Reliance General Insurance

Advocate.soniaAdvocate.sonia Senior Member
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

Complaint No. 477/10.8.2007.

Date of order: 5.3.2009.



Baldev Singh son of Sh. Kehar Singh, resident of V.P.O. Sahauli, Tehsil & Distt. Ludhiana.

(Complainant)

Vs.



1. Reliance General Insurance Company Limited, Regional Office SCO No.212-214, Sector 34-A, Chandigarh, through its Regional Manager.



2. The Reliance General Insurance Company Limited, Office at 7th Floor, Surya Tower 108, The Mall, Ludhiana.

(Opposite parties)



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

…..



Quorum:

Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar, Member.



Present:

Sh. Baljit Sharma Advocate for the complainant.

Sh. Rajiv Abhi Advocate for opposite party.



O R D E R

T.N. VAIDYA, PRESIDENT:

1. Claim qua theft of insured motor cycle bearing temporary no. PB-10-BJ-(Temp) 08-5332, vide cover note no.1121633 dated 30.11.2006, was repudiated by opposite party vide letter dated 8.5.2007. Consequently, this complaint under section 12 of the Consumer Protection Act, 1986, assailing repudiation to be wrong, null, void and illegal.

2. Case of the complainant briefly stated is that had purchased the aforesaid motor cycle on 30.11.2006 for Rs. 30,222/- and got the same insured on the same day with the opposite party. On the day of purchase i.e. 30.11.2006, brother of the complainant Sh. Sukhdev Singh went to the fields on the insured motor cycle and parked it adjoining to the fields. After switching off the electric motor installed in the fields, he came back to the spot where the motor cycle was parked and found the same missing. Motor cycle was stolen by somebody which could not be traced despite efforts. FIR No. 94 dated 1.12.2006 under section 379 IPC in P.S. Sudhar was registered. Opposite party was intimated qua theft and lodged the claim, who got the surveyor appointed. Surveyor assessed the loss, submitted report to the Insurance Company but opposite party wrongly and illegally vide letter dated 8.5.2007 repudiated the claim on the ground that the vehicle was unattended at the time of loss, so, it falls within the scope of condition no.4 of the policy. This is claimed to be deficiency in service and sought insurance amount of the motor cycle along with Rs.20,000/- as compensation for deficiency and Rs.5500/- as litigation costs.

3. Opposite party in their reply admitted obtaining the insurance policy from them qua motor cycle by the complainant, lodging theft claim and repudiating the same. They have justified the repudiation on the ground that complainant had not taken reasonable steps to safe guard the vehicle from the loss as he left the ignition key in the motor cycle while parking the same. Further averred that the motor cycle was insured on 30.11.2006 at 1.00 p.m. and theft had occurred on the same day at 12.00 Noon. So, motor cycle was insured after theft of the motor cycle and as such not covered under the insurance policy, which commenced after 1.00 p.m. on 30.11.2006.The claim has rightly and legally been repudiated.

4. Both the parties adduced their evidence by way of affidavits and documents.

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

6. Regarding admitted aspects of the case, we deem not necessary to burden the record.

7. It is suffice to say that the complainant had taken the insurance cover note on 30.11.2006 and on the same day lodged the claim qua theft of the motor cycle. The claim was repudiated relying on condition no.4 of the policy. Ex.R.4 is copy of the insurance policy and its condition no.4 provides as under:

“The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or break down, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk”



8. Now the question is whether the complainant or his brother taken reasonable steps to safeguard the vehicle from loss or damage. Our decision on this aspect has been eased by own admission of the complainant contained in FIR Ex.C5 (R1). FIR was lodged by Sh. Sukhdev Singh brother of the complainant, who had taken motor cycle to the fields. As per report lodged by Sh. Sukhdev Singh, he parked the motor cycle on side of the fields and forgot to take out ignition key of the motor cycle; himself went to the fields and after switching off the motor came back, found to his surprise, motor cycle having been stolen, which could not be discovered despite efforts.

9. It is as such clear from this FIR that ignition key of the motor cycle was left in the vehicle by brother of the complainant. So, it means he himself was negligent by keeping the ignition key in the vehicle and did not take reasonable steps to protect the motor cycle from being stolen, nor he took reasonable steps to safe guard it.

10. Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission, Raipur in case III (2006) CPJ 180 titled as Bajaj Allianz General Insurance Co. ltd. Vs. Manoj Agrawal, in such scenario in similar circumstances, where owner of the vehicle had parked it on the road without locking the same in night, which was stolen, held that complainant was negligent, so, not entitled to receive compensation and justified repudiation of the insurance claim.

11. Similarly, herein motor cycle was parked outside the fields leaving ignition key which was negligence on the part of brother of the complainant, facilitated the theft and was in breach of terms and conditions of the insurance policy, hence opposite party was justified in repudiating the claim.

12. Though the claim has not been repudiated under letter Ex.C.6 (Ex.R.5) on ground that at the time of theft, motor cycle was not insured with the opposite party. But it is a factum established on the record, as per FIR motor cycle was stolen at 12.00 noon on 30.11.2006, whereas it was insured by the complainant with the opposite party on 30.11.2006 at 1.00 p.m. as mentioned in the cover note Ex.R.3. So, it appears that insurance policy was purchased after loss or theft of the motor cycle. Theft took place at 12.00 noon and subsequently after one hour, insurance cover note at 1.00 p.m. was obtained. Where the vehicle was not insured at the time of accident, claim was held rightly rejected. Reference made to United India Insurance Company Limited & Anr. Vs. Raj Rani & Ors. Reported as II (2007) CPJ 141(Hon’ble Union Territory Consumer Disputes Redressal Commission, Chandigarh; Bhupindra Singh Vs. New India Assurance Co. Ltd. reported as IV (2005) CPJ 95 (Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission, Raipur and Anthony Rebello Vs. New India Assurance Co. Ltd. II (1996) CPJ 92 (Hon’ble National Consumer Disputes Redressal Commission, New Delhi.

13. In view of the aforesaid discussion, it is apparent that the complainant was negligent in not taking care of the vehicle, which he left unattended along with ignition key and infringed condition of the policy. Further more, he got the vehicle insured after one hour of the theft. So, in these circumstances, we feel that the complainant has no case against the opposite party. Therefore, finding no merit, we dismiss the complaint. Parties to bear their own costs. Copy of the order be supplied to the parties free of costs. File be completed and consigned to record.





Announced

Dated 5.3.2009 T.N. Vaidya, President
«13

Comments

  • adminadmin Administrator
    edited September 2009
    BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:
    VIZIANAGARAM
    (UNDER THE CONSUMER PROTECTION ACT, 1986)
    PRESENT:- SRI N.JAGANNADHA RAO, B.Sc., B.L., PRESIDENT.
    SRI P.APPALANAIDU, M.A., B.L., B.Ed., MEMBER.
    SMT P.RUKMINI, B.A., B.L., MEMBER
    WEDNESDAY, THE 04TH DAY OF MARCH, 2009
    C.C.09/08

    BETWEEN:

    M.Suryanarayanaraju,
    S/o Krishnamurthyraju,
    60 years, Business,
    R/o Perumali Village,
    Terlam Mandal,
    Vizianagaram. …….Complainant.

    And

    1. Reliance General Insurance company Limited,
    Rep., by it’s Manager, Regd., Office 3rd Floor,
    Maker Chambers, IV, 222, Nariman Point,
    Mumbai.
    2. Reliance General Insurance Company Limited,
    Rep., by it’s Branch Manager, Near R.T.C. Complex,
    Vizianagaram.
    3. The Manager,
    Road Safety Club (P) Ltd.,
    Admi Office Z-A, IInd Floor, Prakasam Road,
    T.Nagar, Chennai.
    4. The Branch Manager,
    National Insurance Co., Ltd., Annanagar Branch,
    Chennai
    Bearing policy No.500500/42/03/8200124 valid from 08-01-2005 to 07-01-2006.
    (Amended as per order in I.A. /09 dt.18-09-2008. ..…Opposite parties.

    This complaint is coming on for final hearing before us on 18-02-2009 in the presence of Sri J.Bheemasena Rao and Sri Y.Mohan Das, Advocates for complainant and of Sri B.Satyanarayana Raju, Advocate for opposite party No.1 and Opposite party No.2 called absent and remained exparte and Sri P.Seshadri, Advocate for opposite party No.3 and Sri K.Venu Gopal, Advocate for opposite party No.4 and having stood over for consideration, the Forum made the following:
    O R D E R
    1. The complainant, a resident of Perumali Village, Terlam Mandal, obtained a Group Personal Accident Master Policy through the 3rd opposite party with opposite parties 1 and 2 bearing Policy No.12-29-14-00129-05 dated 23-12-2005 and valid up to 07-01-2007 and his wife is a nominee. On 24-2-2005, the complainant along with Yelala Srinu, was proceeding on Hero Honda Motor Cycle bearing No.A.P.35 D 9172 from Perumali to Rajam and though the complainant drove the same in normal speed, a tractor bearing No.A.P.35 T 1292 came in opposite direction at high speed and dashed the motor bike and the complainant received fractured injuries to his right knee and patella, and fracture on his right shoulder besides fracture to his lower jaw and both cheeks and mandible on both sides. All injuries are grievous in nature. He became permanent disabled man. Due to lake of teeth, he could not eat any hard food and lost his biting capacity and lost his vision a bit. He could not attend his normal duties. As per the terms and conditions of the policy, the opposite parties are liable to pay compensation of Rs.2,00,000/- for permanent disability and Rs.25,000/- towards hospitalization expenses. The complainant was removed to P.V.R.hospital, Vizianagaram and from there, referred to Simhadri Hospital, Visakhapatnam, where he was inpatient for 180 days. A case in Crime No.29/05 under Sections 338, 337 of I.P.C. was registered and charge sheet against the driver of the tractor was filed in C.C.75/05. The policy was inforce from 08-01-2005 to 07-01-2006. The opposite parties did not pay the sum assured inspite of a legal notice nor give any reply. This failure to make payment amounted to deficiency in service. Hence the complaint claimed compensation of Rs.2,00,000/- towards permanent disability Rs.25,000/- towards hospitalization expenses and another sum of Rs.15,000/- towards compensation for mental agony.


    2. While the complaint is pending enquiry and in view of counter filed by the 1st opposite party the complainant impleaded the 4th opposite party, National Insurance Company as the insurer.

    3. The 1st opposite party, denying the claim of the complainant, pleaded that it is no way concerned with the claim of the complainant. It also took up a plea that as per the reply of the 3rd opposite party it is the National Insurance company which was the insurer and which was processing the claim and on that ground sought for dismissal of the complaint.

    4. The 3rd opposite party filed a counter admitting issue of policy, but pleaded that it was issued by National Insurance company and the same was in force from 08-01-2005 to 07-01-2006 and that insurance company is the necessary party. It denied in liability it is the only a felicitator in obtaining the policy from insurance company and there cannot be any deficiency in service. Hence the complaint has to be dismissed.

    5. The newly added National Insurance Company, while denying the complaint allegations pleaded that the failure to give any report to police as to the accident is against natural conduct of any ordinary person. More over, the complainant claimed to have obtained treatment at Vizianagaram for two days, but did not inform the police and only six days after the accident, the report was sent to police would show, there is something fishy in the alleged accident. It also pleaded that the dates mentioned in the first information report and the complaint are quite contrary. It is also pleaded that the complainant is not a consumer and this Forum has no jurisdiction as the dispute if any is subject jurisdiction of Chennai Court only and more over it should be decided by arbitration. It is also pleaded that the complaint itself is barred by time and there is no deficiency in service on the part of this opposite party. Hence the complaint is dismissed.

    6. At the time of enquiry both parties filed affidavits in support of their contentions and marked Ex.A.1 to A.10 and Ex.B.1 to B.4 and both the counsels were heard who reiterated their respective contentions.

    7. It is the contention of the counsel for the complainant that the issue of policy not being in dispute, the evidence filed by him would show that there was an accident wherein the complainant sustained grievous injuries, the opposite parties are bound to pay the policy amount to the complainant and its failure to do so is nothing but deficiency in service. More over, he contended, the claim is in time, as only from the date of repudiation of the claim, the limitation starts run to. He relied upon a decision in Ganeshwar Mohanty Vs. Divisional Engineer, The New India Assurance co., Ltd., a& Anr 1995(1) CPR page 65, wherein it was held that the complaint within three years of repudiation of claim is maintainable. He pleaded that Ex.A.10 disability certificate would show permanent disability sustained by the complainant.

    8. It is the contention of the counsel for opposite parties 1 and 2 that it did not issue any policy to the complainant covering the accident period. More over, it is contended by the counsel that there is no office of opposite party No.1 at Vizianagaram and so notice was rightly returned with such endorsement. He pointed out that this Forum has no territorial jurisdiction. He ultimately contended that at any rate, the liability if any, would be on opposite party No.4 only. The counsel for opposite party No.3 Road Safety Club naturally took up a plea that it is only a felicitator in obtaining the insurance policy and forward the claim to the concerned insurance company and it does not have any liability.

    9. The counsel for opposite party No.4 is opposing the claim on two grounds. Firstly, that the claim is barred by time which was made three years after incident. He pointed out that inspite of specific plea by the 3rd opposites party that it is the 4th opposite party only which was the insurer, the complainant did not take proper step to impleade this opposite party and even by the date of its impleading the claim is barred by time. He also urged that it was never issued any notice by the complainant and so question of repudiation did not arise. The 2nd ground urged by the opposite party No.4 is with the nature of injury sustained by the complainant, do not come under the terms and conditions of the policy enumerated therein and hence it cannot be mulcted any liability. It is also its contention that this Forum has no territorial jurisdiction as the terms of the policy would in fact show that dispute, if any, would be subject to the jurisdiction of Chennai Court.

    10. In view of the above contentions arises by both sides the following points that would arise for determination in this complaint is:
    1. Whether this Forum has got territorial jurisdiction to settle the claim?
    2. Whether the claim is barred by limitation?
    3. Whether there is any deficiency in service on the part of the opposite parties
    and the complainant is entitled for the claim made?

    11. POINT No.1:- This claim based on Personal Accident Master Policy the complainant is no doubt resident of Vizianagaram District the claim is against three opposite parties originally. The 3rd opposite party is Road Safety Club, with head quarters at Chennai. The opposite party No.1 is Reliance General Insurance Company with heard quarters at Bombay. Though the 2nd opposite party is shown as Reliance General Insurance with Branch at Vizianagaram, it turned out that there is no such branch at any time, and in fact notice sent by this Forum. was returned unserved with endorsement that there is no such office at all. The 4th opposite party National Insurance Company, which actually issued the policy is at Chennai. Apart from this, the accident occurred near Rajam which is undisputedly in neighbouring Srikakulam District. Thus except the residence of the complainant, none of the opposite parties are shown to be within the jurisdiction of this Forum. Evidently, non existing the 2nd opposite party was shown in the complaint with head quarters at Vizianagaram, only to claim jurisdiction under this Forum. Thus none of the opposite parties nor any part of cause of action has arisen within the jurisdiction of this Forum and we hold that this Forum has no territorial jurisdiction to entertain the complainant. Accordingly this point is answered against the complainant.

    12. POINT No.2:- The next and most important plea raised by the 4th opposite party, which is the insurer is that the claim is barred by time. Though there is some discrepancy in the pleading as to the date when the policy was issued and accident occurred as can be seen from ex.B.4 insurance certificate filed by the 4th opposite party, it was issued on 24-12-2004 covering a period of insurance from 08-01-2005 to 07-01-2006. The accident occurred on 24-02-2005. Thus, by the time of accident, the policy is in force. However, inspite of specific plea by opposite party No.3 the Road Safety Club that it is the National Insurance Company which issued policy to the complainant by giving reply to the legal notice Ex.A.9 on 31-08-2007 and reiterating the same plea even in the counter filed on 06-06-2008, the complainant kept quite and only on 24-09-2008, took steps for impleading opposite party No.4 and the petition was allowed on 18-09-2008. As a matter of fact, the complaint itself was filed on 13-02-2008 i.e., beyond two years from the date of accident on 24-02-2005 which gave cause of action for this claim. Even the legal notice issued on 28-08-2007 was also beyond two years period of limitation. There is no application even, by the complainant, pleading for condonation of delay by the Forum, as provided under Section 24 (A) (2) of the Act prescribing two years limitation period for any claim with power to the Forum for condoning the delay recording its reasons. Thus the claim against opposite party No.4, insurance company, which has to answer the claim is clearly barred by time.

    13. The learned counsel for complainant tried to contend that the claim can be made within three years from the time of repudiation of the claim by the insurance company and even cited an authority in Ganeshwar Mohanty Vs. Divisional Engineer, The New India Assurance Co.Ltd. & anr., 1995 (1) CPR page 65 (Cuttack). But apart from the fact that this decision was rendered on 03-04-1993 by the Orissa State Commission prior to insertion of section 24 (A) which came into force on 18-06-1993, prescribing limitation period there was never any claim made with proper insurer i.e., opposite party No.4 and question of repudiation by it did not arise at all. As already noted, inspite of the fact that opposite party No.3 the Road Safety Club in its reply notice, Ex.A.9, dated 31-08-2007 itself has specifically informed the complainant that it is opposite party No.4 which is the insurer to whom the claim forms were transmitted, the complaint was filed without impleading the 4th opposite party and application was filed to impleade it only on 29-08-2008, during enquiry, at the stage when parties filed documents in support of their respective contentions. Thus in any view of the matter the decision relied upon by the counsel for the complainant will not be of any help to substantiate his contention. Though the counsel also cited another authority in Maya Devi Vs. Life Insurance Corpn., of India 2008 (3) A.P.L.J. 1 (CC) (NC), in our view the question involved in that decision is not at all relevant to the dispute on hand.

    14. In the light of the above discussion we hold that the claim is barred by time.

    15. POINT No.3:- The issue of policy in favour fo the complainant by opposite party No.4 insurance company not being in dispute,
    the next question that would arise would be whether the complainant sustained injuries in accident and the denial to settle his claim as per terms of the policy, by the opposite parties amounts to deficiency in service has to be considered. The opposite parties 1 and 2 are not insurers and opposite party No.3 is only felicitator in obtaining the insurance policy by the complainant and they cannot be mulcted with any liability in satisfying the claim. It is only opposite party No.4 being insurer would be liable to settle the claim.

    16. It is contended that there was no accident at all and the extraordinary delay in giving report would show that there is something fishy and the complainant came up with a false claim. No doubt Ex.A.3, first information report, was registered six days after the incident that too while he was undergoing treatment in Simhadri Hospital, Visakhapatnam. Though the complainant’s claim that he was treated at Vizianagaram in the first instance, there is no material to support it. The first information report was registered on the statement recorded by Rajam policy at Simhadri Hospital, Visakhapatnam. But the fact remains that the case was registered against the tractor driver and the Motor Vehicle Inspector inspected the tractor, though he did not find any damage to it. In our view by this reason only the plea of the complainant that he met with an accident while going on the motor bike cannot be and need not be disbelieved. Evidently, due to ignorance and in the anxiety to render medical assistance to the complainant, the report to police was not given immediately. Hence we are unable to accept the plea of the insurance company that there is no accident at all.

    17. With regard to the injuries sustained by the complainant and the disability caused to him Ex.A.5 the medical record issued by Simhadri Hospital would show that he sustained grievous injuriries on right knee, right patella, fracture of mandible on both sides, besides a lacerated wound of right shoulder. Surprisingly it does not show that there was any loss of teeth as claimed by the complainant. Similarly the plea of the complainant that he underwent treatment for six months in that hospital was not supported by any evidence. So the limited evidence placed by the complainant is that he suffered fractured injury on his right nee, right patella and mandible fracture on both sides of cheeks in that accident and that injury was grievous in nature.

    18. Apart from the above evidence, the complainant filed disability certificate issued by Medical Board and to prove it affidavit of Dr.K.V.Murali Mohan who was one of the signatories of Ex.A.10 disability certificate was filed. The affidavit and the certificate would show old fractured injury on his right patilla and mandible double fractures on both sides of cheeks and the disability was assessed at 25%. This medical evidence could not be seriously challenged by the opposite party.

    19. However, the insurance company took up a stand at that the injury sustained by the complainant was not covered by ex.B.1 policy wherein different types of injuries and extent of its disabilities were enumerated. Evidently it is a permanent partial disability. Though (on the reverse of) in the policy Ex.B.1 the injuries were specifically enumerated and the injuries sustained by the complainant was not covered, (Clause 12 at page 13 specifically mentions that any other permanent partial disability, percentage of such disability as assessed by the Doctor is also covered). By virtue of this Clause, the contention of counsel for insurance company that the policy does not cover this injury cannot be accepted. As per the Doctor’s assessment it is 25% disability that was caused. This scope of coverage as per the policy is for permanent partial disablement, sum insured was Rs.2,00,000/- and it being 25% partial disablement, the complainant would be entitle for Rs.50,000/- policy amount.

    20. Though the complainant claimed Rs.25,000/- as hospitalization charges. Evidently, there is absolutely no evidence that to be placed by him to show that he was hospitalized and treated as inpatient anywhere. That being the case, on that count the complainant is not entitled for any amount. With regard to the claim for compensation of mental agony at Rs.15,000/- it being a claim for payment of policy amount covered in the accidental insurance question of granting compensation for mental agony separately does not arise. More over, there was never any claim against opposite party No.4 at any time and consequently there is no petition by it which can be said to be unjust. On that ground also the claim for compensation for mental agony cannot be sustained. Thus in all the complainant would be entitled for Rs.50,000/- being 25% of policy amount that too from opposite party No.4 only which shall be payable within 30 days and any failure of its with interest at 9% per annum from the date of this Order till the date of payment. However, in view of our finding on points one and two that this Forum has no territorial jurisdiction and that claim is barred by time, no order for payment by opposite party No.4 can be made by this Forum. Accordingly this point is answered.

    21. In the result, the complaint is dismissed on the ground of limitation. Each party to bear their respective costs. Advocate fee is fixed at Rs.1,000/- (Rupees one thousand only).
  • adminadmin Administrator
    edited September 2009
    C.C.No.111/2008
    Between
    Kancherla Chengalraya Naidu,
    S/o. Krishnama Naidu,
    Hindu, aged 53 years,
    Residing at Mittameeda Kandriga,
    (M.M. Kandriga) Panakam Post,
    Tirupati Rural Mandal, Chittoor District … Complainant

    And
    1. M/s. Reliance General Insurance Co. Ltd.,
    Rep. by its Branch Manager,
    19-6-27, 2nd Floor, D.R. Mahal Road,
    Tirupati.

    2. M/s. Reliance General Insurance Co. Ltd.,
    Rep. by its General Manager,
    570, Naigaum Cross Road,
    Next to Royal Industrial Estate,
    Wadala (W), Mumbai – 400 031. … Opposite parties

    This complaint coming on before us for final hearing on 12.03.2009 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri. G. Ramaiah Pillai, counsel for the complainant and the Sri S.M. Jhan, counsel for the opposite party No.1 and opposite party No.2 having been called absent and having stood over till this day for consideration, the Forum made the following:-
    ORDER
    DELIVERED BY Smt. T. SUJATHA DEVI, MEMBER
    ON BEHALF OF THE BENCH
    This complaint is filed under Sections 12 and 14 of Consumer Protection Act, 1986 to direct the opposite parties to reimburse the repair charges incurred for the amount of Rs.2,40,569/-, to pay compensation of Rs.2,00,000/- for causing mental agony and also to pay Rs.2,000/- towards legal expenses.
    2. The averments of the complaint in brief are as follows : The complainant states that he is an unemployed person and in order to sustain his livelihood, he purchased JCB 3DX Diesel by availing financial loan from Sri Infra Structure Finance Limited, Mahalakshmi, No.290, Peters Road, Gopalapuram, Chennai, Tamilnadu on hire purchase hypothecation agreement for Rs.20,82,470/-. The vehicle was duly registered with registering authority by RTA Tirupati on 14.12.2007 bearing No. AP 03-AC-7764. The vehicle was also duly insured with the opposite parties and a policy No.1811782343001757 was issued in favour of the complainant for the insured declared value (IDV) for Rs.20,82,470/- on payment of premium of Rs.25,706/- covering the risk for the period from 24.04.2008 to 23.04.2009 for third party liabilities. The driver by name K. Suresh Babu was appointed to operate the vehicle and he was having valid driving license to drive the vehicle and not disqualified for holding or obtaining such license. His license No. is DLRAP204115772007 for the transport HTV-LMV with validity upto 29.07.2010. The vehicle is being managed by S. Madhu, son-in-law of the complainant.
    On 30.04.2008 at 2.30 a.m., the vehicle on the way to Kadapa involved in road accident in Krishnapuram village of Kadapa District and thereby sustained damages to the vehicle due to hit against a tree by the road side in order to avoid collusion with one RTC bus which comes in opposite direction without any caution resulting lost control over his vehicle by the driver. Immediately he reported the accident to the nearest police station, Chinthakomma Dinne (CK Dinne) of Kadapa District who enquired into the incident and made entry in the general diary. As the accident was due to negligence of the driver, he compounded the offence under Sec.183 and 184 of M.V. Act and paid Rs.300/- on 01.05.2008 under challan No.852402 of Book No.17049. A police certificate was also issued to that effect by the Inspector of Police, Kadapa Rural. Hence there was no FIR as no cognizable offence took place for which investigation is not required. The fact of incident was also informed to the opposite party No.1 and also to the General Manager, M/s. Reliance General Insurance, Hyderabad and also the Claims manager of the said Reliance General Insurance Company of Hyderabad for the purpose of assessing the loss to the vehicle on the same date. As a matter of fact one surveyor by name T. Gangadhara Prasad visited the accident place and performed spot survey. He furnished a copy of the report to the complainant and permitted him to give the vehicle for its repairs by the authorized dealer. The complainant carried out the repairs to the damaged vehicle under the said accident through the competent dealers (Gold Fields) and Help Line Sales and Services of Kadapa. As per invoices the total claim comes to Rs.2,40,569/- towards its repairs and replacement of parts. He submitted his claim along with supported vouchers by enclosing motor claim form which they undertake to fill the columns and keeping reliance with the opposite parties, the complainant signed in the blank form accordingly. As there was no response for his repeated oral demands to the opposite parties concerned and out of frustration he got issued a legal notice to the opposite party No.1 and others on 01.08.2008 for settlement within 7 days. Even the legal notice served no purpose and it remained a futile exercise and no result yielded. Hence, the complaint for deficiency in service on the part of the opposite parties for not discharging their liability under the terms of the policy which amount to unfair trade practice for which the complainant claims damages etc. Hence, the complaint.
    3. The opposite party No.1 filed counter denying most of the allegations made in the complaint and stated as follows:- That the complainant never approached the opposite party and made his claim as per the terms and conditions of the policy entered with this opposite party. The foremost important clause of the policy is that once the insured’s vehicle is got theft or got damage, it is the duty cast upon the complainant to intimate the said fact to the insurer of his vehicle within 48 hours from the time of the said incident, but the complainant has not taken any steps to intimate or inform the same to this opposite party. The complainant has no piece of evidence to show that he has made his efforts in intimating the same to this opposite party about the incident of accident of the vehicle, except causing of notice on 01.08.2008. In turn, he thrown the blame against the opposite party simply saying that the opposite party has not settled his claim. This opposite party only came to know about the incident on 01.08.2008 when the complainant issued a legal notice against this opposite party and it clearly shows that the complainant alone made deficiency in intimating the same to this opposite party. That the complainant further alleged that he issued a legal notice on 01.08.2008 calling upon the opposite party to settle the claim apart from damages in deficiency in service and for causing physical and mental suffering and also alleged that this opposite party gave false and evasive replies are not at all true and correct. It is only the complainant had never discharged his duties in right way in right time and hence there in no any deficiency in service rendered to the complainant by this opposite party. It is therefore, prayed the Hon’ble Forum may be pleased to dismiss the complaint with exemplary costs.
    The opposite party No.1 also filed additional counter sating as follows : This opposite party categorically states that there was no existence of policy as on the actual date of alleged incident submitted by the applicant. The applicant has not lodged any complaint before the police of C.K. Dinne, Kadapa District and no first information was registered regarding the alleged incident. Hence, this opposite party denies the entire allegations of the complaint. This opposite party categorically states that this opposite party has deputed one Southern Claims Consultants, Hyderabad to investigate regarding the alleged incident and after thorough investigation they pointed out that the insured K. Chengalraya Naidu renewed the policy only after the alleged incident, i.e., on 24.04.2008 and it also revealed in the investigation that the vehicle of the insured was kept for repair before Gold Fields, authorized service for JCB products, Kadapa wherein the insured has paid advance amount for spare parts for the said vehicle to a sum of Rs.49,000/- on 19.04.2008. As per the contention of the complainant, the alleged incident was occurred on 30.04.2008 at about 2.30 a.m. This opposite party categorically states that there is no any eye witness to the occurrence of the alleged incident and there is no any documentary proof to show that the accident was occurred on 30.04.2008 and that the alleged copy of police certificate dt.01.05.2008 issued by Inspector of Police, Kadapa Rural about the receipt of complaint is not true and correct and it is got up document and more so the entire allegations and the alleged claim is clearly shows as suspicious one and the complainant filed the above complaint only to have wrongful gain. Hence no claim can be liable to pay to the applicant by his opposite party in view of the non-existence of policy as on the date of accident. That it is categorically states that it has recorded the statements of insured K. Chengalraya Naidu and verification of cash book of Gold Field Showroom situated at Chinna Chowk, Kadapa for confirmation of insured giving advance amount for the spare parts and the bills containing in the said firm under Sl.No.17 to 23 clearly shows that the incident was occurred before existence of the policy and on enquiry made by the investigating authority on the alleged spot of occurrence of the alleged incident, nobody informed or nobody knows about the alleged incident. The documents filed by the applicant are all got up for the purpose of the above claim only. The opposite party further stated that the applicant also addressed a letter dated 02.05.2008 to the Gold Fields, Kadapa requesting them to adjust the amount of Rs.49,000/- which was paid on 19.04.2008 for the purpose of requirement of 0.3 Cu Mt bucket and oils, under receipt No.20 and it clearly shows that the alleged incident was not at all happened on the alleged date of incident and all the alleged documents are invented and got up by playing fraud and to extract money from the opposite parties. It is therefore, prayed that this Hon’ble Forum may be pleased to dismiss this complaint with exemplary costs.
    4. On behalf of the complainant Exs.A1 to A9 are marked. The complainant also submitted written arguments.
    Ex.A1 is the Xerox copy of Certificate of Registration bearing No. AP 03 AC
    7764 Fork Lift LMV in favour of the complainant , dt. 14.12.2007
    Ex.A2 is the original vehicle package policy of Reliance General Insurance Co.
    Ltd., No.1811782343001757, dt.26.04.2008
    Ex.A3 is the Xerox copy of driving licence DLRAP 204115772007 of K. Suresh
    Babu, Dt. 06.08.2007
    Ex.A4 is the original police certificate issued by the Inspector of Police, Kadapa
    Rural about the receipt of complaint regarding accident of the vehicle on
    30.04.2008, dt. 01.05.2008
    Ex.A5 is the original challan and receipt for compounding of offence under Sec.
    183 M.V. Act for Rs.300/-, dt.01.05.2008
    Ex.A6 is the Xerox copy of Motor Spot Survey Report, dt. 03.05.2008
    Ex.A7 is the Xerox copy of motor claim form of Reliance General Insurance Co.
    Ex.A8 is the office copy of legal notice to the opposite party No.1, dt.01.08.2008
    Ex.A9 is the postal acknowledgement from opposite party No.1.
    5. On behalf of the opposite party No.1, Ex.B1 only is marked.
    Ex.B1 is the original payment receipt bearing No.20, dt.19.04.2008 for
    Rs.49,000/- issued by Gold Fields, Kadapa. The opposite party No.1 also filed
    written arguments.
    6. The points for consideration are :
    1.[FONT=&quot] [/FONT]Whether there is deficiency of service on the part of the opposite parties and if so what amount the complainant is entitled to?
    2.[FONT=&quot] [/FONT]Whether the complainant is entitled to Rs.2,00,000/- for the mental agony suffered by him?
    3.[FONT=&quot] [/FONT]Whether the complainant is entitled to Rs.2,000/- towards the costs of the complaint?
    4.[FONT=&quot] [/FONT]To what relief?
    Point No.1:- The case of the complainant is that he is the registered owner of the vehicle JCB 3Dx Diesel bearing No. AP03V-AC-7764. It was covered under the Insurance policy of third party liability for the insured declared value of Rs.20,82,470/- on payment of premium of Rs.25,706/- commencing the risk from 24.04.2008 to 23.04.2009. While so on 30.04.2008 at 2.30 a.m., the vehicle on the way to Kadapa involved in an accident at Krishnapuram village and sustained damages due to hit against a tree by the road side in order to avoid collusion with one RTC bus which was coming in opposite direction. The driver immediately reported the accident to the nearest police station, Chinthakomma Dinne (CK Dinne) of Kadapa District who enquired into the incident and made entry in the general diary. The driver was not disqualified for holding driving licence at the time of accident. Para 6 of the complaint stated as follows: “The complainant carried out the repairs to the damaged vehicle under the said accident through the competent dealers (Gold Fields) and Help Line Sales and Services of Kadapa. As per invoices the total claim comes to Rs.2,40,569/- towards its repairs and replacement of parts. He submitted his claim along with supported vouchers by enclosing motor claim form which they undertake to fill the columns and keeping reliance with the opposite parties. The complainant signed in the blank form accordingly”. According to the complainant the incident happened on 30.04.2008. The opposite party No.1 produced Ex.B1 from Gold Fields, Kadapa that the complainant paid Rs.49,000/- as advance for parts. Ex.B1 is dated 19.04.2008. Under these circumstances, the date of incident is doubtful. The complainant in his arguments stated that the fact of incident was also informed to the opposite party No.1 and also to the General Manager, M/s. Reliance General Insurance, Hyderabad and also the Claims manager of the Reliance General Insurance Company of Hyderabad for the purpose of assessing the loss to the vehicle. It is seen from Ex.A2, “any accident to the vehicle involving injuries to / death of persons or damage to property must be immediately reported to insurance authorities using the following telephone numbers – 1800 224080 (toll free) or 022 32648888”. The complainant has not produced any documentary evidence to the satisfaction of the District Forum that he has intimated the incident to the insurer. The complainant has produced Ex.A4, i.e., Police Certificate issued by the Inspector of Police, Kadapa Rural, dt. 01.05.2008. It is seen from Ex.A4 that the driver of the vehicle reported the incident to the police and he got himself compounded from the offence by paying Rs.300/- as compounding fee to the Police. The police have not registered first information report basing on the report given by the driver of the vehicle. The complainant should have called for the G.D. from the police concerned to show that the incident happened on 30.04.2008 to the satisfaction of the District Forum. This he failed to do so. The complainant got report of T. Gangadhara Prasad, who is the alleged to have visited the place of accident and performed spot survey. He is not the person who was instructed by the opposite party to visit the spot on the accident and submit his report. Therefore, the report of the surveyor T. Gangadhara Prasad cannot be accepted as he is the person appointed by the complainant and not by the insurer. Under these circumstances, the District Forum is of the opinion that there is no deficiency of service on the part of the opposite parties and the complainant is not entitled to any amount. This point is answered accordingly in favour of the opposite parties and against the complainant.
    Point Nos.2& 3:- In view of our finding on Point No.1, the complainant is not entitled to any amount. These two points are answered accordingly.
    Point No.4.:- In the result, the complaint of the complainant is dismissed without costs.
  • 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/09/26

    Rajanna. L
    ...........Appellant(s)
    Vs.

    Reliance General Insurance Co., Ltd., & one another

    Reliance General Insurance Co., Ltd.,
    ...........Respondent(s)

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

    ORDER

    Complainant Rajanna.L., S/o Lingegowda, R/o 5th Cross, Near Govt. Primary School, Halahally, Mandya City. (By Sri.M.N.Bettappa., Advocate)

    Vs.

    Opposite Parties 1. The Manager, Reliance General Insurance Co.Ltd., 1st Floor, Mysore Trade Centre, Opp. KSRTC Bus Stand, Mysore.

    2. The Manager, Reliance General Insurance Co.Ltd., No.28, East Wing, 5th Floor, Centenary Building, M.G.Road, Bangalore-506001. (O.P.1 – EXPARTE AND By Smt. K.L.Sugandi, Advocate for O.P.2)

    Nature of complaint : Deficiency in service Date of filing of complaint : 23.01.2009 Date of appearance of O.P. : 18.02.2009 Date of order : 19.03.2009 Duration of Proceeding : 1 MONTH PRESIDENT MEMBER Sri.D.Krishnappa, President


    1. The grievance of the complainant in brief is that he is the owner of Tata Indica Car No.KA-09-N-3045 and R.C. of that vehicle stands in his name. That the vehicle has a valid insurance from 27.11.2007 to 26.11.2008. On 12.11.2008 his driver one Shashikumar was driving the vehicle at about 4.30 pm met with an accident and a criminal case has been registered in connection with this accident. That he purchased the car from one Basavaraju and got the R.C. changed to his name on 08.07.2008. After the accident he informed the same to the opposite parties whose surveyor visited the spot and then he got the vehicle repaired by spending Rs.73,010/- and submitted claim to opposite parties who have repudiated the claim on the ground that the vehicle insurance policy has not yet been got transferred from the previous owner to the name of the complainant and therefore they are unable to settle the claim. Therefore, the complainant has prayed for a direction to the opposite parties to pay Rs.73,010/- as repair charges, Rs.25,000/- towards inconvenience and hardship and Rs.1,000/- towards cost.


    2. The first opposite party who is duly served has remained absent is placed exparte. The second opposite party appeared through hisadvocate and filed version contending that insurance policy of the vehicle as on the date of the accident was still in the name of the earlier owner Basavaraju and as there is no contract of insurance between them and the complainant, they are not liable to reimburse the repair charges. After getting the R.C. transferred on 08.07.2008, the complainant ought to have got the insurance policy transferred in his name within 14 days as per the conditions of the policy, but the complainant since has not got the same transferred is not entitled for reimbursement and therefore have prayed for dismissal of the complaint.

    3. In the course of enquiry into the complaint, the complainant and the Assistant Manager of the second opposite party have filed their version reproducing what they have stated in their respective complaint and version. The complainant along with this complaint has produced the repudation letter issued by the second opposite party on 18.11.2008, copy of the FIR, and the insurance policy with the bill for having got the damaged vehicle repaired with copies of R.C. The second opposite party has produced copy of the insurance policy. Heard the counsel for the complainant and second opposite party and perused the records.

    4. On the above contentions, following points for determination arise.
    1. Whether the complainant proves that the opposite parties have caused deficiency in their service in repudiating the claim on the ground that insurance policy of the vehicle has not been transferred from the previous owner to the name of the complainant?
    2. To what relief the complainant is entitled to?

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

    REASONS

    6. Point no. 1:- As could be viewed from the contentions of both the parties, there is no controvercy with regard to the fact that the vehicle bearing No.kA-09-N-3045, which was belonging to one Basavaraju was purchased by this complainant and the R.C. of the said vehicle was transferred in the name of the complainant on 08.07.2008. But, the complainant had not got transferred the policy of the vehicle till the date of accident and therefore as on the date of the accident, the insurance policy of the vehicle was still standing in the name of the earlier owner namely Basavaraju.

    7. The claim of the complainant that the vehicle in question met with an accident on 12.11.2008 and that the complainant had informed about this accident to the opposite parties is not denied by the second opposite party. Further the claim of the complainant that he got the damaged vehicle repaired by spending Rs.73,010/- has also not been disputed by the opposite parties. The only contention raised by the second opposite party as evident from their version and affidavit is, that there was no contract of insurance between them and the complainant, as such the complainant in whose favour the policy had not been transferred as on the date of the accident, they have stated that they are not liable to reimburse that amount and thus have repudiated the claim of the complainant. Therefore, dispute between the parties boils out to the limited contention that the opposite parties have raised for reimbursing the repair expenditure of the complainant.

    8. The learned counsel appearing for the complainant by relying upon a decision of the Hon’ble High Court of Karntaka reported in 2005 (2) KCCR page 936 between Sri Veeresh Vs. Sri Siraj Ahamed and others and also a decision of the Hon’ble National Commission reported in 2007 (IV) CPJ page 289 between Sri Narayan Singh Vs. New India Assurance Company Ltd. submitted if the insurance policy had not been transferred from the previous owner to the name of the transferee, insurance company is liable to reimburse the repair expenditure and therefore submitted for a direction to the opposite parties as prayed for. Whereas the learned counsel representing the second opposite party besides her written arguments to supplement her arguments relied upon a decision reported in III (2007) CPJ page 411 NC between United India Insurance Company Ltd. and another Vs. Harindar Kaur and one more decisions one of Hon’ble Naitonal Commission reported in I (2007) CPJ page 23 and another of the Hon’ble Supreme Court reported in 2006 (V) Civil Law Journal page 548 and submitted that, if the transferee had not got the insurance policy of the purchased vehicle transferred to his name, the complainant will not be entitled for reimbursement of the repair expenditure and submitted for disposal of the complaint. The other two decisions relied upon by the learned counsel for the second opposite party have no bearing on the facts of this case. Though, in the first decision of the Hon’ble National Commission relied upon by her it is held, if the transferee had not taken the steps for transferring policy after transfer of car, transferee is not entitle to get benefit of insurance policy, but this decision has been rendered by the Hon’ble National Commission basing on the Rules of the insurance company which were applicable to that case. But in this case, the learned counsel representing the second opposite party has not brought to our notice any rule which excludes the complainant from claiming the insurance amount when he has not got the insurance transferred to his name.
    The Hon’ble National Commission in another decision reported in IV (2007) CPJ 289 between Sri Narayan Singh Vs. New India Assurance Company Ltd. and further in a latest decision reported in I (2009) CPJ page 183 between Oriental Insurance Company Ltd. Vs. Om Prakash Gupta and another has been pleased to hold where the vehicle has already been transferred in the name of the complainant in RTO records and even if the insurance policy has not been got transferred, the complainant would be entitled to the benefits accruing from policy and has held that the insurer is liable to pay the insurance amount.

    Therefore, in view of the latest decisions, which are rendered based on GR 10 issued by Tariff Advisory Committee on sale of vehicle and benefit under the policy on date of transfer and they have further stated that benefits will ensure to the benefit of the owner of the vehicle, with this we find no merits in the contention of the second opposite party and their counsel and as such the opposite parties are not right in repudiating the claim of the complainant, and the repudiation amounts to deficiency in their service and therefore answer point no.1 accordingly and pass the following order:-


    ORDER

    1. The Complaint is allowed.

    2. The first and second opposite parties are jointly and severally held liable to reimburse the complainant of his repair expenses and are directed to pay Rs.73,010/- within 60 days from the date of this order, failing which they shall pay interest at 9% p.a. from the date of this order till the date of payment.

    3. The first and second opposite parties shall jointly and severally pay cost of Rs.1,000/- to the complainant. 4. Give a copy of this order to each party according to Rules.


  • adminadmin Administrator
    edited September 2009
    Complaint Case No.203/2008
    Date of Institution 8-8-2008
    Date of Decision 30-4-2009


    1.Promila Devi wd/o late Sh. Yashwant Singh aged 36 years .
    2.Sunena Kumari minor D/o late Sh. Yashwant Singh aged 13 years
    3.Asish Thakur minor son of late Sh. Yashwant Singh aged 8 years
    Both minors through their mother and natural guardian Smt. Promila Devi complainant No.1
    4.Smt. Ram Pyari wd/o late Sh.Rajinder Singh aged 52 years
    All residents of village Kanalag Ward No.5 Nagar Panchayat Sarkaghat , Tehsil Sarkaghat, District Mandi, H.P.
    …Complainants
    V/S


    1.M/S Reliance General Insurance Regional Office SCO 212-214 Sector 34-A Chandigarh 160022 through its Regional Manager.

    2.State of Himachal Pradesh through its Director , Department of Ayurvedic to the Govt of H.P.Shimla

    …..Opposite parties



    For the complainant Sh. P.R.Sharma ,Advocate
    For the opposite party No.1 Sh. G.L. Upmanu , Advocate
    For the opposite party No.2 Sh.Vipul Sharma ,DDA





    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 parties. The complainant has averred that the Govt. of H.P. through its Finance ( IF) Department purchased the Indexed Group Personal Accident Insurance Scheme for its regular and other various categories of employees from the opposite party No.1 through their newly opened Branch Office at Rain Basera Building , Khalini Shimla commencing from 10-10-2007 for a period of one year covering risk of various kinds on deduction of Rs.50/- per month from salary of the employees for a sum assured to the tune of Rs.2,00,000/- as per Annexure C-1. That Yashwant Singh , husband of the complainant No.1 and father of the complainants No.2 and 3 and son of the complainant No.4 was serving as Daily wages peon and while posted as such at Sub Divisional Ayurvedic Hospital Sarkakghat, District Mandi also became member
    of the above insurance scheme for which premium was deducted regularly. That unfortunately during the currency of the policy ,Sh. Yashwant Singh sustained brain hemorrhage due to head injury on 9-2-2008 at the house of his father in law Sh. Kirpa Ram at village Graudu, Post Office Sajai Piplu Tehsil Sarkaght , District Mandi at about 8 PM due to slipping of foot while coming down from stairs of upper storey of house after taking meal from kitchen and coming to ground floor by
    falling in the court yard of the house and was immediately removed to the nearby Ayurvedic Hospital at Sajai Piplu by father in law of deceased alongwith Pradhan Gram Panchayat , Sajai Piplu and other neighbours where he was declared dead as per Annexure C-2. Rapat No.4 with regard to the accidental death was also lodged at Police Station Sarkaghat in the morning of 10-2-2008 which is Annexure C-3.That the complainants were not at all aware about the insurance policy of the deceased which fact was later on told by Medical Officer Ayurvedic Hospital Sarkaghat where the deceased was posted as daily wages as Peon at the time of the accidental death and advised to lodge the claim with the opposite party No.1. The complainants submitted the claim to the opposite party No.1 alongwith all original documents . The opposite party No.1 vide letter dated 23-4-2008 has repudiated the claim as No claim on the ground that no post mortem was carried out which is pre-requisite for Death claim as per letter Annexure C -6. The complainant has alleged that the repudiation of the claim on the alleged ground is wrong , illegal , unwarranted , arbitrary and without application of mind and not at all bonafide and also not in good faith . The complainant had alleged that the policy was purchased by the Govt. and the same has not been supplied to life assured nor to the complainants and it is for this reason that post mortem was not got conducted and, therefore, the demand of post mortem by the opposite party No.1 is illegal and amounts to deficiency in service. It has further been alleged that no terms and conditions and procedure to file death claim mentioned in Annexure A page 3 supplied with Annexure C-1 and if supplied to the opposite party No.2 then it is the duty of the opposite party to No.2 to apprise their subordinate officials under whom employee works to manage for post mortem of the employees who die accidental death for providing the policy benefit to legal heirs. With these averments , the complainants had sought a direction to the opposite parties to pay the insurance benefits of Rs.2,00,000 /- to them with interest at the rate of 12% PA with effect from 9-2-2008 and Rs.50,000/- as compensation alongwith costs of the complaint.
    2 The opposite party No.1 has failed to file reply and its right to file the reply was closed by the order of the forum dated 20-1-2009



    3. The opposite party No.2 resisted the complaint and raised preliminary objections that the complainant is not a consumer as defined under the Act, that there is no deficiency in service on the part of the opposite party No.2 and that this Forum has no jurisdiction to hear the present complaint. On merits, the opposite party No.2 has admitted that deceased Yashwant Singh was insured by the Department under Group Personal Accident Policy through opposite party No.1 and as per Notification dated 10-10-2007, premium in the sum of Rs.50/- was deducted from the wages of Sh. Yashwant Singh for the month of October 2007. The opposite party No.2 has denied that the deceased employee has sustained accidental injuries and therefore he was declared dead. It has been averred that it was incumbent upon the family of the deceased to ensure to get the postmortem of deceased done from competent authority so the cause of death could be ascertained . The medical certificate issued by the Ayurvedic Medical Officer does not find any legal sanctity in the absence of proper conducting of autopsy by the competent Medical Authority. It had further been averred that the legal representative of the deceased Yashwant Singh had not timely intimated the police on the very day of death otherwise the Police could have got the postmortem done . The opposite party No.2 had further averred that the case alongwith entire record was sent vide letter No.104 dated 27-2-2008 timely to opposite party No.1 so far as the claim of the policy is concerned and it is to be settled by the opposite party No.1. It has further been contended that the policy was purchased by the opposite party No.2 from the opposite party No.1 and it is the opposite party No.1 who has to settle the claim as per the terms and conditions of the policy . The opposite party No.2 has denied any deficiency in service on its part and prayed for dismissal of the complaint qua it .


    4. The complainant had filed rejoinder reiterating the averments made in the complaint and controverting the averments made in the reply by the opposite party No.2.


    5 We have heard the ld. counsel for the parties and have also gone through the entire record. The case of the complainant is that deceased Yashwant Singh was serving as daily wages Peon and posted as such at Sub Divisional Ayurvedic Hospital Sarkaghat . That Govt. of H.P. through its Finance ( IF) Department purchased the Indexed Group Personal Accident Insurance Scheme for its regular and other various categories of employees from the opposite party No.1 and deceased Yashwant Singh was also a member of the above insurance scheme for which the premium was regularly deducted and during the currency of the above policy, he died on account of injuries sustained by him on 9-2-2008 at the house of his father- in -law Sh. Kirpa Ram at village Graudu. The opposite party No.1 did not contest the complaint . The case of the opposite party No.2 is that it was incumbent upon the family of the deceased Sh. Yashwant Singh to get the post mortem conducted on the dead body of deceased from competent authority so as to ascertain the cause of death and the claim has to be settled by the opposite party No.1 and not by the opposite party No.2 as per the terms and conditions of the insurance policy.


    6 It has not been denied by the opposite party No.2 that the deceased Sh. Yashwant Singh was covered under the Indexed Group Personal Accident Insurance Scheme as per notification of Finance Department letter No. FIN. IF (F) 9-2/2006 -1 dated 10-10-2007 and the premium of Rs.50/-was also deducted from the salary of the life assured in the month of October , 2007. It has also not been denied by the opposite party No.2 that Sh. Yashwant Singh died on 9-2-2008. However, the case of the opposite party No.2 is that the complainant has failed to prove that the deceased died on account of injuries sustained by him and it was accidental death. As per the opposite party No.2, the family of the deceased should have conducted the post mortem on the dead body of the life assured from competent authority. In order to prove that the deceased Yashwant Singh died on account of injuries sustained by him, the complainants have placed on record photocopies of prescription slip issued by doctor Annexure C-2, Rapat Rojnamcha No.4 dated 10-2-2008 entered in police station ,Sarkaghat Annexure C-3 , death certificate issued by Govt Ayurvedic Dispensary Annexure C-4, certificate issued by Pradhan Gram Panchayat, Sujai Piplu Annexure C-5. The opposite party No.1 had filed Affidavit of Dr. B.K. Sood dated 2-4-2009 wherein he deposed that the documents were submitted to the opposite party No.1 and had also placed on record the repudiation letter of opposite party No.1dated 24-3-2008 wherein the claim was treated as “No claim “ on the ground that no post mortem was conducted which was pre requisite for a death claim.


    7 Now the question which arises for determination by this Forum is as to whether the opposite party No.1 was justified in repudiating the claim on the aforesaid ground The complainants have pleaded that the insurance policy was purchased by the opposite party No.2 from the opposite party No.1 and the copy of the policy containing terms and conditions of the same was never supplied either to the life assured ( deceased) or to the complainants , otherwise the complainant No.1 would have conducted the post mortem on the dead body of the deceased and non conducting of the post mortem occurred due to lack of knowledge of the alleged terms and conditions of the policy which were never supplied to the complainants. In our opinion , the repudiation of the claim on the ground that the post mortem was not got conducted by the complainants on the dead body of the life assured is not justifiable because there is sufficient evidence available on record that deceased life assured had died due to accident on account of fall and
    received brain haemorrhage because of head injury. The perusal of the prescription slip Annexure C-2 shows that on 9-2-2008 deceased Yashwant Singh was examined by the Doctor and he was brought with a history of fall from upper storey of the house as a result of which he sustained brain hemorrhage . In rapat No.4 dated 10-2-2008 Annexure C-3 it has been mentioned that the deceased died due to head injury .In the death certificate Annexure C-4 issued by Govt Ayurvedic Dispensary it has been mentioned that Sh. Yashwant Singh died due to brain haemorrhage and those were found head injuries because the attendant stated that he slipped from the upper storey and fall on the courtyard .Annexure C-5 is the certificate issued by Pradhan Gram Panchayat Sajai Piplu in which he has also mentioned that the life assured died due to brain haemorrhage . Not only this , the complainant had also adduced in evidence affidavits of Sarita Devi, Pradhan Gram Panchayat Sujai Piplu (Annexure C-7), Sh. A.S. Pathania ,G.A.M.S. Ayurvedic Medical Officer Sajai Piplu Annexure C-8 and Sh. Kirpa Ram father—in- law of the life assured as Annexure C-9. All of them deposed in their respective affidavits that the life assured Sh. Yahswant Singh died due to head injury sustained by him on account of a fall from stairs .


    8 In a similar situation in a case titled ICICI Lombard General Insurance Co. Ltd vs Raju Kachhawa IV (2008) CPJ-312 the deceased slipped in the house and received head injury including brainstem haemorrhage . Neither first information report was recorded nor post mortem was conducted and the insurance company repudiated the claim . The Hon’ble State Commission of Rajasthan held that there was no necessity of lodging First Information report and post mortem report and the repudiation of the claim amounts to deficiency in service on the part of the insurance company. Relevant portion of the aforesaid order reads as under:-
    18.Apart from this , since head injury was the direct result of the slipping of deceased in the bath room, therefore ,that would be treated as mishap or untoward event not expected or designed. Furthermore the slipping of deceased in the bath room was certainly unintended occurrence which had an adverse physical result and thus death of the deceased was accidental one .


    …………………………………………………….


    20.Thus for the reasons stated above it is held that the death of the deceased was accidental one as the event which happened and occurred in the present case was merely by chance and was covered by the word “ accident ” and the learned District Forum has rightly observed so.
    Non production of documents i.e. FIR and Post mortem report.


    21 No doubt in the case , FIR and post mortem report were not produced but non furnishing of FIR and post mortem report would not mean that no accident had taken place. Further more since the deceased had died because of receiving head injury due to slipping in the bath room, therefore there was no necessity of lodging any FIR and getting the post mortem examination done as there was no crime or offence committed by any one under the provisions of Indian Penal Code or any other enactment.
    22.Therefore if the document ( FIR and post mortem report ) as demanded by the appellants through letter Annexure R-2 dated 3-3-2006 were not furnished and produced by the complainant- respondent , it cannot be said that the claim of the complainant – respondent was false one.”

    9 In the present case also, deceased Yashwant Singh sustained injuries on account of fall . No post mortem had been conducted on the body of life assured but that does not mean that no accident had taken place because as per our aforesaid discussion there is sufficient evidence available on record that deceased had died because of brain haemorrhage due to head injury. Therefore in view of aforesaid case law, there was no necessity for the complainant to get the post mortem examination done because no crime or offence was committed by any one under the provisions of Indian Penal code or any other enactment .Moreover, due to death, the family members of the deceased life assured had come under shock and how they would have reacted upon his death is beyond imagination . Therefore, the repudiation of the claim simply on the ground of non conducting of the post mortem examination of deceased is not justifiable. In nut shell, we have no hesitation in concluding that the complainants had proved and established that the life assured had died due to accidental death and there was no necessity of getting the post mortem examination done by the complainants. The repudiation of the claim of the complainant on this sole ground certainly amounts to deficiency in service.

    10 In the light of above discussion, the complaint is allowed and the opposite party No. 1is directed to pay Rs.2,00,000/- to the complainants . with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by them and also to pay a sum of Rs.1,500/- as costs of litigation. The amount shall be paid to the complainants in the ratio of 2:1:1:2. The share of minor complainants No.2 and 3 be deposited in fixed deposit till they attain the age of majority and the Fixed deposit receipt be retained in the office.
  • adminadmin Administrator
    edited September 2009
    Bihari Lal son of Sh. Jagat Ram resident of village Khair , Post Office Mahog, Tehsil Karsog,, District Mandi, H.P.



    …Complainant


    V/S
    Reliance General Insurance company branch office Mandi, District Mandi, through its branch Manager .

    …..Opposite party





    For the complainant Sh. Noor Ahmad, Advocate
    Opposite party Exparte.

    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 purchased a light motor vehicle i.e. Force Motors Ltd Kargo and its weight is 1865 kilograms by raising loan from Mahindra and Mahindra Finance Service Ltd , Ner Chowk to earn his livelihood by means of self employment . The complainant got the vehicle insured with the opposite party and comprehensive insurance policy was issued by the opposite party with effect from 23-3-2007 to 22-3-2008. That the vehicle in question met with an accident on 1-11-2007 near Shogi in District Shimla, H.P and the said vehicle was badly damaged The accident was duly intimated to the opposite party. The complainant was advised by the opposite party to firstly repair the vehicle from authorized centre and the claim will be settled thereafter. The complainant got the vehicle repaired from Sai Force Vaknaghat Post Office Kerighat ,District Solan and had spent Rs.1,15,000/- on repair . Apart from this Rs.3000/- was paid as recovery van charges . The complainant submitted the claim to the opposite party for settlement of the claim but after the lapse of nine months the claim has not been settled which amounts to deficiency in service as well as unfair trade practice It has been alleged that the opposite parties were served with legal notice on 10-9-2008, but the same was neither responded nor claim was settled. On these allegations, the complainant had sought a direction to the opposite party to pay Rs.76,970/- as repair cost of the vehicle alongwith interest at the rate of 12% PA , A sum of Rs.20,000/- has also been claimed on account of compensation apart from costs of litigation.


    2 The opposite party was initially represented by Sh.G.L. Upmanu Advocate but failed to file reply and its right to file the same was closed by the order of the Forum on 20-1-2009. On 23-3-2009, the opposite party was proceeded against exparte.


    3. We have heard the ld. counsel for the complainant and have also gone through the entire record. The perusal of the complaint and accompanying documents, it appears that the grievance of the complainant is that the vehicle No. HP-30A-0250 owned by him was got insured with the opposite party from 23-3-2007 to 22-3-2008 and during the currency of the said policy the vehicle met with an accident and suffered huge damages. The complainant had intimated the accident of the said vehicle to the opposite party who deputed its surveyor for survey and assessment of the loss . As per the complainant, the vehicle was repaired by him at workshop at the instance of the Surveyor and spent Rs.1,15,000/- . The claim has been submitted to the opposite party but the same has not been settled till date. On the other hand the opposite party had not contested the complaint and was proceeded against exparte. We have gone through the documentary evidence adduced in evidence by the complainant which is annexure C- A to C-G and Annexure C-1 and C-2 The complainant has not filed any bills of repair or estimated costs of repair with this forum and rather adduced in evidence the cash memos worth Rs.1,15,000/- which according to him were paid on account of repair of the vehicle in question . As per the complainant , he spent Rs.1,15,000/- but in the prayer clause he had prayed Rs76,970/- as repair charges .The cash memos are in the name of the complainant but bears no vehicle number. Be it stated that as per the own case of the complainant, the claim has not been decided by the opposite party despite submission of the claim Also in view of the fact that the complainant has not filed complete documents in support of the averments made in the complaint , we feel that the complaint is pre-mature at this stage and before proceeding further in the case it would be in the interest of justice if we direct the opposite party to settle the claim because all the documents were lying with the opposite party as submitted by the complainant.


    4 In view of what has been stated above , the complaint of the complaint is partly allowed and the opposite party is directed to settle the claim of the complainant within a period of two months from the date of receipt of the order of this Forum in accordance with law . However, the complainant is at liberty to file fresh complaint on the same cause of action in case his claim is repudiated by the opposite party or not settled within the stipulated period.
  • adminadmin Administrator
    edited September 2009
    Complaint No: 132 of 2008
    Date of Institution: 24.09.2008
    Date of Service:15.10.2008
    Date of Decision:02.04.2009
    Kaka Singh (aged 40 years) son of Sh.Malkiat Singh, resident of village: Alamwala, Tehsil: Bagha Purana, Distt.Moga.
    Complainant.
    Versus

    1. Reliance General Insurance, Anil Dhirubhai Ambani Group, Regional Office, SCO 212-214, Sector 34-A, Chandigarh through its Regional Manager.
    2. Reliance General Insurance Co.Ltd. 991, Ist Floor, Ward # 5, Near Bus Stand, Opposite SBOP, G.T.Road, Moga through its Branch Manager.
    Opposite Parties
    Complaint Under Section 12 of the
    Consumer Protection Act, 1986.
    Present: Sh.P.S.Sidhu, Adv.counsel for the complainant.
    Sh.Jaswinder Singh, Adv.counsel for the OPs.

    Quorum: Sh.J.S.Chawla, President.
    Sh.J.S.Mallah, Member.

    (J.S.Chawla, President)
    Sh.Kaka Singh complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against Reliance General Insurance, Anil Dhirubhai Ambani Group, Regional Office, SCO 212-214, Sector 34-A, Chandigarh through its Regional Manager and another (herein-after referred to as ‘Insurance Company’)-Opposite parties directing them to pay Rs.70109/- as repair charges of vehicle and also to pay Rs.5000/- as compensation for causing mental tension and harassment besides Rs.5000/- as costs of litigation.


    2. Briefly stated, Kaka Singh complainant got insured his car make Lancer bearing registration no.PB-10AP-1313, with OPs-Insurance Company vide policy no. 2011382311100063 for the period w.e.f. 02.04.2008 to 01.04.2009. That earlier, the said vehicle was insured with United India Insurance Company for the period w.e.f. 02.04.2007 to 01.04.2008. That on 11.5.2008 said vehicle met with an accident and was damaged badly. That the complainant immediately informed the agent of OPs-Insurance Company about the damage and at his instance, got repaired his vehicle from Nagi Motors, G.T.Road, Moga. That the surveyor of the OPs-Insurance Company inspected the damaged vehicle and gave his report accordingly. That the complainant paid Rs.70109/- to Nagi Motors, G.T.Road, Moga for the repair of the said car. Thereafter, the complainant lodged the claim with the OPs-Insurance Company and completed all the formalities, but they failed to pay the aforesaid amount to the complainant. That the OPs-Insurance Company has repudiated the claim of the complainant vide their letter dated 01.09.2008 on the flimsy ground. Hence the present complaint.


    3. Notice of the complaint was given to the OP-Insurance Company who appeared through Sh.Jaswinder Singh Advocate and filed written reply contesting the same. They took up preliminary objections that there is neither any deficiency in service nor unfair trade practice on the part of the OPs-Insurance Company and that the present complaint is not maintainable in the present form. In fact, the complainant purchased policy from the OPs-Insurance Company valid for the period w.e.f. 2.4.2008 to 1.4.2009 on the terms and conditions mentioned therein; that on receiving the information, the OPs-Insurance Company appointed M/s.Royal Associates, an independent investigator to investigate the matter who submitted their report stating that they visited the village of the complainant where his father and sarpanch of the village stated that the vehicle in question had met with an accident at Railway Bridge when it was coming to village on 15.3.2008; that the claim does not fall within the ambit of the policy because the policy in question was purchased by the complainant w.e.f. 2.4.2008 to 1.4.2009 and consequently the claim of the complainant was rejected. On merits, the OPs-Insurance Company took up the same and similar pleas as taken up by them in preliminary objections. All other allegations made in the complaint were specifically denied being incorrect. Hence, it was prayed that the complaint filed by the complainant has no merit and the same deserves dismissal.


    4. In order to prove his case, the complainant tendered in evidence his affidavits Ex.A1 and Ex.A6, copy of policy Ex.A2, copy of bill Ex.A3, copy of letter Ex.A4, copy of policy Ex.A5, affidavit Ex.A7of Gurcharan Singh, affidavit Ex.A8 of Rachhpal Singh Ex.Sarpanch, and closed his evidence.


    5. To rebut the evidence of the complainant, the OPs-Insurance Company tendered affidavit Ex.R1 of Sh.Pradeep Sharma, Sr.Executive-Legal Claims, affidavit Ex.R2 of Kashmir Singh proprietor of M/s.Royal Associates, copy of proposal Ex.R3, copy of policy Ex.R4, copies of statements Ex.R5 and Ex.R6, copy of investigation report Ex.R7, copy of letter Ex.R8 and closed their evidence.

    6. We have heard the arguments of Sh.P.S.Sidhu ld. counsel for the complainant and Sh.Jaswinder Singh ld. counsel for the OPs-Insurance Company and have very carefully perused the evidence on the file.


    7. Sh.P.S.Sidhu ld.counsel for the complainant has mainly argued that the OPs-Insurance Company has wrongly and illegally repudiated the claim of the complainant amounting to Rs.70109/- spent on the repair of the car. This contention of the ld.counsel for the complainant has full force. Admittedly, the car in question was insured with the OPs-Insurance Company for the period w.e.f. 02.04.2008 to 01.04.2009 and the alleged accident took place on 11.5.2008. The only defence taken up by the OPs-Insurance Company was that the accident had taken place on 15.3.2008 near Railway Bridge when the car was not insured with the OPs-Insurance Company. This defence taken up by the OPs-Insurance Company has no merit because earlier the car was insured with United India Insurance Company w.e.f. 02.04.2007 to 01.04.2008. Had the accident taken place on 15.3.2008 as alleged by the Investigator M/s. Royal Associates, then the complainant would have lodged the claim against United India Insurance Company and not the OPs-Insurance Company.


    8. Moreover, the report Ex.R7 of M/s.Royal Associates relied upon by the OPs-Insurance Company can not be given any effect because Rashpal Singh Sarpanch on whose statement, the investigator has relied upon appeared before this Forum and filed his affidavit contradicting the finding of the investigator. To rebut the finding of the investigator, the complainant has also produced the affidavits Ex.A7 of Gurcharan Singh and Ex.R8 of Rashpal Singh, sarpanch. Rashpal Singh sarpanch has deposed that Malkiat Singh father of the complainant is residing in Rajasthan and occasionally come to village. The Investigator got his signatures on blank paper assuring him that he will write his statement as per rules. To the similar effect is the affidavit Ex.A7 of Gurcharan Singh. Sh.Kaka Singh complainant has also produced his affidavit Ex.A6 to controvert the aforesaid allegation of the Investigator of the OPs-Insurance Company. In view of these circumstances, the affidavit Ex.R2 of Kashmir Singh Surveyor and his report Ex.R7 can not be believed that the alleged accident had taken place on 15.3.2008 and not on 11.5.2008. Had the accident been taken place on 15.3.2008, then there was no occasion for Kaka Singh complainant to lodge the claim against the OPs-Insurance Company instead of previous insurance company i.e. United India Insurance Company.


    9. The Investigator has further mentioned in his report Ex.R7 that the car in question was being run as taxi, but no evidence has been produced to prove the same. This plea of the investigator also falls like a house of cards.


    10. Moreover, it is mentioned in the report Ex.R7 of the Investigator that the insurance policy was purchased by the complainant in connivance with agent and that the company may take suitable action against the said agent who has issued the cover note for the accidental vehicle, but no evidence has been produced to prove that the cover note in question was issued to the complainant in connivance with agent. Moreover, if the agent had been hand in gloves with the complainant while issuing the cover note in question, then no explanation is forthcoming as to why the OPs-Insurance Company did not take action against the said agent. The OPs-Insurance Company could have also cancelled the insurance policy to the complainant if the same was issued fraudulently by their agent. All these circumstances show that the OPs-Insurance Company has taken up a false plea that the alleged accident took place prior to the issuance of the policy just to repudiate the claim of the complainant. In view of the aforesaid facts and circumstances, we hold that the OPs-Insurance Company has wrongly and illegally repudiated the claim of the complainant on flimsy grounds. Hence they have committed deficiency in service while repudiating his claim.


    11. The complainant has produced the bill Ex.A3 of Nagi Motors that he has spent Rs.70109/- on the repair of his car. In rebuttal, the OPs-Insurance Company has failed to lead any evidence. Even the report Ex.R7 of Kashmir Singh surveyor/ investigator is silent with regard to assessment of loss of car in question. Thus, relying upon the affidavit Ex.A1 of the complainant and bill Ex.A3 of Nagi Motors, we therefore hold that the complainant has suffered loss to the extent of Rs.70109/- on the repair of his car.


    12. The ld. counsel for the parties did not urge or argue any other point before us.


    13. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has merit and the same is accepted. The OPs-Insurance Company is directed to pay Rs.70109/- being the repair of car bearing registration no.PB-10AP-1313 alongwith compensation of Rs.10000/- on account of mental tension, harassment and agony to the complainant within 30 days from the date of receipt of copy of this order.
  • adminadmin Administrator
    edited September 2009
    consumer case(CC) No. CC/08/163

    SAtnam Singla
    ...........Appellant(s)
    Vs.

    M/s Sidhu Automobiles

    Reliance General Insurance Co.

    Reliance Central
    ...........Respondent(s)

    BEFORE:
    1. Neena Rani Gupta
    2. P.S. Dhanoa
    3. Sh Sarat Chander



    Satnam Singla S/o Sh. Nohar Chand, resident of Ward No.10, Near Trivani Mandir, Mansa. ..... Complainant.

    VERSUS

    1.M/s Sidhu Automobiles, Link Road, Mansa, through its Manager /Partner/Proprietor.

    2.General Manager, Reliance General Insurance Company, Divisional Office, Mall Road, Ludhiana.

    3.Reliance Centre No.19, Registered office, Wal Chand Hira Chand Marg, Ballard Estate, Mumbai 400 001 through its M.D. ..... Opposite Parties.

    Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh. M.L.Jindal,Advocate counsel for the complainant. Sh.G.S.Sidhu, Advocate counsel for the Opposite Party No.1. Opposite Party No.2 exparte. Sh.Naval Goel, Advocate counsel for the Opposite Party No.3. Before: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member.


    ORDER:- Sh.P.S.Dhanoa, President.


    This complaint has been filed by Sh.Satnam Singla son of Sh. Nohar Chand, a resident of Mansa, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act'), against the opposite parties for payment of claim in the sum of Rs.3000/- and compensation in the sum of Rs.20,000/- on the averments, which may, briefly be described as under:

    Contd........2 :

    2 : 2. That the complainant has purchased a TVS Star Sports motorcycle bearing Registration No.PB31F-6276 from the Opposite Party No1 i.e. M/s Sidhu Automobiles, Link Road, Mansa. The complainant got insurance cover for his motorcycle bearing No.200702792747 for the period 15.3.2008 to 14.3.2009 from the Opposite Party No.2 i.e. Reliance General Insurance Company, Divisional Office, Ludhiana, through Opposite Party No.1. He paid premium in the sum of Rs.851/-. In the month of May, 2008, the motorcycle of the complainant met with an accident in which he sustained multiple injuries and damage was caused to his motorcycle about which he conveyed the intimation to Opposite Party No.2 through Opposite Party No.1 and his complaint has been registered at Sr.No.508678 in the register maintained in the office of Opposite Party No.2, as informed by Opposite Party No.1. The complainant got his motorcycle repaired from Opposite Party No.1 on 1.6.2007, who issued estimate dated 1.6.2008 in the sum of Rs.3,000/- for repair of motorcycle and he issued bill No.1525 dated 1.6.2008 in the sum of Rs.2901/-, but by mistake, date of bill has been mentioned as 1.6.2007 instead of 1.6.2008. The complainant served notice dated 13.9.2008 upon the Opposite Parties No.1&2 through registered post, but inspite of this, his claim has neither been settled nor paid because of which he has been subjected to mental and physical agony, as such, he is liable, to be compensated, for the same and for payment of amount spent by him, for filing the instant complaint. Hence this complaint.


    3. On being put to notice, Opposite Party No.1 filed written version, resisting the complaint, by taking preliminary objections; that the complainant, is not the 'consumer' within the purview of its definition given in the Act, as such, his complaint, is not maintainable; that complainant, has no cause of action, and locus standi, to file the complaint and his complaint, being false and vexatious, is liable, to be dismissed, with costs of Rs.50,000/-. On merits, it is admitted that motorcycle was

    Contd........3 :

    3 : purchased from the answering opposite party, but it is denied for want of knowledge that Registration Number of the same is PB31F-6276, as such, complainant be put to strict proof. It is denied that any intimation regarding damage to his motorcycle was given to Opposite Party No.2 through the answering opposite party by the complainant. Rather it is averred that answering opposite party has no concern with the complaint. However, it is admitted that estimate in the sum of Rs.3,000/- was issued regarding damage caused to the motorcycle of the complainant and bill dated 1.6.2008 was issued in the sum of Rs.2901/- after affecting repair. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.


    4. The Opposite Party No.2 was proceeded against exparte vide order dated 18.11.2008. 5. The Opposite Party No.3 filed separate written version, resisting the complaint, by taking preliminary objections; that complainant, has no cause of action, and locus standi, to file the complaint; that this Forum has no jurisdiction to entertain and try the complaint; that the complainant has concealed the true facts that payment of Rs.1702/- as full and final settlement of his claim, has already been made to him; that the complainant is estopped by his own act and conduct to file the complaint, as he has already received the said amount in full and final settlement without protest and has issued discharge voucher and receipt with free consent and that the complaint being false and vexatious is liable to be dismissed with special costs. On merits, it is admitted that TVS motorcycle bearing Registration No.PB31F-6276 was got insured by the complainant from the answering opposite party vide Cover Note No. 200702792747 for the period 15.3.2008 to 14.3.2009. It is also admitted that complainant paid premium and sent intimation regarding damage caused to the motorcycle in the accident on 26.5.2008 after which extent of damage to his motorcycle was assessed by the Surveyor appointed by


    Contd........4 :

    4 : the opposite party in the sum of Rs.1702/- which he received as full and final settlement of his claim, but thereafter he filed the instant complaint in connivance with the Opposite Party No.1 after forging documents. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.


    6. On being called upon, by this Forum, to do so, the complainant, tendered in evidence, his affidavit Ext.C-1, and copies of documents Ext.C-2 and C-7 and closed the evidence. On the other hand, learned counsel for the Opposite Parties tendered in evidence affidavits and copy of documents Ext.OP-1 to OP-5 and closed evidence.

    7. We have heard the learned counsel, for the parties and gone through, the oral and documentary evidence, adduced on record, by the parties, carefully, with their kind assistance.

    8. Learned counsel for the complainant, Sh. M.L.Jindal,Advocate has submitted that the motorcycle of the complainant met with an accident in the month of May, 2008, in which he sustained multiple injuries and damages was also caused to his motorcycle, but despite conveyance of intimation and service of legal notice upon the Opposite Parties No.1 and 2, his claim has neither been settled nor paid, due to which, he has been subjected to mental and physical harassment, as such, he is liable, to be compensated, for the same and for payment of amount spent by him, for filing the instant complaint.


    9. At the outset, Sh.Naval Goel, Advocate, learned counsel for Opposite Party No.3 has drawn our attention to documents placed on file showing that he has received a sum of Rs.1702/- as full and final settlement of the claim from Opposite Parties No.1 & 2 without protest. Learned counsel has argued that payment has been made to the complainant strictly as per the report of the Surveyor, who is the best person, whose report cannot be brushed aside by the Forum unless there is some patent irregularity or illegality, as such, he is estopped from filing

    Contd........5 :

    5 : the complaint re-agitating the same controversy on the basis of forged documents secured by him in connivance with Opposite Party No.1. Learned counsel has argued that the complainant has not examined any expert from his own side whereas the answering opposite party has alleged connivance between him and the Opposite party No.1, who is admittedly dealer of manufacturing Company. In support of his contentions, learned counsel has placed reliance upon 2008(I) CLT 302 Gian Chand Gupta versus National Insurance Company wherein loss or damage was paid to the complainant by the Insurance Company relying upon the report of the Surveyor on account of which it was held by the Hon'ble National Commission that payment received by the complainant is not open to challenge. Learned counsel has further relied upon 2008 (II) CLT (NC) 379 National Insurance Company Ltd versus Krishna Rice Mills wherein the the complainant at no stage alleged either coercion or duress in acceptance of the amount of claim on account of which it was held that he will not be entitled for any payment other than that he has already accepted in full and final settlement of the insurance claim. Learned counsel argued that in view of the facts and proposition of law laid down in these authorities, the complaint, being abuse of process of court deserves to be dismissed with costs.


    10. Sh.G.S.Sidhu, Advocate, learned counsel for the Opposite Party No.1 has submitted that no relief has been sought by the complainant against his client, as such, his complaint is liable to be dismissed against Opposite party No.1.


    11. Admittedly, the complainant purchased a TVS Star Sports motorcycle bearing Registration No.PB31F-6276 from the Opposite Party No1 and got insurance policy from the Opposite Party No.2 for his motorcycle bearing Cover Note No. 200702792747 for the period 15.3.2008 to 14.3.2009 through Opposite Party No.1. There is no dispute that he paid premium in the sum of Rs.851/-. In the month of May, 2008,

    Contd........6 :


    6 : the motorcycle of the complainant met with an accident in which he sustained multiple injuries and damage was caused to his motorcycle. The complainant has not claimed any relief against Opposite Party No.1 in the instant complaint. It appears that he has been impleaded as party to the complaint as proper party because of issuance of estimate and bill after repair about the amount required to be spent to effect repairs to his motorcycle and issuance of bills, as such, complaint against Opposite Party No.1 is bound to fail.


    12. The plea of remaining contesting opposite parties is that extent of damage to the motorcycle was assessed by the Surveyor appointed by him in the sum of Rs.1702/- after receipt of intimation about accident from the complainant. The Opposite Party No.3 has also placed on record Satisfaction Voucher Ext.OP-5 after receiving the sum of Rs.1702/- as full and final settlement of his claim . The complainant has neither denied the execution of the said document in the complaint, nor he has alleged that his signatures were obtained by the opposite party or its investigator or surveyor on some other pretext. He has also not alleged execution of the document by coercion or duress and no attempt has been made by him to get his signatures, affixed on that document, compared by any handwriting expert with his own specimen signatures. The perusal of the document reveals that some columns in the voucher have been left blank in the receipt which has been tendered as part thereof. The signatures of the complainant are not affixed on revenue stamp and space meant for the purpose. The Opposite Party No.3 has taken a specific objection in the written version regarding execution of documents and payment of Rs.1702/- to the complainant as per report of the surveyor, but no rejoinder has been filed by him to rebut these facts introduced first time in the written version by them. It is well settled that complainant has to succeed by standing on his own leg and not on the basis of any weakness in the case of the opponent. Therefore, we are unable to accede to the

    Contd........7 :

    7 : submissions made by the counsel for the complainant that documents referred to above are forged. It may not be out of place to mention here, that as per the admitted facts, estimate has been issued in the sum of Rs.3,000/- by Opposite party No.1 for repair of motorcycle of the complainant, but the bill Ext.C-2 has been issued in the sum of Rs.2901/-. There is also no cogent explanation as to why wrong date of issuance of bill has been mentioned by the Opposite party No.1. As such, on the face of the above said facts, the plea of the Opposite party No.3 cannot be rejected, especially when connivance, has been alleged between the complainant and the Opposite party No.1, against whom no relief has been sought, although he has been associated as party to the complaint. 13. In the light of the ratio of judgments delivered in the authorities relied upon by the learned counsel for the Opposite party No.3, we have come to the conclusion that there is no deficiency in service on the part of the Opposite parties No.2 and 3 in settlement of his claim, which may invite indulgence of this Forum, as sought by the complainant through the instant complaint, after receiving the amount of Rs.1702/-, with free consent without lodging protest and has affixed his signatures on the discharge voucher and receipt, without any coercion and duress.
  • adminadmin Administrator
    edited September 2009
    Consumer Complaint No:479/2008


    Between:

    K. Simhachallam, S/o Appala Swamy, Hindu, aged about 50 years, D.No.36-95-161/1, Kapparada, Kancherapalem, Visakhapatnam - 8

    … Complainant
    And:

    The Reliance General Insurance Co., Ltd., rep. by its Divisional Manager, O/o Divisional Office, located at 403, 3rd Floor, Eswar Paradise, Dwarakanagar Main Road, Visakhapatnam – 16.
    ... Opposite Party

    This case coming on for final hearing on 20-04-2009 in the presence of Sri.D.Suresh Kumar, Advocate for the Complainant and of Sri. D. Siva Prasad, Advocate for the Opposite Party and having stood over till this date, the Forum delivered the following:
    : O R D E R :
    1.The factual matrix that led to the filing of this claim by the insured is the complainant, who is owner of the Hero Honda Passion plus Motor vehicle, bearing No.AP 31 AM 4326, got insured the vehicle with the opposite party, which was under force from 03-04-2007 to 02-04-2008. On 12-07-07 at around 8.45pm, the complainant along with his son, went to SKML Kirana Shop and parked his vehicle in front of the said shop. Admittedly he did not lock the vehicle and even left the key with the vehicle. When he returned from the shop, after the purchase, he found that his motor bike was stolen. He claimed to have informed the police immediately but the FIR No.494/2007 was registered on 25-07-2007 only. He claims to have informed the opposite party also about the loss of the vehicle immediately, but this assertion was denied by the opposite party, which stated that the intimation was given only in the month of August 2007 and thereafter they arranged investigation and the investigator by his letter dated 28-08-2007 requested the complainant to furnish relevant documents and pleads they were never furnished by the complainant. The police, who registered the crime, ultimately referred the case as ‘undetected’ by submitting final report Ex.A.6 dated 19-03-2008. The complainant even after receipt of the final report evidently did not submit the papers to the opposite party but filed this complaint preceded by legal notice dated 20-08-2008, which was received by the opposite party on 22-08-2008. The complainant claimed Rs.32,760/- being the value of the vehicle together with interest @ 24% p.a., on the policy and also damages for sum of Rs.50,000/- besides legal charges of Rs.11,000/-.


    2.The opposite party is challenging the claim mainly on two grounds, firstly non-intimation of the loss of the vehicle immediately after the incident of theft to the insurance company, which is violation of the condition No.1 of the policy. Secondly even as per the report and the complaint, the complainant left the vehicle on road with keys and went into the shop and this amounted to his failure to take proper steps to safeguard the vehicle, which is violation of condition No.4 of the policy . By virtue of violation of these two conditions, the opposite party is repudiating the claim. In addition to it, also took up a plea that inspite of notice by the investigator, the complainant never submitted the relevant documents to it to consider the claim and pass appropriate orders and thus the complaint itself is premature. It also took up a legal plea that the complainant is not a consumer and so the complaint itself is not maintainable. Ex.B.1 is the policy issued by the opposite party.


    3.At the time of enquiry both the parties filed affidavits and marked Ex.A.1 to Ex.A.8 and Ex.B.1 in support of their respective contentions and both the counsels reiterated their contentions relying upon certain judgements, which would be considered at the appropriate stages.


    4.In view of the contentions of the either side the point that would arise for consideration in this complaint is:
    Whether there is violation of policy conditions by the complainant entitling the Insurance Company to repudiate the claim and if not, to what extent it is liable?


    5. In this claim, it is admitted insured motor vehicle is lost by way of theft. The insurer took up the plea that he is not a consumer and the Act has no application, in view of the admitted fact that the opposite party is an insurer and the complainant insured his vehicle with them and thus bound by the contract of insurance, there cannot be any doubt that the complainant would be a consumer and can approach this Forum for redressal of grievance, if any. As already noted the claim is being resisted on the ground of violation of condition No.1 and 4. Condition No.1 of the policy stipulates that “notice shall be given in writing to the Company immediately upon the occurrence of any accident or loss or damage and in the even of any claim and thereafter the insured shall give all such information and assistance as the Company shall require”(emphasis supplied by me). It further reads that “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 co-operate with the Company in securing the conviction of the offender”.


    6. The above condition would clearly show that a duty is cast upon the insured to intimate the loss of the property to the insurer immediately after incident. In this case the theft of the vehicle took place on 12-07-2007. Though the complainant tried to put up the case that he immediately informed the theft of the vehicle to the opposite party, his own complaint would show that such intimation was given after registration of the FIR on 25-07-2007. It is to be noted that the opposite party plead that did not receive any intimation of loss of the vehicle from the complainant and only intimation by it was in the first week of August 2007. Thus it is quite evident that no immediate intimation was given by the insured and we cannot understand this lapse on his part in sending intimation to the Insurance Company, within a reasonable time. But at the same time we cannot ignore the claim of the complainant that he immediately approached the police informing them about the theft and they made enquiries and ultimately registered the case only on 25-07-07 cannot be brushed aside. So as the things stand, the loss of the vehicle by the complainant cannot be doubted. Though there is some lapse on the part of the complainant in sending intimation to the opposite party insurer, there cannot be any malafide intention and absolutely no inference that a false claim is made can be drawn. The requirements of immediate notice to the insurer of the incident involving the insured property is to enable it to investigate the claim and arrive at the truth.


    7. The learned counsel for the opposite party placed reliance upon a decision of the apex court of Oriental Insurance Company Limited Versus Samayanallur Primary Agricultural Coop. Bank (1999) NCJ (SC) page 662 which laid down the principle that the “Insurance policy to be construed having reference only to stipulations contained in it and no artificial far fetched meaning could be given to words appearing in it”. The similar principle was laid down in a later decision in United India Insurance Company Limited Versus M/s Harchand Rai Chandan Lal 2004 NCJ 828(SC). In the first decision, distinction was drawn in between the words safe and cashier’s cash box and when insurance cover was provided for “safe”, the loss of jewellery in the ‘cash box’ was held to be not covered by policy. In the later decision, the burglary followed with violence in the policy conditions came for consideration and apex court suggested amendment of the policy condition in proper way upholding finding that ‘theft’ would not come under the word Burglary, as per the policy conditions.


    8. It also relied upon a decision of the NC in The New India Assurance Co. Ltd., Versus Shri Dharam Singh in FA No.426/2004 dated 04-07-2006, wherein “failure to give notice of incident is violation of the policy condition and the insurer is entitled to repudiate the claim.” In this decision the Hon’ble Commission referred to the earlier decision of Davendra Singh’s case, wherein delay of four days in reporting the theft of the insured vehicle to the police and delay in reporting to the insurer of the theft after a gap of almost of a month was held in violation of condition of policy.


    9. Thus the failure to issue appropriate notice to the insurer immediately is held to be violation of the policy condition. Though, as already observed by us the plea of the complainant that there was theft of the vehicle cannot be disputed, still failure of the complainant to issue notice to the insurer immediately amounted to violation of the policy condition as laid down by the decision cited above and opposite party rightly repudiated the claim.


    10. With regard to the other ground of failure to follow proper safety measures to protect the property by the complainant, it is an admitted case that the complainant left the vehicle on road with keys with it and thus not even locked. This conduct of the complainant clearly amounts to failure to take proper precautions in safeguarding the property insured.


    11. The counsel for the opposite party relied on a decision of Haryana State Commission in United India Insurance Co. Ltd., Versus Naresh Kumar in IV (2005) CPJ 602, wherein motor cycle was left outside shop, stolen – complainant negligent, vehicle left unattended, unlocked - policy terms violated – claim repudiated – complaint wrongly allowed by Forum – Order set aside in appeal. Complainant was held negligent and upheld the contentions of the Insurance Company. In another decision relied upon by the opposite party is in between Bajaj Allianz General Insurance Co. Ltd., Versus Mr. Bhagwan Hiralal Dhote in appeal No. 600/2005 dated 19-12-2005, the Maharashtra State Commission, upheld the plea of the Insurance Company, which reads “complainant left the key along with the vehicle. Keeping the key with vehicle is gross negligence. The above decisions relied upon by the opposite party’s counsel would clearly support their plea as to the way of interpreting the terms of the policy and that the complainant failed to take proper steps to safeguard the property insured is violation of condition No.4 of the policy.


    12. Though the counsel for the complainant relied upon a decision of the Apex Court in National Insurance Co. Ltd., Versus Nitin Khandelwal, 2008(4) ALT 4 (SC), wherein the vehicle was stolen, the claim was allowed partly on non-standard basis, rejecting the contentions of the Insurance Company that there was violation of the policy condition as by using the vehicle as Taxi as not germane to the cause of loss and does not amount to violation of policy condition. Hence in our view this decision will not be of much help to support the contention of the complainant.


    13. In the light of the above discussion, we hold by its failure to intimate the theft of vehicle immediately to Insurance Company and also failure to take proper steps to safeguard the vehicle, the complainant violated the condition No.1 and 4 of the policy and the opposite party Insurance Company has right to repudiate the claim. Accordingly this point is answered against the complainant.


    14. In the result, the complaint is dismissed and in the circumstances of the case, each party is directed to bear their own costs. Advocate fee is fixed at Rs.2,000/-.
  • adminadmin Administrator
    edited September 2009
    Sri.Siddalingswamiji Virakthamath, since deceased r/by Sri, Sanjay S/o Gadagayya Hiremath
    ...........Appellant(s)
    Vs.

    The Branch Manager, Reliance General Insurance Co., Ltd.,
    ...........Respondent(s)Sri. Sanjay Gadagayya Hiremath who is legal heir of late Sri. Siddalingswamiji Virakthamath under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the “Act”) against the Opposite Party (in short the OP) for awarding Rs.2,30,000=00 towards damage of vehicle, mental agony and cost etc.


    2. The facts of the case in nutshell as is narrated by the complainant are as follows: The deceased Siddalingswamiji Virakthamath was the owner of the Tata Indigo Car bearing Registration No.MH-13/AC-1532 of 2006 model. He insured his vehicle under Policy No.1702372311100010 which was valid from 22.12.2006 to 21.12.2007 by paying premium. The said Policy covered risk of personal accident claim, own damage claim and third party risk.


    3. On 18.01.2007 when he was proceeding from Bijapur to Zalaki on NH-13 Road, near the 2nd Petrol Pump at about 21.45 hours one Light Goods Vehicle bearing No.MH-10/K-6965 with a high speed came from the opposite direction dashed the vehicle. Due to the rash and negligent driving of the opposite side vehicle, the said Car was completely damaged and the driver and the owner of the Car died on the spot due to the said accident. The vehicle in question was financed by Mahindra and Mahindra Finance and was hypothecated with the said Company. The accident was registered at Bijapur City Traffic under P.S. Crime No.18/2007.


    4. The complainant submitted his claim of accidental benefit to the OP since the vehicle was not in the repairable condition. Hence, the same was surrendered to the Financier i.e. Mahindra and Mahindra Finance Company. This is because the same was hypothecated with them. Then, the complainant also submitted his Claim Form to OP and requested to settled Personal Accident Claim.


    5. The OP inspite of submission of all the documents went on postponing the settlement of the claim. Finally on 07.09.2007, the claim of the complainant was repudiated on the ground of driver not having driving licence. OP contended that the driver had the licence to drive LMV vehicle and was not entitled to drive the vehicle in question. Hence, the complainant was constrained to file the said complaint. The complainant prays for Rs.2,00,000=00 towards Personal Accident Claim, Rs.25,000=00 towards mental agony and Rs.5,000=00 towards cost.


    6. After receipt of notice, OP appeared through Counsel and filed the objection to the said objection. In this, OP claims that the complaint is totally vexatious and frivolous and contrary to the law and facts of the case. However, OP admits about the Policy bearing No.1702372311100010 against the vehicle bearing No.MH-13/AC-1532. OP also admits at the time of the accident there was coverage of insurance. But, the said policy was issued to late Sri.Siddlingaswamiji Vikhatmath. The claim of Rs.2,000=00 towards Personal Accident, Rs.25,000=00 towards mental agony and Rs.5,000=00 for cost are all baseless. Mahindra and Mahindra Finance is a necessary party to the complaint. Hence, complaint deserves to the dismissed on the ground of non-joinder of necessary party. The driver of the vehicle was having valid driving licence to drive LMV tractor only. Hence, the claim of the complainant was not considered of the said repudiation by OP is legal and valid. OP had appointed surveyor immediately after the accident. But, due to the breach of Terms and Conditions of the Policy, the claim was repudiated and there is no deficiency in service rendered by OP to the complainant. Hence, OP prays to dismiss the complaint with compensatory cost.


    7. Both the parties have filed affidavit in lieu of evidence. Now the following points do arise for our consideration in deciding the case. They are: (i) Whether the OP has rendered deficiency in service to the complainant entitling him to the claim as is sought for? (ii) What Order?


    8. Our Findings to these points are as hereunder: i) Affirmative, ii) As per the operative portion of the Order here below.


    9. We shall substantiate our findings on the following:


    R E A S O N S


    POINT NO.1: The advocate for the complainant has filed in all 11 documents which are marked as Exhibit C1 to C11. Perused the documents.


    10. Exhibit C1, C3 and C4, C7 confirms the date of accident. Exhibit C5 is a PM Report of Late Sri. Siddalingswamiji who was the owner of the said Car. In this reason for the death of the owner when the car is noted as “I am of the opinion to the cause of the death due to shock, due to multiple boney and tissueal injuries. The times since death about 3-4 hours” This confirms the submission of the complainant that the deceased died due to the said sever accident on the spot.


    11. The main contention of the OP-Counsel is that the Policy was not issued to the complainant. However, the complainant has produced xerox copy of the bill Exhibit C11. According to Section 2 (1) (b) (v) the Act permits the Legal heirs to file the complaint. Hence, we rule-out the said Objection of OP and proceed on the merit of the case. 12. The objection of the OP in repudiating the claim of the Personal Accident Benefit is not having proper Driving Licence at the time of the accident resulting into violation of the provisions of LMV Act, 1988. However, it can be seen in the Policy issued by the OP under the heading “Drivers Clause” :- that “any person including insured, provided that a person driving holds effective driving licence at the time of the accident and is not disqualify from holding or obtaining such licence.” Exhibit C6 is a Driving Licence of the driver at the time of the accident and it is seen from the same that the driver was holding the proper Driving Licence to drive LMV tractor from 23.09.1995 to 22.09.2015 and also was having licence to drive heavy vehicles which was valid from 29.04.2003 to 28.04.2006. This means, the driver was also having licence to drive the HMV uptill 28.04.2006. It seems that the said Driving Licence is of HMV was not renewed. But, he was having valid licence to drive the LMV vehicle from the year 2000 of 28.04.2006 and also LMV tractor from 23.09.1995 to 22.09.2015. According to the Terms of the Policy, the driver should not be disqualified for holding or obtaining such a licence. From the xerox of the Driving Licence it is not nowhere noted that the driver is disqualified for holding or obtaining such type of licence.
    It means, the driver was having the necessary skill to drive the vehicle and also is not disqualified to drive the LMV vehicle. In addition, vehicle in question has unladen weight of 1000 KG which according to the judgement of Supreme Court (2008 Kant. M.A.C. 311 SC) in National Insurance Company V/s Annappa Irappa Nesaria and Others It is held that a driver having valid licence to driver Light Motor Vehicle authorized to drive Light goods vehicle as well. The goods carriage is one who’s unladen weight of the vehicle is less that 7500 KG’s.


    13. In the light of the said Judgement the repudiation of the Claim of the complainant is the deficiency in service rendered by the OP to the complainant. This is also because the vehicle in question is Tata Indigo which is a Light Motor Vehicle. Hence, we answer to Point No.1 in affirmative.


    14. POINT NO.2 : The complainant has prayed for Rs.2,00,000=00 towards the Accidental Policy, Rs.25,000=00 for mental agony and Rs.5,000=00 for cost of litigation. However, from the Policy condition, it can be seen that Owner – driver under Section 3 (Sum Insured) is Rs.2,00,000=00 and there is a deduction under Section 1 of Rs.500=00. Hence, the complainant is entitled to Rs.1,99,500=00 towards the Accident Claim from the OP. The complainant is also entitled to Rs.10,000=00 towards mental agony and Rs.2,000=0 towards cost of litigation. With these observations, we proceed to pass the following: O R D E R 1) The complaint of the complainant is partly allowed. 2) The OP is hereby ordered to pay Rs.1,99,500=00 (Rupees one lakh ninety nine thousand five hundred) towards Personal Accidental Benefit to the complainant within a period of 2 months of passing of this Order, failing which complainant is entitled to interest at the rate of 10% per annum from the date of filing of this complaint, till its entire realization. 3) The OP is also ordered to pay Rs.10,000-00 (Rupees ten thousand) towards mental agony & Rs.2,000-00 (Rupees two thousand) towards the cost of this litigation to the complainant. There is no order to pay interest towards the mental agony and also cost of litigation.
  • adminadmin Administrator
    edited September 2009
    Speaking through Smt.Meenakshi Kulkarni, Lady Member.


    1. This complaint is filed on 18.02.2009 as per Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the “Act”) against the Opposite Party (in short the OP) for awarding Rs.93,478=00 towards damage of vehicle, costs etc.


    2. The facts of the case in nutshell as is narrated by the complainant are as follows: The complainant is the owner of Maxi Cab Tata bearing Reg. No.KA-28/A-7122 and insured the said vehicle with OP under Policy No.1407772340009206 which is valid from 27.01.2008 to 26.01.2009. Unfortunately, on 25.09.2008 on Siggavi-Hubli NH-4 Road, the said vehicle met with an accident in which the vehicle was completely damaged. The said accident was registered in Tadas Police Station under Crime No.61/2008. The complainant intimated about the said accident to the OP and requested to conduct the Survey for determining the damaged suffered by the vehicle. Then he got his vehicle repaired under the directions of the OP with S.C. Motors, Belgaum who is an authorized dealer of Tata Motors. The complainant spend Rs.53,478=00 for purchase of spare-parts, lubricants and in payment of labour charges. Thereafter, he produced all the bills to the OP for indemnifying his damages. However on 03.02.2009, OP repudiated the claim of the complainant under the pretext of driver not having valid driving licence at the time of the accident. The said driver has a valid licence and the same was produced to the OP. Hence, not settlement of the valid claim of the complainant, is a deficiency in service rendered by the OP. The complainant prays for Rs.53,478=00 towards purchase of spare-parts, labour charges etc., Rs.5,000=00 towards expenses incurred by the complainant for lodging, Rs.25,000=00 for mental agony and Rs.10,000=00 for cost of proceeding thereby making a total of Rs.93,478=00.

    3. After receipt of the notice, OP appeared through his counsel. In the objections, OP claims that complaint of the complainant is totally vexatious and contrary to the law and facts of the case. However, OP admits about the valid policy of the complainant at the time of the accident. But, the OP completely denies the expenditure incurred by the complainant for repairing the vehicle of Rs.53,478=00 and also about the valid driving licence of the driver at the time of the accident. OP also denies all other expenses claimed by the complainant, such as expenses towards lodging, mental agony, cost of litigation etc. As per OP, the driver Sri. Ganesh Baburao Gotrale is having driving licence issued by R.T.O., Bijapur bearing No.1322/Bjp/2000 and this is valid from 21.03.2003 to 20.03.2006. The said driving licence was later on renewed with effect from 11.11.2008 to 10.11.2011 making it clear that driver did not have a valid licence as on the date of accident i.e. 24.09.2008. Inspite of this, Sri.Vinod Bhatkande who is the Surveyor and Loss Assessor Belgaum carried out the Survey and submitted his report under Report No.VIB/043/RGI/2008 dated: 17.12.2008. He also submitted his Re-inspection Report under bearing No.VIB/044/RGI/2008 on the same date. Not holding the valid and effective driving licence at the time of accident is clear violation of provisions under Motor Vehicle Act, 1998. Hence, OP is right in repudiating the claim of the complainant and accordingly, the repudiation letter dated: 03.02.2009 was send to the complainant by OP. No cause of action has arisen to file the said complaint. OP prays to dismiss the complaint with compensatory cost.


    4. The complainant has filed Written Arguments and 10 documents in support of his case which are marked as Exhibit C1 to C10. OP Counsel has filed 9 documents in support of his case which are marked as Exhibit OP1 to OP9. Both the parties have filed affidavit in lieu of evidence. Now the following points do arise for our consideration in deciding the case. They are: (i) Whether complainant is entitled to the relief as is sought for due to deficiency in service rendered by OP? (ii) What Order?


    5. Our Findings to these points are as hereunder: i) Affirmative, ii) As per the operative portion of the Order here below. 6. We shall substantiate our findings on the following:

    R E A S O N S


    POINT NO.1: The learned advocate for the complainant advanced the arguments as per the contention taken by him in his complaint and the written arguments. The advocate for OP advanced the argument as per the defence taken by the Objection Statement. We perused all the documents produced before this Forum.


    7. Exhibit OP1 and C2 are the Insurance Policies issued by the OP to the complainant. From this, it is very much clear that the Policy was inforce at the time of the accident. Exhibit C3 and OP2 are the R.C. Book of the vehicle. From which, it is clear that the complainant is the owner of the vehicle in question. Exhibit OP6 and C4 are the Driving Licence of the driver at the time of the accident. 8. There is no dispute between the parties about the name of the driver at the time of the accident being Sri. Ganesh Baburao Gotrale. The main contention taken by the OP is that the complainant’s driver did not have the valid driving licence at the time of the accident. We perused the xerox produced by both the parties and found no difference in the same. The said Driving Licence is issued by R.T.O. Bijapur bearing D.L. No.1322/2000. This is agreed by both the parties. The main contention taken by the OP-Counsel is that the driver of the complainant was not having valid and effective Driving Licence at the time of the accident. We compared the xerox copy of the Driving Licence produced by both the OP and the complainant. In this, it is found that the said Driving Licence is valid from 18.08.2000 to 31.05.2016 for Driving Motor Cycle with light Motor Vehicles. The accident has taken place on 24.09.2008. This means, the driver was holding the valid Driving Licence at the time of the accident.

    It is really amazing to note that how such an important point has gone un-noticed by the OP in settlement of the complainant’s claim. The objection raised by the OP-Counsel is that the renewal of the Driving Licence was on 11.11.2008 and was valid upto 10.11.2011 for Driving heaving transport vehicle. But, this renewal does not come in any way in settling the legal and valid claim of the present complainant in our hand. Because, the vehicle in question is Light Motor Vehicle and the driver is having the valid Driving Licence to drive the said vehicle. The vehicle in question is Light Motor Vehicle, because as per the R.C. Book which is Exhibit OP3, it can be seen that the unladen weight of the vehicle is 1000 KG.


    9. It is decided by the Supreme Court in 2008 Kant. MAC 311 (SC) in National Insurance Company V/s Annappa Irapppa. In this, it is held that: “the vehicle is considered to be as a Light Motor Vehicle who is unladen weight is less than 7500 KG’s.” In the present case in hand, the unladen weight is just 1000 KG. Hence, the repudiation of the claim on the ground of not having valid driving licence by the OP is the deficiency in service rendered b the OP to the complainant. This is because if the claim was settled by the OP in-time there was no need for the complainant to approach this Forum. So, the complainant is entitled to the claim as is sought for. Accordingly, we answer the Point No.1 in affirmative.


    10. POINT NO.2: In deciding as to how much compensation complainant is entitled? We goby the Survey Report produced by the OP-Counsel. In this, it is seen that OP was ready to settled the claim as Rs.32,656=46 rounded to Rs.32,656=00. The Survey Report is an important peace of document in settling the Insurance Claim. So we goby the same. The complainant has asked for Rs.25,000=00 for mental agony. There is no doubt that the complainant has undergone for mental agony and torture due to the non-settlement of his valid claim and negligence on the part of the OP by not checking thoroughly the documents produced by the complainant. Hence in our view, the complainant is entitled to Rs.10,000=00 towards mental agony. The complainant has not produced any documents towards his lodging expenses. Hence, the same is not granted. The complainant is also entitled for Rs.1,000=00 towards cost of litigation. With these observations, we proceed to pass the following: O R D E R 1) The complaint of the complainant is partly allowed. 2) The OP is hereby ordered to pay 32,656.00=00 (Rupees thirty two thousand six hundred fifty-six rupees) towards damage of the vehicle from the complainant within 2 months of passing of this Order, failing which complainant is entitled to interest at the rate of 10% per annum from the date of filing of this complaint, till its entire realization. 3) The OP is also ordered to pay Rs.10,000-00 (Rupees ten thousand) towards mental agony & Rs.1,000-00 (Rupees one thousand) towards the cost of this litigation to the complainant.
  • adminadmin Administrator
    edited September 2009
    The complainant has come up with this complaint for recovery of Rs.50,025/- by way reimbursement of medical expenditure from the opposite parties, on the ground that she had taken mediclaim policy, but the opposite parties have failed to reimburse it.
    Where as the opposite parties have taken a contention that the complainant despite informing on more than one occasion to submit a claim with necessary bills for considering her claim for reimbursement of the medical expenditure has not submitted the same, therefore when the claim of the complainant is not at all repudiated there is no cause of action for the complainant to file this complaint and thus has submitted for dismissal of the complaint. In the course of arguments the counsel representing the opposite parties made an offer to the complainant and even now if the complainant makes a claim with opposite parties with necessary hospital bills for reimbursement of the expenditure, the opposite parties are agreeable to scrutinize the same and take necessary action as per rules.

    At this stage the learned counsel appearing for the complainant did not dispute the fact that the complainant has not at all made any claim with the opposite parties by enclosing necessary documents. Having regard to this fact the complainant in our view is pre-mature, however we suggest that the complainant shall submit her claim to the concerned opposite parties with necessary hospital bills in compliance of the requirements for reimbursement of medical expenditure. On making such a valid claim by the complainant the opposite parties shall dispose of the claim of the complainant by way of reimbursement of hospital expense if it is found admissible within 30 days from the date of receipt of the claim of the complainant with this observation the complaint is disposed off accordingly.
  • adminadmin Administrator
    edited September 2009
    Complainant Smt.K.P.Shylaja, W/o Lingabasavaradhya, D.No.675/5, 23rd Cross, Hebbal, 2nd Stage, Mysore. (By Sri.M.Lokesh., Advocate)

    Vs.


    Opposite Parties 1. Manager / Proprietor, M/s Trident Automobiles Pvt. Ltd., No.201/1, and 201/2, Hinkal Village, Kasaba Hobli, Hunsur Road, Mysore-570017.

    2. M/s Reliance General Insurance Co.Ltde., (Anil Dhirubhai Ambani Groups), Branch Office situated at 1st Floor, Mysore Trade Centre, Opp. KSRTC Bus stand, Mysore-570001. (By Sri.Srivatsa.D.Hardar, Advocate for O.P.1 and Smt.K.L.Sugandhi, Advocate for O.P.2)

    Nature of complaint :

    Deficiency in service Date of filing of complaint : 18.12.2008 Date of appearance of O.Ps. : 03.02.2009 Date of order : 06.04.2009 Duration of Proceeding : 2 MONTHS 3 DAYS PRESIDENT MEMBER MEMBER Sri.D.Krishnappa, President


    1. The grievance of the complainant in brief is, that she purchased a new Chevrolet Tavera B2 Jeep from the first opposite party on 20.03.2008. That was insured with the second opposite party with effect from 20.03.2008 till 19.03.2009. That the said vehicle met with an accident on 08.07.2008 and F.I.R. came to be filed in this regard. The vehicle was given to the first opposite party for estimation of the repair, which was estimated at Rs.4,29,874.31 with additional sub estimation of Rs.60,862.07. The surveyor of the second opposite party assessed the damage to the vehicle and the second opposite party taking into consideration the assessment made by their surveyor have only paid Rs.2,35,930/- through first opposite party, but have failed to pay the balance amount of Rs.1,53,727/-.
    That the first opposite party raised the repair charges bill at Rs.3,89,657/- assuring that payment will be made, but the opposite parties failed to honour the claim as estimated, thus she was compelled to pay the balance of Rs.1,53,727/- and to get the vehicle delivered to her possession and therefore contending that the opposite parties have caused deficiency in their service has prayed for a direction to the second opposite party to settle the balance amount of Rs.1,54,070/- and to award compensation of Rs.1,00,000/- and other expenditure.


    2. The first opposite party in their version admitted to had sold the vehicle in question to the complainant and also that vehicle met with an accident. The first opposite party has also admitted payment of Rs.2,35,930/- as repair charges as forwarded by the second opposite party to the complainant, but stated that they are not aware of the second opposite party not settling the balance amount of Rs.1,53,727/-.
    This opposite party has also admitted that final bill of repair charges was raised to Rs.3,89,657/- and was sent to the second opposite party for settling, admitting that the complainant also made a request to settle the balance of Rs.1,53,727/- has denied any deficiency at their end and prayed for dismissal of the complaint against them.


    3. The second opposite party in their version have not disputed that the vehicle had been insured with them and had valid insurance policy as on the date of accident. They have also admitted to have settled the claim of the complainant to an extent of Rs.2,39,930/- and denied to have not paid Rs.1,53,727/-. By further contending that amount has been appropriated towards depreciation value and the salvage amount, which has to be born by the insured, has by further reasserting that after appropriation of the balance amount towards the above heads contend to have settled the claim by paying Rs.2,35,930/- and thus has prayed for dismissal of the complaint.


    4. In the course of enquiry into the complaint, the complainant and opposite parties have filed their affidavit evidence. The complainant has produced copy of the insurance policy, conditions of insurance and bills raised for having got the vehicle repaired. Opposite parties have also produced copies of the insurance and also bills. Heard the counsel for both the parties and perused the records.


    5. On the above contentions, following points for determination arise. 1. Whether the complainant proves that the second opposite party has caused deficiency in their service in not settling the claim in terms of insurance policy and thereby have caused deficiency in their services? 2. To what relief the complainant is entitled?

    6. Our findings are as under:- Point no.1 : In the Affirmative. Point no.2 : See the final order.


    REASONS

    7. Point no. 1:- As could be gathered from the contentions of all the parties, there is no dispute with regard to the fact that the vehicle purchased by the complainant from first opposite party was insured with second opposite party and that the vehicle met with an accident within 6 months from the date of sale and it had valid insurance as on the date of the accident. The complainant and first opposite party have concurred with each other that the complainant incurred repair expenditure of Rs.3,89,657/- and when the claim for reimbursement of the same was made with the second opposite party the insurer, but, the insurer has only reimbursed Rs.2,35,930/- and declined to reimburse the balance of Rs.1,53,727/- on the ground that balance is adjusted towards policy excess, consumable items and towards salvage. But, the counsel for the complainant inviting our attention to the undisputed fact that the vehicle met with an accident within 6 months from the date of its sale, further also referred to the conditions of the insurance, which provide no depreciation for the vehicle of that age. Further he also invited our attention regarding reimbursement of the cost of consumable items like rubber, and other similar items, wherein the conditions provide for reimbursement of 50% of the cost of the consumable articles, if the accident had taken place within 6 months and therefore submitted that the second opposite party is not justified in not reimbursing the balance amount and thereby as sought for the relief has prayed for.


    8. Whereas the counsel appearing for the second opposite party without disputing the submission of the counsel for the complainant regarding the age of the vehicle, reimbursement of 50% of the consumable article cost as per the conditions of policy argued that the surveyor of second opposite party who after inspecting the damaged to the vehicle has assessed the total loss as Rs.2,49,442.78 deducted cost of salvages and the cost of consumable articles and has recommended for payment of Rs.2,35,930/- only and that has been paid by the second opposite party to the complainant and further submitted that report of the surveyor cannot be rejected and in support of her arguments relied upon a decision reported in IV (2007) CPJ page 196 NC and submitted for dismissal of the complaint. We agree if a surveyor has prepared the report of damage assessment by considering the factual aspects and in accordance with the conditions of license it may be accepted. But, in the instant case, the surveyor deducted depreciation, which is not permissible under the condition of the policy itself. Because under the condition of policy, if the age of the vehicle has not exceeded 6 months, depreciation is shown as Nil, therefore when the age of the vehicle in question had not exceeded 6 months, he should not have allowed depreciation.
    Similarly, depreciation with regard to all rubber, nylon, plastic parts, tyres, tubes, batteries etc., of the vehicle, who age has not exceeded 6 months is shown as 50%. That being so the surveyor has allowed depreciation against the conditions of policy, which cannot be done.

    Thus the complainant is entitled for 50% of the consumable articles cost, plus labour charges. Therefore, even according to the report of the surveyor, total parts cost inclusive of taxes and other levies is shown as Rs.9,49,422.77, if labour charges of Rs.52,893.49 is added and 50% to the consumable articles cost like rubber, nylon etc., which is estimated at Rs.85,051.58 as per the bills, and if 50% is allowed it would come to Rs.42,500/-. If these 3 figures are added it comes to Rs.3,44,836.25, out of this, the second opposite party has already paid Rs.2,35,930/.

    The complainant has conceded that salvage cost is estimated at Rs.16,000/- and that he has received salvages from the garage concerned and if that is deducted from the amount payable by second opposite party, the net amount payable to the complainant by second opposite party is Rs.92,906.25, for which the complainant would become entitled and thus the second opposite party in our view has caused deficiency in the service in not paying that amount. With this, we answer point no.1 in the affirmative and pass the following order:-


    ORDER

    1. The Complaint is allowed.

    2. The second opposite party is directed to pay Rs.92,906.25 within 60 days from the date of this order, failing which it shall pay interest at 9% p.a. from the date of this order till the date of payment.

    3. The second opposite party shall also pay cost of Rs.1,000/- to the complainant.

    4. Complaint against the first opposite party is dismissed.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    Mrs Rajni Devi wife of Sh.Veer Chand resident village Aleo , Post Office Manali, Tehsil Manali, District Kullu,H.P.

    …Complainant


    V/S

    Reliance General Insurance Company Limited through its Branch Manager Branch Office 126/2 First Floor Ram Nagar Near Namdhari Gurdwara, Mandi District Mandi, H.P.

    …..Opposite party

    For the complainant Sh. Rakesh Bodh ,Advocate
    Vice Sh. Roshan Lal.Thakur, Advocate
    For the opposite party Sh. R.K Thakur, Advocate vice
    Sh.Vishwa Raj 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 owner of vehicle No. HP-01K-1488 ( Sumo Spacio) The complainant insured the said vehicle with the opposite party and the insurance was valid with effect from 17-4-2007 to 16-4-2008.During the currency of the insurance policy, said vehicle met with an accident on 4-9-2007 at Rahni Nalla Manali and the same was totally damaged . The matter was reported to the Police Station Manali and on 4-9-2007 First Information Report No.252 was recorded . The Surveyor of the opposite party visited the spot and all the relevant documents were also handed over to the Surveyor at that time but the opposite party did not settle the claim. The complainant served the opposite party with legal notice dated 10-7-2008 to settle the claim but the same had not been settled till date It had further been alleged that the non settlement of the claim is deficiency in service as the opposite party is legally bound to settle the claim . With these averments , the complainant had sought a direction to the opposite party to pay Rs.3,90,000/- for loss of the vehicle and a sum of Rs.50,000/- on account of harassment and Rs.5000/- as cost of litigation.


    2 The opposite party resisted the complaint by filing reply in which preliminary objections have been raised that the present complaint is not maintainable , that there is no deficiency in service on the part of the opposite party and that the complainant did not comply with the claim formalities , hence the claim was closed.. On merits, the opposite party had averred that the complainant has not complied with the claim formalities despite repeated requests by the opposite party and hence the claim was ultimately closed vide letter Annexure O.P-1. The opposite party has pleaded that the loss assessed by Surveyor was to the tune of Rs.2,84,000/- on net of salvages basis subject to the satisfaction of terms and conditions of the insurance policy . The opposite party has averred that relief claimed is highly exaggerated and without any basis and there is no other authentic proof of loss except for the Surveyor report. The opposite party had prayed for dismissal of the complaint .



    3. We have heard the ld. counsel for the parties and have carefully gone through the entire record. Be it stated that the opposite party in its reply has not denied the factum of insurance of the vehicle in question and its accident. The opposite party has also not denied that the information in this regard was given to it . The opposite party has rather averred that the surveyor had recommended the loss on net of salvage basis in the sum of Rs.2,84,000/- subject to terms and conditions of the policy. As per the complainant, the claimed lodged by him has not been settled. On the other hand, the opposite party had pleaded that the claim was closed as No claim as the complainant has not complied with the claim formalities despite repeated requests. The opposite party had pressed into service letter dated 30-10-2008 Annexure O.P-1 vide which the claim was repudiated. Strangely enough , the letter vide which the claim was repudiated as per the reply of the opposite party, the same has been addressed to one Shiv Khal Bhandar , Panipat and not to the complainant. In the said letter Annexure O.P.1 it has been written as under:-


    “ We would like to draw your attention to all our previous letters dated 29/0/2008, 8/10/2008 and 20/10/2008 with reference to the above claim. We regret to inform you that till date we have not received requisite documents inspire of repeated reminders and presume that you are no longer interested in the claim. We are therefore constrained to file this claim as closed. ….”



    The opposite party had even failed to adduce in evidence alleged letters dated 29-9-2008, 8-10-2008 and 20-10-2008 written to the complainant. The bald assertion of the opposite party cannot be considered as gospel truth that the complainant has not complied with the required formalities . We find a good deal of substance in the version of the complainant that the claim has not been settled by the opposite party till date and the version of the opposite party is an after thought. The opposite party has been deficient in rendering service to the complainant as just and legitimate claim of the complainant has not been settled without any reason.



    4 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 the assessment of the loss on total loss basis i.e. insurance sum. On the other hand ,the opposite party has admitted in his reply on merits and stated that the surveyor has recommended the loss on net of salvages basis at Rs.2,84,000/- which is payable subject to the terms and conditions of the policy .The report of surveyor is dated 25-1-2008 Annexure OP.2 The perusal of the report depicts that he had recommended the loss at Rs.2,84,000/- on net of salvage basis . The opposite party has also adduced in evidence the affidavit of Surveyor Sh. Kailesh Chandre dated 20-3-2009 in which he has specifically deposed that indemnity has been recommended at Rs.2,84,000/- on net of salvages basis. The complainant had not adduced any evidence contrary to the report of Surveyor .Moreover 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 Kiran Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is at Rs.2,84,000/- on net of salvage basis



    5 The complainant had claimed Rs.50,000/- as compensation on account of harassment and mental tension, 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 on this score . Hence , It would be in the interest of justice ,if we award a sum of Rs.10,000/- as compensation.





    6 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.2,84,000 /- alongwith interest at the rate of 9% p.a. from the date of filing of the complaint till realization to the complainant The opposite party is further directed to pay Rs.10,000/- as compensation on account of harassment and Rs.5000/- as costs of litigation.
  • SidhantSidhant Moderator
    edited September 2009
    Shri Kuldeep Singh



    … Complainant.

    Versus



    The Reliance General Insurance Company Ltd.



    …Opposite Party.


    O R D E R:

    Pritam Singh (District Judge) President (Oral):-


    1. The case is today fixed for the evidence of the OP-Company, but it maybe stated that the defence of the OP-Company has already been struck off by this Forum vide order dated 22/12/2008. As no reply on behalf of the OP-Company is on record, therefore, the OP-Company has no right to lead the evidence, without their reply on record. Hence, we heard the learned counsel for the complainant and also perused the record of the case.


    2. It is the case of the complainant that the vehicle bearing registration No.HP-01A-1289 owned by the complainant was duly insured with the OP-Company for sum of Rs.4,99,000/- w.e.f. 26.03.2007 to 25.03.2008. It is further case of the complainant that during the currency of the insurance policy the vehicle in question met with an accident on 10.10.2007 when it was on its way from Jangla to Thalli and it sustained extensive loss. FIR to this effect was lodged at Police Station Chirgaon and the insurance claim was also preferred with the OP-Company. That thereafter, the vehicle was got repaired at the instance of the OP-Company from the authorized dealer by incurring Rs.54,410/- . But the OP-Company neither settled his insurance claim nor sent any intimation to the complainant in this behalf.


    3. As the OP-Company has not filed the reply and their right to file the reply was closed by order of the Forum, on 12.12.2008. However, the undisputed position is that the vehicle in question was duly insured with the OP-Company vide insurance cover note Annexure P-2, which met with accident and FIR vide Annexure P-4 was also lodged at Police Station Chirgaon. That the vehicle in question sustained extensive damages, therefore, it was got repaired from the authorized dealer and the repair bills Annexure P-6 to the tune of Rs.54,410/- are also placed on record by the complainant. In addition to this, the complainant has also filed affidavit in support of the allegations contained in the complaint.


    4. As such, the oral and documentary evidence led on record by the complainant remained unrebutted, therefore, we are constrained to hold that the genuine insurance claim of the complainant was not settled by the OP-Company without any reasonable & just cause, which act on the part of the OP-Company amounts to deficiency in service and unfair trade practice and complainant is entitled to be indemnified by the OP-Company for the loss.


    5. Resultantly, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs.54,410/- alongwith interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 13.03.2008 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.
  • SidhantSidhant Moderator
    edited September 2009
    Devanam Venkata Ranga Rao,
    S/o Srinivasa Rao, Business, D.No.48-2-4,
    1st line, Ranguthota, Ongole, Prakasam District.
    ... Complainant.
    Vs.

    M/s Reliance General Insurance Company Limited,
    rep., by the Branch Manager, 40-1-21/11,
    Surya Towers, 3rd floor, N.G. Road,
    Labbi Peta, Vijayawada, Krishna District.
    …Opposite party.

    ORDER:

    This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 against the opposite party.

    1. The averments in the complaint are as follows: The complainant is the owner of TATA Indica DLS bearing No.AP 27 N 0640 and the same was insured with the opposite party and the policy was inforce from 19.05.2008 to 18.05.2009. When the policy was inforce the vehicle met with an accident on 27.05.2008 and the same was informed to the opposite party. The opposite party appointed a surveyor to assess the damage and the surveyor inspected the vehicle and assessed the loss of damage to the vehicle. Subsequently, the opposite party did not settle the claim. The complainant get the vehicle repaired at Padmavathi Motors, Nellore spending Rs.20,271/-. The complainant filed the present complaint for recovery of the amount spent for repairs and also for compensation and costs of litigation.


    2. The opposite party though served with summons did not choose to appear before the forum and remained ex-parte.

    3. On behalf of the complainant Exs.A1 to A3 were marked. Ex.A1 is the Insurance policy issued by Reliance General Insurance dated 19.05.2008. Ex.A2 is the Cash Bill issued by Padmavathi Motors, Nellore dated 16.06.2008. Ex.A3 is the legal notice issued to the opposite party by the complainant dated 19.02.2009.

    4. The point for consideration is whether the complainant is entitled for the claims made in the complaint.

    5. Ex.A1 is the policy and Ex.A2 is the cash bill issued by Padmavathi Motors, Nellore towards the repairs effected to the vehicle. The complainant issued notice to the opposite party under Ex.A3 calling upon the opposite party to pay the amount spent towards repairs and inspite of the notice, the opposite party did not choose to settle the claim of the complainant. It amounts to deficiency on the part of the opposite party and the opposite party is liable to pay the amount as claimed by the complainant.

    6. In the result, the petition is allowed directing the opposite party to pay Rs.20,271/- with interest at 9% to the complainant from the date of petition till the date of reliasation. The complainant is also entitled to receive Rs.2,000/- as compensation for mental agony and Rs.1,000/- towards costs of litigation from the opposite party.
  • SidhantSidhant Moderator
    edited September 2009
    Surinder Sharma aged 60 years son of Goverdhan Dass r/o vill Hajipur Distt. Hoshiarpur.

    vs.

    1.

    Reliance General Insurance Co. ltd. Jalandhar Ist Floor Rattan Tower Civil Lines near Nam Dev Chowk Jalandhar through its General Manager.
    2.

    Reliance General Insurance S.C.O. 212-213-214 Sector 34-A Chandigarh through its General Manager.
    3.

    Kotak Mohindera Prime Ltd Jalandhar through its Manager.

    1.

    The complainant namely Surinder Sharma has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant got insured his car bearing registration no. PB-07-T-4171 with OP No.1 from 19.5.2007 to 18.5.2008.
    2.

    It is the case of the complainant that said vehicle was going from Mukerian to Hajipur on 13.5.2008. The vehicle at that time was being driven by Sumit Sharma-the son of the complainant. When the said vehicle reached near Dhir Poultry Farm, G.T.Road, it met with an accident. The vehicle got damaged. The intimation to P.S.Hajipur was given. The complainant got repaired the vehicle from Dada Motors, Jalandhar- authorized dealer of General Motor India Pvt. Ltd. and paid Rs. 1,58,720/- for the repair of the vehicle vide invoice no.7984 dated 28.5.2008 against receipt. Besides this, the complainant also spent Rs.5000/- . The complainant completed all the requisite formalities and lodged the claim with OP No.1,2.
    3.

    It is the allegation of the complainant that OP No.1,2 illegally repudiated the claim vide letter dated 21.7.2008. the complainant never used the vehicle as taxi. The repudiation of the claim is stated to be illegal, hence this complaint.
    4.

    OPNo.1,2 filed the joint reply Preliminary objections with regard to suppression of material facts was raised. On merits, the claim put forth by the complainant has been denied. It is admitted that the vehicle in question was insured with the replying OPs. It is also admitted that the claim was lodged. It is denied that the complainant spent the amount of Rs.1,58,720/- and Rs.5000/- . That as per terms of the insurance policy, the vehicle insured with the replying OPs could not be plied for hire and reward and the insured was bound to comply with the said terms and conditions. The matter was duly investigated and it transpired that the vehicle was being plied for hire and reward at the time of accident in breach of the terms and conditions i.e. 'limitation as to use', therefore, the claim of the complainant was repudiated vide letter dated 21.7.2008.
    5.

    OP No.3 filed a separate reply. On merits, the claim put forth by the complainant has been denied. However it is replied that the vehicle in question was hypothecated with the replying OP. . That no claim has been made against the replying OP.
    6.

    In order to prove the case, the complainant tendered in evidence his affidavit Ex.C-1, invoice Mark C-2, invoice dated 28.5.08 Mark C-3, invoice for Rs. 1,57,820/- Mark C-4, invoice dated 20.5.08 Mark C-5, RC Mark C-6, DD Mark C-7, letter dated 21.7.08 Mark C-8, insurance policy Mark C-9 and DL verification Mark C-10 and closed the evidence.
    7.

    In rebuttal, the opposite parties Nos.1,2 tendered in evidence affidavit of Satyan Kapoor Ex. OP-1, claim cost Mark OP-2 and report Mark OP-3 and closed the evidence. The OP No.3 tendered in evidence affidavit of Vishal Anand Ex. OP-4 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 case of the complainant is that on 13.5.2008, the vehicle bearing registration no. PB-07-T-4171, which was insured with OP No.1 from 19.5.2007 to 18.5.2008, met with an accident and got damaged. The complainant got repaired the vehicle and paid Rs. 1,58,720/- vide invoice no.7984 dated 28.5.2008 against receipt and besides this, the complainant also spent Rs.5000/- .
    10.

    It is the allegation of the complainant that Insurance Company illegally repudiated the claim vide letter dated 21.7.08. The OPs have raised the defence that the insured vehicle could not be plied for hire and award.
    11.

    The claim was repudiated by the Insurance Company qua Mark C-8 on the ground that the vehicle was being plied for hire and reward at the time of accident in violation of the Motor Vehicle Act and policy clause 'limitation as to use', therefore, the claim was not within the purview of coverage of policy, as such, it was treated as closed claim .
    12.

    The other facts are admitted.
    13.

    Now the only point which calls determination from this Court is whether the vehicle was being plied for hire and reward at the time of accident in violation of the terms and conditions of the policy Mark C-9 ? The answer to this is in the negative.
    14.

    Since the OP No.1,2- Insurance Company has repudiated the claim on the ground that the vehicle was being plied for hire and reward at the time of accident in violation of the terms and conditions of the policy, therefore, it was for the Insurance Company to prove that the claim was not payable as it was not within the purview of coverage of Insurance Policy and was rightly treated as closed claim..
    15.

    The Insurance Company has only filed the affidavit of Satyan Kapoor, Manager Legal Ex. OP-1 in support of the said defence . The perusal of the record makes it clear that there is no other evidence available on the record to prove that the vehicle was being used for hire and reward, thus, OP No.1 and 2-Insurance Company was not justified in repudiating the claim, which amounts to deficiency in service.
    16.

    Admittedly, the complainant has placed on record repair invoices Mark C-2 to C-5 but has not produced on record the receipt towards the payment of Rs.1,58,720/- to Dada Motors nor has submitted any affidavit of the authorized representative of Dada Motors in support of the bills/ invoice Mark C-2 to C-5, therefore, it looses its evidentiary value and on the contrary, the OP has placed on record the report of the surveyor Mark-OP-3 qua which the loss to the vehicle in dispute had been assessed to the tune of Rs.1,29,894/-. Since the complainant has failed to produce the receipt to prove the payment of Rs.1,58,720/- to Dada Motors , therefore,the report of the surveyor qua Mark-OP-3 is to be accepted as the surveyor is an expert and also an independent person to assess the damage caused to the vehicle of the complainant , thus, we are of the opinion that the claim of the complainant can be allowed on the basis of the survey report Mark-OP-3.
    17.

    As a result of the above discussion, the complaint is accepted and the opposite parties Nos 1 and 2 are directed to pay Rs. 1,29,894/- to the complainant with interest @ 9 % per annum from the date of filing the complaint i.e. 27.1.2009 till realization alongwith litigation expenses of Rs.1000/- within one month from the receipt of copy of the order.
  • SidhantSidhant Moderator
    edited September 2009
    The complaint in brief is as follows:- The Complainant purchased a cow at the price of Rs.30,000/- and it was insured by the Opposite Party. The purchase of the cow was effected by the loan provided by the Indian Overseas Bank Branch at Kalpetta. The sum assured for the insurance was Rs.20,000/- and more over the policy of the sum insured was not given to the Complainant. On enquiry the Opposite Party apprised the Complainant that the policy would be issued to the bank which has given the loan. The cow was nurtured well and good. On 21.08.2008 the cow was died in connection with ailment for which the treatment was given by the veterinary doctor named Dr. Prabhakaran. The death of the cow was immediately informed to the Opposite Party and the agent. Later postmortem was conducted as per the direction of the insurer. The Complainant approached the Opposite Party with all the relevant documents as directed by the Opposite Party to honour the claim. The Opposite Party instead of granting the amount repudiated the claim and a letter in that effect was given to the Complainant dated 19.9.2008. The claim repudiation of the Opposite Party is absolutely a deficiency in service, the insurer is liable to pay the Complainant the sum insured Rs.20,000/- along with the interest at the rate of 12% from the date of filing the claim till realisation. There may be an order directing the Opposite Party to pay the claim amount Rs.20,000/- along with interest at the rate of 12% from the date of filing the complaint the payment is done.

    2. The Opposite Party was served notice and no version was filed even after the expiry of the stipulated time. The Opposite Party is declared exparte.

    3. The points in consideration are:-

    1.

    Whether any deficiency on the part of the Opposite Party?
    2.

    Relief and cost.

    4. Point No.1 and 2:- The point No.1 and 2 are considered together the Complainant filed proof affidavit, Ext.A1 photocopy of the Cattle Insurance Policy along with the terms and conditions. The premium of the policy for the sum insured is Rs. 2,697/- the policy covers the period from 25.9.2007 to 24.9.2010. It is also avered in the affidavit by the Complainant that the postmortem certificate bills related to the purchase of medicines and ear tag along with other documents were sent to the Opposite Party to honour the claim of the Complainant. The repudiations of the claim is also avered in the affidavit. The Opposite party has not inter alia contented the reason for the rejection of the claim not even by filing version. On the ground of the this reason it is found that the Opposite Party's rejection of claim is against reasons and absolutely a deficiency in service. The Complainant is to be compensated with the claim amount along with interest from the date of filing this complaint.

    In the result the complaint is allowed. The Opposite Party is directed to compensate the Complainant Rs.20,000/- (Rupees Twenty thousand only) the sum insured along with interest at the rate of 12% from the date of filing the claim till realization. The Complainant is also entitled for the cost of Rs.500/- (Rupees Five hundred only). The Opposite Party is directed to comply with this order within one month from the date of receiving this.
  • SidhantSidhant Moderator
    edited September 2009
    1. M/s Venus Industrial Corporation, 424, Industrial Area-A, Ludhiana through its partner Sh.Ashok Gupta.

    2. Ashok Gupta partner M/s Venus Industrial Corporation, 424, Industrial Area-A, Ludhiana.

    (Complainants)

    Versus

    Reliance General Insurance Company Limited having its branch Office at 7th Floor, Surya Towers, 108, The Mall, Ludhiana through its branch Head/Manager/Vice President.
    (Opposite party)
    O R D E R
    1. In the present complaint under section 12 of the Consumer Protection Act, 1986, direction sought against the opposite party by the complainant is to order them to pay Rs.5,00,000/- after setting aside the repudiation letter dated 30.8.2007 of the opposite party. Have also claimed compensation of Rs. 50,000/- and litigation cost, for causing harassment, agony and sufferance to them.

    2. Complainant no.2 is partner of complainant no.1 firm. Complainant had taken “Industry Care Policy” vide policy no. 20-26-15-00742-06 from opposite party, valid from 19.5.2006 to 18.5.2007. The policy covered ‘Standard Fire & Allied Perils, ‘Burglary and House breaking contents’ and ‘Money Insurance’. Consolidated premium of Rs.16,275/- was paid to the opposite party. Complainants for the purpose of business intended to purchase second hand machinery from Delhi, for their industrial plant and complainant no.2 was assigned duty to purchase such machine. He consequently on 26.12.2006, withdrew Rs.5,00,000/- from the bank account of the firm of complainant no.1. But could not visit Delhi till 7.1.2007, on account of business pre-occupations.

    Hence, on 7.1.2007 carried cash of Rs.5,00,000/- in his car to Delhi for purchase of machine. On 8.1.2007, complainant no.2 on his way for purchase of industrial machine stopped at Connaught Place, New Delhi and left the bag containing Rs.5,00,000/- in the car under the care and custody of his driver for short time. On coming back, was apprised by the driver that the bag containing cash was stolen from the car, regarding which FIR was lodged immediately with Connaught Place, Police Station, New Delhi . On coming to Ludhiana, claim was lodged with the opposite party to indemnify the loss suffered under the insurance policy. All necessary documents and bills were furnished. Assistance provided to the opposite party from time to time.

    Opposite party instead of settling the claim, repudiated it vide letter dated 3.8.2007 on the grounds that “money collected by the insured or the authorised employee of the insured whilst in transit to the insured’s business premises or bank shall not remain in their personal custody for more than 48 hours” and that “Moreover, you remain unable to prove that the money lost was withdrawn for official use.” This repudiation letter is assailed to be illegal, null and void. Claimed that Rs.5,00,000/- were withdrawn from account of the firm with H.D.F.C. Bank for the purchase of machinery when theft was committed. Hence, entitled to be paid the loss under the insurance policy.

    3. Opposite party contested the complaint on the ground that the complainant is not entitled to file complaint as policy was for commercial purpose. This Forum has no jurisdiction to try the same. They denied existence of deficiency in service or negligence on their part. Obtaining of insurance policy by the complainant, lodging of claim under the policy and repudiating the same has been admitted. They have justified repudiation to be legal under the policy.

    It is averred that on receipt of claim from the complainant, it was entertained, processed and got investigated from IPSO FACTO. On receipt of report from them, M/s Duggal Gupta Surveyors Pvt. Ltd. were engaged to investigate the claim. After scrutinizing the documents of the claim, applying their mind, claim was rightfully and legally repudiated under terms and conditions of the policy vide letter dated 3.8.2007. So, the complainant having no cause against the opposite party, complaint deserves to be dismissed.

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

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

    6. Let us outrightly analyze the grounds conveyed by the opposite party to the complainant vide letter dated 3.8.2007 (Ex.P1) to repudiate the claim. But before venture to do so, would like to high light admitted aspects that complainant had taken insurance policy from the opposite party and under the policy after theft of Rs.5,00,000/- lodged claim. Opposite party engaged IPSO FACTO investigator and also appointed M/s Duggal Gupta Surveyors & Loss Assessors, on receipt of report from them, claim as accordingly repudiated.

    7. Reasons conveyed to the complainant under repudiation letter Ex.P1 are as under:

    “This is reference to your claim intimation dated 10.1.2007 about loss of cash of Rs.5 lacs during your visit to Delhi and further deputation of our investigator M/s IPSO FACTO & M/s DUGGAL GUPTA SURVEYORS P. LTD. for investigation and verification of your books of accounts.

    Now, we have received investigation reports from our investigators and while scrutinizing the same we observed that the an imprest of 5 lacs was withdrawn by Mr. Ashok Gupta, Partner on 26.12.2006 as per books of accounts of your company and was kept lying in his personal custody till the date of loss i.e. 08.01.2007 as per written statement of Mr. Gupta dated 16.01.2007.

    As per Industry care policy issued to you, under section VI-Money Insurance against point no.3 it is warranted “Money collected by the insured or the authorised employee/s of the insured whilst in transit to the insured’s business premises or bank shall not remain in their personal custody for more than 48 house.”

    Moreover, you remain unable to prove that the money lost was withdrawn for official use.

    In view of the above, we are constrained to repudiate the above said claim.

    Please feel free to contact the undersigned in case of any query.”

    8. So, bare look of letter Ex.P.1 goes to show that opposite party on the basis of report of its surveyor had concluded that amount of Rs.5,00,000/- was withdrawn by complainant no.2 on 26.12.2006 as per books of account of complainant firm, which amount was lying in personal custody till loss on 8.1.2007. Main reason of repudiation, as such, was that he kept the amount in personal custody for more than 48 hours in contravention of section VI , Point no.3 of the Insurance Policy and secondly be failed to prove that money was withdrawn for official use.

    9. It is in these circumstances that necessity has arisen to look into the terms and conditions of the insurance policy, copy of which is Ex.R28. Section VI of the policy titled “Money Insurance” is relevant. Sub section II of section VI deals in What is covered under the policy. This reads as under:

    This section covers loss of money relating to insured’s business due to accident or misfortune

    a) While in transit,

    b) From safe at the Insured’s business premises,

    c) From till at the Insured’s business premises.

    10. Sub section 3 of section VI is titled as “warranty”. This warranty is to the following affect:

    a) It is warranted that the Insured shall maintain and keep a complete account of money in a safe, cupboard or cash box under lock and key at places other than the place where the money covered is kept. The liability of the Company shall be limited to the account actually shown by such records not exceeding the amount states in the Schedule.

    b) It is also warranted that money collected by the Insured or the authorised employee/s of the Insured whilst in transit to the insured’s business premises or bank shall not remain in their personal custody for more than 48 hours.

    11. According to ld. counsel for the complainant, money was withdrawn by the complainant no.2 from the account of complainant no.1 for business purpose for purchase of old machinery from Delhi. But due to pre-occupation immediately could not go to Delhi. He went to Delhi on 7.1.2007 and for purchase of machinery left on 8.1.2007. On way stopped at Connaught Place, New Delhi, keeping the bag containing cash in the car, which was stolen from there. So, theft occurred of the money while in transit. Therefore, the Insurance Company would be liable under the policy to pay the amount as theft was fully proved of the money carried by complainant no.2 for purchase of machinery for opposite party no.1.

    12. Whereas on behalf of opposite party they supported repudiation letter on the ground that claim was rightfully and legally repudiated, as complainant acted in contravention of terms and conditions of sub section 3 (b) of section VI of the policy by keeping money in personal custody by complainant no.2 for more than 48 hours.

    13. We have considered rival contentions of the parties and given our utmost consideration to conditions of the policy Ex.R.28 governing the parties. We feel that application of sub section 3 (b) of section VI of the policy has been wrongly applied by opposite party for repudiating the claim. Because that provision is not at all attracted to the facts of the case in hand. Because that provision is applicable only qua money “collected by the insured or authorised employee/s of the Insured whilst in transit to the Insured’s business premises or bank shall not remain in their personal custody for more than 48 hours.”

    14. In the present case, money was neither collected by complainant no.2 or authorised employee of the firm of complainant no.1, nor such money was in transit to business premises of the complainant or the bank. Money which was collected must have been collected from other source. Such collected money can only be kept by the insured for a period not more than 48 hours. In the instant case, the case of the complainant is that the money was withdrawn from account of complainant no.1 from the bank, which aspect was not disputed by investigator of the opposite and complainant was able to prove the same by placing material on the record in the shape of statement of account Ex.P.5.

    15. Whereas section VI of the policy covers, loss of money related to insured’s business due to accident or misfortune while in transit (emphasis laid). In the instant case, money of the complainant no.2 related to his business when theft was committed. The money was in transit. This clause is not supplemented or made subject to condition that such money in transit can not be kept in personal custody for more than 48 hours, as was the condition under sub section 3 (b) of the policy. Section VI, sub section 2 is independent of sub section 3.

    Both are to be read separately. Therefore, it means that there was no condition for money in transit to be kept beyond 48 hours in personal custody. That condition of keeping money in personal custody for not more than 48 hours applies only to the money collected by the insured or his authorised employee while in transit to the insured’s business premises or bank. Only that money was required to be kept in personal custody for not more than 48 hours. That provision was wrongly made applicable by opposite party to the case in hand. As it was not covered thereunder.

    16. Second ground of repudiation was failure of the complainant to prove that money was withdrawn for official use. Complainant in his affidavit Ex.CE1/A has stated that he withdrew money from account of the firm for purchase of machinery and could not go immediately on withdrawal from bank account. When on 7.1.2007 went to Delhi, theft was committed on 8.1.2007 at Connaught Place, New Delhi, qua which he had also intimated to the opposite party and also lodged FIR Ex.R.2 under section 379 IPC in Connaught Place, Police Station, New Delhi. Opposite party had engaged M/s Duggal Gupta Investigator, who vide report Ex.R.4 had found accounts of the firm of the complainant to be correct and also affirmed allegations of theft of currency notes Rs.5,00,000/- from the bag. Cash book of the firm of the complainant no.1, copy of which is also Ex.R.14, also corroborate that report along with certificate Ex.R14/A of the HDFC Bank.

    17. Moreover, M/s IPSO FACTO in their investigation report Ex.R.16 and R.17 had also affirmed theft allegations of the complainant and that Rs.5,00,000/- were withdrawn by complainant no.2 from the account of complainant no.1 firm on 26.12.2006, which amount was kept in personal custody in Almirah till 7.1.2007. In these circumstances, we feel that the repudiation of the claim by the opposite party in such circumstances is not at all justified and proper. Because no condition of the Insurance Policy was infringed by the complainant. Conditions of the policy were wrongly interpreted by the opposite party. Hence, by not releasing the claim, opposite party would be guilty of not rendering proper services to its own consumer.

    18. Hence, for such deficiency on the part of opposite party, it is evident that they wrongfully and illegally repudiated the claim of the complainant. Therefore, we allow the complaint and as a result of which direct the opposite party to pay claim of Rs.5,00,000/-(Rs. Five Lacs only) under the policy to the complainant within 45 days of the receipt of copy of the order, and also to pay compensation of Rs.10,000/-(Rs.Ten Thousands only) for causing harassment, mental tension and agony and litigation cost of Rs.3000/-(Rs. Three Thousands only).
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    Katta Govinda Rao, S/o K. Varahalu Hindu, aged 24 years, R/o D.No.44-27-55/1, Railway New Colony, Near Yasodha Talent School, Viskahapatnam – 530 016.

    … Complainant

    1. The Branch Manager, Reliance General Insurance Co. Ltd., 3rd Floor, Eswar Paradise, Dwarakanagar, Visakhapatnam – 530 016.

    2. Manager, Relaince General Insurance Co. Ltd., Regd. Office at Reliance Centre, 19 Walchand Hirachand Marg, Ballard Estate, Mumbai – 400 001.

    ... Opposite Parties

    : O R D E R :

    1. The complainant is the owner of Tata Indica Car bearing No.AP16AD3337. He took an Insurance Policy from opposite party bearing No.1802382311100038 covering a period from 10-12-2007 to 09-12-2008. Further he converted the car into a public carrier i.e., Tax and applied for a fresh policy and he was given a fresh policy bearing No.1802172338711325 covering period from 01-03-2008 to 28-03-2009. It is complained that he demanded for the refund of the earlier policy amount from the 1st opposite party inspite of registered notice did not refund. Hence this complaint that this failure to refund the insurance premium in toto or proportionately amounted to deficiency in service and this resulted in suffering both mentally and physically. Hence the complaint for a direction to pay Rs.4,000/- for the suffering, Rs.2,000/- for the mental agony and Rs.1,000/- towards costs.

    2. Opposite party resisted the claim of the complainant, while admitting the change of policy from private car to public carrier, pleaded that there was never any demand for such refund by the complainant to them. It also pleaded that demand should accompany the surrender of the policy. Hence there is no deficiency in service.

    3. At the time of enquiry both the parties filed affidavit in support of their respective contentions and also marked Ex.A.1 to Ex.A.4 and Ex.B.1 and Ex.B.2.

    4. It is the contention of the counsel for the complainant that inspite of sending notice demanding such refund as evidenced by Ex.A.4 postal receipt and acknowledgement, the opposite parties failed to refund. This clearly amounted to deficiency in service and the complainant is entitled for the refund of the amount as well as the compensation claimed.

    5. On the other hand there is contention of the counsel for the opposite party that there was never any demand and point out that neither the complainant nor the affidavit of the complainant would show the details as to when such a demand was made at all. He pleaded had there been such surrender, the opposite parties would have refunded proportionate premium to the complainant. Apart from that he urged now the financial year is changed and it may not be possible to refund at all.

    6. In view of the respective contentions the point that would arise for determination is whether there is any deficiency in service on the part of the opposite party and the complainant is entitled for the relief asked for ?

    7. There is no dispute that the complainant, who originally took policy Ex.A.1 for his Tata Indica Car, later converted into public carrier namely Taxi and took another policy Ex.B.1, even by then earlier policy was in force. The claim of the complainant is inview of the changed policy obtained later, the opposite party is liable to refund the entire amount of the earlier premium amount or atleast proportionately.

    There is not much dispute as to the liability of the opposite party to refund the premium, proportionately, for the unexpired portion of the insured period. The only objection of the opposite party is there was never any demand by the complainant for such refund that too by surrendering the original policy Ex.A.1 and unless it is done, the refund cannot be ordered at all.

    The complainant filed Ex.A.4 postal receipt and acknowledgment showing that a registered notice was sent to the opposite party at its Mumbai office and Visakhapatnam office and the acknowledgement is from Visakhapatnam office. Though the dates of such registered notice and acknowledgement thereon is not clear, it would show that a registered letter is sent to opposite parties, which naturally be subsequent to 2nd policy and the purpose must be for refund. Inspite of the fact that those postal acknowledgment was filed along with the complaint, as specifically mentioned therein as one of the documents filed though not mentioned in the body of the complaint, the opposite parties did not try to explain what was the document received by them and other hand took a bald plea that no such notices was received.

    Therefore, it proves to great extent that such a demand was made by the complainant for refund. Inspite of such receipt of letter the opposite parties did not choose to intimate the complainant that the original policy should be surrendered. In our view this conduct of failure to intimate the complainant the necessity for surrender of the policy, inspite of receipt of notice, amounts to deficiency in service. We do not find any force in the contention of the counsel for the opposite party since the original policy period already expired and even that proportionate refund of premium is not possible.

    A duty is cast upon them to intimate the necessity of surrender of the policy, especially, when a notice for refund is given. For its failure to do so, the complainant cannot be penalized. Hence we are of the view that it would be just and proper that a direction be given to the opposite parties to refund the proportionate premium for the unexpired period of the insurance policy. Apart from this, in our view it would be just and proper that the complainant be awarded the compensation of Rs.1,000/- for the deficiency in service on the part of the opposite parties. Accordingly this point is answered.

    8. In the result, the complaint is partly allowed, directing the opposite parties to refund the premium amount proportionately covering the unexpired period of insurance policy bearing No.1802382311100038 i.e., from 01-03-2008 to 09-12-2008. It is further directed that the opposite parties shall pay compensation of Rs.1,000/- (Rupees one thousand only) to the complainant and costs of Rs.500/- (Rupees five hundred only). Advocate fee Rs.500/- (Rupees five hundred only).
  • adv.sumitadv.sumit Senior Member
    edited September 2009
    D.Kalamani, W/o.Late P.Duraisamy,

    s1/301, A.D.Colony, Sarkarsamakulam,

    Vaiyampalayam, Coimbatore 641 110 --- Complainant

    Vs.

    The Manager,

    Reliance General Insurance Co.Ltd.

    2nd floor,New No.41, 8th street,

    Tatabad, Coimbatore-12. --- Opposite Party

    This case coming on for final hearing before us on 27.07.09 in the presence of M/s.R.Ravikumar and R.Anandhakumar, Advocates for complainant and of Mr.S. Balasubramanian, Advocate for the opposite party and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:

    ORDER

    Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite party to pay a sum of Rs.1,00,000 with 24% since 16.4.07 to realization of the said amount, to pay Rs.50,000 towards mental agony and to pay Rs.5000/- towards legal expenses.

    The averments in the complaint are as follows:

    1. The Complainant is the wife of late P.Duraisamy, S/o.Palanisamy. The above said P.Duraisamy died in a motor accident which took place on 12.1.07 at about 16.30.hrs. while he was driving his motor cycle bearing Regn.No.TN 38-AF-6521 on the Coimbatore to Sakthy main road, towards south to north direction. The deceased P.Duraisamy is the regd.owner of the above said motor cycle. The deceased P.Duraisamy insured the above said vehicle and also personal loss of life with the opposite party under Policy No.12-23-12-57956-06 dt.28.4.06.As per the terms and limits of liability of the opposite party incorporated under the policy, the opposite party is liable to pay a sum of Rs.1,00,000/- to the complainant who are the legal heir of the deceased P.Duraisamy. The deceased P.Duraisamy had a proper and valid driving license at the time of the accident.

    2. The complainant has filed a claim form on 16..4.07 before the opposite party with all necessary certificates of the said P.Duraisamy, certificate of registration of motor cycle, insurance policy of P.Duraisamy copy of the FIR, Post Mortem certificate etc. as directed by the opposite party so as to get the sum of Rs.1,00,000 from the opposite party as compensation on the basis of the terms of the policy issued by the opposite party. Though the opposite party acknowledged claim form, they have not come forward to the said sums. Again they have not chosen to issue any reply to the complainant.

    3. The conduct of the opposite party in the above circumstances under law is nothing but a deficiency of their service and also amounts to an unlawful trade practice for which the opposite party is liable to the interest at 24% p.a. from 16.4.07 apart from the compensation of Rs.1,00,000. Because of the deficiency in the service of the opposite party, the complainants have been suffering from untold mental agony and pain for which they claim sum of Rs.50,000 apart from a sum of Rs.5000 towards the cost of this complaint. Hence this complaint.

    The averments in the counter of opposite party are as follows:

    4. The opposite party had issued a Motor Vehicle Policy to the deceased Mr.P.Duraisamy for his TVS Star City Motorcycle bearing No.TN-38-AF-6521 as per details averred in para III of the complaint. No claim was made with this opposite party by the complainant before filing the present complaint. Further, no pre-litigation notice was issued to the opposite party. Therefore in the absence of any intimation of claim under the policy, the present complaint is not maintainable.

    5. The policy of insurance granted to the deceased P.Duraisamy for his TVS Star City motorcycle is a personal contract and therefore any claim under the policy has to be decided strictly in accordance with the terms and conditions incorporated therein. Section III – Personal Accident cover for Owner-Driver. This cover is subject to

    a. The owner-driver is the registered owner of the vehicle insured

    b. The owner-driver is the insured named in the policy

    c. The owner-driver holds an effective driving licence, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules 1989, at the time of accident.

    6. It is seen from the complaint documents that no proof of the deceased P.Duraisamy holding a valid and effective licence to drive a geared motorcycle as on the date of the alleged accident on 12.1.07. Therefore it is evident that the deceased P.Duraisamy was not having any such Driving Licence as on that date. Hence the present complaint is not maintainable against the opposite party. Hence the complaint has to be dismissed.

    7. The complainant and opposite parties have not filed Proof Affidavit. There was no representation on the side of the complainant for the last few hearings. Arguments of opposite party heard.



    The point for consideration is

    Whether the opposite party has committed deficiency in service? If so to what relief the complainant is entitled to?

    ISSUE 1

    8. The complainant is a wife of late P.Duraisamy. The said P.Duraisamy died in a motor accident on 12.1.2007 while he was driving his motor cycle. Based on the insurance policy, the complainant filed a claim application before the opposite party on 16.4.07, but the opposite party has not come forward to settle the lawful claim of the complainant. Hence this complaint.

    9. In the present case, the complainant has not filed any Proof Affidavit and no document is marked.

    10. The contention of the opposite party is that there is no claim was made with this opposite party by the complainant before filing the present complaint. The complainant has filed 4 documents viz. (1) FIR dt. 12.1.07, (2) the postmortem certificate dt.12.4.07, (3) copy of the insurance policy dt.28.4.06 and (4) the copy of RC book of TN38 AF 6521. As stated by the opposite party no copy of claim application and driving license of the deceased is filed. The policy of insurance is a personal contract and therefore any claim under the policy has to be decided in accordance with the terms and conditions incorporated with the policy.

    11. Therefore in the absence of any intimation of claim under the policy and in the absence of effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules 1989, at the time of accident, the present complaint is not maintainable.

    12. In the result, this complaint is dismissed. No costs.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Smt.Daljeet Kaur Widow of Sh.Ranjit Singh, S/o Sh.Amar Singh, resident of village Khera Kalan, Tehsil Sardulgarh, District Mansa.


    ..... Complainant.


    VERSUS


    1.

    The Manager, Head office, The Mansa Central Co-operative Bank Limited, Mansa.


    2.

    The Manager, The Mansa Central Co-operative Bank Limited, Branch Sardulgarh, District Mansa.


    3. Reliance General Insurance, Anil Dhirubhai Ambani Group, Regional

    Office, SCO 212-214, Sector 34-A, Chandigarh.

    ..... Opposite Parties.





    ORDER:-




    This complaint has been filed, by Smt.Daljeet Kaur widow of Sh.Ranjit Singh, a resident of village Khera Kalan, Tehsil Sardulgarh,

    Contd........2

    : 2 :


    District Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act') against the opposite parties for release of maturity amount of insurance policy in the sum of Rs.1,00,000/- and for payment of amount of compensation in the sum of Rs.20,000/- and costs of filing of the complaint in the sum of Rs.2,000/-. Briefly stated, the case of the complainant may be described as under:-

    2. That Ranjit Singh, husband of the complainant had opened a saving bank account No.3577 with OP No.2 at Sardulgarh. Since the date of opening of the said account, he had been drawing and depositing amount therein from time to time. The bankers of the complainant secured insurance cover from OP No.3 under accidental insurance scheme, as such, complainant is consumer under all the opposite parties. The husband of the complainant has also nominated her as his nominee. On 11.12.2006, the husband of the complainant died in road accident between motorcycle and bullock cart, while he was riding a motorcycle. In this regard DDR No.10 was registered on even date at Police Station Sardulgarh on the statement of the deceased. Being nominee of her husband, the complainant is entitled to receive the amount payable under the insurance policy, but the opposite parties had been prolonging the matter for payment on one pretext or the other despite being approached by her several times.


    The complainant also served registered notice dated 12.12.2007 upon OP No.1, Sh.Munish Kumar, Advocate, but the opposite parties have not responded to the same. On being approached in his office, OPNo.2 used filthy language and sent the complainant out of the premises of the bank. As such, complainant, has been subjected to mental and physical harassment, due to deficiency in service on the part of the opposite parties. Hence this complaint.

    Contd........3

    : 3 :


    3. On being put to notice, Opposite parties No. 1 & 2 filed joint written version, resisting the complaint, by taking preliminary objections; that the complaint is barred by limitation, as such, it is not maintainable and liable, to be dismissed, with costs. On merits, it is admitted that deceased husband of the complainant had been maintaining saving bank Account No.3577 with OP No.2, but it is denied that he is consumer under the answering opposite parties. It is also denied that any information was conveyed by the complainant to the answering opposite parties about the death of her husband or that there is any deficiency in service on their part. The receipt of notice has been denied, but it is submitted that answering opposite parties have no liability to pay her the insured amount, therefore, the complainant could have served notice upon the insurance company and not upon the answering opposite parties. Rest of the averments made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.

    4. The Opposite Party No.3 filed separate written version resisting the complaint, taking preliminary objections; that claim of the complainant has been repudiated vide letter dated 31.7.2003, after thorough investigation and seeking report of Sh.Satish Kumar Bansal, Detective and Investigator, as complainant failed to supply him copy of the postmortem report, as such, answering opposite party is not liable to make payment of any amount under the policy secured by the deceased husband of the complainant; that this Forum has no jurisdiction to entertain and try the complaint because the controversy cannot be adjudicated in summary manner, but by the civil court after affording opportunity to the parties to lead evidence to their satisfaction; that complaint is time barred and is not maintainable in the present form; that there is no deficiency in service on

    Contd........4

    : 4 :


    the part of the answering opposite party; that the complainant has no locus standi and cause of action to file the present complaint and that complaint being false and vexatious is liable to be dismissed with compensatory costs. On merits, it is submitted that Sh.Ranjit Singh, deceased husband of the complainant had been maintaining saving bank Account No.3577 with the OP No.2, who secured insurance cover note No. 17258 from the answering opposite party under Sehkari Bank Beema Yojna Scheme for the persons who are maintaining account in the bank for the period 1.6.2006 to 31.5.2007. It is submitted that under the above said scheme, a sum of Rs.1,00,000/-, is required to be paid as per terms and conditions of the policy in case of accidental death of any account holder, but the complainant has violated these conditions.


    As such, her claim received through her bankers has been rightly repudiated. It is also submitted that on receipt of intimation regarding death of the husband of the complainant, Sh.Satish Kumar Bansal, Detective and Investigator was deputed by the OP No.1 to investigate the factum of cause of death and he submitted his report dated 4.3.2007 that neither any FIR has been lodged nor any postmortem of the body of the deceased husband of the complainant, was performed, to ascertain the exact cause of death. It is denied that there is any deficiency in service on the part of the answering opposite party. Rest of the averments made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.

    5. On being called upon, by this Forum, to do so, learned counsel for the complainant, tendered his affidavit and photo copies of documents, Ext.C-1 to C-5 and closed evidence. On the other hand learned counsel for the opposite parties tendered in evidence affidavits of Sh. Satish Kumar Bansal, Detective & Investigator, Sh.Satyan Kapur, Manager

    Contd........5

    : 5 :


    (Legal) and photocopies of documents Ext.OP-1 to OP-10 and closed the evidence on their behalf.

    6. We have heard the learned counsel, for the parties and gone through, the oral and documentary evidence, adduced on record, by the parties, carefully, with their kind assistance.

    7. Admittedly, Ranjit Singh S/o Sh.Amar Singh, husband of the complainant had been maintaining saving bank Account No.3577 with the OP No.2, before his death 0n 11.12.2006. The factum of death is also proved by the copy of DDR No.10 registered at Police Station, Sardulgarh on 11.12.2006 Ext.C-6 and copy of death certificate Ext.C-4 tendered in evidence by the complainant and his affidavit Ext.C-1.

    8. Learned counsel for the complainant Sh.Randeep Sharma, Advocate, has submitted that DDR has been registered at the instance of the complainant to the effect that he sustained injuries in road accident while riding a motorcycle and said fact is proved by duly sworn affidavit of the complainant and even the investigator deputed by the opposite parties, after receipt of intimation about the death of the husband of the complainant, has accepted her version, as such, repudiation of the claim, is not justified, merely because postmortem of the body of the husband of the complainant, was not preformed or that no proceedings were initiated by the police under Section 174 of the Cr.P.C. Learned counsel further argued that as the OP No.3 has repudiated the claim without any cogent reason, as such, there is deficiency in service on his part because of which complainant is entitled to seek compensation on account of mental and physical harassment and costs of filing of the instant complaint. Learned counsel argued that even remaining opposite parties cannot escape liability, because they have failed to pursue the case of the complainant after receipt

    Contd........6

    : 6 :


    of intimation of death of her husband from her and to convey the information immediately after receiving intimation regarding repudiation of her claim.

    9. On the other hand, learned counsel for the opposite parties No.1 & 2, Sh.S.K.Singla, Advocate, has argued that his clients have processed the case of the complainant with great promptitude after receiving intimation regarding death of the husband of the complainant and her claim was to be honored by the OP No.3 under the policy. As such, no liability can be fastened upon them and complaint against them is liable to be dismissed.

    10. We find merit in the argument advanced by the learned counsel for the OPs No1 and 2. The insurance policy extending benefit of accident through death, has been issued by OP No.3 covering risk of life of account holders maintaining accounts with OP No.2 and they have deposited the premium in time. The complainant has not disclosed the date on which she conveyed the intimation to OP No.1 about the death of her husband in road accident. As per copy of notice Ext.C-2, the notice has been served upon the Ops No.1 and 2 on behalf of the complainant on 12.12.2007 to the effect that death of the husband of the complainant has taken place on 11.12.2006. As such, there is delay of about one year on the part of the complainant herself to convey intimation about factum of death of her husband to the opposite parties. The claim of the complainant has been repudiated by the OP No.3 vide office letter dated 31.3.2007. The investigator appointed by the OP No.3 has given the copy of the report after conducting detailed inquiry on 4.3.2007. In the peculiar facts and circumstances of the case, the Opposite Parties No.1 and 2 have no personal liability to make the payment of claim under the insurance policy

    Contd........7

    : 7 :


    issued by the OP No.3. Since the opposite parties No.1 & 2 have performed their obligation towards the deceased account holder, with due diligence, therefore, we are unable to accept the plea of the complainant that there is no deficiency in rendering service on the part of these opposite parties, even if, there is some delay on account of conveyance of information regarding repudiation of claim by the OP No.3 after receipt of the same in their office. As such, OPs No.1 & 2 cannot be burdened with any liability to pay compensation and costs on account of deficiency in service, as prayed for in the complaint by the complainant.

    11. Learned counsel for the Opposite Party No.3, Sh.Naval Goel, Advocate, has argued that complicated questions of law and facts are involved in this case because cause of accident of deceased husband of the complainant is not clearly proved, as such, controversy cannot be adjudicated by the Consumer Fora in summary manner. Learned counsel urged that complainant be relegated to the civil court, because controversy can be resolved, after affording opportunity to the parties, to lead evidence, to their satisfaction.

    12. The argument advanced by the learned counsel for the OP No.3 has failed to sound well with us because documentary evidence adduced on record by the complainant regarding cause of accident is enough to clinch the matter and has gone unrebuttable. Even the investigator appointed by OP No.3, to ascertain the said fact, has not suspected the genuineness of the claim made by the complainant. The OP No.3, has neither examined any person, who may be personally conversant with cause of death of the deceased husband of the complainant, nor any person, has appeared before the investigator, in the course of inquiry about the cause of accident of the deceased, on the basis of which, it may be held,

    Contd........8

    : 8 :


    that husband of the complainant died due to some other reason and at some other place. Since facts are clear on record, therefore, in our opinion, there is no necessity of relegating the complainant to the civil court. The argument advanced by the OP No.3 thus stand repelled.

    13. Learned counsel for the OP No.3 has also argued that claim of the complainant has been repudiated in terms of report of investigator appointed by the OP No.3, because she has not got the postmortem of the body of her husband performed, and neither registered F.I.R., nor prepared inquest report of cause of death of her husband has been prepared by the police. Learned counsel has further argued that one of the conditions of the policy for honoring the claim under the insurance policy, is that in the event of death, it is incumbent upon the claimant to furnish copies of postmortem and quest reports, in respect of the deceased, within 14 days of death. Learned counsel has further argued that complainant has failed to supply the requisite documents, to the opposite parties, within the period provided in the insurance policy, therefore, her claim, has been rightly repudiated by the OP No.3, as per terms and conditions of the policy and there is no deficiency in service on his part, which may invite indulgence of this Forum, as sought in the instant complaint.

    14. The argument advanced by the learned counsel for the OP No.3, has failed to impress us because, as observed in the earlier part of the order, factum of death of the husband of the complainant in road accident, is proved by the copy of DDR No.10 Ext.C-3 registered at Police Station, Sardulgarh on 11.12.2006 and said fact is corroborated by the affidavit of the complainant Ext.C-1 and copy of death certificate Ext.C-4. The opposite parties have not led any evidence to the contrary on the basis of which it may be held that accident has taken place due to some other

    Contd........9

    : 9 :


    reason or at some other place. After recording the statement of the complainant and other co-villagers, the investigator of OP No.3 in his report Ext.OP-4 has accepted the version of the complainant in its entirety. He has also concluded that after the accident in Sardulgarh, he was referred to Civil Hospital, Mansa, where he succumbed to his injuries sustained by him in the road accident on 11.12.2006. It may not be out of place to mention here that DDR No.10 has been registered at the instance of the injured himself about the cause of accident. He has no reason to absolve the real culprit to give false version as death has been caused by some person or in other manner just to claim the amount payable under the policy. Since the police has accepted the version of the deceased husband of the complainant, after spot inspection and decided not to register the FIR on the basis of DDR and he succumbed to the injuries in the hospital, therefore, occasion never arose for preparation of inquest report.


    Since cause of accident was not suspicious, therefore, there was no need for postmortem examination. As per the admitted facts, death has taken place on 11.12.2006 and complaint has been filed by the complainant on 18.3.2008, i.e. within a period of two years, as provided in Section 24 of the Act, as such, complaint is otherwise within limitation.

    15. In the face of these facts, we have no hesitation in holding that repudiation of the just claim of the complainant by OP No.3 for non production of postmortem and inquest report, amounts to deficiency in service, for which the complainant has been subjected to mental and physical harassment and had incurred avoidable expenses for filing the instant complaint.

    16. For the aforesaid reasons, we dismiss the complaint against Opposite Parties No.1 & 2 and accept the same against Opposite Party

    Contd......10

    : 10 :


    No.3, who is directed to pay a sum of Rs.1,00,000/- to the complainant under the insurance policy and to pay compensation in the sum of Rs.2,000/- for harassment and a sum of Rs.1,000/- as costs of filing of the instant complaint. The compliance of the order be made within the period of two months from the date of receipt of the copy of this order,failing which the complainant shall also be entitled to payment of interest at the rate of 9 percent per annum from the date of this order, till date of actual payment.

    17. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Patnam Raju S/o Ramaiah,

    Age Major, Occ: Auto owner, Resident of House

    No. 174, Cherla Gopularam Village,

    Mandal Kondapur, Medak District.



    ….. Complainant

    Vs

    M/s Reliance General Insurance Company Limited,

    6-4-8, First Floor, Vijetha Sanjeevini,

    Appartments, Opposite Gandhi Hospital,

    Musheerabad, Hyderbad.

    ….Opposite parties






    O R D E R



    This complaint is filed Under Section 12 of Consumer Protection Act, 1986 to direct the opposite party to pay Rs.1,00,000/- with interest 12% p.a. towards damages and to pay costs of Rs.5,000/-.

    The averments in the complaint in brief are as follows:

    1. The complainant insured his auto bearing No. AP 23 V 7387 with the opposite party through their agent on 12.03.2008 by paying a premium of Rs.2,591/- and he issued a proposal cum cover note No.200703151952 in favour of the complainant. The agent informed that the opposite party will furnish the original policy within 30 days from the date of issue of the proposal cum cover note. But the complainant did not receive the policy within 30 days and his oral requests including through telephone made to the opposite party and to the agent proved futile. Therefore he got a legal notice issued on 21.06.2008 to the opposite party for the policy. Even after receipt of the notice the opposite party has neither issued the policy nor replied.


    Traffic Police and officials of RTA are creating so many problems to the complainant as he does not posses the original policy, as such the complainant is not in a position to run his auto properly which is the only source of living to him and to his family. The complainant has not been running the auto regularly from the date of the proposal cum cover note till the date of the filing of the complaint and there by the auto is also spoiled. For the negligence of the authorized agent the opposite party is vicariously liable. The complainant is a consumer and the negligence of the opposite party and their authorized agent is deficiency in service within the meaning of the Consumer Protection Act. Hence this complaint.

    2. The complaint is resisted the opposite party by filing a counter to the following effect:

    Policy was issued to the complainant from Reliance General Insurance Company Ltd., Wadala (W) Mumbai on 19.03.2008 and the same was sent by the opposite party to the insured on the same date to the address given by the complainant. Agent of the company of the opposite party is a necessary party to the complaint as the complainant has taken the copy from the agent. Therefore the complaint is liable to be dismissed for non joinder of necessary party. The opposite party learnt that after receiving the original policy only this complaint is filed to harass the opposite party. The opposite party denies that the complainant did not receive the policy and requested orally and by telephone. They are all false. It is further false to allege that the complainant faced so many problems from traffic police and officials of RTA and he lost his lively hood.


    In fact the complainant came to know about the address of the opposite party after receiving the policy only and then only filed this false case. The complainant is not entitled to Rs.1,00,000/- towards damages as policy was already issued to him. The complainant himself is harassing the opposite party by filing this false complaint. It is reliably learnt that after receiving the cover note and policy copy, the complainant furnished copy to the Motor Vehicles Inspector, Sangareddy in crime No. 35/2008 and with this it is clear that the complainant received the policy already.


    The address of the complainant mentioned in the cover note, legal notice and in the house hold card are different. The complainant deliberately furnished different addresses at different times. The opposite party is filing copy of the policy in this forum and the same may be given to the complainant even though the opposite party sent the policy copy already and hence the complainant may be dismissed.

    3. In order to prove the averments of both parties, their evidence affidavits are filed and marked Ex. A1 to A4 on behalf of the complainant and Ex.B1 on behalf of the opposite party. Written arguments of both parties filed and oral arguments are also advanced on either side. Perused the record.

    4. The point for consideration is whether the complainant is entitled to damages of Rs.1,00,000/- and costs of Rs.5,000/- as prayed for in the complainant?

    Point:

    5. The case of the complainant is that he is owner of auto bearing No. AP 23 V 7387 and he paid premium amount to the agent of the opposite party for a policy, who issued a proposal cum cover note No. 200703151952 to cover the risk of auto from 12.03.2008, but the opposite party did not send policy copy within one month and inspite of requests of the complainant to the opposite party and their agent for the policy, there was no response and for want of policy the complainant could not run the auto from the date of proposal cum cover note. The income derived by running auto is the only source of living for him. According to him he could not run the auto as police and officials of RTA are creating so many problems to him. But according to the opposite party on 19.03.2008 itself the policy was sent to the complainant to the address given in the cover note, however a copy of it is filed before this forum for being delivered to the complainant.


    The opposite party denied the contentions of the complainant that police and officials of RTA created so many problems to the complainant for want of policy therefore the complainant could not run the auto from the date of cover note and there by he lost his living and the auto was also spoiled. According the learned counsel for opposite party proposal cum cover note is as good as policy and it serves the purpose.

    6. Ex.A1 is proposal cum cover note, Ex.A2 is copy of legal notice issued by the advocate for the complainant to the opposite party, Ex.A3 is postal registration receipt and Ex.A4 is house hold card of the complainant. Ex. B1 is the copy of the policy.

    7. It is not in dispute that the complainant paid premium of Rs. 2,591/- to the agent of the opposite party on 12.03.2008 for a policy to his auto bearing No. AP 23 V 7387 under Ex.A1 proposal cum cover note bearing No. 200703151952 . Te contention of the opposite party is that the agent to whom the premium is paid by the complainant is a necessary party and the complaint is liable to be dismissed for non joinder of necessary party. This contention is not acceptable as the opposite party sent the policy directly to the complainant but not through their agent. Moreover payment of premium by the complainant to the agent of the opposite party is not in dispute.

    8. According to the complainant he did not receive the policy within 30 days from the date of Ex.A1 proposal cum cover note and his requests orally and through telephone to the opposite party and their agent proved futile. Opposite party denied the said contentions. According to it on 19.03.2008 i.e. one week after Ex.A1 they received the policy from their Mumbai Office and on the same day it was sent to the complainant. Because the complainant denied receipt of the same the burden is on the opposite party to prove sending of the policy to the complainant.


    The learned counsel for the opposite party argued that they have sent the policy through ordinary post as usual to the address given in the proposal cum cover note therefore they do not have any proof to show that the policy was sent to the complainant. Moreover the complaint has given different addresses at different times and in this connection he has referred to Ex.A1, A2 and A4. In Ex.A1 the address of the complainant is mentioned as Cherlagopularam, Morlapala, Ex.A2 legal notice shows the residence of the complainant as H.No. 1-74, Cherla Gopularam Village, Kondapur Mandal, Medak District. Ex.A4 shows the residence of the complainant as House No. 1-79/2, Ch.gopularam, Kondapur Mandal, Medak District. Therefore on a perusal of Ex.A1,A2 and A4 it is observed that Ex.A1 does not contain House Number and Ex.A2 and A4 contain different house numbers.


    The complainant has not alleged any personal animosities to any of the officials of the opposite party to make false representations that they sent the policy to the complainant without sending. As they discharge official duties, in their regular course of business they must have certainly sent the policy to the complainant as contended by them and because of different addresses given by the complainant, it might not have been received by him. Even otherwise till the receipt of the policy a person who paid premium is entitled to use proposal cum cover note as the same is as good as policy.

    9. The learned counsel for the opposite party then argued that they reliably learnt that the auto of the complainant met with an accident on 12.03.2008 at 10:00 A.M. and suppressing the said fact the complainant managed to pay premium to the agent of the opposite party at 4:00 P.M. on 12.03.2008 and obtained Ex.A1 proposal cum cover note and later the time of proposal mentioned in the Ex.A1 is corrected as 9:00 A.M. On a perusal of Ex.A1 it is clearly seen that there is correction of the time and the letter ‘A’ in “A.M.” after the time. The correction lends support to the contentions of the learned counsel of the opposite party that 4-00 P.M. is corrected has 9-00 A.M. It is not known by whom the correction is made. There are initials of some body above the said corrections and they appear to be of the authorized signatory of the opposite party who signed the proposal cum cover note at the end.


    Ex.A1 does not contain the signature of the complainant even though a provision is made for the said purpose at the left side bottom of the front page of it. Another aspect to consider is normally policy cum cover note and subsequent policy covers a period of one year only for insurance of motor vehicles, but Ex.A1 shows that the effective date and time of commencement of the insurance is 12.03.2008, 9:00 A.M. (the time is with correction) and date of expiry of insurance is mentioned as mid night of 11.08.2009 instead of 11.03.2009. Therefore from the above circumstances there is something fishy in the matter.



    10. The contention of the complainant that police and officials of the RTA are creating so many problems to him and therefore he could not run the auto from the date of issue of Ex.A1 and there by he lost his living and further the auto is also spoiled. This contention of the complainant is totally un acceptable because as already stated above, Ex.A1 can be made use of by the complainant till he receives policy, because it is as good as policy. The complainant has not placed any satisfactory evidence in support of the problems alleged to have suffered by him at the instance of police and officials of RTA. The complainant has also not produced any proof that he did not run the auto from the date of EX.A1 and therefore it is spoiled and that he is entitled to damages of Rs.1,00,000/-.



    11. In view of the circumstances discussed above we do not see any merits in the complaint and therefore it is held that the complainant is not entitled to any relief muchless the damages and costs claimed in complaint. The point is answered against the complainant.

    12. In the result the complaint is dismissed. No costs.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    G.Malathi W/o Anil Kumar, Aged: 35 years, Occ: Private Employee,

    R/o H.No.6-7-62, Shivaji Nagar locality of Nalgonda Town and

    District.

    …Complainant.




    Vs







    1) Reliance General Insurance, Registered Office: Reliance Centre,

    19, Walchand Hirachand Marg, Ballard Estate, Mumbai-400 001.

    Represented by its Authorized Signatory.

    2) Medi Assist India (P) Limited, 49, Shilpa Vidya Road, Sarkar-

    Industrial Lay Out, 1st Main, J.P.Nagar, 3rd Phase, Bangalore.

    Represented by its Vice President.



    …Opposite Parties.







    This complaint coming on before us for final hearing on 18-8-2009, in the presence of Sri J.Bhaskar Reddy, Advocate for the Complainant, and Sri A.Raja Ranga Rao, Advocate for Opposite Party No.1, and Opposite Party No.2 having been called absent, and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following:






    O R D E R





    1. It is the say of the complainant that she had obtained a Health

    Insurance Policy from Reliance General Insurance, vide Policy No.282510201314, dated 29-11-2007. The Plan opted was Silver for a period of one year, i.e. from 29-11-2007 to 28-11-2007 and the sum



    Contd…2

    - 2 -

    assured was for an amount of Rs.1,00,000/-. For that she had paid Rs.900/- towards premium to the Opposite Party No.1 for health insurance, the policy which covers the complainant, her daughter namely G.V.S.Mounvy and her husband namely G.Anil Kumar. To that effect the Opposite Party No.1 had issued a Healthwise Policy Certificate, Premium Paid Certificate and Cashless Card to the complainant. But, the complainant claims that in the issued policy only her name and her daughter’s name was mentioned, in fact the said policy covers her husband also. She further says that the Opposite Party No.2 is Third Party Administrator through Opposite Party No.1 and this policy is payable by Opposite Party No.1 for health and medical expenses.



    She further says that on 29-4-2008 her daughter namely GVS Mounvy suffered with walking difficulty with her legs, for that the said Mounvy was referred to Yashoda Hospital, Secunderabad for treatment, where she was admitted. At the time of admission she had submitted the Cashless Card which was issued by Opposite Party No.1 in the said hospital and the same was informed to the Opposite Party No.2 through fax on dated 1-5-2008. In response, the Opposite Party No.2 had sent a letter asking for further information of the patient, in reply to that she had sent all the information required under Cashless Benefit Scheme such as details of the ailment and Doctors Certificate.


    In spite of sending the required information the Opposite Party No.2 had denied the Cashless facility without any reason to avoid her claim. For the said reason she had to borrow money from others in order to meet the medical expenses and for the surgery recommended by the doctors. The total expenditure incurred in the hospital was Rs.38,517/- towards operation and Rs.1,476/- for medical bills which comes to a total of Rs.39,993/- which was paid by her from the loan amounts.

    Contd…3

    - 3 -

    For the above said reasons the complainant had issued legal notice to the Opposite Parties on 2-6-2008 claiming them to pay the said amounts which is covered in the policy. On receiving the above said legal notice, the Opposite Party No.2 had given a reply on 14-6-2008 asking her to send all paid bills. For that she immediately sent all necessary documents and bills through Registered Post on 25-6-2008 and the same was received by Opposite Party No.2 on 28-6-2008.


    After that the Opposite Party No.2 again sent a message to her demanding to send further all original documents through Yahoo.com email on 5-8-2008, on receipt of the above said email she had sent all original documents through Registered Post on 26-8-2008. Again after receiving the said documents the Opposite Party No.2 had sent another message through yahoo.com email on 15-10-2008 stating that no intimation is received within seven days from the date of hospitalization of her daughter and the documents were also not reached within time from the date of discharge. So, the policy conditions were violated, in view of that they are repudiating her claim.



    Her claim is that as she had not violated the policy conditions she had finally requested the Opposite Parties to settle the claim on 10-11-2008, but the same was denied by the Opposite Parties. For the above said reason she had filed this complaint. Where this Forum has territorial jurisdiction for the reason that she had paid the above said premium through a Demand Draft bearing DD.No.292882, dated 29-11-2007 which was taken from Andhra Bank, situated in Nalgonda.



    For all the said reasons she prays that the Opposite Parties are liable to pay her the amounts paid in the hospital, i.e. Rs.39,993/-



    Contd…4

    - 4 -



    with interest and an amount of Rs.40,000/- towards mental agony and deficiency of service along with costs.



    2. The Opposite Party No.1 in his counter denies all the allegations made in the complaint except those that are specifically admitted. He says that he does not know the facts mentioned in Para No.3 of the complaint. He admits that the complainant had obtained a Unique Healthwise Policy from them and they had issued a Policy under that scheme to the complainant with cashless facility. He further says that the complainant is not a consumer as defined under Chapter-1 Section-2(d) of C.P.Act, 1986. He further says that it is a pre condition for invoking the provisions of the C.P.Act that the complainant would satisfy the requirement that she would come under the purview of consumer as defined in the Act, where the basic requirement is not fulfilled as the complainant is not locus standi to file this complaint against them.


    He further says that the complainant had violated the conditions and also there is a breach of agreement that any dispute should be referred to Arbitrator, further he says that this Forum does not have jurisdiction to entertain this complaint. Hence, the complaint should be dismissed. He further says that the documents which were sent by the complainant reached them late and there was no intimation from the hospital, and they did not receive the intimation within seven days and the documents which were sent by the complainant did not reach them within time from the date of discharge. For that the policy conditions are violated. The expenditure incurred by the complainant in the hospital are put to strict proof by the complainant.



    Contd…5



    - 5 -



    He further says that they reserve their right to file an additional counter in case of need arises so as to furnish better particulars in order to just and fair conclusion and to do justice between the parties. Hence, this complaint is liable to be dismissed.



    3. In support of her claim, the complainant had filed her affidavit along with documents which are marked as Exhibits A-1 to A-34. In support of their counter, the Opposite Party No.1 had marked one document, i.e. Ex.B-1 and did not file any affidavit.



    4. Opposite Party No.2 had received the notice which was sent through this Forum, but did not represent. Hence, called absent.



    5. Now the points that arise for consideration in this complaint are:



    1) Whether the complainant in this complaint is a consumer or not? Whether this complaint comes under the jurisdiction of this Forum or not?



    2) Whether the Opposite Parties No.1 and 2 are liable to pay the claim made by the complainant?



    3) Whether the complainant is entitled to the claimed amount in his complaint or not?



    4) If so, to what extent the complainant is entitled of the claim?





    6. POINT No.1: Where the Opposite Party No.1 had contested that the complainant in this complaint is not a consumer Under Section 2(d) of C.P.Act, 1986. In Section 2(d)(ii) it is clearly mentioned that “ (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other



    Contd…6

    - 6 -



    than the person who (hires or avails of) the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose) is a Consumer”.



    In the above said para it is clearly defined that whoever avails the services of Opposite Party for a consideration comes under the definition of consumer. Hence, we hold that the complainant in this complaint is a consumer.



    Where the Opposite Party No.1’s another contention was that this Forum does not had territorial jurisdiction, but where the Opposite Party No.1 is one of the branch involved in general insurance under the name Reliance General Insurance under the parental company ‘Reliance Capital Company’ and this parental company has another branch in the name of Reliance Money which had a franchise in Nalgonda and in which they deal with all sorts of money transactions including life and general insurance. Under the above said reasons this Forum had territorial jurisdiction to entertain this complaint.


    Hence, the complainant has a locus standi to file this complaint in this Forum. Coming to the Arbitrator’s point which was stated in the Opposite Party No.1’s counter where the complainant had multiple options to file a complaint for seeking justice the complainant is at liberty to choose any one of them. As the C.P.Act, 1986 is not in derogation with any existing laws the complainant is at his will to choose this Forum.



    Contd…7



    - 7 -



    7. POINT No.2: It is not in dispute that the complainant paid a sum of Rs.900/- to the Opposite Party No.1 to avail their services and obtained a Health Insurance Policy under option “Silver” for a period of one year, i.e. from 29-11-2007 to 28-11-2008 for an assured sum of Rs.1,00,000/-. For that the Opposite Party No.1 had issued a Policy Certificate with bearing No.282510201314 which is marked as Ex.A-2 with cashless facility which covers the complainant herself and her daughter namely GVS Mounvy, in which they had stated that Medi Assist India Private Limited which is situated at Bangalore hereinafter called as Opposite Party No.2 will act as a “Third Party Administrator” and also issued a Premium Certificate which is marked as Ex.A-3.


    Further it is not in dispute that GVS Mounvy had approached Dr.Sanjib Kumar Behera who is a consultant in Yashoda Hospital, Secunderabad with a problem in her walking on 3-3-2008 and where it was diagnosed that “Grade-1 Spondylolisthesis with Spondylolysis”, which is marked as Ex.A-7, and started treatment for that.


    Again on 29-4-2008 when she approached the same consultant doctor for further check-ups it was detected that she had a problem of adductor and knee flexion contracture bilateral and line of treatment recommended was adductor tenotomy and knee flexion release which is to be done by operation, marked as Ex.A-9 and Ex.A-11 which shows that the same was intimated to the Opposite Party no.2 by the complainant. Ex.A-12 shows that the Opposite Party No.2 informed the complainant to send further information and treating doctor certification stating since when claimant is suffering from spastic paraparesis. For the said reason the complainant obtained a Certificate which is marked as Ex.A-6 from treating doctor, i.e. Dr.Sanjib Kumar Behera on 3-5-2008 and the same

    Contd…8



    - 8 -

    was sent to Opposite Party No.2 by fax with an acknowledgement which is marked under Ex.A-11, and after receiving the same the Opposite Party No.2 sent a letter to the hospital authorities stating that they are unable to extend cashless facility to the complainant showing the cause as ‘discrepancy in the duration’ and advised them to collect the hospital expenses from the pocket of the complainant and advised the complainant to submit the bills to them for a possible reimbursement subjected to the terms and conditions of the policy which is marked as Ex.A-13.



    For the above said reasons as stated by the complainant in her complainant that she had borrowed money in emergency for the treatment of her daughter and paid the same in the hospital may be true.



    Ex.A-14 is a legal notice sent by the complainant through her Advocate Sri D.Swamy Das, Nalgonda to the Opposite Parties No.1 and 2 with a request to reimburse the said expenditure which was incurred by her at the hospital. Ex.A-15 is a reply letter sent by Opposite Party No.2 to the advocate of the complainant stating that some of the conditions of the policy was violated by the complainant, one of which is that the insured had not sent full information within 30 days of the discharge of the patient from the hospital for reimbursement.


    In it they also asked the complainant to submit the bills raised in the hospital for reimbursement. Ex.A-18 is a reply letter written by the complainant to the Opposite Party No.2 with an apology and further asking them to settle the claim. Ex.A-19 is an email sent to the complainant by the Opposite Party No.2 to furnish further required information of administration notes, daily doctor notes and nurse chart etc. And they also asked her to provide the original bills of nursing charges and medical charges.

    Contd…9

    - 9 -

    Exs.A-21 to A-26 are the attested copies of hospital records and bills which were sent to Opposite Party No.2 by the complainant on 26-8-2008 through Speed Post as Ex.A-20.



    Ex.B-1 is a medical opinion given by the medical insurance panal doctor of Opposite Party No.1 namely K.V.Shenoy, in which he stated that after scrutinizing of the documents sent to him and the x-ray reports it is evident that the insured is a case of hereditary spastic paraparesis already seen at the time of 1 ½ years with knee flexion contracture and hip adductor contracture bilaterally as mentioned in the indoor case papers in the claim file. Hence, the claim may be repudiated on the following two clauses. 1) Policy Exclusion 1 (Pre-existing ailment), 2) Policy Exclusion-10 (congenital anomaly or defect). But, where the Opposite Party No.1 did not produce the affidavit of the above said doctor his report cannot be considered.



    After going through all the recorded facts, we come to a conclusion that there was deficiency of service on the part of Opposite Parties No.1 and 2 because after receiving the initial intimation on 1-5-2008 and further information on 3-5-2008 from the complainant, the Opposite Party No.2 did not act accordingly and released the facility of cashless card which was issued at the time of policy and after receiving of all original hospital records and the bills from the complainant on 26-8-2008 for reimbursement of the expenditure incurred by the complainant at the hospital, who is a third party administrator of Opposite Party No.1.



    Coming to the part of Opposite Party No.1, as the complainant is a consumer of Opposite Party No.1 who paid the premium for the policy

    and the same was received by them and appointed a third party

    Contd…10



    - 10 -

    administrator to mediate the claims is responsible for the actions of Opposite Party No.2. Hence, the Opposite Party No.1 is also at fault in rendering services.



    The Opposite Party No.1 did not produce any recorded evidence that the complainant suppressed knowingly that the insured G.V.S.Mounvy had a pre-existing ailment and congenital anomaly and got treatment for that since the age of 1 ½ years before taking of the policy.



    Under the above observations the Opposite Party No.1 alone is liable to pay the claim made by the complainant, where he is the sole insurer of the insured.



    7. POINT No.3: After perusing all the material and recorded facts under Points No.1 and 2, we opine that the complainant is entitled for the claim.



    8. POINT No.4: In the result, we direct the Opposite Party No.1 alone to pay to the complainant a sum of Rs.38,517/- (Rupees Thirty eight thousand five hundred and seventeen only) expenditure which was incurred in the hospital by the complainant along with interest at the rate of 9% per annum from the date of filing of this complaint till realization and costs of Rs.1,000/- (Rupees One thousand only) within 30 days from the date of receipt of this Order.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Sandeep Ohri son of Shri Satish Ohri, Red Road, Hoshiarpur.

    ......... Complainant

    versus


    1.

    The Manager, Cargo Motors Pvt. Ltd., BSF Chowk, G.T. Road, Jalandhar.
    2.

    Fint India (P) Ltd., Plot No. B-19, MIDC, Industrial Area, Rajan Gaon, Pune-412210.
    3.

    Reliance General Insurance Co., Anil Dhirubhai Ambani Group, SCO 212-214, First Floor, Sector 34, Chandigarh.


    ......... Opposite Parties

    1.

    The complainant namely Sandeep Ohri has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the complainant got his car bearing registration No. PB-08-571 comprehensively insured from OP No. 3.
    2.

    It is the case of the complainant that when he was coming from Amritsar to Hoshiarpur via Tanda Road, the said car was hit by a motor cycle. The complainant is holding a valid and effective driving licence. The car got damaged to a considerable extent. The complainant immediately informed OP No. 1 for lifting the car from the site of accident.
    3.

    It is the allegation of the complainant that since 24.9.2007, the car is parked in the workshop of OP NO. 1 and has not been repaired. The complainant contacted OP No. 1 on telephone, but of no avail. The complainant is daily incurring the expenditure to the tune of rs. 2000/- to hire a taxi for attending his office at Jalandhar and Amritsar. The complainant got issued a notice through Advocate dated 6.11.2007, whereby the OP No. 1 was called upon to hand over the car after repairs or to supply the new car.

    4.

    It is further the allegation of the complainant that the car of the make, which was purchased by the complainant from OP No. 1 is no longer manufactured by OP No. 2, as its spare parts are not available, therefore, the said car will not become roadworthy. The complainant does not want to retain this vehicle and is interested for its replacement.
    5.

    It is further the case of the complainant that after the accident, the claim was lodged with OP NO. 3. That OP No. 3 vide letter dated 18.8.2008 informed that the claim file was closed on 25.10.2007 due to non-availability of spare parts.
    6.

    The OP No.1 filed the reply. The preliminary objections vis-a-vis maintainability, the complainant is not a consumer, estoppel, jurisdiction and non-joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant has violated the terms and conditions of the warranty by installing LPG Kit. That there was not time frame or agreement regarding the repair of the vehicle. It is further replied that the vehicle had been repaired, but the complainant is not taking delivery of the vehicle nor has paid the repair bill. The replying OP is entitled to recover Rs. 100/- per day as garage charges from 12.11.2007 onwards.
    7.

    It is further replied that the vehicle in question had been purchased by the complainant from M/s. Cargo Motors and the same was insured with M/s. Reliance General Insurance Company at Jalandhar vide Temporary Registration No. PB-08-PT-0571. The complainant has not produced any FIR or Police Report and Photographs with regard to the accident. It is further replied that the car was brought to the workshop of M/s. Cargo Motors at Jalandhar on 24.9.2007 in damaged condition. The complainant was required to produce the relevant papers. The actual process to assess the loss to the car started on 8.10.2007. The complainant had failed to produce the RC and other documents. The car was fully repaired and became roadworthy on 12.11.2007. That despite of various requests, the complainant has failed to take the delivery of the car. The complainant also failed to pay the necessary repair charges as accident claim is not covered under the warranty. It is further replied that the spare parts of the car are available in the market.
    8.

    The opposite party No. 2 filed a separate reply. The preliminary objections vis-a-vis jurisdiction, cause of action and suppression of material facts were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the vehicle in question does not suffer from any manufacturing defect. As per terms and conditions of the warranty, the replying OP is liable only, if the vehicle is found defective to the satisfaction of the company. The claim of the complainant is not covered under the terms and conditions of the warranty. The complainant had violated the terms and conditions of the warranty, therefore, the company is not liable for any loss or damages, direct or consequential to the vehicle. It is further replied that as per information received, the vehicle had been repaired and is lying ready for delivery, but the complainant is not taking the delivery of the vehicle. The spare parts of the Fiat vehicles are readily available with all the dealers and manufacturer.
    9.

    The defence of opposite party No. 3 was ordered to be struck off vide order dated 20.8.2009.
    10.

    In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, letter dated 18.8.2008 – Ex. C-2, insurance policy – Mark C-3 and closed the evidence.
    11.

    In rebuttal, the opposite party No. 1 tendered in evidence affidavit of I.D. Sharma, Sr. Manager (Finance), Cargo Motors – Ex. OP-1, another affidavit of ID Sharma – Ex. OP-3, whereas, opposite party No. 2 tendered in evidence affidavit of Parshana Panday – Ex. OP-2, warranty terms – Mark-A and closed the evidence on behalf of opposite parties No. 1 and 2.
    12.

    The learned counsel for the complainant and opposite parties No. 1 and 2 filed written arguments. We have gone though the written submissions and record of the file minutely.
    13.

    The allegation of the complainant is that when he was coming from Amritsar to Hoshiarpur, the car bearing registration No. PB-08-571, which was comprehensively insured with OP No. 3 – Reliance General Insurance Company was hit by a motor cycle. The car got damaged to a considerable extent. The said car is parked in the workshop of OP No. 1 since 24.9.2007, and has not been repaired. It is the allegation of the complainant that the car of the make, which was purchased by the complainant from opposite party No. 1 is no longer manufactured by OP No. 2, as its spare parts are not available, therefore,the said car cannot become roadworthy, therefore, the complainant is interested for the replacement of the car in question. It is also the case of the complainant that the claim was lodged with OP No. 3, who vide letter dated 18.8.2008 informed that the claim file was closed on 25.10.2007 due to non-availability of spare parts.
    14.

    The opposite party No. 1 has raised the plea that the complainant has violated the terms and conditions of the warranty by installing LPG Kit. That there was no time frame or agreement regarding the repair of the vehicle. The OP No.1 has claimed that the vehicle had been repaired and became roadworthy on 12.11.2007, but the complainant is not taking its delivery nor has paid the repair bill. The vehicle in question had been purchased by the complainant from M/s.Cargo Motors and the same was insured with M/s. Reliance General Insurance Company, Jalandhar.
    15.

    The opposite party No. 2 has raised the plea that the vehicle in question does not suffer from any manufacturing defect. As per terms and conditions of the warranty, the replying OP is liable only, if the vehicle is found defective to the satisfaction of the company. The claim of the complainant is not covered by the warranty, as he has violated the terms and conditions, therefore, the Company is not liable for any loss or damages. The spare parts of the Fiat vehicles are readily available with all the dealers and manufacturer.
    16.

    The opposite party No. 1 has admitted in the reply that the car was fully repaired and became roadworthy on 12.11.2007. The complainant has failed to take the delivery of the car and has also failed to pay the necessary repair charges.
    17.

    The complainant has averred in the complaint that opposite party No. 3 vide letter dated 18.8.2008 has closed the claim file on 25.10.2007 due to non-availability of spare parts. On the other hand, the opposite party has alleged in the reply that the spare parts of the Fiat vehicles are readily available with all the dealers and manufacturer. The OP No. 1 had admitted that the car was fully repaired and became roadworthy on 12.11.2007.
    18.

    Mark-A is the copy of the Warranty Card and its Clause 7 (b) is relevant and material to decide the present controversy between the parties, as such, the Clause 7 (b) is being reproduced :

    “7. This warranty shall cease to operate and become void if:

    (a) xx xx xx xx

    (b) The Car has been subjected to negligence, accident, improper use participation in Motor race/rallies and/or any alteration of what so ever nature;”


    19.

    Admittedly, the car in question bearing registration No. PB-08-571 met with an accident on way from Amritsar to Hoshiarpur via Tanda Road, therefore, as per Clause 7 (b) of the warranty card, referred to above, the warranty ceases to operate and becomes void, therefore, the opposite party No. 2 cannot be held liable to pay any compensation.
    20.

    The matter does not rest here. Even the Clause 6 of the said Warranty Card – Mark-A reads that time spent or any delay in carrying out repairs shall not be relied upon for claiming any compensation/damages or extension of warranty. The period of warranty shall not be deemed to have been extended by repairs or replacement of the parts. This being so, it is held that opposite party No. 2 is not liable to pay compensation/damages on account of delay in carrying out repairs of the vehicle bearing registration No. PB-08-571.
    21.

    Vide para no.4 of the complaint, it is alleged that the accident of the vehicle took place on way from Amritsar to Hoshiarpur via Tanda Road i.e., within the jurisdiction of this Court, therefore, it is held that this Court has got the jurisdiction to try the present complaint.
    22.

    Ex.C-2 is the repudiation letter dated 18.8.2008 and its close scrutiny makes it clear that the claim has been closed by Reliance General Insurance on 25.10.2007 due to non availability of spare parts for the repair of the vehicle.
    23.

    As held in para supra(s) , the car has been fully repaired and is lying with opposite party No. 1, therefore, in the circumstances, we are of the opinion that the ends of justice would be well met, if direction is issued to opposite party No. 3, who had closed the claim file on 25.10.2007, due to non-availability of spare parts, to appoint the surveyor/investigator to assess the loss to the car in question, and thereafter, to settle the claim.
    24.

    As a result of the above discussion, the Insurance Company is directed to appoint the surveyor / investigator to assess the loss to the car in question and then to settle the claim within 30 days from the date of order and in case, the complainant does not feel satisfied, he will have the right to approach this Court by filing a fresh complaint. No order as to costs. The complaint stands disposed of accordingly. Copy of the order be sent to the parties free of cost. File be consigned to the record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Varinder Kumar son of Dalip Singh aged 35 years, resident of Ward No. 12, VPO: Tanda, District Hoshiarpur.


    ....... Complainant

    versus


    1.

    Reliance General Insurance Co. Ltd., through its Branch Manager, Court Road, Hoshiarpur.
    2.

    Reliance General Inurance Co. Ltd., through its Manager, SCO 212-214, Sector 34-A, Chandigarh.
    3.

    Reliance General Insurance Co. Ltd., through its concerned officer, registered office : Reliance Centre 19, Walchand Hira Chand Marg, Ballard Estate, Mumbai.


    ...... Opposite Parties





    1.

    The complainant namely Varinder Kumar has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Stated briefly, the facts of the case are that the complainant got his vehicle (Tavera) bearing registration No. PB-07S-8101 insured from 30.4.2008 to 29.4.2009 from the opposite parties.
    2.

    It is the case of the complainant that on 23.8.2008, the said vehicle met with an accident in District Ludhiana. That DDR No. 5 dated 24.8.2008 was recorded at PS Salemtabri, Ludhiana. That information with regard to the accident was also given to the opposite parties. The opposite parties appointed surveyor, Rajesh Khanna, who inspected the vehicle.
    3.

    It is further the case of the complainant that he suffered loss of Rs. 5,00,000/-. It is the allegation of the complainant that the OP No. 2 repudiated the claim on the ground that the vehicle was used for carrying passengers. The repudiation of the claim is stated to be illegal, as the complainant never used the vehicle for any commercial purpose. It is further the grouse of the complainant that he received letter dated 11.12.2008 from the opposite parties qua which the insurance policy had been cancelled. The said act of the opposite parties is also stated to be illegal, hence this complaint.
    4.

    The opposite parties filed the joint reply. The preliminary objection with regard to suppression of material facts was raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that Tavera Car of the complainant was insured with the replying opposite parties from 30.4.2008 to 29.4.2009. It is also admitted that the complainant lodged the claim. It is denied that the complainant suffered the loss of Rs. 5,00,000/-.
    5.

    It is further replied that as per terms and conditions of the insurance policy, the vehicle insured with the replying opposite parties could not be plied for hire and reward. The matter was duly investigated, and it came in the investigation that the vehicle in question was being plied for hire and reward at the time of accident. The said use of the vehicle was in breach of policy terms and conditions i.e. “Limitation as to Use”, therefore, the claim of the complainant was repudiated and intimation in this regard was sent to him vide letter dated 20.10.2008. It is further replied that the loss to the vehicle was assessed at Rs. 2,93,414/- by the surveyor.
    6.

    In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, insurance policy – Mark C-2, R.C. - Mark C-3, DDR dated 24.8.2008 – Mark C-4, notice – Mark C-5, cancellation of insurance policy – Mark C-6 and closed the evidence.
    7.

    In rebuttal, the opposite parties tendered in evidence affidavit of Satyam Kapoor – Ex. R-1, investigation report – Ex. R-2, survey report – Ex. R-3, consent letter – Ex. R-4 , affidavit of Kashmir Singh - Ex. R-5, statement of Gurmeet Singh – Mark R-6, statement of Varinder Kumar – Mark R-7 and closed the evidence on behalf of the opposite parties.
    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.

    Admittedly, the Tavera car bearing registration No. PB-07S-8101 was insured with the opposite parties from 30.4.2008 to 29.4.2009. The opposite parties have raised the plea hat the matter was duly investigated and it came to light that the vehicle in question was being plied for Hire and Reward at the time of accident, therefore, the claim of the complainant was repudiated.
    10.

    Now, the only point which calls decision from this Court is whether the vehicle bearing registration No. PB-07S-8101 was being plied for Hire and Reward at the time of accident? The answer to this is in the negative.
    11.

    The learned counsel for the opposite parties raised the argument that Sh. Satyam Kapur, Asstt. Legal Manager qua his affidavit – Ex. R-1 had stated that the matter was investigated through Investigator, M/s. Royal Associates. It came to light that the vehicle was being plied for Hire and Reward at the time of accident.
    12.

    The copy of the Investigation report is Ex. R-2. The Survey Report is Ex. R-3 on the record. The consent letter by the complainant is dated 3.10.2008- Ex. R-4 whereby he agreed to accept a sum of Rs. 1,60,000/- in full and final settlement of the claim. The affidavit of the investigator is Ex. R-5.
    13.

    The learned counsel for the opposite parties made a reference to the statement of Gurmit Singh son of Sh. Gurbachan Singh- Mark R-6, wherein he has stated that on 23.8.2008, they hired the vehicle No. PB07-S-8101. That 7/8 passengers were sitting in the said vehicle. That the said vehicle met with an accident. Mark R-7 is the statement of Varinder Kumar Tuli son of Dalip Singh Tuli, wherein he has stated that on 23.8.2008, the vehicle No. PB-07-S-8101 was carrying passengers at the time of accident. It was argued that the vehicle was being used for Hire and Reward, therefore, the claim is not payable.
    14.

    Admittedly, the opposite parties have not produced on record the affidavits of said Gurmit Singh and Varinder Kumar Tuli in support of their statements – Mark R-6 and Mark R-7, therefore, the said statements lose their evidentiary value, as such are not sufficient to prove that the vehicle was being used for Hire and Reward.
    15.

    The opposite parties have produced on record the Consent Letter of the complainant – Ex. R-4, wherein he has agreed to accept the amount of Rs. 1,60,000/- as full and final settlement of the claim. Since the complainant has agreed to receive the amount of Rs. 1,60,000/- qua Consent Letter – Ex. R-4 as full and final settlement of th claim, therefore,he cannot ask the insurance company to pay the amount of Rs. 5,00,000/-.
    16.

    As a result of the above discussion, it is held that the opposite parties have illegally repudiated the claim of the complainant,which amounts to deficiency in service on their part, consequently, the complaint of the complainant is accepted and the opposite parties are directed to pay Rs. 1,60,000/- to the complainant with interest @ 9% per annum from the date of filing of the complaint i.e. 26.3.2009 till realization. Litigation expenses are assessed at Rs. 1,000/- to be paid by the opposite parties to the complainant within one month from the date of receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Ashok Kumar son of Punjab Ram resident of 41/4, Jawahar Nagar, Ludhiana.

    (Complainant)

    Vs.



    1. Reliance General Insurance, Feroze Gandhi Market, Ludhiana through authorised signatory.



    2. Paramount Health Services Pvt. Ltd. 138, 3rd floor, Feroze Gandhi Market, Ludhiana through authorised signatory.

    (Opposite parties)







    O R D E R



    1. By paying premium of Rs.1492/-, complainant from opposite party no.1 obtained Reliance health wise policy for the period 11.4.2007 to 10.4.2008. On 26.1.2008, complainant due to chest pain, diapharesis was admitted in Satguru Partap Singh Apollo Hospital, Ludhiana. He was diagnosed being Acute Anterior Wall MI, Coronary artery disease, hypertension leading to coronary angiography on 28.1.2008 and revealed TVD and treated for underwent PTCA and stenting to LAD on 29.1.2008 and discharged on 31.1.2008. He spent Rs.1,70,000/- on his treatment. Insurance claim along with medical bills, certificate was lodged with opposite party no.1 who referred the case to opposite party no.2 and then vide letter dated 20.2.2008 repudiated the same on the ground that history of hypertension of the complainant was since two years. Under exclusion clause of the policy, it was pre existing ailment. Hence, claim not covered under the policy.


    This repudiation by filing the present complaint under section 12 of the Consumer Protection Act, 1986 has been claimed to be null, void and illegal. It is averred that the complainant was not suffering from any disease nor it was pre-existing disease. Therefore, the claim was illegally repudiated.

    2. Opposite party no.2 in reply admitted obtaining insurance coverage by the complainant and lodging claim thereunder, which was repudiated. But claimed that repudiation is valid and legal as the claim was got investigated from Paramount Health Service Pvt. Ltd TPA of opposite party no.1. After receipt of report of investigation from the TPA and going through the record, it was rightfully repudiated.


    Because, exclusion clause of the policy was attracted as disease of the complainant was pre-existing. There was no deficiency in service on their part and the complainant not entitled for any compensation.

    3. Opposite party no.2 did not contest the complaint and as such was proceeded ex-parte.

    4. In order to prove their respective contentions, complainant and opposite party no.1 led their evidence by way of affidavits and documents.

    5. We have heard the arguments addressed by the ld. counsel for the complainant and opposite party no.1, gone through file, scanned the documents and other material on record.

    6. As obtaining insurance health coverage from the opposite party by the complainant is conceded along with lodging of claim under the policy and repudiating the same. Therefore, we need not to elaborate such aspects. Suffice to say that purpose of the case would be solved if we straight way come to reasons considered to be valid by opposite party no.1 to repudiate the claim.

    7. Ex.C2 is communication under which the claim lodged by the complainant was repudiated. This letter reads as under:

    “With regards to the above mentioned claim we would like to inform you that we have thoroughly scrutinized the documents submitted by you in support of the claim and have arrived at the following conclusion that:

    39 years old male was admitted between 26.01.08 to 31.01.2008 as a case of Hypertension with coronary artery disease. Date of joining of HWG policy of RFCIL is 1104.2007. As per documents attached patient has the history of Hypertension since two years. As per exclusion no. (1) Pre existing ailments are not covered, hence claim stand repudiated.

    In view of the above, the claim reported by you is not admissible as per the terms and conditions of the policy.

    Hence, we are unable to reimburse/admit any amount under the captioned claim”



    8. It is manifest that claim of the complainant was declined, as he had history of hypertension since two years. So, his case fully covered under pre-existing ailment so regretted to pay the same.

    9. In these circumstances, now question is whether hypertension would be a disease so as to term it pre-existing at the time of purchase of the policy.

    10. Be stated that the present policy under which claim was lodged by the complainant was purchased by him for the first time. In other words, it was his first medi-claim policy obtained by the complainant which came in operation on 11.4.2007 till 10.4.2008.

    11. Complainant as per his case due to chest pain etc. got admitted in Satguru Partap Singh Apollo Hospital, Ludhiana. Ex.R.6 is discharge summary showing that he was admitted on 26.1.2008, operated on 28.1.2008 for CAG, on 29.1.2008 for PTCA and discharged on 31.1.2008. He was diagnosed of :

    · Acute anterior wall MI

    · Coronary artery disease

    · Hypertension



    12. In brief history of the patient recorded that he complained of chest tightness, diapharesis 2 hours prior to admission and one episode 2 days prior to admission. Under the history, it is recorded:

    “Patient came with complaint of chest rightness, diapharesis 2 hours prior to admission and one episode 2 days prior to admission”



    13. On angiography report Ex.R.8 recorded that final impression of the ailment was triple vessel disease and advised PTCA and stenting to LAD.

    14. After lodging of claim by the complainant, he was required by opposite party to furnish medical practitioner’s statement. In compliance with medical practitioner’s statement, Ex.R.16 was provided by the complainant to opposite party which in addition to signed by the treating doctor of Satguru Partap Singh Apollo Hospital, Ludhiana was also signed by the complainant. Against column no.4 of the statement, it was mentioned that complainant was suffering from disease HTN/CAD-AWMI/PUD+ Stent to LAD and symptom appeared for the first time on 24.1.2008. But column no.7 of this report is relevant. Wording of column no.7 is as under:

    “Whether the present ailment is pre-existing caused by any pre-existing ailment? If yes, please specify.”



    15. Aforesaid column no.7 is answered by the complainant and his doctor Sh. Rajinder pal Singh as under:

    “Hypertension-two years. Chronic Smoker”



    16. On the strength of this format containing statement of treating doctor of the complainant, signed by the doctor who treated him and the complainant, it was argued that the complainant was suffering from hypertension since 2 years and was a chronic smoker. Disease of hypertension was such that had caused heart problem as there is connected link between disease of hypertension being a chronic smoker and the heart problem. But while purchasing the insurance policy, complainant suppressed this pre-existing disease as apparent from the proposal form Ex.R.25. Therein he answered in negative i.e. not suffering from pre-existing ailments. And as a result under the policy Ex.R23, opposite party rightfully and legally repudiated the claim.


    Because, the disease was pre-existing for which insurance company is not liable to make any payment. On the other hand, on behalf of the complainant, it was argued that hypertension is not any disease, nor the complainant can be termed guilty of suffering with any such disease. Complainant for the first time came to know all the problem when felt chest pain and got examined in Satguru Partap Singh Apollo Hospital, Ludhiana. Therefore, exclusion clause would not be applicable.

    17. The battle now appears to be legal between the parties whether in circumstances of the case hypertension with which the complainant is proved to have suffered since two years along with being a chronic smoker would amount to a disease or not.

    18. On aforesaid legal battle, ld. counsel for the complainant contended that hypertension is not a disease and non disclosing it while purchasing the insurance policy for the first time, would not amount to suppression of material facts. Contrary was arguments of the opposite parties.

    19. Complainant in support of his contention referred us to decision of the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh reported in II (2008) CPJ 213 titled as Life Insurance Corporation of India Vs. Sushma Sharma. Hon’ble Mr. Justice Sh. S.N. Aggarwal, President of the Punjab State Consumer Disputes Redressal Commission, Chandigarh in that case held that hypertension and diabetes are not material diseases and due to non disclosure claim can not be repudiated under section 45 of the Insurance Act. His Lordship concluded that hypertension is not material disease as in these days of fast life, majority of the people suffer from hypertension.

    20. In another case Life Insurance Corporation of India & Anr Vs. Sukhpal Kaur, reported in 2008 (2) CPC, 34, Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh, again took the view that taking of liquor and suffering from hypertension for 10 years would not amount to suppression of material information.

    21 The direct authority on the point is reported as Madhu Jain (Mrs.) Vs. National Insurance Company Ltd. II (2008) CPJ-137 (Delhi State Commission). In that case, policy holder had never been treated, hospitalized or undergone operation for any disease and consumer being layman, was held not supposed to know medical terminology of disease for which he was never hospitalized and treated or undergone operation. It was also held that day- to-day problems which are normal wear and tear of human life, would not be diseases required to be referred in proposal form.

    22 Such legal aspect of the case came for decision before Hon’ble National Commission in a case reported as Life Insurance Corporation of India vs. Sajida Begum III (2007) CPJ-319 (NC). In that case, insured was suffering from hypertension for 15 years and diabetes for 10 years. The insured died due to cardiac respiratory arrest and acute renal failure. Insurance company had repudiated the claim for reasons of suppressing pre-existing disease such as diabetes mellitus, hypertension and diabetic nephropathy. The Hon’ble State Commission of Andhra Pradesh had allowed the claim against which insurance company went in appeal, which was dismissed by the Hon’ble National Commission. In other words, diabetes, hypertension etc. were not taken to be amounting to disease.

    23. In case Aviva Life Insurance Co. India Pvt. Ltd. Vs. T. Umavathi reported in III (2007) CPJ 336 (NC) insured was diabetic since 12 years and there was no evidence that he had prior knowledge of disease which was disclosed to him a day before death by treating hospital. Such was held not amounting to suppression of pre-existing disease.

    24. Hon’ble National Commission in case Santosh Kanwar Vs. Life Insurance Corporation of India reported in 2008 (3) CPC 562 has clearly settled the legal preposition that unless suppression of disease is material, it should not be made ground for repudiation of claim.

    25. On the other hand, ld. counsel for opposite party in order to show that hypertension would amount to a disease, suppression of which would be fetal affecting the insurance policy, drew our attention to a case reported in II (1995) CPJ 62 (NC) titled as United India Insurance Co. Ltd. Vs. Biman Krishna Bose. In that case insured was suffering from hypertension for the last five years which he did not disclose while getting the policy and claim was repudiated. Repudiation was concluded proper.

    26. Second authority relied by the opposite party is Life Insurance Corporation of India vs. Piari Devi & Ors. reported in II (2008) CPJ 156 of Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh, wherein disease of myocardial infarction which was an old disease was suppressed and the same was concluded fraudulent suppression. But in the instant case, question is different whether hypertension would be a disease. Hence, authority has no connection with the point in issue.

    27. Next authority relied is IV (2007) CPJ 248, titled as R.K. Duggal Vs. Life Insurance Corporation of India (Hon’ble Union Territory Consumer Disputes Redressal Commission, Chandigarh. In that case insured was suffering from diabetes and other diseases, which he had not disclosed and died due to respiratory arrest. Said disease was concluded having nexus with death. As facts of the case are distinct from the present one, so, this ratio of the case would be of no help to the opposite party.

    28. Further opposite party pointed to a case reported in IV (2003) CPJ 91 (NC) titled as LIC of India & Ors. Vs. Smt. Shashi Bala. In that case person was diabetic which he did not disclose and there was found nexus between diabetes mellitus and heart attack, so, repudiation was held justified. In the instant case, the ratio of the case is also different from the one with which we are dealing.

    29. When hypertension would not be a disease, so, non disclosure at the time of purchasing the policy consequently in our view would also not amount to suppression of material facts amounting to commission of fraud by the insured with the insurance company. Neither such problem of hypertension can be taken to be a pre-existing disease. Ratio of the Hon’ble National Commission in case United India Insurance Co. Ltd. Vs. Biman Krishna Bose (supra) was decided on 12.1.1995.


    Whereas in subsequent decision Hon’ble National Commission in case Aviva Life Insurance Co. India Pvt. Ltd. Vs. T. Umavathi III (2007) CPJ 336 (NC) Hon’ble National Commission has held that a person who was alcoholic suffering from diabetes mellitus and jaundice would not be sufficient to prove suppression of material facts or that insured had prior knowledge of such disease. On similar analogy there is no proof that complainant had knowledge of suffering with hypertension. So, he can not be accused of suppressing material facts qua his health from the opposite party.

    30. In view of the aforesaid circumstances, we are of the view that opposite party was not justified in repudiating the claim. Consequently, we allow this complaint and sequel thereto direct opposite party to settle and pay insurance claim of the complainant under the terms and conditions of the insurance policy within 45 days of the receipt of copy of order. In peculiar circumstances of the case, no order as to compensation and costs. Copy of the order be supplied to the parties free of costs.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Sri.A.Ramachandra

    S/o. late Ayodhya Ramaiah

    Aged about 70 years, Complainant

    Residing at Sharadadevi Nagar,

    Tumkur city





    AND



    1. The Manager,

    T.G.M.C. Bank,

    J.C.Road, Tumkur Opposite Parties

    2. The Manager,

    Reliance General Insurance,

    Manandi Plaza, No.3,

    St.Marks Road,

    Bangalore-560 002




    ORDER




    2. Through this complaint, the complainant prays for an order against the Opposite Parties (hereinafter called as the OPs for short) to pay Rs.9,51,867/- with interest at 18% per annum from the date of accident till its realization and impose penalty on the OPs for deficiency in service with interest at 12% per annum from the date of complaint till its realization.

    3. The facts given rise to institute the complaint may be summarized as thus:

    It is contended that, he has approached the 1st OP seeking for sanctioning of loan with respect to purchase of one Hitachi. The 1st OP has sanctioned the loan in favour of the complainant for a sum of Rs.12,00,000/-. Out of the said loan amount, the complainant has purchased the TATA Hitachi – Ex-70 vehicle bearing chassis No.3074, model TAT Excavator 2007, M.S.C.No.0703. It is further contended that the 1st OP has insisted the complainant to take the insurance policy to the said vehicle from the 2nd OP. Accordingly the vehicle was insured with the 2nd OP. The 1st OP himself has paid the premium amount of the said policy. However, the complainant has not signed the insurance proposal forum. Likewise the OPs in collusion, got insured the above said vehicle according to their whims and fancy. The complainant was under the impression that the said insurance covered all risks and he has paid the loan amount to the 1st OP as agreed upon.



    4. It is further contended that, the said Hitachi vehicle met with an accident on 27-4-2008 at the work spot near Kolar. In the said accident, the vehicle was toppled and suffered extensive damages. After that, the complainant had approached the 2nd OP and sought for settlement of the claim as per the terms and conditions of the insurance policy since the policy was valid as on the date of accident. The 2nd OP being the insurer of the vehicle is liable to pay the compensation amount as claimed supra, but the 2nd OP has failed to settle the claim. Instead of that, the 2nd OP has issued an endorsement dated 24-6-2008 stating that, the vehicle was not covered under the commercial vehicle (Miscellaneous vehicle) package policy.



    5. It is further contended that, the complainant has left the said damaged Hitachi vehicle at Swastik Enterprises, Tumkur branch for repairs and got repaired by spending a sum of Rs.1,35,867/- .That on account of repair work, the said vehicle was parked in the workshop for four months,. During the said period, the complainant has suffered the following losses;

    1. Rent at the rate of Rs.500/- per hour, for 10 hours per day Rs.500 X120 days ( 4months) (after deducting fuel expenses) incurred loss of Rs.6,00,000/-

    2. Rent of lorry for carrying this Hitachi Rs.20,000/- per month i.e. for 4 months incurred a loss of Rs.80,000/-

    3. Salary to operator, Helpers, writer-cum-Addl. Lorry driver with Bata Rs.20,000/- per month for 4 months a sum of Rs.80,000/-

    4. Interest on loan installment at the rate of Rs.14,000/- PM for 4 months a sum of Rs.56,000/-

    5. Total Hitachi repair charges a sum Rs.1,35,867/- likewise the complainant sustained a loss of Rs.9,51,867/-



    6. It is further contended that, the complainant is not aware of the fact that, the vehicle was not covered with the risk of “Toppling of the Crane”. However, the complainant was under an impression that, the said vehicle had been covered with all the risks. But the OPs in collusion with each other have insured the said vehicle according to their whims and fancy without obtaining his signatures and with an intention to cause wrongful loss to the complainant. On 27-2-009 the complainant got issued a notice to the OPs. The said notice was served on the OPs. Even inspite of service of the notice, the OPs have remained silent and thereby shown their negligence and deficiency in service. Hence this complaint.



    7. The OPs who have been notified of the complaint entered appearance through their counsel and resisted the same by filing their objections.



    8. The gist of the objections is as follows:

    In the objections filed by the 1st OP, it is admitted that this OP has insisted the complainant to insure the vehicle but not with the 2nd OP. This OP while emphatically denying all the complaint averments as false and untenable interalia pleaded that, the complainant had borrowed a loan from this OP to purchase the vehicle from one Srikanta S.Patel who borrowed loan by hypothecating the vehicle with City Corporation Finance India Ltd, Bangalore where the said vehicle was insured with National Insurance Co, Ltd, and the said Insurance policy was in force upto 22-4-2008. The complainant borrowed a loan on 31-1-2008 to purchase the vehicle by clearing the loan with M/s. City Corporation Finance India Ltd, Bangalore. By clearing the loan on the very same day, the complainant hypothecated the vehicle in favour of this OP.


    When the insurance was lapsed on 22-4-2008, this OP requested the complainant to get the renewal of insurance. The complainant insured the vehicle with reliance general insurance Co. on 22-4-2008 which was valid from 23-4-2008 to 22-4-2009. As such the allegations made in the complainant are all false. Further the complainant has cleared the loan of this OP fully on 13-9-2008. Thus, this OP is not liable to pay any damages much less the alleged damages of Rs.9,51,867/-. Accordingly he prays for dismissal of the complaint.



    9. In the version filed by the 2nd OP, it is alleged that, the complaint is not maintainable either in law or on facts and the same is liable to be rejected in limine.



    10. This OP while emphatically denying all the complaint averments as false and untenable interalia pleaded that, this OP Company had issued a commercial vehicle (Misc. vehicle) package policy bearing No.1401382343100660 valid from 23-4-2008 to 22-4-2009 in the name of A.Ramachandra in respect of TATA Excavator bearing chassis No.3074, Engine No.0703. The liability is subjected to the terms and conditions of the policy. As per the policy conditions, toppling slip of the vehicle/crane is not covered and as such the company is not liable to indemnify the insured. The policy is not extended to cover risk of damages to I/V, due to overturning while being used as operational tool for trade.



    11. It is further submitted that, immediately after receiving the information about the incident, without prejudice, the company had arranged for survey and the surveyor after investigation had submitted his report estimating the approximate net loss at Rs.86,078/-. Assessment of damages/loss shall not be construed as an admission of liability. After thorough verification/scrutiny, the company had come to the conclusion that, the claim of the complainant was not payable and accordingly the same had been intimated to the complainant through RPAD on 24-6-08. Therefore, the company is not liable for any consequential loss.



    12. It is further submitted that, this forum has no jurisdiction to entertain the said complaint as the rejection of the claim is done as per law and the conditions of the policy. There is no cause of action as alleged. The complainant has not come with clean hands. He made the above complaint with ulterior motives to make a wrongful gain at the cost of this OP, taking undue advantage of the CP Act. Accordingly he prays for dismissal of the complaint.



    13. In support of the case, the complainant and OPs have filed affidavits and pressed into service of several documents. The complainant has filed written arguments. The documents produced by the complainant and 2nd OP came to be marked as Ex.-P-1 to P-9 and Ex.R-1 to R-4. We have heard the learned counsels appearing for the parties. We have also examined the material available on records



    14. The questions that arise for our considerations are:

    1) Is there any deficiency of service by the OPs?

    2) Is the complainant entitled to the reliefs as prayed for?



    15. Our findings on the above question are here under:

    Point No.1: Yes, against the 2nd OP

    Point No.2: As per order



    REASONS



    16. At the very outset, we must point out that, though the complainant had alleged the collusion between the OPs has failed to establish the same through cogent evidence. Admittedly, the complainant is a signatory to the insurance policy of the vehicle taken from the 2nd OP. This is substantiated through Ex-P-2. When he is a party to the contract and a signatory, it is for him to place cogent evident to show that, his signature to the document was taken by the OPs under threat, promise or practicing undue influence. Neither these facts have been pleaded nor there is any cogent evident in this behalf. Therefore, we can not believe the version of the complainant that the OPs in collusion each other have created the document according to their will and wish.



    17. On merits of the case, it is contended by the learned counsel appearing for the OPs that, the vehicle in question was toppled while working on a lose soil. It is further contended that, when the heavy vehicle was used in a loose soil, the complainant should have taken due care and caution about the protection of the vehicle and the driver thereof. It is his contention that, toppling of the vehicle due to loose soil is not covered under the clauses of the damages covered under Section 1 to 10 of the insurance policy. Therefore, it is necessary to examine the said clause. It reads as thus:

    “Section I – Loss of or Damage to the vehicle Insured

    1. The company will indemnify the insured against loss or damage to the vehicle insured hereunder and / or its accessories whilst thereon

    i. By fire explosion self ignition or lightning

    ii. By burglary house breaking or theft

    iii. By riot and strike

    iv. By earthquake (fire and shock damage)

    v. By flood, typhoon, hurricane, storm, tempest, inundation cyclone, hailstorm, frost

    vi. By accidental external means

    vii. By malicious act

    viii. By terrorist activity

    ix. Whilst in transit by road rail inland waterway lift elevator or air

    x. By landside rockslide



    18. A careful reading of the clauses on which the company has undertaken indemnify the insured against the loss or damaged to the vehicle more particularly “by accidental external means; and by landslide and rockslide”, it is clear that the toppling of the vehicle due to loose soil will also come within the purview of those two clauses. Therefore, we are of the opinion that, the act of the OPs in repudiating the claim of the claimant is not well founded. From the invoice produced by the complainant at Ex-P-4, it is seen that, he has paid a sum of Rs.1,35,867/- towards repairs charges. In so far as, the claim of the complainant for Rs.6,00,000/- at the rate of Rs.500/- per hour for 10 hours per day is concerned there is no cogent evident. Likewise, there is no evidence placed on record to substantiate his claim covered under Sl.No. b to d. No scrap of paper or cogent evidence is placed on record to establish these claims. Therefore, we are not inclined to grant such reliefs. Thus, we hold that, the complainant would be entitled for recover a sum of Rs.1,35,867/- towards repairs charges. In the result, we pass the following:

    ORDER



    The complaint is allowed in part with costs directing the 2nd OP to pay a sum of Rs.1,35,867/- within 8 weeks from the date of this order. Failing which, the said amount shall carry an interest at 10% per annum from the date of this complaint till the date of payment. The costs of the proceedings is fixed at Rs.1000/-. The complaint against 1st OP stands rejected but without costs.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    1. Revathi Sathish Das,

    W/o. Late Satish Das,

    Aged about 41 years,

    Mundi House,

    Near Jarandaya Temple,

    Boloor, Mangalore.



    2. Master Sidharth Satish Das,

    S/o. Late Satish Das,

    Aged 16 years,

    Mundi House,

    Near Jarandaya Temple,

    Boloor, Mangalore.

    Represented by his mother and

    Natural Guardian Revathi Satish Das

    (The Complainant No.1 and 2 are the

    legal heirs of the

    deceased Complainant Satish Das) …….. COMPLAINANTS







    VERSUS



    1. Reliance General Insurance Company Ltd.

    Maximus Commercial Complex,

    4th Floor, Allocyous Road,

    Light House Hill, Hampankatta,

    Mangalore.






    2. Media Assist India Pvt. Ltd.,

    3rd Floor No.49, 1st Main Road,

    Sarakki Industrial Layout,

    J.P. Nagar, 3rd Stage,

    Bangalore – 78. ……. OPPOSITE PARTIES






    1. The facts of the complaint in brief are as follows:

    This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.

    It is submitted that, the complaint was initially filed by Mr.B.Sathishdas, who was a insured of Reliance Healthwise Policy bearing Policy No.282510034471. The said Sathishdas availed the policy on 26.9.2007 from the Opposite Party No.1 and Opposite Party No.2 is the 3rd party Administrator. The Sum insured was Rs.1.00 lakh for the period from 26.09.2007 to 25.09.2009. It is submitted that the above policy includes benefits as domiciliary hospitalization. The above said Sathisdas on 15.8.2009 was diagnosed with cancer left tonsil T3 N3 MO by Doctors of Fr. Muller’s’ hospital. He undertook treatment in the above said hospital and on 22.8.2008 the request of the Complainant for cashless hospitalization dated 25.8.2008 rejected by the Opposite Party stating that the complaints are existing prior to inception of the policy and the claim repudiated under the policy exclusion clause No.1. On 30.10.2008 the Complainant submitted the claim form and all the medical prescriptions and certificates to the Opposite Party but the Opposite Party not honoured the claim.


    On 22.3.2009 the insured Sathidas passed away due to cancer after filing of this complaint and the legal heirs i.e., widow and son of the deceased brought on record and contended that the repudiation made by the Opposite Party is not just and valid and filed this complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay Rs.2.00 lakhs as per policy terms and conditions and also pay Rs.2,00,000/- for compensation and Rs.20,000/- claimed as litigation expenses.



    2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 appeared through their counsel filed version and admitted the policy but it is contended that the insured has misrepresented the Opposite Party by concealing the facts of pre-existing disease. It is submitted that the insured’s illness was existing prior to the inception of the policy hence the claim was repudiated under policy exclusion No.1 and submitted that there is no deficiency and denied the claim of the Complainant and prayed for dismissal of the complaint.

    Opposite Party No.2 despite of serving notice neither appeared nor contested the case till this date. Hence we have proceeded exparte as against the Opposite Party No.2. The acknowledgement placed before the FORA marked as court document No.1.



    3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

    (i) Whether the Complainants prove that the Opposite Parties committed deficiency in service?



    (ii) If so, whether the Complainants are entitled for the reliefs claimed?













    (iii) What order?



    4. In support of the complaint, Mrs.Revathi Satish Das (CW1) – Complainant No.1 filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex C1 to C44 were marked for the Complainants as listed in the annexure. Opposite Parties not led any evidence but filed policy i.e., Ex R1. The Complainants and Opposite Party No.1 produced notes of arguments along with citations.

    We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:

    Point No.(i): Affirmative.

    Point No.(ii) & (iii): As per the final order.
    Reasons



    5. Point No. (i) to (iii):

    In the present case, the facts which are not in dispute is that the insured one Mr.Sathishdas had availed reliance Healthwise policy bearing No.282510034471 on 26.9.2009 for the insured sum of Rs.1,00,000/-. The said policy is valid from 26.9.2007 to 25.9.2009 (as per Ex C1). The said policy included benefits such as Domiciliary Hospitalization, day care treatment, pre and post hospitalization, critical illness. It is also undisputed that the said Mr.Sathishdas on 15.8.2009 was diagnosed with cancer left tonsil T3 N3 MO and he has undertook treatment against the cancer with intermediary breaks in Fr. Muller’s Hospital, Kankanady, Mangalore. On 22.8.2009 i.e., during the pendency of the complaint the insured Mr.Sathishdas passed away due to the cancer and the Complainant No.1 is the widow and Complainant No.2 is the son of the deceased insured brought on record.

    Now the dispute between the parties before the FORA is that the insured Mr.Sathishdas was diagnosed with cancer at Fr. Muller’s Hospital on 15.8.2008. On 22.8.2008 the Opposite Party had rejected the request of the Complainant for cashless hospitalization vide fax dated 25.8.2008 stating that complaints are existing prior to inception of this policy and repudiated the claim under exclusion clause No.1. The Complainants contended that the repudiation is arbitrary and not correct.

    The Complainant No.1 filed affidavit and produced Ex C1 to C44. Opposite Party not led any evidence but filed policy i.e., Ex R1.

    On considering the materials on record, it is the bounden duty of the Opposite Party to prove that the policy holder i.e., the insured Mr.Sathishdas had pre-existing disease at the time of obtaining the policy and which excludes under the terms and conditions of the policy. In a case of like this nature, the entire burden lies upon the Opposite Party Company to prove before the FORA that the claim falls under the exclusion clause.

    However, it is worthwhile to refer policy condition before discussing the points on merits. The Exclusion Clause No.1 defines as under:-

    The Company shall not be liable to make any payment for any claim directly or indirectly caused by, based on, arising out of or howsoever attributable to any of the following:

    “1. Pre-existing diseases/illness/injury/conditions – All diseases, illness, injuries/conditions which are pre-existing when the cover incepts for the first time. However, this policy shall provide for payment of hospitalization expenses for treatment relating to pre-existing diseases, illness, injury from the 3rd year of the policy after two continuous renewals or from the 5th year of this policy after 4 continuous renewals, as the case may be, subject to the plan opted”.



    From the above clause it is very clear that if the Opposite Party Company proves that the claim of the insured falls within the purview of the above exclusion clause then definitely the Complainants are not entitled for any reimbursement of the claim under the policy.

    In the given case, except the policy nothing has been placed on record in order to substantiate the case of the Opposite Party. On the other hand, the Complainant produced the discharge summary as well as histopathology reports, doctor’s diagnosis, laboratory report, medical bills and prescriptions before this FORA. On careful scrutiny of the above documents it revealed that the insured Sathishdas diagnosed as left neck metastasis with skin involvement from Ca (L) tongue and after the entire diagnosis it is revealed that Sathishdas who has been diagnosed to have carcinoma left tonsil T3 N3 MO. He has been treated with Chemoradiation with IMRT for 7 weeks and underwent comprehensive neck dissection on the left side and several other treatments have been given and subsequently on 22.3.2009 Sathishdas passed away due to the cancer.


    There is no record to show that the insured had pre-existing disease at the time of obtaining the policy. The above disease diagnosed by the doctor reveals that he had diagnosed to have/Carcinoma left tonsil T3 N3 MO for the 1st time. Only after the final diagnosis the insured came to know that the disease suffered by him was a cancer and underwent Chemoradiation, neck dissection etc. etc. We are very surprise to note that how the Opposite Party can presume that just because the histopathology report confirm the cancer of carcinoma left tonsil T3 N3 Mo, they cannot assume that the insured was aware of the above disease or the insured had a pre-existing disease. As we know, some of the cancers may not be within the knowledge of the patients till it reaches to the last stage.


    There is no evidence on the record to show that the policy holder ever taken any treatment for the alleged disease prior to his admission in the above said hospital. A person might be suffering from disease like cancer but he may not aware of the same till it reaches to the last stage or other stages. The question always, which has to be determined, is, was the pre-existing disease to the knowledge of the insured. This knowledge can be attributed if the person takes some or the other treatments from a doctor/hospital. In the given facts and circumstances of the case, the insured was not either in the immediate past nor at any stage admitted in the hospital or underwent any treatment. There is no evidence that the insured knew about the disease at the time of taking of the insurance policy. Under such circumstances, the defence taken by the Opposite Party Company has no merits and there is no proof that the insured was aware of the disease at the time of obtaining the policy nor he has suppressed the above disease.

    In this connection we would refer the judgment rendered by the Punjab State Consumer Disputes Redressal Commission, Chandigarh: II (2005) CPJ 3; in National Insurance Company Ltd. versus Suraj Prakash referred by the counsel for the Complainant dealing with the similar contention. The Hon’ble State Commission held that –

    Consumer Protection Act, 1986 – Section 15 – Insurance – Medi-claim policy – Insured admitted for checkup, diagnosed having Aorto Occlusive Disease – Claim repudiated on ground of suppression of pre-existing disease – No evidence produced in support that Complainant knew about disease at the time of taking of policy. Complaint allowed by Forum – order upheld in appeal.

    (Paras 4 and 5)



    Similarly in the present case, there is no evidence produced in support that insured knew about the disease at the time of obtaining the policy.

    In view of the above discussion, we are of the considered opinion that the Opposite Party Company miserably failed to prove the suppression of material facts/pre-existing disease. In the absence of any cogent/ material evidence, we hold that the repudiation made by the Opposite Party Company is not just and valid which amounts to deficiency in service.

    As far as the medical reimbursement is concerned, the policy condition under the head critical illness reproduced herebelow:

    Critical illness:

    If, 30 days after the inception of this Policy, the Insured/Insured Person is at any time during the policy period required to undertake treatment for a Critical Illness as defined herein above, the Sum Insured specified in this Policy shall be doubled specifically for the treatment of such critical illness.

    This Double Sum Insured mentioned in this feature is exclusive and specific for the treatment of the diagnosed critical illness as defined herein above undertaken in a Hospital/Nursing Home as an inpatient and will not be available for other treatment/ hospitalization. For all other treatments/ hospitalization benefits the limits shall be Sum Insured as specified in the Schedule to this Policy unless specifically and explicitly mentioned.



    From the above definition it is very clear that the critical illness such as cancer falls within the purview of that definition. In a critical illness as defined herein above, the sum insured specified in this policy shall be doubled specifically for the treatment of such critical illness. In the given case, the policy sum assured is of Rs.1.00 lakhs and the Complainants i.e., the legal heirs of the insured is entitled for the double amount i.e., Rs.2.00 lakhs. By considering the above, the Opposite Party No.1 i.e., Reliance General Insurance Company Limited is hereby directed to pay Rs.2.00 lakhs to the Complainants along with interest at 9% p.a. from the date of the claim till the date of payment. However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation. And further Rs.1,000/- awarded as cost of the litigation expenses. The payment shall be made within 30 days from the date of this order.

    In the given case the Complainant No.2 is the minor the amount of Rs.1,00,000/- shall be kept in the minor’s name till he attains the majority in any of the nationalized bank in the interest of justice and rest of the amount along with interest shall be entitled by the Complainant No.1.

    Since there is no contractual relationship between the Complainant and Opposite Party No.2 hence complaint against Opposite Party No.2 is hereby dismissed.



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

    The complaint is allowed. The Opposite Party No.1 i.e., Reliance General Insurance Company Limited is hereby directed to pay to the Complainants Rs.2,00,000/- (Rupees two lakhs only) along with interest at 9% p.a. from the date of the claim till the date of payment and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. The payment shall be made within 30 days from the date of this order.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Kailash Yadav son of Sh.Rudal Yadav, resident of House No.1190, Sector 21-B, Chandigarh.



    ….…Complainant

    V E R S U S

    The Reliance General Insurance Company Ltd., SCO NO.145-146 (Top Floor) above VLCC, Sector 9, Chandigarh through its Authorised Officer.



    ..…Opposite Party



    Succinctly put, the complainant purchased an insurance policy for his vehicle bearing registration No.CH03-Y-0697 for the period 2.1.2008 to 1.1.2009 and paid premium of Rs.6,915/- to the OP. During the period of insurance the vehicle met with an accident and it was transported by M/s Lakhbir Singh Dhaliwal, Crane Service after receiving Rs.3,600/- as toeing charges. The vehicle was handed over to Anil Corporation (Workshop) Tata Motors authorized service station and an estimate of Rs.1,46,878/- was forwarded to the OP.


    The OP asked the complainant to furnish consent letter for having accepted Rs.60,000/- towards net of salvage/cash loss basis and the said understanding was forwarded to the OP on 18.9.2008 on a duly notarized stamp paper. He also paid Rs.2,990/- as parking charges to the said M/s Anil Corporation. After getting the vehicle repaired he demanded the sum of Rs.60,000/- but the OP did not release the same even after receipt of legal notice. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.



    2] In their written reply the OP pleaded that immediately upon receipt of information, the surveyor Mr. Puneet Handa was appointed who assessed the loss to the tune of Rs.98,111.49 but as the complainant wished to get the vehicle repaired from a workshop of his choice, accordingly the surveyor assessed the loss to be settled at cash loss amount of Rs.60,000/-. It has been submitted that after verification and inspection of the records it transpired that the complainant had opted for 20% as no claim bonus from the insurance company at the time of taking the policy although he had taken a claim from his previous insurers i.e. Oriental Insurance Company and, therefore, the claim was repudiated vide letter dated 30.9.2008. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made.



    3] Parties led evidence in support of their contentions.

    4] We have heard the ld.Counsel for the parties and have also perused the record.



    5] There is no dispute about it that the matter has been settled between the parties in view of which the OP was to pay a sum of Rs.60,000/- to the complainant as compensation. However, the amount was not paid due to the reason that the complainant while getting the insurance policy from the OP had wrongly claimed No Claim Bonus whereas he, having already got the compensation from the earlier insurer, was not entitled to the same and the proposal form for claiming No Claim Bonus was to be submitted by the complainant giving this understanding that he has not earlier claimed any compensation from the previous insurer.


    The OP, however, has not produced any document to suggest if any wrong information was given by the complainant to the OP in this respect. The OP was well aware that earlier the vehicle was insured with Oriental Insurance Company Limited and before issuing the policy in favour of the complainant, it was the duty of the OP to confirm whether the complainant was entitled to No Claim Bonus or not. If the OP failed in its duty to confirm this fact and issued the policy giving No Claim Bonus to the complainant, the complainant cannot be penalized for the inaction on the part of the OP Insurance Company. The claim of the complainant, therefore, could not be denied on any such ground.



    6] In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly allowed. The OP Insurance Company is directed to pay to the complainant Rs.60,000/- minus (-) Rs.1307/- (No Claim Bonus as mentioned in the Policy of Insurance) i.e. Rs.58,693/- within 30 days from the date of receipt of copy of this order along with Rs.5000/- as cost of litigation, failing which the OP would be liable to pay it with penal interest thereon at the rate of 12% per annum since the filing of the present complaint i.e. 26.5.2009 till its actual payment to the complainant.

    Certified copies of this order be sent to the parties free of cost.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Sandeep Ohri son of Shri Satish Ohri, Red Road, Hoshiarpur.

    ......... Complainant

    versus


    1.

    The Manager, Cargo Motors Pvt. Ltd., BSF Chowk, G.T. Road, Jalandhar.
    2.

    Fint India (P) Ltd., Plot No. B-19, MIDC, Industrial Area, Rajan Gaon, Pune-412210.
    3.

    Reliance General Insurance Co., Anil Dhirubhai Ambani Group, SCO 212-214, First Floor, Sector 34, Chandigarh.


    ......... Opposite Parties





    1.

    The complainant namely Sandeep Ohri has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the complainant got his car bearing registration No. PB-08-571 comprehensively insured from OP No. 3.
    2.

    It is the case of the complainant that when he was coming from Amritsar to Hoshiarpur via Tanda Road, the said car was hit by a motor cycle. The complainant is holding a valid and effective driving licence. The car got damaged to a considerable extent. The complainant immediately informed OP No. 1 for lifting the car from the site of accident.
    3.

    It is the allegation of the complainant that since 24.9.2007, the car is parked in the workshop of OP NO. 1 and has not been repaired. The complainant contacted OP No. 1 on telephone, but of no avail. The complainant is daily incurring the expenditure to the tune of rs. 2000/- to hire a taxi for attending his office at Jalandhar and Amritsar. The complainant got issued a notice through Advocate dated 6.11.2007, whereby the OP No. 1 was called upon to hand over the car after repairs or to supply the new car.

    4.

    It is further the allegation of the complainant that the car of the make, which was purchased by the complainant from OP No. 1 is no longer manufactured by OP No. 2, as its spare parts are not available, therefore, the said car will not become roadworthy. The complainant does not want to retain this vehicle and is interested for its replacement.
    5.

    It is further the case of the complainant that after the accident, the claim was lodged with OP NO. 3. That OP No. 3 vide letter dated 18.8.2008 informed that the claim file was closed on 25.10.2007 due to non-availability of spare parts.
    6.

    The OP No.1 filed the reply. The preliminary objections vis-a-vis maintainability, the complainant is not a consumer, estoppel, jurisdiction and non-joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant has violated the terms and conditions of the warranty by installing LPG Kit. That there was not time frame or agreement regarding the repair of the vehicle. It is further replied that the vehicle had been repaired, but the complainant is not taking delivery of the vehicle nor has paid the repair bill. The replying OP is entitled to recover Rs. 100/- per day as garage charges from 12.11.2007 onwards.
    7.

    It is further replied that the vehicle in question had been purchased by the complainant from M/s. Cargo Motors and the same was insured with M/s. Reliance General Insurance Company at Jalandhar vide Temporary Registration No. PB-08-PT-0571. The complainant has not produced any FIR or Police Report and Photographs with regard to the accident. It is further replied that the car was brought to the workshop of M/s. Cargo Motors at Jalandhar on 24.9.2007 in damaged condition. The complainant was required to produce the relevant papers. The actual process to assess the loss to the car started on 8.10.2007. The complainant had failed to produce the RC and other documents. The car was fully repaired and became roadworthy on 12.11.2007. That despite of various requests, the complainant has failed to take the delivery of the car. The complainant also failed to pay the necessary repair charges as accident claim is not covered under the warranty. It is further replied that the spare parts of the car are available in the market.
    8.

    The opposite party No. 2 filed a separate reply. The preliminary objections vis-a-vis jurisdiction, cause of action and suppression of material facts were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the vehicle in question does not suffer from any manufacturing defect. As per terms and conditions of the warranty, the replying OP is liable only, if the vehicle is found defective to the satisfaction of the company. The claim of the complainant is not covered under the terms and conditions of the warranty. The complainant had violated the terms and conditions of the warranty, therefore, the company is not liable for any loss or damages, direct or consequential to the vehicle. It is further replied that as per information received, the vehicle had been repaired and is lying ready for delivery, but the complainant is not taking the delivery of the vehicle. The spare parts of the Fiat vehicles are readily available with all the dealers and manufacturer.
    9.

    The defence of opposite party No. 3 was ordered to be struck off vide order dated 20.8.2009.
    10.

    In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, letter dated 18.8.2008 – Ex. C-2, insurance policy – Mark C-3 and closed the evidence.
    11.

    In rebuttal, the opposite party No. 1 tendered in evidence affidavit of I.D. Sharma, Sr. Manager (Finance), Cargo Motors – Ex. OP-1, another affidavit of ID Sharma – Ex. OP-3, whereas, opposite party No. 2 tendered in evidence affidavit of Parshana Panday – Ex. OP-2, warranty terms – Mark-A and closed the evidence on behalf of opposite parties No. 1 and 2.
    12.

    The learned counsel for the complainant and opposite parties No. 1 and 2 filed written arguments. We have gone though the written submissions and record of the file minutely.
    13.

    The allegation of the complainant is that when he was coming from Amritsar to Hoshiarpur, the car bearing registration No. PB-08-571, which was comprehensively insured with OP No. 3 – Reliance General Insurance Company was hit by a motor cycle. The car got damaged to a considerable extent. The said car is parked in the workshop of OP No. 1 since 24.9.2007, and has not been repaired. It is the allegation of the complainant that the car of the make, which was purchased by the complainant from opposite party No. 1 is no longer manufactured by OP No. 2, as its spare parts are not available, therefore,the said car cannot become roadworthy, therefore, the complainant is interested for the replacement of the car in question. It is also the case of the complainant that the claim was lodged with OP No. 3, who vide letter dated 18.8.2008 informed that the claim file was closed on 25.10.2007 due to non-availability of spare parts.
    14.

    The opposite party No. 1 has raised the plea that the complainant has violated the terms and conditions of the warranty by installing LPG Kit. That there was no time frame or agreement regarding the repair of the vehicle. The OP No.1 has claimed that the vehicle had been repaired and became roadworthy on 12.11.2007, but the complainant is not taking its delivery nor has paid the repair bill. The vehicle in question had been purchased by the complainant from M/s.Cargo Motors and the same was insured with M/s. Reliance General Insurance Company, Jalandhar.
    15.

    The opposite party No. 2 has raised the plea that the vehicle in question does not suffer from any manufacturing defect. As per terms and conditions of the warranty, the replying OP is liable only, if the vehicle is found defective to the satisfaction of the company. The claim of the complainant is not covered by the warranty, as he has violated the terms and conditions, therefore, the Company is not liable for any loss or damages. The spare parts of the Fiat vehicles are readily available with all the dealers and manufacturer.
    16.

    The opposite party No. 1 has admitted in the reply that the car was fully repaired and became roadworthy on 12.11.2007. The complainant has failed to take the delivery of the car and has also failed to pay the necessary repair charges.
    17.

    The complainant has averred in the complaint that opposite party No. 3 vide letter dated 18.8.2008 has closed the claim file on 25.10.2007 due to non-availability of spare parts. On the other hand, the opposite party has alleged in the reply that the spare parts of the Fiat vehicles are readily available with all the dealers and manufacturer. The OP No. 1 had admitted that the car was fully repaired and became roadworthy on 12.11.2007.
    18.

    Mark-A is the copy of the Warranty Card and its Clause 7 (b) is relevant and material to decide the present controversy between the parties, as such, the Clause 7 (b) is being reproduced :

    “7. This warranty shall cease to operate and become void if:

    (a) xx xx xx xx

    (b) The Car has been subjected to negligence, accident, improper use participation in Motor race/rallies and/or any alteration of what so ever nature;”


    19.

    Admittedly, the car in question bearing registration No. PB-08-571 met with an accident on way from Amritsar to Hoshiarpur via Tanda Road, therefore, as per Clause 7 (b) of the warranty card, referred to above, the warranty ceases to operate and becomes void, therefore, the opposite party No. 2 cannot be held liable to pay any compensation.
    20.

    The matter does not rest here. Even the Clause 6 of the said Warranty Card – Mark-A reads that time spent or any delay in carrying out repairs shall not be relied upon for claiming any compensation/damages or extension of warranty. The period of warranty shall not be deemed to have been extended by repairs or replacement of the parts. This being so, it is held that opposite party No. 2 is not liable to pay compensation/damages on account of delay in carrying out repairs of the vehicle bearing registration No. PB-08-571.
    21.

    Vide para no.4 of the complaint, it is alleged that the accident of the vehicle took place on way from Amritsar to Hoshiarpur via Tanda Road i.e., within the jurisdiction of this Court, therefore, it is held that this Court has got the jurisdiction to try the present complaint.
    22.

    Ex.C-2 is the repudiation letter dated 18.8.2008 and its close scrutiny makes it clear that the claim has been closed by Reliance General Insurance on 25.10.2007 due to non availability of spare parts for the repair of the vehicle.
    23.

    As held in para supra(s) , the car has been fully repaired and is lying with opposite party No. 1, therefore, in the circumstances, we are of the opinion that the ends of justice would be well met, if direction is issued to opposite party No. 3, who had closed the claim file on 25.10.2007, due to non-availability of spare parts, to appoint the surveyor/investigator to assess the loss to the car in question, and thereafter, to settle the claim.
    24.

    As a result of the above discussion, the Insurance Company is directed to appoint the surveyor / investigator to assess the loss to the car in question and then to settle the claim within 30 days from the date of order and in case, the complainant does not feel satisfied, he will have the right to approach this Court by filing a fresh complaint. No order as to costs. The complaint stands disposed of accordingly. Copy of the order be sent to the parties free of cost. File be consigned to the record room.
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