ADate of Filing:20/01/2016

Date of Order:06/07/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 6^TH DAY OF JULY 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.91/2016

V/s

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT:

1. This is the complaint filed by the complainant against the Opposite Party (hereinafter referred to as O.P) under Section 12 of the Consumer Protection Act, 1986  praying this Forum to direct the O.P to pay a sum of Rs. 2,22,768/- in respect of balance outstanding weekly benefits from 30.10.2014 to 4.4.2015 at the rate of Rs.1,428/- per day, Rs.1,00,000/- towards mental agony and distress and Rs.20,000/- towards cost of litigation and other relief as this Forum deems fit.

2. The brief facts of the complaint are that: the Complainant obtained Smart Personal Accident policy from O.P for Rs.20,00,000/- for a personal accident. He met with an accident on 3.9.2014 and sustained severe injuries to his left shoulder and left hand. He lodged a complaint to the jurisdictional police and got treatment at M/s. Ramaiah Harsha Hospital, Bengaluru and at M/s Sapthagiri Hospital, Bengaluru, from 3.9.2014 to 10.9.2014 as outpatient.  On the advice of the treating doctor, he got admitted to Ananya Hospital Pvt. Ltd., Rajajinagar, Bengaluru on 10.9.2014 and diagnosed as suffering from Communited Fracture Proximal Humerous (left) shoulder and operated on 11.9.2014 HEMI replacement of Ortho plasty (left shoulder) and discharged on 15.9.2014 with an advise to take rest for six weeks from 15.9.2014.  He took rest up to 30.10.2014 and further he was asked to take rest up to 14.12.2014. He underwent physiotherapy from 18.10.2014 to 21.11.2014. Again the Doctor at Ananya Hospital advised him to take rest till 4.3.2015.  The doctor has issued the medical report on 4.4.2015 stating that there exists disability.

3.    As per the accident insurance policy, O.P had to pay weekly benefits till 4.3.2015. Whereas, it has only given the benefit for 54 days only amounting to Rs.77,142/-. Inspite of requesting them to pay the weekly benefits for the remaining period, it did not acceded to his request and rejected his claim.  He approached the ombudsman with all necessary documents who inturn upheld the  decision taken by the insurance company and rejected his claim.  He is under treatment from the date of accident i.e. 3.9.2014 till April 2015 i.e (for a period of 31 weeks) and entitle to the weekly benefits. Whereas, O.P has only given weekly benefits for six weeks only. It has failed to reimburse the entire amount. Its attitude is totally unprofessional and not interested to settle the claim judiciously and wanted to make wrongful gain for itself.  The cause of the action of the complaint arose on 3.9.2014, the day of accident and subsequently and prayed to allow the complaint.

4.   Upon the service of notice, O.P appeared before the Forum through its advocate and filed the version praying the Forum to dismiss the complaint on the ground that it is devoid of materials and merit, there is no cause of action for the complaint, it is malicious, false, mala-fide by abusing the process of law. There is no deficiency or negligence on its part in respect of deciding the claim of the complainant. Machinery of law cannot be invoked on the basis of mere conjectures. The insurance is as per the terms of the agreement. It is bound by the rules and regulations issued by IRDA.  It has explained in detail the terms and conditions of the policy. O.P has admitted that the complainant obtained Smart Personal Accident insurance Policy valid from 30.8.2014 to 29.8.2015 and it has settled the claim of the complainant for a period of six (6) weeks. After it got the information regarding the accident, an investigator Lavanya and Company was entrusted to investigate the truth of the claim of the complainant. They have given a detailed report  on the base of the report  issued by Dr.Hemanth Reddy on 26.1.2015 wherein he has informed that there is no deficit in the function of left hand. 

5.   It is further contended that basing on the treatment taken by the complainant and on the basis of medical document and the certificate issued by Dr.Hemanth Reddy  it settled the weekly benefit available under the policy for a period of 54 days and paid Rs.77,142/-. The complainant aggrieved by the said decision approached the ombudsman who on hearing the complaint dismissed his claim.  The certificate issued by Dr.Madhava Murthy on 30.10.2014 has no basis since he has not treated the complainant. When the matter was pending before the ombudsman, he directed the complainant to get him examed by the treating doctor in presence of its representative regarding the disability to ascertain the disability of the complainant. After examining, the treated doctor has confirmed that the   complainant is not having any hand movement deficit.  After getting the details only the treated doctor discharged the complainant with an advice to take six weeks rest.In view of this, the claim of the complaint is not genuine and further by denying all the allegation made against it, has prayed to dismiss the complaint by imposing exemplary cost on the complainant.

6.      We have carefully gone through the entire evidence and documents produced by the complainant and O.P. After hearing their counsel, the following points arise for our consideration:-

1)   Whether the complainant has proved

                      deficiency  in service on the part of the

                      Opposite Party?

2)  Whether the complainant is entitled to       

                     the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT 1  :       In the Affirmative.

POINT 2  :       Partly in the Affirmative

         As per the final order.

REASONS

ON POINT No.1:-

8.     The complainant and the O.P have reiterated the facts of the complaint and the version in their affidavit filed in lieu of evidence respectively.

9.     The admitted facts are that the complainant obtained Smart Personal Accident policy from O.P for Rs.20,00,000/- for a personal accident. He met with an accident on 3.9.2014 and sustained severe injuries to its left shoulder and left hand. He lodged a complaint to the jurisdictional police and got treatment at Ramaiah Harsha Hospital Bengaluru, Sapthagiri Hospital Bengaluru from 3.9.2014 to 10.9.2014 as outpatient.  On the advise of the treating doctor, he got admitted to Ananya Hospital Pvt Ltd Rajajinagar Bengaluru on 10.9.2014 and diagnosed as suffering from Communited Fracture Proximal Humerous (left) and operated on 11.9.2014. HEMI replacement of Orthoplasty (left) shoulder and discharged on 15.9.2014 with an advise to take rest for six weeks from 15.9.2014.

10.  The O.P upon the claim of the complainant has paid Rs.77,127/- towards weekly benefits for period of 54 days only. Whereas the claim of the complainant is that as per the doctor’s advise he took rest upto 4.3.2015 which amounts to 31 weeks from the date of accident and hence he is entitle to receive the weekly benefits till the said period.

11.  The OP has refused to honour the claim of the complainant for 31 weeks on the ground that he has no disfunction of the hand as per the doctor Hemanth Reddy who is the treated doctor. O.P has also produced the questionnaire to  Dr.Hemanth kumar Reddy who has answered stating that :“The assessment of present condition : 0 to 40 degree of elevation painful movements, no further passive movements. axillary nerve sensation present.  Patient operated on 11.9.2014 for Hemi replacement”.   

12.   There is no mention of ‘No hand function deficit” mentioned  by the O.P in the said questioner. Except that, O.P has not produced the report of the investigator. It is the further case of the O.P that when the complainant approached the ombudsman, complainant was examined by the doctor. The said report is not made available by the O.P.

13.   On the other hand, the complainant has produced documents to show that he was operated on 11.9.2014 for Hemi-replacement Orthoplasty (left) shoulder due to the Communited Fracture Of Proximal Humerous (Left) bone and was discharged on 15.9.2014  with a specific direction and was advised to take six weeks rest from 30.10.2014.  This certificate was issued by one of the Doctor Dr. Sri Madhavamurthy.R who is also one of the consultant doctor. Again he was given a certificate to take rest till 14.12.2014. This certificate is signed by Dr.Madhava Murthy. On 30.11.2014 the complainant has again consulted physiotherapist attached to Ananya Hospital, the said Dr.Jawaid has mentioned that: he has given treatment to the complainant from 18^th October to 21^st November 2014. On 4.3.2015 Dr. Hemanth Kumar, Consultant, Shoulder and Knee Arthroscopy surgeon who is also a consultant who operated the complainant, has issued a certificate that complainant is advised rest from 26.1.2015 till 4.3.2015 and advised not to do any hard work. He is fit to do light work only.

14.   The three doctors medical board of K.C General Hospital after examining the complainant has issued a disability certificate wherein they have mentioned loco motor disability – at Hemi arthoplasty left shoulder 50% . This is signed by Chairman, Medical Authority, Medical Specialist , Member and Orthopedic Specialist, a member of medical authority K.C. General Hospitals Bengaluru. When this  is taken into consideration the complainant is having a disability in his left shoulder joint due to the accident which was operated by the team of doctors of Ananya Hospital.

15.   As per the certificates issued by the doctors as mentioned above he was asked to take rest from 30.12.2014 till 4.3.2015.  The say of the O.P that there is no disability and he has not taken any rest and without doing any work cannot be accepted in view of the above certificate issued by the medical board. The documents relied on by the O.P do not depict anything regarding the complainant not having any disability or that he is able to do the work as a normal man do under the circumstances. In view of this the denying of the beneficial weekly benefit for 31 weeks by the O.P amounts to deficiency in service and hence we answer Point No.1 in the affirmative.

POINT No.2:

16.   It is not in dispute that in the contract of accident insurance entered by the complainant and the O.P, O.P has undertaken to provide the weekly compensation to the complainant. As per the smart personal accident – individual  insurance policy – policy wordings at Clause 7 (v) Payment of weekly compensation until the total amount shall have been ascertained and agreed.  It is not in dispute that there is no agreement as such since already O.P has paid weekly compensation for a period of 54 days. In view of our answer to Point NO.1 in the affirmative, O.P. is bound to pay the balance of weekly compensation from 30.9.2014 to. 4.3.2015 less already paid.

17.   In view of the O.P rejecting the claim of the complainant, complainant made to file this complaint by spending his precious time. He has lost his mental peace and put to mental tension, physical strain and financial loss. Hence we are of the opinion that if a sum of Rs.15,000/- towards damages awarded to of the complainant and Rs.5,000/- towards cost of proceedings and litigation expenses would meet the ends of justice. In view of the same, we answer point No.2 Partly in the Affirmative and pass the following:

ORDER

1. The complaint is hereby partly allowed with cost.

2. O.P. is. Bharathi AXA General Insurance Co. Ltd., represented by its Authorized Signatory is hereby directed to pay the weekly benefit from 30.9.2014 to 4.3.2015 less already paid for 54 days at the rate of Rs.1,428/- to the complainant along with interest at the rate 12% per annum from the date of complaint i.e 20.01.2016 till payment of full amount.

3. Further O.P. is hereby directed to pay Rs.15,000/- towards damages to the complainant and Rs.5,000/- towards cost of the litigation expenses.

4.  The O.P is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 6^th Day of JULY 2018)  

MEMBER                        PRESIDENT

*RAK

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

CW-1: Sri Shanth - Complainant.

Copies of Documents produced on behalf of Complainant/s:

Annexure-A: Copy of the Policy.

Annexure-B: Copy of the FIR and complaint.

Annexure-C: Copy of the  bills.

Annexure-D: Copy of the  bills.

Annexure-E: Copy of the discharge summary.

Annexure-F: Copy of the bill.

Annexure-G: Copy of the bill.

Annexure-H: Copy of the report dated 30.11.2014.

Annexure-J & K: Copy of the medical reports (2 Nos.) dated 4.3.2015.

Annexure-L: Copy of the emails.

Annexure-M: Copy of the award passed by Insurance Ombudsman.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sandeep S.R., Senior Executive of O.P.

Copies of Documents produced on behalf of Opposite Party/s

-Nil-

MEMBER                        PRESIDENT