LIFE INSURANCE CORPORATION OF INDIA vs Sri Hari

THIS revision is directed against the order of the State Consumer Disputes Redressal Commission, Bangalore (in short, ''the State Commission'') dated 30.8.2011 in appeal No. 1224 of 2010 whereby the State Commission dismissed the appeal preferred by the petitioner Insurance Company against the order of the District Forum, Koppal directing thus: 1. That the opposite party is directed to pay the accident benefit of the endowment assurance policy No. (i) 660621613 and (ii) 660926503 to the complainant within 30 days from this order failing which the said amount carries interest @ 6% p.a. from the date of filing the complaint till realization.

FURTHER the opposite party is directed to pay Rs. 2000 as costs of the proceedings. Briefly put, the facts relevant for the disposal of the revision petition are that the respondent Sri Hari, a tailor by profession, obtained two Endowment Assurance Policy (Accident Benefit) for Rs. 25,000 and Rs. 50,000 respectively on 25.11.1999 and 10.3.2002. The policies were to expire on 28.11.2014 and 15.2.2017 respectively. The respondent -complainant paid the monthly premium regularly. On 26.8.2008 at about 7.00 a.m., the respondent -complainant was hit by a motorcycle. Consequently, the complainant sustained grievous injuries. He was shifted to private hospital where he was given first aid and from there the complainant was shifted for treatment to Dr. Shirol''s Nursing Home at Gadag. The complainant had suffered fracture of left thigh bone i.e. neck of femur was crushed into pieces. The complainant was subjected to surgery and a steel rod was inserted in his left thigh bone. The complainant incurred expenditure for the surgery to the tune of Rs. 75,000. It is the case of the petitioner that treating doctor advised him to avoid heavy work and also told him that he would not be able to work on foot pedal tailoring machine because of insertion of the steel rod and because it was dangerous to his well -being. It is claimed by the complainant that because of the aforesaid accidental injury, the complainant has suffered permanent disability as a result of which he cannot carry on his profession. The complainant thus filed insurance claims under accident benefit clause of the aforesaid two policies. The claims, however, were repudiated. This led to filing of the consumer complaint.

The petitioner opposite party on being served with the notice resisted the claim under the complaint. In the written statement, petitioner admitted having issued above noted two Endowment Insurance Policy (with accident benefit) to the complainant. It was, however, denied that complainant had suffered fracture of his left thigh bone i.e. neck of the femur or that because of the aforesaid injury, he has suffered permanent disability. The petitioner also claimed that even if the allegations in the complaint are taken to be true, then also, the complainant has not suffered permanent disability as contemplated under the terms and conditions of the insurance contract. It is also alleged that respondent -complainant has failed to produce any document to establish permanent disability and that he has not got himself examined by a specialist doctor appointed by the petitioner -Corporation. Thus, it is claimed that the petitioner is not entitled to pay accident benefit to the complainant.

Learned District Forum on consideration of the evidence and pleadings of the parties accepted the version of the complainant and concluded that as a result of the injury suffered in the accident, the respondent -complainant has suffered permanent disability of 49% which has rendered him unfit for tailoring work with the use of foot pedal tailoring machine. Thus, the complaint was allowed and the above noted directions were passed.

BEING aggrieved of the order of the District Forum, the petitioner preferred an appeal before the State Commission and the State Commission, however, agreed with the findings of the District Forum and dismissed the appeal. It is against the aforesaid order, the petitioner has preferred the revision petition.

LEARNED Mr. G. Nataraj, Advocate for the petitioner has submitted that the impugned orders of the Foras below are not sustainable for the reason that the orders have been passed ignoring the terms and conditions of the insurance contract. Learned Counsel contended that as per the terms and conditions of the insurance contract, in order to avail disability benefit of the accident, the insured is required to show that he satisfies the following conditions which are pre requisites for disbursing the benefit under the insurance policy: (i) The disability should be total and permanent;

(ii) It should be as a result of accident;

(iii) Disability should be such that, there is neither then nor at any time thereafter any work, occupation or profession that, the life assured can ever sufficiently do or follow to earn any wages, compensation or profits;

(iv) Loss of entire sight of both eyes or amputation of both hands above the wrists or amputation of both the feet above ankles or amputation of one hand above the wrist or one foot above the ankle are deemed to constitute such disability;

(v) Proof of disability to the satisfaction of the Corporation must be given;

(vi) Any medical examiner nominated by the Corporation must be given;

(vii) Any medical examiner nominated by the Corporation shall be allowed to examine the Corporation shall be allowed to examine the disabled person;

(viii) If admitted, the amount equal to sum assured will be paid in monthly installments spread over 10 years and future premiums will be waived.

It is contended by learned Counsel for the petitioner that the respondent -complainant admittedly has not suffered the permanent disability in terms of the above conditions and he has also not been able to establish that his disability is such which has rendered him unable to carry on his occupation and profession as a tailor. Learned Counsel further submitted that the Foras below have failed to appreciate that even if because of his leg injury, the respondent cannot work on foot pedal sewing machine, he can always engage in some other profession to earn wages and compensation. Therefore, in view of Clause III of the above noted conditions, the respondent is not entitled to the accident benefit. In support of his claim, learned Counsel for the petitioner has relied upon the judgment of Coordinate Bench of this Commission in RP No. 1511 of 2005, Ajay Kumar v. Life Insurance Corporation of India, I : (2007) CPJ 230 (NC) : decided on 8.1.2007.

ON the contrary, learned Ms. Manju Mudgal, Advocate has argued in support of the impugned order. Learned Counsel for the respondent has contended that both the foras below have returned a concurrent findings that because of the accident, the respondent -complainant has suffered 49% permanent disability, a rod has been inserted in his left leg to set right the fracture in bone and because of insertion of the rod, the complainant now cannot carry on his profession as a tailor because he cannot work on foot pedal sewing machine. Therefore, respondent is covered under the above noted condition on the ground of accident benefit and that the Foras below have rightly allowed the complaint.

WE have considered the rival contentions. Only question which needs determination in this matter is whether or not, the petitioner satisfies the pre -requisite conditions for grant of the accident benefit to him? It is undisputed that the petitioner has obtained two insurance policies with accident benefit. It is also not disputed that during the currency of those insurance policies, the complainant met with an accident and suffered fracture of his left thigh bone i.e. neck of the femur bone and that the aforesaid fracture was set right by orthopedic surgery and implanting of a rod to support the bone. Case of the complainant is that because of the aforesaid surgery and implant of the rod, he has been advised not to work on foot pedal tailoring machine. Both the Foras below have returned a concurrent finding that complainant is a tailor by profession and also that because of accident, he has suffered fracture which required implant of a rod and as a consequence of that, he has been medically advised not to work on foot pedal tailoring machine because it can endanger the bone of his left leg. We find no reason to interfere in the aforesaid finding of fact given by the Foras below returned after analysing the evidence produced by the parties.

THE complainant has placed on record the Disability Certificate dated 19.8.2009 issued by Doctor Vishwesh C. Shirol, M.S. Ortho. The relevant paragraph is reproduced thus: As the deformity is permanent, even after the physiotherapy treatment, I have issued a permanent disability on 19th August, 2019. I am of the opinion that the above injuries are grievous in nature and are caused by vehicular accident.

The above said injuries causes 49% of permanent disability of the part and they are assessed on the basis of severe pain, limping, wasting of muscles G2 deformity of Lt. Hip i.e. functionality - -walking without support and inability to squat on the floor and working capability of the Lt. lower limb, as per the Kessler''s method.

FROM reading of the above, it is clear that because of the injury suffered in the accident, the petitioner has suffered 49% permanent disability as a result of which his functionality has impaired so far as walking without support, inability to squat on the floor and working capability of the left lower limb is concerned. From this, it is evident that because of the accidental injury, the petitioner has suffered the disability which has rendered him unable to work on the foot pedal tailoring machine. The complainant is a tailor by profession. Therefore, this incapability has effected his earning capacity. The petitioner is trying to justify the repudiation of insurance claim in view of Clause III of Disability Benefit clause which is reproduced thus: (iii) Disability should be such that, there is neither then nor at any time thereafter any work, occupation or profession that, the life assured can ever sufficiently do or follow to earn any wages, compensation or profits.

On reading of the above, it is evident that insured can take advantage of Disability Certificate only if he has suffered disability which renders him incapable of any work, occupation or profession he could ever sufficiently do to earn wages, compensation or profits. The words "life assured can ever sufficiently do or follow to earn wages, compensation or profits" are significant. In our considered view, the user of the aforesaid words clearly indicate the intention that the work should be of such a nature for which the insured has necessary proficiency. The insured admittedly was a tailor and had sufficient working knowledge of that profession. Due to the injury suffered by him, he cannot work on foot pedal tailor machine. He cannot be expected to work as a labour or house keeper, etc. If such an interpretation is given to this provision, then nobody would be able to get benefit of the accident benefit clause because the insurer would always come up with the plea that a person can do some cleaning work job or other menial job. Therefore, it can be safely concluded that because of the injury sustained, the insured cannot sufficiently follow his occupation to earn wages, compensation or profit. Thus, in our view the complainant who has suffered 49% permanent disability fulfils a pre -condition to avail of the accident clause. As such, we do not find fault with the orders of the Foras below allowing the complaint and awarding the compensation to the complainant.

In view of the discussion above, we do not find any jurisdictional error or material irregularity in the impugned orders of the Foras below which may call for interference by this Commission in exercise of revisional jurisdiction. Revision petition is, therefore, dismissed.