ORDER
(Passed on 23/08/2018)
PER SHRI.ATUL D.ALSI, PRESIDENT.
The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 for deficiency in service of insurance claim for the 4 policies amounting to Rs.3,85,000/- and thereby claiming assured amount alongwith interest and further claiming compensation of Rs.1 lac towards mental torture and Rs.10,000/- towards cost of proceeding.
2. The facts in short giving rise to this petition are that the complainant is, by profession, a builder in Western Coal Fields, Chandrapur. On 1/7/20014, the tourist bus of Chintamani Travels bearing No.MH-29 T 2220, in which the complainant was returning from Pune to Chandrapur, met with an accident as it turned turtle due to rash and negligent driving of the driver of the vehicle. In the accident, both legs of the complainant came under the bus and were badly damaged. An offence U/s 279,337,338 of IPC came to be registered vide crime No.178/2014 at Police Station Yavatmal. The complainant was admitted to Government Medical Hospital, Yavatmal and was later on referred to specialist at Nagpur for further treatment. Both the legs of the complainant were required to be amputed. After receipt of case papers and documents, the complainant filed insurance claim for the policies bearing Nos. 972342648, 973856359, 972942517 and 972582701 with relevant documents, but the OP has repudiated the claim for the reason that the permanent disability occurred due to accident after 180 days from the date of accident and the policy bearing No.972582701 is in lapsed condition and accident benefit is not available vide letter dated 28/10/2015. The rejection of claim amounts to deficiency in service. Therefore, the petition is filed.
3. The complaint is admitted and notices were served on the OPs. The OP No.1 and 2 filed their reply and thereby denied allegations against them and submitted that the four policies mentioned in the petition are admitted. The policy bearing No. 972582701 is in lapsed condition and as such, remaining three policies were in force at the relevant period. The accrual of accident and sustaining of injuries by the complainant is admitted by the OPs. They submitted that as per the complainant’s own version itself, the accident occurred on 1/7/2014 whereas the amputation of legs was committed on 19/5/2015 and as such, the disability did not occur within 180 days from the accident and hence the claims under the policies bearing Nos. 972342648 and 972942517 , were repudiated by issuing letter and policy bearing No. 973856359 is not having accident rider clause and amount under this policy will be payable on maturity or death, but not in case of accidental injury. The fourth policy bearing No. 972582701 is in lapsed condition and as such no claim under that policy was payable. Therefore the repudiation of the claim does not amount to deficiency in service. Therefore the petition deserves to be dismissed with cost.
4. Counsel for the complainant argued that the complainant has filed copies of policies, FIR at page 1, registration of vehicle at page 3, disability certificate at page No.5, claim form dated 1/9/2015 and repudiation letter dated 28/10/2015 as per list of documents dated 16/5/2017. Both legs of the complainant were amputed due to the impact of accident. The disability is 97%. Therefore the rejection of claim on technical ground amounts to deficiency in service. Therefore the petition may be allowed as prayed.
5. Counsel for the OPs argued that the OPs have repudiated the claim on the ground of breach of policy condition as the permanent injury occurred beyond the period of 180 days from the date of accrual of accident. Therefore the repudiation of the claim does not amount to deficiency in service and the complaint deserves to be dismissed with cost.
6. We have gone through the complaint, written versions filed by OP No.1 and 2, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties. Following issues arise for our consideration.
Issues Finding
1. Whether the complainant is a Consumer ? Yes
2. Whether there is deficiency in service on the
part of OP Nos.1 & 2 ? Yes
3. What order ? As per final order..
REASONING
As to issue No.1
7. The complainant has placed on record copies of all the four insurance policies. The OPs have also admitted that the complainant has obtained those policies from them. That being so, the complainant is the Consumer of OP Nos.1 & 2. Hence the issue No.1 is answered in affirmative.
As to issue No. 2
On perusal of documents, it is evident that the policy bearing No. 972582701 is in lapsed condition due to non payment of premiums and as such no claim under that policy was payable. The policy bearing No. 973856359 is not having accident rider clause and amount under this policy is payable on maturity or death, but not in case of accidental injury. Therefore the repudiation of the claim under these two policies does not amount to deficiency in service. The claims under the policies bearing Nos. 972342648 and 972942517, were repudiated by issuing repudiation letter dated 28/10/2015 on the ground that the accident occurred on 1/7/2014 whereas the amputation of legs was done on 19/5/2015 and as such, the disability did not occur within 180 days from the accident . The disability clause under these policies reads as under..
“The disability above referred to must be disability which is the result of an accident and must be total and permanent and such that there is neither then nor at any time thereafter any work, occupation or profession that the life assured can even sufficiently do or follow to earn or obtain any wage, compensation or profit. Accidental injuries which independently of all other causes and within 120 days from the happening of such accident result in the irrevocable loss of the entire sight of both eyes or in the amputation of both hands at or above the wrist or in the amputation of both feet at or above the ankles or…. disability.”
8. After the accident, FIR bearing No.174/14 for the offence U/s 279,337 and 338 came to be registered against the driver of the Bus No.MH 29, T 2220 of Chintamani Travel, in which the complainant was returning from Pune to Nagpur. As per the FIR and spot Panchnama dated 1/7/2014, there is recital that the bus turned turtle due to rash and negligent driving of the driver of the bus and that the complainant alongwith 24 other passengers suffered sevior injuries. As per the FIR and spot Panchnama, the complainant suffered injuries to his both legs and face. The complainant was initially admitted to to Government Medical Hospital, Yavatmal and was later on referred to Super Speciality, Suretech Hospital at Nagpur for further treatment where both the legs of the complainant were required to be amputed. As per the medical report filed by the complainant on 7/5/2018 at Srl.No.1 and the discharge summary of Suretech Hospital and Research Centre, Nagpur it is mentioned that,
“ Due to accident, he sustained major injuries to his both legs with near total amputation of (L) lower limb and badly contaminated mutilated foot on ® side. After primary treatment at Government Hospital he was shifted to Suretech Hospital Dhantoli, Nagpur. His (L) lower limb was amputated through knee and ® foot was debrided and toileted, as the foot might have appeared to be salvageable to the treating doctor. “
9. As per the disability certificate issued by the competent authority i.e. Civil Surgeon the disability is to the extent of 97%. It is admitted that the OP has not brought any evidence to show that the complainant has suffered any other injury except those which were sustained in the accident. Neither it is their case that the amputation was the result of any lacunae or shortfall in the medical treatment of the complainant by the treating doctors. Hence it is clear that the amputation was the result of seviour injuries sustained by the complainant in the accident. It is pertinent to note that it is a general practice that the doctors usually take extra efforts to avoid amputation of the patient. Therefore in the present case, the amputation did not take place within 180 days from the accident though it was admittedly due to accidental injuries. In these circumstances, rejection of claim for the reason that the disability did not occur within 180 days from the accident can not be a ground to repudiate the insurance claim. Therefore, the repudiation of claim on technical ground by the OP Nos.1 & 2 amounts to deficiency in service. Hence the OP NOs.1 & 2 are liable to pay the accidental benefits under policy No. 972342648 excluding the maturity amount received by the complainant under the policy and the maturity amount alongwith accidental benefit for the policy No. 972942517 alongwith 9% interest from the date of admission of the complaint i.e. 20/5/2017 till realization alongwith compensation of Rs.15,000/- and cost of litigation of Rs.10,000/-.
As to issue No.3
10. In furtherance to our observations to the point Nos.1 & 2 as above, we pass the following order..
Final order
1. The Complaint is partly allowed.
2. The OP Nos.1 & 2 shall jointly and severely pay, the accidental benefits under policy No. 972342648 excluding the maturity amount received by the complainant under the policy and the maturity amount alongwith accidental benefit for the policy No. 972942517 alongwith 9% interest from the date of admission of the complaint i.e. 20/5/2017 till realization
3. The OP Nos.1 & 2 shall jointly and severely pay to the complainant Rs.15,000/- towards compensation for mental and physical harassment and further Rs.10,000/- as cost of this litigation.
4. Copy of the order be furnished to both the parties free of cost.
(Smt.Kalpana Jangade (Kute) (Smt.Kirti Vaidya (Gadgil) (Shri.Atul D.Alsi)
Member Member President
