Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:

(1)                Advocate for the Appellant points out that the Respondent is duly served with notice after admission.  Service copy is on record.  So, he should be excused from filing service affidavit.  We accept his statement and excuse him from filing service affidavit in respect Respondent.

(2)                This is an appeal filed by the original Opponent Insurance Company against the judgement and award passed by the District Consumer Disputes Redressal Forum, Kolhapur in Consumer Complaint No.170/2010.  By allowing the complaint partly, the District Forum by its judgement and award dated 5^th February, 2011,  directed Appellant Insurance Company to pay 50% of the policy amount to the Complainant with interest @9% per annum form 13/05/2009 till the actual payment and also directed Insurance Company to pay `1,000/- towards cost.  As such Insurance Company has filed this appeal taking strong exception to the award passed.

(3)                Facts lie in narrow compass.  Complainant is an Advocate.  He had taken ‘passengers for carrying commercial vehicle policy package’ for which said policy was in force from 23.03.2008 to 22.03.2009.  The Complainant suffered accidental injury on 26.01.2009 at about 12.30 midnight at Swayambhu Ganesh Mandir Chowk, Laxmipuri, Kolhapur.  In the said accident Complainant suffered injury on her head.  She was required to be admitted in various hospitals.  She had undertaken treatment in many hospitals but she alleged that she had suffered permanent disability of 11.2% to her left ear and 43.1% to her right ear and therefore, she lodged claim with the Insurance Company.  However, the Appellant Insurance Company repudiated the claim by informing the Complainant that since there was no 100% disability for both ears, the claim was not payable.  The Complainant therefore filed consumer complaint and claimed the amount of `75,000/- as per policy and also claimed `15,000/- towards mental harassment and `3,000/- towards cost.

(4)                In response to notice the Opponent Insurance Company filed  written version.  According to Opponent Insurance Company as per terms and conditions of the policy the Complainant had not suffered 100% disability to her ears and therefore, the claim was not payable and they had rightly repudiated the insurance claim. 

(5)                After hearing both the parties the District Forum as per certificate submitted by the Respondent herein was pleased to allow the claim and passed the award and aggrieved thereby this appeal has been filed by the Insurance Company.

(6)                We heard Advocate Mr.M.M. Mahajan for the Appellant Insurance Company.  None appeared for the Respondent though duly served after admission.  No adjournment application has been presented by the Respondent for today.  Therefore, we heard Advocate Mr.Mahajan for the Appellant Insurance Company.

(7)                We are finding that order passed by the District Forum is bad in law and cannot be allowed to be sustained in law.  Policy condition mentioned in Section IV of the policy mentions that: “(i) Insured amount would be payable 100% in case of death, or (ii) loss of two limbs or sight of two eyes or one limb and sight of one eye and (iii) 50% insur