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. 342/2004

Dated : 31.03.2009

Complainant:

Benoy P. Koshy, Parangammoottil House, Mulakuzha P.O, Chengannur, Alappuzha District.

(By adv. M.V.S. Nampoothiri)

Opposite parties:

1. The New India Assurance Company Ltd., represented by its Chairman and Managing Director, New India Insurance Co. Building-87, Mahatma Gandhi Road, Fort, Mumbai-400001.

    

2. The Regional Manager, New India Insurance Co. Ltd., Regional Office, 36/707, M.G. Road, Ernakulam.

    

3. The Divisional Manager, Divisional Office, New India Insurance Co. Ltd., 2^nd Floor, K.N. Mathew Buildings, Gandhari Amman Kovil Street, Thiruvananthapuram.

(By adv. M. Nizamudeen)

This O.P having been heard on 16.03.2009, the Forum on 31.03.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Brief facts of the case are as follows: The complainant while working as directional drilling machine operator in Saudi Arabia insured his life under the Pravasi Suraksha Social Welfare Scheme of the 1^st opposite party, the New India Assurance Company Ltd. The scheme is one for the welfare of the Indians working abroad if their life is endangered due to any accident. Scheme A was opted by the complainant in which a capital sum assured by the policy is Rs. 5 lakhs. Thereafter the complainant was regularly remitting the premium. The complainant met with an accident while he was working on 19^th October 1998. Immediately after the accident he was taken to Dr. Fakeeh Hospital, Jeddah and his four fingers were amputed as they were very badly damaged. The father of the complainant who was the nominee of the complainant in the above said policy submitted the claim form after duly filling with relevant records before the opposite parties. But the opposite parties repudiated the claim of the complainant on the ground that there is no loss of use of his one entire limb. As there is no positive action from the opposite parties to grant compensation, the complainant approached the Hon'ble High Court of Kerala by filing O.P 26291/2000 and on 22.07.2004 the Hon'ble High Court dismissed the original petition observing that the Hon'ble High Court cannot interfere with the matter under article 226 of the Constitution of India. The Hon'ble High Court excluded the period the original petition was pending there, for computing the period of limitation for approaching appropriate Forum. Hence the complainant approached this Forum for the redressal of his grievances.

Opposite parties in this case are the New India Assurance Company and its Regional Manager and Divisional Manager. They have filed version and the main contention of their version is that no permanent total disablement or loss of limb or eye was caused to the complainant to get the benefit under the policy. They stated that on perusal of the claim submitted by the complainant it was found that the claim submitted by the complainant is not payable under the terms and conditions of the policy issued in favour of the complainant since no permanent total disablement or loss of one entire limb or loss of eye was caused to the complainant. The claim submitted by the complainant was repudiated by the opposite parties for valid, cogent and justifiable reasons and as per policy conditions after applying its mind and the same was intimated to the complainant vide letter dated 03.05.1999 without any delay. The opposite party further stated that the disability certificate issued by Dr. K.M. Thomas produced by the complainant is without any basis. Another contention of the opposite parties are that the complaint is barred by limitation. Then stated that they had not committed any deficiency in service or unfair trade practice or delay in the proceedings.

In this case the complainant and opposite parties filed proof affidavits. From the side of complainant 8 documents were marked as Exts. P1 to P8. Opposite parties did not produce any documents. Examined the complainant as PW1 and examined the 3^rd opposite party as DW1. Both parties were cross examined.

Points that would arise for consideration are:-

1. Whether the complaint is barred by limitation?

2. Whether loss of fingers comes under the purview of limbs?

3. Whether there is deficiency in service or unfair trade practice from the side of opposite parties?

4. Whether the complainant is eligible to get the reliefs and costs sought for?

Points (i) to (iv):- One of the main objections raised by the opposite parties is that the complaint is barred by limitation. Opposite parties issued the claim repudiation letter on 03.05.1999 (Ext. P6). The complainant filed O.P before the Hon'ble High Court on 06.09.2000 i.e; within the time and the Hon'ble High Court ordered the O.P on 22.07.2004 (Ext.P8). In the judgement it is clearly stated that the period the petition was pending shall be excluded. This complaint filed before this Forum on 02.09.2004 is within time.

Undisputed facts of the case are that the complainant had obtained an insurance policy under the Pravasai Suraksha Social Welfare Scheme from the opposite parties for the period from 05.04.1998 to 04.04.2003. As per this scheme an Indian employed in any foreign country if injured in any accident is entitled to get the compensation. While he was working as directional drilling machine operator in Saudi Arabia, complainant met with an accident on 19.10.1998. In that accident his four fingers of the right hand were very badly damaged and were amputed. The opposite parties repudiated the claim on the ground that as per the policy conditions the opposite party insurance company is liable to indemnify (1) death due to accident or (2) permanent total disablement due to accident or (3) loss of 2 limbs or 2 eyes or one limb and one eye due to accident and (4) loss of one limb or one eye due to accident. The compensation payable under (1) to (3) is Rs. 5 lakhs and under (4) is Rs. 2.5 lakhs. The opposite parties argued that loss of 4 fingers was not causes for permanent total disablement or loss of limb to get the benefit under the policy. The complainant argued that one finger itself is a limb, except four fingers the full purpose of an arm could not be performed. Dr. K.M. Thomas who is treating the complainant issued a certificate that the complainant is permanently disabled and may need prolonged analgesic drugs. As per the complainant he is entitled to get Rs. 5 lakhs under the insurance scheme.

In this case the complainant has produced 8 documents to prove his case. Ext. P1 is the copy of the enrolment form cum membership certificate. In the overleaf the terms and conditions of the scheme are printed. Ext. P2 is the true copy of the translation of the report from the hospital where the complainant's fingers were amputed. Ext. P3 is the copy of the letter of the Personal Manager, AJECT Company evidencing the fact that the complainant was involved in the accident while he was on duty. Ext. P4 is the copy of the letter dated 29.01.1999 sent by the opposite party. Ext. P5 is the copy of the letter submitted by the father of the complainant to the opposite parties. Ext. P6 is the copy of the repudiation letter dated 03.05.1999. Ext. P7 is the copy of disability certificate. Ext. P8 is the copy of judgement of Hon'ble High Court in O.P. No. 26291/2000 dated 22.07.2004.

In this case the complainant argued that one limb means one finger. For the loss of 2 fingers he is entitled to get Rs. 5,00,000/- as per the policy conditions. But as per the opposite parties one limb means one arm. For clarifying their statement they have produced pages of Stedman's Medical Dictionary and Websters Encyclopaedic Unabridged dictionary. As per Stedman's Medical Dictionary limb means 1. An extremity; a member; an arm or leg. 2. A segment of any jointed structure, anacrotic. 1. the ascending or an arterial pulse tracing. In the Websters Encyclopaedic Unabridged dictionary limb means 1. a part or member of an animal body distinct from the head and trunk, as a leg, arm or wing; the lower limbs, artificial limbs. 2. a large or main branch of a tree etc. In ordinary dictionary meaning limb is arm or leg. From the above discussion we conclude that limb means arm not finger. Hence the complainant is not entitled to get the benefit under the 3^rd and 4^th clause of the table or benefits of the scheme. Another contention of the complainant is that he is eligible to get the benefit as per clause 2 of the table i.e; permanent total disablement due to the accident. The complainant claims the benefit on the basis of the certificate issued by Dr. K.M. Thomas (Ext. P7). This certificate is not issued by the Medical Board and the complainant not turned up to examine the doctor before this Forum to prove the veracity of the document. Hence this document stands uncorroborated. Moreover the complainant himself admitted at the time of cross examination that he is still working in Saudi Arabia. “ഇപ്പോള്‍ ഞാന്‍ താല്‍ക്കാലികമായി Saudi-യില്‍ work ചെയ്യുന്നു. Watchman ആണ്.” From this deposition we can presume that he is not permanently disabled and he is still earning from his job. The learned counsel for the opposite parties referred to the decisions of Hon'ble National Commission reported in II(2003) CPJ 102 (NC) 1(2007) CPJ 230 (NC) which has been referred in the decision National Insurance Co. Ltd. Vs. Mahaprasad Pandey I(2008) CPJ 270, wherein it has been held that the disability must be total and permanent to claim disability benefits as has been referred to in above clause 2 of the policy. The opposite parties also produced the decision of National Commission in Ajay Kumar Vs. LIC of India cited as 2007(I) CPJ 230 (NC). In this case National Commission referred the decision in LIC of India Vs. Ramesh Chandra II(1997) CPJ 45(NC)=1997(2) CPR 8 (NC) wherein it is held that “The disability above referred to must be disability which is the result of an accident and must be total and permanent and such that there is neither then nor at any time thereafter any work, occupation, or profession that the life assured can ever sufficiently do or follow to earn or obtain any wages, compensation or profit. Accidental injuries which independently of all other causes and within 120 days from the happening of such accident result in the irrecoverable loss of the entire sight of both eyes or in the amputation of both hands at or above the wrists or in the amputation of feet at or above ankles, or in the amputation of one hand at or above the wrist and one foot at or above the ankle shall also be deemed to constitute such disability.”

From the decisions, it is clear that loss of 4 fingers do not constitute permanent disability. In this case the complainant is still working in Saudi Arabia. From the pleadings, evidences and documents of both the parties, this Forum is of the view that there is no unfair trade practice or insufficient service from the side of the opposite parties. The complainant in this case is not entitled to get the benefit under the scheme of Pravasi Suraksha benefit scheme. The complainant in this case is not permanently disabled and he did not lose his one limb. It is a fact that complainant has lost his four fingers,but as per the terms and conditions of the policy availed those are not covered as discussed above. It is the settled position that parties are bound by the terms and conditions. This Forum has no jurisdiction to go beyond the terms and conditions and make any alterations with regard to the harshness of any clauses therein. Hence the repudiation made by the opposite parties are legal and valid. Hence 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 day of 31^st March 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 342/2004

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Benoy P. Koshy

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of enrolment form-cum-certificate of membership.

P2 - Photocopy of medical certificate dated 21.10.1998 issued

by Hospital Director, Dr. S. Fakeeh Hospital.

P3 - Photocopy of certificate dated 01.12.1999

P4 - Photocopy of letter dated 29.01.1999.

P5 - Photocopy of letter dated 17.02.1999 issued to the

complainant by opposite party.

P6 - Photocopy of letter dated 03.05.1999 issued by opposite

party.

P7 - Photocopy of certificate dated 14.02.2000 issued by Dr.

K.M. Thomas.

P8 - Photocopy of judgement in O.P. No. 26291/2000 dated

22.07.2004.

III OPPOSITE PARTY'S WITNESS :

DW1 - Joy Joseph

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT