KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.271/09 JUDGMENT DATED 25/6/2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER 1. M.K.Sadanandan, Puthenparambil House, Gandhi Junction, Koodal P.O, -- APPELLANTS Pathanamthitta District. Reptd. by the 2nd complainant As power of attorney holder. 2. Premalatha Sadanandan, Puthenparambil House, Gandhi Junction, Koodal P.O, Pathanamthitta District. (By Adv.K.Venugopalan Nair) Vs. 1. New India Assurance Company reptd by Senior Divisional Manager, Divisional Office, II, 2nd Floor, -- RESPONDENTS K.N.Mathew Building, G.A.Koil Street, Thiruvananthapuram. 2. The Branch Manager, New India Assurance Company Pathanamthitta (By Adv.M.Nizamudeen) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER Appellants were the complainants and respondents were the opposite parties in CC.57/03 on the file of CDRF, Pathanamthitta. The complaint therein was filed alleging deficiency in service on the part of the opposite parties in repudiating the Insurance claim preferred by the first complainant M.K.Sadanandan with respect to the policy issued by the opposite party/New India Assurance Company Ltd. under the Pravasi Suraksha Insurance Scheme. The opposite parties entered appearance and filed written version denying the alleged deficiency in service. They contended that as per the terms of the policy of Insurance, the first complainant is not entitled to get the Insurance benefit as he had not lost total vision of his right eye as alleged. Thus, the opposite parties justified their action in repudiating the Insurance claim. 2. Before the Forum below, the complainants 1 and 2 were examined as PWs 1 and 2 and the Doctor who issued A7 medical certificate was examined as PW3. Exts. A1 to A7 were also marked on the side of the complainants. The second opposite party, the Branch Manager of the New India Assurance Company was examined as DW1 and Dr.S.Maheshkumar attached to Aravind Eye Hospital, Madurai was examined as DW2. Exts.B1 to B7 documents were also marked on the side of the opposite parties. Exts.X1 to X3 were marked through DW2. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 27th March 2009 dismissing the complaint in OP.57/03. Hence the present appeal. 3. We heard both sides. The learned counsel for the appellants/complainants submitted his arguments based on the grounds urged in the memorandum of the present appeal. He submitted that the first complainant lost his vision to the right eye and so he was entitled to get the benefits of the policy issued under Pravasi Suraksha Insurance Scheme. On the other hand, the learned counsel for the respondents/opposite parties supported the impugned order passed by the Forum below. He also relied on Ext.X2 treatment record produced from Aravind Eye Hospital and Ext.B7 certificate issued from Aravind hospital. He further relied on the testimony of DW2 to prove the genuineness and correctness of the medical certificate issued by the Doctor attached to Aravind Eye Hospital, Madurai. Thus, the respondents prayed for dismissal of the appeal. 4. There is no dispute that the first appellant/first complainant was having the policy coverage as per Ext.B1 policy issued under Pravasi Suraksha Insurance Scheme. The said Insurance was for the period from 5.9.97 to 4.9.2002. Ext.B6 is the terms and conditions of the said policy. The first appellant/first complainant relied on condition 1 (3) of the policy. It reads as follows:- “If the insured person shall sustain any bodily injury resulting solely and directly from accident caused by violent, outward and visible means, and if such injury shall within twelve calendar months of its occurrence be the sole and direct cause of : 1. the death of the insured person the Company shall pay the Capital Sum Insured stated in the Certificate of Insurance against such person 2. the total and irrecoverable loss of sight of both eyes or total and irrecoverable loss of use of any two limbs, or loss of sight of one eye and total and irrecoverable loss of use of one limb, the Company shall pay the Capital Sum Insured stated in the certificate of Insurance. 3. the total and irrecoverable loss of sight of one eye or total and irrecoverable loss of use of one limb, fifty percent of the Capital Sum Insured stated in the Certificate of Insurance.” 5. Admittedly, B1 policy was for a sum of Rs.5 lakhs and under condition 1 (3), the complainant/ insured is entitled to get Rs.2,50,000/- if total and irrecoverable loss of sight of one eye or total and irrecoverable loss of one limb occurred. The first appellant/first complainant claimed a sum of Rs.2,50,000/- under the said policy. The important question for consideration is:- As to whether the first complainant had total and irrecoverable loss of sight of one eye. The definite case of the first complainant is that he is entitled to get the insurance claim of Rs.2,50,000/- because of the total and irrecoverable loss of sight of his right eye. But, the complainant has not succeeded in establishing his case regarding total and irrecoverable loss of sight of his right eye. On the other hand, the documentary evidence available on record would make it abundantly clear that the complainant had no such total and irrecoverable loss of sight of one eye. 6. Ext.B7 is the certificate issued by the Chief Medical Officer, Dr.M.Sreenivasan, Aravind Eye Hospitals, Maurai. The aforesaid certificate was issued to the second opposite party (Branch Manager) New India Assurance Company Ltd; Pathanamthitta. The said certificate is dated 11th July 2002. The aforesaid certificate would make it clear that the first appellant/first complainant Mr.Sadanandan was treated at Aravind Hospital, Madurai and the patient does not have total loss or irrecoverable loss of vision of right eye or any eye. It is further specified that the patient has a small scar in the Retina which is not due to diabetes or hyper tension. It is further submitted that the visual loss is a drop of line of vision in the chart from the normal range. Ext.B7 certificate has been proved through DW2 Dr. S.Maheshkumar attached to the very same Aravind Eye Hospital, Madurai. DW2 was authorized by Dr.M.Sreenivasan, Director of Aravind Eye hospitals. DW2 has deposed that B7 certificate was issued by Dr.M.Sreenivasan, Chief Medical Officer, Aravind Eye Hospitals and that he is having acquaintance of Dr.M.Sreenivasan. DW2 further deposed about X2 out patient record maintained at Aravind Eye Hospital, Madurai and also about the treatment of the first appellant/first complainant at that hospital. He further deposed about X3 copy of the letter issued by the first complainant M.K.Sadanandan to Dr.M.Sreenivasan and also about the reply to the said letter issued by Dr.M.Sreenivasan. Ext.X3 letter and reply to that letter would make it clear that the first complainant Sadanandan.M.K. was treated at Aravind Eye Hospital, Madurai as outpatient and on examination it was found that the vision of his right eye was by 6/9 and that of left eye 6/6. It would also show that there was central scotoma in right eye and the same does not require any further treatment. Thus, the evidence on record would show that there was no total and irrecoverable loss of vision of right eye. There is no reason or ground to doubt the testimony of DW2 and Ext.B7, X1 and X3 documents. Ext.X1 is the letter issued by Dr.M.Sreenivasan, Director, Aravind Eye Hospital, Madurai to the President of the CDRF, Pathanamthitta. As per Ext.X1, DW2 Dr.S. Maheshkumar was authorized to attend the CDRF, Pathanamthiita for the purpose of giving evidence in the matter. Thus, the documentary evidence available on record would show that the case of the complainant regarding total loss of vision to his right eye cannot be believed or accepted. On the other hand, the first complainant had only some vision problem and it is not adversely affected the 1st complainant. 7. The testimony of PW3, the Doctor who issued A7 Medical Certificate would show that the first complainant had not lost his total vision. The testimony of PW3 on analysis would make it clear that she had no occasion to treat the first complainant and that the first complainant approached PW3 for the purpose of obtaining A7 certificate. PW3 was cross examined, based on X2 treatment records. PW3 admitted the fact that the aforesaid treatment records would show that there was no total loss of vision to the right eye of the first complainant. Ext.A2 Medical Certificate issued from Dr.Shankar has not been proved by examining the Doctor who issued the same. A2 Medical Certificate would not show the total loss of vision to the right eye of the first complainant. Thus, the medical evidence on record would justify the action of the respondents/opposite parties in repudiating the insurance claim. 8. There can be no doubt about the legal position that the burden is upon the claimant to substantiate his insurance claim. The complainant had to establish his case of total and irrecoverable loss of vision of one eye. But, the complainant has not succeeded in establishing the said case of total and irrecoverable loss of vision to his right eye. The mere fact that there was a small scar in the Retina of the right eye cannot be taken as a ground to hold that there was total and irrecoverable loss of vision of the right eye. The mere fact that the complainant had been treated at Aravind Eye Hospital or any other hospital for defective division to the right eye cannot be a ground to hold that there was total and irrecoverable loss of vision of the right eye. The Forum below has rightly rejected A1 Medical Certificate produced from the side of the complainant. There is sufficient and acceptable ground for not relying on A1 certificate. It is to be noted that A1 certificate has not been proved by the complainant. It is also to be noticed that relevant details are lacking in A1 Medical Certificate. The Forum below has rightly appreciated the documentary evidence available on record and also the oral evidence adduced from either side. The findings and conclusion arrived at by the Forum below can be up held. We do not find any reason or ground to interfere with the impugned order passed by the Forum below. Hence the same is confirmed. In the result, the appeal is dismissed. The impugned order dated 27th March 2009 passed by CDRF, Pathanamthitta in OP.57/03 is confirmed. The parties are directed to suffer their respective costs through out. M.V.VISWANATHAN -- JUDICIAL MEMBER S.CHANDRAMOHAN NAIR -- MEMBER | 
