H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 01/2009.

Date of Decision 27.05.2009.

Sh. Yad Singh S/o Shri R.R. Thakur, R/o Vill. Odna,

PO Shamti, Tehsil & District Solan, HP.

.……..Appellant.

Versus



United India Insurance Company Limited through its

Branch Manager, The Mall Solan, Tehsil & Distt. Solan, HP.

…….Respondent.

Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether Approved for reporting? Yes.



For the Appellant. Mrs. Veena Sood, Advocate



For the Respondent. Mr. J.S. Bagga, Advocate.



O R D E R:



Justice Arun Kumar Goel (Retd.) President (Oral)



Appellant filed Consumer Complaint No. 08/2007, it was dismissed on 5.12.2008, hence this appeal.

2. Appellant having been insured under individual personal accident policy from 21.5.2005 to 20.5.2006 under a valid policy of insurance in the sum of Rs. 2 lacs is not in dispute. On 2.3.2006 during the currency of this insurance policy, he met with accident while going towards his house after he had slipped from the path and had fallen down. As a result of this, his right thumb got injured (fractured) and he was confined at his house for a period of 3 weeks from 3.3.2006 to 23.3.2006. His claim was not settled in terms of policy conditions. As such alleging deficiency in service, consumer complaint was filed. This was dismissed vide impugned order. Briefly stated stand of the respondent while contesting the complaint was, that it was not maintainable as there was no deficiency in service. It was further pleaded that injury on the right thumb suffered by the appellant was not temporary total disablement. As such according to terms and conditions of the insurance policy he was not entitled to any claim. He was intimated accordingly on 22.8.2006. Evidence was produced by the parties. Vide impugned order, complaint was dismissed, hence this appeal.

3. In the light of the pleadings of the parties in our opinion only question that needs to be determined in this appeal is, that what was the nature of the injury sustained by the appellant and whether it was in consonance with clause 15 of the above referred insurance policy. For ready reference this condition is extracted hereinbelow:-

“x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x f). 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 (1%) of the capital sum insured stated in the schedule herein per week, but in any case not exceeding Rs. 5000/- per week in all under all policies per week in any case not exceeding 25% of the Monthly Salary.

x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x”



4. In Annexure R-3, the certificate issued by Dr. Asheesh Sharma, MS (Ortho), Zonal Hospital, Mandi on 28.3.2006, he has clearly stated that the appellant was confined to house as the direct and sole consequence of injuries sustained by him. This shows that he was under the treatment of said doctor between 3.3.2006 to 23.3.2006 for “# D.P. (R) Thumb.” Doctor has further certified that injuries were solely due to accident of 2.3.2006 at village Odna and in his opinion the injured person was confined to house as the direct and sole consequence of injuries sustained in the accident for a period of 3 weeks, i.e. from 3.3.2006 to 21.3.2006. He was found fit to resume normal duties fully on 24.3.2006 as per this annexure.

5. In the light of this certificate, we are of the view that the case of the appellant was fully covered by clause 15 (supra). In case he was not totally disabled due to injury sustained by him in terms of Annexure R-3, there was no occasion for his having remained confined to his home as is clear from the certificate of the treating doctor. Thus we are constrained to hold that injury was the sole and direct cause of temporary total disablement. In case he was not totally disabled temporarily, doctor would have said so in the certificate. There is no rebuttal to Annexure R-3 placed on record by the respondent. Claim of the appellant is clearly supported from the certificate issued by the attending doctor.

6. Faced with this situation, Mr. Bagga submitted that the appellant was not hospitalized. Further according to him nature of injury was not either serious or of such a magnitude, that as a result of which, the appellant was having temporary total disablement. This according to him would have been the situation if he was confined to the hospital. Therefore, per him impugned order deserves to be upheld while dismissing this appeal.

7. In addition to this Mr. Bagga also referred to column No. 7 (a) of Annexure R-2 and then urged that doctor has said in this document that “bed rest not required”. This also negatives the claim of the appellant according to Mr. Bagga. This plea is wholly misconceived. Reason being that it is dated 28.3.2006, whereas R-3 is for the period prior to this date as noted in the detail in the paras above. Further R-2 relied upon by Mr. Bagga does mention that the bed rest was not even required between 3.3.2006 to 21.3.2006.

8. After having examined the record of this case particularly in the context of insurance policy Annexure R-1, we are of the view that it is not the requirement of insurance policy on which document both sides relied, that the appellant must be hospitalized to claim benefit of clause 15 supra. As such in our opinion he is entitled to compensation and at the same time dismissal of his complaint by the District Forum below was not correct. A perusal of the policy shows that what would constitute temporary total disablement is not expressly spelt out in it, i.e. Annexure R-1. Therefore the District Forum below did not properly appreciate the evidence produced by the parties in the peculiar facts and circumstances of this case.

9. An attempt was made by Mr. Bagga to persuade us to dismiss this appeal. However on the basis of the medical evidence on record, we are convinced that the temporary disablement was permanent during the period as mentioned by the attending doctor in Annexure R-3. At the risk of repetition we reiterate that clause extracted hereinabove from Annexure R-1 fully supports the case of the appellant and also endorses the view taken by us on its examination. Therefore, in our opinion this appeal deserves to be allowed and compensation needs to be allowed. Ordered accordingly.

10. No other point is urged.

In view of the aforesaid discussion as well as keeping in view the clause 15 of the insurance policy as extracted hereinabove, the order passed by District Forum, Solan, in Consumer Complaint No. 08/2007, dated 5.12.2008 is hereby quashed and set aside and consequently appellant is held entitled to Rs. 6,000/- alongwith cost of Rs. 2,000/-, besides 9% per annum interest on the amount of Rs. 6000/- only, from the date of filing of the complaint i.e. 19.1.2007 till the payment/deposit whichever is earlier. Subject to this direction, appeal stands disposed of.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.

Shimla.

27th May, 2009. (Justice Arun Kumar Goel) Retd.

Karan* President.





(Saroj Sharma)

Member.





(Chander Shekher Sharma)

Member.