BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

F.A.No.448  of 2012 AGAINST C.C.No.NO.69 OF 2011 DISTRICT FORUM NALGONDA

Between   

The Oriental Insurance Co.Ltd.,
V.T.Road, Ramagiri Nalgonda
rep. by its Branch Manager

                                                Appellant/opposite party No.1

                        A N D

1.   Vinukonda Bheesmachary
S/o Bramha Chary, aged 35 years,
R/o Narayana Pur Village,
Nalgonda Dist.
                                                   Respondent/complainant

2.   M/s New Balaji Electricals and House
33 KV A Grade Licensed Holder No.A/2392-1667
Prakasham Bazar, Nalgonda Town & Dist.

Respondent/opposite party No.2

Counsel for the Appellant              M/s M.Ramgopal Reddy

Counsel for the Respondents         M/s  V.Gourisankara Rao(R1)

 F.A.No.953  of 2012 AGAINST C.C.No.NO.69 OF 2011 

Between   

Vinukonda Bheesmachary
S/o Bramha Chary, aged 37 years,
R/o Narayana Pur Village and Mandal
Nalgonda Dist.                                    Appellant/complainant

                        A N D

1.   The Oriental Insurance Co.Ltd.,
V.T.Road, Ramagiri Nalgonda
rep. by its Branch Manager

2.   M/s New Balaji Electricals and House
33 KV A Grade Licensed Holder No.A/2892-1667
Prakasham Bazar, Nalgonda Town & Dist.

Respondents/opposite parties

Counsel for the Appellant              M/s V.Gourisankara Rao

Counsel for the Respondents         M/s  M.Ramgopal Reddy

  QUORUM:        SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

                                                &

                        SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

                     MONDAY THE TWENTY THIRD DAY OF SEPTEMBER

                                  TWO THOUSAND THIRTEEN

    Oral Order ( As per R.Lakshminarsimha Rao, Member)
           ***

1.             Both appeals are directed against the order of the District Forum. The opposite party no.1 has filed appeal, F.A..No.448 of 2012 challenging the order of the District Forum whereas the complainant has preferred appeal, F.A.No.953 of 2012 contending that the amount awarded as compensation by the District Forum is inadequate. For the sake of convenience,  the parties are referred to as they are arrayed in the complaint.

2.             The complainant was under the employment of the opposite party no.2 which is a Firm and obtained ‘Janata Personal Accident Policy ‘ from the opposite party no.1-insurance company covering risk related to accident to the employees who included the complainant. The sum assured under the insurance policy is `2,00,000/- in case of death and equal amount in the event of total permanent disability sustained by the  35 employees of the opposite party no.2. The complainant lodged claim with the opposite party no.1 on the premise that he sustained disability to an extent of 38.75% due to electric shock and the opposite party no.2 repudiated the claim on the ground that partial permanent disability is not covered by the scope of the JPA policy which led the complainant to approach the District Forum by filing the CC.

3.             The complainant submitted that he worked as Assistant Lineman under the employment of the opposite party no.2 and the opposite party no.2 was carrying out electrical work relating to APCPDCL on contract basis. The complainant submitted that on 15.03.2010 he was instructed by the opposite party no.2 to check power supply to Bio-diesel Plant and on being assured that there was no power supply, he got on the top of the electric pole and while checking the 33 KV live wire he  sustained electric shock and fell down from the electric pole. The complainant submitted that he became unconscious and was shifted to NIMS, Hyderabad where he had undergone surgery for fracture of Traumatic D-12. The complainant submitted that he sustained disability to an extent of 38.75% and the opposite party no.2 repudiated his claim on the premise that permanent partial disablement is not covered under JPA policy.

4.             The opposite party no.1 resisted the claim on the premise that the complainant suffered disability to an extent of 38.75% only and that as per clause ‘C’  “ if such  injury shall within one year of its occurrence be the sole and direct cause of the total irrecoverable loss of sight of one eye or total irrecoverable loss of USE of a hand or foot, 50 percent of the capital sum insured state in the schedule hereto” and as per the clause ‘D’ if such injury shall within one year of its occurrence be the sole and direct cause of permanently totally and absolutely disable the insured from engaging in being occupies with or giving attention to any employment or occupation of and description whatsoever, the capital sum insured stated in the schedule’.  As per the conditions of the policy the complainant is not entitled to any compensation.  As per the terms and conditions of the policy, the complainant also did not intimate about the incident to the insurance company within the stipulated time of one month. 

5.             The complainant filed his affidavit and the documents, Exs.A1 to A5.  On behalf of the opposite parties, the Divisional Manager of the opposite party no.1 and the proprietor of the opposite party filed their respective affidavits and Ex.B1, the policy schedule.

6.             The District forum allowed the complaint directing the opposite party no.1 to pay `77,500/- towards the amount covered under Ex.B1 together with `5,000/- towards compensation and costs of `2,000/-.

7.             Feeling aggrieved by the order of the District Forum, the opposite party no.1 preferred appeal contending that as per clauses ‘ C’ and ‘D’  the complainant is not entitled to claim amount and that as per Ex.A3, the medical certificate issued by NIMS there is no disability was mentioned and also there is  no signature and seal of the authority on the medical certificate.  The disability was assessed to an extent of 38.75% by the authority as per clauses ‘C’  ‘D’.     The complainant was also preferred appeal for enhancement of the claim amount.   

8.             The points for consideration are:

i)             Whether the complainant is entitled to the sum assured under the insurance policy?

ii)           Whether the opposite party no.1  rendered deficient service in repudiating the claim of the complainant?

iii)          To what relief?

9.             POINTS NOs 1& 2:               The complainant at the relevant time was under employment of the opposite party no.2 which obtained Janata Personal Accident Policy from the opposite party no.1-insurance company covering risk due to accident to its 35 employees during the course of their employment. The terms of the insurance policy provide for coverage of risk of the specified 35 employees of the opposite party no.2 during the course of their employment.  The opposite party no.2 had contended that the scope of the policy is linked to the injuries sustained by its employees during the course of discharging their legitimate duties.    

10.            The opposite party no.2 had made a categorical statement that it had not given instructions to the complainant to climb the electric pole on 15.3.2010 to check the power supply to Bio-diesel Plant. The complainant stated that he was assured by the employees of the opposite party no.2 that there was no power supply.  He had not stated the names of the employees who assured him that there was no power supply at the time he climbed the electric pole. The complainant had not informed the concerned before climbing the electric pole. Thus, it can be concluded that the complainant was not acting during the course of employment which is sina qua non   to claim the sum assured in terms of the insurance policy.

11.            The complainant claimed the sum assured of `2,00,000/- basing on the disability certificate issued by NIMS where he had undergone surgery for D-12 fracture. The certificate indicates the disability the complainant sustained as 38.75. The District Forum awarded a sum of `77,500/- on the premise that the amount commensurate to the percentage of disability sustained by the complainant. It has been consistently contended by the opposite party no.1-insuarnce company that the complainant is not eligible to claim the amount on several grounds among which the coverage of risk is subject to the complainant sustaining total permanent disability . As per the disability certificate issued by NIMS the complainant sustained partial permanent disability which is not covered by the terms of the insurance policy.

12.            The complainant filed another disability certificate dated 16.11.2011 stated to have been issued by Government of Andhra Pradesh and not the NIMS where he was treated and obtained the disability certificate earlier. The certificate filed in the appeal shows percentage of disability to the extent of 90%.  The learned counsel for the opposite party no.2 raised objection that the certificate was not filed before the District Forum and there is no whisper in the complaint about such certificate. The complainant had not explained as to how he can file the document without showing any reason for not filing it before the District Forum. Even otherwise, the complainant had not mentioned about the certificate in the complaint or in his affidavit filed before the District Forum. The complainant had not shown any circumstance indicating treatment subsequent to his discharge from NIMS. The complainant filed the certificate in order to fill up the lacuna and to get over the infirmity in the order passed by the District Forum. As such the certificate cannot be looked for any purpose.

13.            The learned counsel for the complainant has relied upon the decision of the Hon’ble National Commission in ‘Ashok Kumar B Arora vs Vasudev Hotusing Nagdev’ I(2004) CPJ 9. In this case, the complainant and the opposite party no.1 filed two appeals against the order of the Gujarat State Commission which allowed the complaint and awarded an amount of Rs.50,000/- as compensation to the complainant on account of his sustaining disability to the extent of 29.5% which is permanent disability. The State Commission held that the complaint was filed within the period of limitation. That was not a case related to insurance claim. This decision does not help the case of the complainant as partial permanent disability in the facts of the said case was held as ground for granting compensation.  

14.            The learned counsel for the opposite party no.1-insurance company has placed reliance on the following decisions;

i)             Ankit Goyal vs The New India Assurance Company Ltd  2012NCJ 97.

ii)           United India Insurance Company Ltd vs Sona Spices Pvt Ltd 2010 NCJ 896.

15.            In Ankit Goyal (supra), the Hon’ble National Commission held that as the petitioner violated the terms of the insurance policy, he is not entitled to the amount assured.  The National Commission confirmed the order of the State Commission on the premise of violation of terms of the insurance policy as to the valid and effective driving license to drive the insured vehicle as under:

“From the above provision, the State Commission has rightly inferred that there is a distinction between light motor vehicle and transport vehicle.  A transport vehicle may be a LMV but to drive it, a distinct license is required to be obtained.  The State Commission has also referred to Section 14 of the Act to highlight another distinction viz. currency of the license to drive a transport vehicle. It is for a period of three years, while in the case of other licenses, the currency can range from 5 to 20 years.  In the instant case the driving license was for driving LMV–Non Transport vehicle.  The currency of the driving license was from 4.5.2001 to 3.5.2021, i.e. for a period 20 years. We therefore, agree with the decision of the State Commission to reject the contention of the appellant (present revision petitioner) that since the gross un-laden weight of the vehicle did not exceed 7,500 kg, the holder of this license would be entitled to drive the vehicle under Section 2 (21) of the Motor Vehicle Act, 1988.”.

26.            In Sona Spices (supra), the National Commission dealt with a case where there were two surveyors’’ reports and held that the first surveyor’s report has to be accepted and it can be disagreed where there should be sufficient ground. The National Commission had set aside the relief of compensation on the premise that interest was awarded. The National Commission insisted on construction of terms and conditions of the insurance policy with reference to the stipulation contained in the policy. It was held:

“Reliance was also placed upon another decision of the Supreme Court in the case of Oriental Insurnace Co. Ltd. vs. Samayanallur Primary Agricultural Coop. Bank 1999 (8) SCC 543 wherein the Supreme Court examined the question in regard to the strict nature of the terms and conditions of an insurance policy and by doing so, the State Commission held that the terms and conditions of the insurance policy has to be construed with reference only to the stipulation contained in it and no artificial meaning can be given to the words appearing in it.  There cannot be possibly any quarrel with the proposition of law laid down in the above said authorities and going by the very strictly interpretation of the provisions of clause 8 of the terms and conditions of the policy, perhaps it can be said that a claimant forfeits his right of any claim under the policy, once it is found to be based on fraudulent or false declaration or fraudulent means.  The question is as to how far the said legal position help the appellant-insurance company in the present case.  In our view, none of these authorities to lay down that even in case where the claimant insured raised an inflated claim, which he has not been able to substantiate or which in the opinion of the insurer is exaggerated or based on some doubtful material like bills etc., in that situation, the insured should be non-suited altogether even qua the part of the claim which the company has itself found to be genuine or beyond suspicion.”.

27.            Thus, the terms and conditions of the insurance policy have to be interpreted with reference to the stipulation made therein and no artificial meaning can be given to the words appearing in the insurance policy. Such being the position,   the terms of the insurance policy,     stipulate that the claim should be made subject matter of arbitration or a before court within 12 months from the date of repudiation. The opposite party no.1-insurance company repudiated the claim on 19.4.2010. The complainant has filed the complaint on 30.8.2011.  Thus, if the terms of the insurance policy are strictly considered with reference to the stipulation provided therein, the complaint is filed beyond the period stipulated in the policy.  The stipulation as to shorten the limitation period against the limitation period provided by the Limitation Act or any other statute is approved by the Apex Court. Thus, the complaint is not maintainable on the limitation aspect.

28.            The order of the District Forum is contrary to the facts of the case and the District Forum failed to appreciate the terms and conditions of the insurance policy in correct perspective. The District Forum failed to interpret the terms of the insurance policy in terms of the stipulation laid therein. As such the order of the District Forum is liable to be set aside.

29.            In the result, the appeal , F.A.No.448 of 2012 is allowed. Consequently, the complaint and the appeal, F.A.No. 953 of 2012 are dismissed. The parties shall bear their own costs.

                                                                          Sd/-

                                                                        MEMBER

                                                                           Sd/-

                                                                        MEMBER

                                                                    Dt.23.09.2013

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