At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
By, SMT. VALSALA SARANGADHARAN: MEMBER & SHRI. S. CHANDRA MOHAN NAIR: MEMBER
For the Appearing Parties: Rajan P.Kaliyath, Thomas Sebastain, Advocates.
SHRI.S.CHANDRA MOHAN NAIR : MEMBER
1. The opposite party in O.P.No.158/03 of CDRF, Idukki has come up in this appeal assailing the order dated 4.11.2003 were by the opposite party was directed to pay to the complainant a sum of Rs.6,000/- towards lawful compensation as per the policy for the period from 26.12.2002 to 16.1.2003 and also Rs.3,000/- by way of compensation for deficiency in service and cost of the petition.
2. The facts bereft of unnecessary details in the complaint are that the complainant who is an advocate by profession
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took a personal accident insurance policy from the opposite party which would expire on 25.8.2003. On 26.12.2002 he fell down and sustained fracture to the left palm. The complainant was treated at Janatha Clinic, Thodupuzha and his left hand was under plaster till 16.1.2003. He was having pain for one and half months. As the claim made to the opposite party was repudiated the complaint was filed praying for directions to the opposite party to pay a sum of Rs.10,000/- towards the eligible policy amount and 5,000/- rupees as cost.
3. Disputing the allegations made in the complaint, the opposite party filed a version stating that though there was a condition in the policy that 1% of the capital sum insured per week was entitled if the insured suffered temporary total disablement due to the injury, the complainant was not having temporary total disablement as only his left 4th metacarpal at the base was facturered due to the falling. It was also contended that in the medical certificate it was stated that the complainant was under plaster of paris for a period from 26.12.2002 to 16.1.2003 and that he could attend his practice partially and in such a circumstance the opposite party was justified in disallowing the claim on the basis of the policy condition. The opposite party further submitted that the claim made by the complainant was untenable and hence prayed for the dismissal of the complaint with cost.
4. The evidence consisted of the oral testimony of the complainant as PW1 and documents Exts.P1 to P5. Exts.R1 was produced by the opposite party in support of their contentions.
5. The Forum below relying on Ext.P3 allowed claim of the complainant to a greater extent were by the impugned order was passed directing the opposite party to pay the amounts aforesaid.
6. We heard the counsel for the appellant. There was no representation for the respondent. The lower court records were also available for our consideration.
7. The learned counsel for the appellant argued his case based on the contentions raised in the version and the grounds urged in the memorandum of appeal. It is this case of the opposite party that the insurance company is liable to pay 1% of the insured sum per week only if there is temporary total disability suffered by the complainant. In the instant case there was no temporary total disablement. He invited our attention to Ext.R1 wherein Clause (f) of the policy conditions would show that the amount of 1% of the capital sum insured need be paid only if the injury remitted in temporary total disablement and the insured person shall be totally disabled from engaging in any employment or occupation of any description whatsoever. The learned counsel argued that in the instant case there was no temporary total disablement for the complainant as in Ext.P3 it is clear that the complainant could attend to his duties partially as the hand involved is the left one. He invited our further attention to the decision reported in III (2006) SLT 665 of the Hon?ble Supreme Court (New India Assurance Co.Ltd. Vs. Harshadbhai Modhiya & Another ) wherein it was held that any contract of insurance is governed by the provisions of the Insurance Act and the policy conditions of the insurance have to be scrupulously followed and in the instant case the opposite party/company can no may be blamed for disallowing the claim. In such a circumstance it is his case that the Forum below ought to have dismissed the complaint instead of relying on para 10 of Ext.P3. The learned counsel also submitted before us that the compensation and cost of Rs.3,000/- awarded is also very much on the higher side and pride for setting aside the order of the Forum below.
8. Hearing the counsel for the appellant and perusing the records, we feel that there is force in the arguments of the learned counsel that the company opposite party/company is liable to pay 1% of the insured sum only for the period of temporary total disablement. In Ext.P3 the Doctor has certified vide para 10 that the complainant was having total disablement and the complainant was on plaster of paris for the period from 26.12.2002 to 16.1.2003 but in para 11 it is seen qualified that the complainant could attend to his duties partially as the hand involved was the left one. So it can be seen that the complainant was able to do his work partially. In such a situation the policy condition that injured person shall be totally disabled from engaging in any employment or occupation of any description cannot be made applicable to the case of the complainant and we are of the conclusion that the complainant was not eligible to get the claim made for by him and the opposite party could not be held negligent or deficient in disallowing the claim of the complainant.
9. In the result the appeal is allowed setting aside the order dated 4.11.2003 in O.P.No.158/03 of the CDRF, Idukki there by dismissing the complaint. In the facts and circumstances in the case the parties are directed to suffer there respective costs in the present appeal