BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
C.C. No. 341/2005 Filed on 05.10.2005
Dated : 30.09.2010
Complainant:
Baiju. G.S, Baiju Bhavan, Panacode, Nedumangadu, working as Systems Supervisor, Mathrubhumi, Vanchiyoor, Thiruvananthapuram-33.
(By adv. Kadakampally K. Jayakumaran Nair)
Opposite party :
Senior Divisional Manager, United India Insurance Company Ltd., Divisional Office No. 1, 3rd Floor, CWC Building, LMS Compound, Thiruvananthapuram-33.
(By adv. R. Jagadish Kumar)
This O.P having been heard on 31.07.2010, the Forum on 30.09.2010 delivered the following:
ORDER
SRI. G. SIVAPRASAD: PRESIDENT
The case of the complainant is that complainant is a policy holder of the opposite parties from 1998 onwards for his motor cycle bearing Reg. No. KL.01 N 5669, Hero Honda Splendor, that on 13.08.2003 at about 4 a.m complainant was riding his motor cycle from his office to house and when he reached near Narmada, Ambalamukku, Kowdiar, another motor cycle bearing Reg. No. KL-01 P 6035 came to the wrong side of the road by violating the traffic rules and hit the motor cycle of the complainant, that as a result of the hit complainant was thrown away and fell unconscious, that he was taken to Medical College Hospital, Thiruvananthapuram by the police party, later he was shifted to KIMS Thiruvananthapuram, and treated there as I.P from 13.08.2003 to 24.09.2003 and that on diagnosis it was found that: Accute sub dural Haematoma right tempero occipital region with mass effect and mid-line shift, fracture base of skull, fracture maxilla, fracture both temporal bone, fracture nasal bone, lacerated wound on forehead, L.W on upper lips and nose, history of epistaxis and bilateral ear bleeding etc. Complainant was treated by Neuro Surgeon Professor Dr. A. Marthanda Pillai, Dr. K. Balakrishnan Nair, Dr. Devin Prabhakar, and Dr. Meena Chakrabarthi, that at present complainant is having hearing impairment, loss of vision, disfiguration of the face, facial paresis, occasional behavioural abnormalities and severe headache. It is submitted by the complainant that his vehicle was insured with the opposite party vide policy No. 100400/31/02/06019 valid from 18.10.2002 to 17.10.2003. Policy covers personal accident, compulsory personal accident, third party coverage, that as per the policy opposite party is liable to compensate the complainant upto an amount of Rs. 1,75,000/- by considering the complainant as a passenger-cum-owner driver of the vehicle. Opposite party repudiated the claim without considering the disabilities and incapabilities of the complainant. Hence this complaint to direct opposite party to pay an amount of Rs. 1,75,000/- with interest along with costs to the complainant.
Opposite party filed version contending that the complaint is not maintainable either in law or on facts, that opposite party had issued a two wheeler package policy in respect of the motor bike KL-01 N 5669, that complainant has not mentioned what type of policy he is holding, that consumer has to prove the accident, that the normal course of action for the complainant is to move the MACT on the basis of the policy of the motor cycle KL-01 P 6035. Opposite party is bound by the terms and conditions and recitals of the policy. There was no deficiency on the part of the opposite party in repudiating the claim. Hence opposite party prayed for dismissal of the complaint.
Points that arise for consideration are:-
Whether the complainant is entitled to get Rs. 1,75,000/- from the opposite party?
Whether there is deficiency in service on the part of the opposite party?
Whether the complainant is entitled to compensation and costs?
In support of the complaint, complainant has filed proof affidavit and Exts. P1 to P14 were marked. In rebuttal, opposite party has produced specimen copy of the two wheeler package policy which has been marked as Ext. D1. Opposite party has not filed affidavit nor adduced oral evidence.
Points (i) to (iii):- Admittedly, complainant is a policy holder of the opposite party vide policy No. 100400/31/02/06019 and the same is valid from 18.10.2002 to 17.10.2003. Ext. P1 is the original policy. On perusal of Ext. P1 it is seen that the said policy is a motor cycle/scooter package policy, name of the insured is Mr. G.S. Baiju, and period of insurance is from 18.10.2002 to 17.10.2003. On perusal of schedule of premium it is seen that opposite party has collected net premium of Rs. 790/- which includes TP-Basic: Rs. 160/-, PA to Passengers No.2 (Rs. 75,000/-) : Rs. 105/-, Compulsory PA to Owner-Driver (Rs. 1,00,000/-) : Rs. 50/- and OD Basic : Rs. 314/-. Ext. P2 is the copy of the FIR in Crime No. 1282/03 dated 13.08.2003. Ext. P2 discloses the nature of accident met by the complainant. Ext. P3 is the attested copy of the accident register-cum-wound certificate issued by Medical College Hospital, Thiruvananthapuram. Ext. P4 is the discharge summary issued by KIMS hospital, Thiruvananthapuram. As per Ext. P4 date of admission is 13.08.2003 and date of discharge is 24.09.2003, Diagnosis: Subdural Hematoma/fracture base of skull, maxilla, and mandible, as regards treatment: Craniotomy and evacuation of acute subdural Hemtoma done under GA on 13.08.2003. Ext. P5 is the certificate issued by KIMS, Thiruvananthapuram. Ext. P6 is the certificate issued by Dr. Devin Prabhakar to Baiju. Ext. P7 is the copy of the personal accident insurance claim form issued by opposite party along with personal accident insurance medical report. Ext. P8 is the copy of the letter dated 05.08.2005 addressed to Deputy Manager-Grievance of the opposite party by the complainant. Ext. P9 is the repudiation letter dated 09.08.2005 issued by opposite party to the complainant. The contents of Ext. P9 may be reproduced: “Kindly note that the two wheeler package policy issued to you specifically states that bodily injury/death sustained by the owner/driver of the vehicle in direct connection that the vehicle insured whilst mounting into/dismounting from or travelling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in: 1) 100% of CSI for death, Loss of Two Limbs or sight of both eyes or one limb abs sight of one eye 2) 50% of CSI for loss of one limb or sight of one eye, 3) 100% for Permanent Total Disablement from injuries other than named above. Opposite party, as per Ext. P9, repudiated the claim on the ground that complainant's claim does not fall under the purview of the policy issued to him. Ext. P10 is the bill issued by KIMS, Thiruvananthapuram to the complainant. Ext. P11 is the Standing Disability Assessment Board Certificate dated 25.11.2005 issued by General Hospital, Thiruvananthapuram to Mr. Baiju stating permanent ENT disability 60%. Ext. P12 is the Standing Disability Assessment Board Certificate dated 02.12.2005 issued by Superintendent, General Hospital, Thiruvananthapuram wherein permanent disability stated is 60%. Ext. P13 is the certificate dated 16.10.2006 issued by Dr. A. Marthanda Pillai. Ext. P14 is the discharge summary dated 24.06.2006 issued by Vaidyamadham Vaidyasala. As per Ext. D1, Two wheeler Package Policy, there is a provision for liability to third parties and personal accident cover for owner-driver. There is no dispute that complainant's vehicle insured with opposite party. By Exts. P2 and P3 it is evident that complainant met with an accident on 13.08.2003 at about 4 a.m and he fell unconscious and he was taken to Medical College Hospital by the police party and he was treated in KIMS Hospital. Exts. P11 & P12 would show the permanent disabilities certified by Standing Disability Assessment Board. As per Ext. P11 there is 60% ENT disability to the complainant as assessed by the said board, whereas as per Ext. P12 complainant's permanent ophthalmic disability is 60%. The main stance of the opposite party is that complainant ought to move a claim before MACT to get his grievance redressed on the basis of the policy of the motor cycle KL-01 P 6035. It is further averred in the version by the opposite party that the offending vehicle may not be possessing proper records which might be the reason for the complainant to adopt a short cut method by moving an application before this Forum. Complainant has produced his treatment records and disability certificates. As per Ext. D1 there is a provision for personal accident cover for owner-driver and opposite party is liable to pay compensation as per the nature of injury as stated in the policy conditions. As per the policy conditions the compensation shall be payable under only one of the items (i) to (iv) mentioned in the schedule in respect of owner-driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed a sum of Rs. 1 lakh during any one period of insurance. In this case complainant is not a third party. As per Ext. P1 complainant himself is the owner and insured of the said vehicle. Admittedly, opposite party has collected premium towards compulsory PA to owner driver, thereby complainant has right to approach this Forum for compensation provided under personal accident cover for owner-driver. As per Ext. P12 there is a permanent ophthalmic disability of 60%. As per Ext. D1 for loss of one limb or sight of one eye, compensation prescribed is 50%. 60% permanent disability will amount to loss of sight of right eye which comes under item (iii) mentioned in the nature of injury in Sec. III-personal accident cover for owner-driver vide Ext. D1. It is further to be noted as per Ext. P11 that there is 60% permanent ENT disability which comes under item (iv) in the nature of injury as per Ext. D1. Both disability certificates are seen issued by Standing Disability Assessment Board of the Government Hospital. There is no reason to disbelieve the veracity of the Exts. P11 & P12. Admittedly there is 60% permanent disability as per Ext. P11 & P12. As per Ext. D1, the scale of compensation for loss of sight of one eye is 50%, while scale of compensation for permanent total disablement under item (iv) is 100%. As per policy conditions 100% compensation is offered to permanent total disablement from injuries other than named in items (i) to (iii). Complainant has filed affidavit. He has not been cross examined by opposite party to cast cloud over it. Complainant has succeeded in establishing the case to the extent that the alleged injuries resulted from the aforesaid accident. Repudiation of claim by the opposite party will definitely against the terms of the policy and will amount to deficiency in service. In view of the foregoing discussion and evidence available on records we are of the opinion that complainant is entitled to get compensation under personal accident cover for owner-driver. Taking the overall view of the matter, we deem that 60% of the assured amount would meet the ends of justice.
In the result, complaint is allowed. Opposite party is directed to pay Rs. 60,000/- (60% of the assured amount of Rs. 1,00,000/-) with 9% interest from the date of complaint (05.10.2005). Opposite party shall pay Rs. 1,000/- towards costs of the proceedings.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of September 2010.
G. SIVAPRASAD,
President.
BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
jb
C.C. No. 341/2005
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Baiju G.S
II COMPLAINANT'S DOCUMENTS :
P1 - Schedule of premium
P2 - Copy of FIR in Crime No. 1282/03 dated 13.08.2003
P3 - Copy of Accident Register-cum-wound certificate
P4 - Copy of discharge summary
P5 - Medical certificate dated 19.04.2005
P6 - Certificate issued by Dr. Devin Prabhakar to Baiju.
P7 - Copy of personal accident insurance claim form.
P8 - Copy of letter dated 05.08.2005
P9 - Repudiation letter dated 09.05.2005 issued by opposite party.
P10 - Copy of medical bill dated 24.09.2003
P11 - Medical certificate from standing disability assessment board
certificate dated 25.11.2005
P12 - Medical certificate from standing disability assessment board
certificate dated 02.12.2005
P13 - Certificate dated 16.10.2006 issued by Dr. A. Marthanda Pillai
P14 - Discharge summary dated 24.06.2006 issued by Vidyamadam
Vaidyasala
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Two wheeler package policy
PRESIDENT
jb
