IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

 Monday the 30^th day of September 2024

Filed on: 17.10.2022

Present

1. Smt. P.R.Sholy, B.A.L, LLB  (President in Charge)
2. Smt.  C.K.Lekhamma . B.A. LLB (Member)

In

CC/No.252/2022

     between

ORDER

SMT.SHOLY P.R.(PRESIDENT IN CHARGE)

Complaint filed u/s 35 of the Consumer Protection Act, 2019

1. Meterial averments briefly discussed as follows:-

The opposite party was an insurer of scooter bearing Reg.No.KL-04-AR-7240 owned by the complainant.  On 01/01/2022 at about 4 pm when the complainant was travelling in scooter as a pillion rider ridden by one Mr.Sarju on Kalath Junction-Thoppuveli road and on reaching Eastern side of Kalath junction one pedestrian abruptly crossed the said road in front of the said scooter and on seeing the crossing the rider of the scooter Mr.Sarju applied sudden brake and the scooter skidded and in that sudden jerk complainant slipped out of the scooter and forcibly fell on the road and had sustained serious injuries traumatic cervical spine injury C7 quadritelgia, traumatic spinal code injury with cord contusion, traumatic disc bulge at C5-C6 with marked secondary canal narrowing with cord compression and edema, fracture of anterior osteophyte at C5-C6 level etc.  After the accident the complainant was immediately admitted to Providence hospital, Alappuzha on 01/01/2022 and continued treatment there till 03/01/2022, then he was referred to Indo American Hospital, Vaikom for better treatment and treated as inpatient till 02/02/2022.

2. During the period of treatment he underwent anterial cervical C5-C6 discectomy and fusion with (R) iliac crest tricorticate bone graft and hydroxyapetite crystals fixed with Medtronic atlantis anterior cervical plate and screws on 19/01/2022 under General anesthesia.  During the period of treatment the complainant had incurred an amount of Rs.8 lacs towards medical expenses.  In spite of advanced medical care complainant became quadriplegic and both upper and lower limps were completely paralyzed.  He is still bedridden and continuing treatment in the said hospital as outpatient.

3. At the time of accident the complainant was travelling on his own scooter as pillion rider who had a valid driving license bearing No:4/1976/1995 which was valid from 25/02/2020 to 24/02/2030.  At the time of accident the scooter was comprehensively insured with the opposite party for all the risks and losses for which the complainant duly paid Rs.5031.80 to the opposite party and they issued a comprehensive policy bearing No.DC047290645/16102021 covering period of 16/10/2021 to 15/10/22022.  On that day of issuance of the policy, only policy schedule was given to the complainant.  The said policy also covers owner/rider for Rs.15 lacs in case of accidental death or any permanent disability sustained to him while riding/travelling in the said scooter.  Opposite party had duly collected an extra premium for personal Accident cover for owner/driver Rs.330/- which was duly stated in policy schedule itself.  The complainant was the registered owner and policy holder of the said scooter.  As per the policy the complainant is entitled to get the permanent disability benefit of Rs.15 lakhs.

4. At the time of the accident complainant was a self employed owner cum worker of Mangalya Decorations & Mangalya Travels, Alappuzha.  Due to the serious injuries sustained in the accident complainant became permanently disabled to do any work and which adversely affected to his occupation and his earning capacity was lost forever.

5. The accident was duly intimated to the opposite party’s office at Ernakulam on 03/01/2022 through phone and a PA claim form was duly issued from opposite party’s office on the next working day itself and opposite party’s officer informed the complainant’s wife that filled form to be submitted along with full medical records, endorsement from the treating doctor along with medical bills and permanent disability certificate.  As the complainant was discharged from the hospital only on 02/02/2022, the PA form along with records submitted to the opposite party on 04/02/2022.  Though the complainant approached District Medical Superintendent at Alappuzha for getting the permanent disability certificate, it was informed that minimum one year after the treatment is required to assess disability of the complainant.  The same was also communicated to the opposite party’s office at Ernakulam while submitting the claim.  But opposite party did not accepted the claim form in the absence of disability certificate.  As per Policy Schedule the complainant is entitled to the full assured amount of Rs.15 lakhs, since he had sustained permanent disability due to the injuries sustained in the road traffic accident while travelling in the insured vehicle as pillion rider.  Alleging deficiency in service and unfair trade practice for non-dispersal of assured amount, the complainant filed this complaint for getting the assured amount of Rs.15 lakhs along with compensation of Rs.2 lakhs for mental agony and Rs.5 lakhs for deficiency in service from opposite party.

6. Opposite party filed version mainly contenting as follows:-

Complainant has no locus standi to file this complaint.  This opposite party had issued a policy in the name of complainant for the scooter bearing Reg.No.KL-04-AR-7240 for a period from 16/10/2021 to 15/10/2022.  This opposite party had received Rs.330/- as additional premium for personal accident policy.  The policy only covers the death or permanent total disability of the owner cum rider of the insured vehicle.  The complainant had not submitted any medical evidence to prove the permanent total disability of the insured due to the accident. 

7. The complaint is premature and has no cause of action to file this complaint as the complainant has not given any intimation to the opposite party and the opposite party was devoid of any chance to analyze the claim and check the admissibility and genuiness of the same.  After receiving the claim a claim was registered and have instantaneously initiated the fact gathering process, but the complainant failed to provide necessary documents to prove that the insured is having permanent total disability.  The insurance company is having legal liability only to the insured under the personal accident policy, if he or she should satisfy the legal requirements of the policy.  There is no deficiency in service or unfair trade practice from the part of opposite party as the complainant is miserably failed to prove 100% of disability by producing medical records including disability from a competent medical board and thus the opposite party was unable to process the claim submitted by the complainant.  Hence the complaint may be dismissed. 

8. On the above pleedings following points were raised for consideration:-

1. Whether there is any deficiency in service or unfair trade practice from the part of opposite party as alleged?

2. Whether the complainant is entitled to realize an amount of Rs.15 lakhs along with interest as prayed for?

3. Whether the complainant is entitled Rs.2 lakhs as compensation for mental agony from opposite party?

4. Whether the complainant entitled to realize an amount of Rs.5 lakhs as compensation for deficiency in service and unfair trade practice from opposite party as prayed for?

5. Reliefs and costs?

9. Evidence in this case consists of the oral evidence of PW1 and PW2 and Exts.A1 to A11 and Exts.X1 from the side of complainant opposite party has not adduced oral evidence.  Exts.B1 and B2 were marked from the side of opposite party.  Counsels appearing for both sides filed notes of argument.  Heard both sides.

10. Point No.1 to 4

PW1 is the complainant in this case.  He filed an affidavit in tune with the complaint.  He was examined through an Advocate Commissioner in his residence as per the order in I.A.No.92/24 and marked Exts.A1 to A11.

11. PW2 is one of the members of the Medical Board constituted for examining the complainant who is working as Professor in Department of Physical Medicine and Rehabilitation.  The certificate issued by the medical board marked as Ext.X1, in which the disability of the complainant mentioned as 90%.  PW2 also deposed in box that the complainant is tetraplegic, that means severe paralysis of all forelimps with no antigravity movement of 90% whole body disability because functionally the complainant has only sitting balance and he is fully dependent for all the activities of daily limits (ADL) and also he is on continuous urine drainage and having no bladder control and continuous on catheter and the complainant is fully paralyzed person. 

12. Opposite party has not adduced any oral evidence.  Exts.B1 and B2 marked by consent.

13. Complainant is the registered owner of scooter bearing Reg.No.KL-04-AR-7240.  On 01/01/2022 at about 4 pm while the complainant was travelling in the said scooter, as a pillion rider through Kalath Jn.-Thoppuveli Road and reached eastern side of Kalath Junction, on seeing the crossing of a pedestrian the rider of the scooter applied sudden brake and due to the same the scooter skidded and the complainant slipped out of the scooter and forcibly fell on the road and had sustained serious injuries and he was immediately admitted at Providence Hospital, Alappuzha and after 2 days he was shifted to Indo American Hospital, Vaikom for better treatment where he underwent anterior cervical C5-C6 discectomy and fusion with (R) iliac crest tricorticate bone graft and hydroxyapetite crystals fixed with Medtronic atlantis anterior cervical plate and screws and treated there till 02/02/2022. During the period of treatment the complainant had duly paid Rs.8 lakhs towards medical expenses.  In spite of advanced medical care complainant became quadripledgic and both upper and lower limps were completely paralyzed and he is till bedridden and continuing treatment in Indo American Hospital as outpatient.

14. The vehicle was insured with opposite party for a period of one year from 16/10/2021 to 15/10/2022.  Complainant as the registered owner had also paid an extra amount of Rs.330/-for the PA cover of Rs,15 lakhs.  The accident was duly intimated to the opposite party and claimed PA cover on permanent disability of the complainant.  However it was informed that the policy covers only for permanent total disability or for death for the PA cover.  Aggrieved by the act of the opposite party the complaint is filed for realizing an amount of Rs.15 lakhs along with interest and 7 lakhs as compensation under different heads due to the dishonor of the claim.  Opposite party filed version admitting the insurance policy and that it is valid from 16/10/2021 to 15/10/2022.  They also admitted that they have received RS.330/- as premium to cover the legal liability of the owner cum driver of the insured vehicle.  However they contended that the disability of the complainant is not total disability.  As per the terms and conditions of the policy the PA covered only for death or permanent total disability sustained in the accident.  Opposite party also contended that in this case no permanent total disability suffered by the complainant due to the accident and no corroborative evidence was adduced from the side of complainant for proving permanent total disability to the complainant.  So due to the violation of the policy condition the opposite party is entitled to dishonor/repudiate the claim.  Hence according to opposite party the complaint is only to be dismissed with their compensatory cost. 

15. Complainant who is the registered owner of the vehicle who sustained severe injuries due to the accident while travelling as a pillion rider on the said vehicle was examined as PW1 through Advocate Commissioner at the residence and marked as Exts.A1 to A11. It was reported by the Commissioner the body note of PW1 that the PW1 seen bedridden in his house with foliscathetor insitus, Bed sour (multiple) on the Buttacks region.  One independent witness who is none other than one of the members included in the Medical Board constituted for examining the complainant for assessing the disability if any due to the accident affected to the complainant was examined as PW2 and got marked Ext.X1.  Opposite party has not adduced any oral evidence.  Exts.B1 policy conditions and Ext.B2 policy copy were marked.

16. It is true that the complainant approached the opposite party for claiming PA cover without producing a disability certificate issued by a competent authority.  Of course, disability if any occurred due to any incident can be assessed only after a period of recovery of bodily injury sustained by the patient since it is normally upto 100% of disability can be felt at the initial stage of accident.  Accordingly after filing the complaint, during trial the disability of the complainant assessed by Medical Board as directed by this Commission and produced Ext.X1.   In Ext.X1, the disability of the complainant assessed to an extent of 90% permanent disability of locomotive disability to all limps due to traumatic spinal cord injury of cervical spine C5-C6 Disc bulge with edema and cord narrowing causing TETRAPLEGIA with   grade-2 gross motor function (ASIA C grade).  PW2 also categorically deposed in box that the complainant is fully dependent on all the activities of daily limits and he was also on continuous urine drainage and no bladder control. Further deposed that the complainant fully paralyzed person.  It is reiterated during cross-examination as answered to a question that “Regular medication can be used for maintenance, but that will not contribute further recovery because medically his disability is permanent”.  As mentioned in the Ext.X1, PW2 also asserted during cross-examination that no re-assessment of disability is necessary to the complainant.  Medical Board assessed the disability of the complainant as permanent one and reported that not likely to improve.  From Ext.X1, it is evident that the disability of the complainant is of a permanent nature without any recovery.  As per Ext.B1, terms and conditions of the policy it is evident that loss of 2 limbs or sight of 2 eye or one limbs and sight of one eye the scale of compensation is stated as 100%.  In this case the complainant is not having motor power to upper limb and lower limb which means he cannot move or do anything with the help of both upper limb and lower limb.  As per the bodynote reported by the Advocate Commissioner also it realize the inability of the complainant to move from bed.  At this juncture it is to be noted that as per terms and conditions of PA Cover policy, the insured is entitled for getting damage only for the death or permanent total disability and the permanent total disability means he should have 100% permanent disability in the accident.  He also contented that in Ext.X1, the complainant is not suffering from 100% permanent disability.  According to our view the percentage mentioned in Ext.B1, is not the percentage of disability but it is the scale of compensation for each nature of injury sustained in the accident.

17. Relying upon the oral evidence of PW1 and PW2 coupled with the documents marked the learned Counsel appearing for the complainant submitted in the notes of argument that the complaint is proved as per laws and the complainant is entitled Rs.15 lakhs being PA cover for permanent disability of the complainant due to the injuries sustained in the motor vehicle accident.  He also claimed interest to the claim amount and compensation for mental agony for not processing the genuine claim.  Per contra the learned counsel appearing for the opposite party pointed out that to claim PA cover the insured should have 100% permanent disability in the accident and the said policy is only for owner cum rider of the insured vehicle and hence the insured should also be the rider of the insured vehicle at the time of accident.  In support of the contentions the learned counsel appearing for the complainant as well as the opposite party filed detailed notes of agreement.

18. Here in this case the fact that the complainant is the registered owner of the scooter bearing No.KL-04-AR-7240 is not in dispute.  It is also an admitted case that the vehicle was insured with the opposite party for a period of one year from 16/10/2021 to 15/10/2022.  It is also admitted that the opposite party had collected Rs.330/- as an extra premium for the PA cover of Rs.15 lakhs.  The accident is also not disputed.  The contention raised by the learned counsel appearing for the opposite party is that for claiming PA cover the insured should be the rider of the insured vehicle at the time of accident and he should have 100% permanent disability in the accident.  Since the complainant was pillion rider at the material time of accident and the disability assessed is not 100% permanent total disability in nature the complainant is not entitled to claim the PA cover.  Ext A3 is the true copy of policy issued by the opposite party from which it is seen that an amount of Rs.330/- is collected as premium for PA cover to owner/driver.  Interestingly it is noted that, though Ext.B2 is the same of Ext.A3 in which no amount seen as collected for PA cover to owner/driver.  Admittedly the complainant was a pillion rider of the insured vehicle at the time of accident riding by a third party having valid driving license.  It was pointed out by the learned counsel appearing for the complainant that only Ext.A3 policy was handed over to the complainant and the policy conditions which was produced and marked as Ext.B1 was not handed over to the complainant at the time of availing the policy.

19. In Section ii of the Ext.B1 for personal Accident Cover for owner/driver it is only mentioned that the company undertake to pay compensation for the scale mentioned for death or injury sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from the vehicle insured or whilst travelling in it as a co-driver etc.  Hence it is not a mandatory terms and condition for riding the insured at the time of accident.

20. It was also held by the Hon’ble High Court in Mini L & others Vs Girishkumar & Another (2017 ACJ 2372)

“Motor VehiclesAct 1988 Sec.147(1)- Motor Insurance – Owner – Death of – Personal accident cover – Liability of Insurance company – Owner of motor cycle was travelling on pillion and sustained fatal injuries when the vehicle capsized due to negligence of its driver – Additional premium of Rs.50 had been paid for personal accident cover of the owner insured for Rs.1,00,000/- - No statutory liability upon insurance company under section 147 – Onwer – insured is a party to contract of insurance and cannot be regarded as a third party – Insurance company disputes its liability under personal accident cover on the ground that deceased was not riding the motor cycle at the time of accident – Whether insurance company is liable for Rs.1,00,000/- under personal accident cover of the owner – insured – Held : yes.”

21. It was held by the Hon’ble National Consumer Disputes Redressal Commission in United India Insurance Co. Ltd Vs. Pushpa Devi Mantri (2017 CPJ NC 3 195)

“An owner may travel in a vehicle, either driving the vehicle or as an occupant.  He has taken a policy to cover himself  for the bodily injuries or death, due to an accident, arising out of and use of the vehicle.  The policy is to cover him in both the capacities, either as a owner of the vehicle or as a driver.  Merely because, at the time of accident, he did not drive the vehicle, it cannot be contended that the contract of insurance cannot be extended to cover the owner of the vehicle.  When he travels in the vehicle not actually driving the vehicle, but as an occupant, there is no alteration in his status, as the owner of the vehicle.  The performance of an act, ie., driving the vehicle, alone is not the criteria, to determine the enforceability of the contract of Insurance.  So long as there is a payment of additional premium for the owner cum driver and during the period of validity, an accident has occurred, the policy would cover the owner also, even if he was not on the wheels, at the time of accident.  The expression “owner” cum driver” cannot be split up to narrow down the enforceability of the policy to the driver only, if he is also the owner of the vehicle. When an occupant in the vehicle is covered by the judgment in National Insurance Co. Ltd VS.Balakrishnan (Supra), then the owner of the vehicle, who travelled in the offending vehicle, as an occupant, is also entitled to seek for just compensation, when the vehicle is covered by a comprehensive/package policy.  If the policy is comprehensive / package policy and when additional premium has been paid to cover any loss, then the Insurance Company is liable to pay compensation”

22. So applying the principles laid down in the decision referred above it can be seen that it is not mandatory that the insured should ride the insured vehicle at the material time of accident to claim the benefit under the personal accident claim.

23. Regarding another contention of permanent disability for claiming PA cover as stated earlier, relying the deposition of PW2 coupled with Ext X1, A3, B1 and body note reported by the Advocate Commissioner we are also a firm opinion that the complainant is entitled to get PA cover since the complainant is at present having disability of 90% affected to all limbs not likely to improve and not necessary any reassessment in future.

24. Here in this case as pointed out by the learned counsel for the complainant, at the time of insuring the vehicle opposite party had collected an amount of Rs.330/- being the PA cover for owner/driver.  The complainant is the owner of the insured scooter having a valid driving license.  After collecting Rs.330/-for PA cover now the opposite party cannot turn round from their liability of honouring the valid claim of the complainant.  In the said circumstances we are of the view that the complainant is entitled to realize PA cover of Rs.15,00,000/- along with interest from opposite party.

25. Complainant is claiming an amount of Rs.2 lakhs as compensation for mental agony, pain and loss of time due to the act of the opposite party and Rs.5,00,000/- as compensation for deficiency in service and unfair trade practice from the part of opposite party.  We have already found that complainant being the injured while travelling on the insured vehicle is entitled PA cover.  As it is an admitted fact that permanent disability can be assessed only after the recovery of injuries sustained in the material accident and after completing the treatment, we cannot find an inordinate delay in processing the claim on the part of opposite party, hence no compensation awarded.  These points are found accordingly

26. Point No:5

In the result complaint stands allowed in part in the following terms:-

A. Complainant is allowed to realize an amount of Rs.15,00,000/- (Fifteen lakhs only) along with interest @ 9% p.a. from the date of issuance of Ext.X1 till realization from the opposite party

B. Complainant is allowed to realize an amount of Rs.5000/- as cost from opposite party.

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission this the 30^th day of September, 2024.

                                                             Sd/-Smt.P.R Sholy (President-In-Charge)

                                                           Sd/-Smt. C.K.Lekhamma.(Member)

 Appendix:-Evidence of the complainant:-

PW1                           -           Shibu R(Complainant)

Pw2                          -          Dr.Charvakan S

Ext.A1                       -           True copy of FIR

Ext.A2                       -           True copy of RC book of Scooter bearing Reg.No.KL-04-Ar7240

Ext.A3                       -           Copy of Insurance Policy

Ext.A4                       -           Copy of Driving License

Ext.A5                       -           Copy of Discharge Summary

Ext.A6                       -           Copy of Driving License

Ext.A7                       -           Copy of Scene Mahazar

Ext.A8                       -           Copy of Vehicle Mahazar

Ext.A9                       -           Copy of AMVI Report

Ext.A10                     -           Copy of Statement

Ext.A11                     -           Copy of Report of SHO, Alappuzha

Ext.X1                       -           Certificate of Disability

Evidence of the opposite parties:- 

Ext.B1                       -           Attested copy of Policy Conditions

// True Copy //

To        

            Complainant/Oppo. party/S.F.

                                                                                                                            By Order

                                                                                                                         Assistant Registrar

Typed by:- Br/-

Compared by:-