Date: 25-03-2015
Sri Debasis Bhattacharya
This appeal is directed against the Order dated 11-03-2013 in Case No. 70/2012, passed by the Ld. District Forum, Unit-I, Kolkata, whereby the complaint case has been allowed on contest. Being aggrieved by and/or dissatisfied with the same, the OP thereof has preferred this appeal.
Case of the Complainant, briefly stated, is that he is holding an Accident Protection Plan Policy being no. 93696038/00002, issued by the OP. On 10-06-2009, he suffered serious injuries in a road accident and was immediately rushed to the chamber of a local Neurologist, who advised some pathological tests and also prescribed some medicines. A GD was lodged by his wife to this effect with Baranagar P.S. vide GDE No. 938 dated 11-06-2009. On being informed about such accident of the Complainant, the OP sent a set of claim forms to the Complainant and the same was submitted to the office of the OP on 14-10-2009 along with all requisite papers. Vide its letter dated 13-03-2011, the OP asked the Complainant to provide income proof document. After receiving copy of the IT Return, the OP vide its letter dated 31-03-2011 directed him to show cause as to why the policy should not be treated as void because of mismatch in actual income and declared income. Although he discussed the matter with officials of the OP, they refused to entertain his claim. In such circumstances, finding no other alternative, he filed the instant complaint case to get insurance benefit and some other relief.
OP contested the case by filing W.V. whereby it is stated that though the Complainant has tried to make out a case that in case of total disablement due to accident, the OP was liable to pay a sum of Rs. 19,687.50 per week for 52 weeks, but as per terms and conditions of the policy, it should be Rs. 18,750/- per week. Further, liability of the OP towards broken bones was also Rs. 50,000/- and not Rs. 52,500/- as claimed by the Complainant. The Complainant has not submitted any cogent document in support of his accidental injury. In order to receive benefit, temporary total disablement is required to be sustained by the beneficiary, but the Complainant has not produced any proof in this regard. While obtaining the policy, the Complainant declared his annual income as Rs. 7,00,000/-, but from the IT return, it revealed that his annual income was only Rs. 2,63,985/-. Such declaration of income by the proposer is very much relevant for this type of policy as based upon such declaration, the insurance was provided by the OP to the Complainant. Therefore, following terms and conditions of the policy wordings of the concerned policy of insurance, the policy of insurance itself became void and so under a void contract, the Complainant is not entitled to any claim and compensation.
Issue to be considered in this appeal is whether the impugned order is a viable and/or tenable one in legal terms, or not.
Decision with reasons
Ld. Advocate for the Appellant has submitted that while filling up the proposal form, the Respondent declared his annual income as Rs. 7,00,000/- and based on such declaration, out of good faith, the instant policy was issued to him. However, from the copy of ITR, it revealed that his actual income was only Rs. 2,63,985/-. Therefore, it is clearly proved that the Respondent submitted false declaration before the Appellant at the time of inception of the policy and therefore, following policy conditions itself, the said policy of insurance became void ab initio and a void policy, the Respondent did not have any right and/or locus standi to claim any compensation. Besides, it is a condition precedent that in order to get insurance benefit under the policy, one has to suffer from disablement which can be considered as total disablement. But, the Respondent failed to produce any proof to show that he fits into the bill. The Respondent himself submitted CT scan reports before the Ld. District Forum, but the same did not reveal any detectable intracranial injury and the main injuries were small ischemic lesion in left parietal white matter, partially healed fracture of right Zygomatic arch with deviated nasal septum. Such injuries, under no circumstances, can be considered as permanent total disablement. Further, the Respondent himself admitted that he was prescribed some medicines by the attending physician. Therefore, such alleged injuries, under no circumstances, can be considered to be permanent total disablement. The Respondent could not produce any disability certificate from any competent authority. In the absence of such disability certificate, the Ld. District Forum was not in a position to assess the disability, if any, at all suffered by the Respondent. Still, it directed the Appellant to pay the entire sum claimed by the Respondent. The Ld. District Forum further did not consider the fact that the Respondent tried to make out a case that in case of temporary total disablement, the Appellant is liable to pay a sum of Rs. 19,687.50 per week for 52 weeks during such period of temporary total disablement, whereas as per policy effective on date of loss provided for only Rs. 18,750/- per week upto a maximum period of 52 weeks. Despite this, the Ld. District Forum directed the Appellant to pay a sum of Rs. 13,20,000/-. As per claim documents, the Respondent had suffered only a fracture of Zyogomatic arch which falls as ‘all other fractures’ under ‘Fracture of Rib or Ribs, Cheekbone, Coccyx, Upper Jaw, Nose, Toe and toes, finger or fingers’ as per schedule for which 4% of the sum insured of benefit of ‘broken bones’ is applicable. Hence, an amount of Rs. 2,000/- would be payable under the head of ‘Broken Bones’. Further, as per the claim documents, it appears that the Respondent was advised rest on each consulting dates from 20-06-2009 to 20-09-2009, which comes to 19 weeks. After deducting one week as per terms and conditions of the policy, total admissible amount would be Rs. 18,750/- per week for 18 weeks which amounts to Rs. 3,37,500/-. Thus, liability of the Insurer, subject to policy conditions, is limited to Rs. 3,37,500/- provided there was no violation of any terms and conditions of the policy. The Ld. District Forum did not consider the fact that the Appellant on genuine and bona fide grounds repudiated the claim of the Respondent and unreasonably imposed a cost of Rs. 50,000/-. The said order of the Ld. District Forum is bad in law and need to be set aside. In support of his contention, the Ld. Advocate has referred to four decisions of the Hon’ble Supreme Court reported in AIR 1999 SC 3252, I (2009) CPJ 6 (SC), AIR 2010 SC 1704, and 2012 (1) T.A.C. 12 (S.C.), three decisions of the Hon’ble National Commission, reported in I (2007) CPJ 230 (NC), 2008 (3) CPR 214 (NC) and in R.P. No. 1077/2012, a decision of the Hon’ble High Court, Calcutta, reported in 2005 (1) T.A.C. 66 (Cal.), and a decision of this Commission in FA No. 398/2012.
The Ld. Advocate for the Respondent, on the other hand, has submitted that he lodged a claim with the Insurance Company against a road accident which rendered him completely bedridden for a prolonged period of time. However, instead of discharging its contractual obligation under the policy in question, the Appellant resorted to rhetoric to deny his legitimate claim. The instant policy is meant for indemnification of peril arising out of accident. Although he submitted all relevant medical papers to substantiate his claim, the Appellant, after much hair-splitting, citing a total non-issue, which cannot be bracketed as material breach of policy term by any stretch of imagination, refused to settle his claim. Against this backdrop, the Ld. District Forum very rightly decreed the case in his favour, which be upheld for ends of justice.
At the very outset, we would like to put on record our utter dismay over the casual approach of both parties in pursuing the instant case. Incomplete document, needless to say, is a great hindrance in the way of proper adjudication of a case. We have noticed severe shortcomings on the part of both sides in this regard, e.g., it is claimed by the Respondent that he was advised complete bed rest from 10-06-2009 to 05-07-2010 by the attending physicians in phases, but all such necessary papers have not been placed before us. Again, although the Respondent claimed that he was covered under policy no. 93696038/00002, no copy of the same has been placed on record. Therefore, it left us with no option to ascertain when policy no. 93696038/00001 was renewed w.e.f. 24-01-2010, whether there was any changes in the compensation figure or not. Similarly, the Appellant has not submitted the copy of their alleged repudiation letter dated 31-03-2011. Anyway, we proceed with the case on the basis of available documents on record.
According to the Appellant, they repudiated the claim of the Respondent as he resorted to falsehood about his annual income while filling up the proposal form. They have done so when not only there was hardly any co-relation between one’s income vis-à-vis limit of insurance coverage, but also they did not have any contradictory evidence in respect of the actual income of the Respondent as on the date of filling up the proposal form.
Truth to tell, the Appellant could not show us any such stipulation being embedded in the proposal form that coverage of insurance was linked to the income of the proposer. Rather, contrary to their claim, it is very much apparent from the said proposal form that it was purely premium based, e.g., for an insurance coverage of Rs. 15 lakh, Rs. Rs. 25 lakh, Rs. 35 lakh, Rs. 50 lakh and Rs. 75 lakh under the Self-plan, the proposal form prescribes annual premiums of Rs. 2,895/-, Rs. 4,345/-, Rs. 5,895/-, Rs. 8,470/-, and Rs. 12,585/- respectively.
Besides, what is worth noting here is that the proposal form was signed by the Respondent on 11-01-2008 (i.e., financial year 2007-2008), whereas the Appellant had at their disposal the IT return of the Respondent for the financial year 2008-2009. How one can figure out the actual income of a person for a particular period based on the IT return of another financial year is beyond one’s comprehension, especially in case of a businessman, involved in construction business. Ups and down in business fortune is part and parcel of any commercial activity.
Therefore, we do not find any justification whatsoever behind outright repudiation of the Respondent’s claim by the Appellant.
An Insurer can in no way share the physical pain of a victim, but they can certainly empathize with his sufferings. Could there be any worse exhibition of lack of indifference to the plight of a victim than what is shown by the Appellant in the instant case? This is not a one off case, but a common sight nowadays. The reaction of the Appellant is reflective of what actually is rotting in our insurance sector. All this needs to be said, especially as there is nothing to the deeds and conduct of the Appellant to suggest that they really walk the talk about what they preach.
We cannot overlook the fact that there was lukewarm response from the side of the Appellant to process the claim of the Respondent over a long period of time till the IRDA stepped in following a complaint lodged by the Respondent. The unseemly haste with which the Appellant disposed of the matter, following intervention of the IRDA, no doubt indicate an element of panic on the part of the Appellant. It is another matter that such regulatory intervention did not alter the misfortune of the Respondent. There was absolutely no valid reason behind non-settlement of the Respondent’s claim.
As per the policy, ‘Temporary Total Disablement’ means disablement which temporarily and entirely prevents an Insured person from engaging in or giving attention to the Insured Person’s usual occupation.
As observed hereinbefore, the Respondent has not placed on record sufficient cogent documents to establish that he was advised complete bed rest from 10-06-2009 to 05-07-2010. Similarly, we find gross laches on the part of the Appellant. As per Clause 2 of Sec. 15 of the policy terms and conditions, in the event of a dispute arising as to when Temporary Total Disablement caused, the date shall be finally determined by a physician commissioned by the Company. The said physician is also supposed to certify the date upon which the Insured Person recovered. The Appellant should have acted with alacrity to dispel their doubt about the bona fide of the claim of the Respondent in this regard. The Appellant, however, for the reasons best known to them, maintained a studied silence as to why no such physician was commissioned by them, especially when a specific request to this effect was made by the Ld. Legal Counsel of the Respondent. However, at the same time, we do disapprove the manner in which the Ld. District Forum has doled out largesse in favour of the Respondent without proper application of its judicial mind.
In any case, the Appellant has more or less admitted the fact that the Respondent was advised bed rest during the period from 20-06-2009 to 20-09-2009. Further, from the Attending Physician’s Statement, issued by Dr. Manoj Sharma on 14-10-2009, it transpires that the Respondent became disabled from 10-06-2009 and at the time of issuing such statement on 14-10-2009, he was totally clueless as to the probable date when the Insured would be able to return to work – a clear pointer of the fact that as on that date, any possibility that the Respondent would be back in the thick of action was farfetched. Again, from the Discharge Certificate of Binayak Healthworld Multi-specialty Hospital dated 19-02-2010, it transpires that the Respondent was advised absolute bed rest for two months. So, it can reasonably be inferred from the available documents that the Respondent was confined to bed from 10-06-2009 to 18-04-2010, i.e., 312 days or 44 weeks 04 days. In our considered opinion, therefore, the Respondent would be entitled to get Rs. 18,750/- x 44 weeks = Rs. 8,25,000/- on account of his Temporary Total Disablement.
Seemingly, the Appellant is not averse to pay Rs. 2,000/- as insurance benefit towards the partially healed fracture of right zygomatic arch. As the Respondent has not placed on record any medical paper to show that he sustained any other bone fracture apart from the above, we allow Rs. 2,000/- on this account to the Respondent.
As regards the issue raised by the Appellant about non-availability of disability certificate from the competent authority, it is to be stated that there was no question of obtaining such certificate since the Appellant could not show us any such stipulation in the policy document to qualify for indemnification in case of Temporary Total Disablement, one requires any such document. Moreover, in terms of Clause No. 4 of the ‘General Claims Provisions’, the Company has every right to examine the Insured person whose bodily injury is the basis of a claim. Therefore if they so desired, they could have made necessary arrangements in this regard.
Therefore, the liability of the Appellant, in our considered opinion, in respect of the body injury suffered by the Respondent stands at Rs. 8,25,000/- + Rs. 4,000/- = Rs. 8,29,000/-.
In the instant case, the claim was lodged with the Insurer on 14-10-2009, but the Appellant claimed to have repudiated the claim on 31-03-2011, that too after the intervention of the IRDA authority. Sitting tight over a claim for over 17 months is tantamount to deficiency in service.
In the result, the instant appeal stands allowed in part with the modifications as appended hereunder.
Hence,
ORDERED
that the appeal be and the same is allowed in part against the Respondent, but without any order as to costs. The Appellant, within 40 days from the date of this order, shall pay a sum of Rs. 8,27,000/- to the Respondent as insurance benefit together with compensation of Rs. 20,000/- and litigation cost of Rs. 5,000/-, i.d., the Appellant shall be liable to pay interest @ 9% p.a. over Rs. 8,27,000/- from the date of filing of the instant case before the Ld. District Forum till full and final payment. The impugned order is, thus, modified.
