IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
Dated this the 24th Day of March 2022
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, Bsc, L.L.B,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.92/2019
Karuppaya : Complainant
S/o Alagamuthu
Cheruvilakkara Veedu, Surabhi Nagar 189A,
Vadakkevila P.O, Kollam.
[By Adv.S.N.Shameem]
V/s
The Branch Manager : Opposite party
HDFC Ergo General Insurance Co. Ltd.,
V th Floor, Bishop Jerome Nagar,
Chinnakkada, Kollam.
[By Adv.S.Dileep Kumar]
FINAL ORDER
Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
This is a case based on a complaint filed u/s 12 of the Consumer Protection Act.
The averments in the complaint in short are as follows:-
The complainant availed a Sarv Suraksha Insurance Policy from the opposite party as Master Policy No.2999201366177701 valid from 02.02.2018 to 01.02.2021. As per the policy coverage permanent total disability, permanent partial disability coverage loss of job and accidental hospitalization are also available. On 15.05.2018 at about 10.30 pm while the complainant was riding his motor cycle bearing Reg.No.KL 02 BD 6647 from Kottiyam towards his residence through Kollam-Thiruvananthapuram NH road and when the complainant reached at Umayanalloor junction a stray dog jumped in front of his motor cycle. He suddenly applied the break and thereupon the vehicle skidded and the complainant fell down on the road sustained severe injuries all over his body including partial loss of right and left upper central incisor and fracture and thereby the complainant sustained permanent partial disability. Immediately after the accident the complainant was taken to Holy Cross Hospital and treated there for a considerable period and the complainant has spend more than Rs.25,000/- as initial payment. Kottiyam Police has registered Crime No.506/18 under police standing order 306(1)(C)(MA). Thereafter the complainant approached a Dental Surgeon and the said Dental Surgeon advised the complainant to undergo root canal for curing the injuries sustained to his teeth which requires more than Rs.3,00,000/-. The complainant approached the opposite party and lodged a claim for Rs.3,25,000/- for the partial disability sustained to him under the said insurance policy. Inspite of repeated request and demand the opposite party has not settled the claim and deliberately avoid the complainant with silly reasons and thereby committed unfair trade practice and deficiency in service. Hence the complaint.
Opposite party entered appearance and resisted the complaint by filing a detailed version raising the following contentions. The complaint as framed is not maintainable either in law or on facts. The complainant has no manner of cause of action against the opposite party. The complainant approached the opposite party intimating the alleged accident but not complied with the policy conditions of the subject matter of the claim. However the opposite party would admit that he had issued a Sarv Suraksha Policy to the complainant for a period commencing from 02.02.2018 to 01.02.2021, subject to the terms and conditions stipulated in the policy wording attached with the policy. As per Section 3.1 of the policy condition, the insured shall immediately and in any event within 14 days give written notice of the same to the opposite party and insured shall within 28 days deliver to the company its completed claim form detailing the loss or damage that has occurred and an estimate of the quantum of any claim along with all documents required shall be filed. The insured is also liable to provide the company and its representatives all information, assistance, records and documentation that they might reasonably require. But in this case the complainant has not complied with any of the afore mentioned policy conditions. The opposite party has received the intimation regarding the accident only through Advocate notice dated 02.11.2018. The injured complainant in fact failed to comply with the contractual obligation on its part as per the terms and conditions of the policy. For want of claim intimation and supporting document from the complainant the opposite party has not got an opportunity to consider the admissibility of the claim. The complainant is not entitled to claim any benefits under the policy for the alleged injury sustained to him on the alleged insurance even otherwise. As per the specific conditions given in section 2.2&2.3 of the policy wordings, the complainant is entitled to claim benefits under the policy only for the bodily injury sustained to him from an accident resulting in permanent total disability or permanent partial disability as mentioned in the table of the policy wordings, during the policy period. In the present case the complainant has not suffered any permanent total disability or permanent partial disability as mentioned in the permanent total disability and permanent partial disability table mentioned in the policy. The nature of permanent total disability and permanent partial disability and the corresponding injuries resulting in permanent total disability and permanent partial disability and the scale of benefits eligible to the insured under the policy are specifically mentioned in the table given in the policy itself. But in the present case the injury suffered to the complainant on account of the alleged accident will not come under the category of injuries mentioned in the permanent total disability and permanent partial disability table mentioned in the policy and as such the complainant is not entitled to claim any benefits under the policy for the alleged injury sustained to him in the accident, which is out of the scope of the nature of injuries eligible to claim the benefits under the policy. The complainant has not suffered any permanent total disability or permanent partial disability for making any claim under the policy. The nature of injury suffered to the complainant on account of the accident will not come under the category of permanent partial disability given under the table of the policy and out of the scope of coverage given under the policy. The compensation claimed by the complainant is in no way justifiable and is against the basic terms of the policy conditions. The opposite party further pray to dismiss the complaint with its costs and compensatory costs.
In view of the above pleadings the points that arise for consideration are:-
- Whether there is any deficiency in service or any unfair trade practice on the part of the opposite party for declaring claim raised by the complainant against Sarv Suraksha Insurance Policy?
- Whether the complainant is entitled to get Rs.3,25,000/- as cost and compensation as claimed?
- Reliefs and costs.
When the case was listed and relisted for trial from 05.03.2020 onwards both sides have not cared to adduce evidence. On 22.09.2021 when the case was taken up for recording evidence the learned counsel for the complainant applied for time to adduce evidence. The prayer was allowed as no further time and posted for recording evidence to 05.10.2021. On that day both sides have not turned up and adduced any evidence. In fact there was no representation for both sides also. In the circumstances we are of the view that the complainant is having no interest in adducing any oral evidence. Therefore the documents produced along with the complaint has been marked as Ext.P1 to P11 and closed the complainant’s evidence. On the next posting date the opposite party present and filed one document which is marked as Ext.D1 series. Opposite parties evidence also closed and posted for hearing. The learned counsel for the complainant has not turned up nor filed any notes of argument or advance any oral argument. The learned counsel for the opposite party filed notes of argument but not advanced any oral argument. Hence the matter was taken up for order.
Point No.1&2
For avoiding repetition of discussion of materials these 2 points are considered together. The specific case of the complainant is that he has taken Sarv Suraksha Insurance Policy from the opposite party. The said policy would cover permanent total disability and permanent partial disability coverage, loss of job and accidental hospitalization expenses is also agreed to be paid as per the policy. The policy was for 3 years and it was valid from 02.02.2018 to 01.02.2021. The opposite party is not having any dispute with regard to the above case of the complainant. In paragraph 5 of the written version it is admitted by the opposite party that it had issued Sarv Suraksha Insurance Policy as claimed to the complainant for the period from 02.02.2018 to 01.02.2021 in favour of the complainant. The opposite party has also not disputed the validity of the policy as per the date of the alleged accident. But the contention of the opposite party in this regard is that the policy is applicable subject to the terms and conditions stipulated in the policy. The opposite party has also produced a copy of the policy and the terms and conditions attached to the policy(policy wording). The said policy and policy wordings (terms and conditions) are together marked as Ext.D1 series.
According to the complainant on 15.05.2018 at about 10.30 pm while he was riding his motor cycle bearing Reg.No.KL 02 BD 6647 from Kottiyam towards his residence through Kollam-Thiruvananthapuram NH road and when the complainant reached at Umayanalloor junction a stray dog jumped in front of his motor cycle. He suddenly applied the break and thereupon the vehicle skidded and the complainant fell down on the road sustained severe injuries all over his body including partial loss of right and left upper central incisor and fracture and thereby the complainant sustained permanent partial disability. Immediately after the accident the complainant was taken to Holy Cross Hospital and treated there for a considerable period and the complainant has spend more than Rs.25,000/- as initial payment. Kottiyam Police has registered Crime No.506/18 under police standing order 306(1)(C)(MA). Thereafter the complainant approached a Dental Surgeon and the said Dental Surgeon advised the complainant to undergo root canal for curing the injuries sustained to his teeth which requires more than Rs.3,00,000/-. The complainant approached the opposite party and lodged a claim for Rs.3,25,000/- for the partial disability sustained to him under the said insurance policy. Inspite of repeated request and demand the opposite party has not settled the claim and deliberately avoid the complainant with silly reasons and hence he filed the present complaint. According to the opposite party the complainant has not complied with the terms and conditions of the policy wording and that is why the opposite party has denied the claim amount. It is pointed out in paragraph 5 of the written version that the opposite party has not complied with clause 3.1 of the policy conditions wherein it is stated that insured shall immediately and in any event with 14 days give written notice of the claim to the address shown in the schedule for this purpose and in case of notification of an event likely to give rise to claim to specify the grounds of such belief. The above conditions would insist that the complainant has to give written notice regarding the event(accident) within 14 days to the insurance company. According to the opposite party the clause No.3.2 of the general conditions of the policy wording has also been violated. As per the above conditions the insured shall within 28 days deliver to the insurance company its completed claim form detailing the loss and damages that has occurred and an estimate of any quantum of any claim along with all documentation required to support the claim also has to be submitted to the insurance company and according to the learned counsel for the opposite party as the complainant has miserably failed to comply with the above 2 condition he is not entitled to claim the benefit of the policy. We find much force in the above contention. The reasons for the non compliance of the provisions under Section 3.1&3.2 of the policy wordings is not explained by the complainant. Though in the written version the learned counsel for the opposite party has raised such contentions the complainant has not attempted to explain the reasons if any for the non-compliance of the above provisions which are mandatory. It is further to be pointed out that though the complainant has filed proof affidavit after filing the written version(but not co-operated with the trial by facing cross examination) there is no whisper in the proof affidavit regarding the non compliance of the above provisions.
It is well settled that a court of law is not expected to add or subtract anything from the contract of insurance which is an “Uberrimae fidei” contract. Section 3.1 of the policy wordings is regarding the delay in giving notice of the claim to the insurance company. Accordingly the complaint has to give written notice regarding the event or accident within 14 days of occurring the same to the insurance company. This may be due to the hospitalization or treatment of the complainant. But he has not stated that fact either in the complaint or in the proof affidavit that as he was hospitalized he could not give intimation to the insurance company within the stipulated period. Clause 3.2 of the general conditions of policy wordings would indicate that the complainant has to return completed claim form stating the details of loss and damage that has occurred along with document required to support the claim to the insurance company. According to the opposite party the complainant has miserably failed to do so. Why the complainant failed to comply with the above provision is best known to the complainant. As per Section 106 of the Indian Evidence Act if a particular fact is especially within the knowledge of the complainant it is the complainant to allege and prove that fact before the court of law or Forum/Commission. But it is clear from the pleadings and averments in the proof affidavit and Ext.P7 lawyer notice neither the complainant nor the counsel for the complainant came to know about the non compliance of the provisions of clause 3.1 and 3.2 of the General conditions of the policy wordings, even though these facts are specifically contented by the opposite party in the written version. A court of law or tribunal or any other quasi judicial Forum is not expected to decide a case on the basis of surmises and hypothecation by assuming that the complainant might have under treatment due to the injury sustained to him during the accident and that is why the delay without any specific pleadings and evidence. Even as per Ext.P4 extract of Accident Register cum wound certificate that the complainant was not treated as inpatient at the Holy Cross Hospital, Kottiyam where he was taken immediately after the accident. But in Ext.P4 Wound certificate 2 suspected fracture on the body of the complainant has been stated. It is further to be pointed out that inorder to get the claim under the policy the complainant has to establish that he sustained permanent total disability under clause 2.2 or permanent partial disability under clause 2.3 of the policy conditions. But apart from Ext.P4 accident cum wound certificate there is nothing on record to substantiate the same. Hence it is clear that the complainant has not complied with clause 2.2 and 2.3 of the policy
conditions also.
On evaluating the entire materials available on record we come to the conclusion that the complainant has violated policy conditions No.3.1 and 3.3 which are contractual obligations on the part of the insured in the event of a claim arising out of the policy. The complainant has also not complied with condition stipulated under clause 2.2&2.3 of the policy wordings. In the circumstances, denial or rejection of claim by the opposite party insurance company cannot be considered as deficiency in service or any unfair trade practice. It is clear from the available materials that the complainant has utterly failed to substantiate that there is deficiency in service or any unfair trade practice on the part of the insurance company without which the Consumer Commission cannot interfere in the matter. We find no merit in the complaint and the same is only to be dismissed. The points answered accordingly.
In the result complaint stands dismissed.
No costs.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Commission this the 24th day of March 2022.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-Nil
Documents marked for the complainant
Ext P1 : Copy of FIR.
Ext P2: Copy of accident spot Mahassar from Kottiyam Police.
Ext.P3 : Copy of mahassar(vehicle).
Ext.P4: Copy of accident register cum would certificate from Holy Cross Hospital, Kottiyam.
Ext.P5: Copy of report of inspection of motor vehicle involved in an accident.
Ext.P6 : Copy of RC book.
Ext.P7 : Copy of lawyer notice.
Ext.P8 : Postal receipt.
Ext.P9 : Acknowledgement card.
Ext.P10: Copy of policy.
Ext.P11: Copy of final report.
Witnesses Examined for the opposite party:-Nil
Documents marked for opposite party:-
Ext.D1series:True copy of the policy conditions
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
