New India Assurance

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BEFORE THE DISTRICT CONSUMER FORUM AT ADILABAD
Date of filing : 08.05.2008.
Date of disposal : 17.03.2009.

C.C.No.45/08
Between:-
Sukhdev Khaliya, S/o.Mishrilal,
Age:59 years, Occ:Tax Consultant,
Owner of Vehicle Car No.AP.01.J.3132,
R/o.Indiranagar, Nirmal, Dist.Adilabad.
…Complainant.

//AND//

The New India Assurance Company Ltd.,
Rep.by its Branch Manager,
Branch Office, Nirmal, Dist.Adilabad. …Opp.Party.




Counsel for Complainant : Mr. B.Praveen.


Counsel for Opposite Party : Mr. S.Raja Ram.

QUORUM:-
SRI.P.THIRUPATHI REDDY, M.A., L.L.B. : PRESIDENT.

SRI.C.RAMA REDDY, B.A., : MEMBER.
TUESDAY THE 17th DAY OF MARCH 2009.
-:ORDER:-
Order Pronounced by President:-
This complaint is filed under section 12 of C.P. Act 1986.
The brief facts of complaint are as follows:

1. The complainant is resident of Nirmal and owner of Hyundai Car bearing No.AP.01.J.3132 and the complainant got insured the above said vehicle with the Opp.Party vide Policy bearing No.610604/31/07/01/0000308 which was valid from 25-5-2007 to 24-5-2008. Unfortunately the vehicle of the complainant got damaged in a motor vehicle accident occurred on 15.12.2007 at 2100 hours on NH.No.7 at Narsampally X-Road. The vehicle of the complainant damaged badly. The complainant has informed the accident to the Opp.Party. In turn the Opp.Party sent the claim form and the complainant furnished the same to Opp.Party duly filled on 17.12.2007 claiming the vehicle damage. The Opp.Party asked the complainant to furnish the relevant documents pertaining to the damaged vehicle and police record. In turn the complainant has complied the same vide letter dt:12.01.2008. The Opp.Party has repudiated the claim of the complainant vide letter dt:13.03.2008 and subsequently on 17.03.2008 alleging that the driver of vehicle in question was not holding valid driving license on the date of accident. The above acts of the Opp.Party in avoiding the payment of policy amount to the complainant comes under the deficiency of service.
Hence the complainant prayed this Forum may kindly be pleased to allow the complaint as under:
  • Direct the Opp.Party to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) to the complainant covered by the policy in question.
  • Direct the Opp.Party to pay interest @ 18% per annum upon the awarded amount from the date of complaint till its realization.
  • The costs of this complaint may be awarded to the complainant, in the interest of justice.

2. The Opp.Party contested the petition and filed counter. The contents of counter are as follows:
After the accident, the complainant sent a claim form and in the routine course an investigator was appointed. The Surveyor submitted his report dt:09.01.2008 assessing the damages to a tune of Rs.55,977.41 paisa. It is further revealed in the investigation that the vehicle driven by its driver namely D.Ganesh without effective driving license. It is revealed that the vehicle met with an accident on 15.12.2007. The driving license of the said driver expired on 12.09.2007. However the said driver after the date of accident got renewed the driving license with effect from 17.12.2007 to 16.12.2010. It is clear that after the expiry of 12.09.2007 there was no renewal even within 30 days of grace period allowed for renewal as per the M.V. Act and rules. It is submitted that the complainant is entering into a chance litigation and the claim of the complainant is vexatious, frivolous and liable to be dismissed in limini. The Opp.Party prayed to dismiss the complaint.
3. Both parties filed Proof Affidavits.
4. On behalf of complainant Ex.A1 to A11 are marked. No documents are filed on behalf of Opp.Parties.
5. Now the point for consideration is whether there are grounds to allow the petition?
6. Heard both sides. The Opp.Party repudiated the claim of the complainant only on the ground that the driver of the vehicle did not have effective driving license on the date of accident i.e., 15.12.2007. It appears the due date of the license expired on 12.09.2007 and the same was got renewed on 17.12.2007. In this connection we feel it reasonable to relied on
National Insurance Co.Ltd.
Vs.
Swaran Singh and others.
That the Parliament deliberately used two different expressions ‘effective license’ in section 3 and ‘duly licensed’ in sub-section (2) of Section 149 of the Act which are suggestive of the fact that a driver once licensed, unless he is disqualified, would continue to be a duly licensed person for the purpose of Chapter XI of the Act.

In the case of this nature The Supreme Court of India has, as early as in 2003, in the case of
United India Insurance Co.Ltd.,
Vs.
Loharu & Ors.
Categorically held that at the time of taking a job “if a driver produces a license which on the face of it looks genuine, the owner of the vehicle is not expected to find out whether the license has in fact been issued by a competent authority”. Relying on this verdict of the apex Court, the National Consumer Disputes Redressal Commission too has in National Insurance Co.Ltd., Vs.Harpal Singh, 2005 CTJ 974(CP), allowed the complaint of the truck owner whose truck met with an accident and the Insurance Company repudiated the claim. The ratio of such verdicts is that where the owner has satisfied himself that the driver has a license and is driving competently, there should then be no breach of Section 149(2)(ii) of the Motor Vehicles Act. Repudiation of insurance claims on this ground is not sustainable.

In view of the above case law, the objection raised by the Opp.Party is not tenable and we feel it is a fit case to grant compensation.

7. Coming to the point of compensation it appears the Surveyor after detailed inspection and enquiry assessed the loss and compensation is payable at Rs.55,977.41 ps. Perused documents filed by complainant. As seen from the claim of the complainant, he furnished payments receipts Ex.A9 to A11 one for Rs.75,000/- another for Rs.9,453/- total amount said to have spent by complainant is Rs.84,543/-. The amount of Rs.75,000/- sent by D.D.No.771880 dt:10.01.2008. Thus we feel it reasonable to pay compensation of Rs.85,000/-.

8. In the result the complaint is partly allowed. The Opp.Party is directed to make a payment of Rs.85,000/- (Rupees Eighty Five thousand Only) within the period of one month from the date of pronouncement of this order, failing which the above amount will carry interest @ 9% p.a. from the date of filing of complaint and the complainant shall be at liberty to proceed against them U/S.25/27 of Consumer Protection Act 1986.

Dictated to Steno, transcribed by her, corrected by us and pronounced in the Open Forum on the 17th day of March 2009.
Sd/- Sd/-
MEMBER PRESIDENT

Appendix of Evidence

Witnesses Examined

-None- -None-
Exhibits Marked


ON BEHALF OF COMPLAINANT ON BEHALF OF OPP. PARTY

Ex.A1: Xerox copy of Certificate of Registration.
Ex.A2: Xerox copy of Driving License.
Ex.A3: Xerox copy of F.I.R. Dt:16.12.2007.
Ex.A4: Xerox copy of Certificate of Insurance of Private
Car.
Ex.A5: Xerox copy of Terms & Conditions.
-Nil-
Ex.A6: Xerox copy of Motor Claim Form.
Ex.A7: Repudiation letter dt:13.03.2008.
Ex.A8: Letter from Opp.Party to complainant
dt:17.03.2008.
Ex.A9: Xerox copy of Receipt for Rs.75,000/-.
Ex.A10: Xerox copy of Receipt for Rs.9,543/-.
Dt:11.01.2008.
Ex.A11: Xerox copy of Invoice Cash/Credit.

Sd/- Sd/-
MEMBER PRESIDENT
//Certified True Copy//
//By Order//
«134567

Comments

  • adminadmin Administrator
    edited September 2009
    ORDER SRI.K. VIJAYAKUMARAN, PRESIDENT.

    Complainant filed this complaint for realization of insurance amount, compensation and costs etc.

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

    Complainant’s husband was employed in gulf. While so he has joined a Group Janatha Personal Accident Policy sponsored by the opp.parties on 29.1.1999The policy save card issued under the above scheme bearing No.125536 was issued to the complainant’s husband. As per the condition in the policy in case policy holder died during the subsistence of the policy within 10 years in accident. the nominee will kept Rs.5,00,000/-. The complainant’s husband sustained injury in an accident in July 2004 at gulf. After that on 27.7.2004 he was brought home for further treatment attempted in the Thiruvananthapuram Medical College were he succumbed in the injury on 17.8.2004. The complainant is the regal heir and nominee as per the above policy and as such she is entitled to get Rs.5,00,000/- as per the conditions in the policy. The complainant produced the death certificate and claim form before the first opp.party But her claim was repudiated on 14.10.2004. Hence the complaint.

    The Opp.parties filed a joint version contending, interalia, that the complaint is not maintainable either in law or on facts. There is no privity of contract between the complainant and opp.party and therefore there is no consumer relationship between the complainant and this opp.party. The opp.party has entered into a contract of Insurancef with M/s. Dollars India Card Ltd., Chennai and accordingly a mater policy bearing No.4771060000846 dt. 29.1.1999 was issued to the card holder from time to time under the Long Term Janata Personal Accident Policy. The cardholders of the Janata Personal Accident Policy were enrolled by the said Dollara India Card Ltd and the complainant’s husband was Sri. Reghunathan . It is a Group Personal Accident Policy and not an individual policy to respective cardholders. The period of policy was 10 years with death cover only. On the basis of the Agreement entered between Dollars India Card and as per the Master Policy the insurer has insured in the beneficiaries and issued individual Janatha Personal Accident Policy certificate. As per the policy certificate was issued the complainant the sum assured was Rs.5,00,000/- . For that a nominal sum of Rs.280/- was only received towards premium. The policy had validity from 29.1.1999 to 28.1.2009 as per the clause 5 of the condition of policy, the insured has every right to cancel the policy without assigning reason and in such case to refund the pro rata premium of the un expired portion of the risk. Due to the operational constrains and risk, the Regional Office of the opp.party asked all the branches to cancel the Janata Personal Accident Policy with effect from 1.5.2003 and to refund the pro-rata premium of the unexpired portion of the risk. Accordingly the Janata Personal Accident Policy was issued to the complainant’s husband was also cancelled and pro-rata premium for the unexpired period was refunded and the same was acknowledged by the complainant. The insurer has every right to cancel the policy by canceling the policy the complainant received this refunded premium without out protest or in objection. Now the complainant lhas approached the Hon’ble Forum alleging deficiency of service and unfair trade practice. For which the complainant has no right under condition number of the policy . This opp.party has rightly cancelled the policy and they have acted only in accordance with the conditions challenging the conditions of the policy is not at all a consumer dispute within the purview of Consumer Protection Act. The prayer of the complainant to disburse the insurance policy does not arise such policy is already cancelled. The policy was cancelled as early as 1.15.2003 whereas the subject risk here in case taken place on 17.8.2004. The complainant is not entitled to get the any benefits under the policy which was no longer in the existence as on the date of incident. There is no deficiency in service on the part of the opp.party The complaint is bad for non-jonder of necessary parties M/s. Dollars India Card Ltd is not made a party with whom only this opp.party has privity of contract. Hence the opp.parties prays to dismiss the complaint. With their costs.

    Points that would arise for consideration are:
    1.[FONT=&quot] Whether there is deficiency in service on the part of the opp.parties[/FONT]
    2.[FONT=&quot] Reliefs and costs.[/FONT]
    For the complainant PW.1 is examined Ext. P1 to P4 are marked.
    For the opp.party DW.1 is examined. Ext. D1 to D5 are marked.

    Points

    There is no dispute that then there was a contract of Insurance between the 1st opp.party and the complainant’s husband Reghunathan. It was a Janatha Personal Accident Policy and the term of the policy was 10 years from 29.1.99 to 28.1.09. According to the 1st opp.party the contract of insurance was between opp.party 1 and M/s. Dollars India Card Ltd. and a Master policy bearing No.4771060000846 dt. 29.1.99 was issued to the card holders lwhich is not an individual policy but a giving Insurance Policy and that the complainant’s husband was a subscriber of the said policy. It is the further case of the 1st opp.party that the policy had certain conditions and under condition. NO.5 of the said policy the insurance company reserved their right to cancel the policy at any time without assigning any reason after paying the prorate premium for the unexpired portion of the risk and in exercise of that right they cancelled the above Janatha Personal Accident Policy with effect from 1.5.2003 and the policy in respect of the complainant’s husband was also cancelled.

    The contention of the learned counsel for the complainant is that the 1st opp.party has no right to cancel the policy unilaterally without giving notice to the policy holders. It is further argued that copies of condition was not given to the policy holders nor they were informed about the conditions and as such unilateral cancellation of policy is unsustainable.

    Now the question is whether or not the cancellation of the policy is valid . The definite contention of the 1st opp.party is that they have every right to cancel the Janatha Personal Accident Policy at any time invoking condition NO.V after giving notice to the policy holders and that they have given due notice to the policy holders and also given the prorate premium for the unexpired portion. Every policy will have terms and conditions and the policies are accompanied with conditions. It cannot be believed that in the p[olicy of the complainant’s husband the terms and condition were not annexed condition No.V of Ext. D1 policy is an follows: “ The company may at any time by notice in writing cancel this policy, provided that the company shall in that case return to the insured the then last paid premium less a pro-rata part thereof for the portion of the current insurance period which shall have expired ……” Ext. D3 series shows that the opp.party has send a notice under certificate of posting in the address of the insured furnished in the policy. A notice which is correctly addressed and properly stamped can be presumed to be delivered Ext.P4 also would establish that the notice and the cheque for prorate premium have been received by the insured. So in our view the cancellation of the policy by the 1st opp.party invoking condition V is valid and proper

    Now the question is whether the complainant is entitled to get the policy amount after cancellation of the policy or not. Though the policy was cancelled with effect from 1.5.2003 the insured did not challenge the same during his life true. After one year land 3 months after the cancellation when the insured died the complainant lwho is the wife of the insured is challenging the cancellation and claiming the insurance amount when once the contract of insurance is cancelled the insured ceased to be a consumer of the 1st opp.party and the 1st opp.party is lno longer bound to entertain the claim. As argued by the learned counsel for 1st opp.party when the risk occurred on 17.81.2004 the policy was not subsisting and therefore the insured cannot be said to be a consumer and reliance can be drawn from the decision of National Commission reported in 2008 [1] CPJ 384. Therefore we hold that the complainant is not entitled to get the policy amount. There is no deficiency in service on the part of the opp.party. Point found accordingly.

    In the result the complaint fails land the same is hereby dismissed. No costs.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    ORDER Speaking through Smt.Meenakshi Kulkarni, Lady Member.

    1. This complaint is filed on 29.12.2008 as per Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to the “Act”) against the Opposite Party (in short the OP) for awarding Rs.2,61,910=00 towards damage to the Drip Irrigation System, Rs.50,000=00 towards payment of Bank interest, Rs.20,000=00 for compensation and Rs.5,000=00 towards cost of litigation.

    2. The facts of the case in nutshell as is narrated by the complainant are as follows: The complainant is a progressive farmer owning agricultural land at Nidagundi Village bearing Survey No.404. He took a Loan on Rs.5,00,000=00 from S.B.I. to install Drip Irrigation System in the said agricultural land. The said System was insured with OP by paying a huge premium through S.B.I. and the risk was covered under Drip Irrigation Policy bearing No.670906/47/07/98/00000195 which was valid from 06.06.2007 to 05.06.2008.


    3. The complainant grew sugarcane in his land which was sent to Sugar Factory on 02.06.2008. Unfortunately, the very next day i.e. on 03.06.2008, at about 12.00 noon, an accidental fire to the husk was caught due to which entire pipes of Drip Irrigation System were burnt. The accidental fire spread to the entire field and the entire Irrigation System was burnt. The complainant reported about the incident to the Revenue Authorities i.e. Village Accountant who issued a Certificate on 04.06.2008 regarding the accidental fire and the damage to the entire Drip Irrigation System pertaining to the land of the complainant. The village in which the land is situated does not have fire brigade Office. So, the said matter was not reported to the fire brigade. But, the said incident was reported to the S.B.I., Nidagundi, because the said Irrigation System was installed by availing Loan from the Bank. The complainant also informed about the accident to the OP and the Survey was conducted on 05.06.2008.


    4. In this incidental fire, the entire Drip Irrigation such as Ram, Start Nipple, Rubber Gromate, Plug, PVC Pipes, Ball Value, Flush Value, Fittings etc. were damaged. The cost of the said damage went to the tune of Rs.2,61,910=00. The said valuation was intimated to the OP and the details were furnished along with the evaluation report. The complainant also submitted all the bills and necessary documents to the OP for seeking the claim.


    5. OP instead of settling the claim, after going through the documents and their own Survey Reports. Surprisingly has repudiated the claim vide letter dated: 20.11.2008 on a vague ground of not informing the accidental fire to the Police. The complainant was ignorant about the informing the incident to the police and the said matter is also not mentioned in the policy. The second reason assigned for repudiation was that the complainant did not remove the Drip Irrigation System after the harvest. The complainant had not planned to burn the husk after the removal of the sugarcane. Hence, there was no need to remove the Drip Irrigation System and no such condition was put in the policy. The complainant has suffered heavy loss due to the act of the OP and prays to award Rs.2,61,000=00 towards damages to Drip Irrigation System, Rs.50,000=00 towards Bank interest, Rs.20,000=00 for mental agony and Rs.5,000=00 towards cost of the litigation.


    6. After receipt of the notice, in the objection OP totally denies the complaint as vexatious and frivolous. However, OP admits about the Policy issued to the complainant bearing No.670906/47/07/98/00000/195 which was valid from 06.06.2007 to 05.06.2008. The OP totally denies the cost of damage caused to the Drip Irrigation System was to the tune of Rs.2,61,910=00 and also other costs. OP also denies the reporting of incident to the Village Accountant and not having a fire brigade office in the said village.


    7. The OP submits that it was only on the intimation by S.B.I. Nidagundi dated: 03.06.2008 which made them aware about the incidents. Depending upon this letter, Sri.D.J.Dhanshetty was appointed as Surveyor and Loss Assessor to carry-out the survey and assess the damages. He estimated the loss due to fire to Rs.1,73,974.50. The Surveyor has also suggested to deduct the Government Subsidy received by the complainant.


    8. The OP also submits that the complainant was supposed to protect the Drip Irrigation System with utmost care and was also required to remove the PVC pipelines immediately after cutting of sugarcane. But, the complainant has failed to do so. In addition, the complainant has not informed about the said fire to the fire brigade office and to the police. Due to this, OP lost the opportunity of getting proper investigation done by the police and independent investigator. Hence, the claim of the complainant was repudiated on 20.11.2008 and was sent to State Bank of India, Nidagundi. The copy of the same was endorsed to the complainant. Hence, the repudiation of the claim of the complainant is legal, valid and proper. No cause of action has arisen to the complainant to file the said complaint and OP prays to dismiss the complaint with cost.


    9. Both the parties have filed affidavit in lieu of evidence to prove their case. The complainant has filed written argument and OP has filed a Memo stating that his objection and affidavits can be adopted as written arguments. In the circumstances, the following points do arise for our consideration in deciding the case. They are: (i) Whether OP has rendered deficiency in service to the complainant thereby entitling him to the relief as is sought for? (ii) What Order?


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


    11. We shall substantiate our findings on the following: R E A S O N S POINT NO.1: The complainant Counsel has submitted 6 documents in support of his case. They are marked as Exhibit C1 to C6. The advocate for OP has submitted 4 documents which are marked as Exhibit OP1 to OP4. Perused all the documents.

    12. Exhibit C1 and OP4 are the repudiation letter dated: 20.11.2009 by the OP to the complainant. In this, the main grounds for repudiating the claim of the complainant are; (i) not reporting the incident of fire either to police or to fire brigade, (ii) non-removing the PVC pipelines after sugarcane cutting.

    13. According to the OP, both of these amounts to the complainant are breach of Terms and Conditions of the Policy. Hence, the OP has repudiated the complaint.


    14. As far as the contention No.1 of not informing the incident of fire to the police or to the fire brigade is concerned, the complainant has already stated in his complaint that there is no fire brigade office in the village where the agricultural land of the complainant is situated. Hence, the incident of accidental fire could not be reported to the fire brigade. The information to the police was according to complainant was unwarranted because the complainant has installed the Drip Irrigation in his field by availing the loan from the S.B.I. So, he informed about the accidental fire to the S.B.I., Nidagundi because it was through the S.B.I. that the insurance was taken against the said Drip Irrigation System. However, the complainant has reported about the accident to the Revenue Authorities i.e. Village Accountant. This he has quoted in Para No.4 in complaint and his affidavit at Page No.2. The complainant has produced Certificate issued by Village Accountant which is dated: 04.06.2008 (Exhibit C2). The Op also nowhere in his objection has challenged this submission of the complainant. So, we believe the fare submission of the complainant that there is no fire brigade office in the Nidagundi Village. As far as information to police is concerned, the complainant has stated that he has informed about the incident to the S.B.I. Nidagundi, because of loan facility availed by the complainant. In our view, non registration of the police case regarding the incident does not give rise to any adverse inference. To support this, we goby Ruling in I.L.R. 1996 KAR 161 in H.N. Nagarajan.J in Meenakshamma V/s Hanumanthappa, it is held in this case as hereunder: “(i) The claim is a summary civil proceeding wherein the claimant is required to rove the rash and negligent driving of the vehicle by independent evidence. Hence, non-registration of a police case regarding the accident does not give rise to any adverse inference that no such motor accident occurred” So, not informing about the accidental fire to the police station cannot be held a ground for repudiation of the valid claim of the complainant.


    15. The second reason for repudiation of the complainant’s claim according to OP is, non removal of PVC pipes after sugarcane cutting. However, it can be seen from the Exhibits produced by the complainant before this Forum that the sugar cutting is done on 02.06.2008. Exhibit C4 is a Weight List issued by the Bilagi Sugar Ltd., Badagandi. This is a Slip issued against acceptance of sugarcane waiving 13.350 m.tone on 02.06.2008 at 3.24 AM. There is no dispute among the parties about the accidental fire occurring on 03.06.2008 at 12.00 noon. So, the reason given by the complainant that he did not had sufficient time to remove the Drip Irrigation System after cutting of sugarcane is proved with cogent and acceptable documentary evidences (para 9, Page 3 of complaint and affidavit). Hence, the repudiation of the valid claim of the complainant by the OP is a deficiency in service rendered by the OP to the complainant. This is also because there is no dispute between the parties about the valid insurance policy of the complainant at the time of the accidental fire. 16. Now next point that arises how much compensation complainant is entitled for? Exhibit OP3 is the Survey Report of independent Surveyor and Loss Assessor of OP. In this, the loss assessed by the OP’s Surveyor is Rs.1,73,974.50 and it is been admitted by the OP in his affidavit at Para No.7 that if at all OP was to pay the compensation the estimated loss would be Rs.1,73,974.50. With the observations for a deducting of Government Subsidy received by the complainant. However, the OP has nowhere stated as to how much subsidy the complainant has received or would be entitled to receive. The complainant is also silent in his complaint about the said point. When it is so, in our view, the complainant is entitled to Rs.1,73,974.50 towards the damages to his Drip Irrigation System installed in his agricultural land. For this, we rely upon Ruling Hon’ble National Consumer Disputes Redressal Commission, New Delhi in 2008 (4) CPR 83 (NC) (National Insurance Co. Ltd. through its Branch Manager & Anr. - Appellants V/s M/s Shree Shyam Cold Storage through its Director -Respondent). It is Held that IMPORTANT POINT Report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance. The complainant is also entitled to Rs.10,000=00 towards mental agony and Rs.2,000=00 towards cost of litigation. With this, we answer to point No.1 in partly affirmative. 17. POINT NO.2: In the light of our affirmative finding on Point No.1 supra, 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.1,73,974.50 (Rupees one lakh seventy three thousand nine hundred and seventy four rupees fifty paise) towards the vehicle damages within 2 months of passing of this Order, failing which complainant is entitled to interest at the rate of 12% 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 as to interest on mental agony and cost of litigation of the complaint. 4) The free copy of this order shall be sent to both the parties. (This order is dictated to the Stenographer, transcripted corrected and then pronounced in the open Forum on this 19th day of March -2009) (Sri.Viswanatha Reddy, B.K.) President. ( Smt.Minakshi.R.Kulkarni ) , Lady Member ( Shri. S.G.Kulkarni ) Member.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    ORDER Speaking through Smt.Meenakshi Kulkarni, Lady Member.

    1. Aggrieved by the acts of the Opposite Party (in short the OP), this complaint is lodged by the complainant on 20.01.2009 under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to the “Act”) for awarding Rs.95,000=00 towards damage to his vehicle along with 12% interest, Rs.25,000=00 towards mental agony andRs.10,000=00 towards cost of litigation etc.


    2. The facts of the case in nutshell as is narrated by the complainant are as follows: The complainant is the owner of the vehicle bearing No.KA-28/A-1678. The said vehicle was insured with OP under Insurance Policy bearing No.670906/31/07/01-00001588. Unfortunately on 17.02.2008, the said vehicle met with the accident and the same was intimated to the Manager of the OP. The spot inspection of the accident was conducted by independent loss and assessor one Mr. N.S.Pati. After the said inspection vehicle was taken to Bagalkot for repairs and damaged spare-parts were replaced with the prior intimation to the OP.


    3. The complainant submitted all the bills along with the claim form to the OP to indemnify the loss. OP asked for clarification of some of the documents to settle the claim. The complainant obeyed the same. Inspite of this on 10.07.2008, OP repudiated the claim of the complainant on the false contention of driver not having the valid driving licence. So, the complainant issued a legal notice to the OP through an advocate on 21.10.2008 calling upon to pay Rs.95,000=00 along with 10% interest from the date of accident till its realization and has filed the said complaint.


    4. The complainant prays Rs.95,000=00 towards repairs of damages caused to the vehicle along with 12% interest from 17.02.2008 till its realization. Rs.25,000=00 towards mental agony and Rs.10,000=00 towards cost of proceeding.



    5. The OP after receipt of the notice in his Written Version claims that the complaint is totally false and not maintainable either in Law and facts of the case. Op admits that the vehicle bearing No.KA-28/A-1678 was insured under the goods carrying commercial vehicle (open) Policy-B Package bearing No.670906/07/01/0000 1588 for a period from 22.07.2007 to 21.07.2008. The OP received the claim intimation of the accident from the complainant on 19.02.2008 and immediately Mr. N.S.Patil was appointed to conduct the spot Survey who submitted his Report on 18.03.2008. After receipt of the Claim Form from the complainant and the estimate, OP appointed Sri.C.S.Kadlimatti for the final Survey who visited the Repairer’s workshop of M/s. G.N.Makandar Garage of Bagalkot who assessed the loss sustained by the vehicle. The Final Survey Report was submitted on 05.04.2008 and the loss was assessed at Rs.35,600=00 approximately. After the said Survey, Mr. A.R.Vaidya was appointed for re-inspection of the replaced price and repair works. He reported his findings on 23.04.2008 about the satisfactory repair works made to the vehicle and fixed the net liability to Rs.35,303.75 minus Rs.50=00 for expected salvage.



    6. The accident of the vehicle dated: 18.02.2008 was not reported to the Police and no Crime was registered. It was noticed that the driver of the vehicle Mr. Suresh Japu Lamani was authorized to drive heavy transport vehicle and the said licence was renewed from 17.02.2005 to 16.02.2008. Thus the D.L. had expired prior to the date of the accident i.e. 18.02.2008. This is the clear breach of Terms and Conditions of the Policy issued. Hence, the complaint was repudiated vide letter dated: 08.07.2008. This repudiation is legal and valid. It is the duty of the Applicant to file the Application for renewal of D.L. prior to 30 days of the expiry date, for it’s automatic renewal. If the driver had made any such Application then also it would have been held to of possession of a valid licence. Because as per Section 15 (1), the renewal of D.L. takes effect immediately from the date of its expiry in case of the Application for the same is made prior to 30 days of his expiry. In the present case in our hand, as per the endorsement seen on D.L., the renewal was from 26.06.2008 to 25.06.2011. Therefore, the renewal was moved after the expiry on 30 days from 16.02.2008. Hence, it was held that the driver was not having valid driving licence. So, the claim was closed as NIL Claim as per the letter dated: 25.10.2008 after the fresh endorsement from the complainant was received on 16.10.2008. Hence, the complainant is not entitled to the claim as is sought for. The complaint be dismissed with compensatory cost of Rs.5,000=00. The complainant and OP have filed affidavit to support their arguments. In the circumstances, the following points do arise for our consideration in deciding the case. They are: (i) Whether OP has rendered deficiency in service to the complainant thereby entitling him to the relief as is sought for? (ii) What Order? 7. Our Findings to these points are as hereunder: i) Affirmative, ii) As per the operative portion of the Order here below.



    8. We shall substantiate our findings on the following: R E A S O N S POINT NO.1: The learned counsels for both the parties have submitted the written arguments and also have filed supporting documents. The 9 documents filed in his case support by the complainant’s advocate are marked as Exhibit C1 to C9. The documents of the OP Counsel are 17 and are marked as Exhibit OP1 to OP17. Perused the documents.



    9. There is no dispute as to the Insurance Policy issued against the complainant vehicle bearing No.KA-28/A-1678 and it is validity as on the date of the accident. Exhibit C5 and OP17 are the xerox copy of the Insurance Policy which supports the say of the complainant that the policy was valid as on the date of accident. The fact of the accident was informed to the OP on 18.02.2008 about 10 PM as per the Motor Claim Form which is Exhibit OP16. There is no second word by the OP towards happening of the accident to the vehicle of the complainant bearing No.KA-28/A-1678. The main contention of the OP-Counsel in non-settlement of the claim is, not having valid driving licence as on the date of the accident and not reporting about the accident to the police. To this, the complainant has given an explanation that since there was no third party involvement in the accident. So the same was not informed to the police. Secondly, about the driving licence, it can be seen from the xerox copy of the D.L. produced by OP which is Exhibit C4 and OP11. Perused the same. There are no two opinions about who was the driver of the vehicle at the time of the accident. It is accepted by the both the parties that the name of the driver at the time of accident is Suresh Japu Lamani and Exhibit OP11 and Exhibit OP4 is the xerox copy of the D.L. of the said driver. We perused the said Exhibits and it can be seen that the said driving licence was issued to Mr. Suresh Lamani on 14.09.1993 and was valid upto 2030 for L.M.V. The licence to drive to heavy motor vehicle was issued among 18.09.1988 and this was valid upto 17.09.2001. This was renewed again on 19.01.2002 and was valid upto 18.01.2005. The third time, the said licence was again renewed on 17.02.2005 and was valid upto 16.02.2008. This document is accepted by both the parties. By perusing the said document, it is the established fact that the said driver is authorized to drive L.M.V. upto the year 2013 and licenced drive L.M.V. was first time was issued in the year 1993 and heavy motor vehicle in the year 1998. It means, the driver has both the driving skill for more than 11 years approximately. The art of the driving cannot be stolen or forgotten once a person becomes efficient driver. The driver in question in our view is an expert driver because his driving both the vehicles from the year 1993 and the accident had taken place on 17.02.2008. So, he has a vast expert of driving for more than 15 years. The contention taken by the OP-Counsel that the driver was not having effective valid driving licence cannot be accepted. Because the said licence is renewed again from 26.06.2008 and which is valid upto 25.06.2011 and the said fact is accepted by the OP in Para No.9 in his affidavit and objections at Page No.2 at Para No.9. This means, the OP also accepts that the driver is an efficient and expert driver which is decided by the R.T.O. Office. Exhibit OP17is the Insurance Policy and in this in the column heading “persons or classes of persons entitled to drive”, it is clearly noted as follows: “Any persons including Insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence”.


    10. In the present case in our hand, the licence of the driver at the time of the accident is renewed on 26.06.2008 though it had expired at the time of the accident i.e. on 17.02.2008. This shows that he was not disqualified from holding or obtaining such licence because it is been renewed by the licensing authority. As already discussed the above, the driver was an experts driver whose licence was renewed with the licensing authority. As such there is no ground to OP to repudiate the valid claim of the complainant. In our opinion, the excuse given by the OP in repudiating the claim of the complainant is lame and does not have sufficient ground. This is the deficiency in service rendered by the OP to the complainant.


    11. Exhibit C3 is R.C. Book of the vehicle in question. In this, on column No.14, the unladen weight of the vehicle is written as 6014 KG. Hence, the said vehicle comes under the category of L.M.V. in view of the Ruling in 2008 Kant M.A.C. 311 (S.C.) Supreme Court, National Insurance Co. Ltd. V/s Annappa Irapa Nasaria and others. In this, it is held that: “Motor Vehicles Act, 1988, Sections 2 (21) (47), 3, 149(2) (a) (ii)- Central Motor Vehicles Rules, 1989 Rule 14-Liability of Insurer-Driver having licence to drive “light motor vehicle”, driving a van, a goods carriage-Tribunal held driver authroised to drive goods carriage as unladen weight of vehicle less than 7500 Kgs.- Finding not accepted by High Court-Held-A driver having valid licence to drive light motor vehicle authroised to drive a light goods vehicle as well-Insurer cannot be absolved from its liability”. Hence, the contention of the OP that driver doesn’t have valid D.L. is not accepted. Because the vehicle’s unladen weight is 6014 K.G. and the vehicles having unladen weight of less than 7500 KGs are L.M.V. and the driver was having valid D.L. of L.M.V. at the time of accident.


    12. One contention of OP is not informing the accident to Police Station. But, it is decided in the reported case in I.L.R. 1996 KAR 161 in H.N. Nagarajan.J in Meenakshamma V/s Hanumanthappa, it is held in this case as hereunder: “(i) The claim is a summary civil proceeding wherein the claimant is required to rove the rash and negligent driving of the vehicle by independent evidence. Hence, non-registration of a police case regarding the accident does not give rise to any adverse inference that no such motor accident occurred” With these observations, it is clear that OP has rendered deficiency in service to the complainant by repudiating his valid claim.


    13. Now we go further to decide as to how much compensation complainant entitled for, since the deficiency in service is proved beyond doubt. Exhibit OP1, 2 and 3 are the Spot Survey and Final Survey and Re-inspection Report produced by the OP himself. The OP has conducted the first Spot Survey then the final survey. Again vehicle was re-inspected about the repair work undertaken by the complainant. Exhibit OP4 is a Bill Check Report. In this, the loss to the vehicle is assessed at Rs.35,303.75 minus Rs.50=00 for its salvage. The Survey Report is an important document in settling the claim. Hence we goby the same and come to the conclusion that the complainant is entitled to Rs.35,253=75 rounded upto Rs.35,260=00 towards damge to the vehicle. The complainant has claimed Rs.25,000=00 towards mental agony and Rs.10,000=00 towards cost of litigation. But, in our opinion Rs.5,000=00 for mental agony and Rs.1,000=00 towards cost of litigation will meet ends of justice. With this, we answer to Point No.1 in partly affirmative.


    14. POINT NO.2: In the light our affirmative finding on Point No.1 supra, we proceed to pass the following: O R D E R 1) The complaint of the complainant is allowed partly. 2) The OP is hereby ordered to pay Rs.35,260=00 (Rupees thirty five thousand two hundred and sixty) towards damaged vehicle within 2 months of passing of this Order, failing which complainant is entitled to interest at the rate of 12% per annum from the date of filing of this complaint i.e.20.01.2008, till its entire realization. 3) The OP is also ordered to pay Rs.5,000-00 (Rupees five thousand) towards mental agony & Rs.1,000-00 (Rupees one thousand) towards the cost of this litigation to the complainant. There is no order as to interest on mental agony and cost of litigation of the complaint. 4) The free copy of this order shall be sent to both the parties. (This order is dictated to the Stenographer, transcripted corrected and then pronounced in the open Forum on this 19th day of March -2009) (Sri.Viswantaha Reddy, B.K.) President. ( Smt.Minakshi.R.Kulkarni ) Lady Member ( Shri. S.G.Kulkarni ) Member.
  • adminadmin Administrator
    edited September 2009
    ORDER

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




    1)[FONT=&quot] [/FONT]This is a complaint praying to direct the OP to pay to the complainant Rs.28,800-00 with 8% interest, Rs.2,500-00 towards correspondence and mental tension, Rs.2,000-00 towards transportation charges and litigation expenses, and cost.

    2)[FONT=&quot] [/FONT]Brief facts of the complaint are that the complainant purchased cardiac Monitor Biosys BPM 730 Multi parameter equipment No. 173FG5095 on 17-10-2003 from the OP-2 for Rs.1,22,000-00. He was insuring the machine with the OP-1 since 2003 till 10-10-2007 and insured it from 11-10-2006 10-10 2007 by paying premium of Rs.10,105-00. The equipment was repaired by the OP-2 as per service report dated 8-8-05.The machine was out of order. It was not giving proper print. Hence he wrote to the OP-1 on 9-10-2007 to send a surveyor. It was sent for repairs on 29-10-2007 to Alpha Meditech Manglore. The repairs charge was Rs 28,800-00. The complainant submitted a claim with the OP-1 on 22-1-2008. The OP-1 on 12-5-2008 informed that the claim is not admissible since the damaged equipment is not covered under the policy and he repudiated the claim. The complainant in his letter dated 9-9-08 informed the OP-2 that the repaired and returned machine of model BPM700P Sl.No. 174FG5139 in 2005 does not match the original model BPM730 equipment No. 173FG5095 which was insured with the OP-1 and the OP-1 is refusing to settle the claim. The complainant requested the OP-2 to return the original model or to write to the OP-1 to settle the claim and informed the OP-1 that he has the only machine, which was exchanged by the OP-2 in 2005. He requested the OP-2 to settle the claim. The OP-2 also wrote to the OP-1 to settle the claim as the BPM 703 model and the BPM 700 model are having the same parameters. But the OP-1 on 6-10-08 repudiated the claim. The complainant was unaware of the replacement of the model by the OP-2 and was paying the premium amount sincerely and the OP-1 was receiving the amount. Hence the claimant is entitled for the claim amount. There is deficiency of service on the part of OPs and they are liable.

    3)[FONT=&quot] [/FONT]The OP-1 filed WS admitting the policy and further stating that the repairs were carried out by unauthorized party without permission and it is not liable for the costs of repairs. The claim of the complainant is not admissible since the damaged equipment is not covered under the relevant policy. The complainant if aggrieved may claim the amount from the OP-2. The repudiation by OP-1 is on valid grounds. There is no any malafide intention by the OP-1. He prays to dismiss the complaint.

    4)[FONT=&quot] [/FONT]The complainant and the OP have filed their affidavits. The complainant has got marked Ex.C-1 to C-7 and the OP Ex.R-1 to R-9.

    5)[FONT=&quot] [/FONT]The point that arises for our consideration is:
    [FONT=&quot]“Whether there is deficiency of service on the part of the OPs? If so with whom ?”[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    6)[FONT=&quot] [/FONT]It is the contention of the counsel for the complainant that the insured had the only machine in his hospital that was insured with the OP. He did not know that the OP-2 had supplied a changed machine. He was insuring the machine since 2005 till 2007. The parameters of both the machines are the same. The rejection of the claim is the deficiency of service by the OP-1.

    7)[FONT=&quot] [/FONT]The counsel for the OP vehemently urged that without permission of the OP the repairs of the machine were carried out by unauthorized party. So the OP-1 is not liable for the costs of repairs. The claim of the complainant is not admissible since the damaged equipment is not covered under the relevant policy. The complainant has no insurable interest. The complainant if aggrieved may claim the amount from the OP-2. The repudiation by OP-1 is on valid grounds. There is no any malafide intention by the OP-1. There is no deficiency of service on the part of the OP-1 and he is not liable. He prays to dismiss the complaint.

    8)[FONT=&quot] [/FONT]We have gone through the pleadings, affidavits and documents submitted by the parties. It is a fact that the complainant purchased the machine from the OP-2 in 2005. It went out of order in 2005. The complainant sent it to OP-2 for repairs. The OP-2 instead of sending the original machine sent another machine. That machine went out of order in 2007. The complainant got it repaired by Alpha Meditech by spending Rs.28,800-00. The fact that the OP-2 gave a different machine is not known to the complainant as well as the OP-1.The policy is being issued since 2005 till 2007.The OP-1 repudiated the claim on the ground that the defective machine is not covered under the policy. It seems that the OP-1 issued the policy without inspecting the machine. The complainant has no knowledge of change of the machine. There is no intention of the complainant to suppress any fact. The OP-1 had to inspect the machine at the time of issuing the policy. The OP issued policy for the machine, which was present in the hospital. The machine was not defective while issuing the policy. Later the defects occurred and it was got repaired by the Alpha Meditech Manglore. There is nothing in the policy conditions to get the machine repaired by a particular center. Under the circumstances, the denial of claim by the OP-1 is unjustified and the OP-1 is liable.

    9)[FONT=&quot] [/FONT]The complainant has claimed Rs.28,800-00 towards repairs of the machine. The surveyor in his report has assessed the amount of repairs to Rs.24900-00. Showing the present cost of the machine of about Rs.1,35,000-00 he has assessed the loss to Rs.22,502 for the reason of under valuation. The OP has not produced any document to show that the present market value of the machine is Rs.1,35,000-00. He has deducted Rs.2500-00 towards policy excess, which is also unfair. Under the circumstances if we allow the complaint directing the OP to pay Rs.24,900-00 with interest @ 9% p.a. from 12-5-2008 till realization with cost of Rs.1,000-00 it will be justifiable. The complaint against OP-2 shall be dismissed.
    We pass the following order.
    ORDER
    [FONT=&quot] The complaint is allowed. The OP-1 is directed to pay to the complainant Rs.24,900-00 (Rs.Twenty four thousand nine hundred only) with interest @ 9% p.a. from [/FONT][FONT=&quot]12-5-2008[/FONT][FONT=&quot] till realization with cost of Rs.1,000-00. (Rs.One thousand only) The complaint against the OP-2 is dismissed.[/FONT]
  • adminadmin Administrator
    edited September 2009
    Minor D. Vinulinga Raja,
    Represented by his father and Complainant
    Natural Guaradian,
    Mr.V.S.R. Dharmalingam,
    12, State Bank Colony,
    Shastri Nagar,
    Adyar, Chennai-20.

    - Vs -

    The New India Assurance Co. Ltd.,
    Divisional Office 712500 Opposite party
    Second Floor,
    ‘ B ‘ Block,
    No.21, Pattullas Road,
    Chennai-2.

    Date of Complaint 30.03.2001

    M/s. K.R. Krishnan & R. Mathivanan : Counsel for the complainant

    Mr. K. Suryanarayanan : Counsel for the opposite party
    O R D E R
    THIRU. P. ROSIAH, PRESIDENT

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

    1.[FONT=&quot] [/FONT]The case of the complainant is briefly as follows:
    The complainant had taken medi-claim policy with the Opposite party for the period from 01.02.2000 to 31.01.2001 covering all the family members including the complainant. He was hospitalized on 10.08.2000 for Slipped Upper Femoral Ephiphuysis in Apello Specialty Hospital at Chennai and underwent major surgery. He was discharged on 18.08.2000. The complainant’s father had incurred Rs.55,000/- as hospital expenses. The complainant made a claim with the Opposite party as per the policy. But. the opposite party repudiated the claim of the complainant on the ground of pre-existing disease. The reason given by ;the Opposite party for repudiating the claim is unacceptable. Hence, the complainant has filed this complaint claiming the expenses incurred in the hospital and compensation for mental agony.
    2. The opposite party filed version and contended inter alia that on the basis of the claim form submitted by the complainant on 24.08.2000, the investigating agency was appointed to enquire into the matter. The investigating agency has reported the Opposite party that ;the complainant was already suffering from problem Slipped Upper Femoral Ephiphysis even in the year 1999. The complainant made a false claim knowing to be false with intention to enrich himself. Therefore, the opposite party repudiated the claim as per exclusion clause 4.1 of the mediclaim policy. There is no deficiency in service on the part of the opposite party.
    3. Proof affidavits have been filed by both the complainant and the opposite party. Exhibits A1 to A4 were marked on the side of the complainant. Ex B1 was marked on the side of the opposite party.
    4. The points that arise for consideration are;-
    1) Whether there is any deficiency in service on the part of the
    opposite parties?
    2) To what relief the complainant is entitled to?
    5. Point No.1: The complainant being a minor represented by his father had taken mediclaim policy with the Opposite party for the period from 01.02.2000 to 31.01.2001. This fact has been admitted by the Opposite party. Ex A1 is the copy of the mediclaim policy issued by the Opposite party. The complainant was admitted to the Apollo Specialty Hospital on 10.08.2000 for Slipped Upper Femoral Ephiyphysis in Apollo Specialty Hospital, Chennai and had undergone surgery. He was discharged on 18.08.2000. The complainant’s father had incurred Rs.55,000/- as hospital charges. He made a claim with the Opposite party. Ex A2 is the copy of the claim form. He opposite party after examining the claim made by the complainant repudiated the same on the ground that the insured had sustained injury in August 1999. Since the policy was covered from 01.02.2000 which includes the claims arising out of pre-existing injuries. The opposite party rejected the claim based on the report of the investigation agency appointed to enquire into the claim made by the complainant. Ex B1 is the investigating report. The report would go to show that the insured had fall in the sports stadium during August 1999 and therefore the claim is not genuine. The investigation is an exparte investigation and the report Ex B1 is not supported by any documents. Ex A3 which is the summary did not indicate that the insured had fallen in 1999. Hence it is evident that Ex B1 is not supported by any documentary evidence. The opposite party cannot repudiate the claim of the complainant based on the report of the investigator without any valid documentary proof. Hence, we are unable to accept the contention of the opposite party that the complainant had problem of Slipped Upper Femoral Ephipysis in the year 1999. Denying the medi-claim insurance amount amounts to deficiency in service. The point is answered accordingly.
    6. Point No.2: In the result, the complaint is allowed. The opposite party is directed to pay the complainant a sum of Rs.55,000/- being the amount incurred by the complainant for hospitalization, if found correct after verifying the bills within two months from the date of receipt of copy of this order, failing which the amount shall carry interest at the 9% per annum till the date of payment. The opposite party is also further directed to pay a sum of Rs.20,000/- as compensation for mental agony and Rs.5000/-as cost of the complaint to the complainant within two months from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment.
  • adminadmin Administrator
    edited September 2009
    R.Ramanathan,
    S/o.K.Ramalingam,
    56, Perumal Naidu Nagar, Vadepatti, Bo
    Coimbatore 641 007. --- Complainant
    Vs.
    Anto Fernanbo,
    Senior Divisional Manager,
    New India Assurance Co.Ltd.,
    435, D.B.Road, R.S.Puram
    Coimbatore – 641002. --- Opposite Party

    This case coming on for final hearing before us today in the presence of Sri.E.Rajendran,and Chris B.Ajay, Advocates for complainant and Sri.M.N.Manohar, 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 claim amount of Rs.44,170, compensation for causing mental agony and deficiency in service.

    The case of the complaint are as follows:
    1.[FONT=&quot] [/FONT]The Complainant is a policy holder of Health Plus Medical Insurance Policy with New India Assurance Company. The policy No.is 720100/34/07/18/00001180.The complainant was admitted to the Coimbatore Kidney Centre for difficulty in breathing and cough from 10.1.08 to 16.1.08 and submitted a claim bill for Rs.44,170/-.The complainant approached several times in person and over phone but the opposite party refused to admit the claim of the complainant stating that the disease is a pre existing one. Hence this complaint.

    The case of the Opposite party are as follows:
    2. The complainant had taken a policy covering the risk period from 21.7.07 to 20.7.08. The policy excludes the diseases like Appendicular, Abscess, Cardiac ailments etc. While so the complainant, preferred a claim for his alleged treatment at Coimbatore Kidney Centre from 10.1.08 till 16.1.08 for the ailments of Diabetes Mellitus, IHD, CABG, Diabetic Nephropathy Pneumonia, Right upper lode and submitted a bill for Rs.44,170.34. When the opposite party sought for an investigation before finalization, it was revealed that the complainant got admitted into the hospital for difficulty in breathing and cough, but took treatment for the ailments which are already excluded under the policy. Therefore this opposite party rightly repudiated the claim.
    3. The Hospital authorities had stated that the complainant, was first seen at the hospital on 20.1.03, had previous consultation at CABG Railway hospital, Chennai on 20.1.03, had breathlessness on 6.7.03, history of hypertension for 14 years, history of diabetes mellitus for 15 years, and hydrocele and hernia done. Since, the ailments now under gone were already pre-existing at the time of taking the policy this opposite party repudiated the claim as pre-existing disease. The complainant is not entitled for compensation towards mental agony and for deficiency in service.
    4. The complainant and opposite party have filed Proof Affidavits along with Ex.A1 to A8 Ex.A1 to A8 was marked and Ex.B1 to B4 was marked .
    The points for consideration are:

    Whether the complainant had suffered damages as alleged if so
    what relief the complainant is entitled to?
    Issue No.1:-
    5. Since there was no representation on behalf of the complainant, after giving sufficient opportunity the arguments of the opposite party heard. Both side documents perused. Orders passed on merit.
    6. The complainant has filed his complaint seeking compensation for the alleged deficiency in service. This was denied by the opposite party.
    7. The complainant has taken a policy covering the risk period from 21.7.07 to 20.7.08. The policy excludes certain disease. Ex.A2 is the copy of the policy. Ex.A3 is the bills. Ex.B1 to B4 reveals that the complainant got admitted for diffiulty in breathing and cough and took treatment for the ailment already excluded under the policy. In fact the complainant has not marked the discharged summary and purposely omitted to mark it before this Forum. Ex.B1 is a reply given by the Coimbatore Kidney Centre on 19.5.08. In that letter Hospital authorities had stated that the complainant, was first seen at the hospital on 20.1.03, had previous consultation at CABG Railway hospital, Chennai on 20.1.03, had breathlessness on 6.7.03, history of hypertension for 14 years, history of diabetes mellitus for 15 years. Ex.B2 will show that the complainant took treatment for the past so many years and the proposal form viz.Ex.B4 he has stated that he is fit and has got good health suppressing all the ailments. Hence the complainant has suppressed the material facts and obtained the policy the opposite party has rightly repudiated the claim which cannot be termed as deficiency in service. Hence the complainant is not entitled to get any amount based on insurance policy and not entitled to get any compensation. Hence this complaint is dismissed. No costs.

    8. In the result, this complaint is dismissed. No costs.
  • adminadmin Administrator
    edited September 2009
    Consumer Case No.: 42 / 2006.
    Date of filing : 14.09.2006.
    Date of final order : 22.04.2009.
    Present:
    A) Sri Saurish Chakraborty President.

    B) Smt.Swapna Kar Member.

    C) Sri Swaraj Kumar Biswas Member.


    Chandrani Chakraborty,
    wife of Late Dulal Chakraborty,
    Ashokepally, Raiganj, Uttar Dinajpur. Complainant.

    versus

    1. The New India Assurance Company Limited,
    represented by the Divisional Manager,
    Calcutta Division Unit – 511700,
    4, Mangoe Lane (2nd Floor), Kolkata – 700001.

    2. Golden Trust Financial Services,
    16, R. N. Mukherjee Road, Kolkata – 700001.

    3. The Manager,
    Golden Trust Financial Services,
    Malda Branch Office,
    SBI Building, Malda.

    4. The Manager,
    Golden Trust Financial Services,
    Raiganj Branch, Ukilpara, Uttar Dinajpur. Opposite Parties.

    Judgment:
    Date: 21.04.2009.

    This case arises out of a petition of complaint filed Under Section 12 of the Consumer Protection Act, 1986 by the petitioner Smt. Chandrani Chakraborty on 14.09.2006 against the opposite parties, The New India Assurance Company Limited and others for an order to pay the sum assured of Rs.5,00,000.00 along with 10% interest per annum from the date of death of deceased and an award of Rs.1,00,000.00 as compensation and as litigation cost of Rs.5,000.00 and any other relief or relieves as the Forum deems fit and proper.

    The complaint story in brief is that deceased Dulal Chakraborty obtained an insurance policy bearing No. 01106441 / 000100059162; amounting to Rs.5,00,000.00; covering the period from 15.12.2000 to 14.12.2015 under Group of Janata Personal Accident Insurance Policy. The complainant is one of the legal heirs (widow) of the said deceased policy holder.

    Dulal Chakraborty was ran-over by a train at Farakka on 09.07.2005. After his death, the complainant being the widow having no source of income to maintain her family applied before the opposite parties to realize her claim by submitting all the necessary documents including the Claim Application. As she did not get any response from the opposite parties she sent several reminders and at last send one notice to the Insurer, The New India Assurance Company Limited Raiganj Consumers Forum (a N.G.O.) on 22.04.2006 but in vain. For the reason, as stated above the complainant has come before this Forum for getting the relief or relieves as per her prayer particularly against the opposite party No.1.

    Opposite party No. 1 has contested the present complaint by filing one written version. The opposite party No. 1 particularly attacked the present complaint on certain legal grounds. But, its case has been narrated particularly in paragraph 9 of the written version. It is contended specifically that the opposite party No. 1 has not issued any Insurance Policy in the name of Late Dulal Chakraborty, but the Golden Trust Financial Services has issued the said policy under the Janata Personal Accident Policy scheme. It has further contended that there was a MOU between the opposite party No. 1 and the opposite party Nos. 3 and 4 regarding the terms and conditions of the policy. It has also referred a decision of Hon’ble High Court, Kolkata passed on 15.03.2006 in G. A. No. 312 of 2003 / in W.P. No. 2343 of 2002 (original side). It has been decided directing the opposite party No. 1 to dispose of the matter on merits as expeditiously as possible. According to the opposite party the accident faced by the deceased Dulal was a self inflicted one. So, it is concluded by the opposite party No. 1 finally that the complainant is not entitled to get any relief in this Forum.

    On the other hand, opposite party No. 2, 3 and 4 contested the case by filing a written version. It has taken some legal objections and in fact admitted the insurance policy in favour of Dulal Chakraborty. It has further stated that they submitted claim papers to opposite party No. 1 and as per the provisions of Memorandum of understanding the settlement of the claim exclusively vested upon opposite party No. 1, that is the New India Assurance Company Limited and opposite party Nos. 2, 3 and 4 have no liability for the same. Hence the case merits dismissal as against these opposite parties.

    To prove the case the complainant has filed an affidavit on evidence and also some documents. On the other hand no evidence and documents has been adduced by the opposite parties.
    Decisions with reasons:

    The affidavit-in-chief sworn by the complainant has gone in evidence, because no cross examination was conducted by the opposite party No. 1 over the contents of the affidavit. On perusal of the affidavit we do find the contents therein are in conformity with the facts stated in the petition of complaint. Further in support of her case complainant has filed a number of documents, which includes the Insurance Certificate issued by the opposite party No. 1 in favour of Late Dulal Chakraborty, post mortem report of the deceased, medical certificate of the deceased, first information of the accident and final report of the police. Beside these the complainant has also filed other documents like a letter, addressed to the President, Raiganj Consumers Forum on 9th March 2006, letter issued to the Divisional Manager of the opposite party No. 1 by Raiganj Consumers Forum on 02.06.2006, letter dated 30.05.2006 addressed to the Golden Trust Financial Services by the Divisional Manager of the Calcutta Divisional Office of the opposite party No. 1 and finally letter dated 19th September 2005 addressed to the complainant by the Regional Office of the opposite party No. 1. Now, taking the materials into consideration, we do find that the Insurance Certificate issued by the opposite party No. 1 in favour of Dulal Chakraborty since deceased. Here we also do find that the complainant has been the nominee of the said Insurance Policy, so, it is very difficult to accept the version of the opposite party No. 1 that no Insurance Certificate has been issued by it in favour of Dulal Chakraborty since deceased. The next contention of the opposite party No. 1 that there was a MOU in between the opposite party No. 1 and opposite party No. 2 Golden Trust Financial Services and as per the said MOU all the liabilities arising out of the Insurance Policy in question was to be shouldered by the opposite party No. 2. But it is very regrettable to say that the said MOU has not been produced by the opposite party No. 1 and all the opposite parties (2, 3 and 4) rather denied any such terms and conditions incorporated in the said MOU.

    Next we find that it has been vehemently denied by the opposite party No. 1 that the deceased has faced the accident in the manner as stated by the complainant. According to the opposite party the accident was a self inflicted one. But Ld. Lawyer appearing for the opposite party No. 1 unfortunately has failed to explain, how the accident can be a self inflicted one. If we take this view of Ld. Lawyer we may question whether a self inflicted injury shall be an accidental or suicidal.

    Be it noted here further that the Post Mortem Report, First Information Report and Investigation Report of the Police taking together has undoubtedly established that the victim Dulal Chakraborty has died due to a train accident.

    Letter dated 9th March 2006 speaks of the requirement of the opposite party No. 1 for certain documents like Post Mortem Report, Final Police Report, Death Certificate, Documentary Proof from GTFS regarding the status of the claimant and lastly Attested Copy of the Certificate for the settlement of the claim of the petitioner. This letter has a reference to a writ application which was moved by GTFS before the Hon’ble High Court, Kolkata against the cancellation of the MOU between GTFS and the opposite party Insurer. But, this cancellation matter was stayed by the Hon’ble High Court. The matter was further taken up by the opposite party Insurer for reconsideration of the claim and that is why it has asked for the above stated documents from the President, Raiganj Consumers Forum.

    Second letter of the opposite party Insurer dated 30.05.2006 addressed to M/S Golden Trust Financial Services has a reflection of the fact that the documents received by it from the Raiganj Consumers Forum ware sent to the Golden Trust Financial Services asking them to take necessary action as because the nominee of the deceased insured Dulal Chakraborty does not lodge any claim.

    Both the letters referred above are the clear picture of the fact that the opposite party Insurer has been considering the claim matter put forward by the complainant.

    Those letters referred above are the subsequent correspondence to the letter dated 9th September 2005 addressed to the complainant by the opposite party Insurer. Here we never find that the matter of claim has been dropped instantaneously, rather taken up for consideration. All these letters have established one fact that subsequent to the letter dated 19th March 2005 the opposite party Insurer has made some enquiry but, finally, as we find from the record, no information has been given to the complainant regarding the consideration of the payment of claim.

    So, taking all these material into consideration we are of the view that the opposite party Insurer has not been acted in an open mind while dealing with the claim of the complainant. There is no any doubt to say that the complainant is the nominee of the deceased Dulal as per the Policy Deed. Even thereafter the claim has not been satisfied the reasons for non-payment of the claim given by the opposite party Insurer are not tenable at all.

    So, in our view the complainant is entitled to get a relief as she prayed before this Forum.

    Fees paid are correct.

    Hence, ordered

    That the Consumer Case No. 42/2006 is allowed on contest against the opposite party No.1 and dismissed on contest against the rest.

    The complainant shall get an award of Rs.5,00,000.00 – sum assured in the policy in question. She also gets an order of litigation cost of Rs.1,000.00 against the opposite party Insurer.

    The opposite party No. 1 shall pay the awarded sum of Rs.5,00,000.00 (rupees five lakhs) and the litigation cost of Rs.1,000.00 (rupees one thousand)within one month from the date of this order failing which an interest @ 6% will be levied upon the principal.

    This case is finally disposed of.
  • adminadmin Administrator
    edited September 2009
    Sh.Roshan Lal son of Sh. Mohan Lal aged 38 years resident of village Malhanu, Post Office Chunahan, Tehsil Sadar, District Mandi, H.P.

    …Complainant


    V/S

    The New India Assurance Insurance Company Ltd Branch Office Hospital Road. Mandi,, District Mandi, H.P.

    …..Opposite party

    For the complainant Sh. Rahul Awsthi ,Advocate
    vice Sh. R.P.Sharma Advocate
    For the opposite party Sh. Sunder Goel, 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 purchased a Swaraj Mazda goods carrier vehicle to earn his livelihood and registration No. HP-31B-0352 was allotted to it by the Registering and Licensing Authority Sundernagar. Said vehicle was insured with the opposite party with effect from 20-6-2007 to 19-6-2008. During the currency of the insurance policy, the vehicle met with an accident on 21-01-2008 per chance at Village Sanarli near Karsog as a result the vehicle got damaged badly. The opposite party was informed immediately. The complainant had submitted the claim with all relevant documents to the opposite party but the same was refused . The complainant had spent more than Rs.35,000/- for repairing the vehicle. The vehicle was off the road for about one month . The complainant had suffered due to non settlement of the claim which amounts to deficiency in service.With these averments , the complainant had sought a direction to the opposite party to pay Rs.35,000/- spent on repair and also to pay , Rs.55,000/- on account of deficiency in service.


    2. The opposite party resisted the complaint by filing reply in which preliminary objections have been raised that the present complaint is no complaint , that the complaint is not maintainable in view of violation of driving clause envisaged under the terms and conditions of the insurance policy as the person driving the vehicle at the time of accident was not authorized to drive Medium Transport vehicle and the vehicle under reference is Medium goods vehicle and that the claim stood repudiated vide letter dated 17-6-2008 and was duly communicated to the complainant . On merits , it has been admitted that the vehicle of the complainant had sustained damages due to accident but the indemnity is refused in view of violation of the terms and conditions of the insurance policy because the driver was not found having authorized to drive the vehicle under reference. It has further been averred that the opposite party is only liable to pay the recommended damages determined by the surveyor and loss assessor subject to the terms and conditions of the insurance policy. The charge of deficiency in service levelled against it had been refuted. The opposite party had prayed for dismissal of the complaint .


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


    4. We have heard the ld. counsel for the parties and have carefully gone through the entire record. From the perusal of the record it is ample clear that the only ground on which the claim of the complainant has been repudiated by the opposite party is that the driver of the vehicle was not having valid and effective driving license to drive the vehicle at the time of the accident .


    5 Now the question which arises for determination before this Forum is as to whether the driver of the vehicle was holding a valid and effective driving license at the time of the accident or not. The perusal of the registration certificate Annexure O-1 shows that the vehicle is a medium goods vehicle having unladen weight of 2800 kilogram and laden weight of 8000 kilogram . It is not in dispute that driver of the vehicle at the time of the accident was Sh.Roshan Lal Kaushal. As per the driving license annexed by the opposite party itself as Annexure O-5 he was authorized to drive Light Motor vehicle
    ( Trans.) According to the opposite party since the vehicle was a Medium goods vehicle and the driver had been possessing a driving license authorizing him to drive light motor vehicle
    ( transport) therefore , the claim of the complainant had rightly been repudiated. At this juncture, we deem it proper to discuss the legal position attracted in a situation of this nature where the insurance claim has been repudiated by the insurer on the ground of having not a valid and effective driving license . In a case titled Anil Kumar Vs Oriental Insurance company 2008(1) CPC-126, decided by our own Hon’ble State Commission the complainant was owner of Swaraj Mazda vehicle and as per the registration certificate it was a medium goods vehicle . The driver of the vehicle was possessing driving license to drive light motor vehicle ( transport ). The Hon’ble State Commission has held that driver was duly licensed to drive the vehicle in question as there is no such category of the license to be issued to a driver authorizing him to drive a medium goods vehicle as per section 10 (2) of the Motor Vehicle Act,1988 ( For short : M.V. Act) . The relevant extract of the aforesaid judgment is reproduced as below:-

    6………………………………………………………….From the above definition coupled with Rule 3 of the Central Motor Vehicle Rules, framed under the Motor Vehicles Act, 1988, we find that there is no category of licence to be issued to a driver authorizing him to drive a medium goods vehicle as is the situation in the present case. In our opinion, and for determination of the present case, clauses (d) and (e) of sub section (2) of Section 10 extracted herein above, are relevant for adjudication of this case. Driver was authorized to drive L.M.V-NT as well as L.M.V-TRANS, therefore, he was authorized to drive a transport vehicle as per requirement of Section 10(2) of the Act supra. And as per Rule 3 of the Central Motor Vehicle Rules in the absence of any provision in that, behalf under Himachal Pradesh Motor Vehicle Rules, there is no category under the Act or the Rules for the grant of a driving, licence to the driver to drive a medium goods vehicle. Admittedly for driving a transport vehicle, endorsement is there as per Photostat copy of page 49 of the complaint file of the licence as Annexure R.5 relied upon and filed by the respondent itself.

    9.Licensing Authority has itself registered the vehicle to be a L.M.V. For driving such a transport vehicle, driver was duly authorized as is evident from Annexure R.5. Even the competent authority in law i.e. Under Motor Vehicles Act, 1988, has treated and registered the vehicle as L.M.V. And the driver being authorized to drive the same, the District Forum below did not deal with this aspect of the case at all. It seems to have been impressed by the fact that the vehicle in question was a medium goods vehicle and the driver was licensed to drive L.M.V.-TRANS. Thus, there is on the fault of the appellant keeping, in view the registration of the vehicle as L.M.V. by the competent authority under law.”



    6 In the present case also , the complainant is owner of Swaraj Mazda vehicle and as per the photostat copy of the registration certificate it is a medium goods vehicle having unladen weight of 2800 kilogram. As per Annexure O-5, the driver was holding license to drive light motor vehicle (transport). Therefore as per requirement of section 10(2) of the M.V. Act , he was authorized to drive a transport vehicle . Since there is no category under the M.V.Act or the Rules for the grant of driving license to the driver to drive a medium goods vehicle , it cannot be said that the driver of the vehicle in question was not holding a valid and effective driving license because admittedly he was authorized to adrive Transport vehicle. Therefore , in view of the above decision of the Hon’ble State Commission, we have no hesitation to conclude that driver Sh. Roshan Lal Kaushal was holding valid and effective driving license to drive the vehicle involved in the accident and the claim of the complainant has been illegally repudiated by the opposite party which is deficiency in service on its part.


    7 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle. The complainant in his complaint had claimed Rs.35,000/- but failed to adduce in evidence any repair bills or cash memo in support thereof .On the other hand the opposite party has placed on record Motor survey final report of Er. Vishal Kumar Gautam dated 24-2-2008 which shows that the estimated value of repair was Rs.24,227/- and he had recommended net amount payable in the sum of Rs.7514/-.The complainant had not specifically denied the assessment of the loss by Surveyor and Loss Assessor. Since the complainant had failed to even place on record any material or the bills of repair ,we are left with no other alternative except to accept the report of Surveyor and Loss Assessor , aforesaid .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 the loss suffered by the complainant with respect to the damage caused to the vehicle at Rs.7514/-.



    8 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.5,000/- as compensation.

    9 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.7514./- alongwith interest at the rate of 9% p.a. from the date of filing of the complaint till realization .The opposite party is further directed to pay Rs.5,000/- as compensation on account of harassment and Rs.2500/- as costs of litigation.
  • adminadmin Administrator
    edited September 2009
    Vas Dev Singh aged 67 years son of Sh Harnam Singh resident of village Jain P.O.Bassi Kalan Tehsil and District Hoshiarpur.




    complainant


    vs.


    The New India Assurance Company Limited, Nawanshehar through its Manager.


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


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


    Present; Sh B.K.Gupta, counsel for the complainant.
    Sh Brij Thakur, counsel for the OP.
    PER P.D.GOEL,PRESIDENT
    1. The complainant namely Vas Dev Singh has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the truck bearing no.PB07-H-4651 was insured with the OP from 28.12.2006 to 27.12.2007.
    2. It is the allegation of the complainant that on the intervening night of 22/23.6.2007, the said truck was stolen, as such, FIR no.134 dated 22/23.6.2007 u/s 379 IPC was got recorded in P.S, Model Town, Hoshiarpur. That the claim was lodged with the OP and all the requisite documents required for the settlement of the claim were supplied but the OP has failed to settle the claim. That legal notice dated 17.7.2008 was served upon the OP but of no avail, hence this complaint.
    3. OP filed the reply Preliminary objections vis a vis maintainability, jurisdiction, locus standi 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 had sold the truck in question to Sh Karnail Singh son of Beli Ram r/o New Fatehgarh, Hoshiarpur prior to the alleged theft, thus, he is not the consumer of the OP. It is further replied that the truck in question was financed by Punjab Kashmir Finance Ltd. Jalandhar, as such, the financer is necessary party to the lis. However, it is admitted that the truck in question was insured with the OP on the alleged date of theft. It is further replied that FIR with regard to alleged theft was lodged by Sh Karnail Singh and the claim was also lodged by Sh Karnail Singh being the owner of the truck. The complainant failed to supply the non traceable report , as such, the claim has not been settled. The truck was also insured by Sh Karnail Singh and not by the complainant. That as per the certificate issued by the financier, dated 9.6.2008, Karnail Singh is the actual owner of the truck in question.
    4. In order to prove the case, the complainant tendered in evidence affidavit of complainant Ex.C-X, FIR No.134 dated 22.6.2007 of Model Town, Hoshiarpur Ex.C-1, carbon copy of legal notice 17.10.2008 Ex. C-2, postal receipt Ex. C-3, AD Ex. C-4, reply to notice Ex.C-5, letter dated 23.9.2008 Ex.C-6, reply to notice dated 23.10.2008 Ex. C-7, translated copy of FIR Ex. C-8, letter dated 10.12.2008 Ex.C-9, untraced report Ex. C-10, letter dated 24.12.2008 Ex. C-11 and AD Ex. C-12 and closed the evidence.
    5. In rebuttal, the opposite party tendered in evidence terms and conditions of the insurance policy Ex. R-1, copy of FIR no.134 of P.S Model Town, Hoshiarpur Ex. R-2, copy of RC Ex. R-3, copy of investigation report dated 25.6.2008 Ex. R-4, copy of letter dated 9.6.2008 Ex.R-5, copy of statement of Karnail Singh Ex. R-6, newspaper clipping Ex. R-7 and affidavit of Parvinder Singh Ex.OP-8 and closed the evidence.
    6. The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
    7. The grouse of the complainant is that on the intervening night of 22/23.6.2007, the truck bearing no. PB07-H-4651 was stolen,and thereafter, the claim was lodged with the OP. The OP has raised the defence that the complainant had sold the truck in question to Sh Karnail Singh son of Beli Ram r/o New Fatehgarh, Hoshiarpur prior to the alleged theft, thus, he is not the consumer of the OP.
    8. Admittedly, the trunk bearing no.PB07-H-4651 was insured with the OP on the date of theft i.e. on the intervening night of 22/23.6.2007. That the FIR with regard to alleged theft was lodged by Sh Karnail Singh.
    9. Now the point for consideration is whether Sh Karnail Singh son of Beli Ram r/o New Fatehgarh, Hoshiarpur was the actual owner of the truck bearing No. PB07-H-4651 ? The answer to this is in the negative.
    10. Ex. R-3 is the copy of RC of truck No. PB07-H-4651, which is in the name of Vasdev Singh- complainant. The insurance policy is Ex. R-1,which is in the name of the insured- Vasdev Singh. Ld. Counsel for the OP- Sh Brij Thakur, during the course of arguments has not disputed that the RC and the Insurance Policy are in the name of the complainant. The law is settled that the person in whose name a vehicle stands registered, is its owner for the purpose of insurance of the said vehicle. Section 2(30) of the Motor Vehicle Act, 1898 defines “ registered owner” A person in whose name the vehicle is registered is its owner for the purpose of insurance. Therefore,the mere denial of the ownership of the vehicle is not sufficient to repudiate the claim by the Insurance Company. Reliance placed on 1993 CPC, 478, Shri Ram Murti of Hissar vs. The Oriental Insurance Co. Hissar and 1994(1) CPC,372,M/s Enfield India Ltd. vs. Mr. N.P.Singh.The untraceable report is Ex. C-10 on the record.
    11. Ld. Counsel for the OP vehemently argued that prior to the alleged theft, the complainant had sold the truck in question to Sh Karnail Singh son of Beli Ram r/o New Fatehgarh, Hoshiarpur . Reference was invited to the copy of FIR dated 23.6.2007 Ex. R-2. It was submitted that FIR was recorded on the statement of Karnail Singh son of Beli Ram , wherein he has stated that on 22.6.2007, he parked his truck at 9.30 p.m and at about 6.00 a.m.. the said truck was found missing. It was submitted that the FIR contains the first version with regard to alleged incident of theft. The careful scrutiny of FIR makes it clear that the truck was parked at 9.30 p.m. by Karnail Singh on 22.6.2007, and thereafter, at 6.00 a.m. it was found missing. Reference was also made to the report of investigator, Ex. R-4, wherein under head “result” vide column C & L, the investigator had stated that the truck was parked and locked by Karnail Singh. The Financier had also certified that Karnail Singh son of Beli Ram is the owner of the truck no. PB-07-H-4651. Ld. Counsel for the OP further made a reference to the certificate issued by Punjab Kashmir Finance Ltd. dated 9.6.2008,Ex. R-5, wherein it has been certified that as per record, the actual owner of truck no. PB-07-H-4651 is Karnail Singh, whereas the vehicle is registered in the name of Vasdev Singh. Ex. R-6 is a statement of Karnail Singh, wherein he has stated that he had purchased truck bearing no. PB-07-H-4651 from Vasdev Singh son of Harnam Singh. That on 22.6.2007, the said truck was parked in the plot . That on 23.6.2007 at 6.00 a.m, the said vehicle was found missing. The matter was reported to the police, and thereafter, FIR no. 134 dated 23.6.2007 was recorded.
    12. Now, it is established on record that the investigator in his report Ex.R-4 had reported that the registered owner of the truck is Vasdev Singh son of Beli Ram. Likewise the Punjab Kashmir Finance Ltd. had also issued a certificate dated 9.6.2008 Ex. R-5,wherein it has been certified that Vasdev Singh son of Beli ram is the registered owner. The RC Ex. R-3 and the insurance policy Ex.R-1 also prove on record that Vasdev Singh- complainant is the registered owner of the truck bearing no.PB07-H-4651.
    13. Admittedly, the OP has neither produced Sh Karnail Singh as witness in the court nor has produced his affidavit on the record to prove that prior to the alleged theft, the truck bearing no.PB07-H-4651 was sold to him by the complainant, therefore, the statement of Karnail Singh, Ex. R-6 is not sufficient to prove that he was the owner of the truck in question, especially when the complainant has been recorded as registered owner of the truck in the RC and insurance policy Ex.R-3 and R-1 respectively. The fact that the FIR had been lodged by Karnail Singh with regard to the alleged theft is not sufficient to prove that said Karnail Singh is the owner of truck in question. More so, a person in whose name a vehicle stands registered, is its owner and Section 2(30) of the Motor Vehicle Act, 1898 also speaks that a person in whose name the vehicle is registered is its owner for the purpose of insurance, consequently, it is held that the complainant was the registered owner of the truck in question on the date of theft i.e. 22/23.6.2007.
    14. It has already been held that the OP has failed to prove that Karnail Singh son of Beli Ram was the owner of the truck bearing no.PB07-H-4651, therefore, the ratio of the law laid down in recase M/s PHUL BUS SERVICE (Regd.)RAMPURA VS FINANCIAL COMMISSIONR & others. 1968, PLR, 323, is not attracted to the facts and circumstances of the present case.
    15. The perusal of the insurance policy Ex. R-1 reveals that the vehicle was insured for Rs.3,50,000/- for the period from 28.12.2006 to 27.12.2007 and the theft took place on 22/23.6.2007 i.e. during the subsistence of the insurance policy. Since the insurance company itself has accepted the value of the vehicle at Rs.3,50,000/- on 28.12.2006, therefore, keeping in view the provisions contained in sections 146 and 196 of MVA,1898. It is held that since the insurance company is in dominant position,therefore, the OP cannot be allowed to act in an unreasonable manner. Thus, in the circumstances, the insurance company is bound by the value put on the vehicle while issuing the policy on 28.12.2006 , consequently, it is held that the insurance company is liable to pay Rs. 3,50,000/- to the complainant-insured. Reliance placed on 2008 SCCR 782, Dharmendra Goel vs. Oriental Insurance Co. Ltd.( Supreme Court).No other point was argued or urged .
    16. As a result of the above discussion, it is held that the OP has illegally repudiated the claim of the complainant,which amounts to deficiency in service,with the result, the complaint is accepted and the OP is directed to pay the claim amount of Rs.3,50,000/- to the complainant with interest @ 9% per annum from the date of complaint i.e 8.1.2009 till realization alongwith litigation expenses of Rs.1000/- within one month from the receipt of copy of the order.
  • adminadmin Administrator
    edited September 2009
    1. Amrik Singh aged about 46 years s/o Sh.Tarlok Singh r/o VPO Bhatnoora Lobana Tehsil and District Jalandhar (Punjab).
    2. Kulbir Singh s/o Sampuran Singh r/o Gobind Nagar, Behind Govt. College, Urmar Tanda, Tehsil Dasuya District Hoshiarpur(Punjab).

    Complainants


    vs.


    1. The New India Assurance Company Ltd. Bharat Nagar Chowk, Ludhiana 141001 through its Sr.Branch Manager.
    2. The New India Assurance Company Ltd, 4th floor, Surya Tower,108, The Mall, Ludhiana-141001 through its Regional Manager.
    3. The New India Assurance Company Ltd, Hoshiarpur through its Sr. Branch Manager.
    4. Tata Finance Ltd.,3rd floor, SCO-123, Feroz Gandhi Market, Ludhiana through its Manager.

    opposite parties

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


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


    Present; Sh D.S.Sandhu, counsel for the complainant.
    Sh V.K.Gupta, counsel for OP No.1 to 3.
    Sh Lokesh Puri, counsel for OP No.4.



    PER P.D.GOEL,PRESIDENT


    1. The complainants have 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 No.1 purchased mini bus bearing registration no.PB-08-AN-5833 alongwith documents from complainant No.2- Kulbir Singh son of Sampuran Singh r/o Gobind Nagar,Urmur Tanda Tehsil Dasuya District Hoshiarpur on 24.1.2005. The said vehicle was hypothecated with OP No.4- Tata Finance Ltd.. That said Kulbir Singh and Amrik Singh jointly applied for the transfer of ownership of the said vehicle alongwith right of regular stage carriage permit no.442/Mini/Jal in favour of complainant No.1 to the Secretary, Regional Transport Authority, Jalandhar.
    2. That complainant No.1 got insured the said vehicle from OP No.1 for the period from 6.1.2004 to 5.1.2005, 5.1.2005 to 4.1.2006 and 12.5.2006 to 5.1.2007. It is the case of the complainants that the said bus met with an accident on 21.10.2005 at about 4.15 p.m. in the area of village Nandachaur P.S.Bullowal Tehsil and District Hoshiarpur. The mini bus got damaged in the said accident. That FIR No.174 dated 21.10.2005 u/s 279, 337, 304-A and 338 IPC was registered at P.S.Hariana District Hoshiarpur on the statement of one Balvir Singh s/o Jagat Singh r/o VPO Bhatnoora P.S.Bhogpur District Jalandhar, who was travelling in the said bus at the time of accident.
    3. It is the allegation of the complainant No.1 that he spent Rs.1,25,000/- on the repair of the said bus. The complainant No.1 made a request to OP No.1 to settle the claim but of no avail . It is further the allegation of the complainant No.1 that he is entitled for the damages for the period the vehicle remained off the road due to non settlement of the claim by OP No.1, hence this complaint.
    4. OPs Nos.1,2 & 3 filed the joint reply. Preliminary objections vis-a-vis maintainability, jurisdiction, cause of action, non joinder of necessary parties, limitation and that the alleged driver Gurjit Singh was not in possession of a valid DL were raised. On merits, the claim put forth by the complainants has been denied. It is replied that Amrik Singh was the registered owner of the said vehicle, per registration certificate. On 1,3.2004. Amrik Singh sold the said mini bus to Kulbir Singh and the same was transferred in his favour on 18.1.2005. The route permit on 20.1.2005 was in the name of Kulbir Singh. Since Kulbir Singh purchased the said vehicle from Amrik Singh, therefore, he became its owner on 18.1.2005, as such, the claim of Amrik Singh that Kulbir Singh sold the said vehicle to him is false and not tenable. That after the alleged accident, Kulbir Singh and Amrik Singh prepared the false documents with intention to get false claim from the replying OPs. However, it is admitted that the said bus was insured with the replying OPs from 5.1.2005 to 4.1.2006 in the name of Amrik Singh but the said vehicle was sold by him to Kulbir Singh and RC was also transferred in the name of Kulbir Singh on 18.1.2005 but no information to this effect was given to the replying OPs , as such, the complaint is not maintainable.
    5. It is further replied that on receipt of information, M.L.Mehta & Co. was appointed to assess the loss . The loss to the said vehicle was assessed at Rs.81,148.56p but the claim was repudiated as Amrik Singh- complainant was not the registered owner of the said bus at the time of alleged accident.
    6. OP No.4 filed a separate reply. The various preliminary objections were raised. However, it is admitted that the vehicle in question was under hypothecation agreement with the replying OP. The replying OP has issued NOC due to premature settlement of the account on 5.1.2007, as such, the replying OP was not a necessary party to the lis.

      The OP No.1 is under legal obligation to compensate the complainant.
    7. In order to prove the case, the complainants tendered in evidence the copy of RC Ex. C-1, affidavit with regard to transfer of vehicle Mark C-2, affidavit of Kulbir Singh Mark C-3, copy of form no.32 Mark C-4, application dated 22.2.2005 Mark C-5, copy of permit Mark C-6, insurance policy Ex.C-7, insurance policy from 6.1.2004 to 5.1.2005 Mark C-8, from 5.1.2005 to 4.1.2006 Mark C-9, from 12.5.2006 to 5.1.2007 Mark C-10, the schedule of payment Ex.C-11, sumulated pre matured termination dated 30.9.2006 Ex.C-12 copy of FIR Mark C-13, bill dated 25.1.2006 Ex.C-14, dated 25.2.2006 Ex.C-15, dated 29.1.2007 Ex. C-16, dated 25.1.2006 Ex. C-17 and affidavit of complainant Ex. C-18, affidavit of Kulbir Singh Ex. C-19, copy of RC Mark C-20, copy of joint application for transfer of vehicle Mark C-21, copy of affidavit of Kulbir Singh Mark C-22 and copy of general power of attorney Mark C-23 and closed the evidence.
    8. In rebuttal, the opposite parties Nos.1,2, & 3 tendered in evidence affidavit of Parvinder Singh Ex. R-1,Ex.OP-2, affidavit of M.L.Mehta Ex. R-2, report of surveyor Mark-A, letter dated 12.2.2006 Ex. R-3 and insurance policy Ex. R-4 and closed the evidence. The OP No.4 tendered in evidence affidavit of Johnson Andrews Ex. OP-1 and closed the evidence.
    9. The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.


    1. The point which calls decision from this Forum is whether the complainants are entitled to get the claim i.e. insured value of the vehicle in question? Admittedly, the vehicle in question had been insured and that the cover note is not disputed. The present complaint has been filed jointly by complainants i.e. by the original owner and also by the purchaser of the vehicle. The law is settled that the claim raised by the original owner -insured is a valid claim. Reliance placed on United India Insurance Co. Ltd.and another vs. Manjit Singh 2007(2)CLT,166,.
    2. The OPs Nos.1,2,3 have raised the preliminary objection that the driver of vehicle no. PB08-AN-5833 was not holding a valid and effective driving licence at the time of accident. The Insurance Company has examined Mrs.Amarjit Kaur , clerk of office of DTO, Hoshiarpur as RW-1 on 7.2.2008, who had stated on oath that entry no 12593/REN dated 17.2.2004 stands in the name of Gurjit Singh son of Iqbal Singh r/o VPO Talwara District Hoshiarpur . She has further stated that old license no.was 7468/R/96-97. She has also stated that entry of renewal bearing no.7468/R/96-97 is not in the register as these pages are missing but she has brought the applications from which the entries are made in the renewal register and as per application, Sr. No.7468 dated 6.2.1997 had been entered in the name of Swaran Singh son of Manjit Singh r/o ward no.7, Garhshanker District Hoshiarpur which bears old no.7339/RDL dated 4.1.1994 valid upto 3.1.1997.
    3. The statement made by Smt Amarjit Kaur as RW-1 makes it clear that entry no 12593/REN dated 17.2.2004 was made in the name of Gurjit Singh son of Iqbal Singh r/o VPO Talwara District Hoshiarpur on the basis of old license no. 7468/R/96-97. As per application, referred to above, Sr. No.7468 dated 6.2.1997 relates to Swaran Singh son of Manjit Singh r/o ward no.7, Garhshanker District Hoshiarpur. This witness has also clarified that entry of renewal bearing no.7468/R/96-97 is not in the renewal register as these papers are missing but she has brought the applications, from which, the entries are made in the renewal register.
    4. Now it is established on record that though the relevant pages of the renewal register with regard to entry no. 7468 /R/96-97 are missing but the application, from which, the entry is made in the renewal register proves that said entry of Sr No.7468 dated 6.2.1997 is in the name of Swaran Singh son of Manjit Singh r/o ward no.7, Garhshanker District Hoshiarpur. The said statement made by Smt Amarjit Kaur goes unrebutted, as such, it is held that the entry no 12593/REN dated 17.2.2004 qua Mark-A in the name of Gurjit Singh son of Iqbal Singh r/o VPO Talwara District Hoshiarpur is not a genuine entry as the entry of old no 7468/R/96-97 on the application is in the name of Gurjit Singh son of Iqbal Singh r/o VPO Talwara District Hoshiarpur, therefore, it can legitimately be concluded that the renewal of license of Gurjit Singh vide entry no. 12593/REN dated 17.2.2004 had not been made on the basis of old entry no. 7468/R/96-97, which is in the name of Swaran Singh.
    5. The law is settled that where the license of the driver is found fake,the Insurance Company had a legal right to repudiate the claim. Reliance placed on 2008(1)ACJ,I, United India Insu.Co. vs. Davinder Singh.
    6. It will not be out of place to state that no Licensing Authority has the power to renew a license on the basis of old license, which is not in the name of the person, who had applied for the renewal of the license. In this case, the license of Gurjit Singh was renewed vide no. 12593/REN dated 17.2.2004 on the basis of old license no.7468/R/96-97, which is in the name of Swaran Singh, therefore, the said renewal cannot transform a valid renewal of the license in favour of Gurjit Singh as the old entry no.7468/R/96-97 on the basis of which the said renewal was made is in the name of Swaran Singh s/o Manjit Singh.
    7. As a result of the above discussion, it is held that the driver of the vehicle bearing no. PB08-AN-5833 was not holding a valid and effective driving license at the time of accident, therefore, the complainants are not entitled to get any claim from the OP,with the result, the complaint is dismissed. No order as to costs.
  • adminadmin Administrator
    edited September 2009
    PER P.D.GOEL,PRESIDENT
    1. The complainant namely Tarlok Singh has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant purchased Lancer Car bearing registration no. HR-06-H-3721 from one Sukhwinder Singh son of Gurdial Singh r/o village and post office Moron Tehsil Philour District Jalandhar. It is the case of the complainant that he signed proposal form and made the payment of premium amount of Rs.14,883/- to the OP-The New India Assurance Co. Ltd,.
    2. It is the allegation of the complainant that the OP with malafide intention issued policy no. 361603/31/05/01/00007758 in the name of previous owner- Sukhwinder Singh . That on the unlucky day of 3.1.2007, the said car met with an accident .The complainant lodged the claim with the OP alongwith necessary documents. The OP deputed the surveyor, who assessed the loss to the vehicle to the tune of Rs.2 lac only.
    3. It is further the allegation of the complainant that he received letter dated 5.3.2007 that the insurance policy was in the name of previous owner, as such, he had no insurable interest .The complainant approached the OP with the request to settle the claim but of no avail. It is further the allegation of the complainant that OP had illegally repudiated the claim, hence this complaint.
    4. OP filed the reply Preliminary objections vis a vis maintainability, jurisdiction, non joinder of necessary parties and resjudicata were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that policy no. 361603/31/05/01/00007758 was the renewal of old policy valid from 28.3.2006 to 27.3.2007. It is denied that the complainant got the car insured from the OP on payment of premium. That as per record, Sukhwinder Singh had got the car insured and the complainant has got no concern with it. It is replied that the claim was lodged by Sukhwinder Singh and not by the complainant. That the OP deputed the surveyor to assess the loss. The surveyor assessed the loss to the tune of Rs. 2 lac.
    5. It is further replied that the claim was repudiated vide letter dated 5.3.2007 as the registered owner of the vehicle is Tarlok Singh but the insurance is still in the name of Sukhwinder Singh. The vehicle was transferred in the name of the complainant on 31.7.2006. However, the insurance policy was not transferred in his name, hence the claim is not payable. It is further replied that Simarjit Singh, the driver of the vehicle was not having a valid DL at the time of accident, hence, the claim is not payable on this count also.
    6. In order to prove the case, the complainant tendered in evidence affidavit Ex.C-1, special power of attorney in favour of Amar Singh Ex.C-2, copy of order dated 24.6.2008 Mark C-3, repudiation letter Mark C-4, insurance policy Mark C-5 and closed the evidence.
    7. In rebuttal, the opposite party tendered in evidence insurance policy Ex. R-1, survey report dated 15.1.2007 Ex.R-2, repudiation letter Ex.R-3, claim form Ex.R-4, copy of DL Mark R-5, claim intimation letter Mark R-6, copy of RC Mark R-7 and affidavit of Parvinder Singh Ex.R-8 and the evidence of the OP was closed by the order of the Forum on 3.3.2009.
    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. That the complainant purchased Lancer Car bearing registration no. HR-06-H-3721 from one Sukhwinder Singh son of Gurdial Singh. It is the grouse of the complainant that the OP with malafide intention issued insurance policy in the name of previous owner- Sukhwinder Singh, though the payment of premium amount of Rs.14,883/- was made by him. That the said car met with an accident .The complainant lodged the claim with the OP. It is the allegation of the complainant that the OP wrote a letter dated 5.3.2007 that the insurance policy was in the name of previous owner, as such, he had no insurable interest .It is further the allegation of the complainant that OP had illegally repudiated the claim. The OP has admitted that policy no. 361603/31/05/01/00007758 was issued. . It is denied that the complainant got the car insured from the OP on payment of premium. That as per record, Sukhwinder Singh had got the car insured and the complainant has got no concern with it. The claim was repudiated vide letter dated 5.3.2007 as the registered owner of the vehicle is Tarlok Singh but the insurance is still in the name of Sukhwinder Singh. The vehicle was transferred in the name of the complainant on 31.7.2006. However, the insurance policy was not transferred in his name, hence the claim is not payable. The Insurance Company has also raised the plea that Simarjit Singh, the driver of the vehicle was not having a valid DL at the time of accident.
    10. Now the point which calls decision from this Court is whether the OP-Insurance Company was justified to repudiate the claim in question? The answer to this is in the negative.
    11. The OP has admitted that complainant- Tarlok Singh was the registered owner of the vehicle. However , the Insurance Company had repudiated the claim qua Ex.R-3 on the ground that the insurance policy Ex.R-1 is in the name of Sukhwinder Singh and has not been transferred in the name of the complainant.
    12. The law is settled that on transfer of a vehicle, the benefit under the insurance policy in force will automatically accrue to the new owner . It is an admitted fact that on the date of accident i.e. on 3.1.2007, the insurance policy was in subsistence i.e. w.e.f. 28.3.2006 to 27.3.2007. It is an admitted fact that the vehicle in question had been transferred in the name of the complainant but the insurance policy had not been transferred in his name.
    13. This being so, the Insurance Company has no legal right to repudiate the claim on the ground that the insurance policy had not been transferred in the name of new owner- complainant on the date of accident. Reliance placed on Shri Narayan Singh vs. New India Assurance Co. Ltd., revision petition no.556 of 2002 decided on 22.5.2007 by the Hon'ble National Commission, New Delhi. Faced with this type of situation, , the OP was not legally competent to repudiate the claim of the complainant on the ground that the insurance policy on the date of accident had not been transferred in his name.
    14. The Insurance Company has also raised the plea that Simarjit Singh, the driver of the vehicle was not having a valid DL at the time of accident. The record of the case was perused. There is nothing on the record to prove that Simarjit Singh, the driver of the vehicle was not having a valid DL at the time of accident, More so, the learned counsel for the OP during the course of arguments had also conceded that the OP has not produced any evidence to prove that the driver at the time of accident was not holding a valid driving licence . thus, it is held that the OP has failed to prove that the driver of the vehicle was not having a valid DL at the time of accident,
    15. The report of the surveyor is Ex.R-2 qua which he has assessed the loss to the tune of Rs.2 lac. The complainant has not produced any evidence to rebut the report of the surveyor, as such, the report is to be accepted as the surveyor is an expert and also an independent person to assess the damage caused to the vehicle of the complainant , thus, we are of the opinion that the claim of the complainant can be allowed on the basis of the survey report Ex.R-2.
    16. As a result of the above discussion, it is held that the OP was not justified in repudiating the claim of the complainant, which amounts to deficiency in service, with the result, the complaint is accepted and the OP is directed to pay the claim amount of Rs.two lac to the complainant with interest @ 9% per annum from the date of complaint i.e. 7.8.2008 till realization alongwith litigation expenses of Rs.1000/- within one month from the receipt of copy of the order.
  • adminadmin Administrator
    edited September 2009
    A.B. Motors Pvt. Ltd. 658, Industrial Area A, G.T. Road, Sherpur Bye pass Ludhiana through Sh. Jasbir Singh son of Sh. Gurcharan Singh employee of the complainant duly authorised vide resolution.
    (Complainant)
    Vs.

    1. The New India Assurance Company Limited D.O. No.12122,22; Mittal Chambers 2nd Floor, Naraiman Point, Mumbai, through its Chairman.

    2. The New India Assurance Co. Ltd. Surya Tower, 4th Floor, 108, The Mall, Ludhiana through its Regional Manager.

    3. The New India Assurance Co. Ltd. D.O. No.121222,22, Mittal Chambers 2nd Floor, Nariman Point, Mumbai, through its Divisional Manager.

    4. Ford Credit Kotak Mahindera Ltd. 36-38-A, Nariman, 227, Nariman point, Mumbai having its Regional office at S.C.O. 122, Feroze Gandhi Market, Ludhiana through its Manager/M.D. Etc.
    (Opposite parties)

    Complaint under section 12 of the Consumer Protection Act, 1986.
    ….
    Quorum:
    Sh. T.N. Vaidya, President.
    Sh. Rajesh Kumar, Member.

    Present:
    Sh. Harvinderpal Singh Advocate for the complainant.
    Sh. V.K. Gupta Advocate for opposite parties no.1 to 3
    Sh. P.S. Gumber Advocate for OP No.4.

    O R D E R
    T.N. VAIDYA, PRESIDENT:


    1
    . Complainant company dealing in sale of cars, had insured their stocks under floaters stock policy with opposite party vide policy no. 121500/46/02/00030 dated 10.6.2002 valid upto 9.6.2003. Policy covered risk against burglary, theft, fire, allied perils, accidental damage, house breaking and robbery etc. Car bearing engine number MAJ BXX NRTA 2A4 48596,diesel model, under the policy was also covered. Car was hypothecated with the opposite party no.4. The said car was stolen from Jalandhar on 25.1.2003, qua which FIR was registered. This happened when on 25.1.2003 two persons came to buy the car from showroom of the complainant and asked for test dive. Employee of the complainant Sh. Sushant Rishi gave trial of the car and after reaching, parked this outside the office. They requested Sh. Sushant Rishi to give trial of petrol model of the same car, as such, Sh. Sushant Rishi locked the car and came to the main gate for collecting the other car. In the mean time those persons opened the car and started driving the same towards Jalandhar City, inspite of the fact that the original keys of the vehicle were with Sh. Sushant Rishi. Matter was reported to the police, who after investigation, filed untraceable report. Claim of theft was lodged with the opposite party who delayed the matter for long time. This act of the opposite party is claimed to be deficiency in service by filing the present complaint under section 12 of the Consumer Protection Act, 1986 and sought direction against the opposite party to pay qua price of the stolen vehicle amounting to Rs. 6,96,000/- along with compensation of Rs.1,00,000/-.


    2. Opposite parties no.1 to 3 in their reply averred that there is no deficiency in service on their part. They have rightly filed the claim as No Claim. Claim so lodged under the insurance policy was got investigated through investigator. Said investigator revealed grave negligence on the part of officials of the complainant. They had not adopted proper procedure before providing the car to unidentified persons for test drive. Had they adopted proper procedure, happening could have been prohibited. They acted negligently in keeping the stock vehicles outside the show room. Complainant was also guilty in not using the Demo car for test drive; by not keeping the keys of the vehicle in proper custody; not making entry of drive test vehicle in relevant register; not getting temporary registration number of stock vehicle before giving test drive. All these acts of negligence disentitle the complainant from claim. Hence, it was rightfully and legally filed as No Claim. Further pleaded that same vehicle was transferred to Jalandhar Branch on 22.1.2003 against gate pass no.1197. Complainant through manufacturer of the car had intimated theft from the premises of the dealer at Bhagat Ford, Ludhiana. hence, there was misrepresentation of facts by the complainant. Had the car was stolen from Ludhiana branch of the complainant, then FIR would have been lodged at Ludhiana. So, they are guilty of misrepresenting the facts


    3. Opposite party no.4 in separate reply have made submissions that allegations of the complainant are matter of record.


    4. To prove their respective versions, 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 and scanned the documents and other material on record.



    6. In this case story is that two customers went to the show room of the complainant and sought a test drive of diesel vehicle. After having test drive, vehicle was parked and locked outside the show room of the complainant by its employee Sh. Sushant Rishi. He then went inside the gate of the show room to bring out petrol driven vehicle as requested by the customers, to have its test drive. In the mean time, when he came back, those persons opened the door and drove away the car towards Jalandhar city. Regarding this episode FIR Ex.C.5 dated 25.1.2003 was lodged. As per complainant, police was unable to trace the vehicle and filed untraced report, which complainant sent to opposite party vide its letter Ex.C.10 dated 15.7.2003.


    7. After complainant lodged the claim with the opposite party, they engaged Sh. D.S. Chadha Investigator, who wrote letter Ex.C.7 dated 15.4.2003 to Branch Manager of the complainant at Jalandhar. Clarification was sought on 10 points. This letter was answered by the complainant vide Ex.C.8 dated 1.7.2003.


    8. It was conveyed to the surveyor that the stolen car was a stock car and not Demo car and the stolen car was not earmarked for Demo. This car which was not meant for Demo was given for test drive on request of the customers. They were not recording kilometer reading in respect of the stock cars. Car was parked outside the show room where security guard is deputed around the clock. Lest key of the car got misplaced, other keys of the stolen car were kept in one ring in custody of security staff.


    9. At this stage, we would prefer to refer admission of the complainant contained in para 4 of the complaint. It is stated in middle of the para that Sh. Sushant Rishi gave trial of the diesel car to the customer and after reaching back, they parked the same outside the office. Then customer requested to give trial of the petrol model of the vehicle. Sh. Sushant Rishi locked the car and came to the main gate for collecting the other car and in the mean time those persons opened the car and started driving the car towards Jalandhar City despite that original keys of the vehicle were with Sh. Sushant Rishi. This admission in para 4 of complaint of the complainant appears to us in conflict with their letter Ex.C.8 addressed to the surveyor and investigator of the opposite party. In para no.6 of the letter, it is mentioned that the car was parked outside the show room where security guard is deputed around the clock. If it was so, it was not possible for those customers to commit the theft of the car in the presence of the security guard. Had Mr. Sushant Rishi locked the car as claimed, then it would not have bee possible for those two customers to open and drive the car with the intention to commit theft. These are certain questions creating doubt in the mind qua authenticity of the allegations.


    10. Hence, we feel that the matter is of complex nature, requiring recording of elaborate evidence in detail by providing chance to both the parties to cross-examine witness of each other. Adoption of such course is not feasible in summary enquiry like this. Also in order to go to depth and bottom of the case, we feel that matter should be investigated thoroughly, whether employee of the complainant contributed by their negligent act or conduct in commission of theft of the car or that colloborated with the thieves. In these circumstances we refrain to decide the complaint and relegate the complainant to get the matter decided by way of detailed enquiry by filing a civil suit in the court of competent jurisdiction.
  • adminadmin Administrator
    edited September 2009
    Vijay Kumar S/o Sh. Babu Ram R/o Village Bangi Kalan, Tehsil Talwandi Sabo, District Bathinda. ... Complainant
    Versus


    1. New India Assurance Co. Ltd., Regd. Office New India Assurance Building, 87 Mahatma Gandhi Road, Fort, Bombay 400 001, through its Chairman.
    2. New India Assurance Co. Ltd, Divisional Office, Hissar Road, New Bus Stand, Sirsa (Haryana) through its Divisional Manager
    3. New India Assurance Co. Ltd., Divisional Office, The Mall, Bathinda, through its Divisional Manager
    ... Opposite parties


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


    QUORUM


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

    Present : Sh. S.N. Baghla, Advocate, counsel for the complainant
    Sh. J.D. Nayyar, Advocate, counsel for the opposite parties.

    O R D E R


    SH. PRITAM SINGH DHANOA, PRESIDENT
    1. Sh. Vijay Kumar son of Sh. Babu Ram a resident of Village Bangi Kalan, Tehsil Talwandi Sabo, District Bathinda, has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (In short called the 'Act') against New India Assurance Company Limited through its Chairman and Divisional Managers Sirsa and Bathinda, for giving them direction to pay a sum of Rs. 1,50,000/- on account of Insurance claim alongwith interest at the rate of 18 percent per annum, compensation in the sum of Rs. 1,00,000/- for mental and physical harassment and any other additional or alternative relief, as deemed fit by this Forum.
    2. Briefly stated the case of the complainant is that he secured comprehensive Insurance policy from the office of opposite party No. 2, vide Cover Note No.0022474 dated 18-10-1998 valid upto 17-10-1999 for his Car/Jeep, manufactured by Mahindra & Mahindra Marshal 750 D1 make, bearing Engine and Chassis No. DW-216995, purchased in the year 1998. He also paid premium in the sum of Rs. 11,784/-. The registration number of the Jeep of the complainant was subsequently allotted HR-23A/5412. On 14-11-1998, the complainant had gone to pay obeisance at Mata Vashno Devi Temple. At about 3.00 P.M. when the vehicle of the complainant was near Pangoli Chowk on Pathankot Shahpur Road, it met with an accident with Car bearing Registration No. PB-03B/0076, in which he and other occupants of the car sustained injuries. There was no negligence on the part of the driver of the complainant. At the instance of driver of complainant, DDR No. 10 was registered on 15-11-1998 in Police Station Shahpur Kandi, District Gurdaspur. He also conveyed intimation about the accident to opposite party No. 2, who deputed Sh. H R Atri, their surveyor & loss assessor to assess the damages caused to his vehicle on 15-11-1998, who after conducting thorough investigation and verification of driving licence of the driver of the complainant, submitted his report dated 17-11-1998. The complainant also deposited in the office of opposite party No. 2 bills issued to him after repair of the vehicle and details of amount spent for transportation from the place of accident and for purchase of its parts. He spent approximately Rs. 1,50,000/- for the said purpose and completed the requisite formalities required for payment of claim, but opposite party No. 2, refused to accede to his request and repudiated his claim vide letter dated 10-01-2000, on the plea that driving licence of the driver Paramjit Singh was not valid although the same was duly verified by their surveyor before submission of his report and it was valid and effective . The police official also stated in DDR No. 10 that there was no negligence on his part, so far taking place of accident, as such, repudiation of his claim by opposite party No. 2, is illegal and arbitrary and there is deficiency in service on their part as they have adopted unfair trade practice in repudiation of claim because of which complainant has been subjected to mental and physical harassment. Hence, this complaint.
    3. On being put to notice, opposite parties filed reply admitting that complainant has secured comprehensive Insurance policy from opposite party No. 2 for the period 18-10-1998 to 17-10-1999 for his Jeep make Mahindra & Mahindra Marshal 750 D1, bearing Engine & Chassis No. DW-216995, Registration No. HR-23A/5412 vide Cover Note No. 0022474 dated 18-10-1998 and paid premium in the sum of Rs. 11,784/-. The factum of taking place of accident is also admitted but it is denied that driver of the complainant was not at fault and negligent in driving the vehicle. It is also admitted that he did not possess valid and effective driving licence. Supply of intimation about the accident and report submitted by the surveyor of the opposite parties Sh. H R Atri, after spot inspection and assessment of loss, is also not denied. It is submitted that the Jeep of the complainant involved in the accident has capacity to carry 10 passengers including driver and comes in the definition of Light Motor Vehicle (Omni Bus). The factum of registration of DDR in Police station concerned, is stated to be matter of record. It is submitted that complainant does not fall within the ambit of definition of consumer and his claim has rightly been repudiated by the opposite parties. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the same with compensatory costs.
    4. On being called by this Forum, to do so, learned counsel for the complainant furnished his affidavit Ex. C-1 and copies of documents Ex. C-2 to Ex. C-9 before he closed his evidence. On the other hand, learned counsel for the opposite parties furnished affidavit of Sh. Vinay Batra, Ex. R-1, and copies of documents Ex. R-2 to Ex. R-16, before he closed their evidence.
    5. We have heard, learned counsel for the parties and perused the oral and documentary evidence adduced on record by them, carefully, with their kind assistance.
    6. Learned counsel for the complainant Sh. S N Baghla, Advocate, has submitted that vehicle of the complainant at the time of accident was driven by his driver who possesses effective and valid driving licence, as evident from copy thereof and report submitted by the surveyor appointed by the opposite parties. As such, repudiation of claim by the opposite parties on that ground cannot be justified especially when they have alleged that there was negligence and carelessness in driving of his vehicle by driver of complainant. Learned counsel has further submitted that burden to prove that accident took place due to some commission or omission of driver of the vehicle of the complainant was upon the opposite parties, but their surveyor has reported that the amount is legally payable and they have not furnished his affidavit or the affidavit of any other person employed in the office of Licensing authority to prove that driver of the complainant did not possess valid driving licence. In support of his contention, he placed reliance upon 1998 (2) CPR 288 The New India Assurance Co. Ltd., Vs. Surinder Pal, wherein it was held by the Hon'ble State Commission of Himachal Pradesh that burden is of Insurance company to prove that driving licence supplied by the driver of the vehicle, involved in the accident, is not genuine. He also placed reliance upon 2005(2) CPJ 69 (NC) Prithvi Raj Vs. Oriental Insurance Co. Ltd., wherein it was held that if no willful negligence or omission on the part of the insured is proved, Insurance company is liable to settle the claim on the basis of loss assessed by the surveyor.
    7. Learned counsel has drawn our attention to the contents of DDR tendered in evidence and has argued that even if this Forum comes to the conclusion that driver of the vehicle of the complainant was not authorised to drive his vehicle, the complainant is entitled to 75 percent of the amount allowed by the surveyor of the Insurance company after assessing the loss treating the same as non-standard claim as per guidelines contained in Clause '10' of the Procedural Manual of Motor Claims of Insurance Company. In support of his contentions, he placed reliance on 2001 (II) CPJ 53 (NC) National Insurance Company Limited Vs. Munni Lal Yadav, wherein claim preferred by the owner of the Jeep was repudiated by the Insurance company on the ground that driver at the time of accident was not possessing valid driving licence. The complaint was allowed by the District Forum but in appeal, the Hon'ble State Commission followed Clause '10' of Procedural Manual of Motor Claims of Insurance Company regrading payment of non-standard claims The Hon'ble State Commission was fully conscious of the guidelines for settling the claim where any of the terms of policy have not been adhered to. It was further held that those guidelines provides for settlement of such claims as non-standard and the percentages are duly indicated therein in case of own damage and third party claims. He also placed reliance on 2003(1) CPJ 204 (NC) Oriental Insurance Company Limited Vs. Ramdhan Aggarwal, wherein driver of the insured was not possessing valid driving licence. His claim was dismissed by Consumer Forum, but appeal was accepted by the Hon'ble State Commission directing the opposite party to pay 75 percent of loss assessed by the surveyor alongwith interest at the rate of 9 percent per annum on non-standard basis. It was held by the Hon'ble National Commission that no interference is warranted in revision. Learned counsel has further relied upon 2005(3)CPR 124 (NC) New India Assurance Company Limited Vs. Surinder Singh Khurana , wherein it was held that even if there is violation of provision of Motor Vehicles Act, it could be termed to be breach of warranty and claim is to be settled on non-standard basis. Learned counsel has urged that repudiation of claim against proposition of law laid down in the authorities and provisions quoted therein, amounts to deficiency in service and complainant is entitled to seek compensation for mental and physical harassment alongwith interest at the rate of 18 percent per annum and amount incurred in filing of the complaint.
    8. On the other hand, Sh. J D Nayyar, Advocate, learned counsel for the opposite parties has submitted that as per report of concerned District Transport Officer, tendered in evidence , the driver of the vehicle of the complainant was entitled to drive only scooter, car and motorcycle but not a Jeep. Learned counsel has argued that complainant has allowed a person, not competent, to drive his vehicle, as such he is not entitled to payment of claim. Learned counsel has argued that Light Motor Vehicle and motor car had been defined in sub section 21 & 26 of Section 2 of Motor Vehicle Act, 1988, as such, until a person who is not specifically entitled to drive Light Motor Vehicle as defined in sub section 21, he cannot drive the same. Learned counsel has argued that as the driver of the complainant did not possess any licence to drive Light Motor Vehicle, as such claim has been rightly repudiated because of which there is no deficiency in service and complaint deserves to be dismissed with compensatory costs. In support of his contentions, he placed reliance upon 2008 (4) CPR 144 (SC) New India Assurance Co. Ltd., Vs. Prabhu Lal wherein it has been held that driver of the vehicle involved in the accident was holding Light Motor Vehicle licence without endorsement to drive Transport vehicle on account of which it was held that Insurance company was not liable to pay compensation.
    9. For the sake of repetition, we feel that there is no necessity to repeat the admitted facts. The parties are at issue regarding entitlement of driver of the complainant to drive his vehicle and extent of compensation payable as per report submitted by the surveyor of the opposite parties. In order to adjudicate the matter in controversy, we think it proper to refer to Clause '10' of the Procedural Manual of Motor Claims applicable in case of own damage and third party claims, which reads as under :-
      “(10) Non-Standard Claims :
      Following types of claims shall be considered as non-standard and shall be settled as indicated below after recording the reasons :
      Sl.No. Description Percentage of settlement
      1. Under declaration of Deduct 3 years' difference in licensed carrying premium from the amount of
      capacity claim or deduct 25% of
      claim amount, whichever is
      higher

      2. Overloading of vehicles Pay claims not exceeding 75% beyond licensed carrying of admissible claim.
      Capacity
      3. Any other breach of warranty/ Pay upto 75% of admissible
      condition of policy including claim.”
      limitation as to use.


    The bare reading of the above said provision reveals that in case of breach of any condition of the policies including limitation to use 75 percent of the admissible claim is to be declared. Since it is proved by the facts borne on record and no evidence has been led to the contrary by the opposite parties, therefore, it cannot be held that accident has taken place due to some omission or commission on the part of the driver of the vehicle of the complainant, as such, even if, he has not specifically granted licence to drive Light Motor Vehicle, the complainant is entitled to payment of amount on non-standard basis as has been held in the authorities relied upon by the learned counsel for the complainant and cited above.
    [*] The complainant has not clearly declared in his complaint or in his affidavit whether his vehicle, damaged in the accident, is a car or a Jeep. As per report of District Transport Officer concerned Ex. R-22, tendered in evidence by the opposite parties, Sh. Paramjit Singh, driver of the complainant had been issued driving licence to drive scooter, car or tractor and the same was valid from 06-09-1995 to 02-04-2014. He has even withheld the licence of the driver and also registration certificate of his vehicle. Therefore, adverse inference has to be drawn against him to the effect that he has intentionally withheld these documents having considerable bearing outcome of the complainant. Unladen weight of the vehicle of the complainant could be assessed from the registration certificate of his vehicle, but he has withheld the same. In the copy of DDR No. 10 registered at Police Station Shahpur, at the instance of the driver of the complainant, the vehicle of the complainant has been termed as a Jeep, which in our opinion falls within the definition of “Light Motor Vehicle” as defined in Sub Section 21 of Section 2 of Motor Vehicle Act, 1988. As such, we are unable to accept the plea of the complainant that his vehicle comes in the definition of car as defined in sub section 26 of Section 2 of the said Act. However, as mentioned in the copy of DDR No. 10 Ex. C-4, a scooterist came in front of a Maruti car coming from opposite direction and in order to avoid the accident, the person driving the said car, struck against the vehicle of the complainant which went out of control before it struck against an Ecquplutus tree. Even the surveyor of the Insurance company in his report Ex. C-8, has reported at page 2 that looking into the position of the vehicle at the spot, cause of accident narrated by the driver of the complainant can be believed and damages sustained by the vehicle is accidental in nature and conforms to the cause as told by him.
    [*] We have carefully gone through, the ratio judgements, relied upon by the learned counsel for opposite parties, but have come to the conclusion, that facts and circumstances thereof, were quite distinguishable from those of the case in hand. In the said case vehicle in question a Tata 709 was registered as a truck goods carrier and was described as public carrier unlike the case in hand in which the driver of the complainant did possess legal and valid driving licence and was carrying passengers therein. Therefore, the ratio judgement delivered by the Apex Court in the above said case does not advance the case of the opposite parties and repudiation of claim by the opposite parties was not justified.
    [*] The complainant has declared Insured's Declared Value of his vehicle in Cover Note Ex. C-2 as Rs. 3,62,000/- and the surveyor of the Insurance company has assessed the loss to the vehicle of the complainant as Rs. 94,068 and 75 percent amount comes to Rs. 70,551/-. He has assessed the cost of salvage value of parts which were replaced as Rs. 750/-.The net amount payable to the complainant for damages caused to his vehicle comes to Rs. 69,801/-. He is also entitled to payment of interest at the rate of 9 percent per annum from the date of repudiation i.e. 10-01-2000 till the date of actual payment. It is well settled that interest and compensation cannot be simultaneously awarded to the consumer. As such, we are not inclined to make payment to the complainant on account of compensation for mental and physical harassment in addition to interest at the above said rate. However, the complainant is entitled for a sum of Rs. 1,000/- on account of expenditure incurred by him for filing of instant complaint.
    [*] In the light of our above discussion, we accept the complaint and direct the opposite parties to pay a sum of Rs. 69,801/- to the complainant alongwith interest at the rate of 9 percent per annum from the date of repudiation of claim i.e. 10-01-2000 till the date of actual payment and a sum of Rs. 1,000/- on account of costs of filing of instant complaint, within a period of two months from the date of receipt of copy of this order.
  • adminadmin Administrator
    edited September 2009
    [FONT=&quot]CONSUMER COMPLAINT No. 06 / 2009[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Settipalli Chennamma, W/o S. Raghuramudu, [/FONT]
    [FONT=&quot]Hindu, Milch Business, aged about 25 years, [/FONT]
    [FONT=&quot]Residing at S.C. colony, Bojjavaripalli Village, [/FONT]
    [FONT=&quot]Proddatur Mandal, Kadapa distrct. [/FONT][FONT=&quot] ….. Complainant. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Vs. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Branch Managar, New India Assurance Co. Ltd., [/FONT]
    [FONT=&quot]Branch Office – 511204, D.no. 8/83, 1st floor, [/FONT]
    [FONT=&quot]Gandhi road, Proddatur – 516 361. ….. Respondent. [/FONT]

    This complaint coming on this day for final hearing on 29-4-2009 in the presence of Sri J. Pullaiah, Advocate for complainant and Sri D.V.S. Prasad, Advocate for respondent and upon perusing the material papers on record, the Forum made the following:-
    O R D E R


    [FONT=&quot](Per [/FONT][FONT=&quot]Sri S. Abdul Khader Basha, Member), [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1. Complaint filed under section 12 of the Consumer Protection Act 1986. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2. The brief facts of the complaint are as follows:- The complainant being a Milk vender purchased the Milk produced animal for Rs. 35,000/- on 13-3-2008 at Tamilnadu state and spent Rs. 3,000/- towards transport charges. She applied for Chief Minister’s Pasukranthi Pathakam and the District Collector, Kadapa sanctioned Rs. 20,000/- through ING Vysya Bank for purchasing the said animal. The SC Corporation, Kadapa granted a sum of Rs. 15,000/- towards subsidy amount. The complainant and other villagers insured the said animal under the policy of the respondent company through ING Vysya Bank vise unit No. 1611204 and policy No. 61120/47/07/01/00000340 with identification No. 1995 for a sum of Rs. 25,000/- validity period from 25-3-2008 to 24-3-2011. The complainant spent Rs. 5,000/- towards purchase of Dana to the Animal and the said animal was giving 8 liters Milk per day. The complainant was selling the Milk @ Rs. 20/- per liter. On 19-8-2008 suddenly the said animal fell down on the ground. By seeing the same by husband of the complainant met Dr. Somasekhar, Animal Husbandry, Proddatur, who visited the house of the complainant and examined the animal and found the animal dead. The complainant informed the same to the Sarpanch of Bojjavaripalli and to the respondent and on the same day panchanama was conducted by the respondent company subordinates at that time the complainant came to know that the deceased animal has lost its tag and they measured the body of the deceased animal and found the measurements are correct. The complainant approached the respondent several times and requested for grant of insurance amount but the respondent postponing the matter day by day for that the complainant spent a lot of money towards her bus fares and her expenses and several demands made by the complainant. The respondent issued a letter dt. 29-10-2008 stating that the tag has not been submitted, as per conditions of the policy “No tag - No claim” hence, repudiated. The respondent intentionally not granted insurance policy amount with malifide intention to evade the insurance policy amount to the complainant and gave false reply notice and harassed the complainant financially as well as mentally. During hot hot arguments between the complainant and Manager of the insurance company, the Manager challenged the complainant that he will not pay the insurance amount towards deceased animal. The complainant insured her milch produced animal by purchasing insurance policy from the respondent company and the same is in force. But the respondent did not pay the insurance amount because of his negligence. The complainant suffered a lot and sustained a loss of Rs. 80,000/- due to the negligence of the respondent. The complainant furnished the claim particulars as follows. [/FONT]
    [FONT=&quot]Cost of the Milch Produce anile[/FONT]
    [FONT=&quot]Rs. 35,000/-[/FONT]
    [FONT=&quot]Transport charges [/FONT]
    [FONT=&quot]Rs. 3,000/-[/FONT]
    [FONT=&quot]Loss of Milk from 19-8-2008 to 26-11-2008 total 99 days per day 8 liters 99X8=792 liters 792 X 20 = 15,840/-[/FONT]
    [FONT=&quot]Rs. 15,840/-[/FONT]
    [FONT=&quot]Expenses for approaching the respondent [/FONT]
    [FONT=&quot]Rs. 3,160/-[/FONT]
    [FONT=&quot]Office damages [/FONT]
    [FONT=&quot]Rs. 18,000/- [/FONT]
    [FONT=&quot]Total [/FONT]
    [FONT=&quot]Rs. 80,000/- [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Therefore, the complainant filed this complaint requesting this forum to direct the respondent to pay compensation of Rs. 80,000/- towards insurance amount along with expenses and damage incurred by her due to the trouble caused by the respondent and to grant cost of the complaint and such other relief as this forum deems fit in the interest of justice. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]3. The respondent filed a counter denying all the allegations and stated that the complaint is bad for non-joinder of ING Vysya Bank as necessary party in whose favour the insurance policy issued by the respondent and the financier Bank had paid the premium directly to the respondent, not individually or directly to the complainant. If at all there is any grievance in the settlement of the claim it is the Finance Bank that has to file the complaint but not by the complainant directly. The Financier bank is a necessary party to this complaint as there is still outstanding loan dues by the complainant and the complaint is liable to be dismissed in limine. The insured product under the said policy is various mitch cows belonging to various beneficiaries and to have the identity of the cows, issued under the policy, a tag with Sl.No. which will be impressed to the ear of the cow and in the said process, the complainant’s cow was allotted tag No. 1995, which is also mentioned in the insurance policy. As per conditions incorporated in the insurance policy “Tag should be surrendered at the time of claim, otherwise it will be treated as no claim”. In the event of death of animal claim shall not be entertained unless the ear tag, it is surrendered to the company. In the event of loss of ear tag. It is the responsibility of the insured to give immediate notice to the company and get the animal re-tagged. As per conditions, the complainant has not surrendered the ear tag No. 1995 to the respondent, on that the respondent has rightly repudiated the claim of the complainant. The complainant never approached the respondent at any point of time and that there is no need for the Manager to challenge the complainant as alleged. The animal bearing tag No. 1995 was insured for a value of Rs. 25,000/- under the said policy and the respondent is not concern with all the heads that the complainant claimed in the complaint. There is no deficiency of service on the part of the respondent in not settling the claim of the complainant. The death of the animal took place on 19-8-2008 and the respondent repudiated the claim on 29-10-2008 and that the respondent has not taken much time for intimation. The respondent requested this forum to dismiss the complaint with costs in the interest of justice. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]4. On the basis of the above pleadings the following points are settled for determination. [/FONT]
    [FONT=&quot]i.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Whether the complainant is entitled to the relief as prayed for?[/FONT]
    [FONT=&quot]ii.[FONT=&quot] [/FONT][/FONT][FONT=&quot]To what relief?[/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]5. On behalf of the complainant Ex. A1 to A9 were marked. Oral arguments were heard both sides. [/FONT]

    6. Point No. 1 Ex. A1 is the Xerox copy of insurance policy No. 61120/47/07/01/00000340. Ex. A2 is the Xerox copy of proceedings of the Dist. Collector, dt. 27-6-2008. Ex. A3 is the Xerox copy of statement showing the list of beneficiaries. Ex. A4 is the Xerox copy of list of beneficiaries identified in Gramasaba for Chief Minister’s Pasukranti patakam. Ex. A5 is the Xerox copy of letter dt. 25-9-2008 of Sarpanch, Upparapalli addressed to the respondent. Ex. A6 is the Xerox copy of letter dt. 29-10-2008 issued by the respondent in favour of the complainant. Ex. A7 is the Xerox copy of description of animal issued by Veterinary Assistant Surgeon, Buddayapalli and Ex. A8 is the Xerox copy of letter of veterinary Assistant Surgeon, Buddayapalli addressed to the respondent. Ex. A9 is the Xerox copy of letter from Branch Head, ING Vysya Bank addressed to the respondent, dt. 10-10-2008.

    7. As could be seen from the documentary evidence on record it is a fact that the complainant purchased the animal in question for Rs. 35,000/- on a loan of Rs. 20,000/- granted by the District Collector under Chief Minister’s pasukranti scheme and Rs. 15,000/- as subsidy from the SC Corporation, Kadapa. This animal along with the animals of other beneficiaries were insured the said animals of the complainant for a sum of Rs. 25,000/- vide Ex. A1 which has identification No. 1995. The only point which is vital in this case is solitary condition exists in Ex. A1 that the Tag should be surrendered at the time of claim, otherwise it will be treated as no claim. The complainant failed to produce the Tag No. 1995 of her animal along with her claim to the complainant and she failed to substantiate the reason for not producing the ear tag of the animal before the respondent for settlement of the claim. As per Ex. A8 the Veterinary Asst. Surgeon stated that the animal died on 19-8-2008 at 11.00 a.m and he conducted the post mortem of the animal and autopsy findings are recorded. So he requested the respondent to consider the claim in favour of the complainant and further mentioned that the tag is not available. In this letter the said doctor has not mentioned the tag No. and neither this doctor nor the complainant produced the post mortem certificate and autopsy findings recorded by the doctor before this forum. Ex. A7 is the printed proforma issued by the respondent company which is called Veterinary certificate and the Veterinary Asst. Surgeon, filled up all the columns with his own hands even he mentioned the tag No. of the animal though it was not available at the time of conducting autopsy. Ex. A7 is not the post mortem certificate but it is a proforma supplied by the respondent company which is filled up by Veterinary doctor, who alleged to have conducted autopsy on the dead body of the animal in question. At any point of time she has not convinced this forum in support of her complaint and there are no merits in the complaint. The complainant also failed to add the name of the Financier which is necessary party and the complaint is bad for non-joinder of necessary party in this case. In view of the above circumstances the complainant deserves no consideration in her favour.
  • adminadmin Administrator
    edited September 2009
    ORDER Date of filing : 04-07-08
    Date of order : 22-04-09
    IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
    CC.111/08
    Dated this, the 22nd day of April 2009.
    PRESENT
    SRI.K.T.SIDHIQ : PRESIDENT
    SMT.P.RMADEVI : MEMBER
    SMT.P.P.SHYMALADEVI : MEMBER

    Dr. Sreekumar.C,
    Ruby Speciality Dental Clinic, } Complainant
    Near Bus Stand, Trikaripur.
    (Adv. P.Narayanan, Hosdurg)

    The Manager,
    New India Assurance Company Ltd, } Opposite party
    Temple Road, South Bazar,
    Payyanur.Po.
    (Adv. A.C.Ashok kumar, Kasaragod)

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


    The complainant a practicing dentist took a policy from New India Assurance Company Ltd under their Health Plus Medical Expenses Policy. During the subsistence of this policy complainant met with an accident and sustained injuries. Immediately after the accident complainant was taken to a Co-operative Hospital, Payyanur. He returned from hospital quickly on the same day. Again he affected with pain and has gone to KAM Hospital, Cheruvathur and treated there. The doctor advised him to take CT Scan. Then the complainant was removed to Sabha Hospital, Payyanur on the same day. Since the treatment necessitated the assistance of a specialized infrastructure, he continued his treatment from Medical College Hospital, Pariyaram. The complainant had altogether spent a sum of Rs.8000/- by way of medical expenses. Though a claim was preferred before the opposite party it was rejected on flimsy grounds. Hence the complaint alleging deficiency in service on the part of opposite parties in rejecting the claim.


    2. According to opposite party the complainant had sustained dislocation of his left shoulder in the accident. He was treated at KAH Memorial Hospital, Cheruvathur on 9-12-07 and discharged on the same day. As per the Health Plus Medical expenses policy hospitalization for a period of less than 24 hours is admissible in case of injury amounting to fracture and not for dislocation since the complainant had sustained only dislocation of the shoulder, the claim is not allowed. Hence there is no deficiency in service on their part.


    3. Complainant produced documents that is marked as Exts. A1 & A2. Documents of opposite party is marked as Exts B1 to B9. Both sides heard.
    Insurance is a contract by mutual consent and both parties are bound by the stipulations made thereon. The clause 1.4 specifically provides that expenses incurred on hospitalization for minimum period of 24 hours are admissible only to certain specific treatment mentioned in the said clause It no where provides that treatment for dislocation of shoulder less than 24 hours is admissible. That being so the complainant cannot claim a relief that is out side the coverage of the policy issued to him.
  • adminadmin Administrator
    edited September 2009
    ORDER
    SMT. BEENA KUMARI. A., MEMBER:


    Brief facts of the case are as follows:


    The complainant has taken an insurance policy under the Pravasi Suraksha Kudumba Arogya Scheme of the opposite party. The effective date of the policy as per the policy certificate is 12/5/2000. During July 2000 the complainant felt a pain on his left arm. Further the disease of the complainant was diagonised as “Cervical Disc Prolapse C6-C7”. Complainant was admitted in the Medical College Hospital and he had undergone “Anterior Cervical Discectomy C6-C7”. Complainant stated that he had spend more than Rs.50,000/- for his treatment. The complainant submitted that as per the terms and conditions of the policy he is entitled to get the whole expenses incurred for the treatment. Therefore the complainant had submitted the duly filled up Claim Form with the opposite party along with supporting documents required for processing the claim on 1/12/2000. But the opposite party rejected the claim without any basis and contrary to the records produced by the complainant along with the claim form. Complainant submitted that he had suffered much mental agony due to the rejection of his claim by the opposite party and has alleged that there is deficiency in service on the part of the opposite party.


    2. The opposite party New India Assurance Co. Ltd filed their version. The main contention raised by the opposite party is that the symptoms of Cervical Disc Prolapse C6-C7 was existing prior to 1 ½ years from the date of consultation ie. 10/10/2000. The symptoms had thus existed prior to the date of proposing the insurance. As per the conditions of the policy issued to the complainant all pre-existing disease/conditions and complications arising there from are excluded from the scope of the policy cover. Exclusion No.VIII.I of the policy states as follows: "Such diseases which have been in existence at the time of proposing this insurance, pre-existing condition means any injury which existed prior to the effective date of this insurance. Pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of this insurance whether or not the insured person has knowledge that the symptoms were relating to the sickness. Complication arising from pre-existing disease will be considered part of that pre-existing condition". For that reasons the opposite party repudiated the claim vide letter dated 5/1/2001. Hence opposite party prayed for the dismissal of the complaint.


    3. In this case complainant and opposite party filed proof affidavit. Nobody has been cross examined.
    From the side of complainant 6 documents were marked and from the side of opposite party 5 documents were marked.


    4. Points that would arise for consideration are:


            1. Whether the complainant had the alleged disease before the commencement of the policy?
            2. Whether the repudiation of the claim by the opposite party is justifiable?
            3. Reliefs and costs?


    5. Points (i) to (iii) : In this case the complainant's case is that he is entitled to get the expenses incurred by him for his treatment under the insurance policy issued by the opposite party. The opposite party argued that the complainant is not eligible to get the benefit under the policy because the complainant was having the disease at the time of issuing the policy. To prove his claim complainant has filed proof affidavit and produced 6 documents. The document marked as Ext.P1 is the copy of policy certificate No.2000/47/760702, Ext.P2 is the copy of claim form submitted before the opposite party, Ext. P3 is the treatment certificate of the complainant. Ext.P4 is the copy of letter dated 5/1/2001 of the opposite party. Ext.P5 is the copy of letter dated 6/7/2001 of the complainant with Acknowledgment card. Ext.P6 is the copy of referral O.P card and summary sheet of complainant's treatment at Medical College Hospital, Thiruvananthapuram. The opposite party also filed proof affidavit and produced 5 documents to prove their contentions. Ext.D1 is the copy of policy and its conditions, Ext.D2 are the answers to the questionnaire submitted by the opposite party to Dr. Marthanda Pillai, who treated the complainant. Ext.D3 is the claim repudiation letter dated 5/1/2001. Ext.D4 is the repudiation letter dated 3/9/2001, Ext. D5 is the treatment record of the complainant issued by Dr. Marthanda Pillai, who had treated the complainant.


    6. We have carefully examined the documents produced by the complainant and opposite party. Dr. Marthanda Pillai is the doctor who had treated the complainant. Ext.D2 is the answers to the Questionnaire submitted by the opposite party to Dr. Marthanda Pillai. Ext.D2 clearly shows that the complainant was suffering from neck pain, shoulder pain, radicular pain in left arm and was undergoing treatment for the above said complaints for 1 ½ years prior to the date of consultation after arrival in India on 10/10/2000. The symptoms of said disease started prior to the date of proposing the insurance which was on 12/5/2000. As per the conditions of policy Ext.D1, all pre-existing disease, conditions and complications arising there from are excluded from the purview of the policy.
    Exclusion No.VIII.I of Ext.D1 policy states as follows:-


    "Such diseases, which have been in existence at the time of proposing this insurance. Pre-existing condition means any injury, which existed prior to the effective date of this insurance. Pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of this insurance whether or not the insured person has knowledge that the symptoms were relating to the sickness, complication arising from pre-existing disease will be considered part of that pre-existing condition". Opposite party argued that due to the abovesaid reasons the opposite party was not in a position to consider the claim of the complainant for payment and the opposite party repudiated the claim. Opposite party also submitted that the opposite party is bound to indemnify the complainant/insured only as per the conditions of policy which constitute the contract of insurance. As per the conditions of policy issued to the complainant, the complainant is not entitled to get any amount from the opposite party. We also agree with the argument of the opposite party on the basis of the evidence and documents submitted by the opposite party. From the materials on record we have concluded that the complainant had failed to establish his case. In this case, the contention raised by the opposite party that the disease Cervical Disc Prolapse C6-C7 was existing before 1 ½ years from the date of commencement of the insurance policy has not been proved otherwise by the complainant. But the opposite party has succeeded to prove their contentions. In this case the opposite party has not committed any deficiency in service or unfair trade practice to the complainant. The repudiation of the claim of the complainant by the opposite party is valid and justifiable.


    In the result complaint is dismissed.
  • adminadmin Administrator
    edited September 2009
    ORDER


    ORDER Speaking through Smt.Meenakshi Kulkarni, Lady Member.

    1. This complaint is filed on 30.01.2009 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.79,697=00 along with 12% interest, Rs.15,000=00 for mental agony, Rs.5,000=00 for cost of litigation etc.


    2. The facts of the case in nutshell as is narrated by the complainant are as follows: The complainant is a Managing Partner cum Dealer of I.B.P. Co. Ltd. and his running a Petrol and Diesel pumps under name and style “Sri. Yalaguresh Petroleum”, near Nidagundi on NH-13 Road. He insured his business with OP under Policy No.670906/48/05/00584 which was valid for a period from 05.08.2005 to 04.08.2006. The said policy covered the risk of money for payment of wages, salaries and the other earnings and the money in the personal custody and also collected by the appointed workers under him. On 21.06.2006 at about 12-30 in the night, some un-known persons entered the premises of the said Petrol Pump and assaulted the employees and the stole a sum of Rs.79,697=00 from the locker and the Cash Counter. The said incident was registered by his Employee Sri.Vijaykumar Jakkannavar in Muddebihal Police Station under the Crime No.136/2006. At the time of giving the said information, the employee was unaware of the cash kept in the Cash Counter and the locker. So, he wrongly submitted the stolen amount in the said incident of Rs.26,000=00 only. He was unaware of the business transaction held on 19.06.2006 from 8-00 AM to 12-00 AM and the said amount being kept in the locker in the office premises. However, he specifically stated at the time of the complaint that the exact amount being stolen from the premises would be revealed only after verifying outlet sale bills and readings of the pumps. Thereafter, on the same day i.e. on 21.06.2006 subsequent complaint was filed before the Police Station by the complainant stating the actual monitory loss caused due to the theft in the said incidence being to the tune of Rs.79,697=00. It was also submitted that the said submission filed before P.S.I. Muddebihal should be taken as part and parcel of the FIR. The Insurance Policy of the complainant covered the risk of indemnity for monitory loss due to robbery, theft and other natural calamities. Hence, the said claim is covered under the Policy. The complainant is an indemnity holder of the said Policy. So he submitted the claim to the OP along with all the necessary documents. On the receipt of the same, OP raised the objection with regard to the banking transaction on the next day of the incident with respect to deposit of the sum of Rs.54,800=00 in the bank and called for the explanation by a letter dated: 05.10.2007. The complainant submitted the same to the OP. However, OP did not act upon the said submission so the complainant issued a legal notice on 30.06.2008 calling upon to pay the loss and settle the claim within stipulated time of 15 days. However, OP did not act upon the same. Hence the complaint.


    3. After receipt of the notice, OP Counsel filed the objections. In this, OP totally denies the complaint as false and vexatious. The statement of the complainant that Rs.79,697=00 were stolen on 21.06.2006 and registration of the Police Complaint with the wrong figure of Rs.26,000=00 are totally denied by the OP-Counsel. The OP appointed Mr. Birejdar & Co., Chartered Accountants as an independent Surveyor and Loss Assessor to carry-out the loss caused to the complainant due to the theft. The said Investigation Report was submitted under Report No.6510 dated: 10.07.2007. In this, the loss due to the theft was assessed at Rs.23,624=00. So, OP immediately offered to pay the said actual loss to the complainant. But, the complainant refused and neglected to accept the same. Hence, OP prays to dismiss the complaint with cost.


    4. The complainant counsel has filed 20 documents in support of his case which are marked as Exhibit C1 to C20 and OP Counsel has filed only one document in support of his case which is marked Exhibit OP1. Perused all the documents.


    5. 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 OP has rendered deficiency in service to the complainant entitling him to the claim as is sought for? (ii) What Order?


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



    7. We shall substantiate our findings on the following: R E A S O N S POINT NO.1: Exhibit C1 is the original Insurance Copy field by the complainant. Exhibit C2 and C13 are the true copy of the FIR. Exhibit C5 is the Spot Panchanama. Perused all these documents. In this, it is seen that Vijaykumar Rayanna Jakkannavar has filed this FIR with Muddebihal Police Station under Crime No.136/2006. In this, he had admitted that the total cash of Rs.26,000=00 is stolen. Exhibit C4 is an additional statement given by the complainant on 21.06.2006 to PSI Muddebihal in support of the original FIR as noted above. Exhibit OP1 is the Investigation Report submitted by M/s Birajdar & Co., Chartered Accountant who is an independent Surveyor and Loss Assessor at Solapur. The main contention in this complaint is towards the loss of actual cash to the tune of Rs.79,697=00 as claimed by the complainant as against assessed by OP to the tune of Rs.23,623.88 which is arrived by the Chartered Accountants appointed by the OP-Company. We perused the additional Statement given by the complainant to the P.S.I. Muddebihal with the Investigation Report of OP. In this, the diesel pump outlet I and II and petrol pump outlet of I and II on 19.06.2006 to 20.06.2006 from 8-00 AM to 8-00 AM are produced in total. There is no dispute among between the parties as to quantity of liters of diesel sold and the cash received. The same tallies with the observations made by the Chartered Accountants on the petrol pump outlet I and II and diesel pump outlet I and II on 19,06.2006 and 20.06.2006 and also of 21.06.2006 from 8-00 AM to 8-00 AM. All the cash entries as is claimed by the complainant are tallying with the corresponding entries made by the Chartered Accountant in his Investigation Report including the cash received from Mr. S.S.Patil towards credit sales recovery on 20.06.2006. The figure arrived by the OP’s investigator for the robbery on the midnight on 20.06.2006 is Rs.23,623.88 after deducting the cash deposited on 21.06.2006 of Rs.54,800=00. For this, an explanation from complainant has stated that the cash which is deposited in given by the complainant the S.B. Account on 21.06.2006 is out of the sale proceeds on 21.06.2006 after the Panchanama and Police Investigation was over. This is out of the sales which started on 21.06.2006 at 8-00 AM in the morning till 3-30 PM. The said explanation was called for by the OP vide letter dated: 12.03.2007 towards in the name of the complainant Exhibit C6. When such explanation is already given by the complainant, there was no need for OP to continue with the deduction of Rs.54,800=00.

    The OP should have the settled the claim at Rs.78,423.88 as his arrived by the independent loss and surveyors appointed by themselves. We believe the affidavit of the complainant to this effect because this explanation was given in-writing on 05.11.2007 by the complainant to the quarries raised by the OP himself. The Investigation Report is dated: 10.07.2007. The explanation of depositing the amount of Rs.54,800=00 on 21.06.2006 was submitted by the complainant on 05.11.2007. Under such circumstances, the OP should have considered the said submission and settled the same at Rs.78,423.88 as is arrived by their independent investigator M/s Birajdar and Co., Chartered Accountant. This is because all other transaction including sale of petrol and diesel and deposit of money in the banks, name of the attenders on the petrol pump etc. tally with each other.

    On Page No.1 of the said Investigation Report, the documents on which the said Investigation Report is prepared the listed-out. When such a detail investigation is made by a qualifying independent loss assessor, there was no need for OP to doubt on the explanation given by the complainant. If at all OP had any doubt of the said deposit of money on 21.06.2006, OP could have again gone in details about the corresponding document to rule-out the doubt which is not done by the OP. On Page No.2 of the said Investigation Report in column No.3, the presumed explanation for deposit of Rs.54,800-00 is given as under : “It appears that the cash deposited on 21.06.2006 in State Bank of India, Nidgundi Branch Rs.54,800=00 is out of diesel, petrol and oil sales of partly 20.06.2006 and partly 21.06.2006 upto 3-30 pm and only remaining cash balance is lost due to burglary from the pump” With this, it can be seen that it is not confirmed opinion based on the basis of the documentary evidence. This is because all the calculations as seen in the Annexure-A on both the dates i.e. 19.06.2006 and 20.06.2006 totally tally in quantity of liters sold, amount of cash received, amount of cash deposited in the bank and other expenses done in the cash.

    The total cash receipts of 20.06.2006 is already deposited and is admitted by the Chartered Accountants. Under such circumstances, the deduction of Rs.54,800=00 only on account of suspicion is wrong especially when the same is explained by the other-side party. The short notes of cash flow admitted by OP’s Expert is as under: Date Name of Attender Sale of Deisel/ Petrol, Oil etc. Cash Collected Cash Deposited Bank Deposit/ Other exps. 19.6.06 Hanumant 2010.60 litres Oil: 578-00 76076.28 7295=00 12931=00 50000=00 6426.50 19.6.2006 Bank LIC Prem. 20.6.2006 Bank 20.6.2006 Bank 19.6.06 Haggi 357.00 Ltrs Petrol 17907.50 2204=00 10000=00 5703.50 19.6.2006 Bank 20.06.2006 Bank 20.06.2006 Bank 20.06.06 Haggi 374.00 Ltrs Petrol Oil 20607.40 550.66 3296=00 500=00 17362=00 20.6.2006 Bank Pigmy Stolen (21.6.06 Bank) 20.06.2006 Vinay 2004.60 ltrs Diesel Oil 75773.38 60.00 14572-00 200=00 61061=88 20.06.2006 Bank Driver Stolen 21.6.2006 Bank The stolen cash shown above is deposited in Bank on 21.6.2006 whereas the theft has already taken place in midnight at 12-30 when it is so, the deposit of Rs.54,800=00 on 21.6.2006 is necessarily out of the sale proceeds of 21.6.2006 from 8=00 AM to 3=00 PM.


    8. Hence, we are of the opinion that the deduction of Rs.54,800=00 from the total amount with the pump attendant arrived by the investigation is not legal and not supported by the documentary evidence. This is the deficiency in service rendered by the OP. Hence, we answer to Point No.1 in affirmative.


    9. POINT NO.2: The complainant has prayed for Rs.79,697=00 towards the actual loss of money. In the reports submitted by the independent Surveyor and Loss Assessor appointed by the OP-Counsel and this report figures out the loss at RS.78,428=88. This difference is due to 32 liters of petrol used on 19.06.2006 for testing and Gophless. However, we goby the same and in our opinion, the complainant is entitled to Rs.78,428=00 towards the loss of cash on the date of the theft. The complainant also prays for Rs.50,000=00 towards mental agony and Rs.5,000=00 towards cost of litigation. In our opinion, Rs.5,000=00 towards mental agony and Rs1,000=00 towards cost of litigation will meet the ends of justice. In view of the aforesaid discussion, 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 78,428=00 (Rupees seventy eight thousand four hundred twenty-eight) towards theft of cash of the complainant in his business premises 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.5,000-00 (Rupees five thousand) towards mental agony & Rs.2,000-00 (Rupees two thousand) towards the cost of this litigation to the complainant. There is no interest towards the mental agony and cost of litigation.
  • adminadmin Administrator
    edited September 2009
    Taj Ahamed Khan s/o. Raheem Khan,
    Aged about 32 years, Complainant
    Chikkakunhala village,
    Kadaba hobli, Gubbi taluk
    (By advocate Sri.M.S.Chandrashekharaiah)

    AND


    The Manager,
    New India Assurance Co. Ltd,
    Branch office, Opposite party
    Tumkur shopping complex,
    BH Road, Tumkur
    (By advocate Sri.K.V.Sudarshan Kumar)
    ORDER
    This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act for short)

    2. Through this complaint, the complainant prays for an award and order against the Opposite Party (hereinafter called the OP for short) to pay a sum of Rs.1,00,000/- with 12% interest and for such other reliefs.

    3. The facts given rise to institute the complaint may be summarized as thus:
    It is his case that, the complainant is the R.C. owner of Tempotrax bearing Reg. No.KA-06-B-7722 and insured his vehicle with the OP-insurance company. The policy was valid from 4-10-2007 to 24-8-2008.

    4. It is further contended that, the complainant’s vehicle met with an accident on 9-2-2008 at about 8.30 a.m. near Gopalapura gate. The said vehicle had dashed to the road side tree and got damaged. Thereafter, the complainant intimated to the OP-insurance company and he had also submitted a claim form and other relevant documents to the OP-insurance company.

    5. It is further contended that, the concerned police have registered a case against the driver of the vehicle in Cr.No.22/2008. Thereafter, the complainant has repaired the vehicle at Bombay Auto Garage, BH Road, Tumkur and the said garage has issued an estimate to the complainant. The said vehicle was parked in the garage for about 3 months.

    6. It is further contended that, the complainant was earning at Rs.10,000/- per month from that vehicle. The complainant had made repeated requests and personal representation before the OP to settle the claim, but the OP-insurance company has not settled the O.D. claim of the vehicle involved in the accident. The said vehicle was damaged upto the tune of Rs.1,00,000/- and the complainant has lost the income due to the damages of the vehicle.

    7. The complainant has issued a legal notice to the OP and the said notice was served on the OP. But till today the OP- insurance company did not settle the claim nor replied the notice. It is further contended that, the policy issued by the OP-insurance company was valid as on the date of accident and it covered all the risks. Hence, this complaint.

    8. The OP who has been notified of the complaint entered appearance through his counsel and resisted the same.

    9. The gist of the objections is as follows:
    In the objections filed by the OP, it is alleged that, the complaint is not maintainable either in law or on facts as the averments are false, baseless and vexatious and therefore, it is liable to be dismissed in limine.

    10. It is further alleged that, the driver of the vehicle bearing Reg. No.KA-06-B-7722 was possessing learner’s licence and he was authorised to drive L.M.V. (N/T) and the said learner’s licence was valid from 31-1-2008 to 30-07-2008. It is further alleged that, on the date of alleged accident, the said driver by name S.Praveen Kumar was driving the vehicle bearing Reg. No.KA-06-B-7722 which is a Maxi-cab, passenger carrying vehicle. The driver of the above said vehicle was not possessing badge issued by the competent authorities to drive the passengers vehicle and as such the complainant is not entitled to claim the damages caused if any to the said vehicle. Since, he has permitted the driver to drive the vehicle intentionally, knowing fully well that the said driver was not possessing valid and effective driving licence and badge to drive the above said vehicle.

    11. It is further contended that, after the alleged accident, the OP has instructed the surveyor to conduct the survey and assess the damages if any caused to the vehicle and intimated the same to the complainant for assisting the surveyor for conducting the survey and assessing the damage. Inspite of due intimation by the OP, the complainant has failed to assist the surveyor for assessing the damages. As such the surveyor was unable to submit his report in the said case.

    12. It is further alleged that, since the survey report has not yet been received by the OP, the O.D. claim of the complainant is still pending for consideration and the complainant has filed this complaint in a hurried manner, eventhough, the OP has not yet repudiated his claim and as such, the complaint before this Hon’ble Forum is not maintainable. Since there is no cause of action for the filing the complaint, it is liable to be dismissed in limine on that score alone.

    13. This OP while emphatically denying all the complaint averments as false and untenable, interalia pleaded that, there is no cause for the complaint, since the OP has not yet repudiated the claim of the complainant and the same is still pending under consideration for want of survey report. As such the complaint is not maintainable and it is liable to be dismissed in limine. Accordingly, he prays for dismissal of the complaint as not maintainable and premature one with exemplary costs.

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

    15. The questions that arise for our considerations are:
    1)[FONT=&quot] [/FONT]Is not the complaint maintainable?
    2)[FONT=&quot] [/FONT]Is there any deficiency of service by the OP?
    3)[FONT=&quot] [/FONT]Is the complainant entitled for the reliefs as claimed?

    16. Our findings on the above questions are here under.
    Point No.1: Yes
    Point No.2: Does not arise for consideration
    Point No.3: As per order
    REASONS

    17. From materials placed on record and the contention of the parties, it is seen that, the claim of the complainant has not yet been repudiated by the OP. It is the case of the opponent that, since no assistance was given to the surveyor to conduct the survey and assess the damages, he could not submit his report. Consequently, the claim of the complainant could not be finalized. As far as this allegation is concerned, there is no denial of the other side. Therefore, it is clear that, the claim of the claimant is still pending before the OP for certain details. Therefore, it is apparently clear that, no cause of action had arisen to the complainant to move this forum. Therefore, we hold the complaint is premature and it is liable to be dismissed. However, it is desirable to give direction to both parties to do the needful for early disposal of the pending issue. Accordingly, we proceed to pass the following:
    ORDER
    The complaint is dismissed but without costs. However, it is ordered that, the OP shall depute the surveyor to assess the damages of the vehicle without delay and the complainant shall extend his co-operation for assessing the damages of the vehicle. This process shall be done within 4 weeks from the date of this order.
  • adminadmin Administrator
    edited September 2009
    Mr.K.Prabhakar Bhat,
    S/o. Late K.Subraya Bhat,
    Aged 58 years,
    Kakkebettu House,
    Kulashekar Post,
    Mangalore – 575 005. …….. COMPLAINANT

    (Advocate: Sri.Keshav Nandodi).

    VERSUS

    1. The New India Mutual Benefit Society,
    Regd. & H.O: New India Assurance Co. Ltd.,
    New India Assurance Building,
    87, Mahatma Gandhi Road,
    Fort, Mumbai – 400 001,
    Represented by its Secretary.

    2. The New India Assurance Co. Ltd.,
    II Floor, G.H.S. Centenary Building,
    G.H.S. Road, Mangalore – 575 001,
    Represented by its Divisional Manager.

    ……. OPPOSITE PARTIES
    (Advocate for Opposite Party No.1 & 2: Sri. K.S. Udayanarayana).


    ***************
    ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;

    1. The facts of the complaint in brief are as follows:
    This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
    The Complainant submits that he was an employee of New India Assurance Company Limited and was working as senior assistant and he was retired from service on March 2004 while he was serving at Opposite Party No.2 at Mangalore by opting Voluntary Retirement Scheme. The Complainant submits that he was member and subscribing for mutual benefit society Retirement Benefit Scheme (herein after called ‘RBS’) of Opposite Party. He became member of Opposite Party No.1 on 30.12.1987 after he was confirmed in the service of New India Assurance Company Limited.
    It is submitted that, as per circular dated 26.2.1982 an amount will be collected Rs.2/- per member at the time of retirement of any member of this scheme and given to the retiring member in early course. As per circular dated 14.4.1982 to extend the benefit of the above scheme to those who leave the company after putting in more than 20 years service, so that the benefit could be extended to persons leaving earlier than the date of retirement and the initial enrollment has been extended from 31.3.1982 to 30.4.1982, whoever enroll on or before 30.4.1982 will be eligible for benefit under the RBS. The above eligibility of benefit available only on completion of 5 years from their date of enrollment. And further submitted that, as per the circular dated 11.9.1986 the above benefit extended to those staffs who have not yet enrolled themselves in the scheme provided they have minimum 15 years of service left in the Company. Those who join the Company after 31.12.1986 also eligible for the benefit of RBS.
    It is further submitted that, as per the circular dated 9.10.1999 to avail benefits under RBS the member should have a minimum of 20 years of service in the Company. The newly enrolled members also eligible for the benefits under the RBS even in case of voluntary retirement scheme provided they fulfills the criteria of minimum 6 months membership.
    The Complainant submits that, he joined the Company on 30.6.1987 and enrolled as a member of RBS on 30.12.1987 i.e., after 90 days eligibility period as per the circulars. After he joined the Company and enrolled as RBS as member he left with more than 15 years of service i.e., retired in 2004 after putting 17½ years and submitted that the conditions in circular dated 11.9.1986 fulfilled by the Complainant but the Opposite Party No.1 refused to extend the benefits under the said scheme stating that Complainant did not put in total 20 years of service to avail benefits. The Complainant submits that, the refusal on the part of the Opposite Party No.1 is not justified and contended that the service rendered by the Opposite Parties amounts to deficiency and on 29.2.2008 issued a legal notice calling upon the Opposite Party No.1 to extend the benefit but the Opposite Party No.1 failed to pay the benefits and hence the Complainant filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from the Forum to the Opposite Parties to extend the mutual benefit scheme to the Complainant along with compensation of Rs.25,000/- and costs of the proceedings.

    2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed separate version.
    Opposite Party No.1 taken a plea that this Forum has no territorial jurisdiction to deal with the case as the office of the Opposite Party is at Bombay and that no transaction of whatsoever nature taken place within the jurisdiction of this Forum and submitted that the Complainant is not entitled for the benefits raised by the Complainant. And as per the circular the Complainant is not entitled to avail any benefits and submitted that the service period of the Complainant comes to 16 years, 8 months and 12 days only and not as contended by the Complainant.
    And it is further submitted that, the benefit is operative as per the rules operative from time to time and the rules applicable to the Complainant are 20 years of service in the organization and the contribution of RBS for the minimum period of 5 years. Therefore the contention of the Complainant is not sustainable and the circular dated 9.10.1999 which superceded all the earlier circulars and the said circular is for fresh enrollment and not applicable to the Complainant and contended that there is no deficiency and prayed for dismissal of the complaint.
    The Opposite Party No.2 also taken a contention that there is no consumer relationship between the Complainant and this Opposite Party and bad for mis-joinder of this Opposite Party. No relief can be attributed to the Complainant from this Opposite Party and submitted that the Complainant has been working with the 2nd Opposite Party is the absolutely incorrect and there was no transition between this Opposite Party and the Complainant at any point of time during his service and prayed for dismissal of the complaint.

    3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
    (i)[FONT=&quot] [/FONT]Whether the Complainant is a consumer and this Forum has jurisdiction to entertain the complaint and the complaint is bad for mis-joinder of necessary party?

    (ii)[FONT=&quot] [/FONT]Whether the Complainant proves that the Opposite Parties have committed deficiency in service?

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






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

    4. In support of the complaint, Sri.K.Prabhakar Bhat (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C16 were marked for the Complainant as listed in the annexure. One Sri.Anil Balkrishna Donge (RW1), Trustee of the Opposite Party No.1 and one Sri.Narasimha Prabhu (RW2), working at Opposite Party No.2 filed counter affidavits and answered the interrogatories served on them. Ex R1 to R4 were marked for the Opposite Parties as listed in the annexure. Both the parties produced notes of arguments.
    We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.
    Point No.(ii) to (iv): As per the final order.
    Reasons


    5. Point No.(i):
    It is undisputed fact that, the Complainant last served in Opposite Party No.2 and contributed the membership fee for Retirement Benefit Scheme (herein after called ‘RBS’) was deducted from the salary while he was serving at Mangalore at Opposite Party No.2. Hence the last transaction took place within the jurisdiction of this Forum and hence this Forum has jurisdiction to entertain the complaint. Point No.(i) held in favour of the Complainant.

    Point No. (ii) to (iv):
    In the instant case, it is admitted that the Opposite Party No.1 is a Mutual Benefit Society situated at Mumbai and Opposite Party No.2 is an Insurance Company situated at Mangalore. The Complainant was an employee of the Opposite Party No.2 and he was working as a Senior Assistant and retired from service on March 2004 while he was serving at Opposite Party No.2 and opted Voluntary Retirement Scheme. The Complainant was member and subscribing for Mutual Benefit Society R.B.S. of Opposite Party. It is also undisputed that the Complainant became a member of Opposite Party No.1 on 30.12.1987 as per circular dated 26.2.1982 an amount collected at the rate of Rs.2/- per member at the time of retirement. And it is also not in dispute that he has enrolled as a member of RB Scheme on 30.12.1987 i.e., after 90 days eligibility period as per the circular. After he joined the Company and enrolled for RBS as member he left with more than 15 years of service and retired in 2004 after putting 17½ years.
    From the above admitted facts, it is proved that the Complainant enrolled as a member of RB Scheme on 30.12.1987 and he joined the Company and left with more than 15 years of service and the conditions in the circular dated 11.9.1986 fulfilled by the Complainant. However, we have perused the circular dated 26.2.1982, wherein it is proved that the Opposite Party No.1 stated the retirement benefit scheme for the benefit of the employees of Opposite Party No.2. On careful scrutiny of the above circular, an amount will be collected at the rate of Rs.2/- per member at the time of retirement of any of this scheme to get the benefit. And further we have perused the subsequent circular dated 14.4.1982 the conditions are as follows:-
    i.[FONT=&quot] [/FONT]………..the Committee has now decided to extend the benefit of this scheme to those who leave the Company after putting in more than 20 years service, so that the benefit could be extended to persons leaving earlier than the date of retirement.
    ii.[FONT=&quot] [/FONT]In the light of the above the last of date for initial enrollment has been extended from 31st March, 1982 to 30th April 1982. Thus, all those who enroll themselves on or before 30th April, 1982 will be eligible for benefit under the R.B. Scheme with immediate effect.
    iii.[FONT=&quot] [/FONT]Those joining the Company after 30th April 1982 will have to do so within 90 days of their confirmation/eligibility, and will be eligible for this benefit only on completion of 5 years from their date of enrollment in the R.B. Scheme.

    As per the Circular dated 11.9.1986,

    i.[FONT=&quot] [/FONT]…….. decided to extend the benefit of R.B. Scheme to those staff members who have not yet enrolled themselves in the scheme provided they have minimum 15 years of service left in the Company.
    ii.[FONT=&quot] [/FONT]………………. Those joining the company after 31st December 1986 will have to do so within 90 days of their confirmation/eligibility and will be eligible for this benefit only on completion of 5 years from the date of their enrollment in the R.B.S.

    As per Circular dated 9.10.1999,

    i.[FONT=&quot] [/FONT]Members should have a minimum 6 months of balance period of service left with the company as on 1st November 1998 and shall close on 31st March 2000.
    ii.[FONT=&quot] [/FONT]To avail the benefits under the RBS Scheme, the member should have a minimum of 20 years of service in the Company.
    “However, the newly enrolled members shall be eligible for the benefits under RBS Scheme even in case of Voluntary Retirement Scheme of the Company, provided she/he fulfills the criteria of minimum of six months membership under the RBS on the date of his/her enrollment”.

    From the above circular, it is made us clear that the Complainant joined the Company and enrolled as RBS as member and he left with more than 15 years of service, the conditions in the circular dated 11.9.1986 also fulfilled by the Complainant. In all the above referred circulars it contain that the benefit will be extended after 5 years of enrollment to RB Scheme. The requirement of minimum of 20 years of service has been superseded by its own circulars of the Opposite Parties. Apart from the above, the Opposite Party No.1 has extended benefits under RB Scheme to several employees who have not fulfilled the condition of 20 years of minimum service in the Company. Even the latest circular dated 9.10.1999 though, according to the Opposite Party No.1 it is only for fresh enrollment, but the criteria fixed is similar to the earlier circulars in order to facilitate the benefits to those who are members for more than 6 months of RBS.
    In the instant case after the retirement from the service to avail the benefits under the RB Scheme was refused by the Opposite Party No.1 by stating that the Complainant did not put in total 20 years of service has no bass and there is no condition precedent of 20 years of minimum service to avail the said benefit. By considering the above circulars, we are of the considered opinion that the refusal on the part of the Opposite Party No.1 is not justified and the Complainant is entitled for the RBS benefits and the Opposite Party No.1 is hereby directed to pay the RBS benefits to the Complainant immediately along with interest at the rate of 10% p.a. from the date of his first request i.e., 11.12.2006 till the date of payment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
    As far as Opposite Party No.2 is concerned, there is no deficiency of service on the part of the 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. Opposite Party No.1 is hereby directed to pay the Retirement Benefit Scheme benefits to the Complainant immediately along with interest at the rate of 10% p.a. from the date of his first request i.e., 11.12.2006 till the date of payment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
  • adminadmin Administrator
    edited September 2009
    Date of Filing:15.12.2008 Date of Order:30.04.2009 BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20 Dated: 30TH DAY OF APRIL 2009 PRESENT Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President. Smt. D. LEELAVATHI, M.A.LL.B, Member. Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member. COMPLAINT NO: 2696 OF 2008 Ashis Kumar, S/o Mukundan, R/at Prabhudas Nivas, Telephone Exchange Road, Madanayakanahalli, 18 K.M, Tumkur-Nelamangala Road, Bangalore-23. Complainant V/S The Branch Manager, The New India Assurance Company Ltd., II Floor, Shankar House, No.1, R.M.V Extension, Mekhri Circle, Bangalore-80. Opposite Party


    ORDER By the President Sri. S.S. Nagarale This is a complainant filed under Section 12 of the Consumer Protection Act, 1986 to direct the opposite party to pay Rs.1,35,503/- with interest and compensation. The brief facts of the case are that, the complainant has purchased a H.V.G Goods Carrier Vehicle of Eicher Motors bearing Chassis No.30 BC 4 A 001455, Engine No. E683 CD 4 A 0011574 under hire purchase agreement with M/s Bhairanandan Pagaria & Sons And it is still continued and the same was registered before the RTO and the vehicle numbered as KA-05-C-2316 and the vehicle was insured with the opposite party from the date of purchase till 13th February-2009. On 13/04/2008 the vehicle met with an accident at Palakkad Kerala and in the said accident the vehicle was severally damaged and immediately the complainant intimated to the opposite party about the accident. Later as per the advice of the opposite party a proper claim form was filled and submitted. The total repair charge is of Rs.1,95,503/- and the said amount claimed by the complainant from the opposite party. But after submitting the bills the opposite party has agreed to pay a sum of Rs.1,05,000/. In spite of that the opposite party has released only a sum of Rs.60,000/-. On enquiry the opposite party replied that, the gross vehicle weight is shown in the insurance certificate as 7,475 Kgs instead of 16,200 Kgs. In spite of collecting the entire amount towards the insurance policy the opposite parties have failed and neglected to pay the claimed amount of the complainant. The amount paid by the opposite party is highly arbitrary in nature.

    The complainant issued a notice on 07/11/2008 to the opposite party requesting them to pay the entire repair amount as per the claim made by the complainant under policy No.671602/31/07/01/00009494 and the same is rejected by the opposite parties. Hence, the complaint.


    2. Notice was issued to opposite parties. Opposite parties put in appearance through Advocate and defence version filed stating that, the issuance of the goods carrying commercial vehicle package policy bearing No.671602/31/07/01/00009494 covering the Eicher vehicle bearing No.KA-05-C-2316 for a sum of Rs.3,00,000/- for the period from 14/02/2008 to 13/02/2009. The vehicle was under hire purchase agreement with M/s Bhairandan Pagaria & Sons. The vehicle met with an accident on 13/04/2008 at 4-00 AM at Palakhad, Kerala. The complainant had incurred repair charges of Rs.1,95,503/- against the estimate of repairs at Rs.2,25,024/- and this opposite party has agreed to pay only a sum of Rs.1,05,000/-. The opposite party has settled the claim for Rs.60,000/- in full and final settlement of the claim for which the complainant has discharged the voucher. The dispute arose due to the carrying capacity of the said vehicle i.e., whether GVW is 7475 Kgs or 16,200 Kgs. The complainant by virtue of purchase of the said vehicle has approached this opposite party on 24/07/2007 to effect the transfer of policy in his favour and has submitted the relevant documents to the effect. The opposite party has passed the transfer endorsement No.671602/31/07/01/83000039 in favour of the complainant up to 13/02/2008. It is submitted that on the contrary it was the mistake on the part of the complainant who has stated that the GVW of the said vehicle is 7475 Kgs. The opposite party has collected the difference in premium of Rs.3,024/- and passed extra endorsement No.671602/31/07/01/83000102 dated 29/08/2008. It is true that they had paid Rs.60,000/- which is not highly arbitrary in nature. It is submitted that the claim was settled for Rs.60,000/- as against the net assessed liability of Rs.80,000/- as a non standard claim at 75% of the admitted liabilities for which the complainant has submitted his consent letter on 15/09/2008. The complainant caused legal notice on 04/11/2008 and the same was replied on 18/11/2008. There is no deficiency of service on the part of the opposite parties. For all these reasons stated above, the opposite parties are prayed to dismiss the complaint.


    3. Affidavit evidences of both the parties are filed. Arguments are heard.


    4. The points for consideration are:- 1. Whether there was any deficiency in service on the part of the opposite parties? 2. Whether the payment of claim amount on non standard basis by the opposite party is justified?


    REASONS




    5. It is an admitted case of the parties that the complainant has insured his vehicle No.KA-05-C-2316 with the opposite party. The opposite party by letter dated 18/11/2008 has stated that under policy the gross vehicle weight is shown as 7475 Kgs. There was claim for accidental damage and during survey it was noticed that correct gross weight of the vehicle is 16200 Kgs and not 7475 Kgs for which cover was taken. In view of the above claim is not payable under the policy. However, the claim was settled on non standard basis at 75% of the net liability. The opposite party has paid Rs.60,000/- to the complainant. The complainant has put up claim for Rs.1,95,503/-. The opposite party has committed mistake by stating that the gross vehicle weight was shown as 7475 Kgs in the policy. But in fact the policy has been corrected in respect of gross vehicle weight. The complainant has produced policy No.671602/31/07/01/00009494.

    As per this policy, policy issued date was 14/02/2008. Expiry date is 13/02/2009. Endorsement to this policy reads as under:- “Notwithstanding anything contained herein to the contrary, it is hereby declared and noted that the gross vehicle weight of the vehicle under the within mentioned policy should be read as “16200 KGS” and not unladen weight of “7475”. As mentioned in the policy. In consideration whereof an additional premium amount of Rs.3024/-(2691+333 ST) is hereby collected from the insured. All other terms and conditions remain unaltered”. 6. This endorsement made on the policy given effect from 14/02/2008 itself. This fact also has been mentioned in the policy issued by the opposite party. Admittedly the accident in question had taken place on 13/04/2008 that is after the correction of gross vehicle weight and endorsement issued by the opposite party.


    Therefore, the thinking of the opposite party that policy mentioned gross vehicle weight as 7475 Kgs is absolutely wrong. It is very unfortunate that the concerned officer or official who verified the documents had not noticed that gross weight of the vehicle had been corrected after collecting additional premium of Rs.3,024/- from the complainant and the company had issued endorsement to that effect and the endorsement has given effect from 14/02/2008 that is from the inception of the policy. The policy period was from 14/02/2008 to 13/02/2009.


    During this policy itself the accident had taken place. The settlement of claim by the opposite party on non standard basis is not proper and unjustified one. It is wholly unjustified and illegal to say that the gross weight of the vehicle is mentioned as 7475 Kgs but the correct fact is the gross vehicle weight was mentioned as 16200 Kgs in view of the endorsement and correction to the policy. With regards the claim put up by the complainant for Rs.1,95,503/- the complainant has produced bills of different garage and bills of spare parts purchased from different dealers. It may not be proper to direct the opposite party to pay Rs.1,95,503/- as per the claim based on the bills and vouchers produced by the complainant.


    But however the opposite party itself has produced final survey report of Surveyor/Loss Assessor. The Surveyor appointed by the opposite party himself has assessed the loss at Rs.98,427/- after less compulsory deduction and less salvage value. The Surveyor has stated in his report that survey was conducted along with the Divisional Manager, New India Assurance Company Ltd.,. The opposite party in all its fairness could have paid Rs.98,427/- to the complainant as per their own final survey report. The opposite party has given claim of Rs.60,000/- only.


    This is absolutely unfair and unreasonable and without any basis. The complainant is definitely entitled to be paid Rs.98,427/- as per the final survey report of Surveyor. However, taking into consideration of payment of Rs.60,000/- by the opposite party, the remaining amount of Rs.38,427/- requires to be paid by the opposite party to the complainant though not the claim of Rs.1,95,503/- put up by the complainant. I am of the opinion that, on the facts and circumstances of the case and taking into consideration of all the documents and final survey report it is fair, just and proper to direct the opposite party to pay balance amount of Rs.38,427/-. Since there is delay in settling the claim the complainant is also entitled for interest for the delayed payment at least from the date of final survey report i.e., from 11/06/2008. Granting interest at 12% p.a. for the delayed payment would be just, fair and reasonable. In the result, I proceed to pass the following:-


    ORDER



    7. The complaint is allowed. The opposite party is directed to pay Rs.38,427/- to the complainant along with interest at 12% p.a from 11/06/2008 till payment/realisation.

    8. The opposite party is also directed to pay Rs.3,000/- towards costs of the present proceedings to the complainant. 9. The opposite party is directed to comply the order within 30 days from the date of this order with intimation to this Forum.
  • adminadmin Administrator
    edited September 2009
    Mrs.N.Kavitha,
    W/o. J.Nithyanandam,
    C/o Stark Industries,
    7G,Kalapatti Road, Coimbatore-35 --- Complainant
    Vs.
    The New India Assurance Co.Ltd.
    11-19,20, Government Arts College Road,
    Coimbatore – 641018. --- Opposite Party

    This case coming on for final hearing before us on in the presence of M/s.M.Panchapakesan, P.Vijay Raghunath and Mani Advocates for complainant and of Sri.M.N.Manohar 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 Rs.42,000/- being the balance amount along with interest at 18%p.a., Rs.1,50,000 towards compensation for mental agony and hardship and to pay cost of the proceedings.
    The case of the complaint are as follows:
    1.[FONT=&quot] [/FONT]The Complainant and her family have been insured with the opposite party under mediclaim policy covering the medical expenses of herself, her husband N.Nithyanandam and two daughters N.Kriuthika and N.Rubika under Policy No.721209/48/85/78674 during the period 25.9.05 to 24.9.06. The complainant has duly paid all the premiums and she is covered for an hospitalization expenses to a tune of Rs.1,00,000 and her husband to a tune of Rs.1,00,000 and her two children for Rs.50,000 each. The complainant underwent a KTP Laser Stapedptomy on her right ear at Vikram Hospital, R.S.Puram, Coimbatore on 8.2.06, incurred an expenses of Rs.72,000 preferred a claim through the 3rd party administrator with all bills and supporting documents. But the complainant was paid only Rs.30,000. The complainant approached the Insurance Ombudsman, Chennai seeking payment of the balance sum of Rs.42,000. In the reply the opposite party contended that the medical insurance policy covers only necessary and reasonable amount of expenses and the charges of Vikram hospital are highly inflated. The opposite party is not a medical expert to decide the necessary treatment. The complainant is entitled to take appropriate treatment from the competent doctor. The complainant is a consumer and the opposite party is a service provider. The complainant has been put to great mental agony and financial constrain due to the negligent and careless handle of her claim by the opposite party. The services of the opposite party having been deficient and the complainant is liable to be compensated. Hence this complaint.

    The case of the Opposite parties are as follows:
    2. The complainant had taken a policy covering the risk period from 25.9.05 to 24.9.06 which is the 2nd year policy. The complainant preferred a claim for a sum of Rs.72,000 for the expenses incurred for which the complainant underwent a KTP Laser Stapedpdomy on her right ear at Vikram Hospital on 8.2.06.The company will pay necessary and reasonable amount of expenses as would fall under the different heads. The opposite party verified the amounts with a Hospital like KKR ENT hospital, Chennai, Ramakrishna Hospital and Kovai Medical Center Hospital which charges for the same ailment from Rs.30,750 to Rs.21,750. On the basis of this opposite party settled the claim at Rs.30,000. The opposite party is not entitled to file any case for the balance amount. He ought to have returned the amount if he was not satisfied with the amount. Therefore this cannot be termed as deficiency in service.
    3. The complainant and opposite party have filed Proof Affidavits along with documents Ex.A1 to A5 was marked on the side of the complainant and Ex.B1 was marked on the side of the opposite party.

    The point for consideration is
    1.[FONT=&quot] [/FONT]Whether the opposite party has committed deficiency in service?
    If so to what relief the complainant is entitled to?

    ISSUE 1:
    4. The complainant had taken a mediclaim policy covering the risk of the family during the year 2004 to 2005 and renewed his policy for the period from 2005 to 2006. During this period, the complainant underwent a KTP Laser Stepedotomy on her right ear on 8.2.06, after verifying the bills submitted by the complainant the opposite party has sanctioned a sum of Rs.30,000 only. The contention of the opposite party that the policy covers only reasonable and necessary expenses are unfounded and unsustainable.
    5. The case of the opposite party is after verifying the bills the opposite party sanctioned a sum of Rs.30,000 against the bills for Rs.72,000 which are necessary and reasonable expenses as per clause 1.2 of the policy conditions.
    6. As per clause 1.2 of the policy condition the complainant is entitled to claim a reasonable expenses only. Clause 1.2 says “In the event of any claim becoming admissible under this scheme, the company will pay to the insured person the amount of such expenses as would fall under different heads mentioned below and as are reasonably and necessarily incurred thereof by or on behalf of such insured person, but not exceeding the sum insured in anyone period of insurance”
    7. This was also informed by the opposite party to the complainant on 13.4.2008 through Ex.A3 by informing the reason for reduction in claim amount. They are
    1.[FONT=&quot] [/FONT]The operative clause of the mediclaim policy inter-alia states that the company will pay necessary and reasonable amount of expenses as would fall under different heads
    2.[FONT=&quot] [/FONT]In recent times, we find that the bills of Vikram hospital are highly inflated as compared to the charges of other hospitals for carrying out similar surgery. For example, the amount charged by other hospitals for similar surgery is as under:

    Madras ENT Hospital Rs.30,750
    KKR ENT Hospital, Chennai 30,000
    Ramakrishna Hospital, Coimbatore 21,000
    Kovai Medical Centre & hospitals 21,750

    8. On comparison of the charges levied by Vikram hospital with that of above hospital the charges of Vikram hospital are very much on the higher side in respect of Surgeon fees, assistant surgeon fees etc. So the opposite party has rightly come to the conclusion that the bills raised by Vikram hospital are exorbitant. Comparing the charges of other hospitals for similar treatment, For the above said reason the opposite party has settled the claim at Rs.30,000. The complainant after receiving the amount instead of returning the same preferred this complaint before this Forum. Therefore this cannot be termed as deficiency in service and the opposite party never committed deficiency in service as alleged by the complainant.

    9. In the result, this complaint is dismissed. No costs.
  • adminadmin Administrator
    edited September 2009
    Ellath Engineering Pvt. Ltd. Through its Mg. Director,
    Smt. Girija Baladevan,
    F-5, 4th Floor, Apna Bazar,
    Vasco-da-Gama, Goa ….. Complainant

    V/s.

    1.[FONT=&quot] [/FONT]New India Assurance Co. Ltd.,
    Through its Sr. Divisional Manager,
    Santa Palagia Building,
    1st Floor, Opp. Khalap Mansion,
    Vasco-da-Gama, Goa.

    2.[FONT=&quot] [/FONT]Manager,
    New India Assurance Co.Ltd.,
    Divisional Office,
    Santa Palagia Bldg.,
    1st Floor, Opp. Khalap Mansion,
    Vasco-da-Gama, Goa ….. Opposite Parties

    Advocate Shri G. Vijaychandran for the Complainant
    Advocate Shri Emerico Afonso for the O.Ps

    Dated: 30/04/2009
    O R D E R
    (Per Smt. Kala P. Dalal, Member)
    By this Order we shall dispose of the Complaint dated 17.12.2004 filed by the Complainant herein against the Opposite Parties (O.Ps.) herein U/s. 12 of the Consumer Protection Act, 1986.

    …2/-
    The brief facts of the case are as follows:
    [FONT=&quot] [/FONT]
    [FONT=&quot][FONT=&quot] [/FONT]I.[FONT=&quot] [/FONT][/FONT][FONT=&quot]That the Complainant is a Private Limited Company which is engaged in sub-marine works such as laying and burying of cables on the sea-bed, and the O.P is a subsidiary company of the General Insurance Corporation.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot][FONT=&quot] [/FONT]II.[FONT=&quot] [/FONT][/FONT][FONT=&quot]That the Complainant had undertaken the offshore cable deployment work of Bimbade point, Mangoor, Vasco-da gama, for the total cost of awarded work plus the cost of the cable was Rs. 3, 11, 12, 700/- (Rs. Three crores eleven lakhs twelve thousand and seven hundred only) and for insuring the said work and material, the Complainant approached the O.P for issuing a contractors all Risk Insurance Policy and paid a sum of Rs. 1, 96, 016/- (Rs one lakh ninety six thousand and sixteen only) on 18/12/2002 vide Cheque No. 635968 drawn on State Bank of India, Vasco.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot][FONT=&quot] [/FONT]III.[FONT=&quot] [/FONT][/FONT][FONT=&quot]The O.Ps issued a receipt towards the same confirming that a premium was received covering the risk for a sum insured of Rs. 3,11,12,700/- for a period of three months from 18/12/2002 towards the policy no. 141500/44/02/70001.[/FONT]

    [FONT=&quot] [/FONT]IV.[FONT=&quot] [/FONT]The Complainant commenced the cable deployments work under good faith. However when some of deployment difficulties were encountered at one of the ranges and on inquiry the Ops were giving evasive answers attributing the delay in issuance of policy.

    [FONT=&quot] [/FONT]V.[FONT=&quot] [/FONT]Further the O.P.s vide letter dated 18.02.2003 demanded from the Complainant an additional premium of Rs. 2,95,888/- which was untenable and hence the Complainant requested the O.P. to return the amount of Rs. 1,96,016/- collected as premium.
    [FONT=&quot] [/FONT]VI.[FONT=&quot] [/FONT]Since the O.P. did not insure the work and material, nor issued the Policy (the risk cover was for 3 months from 18.12.2002 upto 17.3.2003) nor refunded the money collected towards premium. Therefore the Complainant sent a legal notice dated 13.05.2003, to which the O.P.s not responded.

    [FONT=&quot] [/FONT]VII.[FONT=&quot] [/FONT]Based on the said cause of action the Complainant has filed the present complaint with the following reliefs:

    a)[FONT=&quot] [/FONT]That the Hon’ble Forum be pleased to direct the O.Ps to compensate the Complainant for the deficiency-in-service and the mental agony caused to them, by paying an amount equivalent to the premium collected i.e. Rs. 1,96,016/-.

    b)[FONT=&quot] [/FONT]That the Hon’ble Forum be pleased to direct the O.P. to refund the premium amount of Rs. 1,96,016/- collected under collection No. 1/2002/07452, together with interest @ 18% p.a. which comes to a total of Rs. 2,67,181.76 as on date of filing of this complaint. viz. 17.12.2004.

    c)[FONT=&quot] [/FONT]Such other and appropriate reliefs as the Hon’ble Forum may deem fit in the circumstances of the case.
    d)[FONT=&quot] [/FONT]Costs.

    The O.Ps field their Written Version dated 09.02.2005 inter-alia opposing the case of the Complainant on the following grounds:

    1.[FONT=&quot] [/FONT]That the complaint is frivolous, vexatious and does not disclose any cause of action or deficiency-in-service within the meaning of Consumer Protection Act and hence the complaint is liable to be dismissed.

    2.[FONT=&quot] [/FONT]The O.P.s allege that though the validity of the policy was from 18.12.2002 to 17.03.2003 or the completion of the project
    …4/-
    whichever is earlier, there has been no claim whatsoever by the Complainant during the policy period and as such there is no question of any deficiency-in-service by the O.Ps.

    3.[FONT=&quot] [/FONT]The O.Ps further allege that the Complainant enjoyed the Insurance Cover for damage to material during the laying of under water cable for the period from 18.12.2002 to 17.03.2003, and as such refund after enjoying the insurance cover is not permissible under Insurance laws, and hence is not liable to refund of the Insurance premium and hence prayed for the dismissal of the complaint with compensatory costs.

    On perusal of the record, pleadings, Affidavitory evidence of both the parties and the written submissions, we now proceed to examine the issues arising out of the facts and circumstances of the present case:

    1)[FONT=&quot] [/FONT]There is no dispute as to the fact that the Complainant has paid the Insurance Premium amount under Policy No.141500/44/02/70001 and the O.Ps have not issued the policy documents for the sum insured. The Complainant has produced all the relevant documents pertaining to the payment of Insurance Premium and also the legal notice dated 13.05.2003.

    2)[FONT=&quot] [/FONT]Even though it is alleged by the O.Ps that they issued a letter holding the Complainant covered for the damages to material whilst laying the cable, we do not agree with this fact, that only issuing the letter of confirmation will be equivalent to issuing policy documents. Moreover the O.Ps instead of issuing policy documents pertaining to premium already paid by the Complainant preferred to demand from the Complainant an additional premium of Rs. 2,95,888/- which itself can be attributed as deficiency-in-service on their part.

    3)[FONT=&quot] [/FONT]The Complainant has stated at para no.6 of his Affidavit-in-evidence that “I say that assured by the said letter, we commenced
    …5/-
    the cable deployment work under good faith. The work covered three ranges viz. SS, MCMV and AR. Deployment at SS Range was completed. However, when some deployment difficulties were encountered at the MCMV Range and enquiries were made as to the Insurance Cover, the O.P. was giving evasive answers attributing the delay in issuance of policy to non-receipt of the same from the Mumbai Office.” This itself proves that they are entitled to the reimbursement of premium amount collected against which no policy document was issued and so no risk was covered.

    4)[FONT=&quot] [/FONT]Concerning the interest of 18% claimed by the Complainant it is our opinion that 12% interest would be just and proper and would be effective from the date of filing the claim. Also in our opinion a compensation of Rs. 10,000/- should meet the ends of justice.

    Subject to our findings as above, we partly allow the complaint and pass the following Order:
    O R D E R

    It is hereby Ordered that the O.Ps herein are directed to pay to the Complainant the amount of Rs. 1,96,016/- (Rupees one lakh ninety six thousand sixteen only) with interest at the rate of 12% per annum from the date of filing the claim. The O.Ps are also directed to pay to the Complainant compensation of Rs. 10,000/- (Rupees ten thousand only). There shall be no order as to costs. The aforesaid directions shall be complied with by the O.Ps within 30 days from the date of this Order .
  • adminadmin Administrator
    edited September 2009
    Subodh Desai S/o late Shyamal jee Desai
    R/o Plot No.-12, Co-operative Colony, B.S.City.
    Versus
    1.Divisional Manager, the New India Assurance Co. Ltd.
    C-27, City Centre, 1st floor, Sector-IV, B.S.City.
    2.M.D. Bokaro Steel Plant, Bokaro Steel City.
    Before-
    S.M.Alam, President
    Vijay Bahadur Singh, Member
    Shabnam Praveen, Member

    Date of Judgment-: 12 May, 2009
    Date of case filing-: 24 August, 2007
    -: Judgment:-
    Complainant has filed this case against the opposite parties for payment of Rs. 36249.41 besides Rs. 15000/- as compensation and Rs. 3000/- for cost of litigation to him.



    2 The case of the complainant in short is that the complainant is a Contractor of Labour supply of Bokaro Steel City, Bokaro. The complainant has got the labours insured under the policy accordingly the complainant has insured his two labours. The opposite party after insurance vide policy No. 540400/41/06/01/00000553 issued certificate of policy against the premium of Rs. 1439/- Plus service tax Rs. 176/- which is valid from 22.11.2006 to 21.02.2007. On 28.11.2006 work at B.S.L. was on progress, in the mean time one labour namely Uday Singh met with an accident in course of his duty, as such he was brought to B.G.H. where he was declared dead. The complainant received a letter on 07.12.2006 that according to Workman Compensation Act. a sum of Rs. 258462.41 sanctioned in favour of the wife of the deceased. The complainant was asked by the opposite party No.2 to deposit the said amount in the office of compensation Officer cum Deputy Labour Commissioner, Bokaro. The complainant on 18.12.2006 issued a cheque vide cheque No. 940189 worth Rs. 258463/- in favour of the D.L.C. Bokaro and deposited the same in the office of D.L.C. Bokaro on 19.12.2006 and got the receipt. The complainant submitted his claim in the office of opposite party No.1 in connection with letter dated 07.12.2006 through which a sum of Rs. 258262/- was to be paid to the deceased wife. However after 7 months on 06.07.2007 the complainant received a cheque No. 012093 of Rs. 222113/- from insurance co. mentioning therein that the said amount is full and final against the claim of the complainant. The complainant surprised to receive the said cheque as because the B.S.L. had directed to deposited Rs. 258461/- and the said amount was to be paid by the opposite party No.1 and as such the complainant contacted the opposite party No.1 but he was told that according to assessment of opposite party No.1 he paid full and final settlement vide cheque No.012093 and now the opposite party No.1 will not get any more, hence the complainant filed the present case for the redressal of his grievances against the insurance co. (o.p.no.1).



    3 After issuance of notices, both opposite parties have appeared and filed their separate written statement. The written statement of the opposite party No.2has submitted that the complainant is a contractor of Labour supplier and the deceased was insured with the opposite party No.1. Opposite party No.2 also admitted that deceased Uday Singh was working under M/s Subodh Desai and on 28.11.2006 he met with an accident during the course of discharge of his duty and the same day he died, so far other part of the submission of the complaints are concerned. The opposite party no.2 also admitted them.



    4 The written statement of the opposite party No.1 is that the complainant has taken workman compensation policy of his workman vide policy No. 540400/41/06/01/00000553 which was effective from 22.11.2006 to 21.02.2007. The opposite party No.1 admits that after investigation by an independent surveyor deputed by the Insurance Co. The case of the Uday Singh was found correct. The complainant claimed the compensation amount from this opposite party to the tune of Rs. 258463/- which is exorbitant and not legally justified. Under workman compensation Act. 1923 the complainant has computed the compensation amount taking the duty of workman as 30 days instead of 26 days as mention in Muster Roll issued by Bokaro Steel Plant. As per Muster Roll the working day was only 6 day weekly and one day was holiday hence the 26 days in a month were working day as such the opposite party insurance co. has calculated the loss on 26th days basis. Rs. 222113/- as full and final compensation amount and issued a cheque for same amount and sent to the insured by Registered Post and the same has been accepted as full and final settlement. Therefore, the claim of the complainant against this opposite party is entirely false and baseless and is fit to be dismissed. Under facts and circumstances there is no deficiency in service on the part of the insurance co. as because the insurance co. has already paid the actual amount to the complainant insured, hence the present complaint case is not legally maintainable and the complainant is not entitled to get any relief as claimed against this opposite party.



    5 perused the case record and documents filed on behalf of the parties. From the perusal of record it appears that deceased Uday Singh was unskilled contractual labour working under M/s Subodh Desai and while he was discharging his duty on 28.11.2006 he met with an accident. He was brought to B.G.H. where he was declared dead. The opposite party No.2 directed the complainant to deposit a sum of Rs. 258463/- in office of Deputy Labour Commissioner cum Compensation Officer, Bokaro to be paid to the widow of deceased Uday Singh. Accordingly the complainant deposited the said amount through a cheque in the office of D.L.C. Bokaro. The complainant, thereafter, submitted claim with the opposite party No.1 for payment of claim amount worth Rs. 258463/- but the opposite party No.1 paid only 222113/- as full and final settlement on the ground that as per the muster roll of the contractual labour only 6 days in a week are working days, as such instead of 30 days in a month, there is 26 days.



    6 We, therefore, conclude that the opposite party No.1 insurance co. has to pay the entire amount which had been paid by the complainant under workman compensation Act. The Insurance co. cannot escape from its liability. Therefore, we hold the insurance co. negligent and deficient in service towards the complainant; hence the insurance co. is liable to pay the remaining amount of Rs. 36249.41 to the complainant.



    7 Under the facts and circumstances of the case, the opposite party No.1 Divisional Manager, New India Assurance Co. Ltd.C-27, City Centre, 1st floor, sector-IV, B.S.City is directed to pay a sum of Rs. 36249.41 (Rupees thirty six thousand two hundred forty nine and forty one paisa) only within 30 days from the date of this order. The opposite party is further directed to pay Rs. 1000/- (Rupees one thousand) only as compensation to the complainant within 30 days from the date of this order.
  • adminadmin Administrator
    edited September 2009
    1. Smt. Minati Sarkar,
    Wife of Late Jiban Kumar Sarkar,
    2. Sri Jayanta Sarkar,
    Son of Late Jiban Kumar Sarkar,
    3. Smt. Jayashree Sarkar,
    Daughther of Late Jiban Kumar Sarkar,
    4. Smt. Satadal Sarkar,
    Wife of Late Nagendra Nath Sarkar,

    All are reside at the Village of Sudarshanpur,
    Post Office and Police Station of Raiganj
    and in the District of Uttar Dinajpur. Complainants.

    versus

    1. The New India Assurance Company Limited,
    Represented by the Divisional Manager,
    Berhampore Divisional Office,
    37 A, R. N. Tagore Road,
    Berhampore, District – Murshidabad. Opposite Party.
    Judgment
    Date: 20.05.2009.

    This Case arises out of a petition of complaint filed Under Section 12 of the Consumer Protection Act, 1986 by the complainants Smt. Minati Sarkar and three others on 03.10.2007 against the opposite party, The New India Assurance Company Limited, Berhampore Division at Murshidabad for passing an order for death claim and compensation as per status and income of the deceased at the tune of Rs.7,50,000.00; by directing the opposite party to pay the amount as claimed in favour of the complainants and any other relief or relives as the Forum think fit and proper.

    The complaint story in brief is that the complainant Nos. 1 to 4 are the legal heirs and successors of Late Jiban Kumar Sarkar, who had a private car (TATA Indica) bearing Registration No. WB / 66D – 9024. This vehicle was insured with the opposite party vide policy No. 512901/ 31/ 06/ 01/ 00006176 valid from 17.08.2006 to 16.08.2007.

    On 05.12.2006 when Jiban Kumar Sarkar and others were proceeding towards Siliguri by the ill-fated car, he mate with an accident on NH – 31. As a result Jiban Sarkar fatal injuries, which were the ultimate causes of his death. The car in question was being driven by his paid driver at the material point of time. He had a monthly earning of Rs.9,000.00 from his business.

    After death of Jiban Sarkar, complainant No. 1, who happens to be the wife of the deceased, submitted a claim before the opposite party/ insurer, but, the opposite party/ insurer did not realize the claim so she has come along with her children before this Forum for redress.

    Opposite party/ insurer has contested the complaint by filing a written version. It has been alleged the deceased was the First Party to the insurer contract as the owner of the said vehicle. The policy was not insured for himself and no amount was paid as premium on this account. So the claim made by the complainant is totally out of the subject matter of the policy contract. Deceased not a consumer at all of the benefits provided by the policy in question. Further at the material point of time the vehicle was driven by his paid driver and not by the owner. And this driver had no valid Driving License at the material point of time. The opposite party has also denied that there was deficiency in service on his part. At last it is submitted by the opposite party/ insurer that the complaint be dismissed with cost.

    To prove the case, complainants have filed some documents, namely Certified Copy of the F.I.R. of the accident of which the deceased, Jiban Sarkar was the victim; Certified Copy of P.M. Report of the deceased Jiban Kumar Sarkar; copy of the policy in question; Certified Copy of the Charge Sheet and Certificate of Registration Book of the relevant vehicle.

    Opposite party/ insurer on the other hand has filed the Certified Copy of the policy in question.
    Decisions with reasons:

    There is no dispute to the fact that deceased Jiban Kumar Sarkar was a victim of a motor accident. It is also not disputed the vehicle by which he was traveling on the material point of time belong to him. It is further admitted that the vehicle at the material point of time was insured with the opposite party/ insurance company. But what is disputed is the entitlement of the complainant to any claim on the death of the deceased Jiban Kumar Sarkar by virtue of the said motor accident. It has been argued by Ld. Lawyer for the opposite party/ insurer that the insurance policy in question does not cover the risk of death of the owner, because he is a First Party of the contract of the policy where as the insurance company is the Second Party.

    Ld. Lawyer for the complainants submits, on the other hand that there is an item in the schedule describing the scope of coverage of the risk. One of the items is very key point to the present case. He draws the attention of this Forum to the item “Compulsory Premium to owner-cum-driver” he does tress on this particular item and according to him the claim of the complainants comes within the purview. But Ld. Lawyer of the opposite party strongly differs to the opinion expressed by Ld. Lawyer for the complainants. In support of his argument he refers number of decisions that include a 2007 AIR SCW 6866, 2007ACJ 821 SC and lastly 2007 ACJ 818 SC. Upon perusing all these decisions one fact does clearly appeared that the scope under Motor Vehicles Act and Consumer Protection Act is different the claim which is to be filed under Motor Vehicles Act shall be investigated by the tribunal as stipulated in the said Act. But where there is no such mention and the matter is involved with a motor accident case, the jurisdiction of Consumer Protection Act will come. In this context we mention here the decision as referred to by Ld. Lawyer for the opposite party and reported in 2007 AIR SCW 6866. It has been observed by the Apex Court that where an Insurance Company may be held to liable to indemnify the owner for the purpose of meeting the object and purport of the provisions of the Motor Vehicle Act, the same may not necessarily in a case where an Insurance Company may refuse to compensate the owner of the vehicle towards his own loss. A distinction must be borne in mind regard in the statutory liability of the insurer visa-a-vis the purport an object sought to be archive by beneficent legislation before a Forum constitute under the Motor Vehicle Act and enforcement of a contract qua contract before a Consumer Forum. So, it is palpably clear where the jurisdiction of the tribunal constituted under the M.V. Act ends the jurisdiction of the Forum comes into operation. As the purpose of the constitution of the Forum is to give relief to the redressed person as leniently as possible the benefit provided by this Act can not be denied to an agreed person. As per the contractual conditions of the policy in question owner of the vehicle in question is also a beneficiary and on his death due to accident his heirs, who are the present complainants here are entitled to enjoy the same benefit. So, owner has a place in the schedule of the policy and according to this schedule owner is entitled to claim Rs. 2,00,000.00 (rupees two lakhs only) as compensation to the maximum against the opposite party/ insurer. So, the case is dispose of with the following order: -

    That the complaint case No. 51/2007 is allowed in part on contest without cost against the opposite party/ insurer, The New India Assurance Company Limited.

    Complainant will get an award of Rs.2,00,000.00 (rupees two lacs) only.

    The opposite party/ insurer shall issue individual Account Payee Chaque of Rs.50,000.00 (rupees fifty thousand only) each in the name of the four complainants within one month from the date of this order, failing which the complainants are in liberty to put the award in execution.
  • adminadmin Administrator
    edited September 2009
    Shri Sham Lal son of Shri Babu Ram resident of village Banal PO Amroh Tehsil and District Hamirpur (HP)

    Complainant
    Versus

    The New India Assurance Company, Kotwali Bazar, Dharamshala, District Kangra (HP) through its Branch Manager.

    Opposite party


    Briefly stated, the case of the complainant is that he is a registered owner of vehicle TATA LPT 909 (hereinafter referred to as vehicle) bearing registration No.HP-67-0864, which he got insured with the opposite party. It is asserted that on 21.8.2006 during the subsistence of the Insurance Policy the said vehicle met with an accident at Chaunala ( Shrantha Sur) Tehsil Tikker P.S. Rohru, District Shimla. At the relevant time, the vehicle was being driven by the driver namely Sh. Tara Chand son of Shri Babu Ram, resident of village Banal PO Amroh Tehsil and District Hamirpur. Intimation had also been given to the opposite party and that after completing necessary formalities, he (complainant) had lodged his claim to the tune of Rs. 1,25,000/- before the opposite party, but it refused to pay the same. Thus, the action of the opposite party in repudiating the claim of the complainant is nothing but great deficiency in service. 2. The case of the complainant has been resisted and contested by the opposite party by asserting that on receipt of the claim of the complainant, an independent surveyor was appointed who assessed the loss to the vehicle to the tune of Rs. 25165-25 as net loss subject to the terms and conditions of the insurance policy. It is asserted that despite various letters written to the complainant, he had not supplied the copy of registration certificate, fitness certificate, route permit etc. to the opposite party, and for this reason, his claim could not be settled. It has been denied that the complainant had spent a sum of Rs.1,25,000/- on repair of the vehicle.
    3. Both the parties adduced evidence by way of affidavits and annexures in support of their contentions. After hearing the learned counsel for the parties, the following points arise for determination:-
    1. Whether O.P committed deficiency in service, as alleged? OPC
    3. Final order
    4. For the reasons to be recorded hereinafter while discussing points for determination, our findings on the aforesaid points are as under:-
    Point No.: Decided accordingly.
    Final order: The complaint is disposed of accordingly, as pre operative part of the order

    REASONS FOR FINDINGS
    Point No.1:
    5. Learned counsel for the complainant has argued that the opposite party has failed to settle his genuine claim and thus committed deficiency in service.
    6. On the other hand, learned counsel for the opposite party has argued that the complainant has failed to supply the requisite documents i.e. copy of registration certificate, route permit of the vehicle etc. to the opposite party, and for this reason, his claim could not be settled. However, the opposite party has assessed the loss of the complainant at Rs.25165-25 paise by appointing independent surveyor. Thus, there is no deficiency in service on the part of the opposite party.
    7. From the material on record, it stands established that the vehicle of the complainant during the subsistence of the Insurance Policy had met with an accident. It also stands proved that the Surveyor of the opposite party, vide his detailed report had assessed the loss at Rs.25165-25 paise. We are of the view that the opposite party was under legal obligation to pay the assessed amount to the complainant. Since, the opposite party is providing public utility services; it is not expected from it to deny the genuine claim of the complainant.
    8. The plea of the opposite party is that the complainant has not supplied the copy of registration certificate and route permit of the vehicle, and for this reason, his claim could not be settled. On record, the complainant has also not placed on record the copies of said documents. In view of the said backdrop, we are of the view that ends of justice will be met in case the opposite party is directed to pay the assessed amount to the complainant within 30 days after the supply of copy of registration certificate and route permit of the vehicle to the opposite party.
    9. So far as the contention of the complainant that a sum of Rs.1,25,000/- had been spent by him on the repair of the vehicle is concerned, the same is rejected being devoid of any force. The complainant has not placed on record, any detailed report of independent Surveyor to prove his such defence. On the contrary the opposite party has placed on record, report of independent Surveyor Annexure OP-2, who vide his detailed report has assessed the loss at Rs.25165-25 paise. The said report of the Surveyor remains un-rebutted on record. Thus, from the material on record, it stands established that the complainant has suffered a loss of Rs. 25165-25. Hence, point No.1 is disposed of accordingly.
    10. No other point argued or urged before us.
    11. In view of our findings on point no.1 above, the complaint is disposed of accordingly. The opposite party is directed to pay the assessed amount to the complainant within 30 days after the supply of copy of registration certificate and route permit by the complainant. In the peculiar facts and circumstances of the case, there is no order as to cost and compensation.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    Shri Satish Kumar S/O Shri Ram Narayan, Resident of Village Shalog, P.O. Sayari, Tehsil Kandaghat, District Solan, H.P.



    … Complainant

    Versus



    The Branch Manager,

    The New India Assurance Company Limited,

    Bhagra Niwas, The Mall, Shimla-171001.





    …Opposite Party.



    For the complainant: Mr. L.S. Thakur, Advocate



    For the Opposite Party: Mr. Ratish Sharma, Advocate.



    O R D E R:



    Pritam Singh (District Judge) President:- This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The brief facts of the complaint are that the complainant is owner of Taxi Van bearing registration No.HP-02-0127 which was duly insured with the OP-Company vide insurance policy w.e.f. 15.12.2006 to 14.12.2007, for a sum of Rs.1,33,700/-. It is further case of the complainant that the aforesaid taxi met with a fatal accident on 12.02.2007 during the currency of the aforesaid insurance policy causing extensive loss to vehicle. That the factum of the accident was reported to the Police Station Kandaghat and intimation regarding the accident was also given to the OP-Company Thereafter, the complainant lodged the insurance claim with the OP-Company. But, the OP-Company instead of settling his genuine insurance claim, repudiated the same on frivolous ground. Hence, felling aggrieved and dissatisfied by the act of the OP-Company, the complainant perforce filed this complaint against OP-Company.




    2. The OP-Company while filing reply took some preliminary objections regarding maintainability of the complaint, invalidity of the driving licence, etc. On merits, it is alleged by the OP-Company that the driver Rakesh Kumar who was driving the taxi at the time of the accident was not having valid and effective driving licence as the driving licence possessed by the driver on verification was found not having endorsement of LTV. Hence, the insurance claim was rightly repudiated and there being no deficiency in service, the complaint is sought to be dismissed. Thereafter the parties led oral and documentary evidence in support of their claim/counter claim.



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



    4. Undisputedly, the vehicle in question, i.e. taxi bearing registration No. HP-02-0127 owned by the complainant was duly insured with the OP-Company and the insurance policy was valid from 15.12.2006 to 14.12.2007. Undisputed facts are that the vehicle in question met with an accident on 12.02.2007 during the currency of the insurance policy and it sustained extensive damages. The complainant accordingly sent intimation in this behalf to the OP-Company and the insurance claim was later on preferred, but instead of settling the insurance claim by the OP-Company, it was repudiated on frivolous ground.



    5. However, according to the OP-Company driver Shri Rakesh Kumar who was driving the vehicle in question at the time of the accident was not having valid and effective driving licence as it was not duly endorsed for LTV at the relevant time and as such it was breach of terms of insurance contract, hence the insurance claim was rightly repudiated by them.



    6. In this connection, it may be stated that the complainant has relied upon the copy of the route permit, dated 03.01.2004 issued for plying said vehicle. The parties have also relied upon the copy of the driving licence of the driver Rakesh Kumar. As per the contents of this driving licence, it was issued in the first instance for LMV on 30.09.2003 up to 04.05.2027 and subsequently it was endorsed for LTV w.e.f. 02.04.2003. As per the Motor Vehicle Rules, the driving licence endorsed for transport vehicle is admittedly endorsed only for three years at a time. Therefore, as per this endorsement, this driving licence was endorsed for LTV valid from 02.04.2003 up to 01.04.2006. Further, as per the contents of this driving licence endorsement for LTV was subsequently made from 24.03.2007 upto 23.03.2010, whereas the accident of the vehicle in question took place on 12.02.2007. Therefore, during the period of accident, the driving licence of driver Shri Rakesh Kumar was not endorsed for LTV and as such he was not authorized to driver the vehicle in question it being transport vehicle/taxi.




    7. Moreover, the OP-Company has placed on record the report of the Investigator, Shri Kamal Narian, (Retd.) (HPS) Annexure R-7 who had been deputed by the OP-Company to verify the validity of the driving licence of the driver Rakesh Kumar who vide this report reported that this driving licence of driver Rakesh Kumar was endorsed for the first time for LTV on 02.04.2003 and thereafter this endorsement was renewed for LTV on 24.03.2007 to 23.03.2010. Therefore, as per the report of the Investigator, the driving licence in question was not endorsed for LTV on 12.02.2007 the date of accident. As such, the driver was not authorized to drive the vehicle in question being LTV at the relevant time.



    8. Therefore, from the aforesaid cogent documentary evidence adduced on record by the parties, it is manifest and clear that the driver Rakesh Kumar was not having valid driving licence to drive the vehicle in question at the time of the accident. The law is well settled if the driver is holding driving licence to drive LMV and is not entitled to drive LTV as endorsement for LTV required under section 3 of the Motor Vehicle Act is not made in the driving licence, it being a breach of condition of insurance policy, the insurance company is not liable to indemnify the insured in case of loss sustained by the insured vehicle in accident. Moreover, if the driver was not duly licensed as he had not renewed the driving licence within 30 days as required under section 15 of Motor Vehicles Act. In such case licence is effective only from the date when actual renewal granted and insurance company is justified in repudiating their liability; because if no application for renewal of the driving licence is made within the stipulated period of 30 days and the driving licence is renewed after the expiry of stipulated period of 30 days, the driving licence cannot be effective retrospectively rather it would be effective prospectively from its renewal. As such it being breach of the insurance policy, no liability can be fastened upon the insurance company to indemnify the insured for the loss caused to the insured vehicle in accident. On this point we are supported by the following case law authorities:-

    i) I (2008) CPJ 1 (SC) Hon’ble Supreme Court of India, in case New India Assurance Co. Ltd. Versus Prabhu Lal.



    ii) II (2006) CPJ-309 N.C. in case Thomas Mathew versus Oriental Insurance Co. Ltd.



    iii) II (2006) CPJ 290 Hon’ble HP State Consumer Commission, in case Todar Mal Verma versus United India Insurance Company Ltd.





    9. In view of the above discussion, the complaint merits dismissal and it is ordered accordingly. No order as to the costs.
  • SidhantSidhant Moderator
    edited September 2009
    Smt.P.Anuradha Rao, W/o. Atchyuta Rao,
    Aged about 41 years, Occ: Business,
    R/o. Flat No.205, Kubera Towers,
    Narayanaguda, Hyderabad. ……Complainant

    And
    1. The New India Assurance Co., Ltd.,
    New India Assurance building,
    87, M.G. Road, Fort, Mumbai – 400001
    2. The New India Assurance Co., Ltd.,
    Divisional Agent Branch, 9th Floor
    Parishrama Bhavan, Basheerbagh,
    Hyderabad – 500004.
    3. M/s. Alankit Health Care Ltd.,
    1-8-54/1/4, 1st Floor, Prnderghost Road,
    Near Food World, Secunderabad – 500023. ….. Opposite Parties


    O R D E R


    1. This is a Complaint filed by the Complainant under section 12 of C.P. Act, 1986, seeking a direction against opposite parties to pay a sum of Rs.42,897/-being the Mediclaim amount, for damages of Rs.1,50,000/- for deficiency in service and for compensation of Rs.1,50,000/- towards physical and mental agony.


    2. The case of the complainant as set out in the complaint in brief is that she had obtained a Mediclaim Policy on 04-09-2007 from opposite parties No.1 & 2 through opposite party No.3 by paying the premium amount of Rs.3,915/- covering the period from 04-09-2007 to 03-09-2008.



    3. While so, she was admitted in the hospital on 25-09-2007 with severe abdominal pain and was adviced to under go surgery for Cholyestectomy on emergency basis. Accordingly, she underwent the surgery on 28-09-2007. The opposite parties were informed the same to opposite party No.3. She was discharged on 01-10-2007 after payment of the bill amount of Rs.42,897/-.


    4. The complainant further pleaded that inspite of repeated reminders and a legal notice, the opposite parties failed to respond to the claim made by the complainant. It amounts to unfair trade practice and deficiency in service. Hence the complaint.


    5. Opposite party No.3 remained exparte.


    6. Opposite party Nos. 1 & 2 filed a common counter. They admitted issuing of the policy to the complainant. It is pleaded that the complainant suppressed the material fact that she was suffering from stones in gall bladder. However, under the policy, the complainant is not covered. As per clause-4.3, gall bladder stone removal is excluded during the first 2 years of the operation of the policy. So, she is not entitled for the mediclaim amount or the damages or compensation.


    7. The complainant filed a reply affidavit stating that as per user guide book issued by Insurance Regulatory Development Authority [IRDA], the policy holders of North Eastern States are not covered for one year for the Cholyestectomy [removal of gall bladder for gall stones]. According to the complainant she being a South Indian is covered under the policy.


    7. The points that arise for consideration are:-


    1. Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties? and if so, whether the complainant is entitled for reimbursement of the mediclaim amount and also the compensation as claimed for?


    2. To what relief?


    9. Point No.I:- To substantiate her case, the complainant has chosen to file her evidence affidavit and also relied on Exs.A1 to A16. On the other hand, the opposite parties have chosen to file the evidence affidavit of the Administrative Officer of opposite party No.2 and relied on Ex.B1. Both sides filed separate memos to treat their pleadings and evidence affidavit as their written arguments.



    10. There is no dispute that the complainant took a mediclaim policy from opposite party Nos.1 & 2 through opposite party No.3 by paying the necessary premium amount for the period from 04-09-2007 to 03-09-2008. There is also no dispute that the complainant was admitted in a Specialty Hospital on 25-09-2007 and underwent a surgery called Cholyestectomy [removal of gall bladder for gall stones] on 28-09-2007.

    The documents relied on by her are not in dispute. All her documents disclose that she took the policy by paying the necessary premium and underwent surgery for removal of gall bladder stones 3 weeks later. She paid the bill amount of Rs.42,897/-. The dispute is with regard to the entitlement of the complainant for reimbursement of the amount spent. The opposite parties raised 2 objections viz., that the complainant suppressed the fact of her suffering from the disease while taking the policy and secondly that as per clause – 4.3 of the policy conditions enclosed to Ex.B1, she is not entitled for reimbursement for a period of 2 years for the stones in the gall bladder. According to the opposite parties the waiting period for the disease of stones in the gall bladder is 2 years.



    11. The Learned Counsel for the complainant, relying on Ex.A16, the user guide book as on 01-06-2007, issued by opposite party No.3, contended that the policy holders of North Eastern States alone are not covered for the first year in respect of the disease of stones in the gall bladder. It is the contention of the complainant that she is a South Indian and as such she is covered by the policy for Medical reimbursement.


    12. As seen from the note in Ex.A16, the user guide book issued by IRDA, for the first year, the policy holders of North Eastern States are not covered by Cholyestectomy etc.,. It means to say that the policy holders of North Eastern States are covered by Cholyestectomy ever since after the first year. It does not mean that the policy holders of South India are covered by Cholyestectomy even during the first year of the policy.

    As per clause-4.3 of the policy conditions, the waiting period for stones in gall bladder is 2 years [vide clause-4.3 Sl.No.17]. This clause makes it clear that the policy holders complaining of stones in the gall bladder and those who undergo Cholyestectomy [removal of gall bladder for gall stones] are excluded from making the claim for 2 years from the time of inception of the policy. So, the complainant is not entitled to claim the mediclaim amount.


    13. In the light of the finding in para supra, it is not necessary to discuss the point raised by the opposite party regarding suppression of the disease by the complainant, while taking the policy. However, since that such an objection is also raised, we feel it ‘just’ to answer this objection also. The initial burden is on the complainant to establish that the complainant was suffering from the disease in question as on the date of taking of the policy and that she deliberately suppressed the same.

    They have not chosen to file any evidence affidavit or any other documents to substantiate their contention. In other words the opposite parties failed to discharge the initial burden laid on them. So, it cannot be said that the complainant, knowing fully well that she was suffering from the disease of stones in the gall bladder, suppressed the same while taking the policy.


    14. In the light of the discussion in paras supra, we hold that the complainant is not entitled for the amounts claimed.


    15. Point No.II :- In the result, the complaint is dismissed without costs.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    Gurram Madhusudhan S/o Narayana, Age: 41 years,

    Occ: Business, R/o R.T.C.Colony, Nalgonda Town and District.

    …Complainant.

    1) M/s Arunachala Logistics (P) Limited, represented by its

    M.D. V.V.Naidu, 8-3-961/B, 4th Floor, SBI Buildings,

    Srinagar Colony Main Road, Hyderabad-500 034.



    2) The New India Assurance Company Limited, Parklane Divisional

    Office-612400, 205, 206 and 207, 2nd Floor, Chenoy Trade Centre,

    Parklane, Secunderabad-500 003.
    …Opposite Parties.

    bearing No.AP-10E-9981. On 02-11-2008 while he was returning from Hyderabad to Nalgonda, when he reached Pedda Kaparthi Village at about 5-30 p.m., on his side with minimum speed, Opposite Party No.1 Lorry bearing No.AP-09TA-1191 with high speed and rash and negligent manner came his back side and hit his Maruthi Van bearing No.AP-10E-9981. Due to that, the back portion of his Maruthi Van badly damaged. Soon after the complainant filed a complaint before the Police Station, Chityal and they conducted Panchanama on 02-11-2008 under section 184 of M.V.Act, vide Cr.No.190 of 2008.
    The complainant stated that due to rash and negligent driving of Opposite Party No.1 driver his Maruthi Van was badly damaged. Complainant got repaired his Van and he incurred an expenditure of Rs.8,265/- for purchase of spare parts and also paid an amount of Rs.5,650/- for repairing charges. So totally he incurred an amount of Rs.13,915/-. The complainant came to know that the Opposite Party No.1 insured his vehicle with Opposite Party No.2, vide Policy No.612400/31/08/01/00000288, valid from 24-4-2008 to 23-4-2009. So, both the Opposite Parties are jointly and severally liable for the loss sustained by the complainant.

    The complainant got issued a notice dated 29-12-2008 to the Opposite Parties demanding to pay Rs.13,915/- towards damages caused to the Maruthi Van. The Opposite Parties neither replied to the notice nor they paid any amount. So, the Opposite Parties committed deficit of services to the complainant.
    Contd…3/-
    - 3 -

    The complainant prays that the Hon’ble Forum may be pleased to direct the Opposite Parties to pay an amount of Rs.13,915/- and Rs.5,000/- towards expenditure and mental agony and costs of the complaint.

    2. Opposite Parties No.1 and 2 are called set exparte.

    3. The complainant filed his affidavit and produced the documents which are marked as Exs.A-1 to A-11.

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

    1) Whether the complainant is entitled to the amounts claimed?

    2) To what relief the complainant is entitled?

    5. POINT No.1: It is not in dispute that the complainant’ vehicle was damaged due to accident with Opposite Party No.1 Lorry bearing No.AP-09TA-1191. Due to the accident, the back portion of Maruthi Van bearing No.AP-10E-9981 was badly damaged. Complainant filed a complaint before Police Station, Chityal and they conducted panchanama on 2-11-2008, U/S 184 of M.V.Act, vide Cr.No.190/2008 marked as Ex.A-2. The traffic police, Chityal imposed a fine under section 184/177 of M.V.Act, Vehicle No.AP-09TA-1191 on 2-11-2008 at about 20-00. The Opposite Party vehicle driver paid compounding fee Rs.300/- as Ex.A-1. Transport authorities issued a certificate of registration in favour of the Opposite Party vehicle No.AP-09TA-1191 on 29-4-2008 as Ex.A-5. The
    Contd…4/-
    - 4 -
    Opposite Party No.1 insured his vehicle with Opposite Party No.2 insurance company, vide Policy No.612400/31/08/01/00000288, valid from 24-4-2008 to 23-4-2009 as Ex.A-6. The complainant filed a complaint before P.S.Chityal stated that while he was returning from Hyderabad to Nalgonda, when he reached Pedda Kaparthy Village at about 5-30 p.m., with minimum speed, the Opposite Party No.1 Lorry bearing No.AP-09TA-1191 with high speed coming behind had collided the back portion of the complainant’s Maruthi Van. Due to which, complainant’s Maruthi Van bearing No.AP-10E-9981 was badly damaged. The complainant got repaired his van for that he incurred an expenditure of Rs.8,265/- for purchase of spare parts, filed xeror copies of bills as Ex.A-3 and he also spent Rs.5,650/- for repairing charges as Ex.A-4. The complainant issued a legal notice dated 29-12-2008 through his counsel to the Opposite Parties demanding to pay Rs.13,915/- towards damages within ten days from the date of receipt of legal notice. The complainant filed acknowledgement as Exs.A-9 and A-10. The above exhibits shows that the complainant’s vehicle was damaged due to the said accident, held by the rash and negligent driving of the Opposite Party No.1 Lorry bearing No.AP-09TA-1191. Exs.A-1 and A-2 shows that the police conducted Panchanama and stated that Opposite Party No.1 Lorry bearing No.AP-09TA-1191 came with high speed and rash and negligent manner and hit the complainant’s vehicle on the back side, due to that the back portion of Maruthi Van badly damaged. The complainant got repaired the vehicle at Re-Touch Automobiles, Nalgonda on 28-11-2008 and incurred an expenditure of Rs.8,265/- for purchase of spare parts and also paid an amount of Rs.5,650/- for repairing charges. As per affidavit of the complainant we
    Contd…5/-
    - 5 -
    were made to believe that the Opposite Party No.1 Lorry bearing No.AP-09TA-1191 came with high speed and rash and negligent manner hit the back portion of the complainant’s Maruthi Van, due to the said accident the said vehicle was badly damaged and the complainant incurred expenditure of Rs.13,915/- for the purchase of spare parts and repairing charges, where the same was not contested by the Opposite Parties who stood exparte. Due to the negligent act of Opposite Party No.1 the complainant incurred above loss. The Opposite Party No.1 insured his vehicle with Opposite Party No.2. So, the complainant issued legal notices to the Opposite Parties No.1 and 2 regarding the loss incurred by him due to the accident, but the Opposite Parties neither replied to the notice nor they paid any amount. Therefore, we opine that the Opposite Party No.2 is liable to pay Rs.13,915/- towards purchasing the spare parts and repairing charges.

    6. POINT No.2: In the result, the complaint is partly allowed directing the Opposite Party No.2 alone to pay to the complainant Rs.13,915/- (Rupees Thirteen thousand nine hundred and fifteen only) towards purchasing of spare parts and repairing charges along with costs of Rs.1,000/- (Rupees One thousand only) within 30 days from the date of the communication of this Order.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    1. Chinthalapudi Sarath Babu, s/o.Venkataiah, age: 55 years, occu: Agriculture.

    2. Smt.Chinthalapudi Pitchamma, w/o.Sarath Babu, ae: 50 years, occu: House hold

    3. Chinthalapudi Vamsi Kishore, s/o.Sarath Babu, ae: 28 years, occu: Agriculture.

    All are r/o.H.No.6-3-52/6, Bank colony, Khammam Town and District.

    ...Complainants

    and

    The New India Assurance Co. Ltd., rep. by its Branch Manager.

    ...Opposite Party.

    The complainants are the holders of Medi-claim policy vide policy No.610902/48/05/75384 which is being renewed from time to time since last seven years. On 8-11-2006 the complainant No.1 had approached the opposite party office and requested to renew the above policy. The staff in the office of opposite party had asked the complainant No.1 to pay a sum of Rs.4,490/- for the purpose of renewal of policy and the same was endorsed on the policy paper. When the first complainant was remitting the said amount, the manager of opposite party had willfully rejected to receive the said amount for the reasons best known to him.

    The complainant further stated that the refusal of the opposite party to renew the said policy is without any basis, unilateral and against the public policy as also principles of natural justice. As the complainants are continuing the above said policy since last 7 years, the bonus announced by the opposite party company will have to be credited and the complainants become entitled for reimbursement in respect of their medi-claim of the bonus amount in addition to policy amount in respect of each complainant. To deprive the complainants from this benefit, it appears that the opposite party is refusing to renew the policy of the complainants, who are members of the same family, if the above policy of the complainants is not renewed for no fault of them, the complainant will be deprived to enjoy the benefit in the form of bonus to which they are entitled as per the terms and conditions of the above policy.

    The complainant No.1 had taken a lot of risk for getting the above policy of them renewed, when there is no fault on the part of complainants, the opposite party is liable to pay damages of Rs.10,000/-. The complainant issued a legal notice on 15-11-2006 calling upon the opposite party to renew the above policy of them by receiving a sum of Rs.4,490/- towards the renewal of the above policy. Hence, this complaint to direct the opposite party to renew their Medi claim policy No.610902/48/05/75384 and to declare that the refusal of the opposite party to renew the above policy of the complainant is arbitrary and illegal and that the opposite party is liable to renew the above policy of the complainant, to direct the opposite party to pay a sum of Rs.10,000/- towards damages to the complainants and to award costs.

    2. The complainant No.1 filed his affidavit along with the following documents.

    Ex.A.1 is Xerox copy of policy of the complainants

    Ex.A.2 is Legal notice along with postal receipt.

    The complainants also filed their written arguments.

    3. On receipt of the notice, the opposite party appeared through its counsel and filed counter and stated that thereis no dispute about the date of expiry of the policy of the complainant vide policy No.610902/48/05/75384 is 10-11-2006,that before the date of expiry the opposite party has sent information letter about the date of expiry on 10-11-2006 to the complainant No.1 by mentioning the renewal of policy premium as Rs.4,490/-. But the complainants did not turn to the office of the opposite party to renew the above said policy by paying necessary premium. As per the contents of the complaint, it is clearly established that the staff of the opposite party offered the complainant No.1 to pay an amount of Rs.4,490/- for renewal of the policy of the complainants and the same was endorsed on the policy papers.

    If really, the opposite party is having intention not to renew the policy of the complainants, they would not have told the complainant No.1 to pay the amount of rs.4,490/- for renewal of the policy. It is only enough to say that without paying prescribed amount for the purpose of renewal of the policy with having bad intention to get illegal benefits, the complainants filed this false claim by suppressing the real facts that they are not going to pay the renewal amount at the office of the opposite party. If really the opposite party has refused to receive the amount by the complainant No.1, he is having opportunity to send a cheque in favour of the opposite party through registered post, but the complainant did not take any steps to prove the same. As such it is clear that the complainant filed this false case to get illegal benefits from the opposite party. Hence, the complaint may be dismissed.

    4. On behalf of the opposite party, intimation letter is marked as Ex.B.1.

    5. Upon perusing the material papers on record and upon hearing the arguments on both sides, now the point that arose for consideration is,

    Whether the complainants are entitled to renew the mediclaim policy?

    Point:


    6. It is an admitted fact that the complainants are the holder of Medi-claim policy vide policy No.610902/48/05/75384, which is being renewed from time to time since last seven years. On 8-11-2006 the complainant No.1 had approached the opposite party office and requested to renew the above policy. The staff in the office of opposite party had asked the complainant No.1 to pay a sum of Rs.4,490/- for the purpose of renewal of policy and the same was endorsed on the policy paper. When the first complainant was remitting the said amount, the manager of opposite party had willfully rejected to receive the said amount.

    7. On the other hand, the opposite party contended that if really the opposite party is having intention not to renew the policy of the complainant, they would not have told the complainant No.1 to pay the amount of Rs.4,490/- for renewal of the policy.

    8. From the above rival contentions raised by the complainants and opposite party, it appeared that the complainants are entitled some bonus because they renewed the medi claim policy from time to time since last 7 years. It is the duty of the opposite party to clearly mention the terms and conditions of the mediclaim policy and also it is the duty of opposite party that if any bonus has come from the above said policy premium, it should be added to the premium of the policy, which is paying from time to time.

    9. Hence, we are of the opinion that the opposite party has to receive the premium from the complainants and renew the above said policy. In the above said circumstances, we are not awarding any damages.

    10. In the result, the complaint is allowed, directing the opposite party to renew the above said medi-claim policy after deducting the bonus of the said policy as per terms and conditions of the policy and to receive the rest of the amount from the complainants.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    Chintha Chandra Sekhar, S/o.Udaya Bhaskara Sharma, age: 37 years, occu:

    Business, r/o.near Ramalayam, Pandurangapuram,Khammam urban

    mandal, Khammam District.

    …Complainant
    The New India Assurance Co. Ltd., Khammam rep. By its

    Branch Manager.

    …Opposite party.

    O R D E R

    1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The averments made in the complaint are that the complainant is the owner of the vehicle bearing No.AP-20-U-2574 which was insured with opposite party company under comprehensive policy covering the own damages risk, valid from 6-7-2001 to 5-8-2002. It is further submitted that the said vehicle met with an accident on 29-5-2002 and the concerned police registered the case. The opposite party company was duly informed about the accident, it was deputed the loss assessor by name Bade Murali Krishna, who submitted the report to the opposite party. It is further submitted that the complainant produced all the necessary bills, but the opposite party did not pay the amount of loss to a tune of Rs.50,000/-. Thereafter he got issued legal notice on 2-9-2003 to the opposite party, which acknowledged the legal notice, neither gave reply nor gave payment. Hence, the complaint to direct the opposite party to pay an amount of Rs.50,000/- together with interest at 2% p.a. from the date of accident till the date of realization together with costs.

    On the other hand, on receipt of notice, the opposite party made appearance and filed counter contending that the driver of the vehicle was not having valid driving licence to drive the vehicle and also denied the genuineness of the accident and regarding nature of repairs underwent by the vehicle of the complainant. It is further contended that the complainant failed to submit original R.C., D.L. of the driver, preliminary records and other documents in spite of letters and reminders. It is further contended that they issued the registered letter to the complainant to produce relevant documents, but he failed to do so and contended that there is no deficiency of service on their part and prayed to dismiss the complaint.

    Originally this complaint was disposed of by this forum on 13-3-2006, by dismissing the complaint holding that the complainant failed to submit any documentary evidence regarding the loss assessed by the surveyor and bills of the vehicle, registration certificate and driving licence of the driver.

    Aggrieved by the said order, the complainant has preferred an appeal to the State Commission. The State Commission vide its order in F.A.No.301/2007 dt.19-9-2008 has remanded the case by setting aside the order enabling the appellant/complainant, gave a chance to file the relevant documents and directed to dispose of the case within 3 months from the date of receipt of this order.

    On receipt of the said order, the complainant herein filed his chief-affidavit and documents, which are marked as Exs.A.1 to A.8. Ex.A.1 is copy of F.I.R., Ex.A.2 is office copy of legal notice, Exs.A.3 and A.4 are the postal acknowledgements, Ex.A.5 is the Registration certificate, Ex.A.6 is the driving licence, Ex.A.7 is the bills in respect of repair of the vehicle and Ex.A.8 is the photographs showing the damage caused to the vehicle.

    On behalf of the opposite party, the Senior Assistant has filed his affidavit as R.W.1.

    Both the counsels filed written arguments. Heard both sides. Perused the oral and documentary evidence, upon which the points that arose for consideration are,

    1) Whether the complainant is entitled to claim loss sustained by him

    due to the accident caused to the insured vehicle?

    2) To what relief?

    Points No.1 and 2:

    The case of the complainant is that he is the owner of the vehicle bearing No.AP-20-U-2574, which is the insured with the opposite party company. The vehicle met with an accident and got damaged and the vehicle was covered under the policy from 6-8-2001 to 5-8-2002. This accident has taken place when the policy was in force. The complainant claimed the damages, but the opposite party did not pay the compensation without any reason, though it is liable under the policy bearing No.610902/31/01/05411. With regard to the policy of the vehicle concerned, he refers to Ex.A.1, which proves the case of the complainant, he also refers to Ex.A.2, F.I.R., which is the complaint given by one A.Kishan, who was one of the passenger traveling in the said auto on the date of accident.

    In this complaint, he has clearly narrated that the tractor came in a rash and negligent manner driven by its driver and its tipper gave dash to the auto, due to which the auto turned turtle and the passengers traveling in the auto sustained injuries. Apart from this, the complainant refers to Ex.A.3, office copy of legal notice, wherein he demanded the opposite party to pay damages caused to the vehicle, Ex.A.4 is the acknowledgments to the legal notice. Apart from this, the complainant refers to Ex.A.5, registration certificate, in which the vehicle stands in the name of complainant. He also refers to Ex.A.6, driving licence under which he was authroised to drive the light motor vehicles transport only with effect from 15-7-1999. Apart from this, the complainant refers to Ex.A.7, bills issued for the purchase of automobiles towards repairs caused to the vehicle and also to Ex.A.8, photographs, wherein the vehicle was damaged. Exs.A.1 to A.8 clinchingly go to establish that the vehicle belonging to the complainant has damaged in the accident. On the date of accident, the policy was in force and he sustained loss as in Ex.A.7, bills.

    On the other hand, it is the case of the opposite party that on the date of alleged accident, there were more than 8 persons traveling in the auto and due to gross negligence and over capacity of passengers, it hit the tractor from the back side and due to which the accident occurred and therefore the complainant violated the terms and conditions of the policy and as such the opposite party is not liable to pay compensation.

    On this aspect of the case, the complainant refers to Ex.A.1, F.I.R., in which it is clearly mentioned that it is a trally of the tractor, which hit auto and it is not on the part of auto driver, the accident occurred. It is the further case of the opposite party that the complainant failed to submit any record regarding the registration certificate, driving licence and also criminal record regarding the accident and also placed reliance to a decision reported in 2008(2) SCJ 470. On this point only, earlier complaint was dismissed and the state commission was pleased to remand the matter enabling the complainant to file these documents. As per order of the state commission, the complainant has filed all the relevant documents, which are marked as Exs.A.1 to A.8. The learned counsel for the opposite party vehemently argued and submitted that at the time of accident, the vehicle was driven by the person holding the licence to drive light motor vehicle, but not transport. In the instant case, the complainant refers Ex.A.6, driving licence, wherein it is clearly mentioned that the driver is authorized to drive light motor vehicle transport only with effect from 15-7-1999. In view of the said driving the licence, the ratio attached to this citation is not applicable to the present case.

    In the light of the relevant documentary evidence, it is established that the vehicle involving in this accident to the non transport vehicle and the complainant was having the licence to drive light motor vehicle and there was an endorsement as required under section 3 of the Act that the driver is also authorized to drive transport vehicle. Therefore, the opposite party cannot escape from its liability. As regards the damages caused to the vehicle is concerned, the complainant refers to Ex.A.7, which are the bills for the purchase of automobile parts and repair charges, which comes to a tune of Rs.40,412/- to which the complainant is entitled.

    In view of the aforesaid reasons, we are of the opinion that the complainant has substantially established that the vehicle met with an accident and sustained loss to a tune of Rs.40,412/- to which the opposite party is liable to compensate the complainant.

    Accordingly, the complaint is allowed, directing the opposite party to pay compensation of Rs.40,412/- together with interest at 9% P.A.from the date of accident, till the date of realization. Further, the opposite party is directed to pay an amount of Rs.2,000/- towards costs of the litigation.
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