State Consumer Disputes Redressal Commission
New India Assurance Company Limted vs Shri Ram Singh And Another on 29 July, 2010
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA-9. FIRST APPEAL No.374/2009. DECIDED ON 29.07.2010. In the matter of: The New India Assurance Company Limited, Divisional Office, 3rd Floor, Block No.7, SDA Complex, Shimla-9, through its Deputy Manager. ... ... Appellant. Versus 1. Shri Ram Singh son of Shri Badal Singh, Resident of Chandra Company, Post Office Bakash Kot, Tehsil Jalpaiguddi, West Bengal, at present resident of Cemetery, Kanlong, Shimla Bye-pass Road, Shimla, H.P. 2. The Executive Engineer, H.P. Public Works Department, U.S. Club, Shimla. ... ... Respondents. . Honble Mrs. Saroj Sharma, Presiding Member.
Honble Mr. Chander Shekher Sharma, Member.
.
Whether approved for reporting? Yes.
For the Appellant : Mr. Jagdish Thakur, Advocate.
For the Respondent No.1: Mr. Jagat Paul, Advocate.
For the Respondent No.2: Mr. Anoop Sharma, A.D.A. .
O R D E R:
Per Mrs. Saroj Sharma, Presiding Member.
Present appeal has been preferred by the appellant-insurance company against the order passed by District Consumer Disputes Redressal Forum, Shimla on 24.08.2009 in Consumer Complaint No.130/2006, vide which the complaint was allowed and the present appellant was ordered to indemnify the respondent No.1 as per terms of the policy Annexure R-1 and to pay the complainant an amount payable to him as per policy Annexure R-1 with interest with effect from filing of complaint alongwith interest @ 9 % per annum with effect from 09.05.2006 till making the payment of entire amount. Appellant was further burdened with litigation cost amounting to Rs.1,500/-.
2. Feeling aggrieved by the impugned order, the appellant-Company came before the Commission with the present appeal.
Admitted facts are that the respondent No.1 was Beldar with Himachal Pradesh Public Works Department, Sub Division No.1, Shimla. Accident of respondent No.1 on 29.05.2003 is also admitted. Disability to the extent of 60 % is also admitted by both the parties. The only question for determination before us is, whether the disability is temporary or permanent? If the disability is permanent, then the respondent No.1 is entitled for the claim as per terms of insurance policy. However if the disability is temporary, then the respondent No.1 is not entitled for the claim.
3. We have gone through the record of Forum below as well as have heard the learned counsel for the parties.
4. Mr. Jagdish Thakur, who is counsel for the appellant was vehemently argued that the respondent No.1 is not entitled for any relief for the simple reason that the Medical Board of PGI has not declared the respondent No.1s disability as permanent. Though there is disability to the extent of 60%, yet same is subject to review after 5 years and as such he has sought dismissal of the complaint and has prayed that the appeal of his client be allowed with costs.
5. On the other hand, Mr. Jagat Paul who has appeared for the respondent No.1 argued that the Medical Board of PGI has declared the disability of respondent No.1 to the extent of 60%. He has made reference to Anenxure C-1 which shows that the respondent No.1s disability is 60%. However he has further argued that the PGI Medical Board has made omission by not showing the disability as permanent. He further made reference to Annexure-RX which is certificate issued by Medical Board of Deen Dayal Upadhaya Zonal Hospital, Shimla in which the disability is shown as permanent to the extent of 60%. It is on this score that he prayed for dismissal of appeal.
6. Looking to the controversy involved between the parties, we may examine the record of Forum below in detail. While going through the complaint filed by the respondent No.1, we find that same is based mainly on Annexure C-1. Respondent No.1 has taken treatment in PGI and the Medical Board issued a certificate of 60% disability. Mr. Jagat Paul has argued further that since his client is in old-age, so there are very remote chances of his recovery from disability which is 60% and as such the same is permanent. He further made reference to Anenxure-RX, where the disability has been declared as permanent by the Medical Board of Deen Dayal Upadhaya Zonal Hospital, Shimla. But we are not convinced by the arguments raised by Mr. Jagat Paul, reason being that the respondent No.1 took treatment in PGI and the Medical Board of PGI who consisted of better experienced doctors, declared the extent of disability as 60% subject to re-assessment after 5 years. There might have been chances of respondent No.1s recovery from 60% disability and that might have been reason for advising him to get the same re-assessed after 5 years. The certificate issued by the Medical Board of PGI was issued on 03.03.2005, whereas the same was to be got reviewed after 5 years, i.e. after 02.03.2010, but the respondent No.1 without waiting for 5 years appeared before the Medical Board in Deen Dayal Upadhaya Zonal Hospital, Shimla which issued certificate for 60% permanent disability on 20.02.2007. But we are of the view that best course for respondent No.1 was to wait for 5 years after issuance of first certificate by PGI Medical Board, and then get re-assessment of same after a period of 5 years. Why the respondent No.1 procured second medical certificate from Shimla, reason is best know to him. While going through the record of Forum below, we find that Anenxure R-10 which is an information under Right to Information Act, is very clear about the nature of disability. Anenxure R-10 clinches the whole issue. There is mention that the disability is of temporary nature and the same is subject to review after 5 years. This report has been made by Medical Record Officer Central Registration Department, PGI Chandigarh. Said report was required by the department where the respondent No.1 was working, in order to get his claim settled and an authority letter was also taken from respondent No.1 for the said purpose as the same was required by the Investigator of the appellant in order to clarify the facts from the record of PGI regarding disability. In the face of Annexure C-1, we fail to understand as to why the respondent No.1 did not wait for 5 years and procured Annexure-RX. Best course to be adopted by him should have been to wait for 5 years and to get the re-assessment done. Had he been found disable as per terms of the appellant, he should have applied to the appellant for getting his claim settled instead getting another parallel medical certificate of disability, reason being that process of law is to help the needy, but the same is not to be abused. The Forum below has not applied its mind while deciding the complaint filed by the respondent No.1 before the Forum below.
7. So keeping in view all the facts and circumstances of the present appeal, we are of the considered view that this is a fit case of non-application of mind by the Forum below, and thus the appeal deserves to be allowed. As a result of it, the present appeal is allowed and the impugned order passed by District Consumer Disputes Redressal Forum, Shimla dated 24.08.2009 in Consumer Complaint No.130/2006 is quashed and set aside and the complaint is dismissed being pre-mature. However we direct the appellant-insurance company to consider the claim case of the respondent No.1 sympathetically if it is filed before the appellant after getting permanent disability certificate from PGI Medical Board as mentioned in Anexure C-1. However if in that event, the respondent No.1 gets aggrieved by the act of the appellant in settlement of his claim, then in that case he shall be at liberty to approach the Consumer Foras as well as courts of competent jurisdiction again.
In that event this order shall not come in the way of respondent No.1.
8. All interim orders passed from time to time in this appeal shall stand vacated.
9. Parties are left to bear their own costs.
10. Learned counsel for the parties have undertaken to collect copy of this order from Court Secretary, free of cost as per rules.
SHIMLA.
29.07.2010 (Saroj Sharma) Presiding Member.
(Chander Shekher Sharma) Member.
/dinesh/