Anju vs Life Insurance Corporation of India

THIS appeal is directed against the order dated 23.12.2005 passed by the District Forum, Kurukshetra whereby while complaint filed by the appellant/complainant against the opposite party has been dismissed.

PUT shortly the facts of the case are that complainant has been insured with the opposite party for a sum of Rs. 1 lac under policy No. 172700213 dated 25.8.2001 which covered medical as well as accident benefits. On 3.9.2001 complainant was pillion rider of motor-cycle being driven by her husband. The said motor-cycle met with an accident at the gate of hospital, Thanesar against the motor-cycle driven by Sri Prem Chand. Due to the impact of the accident, she and her husband fell down and suffered injuries. As the accident occurred on account of negligent driving of motor-cycle by Sh. Prem Chand, an FIR was lodged in Police Station Adarsh, Thanesar on 3.9.2001. The complainant remained under treatment at PGI and had incurred expenses of Rs. 1 lac in this regard. Necessary intimation regarding accident was given to the opposite party and when no action was taken notice was also served upon the opposite party, which brought no response and, thereafter, the present complaint was filed wherein complainant claimed medical and accident benefits under the terms of the policy and Rs. 50,000 as damages on account of harassment. In the written statement filed they pleaded that complainant has not suffered any permanent disability and for that reason she was not entitled for any amount in terms of the policy issued to her.

The District Forum found no substance in the complaint and dismissed the same vide order dated 23.12.2004. It is against this order the present appeal has been filed. Along with appeal, an application seeking condonation of delay of 64 days in filing the appeal has been filed under Section 5 of the Limitation Act (hereinafter referred to as the Act of 1963). It is stated therein that Counsel representing the respondent before the District Forum had fallen ill in the month of 2005, who remained under treatment at Kurukshetra as well as Doctors of Escorts Heart Institute and Research Centre, New Delhi and after by-surgery, he has been advised for rest of 3 months. Under these circumstances Counsel for the complainant could not inform the complainant about the decision of this case and it is only in the month of March 2005, the complainant was informed about the decision rendered by the District Forum, Kurukshetra. Thereafter, the present appeal was filed on 30.3.2005 and under these circumstances the delay deserves to be condoned.

THE learned Counsel representing the appellant has been heard at length. At the time of arguments he has pressed the grounds stated in the application seeking condonation of delay. Manifestly, the prayer for condonation of delay has been sought by the appellant under Section 5 of the Act, 1963 but it has to be decided in terms of the provisions of Section 15 of (hereinafter referred to as the Act) which specifically deals with the condonation of delay. A period of 30 days has been provided for preferring an appeal against the order of the District Forum. The proviso contained therein permits the State Commission to entertain an appeal after the expiry of said period of 30 days, if it is satisfied that there is sufficient cause for not filing the appeal within the prescribed period. The expression ''sufficient cause'' has not been defined in the Act, rightly so, because what would constitute ''sufficient cause'' would vary from facts and circumstances of each case.

COMING to the facts of the present case that it has been stated that Counsel representing the complainant before the District Forum who was suffering from heart disease and fallen sick in the month of January, 2005 and thereafter undergo by-surgery. Thereafter the brief of the case was made available to the appellant only in the month of March 2005. Only affidavit of appellant has been filed in support of the stand taken. No affidavit of Counsel representing her has been placed on record. Even the affidavit of his clerk has not been produced on record. The impugned order was passed on 23.12.2004, while the case of the complainant is that Counsel representing her fallen sick in the month of January 2005. The specific date on which he had fallen sick has not been mentioned in the application as well as affidavit filed by the appellant. The total period of confinement from the specific date of the month of January 2005 till the specific date of March 2005 has not been indicated in the application as well as in the affidavit filed by the appellant. From these documents it is clearly spelt out that Mr. C.M. Madan, Advocate representing the appellant has fallen sick much after that decision was rendered in this complaint on 23.12.2004. Therefore, complainant had ample time to get the copy of the order which was issued on 19.1.2005 as per endorsement of the order itself. Under the circumstances for want of proof of the facts stated in the application it has to be held that appellant has failed to establish sufficient cause in filing the appeal within the statutory period and delay of 64 days stands unexplained on record. On this ground alone appeal deserves to be dismissed. Apart from that on merits we find no force in the appeal. It is definite case of the complainant that accident have taken place on 3.9.2001, as a result of which complainant and her husband suffered injuries. Though she claimed that FIR was lodged with the Police Station, Adarsh, Thanesar but she failed to prove nature of the injuries suffered by her husband in that accident by examining any medical evidence. During the course of trial apart from her affidavit, copy of the legal notice and report under Section 173, Cr.P.C. she has also produced her disability certificate as Annexure P.1. The Medical Officer who had issued the disability certificate have not been examined to support the finding recorded therein. The examination of the certificate issued on 15.9.2004 contains the following finding: "Her total permanent disability is assessed to be 18% (eighteen percent) attributed to limitation of movement of left hip 5% limitation of movement of left knee 5%, limitation of movement of right ankle 5%, washing of 2 thigh muscles 3%."

There is no explanation on record as to why she procured disability certificate on 15.9.2004 whereas the accident in question had taken place on 3.9.2001. Before this certificate could be relied upon it was duty of the complainant to have established that the disabilities stated therein were related to the accident which had taken place on 3.9.2001. In this case hardly any material has been placed on record on the basis of which it could be concluded that above stated disability occurred due to the injuries suffered in the accident which had taken place on 3.9.2001. It is surprising that complainant has not produced the copy of the letter regarding intimation to the opposite party. The legal notice dated 1.9.2002 sent to the opposite party by the Counsel representing the complainant refers to the injuries suffered by the complainant and her husband in the accident which had taken place on 3.9.2001 at about 1.00 p.m. but no details of the injuries have been mentioned therein. She had undergone treatment at PGI, but no document relating to the treatment given at PGI has placed on record. Therefore, the case of the complainant is liable to be rejected on the short ground that she has failed to establish that she had suffered any disability as enumerated in the disability certificate in the accident which had taken place on 3.9.2001. It would be appropriate to notice at this stage relevant Clause 10 of the Insurance policy which reads as under : "10. Accident benefit : If at any time when this policy is in force for the full sum assured the Life Assured, before the expiry of the period for which the premium is payable or before the policy anniversary of which the age nearer birthday of the Life Assured is 70, whichever is earlier, is involved in an accident resulting in either permanent disability as hereinafter defined or death and the same is proved to the satisfaction of the Corporation, the corporation agrees in the case of :

(a) Disability to the Life Assured: (i) to pay in monthly instalments spread over 10 years an additional sum equal to the sum assured under this policy, if the policy becomes a claim before the expiry of the said period of 10 years, the disability benefit instalments which have not fallen due will be paid along. The waiver of all premium shall extinguish all options under this policy except as to such assurance, if any, as exceeds the maximum aggregate limit of Rs. 5,00,000 and which may have been kept in force by continued payment of premiums and the benefits covered by (b) of this clause.

The disability above referred must be disability which is the result of an accident and must be total and permanent and 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 or obtain any wages compensation or profit. Accidental injuries which independently of all other causes and within one hundred twenty days from the happening of such accident result in the irrecoverable loss of the entire sight of both eyes or in the amputation of both hands at or above the wrists, or in the amputation of both feet at or above the ankles, or in the amputation of one hand at or above the wrist and one foot at or above the ankle shall also be deemed to constitute such disability. Immediately after the happening of the disability, full particulars thereof must be given in writing to the office of the Corporation where his policy is serviced together with the then address and whereabouts of the Life Assured and within the 120 days after the happening of the disability there must be given to the servicing office of the Corporation in the manner required by it, proof of disability satisfactory to the Corporation and without any expense to the Corporation, and thereafter similar proof must be given, as and when required by the Corporation of the continuance of such disability. Any Medical Examiner nominated by the Corporation shall be allowed to examine in person the Life Assured in respect of any disability claimed, in such manner and at such times before and/or after the disability is accepted by the Corporation as the Corporation may require. In the event of its being discovered at any time that a claim under this clause has been wrongly admitted, all premiums falling due after the Corporation''s intimation to that effect shall be paid on due dates and further all premiums for which waiver was wrongly claimed and all instalments of additional sum assured which have been paid shall be paid to the Corporation in one lumpsum with interest at such rate as may be prevailing at the time of payment as if no disability had occurred failing which- (1) the benefits available under the policy shall stand reduced as if the policy has been discontinued as on the date from which premiums have been waived or the payment of the first instalment of the additional sum assured, whichever is earlier and (2) The instalments of additional sum assured already paid shall be treated as a debt against the said policy and shall be deducted with interest at such rate as may be prevailing at the time of payment from the proceeds of the policy".

THE above stated terms of the policy clearly specified a period of 120 days for furnishing full particulars to be submitted to the office of Corporation after happening of the disability along with proof of the disability. In this case the compliance of the above stated terms of the policy has not been done because no proof of the disability along with intimation had been sent to the opposite parties is clearly brought out on record. Moreover, in the present case the so-called permanent disability certificate Annexure P1 cannot be termed as total permanent disability which has totally prevented her to do any work, occupation or profession. It is not the case of the complainant that she has suffered other disability detailed above in Clause 10 of the policy. On this account as well her claim deserves rejection. Under the circumstances of the case the complaint of the complainant has rightly been dismissed by the District Forum.

FOR the aforesaid reasons, we find no merit in the appeal and the same is consequently dismissed. Appeal dismissed.