This is a complaint U/S 12 of the C. P. Act, 1986 with the prayer for an order directing the O.Ps. to pay an amount of Rs.9,60,000/- for permanent disability , Rs 20000/- for compensation for harassment and mental pain also litigation cost of Rs.10,000/- and any other reliefs to the complainant.
The complaint case in short is that he is an insurance policy holder of Bajaz Allianz general Insurance Co. Ltd. Being policy No. OG- 11-2414-6401-00000317 with affect from 19.08.2010 to 18.08.2013 and sum insured under the policy is Rs 1000000/-. The policy was opened through Axis Bank Ltd. At Dalkhola Branch and wife of complainant namely Rima Debi was shown as nominee.
That on 28.05.12 the complainant accidentally fell down from the stairs while coming from roof of his house and sustained several injuries . She was taken to near by doctor and from there to Kisangani and wherefrom he was refered to Siliguri. First he was taken at Anandalok Hospital at Siliguri and thereafter was taken at Siliguri Medical College and hospital . From there he was admitted at Doctor Malay’s Hospital and Neuro Sciences Centre at Siliguri on 29.05.12. After thorough treatment he was discharged from Doctor Malay’s Hospital on 18.06.12. On diagnosis it was detected that “Compression Fracture and anterior wedging of L2 with right side intra parenchyma bleed in front- temporal lobe and….etc.” . Due to such accident complainants became permanently disabled physically.
After two months of discharge he filed a “claim form” before OP No. 1 & 2 along with relevant papers and was assured by this OP of receiving claim money shortly. But suddenly on 09.01.13 OP Insurance company sent a letter to the complainant repudiating his claim. On verification of claim documents it revels to them as accidental fall under influence of alcohol. Complainant stated that the OP Insurance Co. made a false allegation regarding consumption of alcohol only to repudiate the claim illegally . That complainant repeatedly contacted OP No. 1 but only received false assurance. Lastly on 3rd part of April 14 OP No. 1 denied the claim of complainant. So, finding no other alternative, the complainant has filed this complaint before this Forum to get proper relief.
OP No 1 contested the case by filing WV and OP No. 2 & 3 did not appear to contest the case in spite of receiving notice, so the case is heard ex parte against OP NO. 2 & 3.
O.P. No.1 by filing written versions has contested the case denying all the material allegations against them made by the complainant rather contended that this case is not maintainable in its present form and law. Specific case of the Insurance Company O.P. No.1 is that admittedly complainant is the policy holder with affect from 19.08.10 to 18.08.13 opened through Axis Bank OP No. 3 . OP No. 1 denied the story of accidental fall of complainant or that he was taken to different hospitals for treatment etc at Siliguri or that the complainant became permanently physical disabled or contacted over mobile phone on repeated occasion about the incident or was assured by OP No. 1 & 2 to make payment of insurance claim etc.
OP stated on the other hand that they sent letter to the complainant repudiating the claim as on verification of claim documents it revealed to the OP that the incident was nothing but accidental fall under influence of alcohol. That the injury as mentioned by the complainant which he received only because the complainant under influence of alcohol at the time of fall and the insurance policy does not extend coverage for any expenses incurred on investigation and treatment of any illness arising out of or attributable to use or abuse of Intoxicating Drugs and Alcohol. As per policy conditions OP Insurance Company is not liable to pay any amount for such kind of accident of complainant. That he met with accident due to his careless and negligence, consumed huge alcohol could not control himself, fell from staircase while coming down from roof through the stair. Thereof he violated the terms and conditions and company is not liable to pay any compensation. So, this OP prays for dismissal of the petition of the complainant with cost.
OP No.2 and 3 did not appear to contest the case in spite of receiving notice therefore the case is heard ex-parte against them.
To establish the complaint case, the complainant and the O.P. have relied upon some documents as well as affidavit-in-chief of complainant as well as OP No. 1. Both complainant and OP No. 1 filed questionnaires and also answers of questionnaires.
Decisions with reasons:
Giving due consideration to the contents of the complaint petition, documentary evidence on record, hearing argument advanced by the Lawyers of both sides, the Ld. Forum has come to the findings as follows: -
It is admitted fact that the complainant is a policy holder of OP No. 1 company being policy No OG- 11-2414-6401-00000317 with affect from 19.08.2010 to 18.08.2013 and sum insured under the policy is Rs 1000000/-. The policy was opened through Axis Bank Ltd. At Dalkhola Branch. Complainant files this case by citing sufficient documents like policy papers and also files documents regarding his treatment that he was suffering from Compression Fracture and anterior wedging of L2 with right side intra parenchyma bleed in front- temporal lobe and….etc. The original receipt of Doctors Malayas Hospital at Siliguru showing an expenditure of Rs 135,100/- is filed in support of his treatment in the Hospital from 29.05.12. to 18.06.12. Complainant also filed Xerox copies of bunch of cash memo , receipt , prescriptions showing such treatment and expenses he incurred for such treatment during the period. Complainant alleges that on good faith he submitted the original documents to OP Insurance Company when he was assured verbally of his claim and afterwards he was not handed over those original receipts ,cashmemo etc. However complainant produces before this Forum original documents regarding his treatment and investigation like x-ray plates and report, CT Scan report, pathological report etc. Petitioner submits original voucher / cash memo of Rs 135100/- of Doctor Malay’s Hospital and Neuro sciences Centre at Siliguri plus Rs 1000/- of Omega Diagnostics and money receipt of ambulance of Rs 3200/- i.e. total Rs 139200/-. All these documents prima face proved that he was suffering from the above mentioned diseases following an accidental fall from stair case in the night of 28.05.12 at his house. The defense case of the OP Insurance Company in reply is that the complainant was under influence of alcohol at the time of accidental fall and the Insurance policy does not extend coverage for any expenses incurred or attributable to use or abuse of Intoxicating Drugs and Alcohol. That, as per policy conditions OP Insurance Company is not liable to pay any amount for such kind of accident of complainant. That, complainant met with accident due to his careless and negligence, consumed huge alcohol could not control himself, fell from staircase while coming down from roof through the stair. Therefore, OP is not denying the injuries received by complainant on 28.05.12 and expenses incurred for such injuries in treatment and investigation. At the same time OP fails to prove by any convincing evidence oral or documentary that actually at the time of accident complainant was under influence of lequare or negligent or careless, fail to control himself and attributed to the incident under influence of excessive consumption of lequare etc. Therefore mere averment in the WV and in evidence as OPW 1 is not sufficient to prove the attributable negligence on the part of the claimant/ Insured to deny the claim of insurance money payable to complainant under the policy by OP No. 1.
As the complainant fails to prove that he suffers following the injury permanent disability and normal functional physical capacity impairment by sufficient documents this Forum is unable to pay any compensation to that effect.
From the above discussion this Forum can safely conclude that the OP Insurance company wrongly repudiated the claim only to deny payment of claim amount of complainant .It is the deficiency in service on the part of the OP Insurance company which necessarily causes suffering and mental pain to the complainant . Complainant has been able to prove his case but in part upto which he has been able by filing documents regarding injuries and expenses of treatment in support of his claim. So, we decided that the complainant has been able to prove his case in part and he is entitled to get amount of Rs.1,39200/- as per his claim for medical expenses from the O.P. and the O.P. cannot be avoid the liability in this case. Moreover, such claim do not exceed the total sum assured.
Complainant is further entitled to compensation amount of Rs 10000/- for deficiency in service for causing unnecessary harassment, mental pain and agony and also litigation cost of Rs 3000/- from the OPS. That the complainant do get an award directing the O.P. No. 1 to pay Rs 139200/- as claim money under the insurance policy and compensation towards deficiency in service, mental pain and harassment for unfair trade practice and also to pay litigation cost to the complainant as stated above .
Fees paid is correct.
Hence, it is
ORDERED,
That the case being No.CC -43/2014 is allowed on contest but in part against O.P. Nos. 1 and ex-parte against O.P. No.2 & 3.
OP No. 1 is directed to pay Rs 139200/- to the complainant as claim amount under the policy and further directed to pay compensation of Rs.10,000/- towards deficiency in service, mental pain and harassment for unfair trade practice and also to pay Rs.3,000/- as litigation cost to the complainant within one month from this date, failing which the awarded amount will carry interest @ 9% p.a. till full realization; failing which the complainant will be at liberty to realize his claim in accordance with law.
Copies of this order be supplied to the parties free of cost.
