SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint U/s 35 of Consumer Protection Act 2019 seeking to get an order directing OP to pay a sum of Rs.9,00,000/- to the complainant with interest at the rate of 12% per annum from 10/02/2021 till realization together with cost of the proceedings of this case, alleging deficiency in service on the par to f opposite party.
Brief facts are that on 10/02/2021 at about 10.30 am, the while riding the scooty KL-59-G-4950 FROM Keezhpally side to Velimanam side was knocked down by a bus and there by the complainant was grievously injured. She had type I open right tibia middle and distal 1/3rd shaft fracture (AO 4T2A2), right malleoli fracture, right 5th, 6th, 7th, 8th rib fracture and left 5th and 6the rib fracture. The complainant was to Amala Mutlti Speciality Hospital, Iritty and after 1st aid treatments she was referred to Tejasvini Hospital, Mangalore and admitted on 10/02/2021 and discharged on 17/02/2021 after surgery and directed to appear for review after six weeks. The complainant became permanently disabled. At present, the complainant is having more than 25% permanent disability considering the body as a whole. The Aralam police registered crime NO.39/2021 against the complainant in relation to the above accident. The complainant was the registered owner of the Mahindra Duro-DZ Scooty KL-59-G-4950 at the time of accident. The scooty was having valid insurance coverage with the OP at the time of accident. The complainant was having valid driving license to drive the scooty. As the vehicle was validly insured with the OP vide policy No.442598/31/2021/1888, they are bound to pay compensation under the head of personal accident coverage to the complainant in proportion to the percentage of permanent disability she had. The OP failed to disburse the amount entitled to the complainant. As per the norms of the policy issued by the OP, they are liable to pay proportionate amount of the sum of Rs.15,00,000/- to the complainant. 25% of the above sum will come to Rs.3,75,000/-. In addition to complainant spend more than Rs.3,50,000/- towards medical and treatment expenses at present. The total amount entitled to complainant will come to Rs.9,00,000/- including travelling and future treatment expenses etc. The complainant issued a registered lawyer notice to the OP on 07/04/2021 claiming an amount of Rs.9,00,000/- from them. The notice was received by them on 09/04/2021. A reply was sent that expressing their inability to entertain the claim of the complainant. Hence, the complaint.
OP filed version admitting that the complainant is holding two wheeler package policy bearing NO.442598/31/2021/888 covering the period from 02/07/2020 to 01/07/2021 issued by the OP on 30/06/2020 in respect of the vehicle bearing NO. KL-58G/4950 WITH Personal Accident Cover Under GR36 A. As per the terms and condition of the said policy, the company undertakes to pay compensation as per the following scale only for bodily injury/death sustained by the owner-driver of the vehicle, in direct connection with the vehicle insured or whilst mounting into dismounting from the vehicle insured or whilst travelling in it as co-driver, caused by violent, accidental external and visible means which independent of any other cause shall within 6 months of such injury result in - death, loss of two limbs or sight of two eyes or one limb and sight of one eye, loss of one limb or sight of one eye, permanent total disablement from injuries other than named above. Further medical, expenses are not covered under the policy terms. This has been informed to the complainant by sending reply notice dated 22/04/2021 in response to her lawyer notice dated 07/04/2021. As the claim raised by the complainant is factually and legally unsustainable, there is no deficiency of service n the part of this OP. OP submits that as the claim is fully governed by the terms and conditions and as per provisions of the policy, the complainant is bound to act as per the same. There is no deficiency of service or unfair trade practice from the part of this OP. Hence prayed for the dismissal of the complaint.
Complainant has filed her affidavit evidence and relied on Exts. A1 to A11. OP has cross-examined the complainant and marked policy with schedule as Ext.B1.
After that the learned counsel for complainant filed written argument note and the learned counsel of OP made oral argument.
We have gone through the record and terms and condition of policy and considered the submissions of the learned counsel of both parties.
In the present case, basically two questions are involved, 1) whether the disablement was caused to the complainant as a result of the accident dated 10/02/2019? And 2) whether it was permanent disablement within the terms and conditions of the Insurance policy? In Ext.A7 the doctor who had treated the complainant after accident dated 02/12/2021 said that the complainant will be having difficulty in walking, running ascending stairs, descending stairs, Rising from chair and squatting. This functional and structural diability are due to the fracture of right Tibia and right lateral malleoll bone during road traffic accident are permanent in nature. The team of treating doctors assessed the disability to be 25 % of the affected right lower limb.
In the present case complainant had taken “motorized two wheelers package policy”. As per Section III Personal accident cover for owner /Driver, the company undertakes to pay compensation as per the scale of injury by the owner /Driver of the vehicle, in direct connection with the vehicle insured while travelling in the insured vehicle as a co-driver, caused accident. Nature of injury described as 1)Death 2) loss of two limbs or sight of two eyes or one limb and sight of one eye, 3) loss of one limb or sight of one eye 4) “permanent total disablement” from injuries other than named above. The parties are governed by the terms of the contract of the policy and accident benefit would only be available in case the diability comes strictly under the definition provided in the terms of the policy.
From the disability certificate (Ext.A7) we find that if at all the disablement caused to the complainant as a result to the accident dated 10/02/2021, affected only to her right lower limb and the Doctor assessed the disability be of 25%. Hence it could not said to be “permanent total disablement” in terms of the policy. Hence, in our opinion, the complainant was not entitled to get the insurance amount. The disablement suffered by her did not come within the scope of cover provided under the policy”.
The complainant as per her own case has sustained injuries in an accident on 10/02/2021; the disability certificate was issued by the Medical Board on 02/12/2021, in which the diability was 25% permanent disability.
Thus as per insurance policy issued to complainant the accident policy benefit is available to the insured in case of “permanent total disablement” only. Complainant is bound by the terms of the policy and accident benefit would be available only in case disability comes within the definition as provided in the terms of the policy. So there is no deficiency in service on the part of OP and the repudiation of complainant’s claim is justifiable.
In the result, complainant fails and hence the same is dismissed. No order as to cost.
Exts.
A1-Copy of FIR
A2-Copy of RC
A3-Insurance policy
A4-Copy of driving license
A5-Wound certificate
A6-Discharge summary
A7-Disability certificate
A8-Lawyer notice
A9-Postal receipt
A10-Acknowledgment card
A11-Reply notice
B1-Policy with schedule
Pw1-Complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
