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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 end-

stage 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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