D.O.F. 21.12.2008 D.O.O.18.4.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri. K. Gopalan : President Smt. K.P. Preethakumari : Member Smt. M.D. Jessy : Member Dated this the 18th day of April, 2011 C.C.No.23/2008 P. Biju, S/o. Valsan, Toddy Taper, Pindath House, : Complainant Kayaralam P.O., Kannur District (Rep. by Adv. K. Reghunathan) National Insurance Co. Ltd., Kannur : Opposite Party (Rep. by Adv. V.K. Rajeev ) O R D E R Smt. K.P. Preethakumari, Member. This is a complaint filed under Section 12 of the Consumer Protection Act for an order directing the opposite parties to pay ` 1,15,000 as policy benefits along with ` 50,000 as compensation and cost. The complainant’s case is that he is a toddy tapper by profession under the license Pradeepan, Keezalam Vayal Toddy shop, Kannur and the licecee availed two insurance policies from opposite party individual accident and Hospitalisation and Democellary hospitalization benefit policy which were covered individual medi-claim benefit to the complainant and other 16 persons. Sum assured to the individual is ` 1,00,000 and ` 15,000 respectively. As per the terms of the policy the opposite party is liable to pay all medical expenses incurred to the individuals covered under the policy in case of any injury sustained to them. The opposite party accepted a sum of ` 4,761 as premium for the policy No. 571100/42/05/8/00000248 and another sum of ` 4,500 for the policy No.571100/45/05/8500000/54. The complainant met with an incident on 22.12.08 at 8.10 pm, while he was traveling in a motor bike having no Kl 14 E-5514 as a Pillion rider. As a result the complainant sustained grievous injury and treated in AKG Hospital, Kannur and Justice K.S. Hegde Charitable Hospital, Mangalore. At the time of discharge the doctors advised to continue the treatment and till now the petitioner is continuing treatment. The complainant preferred two claims before opposite party for the benefit of above said two policies. But the opposite party has not honoured the claim and repudiated the claim without any valid and legal reason. The opposite party is legally bound to honour the claim and to pay the amount covered under the policy. So there is deficiency of service on the part of opposite parties. Hence this complaint. In response to the notice issued by the Forum, the opposite party appeared and filed the version admitting that they had issued personal accident insurance (individual) policy and medi claim policy in the name of P. Pradeepan covering the risk of a group of persons in which the complainant is one among them. But denies their liability to pay the insurance amount as per the policy, its conditions and exceptions. On receipt of the claim form the opposite party had conducted an investigation to know the cause and nature of injuries sustained. The accident register cum wound certificate issued from AKG Hospital, Kannur would reveal that the complainant sustained injuries due to fall from his own motor bike and at that time the complainant was under the influence of the alcohol and injuries sustained to the complainant was not due to the negligence of Satheesan who is alleged to have been riding the motor bike at the time of accident. So the complainant sustained injury due to fall from his own motorcycle which he was riding the same under the influence of intoxicating liquor. The averment in the complaint that he had submitted the claim form to the opposite party under the mediclaim policy is not true. The complainant had submitted the claim form of the personal accident insurance policy along with the medical records, bills worth 5,604 and the medical certificate. But even if the claimform under the mediclaim policy is submitted, the complainant is not entitled for the medi-claim as per the exclusion clause 4-8 of the policy. Since at the time of accident, the insured was under the influence of alcohol. The complainant is not entitled for the insurance amount whatsoever as per the exemption clause No.5(b) of the personal accident insurance policy, according to which the company shall not be liable under the policies if the complainant had sustained injury due to which he has sustained temporary total disability and if at the time of the happening of the event the complainant was under the influence of alcohol. The complainant is also not entitled for compensation since he had not intimated the happening of the event immediately after the occurence of the same or within the stipulated time. As per policy the accident should be intimated to the company through a written notice with full particulars within one month from the date of accident and the insured is liable to furnish satisfactory proof and all matters upon which the claim is based. The complainant intimated the accident and submitted the claim only on 22.05.2006 though the accident was on 22.12.2005. So the complainant failed to follow the policy condition and thereby the opposite party has no liability to pay the amount. As per the policy conditions No.(F) of the policy the insurer will be liable if such injury shall be the sole and direct cause of temporary total disablement then so long as the insured person shall be totally disabled from engaging in any employment or occupation of any description, a sum at the rate of one percent of the capital sum insured, but in any case not exceeding 5000 per week in al. The medical certificate submitted by the complainant along with the claim form for the claim under personal insurance policy will not show the period of temporary total disability. According to the doctor who issued medical certificate, the complainant was having permanent total disability missing of teeth and effective chewing. The complainant was not having any specific percentage of permanent or partial disability and as per exemption clause No.5 of policy, the injury was caused while the complainant was under the influence of intoxicating liquor the opposite party had processed the claim and repudiate the claim and intimated the same on 18.09.2006. Since the complainant had not submitted any claim form under the mediclaim policy the opposite party could not process the claim and send a specific repudiation of claim under the policy. Moreover the claim under the mediclaim is not maintainable as per the clause 4-8 of mediclaim policy conditions since at the time of accident the complainant was under the influence of alcohol. Above all, if Forum finds that the complainant is entitled for re-imbursement under the mediclaim policy the liability of the opposite party will be ` 5604, since the complainant had incurred only ` 5604, towards treatment and the complainant is never entitled for the total sum of ` 15,000 which is the total limit of sum insured. The complainant is also not entitled to claim of ` 1,00,000 under the personal accidents insurance policy, since the complainant was not having any disability as specified under Clause(a) to Clause (e) of the policy condition. The disability certificate also is not specific. If the Forum is intended to accept 10% as the permanent partial disability for the complainant he will be entitled only for a sum of ` 10,000 which is 10% of one lakh. The complainant had willfully and intentionally suppressed the actual fact that he was riding his own motor cycle and fell down from the same while he was under the influence of alcohol. The FIR before Taliparamba police was given on 14.02.2008 eventhough it was occurred on 22.12.2005. So the complaint is liable to be dismissed. Upon the above pleadings the following issues have been raised for consideration. 1. Whether there is any deficiency of service on the part of opposite party? 2. Whether the complainant is entitled to any relief? 3. Relief and cost. The evidence in the above case consists of the oral testimony of PW1, DW1 and DW2 and Exts. A1 to A5 and B1 to B8. The complainants case is that he is a beneficiary of the two Policies namely Individual Personal Accident and Hospitalisation and domicellary hospitalization policy which was taken by the licence under whom he has been working as a toddy tapper and had sustained injuries due to an accident on 22.12.2005 and hence he is entitled to get policy benefits. In order to prove his case he was examined as PW1 and documents such as individual accident (Insurance policy with conditions, Hospitalisation and Domiciliary hospitalization benefit policy, personal accident insurance claimform Personal accident insurance medical certificate form, final report, order in CC 499/06 of Judicial First Class Magistrate Court, Taliparamba etc. Opposite party also examined DW1 and DW2 and documents such as attested copy of mediclaim Insurance Policy with condition. Personal accident insurance policy with condition, claim form submitted under personal accident insurance policy, photocopy of case paper, personal accident insurance Medical certificate form, photocopies of discharge summary from Justice K.S. Hegde Hospital, photocopy of FIR in Crime No.104/06 and repudiation letter. The documents produced together with the admission of opposite party shows that the license under whom the complainant has been working as toddy tapper had taken two policies ie Personal Accident Insurance (Individual) Policy and Hospitalisation and Democellary hospitalization policy having insurance coverage, the complainant during relevant period. But the opposite party put forwarded the contention that the complaint is not entitled for any claim amount since the complainant has not submitted claim form within prescribed period and at the time of accident the complainant was driving the vehicle under control of alcohol, and the complainant has no permanent disability. The opposite party contended that the complainant has not submitted claim for hospitalization and demicellary hospitalization benefit policy and the claim for personal accident insurance (individual) policy was submitted only on 20.05.2006, eventhough the accident was occurred on 22.12.2005. According to it there was a condition stipulating one month time from the date of accident for submitting claim form. Both complainant and opposite party have produced Ext.A1 and Ext.B2 policy with conditions of personal accident insurance (individual) policy. As per the A1 and B2 conditions No.1 states that “Upon the happening of any event which may give rise to a claim under this policy. Written notice with full particulars must be given to the company immediately. In case of death written notice also for the death must unless reasonable cause is shown, be so given before internment, cremation and in any case within one calendar month after the death and in the event of loss of sight or amputation of limbs written notice thereof must also be given within one calendar month after such loss of sight or amputation”. In this case the complainant is claiming under clause (e)(xii) of policy condition ie any other permanent partial disablement. So no where in the above stated condition the permanent partial disablement is mentioned. So the condition states that the written notice with full particulars must be given to the company immediately. The word “immediately” is not defined anywhere in the conditions of policy. Moreover the reason stated for repudiation as per B8 is claim under the influence of intoxicating liquor or drugs is exempted and period of temporary total disability is not certified by the doctor. So the delay in submitting claim form is not shown as a ground for repudiation. If it is so it should find a place in the repudiation letter. Above all it is seen that the policy was taken by the licence and the complainant is a person not having much awareness he was not aware of the fact. From the above discussion and for the interest of natural justice, we are of the opinion that the claim application filed by the complainant under personal accident insurance (individual) policy can be treated as one which is filed within time. Regarding the other policy the hospitalization and domiciliary hospitalization benefit policy the opposite party contended that the complainant has not submitted claim application for its benefit. The complainant has not produced any document to show that he has filed claim application. The conditions produced by opposite party along with policy of hospitalization and democellary hospitalization benefit policy ie part of the B1 document is the mediclaim policy and not that of hospitalization and democellary hospitalization policy. Opposite party deposed before the Forum that “ cv t]mfnkn {]Im-c-hpT t]mfn-kn-bn lc-Pn-¡m-c³ covered BWv.. B1{]Im-cT capital sum per individual \v assured `100000 BWv.. B2 {]Im-cT Hmtcm-cp-¯À¡pT `15000 cq] mediclaim coverage Dv. km[m-cW KXn-bn Cu cv claim{]Im-c-hpT ]cm-Xn-¡m-c³ compensation\v AÀl-\m-Wv. Cu Claim repudiate sNbvXXv B8{]Im-c-amWv.” So from the above deposition it is clear that complainant is entitled for the claim under both policy. So for the interest of natural justice, the claim of the complainant with respect to the hospitalization and democellary hospitalization benefit policy can also be decided along with the other personal accident policy. Yet another contention of the opposite party is that the claim of the complainant is repudiated due to the reason that he is under the influence of ‘intoxicating liquor”. The opposite party further contended that they have conducted an investigation and along with Ext.B4 they came to such conclusion. Ext.B4 is a photocopy of the case paper of the complainant dated 22.12.2005 which was issued by DW2 Dental and Maxillo Facial Surgeon. In B4 he has written as “Smell of alcohol”. He had identified the B4 document and admits that he had examined the complaint and deposed that he has not conducted the prescribed test for detecting the influence of alcohol. Moreover drunkenness certificate also was not produced. He further deposed that “as for as medical opinion with regard to the influence of alcohol, there must be medical certificate approved by the medical authorities and without incorporation of that certificate the opinion is incomplete”. The DW2 doctor again deposed that the opinion shown in B4 as “smell of alcohol” is only an opinion without medical backing. So from the above discussion it is seen that opposite party has not succeeded in establishing the case that the complainant is under the influence of alcohol at the time of accident. Moreover A4 and A5 proves that one Mr. P. Satheesan is the driver of the Bike at the time of incident and B4 substantiate the case of the complainant the accident was occurred on 22.12.2005. Another reason stated for repudiating the claim is that period of temporary total disability is not certified by the doctor. But Ext.B5 is a medical certificate accompanied with the claim issued by Dr. B. Rajendra Prasad, Senior Professor and Head of Department of Oral and Maxillo Facial Surgery, A.B. Shetty Memorial Institute of Dental Science, Managalore. According to him the complainant have a permanent total disability of missing teeth and effecting chewing and attend 100% of his esthetics and chewing function and has 10% permanent partial disability. So it is seen that the above contention is put forwarded only for the purpose of the case. As per the clause (e) of personal accident insurance policy it is stated that “injury shall within 12 calendar months of its occurrence to the sole and direct cause of the total and irrecoverable loss of use or of the actual loss by separation of the following and then written as the percentage of the capital sum insured as indicated below shall be payable” and as per (xii) of (e) any other permanent partial disablement the amount payable is percentage as assessed by the doctor. So in this case the doctor assessed 10% disability and hence the complainant is entitled to get 10% of the total sum assured ie 1,00,000x10/100 = ` 10,000. So as per the personal accident insurance policy the complainant is entitled to get ` 10,000 as his claim amount. The opposite party in their version admits that the complainant incurred only ` 5604 towards the treatment. So as per the hospitalization and democellary hospitalization benefit policy, the complainant is entitled to receive ` 5604 towards the treatment expenses. Since it is found that the claim is repudiated we are of the opinion that there is deficiency of service on the part of opposite party. So the opposite party is liable to pay `1,000 as compensation and 1000 as cost of the proceedings to the complainant. So the complainant is entitled to get 10,000 as claim amount of individual personal accident policy and ` 5604 as claim amount of hospitalization and democellary hospitalization benefit policy along with ` 1000 as compensation and ` 1000 as cost of the proceedings and order passed accordingly. In the result the complaint is allowed directing opposite party to pay ` 10,000 (Rupees Ten Thousand only) as claim amount of individual accident policy and ` 5604 as claim amount of hospitalization and domecellary hospitalization benefit policy along with ` 1000 (Rupees One Thousand only) as compensation and ` 1000 (Rupees One Thousand only) as cost of the proceedings to the complainant within one month from the date of receipt of this order, otherwise the complainant can execute the order as per the provisions of Consumer Protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1 & A2. Policies issued by OP A3.Copy of the claim form submitted before the OP A4.Copy of the final report FIR.No104/06 of JFCM Taliparamba A5.Copy of the judgment in 499/06 of CJM,Taiparamba Exhibits for the opposite parties B1.Policy B2.Policy conditions B3.Claim form submitted by A.Pradeepan B4.Copy of the case paper issued from AKG Memorial co.op.Hospital B5.Personal Accident insurance medical certificate form issued by Dr.B.Rajendra Prasad, Mangalore B6.Copy of the discharge summary issued by from K.S.Hegde Charitable Hospital. B7.Copy of the FIR No104 of Taliparma Police station B8.Copy of the repudiation letter Witness examined for the complainant PW1. Complainant Witness examined for opposite party DW1. T.A.Sankarankutty DW2.Dr.Ajoy Vijayan /forwarded by order/ SENIOR SUPERINTENDENT Consumer Disputes Redressal Forum, Kannur
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
