SRI.K. VIJAYAKUMARAN, PRESIDENT.

Complaint for realization of Insurance claim, compensation cost etc.

          The averments in the complaint can be briefly summarized as follows:

          The complainant is engaged in  fishing and allied Industry for his livelihood.  He is a member of Society  FDWCS –FQ1-86 Aravila   with membership No.174.  He has paid contrbution an insurance policy  entered into between the first and 2^nd opp.parties under the Group Personal Accident Insurance to cover all members of Prmiary Societies for the year 2002-03.   The complainant met with an accident while he was cutting fire wood  on 16..11.2002 and a piece of fire wood struck at his right eye completely destroying  his eye sight.   Since the incident occurred while he was the member of the society and he has sustained loss of eye sight he is entitled  to get the benefit as per the policy.   Though he approached the 2^nd opp.party in this regard, the 2^nd opp.party did not take any action which is deficiency in service on the part of the opp.party.   Hence the complaint. 

The 1^st  opp.party filed version contending as follows:   The complaint as against the first opp.party is not maintainable.   The first opp.party was a facilitator to coordinate functions of members of Primary societies of fishermen.  The complainant is a member of   such a society.  The first and 2^nd  opp.party entered into an agreement under which Group Personal Accident Insurance to cover all members of society and as such policy No.2002/267 for the year 2002-03 was issued in favour of the first opp.party.  The complainant paid the insurance premium and as per the policy and so he  he has insurance coverage for the injuries sustained in an accident.   The complainant met with an accident on 16.11.2002 and sustained serious injuries to his right eye and have under gone treatment in Ophthalmic  Hospital, Thiruvananthapuram from 16.11.2002 to 20.11.2002. The Medical Board of Medial College, Thiruvananthapuram has issued a certificate to the complainant  that he has sustained 30% visual disability which is  partial permanent disability.   The complainant filed a claim application before the first opp.party which was forwarded to the 2^nd opp.party.  But the 2^nd opp.party did not settle the claim alleging that partial disability is excluded from the scope of policy and death or total permanent disability alone is covered under the policy which is arbitrary and beach of policy conditions.  The ground  relied on by the 2^nd opp.party for refusing compensation is frivolous and against the  terms and conditions of the policy.                                                                                                                                                                                                                                                                                            Hence th e 1^st opp.party  recommend the claim for compensation as against the 2^nd opp.party.

The 2^nd opp.party filed a separate version contending interalia that the complaint is not maintainable either in law or on facts..  The definition complaint, complainant consumer disputes service as defined in section 2 [1] of the Consumer Protection Act do not cover the claim made out in the complaint.  The complainant  has no manner of cause of action against the 2^nd opp.party.  It is admitted that this opp.party had issued a GroupPersonal Accident Insurance Policy in favour of the first opp.party under the above Insurance Policy Group Personal Accident risk of the insured persons  are covered under the policy  for death or  permanent total disability as specified in the policy.   The nature of injuries sustained  to the complainant  and the extent of disability caused on account of he same  would not come under the purview of the policy coverage.   The complainant  had undergone treatment at Govt. Opthalmic Hoxspital, Medical College, Thiruvananthapuram and produced  a disability certificate issued by the Medical Board  attached to Medical College Hospital, Thiruvananthpuram  which shows that  the extend to disability sustained to him on account of the injury  was only 30% which would not come under category of Total Permanent Disability.  As per the condition No. I. C.i of the policy , the insured person is  entitled to get 50%  of the sum insured if he had sustained Total  and irrecoverable loss of  sight of one eye.   The injury caused only 30% partial  permanent disability which would not entitled the complainant to claim compensation as per the policy.   The complainant has subsequently produced a certificate showing  that the disability of the right eye is 100% which he obtained  by manipulation which is not admissible.   The compensation claimed by the complainant is   no way justified as against the  2^nd opp.party.  Hence the 2^nd opp.party prays to dismiss the complaint

Points that would arise for consideration are:

1.     Whether the complainant is entitled to get compensation as per the policy.

2.     Whether there is deficiency in service on the part of the opp.party

3.     Reliefs and costs.

For the complainant PW.1 and 2 are examined.  Exts. P1 to P3 are marked.

For the opp.party DW.1 is examined.   Ext. D1 and D2 are marked.

Points:

As a matter of fact the  policy as well as the accident are admitted.   The case of the complainant is that  the loss of sight of his both the eyes  was   due to an accident sustained  to his right eye and therefore he is entitled to get compensation as per the policy conditions.   According to the 2^nd  opp.party  as per Ext. D2 certificate issued by the Medical Board attached to the Medical College Hospital, Thiruvananthapuram the disability caused to  his right eye is only 30% and therefore the complainant is not entitled to get any compensation because  as per the terms of the policy only total and permanent disability alone would entitle the complainant for compensation under the policy.  PW.2 is the Dr. who issued Ext.P2 disability certificate stating that the complainant has sustained 100% disability to his eyes.  He has deposed that the complainant has sustained 100% Permanent Disability . In chief examination he has stated that the patient  lost eye sight due to Rheumatic Optic Atrophy Right eye and Amplilopia in left eye.   In cross examination PW.2 stated that the vision disability of the left eye is not  related to any Trauma and the vision defect for the right eye can be related  to the originated  problem of old age.  He would further state in cross examination that the loss of eye sight due to  Trauma   right eye is to be classified as partial permanent disability.

          The learned of counsel for the 2^nd opp.party would argue that the provisions of the Insurance Policy is attracted only when  total and permanent disability is caused  resulting from an accident alone and the available evidence in this case shows that the permanent total disability of the complainant is only 30%  evidenced  by Ext.D2  He would further argue that the 100% disability sustained by the complainant is not in  consequence of the accident sustained  by him and that  PW.2 has stated that the total vision disability is due to old age  due to rhumatic optic atrophy and the loss of  eye sight to the left eye is due to Amplilopia, and therefore it cannot be said that the 100%disability sustained by the complainant is  due to the accident sustained to him and therefore the complainant is not entitled to get the benefits as per the Ext.D1. policy.   He has relied on the decision of National Commission reported in II [2006] CPJ 137 wherein it was held that only in case of total and irrecoverable loss  the insurer is liable to pay any amount as per the policy and no deficiency in service can be attributed in denying the claim.  He would further argue that the National Commission  has held in the decision reported in I [2007] CPJ  Vol.I  Page 230  that as per the policy only total and permanent disability resulting from accident alone is covered and that   it was held therein that a  disability upto 81%   is partial  disability and the aggrieved therein  is not entitled to get the accident benefits..  In the light of the above decisions we hold  that the complainant is not entitled to get the benefits of the policy and  that there is no deficiency in service on the part of the 2^nd opp.party.  Point found accordingly.

          In the result the complaint fails and the same is hereby dismissed.  No costs.

            Dated this the  31^st       day of March, 2011.

                                                                                    K.VIJAYAKUMARAN : Sd/-

                                                                                    ADV. RAVI SUSHA :Sd/-

                                                                                    R. VIJAYAKUMAR :Sd/-

                                                                                    Forwarded/by Order,

                                                              SENIOR SUPERINTENDENT.                                           

I N D E X

List of witnesses for the complainant

PW.1. – Aliyarukunju

PW.2. – Kr. Kamalakshy

List of documents for the complainant

P1. – Copy of Identity card.

P2. – Disability Certificate

List of witnesses for the opp.party

DW.1. – P.P. Krishnamoorthy

List of documents for the opp.party

D1. -  Policy and Policy Guideline

D2. – Disability certificate