West Bengal

Dakshin Dinajpur

CC/10/6

Dulal Shekh - Complainant(s)

Versus

The Area Manager - Opp.Party(s)

Nihar Roy

29 Jun 2011

ORDER

District Consumer Disputes Redressal Forum

Dakshin Dinajpur, W. Bengal

(Old Sub-Jail Municipal Market Complex, 2^nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)

Telefax: (03522)-270013

Present `

Sri B. Niyogi - President

Sri S. K. Ghosh - Member

Miss. Swapna Saha - Member

Consumer Complaint No. 6/2010

Sri Dulal Shekh

S/o Lt. Idrish Ali.

Vill. Mandapara, P.O. Basuria, P.S. Tapan,

Dist. Dakshin Dinajpur.……………………………Complainant

V-E-R-S-U-S

1. The Area Manager,

Bajaj Allianz General Ins. Co. Ltd.

NH-34, Rathbari, Malda, Dist. Malda.

2. The Branch Manager,

Golden Trust Financial Services,

Biswaspara, P.O. & P.S. Balurghat, Dist. Dakshin Dinajpur.

3. The General Manager,

Bajaj allianz General Ins. Co. Ltd.

Poddar Court, 18, Rabindra Sarani,

Kolkata -700 001 …………………Opposite Parties

For complainant ……………… - Sri Nihar Ry, Ld. Adv.

- Sri Samit Bhowmick, Ld. Adv.

For OPs 1 & 3 …………………… - Sri Arijit Neogi, Ld. Adv.

For OP 2 …………………… - Sri B. K. Roy, Ld. Adv.

Date of Filing : 04.03.2010

Date of Disposal : 29.06.2011

Judgment & Order dt. 29.06.2011

Instant CC case bases upon a complaint u/s 12 C.P. Act, brought by the complainant Sri Dulal Shekh on 04.03.2011 against the Branch Manager, GTFS, Balurghat Branch - the OP 2 and against two officials of Bajaj Allianz General Ins. Co. Ltd. alleging deficiency in service.

Complainant’s case as it appears from the said complaint, in brief, is that on being attracted by the terms and conditions of Personal Accident Insurance Policy he took from the OP 3–the General Manager, Bajaj Allianz GIC, Kolkata through the OP 2 a policy bearing No.OG-05-2401-9960-00000041 having period of coverage from 30.5.05 to 29.5.01. On 4.2.07 while he was cutting firewood with a dah, accidentally such dah struck three fingers of his left hand resulting in severe bleeding . He had been taken to Kaldighi Hospital wherefrom he was referred to Dakshin Dinajpur Dist. Hospital at Balurghat. In course of treatment in Balurghat hospital three affected fingers were cut away from middle joints. He turned a physically disabled person extent of disability having been 60%, he was granted a certificate to that effect from the said hospital.

The complainant informed the matter to Tapan PS under GDE No. 727 dt. 17.2.07. He also informed the matter to OP 3 – the General Manager, Bajaj Allianz GIC through GTFS –the OP 2. The agent of OP 2 took his LTI on claim paper and forwarded the same to the Insurance co. The OP 3 sent one investigator named Sri Tamosh Roy along with a letter dt. 2.4.07. On being demanded by the investigator the complainant made over to him some documents.

For obtaining the benefit under the policy the complainant thereafter paid visit to the office of the OP 2 repeatedly. Having got no significant response the complainant sent a Lawyer’s notice dt. 31.12.09 upon the OP 1. A notice was also sent to the OP 3 on 2.4.10. All such attempts taken from the end of the complainant for obtaining the benefit, proved abortive.

In the backdrop of such circumstances, the complainant brought the complaint seeking a direction for making payment of an amount of Rs. 1 lakh by way of sum assured under the policy and compensation.

The proceeding has been contested on behalf of OPs 1 & 3 on whose behalf a written version was presented on 26.8.10. The OP 2 also contested the proceeding by filing a written version on 27.5.10.

The OP 2 –GTFS in its written version dt. 27.5.10 stated that in terms of memorandum of understanding in between it and the Bajaj Allianz GIC it simply extended the insurance coverage of the policy to the complainant and that following submission of the claim application by the complainant it duly forwarded such claim application to the insurance company under its letter dt. 18.4.07 for early settlement. It is the Bajaj Allianz GIC who alone has the exclusive right to settle the claim. There was, in fact, no deficiency in service on the part of such OP 2.

OPs 1 & 3 – the two officials of Bajaj Allianz GIC in their written version assailed maintainability of the complaint contending that such complaint is time barred and that this Forum of the Dist. of Dakshin Dinajpur does not have territorial jurisdiction over the complaint. It has also been their case that the injuries sustained by the complainant cannot be regarded to be accidental as it happened owing absence of mind. The disablement certificate relied upon by the complainant cannot be treated to have been issued by competent authority. That apart, loss of the three fingers of a hand as narrated by the complainant in his complaint, cannot be treated to be a risk covered by the policy. Further , the complainant claimed to have been a cultivator and so he could not be regarded to have been a beneficiary under the group policy issued to the OP 2. The claim for benefit was thus repudiated by the Ins. Co. and so there was no deficiency in service on the part of OPs 1 & 3.

Upon the pleadings of the sides following points come up for determination :-

POINTS

1. Is the proceeding maintainable?

2. Has there been deficiency in service on the part of OPs?

3. Is the complainant entitled to the reliefs sought for by him?

Decision with reasons

Averments made in the complaint have been supported by affidavit sworn by the complainant himself. In support of his complaint complainant also examined himself as PW-1 and the Superintendent of Dist. Hospital of Dakshin Dinajpur as PW-2 who in course of his examination proved before this Forum two disability certificates standing in the name of the complainant as Exts. 6 and 7 and the concerned entries in the register of disability certificates of the district hospital as Exts. 5 & 8. Several other documents were also brought on record from the side of the complainant as exhibited documents formal proof having been waived. Such documents include policy extension certificate as Ext.1, copy of Tapan PS GDE as Ext.3, discharge certificates issued from hospital as Ext.4 and 4(a).

The averments made in the written version of the OP 2 or of OPs 1 & 3 appear to have been verified. However, from the side of the OP 1 and 3 a number of documents were filed in the instant case on 15.3.11 and on 12.4.11. No other evidence was adduced from the side of the OPs though opportunity was given.

Let us now enter into the determination on the thee points formulated above.

Point No.1:

In course of hearing maintainability of the proceeding was assailed on two fold grounds.

1. That this Forum of the district Dakshin Dinajpur does not have territorial jurisdiction over the complaint.

2. Such complaint is time barred.

Concerned certificate of extension of coverage of Personal Accident Insurance –Ext. 1 purports to have been issued by Bajaj Allianz GIC. It was urged by the Ld. Counsel for OPs 1 & 3 that the said insurance company does not have any branch office in the district of Dakshin Dinajpur and so the complaint could not have been entertained by this District Forum. Reference was made by him to a decision of the Hon’ble Supreme Court reported in (2010) 3 WBLR (SC) 58 and to a decision of the Hon’ble National Commission in support of such contention.

.

Here it is not in dispute that the insurance company Bajaj Allianz GIC does not have its office or branch office within the territorial jurisdiction of this Forum. But we notice that in the complaint it has been claimed by the complainant that he sustained the accidental injuries while he was cutting firewood in his house. Such house situates within the territorial jurisdiction of this Forum. So the cause of action can be regarded to have arisen in part within the territorial jurisdiction of this Forum.

Further, in the complaint .failure of the OPs in settling the claim has been alleged to be a deficiency in service. In the policy extension certificate Ext.1 and in the claim form (filed by the OPs 1 & 3 on 15.3.11) address of the complainant has been shown to be an address situated within the district of Dakshin Dinajpur. It thus can be regarded that intimation as to the settlement of the claim, against or in favour, was to be obtained by the complainant at the said address of the district of Dakshin Dinajpur. From this point of view too, cause of action for the complaint could be regarded to have arisen within the district of Dakshin Dinajpur.

As cause of action can be regarded to have arisen within the district of Dakshin Dinajpur in view of provisions of Sec 11 (2) (a) CP Act, it can be said that this Forum has territorial jurisdiction over the complaint brought by the complainant even though the Ins. Co. does not have any office within the Dist. of Dakshin Dinajpur

Making of reference to the two decisions reported in (2010) 3 WBLR (SC) 58 or and in 2011 CTJ 373 (CP) (NCDRC) is, in the circumstances, hardly of any assistance to the OPs 1 & 3 in this case.

Now we take up question of limitation o behalf of OPs 1 & 3 copy of a letter of repudiation was filed on 12.4.11. Such letter purports that a letter dt. 16.5.07 was issued by the Ins. Co. to the complainant intimating as to the repudiation of the complainant’s claim for the benefit. Drawing our attention to such copy of the letter it was urged by the Ld. Counsel for the OPs 1 & 3 that the complaint is barred u/s 24A, CP Act not having been brought within two years from the repudiation. Ld. Counsel appearing for the complainant, on the other hand, urged that no document has been filed by the OPs 1 & 3 to show that the said letter was, in fact, served upon the complainant. It was further urged by him that in the complaint it has been claimed that the claim had not been settled and that at the time of bringing of the complaint, complainant’s prayer for condonation of the delay was granted by this Forum..

It appears from the case record that while presenting the complaint on 4.3.10 the complainant by a separate petition prayed for condonation of the delay virtually alleging that earlier he had been under an expectation of settlement in view of assurance given from the end of OPs and that the delay was condoned by this Forum under Order No. 2 dt. 5.3.10. It is true that this Forum condoned the delay in presentation of the complaint in absence of the OPs but after the appearance of the OPs in the proceeding, the complainant got him examined as PW-1. Such complainant in his affidavit filed by way of examination-in-chief on 2.12.10 appears to have averred that after investigator of the OP- Ins. Co. had come to him for investigation, he paid visit to the office of the OP 2 wherefrom he was assured of obtaining the benefit. In course of cross examination of the complainant by the OPs 1 & 3 nothing substantial appears to have been taken out so as to disbelieve the complainant’s assertion that prior to the presentation of the complaint he had been under an expectation of settlement of the claim. Thus having kept in view the circumstances, in particular, allowing of the complainant’s prayer for condonation of the delay in presentation of the complaint, we are unable to accept that the proceeding is untenable having been barred by time.

No other point was urged assailing maintainability. From a consideration of the materials on record and the circumstances, we thus decide the Point No. 1 holding that the proceeding is maintainable.

Point No.2:

In the complaint the complainant alleged deficiency in service contending that despite investigation through investigator named Tamash Roy and submission of necessary documents on being demanded by such investigator, the claim was not settled even after expiry of a number of years. Here there appears to be nothing on record to disbelieve the assertion of OP 2 made out in Para-11 of their written version that they forwarded the complainant’s claim form to the Ins. Co. after initial verification under their letter dt. 18.4.07. Copy of the complainant’s Lawyer’s notice dt. 31.12.09 addressed to the Area Manager, Malda and the concerned postal A/D card (both filed on behalf of the complainant on 2.12.10) go to indicate that such Lawyer’s notice was received at the end of the Area Manager, Malda on 1.1.10. Under such notice the demand was made for making payment of benefit within 15 days alleging that despite elapsing of a period of over a year since submission of all necessary documents and causing of investigation over the matter by investigator and repeated visits to the Malda office paid by the complainant.

Though the Ld. Counsel for the OP 1 & 3 in course of hearing urged that the complainant was intimated as to the repudiation under their letter dt. 16.5.07 addressed to the complainant (copy filed by the OPs 1 & 3 on 12.4.11), no other document was filed to show that the said letter was actually served upon the complainant or was, in fact, put in transmission to the complainant. OPs 1 & 3 also do not appear to have responded to the complainant’s Lawyer’s notice dt. 30.12.09 stating that they had earlier repudiated the claim or had intimated the repudiation

Failure on the part of OP Ins. Co. in intimating the complainant as to their alleged repudiation nearly two years after the submission of the claim form itself, amounts to deficiency in service on the part of the Ins. Co.

That apart, it has been the claim of the Ins. Co. that they got the claim repudiated. In course of hearing the Ld. Counsel for the OPs 1 & 3 attempted to justify the repudiation on grounds as under :-

1. That the injury sustained by the complainant could not be regarded to be an accidental one in view of report of enquiry conducted by local PS

(2) That the complainant who claimed himself to have been a cultivator could not be regarded to have been a member of G.T.F.S and so he was not entitled to any benefit under the group Ins. policy issued in favor of GTFS.

3. That the two disablement certificates furnished by the complainant cannot be relied upon in this case as :-

a) These certificates cannot be regarded to have been issued by competent authority nor to be in consonance with the relevant disability assessment manual.

b) Non-examination of the Orthopedic surgeon who figures as a signatory as in the said two certificates, before this Forum as a witness.

3. That the disablement claimed in the two certificates could not be regarded to have been ensued as a sequel to the sustaining of injuries claimed by the complainant.

4. That as per the terms of the Insurance policy certificate Ext.1 disablement claimed to have been sustained by the complainant cannot be regarded to be a risk within the coverage of the policy.

Let us see how far the said argument advanced on behalf of OPs 1 & 3 can be accepted.

Ext. 3 the copy of Tapan PS GDE No. 380 dt. 8.3.07 purports that in such GDE enquiry report over the information as to the sustaining the injury was recorded. It has been stated therein that from the inmates of the house of the complainant and from local people it came to light that during cutting of fire wood by the complainant with a sharp cutting dao, such dao struck on the fingers of the complainant in view of giddiness and absent-mindedness of the complainant. It was urged by the Ld. Counsel for OPs 1 & 3 that as there was absent mindedness on the part of the complainant, the sustaining of injury can not be regarded to be accidental.

It has been observed by Hon’ble Gauhati High Court in the case of New India Assurance Co. Ltd. vs. Ajoy Medhi and Anr. reported in 1996 ACJ 727 that it is settled law that the term ‘accident’ means some unexpected and unforeseen event or unlooked for mischief.

The complainant in his affidavit submitted by way of exam.in chief appears to have sworn that while chopping the wood, accidentally the dao struck on his fingers. Here on the materials on the record there is neither any admission on the part of the complainant nor any evidence adduced from the Ops that at the relevant time the complainant was so reckless as to view that the sustaining of the injury by the dao could not be regarded to be an unexpected or an unlooked for event. Such being the situation the case of the complainant that he sustained the injury accidentally while cutting fire-wood, has to be accepted.

The complainant in his POC claimed to have been a cultivator. Drawing our attention to such claim it was urged by the Ld, counsel for Ops 1&3 that as the complainant was a cultivator, he could not be regarded to have been a member of Golden Multi Services Club and so the extension of coverage of the Group P.A Ins.Policy issued to the OP-2, could not be extended to the complainant. We feel it mentioning here that nothing could be shown to substantiate the contention that a cultivator was ineligible to be a member of the Golden Multi Services Club of GTFS. That apart, Ext.1- the certificate of extension of coverage of Ins. Policy purports to have been issued by not only the GMS Club but by the Insurance Co. too . Such being position we are unable to accept the argument that the complainant could not obtain any benefit under the Group PA Ins.Policy issued to the GMS Club of GTFS in view of his having been a cultivator.

In support of his case of his sustaining disability, the complainant examined the Superintendent of Dakshin Dinajpur District Hospital as PW 2 who proved before this Forum two Disability Certificates issued by the said Hospital on 10.08.07 and on 30.10.09, both standing in the name of the complainant which have been brought on record as Exts. 6 & 7 respectively. Some of the portions of the certificate Ext. 6 i.e. the certificate dt. 10.08.07 appear to have been turnout. Still such certificate Ext. 6 purports that on medical examination, the complainant was found to have been physically disabled person with post traumatic amputations at joints of 2^nd, 3^rd and 4^th fingers of left hand. The percentage of disability is not apparent from such certificate in view of a portion’s remaining turnout. But the Superintendent of the Hospital in course of his examination as P.W. 2 appears to have testified that the extent of disability which was recorded in such certificate was 40% and that the extent of disability was to be reviewed after two years.

In the disability certificate Ext.-7 it has been stated that on examination on 30.10.09 the complainant was certified to be a physically disabled person with deformity and stiffness of left elbow, wrist and shoulder joints and that the percentage of disability was calculated at 60% and further that as there was chance of variation in the case, assessment of extent of disability would have to be reviewed after 10 years.

In course of argument Ld, counsel for Ops-1&3 having drawn our attention to some omission or apparent irregularities in the two disability certificates Ext. 6 &7 urged that the said certificates cannot be regarded to have been issued in consonance with relevant assessment Manuel.

Ext. 6 &7 purport and PW-2 in course of his cross-examination admitted the suggestion given from the end of OPs-1 &3 that neither of the phrases ‘congenital/caused by injury/ diseases’ printed at item No-2 of the two disability certificates appear to have been tick-marked, But, we think, such omission in identifying the ‘reported’ causes does not pose to be a cause for thwarting the two certificates altogether.

At item no-6 of the disability certificate Ext.7 it has been stated that the complainant can not travel without the assistance of an escort. The Superintendent of District Hospital during his Examination as PW-2 stated (at page 9) that usually it can not be regarded that a person would not be in a position to walk on ground of disability of the nature and extent observed in the complainant. We feel it mentioning here that the PW-2 used the expression ‘usually’ but did not say that in all cases a person having disability of the nature and extant of the type sustained by the complainant, would not require assistance of an escort.

It is true that the orthopedic surgeon Dr. A. Bala figures as a signatory in both the disability certificates Ext. 6 & 7. The complainant in course of cross-examination stated that he might examine the said Dr. A. Bala as a witness on his behalf. But the said Dr. A. Bala has not ultimately been examined as a witness from the side of the complainant. The complainant however examined the Superintendent of Hospital wherefrom the disability certificates were issued and brought on record the disability certificates as exhibited documents. Having kept in view the circumstances we do not think it proper to take an adverse inference for non examination of the said Dr. A. Bala as a witness for the complainant.

Though the disability certificate were assailed contending that neither they were issued by competent authority nor were in consonance with relevant disability assessment manual, no assessment manual or regulation was infact brought to our notice by the Ld. Counsel for OPs 1 & 3. That apart, PW 2 –a public officer having been the Superintendent of Govt. Hospital testified (at pages 1 & 7) that from the Hospital disability certificate are issued following examination of the concerned applicant by a Board consisting of 3 or 4 doctors of the Hospital including, in most of the cases, an Orthopedic Surgeon and that in the cases of the two certificates Ext. 6 & 7 evaluation of disability were made observing the Disability Evaluation Manual issued by the Central Govt In fact in the certificate Ext. 6 it has been purported that the assessment was made as per instruction issued by Govt. of India Under no 4-2/83(iii) dt. 6.8.86 and in the certificate Ext.-7 it has been purported that the assessment was made as per Govt. instruction under No 16-18/97-NI dt. 18.02.2002. Both the certificates purport to bear the signature and seal of the Chairman and Superintendent of District Hospital of Dakshin Dinajpur and those of the other Members of the Board including Orthopedic Surgeon of the Hospital. Said certificates were proved before this Forum by PW2, the Superintendent of District Hospital who while attending the Forum for examination brought with him the concerned volumes of the Register of Disability Certificates maintained by the Hospital and proved the concerned entries of such register as Ext. 5 and 8.. From a consideration of the materials on record and the circumstances we are unable to accept the defence contention that no reliance should be place upon the disability certificates Ext. 6 & 7

Now we take up the matter as to weather the disablement suffered by the complainant can be regarded to have arisen out of sustaining of the injuries

PW-2 in course of his cross examination (recorded at page-10) stated that the complainant suffered from problem in his eyes too. At item no-1 in the disablement certificate dt 30.10.09 the term ‘Visionary’ appears to have been tick-marked along with the term ‘Orthopaedically’. Having drawn our attention to these markings it was urged by the Ld. Counsel for OPs-1 & 3 that in the situation it can not be regarded that the extent of disability was due to the sustaining of the injury by the complainant.

We curiously note in the latter part of said item no-1 where ‘nature of disability’ was to be mentioned, it has simply been recorded that the disablement was “Deformity and stiffness of (L) left elbow, wrist and shoulder joints”. Visionary problem does not appear to have been mentioned in such latter part of item no-1. From this, we are of the view that even though there was some problem in vision too, the prominent cause of disablement observed was deformity and stiffness of left elbow and shoulder joints as has been noted therein. Such being the situation it cannot be regarded that the disablement suffered by the complainant was substantially arising from deformities and stiffness of the joints. That apart, in certificate dt. 10.08.10-Ext.6 it has been certified that on examination the complainant was found 40% disable person with Post Traumatic Amputation at joints of 2^nd 3^rd & 4^th finger of left hand and that there were chances of variation of the percentage of disability by the passage of time. Hosp. Discharge certificates Ext. 4 & 4a go to show that the amputations were to be done in view of sustaining of the injuries in the fingers. Having kept in view the said notice recorded in the disability certificates and in the Hosp. Discharge certificates, we think, it can be regarded that the disability sustained by the complainant was as sequel to the injuries sustained by the complainant in his left hand.

Let us now turn to the question as to whether the disablement suffered by the complainant should be regarded to remain covered under the policy. Ld. Counsel for the OPs 1 & 3 urged that the since the injuries sustained by the complainant resulted in only loss of parts of three fingers of a hand and not an entire limb, such event cannot be regarded to have remained covered under the policy. To substantiate such claim he laid much emphasis to the stipulations appearing at item No. 2 to 8 under the head ‘Benefit’ printed on the backside of the policy. Contention advanced from the side of the complainant, on the other hand, was that as the complainant was to suffer disablement to an extent of 60% he is to get the benefit of the sum assured under the policy.

In fact, on the backside of the policy deed “scope of cover” appears to have been enumerated as under:

“Scope of Cover:

Death, loss of sight on both eyes, loss of both hands, loss of both feet, loss of one hand and one foot, loss of one eye and one hand, loss of one eye and one foot, loss of one limb or one eye, other total permanent Disablement of insured person resulting solely and directly from accident caused by external visible and violent means, subject to terms, conditions, exclusions of Personal Accident Insurance.

Benefit:

1] Death	100% of Sum Insured
2] Loss of sight on Both Eyes	100% of Sum Insured
3] Loss of Both Hands	100% of Sum Insured
4] Loss of Both Feet	100% of Sum Insured
5] Loss of One Hand and One Foot	100% of Sum Insured
6] Loss of One Eye and One Hand	100% of Sum Insured
7] Loss of One Eye and One Foot	100% of Sum Insured
8] Loss of One Eye or One Limb	50% of Sum Insured
9] Other total Permanent Disablement	100% of Sum Insured

Other Benefit:

1] Ambulance Charges up to a maximum limit of Rs. 1000/-

2] Carriage of Dead body expenses up to a maximum limit of Rs. 2500/-“

No other benefit appears to have been mentioned in the policy certificate.

It thus appears that the disablement arising out of loss of a number of fingers of a hand or parts thereof do not appear to have been explicitly covered under the policy.

However, in the context of construction of almost similarly expressed coverages of a Personal Accident Insurance Policy Hon’ble National Commission appears to have recorded an observation in Para-13 of the judgment made in the case of Ashok Kr. Tuteja vs. M/s. National Ins. Co. Pvt. Ltd. & Anr. reported in 1986 –2007 Consumer 11904 (NS) which goes as under :

“ ***In case it is strictly interpreted then the injury is not covered by any of the Clauses of insurance policy. But whether such a reading of insurance contract would be reasonable? It is a question staring at us. It is a matter which needs our serious consideration. If 100% and 50% disablement is covered by the insurance policy, by loss of sight of both the eyes or one eye then partial loss of eye sight in the two eyes taken separately should also be covered by the policy. Contract of Insurance is neither ornamental piece of document nor just a paper. It is contract having main purpose of compensating an injured victim. This main purpose should not be lost sight of. Mere policy is of no value if it fails to save its main purpose of insuring oneself against such eventualities and vicissitudes of life. If read in this context, one must say that partial injury would also be covered.*** ”

Here we find from the disability certificate Ext.6 and the evidence of CW-2 that on 10.8.07 the complainant was certified to have been a physically disabled person in view of post traumatic amputation at first phalangial joints of 2^nd, 3^rd and 4^th left fingers. In the disability certificate Ext. 7 the Board of Doctors of Dist. Hospital declared by the complainant to have suffered 60% disablement in view of deformity and stiffness of left elbow, wrist and shoulder joints. In such a situation, in view of above observation of the Hon’ble National Commission, we think, it has to be regarded that the disablement suffered by the complainant also remains covered under the Personal Accident Insurance Policy brought on record in this case as Ext. 1.

Thus from a consideration on the materials on record and the circumstances it has to be regarded that the repudiation of the claim alleging that the disability suffered by the complainant has been beyond the scope of the insurance policy, is to be regarded to have been improper. Such repudiation of the claim also amounts to deficiency in service on the part of OP Insurance company.

Here there is virtually no allegation of deficiency in service on the part of GTFS the OP 2.

We thus decide the Point No.2 holding that there was no deficiency in service on the part of OP 2 but service on the part of OPs 1 & 3 was deficient in so far as they repudiated the claim of the complainant and also failed to intimate the complainant as to its repudiation in time.

Point No.3:

In the complaint the complainant prayed for directing the OPs to pay to the complainant the entire of the sum assured, interest thereon and compensation.

Ld. Counsel for the complainant urged that in view of disablement suffered by the complainant the complainant was to get the entire of the sum assured. However, we notice that as per table printed on the backside of the policy under the heading ‘Benefit,’ entire of the sum assured is payable in case of death and in cases of loss of both eyes or of both hands or of both feet or of one hand and one foot or of one eye and one foot or of one eye and one hand or in case of any other total permanent of disablement. In case of loss of one eye or one limb benefit payable under the policy has been expressly shown to be 50% of the sum assured. Here the disability sustained by the complainant is not loss of one limb but one on ground of deformity and stiffness of joints arising from amputations of three fingers 2^nd, middle and ring from first phalangial joints, extent of which has been assessed at 60%. Having kept in view the extent of disability, we think it proper to allow the complainant to obtain 50% of the sum assured i.e. an amount of Rs.50,000/- by way of benefit under the personal accident insurance policy.

Here complainant’s claim for the benefit is based virtually upon his sustaining of disability. Disability certificates Exts. 6 & 7 were issued on 10.08.2007 and on 30.10.2009 respectively. The endorsements appearing on the claim form (filed by OPs 1 & 3 on 15.03.2011) purport that such claim form was actually received at the end of the GTFS on 17.04.2007. Obviously the disability certificates could not be furnished by the complainant along with the claim from. In fact on the materials on record we find no document or other evidence other than the complainants lawyer’s notice dated 30.12.2009 addressed to the OP-3 (exts. 9 ), to show that the copies of the disability certificate were furnished to the Insurance Co. Said notice purports to enclose copy of the disability certificate. Copy of the postal A/D card concerning the said lawyer’s notice (filed by the complainant on 02.12.2010) goes to indicate that such notice was served upon OP-3 on 01.01.2010.

Though it was urged by the Ld. Counsel for OPs 1 & 3 that repudiation of the claim was intimated to the complainant by Ins. Co.’s. letter dated 16.05.2007(copy filed by 1 & 3 on 12.04.2011) here there has been no document to show that the said letter was actually put in transmission to the complainant, far to speak of being served upon the complainant. Such Insurance Co. also does not appear to have responded to the said lawyer’s notice alleging that they had earlier repudiated the claim.

However, the Op Insurance Co. having received the said lawyer’s notice on 01.01.2010 does not appear to have taken into consideration the said disability certificate or to review the matter had there been any repudiation of the claim at an earlier point of time.

Treating that about 3 months time would have been required for settlement of the claim or of making of a review of the matter had there been any repudiation earlier, we think it proper to direct Insurance Co. to pay further interest over the benefit of Rs. 50,000/- w.e.f. 01.04.2010.

From a consideration of the attendant circumstances, in particular allowing of interest over the amount of benefit, we do not deem it wise to grant any amount by way of compensation.

We thus decide the point no.3 holding that the OPs 1 & 3 should be directed to pay to the complainant a sum of Rs.50,000/- by way of benefit under the P.A. Ins. policy and interest thereon at the rate of 10% P.A. w.e.f. 01.04.2010.

In the result, the complaint succeeds in part .

The date completion of service of notice is not apparent from the case record. However it appears that all of the O.Ps. entered appearance in the case on 7.4.2010 which was initially fixed for appearance and S/R. Instant proceeding is thus getting disposed of over a year after the OPs’ entering appearance in the case .Such delay appears to have caused in view of adjournments sought for mainly from the side of OP Ins. company either for filling written version or for hearing . In fact, case was once ordered for exparte hearing as against OPs 1 & 3.

Under such circumstances it is

O r d e r e d

That the complaint u/s 12 CP Act. brought by the complainant Sri Dulal Shekh on 4.3.2010 is allowed in part on contest giving directions mentioned herein after.

OP-1 & 3 shall pay to the complainant within 45 days from the service of copy of this order upon them a sum of Rs.50,000/- by way of benefit under the PA Insurance Policy bearing no OG-05-2401-9960-00000041 in view of complainant’s sustaining disability from accidental injuries and interest over the said amount of Rs.50,000/- at the @ 10% per annum from 1.4.2010 till actual payment.

In the event of failure in making payment , the complainant shall have the liberty to put this order in execution.

Let plain copies of this order be furnished to the parties forthwith free of cost.

Dictated & corrected

………..…….

(B. Niyogi)

President

We concur

………….…….

(Swapna Saha)

Member

……………….

(S.K. Ghosh)

Member