National Insurance Co. Limited vs Narain Singh

THIS is an appeal against the judgment and order dated 21.11.1996 passed by District Consumer Forum, Etah in Complaint Case No. 333 of 1996.

THE facts of the case stated in brief are that the complainant took a Personal Accident Policy for a sum of Rs. 1,00,000/- on 12.7.1993 and paid premium. A cover note was also issued on the same day. It is further alleged that on 13.7.1993 at about 4.00 p.m. in the evening, the complainant''s left eye got damaged due to handle of Green Fodder Cutting Machine. THE complainant got the treatment made at Agra, Delhi and Sitapur and also lodged a complaint on 28.7.1993 but his eye sight could not be restored. He has spent a sum of Rs. 1,15,000/- on the treatment of his eye. THE complainant informed the Insurance Company and claimed the amount of Rs. 1,50,000/-. Even inspite of reminder dated 15.7.1995 nothing was done by the Insurance Company hence the complaint has been filed. A notice was sent to the opposite party by registered post but none of them appeared and did not file any statement nor applied for time to file the written statement hence the proceedings proceeded ex-parte.

The learned District Forum, after considering the case of the complainant, allowed the amount of Rs. 30,000/- to the complainant alongwith 12% per annum interest.

AGGRIEVED against the order of the learned District Forum, the appellant has come in appeal and has challenged the correctness of the order passed by the learned District Forum. We have heard the learned Counsel for the parties. The learned Counsel for the appellant has argued that the proceedings remained ex-parte against the opposite party. According to the learned Counsel, no notice was issued to the opposite party No. 2 which is the Regional Office and the Insurance Company has to seek instructions from the Divisional Office for filing the written statement.

A perusal of the judgment of the learned District Forum will go to show that the registered letter was sent to both the opposite parties and they were not returned as unserved, hence the service was presumed. The Insurance Company had applied before the District Forum for setting aside the ex-parte judgment. This application was moved on 19.12.1996. In para 3, it has been alleged that in the Divisional Office, the Divisional Manager was on leave on account of personal work, hence no Vakalatnama could be issued in favour of any Advocate, in consequence of which no written statement could be filed. It has further been alleged that the notice was not sent to the opposite party No. 2. It is wrong to say that no notice was sent to the opposite party No. 2 because there is mention in the judgment of the learned District Forum that the notice was sent to the opposite party No. 2 also by registered post. It has not been mentioned by the Insurance Company as to from which date to which date the Divisional Manager at Aligarh was on leave and whether there is no authorisation in favour of any other person also to sign the Vakalatnama, if the Divisional Manager is absent for some reason. It cannot be presumed that if the Divisional Manager is on leave then no work shall be done by any other person. The authorisation is generally there with other officials to look-after the work of the Divisional Manager in his absence. Similar is the case with the grounds of appeal. In the grounds of appeal, it has been mentioned in para 7 that the notice was sent only to the opposite party No. 1, which was sent to the Divisional Office, Aligarh for seeking permission to contest the case. It has not been mentioned on which date the notice was received by the opposite party No. 1 and on which date it was sent to the Divisional Office, Aligarh. It has already been mentioned that no dates have been given during which the Divisional Manager remained absent from duty. Unless these facts were sworn on affidavit no reliance can be placed. It was very much necessary for the appellant who have given the dates on each and every case so that the District Forum or the State Commission could have come to a definite conclusion whether the allegations made by the appellant are correct or not. It has been further argued by the learned Counsel for the appellant that the accident took place on the very next day of taking the insurance policy which shows that there is some manipulations or sinister motive on behalf of the complainant. If there is proximity of incidence to the taking of the insurance policy then it cannot be said that the incident did not happen. It is for the Insurance Company to disprove the fact which has been proved by the complainant that the accident took place on 13.7.1993 that it did not take place on that date but took place on some other date. Even if the complainant has taken Personal Accident Policy for the first time then it will not mean that the claim put forward by the complainant is a doubtful one. Reference has been made by the learned Counsel for the appellant to the evidence filed by it. We may now peruse that evidence. The copy of the prescription of Dr. Pahwa Ophthalmic Centre, Agra dated 13.7.1993 is on record. It has been argued by the learned Counsel that previously the date was 13.6.1993 but later-on it was converted to 13.7.1993, hence this creats a doubt that the accident took place on 13.7.1993 or 13.6.1993. A letter has been written on 8.6.1994 by the Insurance Company to Dr. Pahwa regarding the cutting of date of prescription. A note to following effect is made on it. "Unfortunately no out-door record is available with him". This letter was presented by Investigator from the side of the Insurance Company to Dr. Pahwa on which this note has been made, therefore, this note does not cast any doubt on the prescription which has been issued. On a close scrutiny of prescription issued by the Dr. Pahwa it will be clear that the date on the bottom of the prescription is also 13.7.1993. This prescription has been written in continuation and the date has been correctly mentioned as 13.7.1993. It appears that on the top of the prescription by mistake instead of 7 the figure 6 was mentioned which was later-on over-written and corrected. On the back of the same prescription the dates have also been mentioned as 13.7.1993. It has been argued that on the back side of the prescription, on second visit the complainant was examined on 13.7.1993 and on the first date on which the patient was examined was 13.6.1993 but a close scrutiny of this prescription does not show that the complainant was first examined on 13.6.1993 and thereafter on 13.7.1993 by the doctor. It is not possible for a doctor to call his patient one month after even though the injury was so serious which ultimately resulted in the total loss of the vision of the eye. The other prescription have not been filed on record by the Insurance Company, otherwise the picture would have been cleared.

A reliance has been placed on the report of the Investigator dated 27.6.1993 in which the Investigator has mentioned that he has taken the statement of number of persons but they have given only one-sided view. All these persons have stated that the incident happened on 13.7.1993, therefore, this remark has been passed by the Investigator. The Investigator has not filed the affidavit of any other person to show that the accident took place on 13.6.1993 and not on 13.7.1993. It has further been mentioned in this report that he contacted Dr. J.M. Pahwa on 8.6.1994 and produced the treatment chart regarding the actual date of treatment. According to him, Dr. Pahwa has clearly stated in writing that it appears to be cutting of date on the prescription which has been done as 13.7.1993. He has further stated in discussion that Dr. Pahwa has stated that actually Sri Narain Singh got injury before 13.7.1993 and took the second visit on 13.7.1993. This statement of Investigator deserves to be rejected out-right. When he had personally contacted Dr. Pahwa at Agra on 8.6.1994 and Dr. Pahwa had made a note about the over-writing then he should have also written that the injury was sustained by the complainant some time before 13.7.1993 and his second visit was on 13.7.1993. This is a complete lie and false report has been made by the Surveyor. No reliance can be placed on this report. Dr. Pahwa could have easily stated that the complainant visited for the first time on 13.6.1993 and on second time on 13.7.1993 but no such statement has been given by Dr. Pahwa on application dated 8.6.1994. If this was the fact then an affidavit of Dr. Pahwa should have been filed by the Insurance Company in order to prove his case that the complainant did not suffer injury on 13.7.1993. Thus we find that the Insurance Company has taken a false plea that the injury was sustained not on 13.7.1993 but some time before it.

KEEPING in view this fact, we find that the complainant suffered injury on 13.7.1993 and not before that, hence the complainant is entitled to claim the amount from the Insurance Company. The repudiation made by the Insurance Company was against the facts on record and has to be rejected. Thus, we find that the order passed by the learned District Forum is correct and requires no interference. The appeal is liable to be dismissed. Order The appeal is dismissed. The judgment and order of the learned District Forum are confirmed. The appellant shall pay a cost of Rs. 2,000/- of this appeal to the complainant. Let compliance of this order be made within a period of two months from the date of this order. Let copy be made available to the parties as per rules. Appeal dismissed.