LIC OF INDIA vs SMT. SWAGATA SHAH

The complainant/respondent, who was engaged in the business of food processing, sustained injuries in an accident, while she was cooking in her kitchen on 02.06.2008. She was taken to a hospital in Jalpaiguri and was treated there for 44 days. She claims to have incurred expenditure a m o u n t i n g t o Rs. 3,61,526/- of her treatment till she filed a complaint before the District forum. Since she had obtained two insurance policies, each in the sum of Rs. 1 lakh, and the said policies also covered disablement on account of accidental injury, a claim was lodged by her with the petitioner Corporation. The claim, however, was rejected on the ground that she had not suffered total and permanent disablement. Being aggrieved, she approached the concerned District Forum by way of a complaint.

The complaint was resisted by the petitioner Corporation primarily on the same ground on which the claim had been rejected. It was stated in the reply filed by the Corporation that the complainant had not suffered permanent and total disability, which was a pre-requisite condition for payment under the insurance policies taken by her.

Vide its order dated 30.04.2010, the District Forum directed the petitioner Corporation to pay a sum of Rs. 2 lakhs to the complainant alongwith interest at the rate of 6% per annum and cost of litigation quantified at Rs. 500/-.

Being aggrieved from the order of the District forum, the petitioner Corporation approached the concerned State Commission by way of an appeal. The said appeal having been dismissed vide impugned order dated 20.05.2011, the petitioner Corporation is before this Commission by way of this revision petition.

The insurance policies taken by the complainant, to the extent they are relevant for deciding this petition, read as under:- " 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 even sufficiently do or follow to earn or obtain any wages, compensation or profit. Accidental injuries which independently of all other causes and within 180 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."

It would thus be seen that if the insured suffers an injury within 180 days of the happening of an accident and such an injury results in amputation of both hands at or above the wrists, such an injury shall be deemed to constitute a permanent and total disability, thereby entitling the insured to the benefit of the insurance policy taken by him/her.

The Disability Certificate issued to the complainant clearly shows that on account of the burn injuries sustained by her, she was unable to move both her upper limbs. Though the doctor did not make it clear in the certificate as to whether she can or she cannot travel without assistance of an escort, the benefit of the aforesaid discrepancy in the certificate issued by the Govt. hospital needs to be given to the insured, thereby taking a view that she cannot travel without assistance of an escort. In any case, what is material is that as a result of the burn injuries suffered by her, the complainant was unable to move both her upper limbs i.e. both her hands. Such a disability in my view needs to be treated at par with amputation of both the hands since in either case, the insured is not in a position to use the affected limb. A limb, which cannot be used, is as good as a limb which has been amputated. Therefore, the disability of the complainant, in my view, shall constitute a permanent and total disability as defined in the insurance policies. This is more so considering that the complainant was engaged in a small scale food processing business where she was cooking by hands and therefore it will not be possible for her to use her hands for any purpose including earning her livelihood by cooking meals.

Moreover, exercising its revisional jurisdiction, this Commission will not be justified in interfering with the concurrent findings of fact returned by the fora below unless the same is shown to be perverse. In my view, in the facts and circumstances of the case, it cannot be said that no reasonable person, acting on the basis of the material available before the fora below, could have returned the finding which the said fora returned in this case. Therefore, the aforesaid finding cannot be said to be perverse.

For the reasons stated hereinabove, the revision petition is dismissed with no order as to cost. The amount which the petitioner Corporation had deposited with the District Forum shall be released to the complainant immediately. The balance amount shall be calculated and paid to her within six weeks from today.