By Sri. MOHANDASAN.K, PRESIDENT
1.The complaint in short is as follows: -
The complainant is the registered owner of Car No. KL/10/AC-9119 which was insured with the opposite party vide policy No. 760201311601000031033 for the period from 10/3/2017 to 09/03/2018. While the said policy was in force on 07/12/2017, the complainant was travelling from Munnar to Marathani in the above said vehicle which was driven by a duly licensed driver, namely Siraj and when it was reached at Mankada, the vehicle hit against a tree on the road side at about 2.45 PM. The complainant thereby sustained serious injuries including fracture over right femur, Head injury, Nasal bleeding and Lacerated injury around left eye with tissue loss. Two other passengers in the vehicle who are close relatives of the complainant also sustained grievous injuries and the driver died of the injuries sustained by him. The complainant was admitted in Moulana Hospital, Perintalmanna on 07/12/2017 and discharged on 09/12/2017and he spent more than Rs. 50,000/- on treatment and medicines. The accident occurred due to the rash and negligent driving by the driver. The complainant was a salesman in a vegetable shop at Areecode.
2. The injuries sustained by the complainant was very serious and so he became disabled to engage any work. The fracture sustained to the leg caused shortening of the right leg, difficulty to walk and pain of the affected area. The head injury sustained resulted of persistent head ache and giddiness to the complainant. The complainant underwent treatment as inpatient from 07/12/2017 to 09/12/2017 and was under total bed rest at home for 6 months.
3. The complainant being the owner of the vehicle is not in a position to approach the Motor Accident claims Tribunal seeking compensation. The opposite party being the insurer of complainant’s vehicle is liable to pay compensation to the complainant directly. Hence the complainant approached the Insurance Company, but they failed to honour the claim of complainant. The complainant sent a letter to the opposite party by registered post on 17/05/2018 seeking compensation for the injuries sustained by him and for his disabilities. But the opposite party, though received the letter neither respond to the letter norpaid the compensation. The Police registered a case as Crime No.192/2017 at Mankada police station. Aggrieved by the act of opposite party approached this Commission seeking direction to the opposite party to pay compensation and incidental other claims. The complainant alleges deficiency in service on the part of the opposite party.
4. On admission of the complaint notice was issued to the opposite party and the opposite party entered appearance and filed version.
5. The opposite party denied the entire averments and allegations contained in the complaint. The opposite party denied that the complainant sustained various injuries on 07/12/2017 and he spent Rs. 50,000/- for treatment and medicine, that complainant is a salesman at a vegetable shop at Areecode. The opposite party denied that the injury sustained by the complainant was serious, which has made him disabled to engage in any work, fracture sustained to the right femur has resulted in shortening right leg, difficulty to walk and pain over the affected area. The opposite party also denied that the complainant is with persistent head ache and giddiness due to the head injury and had undergone or bed rest for 6 months, spent Rs. 50,000/- for treatment and transport. The opposite party contented that they are not liable to pay compensation to the complainant. The complainant preferred own damage claim before the opposite party and it was settled as per the terms and conditions of the policy. The complainant had obtained Rs.1,75,000/- towards the own damage claim. The opposite party had informed the complainant that by virtue of the policy that the complainant is not eligible for compensation as claimed.
6. The opposite party submitted that they issued a Private Car Package Policy-Vide No.76020131160100031033 in respect of vehicle No. KL-10-AC-9119 for the period 10/03/2017 to 09/03/2018 and by virtue of the policy the insured is eligible for own damage, legal liability to third parties, legal liability to paid driver and compulsory PA for owner Driver. It is also submitted that apart from this if the owner is a driver, that person is only eligible for personal accident coverage subject to the terms and condition of the policy which are specifically stated in Section 3 of the policy clauses. The opposite party submitted the Section 3 of the policy as follows:-
Section 3 personal accident cover for owner- driver –
The company undertakes to pay compensations as per the following scale for bodily injury/death sustained by the owner – driver of the vehicle in direct connection with the vehicle insured or whilst driving or mounting into/ dismounting from the vehicle insured or whilst travelling in it as co-driver, caused by violent accidental external and visible means which independent of any other causes shall within six calendar months or such injury result in;
Nature of injury Scale 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 one sight of one eye 50%
(iv) Permanent total disablement from injuries
other than named above. 100%
Provided always that
A) The compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner - driver arising out of anyone occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs. 2,00,000/- during any one period for insurance .
B) No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from a traceable to
(c) 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.
C) Such compensation shall be payable directly to the insured or to his / her legal
representatives whose receipt shall be the full discharge in respect of the injury
to the insured.
D) This cover is subject to:
(a) The owner-driver is the registered owner of the vehicle insured herein:
(b) The owner-driver is the insured named in this policy.
(c) The owner-driver holds an effective driving license, in accordance with the
provisions of Rule 3 of the Central Motor Vehicle Rules, 1989 at the time of
accident.
7. The opposite party submitted that the complainant has not sustained any injury or permanent disability as per the above policy clauses and so the complaint is not eligible for compensation for permanent disability, medical expenses, transport to hospital, bystanders’ expenses, compensation for pain and suffering as claimed in the complaint. It is submitted that the insurance policy is a contract which is regulated by terms stipulated therein and the respective parties have their obligation if there and specific clauses/provisions enlisted that regard. The legal liability of the owner/ complainant is being indemnified by the policy with personal accident coverage subject to the terms and conditions of the policy, which is specifically mentioned in the policy. The opposite party submitted that the injury sustained to the complainant does not fall as stated Section 3 of the terms and conditions of the policy. So the claims under various heads by the complainant are improper and against law. The complainant has not suffered any mental agony as stated in the complaint. There is no deficiency in service on the part of the opposite party and so the submission is to dismiss the complaint with compensatory cost of the opposite party.
8. The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A7. The document on the side of the opposite party marked as Ext. B1. Ext. A1 is copy of FIR No.192/2017, Mankada Police station dated 07/12/2017. Ext. A2 is copy of wound certificate from Moulana hospital,
Perintalmanna dated 09/12/2017, Ext.A3 is Notice issued by the complainant to the opposite party dated 17/05/2018, Ext. A4 is Discharge summary from Department of Neuro Surgery, Moulana hospital, Perintalmanna dated 09/12/2017. Ext. A5 is Discharge summary from Moulana Hospital, Perintalmanna, Ext. A6 is OP tickets and medical bills. Ext.A7 is copy of Registration certificate of vehicle No.KL-10-AC-9119. Ext. B1 is Certificate of Insurance along with Policy Clause. Disability Certificate marked as Ext. C1.
9. Heard complainant and opposite party, perused affidavit and documents. The following points arise for consideration.
- Whether there is deficiency in service of opposite party?
- Relief and cost.
10. Point No.1 & 2
The complainant and opposite party admit that the complainant was the registered owner of the vehicle No. KL-10-AC-9119 car and it was insured with the opposite party vide policy No. 76020131160100031033 for the period from 10/03/2017 to 09/03/2018. The case of the complainant is that while the policy was in force on 07/12/2017 the vehicle met with an accident and he sustained serious injuries including fracture over right femur, head injury, nasal bleeding and lacerated injury around left eye with tissue loss. The two other co-passengers also sustained serious injuries and the driver Mr.Siraj died in the accident. The complainant treated as inpatient at Moulana hospital, Perintalmanna from 07/12/2017 to 09/12/2017. He spent huge amount for treatment and medicine. The complainant is not able to walk properly and has resulted shortening of right leg due to the injuries sustained in the accident.
11. The complainant being the owner of the vehicle is not in a position to approach the Motor Accident Claims Tribunal seeking compensation and so the complainant approached the opposite party for the personal accidental insurance coverage. But the opposite party denied the claim.
12. The contention of the opposite party is that the insurance is a contract which is regulated by terms and conditions and the parties to the contract bound to adhere to the terms and conditions of the contract. The opposite party produced Ext.B1 document in support of the contention in the version for not considering the claim of the complainant. As per Section 3 of the policy conditions, the opposite party is bound to pay insurance coverage to the owner cum driver in case of (i) Death or (ii) Loss of two limbs or sight of eyes or one limb and one sight of one eye or (iii) Loss of one limb or sight of one eye or (iv) Permanent total disablement from injuries other than named above (i) to (iii). In this case the injuries sustained by the complainant does not come under the any of the clause. So, the contention of the opposite party is that as per terms of policy conditions, the complainant is not entitled compensation.
13. In this complaint, the complainant was referred to the medical board for the assessment of his disability and the medical board has issued a disability certificate which is in tune of 7%. The certificate states that the complainant has got permanent partial disability of 7%. Considering the treatment records and the disability certificate it can be seen that the injuries sustained by the complainant and the certificate issued by the medical board does not make the complainant for the entitlement of compensation as per 3rd Section of the policy conditions.
14. In the light of the above facts and circumstances, the complaint stand dismissed.
Dated this 7thday of July, 2022.
