State Consumer Disputes Redressal Commission
United India Insurance Company Ltd. vs Ch. Bhaskara Rao on 16 February, 2010
FA1674 of 2007.html BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD FA 1674/2007 against C.C. 148/2006, Dist. Forum, Karimnagar. Between: United India Insurance Company Ltd. Ramagundam Division Office P.B. No. 36, Medipally Road Jyothinagar, Ramagundam Karimnagar Rep. by its Divisional Manager. *** Appellant/ Opposite Party And Ch. Bhaskara Rao S/o. Venkateswar Rao R/o. Shantinagar Fertilizer City, Godavari Khani Ramagundam Mandal Karimnagar Dist. *** Respondent/ Complainant. Counsel for the Appellant: M/s. S. Shravan Kumar Counsel for the Resps: M/s. J. Prabhakar. CORAM: HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT SMT. M. SHREESHA, MEMBER
& SRI K. SATYANAND, MEMBER TUESDAY, THIS THE SIXTEENTH DAY OF FEBRUARY TWO THOUSAND TEN Oral Order: (Per Honble Justice D. Appa Rao, President) *****
1) The opposite party insurance company preferred the appeal against the order of the Dist. Forum directing it to pay Rs. 2,00,000/- covered under the policy together with interest and costs.
2) The case of the complainant in brief is that he took Janata Personal Accident policy (JPA) for a sum of Rs.
2 lakhs covering the period from 7.8.1996 to 6.8.2006. While so on 18.6.2001 while he was proceeding on his motor vehicle at about 6.30 a.m. he met with accident and sustained injuries. On report the police registered a case in crime No. 65/2001 u/s 337 IPC against the offending driver of a jeep and later after investigation filed charge sheet u/s 337, 338 IPC. He was shifted to Sai Vani Hospital at Domalguda, Hyderabad, and was treated as in-patient from 18.6.2001 to 2.7.2001 for the following injuries.
i.
Abdominal injury, complainant went into shock due to perforated bowel.
ii.
Compound comminuted fracture and dislocation of shoulder joint.
iii.
Compound comminuted fracture of shaft of right femu.
iv.
Fracture of both bones of right leg (vascular injury) He developed Ankylosin and the right foot lost sensation.
His disability was assessed at 60% by the Dist. Medical Board. He was a mechanic and unable to attend to his work, lost his source of sustenance, and thus he became permanently disabled. When he came to learnt that his case also comes under the terms of the policy he claimed the amount by filing his claim, on 22.11.2005 however, the same was repudiated on 14.2.2006. Since he sustained permanent disability and was entitled to compensation he filed the complaint claiming Rs. 2 lakhs covered under the policy together with interest @ 18% p.a., from the date of intimation i.e., on 5.8.2005 together with compensation of Rs. 5,000/- and costs of Rs. 1,000/-.
3) The insurance company resisted the case denying each and every fact. However, it admitted that it had issued JPA policy for Rs. 2 lakhs subject to terms and conditions incorporated in the policy. The complainant was put to strict proof that he sustained fractures in an accident that occurred on 18.6.2001. While the accident took place on 18.6.2001 he preferred his claim on 5.8.2005 four years after the accident. The claim shall have to be made within six calendar months of occurrence when it resulted in permanent and total disablement. The claim was barred by limitation besides that he was not permanently disabled and therefore he was not entitled to any compensation. There was no deficiency in service on its part and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A12 marked, while the insurance company filed the affidavit evidence of its Divisional Manager and got Exs. B1 to B4 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the complainant had sustained fractures in an accident and that he had 60% disability, and opining that the public authority should not resort to the plea of limitation to deny the just claim, allowed the complaint directing it to pay Rs. 2 lakhs together with interest @ 9% p.a., from the date of complaint and Rs. 1,000/- towards costs.
6) Aggrieved by the said decision, the insurance company preferred the appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective. It ought to have seen that the complainant did not suffer total permanent disability as per the conditions of the policy, and therefore prayed that the appeal be allowed.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact and law?
8) It is an undisputed fact that the complainant had taken Ex. B1 JPA policy for Rs. 2 lakhs covering the period from 7.8.1996 to 6.8.2006. The complainant has undoubtedly met with accident on 18.6.2001 while he was proceeding on his motor cycle, a driver of the jeep came from opposite direction dashed against him for which he sustained injuries in his hands and legs apart from other grievous injuries evidenced under medical record Ex. A4. The police also registered a case in Crime No. 65/2001 u/s 337 IPC evidenced under Ex. A2 later filed final report Ex. A7. It is also not in dispute that he was having a valid driving license evidenced under Ex. A8. When he subjected himself to Dist. Medical Board, Karimnagar, the Members after examining the complainant opined that the disability was 60% permanent partial vide Ex. A12. Alleging that he was not aware that his disability was covered under the above said policy, and due to ignorance he could not intimate the accident immediately, however intimated the same in August, 2005 after four years and submitted the claim on 22.11.2005 evidenced under Ex. A10.
9) The conditions appended to the insurance policy mandates the claimants to make the claim within one calendar month after the event which may give rise to a claim under the policy. It reads as follows :
Condition No. 1) Upon the happening of any event which may give rise to a claim under this policy the insured shall forthwith give notice thereof to the company, unless reasonable cause is shown the insured should, within one calendar month after the event which may give rise to a claim under the policy give written notice to the company with full particulars of the claim.Condition No. 2
(d) reads as follows :
If such injury shall within six 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 the capital sum insured stated in the schedule.
The claim was denied on two grounds (i) that the claim was not made within six calendar months and (ii) that the disability does not cover the above said condition. In this regard clause b & c also could be considered in order to appreciate the contentions taken by the insurance company.
2(b): - If such injury shall within six calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of sight of both eyes, or of the actual loss by physical separation of two entire hand or two entire feet, or of one entire hand and one entire foot, or of such loss of sight of one eye and such loss of one entire hand or one entire foot, the capital sum insured stated in the schedule.
2(c):-
If such injury shall within six calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of sight of one eye or of the actual loss by physical separation of one entire hand or one entire foot fifty percent (50%) of the capital sum insured stated in the schedule.
The complainant had admittedly sustained compound comminuted fracture and dislocation of shoulder joint, and fracture of both bones of right leg. The medical board consisting of experts however opined that the disability was only 60%. They never stated that it was permanent, total and absolute disability disabling the insured from engaging in being occupied with or giving attention to any employment or occupation of any description.
The complainant also did not let in any evidence in this regard. It is not a case where the complainant was an illiterate. He was a literate and in fact he was working as mechanic.
10) He files a complaint on 21.6.2006, for the accident that took place on 18.6.2001, five years there after. He even violated condition No. 2 (d) mentioned which we have extracted above. The medical record shows that he was discharged from the hospital on 2.7.2001 vide Ex. A11. It was no where stated that he was totally disabled as such he could not prefer any claim within a reasonable period on his discharge. On the other hand it shows that his disability was only 60% wherein he could move. He is also attending to his work and eking out his livelihood. Even otherwise, the medical board assessed the disability at 60%. It was not permanent, total and absolute disability disabling him from attending to his occupation.
11) It is not in dispute that a policy of insurance is purely a contract between the insurer and insured. Both parties are bound by the terms and conditions of the policy. The relevant portion of the policy states that the Insurance Company shall indemnify the insured if he sustains the following bodily injury resulting solely and directly from the accident:
(a) If such injury shall within six calendar months of its occurrence be the sole and direct cause of the death of the insured the capital sum insured stated in the schedule hereto.
The amount payable under this clause shall be paid to the nominee shows on the policy.
(b) If such injury shall within six calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of sight of both eyes, or of the actual loss by physical separation of two entire hands or two entire feet, or of one entire hand and one entire foot, or of such loss of sight of one eye and such loss of one entire hand or one entire foot, the capital sum insured stated in the schedule hereto.
(c) If such injury shall within six calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of sight of one eye or of the actual loss by physical separation of one entire hand or one entire foot fifty percent (50%) of the capital sum insured stated in the schedule hereto.
(d) If such injury shall within six calendar months of its occurrence by the sole 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 the capital sum insured stated in the schedule From the above, it may be seen that Clause a deals with the case of a death. Clause b deals with such injury on account of which there was loss of sight of both eyes, actual loss by physical separation of two entire hands or two entire feet etc. Clause d deals with injury of permanent disability . Clause c deals with injury on account of which there is loss of sight of one eye, or physical separation of one entire hand or one entire foot. Since the disability was not permanent, total and absolute and it was only 60% the complainant was not entitled to the amount covered under the policy. We need not reiterate the proposition that the parties are bound by terms and conditioned mentioned in the policy and the injury sustained by the complainant does not come within any of the clauses mentioned above. The Dist.
Forum clearly exceeded in its jurisdiction in granting compensation. Even otherwise it was barred by limitation.
12) The Supreme Court in State Bank of India Vs. B.S. Agriculture Industries (I) reported in (2009) 5 SCC 121 directed the Fora or Commission to examine the question of limitation even if it is not taken as a ground. The claim was made after five years of the accident. The limitation provided under Section 24A of Consumer Protection Act is two years.
13) In the result the appeal is allowed and the order of the Dist. Forum is set-aside. Consequently the complaint is dismissed. No costs.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER
3) ________________________________ MEMBER Dt. 16.
02. 2010.
*pnr UP LOAD O.K.