ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not honoring the insurance given to him in respect of permanent partial disability and for compensation of Rs.20 lakh for the same and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant is working as head constable at Boarder Security Force, BSF Camp, Fatikchera Location, Mohanpur Post, Agartala District, West Tripura, and earning Rs.65,000/- pm.  He is native of Karnataka and on 19.10.2019 when he was riding his motor bike KA 43 Q 2007 on Doddaballapura-Narasimhana Halli Road, Near Gadabachahalli, an Autorickshaw came from opposite side and dashed to his motor cycle as a result, he fell down and sustained grievous injury to his body and there was a fracture.  He gave a complaint to police, and police registered a rash and negligent driving u/s 279, 337 IPC.  He is having permanent partial disability of 40% in respect of his body.  He had taken a “Sarv Suraksha Policy” from OP by paying a premium of Rs.6,685/- for a period 08.08.2017 to 07.08.2022.  OP in respect of the said accident policy has only given Rs.1,00,000/- whereas it has not been compensated for the permanent partial disability.  He is suffering huge financial loss, and facing hardship due to the act of the OP.  He had sent email correspondences with OP to pay the compensation which OP has failed.  The act of not paying the compensation though covered under the insurance amounts to deficiency in service and hence prayed the Commission to order the OP to pay compensation of Rs.20 lakh by allowing this complaint.

3.      Upon the service of notice, OP did not appear before the Commission and hence placed exparte. Afterwards, OP made an application u/o IX rule 7 CPC to set aside the exparte order and the same was allowed by imposing cost of Rs.1,000/- and permitted to participate in the proceedings and time was also given to OP to adduce evidence.  Without filing the version, one Sandeep S.R., authorized person of OP examined himself as RW1 and got marked five documents on its behalf.  

4.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

5.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

6.     POINT No.1:-

   Perused the complaint, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant obtained “Sarva Suraksha Insurance Policy” from OP by paying Rs.6,685/- for a period of 08.08.2017 to the midnight of 07.08.2022.  As per the FIR and Police Report, Mahazar, it becomes clear that he met with an accident on 19.10.2017 and was admitted to Columbia Clinic at Doddaballapur.  He was having right leg swelling with wound over anterior aspect of middle right leg bone exposed and he was discharged on 23.10.2017.  He underwent procedure/surgery on 20.10.2017 for type 2 communited fracture, mid-shaft right tibia segmental fracture, middle third right fibula CLW I web space right foot.  Wound debridement and IM nailing right tibia was done.  Follow-up x-ray- taken delayed union at fracture site, dynamization of IM nail done under local anesthesia, one month post dynamization x-ray shows fracture united.

        7.     It is admitted by OP through letter that, the claim was made for disability and the same was refused /repudiated on the ground that the injury or the disability suffered by the complainant is temporary non progressive and likely to improve and does not fall under permanent total disability benefit and as per section 2, the claim not admissible. In the event of accidental bodily injury causing the insured permanent disablement as mentioned in the PTD table, within 12 months of the accident injury being sustained, the company will pay the percentage of the sum insured specified for each and every form of impalement mentioned in the PTD table in the policy.  The permanent disablement of the complainant do not meet the requirement of its ability as per the terms and conditions under which the policy issued.

        8.     It is against this decision of the OP for rejecting the claim, this complainant has preferred this complaint.  He has also produced the certificate issued by the Directorate for the empowerment of differentially abled and senior citizens, Bangalore, under Sl/Certificate No.888330, the said Directorate has issued a Disability Certificate stating that he is having locomotors permanent disability to the extent of 40% and it is progressive and not likely to improve, which is quite contrary to the stand taken by the OP while denying the claim.  In view of this certificate issued by the disability authority and as no contra evidence is produced by OP to show that the permanent partial disability as mentioned in the certificate is false or that it is nonprogressive and likely to improve is produced.  Further OP has not taken any steps to get the complainant refer to the Medical Board to assess whether the complainant has permanent partial disability which will improve after some days or that it is not progressive and that not likely to improve as the days go on.  In view of this, we hold that though the complainant has 40% partial permanent disability in respect of right leg, denial of the claim by OP to the extent for which insurance has been provided amounts to deficiency in service.  Hence we answer point No.1 in the Affirmative.

9.     POINT NO.2:

The copy of the insurance certificate is also produced wherein the complainant has taken the insurance for accidental death, permanent total disability/permanent partial disability, accidental hospitalization, credit shield insurance, and for critical illness.  Complainant has stated that he has received Rs.1,00,000/- from the OP and we presume that this is in respect of the accidental hospitalization as the insurance policy under “Sarv Suraksha” covers for one lakh rupees under the head accidental hospitalization.  The said insurance policy also provides a sum insured for Rs.8 lakhs for permanent total disability and permanent partial disability.

10.   It is to be considered here that the complainant is still working with the BSF and getting salary of Rs.65,340/- as per the salary certificate produced by him for the month of March 2019. That means he is still working in the department. Probably he is not given the work as he was doing earlier prior to the accident.  In view of this he has not been affected financially.  

11.   He has also produced copy of the photo to show that his right leg is partial disability.  On perusing the same to the necked eye, one can see the swelling.  But from that alone we cannot decide as to the percentage of disability.  The Directorate of Employment or differentially abled and Senior Citizen, Bangalore, has assessed with the help of the medical experts and has come to the conclusion that permanent partial disability is 40% in respect of locomotors i.e., in respect of the right leg only.  When the same is considered to the whole body, it may be 10 to 15%.  Hence and since the cover under partial permanent disability is for Rs.8 lakh and the total body disability is taken into consideration at 15%, complainant is entitle for compensation of Rs.90,000/- only. Since the complainant is made to suffer mentally, physically and put him under mental agony and physical hardship by OP by rejecting his claim, we are of the opinion that if a sum of Rs.25,000/- as damages under the said heads, and Rs.5,000/- towards litigation expenses if awarded, would be proper, reasonable and just under the circumstance. Hence we answer Point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to pay Rs.90,000/- along with interest at 12% from the date of claim to till payment of the entire amount.
3. OP is further directed to pay a sum of Rs.25,000/- towards damages and Rs.5,000/- towards litigation expenses.
4. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 22^nd Day of OCTOBER 2020)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Motor Vehicle Accident report

Ex P2: Copy of the FIR

Ex. P3: Copy of Complaint

Ex P4: Copy of the Charge Sheet

Ex P5: Copy of Panchanama

Ex P6: Copy of Wound Certificate

Ex P7: Sarva Suraksha Policy

Ex P8: Copy of Disbursement advise

Ex P9: Copy of Repudiation letter

Ex P10: Copy of pay slip

Ex P11: Copy of Authorization letter by BSF to take treatment in Colombia Asia Hospital

Ex P12: Copy of Discharge summary issued by the said Hospita

Ex P13: Copy of Disability Certificate issued by Government of Karnataka

Ex P14: Copy of scanned photograph

Ex P15: Voter ID card

Ex P16: Copy of the legal notice

Ex P17: Acknowledgement card.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri. Sandeep S.R.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Power of Attorney executed in my favour to represent the company

Ex R2: Copy of the Insurance Policy along with terms and conditions

Ex R3: Copy of the claim form (2 in Nos.)

Ex R4: Copy of the repudiation letter

MEMBER                                PRESIDENT