JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          The complainant/respondent obtained a personal accident insurance policy from the petitioner HDFC Ergo General Insurance Co. Ltd., for the period from 23.12.2015 to 22.12.2016.  Under the policy, a total sum insured of Rs.10 lac was payable to the complainant/respondent interalia in case of permanent total disability.  However, 50% of the sum assured was payable to him in case of total permanent loss of one limb.  Condition no.2 of the general conditions of the policy stipulated with the policy would be voidable in case of any misrepresentation, mis-description or non-disclosure on the part of the insured in respect of any material particular. 

2.      The case of the complainant/respondent is that on 08.02.2016, he met with a road accident at Alwar Road, Rajgarh when he was hit by a car.  The complainant was admitted in Dhanwantri Hospital & Research Centre, Jaipur on the same day and was discharged on 12.02.2016.  His right leg had to be amputated and as per the certificate issued by the hospital, he suffered disability to the extent of 65%.  The compensation, in terms of the insurance policy taken by the complainant, having not been paid, he approached the concerned District Forum by way of a Consumer Complaint.  

3.      The complaint was resisted by the insurer which inter-alia stated in its written version that the documents sought by them had not been provided by the insured. 

4.      The District Forum, vide its order dated 14.06.2016, directed the insurer to decide the claim within two months and also pay Rs.10,000/- as compensation to the complainant alongwith cost of litigation quantified at Rs.5,000/-. 

5.      Being aggrieved from the order passed by the District Forum, the complainant approached the concerned State Commission by way of an appeal.  Vide impugned order dated 25.10.2018, the State Commission directed the insurer to pay a sum of Rs.10 lacs to the complainant alongwith 9% interest from the date of the accident and cost of proceedings quantified at Rs.30,000/-.  Being aggrieved from the order passed by the State Commission, the petitioner insurer is before this Commission. 

6.      The main submission of the learned counsel for the petitioner is that the injury which led to amputation of his right leg was suffered by the complainant prior to taking the insurance cover with effect from 23.12.2015 and therefore, not only a misrepresentation was made by him while lodging the claim, even the injury suffered by him was not covered under the insurance policy taken by him. 

7.      A perusal of the record of the Dhanwantri Hospital & Research Centre, Jaipur would show that the complainant Mr. Ramesh Chand Saini was admitted in the said hospital on 08.02.2016 and at the time of admission, he had given history of a road accident at about 11:30 am on 08.02.2016.  It was stated by him that he was hit by a moving car.  The FIR at the concerned Police Station was lodged by the nephew of the complainant who inter-alia stated in the said FIR that at about 11:30 am on 08.02.2016, when he, alongwith the complainant, was standing at Old Octroi Alwar Road, waiting for a bus, driver of car number RJ-14CC-9037 hit on the right leg of the complainant.  He however, stated that the complainant was moved to a hospital but considering the injury, he was referred to Jaipur.  The submission of the learned counsel for the petitioner is that on enquiry at Government CHC, Rajgarh, the investigator appointed by the insurer was informed that the complainant had not been brought to the said hospital on 08.02.2016.  This according to the learned counsel, shows that the version given in the FIR was incorrect.  The contention, in my view, is mis-conceived.  Nowhere in the FIR, the nephew of the complainant claimed that they had first gone to Government CHC at Rajgarh.  The name of the hospital where they had first gone, was not given in the FIR.  The investigator appointed by the insurer did not record the statement of the nephew of the complainant or of the complainant to find out as to which hospital at Rajgarh they had visited before going to Dhanwantri Hospital & Research Centre, Jaipur.  The FIR clearly indicates that no treatment was given to the complainant in the hospital where they had initially gone at Government CHC, Rajgarh.  Therefore, the omission of name of the hospital at Rajgarh in the FIR would be inconsequential. 

8.      The driver of the offending vehicle was examined by the investigator and in his statement recorded by the investigator, he maintained that the accident involving the car driven by him, had taken place in January/February when he was going to Jaipur from Alwar via Rajgarh.  Though he blamed the complainant for the accident by claiming that the complainant was crossing the road at a high speed, this was only to be expected since the driver would not admit rash and negligent driving on his part.  Though the time of the accident given by him was 2-3 pm, discrepancy in time would be inconsequential, considering that the statement of the driver was recorded quite some time after the accident.  What is material is that the driver affirmed the accident at Alwar Road, Rajgarh, from the vehicle was being driven by him.  Therefore, the statement of the driver broadly supports the case set up by the complainant. 

9.      Though the case of the insurer seems to be that the complainant had got injured before taking the insurance cover effective from 23.12.2015, no evidence was collected by the investigator to show that the complainant had actually suffered injury prior to 23.12.2015.  If he had suffered injury prior to 23.12.2015, he must have taken treatment somewhere before he was admitted in Dhanwantri Hospital & Research Centre, Jaipur on 08.02.2016.  No record of the treatment of the complainant at any hospital anywhere before 08.02.2016 has been found by the investigator.  Therefore, I see no reason to disbelieve the case set out by the complainant when the said case found ample corroboration not only from the history given at the time of treatment in Dhanwantri Hospital & Research Centre, Jaipur but also from the statement of the driver recorded by none other than the investigator appointed by the insurer.  Therefore, I find no ground to interfere with the finding returned by the State Commission as regards the injury to the complainant. 

10.    It is next submitted by the learned counsel for the petitioner that since the injury suffered by the complainant was only to the extent of causing 65% disability, only 50% of the sum insured was payable to him.  11.  The question as to what constitutes a total permanent disability came up for consideration of this Commission in RP No.2003 of 2018 Life Insurance Corporation of India & Anr. Vs. Mahaveer Prasad Regar decided on 02.08.2018 and the following view was taken:

           In Cholamandalam MS General Insurance Co. Ltd., Vs. Suresh Chand Yadav & Ors., I (2017) CPJ 424 (NC), the complainant/ respondent was the beneficiary of a Group Personal Accident Insurance Scheme taken by his employer.  The said policy provided for payment of compensation in the event of permanent total disablement of the insured for a period of 12 consecutive months.  The total and permanent disablement was defined in the policy to mean that the insured was unable to engage in each and every occupation or employment for compensation or profit, for which he was reasonably qualified by education, training or experience.  The policy also provided for payment of compensation in a case of permanent partial disablement, but the benefit payable in that case was only 50%. The bus, which the complainant / respondent was driving, he being a driver with RSRTC, met with an accident.  The complainant got seriously injured in the said accident and his one leg had to be amputated.  He lodged a claim for payment of Rs.2.00 lacs, alleging permanent disablement. 

          The complaint filed by the complainant in the above referred matter, having been allowed by the fora below, the insurer approached this Commission contending that the amputation of only one leg had not resulted in permanent disablement of the complainant.  Dismissing the revision petition, this Commission inter-alia observed and held as under:

          “5.      Section 2(1)(l) of the Workmen’s Compensation Act, 1923 defines total disablement to mean such disablement whether of a temporary or permanent nature, as incapacitates the workman for all work which he was capable of performing, at the time of accident resulting in such disablement.  The aforesaid provision came up for consideration of the Hon’ble Supreme Court in Pratap Narain Singh Deo Vs. Srinivas Sabata & Anr. (1976) 1 SCC 289.  In that case the employee, who was a carpenter had lost is left hand above the elbow and therefore had become unfit for the work of carpenter.  It was held by the Commissioner, he having been rendered unfit of a work of carpentry which could not be done by one hand alone had suffered total disablement.  The findings recorded by the Commissioner were accepted by the Hon’ble Supreme Court.  Thus despite use of the words ‘which he was capable of performing at the time of the accident’ the test applied was whether he could despite the injury, continue to be engaged in the work which he was performing at the time of the accident.

6.     In K. Janardhan Vs. United India Insurance Company Ltd. & Anr. (2008) 8 SCC 518, the right leg of the work has to be amputated above the knee.  The question which came up for consideration of the Supreme Court was as to whether he had suffered a 100% disability.  Referring to its earlier decision in Pratap Narain Singh Deo (supra) it was held that he had suffered a 100% disability and incapacity in earning his keep as a tanker driver.  The Hon’ble Supreme Court rejected the contention of the insurance company that amputation amounted to 60% reduction in earning capacity since the doctor had opined disability upto 65%.

7.     In Mohan Soni Vs. Ram Avtar Tomar & Ors. (2012) 2 SCC 267, the appellant who use to earn his livelihood as a cart puller met with an accident as a result of which his left leg had to be amputated below the know.  He filed an application before the Motor Accident Claims Tribunal, claiming compensation under Section 166 of the Motor Vehicles Act, 1988.  In the identity card given to the appellant his disability was shown as 60%.  The Tribunal held that his disability could not be above 50% and fixed compensation accordingly.  Being aggrieved he approached the High Court by way of an appeal.  The compensation was enhanced by the High Court.  Being still dissatisfied, he approached the Hon’ble Supreme Court by way of a Special Leave.  Allowing the appeal, Hon’ble Supreme Court inter-alia observed and held as under:

        “8.    …… In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability.  This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways.  Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country.  The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned.  But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect.  The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effect on one’s personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller”.

“13.  Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income b changing his vocation or aby adopting another means of livelihood.  The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector of leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income”. 

8.      In Jakir Hussein Vs. Sabir & Ors. (2015) 7 SCC 252, the appellant before the Hon’ble Supreme Court who at the relevant time was working as a driver, was driving the tempo which met with an accident, causing grievous injuries to him.  He sustained grievous and compound fractures in his right arm, preventing him from performing his regular work as a driver.  He preferred a claim under Section 166 of the Motor Vehicle Act, 1988.  Being dissatisfied with the quantum of compensation awarded to him by the Tribunal and the High Court, he approached the Hon’ble Supreme Court by way of an appeal and contended that he being a driver it was a case of the permanent disablement, though, the doctor had assessed his permanent disability at 55%.  Relying upon its earlier decision, in Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343, where the Hon’ble Supreme Court had given illustration of a driver who had permanent disablement of hand and had held that the loss of future earning capacity in such a case would be virtually hundred percent, the Hon’ble Supreme Court held that the disablement in the case of the appellant before it, may be treated as hundred percent loss, since he will never be able to work again as a driver.  The contention of the insurer that the appellant could take up another alternative employment was rejected by the Hon’ble Supreme Court.  The aforesaid judgment squarely applies to this case, since the respondent / complainant being a driver, will never be able to drive the vehicles of his employer or any other vehicle.  The disability of the respondent / complainant therefore, would be permanent and hundred percent.  This is more so when there is no evidence to prove that the respondent / complainant is qualified by education, training or experience to obtain another employment where duties of the office can be performed without use of both the feet.”

12.    The complainant in this matter was working at a stone crusher lifting the stones used in the crusher.  His right leg has got amputated below the knee.  Therefore, it is not possible for him to continue as a worker at the stone crusher, since a person with only one leg cannot lift and carry stones at a stone crusher.  The complainant thus became incapable of adequately and fully performing the work which he was doing at the time of the accident.  The disability of the complainant on account of amputation of his right leg would result in total permanent disability since he was employed at a stone crusher and his disability would be 100%.  There is no evidence to prove that the complainant would get an alternative and adequate employment despite the permanent total disability in the form of amputation of his right leg.  There is no evidence of the complainant being qualified enough to obtain an alternative and suitable employment despite amputation of his right leg.  Therefore, I have no hesitation in holding that the complainant had suffered total permanent disability and therefore, he was entitled to 100% of the sum insured.

13.    For the reasons stated hereinabove, the order of the State Commission to the extent the insurer was directed to pay a sum of Rs.10 lacs to the complainant cannot be faulted with.  However, interest to the complainant, in my opinion, should be given to the complainant from the date of institution of the complainant and not from the date of the accident.  The order passed by the State Commission is therefore, modified to this extent.  However, he shall be entitled to the cost of litigation awarded by the State Commission.  The Revision Petition stands disposed of.