DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 18th day of June, 2018
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
C.D Case No. 02 of 2017
Abdul Munim Khan
S/o Late Golam Mustafa
At: Mirzapur
Po/Ps/Dist: Bhadrak
……………………. Complainant
(Versus)
1. Divisional Manager of National Insurance Company Ltd.
Cuttack
At: Cantonment Road
Po/Ps/Dist: Cuttack
2. Branch Manager of National Insurance Company Ltd.
Bhadrak Branch, At: Dahanigadia
Po/Ps/Dist: Bhadrak
…………………………..Opp. Parties
Advocate For the Complainant: Sri J. B Agasti & Others
Advocate For the O.Ps: Sri A. Panda
Date of hearing: 22.05.2017
Date of order: 18.06.2018
SRI RAGHUNATH KAR, PRESIDENT
The complainant has filed the complaint alleging against the O.Ps for deficiency of service, disclosing the following facts, that on 25.01.2015 the complainant being a driver was performing his duty, the laborers from one Max Pick Up vehicle bearing No- OR-22-9992 were unloading marbles from the said vehicle. Suddenly 10 to 15 pieces of marbles fell down on the left hand wrist of the complainant, as a result of which the left hand wrist (mid foream) of the complainant has been seriously injured. That, the complainant has insured his body through the “Group Janata” personal accident insurance policy by the OP No. 1 and the said policy No. ix 100300/47/01/9600022, which is valid from 15.03.2004 to 14.03.2019. That, after the occurrence of the accident the complainant was admitted initially at Bhadrak Dist. Head Quarter’s Hospital and on the same day, he was referred to S.C.B Medical College & Hospital, Cuttack for batter treatment and later on he was admitted at General Nursing Home, Mangalabag, Cuttack on dt. 26.01.2015 to 18.02.2015 and his left wrist has been amputed through operation on dt. 27.01.2015. The complainant has also spent Rs 50,000/- for medicine & treatment & sustained 100% disability in his left hand. At present his quite unable to drive any vehicle or his permanently disabled.
The complainant approached to the OP No. 1 several times to settle the claim as per the policy terms & conditions but the OP No. 1 did not pay any heed to refused to request of the complainant and repudiated his claim. So the complainant was compelled to serve a legal notice upon the OP No. 1 on 09.12.2016 requesting to settle his claim The OP No. 1 has not sent any reply to the complainant with regard to his legal notice. The OP No. 1 has neither carried out the terms and conditions of the policy condition nor he has settled any claim in favour of the complainant. Hence both the O.Ps have caused serious deficiency of service against the O.Ps so the complainant has claimed Rs 2,00,000/- only insured amount in favour of the complainant. The complainant has also averred the cause of action arose 25.01.2015 when the marbles fail down on the left wrist of the complainant and further the cause of action arose on 09.12.2016 against the OP No. 1 when the complainant has sent legal notice to the OP No. 1.
The complainant has sought for the reliefs as follows (Xerox copy):-
1. That, the OP No. 1 be directed to pay a compensation amount of Rs 2,00,000/- (two lakhs) along with expenditure of medicine bill of Rs 50,000/- (fifty thousand) and also the OP No. 1 be directed to pay @ 9% interest from the date of filing of this case.
2. That, the cost of the proceeding be paid to the complainant.
3. That, the O.Ps No. 1 be directed to pay Rs 5,000/- (five thousand) only for his mental agony.
4. Any other relief be given to this complainant which Forum feels fit and proper.
Documents relied upon the complainant (Xerox copy):-
1. Copy of National Insurance Company Ltd. of policy No- 100300/47/01/9600022.
2. Copy of Ref. certificate of Bhadrak.
3. Copy of discharge card of General Nursing Home of Mangalbag, Cuttack- 753001.
4. Copy of bill of medicine bill on dt. 18.02.2015 by the General Nursing Home, Cuttack.
5. Copy of permanent disability certificate of the complainant issued by the Chief Medical Officer, Bhadrak on dt. 03.04.2015.
6. Copy of legal notice sent on 09.12.2016 to OP No. 1.
7. Copy of postal receipt sent on 09.12.2016.
The O.Ps have filed their written version describing the following facts as follows that the O.Ps have challenged the maintainability of this complaint and stated the allegations made against them are false. The complaint has no cause of action. The O.Ps have also challenged the averments of the complaint regarding various legal grounds. The O.Ps have cited “the Hon’ble Supreme Court of India in Life Insurance Corporation of India Vs Sindhu (2006) 5 SCC 258, has clearly held that the policy is a contract entered into between the LIC and the policy holder and the terms and conditions of the policy would be binding on the parties and the same cannot be re-written in exercise of writ jurisdiction of this Forum”. This case is bad for miss-joinder of unnecessary party such as these O.Ps. Because the complainant has neither bought any goods or hired any service for a consideration which has been paid or partly promised, or under any system of deferred payment. The complainant is not a consumer under the O.Ps as defined under 2 (d) of the CP Act. At the outset the OP No. 1 & 2 deny all the allegations contained in the complaint, except those which are specifically admitted here in after in the written version, and nothing stated in the complaint should be deemed to be admitted merely because the same is not specifically traversed. It is also submitted that anything stated in the complaint contrary to and/or stated in consistent with what stated in the present written version be deemed to be expressly denied.
That, the averments made in Para 1 & 2 of the complaint are not within the special knowledge of the O.Ps for which these OP do not admit the same and calls upon the complainant put to strict proof of the same by documentary evidence. The averments made in Para 3 of the complaint are totally false, imaginary and concocted for which the OP No. 1 categorically deny the same. Because this OP has not issued the Group Janata Personal Insurance policy bearing No- 1X100300/47/01/9600022 for the period from 15.03.2004 to 14.03.2019 to the complainant. The averments made in the Para No- 4 of the complaint are not within the special knowledge of the OP No. 1 & 2 for which these OP do not admit the same. The other persons of the complaint filed by the complainant are completely refused by the O.Ps. The O.Ps have admitted the averments made of the complainant in Para No- regarding the disability certificate No- 21041510773 dt. 03.04.2015 are admitted by the O.Ps, in the Para No- 23 of the written version. From the scope and coverage of risk mentioned in overleaf of issued policy under the heading of “BENEFIT” it is ascertained that there is no scope/provision under the policy to grant compensation neither for amputation of left mid fore arm nor for 60% disability but covers risk of 50% of the sum insured for actual loss by physical separation of one entire hand as enumerated under Col. 2.8 under the heading of benefit. But in the instant case there is no physical separation of one entire hand resulting solely and directly from accident caused by external visible and violent means. So the complainant is not entitled to get any compensation as per terms and conditions of the issued policy.
Hence the O.Ps have prayed for the dismissal of the complaint.
The O.Ps have filed some decisions of the National Commission. The O.ps have filed no documents in support of their stands.
OBSERVATION
We have already perused the complaint as well as the documents filed by the complainant, so also the written version and the citations of National Commission. In this regard the following issues have been framed.
1. Whether the complainant is a consumer?
2. Whether there is any cause of action?
3. Whether the O.Ps have caused any deficiency in service towards the complainant?
4. Whether complainant is entitled to the claim what he has sought for?
Coming to the issue No- 1 we have decided that the complainant is definitely a consumer because he has paid the sum of Rs 2,00,000/- to the O.Ps as insurance according to the CP Act. As he has paid for the service of insurance, so obviously he is a consumer he has filed the complaint within the stipulated time on 11.01.2017 as the accident took place on 25.01.2015. So his complaint has been filed within two years from the date of occurrence. The complaint is not barred by limitation.
Coming to the issue No- 2 we have come to the decision that the complaint has been submitted by the complainant on 11.01.2017 where the accident took place. So here the cause of action arose on 25.01.2015 on the day which the accident took place. The complaint has been submitted within two years from the date of occurrence. The accident took place within the jurisdiction of the Dist. Bhadrak. After the accident took place the complainant was taken to Bhadrak Hospital which is the nearest Hospital from the date place of occurrence. It is further observed that the complainant has clearly mentioned in his complaint that the cause of action arose on dt. 25.01.2015. The complaint has got the cause of action, where the O.Ps denial is not sustainable in respect of the cause of action.
Coming to the issue No- 3, we have decided with regard to the repudiation of the complainant’s application for claiming his insured amount several times where the O.Ps have repudiated the same illegally. Subsequently the complainant served a legal notice on dt. 09.12.2016 to the OP No. 1 to settle through his concerned Advocate, his insured amount or the claim according to the terms and conditions of the policy but the O.Ps did not send any reply to the complainant. So the complainant has held that his personal applications or information’s as well as the legal notice have been repudiated. The complainant has also submitted a bunch of medical certificates, discharged certificate, discharge card of nursing home, the cash memo of the nursing home, the permanent disabled certificate issued by the CDMO Bhadrak. These certificates have proved that there was an accident, the complainant was taken to the hospital for treatment, the treatment went on and subsequently his left wrist and palm were amputed. The complainant was discharged from the medical on 18.02.2015 when he was admitted at General Nursing Home, Mangalbag, Cuttack on 26.01.2015. We found that no document has been filed on behalf of the O.Ps to prove there stands or to repudiate the claim of the complainant. It has been clearly found that there is deficiency of service caused by the O.Ps towards the complainant.
Coming to the issue No- 4, it is primafacie case that the complainant has deposited Rs 2,00,000/- in the National Insurance Company Ltd. Vide certificate No- 04/0108239. The tenure was 15.03.2014 to 14.03.2019. The accident took place on 25.01.2015. At that time the insurance was valid. As per the terms and conditions the complainant informed this matter before the office of the OP. But it was a matter of regret that the claim of the complainant was repudiated by the OP No. 1. The complainant finding no other way requested the O.Ps to settle the claim of the complainant. But the complainant is a befitting person to be entitled the claim. The policy certificate from the insurance company which has been issued in favour of the complainant shows that the complainant has to if the complainant would have informed the accident to the company within one month as per the several documents filed by the complainant proved that the O.Ps have caused deficiency of service towards the complainant.
On the other hand the O.Ps have filed no documents. They have failed to prove their case the complainant has filed a bunch of documents to prove his case the O.Ps have knowingly repudiated the claim of the poor complainant which is he entitled to the claim.
In the conclusion we have observed that there is serious deficiency of service have been caused by the O.Ps to the complainant. The left hand palm of the complainant has been amputed but till now, the OP has not moved to pay a single payee towards. According to the terms & conditions of the insurance certificate or the bond issued by National Insurance Company Ltd. the complainant has lost his left hand. All most 80% of the left hand has been physically separated from his body. Hence it is ordered;
ORDER
The complaint be and the same is allowed partly on contest directing to the O.Ps to pay the claimed amount Rs 1,00,000/- to the complainant as his claimed amount stipulated in the bond paper. The O.Ps are also directed to pay Rs 3,000/- towards mental agony and Rs 2,000/- towards cost of the litigation to the complainant concurrently. The O.Ps are further directed to carry out this order within 30 days on receipt of the same failing which the O.Ps are further to pay Rs 9% interest of the claimed amount Rs 1,00,000/-.
This order is pronounced in the open Forum on this day of 18th June, 2018 under my hand and seal of the Forum.
