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Judgment
THE challenge in this appeal is to the order of the learned District Forum, Mandi, dated 26.2.1996/ whereby the complaint of the complainant/ appellant (hereinafter to be referred to as the complainant) has been dismissed.
THE relevant facts stated in the pleadings are that the complainant had insured himself with the respondent/opposite party (hereinafter to be referred to as the Life Insurance Corporation) vide Policy No. 150307483 covering all risk including accidents, sustaining of disability of permanent nature, etc. THE complainant is, admittedly, a driver by profession and was driving the Truck No. HP-34-2269 and on 9.9.1994, he went with the Truck to a place called Manimajra near Chandigarh to get his truck repaired. At the workshop/shop when the truck was to be repaired, welding work was being done by one Shri Madan Lal. In the workship while the complainant was standing by the side of the truck, due to the Gas welding work being done, the Gas welding tank burst as a result of which the complainant and some other persons were seriously injured. THE right hand of the complainant was seriously injured and after this incident, the complainant was taken to P.G.I. Chandigarh for treatment, where his right hand was amputated and as such the complainant has been rendered physically disabled permanently. THE Life Insurance Corporation has repudiated the insurance claim on the ground that the complainant has not suffered any permanent disability. According to them, it is only one hand that has been amputated and in order to constitute total and permanent disability in terms of the insurance policy, not only one hand should have been amputated but also one foot at or above the ankle. THErefore, this case is not covered under the terms of the insurance policy. We have heard the learned Counsels for the parties, Mr. Mahesh Chopra, Advocate for the appellant and Mr. S. Dixit, Advocate for the respondent-Life Insurance Corporation and also seen the record.
In order to appreciate the rival contentions of the parties, it is necessary to reproduce the relevant provisions in this context. Clause 10, Accident Benefit (a) Disability to the Life Assured provides that : "The disability above referred to 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 independentlyof all other causes and within ninety 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 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."
Under first part of the ''Accident Benefit'' clause, in order to succeed and to get benefit of such clause, the Assured has to establish : (i) the disability is as a result of accident; (ii) the disability is total and permanent; and (iii) on account of such disability, the Assured cannot do any work or adopt any occupation, profession which he can sufficiently do or follow and cannot gainfully be employed to earn his livelihood.
SECOND part of the Accident Benefit Clause deals with certain disabilities resulting in 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 ankles, or in the amputation of one hand at or above the wrist and one foot at or above the ankle. The injuries referred to in the second part have been constituted as disabilities under the deeming provisions. In other words, the existence of injuries specified in second part of the clause would by themselves, without anything more be sufficient for holding that the resulting disability is such as would entitle the assured to the benefit of accident clause. There is no dispute that as a result of the accident, serious injury was caused to the complainant and as a result of which the right hand of the complainant was amputated. However, Mr. Dixit, learned Counsel for the Life Insurance Corporation, by relying upon the second part of Accident Benefit Clause, endeavours to argue that in order to constitute disability to enable the complainant to have the benefit of such Clause, not only one hand should have been amputated but also one foot at or above the ankle, as according to him, total and permanent disability is constituted in the amputation of one hand at or above the wrist and one foot at or above the ankle. This contention .is not only devoid of force but fallacious. No doubt the case of the complainant does not come within the purview of second part of the Accident Benefit Clause but certainly his case is covered under the first part of this provision.
THERE is no dispute, as already stated, that the complainant is by occupation or profession a driver and that when he had gone to get his vehicle repaired at Manimajra, due to Gas welding work being done at the shop by one Mr. Madan Lal, Gas welding tank burst and he was seriously injured and his right hand was completely amputated. It goes without saying that amputation of right hand has incapacitated the complainant for all times to come in his profession/occupation as a driver and that he cannot adopt such profession or occupation to earn his livelihood. It is not further in dispute that the complainant has taken insurance policy with Accident Benefit and the aforementioned Clause-10 governs his case. The driver, who was present before the Commission, was specifically interrogated by the Commission about his education and whether he can adopt any other occupation or profession to earn his livelihood. The Commission was told by him that he is hardly educated and that he is entirely dependent upon a small land holding in his village which now he himself cannot cultivate because of losing his one arm and he cannot think of any occupation or profession from which he can earn his livelihood. In this background, we have no hesitation to hold that the case is completely covered under the first part of Accident Benefit Clause that he has suffered disability as a result of an accident and the disability is total and permanent and that he cannot be gainfully employed or adopt any profession or occupation to earn his livelihood. At this stage, we notice that on the record, the Life Insurance Corporation has placed a document/certificate by a Doctor at page-15 of the file, whereby the disability has been assessed as permanent disability and the percentage of disability is 80%. The disability judged by the Doctor refers to the general disability and has no nexus with the work, vocation or occupation of the Assured in which he can be gainfully employed to earn his livelihood. This certificate, therefore, cannot be entirely relied upon although the certificate itself talks of permanent disability to 80%. The test which should be applied by the Courts while invoking the Accident Benefit Clause should be that disability on account of the accident should be such as a result of which the assured cannot be gainfully employed to earn his livelihood. Having applied the above yardstick, we have already held that the complainant is entitled to the benefit of the first part of the Accident Benefit Clause. We are fortified in taking this view in Bhartiya Jeewan Bima Nigam v. Pratap Singh, III (1995) CPJ 10, decided by Madhya Pradesh State Commission on 24.3.1995, whereby in similar circumstances, it has been held that the case was covered by the first part of the Accident Benefit Clause. The relevant clause of the insurance policy in that case is pari materia with the clause under consideration and that was also a case of a truck driver who had lost his right forearm due to the accident. Paragraphs 5 & 6 of the order in this case may be reproduced below : "5. The aforesaid Accident Benefit Clause, in our opinion, cannot be construed to mean that only those accidental injuries which are specified in the latter part of the clause, can constitute disability. The latter part of the clause is a deeming provision. It lays down that existence of the injuries specified in the latter part of the clause would by themselves, without anything more, be sufficient for holding that the resulting disability is such as would entitle the assured to the benefit of the accident clause. In cases not covered by injuries, specified in the latter part of the said clause, in order to entitle an assured to the benefit of the Accident Benefit Clause, it will have to be established that; (1) me disability which is the result of an accident is total and permanent, and (2) that the disability is such that as a result of that disability the assured cannot be gainfully employed to earn his livelihood. 6. In the instant case it has been found by the District Forum on the basis of the evidence on record that the complainant was a right hander, was educated only upto the seventh standard, that he was prior to the accident earning his livelihood by working as a truck driver, that as a result of amputation of his right forearm he was unable to write or to work as a driver, that he was not possessed of means to start any business, that he was unable to seek any gainful employment and that as a result of the disability caused by the accident he would not be able to earn his livelihood. All these findings are based on the material on record and were not assailed before us. The only contention advanced before us was that this was not a case of amputation of both the hands or of one hand and one foot and hence was outside the purview of the Accident Benefit Clause. This contention as we have observed, fails to take into account the effect of the first part of the Accident Benefit Clause. Though the case of the complainant was covered by the earlier part of the Accident Benefit Clause, the appellant failed to apply its mind to that aspect of the matter. Under the circumstances it must be held that the repudiation by the appellant of the claim made by the complainant was wrongful and the District Forum was justified in upholding that claim. We see no cogent reason to interfere with the order passed by the District Forum."
IN the light of what is discussed above, we allow the appeal and set aside the order of the District Forum and direct the Life INsurance Corporation-respondent to pay the assured amount to the complainant by considering the disability caused to the complainant as total and permanent in terms of the policy from the date of accident i.e. with effect from 9.9.1994. The complainant shall also be entitled to interest on the assured amount @ 18% per annum from the date of accident till actual payment. The cost of Rs. 1,000/- is also awarded.
THERE is no order as to costs in the appeal. Complaint allowed with costs.