Complaint filed on: 09.01.2017
Complaint Disposed on:05.08.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.4/2017
DATED THIS THE 5th DAY OF AUGUST 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT:
Sri.Abibulla Khan @ Ayaz,
S/o Late Anwar Khan,
R/o Hoovadigara Beedhi,
Ramanahalli, Chikmagalur.
(By Sri/Smt. K.C.Shashidhara, Advocate)
V/s
OPPONENT:
The Branch Manager,
Oriental Insurance Co. Ltd.,
Nagnirmala Complex, 1st floor,
Opp. Ranganna Choultry,
Basavanahalli Main Road,
Chikmagalur.
(Op By Sri.N.Devendra Kumar, advocate)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against Op alleging deficiency in service in not settling the claim towards personal accident. Hence, prays for direction against Op to pay the personal accident benefit of Rs.1,00,000/- along with compensation of Rs.25,000/- for deficiency in service and mental agony.
2. The brief facts of the complaint is that:
The complainant is a owner of Bajaj Discover motor cycle bearing registration no.KA-18/Y-8077 and he obtained two wheelers package policy from Op vide policy no.472602/31/2015/7612, which is valid from 10.02.2015 to 09.02.2016. Such being the case, the complainant while riding the motor cycle met with an accident by collusion with scooty bearing registration no.KA-18/EB-0134 on 23.12.2015, due to which complainant suffered grievous injuries and he suffered fracture of femur, for which he taken a first aid and treatment at M.G. Hospital, Chikmagalur. There afterwards he went to Wenlock Hopsital, Mangalore, where he was treated as in-patient from 23.12.2015 to 06.01.2016. During hospitalization he underwent surgery and rod was implanted. The complainant had spent nearly Rs.1,00,000/- towards medical treatment and other expenses and he suffered permanent disability due to accident. Till today complainant is taking treatment at M.G. Hospital, Chikmagalur. The complainant being the insured had requested the Op and submitted the claim form under the head of personal accident benefit to pay the medical expenses. But the Op after receipt of the claim form and required documents had not settled the claim, the Op had repudiated the claim without any valid reasons. Hence, Op rendered deficiency in service in not settling the personal accident claim of the complainant. Finally, the complainant issued a legal notice and demanded for payment of the personal accident benefit, even inspite of receipt of the legal notice Op failed to pay the claim amount and issued untenable reply.
Hence, complainant filed this complaint and prays for direction against Op to pay the personal accident benefit to the complainant along with compensation for deficiency in service as prayed above.
3. After service of notice Op appeared through his counsel and filed version and contended that, the complainant has taken a insurance policy from this Op bearing policy no.472602/31/2015/7612 by paying premium amount of Rs.1,052/- which is in force from 10.02.2015 to 09.02.2016. The complainant also paid the additional premium of Rs.50/- towards Owner-cum -drivers risk for Rs.1,00,000/-. It is also true that complainant met with an accident, who suffered fracture of femur taken treatment at Wenlock Hospital, Mangalore as an in-patient. But they do not know that complainant had spent such an amount towards medical treatment. This Op also do not admitted the disability certificate produced by complainant. The said certificate is created for the purpose of this case only. The complainant has underwent operation at Wenlock Hospital, Mangalore and whereas he had obtained a disability certificate from M.G. Hospital, Chikmagalur. Therefore, the disability certificate is obtained for the purpose of claiming the personal accident benefit. Hence, this Op is not liable to pay any claim made by complainant.
Op further contended that, as per the two wheelers package insurance policy issued to the complainant, condition 3 of the insurance policy reads as follows:-
Sl. No. | Nature of Injury | Scale of Compensation |
1. | Death | 100% |
2. | Loss of Two Limbs or Sight of Two Eyes or one Limb and sight of one eye | 100% |
3. | Loss of one limb or sight of one eye | 50% |
4. | Permanent total disablement from injuries other than named above | 100% |
Provided always that:
A) The compensation shall be payable under only one of the item (i) to (iv) above in respect of the Owner-cum-driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.1,00,000/- during any one period of insurance.
Hence, basing on the said policy conditions the complainant is not entitled to get a personal accident benefits and in this case no such injuries suffered by complainant. Hence, they have repudiated the claim and complainant is not entitled to get any reliefs and there is also no deficiency in service on this Op in repudiating the claim of the complainant. Hence, prays for dismissal of the complaint.
4. Complainant filed affidavit and marked documents as Ex.P.1 to Ex.P.16. Op also filed affidavit and marked documents as Ex.R.1 and Ex.R.2.
5. Heard the arguments.
6. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is a Deficiency in service on the part of Op?
- Whether complainant entitled for any relief & what Order?
7. Our findings on the above points are as follows:-
- Point No.1: Affirmative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
8. There is no dispute that, complainant is owner of Bajaj Discover Motor Cycle bearing registration no.KA-18/Y-8077 and there is also no dispute that he had obtained two wheelers package policy from Op bearing no.472602/31/2015/7612, which is valid from 10.02.2015 to 09.02.2016. The Op also admits that the complainant met with an accident on 23.12.2015 and suffered fracture of femur and operation was conducted by implanting supporting rod to the femur. But denies complainant had spent nearly Rs.1,00,000/- towards medical treatment. Anyhow, after treatment complainant approached Op and requested for settlement of the claim under the head of personal accident coverage. But Op repudiated the claim of the complainant on the ground that the complainant had not suffered any permanent disability due to accident and also contended that certificate is not obtained by Wenlock Hospital, Mangalore, where he underwent surgery for implantation of the rod. Instead of that complainant obtained disability certificate from M.G. Hospital, Chikmagalur, this was created for the purpose of claiming personal accident benefit only. Hence, Op repudiated the claim of the complainant.
9. By aggrieving the repudiation complainant approached this Forum and produced FIR marked as Ex.P.1, Charge-sheet marked as Ex.P.2, Wound Certificate issued by M.G. Hospital, Chikmagalur marked as Ex.P.3, Disability certificate issued by Dr.Hebbar, Orthopedic Surgeon, M.G. Hospital, chikmagalur marked as Ex.P.4, Copy of the Driving License of the complainant marked as Ex.P.5, Registration Certificate stands in the name of complainant marked as Ex.P.6, Policy issued by Op marked as Ex.P.8, Office copy of the legal notice marked as Ex.P.9, Reply to the said notice marked as Ex.P.10. Complainant also produced Discharge summary issued by Wenlock Hospital, Mangalore marked as Ex.P.11, Out-patient slip to show he has taking treatment even after discharge marked as Ex.P.12 and X-Ray to show the fracture of femur and implantation of the rod marked as Ex.P.15, Out-patient slip issued by Mallegowda Hospital, Chikmagalur to show he was taking treatment marked as Ex.P.16 in support of his case and prays for direction against Op to settle the claim.
10. On going through the documents produced by complainant, we observed that, complainant no doubt suffered fracture of femur and rod was implanted at Wenlock Hospital, Mangalore. After that complainant had approached M.G. Hospital to obtain Disability Certificate. Dr.Hebbar has given Disability Certificate showing that the complainant having permanent disability up to 50%. The said certificate was issued by M.G. Hospital, Chikmagalur basing on the Wound Certificate and treatment given at Wenlock Hospital, Mangalore, whereas Op has taken a contention that the said certificate was created for the purpose of this case only, but Op had not made any efforts to bring the doctor, who issued disability certificate to the complainant before this Forum to elicit the true facts and we are of the opinion that the certificate is genuine certificate which was issued basing on the injury, wound certificate and treatment given to the complainant. The Op without considering the disability of the complainant has blindly repudiated the claim basing on the policy terms and conditions. We found there is a deficiency in service on the part of Op in not settling the claim even inspite of submitting the required documents and bills by complainant.
11. The learned advocate for complainant vehemently argued and cited one decision reported in 2013 AAC 1735 (MAD), M/s Bajaja Alianz General Insurance Co. Ltd. V/s C. Ramesh as follows:
- “Motor Vehicles Act (59 of 1988), S.147 – Liability of insurer – Personal Accident cover policy – Benefit under policy should be extended to all kinds of injuries”.
And also submits that the complainant is not able to do his daily routine work due to permanent disability. Hence, prays for settlement of the claim.
On perusal of the said citation the Hon’ble Madras court in 2013 AAC 1735 Hon’ble justice Manikumar J has given opinion that personal accident benefit policy, the benefit under the said policy should be extended to all kinds of injuries. Hence, basing on the said citation also complainant is entitled to get a benefit under the personal accident benefit. Here he has suffered 50% of disability. Hence, complainant is entitled to get 50% of the personal accident benefit as per the policy issued by Op. The Op also liable to pay a compensation of Rs.10,000/- for deficiency in service in repudiating the claim of the complainant along with litigation expenses of Rs.1,000/- to the complainant. As such for the above said reasons, we answer the above point no.1 and 2 in the Affirmative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is partly allowed.
- Op is directed to pay 50% of the personal accident benefit as per the policy conditions along with compensation of Rs.10,000/- (Ten Thousand Rupees only) for deficiency in service and litigation expenses Rs.1,000/- (One thousand Rupees only) to the complainant within one month from the date of receipt of this order, failing which the payable amount shall carry interest @ 9% P.A. till realization.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 5th day of August 2017).
(B.U.GEETHA) (H.MANJULA) (RAVISHANKAR)
Member Member President
ANNEXURES
Documents produced on behalf of the Complainant/S:
Ex.P.1 - FIR in Cr.No.139/2015.
Ex.P.2 - Charge Sheet.
Ex.P.3 - Wound Certificate.
Ex.P.4 - Disability Certificate.
Ex.P.5 - Copy of the Driving License.
Ex.P.6 - RC of complainant.
Ex.P.7 - Insurance Policy issued by Op.
Ex.P.8 - Letter dtd:29.09.2016.
Ex.P.9 - Office copy of the legal notice.
Ex.P.10 - Reply to the legal notice.
Ex.P.11 - Discharge Summary.
Ex.P.12 - Outpatient Card issued by Wenlock Hospital.
Ex.P.13 - Referral Card.
Ex.P.14 - 3 Medical Bills.
Ex.P.15 - X-Ray dtd:17.12.2016.
Ex.P.16 - OPD out patient card.
Documents produced on behalf of the OP/S:
Ex.R.1 - Copy of the policy.
Ex.R.2 - Copy of the Standard two wheeler package policy.
Dated:05.08.2017 President
District Consumer Forum,
Chikmagalur.
RMA
