R. VIJAYAKUMAR, MEMBER.

            This is a complaint filed U/s. 12 of Consumer Protection Act.

          The complaint is filed for getting Rs.50,000/- as accident benefit with interest at the rate of 18% from 28.11.2006 compensation Rs.10,000/- and cost Rs.5000/-

          The complainant’s case is that his genuine claim was rejected by the opp.parties.  The complainant is a coir worker of the Registered Coir Co-Operative Society by name Pulikuzhy Coir Vyavasaya Co-Operative Society Ltd., No.Q.626, Cherumoodu, Vellimon.P.O., Kundara, Kollam.   The coir workers of registered co-operative societies are beneficiaries of Group personal accident Insurance Scheme implemented by the coir Board in connection with Insurance companies.  On 28.11.2006 , 11 A.M. the complainant met with an accident while he was loading coir bundles in a lorry under the employment of the said coir co-operative Society.   The accident happened at Cherumood UPS junction, Pulikuzhy Road and a case was registered by Kundara Police station as Crime No.22/07.   The complainant was immediately taken to the Matha Hospital, Kollam and referred to District Hospital and further referred to Medical College, Thiruvananthapuram.  He was  admitted there and treated  upto 16..12..2007 as inpatient.   The complainant sustained very serious fractures to [Trochanter] right leg.  Surgery was done to right hip and doctors advised prolonged treatment and bed rest.  After  the accident the complainant suffered permanent total disability and he could not do any job..  The complainant applied  through the society and the coir board issued the claim form of Oriental Insurance Company on 30.10.2007.   The 1^st opp.party forwarded the claim form to the Oriental Insurance Co along with other documents.  Later on the 1^st opp.party issued another claim form of United India Insurance Company and the complainant submitted the claim form once again along with related documents.  On 19.8.2008 the complainant received a letter dated 6.8.2008 from the 1^st opp.party informing that the New India Assurance Co had returned the claim form since the period of Insurance was over on 1^st December 2006 and they cannot process the claim for the accident occurred on 28.11.2006 due to delay in submission of the related papers of accident.   The letter dated 6.8.2008 showing the cause of rejection of claim is illegal.   The 1^st opp.party is responsible for any delay.   The 1^st  opp.party issued claim form of Oriental Insurance Company and the complainant submitted all the documents including Disability Certificate.   There after for 2^nd time the opp.party issued claim form of United India Insurance company and then the complainant submitted all the documents once again.  Later  the opp.party informed the complainant that New India Assurance Company  returned the claim form since delay in filing documents.   As per the direction from the 1^st opp.party,  the complainant produced certificates from the Doctors who attended the complainant in various hospitals at Thiruvananthapuram and Kollam on two times for two claim forms.  The complainant had undergone Govt. Medical Board Examination consisting of 5 doctors from Govt. District hospital and Medical Board issued a certificate showing that the complainant is totally and permanently incapacitated for further service of any kind.   The complainant  produced the Disability certificate along with the claim forms.   There is no delay in filing claim forms and documents for the Personal Accident Insurance Scheme.   The purpose the Insurance Scheme is defeated by the opp.party by the deficiency and negligence in service..  Hence the complaint.

          1^st opp.party filed version contending the allegations raised by the complainant.  The 1^st opp.party’s case is that the only reason for repudiating the claim is the inordinate delay  in submitting claim form along with relevant documents and 1^st opp.party is not responsible for the undue delay from the part of the complainant.  The complainant  was found discharged from the Medical College Hospital, Thiruvananthapurm on 16.12.2006  as per the discharge card shown by him  The complainant submitted his application for claim before the Coir Board Office, National Coir Training and Design Centre on 30^th October, 2007.  The copies of the wound  certificate, FIR, Treatment Certificate were not duly attested by a Gazetted Officer and hence the complainant was required to furnish the duly attested documents thereafter..  The United India Assurance Company was entrusted with the group insurance of Coir workers coming under the scheme during the period 1.12.2007 to 30.11.2008.   The complainant submitted the claims form to the 1^st opp.party belatedly during April 2008.   The documents found attached to it were found attested by the Gazetted  Officer on 11.4.2008 and 15..4..2008.   The completed application was forwarded from the National Coir Training and Design centre to the Coir Board head office on 24.4.2008 and the same was thereafter forwarded to the New India Assurance Company, M.G. Road Ernakulam on 3.6.2008 for consideration of the same.   The New India Assurance Company thereafter rejected the claim application stating that the accident occurred on 28.11.2006, that the period of insurance coverage ceased to effect by 1.12.2006 and that the claim could not be considered for want of submission of application and related papers in due time. The decision of acceptance or rejection of claim as per rules is within the jurisdiction of 2^nd opp.party and the 1^st opp.party has nothing to do with the procedure in that regard.  There had been changes in the engagement  of insurance company.  At the time of occurrence of accident alleged to have been the insurance coverage was solely vested with the New India Assurance Company.  But during the time when the complainant contacted the 1^st opp.party through coir society, the insurance coverage was vested with Oriental Insurance Company..  However during when the complainant submitted the claim application with all relevant documents the insurance coverage was vested with United India Insurance Co. Ltd.  The allegation  mooted by the complainant that claim was rejected  due to the delay in submission of the related papers of the accident and that the opp.party was responsible for delay was absolutely baseless and the same is therefore denied.   The 1^st opp.party forwarded the claim of the complainant after conducting personal verification and inspection to the coir board head office, Cochin for onward transmission of the same to the Insurance Company to whom the insurance coverage was vested with as on the date of accident..  The New India Assurance Company after perusal and processing the same rejected the claim stating that  on perusal of the claim form we observed that the accident occurred on 28.11.2006 and the claim application was received in their office only on 4.6.2006 ie. Nearly 18 months after the date of accident.  As per the terms and conditions of the group personal accident policy,  upon the happening of any event  which may give rise to a claim under the policy, written notice with full particulars must be given to the company within one calendar month.  The coir board workers group personal accident insurance scheme is being renewed year after year with different insurance companies on the basis of quotations received from Nationalized Insurance Companies.   The lowest rate quoted insurance company is only selected for an year from December of that year to the month of November during next year.  No contribution/subscription is collected from the Coir workers towards the premium .   The complainant had sustained Trochantiic fracture in right leg on 28.11.2006.  The complainant has furnished a disability certificate from a registered medical practitioner.  There is no deficiency or negligence from the part of 1^st  opp.party and therefore the complaint is devoid of merits and liable to be dismissed.

          The case of the 2^nd opp.party is that the claim advanced  by the complainant is beyond the scope of Group Personal Accident  policy coverage  issued by the 2^nd opp.party.   The complainant has approached this Forum with unclean hands by suppressing the material facts and filed only to  vex and harass the 2^nd  opp.party The definition complaint, complainant, consumer dispute service as defined in Sec.2[1] of the Consumer Protection Act do not cover the claim made out in the complaint.   The complainant in this case has no manner of cause of action to raise any dispute against the 2^nd  opp.party by virtue of the insurance policy issued by this opp.party in favour of him.   The 2^nd opp.party had issued a Group Personal Accident Insurance Policy in favour of Coir Board..  1^st opp.party covering the risk of four lakhs coir workers for a period commencing from 1.12.2005 to 3.11.2006.  Under the above insurance policy issued by this opp.party, the risk of the coir workers to a maximum sum insured of Rs.50,000/- is covered for death or the permanent total disability as specified in the schedule of clauses attached with the policy.   The scale of compensation payable to the beneficiaries under the Personal Accident Coverage of the policy is specifically mentioned in the schedule attached to the policy, which form part of the insurance policy.   The scale of compensation payable to the beneficiaries of the policy and the nature of disability required for raising a claim under the policy and the extent of compensation payable on the basis of the percentage of disability for the scheduled injuries mentioned in the policy are specifically enumerated  in the schedule of benefits attached with the policy.  The terms and conditions  mentioned in the schedule of benefits attached with the policy, which form part of the policy.  As per condition number one of the policy issued to the 1^st opp.party it is a duty of the insured to intimate the claim in writing with full particulars before the 2^nd  opp.party within one calendar month after the occurrence of such an incident.  The  incident occurred on 28.11.2006, but  the insured has not intimated the above  incident in writing to the 2^nd  opp.party within the time frame mentioned  in condition number one of the policy.   Even according to the averments in the complaint  the 1^st opp.party issued a claim form of M/s. Oriental Insurance Company on 30.10.2007 and thereafter they have forwarded the above claim form to the Oriental Insurance Company only .   The further averment in the complaint is that the 1^st opp.party later on issued a claim form of M/s United India Insurance Company to the complainant and the duly filed claim form along with the documents were again submitted to United India Insurance Company.   There is not even an averment or allegation in the complaint that the insured has reported the claim before the 2^nd opp.party  within the time stipulated in condition number 1 of the policy.   From the averments in the complaint itself, it is a vivid fact that the insured has deliberately violated condition number 1 of the policy and as such the 2^nd  opp.party has no contractual obligation  at all to entertain the highly belated claim of the complainant in this case.   In the light of condition number 1 of the policy, this opp.party has no contractual obligation to entertain or to consider the belated claim of the complainant in this case.  It is further submitted that the nature of injury sustained to the complainant will not come under the purview of injury mentioned as per the schedule attached with the policy.  In the case of a permanent partial disability claim other than the schedule of injury mentioned in the policy it is obligatory on the part of the claimant to appear before the panel of doctor of all opp.party in order to assess the percentage of permanent partial disability if any sustained to the complainant as a result of the alleged injuries  The complainant is having no manner of cause of action against the 2^nd opp.party and the complaint is not entitled to attribute any deficiency in service upon the side of 2^nd opp.party..  The complaint is liable to be dismissed with compensatory cost as against the 2^nd opp.party.

The points that would arise for consideration are:

1.     Whether there is any deficiency in service from the part of opp.party?

2.     Compensation and cost.

For the complainant PW.1 was  examined  Exts. P1 to P9 marked

For the opp.party DW.1 was examined Exts. D1 to D5 marked

POINTS:

Admittedly the complainant is a Coir worker and  he met with an accident on 28.11.2006 while loading the  bundles of Coir.   The fact that he was under treatment for a long time in various hospitals also was not disputed.

          The main contention of the 1^st opp.party is that the complainant had submitted the claim  belatedly .   The claim form submitted only on 30.10.2007 .  But the relevant documents were not attached with the claim form.  The completed application was forwarded from National Coir Training and Design Centre to the Coir Board head office on 24..4..2008 only and the same was  there after forwarded to the New India Assurance Company, MG Road, Ernakulam on 30..8.2008 .  The New India Assurance Company rejected the  application on the ground that the accident occurred on 28.11.2006 and  that the claim intimation and claim application was received in their office only on 4.6.08.  The policy coverage ceased to effect on 31.11.2006  and the claim could not be considered as per the terms and conditions of the Group Personal Accident Policy.   The intimation regarding the accident must be given to the company within one calendar month   The decision of acceptance of claim as per rules is within the jurisdiction of 2^nd opp.party and 1^st opp.party has nothing to do with the procedures in that regard.   The complainant committed inordinate delay in submitting the claim intimation and claim form with all relevant records.

          During the above said period there had been changes in the engagement of insurance company.  At the time of  the occurrence of the accident the insurance coverage was solely vested with New India Assurance Company  from 1.12.2005 to 30.11..2006.  But at the time of claim intimation and claim application through coir society insurance coverage was vested with Oriental Insurance Company [1.12.2007 to 30.11.2008]  Thereafter the insurance coverage was vested with     United  India  Insurance Co. Ltd.,.   The allegation that  the  1^st  opp.party was responsible for  the delay is absolutely wrong.   Even though the claim form was forwarded by the 1^st opp.party to the Insurance company, the 2^nd opp.party rejected the claim.

          The Coir Board worker group personal accident insurance scheme is being  renewed year after year with different insurance companies on the basis of quotation received from Nationalized Insurance Companies.  The lowest quoted Insurance company is selected for an year from December to the month of November next year .

          It is argued by the 1^st opp.party that the 1^st opp.party is not responsible for the lapses from the part of the complainant.

          The main contention of the 2^nd opp.party also is that the claim is highly belated having a delay of one year and 6 months and hence the claim is not payable under the policy conditions..   1^st opp.party initially reported the  claim to M/s. Oriental Insurance Company on 30.10.2007,  even though the accident occurred on 28.11.2006.  Thereafter the insured Coir Board submitted the claim form of M/s. United India Insurance Company to the complainant  and the claim form along with necessary documents duly filled and signed by the complainant was submitted to the United India Insurance Company.  The 1^st opp.party submitted claim form with the 2^ND  opp.party only on 3.6.2008, after 18 months from the date of incident.

          It is argued by the learned counsel for the 2^nd opp.party that as per Ext. D1 policy condition that  the insured, as a contractual obligation to intimate the claim in  writing    before the Insurance company immediately after the occurrence of the accident in any case within one month failed to intimate the incident in proper time and intimated the accident only after 18 months.   The insured had willfully and deliberately violated condition No.1 of the policy.   The eligibility of claim has to be decided by the 2^nd opp.party only on the basis of policy condition.   As the 1^st opp.party violated the above said terms and conditions of the policy the 2^nd opp.party is fully justified in repudiating the claim of the complainant.   In support of his arguments  he had  submitted the decision of NCDRC reported in 2006 CPJ, Volume III page 281 in which it is held that repudiation of the claim by Insurance company due to belated intimation of claim is proper on the basis of specific conditions in the policy.   Copy of the decision is enclosed as Annexure : No.1 We have  a carefully perused Annexure No.1 cited by the 2^nd opp.party.   The facts and circumstances of the reported case  and the instant case is entirely different.   In the reported case. Survey Report was inevitable to ascertain  the cause of loss  and  quantum of damages. In that case the failure of complainant to report the claim resulted in not  being able to ascertain the cause of loss by a surveyor.  Here in this case, as it is admitted that the complainant met with an accident while he was working and had undergone treatment, there is no need of  a Survey Report.  Medical Report prepared by a panel of Doctors also submitted.

          Regarding this aspect we are of the opinion that the decision of NCDRC reported in 1 [2009] CPJ 66 [NC]  is a fit case in which it is held that responsibility of filing claim lay with the Department concerned – Employees to be informed about correct features of the scheme in easy terms:

          Here in this case it is admitted by DW.1 itself that  “A]-IS  Insurance kw_-Ôn¨v t\m¡m³ {]tX-yIw DtZ-ym-K-ØÀ D­v.Allepy bn  \n¶v Coir Board   DtZ-ym-K-ØÀ A]-I-S-¯nÂs¸« sXmgn-em-fnsb kµÀin¨v IrX-y-amb dnt¸mÀ«v \ÂIn-bn-«p­v  The learned counsel for the complainant put  the question that “ Hcp amk-¯n-\Iw application   \ÂI-W-sa¶v Ft¸m-sg-¦nepw And-bn-¨n-«pt­m?”    a. “ tcJm-#qew And-bn-¨n-«n-Ã..  Ah-tcmSv ]dªp society tbmSmWv ]d-ª-Xv.”

From the deposition it is clear that the 1^st opp.party was well aware of the accident. But they had failed to report the same with the 2^nd opp.party.

DW.1 stated in his oral testimony that he is not known  about the  condition that ‘any event of accident would be reported within one month’.  But he  had further admitted that there is condition regarding the time limit in Ext. D2  copy of policy certificate.   Even though he had admitted so the, 1^st opp.party wrongly issued claim form of M/s Oriental Insurance Company and subsequently the claim form of M/s United India Insurance Company to the complainant.  It is also evident that  the features of the scheme was not informed to the complainant or any  coir worker or any  authorities of coir societies..  The learned counsel for the 1^st opp.party argued that the decision of acceptance or rejection of claim as per rules is within the jurisdiction of 2^nd opp.party and 1^st opp.party has nothing to do with the procedure.  In this  regard and it is admitted  by 1^st opp.party that the claim papers were put up by the complainant in a very belated stage and it is submitted that during the period between the occurrence of the incident and claim process there  had been changes in engagement of insurance policy. 

 Even a common could  know that it is impractical to submit all the relevant records of treatment  etc. along with the claim application.  In the  instant case the complainant was hospitalized for 18 days, undergone treatment  for 6 months  and had taken  bed rest for that period.  He had deposed that he was not in a condition to  move out from  his home..  He had deposed while in cross examination that “Aip-]-{Xn-bn \n¶v ho«n h¶v Hcp amk-¯n-\Iw BWv At]£ \ÂIn-b-Xv. Society bpsS Secretary, Radhamany BWv application form sIm­p-h-¶Xv;    Ext.P8 clearly proves  that the Medical certificate  was issued only on 25.9.07 which shows that the complainant is totally and permanently disabled and was completely   and permanently incapacitated  for future service of any kind in the establishment to which he belongs .”

          We have carefully perused Ext. D5 certified copy of the policy.  It is stated as condition No.1 “Upon the happening of any event which may give  rise to a claim under the policy written notice with full particulars must be given to the company immediately. In case of death, written notice  also  of the death must,  unless reasonable cause is shown be so given before  interument  cremation and in any case within one calendar month after the death and in the event of loss of sight  or amputation of limbs written notice there of must also be given within one calendar month after such loss of sight or amputation.  In the instant case, that the claimant sustained permanent and total disability as per Ext.P8 .   As per condition No.1 of the policy written notice with full particulars must given to the company immediately.

          It is also pertinent to point out that it is stated in the addendum of policy itself under the head  line Group Personal Accident Policy “ If at any time during the currency of policy any of the insured person specified in the schedule sustains bodily injury resulting solely and directly from accident caused by external violent and visible means then company shall pay to the insured the sum herein after set forth that is to say [d] If such injury shall as a direct consequence there of immediately permanently, totally and absolutely disable the insured person from engaging in being occupied with or giving attention to any employment or occupations of any  description what so ever then a lump sum equal to hundred percent [100%] of the capital  sum insured stated in the  schedule hereto applicable to such insured person. It is obvious from the above stated conditions that the 2^nd opp.party is liable to pay the sum assured to the complainant.  

      Now the question to be considered is  as to  whether  the 2^nd opp.party is justified  for the  repudiation of claim only on the ground that the claim application is  belated.  Regarding  the aspect, we like to observe that the 2^nd opp.party must adopt a humane approach as the Insurance is a benevolent scheme and as it is the part of a welfare society. Compassionate attitude should be taken by the Insurance companies to settle  genuine claim of victims who deserves to the  compensated .  In the case, no doubt, the complainant met with an accident while he was working .  No dispute  was raised by the opp.parties regarding this aspect.  It is also admitted that he is permanently and totally disabled.   The fact that there was a contract between the 1and 2^nd opp.parties for covering accident risk of coir workers also cannot be denied.   As a victim of the road accident, no doubt the complainant deserves to the compensated by the 2^nd opp.party who had received premium  amount  for covering risk of  coir workers including the complainant for that period.   There is reasonable cause for the delay in submission of claim application before the 2^nd opp.party.   The reason for the delay also is well explained.   In these circumstances, in our point of view the 2^nd opp.party cannot be evaded from their responsibility only on the ground that the submission of claim form is belated.   We are of the opinion that there is deficiency in service from the part of 2^nd opp.party. .

The learned counsel for the  2^nd opp.party further argued  that as per condition No. C[1] of the policy if an injury  shall sole   and direct cause of total and irrecoverable loss of sight  of one eye the complainant is entitled to claim 50% of the  sum insured under the policy  ie. Rs.25,000/-.   The complainant sustained only a trochanteric fracture right  leg as a result of the accident which is not sufficient to make disability as mentioned in the policy.  The disability certificate produced by the complainant is not sufficient to attract  the nature of disability mentioned in  policy  certificate and  nature of disability is not at all sufficient to attract as the nature of permanent disability defined in the policy.

          In support of the argument the learned counsel for the 2^nd opp.party produced the decision rendered by Hon’ble  National  Commission reported in 2007 CPJ Vol.1 at page 230  in which it is held that :as per policy only total and permanent disability  resulting from accident covered.   The learned counsel also produced the decision reported in 1997 CPJ  volume II  page 45, in which  the Hon’ble National Commission held that the constitution of the policy  bond which is the basis of contract of insurance, is a question of law and its true   and correct  interpretation would given jurisdiction to the Forum to the  pronounce upon the deficiency in service, if any.  It is also held that the amputation  of only one hand does not fault within deeming definition constituting permanent disability in terms of policy  bond, so the compensation  under the policy condition  is not payable .  The same position is held by the National Commission in 2006 CPJ page 137.

          We also agree with the argument of the 2^nd opp.party that policy amount is payable only on the basis of policy conditions.  Here in this case category No [d] of the addendum of policy under Group Personal Accident Insurance  is applicable.  It is  seen in Ext.P8 Medical certificate that  the complainant is  totally and  permanently disabled for all works which he was capable of  performing and he is complete by and permanently incapacitated as  for further service of any kind in the establishment to which he belongs in consequence of  road traffic accident.

 It is argued by the learned counsel for 2^nd opp.party that the nature of injury sustained to the complainant is not coming under the purview of the disability mentioned in the policy and hence the complainant is not entitled to get even  Rs.25,000/- ie. 50% of the capital sum insured.

          In our opinion, the injury sustained to the complainant will come under the purview of disability mentioned in the category [d] as it is total and permanent disability which incapacitated the complainant from the occupation in which he  was engaged.  Hence the complainant is entitled to get capital sum  insured Rs.50,000/-.

The learned counsel for the 1^st opp.party would argue that the policy was availed  from New India Assurance Co., M.G. Road Cochin -16, as a group of personal accident Insurance regarding risks covered in favour of   four lakh Coir workers in the name of Coir Board Coir House, M.G. Road, Kochin., Ernakulam.   The complainant was not insured as an independent case and hence no premium amount was collected from the complainant towards policy amount at any point of time during the policy time or before.

          The Coir Board is an institution constituted for the welfare of the Coir workers.   As admitted by the 1^st opp.party the Board had availed the said policy for covering accident risks of 4 lakhs  coir workers.  The complainant also comes under the purview of the scheme only on the basis that he is also a beneficiary  of the scheme only on the consideration that he is a Registered coir worker in the  said coir society who is a wage  earner from that society and had paid  all the  contributions towards the coir welfare scheme etc.  As a beneficiary of the said insurance policy he is included in the scheme.  It is surprising that the Coir Board,  an Institution specifically constituted for the welfare of the coir workers raising  contention challenging competency of the  consumer, a poor coir worker to rise claim of compensation.   The 1^st opp.party have committed defects and mistakes and they had  failed to issue claim form of the actual insurance company which had insured the risks of the workers at that period.   The 1^st opp.party also failed to perform their bounden duty and  to report the accident  to the concerned Insurance Company in time, even though the officials of 1^st opp.party visited the complainant and collected report  twice.   There is deficiency in service from their part also.

          We have carefully considered all the facts, circumstances and entire evidence before us.  On perusal of the entire documents and on the basis of the above discussed points we find that there is deficiency in service from the part of opp.parties.   The points found accordingly.

In the result, the complaint is allowed directing the 2^nd  opp.party to pay insured amount Rs.50,000/- .   The 1^st  opp.party is also directed to pay compensation Rs.10,000/- to the complainant as compensation for mental agony and sufferings .  Both the opp.parties are further directed to pay cost Rs.1500/- to the complainant.

          The order is to be complied with within one month from the date of receipt of the order failing which it will carry 12% interest from the date of this order till the date of payment.

Dated this the 30^th day of November, 2012.

                                                                                    I N D E X:

List of witnesses for the complainant:

PW.1. – P.K. Remonan

List of documents for the complainant

P1. – Letter dated 6.8.2008

P2. – Claim form

P3. – Attested copy of Disharge card

P4. – Certificate dated 17.10.2007

P5. – Treatment certificate 16.12.2007

P6. – Wound ertificate dated 28.11.2006

P7. – FIR

P8. – Certificate from Medical Board

P9. – 2^nd claim form.

List of witnesses for the opp.parties

DW.1. – Ravi

List of documents for the opp.parties

D1. – Letter dated 7.1.2008 by Coir Board, Kalavoor, Alappuzha

D2. – Letter sent by New India Assurance Co.Ltd. to the Coir Board dated 20..6.08

D3. – Letter dated 6.8.2008

D4. – Letter from New India Assurance Company

D5. -  Policy with terms and conditions