<br /> By SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> <br /> <br /> Complainant filed this complaint claiming Insurance amount.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant is the registered owner of Motor Cycle bearing Reg.No.KL-2/S 8943. The said motor cycle was insured with the opp.party for the period from 26.8.2004 to 25.8.2005. On 15.11.2004 at 7.45 hrs. the complainant was driving the motor cycle along Sasthamcotta Titanium road and when he reached near Thevalakkara Karayilmukku one dog suddenly ran cross the road and the motor cycle hit the dog and it capsized and the complainant sustained injuries such as fracture to left clavicle, soft tissue wound on the right forearm and left shoulder. The complainant was suddenly taken to the A.M. Hospital, Karunagappally where he had undergone treatment as inpatient. At the time of accident he was only 45 years of age and an able bodied man. He was worker grade II in the K.M.M.L. and having income of Rs.3500/- per month and other benefits. He was on leave for 45 days. He has a valid driving license bearing NO.QK/756/04. The complainant though approached the opp.party for getting compensation; the same was not received so far, though the opp.party is responsible for the same. Hence the complaint.<br /> <br /> The opp.party filed a version contending, interalia, that the complaint is not maintainable either in law or on facts. The complainant has approached this Forum with unclean hands by suppressing material facts . The definition complaint, complainant, Consumer dispute service as defined in section 2[1] of the Consumer Protection Act do not cover the claim made out in this complaint. The complainant has no cause of action to file this complaint and therefore the complainant is not maintainable. The opp.party had issued a comprehensive package ‘B’ policy in favour of the complainant in respect of the motor cycle bearing Reg.No.KL-2S-8942 for the period from 26.8.2004 to 25.8.2005. Under the insurance policy Personal Accident Coverage for Rs. 1 lakh is payable to the owner-driver in case of his death or permanent total disablement from the injuries sustained and for loss of two limbs or sight of two eyes or loss of one limb and sight of one eye an amount of Rs.50,000/- is payable. The scale of compensation to the insured under the Policy is scheduled in the policy itself and it is a concluded contract. The injured complainant had not sustained any permanent total disablement on account of the injury sustained due to the alleged accident. The permanent total disablement is defined in the schedule of the policy. The opp.party is liable to pay when 100% disablement is sustained in an accident. The opp.party as per the Personal Accident Coverage under the policy in respect of the owner driver is only in case of death and permanent total disablement.. Any other injuries sustained will not come under the category of the permanent total disablement and therefore the same is out of the scope of the policy coverage. The injury sustained by the complainant therefore is not liable to be considered. The complainant has not preferred any claim with this opp.party as alleged in the complaint. The complainant has willfully violated the condition No.1 of the policy and as such he has no manner of right to allege any deficiency in service against the opp.party. The complainant has no locusstandi to prefer a consumer dispute against the opp.party ignoring the terms and conditions stipulated in the contract of insurance. Hence the opp.party prays to dismiss the complaint.<br /> <br /> <br /> Points that would arise for consideration are:<br /> <br /> 1. Whether there is any deficiency in service on the part of the opp.part?<br /> 2. Reliefs and costs.<br /> <br /> <br /> For the complainant PW.1 is examined. Ext. P1 to D3 are marked.<br /> <br /> For the opp.party DW.1 is examined. Ext. D1 is marked.<br /> <br /> Points 1 and 2<br /> <br /> As a matter of fact there is no dispute that the complainant is the owner-driver of the vehicle bearing Reg. No.KL-2S/8943 at the time of accident. It is also not in dispute that the complainant has taken Ext.P1 Package Policy from the opp.party under which the owner-driver is eligible to get a sum of Rs. 1 lakh in case of death or permanent total disablement [100% disability] and for Rs.50,000/- in case for loss of two limbs or sight of two eyes or loss of one limb and sight of one eye . Admittedly the complainant has not sustained permanent total disablement Ext.P3 treatment certificate produced by the complainant shows that the injuries sustained by the complainant is a fracture to the left clavicle which is not a permanent 100% disablement. The learned counsel of the opp.party argued that under Personal Accident policy coverage the liability of the opp.party is specified in Section 3 of the policy condition. Under section 3 of the policy condition it is clear that only when the owner driver sustained total permanent disablement ie.100% disability or death he is entitled to get a sum of Rs. 1,00,000/- and he is entitled to get 50,000/- if he lost one limb and sight of one eye. It is well settled that the parties are governed by the terms and conditions of the policy in the decision of National Commission reported in I [ 2007] CPJ 230 it has been held that “as per policy only total and permanent disability resulting from accident is covered. It is a case wherein 81% disability was sustained but it was held to be partial. The permanent total disability as per policy conditions means [a] irrecoverable loss of the entire sight of both the eyes [b] amputation of both the hands or above the wrists [c] amputation of both feet at or above ankles. Admittedly the complaint herein has not sustained any of the injuries referred to above. Therefore, as argued by the opp.party the complainant is not entitled to get compensation as prayed for. The learned counsel of the opp.party argued that the complaint has no cause of action for filing this complaint as he has not approached the opp.party claiming the insurance amount before filing this complaint, and therefore the complainant has lno right to alleged deficiency in service against the opp.party. Though the complainant would claim that he had preferred claim no material, worth believable, was produced to establish that contention. Therefore it is obvious that the complainant had not preferred any claim before the opp.party before approaching this Forum and as such he has no cause of action to allege deficiency in service against the opp.party For all that has been discussed above we find that the complainant is not entitled to get compensation prayed for and that there is no deficiency in service on the part of the opp.party. Point found accordingly.<br /> <br /> <br /> <br /> In the result he complaint failed and the same is hereby dismissed. No costs.<br /> <br /> Dated this the 30th day of August, 2008. <br /> <br /> <br /> I N D E X <br /> <br /> List of witnesses for the complainant<br /> PW.1. – Aboobaker Kutty<br /> <br /> List of documents for the complainant <br /> P1. – FIR<br /> P2. – Mahazar<br /> P3. – Treatment certificate<br /> <br /> List of witnesses for the opp.party<br /> DW.1. – N. Raju<br /> <br /> List of documents for the opp.party : Nil<br /> <br /> <br /> <br /> Dated this the 30th day of August, 2008.<br />