Jammu and Kashmir

Jammu

CC/47/2017

Ramesh Kumar Sharma - Complainant(s)

Versus

Bajaj Allianz - Opp.Party(s)

MM Gupta

06 Sep 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

      (Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No               80/DFJ         

 Date of  Institution      19-05-2016

 Date of Decision         07-08-2018

 

Romesh Kumar Sharma,

S/O Har Dutt Sharma,

R/O H.No.201 Old Janipur,

Jammu.

                                                                                                                                                                Complainant

                  V/S

Bajaj Allianz General Insurance Co.

G.E.Plaza Air Port Road,

Yerwada Pune-411006 through its

Brandch /Office Manager/Incharge,

2^nd Floor Paloura,Opp.BSF Camp,

Akhnoor Road,Jammu-181124.

                                                                                                                                                        Opposite party

CORAM

                  Khalil Choudhary              (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chauhan                                          Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

     

  Mr.M.M.Gupta,Advocate for complainant, present.

Mr.Vishnu Gupta,Advocate for OP,present.

 

                                                                          ORDER

                    Facts relevant for the disposal of complaint on hand are that complainant being registered owner of vehicle, bearing registration No.JK02T-7969,got same comprehensively insured with OP,w.e.f.06-07-2014 to 05-07-2015(Annexure-A).Allegation of complainant is that on,09-09-2014,insured vehicle met with accident near Bahu Depot (copy of FIR Annexure-B) According to complainant, in the accident he received serious/grievous injuries to his right hand, right hand fingers, right fore arm was fractured, right thigh and shoulder and the complainant after receiving first aid from GMC Jammu was taken to Amandeep Hospital Amritsar on,09-09-2014 and was admitted there on,10-09-2014 for the treatment of injuries and was discharged o,24-09-2014 and as a result of said injuries, right hand/fingers and fore arms had become permanently non-functional and useless and he is not able to drive motor vehicle as his right hand is not working. Further case set up by complainant is that he remained hospitalized for 15 days and during this period and thereafter for a period of 6 months he was in great pain, shock and agony and after discharge from the hospital he has been visiting the said hospital for follow up treatment and physiotherapy which is evident from the bills of the physiotherapy. Complainant further submitted that he had suffered loss of Rs.2.00 lacs on account of loss of income during the period of treatment, follow up  and physiotherapy and for his whole life his right hand has become functionless due to injuries sustained in the said accident. Allegation of complainant is that he approached OP for settlement of his claim, but OP did not settle the claim till date. Constrained by the act of OP,complainant served legal notice to OP ,but did not yield any fruitful result and this act of OP constitutes grave deficiency in service, in not settling the claim as per contract of insurance. Hence the present complaint, in the final analysis, complainant prays for indemnification to the tune of Rs.4,26,784/- including compensation and litigation charges.

                   On the other hand,OP filed written version and while denying the allegations of complainant would submit that the complaint deserved outright dismissal as no claim was ever intimated to OP  though under the terms and conditions of the insurance policy, the same had to be intimated to OP in writing immediately after the so called incident. The Op was informed for the first time, complainant having suffered some injury by way of notice sent by complainant. A claim for Personal Accident as per the policy conditions is required to be intimated and lodged immediately after the so called incident, as per policy condition No.1 notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damaged and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. The OP further submitted that since the claim of complainant does not fall within the purview, scope and ambit of Personal Accident Coverage granted to owner-driver of insured vehicle. The injury suffered by the complainant does not all within the purview of Personal Accident Coverage, as he has neither suffered loss of any limb nor sight of any eye nor permanent total disablement as provided in the policy, hence the complaint is not maintainable and has been filed under misconception. Personal Accident Cover for owner-driver under motor policy covers (i) 100% of capital sum insured for death, loss of two limbs or sight of both eyes or one limb sight of one eye(ii)50% of capital sum insured for loss of one limb or sight of one eye (iii)100% for total disablement   from injuries other than named above. The case of complainant falls in none of the conditions of the Personal Accident Policy. The Op further submitted that Mini Bus No.JK02T/7969 was insured with the OP for the period 06-07-2014 to 05-07-2015 in the name of complainant as its registered owner. Personal Accident Cover was granted to owner-driver strictly in accordance with the policy conditions and G.R.who dies in the accident involving the insured vehicle or suffers loss of two limbs or loss of sight of both eyes or loss of one limb with loss of sight of one eye or 100% total disablement and no other injuries or disablement since the coverage is defined in the policy itself and G.R.governing the insurance coverage. The complainant has intentionally and malafidely annexed only schedule of the policy without annexing the entire terms and conditions of the policy specially section IV i.e. Personal Accident Cover for owner/driver. It covers neither any other injury nor disablement nor expenses incurred on treatment, transportation or any other expenses incurred on treatment of the insured. Rest of the contents are denied by OP.

                         Complainant adduced evidence by way of duly sworn his own evidence affidavit and affidavit of Ravi Dutt.Complainant has placed on record copy of policy schedule, copy of FIR, copies of bills and copy of legal notice.

              On the other hand,OP adduced evidence by way of duly sworn evidence affidavits of Munish Kotwal,Deputy Manager, Legal Bajaj Allianz General Insurance Co.Jammu.OP has placed on record copy of Policy schedule and terms and conditions of insurance policy.

                                    We have perused case file and heard L/Cs appearing for the parties at length.

                         Admitted case of complainant is that he got his vehicle bearing registration No.JK02T-7969, insured with OP,which also includes Personal Accident Cover for owner-driver to the tune of Rs.2.00 lacs.During currency of Insurance Policy, insured vehicle said to have met with accident and complainant also suffered injuries,resultantly,complainant was hospitalized and incurred sum of Rs.1,76,784, on the treatment. Grievance of complainant is that despite claim lodged with OP for reimbursement of expenses incurred on his treatment, in terms of Insurance Policy which covers expenses under Personal Accident Cover, but OP failed to honour the contract of insurance.

                    On the other hand,defence raised by OP is two fold, firstly, according to OP complainant did not lodge claim with them, secondly, as per terms and conditions of Insurance Policy, expenses incurred on the treatment are not covered under Personal Accident Cover, in terms of Insurance Policy. In order to support its contention,OP filed terms and conditions of Insurance Policy, which defines Personal Accident Cover for owner-driver in Section IV to the following effect:-

  SECTION IV-PERSONAL ACCIDENT COVER FOR OWNER-DRIVER

Subject otherwise to the terms exceptions conditions and limitations of this policy, the Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or traveling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:

Nature of injury                                                                                Scale of compensation

(i) Death                                                                                                           100%

(ii) Loss of two limbs or sight of two eye or one limb

 and sight of one eye     100%

(iii) Loss one limb or sight of one eye                                                  50%

(iv) Permanent total disablement from injuries

       other than named above                                                             100%

               

                       Admittedly, as per Disability Certificate placed on record by the complainant, the decree of disability is evaluated by the doctors is to the extent of 40% and at the same time, complainant do not fall in any of the categories as provided in the table contained under GR 36, therefore, complainant is not entitled to PA cover under the terms and conditions of Insurance Policy.

                          L/C for OP placed reliance on the judgment of Hon’ble High Court of Jammu and Kashmir at Jammu passed  in OWP No.534/2016 in case titled Gulam Mohd.Khandey V/S Oriental Insurance Co.,wherein their lordships has been pleased to hold in paras 12 & 13 as under:

         12.Viewed thus, claim lodged by the petitioner with the Insurance Company is not found covered by the expressed terms and conditions of the Insurance Policy.Therefore,the District Forum constituted under the provisions of J&K Consumer Protection Act,1987 fell in error in allowing the claim and therefore, the judgment impugned passed by the State Consumer Commission is correct in law and does not call for any interference by this Court.

      13.In view of the foregoing analysis, this petition is found to be without any merit, hence dismissed.

                         Therefore, to be eligible for compensation under Personal Accident Cover, in respect of owner-driver, only those injuries are covered which resulted in death, loss of limb or permanent total disablement. In so far as expenses incurred on the treatment of owner-driver is concerned, same do not find mention under Personal Accident Cover,therefore,mere incurring of expenses on treatment of owner-driver is not sufficient for claiming benefit of indemnity under Personal Accident Cover, if none of the injuries, resulted in death, loss of limb or permanent disablement suffered by the insured.

                   In afore quoted back drop, complaint fails, accordingly, same is dismissed. Keeping in view the above said discussion, the complainant is at liberty to approach appropriate Forum, if he desires so. However, in the facts and circumstances of the matter, parties are left to bear their own costs. File after its due compilation be consigned to records.

Order per President                                              Khalil Choudhary

Announced                                                        (Distt.& Sessions Judge)

07-08-2018                                                               President

                                                                            District Consumer Forum

Agreed by                                                                 Jammu.

                                                                                

Ms.Vijay Angral          

Member

                                                                                              

       Mr.Ghulam Sarwar Chauhan

       Member