Tarlok Singh S/o Sh. Mast Singh Aged About 48 years, resident of village Karanpur, Post Office Nanakpur, Tehsil, Kalka, District Panchkula.

……Appellant(s)

V e r s u s

1.       M/s Swaraj Mazda Limited, Village Asron, Near Ropar, District Nawan Sahar, Punjab.

2.       The New India Assurance Company Ltd., SCO No.104-106, Sector 34-A, Chandigarh through its divisional manager.              

 ....Respondent(s)

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Sh. H.P.S. Ishar, Adv. for the appellant.

                   Ms. Jaimni Tiwari, Adv. proxy for Sh. Rajneesh Malhotra, Adv. for respondent No.1 

                   Sh. V. Ramswaroop, Adv. for respondent No.2

PER  JAGROOP  SINGH   MAHAL, MEMBER

          This is complainant’s appeal against the majority order dated 10.6.2011 and 1.7.2011 passed by the learned District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) whereby the complaint filed by him was dismissed. .

2.                           According to the complainant he was working as an operator in the office of OP No.1 and as such, he was insured by OP No.2 under Personal Accident Insurance Policy, which was valid for the period from 26.9.2007 to 25.9.2008. On 10.8.2008 at about 6:15 AM, when the complainant was on his way to office, his motorcycle skidded and the complainant suffered multiple injuries. It was pleaded that  the complainant was declared disabled to the extent of 10% by the Medical Board of General Hospital, Sector 6, Panchkula vide Disabilities Certificate dated 18.2.2009. It was stated that he requested OP No.1 to pay him compensation under PPD (Permanent Partial Disablement) Benefits and also submitted the copy of the Disabilities Certificate with it. Accordingly, OP No.1 vide its letter dated 24.2.2009 forwarded the case of the complainant to OP No.2 to pay him such compensation. OP No.2 vide its letter dated 23.4.2009, replied that it had already released the compensation under TTD (Temporary Total Disablement) Benefits for a sum of Rs.16,000/- on 4.11.2008 and expressed their inability to entertain the claim of the complainant. According to the complainant he was entitled to a sum of Rs.95,000/- as compensation under Permanent Disability to the extent of 10% and as OP No.2 was liable to pay an amount of Rs.79,000/- more apart from Rs.16,000/- already paid to the complainant. Despite several requests the grievance of the complainant was not redressed. Hence this complaint.

3.                 OP No.1 in its reply pleaded that It was not liable to pay the claim as it had taken the policy on behalf of its workers in which the complainant was one of the insured and duly forwarded the claim of the complainant to OP No.2, who had already released an amount of Rs.16,000/- on account of temporary disablement benefit to the complainant.  The claim payment was to be made by OP No.2 only. Denying all other allegations of the complaint, a prayer was made by OP No.1 for dismissal of the complaint.

4.                 In its reply OP No.2 admitted issuance of policy. It was stated that after the receipt of the claim through the employer, it was processed and the claim was settled for Rs.16,000/- and the same was paid to the complainant  through cheque on 4.11.2008 under TTD benefits. It was further stated that the subsequent claim filed for the release of compensation under PPD (Permanent Partial Disablement) Benefits through employer on 24.2.2009 was repudiated vide its letter dated 23.04.2009 as the complainant had already been granted benefit under TTD benefits. Pleading no deficiency on its part OP No.2 prayed for the dismissal of the complaint.

5.                           Parties led evidence in support of their case. 

6.                           The arguments were heard by the Bench consisting of the President and one Member thereof. The order dated 10.6.2011 was dictated by the learned President dismissing the complaint. However, the other learned Member did not agree with the same and dictated a separate dissenting judgment dated 15.6.2011. In view of Clause (2A) of Section 14 of the Consumer Protection Act, the case was put up before the learned third Member of the District Forum, who vide his order dated 1.7.2011 dismissed the complaint. In this manner as per the majority judgment dated 10.6.2011 read with order dated 1.7.2011 the complaint was dismissed.

7.                           Feeling aggrieved, the instant appeal has been filed by the appellant/complainant.

8.                           We have heard the ld. Counsel for the parties and have perused the record.

9.                            The contention of the appellant/complainant is that the complaint has been wrongly dismissed by the learned District Forum vide impugned majority order 10.6.2011 read with order dated 1.7.2011, as it failed to interpret exception 1 of the Personal Accident Insurance Policy Group (Annexure P-3) correctly. The said condition is as follows:

The company shall not  be liable under this policy for:

1.   Compensation under more than one of the forgoing subclauses in respect of the same period of disablement of the insured person.

The sole question for decision is whether the complainant was claiming compensation under more than one of the sub-clauses in respect of the same period of disablement. This question has been rightly dealt with by the learned single Member of the District Forum vide order dated 15.6.2011 in the following words;

2.  In this situation it would be incorrect for the OP to take a stand that because compensation for temporary injury has been given, therefore, compensation for permanent injury cannot be given. We have to bear in mind that temporary and permanent injuries are only concepts created to define the severity of the injury. The common and binding feature being the injury itself. In the light of this ephemeral distinction, which has fructified by practice, an injured cannot be denied compensation for the injury sustained, bringing into effect and highlighting this alleged distinction. The liability of the insurance is to compensate for the injury, be it temporary or permanent and hence, they cannot be absolved of their liability under the law in this regard. OP is thus, in my view, liable to compensate for the permanent injury to the complainant.  The policy in Clause 1 clearly highlights the compensation for both temporary and permanent injuries. If a temporary injury becomes a permanent one, it will not be a case of compensating twice for the same injury but a higher compensation definitely has to be given commensurate with the permanent injury, which is 50% of the policy amount in the present case.

It is not the case of the complainant that for the said injury he should be paid Temporary Total Disablement benefit and also Permanent Partial Disablement benefits. This Clause would be applicable only if the complainant is praying for compensation for one injury under both the above mentioned heads. In the present case the complainant is asking for compensation only for one injury which was subsequently declared a Permanent Partial Disablement. The Single Member of the learned District Forum therefore, rightly held the complainant entitled to the compensation for the Permanent Partial Disablement minus the amount he had already received as temporary total disablement compensation.

10.             In view of the above discussion, we are of the opinion that the learned District Forum through the impugned majority judgment went wrong in dismissing the complaint. The order does not properly interpret the exception  No.1 under the policy of Insurance. Since the complainant is entitled to the Permanent Partial Disablement, we allow the appeal, the impugned majority order is accordingly set aside and the complaint is allowed with costs. The OP/respondent No.2 is directed to determine the claim amount under permanent partial disability clause and after deducting the amount of Rs.16,000/- already paid to the complainant under temporary total disablement, the remaining amount shall be paid to the complainant. Since the OP No.2 has caused harassment to the complainant, it shall also pay Rs.10,000/- as compensation alongwith litigation costs of Rs.5,000/-. The entire amount shall be paid within 30 days from the date of receipt of a copy of the order, failing which, they shall be liable to pay the entire amount with penal interest @12 p.a. w.e.f. 24.3.2009 (i.e.  one month after the date of  claiming compensation under PPD as mentioned in Annexure P2) till its payment to the complainant.  

          Copies of this order be sent to the parties free of charge.

Pronounced.                                                                   Sd/-

9^th December, 2011                             [JUSTICE SHAM SUNDER]

PRESIDENT

                                                                        Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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