Sri Shyamal Gupta, Member

Aggrieved with the decision of the Ld. District Forum, Kolkata, Unit-II (Central) dated 22-07-2016, passed in CC/567/2015, whereof the complaint has been allowed, this Appeal is preferred u/s15 of the Consumer Protection Act, 1986.

In short, case of the Appellant is that, during the validity period of the subject insurance policy, the Respondent took part in mountain biking and during such mountain biking, he sustained injury.  Subsequently, he submitted an insurance claim worth Rs. 4,73,452/- with the Appellants.   However, since the nature of injury was not reimbursable in terms of Clause 4(e)(iii) of the Policy, the instant claim was repudiated by them. 

Heard the Ld. Advocates of the parties and gone through the documents on record.

It is argued by the Ld. Advocate of the Appellants that the Respondent sustained injury in his right knee during adventure sports, more specifically, while he was engaged in the activity of mountain biking at Luceme, Switzerland.  As per Clause 4(e)(iii) of the Policy, participation or involvement in adventure sports, inter alia, mountain climbing, racing etc. was not admissible.  Pointing out the discharge summary of the treating hospital, Ld. Advocate argued that the same clearly shows that the Respondent sustained injury while mountain biking.  He also argued that both the certificates issued by Belle Vue Clinic and the Sportsmed were issued after the subject claim was repudiated which makes it absolutely clear that the same were issued at the specific request of the Respondent and since none of them were eye witness to the incident, they were not supposed to know what the Respondent was actually doing on the date, place and time when the incident of fall actually took place.  Moreover, as neither the concerned doctor of treating hospital nor the Sportsmed put forth any evidence, the same, according to the Ld. Advocate, has got no evidentiary value.  He continued further stating that mountain biking is a sport of riding bicycle-off-road, often over rough terrain, using specially designed mountain bikes.  It involves high level of inherent danger and falls within the category of ‘extreme sports’.  Thus, it is not only an adventure sport, but an extreme sport with very high risk factors.  Moreover, studies by experts on the subject show that not only ‘mountain biking’, but also, ‘mountain bicycling’ results in frequent and fatal injuries and is classified as ‘extreme sports’.  The claim of the Respondent being the direct result of involvement in mountain biking and/or mountain bicycling was not covered under the policy and therefore, the Appellants had no liability at all to settle the instant claim.

Clause 4(e) of the subject policy reads as under:

“We will not make any payment for any claim in respect of any Insured Person directly or indirectly, for, caused by, arising from or in any way attributable to any of the following unless expressly stated to the contrary in the policy.

(i) …..

(ii)…...

(iii Any Insured Person’s participation or involvement in naval, military, or air force operation, racing, diving, aviation, scuba diving, parachuting, hang-gliding, rock or mountain climbing.”

Discharge summary of Belle Vue Clinic dated 28-03-2014 shows that the chief complaint of the patient/Respondent was ‘Recurrent swelling (RT) knee H/O injury during mountain biking’. 

The Appellants have not placed on record any documentary proof to show that the Respondent suffered injury while racing.  In our considered view, it is one thing to ride a bike/bicycle and quite another to take part in racing; both cannot be equated under any circumstances.

While the treating doctors unanimously clarified that the patient did not sustain such injury during mountain sports, we do not deem it prudent to discard such medical opinion in absence of any credible contrary expert opinion in this regard.  May be that they were not eye witnesses to the incident; however, being the treating doctors, their opinion cannot be taken lightly.

Further, one can also go for such biking all alone instead of competing/racing with others.  Therefore, while the Appellants have not put forth any convincing evidence to show that the Respondent sustained injury while racing with others, we feel, by according benefit of doubt, the Ld. District Forum committed no infirmity.

The speaking order passed by the Ld. District Forum deserves no interference from our end as the instant Appeal is bereft of any merit.

The Appeal, accordingly, fails.

Hence,

O R D E R E D

The Appeal stands dismissed on contest.  The impugned order is hereby affirmed.  No order as to costs.