BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 442/2002 Filed on 23.10.2002

Dated : 30.06.2010

Complainant:

Joseph Ninan, residing at Kaithayil Bhavan, Nalanchira P.O, Thiruvananthapuram.

(By adv. S.V. Shaji)

Opposite parties:

1. The Branch Manager, New India Assurance Co. Ltd., Branch Office, T.C 26/1436, Government Press Road, Thiruvananthapuram.

    

2. The Regional Manager, New India Assurance Co. Ltd., Regional Office, 36/707, Kandankulathy Towers, P.B.No. 1049, M.G. Road, Ernakulam.

(By adv. Sreevaraham G. Satheesh)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 29.11.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 19.05.2010, the Forum on 30.06.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

By attractive advertisement as well as personal assurance given by the officials of the opposite party company the complainant was induced to take a policy under the Janatha Personal Accident Insurance Policy bearing No. 47/760502/10236 from the 1^st opposite party's branch office at Thiruvananthapuram for an amount of Rs. 10,00,000/- for a period of 15 years i.e; from 18.12.1997 to 17.12.2012 after remitting a premium of Rs. 4,000/-. The certificate of the insurance policy dated 18.12.1997 was also issued to the complainant. The said policy is intended for the persons belonging to the age group of 5 to 80 years. On 26.12.2000 at about 1:30 PM while the complainant was riding his scooter he had met with an accident due to his scooter was hit by an autorikshaw on the M.G. Road, Opp: to A.G.'s office, near Statue Junction, Thiruvananthapuram. Due to the accident he had fallen down from the scooter on the road and he was lying throughly shocked and could not regain his sense for a short while. Hence he could neither stop the autorikshaw nor note down the registration number of the said autorikshaw. He was lying helpless on the road for some time. After sometime with the help of a pedestrian named one Sajithkumar who was witnessed the accident he got up from the road and he was taken to the Cosmopolitan Hospital, Thiruvananthapuram. In the hospital, complainant had undergone different medical examinations, including X-ray, etc. were taken. From the X-ray it revealed that his right collar bone was broken and there was a fracture on the right clavicle. He was treated by Dr. Jesukumar, Orthopedic Surgeon, Cosmopolitan Hospital, Thiruvananthapuram. As a treatment his right was put in pouch and his right hand was bound by clavicle brace. He was on the sling for 45 days from 26.12.2000 to 07.02.2001. He had suffered a lot due to physical as well as mental pain. It is submitted that while the complainant was on the sling for the said 45 days he was totally in a bed-ridden condition. He could not do anything without the help of others. He could not do his day-to-day primary needs independently. He could not do any work and also he could not attend to his business during this period. Being the policy holder the complainant had applied for the claim for an amount of Rs. 50,000/- on 02.01.2001 before the 1^st opposite party's branch office to meet the medical expense and other miscellaneous expenses incurred by the complainant due to the accident along with a medical certificate issued at the initial stage of the treatment dated 07.02.2001 issued by Dr. Jesukumar who had treated the complainant at the Cosmopolitan Hospital and the claim application was taken to the file of the 1^st opposite party on 08.01.2001. On 28.02.2001 the complainant was received a letter from the 1^st opposite party stating the rejection of the complainant's claim on the ground that the Janatha Personal Accident Policy was covering only permanent disablement and not covering any temporary disablement. Hence the complainant had sent a written complaint dated 02.10.2001 to the Insurance Ombudsman in Ernakulam with a prayer to give direction to the 1^st opposite party to act positively to the complainant's claim. In reply to that complaint the complainant had received a letter from the insurance ombudsman advised him to approach the 2^nd opposite party before approaching the Ombudsman. As per the direction of the Ombudsman, the complainant had sent a complaint dated 07.11.2001 before the 2^nd opposite party claiming compensation under the policy due to the accident. But the 2^nd opposite party also rejected the claim. Hence the complainant lodged a complaint before the Ombudsman dated 20.12.2001 seeking a claim of Rs. 50,000/- as the accident claim under the cover of the said policy. But the Ombudsman also repudiated the claim of the complainant without considering the factual and legal aspects and paid no heed to the complainant's oral and documentary evidence as well as the arguments put forward by the complainant. It is also submitted that the complainant is still undergoing physiotherapy treatment for cuing the disability of his right hand. Doctors who treated him also told him that the disability of his right hands of permanent nature and it is not possible to attain the original efficiency of his right hand. Even now he could neither lift a small bucket of water nor drive his vehicle. This shows the permanent, total and absolute disability of his right hand. Due to the re-union of the bone at the wrong and permanent. He has been suffering from anatemical disfigurement leading to the absolute imperfect functioning of the right hand which has resulted in lack of confidence in using the hand, and still he is feeling much pain on his right hand and right shoulder. All these cause much inconvenience and he cannot satisfactorily engaged in his business also. Hence the complainant is fully entitled to get relief under the cover of the policy to the tune of at least 2 lakhs rupees since his right hand become totally and permanently disabled due to the accident. This accident also caused much loss to his business with due to his continuous absence especially the said 45 days at the beginning. It is also submitted that the opposite parties cancelled the said policy of the complainant unilaterally on 31.05.2002 to wreck vengeance upon the complainant. All such acts formed part of deficiency in service on the part of the opposite parties. It is also submitted that the complainant had already spent more than Rs. 50,000/- for the treatment and still undergoing treatment which causing much monetary burden upon the complainant. Though the complainant cannot equate his suffering and damages in terms of money he is limiting the damages to the tune of Rs. 1 lakh and he is also entitled get back the amount of Rs. 50,000/- which he had already spent for his treatment due to the accident with 18% interest from the date of this complaint and till the date of realization.

Opposite party New India Assurance Company Ltd. filed their version. The matter in issue was considered by the Insurance Ombudsman, Kochi, as approached by the complainant and after adjudication of the dispute, an award was passed by the Ombudsman on 27.03.2002 dismissing the claim of the complainant. This complaint is not maintainable in the light of Rule 12(3) of the Redressal of Public Grievances Rules 1998. The complainant has taken a long term Janatha Personal Accident policy for a period from 18.12.1997 to 17.12.2012. On 08.02.2001 the complainant submitted a claim form alleging a fracture of right clavicle in a road traffic accident. The Medical Certificate column of the claim form filled by the doctor who treated the complainant clearly stated that the complainant was having total disablement for four weeks and partial disablement for two weeks. As per the above policy, immediate, permanent, total and absolute disablement only is covered and the same is made clear in clause (2) of the policy. In the case of the complainant there was only temporary and partial disablement and the same is not covered under the said policy. Hence the claim made by the complainant was not payable. The claim was repudiated and the matter was intimated to the complainant by way of letter dated 28.02.2001. The averments in paras 1 to 3 of the complaint are not fully correct. From the proposal submitted by the complainant, it is understood that he is doing business. But this opposite party is not aware of the details of his business. The averment that the officials of the company directly contact the public and induce them to join in the schemes is not correct. The further averment that the employees of the opposite party approached the complainant and induced to take a Janatha Personal Accident Policy is false. The complainant approached the company of his own and has taken the policy by submitting the proposal. The averments in paras 4 to 6 of the complaint are not disputed. The averment in para 7 of the complaint is not fully correct. The complainant by way of his letter dated 02.01.2001 made a request for claim form and the duly filled claim form was submitted by him on 08.02.2001. On the basis of the Medical Certificate and the policy conditions, the claim was not payable and hence the same was repudiated. The averment that the complainant applied for an amount of Rs. 50,000/- is not correct. The averment in paras 8 and 9 of the complaint are not disputed, except the averment that the Ombudsman repudiated the claim of the complainant without considering the facts and legal aspects. The Insurance Ombudsman has gone into the matter deeply and considering the facts of the case and the legal aspects of the policy and its conditions and hearing both sides passed a detailed award correctly and dismissing the claim of the complainant. The averments in para 10 of the complainant is false. The doctor who has treated the complainant has certified that the disability of the complainant was only for a total of six weeks. The present averments were never raised before the opposite parties or before the Insurance Ombudsman earlier and the same are only false and baseless improvements by the complainant out of an after thought. The complainant is not entitled for any amount as per the policy. The averment in para 11 of the complaint is not correct. As per the circular of the head office all the long term Janatha Personal Accident Policies issued before May 1999 were cancelled. The fact of the cancellation of policy was informed to the complainant stating the reasons and the balance premium was also sent to the complainant. This matter has got nothing to do with the present claim and the complainant is unnecessarily mixing the same with this present issue. The averments in paras 12 to 14 of the complaint are not correct and the same are denied. The policy does not include any provision for the payment of any medical expenses. The complainant knowing very well that he is not at all entitled for any benefits as per the policy for the present incident, with the malafide intention of extracting some amount from the opposite parties, this vexatious complaint is filed on an experimental basis. There is no cause of action for the complaint and he is not entitled for any of the reliefs prayed for. The opposite parties applying its mind, considering the materials, policy conditions and in the light of the Rules and Regulations arrived at a correct and genuine decision and repudiated the claim as the same is not payable under any of the clause of benefits in the policy. Hence there is no deficiency of service or unfair trade practice on the part of the opposite parties and the complaint is only to be dismissed. This opposite parties are entitled for compensatory costs for the vexatious complaint.

In this case both the parties filed proof affidavits and produced documents. Complainant has been examined as PW1 and from his side 8 documents were marked as Exts. P1 to P8. From opposite party's side 4 documents were marked as Exts. D1 to D4.

Points that would arise for consideration are:-

1. Whether there has been deficiency in service occurred from the side of opposite party?

2. Whether the complainant is entitled to get the insurance claim as per the policy conditions?

3. Reliefs and costs.

Points (i) to (iii):- In this case there is no dispute regarding the alleged accident or existence of policy etc. The only matter to be ascertained is whether the complainant is entitled to get the benefit under the terms and conditions of the policy. The policy copy is produced here and marked as Ext. P1. As per Ext. P1, policy copy “If the insured person shall sustain any bodily injury resulting solely and directly from Accident caused by outward, violent and visible means, then the company shall pay to the insured the sum or sums hereinafter set forth that is to say: (a) If such injury shall within one Calendar year of its occurrence be the sole and direct cause of the death of the insured person the capital sum insured in the schedule hereto. (b) If such injury shall within one calendar year of its occurrence be the sole and direct cause of the total and irrecoverable loss of sight of both eyes, or total and irrecoverable loss of use of hands or two feet or one hand and one foot, or for such loss of sight of one eye and such loss of use of one hand, one foot the Capital Sum insured stated in the schedule hereto. (c) If such injury shall within one calendar year of its occurrence be the sole and direct cause of the total and irrecoverable loss of sight of one eye, or total and irrecoverable loss of use of a hand or a foot, fifty percent if the capital sum insured in the schedule hereto (d) If such injury shall as a direct consequence thereof immediately, permanently, totally and absolutely disable the/an insured person from engaging in being occupied with or giving attention to paid employment or occupation of any description whatsoever, the Capital Sum Insured stated in the schedule hereto.

In this case due to the accident the right collar bone of the complainant was broken. There was a fracture on the right clavicle of the complainant. He was treated by Dr. Jesu Kumar, Orthopedic Surgeon, Cosmopolitan Hospital, Thiruvananthapuram. In this case the complainant did not produce his treatment record and disability certificate. The opposite party has produced the Medical Certificate issued by Dr. Jesu Kumar who has treated the complainant. The medical certificate was marked as Ext. D1. In that certificate it is clearly stated that the complainant was having total disablement for four weeks and partial disablement for two weeks. And also in the column of the certificate the doctor stated that the complainant has been prevented from attending to any portion of his business only for four weeks. As per clause (2) of the policy immediate, permanent, total and absolute disablement only is covered. In this case there was only temporary and partial disablement and the same is not covered under the said policy. Hence the claim made by the complainant was not payable and on that ground the opposite party repudiated the claim and the matter was intimated to the complainant on 28.02.2001. Another allegation raised by the complainant in this case is that the Janatha Personal Accident Policy was cancelled by the opposite party unilaterally. The opposite party stated that the fact of the cancellation of policy was informed to the complainant stating the reasons and the balance premium was also sent to the complainant. At the time of cross examination the complainant admitted this matter. “Janatha Personal Accident Policy എല്ലാം cancel ചെയ്ത വിവരം കാണിച്ച് letter കിട്ടിയിട്ടുണ്ട്. Policy close ചെയ്തതിന് ശേഷം അടച്ച തുക തിരിച്ച് തന്നിട്ടുണ്ട്”. In this case the opposite party very clearly stated the reason for the repudiation of the claim to the complainant by letter dated 28.02.2001. Thereafter complainant filed petition before the Insurance Ombudsman. The Hon'ble Insurance Ombudsman dismissed the complaint. In that order the the Hon'ble Insurance Ombudsman very clearly stated that on facts and as well as on law the complainant is not entitled to get any amount from the insurer as compensation under the aforesaid insurance policy for the injury sustained by him in the accident. Hence we also find that the complainant knows very well that he is not at all entitled for any benefits as per the policy for the present incident. This vexatious complaint is filed on an experimental basis. There is no cause of action for the complainant and he is not entitled for any of the reliefs prayed for. The opposite party repudiated the claim as the same is not payable under any of the clause of benefits in the policy. Hence the repudiation of the claim of the complainant by the opposite party is justifiable.

In the result, the complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

jb

O.P. No. 442/2002

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Joseph Ninan

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of policy schedule

P2 - Photocopy of letter dated 28.02.2001 issued by 1^st opposite

party regarding repudiation of claim.

P3 - Photocopy of complaint dated 02.10.2001 send by

complainant to Insurance Ombudsman.

P4 - Photocopy of reply letter dated 18.10.2001 send by Insurance

Ombudsman.

P5 - Photocopy of complaint dated 07.11.2001 sent by complainant

to 2^nd opposite party.

P6 - Photocopy of reply letter dated 20.11.2001 send by the 2^nd

opposite party regarding the repudiation of the claim.

P7 - Photocopy of complaint dated 20.12.2001 filed before

Insurance Ombudsman.

P8 - Photocopy of letter dated 23.09.2002 regarding the

cancellation of the policy.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Photocopy of medical certificate.

D2 - Photocopy of Janatha Personal Accident Policy.

D3 - Photocopy of letter dated 28.02.2001 addressed to complainant.

D4 - Photocopy of proceedings of the Insurance Ombudsman, Kochi.

PRESIDENT

jb