BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.364/2009
Dated this the 24th day of September 2012.
( Present: Sri. G. Yadunadhan, B.A., LLB. : President)
Smt. Jayasree Kallat, M.A. : Member
Sri. L. Jyothikumar, B.A., LLB. : Member
Managing Partner, Ms.Apex Construction, RBG Arcade Building, } Complainant
Opp.Gandhi Park, Cherootty Road, Calicut-673 032. }
(Rep.by Adv.K.Hemachandran, Calicut)
1) Divisional Manager, United India Insurance Co.Ltd., }
Divisional Office-No.II, Seema Tower, Mavoor Road, } Opposite parties
Calicut-673001. }
(Rep.by Adv.T.V.Hari, Calicut)
2) K.Mohammed, House No.2, Pathroni Nagar, }
Vellimadkunnu, Marikkunnu PO, Calicut-673 012. }
(Rep.by Adv.Pavithran.K.Calicut)
ORDER
By Jayasree Kallat, Member
The petition was filed on 31-08-2009. Petition is filed by Managing Partner M/s. Appex Construction. M/s. Apex Construction is a partnership firm engaged in Civil Construction work Consultancy Service. The second opposite party was a construction worker engaged by the complainant for the construction of SBT Zonal Office Complex Building Project. The complainant had taken a workman compensation insurance general policy from the first opposite party covering all employees employed in the aforesaid work site. On 12-3-2008 while the second opposite party was engaged in cleaning work of concrete mixture machine in the above mentioned work site, one of the wooden plank used for temporary ceiling to support the concrete roof feel on his right fore arm causing fracture of radius ( R) fore arm, deformity and tenderness over right fore arm and other injuries. The second opposite party was immediately taken to Kozhikode District Co-operative Hospital and had undergone treatment as inpatient till 18-3-2008. The second opposite party had informed the complainant that the treatment expenditure incurred for the employment injury exceeded Rs.18000/-. The complainant was constrained to reimburse the hospital treatment expenditure amounting to Rs.14135/- and left the remaining amount as unsettled. On 13-11-2008 the second opposite party sent a registered notice to the complainant as well as first opposite party claiming the balance amount of medical treatment expenditure. Complainant had informed the first opposite party that as per workmen compensation policy during the period of insurance, any employee in the insured’s immediate service sustained any injury by accident during the course of his emolument the company is liable to pay compensation for such injury as per the schedule of the policy. The complainant was liable to reimburse the medical treatment expenditure incurred by opposite party-2 for employment injury sustained to him. So the complainant had paid the hospital treatment expenditure bills amount to Rs.14135/-. As per the terms of policy insurance company is liable to indemnify the complainant with full extend of medical treatment expenditure incurred by K. Mohammed, 2nd opposite party for availing treatment. Insurance company is liable to reimbursement the medical treatment bill, but has not responded to the notice sent by the complainant. It was negligence and deficiency of service on the part of the first opposite party by not responding to the notice sent by the complainant. And not indemnifying the amount of treatment expenditure paid to second opposite party. The complainant has therefore filed this petition seeking for relief from the Forum.
Opposite party-1 filed their version denying the averments in the complaint except those that are expressly admitted. The Policy Workmen compensation (General) Policy issued to the applicant does not cover of the medical reimbursement of the worker. The policy cover only the liability as envisaged in workmen’s compensation Act 1923. It is to be determined by the authority constituted for this purpose3 Opposite party-1 is liable to reimbursement of the amount of Rs.14135.46 claimed by the applicant as the expenditure incurred by K. Mohammed. The company is not liable to indemnify the insured. The company had collected the premium for covering risks under the workmen’s compensation Act alone. Complainant is not a consumer and firm is not competent to file a case before this Forum. As this is not a consumer dispute within the meaning of Consumer Protection Act. Hence opposite party prays to dismiss the petition.
Opposite party No.2 filed their version admitting that M/s. Appex Construction if a partner ship firm engaged in civil Construction work and Consultancy service. The second opposite party was a construction worker engaged by the complainant. Opposite party-2 also admits that on 12-3-2008 while he was engaged in cleaning work of concrete mixture from the work site, one of wooden plank used for temporary ceiling to support the concrete roof fell on his right fore arm causing fracture. He was admitted in Kozhikode District Co-operative Hospital and had undergone treatment as inpatient. From 12-3-2008 to 18-3-2008. Closed I.M. Nailing surgery was done from the hospital and his right hand was bandaged. It was put in plaster coating for three months. The treatment expenditure incurred for the employment injury exceeded Rs.18000/-, out of which complainant has reimbursed the hospital treatment expenditure amount to Rs.14135/- leaving the remaining medical expenditure unsettled. The complainant had taken a workmen compensation policy covering accident risk and employment injury during employment. It is for the first opposite party to indemnify the complainant for the medical treatment expenditure incurred by second opposite party. Second opposite party is not a necessary party in this proceedings and no relief is claimed from second opposite party by the complainant. Hence second opposite party prays to be deleted from the opposite party array.
The only point for consideration is whether the complainant is entitled for any relief.
Complainant was examined as PW1 and Ext.A1 to A6 were marked on complainant’s side. No oral evidence on opposite parties’ side. Ext.B1 was marked on opposite party-1’s side.
In the complaint itself it is stated that M/s. Apex construction is a partnership firm engaged in civil construction work and consultancy service. The petition is filed by Managing Partner of the firm which shows that it is run for commercial purpose. Hence the complainant will not come under the purview of Consumer Protection Act. The second opposite party was a construction worker engaged by the complainant for the work of construction of SBT Zonal Office Complex building project. On 12-3-2008 second opposite party met with an accident while he was engaged in cleaning work of concrete mixture machine in the worksite. Second opposite party was injured and admitted in the hospital. The treatment expenditure incurred by K. Mohammed, the second opposite party exceeded Rs.18000/-. After repeated demand by K. Mohammed the complainant reimburse the hospital treatment expenditure amounting to Rs.14135/-. In this petition the complainant has impleaded K. Mohammed as second opposite party and seeks the return of the amount expended towards treatment. Second opposite party was an employee of the complainant. No explanation is given by the complainant as to why K. Mohammed was made an opposite party in this petition. Forum is of the opinion that it is K. Mohammed who is the aggrieved party. In the same way the version of first opposite party clearly states that the policy workmen compensation (general) policy issued to the complainant firm does not cover medical reimbursement of the worker. The policy covers only the liability as envisaged in workmen’s compensation Act 1923 which is to be determined by the authority constituted for this purpose. The company had collected the premium for covering risks under the workmen’s compensation Act alone. The complainant has produced the workmen compensation general policy as Ext.A1 the same is produced by opposite party No.1 which is marked as Ext.B1. Both Ext.A1 and B1 are the same policy insured by Apex construction for a period from 9-11-2007 to mid night of 8-5-2008. In page-3 of Ext.B1 or A1 it seen that it any time during the period of insurance any employee in the insurance immediate service shall sustain personal injury by accident or decease arising out of and in the course of his employment by the insured in the business and if the insured shall be liable to pay compensation for such injury either under the law set out in the schedule or at common law. Exceptions are clearly stated in the policy itself, which is pointed out by Opposite party-1“The company shall not be liable under this policy in respect of clause (2 )the insured’s liability to employees of contractors to the insured. Clause-5- any sum which the Insured would have been entitled to recover from any part but for an agreement between the Insured and such party. The complainant should have approached the workmen’s compensation authority to determine and not approached this Forum. The policy workmen compensation issued to the complainant firm does not cover medical reimbursement of the worker. This case filed to get amount spent for medical treatment for the injury sustained by K. Mohammed while he was in service of the complainant. This Forum finds that the complainant instead of approaching the workmen’s compensation committee has tried to get the money reimburse from the insurance company and the worker who was injured. In our opinion it is not for this Forum to sit in judgment on a matter which is to be decided by Workmen’s Compensation Committee. As we find no negligence or deficiency in service on the part of the opposite parties, we are of the opinion that the complainant is not entitled for any relief.
In the result the petition is liable to be dismissed.
Pronounced in the open court this the 24th day of September 2012
Date of filing:31.08.09.
SD/-PRESIDENT SD/-MEMBER SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1.Photocopy of Workmen’s compensation(General) Policy issued by first opposite party
A2.. Registered letter sent by second opposite party to the complainant dtd.13.11.2008.
A3. Registered notice sent by complainant to first opposite party dtd09.12.2008 with
acknowledgement card.
A4. Photocopy of discharge summary of 2nd opposite party issued from Kozhikode Dist.
Co-operative Hospital Ltd.
A5.Copy of particulars of treatment bills submitted by K.Mohammed for Rs.14135.46.
A6. Copy of bills including Room advancer and surgery issued by Kozhikode
District Co- operative Hospital Ltd (33 Nos. in series)
Documents exhibited for the opposite party:
B1,. True copy of the Insurance Policy No.101600/41/07/01/00000007 .
Witness examined for the complainant:
PW1.Ratheesh.A.K, 2/2171-A1 “Swastic” PO.Civil Station, Calicut-20.
Witness examined for the opposite party:
None.
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
