Per Mr. Narendra Kawde - Hon’ble Member:
1. This appeal is directed as against the order dated 21.03.2012 passed by the District Consumer Disputes Redressal Forum, Mumbai Suburban in Consumer Complaint No.42/2009. The District Forum while partly allowing the consumer complaint preferred by present Respondent/original Complainant, holding the deficiency in service against the Appellant/Opponent, directed to pay an amount of `60,905/- on account of medical expenses together with interest @9% per annum effective from 9th January, 2009. The District Forum granted ancillary relief of `10,000/- on account of costs. Aggrieved thereby the Appellant/Opponent Insurance Company – Cholamandalam M.S. General Insurance Co. Ltd., has preferred this appeal on the ground that the policy terms and conditions do not permit settlement of insurance claim on account of personal accident cover as provided under section IV of the policy terms and conditions.
2. Heard. Perused the record.
3. There is no dispute regarding the insurance policy subscribed by the Respondent/original Complainant providing insurance cover to the vehicle with total insurance value of `1,12,500/-. Additionally, personal accident cover for the owner-driver is also available for `2,00,000/- with rider, stipulated under section IV (terms and conditions of the policy). Admittedly, the Complainant met with an accident during the validity period of the insurance policy and underwent medical treatment. The certificate issued by Dr.Naresh M. Khanna, MS (Ortho)(Mumbai) reveals 62% partial permanent disability of the Complainant consequent to accident. Both parties relied on the terms and conditions supported under the policy. Personal accident cover is spelled out in Section IV of the terms and conditions of the policy of the Owner-cum-Driver with rider. The condition stipulates as below:
| Nature 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% |
4. In the case on hand the Complainant met with an accident sustained injuries and declared 62% partial permanent disability. This contingency is not covered for extending scale of compensation as spelled out in terms and conditions of the policy. The Ld.Advocate for the Appellant/Opponent Insurance Company drawn our attention to the provisions spelt out in the policy documents itself. Neither the Complainant nor his Advocate were present during the course of arguments, therefore, we heard the appeal in the absence of Respondent/original Complainant and reserved for the orders.
5. We have carefully gone through the claim of the Complainant and perused the record. The Appellant/Opponent Insurance Company relied on orders and judgement passed in M.A. No.2759 dated 14.10.2010, National Insurance Co. Ltd. V/s. Nitin and others, reported in 2011 ACJ 1793 . Since the case pertains to a decision of the Motor Accident Tribunal under challenge before the Hon’ble High Court, Madhya Pradesh, though such remedy is certainly available to the Complainant under the Provisions of Motor Vehicles Act, 1988, the Complainant can also avail additionally remedy available before the Consumer Forum for deficiency in service. The appellant/opponent Insurance Company has also relied upon the decision of the High Court of Kerala at Ernakulam, (Marakkar and Another V/s. State of Kerala and another) reported in 2011 ACJ 1795. Ratio of this judgement is also not applicable to the case on hand since the facts of the case are different.
6. The insurance is a contract of utmost good faith and the terms and conditions supported to such contract are required to be enforced strictly. Both parties rely on the said terms and conditions. Obviously, the claim of the Complainant is not covered under the provisions of terms and conditions of the policy spelled out in Section IV appended to the policy as only total permanent disability of 100% is covered. The District Forum erroneously arrived at conclusion holding deficiency in service against the Insurance Company and awarded compensation as per impugned order.
7. Considering the facts and circumstances of the case, the Complainant’s disability certificate does not meet with the requirement of the terms and conditions of the policy for claiming compensation on account of personal accident cover. Therefore, the impugned order passed by the District Forum deserves to be quashed and set aside by allowing the present appeal. We hold accordingly and pass the following order:
O R D E R
Appeal is allowed.
Order passed by the District Forum in Consumer complaint No.42/2009 is hereby quashed and set aside.
No order as to costs.
Inform the parties accordingly.
Pronounced on 13th May, 2013.
