Debasis Bhattacharya, Member:
This appeal is directed against the judgment and order dated 29.06.2011 in Case No. 06/2010 passed by the Ld. District Forum, Dakshin Dinajpur.
By the impugned judgment, the Ld. District Forum has allowed the complaint in part on contest giving directions to the OP 1 and 3 to pay to the Complainant within 45 days from the service of the copy of the order upon them a sum of Rs.50,000/- (Rupees fifty thousand) by way of benefit under PA Insurance Policy bearing no. OG-05-2401-9960-00000041 in view of the Complainants sustaining disability from accidental injuries and interest over the said amount of Rs.50,000/- (Rupees fifty thousand) @ 10% per annum from 01.04.2010 till actual payment. Being aggrieved and dissatisfied with the impugned order, the Insurance Company has preferred this appeal.
It is the case of the Complainant/Respondent 1 in his petition of complaint that he opened one policy of the OP Insurance Company through OP GTFS being No. OG-05-2401-9960-00000041 for the period covering from 30.05.2005 to 29.05.2010 (midnight). On 04.02.007 at about 09.00 hrs., when he was cutting firewoods in his houseyards for domestic use with a âDao, he chopped three fingers of his left hand which were partly separated from the middle joint. He was immediately admitted to Kaldighi Hospital at Gangarampur and was referred to Balurghat District Hospital for medical treatment, where the Doctor operated and amputed his 2nd, 3rd, and 4th fingers from the middle joint and was discharged on 07.02.2007. On 17.02.2007, he reported the matter to Tapan P.S. vide GDE No.727 dated 17.02.2007. Due to such accident, he became 60% physically disabled and the Office of the Superintendent, District Hospital, Dakshin Dinajpur, Balurghat issued Disability Certificate. He informed the matter to the OP 3 through the OP 2 and sent the claim paper along with other papers accordingly and the Insurance Company sent an Investigator, Tamash Roy, to investigate the matter, to whom he handed over all the documents, but since then he did not receive any claim from the Insurance Company. So, he sent an Advocates letter to the OP 1 on 30.12.2009 through registered post and OP 1 received the same on 01.01.2010, but no action has been taken. Accordingly, the complaint case.
It is the case of the Appellants/OP 1 and 3, in their W.V., that the nature of injury is not accidental in nature and does not fall under the interpretation of âAccidental Injuriesâ, and so there is no cause of action. Further, according to the MoU between the OP 2 and these OPs, the Complainant is not legally entitled to get any relief without proof about his status and relations and that he is having profession of âCultivatorâ and as such he in no event can be called a consumer. Furthermore, the âDisability Certificate issued by Dr. A. Bala of the District Hospital, Balurghat dated 30.10.2009 is without legality and validity. Notice of Advocate dated 30.12.2009 and 02.02.2010 are altogether made out and served upon these OPs for the only reason to avoid time-barred claim and to make out commencement of fresh cause of action with malafide and unreasonable intention and to take the opportunity of the scope provided by the C.P. Act. The policy being a personal accident policy and the sum insured or part of the sum insured is paid only when the insured suffered any of the disabilities described in the policy. As the Complainant has not suffered any such losses but lost his three fingers from middle joint, the complaint is liable to be dismissed and there is no deficiency of service on the part of these OPs and they have rightly repudiated the claim.
The case of the OP 2/Respondent 2 in his W.V. is supportive of the Complainants case but that there is no deficiency in service on the part of such OP.
It is to be considered if the impugned judgment or order suffers from any anomaly so as to reverse the same in this appeal, or not.
Decision with reasons.
Ld. Advocate for the Appellants has made out that in this case it is a named peril policy which is to be indemnified upon happening of an accident as defined in the policy itself and loss of three fingers as happened in this case does not fall within the scope of this Personal Accident Policy. He has referred a decision of the Honble Supreme Court reported in AIR 2004 SC 4794 in this respect.
Ld. Advocates appearing for the respective Respondents have supported the decision of the Ld. District Forum.
Admittedly and avowedly, it is a Personal Accident Policy issued by the Appellants in favour of the Respondent 1 through the Respondent 2, the insured and the real beneficiary is the Respondent 1 and that under the scope of cover and benefit, certain five items have been listed, but not any other type of accident including the loss of fingers. Such scope of cover and benefit are included in the policy document under the head, âTerms, Conditions, Exclusions, Definitionsâ. The Ld. District Forum has considered such scope of cover and benefit. It has gone into the detail in all the aspects of the matter and duly considered the case of the Complainant vis-Ã -vis the position of the Insurance Company and decided the case in favour of the Complainant partly. There has been elaborate elucidation of all the materials of fact and law. In this respect, the judgment of the Honble Supreme Court, as referred by the Ld. Advocate for the Appellants, is in respect of a policy for coverage against burglary and/or house breaking, and not theft, and as such it is not open for the Court to interpret expressions appearing in policy in terms of Criminal Law, and accordingly the Honble Court allowed the appeal of the Insurance Company by setting aside the order passed by the Honble National Commission confirming the order of the State Commission and the District Forum. But, it held that the amount of compensation which has already been paid to the Respondent shall not be recovered in the facts and circumstances of the present case. The case in hand before us is in respect of another perspective. It is accidental loss of fingers and amputation, but strictly it does not fall within the stipulation of âTerms, Conditions, Exclusions, Definitionsâ, annexed with the policy document. The Ld. District Forum has given benefit in favour of the Complainant, as said earlier, by weighing the facts and the law before it. It has considered a decision of the Honble National Commission reported in 1986-2007 Consumer 11904. Considering all aspects in the matter, including the postulate of law, it cannot be said in the instant case that the benefit of Rs.50,000/- (Rupees fifty thousand) given to the Complainant by the Ld. District Forum is unreasonable and unjustified. Accordingly, the impugned judgment and order stands confirmed.
Hence,
Ordered
that the appeal be and the same is dismissed on contest against the Respondents but without any order as to costs. The impugned judgment and order is hereby affirmed.