BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENA KUMARI .A : MEMBER
SMT. S.K. SREELA : MEMBER
C.C. No. 136/2006 Filed on 02/05/2006
Dated: 16..02..2011
Complainant:
Janardana Iyer, S/o Ramaswamy Iyer, TC.22/747, Gokulam, Attukal, Manacaud – P.O., Thiruvananthapuram.
(By Adv. V. Muraleedharan Pillai)
Opposite party:
The New India Assurance Co. Ltd., Annasalai, Chennai.
(By Adv.V.K. Anil Kumar)
This O.P having been heard on 15..12..2010, the Forum on 16..02..2011 delivered the following:
ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that, complainant on 27/02/2006 while travelling in his scooter bearing Reg.No.KL.01/Z-3937 Honda Activa from Kalady to Kalladimukom through the Kalady East Fort Public road, his scooter skidded on the road and he sustained fracture on the left ankle and sustained injuries, that he was treated as out patient at B.N.V Hospital, Thiruvallam and applied plaster on his leg and plaster was removed on 11/3/2006 and thereafter applied bandage and continued treatment, that the said accident caused him pain, suffering and mental agony and he became permanently disabled, that at the time of accident his vehicle had a valid policy with personal accident coverage with the opposite party – New India Assurance Company Ltd., that complainant filed claim petition to opposite party but opposite party has not taken any steps in the application. Hence this complaint to direct opposite aprty to pay compensation of Rs. 1,50,000/-.
2. Opposite party filed version contending that opposite party has no knowledge about the accident and fracture sustained to the complainant and treatment undergone by him, that opposite party denies the accident, that there is no sort of disability sustained to the complainant, that policy particulars are not available to the opposite party, that complainant has to put to strict proof with respect to the accident and injury.
3. The points that arise for consideration are:
Whether there is deficiency in service on the part of opposite party?
Whether the complainant is entitled to get claim amount and compensation, If so at what quantum?
Whether the complainant is entitled to get cost?
In support of the complaint, complainant has filed affidavit as PW1 and has marked Exts. P1 to P11. One witness from complainant's side has been examined as PW2. In rebuttal, the opposite party has filed affidavit, but opposite party has not turned up for cross examination.
4. Points (i) to (iii): It has been the case of the complainant that on 27/2/2006 while travelling in his Scooter bearing No. KL-01/Z-3937 Honda Activa from Kalady to Kalladimukom through Kalady-East Fort Public Road, his scooter skidded on the road that he sustained fracture on left ankle and sustained injuries, that he was treated as out-patient at B.N.V Hospital and applied plaster on his leg, and plaster was removed on 11/3/2006 and thereafter applied bandage and continued treatment. It has been contended by the complainant that the said accident caused him pain and suffering and mental agony and became permanently disabled. It has also been the case of the complainant that he is aged 55, working as the Head Clerk at BSNL Office, Chalai and he had to avail continuous leave for 20 days. It is submitted further that his vehicle had a valid policy with personal accident coverage with opposite party and that though a claim was filed to opposite party, no action was taken by them. The stand took by the opposite party in their version is, that they had no knowledge about the accident and fracture sustained to the complainant and treatment undergone by him, that no sort of disability was sustained to him and that the policy particulars are not available to the opposite party. It is further averred in their version that complainant has to put to strict proof with respect to the accident. Ext. P1 is the accident certificate issued by City Traffic Police Station, Thiruvananthapuram. It appears from Ext. P1 that complainant met with accident by skidding his scooter at 5.30 P.M on 27/2/2006 near Kalladimukkom junction. Ext. P2 is the Treatment Certificate issued by B.N.V Hospital. As per Ext. P2 it is seen that the complainant had been under out-patient treatment from 27/2/2006 to 27/3/2006 at B.N.V Hospital. Ext. P3 is the Salary Certificate issued by BSNL showing his total pay and allowances as Rs. 14,400/-. Ext. P4 is the Certificate issued by Assistant General Manager, BSNL showing that the complainant has availed commuted leave on M/C for 28 days with effect from 28/2/2006 to 27/3/2006 and had rejoined duty on the FN of 28/3/2006. Ext. P5 is the Good Health Policy Certificate issued by the opposite party. On perusal of Ext. P5 it is seen that the Cert. No. is 712500/07448/GHSEP 2005. It is seen stated therein Ext. P5 that the Certificate is issued based on the application made by the Citibank Card Member / Account holder, in the manner specified above in respect of self and / or family members and / or employees and such application shall be the basis of the contract of insurance. A perusal of Ext. P5 would show Card/Ac/No: 5546199565533007, PA Policy No: 712500420500006, MC policy No. 712500480500006, Period of Insurance: 1/9/2005 to 31/8/2006, Mode of application: Over phone, Name of insured person / customer ID: 1) Janardhana Iyer. R 20050916303, 2) S. Jayalakshmy 20050916304 and Gokul. S 20050916305. It is further seen in Ext. P5 that the sum insured by each insured under PA Policy is Rs. 2 lakhs each. Ext. P6 is the copy of the Medical Certificate dated 1/3/2006 issued by Orthopaedic Surgeon, BNV Hospital. Ext. P7 series include medical bills for Rs. 1435/- issued by B.N.V Hospital. Ext. P8 is the Certificate of disability issued by Dr. J.R Jagajeev. Ext. P9 is the statement dated 29/11/2006 issued by the Citibank for the period from 29/10/2006 to 28/11/2006 to complainant. Ext. P10 is the statement dated 29/08/2005 issued by the Citibank for the period from 30/7/2005 to 28/08/2005. Ext. P11 is the copy of letter addressed to M/s. T.T.K Health Care Services Ltd dated 3/3/2006 by the complainant requesting the former to issue the identification card in connection with the Ext. P5 Good Health Certificate. Complainant has been cross examined as PW1 by the opposite party. In their cross examination by the opposite party, PW1 has deposed that Ext. P5 was issued to him by the opposite party by post, that policy premium was remitted by the Citibank had subsequently recovered the said amount from him. When asked why did Citibank remit the premium, PW1 said he was a customer of Citibank and on their direction, the opposite party contacted him over phone and accordingly he agreed to take the policy. Exts. P9 to P11 confirm that complainant was a Citibank card holder and card No.is 5546199565533007 which is seen noted in Ext. P5 also. In his cross examination, PW1 has deposed that he had taken Ext. P5 policy for himself, his wife and his grandson toward Medi-claim and Personal Accident Claim. Ext. P8 disability Certificate is seen issued by Dr. J.R. Jagajeev who has been examined as PW2. On perusal of Ext. P8, PW2 has deposed that he had examined one Mr. Janardhana Iyer on 2/10/2008 when he was working as Assistant Professor, Orthopaedics, Medical College, Thiruvananthapuram and had issued Ext. P8 certificate stating permanent disability as 9% as per Mc Bride scale. In his cross examination PW2 has deposed that for preparation of Ext. P8 he has verified O.P ticket and X-rays. Witness has deposed further that the patient was treated in private hospital. PW2 has admitted that it is a medicolegal case, and normally wound certificate will be issued by the Doctor who first examined the patient. When asked whether he has seen the wound certificate, PW2 said he is not remembering. Asked whether these injuries can be caused even if the patient had fallen from staircase, PW2 said that can happen. PW2 has denied the suggestion that disability of 9% on the higher side. Though opposite party had filed affidavit, he has not turned for cross examination. Though PW1 and PW2 were cross examined by the opposite party, nothing was elicited from them to disbelieve their deposition. Further Exts. P1 to P11 would assert that complainant's accident, treatment and disability caused due the accident are true. Evidently, by Ext. P5 complainant has availed policy from the opposite party and during the relevant period of the accident, the policy was in force. In view of the oral testimony of PW1 & PW2 and evidence available on record we are of the opinion that complainant has established his case, opposite party has never adduced any evidence nor has opposite party produced the guide book (detailed claim procedure) to prove otherwise. Deficiency in service proved. In view of the above, we find that complainant is entitled to get compensation from the opposite party. As per Ext. P5, the sum assured is Rs. 2 lakh. Admittedly, Mr. Janardhana Iyer was employed with the BSNL as Head Clerk and was drawing Rs. 14,400/- per month. He was about 55 years at the time of accident. He had produced leave certificate by which he had availed commuted leave on M/C for 28 days (by Ext. P4) with effect from 28/2/2006 to 27/3/2006 and had rejoined duty on FN of 28/3/2006, thereby he would have a loss income of Rs. 13440 = 14400 x28 days. He
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has produced medical bills vide Ext. P7 for Rs. 1435/-. Complainant's disability is 9% , thereby he is entitled to get 9% of Rs. 2 lakhs, that is Rs. 18,000/-. Altogether complainant is entitled to get an amount of Rs.32875 = 13440 + 1435 + 18,000 as claim amount, along with a compensation of Rs. 5,000/-.
In the result, complaint is allowed. Opposite party shall pay the complainant a sum of Rs. 32,875/- with interest thereon at the rate of 9% per annum from the date of the complaint (that is from 2/5/2006). Opposite party shall also pay a sum of Rs.5,000/- towards compensation and Rs.2,000/- as cost. Opposite party shall pay the said amount within 2 months from the date of receipt of this Order failing which Rs.32,875/- will carry interest at the rate of 12% per annum.
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 16th day of February, 2011.
G. SIVAPRASAD,
PRESIDENT.
BEENA KUMARI .A, MEMBER.
S.K. SREELA,
MEMBER .
ad.
C.C.No: 136/2006
APPENDIX
1. Complainant's witness:
PW1 : Janardhana Iyer. R
PW2 : Dr. J.R. Jagajeev
II. Complainant's documents:
P1 : The accident certificate issued by City Traffic Police Station, Thiruvananthapuram.
P2 : The treatment certificate issued by BNV Hospital dated 4/08/2008.
P3 : The salary certificate issued by BSNL
P4 : The certificate issued by Assistant General Manager, BSNL
P5 : The Good Health Policy Certificate issued by the opposite party.
P6 : Copy of the Medical Certificate dated 1/03/2006 issued by Orthopaedic Surgeon, BNV Hospital.
P7 : Series include medical bills for Rs.1435/- issued by BNV Hospital
P8 : The certificate of disability issued by Dr. J.R. Jagajeev
P9 : The statement dated 29/11/2006 issued by Citi Bank for the period from 29/10/2006 to 28/11/2006 to complainant.
P10 : The statement dated 29/8/2005 issued by the Citi bank for the period from 30/7/2005 to 28/8/2005..
P11 : Copy of the letter addressed to M/s. TTK Health Care Service Ltd dated 3/3/06 by the complainant.
Opposite party's witness : NIL
Opposite parties' documents : NIL
PRESIDENT
