IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA Saturday the 27th day of February, 2016 Filed on 19.02.2014 Present - Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in C.C.No.47/2014 between Complainant:- Opposite Party:- Sri. Vinoy Joseph National Insurance Company Ltd. Pandyalackal, Vazhicherry Ward Represented by its Branch Manager Alappuzha Head P.O. Soumya Complex, Vellakkinar Alappuzha Junction, Alappuzha Now residing at Pandyalackal (By Adv. T.S. Suresh) Sikh Junction, Arattuvazhy Alappuzha (By Adv. Charles Isaac) O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:- The complainant is the registered owner of the vehicle (Yamaha Fazer Motor Cycle) bearing registration No. KL-04-AC-9651. The said vehicle was duly insured (full cover) with the opposite party insurance company vide policy No.571401/31/12/6200004723 for the period from 11.09.2012 to 10.09.2013. While so, on 18.8.2013, the complainant met with a road accident near Kumbalangi Toll Plaza, Kochi and sustained grievous injuries on his neck, right leg and other body parts and was admitted as an inpatient at ‘Lakeshore Hospital, Maradu, Kochi’ for the period from 18.8.2013 to 5.9.2013. During the said period the complainant underwent surgery on his right foot and other complicated treatments, he had to spend above Rs.2 lakhs for his treatment on account of the said accident. The said accident occurred when the vehicle was duly insured with the opposite party. As per the liability clause of the said policy in case of compulsory personal accident to owner cum driver, the opposite party shall indemnify him with Rs.1 lakh. The complainant being the owner cum driver of the said vehicle at the time of the accident is to be indemnified by the opposite party for the said amount. Subsequent the accident, complainant approached the opposite party for the personal accident policy amount, but the opposite party repudiated the claim of the complainant. Feeling aggrieved, the complainant approached this Forum for the policy amount and other reliefs. 2. The version of the opposite party is as follows:- The injuries alleged to have been sustained by the complainant will not come under the coverage of the policy held by the complainant. According to the opposite party, the complainant has never sustained any permanent total disablement. The complainant is not entitled to get any of the relief sought for from this Forum. The complaint only liable to be dismissed with cost to the opposite party. 3. Complainant was examined as PW1. Documents produced were marked as Exts.A1 to A3. One witness was examined as PW2. Document issued by PW2 is marked as Ext.A4. Opposite party examined as RW1. Document produced marked as Ext.B1. 4. The points came up for considerations are:- - Whether there is any deficiency in service on the part of the opposite party?
- Whether the complainant is entitled to get reliefs?
5. Complainant is the injured owner cum rider of the vehicle involved in the accident. The vehicle was having a valid policy for the personal accident to the insured vehicle. Due to the accident the complainant sustained serious injuries. According to the opposite party as per the conditions of the policy, the injury sustained by the complainant would not entitle him to the benefit of policy. According to the complainant, as per the terms and conditions of the package policy issued by the opposite party, he is entitled to get Rs.1 lakh for his serious injuries sustained in the accident that caused him permanent disability. In order to substantiate his allegations complainant produced Ext.A4 the disability certificate issued by the Dr. Joseph Dixon in favour of the complainant. As per Ext.A4, complainant was having 17% permanent disability due to the alleged accident. According to the opposite party as per Section III of the policy condition, opposite party is liable to pay on four grounds as stated below:- 1) Death - 100% 2) Loss of two limbs or sight of two eyes or one limb and sight of one eye - 100% 3) Lost of one limb or sight of one eye - 50% 4) Permanent total disablement from injuries other than named above - 100% Since the complainant does not sustained any of the injury stated in the injury item No. 1 to 4, he is not entitled to get any benefit as per the personal accident coverage as stated in the policy. In Gulam Vs. Oriental Insurance Company Ltd. rendered in 2014 (4) CPR 553 (National Commission) confirmed the findings of the State Commission and observed that the complainant therein failed to prove that he suffered any injury resulting in disability which is covered by the conditions of the policy. The injuries suffered by the complainant are not fit for payment under policy. The injuries suffered by the complainant not being under the conditions of the policy, the opposite party has not committed any dereliction of services by not making the payment. The same findings are applicable in this case also. “In the disability certificate produced by the complainant, the described injury does not come to be in the ambit of conditions of the insurance policy. From the perusal of conditions of insurance policy, this is clear that in case of death in accident 100% compensation and disability of eye sight in both the eyes or for one limb and one eye, there is provision of providing 100% compensation. Whereas for disability in one limb and one eye, there is provision of giving 50% compensation and for permanent disability, there is mention of giving 100% amount. Whereas, in the above case, the applicant has not submitted any such certificate from which it can be established that he has got any permanent disability of this type.” According to the certificate produced by the complainant, the complainant has suffered 17% permanent disability. According to the complainant he took the policy under the bonafide belief on the basis of the assurance given by the opposite party that the personal accident coverage to the owner cum driver of the insured vehicle is Rs.1 lakh. This Forum has jurisdiction to see only with regard to the defect and deficiency in service from the part of the opposite party. The contention taken by the opposite party is that as per the conditions in the policy, the liability is restricted or limited to the extent of disability given in the slab. But in a similar case there is a reported decision in ACJ 2014 page No.721 in Bajaj General Insurance Company Ltd. Vs. C. Ramesh wherein it is held that “under personal accident cover, insured company is liable for injuries sustained by the owner cum driver of the vehicle. There is no negative covenant in the policy that no compensation would be paid in respect of other bodily injuries, but the aggregate of the compensation shall not exceed Rs.1 lakh during anyone period of insurance.” Since this Forum has no jurisdiction to ascertain the damages on the basis of injuries, or disability sustained to the insured like that of Motor Accident Claims Tribunal, this Forum is constrained to dispose the above complaint without prejudice to the right of the complainant to approach the appropriate Forum to redress his grievance. In the result, complaint is dismissed. Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 27th day of February, 2016. Sd/- Smt.Elizabeth George (President) : Sd/- Sri. Antony Xavier (Member) : Sd/- Smt.Jasmine.D. (Member) : Appendix:- Evidence of the complainant:- PW1 - Vinoy Joseph (Witness) PW2 - Dr. Joseph Dixon (Witness) Ext.A1 - True copy of the certificate of insurance policy schedule Ext.A2 - True copy of the discharge summary Ext.A3 - True copy of the letter dated 31.10.2013 Ext.A4 - Disability certificate dated 24.8.2015 Evidence of the opposite party:- RW1 - Parameswaran.N. (Witness) Ext.B1 - Terms and conditions of the two wheeler package policy // True Copy // By Order Senior Superintendent To Complainant/Opposite parties/S.F. Typed by:- pr/- Compared by:- | 
