% of the sum insured is payable since the respondent No.1 (complainant) suffered permanent loss of sight of one eye, therefore, the respondent No.1 (complainant) is entitled for compensation i.e. 50% of the sum insured which comes to Rs.2,50,000/-. We have also perused para 11 of the impugned order. Learned District Forum has rightly held that the respondent No.1 (complainant) is entitled for compensation of Rs.2,50,000/-.
18. Therefore, the impugned order passed by the District Forum, does not suffer from any infirmity or illegality and does not call for any interference by this Commission.
19. Hence, the appeal filed by the appellant (O.P.No.1), being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar)
President Member
/04/2014 /04/2014