National Consumer Disputes Redressal
Life Insurance Corporation Of India vs Banwari Lal Yadav on 30 August, 2013
National Consumer Disputes Redressal Commission New Delhi Circuit Bench at Jaipur, Rajasthan REVISION PETITION No. 4575 of 2008 (From the order dated 13.08.2008 in Appeal no. 492 of 2008 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur) Life Insurance Corporation of India Through Assistant Secretary L & HPF Department, Northern Zonal Office Petitioner Jeevan Bharti Building Cannaught Place New Delhi Vs Banwari Lal Yadav Son of Shir Mahadev Ram Yadav Resident of Pritampuri via Kanwat Respondent Tehsil Neem-ka-Thana Presently at Sawai Yadav Misthan Bhandar, Chopar Bazar Thoi via Kanwat District Sikar (Rajasthan) BEFORE: HONBLE MR JUSTICE V B GUPTA PRESIDING MEMBER HONBLE MRS REKHA GUPTA MEMBER For the petitioner Mr Sandeep Saxena, Advocate For the Respondent Mr Jitendra Mitrucka, Advocate PRONOUNCED ON 30th August 2013 O R D E R REKHA GUPTA Revision petition no.4525 of 2008 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the judgment and order dated 13.08.2008 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (the State Commission) in appeal no, 492 of 2008. The brief facts of the case as per the complaint of the respondent/ complainant are as follows: The respondent had taken an insurance policy on 28,03.1999 under Salary Saving Scheme from the petitioner. The policy number was 192002164. The premium under the said policy was regularly deducted from the salary of the respondent and deposited with the petitioner. There was no outstanding premium to be paid by the respondent to the department of the petitioner. On 30.06.2005, the limb of the right foot (panja) of the respondent was slashed as it was crushed under the wheels of the train while the respondent, boarding it, accidentally fell down. The respondent was brought to Neem Ka Thana in the train and he has admitted in Government Hospital for treatment. But the doctors of the hospital referred the respondent to SMS hospital, Jaipur, in view of the critical condition of the patient. The information of the accident was lodged on 30.06.2005 in the Daily Diary Report at GRP Police Station Neem Ka Thana. On 30.06.2005, the respondent was taken to SMS hospital where he was admitted and on 30.06.2005 itself after carrying out the complete examination of the respondent and in view of the serious condition of the foot of the respondent, the respondent was operated on the right foot on 30.06.2005 itself. The respondent remained under treatment at SMS Hospital, Jaipur, between 30.06.2005 to 20.10.2005 due to the said accident. The respondent incurred a sum of Rs.5,000/- on medicines, transportation and other eatables etc., and despite the treatment given to him, the right foot of the respondent could not completely recover and the Medical Board issued permanently disability certificate declaring 40% disability of the respondent. The respondent has become incapacitated to move due to that accident and he has become dependent on other persons for moving from one place to the other. The respondent gave the information of this said incident to the petitioner on 26.03.2006 and a letter was sent requesting them to release the sum of Rs.1.50 lakh, the amount of loss suffered. The respondent had also enclosed the hospital patient slip of SMS hospital, permanent disability certificate and the photograph showing disability with the said letter and the respondent has become absolutely incapable of moving with his right foot as he is 54 years of age and there is no possibility of his recovery in future and also the doctors have given the opinion that he will not completely recover from the loss of his foot. According to the rules of the Insurance Company, in case of disability, a sum equal to the sum assured under the policy shall be payable over a period of ten years in monthly instalments and if a claim arises under the policy before the expiry of ten years, the remaining instalments of disability benefit shall be paid with the claim and exemption from paying the future premiums shall also be given. Despite there being specific rules of the petitioner insurance company, the respondent has not been paid the said benefits by the petitioner and he has been sent the information dated 19.07.2006 about disallowing his claim. The claim of the respondent has been denied by the petitioner despite the respondent falling within the definition of disabled, therefore, the respondent has to undergo physical, mental and economic loss for which he is legally entitled to receive a sum of Rs.50,000/- from the petitioner. In their report, the petitioners/ opposite parties have denied the facts of the case as absolutely false and frivolous. In this regard, it is submitted that in terms of the conditions specified are the back page of the policy issued by the petitioner Corporation, the benefit of disability is not payable as the disability is not permanent and 100%. The percentage of disability has been declared at 40% by Junior Specialist (Ortho.),RCHC, Reegus (Sikar) and also according to the Medical Board Certificate on permanent disability issued by two other members. In such circumstances, the payment of disability benefit is not due. Hence, the complaint of the respondent is not maintainable and the same is liable to be dismissed. The petitioner admitted that the Medical Board issued a permanent Disability Certificate depicting 40% disability of the respondent and petitioner Corporation had informed the respondent about disallowing the claim vide their letter dated 19.07.2006. The petitioner submitted that the respondent is not 100% disabled and he is earning money by way of labour at present. Further, according to the disability related rules of the petitioner Corporation, the respondent was supposed to inform within 120 days of his becoming incapable, but the respondent informed about it on 26.03.2006 after a lapse of 266 days while he was operated upon on 30.06.2005. That the condition 10(a) governing the payment of disability benefit is as under: the disability above referred to must be disability which is the result of an accident and must be total and permanent and such that there is neither then nor a anytime thereafter any work, occupation or profession that the life assured involved in accident can ever sufficiently do or follow to earn to obtain any wages, compensation or profit. Accidental injuries which independently of all other causes and within 120 days from the happening of such accident result in the irrecoverable loss of the entire sight of both eyes or in the amputation of both hands at or above the wrist, or in the amputation of both feet at or above the ankles or in the amputation of one hand at or above the wrist and one foot at or above the ankle shall also be deemed to constitute such disability. Therefore, the Junior Specialists (Ortho.) RCHC, Reegus (Sikar) and also according to two other Members who have given their report stating 40% disability of the respondent. Under such circumstances, no amount is payable towards disability benefit. The senior officers of the petitioner corporation at Divisional Office, Jaipur, sympathetically considered the disability benefit claim of the respondent and finally, the decision was taken, the petitioner corporation informed the respondent about the decision vide their letter dated 19.07.2006 informing that the disability suffered by you do not falls within the specified category for which the accidental benefit is payable in case of disability as per the provisions of the corporation Under the circumstances, we regret to inform that accidental benefit is not admissible. The District Consumer Disputes Redressal Commission, Sikar, Rajasthan vide their order dated 22.02.2008 have observed that we have considered the above given condition of the policy taken by the respondent and made a perusal of the Disability Certificate adduced by the respondent specifying 40% disability caused by the accident. But in this case, the respondent has not received any injuries in terms of the above specified conditions. The limb of one of his foot has been stated slashed near the fingers. Hence, such injury is not included in the injuries specified under the policy. Therefore, the respondent is not eligible to recover any compensation under the policy or the injuries sustained by him in the accident. The District Forum dismissed the complaint. Aggrieved by the order of the District Forum, the respondent filed an appeal before the State Commission. The State Commission, however, came to entirely different conclusions on the eligibility of the respondent with regard to payment of disability benefit and while allowing the appeal, it observed that: in context of the above legal position, it is evident from the facts in the instant case that he right limb of the foot of the respondent was chopped near fingers and according to the opinion of Medical Board of Rajasthan Government, his permanent disability was 40%. The disability of the respondent is not of such a nature that the same may be cured in the future and for that reason, he is permanently disabled. The respondent is permanently disabled at right foot due to chopping of his limb of the right foot near the fingers and the functional incapability of the respondent is absolute. For that reason, in our view, the Insurance Company has not justifiably denied the claim of the respondent and he is entitled to claim compensation from the petitioners. Therefore, the conclusion arrived by the District Forum cannot be held legitimate. Hence, the appeal of the respondent is worth allowing on the foregoing grounds. Consequently, the appeal of the respondent is allowed setting aside the impugned order dated 22.02.2008. The complaint of the respondent is allowed directing the petitioner to pay the accidental benefit under policy no. 192002164 to the respondent with simple interest @ 9% per annum from the date of instituting the complaint upto 03.10.2007. Hence, the present revision petition. The main grounds for the revision petition are that: The State Commission has failed to appreciate that the injury to the respondent does not come strictly under the permanent disability as defined under Clause 10 (a) of the policy and therefore, he is not entitled for any accidental benefits. The State Commission has erred in law by not interpreting the clauses of the policy in accordance with the law laid down by the Full Bench (5 Members) of the Honble National Commission in the case of LIC of India vs Ramesh Chandra II (1997) CPJ 45 (NC) wherein it is held that to bring the case under the clause the permanent disability will only be deemed to have taken place if one hand at or above the wrist and one foot at or above the ankle are amputated or cut simultaneously. Since, in this case, only fore foot was amputated it would not come under the definition of permanent disability as mentioned in the policy. The constitution of the policy bond which is the basis of the contract of insurance, is a question of law and it is true and correct interpretation would give jurisdiction to the Fora to pronounce upon the deficiency in service, if any. The District Forum as well as the State Commission had no jurisdiction to go beyond the terms and conditions of the policy bond and could only order the payment of the disability benefit if it was specified event covered under Clause 10 of the conditions of the policy. The amputation of only one hand does not fall within the deeming definition constituting disability in terms of Clause 10 (a) of the policy bond and thus the impugned orders suffer from serious illegalities. The State Commission has exercised a jurisdiction not vested in it by law by giving new interpretation to the Condition 10 (a) of the insurance policy stating that it is not bringing out the intention of the parties in a proper manner. It is pertinent to mention here that in Chandmulls case the Constitution Bench of the Honble Supreme Court has very specifically stated that by interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because, it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. The relevant portion of the Judgment of the Constitution Bench of the Honble Supreme Court of India in the case of General Assurance Society Ltd., vs Chandmull Jain and Another AIR 1966 SC 164 (Para 19) is extracted as follows: The reasons of the rule appears to be that where parties agree upon certain terms which are to regulate their relationships, it is not for the court to make a new contract, however, reasonable if the parties have not made it for themselves. The State Commission has failed to consider that the Medical Boards Certificate on permanent disability depicts only 40% permanent disability and not total permanent 100% disability. Thus this case does not fall within the category of injuries which are treated as permanent and total disability in the policy conditions as per policy bond. The State Commission has wrongly come to this conclusion that the respondents disability (40%) comes under the total permanent disability (100%). It erred further by saying that the condition 10 (a) of the insurance policy does not defines the term total disability and the concept of total disability is different in respect of an ordinary person and for a skilled labour. The State Commission ought to have considered that the constitution of the policy bond which is the basis of the contract of insurance is a question of law and it is true and correct interpretation would give jurisdiction to the Fora to pronounce upon the deficiency in service, if any. The State Commission had no jurisdiction to go beyond the terms and condition of the policy bond and could only order the payment of the disability benefit if it was specified event covered under clause 10 of the conditions of the policy. The State Commission ought to have considered that a contract of the life assured is also a contract which is to be governed by the ordinary law of contract as it is held by the Honble Supreme Court of India in the case of P C Chacko and another vs Chairman, Life Insurance Corporation of India and another- III (2008) CPJ 78 (SC) which is extracted as follows: 18. While the parties entered into a contract of insurance the same shall subject to statutorily interdict be governed by the ordinary law of contract. We have heard the learned counsel for the parties and have gone through the records carefully. Learned counsel for the petitioner today filed the following documents, they are as under: (i) Memo of miscellaneous application (ii) Affidavit in support of application (iii) Documents (iv) Permanent Disability Certificate (v) Discharge Ticket of SMS Hospital (vi) Photograph of the applicant showing the injury (vii) Affidavit in support of documents. They have also filed some citations to support their case. As per the disability certificate dated 21.01.2006 issued by the Government of Rajasthan Medical and Health Department, The Medical Boards Certificate on Permanent Disability, the respondent Banwari Lal Yadav, has a right leg disability for the last six months due to amputation of fore foot. The aggregate percentage of permanent disability is over 40%. As per the SMS Medical College and Hospital, Jaipur, Discharge ticket, the respondent was diagnosed with Traumatic Amputation through fore foot MTP region (R) side. We find that each foot has three sub-divisions, fore foot which is the front part of the foot including toe mid foot and hind foot which includes the rear part of the foot including the heel. Metatarsophengeal joints (MTP Joint) are the joints in the fore foot between the metatarsal and proximal phalanges (i.e., bones of the digit or toes). Ankle on the other hand, is joint between foot and the leg. As per Rene Baumgartier and Hans Henmifluetz of the University of Munster, Germany, Department of Prosthetic and Orthotic and University of Zurich, Balgaest Switzerland, Department of Orthopaedic Surgery, Department of Prosthetic and Orthotics respectively, fore foot amputations are relatively minor operation if the hind foot is preserved. The difficulties of providing a prosthesis do not arise, as a rule correction of ordinary or sport shoes are sufficient after the operation. In this case, it is not disputed that his right foot had slashed near the toes as a result of the accident and for that reason while the disability is no doubt permanent and cannot be cured in future but the aggregate percentage of permanent disability as mentioned by the Medical Board is only over 40%. It is also a fact that as per clause 10 A, the respondent was supposed to inform the petitioner within 120 days of his becoming incapable due to disability and the amputation as per the complaint took place on 30.06.2005. However, the respondent has himself mentioned in his complaint that he gave information of the said incident to the petitioner only on 26.03.2006, with a letter requesting the petitioner to release the sum of Rs. 1.50 lakh the amount of loss suffered. This was after a lapse of 266 days. Constitution of the policy bond which is the basis of the contract of insurance, is a question of law and its true and correct interpretation would give jurisdiction to the Consumer Fora to pronounce upon the deficiency in service, if any. The District Forum as well as the State Commission have no jurisdiction to go beyond the terms and conditions of the policy bond and could only order the payment of the disability benefit if it was specified event covered under Clause 10 of the conditions of the policy. The counsel for the petitioner has given the following citations to support his contentions: LIC of India vs Ramesh Chandra 11 (1997) CPJ 45 (NC) Ajay Kumar vs LIC of India 1 (2007) CPJ 230 (NC) LIC of India vs D K Panchal 11 (2003) CPJ 102 (NC) LIC of India vs Lachman Ram IV (2006) CPJ 292 Branch Manager, LIC of India vs P V Varghese 1 (1999) CPJ 160 RP no. 2017 of 2007 LIC of India vs Prakesh Chandra decided by the NCDRC on 07.05.2008. 1077 of 2012 Dinkar Babasaheb Tandale vs M/s New India Assurance Co. Ltd., decided on 4.08.2012 RP no. 3123 of 2008 titled as LIC of India vs Shri Girraj Mehta, decided by NCRDC on 25.05.2010 RP no. 1669 of 2006 LIC of India vs Khazan Singh decided by NCDRC on 25.02.2010 RP no. 1068 of 2006 Lachmn Ram vs LIC of India decided by NCDRC on 02.02.2010 AIR 1966 SC pg. 1644 General Assurance Society Ltd., vs Chandumull Jain 1999 (6) SCC Pg 451 Oriental Insurance Company vs Sony Cheriyan (2009) 5 SCC 599 Vikram Greentech (I) Ltd., an Anr. Vs New India Assuance Co. Ltd.,decided on 01.04.2009. 2011 CTJ 11 (SC) (CP) Suraj Mal Ram Niwas Oil Mills (P) Ltd., vs United India Insurance Co. Ltd., and Anr. While the above quoted judgments apply to the present case (Supra), but we would like to draw specific attention to the two citations; i.e., LIC of India vs Ramesh Chandra, wherein it has been held that the case of the complainant is the amputation of one hand at or above the wrist but that is not independently deemed to be a disability as is covered since the coverage in the clause is only in cases of amputation of one hand at or above the writ and one foot at or above ankle. It bears repetition that the deeming clause constituting the disability will get attracted only if there was the amputation of one hand at or above the wrist and one foot at or above the ankle. If it is the amputation of one hand at or above wrist or the amputation of one foot at or above the ankle, then it does not by the fiction of the Clause 10 (a) constitute disability. The construction of the policy bond which is the basis of the contract of insurance, is a question of law and its true and correct interpretation would give jurisdiction to the Fora to pronounce upon the deficiency in service, if any. The District Forum as well as the State Commission had no jurisdiction to go beyond the terms and conditions of the policy bond and could only order the payment of the disability benefit if it was specified event covered under clause 10 of the conditions of policy. The amputation of only one hand does not fall within the deeming definition constituting disability in term of clause 10 (a) of the policy bond and thus the impugned orders suffer from serious illegalities. The impugned orders of the District Forum and the State Commission are hereby set aside and the complaint is dismissed leaving the parties to bear their own costs throughout. RP no. 3123 of 2008 Life Insurance Corporation of India vs Shri Girraj Mehta, wherein it was held as under: Time and again Honble Courts have cautioned that the courts should give true import of terms and conditions of policy, without making any addition or even stretching those terms and conditions. As has been noticed above, provision of clause 10 (b) of policy comprises of two distinct parts which are independent of each other; latter being only a deeming provision as even in case of loss of both hands at or above the wrists, or in the amputation of both feet at or above ankles, or in the amputation of one hand at or above the wrist and one foot at or above the ankle would constitute permanent disability. However, permanent disability, which would render the insured not capable to constitute such disability since there was amputation of only on hand of insured, that too, to the extent of 75% disability, rest part of terms and policy having been satisfied, insured would not be eligible to secure benefit of accident-cum-disability benefit policy. State Commission while interpreting terms of policy has totally misdirected itself, stretching terms to impermissible extent, presumably on emotional perception. Finding of State Commission being not sustainable as such is set aside and revision petition is accordingly, allowed with no order as to costs. In the case of Ajay Kumar vs LIC of India, the National Commission has held that it is very clear from the certificate given by the Railway authorities that disability is to the extent of 81% and it is partial. The letter of LIC also indicates that the disability is to the tune of 81%. Permanent/ total disability as per policy condition means (a) irrecoverable loss of the entire sight of both the eyes; (b) amputation of both the hands or above the wrists; (c) amputation of both feed at or above ankles. The certificate clearly shows amputation of the leg, but not the hand as per the clause, as the whole of ring and little fingers have been amputated, whereas the terminal phalnyx of right middle finger is amputated and stiffness of second phalnyx of the same finger is noticed. This means thumb and index finger are intact. The certificate of North Eastern Railway, Medical Department issued under Workmens Compensation Act also mentions disability to be partial, i.e., to the tune of 81%. Obviously, the petitioner has got compensation under Workmens Compensation Act and taking into consideration the disability to be partial and is to the tune of 81%. From any stretch of imagination this cannot be construed as permanent/ total (100%) disability. In this connection, it is useful to refer to the decision of this Commission in LIC of India vs Ramesh Chandra II (1997) CPJ 45 (NC): 1997 (2) CPR 8 (NC), wherein it is held that: the disability above referred to must be disability which is the result of an accident and must be total and permanent and such that there is neither then nor at any time thereafter any work, occupation or profession that the life assured can even sufficiently do or follow to earn or obtain any wages, compensation or profit. Accident injuries which independently of all other causes and within 120 days from the happening of such accident result in the irrecoverable loss of the entire sight of both eyes or in the amputation of both hands at or above the wrists or in the amputation of feet at or above ankles, or in the amputation of one hand at or above the wrist and one foot at or above the ankle shall also be deemed to constitute such disability. Accordingly, the revision petition is dismissed. There shall be no order as to costs. In view of the above, we are of the view that the respondent had not suffered permanent disability entitling him to claim the amount under the policy. The State Commission has erred in taking a contrary view. Accordingly, the revision petition is allowed and the order of the State Commission is set aside and the complaint is dismissed with no order as to cost. Sd/- ..................................J [ V B Gupta ] Sd/- ....................................
[ Rekha Gupta ] satish