DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 63 of 03.03.2008<br /> Decided on : 30-07-2008<br /> <br /> Vipin Thakur S/o Ratan Singh Thakur aged about 31 years R/o H. No. 14976, N.F.L. Mandir Colony, Bathinda.<br /> ... Complainant<br /> Versus<br /> <br /> United India Insurance Company Limited, Divisional Office, The Mall, Bathinda through its Divisional Manager.<br /> ... Opposite party<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. D.C. Garg, Advocate.<br /> For the Opposite party : Sh. Jai Gopal Goyal,Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Complainant had purchased Personal Accidental Insurance (P.A. Insurance) from the opposite party vide Cover Note No. 1032042 dated 29.8.06 . Policy has not been issued till date. Insurance Cover Note was issued for the period 29.8.06 to 28.8.07. Amount covered is upto Rs. 60,000/- under Table IV medical expenses and Rs. 1,00,000/- under Table II. He had met with an accident on 13.9.06 at about 9.30 p.m in the area of Police Station Cantt. Bathinda while he was coming from Nathana to Gobindpura on motor cycle No. PB-19-B-2685. Motor cycle was being driven by Sanjeev Sharma. Complainant was pillion rider. Daily Diary Report No. 24 was recorded in Police Station Cantt. On the date of accident, he was an employee of M/s. Shiva Lubricants and was posted at Phoos Mandi Office. He was getting salary of Rs. 3,000/- per month. After the accident, he was immediately brought to Dr. H S Bakshi, Bibiwala Road, Bathinda He charged Rs. 8,000/- for the treatment. Since the injuries on his person were serious, he was shifted to DMC Ludhiana on 15.9.06 where he remained admitted upto 30.9.06. A sum of Rs. 48,140/- were charged excluding medicines as he was indoor patient. Treatment in DMC, Ludhiana was provided to him by Dr Sanjiv Mahajan. Complainant remained confined to bed at his house till 27.1.07. He was again admitted in DMC Ludhiana on 28.1.07 and remained under treatment of Dr. Sanjiv Mahajan upto 4.2.07. He was again operated at DMC Ludhiana and remained confined to bed at his house. He was getting follow up treatment from Dr. Sanjiv Mahajan and was getting himself checked up from him fortnightly. He was confined to bed at his house till 27.11.07. Civil Sugeon Bathinda issued Disability Certificate on 28.11.07 as his right leg has become short. Opposite party had demanded some documents vide letter dated 25.4.07. He had submitted original claim form with personal accident insurance medical report duly completed and signed by Dr. Sanjiv Mahajan, original discharge slip of Dr. H S Bakshi, Original discharge card of D.M.C. Ludhiana from 15.9.06 to 30.9.06, photocopy of last medical advice of Dr. Sanjiv Mahajan dated 11.4.07, original leave certificate from employer, original bill for a sum of Rs. 48,140/- dated 30.9.06 of DMC Ludhiana and original X-ray film vide receipt No. 1385 on 6.8.07. Since he was confined to bed upto 27.11.07, necessary papers were submitted to the opposite party by his brother. Registered letter was issued to the opposite party on 29.3.07 claiming the amount. Letter dated 8.8.07 was issued by the opposite party again demanding fitness certificate from treating physician/surgeon. He had already submitted the certificate dated 18.7.07 duly filled and signed by Dr. Sanjiv Mahajan on 6.8.07. In the month of January, 2008, opposite party was approached. Request was made for making payment of Rs. 48,140/- as per bill of DMC Ludhiana and Rs. 1.00 Lac on account of disability as per Table II and the amount concerning bed rest of 61 weeks @ Rs. 300/- per week under Table IV. Opposite party paid no heed. In these circumstances, instant complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') has been preferred by the complainant seeking direction from this Forum to the opposite party to pay him Rs. 48,140/- as per bill of DMC Ludhiana; Rs. 1.00 Lac on account of disability under Table II and amount @ Rs. 300/- per week under Table IV for bed rest of 61 weeks alongwith interest @18% P.A. from the date of accident till payment; Rs. 15,000/- as damages for mental tension, agony, pain and sufferings and Rs. 10,000/- as litigation expenses.<br /> 2. Opposite party filed reply of the complaint taking legal objections that complainant is not consumer; he has no cause of action and locus standi to file the complaint; complaint is not maintainable in the present form; he is estopped from filing it by his act and conduct; it is false and frivolous and is bad for non-joinder of necessary party i.e. Shiva Lubricants and Insurance Company his alleged employer; this Forum has got no jurisdiction to entertain and try the complaint; complaint is maintainable before Deputy Commissioner, Bathinda exercising powers of settlement Commissioner hit and run under the Solation Fund Scheme 1989 Clause I. On merits, it admits that complainant had purchased Personal Accident Insurance (P.A. Insurance) from it. Cover note was issued for a sum insured sum of Rs. 1,60,000/-. Insurance was valid for the period from 29.8.06 to 28.8.07 and was covering Rs. 60,000/- under Table IV medical expenses and Rs. 1.00 Lac under Table II. It denies that complainant had met with an accident while he was coming from Nathana to Gobindpura on motor cycle No. PB-19-B-2685 and the same was being driven by Sanjeev Kumar and that he (complainant) was pillion rider. It denies that DDR No. 24 was recorded in Police Station Cantt Bathinda and that complainant was employee of M/s. Shiva Lubricants and was drawing salary of Rs. 3,000/- per month. Inter-alia its plea is that he was unemployed. Similarly it denies that complainant was taken to Dr. H S Bakshi due to the injuries and was shifted to DMC Ludhiana on 15.9.06. No intimation regarding the patient was received. Similarly there is denial on its part regarding admission of the complainant in DMC Ludhiana from 15.9.06 to 30.9.06 and averment that he spent Rs. 48,140/- as indoor patient and that he paid Rs, 8,000/- to Dr. Bakshi as indoor patient. Complainant did not remain confined to bed at his house till 27.1.07 nor was he again admitted in DMC Ludhiana on 28.1.07. It does not admit that he was under treatment of Dr. Sanjiv Mahajan and was getting follow up treatment from him. According to it, complainant was not confined at his house upto 27.11.07. Civil Surgeon, Bathinda did not issue Disability Certificate on 28.11.07 stating that his right leg has become short by 1 inch. Documents were demanded from the complainant as they were necessary to proceed with the claim. They were not submitted alongwith original claim form. Document were incomplete to conclude the claim amount. Letter dated 8.8.07 was sent by it demanding fitness certificate from treating physician/surgeon after completion of the treatment. It does not admit the remaining averments in the complaint.<br /> 3. In support of his averments contained in the complaint, he has produced in evidence his two affidavits (Ex. C-1& Ex. C-3), affidavit of Sh. Rakesh Kumar (Ex. C-2), photocopy of Insurance Cover Note (Ex. C-4), photocopy of DDR (Ex. C-5), photocopy of bill dated 30.9.06 (Ex. C-6), photocopies discharge slips dated 14.9.06 and 30.9.06 (Ex. C-7 & Ex. C-8) respectively, photocopy of Personal Accident Insurance Medical Report (Ex. C-9),photocopies of letters dated 20.7.07 and 8.8.08 (Ex. C-10 & Ex. C-11) respectively, photocopy of reply dated 26.3.07 (Ex. C-12), photocopies of letters dated 14.3.07 and 25.4.07 (Ex. C-13 & Ex. C-14) respectively, photocopy of claim form (Ex. C-15), photocopy of Certificate (Ex. C-16), photocopy of Handicapped/disability certificate (Ex. C-17), photocopy of Claim Petition (Ex. C-18), photocopy of prescription slip (Ex. C-19), photocopy of Form 'A' alongwith postal receipt (Ex. C-20), photocopies of postal orders (Ex. C-21 to Ex. C-22), photocopies of letters dated 15.9.06 and 20.7.07 (Ex. C-23 & Ex. C-24) respectively, photocopy of certificate under Section 64VB (Ex. C-25), photocopy of certificate dated 1.8.07 (Ex. C-26), photocopy of letter dated 26.7.07 (Ex. C-27), photocopy of Proposal Form (Ex. C-28), photocopy of discharge slip (Ex. C-29), photocopy of bill dated 30.9.06 (Ex. C-30), photocopy of claim form (Ex. C-31), photocopy of discharge slip (Ex. C-32) and photocopy of Misc. Insurance (Ex. C-34). <br /> 4. In rebuttal, on behalf of the opposite party affidavit of Sh. Balwinder Singh, Divisional Manager (Ex. R-1), photocopy of Personal Accident Policy (Ex. R-2), photocopy of Individual Personal Accident Insurance (Ex. R-3), photocopy of letters (Ex. R-4 to Ex. R-7), photocopy of proposal form (Ex. R-8), photocopy of claim Form (Ex. R-9), photocopy of discharge slip (Ex. R-10) and photocopy of letter dated 15.9.06 (Ex. R-11) have been tendered in evidence. <br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the complainant. <br /> 6. Personal Accident Insurance (P.A. Insurance) was purchased by the complainant vide Cover Note No. 1032042 dated 29.8.06 for the period from 29.8.06 to 28.8.07. Copy of the Insurance Cover Note is Ex. C-4. Sum assured is Rs. 1,60,000/-. Opposite party charged Rs. 120/- for Rs. 60,000/- under Table IV, Rs. 24/- towards medical expenses and Rs. 90/- for assured sum of Rs. 1.00 Lac under Table II. In all a sum of Rs. 283/- was charged.<br /> 7. Submission of the learned counsel for the opposite party is that complainant has failed to establish that he had met with an accident on 13.9.06 in the revenue limits of Police Station, Cantt Bathinda. This argument is not acceptable. For proving the accident there is affidavit of the complainant which is Ex. C-3. In the affidavit Ex. C-2 Mr. Rakesh Kumar Goyal, Proprietor of M/s. Shiva Lubricants has also stated that complainant had met with an accident on 13.9.06. Daily Diary Report No. 24 was also got recorded on 17.9.06 in Police Station Cantt. Bathinda by the complainant, copy of which is Ex. C-5, regarding the mode and manner in which he had met with an accident on 13.9.06. In the discharge slip of DMC Ludhiana copy of which is Ex. C-8 history of the complainant regarding receiving the injuries in the accident while he was going on motor cycle has been recorded. Opposite party cannot drive any benefit from the fact that Daily Diary Report was got recorded on 17.9.06 as medical evidence also supports that complainant was getting treatment from the hospital for the injuries received by him in the accident on 13.9.06. Dr. Sanjiv Mahajan also gave certificate copy of which is Ex. C-26 that complainant had met with an accident on 13.9.06.<br /> 8. Admittedly claim was submitted by the complainant. There is specific averment of the complainant that opposite party was approached and claim was demanded but nothing has been paid. In para No. 22 of the complaint his plea is that opposite party is Service Oriented Company and in case of any loss or damage they are supposed to provide service and settle the claim within 2-3 months from the date of loss to their customers but it is still sitting on the claim and has failed to provide services despite the fact that one and a half year has elapsed from the date of loss. Opposite party in the reply of the complaint denies the fact. There is nothing in the reply of the complaint that claim was ever repudiated. During the course of arguments, learned counsel for the opposite party brought to our notice copy Ex. R-5 of letter dated 14.3.07 according to which opposite party has mentioned that it is left with no other option except to file the claim. In other words, claim has been shown to have been filed. This letter is against the pleadings of the opposite party. Claim file has been shown to have been closed through letter dated 14.3.07 on the grounds that despite letters/reminders sent, he has not complied with the required papers/documents and he has withdrawn the claim by giving consent. Main reason for closing the file is that despite repeated telephonic and written reminders, he has not complied with the papers/documents. No amount of evidence and argument can be considered if it is beyond pleadings. On the basis of Ex. R-5, opposite has tried to show that claim file was closed but despite this, they continued demanding some documents. In response to letter dated 14.3.07 complainant sent reply dated 26.3.07 copy of which is Ex. C-12 intimating that prior to it, no documents were demanded from him. Alongwith the reply, he sent copy of Dr. H S Bakshi's referral slip, copy of DMC discharge slip, copy of bill of DMC, copy of DMC's another discharge slip and copies of follow up treatment slips. Opposite party again demanded some documents through letter dated 25.4.07 copy of which is Ex. C-14. In reply, complainant sent letter to the opposite party on dated 20.7.07 copy of which is Ex. C-10. Alongwith the letter, he sent original claim Form, original discharge certificate of Dr. H S Bakshi, original discharge certificate of DMC Ludhiana, photocopy of last medical advice by Dr. Sanjiv Mahajan, original leave certificate; original bill and original X-ray film. Again opposite party sent letter dated 8.8.07 demanding fitness certificate from the treating physician/surgeon. As is evident from the affidavit of the complainant, he had already submitted certificate dated 18.7.07 duly filled and signed by Dr. Sanjiv Mahajan, Medical Attendant. All this shows that opposite party did not repudiate the claim. Rather claim was kept pending even after issuance of the letter dated 14.3.07. Opposite party was required to decide the claim within 3 months from the date the claim was submitted but it did not do so. Hence, there is deficiency in service on its part.<br /> 9. Complainant got treatment from Dr. H S Bakshi Ortho & Maternity Centre at Bathinda on 14.9.06 as is clear from Ex. R-6. He was discharged from that hospital on 14.9.06 and was admitted in DMC on 15.9.06. He was discharged from DMC Ludhiana on 30.9.06. Bed rest was advised to him by Doctor for six weeks w.e.f. 15.9.06 as per Ex. C-8. Thereafter he continued getting follow up treatment. He was again admitted in DMC Ludhiana on 28.1.07 and was discharge on 4.2.07. As per Ex. C-33 Doctor advised him rest for six weeks w.e.f. 28.1.07 onwards. A sum of Rs. 48,140/- was paid by the complainant in DMC Ludhiana as is evident from copy of bill dated 30.9.06 Ex. C-6. Permanent Disability of the complainant has been assessed by Medical Board to the extent of 10% according to certificate copy of which is Ex. C-17. Ex. C-4 is the policy schedule under which opposite party charged Rs. 120/- for capital sum Insured i.e. Rs. 60,000/- under Table IV, Rs. 24/- for medical expenses and Rs. 90/- for Rs. 1.00 Lac capital sum Insured under Table II. Opposite party undertook to pay the Insured for any permanent partial disablement as per its percentage as assessed by the Doctor. Opposite party has further undertaken that if such injury shall be the sole and direct cause of temporary total disablement, then so long as the insured shall be totally disabled from engaging in any employment or occupation of any description whatsoever a sum at the rate of one percent of the capital sum Insured stated in the schedule herein per week, but in any case not exceeding Rs. 5,000/- in all under all policies per week in any case not exceeding 25% of the monthly salary provided that the compensation payable shall not be payable for more than 100 weeks in respect of any one injury calculated from the date of commencement of the disablement and in no case shall exceed the capital sum Insured.<br /> 10. Now question arises as to which relief should be accorded to the complainant. Learned counsel for the opposite party argued that Ex. R-2 is the copy of the Individual Personal Accident Policy concerning the complainant and complainant is bound by its terms and conditions. He further argued that under Exception Clause of the Policy, compensation under more than one of the sub clauses in respect of the same period of disablement cannot be allowed. We do not feel ourselves inclined to agree with the learned counsel for the opposite party. So far as Ex. R-2 is concerned, complainant can not be bound by its terms and conditions. Complainant had purchased Personal Accident Insurance Policy for the period from 29.8.06 to 28.8.07. Policy copy of which is Ex. R-2 was issued by the opposite party on 26.3.08 i.e. much after the Insurance policy purchased by the complainant came to an end. Moreover the submission of the learned counsel for the opposite party that complainant is entitled to claim compensation under one clause in respect of same period of disablement is against the principle of natural justice. When complainant has got the capital sum Insured under Table II & IV and premium has been paid under these two Tables, opposite party cannot deny the benefits under them. In our view complainant is entitled to Rs. 10,000/- i.e.10% of the capital sum Insured i.e. Rs. 1.00 Lac under Table II. On the basis of the evidence on record we conclude that complainant has proved that he was totally disabled from engaging in any employment or occupation for a period of 12 weeks. Accordingly he is entitled to recover Rs. 600/- per week i.e. @1% of the capital sum Insured i.e. Rs. 60,000/- under Table IV. When amount is so calculated for 12 weeks, it comes to Rs. 7200/-. As per Ex. C-6, DMC Ludhiana charged Rs. 48,140/- from the complainant as charges for his being as indoor patient. Ex. R-3 is the copy of the Individual Personal Accident Policy. According to it, policy may be extended to include payment of the medical expenses upto 10% of the sum Insured or 50% of the admissible claim amount or the actual expenses incurred towards medical expenses (whichever is lower) by charging 20% extra on the premium. The medical expenses are in addition to the benefits provided under the policy. As discussed above, admissible claim amount comes to Rs. 17,200/-(Rs. 10,000/- for disability and Rs. 7200/- for total disablement from engaging in any employment or occupation of any description whatsoever). Keeping in view the criteria fixed in Ex. R-3, complainant becomes entitled to Rs. 8600/- as medical expenses as this is lowest amount being 50% of the admissible claim.<br /> 11. In view of what has been discussed above, direction deserves to be given to the opposite party to pay Rs. 25,800/- to the complainant alongwith interest @9% P.A. w.e.f. 28.11.07 i.e. the date of issuance of Disability Certificate till payment. Complainant is craving for compensation of Rs. 50,000/- for mental agony, pains and sufferings. There is no case to allow it in view of the relief which is going to be accorded as above. Out of compensation and interest, one can be allowed.<br /> 12. In the result, complaint is partly allowed against the opposite party with cost of Rs. 1,000/-. Opposite party is directed to do as under :-<br /> i) Pay Rs. 25,800/- to the complainant alongwith interest 9% P.A. w.e.f. 28.11.07 till payment. <br /> Compliance of this order be made within 30 days from the date of receipt of copy of its order.<br /> Copy of this order be sent to the parties concerned free of cost and file be also consigned.<br /> Pronounced :<br /> 30-07-2008 (Lakhbir Singh )<br /> President<br /> <br /> (Dr.PhulinderPreet) <br /> 'iki' Member <br />