Tripura

StateCommission

A/16/2016

Divisional Manager, Oriental Insurance Company Ltd. - Complainant(s)

Versus

Sri. Debasish Das - Opp.Party(s)

Mr. P.S Chakraborty

23 Aug 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No.A/16/2016

 

 

 

1. Divisional Manager,

Oriental Insurance Company Ltd.,

Central Road, Kaman Chowmuhani, Agartala,

P.S. East Agartala, Dist. West Tripura,

                                                            ….    ….    ….    ….    Appellant.

                                                           

 

                   Vs

 

 

1. Sri Debasish Das,

S/o Lt. Dinesh Ch. Das,

Bhattapukur, Near Suktara Club,

P.O.+ P.S. A.D. Nagar,

Dist. West Tripura, Pin-799003.

                                                                      ….    ….    ….    ….    Respondent.

 

 

 

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

 

For the Appellants             :         Mr. Partha Sarathi Chakraborty, Adv.

For the Respondent           :         Mr. Swarup Pandit, Adv. & Mr. Arijit Debnath, Adv.

Date of Hearing       :         30.07.2016 & 05.08.2016.

Date of delivery of Judgment:       23.08.2016.

 

 

 

 

 

J U D G M E N T

 

 

S. Baidya, J,

This appeal filed on 02.05.2016 by the appellant, Oriental Insurance Company Ltd. under section 15 of the Consumer Protection Act, 1986 is directed against the Judgment dated 01.04.2016 passed by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), West Tripura, Agartala, in case No.CC-84/2015 whereby the Ld. District Forum allowed the application filed under section 12 of the Consumer Protection Act and directed the opposite party Oriental Insurance Company Ltd., the appellant herein, to pay compensation amounting to Rs.1,07,000/- (sum assured Rs.1.00 lakh + compensation Rs.5,000/- + litigation cost Rs.2,000/-) minus Rs.52,000/- (already paid) equal to Rs.55,000/- to the petitioner within two months with a further direction to the effect that if it is not paid within the aforesaid period, it will carry interest @9% per annum.

2. The case of the appellant, as narrated in the memo of appeal, in brief, is that the respondent-complainant Debashis Das purchased one Nagrik Suraksha Individual Policy (NSIP) from the appellant Insurance Company vide policy no.322700/48/2014/1211 and the coverage period of the said policy was from 15.11.2013 to 14.11.2014 and the total sum assured was Rs.1.00 lakh only and as per terms and conditions of the policy, the total sum assured was splitted in two parts i.e.80% of the assured sum was for any kind of disability arising out from accident and the remaining 20% of the sum assured was for the expenditure of hospitalization arising out from the said accident.
3. It is alleged that as per disablement certificate dated 16.07.2014 issued by the District Disability Medical Board, Agartala, West Tripura, the respondent Debashis Das was declared with permanent physical disablement of 40% for amputation of thumb and index finger of right hand and thereafter, the respondent vide his letter dated 27.06.2014 informed the appellant regarding the said accident and requested to allow benefits under the said insurance policy.
4. It is also alleged that the appellant Insurance Company took all necessary step to settle the claim of the respondent and allowed 20% of the assured sum of Rs.1.00 lakh against the hospitalization clause amounting to Rs.20,000/- and Rs.32,000/- on account of disablement clause being 40% out of 80% of the sum assured of Rs.1.00 lakh totalling Rs.52,000/- and paid the said amount to the complainant vide Discharge Voucher dated 15.07.2015.
5. It is also alleged that the respondent not being satisfied with such amount lodged the complaint before the Ld. District Forum, West Tripura, Agartala claiming total insured sum on Rs.1.00 lakh vide case no.84/2015. It is also alleged that the Insurance Company contested the claim, but the Ld. District Forum on 01.04.2016 passed the impugned judgment whimsically and arbitrarily, and thereby being highly aggrieved and dissatisfied, the appellant has preferred the instant appeal on the grounds that the Ld. Forum did not apply his mind properly on the terms and conditions of the insurance policy and wrongly arrived at a conclusion and passed the impugned judgment which is liable to be quashed, that the Ld. Forum failed to appreciate the basic fact that there is no deficiency in service on part of the appellant Insurance Company, that the Ld. Forum failed to appreciate the fact that an insurance policy is a contract between the insured and insurer and the Ld. Forum cannot whimsically interpret the terms and conditions of the contract duly accepted and executed by the contracting parties and such kind of whimsical interpretation is not permissible in law, that the Ld. Forum failed to appreciate the fact that the competent authority issued 40% disablement certificate, but the Ld. Forum in a most arbitrary and whimsical manner came to the conclusion that for 40% disablement, the respondent is entitled to get 100% benefit of the policy, that the Ld. Forum erroneously held that the appellant was deficient in service and imposed an amount of Rs.5,000/- as compensation and Rs.2,000/- as cost, that the Ld. Forum failed to consider the fact that after full and final settlement of the claim, the respondent executed and issued discharge receipt accepting the amount without any objection and as such, any further claim is barred by the principle of the law of estoppel and therefore, the claim was not maintainable in the Consumer Forum and hence, the instant appeal has been preferred.

   

Points for Consideration

6. The points for consideration are (i) whether the Ld. District Forum was proper, legal and justified in passing the award by the impugned judgment and (ii) whether the judgment under challenge in this appeal is liable to be set aside as prayed for.

Decision with Reasons     

7. Both the points are taken up together for the sake of convenience and brevity.
8. Considering the pleadings of the parties, evidences, the impugned judgment and the memo of appeal, we are of the view that there involves two vital points, firstly, whether after accepting the full and final settlement amount through the execution of discharge voucher without any protest, the complainant is legally debarred from making any further claim alleging that the amount of compensation so paid to the complainant was insufficient and secondly, the awarding of compensation @100% disablement of the sum assured by the Ld. Forum is legally sustainable or not.
9. The Ld. Counsel for the appellant submitted that the insurance policy of the complainant was for Rs.1.00 lakh out of which 20% was for hospitalization clause and the rest 80% was for personal accident clause. He also submitted that although initially the complainant submitted an insurance policy concerning his motor cycle, but the Insurance Company pointed out that the accident of the complainant caused due to operation of the Ice Crasher Machine did not fall within the ambit of the motor vehicle accident. He also submitted that the Insurance Company pointed out before the Ld. District Forum that the accident of the complainant caused by such Ice Crasher Machine comes within the coverage of the NSIP which was also purchased by the complainant. He also submitted that the ratio of the benefit under the said policy has been clearly mentioned in the policy itself i.e. @20% and 80%. He also submitted that District Disability Medical Board assessed the disability of the complainant to the extent of 40% and relying on that, the Insurance Company paid full amount as admissible under the law taking the disability of the complainant to the extent of 40% as assessed by the District Disability Medical Board.  He also submitted that the complainant accepted the legally admissible amount of Rs.52,000/- without any protest and executed/signed the discharge voucher voluntarily. He also submitted that when the complainant accepted the amount towards full and final settlement of his claim without any protest and executed the discharge voucher voluntarily, he is debarred from lodging any complaint challenging the said payment. He also submitted that the complainant even after execution of the discharge voucher, can lodge complaint before Consumer Fora, if the complainant makes out any case of fraud, undue influence, misrepresentation or the like in the complaint in accepting such amount and execution of discharge voucher. He also submitted that in the instant case, the complainant made out no such case and also adduced no evidence in this regard and therefore, the complainant is legally debarred from raising this point by lodging a complaint due to the application of principle of law of estoppel.
10. The Ld. Counsel for the appellant also submitted that as per schedule of the Workmen’s Compensation Act, 1923, the District Disability Medical Board rightly assessed the disability of the complainant to the extent of 40%, but the Ld. District Forum erroneously awarded compensation holding the disability of the complainant to the extent of 100% which is unsupported by any law of the land. He also submitted that the judgment passed by the Ld. District Forum cannot be sustained legally from any standpoint and as such, it is liable to be set aside and the appeal should be allowed.
11. The Ld. Counsel for the respondent-complainant submitted that in the concerned insurance policy there is nothing to presume that even the amputation of two fingers permanently, the disability of the complainant cannot be treated as 100%. He also submitted that the Ld. District Forum rightly assessed the disability of the complainant to the extent of 100% and passed the award accordingly by the impugned judgment which, being proper, legal and justified, should be upheld and the appeal should be dismissed.   
12. Admittedly, the complainant met an accident on 19.05.2014 at 08.00 am in his own Ice Crasher Machine while operating by him, although it is wrongly mentioned as 08.00 pm in para-2 of the complaint. It is also admitted fact that in the said accident, the thumb and index finger of the right hand of the complainant cut down. It is also admitted fact that the complainant first was treated at I.G.M. Hospital and then referred to AGMC Hospital, Agartala and treated there for one day as indoor patient and then for better treatment, the complainant went to Chennai and was treated there from Chennai Apollo Hospital. It is also admitted fact that the appellant Insurance Company paid Rs.52,000/- to the complainant towards the full and final settlement of the claim. It is also admitted fact that the District Disability Medical Board, Agartala, West Tripura declared the respondent’s (complainant) permanent physical disablement to the extent of 40%. Admittedly, as per insurance policy of the complainant, the total assured sum was at Rs.1.00 lakh only.
13. The complainant Debashis Das as P.W.1 admitted in his cross-examination that he has received Rs.52,000/- as per Nagrik Suraksha Individual Policy and he has not protested while receiving the amount. It has been held by the Hon’ble Apex Court in a case reported in (1999) 6 Supreme Court cases 400 between United India Insurance (appellant) Vs Ajmer Singh Cotton & General Mills and others and also along with another case in between United India Insurance Company Ltd. Vs Asa Singh Cotton Factory and others that if the discharge voucher was executed voluntarily and the complainant had not alleged its execution under fraud, undue influence, misrepresentation or the like, in the absence of pleadings and evidence, the State Commission was justified in dismissing the compliant. The Hon’ble Apex Court also has been pleased to express similar view in another case reported in 2008 CTJ 329 (Supreme Court) (CP). Going through the complaint petition, we find that the complainant never pleaded and made out any case of fraud, undue influence, misrepresentation or the like therein for establishing that the complainant did not accept the full and final settlement amount of Rs.52,000/- voluntarily. That being the position, it is palpable that the complainant accepted Rs.52,000/- towards full and final settlement of his claim arising out of his Ice Crasher Machine accident and voluntarily executed the discharge voucher. So, relying on the principles of law laid down by the Hon’ble Apex Court in two decisions referred to above, we are of the view that the lodging of the complaint by the complainant on 09.10.2015 before the Ld. District Forum, West Tripura, Agartala under section 12 of the C.P. Act which has been registered as CC-84/2015 without any pleadings of fraud, undue influence, misrepresentation or the like and also no evidence, is not legally maintainable being barred by the application of law of estoppel and as such, the complainant is legally debarred from making any further claim alleging that the amount of compensation so paid to the complainant was insufficient. This is the answer in respect of first point.
14. Admittedly, the thumb and index finger of the right hand of the complainant cut down by the Ice Crasher Machine while operating. Going through the impugned judgment, we find that the Ld. District Forum was of the view that the amputation of two fingers as a result of accident has been wrongly assessed by the District Disability Medical Board, Agartala, West Tripura as 40% disablement. It further appears from the last line of para-7 of the impugned judgment that the Ld. Forum could not understand when two fingers were amputated, then how the doctors issued disablement certificate for 40% disablement. It further appears that the Ld. Forum allowed the compensation treating the said amputation of two fingers as 100% disablement. Now, question arises as to whether such assessment arrived at by the Ld. Forum can be sustained from the legal point of view.
15. Under the Workmen’s Compensation Act, 1923, there are two types of permanent disability, one is Permanent Partial Disability and another is Permanent Total Disability. Now, what is Permanent Partial Disability? The Permanent Partial Disability means a part of the employee’s wage earning capacity has been permanently lost and there are two types of permanent partial disability benefits depending on the body part affected and the nature of the permanent disability: schedule loss of use (SLU) and non-schedule. Schedule Loss of Use - A SLU occurs when an employee has permanently lost use of an upper extremity (shoulder, arm, hand, wrist, finger), lower extremity (hip, leg, knee, ankle, foot, toe), or eye-sight or hearing. Non-schedule - Non-schedule is a permanent disability involving a part of the body or condition that is not covered by a Schedule Loss of Use Award.
16. Permanent Total Disability occurs when the employee’s wage earning capacity is permanently and totally lost. In case of permanent total disability, a condition in which an individual is no longer able to work due to injuries. Total Permanent Disability is also called Permanent Total Disability and applies to cases in which the individual may never be able to work again. Permanent Partial Disability means that some form of permanent impairment exists, which makes a worker unable to perform at his or her full capacity. Permanent Partial Disability is different than a total disability, which means a person cannot work at all. In the present case, the complainant lost his thumb and index finger of the right hand. Barring these two fingers, his entire body is able to work for earning. It is not the case that due to such accident and amputation of two fingers, the complainant is no longer in a position to do any sort of work and earn anything. Of course, the complainant on account of amputation of his two fingers is not in a position to earn with his full capacity. If the complainant would have been found incapable of doing any work for earning for the rest of his life, such disability in the eye of law would have been considered as Permanent Total Disability, but the case of the complainant is otherwise. It is palpable that the District Disability Medical Board assessed 40% disability of the complainant due to the amputation of said two fingers as a result of Ice Crasher Machine accident.
17. As per schedule I Sl.No.5 of Part II of the Workmen’s Compensation Act, 1923, loss of thumb is considered as 30% Permanent Partial Disablement. It further appears that as per Sl.No.9 of Part II, the loss of two fingers of one hand is considered as 20% Permanent Partial Disablement and as such, loss of one finger of one hand is to be considered as 10% Permanent Partial Disablement. So, the amputation of thumb and index finger of right hand together are to be considered as 40% Permanent Partial Disablement (30%+10%). Therefore, we find that the District Disability Medical Board rightly assessed the disability of the complainant to the extent of 40% due to the amputation of thumb and index finger of the right hand. For amputation of only two fingers namely thumb and index finger, it cannot be said under any stretch of imagination that the complainant has become a man of permanent total disablement for the whole life debarring from doing any work for earning. In view of the above, and also going through the definition of Permanent Total Disablement and Partial Total Disablement as mentioned above, we are of the view that the findings of the Ld. District Forum treating the complainant with 100% Permanent Total Disability is not sustainable in the eye of law. We are also of the view that the Ld. District Forum wrongly arrived at the conclusion that the complainant suffered 100% permanent disablement and as such, the above erroneous finding is not acceptable in the eye of law. This is the answer for the second point.
18. It transpires from the insurance policy that there are two parts of insurance policy out of which 20% is for hospitalization clause amounting to Rs.20,000/- and the rest is for 80% on the personal accident amounting to Rs.80,000/- totalling Rs.1.00 lakh covered by the insurance policy of the complainant i.e. NSIP. It transpires that the 20% of Rs.1.00 lakh comes to Rs.20,000/- and 40% out of 80% of Rs.1.00 lakh comes to Rs.32,000/- and as such, it comes to Rs.52,000/- in total which is paid by the Insurance Company to the complainant who executed the discharge voucher accepting the amount without any protest and voluntarily. Therefore, we find no deficiency in service on the part of the Insurance Company and as such, the awarding of compensation of Rs.5,000/- for deficiency in service by the Ld. Forum in favour of the complainant in the impugned judgment is not sustainable in law. As there was no deficiency on the part of the Insurance Company, the awarding of Rs.2,000/- as cost of litigation is also not justifiable.
19. It transpires that the legally admissible amount has been paid by the Insurance Company to the complainant. It has also been found that the findings of the Ld. District Forum in arriving at the wrong assessment and calculation and also the compensation so awarded by the impugned judgment are not sustainable in law and as such, the impugned judgment calls for interference in this appeal by this Commission. Accordingly, the impugned judgment is liable to be set aside and the appeal should be allowed. Both the points are, accordingly, disposed of.
20. In the result, the appeal succeeds.
21. The impugned judgment dated 01.04.2016 passed by the Ld. District Forum, West Tripura, Agartala in case no.CC-84/2015 stands set aside.
22. The appellant Oriental Insurance Company Ltd. is directed to deposit Rs.5,000/- as cost of appeal in the Legal Aid Account of this Commission within four weeks from the date of this judgment, failing which the amount will carry interest @9% per annum after the expiry of said four weeks till the payment is made.

               

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura