JUDGEMENT
This complaint is filed by the complainant U/s12 of C. P. Act, 1986 alleging deficiency in service and unfair trade practice against the Ops as the Ops have refused to pay the entire benefit of 292 days due to physical disablement of the Complainant as per the terms and conditions of the policy.
The brief fact of the case of the complainant is that he obtained one individual personal accident policy from the Ops in the year 2007. During validity of the said policy he met motorcycle accident on 12.2.2010 and due to the said accident he got total disablement on temporary till 30.11.2010. Being fit he joined in his job and normal duties on and from 01.12.2010. Under the terms of the said policy the complainant lodged a claim for compensation with the Ops for such disablement for the period of 292 days @Rs. 3000=00 per week. The claim of the complainant was registered with the
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OP. Due to the accident the complainant got admission at the DSP Main Hospital on 12.02.2010 wherefrom on the next date he requisitioned the claim form from the Divisional Manager. On 18.02.2010 he got release from the DSP Main Hospital with an advice for bed rest for 14 days and he was also advised to attend again further. In the said hospital aspiration was done, Jones bandage applied on his left knee and other medicines were prescribed. Due to problem he got further admission in the DSP Hospital on 26.02.2010 and got release therefrom on 12.3.2010 with the diagnosis of hemarthrosis (extravasations of blood into joint or its synovial cavity) in the left knee. The complainant was asked to come for review after one week. He duly attended at the hospital on 20.3.2012 and he was advised to continue rest for another two weeks at home. He was also advised by the DSP Hospital to go to the higher centre in case of necessary. Under these circumstances on 23.3.2010 the complainant got himself examined by Dr. D. Roy, consultant orthopedic surgeon, but the left knee of the complainant remained immobilized with related complications and pain etc. Dr. Roy advised for knee immobilization for six weeks. For further opinion the complainant got himself examined by Dr. Nabarun Banerjee, who also examined and advised some medication, test and rest for four weeks. Being dissatisfied with the treatment the complainant began to arrange for moving at the Christian Medical College and Hospital and ultimately he went there on 29.4.2010. Upon preliminary check up the said hospital decided for operation and the complainant was given some medicines as pre-operative measures and he was advised to come again on 12.7.2010 for fixing the date of operation on 16.7.2010. The complainant went to the said hospital on 12.7.2010 and remained there till 02.8.2010. Out of this period from 19.7.2010 to 24.7.2010 he was in-patient in the said hospital and he was recommended leave until 20.9.2010. The complainant underwent operation on the left knee. The said hospital asked him to use partial weight bearing scratch walking and to come for review after three months. Accordingly the complainant went to CMC and Hospital, Vellore on 20.11.2010 and upon examination the said hospital recommended that the complainant could resume normal duties on and from 01.12.2010. Therefore, from 12.02.2010 to 30.11.2010 the complainant was totally disabled and could not perform normal activities. Being LIC agent by occupation he needs to make extensive journey from door to door for collection of the policy from the prospective purchasers and due to such accident he was not in a position to do this work. The complainant was entitled to get compensation to the tune of Rs. 1,26,003=00, but the insurance company have sanctioned Rs. 37,286=00 only as the company has assessed the period as total disablement for 87 days only which is totally incorrect and without any basis. The complainant refused to accept the said amount and sent one written representation to the OP on 26.7.2011. In the said representation the complainant has explained in detail date-wise development of his injury, disablement, treatment and thereafter normalization. As the company did not
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intimate him till 18.8.2011, on the next date the complainant issued reminder and final reminder was issued by the complainant on 12.9.2011. On 09.11.2011 the OP-2 issuing a letter to the complainant had stated that upon receipt of the letter of the complainant dated 26.7.2011 and 19.8.2011 the claim has been reviewed and the company has considered the total temporary disablement for 94 days. Along with the said letter one voucher to the tune of Rs. 40,286=00 was also enclosed towards full and final settlement of the claim of the complainant. Being further dissatisfied with such action as well as the amount the complainant returned back the said voucher through registered post with A/D along with a forwarding letter. On 11.7.2012 the complainant submitted a representation before the Assistant Director, CA & FBP, Durgapur where a meeting was held on 08.8.2012 and the OP was asked to attend the said meeting. During the proceeding before the CA & FBP Department the company appointed an Investigating Officer, namely, Sri Jitendra Narayan Chakraborty who by issuing a letter dated 18.8.2012 asked the complainant to furnish some documents. Surprisingly by a letter dated 31.8.2012 the OP-2 sent two sets of personal accident claim forms to the complaint asking him to return the same after filing in all respect and including all the treatment papers within 15 days from the date of receipt of the letter. The complainant was also asked for by the Investigating Officer to submit some documents and replying some queries. By issuing a letter dated 18.9.2012 the complainant informed the Investigating Officer that as the proceeding has ended before Department of CA & FBP, Durgapur, West Bengal and the next date was fixed 08.10.2012, therefore, at this juncture reply to the questionnaire as placed by the Investigating Officer is irrelevant. As the Department of CA & FBP could not redress the grievance of the complainant by way of amicable settlement hence, the complainant without finding any alternative has approached before this Ld. Forum by filing this complaint praying for direction upon the OP to pay him a sum of Rs. 1,26,003=00 towards temporarily permanent disablement along with interest @8% p.a. from December 2010, compensation to the tune of Rs. 1,00,000=00 due to harassment and mental agony and litigation cost of Rs. 25,000=00.
The petition of complaint has been contested by the Ops by fling written version wherein it is stated that though the accident occurred on 12.02.2010, the same was informed to the insurer on 18.02.2010 and due to such late receipt of information the company was unable to make necessary verification from the eye witness. The insured also not submitted the registration certificate of the motorbike, driving license etc. from where it will be evident whether the insured was a pillion rider or driving the motorcycle at the material point of time. From the treatment sheet it is evident that the insured took admission at the DSP Main Hospital on 12.02.2010 wherefrom he got release on 18.02.2010 with the advice to report after two weeks and after conducting certain tests.
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The insured was further admitted at the hospital on 26.02.2010 and discharged on 12.3.2010 with the advice of bed rest and to come to the hospital on 20.3.2010. The Ops have contended that instead of reporting to the said hospital in compliance with the advice of the treating doctor the insured visited Dr. Roy on 23.3.2010 and without adhering the advice of Dr. Roy the insured consulted with Dr. Nabarun Banerjee on 08.4.2010 who advised him for exercise along with gradual activities and also remarked to take treatment elsewhere and bed rest for four weeks. On his own wish violating the advises of the doctors the insured went to CMC, Vellore hospital on 29.4.2010 where upon examination he was requested to visit again on 12.7.2010 since the decision of operation could not be taken up as the patient was suffering from pre-existing disease resulted with high Uric Acid and Creatinine. Be it mentioned that the complainant was a known patient of hypertension. The insured again visited CMC hospital on 12.7.2010 and treated there as an in-patient from 19.7.2010 to 24.7.2010. In the discharge summary the complainant was advised to attend after three months but after four months he went at the said hospital and after x-ray on 22.11.2010 the treating doctor prescribed the patient as fit with the remark that he can resume duty on and from 01.12.2010. In the written version the Ops have contended that if the patient continued his treatment at Durgapur it will have been possible to detect the cause of injury through MRI at DSP Hospital, Durgapur and the process of treatment could have been ascertained and the complainant will be cured at the earliest. The frequent changes of doctors have delayed the treatment and for this reason the complainant was prescribed as fit at a belated stage. During the entire period of treatment at the CMC hospital advice was given for complete bed rest from 29.4.2010 to 01.12.2010. A clarification was sought for from the insured by the Investigating Officer on the above points which was valid and justified, but the complainant has failed to give reply of the questionnaire as put forward to him. It appears from the treatment papers that temporary disablement for 292 days is not proper. Though request was made to provide entire information and the medical documents, but to no effect. Therefore, the insurance company based on the papers provided by the complainant has considered the claim towards TTD (Total Temporary Disablement) for 159 days @Rs.3000/- per week and in total for Rs.68,142=00. But without accepting the said voucher the complainant has illegally and arbitrarily filed this complaint to grab some extra amount from this OP through an illegal manner. Such action of the complainant proves his malafide intention and hence prayer has been made by the Ops for dismissal of the complaint with heavy cost.
The OP has submitted written notes of argument with a copy to the other side. The complainant has filed several documents in support of the complaint and the Ops have also filed several documents in favour of their contentions.
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Decision with reasons:
We have carefully perused the entire record; several documents filed by the parties as well as heard arguments from the Ld. Counsels for both sides. It is seen by us that there are some admitted facts in the instant case i.e. the complainant obtained one individual personal accident policy from the OPs in the year 2007, during validity period of the said policy he met with a motorcycle accident on 12.02.2010, he was temporarily total disabled due to the said accident from 12.02.2010 to 30.11.2010, he was treated by several doctors at Durgapur as well as in Vellore, operation of the left knee was done in Vellore, the treating doctor of Vellore issued fitness certificate in the name of the complainant wherein it was stated that on and from 01.12.2010 the complainant will resume his duties as normally. The allegation of the complainant is that though he was temporarily total disabled for 292 days i.e. from 12.02.2010 to 30.11.2010, but the Ops have refused to pay compensation @Rs.3000/- per week towards TTD for 292 days and he was requested to accept the voucher only for 159 days. As the complainant was not agreed with such decision of the OPs, hence this complaint. On the contrary the contention of the Ops is that the medical documents show that actually the complainant had to face temporary total disablement for 159 days only, not 292 days and though compensation of 159 days was offered to him, but the insured refused to accept the same and filed this frivolous and vexatious complaint with a view to harass the company. Now we are to adjudicate whether the actual claim was for 292 days or 159 days as claimed by both the parties.
We have noticed that accident took place on 12.02.2010 and on the same day he got admission at the DSP Main Hospital, Durgapur from where he got release on 18.02.2010 with the advice for taking rest for 14 days and to attend again further. As per the advice of the said hospital the complainant was admitted further on 26.02.2010 and was discharged therefrom on 12.3.2010. Diagnosis was made as Hemarthrosis in his left knee. At the time of discharge the complainant was asked to turn up for review after one week and accordingly the patient went to the hospital on 20.3.2012 when he was advised to continue rest at home for two weeks. The complainant was also advised by the treating doctor to move at the higher centre in case of urgency/necessity. On 23.3.2010 the complainant was examined by a consultant orthopedic surgeon. But his left knee remained immobilized along with some complications and pain. Dr. Roy advised him for knee immobilization for six weeks. For taking further opinion he was also examined by Dr. Banerjee who upon examination advised some medicines and rest for four weeks. In this context the Ops have submitted that though DSP Main Hospital
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has advised him on 20.3.2012 to come after two weeks but the complainant did not turn up and got himself examined by Dr. Roy and
Dr. Banerjee as per his own whims. We have noticed in this connection that within two weeks as per the advice of the DSP Hospital the complainant visited Dr. Roy and Dr. Banerjee and for such visit excess days has not been consumed by the complainant. The dates of visits with Dr. Roy and Dr. Banerjee fall within the period of taking rest as per the advice of the DSP Main Hospital, for this reason question does not arise for payment of excess amount as compensation to the complainant by the Ops. Therefore, we do not find any substance in the argument of the OPs at this juncture.
As the complications and pain was not removed, the complainant went CMC Hospital, Vellore on 29.4.2010, where upon preliminary check up the treating doctor decided for an operation and for this reason the patient was advised with some medicines as pre-operative measures and he was advised to come on 12.7.2010 for fixing the date of operation on 16.7.2010. Accordingly the complainant went at CMC, Vellore and remained therein till 02.8.2010. Out of this period from 19.7.2010 to 24.7.2010 he was in-patient in the said hospital. The complainant had undergone operation of left knee at the said hospital and during discharge he was advised to use partial weight bearing scratch walking and to come for review after three months. Accordingly he went to CMC on 20.11.2010 and upon examination the doctor recommended him that he could resume normal duties on and from 01.12.2010. Therefore, it is crystal clear to us that as per the fitness certificate issued by the treating doctor the complainant was declared as fit and recommended to resume his duties on and from 01.12.2010. Hence, from the date of accident i.e. 12.02.2010 to 30.11.2010 he was under temporarily total disablement as per the terms and the conditions of the policy. If we count from the date of accident till the date of issuance of fitness certificate by the doctor it will be evident that the complainant was totally disabled on temporary basis for 292 days. We have also noticed that primarily the Ops have allowed the claim of the complainant for 94 days and later on it was enhanced by 159 days, but in no way the Ops were ready to pay compensation for 292 days. There is no such document before us from which we can come to the conclusion that based on which document the Ops came at first for 94 days and thereafter calculated 159 days. On what basis such enhancement was done, there is no such explanation. As well as, on what basis compensation for 292 days cannot be given, explanation is not forthcoming before us. We have perused the terms and the conditions being no (f) which runs a follow:-
‘if such injury shall be the sole and direct cause for temporary total disablement, then so long as the insured shall be totally disabled from engaging in any employment or
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occupation or any description whatsoever, a sum @1% of the capital sum insured stated in the schedule hereto per week, but in any case and exceeding Rs. 5000/- per week in all under all policies.’
In the instant case the complainant has stated that he used to earn his livelihood as an agent of LIC. Admittedly for this purpose he is to approach from door to door for selling out the policy to the intending purchaser. There is no denial that complainant met with an accident and due to that accident he got total disablement on temporary basis and there is also no doubt that the accident was the sole and the direct cause for his temporarily total disablement and due to such TTD he could not join his duties. Admittedly during taking up the policy the insured and the insurer put their signatures on the proposal paper and the insured after going through the terms and conditions of the policy has accepted the same. So, neither the insured nor the insurer can go beyond the terms and conditions of the policy and the same are equally binding upon the both the parties. As per the terms and the conditions as mentioned above the Ops are liable to pay 1% of the sum assured as compensation for the period of TTD, nor exceeding 5000/- per week. In the case in hand admittedly the sum assured was for Rs. 3,00,00=00 and for this reason the amount for compensation does not exceed Rs. @3,000 per week. In the instant case the complainant is entitled to get compensation Rs. 3000/- per week for TTD (@1% of the sum assured). As there is no satisfactory explanation from the Ops to the extent that why the complainant not entitled to get benefit for 292 days and on the contrary where the medical documents reveal that the complainant got fitness certificate on 30.11.2010, therefore, we have no hesitation to hold that from 12.02.2010 to 30.11.2010 the complainant was temporarily total disablement and for which he is entitled to get benefit as per the policy condition being no. (f). Knowing fully well in our opinion the Ops have intentionally harassed the complainant because primarily the company agreed to pay compensation for 94 days and thereafter for 159 days, but both assessment were baseless as the company has failed to show us any such rules and regulations of the policy or any cogent basis /evidence in support of their contention. As due to such inaction of the company the complainant had to harass for a prolonged period, the complainant is entitled to get adequate compensation from the Ops. As the legitimate grievance of the complainant has not been redressed by the company before
coming to the Court and admittedly by filing this complaint had to incur some expenditure in our view the complainant is to be awarded with some litigation cost.
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Hence, it is,
Ordered
that the complaint is allowed on contest with cost. The Ops are directed to pay 1,26,003=00 (Rs. One lac twenty six thousand and three) only towards the compensation for TTD for 292 (two hundred and twenty nine) days i.e. @ Rs.3000=00 (Rs. Three thousand) per week to the complainant within 45 (forty five) days from the date of passing of this judgment, in default, the above-mentioned amount shall carry penal interest @10 % p.a. (ten per cent) for the default period. The Ops are further directed to pay a sum of Rs. 5000=00 (Rs. Five thousand) only towards compensation to the complainant due to unnecessary harassment, mental agony and pain and litigation cost of Rs. 2000=00 (Rs. Two thousand) only within 45 (forty five) days from the date of passing of this judgment, in default, the complainant will be at liberty to put this decree in execution as per provision of law. With the above-mentioned observation the complaint is thus disposed of accordingly.
(Udayan Mukhopadhyay)
Dictated and corrected by me. President,
D.C.D.R.F., Burdwan.
(Mrs. Silpi Majumder)
Member
D.C.D.R.F., Burdwan.
(Mrs. Silpi Majumder) Sri Durga Sankar Das)
Member Member
D.C.D.R.F., Burdwan D.C.D.R.F., Burdwan
