Dated 04.04.2024

As per Sanjay Kumar, President.

O r d e r

1. Present appeal has been filed on behalf of appellant/opposite party National Insurance Company Ltd. for setting aside the judgment and order dated 05.05.2017 passed by District Consumer Forum, Vaishali at Hajipur in Complaint case no. 84 of 2013 whereby and whereunder appellant has been directed to pay Rs. 2,50,000/- as insured amount and Rs. 25,000/- as compensation for physical and mental harassment within 45 days from the date of receipt of order failing which interest @12% p.a shall become payable.
2. Briefly stated the facts of the case is that complainant had purchased on 06.09.2003 a Janta personal accident Insurance Policy from opposite party no.1 (National Insurance Company) through its corporate agent opposite party no. 2 (Golden Trust Finance services) for  sum assured amount of Rs. 5,00,000/- which was valid for the period from 23.09.2003 to 22.09.2018.
3. Complainant suffered road accident on 09.03.2009 at about 11:40 in the night and during his treatment suffered further injury on 01.04.2009 by accidental fall in bathroom as a result of which he suffered paralytic attack and got treated in several hospitals but could not be cured and became disabled and lost his job also. A certificate was granted by Civil Surgeon, Vaishali, showing complainant to be 80% disabled.
4. Complainant submitted his insurance claim before O.P. no. 2 who forwarded his claim to O.P. no. 1 for payment of insurance amount. Few documents were demanded by O.P. no. 2 which was submitted by the claimant. O.P. no. 2 thereafter, send the claim form along with required document to O.P. no. 1 on 09.06.2011.
5. O.P. no. 1 on 17.08.2011 and 02.11.2011 further demanded some more documents from complainant, which was submitted on  30.09.2011 and 03.12.2011 upon which investigator was appointed by O.P. no. 1 to enquire into the claim and all required documents were collected by him and send to O.P. no. 1 but still claim was not settled then legal notice was sent to opposite parties but no reply was received as such complainant filed consumer complaint case upon which notices were issued to opposite parties.
6. O.P. no. 1 in its written statement admitted complainant was insured as member of Golden Multi Services Club, however complaint case was time barred. Cause of action for filing complaint case is accidental injury suffered on 09.03.2009 but complaint case was filed on 24.06.2013 i.e after lapse of more than 4 years.
7. Onus is upon complainant to prove permanent disablement due to accidental injury and such accidental injury is to be reported within 30 days to insurance company and claim form along with all required documents is to be submitted within 90 days from the date of accident.
8. Insurance company was intimated for the first time on 19.04.2011 about the accident and explanation for inordinate delay in intimation was not satisfactory and convincing. Claim paper were submitted to O.P. no. 2 on 07.06.2011 and same was forwarded to O.P. no. 1 on 13.06.2011.
9. Cause of disablement is due to attack of paralysis which is a disease and not due to any accidental injury. From Certificate of disablement issued by Civil Surgeon, Vaishali it is evident that cause of disablement is mentioned as “ Rt sided Hemiplegia” and under medical science “HEMIPLEGIA” means “paralysis of one side of the body especially of the arm and leg”. It is also submitted that “ Hemiplegia” is a result of “brain lesion” caused due to ‘internal pathological alteration of tissue in brain”.
10. As per terms and conditions of the policy risk covered is limited to the extent of “death, permanent total disablement, loss of limbs, loss of eyes of insured person resulting solely or directly from accident cause by external, visible and violent means”
11. Opposite party no. 2 in its w.s has stated that the insurance claim is to be settled by opposite party no. 1 and opposite party no. 2 has forwarded the claim form along with all other documents submitted by complainant to the opposite party no. 1 for settlement of the claim.
12. The District Consumer Forum after hearing the parties and considering the materials available on record has held that since the claim of complainant was pending before National Insurance Company (opposite party no. 1) and same was not decided either way as such complaint case is not time barred.
13. The District Consumer Commission has further held that opposite party no. 1 has not produced any medical authority that Hemiplegia can not happen due to accidental fall and allowed the complaint case of complainant by impugned order against which present appeal has been filed on behalf of appellant.
14. Heard counsel for the parties and considered their submissions. Perused the impugned order as well as materials available on record and written notes of argument filed on behalf of parties.
15. Complainant had purchased Janta Personal Accident Insurance Policy in which insured amount was to be paid in case of death, permanent total disablement, loss of limbs, loss of eyes of insured person resulting solely and directly from accident caused by external visible and violent means.
16.  Insurance policy is a contract between the parties and both are bound by terms of contract.
17. In order to succeed complainant was required to establish that permanent disablement suffered by him was on account of accidental injury for which reliable and cogent evidence was required to be produced by the complainant. In the legal notice send by complainant it is stated that complainant suffered polio attack on 09.03.2009 at about 11:40 PM and thereafter, he was treated by different doctors but could not be cured and he became disabled. However, in complaint case a different story has been developed that complainant met an accident on road on 09.03.2009 at about 11:40 PM and during treatment he fell down in bathroom on 01.04.2009 and suffered paralytic attack and became disablement.
18. In the disability certificate granted by Civil Surgeon the cause of disablement has been stated to be right side Hemiplegia which means paralysis of one side of the body especially of the arm and leg as a result of brain lesion caused due to internal pathological alteration of tissues in brain.
19. Under the terms and conditions of the insurance policy within 30 days of accident insurance company has to be informed but intimation was given on 19.04.2011. Further, within 90 days claim form is to be submitted along with all required documents but same was submitted on 01.06.2011 after more than two years which was in-violation of terms and condition of insurance policy and no valid explanation for such inordinate delay has been given which disentitles complainant from insurance claim.
20. Complainant has failed to establish that he suffered permanent disablement on account of any accidental injury rather from materials placed on record, it is evident that complainant suffered permanent disablement due to disease as such complainant did not satisfy the terms and conditions of insurance policy for payment of insurance claim.
21. It is true that genuine and bonafide claim should not be denied only on the ground of delay if delay is satisfactorily explained but present case does not appear to be genuine and bonafide rather an after thought as in legal notice dated 02.03.2013 send to insurance company complainant stated that he suffered polio attack on 09.03.2009 and subsequently suffered disablement para 3 of legal notice is extracted below.
22. यह  कि इसी बीच मेरे मोवक्किल को दिनांक 09.03.2009 के रोज 11:40 में पोलियो अटैक किया उसके बाद मेरे मोवक्किल ने इलाज करवाया लेकिन वह इलाज में असफ़ल रहा जिस कारण वह अब लिखने में भी  असमर्थ है I पूर्व में मेरे मुवक्किल द्वारा जितने भी पत्राचार किये गए हैं उन सभी कागज़ातो पर मेरे मोवक्किल के बाये हाथ के अंगुठे का निशान है  I”
22. Complainant has not adduced any medical evidence to even remotely suggest that he suffered disability due to accidental injury rather his stand that he suffered injury in road accident on 09.03.2009 and accidental fall on 01.04.2009 in bathroom is an after thought. There is no medical evidence to show that complainant sustained any kind of accidental injury caused by external visible and violent means which forms the basis of insurance claim.
23. The District Consumer Forum has wrongly shifted burden on the insurance company rather onus lies upon complainant to establish that he suffered disability due to accidental injury in which he has miserably failed.
24. For the reasons as stated above, the judgment and order dated 05.05.2017 passed by District Consumer Forum, Vaishali at Hajipur in complaint case no. 84 of 2013 is neither sustainable in law nor on fact and is accordingly set aside.
25. Appeal is allowed and complaint case no. 84 of 2013 filed before the District Consumer Forum, Vaishali at Hajipur is dismissed.

 ( Ram Prawesh Das)                                        (Raj Kumar Pandey)                                         (Sanjay Kumar,J)

       Member                                                             Member                                                           President

Md. Fariduzzama