Kerala High Court
Visakh Vijayan vs Union Of India on 22 October, 2025
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W.P.(C). No.19938 of 2022 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 22ND DAY OF OCTOBER 2025 / 30TH ASWINA, 1947
WP(C) NO. 19938 OF 2022
PETITIONER:
VISAKH VIJAYAN
AGED 30 YEARS
UTHRADAM SIVAPURAM CHERIYAKOLLA PO KUNNATHUKAL
TRIVANDRUM, PIN - 695504
BY ADV SRI.C.R.SURESH KUMAR
RESPONDENTS:
1 UNION OF INDIA
UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF
ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAWAN, 1,
PARLIAMENT STREET, NEW DELHI, PIN - 110001
2 NEW INDIA ASSURANCE COMPANY LTD.
THE NEW INDIA ASSURANCE COMPANY LTD NEW INDIA ASSURANCE
BLDG, 87, MAHATMA GANDHI ROAD, FORT, MUMBAI, PIN -
400001
3 SECRETARY, DEPARTMENT OF FINANCIAL SERVICES
DEPARTMENT OF FINANCIAL SERVICES, MINISTRY OF FINANCE,
ROOM NO.106, 2ND FLOOR, JEEVANDEEP BUILDING, PARLIAMENT
STREET, NEW DELHI, PIN - 110001
BY ADVS.
SRI.GEORGE A.CHERIAN
SHRI.JAGADEESH LAKSHMAN, SENIOR PANEL COUNSEL
SRI.K.JACOB MATHEW
SRI.GEORGE CHERIAN (SR.)
OTHER PRESENT:
SC- LAL K JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.10.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P.(C). No.19938 of 2022 :2:
VIJU ABRAHAM, J.
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W.P.(C) No.19938 of 2022
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Dated this the 22nd day of October, 2025
JUDGMENT
The above writ petition is filed seeking to quash Ext.P5 and
for a declaration that the petitioner is entitled for 100% disability
personal accident claim, in the facts and circumstance of the case.
2. The brief facts necessary for the disposal of the above writ
petition are as follows:
Petitioner is a Doctor by profession, aged 29 years. The
vehicle driven by the petitioner slipped back and fallen into a cliff
of 5000 ft. down. The unfortunate accident resulted in serious
injuries and the petitioner is paralyzed below the hip. The
petitioner had undergone treatment at various hospitals at
Trivandrum and CMC Velloor and he is confined to wheelchair
with a paralysis of below hip termed as 'Traumatic Paraplegia'.
The police registered a case making the petitioner as accused for
rash and negligent driving as evident from Ext.P1 FIR, in crime
No.86/2021 of Vagamon police station. The petitioner has
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approached this Court to get the FIR quashed, by filing Crl.
M.C.No.2719/2021 and the same is pending consideration. The
petitioner had to spend several lakhs for his treatment and it is
confirmed that he cannot stand on his legs or walk any more in
his life. Ext.P2 is the discharge summary issued by the Christian
Medical College, Vellore. The petitioner is also issued with a
disability certificate by the Medical Authority,
Thiruvananthapuram proving that he has 65% permanent
locomotor disability for both lower limbs. The vehicle from which
the petitioner sustained injuries was insured with 2 nd respondent
and there was a compulsory Personal Accident cover for owner-
driver for a sum of Rs.15,00,000/- as evident from Ext.P4 Policy
Certificate. Thereafter the petitioner approached the 2 nd
respondent with a claim under the Personal Accident disability
claim, covered under Ext.P4. To the surprise of the petitioner, the
file was closed as per Ext.P5 stating that the petitioner has only
65% permanent disability in relation to insured's both lower limb
and the claim cannot be entertained as 100% permanent loss is
only covered as per the conditions stated in the policy. It is
aggrieved by the same that the present writ petition has been
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filed.
3. A detailed counter affidavit has been filed by the
respondent Insurance Company, wherein a contention regarding
the maintainability of the writ petition was raised, stating that the
petitioner is claiming the benefit under a policy of insurance and
the claim for Personal Accident is a special contract, which is to
be decided on the basis of the terms of contract and the petitioner
cannot approach this Court under Article 226 of the Constitution
of India claiming the benefit under a contract of insurance.
Various contentions were also raised on the merits of the matter
stating that the petitioner has only 65% permanent disability as
certified by the Medical Board and only the persons having 100%
disability is entitled for the benefit under the policy and the terms
and conditions attached to the policy has been produced as
Ext.R2(a) along the with the counter affidavit. On the basis of the
above said contentions, the learned Senior Counsel appearing for
the 2nd respondent sought for dismissal of the writ petition.
4. I have heard the rival contentions on both sides.
5. The only issue to be decided is as to whether the
petitioner is entitled for the personal accident claim as per Ext.P4
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policy. The first question to be decided is regarding the
maintainability of the present writ petition as contended by the
learned Senior Counsel appearing for the 2nd respondent. The
learned Senior Counsel relies on the unreported judgment of this
Court in W.P.(C)No.17056 of 2004 and also the judgment in
W.A.No.2683 of 2017 dated 14.03.2017 to contend that if an
insurance company is not willing to settle the claim made by an
insured, this Court cannot compel the insurance company to
honour the claim in proceedings under Article 226 of the
Constitution of India and the claimant has to seek appropriate
other remedies available to them under law. Based on the said
judgments, it is further contended that whether the claim made by
the petitioner is covered by the terms of the policy etc., is a pure
question of fact, which cannot be adjudicated in a proceedings
under Article 226 of the Constitution of India. The learned Senior
Counsel also relies on the judgment of the Apex Court in Oriental
Insurance Co. Ltd. v. Sony Cheriyan [1999 KHC 1301] to
contend that the insurance policy between the insurer and the
insured represents a contract between the parties and the terms
of the agreement have to be strictly construed to determine the
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extent of liability of the insurer. The insured cannot claim
anything more than what is covered by the insurance policy. The
learned Senior Counsel also relies on the judgment in Export
Credit Guarantee Corporation of India Ltd. v. Garg Sons
International [(2014) I Supreme Court Cases 686] and
contended that the Courts cannot substitute the terms of the
contract itself, under the garb of construing terms incorporated in
the agreement of insurance and no exceptions can be made on the
ground of equity and the liberal attitude adopted by the court, by
way of which it interferes in the terms of an insurance agreement,
is not permitted and the terms of the insurance policy has to be
strictly construed. Reliance was also placed on the judgment of
the Apex Court in the Central Bank of India Ltd. Amritsar v.
The Hartford Fire Insurance Co. Ltd. [AIR 1965 SCC 1288]
wherein it is held that while construing a deed, the Court must
give effect to the plain meaning of the words however it may
dislike the result.
6. Going by the judgments relied on by the learned Senior
Counsel appearing for the respondent Insurance Company, this
Court while considering the terms of an insurance policy has to
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strictly construe the terms of the agreement to determine the
extent of liability of the Insurance Company. Further, this Court
cannot substitute the terms of the contract itself and that while
construing a deed, the Court must give effect to the plain meaning
of the word, however it may dislike the results. Therefore, in the
light of the judgments referred to by the learned Senior Counsel,
the Court has to consider the claim of the petitioner strictly
construing the terms of the policy, a copy of which is produced as
Ext.R2(a) and find whether the claim raised by the petitioner is
admissible by a plain reading of the terms of the agreement.
Section III of Ext.R2(a) - terms of the policy deals with personal
accident cover for owner-driver. The relevant portion reads as
follows:
"SECTION III - PERSONAL ACCIDENT COVER FOR OWNER-
DRIVER
Subject otherwise to the terms exceptions conditions and
limitations of this Policy, the Company undertakes to pay
compensation as per the following scale for bodily Injury/ death
sustained by the owner-driver of the vehicle in direct connection
with the vehicle insured whilst mounting into/dismounting from or
traveling in the Insured vehicle as a co-driver, caused by violent
accidental external and visible means which independent of any
other cause shall within six calendar months of such injury result
in:
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Nature of Injury Scale of compensation
i. Death 100%.
ii. Loss of two limbs or sight of 100%
two eyes or one limb and sight
of one eye.
iii. Loss of one limb or sight of 50%.
one eye
iv. Permanent total 100%.
disablement from injuries
other than named above.
Going by the above said table attached to Section III of Ext.R2(a)
- terms and conditions of the policy, 100% compensation will be
paid in case of death and in case of loss of two limbs or sight of
two eyes or one limb and sight of one eye. In case where the
claimant has lost one limb or sight of one eye, he is entitled for
50% of the insured amount, whereas in case of permanent total
disablement from injuries other than the disabilities stated above,
the claimant is entitled for 100% compensation amount.
7. Now let me refer to the disabilities suffered by the
petitioner, which is reflected in Ext.P3 disability certificate as
given below:
1. He is a case of Locomotor Disability
2. The diagnosis in the case of petitioner is Traumatic Flaccid
Complete Paraplegia with Neurogenic Bowel and Bladder.
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3. He has 65% Permanent Disability in relation to his Both
Lower Limb.
A pertinent aspect to be noted is that while rejecting the claim of
the petitioner as per Ext.P5, the 2 nd respondent has considered
only one part of the disability certificate regarding 65%
permanent disability in relation to the petitioner's both lower
limb, stating that only in case of 100% permanent loss, the
petitioner will be entitled for personal accident claim as per the
terms of the policy. The 2 nd respondent failed to consider the
other disabilities mentioned in Ext.P3 disability certificate
including the fact that it is a case of locomotor disability and the
diagnosis in the case of petitioner is Traumatic Flaccid Complete
Paraplegia with Neurogenic Bowel and Bladder along with 65%
permanent disability in relation to his both lower limb. The other
two medical conditions referred to in Ext.P3 disability certificate
was not taken into consideration by the respondent Insurance
Company while rejecting the claim of the petitioner as per Ext.P5.
8. As earlier pointed out, the claim of the petitioner was
rejected solely relying on one of the finding entered in the
disability certificate that the petitioner has only 65% permanent
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disability in relation to his both lower limb. But the 2 nd respondent
Insurance Company failed to notice the other two findings in
Ext.P3 disability certificate, after examining the petitioner. Ext.P3
would reveal that it is a case of Locomotor Disability, which
means that the petitioner is not able to move around without
mechanized help. Another finding is that it is a case of Traumatic
Flaccid Complete Paraplegia with Neurogenic Bowel and Bladder.
Taber's Cyclopedic Medical Dictionary -Volume 1 and 2 are
referred to find the meaning of the words as entered in Ext.P3, in
which the word 'Flaccid' has been defined as relaxed; flabby;
having defective or absent muscular tone. The word 'Paraplegia'
is defined in Volume II of the above said dictionary, which reads
as follows:
"paraplegia[Gr.paraplegia, stroke on one side] Paralysis of the
lower portion of the body and of both legs. It is caused by a lesion
involving the spinal cord that may be due to mal-development,
epidural abscess, hematomyelia, acute transverse myelitis, spinal
neoplasms, multiple sclerosis, syringomyelia, or trauma.
9. A Division Bench of High Court of Madras in CMA
No.2814 of 2024 and connected cases, has considered a similar
issue and held in paragraph 15 as follows:
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"15. From Ex-P.4 to Ex-P.7-Medical Records it is clear that the
petitioner sustained spine injuries causing traumatic paraplegia,
and consequently the petitioner suffers from mobility issues and
loss of control over his bladder. Considering the medical expenses
and also health condition of the petitioner viz., traumatic
paraplegia and loss of bladder control, this Court is of the view
that the petitioner suffers 100% functional disability. Hence, the
petitioner without an attender's help, cannot survive. The Hon'ble
Supreme Court of India in Divya -vs-National Insurance Co. Ltd,
reported in 2023 (1) TN MAC 30 (SC), held that attender charges
have to be calculated by adopting multiplier method. Considering
attender charges at the fair and reasonable rate of Rs.4,500/-per
month, it would come to Rs.9,72,000/- (Rs.4,500 x 12 x 18) when
appropriate multiplier of 18 is applied. The same is awarded
under the head of attender charges."
(underline supplied)
In the said judgment the Division Bench of Madras High Court
found that the petitioner therein sustained spine injuries causing
traumatic paraplegia and consequently the petitioner suffers from
mobility issues and loss of control over his bladder and
considering the medical expenses and also health condition of the
petitioner of traumatic paraplegia and loss of bladder control, the
Court held that the petitioner suffers 100% functional disability. I
am of the view that going by Ext.P3 disability certificate, the case
of the petitioner is also one of 100% permanent disability.
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10. Taking into consideration the above facts and
circumstances revealedfrom Ext.R2(a) terms of the policy and
Ext.P3 disability certificate, this Court is of the view that this is a
fit case, where the issue could be adjudicated by this Court by
giving effect to the plain meaning of the terms of the agreement
and therefore, the present writ petition is perfectly maintainable.
11. Taking into consideration above facts and circumstances,
especially the fact that in Ext.P3 itself, over and above the 65%
permanent disability of both lower limb reported, it is further
reported by the Medical Board regarding the other disabilities
suffered by the petitioner, I am of the view that the respondent
insurance company has wrongly rejected the claim raised by the
petitioner as per Ext.P5 order. Further, as held by the Division
Bench of Madras High Court, traumatic flaccid complete
paraplegia with neurogenic bowel and bladder is a case of 100%
permanent disability, and Ext.P3 disability certificate clarifies that
the petitioner also suffers from similar health conditions and is a
case of locomotor disability.
Taking into consideration Ext.P3 disability certificate, I am
of the opinion that the petitioner's case perfectly fit in Clause
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No.iv under Section III of Ext.R2(a), ie., a case of permanent total
disablement from injuries, which entitle the petitioner to get
100% of the insured amount. In view of the above, I am inclined to
allow the writ petition as follows:
1. Ext.P5 is set aside.
2. There will be a direction to the 2 nd respondent to pay the
petitioner the amount of Rs.15 Lakhs, which is the complete
personal accident cover for a person having 100% disability,
with 9% interest from the date of accident, ie., 14.03.2021
till the date of payment.
3. The 2nd respondent insurance company shall pay the amount
as directed above, within a period of two months from the
date of receipt of a copy of this judgment.
Sd/-
VIJU ABRAHAM
JUDGE
sm/
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APPENDIX OF WP(C) 19938/2022
PETITIONER EXHIBITS
Exhibit P-1A ENGLISH TRANSLATION OF EXHIBIT P-1
Exhibit P-1 TRUE COPY OF THE FIR IN CRIME NO.86/2021
DATED 16.03.2021 OF VAGAMON POLICE
STATION, IDUKKI
Exhibit P-2 TRUE COPY OF THE RELEVANT PORTIONS OF THE
DISCHARGE SUMMARY ISSUED BY CHRISTIAN
MEDICAL COLLEGE, VELLORE
Exhibit P-3 TRUE COPY OF THE DISABILITY CERTIFICATE
ISSUED BY THE MEDICAL AUTHORITY,
TRIVANDRUM
Exhibit P-4 TRUE COPY OF THE POLICY CERTIFICATE VIDE
NO. 76140131200100003382 DATED 11.05.2020
Exhibit P-5 TRUE COPY OF THE REJECTION LETTER ISSUED
BY THE 2ND RESPONDENT DATED 18.03.2022
RESPONDENT EXHIBITS
Exhibit R2(a) A true copy of the terms and conditions
of the policy
