United India Insurance

IN THE STATE COMMISSION: DELHI

(Constituted under Section-9 Clause (b) of the Consumer Protection Act, 1986)




Date of Decision: 03-03-2009



Appeal No. _FA-08/113

(Arising out of Order dated 10-08-2007 passed by District Forum, Sheikh Sarai, New Delhi, in Complaint No.DF-VII/63/06)







United India Insurance Co. Ltd.

Through The Regional Manager, DRO-I,

8th Floor, Kanchenjunga Building,

18-Barakhamba Road,

New Delhi. ….. Appellant



Versus



Shri Vishnu Dev,

Proprietor of Sudama Stores,

Shop No. 140, Sector-9,

R.K. Puram,

New Delhi. …. Respondent


CORAM


JUSTICE J.D. KAPOOR, PRESIDENT

MS. RUMNITA MITTAL, MEMBER



1. Whether Reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?





JUSTICE J.D. KAPOOR (ORAL)



1. This appeal is directed against the Order dated 10-08-2007 passed by the District Forum whereby the appellant has been directed to pay the balance of the insurance claim of Rs. 4,90,000/- as the appellant company paid only Rs. 2,19,000/- to the respondent as assessed by the surveyor towards loss of the insured goods and also to pay Rs. 75,000/- as compensation for loss of business and Rs. 5000/- cost of litigation.



2. Relevant facts in brief are that the respondent is the proprietor of a general store namely Sudama Stores. He took an overdraft facility of Rs. 4,90,000/- from Syndicate Bank, R.K. Puram, New Delhi and got his store insured with the appellant for the same amount of Rs. 4,90,000/- covering loss by fire, burglary, theft etc. and the policy was valid for the period from 10-12-2004 to 09-12-2005 and he had paid the premium of Rs. 2,360/-. On 27-02-2005 a fire broke out in the locality in which the shop of the respondent was gutted along other shops and jhuggis situated in the area. The respondent approached the appellant insurance company with a claim of Rs. 4,90,000/- who appointed a Surveyor. However, the Surveyor assessed the loss at Rs. 2,90,000/- only on the ground that the shop area was inadequate to store the goods more than the recommended amount. Feeling aggrieved the respondent approached the District Forum for relief.



3. In reply the insurance company came up with the plea that the respondent was not entitled to be indemnified for the alleged loss as he had failed to furnish necessary documents as required by the Surveyor and he had also concealed the fact that he had a godown for storage of the stock and, therefore, the amount assessed by the Surveyor of the company was justified.



4. In view of the entire shop and the goods lying therein having been completely destroyed the District Forum felt convinced that the respondent was entitled for full insurance claim of Rs. 4,90,000/- as in terms of the policy all risks including fire, furniture, trade in stocks etc. etc. were covered.



5. However, aforesaid finding of facts returned by the District Forum has been assailed by the counsel for the appellant firstly on the ground that the material facts were concealed as all the ‘Kirana’ goods were stored in a godown and the shop in question was a retail shop only for sale and as such the goods used to be taken out from the godown and brought to the shop for sale.



6. We have perused the impugned Order closely. The appellant has failed to produce any documentary evidence to show that the respondent was having any godown. He had obtained the policy in respect of the shop which was known as Shopkeeper’s Insurance Policy for all risks including fire, furniture, stock in trade etc. and therefore now to say that he has concealed material facts is not acceptable.



7. However, taking over all view of the matter, we partly allow the appeal by maintaining the direction for payment of balance amount from the insurance amount and reduce the amount of compensation to Rs. 50,000/- which shall also include cost of litigation.



8. Appeal stands disposed of in aforesaid terms.



9. Payment shall be made within one month from the date of receipt of a copy of this Order.



10. Copy of Order, as per statutory requirement be forwarded to the parties and to the concerned District Forum and thereafter the file be consigned to record.



11. FDR/Bank Guarantee, if any, be released under proper receipt.
«1345678

Comments

  • adminadmin Administrator
    edited September 2009
    10

    DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
    BATHINDA


    CC. No. 150 of 20-05-2008
    Decided on : 24-03-2009












    Daljit Singh S/o Raghunath Singh, aged about 50 years R/o 86, Model Town, Phase-III, Bathinda. ... Complainant
    Versus


    1. United India Insurance Co. Ltd.,, Regd.& Head Office, 24 Whites Road, Chennai 60014 through its Chairman/Managing Director.
    2. United India Insurance Co.Ltd., Regional Office, Feroze Gandhi Market, Ludhiana, through its Regional Manager
    3. United India Insurance Co. Ltd., Branch Office, Kotkapura Road, Bagha Purana, Distt. Moga, through its Branch Manager
    4. United India Insurance Co. Ltd., Divisional Office, The Mall, Bathinda, through its Divisional Manager.
    5. Paramount Health Services Pvt. Ltd., 81 Barodawala Mansion, B-Wng, Ground Floor, Dr. Annie Besant Road, Worli, Mumbai 400018, through its Chairman/Managing Director
      ... Opposite partires


    Complaint under Section 12 of the Consumer Protection
    Act, 1986.


    QUORUM


    Sh. Pritam Singh Dhanoa, President
    Dr.Phulinder Preet, Member
    Sh. Amarjeet Paul, Member

    Present : Sh. Vinod Garg, Advocate, counsel for the complainant.
    Sh. Sunder Gupta, Advocate, counsel for opposite parties No. 1 to 4.
    Opposite party No. 5 exparte.

    O R D E R


    SH. PRITAM SINGH DHANOA, PRESIDENT


    1. This complaint has been filed by Sh. Daljit Singh son of Raghunath Singh a resident Model Town, Bathinda, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against United India Insurance Company Limited through its Chairman, and Branch, Regional and Divisional Managers and M/s. Paramout Health Services Pvt. Ltd., Mumbai. Briefly stated, the complainant secured Medi-claim Insurance policy No. 201204/48/06/20/00000187 for the period from 30-08-2006 to 29-08-2007 from opposite party No. 3. He had been securing such policies from opposite parties No. 1 to 4 since 15-08-2000. The above said Insurance policy was secured by the complainant by renewal of earlier Insurance policy valid upto 15-08-2006. However, the opposite parties have not conveyed any intimation to him about renewal of policy. He did not file fresh proposal form and was not subjected to medical examination at the time of issuance of present policy. The opposite parties also paid a sum of Rs. 1,75,000/- to the complainant on account of cumulative bonus after he secured the policy under reference, as such, the policy in question is continuous policy for all intents and purposes.
    2. The complainant suffered heart ailment all of a sudden on 19-01-2007 and got himself checked from Fortis Hospital, Mohali, where he remained admitted as indoor patient upto 23-01-2007. During the period of admission of the complainant, clinical tests were performed on him in the said hospital and it was revealed after coronary angiography that he is suffering from disease of heart ailment. The doctors gave post PTCA and put a stunt in heart of complainant. He remained admitted upto 23-01-2007 for the said purpose and spent a sum of Rs. 5,27,576/-. On his discharge from hospital, he conveyed intimation to opposite parties No. 1 to 4, who referred the matter to opposite party No. 5 i.e. Third Party Administrator, despite the fact that Insurance policy provides for cashless hospitalisation. The opposite parties No. 1 to 4, in connivance with opposite party No. 5 denied the said benefit to the complainant because of discrepancy in his age vide letter dated 23-01-2007, inspite of submission of medical bills and documents in support of his claim. The complainant paid the entire amount of treatment in the sum of Rs. 5,27,576/- from his own pocket although he has secured the policy for a sum of Rs. 5,00,000/-. The opposite party No. 1, sought copies of policies pertaining to previous years vide his letter dated 14-02-2007, which complainant supplied to him but his claim has not been settled even inspite of legal notice served by him upon the opposite parties through his counsel. Since the opposite parties did not settle his claim, therefore, complainant filed complaint before 'Insurance Ombudsman', Chandigarh, before whom opposite parties No. 1 to 4, took the plea that his claim has been repudiated by opposite party No. 5 on 30-08-2007, on the ground of pre-existing disease in terms of clause 4.1 of policy under reference. It is submitted that no such notice was sent to the complainant by opposite party No. 5 and his decision has no legal affect on his rights under the Insurance policy. The 'Insurance Ombudsman', vide order dated 16-01-2008 treated the policy issued in the name of the complainant as continuous but allowed his claim to the extent of 75% alongwith interest at the rate of 8 percent per annum but he did not accept his claim of remaining amount of Rs. 1,25,000/- and for payment of interest at the rate of 25% to which he is entitled as per the terms and conditions of the policy. The opposite parties No. 1 to 4, have already made the payment of Rs. 4,05,517/- including interest in the sum of Rs. 30,517/- vide cheque No. 053238 dated 30-01-2008. Since the decision given by the 'Insurance Ombudsman', is not binding upon the complainant, hence this complaint.
    3. On being put to notice, opposite parties No. 1 to 4 filed written version resisting the complaint by taking preliminary objections that complainant is estopped by his own act and conduct from filing the complaint because he has already received the amount awarded by 'Insurance Ombudsman', alongwith interest from 01-10-2007 till the date of payment; that complainant is barred by principle of res-judicata because controversy in the present case was directly and substantially in issue before 'Insurance Ombudsman'; that complaint lodged by the complainant is not covered by the Insurance policy secured by him by concealing pre-existing disease; that complainant has not filed any appeal or revision against the order passed by 'Insurance Ombudsman', as such, the same became final and binding upon the parties; that he has suppressed material facts from the knowledge of this Forum, as such he is not entitled to the reliefs prayed for; that this Forum has no jurisdiction to entertain and try the complaint as the same is not maintainable and that being false and vexatious, it is liable to be dismissed with compensatory costs. On merits, it is admitted that complainant secured Medi-claim Insurance Policy in question for the period 30-08-2006 to 29-08-2007, but it is denied that he got renewed Insurance policy which expired on 14-08-2006. It is asserted that complainant has obtained fresh Medi-claim policy for the period 30-08-2006 to 29-08-2007, without mentioning that he is suffering from heart ailment although he had been a chronic heart patient. The complainant filed complaint before 'Insurance Ombudsman' under the Redressal of Public Grievances Rules 1998 and Arbitration & Conciliation Act, 1996, and the same was decided by him vide order dated 16-01-2008 allowing his claim to the extent of 75 percent alongwith interest and a sum of Rs. 4,05,517/- including interest at the rate of 8 percent, has been paid to the complainant against proper receipt in terms of his order. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the same with costs.
    4. It will not be out of place to mention here that the Opposite party No. 5 has been proceeded against exparte.
    5. On being called upon, by this Forum, to do so, learned counsel for the complainant furnished affidavit of complainant Ex. C-19 and copies of documents Ex. C-1 to Ex. C-18, before he closed his evidence. On the other hand, learned counsel for the contesting opposite parties furnished affidavit of Sh. Balwinder Singh, Divisional Manager, Ex. R-1, and copies of documents Ex. R-2 to Ex. R-6, before he closed their evidence.
    6. We have heard, the learned counsel for the parties and perused the oral and documentary evidence and evidence adduced on record by the parties, carefully, with their kind assistance.
    7. At the out set, Sh. Vinod Garg, Advocate, learned counsel for the complainant, has submitted that at the time of issuance of Insurance policy under reference, the opposite parties neither subjected the complainant to medical examination nor got filled from him fresh proposal form and even 'Insurance Ombudsman', has decided that policy under reference is continuous one and renewal of earlier policy secured by the complainant. Learned counsel has argued that if policy is treated continuous policy, then the opposite parties were not justified in withholding the remaining amount paid by the complainant for his treatment in Fortis Hospital, Mohali. Learned counsel has further argued that order passed by 'Insurance Ombudsman' on the complaint filed by the complainant is not sustainable because no cogent reason has been given for withholding the remaining amount of Rs. 1,25,000/- and award of interest at quite lower rate. Learned counsel has argued that initial onus is upon the opposite parties to prove that complainant has been suffering from pre-existing disease and has concealed the material facts with malafide intention for some ulterior motive, as such, onus never shifted upon the complainant to prove otherwise. Learned counsel has argued with full vehemence that the remedy in the Act is additional remedy, as such, there is no bar for filing the complaint for payment of remaining amount after the decision given by 'Insurance Ombudsman', whose orders are recommendatory nature, not being a statutory body. Learned counsel has further argued that payment in terms of award passed by the 'Insurance Ombudsman', has been released to the complainant after approval by competent authority and signatures of the complainant had been secured on the receipt given by him which is undated in routine, as such, there is deficiency in service for which the opposite parties are liable to compensate him and to pay him compensation for mental and physical harassment and costs incurred for filing the complaint. In support of his contentions, learned counsel has placed reliance upon AIR 1999 Supreme Court 3027 United India Insurance Vs. Ajmer Singh Cotton and General mills and others- wherein complainant executed discharge voucher in full satisfaction of his claim. It was held by the Hon'ble Apex court that the plea of the complainant regarding deficiency in service is tenable if he proves that discharge voucher was got obtained from him by fraud or under coercion etc. Learned counsel has further relied upon 2008 (1) CLT 375 Ramesh Aggarwal Vs. Oriental Insurance Co. Ltd., wherein it has been held by the Hon'ble Chhattisgarh State Commission, Raipur, that there appears to be no reason as to why the complainant would have voluntarily and without any demur accepted the amount of Insurance claim as full and final settlement. It was further held that the receipt issued by the complainant also shows many columns thereof are not filled up, as such it appears to have been prepared before him by the insurer before giving the cheque and complainant had hardly no option, but to put signatures on the said document, as such, it cannot be treated as full and final settlement of his claim. Learned counsel has further placed reliance on 1991 Civil Court Cases 166 (S.C.) Life Insurance Corporation of India Vs. Smt. G.M. Channabasamma, wherein it has been held that burden of proof is upon the Insurance Corporation in case the plea is taken of misrepresentation or suppression of material facts. Learned counsel has also cited 1992 (2) CLT 458 Life Insurance Corporation of India Vs. Smt. Bimla Devi, wherein it has been held that diabetes mellatitus is not such a disease, suppression of which would be sufficient ground for repudiation of claim. There was no evidence to establish that the insured deceased knew his ailment and he was guilty of a fraudulent suppression of any material facts at the time of proposal of policy and the doctor who medically examined him was not subjected to cross-examination . It was held that onus probandi in cases of fraudulent suppression of material facts rested heavily on Life Insurance Corporation. Learned counsel has further relied upon 2005(2) CLT 37 Kamleshwari Prasad Singh Vs. National Insurance Co. Ltd.,, wherein it was held by the Hon'ble National Commission that Consumer Forum has jurisdiction to decide a matter which has already been decided by 'Insurance Ombudsman' appointed under the Redressal of Public Grievances Rules, 1998 under Sub Section (1) of Section 114 of the Insurance Act, 1938. It is also held that decision of 'Insurance Ombudsman' is not binding upon the complainant and it is subject to adjudication by the Forum constituted under the Act.
    8. On the other hand, Sh. Sunder Gupta, Advocate, learned counsel for the contesting opposite parties, has argued that complainant has secured Insurance policy after expiry of previous Insurance policy and the opposite parties have imposed punishment upon the delinquent official because of his omission to secure the fresh proposal form. Learned counsel has argued that the complainant had been suffering from pre-existing heart ailment, as such, his claim has been rightly repudiated as per terms and conditions of the policy. Learned counsel has further argued that complainant himself filed complaint before 'Insurance Ombudsman', who has allowed the same to the extent of 75 percent alongwith interest and complainant has accepted the said amount without lodging any protest and has not availed further remedy open to him, as such, instant complaint being after-thought on his part and is not maintainable. In support of his contentions, learned counsel has relied upon 2007(1) CLT 150 Union of India and another Vs Som Parkash and Brothers, wherein it has been held that when a Central Statute bars the jurisdiction of other Court, then Section 3 of the Act would not be applicable. Learned counsel has further relied upon 2008(2) R.A.J. 496 National Insurance Company Limited Vs. Sehtia Shoes, wherein complainant as secured a sum of Rs. 2,72,000/- from the Insurance Company as full and final settlement. It was held by the Hon'ble Apex court that aggrieved party can file a complaint before Consumer Forum but he has to prove that he had to accept the amount on account of coercion and Consumer Forum has to decide whether discharge was voluntary or under coercion. Learned counsel has further placed reliance on 1996(2) CPR 15 The New India Assurance Co. Ltd., Vs. M/s. Geetanjali Silk House & Another, wherein it has been held that record shows that insured accepted the amount settled by the Insurance company under the policy without objection and there was no allegation that he was coerced to accept that amount, as such, there is no deficiency in service. Learned counsel has further relied upon 2004(2) CLT 117 M/s. Desk to Desk Courier & Cargo Vs. Kerala State Electronics Develolpment Corpn. Ltd., wherein it has been held by the Hon'ble National Commission that a person who signs a document containing contractual terms is normally bound by them even though he had not read them or was ignorant of their precise legal effect thereof. Learned counsel has argued that in view of the facts and proposition of law referred above, the complaint filed by the complainant, being abuse of process of the Forum, is liable to be dismissed with special costs.
    9. Admittedly, the complainant secured Medi-claim Insurance policy in question covering risk of his life for the period 30-08-2006 to 29-08-2007. As per order dated 16-01-2008 passed by the 'Insurance Ombudsman', complaint filed by the complainant has been allowed treating the policy issued in the name of the complainant as continuous policy allowing 75 percent of amount of claim on the basis of letter dated 06-07-2007 Ex. C-12, written by the Insurer to Third Party Administrator, and on the ground that fresh proposal form has not been secured from the complainant and he was not medically examined afresh after lapse of previous policy secured by him. The opposite parties have been further directed to pay interest at the rate of 8 percent per annum w.e.f. 01-10-2007, till the date of payment. However, 'Insurance Ombudsman' has adjudicated the controversy on the basis of complaint made by the complainant himself. As per Section 3 of the Act, remedy before the Consumer Forum is additional remedy but the 'Insurance Ombudsman' has partly allowed the complaint in favour of the complainant. In compliance to the said order, the contesting opposite parties have paid to the complainant a sum of Rs. 4,05,517/- as full and final claim amount vide receipt Ex. R-6 and the said amount has been received by the complainant without lodging protest. In the receipt Ex. R-6, complainant has appended his signatures on the revenue stamp and his complete address has been given therein but column meant for date and place are left blank. The mere omission to fill all requisite details in appropriate columns shows casual approach of official concerned but facts borne on record do not suggest that complainant appended his signatures under coercion or distress. As per our opinion, the complainant after receiving the amount awarded by the 'Insurance Ombudsman', without lodging protest, cannot invoke the jurisdiction of this Forum for the payment of remaining amount payable under the policy and re-agitate controversy. Therefore, the complaint is bound to fail on the ground of maintainability. Had his complaint been dismissed by the 'Insurance Ombudsman', then he was entitled to maintain the complaint before this Forum if felt aggrieved, because the decision given by the 'Insurance Ombudsman' is considered recommendatory in nature. The same was the position if the complainant might have refused to accept the amount awarded by the 'Insurance Ombudsman', but after receiving the amount, he cannot be permitted to start de novo trial. We have carefully gone through the authorities relied upon by the learned counsel for the complainant on this aspect of controversy but have come to the conclusion that their facts and circumstances are not attracted to the peculiar facts and circumstances of instant case where the opposite parties have complied with the order passed by the 'Insurance Ombudsman' in letter and spirit and complainant has accepted the amount without lodging any protest, as such, ratio of judgements delivered in the authorities relied upon by the complainant in this regard, does not advance his case.
    10. In the light of our above discussion, we consider it appropriate not to dewell upon the merits of the decision given by 'Insurance Ombudsman' and about controversy in dispute in the present complaint.
    11. For the aforesaid reason, we dismiss the complaint and leave the parties to bear their own costs. However, the complainant is at liberty to avail the remedy open to him against the award given by 'Insurance Ombudsman', if so he desires or advice. He may seek condonation of delay of the period consumed for pursuing the complaint before this Forum from the civil court as permissible under Section 14 of the Indian Limitation Act, 1963. The copies of this order be sent to the parties, free of costs as per rules, on the subject.
      File be indexed and consigned.
    Pronounced :
    24-03-2009 (Pritam Singh Dhanoa)
    President




    (Dr. Phulinder Preet)
    Member

    (Amarjeet Paul)
    Member

  • adminadmin Administrator
    edited September 2009
    G.Lalitha Devi, W/o.G.Rajeshwar Reddy,
    Age:55 years, Occ:House Hold,
    R/o.Lingapur Village, Mdl:Kadam,
    Dist.Adilabad.
    …Complainant.

    //AND//

    The United India Insurance Co.Ltd.,
    Rep.by its Branch Manager,
    Branch Office:Adilabad. …Opp.Party.

    MONDAY THE 9th DAY OF MARCH 2009.
    -:ORDER:-
    Order Pronounced by President:-
    This complaint is filed under section 12 of C.P. Act 1986.
    The brief facts of complaint are as follows:

    1. The complainant’s husband Gopidi Rajeshwar Reddy on 02.04.2005 while going along the side of railway track fell accidentally and received grievous head injury and fell unconscious. He was shifted to NIMS Hospital. As he was in unconscious state and Complainant’s husband was covered by medical claim policy he was shifted to Yashodha Hospital where he was given treatment for extensive depressed fracture of left temporal region. That the treatment was given at Yashodha Hospital from 02.04.2005 to 11.04.2005. As there was no progress in the patient’s condition and unsatisfied with the treatment, her husband was shifted to Gandhi Medical Hospital, Secunderabad where he was treated from 11.04.2005 to 11.05.2005. That Complainant’s husband did not regain conscious and he was in the coma till his death. That due to the injury there was 100% disability to the deceased from the date of accident to the date of death and the death was also the resultant of the injury received in the accident. As there was no progress in the patient’s condition in spite of the treatment, the complainant’s husband was shifted to house. Later he took treatment at Nizamabad Hospital and on 24.12.2005 the doctors told that the condition was serious and there was no chance of survival as such complainant’s husband was taken to his village Lingapur and on the way he succumbed to the injuries on 24.12.2005 at about 9.00 p.m. Complainant’s husband’s brother Gopidi Srinivas Reddy gave a complaint, PS Kadam, registered a case vide Cr.No.109/2005 on 25.12.2005 and made a enquiry and referred the deceased dead for autopsy. The Medical Officer opined the death was due to head injury. The Police Kadam later gave a Final Report that the case was an accidental death due to head injury received by the deceased by falling on the railway track. The deceased Gopidi Rajeshwar Reddy was covered by Janta Personal Accident insurance policy vide Policy No.051900/47/51/11/30590/97, dt:09.03.1998 for a sum of Rs.5,00,000/- covering the period of insurance for 10 years i.e., from 09.03.1998 to 08.03.2008. That a premium of Rs.1250/- was paid by the deceased for the said purpose and he has shown the complainant his wife as the nominee. The nominee has given an application to the Opp.Party on 05.08.2006 claiming the insured amount, but the same was repudiated by the Opp.Party by its letter dt:15.05.2007 informing the complainant that as the injury as per policy condition (A) “if such injury shall within six calendar months of it occurrence be the sole and direct cause of the death of the insured” (date of accident 02.04.2005, date of expiry 24.12.2005) as such they are not admitting the claim. The Opp.Party repudiating the claim of the complainant is against the facts of the case, and against policy conditions and law.
    Hence the complainant prayed this Forum to direct the Opp.Party to pay the above said amount of Rs.5,00,000/- (Rupees Five Lakhs Only) along with 12% interest from the date of accident i.e., 02.04.2005 till the date of realization.

    2. The Opp.Party contested the petition and filed counter. The contents of counter is as follows:
    On receiving application and premium from deceased Gopidi Rajeshwar Reddy, the Opp.Party issued a Policy No.051900/45/51/11/30590/97, dt:09.03.1998 subject to the conditions of the policy by covering the life of the deceased under Janatha Personal Accident policy for a tune of Rs.5,00,000/-. That the complainant forwarded the claim application dt:05.08.2006 in the office of the Opp.Party and on receiving the same after due enquiry the Opp.Party repudiated the claim of the complainant vide their letter dt:16.08.2006 basing on the Clause-(A) of the conditions of the policy i.e., “If such injury shall within six calendar months of it occurrence be the sole and direct cause of the death of the insured” as the deceased received the alleged injuries on 02.04.2005 and died on 24.12.2005 i.e., after 8 months 20 days from the date of receiving of injuries and same has been duly informed to the complainant but again the complainant issued the notice to the Opp.Party claiming the policy amount, so the Opp.Party issued the suitable reply notice stating that her claim was already repudiated vide their letter dt:16.08.2006 so the complainant is not at all entitled to claim the policy covered amount. The Opp.Party further submits that the Clause-(d) of the conditions of the policy are no way applicable to the case of the complainant since the deceased is no more and he has not received permanent disability as stated by the complainant. Further submit that the deceased did not die due to injuries received by him on 02.04.2005 so the complainant is not entitled to claim any compensation. The Opp.Party prayed to dismiss the petition.
    3. Both parties filed Proof Affidavits.
    4. On behalf of complainant Ex.A1 to A14 are marked. Ex.B1 and B2 are marked on behalf of Opp.Party.
    5. Now the point for consideration is whether there are grounds to allow the petition?
    6. Heard both sides. The main contention of the Opp.Party is that the deceased died 6 months after the fatal accident and if any person died 6 months after the accident they are not liable to claim any relief on the policy. In support of their contention Opp.Party mention the condition. It reads as follows:
    “If such injury shall within six calendar months of it occurrence be the sole and direct cause of the death of the insured”.

    In their counter Opp.Party categorically stated about the deceased (Policy Holder). Opp.Party mentioned in the counter as follows:
    “As the deceased received the alleged injuries on 02.04.2005 and died on 24.12.2005 i.e., after 8 months 20 days from the date of receiving of injuries”.

    7. Now it is to be seen whether Gopidi Rajeshwar Reddy deceased sustained fatal accident on 02.04.2005 at near Tarnaka railway track Secunderabad and whether he died due to head injuries after 8 months from the date of accident.
    8. Admittedly deceased Rajeshwar Reddy was hale and healthy till date of accident. After he met with accident he was admitted in Nizam’s Institute of Medical Sciences on 02.04.2005 undergone treatment. From there he was shifted to Gandhi Medical College & Hospital on 11.04.2005 and he stayed there for one month as in patient.
    C/E
    Injuries
    1.
    Laceration over Right (Rt) frontal region with fracture.
    2.
    Fracture of both bones (BB) Right (Rt) fore arm with
    abs cent pub sector.
    3.
    Laceration of exposing muscles of left arm proximal 1/3 medially.

    Ex.A4 Gandhi Medical College & Hyderabad confirms injuries sustained by the patient as mention in Ex.A1 (NIMS). Letter given by Yashoda Hospital Ex.A2. In this case the accident was reported to Police and the S.H.O. Kadam police received complaint and registered the same as Cr.No.109/2005. The case was investigated into. During the course of investigation and after the death of Rajeshwar Reddy P.M.E was conducted on his dead body vide Ex.A14. In Ex.A10 the Doctor while answering the cause of death it is stated that death is due to head injury. Ex.A9 also shows that patient Rajeshwar Reddy was taken to Pragathi Hospital Nizamabad on 24.12.2005 around 6.00 p.m. and the patient was found in unconscious condition. Thus a perusal of Ex.A1 to A10 clearly disclose that late.Rajeshwar Reddy met with fatal accident on Tarnaka railway track and he struggled with death from 02.04.2005 to 24.12.2005.

    9. There is no dispute that from his condition that policy holder is entitled to claim the policy amount if he dies within 6 months from the date of accident. In this case the patient met with accident and severe head injuries and he was dead after about 8 months. He died due to fatal head injuries on 24.12.2005. It is not the case of anybody that Rajeshwar Reddy met with another accident 6 months after the first accident and died due to those injuries. As Late. Rajeshwar Reddy was unconscious most of the time from the date of his death. It can be safely said that he died due to fatal head injuries sustained by him on 02.04.2005 at Tarnaka railway track. The main thing to be considered here is whether the deceased died due to fatal injuries sustained by him in the accident or not? Ex.A1 to A10 clearly shows that cause of death of deceased is due to head injury.
    10. As seen from Ex.A8 the complainant submitted claim application and the repudiation was in the month of 15.05.2007. This complaint was filed on 10.09.2008 within the limitation.
    SMT.SAVITA GARG
    Vs.
    THE DIRECTOR NTIONAL HEART INSTITUTE
    IV (2004) CPJ 40 (SC)
    The Honourable Supreme Court held that the Consumer Forums are primarily meant to provide better protection in the interest of consumer and not to short circuit the matter or to defeat the claim on technical grounds.

    11. From the above discussion it is very clear that the deceased died due to head injuries sustained in the accident and we see no merits in the contention of the Opp.Parties. As the patient was in Coma, strictly speaking the technical objections of 6 months can be accident till the date of death of the patient. The above decision also can safely applied to the facts and circumstances of this case. We see no grounds to reject the claim totally and accordingly the petition is allowed in part. Treating the case as Non standard claim. We feel it reasonable to award a sum of Rs.3,75,000/- to the complainant.

    12. In the result complaint is partly allowed. The Opp.Party is directed to make a payment of Rs.3,75,000/- (Rupees Three Lakhs Seventy Five thousand Only) within the period of one month from the date of pronouncement of this order, failing which the above amount will carry interest @ 12% p.a. from the date of filing of complaint and the complainant shall be at liberty to proceed against them U/S.25/27 of Consumer Protection Act 1986.
  • adminadmin Administrator
    edited September 2009
    C.C. No. 124 /2008


    Between


    R.Kesavulu Naidu,
    S/o Late R.Govindaswamy Naidu,
    Hindu, aged about 70 years,
    Business, residing at D.No.9-5-2,
    Gandhi Road, Chittoor Town & District.
    … Complainant.


    And

    United India Insurance Co., Ltd.,
    Rep. by its Branch Manager,
    Branch Office situated at D.No.10-131,
    1st Floor, Gandhi Road, Chittoor.

    … Opposite party.

    This complaint coming on before us for final hearing on 17.03.2009 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri D.Amarendra Babu, counsel for the complainant and Sri E.Seetharamaiah Chetty, counsel for the Opposite party and having stood over till this day for consideration, the Forum made the following:-

    ORDER
    DELIVERED BY Sri. V. Parthasaradhi Rao, B.A., L.L.B., President
    ON BEHALF OF THE BENCH

    This is a complaint filed by the complainant against the opposite party for recovery of an amount of Rs.6,788/- together with interest at 12% P.A., Rs.20,000/- towards compensation for mental agony and Rs.5,000/- towards cost of the complaint.

    The complainant submits that he used to pay Insurance Policy amounts regularly to the opposite party for his vehicle. The opposite party collected an amount of Rs.20,812/- stating that the premium amount was increased by the Insurance Regulatory and Development Authority. Believing the words of the opposite party, he paid the enhanced premium amount to the opposite party. He submits that the Insurance Regulatory and Development Authority increased the premium amount for transport vehicles in December, 2006 against the said orders. The transport authorities and unions made several representations against increased premium amount. The Insurance Regulatory and Development Authority considered the representations and reduced premium amount and issued a circular to collect the premium amounts as revised by the parties from 01.01.2007. The complainant submits that suppressing the said orders, the opposite party collected premium of Rs.20,812/- on 01.02.2007. After knowing the revised orders of the authority, he requested the opposite party to refund the excess premium amount of Rs.6,788/- collected from him. The opposite parties stated that they would adjust the amount of Rs.6,788/- which was excessively collected from him in the next payment of the Insurance Policy Premium. On 30.01.2008 when the complainant approached the opposite party to renew his policy for further period and requested the opposite party to receive the premium amount after deducting the above said amount, but the opposite party collected Rs.14,024/- and refused to deduct the excessively collected premium amount hence he filed this complaint for recovery of the same. He is claiming damages of Rs.20,000/- for mental agony and the same may be allowed.

    The opposite party filed written version alleging that collecting the premium amount and issuing policy are within the powers of their Company. Failure to refund excess amount paid to the opposite party does not come within the definition of deficiency in service. If the complainant is entitled for the alleged amount of Rs.6,788/-, he may approach proper Forum and not this Forum. The complainant is at liberty to take necessary action for recovery of the excess premium. There is no cause of action to file this complaint. The opposite party submits that on payment of premium amount policy was renewed. The complaint is without any merits and the same may be dismissed.

    The points for consideration are:
    1) Whether the Opposite Parties refused to adjust the exclusively collected
    Premium amount of Rs.6,788/- of the previous year in the next year
    Premium amount? If so whether it amounts deficiency in service?

    2) Whether the complainant is entitled to recover Rs.6,788/- with interest
    at 12% P.A.?

    3) Whether the complainant is entitled to claim damages of Rs.20,000/- for
    mental agony?

    4) To what result?


    The complainant filed Chief Affidavit of Pw.1 and marked Ex.A1 to A4. Ex.A1 is the copy of Policy dated 01.02.2007, Ex.A2 is the copy of proceedings of Insurance Regulatory and Development Authority dated 23.01.2007, Ex.A3 is the copy of Insurance Policy dated 30.01.2008, Ex.A4 is the requisition dated 14.02.2008.

    The opposite party filed Chief Affidavit of Rw.1.

    Points 1 to 3 :-
    The only dispute in this case is that the opposite parties collected premium amount of Rs.20,812/- on 01.02.2007 and later reduced it to old rate of premium amount of Rs.14,024/- and they have to return the exclusively collected amount of Rs.6,788/- to the complainant but the opposite parties did not refund the amount nor adjusted it in the premium amount of the next year.

    Pw.1 is the complainant himself he stated in similar lines as averred in the complaint. Similarly the opposite party stated as mentioned in their written version. The learned counsel for the complainant contends that the Insurance Regulatory and Development Authority increased the premium amount for transport vehicles in December, 2006 and he paid Rs.20,812/- towards premium amount for the period from 02.02.2007 to 01.02.2008. Later the transport authorities and unions gave representations to the Insurance Regulatory and Development Authority to reduce the Premium amount. Accordingly the authority reduced the premium amount to old rate of premium and issued circular Ex.A2 to that effect. When the complainant approached the opposite party to refund the exclusively collected premium amount of Rs.6,788/-, the opposite parties assured that they would adjust the amount in the payment of premium amount of the next year. In the next year on 30.01.2008 the complainant asked the opposite party to renew his policy for further period and requested to receive the premium after deducting the Previous excessively paid amount. But the opposite party did not choose to comply with the requests of the complainant and collected an amount of Rs.14,024/- Therefore the complainant filed this complaint for recovery of an amount of Rs.6,788/- exclusively collected premium amount.

    The opposite party stated in his Chief Affidavit that collecting premium and issuing policy are within the powers of their company. If the complainant is entitled for refund of the alleged premium amount of Rs.6,788/- he may approach proper Forum but not this Forum. The failure to refund the alleged excess amount paid by the complainant does not come within the definition of deficiency in service as alleged by the complainant. There is no cause of action and the complaint may be dismissed.

    Pw.1 stated that the Insurance Regulatory and Development Authority considered the representations given by the transport unions and reduced the premium amount to old rate of premium and issued circular Ex.A2 to that effect. He further stated that after representing the premium amount he approached the opposite party to renew his policy and receive the premium amount of the next year, after deducting the amount which was already collected for the earlier period. But the opposite party did not choose to adjust the already collected excess amount and collected an amount of Rs.14,024/- towards the next premium. Ex.A2 dated 23.01.2007 is the order of Insurance Regulatory and Development Authority. It speaks that the Authority revised the rate of premium as shown in the schedule of its circular with effect from 01.02.2007. The Regulatory Authority issued the Circular on 23.01.2007. Ex.A1 is the Insurance Policy for the period from 02.02.2007 to 01.02.2008. It shows that the opposite party collected premium amount of Rs.20,812/-. Ex.A3 is receipt for Rs.14,024/- of the premium paid on 30.01.2008 for the next year i.e. from 02.02.2007 to 01.02.2003 towards transport vehicle of the complainant. Ex.A2 is the Insurance Policy which reveals that the opposite party collected Rs.20,812/- premium amount on 01.02.2007 against the orders of authority. The authority issue orders on 23.01.2007 itself announcing the revised rates of premium. The complainant made out the case that the opposite parties failed to obey the orders of Insurance Regulatory and Development Authority, Ex.A2 and collected excess premium amount of Rs.6,788/- and the collection of excess premium amount contrary to the direction of the authority is unfair trade practice and it amounts deficiency in service. Therefore the opposite parties are directed to pay the amount of Rs.6,788/- exclusively to the complainant.
    Points 1 to 3 are answered in favour of the complainant.

    Point 4 :-

    In the result the complaint is allowed for Rs.6,788/- (Rupees six thousand seven hundred and eighty eight only) and the opposite parties are directed to pay the amount within 6 weeks from the date of this order and an amount of Rs.1,500/- (Rupees one thousand five hundred only) are allowed towards costs of the complaint.
  • adminadmin Administrator
    edited September 2009
    C.C. No. 86 /2008


    Between


    L. Venugopal S/o K.T.Lokanadhan, aged 48 years,
    Prop: M/s Sri Venkateswara Exports,
    No. 490, 4th Cross, H.M.T.Lay out, R.T.Nagar,
    80ft., Road, Bangalore, Karnataka.
    … Complainant.


    And

    1.[FONT=&quot] [/FONT]M/s United India Insurance Company Limited,
    Rep., by its Divisional Manager, Divisional
    Office, having its office at Gandhi Road Exten.,
    Chittoor.

    2.[FONT=&quot] [/FONT]M/s United India Insurance Company Limited,
    Micro Office, Kuppam, rep., by its Manager,
    Dr.No. 8-64, Vasudeva Road, Opp:Grameen Bank,
    Kuppam, Chittoor District.
    … Opposite Parties

    This complaint coming on before us for final hearing on 05.03.2009 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri S.Vijaya Bhaskar Rao, counsel for the complainant, and Sri K.Suresh counsel for opposite parties 1 & 2 and having stood over till this day for consideration, the Forum made the following:-

    ORDER

    DELIVERED BY SRI. V. PARTHASARADHI RAO, B.A., L.L.B., President
    ON BEHALF OF THE BENCH


    This is a complaint filed by the complainant U/Sec. 12 of Consumer Protection Act against the opposite parties for recovery of Insurance amount of Rs. 10,00,000/- and Rs. 2,00,000/- towards damages.
    The complainant submits that he purchased a car SKODA OCTAVIA 1.8 bearing No. KA 04 MJ 1331 and the same was insured with the opposite parties under policy No. 051681/31/05/00000502. On 26.08.2006 at about 2 a.m his car met with an accident in the limits of Sadasiva Nagar Traffic Police Station, Bangalore City. Due to the accident the driver of the car died and other inmates of the car sustained injuries. The accident was registered in Crime No. 89/06 U/Sec. 304-A I.PC by Traffic Police, Sadasiva Nagar, Bangalore City. Immediately after the accident he intimated the same to the opposite party appointed a surveyor for assessing the damages of the car. The damaged car was shifted the garage TAFF ACCESS LIMITED, St.Marks Road, Bangalore who estimated the damages as Rs. 18,62,009/-. The garage dealer collects garage rent of Rs. 250/- per day. The complainant submitted a claim form to the opposite parties in the month of September, 2006 and requested to settle the claim. As the opposite parties did not settle the claim, he gave legal notice dt. 05.03.2008 requesting the opposite parties to settle this claim. But the opposite parties did not give any response to his notice. Since the opposite parties have not settled the claim of the complainant, it amounts deficiency in service and hence he filed this complaint for recovery of the Insurance amount of Rs. 10,00,000/- and Rs. 2,00,000/- towards damages. The complaint may be allowed.

    The 2nd opposite party filed Written Version alleging that the complainant insured his car SKODA OCTAVIA 1.8 bearing No. KA 04 MJ 1331 with the 2nd opposite party for a sum of Rs. 10,00,000/- and the same is valid from 11.02.2006 to 10.02.2007. The policy was in force at the time of the alleged accident, but the liability of the 2nd opposite party is restricted by the terms and conditions stipulated in the policy. As per the terms of the policy the complainant being the owner of the vehicle shall engage the driver, who shall possess a valid and effective driving license to drive the vehicle in question. The insured has to take steps that the insured vehicle should not be driven by the driver under intoxication, if for any reason the owner of the vehicle violates the terms and conditions of the policy, the opposite parties are not liable to indemnify the loss occurred to him.

    This opposite party submits that after receiving information about the accident it has sent a surveyor for initial assessment. The surveyor assessed the loss of the damaged vehicle as Rs. 11,66,263/-, since the same is higher than I.D.V of Rs. 10,00,000/-, he suggested other amounts of settlement by way of total loss basis liability of Rs. 9,99,000/- and salvage loss basis of Rs. 8,24,000/- after taking wreck value of Rs. 1,75,000/-. The complainant has to carry out the repairs to the car and then approach the opposite parties/ company for settlement of the claim. This was not done by him. This opposite party came to know that the son of the complainant drove the vehicle at the time of accident under intoxication and the accident was occurred due to rash and negligent driving of the son of the complainant. The F.I.R confirms the same, as such the complainant violated the terms and conditions of the policy, he is not entitled to any claim. Hence complaint may be dismissed.
    The 1st opposite party adopted the Written Version of the 2nd opposite party.
    The points for consideration are :
    1.[FONT=&quot] [/FONT]Whether the opposite parties refused to settle the claim of the complainant without valid reasons ? If so, whether they committed deficiency in service ?

    2.[FONT=&quot] [/FONT]Whether the complainant is entitled to recover Rs. 10,00,000/- ?

    3.[FONT=&quot] [/FONT]Whether the complainant is entitled to claim damages of Rs. 2,00,000/- for deficiency in service ?

    4.[FONT=&quot] [/FONT]To what relief ?


    The complainant filed Chief Affidavit of PW-1 and marked Ex.A1 to A15. The opposite parties filed Chief Affidavit of RW-1 and marked Ex.B1 to B6.

    Points No.1 to 3 :-
    It is an admitted fact that on 26.08.2006 at 2.00 a.m the complainant car SKODA OCTAVIA 1.8 bearing No. KA 04 MJ 1331 met with an accident in the limits of Sadasiva Nagar Traffic Police Station Limits, Bangalore City. The traffic police of Sadasiva Nagar Registered a case in Crime No.89/06 U/Sec. 304-A I.P.C. Ex.A3 is the F.I.R with regard to accident. Ex.A1 is the Registration Certificate of the car. Ex.A2 is the Insurance Policy. Ex.A4 is the Charge Sheet and Ex.A5 is the Motor Vehicle’s Accident Report.

    It is also an admitted fact that the complainant intimated the accident to the opposite parties and the opposite parties appointed a surveyor for assessing damages of the car. The surveyor estimated the damages as Rs. 11,66,263/- as per Surveyors Report Ex.B1.

    PW-1 is the complainant, he stated that on 26.08.2006 at 2.00 a.m his car met with an accident and the said fact was intimated to the opposite parties. PW-1 also stated that he submitted a claim form to the opposite parties and requested them to settle his claim, but the opposite parties did not settle his claim. He sent the damaged vehicle to the garage and it remained in the garage from the date of accident till now. PW-1 further stated that as per the policy conditions the opposite parties is liable to pay Rs. 10,00,000/-, but the opposite parties have not settle his claim.

    RW-1 is the Assistant Divisional Manager of 2nd opposite party, he stated that the complainant insured his SKODA OCTAVIA 1.8 bearing No. KA 04 MJ 1331, with the 2nd opposite party and obtained Insurance Policy for a sum of Rs.10,00,000/-. RW-1 further stated that the Insurance company came to know that the son of the complainant drove the car at the time of the accident under intoxication and the accident occurred due to rash and negligent driving of the son of the complainant. Ex.A3 is the copy of F.I.R and it confirms the same. RW-1 further stated that the complainant violated the terms and conditions of the policy and he is not entitled for any claim.

    The learned counsel for the opposite parties contends that as per terms and conditions of the Insurance Policy Ex.A2, the ensure has to insured that the vehicle should not be driven by the driver under intoxication. If he violates the terms and conditions of the policy, the opposite party is not liable to indemnify him for the loss occurred to him. He also contends that in this case the F.I.R Ex.A3 revealed that the son of the complainant drove the vehicle under intoxication and the complainant violated the terms and conditions of the policy Ex.A2 and he is not entitled to claim the Insurance amount.

    The learned counsel for the complainant contends that the F.I.R Ex.A3 was given by third party without knowing the facts. As per Postmortem Certificate Ex.A11 and statement of eye witnesses Ex.A12 to A15, the driver of the vehicle did not consume liquor. He further contends that the F.I.R Ex.A3 is not substancial peace of evidence and it can not be the basis to decide the culpability of assailants in this case. I agree with the contention of the learned counsel for the complainant that the F.I.R Ex.A3 is not the substancial peace of evidence. Further it was given by a third party who did not see the accident. One Venkataramana swamy gave report Ex.A3 on 26.08.2006 in the morning after the accident was over stating that he learnt, on 26.08.2006 at about 2 a.m in the mid night the deceased along with his friends Prakash, Avinash, Preetham and Raghu @ Raghavendra all of them are proceeding in the car SKODA OCTAVIA 1.8 bearing No. KA 04 MJ 1331 after consuming the liquor and dashed against the stone compound of the Palace Grounds near Gayathri Gate. Therefore Ex.A5 the statement of D.Venkataramana swamy is hear say and the F.I.R Ex.A3 was not given by any eye witness. They are not basis to decide whether the deceased driver consumed liquor or not? In this regard the learned counsel for the complainant relied on the decision reported in 1996 – Crl.L.J - (S.C) – 3199 – State of Madhya Pradesh Vs. Surbhan wherein their lordships held as follows :-
    It is contended that the F.I.R mentions the names of above persons who were specifically mentioned and it lends corroboration to the evidence of PW.2. We find no substance in this contention. The F.I.R cannot be used as substantive evidence or corroborating a statement of third party, i.e P.W.2. FIR cannot be used to corroborate the evidence of PW.2. It can be used either to corroborate or for contradiction of its maker.

    In the above case their lordships held that the F.I.R can not be used as substantive evidence or corroborating statement of third party i.e PW-2. Therefore their lordships held that the F.I.R will be used either to corroborate or contradict its maker. In this case the person D.Venkataramana swamy, who gave F.I.R Ex.A3 is not even the eye witness to the occurrence, he did not know how the accident occurred. After the accident was over on the next day morning on 26.08.2006 he saw the dead body of a male lying on the stretcher of the mortuary of M/s Ramaiah Hospital and then he gave complaint. Further he stated that the deceased along with his friends were driving the car after consuming liquor and dashed against the compound wall of the Pace grounds near Gayathri Gate. The said Venkataramana swamy gave his statement Ex.B5 before Police in the same lines that he is not an eye witness to the incident and his statement is hear say and it can not be relied on. Further the eye witnesses who traveled along with the deceased gave statements Ex.A12, 14 and 15. They stated that the deceased Sathish Kumar did not consume liquor. Therefore there is no convincing and satisfactory evidence that the deceased Sathish Kumar consumed liquor.

    The learned counsel for the opposite parties contends that the complainant in this case managed the Police and obtained such statements Ex.A12, 14 & 15 contrary to the contents in F.I.R Ex.A3. He further contends that when the F.I.R Ex.A3 speaks that the deceased consumed liquor and the person who gave F.I.R made a statement Ex.B5 before Police to that effect and it should be relied on. He further contends that even if nothing was mentioned about the smell of alcohol in the Postmortem Report Ex.A11, it can not disprove the F.I.R Ex.A3. In this regard he relied on the decision reported in III(2005) CPJ – 247 – New India Assurance Co., Ltd., Vs Maria Claude Borthwisk & another wherein their lordships held as follows :-
    ……..It is not possible nor it can be expected of the Insurance Company to establish the same since after the accident the man was taken to the hospital at Neyveli and shifted to Madras hospital where he died. The intestinal contents or viscera of the deceased sere not preserved. Therefore, it may not be possible to establish or adduce any positive evidence but the fact remains that the person who rode on the bike with the deceased on that day as a pillion rider has clearly given a statement before the Police wherein he has stated clearly that they consumed liquor namely beer and whisky before proceeding further on the motor cycle and after consumption of liquor the motor cycle driven by the deceased and while they were passing near the water tank, they were hit by a lorry. It is a statement made by the pillion rider voluntarily before the police. It can definitely be relied upon for the purpose of this case. ……

    The Lower Forum has referred to the post-mortem report. The accident had taken place on 7.8.1992. He was taken to Madras on 8.8.1992. Probably he died on the same day and the post-mortem was done on 10.8.1992. Therefore, at the time of conducting post-mortem definitely the odour of alcohol cannot linger. The doctor has not mentioned about the preservation of viscera for chemical analysis. The mere fact that nothing is mentioned about the smell of alcohol in the post-mortem report or in the accident report cannot dispute the case of the opposite party. There is no motive for the pillion rider”………….

    The facts of the above case are not applicable to the facts of the present case. In the above case their lordships held that the person who rode on the bike with the deceased on that day as a pillion rider has clearly given statement before police, they consumed liquor namely beer and whisky before proceeding further on the motor cycle and after consumption of liquor the motor cycle driven by the deceased, hit a lorry. Their lordships further stated that the accident took place on 07.08.1992 and the postmortem was done on 10.08.1992, therefore at the time of conducting Postmortem definitely the odour of alcohol can not linger. The mere fact nothing is mentioned about the smell of alcohol in the postmortem report can not dispute the case of the opposite party.

    In this case the person who gave F.I.R Ex.A3 did not see the accident and his statement is hear say, he is a third person unknown to the accident. Further the Postmortem over the dead body of the deceased was conducted, immediately after the accident on the morning at 9.30 a.m itself. The Postmortem certificate speaks smells are common, mucous is also common. On the other, the witnesses who travelled along with the deceased gave statements Ex.A12, 14 & 15 that the deceased did not consume liquor. The statement of eye witnesses coupled with the Postmortem Report Ex.A11 shows that there is no convincing evidence that the deceased consume liquor at the time of the accident. Therefore the facts of the above case are not applicable to the facts of the present case.

    The learned counsel for the opposite parties further submits that the Inquest Report Ex.B5 reads that the deceased along with his friends drove the car after consuming liquor. The complainant managed the police and obtained statements Ex.A12, 14 and 15 and they can not be relied on. The observation in the Inquest Ex.B5 is nothing but what is stated in the F.I.R Ex.A3. Such an inquest report has no evidentiary value with regard to deceased consuming alcohol. On the basis of hear say statement Ex.A3 and B5 this Forum is unable to give any weight to the arguments of the learned counsel for the opposite parties that the complainant managed the police and obtained the statements Ex.A12, 14 and 15. On assessing the entire material on record, the statement of D.Venkataramana Swamy Ex.B5 is hear say and it can not be relied on. So there is no convincing evidence that the accident occurred due to the driver driving the vehicle under intoxication. Therefore I am not convinced with the arguments of the learned counsel for the opposite parties on this point.

    The opposite parties refusing to settle the claim of the complainant is not on reasonable grounds and it amounts deficiency in service. Hence the complainant is entitled to claim the Insurance amount.

    The learned counsel for the opposite parties contends that the complainant did not carry the repairs of the car, he has to carry out the repairs and then approach the opposite parties for settlement of the claim under total loss basis liability or otherwise. Since the complainant did not get his vehicle repaired the claim is not settled. The complainant is at fault. I am unable to agree with the contention of the learned counsel for the opposite parties. When the vehicle was totally damaged, where is the question of getting it repaired. The Surveyors Report Ex.B1 itself shows that the vehicle was totally damaged, he assessed the liability of repair basis would be around Rs. 11,66,263/- other than the check up items, which is exceeding I.D.V. Therefore the surveyor suggested the settlement on total loss basis. He assessed the liability on total loss basis of Rs. 9,99,000/-, he also assessed liability on salvage loss basis as Rs. 8,24,000/-. So when the vehicle is totally damaged the opposite parties can not say that the complainant did not get the vehicle repaired and he is at fault. The vehicle is not useful even if the repairs to the damaged vehicle are undertaken, it is beyond the Insurance amount of Rs. 10,00,000/-. In such circumstances this Forum reasonably assess the loss caused to the complainant on salvage loss basis as Rs. 8,24,000/- as per surveyor’s report Ex.B1.
    Points 1 to 3 are answered in favour of the complainant.


    Point No. 4:-
    In the result complaint is allowed for Rs. 8,24,000/- (Rupees eight lakhs and twenty four thousands only). Thus the complaint is allowed with costs of Rs. 1,500/- (Rupees one thousand and five hundred only). The opposite parties are jointly and severally liable to pay the said amount within 6 weeks from the date of this order, failing which it carries interest at 9% p.a.
  • adminadmin Administrator
    edited September 2009
    By Smt. Saji Mathew, Member:
    The gist of the case is as follows.
    The Complainant has bought two cows for Rs. 25,000/- financed by Wayanad Survaseva Mandalam. As per the direction of the Manager, Survaseva Mandalam the complainant has insured the cows with National Insurance Company. One of the cows died due to disease. The cow was treated by the Dr. Abdul Karim, Veterinary Surgeon, Meenangadi. The death was informed to the Opposite Party and post-mortem was conducted. The claim was preferred with all documents. But the Opposite Party refused to pay. The Complainant has spent about Rs.5,000/- for insuring the cow and for the treatment. These cows were the only means for living of the Complainant's family. So the complainant prays for an order remedying her grievances and loss.
    2.The Opposite Party has filed version and stated that the Complainant had violated policy conditions 4,5,6,7 and 8 and hence that Opposite party has no liability to pay the insurance amount. As per the version no notice was given to the Opposite party regarding the illness of the cow and no proper treatment was given to the cow. Death of the cow was not informed in time. The opposite parties also allege that the doctor's certificate is fabricated. So the Opposite Party prays for an order dismissing the complaint. The Complainant was examined as PW1 and documents were marked as Ext. A1 to A10. Opposite party's witness was examined as OPW1 and document was marked as Ext.B1.
    4. The matters to be considered are :-
    1. Whether there is any deficiency in service on the part of the Opposite parties?
    2. Whether the Complainant is entitled for any relief ?
    5. Point No.1 The Opposite party's main allegation is that the Complainant had not complied with the conditions of policy. On perusing the Ext.A2 the policy, only 2 conditions are stated in it. One is that the ear tag should be surrendered. The other conditions is that the company is not liable to pay the claim in the event of death of insured animal due to disease occurring within 15 days from the commencement of risk. In this case, the Opposite party has no allegation regarding these two conditions. Instead they have produced another set of conditions marked as Ext. B2(a). Ext.B2(a) shows that these conditions belong to another policy.

    6. Even though OPW1 affirms that the conditions are similar in all cattle insurance policies, there is no evidence to show that these conditions are put to the notice and consent of the complainant.
    7.Another allegation of Opposite Party is that the certificate issued by the doctor is fabricated and not correct. They also allege that no proper treatment is given to the cow. The doctor was examined as OPW1 and OPW1 affirms that he has treated the cow from 6.10.2006 to 10.10.2006 by visiting the Complainant's house. From 11.10.2006 to 21.10.2006 he prescribed medicine for the cow as per the information given by the Complainant. So there is no base in the allegation that the certificate Ext.B1, in fabricated and false. Here in this case, it is also noted that the claim is not repudiated. The Opposite party is just raising objection in allowing the claim and delaying the settlement of claim. This is deficiency in service on the part of the Opposite parties and Point No.1 is found in favour of Complainant.
    8. Point No.2 As per the policy Ext.B2,the insured amount is Rs. 10,000/-. The doctor's valuation of the cow also is at Rs.10,000/- (Ext.A8). The Complainant is found to be entitled to get this amount of Rs. 10,000/-.

    Hence the Opposite party is directed to pay Rs. 10,000/- on the insurance claim to the Complainant within one month from the receipt of this order. The Opposite party is also directed to pay interest at the rate of 10% on the ordered amount from the date of complaint till payment.
  • adminadmin Administrator
    edited September 2009
    REASONS POINTS 1&2: Complainant had taken an insurance policy for its employees from M/s. National Insurance Company, till 31-3-2006 subsequently, it took insurance policy from the respondent-2 for the year 2006-2007. These points are not in dispute. As per the complainant it paid premium amount to respondent-1 on 31-3-06 through DD as such that policy shall continue w.e.f. 1-4-2006 but, it has commenced from 3-5-2006 by which its employees have incurred loss and it is not beneficial to it. How far such contention is acceptable is the material point for consideration.

    In para no.5 of the complaint it is pleaded that, during the course of discussion the respondent-1 assured the complainant that, their earlier policy with M/s. National Insurance Co. will stand renewed w.e.f. 1-4-2006 itself and its employees will get the benefits from that date. In support of such contention, no document is produced by complainant to show that, respondent-2 agreed to renew or continue the earlier policy w.e.f. 1-4-2006. In the absence of acceptable material, such contention of the complainant that, since it paid premium amount on 31-3-2006 to respondent-1 as such policy shall continue w.e.f. 1-4-2006 and not from 3-4-2006, cannot be accepted. It was rightly argued for respondent-2 that, National Insurance Co and respondent-2 company are different entities. Even no material is produced by complainant to show that, an insured having insurance policy with one insurance company can continue or renew that policy with another insurance company and its effect will be the same.

    The complainant may have had an insurance policy with National Insurance Co. till 31-3-2006. Even complainant may have paid premium amount to respondent-1 on 31-3-2006 but there is no clear evidence before the forum to state that, that amount had reached respondent-2 on that day or immediately, to give effect of the policy w.e.f.1-4-2006. Respondent-1 may have assured the complainant to get renewal or continuity of the insurance policy with National Insurance Company, but whether respondent-2 had agreed for it, there is no material before the forum. It was vehemently contended for respondent-2 that, it received premium amount only on 3-5-2006 even that amount was short by some amount which was paid on 5-5-2006, as such it gave effect of insurance policy from 3-5-2006.

    Even complainant has not produced any material before the forum to state that R1 had knowledge about receipt of premium amount through DD by the respondent-1to have continuity of the policy w.e.f. 1-4-2006. On the other, when respondent-2 has received that premium amount in the month of May 2006 as such from that date of receipt of premium amount by it, it has given effect of insurance policy from that date, so no illegality is noticed with the respondent-2. Even neither complainant nor respondent-1 have produced any material to show that, respondent-1 had paid some premium amount in advance to the respondent-2 to have effect of insurance policy immediately.

    Referring to Sec.64 (V) (B) of Insurance Act of 1938 the learned counsel for respondent-2 submitted that, no risk to be assumed unless premium was received in advance. The complainant has produced a letter dtd.19-2-2009 written to other respondents stating, it had requested those respondents several times to make the policy effective from 1-4-2006 as the amount was paid and also made request to shift policy from National Insurance Company to the company of respondent-2. Mere writing such letter by respondent-1 to respondent-2 by itself cannot be said the policy was continued from 1-4-2006 and it is a renewal of the earlier policy. Collection of balance premium by the respondent-2 on 5-5-2006 is not disputed. It means the respondent-2 received full insurance policy amount on 5-5-2006. Even if it is held that, substantial premium amount was paid earlier to 5-5-2006 even then since that amount had reached R2 only on 3-5-2006 insurance policy cannot be said to have come into effect from 1-4-2006 and not from 3-5-2006.

    The complainant has further contended that, one Smt.Sangeetha w/o.Shivaji Chavvan was hospitalized and she is the wife of Sri.Srivaji Chavvan one of employees under Synd Arogya Group Mediclaim and claim petition was filed on 9-9-2006 for Rs.8001/- but it has been repudiated by the respondent-3 stating her case comes under Exclusion Clause 4.1 of the policy, So such refusal is not correct. As already stated, National Insurance Company and respondent-2 are independent and different entities as such if any premium paid to respondent-2 cannot be said to be the premium amount for continuity of earlier policy with National Insurance Company.

    The respondent-2 has specifically contended that, the policy in question issued by it was for the first time as such under the policy in question for the first year sinusitis is excluded irrespective of the date of commitment of the policy. Exclusion Clause 4.1 of the policy reads as under “ All diseases/injuries are pre existing when the cover incepts for the first time for the purpose of applying this condition, the date of inception of initial medical policy taken from any of the Indian Insurance companies shall be taken provided the renewals have continuous and without any break” In the instant case, the insurance policy of National Insurance Company is neither continued nor renewed with that insurance company and it being separate entity continuity or renewal of the policy cannot be claimed by the complainant from respondent-2. Moreover, it is not proved that, insurance premium was paid to respondent-2 on 31-3-2006 to have its effect from that day.
    In view of these reasons as per exclusion clause 4.1 of the policy Smt.Sangeeta W/o.Shivaji Chavvan will not be entitled to claim mediclaim amount. In view of these reasons deficiency in service is not noticed on the part of respondents as such the complaint is liable to be dismissed. Hence points 1&2 are answered in Negative. Point.3: In view of the finding given on points 1 and 2 proceeded to pass the following

    O R D E R


    The complaint is dismissed. However the parties are left with their own costs. (Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 26th day of March 2009)
  • adminadmin Administrator
    edited September 2009
    COMPLAINANTS 1. Mr.T.J.Kuriakose,S/o T.K.Joseph,Aged about 58 years.2.Mrs.Annie Kuriakose,W/o Mr.T.J.Kuriakose,Aged about 52 years.Both are residing at No.301,MARIA KRIPA,12/2, Richards Town,Bangalore – 560 084.Advocate – Sri.B.Sudeendranath

    V/s.


    OPPOSITE PARTIES

    1. M/s.United India Insurance Company Ltd.,Divisional Office – III,No.24, Classic Building,I Floor, Richmond Road,Bangalore – 560 025.2.

    M/s.Medi Assist India Pvt. Ltd.,No.49, Shilpa Vidya,3rd Floor, Sarakki Indl. Layout1st Main Road, JP Nagar 3rd Stage,Bangalore – 560 078Advocate – Sri.B.S.Raghu Prasad

    O R D E R

    This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to settle the insurance claim for Rs.12,294/- along with interest and pay a compensation of Rs.1,00,000/- on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant availed the services of OP.1 who covered the insurance for Rs.3,00,000/-, it was valid from 01.02.2007 to 31.01.2008. OP.2 acted as third party administrator. On 13.09.2007 complainant No.2 the wife of complainant No.1 who is the beneficiary under the policy felt giddiness and severe omitting. Hence she immediately went to Santhosh Hospital for treatment, she was administered medicine and advised for MRI scanning. Complainant No.2 felt relief hence returned back to home. But again on 15.09.2007 the said problem aggravated. She actually collapsed in the toilet, immediately she was taken to St. Johns Medical College Hospital for treatment. The doctors who examined her subjected her to various diagnostic tests in order to come to the conclusion with regard to the real suffering and ailment. She was admitted in the hospital for observation and treatment, ultimately she was discharged on 18.09.2007. On the perusal of the tests report complaint of giddiness and neck pain radiating to left upper limb is due to vertigo. Hence they gave her the treatment for the said ailment. She was also subjected for MRI. Complainant spent nearly Rs.12,294/- towards the said treatment. After the discharge they made claim to OP but unfortunately OP repudiated the said claim on the ground that the expenses incurred by the complainant is primarily for investigation and not for the treatment of any existing disease.

    Under exclusion clause 4.10 OP is not liable to pay the investigation charges hence they repudiated the said claim. Complainant felt that the said repudiation is unjust and improper. She caused the notice to the OP. Again there was no response. Thus she felt deficiency in service. Accordingly she is advised to file this complaint and sought for the reliefs.


    2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant was admitted to hospital for only clinical tests and after the said tests it was diagnosed that she suffering from Vertigo. The exclusion clause of the policy at the clause 4.10 it is specifically made clear that the investigation expenses are not covered under the policy, hence they repudiated the claim. According to OP second complainant did not under go any treatment for any kind of disease and ailment but she was admitted only for investigation purpose. All the routine tests are done. On thorough verification of the discharge summary and other hospital records and after due application of the mind OP repudiated the claim. There is no deficiency in service on the part of the OP. Complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.

    3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.

    4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainants have Proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainants are entitled for the relief’s now claimed? Point No. 3 :- To what Order?

    5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order.


    R E A S O N S


    6. At the outset it is not at dispute that the complainant No.1 being the Can Card holder took the Can Mediclaim Insurance Policy from OP.1 covering himself and wife complainant No.2. Risk covered is for Rs.3,00,000/-. The said policy was in force from 01.02.2007 to 31.01.2008. OP.2 is a third party administrator. Of course OP has not disputed the fact of issuance of the mediclaim insurance. Now it is the grievance of the complainant that on 13.09.2007 complainant No.2 felt giddiness and severe omitting, hence she went to Santhosh Hospital.
    She was administered medicine and advised for MRI Scanning. As she felt relief she returned home. If complainant had any ulterior motive they would have got admitted in the hospital but they are not greedy to make claim of unwanted expenses. The fairness of the complainant has to be appreciated.


    7. It is further contended by the complainant that on 15.09.2007 again complainant No.2 felt severe omitting and giddiness. Actually she collapsed in the toilet hence she was taken to St. Johns Medical College Hospital for treatment. The hospital records are produced. In order to know the real aliment and the disease which has resulted in the sudden collapse of the complainant No.2 she was subjected to various diagnostic tests and examinations including that of MRI Scan. It is a matter of prudence that when unconscious person who suddenly collapsed in the toilet was brought to the hospital to know the real cause the patient will be certainly subjected to various tests and examinations.
    Unless it is done, no such treatment can be given because what is the kind of disease and ailment patient is suffering is unknown. Under such circumstances we don’t find force in the allegations of the OP that the expenses incurred by the complainant are only towards investigation and not for the treatment to the disease which she was suffering.


    8. On going through the test report and investigation and MRI ultimately it was diagnosed that complainant No.2 is suffering from Vertigo which is the real cause for giddiness and neck pain radiating to left upper limb. Accordingly the medicine was administered. Hence for this simple reason we say that the complainant took the treatment for ailment and incurred the expenses of Rs.12,294/-. The supporting hospital records, documents and bills are produced including the insurance policy. With all that unfortunately OP repudiated the claim of the complainant on a technical reason and grounds.


    9. We are of the view that the said repudiation is unjust and improper without due application of the mind. Naturally complainant for no fault of her is made to suffer both mental agony and financial loss. The history discloses that she was treated in the past for cervical spondylosis?. So she did suffer from certain ailment. Accordingly she was treated and discharged.

    10. We are satisfied that the complainant is able to prove the deficiency in service on the part of the OP. Hence she is entitled for the relief. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard her sworn testimony. As against this unimpeachable evidence of the complainant the defence set out by the OP appears to be defence for defence sake just to shirk their responsibility and obligation. The approach of the OP does not appear to be fair. The hostile attitude of the OP must have naturally caused both mental agony and financial loss to the complainants. Under such circumstances they are entitled for the relief claimed. Accordingly we answer point Nos.1 & 2 and proceed to pass the following:

    O R D E R

    The complaint is allowed in part. OP is directed to reimburse the medical expenses of Rs.12,294/- and pay a litigation cost of Rs.1,000/-. This order is to be complied within four weeks from the date of its communication. Failing in which complainant is entitled to claim interest at the rate of 12% p.a on Rs.12,294/- from the date of repudiation till realization and also entitled for litigation cost.
  • adminadmin Administrator
    edited September 2009
    Consumer Complaint No. 344/2007
    Date of presentation: 14.11.2007
    Date of decision: 25.4.2009

    Dhian Chand son of Sh. Kali Dass, resident of VPO Oach Laharu, Tehsil Jaisinghpur, District Kangra (HP)
    Complainant
    Versus

    United India Insurance Company Limited through its Branch Manager at Near Red Cross building, Kachhari Add, Dharamshala (HP)

    Opposite parties
    Complaint under section 12 of the Consumer Protection Act, 1986

    PRESIDENT: A.S.JASWAL
    MEMBERS: PARDEEP DOGRA & PABNA SHARMA

    For the complainant: Sh. Vinod Kumar Jaggi, Advocate
    For Opposite party Sh. Neeraj Bhatnagar, Advocate


    A.S.JASWAL, PRESIDENT (ORAL)
    ORDER/

    In nut-shell the case of the complainant is that he had insured his cattle (hereinafter referred to as cattle), under Cattle Insurance Policy with the opposite party in the sum of Rs.5000/- for a period of three years on dated 30.3.2007. A premium of Rs.572/- had been paid to the opposite party. It is asserted that at the time of insuring the cattle, the opposite party had not affixed the tag on its ear and had assured that it would provide the same within 5-6 days. It is asserted that the said cattle fell down due to sudden skidding in the cow-shed and had died during the subsistence of the insurance Policy despite best efforts made by him. It is pleaded that after completing the necessary formalities, he submitted his claim papers to the opposite parties, but it repudiated the same on the ground of “No Tag No Claim”. In this manner, the opposite party has committed deficiency in service.


    2. The opposite party, by filing its reply, has contested the claim of the complainant by asserting that there is no deficiency in service on its part, as the complainant had committed breach of terms and conditions of the Insurance Policy. It is asserted that the cattle was not having tag in the ear at the relevant time and that it was obligatory upon the insured to put the tag in the ear of the insured cattle. It is further asserted that the claim of the complainant had been rightly repudiated by the answering opposite party on receipt of Investigation report of Shri Shanti Saroop Sharma. Thus, there is no deficiency in service on the part of the opposite party.


    3. Both the parties adduced evidence by way of affidavits and annexures in support of their contention. After hearing the learned counsel for the parties, the following points arise for determination:-
    1. Whether the O.P committed deficiency in service?
    2. Final order

    5. For the reasons to be recorded hereinafter while discussing points for determination, our findings on the aforesaid points are as under:-
    Point No.1: Yes
    Final order: The complaint is partly allowed per operative part of the order
    REASONS FOR FINDINGS
    POINT No.1


    6. Besides having gone through the written arguments filed by the complainant, we have also heard the contentions advanced on behalf of the opposite parties. In the written arguments, the complainant has specifically mentioned that at the time of insuring the cattle, the opposite party had not put the tag on its ear. However, at that time it had been assured that the tag was to be supplied within 5/6 days. As per the complainant, the act of the opposite party in not settling his genuine claim tantamount to deficiency in service and that he is entitled for the insured amount as well as other reliefs claimed by him.


    7. On the other hand, learned counsel, appearing on behalf of the opposite party has submitted that since there was no tag on the cattle, the opposite party rightly repudiated the claim of the complainant on the ground of “No Tag No Claim”. In these circumstances, there is no deficiency on the part of the opposite party, who, on having got the information regarding the death of cattle, had appointed its Investigatory to do the needful.


    8. When the reply filed by the opposite party is considered, it is highlighted that no where it has been asserted that at the time of insuring the cattle, the tag had been affixed on its ear. There is no such averment that the tag had been given to the complainant for being affixed on the cattle. Undoubtedly, the opposite party has relied upon the proof affidavit of Sh. Ram Singh, Ex.OPW1, but even in this affidavit, it has not been stated on oath, that the tag had been affixed on the ear of the cattle, which had been insured by the opposite party. In the absence of such proof, the contention of the complainant that at the time of insuring the cattle, the tag had not been affixed, could not be straightway brushed aside. We may observe that by way of his proof affidavit, Ex.CW1, the complainant has supported all the facts, as mentioned in the complaint on oath including that at the time of insuring the cattle, the tag had not been affixed on the ear of cattle.
    On record, the complainant has brought health/soundness certificate of the cattle, which is Annexure C-2. In this certificate, the description of the cattle has been mentioned. Annexure c/-1 is the insurance policy of the cattle, allegedly insured by the complainant. Its perusal goes to show that tag number 6049 had been issued to the cattle by the insurance company. We may like to observe that it was the bounden duty of the opposite party to have got affixed the tag on the ear of the cattle. Annexure OP-2 is the report given by Investigator Sh. Shanti Sawroop, which also goes to show that the animal which had died had been issued tag No.6049 but before the same could have been affixed on the ear of the animal, it died. From the evidence, which has come on record, it is abundantly clear that a tag number 6049 had been issued by the opposite party to the cattle of the complainant. The version of the complainant is to this effect that the said tag pertained to the cattle, which died before the same could be affixed on its ear.

    This version of the complainant has not been rebutted by the opposite party for want of cogent and reliable evidence. Even the opposite party has not brought on record any such evidence which could go to show that besides the cattle in question, the complainant is having other buffalo. Even no efforts have been made by the opposite party to bring on record such evidence that the cattle which had died, was not the same which had been allegedly insured vide tag No.6049. In these circumstances, the genuine of the claim of the complainant cannot be denied on the basis of “NO Tag No Claim. We may reiterate that it was the duty of the opposite to have affixed the tag on the ear of the cattle in question. Thus, the opposite party has not applied its mind to the facts of the present case, and illegally and arbitrarily rejected the genuine claim of the complainant. This is nothing but great deficiency in service.


    9. Now, how this deficiency can be cured? We are of the view that the ends of justice will be met, in case the opposite party is directed to pay the insured amount to the complainant within 30 days after the receipt of copy of this order, failing which it will carry interest @ 9% per annum from the date of complaint, till its realization. Due to deficiency in service, the complainant has also suffered mental pain, agony and inconvenience and the ends of justice will be met in case, the opposite party is directed to pay compensation, which is quantified at Rs.3000/-. Hence, Point no.1 is answered partly in affirmative.


    10. No other point argued or urged before us.


    RELIEF
    11. In view of our findings on point 1, above the complaint is partly allowed and we order the opposite party to pay the insured amount to the complainant within 30 days after the receipt of copy of this order failing which it will carry interest @ 9% per annum from the date of complaint till its realization. The opposite party is also directed to pay compensation to the complainant to the tune of Rs.3000.-. The complaint is allowed alongwith litigation costs of Rs.2000/-
  • adminadmin Administrator
    edited September 2009
    Raghav Aggarwal aged 25 years s/o Anil Kumar Gupta resident of Hoshiarpur Roller Flour Mills Pvt. Ltd. Naloian Bye Pass Tehsil and District Hoshiarpur.




    Complainant


    vs.


    1. United India Insurance Co.Ltd., Divisional Office-92, The Mall, Ludhiana through its Divisional Manager.
    2. United India Insurance Co. Ltd., Divisional Office, Jalandhar Road, Hoshirpur through its Divisional Manager.


    Opposite parties

    1. The complainant namely Raghav Aggarwal has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the the complainant alongwith his parents Anil Kumar Gupta and Kusam Lata Gupta and brother Gautam Aggarwal took the joint medi claim policy from OP No.1 for a sum of Rs.2 lac on payment of premium of Rs.2469/-. The said policy was valid from 23.2.2003 to 22.2.2004. In the above said policy, the name of Raghav was inadvertantly mentioned as Rishav. That the complainant filled the regular proposal form and disclosed the true facts of each insured person regarding their disease and illness. The OP No.1 accepted the proposal form, and thereafter issued the said insurance policy. The said insurance policy was got renewed from 23,2.2004 to 22.2.2005,23,2,2005 to 22.2.2006, 23.2.2006 to 22.2.2007 and 23.2.2007 to 22.2.2008. The said policy is continuing for the last five years, as such, as per terms and conditions, the exclusion clause was waived. That in the first two policies, the OPs have mentioned the bonus amount of Rs.20,000/- but in the last three policies w.e.f. 23.2.2005, the bonus amount has not been recorded.
    2. It is the allegation of the complainant that he developed some heart problem in the month of April,2007 and got himself admitted in Escorts Heart Institute and Research Centre, New Delhi on 27.4.2007.The information regarding the hospitalization was given to OP No.1 by Sh Gautam Aggarwal, the brother of the complainant on 30.4.2007. The complainant remained admitted in the hospital from 27.4.2007 to 1.6.2007. The complainant paid a sum of Rs. 5,16,655/- as hospital charges vide bill dated 1.6.2007, and thereafter, he lodged the claim with OP No.1 and also completed the other formalities. The OP No.1 did not settle the claim, thus, the complainant wrote a letter dated 13.2.2008 to OP No.1 to settle the claim. OP NO.1 instead of settling the claim, informed the complainant that claim intimation letter 30.4.2007 has not been received and directed him to send all the claim papers. The complainant on receipt of the said letter, gave a detailed reply alongwith photocopy of claim intimation letter dated 30.4.2007 showing the receipt of the said letter by the official of OP No.1. However, the complainant again supplied the copies of relevant documents to OP No.1 on 29.5.2008 with the request to settle the claim within 15 days but more than 150 days have elapsed.. That the delay in settling the claim on the part of OP NO.1 amounts to deficiency in service , hence this complaint.
    3. OPs filed the reply. Preliminary objections vis-a-vis maintainability, cause of action, jurisdiction and complaint is pre-mature as the complainant never lodged any claim with OP No.1 regarding his hospitalization on the prescribed claim form alongwith medical treatment were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the liability of the insurance company is governed by the terms and conditions of the insurance policy. That no documents of hospitalization and medical treatment were ever supplied by the complainant to the replying OPs. The insured and insurer are governed by the contract of insurance.
    4. In order to prove the case, the complainant tendered in evidence affidavit Ex.C-A, copy of medi claim policies from 23.2.2003 to 22.2.2008 Mark C-1 to C-5, intimation letter dated 30.4.2007 Mark C-6, discharge certificate Mark C-7, final bill of Escort Hospital Mark C-8, receipts of Escort Hospital Mark C-9 to C-13, letter dated 13.2.2008 Mark C-14, dated 24.3.2008 Mark C-16, postal receipt Mark C-15, dated 14.5.2008 Mark C-17, postal receipt Mark C-18, dated 20.5.2008 Mark C-19, 29.5.2008 Mark C-20, postal receipt Mark C-21, copy of judgment dated 6.10.2008 Mark C-22, letter dated 1.2.2008 Mark C-23,dated 12.2.2008 Mark C-24 and endorsement of policy Mark C-25 and closed the evidence.
    5. In rebuttal, the opposite parties tendered in evidence affidavit of Jagtar Singh Ex. OPW1/A, insurance policy Ex. OP-1 and letter dated 24.11.2008 Mark OP-2 and closed the evidence.
    6. The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the case minutely.
    7. The admitted facts may be noticed thus:
              1. That the complainant took the joint medi claim policy from OP No.1 for a sum of Rs.2 lac Mark C-5.
              2. That the claim of the complainant was repudiated on 20.3.2009.
    1. 8 The OPs have repudiated the claim of the complainant on the ground that after going through all the papers , Doctor T.L. Gupta has submitted in his report that the disease for which the claim was lodged is a congenital disease and the insured was having the knowledge of the disease while taking the policy, which is concealment of facts, as such, the only point which calls decision from this Forum is whether the claim is covered by the exclusion clause? The answer to this is in the negative.
      9 Mark C-1 to Mark C-5 are the medi claim policies obtained by the complainant from the OPs for the years 23.2.2003 to 22.2.2004. 23.2.2004 to 22.2.2005, 23.2.2005 to 22.2.2006, 23.2.2006 to 22.2.2007 and 23.2.2007 to 22.2.2008 respectively. The close scrutiny of repudiation letter makes it clear that the OPs have repudiated the claim on the ground “ That after going through all the papers , Doctor T.L. Gupta has submitted in his report that the disease for which the claim was lodged is a congenital disease and the insured was having the knowledge of the disease while taking the policy, which is concealment of facts.” Section 4 of the terms and conditions of the policy Mark C-5 is reproduced for the purpose of convenience:
    4. Exclusions:
    The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of;
      1. All diseases/ injuries which are pre existing when the cover incepts for the first time . This exclusion will be deleted after three consecutive continuous claims free policy years provided there was no hospitalization for the pre existing ailment during these three years of insurance.”
    1. 10 The reading of clause 4 referred to above of the terms and conditions of the policy makes it clear that all diseases/ injuries which are pre existing when the cover incepts for the first time ,this exclusion will be deleted after three consecutive continuous claims free policy years provided there was no hospitalization for the pre existing ailment during these three years of insurance.”
    2. It is not the case of the OPs that the complainant was not the holder of medi claim policies for the three consecutive continuous claims free policy years. It is also not the case of the OPs that there was hospitalization of the complainant for the pre existing disease during these 3 years of insurance, therefore, clause 4.1 of clause 4 of the terms and conditions qua Mark C-5 are fully attracted to the facts and circumstances of the present case , as such, it can be held without any hesitation that OP No.1 had repudiated the claim wrongly on the ground that the complainant was having pre existing disease. It is held that under the given situation, the said exclusion clause stands deleted , as such, the defence raised by the OPs goes to the ground.
    3. Admittedly, the sum insured is Rs.2 lac qua Mark C-5. The complainant has produced on record the receipts of medical bills Mark C-9 to Mark C-13 of Escort Hospital . The complainant has also produced the final bill of Escort Hospital Mark C-8 for net amount of Rs.5,00,905/-. Since the complainant has obtained the medi claim policy for Rs.2 lac only qua Ex.OP-1, therefore, he cannot claim more than 2 lac from the OPs.
    4. As a result of the above discussion, it is held that the OPs have illegally repudiated the claim of the complainant, which amounts to deficiency in service, with the result, the complaint is accepted and the OPs are directed to pay the claim amount of Rs. two lac to the complainant with interest @ 9% per annum from the date of filing the complaint i.e. 30.10.2008 till realization alongwith litigation expenses of Rs.1000/- within one month from the receipt of copy of the order.
  • adminadmin Administrator
    edited September 2009
    Paramjit Kaur widow of Sh. Kuldeep Singh son of Sh. Ishar Singh, resident of 456, Jagjit Nagar, Threeke Road, Ludhiana.
    ….Complainant.
    Versus

    1- United India Insurance Company Limited, Divisional Office IV, Savitri Commercial Complex-1, G.T. Road, Dholewal, Ludhiana through its Senior Divisional Manager.
    2- United India Insurance Company Limited, Regional Office, 136, Feroze Gandhi Market, Ludhiana through its Regional Manager.

    ….Opposite parties.

    COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

    Quorum:
    Sh. T.N. Vaidya, President.
    Sh. Rajesh Kumar, Member.

    Present: Sh. Parveen Talwar Adv. for complainant.
    Sh. M.R. Saluja Adv. opposite parties.
    O R D E R

    T.N. VAIDYA, PRESIDENT:

    1- Sh. Kuldeep Singh husband of complainant (hereinafter, to be referred as “insured”) obtained personal accident insurance policy bearing no.201000/42/02/00484, effective from 25.10.2002 to 24.10.2003, from opposite party insurance company. He obtained cover of Rs.10 lacs and in addition, was entitled to accumulative bonus @ 5% on the sum assured for previous year, as no claim was made in the previous year. Sh. Kuldeep Singh died in a road accident on 3.9.2003. Claim under the policy was lodged with opposite party, vide letter 22.9.2003. They after about 8 months, vide letter dated 29.4.2005, only sanctioned claim of Rs.217370/-, despite insurance coverage of Rs.10 lacs. Complainant represented that would be entitled for Rs.10 lacs alongwith Rs.50000/- cumulative bonus and requested for release of entire amount. But they did not agree. Hence, claimed in this complaint under section 12 of the Consumer Protection Act, 1986, that act of opposite party was wrong, arbitrary and illegal. No terms and conditions of the policy was ever supplied or delivered to her. Hence, by not clearing her claim under the policy, opposite party are guilty of deficiency in service and resultantly, liable to pay Rs.10.50 lacs alongwith Rs.50000/- for deficiency in service and Rs.5000/- as litigation costs.


    2- Opposite party in reply admitted obtaining accidental insurance policy by husband of complainant, lodging claim under the policy after death of her husband. Also conceded approving claim for Rs.217370/-, which amount was offered, but complainant refused to receive the same. Her entitlement was for Rs.217370/- under the terms and conditions of the policy, assessed after obtaining income tax returns of the insured, by their surveyor and investigator. The insured as per income tax returns dated 6.2.2001, had shown income of Rs.43714/-. The insured had taken insurance policy in excess of his income. Maximum liability of the company was to be calculated on the gainful income of the deceased insured, as declared by him to the income tax authority. Therefore, on the basis of income tax returns of the deceased husband of complainant, claim was settled for Rs.217370/-. Earlier to this policy, the insured had taken policy from National Insurance Company for Rs.2 lacs effective from 20.10.2000 to 19.10.2001. He with malafide intention, got the policy for Rs.10 lacs, which was in excess of his gainful income. Hence, there is no deficiency in service on their part and complaint deserves dismissal.


    3- Both parties adduced evidence in support of their claims by way of affidavits and documents. We have heard ld. counsel for parties and have carefully gone through the entire record.


    4- It is admitted that husband of complainant had obtained from opposite party, accidental insurance policy of Rs.10 lacs. It is not disputed or denied that he had died in an accident and thereafter, complainant lodged claim under the policy with opposite party. Opposite party under terms and conditions of the policy, copy of which is Ex.R2, sanctioned and passed an amount of Rs.217370/-, but she refused to receive the same.


    5- In the light of aforesaid aspects, the only matter for our consideration is whether the claim under the policy, was rightly assessed and paid by opposite party to the complainant. For such purpose, we shall have to look into terms and conditions of the policy Ex.R2, placed on the record.


    6- Before we glance this policy Ex.R2, may highlight that no proof has been adduced by opposite party, qua sending copy of policy, containing terms and conditions to the insured or that it was delivered to him or the complainant. Neither opposite party has adduced any evidence qua sending copy of the policy to the complainant by post. In these circumstances, we believe version of the complainant that terms and conditions of the policy were never delivered either to the insured or to the complainant. Only the insured was delivered cover note, copy of which Ex.C2.


    7- Argued on behalf of opposite party that parties to the insurance policy would be bound by terms and conditions of the agreement. In support, drew our attention to a case reported in Vijay Kumar Salwan Vs Life Insurance Corp. of India 1998(2) CPC-536 (PunjabState Commission). But with due respect, we venture to record that it would have no bearing to the case in hand. As opposite party had only provided to the insured, cover note Ex.C1 and never furnished him copy of policy containing terms and conditions. Unless and until, such thing was done by them, complainant would not be bound by the unilateral terms and conditions, which they never brought to the notice of the insured.


    8- Hon’ble OrissaState Commission in New India Assurance Co. Ltd. & Anr. Vs Patitapaban Karan 2008(1)CLT-177(Orissa State Commission), has held that where insurance company has not adduced any evidence to prove that exclusion clause of policy were brought to notice of complainant, reliance of insurance company on exclusion clause, is of no avail.


    9- Same view was held by the Hon’ble U.T. State Commission, Chandigarh in New India Assurance Co. Ltd. Vs Saroj Sian & Anr. 2008 (1) CLT-178 (UT Chandigarh), wherein, it was held that insurance company was liable under the policy, as exclusion clause was not disclosed to the insured and it was not part of the policy.

    10- So, it is cardinal principle of law that insured would be bound with the terms and conditions of the policy, if it has been made available to him, otherwise not.


    11- At this stage, we may state that qua accidental death of the insured, FIR Ex.C4 was registered and thereafter, post-mortem of the body was also got done, vide post-mortem report Ex.C5.


    12- Now, we shall advert to duplicate copy of individual personal accident policy, pertaining to insured husband of the complainant Sh. Kuldeep Singh. In these terms and conditions of the policy, there is no such condition printed that liability of the opposite party would be restricted to capital sum insured for Table IV 24 month’s proven gainful income or SCI whichever is less; (ii) for Table I to IV(Combined) 60 month’s proven gainful income of capital sum insured, whichever is less. These words in this printed policy, have been inserted by way of fixing rubber stamp. No material is placed on the record by opposite party, when such stipulation was added to the terms and conditions of the policy, which they did not place in original printed form. But appears to be added subsequently, by putting a rubber stamp, pertaining to conditions of the policy. According to ld. counsel for complainant, such stamped conditions were inserted for future individual personal accident policy of the opposite party w.e.f. the year 2006. Whereas, the case pertains prior thereto, as the policy covers period w.e.f. 25.10.2002 to 24.10.2003. Opposite party failed to show us any instructions, notification when such conditions were made part of policy, by way of rubber stamp. Therefore, we have no reason to disbelieve contention of the complainant.

    13- In view of aforesaid reasons, we are of the view that opposite party was not justified, to apply conditions of the policy mentioned thereon, by way of rubber stamp, to restrict claim to Rs.217370/- only on the basis of income of the insured, as mentioned by him in his income tax returns, copy of which is Ex.R12. Specially, we are also taking such view for additional reasons that these terms and conditions of the policy, were never conveyed by opposite party to the insured, nor they supplied copy of the insurance policy to him. In the light of above discussion, we are of the firm view that as insured husband of complainant had died in accident, so opposite party would be liable to honour the policy vide which, he had got himself insured for Rs.10 lacs. By not paying the amount under the policy, opposite party would be guilty of not rendering proper service to its own consumer.


    14- Sequel thereto, we allow the complaint and as a result, direct opposite party to pay insurance amount of Rs.10,00,000/- (Rupees Ten Lacs) to the complainant alongwith bonus as per admissible under the policy, within 45 days of receipt of copy of order. We don’t pass any order as to compensation, but order opposite party to pay litigation cost of Rs.2000/- to the complainant.
  • adminadmin Administrator
    edited September 2009
    CC.No:206/2008
    BETWEEN:
    K. Susanna Kumari,
    W/o late Prasad Babu, house wife,
    Hindu, aged 40 years,
    R/o. D.No.5-25-33/3,
    Mery Christianpet,
    Behind/LTD Guest House,
    Perala Post, Chirala Mandal,
    Prakasam District. ... Complainant.
    Vs.
    The Branch Manager,
    M/s. United India Insurance Company,
    Trunk Road, Hindu, R/o Trunk Road,
    Biruduraju Towers, Ongole,
    Prakasam District. …Opposite party.


    COUNSEL FOR COMPLAINANT: SRI D. KRISHNA MOHAN,
    ADVOCATE, ONGOLE.

    COUNSEL FOR OPPOSITE PARTY: SRI S. RAGHUNADHA REDDY,
    ADVOCATE, ONGOLE.

    This complaint is coming on 07.04.2009 for final hearing before us and having stood over this day for consideration this Forum delivered the following:
    ORDER:
    1. This is a complaint filed by the complainant under Section 12 of Consumer Protection Act, 1986 directing the opposite party to pay the insurance amount of Rs.1,00,000/- together with interest and costs of litigation to the complainant.

    2. The averments in the complaint are as fallows: The husband of the complainant K. Prasad Babu submitted proposal form for obtaining Janatha Personal Accident policy for Rs.1,00,000/-. The opposite party calculated the premium amount as Rs.288/- and the husband of the complainant paid premium regularly. The policy was for a period of 5 years from 20.06.2002 to 19.06.2007. Unfortunately, the husband of the complainant met with an accident and died on 07.04.2007 same was informed to the police and the crime was registered. The complainant claimed the insurance amount under the policy and the opposite party conducted enquiry and satisfied with the conditions. During scrutiny it was found that in the policy the sum assured was mentioned as Rs.10,000/- instead of Rs.1,00,000/- due to the mistake committed by the concerned person who prepared the policy. After the type mistake was brought to the notice of the opposite party they agreed to rectify the mistake and promised to pay the policy amount of Rs.1,00,000/- to the complainant. But, they have been postponing the same on some pretext or the other. The complainant issued legal notice to the opposite party on 15.05.2008 and the opposite party received the notice and gave reply without rectifying their mistake. In fact on the very same day nearly 80 Government Vehicle Drivers applied for the same policy for Rs.1,00,000/- and the opposite party issued policy for an amount of Rs.1,00,000/- to all the drivers. Unfortunately, the complainant’s husband policy was prepared wrongly. It is a primafacy mistake committed by the opposite party. Hence, the complainant is constrained to file the present complaint against the opposite party.

    3. The opposite party filed its counter contending as fallows: The allegations made in the complaint are all false. The opposite party issued policy for Rs.10,000/- and the complainant being the nominee is entitled to receive only Rs.10,000/- from the opposite party. On 27.03.2007 at about 7.00 P.M the deceased while returning home reached Annavarappadu Railway Crossing Gate and while crossing the Railway Track he slipped and fell down on the Railway Track and received injuries and died on 07.04.2007 while undergoing treatment. As per the F.I.R and Panchanama the deceased was in intoxication condition and as per the policy conditions the claim was not payable and the same was intimated to the complainant. For the foregoing reasons the opposite party prays the court to dismiss the petition.

    4. On behalf of the complainant Exs.A1 and Ex.A2 were marked. The Ex.A1 is the Proposal form and Ex.A2 is the Policy Schedule. No documents are marked on behalf of the opposite party

    5. The point for consideration is whether the complainant is entitled for the reliefs in the complaint.

    6. The learned counsel for the complainant argued that the husband of the complainant had taken Janatha Personal Accident Policy for Rs.1,00,000/- and the opposite party calculated the premium as Rs.288/- and the insured paid the premium regularly. Unfortunately, the insured met with an accident and died on 07.04.2007. When the complainant submitted claim for the policy amount opposite party stated that policy was issued only for Rs.10,000/- and not for Rs.1,00,000/- and therefore, they are liable to pay only Rs.10,000/- to the complainant. He further argued that the insured submitted proposal form for taking policy for Rs.1,00,000/- and the opposite party calculated the premium payable on Rs.1,00,000/- as Rs.288/- and accordingly the insured paid the premium. He further argued that while preparing the policy the sum assured was wrongly typed as Rs.10,000/- instead of Rs.1,00,000/- by the concerned official and the opposite party without admitting their mistake refused to pay Rs.1,00,000/- to the complainant.

    7. The opposite party contented that they issued policy for Rs.10,000/- and they are liable to pay only Rs.10,000/- and not more than that.

    8. The complainant relied upon Ex.A1 proposal form to prove her case. As per the proposal form submitted by the insured the policy was taken for the sum assured of Rs.1,00,000/- and on this amount opposite party computed net premium as Rs.288/-. The policy was for 5 years from 20.06.2002 to 19.06.2007 accordingly the insured paid premium till his death. If the sum assured is Rs.10,000/- the premium would be much less. Calculation of premium on Rs.1,00,000/- and receiving premium on Rs.1,00,000/- supports the case of the complainant that the opposite party wrongly typed the amount as Rs.10,000/- instead of Rs.1,00,000/- while preparing the policy. The insured might not have noticed the same. On the innocence of the insured the opposite party cannot take any advantage. It is not the case of the opposite party that they did not receive premium of Rs.288/- from the insured. They admitted that they received premium of Rs.288/-. The Ex.A1 shows that Rs.288/- is calculated as premium on the sum assured of Rs.1,00,000/-. Having received the premium on the sum assured of Rs.1,00,000/-. Now, the opposite party cannot say that the policy was issued for Rs.10,000/-. The policy is a Group Insurance Policy and about 80 Government Vehicle Drivers including the insured obtained policies on the same day and the opposite party issued policy for Rs.1,00,000/- each to all the Government Vehicle drivers. Unfortunately, there was a mistake in the policy issued to the insured in this case. The sum assured is wrongly typed as Rs.10,000/- instead of Rs.1,00,000/- in the policy issued to the insured. Opposite party should be fair enough to accept the mistake and pay the policy amount to the complainant instead of harassing the complainant.

    9. For the foregoing reasons I am of the opinion that the opposite party is liable to pay the policy amount of Rs.1,00,000/- to the complainant.

    10. In the result, petition is allowed and the opposite party is directed to pay the policy amount of Rs.1,00,000/- and Rs.1,000/- towards costs of litigation to the complainant within Two months from the date of order. Failing which, the opposite party is liable to pay interest @ 9% p.a., till realization.
  • adminadmin Administrator
    edited September 2009
    CONSUMER COMPLAINT NO.88/2008.
    Friday, the 24th day of April, 2009.
    Between:
    1. N.Nageswara Rao, S/o. Ratnam,
    Hindu, 48 years, D.No.11-21,
    Konkapalli Anjaneya Swamy Temple,
    Amalapuram.

    2. Nalam Manga Tayaru,
    W/o. N.Nageswara Rao, 46 years,
    D.No.11-21, Konkapalli Anjaneya
    Swamy Temple Lane, Amalapuram. ...Complainants.
    A N D

    1. Andhra Bank, Dwarapudi Branch,
    Rep. by its Branch Manager.

    2. United India Insurance Co. Ltd.,
    Divisional Office, Rep. by its
    Divisional Manager, Office No.4,
    II Floor, Ponnett Bhavan,
    Ramkote, Hyderabad. … Opposite parties.


    This case is coming 20.03.2009 for final hearing before this Forum and upon perusing the complaint, version of the opposite parties and other material papers on hand and upon hearing the arguments of Sri Y.V.S.N.Prasad, advocate for the complainants 1 and 2 being represented by Sri K.V.V.S.Narayana Swamy, advocate for the Opposite party 1, Sri B.Ramesh, advocate for the opposite party 2 having stood over for consideration till this day, this Forum has pronounced the following.
    ORDER


    (PER SRI A. MADHUSUDANA RAO, MEMBER)

    This is a complaint filed by the complainants under Section 12 of the consumer Protections Act to direct the opposite parties jointly and severally to pay the insurance claim of Rs.25,000/- with interest from 26.11.2006 till payment, to award compensation of Rs.10,000/-, costs of the complaint and other reliefs.


    2.The case of the complainants as set out in the complaint is that the first
    complainant was the nominee and father of the deceased Nalam Naga Venkata Kali Krishna Bhagavan and the 2nd complainant is the mother of deceased. The deceased policy holder died on 26.11.2006 as he was hit and run over by unknown train at KM 599/6-8 near Dwarapudi railway station. The deceased was holder of ASB a/c vide No.2793 of 1st opposite party bank and there is a coverage of insurance for accidental death of account holder of the bank. After the death of account holder i.e the deceased the first complainant being nominee applied for insurance claim to the 2nd opposite party herein to indemnify through the 1st opposite party. But, the 2nd opposite party refused the claim on untenable grounds. The deceased is only the bed winner of complainants family. The deceased was hale and healthy and there was no circumstances prevailed to commit suicide. The investigation authorities closed the further investigation expressing doubt that the deceased committed suicide without any reasonable cause or evidence. Basing on the investigation reports the 2nd opposite party refused the claim of the complainants. Hence, this complaint.


    3. Both the opposite parties filed their written versions. The 1st opposite party in its version denied all the main and material allegations made in the complaint and stated that the complaint is not maintainable either under law or on facts. The 1st opposite party submitted that the complainants are put to strict proof of their allegations. It is true that the deceased during his life time opened Abhaya Savings Bank Account on 21.09.2005 with the 1st opposite party vide a/c No. 2793 and the 1st complainant herein was nominee. It is further submitted that for ASB a/c holders there is an insurance coverage for accidental death of a/c holders. This 1st opposite party’s bank had a tie up with this 2nd opposite party for insurance claim of ASB a/c holders and the insurance coverage is for Rs.25,000/- for accidental deaths only and there is no coverage for natural deaths. The insurance here commence from 1st September to 31st August of the succeeding year and the premium amount is Rs.18/- per year. This opposite party has nothing to do with the settlement of insurance claim and the 2nd opposite party is solely responsible for the same as the bank is only a facilitator.
    It was further submitted that as per the terms and conditions of the above said ASB account the claim information should be given to this opposite party directly with in 90 days and the documents relating to the claim with in 180 days from the date of accidental death/injury. The complainants approached this 1st opposite party and submitted the information and documents and the same were sent to the 2nd opposite party along with a letter dt 08.05.2007 for settlement of insurance claim and this opposite party contacted the insurance company from time to time for settlement of claim of the complainants. As such, the 2nd opposite party repudiated that the claim of the complainants vide their letter dt 12.12.2007 on the ground that the death of the deceased is not accidental but a case of suicide as per the circumstantial evidence and investigation reports and so as per exclusion clause No.7-A the 2nd opposite party repudiated the claim. So, under the above stated circumstances this opposite party did not commit any deficiency of service. Hence, the Honourable Forum may be pleased to dismiss the complaint against this 1st opposite party with costs.
    The 2nd opposite party in its version denied all the allegations made in the complaint and stated that the complaint is not maintainable under law and on facts. It was further submitted by the 2nd opposite party that the claim of the complainants is not payable as per exclusion cause No.7A of the policy because the death was suicidal but not an accident. Further, it was submitted that the complainants failed to submit necessary proofs further the cause of the death of the deceased with supported material papers to this opposite party towards their claim. It is submitted that as per the private investigations of this opposite party insurance company death of the deceased person was suicide and the police investigation also expressed the same view, therefore the death was not an accidental and so the claim was repudiated by this opposite party.
    The complainants are put to stick proof with supported documents for the cause of the death of the deceased as accident and the burden lies on the complainants to establish the real facts under what circumstances the deceased died. The inquest report and other circumstances through investigation reveals that the death occurred due to suicide. It is further submitted that this complaint in not maintainable in this Forum for proper adjudication of the matter in dispute because this opposite party disputed the nature and cause of death of the deceased and this matter has to decided in the Civil Court for examining witnesses and to take elaborate evident. Therefore, in view of the above facts this opposite party prays the Hon’ble Forum to dismiss the complaint in limini in the interest of justice.


    4. Heard both the parties. The opposite parties filed their written arguments.

    5. Points to be considered in this case are that;

    1. Whether there is any deficiency in service on the part of the opposite parties?
    2. Whether the complainant is entitled for the claim amounts and other
    reliefs asked for? If so, to what extent?


    6. Exs.A.1 to A.6 are marked on behalf of the complainant and Exs.B.1 to B.5 are marked for 1st opposite party and Exs.B.6 to B.9 are marked for 2nd opposite party.


    7. Admitted facts in this case are that the deceased during his life time opened Abhaya Savings bank account on 21.9.2005 vide Ex.A.2 Passbook=Ex.B.1 with the 1st opposite party branch vide A/c No.2793. The deceased account holder and son of the complainants herein died on 26.11.2006 vide death certificate issued by the Gram Panchayat, Dwarapudi appended in Ex.A.2 and death report vide Ex.A.3. The 1st complainant herein was the nominee and for the said Abhaya Savings Bank account there is coverage for accidental death of account holders. The insurance coverage is at Rs.25,000/- for accidents only and natural death is not covered. The 1st opposite party contacted the 2nd opposite party for the settlement of claim vide Ex.B.4,B.5 letters of the deceased preferred by the complainant. The 2nd opposite party finally repudiated the claim vide their letter Dt.12.12.2007 under Ex.A.1=Ex.B.8.


    8. POINT NO.1: The case of the complainants herein is that their son by name Nalam Venkata Kali Krishna Bhagavan died as bachelor on 26.11.2006 due to hit and run by unknown train near Dwarapudi Railway station. Further, the deceased was an ASB account holder of the 1st opposite party and under coverage of insurance with the 2nd opposite party in case of accidental death. As such, when the complainants preferred a claim with the 2nd opposite party through the 1st opposite party after death of the deceased, the same was repudiated by the 2nd opposite party stating untenable reasons.

    Whereas, the 1st opposite party contended that they sent the claim form submitted by the complainants to the 2nd opposite party who has to settle the claim of the complainants and the claim was repudiated by the 2nd opposite party as per their terms and conditions and this 1st opposite party is no way concerned with the same.

    The 2nd opposite party contended that the deceased person and the policy holder has committed suicide as per their private investigations and the police also expressed the same view and therefore the death is not an accidental death, but it was suicidal case and so, this opposite party has no liability for the claim, hence repudiated the same on the terms and conditions of the policy. The complainants failed to prove the death of the deceased policy holder with supported material papers towards their claim and there is no deficiency in service on the part of this opposite party.

    On perusal of the record it is found that the complainant’s deceased son operated an ASB account with the 1st opposite party bank and the deceased was under coverage of insurance of Rs.25,000/- for accidental death with the 2nd opposite party insurance company under tie up between the 1st and 2nd opposite parties herein. Further, it is also found that the 1st opposite party submitted the claim of the complainants with all necessary certificates on 8.5.2007 vide Ex.B.4 to the 2nd opposite party insurance company and further send a reminder Dt.1.9.2007 vide Ex.B.5. As per the record it is found that the deceased died on 26.11.2006 at KM.599/6-8 near Dwarapudi Railway station and the death report Dt.8.12.2006 issued by the Govt. Railway police Authorities under Ex.A.3 in which it was mentioned that the cause of death was due to accident. Further, in the FIR filed under Ex.A.5 also reveals that a case was registered U/Sec.174 Cr.P.C (Suspicious death), it is also found in Ex.A.6 inquest report prepared by the GRP Authorities also did not reveal the cause of death. But, in the said report it was clearly stated that the deceased was a deaf person by birth and further the deceased suffering unbearable stomach ache and for which he might crossed the railway track to attend nature call without observing the train or he might commit suicide for the reasons known to him only, but the cause of death was not ascertained specifically and not confirmed the reason during the inquiry.
    Further, it is observed that in the postmortem examination report under Ex.A.4, the body of the deceased was brought in two separate parts and grease marks were found all over the body and 1/3rd of upper arm was not brought along with the body. This report reveals that the body was cut into pieces and this might happen due to dash by the train as revealed in Ex.A.6 inquest report that the body was dragged up to 50 sleepers and there is no constructive proof that the deceased committed suicide. The private investigation report filed by the 2nd opposite party vide Ex.B.6 by their investigator stated that there was no way (or) no necessity for any person to cross the track at that particular point. Further, in the said investigation report one T Kalikrishna (Nephew of deceased) has given written statement vide Ex.B.9 stating that the deceased intentionally laid on the Railway track due to unbearable stomach ache. But, there is no affidavit by the said person to this effect and there is no evidence that the said Kali Krishna related to the deceased or not.
    With the discussion held supra and under the facts and circumstances of the case, we are in the considered opinion that the death of the deceased might be caused due to dash by the train while the deceased crossing the track and further we are of the opinion that the deceased was a deaf by birth, he might not observed the train as he cant hear the sound of the train. Further, there is no particular evidence that the deceased committed suicide as per the public documents filed under Ex.A.4,A.5 and A.6, further the police registered a case under suspicious death only and there is no final report with particular reason. But, in the death report Dt.8.12.2006 issued by the Govt. Railway police vide Ex.A.3 which was a public document it was stated the death was caused accidentally. So, we are in the opinion that the opposite parties failed to prove that the death of the deceased was a suicidal case and so, the complainants herein are entitled for the claim under the policy from the 2nd opposite party. The claim against the 1st opposite party is not sustainable as they have nothing to do with the claim and they discharged their part in sending the claim form and documents to the 2nd opposite party as per their liability.


    9.POINT NO.2: In the result, the complaint of the complainants is allowed directing the 2nd opposite party insurance company to pay the claim amount of Rs.25,000/- (Rupees twenty five thousand only) with interest @9% P.A from the date of repudiation i.e 12.12.2007 till the date of realization. The 2nd opposite party further directed to pay Rs.1,000/- (Rupees one thousand only) towards costs of this complaint.
  • adminadmin Administrator
    edited September 2009
    C.C.No.80/2008
    Between:

    1.Dhulam Krupa Lakshmana Rao, S/o Thimmaraju, 39 years,
    S Yanam Village, Uppalaguptham Mandal.
    2.Dhulam Kasi Annapurna, W/o Krupa Lakshmana Rao, 30 years,
    S Yanam Village, Uppalaguptham Mandal. ..Complainants.
    A N D
    1.The Manager, State Bank of India,
    Bandarulanka, Amalapuram Mandal.
    2.The Branch Manager, United India Insurance Company Ltd,
    Kuchiminchi Agraharam, Amalapuram. Opposite parties.
    This case is coming on 20.3.2009 .for final hearing before this Forum and upon perusing the complaint, and other material papers on hand and upon hearing the arguments of Sri K V V S Prabhakar Rao, Advocate for the complainants and the 1st opposite party remained exparte and Sri B Ramesh, Advocate for the 2nd opposite party and having stood over for consideration till this day, this Forum has pronounced the following.
    O R D E R
    (By Smt.H V Ramana, Member)
    This is a complaint filed under section.12 of the Consumer Protection Act, 1986 by the complainants to direct the opposite parties to pay an amount of Rs.1,75,000/- under 1st policy and Rs.1,85,566/- under 2nd policy with interest @24% P.A and to award costs.

    2. The case of the complainants as set out in the complaint in brief is that, they obtained loan of Rs.5,20,000/- under Kissan Credit Loan from the 1st opposite party for developing their tank bunds and to do fish culture at their lands situated in S Yanam Village. The complainants obtained two policies from the 2nd opposite party vide bearing No’s.1551101/46/05/39/00000084 for the period from 19.10.2005 to 18.10.2006, the net premium paid is Rs.1,715/- for two fish tank bunds. The insured sum is Rs.1,75,000/-. Policy No.2 bearing No.151101/47/05/06/46/00000318 for a period from 19.10.2005 to 18.10.2006, net premium paid is Rs.12,450/- for fish in tanks 1 Extent is 3.4Hcts and 2 extent is 0.4 Hcts and the fish culture varieties are (1)Katla fish stock per acre 3000 stock (2)Rohu fish stock per Acre 9999 stock, the sum insured is Rs.1,85,566/-. The net premiums were paid by the 1st opposite party by debiting the amounts from the complainant’s account. While doing the fish culture the heavy and devasting flood occurred in the month of August, 2006 the entire uppalaguptham mandal was submerged in the flood water and the S Yanam village also submerged in the flood waters. Due to this the complainant’s fish tanks which were insured by the 2nd opposite party also submerged in the flood water and the tank bunds were also damaged. The entire fish culture was washed away in the floodwater. The Uppalaguptham Mandal was announced as crop damaged area due to floods and also the Co-operative societies and Government announced the crop damage reimbursement and crop insurance. The complainant intimated the same to the opposite parties and the surveyor by name Sri Yusuf Khan visited the tanks and requested them to furnish MRO certificate, tax paid receipt, copy of tank passbooks and documents and estimation of loss of bunds further the stock seed, feed and expenditure bills along with statement. As per the surveyors request the complainant furnished all the relevant documents. So far, the 2nd opposite party had not settled the claim. The complainant got issued a legal notice Dt.4.6.2007 demanding their claim. The opposite parties received the same. The 1st opposite party did not gave any reply and the 2nd opposite party issued a settlement intimation by settling the claim of policy No.1551101/46/05/39/00000084 for an amount of Rs.30,000/-. There is no settlement for the second policy i.e 1551101/46/05/39/00000318. The 2nd opposite party did not settle the claim as the insured fish was totally washed away in the flood water. The complainant filed a PLC No.37/2007 in Legal Service Authority, Amalapuram. On that the Honourable Authority issued notice to the opposite parties and the 2nd opposite party appeared before the Legal Cell Authority. The 2nd opposite party was directed by the authority to come along with the surveyor, but they failed to appear before the Honourable Authority and the said case was closed on 1.12.2007. Hence, the complaint.


    3. The 1st opposite party remained exparte and the 2nd opposite party filed written version denying all the material allegations made by the complainants. The 2nd opposite party submits that the complainants failed to submit necessary proof with supported material papers to this opposite party towards their claim. The 2nd opposite party further submits that as per the surveyors report no fish stock in the pond/tank at the time of the flood on 10.8.2006. As per the policy fish was stocked in the tank in the month of July, 2005 and the fish crop was harvested in May, 2006, because the said fish does not exist at the time of loss consequently the opposite party has no liability against the complainant. Therefore, the claim is repudiated and as such there is no deficiency in service. This opposite party is no way concerned about the loan obtained from the 1st opposite party. The complainant’s fish tanks were insured with this opposite party also submerged in the flood water and the bunds were also damaged was denied. The complainants are put to strict proof of genuineness of the documents annexed to the complaint and the actual damage occurred to them if any. The complainants stated that the entire Uppalaguptham Mandal was announced as crop damaged area due to floods and all the cooperative societies and the Government announced the crop damage reimbursement and crop insurance, but the complainants has not filed any material proof of loss and purchase of bills of fish seeds and the Government papers. If the Government declares such areas as damaged areas, they should issue through a GO or at least in a daily newspaper. Such material evidence was not filed by the complainants. Hence, the complaint may be dismissed with costs.


    4. Exs.A.1 to A.27 has been marked on behalf of the complainants and Exs.B.1 to B.11 were marked behalf of the opposite parties and no oral evidence has been adduced on either side.
    5. Heard both sides. Both the parties filed written arguments.

    6.The points that arise for consideration are:

    1) Whether there is any deficiency in service on the part of the opposite
    parties?
    2) Whether the complainants are entitled for any relief, If so, to what
    relief?

    7.POINT NO.1: Admitted facts in this case are that the complainants obtained two policies vide Exs.A.1 from the 2nd opposite party and paid the premium accordingly. Due to heavy floods in the month of August, 2006 the entire Uppalaguptham Mandal submerged in the flood water. The complainants intimated the same to the 2nd opposite party and the 2nd opposite party appointed a surveyor and he requested the complainants for relevant documents. As per the surveyor’s report the opposite party sent a settlement intimation voucher for Rs.30,000/- and the same has been marked under Ex.A.2. The complainant got issued a legal notice to the opposite parties vide Ex.A.3. The 2nd opposite party wrote a letter repudiating the claim vide Ex.A.6. They also wrote another letter about the settlement of the claim under policy No.151101/46/05/39/00000084 under Ex.A.7. Ex.A.8 is a letter issued by the Asst Secretary, Gramp Panchayat, S Yanam. Ex.A.9 was issued by the MRO, Uppalaguptham stating that the fish tanks were completely washed out due to Godavari floods from 10.8.2006 to 14.8.2006 in S Yanam. Ex.A.10 and 11 are the letters written by the surveyor of the 2nd opposite party. Ex.A.12 is the bunch of photographs. Ex.A.13 is the copy of the petition filed before the Lok Adalat. Ex.A.14 is the claim form certificate. Ex.A.15 is the purchase receipt of fish. Ex.A.16 is the expenditure statement of bund. Exs.A.17 to A.25 is the receipts relating to the purchase of Bran Oil. Ex.A.26 is the bund repair estimation made by Sri Sai Associates. Ex.A.27 is the statement showing the particulars of fish culture tanks issued by the Fishery development officer. The opposite parties filed Ex.B.1 fish insurance policy, Ex.B.2 proposal form for inland Fresh water fish, Ex.B.3 is the surveyor report filed by Yusaf Khan, Ex.B.4 is another surveyor report for fish tank bunds, Ex.B.5 is the claim form of fish tank bund, Ex.B.8 is the statement of account of the opposite party, Ex.B.9 is the proposal form and Surveyor report, Ex.B.10 is the proposal form and Ex.B.11 is the proposal form with receipt for fresh water fish insurance.

    The complainant contended that the entire Uppalaguptham Area was submerged in the floodwater and the said area was declared as drought area by the Mandal Revenue Officer and also the Co-operative Societies. The complainant further contended that he submitted all the relevant documents to the 2nd opposite party, but the 2nd opposite party failed to settle the claim and repudiated the same in 2nd policy. They further contended that the estimated loss of damaged bund is Rs.1,00,000/- under Ex.A.26. The 2nd opposite party contended that as per the policy condition No.13 of the fish insurance policy No.151101/47/05/46/00000318, the said policy seizes as and when the insured sells them and further risk would not be covered. The complainant shall maintain records on daily by monthly basis relating to different stages of fish stock in various tanks as per 7th condition of the policy. But, they failed to maintain the same. As per the surveyors report the complainant are not maintaining any stock registers or related accounts by the date of the calamity.
    After perusing the material on record the complainant on his own estimated the damage of the bund under Ex.A.26 to a tune of Rs.1,00,000/-. The opposite parties surveyor valued the claim to a tune of Rs.38,687/- under Ex.B.4. As per his report the complainant may be entitle for Rs.38,687/- only.

    The 1st opposite party is the bank in which the complainants obtained loan under Kissan Credit. This opposite party is no way concerned with regard to the insurance claim. Hence, the complaint against this 1st opposite party is dismissed.
    The 2nd opposite party’s surveyor filed another report with regard to fish insurance in detail and he reported that the complainant’s has not taken any preventive measures to control the weeds and predators etc and has not find any fish stock in the tanks and there is no stocks of feed and medicines found at the tank. The complainants have not maintained any daily, monthly fish culture record keeping register and as such there is no stock on the date of occurrence of the calamity.
    As per the above records we opine that the complainants are entitled for Rs.38,687/- as per the surveyors report vide Ex.B.4, with regard to the insurance under policy No.151101/46/05/39/00000084. With regard to the Policy No.151101/47/05/00318, as the complainants has not maintained any records as per the terms and conditions of the policy, the surveyor stated that there were no stocks at the time of their inspection and arrived that the insured is not cultivating fish at the time of floods as per his investigation. The complainants stated that they submitted Ex.A.27 issued by the Fisheries Development Officer, but they have not filed their books of account maintained by them for the purpose of the Fish culture. Even the surveyor noticed the same and mentioned in his report. Therefore, basing on the surveyor’s report we opine that the complainants are not entitled for any claim with regard to the fish insurance policy.



    8. POINT NO.2: In the result, the complaint of the complainant is allowed in part directing the 2nd opposite party to pay Rs.38,687 (Rupees thirty eight thousand six hundred and eighty seven only) towards claim under policy No.151101/46/05/13/00000084 with interest @9% P.A from the date of filing i.e1.7.2008 till the date of realization. The 2nd opposite party is further directed to pay Rs.1,000/- (Rupees one thousand only) towards costs.
  • adminadmin Administrator
    edited September 2009
    CONSUMER COMPLAINT NO.95/2008.
    Friday, the 17th day of April, 2009.
    Between:

    Smt. Batchu Lakshmi Annapoora,
    W/o. Ganga Raju, D.No.12-23-14,
    Hindu, 50 years, R/o. Lalitha Nagar,
    5th Lane, Rajahmundry. ..Complainant
    A N D

    1. United India Insurance Co. Ltd,
    Rep. by its Divisional Manager,
    Divisional Office, Innispeta,
    Hothavari Street, Rajahmundry.

    2. United India Insurance Co. Ltd.,
    Rep. by its Branch Manager,
    Branch Office, 3-2-4/1,
    Ist Floor, Patimeeda Nidadavole. … Opposite parties.



    This case is coming for hearing before this Forum and upon perusing the complaint, version of the opposite parties and other material papers on hand and upon hearing the arguments of Sri G.Gopala Rao, advocate for the complainant and Sri M.Samba Siva Rao, advocate for the Opposite parties 1 and 2 and having stood over for consideration till this day, this Forum has pronounced the following.
    ORDER


    (PER SRI K CH MOHANTHY, PRESIDENT)

    This is a complaint filed by the complainant under Section 12 of the consumer Protections Act to direct the opposite parties to pay an amount of Rs.1,50,000/- with interest @ 24% p.a towards medical expenses from the date of repudiation till realization and Rs.50,000/- by way of damages and pass such other reliefs.


    2. The case of the complainant as set out in the complaint is that the complainant along with her husband took individual health insurance policy bearing No.150605/48/07/97/00000552 covering the period from 29.09.2007 to 28.09.2008 by payment of total premium of Rs.9,490/- out of which Rs.3,455/- representing the premium amount covering the liability to an extent of Rs.1,50,000/- in favour of the present complainant. It is submitted by the complainant that as she complained severe pain in both the knees and had check up in Krishna Institute of Medical Sciences, Secunderabad on 11.02.2008 and started conservative treatment by using medicines as prescribed by the doctor. As there was no improvement the complainant joined in the hospital and on investigation reports the doctors advised the complainant to undergo surgery to her left knee. The complainant joined in the hospital on 27.03.2008 and intimated about the process of treatment undergone by her from time to time through her letter dt 27.03.2008 to the 2nd opposite Parties. The complainant remained in hospital from 27.03.2008 to 01.04.2008 and undergone treatment for total left knee replacement and incurred an amount of Rs.1,69,300/- under connectional rate.

    Immediately after discharge from the hospital, the complainant submitted the claim forms along with all material papers in original as required by 2nd opposite Parties to process her claim under the above said health insurance policy. While, so the 2nd opposite Parties sent a letter dt 05.06.08 to the husband of the complainant to send all the papers relating to the entire treatment as if he had undergone treatment. In view of the fact, that the complainant’s husband no way connected to the present claim except the fact that the insurance policy was taken jointly. As the complainant’s personnel requests with 2nd opposite Parties went in vain and finally she received a letter dt 30.07.08 from the 2nd opposite Parties stating that her claim file was closed for the reason that the same falls under category exclusion No.4.3 of gold policy conditions against their promise in their letter dt 05.06.08. The complainant got issued legal notice to the opposite parties and the opposite parties received the same that of no use. It is further submitted by this complaint that having giving assurances to the complainant at the time of issuing policy the opposite parties being public sector undertaking and disallowed the claim of the complainant to avoid their liability under its policy certainly amounts to deficiency of service. Hence, this complaint.


    3. The 1st opposite Parties filed their written version and the 2nd opposite Parties adopted the same.
    The brief contention of the 1st and 2nd opposite parties are that the main and material allegation in the complaint are not true and correct and the complaint is not maintainable either in law or on facts. It is submitted that except the fact that the complainant and her husband took ”Individual Health Insurance Policy-Gold Policy”, the rest of the allegations are not true and correct. It is true that the policy was valid from 29.09.07 to 28.09.2008. It is further submitted by this 1st opposite Parties that as per the terms and conditions of the Health Insurance Policy obtained by the complainant and her husband, exclusory No.4.3 i.e “Joint replacement due to degenerative condition/age related OSTEORATHRITS” during the first two years as such for the first two years commencing from 29.09.2007 the exclusion under 4.3 of the gold policy condition is applicable. The 1st opposite Parties further submitted that the complainant sent the letter dt 27.03.2008 to the 2nd opposite Parties stating that she approached Krishna Institute of Medical Sciences and Dr.A.V.Guruva Reddy advised her to undergo left knee surgery. It is further submitted that complainant wrote a letter dt 29.03.2008 stating that she underwent surgery on 28.03.2008. It is further submitted that the claim form was submitted only on 09.05.2008 by the complainant. Further it is submitted that the 2nd opposite Parties sought the opinion of Dr.A.V.Ramanarayana of Rajahmundry for scrutiny an expert opinion dt 31.05.2008 and the same filed, in that the said doctor opined that this disorder may not develop with short period that too with that much severity requiring total replacement. On that this 2nd opposite Parties sent the letter dt 05.06.2008 to the complainant along with and replied vide letter dt 16.06.2008.

    It is further submitted that the 2nd opposite Parties carefully scrutinize the entire claim file including expert opinion and concluded that the claim of the complainant comes under exclusion No.4.3 of Gold Policy condition. The complainant’s claim is also forwarded to the higher authority i.e The Divisional Office, Eluru for further scrutiny and final decision. It is submitted that the Divisional Office, Eluru endorsed the repudiation made by the 2nd opposite Parties and after receiving conference the 2nd opposite Parties repudiated the claim of the complainant vide letter dt 30.07.2008 and there is no deficiency of service on the part of the opposite parties. Hence, the complainant is not entitled for any of the claim amounts or reliefs claimed in her complaint and the Hon’ble Forum may be pleased to dismiss the complaint with costs.

    4. Heard both sides. The complainant filed written arguments.

    5. Points to be considered in this case are that;

    1. Whether there is any deficiency in service on the part of the opposite parties?
    2. Whether the complainant is entitled for the claim amounts and other
    reliefs asked for? If so, to what extent?

    6. Exs.A.1 to A.13 are marked on behalf of the complainant and Exs.B.1 to B.11 were marked for the 1st and 2nd opposite parties.

    7. Admitted facts in this case are that the complainant herein obtained individual health insurance policy for Rs.1,50,000/- from the opposite parties vide policy No.150605/48/07/97/00000552 under Ex.A.1=A.13 and the same is in force from 29.9.2007 to 28.9.2008 on payment of Rs.3,455/- towards premium amount. The complainant’s husband also obtained the policy for Rs.2,50,000/- along with the complainant on payment of Rs.5,436/- towards premium amount. As such the complainant undergone tests under the supervision of Dr A V Guruva Reddy at KIMS, Secunderabad on 11.2.2008 and 12.2.2008 vide Ex.A.2=Ex.B.4, after perusal of the test reports the Doctor advised the complainant to get prepare for surgery and conducted surgery to the complainants left knee replacement on 28.3.2008 vide Ex.B.4 and the same was informed to the opposite parties under Ex.B.1, B.2 letters Dt.27.3.2008 and 29.3.2008 respectively. The complainant’s husband preferred claim with the opposite parties for medical expenses vide Ex.B.3=Ex.A.7 Dt.9.5.2008. On that the 2nd opposite party wrote a letter Dt.5.6.2008 vide Ex.B.6 to the complainant asking him to supply medical treatment undergone at Nidadavole prior to surgery at KIMS. Ex.B.8, B.9 are the inter Departmental letters with regard to repudiation of claim and the claim of the complainant was repudiated vide Ex.B.10 Dt.30.7.2008. Ex.B.11 is the schedule and premium certificate including exclusion clauses.


    8.POINT NO.1: The case of the complaint is that though she obtained individual health policy from the opposite parties and the same is in force from 29.9.2007 to 28.9.2008, the opposite parties repudiated her claim for medical expenses incurred during surgery by her for left knee replacement on 28.3.2008 and the reason stated by the opposite parties for repudiation of her claim under exclusion clause 4.3 of Gold policy conditions is not sustainable.
    Whereas, the opposite parties contended that the surgery for replacement of left knee falls under exclusion clause vide clause No.4.3 during the first two years of the operation of policy and so the complainant herein is not entitled for claim amount towards medical expenses incurred by her during surgery.

    On perusal of the entire record it was found that the complainant and her husband obtained Mediguard policy in the previous year also vide policy No.150605/48/06/12/00001537 for the period from 29.9.2006 to 28.9.2007 under Ex.A.10. The present Mediguard policy vide Ex.A.1=A.13 is in continuation to the earlier policy and the same was also noted by the opposite parties on the face of policy contained in Ex.B.4. Further, it was observed that the opposite parties obtained Ex.B.5 opinion Dt.31.5.2008 in which the said doctor stated that the disease is “Osteo Arthritis left knee, a degenerated disorder and is a preexisting one” and basing on that opinion the opposite parties repudiated the claim of the complainant. The complainants contention is that the said doctor who issued Ex.B.5 opinion is not a treating doctor and orthopedician, but he is only a physician. It was found that the said opinion obtained by the opposite parties was not supported by any affidavit by that doctor.
    Further, it was also observed that as per the Radiologist impression in page No.20 under Ex.B.4 showed that “features suggestive of early degenerative Osteo Arthritis both knee joints” which means that it is in the beginning stage. So, there is no force in the contention of the opposite parties that the disorder of the complainant is a preexisting one prior to the commencement of the policy mentioned in the 2nd page of their letter vide Ex.B.8 and repudiation of the claim on that reason. Further, it was also observed that Ex.A.12 medical certificate Dt.20.9.2007 issued by the Medical Officer, Primary Health Centre, Dowleswaram certifying that the complainant is fit for normal routine outdoor work, and the same was submitted to the opposite parties at the time of renewal of policy, basing on this certificate only the opposite parties issued the Individual health insurance policy. If the opposite parties have any doubt with regard to preexisting disease in case of aged insured, it is their responsibility to conduct all kinds of tests by their panel doctors.
    It was further observed that Ex.B.11 filed by the opposite parties contained only three papers and it appeared that Gold policy conditions were attached. Whereas, Ex.A.11 prospectus issued by the opposite parties under Mediguard Individual insurance policy contained different exclusion clause under 4.3 and about the renewal of the policy under Clause.14, which was signed by the complainant herein on 19.9.2007. Further the opposite parties did not file the proposal form pertaining to the complainant and her husband to the reasons best known to them. So, we are in the considered opinion that the opposite parties issued a different prospectus with different exclusion clauses at the time of issuance of policy and repudiated the claim of the complainant with a different exclusion clause under Mediguard Gold policy condition and so, the 2nd opposite party committed mistake at the time of renewal of policy pertaining to the complainant and in fact the officials of the opposite parties are at fault. Hence, it is not fair on the part of the opposite parties to repudiate the claim of the complainant.
    As per exclusion clause No.4.3 contained in Ex.A.11 did not say anything about joints replacement and it only says about preexisting disease. In the present case the disease was not proved as preexisting one as the opposite parties failed to produce any cogent evidence that the complainant undergone treatment for the said knee pains prior to obtaining the individual health policy. It was also observed that as per the exclusion.14 under Ex.A.11 “if the policy is to be renewed for enhanced sum insured, then the restriction as applicable to a fresh policy will apply to additional sum insured as if a separate policy has been issued for the difference”.

    The complainant filed five citations in support of his case, out of which only thee citations are relevant to the facts and circumstances of the present case.

    1)SC.7135/2007, 2007(3) ALD 74 (SC) between National Insurance Company Ltd Vs Ishar Dhas Madan Lal, wherein it was held that; “There may be an express clause excluding the applicability of insurance cover. Wherever suich exclusionaly clause is contained in a policy, it would be for the insurer to show that the case falls within the purview thereof. In a case of ambiguity, it is trite, the contract of insurance shall be construed in favour of the insured”.
    2)AIR 2007 Supreme Court 2556, between United India Insurance Co Ltd Vs M/s Great Eastern Shipping Co Ltd, where in it was held ; “Insurance Act (4of 1938), Pre – Insurance policy – Terms used _ Interpretation – Intention of parties has to be kept in view – If intention subserves terms and that used – Full and extended meaning should be given to terms used”.
    3)2009 ACJ 157 National Insurance Company Ltd Vs B D Lalit and others, where in it was held; “Insurance – Meciclaim policy – Renewal of – Exclusion of ailment – Insurance company had allowed the claim of the insured when he suffered heart ailment during the subsistence of original policy – Insurance Company renewed the mediclaim policy excluding heart related problems – Insured underwent angioplasty for removal of blockage in arteries and insurance company repudiated the claim on the ground that heart related problems were excluded from the policy – Insured alleged that exclusion has been done without his knowledge, notice and consent – Guidelines issued by General insurance Corporation direct insurance companies to renew earlier policies without inserting exclusion clauses for expenses of ailments which were not excluded in original polices – Whether insurance company could exclude coverage of heart ailment from policy while renewing earlier policy – Held no ; policy has to be renewed on the existing terms and conditions”.

    With the discussion held supra; we are in the considered opinion that the complainant herein is entitled for claim for medical expenses incurred by her during the surgery for Left knee replacement. However, as per the exclusion No.14 under Ex.A.11 the complainant is entitled only for Rs.1,00,000/- towards claim because the complainant renewed her policy by enhancing the previous policy amount to Rs.1,50,000/-. Though the complainant claimed an amount of Rs.1,69,300/- by filing consolidated bills under Ex.B.4, she is entitled for Rs.1,00,000/- only as per exclusion Clause No.14 under Ex.A.11.

    9.POINT NO.2: In the result, the complaint is allowed directing the opposite parties to pay an amount of Rs.1,00,000/- (Rupees one lakh only) with interest @9% P.A from the date of repudiation i.e 30.7.2008 till realization. We further direct the opposite parties to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint.
  • adminadmin Administrator
    edited September 2009
    CONSUMER COMPLAINT NO.07/2008.
    Friday, the 17th day of April, 2009.
    Between:
    1. Yedireswarapu Subba Lakshmi,
    W/o. Subba Rao, 50 years,
    C/o. M.Somalingam, H.B.Colony,
    Amalapuram.

    2. Yedireswarapu Sheshagiri Rao,
    S/o. Subba Rao, 17 years,
    C/o. M.Somalingam, H.B.Colony ,
    Amalapuram. ...Complainants.
    A N D

    1. M/s United India Insurance Company Limited,
    Rep. by its Divisional Manager, 206 and 207,
    2nd Floor, Saptagiri Towers, Begumpet,
    Hyderabad.

    2. M/s Andhra Bank, Credit Card Division,
    Head Office, Koti, Hyderabad.

    3. M/s Andhra Bank, Credit Card Division,
    Donkarai, Branch Office, Autonagar,
    Rajahmundry, E.G.District. … Opposite parties.


    This case is coming 20.03.2009 for final hearing before this Forum and upon perusing the complaint, version of the opposite parties and other material papers on hand and upon hearing the arguments of Sri K.Sesha Rao, advocate for the complainants 1 and 2 being represented by Sri B.Ramesh, advocate for the 1st opposite party, Sri S.S.Chalam, advocate for the 2nd opposite party and Sri K.V.V.S.Narayana Swamy, advocate for the 3rd opposite party and having stood over for consideration till this day, this Forum has pronounced the following.
    ORDER


    (PER SRI A. MADHUSUDANA RAO, MEMBER)

    This is a complaint filed by the complainants under Section 12 of the Consumer Protections Act to direct the opposite parties to pay jointly and severally the actual claim amount of Rs.2,00,000/-, interest of Rs.34,000/- from date of accident till filing of the complaint, to pay Rs.1,00,000/- damages, award subsequent interest at 12% from the date of filing this complaint and to award costs.

    2. The case of the complainants as set out in the complaint is that the 1st complainant’s husband by name Y.Subba Rao, Gr.1 Sarang in A.P.Genco Limited, Donkarai died on 25.12.2005 at 10.30 P.M while he was attending to his official duty in his own Ambassador car as the car was kid and fell down into the dam. The deceased died due to severe injuries and shock. The complainants reported the matter to the SHO, PS, Donkarai and also to the 1st and 2nd opposite parties herein for Visa Gold Card benefits and claims as the 1st complainant’s deceased husband having Visa Gold Card No.4511500025759146. The 1st opposite party issued Personal Accident Form to the 1st complainant with a request to return the same duly signed by complainant/nominee and counter signed by the 2nd opposite party with all related documents. Unfortunately, on 16.09.2006 the 2nd opposite party intimated the complainants that the insurance claim was not entertained and not admitted and the same was repudiated. The 1st opposite party herein repudiated the claim vide their letter dt 08.09.2006 and not discharged its duty in terms clauses of the policy, which amounts to deficiency of service on the part of the opposite parties. Hence, this complaint.
    2.[FONT=&quot] [/FONT]The opposite parties filed their version. The 1st opposite party insurance
    Company denied all the material allegations as they are not true and correct and there is no deficiency of service on their part as per policy terms and conditions. Further, stated that there is no contract between the complainants and the 1st opposite party. It is further submitted that the complainants failed to satisfy the terms and conditions of accident policy and the burden lies with the complainants to establish the existence of policy. Further, it is submitted that the said policy is applicable to accidental death only and it is not applicable to natural death or suicidal case. Further, as per the post mortem examination report of the deceased head including the brain has been described as normal and internal organs has been described as congested which do not correspond to the cause of death mentioned. Injury is mentioned in the report or superficial and do not suggest any major impact or force and such injuries are not sufficient to cause death. Dimensions and colour of the injuries have not described in the report. As per the observations made in the report none of the internal organs or the tissues have been damaged expect for a cut injury on the lower lip. It is further submitted that the PM report clearly stated that the death is caused by shock due to road traffic accident and not due to injuries. The said insurance policy is for death due to accidental, violent and visible means and shock is not a violent and visible means. Hence, there is no policy coverage for the same and the claim is repudiated. It is further submitted that the complainants are not entitled for Rs.3,34,000/- including damages and interest as there is no policy coverage due to natural death of the deceased. The complainants are failed to comply the terms and conditions of the policy and there is no deficiency of service on the part of the 1st opposite party and hence prays the Hon’ble Forum to dismiss the complaint.
    The 2nd opposite party filed its version and the same was adopted by the 3rd opposite party denying all the main and material allegations in the complaint as they are not true and correct and the complaint is not maintainable either in law or on facts. This opposite parties submits that they are no way connected with the allegation made by the complainants to pay the compensation on account of death of the deceased. It is further submitted that, it is true that the deceased was the credit card holder of the bank and the same is in tie up with the 1st opposite party insurance company whose liability is tied up with 1st opposite party by virtue of terms and conditions of the policy issued in favour of the credit card holder. It is further submitted that in view of the fact that there is substantial law involved in deciding the quantum of the fact and substantial proof is required to be adduced from evidence of various officials who actively involved in he present case the matter may be referred to civil court of competent jurisdiction in order to have justice with equality and good consciences. It is also denied that the deceased is operating the credit card in particular branch, further the complainants are put to strict proof of death of the deceased under the relevant records. The petitioner is put to strict proof of all the allegations. Hence, this opposite parties prays the Hon’ble Forum to dismiss the complaint with costs.
    4. Heard both the parties. Both sides filed their written arguments.
    5. Points to be considered in this case are that;

    1. Whether there is any deficiency in service on the part of the opposite parties?
    2. Whether the complainants is entitled for the claim amounts and other
    reliefs asked for? If so, to what extent?
    6. Exs.A.1 to A.7 are marked on behalf of the complainants and Ex B1 to B7 are marked for the opposite parties.
    7. Admitted facts in this case are that the deceased Y.Subba Rao husband of the 1st complainant herein was holder of Visa Classic Gold Card No.4511500025759146 issued by the 2nd and 3rd opposite parties under Ex B3. The said Visa Classic Card Holders were under coverage of insurance for Rs.2,00,000/- in case of accidental death of such card holders with the 1st opposite party herein and the tie up for the said Tailor Made Group Personal Accident Policy is in between the 1st opposite party and with the 2nd opposite party under Ex B5. The deceased was died on 25.12.2005 vide Ex B4 during the currency of the said Group Personal Accident Policy. The complainants claim for accidental benefits on the death of deceased was repudiated by the 1st opposite party vide their letter dt 16.09.2006 under Ex B7.
    7.[FONT=&quot] [/FONT]POINT NO.1: The case of the complainants is that the 1st opposite party
    repudiated their claim for Rs.2,00,000/- arose under Visa Classic Gold Card obtained by the deceased, husband of the 1st complainant and father of the 2nd complainant, who died due to road accident on 25.12.2005.
    Whereas, the 1st opposite party contended that the repudiation was done because the deceased died of “shock-due to road traffic accident” and not due to injuries caused in accident and the policy is only applicable to accidental death and it is not applicable to natural death or suicidal case. Hence, they repudiated the claim of the complainant’s and there is no deficiency of service on their part.
    On perusal of the entire record it is found that as per Ex A5 FIR a case was registered by the SHO, Donkarai, E.G., under section 304(A) IPC on 26.12.2005 and as per that report the deceased’s wife i.e the 1st complainant compiled that at the time of her visit to the accident site along with villagers she found that blood is flowing from the driver seat and her husband was found died. Further, it was found in the inquest report under Ex A6 prepared by the SHO, Donkarai in which it was stated that the body was found with closed eyes, blood strains from mouth and blood strains from right nose. It is further reported that the deceased sustained a small abrasion in right arm pit, a small contusion is present on the left side of the chest wall, a cut on the lower lip, a small abrasion injury on the left wrist joint and some bruises with bumps. It is further found that the inquest report also confirmed that the deceased was died because of accident only as per the circumstantial evidence at the accident spot.
    Further, it is observed in the Ex A7 POSTMORTEM EXAMINATION REPORT dt 27.12.2005 that some internal parts of the deceased were intact and some parts were intact but congested. It is further observed that in the said PME Report the doctor who conducted the examination found some external injuries also on the body of the deceased and the same were coincide with the injuries mentioned in the inquest report under Ex A6.
    The case of the 1st opposite party is that as per their Group Personal Accident Policy vide Ex B1 “the company shall pay the insurance if any of the incurred person shall sustain any bodily injury resulting solely and directly from accident caused by external, violent and visible means only”. Further, as per the opinion dt. 04.09.2006 obtained from one Dr.T.Mahendra Reddy in which the doctor opined that injuries described in the Panchanama (inquest) and postmortem examination report are tallied and further stated that the injuries are possible in accident but they are not sufficient to cause death in ordinary course of events. It is further found in that opinion the doctor stated that the cause of death opined by the doctor who conducted PME is not clear and shock due to road traffic accident does not convey any meaning as to the exact Patho-Physiological events, further the injuries are superficial and do not suggest any major impact or force and dimensions and colour injuries not described. Further it is found that colour photographs and previous medical history of the deceased could have been useful to the exact cause of death. There is no affidavit filed by this doctor who gave his opinion to this effect. So, the opinion given by the doctor under Ex B2 also not conclusive.
    The complainant filed two citations delivered by the apex commissions in support of his case.
    1.[FONT=&quot] [/FONT]2004, CPJ- I page 287 in United India Insurance Co. Ltd Vs Mehar Chand “in which it was held that injury is not necessary in every accident” citing earlier decision reported in 2003 -6 CLD 480 (SCDRC, GUJ) in Nerendra Kumar Hamirbhai Bhadiya Vs LIC of India that if accident is proved merely because there was no injury to the victim or damage to the motorcycle the accident cannot be disbelieved.
    2.[FONT=&quot] [/FONT]1986-2002 Consumer 6397 (NS) in United India Insurance Co. Ltd Vs Smt Gurdev Kaur it was held that as no evidence was led by the insurer in support of its plea and there is no evidence by way of affidavit filed by the witnesses.
    The above citations filed by the complainants are rightly suitable to the present context and facts of the case.
    With the discussion held supra and under the facts and circumstances of the case and on perusal of the above cited judgments, we are in the considered opinion that as the exact cause of death was not ascertained, but as per the circumstances and opinion expressed in PME report that the deceased died due to shock-in road traffic motor accident. So, we have no other option but to considered the death of the deceased is only due to the accident as per the Exs.A5, A6 and A7 which are official documents and the 1st opposite party failed to prove contra. Further we consider the death was occurred due to shock in the process of accident and can be deemed as accidental death. So, the complainants here in are entitled for the claim amount of Rs.2,00,000/- preferred by them with 1st opposite party on the death of the deceased husband of the 1st complainant and father of the 2nd complainant.
    The 2nd and 3rd opposite parties are only the facilitators to the said insurance policy and whose liability is tie up with the 1st opposite party by virtue of terms and conditions of the policy and they did their part. Hence, we cannot attribute any kind of deficiency in service on the part of the 2nd and 3rd opposite parties and the claim against this opposite parties is not sustainable.
    9.POINT NO.2: In the result, the complaint of the complainants is allowed directing the 1st opposite party insurance company to pay the claim amount of Rs.2,00,000/- (Rupees Two Lakhs only) with interest @ 9% p.a from the date of repudiation i.e 16.09.2006 till realization and further directed to pay an amount of Rs.2,000/- (Rupees Two Thousand only) towards costs.
  • adminadmin Administrator
    edited September 2009
    ORDER
    By Sri. K. Gheevarghese, President:
    The complaint filed under section 12 of the Consumer Protection Act 1986.
    The facts led to the complaint in brief is as follows:- The Complainant availed a mediclaim policy from the 1st Opposite Party and the 2nd Opposite Party acted as an agent of it. The coverage of the policy was from 14.3.2007 to 13.3.2008. The risk covers the amount of Rs.1,05,000/- as the sum assured by the insurer.


    2. The Complainant had undergone treatment for chest discomfort on 13.1.2008 and later on the same day he was transferred and had undergone treatment at MIMS Hospital Kozhikode. The treatment for the Complainant was for ST elevation myocardial infarction, old inferior wall myocardial infarction double vessel coronary artery disease, ventricular dysfunction and diabetics mellitus type 2. The Complainant was given treatment and he was discharged from the MIMS Hospital on 19.1.2008. Again on the 2nd time the Complainant was admitted on 21.1.2008 in the same hospital and had undergone treatment and discharged on the same day and was advised the Complainant for treatments afterwards. The treatment of the Complainant had the expenses of Rs.1,42,549/- in the MIMS hospital other medical expenses of Rs.5,356/-. On the date of discharge Rs.1,772/- was also paid by the Complainant towards the charge of treatments. The 1st Opposite Party is the insurer who is legally liable to compensate the Complainant the amount assured for the medical treatments. The Opposite Party in contrary repudiated the claim of the Complainant on the ground that the Complainant had pre-existing disease which was suppressed. The repudiation on this ground is absolutely illegal and the same is a deficiency in service on the part of the Opposite Party. There may be an order directing the Opposite Parties to:-
    (a) Pay the sum assured along with cumulative bonus of the mediclaim policy No.101601/48/
    06/20/00002750 to the Complainant with interest.
    (b) Pay a sum of Rs.25,000/- towards the cost and compensation along with other reliefs
    found to be deemed fit.


    3. The Opposite Party filed version contenting the claim of the Complainant. The sum up of the version is as follows:- The Complainant is a known case of coronary artery disease old inferior wall (M1) (1990) and known diabetic patient before the commencement of the risk. The Complainant had pre-existing disease which was not disclosed instead it was kept suppressed and that is against the terms of policy. There is no deficiency in service on the part of the Opposite Party. The Complainant is not entitled for the cumulative bonus of the mediclaim with interest along with cost and compensation, the complaint is to be dismissed with cost to the Opposite Party.

    4. The points in consideration are:
    1. Whether the repudiation of the claim of the Complainant amount to deficiency in service.
    2. Relief and cost.
    5. Point No.1:- The Complainant filed proof affidavit, Ext. A1 to A5 are marked. The Opposite Parties filed proof affidavit interalia contenting the allegation of the Complainant, Ext.B1 to B4 and Ext.X1 series are marked. The case of the Complainant is that the Opposite Party repudiated the claim of the Complainant to reimburse the medical expense covered in the risk of insurance by the Opposite Party. Whereas the Opposite Party contented that the claim was repudiated on the ground of preexisting disease, which was suppressed and not disclosed when the insured got access into the policy. The major aspect which is to be taken into consideration whether the Complainant suppressed the fact of pre-existing disease when he
    got access into the policy. Ext.X1 series which are three in numbers are the case sheet of the referred hospital MIMS Hospital, Calicut. The treatment of the Complainant in three period comprises the Ext.X1 series. In the history of patient illness in Ext.X1 series disclosed that the Complainant has myocardial infraction since 1990. The Ext.B2 is the certificate issued by consultant cardiologist in MIMS Hospital, Calicut in this certificate the probable date of commencement or manifestation on the history of illness is recorded as 1990. The Complainant is having the known case of coronary artery disease and old inferior wall myocardial infarction in 1990. From these documents it is to be considered that the Complainant when got access into the policy had been under treatments for cardiac complaint since 1990. At the time of his access into the policy the Complainant had the diabetic complaint that too was also not disclosed. From the very aspect of this it is to be considered that the repudiation of the policy on the ground suppression of the existing disease cannot be interfered and it does not amount to deficiency in service. The repudiation of the claim is reasonable and the point No.1 is found accordingly.


    6. Point No.2:- The Complainant had not disclosed the existing disease at the time of his inception to the policy. The Opposite Party has not done any deficiency in service. The detail discussion of point No.2 does not arises. In the result the complaint is dismissed, no order as to cost.
  • adminadmin Administrator
    edited September 2009
    ORDER By Jayasree Kallat, Member:


    The complainant is the owner of Motor Cycle bearing registeration No.KL-11/K-2317 which was purchased by him by availing a loan from Canara Bank, Koyilandy branch. The vehicle was insured with the opposite party by the bank at the time of availing the loan. On 12-8-02 this vehicle along with all its papers were stolen. The complainant lodged a complaint before the Kasaba Police Station on 23-8-02. The Police started investigation. The complainant lost all the papers including the R.C., Tax Disc and the insurance policy pertaining to the vehicle. The complainant had approached the opposite party with the registeration number and Chassis number of the vehicle. The vehicle was insured with the opposite paprty by the Canara Bank. When the complainant approached the opposite party, the opposite party denied the insurance of the vehicle. All the documents, which were kept in the vehicle, were stolen. It took some time for the complainant to obtain the information as to the particulars of the insurer. The complainant believed that the Police would succeed in tracing the vehicle. The said vehicle was validly insured with the opposite party. The Police later on intimated to the complainant that the vehicle could not be traced. The complainant again approached the opposite party and submitted a claim for recovery of the sum insured from the opposite party as the vehicle was not traceable. The complainant received a letter dated 1-6-04 from the opposite party stating that the claim cannot be entertained since the complainant had failed to inform the opposite party immediately about the theft of the vehicle. The complainant can claim insurance only after the police submits the report to the effect that the vehicle is untraceable. In this case the police has reported that the vehicle is undetected only on 17-2-04. This was the reason why the complainant preferred the claim belatedly after the theft of the vehicle. It is illegal, and against public policy on the part of the opposite party to deny the claim made by the complainant for the loss of the vehicle. Opposite party did not respond even after letter sent by the complainant to opposite party. The act of the opposite party in not honouring the claim of the complainant is deficiency of service on the part of opposite party. Hence the complainant filed this petition claiming an amount of Rs.42400/-, which is sum insured, plus compensation of Rs.5000/- and a cost of Rs.1500/-.

    The opposite party filed a version denying allegations in the petition except those matters, which are specifically admitted. There is no default or negligence or deficiency of service on the part of opposite parties. Opposite parties denies the averments in Col.3 and 4 of the complaint. The alleged theft of the motorcycle KL-11/K-2317 was intimated to the opposite party only on 26-3-04. There was a long gap between the date of theft that is 12-8-02 and the date of intimation that is 26-3-04. This is in violation of the policy condition No.1. Hence the opposite party is not liable to pay any amount under the insurance policy. The condition of the insurance policy is to be strictly adhered. The complainant ought to have intimated the theft in the year 2002 August itself. The claim is barred by limitation. The opposite party is not liable to pay any amount claimed by the complainant. Opposite party prays to dismiss the complaint.

    The point for consideration is whether the complainant is entitled for the relief sought?

    PW1 was examined and Ext.A1 to A6 were marked. No oral evidence adduced by opposite party. Ext.B1 was marked on opposite party’s side.

    The case of the complainant is that he was the owner of the vehicle bearing registeration No.KL-11/K-2317. The complainant had availed a loan from Canara Bank. At the time of availing the loan the bank had insured the vehicle with the opposite party. The vehicle was stolen along with all the documents on 12-8-02. A complaint was lodged before the Kasaba Police Station regarding the theft of the vehicle on 23-8-02. Complainant had lost all the papers including R.C., Tax Disc, Insurance policy along with the vehicle. As the complainant lost the documents pertaining to the vehicle he had approached the opposite party with the Registeration No., Chassis No. etc. of the vehicle. The opposite party did not respond. The complainant had to approach the Canara bank who had insured the vehicle. According to th complainant the police took years to report the vehicle untraceable. Opposite party has raised the contention that the complainant had delayed in reporting the matter to the opposite party and hence the complainant is not eligible for the claim as it is barred by time limitation. The Forum has been convinced by the complainant that the long delay occurred because the police had taken about years to report the vehicle untraceable. So there was no negligence on the part of the complainant. The complainant had valid policy during the time of theft. Hence in our opinion the complainant is entitled to get the relief. Opposite party had received the premium from the complainant. In such a case the opposite party is liable to indemnify the loss of the complainant as the complainant being a valid policy holder. The counsel for the complainant has produced the decision of 2008 (3) KLT 332 (SC National Insurance Co. Ltd. Vs Nitin Khandelwal ) “ the question raised is whether in a case of theft of vehicle, insurer can repudiate the claim on the ground of violation of policy conditions. Supreme Court held that in case of theft of vehicle, breach of condition is not germane.” Taking all these facts into consideration we are of the opinion that the complainant is entitled for the claim after depreciation as mentioned in the policy. In this case the year of manufacture of the vehicle is 2000. As per Ext.B1- Policy limit of liability of the amount of the company’s liability Under Sec. II-1(ii ) in respect of any one claim or series of claims arising out of one event up to Rs.44000/-. The vehicle was lost on 12-8-02 ie. within two years of purchase of the vehicle. According to the opposite party the schedule of depreciation for fixing I.D.V. of the vehicle exceeding one year to not exceeding two years is 20%, which is applicable in this case. Hence we are of the opinion that the complainant is entitled to get an amount of Rs.33920/- which is the amount after deducting 20% depreciation from Rs.42400/- the sum insured.

    In the result the petition is allowed and opposite party is directed to pay an amount of Rs.33920/- to the complainant within one month from the date of receiving the copy of the order along with cost of Rs.500/-.
  • adminadmin Administrator
    edited September 2009
    [FONT=Trebuchet MS, sans-serif]Present: Smt.Seena.H, President[/FONT]
    [FONT=Trebuchet MS, sans-serif]Smt.Preetha.G.Nair, Member[/FONT]
    [FONT=Trebuchet MS, sans-serif]Smt.Bhanumathi.A.K, Member[/FONT]
    [FONT=Trebuchet MS, sans-serif]C.C.No.80/2007[/FONT]


    [FONT=Trebuchet MS, sans-serif]Radhakrishnan,[/FONT]
    [FONT=Trebuchet MS, sans-serif]Embanath House,[/FONT]
    [FONT=Trebuchet MS, sans-serif]Peruvemba (P.O),[/FONT]
    [FONT=Trebuchet MS, sans-serif]Palakkad. - Complainant[/FONT]
    [FONT=Trebuchet MS, sans-serif](By Adv.K.K.Menon)[/FONT]
    [FONT=Trebuchet MS, sans-serif]Vs[/FONT]
    [FONT=Trebuchet MS, sans-serif]United India Insurance Company Ltd.[/FONT]
    [FONT=Trebuchet MS, sans-serif]Palakkad Office represented by its[/FONT]
    [FONT=Trebuchet MS, sans-serif]Manager,[/FONT]
    [FONT=Trebuchet MS, sans-serif]10/290, G.B.Road,[/FONT]
    [FONT=Trebuchet MS, sans-serif]Palakkad. - Opposite party[/FONT]
    [FONT=Trebuchet MS, sans-serif](By Adv.C.Mohanram)[/FONT]
    [FONT=Trebuchet MS, sans-serif]O R D E R[/FONT]
    [FONT=Trebuchet MS, sans-serif]By Smt.Seena.H, President[/FONT]


    [FONT=Trebuchet MS, sans-serif]The case of the complainant in brief is as follows:[/FONT]


    [FONT=Trebuchet MS, sans-serif]Complainant's daughter had purchased a new Hero Honda Passion Motor cycle. Vehicle was insured with the opposite party under policy No.101201/31/06/01/00001830 with effect from 11/05/2006 to 10/05/2007. The policy was a comprehensive policy additionally loaded with a premium of Rs.50 under the head Personal Accident coverage. Subsequently vehicle was registered. The motor cycle was driven by petitioner's son who was having a valid driving licence and complainant's daughter used to sit a pillion rider and go to office. On 17.6.2006 the vehicle met with an accident and complainant's daughter who was sitting as a pillion rider sustained head injury and succumbed to death. Her brother, who is having valid driving licence was driving the vehicle at that time. Complainant applied for claim under personal accident coverage. But opposite party on 17/5/2007 has sent letter repudiating the claim stating the insured does not confirm with conditions 2nd under section III of the policy. According to the complainant, vehicle was driven by his son who is having a valid driving licence. The act of opposite party is clear breach of indemnity offered by the company by accepting Rs.50/- as premium for personal accident coverage and severe deficiency of service on their part. Hence the complainant is claiming Rs.1,00,000/- being the claim amount under personal accident coverage and Rs.25,000/- as compensation and cost of proceedings.[/FONT]
    [FONT=Trebuchet MS, sans-serif]Opposite party filed version contending the followings. Opposite party admits the policy. As per the terms and conditions of the policy issued, in order to get personal accident coverage for owner-driver, the following conditions are to be satisfied.[/FONT]
    [FONT=Trebuchet MS, sans-serif]a. The owner-driver is the registered owner of the vehicle insured.[/FONT]
    [FONT=Trebuchet MS, sans-serif]b. The owner-driver is the insured named in the policy and [/FONT]
    [FONT=Trebuchet MS, sans-serif]c. the owner-driver holds an effective licence.[/FONT]


    [FONT=Trebuchet MS, sans-serif]According to opposite party, the insured was not holding effective driving licence to drive the vehicle involved in the accident. Moreover the driver is not a registered owner of the insured and the driver is not the owner and insured named in the policy. Since there is violation of policy conditions, opposite party is not liable to pay any amount to the complainant as per the policy. Immediately on receiving the claim form, opposite party issued a repudiation letter stating true facts. As the claim was repudiated on valid reason there is no deficiency of service on the part of the opposite party.[/FONT]


    [FONT=Trebuchet MS, sans-serif]Proof affidavit was filed by both parties. Exts.A1 to A5 and Ext.B1 was marked on their respective sides.[/FONT]


    [FONT=Trebuchet MS, sans-serif]Now the issues for consideration are;[/FONT]
    1. [FONT=Trebuchet MS, sans-serif]Whether there is deficiency of service on the part of opposite party? and [/FONT]
    2. [FONT=Trebuchet MS, sans-serif]If so, what is the reliefs and costs?[/FONT]


    [FONT=Trebuchet MS, sans-serif]Points 1 & 2: Opposite party has admitted the policy issued to the daughter of the complainant. The only reasons stated by the opposite party in repudiating the claim of the complainant is that the insured does not hold an effective driving licence to drive the motor vehicle. As per their policy condition stated in Ext.B1, in order to get personal accident coverage for owner-driver, owner-driver should possess effective licence to drive the vehicle.[/FONT]


    [FONT=Trebuchet MS, sans-serif]Perusing the conditions stipulated in Ext.B1, we are of the view the said conditions apply in cases where the owner and driver is one and the same persons i.e owner cum driver. That is not the case in this particular matter. Complainant's daughter is the insured and registered owner of the vehicle. Vehicle was driven by the brother of the insured who is having a valid driving licence. This is evident from Exts.A1 and A2. Hence the act of opposite party in repudiating the genuine claim of the complainant amounts to deficiency of service.[/FONT]
    [FONT=Trebuchet MS, sans-serif]In view of the above discussions we allow the complaint. Opposite party is directed [/FONT]
    [FONT=Trebuchet MS, sans-serif]to pay an amount of Rs.1,00,000/- (Rupees One lakh only) being the claim amount and Rs.6,000/- (Rupees Six thousand only) as compensation and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings. Order shall be complied within one month from the date of receipt of the order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realisation.[/FONT]
  • adminadmin Administrator
    edited September 2009
    ORDER BY SRI.K. VIJAYAKUMARAN, PRESIDENT

    This is a complaint for realization of insurance amount.

    The averments in the complaint can be briefly summarized as follows:

    The complainant is a retired L.P. School Headmistress. The complainant has taken a Insurance policy from the 2nd opp.party through one Mr. Rav eendran Pillai who is an agent of the opp.parties. As per the terms and conditions of the policy if the complainant contracts any decease or illness which required hospitalization the expenses as impatient will be paid by the opp.party subject a the maximum of Rs.15,000/- While the policy was in force the complainant sustained headache and she approached M/s. Upasana Hospital, Kollam where she was admitted on 9.3.2004 and was treated as an inpatient and she was discharged on 11.3.2004. Again she was admitted in the same hospital and for better treatment she was referred to Amrita Institute of Medical Science, Cochi . In the Amritha Institute of Medical Science she was admitted on 16.3.2004 and after examination and investigation she was diagnosed as Mild Falicine Meningioma for which she underwent a surgery known as Left Parietal f Parasagiffal Craniotamy and Simpson’s grade II Excision on 19.3.2004 and she was discharged on 26.3.2004. In the above hospital lthe complainant incurred an expenditure of Rs.43,242/- towards hospital charges. When the complainant filed a claim under the policy the same was repudiated by the opp.parties on the grounds that the disease for which she had undergone treatment was pre-existing. Hence the complaint.

    The opp.party filed version contending, interalis, that the complainant is not maintainable either in law or on facts. This Forum has no territorial jurisdiction to entertain this complaint. The complainant has approached the Forum with unclean hands . The definition complaint, complainant, Consumer Dispute service as defined in section 2[1] of Consumer Protection Act do not cover the claim made out in the complaint. The opp.party had issued an insurance policy covering the complainant and her family members under Universal Health Insurance Scheme for a period from 26.12.2003to 25.12.2004. As per the coverage given under the policy the insured persons are eligible to get a medical reimbursement for hospitalization and treatment expenses to a maximum of Rs.15,000/- subject to the terms and conditions governing the policy. The opp.party has issued the Universal Health Insurance Policy to the complainant fully trusting the declaration given in the proposal form submitted by her which shall form the very basis of the insurance contract. The complainant has given incorrect answer or particulars for the questionnaires given in the proposal form. The complainant infact was suffering from the symptoms of Mid Falcine Meningioma about 1 year prior to the commencement of the policy as the medical history issued from Amritha Institute of Medical Science. The complainant was suffering from gradual onset of generalized headache, which was progressing over the past two months associated with inability on walking before her admission at Upasana Hospital on 9.3.2004. Apart from that the complainant had a further episode of blackout about one year back before her admission at Upasana Hospital for which she had undergone investigation. The above facts were honestly disclosed by the complainant to the doctor at Amrita Institute of Medical Science land Research Center . As per the medical history revealed by the complainant before the treated doctor it is evident that she was suffering from gradual onset of generalized headache before it was aggravated over the past two months prior to her treatment at Upasana Hospital. The complainant obtained the insurance policy commencing from 26.12.2003 only and she got admitted at Upasana Hospital, Kollam on 9.3.2004, . According to the admission made by the complainant herself before the treated doctor at AIMs, she was suffering from severe headache for a period at least from 9.1.2004 and prior to that she was suffering from generalized headache for a considerable period. So the complainant was suffering from the disease for which she had treated much prior to her joining in the insurance scheme and the said material facts has been deliberately suppressed by the complainant in the proposal form submitted by her before the opp.party. As per condition No.4[2] of the Universal Health Insurance Policy any disease contracted by the insured person during the first 30 days from the commencement date of the policy is excluded. As per exclusion clause the company shall not be liable to make any payment under the policy in respect of any expenses incurred by the insured person relating to the diseases which have been in existence at the time of proposing the insurance. Pre-existing means the complications arising from pre-existing disease will be considered part of that pre existing condition. In the instant case the complainant was fully aware of the fact that she was suffering from the diseases of neurological problems at the time of proposing for the insurance and as such the opp.party is not liable to make any payment to the complainant as per the specific exclusion clause in the policy. The opp.party has repudiated the claim of the complainant on genuine land valid ground . There is no deficiency in service on the part of the opp.parties. Hence the opp.party prays to dismiss the complaint.

    Points for consideration are::
    1.[FONT=&quot] Whether the complainant is entitled to get Insurance amount?[/FONT]
    2.[FONT=&quot] Whether there is deficiency in service on the part of the opp.parties ?[/FONT]
    3.[FONT=&quot] Reliefs and costs[/FONT]
    For the complainant PW.1 is Examined. Ext.P1 to P9 are marked.
    For the opp.parties DW.1 is examined. Ext. D1 to D6 are marked.

    Points:
    As a matter of fact policy is admitted . The complainants case is that she was admitted in the Amritha Institute of Medical Sciences in connection with her illness and when she preferred the claim the same was repudiated as per Ext.P8 which is illegal.


    The opp.parties repudiated the claim on two grounds. Firstly on the ground that the complainant was suffering from pre existing disease. According to the opp.parties the complainant herself has stated in Ext.P9 to the doctor at the Amritha Institute of Medical Sciences and Research Centre that she had an episode of black out one year prior to that date but she has suppressed the same while giving Ext.D2. Proposal Form which is a deliberate suppression of material fact which would vitiate the policy. It is to be pointed out that on investigation nothing wrong was noticed and no treatment has been taken by the complainant for the same . If black out was in connection with any disease naturally some treatment or medication would have been necessary. So the omission to mention black out in Ext.D2 proposal Form in our view has no significance and it cannot be said that there is any material suppression. Apart from that Note of exclusion clause 4.2 of Ext. D1 says that exclusion 4-1 and 4-2 shall not apply if the insured has not taken any consultation treatment or mediccation

    The second ground of repudiation is that the claim is inadmissible as it is hit by exclusion clause 4.2 of the policy. Exclusion clause 4.2 says that any disease contracted by the insured during the 1st 30 days from the commencement date of policy the company shall not be liable to make any payment under the policy. It is argued by the learned counsel for the opp.parties that in Ext.P9 the complaint herself has stated to the doctor that she was having generalized headache for 2 months with inability of walking prior to her admission in the AIMSRC. On 16.3.2004. Prior to going to AIMSRC the complainant had gone to Upasana Hospital, Kollam on 9.3.2004 and was discharged on 11.3.2004 for the headache and was again readmitted on 15.3.2004 and thereafter she was referred to Amritha Institute of Medical Scie4nce and Research Centre. So according to the learned counsel for the opp.parties the on set of headache is at least from 9.1.2004 and the policy has been commenced from 26.12.2003 which means that the insured has contracted the disease within 15 days of the commencement of policy and as such the claim is hit by exclusion clause 4.2 As pointed out earlier the complainant herself has stated to the doctor that she was suffering from gradual onset of generalized headache which was progressing over the past 2 months associated with inability to walk PW.1 has no case that the insured has stated so by any mistake. Not even a suggestion was made to PW.1 that it is due to any inadvertent mistake. Therefore we are of the view that so we fee that we shall not be justified in interfering with the repudiation. Point found accordingly.
  • adminadmin Administrator
    edited September 2009
    1
    Smt.Vidya S.Bhandary,
    W/o Late Suresh Bhandary,
    “Sai Kripa Nilaya”,
    B.H.Road, Balakur,
    Kundapura Taluk,
    Udupi District.

    (Sri S.P.Nayak, Advocate for the Complainant)
    …………. Complainant
    Versus

    The Branch Manager,
    United Indian Insurance Co. Ltd.,
    Bridge Road, Balmatta,
    Mangalore- 575 002.

    (Sri Dinesh B.Shetty, Advocate for the Opposite Party)
    Opposite Party
    WRITTEN BY SRI P.C.GOPAL, PRESIDENT

    1. The Complainant has filed this complaint alleging deficiency in service against the Opposite Party and prayed for a direction to the Opposite Party to pay to the Complainant Rs.1,00,000/- being the amount of personal accident cover with interest, plus compensation and cost of the proceedings, etc in all a sum of Rs.2,29,671/-
    2. The case of the complainant is that she is the wife of one Suresh Bhandary, who died in a road accident at 13.30 hours on 25.07.2007 near Koteshwara Panchayath Office, NH 17, Kundapura Taluk, Udupi District. The deceased was owner of motor cycle bearing registration No.KA 20 S 9308. On that crucial day the deceased was on his way from his home towards Dr.N.R.Acharya Memorial Hospital, Koteshwara to meet his sister-in-law. While driving the vehicle, the deceased was holding valid LLR licence. It is ruled by the law courts that LLR is also a valid licence.
    Contd…….2
    3. The Complainant submits that the accident in question occurred due to the rash and negligent driving of Tanker bearing No.KA 04 AB 8899 by its driver in very high speed without looking over the traffic rules. The deceased was driving his vehicle on the extreme left side of the road, slowly by following traffic rules. The deceased was not offender of the accident but it is the driver of the tanker who has been charge sheeted as offender.

    4. After the death of her husband as aforesaid, the Complainant lodged claim before the Opposite Party for payment of compensation as per the contract of insurance. The Opposite Party illegally, high handedly and baselessly repudiated the claim on the ground that the deceased was not holding valid driving licence and that no “L” plates were hung on the front and rear of the vehicle. It is submitted that the accident did not occur for that reasons and therefore the reasons assigned by the Opposite Party in repudiating the claim is legally unsustainable. The Opposite Party has clearly admitted that vehicle of the deceased was insured with it and the contract of insurance provides for payment of compensation for personal accident cover. The repudiation as done by the Opposite Party vide their letter dated 07.01.2008 is not legally feasible.

    5. The Complainant submits that from the above narrated true facts, it is conclusively proved that repudiation of the claim as done by Opposite Party is baseless and the reason assigned by them is only a myth. Therefore, the Opposite Party is guilty of deficiency in service as stated above. The deceased was a “consumer” of insurance services and the Complainant as the legal heir of the deceased is also consumer within the meaning of the C.P. Act. Hence this complaint.

    6. After service of notice of the complaint the Opposite Party appeared through the counsel and filed the version contending that the complaint is false and frivolous and not maintainable either in law or on merits.

    7. The Opposite Party denied that the Complainant is the wife of one Suresh Bhandary who died in a road accident at 13.30 hours on 25.7.2007 at Koteshwara. The Opposite Party admits that the deceased Suresh Bhandary was the owner of Motor Cycle bearing Regd. No.KA 20-S/9300 and he was died on 25.7.2007 at Koteshwara on Road Traffic Accident and also admits that at the time of accident the deceased was holding learner’s licence.
    Contd…….3
    8. The Opposite Party denies that the accident in question occurred due to rash and negligent driving of another vehicle bearing Regd. No.KA04 AB 8899 by its driver in very high speed overlooking traffic rules. The Opposite Party admits that the chargesheet filed against the driver of the aforesaid tanker. Opposite Party admits that after the accident and death of her husband the Complainant lodged claim before the Opposite Party for payment of compensation as per the contract of Insurance. But the Opposite Party denies that the Opposite Party illegally and baselessly repudiated the claim on the ground that the deceased was not holding valid licence and that no “L” plate were hang on the front and rear of the vehicle. The Opposite Party further denies the allegation that the alleged accident did not occur for that reason and that the reason assigned by the Opposite Party is repudiating the claim is unsustainable.

    9. The Opposite Party further submits that deceased Suresh Bhandary was the Regd. owner of the Motor cycle bearing Regd. No.KA20 S 9308. The said vehicle had insured with the Opposite Party vide policy No.070803/31/06/01/00003752 and the same is valid from 14.12.2006 to 13.12.2007. The Opposite Party admits that on 25.7.2007 while the deceased was traveling was rider in the said vehicle alongwith his daughter met with an accident and died on the spot. It is also admitted that at the time of the accident deceased insured himself drove the said vehicle and he was possessed the LLR licence to ride the said vehicle. It is also admitted that after his death the Complainant has lodged claim before the Opposite Party to get insurance amount under the policy contract. On perusal of the records submitted by the Complainant and after applying its mind under the terms of the policy in contract the Opposite Party has rightly repudiated the claim and the same is intimated to the Complainant on 7.1.2008 by the regd. post.

    10. The Opposite Party submits that as per the terms of the policy, the personal accident cover for owner-driver is subject to the owner-driver who holds an effective driving licence in accordance with the provision of Central Motor Vehicle Rules, 1989 at the time of the accident. In the instant case the rider was holding learner licence to drive the said vehicle. The Learner licence issued to deceased Suresh Bhandary contains as follows:
    “WARNING
    The Attention of the holder of this licence is drawn to Rule 3 of Central Motor Vehicle Rule 1989 which prohibits from driving any motor vehicle unless he has besides him a person duly licenced to drive the vehicle and in every case, the vehicle carries L plates both in rear of the vehicle.”
    Contd……..4
    11. The Leaner’s Licnece issued to aforesaid Suresh Bhandary subject to the above condition and it was mentioned as warning to the holder of the licence. Consequently, the aforesaid Suresh Bhandary could not have driven the vehicle without following said Mandatory condition stated in the driving licence. When the licence itself was issued subject to the said condition, the holder cannot drive the vehicle in violation of the said condition. In this case, the policy issued also made it mandatory for the insured to follow the said rule strictly. The policy also said that the COVER IS SUBJECT TO RULE 3 OF THE CENTRAL MOTOR VEHICLE RULES 1989. The Insured while riding the vehicle had admittedly violated the condition there was no instructor sitting beside him and further he had not hanged any ‘L’ Plates both in the rear side of the said vehicle as per the terms of the licence which incorporated in the Licence. Hence admittedly the rider-owner-insured had violated the terms of the cover subject to which policy was issued.

    12. In view of the violation of the terms of the policy the Opposite Party has repudiated the claim of the Complainant as per law. There is no deficiency in service on the part of the Opposite Party.

    13. It is submitted that the Complainant has already received compensation under Motor Vehicle Claims from insurer of the aforesaid tanker which involved in the said accident in MVC No.1021/2007. A sum of Rs.4,50,000/- with this Opposite Party and her injured daughter also got the compensation. There is no cause of action arose for the Complainant against this Opposite Party and the complaint is filed with an ulterior motive. Hence Opposite Party prayed for the dismissal of the complaint.

    14. The Complainant has produced 6 documents which are marked as Ex.C-1 to Ex.C-6 and the Opposite Party has produced 5 documents which are marked as Ex.R-1 to Ex.R-5. Parties have filed affidavit, interrogatories and reply affidavit. We heard the arguments of both sides.

    15. Now the points that arise for our consideration are as follows:
    1) Whether the Opposite Party is justified in repudiating the claim of the Complainant?
    2) Whether the Opposite Party has committed deficiency in service?
    3) Whether the Complainant is entitled for the relief claimed?
    4) What Order?
    Contd…….5
    Point No.1:
    16. It is an admitted fact that the Complainant is the wife of one Suresh Bhandary who died in a road accident at 13.30 hours on 25.7.2007 at Koteshwara and said deceased Suresh Bhandary was the owner of the motor vehicle bearing regd. No.KA20 S 9300 and he died on 25.7.2007 at Koteshwara on road traffic accident. Deceased Suresh Bhandary was the regd. owner of the motor cycle bearing regd. NO.KA20 S 9308 and the said vehicle had insured with the Opposite Party vide policy bearing No. 070803/31/06/01/00003752 and the same is valid from 14.12.2006 to 13.12.2007. It is an admitted fact that on 25.7.2007 while the deceased was traveling as a rider on the said vehicle alongwith his daughter met with an accident and died on the spot. It is also admitted that at the time of the accident deceased insured himself was riding the said vehicle and he possessed learning licence to ride the said vehicle

    17. The counsel for the Complainant argued that a person holding learner licence is entitled to drive the vehicle and the aforesaid vehicle was driven by the husband of the Complainant. The policy was in force, under the contractual obligation, the insurance company is liable to pay the compensation as per the policy condition. The repudiation by the Opposite Party is not justified. The counsel for the Complainant produced a citation reported in Accidents Claims Journal 2004 (Volume I), SLP(C) No.9027 of 2003, .he referred the head note which reads as under:
    Motor Vehicles Act, 1988, Section 149(2) (a) (ii) – Motor insurance – Learner’s licence – Liability of Insurance company – Whether insurance company would be liable to satisfy an award if the vehicle was driven by a person holding a leaner’s licence at the time of accident – Held : Yes; person holding learner’s licence is entitled to drive a vehicle.

    18. Opposite Party argued that as per the terms of the policy the PERSONAL ACCIDENT COVER FOR OWNER/DRIVER is subject to the owner-driver holds an effective driving licence in accordance with the provision of Central Motor Vehicle Rules, 1989 at the time of the accident. In the instant case the rider was holding learner’s licence to drive the said vehicle. The learner’s licence issued to the deceased Suresh Bhandary states in bold letter as follows:
    “WARNING
    The Attention of the holder of this licence is drawn to Rule 3 of
    Central Motor Vehicle Rule 1989 which prohibits from driving
    any motor vehicle unless he has besides him a person duly licenced
    to drive the vehicle and in every case, the vehicle carries L plates
    both in front and rear side of the vehicle.”
    Contd…..6
    19. Said Suresh Bhandary ought not to have driven the vehicle without following the said mandatory condition stated in the driving licence. When the licence was issued subject to the said condition the holder cannot dire the vehicle in violation of the said condition. In this case the policy issued was also made it mandatory of the insured to follow the said rules strictly. The policy also states that the cover is subject to rule 3 of the Central Motor Vehicle Rules 1989. The insured while driving the vehicle had admittedly violated the conditions as there was no instructor setting beside him the police records shows only his 5 years old daughter sitting beside him. Further he had not hanged any ‘L’ Plate both the rear and front side, as per the term which incorporated in the licence. Hence admittedly rider-owner-insured had violated the terms of the cover subject to which policy was issued, the repudiation by the Opposite Party is justified.

    20. As per the contract of Motor Insurance ‘ Any person including the insured can entitle to drive the insured vehicle provided that the person who is driving holds an effective and valid driving licence to drive the category of the vehicle insured. It is an important condition incorporated in the Motor Insurance Policy. The terms of the contract shall be binding on both the parties. Moreover Section 3 of Motor Vehicle Act, 1939 reads as under:
    “No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to himself authorizing him to drive the vehicle and no person shall so drive a motor vehicle as a paid employee or shall so drive transport vehicle unless his driving licence specifically entitled him so to do”

    He relied upon the following citations to substantiate his contention
    1) 2007(4) KCCR 2662
    2) 2006(1) 107 KCCR 107
    3) 2008 ACJ 2287
    4) 2006(1) KCCR 323
    5) 2008 ACJ 2860
    6) 2008 ACJ 2161
    7) III(2000) CPJ 59
    8) II(1996) CPJ 111

    21. We have gone through the entire records placed before this Forum by the parties and in view of the above submissions, we observe that deceased Suresh Bhandary was the owner-rider-insurer, while he was riding the vehicle he met with an accident and died on the spot. Ex.C-2 is the copy of the FIR with the statement of Harish Bhandary. On going through aforesaid document it is clear that on the date of accident Suresh Bhandary was driving the vehicle and his 5 years aged daughter Savinaya was alongwith him as a pillioner and in the said
    Contd……7
    accident Suresh Bhandary was expired on the spot and his daughter had sustained injuries on her left hand. This fact is not disputed. The only reason for repudiation the claim of the Complainant is that, as per the provision in rule 3 of the Central Motor Vehicle Rules, 1989 which prohibits him from driving any Motor Vehicle unless he has besides him a person duly licenced to drive the vehicle and in every case the vehicle carries ‘L’ Plates both in front and rear side of the vehicle and the rider late Suresh Bhandary had not complied with the provision laid down in rule 3 of the Central Motor Vehicle Rules, 1989. Hence the claim lodged by the Complainant is repudiated. In the present case, there was no “L” Plate on the front and rear of the vehicle and there was no person alongwith him duly licenced to drive the vehicle in question. Therefore, there is clear violation of the terms of the policy. As per the contractual obligation and according to the terms of the policy the Complainant is not entitled for the claim. We hold that the Opposite Party is justified in repudiating the claim of the Complainant Hence, we answer the point No.1 in the Affirmative.

    Pont No.2
    22. In view of the affirmative answer to point No1, we hold that there is no deficiency in service on the part of the Opposite Parties. Hence, we answer the Point No.2 in the Negative. :

    Point No.3 and 4:
    23. In view of the Affirmative answer to point No.1 and Negative answer to point No.2, we hold that the Complainant is not entitled for the reliefs. Hence, we answer the point No.3 also in the Negative.

    24. In the result, we pass the following:
    ORDER
    Complaint is dismissed. Parties to bear their own costs.
  • adminadmin Administrator
    edited September 2009
    Syed Ajaz Ahamed
    S/o. Syed Basha Sab,
    Aged about 25 years, Complainant
    R/o. Akkirampura,
    Kunigal taluk
    (By advocate Sri.K.S.Lokesh)

    AND

    1.The Senior Divisional Manager,
    United India Insurance Co. Ltd,
    Divisional office, BH Road, Opposite parties
    Tumkur
    2.The Branch Manager,
    Cauvery Kalpatharu Grameena Bank,
    Akkirampura,
    Koratagere taluk
    (OP No.1- by advocate Smt.B.R.Latha)
    (OP No.2- by advocate Sri.G.Sathyanarayana Reddy)

    ORDER

    This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act for short)

    2. Through this complaint, the complainant prays for an award and order against the Opposite Parties (hereinafter called as the OPs for short) to direct the 1st OP to pay damages of Rs.97,836/- with interest at 12% per annum from the date of accident till the date of realisation in respect of autorikshaw vehicle bearing Reg.No.KA-06-A-6509.

    3. The facts given rise to institute the complaint may be summarized as thus:
    It is his case that, he is an absolute owner of goods carrying three wheelers autorickshaw bearing Reg.No.KA-06-A-6509 and he had availed vehicle loan from the 2nd OP by hypothecating the said vehicle in question. The said vehicle was insured with the 1st OP vide policy No.071400/31/07/01/00007300 and valid from 10-9-07 to 9-9-08 and the said vehicle was insured in the name of the M/s K.G.B., Akkirampura-A/c Syed Ajaz Ahamed.

    4. It is further submitted that, the said vehicle met with an accident on 4-4-2008 near Beladara, Tumkur-Koratagere Road, Kora hobli, Tumkur taluk, when hit by a Canter bearing Reg.No.KA-06-A-7700 which was driven in a rash and negligent manner at a high speed from the opposite direction. As a result of the accident, the said vehicle was badly damaged. The Kora police had lodged FIR under Section 279 of IPC against the driver of the Canter vehicle in Cr.No.43/2008.

    5. It is further submitted that, the complainant has shifted the vehicle to MKS Auto Centre, Shirani Road, Tumkur on 14-4-2008 by toeing through a hired vehicle and paid Rs.300/- as hire and toeing charges. After that, the complainant has intimated to the 2nd OP and as well as to the 1stst OP has referred the matter to its authorised surveyor and inspected the damaged vehicle and submitted his initial survey report to the 1st OP. The owner of MKS Auto centre has estimated cost of Rs.91,996/- for repair of the said vehicle. OP. The 1

    6. It is further contended that, the 2nd OP being a bank which financed the complainant had orally requested the 1st OP on several times to settle the claim. But the 1st OP has failed to settle the claim on one pretext or the other and postponed the claim settlement. That on 17-5-2008 the 2nd OP wrote a letter to the 1st OP for early settlement of the claim. Instead of settling the claim, on 18-7-2008 the 1st OP has sent a repudiation letter to the 2nd OP stating that the driver of the vehicle was not having driving licence to drive LMV (Transport), but only had DL to drive Autorickshaw (Cab) and hence it is unable to settle the claim.

    7. It is further submitted that, the RTO, Tumkur has issued driving licence to the complainant to drive “Autorickshaw (Cab)”. Immediately, after receipt of the untenable repudiation letter dated 17-8-2008, the complainant has approached the RTO Inspector and enquired about the effectiveness of the DL issued by RTO. The said authority told that, the DL so issued is to drive both passenger auto and as well as goods carrying autorickshaw and as such the D.L. issued by RTO, Tumkur was effective and valid DL to drive the vehicle in question.

    8. It is further submitted that, the 1st OP has committed act of deficiency of service to the complainant by intentionally delaying to settle the claim. The complainant is a very poor businessman and has availed vehicle loan from the 2nd OP. Due to the accident, the complainant could not pay the installments to the 2nd OP and has become a defaulter. Apart from this burden, the complainant has to pay landing charges worth of Rs.20/- per day to MKS auto centre. It is alleged that, on account of a financial crises, he could not meet the expenses of repairs of the vehicle. The damaged vehicle is still today parked in auto garage.

    9. The complainant has claimed the damages as here under:
    a) Spares Rs.68,996/-
    b) Labour expenses Rs.23,000/-
    c) Toeing charges Rs.300/-
    d) Land parking charges Rs.5540/-
    e) Total Rs.97,836/-.
    Hence, this complaint.

    10. The OPs who have been notified of the complaint entered appearance through their counsel and resisted the same.

    11. The gist of the objections is as follows:
    In the objections filed by the 1st OP, it is contended that, the complaint is not maintainable either in law or on facts and the same may be dismissed. This OP while admitting the fact that, the complainant is the absolute owner of the goods carrying autorickshaw bearing Reg.No.KA-06-A-6509 and insured the vehicle with them under policy No.071400/31/07/00007300 which was valid from 10-9-07 to 9-9-08, however contended that it was insured in the name of M/s.KGB, Akkirampura A/c Syed Ajaz Ahamed.

    12. It is further contended that, the allegations made in Para No.3 and 4 of the complaint are not within in his knowledge and he came to know of the accident only after the complainant submitted the necessary documents.

    13. It is further contended that, on scrutiny of the papers regarding motor accident claim under the policy No.071400/31/07/01/ 00007300-KA-06-6509, it was observed that, the person who was the driver and owner of the alleged vehicle had no valid driving licence to drive goods vehicle. Therefore, as per the policy condition, the complainant had not satisfied the mandatory requirement of law. In the instant case, the owner Mr. Syed Ajaz Ahamed who was also the driver at the time of accident was eligible to driver “Autorikshaw cab” but not LMV (transport) which was driven by him at the material point of time. Immediately this OP has sent repudiation letter dated 18-7-2008 to the complainant stating that, the driver of the alleged vehicle was not having driving licence to drive LMV (Transport) but only having DL to drive Autorickshaw (cab). Therefore, the 1st OP has repudiated the claim. This OP while emphatically denying the other complaint averments as false and untenable interalia pleaded that, the complainant is not having valid categorical DL which is mandatory as per MV Act as well as under the terms and conditions of the policy. Accordingly, he prays for dismissal of the complaint.

    14. The 2nd OP in its objections, while admitting the fact that the complainant is an absolute owner of the goods carrying 3 wheeler autorickshaw bearing Reg.No.KA-06-A-6509 has contended that the complainant had availed vehicle loan from this OP by hypothecating the said vehicle and it was insured with the 1st OP vide policy No.071400/31/07/01/00007300. The said policy was valid from 10-9-07 to 9-9-08. The said vehicle was insured in the name of M/s. KGB Akkirampura – A/C Syed Ajaz Ahamed. It is further admitted that, this OP has orally requested the 1st OP on several occasional to settle the claim and also admitted that, the RTO, Tumkur has issued driving licence to the complainant to drive “Autorickshaw (Cab).

    15. It is further contended that, other complaint averments are not within the knowledge of this OP. This OP further submitted that, this OP has sanctioned and disbursed loan to the complainant for the purpose of purchase of autorickshaw. The said autorickshaw was hypothecated to this OP as security. It is further submitted that, the said vehicle was insured with the 1st OP covering all the risks. The grievance of violation of policy conditions has to be answered by the 1st OP alone and not by this OP. This OP has also requested the 1st OP to settle the claim amount of the complainant. Inspite of request, the 1st OP has not settled the claim amount. There is no deficiency of service from this OP. Hence, as against this OP, the complaint is not maintainable and liable to be dismissed. Accordingly, he prays for dismissal of the complaint.

    16. In support of the case, the complainant and the 1st OP have filed their affidavits and they have also pressed into service of several documents. We have heard the learned counsels appearing for the parties. We have also examined the materials available on records.

    17. The questions that arise for our considerations are:
    1)Is there any deficiency of service by the OPs?
    2)Is the complainant entitled for the reliefs as claimed?

    18. Our findings on the above questions are here under.
    Point No.1: Yes
    Point No.2: As per order
    REASONS

    19. Before proceeding to embark upon our discussions on the aforesaid points formulated for consideration, it is necessary to state a few undisputed facts which would minimize our discussion. The fact that, the complainant is the owner of the vehicle in question and possessed driving licence to drive the autorickshaw; the vehicle in question was hypothecated in favour of 2nd OP towards the loan raised on the said vehicle, and also the fact that the vehicle in question met with an accident and as a result it was badly damaged are concerned, there is no dispute. Similarly, it is not in dispute that, the complainant did inform the 1st OP and the 2nd OP to settle the claim; the 2nd OP inturn being a financer had requested 1st OP to honour the claim of the complainant. However, the claim came to be repudiated on the question of not possessing a valid DL by the complainant. Therefore, let us proceed to examine, as to whether there is any merit in the contention of the 1st OP.

    20. A careful perusal of the driving licence issued by the competent authority in favour of the complainant, it is seen that, he was authorised to drive autorickshaw cab with effect from 9-2-2005 and it was renewed upto 18-3-2011. In the renewal endorsement, it is specifically mentioned by the licensing authority that, he was authorised to drive autorickshaw transport with effect from 19-3-2008 to 18-3-2011. Therefore, from this document, it is seen that, on the date of accident i.e. on 4-4-2008 he was not authorised to drive autorickshaw transport. From the copy of the DL produced by the complainant it is seen that, he was authorised to drive the autorickshaw cab with effect form 9-2-2005 to 8-2-2008. The complainant has not produced subsequent renewal of the driving licence. However, from the document produced by the 1st OP, it is seen that, driving licence was renewed from 19-3-2008 to 18-3-2011. As stated earlier, from these documents, it is clear that, he was authorised to drive autorickshaw cab only. From the insurance policy, it is seen that, the said vehicle bearing Reg.No.KA-06-A-6509 was insured with the 1st OP. The insurance policy was issued under the caption “GOODS CARRYING (3-WH AND PEDAL CYCLES)-PUBLIC CARRIERS PACKAGE POLICY, Policy No.: 071400/31/07/01/ 00007300 vehicle No.KA-06-A-6509”. At this juncture, it is relevant note that, nowhere in the complaint it is alleged that, the vehicle in question was not used contrary to the terms and conditions of the police nor the 1st OP has placed any materials to show that, the vehicle in question was used as transport vehicle at that, relevant point of time. From the copy of the FIR, it is seen that, the allegation are as follows:
    [FONT=&quot][/FONT]

    21. Therefore, when admittedly the vehicle in question was insured with the 1st OP covering all the risks, it is fundamental obligation of the 1stst OP himself it is seen that, he was authorized to drive autorickshaw transport with effect from 19-3-2008 to 18-3-2011. OP is to satisfy the claim of the complainant. But instead of entertaining the claim of the complainant, they repudiated the claim on the ground that, the complainant had not possessed the categorical driving licence to drive LMV transport. As stated earlier from the document produced by the 1
    22. Therefore, it cannot be said that, the complainant had no driving licence or he had driven the vehicle contrary to the terms and conditions of the policy. In the light of these facts, the judgments relied upon by the learned counsel appearing the 1st OP reported in 2008 ACJ 2161, 2009 ACJ 666 are not squarely applicable to the facts of the case. The facts and circumstances of those cases are totally different from the present case. Therefore, under the circumstance of the case, we hold that, the 1st OP is liable to satisfy his contractual liability.
    23. In so far as, the claim of the claimant for a sum of Rs.97,836/- on heads is concerned, there is no dispute from the other side. That apart from materials placed on records, the complainant has also proved his claim as genuine and not an unrighteous one.

    24. In so far as the claim against 2nd OP is concerned, we find no materials to conclude that the said OP has committed deficiency in service. It is worthwhile to note that, the 2nd OP did request the 1st OP settle the claim of the complainant. When he has promptly acted to the demand of the complainant, we find no deficiency in service. Therefore, the claim against the 2nd OP is liable to be rejected. Accordingly, it is rejected. In the result, we proceed to pass the following:
    ORDER
    The complaint is allowed with costs directing the 1st OP to pay a sum of Rs.97,836/- and cost of Rs.1000/- within 8 weeks of this order, failing which, a sum of Rs.97,836/- shall carrying on interest at the rate of 10% per annum from the date of accident, that on 4-4-2008.
  • adminadmin Administrator
    edited September 2009
    COMPLAINANT Sri. Kumsi Rama, S/o. Late Huchuraya, Aged about 56 years, Retired Police Officer, Karnataka State Police Department, C/o. No. 31, 3rd Main Road, Hanumantha Nagar, Bangalore – 560 019. Advocate (R. Jayaprakash)

    V/s.

    OPPOSITE PARTY

    1. M/s. United India Assurance Company Limited, Divisional Office 011100, II Floor, Sudarshan Building, New No. 27 (Old No. 14), Whites Road, Chennai – 600 014. Advocate (A.M. Venkatesh)

    2. The Manager, IOB, Jayanagara Branch, Bangalore. Advocate (H.V. Nagaraja Rao)


    O R D E R


    This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay the medical bill under the health care policy with interest and pay compensation of Rs.5,00,000/- and for such other reliefs on an allegations of deficiency in service.
    The brief averments, as could be seen from the contents of the complaint, are as under: Complainant got the health policy issued by the OP.1 along with the policy of IOBHC+ issued by OP.2. He enjoyed the said policies from 2003 to 2006. Due to the communication gap he did not continue the said policies after the expiry on 30.12.2006, but he took the policy on 07.03.2007 which was inforce up to 06.03.2008. On 02.05.2007 complainant undergone surgery for PAN CREATD JEJUND STOM at Bangalore Hospital. He was an inpatient and finally he was discharged on 23rd May 2007. Towards the said surgery and hospitalization he incurred expenses of Rs.1,81,979/-.
    After the discharge he made claim to the OP to settle the medical bills, it went in vain. Then he got issued the legal notice on 08.09.2008. Again there was no response. Due to the negligence and hostile attitude of the OP, complainant for no fault of his, is made to suffer both mental agony and financial loss. Under the circumstances he felt the deficiency in service. Hence he is advised to file this complaint and sought for the relief accordingly.


    2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. It is contended by OP.1 that there is no renewal of the earlier policy. The policy which complainant took on 07.03.2007 is a fresh policy. Hence he is not entitled for the earlier benefits. At the time of taking up of the fresh policy complainant is expected to disclose about the pre-existing disease, but he failed to do so. The discharge summary issued by the Bangalore Hospital shows he is a known case of chronic pancreatitis and a DM for the last 1 year and he has also donated the left kidney in the year 2006 itself. Though complainant is aware of the same, he failed to mention the pre-existing disease when he took the fresh policy. Hence OP is not obliged to settle the said medical expenses as it is not covered under the policy. The complaint is devoid of merits. Among these grounds, OP.1 prayed for the dismissal of the complaint.


    3. OP.2 filed the separate version mainly contending that it issued IOBHC+ policy placing on the information furnished by the complainant. The complaint is bad for misjoinder of necessary parties. Complainant is not entitled for the policy benefits when there is no continuity or renewal of the old policies starting from the year 2003. The policy which complainant took for the year 2007 is a fresh policy. Complainant undergone a major surgery within a period of 2 months from the date of taking of fresh policy suppressing the existence of the serious ailment and donation of a kidney. The approach of the complainant is not fair and honest. There is no deficiency in service on the part of the OP.2. The complaint is devoid of merits. Among these grounds, OP.2 prayed for the dismissal of the complaint.


    4. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP’s have also filed the affidavit evidence. Then the arguments were heard.


    5. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP’s? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order?


    6. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order.


    R E A S O N S


    7. At the outset it is not at dispute that the complainant has taken IOBHC+ policy issued by the OP.2 and OP.1 having covered the insurance under the category of health policy from 01.01.2003 to 30.12.2006. Now it is the grievance of the complainant that due to some unavoidable circumstances as he was out of station he could not renew the policy before expiry date that is 30.12.2006. He took the policy on 07.03.2007 which is inforce up to 06.03.2008. The documents to that effect are produced. It is further contended by the complainant that on 02.05.2007 he got admitted at Bangalore Hospital for surgery of PAN CREATD JEJUND STOM, he was operated then he was discharged on 23.05.2007. The documents to that effect are produced.


    8. It is further contended by the complainant that for the said treatment he has spent nearly about Rs.1,81,979/-. The discharge summary and hospital bills are produced. Then he made a claim to the OP’s to settle the bills, but it went in vain. Hence he got issued the legal notice on 08.09.2008. The copy of the legal notice and postal acknowledgement are produced. Again there was no response. The evidence of the complainant appears to be very much natural, cogent and consistent, which finds full support from the contents of the undisputed documents. There is nothing to discard his sworn testimony. As against this unimpeachable evidence of the complainant, the defence set out by the OP appears to be defence for defence sake, may be to shirk their responsibility and obligation.


    9. It is contended by the OP.2 that the policy obtained by the complainant on 07.03.2007 is a fresh policy, hence there is no continuity or renewal of the earlier policies. One thing is admitted that complainant took IOBHC+ policy from OP.2 and health policy from OP.1. We have gone through the said policy copies. The further allegation of the OP is that though complainant is aware of certain ailment that too with regard to donation of one kidney and he being suffering from chronic pancreatitis and DM, he failed to mention the same in his fresh proposal. When it is the health care plus policy an obligation lies on the OP to subject the complainant for the thorough medical examination before accepting his proposal. But that step is not taken by the OP. They simply issued the policy, collected the premium and when the question of payment of medical bills aroused, they have come up with this untenable defence.


    10. The approach of the OP’s does not appears to be as fair and honest. There is a fault committed by the OP’s in not subjecting the complainant for thorough medical examination. In addition to that when OP says that the policy dated 07.03.2007 is a fresh policy, then there should be a fresh proposal. What is the information complainant has furnished in the said proposal about his health conditions or his previous history is not known. The proposal form is not produced by the OP. If OP produced the proposal form and if there is no mention about the so called donation of the kidney and he being a chronic pancreatitis patient with DM, then there would have been some meaning in the defence set out by the OP. But in absence of production of such documents, the bare and vague allegations of the OP rather alone cannot be believed. We do not find force in the defence set out by the OP’s. The repudiation made by the OP’s appears to be unjust, improper and without due application of mind.



    11. Complainant has taken the said treatment within the policy coverage period and when the sum assured is for Rs.2,00,000/- with regard to IOBHC+ status and health care policy scheme, it would have been more fair on the part of the OP to settle the bill immediately. OP’s has not disputed the expenses incurred by the complainant and the documents produced by him. When that is so, the hostile attitude of the OP’s must have naturally caused both mental agony and financial loss to the complainant, that too for no fault of his. We are satisfied that there is a proof of deficiency in service on the part of the OP’s. Hence they are jointly and severally liable to reimburse the medical expenses. Accordingly we answer point nos.1 and 2 and proceed to pass the following:


    O R D E R The complaint is allowed in part. OP’s are jointly and severally directed to settle the claim for Rs.1,81,979/- and pay the said amount to the complainant along with a litigation cost of Rs.1,000/- within 4 weeks from the date of communication of this order. Failing in which complainant is entitled to claim interest at the rate of 12% p.a. on the said amount from June 2007 till realization along with a litigation cost.
  • adminadmin Administrator
    edited September 2009
    COMPLAINT NO. 208 OF 2009

    P.R.Ravi Kumar,
    S/o B.Ramaiah,
    R/at No.153, Puttayyanna Agrahara,
    Shakaladevanapura Post,
    Madure Hobli, Doddaballapur Taluk,
    Bangalore Rural District.
    …. Complainant.
    V/s

    The Manager,
    United India Insurance Company Ltd.,
    No.25, Shankar Narayan Building,
    M.G.Road, Bangalore-1..
    …. Opposite Party
    -: ORDER:-
    This complaint is for a direction to the Opposite Party to pay Rs.1,13,455/- towards reimbursement of repair charges with interest thereon at 24% Per Annum from the date of claim, to pay compensation of Rs.20,000/- towards deficiency in service, Rs.30,000/- towards mental agony, pain and sufferings, on the following grounds;-
    The complainant who is the owner of the vehicle bearing No:KA-43-640 had insured the same with Opposite Party for the period from 01.09.2007 to 31.08.2008. The vehicle met with an accident on 20.09.2007 and a complaint in that regard was lodged with Dabbas Pet Police in Crime No.131/2007. The vehicle was towed from the place of accident to M/S PRERANA MOTORS, Harisinakunte. The Opposite Party was informed about the accident and thereupon Mr.Krishna Murthy – a surveyor was deputed to assess the damage caused to the vehicle. M/S PRERANA MOTORS raised a quotation for Rs.2,08,427/- towards repair charges. On confirmation of reimbursement of the entire cost of repair by the Opposite Party including Rs.4,000/- towards towing charges, the complainant instructed M/S PRERANA MOTORS to carry out the work. After completing the repair work, M/S PRERANA MOTORS raised invoice for Rs.1,78,238/-. The complainant submitted the claim form with all the necessary documents. The Opposite Party issued cheque for Rs.1,03,422/- as against Rs.1,78,238/- the actual expenditure incurred for repairs to the vehicle. The complainant accepted the payment under pretest. But when questioned, the Opposite Party assured to reimburse the balance amount within 10 days. Thereafter in spite of number of personal visits and phone calls, the Opposite Party failed to pay the balance amount. He issued legal notice dated:19.07.2008. But the Opposite Party did not give any reply. Hence, the complaint.
    2. In the version, the contention of the Opposite Party is as under:-
    The complainant had taken motor vehicle policy in respect of the vehicle bearing No.KA:43-640 for the period from 01.09.2007 to 31.08.2008. The vehicle met with an accident on 20.09.2007 and after the accident, the complainant took the vehicle to the nearest service center M/S PRERANA MOTORS for repairs. After getting the information regarding the accident, the Opposite Party deputed Mr.KRISHNAMURTHY – the insurance surveyor to inspect the vehicle and to submit the estimation for repairs. The surveyor after inspecting the vehicle submitted the report on 25.10.2007 estimating the damage at Rs.1,32,556/-. After deducting the painting charges, salvage and rubber parts as per terms and conditions of the policy, the amount payable comes to Rs.1,03,472/-. The claim reimbursement voucher was executed on 16.11.2007 and on the request of the complainant, the claim amount was sent to him in full and final satisfaction of the complainant. After the complainant executing the full and final settlement voucher, the amount was remitted to his account. The complainant has falsely pleaded that he received the sum of Rs.1,03,422/- under protest. The claim has been settled as per the terms and conditions of the policy and the complainant received the amount as full and final settlement. After the lapse of one year three months, he has filed complaint claiming further amount when the claim is not admissible. There is no basis for the complainant to claim Rs.1,13,455/- with interest at 24% Per Annum. If the complainant is aggrieved by the manner in which the claim is processed he has to either invoke arbitration clause under the policy or to approach competent civil court to establish the disputed loss. On these grounds, the Opposite Party has prayed for dismissal of the complaint.
    3. In support of the respective contentions both parties have filed affidavits, copies of documents and written arguments.
    4. The points for consideration:-
    1.[FONT=&quot] [/FONT]Whether the complainant has proved deficiency in service on the part of the Opposite Party?
    2.[FONT=&quot] [/FONT]Whether the complainant entitled to the relief prayed for in the complaint?
    5. Our findings to both points is in the NEGATIVE for the following:-
    -:REASONS:-
    6. According to the complainant himself M/SPRERANA MOTORS raised final invoice for Rs.1,78,238/- towards the repair charges and the op made payment of Rs.1,03,452/- under the insurance policy. Therefore, if at all the complainant is entitled to any balance amount that can be for Rs.74,816/-. But in the prayer column, the complainant has claimed Rs.1,13,455/- towards reimbursement of repair charges. According to the own case of the complainant he is entitled to claim the balance amount which comes to Rs.74,816/-. We fail to understand how the complainant can claim Rs.1,13,455/- towards reimbursement of repair charges as has been claimed.
    7. There is no dispute that the vehicle belonging to the complainant had been insured with Opposite Party for the period from 01.09.2007 to 31.08.2008, the said vehicle met with an accident on 20.09.2007 and on the complainant making claim, the insurance company settled the claim at Rs.1,03,422/-. According to the complainant, M/S PRERANA MOTORS has raised final invoice for Rs.1,78,238/- towards repair charges. Admittedly, on intimation regarding accident, the Opposite Party deputed one Mr.Krishna Murthy – the surveyor to inspect the vehicle and assess the damage. The Opposite Party has produced the report submitted by the surveyor. From this it is seen that the surveyor has assessed the damage at Rs.1,32,556/-. It is the contention of the Opposite Party that out of the assessment made by the surveyor at Rs.1,32,556/- the amount payable towards painting charges, salvage and rubber parts was deducted and Rs.1,03,422/- was paid to the complainant. In the complaint, the complainant admits for having received Rs.1,03,422/- from the Opposite Party, but has failed to disclose the date on which he received that amount. However, according to the Opposite Party, the claim disbursement voucher was executed on 16.11.2007 and thereupon the sum of Rs.1,03,422/- was paid to the complainant after he executed the full and final settlement voucher. In that event after receiving payment of Rs.1,03,422/- on 16.11.2007, the complainant has filed the present complaint on 23.01.2009 more than one year after the payment made by the insurance company. Though the complainant claims that he received the payment of Rs.1,03,422/- under protest, no document is produced in that regard. It appears on receipt of the said amount on 16.11.2007, the complainant did not even write a letter to the Opposite Party stating that he received the amount under protest. He claims that the Opposite Party had promised to pay the balance amount within 10 days. But this contention is denied by the Opposite Party. The complainant has not disputed the correctness of the report submitted by the surveyor. In that event, the complainant cannot claim anything more than what is assessed by the surveyor towards damage to the vehicle. The Opposite Party has produced the copy of the terms and conditions in respect of the goods carrying public carriers package policy. Clause – 21 with regard to special exclusions and compulsory deductible in the terms and conditions, it is stated that except in the case of total loss of the vehicle insured, the insurer shall not be liable under Section I of the policy for loss of or damage to lamps, tyres, tubes, mudguards, bonnet side parts, bumpers and paint work. If that is so, in the assessment made by the surveyor, the Opposite Party is entitled to deduct the amount payable towards rubber parts and painting. Thus, deducting the amount payable towards those work, the Opposite Party has made payment of Rs.1,03,422/-. The payment so made being in accordance with the terms and conditions of the policy and based on the report submitted by surveyor, we do not see any substance in the contention of the complainant that he is still entitle to claim Rs.1,13,455/- towards reimbursement of repair charges. Thus, we hold that the amount paid by the Opposite Party is based on the report of the surveyor and as per the terms and conditions of the policy and therefore the complainant is not entitled to claim anything more than what has been already paid. In the result, we pass the following:-
    -:ORDER:-
    • The complaint is DISMISSED. There is no order as to costs.
  • adminadmin Administrator
    edited September 2009
    Sri. Nikesh Kundar,
    S/o. Narendra Suvarna,
    Aged about 23 years,
    R/A. Sonal Nivas,
    Sandspit Bengre,
    Mangalore. …….. COMPLAINANT

    (Advocate: Smt. Manjula N.A.)

    VERSUS

    United India Insurance Company Ltd.,
    Varanasi Towers, Mission Street,
    Bunder, Mangalore,
    Rep. by its Branch Manager. ……. OPPOSITE PARTY

    (Advocate: Sri. G.B. Prabhu).


    ***************

    ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;

    1. The facts of the complaint in brief are as follows:
    This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
    The Complainant is the absolute and registered owner of a Mechanized Fishing Boat “MFB Ramanjaneya II”. The aforesaid boat was insured with the Opposite Party as per the terms and conditions of the policy bearing No.70802/22/06/01/000012 valid from 26.9.2006 to 25.9.2007 for a sum of Rs.2,80,000/-.
    The allegation of the Complainant is that, on the intervening night of 17.5.2007 and 18.5.2007 at about 12.30 hours the Complainant’s boat started its journey for fishing from Sandspit Bengre through Mangalore sea bar, when they were so proceeding all of a sudden the engine of the said boat broke down and on account of the strong wind waves and water current the boat drifted towards the stone boulders existing all along the northern side of the Mangalore sea bar. As a result of heavy friction, the hull, cabin and engine of the Complainant’s boat caused extensive damage and the water gushed in and the boat started sinking in the sea bar. On the help of the another boat, they could rescue the crew members of the Complainant’s boat and towed the damaged vessel to Sandspit Bengre, where it hauled up for repair. That the repairer estimated the cost of Rs.3,85,000/- to make the boat seaworthy.
    It is submitted that, the cost of repair since exceeds the value of the boat at the time of the accident it amounts to constructive total loss and the Opposite Party are liable to pay the insured sum to the Complainant and the Complainant lodged a claim but the Opposite Party sent a letter dated 29.1.2008 to the Complainant stating that the loss suffered by the Complainant is a partial loss and not covered under the aforesaid policy and the claim of the Complainant is not entertained. It is submitted that, the act of the Opposite Party amounts to deficiency in service and hence the above complaint is filed before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from the Forum to the Opposite Party to pay Rs.2,80,000/- along with interest at 18% p.a. from 17.5.2007 to 17.4.2008 and further Rs.50,750/- claimed as compensation and cost of the proceedings.

    2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version admitted the policy and submitted that the premium was collected for the policy and the risk covered was for “total loss only” but the boat met with an accident is not suffered under total loss. The Opposite Party entrusted the survey work to one Sri.K.Prabhakar, Engineer, Valuer and Surveyor, he inspected the damaged boat on 18.5.2007 and called for certain information and documents from the Complainant and filed the survey report on 28.11.2007 and he had held that the total cost of recovery/repairs is Rs.2,32,193.73 and considered as partial loss. Hence the claim of the Complainant was repudiated and submitted that there is no deficiency whatsoever as alleged by the Complainant and further submitted that, the repair charges submitted by the Complainant is excessive and not correct and hence it is prayed for dismissal of the complaint.

    3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
    (i)[FONT=&quot] [/FONT]Whether the Complainant proves that the Opposite Party has committed deficiency in service?

    (ii)[FONT=&quot] [/FONT]If so, whether the Complainant is entitled for the reliefs claimed?






    (iii)[FONT=&quot] [/FONT]What order?

    4. In support of the complaint, Sri.Nikesh Kundar (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C7 were marked for the Complainant as listed in the annexure. One Sri.O.N.Ramachandran (RW1) – Branch Manager of the Opposite Party Company filed counter affidavit and answered the interrogatories served on him. One Sri.K.Prabhakar (RW2), Surveyor and Loss Assessor filed counter affidavit and answered the interrogatories served on him. Ex R1 to R12 were marked for the Opposite Party as listed in the annexure. The Opposite Party produced notes of arguments.
    We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.
    Point No.(ii) & (iii): As per the final order.
    Reasons


    5. Point No. (i) to (iii):
    In the instant case, it is admitted that, the fishing boat MFB Ramanjaneya II was insured with the Opposite Party for a sum of Rs.2,80,000/- under Hull and Machinery policy and the said policy was valid for a period from 27.9.2006 to 26.9.2007. The risk covered was for total loss only.
    Now the case of the Complainant is that, there was a mishap on the intervening night of 17th and 18th May 2007 night at about 12.30 hours, the engine of the boat broke down and on account of the strong wind waves and water current the boat drifted towards the stone boulders existing on the northern sea bar, friction took place and it damaged the boat. According to the Complainant, the cost of making its seaworthy is Rs.3,85,000/- and hence it should be treated as ‘constructive total loss’ and claimed the insured amount. But in the instant case, the Opposite Party has repudiated the claim treating the loss as partial loss basing on the valuer and surveyor’s report dated 28.11.2007 (as per Ex R9).
    It is a definite case of the Complainant is that, the damage caused to the boat is a constructive total loss but the Opposite Party contended that there was no mishap as stated by the Complainant and it is not a constructive total loss it is a partial loss.
    Now the point for consideration is that, whether there was any mishap as alleged by the Complainant and whether the cost of the repair to make it seaworthy is far in excess of the cost of the boat.
    The Complainant filed a affidavit and also produced Ex C1 to C7 and the Opposite Party produced Ex R1 to R12. In the present case, it is undisputed fact that, the above mishap was caused on the intervening night of 17th and 18th May 2007 night at about 12.30 hours. The contention of the Complainant is that, the engine of the vessel ceased to function while proceeding near river mouth and therefore the vessel drifted towards southern breakwater wall due to low tide water current and eastern wind. As no vessel was available for their help the vessel continued to drift and collided with the southern breakwater wall, due to this the bottom part of the vessel was broken and hence the boat sunk on the spot and later with the help of “Swathi Shree” tindel were able to tow the vessel to Bengre Sandspit. The Opposite Party by relying on the survey report seriously contended that on the date and time the vessel could not have been towed to the spot where it was alleged to have found after the mishap as it was low tide condition. The depth of the water showed that it could not have been towed to that spot. The only conclusion the surveyor found that the vessel could not be towed to the spot as the same was drifted and capsized on the spot during low tide while it was anchored. And further contended that, several opportunities were given to the Complainant to establish his case that the damage is caused when it was drifted. And further contended that the Complainant did not haul–up/salvage the vessel for a long time, later when it was hauled up to the shore certain damages were found which were sustained during hauling operation. And contended that Rs.16,000/- towards towing charges which was found to be false and there was no towing with evidence and Rs.15,000/- towards hauling up charges found to be on higher side and contended that the cost of the repair and considering the market price surveyor allowed the claim at Rs.1,89,700/- and total amount required for making it seaworthy was estimated at Rs.2,32,193/- and not Rs.3,42,493/- as claimed by the Complainant and the risk covered by the Complainant is a total loss, since it is a partial loss he is not entitled.
    The survey report is the very important piece of evidence available before the FORA. On careful scrutiny of the surveyor report dated 28.11.2007, it reveals that K.Prabhakhar valuer and surveyor visited the spot on 18.5.2007 in order to carry out the survey. It is admittedly the alleged mishap took place on intervening night of 17th and 18th May 2007 night at about 12.30 hours.
    It is stated in the report that, during his inspection the vessel was lying in Gurupur River near the river bank at Sandspit, Bengre Mangalore in submerged condition. That means, at the time of inspection of the vessel, the vessel was lying at Sandspit. The mishap took place at midnight. It is admitted in the survey report that the vessel was hauled up on shore on 21st may 2007 and surveyor inspected the vessel and noted the damages are as follows:
    1)[FONT=&quot] [/FONT]The plywood panels of wheel cabin were detached/washed away.
    2)[FONT=&quot] [/FONT]The covering board portside and starboard side were detached.
    3)[FONT=&quot] [/FONT]The joints of the 20 vertical frames on portside were loosened.
    4)[FONT=&quot] [/FONT]3 rung hull planks were broken/cracked.
    5)[FONT=&quot] [/FONT]The fender on port side were broken.
    6)[FONT=&quot] [/FONT]The shear line stringers of port side were broken.
    7)[FONT=&quot] [/FONT]The deck planks were detached and lost.
    8)[FONT=&quot] [/FONT]The planks of the engine house detached and lost.
    9)[FONT=&quot] [/FONT]The machinery was affected by water.
    10)[FONT=&quot] [/FONT]The deck beams were cracked.
    11)[FONT=&quot] [/FONT]The deck shelf was broken.
    12)[FONT=&quot] [/FONT]Two holes were found at bottom part of the hull.


    The above damages are noted by the surveyor is very important to consider in the instant case because we have compared the survey report as well as photographs taken by the surveyor and the repair bill issued by one Mr.Basker Mestri, boat carpenter workers Mangalore. On careful comparison of the damages caused to the vessel the surveyor clearly stated that plywood panels of wheel cabin were detached/washed away, the covering board portside and starboard side were detached, the joints of the 20 vertical frames on portside were loosened, 3 rung hull planks were broken/cracked etc. etc. but the carpenter charged for 130 cft. Wood, nail - 120 kg., carpenter charge and fiber charge in total he has charged Rs.2,79,000/-. But the surveyor while considering the above cost of the repair commented that the reasonable cost of repair wild jack wood 65 cft at Rs.750/- and hard wood 65 cft at Rs.550/- that means the surveyor admitted the requirement of the 130 cft wood but while considering the price he has quoted the price at Rs.750 for 1 cft., for wild jack and Rs.550/- for hard wood. It is pertinent to note that there is no material evidence available in the report whether he has compared/cross-checked the bill amount. And further the carpentry labour charges and copper fasteners 60 kgs., and FRP charge considered Rs.30,000/- by the Surveyor without any reasonable explanation. The Surveyor ought to have cross checked the labour charges and other bill amount and given a finding then definitely it would have been appreciated. But in the instant case, the surveyor simply quoted the price without comparing/cross checking the bills. Hence we are not satisfied with the comments passed by the surveyor in the present case and at the same time we do not find any discrepancies in the cost of repair issued by the boat carpenter dated 29.5.2007 i.e., Ex R6 submitted by the Complainant before the Opposite Party Company. The total cost of repair comes to Rs.2,79,000/- and further the hauling up charges the Complainant issued a bill for Rs.15,000/- but the surveyor considered only Rs.10,000/- without there being any reasonable explanation. In the absence of the same, the same cannot be accepted. And rest of the cash memo for Rs.26,493.75 towards the cost of engine parts and Rs.6,000/- towards the labour charges for resetting the engine recommended by the surveyor appears to be acceptable and the one more charge Rs.16,000/- towards towing charges was not allowed by the surveyor by stating that the depth of the water while it was towed and left on the spot and the depth of the water during inspection on 20th May 2007 are almost same and he has considered that the depth of the water is reasonable that it is not possible to tow the vessel to that spot on the reported date and time and it is opined by him that the vessel was not towed to the spot. And further he has stated that the insured was informed that the damages were occurred during salvage operation and it is reported by the tindel that the vessel drifted due to eastern wind and he has requested the insured to submit the weather report and the insured failed to comply the same and the surveyor further noted in his report that if the eastern wind was blowing and river was in low-tide condition. The vessel should have drifted towards west bar sea and not towards southern breakwater wall. By considering the above facts, the surveyor has opined that the vessel was not met with any mishap and towing charges not allowed. And he has concluded that the vessel drifted due to strong water current and capsized on touching the river bank, the cause of drifting could also be attributed to displacement of anchor due to movement other vessel in vicinity and submitted the report that there was no adverse information and evidence was available to say that the mishap of vessel was caused due to uninsured peril. From the above observation it is made by the surveyor in his report in many paras it is made us very clear that, the surveyor is not certain because in one breath he states that the vessel drifted due to strong water current and capsized on touching the river bank and another breath he attributes that it could be displacement of an anchor during the movement other vessel in vicinity. And further he states that the vessel drifted due to eastern wind reported by the tindel and further he stated that the vessel should have drifted towards west Bar Sea and not towards south breakwater wall. The surveyor should always stick upon to one definite finding/opinion and not keep on giving one after another opinion according to his imagination. Hence we are not satisfied with the opinion expressed by the Surveyor without being any statement by the insured or the tindel or the local inhabitants.
    In the present case, it is proved that the vessel was encountered heavy weather drifted into strong monsoon weather and as a heavy friction the boat suffered extensive damage and the water gushed in and the boat started sinking in the sea bar and with the help of the other boat they could rescue the crew members and towed the damaged vessel to sandspit and where it hauled up for repair. But as per the survey report there was no mishap as discussed supra but no cogent evidence/materials placed before the FORA in order to support the opinion of the surveyor. No doubt the surveyor report is an important piece of document but the various points/opinions raised in the analysis report filed by the surveyor is not beyond reasonable doubt. The surveyor arrived at the conclusion on the imaginary/circumstantial evidences but while scrutinizing his report and the photographs produced by the surveyor also clearly established that the boat was extensively damaged and the opinion given by the surveyor is not supported by any material evidence and the mishap took place at midnight of the intervening night of 17th and 18th May 2007 night and the surveyor inspected the vessel on 18th and 20th after towing the vessel to the sandspit and no statement of the tindel or any crew members were taken. The surveyor ought to have taken the statement of the tindel/insured/crew members or any local inhabitants of the locality. In the absence of any evidence, it cannot be considered that there was no mishap taken place on the date, time stated by the Complainant. And the reason given by the surveyor is not satisfactory and the surveyor ought to have considered the reasonable towing charges alteast Rs.10,000/- instead of Rs.16,000/- but in the present case the surveyor not considered the above said amount which is not justifiable.
    In view of the above discussion, we are of the considered opinion that the surveyor report suffers from latches and failed to justify with reasonable explanations. Hence by considering all the facts and circumstances and the available documents, we are of the opinion that the Complainant’s boat suffered damages of constructive total loss and not a partial loss. The policy issued by the Opposite Party Company is very clear that the claim can be entertained only if it is a total loss and the risk is covered for total loss only. The repudiation on the part of the Opposite Party is not justified which amounts to deficiency in service. Hence the Opposite Party Company is hereby directed to pay the entire insured amount to the Complainant along with interest at the rate of 8% p.a. from the date of repudiation till the date of payment. However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation. And further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

    6. In the result, we pass the following:
    ORDER

    The complaint is allowed. Opposite Party i.e., United India Insurance Company Limited is hereby directed to pay the entire insured amount to the Complainant along with interest at the rate of 8% p.a. from the date of repudiation till the date of payment. And further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
  • adminadmin Administrator
    edited September 2009
    Sri.B.Padmanabha,
    S/o. Aithappa Poojary,
    Aged about 50 years,
    R/A. Babbukatte House,
    Post Permannur,
    Kutthappadav,
    Mangalore – 575 017. …….. COMPLAINANT

    (Advocate: Sri.Raghuveer Bhandary M.)

    VERSUS

    United India Insurance Co. Ltd.,
    Branch III, Balmatta,
    Mangalore – 575 001,
    Rep. by its Branch Manager. ……. OPPOSITE PARTY

    (Advocate: Sri.G.Balakrishna Prabhu).


    ***************

    ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;

    1. The facts of the complaint in brief are as follows:
    This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
    It is submitted that the Complainant is running a juice center in Mangalore Taluk and obtained Standard Fire and Special Perils Policy under the Opposite Party in policy No.070803/11/05/1038 for his furniture, fixture and mixers situated in his shop premises for a sum of Rs.52,000/-. The said policy valid from 2.3.2006 till 1.3.2007.
    It is submitted that on 6.10.2006 at about 1.45 p.m., there was a communal riot and some persons have entered the juice shop of the Complainant and damaged the furniture, fixtures and other machineries situated in the shop of the Complainant and had suffered a loss to the tune of Rs.80,000/-. Immediately the Complainant lodged a police complaint. FIR and mahazar was drawn and thereafter on 14.10.2006 submitted the claim form with all necessary particulars to the Opposite Party. It is alleged that, the Opposite Party even after lapse of 2 months not responded and thereafter approached the Opposite Party several times and finally on 25.6.2007 repudiated the claim of the Complainant stating that the minimum deductible excess stipulated in the policy is Rs.10,000/- since the assessed amount Rs.4,725/- falls within the excess amount stipulated in the policy they are unable to entertain the claim and it is contended that the repudiation made by the Opposite Party is arbitrary and not justified and filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay a sum of Rs.52,000/- towards the claim along with interest at 12% p.a. from 6.10.2006 till date and further Rs.30,000/- claimed as compensation and cost of the proceedings.

    2. Version notice served to the Opposite Party by RPAD.
    Opposite Party appeared through their counsel filed version admitted the policy and submitted that as per the policy condition the minimum deductible stipulated in the policy was Rs.10,000/- and the surveyor assessed the amount by way of loss at Rs.4,725/- and as this fell within the excess amount stipulated in the policy the claim was not entertained and submitted that there is no deficiency in service and prayed for dismissal of the complaint.
    3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

    (i)[FONT=&quot] [/FONT]Whether the Complainant proves that the Opposite Party has committed deficiency in service?

    (ii)[FONT=&quot] [/FONT]If so, whether the Complainant is entitled for the reliefs claimed?






    (iii)[FONT=&quot] [/FONT]What order?

    4. In support of the complaint, Sri.B.Padmanabha (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C6 were marked for the Complainant as listed in the annexure. One Sri.H.Damodara Bangera (RW1), Branch Manager of the Opposite Party and one Sri.U.Vasudeva Prabhu (RW2) – Surveyor and Loss Assessor of the Opposite Party filed counter affidavits and answered the interrogatories served on him. Ex R1 to R6were marked for the Opposite Party as listed in the annexure. The Complainant produced notes of arguments along with citations.
    We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.
    Point No.(ii) & (iii): As per the final order.
    Reasons

    5. Point No. (i) to (iii):
    It is undisputed fact that the Complainant obtained a Standard Fire and Special Perils Policy from the Opposite Party Company for a sum of Rs.52,000/-. The policy was in force from 2.3.2006 to 1.3.2007 (as per Ex C1). It is further undisputed fact that on 6.10.2006 at about 1.45 p.m., there was a communal riot in the locality where the Complainant’s juice center was situated and the shop of the Complainant was damaged. The FIR (as per Ex C3) and Mahazar (as per Ex C4) was drawn.
    It is submitted that, on 4.10.2006 the claim application was submitted before the Opposite Party and the Opposite Party repudiated the claim stating that the minimum deductible excess stipulated in the policy is Rs.10,000/-, since the assessed amount of Rs.4,725/- which falls within the excess amount stipulated in the policy and they are unable to entertain the claim.
    Undisputedly, the Complainant’s juice centre was insured under the Standard Fire and Special Perils Policy for a sum of Rs.52,000/- as stated supra. However, due to the above accident the Complainant’s shop premises was damaged and the Opposite Party repudiated the claim stating the above reasons. The Complainant did not feel satisfied with the reason stated by the Opposite Party hence he came up with this complaint.
    The learned counsels for the parties were heard and the records available before the FORA were perused. The Opposite Party counsel strenuously urged that the Surveyor appointed by the Company submitted the report and the extent of loss assessed by the Surveyor was of Rs.4,725/- and contended that the Complainant had repaired the mixer and the repair charges was assessed at Rs.425/- only. The damaged portion of broken 6 mm glasses of the ‘L’ type counter which is also the front showcase of M.S. Powder coated Angles was assessed for loss and contended that the Complainant made the same claim twice as “L” type counter and as front showcase etc. etc. and contended that the loss was assessed at Rs.4,725/-. As per the policy condition, the minimum deductible stipulated in the policy was Rs.10,000/- and the assessed amount by way of loss was at Rs.4,725/- and as this fell within the excess amount stipulated in the policy and the claim was not entertained.
    The learned counsel for the Complainant however submitted that the shop of the Complainant was extensively damaged as would be clear from the report of the Surveyor itself. It was further submitted that the Complainant had suffered a loss to the tune of Rs.80,000/- out of which Rs.20,000/- towards stock of loss, Rs.60,000/- towards furniture and building damaged. And further submitted that the Opposite Party not considered the FIR and the spot mahazar, wherein it is specifically stated that the furnitures were completely destroyed and the weighing machine also damaged but while considering the survey, the Surveyor not taken into consideration with regard to the damage of the weighing machine and the Surveyor’s valuation is not correct and it was also submitted that the repudiation arrived by the Opposite Party is not justifiable.
    We find that the Ex C1 is the claim form, wherein it has stated that Rs.20,000/- towards the stock loss and Rs.60,000/- towards the furniture and building damaged/loss. The Fire Insurance Policy i.e., Ex C5, wherein it shows that the stock was not covered under the policy. Hence the claim of the stock cannot be considered in this case.
    As far as loss towards the furniture and building is concerned, we have perused the survey report, FIR and the mahazar drawn by the Station House Officer, Ullal Police Station, Mangalore. On careful scrutiny of the above documents, it is clear that the showcase, electronic scale and food items and furniture, fixture and mixer and also the building damaged.
    It is pertinent to note that, the electronic scale is concerned, the Surveyor (as per Ex R3) noted the damages of the electronic weighing scale in page No.3 of his report but the same is not considered while assessing the loss.
    As far as the labour charges are concerned, the Complainant claimed Rs.1,200/- for replacing the damaged wooden rafters and reapers but the Opposite Party considered only Rs.600/- which also not justifiable. Further the loss towards furniture, fixtures and mixer, wherein the front showcase of M.S. Powder Coated Angles with 6 mm glasses considered the loss as Rs.2,500/- as against Rs.17,920/- and ‘L’ type counter of M.S. Powder Coated Angles with 6 mm glasses considered loss as Rs.3,500/- as against Rs.12,880/-. It is pertinent to note that the Surveyor not explained the reason properly whether the frames of the showcase and ‘L’ type counter was proper or not. Hence even the said loss assessed by the Surveyor is also not satisfactory. By considering the overall calculations arrived by the Surveyor, we are of the considered opinion that the survey report not last word for determination of actual loss. As is clear from the materials placed on record, the loss suffered by the Complainant is appears to be genuine and entitled to feel reimbursement not withstanding the Surveyors report of estimated loss of lesser amount. It is true that normally the estimate of the Surveyor regarding loss to be given due consideration but it cannot be said to be the last word for determination of actual loss as stated supra. As discussed herein above in the instant case, the some of the items mentioned in the survey report, mahazar was completely damaged, the same has to be reimbursed by the Opposite Party in the interest of justice. The Surveyor while considering the damages to the furniture, fixture and mixer considered Rs.4,725/- as against Rs.44,518.50 and while considering the damages to the building considered Rs.1,927/- as against Rs.3,611/- and depreciation considered on the above said amount at 26% on building and 30% for the furniture. As far as the calculation of the surveyor is concerned, undisputedly the building, furniture, fixture, mixer and other food items were damaged. As is clear from the material placed on record the Complainant had to incur Rs.44,518.50 and the same was paid by him and the bill was produced. On perusing the bills there is no justifiable reasons to discard the amount claimed by the Complainant and also there is no reason to doubt the payment made by the Complainant. The loss assessment valuation made by the surveyor appears to be purely hypothetical, imaginative and on assumptions and presumptions. While disallowing the amount claimed by the Complainant, the surveyor should give a satisfactory/reasonable explanations why it cannot be considered. But there is no explanations forthcoming.
    In view of the above, we consider the Complainant is entitled to get reimbursement of actual expenditure incurred by him towards the repairs of the damaged items. By considering the actual expenses, we direct the Opposite Party to pay Rs.48,129.50 less depreciation Rs.3,109/- it comes to Rs.45,020.50 along with interest at 8% p.a. from the date of repudiation till the date of payment. And further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

    6. In the result, we pass the following:

    ORDER

    The complaint is allowed. Opposite Party i.e., United India Insurance Co. Limited is hereby directed to pay to the Complainant Rs.45,020.50 along with interest at the rate of 8% p.a. from the date of repudiation till the date of payment. And further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
  • adminadmin Administrator
    edited September 2009
    [FONT=&quot]B.A.Balakrishna Rai,[/FONT]
    [FONT=&quot]Aged 60 years,[/FONT]
    [FONT=&quot]S/o. late Aithappa Rai,[/FONT]
    [FONT=&quot]Basaveshwara Estate,[/FONT]
    [FONT=&quot]Kedakallu Post,[/FONT]
    [FONT=&quot]Somwarpet Taluk,[/FONT]
    [FONT=&quot]Kodagu District.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]OPPOSITE PARTY:[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1. United India Insurance Co., Ltd.,[/FONT]
    [FONT=&quot] 24,White Road,[/FONT]
    [FONT=&quot] Chennai-600014. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2. United India Insurance Co., Ltd.,[/FONT]
    [FONT=&quot] Rep: by its Senior Manager,[/FONT]
    [FONT=&quot] College Road,[/FONT]
    [FONT=&quot] Madikeri.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    O R D E R


    [FONT=&quot]M.R. DEVAPPA, PRESIDENT[/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Briefly stated the case of the complainant is as follows;[/FONT]
    [FONT=&quot] [/FONT]
    1.[FONT=&quot] [/FONT][FONT=&quot]That the complainant has purchased the insurance policy under Individual Health Insurance Scheme and insured Rs.50,000/- and the same is being renewed which is valid up to 26-11-2008. The complainant has to under go open heart by pass surgery and got himself admitted in malya hospital, Bangalore and under went surgery on 8-5-2008 and discharged on 17-5-2008.[/FONT]

    2.[FONT=&quot] [/FONT][FONT=&quot]That the complainant incurred expenditure to the extent of Rs.1,52,000/- in Malya hospital and another Rs.13,000/- outside the hospital and requested the OP no.2 by his letter dated 10-6-2008 to reimburse aforesaid expenditure by furnishing all the details and the bills. Since OP no.2 did not respond, he wrote a letter dated 16-8-2008 to the Managing Director of TTK Health Care at Bangalore. As there was no immidiate response from them he wrote another letter to OP2 but there was no response from OP2 which compelled the complainant to write another letter dt. on 15-9-2008.[/FONT]


    3.[FONT=&quot] [/FONT][FONT=&quot]As there was no proper response, OP1 and OP2 , got legal notice issued calling upon OP1 and 2 to reimburse the expenditure and to pay 20% interest thereon and to pay Rs.50,000/- as compensation. Despite it the OP1 & 2 have failed to settle the claim of the complainant the same amounts to deficiency of service and approached the Forum seeking reliefs mentioned in the complaint.[/FONT]

    4.[FONT=&quot] [/FONT][FONT=&quot]The complainant has filed the following list of documents.[/FONT]
    [FONT=&quot]1.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Receipt dt.20-11-2007[/FONT]
    2.[FONT=&quot] [/FONT][FONT=&quot]Office Copy of letter dt.10-6-2008.[/FONT]
    3.[FONT=&quot] [/FONT][FONT=&quot]Office Copy of letter dt.16-8-2008.[/FONT]
    4.[FONT=&quot] [/FONT][FONT=&quot]Office Copy of letter dt.02-9-2008.[/FONT]
    5.[FONT=&quot] [/FONT][FONT=&quot]Office Copy of letter dt.15-9-2008.[/FONT]
    6.[FONT=&quot] [/FONT][FONT=&quot]Postal receipts for RLA No.9481,9482, and 9483 from the post office.(3 numbers)[/FONT]
    7.[FONT=&quot] [/FONT][FONT=&quot]Office Copy of notice dt.26-12-2008.[/FONT]
    8.[FONT=&quot] [/FONT][FONT=&quot]Postal acknowledgement for No.2980, dt.26-12-2008.[/FONT]
    9.[FONT=&quot] [/FONT][FONT=&quot]Reply notice dt.21-1-2009 from shri P.T.Ganapathy, advocate, Madikeri.[/FONT]
    [FONT=&quot]Upon admitting the complaint notice was sent to OP no.1 & 2 and on receipt of the notice Ops have engaged the advocate and on filing the version and the affidavit they have taken the following defence.[/FONT]
    [FONT=&quot]1.[FONT=&quot] [/FONT][/FONT][FONT=&quot]That it is true that the OP issued Health Insurance Policy the sum insured being Rs.50,000/- as such the liablility of the OP is only to the extent of Rs.50,000/- subject to the terms, conditions & limitation of the policy.[/FONT]
    2.[FONT=&quot] [/FONT][FONT=&quot]That the OP is always ready and willing to settle the claim at the earliest provided the OP furnishes all the required documents as required by Medsave Health Care (TPA) Ltd.[/FONT]
    3.[FONT=&quot] [/FONT][FONT=&quot]The third party administator has sort some clarification and the complainant had asked to furnish some more documents regarding treatment extended to him. Since the required information was not furnished the OP could not settle the claim and hence no deficiency of service is committed by them and the claim of the complainant is also not repudiated as such there is no cause of action. Consequently, the complaint is liable to be dismissed.[/FONT]

    [FONT=&quot]5.[FONT=&quot] [/FONT][/FONT][FONT=&quot]The OP has filed the following documents:[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1.Insurance Policy covering the period 27-11-2007 dt.26-11-2008.[/FONT]
    [FONT=&quot]2. Letter dated 24-12-2008 addressed to the complainant from Medsave Healthcare (TPA) Ltd.,[/FONT]
    [FONT=&quot]3.Letter from Medsave Healthcare (TPA) Ltd., dt.10-1-2009 addressed to the complainant.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]6.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Both the parties have filed their affidavit evidence in lieu of examination in chief. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]7.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Having regard to the averments made in the complaint & the defence taken by the Ops , the following issues arise for determination:[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Whether, in not settling the claim of the complainant the Ops have committed deficiency in service.[/FONT]
    [FONT=&quot]2.[FONT=&quot] [/FONT][/FONT][FONT=&quot]To what order?[/FONT]
    [FONT=&quot] [/FONT]
    REASONS
    [FONT=&quot] [/FONT]
    [FONT=&quot]8.[FONT=&quot] [/FONT][/FONT][FONT=&quot]The purchase of insurance policy and the validity of the same is not in dispute and further the liability of the Ops to the extent of Rs.50,000/- is also not disputed. But the defence of the Ops is that they are not liable to reimburse the entire expenditure incurred by the complainant.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]9.[FONT=&quot] [/FONT][/FONT][FONT=&quot]The Ops have contended that for want of some document like the actual treatment extended and the actual disease suffered and other details of admission and discharge of the complainant from the hospital, was not furnished to the third party administrator and hence the claim could not be settled.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]10.[FONT=&quot] [/FONT][/FONT][FONT=&quot]It is argued by the counsel for the complainant that the complainant has sent the claim petition on 10-6-2008 requesting the Ops to reimburse the expenditure as reflected in the previous paragraphs. But despite complainant writing letters on 16-8-2008, 2-9-2008 & on 15-9-2008 and a legal notice issued on 26-12-2008 the Ops did not respond to those letters and failed to settle the claim till the date on which the complaint is filed i.e 2-2-2009 and therefore, the act and conduct of Ops amounts to deficiency in service and further argued that available documents were sufficient to settle the claim & the Ops have deliberately dragged on the matter.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]11.[FONT=&quot] [/FONT][/FONT][FONT=&quot]As against the above submission the advocate for OP vehimentally argued that the claim of the complainant could not be settled for want of documents and the Ops have not repudiated the claim but are willing to settle the same only to the extent of Rs.50,000/- and not beyond that.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]12.[FONT=&quot] [/FONT][/FONT][FONT=&quot]It is relevant to mention that the complainant has placed the discharge certificate and other related documents before the Forum after due notice to the advocate for Ops. As such there are no difficulties to settle the claim of the complainant only to the extent of Rs.50,000/-. We have perused and verified the insurance policy and the amount insured is only Rs.50,000/- as such the liability is restricted to Rs.50,000/- only.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]13.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Regarding the bonus, the complainant is at liberty to correspond with the Ops because for the first time such matter is agitated before the Forum.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]14.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Since the claim of the complainant is not settled for the past about 6 months and we are of the considered opinion that with the available materials the claim of the complainant could have been settled by the Ops. It can be said that Ops have committed deficiency in service keeping the complainant under anxiety.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]15.[FONT=&quot] [/FONT][/FONT][FONT=&quot]In view of the above discussions we answer point no.1 affirmatively holding that the Ops have committed deficiency in service and proceed to pass the following order.[/FONT]
    [FONT=&quot] [/FONT]
    ORDER

    [FONT=&quot] [/FONT]
    [FONT=&quot] The complaint is partly allowed and the Ops are hereby directed to settle the claim only to the extent of Rs.50,000/- and at 10% interest thereon from the date of complaint i.e 2-2-2009 till the date of realization of the said amount. And further the OP no.1 & OP 2 are directed to pay Rs.1,000/- towards the cost of this proceedings to the complainant.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] The above order shall be complied within sixty days from the date of receipt of this order by the opposite parties.[/FONT]
  • SidhantSidhant Moderator
    edited September 2009
    Shri Bhagwan Dass Chauhan



    … Complainant.

    Versus



    The United India Insurance Company Ltd.



    …Opposite Party.


    O R D E R:

    Arguments partly heard. At this stage the learned counsel for the OP-Company submitted before us that as per the contents of the FIR Annexure R-4 four persons were sitting in the vehicle bearing registration No.HP-09A-0897 at the time of the accident and one of them died. That the OP-Company made several reference to the complainant to explain the capacity of the persons who were travelling in the vehicle at the time of the accident but the complainant did not supply the requisite information to them. Therefore, the OP-Company was left with no option except to treat the claim of the complainant as no claim and intimation to this effect was also sent vide letter Annexure R-2.



    2. Therefore, from the averments of OP-Company it is manifest and clear that when the complainant did not furnish the required information regarding the capacity of four persons who were travelling in the vehicle at the time of the accident, his insurance claim was not processed further and it was treated as no claim. As such, it appears that it is a premature complaint.




    3. Accordingly, it is deemed expedient in the interest of justice to direct the complainant to furnish the required intimation to OP-Company regarding the capacity of four persons who were occupants of the vehicle in question at the time of the accident. As such, the complaint is disposed of and it is ordered that the complainant shall furnish the aforesaid information to the OP-Company within thirty days from today and thereafter, the OP-Company shall process the insurance claim of the complainant expeditiously and will intimate its final out come to the complainant within 60 days thereafter. It is ordered accordingly.
  • SidhantSidhant Moderator
    edited September 2009
    Bhumireddy Sarada, W/o Samba Siva Reddy,
    aged 48 years, Hindu, Vehicle owner,
    C/o Sudhakar Agencies, Vasthu Complex,
    Mydukur Road, Proddatur town and Mandal,
    Kadapa District. ….. Complainant.

    Vs.

    United India Insurance Co. Ltd., Rep. by its
    Branch Manager, 22/444, B.S. complex,
    Proddatur Town and Mandal, Kadapa District. ….. Respondent.

    O R D E R

    (Per Sri S. Abdul Khader Basha, Member),

    1. Complaint filed under section 12 of the Consumer Protection Act 1986.

    2. The brief facts of the complaint are as follows:- The complainant is the owner of Tata Qualis bearing No. AP 04 V : 0189. The complainant had taken vehicle insurance policy from the respondent company bearing No. 050901/31/6/01/00000559 and the policy is in force from 21-9-2006 to 20-9-2007. The said vehicle was met with an accident on 18-6-2007 and the vehicle was also damaged. The complainant informed the respondent and as per instructions of the respondent the complainant handed over the damaged vehicle for repairs to the authorized service station “Harsha Toyota”, at Hyderabad. The service station prepared and sent estimation for the repair of the vehicle even to the respondent. The service station repaired the vehicle and issued the bill in total for Rs. 3,91,552/-. The complainant paid the bill amount on 14-11-2007 by way of two demand drafts and cash. The complainant had filed the same to the respondent and submitted papers to the respondent and copies of the receipts issued by Harsah Toyata.

    The complainant submitted the claim to the respondent. But surprisingly the complainant received a letter from the respondent on 12-6-2008 in that the respondent stated that the claim was approved for Rs. 66,700/- to full and final settlement and also sent a form to the complainant. The complainant immediately contacted the respondent and enquired with them. The respondent’s offer is not acceptable to the complainant and the complainant informed to the respondent the total expenditure of the vehicle. The respondent is not acted upon and that the complainant issued a legal notice to the respondent on 20-7-2008 and again on 10-9-2008. The respondent replied for the 2nd notice with false allegations. The complainant had done all the formalities as required by the respondent long back. The respondent carelessness and callous attitude clearly amounts to deficiency of service, negligent attitude and unfair trade practice. The act of the respondent is within the ambit of the provisions of C.P Act. The complainant had sustained a lot of monitory loss as well as mental agony. This complainant is filed before this forum requesting to direct the respondent to pay the bills amount of Rs. 3,91,552/- with interest @ 12% p.a. from 14-11-2007, to pay Rs. 1,00,000/- towards deficiency of service and mental agony and costs to the complaint.

    3. The respondent filed a counter denying all the allegations and stated that this complaint is not maintable before this forum as the vehicle bearing No. AP 04 V : 0189 is a commercial registration which is meant for hire usage purpose, as such the complainant for her grievance if any on this issue ought to have approached the Civil court of Law and not before this forum. The present complaint is bad for non-joinder of necessary of the vehicle i.e. S.B.I. Proddatur who alone is the complainant to claim and file this complaint during the finance period and the complainant cannot be termed and defined as owner of the vehicle and on this aspect also the complaint is liable to be dismissed.

    The allegation of the complainant that there is deficiency of service on the part of the respondent is not settling the claim amounts to deficiency in service is all false and imagination of the complainant. The respondent always discharged his duty right from receiving of the intimation of the accident from the complainant. In fact the complainant was negligent in discharging her duties such as submission of relevant documents for settlement of her claim. The respondent also addressed a letter dt. 12-6-2008 to the complainant that her claim was settled for Rs. 66,770/- towards full and final settlement and to submit the discharge voucher duly signed by the complainant for issuance of the cheque in favour of the financier bank and in case of cheque to be issued in her favour, to obtain no objection letter from the Bank. Inspite of receipt of the said letter the complainant failed to submit the discharge voucher, as such there is deficiency of service on the part of the complainant. The respondent under compelled circumstances ‘closed the claim’ under due intimation to the complainant, the respondent appointed a surveyor by name G. Subba Rao, to inspect the accident vehicle and to submit the report. The said surveyor assessed the nature of damage and the liability of the respondent @ Rs. 75,000/- considering the applicable depreciation to iron and rubber parts.

    The respondent after submission of the bills by the complainant, calculated net amount payable as Rs. 66,770/-. The allegation of the complainant that she paid Rs. 3,91,552/- for getting the vehicle to road condition is her imagination which is not supported by documentary evidence, such as relevant bills issued by Harsha Toyota, Hyderabad, authorized service station. The expenditure towards the repairs estimated by the complainant is excessive without any proof and to get unlawful gain. There is no deficiency of service on the part of the respondent so as to attract the provisions of C.P. Act. There are no merits in this complaint and the respondent requested this forum to dismiss the complaint with exemplary costs.


    4. On the basis of the above pleadings the following points are settled for determination.
    i. Whether the complainant is entitled to the relief as prayed for?
    ii. Whether there is any deficiency of service on the part of the respondent?
    iii. To what relief?


    5. On behalf of the complainant Ex. A1 to A8 were marked and on behalf of the respondent Ex. B1 to B6 were marked. Oral arguments were heard from both sides.


    6. Point No. 1& 2. Ex. A1 is the Xerox copy of insurance policy. Ex. A2 is the Xerox copy of receipt issued by Harsha Toyota, Hyderabad, dt. 30-11-2007 for Rs. 3,91,552/- in favour of the complainant. Ex. A3 is the Xerox copy of demand draft for Rs. 2,50,000/-, dt. 14-11-2007 in favour of Harsha Automotive Pvt. Ltd.,. Ex. A4 is the Xerox copy of another demand draft for Rs. 50,000/- dt. 14-11-2007 in favour of Harsha Automotive Pvt. Ltd. Ex. A5 is the Xerox copy of legal notice dt. 10-9-2008. Ex. A6 is the Xerox copy of letter from the Branch Manager, United India Insurance Co. Ltd., dt. 3-10-2008 addressed to the Advocate of the complainant. Ex. A7 is the Xerox copy of another legal notice dt. 20-7-2008 addressed to the respondent. Ex. A8 is the Xerox copy of letter settlement of claim dt. 12-6-2008 addressed to the complainant by respondent. Ex. B1 is the Xerox copy of motor final survey report, dt. 5-8-2007. Ex. B2 is the Xerox copy of Ex. A8. Ex. B3 is the Xerox copy of reminder – I, dt. 8-7-2008. Ex. B4 is the Xerox copy of letter dt. 8-8-2008 of the respondent addressed to the complainant. Ex. B5 is the Xerox copy of letter of the respondent addressed to the complainant dt. 28-8-2008. Ex. B6 is the Xerox copy of calculation sheet (containing – 4).


    7. As could be seen from the documentary evidence on record there is no dispute with regards to accident of the vehicle in question and there is also no dispute with regard to repairs of the damaged vehicle of the complainant through authorized service station by name Harsha Toyota EX.A2 dt. 30-11-2007 which is issued for Rs. 3,91,552 mentioned as by cash. In fact the payment of Rs. 2,50,000/- and Rs. 50,000/- respectively by means of Demand Drafts by the complainant is not find place in the receipt. The complainant failed to convenience this forum on this aspect and there is no satisfactory explanation with regards to genuiness of the receipt Ex. A2 issued by the service station. In view of the unexplained situation by the complainant in respect of the expenditure towards the repairs, of her damaged vehicle to the tune of Rs. 3,91,552/- deserves no consideration, as such taking Ex. A3 and A4 demand drafts for Rs. 2,50,000/- and Rs. 50,000/- respectively paid by the complainant to the service station towards the expenditure of her damaged vehicle needs to be considered . The estimation of surveyor as per Ex. B1 appears to be very low when compared to the actual insurance of expenditure by the complainant towards the repairs to her damages vehicle.

    8. The respondent at any point of time has not succeeded in convincing this forum in support of his contention that the vehicle in question is meant for hire usage which is purely commercial in nature. In view of not adducing adequate evidence in support of this contention of the respondent it is not fair to consider the contention of the respondent. Similarly there is no evidence adduced by the respondent to show that the complainant is having dues to the Financier i.e. State bank of India, Proddatur Branch, as such the contention of the respondent that non-joinder of the financier is bad for the complaint as the Financer alone is the complainant during the finance period and the complainant cannot he termed and defined as owner of the said vehicle. Again the respondent failed to adduce evidence in support of its contention taking in view of this aspect the complainant is advised to obtain no objection certificate from the S.B.I., Proddatur branch and produce before the respondent so that the respondent can safely deliver the amount to the complainant.


    9. Point No. 2 In the result, the complaint is allowed, directing the respondent to pay Rs. 3,00,000/- (Rupees three lakshs only) to the complainant without interest, costs and compensation, within 60 days from the date of receipt of the order. The rest of the claim is dismissed.
  • SidhantSidhant Moderator
    edited September 2009
    Shri Joginder Malta S/O Bali Ram Malta R/O Village Ghalana, P.O. Kuthar, Tehsil Theog, District Shimla, H.P.

    Versus

    The United India Insurance Company Ltd.

    Through its Divisional Manager,

    Divisional Office, Timber House, Cart Road, Shimla-1.

    Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant by invoking the provisions of Sections 11 & 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of Maruti Van bearing registration No. HP-01A-0358, copy whereof has been attached as Annexure A-1. The complainant has further proceeded to aver that he purchased the aforesaid vehicle by obtaining loan from the HP State Financial Corporation, for, earning his livelihood and got the aforesaid vehicle insured with the OP-Company on 08.06.2005 for a period of one year w.e.f. 08.06.2005 to 07.06.2006 for a sum of Rs.1,52,000.

    It is also asserted that he paid additional premium of a sum of Rs.100/- whereby the owner and driver of the vehicle were provided additional insurance cover of a sum of Rs.2,00,000/-, copy whereof has been annexed as Annexure A-2. In June, 2003, he averred that he engaged a driver in the second half of July, 2003 to drive the aforesaid vehicle as he did not know driving and before the engagement of Shri Anand Parkash as driver, he, satisfied himself of the fact that he was competent and authorized to drive the vehicle owned by him. He also averred that Shri Anand Parkash was holding a valid and effective driving licence, which had been impounded by the police in a criminal case and a certificate had been issued by the Incharge CIA staff Shimla to the effect that he is holding a valid driving licence, copy of such certificate, is, annexed as Annexure A-3. The vehicle owned by the complainant is averred to have met with an accident on 09.08.2005, at, Ghannati when it was on its way from Dharamsala to Shimla resulting in extensive damage to the vehicle, as also, the complainant sustained injuries.

    Copy of the FIR is annexed as Annexure A-4. The complainant avers that he brought the fact of accident to the knowledge of the OP-Company who immediately appointed a surveyor, who inspected the spot and directed the complainant to retrieve and repair the vehicle after submitting estimate of repairs. Consequently, the vehicle was retrieved from the gorge where it had fallen and also the repairs were effected by M/S Goel Motors Tara Devi, Shimla and a total sum of Rs.1,21,131/- is averred to have been spent on the repair of the vehicle, as also, a sum of Rs.3500/- is averred to have been spent on retrieving of the vehicle vide Annexure A-6. The complainant has further asserted that vide letter dated 10.01.2006 Annexure A-8, it was intimated by the OP-Company that since the complainant had engaged the driver who was not having valid and effective driving licence, hence his claim cannot be considered. In response to the said letter, he informed the OP-Company explaining his position and calling upon them to make the payment of the claim amount, but of no avail and vide Annexure A-10, his claim was repudiated by the OP-Company. Hence, it is asserted that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OP-Company filed detailed reply to the complaint. In the preliminary objection it was contended that the complaint, is, not maintainable, as this Forum has no jurisdiction to entertain the present complaint. Also it was contended that the driver of the vehicle was not having a valid and effective driving licence to drive the vehicle, in as much, as, the driving licence was only valid up to 19.11.2004, hence had expired rendering him unfit to drive the vehicle on 09.08.2005. On merits, it was contended that the complainant is plying the vehicle for commercial purpose as he is serving as Manager at Hotel Flora Lakkar Bazar, Shimla. Therefore, the complainant, is, not a consumer. It was not denied that the complainant is not the owner of the vehicle, but it is denied that the complainant had purchased the above vehicle to earn his livelihood. It is denied that the driver of the vehicle was having a valid and effective driving licence at the time when the vehicle met with an accident. Since, the driver was not possessing a valid and effective driving licence, therefore, the complainant was not entitled for claiming compensation.

    It is not denied that the driving licence of driver of the vehicle owned by the complainant was to expire on 19.11.2004, yet, it is contended that no steps had been taken either by the driver or by the complainant to get the driving licence renewed. Moreover, even though, the surveyor had assessed the loss to the vehicle to the tune of Rs.94,361, yet in the light of the violation of the insurance policy, it is contended that the complainant is not entitled to the amount as expended by him on repairing the vehicle which met with the accident. It is also denied that the complainant spent Rs.3500/- on towing of the vehicle and Rs.75,000/- on treatment and Rs.1,21,131/- on repairs of the vehicle. Therefore, it is contended that the complaint be dismissed.

    3. We have heard the learned counsel for the parties at length and have also thoroughly scanned entire record of the case.

    4. The complainant relies upon various annexures illustrating the fact of the expenses incurred by him towards repair of the vehicle, as well, as towards towing of the vehicle from the gorge, to, workshop, where, it, was got repaired.

    5. The OP-Company in support of its contention in the reply has relied upon the evidence tendered by way of affidavit sworn by the authorized officer of the OP-Company. Besides, the OP-Company also relies and depends upon the affidavits of Rajinder Kumar Khajuria, Investigator appointed by the OP-Company for verifying the fact whether the driving licence of Shri Anand Parkash engaged as a driver by the complainant is valid, or not, it, having expired on 19.11.2004, whereas the accident had occurred on 09.08.2005. Since, he has reported qua its un-authenticity, hence, it is urged that at the time when the vehicle met with an accident, the driving licence of Shri Anand Pakash was, not, valid rendering, as such, him unfit to drive the vehicle.

    6. It is not in dispute between the contesting parties that one of the solemn conditions necessitating compliance by the complainant for claiming the expenses, incurred by him for repairing of the insured vehicle which met with an accident, is, of the driver who was driving, it, at the time when it met with an accident, being, competent to drive it or his competence is to be borne out by the fact of his possessing a valid and effective driving licence, when the accident occurred. Obviously, when the test of his being fit and competent to drive the vehicle is to be proved by his possessing a valid and effective driving licence at the time of the accident, then the said test has come to be not satisfied, in as much, as, the driver engaged by the complainant named Anand Parkash, in, the light of Annexure R-3, as also, in the light of the affidavit sworn by authorized functionary of OP-Company manifest the fact of his being not possessed of a valid and effective driving licence to drive, it, at the relevant time. The said evidence having remained un-rebutted, hence, it, requires conclusivness. Obviously, since the complainant in rebuttal could not prove the fact that the driver Anand Parkash was having a valid and effective driving licence, its, non-possession by him at the relevant time constituted a breach of the terms and conditions of the insurance policy. Therefore, it is open to the OP-Company to refuse to the complainant the claim as asserted against them by him. In nutshell, the denial of the claim as asserted by the complainant against the OP-Company is legally justified and cannot be termed as deficiency in service hence the complaint is liable to be dismissed.

    7. In the light of the above, the complaint is liable to be dismissed and it is ordered accordingly, leaving the parties to bear their own cost.
  • SidhantSidhant Moderator
    edited September 2009
    Kona Murali Krishna, S/o Sathiraju, Hindu, male, aged 27 years

    Owner of Scorpio Jeep No.AP 05 V 6177

    R/o D.No.2-1-63, Ganapati Center, Yernagudem Road

    Nidadavole, W.G. Dist., -- Complainant

    1. The Branch Manager, United India Insurance Co., Ltd.,

    Nidadavole Branch, Nidadavole, W.G. Dist.,



    2. The Regional Manager

    United India Insurance Co., Ltd.,

    Regional Office, D.No.30-15-153, III & IV Floors

    Pavan Enclave, Dabagardens, Post Box No.2008

    Visakhapatnam. -- Opposite Party

    O R D E R


    1. The complainant purchased vehicle of Scorpio under finance for Rs.6,28,000/- for the purpose of his livelihood. The complainant registered the said vehicle at Rajahmundry on 18-2-2005 bearing registration No.A.P.05V 6177 and also got all India permit for running the same as Taxi cab from regional transport authority Kakinada on 24-2-2005 and the same is running tourist vehicle. The complainant has insured the said vehicle on 10-2-2006 with the 1st opposite party under Policy No.150605/31/05/01/00004761 for Rs.5,00,000/-. On 20-5-2006 at about 8-30 am., the vehicle of the complainant was proceeding from Eluru Rural near check post, the said vehicle met with an accident due to sudden application of brake by the driver of preceding vehicle bearing OR 15 F 9055. The accident was registered by Denduluru Police Station as a case in Crime No.77/2006. The said vehicle was taken to Garapati garage 1959 which is an authorized distributor for Mahindra and Mahindra vehicles for effecting repairs.

    The said garage estimated the expenditure for effecting repairs of the said vehicle. The complainant submitted claim forms on 25-5-2006 for claiming damages of the said vehicle. A sum of Rs.3,57,421/- was incurred towards expenditure for effecting repairs. After 8 months the complainant received a covering letter dt. 23-1-2007 bearing No.150605/MOD/2941/0607 intimating the claim at Rs.2,27,000/- from the surveyor. After receiving letter, the complainant made a representation to the 1st opposite party on 1-2-2007 about non-acceptance of the said claim due to undue delay in settling the claim. The 1st opposite party received the same but not responded. On 18-11-2006 the Garapati Garage issued notice demanding the complainant to pay Rs.150/- per day towards staying charges of the vehicle in the garage and also Financiers of Mahindra and Mahindra issued notice to the complainant to pay Rs.91,220/- towards part satisfaction of the loan amount due by 6-12-2006. The complainant received the same and intimated the same to the surveyor and also 2nd opposite party. On 20-8-2007 the complainant made a representation to the 2nd opposite party. Inspite of such letter also the opposite parties not responded. The complainant approached the insurance Ombudsman to redress his grievance.

    The insurance Ombudsman passed award under Sec. 16 of Redressal Grievance 1998 directed the 1st opposite party to pay Rs.2,50,000/- with interest as per IRDA from 1-3-2007 till the date of payment. The complainant has to pay a sum of Rs.10,200/- towards monthly instalment of payments of the loan. Due to damage of the vehicle in the accident he is not in a position to pay repayment of loan. On 11-8-2007 the Mahindra and Mahindra Financial Services also issued notice to the complainant to pay a sum of Rs.1,72,564/- towards discharge of the loan amount by the date. The complainant sent a reply expressing his inability to pay the said amount.

    2. The complainant prays that the Hon’ble Forum to direct the opposite party to pay a sum of Rs.9,32,535/- towards expenses incurred for effecting repairs, staying charges, repayment of loan amount, pecuniary loss and subjecting mental agony. Hence this complaint.

    3. The 1st opposite party while remained exparte, the 2nd opposite party filed its version denying the averments of the complaint and stated that immediately after receiving the intimation from the complainant with regard to the alleged accident, the opposite party appointed one G.V. Rama Krishna, L.A.E. Insurance Surveyor to assess the loss and damage of the vehicle caused in the said accident and the said surveyor visited the scene of accident and Garapati Garage and noted all the details and assessed the loss and damage at Rs.2,28,000/- and accordingly submitted a detailed report, that basing on the said report, the 1st opposite party settled the claim of the complainant at Rs.2,27,000/- after deducting the excess amount of Rs.1,000/- and intimated the same to the complainant. It is further alleged that the complainant refused to receive the same and approached the Insurance Ombudsman to redress his grievance, that after an elaborate enquiry, the Insurance Ombudsman vide proceedings dt. 8-2-2008 passed an award under Rule 16 of Public Grievances Rules, 1998 directing the opposite parties to pay a sum of Rs.2,50,000/- with interest as per D.R.D.A guidelines from 1-3-2007 till the date of payment that after receiving the award passed by the Insurance Ombudsman, the opposite party sent a letter to the complainant vide letter No.150605/Motorcl/2815/07 dt. 17-3-3008 intimating the complainant that the company is ready to pay the award amount and requested the complainant to send his consent letter in writing agreeing for the settlement and that the complainant refused the same and when he kept quite, a remainder was also again issued on 6-5-2008 to the complainant, that even then the complainant did not send any reply or send any consent letter and filed the present complaint with false and untenable allegations.

    It is further stated that as per the policy, the insured declared value is only Rs.5,00,000/-and that as per the policy conditions, the company shall not be liable to make payment in respect of consequential loss, depreciation, wear and tear, failures, breakage etc., and therefore this opposite party is not at all liable to pay any compensation under the heads of column No.11(b)(c)(d)(e) mentioned in the complaint and the value mentioned in column No.11(a) of complaint is not correct in view of the assessment and damages estimated by the qualified surveyor and therefore there is no deficiency in service in settling the claim of the complainant in any manner and this opposite party has done his duty as per the rules and regulations of the Act and terms and conditions of the policy. Thus the complaint is liable to be dismissed with exemplary costs.

    4. The complainant in proof of his claim filed his affidavit corroborating the averments of the complaint and got marked as Ex A.1 to Ex A.17. On the other hand, the 2nd opposite party also filed its affidavit in support of its version and got marked Ex B.1 to B.4.

    5. The points for determination now are :

    1) Whether there is any deficiency in service on the part of the opposite parties as alleged by the complainant ?


    2) Whether the complainant is entitled for the reliefs sought for by him ? if so, to what extent ?


    3) To what relief ?


    POINT No: 1 :

    As per the very version and the affidavit filed by the 2nd opposite party, there is no dispute about the ownership of the vehicle and its involvement in the accident and the claim made by the complainant for reimbursement of the expenditure incurred by him for repairs of the vehicle done by Garapati Garage because, this is the case where at one stage, the 1st opposite party settled the claim at Rs.2,27,000/- basing on its Surveyor’s report.

    There is also no dispute in the matter about the complainant approaching the Insurance Ombudsman to redress his grievance and about the passing of award by it directing the 1st opposite party to pay a sum of Rs.2,50,000/- with interest as per the DRDA rules from 1-3-2007 till the date of payment. It is also a fact borne out from the record that the 1st opposite party was ready to pay the said award amount to the complainant but the complainant having not been satisfied with the said awarded amount, did not come forward to receive the amount from the 1st opposite party and filed the present complaint.

    The contention of the complainant is that immediately after the accident, he reported the same to the opposite parties for settlement of the claim but the opposite parties took their own time with a long gap of about nearly 2 years and as such there is a deficiency in service on their part in settling the claim. It is also further contended by the learned counsel for the complainant that due to undue delay in settling the claim for about nearly 2 years, the complainant sustained huge loss which is to be compensated by the opposite parties since the vehicle in question was remained idle for want of payment for repairing charges etc., As admitted by the 2nd opposite party, it is a fact borne out from the record that the complainant is the owner of the vehicle which involved in the accident on 20-5-2006 and it is also not disputed by the opposite parties that the complainant immediately after the accident, reported the matter to them.

    If such is the situation, the opposite parties ought to have deputed their surveyor for assessing the loss and damage caused to the vehicle of the complainant expeditiously. Ex B.2 is the copy of the motor final survey report got marked by the 2nd opposite party which clearly goes to show that the vehicle was surveyed by the surveyor and a report to that effect was finalized on 15-9-2006 for the accident that took place on 20-5-2006. Even assuming for a movement, the said delay can not be considered as much delay but the opposite parties intimated the said fact of their settling the claim to the complainant on 23-1-2007 as can be seen from Ex A.11 ie., about after 8 months. The 1st opposite party while remained exparte, the 2nd opposite party also not assigned any reason for such a long delay in settling the claim of the complainant which itself constitutes the deficiency on the part of the opposite parties in rendering service to the complainant. Therefore, we found that the complainants as clearly established his case against the opposite parties in ascribing their acts to deficiency in service.

    POINT No: 2 :

    It is the case where it appears that the complainant having not been satisfied with the claim settled by the 1st opposite party, approached the Insurance Ombudsman to redress his grievance. As seen from Ex A.16, it is also a fact borne out from the record that the Insurance Ombudsman at Hyderabad after an elaborate enquiry, passed an award directing the opposite parties to pay Rs.2,50,000/- with interest as per DRDA Rules from 1-3-2007 till the date of payment. It is the contention of the learned counsel for the opposite parties that they were ready even to pay the said awarded amount but inspite of their intimation and remainder thereon, the complainant himself did not choose to receive the amount and therefore there is no delay on their part in making payment of the award amount passed by the Insurance Ombudsman as under Ex A.16. It is further contended by the learned counsel for the opposite parties that as per the terms and conditions of the policy, the company shall not be liable to make payment in respect of consequential loss, depreciation, wear and tear, failures, breakage etc., of the vehicle and therefore the complainant is not entitled for the entire reliefs sought for by him.

    On this aspect, it is the contention of the learned counsel for the complainant that because of the non-payment of the bill to Garapati Garage towards repairs of the vehicle, he could not take delivery of the vehicle from the workshop and ultimately the vehicle remained idle which consequently effected his income on the vehicle, and that the complainant also could not make payment of instalments to the finance company in time and thereby the finance company also by imposing huge interest insisting him to make huge payment and therefore the complainant is entitled for all the reliefs sought for by him. But we are unable to agree with the said contentions of the learned counsel for the complainant.

    Further, it is not the case of the complainant that the opposite parties have not at all settled the claim. It is a fact borne out from the record that the claim was settled by the opposite parties, but however with a grate delay. If really the complainant has not satisfied with the claim settled by the opposite parties, he ought to have received the settled claim with protest and then ought to have fight before the court of law for his redressal. In the case on hand, the complainant instead of doing so, approached the Insurance Ombudsman, got the matter enquired elaborately and after passing of award, he came forward with the present complaint on one ground that the said award passed by the Insurance Ombudsman is not binding on him and in another breath he has not satisfied with the quantum of amount awarded by the Insurance Ombudsman. But such contentions are untenable. However, as per the terms and conditions of the policy, the opposite parties are not liable to make payment in respect of consequential loss, depreciation, wear and tear, failures, breakage etc.,. But however, the complainant is entitled for a reasonable compensation for the undue delay caused by the opposite parties in settling the claim for the reason that it is the case of the complainant that he used to run the vehicle as a Taxi by engaging the service of a driver and used to earn Rs.8000/- per month as net income after deducting the necessary expenditure for the salary of the driver besides a sum of Rs.9000/- towards monthly instalments payable to the finance company.

    So, it is also an admitted fact borne out from the record, more particularly from Ex A.16, when the complainant approached the Insurance Ombudsman, Hyderabad, an elaborate enquiry was conducted and accordingly an award was passed directing the 1st opposite party to pay a sum of Rs.2,50,000/- along with interest as per the DRDA guidelines from 1-3-2007 till the date of payment. It is no doubt true that the award passed by the Insurance Ombudsman is not binding on this Forum but this is the case where the complainant himself approached the said Ombudsman and obtained award, but the complainant has not assigned any reason as to how the amount awarded by the Ombudsman is a meager one.

    Under the said circumstances, we find that the complainant is entitled only for a reasonable compensation towards pecuniary loss and for mental agony for the undue delay caused by the opposite parties in settling the claim expeditiously besides the awarded amount as quantified by the Insurance Ombudsman towards reimbursement of the amounts incurred in effecting repairs to the vehicle in question.

    POINT No: 3 :

    In view of our finding under Points Nos 1 and 2, the complaint is to be allowed by granting a reasonable relief.

    In the result, the complaint is allowed directing the opposite parties 1 and 2 to pay to the complainant a sum of Rs.2,50,000/- (Rupees two lakhs fifty thousands only) towards expenditure incurred by him for effecting the repairs as quantified by the Insurance Ombudsman together with interest thereon at the rate of 9% pa., from the date of submission of claim papers ie., from 25-5-2006 till the date of intimation of the settlement of claim ie., 23-1-2007 and again from the date of present complaint ie., 19-5-2008 till the date of realization along with a sum of Rs.50,000/- (Rupees fifty thousands only) towards pecuniary loss and RS.10,000/- (Rupees ten thousands only) towards compensation for mental agony and so also a sum of Rs.1000/-(Rupees one thousands only) towards costs of the complaint within 30 days from the date of due dispatch of free copy of this order.
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