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2003 DIGILAW 1010 (PAT)

Raju Vishwakarma v. Union Of India And Others

2003-09-15

AFTAB ALAM

body2003
Judgment 1. The petitioner is a male aged about 35 years. He lost one of his limbs in motor cycle accident. His claim of accident benefit was rejected by the Life Insurance Corporation of India (hereinafter referred to as the Corporation) on the ground that the loss suffered by him was not covered by the policy. 2. The petitioner is evidently a poor person without means or resources. He gave his brief to a lawyer who is so simple that in the writ petition, instead of enclosing the policy document of the petitioner he enclosed his own Insurance Policy taken from some other Insurance Company. This was to show to the court that the other Insurance Company gave to the assured a better deal and the Corporation should also pay compensation to the petitioner as the other company, under some other Insurance Scheme. The writ petition was also drafted very poorly and it contained very little facts of any relevance. In those circumstances the court asked Mr. Naveen Sinha, Advocate to appear in this case as amicus curiae. Mr. Chansi Roy, Advocate who is the counsel for the petitioner was advised to assist Mr. Sinha in bringing on record the relevant facts. I am happy to record that Mr. Naveen Sinha gave valuable assistance to the court in this case and with his help an amendment petition (IA No. 2177 of 2003) was filed on behalf of the petitioner, bringing on record some relevant facts and also the policy document of the petitioner (Annexure 9). On behalf of the Corporation a counter affidavit and a supplementary counter affidavit have been filed. Though the record of the case cannot yet be said to be comprehensive, sufficient materials have come before the court for a proper adjudication on the issue in dispute. 3. The petitioner took a twenty years money back policy (bearing no. 511123168) for a sum of Rs. 75,000/- with accident benefit. The policy was effective from 28.1.1997 and it was to remain valid till 28.2.2017. On 5.10.1999 while the petitioner was going on motor cycle he was hit by a truck bearing registration no. BR-1F-2909 as a result of which he received grievous injuries. He was admitted to the Patna Medical College Hospital where his left leg had to be amputated. The policy was effective from 28.1.1997 and it was to remain valid till 28.2.2017. On 5.10.1999 while the petitioner was going on motor cycle he was hit by a truck bearing registration no. BR-1F-2909 as a result of which he received grievous injuries. He was admitted to the Patna Medical College Hospital where his left leg had to be amputated. A report, dated 28.4.2003 of the Medical Board for Handicapped from the office of the Civil Surgeon-cum-Chief Medical Officer, Patna is produced before the court which has a photograph of the petitioner affixed to it. In the photograph the petitioner is shown sitting on an armless chair; he is wearing a sleeveless vest and under-pants. From the photograph it appears that his left leg was amputated about 6" above the knee. According to the petitioner, his loss of limb was directly the result of the accident that took place on 5.10.1999 and the amputation was done within a few days of the accident. In regard to the accident his fardebayan (Annexure 2) was recorded by the Officer Incharge, Bihta P.S. at 8 P.M. on 5.10.1999 at referal hospital, Bihta where he was taken immediately after the accident. In the fardebeyan he stated that the accident was caused due to over-speeding and rash and negligent driving by the driver of the truck. On the basis of the fardebayan a formal F.I.R. was drawn up (Annexure 10) giving rise to Bihta P.S. Case No. 244 of 1999 against the driver (unknown) of truck no. BR-1G-2909. It is stated by the petitioner that at the time of the accident he had a valid driving licence (Annexure 11). It is also not in dispute that on 5.10.1999 when the accident took place and when a few days later the leg of the petitioner was amputated, the policy was subsisting and the premium had been paid upto-date. 4. The petitioner made a claim for accident benefit in terms of clause 10 of the Policy but the Corporation rejected it on the ground that loss of one leg was not covered by the terms of the policy. Before this court also the Corporation has taken the stand that loss of one leg was not covered by the definition of disability and hence, the petitioner was not entitled to claim accident benefit under clause 10 of the policy. 5. Before this court also the Corporation has taken the stand that loss of one leg was not covered by the definition of disability and hence, the petitioner was not entitled to claim accident benefit under clause 10 of the policy. 5. The whole dispute thus turns on the correct and true meaning of the word disability for the purpose of accident benefit under clause 10 of the policy. What is disability ? whether the loss of one leg, six inches above the knee, which an ordinary person will accept without hesitation as disability and which even from a medical point of view is described as locometer handicap of severe (85%) category, would fail to qualify as disability under the special definition given by the Corporation? At this stage it is necessary to examine clause 10 of the policy which in so far as relevant for the present is reproduced below : 10. Accident benefit : If at any time when the policy is in force the full sum assured, the Life Assured, before the expiry of the period for which the premium is payable or before the policy anniversary on which the age nearer birthday of the Life Assured is 70 whichever is earlier, is involved in an accident resulting in either permanent disability as hereinafter defined or death and the same is proved to the satisfaction of the Corporation, the Corporation agrees in the case of : (a) Disability to the Life Assured : x x x x x x "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 independently of 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. "x x x x x x . "x x x x x x . "x x x x x x . "(b) Death of the Life Assured : x x x x x." 6. Mr. Umesh Pd. Singh, Senior Advocate appearing for the Corporation tried to present the provision in a rigid and literal way. Mr. Singh submitted that the accident benefit could be claimed only on suffering disability within the meaning of clause 10 of the policy, that is to say, the disability caused by the accident must be total and permanent and must leave the assured person, for ever completely unable to take up any work, occupation or profession and there by render him, for all times, totally incapable of earning anything for his livelihood. He further submitted that what constituted disability was plainly described as (i) irrecoverable and complete loss of vision of both eyes, (ii) amputation of both hands at or above the wrists, (iii) amputation of both feet at or above the ankles, and (iv) amputation of one hand at or above the wrist and one foot at or above the ankle. He emphasised that in the last category both a hand and a foot must be amputated and amputation of only one of the legs even though at a higher point (6" above the knee in the case of the petitioner) would not make it a case of disability within the meaning of clause 10 of the policy. He contended that the provision simply meant what was stated therein and any accidental injury or loss, howsoever grievous, unless satisfied the. stringent requirements of the provision and/or falling in any of the provision and/or falling in any of the four categories enumerated in it would not constitute disability and hence, would not form the basis of an accident benefit claim. Mr. Singh also invited my attention to certain internal circulars and guide-lines (Annexures B and B/1) in which what is stated in clause 10 of the policy is said in slightly expanded form but using practically the same words and expressions. 7. On the other hand, Mr. Naveen Sinha submitted that it would be a grave error to read the definition of disability as given in clause 10 of the policy in a literal sense. He submitted that there was sufficient indication in the provision itself that the definition was not to be construed in any straight-jacket or inflexible manner. 7. On the other hand, Mr. Naveen Sinha submitted that it would be a grave error to read the definition of disability as given in clause 10 of the policy in a literal sense. He submitted that there was sufficient indication in the provision itself that the definition was not to be construed in any straight-jacket or inflexible manner. He pointed out that the provision was in two parts; the first part sought to define disability in the most stringent and restrictive terms possible and the second part gave four illustrations of what may be considered as disability for the purpose of accident benefit. The illustrations of what may be considered as disability greatly relaxed the apparently highly restrictive and stringent definition in the first part of the provision. He submitted that with the application of technology, specially computerisation, in modern times, it is not difficult to visualise a person who has suffered amputation of both feet at the ankle or the amputation of one hand at wrist and one foot at the ankle taking up some work, occupation or profession and being able to earn a livelihood. He, therefore, submitted that the first part of the provision was not to be understood with unyielding rigidity and the evidence for this was provided by the illustrations given in the provision itself. 8. Mr. Sinha further submitted that the four illustrations enumerated in the provision were only illustrative and certainly not exhaustive. In support of the submission he gave the instance of someone who does not have to undergo amputation of any part of the body but becomes paralysed below the waist as the result of the accident. He submitted that it would be wholly unjust, unfair, unreasonable and arbitrary to deny the accident benefit to the person assured who becomes paralysed from the waist down due to accident simply because the limbs though lifeless remain un-amputated. Mr. Sinha submitted that many similar other examples could be cited in support of the contention that the four kinds of disability/loss enumerated in the provision were only illustrative and not exhaustive. 9. There is much substance in Mr. Sinhas submission that the first part of the provision defining disability is subject to certain flexibility and practicability and that the four kinds of injuries/losses enumerated in the second part of the provision are illustrative and not exhaustive. 9. There is much substance in Mr. Sinhas submission that the first part of the provision defining disability is subject to certain flexibility and practicability and that the four kinds of injuries/losses enumerated in the second part of the provision are illustrative and not exhaustive. But a question arises how far the stringency of the definition can be relaxed and to what extent the illustrations constituting disability can be extended / expanded. Will the loss of one hand at the elbow constitute disability? Will the loss of one hand at the shoulder constitute disability? Will the loss of thumb(s) and fingers of one or both hands or the loss of toe(s) and/or fingers of one or both feet constitute disability? Mr. Sinha was unable to give any satisfactory reply to these questions. 10. To my mind the whole difficulty in arriving at the proper meaning of the provision stems from reading it in the abstract and in an absolute sense. The provision can be meaningfully understood only in the context of the life and circumstances of the person assured. Any attempt at its interpretation in isolation and divorced from the life and circumstances of the person assured would only lead to misunderstanding and in many cases, such as the present one, would make the provision appear meaningless. On the other hand, if the definition of disability is read and understood in the context of the life and circumstances of the person assured, its meaning becomes perfectly clear and every part falls into place. 11. One thing that stands out from a bare perusal of the provision is that disability is defined with reference to the capacity to earn livelihood. That is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways, Let us take a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road in so far as their earning capacity is concerned. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road in so far as their earning capacity is concerned. But in case of a lawyer or a doctor (physician) the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on ones personal, family or social life but the loss of one of the legs to a lawyer or a doctor would not interfere with his professional work/earning in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller. Conversely, the loss of speech resulting from accident would bring to end the professional career of an Advocate or a singer and would also very adversely affect the work of a doctor (physician). But this particular disability will not have the same consequences, from the point of view of earning capacity, for the farmer or the cycle-rickshaw-puller. Similarly an accident causing disfigurement of face shall have different consequences for a professional actor and others. 12. Or let us take the example of a taxi driver or a truck or bus driver who loses one of his hands in an accident. For him the loss of one of the hands would mean a total and complete loss of earning capacity. 13. Now, in the case of a farmer doing his own cultivation work or a cycle-rickshaw-puller who loses one of the legs and is thereby rendered incapable to earn his livelihood, he cannot be asked to take up the work, occupation or profession of a potter or a weaver and that since he was still capable of doing some work, his disability was not complete and total and it was, therefore, not covered by the definition. Similarly, a taxi or a truck or bus driver who loses one of the limbs cannot be asked to switch over his job and become a gate-keeper and thus denied the accident benefit under the policy. 14. Whether or not the injury or loss constitutes disability must necessarily be judged with reference to the means of livelihood of the person assured at the time of the accident causing the injury/loss. 15. 14. Whether or not the injury or loss constitutes disability must necessarily be judged with reference to the means of livelihood of the person assured at the time of the accident causing the injury/loss. 15. It is true that there are some people, though very small in number, who have sufficient courage, resilience and inner-resources to overcome any tragedy, misfortune, injury or loss and who, over a period of time, are capable of readjusting their lives and taking up an entirely new kind of work, occupation or profession. Such people ought to be paid tributes and others less capable should be encouraged to follow their example but the claim of accident benefit under the policy can never be denied on the ground that the person assured might in distant future display extraordinary courage to overcome his present injury and loss and take up another kind of work, occupation or profession. 16. The matter can be looked at from a different point of view. No one can deny the need and necessity for giving some special meaning to a word of ordinary usage in an Act, Rule or a contract depending upon the context, and the aim and object of the Act, Rule or the contract: It is thus perfectly open to the Corporation to define the word disability and to give it a special meaning in its policy document for the accident benefit claim. Further, it is not only open but really quite imperative for the Corporation to give certain reasonably restrictive meaning to the word so as to protect itself against frivolous claims and any abuse of the policy. But the question is can the Corporation in defining a word of common usage turn the word inside out, denude it completely of its common and ordinary meaning and leave a lifeless and meaningless husk of the word. After all a person intending to take a policy does not engage a lawyer to carefully go through every word of the policy documents and to explain to him what is covered and what is not covered under the policy. A person takes out a policy broadly guided by the ordinary meaning of the words used in the policy. After all a person intending to take a policy does not engage a lawyer to carefully go through every word of the policy documents and to explain to him what is covered and what is not covered under the policy. A person takes out a policy broadly guided by the ordinary meaning of the words used in the policy. I find it impossible to imagine that while taking out the policy it would have occurred to the petitioner (or to any reasonable person on the street) that he may loose one of the legs six inches above the knee and yet be told that his injury was not disability. This would be an insult to his injury and an insult to plain reason too. 17. At this stage it may be of some use to examine the definition and meaning given to the word "disability" in one or two contemporary legislations. The intent is clearly not to import to the Corporations policy the meaning assigned to the word in different Acts framed with different aims and objects. But the purpose is to examine how distant and far away is the meaning assigned to the word by the Corporation in comparison to the sense in which the word is normally understood by the Central Legislature. 18. In a recent legislation called The Persons With Disability (Equal Opportunities Protection of Rights & Full Participation) Act, 1995, section 2 (i) defines disability to mean, among others, locomotor disability. Section 2 (t) defines "persons with disability" to mean a person suffering from not less than 40% of any disability as certified by a medical authority. 19. In the present case the report, dated 28.4.2003 by the medical board certifies the petitioner to suffer from locomotor handicap of severe (85%) category. 20. Section 33 of the Act makes provision for reservation in Government employment, no less than 3%, for persons with disability. 21. But in case of this Act it may be argued that it was made to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific region and, therefore, of necessity the word "disability" was construed in a wider sense. 22. There is another legislation having far greater similarity in content with the insurance policy of accident benefit which is called The Personal Injuries (Compensation Insurance) Act, 1963. 22. There is another legislation having far greater similarity in content with the insurance policy of accident benefit which is called The Personal Injuries (Compensation Insurance) Act, 1963. The object of the Act was to impose on employers a liability to pay compensation to workmen sustaining personal injuries and to provide for the insurance of employers against such liability. In this Act total disablement is defined in section 2 (h) as follows : (h) "total disablement" means such disablement whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time the injury was sustained : Provided that permanent total disablement shall be deemed to result from every injury, or from any combination of injuries, specified in the Schedule, where the percentage, or the aggregate percentage, of disability as specified in the schedule against such injury, or combination of injuries, amounts to one hundred percent, or more." 23. It is significant to note that in the Insurance Act for injuries compensation total disablement is defined with reference to working/earning capacity at the time of sustaining the injury - a conclusion to which this court arrived at in the earlier part of the judgment. 24. In view of the discussions made above, I come to the firm conclusion that the definition of disability as contained in clause 10 of the policy must be understood in the context of the life and circumstances of the person assured and further that the expression, "... any work, occupation or profession can ever sufficiently do....." in the definition of disability must be understood to mean any work of the kind which the person assured was doing or was capable of doing at the time of accident causing the injury/ loss. 25. Viewed thus, the decision of the Life Insurance Corporation to reject the petitioners claim for accident benefit on the ground that the injury/loss suffered by him did not fall in any of the four categories enumerated in clause 10 of the policy, is wholly unjust, unreasonable and untenable. It is, therefore, set aside. 26. From this stage the court cannot go any further and the matter has to be remitted. This is because the matter now requires an enquiry on facts and there are no relevant materials before the court. It is, therefore, set aside. 26. From this stage the court cannot go any further and the matter has to be remitted. This is because the matter now requires an enquiry on facts and there are no relevant materials before the court. The way in which the pleadings was upgraded has already been noted in the judgment, but, still all material facts have not come to the court. What was the means of livelihood of the petitioner? Was he in service in the Government or under a private employer or was he self employed ? If he was in service, what was the nature of his job and whether he was able to retain it after the accident? If he was self employed, what was the nature of the work/ occupation or vocation and how far is he able to carry on his work, occupation or vocation after his loss? These are only some of the facts, apart from others, that need to be properly considered before taking a decision on his accident benefit claim. The competent authority in the Corporation is, therefore, directed to hold an enquiry in the matter in the light of this judgment and to reconsider the petitioners claim on the basis of his findings in the enquiry. In the enquiry the concerned officer will allow the petitioner sufficient participation and shall give him full opportunity to place his case and produce materials in support of his case. The enquiry should be concluded expeditiously so that a final decision on the petitioners claim is taken within two months from the date of receipt/production of a copy of this order in the office of the Senior Divisional Manager, Life Insurance Corporation of India, Patna and the petitioner be intimated accordingly. 27. In the result, this writ petition is allowed. 28. Having regard to the nature of the dispute and the very unequal position of the contending parties, the Corporation is directed to pay to the petitioner Rs. 10,000/- as the cost of litigation. The payment must be made within fifteen days from the date of receipt/production of a copy of this order in the office of the Senior Divisional Manager, Life Insurance Corporation of India, Patna.