BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 132/2002 Filed on 27.03.2002

Dated : 30.12.2008

Complainant:

R. Vijayan, Nidhi Vettiyavila Puthen Veedu, Kattakkada P.O, Thiruvananthapuram.

(By adv. N. Satheesh Kumar)

Opposite party:

The New India Assurance Co. Ltd., Tvm-Branch II, Government Press Road, Thiruvananthapuram represented by its Branch Manager.

(By adv. Sreevaraham G. Satheesh)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 25.10.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 21.11.2008, the Forum on 30.12.2008 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Brief facts of the case are that the complainant was holding a valid personal accident insurance policy from the opposite party as No. 4276050201481 for a sum of Rs. 1,00,000/-. On 20.11.2000, while the complainant was working at a quarry unit met with an accident whereby the petitioner fell down from the rock and got injured. After the fall the petitioner was taken to a local ayurvedic vaidyan at Kadakkal by his fellow workers and later as the pain on the leg could not be controlled the petitioner was taken to the Medical College Hospital, Thiruvananthapuram. From the Medical College Hospital petitioner was referred to Taluk Hospital Neyyattinkara and was admitted there as inpatient No. 18708 for communuted fracture shaft of left tibia and fibula and treated there as an inpatient till 13.12.2000 and later discharged with plasters on the legs with advice of complete bed rest. Later on 10.03.2001 plaster was removed and the petitioner was advised to do physiotherapy for mobilization of left knee and ankle joints. After getting discharged from the hospital petitioner preferred a claim application before the opposite party with all the supporting documents. But till the date of filing this complaint, the opposite party did not settle the claim. Hence the petitioner approached this Forum claiming Rs. 1 lakh as personal accident claim and Rs. 10,000/- as compensation for the mental agony caused to the petitioner.

The opposite party, New India Assurance Co. Ltd entered appearance and filed their version controverting the contention of the complainant. In their version, the opposite party admitted that the complainant was holding a personal accident policy for a period from 16.11.2000 to 15.11.2001. The opposite party also admitted that the complainant submitted an application on 28.03.2001 intimating the alleged accident of 20.11.2000. This opposite party issued the claim form and the same was submitted by the complainant duly filled on 09.05.2001. The complainant produced the permanent partial disability certificate, X-ray etc. on 14.08.2001 and this opposite party finalized the claim and the voucher for the amount was sent to the complainant on 12.10.2001. But the complainant refused to accept the same. The complainant as per the certificate produced by him is having 7% permanent partial disability due to the alleged accident. His case will come under clause 1(e)(XII) of the policy conditions. He is eligible for 7% of the total sum insured. The same comes to Rs. 7,000/-. adding the medical expense also the amount comes to Rs. 7,045/- and that amount was offered to the complainant on 12.10.2001. the same was reasonable and it is the only eligible amount as per the policy conditions. The same was not accepted by the complainant even though the same was bonafidely offered by this opposite party. The opposite party further stated the complainant has not approached the Forum with clean hands. He has suppressed the material fact of the offer made by the opposite party. As per the opposite party there is no deficiency of service on their part. The claim of the complainant was processed without any delay by the opposite party as per the policy conditions, rules and regulations and the amount legally entitled by the complainant was offered by the opposite party. Hence they prayed for the dismissal of the complaint.

Points that would arise for consideration are:-

1. Whether there has been deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled to get the reliefs.

3. Costs.

In this case the complainant and opposite party have filed proof affidavit. Nobody has been examined as witness. From the complainant's side 4 documents were marked as Exts. P1 to P4. From the opposite party's side also marked 4 documents as Exts. D1 to D4.

The case of the complainant is that the opposite party had failed to dispose the claim till the filing of the complaint. This act of the opposite party amounts to deficiency in service and unfair trade practice. In this case there is no dispute regarding the validity of the policy or occurrence of the accident. And also the complainant has no case that the amount offered by the opposite party is meager. The complainant claims the full insurance amount, i.e; Rs. 1,00,000/-.

The opposite party contending the claim of the complainant asserts that there is no deficiency in service from their side. They argued that as per the certificate produced by the complainant he is having 7% permanent partial disability due to the alleged accident. As per clause 1(e)(XII) of the policy conditions, he will be eligible for 7% of total sum insured. That comes to Rs. 7,000/-. Adding the medical expenses the amount comes to Rs. 7,045/- and that amount was offered to the complainant on 12.10.2001. But they stated that the complainant has never turned up to accept that amount. Ext. D4 is the copy of letter offering the amount sent by the opposite party to the complainant dated 12.10.2001. Ext. D3 is the copy of policy condition. Ext. D2 is the medical certificate. The parties are bound by the conditions, stipulated in the policy, which is the basis of the contract between the parties. In this case the complainant has failed to establish the deficiency in service and delay as against the policy conditions. From these documents, we find that the complainant is only eligible to get the benefit as per clause 1(e)(XII) of the policy condition.

The complainant in this case not denied the Ext. D4 letter. Hence we are inclined to believe that the complainant has not approached this Forum with clean hands. From the recorded evidence and pleadings we find that there is no deficiency in service from the side of opposite party. They were always ready to pay Rs. 7,045/- to the complainant. There is no delay from the side of opposite party to settle the claim. The complainant has filed this case without genuine cause of action and the complaint is found baseless. Hence the complaint is dismissed and the complainant is at liberty to receive the eligible amount from the opposite party.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30^th December 2008.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 132/2002

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Personal accident insurance policy of Policy No.

4276050201481dated 16.11.2000.

P2 - Statement of sum insured and premium in detail dated

16.11.2000.

P2 - Outpatient ticket No. 142311 dated 22.11.2000.

P3 - Photocopy of personal accident insurance claim form of

policy No. 42/1481 dated 26.04.2001.

P4 - Letter dated 31.05.2001.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Photocopy of personal accident insurance claim form dated 26.04.2001.

D2 - Photocopy of medical certificate dated 24.07.2001 issued from Taluk Hospital, Neyyattinkara.

D3 - Photocopy of personal accident insurance policy dated 16.11.2000.

D4 - Letter dated 12.10.2001 issued by the Branch Manager, New India Assurance Co. Ltd.

PRESIDENT