United India Insurance

124678

Comments

  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Kushal Kumar Vij son of Sh. madho Ram, resident of 164, St. No.2, Peer Khanna Road, Opposite Dr. V.K. Tewari, Khanna, Ludhiana.

    (Complainant)

    Vs.



    United India Insurance Company D.O. Opp. Main Bus Stand, G.T. Road, Khanna-141401 through authorised signatory.

    (Opposite party)






    O R D E R




    1. Repudiation of the claim lodged under medi claim policy bearing no.200682/48/03/00541, valid from 22.3.2004 to 21.3.2005 obtained from the opposite party, is challenged to be wrong, null, void and illegal, in this complaint under section 12 of the Consumer Protection Act, 1986.

    2. Case of the complainant is that since March, 2001, without break, from time to time had been taking medi claim policies from the opposite party. Under these policies was insured risk for Rs. 1, 50,000/-. During continuation of the policy dated 22.3.2004 was admitted in DMC& H, Ludhiana from 14.10.2004 to 19.10.2004 and diagnosed as Right PUJ Obstruction with Hydronephrosis. Claim qua treatment for Rs. 75,229/- was submitted to opposite party, who referred it to their TPA, who failed to settle the claim. Hence, legal notice dated 26.4.2007 was issued to opposite party.


    He subsequently vide letter dated 30.4.2007 was intimated repudiating the claim on grounds of pre-existing disease under clause 4.1 of the policy. Such repudiation has been assailed to be null, void and illegal and claimed that no terms and conditions of the policy were made available or communicated to the complainant. Hence, defence taken by them is arbitrary. He was not suffering from pre-existing disease. Therefore, the complaint deserves to be allowed.

    3. Opposite party in reply pleaded that there is no deficiency in service on their part, complaint is not maintainable and the claim as lodged is not payable under exclusion clause 4.1 of the policy. Because, the complainant had pre-existing disease, which he knew at the time of taking the policy. He had claimed expenses for the treatment of disease namely “Right PUJ Obstruction Hydronephrosis”, for which he got treatment four years back from the year 2004 i.e. prior to taking of the first policy. Therefore, under the exclusion clause 4.1 of the policy, the claim was not payable and had rightly been repudiated. There is no deficiency in service on their part.

    4. In order to prove their assertions, both the parties led their evidence by way of affidavits and documents.

    5. We have heard the arguments addressed by the ld. counsel for the parties, gone through file, scanned the documents and other material on record.

    6. It is contended on behalf of the complainant that terms and conditions of the policy were never made available to the complainant by the opposite party nor the opposite party has been able to establish that ailment for which claim was lodged was pre-existing. Therefore, opposite party illegally and wrongly repudiated the same. On the other hand, ld. counsel for the opposite party contended that disease for which claim stood lodged was pre-existing and under terms and conditions of the policy for said disease company is not liable to pay any amount. Terms and conditions of the policy were made available to the complainant and had he been not provided, also could have objected outrightly. By not doing so, it means that he had received terms and conditions of the policy.

    7. We have considered rival contentions of the parties and gone through material placed by the parties on record.

    8. Ex.R4 is the repudiation letter containing reason of repudiating the claim. The reasons recorded thereunder are as under:

    “The present hospitalization is for the management of an ailment, which is related to a pre-existing condition clause 4.1 due to which your claim is repudiated. (Renal stones since Oct.2000-Policy inception from march 2001)

    Hence we regret to convey that the claim is not payable,

    We have retained the claim docket for future references.

    Thanking you and assuring you to our best services at all times. “



    9. For repudiating the claim, TPA of the opposite party had relied on a case summary and discharge slip Ex.R.2 of the complainant. This showed that complainant had taken treatment in DMC & H, Ludhiana on 14.10.2004 and was discharged on 19.10.2004. He was diagnosed of Right PUJ (Pyelo Uriteral Junction) Obstruction with Hydronephrosis. This PUJ (Pyelo Uriteral Junction) is part of kidney. Hydronephrosis is swelling of kidney. So, it means treatment taken by the complainant in (Department of Uroilogy of DMC & H, Ludhiana) was for Right PUJ (Pyelo Uriteral Junction) Obstruction with Hydronephrosis.

    10. In this discharge slip Ex.R.2; history of present illness recorded is as under:

    “ HDBT 4 years back when patient got US done for trauma abdomen when incidental finding of right PUJ calculus was made. No H/o chest pain/breathlessness/fever/cough/bladder/bowel obstruction.”



    11. As per history, he had HDBT since four years back when the patient got US (ultra Sound) done for trauma abdomen. Previous history showed that right PUJ calculus was made. So, it means four years prior to October, 2004, complainant had problem of calculus in PUJ (Pyelo Uriteral Junction), which is part of kidney.

    12. It is on the strength of aforesaid discharge summary Ex.R.2 that TPA of the opposite party repudiated the claim vide letter Ex. R.4. The present history of the ailment for which complainant took treatment showed that he had same problem four years back. Whereas condition no.4.1 of the policy (Ex. RW1/A) exempt the Insurance Company qua diseases and injuries which are pre-existing, when the cover incepts for the first time.


    As per discharge summary, ailment goes back to the year 2000 being four years old. As per own admission in para no.2 of the claim, complainant has taken the policy for the first time in March 2001. This means that his ailment was existing at the time of inception of the policy in the year 2001. Resultantly, if terms and conditions of the policy were brought to the notice of the complainant by the opposite party, then certainly clause 4.1 of the policy would be attracted, depriving the complainant to claim expenses from the opposite party.

    13. It was in these circumstances argued that terms and conditions of the policy were never made available by the opposite party to the complainant. Complainant has placed on record, copy of the policy Ex.C.1. It is mentioned in this policy Ex.C.1 that “this insurance is subject to hospitalization and domiciliary hospitalization, Policy as attached” (Emphasis laid). Though, in this policy Ex.C.1, which was made available by the opposite party to the complainant, it is mentioned that policy is attached. But alleged that complainant has not been made available along with this policy Ex.C1, the attached policy. If no policy was received by him along with Ex.C.1, as mentioned ‘policy attached’, he certainly would have taken matter with the opposite party for not making available terms and conditions of the policy or would have claimed that attached policy was not found with Ex.C.1.


    Therefore, we take it to be proved that policy along with Ex.C.1 was attached by the opposite party, which complainant withheld from this Fora and only filed Ex.C.1 without appending attached policy, as mentioned in it. The lacuna is filled by the opposite party by bringing on record terms and conditions of the policy Ex.RW1/A which is part of the policy Ex.R.1. Ex.R1/A contain detailed terms and conditions of the policy including exclusion clause 4.1, which absolve the Insurance Company qua payment regarding diseases/injuries which are pre-existing when the cover incepts for the first time.

    14. On behalf of the complainant, it was argued that non supplying of terms and conditions of the policy would mean that he is not bound therewith. In support he referred us to cases reported as Oriental Insurance Company Ltd. Vs. Modern Insulators Ltd. 1 (1997) CPJ 48 (NC) and Roshan Begin Vs. Life Insurance Corporation of India & Ors. reported in 2009 (2) CLT 140 (Hon’ble National Consumer Disputes Redressal Commission, New Delhi. But these authorities pertain to the cases where terms and conditions have not been supplied or no proof qua such supply is adduced. In the instant case, there is clear reference in the policy made available by the opposite party to the complainant that “Policy Attached”. Meaning thereby terms and conditions of the policy were supplied to the complainant. Hence, these authorities would be of no consequence to the complainant.

    15. In the instant case, cover note had incepted for the first time in March 2001, whereas treatment qua which claim was lodged by the complainant under the policy Ex.R.1 (Ex.C1) is during continuation of policy dated 22.3.2004 to 21.3.2005. But prior to March, 2001, he was having same ailment, for which claim was lodged. Therefore, it is proved to be pre-existing disease.

    16. In these circumstances, opposite party was justified in repudiating the claim by applying clause 4.1 of the policy Ex.RW1/A. Hence, there is no deficiency or negligence on their part and finding no merit the complaint is dismissed. We leave the parties to bear their own costs.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Surinder Singh son of Sh.Dalip Singh Prop of M/S Surender Traders resident of village Brot, Post Office Barsu, Tehsil Sadar, District Mandi, H.P

    …Complainant.

    V/S



    United India Insurance company Ltd Divisional Office at Jail Road, Mandi Town, District Mandi, H.P./ through its Divisional Manager.

    ..Opposite party.





    ORDER.

    This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986

    ( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The complainant averred that he is registered owner of vehicle No. HP-65-3499 ( JCB)which was duly insured with the opposite party vide policy Annexure C-2 for the period from 16-6-2008 to 15-6-2009under comprehensive insurance policy. That the JCB in question met with an accident on 26-7-2008 at Palampur ,District Kangra due to sudden failure of brakes while it was being driven by complainant himself having valid driving license .


    The accident was promptly reported to the opposite party who deputed their surveyor for inspection of damage caused to the JCB in the accident who after inspection advised him to repair the vehicle from some authorized dealer. The vehicle was repaired by spending Rs.80,000/- at Nerchowk . After repair of the vehicle, the same was again inspected by the surveyor of the opposite party and all the original cash memos of entire repair and spare charges and entire copies of documents were submitted to the surveyor for early settlement of the claim . The complainant averred that at the time of the accident one helper Sh. Panku @ Om Parkash son of Sh.Chand Ram was also injured in the accident of the vehicle .


    The complainant further averred that the claim was not settled by the opposite party and he had served the opposite party with legal notice dated 20-11-2008 ,but despite that the claim was not settled nor responded the notice which act on the part of the opposite party amounts to deficiency in service as well as unfair trace practice .With these averments , the complainant had sought a direction to the opposite party to pay Rs.80,000/- as own damage claim of the vehicle alongwith interest at the rate of 12 % per annum from 26-7-2008 till final payment Apart from this, Rs.20,000/- as also been claimed as compensation besides costs of complaint.

    2. The opposite party filed reply wherein it had taken preliminary objections that the complainant is not a consumer of the opposite party and as such the complaint is not maintainable and that there is no deficiency in service on its part. On merits ,the opposite party had admitted the insurance of the vehicle and its accident . It has been admitted that information of accident was given to it. It has also been admitted that the complainant had repaired the vehicle but it has been denied that he had spent a sum of Rs.80,000/- but pleaded that the surveyor deputed by it had assessed the loss vide report dated 30-8-2008 Annexure O-1 at Rs.46,067.94 paise as per the terms and conditions of the policy subject to deposit of salvage , value of which had been assessed at Rs.5500/-.


    The opposite party had pleaded that while processing the claim it was found that one unauthorized person was being carried in the vehicle at the time of the accident and as per the registration certificate the seating capacity of the vehicle is One only i.e. driver and since it is violation of terms and conditions of the insurance policy, therefore ,the opposite party was constrained to repudiate the claim and same was duly communicated to the complainant vide letter dated 21-1-2009 Annexure O-2. Rest of the contents of the complaint have been denied being wrong. The opposite party had prayed for dismissal of the complaint .

    3. The complainant had filed rejoinder reiterating the contents of the complainant and controverted those as made in the reply.

    4. We have heard the ld. counsel for both the parties and have carefully gone through the record. Be it stated that the insurance of the vehicle and its accident is not in dispute. However, the claim of the complainant has been repudiated on the ground that one unauthorized person was sitting in the vehicle at the time of the accident alongwith driver whereas the seating capacity of the vehicle is only one i.e. Driver. The fact that one other person was also sitting in the vehicle has also not been disputed by the complainant and in the complaint it has been pleaded that at the time of accident one helper Sh, Panku @ Om Parkash son of Sh. Chand Ram also sustained injuries .


    The perusal of the registration certificate annexure C-1 reflects that seating capacity of the vehicle is only one i.e. driver . Therefore, in view of the admission of the complainant himself , it has become clear that one other person was sitting in the vehicle in question alongwith driver. Since the seating capacity of the vehicle is one, therefore, we have no hesitation to conclude that the vehicle was being plied in violation of the terms and conditions of the insurance policy.

    5 The next question, which arises for determination is as to whether the opposite party was justified in repudiating the claim of the complainant as a whole on this score or not .The answer to this poser in all fairness would be in the negative for the reason that opposite party had failed to prove and establish that the carrying of one unauthorized passenger in the vehicle was the sole and contributory cause of the accident. No evidence has been led by the opposite party to this effect. In our opinion, it cannot be said that said breach is such a breach that the owner should in all event be denied indemnification.


    This breach cannot be termed as fundamental breach empowering the opposite party to repudiate the claim as a whole . As a matter of fact , the complainant or his driver by allowing unauthorized passenger in the vehicle has contravened the limitation clause as to use in the policy and in case of such breach, it is clause 10 of the Procedural Manual of Motor Claims which is applicable and as per the same , where there is any breach including breach of limitation as to use , the claim has to be considered and paid as Non Standard claim. The clause 10 of the Procedural Manual of the Motor Claim is reproduced here asunder:-

    “ 10. Non Standard Claims .

    Following standard claims

    Following types of claims shall be considered as non standard claim and shall be settled as indicates below after recording the reasons.



    Description Percentage of settlement

    Under declaration Deduct 3 years difference

    Of licensed carrying in premium from the

    Capacity amount of claim or deduct 25 % of claim amount whichever is higher



    Overloading of Pay claims not exceeding

    Vehicle beyond 75% of admissible claim

    Licensed carrying

    Capacity



    Any other breach Pay up to 75% of admissible claim

    Of warranty/condition

    of policy including

    limitation as to use





    6 The Hon’ble National Commission in its

    various decisions had held that if the vehicle is used contrary to the terms and conditions of the policy, the insurance company has to treat the claim as per the guidelines applicable for settlement of non standard claims and the percentages are also duly indicated in clause 10 of the Procedural Manual of Motor Claims . In the case titled National Insurance Company vs Muni Lal Yadav 2001(2) CPR-1( NC), the vehicle was insured as private vehicle but used as public vehicle at the time of accident. Hon’ble National Commission after relying upon the observations of Hon’ble Supreme Court in the case of B.V. Nagaraju vs M/S Oriental Insurance Company ltd II(1996)CPJ-18(SC) and M/S Skandia Insurance company ltd vs Kokilaben Chaudravadan 1987(2) SCC-654 had held that the claim is to be settled in accordance with Skandia’s case approved in B.V. Nagaraju case and according to Motor Claims guidelines applicable for settlement of non standard claims.


    In the present case also , the claim of the complainant is covered under clause 10 of the Procedural Manual of Motor Claims which provides that for “ any other breach of warranty/ condition of policy including limitation as to use” the claim shall be settled as non standard claim and pay up to 75% of the admissible claim. Therefore, in view of the aforesaid decisions of Hon’ble Apex Court as well as of the Hon’ble National Commission and also in view of the Motor Claims guidelines, it will be appropriate to direct the opposite party to treat the claim of complainant as non standard claim and to pay 75% of the compensation to which he is entitled.

    7 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle .The complainant in his complaint had claimed Rs.80,000 /- as repair charges .On the other hand, the opposite party has stated in its reply that loss assessed by the surveyor is Rs.46067/- subject to deposit of salvage, value of which has been assessed at Rs. 5500/-.The opposite party has also adduced in evidence the copy of report of Surveyor Sh. Mohinder K Sharma Annexure O-1which corroborates the version of the opposite party that the loss assessed by the surveyor on account of accident of the vehicle in question is to the tune of Rs.46067/- and value of salvage has been assessed at Rs.5500/-.The report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons.


    The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor and in view of the same , we hold that the liability of the opposite party with respect to the damage caused to the vehicle is Rs.46,067/- subject to deposit of salvage and the complainant is entitled to 75% of this amount which comes to Rs.34,550/-.

    8 In the light of above discussion, the complaint is partly allowed and the opposite party is directed to pay Rs.34,550 /- with interest at the rate of 9% p.a. from the date of filing of the complaint till realization subject to the deposit of salvage value of which has been assessed at Rs.5500/-. If the complainant fails to deposit the salvage in that event the opposite party shall be entitled to deduct the amount of salvage as assessed by the surveyor .In addition to this, the opposite party is also directed to pay Rs.1500/- as costs of litigation to the complainant.

    9 Copy of this order be supplied to the parties free of cost as per Rules.



    10 File, after due completion be consigned to the Record Room.



    is that at the time of the accident i.e. on 10-5-2008 the vehicle was being driven by his driver Sh. Pawan Kumar and he was coming from his native village Sari alongwith his wife to Manali and on the way it met with an accident. The aforesaid fact is corroborated by the first information report No.220/2008 dated 10-5-2008, Police Station Sadar, District Mandi wherein it has been mentioned that the vehicle was being driven by Sh. Pawan Kumar who died on the spot and at the time of the accident his wife was also travelling in the vehicle in question. The vehicle was having temporary registration number. As per section 43 of the Motor vehicle Act, temporary certificate of registration is valid for a period of one month. As per sale certificate Annexure C-3 the vehicle was purchased by the complainant on 16-4-2008 .


    It met with an accident on 10-5-2008 i.e. within a period of one month from its sale. The opposite party had repudiated the claim of the complainant on the ground that at the time of accident driver alongwith his wife were travelling in the vehicle which is a breach of Section 66 of the Motor Vehicles Act and the complainant could not justify the plying of the vehicle on road without registration and route permit .At this juncture , it would be relevant to refer to the relevant portion of section 66 of the Motor Vehicles Act , 1988 which reads as under:-

    “66. Necessity for permits (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or counter signed by a Regional or State Transport Authority or any prescribed authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used …….”

    5. The perusal of aforesaid section of Motor vehicles Act, 1988 shows that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place save in accordance with the permit granted by the competent authority. As per section 2(47) of the M.V. Act, “transport vehicle ” means a public service vehicle, a goods carriage , an educational institution bus or a private service vehicle . In the present case, the vehicle in question is neither a goods carriage nor an educational institution bus . As per sale certificate Annexure C-3 seating capacity of the vehicle including driver is five .


    Therefore, it cannot be said to be a private service vehicle . According to the opposite party, the vehicle in question was insured with it as a passengers carrying vehicle and the complainant has not denied this fact. Therefore , as per the admitted case of both the parties, it is a public service vehicle. As per section 2( 35) of the M.V. Act “public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxi cab, a motor cab, contract carriage and stage carriage . Therefore, in these circumstances it was incumbent upon the opposite party to establish that the vehicle was carrying passengers for hire or reward at the time of the accident.


    However, as per the first information report and as per the repudiation letter of the opposite party dated 1-9-2008, at the time of the accident driver was travelling in the vehicle alongwith his wife . The opposite party has failed to prove that at the time of the accident , the vehicle was being used for carrying passengers for hire or reward. Therefore, it cannot be said that the vehicle was being used as a transport vehicle for hire or reward without the permit at the time of the accident . Hence , in our opinion there is no violation of section 66 of the M.V. Act as the vehicle was not being used as “transport vehicle” without permit or route permit .


    As per section 39 of the M.V. Act , no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter. In the present case, it is the admitted case of the opposite party that the vehicle was registered and was provided a temporary registration number . As per section 43 of the Motor Vehicles Act,1988 temporary registration is valid for a period of one month . Admittedly the vehicle in question met with an accident within a period of one month from the date of its purchase and was bearing temporary registration number .


    Therefore , it is clear that at the time of the accident neither the vehicle was being plied in contravention of the provisions of the Motor Vehicles Act nor in violation of the terms and conditions of the insurance policy. Hence we have no hesitation to conclude that the opposite party had repudiated the claim of the complainant illegally which amounts to deficiency in service and the complainant is entitled for compensation on this count .

    6 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle . The complainant in his complaint had sought settlement of the claim of the vehicle on total loss basis . Be it stated that as per the certificate cum policy schedule Annexure C-2 , the insured declared value of the vehicle was Rs.2,51,957/-. The opposite party has adduced in evidence the photocopy of report of Surveyor Sh. Mohinder K Sharma dated 11-7-2008 who had assessed the Net Loss liability on total loss basis in the sum of Rs.2,41,957/- and after deducting the salvage value of Rs.85,000/-, net loss assessed is in the sum of Rs.1,56,957/- . The report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons.


    The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor dated 11-7-2008 and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is Rs. 2,41,957/- subject to deposit of salvage , value of which had been assessed by the surveyor at Rs.85,000/-.

    7 The complainant had claimed Rs.25,000 as compensation besides Rs.10,000/- as costs of litigation . As discussed above, since the claim of the complainant had been repudiated illegally by the opposite party and he had suffered harassment Therefore, in such circumstances , an amount of Rs.10,000/- will be sufficient to meet the end of justice on this score and Rs.2000 /- as costs of litigation.

    8 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay to the complainant Rs.2,41,957/-. with interest at the rate of 9% p.a. from the date of filing of the complaint till realization subject to the deposit of salvage . In case, the complainant fails to deposit the salvage within a period of one month from today , the opposite party is at liberty to deduct Rs.85,000/- on account of salvage from Rs.2,41,957/- .The opposite party is further directed to pay Rs..10,000/- as compensation and Rs.2000/- as costs of litigation .



    9 Copy of this order be supplied to the parties free of cost as per Rules.



    10 File, after due completion be consigned to the Record Room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Shri Yogeshwar Dutt S/o Shri Goria Ram,

    R/O Paplota, PO Domehar, Tehsil Arki,

    Distt. Solan (H.P.)



    … Complainant

    Versus



    United India Insurance Company Ltd.

    The Mall, Solan through its Branch Manager. …Opposite Party.







    O R D E R:




    The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant, avers that he being owner of the Brick kiln named and styled as B.K.G. Bricks Gram Udyog at village Paplota, P.O. Domehar, Tehsil Arki, District Solan, H.P., purchased one insurance policy bearing No.819767, on, 06.12.2005 from the OP-Company, which was valid upto 05.12.2006. He further alleged that on, 21.10.2006, the brick stock got fire and explosion, hence, the entire stock was destroyed in the said fire and explosion.


    The complainant, further, proceeded to aver, that, the aforesaid fire incident, was brought to the notice of the OP-Company, as such, got the loss assessed. Thereafter, the complainant supplied the requisite documents to the OP-Company for settlement of the insurance claim, but the OP-Company, instead of settling his claim, repudiated the same, on, 01.04.2006, illegally and wrongly. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, inasmuch, as, that there is no cause of action, locus standi to file the present complaint, and non-joinder of necessary party. On merits, it is denied that the complainant purchased the insurance policy, rather, the same was issued in the name of HPSCDC Solan. It is also denied that the brick kiln was insured by the complainant. They contend that a standard Fire and Special Perils Insurance policy bearing No.111301/11/05/11/00000645, w.e.f. 06.12.2005 to 05.12.2006, was purchased by HPSCD Corporation, Solan A/c Yogeshwar Dutt, from the OP-Company covering the risk of Plant and Machinery for Rs.2.00 lacs and stock of finished and unfinished goods for Rs.2.00 lacs.


    It is further contended that on the night of 21.01.2006, an explosion took place in the said kiln due to gas formation from the burning coal inside the kiln causing partial damage to the kiln, hence, only 25000 bricks were found to be broken and damaged on account of the aforesaid explosion, hence, it is denied that the total loss was caused to the brick kiln. They further contend that the brick kiln, was not covered by the insurance policy. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

    3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

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

    5. Undisputedly, the policy, as purchased by the complainant from the OP-Company, took within, its, ambit destruction or damage caused to the Brick Kiln, of the complainant. An explosion, took place, on, 21.01.2006 in the property of the complainant as insured with the OP-Company. The OP-Company succinctly has repudiated the claim of the complainant, on, the score of the purported cause of the explosion as had occurred in the Brick Kiln factory of the complainant, falling within the scope of the exclusionary clause, of, Annexure R-1, annexed with the file of the case, inasmuch, as, in the eventuality of the destruction having come to be caused to the insured property by, its, own fermentation, natural heating or spontaneous combustion, then, the liability of the OP-Company, to, indemnify the complainant the damage caused to the property insured, is, exculpated.

    6. The OP-Company, to, sustain, its, contention, has relied upon Annexure R-2, which, is, the report of the Surveyor & Loss Assessor, in, which, he, has detailed the cause of explosion and which cause of fire/explosion in the Brick Kiln of the complainant, which, is, the property insured with the OP-Company, has been anvilled on, the strength of the statement of the complainant, in which he has attributed the said explosion, to gas formation, as had occurred in the ignited coal set, a, fire, to, bake the raw bricks. The cause of fire attributed in the report of the Loss Assessor, anvilled, on, the statement of the complainant, which statement exists, on, record, as, Annexure R-5, being neither controverted or repulsed and, its, perusal foisting truthfulness to the cause of explosion, in, the Brick Kiln as attributed in the report of the Loss Assessor, hence, assumes conclusiveness.

    7. With the conclusion as formed above and with the existence on record of the photographs of the Brick Kiln, whose perusal divulges the fact that the complainant had taken to bake bricks in the Brick Kiln plant not designed in a scientific manner, rather, it being, a, plant fabricated by local methods, obviously, the act of the complainant in setting a fire, the coal heaped along with raw bricks, which ignited coal, admittedly, as, revealed in Annexure R-5 resulted, in, gas formation and explosion of the lot of bricks heaped in the Brick Kiln. With the complainant admittedly having resorted not to bake bricks in a Brick Kiln Plant, fabricated in a scientific manner in accordance with an approved project, rather, his having taken to adopt local as well, as, unscientific methods, to bake bricks, which, local method, as, borne out by the admission of the complainant proved disastrous or in other words, when the, local methods, admittedly resulted, in, the explosion in the Brick Kiln, causing by gas formation, arising from the ignited coal used for baking of the bricks, hence, inevitably, given the square and unimpeachable admission, of, the complainant, we are led, hence, to the sequel, that, the OP-Company has been able to clinchingly prove, that, the cause of explosion admittedly as was caused by gas formation arising from the burning of coal used for baking bricks in a unscientifically fabricated Brick Kiln Plant, emphatically falls within the scope, of, the exclusionary clause, as referred, to, above.

    8. With the OP-Company, having proved the cause of explosion in the Brick Kiln of the complainant having been caused by the facts falling within the exclusionary clause, accordingly, the repudiation of the claim of the complainant by it, was tenable, hence, no deficiency in service can be attributed on the part of the OP-Company.

    9. Resultantly, the complaint deserves dismissal as such we dismiss the same. No order as to the costs. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    1. Shri Naginder Singh

    2. Sudarshan Singh

    3. Inder Singh

    4. Ravinder Singh

    5. Deepak Chauhan all sons of Sh. Het Ram, R/o Vill. Kotla Mahal, Tehsil rajgarh, Distt. Sirmaur, H.P.





    … Complainants.

    Versus





    United India Insurance Co. Ltd.

    Through its Branch Manager,Solan,

    Distt. Solan. H.P. … Opposite party.

    ………………………………………………………………………..



    O R D E R:




    This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainants aver that they are registered owner of a tractor bearing registration No.HP-16-0243, which was insured, by them, with the OP-Company, for a period of one year commencing from 20.01.2003 to 19.01.2004. They further aver that the aforesaid vehicle, unfortunately, met with an accident, on, 01.05.2003, during the currency of the insurance policy and suffered extensive damage. It is further averred that, the factum of the vehicle, having met, with an accident, was reported to the OP-Company, as also, to the Police.


    Thereafter, they lodged a insurance claim with the OP-Company, who instead of settling it, dilly-dallied the same on one ground or other. Hence, it is averred that, there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, and breach of terms and conditions of the insurance policy. On merits, it is contended that at the time of accident, two unauthorized passengers were traveling in the tractor. They have also contended that since the claim was repudiated vide letter dated 30.11.2004, hence, the complaint, being time barred, is not maintainable. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

    3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

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

    5. During the course of the arguments, the learned counsel for the OP-Company, has vigorously urged before us that the present complaint, filed by the complainants, before this forum is not maintainable, inasmuch, as it has been filed, on, 06.09.2007, whereas, the claim was repudiated as reflected in letter dated 30.11.2004, duly addressed to the complainant, hence, the complaint being time barred, is liable to be dismissed on this score alone.

    6. As per the mandate of the Consumer Protection Act, 1986, as detailed in Section 24A, The District Forum, the State Commission or the National Commission, shall not admit a complaint, unless, it is filed within two years from the date on which the cause of action has arisen. In the present case, undisputedly, the accident took place on, 01.05.2003, and thereafter, the OP-Company vide Annexure OP-3, repudiated the claim of the complainant, on, 30.11.2004, whereas, the complaint came to be lodged before this Forum, on, 06.09.2007, i.e. after three years from the date of repudiation of the claim of the complainants by the OP-Company or the accrual of clause of action. The complainants have neither filed any application seeking condonation of delay nor have given any reasons in the complaint, for filing the complaint so belatedly.

    7. Hence, without going into the merits of the case, the only conclusion, which is sprouting from the aforesaid conclusion, is, that the complaint filed by the complainants before this Forum, on, 06.09.2007, cannot be entertained by this forum, it, being hopelessly time barred. As such, it is to be held, that, their, is, belated delay on the parts of the complainants in approaching this Forum, for redressal of their grievances, which cannot be gone into by this forum, for lack of jurisdiction by this Forum. Hence, the complaint is dismissed, being hopelessly time barred. No order as to the cost.

    9. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    M/s. Sood Chemical Industries (P) Ltd., New Abadi, Hoshiarpur, through Sh. Sheel Sood, Director.


    .......... Complainant

    versus


    1.

    United India Insurance Co.Ltd., Jalandhar Road, Hoshiarpur, through its Branch Manager.
    2.

    United India Insurance Co.Ltd., Regd. Office: 24, Whites Road, Chennai.
    3.

    Jasjit Vij, Surveyor, M/s. Vij Engineers Enterprise, Surveyor & Loss Assessor, BMC Chowk, Jalandhar City.

    ........... Opposite Parties





    1.

    The complainant namely M/s. Sood Chemical Industries (P) Ltd., has filed the present complaint thought its Director, Sh. Sheel Sood, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the complainant-company is having its godown situated at Bharwain Road in the revenue estate of village Sukhiawad. The complainant company on 13.8.2008 was having in its stock huge quantity of chemicals and other material alongwith barrels. The detail has been given vide para No. 3 of the complaint.
    2.

    It is further the case of the complainant that the goods lying in the godown were duly insured with opposite parties No. 1 and 2. It is further the case of the complainant that the company purchased standard fire and special perils policy from opposite parties No. 1 and 2 on 30.4.2008 valid upto 29.4.2009. The complainant paid Rs. 5393.00 as premium on 1.5.2008 to opposite parties No. 1 and 2.
    3.

    It is further the case of the complainant that on 13.8.2008, there were unprecedented rains in the area and because of that the water entered in the premises/godown of the complainant and caused heavy loss. The detail of the loss had been given vide para No. 5 of the complaint. That the complainant suffered loss to the tune of Rs. 2,36,342.40 on account of flushing away of the material and empty barrels due to unprecedented rains. The complainant reported the matter to PS Sadar and DDR No. 22 was recorded and the complainant also lodged the claim with opposite parties No. 1 and 2, who in turn appointed the surveyor to assess the loss.
    4.

    It is the allegation of the complainant that it was to his surprise that the surveyor – OP No. 3 on 1.11.2008, wrote a letter that he met the representative of the complainant. The broken locks of main gate and drums were lying there in tilted position and there was no loss of any stock/material. That the representative of the complainant told that the locks of main gate got broken due to impact of water and chemical drums washed away, which is unbelievable. That the fire policy does not cover theft of stocks. It is further averred that the surveyor – OP No. 3 for certain reasons prepared the survey report to the detriment of the complainant. It is further averred that the surveyor did not contact the representative of the complainant-company nor he visited the site in order to assess the loss on the spot. The surveyor prepared the report while sitting in his office. The complainant made a request to the opposite parties No. 1 and 2 to admit the claim, but of no consequences, hence this complaint.
    5.

    The opposite parties No. 1 and 2 filed the joint reply. The preliminary objections vis-a-vis maintainability, jurisdiction, estoppel and non-joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is denied that the Godown of the complainant situated at Bharwain Road, Hoshiarpur is insured with the replying opposite parties. As per insurance policy, the property of the complainant situated at Nai Abadi, Hoshiarpur was insured. However, it is admitted that the complainant obtained the fire policy from the replying opposite parties, which was valid from 30.4.2008 to 29.4.2009. It is admitted that the intimation regarding the alleged loss dated 13.8.2008 was given to the replying opposite parties, and thereafter, OP No. 3 was deputed to assess the loss.
    6.

    It is further replied that OP No. 3 visited the spot and clicked the photographs of the building alleged to be a godown of the insured. The lock was lying broken. That no loss can be caused as alleged by the complainant and fraud is being played with the insurance company to get a false claim. It is admitted that the loss due to flood is covered by the insurance policy. The claim was rightly repudiated by the insurance company, as per survey report dated 18.9.2008. The repudiation of the claim vide letter dated 24.9.2008 is legal.
    7.

    The opposite party No. 3 was proceeded against ex-parte on 11.5.2009.
    8.

    In order to prove the case, the complainant tendered in evidence affidavit of Sheel Sood – Ex. C-1, copy of DDR – Mark C-1, copy of claim form – Mark C-2, copy of Policy – Mark C-3, copy of Cover Note – Mark C-4, copy of Resolution – Mark C-5, copy of letter of Insurance Company – Mark C-6, copy of letter by complainant – Mark C-7, copy of bills – Mark C-8, Mark C-9 and Mark C-10 and closed the evidence on behalf of the complainant.
    9.

    In rebuttal, the opposite parties No. 1 and 2 tendered in evidence Insurance Policy – Ex. OP-1, letter dated 24.9.2008 – Ex.OP-2, letter dated 18.9.2008 of M/s. Vij Engineers – Ex. OP-3, photographs – Ex. OP-4 and Ex. OP-5, affidavit of Sh. S.K. Aggarwal, Divisional Manager, United India Insurance Company Ltd., Hoshiarpur – Ex.OP-6, and affidavit of Sh. Jasjit Singh, Prop., M/s. Vij Engineers Enterprises – Ex. OP-7.
    10.

    That vide order dated 19.8.2009, the opposite parties No. 1 and 2 – insurance company were allowed to place on record the copy of the Survey Report dated 18.9.2008.
    11.

    The learned counsel for the complainant and opposite parties No. 1 and 2 have filed written arguments. We have gone through the written submissions and record of the file minutely.
    12.

    The learned counsel for the opposite parties No. 1 and 2, Sh. Brij Thakur argued that the property of the complainant situated at Nai Abadi, Hoshiarpur was insured with the insurance company. It was further argued that as the Godown of the complainant situated at Bharwain Road, Hoshiarpur is not insured with the insurance company, therefore, the complaint deserves to be dismissed. The learned counsel for opposite parties No. 1 and 2 made a reference to the insurance policy – Ex. OP-1 and on its title page, it has been recorded that the property of the complainant situated at Nai Abadi, Hoshiarpur was insured, whereas the alleged loss pertains to the property, situated at Bharwain Road, which is not covered under the policy – Ex. OP-1.
    13.

    The learned counsel for opposite parties No. 1 and 2 further argued that the claim was repudiated by the insurance company as per the recommendation of the Surveyor qua Ex. OP-2 and Ex. OP-3. It was argued that Ex. OP-2 is a repudiation letter dated 24.9.2008. The claim has been repudiated by the insurance company on the following ground :

    “As per Survey Report the loss is outside the scope of policy.”

    13.

    Ex. OP-3 is a letter written by M/s. Vij Engineer's Enterprise, Surveyors and Loss Assessors, Jalandhar City dated 18.9.2008, wherein it has been stated by the Surveyor that “chemical barrels washed away due to flood water after breaking lock of main gate which is beyond believable and unknown person took away chemical barrels. There was no loss to chemical barrels under the fire policy, so, claimed loss is outside the scope of policy.
    14.

    Now, the points which call determination from this Court are :

    i) Whether the godown of the complainant was insured with opposite parties No. 1 and 2.

    ii) Whether the loss suffered by the complainant is covered by the insurance policy.

    iii) What is the loss caused to the complainant?

    15.

    The complainant has produced the Cover Note – Mark C-4 issued by opposite parties No. 1 and 2 on the record. The close scrutiny of the said Cover Note clearly depicts that the godown situated at Sukhiabad, Bharwain Road, Hoshiarpur belonging to M/s. Sood Chemical Industries Pvt. Ltd., Nai Abadi, Hoshiarpur was insured by the opposite parties No. 1 and 2 – insurance company. The relevant portion of the Cover Note under the Head “Property Insured & Terms” - Mark C-4 is reproduced as under :-

    “On stock of Rosin & other like chemicals including other items pertaining to insured trade wholst stored/lying in A-Class godown at Sukhiabad, Bharwain Road, Hoshiarpur of M/s. Sood Chemical Industries Pvt. Ltd., Nai Abadi, Hoshiarpur.”


    16.

    The learned counsel for the opposite parties No. 1&2 submitted that the Cover Note is valid only for 30 days, and thereafter, the insurance policy is issued, therefore, the complainant cannot draw any advantage from the Cover Note issued by the insurance company, referred to above.
    17.

    This limb of the argument raised by the learned counsel for the insurance company did not hold any water, as the Cover Note – Mark C-4 had been issued by insurance company-opposite parties No. 1 and 2, and none else, and insurance company cannot take departure from its recitals. Since qua Mark C-4, it is specifically recorded/depicted that the godown situated at Sukhiabad, Bharwain Road, Hoshiarpur belonging to M/s. Sood Chemical Industries Pvt. Ltd., was insured, therefore, it is held that the godown of the complainant situated at Sukhiabad, Bharwain Road, Hoshiarpur, was insured with the opposite parties No. 1 and 2 – insurance company. It will not be out of place to state that the insurance policy is to be issued on the basis of the Cover Note issued by the insurance company and in this case, on the basis of the Cover Note – Mark C-4. Therefore, it can be held without any hesitation that the Cover Note – Mark C-4 is the basis to prepare the Insurance Policy – Ex. OP-1 and Mark C-3.
    18.

    The opposite parties have repudiated the claim of the complainant qua – Ex. OP-2 on the ground that as per survey report the loss is outside the scope of policy. Ex. OP-2 is repudiation letter and Ex. OP-3 is a letter dated 18.9.2008 written by M/s. Vij Engineer's Enterprises, Surveyors and Loss Assessors to the insurance company, wherein it has been stated that “chemical barrels washed away due to flood water after breaking the lock of main gate,which is beyond believable and unknown person took away chemical barrels. We do not find any loss to chemical barrels under fire policy. So, claimed loss is outside the scope of policy.”
    19.

    The learned counsel for the complainant argued that the surveyor is not an investigator. That the duty of the surveyor is to assess the loss to the property. The complainant has produced on record the copy of the DDR – Mark CA dated 13.8.2008 recorded with PS Sadar, Hoshiarpur, wherein it has been recorded that at Sukhiabad there is a godown of Sood Chemical Industry. The water has entered in the godown, causing loss to chemicals. The complainant has alleged in the complaint that on 13.8.2008, there were unprecedented rains in the area and because of that the water entered into the premises/godown and caused heavy loss. The said averment contained in the complaint is supported by the DDR – Mark CA. In view of this, the letter of Surveyor and Loss Assessor – Ex. OP-3, wherein it has been recorded that unknown person took away chemical barrels is not sufficient to conclude that the loss is caused by theft and not by flood water. That vide para No. 12 of the reply, the opposite parties No. 1 and 2 had specifically admitted that the loss due to flood is covered by the policy – Ex. OP-1.
    20.

    The D.D.R. - Mark CA has been recorded by the policy – government officials in the discharge of their official functions, consequently it is held that the loss has been caused due to flood/unprecedented rains. The letter written by the Surveyor – Ex. OP-3 is not sufficient to rebut the DDR dated 13.8.2008 – Mark CA. Moreso, the DDR has been recorded on the day,the occurrence took place.
    21.

    The complainant has produced on record the bills – Mark C-8 to Mark C-10 to prove the loss. Mark C-8 is an invoice dated 6.6.2008 of Rs. 95,001/- issued by New Tech Polymers (India), Mark C-9 is a bill dated 18.7.2008 of Rs. 56,160/- issued by Bassi Mroof Gram Udyog and Mark C-10 is an invoice of Cardinal Resins dated 8.8.2008 of Rs. 1,21,150/-. The documents – Mark C-8 to Mark C-10, referred to above, go unrebutted, as the opposite parties No. 1 and 2 – insurance company had not got assessed the loss. However, it has been clarified vide para No. 5 of the complaint that the complainant has actually suffered the loss to the tune of Rs. 2,36,342.40, therefore, in the circumstances, it is held that the complainant is entitled for compensation of Rs.2,36,342.40/-.
    22.

    The learned counsel for the opposite parties No. 1 and 2 - insurance company submitted that since the loss caused to the complainant is not proved, therefore, the matter should be referred to the Civil Court. The reliance was placed on 2008(3) CPR 292 (NC), United India Insurance Co. Ltd. Versus M/s. Sri Dwarika Dhees Industries. Since the complainant to prove the loss has produced on record the bills/invoices – Mark C-8 to Mark C-10 and the said bills/invoices go unrebutted, therefore, it does not lie in the mouth of the ld. Counsel for opposite parties No. 1 and 2 that the loss caused to the complainant has not been proved. Since the opposite parties No. 1 and 2 have failed to make the payment of Rs. 2,36,342.40, it amounts to deficiency in service on their part.
    23.

    As a result of the above discussion, the complaint of the complainant is accepted and the opposite parties No. 1 and 2 are directed to pay Rs. 2,36,342.40 with interest @ 9% per annum from the date of filing of complaint i.e. 27.3.2009 till realization. Litigation expenses are assessed at Rs. 2,000/- to be paid by the opposite parties No. 1 and 2 to the complainant within one month from the date of receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Ram Singh aged 45 years, s/o Naranjan Singh r/o Village & Post Office: Badala, Tehsil and Distt. Amritsar at present r/o village Dhoot Kalan, Block Bhunga, Tehsil and District Hoshiarpur.


    .......... Complainant

    versus


    1.

    United India Insurance Co. Ltd., G.T. Road, Dasuya, Distt. Hoshiarpur, through its Branch Manager.
    2.

    ICICI Bank Ltd., Ist Floor, 36, The Mall, Amritsar, through its Branch Manager.

    ........... Opposite Parties




    1.

    The complainant namely Ram Singh has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “herein after referred as the Act”. Stated briefly, the facts of the case are that the vehicle bearing registration No. PB02-AR-9946 was under HPA through OP No. 2. That OP No. 2 got insured the said vehicle from OP No. 1 – United India Insurance Co. Ltd.
    2.

    It is the allegation of the complainant that on 26.1.2007, the said vehicle was being driven by Sh. Jaswant Singh from Bhunga to Hoshiarpur.That when the said vehicle reached near village Abbowal, it met with an accident with tractor trolley. The driver, Jaswant Singh was holding a valid driving licence. The vehicle was badly damaged in the accident. The matter was reported to PS Hariana on 31.1.2007. The complainant also informed the opposite party about the accident. The opposite party deputed the surveyor.
    3.

    It is further the case of the complainant that he got repaired the said vehicle from Basra Sales Corporation and Manohar Auto Diesel and Electricals. M/s. M.L. Mehta & Company, the surveyor assessed the net loss to the tune of Rs. 58,216.73, whereas the complainant had spent the amount of Rs. 1,13,822/- on the repair of the vehicle. The detail of the amount spent upon the repair of the vehicle had been given vide para No. 4 of the complaint.
    4.

    It is the allegation of the complainant that the opposite party No. 1 had not allowed the payment of the actual loss. It is prayed that the OP No. 1 may be directed to pay Rs. 1,13,822/- alongwith interest and litigation costs.
    5.

    The OP No. 1 filed the reply. The preliminary objections vis-a-vis maintainability, pre-mature, suppression of material facts and cause of action were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that the vehicle No. PB-02-AR-9946 was insured with the replying OP. It is denied that the accident took place on 26.1.2007. That DDR No. 8 dated 31.1.2007 is a result of manipulation with the police of PS Hariana to get the false claim. It is denied that the replying OP allowed the complainant to get the vehicle repaired.
    6.

    It is further replied that the preliminary survey was conducted by Mr. Sham Sunder Sharma, who submitted his report dated 21.2.2007, and thereafter, a final survey report dated 20.9.2007 was obtained from M.L. Mehta and Co., Surveyor and Loss Assessors, who after considering the estimate bills of M/s. Basra Sales Corporation, Jalandhar and M/s. Bachan Brothers, Denting Works, Jalandhar, assessed the loss to the tune of Rs. 58,216.73. It is denied that the complainant has spent the amount of Rs. 1,13,822/- on the repair of the vehicle. It is denied that the complainant got the vehicle repaired from M/s. Basra Sales Corporation and Manohar Auto Diesel and Electricals. The bills as per detail given under Sr. No. (i) to (x) in para No. 4 of the complaint had not been submitted to the replying OP at the time of assessment of the loss to the vehicle. The other alleged bills mentioned under Sr. No. (i) to (x) in para No. 4 of the complaint regarding repair had been manipulated to get false claim.
    7.

    The OP No. 2 was proceeded against ex-parte on 18.3.2009.
    8.

    In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, copy of insurance policy – Mark-A, survey report dated 20.9.2007 – Ex. C-2, copy of RC – Mark-B, original cheque dated 15.1.2009 – Ex. C-3, another cheque dated 15.1.2009 – Ex. C-4, DDR dated 31.1.2007 – Ex. C-5, copy of DL dated 9.3.2006 – Mark-C, bill dated 1.10.2008- Mark-D, bills – Mark-E, Mark-F, bill dated 3.1.2009 – Mark-G, bills dated 3.9.2008 – Mark-H, Mark-J, bill dated 31.3.2009 – Mark-K, bills dated 17.4.2007 – Mark-L, Mark-M, Mark-N, bill dated 2.1.2009 – Mark-O, bill dated 20.3.2007 – Mark-P, bill dated 8.4.2007 – Mark-Q, bill dated 3.4.2007 – Mark-R, receipt of Parking charges – Mark-S, Fee for survey – Mark-T, Labour charges – Mark-U, affidavit of Sh. Harish Kumar – Ex. C-6 and closed the evidence.
    9.

    In rebuttal, the OP No. 1 tendered in evidence affidavit of Ashwani Verma – Ex. OP-2, additional affidavit of Ashwani Verma- Ex. OP-3, Motor Survey report dated 21.2.2007 – Mark OP-4 (3 sheets), estimate of Basra Sales Corporation – Mark OP-5 (4 sheets), estimate of Bachan Brothers – Mark OP-6 (2 sheets), photocopy of DDR – Mark OP-7, letter dated 29.1.2009 – Mark OP-8 and closed the evidence on behalf of OP NO. 1.
    10.

    The learned counsel for the complainant and OP No. 1 filed written arguments. We have gone through the written submissions and record of the file minutely.
    11.

    The other facts are admitted. The complainant has claimed that OP No. 1 may be directed to pay Rs. 1,13,822/- alongwith interest and litigation costs, whereas OP No. 1 – Insurance Company had raised the plea that the surveyor has assessed the net loss to the tune of Rs. 58,216.73. Therefore, the only point which calls determination from this Court is whether the complainant is entitled for the amount of Rs. 1,13,822/- or Rs. 58,216.73?
    12.

    The OP No. 1 filed the written arguments. That vide Para No. 4, at Page No. 4 of the written arguments, the OP No. 1 had stated that they are ready to pay the amount assessed by the Surveyor qua Survey Report – Ex. OP-1 dated 20.9.2007 subject to deduction of Rs. 2,500/-, the value of salvage.
    13.

    The complainant has produced on record the Invoices/Bills – Mark-D to Mark-H, Mark-J to Mark-R. Admittedly, the complainant has neither produced on record the receipts nor the affidavits of the persons to whom the payment was made to prove the actual payment, therefore, it loses its evidentiary value and on the contrary, the OP-1 has placed on record the report of the M/s. M.L. Mehta & Co., the surveyor & loss assessor – Ex. OP-1, qua which the nett. loss to the vehicle in dispute had been assessed to the tune of Rs.58,216.73. Since the complainant has failed to produce the receipts to prove the payment of Rs.1,13,822/-, therefore,the report of the Surveyor qua Ex. OP-1 is to be accepted as the Surveyor is an expert and also an independent person to assess the damage caused to the vehicle of the complainant , thus, we are of the opinion that the claim of the complainant can be allowed on the basis of the Survey Report – Ex. OP-1.
    14.

    As a result of the above discussion, the complaint is accepted and the opposite party No. 1 is directed to pay Rs.58,216.73 to the complainant with interest @ 9 % per annum from the date of filing the complaint i.e. 27.1.2009 till realization alongwith litigation expenses of Rs.1000/- within one month. Copy of the order be sent to the parties free of cost. File be consigned to the record.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Sushma Tiwari, 63 years, widow of Late Sh. Naresh Tiwari, resident of Gali No. 9, Krishan Nagar, Bal Krishan Road, Hoshiarpur, Tehsil and District Hoshiarpur.


    ...... Complainant

    versus


    1.

    United India Insurance Co. Ltd., Jalandhar Road, Hosharpur, through its Divisional Manager.
    2.

    United India Insurance Co. Ltd., SCO 58-59, Ist Floor, Sector 34-A, Chandigarh, through its Branch Manager, Mr. Vineet Sian.
    3.

    Grievance Department (Insurance), SCO: 123-124, Sector 17-B, Chandigarh, through its Deputy Manager.

    ...... Opposite Parties





    1.

    The complainant namely Sushma Tiwari has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the brother-in-law of the complainant got insurance policy under “The Family Health Plan”for himself and his family members including the complainant by paying the premium on 14.9.2005, 11.9.2006, 12.9.2007 and 12.9.2008.
    2.

    It is the case of the complainant she is widow and has no source of income, as such she is dependent upon her brother-in-law, Mr. Yogesh Tiwari and his family. It is the case of the complainant that OP No. 1 at the time of first insurance included the name of the complainant, as his family member and it continued till 12.9.2008.
    3.

    It is the allegation of the complainant that on 12.9.2008, the opposite parties with an ulterior motive separated her name without giving any reason. That the health insurance plan of the complainant is running in its fourth year. The complainant is paying the premium to the opposite parties regularly.

    4.

    It is further the case of the complainant that she filed her first medical claim under policy No. 110500/48/07/12/00308 with the opposite parties, to which the opposite parties raised the objection, but after filing the reply by the brother-in-law of the complainant, the medical claim was released. That the complainant again got admitted in Hospital for her treatment. The complainant filed her medical claim of Rs. 8368/-, but the opposite parties only released the amount of Rs. 7800/- in the month of January, 2009.
    5.

    It is the grouse of the complainant that OP No. 1 sent a letter dated 16.1.2009, whereby her insurance policy was cancelled without any explanation or reason. It is further the allegation of the complainant that the insurance company accepted the insurance premium from 14.9.2008 to 13.9.2009. The complainant approached OP No. 1, with the request to disclose the reason of cancellation of the policy, but of no consequences. The complainant also sent registered letter dated 28.1.2009 to the opposite parties. The OP No. 1 sent a letter dated 27.1.2009, which was received by the complainant on 31.1.2009. The complainant made several requests to OP No. 1, but the insurance company had failed to give the reason for cancellation of the insurance policy. It is further averred that the opposite party No. 1 sent letter dated 17.2.2009 qua which the objection with regard to the mis-representation and age were raised. The complainant replied the said letter and submitted the photocopy of her passport, ration card and voter ID for clarification. However, the insurance company failed to continue the policy of the insurance. The complainant again approached OP No. 1, but there was no satisfactory reply, hence this complaint.
    6.

    The opposite parties filed the joint reply. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant has admitted her age as 67 years in her letter dated 28.1.2009. The complainant had given monthly income in the Proposal Form as Rs. 10,000/-. It is further replied that the complainant was one of the policy holders in the policy issued in the name of Yogesh Tiwari, valid upto 12.9.2008. The complainant was paid a claim of Rs. 27,042/- under the said policy.
    7.

    It is further replied that on 12.9.2008, the complainant got a fresh policy by concealing material facts and giving wrong information. The complainant did not disclose about the earlier policies and the claim received under the said policies. It is further replied that on receiving a claim from the complainant, under the present policy, the earlier policies came to the notice of the replying opposite parties. It transpired the complainant suffered heart attack in December, 2007 and she was also suffering from diabetes since December, 2007. The fact of suffering heart attack as well as diabetes was not disclosed in the Proposal Form. The complainant has only stated that she got cardiology treatment on 18.2.2008. Thus, after settling the claim of the complainant, the policy was cancelled on the ground of non-disclosure of material facts and misrepresentations vide letter dated 16.1.2009.
    8.

    It is further replied that on receipt of representation from the complainant against the cancellation of policy, a letter dated 17.2.2009 was sent qua which the reason for cancellation was disclosed and she was advised as under :

    “If you want insurance from us, come with clean hands by giving correct age proof, previous medical history/disease, if any, to enable us to process your proposal for quoting correct rate and also short premium from the previous policies.”

    9.

    It is denied that the replying opposite parties separated the policies of the complainant with any ulterior motive, as alleged. It is further replied that the complainant got a fresh policy issued by filling a fresh proposal form in order to conceal her previous ailments and claim under the previous policies. The fresh policy has not been issued in continuation of the earlier joint policies. However, it is admitted that under the current policy, the claim of the amount of Rs. 27,042/- has been allowed to the complainant. The said claim was made on 13.10.2008 and was paid on 15.1.2009. It is admitted that the policy was cancelled vide letter dated 16.1.2009 because of misrepresentation/non-disclosure of material facts. The complainant never approached the opposite parties for issuance of fresh policy after giving correct particulars, as requested vide letter dated 17.2.2009.
    10.

    In order to prove the case, the complainant tendered in evidence her affidavit – Ex. C-1, copy of passport of complainant – Mark C-2 (3 sheets), copy of statement of account – Mark C-3 (2 sheets), policy of insurance/cover notes – Ex. C-5 to Ex. C-7, I-Card of Voter – Mark C-8, postal receipt – Ex. C-9, letter dated 28.1.2009 – Ex. C-10, letter dated 16.1.2009 – Ex. C-11, letter dated 27.1.2009 – Ex. C-12, receipts of post – Ex. C-13 and Ex. C-14, letters dated 7.2.2009 – Mark C-15, Mark C-16, letter dated 17.4.2008 – Ex. C-17, letter dated 17.2.2009 – Ex. C-18, policy of insurance – Ex. C-19, other policy – Ex. C-20, letter dated 16.4.2008 – Ex. C-21 and closed the evidence.
    11.

    In rebuttal, the opposite parties tendered in evidence affidavit of Sh. S.K. Aggarwal – Ex. OP-1, Proposal Form – Mark OP-2, letter dated 17.2.2009 – Mark OP-3, letter by the complainant – Mark OP-4, letter dated 27.1.2009 – Mark OP-5, letter dated 16.1.2009 – Mark OP-6, investigation report – Mark OP-7, Policy conditions – Mark OP-8 and closed the evidence on behalf of the opposite parties.
    12.

    The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
    13.

    The complainant has filed the present complaint with the prayer that the opposite parties may be directed to continue the policy for the year 2008-09. Besides this, there is a prayer for damages and litigation costs.
    14.

    The opposite parties have raised the plea of concealment of material facts and misrepresentation, as the complainant has admitted her age as 67 years in her letter dated 28.1.2009 – Ex. C-10. The complainant had given monthly income in the Proposal Form as Rs. 10,000/-, whereas, in Para No. 1 of the complaint, the complainant has alleged that she has no source of income. The complainant did not disclose about the earlier policies and the claim received under thereunder. The complainant has also not stated in the Proposal Form – Mark OP-2 with regard to the heart attack as well as diabetes in December, 2007.
    15.

    The opposite parties had admitted that the complainant was one of the policy holder in the policies issued in the name of Yogesh Tiwari. It is also admitted that the complainant was paid a claim of Rs. 27,042/- under the said policy.
    16.

    The learned counsel for the opposite parties argued that on 12.9.2008, the complainant got a fresh policy issued in her name by concealing the material facts regarding the previous policies and her health, and also with regard to heart attack and diabetes in December, 2007, as such the insurance policy was cancelled on account of non-disclosure of material facts and misrepresentations. It was argued that the letter dated 7.2.2009 – Mark C-15 was written to the complainant, wherein reasons for cancellation of the policy were given and she was advised that she may get fresh policy issued after disclosing all the facts.
    17.

    It was further argued that the complainant has denied vide column No. 10 of the Proposal Form – Ex. OP-2 regarding her insurance under any prior policy. Qua Mark OP-7, Dr. V.P. Sharma, has certified that the complainant suffered heart attach in December, 2007 and he was also suffering from diabetes in December, 2007. It was further argued that the complainant has admitted vide para No. 4 of the complaint that she had received the claim under the earlier policy, consequently, vide letter dated 16.1.2009 – Mark OP-6, the policy was cancelled with effect from 22.1.2009. It was submitted that the complainant wrote a letter dated 28.1.2009, wherein she has mentioned her age to be 67 years and made a request for the reasons for cancellation of the insurance policy, which was furnished vide letter dated 17.2.2009 – Mark OP-3.
    18.

    The terms and conditions of the insurance policy had been produced on record as Ex. OP-8. Under the terms of the insurance policy, the insurance company had rightly cancelled the policy and similar right has been given to the insured also. The policy obtained by concealment of material facts is void and can be cancelled at any time.
    19.

    Admittedly, the complainant has prayed that the opposite parties may be directed to continue the policy for the year 2008-2009 and besides this, has prayed for compensation and litigation costs.
    20.

    The present policy – Ex.C-7 was cancelled on 22.1.2009. The said policy commenced on 14.9.2008 and was to be continue till 13.9.2009. Since the policy has been cancelled on 22.1.2009, therefore, the complainant is entitled for the premium amount from 22.1.2009 to 13.9.2009 alongwith interest. Admittedly, the said policy was to continue till 13.9.2009, therefore, no fruitful purpose will be served,if direction to the opposite parties is given to continue the said policy till 13.9.2009, as the order is being pronounced on 1.9.2009.
    21.

    The complainant has paid Rs. 3,812/- qua Ex. C-7 from 14.9.2008 to 13.9.2009, therefore, she is entitled to premium amount from 22.1.2009 to 13.9.2009. Since the opposite parties have not refunded the premium from 22.1.2009 to 13.9.2009, therefore, it amounts to deficiency in service, consequently the complaint is allowed with the direction to the opposite parties to pay the premium amount from 22.1.2009 to 13.9.2009 with interest @ 9% per annum from the date of filing of the complaint i.e., 28.4.2009 till realization. Litigation expenses are assessed at Rs. 1,000/- to be paid by the opposite parties to the complainant within one month from the date of receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Jagdish Lal Bhatla s/o Sh. Raja Ram r/o Model Colony, Banga Tehsil and Distt. SBS Nagar. ….Complainant.

    Versus



    1. United India Insurance Company Limited, Banga Road, Nawanshahr Tehsil & Distt. SBS Nagar.

    2. Heritage Health Services Pvt. Ltd. 1102 Raheja Chambers Free Press, Journal, Nariman Point, Mumbai-400021.

    ….Respondents


    O R D E R

    Present complaint has been filed by the complainant Jagdish Lal Bhatla U/s 12 of the Consumer Protection Act (hereinafter referred as the Act) against United India Insurance Company Limited, Banga Road, Nawanshahr Tehsil & Distt. SBS Nagar. Admitted facts of the case are that the complainant had obtained overseas Medical Claim Insurance Policy No.110502/46/05/08027 Valid from20/07/2005 to 16/01/2006 from Op no.1 the same was registered with Op no.2. It is alleged that while in Australia, the complainant suffered a heart attack on 17-09-2005 and was treated for the said ailment in Australia. On his return from Australia he submitted his claim for Rs 16 lac as medical expenses to Op No.1 and the same was forwarded to the OP No.2; that all the required documents and information were sent to Op No.2 from time to time but to his surprise the Op no.2 repudiated his claim by a letter dated 28-08-2007 on flimsy and untenable grounds like that the complainant had suppressed the fact of pre-existing diease at the time of obtaining the insurance policy.


    It has been alleged that the OP No.1 & 2 have taken an evasive ground to discharge their liability. The complainant has alleged that he has been made to suffer unwarranted and uncalled for harassment from the Ops. Hence it is prayed to direct the Ops not only to pay the actual medical expenses i.e Rs.16 lacs (Sixteen Lacs) incurred in the treatment of the complainant but also to pay Rs.1 lac as compensation; both along with the interest @ 2 percent PA from the date of submission of the claim till its payment.



    2. In response to the notice the ld counsel for the Op Sh. P.K. Dhir, advocate, in the written statement contended that the complainant has not come to the Forum with clean hands and has suppressed the true and material facts from the Forum as he has not disclosed the pre-existing diease at the time of the obtaining the policy. The learned counsel has also taken a preliminary objection that the complaint is not within time. On merits the learned counsel of the Ops reiterated his stand that the complainant has violated the terms and conditions of the insurance policy i.e. as per the general condition of the policy 10 (C) pre-existing diease “any sickness for which the ensured person has sought any medical advice or has taken medical treatment in the preceding 12 months prior to be commencement of travel”. The complainant has breached this condition by hiding his pre-existing diease which is evident from doctor's remarks in the Saint Vincent's Hospital in Australia wherein it is mentioned "that the complainant was 65 years old gentlemen, admitted for cardiac catheterization; and he has a history of non insulin requiring diabetes and a six month history of extertional chest of discomfort breathlessness.


    His recent stress was positive with infer oposterior wall ischemka; that the complainant has several proximal 3 vessal coronary artery disease with well preserved left ventricular systolic function and he is suffering of left main conronary artery." Therefore, it has been contended that the complainant obtained O.M.C. insurance policy on 20-07-2009 and suffered heart attack on 17-09-2005 that he did not disclose the ops pre-existing disease of heart attack and diabetes as required under the policy conditions. The Ops have further contended that the complainant is not entitled for any claim or any interest due to violation terms and conditions of the policy in question, therefore prayed to dismiss the complaint with costs etc.

    3. To prove his allegations Sh.J.D. Jain, advocate, counsel for the complainant tendered in his evidence affidavit of the complainant Ex CA, along with documents Ex C1 to Ex C42.

    4. To rebut the complainant’s evidence Sh.P.K. Dhir, advocate, counsel for the OPs tendered his evidence Ex R1 affidavit of Sh.T.N. Puri Branch Manager UIIC, Ex R-2 Letter of Dr. Vijay Solanki, Ex R-3 letter of Heritage Health Service, Ex R-4 Treatment Record, Ex R-5 report of Dr. Ashok Kunnure, Ex R-6 Insurance Policy, Ex R-7 is Insurance Cover Note, Ex R-8 Proposal Form, Ex R-9 report of Dr. Phillip Spratt, Ex R-10 Progress Notes Report and closed the evidence.



    5. We have heard the arguments by both the Learned Counsels, for the complainant, Sh. J.D. Jain, advocate; and Sh. P.K. Dhir, advocate counsel for the Ops & closely considered the case record.

    6. The ld counsel for the Ops Sh.P.K. Dhir Advocate argued that claim has been rightly repudiated as the complainant has concealed the material facts from the Op No. 1 at the time of the Insurance as he did not disclose pre-existing heart diease at the time of obtaining policy; To prove his stand, Ld counsel for the Ops has also drawn our attention to a piece of evidence Ex.R-2 i.e. which is letter from Professor David Muller, Director Cardiac Cathetersation Laboratories wherein the Doctor has specifically mentioned “that....... for referring 65 years old gentleman for cardiac a history........"etc.


    They have also relied upon Ex.R-4 wherein it has been specifically pointed out in the column of ‘chest pain or enzyna’ positive and diabetes also as ‘YES’ positive. Besides in this respect our attention has been drawn to certain case laws like Manju Bala Vs Branch Manager, Life Insurance Corporation of India & Ors- 43,2009 (1) Diwan Surender Lal VS Oriental Insurance Company Ltd & Anr. CPC, 242, 2009 (1) CPC, LIC Vs. Sharda Devi 527 2009 (1) CPC, Kapil Rai Singhani Vs Life Insurance Corporation of India 735 2009 (1) CPC etc wherein the repudiation claim of the insurance companies have been upheld due to suppression of material facts from the insurance company at the time of the insurance..

    On the other hand the ld counsel for the complaint Sh.J.D. Jain vehemently argued that the Ops have failed to produce any cogent evidence to prove the pre-existing decease.


    Regarding Ops' reliance on Ex.R-4, it has pin pointed on this piece of evidence in the column of "chest pain, angina" and ‘diabetes how its controlled’ and has alleged that the Ops have intentionally tempered with this document to prove their stand; to support this allegation our attention has been drawn towards Ex.R-8 the proposal form for Overseas Medical Policy-B, where in asserting that had the complaint been suffering from any pre-existing disease the same could easily had been deducted by various tests; and further that their own contention of pre-existing disease stands falsified by this very piece of evidence i.e. Ex.R-8 which is statement by the medical/specialist expert of the Op Company Dr.D.K. Sood, where in no negative remarks had been noted by specialist doctors

    7. Admittedly the complainant obtained overseas medi-claim insurance policy No. 110502/46/05/08027 valid from 20/07/2005 to 16/01/2006. The policy was issued by OP 1 & registered by OP 2; that the complainant suffered a heart attack on 17/09/2005 & was treated for this ailment in Australia. On his return supplied all the documents required along with his claim form to the Insurance Company-the OP. Nos. 1&2. However the OP. No. 2 vide letter dated 28/08/2007 Ex.R3 repudiated the said claim on the basis of the specific exclusion clause of the policy, “all medical expenses incurred directly due to past history aliments……..”etc. Perusal of most significant piece of evidence on record Ex R- 4 for reveals the medical history--- all columns marked correct/ticks--- with little tempering of two columns- ‘chest pain/enigma’—originally marked tick i.e.



    later on attempted to efface the under column ‘no’ and marked tick under ‘yes’; similar attempt has been made in ''diabetes & how it is controlled" column of Ex.R-4. It is alleged this temperance of this document could be an after thought exercise, on seeing the Ex. R2 letter of Prof. David Muller directed to Dr. Vijay Solanki ………. Dated 31.10.2005 where in the Dr. David Muller has remarked, "He has a history of non insulin requiring diabetes.........." Appreciating learned counsel for the complainant's reliance on case law cited as 2009 (1) (PU-16) NC we are also of the view that just a doctor’s letter to another in Australia without a supporting affidavit of a Prof. David Muller in Australia is not sufficient to prove that the complainant had hidden his pre-existing disease. Moreover Ops Ex.R8 the proposal form for Overseas Medi-claim Policy Clause-B rather strengthens complainant's arguments that had he been suffering from any pre-existing diease that could surely be judged from the blood tests or other diagnosis undertaken by the DR. K.Sood an expert Dr. very much on the penal of the doctors of the Ops. Relevant column of this piece of evidence are reproduced as under: -

    11. Medical history

    (A) TO BE COMPLETED BY THE PROPOSER

    PLEASE ANSWER THE FOLLOWING QUESTIONS WITH ‘YES’ OR ‘NO’ (A DASH IS NOT SUFFICIENT) AND GIVE FULL DETAILS:-

    1. Are you in good health and free from

    Physical and mental disease or infirmity _________Yes___________

    2. Have you ever suffered from any illness or

    Disease upto the date of making this proposal ______No___________

    3. Do you have any physical defect or deformity ______No__________

    4. Have you ever been admitted to any hospital

    Nursing home/clinic for treatment or observation ____No__________

    5. Have you suffered from any illness/disease

    Or had an accident in the 12 months preceding

    the first day of insurance. _________No_________

    6. If the answer is ‘yes’ to any of the foregoing

    questions please give full details as under: _______NA____________

    Nature of illness/disease/injury & treatment received


    Date on which first treatment taken


    First treatment completed/is continuing


    Name of attending medical practitioner/ Surgeon with his address & Tel. Nos.



    N.A.






    (B) Clauses 1.2 3 & 4 supposed to be completed by the expert doctor& final observation ‘yes fit’; duly signed by the said doctor, are all sufficient to enable us to accept complaint's contentions.

    In the light of the record on file we observe that a simple letter by one treating doctor to another in the absence of that doctor’s affidavit fail to prove that the complainant had taken the policy by with holding/by misrepresenting the material fact of pre-existing disease in the proposal form. Moreover no importance can be given to the policy condition 10 (c) i.e. exclusive clause as the Ops have failed to produce any documents indicating hospitalization or outdoor treatment for any disease like angina or diabetes prior to the commencement of the policy dated 20/07/2005 our view in supported by the observations by the Hon’ble National Commission in Praveen Dhamani VS Oriental Insurance Co. Ltd IV (2006) CPJ 189 (NC) " The policy which states that it is not material whether the insured had knowledge of the disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the insurance Company to disown the liability.


    If this interpretation is upheld, the insurance Company is not liable to pay any claim, whatsoever because every person suffers from symptoms of any disease without the knowledge of the same. this policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bona fide intention of giving. People are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the insurance company relies on their clause 4.1 of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the medi-claim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them.


    Hindsight everyone relies much later that he should have known from some symptom, if this is so every person should do medical studies and further not take any insurance policy”. Even on the face of record, there is no material to show that petitioner had any symptoms like chest pain, etc. prior to 11-08-2000 Since there were no symptoms so the question of linking up the symptoms with a disease does not arise. In any case, it is the contention of the complainant that he was thoroughly checked up by the doctors who were nominated by the Insurance Company and at that time he was found hale and hearty. In such set of circumstances, it would be difficult to arrive at the conclusion that the insured had suppressed the preexisting diease. The ratio of the above case is generally applicable to the case in hand.

    We are of the considered opinion that heart diease could not be diagnosed unless necessary test like E.C.G-Echo –Dopler- angiography etc. are done these tests are made only at the time of pressing need. In the present case there is nothing on record to suggest that prior to the complaint’s admission in St. Vensent clinic on 24.10.2005 as per Ex. R-10 where he was diagnosed "Coronary artery disease" Therefore the sudden occurrence of engyna cannot be ruled out. Hence we fail to appreciate OP’s reliance on various case laws mentioned in in para no.6 of this order: the ratio of these citations is not applicable to the case in hand.

    8. In the light of the above discussion we are of the view that in absence of solid evidence that the complainant had pre-existing diease the OP’s repudiation of the complainant's claim for medical treatment is un justified. We are therefore constrained to allow the complaint with direction to the Op No.1 The Insurance Company Limited to pay the complainant the medical expenses actually incurred for his treatment in Australia to the tune of Rs.16,18,365/- along with interest @ 9% from the date of submission of the claim to the Ops. However the Ops are at liberty to verify the authenticity of the bills/receipts etc. OPs are further directed to pay Rs/10,000 as compensation for harassment to the complainant.

    9. Parties are left to bear their own costs.

    10 The copy of this order be sent to the parties as per rules.



    11. File be consigned to the record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    T. Neelaknata Rao S/o. T Thavitaiah,

    age 55 years, Occ: Consultant HR & Legal,

    R/o. 1-4-879/58, Bakaram, Gandhi Nagar

    Hyderabad – 500 080. Complainant



    And



    1. M/s United India Insurance Co Ltd.,

    rep by its Manager, 1100, LIC Building,

    Bank Street, Koti, Hyderabad – 500 095



    2. M/s Medseva Health Care Ltd.,

    rep by its Manager, Claims Department,

    #203, 2nd Floor, Diamond Towers,

    Main Guard Road, Secudnerabad – 500 003 Opposite Parties







    This case coming on this day for final hearing before this Forum in the presence of Sri Y. V. Narasimhacharyulu, Counsel for Complainant and Sri S A V Ratnam, advocate, for the Opposite Party No 1 and OP2 set exparte and having stood over till this date for consideration, this Forum pronounced the following:-



    O R D E R









    1. This is a consumer complaint filed under Sec. 12 of Consumer Protection Act, 1986 seeking a direction to the Opposite Parties to pay Rs. 2,43,525/- with interest @ 24% towards the sum assured in 2 policies, pay compensation of Rs. 5,00,000/- for mental agony, hardship and award Rs. 40,000/- towards costs.





    :2:



    2. The complainant’s case in brief is that he has been holding a Group Floater Medi-claim Policy for an assured sum of two lakhs rupees from the Opposite Parties, while he was in service for his family, especially for his wife Mrs. T. Hemavathi (Card No 520 1070 4006182 C). He also took another Medical Policy for an assured sum of Rs. 1.25 lakhs in his wife’s name in the year 1989 (Card No 520 3070 5028530 C).


    His wife was admitted in Global Hospital Hyderabad on 07.11.2005 where doctors advised her emergency surgery. The complainant and his employer wrote to the Opposite Parties on 07.11.2005 informing the facts and requesting them to arrange for cashless admission etc., in Global Hospital. She was again admitted in Global Hospital on 10.11.2005 and underwent surgery for valve replacement on 11.11.2005 and discharged on 18.11.2005, the total expenditure involved being Rs. 2,83,525/-. The original bills along with detailed statement were submitted to the Opposite Parties on 28.11.2005. Though several letters were written to the O Ps, they failed to settle the claim.


    Meanwhile, as the complainant worked in Government owned corporation, he had applied for medical reimbursement to the Director of Medical Education. As original bills were required for the purpose, he requested the Opposite Parties to write to the Director of Medical Education stating that the original bills were with them. But the Opposite Parties did not oblige him and it amounts to deficiency in service. At last they released an amount of Rs. 40,000/- by Cheque, dated 03.08.2006. In spite of several representations, they failed to release the balance amount of Rs. 2,43,525/-.



    3. The Opposite Party No 1 in the counter contended that as per policy conditions, the complainant should have informed the Opposite Parties before the surgery, but he did not adhere to the policy conditions. Further the documents filed by the complainant were not acknowledged by the Opposite Parties. The group policy taken by the complainant covered only Rs. 40,000/- per head until 2004-05 and thereafter on Rs. 2,00,000/- for family vide Floater Policy

    :3

    No 052201/48/04/87/00001668 for the period 27.01.2005 to 26.01.2006. Dr. Gokhale’s note revealed that the wife of the complainant was suffering from shortness of breath and orthpnoea for the past 2 years and diagnosed a suffering from as moderate MS, AS and AR and as the disease was of 2004, the OP insurance company had settled the claim for Rs. 40,000/- as per the policy in 2004-05. As the complainant had another policy covering risk up to Rs. 1,56,250/- and as an amount of Rs. 40,000/- was already paid, an amount of Rs. 1,56,250/- only had to be paid by the insurance company. However the complainant did not file the copies of policies and his complaint is also time barred.



    4. The points that arise for consideration are:



    1. Whether the complaint is time barred?
    2. Whether the complainant is entitled to his claim for the deficiency in service?



    3. To what relief?



    5. The Complainant filed evidence affidavit, written arguments and relied on Exhibits A 1 to A 5. The Opposite Party No 1 filed counter, evidence affidavit and written arguments. Opposite Party No 2 remained exparte. The complainant’s counsel alone advanced oral arguments.



    6. Point No i: As the Opposite Party had issued a Cheque, dated 03.08.2006 for Rs. 40,000/- in favour of the Complainant as part settlement (not to the satisfaction of the complainant), the cause of action has been continuing and the complaint having been instituted on 26.07.2008 is not time barred.



    7. Point No ii: It is an admitted fact that the complainant, a retired employee had taken two medical policies which covered his wife. The point of difference is regarding the sum assured by the Floater Policy No 052201/48/04/87/00001668 for the relevant period. The complainant and his employer contended that it was Rs. 2.00 lakhs, whereas, as per the O P No 1 it was Rs. 40,000/- only. Ex. A1 is the Xerox copy of the Insurance card in the name of the Complainant and his wife.

    :4:



    The complainant and his employer informed the Opposite Parties vide their letter, dt. 07.11.2005 (Ex. A-2) about the need for surgery for Smt. T. Hymavathi and requested for arranging cashless admission etc., in Global Hospital. As is evident the Opposite Parties did not reply to this or any other representations. Ex. A-3 is the copy of letter by the complainant, dated 28.11.2005 along with the original bills etc., to the Opposite Parties.


    Ex. A-4 is the copy of letter, dated 16.05.2006 from the Director of Medical Education returning medical bills of the complainant for want of all original bills. It is pertinent to note that the complainant had requested the opposite parties to inform the Director of Medical Education that the original bills etc were with them. But they neither obliged him nor settled his claim. It appears that they had harassed the complainant very much. It goes without saying that it amounts to severe deficiency in service. Further, at no point of time, the Opposite Parties have clarified anything to the complainant or his employer.



    8. Though the Opposite Party in their counter admitted that the amount to be paid by the Insurance Company to the complainant is Rs. 1,56,250/- they expressed their willingness in their evidence affidavit and written arguments to pay an amount of Rs. 1,25,000/- only. We wonder, how did they reduce it to Rs. 1,25,000/-?. But one should not lose sight of the fact that the amount had to be paid at least along with Rs. 40,000/-, which they had paid on 03.08.2006 which was 8 months after submission of the claim. It is needless to say that there is serious deficiency in service on the part of the opposite parties.


    Even accepting the contention of the opposite parties that the amount to be paid to the complainant is only Rs. 1,56,250/- means that they had withheld the amount payable to the complainant for more than 3½ years. One can imagine the difficulties faced by a retired employee in procuring so much of amount and the interest payable on private loans. So, the OPs have to pay the said amount with interest. Justice demands that the complainant is also entitled for compensation for mental agony and hardship faced by him. We feel it just to award compensation of Rs. 25,000/-

    :5:



    9. Point No. III: In the result, the complaint is allowed. The Opposite parties are directed to pay an amount of Rs. 1,56,250/- with 12% interest per annum from 03.08.2006 till the date of realization, Rs. 25,000/- towards compensation and Rs. 2,000/- towards costs within 30 days to the complainant.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    1. K.Ananda Rao,

    2. K.Shankar Rao

    3. J.kanakaratnam

    4. Muthamala Sanjeeva Rao

    5. Varaparra Samiyelu

    6. Jangam Prasada rao

    7. Velpula Kanakarathan

    8. Varlaparia Joji,

    9. Sarikonda Satyanarayana,

    10. Sangm Sesi



    All are resident of Mittapalli village, Thallada mandal, Khammam

    Dsitrict, rep. By their G.P.A. holder by name Armidipuram Ranga

    Rao, s/o.Ramaiah, agea; 54 years, occu: Photographer, r/o.Tiruvuru

    village, Tiruvuru mandal, Khammam District.

    …Complainant

    and



    The Branch Manager, United India Insurance Company, Direct

    Agents Branch, O/o.3-5-874 to 875, 5th floor, Basheerabagh,

    Hyderabad

    …Opposite party.






    O R D ER





    1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The brief facts of the complaint are that the complainant No.11 is the G.P.A. holder and filed the complaint on behalf of complainant Nos.1 to 10. The complainant had joined in the policy introduced by opposite party namely Nadalahari policy and taken ten D.Ds. each for Rs.65/- in the name of opposite party on 3-11-2005 drawn on Andhra Bank, Thallada branch and the sent the same by way of courier and were issued by opposite party on 3-11-2005. Even after receipt of D.Ds., the opposite party did not send policies in the name of complainants.


    The G.P.A. holder pursued the matter and addressed letters, 3-11-2006, 3-11-2007, 3-8-2007, 20-8-2007, 29-9-2007, 3-10-2007, 17-12-2007 and lastly on 10-11-2007 the complainant got issued a legal notice, at last the opposite party has sent lapsed policies on 1-4-2008 stating that the policies were valid from 11-11-2005 to 10-11-2006, due to which the complainant suffered a lot of mental agony. The act on the part of opposite party amounts to deficiency in service, due to which the complainants suffered mental tensions. Hence, the complainant claiming an amount of Rs.2,00,000/- towards pain and suffering and mental agony.

    2. On receipt of the notice, the opposite party filed counter and admitted that the complainant joined in the policy of opposite party and also admitted the receipt of demand drafts on 3-11-2005, which were sent by the courier, but denied that the complainant suffered mental agony because of non issuance of policies and insurance certificate. It is further contended that the opposite party has not delayed in submitting the information. Since there is no deficiency in service on the part of opposite party, there is no liability as claimed by the complainant.

    3. On behalf of the complainant, the following documents have been filed and marked as Exhibits

    Ex.A.1 - copy of insurance policy, Ex.A.2 - Letter addressed by the opposite party to the complainant, dt.1-4-2008, Ex.A.3 - Letter, dt.2-11-2006 addressed by the opposite party to the complainant Ex.A.4 -Letter, dt.3-8-2007 addressed by the complainant to the opposite party Ex.A.5- Letter, dt.7-8-2007 addressed by the opposite party to the complainant. Ex.A.6 - Letter, dt.20-8-2007 addressed by the complainant to the opposite party along with postal receipt Ex.A.7- Complaint-Acknowledgment,dt.17-9-2007 Ex.A.8 - Complaint - Settled reply, dt.19-9-2007 Ex.A.9 - Letter, dt.29-9-2007 addressed by the complainant to the opposite party Ex.A.10 - Legal notice along with acknowledgment, dt.10-11-2007Ex.A.11 - Letter, dt.20-11-2007 addressed by the opposite party to the complainant. Ex.A.12 - Letter. D,t17-12-2007 addressed by the complainant to the opposite party. Ex.A.13 - courier receipts Ex.A.14 - Acknowledgment along with postal receipt. Ex.A.15 - Letter, dt.3-10-2007 addressed by the complainant to the opposite party.

    4. On behalf of the opposite party, policy is marked as Ex.B.1, certificates issued by opposite party in favour of the complainants is marked as Ex.B.2.

    5. Both parties filed their written arguments. Heard both sides. Perused the oral and documentary evidence, the point that arose for consideration is,

    Whether the complainants are entitled to compensation

    for undergoing mental agony and pain?



    Point:

    6. So far as the taking of the policy is concerned, it is admitted by the opposite party and it is also not in dispute that the opposite party received Demand drafts sent by the complainant. The only question in dispute is, whether the complainants have pursued the matter with the opposite party for the issuance of the policy. To substantiate the contention, the complainants have referred to the copies of the letters, but the same have not been filed, but the complainants referred Ex.A.3, a letter, which is addressed by the opposite party to the complainant informing that the policy of the complainant is being issued for the period from 11-11-2005 to 10-11-2006 along with copies of insurance certificates.


    As per the contents of this letter, the policy is said to have issued to the complainants along with copies of insurance certificates, on 1-4-2008, whereas the policy is for a period from 11-11-2005 to 10-11-2006. As on the date of issuance of Ex.A.3, the validity of the insurance policy became lapse. The contents of Ex.A.3 substantially go to establish that there is delay on the part of opposite party in issuing the policy and certificates to the complainant. This delay on the part of opposite party has not been properly explained. This act on the part of opposite party amounts to deficiency in service. Taking into consideration of the above facts and circumstances, the complaint is to be allowed.

    7. In the result, the complaint is allowed, directing the opposite party to pay an amount of Rs.10,000/- (Rupees ten thousand only) (Rupees one thousand each) to the complainants No.1 to 10 as compensation towards mental agony and sufferance, within a period of one month from the date of this order. Further the opposite parties are directed to pay an amount of Rs.1,000/- towards costs of the litigation.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    G. Dattatrayulu,

    S/o Venkata Subbaiah,

    R/o Ward No.29, beside church,

    Bapatla, Guntur district.

    2. G. Subbayamma,

    W/o Dattatrayulu,

    R/o Ward No.29, beside church,

    Bapatla, Guntur district. …Complainants

    and

    1. The Divisional Engineer,

    M/s United India Insurance Company Limited,

    Divisional Office, IV 2nd floor,

    Posnett Bhavan, Tilak Road,

    Hyderabad-1.

    2. The Branch Manager,

    Andhra Bank, Bapatla,

    Guntur district. …Opposite parties






    O R D E R


    This complaint is filed U/S 12 of the Consumer Protection Act, 1986 by the complainant’s seeking directions on the opposite parties for payment of Rs.32,755.- towards mediclaim, Rs.50,000/- towards mental agony, pain and suffering and Rs.10,000/- towards costs of litigation and to pass such other order as deemed fit and proper.

    The brief facts of the case are that,

    The 1st complainant is having an account in Andhra Bank, Bapatla branch, Guntur. He has insured under Group Mediclaim Insurance having Andhra Bank account vide policy No.050400/48/04/003d50 F.No.371200 and the same is in force till 10-06-07. The policy was issued by the opposite parties. It covers both the complainants and their son. Further it is submitted that the complainants have taken treatment at M/s.Lalitha Super Speciality Hospital, Guntur during the period from 11-07-06 to 17-07-06 and the treatment charges were billed to a tune of Rs.32,755/-. The hospital authorities have sent the bills to the office of the 1st opposite party for payment. Subsequently the complainants came to know that the amount was not paid by the opposite parties to the hospital authorities so far. As the opposite parties have failed to pay the same, the hospital authorities are pressurizing the complainants to pay the same.


    Prior to this treatment the District Forum, Guntur also instructed the 1st opposite party vide its Judgement dated 27-12-05 to pay the bills on receipt of the same, but the 1st opposite party failed to pay the same. The complainant also issued notice to the opposite party demanding the payment but they failed to do so. The 1st opposite party acted negligently and there is deficiency of service. Finally the complainants have got issued legal notice 17-11-06 through their counsel demanding for payment, but the same is not complied. Because of this attitude and behaviour of the opposite parties, the complainants have suffered mentally and financially. Hence, the complaint.

    The 1st opposite party filed its version denying the allegations made in the complaint in the formal way. It is stated that there is no cause of action in filing the present case as no claim was lodged with them by the complainant for the treatment taken from 11-7-06 to 17-07-06 as alleged, the complainant is put to strict proof of the same. The 2nd opposite party is also not informed about the alleged claim by the complainant. Further, it is submitted that the complainant previously filed a complaint before the District Consumer Forum, Guntur in CC 174/05 against the denial of authorization for cashless service to him. The same was dismissed by the Forum vide its order date 27-12-05. Therefore, the allegation that this Forum directed this opposite party to pay treatment charges on receipt of bills from the hospital is not correct. As there is no claim, there is no deficiency of service. Therefore, it is prayed to dismiss the complaint.

    The 2nd opposite party filed its version denying the allegations made in the complaint. According to them they have marketed a policy of United India Insurance and its full details and eligibility of claim etc., and the complainants are well aware about the same. Deviating the said conditions, the complainant is not entitled to claim for any amount. The complaint is silent about the role of this opposite party. The complainant ought not to have impleaded this opposite party as claim lie against the 1st opposite party alone. This opposite party is not aware of the earlier Judgement of the Forum dated 24-12-05. Therefore it is prayed to dismiss the complaint.

    Both parties have filed their affidavits apart from marking documents. On behalf of complainant Exs.A-1 to A-10 are marked. On behalf of 1st opposite party Exs.B-1 to B-3 are marked.

    Now the points for determination are that,

    1. Whether there exists any deficiency of service on the part of the 1st opposite party as alleged by the complainants?

    2. Whether the complainants are entitled for relief sought for?

    3. To what extent?



    POINT No.1:- On perusal of the pleadings and evidence on record, there appears absolutely no dispute about the complainants covering under Group Mediclaim Insurance known as AB Arogyadaan by the United India Insurance Company Limited which had tie up with Andhra Bank. As per Ex.A-1 this policy covers the complainants and his family members. The policy is in force upto 10-06-07.


    It is the allegation of the complainants that they have taken treatment at M/s.Lalitha Super Speciality Hospital, Guntur from 11-07-06 to 17-07-06 and incurred an expenditure of Rs.32,755/- towards their treatment and the hospital authorities have submitted the bills to the insurance company and the same has not been cleared yet. As the bills were not cleared the hospital authorities are said to have been demanding for payment. Therefore, it is their contention that earlier they got issued a notice and lastly legal notice on 17-11-06 vide Ex.A-3 for clearing the bills of the hospital. Despite of receipt of the notice by both the opposite parties vide Ex.A-4 acknowledgements the same was not cleared, as such, they have constrained to file this complaint.


    It is also brought to the notice of the Forum that on similar lines for earlier time also the opposite parties have not cleared the bills of the hospital as such they resorted in filing CC 174/05 before this Forum, wherein, suitable directions were issued to the opposite parties for payment of bills vide Ex.A-6. On 16-09-07 also the complainants said to have addressed a letter to the Divisional Manager of 1st opposite party, Hyderabad demanding payment of bills for the treatment taken by the complainants, of course, this letter is subsequent to filing of this complaint. The complainants have filed the bills issued by M/s.Lalitha Super Speciality Hospital, Guntur vide Ex.A-2 and other bills on record. As per these bills the 1st complainant took taken treatment in the said hospital from 11-7-06 to 16-7-06 whereas the 2nd complainant from 14-07-06 to 17-07-06.


    The learned counsel for the complainant submits that the bills pertaining to their treatment were directly sent by M/s.Lalitha Super Speciality Hospital, Guntur to the insurance company and that they have misplaced the record showing proof of submitting the same. But the complainants have very much brought to the notice of opposite parties, but still they have not cleared the same. The complainants have also relied upon courier service vide Ex.A-8 and Ex.A-9. This shows that he has dispatched the parcel on 16-09-07 and the same was received at Hyderabad on 17-9-07 but it does not bear the signature of the insurance company as it is a courier receipt.

    The version put forth by the insurance company is that they have not received any claim as such the complaint is premature and there is no deficiency of service on their part. The learned counsel for 1st opposite party had relied upon Ex.B-1 which is a copy of certificate of insurance pertaining to the period from 7-09-04 to 8-6-05, this appears to be a previous policy. It appears that this policy pertains to previous years and the same is being continued on payment of premium from year to year. Ex.B-2 is the repudiation letter dated 03-01-07 by Insurance company addressed to the counsel for the complainants stating that they have received legal notice regarding the complaint made before the Consumer Forum against denial of cashless service. The letter also further reads that the complainants have filed CC 174/05 on the file of this Forum for denial of authorization for cashless service to him.


    But it is not true that Consumer Forum has directed the insurance company for making payment and the same was dismissed vide Judgement dated 27-12-05. It is also stated that they have not received any claim from the complainants since then and no claim is pending with them for settlement. This letter shows that the 1st opposite party mentioned all about earlier claim and the dispute raised before the Forum vide CC 174/05 and non receipt of further claim in pursuance of the said judgement whereas Ex.B-3 letter dated 20-07-07 addressed from their head office to branch office at Guntur with receipt to the aforesaid policy, who state that the head office has received the following

    1. certificate of insurance,

    2. letter from HHPL stating that in CD 174/05, the case was dismissed on 27-12-05,

    3. Advocate letter copy,

    4. Speaking note giving full particulars of claim details. Further FHPL have stated that the opposite party has not submitted any claim papers to them for processing. Basing on the above points, they may represent the case.

    This letter also clarifies the position about the earlier dispute. From the above referred documents on record there is no repudiation letter about the present claim from the opposite parties. Of course, they made it clear in their version that they have not received any claim for payment of bills either from the M/s.Lalitha Super Speciality Hospital, Guntur or from the complainants pertaining to the present treatment. Therefore, the learned counsel for the 1st opposite party argues that the complaint is premature and no deficiency of service on their part.

    In this regard he also rely upon the following decisions,

    1. I (1995) CPJ 61 (NC), Chief General Manager, MTNL vs. Suresh Bhargav, the National Commission held that a well reading of the definition of the term ‘deficiency’ in the Consumer Protection Act would show deficiency in service must involve a breach of legal or contractual obligation or deficiency in service which has been undertaken to be performed otherwise.

    2. (1999) 6 SC 451, Oriental Insurance Company Limited vs. Sony Cheriyan, the Apex Court held that the insurance policy in between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to

    determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy”.



    The aforesaid decisions reflect on the position that the terms of contract got to be observed strictly for assessing as to deficiency of service or any shortcoming on their part in implementing the terms and conditions of the policy. But the present dispute strictly does not rest upon the terms and conditions of the policy nor challenging them on any deviations. As the claim admittedly arose under the policy, the complainants want the settlement of the same. Whereas the contention of the insurance company is that they have not received any such claim either from the hospital or from the complainants.


    Therefore, we are of the considered view that as there is no satisfactory evidence to prove that the claim has been received by the Insurance company, we hold that the same is premature one and deficiency of service does not arise. What we further observe is that on earlier occasion also similar thing has happened in respect of the treatment obtained by these complainants and settlement of mediclaim. This is 2nd occasion again, it is very much painful that the claims of the insured remained unsettled for pretty long time on one or other grounds. Therefore, the hospital authorities and the insured be cautious enough to send their claim forms along with the bills while following the procedure under proper acknowledgment.

    Accordingly, we direct the complainants herein and the hospital authorities to submit the claim form and relevant bills pertaining to the period under treatment to the 1st opposite party and upon receipt of the same, the same shall be settled as per the terms and conditions of the policy.

    In the result, the complaint is disposed of with the following directions:

    1. The complainants herein and M/s Lalitha Super Speciality Hospital, Guntur shall submit the claim forms and the bills pertaining to the treatment of the complainants during relevant period to the 1st opposite party as per the procedure and under proper acknowledgment within a period of 15 days.
    2. On receipt of such claim and bills the 1st opposite party shall make endeavor to process the same in bonafidee manner and settle the claim as per terms and conditions without causing further hindrance in the matter.
    3. Each party shall bear their own costs.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Sri Hari Das Roy,

    Hemanta Kumar Roy,

    Birnagar, P.S. & P.S. – Raiganj,

    District – Uttar Dinajpur, West Bengal. Complainant.



    versus



    1) United India Insurance Company Limited,

    Represented by the Branch Manager having its

    Branch Office at M. G. Road,

    Ukilpara, Raiganj, Uttar Dinajpur.



    2) The Branch Manager,

    United India Insurance Company Limited.

    having its Branch Office at M. G. Road,

    Ukilpara, Raiganj, Uttar Dinajpur. Opposite Parties.





    Judgment






    This is a complaint Under Section 12 of the Consumer Protection Act, 1986, filed by the Complainant, Sri Hari Das Roy, against the Insurer/ United India Insurance Company Limited asking for an direction to the O.P./ Insurer to pay an award of Rs.16,921.16 only together with interest at the rate of 15 percent per annum and also for direction to the O.P./ Insurer to pay a sum of Rs.50,000.00 as compensation for mental pain, agony, stress and continuous harassment together with Rs.5,000.00 as litigation cost.



    A short description of the case of the Complainant is necessarily be given for appreciation of the case. Complainant had under gone a ‘Cataract Operation’ at BKG Eye Institute, Gour Road, Mukdumpur, Malda on 16th June, 2007, where he was admitted on the 15th June, 2007, one day prior to his cataract operation. Prior to admission, the Complainant gave intimation to the O.P./ Insurer on the 13th June of 2007, giving the place of his cataract operation, date of admission and date of operation.


    In his operation, Complaint bore the total cost of Rs.16,921.16 and with all treatment papers and bills he submitted his claim for discharge on 07.08.2007 with the O.P./ Insurer. But on 05.10.2007 Complainant received a letter from O.P./ Insurer addressing to the concerned nursing home asking to inform the bed capacity of it. A copy of the said letter was also sent to the Complainant. Finally, on 23.10.2007 Complainant received a letter from O.P./ Insurance Company rejecting his claim on the ground of violation of policy condition.


    The ground for rejection was that the nursing home in question has five-bed capacity, but in order to have the claim discharged, admission to a ten-bed nursing home in ‘C’ class town is a pre-condition. But, Complainant’s claim is that previously, he was admitted to the same nursing home in 2006 for operation of one of his eyes (left eye). The cost of the said operation was demanded from the O.P./ Insurer to pay, which ultimately disbursed the claim of the Complainant, which was Rs.15,700.00, so the present complaint.



    The O.P./ Insurer contested the case by filing one written version. In para-7 of the W.V., it has admitted the claim amount of Rs.16,921.16 of the Complainant almost entirely. Its specific case is that Complainant is entitled to get Rs.16,221.16 and not Rs.16,921.16. So upon the foregoing case of the parties we do find that O.P. is ready to pay the maximum portion of the amount, which the Complainant has claim in his complaint.



    Let us now see, whether the O.P./ Insurer can be justified in its proposal to the disbursement of Rs.16,221.16 out of the total claim of Rs.16,921.16.



    Decisions with reasons:



    To prove his case Complainant has tendered his evidence in affidavit. That’s apart, he has also proved certain documents, which are



    Insurance Certificate bearing No. 031403/48/06 /20/00001087 (Exbt.-1).



    Intimation letter dated 13.06.2007 (Exbt.-2).



    Letter dated 05.10.2007 issued by Branch Manager, United India Insurance Company Limited, addressed to the Complainant (Exbt.-3).



    Claim Form dated 07.08.2007 submitted by the Complainant to the Branch Manager, United India Insurance Company Limited, Raiganj Branch (Exbt.-4).



    All Medical Bills, Discharge Certificate and Relevant Documents (Exbt.-5 series).



    Letter dated 23.10.2007 issued by Branch Manager, United India Insurance Company Limited (Exbt.-6).



    One Lawyer’s Notice dated 19.12.2007 (Exbt.-7).



    One reply letter against above notice dated 20.01.08 and one envelop (both page) (Exbt-8).



    The crux of the question is if the Complainant is entitled to claim Rs.16,921.16 from the O.P./ Insurer. It is already noted above the O.P./ Insurer is ready to pay Rs.16,221.16. In course of argument it has been argued by Ld. Lawyer for the O.P. that the Complainant is not entitled to claim disbursement of the cost of lens, the cost of which is Rs.700.00. Ld. Lawyer for the O.P. again argued that as per terms and conditions of the relevant policy scheme, the complainant can not claim disbursement of the price of the spectacles. In support of his argument Ld. Lawyer has filed one Prospectus of Medi-claim Insurance Policy (Individual). He particularly brings our notice to para-4 of the prospectus, where the items under the head ‘exclusions’ contain.


    Here, in item No. 4.6, the cost of spectacles and contact lenses and hearing aids has been kept beyond the purview of disbursement incurred by the insured person. So, this condition containing in the prospectus, specifically prohibits the Complainant to claim the cost of spectacles. So, in our view the Complainant is not entitled to claim the cost of spectacles, which was Rs.700.00. However, he is entitled to claim the remaining amount that is to say Rs.16,221.16 against the O.P./ Insurer.



    The Complainant has further claimed compensation for the mental pain, agony, stress and continuous harassment. Under these head his claim is of Rs.50,000.00. His specific case is that his claim has unduly been rejected by the O.P./ Insurer by giving flimsy reasons, that is why he come before this Forum for the harassment he has suffered in the hand of O.P./ Insurer. We think that there is cogent ground for him for leveling the allegation of harassment against the Complainant. So, under the said heads a sum of Rs.500.00 may be ordered to be paid by the O.P./ Insurer to the Complainant. Beside all these, the Complainant be also entitled to claim Rs.200.00 as litigation cost against the O.P./ Insurer.



    Fees paid are correct.



    Thus the complaint is disposed of finally with the following orders: -



    That the complaint is allowed on contest against the O.P./ United India Insurance Company Limited.



    Complainant is awarded with Rs.16,221.16, along with compensation of Rs.500.00 in respect of his mental pain, agony, stress and continuous harassment and Rs.200.00 as litigation cost.



    The O.P./ Insurance Company is directed to pay the amount totaling of Rs.16,921.16 (rupees sixteen thousand nine hundred twenty one and sixteen paisa) only within one month of this order, failing which the amount shall carry on interest at the rate of 6.5 percent per annum till full realization.



    Let true photo copies of this final order be supplied to the parties free of cost.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Sh. Ganga Dhar son of Sh. Kunj Lal Sharma resident of village and Post Office Naggar, Tehsil and District Kullu, H.P.



    …Complainant





    V/S



    United India Insurance company Ltd through its Branch Manager, Opposite Kala Kendra Dhalpur, Kullu, Tehsil and District Kullu, H.P.

    ..Opposite party.







    ORDER.



    This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The complainant stated that he is owner of the vehicle ( Innova ) bearing registration No. HP-01K-7300 which was insured with the opposite party up to 22-4-2009. The complainant alleged that the said vehicle met with an accident on 2-8-2008 near Gara Maure Swarghat and caused huge loss to the vehicle. The complainant informed the opposite party about the accident and surveyor was appointed by the opposite party to inspect the damaged vehicle .



    The surveyor had inspected the vehicle and at that time he informed the complainant to repair the vehicle from authorized workshop namely M/S Pioneer Toyota EM PEE Motors Ltd Plot No.177-H, Phase 1 Industrial Area Chandigarh. The surveyor had also visited the said workshop and inspected the vehicle at Chandigarh and after repair of the vehicle all the bills were deposited before the opposite party. The complainant averred that he had spent a sum of Rs.1,04,947/- for repairing the vehicle. Thereafter, the complainant lodged his claim vide No. BOK.CST.GS.OD.08 alongwith all the bills and documents of the vehicle including the driving license of the driver with the opposite party.


    The complainant requested the opposite party to settle the claim, but the same was repudiated by the opposite party vide letter dated 31-12-2008 by mentioning that the driving license of the driver was not valid for transport vehicle but the same was in fact valid for MGV . The complainant alleged that the act of the opposite party amounts to deficiency in service. With these allegations, the complainant had sought a direction to the opposite party to pay a sum of Rs.1,04,947/- on account of loss caused to the vehicle due to accident alongwith interest at the rate of 12% per annum ,to pay Rs.75,000/- for harassment , and also to pay Rs.3000/- as cost of proceeding.

    2. The opposite party had filed reply wherein preliminary objection has been raised that there is no deficiency in service on the part of the opposite party and as such the complaint is not maintainable . On merits , the opposite party had admitted that the vehicle in question met with an accident but denied that the vehicle had suffered huge loss. It has also been admitted that the Surveyor was deputed on the information of the complainant to inspect the vehicle subject to terms and conditions of the insurance policy and he has submitted his report which is annexure R-1 by assessing the loss at Rs.69,371/- subject to deposit of salvage, value of which had been assessed at Rs.1500/-.


    The opposite party averred that the vehicle in question is a passenger vehicle as per registration certificate Annexure R-2 and driving license of the driver Ganga Dhar is valid to drive light motor vehicle only as per report annexure R-6 and the driver was not authorised to drive passenger vehicle. The opposite party contended that since the vehicle was being plied in contravention of the Motor vehicles Act and contract of insurance policy, the opposite party is not liable to indemnify the complainant and the claim has been rightly repudiated vide Annexure R-7 .The complaint had been sought to be dismissed.

    3. The complainant had filed rejoinder reiterating the contents of the complainant and controverting those as made in the reply.



    4. We have heard the ld. counsel for the parties and have carefully gone through the record. It has not been disputed that the vehicle in question was insured with it and met with an accident on 2-8-2008. It has also not been disputed that at the time of the accident ,the vehicle was being driven by Sh. Gangadhar . The only ground on which the claim of the complainant was repudiated is that the driver of vehicle was not possessing a valid and effective driving license at the time of the accident to drive the vehicle in question.



    5 Now the question which arises for determination before this Forum is as to whether the driver Sh.Ganga Dhar was not holding a valid and effective driving license at the material time . As per the copy of the registration certificate , the vehicle in question is a light transport vehicle . According to the complainant, the vehicle was being driven by him at the time of the accident and had also filed copy of his own driving license issued by the Registering and Licensing Authority Kullu.


    The opposite party i.e. the insurance company had repudiated the claim of the complainant on the ground that aforesaid driving license possessed by the complainant/ driver Sh.Ganga Dhar was not a valid driving license as he was not authorized to drive transport vehicle. In this respect, the opposite party had relied upon photocopy of verification report of surveyor Sh. Manoj Kumar dated 14-9-2008 Annexure R-5 and photocopy of certificate issued by Registering and Licensing Authority Kullu Annexure R-6. According to Annexure R-5 and Annexure R-6, the driving license No.DL/2160K/1984-85 issued by the Registering and Licensing Authority in favour of Sh.Ganga Dhar was issued on 25-6-1984 for driving light motor vehicle ( non transport )and MGV only .


    However, it cannot be said that the driver was not authorized to drive the vehicle because we have gone through the copy of the driving license No.DL/2160K/1984-85 of Sh.Gangadhar which was issued by Registering and Licensing Authority, Kullu and valid with effect from 25-6-1984 to 20-1-2009 for driving light motor vehicle ( non transport) and was renewed on 21-1-2006 vide No.DL/R/5864/2006 and was valid up to 20-1-2009 to drive transport vehicle as per endorsement made by the Registering and Licensing Authority.


    When this fact was pointed out to the ld. counsel for the opposite party, he could not offer any satisfactory explanation as to how the driving license was invalid when there was an endorsement on the driving license in question to drive transport vehicle. The ld. counsel for the opposite party had relied upon surveyor report and certificate of RLA wherein it has been recorded that aforesaid driving license is valid up to 20-1-2009 for driving light motor vehicle and MGV only .


    However, in our opinion, no credence can be attached to the certificate Annexure R-6, issued by Registering and Licensing Authority in view of endorsement made on driving license authorizing the driver to drive transport vehicle. Moreover, in a letter addressed to Registering and Licensing Authority Kullu by the Director Transport ,Shimla dated 11th February 1999, it has been specifically mentioned that the license in question was renewed for a period of three years and thus it can be deemed that the driving license is valid to drive transport vehicle . The onus was upon the opposite party to establish by proving that the driver was not authorized to drive transport vehicle. However, except photocopy of Surveyor report Annexure R-5 and photocopy of certificate from Registering and Licensing Authority, Kullu Annexure

    R-6 there is no evidence on record to show that the driver was not authorized to drive the transport vehicle. It was incumbent upon the opposite party to have summoned the record from Registering and Licensing Authority Kullu in order to prove that driver Sh.Gangadhar was not authorized to drive transport vehicle. However, no steps have been taken by the opposite party to summon the record from Registering and Licensing Authority. Therefore, in view of the copy of driving license filed by the complainant wherein there is an endorsement in favour of the driver authorizing him to drive transport vehicle valid with effect from 21-1-2006 to 20-1-2009, it can safely be held that driver was authorized to drive the vehicle in question which was a “ light transport vehicle” and the repudiation of the claim by the opposite party definitely amounts to deficiency in service .



    6 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident . The complainant in his complaint had clamed Rs.1,04,947 /- on this count . The complainant had placed on record the invoice of repair which shows that a sum of Rs.1,04,947/- was required for repairing the vehicle in question. On the other hand, the opposite party had placed on record Annexure R-1 the copy of the report of Surveyor Protech Engineers and Loss Assessors which depicts that Rs.69,371/- is the loss assessed subject to deposit of salvage, the value of which has been assessed at Rs.1500/-with respect to the damage caused to the vehicle in question.


    The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor dated 15th August 2008 Annexure R-1 and in view of the same , the complainant is held entitled to a sum of Rs.69.371/- on account of own damage claim of the vehicle in question subject to deposit of salvage , the value of which has been assessed at Rs.1500/-.

    7 The complainant had claimed Rs.75,000 as compensation besides Rs.3,000/- as costs of litigation . As discussed above, since the claim of the complainant had been repudiated illegally by the opposite party and he had suffered harassment Therefore, in such circumstances , an amount of Rs.5,000/- will be sufficient to meet the ends of justice on this score and Rs.2000 /- as costs of litigation.

    8 In the light of above discussion, the complaint is partly allowed and the opposite party is directed to pay Rs.69,371/- to the complainant on deposit of salvage, the value of which has been assessed at Rs.1500/- with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay Rs.5000 /- on account of harassment suffered by him due to deficiency in service and also to pay a sum of Rs.2,000/- as costs of litigation.



    9 Copy of this order be supplied to the parties free of cost as per Rules.



    10 File, after due completion be consigned to the Record Room.

    Announced
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Parshotam Singh son of Chain Singh resident of village Bahga P.O. Garhdiwala District Hoshiarpur.


    Complainant


    vs.



    United India Insurance Company Limited,Jalandhar Road, Hoshiarpur through its Branch Manager.



    Opposite party


    1.

    The complainant namely Parshotam Singh 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 complainant purchased Tata Qualis bearing registration no.PB-07-N-3300 from Gunraj Singh son of Jaswant Singh resident of Afghan Road, Hoshiarpur on 20.9.2006 . The said vehicle was insured with the OP-United India Insurance Company on 17.6.2008.
    2.

    It is the case of the complainant that the said vehicle met with an accident on 14.9.2008. The complainant gave the intimation to the OP regarding the accident. It is further the case of the complainant that he spent Rs.38,000/- on the repair of the vehicle, and thereafter, submitted all the documents alongwith repair bills, DL and RC etc. to the OP for the settlement of the claim.
    3.

    It is the allegation of the complainant that the OP sent a letter dated 3.12.2008 to the complainant, stating therein, that the claim has been repudiated on the ground that the DL is for LMV and not for LTV . The OP has no right to repudiate the claim. The complainant is entitled to the amount of Rs.38,000/- alongwith interest and besides this, compensation of Rs.10,000/-, hence this complaint.
    4.

    OP filed the reply. Preliminary objections vis-a -vis jurisdiction, the driver was not holding a valid DL and the vehicle was used for the purpose not covered under the policy were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant has concocted a false story about the accident and the damage caused to the vehicle as no accident as alleged by the complainant took place. It is further replied that no FIR/DDR was recorded about the accident. The OP appointed Sh S.S.Notra , surveyor to assess the loss caused to the vehicle ,who assessed the loss to the tune of Rs.28,670/- only. It is further replied that the replying OP repudiated the claim as on verification of the DL from DTO Office Hoshiarpur , the driver of the vehicle Sh Parshotam Singh son of Chain Singh was holding a DL to drive LMV and the vehicle allegedly involved in the accident was registered as LTV, therefore, the complainant was not entitled for any claim and the claim has been rightly repudiated.


    That in the earlier complaint filed by the complainant,the reply was filed to the effect that no intimation for damage caused to the vehicle in the month of November,2008 was ever given .It was also replied that the complainant had reported some loss to the insured vehicle in a road accident alleged to have taken place on 14.9.2008. The replying OP had repudiated the claim and after going through the reply filed by the replying OP, the complainant withdrew the earlier complaint and filed fresh complaint after filling up the lacuna.
    5.

    In order to prove the case, the complainant tendered in evidence his affidavit Ex.C-1, affidavits of- Tajinder Singh, Sarabjit Singh Ex. C-2, C-3, copies of bills dated- 15.11.2008 Mark-A, Mark-B, dated 14.11.2008 Mark-C, RC Mark-D, insurance cover Mark-E, repudiation letter Mark-F, RC of vehicle no. PB07-K-7099 Mark-G, RC of vehicle no.PB08-AD-0273 Mark-H and cover note Mark-I and closed the evidence.
    6.

    In rebuttal, the opposite party tendered in evidence affidavits of – S.K.Aggarwal Ex.OP-1, Sukhwinder Singh Ex.OP-2, survey report Ex.OP-3, copy of RC Mark OP-4, verification of DL Ex. OP-5, repudiation letter Ex. OP-6 and copy of insurance policy alongwith terms and conditions Ex.OP-7 and closed the evidence.
    7.

    The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
    8.

    The Opposite Party-United India Insurance Company Limited repudiated the claim qua Mark-F on the following ground :

    “WHILE PROCESSING YOUR ABOVE MENTIONED CLAIM WE OBSERVED THAT VEHICLE IS REGISTERED AS LTV WHEREAS THE DRIVING LICENCE PRODUCED BY YOU IS FOR LMV, WHO IS NOT AUTHORISED TO DRIVE LTV VEHICLE HENCE YOUR CLAIM HAS BEEN REPUDIATED BY THE COMPETENT AUTHORITY.”

    9.

    Now, it is clear that the insurance company has repudiated the claim of the complainant on the ground that the vehicle is registered as LTV, whereas the driving licence produced by the complainant is for LMV, who is not authorized to drive LTV vehicle.
    10.

    The complainant has produced on record the copy of the Registration Certificate – Mark-D of vehicle No. PB07-N-3300 and its careful scrutiny makes it clear that in the column of Class of Vehicle, it has been recorded “LTV”. Since the Registration Certificate qua Mark-D has been produced by the complainant and in the column of “Class of Vehicle”, “LTV” has been recorded, therefore, the arguments of the ld. Counsel for the complainant that the vehicle in question bearing registration No. PB07-N-3300 was Light Motor Vehicle goes to the ground.

    11.

    Besides this, the opposite parties have produced Smt. Amarjit Kaur, Clerk, DTO Office, Hoshiarpur, as OW-1, who has stated on oath that she has brought the summoned record pertaining to the DL of Shri Parshotam Singh s/o Chain Singh, r/o Village Bagha, Distt. Hoshiarpur and as per the record, the DL No. 10938/N/06-07 had been issued for driving LMV only for the period from 19.1.2007 to 18.1.2010. There is no endorsement of LTV on the said DL. Besides this, the opposite party has also produced on record the verification report of District Transport Officer, Hoshiarpur – Ex. OP-5, wherein it has been certified that the DL No. 10938/N/06-07 for “LMV” only valid from 19.1.2007 to 18.1.2010 stands in the name of Parshotam Singh S/o Chain Singh, r/o Village Bahga, Distt. Hoshiarpur, per office record.
    12.

    Now, it is established on record from the statement of OW-1 that the driving licence of Shri Parshotam Singh bearing No. 10938/N/06-07 is valid to drive “LMV” only and there is no endorsement of “LTV” on the said driving licence. The complainant has produced on record the copy of Registration Certificate – Mark-D qua which the “Class of Vehicle” No. PB07-N-3300 has been recorded “LTV”, consequently it can be held without any hesitation that the vehicle in question bearing No. PB07-N-3300 was “LTV” and the driver namely Parshotam Singh, who was driving the vehicle at the time of accident i.e.,on 14.9.2008 was having the driving licence to drive “LMV” only and the said driving licence did not carry the endorsement of “LTV”.
    13.

    The law is setled that if a transport vehicle is being driven by a driving holding driving licnece for driving LMV only, without there being any endorsement for driving transport vehicle, the insurance company cannot be ordered to pay compensation. Reliance placed on Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., 2000 ACJ 319 (SC) and 2008 ACJ 627(SC), New India Assurance Co. Ltd. Versus Prabhu Lal.
    14.

    Now, it is clear that if a vehicle is Light Motor Vehicle, but falls under the category of Transport Vehicle, the driving licence has to be duly endorsed under Section 3 of the Motor Vehicles Act. If it is not done, the person holding driving licence to ply Light Motor Vehicle cannot ply transport vehicle. Undisputably, licence of Parshotam Singh did not have such an endorsement, therefore, the Insurance Company is not liable to pay any compensation to the complainant. Reliance placed on 2009(1)CLT 454,National Insurance Company Limited versus Sukhbir Singh and another.
    15.

    The distinction between a 'light motor vehicle' and a 'transport vehicle' is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct licence is required to be obtained. Reliance placed on Oriental Insurance Co. Ltd. v. Angad Kol and others, 2009 ACJ 1411.
    16.

    Now, it is proved on record that the driving licence of Sh. Parshotam Singh son of Chain was valid for driving “LMV” only and it did not carry the endorsement of “LTV”, therefore, it is held that Sh. Parshotam Singh was not possessing a valid and effective driving licence on 14.9.2008, the day the vehicle No. PB-07-N-3300 met with an accident.
    17.

    As a result of the above discussion, it is held that the driver of the ill-fated vehicle on the date of accident was not holding a valid driving licence to drive the vehicle No. PB-07-N-3300, therefore, the opposite party-insurance company had a legal right to repudiate the claim, as per terms and conditions of the insurance policy – Ex. OP-7. It is further held that the complainant has failed to prove any deficiency on the part of the opposite party, with the result, the complaint is dismissed. However, no order as to costs. Copy of the order be sent to the parties free of cost. File be consigned to the record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Smt. Sulochna wife of Sh. Darshan Singh son of Sh. Krishan Lal, resident of H.No.2083, Gali no.5, Tajpur Road, Indrapuri, Ludhiana, through her legal representatives:-

    1- Darshan Singh Rana Husband;

    2- Satish Rana Son;

    3- Sunil Kumar Rana Son;

    4- Naina Rani Minor daughter;



    …..Complainants.

    Versus



    1- Dr. Amarjit Singh Rattan;

    2- Dr. Gurdeep Singh;

    Both c/o Rattan Diagnostics, Harcharan Nagar, Gali No.2, Samrala Road, near Shingar Cinema, Ludhiana.

    3- United India Insurance Company Limited, Divisional House No.1, near Bharat Nagar Chowk, Ludhiana. …..Opposite parties.






    O R D E R





    1- Smt.Sulochna complainant, who died during pendency of the complaint and substituted by LRs, in this complaint U/s 12 of the Consumer Protection Act, 1986, on account of medical negligence of opposite party, have claimed compensation of Rs.9.50 lacs with 18% interest and cost of litigation.

    2- Case of the deceased complainant was that in December, 2002, she suffered with ailment of jaundice, for treatment of which, availed services of opposite parties no.1 & 2 of Rattan Hospital, Ludhiana. After charging Rs.200/- for checking, some tests were suggested and charged Rs.500/- for conducting the tests. Thereafter, opposite parties no.1 & 2 apprised complainant that there was a stone in her food pipe which could endanger her life, unless stone removed. Both opposite parties in connivance with Dr. Dalkay of Shri Bhagwan Ram Charitable Hospital, raised demand of Rs.75,000/- for operating her, which was paid, in order to improve her health. Opposite parties no.1 & 2 then performed operation alongwith Dr. Dalkay. Wrong operation was done, resulting in mis-management on account of medical negligence of opposite parties no.1 & 2. The negligence in operation resulted in injury to common bile duct, causing mental tension, pain and sufferance to the complainant.


    Thereafter, in order to get extracted more money from the complainant, asked complainant to undergo another operation, by stating that she had developed throat cancer. Again they demanded Rs.60,000/- and the same was paid. Opposite party then installed a bag in her stomach and thereafter, throw her out of the hospital. Subsequently, approached CMC, Ludhiana, and then came to know that she was wrongly operated by opposite parties no.1 & 2. No proper diagnosis was done. The matter of negligence was brought to the notice of Punjab State Human Rights Commission also. So, on account of such negligence, the present complaint.

    3- Opposite parties no.1 & 2 in their written statement, admitted operating the complainant, but denied any negligence or deficiency in service on their part. They claimed that treatment given to complainant was universally accepted and complainant failed to specify alleged negligence or what ought to have been done, was not done by them. Allegations of the complainant claimed to be false, frivolous and vexatious. It is pleaded that on 25.12.2002, complainant approached them, due to having severe pain in upper abdomen since 10-15 days, high grade fever since 10 days and complaint of vomiting since one week, passing dark yellow colour urine, she was suffering from jaundice and pulse was 108 per minute against normal pulse of 90 per minute, her chest and heart were examined. On examination of the abdomen, tenderness in upper portion of right side, was noticed. Big mass was found present in the right upper abdomen. She was admitted and advised surgical consultation and medical check up from Dr. Sandeep Sidhu. She immediately was put in treatment, administered I.V. fluids, pain killers.


    All necessary investigations were carried out. Same day on 25.12.2002 at 3.30 p.m., complainant was seen by Dr. Parvesh Dhall. On 26.12.2002, complainant was sent to Dr. Sandeep Sidhu, Reader in DMC College & Hospital, Ludhiana, for expert opinion, who advised CT Scan. CT Scan showed big mass with multiple stones in the gall bladder. On 27.6.2002, complainant was again sent to Dr. Sandeep Sidhu, who tried ERCP (Endoscopic Retrograde Chlingeogram and Pancredoctography) for removal of stone, but failed and then advised laprotomy (open surgery).


    Surgery was planned and conducted on 28.12.2002. Surgery (laprotomy) was performed by Dr. Parvesh Dhall, assisted by opposite party no.1. Her abdomen was opened in layers, a big mass with massive omental and intestinal adhesions, found. Adhesions were separated and distended, thickened gall bladder identified, as cholecystectomy was not possible, so gall bladder was opened up, plenty thick puss came out, lots of small and large size gall bladder stones were removed. After washing the abdomen and gall bladder, a catheter was put. Position of gall bladder stone was shown to relatives of the complainant. Abdomen was closed in layers.


    Catheter in gall bladder was put for 1-1/2 to 2 months and explained to husband of the complainant that second laprotomey was required to be performed after two months. The patient ultimately was discharged on 10.1.2003 in satisfactory condition, with advice of regular check up and return to the hospital after six months, for removal of catheter. But complainant came on 15.2.2003, with complaint that catheter came out spontaneously 10 days before the planned second surgery. She was examined and her jaundice was even reduced. Size of mass was also reduced, but tenderness still persisted. She was administered antibiotics, after consulting Dr. Parvesh Dhall. After taking consent, the patient was again operated by Dr. Parvesh Dhall, assisted by opposite party no.1, on 16.2.2003.


    On operation, it was found that CBD(Common Bile Duct) could not be identified, due to adhesions gut gall bladder. Gall bladder was removed with great difficulty. But there was injury to the CBD and for that thick, wide tube drain was put to the FOSSA, so that bile should not get deposited in peritoneal cavity. This was done in the interest of patient and is universally well recognized procedure throughout the world. Bile duct injury is a known complication in a complex gal bladder mass surgery. Dr. Dhall, who performed surgery, is well experienced, competent and qualified doctor, to perform such surgery.


    On 21.2.2003, general condition of the complainant was good, so abdominal drain was removed and liver drain was advised for 3 months. She was advised Headascan. On 3.3.2003, complainant was examined was Dr. Arivandum Ghosh, Super Specialist in Gastro Entrology Surgery and he is the only super specialist in northern part of the country. He again advised Headascan for which, was sent to Oswal Hospital. Husband of the complainant brought report of the headascan, but did not bring back the complainant. The patient was advised ERCP. It is denied that complainant was charges for operations, more than Rs.1 lac.


    Rather, she failed to pay hospital charges to the tune of Rs.15000/-. Further, it is claimed by them that complainant qua these allegations, had filed a complaint to the Director, Health Services, Punjab, who got the same inquired through Civil Surgeon, Ludhiana and the Board of Doctors, after making inquiry, considering medical record, found no negligence on their part. No loss was suffered by the complainant, nor they were negligent in operating the complainant.

    4- Opposite party no.3-Insurance Company of opposite party no.1, vide separate reply, claimed that complainant has not come with clean hands. They also denied any negligence on part of opposite party no.1 & 2 in treating the complainant. They have consequently, controverted and denied allegations of the complainant.

    5- Parties in support of their respective claims, adduced evidence by way of affidavits and documents.

    6- We have heard ld. counsel for the parties and minutely perused the entire record placed on the file.

    7- According to Sh. Narinder Chhibba Ld. counsel for complainant, opposite parties no.1 & 2, in quite disregard of the medical norms, while operating Smt. Sulochna deceased complainant, for removal of gall bladder stones, caused injury to the CBD, which complicated her case. Such injury to CBD was caused on account of negligence by the operating doctors, opposite parties no.1 & 2 and consequences or risks involved with such operation, were never explained to the complainant or her relatives, before conducting surgery.


    Therefore, opposite party in these circumstances, would be liable for negligence, while operating the complainant, which negligence caused her to undergo second operation. Therefore, it is argued by Mr. Narinder Chhibba Adv. that complaint deserves to be allowed and compensation as claimed, awarded.

    8- On the other hand, Mr. B.L. Saini Ld. counsel for opposite parties no.1 & 2, canvassed that complainant has wrongly dragged his clients, to this frivolous litigation, on false allegations and charges of medical negligence. There was no medical negligence on part of opposite parties no.1 & 2 and the prevalent treatment, as per medical procedure and standard or practice prevalent throughout the world, was provided and no negligence was committed by them. Further, he says that operation in the instant case, was conducted by Dr. Parvesh Dhall, who hasn’t been made party to the complaint. Complainant qua such allegations of medical negligence, had approached the State Govt., who got the inquiry conducted through Board of Doctors and after inquiry, scrutinizing medical record qua operation of the complainant, found no negligence by opposite party doctors. Consequently, he stresses that complaint being meritless, deserves dismissal.

    9- We have considered rival contentions of the parties and also perused the material placed on the record.

    10- Complainant qua her first surgery from opposite parties no.1 & 2, brought on record discharge card Ex.C1, showing getting admitted on 24.12.2002 and discharged on 11.1.2003 from hospital of opposite party and also discharge card Ex.C2 pertaining to second surgery for which, got admitted on 16.2.2003 and discharged on 8.3.2003. Regarding both these surgeries, opposite party have brought on record, entire in-patient record Ex.R5 and Ex.R6 of hospital of opposite party. As the entire hospital record of treatment, is brought on record by opposite party, so henceforth, would be referring to this record instead of discharge summary record produced by the complainant.

    11- Before we analyze material on record, may state that complainant had given consent on 28.12.2002, for her surgery. In this consent form, which is a part of in-patient record Ex.R5, risks or complications involved in surgery, were explained and consequently, consent form was signed by the complainant.

    12- Complainant to reflect that surgery for removal of gall bladder stones, conducted by opposite parties no.1 & 2, was coupled with negligence, causing injury to CBD, drew our attention towards discharge summary Ex.C4 of CMC & Hospital, Ludhiana. Outrightly, we may say that after her second surgery in March, 2003, complainant got herself admitted in CMC & Hospital, Ludhiana, on 6.5.2003 and got discharged on 10.5.2003. The final diagnosis recorded in discharge summary, are Obstructive Jaundice, CBD injury-stricture and acute cholangitis. So, argued on behalf of complainant that CBD injury was caused to the complainant, on account of medical negligence by opposite parties no.1 & 2.

    13- Such medical negligence was also earlier alleged by the complainant and conveyed to the Director, Medical Health, Punjab Govt. The Director, Medical Health, got complaint of the complainant inquired, by constituting Board of Doctors, comprised of Dr. N.C. Bassi, Distt. Family Welfare Officer, Civil Surgeon, Ludhiana, Dr. Ajit Singh Chawla, District Epidemiologist Officer, Civil Surgeon, Ludhiana. The Board of Doctors not only examined husband of the complainant, but also opposite parties no.1 & 2, perused and consulted entire medical surgery record of the complainant. The Board of Doctors in their report dated 8.8.2003, exonerated opposite parties no.1 & 2, from any negligence, while conducting surgery.


    They opined that there was marked adhesions and the patient had a complication of surgery i.e. CBD. Such injury to CBD according to them, was a known complication of this type of surgery, so there was no negligence on part of doctors, during management of the patient. Before arriving the conclusion, the Board of Doctors had given brief history of the entire treatment and tests, pertaining to the complainant on 25.12.2002 onward till her second surgery on 16.2.2003.

    14- Opposite party in order to show that such like complications, causing injury to CBD, are related to the procedures, referred to Book “Surgery of the Liver and Biliary Tract” (Third Edition), Edited by L.H. Blumgart and Y. Fong ( Ex.R1). In the book, the Ld. Authors have mentioned %age of Bile Duct injuries. Such Bile Duct injury from 0.1 to 0.7% have been mentioned, after considering number of patients treated.

    15- In Benign Biliary Strictures, by W.R. Jarnagin, L.H. Blumgart, it is recorded that “Because of the great frequency with which, the operation is performed, cholecstectomy remains greatest source of post operative biliary injuries. Open cholecstectomy has long been associated with a modest incidence of biliary injuries”.

    16- Further, the Ld. Authors at another stage, referred laprotomy from 1991 to 1993 of Strasberg and Associates, who reported overall incidence of biliary injuries of 0.85% and 0.52% incidence of major injuries. Further, they reported that there is a considerable evidence, to support an inverse relationship between incidence of bile duct injuries and number of cases performed.

    17- So, it means that in cases of complicated surgeries, injuries to bile duct may be caused. The Board of Doctors constituted by Director, Health Services, Punjab, after examination of material, also found no negligence on part of opposite parties no.1 & 2, while treating the complainant. Because such injuries to bile duct, in such complicated surgeries, could have happened. Contention of the complainant that risk of the surgery wasn’t explained to the complainant or her relations, before such surgery, would amount to negligence on part of operating doctors. But we do not agree with this contention of the complainant. Because risk or complications of the surgery, were explained to the patient, qua which she gave consent and thereafter, was operated.

    18- Here in this case, opposite party in addition to their affidavits, have relied on affidavit of Dr. Arivandum Ghosh. He claimed in his affidavit, having topmost degree in field of G.I. Surgery in India. According to him, on 2.3.2003, received telephone from Dr. Parvesh Dhall, requesting him to see the patient Sulochna (Complainant) on whom, had conducted surgery for removal of her gall bladder. He then examined Smt. Sulochana on 3.3.2003 and advised ERCP and headascan. After report headascan, he saw the reports and on seeing those reports, apprised husband of the complainant that standard treatment available in the world, was provided to the complainant. According to him, treatment given by Dr. Dhall to the complainant, was universally accepted treatment world over.

    19- Dr. Amarjit Singh Rattan, opposite party no.1, in support of his defence and plea, has filed his own affidavit.

    20- It is in these circumstances, we are required to conclude about medical negligence of opposite party. Law on the subject, is clear after decision of the Hon’ble Apex Court in Martin F. D’Souza Vs. Mohd. Ishfaq 1 (2009) CPJ 32 (Supreme Court). The Hon’ble Apex Court has laid law that unless medical negligence proved through expert evidence or opinion, medical practitioner can not be termed guilty of medical negligence, the Hon’ble Apex Court consequently, passed directions that before admitting complaint against hospital or a doctor, relating to medical negligence, such allegations should be first got examined from expert Board of Doctors, so that doctors may not be harassed. In the instant case also, Board of Doctors found no negligence, when Director, Health Services, constituted the Board, to look into allegations of the complainant.

    21- In another case titled as State of Punjab Vs. Shiv Ram & Ors. 2005 (3) Apex Criminal 268 (Supreme Court), their Lordships have held that “A professional may be held liable for negligence on one of the two findings: (i) either he was not possessed of the requisite skill which he professed to have possessed, (2) or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. Further their Lordships concluded that unless negligence is established, primary liability can not be fastened on the medical practitioner.

    22- In the present case, Dr. Amarjit Singh Rattan, opposite party no.1 is qualified doctor, having done MBBS in 1976 and M.S. in July, 1981, as apparent from his certificates Ex.R2 and Ex.R3. He is a registered medical practitioner from Punjab Medical Council (Ex.R4).

    23- So, it means the opposite party doctor was qualified and competent, to conduct surgery of the complainant. There is nothing to suggest that he acted negligently or wrongly or ought to have done something qua the complainant, which was never done by him.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Harvinder Pal Singh son of Sh.Tarlochan Singh VPO Ramgarh, Tehsil and District, Ludhiana.

    ….Complainant.

    Versus

    1. United India Insurance Co., Ltd., Above Allahabad Bank, Near Clock Tower, Ludhiana, through its Divisional Manager.

    2. The United India Insurance Co.Ltd., Chandigarh Road, Samrala, District Ludhiana through its Branch Manager.

    ….Opposite parties.






    O R D E R






    Complainant purchased Matiz Car bearing registration no.CH-03-9725, Engine No.F8CV 212160, Chasis No.02J013965, Model 1999 from previous owner Sh.J.L.Singla on 05.05.2007. Sh.J.L.Singla, had executed affidavit of sale in favour of the complainant. On the basis of affidavit complainant got the car insured from OP on 11.05.2007 by paying insurance premium of Rs.3414/-. Insurance was valid upto 13.05.2008. While issuing insurance it was clearly conveyed to OP that ownership of the car has not yet been transferred in the name of the complainant. After verification of affidavit and other documents of the car, insured car of the complainant. Complainant had applied to the registration authority, Ludhiana for registration of his car in his name, but they declined the request on technical ground and advised the complainant for another affidavit from the vendor.


    But as the insurance of the car was to expire on 13.05.2008, so complainant on this date got renewed insurance policy of the car effective till 13.05.2009. At that time of renewal of the insurance policy, all facts were made clear to the OPs and then they issued covernote in his favour. But, the car on 25.02.2008 met with an accident damaging it badly. Intimation of accident was given to OP who got the same inspected through surveyor and on advice of surveyor, repaired by spending Rs.19402.25 from his pocket. Claim under the policy was lodged with the OP, but they repudiated the same vide letter dated 21.08.2008 on the ground that “as per RC no insurable interest exists” in the vehicle. This repudiation is assailed and challenged to be wrong and illegal by filing this complaint under section 12 of The Consumer Protection Act, 1986 claiming the amount alongwith compensation of Rs.50000/- and litigation cost of Rs.25000/-.

    2. OP pleaded in reply that the complaint is not maintainable, as he is not a consumer; having no right to file the present complaint. Further averred that there is no deficiency in service on their part and case involves intricate question which can only be decided by the court of competent jurisdiction. On merits, they have controverted allegations of the complainant that on the basis of affidavit of the vendor, complainant got his car insured from OP2 on good faith. The RC of the car was transferred on 05.08.2008, after alleged accident on 25.05.2008. Complainant as per RC was not owner of the car at the time of alleged accident, complainant never submitted any documents that applied in the transfer of his car in his name. The claim as such endorsed by the complainant was got investigated by appointing investigator and surveyor and consequently rightly and legally repudiated the claim. It is also denied, complainant spent amount of Rs.19402.25 on repair of the car. Further claimed surveyor vide his report dated 19.07.2008 has assigned Rs.12932.50 only. Hence there is no deficiency in service on their part and complaint is liable to be dismissed.

    3. Both parties adduced evidence by way of affidavits and documents. We have heard the ld. counsel for the parties and gone through the entire record placed on the file.

    4. Sh. L.D.Gupta, ld.counsel for the complainant argued that complainant had purchased IInd hand car from Sh.J.L.Singla and obtained affidavit in proof thereof from him. But due to technical reasons ownership in RC qua this car was not transferred by DTO, but on basis of affidavit complainant in his own name obtained insurance policy from OP and after expiry of the same got it renewed from OP. Therefore, he says that on account that in RC, of the car, the complainant was not recorded owner, claim was arbitrary and illegally repudiated by OP. Because OP had entered into contract with the complainant to ensure his car. Whereas, OP justified repudiation on assertion that complainant was not owner of the car and by misrepresenting facts obtained insurance coverage from them. As he was not owner at the time of alleged accident, so they were justified in repudiating the claim.

    5. We have perused the record. As per RC Ex.C6 Sh.Harvinder Pal Singh, was owner of the said car, which he sold to the complainant by executing affidavit Ex.C1 dated 05.05.2007. Consequently, ownership of the vehicle stands transferred in the name of the complainant on 05.05.2008 when entry to that effect was made in RC Ex.C6 by Motor licensing authority, Ludhiana, after purchase of the vehicle under affidavit Ex.C1. Complainant in his own name got the car insured from OP on 11.5.2007 by paying insurance premium of Rs.3414/-, leading to issuance of insurance certificate Ex.C2 by OP. In this certificate Engine No.F8CV 212160, Chasis No.02J013965, Model 1999 as well as make and model of the car were mentioned.



    The Insurance coverage was up to 13.05.2008. On that date complainant name was not recorded in RC as owner, but simply on basis of affidavit of the vendor (recorded owner), he was taken and admitted by OP to be owner and consequently issued insurance of the car in his name. OP at the time of entering into Insurance contract with the complainant could have refused to insure car of the complainant, on the ground that it was not recorded in his ownership in the RC. But they ignored such aspect and on the strength of the complainant having purchased car under affidavit Ex.C1, issued insurance coverage in his own name.

    6. On expiry of this insurance, issued under certificate Ex.C2, OP provided renewal insurance coverage to the said car of the complainant in his own name vide insurance certificate Ex.C3 dated 13.05.2008, covering risk upto 13.05.2009. When this IInd insurance coverage of the car of the complainant was provided by OP, he was not entered as owner of the car in RC, as apparent from of RC. Endorsement as owner of the car in the name of the complainant was made on 05.08.2008.


    So it is manifest that OP twice insured vehicle of the complainant, which he had purchased under affidavit and ownership of which continued to be recorded in the name of previous owner in RC. Subsequently, ownership of the car was transferred in the name of complainant after he obtained another affidavit Ex.C10 dated 16.06.2008 from previous owner Sh.J.L.Singla. Therefore, we have no reason to disbelieve affidavit of the complainant Ex.CW1/A that on technical reasons DTO, Ludhiana earlier did not transfer ownership of the purchased vehicle in his name and asked for another affidavit, it was due to such reason he obtained IInd affidavit Ex.C10 dated 16.06.2008 from vendor Sh.J.L.Singla, who had earlier given him affidavit Ex.C1 dated 05.05.2007

    7. OP rejected the claim under communication Ex.C9 dated 24.10.08. Communication recorded in the letter is that accident had taken place on 25.05.2008, whereas complainant got the car transferred in his name on 05.05.2008 in RC. So on that date of accident, he had insurable interest in the insured vehicle.

    8. We consequently, adjudge the case of the complainant in view of the aforesaid material on the record.

    9. Out rightly, we may say that the claim of the complainant was not only arbitrary but unjustified also. As OP had entered into insurance contact with complainant, insuring the vehicle owned by him after purchase under affidavit executed by previous owner. OP at that time of insurance got satisfied with ownership of the complainant, as owner of the car and then they did not once, but twice provided insurance coverage to his car. Now does not lie in the mouth of OP to refuse or deny claim on the grounds that he was not registered owner in RC at the time of accident. OP would be estopped by their own act and conduct to take such stand and breach their own agreement or insurance contract with the complainant.

    10. Hon’ble National Commission in United India Insurance Company Ltd., Vs. Parul Bala 2009 (2) CPC page 57 (National Commission) has held that registration number of the vehicle alone cannot determine ownership. In the instant case also title in the car stood vested in the name of complainant as soon as he purchased it from the previous owner who had executed affidavit in support of sale of car to the complainant. Therefore title of the car from the date of sale vested with the complainant.

    11. Moreover, Insurance Company cannot be permitted to be careless while issuing Insurance and to be very careful when rejecting the claim, while getting insurance premium it was for Insurance Company to see whether requirement of ownership in RC was necessary before providing insurance coverage to the vehicle. It was not considered so at that stage by OP and accepted premium by providing insurance coverage despite ownership of the car in RC recorded in the name of previous owner and not in the name of the complainant. But they insured car in the name of the complainant, so now they cannot take contrary stand to deny such a claim.

    12. In view of this aspect, we feel OP was totally unjustified in rejecting the claim of the complainant.

    13. OP got claim of the complainant investigated by engaging services of assesser and valuer Sh.Ashok Chawla, who submitted his surveyor report dated 19.07.2008 and to prove this fact, placed affidavit Ex.RW2/A on the record. Surveyor assessed loss of Rs.12932.50 to the car. Though report of the surveyor is not final and last words, but it is a necessary document as was held in by the Hon’ble Supreme Court in New India Insurance Company Limited Vs. Pardeep Kumar 2009 CTJ 599 (Supreme court). Hence, it is established from his report Ex.R1 that the surveyor assessed loss of Rs.12932.50. We have no reason to disbelieve report and affidavit of Surveyor from which it stands proved that insured car of the complainant has suffered loss of Rs.12932.50 in the accident.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Kuldeep Kaur w/o S. Sukhdeep Singh, r/o H.No. 3079/10, St. no.12, New Janta Nagar, Gill Road, Ludhiana.



    …..Complainant.

    Versus



    1- M/s Satluj Hospital, 12-C, Sarabha Nagar, Ludhiana, through Dr. S. Mathur.

    2- The United India Insurance Company, DO-I, 455, The Mall, Ludhiana, through its Divisional Manager/Branch Manager. ….Opposite parties.







    O R D E R








    1- Car of the complainant met with an accident near Jagraon, consequently, she suffered injury on left thigh, right arm and head. She was immediately rushed to Civil Hospital, Jagraon, where after preliminary treatment, was referred to higher institute. As a result, was brought to Satluj Hospital, opposite party no.1 at Ludhiana, and after investigation, was detected having suffered fracture of right humerus at junction of upper 2/3rd and lower 1/3rd with fracture of left femur at junction of upper 1/3rd and lower 2/3rd with significant displacement.


    So, it was concluded by opposite party no.1 that complainant had sustained composite Grade-II right Humerus with Fracture of left Femur L W R Eyelid B/L Skin Traction and Spinta was done Right and Left LL Surgery was planned and UHN/plating R Humerus and CFN L Femur was planned. Total expenses for surgery, equipments, medicines, tests, were assessed at Rs.1,14,970.58, which was paid. After treatment, complainant was discharged on 2.7.2007 and thereafter, visited opposite party no.1 regularly.


    But again on 12.8.2007, went to hospital, for check up. It was disclosed that Humerus was not uniting and the same will require bone grafting. Then, she consulted other medical practitioner, who also told that bone grafting was required. Since then, complainant is suffering physical injury, as she was never apprised of bone grafting. Such bone grafting could have been done earlier, when she for the first time, took treatment from them.


    This they did intentionally, to grab unlawful money from the complainant. Act of opposite party amounts to deficiency in service, due to their negligence, which caused immense mental tension, pain, agony and financial loss to the complainant. Because opposite party no.1 resorted to unfair trade practice and cheated the complainant. Hence, in this complaint under section 12 of the Consumer Protection Act, 1986, claimed compensation of Rs.50,000/- and refund of the amount realized from her, due to resorting to unfair trade practice by opposite party no.1. In addition, also claimed litigation expenses.

    2- Opposite party no.1 in reply, claimed that complaint against them, is not maintainable. Allegations so levelled, require lengthy, technical question of fact and law and that allegations of complainant, are absolutely false, frivolous and vague. They denied for want of knowledge, suffering injury by the complainant in an accident. But claimed that she was having injuries on her person, when visited their hospital on 19.6.2007 for the first time. There was Compound Grade-II facture right Humerus with Radial Nerve Paresis.


    Contaminated Lacerated wound about 4” x 3” over lateral aspect mid 1/3 right arm; fracture shaft left femur; Lacerated wound right eyelid; Lacerated wound left hand and Lacerated wound right leg. After her arrival, was thoroughly clinically examined, investigated and efforts were made to stabilize general condition of the patient. Fractured limbs were splinted. The patient was catheterized after taking written consent of the patient and her relatives. While taking consent, it was explained to the complainant and her attendants that there can be delayed union and even non-union and other possible complications of the procedure, were also brought to their notice. Surgery was conducted on 20.6.2007. Surgical procedure was performed strictly in conformity with standard protocol/treatment prescribed for such like fractures/ailments.


    The decision to perform bone grafting was taken on 6.8.2007 and not at the initial stage. Because the patient was a case of polytraume, due to injuries to two major bones of the body in addition to soft tissues, on account of primary aim, to stabilize the fracture, to provide better nursing care; humerus fracture was compound grade-II, with contaminated wound and such grade-II wound would have increased manifold the risk of infection. Even medical literature does not justify the necessity of grafting compound factures, as primary bone grafting is never done in compound fractures.


    The surgery of the complainant lasted 7 hours and another surgery (bone grafting) would have entailed longer period of anesthesia in addition to another surgical procedure. This would have increased morbidity and risk of mortality in addition to chances of infection. Therefore, proper procedure was adopted. There was no negligence in conducting operation. Bone grafting at the initial stage, was not desired and would have been fatal to the patient. Therefore, no unfair trade practice was adopted, neither opposite party was negligent in treating the complainant. Complaint being meritless, deserves dismissal.

    3- Opposite party no.2 also filed separate reply, on the same lines of opposite party no.1. Averred that there is no deficiency in service on their part, complainant has no cause of action against them. Complaint is false and not sustainable and is filed to extort money from opposite parties. They are not liable to pay any compensation, as there is no negligence on part of opposite party no.1. Rest all allegations are denied and prayed for dismissal of the complaint.

    4- To prove their respective versions, parties produced evidence by way of affidavit and documents.

    5- We have heard ld. counsel for the parties and scanned minutely documents and other material placed on the file.

    6- What we could make out from the complaint, attributing negligence to opposite party no.1, is that when complainant for the first time, got admitted in the hospital of opposite party no.1, conducted surgery and could have at the same time done bone grafting. But they suggested another operation for bone grafting, when first operation had failed and the bone had not joined. Thereby, opposite party no.1 resorted to unfair trade practice and due to such conduct and negligence, suffered monetary loss, pain and sufferance.

    7- It is in such circumstances, contended on behalf of complainant that complainant has been able to prove her case of medical negligence by opposite party no.1, so complaint deserves to be allowed. Whereas, on the other side, on behalf of opposite party no.1, Sh. B.B.S. Sobti ld. counsel contended that diagnosis of opposite party no.1 was proper, as per medical norms and ethics. No mal practice was adopted, or he ever resorted to unfair trade practice.


    Complainant was referred from Jagraon to the best hospital of opposite party no.1 and complainant had suffered fracture in an accident and at that stage, it was not advisable, nor proper to have straight away gone for bone grafting, due to condition of the wound and fracture. First job for the doctor was to stabilize the patient and operation was conducted with full consent, knowledge of the complainant and her relatives. They were explained that there could be delayed union and even non-union and other complications of the operation, they gave consent and then surgery was conducted on 20.6.2007.

    8- Complainant qua treatment taken from opposite party, has mainly placed on the record, invoices and cash memos regarding purchase of medicines etc., necessary for purposes of the operation. However, opposite party has brought on record, in-patient history record of the complainant, copy of which is Ex.R1. It shows she was admitted in the super speciality hospital of opposite party no.1 on 19.6.2007 and discharged on 2.7.2007. When complainant got admitted in the hospital, she was having following injuries, suffered in an accident, on her person:-

    1- Compound Grade-II facture (R)Humerus with Radial Nerve Paresis. Contaminated Lacerated wound about 4” x 3” over lateral aspect mid 1/3 (R) arm;

    2- #Shaft (L) femur;

    3- Lacerated wound (R) eyelid;

    4- Lacerated wound (L) hand;

    5- Lacerated wound (R) leg.





    9- As per procedure adopted, fracture limbs were splinted, patient was catheterized and her consent was obtained. Consent form appended at page no.125 of record Ex.R1, goes to show that before operation, was explained consequences of mal-union, delayed union and non-union and in case of non-union, revision surgery may be required. Then surgery was conducted on 20.6.2007. A nail 6.7mm x 25mm with 2 proximal and 2 distal locking bolts and Cannulated Femoral Nail of 11. x 36 with 2 distal and 1 proximal locking bolt was performed. Surgery lasted for 7 hours. Lastly, wounds were cleaned and stitched.

    10- Subsequently on 6.8.2007, when there was re-union of the bone joint, bone grafting was suggested. This was done for the following reasons:-

    (i) The patient was a case of Polytraume where there were injuries to 2 major bones of the body in addition to soft tissues.



    (ii) The primary aim in polytraumtised patient, is to stabilize the fracture, so that nursing care becomes easy.



    (iii) The fracture Humerus was compound grade-II. There was a contaminated wound, Lacerated about 4” x 3”. The presence of wound (Grade-II) increases manifolds the risks of infection. Even the medical literature does not justify the necessity to graft compound fractures. Primary bone grafting is never done in compound fracture.



    (iv) The surgery to stabilize the fractures and suture various wound, lasted 7 hours. Another surgery (Bone Grafting) would have entailed a longer period of anesthesia in addition to another surgical procedure. It would have greatly increased the morbidity and risk of mortality in addition to chances of infection.



    (v) The presence of contamination of lacerated wound increases the risk of infection. Bone grafting of such a fracture would have meant risking infection and Chronic Osteomylitis of Humerus, in addition to failure of the whole procedure.





    11- It is contended on behalf of opposite party no.1 that bone grafting is rarely applied at the time of initial internal fixation, due to risk of infection. Subsequently, bone grafting was got done by the complainant, instead from opposite party no.1, but from Pahwa Charitable Hospital, as per affidavit of the complainant. Same thing was got done by the complainant from Pahwa Charitable Hospital, which was suggested of opposite party no.1 and there is no material on the record that diagnosis of opposite party no.1, was wrong or he was negligent in suggesting so to the complainant.

    12- It is in these circumstances to be seen whether bone grafting could have been possible or proper at the first instance, when complainant got admitted in opposite party no.1 hospital. Complainant has not brought any medical literature on record, to prove so. Whereas, opposite party have relied on medical literature Ex.R2, dealing with Fractures in Adults Vol.I, Fifth Edition by Ld. Authors Rockwood and Green’s. At Page No.309 of the literature, dealing with Bone Grafting. Ld. Authors have noted as under:-

    “Autogenous cancellous bone grafts are used frequently in internal fixation of open fracture (8). Because of the risk of infection, these bone grafts are rarely applied at the time of initial internal fixation. An exception is in type I and mild type II intraarticular fractures, where cancellous bone is necessary to fill defects for obtaining anatomic reduction and stable fixation. Bone defects, particularly in diaphyseal fractures, usually heal faster if filled.”.



    At another stage, it is recorded by the Ld. Authors that “Bone Grafting is best applied at the time of delayed primary closure in type I and type II open fractures”.

    13- Fracture of the complainant was also of Grade-II. Therefore, such option of bone grafting at the first instance would not have been advisable and in the interest of complainant himself. If the opposite party elected best course for the benefit of the patient, he certainly can not be termed resorting to unfair trade practice, to extract money, by opting for two operations instead of one.

    14- There is no expert opinion that procedure adopted by opposite party no.1, was against medical ethics, norms or practice or that complainant was negligently treated by him. Whereas opposite party no.1 in his affidavit, have supported his averments in reply. Such narration of opposite party, is authenticated by affidavit Ex.R3 of Dr. Rajneesh Garg, Associate Professor, Orthopaedics, DMC & Hospital, Ludhiana and affidavit Ex.R4 of Dr. Sanjeev Mahajan, Associate Professor, Orthopaedics, DMC & Hospital, Ludhiana. After going through record of the case, they opined that primary bone grafting is not done in grade-II fracture of humerus. Further, they deposed that treatment meted out to the complainant by opposite party, was standard treatment and there was no negligence or lapse or deficiency in service on his part.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Baljinder Kumar son of Sh. Raj Pal, resident of Dalip Singh Nagar, St. No.4, Ward No.3, House No.155, Khanna.

    (Complainant)

    Vs.



    1. Dr. Ajit Singh, Ajit General & Maternity Hospital, near Libra Petrol Pump, G.T. Road, Khanna.



    2. United India Insurance Company Ltd. having its office at 54, Janpat Connaught Palace, New Delhi-110001, through its Director/Managing Director.



    (Opposite parties)







    O R D E R



    1. By filing the present complaint under section 12 of the Consumer Protection Act, 1986, the complainant on account of negligence by Dr. Ajit Singh-OP No.1 in wrongly diagnosing him as patient of Tuberculosis (TB), with which he never suffered and consequently the medicines administered caused side effects effecting his memory and brain, has claimed compensation of Rs.4,50,000/- including refund of Rs. 1,50,000/- spent on treatment, Rs.2,00,000/- for loss of study of two years, Rs.1,00,000/- for physical torture and Rs.5500/- as costs.

    2. Case spelled from the complaint is that in year 2004, after passing B. Com started preparing for chartered accountancy. Complainant for his medical problem had been taking medicines from opposite party no.1, a qualified doctor running a hospital in the name and style of Ajit General and Maternity Hospital, Khanna. In April 2005 on account of ailment, opposite party no.1 on 16.4.2004 was consulted, on whose advise x-ray of chest was got done. After seeing the reports, opposite party no.1 declared him suffering from TB and started treatment for the same. After taking medicines for 2-3 days, condition of the complainant worsened. Hence, opposite party no.1 was again contacted who advised admission in the hospital and to complete the course as prescribed.


    But despite such treatment, no relief was felt and the complainant remained under regular problem of headache, vomiting, mental depression and drowsiness. Consequently, in May 2005 consulted Dr. Urvinder Singh of T.B. hospital, Patiala. He after verifying x-ray taken by opposite party no.1, intimated that complainant was not suffering from T.B. and was wrongly diagnosed as such by opposite party no.1. On his suggesting, another x-ray was taken, report of which suggested that complainant was not suffering from T.B. Thereafter, Dr. Pammi Singh Psychiatrists of Ludhiana for problem of mental depression was consulted. The said doctor apprised that complainant was having depression problem due to medicines prescribed for T.B. by opposite party no.1. Thereafter, opposite party no.1 was again contacted who insisted that complainant was suffering from T.B..


    Then on advice of Dr. Pardeep Moudgill of Khanna, complainant got himself checked in PGI, Chandigarh. On examination of x-ray report, it was pointed that he was not suffering from T.B., but from mental depression, less memory and drowsiness caused due to medicines prescribed to the complainant as a T.B. patient. So, such act of opposite party no.1 diagnosing him as T.B. patient, with which disease he never suffered is claimed to be negligent, which caused depression and memory problem to the complainant. Act of opposite party no.1 caused harassment, financial loss to the complainant.

    3. Opposite party no.1 in reply claimed that complaint is totally vexatious , misconceived, no cause accrued to the complainant against him, as there is no deficiency in service or negligence on his part. It has been filed on baseless, false and frivolous allegations just to harass and defame him with the purpose to extort money illegally. He avers that medical treatment to the complainant was given with due care and caution and as such there was no negligence in his treatment.


    There is no evidence in support of allegations of negligence or deficiency in service by the opposite party. Treatment given by opposite party no.1 was proper. It is pleaded that on the basis of the medical history provided by the complainant, clinical and x-ray findings, he was diagnosed a case of lung TB. So, medicines for the problem were prescribed rightly. He as an outdoor patient remained under his treatment for four weeks only, during which visited him thrice. On account of his treatment, condition of the complainant improved, he gained body weight due to treatment by 2.5 Kg.


    He was well responding to the treatment. It is admitted that complainant after consulting TB hospital came to him on 17.5.2005. He was explained pros and cons of anti TB drugs and was given freedom to choose the line of action. But he never returned to his hospital, rather, he remained under treatment of Dr. Pardeep Moudgil who advised Chest X-ray and CT scan in December 2005. There was a gap of seven months of treatment taken from Dr. Pardeep Moudgill, during which he had taken medicines for treatment of TB. Medicines prescribed by him never affected mental health of the complainant. No anti TB drugs even caused depression or mental illness. Condition of the complainant worsened after he discontinued anti TB drugs. Hence, there is no negligence on his part and the complaint being false deserve dismissal.

    4. OP 2 -Insurance Company on behalf of opposite party no.1 vide separate reply have also prayed for dismissal of the complaint and adopted reply given by opposite party no.1 in his defence.

    5. Both the parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

    6. We have heard the ld. counsel for the parties and have gone through the file and scanned the documents and other material on record.

    7. Complainant has attributed negligence to opposite party no.1, under two counts. Firstly, he avers that was not suffering from TB and on the basis of blood test reports and x-ray, wrongly adjudged him suffering from TB, with which disease he never suffered. Consequently due to such negligence and wrong conclusion of opposite party no.1, took medicines for curing TB. Second allegation of the complainant is that due to taking of such anti TB medicines as prescribed by opposite party no.1, he came under mental depression affecting his memory, suffered drowsiness and this happened due to wrong prescription of medicines by opposite party no.1.

    8. On behalf of complainant, it was contended by the ld. counsel that complainant has been able to prove his both allegations amounting to negligence of opposite party no.1. Thereby such negligence on the part of opposite party no.1, ruined life of the complainant, causing him mental tension drowsiness, stress and financial loss affecting his studies and as a result entitled for claimed compensation.

    9. Whereas on behalf of the opposite parties, it was argued that opposite party no.1 after knowing the history, condition of the patient and his blood and x-ray reports rightly diagnosed him suffering from TB and there was no negligence in such diagnosis. Due to taking of medicines prescribed by opposite party no.1, condition of the patient improved, he gained body weight in short span of taking anti TB drugs. So, his allegations qua it are totally false. Further he argued that there is no proof of giving negligently wrong medicines, which consequently affected his mind, brain etc. Therefore, in these circumstances, complaint being merit less deserves dismissal.

    10. First question is whether diagnosis of the complainant by opposite party no.1 declaring him to be a patient of TB was wrong, amounting to negligent as the complainant was never having such disease. Ex.CW4 is OPD ticket dated 16.4.2005 of the complainant issued by opposite party no.1. Complainant was diagnosed of D Pul Kochs (TB) on the basis of chest x-ray. It is recorded in the OPD ticket that chest x-ray showed infiltration right mid zone and lower zone when complainant reported on 16.4.2005 to opposite party and also reported problem of feverish and numbness of mind having temperature 100°f and weight 43.700Kg.

    11. Second endorsement on the ticket is dated 21.4.2005 on which date had temperature 102.6°f , SGPT 4.2, DLC 7.2 to 1.6. On 3rd May, 2005 his weight was found 45.200kg and on 17.5.2005 46.200Kg. Also there is reference of x-ray dated 10.5.2005 done at Patiala and on seeing that report advised to continue the same treatment as per schedule.

    12. However, complainant along with his OPD ticket Ex.CW4 has not appended his blood test report as well as x-ray which were taken on the advice of opposite party no.1. Because, it was on the basis thereof that opposite party no.1 diagnosed the complainant suffering from TB. Such documents would have helped us, but unfortunately are not on the record. Rather the complainant has placed urine examination, biochemical and microscopy report Ex.CW5 dated 4.5.2006, but said report pertains to the period subsequent to consultation and prescribing medicines by opposite party no.1 on 16.4.2005. For the same reason Ex.CW6 Hematology report dated 10.5.2005 and report Ex.CW7 for 16.5.2005 to 21.5.2005 qua his temperature would be of no consequence.

    13. On 15.5.2005, complainant consulted doctor of TB Hospital, Patiala vide OPD ticket CW10 dated 15.5.2005. In that ticket mentioned the complainant having opacity of right mid zone and was suggested sputum AFB (acid fast bacilli) for ascertaining TB Bacteria. But no doctor of TB hospital examined to prove allegations of the complainant that such doctor had found complainant not suffering from TB and that was wrongly diagnosed as such by opposite party no.1.

    14. However, complainant is able to bring on record Radiograph Chest PA View report Ex.CW15 dated 13.12.2005. Impression recorded in the report is as under:

    “Reticulo nodular opacities B/L lung fields with calcified hilar lymph nodes with obliteration of B/L CP angles s/o diffuse lung disease.

    Advised: HR CT Chest with CECT CT Chest.



    15. As advised in report Ex.CW15, complainant got CECT CT Chest done vide report Ex.CW16 dated 16.12.2005. Ultimate impression of this report recorded is as follows:

    F/S/O ? Allergic broncho-pulmonary aspergillosus

    ??Sarcoidosis.



    So, complainant was found having allergic broncho-pulmonary aspergillosus, Sarcoidosis.



    16. Subsequently, the complainant got treatment as an outdoor patient in PGI, Chandigarh. Ex.CW17 is OPD ticket dated 10.3.2008 showing that there is no evidence of pulmonary TB. This out door patient ticket is dated 10.3.2008, which was after three years of taking first consultation and treatment on 16.4.2005 from opposite party no.1 by the complainant. Though complainant earlier on 22.4.2006 vide OPD ticket CW18, dated 10.12.2007 Ex.CW19, dated 21.2.2007 CW20, dated 22.4.2006 Ex.CW21, and CW22 dated 11.2.2007 of PGI, Chandigarh had taken treatment as an outdoor patient in PGI, Chandigarh. Certain medicines in all those prescriptions were recorded. But, we have no material whether those medicines related to his alleged suffering from TB or his brain problem, as no doctor from PGI is examined to prove on what account he had taken such treatment in PGI, Chandigarh.

    17. OPD ticket Ex.CW17 dated 10.3.2008 conclude that complainant was not having pulmonary TB, would not lead to the conclusion that he was not having such problem in April 2005 i.e. three years prior to such conclusion of the PGI, Chandigarh.

    18. In these circumstances, we have nothing on record that diagnosis by opposite party no.1 qua complainant was wrong amounting to negligence on his part.

    19. In case titled as State of Punjab Vs. Shiv Ram & Ors. 2005 (3) Apex Criminal 268 (Supreme Court), Their Lordships have laid guidelines for concluding a professional liable for negligence. It is held that he can be declared to be negligent on one of the two findings (i) either he was not possessed by the requisite skill which he professed to have possessed; (ii) or he did not exercise with reasonable competence in the given case, skill which he possessed. Further, it was concluded that unless negligence is established, primary liability can not be fastened on the medical practitioner.

    20. In the instant case, complainant himself has admitted opposite party no.1 to be a qualified doctor. Negligence on his part qua diagnosing and administering wrong medicines is also not proved. Therefore, the opposite party no.1 can not be termed negligent in treating the complainant.

    21. Now coming to the second point, whether administering anti TB drugs by opposite party no.1 to the complainant affected his memory, caused mental depression and drowsiness due to such medicines. Though, complainant has placed on the record ultra sound scan report of his brain Ex.C.W8 dated 26.6.2005, report Ex.C.9 dated 22.3.2005 of Dr. Pammi Singh. But we may state that there is no evidence on the record that mental faculty or numbness of the mind of the complainant was impaired or affected due to taking of anti TB drugs as prescribed by opposite party no.1.


    Complainant has not shown us any material to suggest that taking of such drugs could have affected his mental faculty. Be stated that on 16.4.2005, when complainant for the first time approached opposite party no.1, he also complained of numbness of mind and feverish. So, it means taking of medicines as prescribed by opposite party had no side effect and there is no proof that those medicines caused memory loss of the complainant or caused numbness of the mind.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    M/s Preview Fashions, 8th Km, Milestone, Pakhowal Road, Lalton Kalan, Ludhiana, through its Partner Sh. Krishan Murari.



    …..Complainant.

    Versus



    1- United India Insurance Company Limited, 24 Whites Road, Chennai through its General Manager.

    2- United India Insurance Company Limited, 151-A, Industrial Area-A, Cheema Chowk, Ludhiana through its Branch Manager. …..Opposite parties.








    O R D E R









    1- Complainant got insured, vide policy no.201002/48/03/00721, valid from 26.3.2004 to 25.3.2005, cash in transit from factory premises to bank and vice versa, from the opposite party company. On 7.5.2004, Sh. Sukhwinder Singh Sachdeva, employee of the complainant, after withdrawing cash of Rs.1,70,000/- from HDFC Bank, The Mall, Ludhiana, started on his scooter no.PIH-625 for the factory. But on passing Kothi No.142, Nihal Chand Road, Ludhiana, one Maruti car came from behind and two persons came out of the car and attacked Sh. Sukhwinder Singh, with knife. The person, who was driving the car, took out pistol on Sh. Sukhwinder Singh and forcibly snatched bag containing currency of Rs.1,70,000/-. Sh. Sukhwinder Singh qua it, lodged FIR No. 124 dated 7.5.2004 in P.S. Divn. No.5, Ludhiana.


    Theft was reported to opposite party immediately. Claim was lodged for the stolen insured cash and submitted all relevant papers, as desired by opposite party. Thereafter, many requests were made for settlement of the claim by the opposite party, but they evaded his requests. Such act on part of opposite party, claimed amounting to deficiency and negligence in duty. Hence served legal notice dated 30.4.2008. Despite it, claim remained unsettled. Consequently, this complaint under section 12 of the Consumer Protection Act, 1986, seeking Rs.1,70,000/- lacs with 18% interest alongwith Rs.50,000/- compensation and Rs.11000/- litigation costs.

    2- Opposite party pleaded in reply that complaint is not maintainable, is bad for non joinder of necessary parties, complainant estopped by act and conduct to file complaint, it is barred by limitation, there is no deficiency in service on their part and allegations can only be decided by civil court. Obtaining insurance is not denied. But all other allegations of the complainant, relating to snatching of Rs.1,70,000/- lacs from their employee Sh. Sukhwinder Singh, are denied. Further claimed that amount insured, was to be carried directly from bank to the insured premises or vice versa. Even as per allegations of the complainant, alleged place of occurrence does not fall on way fro bank to Lalton Kalan. Hence, violated terms and conditions of the policy.


    Other allegations have also been denied. Claim of the complainant was got investigated through Rajesh Nakra & Co. Surveyor, who approached the complainant with letters, to furnish certain documents. Complainant failed to provide such documents to the surveyor. Hence, surveyor submitted his report dated 23.2.2005. On the basis thereof, claim was repudiated vide letter dated 18.11.2005, as “no claim”. Because complainant had failed to submit required documents. So, there is no deficiency in service on their part.

    3- To prove their respective claims, both parties adduced evidence in the shape of affidavits and documents.

    4- Both ld. counsel for the parties stood heard and record scanned minutely.

    5- Outrightly, it was argued that complaint is time barred. Hence, such objection be decided before touching allegations on merit.

    6- No doubt, as per allegations, bag containing currency of Rs.1,70,000/- was snatched on 7.5.2004 from Sh. Sukhwinder Singh, employee of the complainant, which amount he had withdrawn from HDFC Bank, Ludhiana, as apparent from bank certificate Ex.C4. Qua theft, FIR Ex.C2 was lodged and claim with opposite party, vide application Ex.C5 dated 7.5.2004, was lodged by the complainant and thereafter, also served legal notice Ex.C6 on opposite party.

    7- It is not in dispute that insurance coverage, as alleged by the complainant, was obtained by him vide policy Ex.R7. This claim of the complainant was repudiated by opposite party vide letter Ex.R5 dated 18.11.2005 and repudiation letter under postal receipt Ex.R6 dated 23.11.2005, was sent to the complainant vide dispatch no.3106 dated 23.11.2005, copy of which is Ex.R8. So, it means repudiation letter in November, 2005, must have been served upon the complainant. Complainant purposely kept silent in his pleadings qua receipt of repudiation letter.


    Because repudiation of the claim was made in November, 2005, but complaint was filed on 23.11.2008, after three years. Whereas, this Fora has jurisdiction, to entertain the complaint within two years from the date of cause of action. Such cause of action accrued to the complainant by the end of November, 2005. Limitation, as such, to file complaint, had expired in November, 2007. No explanation for such delay in filing complaint, has forthcome on the record. Hence, concluded that this complaint is barred by limitation.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Amritpal Singh aged 25 years son of Gurnam Singh, r/o village Chaunta, Tehsil & Distt. Ludhiana.

    …..Complainant.

    Versus

    United India Insurance Company Limited, 151-A, Indl. Area-A, Cheema Chowk, Ludhiana.

    ….Opposite party.




    O R D E R







    1- The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986, on allegations that he is running a dairy farm in his village and owned 20 buffalos, which he got insured for their lives from opposite party, vide policy no.201002/47/07/01/00000008, valid from 17.10.2007 to 16.10.2008. One buffalo of complainant, died on 15.3.2008, price of which was assessed at Rs.28,000/- by opposite party at the time of insurance for life. Particulars of said buffalo are entered at Sr. No.3 of the policy. Postmortem of buffalo was conducted by Dr. Rajesh Malik, Veterinary Officer, Civil Veterinary Hospital, Chaunta, District Ludhiana, on 15.3.2008.


    Further averred that complainant took loan for purchase of buffalos from Oriental Bank of Commerce, Rahon Road, Ludhiana, to whom also death of buffalo was informed. Bank officials inspected dead body of buffalo on 15.3.2008 and reported death of buffalo to opposite party. Thereafter, complainant applied for payment of claim amount of Rs.28,000/- i.e. price of buffalo assessed by opposite party at the time of insurance, vide live stock claim form dated 26.3.2008.


    When no amount paid by opposite party, served notice dated 20.8.2008, calling upon them to pay Rs.28,000/- within 15 days, but to no effect. Such act of opposite party amounts to deficiency in service on their part. Further averred that complainant is also entitled to damages of Rs.22,000/-. So, has prayed that opposite party be directed to pay Rs.28,000/- being amount of claim and Rs.22,000/- damages, total Rs.50,000/- to him.

    2- Opposite party contested the complaint, pleading that complaint is not maintainable, as immediately after receipt of intimation regarding death of buffalo, opposite party deputed Dr. Satnam Singh, Investigator/Doctor, to assess the loss of claim lodged by the complainant, who submitted detailed report with opposite party. As per report of surveyor and as per terms and conditions of policy, complainant was entitled to Rs.20,000/- which was paid to him vide cheque no.053315 dated 31.10.2008 for Rs.20,000/-, drawn on Centurion Bank of Punjab Ltd., Ludhiana. So, there is no deficiency in service on their part. Complainant has not come to the Fora with clean hands and suppressed material facts. It is denied that value of dead buffalo was Rs28,000/-. Amount has been paid to the financier of the complainant. Rest of allegations is denied and prayed for dismissal of complaint.

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

    4- Complainant argued that he got insured 20 buffaloes for their lives with opposite party vide policy no.201002/47/07/01/00000008 for period from 17.10.2007 to 16.10.2008 Ex.C1. One buffalo died on 15.3.2008 and price of that buffalo was assessed at Rs.28,000/- at time of insurance. Particulars of buffalo are entered at serial no.3. Post mortem of buffalo was done by Dr. Rajesh Malik, Veterinary Officer, Civil Veterinary Hospital, Chaunta, Distt. Ludhiana on 15.3.2008 vide report Ex.C2. He also issued health certificate dated 18.7.2007 Ex.C3. Complainant argued that he lodged claim for death of buffalo vide claim Ex.C5 for Rs.28000/-, and opposite party issued claim amount of Rs.20,000/- against the claim of death of buffalow, which is insufficient, illegal and void.

    5- Opposite party argued that after receipt of intimation of death of buffalo bearing ear Tag no.1356, they deputed Dr. Satnam Singh investigator, to assess loss to complainant. The investigator submitted his detailed report dated 15.10.2008 Ex.R1, stating cause of death as liver abscess and liver cirrhosis. As per report of investigator and as per terms and conditions of policy, complainant was entitled for Rs.20000/- which were paid to him through cheque no.053315 dt. 31.10.2008, drawn on Centurion Bank of Punjab, Ludhiana. So, there is no deficiency on part of opposite party, as the claimant has been paid the amount against his claim of dead female buffalo bearing tag no.1356, brand bovine, colour black, horns curved, Nili Ravi, white marks on forehead, switch of tale white, aged 6-3/4 years. So, complaint filed by complainant is false and frivolous and liable to be dismissed.

    6- From above facts and figures, it is clear that female buffalo of complainant was expired on 15.3.2008, due to liver abscess and liver cirrhosis, as per investigation report Ex.R1, which was insured vide policy Ex.C1 for Rs.26000/-. Post mortem was also conducted by Dr. Rajesh Malik vide report dated 26.3.2008 Ex.C2. Further, claim was lodged by complainant vide Ex.C5 for Rs.28000/-. The opposite party deputed investigating officer Dr. Satnam Singh, who after investigation submitted report Ex.R1 of dead buffalo of complainant bearing tag no.1356, buffalo, female, black, horns curved, nili ravi.


    It is also to mention here that investigating officer submitted in his report Ex.R1 that value of the buffalo should be between Rs.20000/- to Rs.22000/-. We rely on this report which is a very important and significant documents, which has been dealt at depth by the investigating officer, to go into the matter in details.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Som Nath Gupta, 313-A, Aggar Nagar, Ludhiana.



    …..Complainant.

    Versus



    1- United India Insurance Company Limited, Division No.5, Mall Road, Ludhiana.

    …..Opposite party.







    O R D E R








    1- Complainant for self and his wife Smt. Swaran Gupta, obtained Medi Guard Policy for Rs.1 lac, vide policy no.201100/48/05/00540, for the period 30.8.2005 to 29.8.2006, from the opposite party. Earlier continuously, had been purchasing policies from opposite party since 31.8.1998. Complainant claims that he and his wife were admitted in Sibia Medical Centre, Ludhiana, on 11.5.2006 and discharged on 3.5.2006, but after discharge, treatment continued upto 21.5.2006. They submitted medical bills of Rs.1,46,928.86 to opposite party, who vide letter dated 31.10.2006, stated that hospitalization was not necessary.


    Hence, approached Insurance Ombudsman, Chandigarh and the Ombudsman vide letter order dated 9.3.2007, decided the case in his favour. Consequently, out of claim of Rs.1,49,928.86, insurance company paid Rs.1,21,800/-. Amount of Rs.25,128.86 is yet to be paid by opposite party. This amount was incurred on treatment, including various tests before pre-hospital and medicines consumed ater hospitalization under doctor advice, so amount is payable. By not paying it, opposite party is deficient in rendering services. So, in this complaint u/s 12 of the Consumer Protection Act, claimed this amount with 12% interest and litigation cost of Rs.5000/-.

    2- Opposite party claimed in their reply that complaint is not maintainable, as claim so lodged, has already been paid to the tune of Rs.1,21,800/- and nothing remains payable. The amount was received by the complainant as full and final receipt of the claim. Hence, they can not re-agitate the matter. Order dated 9.3.2007 of the Insurance Ombudsman, Chandigarh, stands fully complied. They had deducted payment for tests and other expenses incurred outside the hospital, as they were not payable under the policy. Complainant and his wife had taken package of treatment of Rs.60,900/- each. Hence, now debarred from filing the complaint.

    3- We have heard the complainant in person as well ld. counsel for opposite party and perused the entire material placed on file thoroughly.

    4- It is admitted that Insurance Ombudsman, vide order Ex.R1 dated 9.3.2007, had ordered opposite party to pay the amount to the complainant, after excluding amount spent for tests and other expenses which were carried out outside the hospital before hospitalization. In compliance of the order Ex.R1, opposite party released payment of Rs.60,900/- each to the complainant and his wife and obtained receipts Ex.R4 and Ex.R5 respectively from them. Under both these receipts, complainant and his wife received the payment as full and final discharge of claim under the insurance policy. The payment was not received under protest. Rather, it was received by them as full and final discharge of their respective claims.

    5- Having received the amount after accepting order of Insurance Ombudsman, without protest, it would go to show that complainant discharged the insurance company from further liability, on receipt of the amount, as ordered by the Insurance Ombudsman.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Amrit Lal Angrish s/o Sh. Ramji Dass R/o H.No.237-B, Shivpuri Mohalla, Khanna, District Ludhiana.



    …..Complainant.

    Versus



    1- United India Insurance Company Limited, H.No.24, Whites Road, Chennai- 600014 through its Managing Director.

    2- United India Insurance Company Limited, B/o G.T. Road, Opp. Main Bus Stand, Khanna, Distt. Ludhiana through its Divisional Manager.

    …..Opposite parties.







    O R D E R








    1- In this complaint U/s 12 of the Consumer Protection Act, 1986, complainant has alleged various deficiencies of services towards him, being holder of insurance vide cover note no.1015755 dated 3.11.2006, valid upto 3.11.2007. Opposite party failed to issue qua this cover note, policy and also declined to renew the same, despite obtaining cheque no.380172 dated 3.11.2007 for Rs.548/-, payable on Indian Overseas Bank, Khanna. Such act of opposite party, claimed amounting to deficiency in service, causing harm to the complainant. He claimed that his wife Smt. Kiran Bala was suffering from ailment for which, took treatment as indoor patient from Khanna Nursing Home, between 24.2.2007 to 25.2.2007. Then, she was referred to Dr. Ajit Sood, where treatment was taken under his supervision. Insurance claim of Rs.7570/- was raised, but allowed to the extent of Rs.5200/- approximately. Treatment from Dr. Sood was carried out from 15.4.2007 to October, 2007.


    On completion of treatment, supplementary claim was filed and were also requested to review earlier claim of Rs.7570/-, but his request was rejected on ground that claim does not fall within purview of the policy. He then issued letters dated 14.12.2007, 7.1.2008 to the opposite party, to re-consider his case, as treatment was continuous and there was no break-up in treatment. But despite it, they rejected his genuine claim, on ground that treatment taken was as out door patient and not indoor patient. Whereas, that treatment was in continuation of treatment obtained as indoor patient in Khanna Nursing Home. Therefore, claim was wrongly rejected.

    2- Opposite party contested the complaint, by averments that complaint is not maintainable, complainant has suppressed material. But admitted that complainant had obtained Universal Healthcare insurance policy from 4.11.2006 to 3.11.2007. Under that policy, complainant had made claim twice during continuance of the policy. He was paid claim of Rs.3548/- on 20.1.2007, on account of his illness and on second time, claim of Rs.5366/- was paid on 31.5.2007, on account of illness of his wife Smt. Kiran Bala.


    Complainant now has lodged third claim qua ailment of his wife, but that claim has been rightly and legally repudiated under terms and conditions of the policy. Because under the policy, only medical expenses incurred during hospitalization, were covered. Expenses incurred as outdoor patient, were not covered under the policy condition no.2.3. So, claim was rightly repudiated, as wife of the complainant, was never hospitalized and the outdoor treatment of the patient, was not in continuation of her previous treatment.

    3- To support their respective pleadings, both parties produced evidence in the shape of affidavits and documents.

    4- We heard the complainant in person, ld. counsel for opposite party and scanned entire material placed on the file minutely.

    5- Outrightly, we may say that the sole question to be determined for disposal of the complaint, is whether outdoor treatment taken by wife of the complainant, during currency of insurance policy from 4.11.2006 to 3.1.2007, was in continuation of her previous one day indoor treatment in Khanna Nursing Home. Complainant claimed so in his affidavit Ex.CW1/A. Second question is whether complainant ever approached opposite party, for renewal of the Universal Health insurance, which stands denied by them.

    6- On first point, we may highlight that defence of opposite party that under the insurance policy, two claims one pertaining to complainant and another to his wife, were allowed, stands established through letter Ex.C4 dated 13.6.2007, vide which opposite party intimated complainant, settling his claim for Rs.5366/-. The second communication is Ex.C6 dated 2nd August, 2007, informing the complainant that his insurance claim was settled as per guidelines of the policy and discussed with him in detail. It is the third claim qua ailment of his wife which stands repudiated by opposite party, vide letter Ex.C5, on the ground that patient has taken, as outdoor patient, treatment and was not hospitalized, so claim does not fall under the purview of the policy.


    This such plea was reiterated by opposite party vide letter Ex.C8 dated 21.12.2007, after receipt of communication Ex.C7 dated 14.12.2007 from the complainant. In order to prove that wife of complainant, was an outdoor patient, opposite party has relied on certificate Ex.R3 of Dr. Ajit Sood. Complainant claimed in his complaint that case of his wife, was referred to Dr. Ajit Sood by Dr. Khanna of Khanna Nursing Home. Hence, treatment taken from Dr. Sood, was in continuation of her admission in Khanna hospital. But there is no proof that Dr. Khanna ever referred case of wife of the complainant, to Dr. Ajit Sood. So, appears from this certificate Ex.R3 that wife complainant of her own, took treatment as outdoor patient from Dr. Sood.

    7- Opposite party vide communication Ex.R6, had also conveyed complainant that there was no continuity between treatment taken from Dr. Ajit Sood from 15.4.2007 and earlier treatment. Regarding it on record, is also report Ex.R8 of Dr. Manesh Bhatia, who was engaged by the opposite party, to investigate claim of wife of the complainant. As per this report, wife of the complainant was examined by Dr. Ajit Sood on 15.4.2007, without being referred and there is no continuity between second treatment of Khanna Nursing Home and that of Dr. Ajit Sood. Discharge summary Ex.R9 of Khanna Nursing Home, also does not suggests that they ever referred wife of the complainant, to Dr. Ajit Sood.

    8- In view of all these aspects, we have no hesitation, to conclude that complainant has failed, to prove continuity of treatment taken from Dr. Khanna, qua which claim was passed and allowed qua treatment, by opposite party, with the subsequent treatment taken from Dr. Ajit Sood. Under the insurance policy, amount spent as outdoor patient, was not payable. Therefore, opposite party was justified in repudiating the claim.

    9- Second matter is that opposite party refused to renew his medi-claim, despite sending letter of request and the cheque. Complainant has placed on the record, Ex.C2 letter dated 2.11.2007 with the request, to renew his insurance policy. But there is no proof that this letter was ever delivered by the complainant in the office of opposite party. So, can not be said that he requested for renewal of the Universal Health insurance policy, which was declined by opposite party.

    10- It was contended by complainant that documents, papers and affidavit on behalf of opposite party, have been submitted by a person, not authorized to do so. Again, there is no merit in the contention, because affidavit Ex.RW1/A is by Deputy Manager of the Regional Office of the opposite party company, who is competent to file affidavit on behalf of the company.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Bhupender Singh Arora S/o. Hira Singh r/o.136-B, Shastri Nagar, Model Town, Ludhiana.

    ….Complainant.

    Versus

    United India Insurance Company Ltd., Near Palki Restaurant, Link Road, Ludhiana through authorized signatory.

    ….Opposite party.






    O R D E R



    Complainant since 1988 had been purchasing Mediclaim policies from OP-Insurance Company. In this way, had also taken Mediclaim policy for 10.06.2006 to 09.06.2007 vide cover note no.201102/48/06/20/00000183. During continuation of this policy in Feb,2007 complainant felt restless, sleepless, as a result consulted Dr.Karunesh Gupta, Gulati ENT & allergy hospital, GTB hospital, Vijayanand Diagnostic Centre, Swami Vivekanand Hospital, Metro Diagnostic, Bansal Endocrinology & Clinical Lab. Etc., and Dr. Karunesh Gupta recommended Continuous positive Airway Pressure (herein after referred as ‘CPAP’) for avoiding serious complication and for saving his life and then consulted Safdarjang Hospital, New Delhi where he took treatment as indoor patient between 2.6.2007 and 3.6.2007 and was diagnosed as severe obstructive apnea syndrome and was given treatment.


    The operating doctor recommended CPAP being very necessary for life of the complainant. Hence complainant purchased CPAP on 07.06.2007 from P.K.Morgan (India) Ltd, New Delhi for Rs.69000/- and forwarded the claim to OP on 17.07.2007 for Rs.72690/- alongwith all necessary documents. But OP vide letter dated 23.10.2007 repudiated the claim on the ground that expenses for primarily investigations are not covered by policy under clause 4.10. This repudiation is assailed and challenged to be wrong, null, void, illegal and amounting to deficiency in service by filing this complaint under section 12 of The Consumer Protection Act, 1986. He claimed that his case does not fall under clause 4.10 of the policy, nor it was disclosed to him.

    2. OP in reply admitted obtaining Mediclaim policies by the complainant since 1988. Lodged claim under the policy and repudiating the same is also admitted. It is claimed that the claim was rightly repudiated under clause 4.1 of the policy. Because complainant was admitted primarily for the investigation which did not require hospitalization, such investigation could be carried out as an outdoor patient. Hence claim under the policy was not payable and has not been considered and rightly rejected.

    3. Both parties adduced evidence by way of affidavits and documents. We have heard the ld. counsel for the parties and gone through the entire record placed on the file.

    4. It is admitted that complainant had taken Mediclaim policy Ex.R1 valid from 10.06.2006 to 09.06.2007. During continuation of the policy complainant made claim which was repudiated by OP vide letter Ex.CA1 dated 23.10.2007 on the following ground:

    “It is observed that it is a case of obstructive sleep apnea for sleep study. As per policy conditions primarily for investigation is not covered under policy, hence claim repudiated under clause 4.10 as per Paramount Health services (p) Limited, Ldh. Letter No.PCN.1103160 dated 06.08.2007.”



    5. When claim was lodged with OP, they engaged Paramount Health services (p) Limited, Ldh., who vide letter Ex.R2 advised claim was not covered under clause 4.10 of the policy. Condition No.4.10 of the policy Ex.R1 reads as under:

    “ 4.10 Charges incurred at Hospital or Nursing Home primarily for diagnosis, X-ray or Laboratory examinations or other diagnostic studies not consistent with or incidental to the diagnosis and treatment of positive existence of presence of any ailment, sickness or injury, for which confinement is required at a Hospital/Nursing Home.”



    6. Thus under the contract of policy the charges incurred in the hospital primarily for diagnosis, x-ray, Lab examination or other diagnosis studies not consistent with or incidental to the diagnosis and treatment of positive existence or presence of any ailment, sickness or injury are not payable. Therefore, question is whether claim lodged by the complainant for purpose of CPAP vide invoice Ex.C5 dated 07.06.2007 for Rs.69000/- was for purposes of diagnosis or other studies which could have been carried without complainant being admitted into any medical institution. Complainant in support of his plea, that purchase of CPAP was necessary as a life supporting machine to live proper life, otherwise without it his life would have been endangered, relied on certificate Ex.C4 of Dr.J.C.Suri of the department of Pulmonary, Safdarjung hospital, New Delhi, Doctor in that certificate observed as under:



    “This is to certify that Mr.Bhupinder Singh Arora, adult male is suffering from severe obstructive apnea syndrome. This condition if not treated early and effectively may be life threatening. He needs to use nasal CPAP (Continuous Positive Airway Pressure) machine for the proper control of his illness. An auto-CPAP may be more suitable for him.”

    7. It is clear from the certificate that complainant was suffering from apnea syndrome and in such condition no treatment could have endangered his life. He was recommended CPAP machine for proper control of his illness.

    8. Hon’ble State Consumer commission, New Delhi in a case The New India Assurance Co.Ltd. Vs. Sh.Shiv Kumar Rupramka Appeal No.700/2002 decided on 22.03.2007 had an occasion to conclude whether expenses incurred upon machine known as C-PAP are reimbursable or not ? The Hon’ble Delhi Commission held that CPAP is a life saving machine to control the disease and cost of the same is reimbursable. Because use of such a machine was found essential in treatment of the disease. Hon’ble commission also found that CPAP system is an equipment like pace maker or any other such equipment without which there is no cure or any relief from the disease that respondent was suffering from.

    9. In the instant case also use of CPAP machine for proper healthy life of the complainant was necessary, without use of such machine his condition and ailment would have worsened. Therefore, conclusion of OP that use of the machine was for diagnosis or other test is not justified. The case of the complainant is not at all covered under condition of clause 4.10 of the policy Ex.R1. Because he is not proved to have incurred charges for treatment of machine primarily for diagnosis or examination purpose. Rather the machine was purchased to save his own life as recommended by doctor.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Ram Singh aged 45 years, s/o Naranjan Singh r/o Village & Post Office: Badala, Tehsil and Distt. Amritsar at present r/o village Dhoot Kalan, Block Bhunga, Tehsil and District Hoshiarpur.


    .......... Complainant

    versus


    1.

    United India Insurance Co. Ltd., G.T. Road, Dasuya, Distt. Hoshiarpur, through its Branch Manager.
    2.

    ICICI Bank Ltd., Ist Floor, 36, The Mall, Amritsar, through its Branch Manager.

    ........... Opposite Parties





    1.

    The complainant namely Ram Singh has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “herein after referred as the Act”. Stated briefly, the facts of the case are that the vehicle bearing registration No. PB02-AR-9946 was under HPA through OP No. 2. That OP No. 2 got insured the said vehicle from OP No. 1 – United India Insurance Co. Ltd.
    2.

    It is the allegation of the complainant that on 26.1.2007, the said vehicle was being driven by Sh. Jaswant Singh from Bhunga to Hoshiarpur.That when the said vehicle reached near village Abbowal, it met with an accident with tractor trolley. The driver, Jaswant Singh was holding a valid driving licence. The vehicle was badly damaged in the accident. The matter was reported to PS Hariana on 31.1.2007. The complainant also informed the opposite party about the accident. The opposite party deputed the surveyor.
    3.

    It is further the case of the complainant that he got repaired the said vehicle from Basra Sales Corporation and Manohar Auto Diesel and Electricals. M/s. M.L. Mehta & Company, the surveyor assessed the net loss to the tune of Rs. 58,216.73, whereas the complainant had spent the amount of Rs. 1,13,822/- on the repair of the vehicle. The detail of the amount spent upon the repair of the vehicle had been given vide para No. 4 of the complaint.
    4.

    It is the allegation of the complainant that the opposite party No. 1 had not allowed the payment of the actual loss. It is prayed that the OP No. 1 may be directed to pay Rs. 1,13,822/- alongwith interest and litigation costs.
    5.

    The OP No. 1 filed the reply. The preliminary objections vis-a-vis maintainability, pre-mature, suppression of material facts and cause of action were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that the vehicle No. PB-02-AR-9946 was insured with the replying OP. It is denied that the accident took place on 26.1.2007. That DDR No. 8 dated 31.1.2007 is a result of manipulation with the police of PS Hariana to get the false claim. It is denied that the replying OP allowed the complainant to get the vehicle repaired.
    6.

    It is further replied that the preliminary survey was conducted by Mr. Sham Sunder Sharma, who submitted his report dated 21.2.2007, and thereafter, a final survey report dated 20.9.2007 was obtained from M.L. Mehta and Co., Surveyor and Loss Assessors, who after considering the estimate bills of M/s. Basra Sales Corporation, Jalandhar and M/s. Bachan Brothers, Denting Works, Jalandhar, assessed the loss to the tune of Rs. 58,216.73. It is denied that the complainant has spent the amount of Rs. 1,13,822/- on the repair of the vehicle. It is denied that the complainant got the vehicle repaired from M/s. Basra Sales Corporation and Manohar Auto Diesel and Electricals. The bills as per detail given under Sr. No. (i) to (x) in para No. 4 of the complaint had not been submitted to the replying OP at the time of assessment of the loss to the vehicle. The other alleged bills mentioned under Sr. No. (i) to (x) in para No. 4 of the complaint regarding repair had been manipulated to get false claim.
    7.

    The OP No. 2 was proceeded against ex-parte on 18.3.2009.
    8.

    In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, copy of insurance policy – Mark-A, survey report dated 20.9.2007 – Ex. C-2, copy of RC – Mark-B, original cheque dated 15.1.2009 – Ex. C-3, another cheque dated 15.1.2009 – Ex. C-4, DDR dated 31.1.2007 – Ex. C-5, copy of DL dated 9.3.2006 – Mark-C, bill dated 1.10.2008- Mark-D, bills – Mark-E, Mark-F, bill dated 3.1.2009 – Mark-G, bills dated 3.9.2008 – Mark-H, Mark-J, bill dated 31.3.2009 – Mark-K, bills dated 17.4.2007 – Mark-L, Mark-M, Mark-N, bill dated 2.1.2009 – Mark-O, bill dated 20.3.2007 – Mark-P, bill dated 8.4.2007 – Mark-Q, bill dated 3.4.2007 – Mark-R, receipt of Parking charges – Mark-S, Fee for survey – Mark-T, Labour charges – Mark-U, affidavit of Sh. Harish Kumar – Ex. C-6 and closed the evidence.
    9.

    In rebuttal, the OP No. 1 tendered in evidence affidavit of Ashwani Verma – Ex. OP-2, additional affidavit of Ashwani Verma- Ex. OP-3, Motor Survey report dated 21.2.2007 – Mark OP-4 (3 sheets), estimate of Basra Sales Corporation – Mark OP-5 (4 sheets), estimate of Bachan Brothers – Mark OP-6 (2 sheets), photocopy of DDR – Mark OP-7, letter dated 29.1.2009 – Mark OP-8 and closed the evidence on behalf of OP NO. 1.
    10.

    The learned counsel for the complainant and OP No. 1 filed written arguments. We have gone through the written submissions and record of the file minutely.
    11.

    The other facts are admitted. The complainant has claimed that OP No. 1 may be directed to pay Rs. 1,13,822/- alongwith interest and litigation costs, whereas OP No. 1 – Insurance Company had raised the plea that the surveyor has assessed the net loss to the tune of Rs. 58,216.73. Therefore, the only point which calls determination from this Court is whether the complainant is entitled for the amount of Rs. 1,13,822/- or Rs. 58,216.73?
    12.

    The OP No. 1 filed the written arguments. That vide Para No. 4, at Page No. 4 of the written arguments, the OP No. 1 had stated that they are ready to pay the amount assessed by the Surveyor qua Survey Report – Ex. OP-1 dated 20.9.2007 subject to deduction of Rs. 2,500/-, the value of salvage.
    13.

    The complainant has produced on record the Invoices/Bills – Mark-D to Mark-H, Mark-J to Mark-R. Admittedly, the complainant has neither produced on record the receipts nor the affidavits of the persons to whom the payment was made to prove the actual payment, therefore, it loses its evidentiary value and on the contrary, the OP-1 has placed on record the report of the M/s. M.L. Mehta & Co., the surveyor & loss assessor – Ex. OP-1, qua which the nett. loss to the vehicle in dispute had been assessed to the tune of Rs.58,216.73.


    Since the complainant has failed to produce the receipts to prove the payment of Rs.1,13,822/-, therefore,the report of the Surveyor qua Ex. OP-1 is to be accepted as the Surveyor is an expert and also an independent person to assess the damage caused to the vehicle of the complainant , thus, we are of the opinion that the claim of the complainant can be allowed on the basis of the Survey Report – Ex. OP-1.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Sushma Tiwari, 63 years, widow of Late Sh. Naresh Tiwari, resident of Gali No. 9, Krishan Nagar, Bal Krishan Road, Hoshiarpur, Tehsil and District Hoshiarpur.


    ...... Complainant

    versus


    1.

    United India Insurance Co. Ltd., Jalandhar Road, Hosharpur, through its Divisional Manager.
    2.

    United India Insurance Co. Ltd., SCO 58-59, Ist Floor, Sector 34-A, Chandigarh, through its Branch Manager, Mr. Vineet Sian.
    3.

    Grievance Department (Insurance), SCO: 123-124, Sector 17-B, Chandigarh, through its Deputy Manager.

    ...... Opposite Parties






    1.

    The complainant namely Sushma Tiwari has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the brother-in-law of the complainant got insurance policy under “The Family Health Plan”for himself and his family members including the complainant by paying the premium on 14.9.2005, 11.9.2006, 12.9.2007 and 12.9.2008.
    2.

    It is the case of the complainant she is widow and has no source of income, as such she is dependent upon her brother-in-law, Mr. Yogesh Tiwari and his family. It is the case of the complainant that OP No. 1 at the time of first insurance included the name of the complainant, as his family member and it continued till 12.9.2008.
    3.

    It is the allegation of the complainant that on 12.9.2008, the opposite parties with an ulterior motive separated her name without giving any reason. That the health insurance plan of the complainant is running in its fourth year. The complainant is paying the premium to the opposite parties regularly.

    4.

    It is further the case of the complainant that she filed her first medical claim under policy No. 110500/48/07/12/00308 with the opposite parties, to which the opposite parties raised the objection, but after filing the reply by the brother-in-law of the complainant, the medical claim was released. That the complainant again got admitted in Hospital for her treatment. The complainant filed her medical claim of Rs. 8368/-, but the opposite parties only released the amount of Rs. 7800/- in the month of January, 2009.
    5.

    It is the grouse of the complainant that OP No. 1 sent a letter dated 16.1.2009, whereby her insurance policy was cancelled without any explanation or reason. It is further the allegation of the complainant that the insurance company accepted the insurance premium from 14.9.2008 to 13.9.2009. The complainant approached OP No. 1, with the request to disclose the reason of cancellation of the policy, but of no consequences. The complainant also sent registered letter dated 28.1.2009 to the opposite parties.


    The OP No. 1 sent a letter dated 27.1.2009, which was received by the complainant on 31.1.2009. The complainant made several requests to OP No. 1, but the insurance company had failed to give the reason for cancellation of the insurance policy. It is further averred that the opposite party No. 1 sent letter dated 17.2.2009 qua which the objection with regard to the mis-representation and age were raised. The complainant replied the said letter and submitted the photocopy of her passport, ration card and voter ID for clarification. However, the insurance company failed to continue the policy of the insurance. The complainant again approached OP No. 1, but there was no satisfactory reply, hence this complaint.
    6.

    The opposite parties filed the joint reply. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant has admitted her age as 67 years in her letter dated 28.1.2009. The complainant had given monthly income in the Proposal Form as Rs. 10,000/-. It is further replied that the complainant was one of the policy holders in the policy issued in the name of Yogesh Tiwari, valid upto 12.9.2008. The complainant was paid a claim of Rs. 27,042/- under the said policy.
    7.

    It is further replied that on 12.9.2008, the complainant got a fresh policy by concealing material facts and giving wrong information. The complainant did not disclose about the earlier policies and the claim received under the said policies. It is further replied that on receiving a claim from the complainant, under the present policy, the earlier policies came to the notice of the replying opposite parties. It transpired the complainant suffered heart attack in December, 2007 and she was also suffering from diabetes since December, 2007. The fact of suffering heart attack as well as diabetes was not disclosed in the Proposal Form. The complainant has only stated that she got cardiology treatment on 18.2.2008. Thus, after settling the claim of the complainant, the policy was cancelled on the ground of non-disclosure of material facts and misrepresentations vide letter dated 16.1.2009.
    8.

    It is further replied that on receipt of representation from the complainant against the cancellation of policy, a letter dated 17.2.2009 was sent qua which the reason for cancellation was disclosed and she was advised as under :

    “If you want insurance from us, come with clean hands by giving correct age proof, previous medical history/disease, if any, to enable us to process your proposal for quoting correct rate and also short premium from the previous policies.”

    9.

    It is denied that the replying opposite parties separated the policies of the complainant with any ulterior motive, as alleged. It is further replied that the complainant got a fresh policy issued by filling a fresh proposal form in order to conceal her previous ailments and claim under the previous policies. The fresh policy has not been issued in continuation of the earlier joint policies. However, it is admitted that under the current policy, the claim of the amount of Rs. 27,042/- has been allowed to the complainant. The said claim was made on 13.10.2008 and was paid on 15.1.2009. It is admitted that the policy was cancelled vide letter dated 16.1.2009 because of misrepresentation/non-disclosure of material facts. The complainant never approached the opposite parties for issuance of fresh policy after giving correct particulars, as requested vide letter dated 17.2.2009.
    10.

    In order to prove the case, the complainant tendered in evidence her affidavit – Ex. C-1, copy of passport of complainant – Mark C-2 (3 sheets), copy of statement of account – Mark C-3 (2 sheets), policy of insurance/cover notes – Ex. C-5 to Ex. C-7, I-Card of Voter – Mark C-8, postal receipt – Ex. C-9, letter dated 28.1.2009 – Ex. C-10, letter dated 16.1.2009 – Ex. C-11, letter dated 27.1.2009 – Ex. C-12, receipts of post – Ex. C-13 and Ex. C-14, letters dated 7.2.2009 – Mark C-15, Mark C-16, letter dated 17.4.2008 – Ex. C-17, letter dated 17.2.2009 – Ex. C-18, policy of insurance – Ex. C-19, other policy – Ex. C-20, letter dated 16.4.2008 – Ex. C-21 and closed the evidence.
    11.

    In rebuttal, the opposite parties tendered in evidence affidavit of Sh. S.K. Aggarwal – Ex. OP-1, Proposal Form – Mark OP-2, letter dated 17.2.2009 – Mark OP-3, letter by the complainant – Mark OP-4, letter dated 27.1.2009 – Mark OP-5, letter dated 16.1.2009 – Mark OP-6, investigation report – Mark OP-7, Policy conditions – Mark OP-8 and closed the evidence on behalf of the opposite parties.
    12.

    The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
    13.

    The complainant has filed the present complaint with the prayer that the opposite parties may be directed to continue the policy for the year 2008-09. Besides this, there is a prayer for damages and litigation costs.
    14.

    The opposite parties have raised the plea of concealment of material facts and misrepresentation, as the complainant has admitted her age as 67 years in her letter dated 28.1.2009 – Ex. C-10. The complainant had given monthly income in the Proposal Form as Rs. 10,000/-, whereas, in Para No. 1 of the complaint, the complainant has alleged that she has no source of income. The complainant did not disclose about the earlier policies and the claim received under thereunder. The complainant has also not stated in the Proposal Form – Mark OP-2 with regard to the heart attack as well as diabetes in December, 2007.
    15.

    The opposite parties had admitted that the complainant was one of the policy holder in the policies issued in the name of Yogesh Tiwari. It is also admitted that the complainant was paid a claim of Rs. 27,042/- under the said policy.
    16.

    The learned counsel for the opposite parties argued that on 12.9.2008, the complainant got a fresh policy issued in her name by concealing the material facts regarding the previous policies and her health, and also with regard to heart attack and diabetes in December, 2007, as such the insurance policy was cancelled on account of non-disclosure of material facts and misrepresentations. It was argued that the letter dated 7.2.2009 – Mark C-15 was written to the complainant, wherein reasons for cancellation of the policy were given and she was advised that she may get fresh policy issued after disclosing all the facts.
    17.

    It was further argued that the complainant has denied vide column No. 10 of the Proposal Form – Ex. OP-2 regarding her insurance under any prior policy. Qua Mark OP-7, Dr. V.P. Sharma, has certified that the complainant suffered heart attach in December, 2007 and he was also suffering from diabetes in December, 2007. It was further argued that the complainant has admitted vide para No. 4 of the complaint that she had received the claim under the earlier policy, consequently, vide letter dated 16.1.2009 – Mark OP-6, the policy was cancelled with effect from 22.1.2009. It was submitted that the complainant wrote a letter dated 28.1.2009, wherein she has mentioned her age to be 67 years and made a request for the reasons for cancellation of the insurance policy, which was furnished vide letter dated 17.2.2009 – Mark OP-3.
    18.

    The terms and conditions of the insurance policy had been produced on record as Ex. OP-8. Under the terms of the insurance policy, the insurance company had rightly cancelled the policy and similar right has been given to the insured also. The policy obtained by concealment of material facts is void and can be cancelled at any time.
    19.

    Admittedly, the complainant has prayed that the opposite parties may be directed to continue the policy for the year 2008-2009 and besides this, has prayed for compensation and litigation costs.
    20.

    The present policy – Ex.C-7 was cancelled on 22.1.2009. The said policy commenced on 14.9.2008 and was to be continue till 13.9.2009. Since the policy has been cancelled on 22.1.2009, therefore, the complainant is entitled for the premium amount from 22.1.2009 to 13.9.2009 alongwith interest. Admittedly, the said policy was to continue till 13.9.2009, therefore, no fruitful purpose will be served,if direction to the opposite parties is given to continue the said policy till 13.9.2009, as the order is being pronounced on 1.9.2009.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Sushma Tiwari, 63 years, widow of Late Sh. Naresh Tiwari, resident of Gali No. 9, Krishan Nagar, Bal Krishan Road, Hoshiarpur, Tehsil and District Hoshiarpur.


    ...... Complainant

    versus


    1.

    United India Insurance Co. Ltd., Jalandhar Road, Hosharpur, through its Divisional Manager.
    2.

    United India Insurance Co. Ltd., SCO 58-59, Ist Floor, Sector 34-A, Chandigarh, through its Branch Manager, Mr. Vineet Sian.
    3.

    Grievance Department (Insurance), SCO: 123-124, Sector 17-B, Chandigarh, through its Deputy Manager.

    ...... Opposite Parties






    1.

    The complainant namely Sushma Tiwari has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the brother-in-law of the complainant got insurance policy under “The Family Health Plan”for himself and his family members including the complainant by paying the premium on 14.9.2005, 11.9.2006, 12.9.2007 and 12.9.2008.
    2.

    It is the case of the complainant she is widow and has no source of income, as such she is dependent upon her brother-in-law, Mr. Yogesh Tiwari and his family. It is the case of the complainant that OP No. 1 at the time of first insurance included the name of the complainant, as his family member and it continued till 12.9.2008.
    3.

    It is the allegation of the complainant that on 12.9.2008, the opposite parties with an ulterior motive separated her name without giving any reason. That the health insurance plan of the complainant is running in its fourth year. The complainant is paying the premium to the opposite parties regularly.

    4.

    It is further the case of the complainant that she filed her first medical claim under policy No. 110500/48/07/12/00308 with the opposite parties, to which the opposite parties raised the objection, but after filing the reply by the brother-in-law of the complainant, the medical claim was released. That the complainant again got admitted in Hospital for her treatment. The complainant filed her medical claim of Rs. 8368/-, but the opposite parties only released the amount of Rs. 7800/- in the month of January, 2009.
    5.

    It is the grouse of the complainant that OP No. 1 sent a letter dated 16.1.2009, whereby her insurance policy was cancelled without any explanation or reason. It is further the allegation of the complainant that the insurance company accepted the insurance premium from 14.9.2008 to 13.9.2009. The complainant approached OP No. 1, with the request to disclose the reason of cancellation of the policy, but of no consequences. The complainant also sent registered letter dated 28.1.2009 to the opposite parties. The OP No. 1 sent a letter dated 27.1.2009, which was received by the complainant on 31.1.2009.


    The complainant made several requests to OP No. 1, but the insurance company had failed to give the reason for cancellation of the insurance policy. It is further averred that the opposite party No. 1 sent letter dated 17.2.2009 qua which the objection with regard to the mis-representation and age were raised. The complainant replied the said letter and submitted the photocopy of her passport, ration card and voter ID for clarification. However, the insurance company failed to continue the policy of the insurance. The complainant again approached OP No. 1, but there was no satisfactory reply, hence this complaint.
    6.

    The opposite parties filed the joint reply. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant has admitted her age as 67 years in her letter dated 28.1.2009. The complainant had given monthly income in the Proposal Form as Rs. 10,000/-. It is further replied that the complainant was one of the policy holders in the policy issued in the name of Yogesh Tiwari, valid upto 12.9.2008. The complainant was paid a claim of Rs. 27,042/- under the said policy.
    7.

    It is further replied that on 12.9.2008, the complainant got a fresh policy by concealing material facts and giving wrong information. The complainant did not disclose about the earlier policies and the claim received under the said policies. It is further replied that on receiving a claim from the complainant, under the present policy, the earlier policies came to the notice of the replying opposite parties. It transpired the complainant suffered heart attack in December, 2007 and she was also suffering from diabetes since December, 2007. The fact of suffering heart attack as well as diabetes was not disclosed in the Proposal Form. The complainant has only stated that she got cardiology treatment on 18.2.2008. Thus, after settling the claim of the complainant, the policy was cancelled on the ground of non-disclosure of material facts and misrepresentations vide letter dated 16.1.2009.
    8.

    It is further replied that on receipt of representation from the complainant against the cancellation of policy, a letter dated 17.2.2009 was sent qua which the reason for cancellation was disclosed and she was advised as under :

    “If you want insurance from us, come with clean hands by giving correct age proof, previous medical history/disease, if any, to enable us to process your proposal for quoting correct rate and also short premium from the previous policies.”

    9.

    It is denied that the replying opposite parties separated the policies of the complainant with any ulterior motive, as alleged. It is further replied that the complainant got a fresh policy issued by filling a fresh proposal form in order to conceal her previous ailments and claim under the previous policies. The fresh policy has not been issued in continuation of the earlier joint policies. However, it is admitted that under the current policy, the claim of the amount of Rs. 27,042/- has been allowed to the complainant. The said claim was made on 13.10.2008 and was paid on 15.1.2009. It is admitted that the policy was cancelled vide letter dated 16.1.2009 because of misrepresentation/non-disclosure of material facts. The complainant never approached the opposite parties for issuance of fresh policy after giving correct particulars, as requested vide letter dated 17.2.2009.
    10.

    In order to prove the case, the complainant tendered in evidence her affidavit – Ex. C-1, copy of passport of complainant – Mark C-2 (3 sheets), copy of statement of account – Mark C-3 (2 sheets), policy of insurance/cover notes – Ex. C-5 to Ex. C-7, I-Card of Voter – Mark C-8, postal receipt – Ex. C-9, letter dated 28.1.2009 – Ex. C-10, letter dated 16.1.2009 – Ex. C-11, letter dated 27.1.2009 – Ex. C-12, receipts of post – Ex. C-13 and Ex. C-14, letters dated 7.2.2009 – Mark C-15, Mark C-16, letter dated 17.4.2008 – Ex. C-17, letter dated 17.2.2009 – Ex. C-18, policy of insurance – Ex. C-19, other policy – Ex. C-20, letter dated 16.4.2008 – Ex. C-21 and closed the evidence.
    11.

    In rebuttal, the opposite parties tendered in evidence affidavit of Sh. S.K. Aggarwal – Ex. OP-1, Proposal Form – Mark OP-2, letter dated 17.2.2009 – Mark OP-3, letter by the complainant – Mark OP-4, letter dated 27.1.2009 – Mark OP-5, letter dated 16.1.2009 – Mark OP-6, investigation report – Mark OP-7, Policy conditions – Mark OP-8 and closed the evidence on behalf of the opposite parties.
    12.

    The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
    13.

    The complainant has filed the present complaint with the prayer that the opposite parties may be directed to continue the policy for the year 2008-09. Besides this, there is a prayer for damages and litigation costs.
    14.

    The opposite parties have raised the plea of concealment of material facts and misrepresentation, as the complainant has admitted her age as 67 years in her letter dated 28.1.2009 – Ex. C-10. The complainant had given monthly income in the Proposal Form as Rs. 10,000/-, whereas, in Para No. 1 of the complaint, the complainant has alleged that she has no source of income. The complainant did not disclose about the earlier policies and the claim received under thereunder. The complainant has also not stated in the Proposal Form – Mark OP-2 with regard to the heart attack as well as diabetes in December, 2007.
    15.

    The opposite parties had admitted that the complainant was one of the policy holder in the policies issued in the name of Yogesh Tiwari. It is also admitted that the complainant was paid a claim of Rs. 27,042/- under the said policy.
    16.

    The learned counsel for the opposite parties argued that on 12.9.2008, the complainant got a fresh policy issued in her name by concealing the material facts regarding the previous policies and her health, and also with regard to heart attack and diabetes in December, 2007, as such the insurance policy was cancelled on account of non-disclosure of material facts and misrepresentations. It was argued that the letter dated 7.2.2009 – Mark C-15 was written to the complainant, wherein reasons for cancellation of the policy were given and she was advised that she may get fresh policy issued after disclosing all the facts.
    17.

    It was further argued that the complainant has denied vide column No. 10 of the Proposal Form – Ex. OP-2 regarding her insurance under any prior policy. Qua Mark OP-7, Dr. V.P. Sharma, has certified that the complainant suffered heart attach in December, 2007 and he was also suffering from diabetes in December, 2007. It was further argued that the complainant has admitted vide para No. 4 of the complaint that she had received the claim under the earlier policy, consequently, vide letter dated 16.1.2009 – Mark OP-6, the policy was cancelled with effect from 22.1.2009. It was submitted that the complainant wrote a letter dated 28.1.2009, wherein she has mentioned her age to be 67 years and made a request for the reasons for cancellation of the insurance policy, which was furnished vide letter dated 17.2.2009 – Mark OP-3.
    18.

    The terms and conditions of the insurance policy had been produced on record as Ex. OP-8. Under the terms of the insurance policy, the insurance company had rightly cancelled the policy and similar right has been given to the insured also. The policy obtained by concealment of material facts is void and can be cancelled at any time.
    19.

    Admittedly, the complainant has prayed that the opposite parties may be directed to continue the policy for the year 2008-2009 and besides this, has prayed for compensation and litigation costs.
    20.

    The present policy – Ex.C-7 was cancelled on 22.1.2009. The said policy commenced on 14.9.2008 and was to be continue till 13.9.2009. Since the policy has been cancelled on 22.1.2009, therefore, the complainant is entitled for the premium amount from 22.1.2009 to 13.9.2009 alongwith interest. Admittedly, the said policy was to continue till 13.9.2009, therefore, no fruitful purpose will be served,if direction to the opposite parties is given to continue the said policy till 13.9.2009, as the order is being pronounced on 1.9.2009.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Jagdish Lal Bhatla s/o Sh. Raja Ram r/o Model Colony, Banga Tehsil and Distt. SBS Nagar. ….Complainant.

    Versus



    1. United India Insurance Company Limited, Banga Road, Nawanshahr Tehsil & Distt. SBS Nagar.

    2. Heritage Health Services Pvt. Ltd. 1102 Raheja Chambers Free Press, Journal, Nariman Point, Mumbai-400021.

    ….Respondents




    O R D E R

    Present complaint has been filed by the complainant Jagdish Lal Bhatla U/s 12 of the Consumer Protection Act (hereinafter referred as the Act) against United India Insurance Company Limited, Banga Road, Nawanshahr Tehsil & Distt. SBS Nagar.


    Admitted facts of the case are that the complainant had obtained overseas Medical Claim Insurance Policy No.110502/46/05/08027 Valid from20/07/2005 to 16/01/2006 from Op no.1 the same was registered with Op no.2. It is alleged that while in Australia, the complainant suffered a heart attack on 17-09-2005 and was treated for the said ailment in Australia. On his return from Australia he submitted his claim for Rs 16 lac as medical expenses to Op No.1 and the same was forwarded to the OP No.2; that all the required documents and information were sent to Op No.2 from time to time but to his surprise the Op no.2 repudiated his claim by a letter dated 28-08-2007 on flimsy and untenable grounds like that the complainant had suppressed the fact of pre-existing diease at the time of obtaining the insurance policy.


    It has been alleged that the OP No.1 & 2 have taken an evasive ground to discharge their liability. The complainant has alleged that he has been made to suffer unwarranted and uncalled for harassment from the Ops. Hence it is prayed to direct the Ops not only to pay the actual medical expenses i.e Rs.16 lacs (Sixteen Lacs) incurred in the treatment of the complainant but also to pay Rs.1 lac as compensation; both along with the interest @ 2 percent PA from the date of submission of the claim till its payment.



    2. In response to the notice the ld counsel for the Op Sh. P.K. Dhir, advocate, in the written statement contended that the complainant has not come to the Forum with clean hands and has suppressed the true and material facts from the Forum as he has not disclosed the pre-existing diease at the time of the obtaining the policy.


    The learned counsel has also taken a preliminary objection that the complaint is not within time. On merits the learned counsel of the Ops reiterated his stand that the complainant has violated the terms and conditions of the insurance policy i.e. as per the general condition of the policy 10 (C) pre-existing diease “any sickness for which the ensured person has sought any medical advice or has taken medical treatment in the preceding 12 months prior to be commencement of travel”. The complainant has breached this condition by hiding his pre-existing diease which is evident from doctor's remarks in the Saint Vincent's Hospital in Australia wherein it is mentioned "that the complainant was 65 years old gentlemen, admitted for cardiac catheterization; and he has a history of non insulin requiring diabetes and a six month history of extertional chest of discomfort breathlessness.


    His recent stress was positive with infer oposterior wall ischemka; that the complainant has several proximal 3 vessal coronary artery disease with well preserved left ventricular systolic function and he is suffering of left main conronary artery." Therefore, it has been contended that the complainant obtained O.M.C. insurance policy on 20-07-2009 and suffered heart attack on 17-09-2005 that he did not disclose the ops pre-existing disease of heart attack and diabetes as required under the policy conditions. The Ops have further contended that the complainant is not entitled for any claim or any interest due to violation terms and conditions of the policy in question, therefore prayed to dismiss the complaint with costs etc.

    3. To prove his allegations Sh.J.D. Jain, advocate, counsel for the complainant tendered in his evidence affidavit of the complainant Ex CA, along with documents Ex C1 to Ex C42.

    4. To rebut the complainant’s evidence Sh.P.K. Dhir, advocate, counsel for the OPs tendered his evidence Ex R1 affidavit of Sh.T.N. Puri Branch Manager UIIC, Ex R-2 Letter of Dr. Vijay Solanki, Ex R-3 letter of Heritage Health Service, Ex R-4 Treatment Record, Ex R-5 report of Dr. Ashok Kunnure, Ex R-6 Insurance Policy, Ex R-7 is Insurance Cover Note, Ex R-8 Proposal Form, Ex R-9 report of Dr. Phillip Spratt, Ex R-10 Progress Notes Report and closed the evidence.



    5. We have heard the arguments by both the Learned Counsels, for the complainant, Sh. J.D. Jain, advocate; and Sh. P.K. Dhir, advocate counsel for the Ops & closely considered the case record.

    6. The ld counsel for the Ops Sh.P.K. Dhir Advocate argued that claim has been rightly repudiated as the complainant has concealed the material facts from the Op No. 1 at the time of the Insurance as he did not disclose pre-existing heart diease at the time of obtaining policy; To prove his stand, Ld counsel for the Ops has also drawn our attention to a piece of evidence Ex.R-2 i.e. which is letter from Professor David Muller, Director Cardiac Cathetersation Laboratories wherein the Doctor has specifically mentioned “that....... for referring 65 years old gentleman for cardiac a history........"etc.


    They have also relied upon Ex.R-4 wherein it has been specifically pointed out in the column of ‘chest pain or enzyna’ positive and diabetes also as ‘YES’ positive. Besides in this respect our attention has been drawn to certain case laws like Manju Bala Vs Branch Manager, Life Insurance Corporation of India & Ors- 43,2009 (1) Diwan Surender Lal VS Oriental Insurance Company Ltd & Anr. CPC, 242, 2009 (1) CPC, LIC Vs. Sharda Devi 527 2009 (1) CPC, Kapil Rai Singhani Vs Life Insurance Corporation of India 735 2009 (1) CPC etc wherein the repudiation claim of the insurance companies have been upheld due to suppression of material facts from the insurance company at the time of the insurance..

    On the other hand the ld counsel for the complaint Sh.J.D. Jain vehemently argued that the Ops have failed to produce any cogent evidence to prove the pre-existing decease. Regarding Ops' reliance on Ex.R-4, it has pin pointed on this piece of evidence in the column of "chest pain, angina" and ‘diabetes how its controlled’ and has alleged that the Ops have intentionally tempered with this document to prove their stand; to support this allegation our attention has been drawn towards Ex.R-8 the proposal form for Overseas Medical Policy-B, where in asserting that had the complaint been suffering from any pre-existing disease the same could easily had been deducted by various tests; and further that their own contention of pre-existing disease stands falsified by this very piece of evidence i.e. Ex.R-8 which is statement by the medical/specialist expert of the Op Company Dr.D.K. Sood, where in no negative remarks had been noted by specialist doctors

    7. Admittedly the complainant obtained overseas medi-claim insurance policy No. 110502/46/05/08027 valid from 20/07/2005 to 16/01/2006. The policy was issued by OP 1 & registered by OP 2; that the complainant suffered a heart attack on 17/09/2005 & was treated for this ailment in Australia. On his return supplied all the documents required along with his claim form to the Insurance Company-the OP. Nos. 1&2. However the OP. No. 2 vide letter dated 28/08/2007 Ex.R3 repudiated the said claim on the basis of the specific exclusion clause of the policy, “all medical expenses incurred directly due to past history aliments……..”etc.


    Perusal of most significant piece of evidence on record Ex R- 4 for reveals the medical history--- all columns marked correct/ticks--- with little tempering of two columns- ‘chest pain/enigma’—originally marked tick i.e. later on attempted to efface the under column ‘no’ and marked tick under ‘yes’; similar attempt has been made in ''diabetes & how it is controlled" column of Ex.R-4.


    It is alleged this temperance of this document could be an after thought exercise, on seeing the Ex. R2 letter of Prof. David Muller directed to Dr. Vijay Solanki ………. Dated 31.10.2005 where in the Dr. David Muller has remarked, "He has a history of non insulin requiring diabetes.........." Appreciating learned counsel for the complainant's reliance on case law cited as 2009 (1) (PU-16) NC we are also of the view that just a doctor’s letter to another in Australia without a supporting affidavit of a Prof. David Muller in Australia is not sufficient to prove that the complainant had hidden his pre-existing disease.


    Moreover Ops Ex.R8 the proposal form for Overseas Medi-claim Policy Clause-B rather strengthens complainant's arguments that had he been suffering from any pre-existing diease that could surely be judged from the blood tests or other diagnosis undertaken by the DR. K.Sood an expert Dr. very much on the penal of the doctors of the Ops. Relevant column of this piece of evidence are reproduced as under: -

    11. Medical history

    (A) TO BE COMPLETED BY THE PROPOSER

    PLEASE ANSWER THE FOLLOWING QUESTIONS WITH ‘YES’ OR ‘NO’ (A DASH IS NOT SUFFICIENT) AND GIVE FULL DETAILS:-

    1. Are you in good health and free from

    Physical and mental disease or infirmity _________Yes___________

    2. Have you ever suffered from any illness or

    Disease upto the date of making this proposal ______No___________

    3. Do you have any physical defect or deformity ______No__________

    4. Have you ever been admitted to any hospital

    Nursing home/clinic for treatment or observation ____No__________

    5. Have you suffered from any illness/disease

    Or had an accident in the 12 months preceding

    the first day of insurance. _________No_________

    6. If the answer is ‘yes’ to any of the foregoing

    questions please give full details as under: _______NA____________

    Nature of illness/disease/injury & treatment received


    Date on which first treatment taken


    First treatment completed/is continuing


    Name of attending medical practitioner/ Surgeon with his address & Tel. Nos.


















    N.A.






    (B) Clauses 1.2 3 & 4 supposed to be completed by the expert doctor& final observation ‘yes fit’; duly signed by the said doctor, are all sufficient to enable us to accept complaint's contentions.

    In the light of the record on file we observe that a simple letter by one treating doctor to another in the absence of that doctor’s affidavit fail to prove that the complainant had taken the policy by with holding/by misrepresenting the material fact of pre-existing disease in the proposal form. Moreover no importance can be given to the policy condition 10 (c) i.e. exclusive clause as the Ops have failed to produce any documents indicating hospitalization or outdoor treatment for any disease like angina or diabetes prior to the commencement of the policy dated 20/07/2005 our view in supported by the observations by the Hon’ble National Commission in Praveen Dhamani VS Oriental Insurance Co. Ltd IV (2006) CPJ 189 (NC) " The policy which states that it is not material whether the insured had knowledge of the disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the insurance Company to disown the liability.


    If this interpretation is upheld, the insurance Company is not liable to pay any claim, whatsoever because every person suffers from symptoms of any disease without the knowledge of the same. this policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bona fide intention of giving. People are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the insurance company relies on their clause 4.1 of the policy in a mala fide manner to repudiate all the claims.


    No claim is payable under the medi-claim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom, if this is so every person should do medical studies and further not take any insurance policy”. Even on the face of record, there is no material to show that petitioner had any symptoms like chest pain, etc.


    prior to 11-08-2000 Since there were no symptoms so the question of linking up the symptoms with a disease does not arise. In any case, it is the contention of the complainant that he was thoroughly checked up by the doctors who were nominated by the Insurance Company and at that time he was found hale and hearty. In such set of circumstances, it would be difficult to arrive at the conclusion that the insured had suppressed the preexisting diease. The ratio of the above case is generally applicable to the case in hand.

    We are of the considered opinion that heart diease could not be diagnosed unless necessary test like E.C.G-Echo –Dopler- angiography etc. are done these tests are made only at the time of pressing need. In the present case there is nothing on record to suggest that prior to the complaint’s admission in St. Vensent clinic on 24.10.2005 as per Ex. R-10 where he was diagnosed "Coronary artery disease" Therefore the sudden occurrence of engyna cannot be ruled out. Hence we fail to appreciate OP’s reliance on various case laws mentioned in in para no.6 of this order: the ratio of these citations is not applicable to the case in hand.

    8. In the light of the above discussion we are of the view that in absence of solid evidence that the complainant had pre-existing diease the OP’s repudiation of the complainant's claim for medical treatment is un justified. We are therefore constrained to allow the complaint with direction to the Op No.1 The Insurance Company Limited to pay the complainant the medical expenses actually incurred for his treatment in Australia to the tune of Rs.16,18,365/- along with interest @ 9% from the date of submission of the claim to the Ops. However the Ops are at liberty to verify the authenticity of the bills/receipts etc. OPs are further directed to pay Rs/10,000 as compensation for harassment to the complainant.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Kirpal Singh son of late Sh. Sarhan Singh, resident of 2455, HIG Flats, Phase-II, Dugri, Ludhiana.

    (Complainant)

    Vs.



    United India Insurance Company Ltd. DO-IV, B-17, Phase II, metro Road, Focal Point, Ludhiana through authorised signatory.

    (Opposite party)








    O R D E R



    1. Insurance medi claim of Rs.59,629.57p lodged by the complainant under the insurance policy no. 201400/48/06/12/00000361, valid from 28.6.2006 to 27.6.2007 was rejected by the opposite party vide letter dated 29.10.2007 on the ground that claim pertains to pre-existing disease. This rejection has been assailed to be arbitrary, null, void, illegal, amounting to deficiency in service on the part of opposite party, in the present complaint under section 12 of the Consumer Protection Act, 1986. Hence, claimed that amount with 18% interest per annum along with litigation cost of Rs.11,000/-.

    2. The case of the complainant is that due to ailment his wife was admitted in Deep Hospital from 5.3.2007 to 8.3.2007 and was diagnosed of IHD Anaemia, Shock (Cardiogenic), Parkinsonism & dementia. Thereafter was admitted in Satguru Partap Singh Apollo Hospital, Ludhiana on 8.3.2007 where she breathed last on 10.3.2007 due to cardiac arrest. Spent an amount of Rs. 59,629.57p on treatment, which was claimed under the policy, but opposite party illegally repudiated the claim.

    3. Opposite party in reply took preliminary objections that the complaint is not maintainable as there is no deficiency in service on their part. However, admitted that complainant for self and wife had obtained insurance policy under which claim was lodged regarding the amount spent on treatment of wife of the complainant. The claim was rejected, because the insured got treatment qua pre existing disease which she had not disclosed while procuring the insurance policy.


    Disease and its treatment were direct consequence of previous diseases i.e. IHD, old Myocardial infraction, Cardiogentic shock, Parkinsonism, Dementia, Hypertension, mastectomy for breast cancer and Anemia HB2. The policy taken by the complainant was the first policy. The diseases were contracted much prior to date of policy, hence, claim was not payable.


    It was referred to penal doctor namely Sh. Tarsem Lal Gupta and his opinion/report dated 11.8.2007 was obtained. They also took opinion of independent doctor Sh. S.P. Aggarwal, who after considering treatment record concluded and gave opinion that insured died due to complication of pre-existing diseases. Such pre-existing diseases were not disclosed in the proposal form filled and signed by the complainant. They concealed and suppressed the material facts, therefore the claim has rightfully and legally been repudiated. There is no deficiency in service on their part.

    4. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

    5. We have heard the arguments addressed by the ld. counsel for the parties and have gone through file, scanned the documents and other material on record.

    6. The claim of the complainant as lodged on account of amount spent on treatment of his wife, who along with him was insured under Health + mediguard Policy, copy of which is Ex.C.1, stand repudiated under letter dated 29.10.2007 Ex.C.2 of the opposite party. The rejection of the claim as mentioned in this letter was on the following grounds:

    “We are closing your claim-file , on account of the following reasons:-

    Hypertension, parkinsonism and Dementia and Ischaemic heart Disease, mastectomy for Breast Cancer are pre-existing disease. Severe Anemia HB 2.6 GM takes a long time to reach this stage. So No Claim.”

    7. Such conclusion was arrived by opposite party after getting discharge card ex.C.3 of Deep Hospital and Ex.C.4 of Satguru Partap Singh Apollo Hospital, analyzed and examined from doctor Tarsem Lal Gupta and Dr. S.P. Aggarwal. Dr. Tarsem Lal Gupta vide his report Ex.R.4 dated 11.8.2007 opined that hypertension, parkinsonism and dementia and ischaemic heart disease, mastectomy for breast cancer were pre-existing diseases. Severe aneaemia HB 2.6 takes long time to reach this stage. He opined that patient in this case was suffering from pre-existing diseases.

    8. Similarly, Dr. S.P. Aggarwal vide his opinion Ex.R.5 concluded that case of the patient was of old MI cardiogentic shock, cancer breast, severe anemia, parkinsonism, dementia, hypertension which are complicated diseases and died due to such chronic diseases.

    9. In these circumstances, argued on behalf of opposite party that complainant had purchased this insurance policy for self and wife for the first time, but suppressed these chronic diseases of his wife and was dishonest with the insurance company. On account of suppression of material ailments which were pre existing, opposite party rightfully and legally rejected the claim.

    10. On the other hand, Sh. M.S. Sethi Advocate, Ld. counsel for the complainant argued that there is no proof that complainant ever suppressed any diseases or diseases were pre-existing and moreover, it was not contract between the parties to disclose any ailment while insurance incepted for the first time. Because, terms and conditions of the policy were never brought to the notice of the insured nor were supplied to the complainant or his wife. Therefore, they won’t be bound by terms and conditions which were subsequently incorporated by the opposite party in the policy, copy of which is Ex.R.2.

    11. On record, opposite party has not placed on record the proposal form under which complainant and his wife applied for insurance policy. That form would have been of immense help to the Fora to reach at the conclusion whether the complainant and his wife suppressed any disease to be termed as pre-existing disease for the purpose of the policy. It may be that problems/ailments for which wife of the complainant took treatment in Deep Hospital and Satguru Partap Singh Apollo Hospital were not mentioned by them in the proposal form, so as to suppress it, the document was withheld by the opposite party. Hence, we would be justified under section 14 of the Evidence Act, to presume that proposal form is deliberately withheld by opposite party to suppress conditions thereof from our perusal and also for the reasons that complainant had mentioned such ailments of his wife in the proposal form.

    12. The insurance policy of the complainant and his wife commenced on 28.6.2006 till 27.6.2007. But along with the policy Ex.C.1, terms and conditions of the policy were neither made available nor supplied to the complainant. This policy only contains stipulation that “Insurance would not extend to pay any expenses incurred relating to the disease(s)/sickness/injury mentioned in this column and for consequences attributing thereto or accelerated thereby or arising therefrom.”

    13. But no disease/injury or sickness for the purpose of exclusion is mentioned in this policy Ex.C.1. Whereas opposite party has brought on record copy of the insurance policy Ex.R2 issued in favour of Sh. Kirpal Singh complainant. As per date of print on the policy, it was issued on 30.1.2009. It means, the terms and conditions of the insurance policy which was valid from 28.6.2006 to 27.6.07, were subscribed and printed on 30.1.2009. This as such shows that terms and conditions of the policy were printed in the form Ex.R.2 after more than one and half year of the lapse of the insurance policy.


    The policy under condition no.4.1 pertaining to exclusion absolve the insurance company from payment of any expenses relating to pre-existing disease which exists when the cover incepts for the first time. When terms and conditions of the policy were printed in Jan.2009, though policy had lapsed on 27.6.2007, clearly spells that it is never made available by opposite party to the complainant during validity and currency of the policy. In other words, terms and conditions of the policy were never brought to the notice of the complainant, nor copy of the insurance was supplied to him. As a result, it would be apparent that complainant was never made aware of the exclusion clause of the policy, which was not supplied to him at all.

    14. Hon’ble Union Territory State Consumer Disputes Redressal Commission, Chandigarh in case New India Insurance Company Ltd. Vs. Saroj Sian & Anr. reported in2008(1) CLT,178 has held that where there is no evidence that exclusion clause of the policy was brought to the notice of the insured, claim can not be repudiated, as exclusion clause was not disclosed to the insured.

    15. Hon’ble National Commission in case Torrent Securities Pvt. Ltd. Vs. National Insurance Co. Ltd. reported in II (2007) CPJ 251 (NC) where the policy terms and conditions were provided to the insured after 10 months and that too after taking place of the accident, Hon’ble National Commission in such circumstances held that the insured would not be bound by terms and conditions, as it did not constitute a valid contract.

    16. Similarly in the instant case, we can conclude with certainty that there was no valid contract between parties contracting exclusion clause 4.1 of the terms and conditions of the policy ex.R3. Because, these terms and conditions were neither brought to the notice of the complainant nor supplied to him . Hence. he would not be bound by the same.

    17. Onus to prove the suppression lies on the insurer. In case United India Insurance Co. Ltd. Vs. Krishan Narain Sharma reported in II (2009) CPJ 496(Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh) proposal form furnished by the insured was not produced on record Information given by the insured originally not known. Insurance Company in circumstances was held liable to pay the claim under the policy.

    18. In view of these circumstances and aspects of the case in mind, we are clear in our minds that opposite party was not justified in repudiating the claim. Because there was no evidence that the complainant committed fraud by suppressing diseases of his wife when purchased the policy for the first time. Secondly there is no proof that terms and conditions of the policy were brought to the notice of the insured or such terms and conditions were supplied to them. Hence, insured would not be bound by terms and conditions of the policy Ex.R.2 which was printed in Jan. 2009, though policy had lapsed on 27.6.2007.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Kuldeep Singh son of Sh. Baljinder Singh, resident of House no.99, Ward No.12, Village Nandpur, P.O. Sahnewal, Tehsil and Distt. Ludhiana.

    (Complainant)

    Vs.



    1. United India Insurance Company Ltd. City branch, 26 2nd Floor, Dharam Singh Market, Amritsar through its Branch Manager.



    2. The Branch Manager, United India Insurance Company Ltd. City branch, 26 2nd Floor, Dharam Singh Market, Amritsar.

    (Opposite parties)






    O R D E R



    1. Truck bearing no.HR-37-B-7355, insured with opposite parties from 7.8.2006 to 6.7.2007 vide cover note no. 681342, was found stolen on 23.10.2006 from out side house of the complainant, where it was parked. FIR No.227 dated 24.11.2006 was got registered with P.S. Sahnewal. Claim with opposite parties qua theft under the policy lodged, which despite service of notice dated 26.4.2008, they failed to clear or settle the same. Such act on the part of opposite parties claimed amounting to deficiency in service. Hence, this complaint under section 12 of the Consumer Protection Act, 1986.

    2. Opposite parties in reply admitted obtaining insurance from them for his truck by the complainant and subsequently lodging claim. But averred that claim was repudiated due to infringement of condition no. 1 and 7 of the insurance policy. Because, complainant failed to take due precaution and lodged FIR on 24.11.2006 qua the theft dated 23.10.2006. He also failed to intimate for the loss immediately. Intimation regarding loss for theft of the vehicle was given on 18.12.2006 i.e. after 60 days of alleged theft. So, his claim was rejected vide letter dated 19.12.2006 sent to the complainant and he waited for 20 long months to file this complaint.

    3. Both the parties adduced their evidence by way of affidavits and documents and stood heard through their respective counsels.

    4. After going through the record and hearing the parties, we feel that opposite party was justified in repudiating the claim on account of infringement of terms and conditions of the policy Ex.R.4. Condition no.1 of the policy provides that in case of theft or criminal act, which may be subject of the claim under the policy, the insured shall give immediate notice (emphasis laid) to the policy and co-operate with the company in securing the conviction of the offender. Herein, complainant alleged noticing theft of parked truck on 23.10.2006 but he regarding theft lodged FIR Ex.CW1/P on 4.11.2006. Why such long delay in lodging FIR, no explanation has forth come. Therefore, he himself infringed conditions of the insurance policy.

    5. Ld. counsel for the complainant contended that no delay was caused intimating the police qua theft and also to the Insurance Company, which was informed by him vide letter Ex.R.1 dated 17.12.2006.

    6. Though alleged theft occurred on 23.10.2006, but intimation to opposite party was given vide letter dated 7.12.2006. This again infringes the terms and conditions of the policy.

    7. Complainant withheld the intimation qua repudiation of claim vide registered letter Ex.R.2 dated 19.12.2006. Said letter was dispatched vide dispatch entry Ex.R.25 by opposite party to the complainant as per dispatch entry no.3124 dated 27.12.2006 of the opposite party. This fact was withheld by the complainant from the Fora by claiming that opposite party not decided his claim. Such plea is false. The claim which was repudiated in December 2006 stand challenged by way of present complaint instituted on 19.8.2008. Whereas, condition no.7 of the policy provides that if the insurance company disclaim the liability to the insured, shall debar the insured to file claim in the court of law beyond the period of 12 calendar months from the date of disclaimer.


    Disclaimer in the instant case as conveyed by opposite party was made in December 2006 and within 12 months the same was not assailed. In these circumstances, we feel that opposite party-Insurance Company was justified in rejecting the claim due to infringement of terms and conditions of the policy by the complainant.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    T. Neelaknata Rao S/o. T Thavitaiah,

    age 55 years, Occ: Consultant HR & Legal,

    R/o. 1-4-879/58, Bakaram, Gandhi Nagar

    Hyderabad – 500 080. Complainant



    And



    1. M/s United India Insurance Co Ltd.,

    rep by its Manager, 1100, LIC Building,

    Bank Street, Koti, Hyderabad – 500 095



    2. M/s Medseva Health Care Ltd.,

    rep by its Manager, Claims Department,

    #203, 2nd Floor, Diamond Towers,

    Main Guard Road, Secudnerabad – 500 003 Opposite Parties











    O R D E R









    1. This is a consumer complaint filed under Sec. 12 of Consumer Protection Act, 1986 seeking a direction to the Opposite Parties to pay Rs. 2,43,525/- with interest @ 24% towards the sum assured in 2 policies, pay compensation of Rs. 5,00,000/- for mental agony, hardship and award Rs. 40,000/- towards costs.





    :2:



    2. The complainant’s case in brief is that he has been holding a Group Floater Medi-claim Policy for an assured sum of two lakhs rupees from the Opposite Parties, while he was in service for his family, especially for his wife Mrs. T. Hemavathi (Card No 520 1070 4006182 C). He also took another Medical Policy for an assured sum of Rs. 1.25 lakhs in his wife’s name in the year 1989 (Card No 520 3070 5028530 C).


    His wife was admitted in Global Hospital Hyderabad on 07.11.2005 where doctors advised her emergency surgery. The complainant and his employer wrote to the Opposite Parties on 07.11.2005 informing the facts and requesting them to arrange for cashless admission etc., in Global Hospital. She was again admitted in Global Hospital on 10.11.2005 and underwent surgery for valve replacement on 11.11.2005 and discharged on 18.11.2005, the total expenditure involved being Rs. 2,83,525/-. The original bills along with detailed statement were submitted to the Opposite Parties on 28.11.2005.


    Though several letters were written to the O Ps, they failed to settle the claim. Meanwhile, as the complainant worked in Government owned corporation, he had applied for medical reimbursement to the Director of Medical Education. As original bills were required for the purpose, he requested the Opposite Parties to write to the Director of Medical Education stating that the original bills were with them. But the Opposite Parties did not oblige him and it amounts to deficiency in service. At last they released an amount of Rs. 40,000/- by Cheque, dated 03.08.2006. In spite of several representations, they failed to release the balance amount of Rs. 2,43,525/-.



    3. The Opposite Party No 1 in the counter contended that as per policy conditions, the complainant should have informed the Opposite Parties before the surgery, but he did not adhere to the policy conditions. Further the documents filed by the complainant were not acknowledged by the Opposite Parties. The group policy taken by the complainant covered only Rs. 40,000/- per head until 2004-05 and thereafter on Rs. 2,00,000/- for family vide Floater Policy

    :3

    No 052201/48/04/87/00001668 for the period 27.01.2005 to 26.01.2006. Dr. Gokhale’s note revealed that the wife of the complainant was suffering from shortness of breath and orthpnoea for the past 2 years and diagnosed a suffering from as moderate MS, AS and AR and as the disease was of 2004, the OP insurance company had settled the claim for Rs. 40,000/- as per the policy in 2004-05. As the complainant had another policy covering risk up to Rs. 1,56,250/- and as an amount of Rs. 40,000/- was already paid, an amount of Rs. 1,56,250/- only had to be paid by the insurance company. However the complainant did not file the copies of policies and his complaint is also time barred.



    4. The points that arise for consideration are:



    1. Whether the complaint is time barred?
    2. Whether the complainant is entitled to his claim for the deficiency in service?



    3. To what relief?



    5. The Complainant filed evidence affidavit, written arguments and relied on Exhibits A 1 to A 5. The Opposite Party No 1 filed counter, evidence affidavit and written arguments. Opposite Party No 2 remained exparte. The complainant’s counsel alone advanced oral arguments.



    6. Point No i: As the Opposite Party had issued a Cheque, dated 03.08.2006 for Rs. 40,000/- in favour of the Complainant as part settlement (not to the satisfaction of the complainant), the cause of action has been continuing and the complaint having been instituted on 26.07.2008 is not time barred.



    7. Point No ii: It is an admitted fact that the complainant, a retired employee had taken two medical policies which covered his wife. The point of difference is regarding the sum assured by the Floater Policy No 052201/48/04/87/00001668 for the relevant period. The complainant and his employer contended that it was Rs. 2.00 lakhs, whereas, as per the O P No 1 it was Rs. 40,000/- only. Ex. A1 is the Xerox copy of the Insurance card in the name of the Complainant and his wife.

    :4:



    The complainant and his employer informed the Opposite Parties vide their letter, dt. 07.11.2005 (Ex. A-2) about the need for surgery for Smt. T. Hymavathi and requested for arranging cashless admission etc., in Global Hospital. As is evident the Opposite Parties did not reply to this or any other representations. Ex. A-3 is the copy of letter by the complainant, dated 28.11.2005 along with the original bills etc., to the Opposite Parties. Ex. A-4 is the copy of letter, dated 16.05.2006 from the Director of Medical Education returning medical bills of the complainant for want of all original bills.

    It is pertinent to note that the complainant had requested the opposite parties to inform the Director of Medical Education that the original bills etc were with them. But they neither obliged him nor settled his claim. It appears that they had harassed the complainant very much. It goes without saying that it amounts to severe deficiency in service. Further, at no point of time, the Opposite Parties have clarified anything to the complainant or his employer.



    8. Though the Opposite Party in their counter admitted that the amount to be paid by the Insurance Company to the complainant is Rs. 1,56,250/- they expressed their willingness in their evidence affidavit and written arguments to pay an amount of Rs. 1,25,000/- only. We wonder, how did they reduce it to Rs. 1,25,000/-?. But one should not lose sight of the fact that the amount had to be paid at least along with Rs. 40,000/-, which they had paid on 03.08.2006 which was 8 months after submission of the claim. It is needless to say that there is serious deficiency in service on the part of the opposite parties.

    Even accepting the contention of the opposite parties that the amount to be paid to the complainant is only Rs. 1,56,250/- means that they had withheld the amount payable to the complainant for more than 3½ years. One can imagine the difficulties faced by a retired employee in procuring so much of amount and the interest payable on private loans. So, the OPs have to pay the said amount with interest. Justice demands that the complainant is also entitled for compensation for mental agony and hardship faced by him. We feel it just to award compensation of Rs. 25,000/-

    :5:



    9. Point No. III: In the result, the complaint is allowed. The Opposite parties are directed to pay an amount of Rs. 1,56,250/- with 12% interest per annum from 03.08.2006 till the date of realization, Rs. 25,000/- towards compensation and Rs. 2,000/- towards costs within 30 days to the complainant.
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