IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 31stday of March, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 243/2018 (filed on 13-11-2018)
Petitioner : Lijo Joseph,
S/o. Chacko Joseph,
Naduviledam House,
Nedumanni P.O.
Nedukunnam Village,
Changanacherry Taluk,
Kottayam dist – 686592.
Kerala.
(Adv. Sabu Jose)
Vs.
Opposite parties : 1) National Insurance Co. Ltd.
(A Govt. of India Undertaking)
C.S.I. Square P.B. No.633
Kottayam – 686001.
(Adv. Agi Joseph)
2) Smt. BhumikaVarma,
Dy. Director, Department of
Financial Services, 3rd Floor,
JeevanDeep Building,
Sansad Marg, New Delhi – 110001.
3) The Manager,
Kottayam District
Co. Operative Bank Ltd.
Karukachal P.O. Karukachal.
(Adv. Jose Josph K.)
O R D E R
Smt. Bindhu R. Member
The 1stopposite party is the insurance company with whom the
complainant has joined for an insurance policy under the name and stylePradhan mantrasurakshabimaYojana (PBSBY) and PMJJBY through the 3rd
opposite party on 30.05.2015 as per account no 050221200420308 andaccordingly the complainant had been paying the premium without default.
While so, the complainant fell down from the deck of a truck while at work for
his employer and caused several injuries to his upper left hand. Suddenly he
was taken to the hospital nearby and took first aid. But the second day hedeveloped severe pain on his hand and was taken to a private medical college
and treated there as inpatient where he was diagnosed with severe bodilyinfections which would have lead to his death and consequently his left hand
above elbow was amputed. Subsequently the plastic surgeon issued adisability certificate stating “the disability of left upper hand eighty percentand total permanent partial disability is 40%.” The complainant was treated asinpatient for one month and 15 days and had incurred a loss of 4 Lakhstowards the hospital charges. The complainant is the sole bread winner of hisfamily comprising of his aged handicapped father and aged mother. He lost hislivelihood also. The complainant submitted an insurance claim to the 1st opposite party through the 3 rd op on 20.03.2018 but the claim was rejected by the 1st opposite party videletter dated 15.09.2019 as ref. No 570600/MISC/PMSBY claim 2018. In spite ofrepeated demands, the 1st and 2nd opposite parties rejected the claim stating the reasonthat the percentage of disability 40 does not come under the purview of thepolicy issued to the complainant. The notification dated 1stJune,2001 issuedby Ministry of Social justice and Empowerment, New Delhi clearly states in the 3rdclause that minimum degree of disability should be 40% in order to beeligible for any concession/benefits. The complainant issued legal notice tothe 1st opposite party and a detailed complaint to the 2nd opposite party but nobody turned up. Hencethis complaint is filed.
Upon notice from this commission, opposite party 1and opposite party 3 appeared and filed version.
Though the opposite party 2 was served with the notice, opposite party 2did not turn up.In the version filed by its Assistant Manager, the 1st opposite party contended that PMSBYinsurance scheme covers accidental claim subject to the terms and conditionsof the scheme. The complainant has not produced any evidence forsubstantiating his claim that he had sustained injury consequent to a fall fromthe deck of a truck. There is no criminal case registered by the police inconnection with the said incident. The complainant has not given even apolice complaint .In the absence of a crime or an FIR or a GD entry, it cannotbe believed that the injuries caused to the petitioner was a result of anaccident. There is no wound certificate or indication in the treatment recordsthat the injury was caused to the petitioner as a result of an accident. As perthe scheme, the claim for is required to be supported by OriginalFIR/panchanama. Hence the petitioner is not entitled to get any insuranceclaim under the PMSBY scheme. The PMSBY scheme covers only totalirrecoverable loss of use of a hand arising out of an accident caused byexternal, violent and visible means and the coverage is operative only when anaccident is the sole and direct cause of loss of use of hand. The partialamputation of left upper limb of the complainant was due to the impropertreatment and negligence in the treatment and not due to the result of anyaccident. Hence the op is not liable to pay any compensation or insuranceclaim to the petitioner. The disability caused to the petitioner is not comingwithin the purview of PBSBY scheme. Hence the op is not liable to pay anyamount. As per the terms and conditions of the policy, insurance company isliable to pay only if the insured person shall sustain any bodily injury resultingsolely and directly from an accident caused by external violent and visiblemeans then company shall pay to the insured person the sum mentioned inthe policy. Rs. 1,00,000/- is the payable sum insured in case of total andirrevocable loss of sight of one eye or loss of use of hand or foot. The policydoes not cover death, injury or disablement resulting from any of theexclusions listed under clause D of the policy. Any injury caused due tomedical or surgery expenses, accident under influence of alcohol or drugs,curative treatments or intervention that the insured person carries out orhave carried out on his body and unproven or experimental treatment of any
description, pre existing disablement etc. There is no chance to form agangrene within 48 hours. Hence the cause of amputation and consequentdisability will not come within the purview of policy. Hence the insurancecompany is not liable to pay the claim of the complainant. The nature oftreatment and period of treatment are not relevant for the consideration ofthe insurance claim. The insurance company can consider the claim only asper the terms and conditions of the scheme formulated by Government ofIndia. The notification dated 1st June 2001 of Ministry of social justice andEmpowerment, New Delhi is not related to Pradhan MantriSurakshaBimaYojana Insurance Scheme. The said notification is with regard to another Act.The terms and conditions of this scheme is solely of Government of India. Asper the scheme total and irrevocable loss of hand is covered but here no totalloss of use of hand. The opposite party has not received any notice from thecomplainant. Thus the complainant is not entitled for the award of the claimand hence the complaint is liable to be dismissed.
The complainant adduced evidence in the box and marked Exhibits A1 to A11and X1.The opposite parties 1 and 3 marked Exhibits B1 to B4 through proofaffidavit.
On perusal of the complaint, version and evidence on record, we frame thefollowing points:
- Whether any deficiency of service is established from the pleadings
andevidence on record.
2. Whether the complainant is liable to be awarded with compensation?
Point no 1and 2
The complainant’s case is that he had to undergo a surgery which lead to theamputation of his left arm consequent to an accident. The complainant has felldown from a truck while on his job of loading the goods. The complainant hadenrolled with the opposite parties insurance scheme PMSBY. Upon the incidenthe claimed for the amount and the same was rejected by the 1st opposite party.The complainant alleges that the rejection of the same is deficiency in service.
On a detailed examination of the documents on record, we find that thecomplainant the complainant applied for the policy through the 3 rd opposite party and the 3rdopposite party in his version has admitted that the complainant sustained injury in anaccident and he had to ampute one of his hand. Exhibit A6, the repudiationletter shows the reason that the disability assessment board certificate statespermanent disability is 40% and this does not come under the purview of thepolicy issued. Hence the claim is treated as no claim. We find that in ExhibitB1,the policy wordings, the 2ndclause states about the coverage as “Total andirrecoverable loss of sight of one eye or loss of use of one hand or foot–Rs.1Lakh.
The opposite parties’ contention is that the alleged accident is not the sole anddirect cause of loss of hand of the complainant. Further the complainant has
not produced any wound certificate and there is no evidence to show that the
injury has caused because of the accident. Moreover, there is no FIR or at least
a GD entry. So the opposite parties cannot assess the injury caused to the
complainant as a result of an accident.
Here evaluating each and every contentions of the opposite parties, firstly, theythemselves define accident as which is caused by external, violent and visiblemeans. So the accident of falling from the deck of a lorry during the unloadingwork, can be considered as an accident as it is very strong and in a visiblemeans. Even at the moment of fall, the complainant was healthy with a healthyleft arm. Only because of the accidental fall, he sustained injury.
The complainant has not produced any document from the hospital he treatedfirstieChethippuzhaSt.Thomas hospital. The second hospital PushpagiriMedical society issued a discharge summary Exhibit A 7 in which it is recorded
as “ 37 year old male with no known comborbidities presented to the emergency department with complaints of post slip and fall and dislocation of elbow 48
hours back”. So the complainant has sought treatment only in consequent to
the fall. Thereafter he had to undergo a surgery in which his left arm gotamputed.Exhibit X1 which is the accident cum wound register issued from the
treating hospital has recorded slip and fall from lorry. The details of injuries are
recorded as “Elbow dislocation with Brachial Artery injury and compartment syndrome (L) forearm”.
In exhibit A1, the disability certificate it is shown that the permanent disabilityof the complainant is 40 % and belongs to moderate category. Nowhere inthe B1 policy wordings or in the B2 MOU it is stated that for awarding theinsurance claim, the injured should be of 40% permanent disability. Even ifthere is such a condition, in Ext.A1 disability certificate, the disability is shown as40%. Moreover, the complainant has lost the use of one hand.Further in B2, the Memorandum of understanding entered into between the 1stand 3rdopposite parties, in clause (C) claim settlement “Onreceipt of death intimation, the servicing bank branch shall send the claim form, Original FIR/Post Mortem Report/Death Certificate to the designated Claim Settlement Office of NICL. For Disability Claim, certificate from a Civil Surgeon is to be attached. Discharge form and Confirmation of Debit in the Policyholder’s account by the bank to be submitted for Death as well as Disability Claim. On admission of the claim, the claim amount will be paid to the bank for Disbursement”.
In case of requirements of documents or if claim is not accepted, the same will be intimated to the Bank Branch.
So it is very clear that the PMSBY project has not intended to file an FIR in casesof disability claim, and that is only intended to be produced in death cases.Here the complainant has completed all the formalities from his part includingthe certificate from a surgeon.
Though the opposite parties contend that as per the terms and conditions of the policy the disability of 40% does not make the complainant eligible for the claim and FIR is necessary for awarding the claim, these conditions are not communicated to the complainant. There is no evidence to show that the policy conditions were communicated to the complainant by the opposite parties. Moreover, Exts. A10 and B2, the memorandum of understanding and the Ext.B1 policy wordings are contradictory. We see that the Ext.B1 policy wordings are formulated unilaterally by the opposite parties, defeating the intention of the B2 memorandum of understanding Pradhan mantra SurakshaBihaYojana.
At this juncture, we are of the considered opinion that the PMSBYlike
other welfare projects was initiated for a good cause to help the needypersons and the benefit of which should not be made unavailable for sometechnical reasons. From the facts andcircumstances it is well evident that the complainant had suffered injury onlydue to the accident. Hence the rejection of the claim of the complainant is adeficiency on the part of the opposite parties. The complainant being the solebread winner in his family comprising age old parents, would have suffered alot due to the loss of one hand. We observe that the life with two healthy handsand legs is very difficult in these days. So the grievance of the complainantshould be compensated.
Hence the complaint is allowed and the opposite party 1 is directed to pay Rs. 1Lakh to the complainant with an interest at the rate of 9% per annum from
15.09.2018 from the date of repudiation till the date of realization.
Order shall be complied with within a period of 30 days from the date of receipt of Order.
Pronounced in the Open Commission on this the 31stday of March, 2021
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 :Lijo Joseph.
Exhibits from the side of complainant
A1 :Copy of standing disability assessment board certificate issued by Govt.
General Hospital Kottayam.
A2 : Copy of lawyers notice dtd.08-10-18
A3 : Copy of complaint dtd.05-10-18 before the Hon’ble Prime Minister of
India
A4 : Copy of passbook of saving bank account
A5 : Copy of claim form in Pradhan ManthriSurakshaBimaYojan(PMSBY)
A6 : Copy of letter dtd.15-09-18 issued by opposite party
A7 : Copy of discharge summary dtd.22-12-17 issued by Pushapagiri Medical
Society
A8 : Copy of notification dtd.01-06-2001 from Ministry of Social Justice and
Employment
A9 :Series of medical bills
A10 : Copy of memorandum of understanding Pradhan mantra SurakshaBiha
YojanaA11
A11 : Copy of certificate of disability
Exhibits from the side of opposite party
B1 : Copy of Pradhan MantriSurakshBimaYojana policypolicy wordings
B2 :Copy of memorandum of understanding Pradhan mantra SurakshaBiha
Yojana
B3 : Copy of discharge summary dtd.22-12-17 issued by Pushapagiri Medical
Society
B4 : Copy of investigation report dtd.30-01-19 by Bhaskaran Pillai P.N.
Court Ext.
X1 :Copy of accident register cum wound certificate.
By Order
Senior Superintendent
