SMT. RAVI SUSHA: PRESIDENT

   Complainant filed this complaint U/s 35 of Consumer Protection Act 2019 seeking to get an order directing opposite party to pay a sum of Rs.4,00,000/- to the complainant with interest together with cost of the proceedings of the complaint.

   Brief facts of the case of the complainant are that he met with an accident on 29/06/2019 while he was driving his car from his home to Kannur International Airport and was grievously injured.  He had multiple contusions and abrasions over face and scalp, multiple contusions and abrasions over nose, upper and lower lips, multiple abrasions over left knee, tenderness over mandible, restricted movements of lower jaw and fracture of mandible. The complainant was taken to AKG Memorial Co-operative hospital, Kannur and admitted there on 29/06/2019 for treatment.  He was discharged from the hospital on the same day and referred to Tejasvini Hospital Mangalore and admitted there on 29/06/2019 and discharged on 02/07/2019.  He was directed to appear for review after six weeks.  The complainant became permanently disabled.  At present, the complainant is having more than 10% permanently disabled.  At present, the complainant is having more than 10% permanent disability considering the body as a whole.  The car (KL-13x/5108) was having valid insurance coverage with the OP at the time of accident and he was having driving license.  As the vehicle was validly insured with the OP vide policy No.576005311810003710, they are bound to pay compensation under the head of personal accident coverage to the complainant in proportion to the percentage of permanent disability he had.  The OP failed to disburse the amount entitled to the complainant.  He is also entitled for the expenses incurred of his treatment along with incidental expenses like transportation, expenses for future treatment etc.  The complainant issued a registered lawyer notice to the OP on 09/09/2020 claiming an amount of Rs.3,50,000/- from them.  No reply was sent by them to the said notice.  Hence this complaint.

    After receiving notice OP filed version stating that the OP admits the insurance of the complainant under personal accident cover in the motor insurance policy of the car KL13/X/5108.  But this OP denies their liability to pay any amount as compensation to the applicant as per the terms and conditions of the insurance policy. This OP is not liable to pay the insurance amount to the complainant, since the complainant committed fundamental breach of the insurance policy.  He failed to intimate regarding the accident to this OP along with the FIR from the police station, immediately after the accident and failed to furnish the vehicular documents and his driving license before this OP, which  he is specifically bound to do as per the insurance policy and its condition.    The insured is entitled to claim under the personal accident cover of the said insurance policy, only as per the scale under section III of the insurance policy, subject to other terms, exemption conditions and limitation of the policy.  As per the said section III, the company undertakes to pay 100% of the sum insured as compensation to the insured, only if the insured owner driver, dies due to the injury, loss of two limbs or sight of two eyes or loss of one limb and sight of one eye, or for permanent total disablement from injuries sustained in the accident.  The insured is entitled for 50% of the sum insured only if he sustains loss of  one limb or sight of one eye.  Hence the applicant who is not having any of the injuries or disability as shown in the scale, I, II, II and VI in section III of the insurance policy is not entitled to clam for the compensation under the personal accident insurance policy.  The above claim is therefore liable to be dismissed.  In fact the complainant is entitled for compensation under the policy, only if he sustain 100% disability or other injuries mentioned in the schedule and scale shown in the section III of the insurance policy due to the injuries sustained in the accident, provided he has not committed fundamental breach of insurance policy conditions as stated earlier.  There is no deficiency of service or unfair trade practice on the part of the OP.  Hence prayed for the dismissal of the complaint.

    At the evidence time, complainant filed his proof affidavit and documents.  Examined as PW1.  Marked Ext.A1 to A13.  On the side of OP Senior Divisional Manager filed his proof affidavit and examined as Dw1.  The insurance policy with condition is marked as Ext.B1.  After that the learned counsel of complainant filed argument note.

     The undisputed facts in this case are that the complainant has taken  personal accident cover in the motor insurance policy of the  car KL-13x/5108.  It is also a fact that the complainant was  driving the vehicle at the time of accident and he is having valid   driving license.

    Complainant’s case is that on 29/6/2019, due to accident to the insured car while he was driving, he had multiple contusions and abrasions over face and scalp, multiple contusions and abrasions over nose, upper and lower lips, multiple abrasions over left knee, tenderness over mandible, restricted movements of lower jaw and fracture of mandible.  It is submitted that due to the fracture, he became  permanently disabled and now he is having more than 10% permanent disability considering the body as a whole.   According to complainant, the percentage of total disability assessed by the doctors is 15%, so he is entitled to the proportional amount of sum assured.

    The complainant has filed the disability certificate issued by medical Board constituted at Tejasvini Hospital ,Mangalore (Ext.A10).  We have also perused the said certificate.  It shows that the total disability was caused to the complainant up to an extent of 15%.  The certificate also indicates that Fracture symphysis menti(Mandible), dislocation of  right lower central  lateral ,left lower  central and leteral incisor teeth(4 anterior teeth).  This disability can be assed to be 15% of the face.

     Next on perusal of the policy of Insurance and the conditions stipulated there in, which indicated that if on account of motor accident one limb is loss means (cut off) or lose sight of one eye, the Insurance company will pay a sum of 50% of the insured amount as compensation to the insured.  Ext.A10 shows the medical board certifies that percentage of disability can be assessed to be 15% of the face , which the patient will be having difficulty in eating and has got aesthetic issues and this  functional and structural disability are due to the avulsion of four lower anterior teeth during road accident and are permanent in nature.

     On the other hand OP submitted  Ext.B1 policy. As per Ext.B1 policy sum insured is Rs.15,00,000/-. Further section III-personal accident cover for owner-Driver (i) death scale of  compensation -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%, permanent total disablement  from injuries other than named above -100%.   A bare perusal of the policy shows that the scale of compensation specifically stated that permanent, total disablement from injuries other than , death, loss of both limb or one limb, loss of eye sight.

      OP contended that as per the above said scale of the policy, the complainant(insured) is not having any of the injuries or disability, is not entitled to claim for the compensation under the personal accident insurance policy.

      Here the complainant has not sustained permanent total disablement from  injuries.  Hence complainant is not entitled to get policy benefit.

     From the facts and circumstances of this case, complainant failed to prove the case.  Hence it is dismissed.  No order as to cost.

Exts:

A1- Copy of RC

A2- Copy of insurance policy

A3- Driving license

A4- lawyer notice

A5-postel receipt

A6-acknowledgment card

A7- wound certificate

A8-Discharge summary

A9(series) –Medical Bills

A10- Disability certificate

A11-Copy of FIR

A12- copy of Final Report

A13-print out of PA policy details(web copy)

B1- policy with conditions

PW1- Sumesh-  complainant

DW1- Ajan.K.G- OP

Sd/                                                                            Sd/                                                                     Sd/

PRESIDENT                                               MEMBER                                                        MEMBER

Ravi Susha                      Molykutty Mathew.                            Sajeesh K.P

eva         

                                                   /Forwarded by Order/

                                                       ASSISTANT  REGISTRAR