Tripura

West Tripura

CC/13/106

Shri Sanjoy Datta - Complainant(s)

Versus

United India Insurance Co. Ltd. Agartala Division - Opp.Party(s)

Mr. A.Sengupta.

03 Feb 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

CASE NO:   CC- 106 of  2013
 
Shri Sanjoy Datta,
S/O- Sri Dipak Datta,
Vivekananda Pally,
P.S.- Sidhai, Mohanpur,
District- West Tripura.            ............Complainant.

    
        __________VERSUS__________

 

United India Insurance Co. Ltd.
Agartala Division, 
Agartala
District- West Tripura.              ........... Opposite party.
    

                    __________PRESENT__________

 SHRI S. C. SAHA
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA

SHRI B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

For the Complainant             : Sri Abhijit Sengupta,
                                             Advocate.                      
                                              
For the Opposite Parties        : Sri Jiban Krishna Sen,
                                             Advocate.
                       
    
        JUDGMENT  DELIVERED  ON :- 03.02.15.

 J U D G M E N T

        This is a complaint U/S 12 of the Consumer Protection Act,1986 (herein after referred to as 'the Act') filed by the complainant, Sri Sanjoy Datta of Sidhai, Mohanpur, West Tripura  against the the O.P., namely United India Insurance Co. Ltd., Agartala Division, Agartala over a consumer dispute alleging negligence and deficiency in service on the part of the O.P.
2.        The fact of the case as gathered from the record is that the complainant was owner cum rider of the Motor Cycle bearing registration No- TR 01 J 6963 which was duly insured with the O.P. Insurance company with the coverage of Personal Accident Benefit. On 04.10.11 at about 3 P.M. he was coming from Hazamara to Mohanpur riding his motor cycle. On way to Mohanpur when he reached near Rangacherra road culvert, suddenly fell down from the motor cycle for improper erection of hump on the road near the culvert. Soon after the accident, he was brought to Mohanpur hospital where from he was shifted to GBP hospital for better treatment. As he sustained head injury, he was referred to SSKM/ AMRI Hospital, Kolkata for specialised treatment by the standing Medical Board, GBP Hospital, Agartala on 05.10.11. He received treatment in Medica Super Specialty Hospital, Kolkata  from 05.10.11 to 11.10.11 as an inpatient. On being discharged from the hospital he attended the out patient department of the said hospital for medical checkup. As he was busy with his treatment, on 20.06.11 he lodged a complaint with the Officer incharge of Sidhai Police Station. The gist of the complaint was entered in the G.D. Book vide Sidhai P.S. G.D. Entry No- 1153 dated 26.11.11. On 06.02.12 he preferred his claim with the O.P. Insurance Company for reimbursement of the expenses incurred by him in connection with his treatment in Kolkata as he was under the coverage of package Personal Accident Insurance Policy. But the O.P. did neither pay the expenses incurred by him towards his medical treatment in Kolkata nor responded to his claim. According to the complainant, the conduct of the O.P. attracts negligence and deficiency in service. Hence, this complaint. 

3.        The O.P., United India Insurance Co. Ltd. has contested the case by filing written objection. The O.P. Insurance company gave evasive denial of the allegations made by the complainant in his complaint.

4.        In support of the case, the complainant has examined himself as P.W.1 and has proved and exhibited the following documents:
    Exhibit 1: Discharge Summary issued by Medica Superspecialty Hospital, Kolkata,
    Exhibit 2: Referral Certificate,
    Exhibit 3: Copy of G.D. Entry, 
    Exhibit 4: Copy of Driving License,
    Exhibit 5: Letter dated 06.02.12 addressed to the O.P.,
    Exhibit 6: Policy of Insurance,
    Exhibit 7 Series:  Medical Documents/vouchers,
    Exhibit 8 Series: 5 Air tickets.        
5.        No evidence either oral or documentary has been adduced by the O.P. Insurance company. 
            FINDINGS:
6.        The Points that would arise for consideration in this proceeding are:
Whether the complainant is entitled to any compensation for the bodily injury suffered by him in a road traffic accident as owner cum rider of the motor cycle bearing registration no- TR 01 J 6963 under the coverage of Personal Accident Cover Policy. If so, what would be the quantum of compensation;
Whether the O.P. was guilty of negligence  for deficiency in rendering service.

7.        We have already heard the arguments advanced by the learned counsel appearing for the parties. Also perused the pleadings, documents on record and the evidence adduced by the complainant meticulously.
8.        In the written objection, the O.P. Insurance Company has neither admitted nor disputed the claim of the complainant. No reason has been assigned for non settlement of the claim preferred by the complainant. Admittedly, at the time of accident the complainant was under the coverage of Personal Accident cover Policy with  the O.P. Insurance company. 
9.        While arguing the case, it was contended by the learned counsel appearing for the O.P. that the complainant is not entitled to any compensation for the grievous injury allegedly sustained by him due to the road traffic accident while driving the motor cycle in question as owner cum rider. According to him, as per  terms and condition of the Personal Accident Coverage Policy, the injury sustained by the complainant does not fall within the categories mentioned in the policy.

10.        Personal Accident cover policy for the owner cum driver, is subject, otherwise to the terms, exceptions, conditions and limitations of the policy and that the company undertakes to pay compensation as per the following scales for bodily injury/ death sustained by the owner cum driver of the vehicle in direct connection with the vehicle insured or whilst mounting and dismounting from or travelling in the insured vehicle as a co-driver, caused by violent, accidental external and visible means which independently of any other caused shall within six calender months of such injury result in.
        As per terms of Personal Accident Cover Policy, there are four types of injuries, for which separate scales of compensation is provided. These are-
    (i) Death. (ii) loss of two limbs or sight of two eyes or  one limb and sight of one eye. (iii) loss of one limb or sight of one eye. (iv) permanent total disablement from injuries other than named above.
        Scale of compensation for injury nos. (i), (ii) and (iv) are 100% and for injury no. (ii) is 50%.

11.        Admittedly, the injury sustained by the complainant does not fall within any one of the above categories. In this circumstance, now it is to be seen whether the complainant is entitled to any compensation under the Personal Accident Cover policy which is not covered by any of the injuries mentioned in the policy of insurance. 

        In this connection, it is advantageous here to refer to the judgment dated 15.03.2013 rendered by the Madras High Court in C.M.A. No. 3006 of 2012 (National Insurance Co. Ltd.  Vrs. Krishnan) wherein it has been held that:

    ''The contention that the Insurance Company need not pay any compensation to any grievous injury or permanent disablement,  arising out of the injuries, except for Items 1 to 4, specified in the Personal Accident Cover Policy, cannot be accepted, as the contract of  insurance, viz., Personal Accident Cover Policy for the owner-cum-driver, is also a Motor Transport Policy, under IMT 15, recognised by the Motor Tariff Committee.  As stated supra, when the policies issued under the Insurance Act, are recognised by the Committee, subject to the regulations and instructions, issued by the Committee, it is not open to the Insurance Companies to disown, their liability to pay compensation, in respect of other bodily injuries, wherein, scales of compensation are not specifically provided.  There is no negative covenant in the policy, that no compensation would be paid, in respect of other bodily injuries.   It is well settled that the Motor Vehicles Act is a beneficial legislation.  Reference can be made to a decision of the Apex Court in Smt.Rita Devi and others v. New India Assurance Co. Ltd., reported in AIR 2000 SC 1930, wherein, in construing the provisions of the Act, the Supreme Court held that it is to advance the beneficial purpose underlying the enactment in preference to a construction, which tends to deviate the purpose.''
        It has been further held that'' such a narrow construction of the terms of the policy proposed by the Insurance company, would run to the purpose of the beneficial legislation. For the above said reasons, this court is not inclined to deny the benefit of Personal Accident Cover to the respondent/claimant, who is the owner-cum driver of the vehicle involved in the accident.''

12.        In our considered opinion, the ratio of law laid down by the Madras High Court in the above cited case is also applicable in the present case as facts and circumstances of both the cases are similar to each other. So, relying upon the aforesaid judgment passed by the Madras High Court, we hold that the complainant is entitled to compensation under Personal Accident cover policy though the injury sustained by the claimant does not fall within the categories mentioned in the policy of insurance.

13.        The complainant in his complaint as well as in his evidence as P.W. 1 clearly stated that on the fateful day of accident he was driving the motor cycle in question as the owner cum rider. When it reached near Rangacherra road culvert, he suddenly fell down from the motor cycle due to improper erection of hump on the road near the culvert. As a result of the accident, he sustained grievous injuries on his person. Initially he was brought to Mohanpur Hospital where from he was shifted to GBP hospital, Agartala. Considering the seriousness of the injury sustained by him, he was referred to Kolkata by the Standing Medical Board, GBP Hospital, Agartala for specialized treatment. The evidence of the complainant has remained unrebutted and unshaken during cross examination. The O.P. has not led any evidence in rebuttal. Until contrary is proved, we will have to rely upon the evidence adduced by the complainant. It appears that the complainant underwent treatment in Medica Superspecialty Hospital, Kolkata from 5th October 2011 to 11th October 2011 as in patient and he was diagnosed as multiple foci of Hemorrhagic contusion in left cerebral hemisphere mainly concentrated in left temporal lobe with fracture of posterolateral wall of right maxillary sinus. The medical documents and vouchers (exhibit 7 Series) produced by the complainant suggest  that he spent a sum of Rs.54,394/- towards his treatment in Medica Superspecialty Hospital.
14.        The air tickets (exhibit 8 series) submitted by the complainant demonstrate that he incurred expenditure for a sum of Rs.45,935/- for his journey by air from Agartala to Kolkata and back in connection with his treatment. It is already pointed out that the complainant was referred to Kolkata by the Standing Medical Board vide referral certificate(exhibit-2) to receive specialised treatment in Kolkata as the injury sustained by him on his head was grievous in nature. Since the complainant was referred to Kolkata for specialised treatment by the Standing Medical Board, he is certainly entitled to reimburse the cost of journey performed by him and his companions including the doctor.
15.         There is not a single scrap of paper to show that the complainant had spent any amount for repairing of the motor cycle in question. Hence, he is not entitled to any amount towards cost of repairing of the motor cycle as claimed.
16.        There is no denial of the fact that at the relevant time of accident the motor cycle in question was under the coverage of insurance under Personal Accident Cover Policy with the O.P. Insurance Company. Therefore, the O.P. Insurance Company is liable to indemnify the complainant for the expenditure incurred by him towards his treatment. In our opinion, the O.P. Insurance Company did not do the right thing by not settling the claim preferred by the complainant and hence the action of the O.P. falls within the ambit of negligence which amounts to deficiency in service.
17.        Resultantly, the complaint U/S 12 of the Act filed by the complainant is allowed. The O.P. Insurance Company is directed to pay Rs.1,00339/-(Rs. 54,397/- as cost of medical treatment plus Rs.45,935/- as travelling expenses) to the complainant as compensation. The O.Ps also directed to pay Rs.5000/- to the complainant for causing mental agony and harassment together with Rs.2000/- as costs of litigation. The O.P. will pay the said amount within 6(six) weeks from the date of judgment, failing which the payable amount will carry interest @ 9% P.A. from the date of judgment till the payment is made.  

18.                                                                                      A N N O U N C E D

 

SRI S. C. SAHA
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 

SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM.
            AGARTALA, WEST TRIPURA.