IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 31st day of March, 2016
Filed on 05.08.2013
Present
1.Smt. Elizabeth George (President)
2.Sri. Antony Xavier (Member)
3.Smt.Jasmine.D. (Member)
in
C.C.No.248/2013
between
Complainant:- Opposite Party:-
Sri. Varghese.K.C. @ Varghese Chacko United India Insurance Co. Ltd.
Kayikkarakottayil, Muhamma P.O. Represented by its Divisional Manager
Alappuzha District Divisional Office, Mullackal
(By Adv. James Chacko) Alappuzha
(By Adv. C. Muraleedharan)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant was the owner-cum-rider of the motor cycle bearing Regn. No. KL-04/S7912, at the material time of the accident, which was duly comprehensively insured by the opposite party for all risks, damages and losses. The policy also covers owner-driver for Rs. 1 lakh in case of accident caused injuries to the policy holder and for which opposite party duly received extra premium of Rs.50/- from complainant for covering Personal Accident of Owner-Driver which was duly mentioned in policy itself. The complainant was the said policy holder. On 31.12.2011 at about 9 a.m. when the complainant was riding his own motor cycle bearing Regn. No. KL-04/S7912 along the southern side extremity of Mangalapuram-Mararikkulam Kalithattu Junction road from east to west in direction at slow speed, sounding the horn, keeping proper side and wearing a helmet reach ‘Puthenthodu’, meanwhile a cyclist which came from east to west in direction in-going in front of complainant riding motor cycle, made a sudden turn towards northern side without any signal and carelessly, on seeing this complainant applied sudden brake for saving the life of the cyclist and all of a sudden complainant riding motor cycle skidded and complainant along with his motor cycle fell on the road and the complainant had sustained multiple abrasions and fracture right radius bone. He was admitted to Sacred Heart Hospital, Cherthala and he underwent major operation for implant nailing to his fractured right hand. He continued treatment there from 31.12.2011 to 14.1.2012. And his fractured right hand put in plaster in full cast for three months and bed-rest was advised. He needs further operations in future for implant removal and allied treatment. After the accident complainant duly served and lodged to the opposite party the relevant documents including GD entry of Mannancherry Police Station, copy of RC book, copy of insurance policy certificate, medical bills along with an application to get the legal entitled assured amount of Rs.1 lakh to the complainant. But unfortunately the claim was repudiated by the opposite party. The act of the opposite party in repudiating the claim of the complainant and is quite illegal and against the settled principle of law. Hence the complaint is filed.
2. The version of the opposite party is as follows:-
The injuries alleged to have been sustained by the complainant will not come under the coverage of the policy held by the complainant. According to the opposite party, the complainant has never sustained any permanent total disablement. The complainant is not entitled to get any of the relief sought for from this Forum. The complaint only liable to be dismissed with cost to the opposite party.
3. The complainant was examined as PW1 and documents produced were marked as Exts.A1 to A9. One witness was examined as PW2. The opposite party was examined as RW1. The documents produced were marked as Exts.B1 and B2.
4. The points that arose for consideration are as follows:-
1) Whether there is any deficiency in service on the side of the opposite party?
2) If so the reliefs and costs?
5. Complainant is the injured owner cum rider of the vehicle involved in the accident. The vehicle was having a valid policy for the personal accident to the insured vehicle. Due to the accident the complainant sustained serious injuries. According to the opposite party as per the conditions of the policy, the injury sustained by the complainant would not entitle him to the benefit of policy. According to the complainant, as per the terms and conditions of the package policy issued by the opposite party, he is entitled to get Rs.1 lakh for his serious injuries sustained in the accident that caused him permanent disability. In order to substantiate his allegations complainant produced Ext.A9 the disability certificate issued by the Dr. Joseph Dixon in favour of the complainant. As per Ext.A9, complainant was having 12% permanent disability due to the alleged accident. According to the opposite party as per Section III of the policy condition, opposite party is liable to pay on four grounds as stated below:-
1) Death - 100%
2) Loss of two limbs or sight of two eyes or one limb and sight of one eye - 100%
3) Lost of one limb or sight of one eye - 50%
4) Permanent total disablement from injuries other than named above - 100%
Since the complainant does not sustained any of the injury stated in the injury item No. 1 to 4, he is not entitled to get any benefit as per the personal accident coverage as stated in the policy. In Gulam Vs. Oriental Insurance Company Ltd. rendered in 2014 (4) CPR 553 (National Commission) confirmed the findings of the State Commission and observed that the complainant therein failed to prove that he suffered any injury resulting in disability which is covered by the conditions of the policy. The injuries suffered by the complainant are not fit for payment under policy. The injuries suffered by the complainant not being under the conditions of the policy, the opposite party has not committed any dereliction of services by not making the payment. The same findings are applicable in this case also. “In the disability certificate produced by the complainant, the described injury does not come to be in the ambit of conditions of the insurance policy. From the perusal of conditions of insurance policy, this is clear that in case of death in accident 100% compensation and disability of eye sight in both the eyes or for one limb and one eye, there is provision of providing 100% compensation. Whereas for disability in one limb and one eye, there is provision of giving 50% compensation and for permanent disability, there is mention of giving 100% amount. Whereas, in the above case, the applicant has not submitted any such certificate from which it can be established that he has got any permanent disability of this type.” According to the certificate produced by the complainant, the complainant has suffered 12% permanent disability. According to the complainant he took the policy under the bonafide belief on the basis of the assurance given by the opposite party that the personal accident coverage to the owner cum driver of the insured vehicle is Rs.1 lakh. This Forum has jurisdiction to see only with regard to the defect and deficiency in service from the part of the opposite party. The contention taken by the opposite party is that as per the conditions in the policy, the liability is restricted or limited to the extent of disability given in the slab. But in a similar case there is a reported decision in ACJ 2014 page No.721 in Bajaj General Insurance Company Ltd. Vs. C. Ramesh wherein it is held that “under personal accident cover, insured company is liable for injuries sustained by the owner cum driver of the vehicle. There is no negative covenant in the policy that no compensation would be paid in respect of other bodily injuries, but the aggregate of the compensation shall not exceed Rs.1 lakh during anyone period of insurance.”
Since this Forum has no jurisdiction to ascertain the damages on the basis of injuries, or disability sustained to the insured like that of Motor Accident Claims Tribunal, this Forum is constrained to dispose the above complaint without prejudice to the right of the complainant to approach the appropriate Forum to redress his grievance.
In the result, complaint is dismissed.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in
open Forum on this the day 31st of March, 2016.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Varghese Chacko (Witness)
PW2 - Dr. Bindulal (Witness)
Ext.A1 - True copy of the registered notice with a/d
Ext.A2 - GD extract for Mannancherry Police Station
Ext.A3 - Attested copy of the RC book
Ext.A4 - Attested copy of Motorcycle/Scooter – package policy schedule
Ext.A5 - Attested copy of Driving license
Ext.A6 - Certificate dated 31.12.2011 of Dr. Joseph Mathew
Ext.A7 - Original discharge card
Ext.A8 - Medical bills
Ext.A9 - Disability certificate dated 17.12.2013
Evidence of the opposite party:-
RW1 - Bindu. B. (Witness)
Ext.B1 - Terms and conditions of the two wheeler package policy
Ext.B2 - Certified Motorcycle/Scooter – package policy schedule
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- pr/-
Compared by:-
