Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 48 (JK)

T. Vijayachandran Nair v. Union of India

2018-02-02

TASHI RABSTAN

body2018
JUDGMENT : 1. Instant petition has been filed seeking quashment of Order No.34/LIC/SPBY/Adm-1/07/1219 dated 10.09.2007 by virtue of which respondents have rejected the claim of petitioner for grant of disability insurance claim. He further sought direction to respondents to release amount of disability insurance claim along with interest on the grounds taken in it. 2. Petitioner was appointed as Constable on 22.11.1969 and allotted No. 691031000. On 07.09.2006, while he was going on bicycle from Bn. HQ to Trg. Area at Rajouri, he met with RTA involving a private vehicle and fell down due to which he suffered injury on his head and right foot. He was put on conservative treatment both for head and foot injury. Below knee amputation of the Right leg of the petitioner was done. Thereafter, Medical Board was constituted, which after assessment has awarded 40% disability. 3. There was LIC’s New Insurance Scheme for the personnel of Border Security Force called as Seema Parihari Beema Yojana (SPBY). Under said scheme, respondents are said to have deducting money from the pay of BSF personnel and therefore petitioner was also paying the same from his pay, for which respondents are under obligation to pay the amount of insurance on account of injuries he suffered during service but the respondents have not released the said amount but in case of others, the respondents have released. It is stated that the respondents have given different treatment to petitioner while it is settled law that equals shall be treated equally. Learned counsel submits that the amount so claimed by the petitioner is not a bounty and it is treated as property under the provisions of the Constitution. So it violates the provisions of Article 14 of the Constitution of India and it also violates the provisions of principles of natural justice. 4. Respondents have filed objections insisting therein that on 07.09.2006, petitioner met with a vehicular accident with a Civil Oil Tanker, due to which he sustained head injury and his right leg below knee was also crushed. It is averred that he was immediately evacuated to Sector Hospital, Narayanpur Malda, but as his condition was getting worse, he was referred to National Medical College and Hospital, Kolkata, where his right leg below the knee was amputated on 12.09.2006. It is averred that he was immediately evacuated to Sector Hospital, Narayanpur Malda, but as his condition was getting worse, he was referred to National Medical College and Hospital, Kolkata, where his right leg below the knee was amputated on 12.09.2006. Meanwhile, a Court of Inquiry was ordered and as per the findings of the Court as well as final remarks of competent authority, the accident had occurred due to rash and negligent driving of driver of Civil Oil Tanker No. WB-23-8869. Court of Inquiry had further recommended that the case of the petitioner for claiming Seema Parihari Beema Yojana (SPBY), to be taken up immediately with the concerned Insurance Company as per policy laid down in the Scheme. The case for claiming SPBY compensation in respect of the petitioner was taken up with FHQ (Adm-I SPBY Cell), which was returned by Force Headquarter (FHQ) with the remarks that as per para No. 10 (d) of the Agreement executed between the Border Security Force and Life Insurance Corporation of India, the total permanent disability would mean disabilities arising due to accidental inquiry resulting in the irrecoverable loss of one hand in the amputation at or above the wrist and one foot at or above the ankle. It is maintained that on the basis of Medical Board opinion and final remarks of Commandant on Court of Inquiry conducted by the Unit in the accident, proposal for claiming insurance cover under (SPBY) Scheme of LIC was sent to Force HQ BSF (Adm-1 SPBY Cell) New Delhi, but it returned the proposal with the remarks that as per para 10 of the Agreement, disability claim is admissible in total and permanent disability due to accidental injuries resulting in the irrevocable loss of : (a) The entire sight of both eyes, or (b) In the amputation of both hands at or above the wrists, or (c) In the amputation of both feet at or above the ankle, or (d) In the amputation of one hand at or above the wrist and one foot at or above the ankle. 5. It is contended that the decision of BSF Medical Board/Civil Surgeon regarding disability will be treated as final for accepting the total and permanent disability claim. LIC will pay only one claim either for Double Accident Benefit or for total and permanent disability. 5. It is contended that the decision of BSF Medical Board/Civil Surgeon regarding disability will be treated as final for accepting the total and permanent disability claim. LIC will pay only one claim either for Double Accident Benefit or for total and permanent disability. It is further maintained that petitioner is having 40% permanent disability due to amputation below knee of right leg only, thus, petitioner’s claim for insurance cover under LIC (SPBY) does not come within purview of said scheme. It is, thus, insisted that in view of clarification given by the FHQ (Adm-1 SPBY Cell) vide letter dated 25.01.2007, petitioner is not entitled to insurance cover under SPBY scheme of LIC even though the injury was sustained by petitioner during service. Respondents have further averred that since there is involvement of amputation of one foot below the knee at right leg only in the case of petitioner and there is no involvement of amputation of hand, as such insurance claim under LIC (SPBY) was not admitted by the insurance agency stating that the claim is not covered under scheme as Para 10(d) of Agreement executed between LIC of India and BSF. Thus, it is contended that since Unit has made all out efforts in favour of the petitioner for early release of insurance amount but according to Para No. 10 (d) of agreement, petitioner is not entitled for LIC (SPBY) claim. 6. This petition is pending since 2008. Respondents 1 to 5 have filed reply whereas respondents 6 and 7 did not choose to file reply despite various opportunities. Hence, respondents 6 and 7 were set ex parte vide order dated 19.12.2017. 7. Heard learned counsel for the parties and perused the record. 8. There is no dispute that petitioner is disabled. His right leg below knee has been amputated. The said disability is the result of an accident. It occurred when petitioner was in service, more particularly during currency of the policy. 9. The question, therefore, is whether the disability is required to be 100% for claiming disability benefit as contended by respondents. Such contention is in my view wholly misconceived. 10. The sole ground, on which the claim of the petitioner has been disallowed, is that only one of the legs of the petitioner has been amputated and the Medical Board has assessed the degree of disability 40 per cent. Such contention is in my view wholly misconceived. 10. The sole ground, on which the claim of the petitioner has been disallowed, is that only one of the legs of the petitioner has been amputated and the Medical Board has assessed the degree of disability 40 per cent. The disability, according to respondent, is, therefore, not total but only partial. 11. There is nothing in the policy to indicate that 100% disability is a condition precedent for attraction of the accident benefit clause in the policy. On the other hand, compensation becomes payable on proof of death or permanent disability of the assured, as a result of an accident, while the policy is in force as will be apparent from the very paragraph of Clause 10 of the said policy. 12. The use of the word 'disability' in the first paragraph of Clause 10 of the said policy has further been explained in the third paragraph of the said Clause as disability, which must be the result of an accident and must be total and permanent and such that there is neither then nor any time thereafter any occupation or profession that the assured can ever sufficiently do or follow to earn or obtain any wages, compensation or profit. 13. The word "total" was never intended to apply only to hundred per cent disability. Accordingly, blindness of both eyes is deemed to be disability although a blind person may be in a position to do work and even read with the help of Braille. Similarly, amputation of both hands is deemed to be total disability, although it is obvious that a person whose hands are amputated can, inter alia, move, read and talk. Amputation of one hand from the wrist onwards and one leg from the ankle onwards is also deemed to be total disability although the victim might be capable of some activity with the unaffected hand and leg. The instance of cases in which a person would be deemed to be totally disabled are only illustrative and not exhaustive. 14. In my view, the words "total disability" used in the Policy is to be liberally interpreted to mean total and permanent disability of a vital organ or limb, which seriously impairs important human functions such as movement, vision etc. 14. In my view, the words "total disability" used in the Policy is to be liberally interpreted to mean total and permanent disability of a vital organ or limb, which seriously impairs important human functions such as movement, vision etc. There can be no dispute that petitioner having lost a vital limb totally, and has become permanently disabled and incapable of earning any livelihood. Disability has to be assessed from the physical deficiencies. It is beyond our comprehension that a person having 40% disability can be called a physically complete man. In my view disability has to be given purposeful and effective meaning in respect of physical condition of a person. If a person who suffers more than 40% disability has to be held a person who has suffered a permanent disability irrespective of the fact that he is still earning his livelihood. Can a person with 40% disability work and earn like a 100% able-bodied person? 15. The dictionary meaning of word disability is a thing that incapacitates or disqualifies, unfitness, the state of not being able, weakness. Thus any person having suffered 40% disability cannot be deemed as an able-bodied person merely on the premise that he has some or the other earning from other source. To call a person who has several disfigurements and has 40% disability as a perfect bodied man defies the common sense as any kind of disfigurement or any kind of disability suffered by a person physically renders that person imperfect human being so far as physicality is concerned and affects his capacity to earn substantially. Interpretation provided by the Insurance Company is nothing short of logic chopping. It is a universal rule of interpretation of terms of contract or a statute that interpretation should be in consonance with the aims and objects of the contract and statute. If there are two interpretations possible, the interpretation which favours the consumer or the insured has to be accepted and adopted. Otherwise also, it is settled law that beneficial provisions are required to be interpreted in proper manner. 16. Accordingly, I deem it proper to dispose of this petition with a direction to the respondents to give benefit of disability claim of LIC policy to the petitioner within a period of three months from the date of receipt of certified copy of this order. 17. Disposed of as above along with connected MP(s).