Complainant/s:              1. Parappa S/o Veerupakshappa Oli

                                                  Age: 46 Years, Occ: NIL

                                                   R/O Doni Tq:Mundaragi Dist:Gadag

                                                   Presently R/At C/O Suresh Ningappa   

                                                  Oli, L.I.C. Agent, Sanganal Building,   

                                                  Puttaraj Nagar, Sambhapur Road,  

                                                  Gadag.

                                                (Rep. by Sri.S.V.Hiremath, Advocate)   

V/s

JUDGEMENT

JUDGEMENT DELIVERED BY SRI. RAJU.N.METRI, MEMBER

The complainant has filed the complaint U/Sec.35 (1) of the C.P.Act, 2019 directing the OP to pay a sum of Rs.4,50,000/-, towards Medical expenses, mental agony with interest @ 9% p.a. and cost of the complaint.

2. The brief facts of the complaint is as under:

         Complainant had purchased a Motor Cycle Honda Shine on 26.11.2015 from Honda Showroom Gadag, bearing No.KA-26 W-2590.  The said motor cycle was insured with OP company under Policy No.472290/31/2019/2692 covering the period from 19.09.2018 to 18.09.2019 midnight including additional premium in order to cover personal accident benefit for owner/rider to the tune of Rs.1,00,000/-.  On 09.05.2019 complainant while driving his vehicle towards Attikatti Village, near land of Parsappa Chavan, from the opposite direction one Shri. Tavarappa Chavan was riding the Motor Cycle No.GA-05 C-4065 in rash and negligent manner dashed the complainant vehicle and he met with an accident. Complainant has sustained grievous injuries.   He lodged the complaint on 10.05.2019 under Crime No.64/2019 of Mundargi Police Station and charge sheet was filed in C.C.No.53/2020 on the file of JMFC, Mundargi which is pending.   Complainant has  sustained bone fracture, head injury and various grievous injuries towards which he has spent Rs.2,50,000/-.  Further due to grievous injuries and disability caused to him  he is unable to  do his day today work, suffered lot of mental agony and he has lost his future earnings to a tune of Rs.2,00,000/-. So, complainant has requested the OP to pay the Medical expenses on 20.10.2020 and he has submitted the claim to OP. OP has given a reply which is evasive on 11.01.2021. Therefore, Op has committed the deficiency of service. Hence, filed this complaint.

          3.       In pursuance of service of notice, OP appeared through his counsel and filed written version to the complaint, as under:

          4. The brief facts of written version filed by OP No.1 is as under:

          OP denied the various allegations in the complaint, and admitting the issuance of policy.  OP contends that, he is only the extension counter for issuing policy and no other activities are carried in the counter; headed by an Administrative Officer. All legal matters and claim settlements are administered by the Divisional Manager, of the concerned Divisional Office at Dharwad. He is the proper party to the complaint.   The complaint is untenable against the OP.  The Op admits the vehicle bearing No.KA-26/W-2590, Motor Cycle is insured with  Personal Accident coverage, subject to terms of contract of insurance specified in the policy.  The insurance policy between the insurer and insured represents the contract. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy,  the terms of the agreement have to be strictly construed, to determine the extent of liability of the insurer.  The insured has also acted strictly in accordance with the statutory limitations and/or terms of the policy expressly set out therein.

          Op further, states that, it is transpired from the complaint and police papers that the accident occurred on 09.05.2019 and the complainant has sustained injuries, and got intensively treated and prays for the indemnity.  OP states that, the complainant intimated about the accident on 28.10.2020 and requested to supply the Claim-Form to seek indemnity.  On verification of the policy and its terms, the Op replied on 11.01.2021 that “…… with the regard to the injuries sustained and expenses incurred, the same are outside purview of the above package policy.  OP states that, PA cover obtained in the above policy covers only the accidental death of owner driver and no medical expenses are reimbursed”.  The Op has expressed its inability to entertain the claim.  The OP contends that, the contract of indemnity and the policy issued to the insured vide policy No.472290/31/2019/2692 in respect of vehicle No.KA-26/W-2590 premium of Rs.50/- was received towards the cover risk of owner driver under GR36A of India Motor Tariff, which covers only accidental death of owner driver.  The insurer had not undertaken to reimburse the medical expenses, or to indemnity for the disability, in the case of accident injuries.  Hence, the claim of indemnity complained, is not sustainable and liable to be rejected which is already conveyed by OP  on 11.01.2021. Therefore, there is no deficiency of service on the part of Op.  Hence, prays to  dismiss the complaint.       

         5. To prove the case, the complainant has filed affidavit evidence got examined as PW-1 and  One Sri Dr. Mukand W/o Mudakappa Battal, filed affidavit evidence and examined as PW-2 and got marked the documents as Ex.C-1 to Ex.C-24.  OP has filed affidavit evidence of one Sri. Shripad Raghunath Kulkarni and examined as RW-1 and got marked the documents as Ex.OP-1. 

6.       Heard the arguments of counsel for OP and no arguments               were advanced by counsel for complainant inspite of         sufficient  opportunity was given.

          7.       The points for our consideration arose are as under:

          i)        Whether the complainant  proves that, Op has                       committed the deficiency of service.?

          ii)       Whether the complainant proves  that, he is                            entitled for the relief as sought for?

          iv)      What order?

          8.       Our findings on the above points are as under:   

                   Point No.1: Negative.

                   Point No.2: Negative

                   Point No.3: As per final order.

          REASONS

 9.      Point No.1 & 2:- The points are taken together to avoid the repetition of facts.

           10. On careful perusal of the materials placed before us, PW-1 filed affidavit and reiterated the contents of complaint. PW-1 has  stated that, Complainant had purchased a Motor Cycle Honda Shine on 26.11.2015 from Honda Showroom Gadag, bearing No.KA-26 W-2590.  The said motor cycle was insured with OP company under Policy No.472290/31/2019/2692 covering the period from 19.09.2018 to 18.09.2019 midnight including additional premium in order to cover personal accident benefit for owner/rider to the tune of Rs.1,00,000/-.  On 09.05.2019 complainant while driving his vehicle towards Attikatti Village, near land of Parsappa Chavan, from the opposite direction one Shri. Tavarappa Chavan was riding the Motor Cycle No.GA-05 C-4065 in rash and negligent manner, dashed to the complainant vehicle and he met with an accident. Complainant has sustained grievous injuries.   He lodged the complaint on 10.05.2019 under Crime No.64/2019 of Mundargi Police Station and charge sheet was filed in C.C.No.53/2020 on the file of JMFC, Mundargi which is pending.   Complainant has  sustained bone fracture, head injury and various grievous injuries towards which he has spent Rs.2,50,000/-.  Further due to grievous injuries and disability caused to him  he is unable to  do his day today work and also suffered lot of mental agony and he has lost his future earnings to a tune of Rs.2,00,000/-. So, complainant has requested the OP to pay the Medical expenses on 20.10.2020 and he has submitted the claim to OP. OP has given an evasive reply on 11.01.2021. Therefore, Op has committed the deficiency of service.

          11. Per contra, RW-1 has filed affidavit and reiterated contents of the written version. RW-1 has stated that, OP denied the various allegations in the complaint, and admitting issuance of the policy.  OP contended that, the Op is only the extension counter for issuing policy and none other activities are carried in the counter; headed by an Administrative Officer. All legal matters and claim settlements are administered by the Divisional Manager of the concerned Divisional Office at Dharwad. He is the proper party to the complaint.   The complaint is untenable against the OP.  The Op admits the vehicle bearing No.KA-26/W-2590, Motor Cycle is insured with  Personal Accident coverage, subject to terms of the contract of insurance specified in the policy.  The insurance policy between the insurer and insured represents the contract. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy,  the terms of the agreement have to be strictly construed, to determine the extent of liability of the insurer.  The insured has also acted strictly in accordance with the statutory limitations and/or terms of the policy expressly set out therein.

          Op further, stated that, it is transpired from the complaint and police papers that the accident occurred on 09.05.2019 and the complainant has sustained injuries, and got intensively  treated and prays for the indemnity.  OP stated  that, the complainant intimated about the accident on 28.10.2020 and requested to supply the Claim-Form to seek indemnity.  On verification of the policy and its terms, the OP replied on 11.01.2021 that “…… with the regard to the injuries sustained and expenses incurred, the same are outside the purview of the above package policy.  OP states that, PA cover obtained in the above policy covers only the accidental death of owner driver and no medical expenses are reimbursed”.  The Op has expressed his inability to entertain the claim.  The OP contends that, the contract of indemnity and the policy issued to the insured vide policy No.472290/31/2019/2692 in respect of vehicle No.KA-26/W-2590 premium of Rs.50/- was received towards the cover risk of owner driver under GR36A of India Motor Tariff, which covers only accidental death of owner driver.  The insurer had not undertaken to reimburse the medical expenses, or to indemnity for the disability, in the case of accident injuries.  Hence, the claim of indemnity complained, is not sustainable and liable to be rejected which is already conveyed by OP  on 11.01.2021. Therefore, there is no deficiency of service on the part of Op. 

12. Ex.C-1 FIR, Ex.C-2 Mahazar, Ex.C-3 details of Crime, Ex.C-8 & Ex.C-9 Statements, Ex.C-10 Charge sheet, Ex.C-4 wound certificate, Ex.C-5 discharge summary, Ex.C-6 Certificate issued by Tatawadarsh Hospital, Ex.C-7 Motor vehicle accident report  reveal that, accident has occurred and complainant has sustained injuries.  Op is not disputing the insurance certificate Ex.C-11. But main contention of OP is that, PA cover of the policy covers only the accidental death of owner driver and no medical expenses are reimbursed. Admittedly, complainant himself is claiming medical expenses.

13. PW-2 Dr. Mukund Mudakappa Battal, has stated that, on 09.05.2019 complainant sustained head, spinal cord injuries and other parts in the accident who took treatment at Govt. Hospital Gadag and on the same day referred to KIMS Hubli, due to non-availability of expert doctors, on the same day he was shifted to Tatawadarsh Hospital, Hubli as per medical records, complainant underwent surgery twice on 09.05.2019 and also took treatment as in patient since 09.05.2019 till 22.05.2019. On 05.08.2021 and 25.09.2021 he examined the complainant and verified the medical documents he came to conclusion that, complainant sustained disability about 52% to 55%  and issued permanent disability certificate Ex.C-23.  In his cross examination he stated that, he is a MS General Surgeon, recently he got Nero surgeon training and he is an competent person to issue disability certificate. He admits that after discharge patient has to follow up the treatment. He has not verified the said treatment taken by complainant as per expert opinion and also he has not maintained the documents. In Ex.C-21 & Ex.C-22 he has mentioned as stated by complainant, he has not advised to examine for  blood and sugar. At the time of examination, he has not examined IQ of complainant, gradation etc., he has not came to knowledge about Epilepsy and whether it occurred frequently or not.

On perusal of entire cross examination of PW-2, he is not an expert to issue disability certificate and he is a retired person and also he is not the treated doctor. PW-2 issued Ex.C-23 only on the basis of medical records submitted by complainant. Complainant has not examined the treated doctor, where he took treatment at Govt. Hospital, Gadag.  KIMS Hubli and Tatawadarsh Hospital, Hubli. So, evidence of PW-2 is not helpful or reliable evidence to believe that, complainant sustained permanent disability more than 52% to 55%.

We would like to extract the relevant portion of terms and conditions of Ex.Op No.1 policy as under:-

SECTION III PERSONAL ACCIDENT COVER FOR OWNER-DRIVER

The company undertakes to pay compensation as per the following scale for 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 visible means which independent of any other cause shall within six calendar months of such injury result in.

1.  Provided always that,

1. The compensation shall be payable under only one of the items (1) to (IV) above in respect of the owner – driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.1 lakh during any one period of insurance.

2. No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self-injury.  Suicide, or attempted suicide, physical defeat or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.

3. Such compensation shall be payable directly to the insured or to his/her legal representation whose receipt shall be the full discharge in respect of the injury to the insured.

                   Further as per G.R.36. Personal Accident (PA) Cover             under Motor Policy.

                   (not applicable to vehicles covered under Section E,F               and G of Tariff for Commercial Vehicles).

1. Compulsory Personal Accident Cover for Owner-Driver.

Compulsory Personal Accident Cover shall be applicable under both Liability Only and Package Policies.The owner of insured vehicle holding an “effective” driving license is termed as Owner –Driver for the purposes of this section.

Cover is provided to the Owner-Driver whilst driving the vehicle including mounting into/dismounting from or traveling in the insured vehicle as a Co-driver.

NB. This provision deals with Personal Accident cover and only the registered owner in person is entitled to the compulsory cover where he/she holds an effective driving license.Hence, compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner-driver does not hold an effective driving license.In all such cases, where compulsory PA cover cannot be granted, the additional premium for the compulsory P.A. cover for the owner-driver should not be charged and the compulsory PA. Cover provision in the policy should also be deleted.Where the owner-driver owns more than one vehicle, compulsory PA Cover can be granted for only one vehicle as opted by him/her.

14. For the above, stated terms and conditions of the policy and GR.36 of Personal Accident Cover under Motor Tariff, it is clear that the said policy covers only the Accidental Death and loss of particular limb of owner-driver and no medical expenses are reimbursed to the complainant

15. The learned counsel for Opponent is relying on decision in M/S Suraj Mal Ram Niwas Oil Mills V/s United India Insurance Co., Ltd.. Where it is held that: 

 “22. Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance.  It is trite that in a contract of insurance, the 16 (2008) 14 SCC 59817 (2004) 8 SCC 64418 (2009) 5 SCC 599 rights and obligations are governed by the terms of the said contract.

Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity.  In General Assurance Society Ltd., (Supra), a constitution Bench of this Court had observed that:

“ In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves.”  (See also: Oriental Insurance Co., Ltd., V/s Sony Cheriyan 19: Vikram Greentech (Supra); Sikka Papers Ltd., V/s National Insurance Company Ltd., & Ors.20; New India Assurance Company Ltd., V/s Zuari Industries Ltd., & Ors.21; Amravati District Central Cooperative Bank Ltd., V/s United India Fire and General Insurance Company Ltd.,22)

23. Similarly, in Harchand Rai Chandan Lal’s case (Supra), this court held that;

“The terms of the policy have to be construed as it is and we cannot add or subtract something.  However liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended”

19 (1999) 6 SCC 45120 (2009) 7 SCC77721 (2009) 9 SCC 7022 (2010) 5 SCC 294.

On careful reading of above decisions fact circumstances and ratio of the above decision are similar with case on hand.

          16.     For the above, the complainant failed to prove that, he has lost a particular limb due to accident and has entitled medical expenses for the said injuries. Therefore, there is no illegality or irregularity found by the act of OP regarding repudiating the claim made by the complainant.  Therefore, the complainants are not entitled for the relief as sought for.  Accordingly, we answer Point No.1 & 2 in negative. 

          17.     Point No.3:- In the result, we pass the following: 

          //O R D E R//

The complaint filed u/Sec.35 (1) of the Consumer Protection Act, 2019 is dismissed.No order as to costs.

Office is directed to send the copies of this order to the parties free of cost.

           (Dictated to the Stenographer, directly on computer corrected and then pronounced by us in the Open Court on this 29^th day of October-2022)

,            

(Shri Raju N. Metri)                                               (Shri. D.Y. Basapur)  

       MEMBER                                                        PRESIDENT             

-: ANNEXURE :-

EVIDENCE ON BEHALF OF COMPLAINANT/S:

PW-1: Parappa Virupakshappa Oli

PW-2 : Dr. Mukand W/o Mudakappa Battal,

DOCUMENTS ON BEHALF OF COMPLAINANT/S

Ex.C-1: Copy of Draft FIR

Ex.C-2: Copy of Police complaint 

Ex.C-3: Copy of Crime Details Form.

Ex.C-4: Wound Certificate.

Ex.C-5: Copy of discharge Summary

Ex.C-6: Copy of Tatwadarsha Hospital letter issued to P.S.I. Mundargi

            P.S. Mundargi.

Ex.C-7: Copy of Motor Vehicle Accident Report

Ex.C-8  & 9: Copy of complainant statements to Mundargi P.S.  

Ex.C-10: Copy of Charge sheet.

Ex.C-11: Letter from Insurance company issued to complainant.

Ex.C-12: Vehicle Particulars  certificate.

Ex.C-13: Extract of Driving Licence.

Ex.C-14 & 15: Tatwadarsha Hospital receipts.

Ex.C-16 & 17: Tatwadarsha Hospital Laboratory report.

Ex.C-18 to 20: Hubli Scan Centre Pvt. Ltd., reports. (Duplicate)

Ex.C-21 & 22: OPD Prescriptions receipts.

Ex.C-23: Disability certificate.

Ex.C-24: RTC

EVIDENCE ON BEHALF OF OPs:

RW-1: Shripad Raghunath Kulkarni

DOCUMENTS ON BEHALF OF OPs:

Ex.OP-1: Vehicle policy.

(Shri Raju N. Metri)                                                (Shri. D.Y. Basapur)  

        MEMBER                                                          PRESIDENT