F.A. 875/2007  against C.C. 93/2006,  Dist. Forum, West Godavari,  Eluru  

Between:

The Branch Manager

The New India Assurance Company Ltd.

Divisional Office

D.No. 22B-13-19, 1^st Floor

Prasad Mansion

Venkatrama Press Road

Powerpet, Eluru,

West Godavaru Dist.                                   ***                           Appellant/

            Opposite Party       

                                                                    And

Goddu Satyanarayana

S/o. Ganga Raju, 60 years

Retd. Employee

D.No. 7-24, Gulabi Thota

Eluru, West Godavari Dist.                         ***                         Respondent/

Complainant

Counsel for the Petitioner:                         Mr. Kota Subba Rao

Counsel for the Respondent:                       Mr. V. Vengu Gopala Rao.

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

                                                 &

                 SRI R. L. NARASIMHA RAO, MEMBER

WEDNESDAY, THIS THE THIRTIETH DAY  OF DECEMBER TWO THOUSAND NINE

ORAL ORDER:  (Per Hon’ble Sri Justice D.Appa Rao, President.)

***

1)                This is an appeal preferred by the  opposite party insurance company against the order of the Dist. Forum  directing it to pay the amount covered under the policy together with costs.

2)                The case of the complainant in  brief  is that  he  took an insurance policy for his motor vehicle  for Rs. 1 lakh valid for the period from 10.10.2002 to 9.10.2003.  The policy covers both own damages and personal accident coverage.  While so, he met with  accident on  7.10.2003  wherein he had sustained  grievous injuries besides damage of vehicle.   On a report  the police registered a case  on 7.10.2003.   The accident was due to rash and negligent driving of the opposite vehicle.    He was  hospitalized  and the said fact was intimated by his son  Mr. G. Srinivas to the insurance company.   It had deputed a surveyor.  While settling  the damage to the motor vehicle   for an amount of Rs. 6,697/-  it refused to pay the amount for his disability and the amount spent towards treatment.    In fact he submitted  a certificate issued by the Medical Board.   The claim was rejected unjust and therefore claimed Rs. 1 lakh together with costs.

3)                The insurance company resisted the case.   While denying each and every averment made in the complaint, it alleged that the complainant was not entitled to the insurance benefit for the injuries sustained by him.  The allegation that the complainant’s son intimated  about the accident is not true.   In fact it was not  intimated within the stipulated time.   He submitted the claim after  his discharge  from the hospital on   26.3.2005.    The doctor who issued  the certificate did not declare  the disability of the complainant as total disability.  On the other hand, he stated that the fracture was healing.   The disability could not be assessed since  he was under treatment.    While he underwent  operation on  15.3.2005, he obtained the disability certificate  on 23.4.2005 while still undergoing treatment.   Clause-3 attached to the policy  together with I.M.T. No. 15  of the   India Motor Tariff  endorsements, the complainant would be entitled to the amount only in case of  loss of  limbs   or sight or if there was total disablement.   Fracture to his right leg was  only partial  and that it was not total loss and the disability being  not 100%  he would not be entitled to compensation.   His claim was not admitted as it was not within the scope of terms and conditions of the policy.    The complainant was not entitled to the amount claimed and therefore prayed for dismissal of the complaint with costs.

4)                The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A21 marked, while the insurance company examined Dr. A.V.R. Mohan, Orthopedic Surgeon and got Exs. B1 & B2 marked.

5)                The Dist. Forum after considering the evidence placed on record opined that the disability being 55% and the policy was taken for personal accident coverage, he was entitled to compensation of Rs. 1 lakh and accordingly directed the insurance company to pay the same with interest @ 9% p.a., from the date of repudiation till the date of realization together with costs of Rs. 500/-.

6)                Aggrieved by the said order, the insurance company preferred the appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective.    Admittedly even from the evidence of doctor the disability  was 55%  and therefore the claim would not come within the purview of the policy.   The disability is covered for death or loss of  two limbs or loss of sight two eyes and 50%  in case of loss of one limb and one eye.  It covers  only amputation of limb and not to the fracture.   The complainant should be  bound by the terms and conditions incorporated in the policy and the Courts  cannot grant compensation on some  other extraneous consideration.   Therefore it prayed that the complaint be dismissed. 

7)                The point that arises for consideration is whether the  order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is an undisputed fact that the complainant had taken  insurance policy  covering the risk of his motor cycle and third party damage besides  his Personal Accident coverage up to Rs. 1 lakh.    It is also not in dispute that during the subsistence of the policy the complainant met with an accident wherein  he had sustained fracture to his right thigh and leg evidenced under certificate Ex. A6.    RW1 Dr.  A.V. R. Mohan certified that the disability was “55% permanent partial disability”.  As per the terms of the policy the insurance company paid Rs. 6,697/- towards damage to the vehicle.  When the complainant claimed the amount spent towards the treatment for the fracture of his  right leg, the insurance company  relied  I.M.T. No. 15  of the terms and conditions of the policy and declined to grant compensation  on the ground that there was no loss of limb  nor there was permanent total disability from the above said injury.    In order to  appreciate the said contention, it is useful to  excerpt  I.M.T. No. 15  for better appreciation. 

IMT 15. PERSONAL ACCIDENT COVER TO THE INSURED OR ANY NAMED

PERSON OTHER THAN PAID DRIVER OR CLEANER (Applicable to private

cars including three wheelers rated as private cars and motorized two wheelers with

or without side car [not for hire or reward])

In consideration of the payment of an additional premium it is hereby agreed and understood that the Company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by the insured person in direct connection with the vehicle insured or whilst mounting and dismounting from or traveling in vehicle insured and caused by violent accidental external and visible means which independently of any other cause shall within six calendar months of the occurrence of such injury result in:-

Details of Injury Scale of Compensation

i)Death 100%

ii) Loss of two limbs or sight of two eyes or one limb and sight of one eye 100%

iii) Loss of one limb or sight of one eye 50%

iv) Permanent Total Disablement from injuries other than named above 100%

Provided always that

(1) compensation shall be payable under only one of the items (i) to (iv) above in respect

of any such person arising out of any one occurrence and total liability of the insurer shall

not in the aggregate exceed the sum of Rs.....…..* during any one period of insurance in

respect of any such person.

(2) no compensation shall be payable in respect of death or injury directly or indirectly

wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide

or attempted suicide physical defect or infirmity or (b) an accident happening whilst such

person is under the influence of intoxicating liquor or drugs.

(3) such compensation shall be payable only with the approval of the insured named in

the policy and directly to the injured person or his/her legal representative(s) whose

receipt shall be a full discharge in respect of the injury of such person.

Subject otherwise to the terms exceptions conditions and limitations of this policy.

A reading of the above would undoubtedly show  that 100% compensation would be paid in case of  death, or loss of two limbs or sight of two eyes or one limb and sight of one eye or permanent total disablement  from injuries  and 50%  compensation would be paid in case of loss of one limb or sight of one eye.   At the outset it may be stated that the complainant had not lost either a limb or sight of a eye.  Even assuming that the fracture could be construed as loss of limb though such interpretation would  not only against common sense but also against letter and spirit of the terms of the policy,    it did not result in permanent disability from the said injury.   Had the injury been resulted in permanent total disability, he would have been awarded 100% compensation.   RW1 doctor who gave certificate Ex. A6  which was relied by the complainant wherein he categorically mentioned that the injury was “55% permanent partial disability”.    At no stretch of imagination it can be said that he was entitled to compensation and that too at  prorata basis assuming that disablement was 50%.     It was repeated in  Section-III of the terms and conditions of the policy.    When he had sustained a fracture  and it did not result in loss of limb  and the disability being not total permanent disability,  he would be entitled to compensation. 

9)                 Learned counsel for the appellant relying  on a decision of  Supreme Court in  The General Assurance Society Ltd. Vs. Chandmull Jain reported in  1966 ACJ 267  contended that  where parties agreed upon certain terms which were to regulate their relationship, it was not for the Court to make a new contract, however reasonable, if the parties had not made it for themselves.  There is no quarrel as to the said proposition. 

10)               In the light of the fact that the injury sustained by the complainant does no attract the terms of the policy, we are unable to agree with the contention of the complainant that he was entitled to compensation.   We do not agree with the finding of the Dist. Forum when it held that the complainant was entitled to compensation though the disability was “55% permanent partial disability” as certified by the doctor.

11)               In the result  the appeal is allowed and the order of the Dist. Forum is set-aside.  Consequently the complaint is dismissed.  However, in the circumstances of the case  no costs.

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.  30.  12.  2009.

*pnr

“UP LOAD – O.K.”