IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Monday the 16th day of January, 2023.
Filed on : 03.05.2021
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. C.K.Lekhamma, B.A.L,LLB (Member)
In
CC/No.105/2021
between
Complainant:- Opposite party:-
Sri.Xavier Aliyas The Oriental Insurance Company Ltd.,
S/o Aliyas, Kakkariyil House, Rep.by its Divisional Manager,
Thumpoly P.O., Divisional Officce,
Alappuzha – 688 008. CVM Complex, YMCA Road, Phone:9747339322. Alappuzha – 688 001.
(Rep.by Adv.Sri.Jose Y James) (Rep.by Adv.Sri.C.Muraleedharan)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
1. Material averments briefly stated are as follows:-
Complainant is the owner of scooter bearing registration No.KL 04 AK 8708 and it was insured with the opposite party M/s Oriental Insurance Company Ltd. Complainant is the insured owner cum rider of the scooter at the time of accident. The policy is in force for 1 year from 24.5.19 to 23.5 2020. The policy also covers owner cum rider for Rs.15 lakhs in case of accidental death for any permanent disability sustained to him while riding the said scooter. An additional premium of Rs.360/- was collected by the opposite party.
2. On 31.12.19 at about 11 PM when the complainant was returning from Thuravoor office riding his own scooter through Alappuzha – Ernakulam National Highway and reached north of Cherthala Railway station it hit against a tar barrel which was negligently placed at the middle of the public road without any danger light. Complainant fell down and sustained multiple injuries including fracture and loss of vision of right eye. He had undergone treatment at medical college hospital Alappuzha from 31.12.19 to 11.01.2020 and from 25.01.2020 to 05.02.2020. The right eye vision of the complainant was completely lost forever due to the injuries sustained by him.
3. Since the complainant was under treatment in several hospitals after the accident, the case was registered on only on 02.06.2020 as crime No.1082/2020 of the Cherthala police station. At the time of accident complainant was self employed glass etching worker by profession which is a skilled work. Due to the loss of vision of right eye in the accident he became permanently disabled to do the said work. The said permanent disability adversely affected to his occupation and his earning capacity was drastically diminished.
4. After the accident it was duly intimated to opposite party’s office by complainant’s wife and a PA claim form was duly issued from opposite party on the next working day. The claim form along with documents were furnished before the opposite party by the wife of the complainant for getting Rs.15 lakhs being the PA cover. In spite of repeated demands the PA claim was not disbursed. This amounts to deficiency of service from the part of opposite party. Hence the complaint is filed for realizing an amount of Rs.15 lakhs being the PA cover and Rs.1,00,000/- as compensation for mental agony sustained by the complainant due to deficiency of service of the opposite party.
5. Opposite party filed a version mainly contenting as follows:-
There is absolutely no deficiency in service on the part of the opposite party warranting jurisdiction of this Commission. The complainant never submitted any claim for personal accident amount nor submitted any documents and disability certificate for entertaining personal accident claim. The claim submitted was for own damage claim of motor cycle which was processed and amount paid. Hence the present complaint is premature.
6. This opposite party had issued a two wheeler package policy to the vehicle of the complainant bearing No.KL 4 AK 8708 for the period from 24.5.19 to 23.5.2020. Complainant made a claim for the damage sustained to his motorcycle and immediately a surveyor was appointed. He inspected the vehicle and submitted report of assessment. The same was processed and the claim was paid. No claim form was submitted for personal accident and no document was produced. Hence there is no deficiency in service on the part of the opposite party.
7. To process personal accident claim the certificate of doctor is required. There is no merit and bonafides in the complaint and there is no cause of action. Hence the complaint may be dismissed with compensatory cost.
8. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service on the part of opposite party as alleged?
- Whether the complainant is entitled to realise an amount of Rs.15,00,000/- along with interest @ 12 % per annum as claimed from the opposite party as prayed for?
- Whether the complainant is entitled to realise an amount of Rs.1,00,000/- as compensation as claimed?
- Reliefs and costs?
9. Evidence in this case consists of the oral evidence of PW1 & PW2 and Ext.A1 to A12 from the side of the complainant and the oral evidence of RW1 and Ext.B1 & B2 from the side of the opposite party. Ext.X1 was also marked.
10. Point No.1 to 3:-
PW1 is the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A12.
11. PW2 is working in ophthalmology department at MCH, Alappuzha. On 28.08.2022 the medical board had examined complainant Xavior and issued a disability certificate. It is marked as Ext.X1. He had given 30% disability. The total disability was 31%. On examination right eye was completely blind due to optica- terophy. Some jobs except both eyes for work.
12. RW1 is the divisional Manager of the opposite party. She filed an affidavit in tune with the version and marked Ext.B1 and B2.
13. PW1, the complainant is the registered owner of the motor cycle bearing Reg. No. Kl.04- AK-8708. He had insured the vehicle for a period of one year from 24/5/2019 to 23/5/2020 with the opposite party M/s Oriental Insurance Co. Ltd. He had also paid additional premium of Rs. 360/- for personal accident cover of Rs. 15 lakhs. While so on 31/12/2019 at about 11.PM when PW1 was returning from Thuravoor to his house through Alappuzha-Ernakulam National Highway and reached near Cherthala Railway Station the scooter accidently hit in a tar barrel which was kept in the middle of National Highway. PW1 sustained multiple fractures and the total loss of vision on the right eye. He had undergone treatment at Medical College Hospital Alappuzha from 31/12/2019 to 11/1/2020 and from 25/1/2020 to 5/2/2020. A case was registered by Cherthala Police as crime 1082/2020. After recovery and discharge from the hospital complainant’s wife filed a PA claim form before the opposite party claiming an amount of Rs. 15 lakhs which he was entitled. However opposite party did not release the PA claim. Hence it is alleged that this amounts to deficiency in service and hence the complaint is filed for realizing an amount of Rs. 15lakhs along with Rs. 1 lakh as compensation from the opposite party. Opposite party filed a version admitting the insurance policy from 24/5/2019 to 23/5/2020. According to them immediately on getting the claim for own damage a surveyor was appointed to assess the damage and the amount was released. However they have not received any claim form for personal accident claim and no documents were produced. Hence there was no deficiency of service from their part and they prayed to dismiss the complaint with compensatory cost. Complainant got examined as PW1 and marked Ext.A1 to A12. As per the request of the complainant he was sent to the medical college hospital, Alappuzha for getting a disability certificate. Accordingly he was examined by a medical board on 26/8/2022 and a certificate was issued. Additional professor of ophthalmology who was a member of Medical Board was examined as PW2 and the disability certificate was marked as Ext. X1. The Divisional Manager of the opposite party was examined as RW1 and Ext.B1 and B2 were marked. Relying upon the oral evidence of PW1 and 2 coupled with documents marked including Ext.X1 disability certificate the learned counsel appearing for the complainant pointed out that from Ext.X1 certificate it is seen that complainant has lost vision on the right eye and so he is entitled for 50% of the PA cover. The total PA cover allowable is Rs. 15,00,000/- and so PW1 is entitled for Rs. 7.5 lakhs. Per contra the learned counsel appearing for the opposite party pointed out that thought PW1 has filed a claim petition for own damage through his wife, the claim petition for personal accident coverage was not furnished and so opposite party was unable to process the claim. It was also pointed out that complainant was sent for examination by medical board from this commission and so there is no occasion for PW1 to produce a disability certificate before the opposite party. Hence according to them there is no deficiency of service from their part.
14. The fact that P W1 sustained injuries in an accident is not in dispute. Ext.A1 is the final report filed by the SI of police Cherthala before the Judicial 1st Class Magistrate Court No.1, Cherthala. Though the accident is admitted the case was referred as false, since the accident occurred due to the negligence of the complainant. Ext.A2 is the copy of RC book which shows that complainant is the owner of motor cycle bearing Reg. No. KL-04-AK-8708. Ext.A4 is the copy of Driving Licence of the complainant. Ext.A3 is the copy of policy issued by the opposite party to PW1 for the period from 24/5/2019 to 23/5/2020. The policy includes PA cover of Rs. 15 lakhs for owner driver for which Rs. 360/- was collected as additional premium. Ext.A5 and A6 are the original discharge summary and original OP ticket to prove that PW1 had undergone treatment at Medical College Hospital, Alappuzha. Ext.A8 is the true copy of case sheet which also prove that PW1 had under gone treatment at Medical College Hospital, Alappuzha. The oral evidence of PW2 coupled with Ext.X1 disability certificate proves that the vision of the right eye of the complainant was completely lost. Though in Ext.X1 the disability percent is shown as 30% and the total disability is shown as 31%, PW2 who is working as additional professor of Opthalmology department, Medical College Hospital, Alappuzha and who was a member of medical board, deposed that on examination the vision of right eye of PW1 was completely blind.
15. RW1 is the Divisional Manager of opposite party. During cross examination she admitted that if the vision of one eye is lost complainant is entitled for 50% of Rs. 15 lakhs ie, Rs. 7.5 lakhs. In Ext.B1 policy condition in page No. 3 there is a table by which the scale of compensation is shown with respect to the nature of injury. As per the table iii. Loss of one limb or sight of one eye the scale of compensation is Rs. 50% . Admittedly the total PA cover allowable is Rs. 15 lakhs and so since PW1 lost one eye, according to learned counsel appearing for the complainant he is entitled for Rs. 7.5 lakhs. The learned counsel appearing for the opposite party pointed out that as per Ext.X1 disability certificate the disability of eye is shows as 30% and the total disability is shown as 31.33 %. In Ext.X1 the board had certified that the above condition is non progressive and not likely to improve. As discussed earlier the oral evidence of PW2 shows that though the percentage of disability shown as 30%, the vision of right eye was completely blind. The learned counsel appearing for the complainant relied upon a ruling of the Hon’ble National Consumer Disputes Redressal Commission in National Insurance Company Ltd. Vs. Guntaka Subba Reddy.(2011 NDCRC 425). On going through the facts of the case it is seen that it is similar to the case in hand. There also the disability shown is 30%. However the Hon’ble National Commission was pleased to award 50% of the capital sum insured. Here also though the disability percentage of eye is shown as 30% the oral evidence of PW2 shows that right eye of the PW1 is completely blind. Hence we are in respectful agreement with the learned counsel appearing for the complainant and find that complainant is entitled for 50% of the PA claim of Rs. 15,00,000/- ie, Rs. 7.5 lakhs.
16. Complainant is claiming an amount of Rs. 1 lakh as compensation on account of deficiency of service from the part of opposite party. However it was contented by the learned counsel appearing for the opposite party that no personal claim petition was filed before the opposite party and so they were unable to process the claim. Hence there is no deficiency of service. The learned counsel appearing for the complainant relied upon the evidence of RW1 the divisional manager of opposite party in which it is stated that the claim form was submitted. But it is noticed that Ext.A5 discharge summary, Ext.A6 OP ticket, Ext.A9 scanning result are originals. It is an indication that it was not produced before the opposite party. Moreover the complainant was sent for medical examination by this commission on the basis of IA.298/2021 filed by him. The complaint was filed on 3/5/2021 and the medical examination was conducted on 26/8/2022. So it is crystal clear that PW1 was unable to produce the disability certificate before the opposite party without which they were not able to process the claim. Since the original documents are produced before this Commission it is also an indication that claim for PA coverage was not filed before the opposite party and without filing claim petition for PA coverage. Opposite party may not be able to process the same. In said circumstances as rightly pointed out by the learned counsel appearing for the opposite party there was no deficiency of service from their part and so PW1 is not entitled for compensation. These points are found accordingly.
17. Point No.4:-
In the result complaint is allowed in part.
a) Complainant is allowed to realise an amount of Rs.7,50,000/- along with interest @ of 9% per annum from the date of complaint ie, on 3/5/2021 till realization.
b) Complainant is allowed to realize an amount of Rs.2000/- as cost.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 16th day of January, 2023.
Sd/-Sri.S.SanthoshKumar(President)
Sd/-Smt.P.R.Sholy (Member)
Appendix:-Evidence of the complainant:-
PW1 - Xavier (Complainant)
PW2 - Dr.Manoj Venugopal(Opthalmologist)
Ext.A1 - Copy of Charge sheet
Ext.A2 - Copy of certificate of Registration
Ext.A3 - Copy of Insurance Policy
Ext.A4 - Copy of Driving Licence
Ext.A5 - Original discharge summary
Ext.A6 - O.P.tickets
Ext.A7 - Test result of eye
Ext.A8 - Copy of case sheet from MCH, Alappuzha
Ext.A9 - Scanning Report
Ext.A10 - Copy of AMVI’s Report
Ext.A11 - Copy of scene mahazer
Ext.A12 - Copy of course Certificate of Arts.
Ext.X1 - Disability Certificate.
Evidence of the opposite parties:
RW1 - S.Padmaja (Divisional Manager, Oriental Ins.Co.)
Ext.B1 - Motor Insurance Certificate cum Policy Schedule
Ext.B2 - Motor Claim Form
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Comp.by:
