Date of Filing : 15/02/2019
Date of Judgement : 04/12/2023
Shri Subir Kumar Dass, Hon’ble Member
The complainant met with an accident on 19.07.2003 at his place of work i.e. factory of M/s. Flakt(India)Limited at Budge Budge Trunk Road, Maheshtala while performing his duty and in such accident he sustained injury in the left heap due to sudden skid on the floor. Thereafter complainant got admitted at ESI Hospital Budge Budge on 19.07.2003, subsequently at ESI Hospital Maniktala on 26.07.2003. He was discharged from ESI Hospital, Maniktala on 29.09.2003 with the advice of periodical check-up and further treatment. He got further treatment at the Out Patient Department(OPD) of ESI Hospital Maniktala on various dates starting from 01.11.2003 upto 31.08.2005. On the last date i.e. 31.08.2005, ESI Hospital Maniktala referred the complainant to SSKM Hospital for admission. The complainant got admitted but finally he was disabled permanently and lost his employment.
The complainant was a beneficiary under the claim of Group Janata Personal Accidental Policy issued by OP2 in the name of OP1 vide Policy No.475122000199/E/NO.47-30954 valid for the period between 08.09.2000 to 07.09.2003(mid night). As per the said Policy, the complainant was insured, along with other consequences against permanent total disablement for an overall sum of insurance of Rs.1,00,000/-. The complainant raised the claim on 04.10.2005 before OP2 as due to ignorance and want of proper guidance, he could not file claim earlier.
Thereafter, nos. of communications in different mode having been made before OP2 and OP1 but not being granted with the benefit of claim, the complainant filed one complaint before this Commission in 2009 being No.CC 100 /2009 which was duly disposed of by this commission by allowing on contest against OP No.2 to OP No.4 vide judgement dated 12.04.2010.
Thereafter OP2 to OP4 preferred an appeal before the Hon’ble SCDRC West Bengal vide FA No.428 of 2010 and the said appeal was allowed providing liability vide Order dated 11.08.2011 to the effect that the complainant would be entitled to make a fresh claim if he is still entitled to do so, on the basis of any document and/or medical certificate showing that he is suffering permanent disability in such accidental injury.
Thereafter the complainant was under continuous treatment for prolonged period but his illness got aggravated Finally on examination, he was issued with certificate of disability, permanent in nature showing permanent physical impairment of 75% by the Office of the Medical Superintendent cum Vice Principal, Calcutta National Medical College and Hospital on 05.10.2018.
Thereafter with the privilege of the liberty given by Hon’ble SCDRC West Bengal vide Order dated 11.08.2011, the complainant files the instant claim before this commission praying for relief , compensation and cost of litigation.
OP1 & OP2 contested the case by filing written version but OP3 & OP4 did not contest at all, thus the case proceeded ex parte against OP3 & OP4.
OP1 in his written version declared that complainant was a field worker of OP1 during the material period and mentioned that OP1 was only a facilitator whereas OP2 issued the Policy Certificate only after premium was received by them on verification of the status of the Proposer after proper scrutiny with their full satisfaction. They further mentioned that they are not agent of OP2, they only acted as facilitator in the said group (Janata Personal Accidental Insurance Policy). Though they did not admit their responsibility to make payment of claim to the complainant, but they supported the claim, which in their opinion falls against OP2.
OP2 in their written version made certain allegations with respect to the complaint being barred by the limitation, the content of disability certificate not qualifying the complainant to claim under the said insurance policy as such disability, as mentioned in the said Policy, from Clause 1.0 to 3.1.
OP2 further stated that on the date of issuance of the Insurance Policy the insurance coverage as per the MOU executed between OP1 & OP2 was to cover (i) Investor (i) their family members (iii) Field workers (iv) their family members only. They also stated that in terms of order dated 06.07.1999 of Hon’ble High Court in WP No.1144 of 1999, OP1 was directed not to collect any premium from the categories of FRIENDS, as mentioned in the said policy from 06.07.1999 until the matter is heard.
They also contended that the complaint being a worker in M/s. Falkt (India) Limited wherein he met with the accident, cannot be considered as field worker of OP1. For that OP2 requested OP1 and the complainant to disclose the status of the certificate holder in detail along with documentary evidence at the time of consideration of settlement of the claim filed by the complainant. Since no reply was received from any of them, OP2 states that question of settlement of claim did not arise at all. Finally they stated that they are not liable to pay any amount towards the settlement of the claim, if there remains any liability that would be with OP1 only as the claim stands settled on the part of the OP2 as repudiated and was treated as closed due to belated submission as well as failure on the part of OP1 and the complainant to establish the status of the certificate holder.
POINTS TO BE DECIDED :
Whether the complainant is entitled to get relef(s).
DISCUSSIONS AND FINDINGS
The complainant and the contesting OPs (OP1 & OP2) filed Affidavtt-in-Chief and also Brief Notes of Argument. We have meticulously gone through the materials on record and examined the documents filed by both the parties at different stages of the proceedings on application of our mind.
Since the earlier complaint case No.CC 100 /2009 was adjudicated by this commission and finally the judgement passed by this commission on 12/04/2010 was set aside by Hon’ble SCDRC/West Bengal vide Order dated 11.08.2011 in F.A. No.428 of 2010; we should concentrate our discussions from the period 11.08.2011 onwards.
We find OP1 acknowledged the complainant as Field Worker of them during the materials period. They also confirmed that after passing of order dated 06/07/1999 in WP No.1144 of 1999 by the Hon’ble Calcutta High Court, they have stopped collection of premium from persons falling under the category of ‘Friends’. They also contended that OP2 issued the insurance policy on receipt of the premium and on being satisfied with the status of the complainant.
Thus, according to OP1, it is the liability of OP2 to settle the claim by paying the amount of sum insured.
On the other hand the OP2 through their submission in written version, evidence raised various points by claiming the instant complaint case being barred by limitation as well as content of the disability certificate not being matched with the condition mentioned in the said insurance policy from Clause 1.0 to 3.1, the complaint case needs to be dismissed. They also submitted though OP1 acknowledged the complainant as field worker, the fact on record shows that complainant was a worker of M/s Flakt (India) Limited thereby not a field worker of OP1. Thus by going against the Order dated 06/07/199 of Hon’ble Calcutta High Court in WP No.1144 of 1999, OP1 has collected the money from the complainant and thereby OP2 is not any way responsible for honouring the Insurance Policy as both OP1 and claimant needed to establish the status of the beneficiary i.e. the complainant.
We find that multifold discussions on the point raised by the contesting OPs as well as by the complainant is to take place before reaching finality in this case.
Whether the complainant is barred by limitation - It is seen that Hon’ble State Commission while setting aside the order of this commission vide order dated 11.08.2011 in FA 428 of 2010 awarded Leave to the complainant to make fresh claim on the basis of document and/or medical certificate showing that he has suffered permanent disability for such accidental injury. It is to be noted that while awarding the leave, Hon’ble State Commission did not fix any time /deadline for making such fresh claim. At the same time by inserting the wordings “on being he is still entitled to do so” the Hon’ble State Commission left the issue open for decision by this commission with respect to entitlement of the complainant for filing such complaint. It is pertinent to mention that this issue was already considered at the time of admission of the complaint. Moreover throughout the proceedings, none of the OPs filed any petition challenging maintainability of the complaint. Thus at this point a discussion though found to be not necessary but taken up for the sanctity of justice. On examination of the documents filed by complainant with respect to his treatment at different ESI Hospitals and Calcutta National Medical College and Hospital, it is established that the complainant was under continuous treatment during the materials period i.e. date of passing order by Hon’ble SCDRC West Bengal to the date of issuance of disability certificate by the MSVP Calcutta National Medical College & Hospital i.e. 05/10/2018. To be more elaborate it is found that the complainant is under continuous treatment from the date of the occurrence of the accident i.e. 19.07.2003 till the present period. Since the suffering of the complainant recurred and continued throughout the period, we are of the opinion that the cause of action remained continuous in nature. Hence the point of being barred by limitation does not arise in this case at all.
Alleged mis-matching of the content of disability certificate with the content of condition mentioned in the insurance policy – While examining the insurance policy we find that permanent total disability is mentioned at Clause 1.1 of heading “Benefit” of “Terms and Conditions” without assigning any definition to it. Now on examination of the Disability Certificate No.406 dated 05/10/2018 issued by the Office of the MSVP Calcutta National Medical College & Hospital, we find that the complainant suffers from multiple disability with 67% of permanent physical impairment with respect to locomotor disability in left heap and 30% permanent physical impairment of blindness in both eyes; collectively certified as having an overall permanent physical impairment of 75%.
It is also mentioned that his condition of permanent physical impairment is of progressive nature which means the status of disability is expected to enhance in course of time.
Now while comparing the wordings , we find that total permanent disability is a state when a person is unable to work due to bodily injuries (such as loss of limbs, eye sight, speech etc..) caused by an accident. Thus total permanent disablement means the bodily injury which totally, irrecoverably and progressively prevents one from engaging in any kind of occupation. It is a fact on record that the complainant lost his job after meeting with the accident. His continuous suffering started with the occurrence of the accident and continues till date. Further the permanent physical impairment being certified as 75% and that too of progressive nature, we find for this case the stage of total permanent disablement is very well reached and refusal of settling the claim by the OP2 on the flimsy ground of non matching of the wordings is not found to be tenable at all. We find that Hon’ble Supreme Court of India in Civil Appeal No.4228 of 2023 dated 05/07/2023 has clarified that the injuries which are permanent in nature apparently make one unfit of any employment, though the disability may be 60% or 85% , makes it impossible for a person to work and to gainfully employed considering the nature of disability , loss of income is held to be 100%.
Further taking note of the continuity of suffering of the complainant from the date of occurrence of the accident till issuance of disability certificate dated 05/10/2018, we find it is established that the permanent disability certified on 05/10/2018 is very much result/outcome of the accident caused and thus found consequent to and relatable to the said accident in full.
Now it is time to discuss whether the deficiency in service flowed from any particular OP or all the OPs.
- Regarding OP1 – It is fact that OP1 was acting on the basis of MOU executed between OP1 & OP2. OP1 was entrusted with the job of collection of premium from the individual insured person and transmission of the same to the OP2. Since OP1 claims that his job is of a facilitator, the individual insured person knows them as acting on behalf of the insurance company, they can not simply deny the service to the insured person with respect to submission and settlement of claim. For that reason, they have forwarded the claim petition and subsequent requests of the complainant to OP2. But while the order of the Hon’ble High Court dated 06/07/1999 in WP No.1144 of 1999 was very much in force how and under what authority OP1 collected the premium of the complainant who was a worker of M/s Falkt (India) Limited, and also under what capacity OP1 engaged the complainant as their Field Worker have not been explained by OP1. Apart from that OP1 also cannot deny his failure to send the reply to OP2 confirming the status of the complainant. Thus deficiency in service also very much occurs on the part of OP1 in extending the proper facilitation to the complainant in getting his claim settled.
- Regarding OP2 – Though OP2 submitted that since OP1 collected the premium from an individual person who does not fall in the category of (i) Investor (i) their family members (iii) Field workers (iv) their family members – and OP1 having been restrained from collecting any premium from the category of ‘friends’ in terms of the order dated 06/07/1999 of Hon’ble Calcutta High Court, the question with respect to settlement of claim does not arise at all on their part. But we find that the OP2 has issued the Policy Certificate No.475122000199/E/NO.47-30954 covering the name of the complainant as beneficiary effective from 08.09.2000 to 07.09.2003(mid night). Hence it remains the fact that OP2 on receiving the premium paid by the complainant through OP1 has issued the policy certificate. As a responsible business house, OP2 had the duty and responsibility to check, verify, examine the status of the beneficiary at the point of receipt of premium and issuance of insurance certificate so as to ensure that person who is not eligible to get insurance policy coverage, is not issued with the certificate. Thus by acceptance of premium followed by issuance of certificate, OP2 has agreed to accept the complainant as a lawful insured person and thereby agreed to undertake the responsibility of compliance by way of settling the claim, if arises without putting any question with respect to the status of the individual insured person at the point of time of settling the claim. Thus the intent of shifting the responsibility on OP1 by OP2 cannot immune OP2 from discharging the liability in terms of the agreement OP2 signed in the form of Policy of Insurance Certificate on receipt of the premium from the individual insured person. Accordingly the allegation of deficiency in service against OP2 stands strongly established.
- Regarding OP3 & OP4 – though OP3 & OP4 did not contest the case but since OP3 is Chairman cum Managing Director of OP2 & OP4 is Regional Manager of OP2; both of them are found jointly and severally responsible for the deficiency in service in terms of the discussion herein before.
Thus the complainant is found to be successful in establishing his case and thereby entitled to relief.
Hence it is
ORDERED
CC No.96/2019 is allowed ex parte against OP3 & OP4 and on contest against OP1 & OP2 with cost.
- OP2 to OP4 are jointly and severally directed to pay Rs.1,00,000/- towards the settlement of Policy No.475122000199/E NO.47 – 30954 along with interest @9% p.a. from the date of last letter issued by them to the complainant i.e. 16/02/2006 till date of actual payment to the complainant within 60 days from the date of this order.
- OP2 to OP4 are also directed to pay jointly and severally Rs.1,00,000/- to the complainant towards the compensation and Rs.20,000/- towards cost of litigation within 60 days from the date of this order.
- Cost of Rs.50,000/- is imposed upon OP1, 50% of which shall be paid to the complainant and remaining 50% to the legal aid A/c. of this commission by the OP1 within 60 days from the date of this order.
If the OPs fail to make above payment within the stipulated period, the complainant will be at liberty to file case execution at per law.
As dictated and corrected by
Member
