Per Justice Mr.S.B.Mhase, Hon’ble President.

           Heard both sides. This appeal can be disposed of finally at the stage of admission itself. This appeal takes an exception to an order passed by the District Consumer Disputes Redressal forum, Thane, in Complaint Case No.20/2009. The said complaint was decided on 20/03/2010. The complaint was partly allowed and appellant was directed to pay an amount of `1,42,857/- to the complainant towards remaining Insurance claim along with 9% interest p.a. with effect from 27/07/2007. The appellants are further directed to pay `5000/- to the complainant towards mental harassment and `1000/- towards cost of the litigation. The appellants are further directed to pay the amount jointly and severally within a period of 30 days, other wise they are directed to pay additional penal interest @ 3% p.a. This order of the District Forum is under challenged.

          The admitted fats are as under :-   

          The respondent/original complainant has taken a personal accident Insurance Policy from the appellants and the period of the said policy was 12/10/2006 to 11/10/2007. By the said policy, the sum insured was `5 lakh and the premium was `1390/- p.a.  On 29/06/2007 while the complainant  was going for taking lunch at his home by scooter, he met with an accident from unknown motorbike rider and suffered serious injuries to his right shoulder. The respondent/complainant was admitted in the National Hospital, Ashok Nagar, Bhiwandi and he was treated in the said hospital. Thereafter, he was under treatment at Aditi Hospital, Mumbai. Complainant/respondent claims that, due to the accidental injury he was incapacitated for work for a period of 35 weeks and therefore Insurance Company shall pay compensation for the period of 35 weeks as per the insurance policy clause No.4. The only dispute which requires consideration is that, as to whether insurer was incapacitated for works for a period of 35 weeks and as to whether the amount is to be calculated at the rate of `5000/- per week. 

          Mr.Singh who appears for the appellant submits that, the claim made out by the respondent that, he was incapacitated for work for a period of 35 weeks is incorrect. He submits that, from the Doctor’s certificate on record or prescription it can not be inferred that the complainant/respondent was not able to work for 35 weeks. However, he fairly submits that, it appears that, the complainant was incapacitated for a period of 10 weeks and, therefore, he is entitled to get compensation of 10 weeks. Accordingly, the insurance company should have fixed the compensation. However, the insurance company while settling the claim has paid amount of 8 weeks. He fairly states that, two weeks additional compensation will be paid. 

          The clause No.4 of the insurance company pointed out as follows.

          “ Temporary Total Disability : If you suffer accidental bodily injury during the policy period which completely prevents you from engaging in your occupation, there we will make a weekly payment to you of the lower of 1% of the sum assured shown under the schedule heading comprehensive and Rs.5,000/-

(a)                 We will make the first payment when you satisfy us that the accidental bodily injury has completely prevented you from engaging in your occupation.

(b)                 We will stop ;making payments when we are satisfied that you can engage in your occupation again, or when we have made payments for a miximum period of 100 weeks from the date you met with the accidental bodily injury, whichever is earlier.”

               Therefore on going through this clause, the maximum compensation is payable for 100 weeks, if injury incapacitated the insured to work beyond 100 weeks. If the incapacity is less than 100 weeks then whatever the weeks person has been incapacitated he would get compensation as per the rule. However, in order to get this compensation, the person has to satisfy the insurance company that, he is/was under incapacity to work for a particular week. It is further to be noted that, the compensation which is payable is lower of 1% of the sum shown under the heading comprehensive and `5000/-. Therefore, lowest 1% of the amount insured + `5000/- is weekly compensation which is available under this clause.

                The learned counsel for appellant made efforts to submit before us, that `5000/- the lowest amount is payable. He tried to impress upon us that the word “and” which is conjunction shall be interpreted as “and/or”.  However, the word “and” can be interpreted as “or” as conjunction only when absurd or perverse interpretation follows by grammatical interpretation. This clause is in respect of compensation to be paid for the period for which person insured is/was incapacitated. Therefore, lower of 1% of the sum assured is one of the component of the compensation, and `5000/- is constant component if compensation under clause 4. Therefore both these amounts together are weekly compensation which can be paid up to 100 weeks. We find this interpretation is a proper interpretation and therefore the submission made by Adv.Singh that “and” should be interpreted as “and or” is not acceptable to us. We reject said submission. There is one more reason to reject this submission. Here the appellant is an insurance company and they themselves drafted the insurance policy/clause. They are aware of the consequences of said drafting of a clause. Therefore, we find that, both these amounts are payable to the respondent.        

The next question which is required to be considered is that, compensation is to be paid for how many weeks. The District Consumer Forum has paid compensation of 35 weeks. However, our attention has been drawn to the certificate on record. The first certificate issued by the Aditi Hospital, Mumbai. As claim form of complainant/respondent shows that, he had taken the treatment on 02/7/2007 and he was fit to resume his duty on 15/09/2007 and on this basis complainant made claim of compensation to the insurance company. It appears that, by certificate dt.29/2/2008 it is shown that, the complainant was taking treatment as an outdoor patient from 02/07/2007 to 29/02/2008 and, thus, he claimed the compensation of 35 weeks. It is interesting to note that, since beginning that is on 02/07/2007 the complainant is a outdoor patient. Apart from that, there is a report of his both shoulders given by Radiologist dt.02/08/2007 i.e. report of date of accident. The said report states that, “no evidence of fracture or dislocation is seen in the bones of both shoulders or joints and scapula. But reactive solerusis seen at the grester with small cyst underneath it. The gleno-humeral joint shows normal ailgement.”  What is important to note is that, due to the accident of complainant there was no fracture, dislocation of the shoulders, even no damage to the soft tissue, therefore only crape bandage was put and no further treatment was given to the respondent. Therefore the subsequent certificate appears to be not correct. It shows that, the complainant was treated up to 29/02/2008. Apart from that, the insurance company in its reply continuously demanded from the respondent/complainant to produce documents that he was incapacitated to work for 35 weeks. It was reported to them that, the complainant was taking the physiotherapist treatment. The respondent/complainant has not filed any affidavit of the physiotherapy before the District Consumer Forum. It was further necessary for the complainant/respondent, in view of the challenging affidavit on record, to explain the discrepancy between two certificates by the Aditi Hospital. What is important to note is that, the patient was never indoor patient in the hospital from the date of accident. He was outdoor patient. He was given two separate certificates. It is for them to explain why there is a discrepancy. The learned counsel for the respondent tried to make submission before us as no such progress before the District Forum. The objection of the learned counsel that, the appellant has never taken objection from this certificate, therefore he has not filed the affidavit of the doctor. Therefore, the submission made by the learned counsel for respondent in respect of the discrepancies and further counter that both the certificates relied upon that is issued by Doctor. In those days, the doctors have issued certificate without going into details and without knowing the persons also. This is only for to earn money only. Some times they issue false certificate. Therefore the certificate discrepancy, the parties must have to file affidavit of the doctor. But no affords are taken by the complainant. At this stage, the learned counsel for the respondent submits that, he is ready to file affidavit of doctor and opportunity should be given. This can not be done. This is the first appeal. The opportunity to lead appropriate evidence has been taken by the respondent/complainant and having failed to furnish the documents we reject the request of the learned counsel to file particular i.e. to file affidavit of the doctor. But we find that, Aditi Hospital has given certificate that respondent was incapacitated for period of 10 weeks. Since the insurance company accepted the claim of 8 weeks, we direct the insurance company to make further payment of two weeks. Order granting compensation of `35,000/- and further interest over that is not justified in law. Mental agony is not justifiable in law. Therefore, we allow the appeal partly. We direct to calculate the total compensation as per clause No.4 shall be paid for a period of 10 weeks while making last payment. The amount may be adjusted and the remaining amount may be paid to the complainant within a period of one month. Therefore, we hereby direct the insurance company to pay an amount of `1,16,592/-to  the respondent. Hence the order:-

                                     -:ORDER:-

1)     Appeal No.634/2010 is dismissed.

2) We hereby direct the insurance company to pay an amount of 

     `1,16,592/- within one month from the date of receipt of this order

     to  the respondent towards insurance claim.

 3) Copies of the order be furnished to the parties.