Date of filing: 14.02.2017                                                                      Date of disposal: 12.12.2017.

Complainant: Mrs. Urmila Devi Agarwal, W/o.Sri Jagadish Prasad Agarwal, resident of

                           Fatehpur, near Durga Cold Storage, P.O.-Sitarampur, P.S.-Asansol(South),

                           Dist.-Burdwan, Pin-713359.

-VERSUS-

Opposite Party: 1. United India Insurance Co. Ltd., having its Divisional Office at 37 G.T. Road

                                   (East), Asansol, P.S.-Asansol (South), Dist.-Burdwan, Pin-713301, W.B.,

                                    represented by its Senior Divisional Manager.

                            2.  The Regional Manager, United India Insurance Company Ltd., having its

                                     Regional Office at 38B, J.L. Nehru Road, Kolkata-700 071.

Present: Hon’ble President: Smt.Jayanti Maitra(Ray).

    Hon’ble Member:  Miss Nivedita Ghosh.

Appeared for the Complainant                     :Ld. Advocate, Debdas Rudra.

Appeared for the Opposite Party No.1 & 2:  Ld. Advocate Ahibhushan De.

JUDGEMENT

This is a case U/s.  12  of the C.P.  Act for an award  directing the O.Ps.  to pay Rs.95,500/- towards the weekly benefit for 19 weeks of disablement as per policy condition along with one medical bill dated 28.9.2015, to pay Rs.10,000/- towards compensation for mental pain, agony and harassment and to pay  litigation cost of Rs.25,000/- to the complainant.

The complainant’s short case in hand is that she was insured under Individual Personal Accident Policy being Policy No.0318004214P103064739 for the period from 11.8.2014 to Midnight of 10.8.2015 issued  by United India Insurance Company Ltd., through the O.P. No.1. The claim was for only weekly benefit as per terms of the Personal Accident Policy.  It is to be noted that the complainant was insured under such policy for more than ten years and after each and every year the policy was renewed by the O.P. No.1. 

On 9.10.2014 the complainant  fell from Tempo (Auto) and immediately  the husband of the complainant took her to the Diagnostic Centre for X-ray of the left leg.  Finding the X-ray report it was detected that there was major fracture on the left leg of the complainant and immediately she was taken to Mission Hospital, Durgapur  and she was admitted there on 9.10.2014 under Dr. Nirmal Kumar Jajodia.  On 11.10.2014 Dr. Jajodia operated the left leg of the complainant and on account of fatal injury on left leg, rod was implanted on the left leg of the complainant and ultimately the patient was discharged from the hospital on 14.10.2014.  The doctor was advised for full bed rest and as per advice of the doctor nurse-cum-maid was appointed as because the complainant was fully confined to bed rest and physiotherapy was done daily until and unless fit certificate was issued by the doctor.

After admission of the complainant in the hospital the son of the complainant intimated the fact to the O.P. No.1 and requested to issue claim form.  On 5.11.2015  the husband of the complainant also sent a letter stating the medical condition of his wife and also stated until and unless the fit certificate of his wife was given by the doctor , he was not in a position to lodge the claim before the O.P. No.1.  The complainant visited the Mission Hospital several times as per advice of the concerned doctor.

The complainant lodged claim before the O.Ps. on 28.9.2015 after observing all the official formalities submitted the claim form along with medical documents and fitness certificate of the treating doctor and requested to look into the matter.  The O.P. No.1 sent a letter on 13.1.2016 stating the fact that they have received those required documents in original for hospitalization claim and again requested to submit the certified copies of the same at the earliest.

On 25.1.2016 enclosing all the required documents sent a letter to the O.P. No.1 and requested to settle the claim as early as possible.  But O.P. No.1 repudiated the claim of the O.P. No.1 by stating that from the documents it has not been established any impact on temporary total disablement in respect of the employment/occupation of the complainant and no financial loss from occupation was established.  More over the O.P. No.1 also take plea that in the discharge summary of the hospital, there was alleged history of domestic fall on hard slippery surface, but in the claim form the complainant has mentioned that the accident occurred due to fall from Tempo, which revealed as mis-representation and the O.ps. were treating the claim as ‘No Claim’.  The grounds of repudiation of the claim taken by the O.ps. are arbitrary, illegal and beyond the provisions of law.  Such kind of repudiation clearly indicates deficiency in service and unfair trade practice on the part of the O.Ps.

After receiving the repudiation letter the son of the complainant sent a letter to the O.P. No.1 stating the fact that complainant has two policies one is Mediclaim Policy being No.0318002814P103062403 and another is Personal Accident Policy being No.0318004214P103064739.   The son of the complainant also stated that the complainant has submitted the discharge certificate of Mission Hospital, Durgapur along with the claim form in connection of mediclaim policy and that claim has already been reimbursed by the O.Ps. But this claim lodged by the complainant was in connection of Personal Accident Policy which is totally different from the Mediclaim Policy and the complainant is entitled to get claim as per policy.  But the O.P. No.1 neither considered the matter nor settled the claim of the complainant.  Finding no other alternatives the complainant filed this instant case for relief as prayed for.

The O.P. No.1 & 2 contested this case denying inter-alia all the material allegations as alleged by the complainant and stating that complainant, Urmila Devi Agarwal had taken an Individual  Personal Accident Policy bearing No.0318004214P103064739 for the period from 11.8.2014 to 10.8.2015.  The said insured lodged a Accident Claim under the above policy in the category of Weekly Benefits against her accidental fall leading to injury over left thigh.  O.P. No.1 issued claim form for the same and thereafter the complainant submitted her claim form wherein she mentioned in column No.4 that accident occurred due to fall from Tempo (Auto).  The insured also submitted some medical documents along with her claim form.  Be it mentioned that from the discharge certificate of the hospital it is found that the cause of accident is written as ‘domestic fall’ on hard slippery surface, leading to injury over left thigh, whereas in the claim form she mentioned the cause as ‘fall from tempo’, which may be considered as mis-representation  or mis-description of facts. Mis-description of the cause of accident differing from what is declared in the claim form and discharge certificate of the hospital dated 14.10.2014 by which the policy is voidable as per the policy clause.

The O.P. No.1 also submits that vide its letter dated 13.1.2016 requested to the insured to submit some documents to substantiate the claim and to know the nature and severity of accident.  In reply the insured submitted partial documents.  Be it mentioned that amongst the documents by this O.P. No.1, Insurer there was requisition of leave certificate and loss of pay certificate from the employer  of the insured, which the insured did not comply.  From the submitted documents, it has not been established that there was any impact on temporary total disablement in respect of her occupation/employment, as no where loss of salary/income was established and could not submit any documents related to leave for those disable period including financial loss from occupation.  The O.P. No.1 sent its repudiation letter dated 1.2.2016 under policy condition No.1(f) which reads as follows:-

‘ If such injury shall be the sole and direct cause of Temporary Total Disablement, then so long as the insured person shall be totally disabled from engaging in any employment or occupation or any description whatsoever a sum @ 1% of the Capital Sum Insured stated in the schedule herein per, but in any case not exceeding Rs.5000/- per week in all under all policies per week in any case can not exceeding 25% of the monthly salary’.  Be it mentioned  that non-submission of required documents substantiating loss of income for confinement period towards satisfactory proof of claim, as per policy condition No.2.  The insured  could not establish that she was temporarily or totally disabled from engaging herself in any employment  or occupation or any description whatsoever by submitting required documents, such as loss of pay certificate and leave certificate from the employer thereby non-complying policy condition No.1(f) as mentioned hereinabove. 

These O.Ps. also submit that  they have received the letter of the complainant on 25.1.2016 along with I.T Certificate, where she has stated that the preset claim is for only weekly benefit as per the terms of personal accident policy and hence bills, receipts, leave details etc. are not required.  In this connection these O.ps. informed to the complainant that to know the nature and severity of accident all the documents viz. X-ray report etc. were also asked.  The complainant has not been mentioned about any impact on Temporary Total Disablement in respect of occupation/employment [as nowhere loss of salary/income] was established and could not submit any documents related to leave for those days and no financial loss from occupation was established [as per policy condition in any case weekly benefit shall not exceed 25% of monthly salary].  Moreover,  in the discharged summary of the hospital there is alleged history of domestic fall on hard slippery surface but in the claim form the complainant has mentioned that the accident occurred due to fall from tempo, which reveals as misrepresentation of fact.  Under the aforesaid fact, these O.Ps. have duly informed to the insured that instant claim of the complainant, is not tenable under policy conditions and as such they treated he claim of the complainant as ‘No Claim’ vide its letter dated 1.2.2016.  Hence, this case and prayed for dismiss the instant case with cost.

DECISION WITH REASON

            To prove the case the complainant files her evidence on affidavit where she stated all the fact.  She also filed documents, medical papers, discharge certificate, policy papers and letters of correspondence between the parties.

            The O.P. prayed for acceptance of his written version supported by affidavit as evidence of O.P.  The Ld. Lawyer of the O.P. cited a decision reported in I (2015) CPJ (NC).

            Thereafter both parties placed their arguments.  After hearing of both sides and on perusal of the documents filed by the parties  it is admitted position that the complainant purchased the policy of Individual Personal Accident as mentioned above and total sum assured was Rs.3,00,000/-.  After going through the evidence on record as well as evidence filed by the parties and also after hearing argument Ld. Lawyer of both sides it is clear to this Forum that the complainant sustained injury due to accidental fall and was admitted in the hospital on 9.10.2014 and undergone operation in his left knee for fracture injury.   She was discharged on 14.10.2014.  The discharge certificate goes to show all these facts.  The complainant submitted medical certificate with claim form wherein it is specifically stated that she was totally prevented from attending to any portion of her business for long four months.  The certificate was issued on 25.9.2015 by Dr. N.K. Jajodia.  On that date of giving certificate the preset condition of the complainant is  found that she was moving with support of walking aid i.e. on 25.9.2015.  However, there is no other documents with particular date showing her total disablement but for argument’s sake as she had undergone for surgery in her left knee on 9.10.2014 with rod was implanted and certainly she was confined to bed for some considerable period of time.

            Ld. Lawyer of the O.P. argues alleging that complainant herself misrepresented the fact as ‘history of domestic fall on hard slippery surface’, is noted in the discharge summary of the hospital whereas in the claim form she mentioned that accident occurred due to fall from Tempo (Auto Rikshow).  As it may be it is not disputed that she suffered accidental fall and received fracture injury on her left leg.  In terms and conditions of the policy ‘ If such injury shall be the sole and direct cause of Temporary Total Disablement, then so long as the insured person shall be totally disabled from engaging in any employment or occupation or any description whatsoever complainant is entitled to a sum @ 1% of the Capital Sum Insured as stated in the schedule herein per week, but in any case not exceeding Rs.5000/- per week in all under policies per week and in any case can not exceeding 25% of the monthly salary’ [Clause-1(f)].  The complainant submits documents that she is sole proprietor of ‘Agarwal Offset Printers’.  In the written version the O.P. admits that they have received the letter of the complainant on 25.1.2016 along with IT Certificate.  However, O.Ps. argues that complainant failed to establish by sufficient documents regarding financial loss from occupation in details.  That from the documents filed by the complainant and the claim form submitted by the complainant it is clear that complainant as proprietor of Agarwar Offset Printers, must have suffered financial loss during the period of her total disablement which is at least four months i.e. 16 weeks following her operation on 9.10.2014.  Admittedly the complainant had already realized the reimbursement of medical expenses under the Mediclaim Policy. Therefore, under the terms and conditions of the policy in question and under Clause-1(f), the complainant is also entitled to realize  from O.P. Insurance Company the weekly benefit under the Insurance Policy.  To our considered view if 1% of the actual sum assured is given to the complainant, herein per week under Clause1(f ), then it will meet the ends of justice.   From the medical documents filed by the parties and from the medical certificate with claim form, we can safely hold that she was totally disabled at least four months i.e. 16 weeks and she is entitled to get 1% of the sum assured i.e. Rs.3000 X 16 (weeks) =Rs.48,000/- from the Insurance Company as weekly benefit for 16 weeks of disablement as per policy condition Clause-1(f) of policy No. 0318004214P103064739.  With this finding, we disposed of this case accordingly.  C.F. paid is correct.  Hence, it is

Ordered

that the case be and the same is allowed in part on contest against the O.Ps. without any cost. 

The O.Ps. are directed to pay Rs.48,000/- (Rs.3000/-  X  16 weeks) to the complainant within 45 days from this date of order, failing which the sum will carry an interest of 8% p.a. till its realization.

The complainant is at liberty to execute this order in accordance with law.

Let the copies of this order be supplied to the parties free of cost.

        Jayanti Maitra (Ray)        

             Dictated and corrected by me.                                                         President      

                                                                                                                   D.C.D.R.F., Burdwan

                   Jayanti Maitra (Ray)

                           President,

                   D.C.D.R.F., Burdwan

(Nivedita Ghosh)

Member

D.C.D.R.F., Burdwan