ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 12 of the Consumer Protection Act,1986 praying this Commission to direct the OP pay a sum of Rs.2,36,350/- being the amount spent towards treatment of one Naren Mistri and Rs.1,66,157/- being amount spent for treatment of one Manju along with interest @ 18% per annum on the said amount along with Rs.90,000/- as deficiency in service and for damages and for costs and for such other reliefs as the Hon’ble District Commission deems fit and under circumstances.

2.     The brief facts of the complaint are that, the Complainant  is a building contractor.  One Manju and Naren Mistri were his employees. He is  engaged by in construction of the building by name ‘PRESTIGE MSR HEIGHTS” by the side of MS Ramaiah Engineering college Mattikere Bangalore. It is contended that said Manju aged 55 years and Naren Mishra Aged 45 years were his labourers. They attended the work on 13.01.2018 and while doing the work, at about 5.50 pm, the said persons fell from 15 feet height in the construction site and got hurt.  They were given first aid treatment by the other fellow workers. They reached their home afterwards.  Since they started feeling severe pain in their leg which was informed to the site supervisor. They were taken to M.S. Ramaiah Hospital at 2.30 am on 14.01.2018 and admitted to orthopedic ward of the hospital. They remained till 19.01.2018 as inpatient in the hospital and took treatment and medicines and were discharged on 17.01.2018.  Since the complainant had obtained insurance from OP.No.2, the incident was informed to OP.No.2 on 02.02.2018 and made claim of Rs.2,36,350/- in respect of both patients, and the claim form was submitted. On 16.05.2018, OP.No.1 and 2 rejected the claim as not tenable since the complaint was lodged after five days from the date of accident and it is mentioned by the hospital that they got injured at 2.30 am on 14.01.2018 as per the letter addressed by the hospital authorities to Sadashiv Nagar Police station and the date and time of admission is mentioned as 9.24 am on 14.01.2018 as per the discharge summary issued by the hospital authorities and the date of loss is being the weekly holiday as per the attendance i.e. Sunday.

3.     Since the said accident had taken place on Sunday, the nonworking day it has not occurred during the course of employment. Again after receiving the said letter from the OP, complainant clarified the error crept in the statement of police and the same was rectified and clarified.  Without considering the said clarification letter issued by Sadashivanagar Police, OP.No.2 has repudiated the claim submitted for reimbursement. It is the incident i.e. more important than the date and time.  The reason for OP.No.2 to repudiate the claim is the medico legal register extract maintained by the hospital.  The injured persons have clearly stated that the injuries have occurred at 5.50 pm on 13.01.2018,  Whereas, the same has been recorded wrongly by the police when they got clarification. 

4.     OP has further relied on the statements of the injured persons that they suffered injuries at 2.30 pm on 14.01.2018 and the same though clarified OP has ignored the statement.  The reason given by the OP.No.2 to repudiate the insurance claim are not correct and it is only within an intention to reject claim on one reason or the other.  The complainant has invested and paid lot of huge money in obtaining the policy for the betterment of his employees. The said insurance was in-force at the time of the incident. Without properly verifying the documents submitted by the complainant, Op.No.2 has rejected the claim on technical and whimsical ground which is against to principles of natural justice. Which has created financial hardship and mental torture for him and in respect of the poor persons who have suffered injuries.  The act of Op put the complainant into great loss, hardship. OPs are jointly and severally liable to pay the claim and also the damages as claimed and hence the complaint.

5.     Upon the service of notice, OP.No.2 appeared before the commission and Op.No.2 is the divisional office of OP.No.1 which is the head office.  Since OP.No.1 is the head office and Op.No.2 is the divisional office and this commission held that participation of OP.No.2 is a substantial representation of OP.No.1. 

6.     In the version filed by OP.No.2, it is contended that the complaint is not maintainable either in law or on fact, and also bad for misjoinder and non-joinder of necessary parties. The workmen who have alleged to have sustained injuries or necessary parties to the proceeding and they have not been made parties. Hence claim of the complainant is liable to be rejected.

7.     It is further contended that since elaborate issues required detail evidence, the same cannot be decided under summary proceedings.  Complainant is also having efficacious remedy before the commissioner of workmen compensation and hence this forum has no jurisdiction to decide the complaint.

8.     It is further contended that there ought to have been two separate complaint one each for the injured persons. Clubbing of both the claims is not proper and not maintainable.   It is also further contended that the complaint is filed on false, concocted, fabricated records which is contrary to the accident register and statement made by the injured persons recorded in the hospital and also records maintained in the hospital.  It is further contended that they are not aware as to Manju and Naren Mistri were the employees of the complainant and whether they have suffered injuries  as mentioned therein. Also not aware as to whether they suffered the said injuries during the course of employment. It has admitted the issuance of the policy and its period of validity.

9.     It is further contended that, as per the medico legal register of the hospital, the said two persons sustained injuries on at 2.30 a. on 14.01.2018 and same is mentioned as per the discharge summary. In the admission register, they were admitted to hospital at 9.20 am on 14.01.2018.  As per the police acknowledgment issued and as per the statement of Naren Mistri, the date and time of the accident was at 5.50 pm on 14.01.2018. The intimation given to the police by the hospital authorities is that the patient sustained injuries on 2.30 am on 14.01.2018.  When this is taken into consideration, 14.01.2018 being the holiday, the alleged injuries were not sustained during the course of employment and hence they have rejected the claim.  In view of the same entire allegations that the said persons got injured at 5.50 pm on 13.01.2018 and they were given treatment by the co-employees and was shifted to hospital 2.30 am on 14.01.2018 are all concocted.  They do not know the expenses met-out by the complainant in respect of providing treatment.  Denying all the allegations made in each and every para of the complaint. OP.No.2 prayed this commission to dismiss the complaint.

10.   In order to prove the case, Complainant and OP have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

11.   Our answers to the above points are:-

POINT NO.1 & 2:     In the Negative

                                For the following.

REASONS

POINT No.1 & 2:-

12.   Both parties have filed their affidavit evidence and the documents. It is not in dispute that the complainant is a building contractor and has obtained insurance from the OP.  It is also not in dispute that the said two employees of the complainant suffered injuries to their legs and were admitted to the hospital and discharged on 19.01.2018 from M.S. Ramaiah Hospital. The hospital authorities have issued the discharge certificate mentioning the date and time of the admission and the time during which the injured suffered the injury.  In the report made to the concerned police also they have mentioned the date and time. When this taken into consideration further the statement given by the injured it becomes clear that the said two persons suffered injuries on the mid night i.e. 2.30 a.m on 14.01.2018 which happens to be Sunday and also at that  the injuries suffered by them was not during the employment. 

13.   No documents worth believing and also eye witnesses to the incident have been examined and their evidence made available to show that the said two persons got injuries at 5.50 p.m on 13.01.2018 and that they were given first aid treatment by the co-employees. What prevented the complainant to adduce evidence in that respect is explained. In view of this, we have to hold that the act of repudiation on the ground that the said injury has not taken place during the course of employment is to be accepted and the denial of the claim cannot be termed as deficiency in service as well as unfair trade practice.

14.   Further the Doc. No.1 is the insurance policy filed by the complainant issued by OP upon perusing the same, it is mentioned therein that the insurance under the policy is subject to warranties and clauses (as per forms attached) “It is hereby agreed that this policy does not cover medical expenses”. As required under the provision 2A of the Workmen Compensation Act 1923 (As amended and described above).

15.   When this is taken into consideration, even assuming that the said two persons who suffered injuries during the working or during the course of employment, the complainant being the insured on behalf of his employees, is not entitle to claim and get the reimbursement of the medical expenses. His remedy is under Section 2A of the Workmen Compensation Act wherein the said injured person can make an application to the commissioner of Workmen Compensation by making the complainant as a party and get the remedy. 

16.   Further there is no documents provided by the complainant to show that he has incurred the expenses of medical treatment / paid the amount to the hospital. He has not produced any documents in that respect. In view of all the above, we are of the opinion that there is no deficiency of service on the part of OPs.

17.   Further the OP has taken up the contention that the complaint is not maintainable as the injured persons have not filed the complaint and hence it is bad for non-joinder of necessary parties. The same cannot be accepted as the complainant being the contractor/developer who has employed the said injured person for his work and he has obtained insurance in his name on behalf of the employees without naming them. When such being the case, the complaint is perfectly maintainable as filed by the complainant. Hence the contention of the OPs in that respect cannot be honoured. In view of the above discussions we answer POINT NO.1 & 2 IN THE NEGATIVE, we pass the following:-

ORDER

1. Complaint is hereby dismissed. Parties to bear their own costs.
2. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this day the 25^th day of January 2021)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the medical insurance policy.

Ex P2: Copy of the Medical records including the discharge summary in respect of Manju.

Ex. P3: Copy of the medical bills in respect of Manju.

Ex P4: Copy of medical records including the discharge summary of Narayan.S.P.

Ex P5: Copy of Medical Bills in respect of Naryan.S.P

Ex P6: Email correspondences.

Ex P7: Claim forum.

Ex P8: Letter written by insurance company.

Ex P9: Letter written by complainant dt:21.05.2018.

Ex P10: Letter written by Sadashivanagar P.S.

Ex P11: Letter issued by the hospital authorities to Police.

Ex P12: Letter written by Sadashivanagar P.S.

Ex P13: Letter issued by the hospital authorities to the Police.

Ex P14: Copy of the legal notice dt:29.09.2018.

Ex P15: Copy of the reply dt: 31.10.2018.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Rudresh, Senior Divisional Manager of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1 & R2: Two discharge summaries in respect of complainant.

Ex R3 & R4: Two claim forms.

Ex R5: Letter issued by OP to the complainant dt: 16.05.2019

Ex R6 & R7: Letter by Sadashivnagar P.S.

Ex R8: Copy of letter dt: 21.05.2019 by the complainant to OP

Ex R9 & R10: Copy of the MLC Report.

Ex R11: Copy of reply.

MEMBER                                PRESIDENT

RAK*