IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 15th day of July, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 119/2018 (filed on 14-06-2018)
Petitioner : P.P. Thomas,
Puthiyadath,
Uzhavoor,
Monippally, Kottayam
(Adv. Ajaykumar K.G. and
Adv. Chandramohan)
Vs.
Opposite Party : (1) Manager
Star Health & Allied Insurance
Company Ltd.
New Tank Street, Vellavoor,
Kotta, High Road,
Nagambakkam
Chennai – 600034
(2) Branch Manager,
Branch Office, X/107-A (2) BCG
Residency Tower, Sea Airport
Road, Kakkanad, Cochin – 17.
(For op 1 and 2, Adv. Avaneesh V.N.)
(3) T.K. Unni Krishnan,
Agent, Medicare,
Thachakuzhiyil (H)
Mevalloor P.O. Velloor village,
Vaikom, Kottayam.
(Adv. Leena Krishnan)
O R D E R
Sri. Manulal V.S. President
Case of the complainant is as follows:
The complainant had availed an accident care policy from the first opposite party through the third opposite party. The complainant had availed he said policy on 16-6-2011 and renewed the policy without any interruption. He had paid Rs.4,674/- towards the premium for the policy year 2013-2014. The said policy provides coverage against accidental death, permanent disability and temporary total disablement of six insured persons. The total sum assured was 52 lakhs for the six insured persons. Thus the complainant have a coverage to the tune of Rs.9,50,000/-.
On 16-12- 2013, complainant had fell down at his house and sustained injuries to his right eye. He had admitted to the Indira Gandhi Co-operative Hospital. Thereafter, on 9-1-2014 he had shifted to Giridhar Eye Hospital and treated there. He had undergone a surgery. Thereafter complainant was under the treatment till 2014. He was under follow up till October 2016. During October 2016, complainant was found to have right eye detachment and confirmed that he has lost the vision of the right eye.
It is averred in the complaint that as per the policy the complainant is entitled for the 50% of the sum assured. Though the complainant lodged a claim for an amount of Rs.4.75 lakhs the same was repudiated by the opposite party. The illegal repudiation of the genuine claim of the complainant amounts to deficiency in service on the part of the opposite party. Hence this complainant is filed by the complainant praying for an order to direct the opposite party to pay Rs.4.75 lakhs along with compensation Rs.50,000/-.
Upon notice the opposite parties appeared before the commission and filed version.
Version of the first and second opposite parties as follows:
The complaint is not maintainable. No cause of action either in whole or in part has taken place within the jurisdiction of this commission. This commission have no territorial jurisdiction to entertain the complaint.
It is submitted in the version that proposer Medicare Trust, had taken a group accident policy from the second opposite party for the employees of the Medicare Trust and the period commencing from 29-6-2012 to 28-6-2013 vide policy no. p/181200/02/2013/000350 and renewed up to 27-6-2014. The complainant had opted Table-II cover for a sum insured of Rs.9,50,000/-. It covers only accidental death and permanent disablement. As per the terms and conditions of the policy, the disablement occurs within the 12 months from the date of accident and the disablement is confirmed and claimed for prior to the expiry of a period of 60 days since occurrence of the disablement is only covered.
It is submitted in the version that due to the fall at home the complainant went to Giridhar Eye Institute on 16-12-2013 for the treatment of Open Globe Injury –right eye and underwent Primary Scleral tear repair + anterior chamber wash right eye and thereafter discharged on 17-12-2013. After that the complainant was again admitted at Giridhar eye institute on 9-1-2014 for the treatment of open globe injury –Zone1 Right eye, total Rhematogenous retinal detachment with giant retinal tear with retinal incarceration Right eye and complainant was discharged on 11-2-2014. It is further submitted in the version that the complainant had sustained injury for the right eye on 16-12-2013 and he was treated with silicon oil injection on 9-4-2014 and he is under follow up till 31-10-2014 . After that the complainant was again reviewed for the same ailment only on 3-10-2014 ie. after the gap of 2 years . The complainant had sustained permanent disablement after 2 years and 10 months from the date of accident. Since the disablement occurred not within the 12 calendar months from the date of the accident, the opposite parties are not liable to compensate the complainant.
The claim was submitted only on 10-6-2017. Moreover, in the year 2013-2014(28-6-2013 to 27-6-2018), the complainant has not renewed the policy and at the time of disability the complainant was not having valid policy with the opposite parties. The complainant is not a consumer under consumer protection act. There is no deficiency in service or unfair trade practice on the part of the opposite parties.
Third opposite party filed version contending as follows:
The third opposite party is only an authorized agent of the first opposite party. Complainant has taken the policy through the third opposite party. The incident for claim is known to the third opposite party but the details is not known. The third opposite party is only an agent and not liable to pay any compensation severally.
Evidence of this case consists of deposition of Pw1 and exhibit A1 to A7 from the side of the complainant. Padma Prabha who is the Legal Manager of the opposite party company filed proof affidavit and marked exhibit B1 to B8 from the side of the opposite parties.
On evaluation of complaint version and evidence on record we would like to consider the following points.
- Whether the complaint is maintainable or not?
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
- If so what are the reliefs and costs?
Point number 1 to 3 together
There is no dispute on the fact that the complainant had availed an accident care policy-group from the second opposite party with the period commencing from 29-6-2012 to 28-6-2013 vide policy no. p/181200/02/2013/000350 and renewed up to 27-6-2014.Exhibit A1 is the policy for the period of 29-6-2012 to 28-6-2013. On perusal of exhibit A1 we can see that the complainant is the first insured in the group policy and the sum assured was Rs.9,50,000/- Exhibit A2 is the policy schedule for the period of 28-6-2013 to 27-6-2014.
It is contended by the opposite parties that the complaint is not maintainable on the ground that no cause of action either in whole or in part has taken place within the jurisdiction of this commission. On perusal of exhibit A1 and A2 we can see that the policy was issued by the second opposite party who was conducting their business at Kakkanadu, Cohin. The first opposite party is situated at Chennai. The third opposite party who is admittedly an authorized agent of the first opposite party admits that the complainant availed the policy from the first and second opposite parties by availing the service of the third opposite party. The third opposite party who is the agent of the first and second opposite party is residing Mevallore, Vaikom which is within the jurisdiction of the this Commission.
Pw1 who is the complainant would depose before the commission that he had remitted the premium to the second opposite party through his account which was collected by the third opposite party. Therefore we are of the opinion that this commission has the jurisdiction to entertain the complaint.
Pw1 deposed in the affidavit that on 16-12-2013 he fell down at home and sustained severe injury on his right eye. According to Pw1 he went to Indiragandhi Co-operative hospital and from there he was shifted to Giridhar eye hospital on 9-01-2014. It is proved by exhibit A6 that the complainant was admitted in Giridhar eye hospital on 9-1-2014 and treated there as in inpatient till 11-1-2014. It is proved by exhibit A6 which is the ophthalmic report issued by Dr. Dhilesh P.C. of Giridhar eye clinic that the complainant was reported to their hospital initially on 16-12-2013 with history of trauma to the right eye.
He underwent sclera tear repair in the right eye on the same day itself, as per Ext.A5. It is further proved by exhibit A6 that he had undergone the Vitrectomy+per floro carbon liquid +endo laser+ fludair exchange +silicon oil injection right eye on 9-1-2014.
On perusal of exhibit A5 we can see that the complainant was under regular follow up till 31-10-2014. It is proved by exhibit A5 that on examination on 3-10-2016 complainant was found to have corneal opacity in the right eye. It is certified by the doctor vide exhibit A4, that he has 40% permanent visual disability (category-1).
On examination of Exhibit A3 and B4 terms and condition of the policy it can be seen that scope of cover is enumerated in Section II under the heading SCOPE OF COVER as follows:
The Company hereby agrees, subject to the terms, conditions and exclusions herein contained or otherwise expressed herein, to pay to the Insured person or his nominees or his legal heirs, a sum as compensation for any loss occurring during the Period of Insurance as described under different sections hereunder and as specified in the Schedule to the Policy,
Table-A – ACCIDENTAL DEATH
If at any time during the Period of Insurance, the Insured Person shall sustain any bodily injury resulting solely and directly from Accident caused by external, violent and visible means and such accident causes death of the Insured Person within 12 Calendar months from the date of Accident, then the Company will pay an amount as compensation 100% of the Capital Sum Insured.
Table-B –ACCIDENTAL DEATH AND PERMANENT DISABLEMENT
If the Insured Person meets with an Accident, which leads to disablement or subsequent death, the Company will provide insurance coverage to the Insured in the following manner:
1. Accidental Death of Insured Person: If following an Accident that causes death of the Insured Person within 12 Calendar months from the date of Accident, then the Company will pay an amount as compensation 100% of the Capital Sum Insured.
2. Permanent disablement of the Insured Person:
If following an Accident which caused permanent impairment of the Insured’s mental or physical capabilities, then the Company will pay the benefits as provided in the Table of Benefits B1 or Table of Benefits B2 mentioned herein, depending upon the degree of disablement provided that:
a) The disablement occurs within 12 Calendar months from the date of the Accident.
b) The disablement is confirmed and claimed for, prior to the expiry of a period of 60 days since occurrence of the disablement.
c) Where a covered Accident results in Permanent Disablement falling under Table of benefits B1 (Permanent Total Disablement) and under Table of benefits B2 (Permanent Partial Disablement) then the higher percentage of the sum insured will be paid.
Therefore the opposite party is bound to provide coverage of insurance policy and to pay if the disablement occurs within 12 months from the date of the accident and the disablement is confirmed and claimed for prior to the expiry of a period of 60 days since the occurrence of the disablement.
Here in case on hand on perusal of exhibit a4 to 6 we can see that the complainant was under regular check up till 31-10-2014.
There is no evidence to prove that the any disablement developed. During the period 16-12-2013 to 31-10-2014. It is further proved by exhibit A4 and A5 that after 31-10-2014 the complainant underwent the treatment only on 3-10-2016 and he was found to have corneal opacity in the right eye. On evaluation of the available evidence we are of the opinion that the permanent disability in the right eye of the complainant is occurred after 2 years from 16-12-2013 ie the date of accident.
We already found that the opposite party is bound to provide coverage of insurance policy and to pay only if the disablement occurs within 12 months from the date of the accident.
The Hon’ble Supreme Court in a recent Judgment dtd.6th October 2021 i.e. in “SGS India Limited v/s Dolphin International Limited”, categorically held that the onus of proof that there was deficiency in service is on the complainant.
Here in this case as discussed above we are of the opinion that the complainant has failed to prove any deficiency in service on the part of the opposite party. Thus the complaint is dismissed
Pronounced in the Open Commission on this the 15th day of July, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Pw1 – P.P. Thomas
Exhibits marked from the side of complainant
A1 – Accident care policy schedule – group issued by opposite party
A2– Accident care policy schedule – group issued by opposite party
A3 – Accident care individual insurance policy issued by opposite party
A4 – Certificate dtd.05-10-17 from Dr.Dhileesh P.C.
A5 – Copy of ophthalmic report from Dr.Dhileesh P.C.
A6- Copy of discharge summary from Giridhar Eye institute
A7 –Copy of repudiation claim letter dtd.15-12-17 from opposite party
Exhibits marked from the side of opposite party
B1 – Copy of ophthalmic report dtd.13-04-17
B2 – Copy of accident care policy schedule by opposite party
B3 – Copy of accident care policy schedule – group
B4 - Accident care individual insurance policy issued by opposite party
B5 - Certificate dtd.05-10-17 from Dr.Dhileesh P.C.
B6 –Copy of discharge summary dtd.17-12-13from Giridhar Eye Institute
B7 - Copy of discharge summary dtd.11-01-14 from Giridhar Eye Institute
B8 - Copy of repudiation claim letter dtd.15-12-17 from opposite party
By Order
Assistant Registrar
