SMT. RAVI SUSHA: PRESIDENT

This is a complaint filed U/s 35 of Consumer Protection Act 2019, seeking to get an order directing opposite party to pay a sum of Rs.15,00,000/- to the complainant with interest  at the rate of 12% per annum  from 13/08/2020 till realization together with cost of the proceedings of the complaint.

            In brief the facts of the case are that the complainant is a driver by occupation, having his own goods carriage KL-58H/9149.  On 13/08/2020 he had trip to carry marble in his good carriage.  After loading the marble in the goods carriage, the complainant was trying to tie the same with a rope.  While so, the hook of the goods carriage broken down and a marble piece fell on the right leg of the complainant and there by the complainant was grievously injured.  The complainant was taken to Baby memorial hospital, Kozhikode admitted on 14/08/2020 for treatment and discharged on 01/09/2020 after surgery and directed to appear for review after six weeks.  At present the complainant is having more than 100% permanent disability considering the body as a whole.  The incident was reported to the Iritty police station on 24/08/2020.  At the time of accident of the complainant the goods carriage was having valid insurance coverage with OP and was having valid driving license to drive the goods carriage.   Complainant submitted that the OP denied their liability to give compensation to the complainant saying that on four specified circumstances only, the insured is entitled to get compensation under Personal Accident Coverage.  According to them, the disability assessed by the Medical board is relating to the particular limb and not for the whole body. The act of OPs the complainant caused much mental agony and financial loss.    So there is deficiency of service and unfair trade practice on the part of OPs.  Hence the complaint.

            The insurance company filed version and pleaded that this OP admits that insurance of the complainant under personal accident cover in the motor Insurance policy of the goods auto rickshaw KL58/H9149.  But this OP denies their liability to pay any amount as compensation to the applicant as per the terms and conditions of the insurance policy.  This OP is not liable to pay the insurance amount to the complainant, since the complainant committed fundamental breach of the insurance policy, since he failed to intimate regarding the accident to this OP along with the FIR from the police station immediately after the accident and failed to furnish the vehicular documents and his driving license before this OP, which he is specifically bound to do as per the insurance policy and its condition.  Those OP is also not liable to pay the insurance amount to the complainant, since he was knowingly driving the auto rickshaw at the time of the accident without a driving license, which amounts to the fundamental breach of the insurance policy and its conditions.  This OP submits that the insured is entitled to claim under the personal accident cover of the said insurance policy, only as per the schedule of injuries and scale provided U/s  III of the insurance policy, subject to the terms, exemption conditions and limitation of the policy.  As per the said section III, the company undertakes to pay 100% of the sum insured  as compensation to the insured, only if the insured owner – driver, dies due to the injury, loss of two limbs or sight of two eyes or loss of one limb and sight of one eye, or for permanent total disablement from injuries sustained in the accident.  The insured is entitled for 50% of the sum insured only if he sustains loss of one limb or sight of one eye.  Hence  the applicant who is  not having any of the injuries or disability as shown in the scale I, II, II and VI in sec. III of the insurance policy is not entitled to claim for the compensation under the personal accident insurgence policy.  The above claim is therefore liable to be dismissed.  It is submitted that the averment in the complaint that he is having 100% disability due to the injuries in the accident and considering the disability as a whole body due to the injuries sustained in the accident, he is entitled for Rs.15,00,000/- which is the sum insured is not true.  The complainant is not entitled for the personal accident claim  as per section III of the insurance policy.  There was no deficiency of service or unfair trade practice on the part of the OP.  Hence, prayed for the dismissal of complaint.

            At the evidence stage, complainant has filed chief affidavit and documents.  Examined as Pw1. Marked Ext. A1 to A13.  Pw1 was subjected to cross-examination by OP.  On the side of OP, manager of OP Company filed his proof affidavit and was examined as Dw1.  Subject policy with conditions is marked as Ext.B1.  Dw1 was cross examined by complainant.

            After that the learned counsel of complainant filed argument note.  We have gone through the record available and also the submissions of the learned counsel of the parties.

            The complainant has filed the disability certificate issued by medical Board constituted at Govt. Medical College, Kannur (Ext.X1).  We have also perused the said certificate.  It shows that the total disability was caused to the complainant up to an extent of 64%.  The certificate also indicates that RTA- crush injury right leg with commented type IIIC# both bone on 14/08/2021 (Distal 1/3)with Extremal fixation by local propeller flap lower.  Infected Non-union right tibia.  Sciatic nerve neuropathy with foot trop right.

Next on perusal of the policy of Insurance and the conditions stipulated there in, which indicated that if on account of motor accident one limb is loss means (cut off) or lose sight of one eye, the Insurance company will pay a sum of 50% of the insured amount as compensation to the insured.  Ext.X1 shows the medical board certifies that percentage of disability on standing on attention 10%, climbing stair 10% walking place 5%, squatting on floor 10%.  So Medical Board Report has been stated that the disability caused to the complainant has not made him completely disabled and the disability caused to the complainant up to an extent of 64% will not bring him in the category of permanent total disabled person.  Hence the claim has rightly been repudiated by the Insurance Company on the ground that the complainant has not suffered any permanent total disability on account of the injuries sustained by him in the motor accident.  So we come to the conclusion that the complainant has not suffered any permanent total disability from the injuries happened in the alleged motor accident.

            In the result, complaint fails and hence it is dismissed.

Exts

A1-Copy of General diary entry

A2-Copy of accident register cum wound certificate

A3(series)- Discharge summary issued by baby memorial hospital

A4- CT Scan report

A5-(Series)- prescriptions (26 in Nos.)

A6(series)- Medical bills (70 in Nos.)

A7- Attested copy of RC

A8- Copy of policy

A9-Attested copy of driving license

A10- Copy of lawyer notice

A11- Postal receipt

A12-Reply notice

A-13 Print out of the details of Personal Accident Policy

X1- Disability certificate`

B1- Policy

Pw1- Complainant

Dw1- Haridasan K- Witness of OP

     Sd/                                                                          Sd/                                                    Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

                                               /Forwarded by order/

                                               Assistant Registrar