AT HYDERABAD.

F. A. 1298/2009 against C.C. 58/2008, Dist. Forum, Nalgonda.

Between:

Nerlakanti  Venugopal

S/o. Arjun, Age: 43 years

Govt. Teacher,

H.No. 4-5-71, Akkachalma

Nalgonda Town & Dist.                                ***                         Appellant/

Complainant

                                                                    And

1.  Road Safety Club Pvt. Ltd.

2A, Prakasham Road,

T. Nagar, Chennai-600 017

Rep. by its authorized Signatory

2.  The Branch Manager

Sri Ram Chits, Nalgonda

3.  Bajaj Allianz General Insurance Company Ltd.

Regd. Head Office, G.E. Plaza

Airport Road, Yerwada

Pune-411 006.                                            ***                         Respondents/

Ops.

Counsel for the Appellant:                          P.I.P.

Counsel for the Resps:                               Mr. V. Ramesh -  R1

                                                                   Mr. N. Mohana Krishna -  R3

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

                 SMT. M. SHREESHA, MEMBER

WEDNESDAY, THIS THE  SEVENTH DAY OF JULY TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                Appellant is unsuccessful complainant.

2)                 The case of the complainant in brief is that R1   Road Safety Club while enlisting the members extended the personal accident policy for 8 years in collaboration with R3 Bajaj Allianz General Insurance Company.    He joined as a member in R1 club on payment of Rs. 4,000/-.  Accordingly insurance policy was issued by R3 covering the period from 31.7.2006 to 31.7.2007.  While so on 20.5.2007 he met with road accident sustained fracture on the right leg.    On a report the police registered a case in crime No 242/2007.  He was shifted to government hospital, Nalgonda,   later to a private hospital where the doctors after treating him gave  certificate mentioning 50% permanent disability.   When he submitted the claim R3 offered only Rs. 25,000/- on the ground that it was only temporary total disability and does not fall under the definition of permanent disability.    There upon he got issued  legal notice demanding compensation of Rs. 3 lakhs towards medical and other expenses and Rs. 50,000/- towards loss of income together with interest and costs for which they gave reply with false allegations.    Therefore, he filed the complaint claiming the above said amounts.

3)                R1 resisted the case.  While denying the allegation of accident, registration of case etc., however admitted that it had extended the benefit of insurance to its members.   When it received legal notice it has sent voucher to the complainant for  subscribing his signature but it was not returned.     In fact he earlier met with accident on 14.1.2003 sustained injuries and filed C.D. 53/2007.  Therefore he was put to proof that he sustained some other injuries in the alleged accident on 20.5.2007.   The complainant never informed about the accident.  For the first time he informed by letter Dt. 18.8.2007.   When it has received advance voucher for Rs. 25,000/- for which R3 settled the claim, it has forwarded the same to the complainant, however it did not receive after subscribing his signature.     The complainant is not a consumer.    At any rate, there is arbitration clause.  The Dist. Forum has no jurisdiction to entertain the complaint.   The terms and conditions stipulate the jurisdiction to courts at Chennai.    There was no deficiency in service on its part, and therefore prayed for dismissal of the complaint with costs. 

4)                R2 did not choose to contest. 

5)                R3 insurance company equally resisted the case.    However, it admitted issuance of group personal accident policy covering the risk of the complainant also.    No doubt the complainant had informed about the injuries sustained on 20.5.2007 in a road accident, however, it was unaware of registration of case by the police and later his shifting to government hospital at Nalgonda, and further treatment in a private hospital.    He did not submit the original investigation report, discharge summary and other medical records etc.,  to show that he had sustained 50% permanent total disability due to  injuries.  In fact after perusing the record, it had offered an amount of Rs. 25,000/- towards claim as it was temporary disability where a weekly compensation of Rs. 1,000/- for 25 weeks could only be granted.    The definition of permanent total disability and permanent partial disability were clearly mentioned in the policy certificate.    While the medical board has issued  certificate stating 50% partial disability,  he cannot claim the amount under the head of permanent disability.    Therefore it prayed for dismissal of the complaint with costs. 

6)                The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A20 marked, while R1 filed the affidavit evidence of N. Mani and R3 filed the affidavit evidence of   its Senior Executive S. Raghu, and got Exs. B1 to B7 marked. 

7)                The Dist. Forum after considering the evidence placed on record opined that the certificate issued by the medical board shows that  it was only  temporary disability, therefore he was entitled to Rs. 25,000/- as per the terms of the  agreement, and accordingly  directed  R3 to pay the same,  while  dismissing the rest of the claim.

8)                Aggrieved by the said decision, the complainant preferred the appeal contending that the medical board had categorically confirmed that the disability was 50% and it cannot be termed as temporary disability, and therefore prayed  that compensation as claimed by him  be granted. 

9)                The point that arises for consideration is whether the order of the Dist Forum is vitiated by mis-appreciation of fact or law?

10)              It is an undisputed fact that R3 Bajaj Allianz insurance company gave Ex. A3 Group Personal Accident policy he being a member of  R1 Road Safety Club valid from 31.7.2006 to 30.7.2007 vide Ex. A3.   Earlier he had sustained fracture of left leg got  40% of the insured amount for permanent disability for which he filed C.D. 53/2007.    Evidently he again met with accident on 20.5.2007 for which a case in Crime No.  242/2007 was registered vide Ex. A4.    He had taken treatment.   The medical officer who examined the complainant noted that he had “ 1)   deforming right leg,  blunt  brew sis    2) lacertian   3)  abrasion    ½’ x ½’  on left hand 4) abrasion ½’ x ½’  on left shoulder and forehead.    His injury was mentioned as  grievous.   A charge sheet was filed  after investigation  against  the driver of Hero Honda  evidenced under charge sheet Ex. A6. 

11)               Importantly the medical board  for  physically handicapped, Nalgonda  examined him on   3.9.2007  opined that the disability was 50% being permanent fracture, foot drop….. vide Ex. A7 and another medical board certificate  Ex. A20 dt.  14.7.2009  a repetition  of  very same disability mentioned in Ex. A7. 

12)                  In Ex. B1  Group Personal Accident Policy  the scope and coverage of the amount assured were made a mention:-  “that  if such accidental  injury shall within 12 calendar months of its occurrence be  the sole and direct cause of the total and  irrecoverable  loss  of sight of both eyes/two hands/two feet/one hand and one foot/sight  of one eye and one hand or one foot  an amount of Rs. 3 lakhs would be paid and for loss of one eye or one hand  or one foot an amount of Rs. 1,50,000/- would be paid.” 

                    “If  accidental injury  shall within 12 calendar months  of its occurrence  be the sole and direct  cause of the total  and  irrecoverable  loss  of use  or the actual loss by physical separation  of the following, the percentage of  the capital sum insured  of Rs. 1 lakh  as indicated  below shall be payable. 

                                                          % of capital sum insured.

Loss of toes  - all great                                           20%

             Great  - both phalanges                                        5%

             Great  - both phalanx                                   2%

Other than great if more than toe lost each                      1%

Loss of hearing  - both ears                                      50%

Loss of  hearing – one ear                                                15%

Loss of four fingers and thumb of one hand             40%

Loss of four fingers                                                          35%

Loss of thumb  - both phalanges                                       25%”

Evidently the injury  that was sustained by the complainant is covered by the said definition.    It cannot be termed as  permanent total disability.    It is not a case where  the injury was total and irrevocable.    The medical board certified that  the disability was  50%.    At clause 3  under “permanent partial disability  they contemplate payment of  50% of the amount.”    Undoubtedly, he had permanent  partial disability of 50%  as confirmed by the medical board.  It cannot be said that it is a temporary  disability.    The insurance company classifying it as temporary partial disability  intended to pay Rs. 25,000/-  on the ground that he was entitled to a weekly compensation of  Rs. 1,000/- for 25 weeks which he refused to receive and filed the complaint.  The medical board  did not say that it was  temporary total disablement.    What all they stated is that  it was  50% permanent partial disablement.    Since the capital sum insured  was Rs. 1 lakh  under the above head,  he was entitled to  Rs. 50,000/- being permanent partial disability vide Ex. A7 & A20.    The complainant however, failed to prove that  it comes under  permanent total disability entitled to claim Rs. 3 lakhs.   His injury does not fall under the above said clause which we have mentioned earlier. 

14)               In the result the appeal is allowed in part, consequently the complaint is allowed in part.   R3 insurance company is directed to pay Rs. 50,000/- to the complainant  with interest @ 9% p.a., from  27.3.2008,   on which the date the settlement was made  by the insurance company,   till the date of realization together with costs of Rs. 5,000/-.  The complaint against R1 & R2 is dismissed.    Time for compliance four weeks. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.  07. 07.  2010.

*pnr

“UP LOAD – O.K.”