Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the C.P Act, 1986 has been filed challenging the judgment and order dated 22.01.2016 passed by the Ld. District Forum, Uttar Dinajpur at Raiganj in the Complaint Case No. CC/43/2014 allowing the complaint on contest in part against the Respondent/OP No. 1 and ex-parte against the Respondent/OP Nos. 2 and 3 with the directions upon the Respondent/OP No. 1 to pay Rs. 1,39,200/- to the Appellant/Complainant under the policy. It was further directed to pay compensation of Rs.10,00,000/- towards deficiency in rendering services to the Appellant/Complainant generating in him mental pain and agony and putting him as well in physical harassment. A direction towards payment of litigation cost of Rs. 3,000/- was also there in the impugned judgment and order.
All the ordered amounts were directed to be paid within one month from the date of the impugned judgment and order, failing which, as directed, the awarded amount would carry interest @ 9% p.a. till full realization.
A counter Appeal against same impugned judgment and order was filed by the Respondent/OP Nos. 1 and 2 of the instant Appeal against the Appellant/Complainant of the instant Appeal under Appeal No. A/362/2016. Said Appeal was given an analogous hearing and should be governed by the instant judgment and order.
Briefly stated, the facts relevant with the instant Appeal was that the Appellant/Complainant who was having an insurance policy with Respondent/OP Company of an assured sum of Rs. 10,00,000/- with validity period with w.e.f. 19.08.2010 to 18.08.2013, fell down accidentally from the stairs while coming down from the roof of his house on 28.05.2012 and sustained several injuries. He was taken first to the nearby doctor then to Kisanganj wherefrom he was referred to Siliguri where he was taken first to Anandolok Hospital and then to Siliguri Medical College and Hospital on 29.05.2012. He was ultimately discharged from doctor Moloy’s Hospital on 18.06.2012. The victim was diagnosed to have suffered from “Comprehension, fracture and Anterior wedging of L/2 with right side intra Parenchyma bleed in front temporal lobe”
The Appellant/Complainant had to incur an expenditure of Rs.1,35,100/- for his treatment. The bills justifying the expenditure were stated to have been furnished in original to the Respondent/OP Company. The Appellant/Complainant had him examined by the competent authority for issuing the disability certificate and got a certificate from the said authority showing therein a 60% disability, physical or mental. The Appellant/Complainant, considering the facts that the accidental fall had made him permanently disabled, filed a Complaint Case before the Ld. District Forum praying for compensation for permanent disability and normal functional physical capacity impairment for an amount of Rs. 9,60,000/-, compensation for harassment and mental agony for an amount of Rs. 20,000/- litigation cost of Rs. 10,000/-, etc.
Being aggrieved with impugned judgment and order originating from the said Complaint Case because of the alleged inadequacy of the amount of compensation directed to be paid to him by the Respondent/OP Company in the said order, the Appellant/Complainant chose to prefer the instant Appeal.
Heard Ld. Advocates appearing on behalf of both sides.
The Ld. Advocate appearing on behalf of the Appellant/Complainant emphasized upon payment of compensation proportionate to permanent disability, allegedly developed in his client due to the subject accident. He impressed upon the Bench the contents at para 10 of the W.V filed by the Respondent/OP Company, running page 19, admitting the fact that the Appellant/Complainant was an Insurance policy holder of the company under policy No. 0G-11-2414-6401-00000317 with effect from 19.08.2010 to 18.08.2013.
The Ld. Advocate drew the notice of the Bench to running page 54, being, as alleged, the permanent disability certificate issued by the competent authority in the name of the Appellant/Complainant under No. 217 dated 18.08.2012 and submitted that the certificate indicated 60% permanent physical impairment/mental disability which, in fact, was contrary to the observation of the Ld. District Forum in the impugned judgment and order, inner page 3, wherein the Ld. District Forum, refusing to accept the permanent disability of the victim, rejected the prayer for sanctioning the proportionate claim as envisaged in the policy.
As he continued, the repudiation was made on the ground that the victim was under the influence of alcohol when the accident took place. The doctor’s certificate at running pages 13 and 14 indicated under point No. 7, running page 13, towards the victim’s remaining under influence of alcohol at the time of the accident, did not have enough credibility as the signature of the issuing authority was seen to be varying at running page 13 and running page 14. This, as he continued, left reasons for suspicion that the running page 13 which contained the vital information of the patient’s inebriation was manipulated to the favour of the Respondent/OP Company.
In fact, no enquiry was made to testify that he had actually spent Rs.3,83,744/- and submitted all the documents in original to the insurance company. Since the documents were already submitted in original, the same could not be submitted on subsequent demand which the Ld. District Forum failed to appreciate.
He went on to cite two judgments. One in RP No. 2856 of 2009 reported in II (2018) CPJ (NC) [New India Assurance Co. Ltd.—Vs—Surendra Kumar Nanda] wherein the Hon’ble Commission upheld the order of the State Commission which was passed dismissing the order of the Ld. District Forum which had passed the dismissal order observing the claim was inadmissible as the disease was caused due to consumption of alcohol. The State Commission allowed the Appeal with the observation that nothing was mentioned in Clause 4 of the policy relating to inclusion of the treatment expenditure of any disease caused by use of alcohol should not be admissible, particularly if that disease could be caused due to many other reasons including use of alcohol.
In another judgment in Revision Petition No. 2476 of 2011 [Anil Kumar—Vs—National Insurance Co. Ltd. and Ors.] reported in I (2018) CPJ 541 (NC), the Hon’ble National Commission adjudicated the repudiation as unjustified with the observation that merely because the case history of a person revealed factum of alcohol influence without any supportive or cogent evidence, one should not conclude a person to be under the influence of alcohol.
With the submissions as above, the Ld. Advocate prayed for the Appeal to be allowed and the direction to be passed upon the Respondents/OPs to pay the Appellant/Complainant the claimed amount as insurance coverage with cost and compensation.
The Ld. Advocate appearing on behalf of the Respondents/OPs, per contra, submitted that the Respondent/OP Company did not dispute the happening of the incident. It did not deny the fact that the Appellant/Complainant fell from the stairs but was convinced through the treating doctor’s opinion that he was under the influence of alcohol when the accidental fall took place.
He drew the notice of the Bench to column 7 of the report of the attending physician, running page 13 of the Appeal, filed by the Respondent/OP Nos. 1 and 2 in the instant case and submitted that the Appellant/Complainant’s state of inebriation at the time of the incident was unambiguously reported in the said documents of substantial evidentiary value.
Referring to running page 26 under head ‘B’—“what we will not pay for”, the Ld. Advocate continued that the policy was categorical at sub-para (b) about providing no coverage to any incident happened under the influence of liquor.
As regards permanent disability as claimed in the complaint, it was stated that there was no loss of limbs, nor the certificate indicated about permanent disability of the alleged victim. Moreover, the Appellant/Complainant allegedly sustained injury in head but he was certified to be having disability in legs. This raised suspicion as to the existence of the victim’s disability prior to the alleged incident. As he continued to submit, the victim had sustained no injury at all but made a ploy with his complaint for deriving the unjust enrichment.
As he concluded, the Appeal did not have any merit and accordingly, it should be dismissed with consequent dismissal of the Complaint Case.
Perused the papers on record and considered submissions made on behalf of both sides.
It appeared that the entire issue was depending upon the decisions on two points mentioned hereunder:-
- Whether the Appellant/Complainant was really under the influence of alcohol when the subject accident had taken place.
- Whether the Appellant/Complainant had really suffered from permanent disability.
As regards first point, we have examined the documentary evidences related to the allegation of Appellant/Complainant’s state of inebriation at the time of happening of the subject incident. The running pages 13 and 14 of the Appeal No. 362/2016 which was the medical certificate filed by the attending physician was seen to have no signature of the attending physician at running page 13 and the two signatures of the authority issuing the certificates in two different pages that is 13 and 14 were seen to be varying. The authenticity of the disputed running page No. 13, a part of the medical certificate and the vital document relied upon by the Respondents/OPs to prove the Appellant/Complainant’s state of inebriation at the relevant point of time, could be put to question in the given circumstances.
The decision of the Hon’ble National Commission in New India Assurance Co. Ltd.—Vs—Surendra Kumar Nanda, supra, appeared to be not squarely applicable in the present case.
We, however, find applicability of the decision of the Hon’ble National Commission in the Anil Kumar—Vs—National Insurance Company Ltd. and Ors. Supra, on the instant occasion and intend to place reliance on the said decision while affirming the decision of the Ld. District Forum towards awarding reimbursement of claimed amount for treatment keeping in mind the allegation of inebriation raised by the Respondents/OPs.
The reimbursement of the claimed amount of Rs. 1,39,200/- for treatment of the accused, therefore, cannot be ruled out.
As regards second point, we find the victim received an injury in head from accidental fall but his disability was restricted to leg only and no other organ of the body.
The medical certificate Annexure F, running page 54, indicated that the patient had 60% permanent physical impairment and mental disability. It was further noticed at column B that period of one year was given for reassessment of disability. The case record was devoid of any evidence establishing the fact that any reassessment was at all made. There was no parting of limbs or any reason to believe that there was permanent total disability or permanent disability as envisaged under clauses 2 and 3 respectively of the policy, particularly when the reassessment of disability after one year as suggested in the medical certificate was not done. We have no hesitation to hold that the Ld. District Forum had made no wrong in assessing the merit of the claim from this point of view.
Above being the facts and circumstances, we are of the considered view that the impugned judgment and order does not deserve any intervention from this end.
Hence,
Ordered
that the Appeal be and the same stands dismissed. The impugned judgment and order stands affirmed. No order as to costs.
Instant order shall govern the Appeal bearing No. 362/2016. Both the Appeals bearing Nos. A/206/2016 and A/362/2016 stand dismissed accordingly.
Let the original copy of this order be kept in the case record of A/206/2016 and a photocopy thereof in A/362/2016.
