DATE OF FILING : 18.10.2010
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 28th day of February, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.SHEELA JACOB MEMBER
SMT.BINDU SOMAN MEMBER
C.C No.224/2010
Between
Complainant : Muraleedhran Nair T.R.,
S/o Ramakrishnan Nair,
Karimattathil House,
Vengalloor P.O.
Thodupuzha, Idukki District.
(By Advs: K.T. Thomas
& Prince J. Pananal)
And
Opposite Party : The Manager,
National Insurance Co. Ltd.,
Thodupuzha Branch,
Thodupuzha P.O.,
Idukki District.
(By Adv: Thomas Sebastian)
O R D E R
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
The complainant is the registered owner of the 'Bajaj Boxer' motor cycle bearing No.KL-06 A 4324. The vehicle was insured with the opposite party vide package Policy No.570801/31/06/6200007125 valid from 4.11.2006 to 3.11.2007. The opposite party has collected Rs.438/- under various heads in the policy schedule. As per the schedule of premium it is understood that opposite party has collected Rs.50/- towards the compulsory PA to owner-driver, for an amount of coverage upto Rs.1,00,000/-. Being so on 23.7.2007, while the complainant was driving the said vehicle through Thodupuzha-Udumpannoor road, it was accidentally hit on a pedestrian, at 11 am, at Kurumbalamattom and thereby the complainant and the pedestrian, one Mrs. Rosa Mathew, fell down on the road and sustained serious injuries. Eventhough the Karimannoor Police registered a criminal case against the complainant in the incident, he was acquitted in the same on 24.1.2009, vide judgement in CC No.867/07 of the JFCM Court No.1, Thodupuzha on a finding that, no negligence has been proved by the prosecution in the said accident from complainant's part. The complainant was treated in Holy Family Hospital, Muthalakkodam and in Chazhikkattu Hospitals Pvt. Ltd., Thodupuzha from 25.07.2007 to 07.09.2007. The total expenses for his treatment is Rs.17,768/-. Since the complainant was suffering from fracture of lateral end of right clavicle and contused abrasion on the right shoulder, he couldn't attend for his job, as an Overseer in PWD Department, Karimannoor Road Section, for a considerable period. The complainant had suffered with much pain and hardship due to the accident. Moreover 14% of permanent disability caused to the complainant due to the said injuries. The treatment expenses caused is Rs.17,768/-, loss of earnings Rs.6,000/-, compensation for pain and sufferings Rs.20,000/-, bystanders expenses Rs.5,000/-, compensation for disability
(cont....2)
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Rs.60,000/-, compensation of loss of amenities in life Rs.10,000/- and travelling expenses Rs.2,000/- are claimed by the complainant in various heads. The opposite parties are liable to pay a compensation of Rs.1,00,000/- since they have collected an amount towards compulsory premium for the P.A. Coverage of owner-driver. The complainant requested for the claim at the opposite party, but the opposite party has not made any reply to the complainant. After approaching the opposite party several times for a reply to the request, the complainant issued a legal notice to them on 18.5.2010. The opposite party received the notice on 19.5.2010 and gave a reply through their counsel on 3.6.2010 with baseless contentions. The opposite party was collected the compulsory premium amount towards the risk of personal accidents of the owner-driver, so they are liable to compensate the complainant. The refusal of the claim is a deficiency of the opposite party and so the petition is filed for getting compensation of Rs.1,00,000/- for the injury sustained to the complainant.
2. As per the written version filed by the opposite party, it is admitted that the opposite party issued a policy bearing number 570801/31/06/6200007125 to the complainant in respect of motor cycle bearing Reg.No.KL-6A-4324. It is true that a premium of Rs.50/- was collected towards compulsory PA to owner-driver for an amount of coverage upto Rs.1,00,000/- subject to the terms, conditions, exclusions and definitions in the policy. The alleged accident occurred due to negligence of the complainant. The complainant was driving the motor cycle in rash and negligent manner at high speed at the time of accident. In respect of alleged accident, the police registered a case and after investigation the police charged the driver of the complainant for offence under section 279, 337 and 338 of Indian Penal Code. The allegation that 14% of permanent disability caused to the complainant due to the injuries sustained in the alleged accident is not correct. The complainant has not sustained any injuries in the alleged accident to make him permanent total disablement. The complainant has not suffered permanent total disablement or loss of limb or sight of eye. As per Section III in the conditions of policy, this opposite party is not liable to compensate the complainant under Personal Accident cover for owner-driver. As per section III in the conditions of the policy, the owner-driver is entitled to get compensation as per the scale mentioned in policy for bodily injury, sustained by him, which results in death or loss of limb or sight of eye or permanent total disablement from injuries within six calender months of such injury. In order to get compensation under Personal Accident cover for owner-driver, following conditions are to be satisfied:-
1. He must sustain bodily injuries which reslut in death or loss of limb or sight of eye or
permanent total disablement from injuries,
2. Within six months of such bodily injuries, it must result in his death or loss of limb or
sight of eye or permanent total disablement from injuries, and
He must be registered owner of the insured vehicle and insured named in the policy
and he must have effective driving licence to drive the insured vehicle.
The complainant has not sustained with the above said conditions. 14% of permanent disability is only permanent partial disablement but not a permanent total disablement. The alleged 14% of permanent disability resulted in after 20 months of the injuries. So he is not entitled to get compensation under Personal Accident cover for owner-driver. The opposite party received the complainant's letter dated 23.7.2009 regarding the intimation of claim under Personal Accident cover for owner-driver. The intimation letter dated 23.7.2009 is given only after 2 years of the occurrence. The intimation is a delated one. When the opposite party received the above said letter, the opposite party informed the complainant that he is not entitled to get compensation under
(cont.....3)
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Personal Accident cover for owner-driver as per Section III in the conditions of the policy. So the opposite party has disclaimed the liability on 23.7.2009. Hence the petition is liable to be dismissed.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite party, and if so, for what relief the complainant is entitled to?
4. The evidence consists of oral testimony of PW1and Exts. P1 to P11(series) marked on the side of the complainant and the oral testimony of DWs 1 and 2 and Exts. R1 and R2 marked on the side of the opposite parties.
5. The POINT :- The complainant deposed as PW1. The insurance policy of the complainant is marked as Ext.P1. The policy was issued as a package policy number 570801/31/06/6200007125 and an amount of Rs.438/- was paid by the complainant at the time of availing the policy. In that amount, Rs.50/- was received by the opposite party for the coverage for the complainant who is the registered owner of the vehicle and total insurance amount was Rs.1lakh, it is also written in the policy schedule certificate. While PW1 was driving the vehicle on 23.7.2007, a pedestrian jumped in front of the vehicle suddenly, so the vehicle hit on her. So the accident was caused and serious injury was sustained. Even the Karimannoor Police registered a criminal case against the complainant in the incident, he was acquitted on 24.1.2009, vide judgement in CC No.867/07 of the JFCM Court No.1, Thodupuzha on a finding that, no negligence has been proved by the prosecution in the said incident from the complainant's part. Copy of the judgement is marked as Ext.P2. The complainant was admitted in Holy Family Hospital, Muthalakkodam and then he was treated in Chazhikkattu Hospitals Pvt. Ltd., Thodupuzha and an amount of Rs.17,768/- was paid as treatment expenses. Copy of the treatment certificate dated 18.7.2009 is marked as Ext.P3 and copy of the medical certificate is marked as Ext.P4. The complainant who is working as an Overseer in PWD Department was not able to attend his duty for a long time after the accident. The complainant caused a permanent disability of 14% and the certificate issued from the Taluk Head Quarters Hospital, Thodupuzha, stating the same is marked as Ext.P5. Though the complainant filed a claim to the opposite party on 23.7.2009, after getting disability certificate, the opposite party never gave any reply to the complainant. So a lawyer's notice was issued on 18.5.2010. It is received by the opposite party and a reply was issued, copy of the reply notice is marked as Ext.P8. Copy of the driving licence of PW1 is marked as Ext.P9. The complainant has availed leave for a long time because of the accident and the certificate stating the same is marked as Ext.P10. Copy of the letter claiming the policy amount is marked as Ext.P6. On cross examination of the learned counsel for the opposite party, the complainant replied that he got compensation for the damage caused to the vehicle, from the opposite party. The opposite party examined as DW1 and the policy conditions are marked as Ext.R1. DW1 was working at Thodupuzha Branch. The conditions of the policy are also issued with the policy. The complainant is not having permanent disability for 100% and so the complainant is not liable for getting the claim as per the Clause 3 of the policy condition. The policy conditions are issuing from the Regional Office and in order to know the total number of the policy condition issued from the Regional Office, they have to verify the policy stationery register. On perusing policy issuing register, we can understood the number of policy issued from the office. By perusing the stock register, it can be seen that how many policy conditions are kept balance after issuing the policy. If the policy conditions are not sufficient, the photo copies of the conditions are taking by local. In order to know the number of the conditions taken in the photo copy, charges will show the same. It is also written in the policy itself that the policy terms and conditions are
(cont.....4)
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applicable. DW1 is the then manager of the opposite party at the time of issuing the policy. The policy conditions are issuing with the policy itself. The number of the policy can be known from the computer, that is written in the document issuing register. It can also known from the system that how many policy conditions are left balance and regional office is dealing with the matter. The policy was received by the complainant directly from the opposite party and written receipt has been received by the complainant. The policy conditions are the part of the policy and there is no separate register for policy and conditions. The conditions are with the policy itself.
As per the complainant, the complainant sustained injury due to an accident on 23.7.2007 and at the time of availing the policy for his motor cycle, the opposite party collected a premium of Rs.50/- under Personal Accident cover for owner-driver and the amount for the same as Rs.1 lakh. Here the complainant sustained serious bodily injury and the amount calculated in the various heads by the complainant are, treatment expenses, Rs.17,768/-, loss of earnings Rs.6,000/-, compensation for pain and sufferings Rs.20,000/-, bystanders expenses Rs.5,000/-, compensation for disability Rs.60,000/-, compensation of loss of amenities in life Rs.10,000/- and travelling expenses Rs.2,000/-. So he is liable to get the claim amount of Rs.1 lakh. He was acquitted from the JFCM Court stating that the accident caused is not because of the negligence of the complainant. As he is a Government employee he was not able to attend his office and serious loss has been sustained to him. It is admitted by the opposite party that the opposite party collected a premium of Rs.50/- to cover owner-driver for an amount of coverage upto Rs.1,00,000/- subject to the terms, conditions, exclusions and definitions in the policy. As per the clause 3 of the policy condition, the owner-driver is entitled to get compensation as per the scale mentioned in policy for bodily injury, sustained by him, which results in death or loss of limb or sight of eye or permanent total disablement from injuries within six calender months of such injury. In order to get compensation under Personal Accident cover for owner-driver, the following conditions are to be satisfied:-
1. He must sustain bodily injuries which reslut in death or loss of limb or sight of eye or
permanent total disablement from injuries,
2. Within six months of such bodily injuries, it must result in his death or loss of limb or
sight of eye or permanent total disablement from injuries, and
He must be registered owner of the insured vehicle and insured named in the policy
and he must have effective driving licence to drive the insured vehicle.
The complainant has not satisfied with the above said conditions. 14% of permanent disability is only permanent partial disablement but not a permanent total disablement. The alleged 14% of permanent disability resulted in, after 20 months of the injuries. So he is not liable for getting compensation under Personal Accident cover for owner-driver. The other contention of the complainant is that the opposite party never issued policy conditions to the complainant.
But as per the opposite party, the complainant has already received the compensation for damage sustained to his vehicle without any dispute. At the time of receiving the amount, he never disputed about policy conditions issued to the complainant. He received the claim without any dispute and at the time of receiving the claim, he never claimed any compensation for the injury happened to him. As per the opposite party the complainant claimed for the insurance amount for his injury sustained only on 23.7.2009, after about 2 years of the alleged accident and a long delay of about 2 years has been caused in the request of claim. There is no evidence produced by the complainant to show that he is claimed before 2 years. If he sustained serious injuries and the policy conditions were not received by him, he ought to have claimed the amount at the earliest.
(cont....5)
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The contention of the complainant is that, he received the permanent disability certificate only after a long delay and so that is the reason for the delay caused for filing the claim before the opposite party. But the version of the complainant is not at all believable. The complainant already received compensation for his vehicle and at that time he never filed any claim for getting compensation for his injury. If he was having such serious contention that he never received the policy conditions, he ought to have disputed about the same at that time itself. Here the complainant claimed the insurance amount only after a long period of about 2 years and as per the Section III of the policy conditions, he is not at all liable to get the claim. So we think that the complainant who is a Government servant who may have received the medical reimbursement from the department and that may be the reason for the delay in filing this claim. This petition may have filed on an experimental basis after a long period. As per Section III of the policy conditions, the complainant is not liable for getting the claim.
Hence the petition dismissed.
Pronounced in the Open Forum on this the 28th day of February, 2011
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
SMT. SHEELA JACOB (MEMBER)
SMT.BINDU SOMAN (MEMBER)
(cont.....6)
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APPENDIX
Depositions :
On the side of the Complainant :
PW1 - Muraleedharan Nair.
On the side of the Opposite Party :
DW1 - G. Suresh
DW2 - M.J. Joseph
Exhibits :
On the side of the Complainant :
Ext.P1 - Copy of the Insurance Policy.
Ext.P2 - Copy of the judgement in CC No.867/07 of JFCM Court, Thodupuzha,
dated 24.1.2009.
Ext.P3 - Copy of the treatment certificate of the complainant issued from Holy Family
Hospital, Thodupuzha, dated 18.7.2009.
Ext.P4 - Copy of the Medical Certificate issued from Chazhikattu Hospital,
dated 14.5.2008.
Ext.P5 - Copy of the Certificate issued from the Taluk Head Quarters Hospital,
Thodupuzha, dated 16.7.2009 stating the disability of the complainant.
Ext.P6 - Copy of the letter given by the complainant to the opposite party
dated 23.7.2009.
Ext.P7 - Copy of the legal notice issued by the complainant to the opposite party
dated 18.5.2010.
Ext.P8 - Copy of the reply notice issued by the opposite party dated 3.6.2010.
Ext.P9 - Copy of the driving licence of the complainant.
Ext.P10 - Certificate issued by the A.E of PWD Roads Section, Karimannoor
dated 20.1.2011.
Ext.P11(series) - List of medical bills for a total of Rs.17,184/- - 10 Nos.
On the side of the Opposite Party :
ExtR1 - Certificate of the insurance of the vehicle.
Ext.R2 - Copy of the reply notice issued by the opposite party dated 3.6.2010 to the
complainant.
