1.                     This is an appeal filed by the appellant (complainant) against order of District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 7.01.2009 passed in complaint case No.769 of 2008 : Smt. Radha Jain Vs. National Insurance Company Limited.

2.             Briefly stated the case of the complainant is that he got an ‘Individual Personal Accident’ Policy from the OP, which was joint with her husband Sudhir Kumar Jain and the same was valid from 13.9.2005 to 12.9.2005. It was averred that the capital sum insured in the case of Complainant was Rs.1,99,000/- and in case of complainant and her husband, it was Rs.2 Lacs (C-1). The case of the complainant is that unfortunately, on 28.2.2006, she slipped in her drawing room and her hip joint was broken, consequent to which, she was taken to Shivalik Hospital & Trauma Centre, Sector 69, SAS Nagar, Mohali. The complainant, it was averred, was operated upon for her hip replacement and she was discharged on 4.3.2006. The complainant lodged claim with the OP, who asked the complainant vide letter dated 16.5.2006 that to submit the main hospital bill with break up, which was duly supplied.  The complainant was also issued a disability certificate dated 29.11.2006 by the Medical Board, whereby she was declared disabled to the tune of Rs.40% (C-7). The grievance of the complainant was that after a lapse of six months, she was shocked to see that the OP had only paid a sum of Rs.39,800/- vide Cheque dated 24.5.2007 towards her claim against its liability of Rs.1,60,000/- as the Complainant had suffered permanent disability to the tune of 40%. Alleging the withholding the remaining amount of Rs.1,20,200/- by the OP as deficiency in service on its part, the complainant had filed the present complaint.

3.             The OP in its reply had denied that complainant and her husband were insured for a sum of Rs.2.00 lacs. It was pleaded that actually Table-III benefit for Rs.2.00 lacs was given to Sh. Sudhir Kumar Jain and due to a typographical error, the name of Complainant was inadvertently typed against the entry made in the policy with regard to Table-III benefit. It was asserted that the complainant was not declared disabled to the tune of 40% whereas the disability was assessed at 40% with regard to only right lower limb and not with regard to whole of the body. As per the OP, the said disability in respect of both lower limbs was considered as 20% and the amount paid to the complainant was to the extent of her entitlement under the policy in question, which she accepted as full and final settlement of the claim. Pleading no deficiency in service on their part, OPs prayed for dismissal of the complaint.

4.             The learned District Forum, in its analysis of the complaint, recorded found merit in the contention of the OP that if the name of the complainant was mentioned under table III of the policy then it was not necessary for mentioning her name under table II thereof. As per the learned District Forum, there was sufficient merit in the contention of the OP that the name of the complainant was inadvertently mentioned along with her husband for benefits under table III of the policy. In the view of learned District Forum, as per the policy documents, the complainant was entitled to benefits under table II of the policy under, which she was entitled to 0.90% of the normal risks for permanent partial disablement. The learned District Forum further recorded that since the disability of the complainant was with respect to only one leg, the benefit to which the complainant was entitled would come out to 20% of the amount of Rs.1,99,000/- for which she had been insured. As per the learned District Forum OPs had rightly paid an amount of Rs.39,800/- to the complainant and she was not entitled to any other amount.  In view of its above observations, the learned District Forum dismissed the complaint by leaving the parties to bear their own costs of litigation.

5.                     Aggrieved by the said order of learned District Forum, the OP Insurance Company has filed the present appeal. The appeal having been taken on board, notice was sent to the respondent/OP and record of complaint case was summoned from the District Forum concerned. Sh. Sandeep Bhardwaj, Advocate appeared on behalf of the appellant (complainant) whereas Sh. Navin Kapoor, Advocate, represented the respondent/OP.

6.                     Sh. Sandeep Bhardwaj, Advocate, learned counsel for the appellant/complainant submitted that as per Clause e(xii) of the policy, the complainant was entitled to be indemnified for the disability suffered by her as per the doctor’s report. The learned counsel emphatically submitted that as per the report of Medical Board, the disability was to the tune of 40% and therefore, she was entitled to receive 40% of the insured amount whereas the OP Insurance Company had arbitrarily reduced the amount by half and had paid her only a sum of Rs.39,800/-. It was, therefore, prayed by the counsel for the complainant that the OP Insurance Company be directed to pay the complainant for 40% disability suffered by her and not for 20% for which the claim had been made.

7.                     At the time of arguments, counsel for the OP was not present. However, subsequently, Sh. Navin Kapur, Advocate appeared on behalf of the respondent/OP and he reiterated the version of OP in the written reply that 40% disability was not with regard to the whole body and it was only with regard to the right lower limb and therefore, since the second leg was unaffected, the disability to the whole body was to be considered as 20% and accordingly, the claim had been paid rightly to the complainant.

8.                     We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties.

9.                     The sole point involved in the present case is with regard to the extent of entitlement of the complainant with regard to the disability benefit. Admittedly, the complainant suffered an injury to her hip, which resulted in hip replacement operation. Furthermore, it is evident from the report of the Medical Board that the disability suffered is to the tune of 40%. Since, the injury was to the hip, therefore, in our considered view, this disability cannot be halved as has been done by the OP. OP has not placed any authority based on which the disability could be reduced by half as has been done by it in the instant case. In our considered view, the insured is fully entitled to the claim disability benefit up to 40% of the insured amount for her disability suffered in the instant case and thus, to this extent, the impugned order cannot be legally sustained.

10.           In this view of the matter, the appeal is allowed and the impugned order is set aside. OP Insurance Company is now directed to pay the complainant her entitlement as per the sum insured in the policy taking her disability to be 40% and the amount already paid to the complainant be adjusted by the Insurance Company while paying the balance amount. The balance amount shall be paid to the complainant along with interest @12% per annum from the date of earlier payment of Rs.39,800/- till actual payment. OP is further directed to pay the complainant another sum of Rs.2,100/- as costs of litigation. OP is also directed to comply with the above directions within a period of one month from the date of receipt of certified copy of this order.

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

Pronounced.

18^th February 2010.