IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 26th day of November, 2021.
Filed on 01-10-2020
Present
- Sri.S.Santhosh Kumar BSc., LL.B (President )
- Smt. Sholy.P.R, B.A, LLB (Member)
In
CC/No.243/2020
between
Complainant:- Opposite party:-
Sri.Jyothish The Divisional Manager
S/o Thomas Raveendran United India Insurance Co.
Thekkeattathuparambil Centre Point, 2nd Floor
Venmony.P.O, Near Post Office, KP Road
Chengannur, Alappuzha Kayamkulam, Alappuzha
(Adv. Bindu.M.R) (Adv. T.S.Suresh)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
1. Complainant’s case in brief is as follows:-
Complainant is the owner of motor cycle bearing Reg.No.KL 30 F 3239 and it is having a package policy with the opposite party. On 22.12.18 at about 10 PM while he was returning to home in his motor cycle through the Kalyathra- Pulakkadavu road and reached near Cheriyalummood Junction the vehicle skidded and hit on a nearby wall. Complainant sustained serious injuries and he was admitted at Josco Hospital, Edappon from there he was shifted to Christian Mission Hospital Pandalam and thereafter to the medical college hospital Kottayam. He was treated as impatient till 23.01.2019. while in the medical college hospital he underwent two major surgeries. After discharge he was admitted at Pushpagiri Hospital Thiruvalla on 13.02.2019 and underwent ventriculoperitonial shunt on 15.02.19 and treatment is going on. He had also undergone treatment at Aravind eye hospital, Thirunalveli. The accident severely damaged his eye sight and its treatment is continuing.
2. The injuries sustained to him are left frontal EDH, SAH interpeduncular cistern, brain stem contusion, pneumocephalus, displaced fracture of left frontal bone, fracture left nasal bone, cloyed fracture shaft of femur left.
3. Complainant is the holder of industrial training certificate in plumbing and he was doing allied works. The accident was communicated to the opposite party and they neglected to give the personal accident benefit and they gave Rs.5,000/- for damage to the vehicle. Complainant is permanently disabled. A ventriculoperitonial shunt is fixed inside his brain for relieving pressure on the brain caused by fluid accumulation.
4. The denial of providing personal accident coverage to the complainant by the opposite party is a clear instance of gross dereliction of duty and unfair trade practice. Complainant is legally entitled to get the benefit covered under the policy. A lawyer’s notice was issued demanding Rs.5,00,000/- being the medical expenses and Rs.10,00,000/- as compensation. Though a reply notice was sent the amount was not given and hence the complaint.
5. Opposite party filed a version mainly contenting as follows:-
The complaint is not maintainable either in law or on facts. The policy is admitted and there is personal accident coverage of Rs.1 lakh. The benefit under the policy is strictly on the basis of policy condition, exclusions, warranties, definitions etc. Benefit under the policy for personal accident is stated below.
1 | Death | 100% |
2 | Loss of two limp or sight of two eye or one limp and sight of one eye | 100% |
3 | Loss of one limp or sight of one eye | 50% |
4 | Permanent total disablement from other than named above | 100% |
6. Complaint never submitted any claim for personal accident benefit under the policy. As per policy condition 7 it is mandatory that claim shall not, within twelve calendar months from the date of such disclaimer have been made the subject matter of a suit in a court of law, then the claim shall for all purpose be deemed to have been abandoned and shall not thereafter be recoverable hereunder. More over the alleged injuries sustained to the complainant will not come under the category of injuries stated in the policy. Hence the opposite party has no liability.
7. Complaint is filed without any bonafides and there is no deficiency of service from the part of this opposite party. Since no claim form was submitted PA cover was not granted to the complainant. Insured had paid Rs.50/- as premium towards compulsory personal accident cover for owner cum driver and thecapital sum assured for that is only Rs.1,00,000/-. The alleged injury will not come under the policy and so opposite party has no liability under the policy. Hence the complaint may be dismissed with compensatory cost.
8. On the above pleadings following points were raised for consideration :-
- Whether there is any deficiency of service on the part of the opposite parties as alleged?
- Whether the complainant is entitled to realize an amount of Rs.5,00,000/- as medical expenses?
- Whether the complainant is entitled to realize an amount of Rs.10,00,000/- as compensation ?
- Reliefs and cost?
9. Evidence in this case consists of the oral evidence of PW1 and PW2 and Exts.A1to A13 from the side of the complainant. Opposite party has not adduced any evidence either oral or documentary.
10. Point No.1 to 3:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A13.
11. PW2 is the brother of the complainant. He stated that the claim form was submitted at the office of the opposite party by him. It was submitted for personal accident benefits and vehicle damage benefits. Compensation was given only for repairing the vehicle it was informed that complainant is not entitled for personal benefit scheme.
12. PW1, complainant is the registered owner of motor vehicle bearing Reg. No. KL.30-F- 3239. The vehicle is having package policy with the opposite party M/s United India Insurance Company Ltd. On 22/12/2018 at about 10.PM while he was riding the motor cycle it skidded and hit on a nearby wall causing serious injuries to the complainant. He had undergone treatment at various hospitals such as Josco Hospital, Edappon, Christian Mission Hospital , Pandalam, Medical College Hospital, Kottayam, and Pushpagiri hospital, Thiruvalla. He had some problem with eye sight and for curing the same, he had under gone treatment at Aravind eye hospital, Thirunelveli. Now the case of PW1 isthat along with the package policy he had availed a personal accident policy. Though the accident was informed to the opposite parties and a claim form was furnished,they only gave Rs.5000/- being the amount sustained for the damage caused to the vehicle. According to him he is entitled for Rs. 5 lakhs as medical expenses and he is also seeking an amount of Rs. 10 Lakh as compensation. Opposite party filed version admitting the policy.An amount of Rs. 50/- was collected and the maximum amount payable is Rs. 1 lakh. That also there is a schedule for payment. If the death is caused the amount payable is 100% and loss of two limp or sight of two eye or one limp and sight of one eye the amount is 100%. Loss of one limp or sight of one eye the amount payable is 50% and for permanent total disablement the amount payable is 100%. They also contended that the claim form was not filed by the complainant. PW1 and 2 were examined from the side of the complainant and Ext.A1 to A13 series were marked. Opposite party did not adduce any evidence either oral or documentary. Now the only question to be considered is whether PW1 filed a claim form before the opposite party and if so whether he is entitled for personal accident coverage. The accident is not disputed by the opposite party and that is why they had paid an amount of Rs. 5000/- being the amount required to repair the vehicle. Other than the evidence of PW1, the complainant the evidence of PW2 his brother is available. Though PW1 and 2 stated that claim form was submitted no evidence is produced in support of the same. It is to be remembered that for obtaining the amount required forrepairing the vehicle claim form was submitted and it was allowed. So there is no question of rejecting the claim form with respect to personal accident coverage. Ext.A1 is the policy issued to PW1 by the opposite party. On a perusal of Ext.A1 it is seen that an amount of Rs. 50/- is collected as compulsory PA for owner/driver. The PA cover to owner /driver is Rs. l lakh. So at the maximum PW1 is only entitled for Rs. 1 lakh. Ext.A13 series bills amounting to Rs.3,19,343/- was produced to prove the gravity of injuries sustained by PW1. PW1 has also produced Ext.A3. discharge card of Medical College, hospital Kottayam, Ext.A4 certificate issued from Pushpagiri hospital, Thiruvalla, Ext.A5 certificate issued from Aravind eye hospital, Thirunelveli. Ext.A8 out Patient ticket of medical college hospital, Kottayam, Ext.A9 discharge Summary issued from Pushpagiri Medical College Hospital , Thiruvalla. When the claim amount was not paid, Ext.A6 lawyers notice was issued to the opposite party on 27/7/2020 for which Ext.A7reply notice was sent on 21/8/2020. The contention taken in Ext.A7 reply notice is that complainant never approached the opposite party for personal accident claim. On the other hand they filed a claim petition for own damage and on 22/6/2020 Rs. 5584/- was paid. The learned counsel appearing for the complainant filed a detailed argument note contenting that very serious injuries were sustained to PW1 during the accident and even now also his vision is not proper. Per contra the learned counsel appearing for the opposite party pointed out that the maximum amount payable for personal accident coverage is Rs.1lakh as per Ext.A1 policy document. Only an amount of Rs.50/- was collected for covering the personal accident. The personal accident coverage is also in accordance with a schedule.
13. Complainant is relying upon Ext.A12 certificate of disability dtd. 29/9/2021 issued from Pushpagiri Medical College Hospital. From Ext.A12 it is seen that the Permanent Disability of PW1 is 65%. The learned counsel appearing for the opposite party pointed out that complainant has not produced disability certificate issued from Govt. Medical College hospital though he had undergone treatment there. Instead of that he had produced Ext.A12 seen issued from Pushpagiri Medical College hospital. The main contention of PW1 is that he is having vision problem. The personal coverage is issued as per a schedule. As per the schedule
1 | Death | 100% |
2 | Loss of two limp or sight of two eye or one limp and sight of one eye | 100% |
3 | Loss of one limp or sight of one eye | 50% |
4 | Permanent total disablement from other than named above | 100% |
14. Here though as per Ext.A12 PW1 is having 65% permanent disability, as per the schedule loss of one limp or sight of one eye the amount payable is only Rs. 50%. From Ext.A12 it is seen that theOpthalmologicaly disability is 40% and the total disability is 65%. As per the schedule for loss of one limp or sight of one eye the amount payable is 50%. As discussed earlier as per Ext.A1 policy schedule the maximum PA cover is Rs. 1 lakh. Though complainant has produced Ext.A13 series bills amounting to Rs. 3,19,343/- the total PA coverage is only Rs. 1 lakh and that also for death and permanent disability as shown in the schedule. Here in this case considering the entire evidence available we are of the opinion that since PW1 is having 40% Opthalmologicaly disability he is entitled for an amount of Rs. 50,000/-ie, 50% of Rs. 1 lakh.
15. Complainant is claiming an amount of Rs. 10 lakhs as compensation. The contention taken by the opposite party is that claim form was not submitted and so they had no occasion to consider the case of complainant. This attains significance since for repairing the vehicle a claim form was filed and Rs.5,584/- was allowed on 22/6/2020. So without filing a claim form it cannot be considered that there was deficiency of service from the part of opposite party.As stated earlier except the interested testimony of PW2 who is none other than the brother of the complainant no evidence is available to show that a claim form was submitted immediately after the accident. In said circumstances complainant is not entitled for any compensation. These points are found accordingly.
16. PointNo.4:-
In the result complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs.50,000/- (Rupees Fifty thousand only) along with interest at the rate of 9% per annum from the date of order ie, 26/11/2021 till realization as personal accident cover from the opposite party.
B) Complainant is allowed to realize an amount of Rs.2000/- (Rupees Two thousand only) as cost from the opposite party.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 26th day of November, 2021.
Sd/-Sri.S.SanthoshKumar(President)
Sd/-Smt.Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - Jyothish (Complainant)
PW2 - Rajesh(witness)
Ext.A1 - Copy of Motor Insurance Package policy schedule
Ext.A2 - Certificate issued from Venmoni Police Station
Ext.A3 - Discharge Card
Ext.A4 - Certificate issued from Pushpagiri hospital, Thiruvalla
Ext.A5 - Certificate issued from Aravind eye hospital
Ext.A6 - Lawyers Noticedtd.27/7/20120
Ext.A7 - Reply Notice dtd.21/8/2020
Ext.A8 - Bills issued from Medical College Hospital, Kottayam
Ext.A9 - Discharge Summary issued from PushpagiriHosptial
Ext.A10 - Medical Report &Discharge Summary, Aravind eye
Hospital
Ext.A11 - Copy of National Trade Certificate
Ext.A12 - Disability certificate issued from Pushpagiri Medical College
Evidence of the opposite parties:-Nil
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
