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  23rd day of    December 2009

CC/144/2007

Prameela, Teacher,

Athira,Kadamboor,

P.O.Edakkad.

(Rep. by Adv.N.Gangadharan)             :                       Complainant

National Insurance company Ltd.,

P.B.No.40,

Opp.Saphire Tourist Home,

Bank Road, Kannur.

(Rep. by Adv.V.K.Rajeev)                               :                       Opposite party

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under section12 of consumer protection Act for an order directing the opposite party to pay a total sum of Rs.95, 000/- as compensation and cost.

            The brief facts of the case of the complainant are as follows: the vehicle of the complainant KL.13 M 9046 Honda Activa insured with opposite party. Complainant has also taken coverage for the personal damages for owner-cum-driver. The vehicle was met with an accident on 19.4.07 by which complainant sustained injuries. She was then admitted to Thalasery Mission Hospital and treated there till 21.4.07. The complainant remained in P.O.P. caste for 42 days. Due to injuries complainant underwent great pain and sufferings and also met expenses. After discharge complainant was under bed rest for another 2 months by which she also lost her salary. Opposite party denied the compensation despite repeated demands and finally sent lawyer notice on23.5.07. Even after the notice opposite party did not pay any compensation. This is deficiency in service on the part of opposite party. Due to the accident she has got permanent disability to the particular limb. Since opposite party’s attitude is arrogant she has no other way except approaching the Forum. Hence this complaint.

            Pursuant to the notice opposite party entered appearance and filed version contending as follows: Opposite party admits the insurance of the two wheeler package policy to the complainant but  deny, the liability to pay the compensation since the complainant had not intimated opposite party regarding the accident and had not submitted the claim form along with the documents relating to the accident including the police records which will show that the complainant herself was the owner-driver of the insured vehicle at the time of the alleged accident. As per the policy condition No.1 the complainant is bound to give in writing to the company upon the occurrence of any accident and she shall give all the information and assistance to the insurer. Since she has committed failure to comply this mandatory policy condition she is not entitled to claim for compensation as per policy.

            On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite party?

2. Whether the complainant is entitled for the remedy as prayed in the complaint?

3. Relief and cost.

            The evidence consists of the oral testimony of PW1, PW2, DW1, Ext.A1 to A15, Ext.B1 & B2.

Issues 1 to 3

            Admittedly the complainant is the insured with the opposite party, who had issued an insurance policy covering the risk of the personal accident to the owner driver to a limit of Rs.1,50,000/-. The first point to be considered is whether the complainant had sustained any injury in the alleged accident, while she was driving the above said vehicle. The case of the complainant is that she had sustained injuries in an accident on 19.4.07 and admitted to Thalasery Mission Hospital. Ext.A1 certificate of registration and Ext.A2 Insurance certificate proves that complainant Mrs.Premeela is the registered owner of the insured vehicle. Ex.tA3 true copy of the driving licence compared and verified with the original records that she is having valid driving licence during the period of alleged accident. Ext.A4 accident register-cum-wound certificate reveals that she was admitted in the Thalasery Mission Hospital on 19.4.07 and discharged on 21.4.07. Ext.A5 (1) is the discharge summary issued by the above said Hospital.  Ext.A1 to A4 reveals that complainant was the registered owner of the insured vehicle and possessing valid licence. There is no evidence to show that any one else sustained injury by this accident on the same day. The evidence adduced by way of chief affidavit also shows that she was admitted Hospital as is seen in Discharge summary. In the ordinary course there is nothing wrong to believe that she was taken hospital due to the accident and she was driving the vehicle at the time of accident. Since there was no other person admitted in Hospital due to that accident, it can be assumed that she had been alone driving the vehicle. Complainant’s case is that she had sustained very grievous injury with multiple fractures left humerus and plaster of Paris was affixed for 42 days.  What is the main case of the opposite party? Opposite party has no case that such an accident had not been taken place at all though there is mere denial. The opposite party’s case on relevant point is that the complainant had not intimated regarding the accident and had not submitted the claim form along with the documents. Ext.A4 lawyer notice specifically stated that she has sustained injury on 19.4.07 while using the said vehicle and thereby she was admitted to Thalassry Mission hospital. All these facts show that the complainant sustained injuries in the accident while she was driving the vehicle insured under opposite party.

            Now the question arose whether the disability if any caused to her makes her entitled to get compensation as per the cover in the insurance policy.    

The complainant was first taken to Hospital on 19.4.07 As per Ext.A4 she was discharged on 21.4.07. It shows she was hospitalized for a period of three days for the first injury. Condition on discharge was stable. Details of injuries clinical features noted no external injuries.  Complainant’s case is that she had sustained very grievous injury with multiple fractures left humorous and plaster of Paris was affected for 42 days. The doctor who treated the complainant adduced evidence as PW2.  He deposed that she was examined by him admitted in the above said Hospital on 19.4.07 and discharged her on 21.4.07. He further deposed thus “she was again admitted due to another fall on 11.7.07 and she had dislocation of right elbow due to second fall. This was treated by plaster on 26.3.08. I examined the patient again and issued disability certificate Ext.A6”. However, he has made it clear that the second injury had not been considered in issuing the disability certificate Ext.A6 issued by him. He has further deposed that as per Ext.A6 the patient is not having total disability. He has also explained that Disability may be permanent or temporary and it may also be total or partial. According to the explanation given by the witness PW2 doctor Ext.A6 disability certificate shows that the complainant is having 15% partial permanent disability and not 100% disability.

            As per the insurance policy and the scale of compensation provided under section 111 of the personal accident cover as per the insurance policy she is not entitled for compensation for the disability of 15% sustained to her. Opposite party’s contention is that the compensation shall be payable under only one of the items (1) to (IV) of the scale of bodily injury given under section 111 in respect of the owner-driver. The counsel for the opposite party vehemently argued that as per the insurance policy and its terms and conditions complainant is not entitled for the compensation since she has sustained only 15% permanent disability and not 100% permanent total disability.

            The learned counsel for the complaint lodged a vehement argument raising an important point whether the disability is required to be 100% for claiming disability benefit as contended by the opposite party. According to him 100% disability is not a condition precedent in policy attracting accident benefit clause. He has also sited a case Prabir Kumar Nath Vs. Life Insurance Corporation of India and others (2004 ACJ 1582.

            It is pertinent to note that the facts of the above case have nothing to do with the present case in hand. The case of the Prabir Kuamr Nath was a most unfortunate case where the complainant who had been a bus driver became permanently disabled by reason of amputation of right leg above knee consequent to an accident. It has to be taken in to account that the complaint therein lost a vital limb totally making him permanently disabled. The driver of the bus never in future will be able to drive the bus for his livelihood. He has lost his job as a driver forever, on account of the amputation of his leg. His incapability to do the job of driving as a driver made him permanently incapable of earning any livelihood out of driving a vehicle. The permanent liability suffered by the driver is thus total and permanent as far as his livelihood is concerned. Considering  this aspect it was held that the words “ a total liability” used in the policy is to be liberally interpreted to mean total and permanent disability of a vital organ or limb which seriously impairs important  human functions such as movement, vision etc. The facts of the Prabir Kuamr Nath case are in no way similar to the facts of the case in hand. Hence, the decision no way applicable to this case.

The insurance company undertakes to pay compensation as per the scale provided under personal accident cover for owner-driver. The scale consist of 4 items as given

 below.

As per terms the compensation shall be payable under only one of the items (1) to (iv) above in respect of the owner-driver arising out of any accident. Even if Ext.A8 disability certificate issued by a Dr.George the permanent disability is only 15%. The case of the complaint does not fall in any one of the items in the above scale. Hence we are of opinion that there is no deficiency in service on the part of Opposite Party and complainant is not entitled for the compensation as per the terms and conditions of insurance policy. The issues 1 to 3 are found against the complainant.

In the result, the complaint is dismissed. No order as to cost.

                Sd/-                              Sd/-                                        Sd/-

            President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1.Copy  of the registration certificate of vehicle KL.13.M.9046

A2.Copy of the policy schedule issued by OP

A3.Copy of the driving licence of complainant

A4.Accident register-cum-wound certificate  issued from Thalasery Mission Hospital

A5.Copy of Discharge summary issued from  Thalassery Mission Hospital.

A6.Copy of certificate dt.26.3.08issued by Dr. M.D.George

A7.Certifiate issued by Child Development project Director

A8.Copy of the SSLC book front page of  complainant.

A9.Prescription issued from Thalassery Mission Hospital

A10. Receipts

A11.Tourist taxi receipts

A12.Copy of the From No. 16 A

A13.Reference card issued from RV clinic & Hospital

A14.Copy of the lawyer notice sent to OP

A15.Postal acknowledgement card

Exhibits for the opposite party

B1.copy of certificate schedule

B2.Copy of the reply notice dt.14.6.07

Witness examined for the complainant

PW1.Complainant

PW2.M.D.George

Witness examined for the opposite party

DW1.T.A.Sankarankutty.

                                                            /forwarded by order/

                                                            Senior Superintendent

Consumer Disputes Redressal Forum, Kannur