THE DISTRICT CONSUMAR DISPUTES REDRESSAL FORUM No.419, Ist Floor,. H.N. Gowda Building, M.B.Road, Kolar-563101 consumer case(CC) No. CC/09/193
Sri. N.Shankar,
...........Appellant(s)
Vs.
M/s,IFFCO-TOKIO General
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
CC Filed on 18.12.2009 Disposed on 09.06.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR. Dated: 9TH DAY OF JUNE 2010 PRESENT: Sri. G.V.HEGDE, President. Sri. T.NAGARAJA, Member. Smt. K.G.SHANTALA, Member. --- Consumer Complaint No. 193/2009 Between: Sri. N. Shankar, S/o.Chikkanarayanappa, Aged About 25 years, R/at: No.109, Dhanmattnahalli Village, Kolar Taluk & District. .Complainant -V/s- M/s. IFFCO-TOKIO General- Insurance Company Limited, No.41, 2nd Floor, Christu Complex, Lavelle Road, BANGALORE-01. Rep. by its Branch Manager. .Opposite Party. ORDERS This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite party to pay a sum of Rs.1,00,000/- to the complainant towards personal accident benefit with costs and interest etc.,. 2. The material facts of complainants case may be stated as follows:- That the complainant is the owner of Bajaj Pulsar - 180 Motor Cycle bearing registration No.KA-07/Q-7506. This vehicle was insured with OP vide policy No.40753463 for the period from 05.01.2009 to 04.01.2010 including personal accident cover for Rs.1,00,000/- to Owner : Driver. On 11.06.2009 at about 9.00 PM when the complainant was returning to his village from Vemgal with his friend Ramesha as pillion rider, near Sheetihalli Village another Motor Cycle bearing registration No.KA-07/K-9772 came from opposite side in a rash and negligent manner and dashed against the motorcycle of complainant, thereby the complainant as well as the pillion rider Ramesha sustained injuries. The complainant sustained (1) Closed fracture mid-shaft of right femur and (2) Fracture and un-displaced medial condyle of right femur. The complainant spent huge amount for treatment. It is alleged that the complainant was hale and healthy prior to accident and he was a car driver by profession earning Rs.4,000/- to Rs.5,000/- per month and subsequent to the accident in spite of best treatment the complainant could not recover as earlier and he could not do his earlier profession of car driving and thereby he became permanently crippled person suffering permanent total disablement. The complainant got issued legal notice on 07.11.2009 to OP to pay the benefit under personal accident claim, but the OP disallowed the claim on insufficient grounds. Therefore the complainant has filed the present complaint on 18.12.2009. 3. In response to the notice issued by this Forum, the OP appeared and filed version. The issue of insurance policy including the coverage of personal accident benefit is not disputed. The happening of accident alleged in the complaint is not denied. The allegation of the complainant that, he sustained permanent total disablement from the injuries sustained in the accident is denied. It is contended that, as per the medical certificates produced by the complainant, at best he sustained partial disablement but not permanent total disablement, thereby as per the terms of policy the complainant is not entitled to get any benefit under personal accident claim. Further it is contended that, the complainant has not intimated the accident within time and further that apart from complainant there were two pillion riders on the Motor Cycle at the time of the accident, whereas the seating capacity was only two including the rider. Therefore it is contended that, the complainant violated the terms and conditions of the policy, hence he is not entitled to claim any amount. 4. The complainant and one Gunashekar on behalf of OP filed affidavits by way of evidence. The parties filed the required documents. 5. We heard the arguments of the learned counsel for the parties. 6. From the rival contentions the following points arise for our consideration:- (1) Whether the repudiation of the claim by OP is illegal? (2) If Point No.1 is held in Affirmative to which reliefs the complainant is entitled? (3) What order? 7. After considering the submissions of parties and the evidence on record our findings on the above points are as follows:- POINT No.1:- In the Negative POINT No.2:- Does not arise for consideration POINT No.3:- As per final order REASONS POINT No.1:- 8. The OP opposed the claim on the grounds that (a) that there were two pillion riders on the Motor Cycle in question at the relevant time contrary to the permitted seating capacity of one rider and one pillion rider; (b) that the permanent partial disablement is not covered under the terms of policy for payment of compensation. The first ground urged by OP is not material as it is not shown that the said contravention led to cause accident. Therefore on this ground the claim could not have been rejected. The other ground urged is that under the terms of contract permanent partial disablement is not covered for awarding any compensation. The relevant part in the policy is as follows:- SECTION IV PERSONAL ACCIDENT COVER FOR OWNER DRIVER., Subject otherwise to the terms and exceptions conditions and limitations of the policy, the Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or traveling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in: 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% Provided always that The compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner-driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.1 lakh during any one period of insurance. This cover is subject to (a) the owner-driver is the registered owner of the vehicle insured herein: (b) the owner-driver is the insured named in this policy. (c) the owner-driver holds an effective driving license, in accordance with the provisions of Rule-3 of the Central Motor Vehicles Rules, 1989, at the time of the accident. The policy schedule contains Drivers Clause as follows:- Any person including the insured : Provided that a person driving holds an effective Driving License at the time of the accident and is not disqualified from holding or obtaining such a license, Provided also that the person holding an effective Learners License may also drive the vehicle and that such a person satisfies the requirements of Rule-3 of the Central Motor Vehicles Rules, 1989. The learned counsel for complainant contended that, permanent partial disablement sustained due to the injuries suffered in the accident, also falls under Clause-IV of the Injuries described in the policy and in the case of partial total disablement the scale of compensation would be reduced to the extent of percentage of partial total disablement to that of permanent total disablement. On the other hand the learned counsel for OP contended that, permanent partial disablement is not at all covered under the terms of contract and there is no question of awarding any compensation for permanent partial disablement. After considering the rival contentions, we think that the contention of the learned OP is correct. The compensation in the case of personal accident cover is governed by terms and conditions of the policy. If permanent partial disablement is also included in Clause-IV, it would have been specifically provided how to calculate the compensation in the case of permanent partial disablement. In the absence of such term the compensation can be awarded only to the nature of injuries described in Clause-(i) to (iv) stated in the policy. If any injury falls outside the category of injuries (i) to (iv) the Insurance Company is not liable to pay compensation. The learned counsel for complainant relied upon the decision citied in M.F.A. No.15099/2007 (MV), between The Oriental Insurance Co. ltd., -V/s- Sri Parameshwarappa K.H. decided on 11th Day of September 2009 by our Honorable High Court, in support of his contention. But we think this decision does not support such contention. On the other hand it is held in this decision that the liability of Insurance Company should be decided on the terms and conditions of the contract entered between the parties. In this case for certain permanent partial disablement the Claim Tribunal had awarded compensation under Personal Accident Cover as in the case of injuries sustained by third party in motor accident. Therefore the matter was remanded with a direction to decide the liability on the basis of contractual terms. There is an observation in this decision which is as follows:- In the case on hand, injuries suffered by claimant falls under item No.iv of table viz permanent total disablement from injuries other than named it and iii. The scale of compensation is shown as 100% i.e., Rs.1,00,000/-. The learned counsel for the Complainant relied upon the above observation in support of his contention. But we think this observation cannot be taken as the ratio of this decision. As already noted the specific direction in that decision to the Claim Tribunal was to determine compensation with reference to contractual obligations set out in the policy. Therefore we hold that, permanent partial disablement does not attract any liability to pay the compensation by the Insurance Company, in the absence of a specific term for payment of compensation in respect of permanent partial disablement from injuries sustained in the accident. For the above reasons we hold that, the complainant is not entitled to any compensation in respect of the injuries suffered by him in the accident. Hence Point No.1 is held in Negative. POINT No.2:- 9. As point No.1 is held in Negative, Point No.2 does not arise for consideration. POINT No.3:- 10. The following:- O R D E R The complaint is Dismissed. The parties shall bear their own costs. Dictated to the Stenographer, corrected and pronounced in Open Forum this the 9th DAY OF JUNE 2010. MEMBER MEMBER PRESIDENT
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