BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 25/2004 Filed on 15.01.2004

Dated : 15.10.2009

Complainant:

N. Nandakumar, “Thinkal”, Mannammoola, Peroorkkada P.O, Thiruvananthapuram.

Opposite parties:

1. Senior Branch Manager, National Insurance Company Ltd., Soundariya Building, II Floor, M.G. Road, Thiruvananthapuram.

    

(By adv. M. Nizamudeen)

2. The Company Secretary, M/s Hindustan Latex Ltd., Head Office, Poojappura, Thiruvananthapuram.

(By adv. J. R. Padmakumar)

This O.P having been heard on 15.09.2009, the Forum on 15.10.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant had taken a personal accident Insurance policy through his employer M/s Hindustan Latex Ltd. from the 1^st opposite party in the year 2002, that he met with an accident on 19.07.2002 by slipping and falling in the bathroom of his house by which serious damage was caused to his spinal cord and was taken for treatment to General Hospital, Thiruvananthapuram vide O.P Ticket No. 124225 dated 19.07.2002 by his relatives, that he had undergone treatment for considerably long period of 137 days, that he was totally disabled to attend any work including his duties in the office till 02.12.2002, that he was on loss of pay for the period from 19.07.2002 to 02.12.2002 and that he was eligible to get the benefit of insurance policy. On 03.12.2002 a claim was forwarded to 1^st opposite party through 2^nd opposite party with all medical certificates and treatment records. On 30.07.2003 1^st opposite party had forwarded a payment voucher for Rs. 12,250/- to the complainant. The 1^st opposite party had taken 8 months to settle the claim. Complainant was put to suffer mental agony, loss of reputation and earnings as his promotion was withheld due to non-regularisation of the disability period of 137 days from 19.07.2002 to 02.12.2002. The other employees of his cadre were given promotion. Complainant's mother was seriously ill and passed away on 26.09.2003 and he could not file a complaint immediately after recording protest against the low amount of payment by the 1^st opposite party. Hence this complaint to direct the opposite parties to pay a sum of Rs. 23,500/- to the complainant being the balance amount payable to him with 18% interest and compensation of Rs. 1 lakh.

Opposite party filed version contending that complaint is not maintainable either in law or on facts, that on perusal of the claim and records submitted by the complainant it was found that complainant produced a medical certificate for leave from 19.07.2002 and extended further three times for a total period of 137 days, that complainant had undergone only outpatient treatment at General Hospital, that complainant had been put under traction on 04.08.2002 and the same has been removed on 05.09.2002 with the observation of the attending Medical Officer that complainant's condition was “better”. However complainant had produced medical certificate for leave for a period of 137 days. The weekly benefits envisaged under the policy is only for the period of temporary total disablement as certified by a qualified medical officer following accident by visible means and not for period of medical leave. Complainant's condition was better on 05.09.2002. Therefore opposite party has considered the period of 19.07.2002 to 05.09.2002 i.e, 49 days as the period of temporary total disability. The sum insured as per the policy was Rs. 1,75,000/- and compensation payable for one week as per the conditions of the policy is 1% of the capital sum insured (i.e; Rs. 1,750/- for one week). Since the period of temporary total disability of the complainant was 49 days, the amount payable to the complainant was Rs. 12,250/-. The said amount was offered in full and final settlement of the claim payable to the complainant. 1^st opposite party has not committed any delay in settling the claim. Hence opposite parties prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the complainant is entitled to get the balance amount of Rs. 23,500/- from the 1^st opposite party?

2. Whether there has been deficiency in service on the part of opposite parties?

3. Whether the complainant is entitled to get compensation and costs? If so, at what amount?

In support of the complaint, complainant has filed proof affidavit of himself as PW2 and Exts. P1 to P12 were marked. Witness has been examined as PW1. In rebuttal, opposite parties have filed counter affidavits and Exts. D1 & D2 were marked.

Points (i) to (iii):- Admittedly, complainant had taken a personal Accident Insurance policy through his employer M/s Hindustan Latex Limited from the 1^st opposite party in the year 2002. It has been the case of the complainant that he met with an accident on 19.07.2002, by slipping and falling in the bathroom of his house by which serious damage was caused to his spinal cord and was taken for treatment to the General Hospital, Thiruvananthapuram vide O.P ticket 124225 dated 19.07.2002 by his relatives, that he had to undergo treatment for 137 days. It has also been the case of the complainant that he was totally disabled to attend any work including his duties in the office till 02.12.2002, that he was on loss of pay for the period from 19.07.2002 to 02.12.2002, that he was eligible to get the benefits of insurance policy, that on 03.12.2002 claim was forwarded to 1^st opposite party through the 2^nd opposite party with all the medical certificates and treatment records, and that on 30.07.2003 1^st opposite party had forwarded a payment voucher for Rs. 12,250/- to the complainant. It has also been the case of the complainant that 1^st opposite party had taken almost 8 months to settle the claim and that too on a low amount, and that 2^nd opposite party withheld complainant's promotion because of non-payment of insurance amount by the 1^st opposite party for the whole period. It is submitted by the 1^st opposite party that on perusal of the claim and records submitted by the complainant, it was found that complainant produced a medical certificate for leave from 19.07.2002, extended further three times for a total period of 137 days, whereas the complainant had undergone only out-patient treatment at General Hospital, that he had been put under traction on 04.08.2002 and the same has been removed on 05.09.2002 with the observation of the attending medical officer, the complainant's condition was better. It is further submitted by the opposite party, that the relevant clause in the policy states as follows: “If such injury shall be sole and direct cause of temporary total disablement than so long as the insured person shall be totally disabled from engaging in any employment or occupation of any discretion whatsoever, a sum at the rate of 1% of the capital sum insured stated in the schedule as existing at the inception of the policy hereto per week, but in case not exceeding Rs. 3,000/- per week in all under all personal accident policies covering such insured person”. Ext. P1 is the copy of the O.P ticket dated 19.07.2002. Ext. P2 is the copy of the letter informing the 2^nd opposite party about the accident and treatment. Ext. P3 is the copy of the fitness certificate dated 03.12.2002 issued by Dr. Mahesh Kumar to complainant. Ext. P4 is the copy of the Brochure relating to personal Accident Insurance. Ext. P5 is the copy of the letter dated 03.12.2002 addressed to 1^st opposite party by the 2^nd opposite party. As per Ext. P5 complainant reported duty on 03.12.2002 after 137 days absence from 19.07.2002 to 02.12.2002 due to an accident while on duty. Ext. P6 is the copy of the medical certificate issued by Dr. Mahesh Kumar. Ext. P7 is the copy of the letter dated 18.06.2003 issued by the Deputy Manager to 1^st opposite party informing that Sri. N. Nandakumar (employee of the company) was not attending the duties from 19.07.2002 to 02.12.2002(137 days) due to an accident he met with on 19.07.2002 and that he had joined the duties with effect from 03.12.2002. Ext. P8 is the copy of the letter addressed to 1^st opposite party by the complainant. Ext. P9 is the copy of the payment voucher dated 30.07.2003 for Rs. 12,250/- . Ext. P10 is the copy of the letter addressed to the 1^st opposite party by the complainant, claiming the entire medical amount from the 1^st opposite party. Ext. P12 is the copy of the letter dated 10.09.2003 issued by the 1^st opposite party to complainant informing him about the inability to further consider claim as he has not produced authentic evidence of his disablement during the leave period, or Disability Certificate from a competent qualified medical officer. Dr. Mahesh Kumar has been examined as PW1. In his chief examination, on perusing Ext. P1, PW1 has admitted that he had treated the complainant, that on 19.07.2002 traction was advised for a period of 4 months in addition to medicines, that complainant then came in the O.P on 04.08.2002, 05.09.2002 and 10.11.2002. It is further deposed by PW1 that “05.09.2002-ല്‍ 'better' എന്ന് എഴുതി വേദന കുറച്ച് കുറഞ്ഞതു കൊണ്ടായിരിക്കും. O.P Ticket പ്രകാരം rest at house ആണ് അതിനാല്‍ office-ല്‍ പോയിരിക്കാന്‍ സാദ്ധ്യതയില്ല. PW1 has admitted Ext. P3 fitness certificate dated 03.12.2002 and Ext. P6 series and has deposed that the said documents were issued only after the examination of the complainant. In his cross examination PW1 has deposed that O.P യിലാണ് treat ചെയ്തത്. He was not admitted. Serious injuries ഇല്ലാത്തതു കൊണ്ടല്ലേ admit ചെയ്യാത്തത് (Q) അല്ല (A) എന്‍റെ hospital-ല്‍ inpatient ആയി treat ചെയ്യാന്‍ സൗകര്യം ഉണ്ട്. Injuries serious ആയിരുന്നുവെങ്കില്‍ MCH-ലേയ്ക്ക് refer ചെയ്യുമായിരുന്നോ (Q) ഇല്ല. I am more experienced in this field. When asked about skin traction PW1 has said "കാലില്‍ ' plaster ഇട്ടിരുന്നു എന്നാണ്. അത് remove ചെയ്യുക എന്നാല്‍ plaster മാറ്റുക എന്നാണ്. It has been the very case of the 1^st opposite party that as per conditions of Personal Accident Policy the complainant is entitled to get T.T.D (Temporary Total Disability) either for the period of hospitalization or until the date of removal of plaster, that in this case 1^st opposite party submits that traction was removed after 1 month, that his condition was better on 05.09.2002 and that 49 days from 19.07.2002 is considered as the period of temporary total disability. It is further submitted by the opposite party that the sum insured as per the policy was Rs. 1,75,000/- and compensation payable for one week as per conditions of policy is 1% of the capital insured, that is Rs. 1,750/- for one week, on the basis of which, the amount payable to complainant was Rs. 12,250/- (that is Rs. 1750/- x 7 weeks). As per Ext.D2 Personal Accident Insurance policy (Group), Sub clause (f) reads as under: “If such injury shall be the sole and direct cause of temporary total disablement then so long as the insured person shall be totally disabled from engaging in any employment or occupation of any description whatsoever, a sum at the rate of one per cent of the capital sum insured stated the schedule as existing at the inception of the policy hereto per week, but in any case not exceeding Rs. 3,000/- per week in all under all personal accident policies covering such insured person”. There is nothing to show that complainant is entitled to TTD either for the period of hospitalization or until the date of removal of plaster. It is submitted by the 2^nd opposite party, employer of the complainant, that complainant met with the accident and was on leave from 19.07.2002 to 02.12.2002 for 137 days which is seen corroborated by Ext. P3, P5 to P7 and deposition of PW1 doctor. Further, it is required to mention that immediately after the removal of plaster, the injured/patient may not be able to do the physical work, due to muscle stiffness, and that it will take some more time to come to normal. It is further to be noted that complainant reported duty on 03.12.2002 after 137 days absence from 19.07.2002 due to accident while on duty. Although, PW1 doctor has been vehemently cross examined by the opposite party, nothing was made out from him to undermine the credibility of the witness. In view of the foregoing discussions and in the light of evidence available on records, we are of the considered opinion that complainant has proved his case, and that complainant is entitled for compensation at the rate of Rs. 1,750/- per week, for 137 days from 19.07.2002 to 02.12.2002. Since an amount of Rs. 12,250/- had already been sanctioned for 49 days (7 weeks) opposite party is bound to pay the balance amount at the rate of Rs. 1,750/- per week for 88 days to the complainant.

In the result, complaint is allowed. Opposite party shall pay the complainant a sum of Rs. 22,000/- with interest at the rate of 9% from the date of the complaint(i.e; from 15.01.2004) till realization. There will be no compensation in facts and circumstances of the case. Both parties are left to bear and suffer their costs.

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 15^th day of October 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

O.P. No. 25/2004

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Nandakumar

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of O.P ticket dated 19.07.2002.

P2 - Photocopy of letter dated 24.07.2002 issued by the

complainant to 2^nd opposite party.

P3 - Photocopy of fitness certificate dated 03.12.2002.

P4 - Photocopy of brochure of Personal Accident Insurance

Policy.

P5 - Photocopy of letter dated 03.12.2002 issued by 2^nd opposite

party.

P6 - Photocopy of medical certificate ( 5 Nos.)

P7 - Photocopy of letter dated 18.06.2003 of 2^nd opposite party

P8 - Photocopy of letter dated 19.06.2003 of complainant.

P9 - Photocopy of voucher dated 30.07.2003.

P10 - Photocopy of letter addressed to the Divisional Manager.

P11 - Photocopy of letter addressed to the Regional Manager.

P12 - Photocopy of letter dated 10.09.2003 of 1^st opposite party.

III OPPOSITE PARTY'S WITNESS :

DW1 - Mallika Ganesan

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Original O.P Ticket dated 19.07.2002

V COURT EXHIBIT:

CW1 - Dr. S. Mahesh Kumar

PRESIDENT