KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL 525/02 JUDGEMENT DATED 02.02.2008
PRESENT
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SRI.S. CHANDRAMOHANAN NAIR : MEMBER
1. The New India Assurance Co.Ltd., Divisional Office, Palayam, Thiruvananthapuram
2. Ramesh V.Kurup, : APPELLANTS Branch Manager, Public Sector Branch, Palayam, Thiruvananthapuram. (By Adv.Sreevaraham G.Satheesh) Vs.
1. Latha B.Kaimal, T.C.9/1035-1, ‘Siva’ Sasthamangalam, Thiruvananthapuram : RESPONDENTS 2. Electornic Research and Devlopment Centre, Vellayambalam, Thiruvananthapuram (By Adv.P.Krishnan Kutty Nair)
JUDGMENT
1. The above appeal is directed against the Order dated 18.07.02 of the CDRF, Thiruvananthapuram in OP 309/00. The complaint was preferred by the first respondent as the complainant against the appellants as (opposite parties 1 & 2) and the second respondent (3rd opposite party) claiming the insurance claim under the group insurance issued by the first appellant/first opposite party. New India Assurance Company Limited. Appellants/opposite parties 1 & 2 offered a sum of Rs.1,000/- as the insurance claim. But the complainant was not satisfied with the above said claim offered by the insurance company. Hence she filed the complaint claiming a sum of Rs.9,000/- with interest and cost. The Lower Forum accepted the case of the complainant to a greater extent and thereby awarded a sum of Rs.7,500/- with future interest at 14.5%. The Lower Forum has also ordered a general compensation of Rs.2,000/- with cost of Rs.1,000/-. Aggrieved by the said order the present appeal is preferred by the insurance company. 2. When this appeal was taken up for hearing there was no representation for the second respondent/third opposite party. We heard the counsel for the appellants/opposite parties 1 & 2 and the first respondent/ complainant. The learned counsel for the appellant insurance company relied on clause (f) of the D3 schedule to the group insurance policy and submitted that the complainant as insured is only entitled to get 1% of the capital sum insured for the alleged disablement of the right ring finger. It is further submitted that the Lower Forum has gone wrong in interpreting the condition in clause (f) of the conditions of the policy of Insurance. He further relied on the testimony of DW2 Dr. Samson Nessaiah and Ext.D13 certificates issued by DW2 stating that there was no fracture to the right ring finger of the complainant. Thus, the appellants requested for setting aside the impugned order passed by the lower Forum. On the other hand, the learned counsel for the first respondent/complainant supported the findings and conclusions of the Lower Forum. He relied on the testimony of PW2, George Selvaraj who treated the complainant for the fracture of right ring finger. He also relied medical certificate issued by PW2 which is part of P2 series of documents. The learned counsel for the complainant has also canvassed for the position that the complainant as the insured is entitled to get insurance claim @ Rs.3,000/- per week. Hence the first respondent /complainant requested for dismissal of the present appeal. 3. The point that arise for consideration are : Whether the case of the complainant (first respondent) that she is entitled for the insurance claim for a period of 3 weeks @ Rs.3,000/- per week can be upheld? Is there any legally sustainable ground to interfere with the impugned order dated 18.07.02 passed by CDRF, Thiruvananthapuram in OP 309/00.
4. Points 1 & 2: For the sake of convenience we will refer the parties according to their status in OP 309/00. 5. There is no dispute regarding the existence of group insurance policy issued by the first opposite party New India Assurance Company Limited and thereby the complainant was insured for a sum of Rs.1 lakh. It is also admitted that during the effective period of the policy, the complainant sustained injury to her right ring finger and she was under medical treatment from 01.02.99 up to 21.02.99. The definite case of the complainant is that she has sustained fracture to the right ring finger and she was under the treatment of Dr.George Selvaraj, the surgeon of PRS Hospital, Thiruvananthapuram. On the other hand, the opposite parties insurance company would contend that there was no fracture to the right ring finger, but there was only some injury to the soft tissue of the right finger and so she was in need of rest at the maximum period of one week. The opposite party/Insurance Company relied on the testimony of DW2, Dr. Samson Nessaiah and D13 certificate issued by DW2. It is deposed by DW2 that there was no fracture to the right ring finger of the complainant but there was some soft tissue injury to the finger. According to DW2, the complainant was in need of 2 or 3 days rest only. It is pertinent to note at this juncture that DW2 had no occasion to see the complainant as the patient or to examine the complainant for the injury sustained to her right ring finger. DW2 has issued D13 certificate on a perusal of the ex-ray film which was produced by the complainant before the insurance authorities. At any rate, DW2 himself has admitted the fact that there was some soft tissue injury to the right ring finger. According to DW2, the complainant was only in need of 2 or 3 days rest for the heeling soft tissue injury to the right ring finger. On the other hand, PW2 - the doctor who treated the complainant has categorically reported that there was fracture to the right ring finger. According to PW2, there was 2 fractures to the ring finger. The fact that there was an injury to the right ring finger is established in this case. The competent person to depose about the nature of the injury and the period of rest required for heeling the injury is the doctor who actually treated the patient. So, more weight is to be given on the oral evidence tendered by PW2 and his P2 medical certificate. Another important aspect to be noted at this juncture is the fact that DW2, Dr. Samson Nessaiah is a doctor in the panel of the insurance company. It is also to be noted that DW2 was deputed by the insurance company for an expert opinion without notice to the complainant. So, the testimony of DW2 can be treated as the testimony of an interested witness. There can be no doubt that DW2 will be interested to safeguard the interest of the insurance company. At the same time, PW2 had an occasion to treat the patient and the certificate was issued before the dispute in this case. The Lower Forum is justified in relying on the testimony of PW2 and his medical certificate. We have no hesitation to hold that the complainant sustained fracture to her right ring finger and she was in need of complete rest for a period of 3 weeks. The certificate issued by the complainant’s employer namely the third opposite party would also make it clear that the complainant was on medical leave from 01.02.99 to 21.02.99. So, the case of the complainant regarding the injury and the period of treatment is to be accepted. 6. Clause (f) of the conditions of the group insurance policy reads as follows:- “If such injury shall be the sole and direct cause of temporary total disablement, then so long as the insured person shall be totally disabled from engaging in any employment or occupation of any description whatsoever a sum at the rate of one percent of the capital sum insured stated in the schedule as existing at the inception of the policy hereto/her week but in any case not existing Rs.3,000/- per week in all under all policies”. The aforesaid clause would make it clear that the complainant herein who was insured for a sum of Rs.1 lakh is only entitled to claim @ 1% of the capital sum insured ie; Rs.1 lakh. The 1% of the sum insured would come to Rs.1,000/-. So, for three weeks the complainant is only entitled for Rs.3,000/-. 7. But the Lower Forum has wrongly interpreted the clause (f) of the conditions of the group insurance policy. We have no hesitation to hold that the complainant is only entitled to get the claim @ Rs.1,000/- per week. Thus, the total claim due to the complainant is fixed at Rs.3,000/-. The order passed by the Forum awarding Rs.7,500/- as the insurance claim is set aside and thereby the aforesaid claim is modified or reduced to Rs.3,000/-. The Lower Forum has also awarded future interest @ Rs.14.5% on the insurance claim. There is no reason or ground to interfere with the rate of future interest awarded by the Lower Forum. Hence we hold that the complainant is entitled to get future interest @ Rs.14.5% p.a. on the above said insurance amount of Rs.3,000/-. The Lower Forum can be justified in ordering cost of Rs.1,000/-. The cost ordered by the Lower Forum is also upheld. 8. The Lower Forum has also awarded a sum of Rs.2,000/- as general compensation. It is to be noted that the complainant made a tall claim of Rs.9,000/- and the opposite party/insurance company offered a sum of Rs.1,000/-. It is to be noted that the claim made by the complainant is on the higher side and that the amount offered by the opposite party is on the lower side. Moreover, it is hard to believe that the complainant suffered any sort of inconvenience of mental agony on account of the failure to settle the insurance claim. It is further to be noted that we have already awarded future interest @ 14.5%. So there is no scope for awarding further compensation under the head general compensation. So, the compensation of Rs.2,000/- awarded by the Lower Forum awarded is set aside. Thus, the impugned order passed by the Forum below is modified to the extent as indicated above. 9. In the result, the appeal is allowed partly. The impugned order passed by the Lower Forum is modified. Thereby the insurance amount of Rs.7,500/- awarded by the Lower Forum is reduced to Rs.3,000/- with future interest @ 14.5% and cost of Rs.1,000/-. The general compensation of Rs.2,000/- awarded by the Forum below is set aside. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. The amount deposited by the appellant at the time of institution of the present appeal can be withdrawn after paying the amount awarded by this judgment.
M.V.VISWANATHAN : JUDICIAL MEMBER S.CHANDRAMOHANAN NAIR : MEMBER
FJ. | 
