Tripura

StateCommission

A/27/2017

SBI General Insurance Company Ltd. - Complainant(s)

Versus

Sri. Jayanta Majumder. - Opp.Party(s)

Mr. Karnajit De.

26 Jul 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.27.2017

 

 

 

1. S.B.I. General Insurance Co. Ltd.,
   “Natraj” by Rustomjee, 101, Junction of M.V. Road &

Western Express Highway, Andheri (East),

                                                            ….    ….    ….    ….    Appellant/Opposite party.

 

                   Vs

 

1. Sri Jayanta Majumdar,
   S/o Sri Parimal Chandra Majumdar,

16 Office Lane, Agartala, P.O. Agartala,
West Tripura.

                                                            ….    ….    ….    ….    Respondent/Complainant.

 

 

 

 

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Ch. Sharma,

Member,

State Commission, Tripura.

 

 

 

 

For the Appellant:                                           Mr. Karnajit De, Adv.

For the Respondent:                                 Mr. Uttam Kumar Majumder, Adv.

Date of Hearing & Delivery of Judgment:   26.07.2017.

 

J U D G M E N T [O R A L]

 

U.B. Saha,J,

The instant appeal is filed by the appellant, S.B.I. General Insurance Co. Ltd. (hereinafter referred to as opposite party/Insurance Company) under Section 15 of the Consumer Protection Act, 1986 against the judgment dated 22.02.2017 passed by the Ld. District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala  in Case No. C.C. 57 of 2016 whereby and whereunder the Ld. District Forum allowed the treatment cost of the respondent (hereinafter referred to as complainant) amounting to Rs.85,000/- and also to pay Rs.10,000/- for deficiency of service as well as Rs.5,000/- for cost of litigation.  In total Rs.1 lac. Opposite party was also directed to pay the aforesaid amount of Rs.1 lac within two months, if not paid, it will carry interest @ 9% annum.   

2. Heard Mr. Karnajit De, Ld. Counsel appearing for the appellant-opposite party as well as Mr. Uttam Kumar Majumder, Ld. Counsel appearing for the respondent-complainant.
3. As agreed to by the Ld. Counsel for the appellant-opposite party and the respondent- complainant, the matter is taken up for final disposal at this stage. 
4. Facts needed to be discussed are as follows:-

The complainant is an owner of the vehicle No.TR-01-AC-0492. The opposite party is the insurer of the said vehicle. The vehicle was duly insured with all coverage vide Policy No.0000000000561609 dated 26.11.2012 and the said policy was valid up to 25.11.2012 to 24.11.2013. The complainant met with an accident on 23.06.2013 at Choudhury Mills, near Milan Sangha, Agartala while he was returning home by driving his vehicle and got injuries on his persons. The vehicle also got damaged by the accident. After the accident, he informed the matter to the opposite party and also lodged information before the West Agartala Police Station. Accordingly, a police case was registered being West Agartala P.S. Case No.178 of 2013. It is also stated in the complaint petition that he suffered fracture injuries in the right leg and other parts of the body for which he was shifted to Medical College and GBP Hospital, Agartala. Thereafter, he was treated in the Bhaumik Nursing Home at Agartala. In total he had to spend Rs.2,50,000/- because he was treated outside. Complainant claimed the amount from the opposite party-Insurance Company as the alleged accident was occurred within the validity of the Insurance Policy, but the opposite party-Insurance Company refused to pay the same. Being aggrieved by the action of the opposite party-Insurance Company, complainant filed a complaint petition under Section 12 of the Consumer Protection Act, 1986 before the Ld. District Forum for redress.

5. Opposite party S.B.I. General Insurance Co. Ltd. appeared and filed its written statement denying the claim. It is stated that the claim is barred by limitation and disability certificate and other papers not submitted. Thus, the complainant is not entitled to get any benefit as per the terms and conditions of the Insurance Policy.
6. The complainant has submitted the FIR, Final Report, Registration of the Vehicle, Insurance Policy Certificate, Driving license along with Admit card and Aadhaar card as well as Discharge certificate, Cash Memo, Money Receipt, Copy of Tax Token and Doctors prescription/slip. Complainant has also submitted his statement on affidavit and examined himself as P.W.1.
7. Opposite party Insurance Company produced the related policy details and the corresponding letters in support of their contention.
8. The Ld. District Forum after considering the evidence on record and the terms of the policy allowed the petition filed by the complainant as stated (supra) relying upon a decision of the Madras High Court in C.M.A. No. 3006 of 2012 (National Insurance Co. Ltd. Vs. Krishnan) wherein, the Hon’ble Madras High Court considered the Paragraph-106 of C.M.A. No.2468 of 2012 of that High Court which is as follows:-

“106. The contention that the Insurance Company need not pay any compensation to any grievous injury or permanent disablement, arising out of the injuries, except for Items 1 to 4, specified in the Personal Accident Cover Policy, cannot be accepted, as the contract of insurance, viz., Personal Accident Cover Policy for the owner-cum-driver, is also a Motor Transport Policy, under IMT 15, recognised by the Motor Tariff Committee. As stated supra, when the policies issued under the Insurance Act, are recognised by the Committee, subject to the regulations and instructions, issued by the Committee, it is not open to the Insurance Companies to disown, their liability to pay compensation, in respect of other bodily injuries, wherein, scales of compensation are not specifically provided. There is no negative covenant in the policy, that no compensation would be paid, in respect of other bodily injuries. It is well settled that the Motor Vehicles Act is a beneficial legislation. Reference can be made to a decision of the Apex Court in Smt. Rita Devi and others v. New India Assurance Co. Ltd., reported in AIR 2000 SC 1930, wherein, in construing the provisions of the Act, the Supreme Court held that it is to advance the beneficial purpose underlying the enactment in preference to a construction, which tends to deviate the purpose.” Ultimately, the Hon’ble Madras High Court dismissed the appeal preferred by the Insurance Company and directed to deposit the awarded amount with accrued interest and costs, to the credit of M.C.O.P.459 of 2008, on the file of the Motor Accidents Claims Tribunal (Sub Court), Sankari, within a period of six weeks from the date of receipt of a copy of the order.

9. Being aggrieved by the impugned judgment dated 22.02.2017 of the Ld. District Forum in Case No. C.C. 57 of 2016, the opposite party Insurance Company preferred the instant appeal.
10. Mr. De, Ld. Counsel appearing for the opposite party, Insurance Company while urging for setting aside the impugned judgment would contend that the Ld. District Forum has failed to consider the terms and conditions of the policy. According to him, as per the terms and conditions of the policy, the Personal Accident Benefit is available only in four conditions namely, (i) death, (ii) loss of two limbs or sight of two eyes or one limb and sight of one eye, (iii) loss of one limb or sight of one eye, (iv) permanent total disablement from the injuries other than named above. He has also submitted that the Ld. District Forum passed the impugned judgment relying on the decision of the Hon’ble Madras High Court in National Insurance Co. Ltd. Vs Krishnan (supra) erroneously and as such, rewrites the terms and conditions of the insurance policy. He has also submitted that the Hon’ble Apex Court in various decisions held that no Court has the power to re-write the terms and conditions of the policy as the same have to be construed as it is and there is no scope of adding or subtracting something. Therefore, according to him, the impugned judgment is liable to be set aside and the appeal should be allowed.

1. Mr. Majumder, Ld. Counsel appearing for the respondent-complainant while supporting the impugned judgment has submitted that the case in hand is fully covered by the judgment of the Hon’ble Madras High Court in Krishnan (supra) as well as the judgments of this Commission in Appeal Case No. F.A. 29 of 2014 (New India Assurance Co. Ltd. Vs Sri Sankar Deb) and in Appeal Case No.A/24/2016 (The United India Insurance Company Limited Vs Sri Goutam Ghosh) wherein, this Commission upheld the judgment of the District Forum in a similar nature of case and dismissed the appeal filed by the appellant Insurance Company in the aforesaid two appeals relying upon the judgment of the National Insurance Co. Ltd. Vs Krishnan (supra). He has relied upon the Paragraph- 15,16 and 17 of the judgment of this Commission in New India Assurance Co. Ltd. Vs Sri Sankar Deb (supra) which are as follows:-

“15. Assuming that all four terms of personal accident cover policy granted in favour of the complainant were included in the proposal form submitted by the complainant for insuring his auto-rickshaw with the appellant-Insurance Company, in that regard, we find a decision of the Hon’ble Madras High Court being C.M.A No-3006 of 2012 between the National Insurance Co. Ltd. Vs. Krishnan delivered on 15.03.2013 wherefrom, we find that the Hon’ble Madras High Court has been pleased to hold at page 21 therein that ‘The contention that the Insurance Company need not pay any compensation to any grievous injury or permanent disablement, arising out of the injuries, except for Items 1 to 4, specified in the Personal Accident Cover Policy, cannot be accepted, as the contract of insurance, viz., Personal Accident Cover Policy for the owner-cum-driver, is also a Motor Transport Policy, under IMT 15, recognized by the Motor Tariff Committee. As stated Supra, when the policies issued under the Insurance Act, are recognized by the Committee, subject to the regulations and instructions issued by the committee, it is not open to the Insurance Companies to disown, their liability to pay compensation, in respect of other bodily injuries, wherein, scales of compensation are not specifically provided. There is no negative covenant in the policy, that no compensation would be paid, in respect of other bodily injuries. It is well settled that the Motor Vehicles Act is a beneficial legislation. Reference can be made to a decision of the Apex Court in Smt. Rita Devi and others V. New India Assurance Co.Ltd., reported in AIR 2000 SC 1930, wherein, in construing the provisions of the Act, the Supreme Court held that it is to advance the beneficial purpose underlying the enactment in preference to a construction, which tends to deviate the purpose. In Shivaji Dayanu Patil and another V. Vatchala Utham More reported in 1991 A.C.J. 177, the Apex Court reiterated that in the matter of interpretation of the beneficial legislation, the approach of the courts should be to advance the beneficent purpose.’

16. The Hon’ble Madras High Court was also pleased to hold at page-22 of the said judgment that ‘Such a narrow construction of the terms of the policy, proposed by the Insurance Company, would run contrary to the purpose of the beneficial legislation. For the above said reasons, this Court is not inclined to deny the benefit of Personal Accident Cover to the respondent/claimant, who is the owner-cum-driver of the vehicle involved in the accident. In the case on hand, according to the respondent, on 31.10.2005, when he was riding his Motorcycle, bearing Registration No-TN-40-Y-4883, on Bhavani Sagar to Puliyampatti Road, near Thoppampalayam, due to heavy rain, there was stagnation of water in the middle of the road, and though he was riding his motorcycle, at a moderate speed, while applying the brakes, the vehicle skidded, he fell down, along with the pillion and sustained injuries. When the claims Tribunal has specifically found that there was no negligence or willful neglect or want of care on the part of the respondent/claimant, in the accident, he cannot be said to be a tort-feasor. The judgments relied on, by the learned counsel for the Insurance Company would not lend any support to the contentions of the Company.’

17. The Hon’ble Madras High Court relying on a number of decisions of the Hon’ble Supreme Court mentioned in the said judgment has also been pleased to hold at page-22 of the said judgment, “In the light of the above decisions and discussion, this Court is of the view that the benefit under a Personal Accident Cover Policy, should be extended to all kinds of injuries and that depending upon the nature of injuries, disablement, expenditure incurred under various heads, the injured is entitled to make a claim for compensation. In the case of four kinds of injury, specified under the policy, the scale of compensation is 100% or 50%, as the case may be, depending upon the nature of injuries, mentioned under Items 1 to 4………”. ”

2. We have gone through the impugned judgment as well as the judgment of this Commission in Appeal Case No.FA/29/2014, wherein, this Commission discussed in details regarding the judgment of Krishnan (supra) and also considered the points raised by the Insurance Company in the instant appeal. We have also gone through the judgment of this Commission in Appeal Case No.A/24/2016 wherein this Commission held that the Appeal/24/2016 is fully covered by the judgment of this Commission in FA/29/2014 and the Ld. District Forum did not commit any error in the impugned judgment while allowing the petition. We have also gone through the judgment of Hon’ble Madras High Court in Krishnan (supra). The Hon’ble Madras High Court considered various judgment of the Hon’ble Apex Court and in Paragraph-107 & 108 of the Krishnan (supra) held as follows:-

“107. In Shivaji Dayanu Patil and another v. Vatchala Utham More reported in 1991 ACJ 177, the Apex Court reiterated that in the matter of interpretation of the beneficial legislation, the approach of the Courts should be to advance the beneficent purpose.

108. At Paragraph 56 of the judgment in Deepal Girishbhai Soni v. United India Insurance Company Ltd., reported in 2004 (5) SCC 385, the Supreme Court held that, "It is now well-settled that for the purpose of interpretation of statute, same is to be read in its entirety. The purport and object of the Act must be given its full effect. [See High Court of Gujarat & Anr. Vs. Gujarat Kishan Mazdoor Panchayat & Ors. [JT 2003 (3) SC 50], Indian Handicrafts Emporium and Others vs. Union of India and Others [(2003) 7 SCC 589], Ameer Trading Corporation Ltd. vs. Shapoorji Data Processing Ltd. [JT 2003 (9) SC 109 = 2003 (9) SCALE 713 and Ashok Leyland Vs. State of Tamil Nadu and Anr. [2004 (1) SCALE 224]. The object underlying the statute is required to be given effect to by applying the principles of purposive construction.”

Keeping in view the judgment in Krishnan (supra) and the judgments of this Commission in Appeal Case No. F.A. 29 of 2014 (New India Assurance Co. Ltd. Vs Sri Sankar Deb) and in Appeal Case No.A/24/2016 (The United India Insurance Company Limited Vs Sri Goutam Ghosh), we are of the considered opinion that the Ld. District Forum did not commit any error in the impugned judgment. Regarding question of limitation also, the Ld. District Forum noted, inter alia, that the incident occurred on 23.06.2013 and the matter was investigated by the police and the charge sheet submitted on 31.08.2013. After filing of the charge sheet, petitioner placed the claim before the opposite party, which was repudiated by the opposite party and the cause of action for filing the complaint petition arose only from the date of final repudiation not from the date of accident. Therefore, according to us, the Ld. District Forum rightly held that the complaint petition was filed within the limitation period as prescribed in the Consumer Protection Act.

In the result, the appeal is dismissed being devoid of merit. The impugned judgment dated 22.02.2017 of the Ld. District Forum is hereby affirmed. No order as to costs.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura