Chandigarh

StateCommission

A/100/2020

Bajaj Allianz General Insurance Company Ltd. - Complainant(s)

Versus

Sanjay Kumar Mishra - Opp.Party(s)

Sachin Ohri Adv.

23 Mar 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	100 of 2020
Date of Institution	:	08.07.2020
Date of Order	:	24.03.2021

 

Bajaj Allianz General Insurance Company Ltd., Plot No.149, 4th Floor, Industrial Area, Phase 1, Chandigarh, through its authorized signatory, Sarpreet Kaur Ahluwalia, Assistant Manager, Legal, Bajaj Allianz General Insurance Co. Ltd., SCO 156-159, 2nd Floor, Sector 9-C, UT, Chandigarh.

…..Appellant /Opposite Party.

Versus

Sanjay Kumar Mishra H.No.1224, G/F New HBC, Sector 19, Panchkula 134113.

                                        …Respondent /Complainant.

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                MRS. PADMA PANDEY, MEMBER.

                MR. RAJESH K. ARYA, MEMBER.

 

Argued by:

 

Sh. Sachin Ohri, Advocate for the decree holder.

Sh. Sanjay Kumar Mishra, respondent in person.

PER  PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 28.02.2020, rendered by District Consumer Disputes Redressal Forum-II (now District Commission), UT, Chandigarh, vide which, it allowed Consumer Complaint bearing No.718 of 2018 with the following directions :-

“11]      In view of above discussion & findings as well as settled position of law, as made in the preceding paragraphs, we are of the opinion that the genuine claim of the complainant has wrongly & illegally been repudiated by the OP, which amounts to gross deficiency in service on its part. Therefore, the present complaint is allowed against the OP with direction to pay an amount of Rs.50,000/- (50% of sum insured of Rs.One lakh) to the complainant along with compository amount of Rs.15,000/- towards compensation for causing mental & physical harassment as well as litigation expenses.

         This order shall be complied with by the OP within a period of 30 days from the date of receipt of copy of this order, failing which it shall be liable to pay additional cost of Rs.10,000/- to the complainant, apart from the above relief.”

2.            In the complaint case before the Forum (now District Commission) the only allegation leveled by the complainant, that he took insurance policy for his vehicle i.e. TVS Max 100 Motorcycle bearing Regd. No.CH-03-Q-5394, which was effective from 13.02.2016 to 12.02.2017 and it also covered personal accident cover for owner-driver for (1) Death (2) Permanent Total Disability and (3) Permanent Partial Disability. The complainant met with road accident on 27.04.2016, in which, right leg of the complainant was fractured and he was declared 30% permanent disabled by Medical Board. FIR dated 16.05.2016 was also lodged with Police Station, Industrial Area, Phase 1, Chandigarh but the said vehicle could not be traced. Thereafter, the claim was lodged with the Opposite Party and surveyor was appointed but the Opposite Party vide letter dated 24.11.2018 repudiated the claim of the complainant.

3.                Aggrieved against the aforesaid order passed by the Forum (now District Commission), the instant appeal has been filed by the appellant/Opposite Party – Insurance Company.

4.                We have gone through the record and heard Counsel for the appellant as well as respondent in person.

5.          Counsel for the appellant/Opposite Party has submitted that as per the policy, the Company undertakes to pay the compensation as per the following scale :-

S.No.	Nature of Injury	Scale of Compensation
1.	Death	100%
2.	Loss of two limbs or sight of two eyes or one limb and sight of one eye.	100%
3.	Loss of one limb or sight of one eye	50%
4.	Permanent total disablement from injuries other than named above	100%

He further submitted that the said policy does not cover any kind of treatment/hospitalization and medical expenses. He further submitted that there was also a delay of 883 days in intimation of claim to the appellant insurance company and the said delay has not been explained by him, as such, the claim of the complainant was rightly repudiated vide letter dated 24.11.2018.

6.                On the other hand, Counsel for the respondent/complainant has submitted that the Forum (District Commission) has rightly passed the impugned order and prayed for dismissal of the appeal filed by the Opposite Party.

7.                After going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter.

8.                The only point for consideration before us is as to whether the District Commission has rightly passed the impugned order. The answer, to this, question is in the affirmative. It is the admitted fact that the complainant took insurance policy from the Opposite Party for his motorcycle bearing registration No.CH-03-Q-5394 w.e.f from 13.02.2016 to 12.02.2017. It is also the admitted fact that the complainant met with road accident on 27.04.2016, for which, FIR dated 16.05.2016 in Police Station, Industrial Area, Phase-1, Chandigarh was registered and in the said accident, his right leg got badly fractured, which was operated twice and finally he was declared 30% permanent disabled by the Medical Board. It is also the admitted fact that when the claim was lodged by the complainant, his claim was repudiated vide letter dated 24.11.2018 (Annexure A-4) as the claim has been lodged after a delay of 883 days and the claim is payable only if death or permanent disability occurred not for temporary disablement.

9.                     With regard to delay of 883 days in intimation of the claim is concerned, it has been clearly stated by the respondent/complainant in his written arguments that claim of the complainant is not a motor claim but it is a P.A. claim for permanent disability due to road accident dated 27.04.2016 and such permanent disability cannot be assessed immediately after accident but can be assessed only after complete treatment, which may take considerable time may be of one year or two and so on dependent upon the line of treatment by the expert surgeons.

10.              With regard to permanent or temporary disability is concerned, the appellant/Opposite Party stated in its reply that “in case of permanent disability upto 50%, coverage shall be 50% payable upto maximum limit of Rs.50000/-, and as per chart provided at serial No.3, Loss of one limb – Scale of Compensation would be 50%.” The case of the complainant was securely covered for disability terms “upto 50%” and “One Limb”. Even the Forum while passing the impugned order stated that as per Clause No.3 of the Personal Accident Insurance Policy in question (Page No.22 (Ann.C-6), Permanent Partial Disability for ‘A leg up to beneath the knee’ is payable for 50% of the sum assured.  As such the genuine claim of the complainant has wrongly been rejected by the OP claiming being not covered or payable x x x x”.

11.            The Hon’ble Supreme Court of India in Civil Appeal No.8981 of 2010 titled as “Raj Kumar Vs. Ajay Kumar & anr., decided on 18.10.2010 stated as under :-

“6. x x x x Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.”

x x  x x x x

“9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further …….”

12.               Moreover, the Forum while passing the impugned order rightly cited judgment dated 04.10.2017 of the Hon’ble Supreme Court in Civil Appeal No.15611 of 2017 – Om Prakash Vs. Reliance General Insurance and Anr. which also goes in favour of the complainant because in the said judgment it has been categorically held that:-

“a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator.”

In view of the aforesaid paras, we are of the view that the appellant Insurance Company wrongly repudiated the genuine claim of the complainant, as such, the Forum has rightly passed the impugned order.

13.              For the reasons recorded above, we are of the opinion that the order passed by the Forum (now District Commission), being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity. Hence, the appeal filed by the Opposite Party, being devoid of merit, must fail, and the same stands dismissed, with no order as to costs. The order of the Forum (now District Commission) is upheld.

14.              Certified copies of order be given to the parties/their Counsel free of charge.

Pronounced.

24.03.2021                                                                      Sd/-

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

Sd/-

(RAJESH  K. ARYA)

MEMBER

rb