The averments in the complaint are as follows:

            On 20/1/04 at about 5.30 O’clock the complainant met with an accident while he was riding his motorcycle through Wadakkanchery-Kunnamkulam public road at a place called Erumapetty. As a result of the accident he had sustained serious head injury and he was admitted in Amala Hospital, Thrissur. He was treated there from 20/1/04 to 18/2/04. The treatment still continues. As a result of the accident he lost his memory partially as well as his ability to speak. He has become totally disabled. The complainant had spent Rs.1,00,000/- as medical expenses. The vehicle No.KL8/W/1048 was the vehicle involved in the accident and insured with the respondent company and the policy period was from 14/12/03 to 13/12/04. The police also registered a crime as 15/04. The complainant had applied for the insurance benefits but was rejected. So the complainant was caused to issue lawyer notice and there is no remedy so far. Hence this complaint.

 

            2. The case of respondent company is as follows:

The respondent company denied the averments in the complaint in total. The company further stated that they admit the policy for the vehicle bearing Reg.No.KL.8/W/1048 for the period from 14/4/03 to 13/12/04. The alleged accident occurred on 20/1/04. The mere existence of a policy does not ipso facto attach any liability with this respondent. The complainant has not complied with the terms and conditions of the policy. The complainant has not sustained any disability. There is no deficiency in service. The respondent also filed an additional counter stating that as per the terms and conditions of the two wheeler package policy clause under Sec.III, the company undertakes to pay compensation as per the following scale for the bodily injury/death sustained by the owner – driver of the vehicle in direct connection with the vehicle insured whilst mounting into/dismounting from or travelling in the insured vehicle as a 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 death, scale of compensation is 100% loss of two limbs or sight of two eyes 100%, loss of one limb or sight of one eye 50%, permanent total disablement from injuries other than named above 100%. The alleged injury sustained to the petitioner will not fall under the above said clause and are only minor injuries. There is no deficiency in service. Hence dismiss the complaint.

 

            3. The points for consideration are :

1)Is there any deficiency in service ?

2) If so reliefs and costs ?

 

            4. The evidence consists of Exhibits P1 to P7 and the deposition of PW1 and Exhibits R1 and R2.

 

            5. Points: The case of the complainant is that on 20/1/04 at about 5.30 O’clock the complainant met with an accident while he was riding his motorcycle through Wadakkanchery-Kunnamkulam public road at a place called Erumapetty. As a result he had sustained serious head injury and was admitted in Amala Hospital, Thrissur and treated there from 20/1/04 to 18/2/04. According to him as a result of the accident he lost his memory partially and his ability to speak. He further stated that the vehicle had insured with the respondent company and there was valid policy and so the company is entitled to grant the insurance benefits to the complainant. So he had applied but so far no remedy.

 

            6. In the counter the respondent company stated that as per policy terms and conditions of the two wheeler package policy clause under Sec.III, the company undertakes to pay compensation as per the following scale for the bodily injury/death sustained by the owner – driver of the vehicle in direct connection with the vehicle insured whilst mounting into/dismounting from or traveling in the insured vehicle as a 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 death, scale of compensation is 100% loss of two limbs or sight of two eyes 100%, loss of one limb or sight of one eye 50%, permanent total disablement from injuries other than named above 100%. The alleged injury sustained to the petitioner will not fall under the above said clause and are only minor injuries. So according to the company the complainant is entitled for the benefits only as specified by the company in Exhibit R1.

 

7. The complainant has produced eight documents to prove his case. According to the company the insured is entitled for 100% of the compensation if there was death, or loss of two limbs or sight of two eyes or one limb and sight of one eye or permanent total disablement from the injuries other than named in the policy. In this case insured is living and there is no loss of limbs or sight. The claim of the complainant is under permanent total disability. According to him after the accident he has lost his memory and ability to speak. But no evidence to establish the fact is produced. The doctor who had examined the complainant is examined as PW1 and he stated that there was loss of memory and speech abnormality on examination and also deposed that these loss is due to the injury sustained . During chief examination he has stated that the disability is permanent. But when the respondent’s counsel cross examined he has stated that the complainant is not sustained permanent total disability. During re-examination by counsel for complainant the witness stated he has not noted the disability. Exhibit P3 is the certificate issued by PW1 and in which the word Permanent Total Disability not used. But he has certified that the complainant is still under treatment and can not improve from present status. The present status is also stated as ”even though he has recovered he still has memory loss, speech abnormality due to posterior temporal contusion”. PW1 is an expert in neuro surgery   and working in Amala Hospital, Thrissur in the department of neuro Surgery. There is nothing to disbelieve the words of PW1 and there is no challenge to the words used in Exhibit P3 certificate that the patient is still under treatment and can not improve from present status. Present status is mentioned in Exhibit P3. The serious situation of the complainant can be realized from the deposition of PW1 and also from the documents. Exhibit P3 and Exhibit R2 are very important and supports the case of complainant.

 

            8. One more point is to be discussed. The claim is for two lakhs rupees for disability and medical expenses. The kind of disability is not noted any where in the documents or in the complaint. Complainant has not taken steps to assess the correct disability. As per Exhibit R1 the complainant is entitled for compensation as per Sec.III and he is not entitled for the medical expenses. If there was loss of memory fully he can not advise a lawyer to file a complaint for him. But the present complaint is filed by the complainant in his own capacity and put his signature. So it is clear that he has not lost his memory fully. But due to the accident he had sustained grave injuries and the seriousness can be seen from the records. Speech abnormality is certified by PW1 and no challenge for that. So according to us the complainant is entitled for 50% of the scale of compensation. He is not eligible for medical expenses since medical expenses are not covered.

 

            9. In the result complaint is allowed and the respondent company is directed to pay 50% of the scale of compensation assured by the policy to the complainant within two months.

 

 

 

 

 

 

 

            Dictated to the Confdl. Asst., transcribed by her, corrected by me and pronounced in the open Forum this the 17^th day of February 2009.