COMPLAINT FILED: 29.12.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 09th MARCH 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2844/2008 COMPLAINANT Sri. B.A. Prabhakar Rai, S/o. Late Sri Kantha Rai, Age 68 years, No. 345, Samrudha, 7th Cross, Sri Lakshmi Road, Shanthinagar, Bangalore. Advocate (Ranganatha Gowda) V/s. OPPOSITE PARTY M/s. Bajaj Alianz General Insurance Company Ltd., Rept. By Manager, Regional Office, No. 31, Ground Floor, T.B.R. Towers, 1st Cross, New Mission Road, Next to Bangalore Stock Exchange, Bangalore 560 024. Advocate (Manoj Kumar M.R.) O R D E R This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to settle the insurance claim for Rs.2,00,000/- and pay a compensation of Rs.50,000/- and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant is the R.C. Owner of the vehicle bearing No. KG-01-MA-6920. OP covered the insurance of the said vehicle which was valid from 06.04.2005 to 05.04.2006. OP has also collected Rs.100/- towards the personal accident cover for owner-driver under section 3 of the insurance policy covering the risk to the tune of Rs.2,00,000/-. On 18.07.2005 at about 2 p.m. while complainant along with his family traveling in the said car driven by his son met with an accident. In the said accident complainant suffered severe injuries including that of fractures. He was admitted to P.S.G. Hospital, Coimbatore. He took treatment at Bangalore Hospital and underwent the surgery for D.C.P. Plating, etc. Complainant did possess the valid and effective driving licence to drive his vehicle. After the discharge from the hospital complainant made a claim to the OP, unfortunately OP repudiated the claim on the ground that the connecting documents are not produced. Then complainant filed a Complaint No. 542/2008 before the Ist Additional District Consumer Disputes Redressal Forum, which came to be disposed of with certain direction to the complainant to resubmit his claim with relevant documents and OP has to consider the same and settle it within 8 weeks. Though complainant complied all the requirements as per the orders, but OP failed to settle the claim. Thus complainant felt the deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the Disability Certificate produced by the complainant would not fall in any of the nature of injuries as stated in the policy with respect to section 3 of personal accident cover for owner-driver. After considering all the facts and circumstances and the documents produced, OP has repudiated the said claim well within the stipulated time and intimated the complainant. So there is no deficiency in service of any kind on the part of the OP. The complaint is devoid of merits. The allegations are baseless. Among these grounds, OP prayed for the dismissal of the complaint. 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard. 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order? 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Affirmative Point No.2:- Affirmative Point No.3:- As per final Order. R E A S O N S 6. At the outset it is not at dispute that the complainant is the R.C. Owner of the vehicle bearing No. KG-01-MA-6920 and OP covered the insurance of the vehicle which was valid from 06.04.2005 to 05.04.2006. It is also not at dispute that OP collected Rs.100/- towards the personal accident cover for owner-driver under section 3 of the insurance policy covering the risk of Rs.2,00,000/-. It is contended by the complainant that on 18.07.2005 while himself and his family members traveling in his car which was driven by his son, who possess the valid and effective driving licence met with a road traffic accident and in that accident he has sustained grievous injuries including that of fractures, thus suffered permanent disability. The fact that he took treatment at P.S.G. Hospital at Coimbatore, then underwent surgery at Bangalore for D.C.P. Plating, etc., is not at dispute. 7. Now the grievance of the complainant is that after the discharge from the Hospital he sent the claim to the OP. As per the orders passed by the Honble Ist Addition District Consumer Forum OP is expected to settle the claim within a reasonable time. Though complainant complied all the requirements and produced all the relevant records and documents, OP failed to settle the said claim well within the reasonable time. It is further stated that the so called repudiation letter sent by the OP is an altered and manipulated one. The repudiation is illegal, arbitrary, unjust and without due application of mind. For no fault of his, complainant is made to suffer both mental agony and financial loss. Though complainant has substantially produced the relevant documents to speak about the permanent disability OP had not considered the same. 8. The evidence of the complainant which finds full corroboration with the contents of the undisputed documents, appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. Of course one of the documents produced by the complainant marked at Exhibit P7 itself shows that the disability is 60%. As against this it is contended by the OP that the so called Disability Certificate produced by the complainant, injuries noted therein would not fall in any of the categories of injuries noted in section 3 of the personal accident cover for owner-driver policy. We do not find force in the said defence. When we go through the policy, terms and conditions and take note of nature of injury, scale of compensation, even for loss of one limb or sight of one eye scale compensation is 50%. When Exhibit P7 shows to the Permanent Disability to the tune of 60%, then OP ought to have considered the claim of the complainant. Under such circumstances the repudiation made by OP appears to be arbitrary. 9. The fact that the complainant is the R.C. Owner of the vehicle having a valid and effective driving licence is not at dispute. There is no such delay caused by the complainant in seeking redressal with regard to the settlement of the claim, but still OP went on technicalities. The hospital records and other connected documents, discharge summary speaks to the nature of grievous injuries suffered by the complainant, the owner-driver of the said vehicle. The content of the documents produced by the complainant are not at dispute. When there is a proof of Permanent Disability, the repudiation made by the OP speaks loudly about the deficiency in service. For no fault of his, he is made to suffer both mental agony and financial loss. 10. We are satisfied that the complainant is able to prove the deficiency in service on the part of the OP. As against the unimpeachable evidence of the complainant, the defence set out by the OP appears to be defence for defence sake, just to shirk their responsibility and obligation. The approach of the OP does not appears to be fair and honest. Under such circumstances we find it is a fit case, wherein the complainant deserves certain relief. Accordingly we answer point nos.1 and 2 and proceed to pass the following: O R D E R The complaint is allowed in part. OP is directed to settle the claim for Rs.2,00,000/- and pay the same to the complainant. In view of the nature of dispute no order as to costs. This order is to be complied within 4 weeks from the date of its communication. Failing in which the complainant is entitled to claim interest at the rate of 9% p.a. on Rs.2,00,000/- from the date of repudiation till realization along with a litigation cost of Rs.1,000/-. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 09th day of March 2009.) MEMBER MEMBER PRESIDENT p.n.g.
Remanded Complaint Filed: 24.11.2009
Disposed On: 15.12.2010
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
DATED THIS THE 15TH DECEMBER 2010
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.2844/2008
Complainant | Sri. B.A. Prabhakar Rai, S/o. Late Sri Kantha Rai, Age 68 years, No.345, ‘Samrudha’, 7th Cross, Sri Lakshmi Road, Shanthinagar, Bangalore. Advocate: Sri. Ranganatha Gowda V/s. |
OPPOSITE PARTY | M/s. Bajaj Alianz General Insurance Company Ltd., Rept. By Manager, Regional Office, No. 31, Ground Floor, T.B.R. Towers, 1st Cross, New Mission Road, Next to Bangalore Stock Exchange, Bangalore – 560 024. Advocate: Sri. M.R.ManojKumar |
O R D E R
SRI. B.S. REDDY, PRESIDENT
This matter was remanded for fresh disposal by the Hon’ble Karnataka State Consumer Disputes Redressal Commission in Appeal No.1240/2009 by setting aside the order of allowing the complaint.
The complainant filed complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P) to pay compensation of Rs.2,50,000/- on the allegations of deficiency in service on the part of the OP.
2. The case of the complainant is to be stated in brief is that:
The complainant has filed complaint No.542/2008 before the First Additional District Consumer Disputes Redressal Forum, Seshadripuram, Bangalore seeking personal accident relief, after OP repudiated complainant’s claim through the letter dated 24.02.2006. After going through the documents produced by the complainant, OP contended that the Doctor’s evidence as well as disability certificate has not produced earlier to the OP and for that reason OP repudiated the claim. Further OP contended that if the complainant file fresh claim for consideration and for settlement OP will settle the claim if it is within the stipulated conditions U/s–III of the insurance policy. The Hon’ble First Additional District Consumer Disputes Redressal Forum disposed the complaint No.542/2008 with a direction to lodge the claim with all documents within 6 weeks and OP shall consider the same within 8 weeks of the lodging the claim as per terms and conditions of the policy. Further the complainant is at liberty to file complaint in case of the decision of the OP goes against the interest.
Accordingly as per the direction, the complainant filed application to the OP on 06.08.2008 with 9 documents for settlement. On 21.08.2008 again OP written a letter to the complainant stating that he has to fill up proper form then only it can be considered and also sent a claim form and complainant has promptly filled the claim form and submitted the same with all documents on 12.09.2008. OP failed to settle the claim within 8 weeks, OP has issued repudiation letter in the last week of October – 2008 and the letter dated 08.10.2008 has been over written and it shows that the letter is dated 18.10.2008. OP failed to settle the claim; the same is nothing but a deficiency of service. The complainant has sustained grievous injuries and the Doctor’s who treated the complainant, deposed in MVC No.7666/2005 and issued disability certificate. It is further stated that the complainant is unable to walk long distance and unable to squat and unable to climb stairs and unable to stand long time and getting pain, the doctors considering the complainants injuries assessed the total body disability as 60%. It is further stated that due to the physical and mental disability, the complainant has suffered 100% disability to the whole body and he was unable to write literature work and the functional disability is concerned it is 100% disability.
The complainant was taken insurance policy bearing No.OG-06-1701-1801-00000361 valid from 06.04.2005 to 05.04.2006 for his Honda City car bearing No.KA-01 MA-6920 from the OP. The complainant paid Rs.23,556/- towards the total premium and out of this Rs.100/- has been collected by OP towards personal accident cover for owner – driver U/s – III of the insurance policy stating that the OP has to pay Rs.2,00,000/- if the owner – driver sustained any accidental injury causing permanent disability or death as per the terms and conditions of Section-III of the insurance policy. On 18.07.2005 at about 2 p.m. complainant along with his wife and son were proceeding in Honda City car bearing No.KA-01 MA-6920 as co-driver and his son was driving the car, when they reached L and T Bypass Road near Madhukarai, Coimbatore, Tamil Nadu one lorry bearing No.AP-16 X-5162 driven by its driver came in rash and negligent manner with a high speed dashed against the Honda City car of the complainant, due to the inpact the car turned turtle complainant and his wife sustained grievous injuries, immediately they were admitted to Abiram Hospital for a day and he got himself discharged and admitted very next day to P.S.G. Hospital, Coimbatore. The wound certificate issued shows that the complainant has sustained as many as seven grievous injuries. The complainant has taken treatment at P.S.G. Hospital, Coimbatore as well as Bangalore Hospital at Bangalore and underwent surgery on 22.07.2005 for D.C.P. Plating for the sub trochantic and D.C.P. Plating for ulna fracture. Further the complainant undergone operation for C-Arm reduction and fracture fixed with 8 hole D.C.P. Plate with bone grafting and open reduction and fixation using 5 hole and 1/3rd semi tubular plate. Orthopedic surgeon opined that the complainant was unable to walk long distance and unable to squat, unable to climb stairs, unable to stand long time and was getting pain, considering the injuries the doctor has stated that complainant has suffered total body disability at 60% to the whole body. The complainant having valid driving licence at the time of accident and he has satisfied all the conditions as per Section – III Sub-Section (2) of the insurance policy. Inspite of the above facts OP by its letter dated 24.02.2006 and again 08.10.2008 repudiated the claim stating that the claim does not fall under the purview of the policy as per provision Section – III personal accident cover for the owner – driver and this repudiation is contrary to law. The complainant got issued legal notice on 29.01.2008 to settle the claim, but OP has not settled the claim; it is nothing, but deficiency of service for which OP had to pay Rs.50,000/- towards deficiency of service. The complainant is entitled for compensation as follows:
A) Towards claim amount for disability due
to accidental injuries under Section-III - Rs.2,00,000/-
of the insurance policy
B) Towards deficiency of service - Rs. 50,000/-
Total - Rs.2,50,000/-
Hence the complaint seeking the necessary reliefs.
3. On appearance, OP filed the version contending that the claim is not maintainable. The policy issued is subject to various terms, conditions, exceptions, limitations thereof. It is admitted that the complainant insured the Honda City car bearing No.KA-01 MA-6920 for the period from 06.04.2005 to 05.04.2006 under policy bearing No.OG-06-1701-1801-00000361. The policy issued is subject to various terms, conditions, exceptions, limitations thereof. It is admitted that the complainant preferred consumer complaint No.542/2008 and the same was disposed off with a direction to lodge a claim by the complainant with OP with all the documents and the OP to consider the same as per the terms and conditions of the policy. It is stated that the complainant resubmitted the claim on 17.09.2008, OP processed the claim papers, considered the same and on scrutiny of the same, OP had to repudiate the claim. The claim was repudiated on the ground that as per Section – III of the policy, relating to personal accident cover for owner – driver and that in order claim for P.A. cover, the nature of injury should fall in any one category of injuries as mentioned in nature of injury from 1 to 4 of Section – III in terms and conditions of the policy. But the disability certificate produced by the complainant would not fall in any of the nature of injuries mentioned U/s – III of the policy. It is admitted that the insured vehicle was insured with OP under the private car package policy and a premium for a sum of Rs.100/- was collected towards PA cover for owner – driver of an insured sum of Rs.2,00,000/-. The matter has been expediously handled after receipt of claim form and relevant documents and as well the repudiation letter has been forwarded to the complainant vide letter dated 18.10.2008. There was no any negligence or delay in handling the claim of the complainant as such there is no deficiency of service on the part of the OP.
The claim of the complainant was rightly repudiated, as the OP on perusal of the documents and the medical records submitted by the complainant it is ascertained that the claim of the complainant does not fall under the purview of the policy. As per provision Section III personal accident cover for owner – driver relating to items: i, ii and iv of Section III personal accident cover for owner – driver, the claim of the complainant was rightly repudiated. It is denied that the Doctor has stated that the complainant has suffered total body disability at 60% of the whole body. As per “guidelines for evaluation various disability and procedure for certification” Government of India vide its notification dated 01.06.2001 has issued the guidelines for evaluation of various disability and procedure for certification. The authorities to give disability certificate will be a Medical Board duly constituted by the Central and State Government and not the certificate dated 06.10.2006 of Dr. Dinakar Rai so produced by the complainant nor the deposition of the experts i.e., in regard to claim for determination of compensation under the Motor Vehicles Act. The complainant had failed to produce documents to the effect regarding permanent disablement; the claim of the complainant is unjust, fanciful and baseless. There is no deficiency of service or negligence in service. Hence it is prayed to dismiss the complaint with exemplary costs.
4. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced documents marked as Exhibit P-1 to P-19. The authorized signatory of OP filed the affidavit evidence in support of defence version.
5. After the matter was remanded the complainant has not led any evidence to prove the disability certificate.
6. The complainant filed written arguments. Arguments heard on both sides. Points for consideration are:
Point No.1:- Whether the complainant has proved
the deficiency in service on the part of
the OP?
Point No.2:- If so, whether the complainant is
entitled for the reliefs now claimed?
Point No.3:- To what Order?
7. We record our findings on the above points:
Point No.1:- Negative
Point No.2:- Negative
Point No.3:- As per final Order.
R E A S O N S
8. The complainant produced the certified copy of the order passed in MVC No.7666/05 clubbed with MVC No.7667/05 before the Motor Accident Claims Tribunal, Bangalore. The complainant and his wife filed claim petitions before the accident claim tribunal in respect of the same accident claiming compensation against the insurance company New India Assurance Company Ltd., and the owner of the truck. The claim petition of the complainant is allowed awarding total compensation of Rs.8,34,600/-. In the said proceedings the complainant has examined the Doctor who issued disability certificate. Based on the evidence let in the compensation has been awarded. OP in this complaint was not a party to said proceedings as such the findings recorded in the said proceedings are not binding on the OP with regard to the present complaint.
9. The Hon’ble State Commission while allowing the appeal No.1240/09 by setting aside the order allowing the complaint at para – 8 observed that:
“Except producing exhibit P-7, the complainant has not examined the Doctor who issued the Certificate. Further, from the Certificate also, it is seen that the disabilities mentioned by him amounted to permanent disability of 60%. In the first instance, in order to accept the case that he has suffered permanent disablement, the complainant ought to have been produced the evidence of the Doctor who has issued the Certificate.”
The complainant has not chosen to examine the Doctor who has issued the disability certificate P-7 to prove the fact that he has 60% permanent disability. The certified copies of the depositions of the Doctors who are examined in the proceedings before the Claims Tribunal marked as P-8 and P-9 are not admissible in evidence against the OP herein who was not a party to proceedings before the MACT. The complainant ought to have examined the Doctor Dinakar Rai who has issued the disability certificate the copy which has been marked as exhibit P-7 to prove that he has total body disability of 60%.
10. The learned counsel for the complainant relied on the principles laid in 2006 ACJ page 2759 United India Insurance Co. Ltd., Vs. Udaysinh Chandansinh Thakor and others; wherein it was held that the disability certificate can be read in evidence without its formal proof, when there is no evidence to show that the certificate is not genuine, applying strict rules of evidence would amount to defeating the very object and purpose behind the enactment of this beneficial statute. The above principles were laid down while considering the claim petition under the MVC Act being beneficiary legislation. Without affording opportunity to the OP to cross examine the witness who has issued disability certificate, the document exhibit P-7 cannot be considered as duly proved. Further reliance was placed on the principles laid down in 2003 ACJ 1420 Managing Director, North East Karnataka Road Transport Corporation Vs. T. Prabhakar and others wherein public document medical certificate issued by a medical officer was considered and it was held that: “non-examination of doctor is not fatal to the case of the claimants.”
The principles laid down in the said ruling cannot be made applicable to the facts of the case, for the reason that the Doctor who issued the disability certificate is not a Medical Officer and the document cannot be considered as a public document. The disability certificate issued by the Doctor is a private document, the same was required to be proved by examining the Doctor and affording opportunity of cross examination to the other side. The principles laid down in AIR 1963 Supreme Court page 1633 Madamanchi Ramappa and another Vs. Muthaluru Bojjappa is relating to the Certified copy of public document – admissible in evidence without being proved by calling a witness – No objection raised as to mode of proof; cannot be made applicable to the facts of the case. Disability certificate exhibit P-7 is not a public document as such the contents of the same with regard to the permanent disability cannot be accepted without proof of the document.
11. It is not in dispute that the complainant insured his vehicle with the OP for the period from 06.04.2005 to 05.04.2006 and there is a personal accident cover under the policy. It is also not in dispute that the vehicle met with an accident on 18.07.2005 and this complainant sustained injuries. Exhibit P-13 is the copy of the insurance policy and exhibit P-13a contains the terms and conditions of the policy. Section III personal accident cover for owner – driver reads:
“1. The Company undertakes to pay compensation as per the following scale for bodily injury / death sustained by the owner – driver of the vehicle, in direct connection with the vehicle insured of whilst driving or mounting into / dismounting from the vehicle insured of whilst traveling in it as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:
Nature of injury Scale of compensation
(I) Death ……………………………………….100%
(II) Loss of two limbs or sight of two eyes
or one limb and sight of one eye………100%
(III) Loss of one limb or sight of one eye……50%
(IV) Permanent total disablement from
injuries other than named above………100%
Provided always that
a) compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner – driver arising out of any occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.2 Lkahs during any one period of insurance.
b) no compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (1) Intentional self injury suicide or attempted suicide physical defect or infirmity or (2) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.
c) Such compensation shall be payable directly to the insured or to his/her legal representatives whose receipt shall be the full discharge in respect of the injury to the insured.
2) This cover is subject to
(a) the owner-driver is the registered owner of the vehicle insured herein;
(b) the owner driver is the insured named in this policy.
(c) the owner-driver holds an effective driving license, in accordance with the provisions of Rule 3 of the central Motor Vehicles Rules, 1989, at he time of the accident.”
OP is liable to pay the compensation as per the above mentioned scales for bodily injuries / death sustained by the owner / driver of the vehicle. The claim of the complainant has been repudiated as per repudiation letter dated 24.02.2006 marked as exhibit P-10. As per the said letter. It is stated that on perusal of the document submitted and the medical records on hand the claim does not fall under the purview of the policy as per provision:
Section III – personal accident cover for owner – driver. Hence they regret inability to entertain the claim. Exhibit P-7 certificate issued by Dr. Dinakar Rai on 06.10.2006 regarding permanent disability provides as under:
“(a) Loss of memory and motor in coordination 40%
(b) Inability to walk continuously without aid 10%
(c) Painful limitation of hip movements 10%
The above disabilities amounted to permanent disability of 60%.
12. It is contended that the complainant earlier to the accident was writer by profession, was doing his literary work, as he has written more than 50 novels, due to the disability, he is unable to continue his literary work, as such it is to be taken as 100% functional disability. Hence he is entitled for compensation of Rs.2,00,000/- as per the terms of the policy. In our view the document exhibit P-7 is not proved by examining the Doctor who issued the same as such we are unable to accept that the complainant has suffered 60% permanent disability, so as to hold that, as he is unable to attend the literary work, hence there is 100% functional disability. The disability certificate produced does not fall in any of the nature of injuries mentioned in Section III of personal accident cover owner – driver. Therefore OP is justified in repudiating the claim. There is no any deficiency in service on the part of the OP. In view of the same the complainant is not entitled for any of the reliefs claimed. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant dismissed. Considering the nature of dispute no order as to costs.
Send copy of this order to both the parties free of costs.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 15th day of December 2010.)
PRESIDENT
MEMBER MEMBER
Snm:
