Tripura

StateCommission

F.A 29/2014

New India Assurance Company Ltd. - Complainant(s)

Versus

Sri. Sankar Deb - Opp.Party(s)

Mr.G.S Das , Mr. M.K Deb

09 Mar 2015

ORDER

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.F.A-29/2014

 

 

New India Assurance Co.Ltd..

Agartala Division, Matri Bari Road,

P.S-West Agartala, West Tripura,

Represented by its Deputy Manager.

                   ….    ….    ….    ….    Appellant.

                   Vs

Sri Sankar Deb,

S/O Sri Narayan Deb,

Resident of Chanpur, P.O-Khayerpur,

P.S-East Agartala, District-West Tripura.

               ….    ….    ….    ….    Respondent.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

               

 

For the Appellant    :      Mr.G.S.Das & Mr.K.Deb,Adv.

          For the respondent   :      Mr.A.nandi,Adv.

                                        

Date of Hearing         :     27.02.2015.

Date of delivery of Judgment  : 09.03.2015.

             

 

 

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 26.09.2014 under Section 15 of the Consumer Protection Act., 1986 by the appellant-New India Assurance Co.Ltd. is directed against the judgment and order dated 06.08.2014 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-116 of 2013 whereby the Ld. District Forum allowed the complaint under Section 12 of the Consumer Protection Act,1986 directing the O.P./appellant-Insurance Company to pay Rs.82,222/- to the complainant as compensation within a period of 30 days from the date of judgment, failing which the amount of compensation shall carry interest @ 9% p.a. from the date of presentation of the complaint before the Forum on 20.12.2013 till the payment is made. It further appears that by the impugned judgment the present appellant/O.P. is further directed to pay a sum of Rs.5,000/- to the complainant for causing mental agony and harassment together with Rs.2,000/- as cost of the litigation.      

2. The case of the appellant as narrated in the memo of appeal, in brief, is that the present respondent being the complainant filed a complaint under Section 12 of the Consumer Protection Act, 1986 against the present appellant-Insurance Company before the Ld. District Forum for getting compensation on account of injuries sustained by him in a motor accident by his own auto-rickshaw bearing No-TR-01B-2903 as owner-cum-driver of the said auto-rickshaw which was insured with the appellant-Insurance Company under coverage of personal accident benefit.                                                 
3. It has also been alleged that on 19.01.2012 at about 8.00 a.m. the said auto-rickshaw was driven by the respondent and when he reached near chanpur bridge on Assam-Agartala road, all on a sudden a wild cow came across the auto-rickshaw and at this the respondent pushed the brake of the said Auto and as a result, it turned turtle resulting to the injuries caused to the respondent.
4. It has also been alleged that the respondent thereafter filed a claim application under Section 166 of the M.V.Act before the Motor Vehicle Claims Tribunal, West Tripura, Agartala vide case No.T.S.(MAC) 232 of 2013 claiming compensation, but Ld. Tribunal dismissed the claim petition with a finding that the remedy of the respondent is to approach the Insurance Company first and if the Insurance Company refused to entertain and settle the claim as per policy, then he may approach either the Consumer Forum or the appropriate court.
5. It has also been alleged that the appellant-Insurance Company by filing written statement pleaded inter alia that the claim of the complainant does not cover as per terms and conditions of the policy and also the complaint petition was barred by limitation as per C.P.Act and the policy coverage for personal accident benefit of the respondent as owner-cum-driver only covers for death, loss of limb and permanent disablement upto certain extent and the insurance coverage was for only Rs.2,00,000/- and as such prayed for rejection of the complaint petition of the complainant i.e. the respondent herein.
6. It has also been alleged that after hearing both sides and considering the evidences, the Ld. District Forum was pleased to pass the impugned judgment dated 06.08.2014 awarding compensation of Rs.82,222/- along with other reliefs. That being aggrieved by and dissatisfied with the impugned judgment, the appellant/O.P.-Insurance Company has preferred the instant appeal assailing the said judgment on the grounds that the Ld. Forum very illegally and arbitrarily awarded compensation beyond the provisions of law as well as terms and conditions of the insurance policy, that the Ld. Forum did not consider the coverage of personal accident benefit wherein the respondent should claim before the appellant-Insurance Company, that the Ld. Forum ought to have considered the terms of personal accident cover policy while awarding the compensation by the impugned judgment, that the Ld. Forum relied on a decision of the Hon’ble Madras High Court regarding the personal injury coverage of the policy and on the basis of the said decision awarded the case, but that decision is not applicable in the case of the present respondent considering the terms and conditions of the insurance policy and as such the award passed by the Ld. Forum is not only illegal, but also beyond the terms and conditions of the insurance policy and therefore, the impugned judgment is liable to be set aside and the complaint petition should also be dismissed and hence, the instant appeal has been preferred.           

Points for consideration.

7.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in awarding the compensation by the impugned judgment and (2) whether the judgment under challenge should be set aside or otherwise.     

                         Decision with Reasons.

8.  Both the points are taken up together for the sake of convenience and brevity.
9. The learned counsel for the appellant-Insurance Company submitted that the insurance policy in respect of the auto-rickshaw of the respondent-complainant bearing No-TR-01B-2903 is a comprehensive package policy and also includes the personal accident benefit as owner-cum-driver of the said vehicle. He also submitted that as per terms and conditions of the said policy the personal accident benefit is available only in four cases as mentioned in the policy. He also submitted that the injuries sustained by the complainant-respondent though grievous being fracture of pubic rami, but do not fall within the four criteria as mentioned in the terms and conditions of the insurance policy. He also submitted that the decision of the Hon’ble Madras High Court as referred in the impugned judgment is not applicable in the instant case as the facts and circumstances of the present case are altogether different from the facts and circumstances of the referred case. He also submitted that as the terms and conditions of the insurance policy do not cover the personal accident benefit to the present respondent, so, the awarding of the compensation by the impugned judgment in favour of the present respondent is not sustainable in law. He then submitted that the Ld. District Forum passed the impugned judgment relying on the decision of the Hon’ble Madras High Court erroneously and as such the impugned judgment cannot be sustained in the eye of law and is liable to be set aside and the appeal should be allowed.
10. On the other hand, the learned counsel for the respondent-Sankar Deb, in the first instance, submitted that the respondent being the complainant filed the case being C.C-116/13 before the Ld. District Forum, West Tripura, Agartala following the direction of the Ld. Judge of the Motor Accident Claims Tribunal given in T.S. (MAC) case No- 232 of 2013. He also submitted that as submitted by the learned counsel for the appellant, the insurance policy in respect of the vehicle of the complainant is a comprehensive package policy, it covers all sorts of benefits to the owner-cum-driver of the vehicle under the coverage of personal accident benefit. He also submitted that the facts and circumstances of the case reported in C.M.A. No-3006 of 2012 between National Insurance Co.Ltd. Vs Krishnan adjudicated by the Hon’ble Madras High Court are similar to the facts and circumstances of the instant case and as such, the Ld. District Forum rightly placed reliance upon the decision of the Hon’ble Madras High Court and passed the impugned judgment properly which being found legal and justified, according to law, should be upheld and the appeal should be dismissed.
11. The learned counsel for the respondent, in the second instance, submitted that the Insurance Company pointed out that only in four cases the Insurance Company is legally bound to pay compensation to the claimant as mentioned in the terms and conditions of the policy. He also submitted that at the time of offering the proposal for insurance in respect of the said auto-rickshaw, there was no such condition appended to the proposal form, but after accepting the proposal, the Insurance Company subsequently made the said insurance policy subject to the 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 also submitted that as those terms and conditions were not included in the proposal form, the inclusion of the above mentioned of four terms and conditions subsequent to the acceptance of the proposal does not bind the insured i.e. policy holder, the respondent herein. He also submitted that the Insurance Company miserably failed to produce the said proposal form to prove otherwise and as such, the insurance policy granted in respect of the auto-rickshaw adding therein the alleged four terms and conditions subsequently by the appellant-Insurance Company is not binding on the respondent.     
12. The learned counsel for the respondent also submitted that the respondent after purchasing the auto-rickshaw insured his vehicle by submission of proposal form covering P.A. for the owner-cum-driver, so that, if any accident happened while driving the auto-rickshaw resulting to the injuries caused to the respondent, he may get compensation from the Insurance Company. He also submitted that at that point of time, he was not informed that the insurance policy under coverage of personal accident benefit will be issued subject to any of the four conditions of the said personal accident benefit policy now as pointed out by the Insurance Company. He also submitted that by way of concealing the said matter to the proposer-respondent at the material point of time, the Insurance Company cannot defraud the policy holder. He then submitted that from the above mentioned two points the judgment awarding compensation to the respondent-complainant by the impugned judgment being based on sound principle of law is liable to be upheld and the appeal should be dismissed.      
13. We have gone through the pleadings of the parties, the evidences both oral and documentary, the impugned judgment and the memo of appeal. Going through the same, we find certain admitted facts. Admittedly, the respondent-complainant got his auto-rickshaw bearing registration No-TR01-B-2903 insured with the O.P.-appellant-New India Assurance Co.Ltd. with the coverage of personal accident benefit. It is also found admitted position that on 19.01.2012 at about 8.00 a.m. the said auto-rickshaw was being driven by him and when he reached near chanpur bridge on Assam-Agartala road, all on a sudden a wild cow came across the auto-rickshaw and to avert the accident, the complainant pushed the brakes of the auto-rickshaw heavily and as a result, the auto-rickshaw turned turtle resulting fracture injuries on his pubic rami and immediately, he was shifted to G.B.P. Hospital, Agartala for treatment and underwent treatment there as in-patient till 07.03.2012. It is also found admitted position that the complainant at first filed the petition under Section 166 of the M.V. Act before the Ld. Member, Motor Accident Claims Tribunal, West Tripura, Agartala claiming compensation of Rs.7,46,000/- for the bodily injury suffered by him due to road traffic accident which was registered as case No.T.S (MAC) 232 of 2013. It is also found admitted position that the M.A.C. Tribunal relying upon the judgment of the Hon’ble Tripura High Court passed in M.A.C. APP-10 of 2002 and also upon the Full Bench decision of the Hon’ble High Court of Himachal Pradesh reported in 2003 A.C.J. 1919 between National Insurance Company Ltd. Vs Soma Devi dismissed the said claim case by a judgment dated 03.09.2013 with the observation that in the circumstances of the case the remedy of the complainant is to approach the Insurance Company first and if the Insurance Company refuses to entertain settle the claim as per the policy, to approach either of the Consumer Forum or the appropriate Civil Court. It is also admitted fact that the present respondent being the complainant approached the District Consumer Forum by filing a complaint under Section 12 of the C.P.Act, 1986. It is also admitted fact that the claim of the complainant in the District Forum was resisted by the present appellant denying the claim of the complainant-respondent and pleaded that as the injuries sustained by the complainant-respondent do not fall within any of the four categories mentioned in the terms of the personal accident cover policy, the complainant-respondent is not entitled to get any compensation under personal accident cover policy. It is also admitted position that the appellant-Insurance Company in the District Forum failed to produce the proposal form for establishing that the said any of the four terms of personal accident cover policy was along with the proposal form submitted by the complainant.
14. No cogent and acceptable explanation has been offered for non-production of the said proposal form containing the terms and conditions of the personal accident cover policy as pointed out in the written statement by the appellant-O.P.-Insurance Company. In that view of the matter, we are in agreement with the submission of the learned counsel for the respondent that actually in the proposal form there was no such condition for granting any insurance policy under the coverage of personal accident policy as the owner-cum-driver in favour of the complainant, the respondent herein. Therefore, it can be said without any hesitation that the Insurance Company has/had no cogent ground to refuse the claim and settle the compensation matter of the complainant.  
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………”.          
18. From the above, it is evident that the owner-cum-driver under Personal Accident Cover Policy is entitled to get benefit for all kinds of injuries sustained by him while driving his vehicle in a road traffic accident. The motor accident of the instant case took place on 19.01.2012. The complaint under Section 12 of the C.P.Act has been filed before the Ld. District Forum on 20.12.2013. Although, in the meantime, a motor accident claim case was filed before the Member, M.A.C. Tribunal, West Tripura, Agartala, but that was dismissed on the ground of maintainability of the case before the M.A.C. Tribunal and thereafter the complaint u/s 12 of the C.P.Act has been filed within two years as provided under Section 24A of the C.P.Act, 1986 and as such the complaint was not barred before the Consumer Fora i.e. the District Forum. At the material point of time the complainant as the owner-cum-driver was driving his auto-rickshaw and when he reached near Chanpur bridge on Assam-Agartala road, but suddenly a wild cow came across the auto-rickshaw, but to avert the accident, he pushed the brakes of the auto-rickshaw heavily and as a result, it turned turtle. So, it is palpable that there was no negligence on the part of the complainant for the said accident. The Consumer Protection Act is also a beneficial legislation. The principle of law, according to us, enunciated by the Hon’ble Madras High Court (Supra) is also applicable in the instant case. 
19. Going through the impugned judgment passed by the Ld. District Forum, we find that the Ld. District Forum elaborately and meticulously considered the cases of the parties including the loss of income sustained by the complainant at least for a period of six months, pain and suffering, the medical expenditure incurred by the complainant, the loss of amenities and enjoyment of life and also the charges of conveyance involved for attending the private physicians required in connection with his medical treatment and relying on the decision of the Hon’ble Madras High Court (Supra) passed the impugned judgment which calls for no interference by this Commission and as such the impugned judgment being proper, legal and justified and based on sound principle of law providing opportunities to the complainant to derive the benefit of beneficial legislation and also finding deficiency in service on the part of the appellant-Insurance Company by way of not accepting and settling the claim of the complainant, is liable to be upheld and the appeal is also liable to be dismissed.     
20. In the result, the appeal fails. The impugned judgment dated 06.08.2014 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C.116 of 2013 is hereby affirmed. There is no order as to costs.

 

  

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura