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Judgment
Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), is to order dated 25.6.2009 in First Appeal No. 652 of 2006 passed by State Consumer Disputes Redressal Commission, Bihar, Patna. By its impugned order, the State Commission modified the order of the District Forum and enhanced the amount to be paid by the Appellant/Insurance Company from 44,283.36 to 2,00,000/- together with costs of 5,000/- to be paid within 45 days from the date of receipt of the order, failing which the amount would attract an interest of 9% per annum.
The brief facts as set out in the complaint are that the Complainant, a Bank Accountant, while coming out of his office, on 10.6.1999 at about 4.30 P.M., slipped from the staircase and sustained injury in his right leg. His colleague admitted him in Dr. M.K. Chaudhary''s clinic where a surgery was performed on his ankle. The Complainant pleaded that on account of the injury sustained, he incurred heavy expenditure on the surgical procedure and medicines. It was averred by the Complainant that the Medical Board certified that he was partially and permanently disabled due to stiffness of right ankle on account of fracture which resulted from the injury. The Complainant stated that he was insured by Janta Personal Accident Insurance Policy covering the period 17.3.1998 to 16.3.2010; for a sum of 10,00,000/- in case of total disablement/permanent disability. The Complainant filed a claim with the Insurance Company which was repudiated vide their letter dated 20.1.2000 on the ground that the Complainant had failed to fulfil Condition No. 3 of the terms of the Policy. Hence, the complaint seeking direction to the Insurance Company to pay an amount of 4,75,000/- together with costs of 25,000/-.
The Respondent/Opposite Party filed its written version and pleaded that the Complainant''s claim was repudiated as it does not fall within the purview of condition-C of Janta Personal Accident Insurance Policy, which reads as follows: "If such injury within six calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of sight of one eye or total and irrecoverable loss of use of hand or foot. Fifty percent of the capital sum insured stated in the schedule hereto".
The Respondent averred that the injury on the right ankle is temporary and partial and does not come under the definition of ''permanent disablement''. It was further pleaded by the Respondent/Opposite Party that the claim was repudiated only after a detailed discussion with Dr. M.K. Choudhary and also on the basis of the opinion got from Dr. Sahdeo Sah of J.L.N. Medical College and Hospital, Bhagalpur. It is averred that their repudiation is justified and therefore, there is no deficiency of service on their behalf.
The District Forum based on the evidence adduced, partly allowed the complaint and directed the Insurance Company to pay an amount of 44,283.36/- towards medical expenses, with interest @ 9% per annum from the date of filing of the complaint till the date of realisation. No costs were awarded.
Aggrieved by this order, the Respondent/Insurance Company preferred an Appeal before the State Commission. The State Commission based on the Medical Certificate observed that the disability was ''partial & permanent'', because of which, the Complainant could walk only with the help of crutches. The State Commission based their observation on the Workmen''s Compensation Act, 1923 wherein the percentage of loss of earnings by such an injury is stated to be 20%, and awarded 2,00,000/- compensation i.e. 20% of the sum assured.
Dis-satisfied with the said Order, the Insurance Company preferred this Revision Petition.
One of the main contentions of the Petitioner Insurance Company is that the Hon''ble State Commission exceeded its jurisdiction in enhancing the amount awarded by the Hon''ble District Forum from 44,283/- (payable with interest @9% per annum from the date of institution of the case till realization) to a compensation of 2,00,000/- (alongwith 5,000/- as litigation cost - payable with interest @ 9% from the date of order of the State Commission), since the Respondent/Complainant did not come in appeal to the State Commission and that this enhancement of compensation was awarded in an appeal preferred by the Petitioner Insurance Company.
The learned counsel for the Respondent/Complainant relied on the decision of the Hon''ble Supreme Court in State of Punjab and Others vs. Bakshish Singh (1998) 8 SCC 222 , in which the Apex Court made a reference to the provision under Section 107(1)(a) read with Order 41 Rule 33 of the Code of Civil Procedure,1908. The Apex Court has observed as follows: "Order XLI - Appeals from original decrees 33. Power of Court of Appeal. - The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, (emphasis supplied) and may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order." 8. This provision gives very wide power to the appellate court to do complete justice between the parties and enables it to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any appeal or cross-objections (emphasis supplied). 9???
The power of the appellate court are also indicated in Section 107 of the Code of Civil Procedure which provides that the appellate court shall have the powers as are conferred on the original court. If the trial court could dispose of a case finally the appellate court could also by virtue of Clause (a) of sub-section (1) of Section 107 determine a case finally?..". 10. The power of the appellate court in similar lines has been affirmed by the Hon''ble Supreme Court in a catena of other judgments including Delhi Electricity Supply Undertaking vs. Basanti Devi and Another, 1999 Supp (3) 219 and Mahant Dhangir vs. Madan Mohan 1987 Supp. (SCC) 528.
This Commission in United India Insurance Company Limited vs. M/s. Mohan Lal & Sons reported in I (1992) CPJ 132 (NC) held as follows: "Merely because the complainant due to ignorance has failed to make a specific prayer for a relief in his petition will be no bar to the consumer forums taking cognizance of the same suo motu. The Consumer forums have to protect the interest of consumers and would be within their rights if any deficiency in service is noticed from the facts disclosed in the complaint sent by them but which the consumer has failed to formulate and articulate in the complaint.
In this regard the principle laid down by Supreme Court in the case of Rajesh & Others vs. Rajbir & Others (2013 U9 SCC 54 ) should be taken into consideration. "Compensation which appears to be just has to be assessed and awarded by the claim tribunal.The Court has a duty, irrespective of the claim made in the application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary ignoring the claim made in the application for compensation".
The Hon''ble Apex Court in Kunal Saha vs. Dr. Sukumar Mukherjee & Ors. reported in Civil Appeal No. 2866 of 2012-(2014) 1 SCC 384, while discussing the quantum of compensation to be awarded, referred to the following Judgments: "g) In Laxman @ Laxaman Mourya Vs. Divisional Manager, Oriental Insurance Co. Ltd. & Anr.), this Court awarded more compensation than what was claimed by the claimant after making the following categorical observations:- "In the absence of any bar in the Act, the Tribunal and for that reason, any competent court, is entitled to award higher compensation to the victim of an accident". h) In Ibrahim Vs. Raju & Ors., this Court awarded double the compensation sought for by the complainant after discussion of host of previous judgments. 84. In view of the aforesaid decisions of this Court referred to supra, wherein this Court has awarded ''just compensation'' more than what was claimed by the claimants initially and therefore, the contention urged by learned senior counsel and other counsel on behalf of the appellant-doctors and the AMRI Hospital that the additional claim made by the claimant was rightly not considered by the National Commission for the reason that the same is not supported by pleadings by filing an application to amend the same regarding the quantum of compensation and the same could not have been amended as it is barred by the limitation provided under Section 23 of the Consumer Protection Act, 1986 and the claimant is also not entitled to seek enhanced compensation in view of Order II Rule 2 of the CPC as he had restricted his claim at 77 ,07,45,000/-, is not sustainable in law. The claimant has appropriately placed reliance upon the decisions of this Court in justification of his additional claim and the finding of fact on the basis of which the National Commission rejected the claim is based on untenable reasons. We have to reject the contention urged by the learned senior counsel and other counsel on behalf of the appellant-doctors and the AMRI Hospital as it is wholly untenable in law and is contrary to the aforesaid decisions of this Court referred to supra. We have to accept the claim of the claimant as it is supported by the decisions of this Court and the same is well founded in law. It is the duty of the Tribunals, Commissions and the Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case for awarding just and reasonable compensation.
In the instant case the State Commission did not award compensation beyond what was prayed for. It enhanced the amount of compensation payable to the Complainant in an Appeal preferred by the Insurance Company. From the aforesaid order of the Hon''ble Supreme Court and from a reading of the provisions of Section 107(1)(a) read with Order 41 Rule 33 of the CPC, it is quite evident that the appellate court has complete power to do justice between the parties and it has power to pass such decree or order as ought to have been passed or as the nature of the case required notwithstanding that the party in whose favour the power is sought to be exercised has not preferred any appeal.
Now we address ourselves to the issue whether the Complainant is entitled to the claim sought for in the complaint.
The facts not in dispute are that the Complainant sustained an injury to his right ankle which has been certified by Dr. M.K. Chaudhary vide certificate dated 18.8.1999 stating that the insured had sustained Trimalleolar fracture of the right ankle, which needs prolonged physiotherapy and use of crutches. It is an admitted fact that the Complainant has taken Janta Personal Accident Insurance Policy covering the period from 17.3.1998 to 16.3.2010. The claim made by the Complainant for the assured amount was repudiated by the Petitioner herein vide their letter dated 20.1.2000 on the ground that the insured did not comply with condition No. 3 of the Policy. The learned counsel for the Petitioner submitted before us that "Condition No. 3" is a typographical error and that it should be construed as condition (C) of the Policy which reads as follows: "If such injury within six calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of sight of one eye or total and irrecoverable loss of use of hand or foot. Fifty percent of the capital sum insured stated in the schedule hereto".
The learned counsel for the Petitioner/Insurance Company relied on the judgment of this Commission in Jasbir Singh vs. New India Assurance Co. Ltd. in F.A. No. 463 of 2003 in which this Commission held that the injury as per the report of the Board of Doctors led to the disability to the extent of 71% and thereby held that the Complainant is not entitled to 50% of the capital sum assured in the schedule.
The learned counsel for the Petitioner also relied on the judgment of this Commission reported in III(2012) CPJ 656 (NC), in Dinakar Babasaheb Tandale vs. New India Assurance Co. Ltd., in which this Commission observed that the Complainant is not entitled to claim any policy amount as per Clauses ''B'' and ''C'' of Janta Personal Accident Insurance Policy as the Complainants suffered only 25% disability as per the Medical Report.
The learned counsel for the Petitioner also relied on the judgment of the Apex Court in Suraj Mal Ram Niwas Oil Mills Pvt. Ltd. vs. vs. United India Insurance Co. Pvt. Ltd. & Anr. In (2010) CPJ 38 SC , in which the Hon''ble Supreme Court, inter alia, observed that the terms of contract of insurance have to be strictly construed and no expenditure can be made on the ground of equity.
We agree with the arguments of the learned counsel for the Petitioner that the terms of the contract have to be strictly construed in the truest sense. Further, the afore-mentioned judgments justify the repudiation on the ground that percentage of disability was 71% and 25% respectively. Firstly, a reading of the Policy extract filed by the Insurance Company herein does not discuss the ''Percentage of Disability'' anywhere in Condition ''C''. Secondly, the facts in the afore-mentioned cases are different from the instant case as the Medical Board in this case has clearly stipulated that the insured suffered from ''partial and permanent disability'' of the use of the right foot which has resulted in a permanent ''limp'' and hence it can be safely concluded that the insured suffered from irrecoverable loss of use of hand or foot as stipulated in condition ''C'' of the Policy.
A brief perusal of the Medical Board Certificate would give us a better understanding: "OFFICE OF CIVIL SURGEON AND CHIEF MEDICAL
OFFICER
BHAGALPUR
Medical Board for handicapped
Dated:
Name of Candidate : Pawan Kumar Pandey Father''s Name : Pran Mohan Pandey Address : Village & P.O. Baijani, Distt. Bhagalpur Date of Birth : 3.01.60 Mark of Identification : Scar Mark on upper part of abdomen Nature of disability : Visual Disabled partially and permanently Loonr note due to stiffness of (R) ankle Speech and hearing resulting into limp (due to fracture Mental of ankle -Trimalleolar fracture) Categories
Sd/- Signature of Candidate Sd/- Sd/- Member Chairman Medical Board Medical Board Bhagalpur Bhagalpur
"TRUE COPY"
The aforementioned Medical Certificate given by the Chairman and Member of the Medical Board, Government Hospital, Bhagalpur clearly stipulates that the insured is disabled ''partially and permanently'' due to stiffness of right ankle resulting into ''limp'' due to fracture of ankle - Trimalleolar fracture. Therefore, it cannot be disputed that the insured had suffered partial and permanent disability.
It is pertinent to note that the aforesaid clause talks of total and irrecoverable loss of USE OF A HAND OR A FOOT , and not of a total and irrecoverable loss of a hand or a foot- meaning thereby that even if a hand or a foot is only partially injured or damaged but if because of such partial injury or damage to the limb, if its use is totally and permanently impaired then the claim falls within this permissible indemnity clause.
It has been rightly held by the State Commission in its order as follows: "In fact such certificate issued by a medical board consisting of civil surgeon cum C.M.O. of the District two professors of J N L Medical College was in the nature of a public document and is itself admissible in evidence. It was for the insurance company either to lead expert medical opinion to contradict that injury did not cause permanent disablement or to make request before the Learned DCF to call the doctors for cross-examination. But neither any petition was filed nor in ten years appellant has been able to procure any expert opinion to contradict the claim of complainant".
In relation to the nature of injury and the loss of the use of the foot of the Respondent/Claimant, it is also pertinent to note that Chapter I of the Employees State Insurance Act, 1948 states that "if injury which is permanent partial disablement and renders employee incapable of performing all work which he was doing at the time of accident, it may be treated as permanent total disablement ".
In view of the afore-mentioned reasons, we do not see any jurisdictional error or infirmity in the order of the State Commission and hence, this Revision Petition must fail. It is dismissed accordingly. No order as to costs.