FA.No.301/2010 against CC.No.58/2008 District Consumer Forum, Kurnool.

Between:

Vanka Subba Sekhar,

S/o.Vanka Balaiah, Jillela Village,

Gospadu Mandal,

Kurnool Dist.

…Appellant/Complainant.

And

1.United India Insurance Company Ltd.

   Rep. by its Branch Manager,

   Branch office at 2-415-B, N.K.Road,

   Nandyal.

2.United India Insurance Company Ltd.

   Rep. by its Divisional Manager,

   Divisional Office, Kurnool.

…Respondents/Opp.Parties.

Counsel for the Appellant        :  Mr.U.Pratap Rao.              

Counsel for the Respondents :   Mr.S.Shravan Kumar.               : 

QUORUM:  THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,

AND

SRI T. ASHOK KUMAR, HON’BLE MEMBER.

THURSDAY, THE TWENTY SECOND DAY OF SEPTEMBER,

TWO THOUSAND ELEVEN.

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

*******

1.         The appellant is an unsuccessful complainant. 

            The case of the complainant in brief is that he took a Group Janata Personal Accident Insurance Policy for a sum of Rs.1,00,000/- covering the period from 31.07.2003 to 30.07.2008.  While so, he met with an accident on 27.02.2004 and sustained grevious injuries.  He was unable to move or attend to his duties.  He sustained permanent total disability.  When the claim form was submitted on 28.12.2005 along with the original insurance policy, handicap certificate, FIR, remand report, etc. it was not settled.  Therefore, he filed the complaint claiming Rs.1,00,000/- towards policy amount together with interest at 18% per annum from the date of accident, Rs.20,000/- towards compensation and costs.

2.         The opposite parties-Insurance Company resisted the case.  While admitting the issuance of policy, it denied that when the policy was in force the complainant met with a road accident on  27.02.2004 and sustained grevious injuries.  As per the terms and conditions of the policy, if any claim arises for the policy, the relevant documents along with the claim form should be furnished to it within 12 calendar months from the date of accident in order to settle the claim.  On 28.09.2007 it had addressed a letter asking the complainant to submit the required documents.  The complainant failed to submit the claim form along with required documents in order to settle the claim.  Finally on 30.11.2007 i.e. after lapse of three years from the date of alleged accident, the complainant submitted the claim form but failed to submit the medical record to prove the disability and manner of treatment availed by him.  The disability was not the direct cause of the accident.  The claim form reveals that he availed treatment in Govt.General Hospital, Guntur and Kurnool from the date of accident upto 23.06.2004 and there was no record to show that he had suffered permanent disability.  The claim of the complainant was barred by limitation as it was made after lapse of three years from the date of alleged accident. It prayed for dismissal of the complaint with costs. 

3.         The complainant in proof of his case filed his affidavit evidence and got the documents marked as Exs.A.1 to A.6, while the opposite parties-Insurance Company filed affidavit evidence of opposite party No.2 and got the documents marked as Exs.B.1 to B.3.

4.         The District Forum after considering the evidence placed on record opined that the complainant could not prove that the disability was total, and that the 50% disability that said to have occurred was not the direct cause of the accident, and therefore, dismissed the complaint.

5.         Aggrieved by the said order, the complainant preferred the appeal contending that the District Forum did not appreciate either the facts or law in its correct perspective.  It ought to have seen that the claim was made by submitting all the requisite documents and the Insurance Company had kept quiet without settling the matter.  Therefore, he prayed that the complaint be allowed.

6.         The point for consideration is whether the order of the District Forum is vitiated by mis-appreciation of facts or law in this regard?

7.         It is an undisputed fact that the complainant had taken a Group Janatha Personal Accident Policy bearing No.051102/42/03/00119 for Rs.1,00,000/- covering the period from 31.07.2003 to 30.07.2008.  It is also not in dispute that the complainant met with an accident on 27.02.2004 and sustained fracture to his right leg.  Basing on which, the Shyvalapuram police registered a case in Crime No.5/2004 u/s.337 IPC, vide Ex.A.1 FIR.  Thereafter he was admitted in Govt. General Hospital, Guntur wherein x-ray was taken and the Asst.Professor was of the opinion that he had fracture to his right leg, vide Ex.A.3.  The police after investigation laid a charge sheet u/S.338 IPC against the driver of the vehicle, evidenced under copy of charge sheet Ex.A.2.  In fact the very police had made a mention in the charge sheet that “the doctor (L.W.6) did not issue wound certificate and left away and repeated requisitions were submitted with a request to issue would certificates, but he did not give and left leaving the job.  The same was brought to the notice of DM & HO but nothing response was received.  Further the injured were referred to GGH Guntur, wherein Dr.V.Sekhar, Asst. Professor/Tutor after seeing the X-Ray opined that the disability was 50%, vide Ex.A.4.  Evidently, he submitted the claim form on 24.07.2006, vide Ex.A.5.  In the claim form there was a categorical mention that he was admitted in the Govt. General Hospital, Guntur on 27.02.2004 and was discharged on 23.03.2004 and was again admitted in Govt. General Hospital, Kurnool on 23.03.2004 and was discharged on 23.06.2004 and was again admitted in Kalyani Hospital, Kurnool on 24.06.2006 and was discharged on 13.08.2006.  Althrough, he was an inpatient in one hospital or the other.  The office copy was counter signed by Dr.K.Krishna Mohan, MS (Ortho), Asst. Professor & Civil Asst. Surgeon, Kurnool Medical College. 

8.         On receipt of it, the Insurance Company did not appoint any surveyor to find out the genuineness of the certificates that were submitted by the complainant.  Admittedly on 30.11.2007, one year after submission of the claim form the Insurance Company once again requested the complainant to submit the copy of insurance policy, etc.  It is not the case of the Insurance Company that the complainant did not furnish all those documents as mentioned by him in his letter Ex.A.6.  This is obviously pursuant to the notice issued under Ex.B.1 dated 16.08.2006 and again on 28.09.2007 under Ex.B.2.  The Insurance Company did not repudiate the claim on the ground that he did not sustain any injury, nor that he was not entitled to the policy amount in view of the terms of the policy.  It alleged that the claim form was submitted belatedly and that the complainant has been pursuing the claim routinely without submitting the requisite documents.  When there was no repudiation, the question of barring the claim under Limitation Act will not arise.  He having been admitted in Govt. General Hospital at Guntur and Kurnool and so also in Kalyani Hospital, Kurnool, he could not have informed in writing that there was disability.  The Medical Board after considering the injury opined that he had 50% disability.  The complainant having sustained fracture on his right leg was unable to inform within time.  The period whatever contemplated to give reasonable notice is not mandatory.  At no stretch of imagination, it can be said that the period contemplated is mandatory.  Even otherwise, it was stated, that if there is proof of disability, the complainant can submit the claim beyond 12 months.  We may state that in the light of the impeachable documentary evidence it cannot be said that the complainant did not sustain 50% disability, moreso when the Medical Board, a statutory body, certified the percentage of disability.  We are of the opinion that the complainant sustained partial disability of 50%.  Importantly, Clause © of Ex.B.3 Terms and Conditions of Janatha Personal Accident Policy stipulates that

            “If such injury shall within twelve calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of sight of one eye , or total and irrecoverable loss of use of a hand or a foot, fifty percent (50%) of the capital sum insured stated in schedule herein.”

Since the complainant had sustained 50% disability, necessarily the capital sum insured stated in the schedule has to be allowed.  Therefore, the complainant is entitled to the amount.  The opinion of the District Forum that he had to sustain total disability cannot be acceded in view of the fact that Clause © of the terms and conditions of the Janatha Personal Accident Policy stipulates that the disability to be 50%. 

9.         In the result, the appeal is partly allowed.  Consequently, the complaint is allowed in part directing the Insurance Company (opposite parties) to settle the claim by awarding the amount covered under the schedule as contemplated under the terms and conditions of the policy within 30 days of receipt of order together with interest

at 9% per annum from the date of complaint till the date of payment,  besides costs of Rs.2,000/-.                                 

                   PRESIDENT

MEMBER

Dt:22.09.2011

Vvr.