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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2759 OF 2013
(Arising out of SLP(C) No. 25991 of 2008)
Sandeep Kumar Chourasia …Appellant
versus
Divisional Manager, the New India
Insurance Company Ltd. and another …Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. This appeal is directed against order dated 14.1.2008 of the National
Consumer Disputes Redressal Commission (for short, ‘the National
Commission’) whereby rejection of the appellant’s claim for compensation
by the Chhattisgarh State Consumer Disputes Redressal Commission (for
short, ‘the State Commission’) was upheld.
3. In July, 1997, Shri P.D. Chourasia (the appellant’s father) took
insurance cover under ‘Janta Gramin Vyaktigat Durghatna Policy’ for
Rs.7,00,000/- in the name of the appellant. The policy covered death,
permanent total disablement, loss of two limbs or two eyes, one limb and
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one eye directly caused by accident.
4. While he was playing outside his house on 22.10.1999, the appellant
fell down and sustained injuries in the right portion of his head and the right
eye. He was initially treated in the Government hospital and then in the
private hospital. Dr. Jaishri Gopinath, Assistant Surgeon, Government
Hospital at Supela, Bhilai issued medical certificate dated 22.11.1999
mentioning therein that on account of injury caused to his right eye, the
appellant suffered total loss of vision in the right eye and severe loss of
hearing in both ears.
Similar certificates were issued by Dr. K.K. Mishra and
Dr. A.K. Verma with little variation in the degree of disability. In October
and November, 2004, the appellant underwent further medical tests and a
surgery was performed to check further deterioration of his eyes.
The
District Medical Board, Durg issued certificate dated 27.10.2005, perusal of
which shows that the appellant had suffered 100% disability in the right eye.
5. The appellant’s father lodged a claim for compensation by asserting
that his son had suffered loss of vision due to accidental fall. After long
correspondence, the respondents rejected the claim on the ground that the
same was not covered by the policy.
The appellant then filed a complaint
through his father for award of compensation of Rs.7,00,000/- with interest
at the rate of 18% to 25% and cost. In the complaint it was pleaded that the
appellant had suffered injury to the right eye and consequential loss of vision
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and hearing in both ears on account of accidental fall.
6. The respondents filed separate written statements to contest the
complaint. They pleaded that the loss of vision and hearing was not caused
due to the accident. According to the respondents, the right eye of the
appellant was inflicted with Phthisis Bulbi and he was hard of hearing since
birth.
7. The appellant’s father Shri P.D. Chourasia filed his affidavit in
support of the claim. On behalf of respondent No.1, Shri Ajit Kumar
(Branch Manager) filed his affidavit. After considering the pleadings of the
parties and affidavits filed on their behalf, the State Commission decided to
call for an expert opinion. Accordingly, a request was sent to the
management of Dr. Bhimrao Ambedkar Memorial Hospital, Raipur to
constitute a Medical Board to examine the appellant. The Medical Board
headed by Dr. A.K.Chandrakar, Professor and Head, Department of
Ophthalmology examined the appellant on 5.8.2005 and submitted a report,
the relevant portion of which is extracted below:
“After examining the complainant and pursing his document,
the opinion of the Medical Board is as follows-
1. Phthisis Bulbi RE is the course of loss vision.
2. The is total loss of vision in RE.
3. The patient had pathological myopia for which Radial
Kanatotomy surgery head been earlier. The loss of vision
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could have been caused by fall while playing.
4. The loss of vision in RE is irreversible.”
8. After receiving the report of the Medical Board, the State Commission
passed order dated 18.5.2006 and dismissed the complaint. The findings
recorded by the State Commission are contained in paragraphs 14 to 16 of
that order, which are reproduced below:
“14. The Commission has referred the complainant to the
Medical Board, the report dated 5.8.05 of which has been
received. The said report discloses that there is no total loss of
vision in the right eye and it has further been stated that there
was Pahological Myopia for which Radial Keratoomy
Surgery had been done earlier and that the loss of vision could
have been caused by fall while playing. However, no definite
opinion regarding loss of vision has been given in the report
of the Medical Board.
15. As reported by Dr. Dani, Phthisis Bulbi is a progressive
disease and was found present on 28.10.99 i.e. almost after a
week of the accident. No material has been produced before
us as to whether the loss of vision was on account of, Phthisis
Bulbi or was a result of the fall. As noted earlier the
complainant has not produced any other documents to show
that the injury to the eye directly resulted due to fall.
16. In the circumstances it is not possible to record a finding
that the loss of vision in the right eye of the complainant was
direct result of fall as alleged by the complainant. Therefore
in our opinion the complainant is not entitled to the benefit
under the policy. Complaint is dismissed.”
9. Feeling aggrieved by the order of the State Commission, the appellant
filed an appeal under Section 21 of the Consumer Protection Act, 1986 but
could not convince the National Commission to entertain his plea for award
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of compensation. The National Commission discarded the certificate of
Dr. Jaishri Gopinath by observing that she is neither an eye or ENT
specialist nor she had filed an affidavit to prove the contents of the
certificate. The National Commission also opined that the statement made
by the appellant about the loss of hearing was falsified by the record of the
maternity hospital, which revealed that the child was hard of hearing since
birth.
10. We have heard learned counsel for the parties and carefully perused
the record.
11. The State Commission heavily relied upon report dated 28.10.1999
prepared by Dani Hospital wherein it was mentioned that the loss of vision
could be attributed to Phthisis Bulbi in the right eye of the appellant. The
State Commission also referred to the report sent by the Medical Board,
which had examined the appellant in August, 2005 and concluded that the
loss of vision has not resulted due to the accidental fall. The National
Commission virtually copied the reasons recorded by the State Commission
and dismissed the appeal filed by the appellant.
12. Unfortunately, both the consumer fora did not bother to carefully go
through the report of the Medical Board constituted in furtherance of the
direction given by the State Commission. In that report, the concerned
doctors opined that the loss of vision could have been caused by fall while
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playing. In their pleadings, respondents had not contested the statement
contained in the complaint, which was duly supported by the affidavit of
Shri P.D. Chourasia, that while playing outside the residence his child had
an accidental fall and the consequential injury to the right eye led to the loss
of vision.
13. The available medical literature shows that Phthisis Bulbi is the endstage anatomic condition of the eye in response to severe ocular disease,infection, inflammation, or trauma. Clinically, it is categorized by a soft strophic eye with disorganization of intraocular structures. Phthisis Bulbi can be caused due to ocular injury, radiation, infection, or diffusion disease.
Initial damage to intraocular structures either from penetrating trauma or inflammation can eventually lead to widespread atrophy and disorganization of the eye – Dictionary of Cell and Molecular Biology and Radiology of the Orbit and Visual Pathways, by Jonathan J. Dutton, Prof. of Ophthalmology,
University of North Carolina at Chepal Hill, USA.
14. From what has been mentioned above,
it is clear that the State
Commission and the National Commission committed serious error by dismissing the complaint of the appellant by assuming that his right eye was afflicted with the disease of Phthisis Bulbi and the same was the cause of loss of vision.
They completely ignored the report of the Medical Board
which had opined that Phthisis Bulbi can be caused due to injury caused due
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to fall. Before the State Commission, sufficient evidence was produced by the appellant to prove that he had an accidental fall on 22.10.1999 and as a result of that, right side of his head and the right eye were injured.
Therefore, there is no escape from the conclusion that the appellant’s case was covered by the policy issued by respondent No.1 and the State Commission and the National Commission committed serious error by rejecting his claim.
15. In the result, the appeal is allowed, the impugned order as also the one
passed by the State Commission dismissing the complaint filed by the
appellant are set aside and the respondents are directed to pay compensation
of Rs.7,00,000/- to the appellant with interest at the rate of 6% per annum
from the date of filing the complaint.
16. The respondents are directed to pay the aforesaid amount to the
appellant within a period of eight months from the date of receipt/production
of copy of this judgment.
....….………………….…J.
[G.S. SINGHVI]
....….………………….…J.
[H.L. GOKHALE]
New Delhi,
April 02, 2013.
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