THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.485/2011
Dated this the 12th day of June, 2017
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, M.A., L.L.B : Member
ORDER
Present: Rose Jose, President:
This petition is filed under Section 12 of Consumer Protection Act, 1986 for getting an order directing the opposite parties to pay to the petitioner Rs.2,00,000/- with interest at 15% per annum towards compensation for the permanent disability, Rs.2,00,000/- for treatment expenses, Rs.25,000/- for the inconvenience suffered, Rs.5,000/- as cost of the proceedings.
The case of the petitioner is that, he is the registered owner of Auto rickshaw bearing No. KL57-B-2317 and the said vehicle is insured with the 1st opposite party having Policy No. 23142000207800. He is having valid licence with badge to drive the three wheelers and he is plying the vehicle as taxi by himself as a means of self employment for earning his livelihood. On 18/07/2010 while he was driving the vehicle adhering to all traffic rules with two passengers, it met with an accident and he sustained serious and permanent bodily injuries. After the accident he became completely bed ridden and is not able to do any work as done before and continio0us treatment is required for recovery. He was admitted at Baby Memorial Hospital and had underwent surgery and his thump of left hand amputed. Before the accident he was earning more than Rs.15,000/- per month by plying the said vehicle and due to the accident he suffered permanent disability and became unable to drive the vehicle further. More than Rs.2,00,000/- has been spent for the treatment also.
The auto rickshaw was also badly damaged in that accident and the claim for the loss of the vehicle was partly indemnified by the opposite party, but the claim towards personal injuries was rejected stating untenable reasons. The petitioner alleged that the opposite parties had collected Rs.100/- as premium towards personal accident coverage for owner-driver and Rs.25/- as per the endorsement No. 11 in the policy and so they are liable to compensate him for the expenses incurred by him due to the injury and permanent disability. The repudiation of his legitimate claim for the personal injury and permanent disability benefit is deficiency in service on their side and that caused much mental pain, huge financial loss and other difficulties to him. Hence this petition.
The opposite parties in their version admitted the issuance of the policy towards the petitioner vehicle for the period from 12/08/2008 to 11/08/2009. It is contended that the policy is governed by its terms and conditions and as per the terms of the policy issued to the petitioner, it does not provide any cover with respect to reimbursement of medical bills, permanent disability, loss of earning, pain and suffering caused, as alleged by the petitioner. The petition is filed claiming compensation for the medical expenses, permanent disability, other losses caused to the petitioner but actually the policy coverage is intended for “Third Party liability in respect of any accident occurred to any third person and this charges can be claimed only before the Hon’ble Motor Accident Claim Tribunal and Forum has no jurisdiction to entertain or decide this matter as per the statutory provision envisaged under Section 165 of Motor Vehicle Act.
It is further stated that the Thirty Party claim can be made by a third party to the contract of insurance and the insured cannot be a claimant for making third party claim as there is no contract for paying any other expenses other than Owner Damage claim to the petitioner under the terms of the Policy and hence this petition is not maintainable at all. The policy issued to the petitioner does not cover any charges like medical expenses, conveyance, pain and suffering, loss of earnings, partial disability etc. that the petitioner had sustained. The petitioner had filed this petition before this Forum very cunningly as the insured petitioner cannot lay a third party claim before the MACT.
The allegation that they have collected Rs.100/- towards personal accident coverage is admitted by the opposite parties but it is contended that the said coverage is only for death, loss of two limbs or sight of two eyes, loss of one limb or sight of one eye and permanent total disablement from injuries other than named above. Here in this case the injuries noted was only the amputation of left hand thump which does not come under the disabilities specified above. As such they cannot treat this injury as a permanent total disability. The policy is a contract between the insurer and the insured and hence the insured cannot claim anything more than what is provided under the policy conditions. They have already paid Owner Damage Claim of the petitioner as per the terms covered under the policy. Hence there is no deficiency in service on their part as alleged. They have acted only as per the terms and conditions of the policy. All other allegation of the petitioner is denied by them as false and frivolous. The petitioner is not entitled to get any of the reliefs sought for in the petition and hence prayed to dismiss the petition with cost to them.
The matters to be decided are:
Whether there is any deficiency in service on the part of the opposite parties?
Reliefs and cost if any?
Evidence consists of the affidavits filed by the petitioner, the opposite parties, Ext.s A1 to A7, B1, X1 and deposition of PW1 and RW1.
Point No. 1: The petitioner averred that even though he is holding a valid policy of the opposite parties, they have denied his claim towards personal injuries sustained in an auto rickshaw accident. The vehicle is also got serious damages. He is the owner of the said vehicle and he himself was driving the vehicle at the time of accident. The vehicle was covered under comprehensive policy. The opposite parties have indemnified partly towards the damages caused to the vehicle but denied his claim for personal injuries benefits. They have collected Rs.100/- as premium towards personal accident coverage for Owner-Driver and Rs.25/- as per the endorsement No.11 in the policy. So they are bound to honour his claim for personal injuries and its denial is deficiency in service on their side. He had spent more than Rs.2,00,000/- for the treatment. So he is entitled for the reliefs sought for in the petition. He produced Ext.s A1 to A7 to prove his case. Ext A1 is the copy of fitness certificate, A4 is the copy of permit, Ext. A5 is the copy of badge, Ext. A6 is the copy of wound certificate dated 18/07/2010 and Ext. A7 is the copy of policy certificate for the period from 12/08/2010 to 11/08/2011.
There is no dispute with regard to the validity of the policy and the date of occurrence of the accident. The opposite parties also admitted the collection of Rs.100/- towards personal accident coverage but according to them as per Section IV of the policy conditions – Personal Accident cover for Owner-Driver - the said coverage is only for death, ,loss of two limbs or sight of two eyes, loss of one limb or sight of one eye, and for permanent total disablement from injuries other than the said ones. They produced the copy of the policy schedule with policy conditions and was marked as Ext. B1. The learned counsel for the opposite parties argued that the injury sustained to the petitioner was amputation of left thump and it does not come under the disabilities specified under Section IV of the policy terms. Section IV-PERSONAL ACCIDENT COVER FOR OWNER – DRIVER read “Nature of injury 1) Death, seal of compensation 100%, loss of two limbs or sight of two eyes – 100%, loss of one limb or sight of one eye – 50% and permanent total disablement from injuries other than named above – 100%”. It is argued that the policy is a contract between the insurer and the insured and any of the parties to that contract cannot go beyond the terms of the policy. The insured cannot claim more than what is permissible under the scope of the policy and the insurer cannot provide anything more than what is provided under the policy terms. They have already paid the own damage claim of the petitioner. This was admitted by the petitioner also. It is further argued that nowhere in the policy issued to the petitioner covers any charges like medical expenses, pain and sufferings, loss of earning, partial disability etc. and it is intended to Third Party only. The disability caused to the petitioner is only a partial disability and not a total permanent disability envisaged under Section IV of the policy conditions. The petitioner was examined as PW1. In cross examination PW1 admitted that he is having no problems in his body except the loss of the thump. (Page -1 PW1). So they have rightly repudiated the claim of the petitioner for personal injuries and hence there is no deficiency in service on their side in denying the said claim.
Considering the facts stated and evidence on records, it is found that the repudiation of the personal injury claim of the petitioner is according to the terms and conditions of the policy and so we cannot attribute any deficiency in service on the opposite parties in rejecting the claim. Point No. 1 found against the petitioner.
Point No.2: In view of the finding in Point No. 1, this petition is liable to be dismissed and the petitioner is not entitled to get the reliefs sought for in the petition.
In the result, this petition is dismissed. Parties will bear their cost.
Dated this the 12th day of June, 2017
Date of filing: 07/12/2011
SD/-MEMBER SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Copy of RC Book
A2. Copy of tax receipt
A3. Copy of fitness certificate
A4. Copy of contract carriage certificate
A5. Copy of driving licence
A6. Accident-Register-Cum Wound-Certificate
A7. Copy of policy
Documents exhibited for the opposite party:
B1. Copy of the policy schedule with policy conditions
Witness examined for the complainant:
PW1. Shiju K.S. (Complainant)
X1. Bills (50 in No. series)
Witness examined for the opposite party:
RW1Sanjay Kumar, 1/I/5, Star Home Apartments, Cochin
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
