BEFORE THE CIRCUIT BENCH A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT VIJAYAWADA

F.A.No.1022 OF 2011 AGAINST C.C.NO.228 OF 2009 DISTRICT FORUM GUNTUR

Between

K.Siva Vara Prasad S/o Hanumantha Rao
aged about 24 years, Survarapupalli Village
Yeddanipudi Mandal, Prakasam District
Now R/o C/o A Suresh, Kothapet
Head Post Office, Guntur

                                                        Appellant/complainant

        A N D

The Manager
Bajaj Allianz General Insurance Co.,Ltd.
7/1 Arundalpet, Guntur.

Respondent/opposite party

Counsel for the Appellant                      M/s V.Goursankara Rao

Counsel for the Respondent                   Sri N.Mohan Krishna

QUORUM:   SMT M.SHREESHA, HON’BLE MEMBER

                                                AND

        SRI S.BHUJANGA RAO, HON’BLE MEMBER

                      FRIDAY THE TWENTY NINETH DAY OF JUNE

                                 TWO THOUSAND TWELVE

Oral Order (As per Smt M.Shreesha, Hon’ble Member)

                                                        ***

1.            Aggrieved by the order in C.C.No.228 of 2009 on the file of District Forum, Guntur the complainant filed this appeal.

2.             The brief facts as set out in the complaint are that the complainant is the owner/driver of the vehicle bearing NO.AP 16 TU 7656 and insured the same with the opposite party under policy No.OG-09-1815-1803-00000212 for the period from 25.4.2008 to 24.04.2009 for a sum of  `2,00,000/-. On 26.7.2008 due to failure of the brakes, the said vehicle ran into a canal in between Chadalavada and Rachapudi Villages of Prakasam District as a result of which the complainant sustained injuries to his spinal cord and was shifted to GG Hospital Ongole.  Later, at the request of the complainant he was shifted to Sai Bhaskar Multi Specialty Hospital Guntur.  He underwent a major surgery to his spinal card and was treated as an inpatient till 12.08.2008.  The complainant incurred more than Rs.2 lakhs towards his treatment.  Due to the injury to his spinal card both his legs were paralyzed.      On 19.8.2008 the complainant claimed Rs.2 lakhs under personal accident claim.  The opposite party neither settled the claim of the complainant nor repudiated his claim.  Hence, the complaint seeking direction to the opposite party to pay  `2,00,000/- towards personal accident claim along with compensation and costs.

3.                     Opposite party filed counter admitting that the complainant has insured his vehicle vide policy bearing OG-09-1815-1803-00000212 for the period from 25.4.2008 to 24.04.2009 for a sum of  `2,00,000/-. On receipt of claim intimation the opposite party settled the claim regarding vehicle damage.  The personal accident cover issued to the complainant covered death or loss of two limbs or loss of sight of both eyes or one limb or one eye or hundred percent permanent total disability.  The complainant suffered only fractured injuries which the policy did not cover.    The opposite eparty is neither negligent nor careless in attending to the claim of the complainant. 

4.              Based on the evidence adduced i.e., Exs.A1 to A7 by the complainant and Exs.B1 to B3 by opposite party and Ex.C1, the District Forum dismissed the complaint.

5.              Aggrieved by the order of the District Forum, the complainant preferred this appeal.

6.              It is the appellant/complainant’s case that he had taken personal accident cover for owner-cum-driver for `2 lakhs by paying additional premium of `100/- as evidenced under Ex.A3 for the period from 25.4.2008 to 24.4.2009.  While so on 26.8.2008 the complainant was driving the vehicle and it ran into a canal and because of the accident he suffered severe injuries  and was shifted to GG Hospital by 108 vehicle and was treated as inpatient for 12 hours and later shifted to Sai Bhaskar Multi Specialty Hospital Guntur where he underwent major surgery on his spinal cord and was treated as inpatient upto 12.8.2008 which is evidenced under Ex.A5 discharge summary of the said hospital.  It is the appellant’s case that he has permanently disabled and his two legs are paralyzed  and he is owner-cum-driver having valid driving license and when he made claim to the opposite party on 19.8.2008, the opposite party did not respond.  It is the case of the respondent/opposite party that referred to section 4 of the policy conditions wherein the complainant should have 100% permanent disability whereas his disability only shows 70%. 

7.             Ex.B1 is the policy wherein Section IV shows as under:

Section IV:  Subject otherwise to the terms, exceptions conditions and limitations of this policy, the company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner/driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or traveling in the insured vehicle as co-driver, caused by violent accidental external and visible means which independent of any other cause shall within 6 calendar months of such injury result in:

8.                     We observe from the record Ex.A1 that the vehicle is registered in the name of the complainant herein who is the owner-cum-driver and the FIR Ex.A6 evidences the accident and the discharge summary Ex.A5 evidences the injury.  The learned counsel for the appellant drew our attention to the certificate issued by the Chairman, Regional Medical Board, Government General Hospital, Guntur that the complainant is suffering from permanent partial disability of 70%.  Keeping in view his occupation, that is, the complainant is the owner-cum-driver of the Tata AG Magic and he is a driver by profession who has become paraplegic and cannot used both his legs which is of utmost importance for driving a cab, this disability is construed  100% as disability as ‘permanent Total disablement from injuries’.  Even otherwise section 4 last column reads as “permanent total disablement from injuries other than named above – scale of compensation 100%.  This condition nowhere states that the disablement should be 100% whereas in the accident cases the accident is not in dispute and the 70% permanent disability is also not disputed.  The contention of the opposite party that the disability should be 100% in such a case is unsustainable keeping in view their condition No.4 which reads as above.  In the instance case, the complainant falls under condition No.4 and the non-settlement of the claim by the opposite party amounts to deficiency in service and therefore we allow this appeal and set aside the order of the District Forum directing the opposite party to pay the personal accident benefit of `2 lakhs with interest at 9% per annum from the date of claim till the date of realization together with costs of `3,000/-

9.             In the result this appeal is allowed by setting aside the order of the District Forum.  Consequently the complaint is allowed directing the opposite party to pay `2,00,000/- to the complainant with interest @ 9% per annum from the date of claim till the date of realization together with costs of `3,000/-.  Time for compliance four weeks.

                                                                                MEMBER

                                                                                MEMBER

                                                                             Dt.29.06.2012

KMK*