Oriental Insurance

Before the District Consumer Disputes Redressal Forum, Mandi, H.P.



Complaint Case No. 208/2008

Date of Institution 8-8-2008

Date of Decision 7-3-2009





Devender Kumar son of Sh.Ganga Ram resident of village and Post Office Bhararu, Tehsil Joginder Nagar, District Mandi, H.P.



…Complainant





V/S



Oriental Insurance Company Ltd through its Branch Manager Vidya Bhawan Hospital Road, Mandi, District Mandi, H.P.



…..Opposite party











For the complainant Sh. Rajesh Joshi, Advocate

For the opposite party Sh.Dikan Rana, Advocate



Complaint under Section 12 of the

Consumer Protection Act, 1986.



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 case of the complainant is that he is registered owner of Tata Spacio vehicle beaing No. HP-01M-3786 which was being plied by him as a taxi . The said vehicle was insured by the complainant with the opposite party under insurance policy Number 263200, cover note dated 22-5-2007which was valid with effect from 28-5-2007 to 27-5-2008.During the currency of the insurance policy, said vehicle met with an accident on 25-3-2008 at about 3.00 PM at village Kashar , Tehsil Joginder Nagar and the same was extensively damaged. The complainant immediately informed the opposite party and it appointed surveyor who visited the spot on the same day and advised the complainant to get his vehicle repaired . Rapat of accident was lodged with the Police which is Annexure C-II. The complainant had submitted all the relevant documents including the rapat / report lodged with the police but for some extraneous reasons , the claim did not find favour with the opposite party and the same was repudiated by it vide letter dated 8-7-2008 Annexure C-III on the ground of concealment of the name of the driver. The complainant had adduced the driving license as Annexure C-IV. The complainant had denied any concealment of the facts on his part . It has been averred that the vehicle was repaired and sum of Rs.1,49,043/- was paid by the complainant including the lifting of the vehicle by crane . It has been alleged that the repudiation of the claim on the alleged ground by the opposite party not only amounts to deficiency in service but is also an unfair trade practice and due to this the complainant had suffered mental tension, torture and harassment and a sum of Rs.25,000/- has been claimed as compensation. With these averments , the complainant had sought a direction to the opposite party to pay Rs.1,49,043/- as full and final settlement of the insurance claim with interest at the rate of 12% PA from the date of accident till its payment ,to pay Rs.25,000/- on account of harassment . Apart from this, cost of litigation has also been claimed.

2 The opposite party resisted the complaint by filing reply in which preliminary objections have been raised that

there is breach of terms and conditions of the insurance policy i.e. the vehicle was driven without valid and effective registration certificate, route permit and fitness certificate , the driver was not holding valid driving license at the time of accident and that Sh. Lalit Kumar was driving the vehicle at the time of accident whereas the driving license of Sh Swami Ram was submitted therefore ,the opposite party is not liable to pay the compensation as the complainant had concealed the material facts. On merits . Para No.3 to 8 have been denied being wrong .However, it has been admitted that the opposite party got the loss assessed by Er. M.L. Gupta ,Automobile Engineer ( Surveyor and Loss Assessor ) who has submitted his report on 17-5-2008 and assessed the loss at Rs.88,170.71 paise but the same is not payable as the driver was not holding valid and effective driving license . It has been averred that the matter was further investigated by R.C. Kotwal , Investigator and he had mentioned in his report that Davinder Kumar , Sh. Lalit @ Ajay and Ravi Kumar were travelling in the vehicle and Sh. Ravi Kumar has got fracture on his left leg in this accident and Lalit @ Ajay was driving the vehicle . It has been denied that there is any deficiency in service on the part of the opposite party The opposite party had prayed for dismissal of the complaint .

3. The complainant had filed rejoinder reiterating the averments made in the complaint and controverting the averments made in the reply by the opposite parties.

4. We have heard the ld. counsel for the parties and have also gone through the entire record. From the perusal of the complaint ,reply and accompanying documents it is admitted fact that the vehicle in question was insured with the opposite party and during the currency of the insurance policy, the vehicle met with an accident on 25-3-2008. However, the case of the complainant is that at the time of accident the vehicle was being driven by one Sh.Swami Ram who was having a valid and effective driving license whereas the case of the opposite party is that at the time of the accident, the vehicle was being driven by Sh. Lalit alias Ajay . The claim of the complainant was repudiated by the opposite party on the ground that the driver Sh. Lalit Kumar alias Ajay was not holding a valid and effective driving license . In support of his complaint , the complainant has placed on record affidavit of Sh. Swami Ram, who deposed that he was employed as driver by the complainant and on 25-3-2008 aforesaid vehicle met with an accident as it turned turtle because of sudden application of the brake to avoid an accident with stray cattle. He further deposed that he was holding valid and effective driving license issued by Registering and Licensing Authority Joginder Nagar . The complainant has also placed on record affidavit of one Sh Brahama Nand Sharma who also deposed that at the time of the accident , the vehicle was being driven by Sh. Swami Ram . The complainant has filed his own affidavit regarding the fact that at the time of the accident Sh. Swami Ram was driving the vehicle and he was holding a valid and effective driving license. Copy of driving license Annexure C-IV of Sh.Swami Ram has also been placed on record by the complainant ,the perusal of which shows that it has been issued on 20/7/1990 by RLA Joginder Nagar and is valid for LMV transport w.e.f. 26-5-2005 and for HGV with effect from 7-4-1993. In the daily diary report dated 26-3-2008 Annexure C-II it has been mentioned that the Swami Ram was driving the vehicle at the time of the accident . The onus was upon the opposite party to prove and establish that at the time of the accident Sh.Swami Ram was not driving the vehicle in question and in fact Sh. Lalit Kumar alias Sh.Ajay was driving the vehicle in question. However except for the affidavit of Sh.R.C. Kotwal , Investigator , no other evidence has been filed by the opposite party in this respect.. No Investigation report of Sh.R.C.Kotwal has been adduced in evidence by the opposite party to substantiate its case. Admittedly no statement of any witnesses has been recorded by him during the course of his investigation .There is nothing in the affidavit of investigator from which it can be inferred that at the relevant time Sh.Swami Ram was not driving the vehicle. The opposite party should have filed his investigation report but for the reasons best known to it had withheld the same and as such an adverse inference has to be drawn agaisnt it. Therefore , in the absence of any concrete material it cannot be said that Sh.Swami Ram was not driving the vehicle at the time of the accident. . On the other hand , from the affidavit of the complainant as well as Sh. Swami Ram and independent person Sh. Brahama Nand coupled with daily diary report No.6 dated 26-3-2008, Police Post Bassi under Police Station Joginder Nagar it can safely be held that at the time of the accident the vehicle was being driven by Sh.Swami Ram . The complainant has placed on record driving license of Sh.Swami Ram Annexure C-IV as discussed earlier and there is no evidence to show that his driving license is invalid. Therefore we have no hesitation to conclude that the ground of repudiation of the claim is illegal and not genuine.

5 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.1,49,043/- as repair charges including towing charges and have also placed on record photocopies of the receipt and bills Annexure C-V-1 to C-V-5 but these documents are only photocopies and even affidavit of the proprietor / workshop owner has not been adduced in evidence and as such these documents cannot be relied in evidence .On the other hand the opposite party has admitted in his reply that net loss sustained by the complainant is Rs.88,170.71 paisa . The opposite party has also adduced in evidence the report of Surveyor in original which corroborates the version of the opposite party that the loss sustained by the complainant on account of accident of the vehicle in question is to the tune of Rs.88,170/-.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 17-5-2008 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.88,170/- .

6 The complainant had claimed Rs.25,000/- as compensation on account of mental tension, torture and agony as well as financial loss suffered by him due to deficiency in service on the part of the opposite party. As discussed above the opposite party has been deficient in providing service to the complainant , therefore , he is entitled to some reasonable compensation It would be in the interest of justice if we award a sum of Rs.10,000/- on this score.

7 In the light of above discussion, the complaint is partly allowed and the opposite party is directed to pay Rs.88,170/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization ,to pay Rs.10,000/- as compensation on account of harassment and Rs.2500/- as costs of litigation.



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

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

Announced (Sushil Kukreja) President
«1345678

Comments

  • adminadmin Administrator
    edited September 2009
    C.C. No. 123 /2008


    Between


    M/s V.S.N. Hatcheries Private Limited, rep., by
    its Personal Manager/ Authorized person
    Sri R.V.Rao S/o R.Neelakantam, Hindu,
    Aged 51 years, Office situate at D.No.4-1667/2,
    Durga Nagar Colony, Greamspet, Chittoor Town & Dist.,
    … Complainant.


    And

    1.[FONT=&quot] [/FONT]The Oriental Insurance Co., Ltd.,
    rep., by its Divisional Manager,
    Divisional Office, APSFC Buildings,
    Balaji Colony, Tirupathi Town,
    Chittoor District.

    2.[FONT=&quot] [/FONT]The Oriental Insurance Company Limited,
    Represented by its Branch Manager,
    Branch Office situate at P.H.Road
    Opp: District Court, Chittoor Town & Dist.,
    … Opposite Parties.

    This complaint coming on before us for final hearing on 02.03.2009 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri V.R.Ramakrishna, counsel for the complainant, and Sri E.Seetharamaiah Chetty counsel for opposite parties 1 & 2 and having stood over till this day for consideration, the Forum made the following:-

    ORDER

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


    This is a complaint filed by the complainant against the opposite parties for recovery an amount of Rs. 2,59,858/- together with interest at 18% p.a and Rs. 25,000/- towards damages for deficiency in service.

    The complainant submits that he is running hatchery, in which he engaged workers to operate the machinery for the purpose of his business. In order to safeguard the interest of his workers he availed Workmen’s compensation Policies through the opposite parties and paid a sum of Rs. 32,364/- towards Insurance Premium covering the risk of workers employed in the complainant’s hatchery business. The 1st opposite party is the Divisional Office, 2nd opposite party is the Branch Office. The policy is for the period from 06.05.2006 to 05.05.2007. The complainant submits that during the cover of the policy one of his worker by name G.Venkata Reddy son of Govinda Reddy was working as a Feed Mill Assistant in the Feed Mill Plant. On 16.11.2006 while he was discharging his duties he sustained crush injury to his right hand and the complainant provided Medical treatment to him at C.M.C Hospital, Vellore. Subsequently the insured G.Venkata Reddy filed a claim application before the Commissioner for Workmen’s compensation, Tirupati against the complainant along with the 2nd opposite party in W.C.No. 29/07, after receiving summons from the authority under workmen’s compensation Court, the complainant contested the matter and the 2nd opposite party was set exparte. After due trial the Commissioner for workmen’s compensation, Tirupati passed an award dt. 05.05.2008 against the complainant and the 2nd opposite party jointly and severally for a sum of Rs. 2,30,524/- along with interest at 9% p.a from the date of incident till the date of payment. Accordingly the complainant approached the 2nd opposite party on 16.05.2008 through his letter to satisfy the award of compensation and enclosed copy of judgment in W.C.No. 29/07, the 2nd opposite party through its letter dt. 21.05.2008 requested the complainant to satisfy the award by paying compensation amount with interest of Rs. 2,59,858/- and send the receipt to get reimbursement of the amount. Believing the words of 2nd opposite party, the complainant deposited the said amount before the Commissioner of Labour, Kurnool. But the 2nd opposite party issued a letter dt. 28.07.2008 settling the claim on account of injuries sustained by G.Venkata Reddy for a sum of Rs. 81,731/- only. The complainant again requested the opposite parties to pay the claim amount of Rs. 2,59,858/- paid by him under the award in W.C.No. 29/07. But the opposite parties did not respond the request of the complainant. Hence the complainant filed this complaint for recovery of Rs.2,59,858/- being the awarded amount and Rs. 25,000/- towards damages for deficiency in service. The complaint may be allowed.

    The 1st opposite party filed Written Version stating that the Workmen’s compensation Insurance policy is only a policy of reimbursement and in the instant case the complainant approached the opposite parties on 17.07.2008 only. After disposal of the case before the Commissioner for workmen’s compensation and on depositing awarded amount, the opposite party calculated the amount payable as per the terms and conditions of the policy, with reference to Workmen’s Compensation Act and informed the complainant of his readiness to pay Rs. 81,731/- as per the disability certificate. The workmen had 40% disability as per the Workmen’s Compensation Act, the amount payable works out Rs. 1750 X 194.64 X 60/100 X 40/100 = 83,150/- A sum of Rs. 1,419/- towards short period is deducted there from. They offered Rs. 81,731/- to the insured which he is entitled under the policy. Thus there is no deficiency of service on the part of this opposite party and the complaint may be dismissed.

    This opposite party submits that the complainant does not satisfy the word consumer as recognized to the C.P.Act and therefore the complaint is liable to be dismissed. The opposite party submits that as per the condition No. 8 of Workmen’s Compensation Policy, if any dispute arises as to the quantum to be paid under the policy, such dispute shall be referred to the decision of a sole Arbitrator to be appointed in writing by the parties. Thus this Forum has no jurisdiction to decide the dispute.

    This opposite party further submits that the complainant approached the 2nd opposite party with a copy of judgment of Commissioner for Workmen’s compensation requesting the 2nd opposite party to satisfy the award made in W.C.No. 29/07, since the policy being reimbursement policy, the 2nd opposite party advised the complainant to satisfy the award and then only seek reimbursement. This opposite party offered the above said amount by way of reimbursement as per the calculation made according to the particulars furnished by the complainant and the compensation payable as per the provisions made under Workmen’s Compensation Act, basing on the terms and conditions of the policy. The complainant submitted the Claim Form for settlement of the claim only on 17.07.2008 and the claim was settled and discharge voucher for Rs.81,731/- was sent on 28.07.2008 with a request to return the same duly signed for releasing the cheque and therefore there is no deficiency in service on the part of the opposite parties. The complaint of the complainant is not tenable and the same may be dismissed.

    The 2nd opposite party filed Memo adopting the Written Version of 1st opposite party.
    The point for consideration are :
    1.[FONT=&quot] [/FONT]Whether the complainant is a consumer within the meaning of C.P.Act?

    2.[FONT=&quot] [/FONT]Whether the opposite parties 1 & 2 committed deficiency in service ?
    3.[FONT=&quot] [/FONT]Whether the complainant is entitled to recover an amount of Rs.2,59,858/- together with interest at 18% p.a from the opposite parties 1 & 2 ?

    4.[FONT=&quot] [/FONT]Whether the complainant is entitled to claim an amount of Rs. 25,000/- towards deficiency in service ?

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

    The complainant filed Chief Affidavit of PW-1 and marked Ex.A1 to A16. The opposite parties filed Chief Affidavit of RW-1 and marked Ex.B1.

    Point No.1 :-
    The learned counsel for the opposite parties contends that the complainant is not a consumer and the complaint may be dismissed. I am unable to agree with the contention of the learned counsel for the opposite parties. The opposite parties admit that the 2nd opposite party issued a Workmen’s Compensation Insurance Policy to the complainant, agreeing to reimburse the compensation awarded by the Commissioner for Workmen’s Compensation, Nellore. The opposite parties have to indemnify the loss sustained by the complainant. Hence the complainant is a consumer within the meaning of Sec 2(1)(d) of C.P.Act.
    This point is answered in favour of the complainant.

    Points No.2 to 4 :-
    The complainant submits that he is running hatchery business and employed workers to operate machinery on 16.11.2006, one of the workers by name G.Venkat Reddy while discharging his duties sustained crush injury on his right hand. He provided medical treatment to him at C.M.C.Hospital, Vellore.

    The complainant submits that the said Venkat Reddy filed a claim application before the Commissioner, Workmen’s Compensation at Tirupathi against the complainant along with 2nd opposite party in W.C.No. 29/07. The Commissioner for Workmen’s Compensation, Tirupathi passed an award dt. 05.05.2008 Ex.A4 against the complainant and the 2nd opposite party for Rs. 2,30,524/- together with interest at 9% p.a from the date of incident till the date of payment. After the award was passed he approached 2nd opposite party to satisfy the award of compensation passed in W.C.No. 29/07. The 2nd opposite party requested the complainant to satisfy the award amount and send receipt of the same for reimbursing the amount to him. Accordingly the complainant deposited an amount of Rs. 2,59,858/- before the Deputy Commissioner of Labour, Kurnool and obtained acknowledgement and submitted the same before the opposite parties. But the opposite parties settled the claim only for Rs. 81,731/- instead of Rs.2,59,858/-. Therefore he filed this complaint for recovery of the award amount of Rs. 2,59,858/-.

    PW-1 is the Personal Manager of complainant. He stated in similar lines what he averred in his complaint. RW-1 is the Senior Divisional Manager of 1st opposite party, he stated that his company issued Workmen’s Compensation Insurance Policy to the complainant. The endorsement clause in the Policy is that the risk provided under the policy shall not extend to indemnify the insured in respect of any interest of penalty which may be imposed on him, on account of his failure to comply with the requirements laid down under the Workmen’s Compensation Act 1953.

    RW-1 further stated that the Workmen’s Compensation Insurance Policy is only a policy of reimbursement and in the instant case the complainant approached their company on 17.07.2008, only after disposal of the case, before the commissioner for Workmen’s Compensation and on depositing awarded amount. The Insurance company calculated the amount payable as per the terms and conditions of the policy with reference to Workmen’s Compensation Act.

    RW-1 further stated that as per the Workmen’s Compensation Act the amount payable works out to Rs. 1750 X 194.64 X 60/100 X 40/100 = 83,150/-. A sum of Rs. 1,419/- towards short period is deducted there from. They offered Rs. 81,731/- to the insured and settled the claim.

    The learned counsel for the opposite parties contend that the complainant failed to challenge the award which is made against the provisions of Workmen’s Compensation Act. He is not diligent and he is negligent in conducting the matter before the Workmen’s Compensation Tribunal. Therefore he is not entitled to the awarded amount as per the terms and conditions of the Workmen’s Compensation Insurance Policy and as per the disability certificate. The Workman had 40% disability and as per the provisions of Workmen’s Compensation Act the 2nd opposite party settled the claim for Rs. 81,731/- and the complainant is entitled to the said amount only.

    I am unable to agree with any of the contentions of the opposite parties. The opposite parties can not say that the complainant approached the Insurance company on 17.07.2008 only. The Commissioner for Workmen’s Compensation, Tirupati. In his Award in W.C.No. 29/07 Ex.A4 observed that the Advocate for 2nd opposite party filed Vakalath in W.C.No. 29/07 and there was no representation and no counter was filed. Hence the opposite party was set exparte on 05.01.2008. Therefore the opposite parties having received notice from the Commissioner for Workmen’s Compensation, Tirupathi had no interest to contest the matter and remained exparte. Then the Commissioner for Workmen’s Compensation, Tirupati after making enquiry passed an award for Rs. 2,30,064/-. The 2nd opposite party admits that on 23.05.2008 the complainant informed the 2nd opposite party with regard to passing of award in W.C.No. 29/07 for Rs. 2,30,064/- and claimed an amount of Rs. 2,59,858/- in his letter Ex.A6. Even then the 2nd opposite party has not challenged the order of the Commissioner for Workmen’s Compensation, Tirupati and remained silent. Now the 2nd opposite party blames the complainant that it has not appealed against the orders passed in W.C.No. 29/07 and is not diligent in prosecuting the case. According to the 2nd opposite party the injured has 40% disability and as per the workmen’s Compensation Act the compensation payable to the complainant is only Rs. 81,731/-. But the award Ex.A4 was passed for Rs. 2,30,524/-. If the 2nd opposite party is not satisfied with the Award passed Commissioner for Workmen’s compensation, Tirupathi in W.C.No. 29/07, it ought to have filed an appeal against the said order. The 2nd opposite party ought to have presented its case before the Commissioner for Workmen’s compensation, Tirupati. Because it is the 2nd opposite party has to indemnify the insured under the policy. When the 2nd opposite party failed to question the order passed in W.C.No. 29/07 it has to blame itself and it has to obey the orders of the Commissioner for Workmen’s Compensation, Tirupati passed in W.C.No. 29/07. This Forum cannot interfere with the orders passed by Commissioner for Workmen’s Compensation, Tirupathi in W.C.No. 29/07. The 2nd opposite party has to pay the entire amount awarded by the Commissioner for workmen’s compensation, Tirupati and the complainant is entitled to claim the same refusing to pay the awarded amount in W.C.No. 29/07 amounts to deficiency in service. Therefore the complainant is entitled to claim Rs. 10,000/- for deficiency in service and the same is granted to the complainant. Hence the complainant is entitled to claim the awarded amount of Rs. 2,30,064/-.
    Points 2 to 4 are answered in favour of the complainant.

    Point No. 5 :-

    In the result the complaint is allowed for awarded amount of Rs. 2,30,064/- (Rupees Two lakhs, thirty thousands and sixty four only) and Rs. 10,000/- (Rupees ten thousands only) towards deficiency in service. The opposite parties are directed to pay the said amount within 6 weeks from the date of order, failing which it carries interest at 9% p.a. Costs of Rs. 1,500/- are allowed.
  • adminadmin Administrator
    edited September 2009
    ORDER By Jayasree Kallat, Member:

    Complaint is filed by Smt. Sulochana, widow of Late Mohanan who was a member N.688 of Matsya Gramam, Elathur. On 8-2-03 when the Late Mohanan was fishing in sea in a boat along with his co-workers near Mangalore the boat capsized and all the fishermen were thrown to sea. All the others survived except Mohanan. The complainant and three daughters are the sole surviving legal heirs of the deceased Mohanan. Mohanan was a member under a group accident insurance policy of opposite party-1. Premiums were being paid correctly and the policy was in existence at the time of death of Mohanan. The sum insured was Rs.1,50,000/- the complainant preferred a claim through proper channel for the amount under insurance. The opposite party repudiated the claim informing that the complainant was not eligible for the claim as her husband had died due to heart attack. The postmortem report states that the “ death is due to cardiopulmonary arrest due to vagal inhibition secondary to drowning.” It is clear that there was an inhibition caused to the vagal nerves due to drowning which caused heart attack. The accident was directly responsible for the cause of death. The complainant claims an amount of Rs.1,51,000/- as the insurance amount due to her. The claim was filed as early as 13-4-03 the opposite party repudiated the claim. The repudiation letter states that death was not due to accident but due to natural cause. Thus the claim cannot be honoured. Opposite parties have repudiated the claim on unjustifiable grounds. It is deficiency in service and unfair trade practice on the part of the opposite parties. Hence the complainant had filed this petition for allowing the claim amount along with compensation and cost.

    Opposite party-1 filed a version denying averments and allegations made in the complaint except those that are expressly admitted. The complainant is not a consumer as defined under the Act. There is no deficiency, negligence or shortcoming for the services rendered by opposite party-1 . It is true that opposite party-1 issued a Group Personal Accident Policy in favour of opposite party-2 in this case, covering the death or bodily injury resulting solely and directly from accident of fishermen for the period from 31-3-02 to 30-3-03. Opposite party-1 also admits the fact that the complainant is the nominee of the deceased Mr. Mohanan who is the beneficiary of the said policy. Opposite party-1 had made the contract of insurance only with opposite party-2. So only opposite party-2 is legally entitled to prefer a complaint. Opposite party-2 also admits that they had received a claim from the complainant claiming the insured amount on the death of Mr. Mohanan who is one among the beneficiaries of the policy. Mohanan died on 8-2-03 from a place called Surathkal. The postmortem certificate of Mr. Mohanan revealed that the cause of death was “Drowning in sea on 8-2-03 at around 3 P.M. when the boat in which the deceased was fishing capsized. The deceased person and others managed to swim back to boat, when the deceased person complained of severe chest pain. He was then taken to Padmavathi Hospital where he was declared dead on arrival.” According to the Doctor who conducted the autopsy, the cause of death was “death is due to cardiopulmonary arrest due to vagal inhibition, secondary to drowning”. The postmortem report did not reveal the presence of water in the stomach or in the lungs, probablising the case of drowning. The opposite party had arranged for an investigation into this matter and the agency had questioned several persons including the people who accompanied the deceased Mohanan in the boat for fishing in Surathkal sea on the fateful day of 8-2-03. The investigation revealed that the boat had capsized on 8-2-03 while the deceased was fishing along with some co-workers a strong wind and heavy rain capsized the boat. All of them were in the water when the boat overturned. They were rescued by other boat. In the meanwhile the deceased Mohanan complained of chest pain, he was rushed to near by hospital. After examination the doctor declared the death of deceased Mohanan. The body was sent for postmortem. The investigating agency found that there were no symptoms supporting drowning. Opposite party-1 had also tried to find out whether the cause of death as stated in the postmortem report is true and correct. Opposite party-1 had come to the conclusion that the deceased Mohanan the husband of the complainant in this case had died due to heart attack and not due to drowning. If the death was due to drowning the presence of water would be noted in the autopsy report. Opposite party-1 also states that of all the persons who had gone fishing in the boat only one person had died. Taking into consideration of all the factors including investigation report and the opinion given by Dr. Thomas Varghese opposite party-1 was constrained to conclude that the cause of death was not due to accident. Hence opposite party-1 repudiated the claim and informed opposite party-2 all the facts. The present attempt of the complainant is only experimental. The non-presence of water in the vital organs would prove the fact in unmistakable terms that the cardiac arrest caused to Mr. Mohanan was not secondary to drowning. But it was a simple and plain cardiac arrest. The complainant is not entitled for any relief. Hence the petition may be dismissed with cost to 1st opposite party.

    Opposite parties-2 and 3 filed a version admitting the fact that Mohanan was a member of fishermen welfare board No.202. The Fishermen Personal Accident Insurance Scheme 2002-03 was implemented through Oriental Insurance Company Ltd. for fishermen. A member fisherman has to remit Rs.30/- per year as premium and the dependent of the deceased will get Rs.1,50,000/- as compensation for the death of the insured person in any accident. Mohanan had remitted the annual premium amount of Rs.30/- on 20-2-02 as per receipt No.8480 and enrolled in the insurance scheme. Mohanan who was engaged in fishing activities at sea on8-2-03 died due to drowning. Widow of Mohanan applied for insurance claim. The claim was forwarded to Opposite party-2 and 3. Opposite party-2 and 3 in turn forwarded to opposite party-1 insurance company for final settlement. But opposite party-1 rejected the claim stating that the death had occurred as a result of chest pain and not an accident. Opposite party-2 and 3 had promptly intimated the claim to opposite party-1. There was no lapse from the part of matsyafed in forwarding settlement of the claim. Hence matsyafed has no liability to settle the claim. In the circumstances the petition is devoid of merits and is liable to be dismissed.

    The only point for consideration is whether the complainant is entitled to get any relief?

    No oral evidence adduced but documents produced and marked as Ext.A1 to A6 on complainant’s side. RW1 and RW2 were examined on opposite parties’ side.

    The case of the complainant is that her deceased husband Mohanan was a fisherman having membership in Matsyafed. The Matsyafed had joined a Group Accident Insurance Policy of opposite party-1 Oriental Insurance Company. Premiums were being paid correctly and the policy was in existence during the period 2002-03. On 8-2-03 the deceased Mohanan along with his co-workers were fishing in sea off coast of Surthkal near Mangalore. The boat capsized and all the fishermen were thrown to the sea all the other fishermen survived except complainant’s husband Mohanan. The complainant and her three daughters are the sole surviving legal heirs of the deceased Mohanan. Complainant had preferred a claim for the insurance policy amount from the insurance company for getting the claim amount for the accidental death policy. Claim was put in through the proper channels but the complainant’s claim was rejected informing that she was not eligible for the claim amount, as her husband had died due to heart attack and not because of accident. Opposite party-1 rejected the claim on the ground that the complainant was the only person who died. All the others had survived they were taken off shore Mohanan had died later due to chest pain and heart attack. The death was not due to drowning. The postmortem report stated that “death is due to cardiopulmonary arrest due to vagal inhibition secondary to browning.” Opposite party-1 insurance company had also taken the stand that there was no contract between the complainant and insurance company. Insurance company had contract with Matsyafed but in our opinion opposite party-2 and 3 have admitted the fact that complainant’s late husband Mohanan was a member who has paid the amount for membership in the Matsyafed organization. Matsyafed Welfare Board is formed to look after the benefits and betterment of poor fishermen going to the sea. The Group Insurance was also arranged for the benefit of the fishermen and their family if any accident occurs to the fishermen. In this case the complainant and her three daughters are the legal heirs of the deceased Mohanan. As the complainant is a beneficiary she has all rights to prefer this complaint against opposite party-1. The second fact contended by opposite party-1 is that Mohanan died due to chest pain and heart attack and not due to drowning so it was not an accidental death it was only a natural death. The counsel for the opposite party-1 had taken the stand that the death was not due to drowning because the postmortem report did not reveal the presence of water in the stomach or in the lungs probablising case of drowning. Opposite party-1 had taken steps to summon Dr. Thomas Varghese and Dr. Soumya to examine as witness on the side of opposite party. The summons issued to Dr. Thomas Varghese was returned unserved. In this instance counsel for opposite party-1 sought the permission of the Forum to examine an expert in Forensic medicine. So opposite party had taken steps to issue sommons to Head of the Department Forensic medicines Medical College, Calicut. Dr. Sherly Vasu, Head of the Department, Forensic Medicines, Medical College Hospital, Calicut was examined as RW2 to prove whether Mohanan had died due to drowning or not. Dr. deposed that she had 27 years of service in Medical College Hospital. She was M.D, in Forensic medicine. She had conducted postmortem in bodies of drowning cases also. The Forum was fully convinced as to the credentials and expertise of Dr. Sherly Vasu to depose in this matter. Doctor has deposed that “ if a person drowns and dies due to cardiopulmonary arrest due to vagal inhibitions normally and invariably there will be presence of water in lungs, stomach and broncho pulmonary area is not true. If water is thrust into the chest sudden death can occur due to shock.” In Page No.2 Doctor also adds that “There won’t be water in the air passages, stomach etc. water might not enter into such organs.” Again in Page-3 of the deposition of RW2 the Doctor reiterates the fact that “In most of the cases of drowning, death may occur due to sudden neurogenic shock and dried drowning also occurs which means only one or two drops may go inside.” The evidence of RW2 is more than enough to conclude that the complainant’s husband had died due to drowning which can be called as an accidental death as it is proven beyond doubt that the deceased Mohanan had an accidental death when the boat capsized and all the fishermen fell into the sea. As it is an accidental death opposite party-1, the insurance company is liable to pay the policy claim amount to the complainant as soon as the claim was preferred. Opposite party-1 had hesitated in allowing the claim amount to the complainant because of a mistaken notion about drowning and heart attack. Now the evidence of RW2 has cleared the doubt regarding the death of the fisherman Mohanan. So we are of the opinion that the complainant is entitled for the full claim amount.

    In the result the petition is allowed directing opposite party-1 to release the claim amount of Rs.1,50,000/- with interest @ 9% per annum from 26-6-06 that is date of filing the case till realization to the complainant along with a compensation of Rs.5000/- for the mental agony and hardship she had to undergo. Opposite party-1 are also to pay a cost of Rs.1000/-. Opposite party is to comply the order within one month of receiving the copy of the order.
  • adminadmin Administrator
    edited September 2009
    ORDER ADV. RAVI SUSHA, MEMBER.

    This complaint is filed by the complainant for getting to pay Rs.18,70,000/- compensation Rs.25,000/- and cost Rs.5,000/- to the opp.party

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

    The complainant is conducting business in marine spare parts and marine goods like plastic twine, ropes, plastic floats, plastic basket, plastic crates, plastic needle, plastic sheet etc for the 10 years. The goods of the complainant are insured with the opp.party and hence the complainant is the consumer of the opp.party. On 13.5.2004 at about 2 am, the complainant’s shop got fire due to electric circuit therby 90% of the goods stored and 50% of the shop building were charred. On the date of the accident, the complainant was stocking goods worth Rs.24,99,552/-

    On the date of the accident the stock and the shop was insured with the opp.party under the standard fire and perils policy for Rs.25 lakhs vide policy No.1541 which was valid from 2.12.2003 to 1.12.2004. After the fire accident, the complainant submitted a claim form to the opp.party claiming compensation for the losses sustained.

    Along with the claim form, the complainant had submitted the bank statement for the previous 12 months, audited balance sheet for the previous 2 consecutive years, fire report GD entry of Police, copy of license etc. The opp.party appointed PTR Babu as the 1st surveyor who assessed the loss sustained by the complainant. Subsequently, A.V.Varghese, another surveyor,l appointed by the opp.party demanded the complainant to produce the copies of purchase bills, stock register etc. The complainant submitted that the majority of the purchase bills were destroyed in the fire and hence they cannot be produced.

    To prove the stock, the complainant obtained the monthly statement from the bank and handed over the same to the surveyor. After the lapse of a week the surveyor inspected the premises and prepared a Mahazer, without making a detailed examination of the destroyed and charred goods relating to a small quantity of goods. Even though the complainant had pointed out the goods damaged due to the fire accident, the surveyor ignored to consider the same.

    The surveyor had unilaterally assessed the loss at Rs.2,03,550/- In fact the total damage caused to the complainant is Rs.24,99,552/- The surveyor had deliberately ignored to assess the actuallloss and quantified the same at Rs.2,03,550/- only with the malafide intention to help the opp.party. Hence filed this complaint for getting relief as prayed for

    The opp.party filed version contending, interalia, that the complaint is not maintainable either in law or on facts. The definition complaint, complainant, consumer dispute service as defined in section 2[1] of the Consumer Protection Act do not cover the claim madeout in the complaint.
    It is admitted that this opp.party had issued a standard fire and special peril policy for a sum insured of Rs.25,00,000/- to the complainant for his shop premises engaged in the sale o marine spare parts, hardwares and fishing nets etc. under the name and style M/s. Indus Marine Agencies. The complainant on 13.5.2004 has reported a claim before this opp.party stating that the insured shop caught fire on the very same day at around 2 A.M. and the stocks kept in the hop room were destroyed. The opp.party immediately issued a claim form to the complainant with a request to resubmit the same after duly filled and signed along with the estimate of loss.

    The opp.party thereafter deputed a licensed surveyor and loss assessor Mr. P.T.R. Babu for conducting preliminary survey on the claim reported by the complainant. The surveyor conducted the preliminary survey of the shop premises on 13.5.2004 at about 2 p.m. in the presence of the complainant The surveyor thereafter submitted the preliminary survey report before this opp.party. The opp.party deputed a licensed and competent insurance surveyor CDR A.V.V Varghese has visited the shop premises on 14.5.2004 and verified the damaged items in detail and took photographs of the inside shop premises and of the damaged items found in the shop room.

    The allegation made in the complaint contrary to the above that almost all stocks were destroyed is unfound to reality and hence denied. The Surveyor CDR Varghese at the time of his 1st visit itself convince the fact that the value of stocks claimed by the complainant at the time of incident is incorrect and the maximum stock in the shop premises at the time of fire mishap was not more than Rs.10,00,000/- The complainant was not keeping any stock register and purchase bills in order to substantiate the quantity of stocks kept in the lshop premises at the time of loss and he failed to produce any of those documents before the surveyor during the time of inspection.

    The period stock statement submitted by the complainant with Canara Bank, Kollam is only a stereo type statement so as to cover up the loan amount availed by him from the Bank The said statement has got no legal sanctity or authenticity and lacking any factual bearings as to the actual stocks kept by the complainant in the shop premises at the time of loss.

    The surveyor Mr. Varghese during the course of his inspection found that main items stored in the shop was Nylon nets and the total quantity of the same is access to be less than 1200 Kg. approximately worth Rs.2.25 lakhs. The claim made in the complaint labour the cost of Nylon nets kept in the shop premises is unfounded to reality and totally baseless. The claim of the complainant that the plastic items including a large quantity of HDP fishing net got burned and rendered to ashes is absolute false and hence denied. The surveyor sought expert opinion from the Professor and head of the department of Polymer Science and Rubber Technology of Cochin University, Dr. Rani Joseph in the subject matter and ruled out the possibility of the claim preferred by the complainant that a large quantity of HDP fishing net got burned and rendered to ashes.

    It is significant to know that the fire was put off within one hour due to the timely action of the fire force authorities and there is no possibility of complete burning of fishing nets and it rendered to ashes. The surveyor deputed by this opp.party after complying all the requirements for assessment of loss under the policy conditions has assessed the net loss to a sum of Rs.2,14,263.65 after deducting salvage value Rs.3,000/- The allegations made in 7th para of the complaint that the surveyor hyas assessed the loss to the tune of Rs.5,00,000/- is totally baseless and false. The opp.party on the basis of the policy condition has deducted the compulsory policy excess Rs.10.713/- from the net assessment made by the surveyor and accordingly settle the claim payable to the complainant to a sum of Rs.2,03,580/- The opp.party thereafter sent a discharge voucher to the complainant for effecting settlement of the claim. But the complainant refused to sign the discharge voucher land receive the cheque from the opp.party raising untenable contentions.

    The complainant instead of settling the claim had issued a legal notice to the opp.party for which proper reply was given by the opp.party through its counsel The quantum of loss sustained to the complainant was properly assessed by a competent and qualified insurance surveyor and loss assessor as per the statutory provisions of the Insurance Act and the complainant has no mass of cause of action to dispute the quantum of loss assessed by the surveyor under the provisions of the CP.Act. Hence the opp.party prays to dismiss the complaint.

    Based on the contentions the following points arise for consideration are:
    1.Whether there is deficiency in service on the part of the opp.parties
    2.Reliefs and costs.

    For the complainant PW.1, PW.2, and PW.3 are examined. Exts.P1 to P12 are marked
    For the opp.parties DW.1 and DW.2 are examined. Exts. D1 to D9 are marked.

    Point 1 and 2

    It is not disputed that the complainant has taken Ext.P2 policy and that the policy was subsisting when the complainant’s shop got fire. The complainant submitted Ext.P3 claim form[claiming Rs.24,99,552/- or the actual loss sustained to the complainant. The opp.party on the basis of Ext. D1 survey report was ready to pay Rs.2,03,550/- as the actual loss happened to the complainant. Against which the complinant filed this complaint.

    Now the question is whether the complainant is entitled to get claim as prayed in the complaint. Complainant is relaying Ext.P1 monthly statement regarding the stocks. In order to prove Ext.P1 the complainant has examined PW.2. But in cross examination he deposed that stock register stock statement. A competent authority stock assess . PW.2 also admitted that in order to sanction a loan facility of Rs.15,00,000/- sale tax registration is mandatory. Complainant Cdid not produce any stock register. Hence purchase bills in order to prove Ext.P1 the complainant is failed to prove that he was having stock mentioned Ext.P1 at the fire incident time.

    In order to assess the actual loss sustained to the complainant, the opp.party immediately on the receipts of the claim intimation deputed DW.2 for conducting a preliminary survey. According to the opp.party preliminary survey is meant only for ascertaining the factual position of the occurrence and to collect the primary evidence including the photographs of the occurrence before the intervention of any external agency. After DW.1’s report Ext. D8 the opp.party appointed DW.1 for conducting a detailed survey about the extent of loss sustained to the complainant.

    According to the complainant the appointment of a second surveyor is illegal. For that the opp.party’s counsel argued that DW.2 was appointed in order to conduct the spot survey of the shop premises alone. On verying Ext.P8 it is seen that the insured was intended to keep the shop “as it is “ still conducting the final survey and inP8 . DW.2 did not mentioned about the extent of loss. He has noticed only about the damages. So it cannot be said that opp.party deposited two different surveyors one after another for the assessment of loss of the incident. The allegation of the complainant is that the entire stock kept in the shop were destroyed due to the fire incident. The apex court held that the claim payable under an insurance contract has to be necessarily assessed by a licensed surveyor and loss assessor.

    On careful scrutiny of the photographs taken by the surveyors DW.1 and DW.2 and Ext. D1 and D8 it is very much clear that, the racks, office table and other furniture’s kept inside the shop premises are free from any Fire damages except some minor damages of the building. The surveyor on his physical verification found that the maximum stock at the fire incident time was not more than Rs.10,00,000/- The surveyor issued letter to the complainant [Ext.D6] to produce the stock register, sales tax return for the last 12 months, audited balance sheet for the last 2 consecutive years etc. for finalization of the survey report. But the complainant has not responded to the same.

    By considering the entire evidence we are of the view that there is lno authentic documents or evidence adduced by the complainant to discared the authenticity of Ext.D1 survey report. Hence the complainant is entitled to get only Rs.2,03,580/- assessed by DW.2 as the extend loss sustained to the complainant. As the opp.party has already offered the said amount to the complainant. There is no deficiency in service on the part of the opp.party

    In the result the complaint fails and the same is hereby dismissed without cost of the opp.party.

    Dated this the 30th day of March, 2009.
  • adminadmin Administrator
    edited September 2009
    ORDER

    ORDER DELIVERED BY Sri. R.G.PATIL, PRESIDENT



    1)This is a complaint praying to direct the OPs to pay to the complainant Rs.2,00,000-00 with interest, Rs.1,00,000-00 towards compensation, and cost.


    2)
    Brief facts of the complaint are that the complainant is the wife of late Balraj Laxman Jadhav who had insured his motor cycle for third party risk under policy No.2008/3012 and for his individual life risk under policy No. 2008/49771.by paying premium through DD dated 20-12-2007 and remitted all the papers to OP-3. The husband of the complainant died in motor cycle accident. The incident was informed to the OPs on 30-1-08 and issued legal notice to the OPs. But they avoided their liability. There is deficiency of service on the part of the OPs and they are liable.


    3)The OPs 1 and 2 filed WS stating that the OP-2 for the first time on 31-12-07 received .two proposals from the deceased. The proposals and the premium amount were accepted for the first time on 2-1-08 and two independent policies were issued covering the risk from 2-1-08 to 1-1-09. One two wheeler liability only policy was issued for third party risk wherein personal accident coverage for Rs.1,00,000-00 was included on payment of additional premium of Rs 50/- and a Nagarik Suraksha Individual policy was issued to the deceased covering the risk from 2-1-08 to 1-1-09 for a sum of Rs.80,000-00 for death and Rs. 20,000-00 for Hospitalization on payment of premium amount of Rs.101/-. The amount collected was receipted on 2-1-2008.The OP-3 is not authorized to issue any policy .It is only on 31-1-2008 for the first time the OP-2 received a letter from the complainant about the death of the deceased. The notice of the complainant is properly replied. The policies were got issued by misrepresentation and concealing the death of the deceased. There is no deficiency of service on the part of the OP. He prays to dismiss the complaint with costs.


    4)
    The OP-3 filed WS stating that he received the required premium amount on 21-12-07 from the husband of the complainant as this OP had obtained DD for the said sum of Rs 494/- alongwith other premiums collected for other persons on the said date, which have been remitted to OP-2 on the same day through Janapriya Courier under their receipt No.3299704.The complainant and the OPs have filed their affidavits. The complainant has got marked Ex.C-1 to C-16. The OP-1 has got marked Ex.R-1 to R-8 and the OP-3 has got marked Ex. R-9 to R-11.


    5
    )The points that arise for our consideration are:
    [FONT=&quot]i)[/FONT][FONT=&quot]“Whether the complainant proves that her deceased husband paid premium to OP-3 on [/FONT][FONT=&quot]20-12-2007[/FONT][FONT=&quot] and she got issued the policy by proper representation” ? [/FONT]

    [FONT=&quot]ii)[/FONT][FONT=&quot]What order ?[/FONT]


    6)Our replies to the above points are:
    [FONT=&quot]i)[/FONT][FONT=&quot]Negative.[/FONT]
    [FONT=&quot]ii)[/FONT][FONT=&quot]As per order.[/FONT]
    REASONS:
    7)Point No. 1:- The counsel for the counsel for the complainant contented that the husband of the complainant insure himself and his vehicle by paying premium of Rs.393-00+101-00 by cash to the OP-3 on 20-12-2007 and the same day the OP-3 sent the amount through DD inclusive of other persons premiums. The OPs-1&2 have issued policy. The insured died on 26-12-07 and the death intimation is sent to the OPs 1&2 on 30-1-08.The policy issued is proper and the OPs 1&2 are liable to pay the insured amount.

    8)The counsel for the OPs 1&2 vehemently urged that the OPs 2 received the premium for the first time on31-12-2007 with two proposals one for Nagarik Suraksha Policy and the other for the two wheeler vehicle. The proposals and the premium amount were accepted and two policies were issued on 2-1-08. There is no previous policy and it is not a renewal. On 31-1-08 only the OP received a letter about the death of the deceased. The policies are got issued by misrepresentation concealing the death of the deceased. The premium is paid after the death of the deceased. The OP-3 is not authorized to issue policy. There is no deficiency of service on the part of the OPs 1&2 and they are not liable. He prays to dismiss the complaint with costs.

    9)We have gone through the pleadings, affidavits and documents submitted by the parties. It is admitted fact that the husband of the complainant died in accident on 26-12-07 and as per EX.C-9 and C-10 it is intimated in writing to the OP on 31-01-2008. Ex.C-2 and C-3 show that the policies are issued by the OP on 02-01-08. The complainant relies on Ex R-9, R-10 and R-11 to show that the premium amount is paid to OP-3 and the OP-3 sent it to OPs-1&2. Ex.R-9 is counterfoil issued by the Syndicate Bank dated 20-12-07 for sending an amount of Rs. 3241/- to the OPs-1&2. Ex.R-10 and R-11 are the receipts issued by the Janapriya Courier Service for sending consignment to Oriental Insurance Co. Ltd. None of these three documents show that the premium amount of the deceased Balraj is included in the said amount. The date on Ex.R-10 and R-11 are overwritten. The date ‘10’ is made ‘20’. It is a clear manipulation of the document. The complainant has not examined the proprietor of Janapriya Courier nor called for the office copy of the said Courier. It shows that no any premium amount is paid on 20-12-07 by the husband of the complainant to OP-3 as well as to OPs 1&2. It is only after the death of said Balraj the amount is sent to the OPs 1&2 through the OP-3. The records at Ex. C-9 and C-10 show that the death intimation is given on 30-1-08 i.e. after more than one month after the death. After examining the documents at Ex.C-12, Ex.R-1 and R-4 the Forum has taken judicial notice that the signatures at Ex.R-1 and R-4 differ from the signature on Ex, C12. The signatures on Ex.R-1 and R-4 are not of the deceased Balraj. It shows that the policy is got issued by misrepresentation in collusion with the OP-3 concealing the death of Balraj to make illegal gains. The Hon’ble NCDRC in I (2008) CPJ 228 has held that ‘the agent has no authority to accept premium on behalf of the LIC – Deposit by agent after death of deceased would not entitle the claimant to get insured amount- No relief’. In this case also the premium is paid to the Insurance Co. and the policy is issued after the death of the husband of the complainant. The complainant is not entitled for any relief. So we reply the Point No.1 in the negative.


    10)
    Point No.2. In view of the above discussions we are of the opinion that there is no deficiency of service by the OPs 1&2, they are not liable and the complaint is liable to be dismissed.

    We pass the following order.
    ORDER
    The complaint is dismissed.
    (Order dictated, corrected and then pronounced in the open Forum on this 30th March, 2009)
  • adminadmin Administrator
    edited September 2009
    Order delivered by Smt. Shashikala P. Naik, Member



    1)[FONT=&quot] [/FONT]This is a complaint praying to direct the OP to pay to the complainant Rs.1,00,000-00 with interest and cost of Rs 10,000-00.

    2)[FONT=&quot] [/FONT]Brief facts of the complaint are that the complaints’ deceased son Vijay and 19 others were insured by Usman Ishaquesab of Hubbangeri Kumta for Rs1,00,000-00 each pertaining to accidental death benefits during the course of employment in boat, small vessel in a river or in Arabian Ocean from 10-8-2005 to midnight of 9-8-06 with the OP. Vijay Putturaya and his three brothers went in the boat for fishing on 2-7-2006. At that time their boat met with accident and Vijay Putturaya was drowned in the sea and died. The complainants submitted claim with the OP along with documents including the succession certificate. Inspite of repeated requests the OP failed to pay the amount. There is deficiency of service on the part of the OP and the OP is liable.

    3)[FONT=&quot] [/FONT]The OP filed WS admitting the policy and stating that the incident took place on 22-07-06 i.e. during laid up period. The laid up period was from 1-6-06 to 15-08-06. The OP received the claim form on14-8-06 only with death certificate. Inspite of asking the complainant to submit other documents they failed to provide the necessary documents. The OP did not repudiate the claim nor refused to pay the amount. As per the terms of the policy the OP is not liable to pay interest on the policy amount. If at all, the insurance co; is liable to pay the insured amount of Rs.1,00,000-00 only provided the complainants submit all the required documents. There is no deficiency of service on the part of the OP. He prays to dismiss the complaint.

    4)[FONT=&quot] [/FONT]The complainant and the OP have filed their affidavits. The complainant has got marked Ex.C-1 to C-7 and the OP got marked Ex.R-1 toR-3.

    5)[FONT=&quot] [/FONT]The point that arises for our consideration is: “Whether there is deficiency of service on the part of the OP” ?
    6)[FONT=&quot] [/FONT]It is the contention of the counsel for the complainant that the insured deceased died in the boat accident. But the OP has not paid the insured amount. The say of the OP that there was laid up period is not correct. There is no mention about the laid up period clause in the Policy. The OP can not take the said defence. The complainants have submitted all the documents but the OP has not processed the claim. The rejection of the claim is the deficiency of service by the OP.

    7)[FONT=&quot] [/FONT]The counsel for the OP vehemently urged that there was laid up period from 1-6-06 to 15-8-06. The deceased had gone for fishing during the laid up period and has violated the conditions of the policy. The complainant has not submitted the required documents. So the OP could not process the claim. For the said reason the OP cannot be saddled with payment of interest and costs. There is no deficiency of service on the part of the OP and the OP is not liable. He prays to dismiss the complaint with costs

    8)[FONT=&quot] [/FONT]We have gone through the pleadings, affidavits and documents submitted by the parties. Ex C-1 is the Policy issued by the OP. There is no mention about the laid up period in EX.C-1. It seems that the complainant has produced the CC of succession Certificate(Ex.C-4) to the OP though it was not a necessary document. The fact that the complainant on demand by the OP has submitted the CC of Ex.C-4 to the OP shows that the complainant has submitted other required documents. So in our view the rejection of the claim is unjustified and the complaint is liable to be allowed directing the OP to pay to the complainant the insured amount with interest @ 9% pa from 22-1-2007 i.e. six months after the death of the insured till realization and cost of Rs 1000-00.
    We pass the following order.
    ORDER
    [FONT=&quot] The complaint is allowed. The OP is directed to pay to the complainant the insured amount with interest @ 9% pa from [/FONT][FONT=&quot]22-1-2007[/FONT][FONT=&quot] till realization and cost of Rs.1,000-00.[/FONT]
  • adminadmin Administrator
    edited September 2009
    [FONT=&quot]//JUDGMENT//[/FONT]
    [FONT=&quot] [/FONT]



    [FONT=&quot] This is the complaint filed by the Complainant K.Mahesh against Respondent Nos.1 and 2 under Sec-12 of Consumer Protection Act for to declare that the Respondent No.1 and 2 are jointly and severally responsible for to pay the compensation amount to the injured P.Basava Murthy in the accident of tractor and trailer bearing No.KA-35/T-1740 and 41 and to award an amount of Rs.20,000/- towards deficiency in service of Respondent No.1 and for to award an amount of Rs.5,000/- towards cost of this litigation with other reliefs as deems fit to the circumstances of this case. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2. The brief facts of the Complainant’s case are that; [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] After purchase of tractor and trailer bearing No.KA-35/1740 and 41 by the Complainant from his previous owner S.Shekarappa, he pledged the said vehicle to the Respondent No.1 Bank and borrowed loan. It was the duty of Respondent No.1 to insure the vehicle from the premium paid by him towards loan amount. It was not done by the Respondent No.1. Incidentally on 23/11/2006 the said tractor and trailer met with accident in Harakabhavi village. In the said accident one P.Basava Murthy sustained injuries. Police have registered the case under Crime No.174/2006. The said P.Basava Murthy filed MVC bearing No.751/2007 by claiming compensation amount of Rs.2,50,000/- in Prl. Civil Judge (Sr.Dn.) Court, Chitradurga. Non insuring the said vehicle with the Respondent No.2 by the Respondent No.1 inspite of amount credited towards insurance is deficiency in service on the part of Respondent No.1 as such he filed this complaint for the reliefs as prayed in it. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 3. The Respondent Nos.1 and 2 appeared in this case through their respective advocates filed their separate Written Versions. The brief facts of W.V. of Respondent No.1 are that; [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Clause No.23-B of the agreement is very much clear that it has got liberty and is not bound to effect such insurance. If Complainant has insured his vehicle with Respondent No.2 it was its duty to inform it to the Complainant as well as to Respondent No.1. One Shekarappa was insured the vehicle with Respondent No.2. After lapse of Policy, the present Complainant has not insured his vehicle with 2nd Respondent which is due to negligence and fault of Complainant. All other allegations made against it have been specifically denied and prayed for to dismiss the complaint among other grounds. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] The brief facts of W.V. of Respondent No.2 are that; [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot]The Respondent No.2 is stranger and third party to the Complainant and Respondent No.1. Both of them are no way connected to Insurance Company. The claim petition bearing MVC No.751/2007 is pending before the MACT, Chitradurga. Hence, the Complaint be dismissed with exemplary costs. The tractor and trailer of Complainant are not insured with this Respondent as on 23/11/2006. Hence, paying compensation amount to him and granting the reliefs as prayed in this complaint are not arising for consideration. Hence, it was prayed for to dismiss the complaint with exemplary costs. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]4. In view of the pleadings of parties, now the points that arise for our consideration and determination are that; [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1.[/FONT]
    [FONT=&quot]Whether the Complainant proves that he purchased tractor and trailer bearing No.KA-35/T-1740 & 41 from its previous owner S.Shekarappa and thereafter he borrowed loan from the Respondent No.1 Bank, but Respondent No.1 Bank not acted on terms and conditions of agreement with him as per the terms and conditions with its previous owner S.Shekarappa and thereby Respondent No.1 Bank not insured the said vehicle with Respondent No.2 from his loan account even though there was hypothecation deed in favour of Respondent No.1, incidentally the said vehicle met with an accident on 23/11/2006 in which P.Basava Murthy sustained injuries and claim petition filed by him is against this Complainant, therefore, it happened due to negligence of Respondent No.1 and thereby Respondent No.1 found guilty of deficiency in its service towards him? [/FONT]
    [FONT=&quot][/FONT]
    [FONT=&quot]2. [/FONT]
    Whether the Complainant is entitled for reliefs as prayed in this complaint?
    [FONT=&quot][/FONT]
    [FONT=&quot]3.[/FONT]
    [FONT=&quot]To what relief the Complainant is entitled for? [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]//POINTS[/FONT][FONT=&quot]//[/FONT]


    5. Our findings on the above points are as under.
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot]Point No.1: [/FONT]
    [FONT=&quot]In Negative. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot][/FONT]
    [FONT=&quot]Point No.2: [/FONT]
    [FONT=&quot]In Negative. [/FONT][FONT=&quot][/FONT]
    [FONT=&quot][/FONT]
    [FONT=&quot]Point No.3:[/FONT]
    [FONT=&quot]In view of the findings on Point Nos.1 and 2, we pass the final order for the following; [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]//REASONS//[/FONT]
    Point Nos.1 & 2: -


    6. [FONT=&quot]In order to prove the facts involved in these two points, the affidavit evidence of Complainant was filed, he was noted as P.W.1, documents Ex.P.1 to Ex.P.8 are marked. On the other hand, the affidavit evidence of Branch Manager of Respondent No.1 Bank was filed, he was noted as R.W.1. No documents filed and marked. Affidavit evidence of Divisional Manager of Respondent No.2 was filed, he was noted as R.W.2. No documents filed and marked. All the parties have not filed their written arguments. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 7. The main case of Complainant is that he purchased the tractor and trailer bearing No.KA-35/T-1740 and 41 from its previous owner S.Shekarappa. After his purchase he borrowed loan from the Respondent No.1 Bank by pledging the vehicle with it. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 8. As per the facts pleaded in Para No.4 on Page No.4 of complaint and facts stated in his affidavit evidence, it is very much clear that, the said tractor and trailer met with an accident on 23/11/2006 in Harakabhavi village and in the said accident one P.Basava Murthy sustained injuries. A Police case was registered under Crime No.174/2006. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 9. In view of the facts, Ex.P.1 copy of R.C. has no much importance to appreciate in detail. Ex.P.2 to Ex.P.5 are the records of Insurance Company pertaining to the said vehicle in respect of previous owner of vehicle by name S.Shekarappa. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 10. It is an admitted fact by the Complainant that after his purchase he not got insured it directly with Respondent No.2 Insurance Company or through the Respondent No.1 Bank. Further Paras of Complaint goes to show that injured P.Basava Murthy filed MVC case against present Complainant by claiming compensation amount of Rs.2,50,000/- for the injuries sustained in the accident vide the copy of claim petition Ex.P.7. In the said claim petition, P.Basava Murthy made an allegation against the driver of tractor and trailer who is the servant of present Complainant as he drove it in rash and negligent manner and due to it the tractor rolled on his right foot. Therefore, he claimed an amount of Rs.2,50,000/- from the Complainant on different heads as noted in Para No.3 of Ex.P.7. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 11. The allegations made by the Complainant against these Respondents are related to the said accident as the said vehicle was not insured on the said date, time and place of accident. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 12. It is the duty of injured P.Basava Murthy to prove the rash and negligent driving of tractor on the said date, time and place of accident. The prayer No.1 claimed by the Complainant is out coming of the said accident and prayer No.2 follow the result of prayer No.1. In the instant case, the Complainant not claiming or contending that, his vehicle damaged in the accident. The Complainant is also not contending that he insured the vehicle comprehensively with Respondent No.2 Insurance Company or through the Respondent No.1 Bank. There are no convincing evidences to show that there was continuity of the previous Insurance Policy from the date of his purchase till the date of accident. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 13. Ex.P.2 to Ex.P.5 are standing in the name of previous owner S.Shekarappa for the year 2005. Thereafter insurance policy was lapsed. According to him, he got transferred the said vehicle in his name on 26/04/2006 after lapse of its policy. The said accident took place on 23/11/2006. In the said circumstances, there are no records from the side of Complainant that he informed to the Respondents regarding lapse of Insurance Policy of previous owner or a request made by him to the Respondent No.1 Bank for to get insurance policy afresh from the date of his purchase. If this complaint was filed by the Complainant by contending that his tractor and trailer damaged in the said accident, then that would be a different matter. Here he has not pleaded anything about damages to his tractor or trailer in the accident. What he wants to claim by this complaint is that the Respondent Nos.1 and 2 jointly and severally liable to pay the compensation amount to injured P. Basava Murthy in MVC vide Ex.P.7. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 14. In the above circumstances of this case, now we have to see as to whether this Forum can entertain such type of Complaint either to find out the negligence and deficiency in service on the part of any one of these Respondents and fixing of liability on each of them. In this regard, we have referred ruling reported in AIR 1995 SUPREME COURT 1384 Chairman Thiruvalluvar Transport Corp. Vs. Consumer Protection. In the said case, the Hon’ble Supreme Court discussed the case similar to the facts of present case on hand. Their lordships in the said case observed as - Sec-3 of C.P.Act – Whether National Commission, State Commission or District Forum constituted under C.P. Act have jurisdiction to try the cases arising out of the Accident Claims, due to death or fatal injuries sustained by the persons in the vehicle accident – No – Accident Claims Tribunals constituted under the M.V. Act is special act – Consumer Protection Act is a general Act in respect of consumers – as such, special law prevails over general law as such either National Commission or State Commission or District Forum constituted under C.P.Act have no jurisdiction to try the cases arising out of accident which are triable by Accident Tribunals constituted under M.V.Act. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 15. In the instant case, the Complainant claimed first relief with regard to fixing of joint and several liability of these Respondents for to the claim of P.Basava Murthy due to injuries sustained by him in the accident. The 2nd claim of him is for to grant an amount of Rs.20,000/- due to deficiency in service on the part of Respondent No.1. As we have already discussed the entire case of Complainant and we have gone through the principles of ruling referred above, we are of the view that, the first prayer of Complainant cannot be granted by this Forum which is for fixing of liability of Respondent Nos.1 and 2 jointly and severally for the injuries sustained by P.Basava Murthy in the said accident. Hence, we are not competent to grant such kind of relief as prayed by the Complainant in this complaint. Accordingly, the said prayer was rejected. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 16. Similar prayer was made by the Complainant to hold that there was deficiency in service on the part of Respondent No.1 for not getting insurance of the said vehicle by it. This relief is an ancillary relief out coming of the said accident. Hence, we are not competent to decide it. If there was prayer for compensation for the damages caused to the said vehicle in the accident then it would be a different matter. In the instant case, there is no such kind of contention by the present Complainant that his tractor and trailer damaged in the said accident as such, the Complainant cannot get second relief from this Forum. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]17. The learned advocate for Respondent No.1 submitted two rulings which are II (2000) CPJ 120 Asad Ullah Khan Vs. M.C. Motors & Ors. and I(1998) CPJ 16 Kulwant Sing Vs. Singh Finance Pvt. Ltd., in respect of hire purchase and the dispute in between hire purchaser and financier. Those rulings are not guiding us to decide the case of Complainant. The ruling of Hon’ble Supreme Court cited above is sufficient for us to decide the case of Complainant. Accordingly, we have not discussed factual aspects of cases of rulings referred by the learned advocate for Respondent No.1. [/FONT]

    [FONT=&quot] 18. In the said circumstances, the Complainant is not entitled to get any one of the reliefs as prayed in his complaint as such, we answered Point Nos.1 and 2 in Negative. [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot]Point No.3: - [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]19. In view of findings on Point Nos.1 & 2, we pass the following; [/FONT]
    [FONT=&quot]//ORDER//[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The complaint filed by the Complainant is dismissed. All the parties to this complaint are directed to bear their own respective costs. [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Inform the parties accordingly.[/FONT]
    [FONT=&quot] (Dictated to the Stenographer, typescript edited, corrected and then pronounced in the Open Forum this 05th day of MARCH 2009). [/FONT]





    [FONT=&quot]PRESIDENT,[/FONT]
    [FONT=&quot]DISTRICT FORUM, BELLARY.[/FONT]
    [FONT=&quot]MEMBER,[/FONT]
    [FONT=&quot]DISTRICT FORUM, BELLARY.[/FONT]
    [FONT=&quot]MEMBER,[/FONT]
    [FONT=&quot]DISTRICT FORUM, BELLARY.[/FONT]
  • adminadmin Administrator
    edited September 2009
    Complaint filed on 10.12.2008
    and Decided on 17.03.2009
    BEFORE THE UDUPI DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
    AT UDUPI (KARNATAKA)

    PRESENT: 1. Sri P.C.Gopal, President,
    2. Sri Bekal Lakshmana Nayak, Member.
    Consumer Complaint No.147/2008
    Order dated 17.03.2009
    Between:

    K.Ramesh Pai,
    aged about 42 years,
    S/o Sanjeeva Pai,
    Opp. Viveka High School,
    Kota Bye Pass, NH 17,
    Saligrama Kota,
    Udupi Taluk and District.

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

    1. The Branch Manager
    Oriental Insurance Co. Ltd.,
    Prabhu Building, Municipal Road,
    Kundpura.

    2. The Divisional Manager,
    Oriental Insurance Co. Ltd.,
    Court Road, Udupi – 576 101.

    (Sri Krishnamoorthy P., Advocate for the Opposite Parties)
    ………….. Opposite Parties
    WRITTEN BY SRI BEKAL LAKSHMANA NAYAK, MEMBER

    1. The Complainant fled this complaint in Sec. 12 of CPA alleging deficiency in service by Opposite Party in repudiating the claim of the Complainant on insurance and claimed Rs.1,00,000/- towards personal accident cover with interest at the rate of 15% per annum from 23.2.2005 till date of payment, compensation of Rs.1,00,000/- for mental agony and tension, financial loss and injury and Rs.1,500 towards cost of notice, Rs.5,000/- towards cost of proceedings and Rs.3,000/- towards traveling and other expenses and any other reliefs the Forum deem fit in the matter.
    2. The case of the Complainant is that he is the owner of Hero Honda Motor Cycle bearing Regd. No.KA20 K 8736 having insurance cover for the period
    Contd…….2
    23.8.2004 to 22.08.2005. The Complainant while riding the said vehicle met with a road accident on 23.2.2005 at about 2.30 a.m. at N.H.17, Opp. Old Police Station Manur Kota, Udupi Taluk and sustained severe and grievous head injury other injuries.

    3. The Complainant submits that section III of the contract of insurance deals with personal accident cover for owner/driver in the accident apart from other injuries, the Complainant got sustained loss of hearing power in his left ear and hearing power of right ear is slowly diminishing in spite of the best treatment he could not recover the lost hearing power. Thus, the Complainant is victim of total disablement from accidental injury and he is entitled to be compensated to Rs.1,00,000/- as per the contract of insurance. Immediately after the accident the Complainant lodged claim before the Opposite Parties who sent him a cheque for Rs.1,200/- dated 15.11.2005 without any basis, which the Complainant was compiled and constrained to return to the Opposite Parties and admitted before the Civil Judge (Jr.Dvn.) and Addl. Motor Accident Tribunal, Kundapura in MVC No.464/2005 filed by the Complainant against the Opposite Parties. The case was perused till 22.08.2008. The Complainant is consumer of insurance services from Opposite Party which they failed to provide. Non-honouring of accidental claim on the part of Opposite Parties are guilty of deficiency of service. Consequently, the Complainant has suffered substantial loss injury, mental agony and tension apart from permanent disablement for which the Opposite Parties are liable to compensate in adequate. Left with no alternative the Complainant got issued a legal demand notice on 10.11.2008 to the Opposite Parties calling upon them to settle the claim as per the contract of policy with the above prayed for compensation with 15% interest within 15 days of the receipt of the said notice. The Opposite Parties replied to the notice on 29.11.2008 assigning baseless reasons for repudiating the claim. The Complainant submits that the cause of action arose on 23.02.2005, 15.11.2005, 22.8.2008, 10.11.2008, 15.11.2008, 17.11.2008 and finally on 29.11.2008. Hence this complaint with the above prayer for reliefs.

    4. On admission of the complaint, notices were served on the Opposite Parties. Opposite Parties appeared through their counsel and filed the version contending that the complaint is false, misconceived, fictitious, vexatious and not maintainable in law or on merits. The above complaint has been filed to extract unlawful monetary gain if possible. The Opposite Parties deny the entire claim of
    Contd……3
    the Complainant. Opposite Parties admit that ownership of the vehicle Regd. No.KA20 K8736. Opposite Parties admit the insurance cover for the period from 23.08.2004 to 22.08.2005 but denied the accident on 23.2.2005 at about 2.30 am at NH 17 and the Complainant is put to strict proof of this. Opposite Parties deny the alleged accident, the Complainant has lost hearing power in his left ear and hearing power of that of right ear is slowly diminishing or the alleged deafness cannot be cured and resulted in total disablement and entitled for compensation of Rs.1,00,000/- as per clause III of the contact of Insurance. The disability pleaded by the Complainant is false and denied. Opposite Parties submit that the accident occurred due to rash and negligent driving of driver Dinesh Nayk who does not have valid driving licence on that date of accident. The Complainant was pillion rider and had no licence on the date of alleged accident. The alleged accident occurred due to the own fault of petitioner and his driver and was admittedly not caused by any external and visible means. Under such circumstances the Opposite Parties are not liable to pay the compensation to the petitioner.

    5. Complainant has not forwarded the claim belatedly and considering the claim as per rules the Opposite Parties forwarded a cheque for Rs.1,200/- towards full and final settlement which was refused by the Complainant without basis. The Complainant cannot compel the Opposite Parties to honour the terms of insurance when the claim of the Complainant barred under the exemptions of the policy. The legal notice of the Complainant has been replied properly with true facts. The reply may be read as part of this version and further the written statement in MVC No.464/2005 and MACT, Kundapura may also be read as part of this version.

    6. The cause of action is pleaded by the Complainant is false and the claim is barred by limitation. The Complainant is not a ‘consumer’ and this Forum has not got the jurisdiction to decide the false complaint of the Complainant. Whatever the claim of the Complainant is governed by the terms, exceptions, limitations of insurance policy and the Complainant without affording for the remedies provided under the policy cannot knock the doors of this Forum. The Complainant deliberately failed to prosecute the MVC before the MACT, Kundpaura and got
    dismissed the same for his own fault and cannot fight the same before this Forum. Hence this complaint is liable to be dismissed. The Opposite Parties submit that without prejudice to the contention their liability if any is limited in paying the
    Contd…..4
    compensation as provided under the policy is nothing else. The Opposite Parties are not liable for paying interest for unreasonable delay in filing the complaint. The Complainant cannot neglect his claim forwarded in personal accident claim form dated 31.08.2005 as he is estopped from pleading to establish the same. The Opposite Parties reserve their right to file additional version if circumstances so warrant and prayed for dismissal of the complaint with exemplary cost.

    7. Complainant filed 8 documents in support of his claim marked as Ex.C-1 to Ex.C-8 and Opposite Parties filed 7 documents marked as Ex.R-1 to Ex.R-7. Parties filed affidavits, interrogatories and reply affidavits. We heard the parties. These are the materials placed before this Forum to decide the complaint. The issues that arise out of these for decision are :
    1) Whether the complaint is barred by limitation?
    2) Whether the Opposite Parties settling the claim for Rs.1,200/- amounts to deficiency in service?
    3) Whether the Complainant is entitled for the reliefs?
    4) What Order?

    Point No.1 & 2:
    8. The Complainant argued that the Opposite Parties had admitted the ownership of the vehicle, the insurance coverage, also admitted the accident. The Opposite Parties have got up manipulated and concocted certain documents and produced them before this Forum. The Opposite Parties produced Ex.R-7 the calculation sheet Misc. Accident claim Scrutiny form for which no explanation or basis is found in any of the papers submitted by the Opposite Parties or in their arguments, version, affidavits or anywhere else. The Complainant argued that Ex.R-5 is got up and fabricated for this purpose only since the period shown in form is 25.1.2005 to 24.01.2006 whereas the policy was for the period of 23.08.2004 to 22.8.2005. The policy issued by the Opposite Parties is marked as Ex.C-1 which is a single policy and there are no other policies separately issued for personal accident claim and have been contested and produced Ex.R-5 as documentary evidence by the Opposite Parties. Thus there cannot be two policies on a vehicle by the same company to cover two different terms.
    Complainant denies document No. Ex.R-6. The Ex.R-7 was not produced by the Opposite Parties at any time before the MACT, Kundapura. Opposite Parties have admitted returning of cheque for Rs.1,200/-.
    Contd……5
    9. The Complainant argued that page 7 & 8 of the terms and conditions as regards personal accident cover to pay driver and unnamed pillion passenger, then referred to and accident claim form wherein claimed Rs.500/- per week or total sum of Rs.16,786/- in the declaration. The Opposite Parties have failed to explain how they calculated Rs.1,200/- even today before this Forum. As per Ex.R-5, 6 and 7 it appears that the claim is not settled, the Complainant is under regular treatment means it is permanent deficiency.

    10. The Opposite Party has failed to comply with terms and conditions of the policy and they failed to inform the Complainant on what basis they have arrived at the amount, therefore they have indulged in Unfair Trade Practice and that is deficiency in service. Therefore, prayed to allow the complaint with prayed for reliefs.

    11. The Opposite Party argued that the Complaint is barred by limitation and this Forum has no jurisdiction to try the false claim of the Complainant. Opposite Party drew the attention to Ex.C-1 Driver clause under rule 3 of the Central Motor Vehicle Act, 1989 and Section III of terms and conditions at page 2 of the policy. The Opposite Party submitted that the present ailment or the claim does not fall within the purview of the Section III – Personal Accident cover for owner-driver. Opposite Party referred to para 2 of the complaint and then further referred to para 3 of Ex.R-1, wherein the cause of accident are different. The Complainant filed FIR copy marked as Ex.C-2 at page No.3, it is stated that the “Pillion rider Ramesh Pai” and the rider was one Dinesh Nayak. Therefore there is no conformity in the statement and at any cost the Complainant was not riding the vehicle at the time of accident. The insurance is available to driver and co-driver and not to pillion rider. Without admitting that the Complainant had injuries in the accident, whether it is covered under Section III of the policy conditions under personal accident is a question to be looked into. The coverage available under this section is only to owner-driver or co-driver traveling in the insured vehicle, if sustains injuries and not for the pillion rider and further the claimed injuries of the Complainant whether it is permanent disability is not proved by the Complainant.
    Complainant produced Ex.C-4 a treatment certificate issued by Kasturba Hospital, Manipal signed by Asst. Professor, Dept. of Neurosurgery which doesn’t speak the permanent disability which only says “he had reduced hearing in the left ear. He was advised to regular follow up in neurosurgery and ENT departments.
    Contd…………6
    12. The Neurosurgeon is not an ENT specialist, therefore he is not authorized to issue permanent disability certificate. It can only be issued by ENT specialist to prove this certificate that doctor has not been examined. The original certificate is not produced. The certificate is dated 30.4.2005. There is no proof after this date any certificate is produced. In the MACT case there was no mention of disability in the evidence. Therefore no compensation can be given. The accident occurred on 23.2.2005 and no claim has been made since then for personal injury. The Complainant has withdrawn the case from MVC in 2008. Therefore, the cause of action is not sustainable. There are two policies under this scheme, one is for the vehicle another is for personal accident. Ex.R-5 is the personal accident policy and Ex.C-1 is Motor Vehicle Policy. Accordingly the claim was settled in accordance with personal accident policy on full and final basis. The Complainant failed to produce driving licence. The Opposite Party relied on Section III(c) of Ex.C-1 and prayed that the claim is barred by limitation, there is no disability proof and the complaint is filed in December 2008. Therefore it may be rejected outright.

    13. We observe from the documents and arguments of both the parties that the Complainant had filed a MVC Case before MACT, Kundapura and the Complainant had withdrawn the case from MACT. On perusal of the affidavit Ex.R-1, the affidavit sworn by the Complainant before the MACT states:
    “I was walking along the road at the time when the said vehicle dashed me. I say that as an impact I sustained grievous injuries as stated in the would certificate”.

    and the Ex.C-2 - FIR at page 2 & 3 states:
    “1. DINESH NAYAK RIDER OF MOTOR CYCLE REG NO. KA 20-K 8736”.
    “12. First Information Contents:
    ON 23/02/05 AT 2.30 Hrs AT N.H.17, NEAR OLD POLICE STATION,
    MANUR VILLAGE THE ACCUSED RIDER OF MOTOR CYCLE REG NO.KA
    20-K 8736 RIDE THE3 SAID VEHICLE IN RASH AND NEGLIGENCE
    MANNER AND DASHED THE PEDASTRIAN BY NAME NAGRAJ, WHEN HE
    WAS WALKING ASIDE OF N.H.17. AS A RESULT THE ACCUSED RIDER
    AND PILLION RIDER RAMESH PAI(COMPLAINANT BROTHER) FELL ON
    ROAD WITH MOTORCYCLE AND INJURIES CASUED TO
    HEAD, MOUTH, NOSE, HAND AND EAR OF COMPLAINANT BROTHER AND
    ADMITTED TO K.M.C. MANIPAL FOR TREATMENT AND INJURIES CASUED TO HEAD OF PEDASTRAIN AND ADMITTED TO KUNDAPURA GOVT.
    HOSPITAL AS INPATIENT ETC (COMPLAINT ATTACHED)”
    Contd…………7

    and the complaint at para 2 states:
    “The Complainant while riding the said vehicle met with a road accident on 23.02.2005 at about 2.30 a.m. at NH 17, Opp. Old Police Station, Manur Kota, Udupi Taluk and sustained severe and grievous head injury and other injuries”.

    14. On comparing these statements of the same person it makes clear that the Complainant has not come before the Forum with clean hands since his statements are not inconformity with one another. Therefore, we are of the opinion that the Opposite Parties settling the claim for Rs.1,200/- is not deficiency in service. The Opposite Party in the version and arguments submitted that the complaint is barred by limitation. Since the MACT case was withdrawn by the Complainant of his own, there is no order as to liberty to the complaint u/s Article 14 of the Indian Limitation Act to approach any other Forum for redressal of the complaint. In the circumstances, Complainant has no case to agitate. Hence we conclude that there is no deficiency in service by Opposite Party and there is no cause of action to the Complainant to file this complaint. Hence we answer point No.1 in the Affirmative and Point No.2 in the Negative.

    Point No.3 & 4:
    15. In view of the Affirmative answer to point No.1 and Negative answer to Point No.2, the Complainant is not entitled for any reliefs. Hence, point No.3 is answered in the Negative and pass the following:
    ORDER
    The complaint is dismissed. The Parties to bear their own cost.
    (Order dictated to the Stenographer, after the same is typed, corrected and pronounced in the open court on this the 17th day of March 2009)


    (BEKAL LAKSHMANA NAYAK) (P.C.GOPAL)
    MEMBER PRESIDENT
  • adminadmin Administrator
    edited September 2009
    ORDER


    COMPLAINT FILED: 26.12.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 28th MARCH 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2806/2008


    COMPLAINANT Sri. P. Manirajan, S/o. Palaniswamy, Residing at No. 71/10, Annipura Road, Sudhama Nagar, Bangalore – 560 027. Advocate (M.V. Nanjunda Gowda)

    V/s.

    OPPOSITE PARTIES
    1. The Manager, Oriental Insurance Co. Ltd., No. 14-158/1, Palace Extension, Kuppam – 517 425 Chittor District. Andhra Pradesh.
    2. The Manager, Oriental Insurance Co. Ltd., Reptd. by its Regional Office, No. 44/45, Leo Shopping Complex, Residency Road, Bangalore – 25. Advocate (Manoj Kumar M.R.)

    O R D E R

    This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a sum of Rs.2,50,000/- towards the insurance claim along with litigation cost and for such other relief on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant is the R.C. Owner of the lorry bearing No. KA-05-A-2166. OP covered the insurance of the said vehicle which was valid from 13.05.2005 to 12.05.2006. Complainant entrusted the said lorry to one driver Dharnesh, who had a valid and effective driving licence to drive the said vehicle. In the month of December 2005 the Dharnesh after informing the complainant went to Channarayapatna, thereafter complainant did not hear about him. On enquiry complainant came to know that the said Dharnesh met with the motor cycle accident and died. In the meantime the lorry entrusted to Dharnesh was found missing. Then complainant lodged complaint to Wilson Garden Police Station, Bangalore on 21.04.2006. Police registered the C. Misc. Case, but unable to trace out the vehicle. Then he made a claim to the OP, OP failed to settle the insurance claim. Thus complainant felt the deficiency in service on the part of the OP. He felt the carelessness and negligence on the part of the Police concerned, hence he lodged a private complaint against them, which is pending for trial before the Magistrate Court. Complainant even got issued the legal notice to OP on 18.10.2008. Again there was no response. Under the circumstances he is advised to file this complaint and sought for the relief accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant is bound by the terms and conditions of the policy. Complainant is expected to inform the OP about the loss or theft of the vehicle immediately, but he took his own sweat time of more than 2 years. So for so good complainant has not made any claim as contemplated by producing the necessary documents to settle it. Actually OP has not repudiated the claim. It is all because of the carelessness and negligence of the complainant himself, who kept mum for more than 3 years after the alleged loss of the said lorry he is facing the problem and inconvenience. Complaint is barred by time. Complainant says that he has filed a private complaint against the Police and one Dharnesh, which is pending before the Magistrate Court. Complainant has failed to establish the deficiency in service on the part of the OP. When the complainant has not fulfilled the terms and conditions of the policy, he is not entitled for the settlement of the claim. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.



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


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


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


    R E A S O N S


    6. At the outset it is not at dispute that the complainant is the R.C. Owner of the vehicle bearing No. KA-05-A-2166 and OP covered the insurance of the said lorry which was valid from 13.05.2005 to 12.05.2006. Now it is the contention of the complainant that he entrusted the said lorry to one Dharnesh the driver who possessed the valid and effective driving licence in the year 2005. For this contention basically there is no proof. Further complainant says in the month of December 2005 the said driver Dharnesh informed him that he is going to his native place Dodderi Kaval Village, Channarayapatna for Sankranthi Festival and he will be back soon. For this submission also there is no proof. Complainant waited for some time, but his driver did not return. On enquiry he came to know that he met with a road traffic accident and succumbed to the injuries. When the said accident took place, at what place, at what time is not known. No document is produced to that effect.


    7. Further complainant says that in the month of April when he did not trace the driver and the lorry, he filed a missing complaint to the Police. What made him to keep mum for more than 4 months without initiating criminal action and without intimating the OP about the loss or the theft of the said lorry immediately is not known. A complaint was lodged to the Police Commissioner, copy is produced. Why Police registered only C. Misc. complaint and failed to register the regular case of theft and issue FIR is not known. So OP is kept in dark about the loss of the said lorry or of the theft. So for so good the concerned Police are unable to apprehend the accused, trace out and recover the property. For that OP cannot be blamed. Further complainant himself says that he lodged a criminal complaint against the said Dharnesh who is no more and the Wilson Garden Police Station S.H.O. and that complaint is pending for trial. So all these acts and deeds of the complainant is nothing to do with the OP.


    8. As per the terms and conditions of the policy it is incumbent upon the complainant to inform the OP about the theft or loss or damages caused to the said vehicle immediately. Though complainant says that the said theft was occurred in and around December 2005, for the first time he informed the OP by causing the legal notice on 18.10.2008 that is nearly after lapse of about 3 years and this complaint is filed in the year 2008. Under such circumstances we find there is a substance in the defence set out by the OP that the complaint is barred by time. So for so good, complainant has not made the claim to the OP in a prescribed performa by furnishing all the necessary documents. There is no proof that OP has repudiated the said claim at any point of time. That means to say complainant did not accrue any cause of action to initiate this complaint. Even today the rights of the complainant are still open to submit the claim petition to OP along with the required documents for processing, for considering and settling the said claim under the purview of law and terms and condition of the policy. When such an equally efficacious relief is readily available to the complainant to redress his grievance, in our view the present complaint appears to be devoid of merits.


    9. As already observed by us in the above said paras, there is no proof of deficiency in service. As the complainant has not made claim as contemplated. No fault lies with the OP in considering the same. There is no repudiation of the said claim. Under such circumstances complaint appears to be premature. Hence for these reasons we find the complainant is not entitled for the relief claimed. In view of our observations made in the body of the order complainant has got the equally efficacious relief to redress his grievance he can do so, if so advised. With these observations we answer point nos.1 and 2 accordingly and proceed to pass the following:


    O R D E R


    The complaint is dismissed. In view of the nature of dispute no order as to costs. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 28th day of March 2009.)
  • adminadmin Administrator
    edited September 2009
    -: ORDER:-
    This complaint is filed for a direction to the Opposite Party to pay Rs.6,70,000/- with interest thereon at 18% Per Annum from the date of complaint on the following grounds:-
    2. The case of the complainant is as under:-
    The complainant had purchased a survey instrument bearing No.Lecia TC1201 Total Station Instrument Sl.No.222491 along with accessories from Elcome Technologies Pvt. Ltd., for Rs.6,70,000/- on 11.11.2006. The said instrument along with other two instruments was got insured with Opposite Party on 04.01.2007. On 16.01.2007 while the employees of the complainant were doing survey work given by RITES Ltd., on R.V.Road, Bangalore at about 10.45 a.m. a two wheeler rider drove his vehicle in a rash and negligent manner and dashed against the said instrument stand. As a result, the instrument stand as well as the instrument fell down and got damaged. The rider of the two wheeler fled away from the scene. The employee of the complainant lodged the complaint with Basavanagudi police on the same day and the complaint was registered as C.Mis.No.3/2007 at about 4.45 p.m. The complainant informed the authorities of the insurance company over phone regarding the accident and asked for the advice. He was advised to send the instrument to the company which supplied it and assess the quantum of damage and that they will deploy one of the surveyors to inspect the damaged instrument at Gurgaoun, Haryana State where the Head Office of Elcome Technologies Pvt. Ltd is situated. Believing the assurance of the Opposite Party, the complainant sent the instrument to Guragon, Harrying on 17.01.2007. Elocme Technologies Pvt., Ltd., returned the damaged instrument with covering letter dated:30.01.2007 stating that the damage to the instrument is beyond economical repair. The Opposite Party deputed Mr.Aravind R.Nayak a surveyor who conducted the survey of the damaged instrument on 31.08.2007. The complainant provided all the details required by the surveyor and addressed the letters dated:08.01.2008, 10.01.2008, 25.02.2008, 20.03.2008 and 12.06.2008 to the Opposite Party. By the letter dated:07.07.2008, the Opposite Party repudiated the claim. The reasons narrated by the Opposite Party for repudiating the claim are very flimsy and are not reasonable. He sent another letter dated:05.08.2008 demanding the Opposite Party to consider the claim. The Opposite Party sent reply dated:26.08.2008 confirming the earlier decision as undertaken in the letter dated:07.07.2008. At the time of insuring the instrument, the agent of the Opposite Party had inspected the same and verified the concerned bills and papers and had collected the premium. It is thereafter the insurance policy was issued. When the instrument met with a road accident, the Opposite Party started giving some or the other reasons in order to deny the genuine claim and thereby cause loss, injury and hardship to the complainant. Even now the damaged instrument is lying idle. Hence, the complaint.
    3. In the version, the contention of the Opposite Party is as under:-
    The contention of the complainant that he purchased the instrument in question along with accessories for Rs.6,70,000/- as per the bill dated:07.11.2006 is denied. The bill dated:07.11.2006 does not bear the signature and the seal of the company from which the complainant purchased the instrument. In spite of demand, the complainant failed to furnish the original bill. Without disclosing the true facts, the complainant had obtained the insurance policy from the Opposite Party on 04.01.2007. The policy was obtained without furnishing the receipt dated:07.11.2006 and without producing the instrument for inspection. The alleged accident dated:16.07.2007 is denied as false and no such accident had taken place on the said date. The complaint alleged to have been filed on 16.07.2007 before Basavanagudi police is denied as false. No FIR has been submitted by police pursuant to the complaint and the complainant has not furnished the details of the accident to police. The acknowledgment in C.Mis.No.3/2007 has been obtained by the complainant with intention to claim the insurance amount. The complainant did not intimate the Opposite Party about the alleged accident and no instructions were given to the complainant to send the instrument to the Company for necessary repairs. The contention that the Company returned the instrument on 30.01.2007 intimating that the instrument is beyond repairs is denied as false. The complainant did not provide the instrument for physical verification by the surveyor at the time of inspection. By the letter dated:02.01.2008, the surveyor called upon the complainant to furnish necessary particulars. But the complainant has not furnished the particulars till today. In spite of repeated demands and requests, the complainant did not furnish the details as called for by the Opposite Party. Having found that the complainant had obtained the insurance policy without disclosing the true facts, did not intimate the incident in time, did not provide the instrument for inspection the claim was repudiated on 17.07.2008 and the same is just and proper. The instrument was not damaged in the accident dated:16.01.2007. It appears that the complainant had obtained the insurance policy in respect of the damaged instrument. Therefore, there is no deficiency in service on the part of the Opposite Party and the complaint is liable to be dismissed.
    4. In support of the respective contentions, both parties have filed affidavits. The complainant has produced copies of documents. The Opposite Party has not produced any documents. The learned counsel on both sides have filed written arguments.
    5. The points for consideration:-
    1.[FONT=&quot] [/FONT]Whether the complainant has proved deficiency in service on the part of the Opposite Party?

    2.[FONT=&quot] [/FONT]Whether the complainant entitled to the relief prayed for in the complaint?

    6.[FONT=&quot] [/FONT]Our findings are:-
    Point No.1 : In the Affirmative
    Point No.2 : As per final order
    For the following:-
    -:REASONS:-
    7. The fact that the survey instrument belonging to the complainant was insured with Opposite Party and the insurance policy was in force as on the date of alleged accident is not disputed. In support of the contention that the rider of a two wheeler dashed against the instrument on 16.01.2007 at about 10.45 a.m. and as a result the instrument fell down and sustained damages, the complainant has produced the copy of the complaint given to police on 16.01.2007. Though the complaint was lodged alleging the accident by a two wheeler, it is not known why the policy registered the complaint only as C.Mis. It is the specific contention of the complainant that soon after the accident he informed the Opposite Party for further course of action, he was advised to send the instrument to the company which supplied it with assurance to send one of the surveyor to inspect the instrument at Guragon and therefore he sent the instrument to Guragon on 17.01.2007. In the letter dated:08.01.2008 also the complainant informed the surveyor appointed by the insurance Company that as per the advise of the Insurance Company the damaged instrument was sent to the Company for assessment of damage and after inspection, the company returned the instrument along with the letter dated:30.01.2007 informing that the instrument is beyond economic repairs. The surveyor appointed by the insurance company had addressed a letter to the complainant on 02.01.2008 disclosing that he conducted survey of the instrument on 31.08.2007. Therefore, when the surveyor himself admitted for having inspected the instrument on 31.08.2007, we do not find any substance in the contention of the Opposite Party that the instrument was not made available to the surveyor for physical verification as has been contended in para-6 of the version. It also becomes difficult to believe the contention of the Opposite Party in para-2 of the version that the complainant had not furnished the receipt dated:07.11.2006 and had not produced the instrument for inspection at the time of obtaining the insurance policy. When the Opposite Party admits for having issued the insurance policy, it has to be presumed that only after verifying the necessary documents and inspecting the instruments, the Opposite Party had issued insurance policy. We also do not fined any substance in the contention of the Opposite Party that the bill towards purchase of the instrument did not contain the signature and seal of the company, because the copy of the invoice dated:07.11.2006 contains the signature of the authorized signatory of the company. We also do not find any substance in the contention of the Opposite Party that the complainant failed to furnish the particulars required by the surveyor as per the letter dated:02.01.2008 because form the copies of the documents produced by the complainant it is seen that on receipt of the letter dated:02.01.2008 from the surveyor, the complainant furnished the particulars through the letter dated:08.01.2008 and 10.01.2008. In the letter dated:02.01.2008 the surveyor himself has clearly mentioned that he conducted the survey of the instrument on 31.08.2007 which is about eight months after the date of the alleged accident in which the instrument was damaged. In the version, the Opposite Party has not disclosed when they appointed and deputed the surveyor to assess the damage caused to the instrument. In spire of the fat that the surveyor inspected the instrument on 31.08.2007 the report submitted by the surveyor is not produced by the Opposite Party and the same is withheld. The Insurance Company took one and half years from the date of the accident to repudiate the claim. The Opposite Party repudiated the claim only on 07.07.2008. This inordinate delay in taking decision on the claim itself amounts to deficiency in service on the part of the Opposite Party. Even in the letter dated:07.07.2008, the Opposite Party has stated that for repudiating the claim, the report of the inspector and surveyor was taken into consideration. This makes it clear that the surveyor had submitted the report. But for the reasons best known to it, the Opposite Party has withheld production of the report submitted by the surveyor. As a consequence, we have no opportunity to consider the report submitted by the surveyor with regard to the damage to the instrument. From a reading of the letter dated:07.07.2008 we are unable to make out that the op repudiated the claim on reasonable grounds that too one and half years after the alleged accident. In this view of the matter, in our opinion the repudiation of the claim by the Opposite Party is not on valid or acceptable grounds and therefore the act of the Opposite Party amounts to deficiency in service. In the letter dated:30.01.2007, the Company which supplied the instrument to the complainant has clearly mentioned that the instrument is beyond economic repairs. In that event, the Opposite Party has to settle the claim on total loss basis. This conclusion is inevitable because the Opposite Party has withheld production of the report submitted by the surveyor disclosing the damage caused to the instrument in the accident. As per the invoice, the value of the instrument is Rs.6,70,000/-. Therefore, the complainant is entitled to claim Rs.6,70,000/- from the Opposite Party on total loss basis. On settlement of the claim, the complainant is liable to surrender the damaged instrument to the insurance company. In the result, we pass the following:-
    -:ORDER:-
    • The complaint is ALLOWED.
    • The Opposite Party is directed to pay Rs.6,70,000/- to the complainant under the insurance policy towards damage to the survey instrument on total loss basis together with interest at 6% Per Annum from 16.01.2007 till the date of payment subject to the complainant surrendering the damaged instrument. The Opposite Party shall also pay costs of Rs.2,000/- to the complainant. Compliance of this order shall be made within eight weeks from the date of communication.
    • Send a copy of this order to both parties free of costs immediately.
    • Pronounced in the Open Forum on this the 30th DAY OF MARCH 2009.
    Sd/- Sd/-
    MEMBER PRESIDENT
  • adminadmin Administrator
    edited September 2009

    DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA

    No.2083/1, Subhash Nagar, 1st Cross, Mandya-571401

    consumer case(CC) No. CC/08/135

    Sri.C.D.Mariswamy
    ...........Appellant(s)
    Vs.

    The Oriental Insurance Co., Ltd.,

    Oriental Insurance Co.,
    ...........Respondent(s)

    BEFORE:
    1. Smt.A.P.Mahadevamma
    2. Sri.M.N.Manohara
    3. Sri.Siddegowda


    Sri.Siddegowda, President

    1. This complaint is filed under section 12 of the Consumer Protection Act 1986, for insurance claim of Rs.1,25,000/- with compensation of Rs.25,000/-.


    2. The case of the complainant is that he is the owner of Tractor and Trailer bearing Reg. No.KA-11-7150-7151. The said vehicle was insured with the Opposite party Insurance Company under policy No.422800/47/ 2007/36 valid from 03.05.2006 to 02.05.2007. The driver of the tractor and trailer namely Sri.C.D.Ravi had parked the trailer on 07.04.2007 near Garibi Colony, Rudrakshipura Village bringing the tractor near the house of the complainant. On the next day, he noticed missing of the trailer and the complainant made search for the said vehicle and it was not traced out. So, he lodged a complaint before the Maddur Police in Crime No.179/2007 and after investigation, police filed C-report to the Court, stating that trailer could not be traced out. The complainant submitted necessary documents along with the claim form to the 1st Opposite party for settlement of the claim. The Opposite party has repudiated the claim stating that vehicle was being used for commercial purpose, which is false. The repudiation of the claim is illegal. Therefore, the present complaint is filed.


    3. The Opposite party has filed version. Admitting that the tractor and trailer were insured with the Opposite party Insurance Company for a period from 03.05.2006 to 02.05.2007, but the vehicle was insured under Kissan Package Insurance which covers only the agricultural purpose and the premium for the policy was paid by the complainant only for the said purpose and not for any commercial purpose. The vehicle was not comprehensively insured. According to the complainant and also records, the complainant had hired the said vehicle to brick factory belonged to one Sri.Ramalingaiah and on 07.04.2007 when he parked the said vehicle at factory premises it was stolen. The Opposite party denies the theft of the vehicle and alleges nexus between the owner and the thief. Even, if the vehicle has been stolen, the Opposite party was not under obligation to indemnify, since there is breach of conditions, because within 24 hours of loss, complaint should be filed to the police. Further, notice shall be given in writing to the company immediately upon the occurrence of the loss or theft. But, the complainant gave the complaint of theft to the police on 25.04.2007 after lapse of 18 days and also Opposite party has not received any kind of intimation regarding theft of the vehicle from the complainant and only on 26.04.2007 the same was brought to the knowledge of the complainant. After scrutinizing the records and investigation report, the Opposite party repudiated the claim for violation of the conditions. There is no deficiency in service. Therefore, the complaint is liable to be dismissed.


    4. During trial, the complainant is examined along with one witness and complainant produced Ex.C.1 to C.6 documents. On behalf of the Opposite party one witness examined and Ex.R.1 to R.4 documents are produced.

    5. We have heard both sides.

    6. Now the points that arise for our considerations are:- 1. Whether the repudiation of the claim by Opposite party is proper? 2. Whether the Opposite party has committed deficiency in service? 3. Whether the complainant is entitled to the insurance amount?

    7. Our findings and reasons are as here under:-

    8. The undisputed facts are that the complainant is the owner of the Tractor and trailer bearing Reg. No.KA-11-7150-7151 and the said vehicles were insured with the Opposite party for a period from 03.05.2006 to 02.05.2007.

    9. According to the complainant, on 07.04.2007 the driver had parked the trailer near Garibi Colony, Rudrakshipura Village and next day it was missing and complainant made search and it was not traced out, thereafter, he lodged a complaint on 25.04.2007. Ex.C.1 & C.2 reveals that the Maddur Police has registered FIR No.349/2007 and after investigation have submitted the C-report as the vehicle was not traced and the Court has accepted the same. Further, according to the complainant, he submitted the claim form with necessary documents to 1st Opposite party for settlement of the claim. But, the Opposite party repudiated alleging that the vehicle was being used for commercial purpose.


    10. According to the complainant, the repudiation is illegal, because the vehicle was not at all used for hire purpose and the vehicle was stolen which was parked near Garibi Colony, Rudrakshipura. But the contention of the Opposite party is that in the complaint before the police, it is clearly stated that tractor and trailer was left for hire to brick factory of Sri.Ramalingaiah which is near Garibi Colony of Rudrakshipura and on 07.04.2007 after working till evening as usual the trally was parked in the brick factory and driver brought the engine near the house and since the next day was Sunday which is a holiday he did not go to factory and he went to factory on Monday morning but the trally was not there and searched and not traced. Further, even in the letter by the complainant to the Opposite party as per Ex.R.4, it is clearly stated that after completing the work in brick factory till evening on 07.04.2007 as usual the trailer was parked there and engine was brought to their house, since Sunday was holiday he did not go to factory and then on Monday i.e., 09.04.2007 morning when he went to factory, the trally was not there and his brother, the driver of the tractor informed the same to the complainant and they searched, but was not traced, therefore it was stolen and complaint was lodged to the police. So, on the basis of averments made in the complaint to the police and Ex.R.4 letter to the Opposite party by the complainant, it is contended by the Opposite party counsel that the vehicle was used for commercial purpose, though the tractor was insured under Kissan Package Insurance which covers only the agricultural purpose and the premium for the policy was paid for the said purpose only and not for any commercial purpose and hence, the claim was rightly repudiated by the Opposite party, because of the violation of the terms of the policy. The Opposite party has produced Ex.R.1 Kissan Package Insurance policy brochure which reveals the conditions and Ex.R.2 is the policy issued to the complainant’s vehicle under Kissan Package Insurance Policy. Though the complainant has deposed that the tractor and trailer were not at all used for commercial purpose i.e. hire to the brick factory, but there is clear admission in the complaint before the police and also in the letter Ex.R.4 that the tractor and trailer were hired to brick factory work and therefore, the trailer was parked in the brick factory premises. As per the decision of Hon’ble National Commission in R.P.No.681/2006 decided on 23.10.2008, the statement given by the complainant in FIR before the police is admissible before the Forum.

    Therefore, it proves that the trailer of the complainant was stolen when it was parked near the brick factory which was hired to the brick factory owner and so it was commercial purpose. Though, it is established that the vehicle was stolen when it was being used for commercial purpose, we have to consider Ex.R.1 Kissan Package Insurance Policy and Ex.R.2 the policy given to the complainant. In Ex.R.2 the policy in respect of the complainant’s vehicle, the agricultural implements, the tractor and trailer were insured for Rs.5,06,500/- and premium of Rs.8,100/- has been paid, but no conditions are imposed in the policy Ex.R.2. Even in Ex.R.1, the Kissan Package Insurance Policy brochure at Section XV in respect of agricultural tractors, no conditions are imposed not to use for any other purpose other than agriculture.

    It is commonly known that agricultural operations will be carried only for a limited period and not through out the year and therefore, the tractor and trailer cannot be used for agricultural purpose through out the year and to meet the expenses and also payment of loan for the tractor, the farmers use the tractor and trailer for other purpose like; transporting sand, mud, bricks, stones etc. When there is no specific condition in the policy Ex.R.2 that the tractor and trailer should be not used for any other purpose other than agriculture, it cannot be said that the complainant has contravened the terms of the insurance policy. Even though, there is some delay in lodging the complaint to the police about the theft of the trailer and information to the Opposite party about the theft it is only 15 days and according to the evidence of the complainant, he was making search in the neighbour area and thereafter he lodged the complaint.

    There is no evidence by the Opposite party that there is difference of premium amount for the insurance, in case tractor used for agricultural purpose only and extra premium will be levied, in case tractor used for other purpose apart from agriculture. So, when there is no prohibition in the Insurance Package Ex.R.1 and the policy Ex.R.2 not to use the tractor and trailer for any other purpose other than agriculture and in the policy no conditions is laid down, the Opposite party is not able to point out which condition of the policy is violated by the complainant. Under these circumstances, when there is no breach of law or breach of policy and when the theft of trailer is proved, the repudiation by the Opposite party is not justified and therefore, the Opposite party has committed deficiency in service in repudiating the claim.


    11. The complainant has sought for Rs.1,25,000/- as the cost of trailer and compensation of Rs.25,000/- for mental agony. The price of the trailer is not disputed by the Opposite party at all. There is no evidence that it is a old trailer and depreciation has to be made. Under these circumstances, the Opposite party is liable to pay the insurance amount of Rs.1,25,000/-. The complainant has sought for compensation of Rs.25,000/- for mental agony and shock, but under these circumstances of the case, the complainant is not entitled to the compensation.

    12. In the result, we proceed to pass the following order; ORDER The complaint is allowed, directing the 1st Opposite party to pay insurance amount of Rs.1,25,000/- with cost of Rs.2,000/- within 6 weeks from this day, failing which it is liable to pay interest at 9% p.a. from the date of complaint till realisation. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 12th day of March 2009). (PRESIDENT) (MEMBER) (MEMBER)




    ......................
    Smt.A.P.Mahadevamma

    ......................
    Sri.M.N.Manohara

    ......................
    Sri.Siddegowda
  • adminadmin Administrator
    edited September 2009

    DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MYSORE

    No.845, 10th Main, New Kantharaj Urs Road, G.C.S.T. Layout, Kuvempunagar, Mysore - 570 009

    consumer case(CC) No. CC/08/388

    Prahalad Karanum
    ...........Appellant(s)
    Vs.

    Oriental Insurance Co. Ltd & one another

    Heritage Health Service Pvt. Ltd.,
    ...........Respondent(s)

    BEFORE:
    1. Smt.Y.V.Uma Shenoi
    2. Sri D.Krishnappa
    3. Sri. Shivakumar.J.

    Complainant Prahalad Karanum, S/o Late K.Narayana Rao, R/at No.2870/1, 10th Cross, 6th Main Road, V.V.Mohalla, Mysore-570002. (By Sri.C.S.Amar., Advocate)

    Vs.

    Opposite Parties 1. Branch Manager, Oriental Insurance Company Ltd., D.O.H. 2903, 1st Floor, New Muslim Hostel, Complex-1, Main, Saraswathipuram, Mysore-09 2. Incharge Manager, Heritage Health Service Pvt. Ltd., No.1102, Raheja Chambers, Free Press Journal Road, Nariman Point, Mumbai-400002. (By Sri.Jaganath Suresh Kumar., Advocate for O.P.1 and O.P.2 - EXPARTE)


    Nature of complaint : Deficiency in service Date of filing of complaint : 04.12.2008 Date of appearance of O.P. : 13.01.2009 Date of order : 26.03.2009 Duration of Proceeding : 2 MONTHS 13 DAYS PRESIDENT MEMBER MEMBER Sri.D.Krishnappa, President


    1. The grievance of the complainant who has filed this complaint against the opposite parties is, that he had visited USA during December 2006 and returned to India on 03.05.2007. That before leaving India he had obtained an Overseas Mediclaim Policy from first opposite party for a sum of 5,00,000/- US dollars by paying a premium of Rs.31,759/-, a total premium and the policy was valid from 07.12.2006 to midnight on 04.06.2007. Before he took the Mediclaim policy his health condition was fully checked up by the doctor who has given a certificate, certifying that he was in good health. During his stay in USA his health condition became worse and got admitted to Alexian Brothers St. Alexius Medical Center and was an inpatient from 28.02.2007 to 08.03.2007 and incurred a total expenditure of 52,686.78 US dollars. Then he approached the first opposite party several times for reimbursement of that amount, but the second opposite party vide his letter dated 23.05.2007 stating that policy carries specific exclusion for heart and circulatory dis-orders has repudiated his claim. Therefore, he by attributing deficiency to the opposite parties and collusion between them has prayed for a direction to the opposite parties to pay him Rs.19,50,000/- as against the total amount he is entitled Rs.26,18,405.10 by restricting his claim.


    2. The second opposite party who is duly served with the notice of this complaint has remained absent is placed exparte. The first opposite party has appeared through his advocate and filed version contending that their liability under the policy is strictly as per the terms, conditions, exclusions and endorsements contained in the policy and has stated that policy excludes All heart and circulatory dis-orders and the same is incorporated in the policy and the doctor who examined the complainant before the inception of the policy given the report that complainant was havi9ng hypertension for the last 10 years and was under treatment for the said ailment. That the second opposite party is an independent company registered under the Companies Act is a third party administrator. Any claim of a person taking an Overseas Mediclaim Policy from them with all documents will be forwarded to second opposite party who handles all the claims arising under the policies. That second opposite party has team of doctors who scrutinize every mediclaim and decide on merits. That they came to know that the complainant preferred a claim with the second opposite party in connection with the treatment, the complainant had at USA and that the second opposite party after considering specific exclusion under the policy and by taking opinion of the doctors have turned down the claim of the complainant. Medical records of St. Alexius Medical Center of USA reveal that the complainant had Hyponatremia secondary to nausea and vomiting, related increased ADH HCTZ use and volume depletion and that reveal that hyponatremia which is related use of HCTZ a medication used for the treatment of hypertension, which is excluded from the scope of the policy. This opposite party further denying other allegations of the complainant has stated that there is no cause of action for the complainant and further denying their liability has prayed for dismissal of the complaint.


    3. In the course of enquiry in to the complaint, the complainant and the Divisional Manager of the first opposite party have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced a mediclaim policy, letter of repudiation issued by the second opposite party, hospital records where the complainant took treatment at USA including the bills. The first opposite party has produced copy of the proposal form given by the complainant, copy of the policy, terms and conditions of the policy. The counsel for the complainant has filed written argument. Heard the counsel for both the parties further and perused the records.


    4. On the above contentions, following points for determination arise. 1. Whether the complainant proves that the first and second opposite parties have caused deficiency in their service in repudiating his claim for reimbursement of the medical expenditure on the ground that the complainant had suffered heart and circulatory dis-orders, which are excluded under the policy? 2. To what relief, the complainant is entitled to?


    5. Our findings are as under:- Point no.1 : In the Negative. Point no.2 : See the final order. REASONS


    6. Point no. 1:- The fact that the complainant had taken an Overseas Mediclaim Policy from the first opposite party, the policy was valid from 07.12.2006 to midnight of 04.06.2007 and that the second opposite party is the third party administrator health services is not in dispute. Similarly, that health policy taken by the complainant was covering for a sum 5,00,000/- US dollars is also not in controversy. The complainant contending to had suffered from ill-health while he was in USA was under treatment during December 2006 that is during the validity period of the insurance policy is not disputed by the opposite parties and that the complainant incurred 52,686.78 US dollars as medical expenditure is also not in dispute. But, the problem started when the claim of the complainant for reimbursement of the aforesaid medical expenditure was repudiated by the second opposite party vide their repudiation letter dated 23.05.2007. The second opposite party administrator of health services by contending that “The policy carries specific exclusion of all medical expenses incurred due to past history, ailments and any consequences attributable to accelerated by or arising there from as per the medical history.” Further stated that the policy carries specific exclusion of heart and circulatory dis-orders and therefore they are not liable to reimburse the money. The complainant questioning this repudiation of the second opposite party has come up with this complaint. Therefore, this Forum is required to find out whether repudiation of the claim of the complainant for the reason assigned by them amounts to deficiency or whether the opposite parties have acted under the conditions of the policy.



    7. Admittedly, the medical policy issued in favour of the complainant contain excluded diseases, which says “This policy excludes all heart and circulatory dis-orders.” The learned counsel representing the complainant in support of his contention in the written arguments and also orally submitted that the complainant though was a patient of hypertension, but that is nothing to do with the disease, for which the complainant has taken treatment, by further stating that hypertension is a common phenomena with most of the people and that is not a disease and thus submitted for allowing the complaint. The complainant and the first opposite party have also produced reports of St. Alexius Medical Center of USA where the complainant took treatment from 02.08.2007 till he was discharged. These diagnosis assessment and reports of the hospital where the complainant took treatment are produced by the complainant himself and they are not in dispute. Wherein the doctors of St. Alexius Medical Center, USA have noted down the past history of the complainant as hypertension on hydrochlorothiazide and it is further recorded that the complainant was taking medicines including hydrochlorothiazide. Further the case sheet produced by the complainant reveal that the complainant had past history of hypertension on a beta blocker and thiazide and the doctors of USA hospital diagnosed the disease of the complainant as hyponatremia and the same was complicated by on going administration of thiazide diuretic at home. If the case sheet of St. Alexius Medical Center it is observed that emsis probable cause of hyponatremia along with antihypernatremia medicines and the complainant problem was assessed as hyponatremia secondary to nausea and vomiting related increased ADH HCTZ use and volume depletion. HCTZ is often used in the treatment of hypertension, congestive heart failure symptomatic adema prevention on kidney stones. It is not in dispute that the complainant was taking for a long period HCTZ and its use for a long period found to have led to hyponatremia.


    8. The counsel appearing for the complainant in support of his arguments that hypertension is not a disease and it do not amounts to heart disease has relied on a decision reported in I (2008) CPJ page 258 and he has also relied upon the decisions reported in CPJ 2008 (III) page 423 of Delhi State Consumer Dispute Redressal Commission, I (2007) CPJ page 57 of NC, I (2007) CPJ page 260 of Punjab State Consumer Dispute Redressal Commission, and III (2007) CPJ page 320 NC. But, none of these decisions relied upon by the counsel for the complainant are helpful to the case on hand. Because in those cases, the contention of the insurance company that the complainant had pre-existing disease has been rejected by the State and National Commissions as the insurance company had not proved those consumers were suffering with any pre-existing diseases, by producing acceptable materials. In the case on hand prior to the inception of the policy the complainant was subjected to medical test by the second opposite party and found that the complainant had hypertension for quite long period and was also under medication policy was issued excluding heart and circulatory dis-orders. This exclusion, which is incorporated in the policy itself, was within the knowledge of the complainant. It is not the case of the complainant that he did not have this hypertension since long time and he was getting it in intermittently. On the contrary, as revealed from the medical records, the complainant has long history of hypertension and was under medication at home. It is further stated in the medical records of the complainant, that taking of ADH and HCTZ has resulted in hyponatremia, which is nothing but circulatory dis-order and heart disease. Suffering with hypertension for quite long period can be held has heart disease and that since has been excluded under the terms of the policy, the complainant is not entitled for reimbursement of the expenditure he has incurred for such disease and therefore repudiation of the claim by the opposite parties cannot be termed as deficient. As the result, we answer point no.1 in the negative and thereby pass the following order:-


    ORDER 1. The Complaint is dismissed.

    2. Parties to bear their own costs.

    3. Give a copy of this order to each party according to Rules.
  • adminadmin Administrator
    edited September 2009
    [FONT=&quot]Complainant:[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot]Mr. D.K. Shetty[/FONT]
    [FONT=&quot] 114, Smilee Greens,[/FONT]
    [FONT=&quot] Huskar Road[/FONT]
    [FONT=&quot] Goolimangala[/FONT]
    [FONT=&quot] Bangalore- 560 099[/FONT]
    [FONT=&quot] [/FONT][FONT=&quot] [/FONT]
    /[FONT=&quot]vs/[/FONT]



    [FONT=&quot]Opposite Parties:[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1.[FONT=&quot] [/FONT][/FONT][FONT=&quot]The Oriental Insurance Co. Ltd.,[/FONT]
    [FONT=&quot]City Branch IX[/FONT]
    [FONT=&quot]1 and 2, II Floor[/FONT]
    [FONT=&quot]Hosur Road[/FONT]
    [FONT=&quot]Opp. 9th Cross[/FONT]
    [FONT=&quot]Wilson Garden[/FONT]
    [FONT=&quot]Wilson Garden Post[/FONT]
    [FONT=&quot]Bangalore- 560 027[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2.[FONT=&quot] [/FONT][/FONT][FONT=&quot]M/s. Raksha TPA Pvt. Ltd.,[/FONT]
    [FONT=&quot]No.25, Ashirwad 1st Floor[/FONT]
    [FONT=&quot]29th Main, 4th B Cross[/FONT]
    [FONT=&quot]2nd Stage BTM Layout[/FONT]
    [FONT=&quot]Bangalore- 560 076 [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    O R D E R

    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]SRI. G. SIDDANAGOUD, PRESIDENT:[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the Opposite parties (Ops in short) for the payment of Rs.5,84,000/-.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] The brief facts of the case are that the complainant has been a customer of the Op 1 since 2005. The complainant took a policy for himself under Mediclaim Insurance Policy (Individual) on 07/03/2005 (hereinafter the policy), currently being Policy No.421402/48/2008/883. The above policy covers the complainant and his wife up to a sum of Rs.5,00,000/- each for any hospitalization expenses for medical/surgical treatment at any Nursing Home/Hospital in India. The policy has been renewed by the complainant regularly every year since 2005, and the complainant has been regularly paying all the premiums payable under the policy since 2005. The last premium of a sum of Rs.38,074 was paid by the complainant on 03/03/2008. The policy period ends on 06/03/2009.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] In 2008 the complainant’s wife had severe knee trouble. She was admitted in Sparsh Hospital, 29/P2, the Health City, Hosur Road, Bommasandra, Bangalore for Bilateral Total Knee Replacement Surgery on 04/05/2008. The total surgery costs were Rs.3,70,000/-. In addition to this, along with the expenses for medicines, nursing services etc., the total expenses amounted to Rs.4,02,000/-. The complainant’s wife was released on the 11/05/2008 after the surgery. After the surgery, Mrs. Latha D. Shetty was admitted again in the same hospital for Post-Surgery treatment on 25/06/2008. She was discharged from the hospital on 26/06/2008. The total cost for the Post Surgery treatment amount to almost Rs.2,50,000/-. Therefore the total medical expenses towards this treatment was approximately Rs.6,50,000/-.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] The complainant requested Sparsh Hospital to process the bills for the above mentioned medical expenses through the office of the OP NO.1 and get the bills paid under the Policy with the Op 1. Therefore, the Hospital submitted a Pre-authorization form to the Op NO.2, the TPA for clearance of the expenses till the surgery and medicines amounting to Rs.4,02,000/-. To the utter shock of the complainant, he was informed by Sparsh Hospital that the claim was refused by the Op. The said Sparsh Hospital, had received a letter from the Op2 dated 30/04/2008 stating that for the policy taken by the complainant any claims towards ‘Bilateral Knee Replacement’ would be payable only after four continuous renewal of the Policy from the date of inception. On this alleged ground, payment under the above Insurance Policy was denied for the medical expenses of the complainant’s wife.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Under the policy taken by the complainant, the complainant and the complainant’s wife, are insured against any hospitalization expenses up to Rs.5,00,000/- each. The Contract entered into by the complainant and the Op 1, when the complainant became the Op1 customer on 3/3/2005, has an exclusionary clause which lists out the expenses which are not covered by the policy, it is pointed out there is nothing in the Policy which the complainant signed in 2005, which excludes Bilateral Knee Replacement Surgery, nor did it state that such surgery would be paid for only after four continuous renewals of the policy. In order to avail of the Insurance, which was rejected without any legal grounds by the Op 2, the complainant made several calls to the Ops claiming reimbursement under his Insurance Policy commencing from 30th April 2008 onwards. Upon not receiving any positive response, on 19/05/2008 the complainant sent a letter to the Op No.1 Insurance Company, along with all the documents and bills relating to the surgery and treatment of his wife at Sparsh Hospital and requested the Op to settle the bills at the earliest. The bills for the post surgery treatment were sent later, as the treatment was still going on. The total expenses, amount to Rs.6,50,000/-. However, under the said Policy, the Op 1 was obliged to reimburse expenses upto Rs.5,00,000/-. However, there was no response to this letter from the Ops.[/FONT]
    [FONT=&quot] As the complainant did not receive any response from the Op No.1 thereafter the complainant issued a legal notice through his advocate to the Ops on 02/09/2008 informing the Ops of their serious breach of contract that the Op NO.1 had entered into with the complainant and a grave negligence and inaction on their part and called upon the OP No.1 to settle the bills of the complainant’s wife’s Surgery and medical expenses at Sparsh Hospital and the other bills connected with the post-surgery treatment of the Complainant’s wife upto Rs.5,00,000/- due to the complainant within two weeks of the receipt of the notice. However, despite this legal notice, the complainant has received no response from either of the Ops. Hence the complainant approached this forum.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Notices were sent to the Ops 1 and 2 through RPAD, the same was served on them. On the date of version, none appeared on behalf of Ops 1 and 2 and no statement of objections were filed. Hence both Ops placed ex-parte. Complainant gave his evidence by way of affidavit. Heard arguments of the learned counsel for complainant.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] As per the individual mediclaim policy, the complainant and his wife were covered under the policy and the sum assured was Rs.5.00 lakhs each. When the treatment was taken by the wife of the complainant, the policy was in force since 2005. The complainant was a customer of Op1 and every year he renewed the said policy. The document produced by the complainant clearly discloses that the wife of the complainant has taken the treatment for the replacement of the knee under the surgery. The claim was also made to the Ops for the reimbursement of the cost of the surgery and also post operative treatment cost incurred by the complainant. Even though the expenses were beyond the sum assured under the policy, the complainant restricted his claim to the sum assured under the policy for Rs.5.00 lakhs. The main contention of the OP for the repudiation of the claim was that the said ailment payable only after 4 continue renewal in the policy from the date of inception. The Ops have not referred any clauses of the terms and conditions of the policy in the said repudiation letter. When we peruse the terms and conditions produced by the complainant nowhere it is mentioned about the contention taken by the Ops for the repudiation of the claim. When there is no condition or clause in the agreement it is the bounden duty of the Ops to reimburse the amount spent by the complainant for the treatment of his wife who is also covered under the policy. Non-payment of the said amount definitely amounts to deficiency in service on the part of the Ops.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] These facts have not been specifically denied by the Ops. Even though the notices were served on them, they remained absent and failed to submit their statement of objection to rebut the evidence of the complainant. In the absence of specific denial by the Op, the evidence given by the complainant is unchallenged.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] In view of the discussions made above, we are of the opinion hat the complainant has proved the deficiency in service on the part of the Ops. Accordingly, we pass the following [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]O R D E R[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Complaint is allowed. Opposite parties 1 and 2 are jointly and severally liable.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Opposite parties 1 and 2 are directed to reimburse an amount of Rs.5.00 lakhs (Rupees Five Lakhs only) within six weeks from the date of this order with interest @ 8% p.a from the date of submission of claim form to the Opposite parties to till the date of realization including the costs of Rs.3,000/- (Rupees Three Thousand only).[/FONT]
  • adminadmin Administrator
    edited September 2009
    [FONT=&quot]Complainant:[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot]Smt. Rupa Patel[/FONT]
    [FONT=&quot] W/o Saten Patel[/FONT]
    [FONT=&quot] Aged about 69 years[/FONT]
    [FONT=&quot] Residing at N0.130[/FONT]
    [FONT=&quot] Railway Parallel Road[/FONT]
    [FONT=&quot] Kumara Park West[/FONT]
    [FONT=&quot] Bangalore- 560 020[/FONT]
    [FONT=&quot] [/FONT][FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]

    /vs/





    [FONT=&quot]Opposite Parties:[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1.[FONT=&quot] [/FONT][/FONT][FONT=&quot]The Divisional Manager[/FONT]
    [FONT=&quot]Oriental Insurance Company[/FONT]
    [FONT=&quot]Divisional Office[/FONT]
    [FONT=&quot]Gandhi Nagar[/FONT]
    [FONT=&quot]Bangalore- 560 009[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2.[FONT=&quot] [/FONT][/FONT][FONT=&quot]E-Meditech Solutions Limited[/FONT]
    [FONT=&quot]S-602, South Block[/FONT]
    [FONT=&quot]Manipal Centre[/FONT]
    [FONT=&quot]Dickenson Road[/FONT]
    [FONT=&quot]Off. M.G. Road[/FONT]
    [FONT=&quot]Bangalore - 560 042[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]3.[FONT=&quot] [/FONT][/FONT][FONT=&quot]M/s. Raksha TPA Pvt. Ltd.,[/FONT]
    [FONT=&quot]No.25, Ashirwad, 1st Floor[/FONT]
    [FONT=&quot]29th Main, 4th ‘B’ Cross[/FONT]
    [FONT=&quot]2nd Stage, BTM Layout[/FONT]
    [FONT=&quot]Bangalore- 560 076[/FONT]
    [FONT=&quot] [/FONT]
    O R D E R

    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]SRI. G. SIDDANAGOUD, PRESIDENT:[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the Opposite parties (Ops in short) for the payment of Rs.6,842/- with interest, costs and for such other reliefs.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] The brief facts of the case are that the complainant has taken a Health Insurance Policy bearing No.421200/48/2008/203 from the 1st Op through the Agency of the 2nd Op for herself and her husband and has paid a premium of Rs.29,180/- there under. The said policy is valid from 24/04/2007 to 23/04/2008 and covers domiciliary hospitalization upto a sum of Rs.45,000/- each. The 2nd Op has merged with the 3rd Op and has taken over the functions of the 2nd OP hence the 3rd Op is a necessary party to the proceedings.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] The complainant is a chronic lymphoid leukaemia patient. The complainant was admitted to the Christian Medical College, Vellore on the 11th and 12th of March 2007 for medical Investigation and in view of the procedure being important and urgent from the point of view of the procedure being important and urgent from the point of view of the complainant’s health, the complainant could not inform the same to the first OP at the time of admission to the Hospital. The complainant spent a sum of Rs.6,482/- towards medical expenses. On being discharged from the hospital, the complainant went to her native place to recuperate and on account of the same the complainant could not file the claim petition in time. The complainant on return to Bangalore from her native place, she has filed a claim petition for claiming the Hospital Bills on 11/07/2008 before 1st Op through the 2nd Op and the 2nd Op has returned the claim form with a letter on 2nd August 2008 stating that the claim submitted by the complainant is belated as the Claim Form should be submitted within 30 days and hence the payment cannot be settled.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] The complainant at the time of taking the insurance policy the insured was not informed of any such technically. The signature of the complainant was obtained on blank form and copies of the same were not given to the complainant at the time of taking the Insurance policy. The complainant got issued a legal notice to the Op on 24/09/2008 calling upon the OP to accept the Claim Form and settle the claim amount within 15 days form the date of receipt of the Legal Notice. The Ops have neither replied the legal notice nor have they come forward to settle the claim amount. Hence the complainant approached this forum. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Notices were sent o the Ops for their appearance and version. Notices were served on Ops 1 and 2 but they remained absent and no one represented them. The notice sent to Op3 under RPAD not returned including the acknowledgement inspite of completion of 60 days from the date of its dispatch. Even cover sent under RPAD is also not returned. It is a local address. Hence it is treated as served on Op3. But Op3 remained absent. No one represented. Hence Ops 1 to 3 placed ex-parte. Complainant gave her evidence by way of affidavit. Heard arguments of the counsel of complainant.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Complainant specifically on oath stated about the taking of treatment on 11th and 12th March 2007 at Vellore. The mediclaim policy taken by the complainant was in force from the said period. When the claim petition was filed before the Ops they repudiated the claim on the ground that the claim submitted by the complainant was very late and it is violation of the rules and hence they can not settle the payment. When we peruse the dates there is inordinate delay in submitting the form with documents. The explanation given by the complainant is that after her discharge, she went to her native place which is a remote village and returned to Bangalore only few days before submitting the claim form. After returning to Bangalore only she came to know the procedure and submitted the claim form. No doubt as per rules provided under the agreement within 36 days the claim should be made for reimbursement. The mediclaim policies are taken for the benefit of persons who are covered under the policy. Merely there is some delay in submitting claim, on the ground of the technicalities insured person should not be deprived of in getting the benefits under the policy. Therefore, the Ops should have considered the claim of the complainant after submitting the claim form. Non-payment of the said amount amounts to deficiency in service.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] These facts have not been specifically denied by the OPs. Even though the notices were served, it remained absent and failed to submit their statement of objection to rebut the evidence of the complainant. In the absence of specific denial by the Op, the evidence given by the complainant is unchallenged.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] In view of the discussions made above, we are of the opinion that the complainant has proved the deficiency in service on the part of the Ops. Accordingly, we pass the following order.[/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]O R D E R[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Complaint is allowed. Opposite parties 1 to 3 are jointly and severally liable.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Opposite parties 1 to 3 are directed to reimburse an amount of Rs.6,842/- (Rupees Six Thousand Eight Hundred Forty Two only) to the complainant within 60 days from the date of this order with interest @ 8% p.a from the date of submission of claim form to the Opposite parties to till the date of realization.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Opposite parties are further directed to pay an amount of Rs.2,000/- (Rupees Two Thousand only) to the complainant towards the costs of this litigation.[/FONT]
  • adminadmin Administrator
    edited September 2009
    A.PARVATHY,
    w/o. G.Arumugam,
    Proprietrix,
    Arumugam Timber Traders,
    No.60, Thiyagappa Chetty Street,
    Korukkupet,
    Chennai – 21 Complainant

    Versus

    1.The Branch Manager,
    Oriental Insurance Company Ltd,
    City Branch Office X,
    Appavu Towers,
    Ist Floor,
    New No.48 (Old No.69)
    West Mada Street,
    Rayapuram,
    Chennai – 600 013.

    2.The Divisional Manager,
    Oriental Insurance Company Ltd,
    Divisional Office, IV,
    Lucxan Manzil, III Floor,
    130, Angappan Naickan Street,
    Chennai – 600 001. Opposite Parties



    Date of complaint 11.04.2005

    M/S. C.H. Vinobhagandhi, &
    J. Sunder Counsels for the Complainant


    M.B. Gopalan, & M.Vijayaraghavan Counsels for the opposite
    Parties

    O R D E R


    THIRU.P. ROSIAH. PRESIDENT


    Complaint filed Under Section 12 of the Consumer Protection Act
    1. The case of the complainant is briefly as follows:

    The Complainant is running timber business in the name and style of Sri Arumugam Timber Traders, No.9 M.T.H Road ,Padi, Chennai. The complainant had availed a Fire Insurance Policy in the name of the Firm on 6.6.1999 from the Ist opposite party for the period from 6.6.1998 to 4.6.1999. The policy covers the risk of all kinds of timber to an extent of Rs.10,50,000/- and machinery of Rs. 50,000/- . On the early morning of 11.6.98, fire accident was occurred in the complainant’s business premises due to short circuit in electricity wire . At the time of occurrence the complainant had gone to Aruppukottai and she was informed about the accident by her relative. She came to Chennai on 15.6.1998 and found that the entire stock kept in the business premises to the value of Rs. 11 to 12 lakhs were destroyed. She gave a complaint to the Korattur police station and FIR was registered under accidental fire . The complainant has also intimated the matter to the Ist opposite party and submitted claim forms. The Opposite party appointed surveyors to assess the loss occurred in the fire accident. M/S anbalagan and associates who are the charted accountant conducted the survey and assessed the loss at Rs 602096/- on 21.1.2000. The opposite party by applying the policy conditions reduced their liability at loss Rs. 3,63,887/-. The complainant bankers also approached the opposite parties for settlement of the claim . The opposite parties appointed Maruthi services as fresh surveyor to assess the damages. Considering the report of the Maruthi services, the opposite parties repudiated the claim of the complainant without any justification . The opposite parties have committed deficiency in service and therefore the complainant filed this complaint for a claim of Rs. 7,17,806.35/- being the claim as per policy together with interest compensation of Rs.2,00,000/- for mental agony.
    2. The opposite parties filed version and contended inter alia that the surveyors submitted report dated 21.1.2000 assessing the loss at
    Rs. 3,63 887/-. On a scrutiny of the survey report the opposite parties found that there had been inordinate delay in submission of documents. Accordingly M/S Maruthi Associates was appointed as investigator who made detailed enquiry regarding fictitious purchase bills . The bills submitted by the complainant for Rs. 5,00,000/- from Gummidipundi, Madharpakkam, Tindivanam were found to be fictitious. The Opposite parties after considering the report of the surveyors, repudiated the claim as per the condition No 8 of the Fire Insurance Policy. Hence there is no deficiency in service on their part.
    3. Proof Affidavits have been filed by both the complainant and the opposite parties. Ex.A1 to A16 were marked on the side of the complainant. Ex. B1 to B32 were marked on the side of the opposite parties.
    4. The points that arise for considerations are:
    1. Whether there is any deficiency in service on the part of
    the opposite parties?
    2. To what relief the complainant is entitled to?
    5. Point No:1
    Admittedly, the complainant has taken Fire Insurance Policy with the Ist opposite party for her timber kept in her business premises. On 11.6.1998 fire accident was occurred in the complainant business premises due to short circuit in electricity wire and the stock which were kept in the business premises were destroyed. The claim was made to an extent of Rs. 11 to 12 lakhs with the opposite parties. The opposite parties appointed a surveyor M/S. Raghunathan Associates to assess the loss occurred and submitted the report assessing the loss at Rs. 3,63.878/- in the year 2000. In the report it was stated that the insured had not furnished the claim paper called for by them in time and also recommended to obtain the required claim document from the complainant and checked before settlement of the claim. Hence the opposite parties appointed Maruthi Services as investigator and they submitted investigation report Ex. B26. The report would show that insured submitted purchase bills after 1.4.1998, to substantiate the purchase bills to an extent of Rs. 4.76,967/- alleged to have been purchased from SKM timbers M.P Road. Elavur, Gummidipundi dated 20.4.1998, 10.6.1998, and the bills issued by the Gokul Timber and Plywoods Chennai rode Madharpakkam Gummidipoondi and Anitha Timber and Plywoods , Pondy Road, Villupuram were found to fictitious. There was no timber merchant in the place shown mentioned in the bills . Hence the investigators made a report that the insured had fabricated the purchase bills printing them and giving some numbers on it for nearly Rs. 5 ,00,000/- to substantiate the stock prior to the reported accidental fire. The opposite parties by letter dated 6.9.2001 (Ex.B27) informed the complainant that the claim was repudiated as per policy condition No.8 of the fire policy. on the ground that the complainant had produced fictitious document.
    6. The complainant would submit that Mr Ragunathan Associates submitted the report dated 21.4.2000 (Ex.B23) assessing the loss of Rs. 3,63,887/- and the opposite parties did not settled the amount. Per contra the opposite parties would submit that the report would state that the required documents have to be obtained from the insured and checked before settlement. Hence the opposite parties appointed another investigator M/s Maruthi services and that the investigator submitted reports ( Ex.B26) which would clearly show that the complainant have produced fictitious bills to claim policy amount from the opposite parties. The claim was repudiated on the ground of fraud and it is appropriate for a detailed a civil court to try the issue to arrive at just a decision whether the bills produced by the complainant are fictitious or not. If at all the complainant’s claim is considered it is only the civil court that has jurisdiction to entertain the claim and not by this forum.
    7. We carefully considered rival submission and perused the material on record. It is true that the complainant had availed fire policy with the opposite parties . It is also not in dispute that there was a fire accident in the premises of the complainant on 11.6.98. The dispute is with regard to genuineness of certain bills submitted by the complainant. The opposite parties would submit that the investigator appointed by the opposite parties by his report had stated that the (Ex.B26) complainant submitted fogus bills for a claim of nearly 5 lakhs. The investigator further stated in his report when he enquired about the bills produced by the complainant the bills are found to be fictitious. The opposite parties repudiated the claim on the ground if fraud as per the policy condition No. 8. On perusal of the record, we are of the considered view that this matter need elaborate examination of witnesses which can be done only by a Civil Court and not by the Consumer Forum which disposes case in a summary procedure. It is open to the complaint to approach a Civil Court for their claims. The period spent before this Forum for the case is excluded for the purpose of limitation. Hence we do not find any deficiency of service on the part of the opposite parties.
    8. Point No:2 In the result, the complaint is dismissed. The time spent by the complainant before this Forum is excluded for the purpose of limitation under section 14 of the Limitation Act as laid down by the Supreme Court of India in a decision reported in 1995 CTJ 289 (SC) 1995 SCC 593 in the case of Laxmi Engineering Works Versus PSG Industrial Institute, No costs.
  • adminadmin Administrator
    edited September 2009
    Consumer Case No.: 37 / 2007.
    Date of filing : 08.06.2007.
    Date of final order : 09.04.2009.
    PRESENT
    A) Sri Saurish Chakraborty President.

    B) Smt.Swapna Kar Member.

    C) Sri Swaraj Kumar Biswas Member.

    Bimal Dutta,
    Bidhannagar, Raiganj, Uttar Dinajpur. Complainant.

    versus

    1. The Branch Manager,
    Oriental Insurance Company Limited,
    Raiganj Branch, Uttar Dinajpur.

    2. Heritage Health Services Private Limited,
    Represented by the Manager (Operation),
    Nicco House, 5th Floor,
    2, Hare Street, Kolkata – 700 001. Opposite Parties.
    Judgment
    Date: 09.04.2009.

    This case arises out of a petition of complainant filed Under Section 12 of the Consumer Protection Act, 1986 by the petitioner Bimal Dutta on 08.06.2007 against the opposite party The Branch Manager, The Oriental Insurance Company Limited, Raiganj Branch, Uttar Dinajpur and one other for an order to pay the medical expenses of rupees 15,438.00 by the opposite party along with interest at the rate of 9 percent per annum and an award of rupees 5,000.00 as compensation and as litigation cost of rupees 2,000.00 and any other relief or relieves as the Hon’ble Forum deems fit and proper.


    The complaint story in brief is that the complainant obtained a Group Medical Insurance Policy, No. 313206/05/931 covering the period form 01.02.2005 to 31.01.2006 under M/s heritage Health Private Limited through the Oriental Insurance Company Limited, Raiganj Branch Office.

    Petitioner’s wife insured No. 2, Saraswati Dutta has an attack of serious abdomen pain in the month of July, 2005, started treatment initially on 19.07.2005 at Jiban Rekha Nursing Home. Thereafter, she admitted in Upasana Nursing Home on 21.07.2005 and after her operation she discharge from there on 25.07.2005.After released, petitioner informed to the opposite parties and submitted his claim along with all necessary documents and vouchers. But, after that, the petitioner came to know from a letter issued by opposite party number 2 that his claim has rejected on the ground that “pre-existing diseases not covered in the policy”.

    Complainant mentioned in his petition that although, Medical Certificate issued on 21.07.2005 by the concerned Doctor shown that the disease / pain was six months back but after that said doctor rectified his defects and mentioning “She had the pain for many months”. As such the petitioner prays that prescription of the concerned Doctor issued on 21.07.2005 would be consider in the matter of settlement of claim but opposite party number 2 is not considered at all. For that reason, not getting any claim amount from the opposite parties, petitioner has prayed before this Forum to get relief or relieves.

    Opposite party numbers 1 and 2 by filing a Written Version on 17.11.2008 has contested this case, denying inter alia, all the material allegations against them; contending therein that the case is not maintainable in its present form and law and as per their provisions of terms and conditions of policy and also on the ground of non-joinder of necessary party and for limitation.

    Opposite parties have admitted that the petitioner purchased a individual Mediclaim being No. 313206/2005/931 valid from 01.02.2005 to 31.01.2006 from M/s Heritage Health Private Limited through the opposite party number 1 and concerned with the Family members for total sum Assured of rupees 90,000.00. But they have not considered and not to realize the petitioner’s claim due to the fallowing reasons: -

    As per policy condition clause: 4.1 pre-existing diseases not covered in the policy.


    Secondly, as per Dr. Somnath Chatterjee’s prescription, dated 21.07.2005: “pain in abdomen – 6 months” i.e. Since Jan – 2005, whereas the policy was taken from 01.02.2005 only, Hence treating the disease suffered as pre-existing the claim stands repudiated.

    Thirdly, the complainant suppressed the materials fact at the time of inception of the policy.

    In the above circumstances opposite parties prays before this Forum to dismiss the case with cost and special cost may be awarded as per C. P. Code.

    To prove the complaint case complainant filed nine numbers of documents only.
    Decisions with reasons:

    We have carefully gone through the petition of complaint, W.V. and documents filed by the petitioner in this case and arguments advanced by the Ld. Lawyers for both the parties. We have come to the fallowing findings.

    It is not disputed the complainant purchased one Mediclaim policy for self and his family members from the opposite parties as per the case of the complainant the Mediclaim was purchased covering the period from 01.02.2005 to 31.01.2006 (Midnight). So, the policy is for a period of one year. The complainant here claimed

    Reimbursement of the medical treatment expenditure of his wife, who is also under the perview of the policy and after an operation, was done on her body for the disease called cholegstitis (Acute), the claim was forwarded. There also no disputes as to the fact of treatment of the complainant’s wife for the disease mentioned above. Complainant has filed certain Xerox copies of medical treatment papers of his wife. Now, the disputed point in this case is that the refusal of the opposite party / insurer to reimburse the claim. It is already on record that the complainant has forwarded a claim to the opposite party / insurer for reimbursement of the cost of medical treatment of his wife. There is a paper (Xerox copy) addressed to the petitioner by the opposite party / insurer stating therein that they are unable to admit the claim as the disease for which the complainant’s wife had under gone to an operation is a pre-existing one. This letter dated 26.10.2005 of the opposite party / insurer shows that an option was offered to him to file an appeal against the rejection of his claim to the Insurance Company, whose decision in this regard will be final and binding. So, the question to be decided thereafter whether, the disease as alleged was a pre-existing one. While rejecting the claim of the complainant, the opposite party / insurer quoted that as Dr. Somnath Chatterjee’s prescription dated 21.07.2005 of the wife of the complainant mentioned the words ‘pain in abdomen – 6 months’, so the disease was pre-existing. Now let us see the prescription dated 21.07.2005 of the wife of the complainant, we find an entry like ‘pain in abdomen from 6 months noted by the Doctor’.

    So, it appears that on entering into a Mediclaim policy on 01.02.2005 the petitioner’s wife went to Doctor on 21.07.2005 when her pain in abdomen which was 6 months old. If we trace upon the policy in question, we get that the petitioner’s wife developed the disease prior to the date of complainant’s entering into the Mediclaim policy for her and other family members.

    There was an attempt on the part of the complainant to plug the hole already created by the prescription dated 21.07.2005. In order to control the damage occurred in the matters already stated above; the complainant has obtained a certificate from the same Doctor to establish that in the prescription dated 21.07.2005 the words pain in abdomen from 6 months’ was mentioned by mistake. The certificate though bears no date of issue but complainant relies on it in support of his case. So, there is a glaring disparity in the case of the complainant. By his own contention it has been establish that the disease of his wife was a pre-existing that is to say prior to his enter into the Mediclaim policy for himself and his wife. So, in our view the case of the complainant gets hit by the clause where it is stated that the policy will not cover the pre-existing disease.

    Therefore, the opposite party / insurer is right to reject the claim of the complainant. The complainant fails to establish his case as such he is not entitled to get any relief from this Forum.

    Fees paid are correct.

    Hence, it is ordered

    That the case is dismissed on contest. No order is passed as to cost.
  • adminadmin Administrator
    edited September 2009
    Consumer Complaint No. 8/2007
    Date of presentation: 10.1.2007
    Date of decision: 10.4. 2009

    Yash Pal Kapoor son of Sh. Hari Singh resident of Near Neugal Caf? Bundla, Palampur, District Kangra (HP)
    Complainant
    Versus

    The Oriental Insurance Company ltd. Subhash Chowk Palampur, District Kangra (HP) through its Branch Manager

    Opposite party

    Complaint under section 12 of the Consumer Protection Act, 1986

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

    For the complainant: Sh. Mansih Katoch, Advocate
    For the O.P Sh. Neeraj Bhatnagar, Advocate

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

    In nut-shell, the case of the complainant is that he is owner of a scooter and that the same was insured with the opposite party. It is asserted that during the subsistence of the insurance Policy, on dated 26.8.06, due to heavy rain and natural calamity, a popular tree fell on his scooter near, LIC office, which had been damaged in the said incident. After due intimation to the opposite party, the scoter was repaired at M/S Kamal Auto Service Station, Maranda. After completing necessary formalities, he had submitted his claim before the opposite party, but it repudiated the same in illegal manner and thus committed deficiency in service.


    2. The claim of the complainant has been resisted and contested by the opposite party by raising various preliminary objections including that the complainant has not come to this Forum with clean hands. On merits, it is asserted that after the receipt of intimation regarding the accident, the opposite party had immediately hired the services of an Independent Surveyor, who vide his detailed report assessed the loss to the scooter at Rs.6683/- subject to the terms and conditions of the Insurance Policy. It is asserted that since the complainant was not having a genuine and effective driving licence at the time of accident, he cannot be indemnified by the answering opposite party. So far as driving licence No.13584 dated 18.8.2004 is concerned, the same has not been submitted by the complainant alongwith the claim form. Other allegations were denied.


    3. Both the parties adduced evidence by way affidavits and annexures in support of their contention. The following points arise for determination:-
    1. Whether O.Ps committed deficiency in service, as alleged? OPC
    2. Whether the complaint is not maintainable, as alleged? OPOP


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

    REASONS FOR FINDINGS
    POINTS NO.1 AND 2


    5. Both these points are inter connected and interlinked, hence are taken up together for determination, in order to avoid repetition in discussion. Learned counsel for the complainant has argued that the opposite party, without application of mind, has repudiated the genuine claim of the complainant and thereby committed deficiency in service.


    6. On the other hand, learned counsel for the opposite party has argued that the complainant was not having a genuine and effective driving licence at the time of accident and that the opposite party has rightly repudiated the claim of the complainant in legal manner.


    7. To appreciate the arguments of the learned counsel for the complainant, the entire record available on the file was gone into in detail.


    8. From the record, it stands proved that the scooter of the complainant had suffered damage during the subsistence of the Insurance Policy, when, due to natural calamity; a popular tree fell on the same. It also stands proved that after receipt of intimation regarding the accident, the opposite party had appointed its independent Surveyor, who vide his detailed report, Annexure OP-1 had assessed the loss to the tune of Rs.6683/-. We are of the view that the opposite party was under legal obligation to pay the genuine claim of the complainant, when the scooter of the complainant had suffered damage due to natural calamity. The action of the opposite party in not paying the assessed amount to the complainant is nothing but great deficiency in service.


    9. So far as the defence of the opposite party, that the complainant was not having a genuine and effective driving licence, at the time of accident, is concerned, the same is rejected being devoid of any force in view of the fact that his scooter had suffered damage due to natural calamity. However, the complainant has placed on record, photo copy of his driving licence Annexure C-7. Its perusal goes to show that he was having learners licence to drive motor cycle with gear/Scooter.


    10 In view of the discussion made hereinabove, we hold that the complainant has been able to prove deficiency in service on the part of opposite party.
    9. Now, how this deficiency can be cured? We are of the view that the ends of justice will be met in case, the opposite party is directed to pay the assessed amount i.e. Rs.6683/- to the complainant. Due to deficiency in service, the complainant has suffered mental pain, agony and inconvenience and the ends of justice will be met in case the opposite party is directed to pay compensation, which is quantified at Rs.3000/- Hence, point No.1 is answered partly in affirmative and point No.2 in negative.


    10. No other point argued or urged before us.
    Relief


    11. In view of our findings on points No.1 and 2 above, the complaint is partly allowed and we order the opposite party to pay Rs.6683/- to the complainant within 30 days after the receipt of copy of this order, failing which it will carry interest @ 9% per annum from the date of complaint, till its realization. The opposite party is also directed to pay compensation to the tune of Rs.3000/-.The complaint is allowed alongwith litigation costs of Rs.2000/-.
  • adminadmin Administrator
    edited September 2009
    Shri Varinder Kumar son of Shri Mela Ram, R/O Village Bhangari, P.O. Chowkar, Sub Tehsil Nohradhar, District Sirmour, H.P.

    … Complainant
    Versus


    The Oriental Insurance Company Limited
    Through its Branch Manager
    The Mall Solan, Tehsil and District Solan, H.P.

    …Opposite Party

    Coram

    Shri Pritam Singh (District Judge) President.
    Mr. Varinder Thakur, Member (Male)
    Ms. Arun Bala Sharma, Member (Female)
    ………………………………………………………………………
    For the complainant: Mr. Gagan Chauhan, Advocate.
    For the Opposite Party: Mr. B.R. Sharma, Advocate.


    O R D E R:
    Pritam Singh (District Judge) President:-
    1. This order shall dispose of the complaint under section 12 of the Consumer Protection Act, 1986. It is the case of the complainant that he is owner of Mahindra Pick-up bearing registration No.HP-16-1403 which was duly insured with the OP-Company vide insurance policy bearing No.434653 for a sum of Rs.3,50,000/- effective from 30.08.2004 to 29.08.2005. That on 05.05.2005 the vehicle in question while coming from Haripur Dhar to Nohra met with fatal accident at Tersu Nala near Village Chunvi resulting in its extensive damages and one of occupants of vehicle also expired in this accident. That the occupants of vehicle had hired it for carrying their goods-animal to be sold in fair of Haripur Dhar against payment of freight charges to driver of vehicle. The factum of accident was reported to the police and intimation in this behalf was also sent to the OP-Company. Thereafter, the complainant lodged insurance claim with the OP-Company. But, the OP-Company instead of settling his insurance claim repudiated the same and conveyed him vide communication dated 24.05.2005 on the ground that unauthorized passengers were traveling in the vehicle at the time of the accident. Hence feeling dissatisfied and aggrieved, by the act of the OP-Company, the complainant perforce preferred this complaint against the OP-Company.


    2. The OP-Company by filing reply of the complaint resisted it and raised some preliminary objections regarding maintainability of the complaint, cause of action alleging that there is no deficiency in service. On merits, they alleged that on receipt of the intimation about accident, surveyor was appointed to conduct survey and assess the loss caused to vehicle who assessed net loss of Rs.1,13,815/-. It is further alleged that at the time of the accident the vehicle was being used in violation of the insurance policy as some un-authorized gratuitous passengers were sitting in the vehicle at the time of the accident. Hence, the OP-Company was well within its right to repudiate the insurance claim and there being no deficiency in service, the complaint is sought to be dismissed. Thereafter the parties led oral and documentary evidence in support of their claim/counter claim.


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


    4. It may be stated that undisputedly the vehicle in question, i.e. Mahindra Pick-up bearing registration No.HP-16-1403 was duly insured with the OP-Company for a sum of Rs.3,50,000/- w.e.f. 30.08.2004 to 29.08.2005 as is evident from the copy of insurance policy Annexure C-2 placed on record by the complainant. It is also undisputed fact that on 05.05.2005 the aforesaid vehicle met with accident and sustained extensive loss. The FIR to this effect was lodged at Police Station Renuka Ji and intimation in this regard was also sent to the OP-Company. The OP-Company, admittedly appointed surveyor and loss assessor to assess the loss caused to the vehicle in question in accident who assessed net loss at Rs.1,13,815/-.


    5. The sole ground taken by OP-Company for repudiating the insurance claim of the complainant is that some unauthorized gratuitous passengers were traveling in the vehicle in question at the time when it met with accident and it was breach of terms of insurance policy. But, the OP-Company did not lead any evidence in support of this plea. No report of investigator is placed on record by OP-Company. The OP-Company also did not file affidavit of investigator Mr. P.P. Bakshi. Whereas the complainant has filed affidavits of persons S’Shri Gian Chand Suresh Kumar and Shri Gajinder Singh who unequivocally deposed through their affidavits that they were traveling in the aforesaid vehicle as the owners of goods and not as gratuitous passengers against payment of freight charges made to driver for goods being carried by them. Thus, it stands established on record by complainant from their evidence that the persons who were traveling in vehicle in question were in fact owners of goods who were carrying goods against payment of freight charges. The repudiation of the claim of the complainant on this frivolous ground is illegal and this act of OP-Company would certainly amount to deficiency in service.


    6. The complainant has claimed sum of Rs.1,83,581/- but no affidavit of the repairer who carried out repairs and charged this sum has been filed by complainant. The OP-Company in para No.4 of the reply has alleged that the surveyor after site inspection assessed the net loss at Rs.1,13,815/-. The surveyor being independent person his report cannot be discarded.


    7. For the foregoing reasons, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs. 1,13,815/- along with interest at the rate of 9% per annum with effect from the date of filing of complaint, i.e. 14.07.2006, till making full payment of the aforesaid amount. The OP-Company is also burdened with litigation costs of Rs.1500/- payable to the complainant. This order shall be complied with by the OP-Insurance Company within a period of forty five days after the date of receipt of copy of this order. The learned counsel for the parties have undertaken 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.
    Announced on this the 30th day of April, 2009.
    (Pritam Singh)
    President.
  • adminadmin Administrator
    edited September 2009
    Smt. Kamla Bhotka W/O Shri Devi Singh Bhotka R/O Village Batiana, P.O. Dhamandri, Tehsil Theog, District Shimla, H.P. through her General Power of Attorney and husband Shri Devi Singh Bhotka.

    … Complainant.
    Versus


    The Oriental Insurance Company, Opposite Anup Service Station, Circular Road, Kaithu, Shimla-171003 through its Manager.

    …Opposite Party

    Coram
    Shri Pritam Singh (District Judge) President.
    Ms. Karuna Machhan, Member (Female)
    Mr. Charanjit Singh, Member (Male)
    ………………………………………………………………………..
    For the complainant: Mr. Raman Jamalta Advocate vice
    Mr. Ranvir Chauhan, Advocate.

    For the Opposite Party: Mr. Sanjay Karol, Advocate

    O R D E R:
    Pritam Singh (District Judge) President:-This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The brief facts as set in the complaint are that the complainant is registered owner of vehicle bearing registration No.HR-58A-2270, which was duly insured with the OP-Company vide policy No. 31/2003/916 effective from 19.08.2002 to 18.08.2003. It is alleged that the aforesaid vehicle met with an accident on 09.06.2003 and sustained extensive damage. That the factum of the accident was reported to the police at Police Station Theog and intimation in this behalf was also sent to the OP-Company. Thereafter, the complainant lodged insurance claim with the OP-Company. But, the OP-Company instead of settling her insurance claim, repudiated the same on the ground that she did not submit the required documents to them for settling the insurance claim. Hence, feeling dissatisfied and aggrieved by the act of the OP-Company, she perforce filed this complaint against OP-Company.


    2. The OP-Company while filing reply of complaint took some preliminary objections regarding maintainability of complaint, violation of the terms and conditions of the insurance policy etc. On merits, they alleged that the complainant did not submit the original driving licence of the driver, R.C., route permit and fitness certificate of the vehicle in question for verification. However, on receiving the intimation regarding accident, the surveyor was appointed by them to assess the loss, who after visiting the site conducted survey and assessed the loss to the tune of Rs.53,915/-. But, the complainant did not submit the required documents, to them despite repeated asking for settlement of the insurance claim, therefore the OP-Company was well within its right to repudiate the claim and there being no deficiency in service on their part, the complaint is sought to be dismissed. Thereafter, the parties led oral and documentary evidence in support of their claim/counter claim.


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


    4. It may be stated that admittedly, the complainant being registered owner of the vehicle baring registration No.HR-58A-2270 had got it insured with the OP-Company for sum of Rs.6,33,000/- vide policy No.31/2003/916 effective from 19.08.2002 to 18.08.2003. It is case of the complainant that she had engaged one Shri Rakesh Kumar as driver for driving the said vehicle who was having valid and effective driving licence to drive the same. Undisputedly, the vehicle in question met with an accident on 09.06.2003 when it was going to Mohri for loading the vegetable and it sustained extensive losses. The FIR regarding this accident was lodged at Police Station Theog on 09.06.2003 and the intimation regarding this accident was also sent to the OP-Company. Admittedly, the OP-Company deputed surveyor and loss assessor to conduct survey and assess the loss caused in accident to the vehicle in question who after conducting the survey submitted the report and assessed the net loss to the tune of Rs.53,915/- to be paid to the complainant.


    5. The sole ground for repudiating the insurance claim of the complainant is that the she failed to send the original driving licence of the driver, log book, cash memo of repairs, R.C. to them for verification despite their repeated asking. However, the complainant specifically alleged in para No.6 of complaint that when she received the letter from the OP-Company on 19.11.2003 calling upon her to submit the original driving licence, R.C. log book etc., she submitted the same to the OP-Company. But, the OP-Company instead of settling her insurance claim repudiated the same and intimation to this effect was also sent to her vide letter dated 28.11.2003. The complainant also placed on record the repudiation letter Annexure C-5 in this behalf, alongwith letter Annexure C-4 vide which she was called upon by the OP-Company to submit the original documents aforesaid. The complainant has also placed on record & relied upon the photo copy of the R.C. Annexure C-1 along with photo copy of the driving licence of driver Rakesh Kumar Annexure C-3. As per the contents of the driving licence Annexure C-3, it was earlier issued for LMV but subsequently it was endorsed for heavy goods vehicle by R.L.A. Theog on 20.04.2002 and renewed up to 21.06.2003. Therefore, the driver Rakesh Kumar was having valid and effective driving licence endorsed for heavy goods vehicle at the time when the vehicle met with an accident on 09.06.2003. Thus, when the complainant has filed the copies of the R.C. and driving licence with this complaint, it cannot be said by any stretch of imagination that she failed to supply the aforesaid original documents to the OP-Company when she was called upon to do so. As such, this sole ground taken by the OP-Company for repudiating the insurance claim of the complainant does not appear justified and legally sustainable.


    6. The complainant alleged that she got the repair estimates prepared to the tune of Rs.1,42,250/- for getting the vehicle repaired but she did not place on record the original repair estimates bills or copy thereof in support thereof. No affidavit of the person from whom she got the repair estimate of the vehicle prepared is also filed by her.


    7. As stated above, the OP-Company had deputed surveyor & loss assessor to conduct survey and assess the loss caused to this vehicle in this accident who after conducting survey prepared the report Annexure R-1 and submitted the same to the OP-Company. As per this report, the surveyor had assessed the net loss to the tune of Rs.53,915/- and recommended this amount to be paid by the OP-Company to the complainant. It has also been alleged by the OP-Company in the reply that the surveyor had assessed the net loss of Rs.53,915/- qua loss sustained to the vehicle in question in this accident. Therefore, this report of the independent surveyor which remained unrebutted can be safely acted upon to determine the insurance claim of the complainant. As such, we hold that the complainant is entitled to be indemnified by the OP-Company to the extent this net loss of Rs.53,915/-.


    8. For the foregoing reasons and discussion, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of a sum of Rs.53,915/- alongwith interest at the rate of 9% per annum from the date of filing of the complaint, i.e. 20.10.2005 till making full payment of the aforesaid amount. The litigation cost is quantified at Rs.1500/- payable by the OP-Company to the complainant. This order shall be complied with by the OP-Company within a period of forty five days after the date of receipt of copy of this order.
  • adminadmin Administrator
    edited September 2009
    Harvinderjit Kaur aged about 46 years wd/o Sh Jaspal Singh s/o Udham Singh r/o village Dalewal Tehsil and District Hoshiarpur.


    Complainant


    vs.


    The Oriental Insurance Company Limited, Divisional Office, SCO 18-19, Chandigarh Road, near Mini Secretariat Hoshiarpur through its Divisional Manager.


    Opposite party

    Complaint u/s 12 of the Consumer Protection Act, 1986.


    Quorum: Sh.P.D.Goel,President,
    Sh.A.S.Jauhar,Member.
    Mrs.Vandna Choudhary, Member.


    Present; Sh D.S.Seehra, counsel for the complainant.
    Sh V.K.Prasher, counsel for the OP.

    PER P.D.GOEL,PRESIDENT
    1. The complainant namely Harvinderjit Kaur 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 husband of the complainant namely Jaspal Singh got himself insured for Rs.one lac under Janta Personal Accident Insurance Scheme on 27.4.2008 for one year i.e. upto 26.4.2009 on payment of premium amount of Rs. 60/- to the OP. . The OP undertook to pay a sum of Rs. One lac in case of accidental death of said Jaspal Singh. Sh Jaspal Singh nominated his wife -complainant to receive the amount of Rs. One lac in case of accidental death.
    2. It is the case of the complainant that her husband-Jaspal Singh was the driver of truck tanker no. HR63-5545. That on 25.7.2008, said Jaspal Singh was going from Jalandhar to Loni(U.P). When the said tanker reached near Sukhdev Dhaba in the area of Police Station, Murthal, a stray cattle suddenly came on the road . Sh Jaspal Singh tried to escape the stray cattle and turned the truck towards his right side, consequently, the truck struck against a stationed truck from its backside , thus, the front portion of the truck got pressed and Jaspal Singh got serious injuries. . Thereafter, he was taken to Civil Hospital, Sonepat , where he was given first aid . The condition of Jaspal Singh was serious , therefore, he was referred to PGI, Rohtak, where he was kept in emergency ward.
    3. It is further the case of the complainant that while coming back from Rohtak to Hoshiarpur, said Jaspal Singh died due to injuries on the way on 25.7.2008. The post mortem on the body of Jaspal Singh was not got conducted due to ignorance. The DDR no. 31/08 was got recorded at P.S.Murthal on the statement of one Jaswinder Singh.
    4. It is further the case of the complainant that she being nominee of deceased Jaspal Singh lodged claim and completed all the formalities. It is the allegation of the complainant that OP instead of paying Rs.one lac to her, repudiated the claim vide letter dated 23.12.2008 on the ground that post mortem examination was not conducted on the body of deceased Jaspal Singh. The repudiation of claim by the OP is illegal as the complainant and her relatives were ignorant with regard to the formalities of post mortem examination , hence this complaint.
    5. OP filed the reply. Preliminary objections vis a vis maintainability and the complainant is not the consumer were raised. On merits, the claim put forth by the complainant has been denied. It is replied that there is no document to link the death of Jaspal Singh on account of alleged injuries. The complainant has failed to produce post mortem report of deceased Jaspal Singh, which is a vital document to know the cause of death. It is further replied that the claim is not payable due to non submission of post mortem report of deceased. It is denied that Jaspal Singh was admitted in PGI, Rohtak, rather, he was shifted from Rohtak against doctor's advice . The recording of DDR after 13 days is an act of manipulation and after thought . The claim was rightly repudiated vide letter dated 23.12.2008.
    6. In order to prove the case, the complainant tendered in evidence affidavit Ex.C-1, insurance cover note Mark C-2, DDR dated 7.8.2008 Mark C-3, copy of MLR Mark C-4, intimation dated 25.7.2008 Mark C-5, application dated 25.7.2008 Mark C-6, application bearing endorsement dated 2.8.2008 Mark C-7, photographs Mark C-8 to C-10, death certificate of Jaspal Singh Mark C-11, certificate by Lambardar Mark C-12, DL of Jaspal Singh Mark C-13, letter dated 23.12.2008 Mark C-14 and affidavit of Shingara Singh Ex. C-15 and closed the evidence.
    7. In rebuttal, the opposite party tendered in evidence affidavit of Ajay Garg Ex.OP-1 and policy Ex. OP-2 and closed the evidence.
    8. The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
    9. The OPs have repudiated the claim qua Mark C-14. It has been stated that there is no document which can link the injuries suffered by Jaspal Singh with accident. Secondly, that this being case of accident, the post mortem of the deceased was necessary to know the exact cause of death.
    10. Admittedly, the present complaint has been filed by the widow of the deceased -Jaspal Singh alleging therein that her husband was insured for a sum of Rs. One lac under “Janta Personal Accident Insurance Scheme” from 27.4.2008 to 26.4.2009. It is the case of the complainant that on 25.7.2008, said Jaspal Singh, while driving the tanker met with an accident near Sukhdev Dhaba in the area of Police Station, Murthal, Said Jaspal Singh died due to injuries on the way from Rohtak to Hoshiarpur. That the dead body of the deceased was not subjected to post mortem examination, however, DDR no. 31/7.8.08 Mark C-3 regarding said accident was got recorded at P.S.Murthal . The body of deceased Jaspal Singh was cremated at his native village on 26.7.2008.
    11. Admittedly, the OP-The Oriental Insurance Company Limited was under legal obligation to pay a sum of Rs.one lac , in case said Jaspal Singh dies an accidental death. The complainant has raised the plea that she and her relatives were ignorant of the formalities to be completed for lodging the claim, as such, post mortem examination of deceased Jaspal Singh was not conducted. Mark C-4 is the copy of MLR . Mark C-11 is the death certificate of Jaspal Singh. The complainant has also placed on record the certificate of the Sarpanch Mark C-12 qua which he has certified that Jaspal Singh son of Udham Singh resident of village Dalewal Tehsil and District Hoshiarpur had died due to the accidental injuries on 25.7.2008. The dead body of Jaspal Singh was cremated in the village on 26.7.2008 in his presence. Ex.C-15 is an affidavit of Shingara Singh, Lambardar and Sarpanch, wherein he has stated that deceased Jaspal Singh belongs to his village , who met with an accident on 25.7.2008 near Sonipat and received serious injuries on his person and died on the same day, when was being brought to Hoshiarpur. That the dead body of Jaspal Singh was cremated on 26.7.2008 in his presence.
    12. Now, it is established on record that DDR with regard to accident of Jaspal Singh was recorded at Murthal qua Mark C-3 and copy of MLR is Mark C-4. The death certificate is Mark C-11. The Lambardar and Sarpanch of the village qua Mark C-12 and Ex.C-15 have categorically stated that Jaspal Singh died due to injuries sustained in the accident and his body was cremated in the village in their presence. The OP has not produce any evidence to rebut the evidence produced by the complainant that Jaspal Singh had died due to the accidental injuries suffered in the accident. It has been held by the Hon'ble Uttaranchal State Consumer Disputes Redressal Commission, Dehradun in recase Narendra Singh Bhasin vs National Insurance Co. Ltd. ,2005(1) JRC, 391, that it is not mandatory that there should be necessarily FIR or post mortem, if accidental death is proved otherwise,then in the absence of FIR or otherwise , the claim should not be rejected as the death of the insured was only due to accident and his case was fully covered under the policy.
    13. Now it is established that the Lambardar and Sarpanch of the village have stated that Jaspal Singh died due to injuries sustained in the accident, and thereafter, his dead body was cremated in the village , consequently, it is held that Jaspal Singh died due to accidental death.
    14. The matter does not rest here. It is also clear that after the accident, said Jaspal Singh was admitted in Civil Hospital, Sonepat and the doctor attending upon the patient referred him to PGI, Rohtak, as his condition was serious. The close scrutiny of the MLR, Mark C-4 also makes it clear that Jaspal Singh received injuries in the road side accident. The law laid down by the Hon'ble Uttaranchal State Consumer Disputes Redressal Commission, Dehradun is fully attracted to the facts and circumstances of the present case..
    15. As a result of the above discussion, it is held that the OP was not justified in repudiating the claim, which amounts to deficiency in service, with the result , the complaint is accepted and the OP is directed to pay a sum of Rs. one lac to the complainant with interest @ 9% per annum from the date of complaint i.e. 30.1.2009 till realization alongwith litigation expenses of Rs.1000/- within one month from the receipt of copy of the order.
  • adminadmin Administrator
    edited September 2009
    [FONT=&quot]CONSUMER complaint NO. 80[/FONT][FONT=&quot] OF 2008[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Between:[/FONT]
    [FONT=&quot]Kakkera Satyanarayana, S/o. Prakash Rao, age 37 years, Occ: Business, R/o. H. No.2-9-51, Mukarampura, Karimnagar. [/FONT]
    [FONT=&quot] …Complainant[/FONT]
    [FONT=&quot]AND[/FONT]
    [FONT=&quot] Oriental Insurance Company Limited, R/by Branch Manager, P.O. Box. No. 5, Opposite Collector Office, Karimnagar.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] …Opposite Party[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] This complaint is coming up before us for final hearing on 8-4-2009, in the presence of Sri T. Srinivas Reddy and D.Nagaraju, and P. Raja Gopal, Advocates for complainant and Sri Ch. Venkateshwar Rao, Advocate for opposite party, and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following:[/FONT]
    [FONT=&quot]::ORDER::[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1. The averments is brief of the complaint are that he purchased a Motor Cycle Hero Honda Passion bearing no. A.P. 15-AA-1971 and obtained insurance policy for the said vehicle from opposite party by vide policy no.431402/2007/1743 Dt: 31.7.2006 covering risk of damage in accident and also covered theft showing the value of the vehicle is Rs.36,000/-. On 28.8.2006 he kept his vehicle in front of his house and after having break-fast at 8.00 AM when he came from the house he noticed the vehicle was missing. He searched for the vehicle and lodged a complaint on 24.11.2006 with CCS Karimnagar who registered a case in Crime NO.207/2006 from the offence under section 39 IPC and the said case under registration. He submitted a representation along with all relevant documents on 30.3.2007 informing about the acts but they did not consider their claim, hence the complaint.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2. Opposite party filed counter that the complaint is not maintainable as per Consumer Protection Act and there is no deficiency of service on their part. It is also denied the vehicle was misplaced on 28.8.2006 when it was parked in front of the house of complainant. In case of that or other criminal act which may be the subject to claim under the policy the insured shall give immediate notice to the Police and cooperate with the company in receiving the conviction of the offender. In this case theft was committed on 28.8.2006 and the complaint is lodged before the Police on 24.11.2006 and information to the company is given on 13.3.2007. More than 6 months of alleged theft. Thus the complainant violated the conditions and prayed to dismiss the complaint.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]3. Both parties have filed their Proof Affidavits reiterating the contents of the complaint and counter. The documents filed by the complainant are marked as Ex.A1 to A8 and the documents filed by the opposite party are marked as Ex.B1 to B4.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]4. Ex.A1 is the original registration certificate for Motor Cycle issued by R.T.A., Karimnagar Dt: 10.5.2005. Ex.A2 is the original policy certificate issued by opposite party Dt: 31.7.2006. Ex.A3 is the copy of F.I.R. issued by CCS Police, Karimnagar Dt: 24.11.2006. Ex.A4 is the office copy Claim Form submitted by the complainant Dt: 13.3.2007. Ex.A5 is the office copy of Legal Notice Dt: 7.12.2007. Ex.A6 is the original postal receipt Dt: 17.1.2008. Ex.A7 is the letter from complainant addressed to R.T.A., Karimnagar Dt: 13.3.2007. Ex.A8 is the Notice Form No.96 issued by Police Station, CCS Karimnagar Dt: 25.5.2007.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]5. Ex.B1 is the copy of Policy along with enclosures. Ex.B2 is the letter of the complainant addressed to opposite party Dt: 13.3.2007. Ex.B3 is the letter from opposite party addressed to complainant Dt: 15.3.2007. Ex.B4 is the reply notice from opposite party addressed to counsel for complainant Dt: 4.2.2008. Ex.B5 is the postal acknowledgement card addressed to counsel for complainant. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]6. As seen from the above referred facts there is no dispute that the Motor Cycle Hero Honda Passion bearing no. AP 15-AA-1971 belongs to complainant was insured with opposite party by vide policy no.431402/07/1743 Dt: 31.7.2006 covering the risk of damage in accident and also covered theft showing the value of the vehicle is Rs.32,000/-. Ex.B1 is the policy, it is a specific case of complainant on 28.8.2006, at 8.00 AM his vehicle was found missing in front of his house and after searching for the same he lodged complaint with Police Station, Karimnagar on 24.11.2006 and the said Police Station after thorough efforts submitted a report to concerned Magistrate that the crime is undetectable. Inspite of submitting the claim by the complainant to the opposite party on 13.11.2007 they are not considering his claim. Interalia the learned counsel for the opposite party contended the claim of complainant is not genuine and if really his vehicle was missing on 28.8.2006 he would have given the complaint immediately or within the reasonable time. In this case he has given the complaint more than 2 months after incident. As per the terms of the policy Ex.B1 the complainant has to intimate about the theft to the company immediately. But he has not informed to the opposite party for more than 6 months. Therefore, he is not entitled for the claim. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]7. In view of the contentions it is to be seen whether the complainant is entitled for the claim as prayed for?[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]8. Ex.A3 is F.I.R. in Crime No.207/2006 Dt: 24.11.2006 registered basing on the complaint given by the complainant herein. In his statement he has stated that the vehicle was missing from 28.8.2006. Ex.A8 is the notice given by the Police Station, Karimnagar that requesting to submit his report since the claim is undetectable. Ex.A4 & A7 are the letters addressed by the complainant to Manager of opposite party as well as Transport Authority intimating about the theft committed on 28.8.2006. As seen from Ex.A3 the complainant has stated that he searched for his vehicle from 28.8.2006 till the date of complaint Dt: 24.11.2006 since the said vehicle is not available he has approached the Police and thus explained the delay in lodging the report. But contrary to the said contents and contents of the complaint in Ex.A4 in the letter addressed to opposite party he has misrepresented stating that on the same day of theft he went to CCS Karimnagar and lodged a complaint with Police, but Police registered the complaint only on 24.11.2006. It appears that this sort of false statement made by the complainant is only to cover up his latches for causing delay in lodging the complaint. Any how no prudent man will keep quiet from 28.8.2006 to 24.11.2006 without lodging any complaint. This delay on the part of complainant is sprouting doubt about the genuinity of the theft. Further he did not file any Final Report issued by the concerned Magistrate in pursuance of the notice issued by the Police requesting that the claim is undetectable. Thus there is no evidence that the crime is closed by the concerned Court holding that the crime is undetectable to confirm the theft of the vehicle. Further as per the terms of the contract between the parties under Ex.B1 Policy Clause 1 postulates as follows:[/FONT]
    [FONT=&quot]Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss of damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution, Inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or other criminal act which may be the subject of a claim under this Policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]9. But Ex.A4 letter addressed by the complainant to opposite party Dt: 13.3.2007 clearly proving that the complainant did not inform to the opposite party about the theft or about Police Investigation immediately after the incident Dt: 28.8.2006 or within the reasonable time for the reasons best known to him. This abnormal delay of six and half months after the incident clearly establishing that the complainant is not come to the Court with clean hands and he has hidden material facts and violated the terms of the agreement. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]10 As per the reported judgment CTJ Volume-15 No- XII, December 2007 NCDRC page 935, where in the Honourable National Commission held that there is no doubt that Consumer Forums are designated to help the honest consumer with bonafidy and not otherwise.[/FONT]
    [FONT=&quot](2) 1999 (1) CPR 33 (NC) The Honourable National Commission held that a party which suppressed the material facts does not deserve to get any relief. Therefore, opposite party rightly rejected the claim of complainant since the complainant failed to prove the theft of vehicle by way of any cogent and legal evidence he has not entitled for any compensation and it is liable to be dismissed.[/FONT]
  • adminadmin Administrator
    edited September 2009
    ORDER Date of filing : 11-07-2008
    Date of order : 01-04-2009
    IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
    C.C.No.112/2008
    Dated this, the 1st day of April 2009.
    PRESENT
    SRI.K.T.SIDHIQ : PRESIDENT
    SMT.P.RAMADEVI : MEMBER
    SMT.P.P.SHYMALADEVI : MEMBER

    Shanawas,
    S/o.Muhammadkunhi,
    ‘Green Yard’,
    Juma Mazjid Road, Kottikulam, } Complainant
    Rep.by his power of attorney holder,
    Shajeeb.M.A, S/oA.M.Muhammadkunhi,
    ‘Green Yard’ Juma Mazjid Road,
    Po.Kottikulam.
    (Adv. P.Narayanan, Hosdurg)

    The Manager,
    Oriental Insurance Co.Ltd,
    Branch office, Iind Floor, City point } Opposite party
    Building, M.G.Road, Kasaragod.
    (Adv. A.K.V.Balakrishnan, Kasaragod.

    O R D E R
    SRI.K.T.SIDHIQ, PRESIDENT



    Briefly stated the facts leading to filing the complaint are that the Maruti 800 Car bearing Reg.No.KL-14/C 8926 belongs to the complainant was stolen on 11-03-2006. The vehicle was duly insured with opposite party. The complainant lodged FIR before the S.H.O. Bekal and police registered the Crime No.112/06. Though the complainant preferred a claim before the opposite party, the same was repudiated on the ground that the vehicle was subsequently traced out by Vittal Police and it is in the custody of Excise Department of Karnataka. Since the stolen vehicle is traced out the complainant can repossess the same and hence opposite party is not liable to honour the claim on the ground of theft or burglary. Hence the complaint alleging deficiency in service on the part of opposite party.


    2. According to opposite party the vehicle was insured for Rs.1,45,000/- and the policy was issued to the registered owner. As against the claim of the complainant, he was asked to produce all claim papers including a non-detectable certificate from the police. But the complainant failed to produce the non-detection certificate since the vehicle was traced out and the vehicle is now under the custody of Excise Commissioner. E.I Bantwala, D.K. District, Karantaka and the complainant had not made any attempt to repossess the vehicle. As per the policy condition the company is liable to indemnify the owner only when the vehicle is undetected and hence there is no deficiency in service on the part of opposite party.


    3. Complainant filed affidavit as PW1 in support of his claim reiterating that is stated in the complaint. Exts. A1 to A8 marked. For opposite party Sri.T.P. Lakshmanan, Branch Manager, Kasaragod filed affidavit as DW1 and Exts. B1 to B3 are marked. Both sides heard and the documents perused carefully.


    4. The learned counsel for the complainant Sri. P.Narayanan argued that the policy nowhere provides that it is mandatory to produce Undetection Certificate from the concerned police to settle the claim and DW1 also deposed accordingly.


    5. Ext. A7 is a letter dated 3-12-08 issued from the office of Deputy commissioner of Excise, D.K. District, Mangalore to the complainant. In the said letter the authorized officer and Deputy Commissioner of Excise, D.K. District, Mangalore has stated that the confiscation proceedings of the vehicle KL-14/C 8926 are pending before the said court and at that status the vehicle cannot be released in favour of RC Owner.


    6. Therefore it is clear that the vehicle is under confiscation proceedings and as far as the complainant is concerned he had lost it irrecoverably since there is no provision to release a vehicle that is confiscated under the provisions of Abkari act.


    7. Now the question arises for consideration is whether the opposite party is liable to indemnify the loss as per the policy Ext. B1 issued to the complainant or not?


    8. As per Ext. B1 policy the insurer is liable to indemnify the insured against the loss or damage not only due to burglary house breaking or theft but for other reasons stated in the policy. Committing theft of a vehicle and using it for transporting contraband articles like illicit arrack is nothing but a malicious act. As per the policy issued, the opposite party is liable to indemnify the loss sustained to the insured due to the malicious act also. In case of malicious acts which causes loss to the insured the production of non-detection certificate is not at all relevant. Therefore non production of non-detectable certificate is not fatal for the settlement of the claim of the complainant on account of claim arising out of malicious acts. Hence repudiation of the claim of the complainant is a deficiency in service on the part of opposite party as envisaged under Consumer Protection Act. The insured’s Declared Value was Rs.1,45,000/- as per the policy issued to the complainant.
    Therefore the complaint is allowed and the opposite party is directed to pay Rs.1,45,000/- (Rupees One lakh fourty five thousand only) with interest @ 9% per annum from the date of complaint till payment along with a cost of Rs.2000/-.
  • adminadmin Administrator
    edited September 2009
    M.P KUNHAHAMMED KUTTY
    ...........Appellant(s)
    Vs.

    M/S ORIENTAL INSURENCE Co. Ltd
    ...........Respondent(s)

    ORDER
    By Smt. C.S. Sulekha Beevi, President,
    1. The Cinema Theatre 'Siyo Movies' owned by complainant is insured with opposite party for Rs.16,00,000/- under a Standard Fire and Special Perils Policy. During the currency of the policy on 12-6-2003 at about 9 PM while Cinema exhibition was going on a few miscreants trespassed into the theatre and committed mischief whereby much damage was caused to furniture and other items of the theatre. Damage was caused to 245 chairs and to the screen also. Police registered crime No.140/03 with regard to the incident. Opposite party was informed about the incident through phone and also by registered post. On 13-6-2003 in the absence of the complainant the surveyor deputed by opposite aprty conducted inspection and survey of loss. Since this inspection was conducted without gathering detailed information from complainant, a request for conducting a fresh survey was forwarded to opposite party by complainant. Opposite party accepted this request and deputed another surveyor. That this surveyor assessed that 245 chairs and screen were damaged. On 01-10-2003 opposite party informed the complainant that the total compensation payable for the loss is Rs.10,550/- only. Complainant send a registered letter requesting for copies of survey reports to which opposite party did not respond. Complainant is aggrieved by the compensation arrived by opposite party and hence this complaint. Complainant alleges that opposite party is liable to pay Rs.1,65,891/- as loss incurred for repair and replacement of chairs Rs.14,000/- towards consequential loss and Rs.25,000/- towards mental agony and hardships.


    2. Opposite party filed version admitting insurance coverage. It is submitted that on receiving intimation of the incident a surveyor Sri.K. Divakaran was deputed by opposite party to assess the loss. This surveyor inspected the spot on 13-6-2003 and submitted report. Later on 22-8-2004 opposite party received a letter from complainant expressing dissatisfaction in the conduct of survey. Though the grounds on which complainant sought second survey was not true, in order to resolve the dispute opposite party deputed another surveyor Sri.Vijayaram. This surveyor also inspected and assessed the loss/damage. The second surveyor submitted his report on 09-9-2003. As per the report of second surveyor the findings of the first surveyor in regard to damage/loss stood ratified. That the total claim was finalised as Rs.10,550/- basing upon both these survey reports. Though complainant was informed about this, he did not respond. Later he requested to issue copies of the survey report. Survey reports are classified as private and confidential and hence copies could not be furnished. The claim could not be settled due to the conduct of complainant who was not inclined to settle and intended to file unnecessary litigation. That there is no deficiency in service and that complainant is not entitled to any reliefs.


    3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A9 marked for him. Opposite party filed counter affidavit and Exts.B1 to B6 marked for opposite party. Either side has not adduced any oral evidence.


    4. Complainant is aggrieved that opposite party failed to pay sufficient compensation for the loss sustained due to malicious damage to the cinema theatre insured with opposite party. Opposite party refutes the complaint on the submission that the final claim of Rs.10,550/- was arrived on the basis of the two survey reports and that the complainant is therefore not entitled to any further amount.


    5. Admittedly two surveyors had assessed the damage and submitted their reports. Ext.A9 is the first survey report dated, 11-8-2003. This surveyor has assessed the net loss as Rs.21,000/-. After deducting Rs.10,000/- as policy excess as per Ext.B6 Rs.10,550/- has been arrived as claim amount by opposite party. Ext.B5 is the second survey report by Sri Vijayaram. In Ext.B5 it is seen that the surveyor has accepted the observations of loss noted in Ext.A9 and justified the assessment and decision of first surveyor. In Ext.B5 the surveyor has stated as under:
        1. “I do not find any unjustifiable decision on the part of the first surveyor and as such without substantial and clear proof to the contrary; find it difficult to make any change in the assessment.”


    6. The assessment of loss is challenged mainly by complainant in the number of chairs that were repaired and replaced and also the non-consideration of damage to screen. According to complainant 245 chairs were damaged. As per Ext.A9 the surveyor has taken into consideration damage of 90 chairs only, ie., 60 chairs of the middle class and 30 chairs of lower class. Counsel for complainant relied upon Ext.A2 scene mahazar and submitted that in this scene mahazar which was prepared just one day after the incident it is stated that chairs of 8 rows have been uprooted and broken. It is also seen in Ext.A2 that tube lights and fan were broken and seen fallen on the floor. The loss to such items have not been considered for assessment of claim. We have to say that both the surveyors are silent as to the exact number of seats/chairs in each of the upper, middle and lower classes. In Ext.A9 it is simply stated 419 numbers of wooden chairs with wooden seats are provided for the seating in the theatre. Ext.B2 series which are photographs accompanying Ext.A9 survey report shows that much damage is caused to the chairs. Some of the chairs are seen totally damaged. It was contended by complainant that they had to be replaced. Surveyor has assessed the loss only for repairing and not for replacement. The damage to some chairs in Ext.B2 photograph would show that the repair cost would be higher than a replacement. In such a case the contention of the complainant that 245 chairs had to replaced does have some substance. Being a cinema theatre generally all seats of the same class should appear uniform and alike. When some chairs which are totally broken are replaced with chairs of steel frame it is only justifiable and reasonable to consider that complainant had to re-do all the 245 chairs which were damaged. Further the surveyor has assessed only Rs.250/- as repair charges (including labour charges) for each chair of middle class and Rs.200/- as repair charges (including labour charges) for each chair in lower class. In our view, the labour charges for such repair work which involves skilled labour is very high. Surveyor has stated that the chairs were made of Jack/teak wood. On perusal of Ext.B2 and taking into consideration the cost of wood and labour charges we have to say that the assessment made by surveyor is very low. In Ext.B5 the second surveyor has stated that 245 chairs were seen remade. From the evidence and materials placed before us we have no dispute to hold that assessment of loss made by surveyor with regard to damage to chairs is not justifiable. As per Ext.A5 quotation complainant has spend Rs.1,59,250/- for repairing 245 chairs @ Rs.650/- per chair. In our view complainant can be allowed repair charges for 245 chairs @ Rs.200/- per chair which would be reasonable.


    7. The claim of the complainant for replacement of screen is not supported by any reliable evidence. In Ext.B2 photograph the screen is seen in tact on 11-8-2003. So we disregard the claim of the complainant regarding replacement of screen. Thus we consider that complainant is entitled to Rs.49,000/- (245 chairs x Rs.200/-) towards loss sustained for damage to chairs. After deducting policy excess of Rs.10,000/- opposite party is liable to pay an amount of Rs.39,000/-. In our opinion complainant has to be allowed interest @ 6% upon the above amount from the date of complaint till payment which would be sufficient compensation.


    8. In the result we allow the complaint and order opposite party to pay Rs.39,000/- (Rupees thirty nine thousand only) to complainant with interest @ 6% per annum from the date of complaint till payment within one month from the date of receipt of copy of this order.
  • adminadmin Administrator
    edited September 2009
    ORDER DELIVERED BY Sri. R.G.PATIL, PRESIDENT



    1)[FONT=&quot] [/FONT]This is a complaint praying to direct the OP to pay to the complainant Rs.2,25,000-00 with interest, compensation of Rs.50,000-00 and cost of proceedings.

    2)[FONT=&quot] [/FONT]Brief facts of the complaint are that the complainant’s Tata Tipper No.MH-06-9043 was insured with the OP for the period 7-6-06 to 6-6-07. On 20-01-07 the driver Raju took away the Tipper and did not return. On the direction of the JMFC II Karwar the police have investigated the matter and filed “C” final report. The complainant lodged claim with the OP on 10-3-07. The OP has not honored the claim. There is deficiency of service on the part of the OP and the OP is liable.

    3)[FONT=&quot] [/FONT]Inspite of service the notice the OP failed to appear before the Forum. Hence he is set ex-parte.

    4)[FONT=&quot] [/FONT]The complainant has filed affidavit and got marked Ex.C-1 to C-12.

    5)[FONT=&quot] [/FONT]The point that arises for our consideration is: “Whether there is deficiency of service on the part of the OP” ?

    6)[FONT=&quot] [/FONT]It is the contention of the counsel for the complainant that the complainant’s Tata Tipper No.MH-06-9043 was insured with the OP for the period 7-6-06 to 6-6-07. On 20-01-07 the driver Raju took away the Tipper and did not return. On the direction of the JMFC II Karwar the police have investigated the matter and filed “C” final report. The complainant lodged claim with the OP on 10-3-07. The OP has not honored the claim. There is deficiency of service on the part of the OP and the OP is liable.

    7)[FONT=&quot] [/FONT]We have gone through the pleadings, affidavit and documents submitted by the complainant. Ex.C-1 shows that the tipper is insured with the OP. The certified copies at Ex C-3 to C-7 show that the tipper was stolen away. Ex.C-8 the legal notice is not replied by the OP. The contention of the complainant has not been challenged by the OP. The failure to attend the claim of the complainant is deficiency of service by the OP. The complainant has claimed Rs 2,25,000-00 towards total loss. The IDV is Rs.2,00,000-00. The incident took place 6 months after the policy is issued. The complainant is entitled for the IDV of Rs 2,00,000-00 after deductions of the depreciation amount, with interest @ 9% p.a. from 4-2-09 till realization and cost of Rs 1000-00.
    We pass the following order.
    ORDER
    The complaint is allowed
    The OP is directed to pay to the complainant the IDV of Rs.2,00,000-00 (Rs.Two lakh only) after deductions of the depreciation amount, with interest @ 9% p.a. from 4-2-2009 till realization and cost of Rs.1,000-00 (Rs.One thousand only).
  • adminadmin Administrator
    edited September 2009
    Order delivered by Sri. Nazeer Ahmed U. Shaikh, Member
    1)[FONT=&quot] [/FONT]This is a complaint praying to direct the OPs to pay Rs.80,000-00 on each certificate with 18% interest, damages of Rs.10,000-00, compensation of Rs.25,000-00 towards mental torture and cost to the complainant.

    2)[FONT=&quot] [/FONT]Brief facts of the complaint are that on an application No. T 1358310, the OP-2 issued certificate No.T 0132728 under Registered Folio No.T 03323333, worth Rs.5,000-00 of 500 number of units on 15-4-93. On another application also the complainant has received certificate worth Rs 5000-00 of 500 units both the certificates under the LIC Mutual Fund sponsored Dhan Vikas (I) scheme, which was to be terminated on 15-4-1998. After the termination of the scheme the complainant requested the OPs to return with formidable amount + interest with Bonus Units. On 29-9-93 he wrote a letter seeking payment of maturity amount. But the OPs till today have not repaid the amount. There is deficiency of service by the OPs and they are liable.

    3)[FONT=&quot] [/FONT]The OPs filed WS admitting that the complainant applied for the Dhan Vikas Scheme by investing Rs.5,000-00 under Certificate No.01382728. The scheme was converted as an open ended scheme as LIC MF Equity Fund- Growth plan. A paper notification was issued in the daily newspaper. A letter to the applicants was also made to opt either the dividend or the growth option. The complainant has not replied the same. So his earlier scheme was converted into LIC MF Equity fund growth plan. He has not invested any amount of Rs.5,000-00 in another scheme. As on 24-2-2009 the unit value was increased to Rs.13.5296 as against the issue price of Rs.10-00. The NAV (Net Asset Value) of the fund is market related and changes daily. Therefore the complainant is entitled for the value of the unit on which the market value of the unit depends. There is no deficiency of service by OPs. The OPs pray to dismiss the complaint with costs.

    4)[FONT=&quot] [/FONT]Both the parties have filed their affidavits. The complainant has got marked Ex.C-1 to C-10 and the OP Ex.R-1

    5)[FONT=&quot] [/FONT]The point that arises for our consideration is: “Whether there is deficiency of service on the part of the OPs?

    6)[FONT=&quot] [/FONT]It is the contention of the complainant that he invested Rs.5,000-00 + Rs.5,000-00 in the LIC Mutual Fund sponsored Dhana Vikas (I) scheme on 15-4-1993. The scheme is terminated on 15-4-1998. After the termination of the scheme the complainant demanded back the invested money with interest. But the OP till today has not paid the same. There is deficiency of service by the OPs and they are liable.

    7)[FONT=&quot] [/FONT]On the other hand the counsel for the OP vehemently urged that the complainant has invested only Rs.5000-00 but not Rs.10,000-00 in the LIC Mutual Fund sponsored Dhana Vikas (I) scheme which was later converted into LIC MF Equity Fund Growth Plan after giving paper publication and issuing notice to the applicants. The fact is within the knowledge of the complainant. The market value of the units changes every day. So, the complainant is entitled for the value of the unit on which the market value of the units depends. The complainant is not entitled for the claim amount. There is no deficiency of service by the OPs and they are not liable.

    8)[FONT=&quot] [/FONT]We have gone through the pleadings, affidavits and documents submitted by the parties. It is a fact that the complainant has invested Rs.5000-00 in LIC Mutual Fund sponsored Dhana Vikas (I) scheme in the year 1983. It is also a fact that the said scheme was converted into LIC MF Equity fund growth plan. The OPs contend that while converting this scheme it was published in the daily newspapers and intimation was sent to the applicants. But the records produced by the OPs are not sufficient to hold that any notice was issued to the complainant to show that the conversion of the scheme was intimated to the complainant. The complainant also has not taken any action since 1998. He has not denied the contention of the OP that the value of the unit depends upon the market value on every day. The (NAV) Net Asset Value of the fund is market related and changes daily. So, the complainant is entitled only for the value of the unit on the day he claims value of the Units under certificate No.T 0132728. Since the complainant has not substantiated the claim for another certificate it shall be rejected. So in our view if we allow the complaint directing the OPs to pay to the complainant the value of the units on the day the complainant seeks the refund. Since there is no record produced by the OPs that the scheme was converted into another scheme the OPs are liable to pay compensation of Rs.1,000-00 to the complainant with cost of Rs.500-00
    We pass the following order.
    ORDER
    [FONT=&quot] The complaint is allowed. The OPs are directed to pay to the complainant the value of the units under certificate No.T 0132728 on the day the complainant seeks refund and pay compensation of Rs.1,000-00 (Rs.One thousand only) and cost of Rs.500-00 (Rs. Five Hundred only). The other claim of the complainant is rejected. [/FONT]
  • adminadmin Administrator
    edited September 2009
    COMPLAINANT


    [FONT=&quot]BY-SRI. N.PRAKASH, [/FONT]
    [FONT=&quot] SRI. H. M. RAJESH, [/FONT]
    [FONT=&quot] ADVOCATES, BELLARY. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]//VS//[/FONT]
    [FONT=&quot]SRI. MAINUDDIN, [/FONT]
    [FONT=&quot]S/O LATE JATAKA BASHA SAB, [/FONT]
    [FONT=&quot]D.NO.72, ABDUL SALAM STREET, [/FONT]
    [FONT=&quot]COWL BAZAAR, BELLARY. [/FONT]
    RESPONDENTS


    [FONT=&quot] [/FONT]
    [FONT=&quot]BY-SRI. K. SUBBA RAO, [/FONT]
    [FONT=&quot] ADVOCATE, BELLARY.[/FONT]
    [FONT=&quot]FOR RESPONDENT No.2. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]RESPONDENT No.1: Exparte. [/FONT][FONT=&quot] [/FONT][FONT=&quot][/FONT]

    1. THE DIVISIONAL MANAGER,
    ORIENTAL INSURNACE CO. LTD.,
    DIVISIONAL OFFICE, NO.10, 79,
    DWARAKA 2ND FLOOR,
    UTTAMAR GANDHI SALAI,
    CHENNAI – 600 034.

    2. THE DIVISIONAL MANAGER,
    ORIENTAL INSURANCE CO.,
    1ST FLOOR, MAIN ROAD,
    PARVATHI NAGAR, BELLARY.
    [FONT=&quot] [/FONT][FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot][/FONT]
    [FONT=&quot]//JUDGMENT//[/FONT]
    [FONT=&quot] [/FONT]



    [FONT=&quot] This is the complaint filed by Complainant Mainuddin against Respondent No.1 and 2 Oriental Insurance Co. Ltd. under Sec-12 of C.P. Act for to award an amount of Rs.99,635/- with interest @ 24% p.a. towards expenses incurred by him for repair of his damaged vehicle in the accident, to award an amount of Rs.1,00,000/- towards loss caused to him, to award an amount of Rs.50,000/- towards mental agony, inconvenience, frustration suffered by him and an amount of Rs.2,000/- towards cost of this litigation with other reliefs as deems fit to the circumstances of this case. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2. The brief facts of the Complainant’s case are that; [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] He is the owner and R.C. holder of vehicle bearing No.KA-02/D-1818 comprehensively insured with Respondents Insurance Company met with an accident on 07/02/2008 at 4.30 a.m. near Banapura cross while Insurance Policy was in force and in the said accident his vehicle badly damaged. He informed same to the Police as well as Respondents Insurance Company. Thereafter, he got repaired the vehicle and filed his claim petition with necessary records, but Respondents shown their negligence in settling his claim even after oral and written requests and thereby both Respondents found guilty under deficiency in their services towards him. Hence, he filed this complaint for the reliefs as prayed in it. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] 3. The Respondent No.1 is placed exparte. The Respondent No.2 appeared in this case through its Advocate filed Written Version by contending that, Insurance Policy issued by it by coverage of the Insurance of the said vehicle is not to the name of Complainant. The claim of Complainant for to repairs of the said vehicle is subject to the proof. Insurance Company appointed Surveyor who assessed the loss and damage as per his report. The Complainant not produced FIR, Charge Sheet, Panchanama, IMV report etc. for its verification. Accordingly, it was prayed by it to dismiss the complaint among other grounds. [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]4. In view of the pleadings of parties, now the points that arise for our consideration and determination are that; [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1.[/FONT]
    [FONT=&quot]Whether the Complainant proves that on 07/02/2008 on NH-63 near Banapura Cross his vehicle bearing No.KA-02/D-1818 comprehensively insured with Respondents Insurance Company met with an accident while comprehensive Insurance Policy was in force, his vehicle badly damaged, he informed the same to the Police as well as to the Respondents Insurance Company, thereafter he got repaired the said vehicle, filed claim petition with necessary records before the Respondents Insurance Company, but Respondents Insurance Company shown its negligence in settling his claim even after oral and written requests and thereby both Respondents found guilty under deficiency in their service towards him? [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2. [/FONT]
    Whether the Complainant is entitled for reliefs as prayed in this complaint?

    [FONT=&quot] [/FONT]
    [FONT=&quot]3.[/FONT]
    [FONT=&quot]To what relief the Complainant is entitled for? [/FONT]
    [FONT=&quot]//POINTS[/FONT][FONT=&quot]//[/FONT]












    5. Our findings on the above points are as under.
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot]Point No.1: [/FONT]
    [FONT=&quot]In Affirmative. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Point No.2: [/FONT]
    [FONT=&quot]As discussed in detail in the body of this Judgment.[/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Point No.3:[/FONT]
    [FONT=&quot]In view of the findings on Point Nos.1 and 2, we pass the final order for the following; [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]//REASONS//[/FONT]
    Point Nos.1 & 2: -


    6. [FONT=&quot] In order to prove the facts involved in these two points, affidavit evidence of Complainant was filed, he was noted as P.W.1. Documents Ex.P.1 to Ex.P.11 are marked. No Written Arguments filed. On the other hand, affidavit evidence of Divisional Manger of Respondents Insurance Company was filed, he was noted as R.W.1 and documents Ex.R.1 to Ex.R.3 are marked. No written arguments filed. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 7. The Respondents Insurance company took number of grounds in its W.V. as well as in affidavit evidence of R.W.1 that, the Complainant not produced copy of FIR, IMV report, Panchanama, copy of D.L. etc. for its verification to enable it to consider the claim of him. Hence, his claim was not considered. At the time of arguments advanced by the learned advocate for Respondent No.2 one ground mainly stressed for consideration is that, the Insurance Policy Ex.R.2 of the said vehicle and its copy Ex.P.2 stands in the name of one Durgappa as he is the owner of the said vehicle. Present Complainant Mainuddin is not policy holder of said vehicle as on date of accident. There is no privity of contract in between Complainant and Respondents Insurance Company. The privity of contract existed in between the said Durgappa with Respondents Insurance Company as such, this Complainant is not entitled for claim in the light of documents Ex.R.2 and Ex.P.2. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 8. The learned advocate for Complainant submitted that, the present Complainant Mainuddin purchased the said vehicle from its previous owner Durgappa. Now R.C. stands in the name of Complainant. He intimated the same to the Respondents Insurance Company, but Insurance Company not effected the transfer of it in the Insurance Policy. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 9. In pursuance of the submissions made on both sides, we have referred Ex.R.1 and Ex.P.5 which are the copies of R.C. of said vehicle. It shows the name of Complainant Mainuddin as transfer in his name was effected in R.C. from 08/02/2007. The accident took place on 07/02/2008 that means as on the date of accident, the present Complainant Mainuddin was the owner of said vehicle. Now, Ex.R.2 original Insurance Policy of the said vehicle discloses the name of Durgappa as he is a policy holder of said vehicle. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 10. The question before us is that, what is the legal effect of such circumstances with regard to non-standing the name of Complainant in Insurance Policy Ex.R.2 as on the date of accident and what will be its effect on his claim petition vide Ex.P.3. In this regard, we have referred a ruling reported in 2008 (1) TAC 237 (NC) Shri Narayana Singh Vs. New India Assurance Co. Ltd. in which their lordships of Hon’ble National Commission discussed the case similar to the facts of this case and held that, the benefit under the Policy in force will automatically accrue to the new owner. The bonus or malus already applicable to the policy holder would continue until expiry of the Policy or cancellation of it. Bonus-malus will apply as per the new owner’s entitlement. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 11. In another ruling reported in 2009 (1) CPC (NC) 482 their lordship of Hon’ble National Commission held in such case that, transfer of Insurance Policy automatically transferred to the transferee after sale of vehicle – Complainant held entitled to the benefit under the Policy. [/FONT]
    [FONT=&quot] 12. The principles stated by their lordships in two rulings cited above are aptly applicable to the facts of this case. Admittedly, the Insurance Policy stands in the name of previous owner Durgappa at the time of accident. Transfer of vehicle effected in the name of present Complainant from Durgappa while Insurance Policy was in force. Before transfer of Insurance Policy in the name of present Complainant it met with an accident. The claim application filed by the Complainant before Respondents Insurance Company is maintainable as the Insurance Policy of the said vehicle automatically transfers in the name of present Complainant from previous owner Durgappa. Hence, the present Complainant is entitled to get benefit under the policy even though his name is not transferred in the Insurance Policy. Denial of claim of Complainant on this ground by the Respondents Insurance Company is nothing but a deficiency in their service towards the Complainant. Accordingly, we rejected the submission made by the learned advocate for Respondent No.2 in this regard. We accepted the submission made by the learned advocate for Complainant and thereby we answered Point No.1 in affirmative. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 13. As regards to the reliefs claimed by the Complainant, he claimed for to award an amount of Rs.99,635/- as he incurred expenses for repair of the said vehicle. In support of his claim, he submitted bills Ex.P.6 to Ex.P.11. In support of it, the learned advocate for Complainant relied on the ruling reported in I (2005) CPJ 285 National Insurance Co. Ltd. Vs. Lalta Ram. In this ruling, the lordship of Hon’ble Uttar Pradesh State Commission held as “Insurance – Assessment of loss - Vouchers produced are proof of expenditure, no further proof is necessary”. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Respondents Insurance Company placed reliance on Ex.R.3 which is a Surveyor’s report. As per the said report, Surveyor assessed net loss of Rs.35,500/-. In the circumstances stated above, we have referred a ruling reported in 2008 CTJ 580 (CP) (NCDRC) United India Insurance Co. Ltd. Vs. Smt. Maya, in which their lordship of Hon’ble National Commission held as Surveyor’s report should not be discarded summarily. It has to be given importance. It deserves as Surveyor is an independent and qualified person appointed under relevant provisions of Insurance Act. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 14. In view of the principles of said ruling, we are of the view that, placing reliance on documents Ex.P.6 to Ex.P.11 and ruling reported in I (2005) CPJ 285 is not proper as the ruling reported in 2008 CTJ 580 (CP) (NCDRC) is of the Hon’ble National Commission. Hence, placing reliance on report of Surveyor Ex.R.3 is proper and safe. Hence, we placed reliance on Surveyor’s report Ex.R.3 and took an amount of Rs.35,500/- as a net loss incurred by the Complainant towards repair of the said vehicle which is indemnifiable by the Respondents Insurance Company. Hence, the Complainant is entitled to recover an amount of Rs.35,500/- from the Respondents Insurance Company jointly and severally under this head. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 15. The second claim of him is for to award an amount of Rs.1,00,000/- towards loss sustained by him. We cannot find what kind of loss he sustained to claim such an huge amount of Rs.1,00,000/-. Absolutely there are no evidences in this regard. Accordingly, we have rejected this prayer of him. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]16. Another prayer of Complainant is for to award Rs.50,000/- towards mental agony, inconvenience, frustration suffered by him. There are no acceptable evidences for to assess such amount towards mental agony, inconvenience or frustration suffered by him. However, we have noticed the deficiency in service on the part of these Respondents towards Complainant, as such, we have granted an amount of Rs.3,000/- to the Complainant recoverable from the Respondent No.1 and 2 jointly and severally which is proper and reasonable amount to be granted under this head. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 17. The last of prayer of him is for to award an amount of Rs.2,000/- towards cost of this litigation. We feel that the amount mentioned by the Complainant is proper and reasonable amount as such, he is entitled to recover an amount of Rs.2,000/- towards cost of this litigation from the Respondent No.1 and 2 jointly and severally. [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 18. Another prayer of him is for to award interest @ 24% p.a. from the date of accident till realization of full amount. Having regards to the facts and circumstances of this case, we are of the view that, granting interest @ 9% p.a. from the date of this complaint till realization of full amount is proper rate of interest. Accordingly, it is granted and thereby we answered Point No.2 . [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Point No.3: - [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]19. In view of findings on Point Nos.1 & 2, we pass the following; [/FONT]
    [FONT=&quot]//ORDER//[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The complaint filed by the Complainant is partly allowed with cost. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Complainant is entitled to recover total sum of Rs.40,500/- (Rupees Forty Thousand Five Hundred only) including cost from the Respondent No.1 and 2 jointly and severally. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Complainant is entitled to recover interest @ 9% p.a. on Rs.40,500/- from the date of this complaint i.e. 01/01/2009 till realization of full amount from the Respondent No.1 and 2 jointly and severally. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Respondent No.1 and 2 jointly and severally are hereby granted two months time from the date of this Judgment for to make the payment of total sum and interest as stated above to the Complainant. [/FONT]
    [FONT=&quot][/FONT]
  • adminadmin Administrator
    edited September 2009
    Sri. B.G. Prakash, S/o. Govindaiah,
    R/o. Ramanahalli,
    CHIKMAGALUR CITY.
    (By Sri. Hareesh Singatagere, Adv.)
    V/s
    OPPONENTS:
    1. The Manager,
    M/s. Oriental Insurance Co., Ltd.,
    Dwaraka, II Floor,
    79, Uttamar Gandhi Salai,
    CHENNAI – 600 034.

    2. The Manager,
    M/s. Oriental Insurance Co., Ltd.,
    T.A.P.C.M.S. Complex,
    Near Hanumanthappa Circle,
    CHIKMAGALUR CITY.


    (By Sri T.R. Harish, Adv.)

    Written by the President:

    [FONT=Times New Roman, serif]- ::: O R D E R ::: -[/FONT]

    1. The complainant has filed this complaint u/s 12 of the Consumer Protection Act against the opponents for the deficiency of service in non settling the own damage claim and prays for compensation of Rs.5,000/- towards mental agony along with court costs as detailed in the complaint.
    2. The facts of the case in brief are as follows:-
    The complainant is an owner of Heavy Goods Vehicle bearing Registration No.KA-18-A-5678 and insured with the opponents under package policy bearing No.412000/31/2007/11901, which is valid from 20.09.2006 to 19.09.2007. Such being the case, the vehicle met with an accident on 06.06.2007 and got damaged. The said fact was intimated to the 1st opponent and submitted the claim form with necessary documents and original bills. But they have not settled the claim of the complainant. The complainant has spent Rs.1,30,000/- towards the repair of the said vehicle.
    3. In this regard, the complainant has issued a legal notice to the 1st opponent. Even after the receipt of the legal notice, they have not settled the claim of the complainant, due to which the opponents have rendered deficiency of service. Hence, this complaint for the above referred reliefs.
    4. After the service of the notice, the opponents have appeared through their counsel and filed version contending that the vehicle was insured with them vide policy No.412000/31/2007/ 11901 and any liability if any is governed by the terms and conditions of the policy. After the accident they have appointed an I.R.D.E.A. approved Surveyor Mr. S.H. Shivashankar of Chitradurga, who has conducted a spot survey and prepared report dtd.14.06.2007. Thereafter, another Surveyor was appointed for final survey and he has submitted a final survey report on 14.07.2007 assessing the loss caused at Rs.59,000/- net liability assessed. The vehicle was 1999 model one and it met with an accident on 06.06.2007. 40% depreciation has been deducted on the parts and 50% depreciation has been deducted on the rubber parts in accordance with the terms and conditions of the insurance policy.
    5. Further the opponents at Chennai has processed this claim and effected a settlement for Rs.38,154/- and sent a cheque through No.28543 dtd.15.12.2008 drawn in favour of M/s. Sri Ram Transport Finance Company Ltd., to which the company vehicle was hypothecated and the said financier has submitted a clean discharge voucher dtd.15.12.2008 and they have accepted a settlement in full and final. As such the complainant is not entitled to receive any amount from this opponent. The further denied that the complainant has spent Rs.1,30,000/- towards the repair of the vehicle and contended that there is no deficiency of service. Hence, prays for the dismissal of the complaint.
    6. The complainant has filed his affidavit evidence as P.W.1 along with the documents and the same have been marked as Exs.P1 to P4.
    7. The opponent has also filed affidavit evidence as R.W.1 along with the documents and the same have been marked as Exs.R1 to R22.
    8. We heard the arguments advanced by both the parties’ counsels.
    9. Now, the points that arise for consideration of this Forum are as follows:-

    i) Whether there is any deficiency in service on the part of
    the opponents?

    ii) If so, whether the complainant is entitled to the
    reliefs as sought?
    iii) What Order?
    10. Our findings on the above points are as follows:-

    i) Point No.1: In the Affirmative

    ii) Point No.2: In the Affirmative

    iii) Point No.3: See, as per order below

    - ::: R E A S O N S ::: -
    11. Point Nos.1 & 2: There is no dispute with respect to the complainant’s vehicle insured with the opponent and also no dispute with respect to the accident took place on 06.06.2007. The dispute raised by the complainant is that inspite of issuance of legal notice also they have not settled the claim.
    12. On contrary, the opponents have taken contention that two surveyors were appointed for spot survey and to assess the loss and to submit the final survey and they have received a final survey report dtd.14.07.2007 and assessed the loss to the tune of Rs.59,000/-. Subsequently, they have issued a cheque for Rs.38,154/- by processing the claim at Chennai and they have issued a cheque to the financier of the complainant and he has accepted as full and final settlement. Hence, they submit that there is no deficiency of service.
    13. On perusal of the survey report, which is marked as Ex.R20, we noticed that after deductions as stated in version he has shown Rs.59,000/- is payable to the complainant, whereas they have issued only Rs.38,154/- against to the assessed amount. The opponents have not given a just reason to reduce the amount shown in the final survey report and we also consider that there is no base for making scrutiny of the expenditures made by the complainant parallel to the survey report.
    14. The opponents have produced Ex.R22 to show that they have made scrutiny of the claim settlement. But we consider after the submission of the final survey report that they cannot reduce the amount by making separate scrutiny. Therefore paying the less amount against to the final survey report will amounts to deficiency of service and we noted that they have taken nearly two years to settle the claim of the complainant. Therefore, there is also an abnormal delay in settling the claim of the complainant.
    15. Therefore, the complainant is entitled to get an amount of Rs.59,000/- as assessed by the Surveyor excluding the payment is already paid, he is entitled to get Rs.20,846/-. For the deficiency of service in non settling the claim of the complainant as per the final survey report, the opponent is liable to pay Rs.5,000/- as a compensation and the complainant is also entitled to get Rs.2,000/- for the delay caused in settling the claim along with Rs.1,000/- towards the costs of this complaint. For the above said reasons, we answer the above point Nos.1 and 2 in the affirmative.
    16. Point No.3: In view of our findings on above points the complaint filed by the complainant has to be allowed. In the result we pass the following order.

    - :::O R D E R::: -
    1. The complaint filed by the complainant is partly allowed.
    2. The opponents are hereby directed to pay an amount of Rs.20,846/- being the balance amount as per the final survey report submitted by their Surveyor towards the repair charges of the vehicle.
    3. The opponents are also hereby directed to pay compensation Rs.5,000/- towards the deficiency of service and to pay Rs.2,000/- towards the delay caused in settling the claim of the complainant along with costs of Rs.1,000/- towards the litigation expenses, within one month from the date of this order, failing which the amount shall carry interest at the rate of 9% P.A. from the date of default till realisation.
  • adminadmin Administrator
    edited September 2009
    ORDER


    COMPLAINT FILED: 27.11.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 09th APRIL 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2581/2008

    COMPLAINANT M/s. Reddy Veeranna Constructions Pvt. Ltd., A company registered under the provisions of the Companies Act, 1956, Classic Court, II Floor, 9/1, Richmond Road, Bangalore – 560 025. Represented by its Assistant General Manager Finance Mr. S. Ramanath. Advocate (Unnikrishnan. M)

    V/s.

    OPPOSITE PARTIES

    1. The Oriental Insurance Co., Ltd., Divisional Office No.2, 2903, 1st Floor, New Muslim Hostel Complex, Opp: Fire Brigade, 1st Main, Saraswathipuram, Mysore – 570 009.

    2. The Oriental Insurance Co., Ltd., Regional Office, 44/45, Leo Shopping Complex, Residency Road, Bangalore. Advocate (Manoj Kumar. M.R.)


    O R D E R

    This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay Rs.13,15,035/- towards the cost of repairs of vehicle No. KA-03-D-188 and compensation of Rs.6,00,000/- and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant being the R.C. Owner of the vehicle bearing No. KA-03-D-188 got insured the said vehicle for a period from 29.10.2007 to 28.10.2008 through OP. OP collected the necessary premium and issued the policy noting the IDV as Rs.17,65,000/-. On 19.11.2007 the said vehicle met with an accident, thereby severe damages were caused to the said vehicle. Then immediately complainant under the intimation to the OP left the said vehicle to M/s. Jaika Automobiles the authorized service agency for Tata Motors. The vehicle was inspected by the surveyor of Jagadalpur attached to OP office on 04.12.2007. The said M/s. Jaika Automobiles submitted the revised estimation after dismantling to the tune of Rs.13,15,035/- the cost of the repairs, earlier estimation was for Rs.6,43,740/-. Complainant made repeated requests and demands to OP to treat the said claim as total loss and release the required amount for repairs, but it went in vain. Complainant even requested the OP to release atleast 75% of the estimated cost. Again there was no response. On the other hand OP came forward to release only Rs.5,00,000/- and odd which is not acceptable to the complainant. Complainant paid Rs.2,00,000/- to the said Jaika Automobiles to get the vehicle repaired as early as possible, but OP did not extend its helping hand as contemplated in terms of policy conditions. The vehicle is lying in the workshop for more than one year.

    It is all because of the carelessness and negligence on the part of the OP. Complainant for no fault of his, is made to suffer both mental agony and financial loss. Thus complainant felt the deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.


    2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the delay if any with regard to the repairs of the said vehicle is mainly because of non-cooperation by the complainant. The demand to release 75% of second estimation which is for Rs.13,15,035/- is arbitrary. No final repair bills are produced for settling the claim. The surveyor has not examined the said vehicle. On the receipt of the intimation OP surveyor examined the said vehicle and assessed the estimated liability to the tune of Rs.7,40,000/-. Under the circumstances OP agreed to release 75% of the same that is to the tune of Rs.5,55,000/-, complainant is not accepting the same. So no fault lies with the OP. Unless the vehicle is completely repaired, made road worthy and inspected by the concerned surveyor and if he opines that in order to get repair the said vehicle Rs.13,00,000/- and odd is needed, then only OP liability lies. Mere production of estimation is no proof of actual expenses incurred for the repairs of the said vehicle. Among these grounds, OP prayed for the dismissal of the complaint.


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


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


    5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order. R E A S O N S 6. At the outset it is not at dispute that the complainant is the R.C. Owner of the vehicle bearing No. KA-03-D-188 and OP covered the insurance of the said vehicle which was valid from 29.10.2007 to 28.10.2008. It is also not at dispute that the said vehicle met with an accident within 16 days from the date of purchase that is 19.11.2007, thereby severe damages were caused to the vehicle. Then complainant left the said vehicle to M/s. Jaika Automobiles an authorized service agency for Tata Motors. The surveyor of Jagadalpur examined the said damages and gave his report. It is also not at dispute that the first estimation that was given for the repairs was Rs.6,43,740/-. Now it is the contention of the complainant that after the dismantling of the said vehicle the actual damages will be assessed and after dismantling the said automobiles gave a revised estimation to the tune of Rs.13,15,035/-.



    7. Complainant wants to base his claim only on the strength of the revised estimation that is given by the M/s. Jaika Automobiles, there is no final survey report submitted by the technically qualified person in that regard. The fact that the said vehicle may be repaired is also not at dispute. So the claim of the complainant to treat his prayer as total loss does not find place. As against this it is contended by the OP that their surveyor has given the interim report stating that estimated liability will be to the tune of Rs.7,40,000/- and against the assessed estimated liability they are prepared to release 75% of the same that is Rs.5,55,000/-, but the complainant is not prepared to accept the same.



    8. On the perusal of the complaint and the evidence complainant wants that the 75% of the revised estimation is to be released to them. As already observed by us, revised estimation is not a conclusive proof the actual expenses incurred towards the repairs of the said vehicle. Further complainant states that he has paid Rs.2,00,000/- to the said automobiles to get the vehicle repaired as early as possible. But Automobiles want 75% of the revised estimation. OP having retained the said claim of the complainant for all these months, naturally caused inconvenience to the complainant, in our view delay in settling the said claim amounts to deficiency in service. No final survey report is produced in this complaint. We also find some substance in the defence of the OP that unless the said vehicle made road worthy and it is subjected to the examination of the surveyor to assess the total expenditure incurred for repairs, OP cannot settle the claim.



    9. Complainant being a big construction company by this time they would have made arrangements to get vehicle repaired as early as possible if they are really in need of the service of the said vehicle. The insistence on the part of the complainant to release 75% of revised estimation, in our view amounts to arbitrary claim. Complainant has got the equally efficacious remedy to redress the grievance. When the OP is ready to release Rs.5,55,000/- by this time complainant would have accepted the same as an interim settlement and got repaired the vehicle from the said automobiles. Including Rs.2,00,000/- that is paid by the complainant a lump sum amount is paid to M/s. Jaika Automobiles which is nearing to the 75% of the revised estimation. With all that complainant has not shown the interest.



    10. Having considered the facts and circumstances of the case, when OP is ready to settle the claim, it would have been more fair on the part of the complainant to get repair the said vehicle as early as possible submit the final repair bills, subject the said vehicle for inspection of a surveyor, then get the report for the needful. We do not find force in the allegations of the complainant that because of the non-cooperation and hostile attitude of the OP the said vehicle is lying idle at the said workshop.




    11. Hence for these reasons we find as the dispute is with regard to the payment of 75% of the so called estimated repair costs, if complainant minds they can sort out that dispute amicably with OP. As already observed by us, OP has turned down the demand of the complainant to release 75% of revised estimation and it is prepared to pay 75% of the interim report given by the surveyor. Under such circumstances we find the justice will be met by directing the complainant to collect the interim payment and see their vehicle is repaired as early as possible, then make the final claim. With these observations we answer point nos.1 and 2 accordingly and proceed to pass the following: O R D E R The complaint is allowed in part. OP is directed to release Rs.5,55,000/- to the M/s. Jaika Automobiles as interim settlement of the claim and settle the whole claim after the impugned vehicle is completely repaired and made road worthy. It is further ordered that vehicle be subjected to the inspection/examination of the technically qualified surveyor. On the receipt of his report and final repair bills settle the claim as per policy terms and conditions. In view of the nature of dispute no order as to costs. This order is to be complied within 2 months from the date of its communication.
  • adminadmin Administrator
    edited September 2009
    V.Ramadevi
    W/o R.Parameshwaran,
    A/a 40 yrs, R/o C/o T.Manjunath,
    No.3, 7th Main, 13th Cross,
    J.P.Nagar, I Phase,
    Bangalore – 560 078.
    …. Complainant.
    V/s

    The Oriental Insurance Company Limited,
    Regional Office, Leo Shopping Complex,
    Residency Road Cross, Bangalore – 560 026
    Rept. By its regional Manager,

    …. Opposite Party
    -: ORDER:-
    This complaint is for a direction to the Opposite Party to pay damages of Rs.1,50,000/- with interest at 18% Per Annum from the date of accident till the date of payment on the following grounds:-
    The complainant who is the owner of TATA ACE goods carrying vehicle bearing No.KA-08-2756 had got the same insured with Opposite Party for the period from 04/08/2007 to 03/08/2008 covering the risk for a sum of Rs.2,00,000/-. On 25/10/2007 when the said vehicle driven by its driver Sri.Harish was going towards Bangarpet Town from Kolar, at about 5.00 p.m. near DIMBA Gate there was a head on collusion between the said vehicle and a goods Tempo bearing No.KA-03-A-2609. As a result, the vehicle in question was extensively damaged beyond repairs. The accident was immediately reported to the Opposite Party, who inspected the vehicle and advised to tow the vehicle to the authorized showroom. Accordingly the vehicle was towed to Prerana Motors, Bangalore. After repairs, the vehicle was inspected by the surveyor and officials of the Opposite Party who collected all the necessary police documents, driving license and the bills from the complainant. The damage to the vehicle was estimated at Rs.1,50,000/- and the complainant paid the same. After submitting all the relevant documents to the Opposite party for reimbursement of the damage charges, she received the letter dated:23/09/2008 intimating that her claim has been repudiated as the driver had no valid driving license at the time of accident. The driver had driving license to drive light motor vehicle and there is no need or necessity to take separate license to drive the TATA ACE goods carrier which is a L.G.V. The laden weight of the vehicle is 1,555 KGs and un-laden weight is 805 KGs. and the vehicle is classified as L.G.V. The complainant has purchased the vehicle by taking hand loans from her friends and relatives to earn her livelihood. Hence, the complaint.



    2. In the version, the contention of the Opposite Party is as under:-


    The vehicle in question which is light commercial vehicle was insured for the period from 04/08/2007 to 03/08/2008. The policy is subject to various terms, conditions, exceptions, limitations and the legal liability of the insurer is governed by the provisions of the policy of insurance. The intimation regarding the accident was given to the Opposite Party on 12/11/2007. Soon thereafter the claim form was issued and the same was submitted by the complainant along with the quotation towards repairs. A surveyor was deputed to inspect the vehicle and he submitted the report on 09/11/2007. On receipt of the surveyor report, the complainant was called upon to furnish the vehicle document like RC, DL, and FC for verification and the same were submitted only on 31/05/2008 by the financier of the complainant. After verification of the documents submitted by the complainant and considering the surveyor report, the claim of the complainant was repudiated as per the letter dated:23/09/2008. The contention of the complainant in Para-3 of the complaint that the driver had driving license to drive the light motor vehicle and there is no need or necessity to take a separate driving license to drive the TATA ASC goods carrier is totally false and based on assumptions. The complainant had failed to furnish the driving license of the driver. Therefore they had to obtain the same by appointing an investigator. The driver had no driving license to drive the insured vehicle which is a goods carrying commercial vehicle. The claim was repudiated on the ground that the driver who was driving the vehicle at the time of accident was not having an effective and valid driving license. The driver had a license to drive Light Motor Vehicle (N/T) w.e.f. 25/01/2002 to 24/01/2022. A license to drive transport vehicle is effective only for three years. The insured vehicle being a goods carrying commercial vehicle, the driver of the complainant ought to have obtained an endorsement in the license to drive the insured vehicle. In the circumstances, the repudiation of the claim will not amount to deficiency in service on the part of the Opposite Party and as such the complaint is liable to be dismissed.


    3.In support of the respective contention, both parties have filed affidavits and have produced documents. We have heard the arguments on both side.


    4. The points for consideration are:-
    1.Whether in the facts and circumstances of the case, the repudiation of the claim of the complainant by the Opposite Party is justified?
    2.Whether the complainant entitled to the relief prayed for in the complaint?
    05. Our finds are:-
    Point No(1) : In the Affirmative
    Point No(2) : In the Negative, for the
    Following:-
    -: REASONS:-


    06. In Para-2 of the complaint, the complainant herself has admitted that the vehicle in question is a goods carrying vehicle. From what is stated in Para-3 of the complaint it is also clear that Mr.Harish who was driving the vehicle in question at the time of accident had the driving license to drive the Light Motor Vehicle. Therefore, he had no license to drive a transport vehicle or a goods carrying commercial vehicle. According to the complainant since the vehicle in question is also a Light Motor Vehicle as its laden weight is 1,555 KGs and the un-laden weight is 805 KGs, there was no necessity for the driver to obtain separate license to drive a goods carrying vehicle which is a light goods vehicle. No doubt in the ‘B’ register extract pertaining to the vehicle in question, the laden weight of the vehicle is recorded as 1555 KGs and the un-laden weight is recorded as 805 KGs and therefore the vehicle falls within the description of Light Motor Vehicle. When admittedly the vehicle is a transport vehicle meant for carrying the goods, the question is whether a person holding license to drive Light Motor Vehicle is also entitled to drive a Transport Vehicle or goods carrying vehicle?. To substantiate the contention that a person holding license to drive Light Motor Vehicle is entitled to drive a Transport vehicle if the same is Light Motor Vehicle, the learned counsel for the complainant relied upon the decision reported IN 2008 ACJ 721 IN THE CASE OF NATIONAL INSURANCE COMPANY LIMITED V/S ANNAPPA IRAPPA NESARIA decided on 22/01/2008. That was also a case where, a person having license to drive Light Motor Vehicle, had driven a goods carrying vehicle, which met with an accident on 09/02/1999. Considering the amendment of clause-e of Rule-14 of the Central Motor Vehicle rules w.e.f. 28/03/2001 the Hon’ble Supreme Court held that after the amendment, the transport vehicle has now been substituted for medium goods vehicle and heavy goods vehicle, the Light Motor Vehicle continued at the relevant point of time to cover both light passenger carriage vehicle and light goods carriage vehicle and since the amendment carried out in the rules have prospective operation the driver who had a valid license to drive a Light Motor Vehicle was authorized to drive a light goods vehicle as well.

    Relying upon the above decision, the learned counsel for the complainant submitted that though the driver of the vehicle in question had license to drive a Light Motor Vehicle as on the date of the accident, since the vehicle in question is also a Light Motor vehicle though a goods carriage the driver was entitled and authorized to drive such type of vehicle and as such the repudiation of the claim by the Opposite Party is not justified. As against this, the learned counsel for the Opposite Party relied upon the decision of the Hon’ble Supreme Court in Civil Appeal No1102/2009 in the case of ORIENTAL INSURANCE COMPNAY LIMITED V/S ANGAD KOL & ORS. decided on 18/02/2009 and contended that unless the driver is specifically authorized by an endorsement in the driving license to drive a transport vehicle or goods carriage, he cannot drive such type of vehicle only holding license to drive Light Motor Vehicle.

    In the above decision referring to the provisions of Section 3, 9 & 10 of the Motor Vehicle’s Act, the Hon’ble Supreme Court has held that the distinction between a Light Motor Vehicle and Transport Vehicle is therefore evident, a transport vehicle may be Light Motor Vehicle, but for the purpose of driving the same a distinct licence is required to be obtained. In the above decision, the Hon’ble Supreme Court has also considered the decision in the case of NATIONAL INSURANCE COMPANY LIMITED V/S ANNAPPA IRAPPA NESARIA (2008 ACJ 721) relied upon by the learned counsel for the complainant and has held that a person having driving license to drive Light Motor Vehicle only is not entitled to drive light passenger carriage vehicle and light goods carriage vehicle, unless he is specifically authorized to drive such type of vehicle.

    In the decision reported in AIR-20008 S.C. 2266 in the case of NEW INDIA ASSURANCE COMPANY LIMITED V/S ROSHANBEN RAHEMANSHA FAKIR AND ANOTHER decided on 121/05/2008 also the Hon’ble Supreme Court has taken the same view. Therefore, in view of the latest decision of the Hon’ble Supreme court referred to above, we have to uphold the contention of the learned counsel for the Opposite Party that the driver of the vehicle in question had only license to drive Light Motor Vehicle and therefore he was not authorized to drive a goods carriage transport vehicle and as such the insured has committed breach of the terms and conditions of the insurance policy and therefore the Opposite Party is not liable to reimburse the repair charges to the complainant.


    In the above circumstances, we hold that the repudiation of the claim by the Opposite Party is justified and the same will not amount to deficiency in service and as such the complainant is not entitled to the relief prayed for. In the result, we pass the following:-
    -:ORDER:-
    • The complaint is DISMISSED. No order as to costs.
  • adminadmin Administrator
    edited September 2009
    COMPLAINT NO: 2723 OF 2008 M. Narayan S/o. Late Muniswamy Naidu The Proprietor M/s. Prabhu Engineering Works No. 425, 11th Cross, 4th Phase Peenya Industrial Area Bangalore 560 058 Complainant


    V/S


    United India Insurance Co. Ltd. No. 109, SSI Area, Rajajinagar 5th Block Next to Dasashram and Opp. St. Ann’s High School Dr. Rajkumar Road Bangalore 560 010 by its Branch Manager Opposite Party ORDER By the President Sri. S.S. Nagarale

    This is a complaint filed under section 12 of the Consumer Protection Act 1986. The facts of the case are that complainant is owner of Maruthi Omni Van bearing Registration No. KA 02 MB 7029. Vehicle was insured with the opposite party. The effective date of policy was from 29.05.2006 to 28.05.2007.
    It is the case of the complainant that the vehicle was stolen on the intervening night of 01.11.2006 and 02.11.2006 from his residence. Complainant’s son immediately informed Srirampura Police Station regarding the theft of vehicle. Police conducted spot mahazar. Thereafter, complainant had informed same to the opposite party over telephone. The concerned officers of the opposite party advised the complainant to lodge police complaint in the jurisdictional police station. Vehicle was not traced. Complaint was lodged on 21.12.2006. Case was registered in Crime No. 427/2006 for an offence under Sec. 379 of I.P.C. On 22.12.2006 son of complainant Prabhu informed the opposite party about lodging of police complaint. Police submitted ‘C’ report to the VII ACMM, Bangalore. Complainant submitted all necessary papers to opposite party for processing of claim. Legal notice issued to opposite party to settle the claim. Hence, the complaint.



    2. Notice issued to opposite party. Opposite party put in appearance through advocate. Defence version filed stating that the complainant has written letter to opposite party intimating theft of the vehicle on 22.12.2006 after lapse of 50 days from the date of incident. Opposite party has repudiated the claim on the ground that as per policy conditions notice shall be given to the insurer immediately upon the occurrence of loss or damage to the vehicle, failing which claim will not be processed. FIR was also lodged after lapse of 49 days. The reasons for delay are not satisfactory. Hence, claim of the complainant was repudiated by letter dated 01.02.2007.


    3. Affidavit Evidences are filed.


    4. Arguments are heard.


    5. The points for consideration are: “1. Whether repudiation of the claim by opposite party is justified? 2. Whether the complainant is entitled for the declared value of the vehicle from the opposite party?”


    6. Almost all facts are admitted. There is no dispute that the complainant had insured his vehicle with the opposite party on payment of premium amount of Rs. 3,252/-. The period of insurance was from 29.05.2006 to 28.05.2007. Copy of policy is produced. The declared value of vehicle is Rs. 1,19,000/-. The complainant has produced copy of complaint given to the police. Complaint has been lodged on 21.12.2006 to the police. Copy of FIR has been produced. Copy of ‘C’ report submitted by police has been produced. The complainant has produced letter addressed to opposite party dated 11.01.2007. The said letter has been acknowledged by opposite party on 12.01.2007 by putting seal. In the said letter the complainant has submitted that he has been out of station on the ground that his family member was admitted in AVS hospital in Kottekal, Kerala State. Therefore, he had not informed the opposite party company about the theft of vehicle at the earliest date. No doubt the theft had taken place on 01.11.2006. The police complaint had been lodged on 21.12.2006 i.e. after more than 49 days of the occurrence.

    The complainant had informed the opposite party thereafter on 11.01.2007. There is delay of more than 70 days to inform the opposite party about the incident. As per the policy condition the complainant should have given intimation to the opposite party immediately upon occurrence of loss or damage to the vehicle. The term ‘immediately’ mentioned in the policy condition has not been defined any where. The complainant submitted that there was delay in informing the incident to the opposite party on the ground that one of his family member was admitted to hospital in Kerala State for treatment and he was out of station.

    Therefore, there is delay in informing the matter to the opposite party. However, it has been argued by the learned advocate for complainant that the matter was informed to the opposite party over telephone on the next day of theft. The learned advocate also submitted that complainant’s son Prabhu immediately informed the police regarding theft of the vehicle. But there is delay in filing formal complaint to the opposite party.

    The opposite party could have condoned the delay in informing the matter and processing the claim. Since, there is no definition or specific dates are not mentioned as to when the matter should be informed of the theft, word ‘immediately’ may be interpreted depending upon the facts and circumstances of the case. Discretion is given to the opposite party company to admit the claim taking into consideration of the explanation and reasons furnished by the complainant. The complainant submitted that he was out of station and he had been to Kerala State since one of the family member was admitted to the hospital for treatment and he had gone to Kerala to lookafter the ailing member of the family.

    Therefore, there was some delay in filing complaint in writing to the opposite party company. Since almost all the facts are the admitted only point to repudiate the claim is that the complainant failed to inform the occurrence to the opposite party company immediately. As stated above since there is no definition of the word ‘immediately’ the said term can be liberally interpreted in favour of the consumer. If two opinions are possible in a given situation an opinion which is favourable to the consumer shall have to be given effect and benefits should be given to the consumer rather than to the opposite party.

    Consumer Protection Act is a social and benevolent legislation intended to protect better interests of the consumers. An interpretation which is favourable to the consumer requires to be given for doing justice to the consumer.
    Therefore, taking into consideration all the facts and circumstances of the case it would be just, fair and reasonable to direct the opposite party company to pay Rs. 1,19,000/- Declared value of the vehicle to the complainant.



    ORDER


    7. The Complaint is allowed. The opposite party is directed to pay Rs. 1,19,000/- (IDV) to the complainant within 30 days from the date of this order. In the event of non-compliance of the order within 30 days the above amount carries interest at 10% p.a. from the date of this order till payment / realization. 8. Send the copy of this Order to both the parties free of costs immediately.
  • adminadmin Administrator
    edited September 2009
    COMPLAINT NO: 425 OF 2009 T. Gopalkrishna S/o. Late Thimmaiah 3/1, EAT Street, Gandhibazar Bangalore 560 004 Complainant

    V/S

    The Oriental Insurance Co. Ltd. By its Senior Branch Manager DBO 14, 19/1, I Floor, 3rd Cross Chikkannagarden, Shankarmutt Road Bangalore 560 004 Opposite Party

    ORDER By the President Sri. S.S. Nagarale

    This is a complaint filed under section 12 of the Consumer Protection Act. The facts of the case are that complainant is the owner of vehicle TVS Super XL model bearing No. KA 05 EM 6878 purchased on 11.04.2003 for Rs. 19,538/-. Vehicle was insured with the opposite party. It is the case of the complainant that on 22.04.2008 he had parked his vehicle in front of his house duly locked at 5.30 p.m. He came out of the house around 7.00 p.m. to go to his work place and noticed that vehicle was missing. Complainant made efforts to search the vehicle, but in vein. Thereafter he lodged police complaint with Basavanagudi police. FIR was filed. Police subsequently filed ‘C’ Report. Complainant made claim with the opposite party and claimed Rs. 10,000/-. Opposite party rejected the claim on the ground that he has not locked the vehicle, which is not correct.

    Thereafter, complainant got issued legal notice through advocate. In respect of notice once again the opposite party rejected the claim. Vehicle was insured with opposite party and insurance policy was inforce during the relevant period. It is the duty of the opposite party to make good loss suffered by the complainant as per the terms of the policy. Hence, the complaint.


    2. Notice issued to opposite party through RPAD. The notice duly served. When the case was set for appearance of opposite party on 18.03.2009 the opposite party did not appear before this forum. Therefore, the opposite party was placed exparte. Opposite party even has not sent defence version by post.



    3. The complainant has filed affidavit evidence and arguments of the learned advocate for the complainant heard. I have gone through the complaint and documents.


    4. The complainant has produced copy of policy. The declared value of the vehicle is Rs. 10,000/-. The complainant has produced motor claim form. He has produced copy of complaint given to the police. The said police complaint has been registered in crime No. 73/08 under section 379 of Indian Penal Code. The complainant has produced first information report. The police after investigation submitted ‘C’ Report to the court.
    Copy of ‘C’ Report of police is also produced.
    The complainant has produced letter of the opposite party dated 05.12.2008. It is stated in the letter that vehicle was not locked at the time of the theft. Therefore, there was negligence on the part of complainant which is not covered under policy and claim intimation is also given to the office after one month. Therefore, the claim was repudiated. The complainant has produced copy of legal notice served to the opposite party. Complainant has produced another letter of opposite party dated 13.01.2009. In the said letter again opposite party stated that vehicle was not locked at the relevant point of time and therefore, claim was repudiated.
    The complainant in his affidavit has clearly stated that vehicle was duly locked and the theft occurred and the vehicle was parked outside of his house. The complainant clearly stated in the affidavit that the vehicle was locked. The sentence written in the complaint that ‘vehicle not locked’ was tampered and later on it was inserted. By looking to the copy of the complaint, it is clearly visible that ‘vehicle was not locked’ appears to be inserted later on. Therefore, the submission of the learned advocate for the complainant that there was manipulation or tampering of the complaint requires to be accepted. The only defence taken by the opposite party is that vehicle was not locked.
    Therefore, the opposite party liable to pay the claim amount. But in order to prove or establish the fact that the vehicle was not locked there is absolutely no evidence or any proof on behalf of the opposite party. Admittedly, opposite party has no evidence to prove that the vehicle was not locked by the complainant when the theft took place. Therefore, the affidavit evidence given by the complainant has not been challenged shall have to be accepted. There is no defence version on behalf of opposite party.

    The case made out by the complainant and affidavit filed by the complainant has gone unchallenged. There is nothing to disbelieve the case put up by the complainant. The opposite party even though served with notice by this forum has failed to appear and contest the matter for the best reasons known to them. It appears that opposite party has no defence to make. That is why it had chosen to remain absent.
    The facts and evidence stated by the complainant shall have to be accepted as true and correct since there is no contrary affidavit or defence version on behalf of the opposite party. Admittedly, the complainant had taken policy from the opposite party by paying premium amount and the declared value of the vehicle is Rs. 10,000/- under the policy. The opposite party is bound to pay the IDV amount of Rs. 10,000/-.
    The complainant has to surrender the original documents i.e. RC book of the vehicle to the opposite party after receipt of the claim amount from the opposite party. Taking into consideration all the facts and circumstances of the case, the documents and argument of the learned advocate for the complainant I am of the opinion that repudiation of the claim by the opposite party is unjustified and not proper.
    The Consumer Protection Act is a social and benevolent legislation intended to protect better interests of the consumers. The opposite party shall be directed to pay the IDV to the complainant. In the result I proceed to pass the following:



    ORDER


    5. The Complaint is allowed. The opposite party is directed to pay Rs. 10,000/- Insured’s Declared Value (IDV) to the complainant within 30 days from the date of this order. In the event of non-compliance of the order within 30 days, the above amount carries interest at 12% p.a. from the date of this order till payment / realization. 6. The opposite party is also directed to pay Rs 1,000/- as costs of the present proceedings to the complainant.
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