ICICI Lombord

adminadmin Administrator
Date of Filing: 8.01.2008
Date of Order: 13-03-2009
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM –II, HYDERABAD
P r e s e n t*
Sri N. Venkatesham, Bsc., L.L.B., … President
Dr. G. Kumaraswamy Naidu M.A., MPhil., P.hd.,L.L.B., … Member
Friday, the 13th day of March ,2009
Consumer Case No.23/2008
Between
A.K. Agencies,
Having its Office at 5-6-818/2, DarusalamRoad,
Hyderabad. Being Rep.by its Proprietor
Mr. Abdul Gaffar. S/o. Late Abdul Quader,
Aged, Occ:
R/o. 8-1-351/22, Tolichowki, Hyderabad. ……Complainant

And
.
ICICI Lombord General Insurance Co. Ltd.,
Having its Office at Flat No.301, 5th Floor,
Bhavana Towers,S.D. Road, Secunderabad-500 025.
Rep by its Branch Manager. …..Opposite party


This case coming on 18-02-09 for final hearing before this forum in the presence of P. Raja Sripathi Rao advocate for the complainant and Sri Jyothi Rao, advocate for the opposite party No.1 and having stood over till this date for consideration, this Forum pronounced the following:-
O R D E R
(By Sri N. Venkatesham, President on behalf of the bench)
. This complaint under Section 12 of Consumer Protection Act, 1986 was filed by the complainant for a direction to the opposite party to pay a sum of Rs. 67,277/- that is the amount paid by the complainant to M/s. Harsha Toyota together 24% interest per anum and to pay an amount of Rs.25,000/- for causing mental agony and cost of the complaint at Rs.10,000/-.


1. Case of the complainant runs thus:- The complainant is proprietary concern, purchased the vehicle (Toyoto Innova) bearing Registration No. AP 10 AF2408/ under finance from Darusalam Co-operative Bank and paying equal monthly instalments at Rs. 18,700 regularly after purchase of the vehicle, it was insured with the opposite party vide policy No.3001/51937960/00/000 and policy was issued on 14-06-2007, covering the period of insurance from 8-6-2007 to 07-06-2008.

It is stated that the above said vehicle was involved in an accident (Date and place of accident is not mentioned) and immediately after the accident, the vehicle was shifted to M/s. Harsha Toyota for affecting repairs. Later on, intimation was given to the opposite party and inturn, the opposite party deputed the Surveyor who inspected the vehicle and gave the approval for effecting the repairs. After repairs and on intimation was given to the complainant he had taken delivery by paying the bill towards repairs. The bill given by M/s. Harsha Toyota (Authorised Dealer) was submitted to the opposite party for settling the claim and intimation was also given in writing on 25-10-2007 but the opposite party has not settled the bill. Thereafter, a reminder was given to the opposite party on 2-11-07 and on that the opposite party replied vide its letter dated 6-11-07 under Ref. No.HYD/FDRCLM/3561/2007 where under the claim made by the complainant was repudiated on the ground. that “Drivers name, manipulated”. The repudiation of the claim is malafide and non-settling the claim by the opposite party amounts to deficiency in service. Hence complaint is filed to direct the opposite party to pay a sum of Rs.67,277/- towards repair charges paid by the complainant to M/s. Harsha Toyota and to award interest at 24% p.a. The complainant also claimed a sum of Rs.25,000/- towards mental agony and Rs.10,000/- towards cost of the complaint.


2. The opposite party filed a Counter/Written version denying the contents of the complaint by stating that there is no mention as to the date of accident, as also the manner of the accident in the complaint. The FIR copy filed by the complainant reveals that FIR was lodged on 5-8-07, in which it was stated that accident occurred on 4-8-07 by an unknown vehicle and one Scooterist died in the said accident. The police filed the charge sheet on 30-08-2007 in which it was stated that driver of Toyota Innova bearing No.AP 10 AF 2408 drove the vehicle rashly and negligently while coming from Moinabad to Hyderabad, dashed to one scooterist near deer park due to which the scooterist died. Where as the complainant on 12-10-2007 in a written letter to the opposite party stated that when his vehicle was parked near his house at Toil chowki at 6.00 PM, a lorry passing by, hit the vehicle and there by the vehicle was damaged. Even in the said letter, there is no mention about the date of occurrence and damage caused to the vehicle. It is a fact that the opposite party was intimated about the alleged damage on 29-08-07. Though the surveyor of the opposite party informed the complainant to carry out the works as per assessment the claim of the complainant is subject to investigation report and for which the complainant has accepted. The complainant did not inform to the opposite party immediately after the damage was caused to the vehicle in the accident and no police report was given. Therefore, there is discrepancy in the version of the complainant regarding the manner of the accident and statement in FIR lodged on 4-8-07 and that the name of the driver of the accident vehicle was manipulated by the complainant. Thus repudiation of the claim by the opposite party is justified and as such complainant is not entitled to any reliefs prayed in the complaint. Hence prayed to dismiss the complaint of the complainant with costs.


3. After filing Counter/written version, complainant has filed a rejoinder by stating that date of accident was clearly mentioned in the letters dated 29-8-07 and 12-10-07. The repudiation of the claim by the opposite party is based the self drawn conclusion. The accident occurred on 5-8-07 and subsequently the Police Moinabad registered a false crime vide crime No.172/2007. The charge sheet filed by the Police is not within the knowledge of the complainant. The reason for late intimation of the accident to the opposite party is due to registering a false crime by the Police and harassment to the family members of the complainant. The police picked up the brother of the complainant by name Abdul Hameed on 10-08-07 at 12.00 Noon and that police accompanied with civilians visited the office of Mr. Abdul Hameed and started demanding him the presence of the complainant, even though the said Hameed informed the police about the non-availability of the complainant. The police took him in a Police Jeep bearing No.A.P9P 5661 initially to Ciberabad Police Commissioner’s Office and from there he was taken to Harsha Toyota Workshop and from there to Narsing Police Station, At Narsingi Police Station, another brother of the complainant by name Abdul Lateef along with Krishna Vijaya Rao and P.Raja Sripathi Rao, Advocates met the complaiannt’s brother who was under illegal detention and enquired about his wellbeing. Later on, a complaint was given to the Office of the Human Rights Commission and the same is pending.

The driver’s name was not manipulated.. The repudiation letter dated 6-11-07 is not based on the evidence and on what basis the opposite party came they came to the above said conclusion. Hence prayed to allow the complaint.

In course of enquiry, the complainant filed his affidavit, reiterating the contents of the complaint, and got marked exhibits A1 to A12.

Ex A1 is a Copy of First Information Report, dated 5-8-07
Ex.A2 is a Certificate of Registration issued by A.P. Transport Department
Ex.A3is a Copy of Invoice , dated 4-10-2007.
Ex.A4 is a Letter to the opposite party from complainant,
dated 25-10-07.
Ex.A5is a Letter to the Opposite party from complainant,
dated 2-11-07.
Ex.A6 is a Xerox copy of Certificate Cum Policy schedule
Ex.A7is a Xerox copy of Bank Statement
Ex.A8 is a Xerox copy of letter to the complainant, dated 06-11-2007.
Ex.A9is a Copy of Registered post Acknowledgement Due Legal Notice Dated 28-06-08.
Ex.A10 is a Copy of Reminder issued by A.P State Human Rights Commission H.R .Case No.1516/2007
Ex.A11 is a Police Report, dated 11-08-2007
Ex.A12 is a Letter from the complainant, dated 11-08-2007.
As against the evidence of the complainant, the opposite party got marked exhibits B1 to B5
Ex.B1is a Copy of First Information Report, dated 5-8-07
Ex.B2 is a Copy of complaint given by S. Vinayakarao, dated 5-8-07.

Ex.B3 is a Copy of Final result U/S 173 CR.P.C

Ex.B4 is a Copy of letter to the OP, dated 12-10-2007.

Ex.B5 is a Copy of letter to the OP, dated 25-10-2007.


After closure of the oral and documentary evidence adduced by both parties, written arguments were filed and this forum also heard oral submissions.

Points for Consideration :-


1.Whether the repudiation of claim made by the opposite party is sustainable?
2.Whether the complainant is entitled to the directions sought for?
3. To what relief?

Points No.1 and 2:- So far as the insurance policy of the complainant’s vehicle bearing No. AP 10 AF 2408 with the opposite party for the period from 8-6-2007 to 7-6-2008, is not in dispute. There is also no dispute with regard to intimation given by the complainant to the opposite party. It is also not in dispute that the opposite party’s surveyor had inspected the vehicle at their work shop (M/s. Harsha Toyota) and also the bills paid by the complainant towards the repair charges.

The opposite party repudiated the claim on the ground of manipulation of the driver’s name and that the date and time of accident are not mentioned. The contention of the opposite party is not based on any material and the FIR in which a sccorterist died and regarding which Moinabad Police registered a case, it is however, disputed by the complainant and the claim relates to only the damages of the vehicle, which is fully covered by the policy. It is not a claim arising on amount of the said accident of Moinabad Police Station but an altogether different one. Hence the opposite party is bound to indemnify the complainant’s vehicle and that the complainant is entitled for repair charges with interest at 9% p.a. from the date of the complaint till realisation. Regarding damages, complainant is not entitled as he is being compensated the bill amount with interest points are answered accordingly.


Point No.3:- In the result, complaint of the complainant is partly allowed and we direct the opposite party to pay a sum of Rs.67,277/- (Rupees Sixty seven thousand two hundred and seventy seven only) together with interest at 9% p.a. from the date of complaint till its realisation. Costs of the litigation is fixed at Rs.1,000/- (Rupees one thousand only). The order shall be complied within two months from the receipt of this order.
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Comments

  • adminadmin Administrator
    edited September 2009
    ORDER
    By Smt. C.S. Sulekha Beevi, President,
    1. It is the say of complainant that his vehicle which is insured with opposite party dashed against an electric post of Kerala State Electricity Board. Complainant had to pay Rs.11,426/- towards damages to the Kerala state Electricity Board for which receipt was issued to him. Though complainant put forward a claim to opposite party to indemnify the above amount opposite party did not honour his claim. Hence this complaint.


    2. Opposite party filed version admitting the insurance coverage. It is submitted by opposite party that complainant has violated condition No.2 of the policy which states that the complainant cannot enter into any arrangement or settlement with any other without the written consent of the company. That opposite party has not given any consent much less, a written consent to settle the matter with Kerala State Electricity Board and that therefore opposite party is not liable to compensate the complainant.. That complainant has not sustained any loss and what is claimed is reimbursement of a loss allegedly sustained by a third party which was made good by the complainant. That there is no deficiency in service.


    3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A6 marked for him. Opposite party filed counter affidavit. No documents marked for opposite party. Either side has not adduced any oral evidence.


    4. Complainant is aggrieved that opposite party failed to reimburse the amount of Rs.11,426/- paid by him to Kerala State Electricity Board for the loss sustained by Kerala State Electricity Board on account of damage caused to the electric post in the accident involving the vehicle belonging to the complainant. Ext.A3 is the notice issued by Kerala State Electricity Board to complainant demanding him to pay Rs.11,426/-. Ext.A4 is the receipt for the payment of the said amount. Thus apparently complainant has paid the amount before obtaining any written consent from opposite party. The complaint is resisted by opposite party stating that as per terms and conditions of the policy, in case of any third party liability, the complainant has no right to arrive at any settlement or compromise with third party without the knowledge and consent of opposite party. Condition No.2 in page 6 of the policy produced along with version reads as under:

          1. “No admission offer promise payment or identity shall be made or given by or on behalf of the insured without the written consent of the Company which shall be entitled if it so desires to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit any claim for indemnity or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement or any claim and the insured shall give all such information and assistance as the Company may require.”
    5. It is clear that complainant cannot make any payment without the written consent of the Company. Complainant has thus violated the conditions of the policy and opposite party cannot therefore be held liable. In our view the repudiation is justifiable. We hold opposite party not deficient in service.
    6. In the result,t he complaint fails. We make no order as to costs.
    1. Dated this 18th day of March, 2009.
  • adminadmin Administrator
    edited September 2009
    REASONS POINTS 1&2: Complainant is the owner of tempo trax cruiser bearing no. KA29 M2644. it is insured with respondent for the period from 23-3-2008 to 22-3-2009 that vehicle met with accident on 24-5-08 while going from solapur to pune, maharashtra police have registered a case against driver of the vehicle. Damages were caused to that vehicle in that accident.

    These facts are not in dispute. Accident has taken place on 24-5-2008. Complaint is filed in the year 2008 itself as such how the complaint is barred by time nothing is stated and proved by respondent as such its contention that complaint is barred by time, cannot be accepted. Respondent has repudiated the claim of the complainant only on a ground that, that vehicle was used for hire and reward purpose. Absolutely no material is produced by the respondent to prove that, that vehicle was used for hire and reward purposes. Respondent has got filed 2 letters of 2 persons who claim to have stated that, they have seen this vehicle using for hire and reward purposes. Affidavits of those 2 persons are not filed.

    As such only on those 2 letters it cannot be said that, that vehicle was used for hire and reward purposes. By producing an estimate complainant claims to have spent a sum of Rs.259129.86 ps towards repair of that vehicle at Desai and co. Hubli. Only an estimate is produced but not the bills. Even affidavit of that Desai and Co. is not filed. As such, such quantum of damages cannot be ordered in favour of the complainant. Complainant has produced a bill for Rs.9200/- to state that, that vehicle was brought to Hubli by another vehicle, even affidavit of that person is not filed. Respondent has produced surveyors report.

    Surveyor has estimated the damages at Rs.174903/- in which policy excess is deducted. That surveyor has assessed the salvages @ Rs.9800/- if that amount is deducted the damages comes to Rs.165103/- moreover, the complainant has not produced any material to disprove such surveyor’s report, as such if such quantum is ordered, may not be unjust. If reasonable rate of interest is ordered further order for deficiency in service and mental agony may not be necessary. However, the complainant will be entitled to the cost of the litigation. Non settlement of the claim on unproved fact amounts to deficiency in service.

    Hence point.1 is answered in Positive and point.2 in Positive but accordingly. Point.3: In view of the finding given on points 1 and 2 proceeded to pass the following O R D E R The complaint is allowed in part with a direction to the respondent to pay Rs.1,65,103/- with 8% interest p.a payable two months after the date of accident i.e.24-5-2008 apart from Rs.1,000/- towards cost of the litigation within one month from the date of receipt of copy of this order. (Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 11th March 2009)


  • adminadmin Administrator
    edited September 2009
    [FONT=&quot]//JUDGMENT//[/FONT]
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    [FONT=&quot] This is the complaint filed by the Complainant K.Nageshappa against Respondent Nos.1 and 2 ICICI Lombard General Insurance Company Ltd. under Sec-12 of C.P. Act, for to direct the Respondents to pay an amount of Rs.80,528/- which is an expenditure incurred by him for to repair of his damaged car in the accident with interest, to award an amount of Rs.1,00,000/- towards deficiency in their services, to award an amount of Rs.50,000/- for his mental sufferings with cost and other reliefs as deems fit to the circumstances of this case. [/FONT]
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    [FONT=&quot]2. The brief facts of the Complainant’s case are that; [/FONT]
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    [FONT=&quot]He is the owner of Indica DLS Car bearing Regn. No.KA-35/M-5131 which comprehensively insured with Respondents Insurance Company met with an accident 28/04/2008 while he was traveling in it near Kappagal village on public road while Insurance Policy was in force. His Car badly damaged in the accident, he informed the same to the Police as well as to the Respondents Insurance Company. He got repaired the vehicle by spending an amount of Rs.80,528/-. He filed claim petition with all necessary records before the Respondents, but they shown their negligence in settling his claim and ultimately they repudiated his claim on untenable ground and thereby both Respondents are found guilty under deficiency in their services as such, he filed this complaint for the reliefs as noted in it. [/FONT]
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    [FONT=&quot] 3. The Respondent Nos.1 and 2 appeared in this case through advocate and Respondent No.2 filed Written Version and Respondent No.1 adopted the W.V. of Respondent No.2. The brief facts of W.V. of Respondents are that; [/FONT]
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    [FONT=&quot] Vehicle Indica Car DLS bearing No.KA-35/P-194/TR/08-09 is a private Car of the Complainant comprehensively insured with Respondents Insurance Company and its validity is from 17.04.2008 to 16.04.2009 subject to the terms and conditions in it. On 28/04/2008 the said vehicle met with an accident while it was using for commercial purpose. Hence, the Complainant has violated the terms and conditions of Policy and thereby it rightly repudiated the claim of Complainant vide its letter dated: 05/06/2008. Surveyor was appointed, he assessed the loss and damage to the vehicle. The Complainant’s claim is without support of bills. There was no deficiency in service on their part. Accordingly, they prayed for to dismiss the complaint with cost. [/FONT]
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    [FONT=&quot]4. In view of the pleadings of parties, now the points that arise for our consideration and determination are that; [/FONT]
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    [FONT=&quot]1.[/FONT]
    [FONT=&quot]Whether the Complainant proves that while traveling by him in his Car bearing No.KA-35/M-6131 comprehensively insured with Respondents Insurance Company met with an accident on 28/04/2008 on public road, near Kappagal village, his car was badly damaged in the said accident, he informed to the Police as well as to the Respondents Insurance Company, he got repaired the vehicle, thereafter, he submitted claim petition with all relevant documents, but Respondents shown their negligence in settling his claim and ultimately his claim was repudiated on 05/06/2008 on untenable ground and thereby both Respondents found guilty under deficiency in their services towards him? [/FONT]
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    [FONT=&quot]2. [/FONT]
    Whether the Complainant is entitled for reliefs as prayed in this complaint?
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    [FONT=&quot]3.[/FONT]
    [FONT=&quot]To what relief the Complainant is entitled for? [/FONT]
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    [FONT=&quot]//POINTS[/FONT][FONT=&quot]//[/FONT]


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


    6. [FONT=&quot]In order to prove the facts involved in these two points, the affidavit evidence of Complainant was filed, he was noted as P.W.1. Documents Ex.P.1 to Ex.P.12 are marked. On the other hand, the affidavit evidence of Manager-Legal of Respondents Insurance Company was filed, he was noted as R.W.1. Surveyor’s affidavit evidence was filed, he was noted as R.W.2. Documents Ex.R.1 to Ex.R.4 are marked. No Written Arguments filed by both parties. [/FONT]
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    [FONT=&quot] 7. In the instant case, ownership of vehicle of Complainant in question, comprehensive insurance of said vehicle with Respondents Insurance Company, general registration certificate of it and on 28/04/2008 it met with an accident, due to it the said vehicle badly damaged are all not in dispute between the parties. In the similar way, filing of claim petition by the Complainant with relevant records before Respondents Insurance Company is also not in dispute. Hence, documents Ex.P.1 to Ex.P.5 are need not required much appreciation. [/FONT]
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    [FONT=&quot] 8. Material document to decide the dispute in between the parties is Ex.P.9 which is repudiating letter by the Respondents Insurance Company addressed to the Complainant. In the said letter, the claim of Complainant was rejected on the ground that the said Car was used for commercial purpose. [/FONT]
    [FONT=&quot] 9. In the light of such contention, the Respondents Insurance Company further contended that, the Complainant has violated the terms and conditions of Insurance Policy and thereby it justified in rejecting the claim of Complainant. [/FONT]
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    [FONT=&quot] 10. The learned advocate for Complainant contended that, on the said date, time and place of accident the Complainant was traveling in the said Car and thereby it was for his personal use as such, he not violated any terms and conditions of Policy. Hence, repudiating the claim by the Respondents Insurance Company is illegal. [/FONT]
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    [FONT=&quot] 11. To decide who is correct and who is wrong as contended by themselves, this Forum has referred a ruling reported in 2006 CTJ 793 (CP) (SCDRC) Tata AIG General Insurance Co. Ltd. Vs. B.Balasubramanian & Anr as a guideline to us. In the said ruling, their lordships of Hon’ble State Commission held as the burden is on the insurer to aver and to prove that insured has violated the terms and conditions of Policy. [/FONT]
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    [FONT=&quot] 12. In the light of principles of above said ruling, now we have to see as to whether Respondents Insurance Company has discharged its burden of proving the fact that, the Complainant has violated the terms and conditions of Policy. Admittedly, the Respondents averred in their Written Version that, the said vehicle was using for commercial purpose at the time of accident. [/FONT]
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    [FONT=&quot] 13. Now, what is the proof of such averments by the Respondents Insurance Company. The Manager-Legal of Respondents Insurance Company stated this fact in his affidavit evidence who is noted as R.W.1. RW.2 is Surveyors’ affidavit evidence is silent in this regard. Now the documentary evidences of Respondents are concerned, Ex.R.1 is the Policy schedule not relevant document in proving this fact. Ex.R.2 the copy of claim petition, Ex.P.3 the repudiation letter and Ex.R.4 the copy of Surveyor’s report which are also not relevant for deciding this contention of Respondents Insurance Company. [/FONT]
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    [FONT=&quot] 14. The Complainant himself stated in his affidavit evidence that he personally travelling in his car on the date of accident which supports document Ex.P.5 copy of FIR with copy of complaint that the Complainant was personally travelling in his car as on the said date, time and place of accident. There are no acceptable evidences from the side of Respondents Insurance Company to hold that the said vehicle was used for commercial purpose at the time of accident. Hence, the contention of Respondents Insurance Company is rejected as it is not supported by acceptable evidences, so the contention of Complainant is accepted. [/FONT]
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    [FONT=&quot]15. Admittedly, there is a delay in settling the claim of Complainant by the Respondents Insurance Company. Invariably Insurance Company have to settle the claim of insured within three months, if there is delay in settling the claim on untenable grounds within the said period of three months then the said delay is amounting to deficiency in service on the part of Insurance Company. (2006 CTJ 1090 (CP) (NCDRC) Govind Rubber Ltd. Vs. United India Insurance Company). [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot]16. In the light of observations of their lordships of Hon’ble National Commission, we come to conclusion that, the delay caused by the Respondents Insurance Company in settling claim of Complainant on the ground as noted in Ex.P.9 and Ex.R.3 without substance is amounting to deficiency in service on the part of Respondents Insurance Company to the Complainant. Accordingly, we answered Point No.1 in affirmative. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]17. As regards to the reliefs as prayed by the Complainant are concerned, he claimed expenses of Rs.80,528/- incurred for repair of his damaged vehicle in a private show room. In support of this claim, he filed estimation copy Ex.P.6 prepared Bhagyodaya Motors, Hospet, Ex.P.7 reciept and Ex.P.8 tax invoice. On the other hand, the Respondents denied such claim of him. It relied on the affidavit evidence of R.W.2 and his report vide Ex.R.4. According to Survey report Ex.R.4 and his evidence R.W.2 total loss assessed by the Surveyor after inspection of the vehicle is to the extent of Rs.66,300/-. [/FONT]
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    [FONT=&quot] 18. In the light of these contentions, we have gone through the evidence of R.W.2 and his report Ex.R.4. Surveyors’ report shows that, the net loss recommended to the insured is of Rs.66,300/- which is after deduction of salvage value of Rs.2,110/-. Hence, there need not be second time deduction of Rs.2,110/- in the net amount of Rs.66,300/-. We are of the view that, placing reliance on affidavit evidence R.W.2 and his report Ex.R.4 is safe. The amount claimed by Complainant and net amount assessed by Surveyor is not much difference as such, we have accepted the affidavit evidence of Surveyor R.W.2 and his report Ex.R.4 and came to conclusion that, the Complainant is entitled for to recover an amount of Rs.66,300/- towards net loss sustained by him due to damage to his vehicle from the Respondents jointly and severally. [/FONT]
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    [FONT=&quot] 19. The second prayer of Complainant is for to grant an amount of Rs.1,00,000/- towards deficiency in service by the Respondents for non-settling his claim. No doubt, we have noticed the deficiency in service on the part of these Respondents towards the Complainant. But we are not satisfied with this claim of Complainant as it has no suffcinet and proper evidence to grant such abnormal amount under this head. As such, we are of the view that, granting an amount of Rs.3,000/- to the Complainant payable by these Respondents jointly and severally under this head is proper and reasonable amount. Accordingly, it is granted. [/FONT]
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    [FONT=&quot] 20. Another claim of Complainant is for to award an amount of Rs.50,000/- for his mental sufferings. We not found proper and sufficient evidence to accept it. Hence, it is rejected. [/FONT]
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    [FONT=&quot] 21. As regards to claim of Complainant towards cost of litigation is concerned, we have considered the entire case of Complainant and circumstances behind it and we come to a conclusion that, granting an amount of Rs.2,000/- to the Complainant towards cost of this litigation is proper and reasonable amount. Accordingly, that amount is granted to him. [/FONT]
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    [FONT=&quot] 22. Lastly, the Complainant prayed for to grant an interest @ 24% p.a .on the amount of Rs.80,528/-. There are no special circumstances out coming to grant such big rate of interest. We have taken note of entire claim of Complainant and other circumstances as evidenced and we came to a conclusion that, grating interest @ 9% p.a. on the above said total sum from the date of this complaint till realization of full amount will suffice to meet out the ends of justice. Accordingly, that rate of interest is granted. Hence, we answered Point No.2 accordingly. [/FONT]
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    [FONT=&quot]Point No.3: - [/FONT]
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    [FONT=&quot]23. In view of findings on Point Nos.1 & 2, we pass the following; [/FONT]
    [FONT=&quot]//ORDER//[/FONT]
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    [FONT=&quot]The complaint filed by the Complainant is partly allowed with cost. [/FONT]
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    [FONT=&quot]The Complainant is entitled to recover total sum of Rs.71,300/- (rupees seventy one thousand three hundred only) including cost from the Respondent No.1 and 2 jointly and severally. [/FONT]
    The Complainant is entitled to recover interest @ 9% p.a. on Rs.71,300/- from the date of this complaint i.e. 02/02/2009 till realization of full amount from the Respondent Nos.1 and 2 jointly and severally.



    [FONT=&quot]The Respondent Nos.1 and 2 jointly and severally are hereby granted two months time from the date of this Judgment for to make the payment of total sum and interest as stated above to the Complainant. [/FONT]
  • adminadmin Administrator
    edited September 2009
    C. F. CASE NO.-CC/38/2008.

    PETITIONER =Vs. = O.P
    Uttam Ghosh, S/o Sanod Ghosh, 1) ICICI Lombard Gen. Ins. Co. Ltd.
    Bolpur Trisulapatti, Po & PS-Bolpur, Apejay House, 7th, 8th & 4th floor,
    Birbhum. Block-D, 15 Park St. Kol-16.
    2) ICICI Lombard Gen. Ins. Co. Ltd.
    Citi Plaza Bldg., City Centre
    Durgapur, Sayed Khudiram Sarani
    Dist. Burdwan. (3rd Floor)
    Durgapur-16
    3) City Motors, Suri Rabindra Pally,
    Auth. Agent of ICICI Gen. Ins.
    Co., PO & PS-Suri, Birbhum.

    PRESENT:-Shri S.K. Roy
    President.
    :- Shri M.K. Pal
    Member
    :- Smt.Bula Koley
    Member
    :: J U D G E M E N T ::
    Dated: 02.04.2009
    In short the complaint case is that the complainant has a vehicle “TATA SUMO” (Registration number not mentioned). Said vehicle was insured with the opp. Parties vide policy no. 3001/53395958449/00/000(period of insurance not mentioned). Said vehicle met with a road traffic accident (Date of accident not mentioned) at Burdwan near CAMRY hospital and damaged. He lodged a G.D.E. with Burdwan P.S. vide M.A case no.22/08 dt. 9/6/08. He preferred claim before the OP-2 on the basis of the assessment of the loss assessor appointed by the OP but the claim has been repudiated. Hence this case.
    The Opp. parties contested the case by filing a written version wherein they have taken a few legal objection, denied all the material allegation made in the petition of complaint and has stated that the complainant has violated the terms and conditions of the Insurance which was a “private car package policy” and used this vehicle for hire and reward, so the claim has been repudiated. The case merits dismissal.
    To prove the complaint case the complainant alone sworn and file an affidavit on evidence and a few documents marked exts.1 to 4. On the other hand one Mrs. Banhea Ray sworn and file a counter affidavit and a document marked ext. A to substantiate the defence case.
    Contd…/2
    -::2::-
    Points for consideration are:-
    1)[FONT=&quot] [/FONT]Is the case bad for defeat of parties?
    2)[FONT=&quot] [/FONT]Has there any deficiency in service on the part of the opp. Parties?
    3)[FONT=&quot] [/FONT]Is the complainant entitled to the reliefs prayed for?
    D E C I S I O N S
    Points No.1 to 3:- All the points are taken up together for the sake of convenience brevity.
    From the written version, counter affidavit. On evidence filed by the opp. Parties and the argument advanced by the Ld. Lawyer for them the financer of the vehicle should be impeded in this case as the vehicle has been pledged with the financer. So as per the rules and regulations of the OP ICICI Lombard vide caption – “IMT.7 – vehicles subject to endorsements hypothecation Agreement” from the extract of Indian Motor Tariff and has drawn my attention to said endorsement which runs as follows:-
    It is hereby declared and agreed that the vehicle insured is pledged to/hypothecated with ……………………….(hereinafter referred to as the “pledgee”) and it is further understood and agreed that the pledgee is interested in any monies which but for this Endorsement would be payable to the insured under this policy in respect of such laws or damage to the vehicle insured as cannot be made good by repair and/or replacement of parts and such monies shall be paid to the pledgee as long as they are the pledgee of the vehicle insured and their receipt shall be a full and final discharge to the insurer in respect of such loss or damage.
    But the policy certificate does not say so. Moreover there is no material in the record whether the loan amount has been repaid or not. The payment in terms of the above endorsement may be made to the pledgee when the vehicle is not repairable otherwise not. Herein this case the vehicle has been repaired. As such I am of the view that there is no defeat of parties in this case.
    As regard deficiency in service it is learnt from the materials on record and the argument of the Ld. Lawyers that the complainant no where in the petition of complaint has stated the validity period of the insurance and the number of the vehicle which was insured and the date on which the accident took place. I do not find any pleading or evidence about the date on which the accident was intimated to
    Condt…/3.
    -::3::-
    the insurer and the date on which surveyor Santunu Kundu was appointed and on what date he inspected the vehicle. Even there is no assessment certificate issued by any such assessor Santunu Kundu. There is also no pleading and evidence about the date on which the complainant preferred his claim. It is well settled that the burden lies upon him, who wants to assert something. So, the complainant has to prove the facts I have stated above which is lacking. But at the same time it is to keep in mind that the facts admitted need not be proved.
    In this case, the opp. Parties have admitted the happening of accident, issue of insurance policy for the vehicle, preference of claim for repair of the vehicle, but has not admitted the appointment of any surveyor named Santunu Kundu. Rather has stated that one Asok Kumar Khanuja inspected the vehicle and assessed the loss (Ext. A). Said Asok Kr. Khanuja assessed the loss at Rs.23374/- only. While the complainant has claimed an amount of Rs.58093/- against the assessment of Rs.72472/- made by Santunu Kundu. But in absence of any reliable and cogent evidence such claim of Rs.58093/- can not be acceeded to.
    The opp. Party has repudiated the claim on the ground of violation of the terms and conditions of the policy by using the vehicle for hire and reward. Unfortunate to say that there is no iota of evidence to prove such an allegation. Accordingly I am unable to accept this plea. Having no cogent reason and proof thereof for the alleged violation of the terms and conditions of the plea the insurer was deficient in its service to the customer/consumer by not disbursing the assessed amount of loss as assessed by his appointed surveyor Asok Kr. Khanja.
    In view of my above discussions the complainant is entitled to the assessed amount of Rs.23374/- for loss caused to the vehicle and for harassment by not allowing the assessed amount the complainant is entitled to compensation and I think that an amount of Rs.2000/- towards compensation will meet the ends of justice together with the above amounts litigation cost of Rs.500/- should be allowed.
    The points are answered accordingly. In the result the complaint succeeds in part on contest against the opp. Party ICICI Lombard General Insurance Co. Ltd. and dismissed against the OP no.3.


    Contd…/4.
    -::4::-
    Fees paid are correct.
    Hence, it is
    Ordered
    That the complaint is allowed in part on contest against the Insurance Co. i.e. ICICI Lombard General Insurance Co. Ltd.
    The complainant is allowed Rs.23374/- towards the loss for repair of the vehicle, Rs.2000/- as compensation and Rs.500/- as litigation cost.
    The Op Insurance Co. is directed to pay the awarded amounts within 30 days of this order failing which the amounts shall carry interest @ 10% p.a. after the expiry for 30 days till payment. The case is dismissed against the OP no.3.
  • adminadmin Administrator
    edited September 2009
    Consumer complaint No.82/07
    Date of presentation: 28.3.2007
    Date of decision: 10.4.2009

    Rahul Sharma son of Jeevan Lal Sharma resident of village and PO Boda, Tehsil Palampur, District Kangra (HP)

    Complainant

    Versus

    1 ICICI Lombard General insurance Company Ltd. ICICI Towers Bandra-Kurla Complex, Mumbai 400051 through its Manager
    2. Shri Baldev Raj & Sons (Auto Division) authorised Dealer Hero Honda motors ltd. Palampur (HP)-176061
    3. Sh. Rajesh kumar, Surveyor, ICICI, Insurance company Navy House Industrial Area, Nagrota Bagwan, District Kangra

    Opposite parties

    Complaint under section 12 of the Consumer Protection Act, 1986

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


    For the complainant: Sh. Manu Bharti, Advocate
    For the opposite Party No.1: Ms. Rajni Katoch, Advocate
    For O.P. No.2 Sh. Vishal Katoch, Advocate
    O.P.No.3 already exparte

    ORDER

    A.JASWAL, PRESIDENT (ORAL)

    Briefly stated, the case of the complainant is that he is a registered owner of Motor Cycle ( Hero Honda) bearing registration No.HP-37-A-4620 and that the same was got insured with opposite party No.1. It is asserted that during the subsistence of the Insurance Policy, the said Motor cycle had met with an accident on dated 14.4.2005 at Palampur. Upon this, opposite party no.1 was accordingly informed. On its advice, he got the motor cycle repaired from opposite party No.2 and paid Rs.2348/- and Rs.1999/- respectively. Thereafter, after completing necessary formalities, he submitted his claim before opposite party no.1, but it failed to settle the same and thus committed deficiency in service.


    2. The case of the complainant has been resisted and contested by the opposite party No.1 by asserting that there is no deficiency in service on the part of the answering opposite party. Since, the complainant has failed to file insurance Policy or its number before the opposite party, the answering opposite party is not liable to pay anything to the complainant. The other averments have been denied.


    3. The opposite party no.2 by filing its reply has asserted that the vehicle of the complainant has been repaired and a sum of Rs.4357/- has been charged from him as per bill. Opposite party No.3 did not appear before the Forum, and was proceeded against exparte.


    4. This Forum on 12.3.08 framed the following points for determination:-
    1. Whether O.P committed deficiency in service, as alleged? OPC
    2. Whether the complaint is not maintainable, as alleged? OPOPs

    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.1: Partly in affirmative
    Point no.2: No
    Relief: The complaint is partly allowed as per operative part of the order.

    REASONS FOR FINDINGS
    POINTS No.1 and 2

    5. Both these points are inter connected and inter linked, hence are taken up together for determination, in order to avoid repetition in discussion and for the sake of brevity. Learned counsel for the complainant has argued that the opposite party No.1 has failed to settle his claim till date and thus committed deficiency in service.

    6. On the other hand, the learned counsel for the opposite party No.1 has argued that since the complainant has not submitted the copy of insurance Policy or number thereof, the opposite party No.1 is not liable to pay anything to the complainant. Learned counsel for the opposite party No.2 has argued that the opposite party no.2 had only repaired the vehicle and is not liable to pay anything to the complainant.

    7. To appreciate the arguments of the learned counsel for the parties, the entire record available on the file was gone into in detail. The complainant has filed his affidavit, Ex.CW1, in which he has re-counted the averments as made in the complaint. From the material on record, it stands proved that during the subsistence of the Insurance Policy, the motor cycle of the complainant had met with an accident and for the repair of the same, he had incurred a sum of Rs.4367/-. We are of the view that the opposite party No.1 was under legal obligation to pay the said amount to the complainant, but it failed to pay the same. The, aforesaid act of the opposite party No.1, in our considered view, tantamounts to great deficiency in service.

    8. The only plea of the opposite party No.1 is that the complainant has failed to supply the copy of Policy or number thereof, is rejected being devoid of any force. The complainant has placed on record; copy of cover note issued by the opposite party No.1, Annexure C-1, but the opposite party No.1 did not opt to consider the case of the complainant, even during the proceedings of the present complaint. We are of the view that since the opposite party no.1 is providing public utility services, they cannot deny the genuine claim of the complainant. Thus, the opposite party No.1 has committed deficiency in service. So far as opposite parties no.2 and 3 are concerned, the complainant has not adduced any cogent and convincing evidence to prove that they have also committed deficiency in service.


    9. Now, how this deficiency can be cured? We are of the view that the ends of justice will be met, in case the opposite party No.1 is directed to pay Rs.4367/- to the complainant within 30 days after the receipt of copy of this order. Due to deficiency in service, the complainant has also suffered mental pain, agony and inconvenience and the ends of justice will be met in case the opposite party no.1is directed to pay compensation, which is quantified at Rs.2000/-. Hence, point no.1 is answered partly in affirmative.

    12. No other point argued or urged.


    Relief


    13. In view of our findings on point No.1 above, the complaint is partly allowed and we order the opposite party No.1 to pay Rs.4367/- to the complainant within 30 days after the receipt of copy of this order, failing which it will carry interest @ 9% per annum from the date of complaint, till its realization. The opposite party no.1 is also directed to pay compensation to the tune of Rs.2000/- coupled with litigation costs of Rs.1500/-. The complaint against opposite parties no.2 and 3 is dismissed
  • adminadmin Administrator
    edited September 2009
    Complaint Case No.226/ 2008
    Date of Institution 26-8-2008
    Date of Decision 30-4-2009


    Baldev Singh son of Sh.Lachman resident of village and Post Office Kummi, Illaqua Balh, Tehsil Sadar, District Mandi, H.P.

    …Complainant


    V/S

    ICICI Lombard General Insurance Ltd Home Finance Co. Ltd Chaman Commercial complex ,Seri Bazar, Mandi Town , H.P. through its Branch Manager.

    …..Opposite party


    For the complainant Sh.Mahesh Chopra, , Advocate
    For the opposite party Sh. Sandeep Bhardwaj, Advocate

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

    ORDER.
    This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party .The case of the complainant is that he is registered owner of vehicle No. HP-32-1703 ( Tata Mobile-207) which was insured with the opposite party vide insurance policy No.3003/53392469/00/B00 for the period from 28-1-2008 to 27-1-2009. It has been alleged that the said vehicle met with an accident within the insured period and intimation of the accident was also given to the opposite party well in time . The vehicle was damaged in the accident. The opposite party had deputed a surveyor for inspection of the vehicle at the site of accident and for assessment of the damage . After inspection of the vehicle , the complainant had removed the vehicle from the site of the accident to the workshop at Nerchowk/ Lunapani for necessary repair. The complainant spent Rs.35,000/- for repair and replacement of the parts of the vehicle and submitted all the bills to the opposite party for settlement of the claim, but the claim has been repudiated by the


    Opposite party vide letter dated 25-7-2008 wrongly and unlawfully on mis- understanding and mis-appreciation of documents as also on the ground of invalid license . The complainant had alleged that the repudiation of the claim is on flimsy reasons and amounts to unfair trade practice The complainant had further alleged that he has suffered mental torture and harassment and claimed R.10,000/- in lump sum besides a sum of Rs.35,000/- spent on repair. On these facts , the complainant has filed the present complaint.


    2. The opposite party resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable and that the complainant is guilty of mis- representation and suppression of the material facts . On merits , the complainant has admitted the insurance of the vehicle in question . The opposite party has also admitted that after receipt of information of the accident of the vehicle , it had deputed Surveyor to make survey and assess the loss. The surveyor has assessed the loss subject to terms condition, limitations and exception of the insurance policy to the tune of Rs.10,600/-. The opposite party had denied that the vehicle was inspected by the surveyor at the site of the accident and in fact he surveyed the vehicle at M/S Shivam Denting and Painting , Bhangrotu. The complainant had misrepresented and suppressed the material facts by stating that the report has been prepared at site of accident . It had been denied that the vehicle was inspected at the site of the accident. It has been averred that the repudiation of the claim is legal .The opposite party had prayed for dismissal of the complaint.


    3 We have heard the ld. counsel for the parties and have carefully gone through the record. As per the registration certificate adduced in evidence by the complainant the vehicle in question is a light goods vehicle. According to the complainant the vehicle was being driven by him at the time of the accident and has also filed his own driving license and the perusal of which shows that it was issued on 12-10-2004 by Motor Licensing Authority Mandi and was valid to drive light motor vehicle ( non transport) up to 15-8-2019. The driving license of Sh. Baldev Ram complainant was also endorsed for driving light motor vehicle , Transport with effect from 12-12-2008. However, the accident had taken place on 2-7-2008. Hence complainant Baldev Singh who was on the wheel of the vehicle at the time of the accident was only authorized to drive light motor vehicle , non transport as per driving license filed by him . The opposite party i.e. the insurance company had repudiated the claim of the complainant on the ground that aforesaid driving license possessed by the complainant/ driver was not a valid driving license as according to the opposite party since the vehicle in question is light goods vehicle, it falls under the category of “transport vehicle” as per Motor vehicles Act ,1988. and driving license possessed by the driver was not endorsed to drive transport vehicle.


    4 Now the question which arises for consideration by this Forum is as to whether the complainant/ driver was holding a valid and effective driving license at the time of the accident. As discussed hereinabove , the vehicle was being driven by Baldev Singh complainant and he was only authorized to drive light motor vehicle ( non transport) at the time of the accident . At this stage, it would be relevant to refer to the definition of the transport vehicle as defined in section 2(47) of the Motor Vehicles Act,1988 which reads as under:-
    (47) “ transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.


    5 As per the registration certificate, the vehicle in question is a “light goods vehicle” .Since it is a goods vehicle therefore , according to section 2(47) of the Motor Vehicles Act,1988, it falls under the category of a
    “ transport vehicle”. As per section 3 of the Motor Vehicles Act,1988 , a specific endorsement is necessary on the driving license for driving a transport vehicle. However, there is no such endorsement on the driving license of the complainant


    Sh. Baldev Singh that he was authorized to drive transport vehicle at the time of the accident .

    In a case titled
    as New India Assurance Co. vs Prabhu Dayal 2008(1)CPC-239 heavy transport vehicle met with an accident and damaged and person driving the vehicle was holding license to drive light motor vehicle only and not heavy transport vehicle. The Hon’ble Apex Court in that case held that the driver was not competent to drive heavy transport vehicle in the absence of valid driving license in view of sections 2,10,15 and 27 of the Motor Vehicles Act 1988 . Para No.29 and 33 of the aforesaid judgment reads as under:-

    “ 29.We find considerable force in the submission of the learned counsel for the insurance company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under clause (47) of section 2 of the Act. Section 3 , therefore required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram, Narain was allowed to ply transport vehicle. On the contrary the case of the complainant was that it was Mohd Julfikar who was driving the vehicle. To us , therefore the District Forum was right in holding that Ram Narain could not have driven the vehicle in question.
    ………………………………………………………..
    33 In the present case all the facts were before the District Forum. It considered the assertion of the complainant and defence of the insurance company in the light of the relevant documentary evidence and held that it was established that the vehicle which met with an accident was a transport vehicle. Ram Narain was having a licence to drive Light Motor Vehicle only and there was no endorsement as required by Section 3 of the Act read with Rule 16 of the Rules and Form No.6. In view of necessary documents on record , the insurance company was right in submitting that Ashoke Gangadhar does not apply to the case on hand and the insurance company was not liable.”


    6 In a recent judgment the Hon’ble Apex court in the case titled Oriental Insurance Co. Ltd vs Angad Kol and others 2009(2)418 Recent Apex Judgments , a goods carriage vehicle met with an accident causing death of a lady and its driver was possessing driving license to ply light motor vehicle only. The Hon’ble Apex court had held that the driver did not held a valid and effective driving license for driving a goods vehicle Relevant portion of para No.10 of the order is reproduced herein below:-

    “The distinction between a “light motor vehicle” and
    “transport vehicle” is therefore evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same a distinct licenses is required to be obtained . The distinction between a “transport vehicle “ and passenger vehicle can also be noticed from section 14 of the Act. Sub section (2) of Section 14 provides for duration of a period of three years in case of an effective license to drive a transport vehicle where as in case of any other license , it may remain effective for a period of 20 years .

    In the present case also the vehicle is admittedly a goods vehicle and it falls under the category of a “transport vehicle”. Sh. Baldev Singh complainant who was on the wheel of the vehicle at the time of accident was only authorized to drive light motor vehicle ( non transport ) as per driving license adduced by the complainant himself and in the absence of specific endorsement on the driving license to drive “ transport vehicle” it cannot be said that he was having a valid and effective driving license at the time of accident and we hold that the repudiation of the claim of the complainant by the opposite party is genuine and it does not amount to deficiency in service .


    7 In view of the legal position and in view of what has been discussed hereinabove, the complaint fails and the same is hereby dismissed with no order as to costs
  • adminadmin Administrator
    edited September 2009
    Before the District Consumer Disputes Redressal Forum, Mandi, H.P.

    Complaint Case No.87 /2008
    Date of Institution 27-3-2008
    Date of Decision 30-4-2009


    Vina Thakur wife of Sh. Hem Raj resident of village Aut, District Mandi, H.P. through her General Power of attorney Sh. Hem Raj son of Sh. Kishori Lal resident of village Aut, Post Office Aut, District Mandi,



    …Complainant

    V/S

    ICICI. Lombard General Insurance Company Ltd Sahib Complex of Ist Floor Plot No.118/9 College Road , Mandi District Mandi, H.P.

    …..Opposite party

    For the complainant Sh. Mayur Parkash Sharma, Advocate
    For the opposite party Sh Amar Singh . Thakur, 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 she is the registered owner of ( SKT-1613 Turbo ) vehicle bearing registration No. HP-66-7400 as per the registration certificate and permit Annexures C-1 and C-2. The complainant averred that she being simpleton lady could not prosecute the complaint and authorized her husband Sh. Hem Raj vide General Power of attorney dated 11-2-2008. The complainant had insured the said vehicle with the opposite party with effect from 29-3-2007 /31-3-2007 to 28-3-2008 as per insurance cover note Annexure C-3 in the sum of Rs.9.89 lacs. It had been averred that on 24-11-2007 at about 8.30 AM aforesaid truck ,met with an accident at village Bharas , Tehsil Chachiot at Gohar which was firstly gazed by local resident at 7 AM on 24-11-2007 and reported the matter to the police at Gohar and first information report was recorded. Thereafter the matter was investigated by the police and during investigation it came to notice that the vehicle was driven at the relevant time by Sh. Hari Singh son of Sh. Devi Singh who had run away from the place of accident taking undue advantage of night hours and thereafter challan has been constituted under section 279 and 304-A IPC against Sh. Hari Singh . First information report and investigation report are annexure C-4 and C-5. The matter was reported to the opposite party and documents were also submitted to it. The opposite party had appointed Surveyor for investigation who has recorded the statement at his own in the letter pad of the husband of the owner of the vehicle under the garb of settlement of the claim and got signed without explaining the statement in Hindi as the husband of the owner is under middle and does not know English. That the vehicle was under the Hire Purchase agreement with ICICI bank being Financer and monthly instalment at the rate of Rs.23,550/- has regularly been paid up to November 2007 right from the date of the purchase i.e. March 2007. The complainant has averred that due to accident of the vehicle and non settlement of the claim, instalment could not be deposited and vehicle has been delivered to the ICICI Bank as per their directions to their registered office at Dehar on 27-12-2007 and the Financer had issued pre sale notice dated 8-1-2008 to the complainant owner . The complainant alleged that she had submitted all the documents to the opposite party but despite that the insurance company is denying the indemnity on unreasonable , arbitrary and illegal grounds which amounts to deficiency in service as well as unfair trade practice . On 12-2-2008 the opposite party was served with legal notice but the same was not responded . That the cause of action had accrued to the complainant on 24-11-2007 and thereafter on 29-1-2008 on which date the claim has been repudiated illegally and arbitrarly. On these allegations, the complainant had sought a direction to the opposite party to pay Rs. Rs.9,99,000/- alongwith interest at the rate of 15% per annum till date .


    2. The opposite parties resisted the complaint by raising preliminary objections that the complaint is not maintainable and sustainable in the eyes of law , that the complainant has violated the terms and conditions of the insurance policy and as such the complainant is having no insurable interest and that the complainant has not come with clean hands before this Forum .On merits , the opposite party had admitted the contents of the complaint to the extent of accident of the vehicle and lodging of First Information Report It has been denied that Sh. Hari Singh was driving the vehicle at the time of accident and in fact Sh. Bhag Singh alias Prema son of Sh. Birbal Ram who died in the above accident was driving the vehicle but since he was not holding valid and effective driving license , the complainant in connivance with the police officials has later on manipulated the story and shown one Sh. Hari Singh as driver of the vehicle only to grab the insurance amount . The opposite party had averred that the surveyor has recorded the statement of husband of the complainant as per his actual and factual version which was further explained to him . It has been averred that the complainant had violated the terms and conditions of the insurance policy and in view of this fact the complainant is not liable to be indemnified by the opposite party. The opposite party had prayed for dismissal of the complaint


    3. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.


    4. We have heard the ld. counsel for the parties and have carefully gone through the record. Be it stated that the opposite party has not denied the factum of insurance of the vehicle in question and its accident. The opposite party had also not denied that the information in this respect was given to it by the complainant and it had appointed surveyor to assess the loss caused to the vehicle in question. It is a matter of record that one Sh. Bhag Singh @ Prema son of Sh. Birbal died in the accident . According to the complainant the vehicle was being driven by Sh. Hari Singh at the time of accident whereas according to the opposite party the vehicle was being driven by Sh. Bhag Singh and since he was not possessing valid and effective driving license to drive the vehicle the claim of the complainant was repudiated on this ground alone . On analyzing the rival submissions as well as the material available on record the short controversy needs redressal in this complaint is as to whether the opposite party has rightly repudiated the insurance claim lodged by the complainant on the ground that the vehicle was being driven by Sh. Bhag Singh and not by Sh. Hari Singh as alleged by the complainant.


    5 The onus to prove that Sh. Bhag Singh @ Prema was driving the vehicle at the time of accident and the same was not being driven by Sh. Hari Singh lies on the opposite party. In this respect , the opposite party had placed reliance upon investigation report of Sh.A.P. Singh which is undated . As per the insurance company it had deputed Sh.A.P.Singh G.I.C. Claim Investigator to carry out investigation with respect to the accident in question who in his report concluded that the insured had planted Sh. Hari Singh as driver in place of Sh. Bhag Chand alias Prema who might not be having valid driving license to drive the category of vehicle in question . According to the Investigator , he had conducted thorough investigation at the spot of accident near Bheraj and also conducted discrete enquiries from the residential area of the insured and from the Police Station Gohar. He is also stated to have recorded the statements of husband of the complainant Sh. Hem Raj and one Sh. Khime Ram Office Secretary Truck Union Aut . Photostat copies of aforesaid statements have also been placed on record alongwith first information report No.155/2007 dated 24-11-2007, of Police Station Gohar U/S 279,304-A IPC .We have carefully scrutinized the report of the Investigator Sh.A. P. Singh and ,in our opinion, the same cannot be relied upon being un-supported by any cogent evidence on record . It was incumbent upon the opposite party to have proved all the facts which are alleged in the report of the investigator, however it has failed to do so. No affidavit of the investigator has been adduced in evidence . Moreover investigation report is unsupported by the affidavits of persons on the basis of whose statements report was prepared . The Investigator had only recorded the statement of witnesses but had failed to procure their affidavits and in the absence of the affidavits of these persons this forum is not satisfied as to whether these statements were actually given by them . Moreover, the husband of the complainant Sh. Hem Raj had filed affidavit dated 22-7-2008 before this Forum wherein he has deposed that the opposite party had appointed surveyor for investigation who recorded his statement in English in his letter pad under the garb of settlement of the claim and got signed without explaining the statement in Hindi as he is under Middle and does not know English and the act and conduct of the opposite party’s surveyor is quite unfair , arbitrary and also amounts to misrepresentation and a legal notice dated 12-2-2008 had also been served upon the opposite party explaining each and everything regarding recording of statement by the Investigator . Therefore, in view of the affidavit filled by the husband of the complainant , the opposite party should have filed counter affidavit of the Investigator to show that he recorded his statement out of his own free will but the same has not seen the light of the day . Therefore , also the report of the investigator cannot be relied upon . The ld. counsel for the opposite party further contended that in the First Information report also it has been recorded that one Sh. Bhag Singh was driving the vehicle at the time of accident and therefore the opposite party was right in repudiating the claim of the complaint . However, this submission of the ld. counsel for the opposite party is devoid of any force because after recording the first information report , the matter was thoroughly investigated by the Police and during investigation they came to know that the vehicle was being driven by Sh. Hari Singh son of Sh.Devi Singh . The complainant has also placed on record photocopy of charge sheet filed under section 173 Cr.P.C. against Sh. Hari Singh in the court of Ld. SDJM Gohar . The perusal of the charge sheet shows that the police had carried out the investigation with respect to the accident in question and their investigation revealed that at the time of the accident Sh. Hari Singh was driving the vehicle in question. The charge sheet has been filed by Investigating agency of the State in the discharge of its official duty and nothing has been shown by the opposite party as to why the police officers in the discharge of official duty would file charge sheet against a person who was not driving the vehicle at the material time . Moreover the investigation carried out by the police officials cannot be ignored because they are the first ones to have reached the spot and gathered information. The case of the opposite party is that the complainant has manipulated the story later on in connivance with the police officials to show that Sh. Hari Singh was driver of the vehicle . However, no material has been placed on record by the opposite party to prove this fact. No
    other evidence to the contrary has been filed by the opposite party in support of their case that Sh. Bhag Chand was driving the vehicle at the time of accident . Therefore in view of the above facts and circumstances of the case it would not be improper to conclude that Sh. Hari Singh was driving the vehicle in question at the time of the accident . The complainant has also placed on record driving license of Sh. Hari Singh Annexure C-6. No evidence has been filed by the opposite party to show that aforesaid driving license possessed by Sh. Hari Singh is invalid. Hence in our opinion the opposite party has repudiated the insurance claim illegally and arbitrarily which act and conduct on the part of the opposite party is gross deficiency in service.


    6 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by her due to accident of the vehicle. The complainant in her complaint had claimed insurance sum which is Rs.9.89,000/-.On the other hand the opposite party has placed on record Motor Interim Surveyor report of Sh. Mohinder K Sharma dated 14-12-2007 which depicts that the estimated loss was Rs.9,91,705 and indemnity assessed was to the tune of Rs.6,47,774/-which is payable subject to the terms and conditions of the policy . No final survey report has been placed on record by the opposite party. There is no other concrete material on record regarding
    the assessment of the loss caused to the vehicle . The complainant had also not adduced any satisfactory evidence contrary to the report of Surveyor . Hence this forum is left with no other alternative except to take into consideration the interim survey report of Sh. Mohinder K Sharma 14-12-2007 for the assessment of the loss caused to the vehicle in question .Moreover the aforesaid report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons. The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kiran Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is at Rs.6,47,774.80 paise on repair basis


    7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.6,47,774.80 paise alongwith interest at the rate of 9% p.a. from the date of filing of the complaint till realization to the complainant .The opposite party is further directed to pay Rs.5,000/- as compensation on account of harassment and Rs.2000/- as costs of litigation.
  • adminadmin Administrator
    edited September 2009
    Before the District Consumer Disputes Redressal Forum, Mandi, H.P.

    Complaint Case No.241/2008
    Date of Institution 6-9-2008
    Date of Decision 30-4-2009

    Sharifa Bibi w/o Safar Ali village Masar Post Office Shivabadar Tehsil Sadar, District Mandi, H.P.



    …Complainant


    V/S

    ICICI Lombard General Insurance Ltd through its Manager ,C/0 Sahib Complex Ist Floor Plot No.118/9 College Road, Mandi, H.P.
    …..Opposite party


    For the complainant Sh. Bhupinder Singh , Advocate
    For the opposite party Sh. Sandeep Bhardwaj, 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 was owner of buffalo which was got insured with the opposite party vide policy No. 4057/0000098 and tag No 145594 Annexure C-1 for the period from 21-3-2008 to 20-3-2008. During the currency of the policy, the buffalo died at Shivabadar . The complainant reported the matter to the Veterinary Hospital Shivabadar and post mortem of the dead animal was conducted there. It has been averred that the matter was thereafter reported to the opposite party for settlement of the claim and all the requisite documents were also supplied. It has been alleged that the opposite party has repudiated the claim vide letter dated 12-8-2008 Annexure C-2without any reasonable ground . The complainant has alleged that the repudiation of the claim is arbitrary, without application of mind and amounts to unfair trade practice as well as deficiency in service on the part of the opposite party. On these facts , the complainant has sought a direction to the opposite party to pay Rs.15,000/- , the assured sum of the cattle with interest at the rate of 12% PA from the date of death and also to pay Rs.5500/- as litigation charges and Rs.5000/- as compensation.


    2. The opposite party resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable that the opposite party has insured the cattle subject to certain limitations , exceptions and conditions and if these terms and conditions are not complied with ,the insured is not entitled for any compensation, that negligence is one of the exceptions and the same is not covered under the policy of insurance, that the claim has been repudiated after having given a deep thought to it, that the animal had died in an accident i.e. falling from a cliff while leaving the buffalo for grazing and it was the duty of the owner to keep the animal away from the cliff and the owner was negligent while leaving the buffalo for grazing . Also it was the duty of the insured to make better arrangements to feed the animal in tough circumstances . On merits , it has been admitted that the cattle was insured with it and rest of the allegations have been denied . It has also been averred that the matter has not been forthwith reported to the Doctor Veterinary Hospital Shivabadar. It has further been averred that the claim submitted by the complainant was rightly repudiated . It has been averred that no cause of action accrued in favour of the complainant to file the present complaint . The opposite party had prayed for dismissal of the complaint.


    4. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.


    5. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . It is admitted case of the opposite party that the animal in question was insured with it and it died during the currency of the insurance policy. The identity of the animal is also not in dispute . However , the claim of the complainant has been repudiated only on the ground that the animal died due to the negligence on the part of its owner as it died of an accident on account of falling from a cliff and it was the duty of the owner to keep the animal away from cliff .


    6 Now the question which arises for consideration before this forum is as to whether the opposite party was justified in repudiating the claim only on this ground . The onus was upon the opposite party to prove that the animal died due to negligence on the part of its owner . The opposite party had placed reliance on the report of Veterinary Doctor Annexure R-5 and Annexure R-6, death certificate Annexure R-7 , post mortem report Annexure R-8 to prove its case wherein it has been recorded that the animal died because of “falling from height” However, in our opinion these documents are not sufficient to establish negligence on the part of the owner of the animal. In the aforesaid documents , it has only been recorded that the animal died due to falling from height . However , no material has been placed on record by the opposite parties to show that the owner of the cattle was negligent . It was incumbent upon the opposite party to place on record statements of witnesses or their affidavits to establish negligence on the part of the complainant but the same had not seen the light of the day. There is no concrete material on record on the basis of which it can be concluded that the complainant was negligent .In the absence of any evidence with respect to negligence on the part of the complainant, we have no hesitation to conclude that the complainant has proved that the opposite party had been deficient in providing service. As per the cover note Annexure C-1,the cattle was insured in the sum of Rs..15,000/- on 21-3-2008 with the opposite party. Hence the complainant is held entitled to Rs.15,000/- on account of death of the insured cattle.


    7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.15,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by him due to deficiency in service and also to pay a sum of Rs.1500/- as costs of litigation.
  • adminadmin Administrator
    edited September 2009
    Complaint Case No.240/2008
    Date of Institution 6-9-2008
    Date of Decision 30-4-2009

    Jaina Bibi wife Barkat Ali village Masar, , Post Office Shivabadar Tehsil Sadar, District Mandi, H.P.



    …Complainant


    V/S

    ICICI Lombard General Insurance Ltd through its Manager ,C/0 Sahib Complex Ist Floor Plot No.118/9 College Road, Mandi, H.P.
    …..Opposite party


    For the complainant Sh. Bhupinder Singh , Advocate
    For the opposite party Sh. Sandeep Bhardwaj, 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 was owner of buffalo which was got insured with the opposite party vide policy No. 4057/0000098 and tag No 145590 Annexure C-1 for the period from 21-3-2008 to 20-3-2008. During the currency of the policy, the buffalo died at Shivabadar . The complainant reported the matter to the Veterinary Hospital Shivabadar and post mortem of the dead animal was conducted there. It has been averred that the matter was thereafter reported to the opposite party for settlement of the claim and all the requisite documents were also supplied. It has been alleged that the opposite party has repudiated the claim vide letter dated 12-8-2008 Annexure C-4 without any reasonable ground . The complainant has alleged that the repudiation of the claim is arbitrary, without application of mind and amounts to unfair trade practice as well as deficiency in service on the part of the opposite party. On these facts , the complainant has sought a direction to the opposite party to pay Rs.15,000/- , the assured sum of the cattle with interest at the rate of 12% PA from the date of death and also to pay Rs.5500/- as litigation charges and Rs.5000/- as compensation.
    2. The opposite party resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable that the opposite party has insured the cattle subject to certain limitations , exceptions and conditions and if these terms and conditions are not complied with ,the insured is not entitled for any compensation, that negligence is one of the exceptions and the same is not covered under the policy of insurance, that the claim has been repudiated after having given a deep thought to it, that the animal had died in an accident i.e. falling from a cliff while leaving the buffalo for grazing and it was the duty of the owner to keep the animal away from the cliff and the owner was negligent while leaving the buffalo for grazing . Also it was the duty of the insured to make better arrangements to feed the animal in tough circumstances . On merits , it has been admitted that the cattle was insured with it and rest of the allegations have been denied . It has also been averred that the matter has not been forthwith reported to the Doctor Veterinary Hospital Shivabadar. It has further been averred that the claim submitted by the complainant was rightly repudiated . It has been averred that no cause of action accrued in favour of the complainant to file the present complaint . The opposite party had prayed for dismissal of the complaint.
    4. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.
    5. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . It is admitted case of the opposite party that the animal in question was insured with it and it died during the currency of the insurance policy. The identity of the animal is also not in dispute . However , the claim of the complainant has been repudiated only on the ground that the animal died due to the negligence on the part of its owner as it died of an accident on account of falling from a cliff and it was the duty of the owner to keep the animal away from cliff .
    6 Now the question which arises for consideration before this forum is as to whether the opposite party was justified in repudiating the claim only on this ground . The onus was upon the opposite party to prove that the animal died due to negligence on the part of its owner . The opposite party had placed reliance on the report of Veterinary Doctor Annexure R-7 and Annexure R-8, death certificate Annexure R-9 , post mortem report Annexure R-10 to prove its case wherein it has been recorded that the animal died because of “falling from height” However, in our opinion these documents are not sufficient to establish negligence on the part of the owner of the animal. In the aforesaid documents , it has only been recorded that the animal died due to falling from height . However , no material has been placed on record by the opposite parties to show that the owner of the cattle was negligent . It was incumbent upon the opposite party to place on record statements of witnesses or their affidavits to establish negligence on the part of the complainant but the same had not seen the light of the day. There is no concrete material on record on the basis of which it can be concluded that the complainant was negligent .In the absence of any evidence with respect to negligence on the part of the complainant, we have no hesitation to conclude that the complainant has proved that the opposite party had been deficient in providing service. It has not been denied by the opposite party that cattle was insured in the sum of Rs.15,000/- Hence the complainant is held entitled to Rs.15,000/- on account of death of the insured cattle.
    7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.15,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by him due to deficiency in service and also to pay a sum of Rs.1500/- as costs of litigation.
  • adminadmin Administrator
    edited September 2009
    Shobha Ram son of Sh. Kaul Singh resident of village Nehra , Post Office Pandoh, Tehsil Sadar, District Mandi, H.P.

    …Complainant


    V/S

    ICICI Lombard, Mandi, Town , District Mandi, H.P. through its Branch Manager.

    …..Opposite party


    For the complainant Sh. Noor Ahmad, , Advocate
    For the opposite party Sh. Sandeep Bhardwaj, 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 jersey cow in the month of February 2008 in the sum of Rs.10,000/-. The said cow was insured with the opposite party under master cattle insurance policy vide cover note No.0058212 valid w.e.f. 1-2-2008 to 6-2-2011. Tag No. 58512 was allotted to the insured cattle . On 21-5-2008 due to some unknown disease the cow died and post mortem of the said cow was conducted on 23-5-2008 by the Veterinary Doctor at 11.30 AM. Death of the cow was duly intimated to the opposite party . The complainant submitted all the documents to the opposite party including the ear tag which was allotted to the cow by the opposite party for early settlement of the claim. It had been alleged that the opposite party had repudiated the claim of the complainant illegally and value of the cow has also been reduced by the opposite party without application of mind as well without any rhyme and reason. The complainant had suffered mentally due to the act of the opposite party. On these facts , the complainant has sought a direction to the opposite party to pay Rs.10,000/- , the assured sum of the cattle with interest at the rate of 12% PA from the date of death and also to pay Rs.10,000/- as compensation , and also to pay costs of complaint at Rs.5,000/-.
    2. The opposite party has resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable that the opposite party has insured the cattle subject to certain limitations , exceptions and conditions and if these terms and conditions are not complied with ,the insured is not entitled for any compensation, that negligence is one of the exceptions and the same is not covered under the policy of insurance, that the cattle died due to negligence on the part of the complainant as no treatment was given to the cattle under insurance . The disease which was diagnosed by the doctor is not an incurable disease and it is not such a disease which did not give time for the treatment . It has been averred that if the cattle had been treated in time it could have survived as the cattle fell ill on 16-5-2008 and died on 21-5-2008. No treatment was given to the cattle as per the post mortem report which shows negligence of the owner , that the complainant is guilty of suppression of material facts , that the complainant has misrepresented the facts and played fraud upon the opposite party simply to extract money from it and that the complaint is not maintainable as its contents are contradictory. On merits , the opposite party had denied the insurance of the cattle with it . The opposite party has denied the contents of para No.1 to 5 of the complaint in totality. The opposite party had prayed for dismissal of the complaint.
    4. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.
    5. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . It is admitted case of the opposite party that the animal in question was insured with it and it died during the currency of the insurance policy. The identity of the animal is also not in dispute . However , the claim of the complainant has been repudiated only on the ground that the animal died due to the negligence on the part of its owner as no treatment was given to the animal .
    6 Now the question which arises for consideration before this forum is as to whether the opposite party was justified in repudiating the claim only on this ground . The onus was upon the opposite party to prove that the animal

    died due to negligence on the part of its owner . The opposite party had placed reliance on the photocopies of treatment certificate issued by Veterinary Doctor Annexure R-2 as well as post mortem report Annexure R-4 to prove its case wherein it has been recorded “no treatment was given to the animal. However, in our opinion these documents are not sufficient to establish negligence on the part of the owner of the animal. It was incumbent upon the opposite party to place on record the original treatment certificate as well as post mortem report and also the affidavits of the concerned veterinary Doctors who had issued the said certificates to establish that no treatment was given to the animal during the period of illness but the same had not seen the light of the day. There is no concrete material on record on the basis of which it can be concluded that the complainant was negligent in not giving treatment to the animal during the period of illness .In the absence of any satisfactory evidence with respect to negligence on the part of the complainant, we have no hesitation to conclude that the complainant has proved that the opposite party had been deficient in providing service. As per the cover note Annexure C-1,the cattle was insured in the sum of Rs.10,000/- on 7-2-2008 with the opposite party. Hence the complainant is held entitled to Rs.10,000 /- on account of death of the insured cattle.
    7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.10,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by him and also to pay a sum of Rs.1,500/- as costs of litigation.
  • adminadmin Administrator
    edited September 2009
    consumer case(CC) No. CC/08/187

    Kiran Bala
    ...........Appellant(s)
    Vs.

    ICICI Prudential Life Insurance Co Ltd.

    ICICI Prudential Life Insurance Co Ltd.
    ...........Respondent(s)

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


    Complainant(s)/Appellant(s):


    OppositeParty/Respondent(s):


    OppositeParty/Respondent(s):


    OppositeParty/Respondent(s):


    Kiran Bala W/o Sh.Raj Kumar Manchanda, Advocate, Sunam Road, Bhikhi, Tehsil and District Mansa ..... Complainant.


    VERSUS


    1.ICICI Prudential Life Insurance Company Limited, ICICI Pure Life Towers, 1089, Aapa Sahib Maratha Marg, Prabha Devi, Mumbai- 400 025.

    2.ICICI Prudential Life Insurance Company Limited, Branch Water Works Road, Mansa through its Branch Manager. ..... Opposite Parties.


    Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.A.P.S.Sidhu, Advocate counsel for the complainant. Sh.G.K.Mangla, Advocate, counsel for the opposite parties. Quorum: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S. Dhanoa, President.

    This complaint has been filed, by Smt.Kiran Bala wife of Sh. Raj Kumar Manchanda, a resident of Bhikhi, against ICICI Prudential Life Insurance Company Limited, Mumbai and Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act') giving them direction that they shall pay the damages in the sum of Rs.50,000/- to her for revocation of insurance policy and a sum of Rs.50,000/- on account of compensation for mental and physical harassment and litigation expenses


    Contd........2 :


    2 : in the sum of Rs.5000/- . 2. Briefly stated, the case of the complainant is that she has deposited a sum of Rs.25,000/- in cash with the opposite parties for issuance of two life insurance policies. The opposite parties issued Policy No.06771212 dated 22.11.2007 in the name of the complainant and deducted an amount of Rs.18843/- on account of premium, but refused to issue policy No.07343863. Vide their letter dated 17.1.2008 received by the complainant on 30.4.2008, she came to know that the policy has been revoked by the opposite parties without assigning any reason. However, the opposite parties issued bank cheque in the sum of Rs.6157/- in the name of the complainant which was delivered to her by the Opposite Party No.2 on 30.4.2008. The said cheque was valid for a period of three months. The complainant served notice dated 21.4.2008 upon the opposite parties for payment of amount of 2nd policy bearing No.07343863 but the opposite parties have failed to take any action. The complainant again served notice vide letter dated 7.6.2008 upon the opposite parties for release of amount, but no action was taken by them even on said notice. The complainant also contacted the Opposite Party No.1 on telephone and sent him email. Due to the inaction on the part of the opposite parties and non-refund of the amount, the complainant could not invest the same in other policy and was deprived of use of the amount, as such, there is deficiency in service on the part of the opposite parties because of which she has been subjected to mental and physical harassment. Hence this complaint.



    3. On being put to notice, opposite parties filed written version, resisting the complaint, by taking preliminary objections; that the complainant is not a consumer, under them, within its definition, given in the Act, because her proposal and issuance of policy, has been rejected by the opposite parties, for her omission, to subject her to medical examination and that the complaint, being false and vexatious, is liable to


    Contd........3 :


    3 : be dismissed. On merits, it is admitted that complainant submitted the proposal for issuance of insurance policies vide her application dated 12.11.2007 on her own life under the “Company's Life Time Super Pension Plan” of insurance launched by the opposite parties for payment of sum of Rs.3 lacs as assured amount. It is submitted that the amount deposited by the complainant in the sum of Rs.6157/- on account of first premium was accepted by the opposite parties with the rider that the same will be accepted provided she undergoes medical examination required for processing the same, but she failed to undergo the additional tests because of which her proposal was rejected and amount deposited by her was sent through cheque dated 16.1.2008 vide letter dated 17.1.2008 addressed to the complainant, through the Opposite Party No.2, but she did not encash the same within the period of its validity. The opposite parties again sent her cheque dated 24.4.2008 in the same manner and in the same amount, but the said cheque was again not encashed by the complainant. The complainant failed to encash even the third cheque dated 8.11.2008 sent by the opposite parties. As such, there is no deficiency in service on their part and complaint is liable to be dismissed. The factum of issuance of policy No.06771212 under the “Company's Life Time Super Pension Plan” dated 22.11.2007 against deposit of premium in the sum of Rs.18843/- had been admitted by the opposite parties, but it is submitted that so far as policy in question is concerned, complainant cannot claim the same on account of her omission for not subjecting herself to medical examination and to encash the cheques sent for payment by the opposite parties. Rest of the averments, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.


    4. On being called upon by this Forum, to do so, the complainant tendered his affidavits, Exhibits C-1 and copies of documents Ext.C-2 to C-10 before closing evidence. On the other hand, learned counsel for the opposite parties has tendered in evidence, copies of documents, Ext.OP-1


    Contd........4 :


    4 : to OP-7, and closed evidence, on their behalf.


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



    6. At the out set, learned counsel for the opposite parties Sh.G.K.Mangla, Advocate, has submitted that as the proposal of the complainant, has not been accepted for issuance of policy No. 07343863, as such, she is not consumer under the opposite parties within the purview of its definition given in the Act, and her complaint is bound to fail on this technical ground alone.


    7. Learned counsel for the complainant Sh. A.P.S.Sidhu, Advocate, has submitted that as the amount has been accepted alongwith the application form by the opposite parties, as such, the complainant has become their consumer, of the insurance policy, which the opposite parties have not issued in arbitrary manner, as such, complaint is maintainable in the present form.


    8. We find merit in the argument advanced by the learned counsel for the complainant because the opposite parties in their written version have admitted that complainant filed application for issuance of insurance policy under the “Company's Life Time Super Pension Plan” launched by them and deposited the amount of initial premium. As such, in our opinion, even if, the offer made by the complainant is rejected by the opposite parties, because of any omission on her part, she falls within the ambit of Consumer because word 'service' defined in Section 2(1)(o) of the Act also includes “Potential Consumer”.


    9. Learned counsel for the complainant has further submitted that opposite parties have not sent any list of doctors on their panel so as to enable, the complainant to approach them and to subject herself for medical test and cheques were sent by them through Opposite Party No.2 after expiry of dates of their validity with the intention to harass the


    Contd........5 :


    5 : complainant, as such, there is deficiency in service on the part of the opposite parties because of which she has been deprived of her right to invest the money in other policy and to make use of the same. Learned counsel further argued that even the opposite parties are also not justified in rejecting the claim of the complainant without affording her opportunity of being heard, as such, they cannot escape the liability to pay damages and costs to her.


    10. On the other hand, learned counsel for the opposite parties has submitted that offer made by the complainant was rejected by the opposite parties after she failed to subject herself for additional medical test inspite of repeated instructions issued to her and she has failed to get the cheques sent to her encashed, as such, there is no deficiency in service on their part or on account of which opposite parties be burdened with costs and compensation, as prayed in the instant complaint.

    11. As stated in the earlier part of the order, the factum of submission of proposal form for issuance of policy under the “Company's Life Time Super Pension Plan” and deposit of amount of Rs.6157/- by the complainant on account of initial premium, is admitted by the opposite parties in their written version. As per copy of letter dated 10.11.2008, Ext.OP-7 addressed to the complainant, policy for issuance of which she submitted the proposal form was subject to fulfillment of requirements and terms and conditions of the scheme, as applicable from time to time. It is also provided therein that she should note that insurance cover would be effective only after the policy is issued. She was also issued refund cheque bearing No.011425 dated 8.11.2008 in the sum of Rs.6157/-, copy of which form part of Ext.OP-7. In letter dated 22.11.2007 Ext.OP-2, written to the complainant, she has been advised to approach Dr.Sat Paul Jindal, whose complete address of Mansa has been given therein. As such, we find merit in the case of the opposite parties that there is no deficiency in service on their part, so far as rejection of her claim to issue policy No.

    Contd........6 :


    6 : 07343863, is concerned.

    12. However, the opposite parties have acknowledged the receipt of letter sent to the complainant informing them that she was unable to encash the cheques sent by them on account of refund of amount of Rs.6157/- because they were delivered to her after expiry of period of their validity. As admitted by the opposite parties in their written version, three cheques were sent to the complainant on account of refund of amount of initial premium paid to her, but they have not examined any official posted in their office. They are supposed to maintain the record, viz. date of receipts of the cheques by the complainant and mode of their dispatch to her. As such, they have withheld the material documents, supposed to be in their possession on account of which adverse inference has to be drawn against them to the effect that had they brought on record, they must have proved against them. They have submitted the affidavit of Ms. Reshmi Bhattacharya, Ext.OP-4. As mentioned therein, she is working as Consumer (Legal Manager) in their Bombay office. Even in the said document, nothing has been mentioned regarding the dates of delivery of the cheques by the official posted in the office of Opposite Party No.2. The dates of delivery of the cheques are also not found mentioned in the written version. On one occasion, the cheques have been issued as per letter dated 3.5.2008 Ext.C-3 due to stoppage of payment. Therefore, we are of the considered opinion that opposite parties are deficient in rendering service to the complainant, so far as refund of the amount deposited by her in the sum of Rs.6157/-, is concerned. There is no evidence that complainant has got encashed the third cheque issued by the opposite parties for refund of the amount or the said payment has been received by her in any other manner. It is also not the plea of the opposite parties that the said amount stands refunded to the complainant. She has been deprived of the use of money for considerable time, as such, she is also entitled to payment of interest at the rate of 9 percent per annum from


    Contd........7 :



    7 : the date of deposit till date of payment. Since, we are inclined to award interest, therefore, amount of compensation cannot be awarded to the complainant at the same time. Moreover, consumer is to be compensated for deficiency in service and not for remote damages suffered by her because of deficiency in service on the part of service provider. However, the complainant is entitled to seek adequate amount on account of filing of the instant complaint because opposite parties failed to settle her claim inspite of service of notices. 13. For the aforesaid reasons, we partly accept the complaint and direct the opposite parties to refund a sum of Rs.6,157/- to the complainant with simple interest at the rate of 9 percent per annum from the date of deposit till the date of payment with further direction to pay a sum of Rs.1,000/- on account of costs, incurred by her for filing of instant complaint, within a period of two months from the date of receipt of the copy of this order. The liability of both the opposite parties to make the above payment shall be joint and several.
  • adminadmin Administrator
    edited September 2009
    C.C.No.79/2008
    Between:

    Gundabathula Vijay Kumar, S/o Adhinarayana Rao,
    51 years, D.No.4-1-12 (2), Abbireddy Street, Amalapuram. ..Complainant.
    A N D
    1.I C I C I Lombord General Insurance Company Ltd,
    I C I C I Bank Towers, Bhandra – Kurla Complex,
    Mumbai, 400-051.
    2.The Branch Manager, I C I C I Lombord General Insurance
    Company Ltd, Ayappa Towers, 2nd floor, Subashan Road,
    Opp Care Hospital, Suryaraopeta, Kakinada. ..Opposite parties.
    This case is coming on 20.3.2009 .for final hearing before this Forum and upon perusing the complaint, and other material papers on hand and upon hearing the arguments of Sri K V S Surya Narayana, Advocate for the complainant and Sri Barla Srinivasa Rao, Advocate for the opposite parties and having stood over for consideration till this day, this Forum has pronounced the following.
    O R D E R
    (By Smt.H V Ramana, Member)
    This is a complaint filed under section.12 of the Consumer Protection Act, 1986 by the complainant to direct the opposite parties to pay compensation of Rs.3,00,000/- and to award interest @24% P.A on Rs.21,260/- and to award costs.

    2. The case of the complainant as set out in the complaint in brief is that, the complainant agreed to take health insurance policy from the opposite parties and also paid an amount of Rs.21,262/- on 6.10.2007 through cheque. The sum assured under the health insurance policy is Rs.3,00,000/- under plan F. To that extent the opposite parties issued an acknowledgment. As per his statement of account the above cheque was encashed by the opposite party on 12.10.2007, but the complainant did not received the policy. He emailed the opposite party on 4.12.2007 for non issuance of the policy. Even after the lapse of two months the opposite parties replied him that the policy is under process. Again the complainant emailed the opposite party and enquired about the policy and they gave a reply that they are investigating the policy details. The complainant submits that even inspite of several mails the opposite party failed to send the policy. The opposite party informed the complainant that they dispatched the policy bearing No.4034/FPA/02469452/00/000 on 31.1.2008. But, the complainant has not received the above said policy from the opposite parties. The complainant got issued a legal notice Dt.1.4.2008 to the opposite parties directing to send the policy immediately or in alternative for payment of Rs.3,00,000/- towards damages. Both the opposite parties received the same and addressed a letter to the complainant, stating that the proposal of the complainant does not meet the underwriting criteria of ICICI Lombord or return the cheque for Rs.21,262/-. This itself shows the carelessness of the opposite parties and it amounts to deficiency in service. Hence, the complaint.


    3. The 2nd opposite party remained exparte and the 1st opposite party filed its written version denying all the material allegations made by the complainant. The opposite party submits that the policy business was outsourced to the private agency which is responsible to verify the eligible criteria of the proposals and all the E mail correspondence was done by the private agency. The proposal of the complainant has not accepted by this opposite party as it does not meet the underwriting criteria of the ICICI Lombord. It is a proposal from the complainant regarding the health insurance and it is not accepted by this opposite party and the contract has not been completed between the complainant and the opposite parties. The opposite parties have every right to reject or accept the proposal of the complainant. Since the proposal of the complainant has not accepted by this opposite parties, then there is no contract between the complainant and them. They also submits that there is no privity of contract between the complainant and this opposite party. Since the proposals does not meet the criteria of this opposite party, they returned the premium amount to the complainant and hence there is no deficiency in service and the complainant is not entitled for any damages and the complaint may be dismissed with costs.


    4. Exs.A.1 to A.20 has been marked on behalf of the complainant and no documents reported on behalf of the opposite parties and no oral evidence has been adduced on either side.

    5.Heard both sides.

    6.The points that arise for consideration are:

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

    7.POINT NO.1: The Admitted facts in the case are that the complainant issued a cheque for Rs.21,262/- drawn infavour of the 1st opposite party Dt.6.10.2007 for his health insurance policy. The opposite parties issued an acknowledgment under Ex.A.1. The complainant submitted that the above said amount is withdrawn by the opposite parties and the same is reflected in his statement of account i.e Ex.A.2. The complainant contended that even after two months of the payment of premium the opposite parties failed to issue the policy for which the complainant gave a mail under Ex.A.3 and for which the opposite parties gave a reply stating that the policy is under process. The said reply has been marked under Ex.A.4 and A.5. The complainant gave a reply to Ex.A.5 vide Ex.A.6. The opposite parties also gave mails under Exs.A.7,A.8, A.9 and A.10 to the complainant. The complainant got issued another mail to the opposite party under Ex.A.11 and the opposite parties gave a reply to the complainant by informing the policy number and the same was dispatched vide Exs.A.12. and A.13. When the complainant did not receive the policy from the opposite parties, he gave another mail to the opposite parties vide Ex.A.14 and got issued a legal notice vide Ex.A.15. The opposite parties wrote a letter stating that non-acceptance of health insurance policy of the complainant and it is marked under Ex.A.18. The complainant got issued another notice to the opposite parties and it has been marked vide Ex.A.19.

    The complainant contended that he opted for health insurance and paid an amount of Rs.21,262/- by way of cheque to the opposite parties. He further contended that the opposite parties failed to send the policy even after giving number of representations. He further contended that the opposite party gave mails stating that they dispatched the policy under Ex.A.13 and A.12 and they wrongly misguided him by giving such mails. The opposite parties failed to do their service even after encashing the cheque by sending the policy and the same amounts to deficiency in service on their part.

    The opposite party contended that they entrusted the policy business to a private agency which is responsible to verify the eligible criteria of the proposals and all the email correspondence was done by the private agency. The proposals of the complainant was not accepted by the opposite parties as it does not meet the under criteria of ICICI Lombard and the proposal form of the complainant was not accepted by them and the contract has not been completed between the complainant and this opposite party. The opposite parties have every right to reject or accept the proposal of the complainant. The proposal of the complainant is not accepted by the opposite parties, hence there is no contract between the complainant and the opposite parties and there is no privety of contract between them, hence there is no deficiency in service on their part. The opposite party further contended that the complainant requested them to return the premium amount and the same was returned to the complainant vide Ex.A.18.

    Under the above circumstances there can be no question of any contract of health insurance policy being agreed to be entered into by the opposite parties. The opposite parties also addressed a letter to the complainant under Ex.A.18 explaining their inability to give health insurance policy to the complainant as the proposal does not meet the underwriting criteria of ICICI Lombard. The mere receipt of premium and delay in giving an answer cannot be construed as an acceptance, as prima-facie, acceptance must be communicated to the offeror. The general rule is that the contract of insurance will be concluded only the part to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making an offer. Refusal to accept the offer which was in good faith does not amounts to deficiency in service. Therefore, subject to the above observation, the complainant is not entitled for any relief.
  • adminadmin Administrator
    edited September 2009
    COMPLAINANT


    [FONT=&quot]BY-SRI. N. PRAKASH, [/FONT]
    [FONT=&quot] SRI. H.M.RAJESH, [/FONT]
    [FONT=&quot] ADVOCATES, BELLARY. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]//VS//[/FONT]
    [FONT=&quot]M/S BELLARY AUTOMOTIVES BY ITS [/FONT]
    [FONT=&quot]PARTNER R. K. NAGARAJ, [/FONT]
    [FONT=&quot]S/O CHENNAIAH, D.No.1F, [/FONT]
    [FONT=&quot]OPP: BSAL, ANANTHAPUR ROAD, [/FONT]
    [FONT=&quot]BELLARY[/FONT][FONT=&quot]. [/FONT]
    RESPONDENTS


    [FONT=&quot] [/FONT]
    [FONT=&quot]BY-SRI.B.VENKATESWARA-[/FONT]
    [FONT=&quot] PRASAD, ADVOCATE, [/FONT]
    [FONT=&quot] BELLARY. [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]

    1. THE MANAGER,
    ICICI LOMBARD GENERAL
    INSURANCE CO. LTD. , 2ND FLOOR,
    PRESTAGE CORNICHE, 62/1,
    RICHMOND ROAD, BANGALORE – 25.

    2. THE MANAGER,
    ICICI LOMBARD GENERAL INSURANCE
    CO. LTD., MAYURA COMPLEX, 1ST
    FLOOR, DOUBEL ROAD, BELLARY.
    [FONT=&quot] [/FONT][FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot][/FONT]
    [FONT=&quot]//JUDGMENT//[/FONT]
    [FONT=&quot] [/FONT]



    [FONT=&quot] This is the complaint filed by Complainant R.K.Nagaraj Partner of M/s Bellary Automotives, Bellary against Respondent Nos.1 and 2 ICICI Lombard General Insurance Co .Ltd. under Sec-12 of C.P. Act for to direct the Respondents to pay an amount of Rs.75,000/- towards expenditures incurred by him for repair of his damaged vehicle in the accident, to award an amount of Rs.50,000/- for the loss sustained by him due to accident, to award an amount of Rs.20,000/- towards mental agony, frustration suffered by him due to accident and for non-settling his claim, to award an amount of Rs.2,000/- towards cost of this litigation with interest and other reliefs as deems fit to the circumstances of this case. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2. The brief facts of the Complainant’s case are that; [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] The tractor Mahindra bearing Engine and Chasse No.NCTW 10606 trade certificate No.KA-34/TC-13/04-05 was dispatched on 02/04/2007 from stockyard of Mahindra & Mahindra Ltd., Dharwad. The said vehicle was comprehensively insured with Respondents Insurance Company and its validity period is from 16/08/2006 to 15/08/2007. While coming the said vehicle on NH-63 on 03/04/2007 near Shanbag Hotel, Gadag it met with an accident. Police complaint was given and informed the fact of accident to the Respondents Insurance Company. Surveyor was appointed by the Respondents who inspected the damaged vehicle and all its documents and he submitted his report to the Respondents Insurance Company. The Complainant got repaired it and filed claim petition with relevant records, but Respondents Insurance Company not settled his claim on untenable grounds inspite of repeated oral and written requests. Hence, this complaint was filed by him for the reliefs as prayed in it. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] 3. The Respondent Nos.1 and 2 appeared in this case through their advocate, but not filed their Written Versions inspite of sufficient time granted to them. [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot]4. In view of the facts and circumstances stated above, now the points that arise for our consideration and determination are that; [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1.[/FONT]
    [FONT=&quot]Whether the Complainant proves that, his newly purchased Mahindra Tractor bearing [/FONT][FONT=&quot]Engine and Chasse No.NCTW 10606 [/FONT][FONT=&quot]which comprehensively insured with Respondents Insurance Company met with an accident on 03/04/2007 at 8.00 a.m. on NH-63 near Shanbag Hotel, Gadag, it badly damaged in the said accident, he filed police complaint and informed the same to the Respondents, thereafter, Respondents appointed Surveyor who inspected the damaged vehicle and records of vehicle and submitted his report to the Insurance Company, he got repaired the said vehicle by spending more than Rs.75,000/-, he filed claim petition along with necessary documents, but Respondents shown their negligence in settling his claim on untenable grounds even after oral and written requests and thereby both Respondents found guilty under deficiency in their services towards him? [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2. [/FONT]
    Whether the Complainant is entitled for reliefs as prayed in this complaint?
    [FONT=&quot] [/FONT]
    [FONT=&quot]3.[/FONT]
    [FONT=&quot]To what relief the Complainant is entitled for? [/FONT]
    [FONT=&quot]//POINTS[/FONT][FONT=&quot]//[/FONT]













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


    6. [FONT=&quot] In order to prove the facts involved in these two Points, the affidavit evidence of Complainant was filed, he was noted as P.W.1. Documents Ex.P.1 to Ex.P.43 are marked. The Respondents not filed their Written Version and not filed their affidavit evidences. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 7. As regards to the ownership of Complainant over the said tractor, he filed Ex.P.1 Tractor Desptach Report of Mahindra & Mahindra Ltd. Ex.P.2 is the copy of Form-22 with regard to compliance with Pollution Standards & Road Worthiness. Ex.P.3 copy of F-Form. Ex.P.4 is the tax Invoice. Ex.P.5 is the trade certificate issued by RTO are supporting his ownership. As regards to the claim of Complainant as the said tractor comprehensively insured with Respondents Insurance Company, he filed copy of Insurance Policy Ex.P.6. To show that tractor was driven by valid and effective Driving Licence holder he filed Ex.P.8 copy of D.L. Ex.P.9 is check report-cum receipt issued by Traffic Police Station as the said tractor met with an accident. As regards to the claim of Complainant as he filed claim petition with necessary documents, he filed copy of it which is marked as Ex.P.10 and Ex.P.15. [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot]8. Appointment of Surveyor by the Respondents Insurance Company who assessed the loss and damage to the vehicle is as per documents Ex.P.11 to Ex.P.14. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]9. In view of unchallenged affidavit evidence of Complainant coupled with the above said documents, it is very much clear that, the Complainant has proved his ownership over the said tractor, it met with an accident while driving by the valid and effective D.L. holder which comprehensively insured with Respondents Insurance Company. Further it is proved fact that, the said tractor badly damaged in the accident and Surveyor was appointed who assessed the loss and damage to the extent of Rs.68,919/- vide Ex.P.14. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]10. The Complainant has filed four bills Ex.P.16 and positive photographs of the damaged tractor Ex.P.17 to Ex.R.36. According to the submission made by the learned advocate for Complainant that, the Complainant incurred expenditure of Rs.75,000/- for repair of damaged tractor. In support of the said claim he relied on four bills Ex.P.16 and photographs Ex.P.17 to Ex.P.36. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]11. The learned advocate for Complainant submitted that, vouchers produced by the Complainant are in proof of expenditure made for repair of damaged tractor. Hence, no further proof is necessary for to prove that he made an expenditure of Rs.75,000/- towards repair of the tractor. In support of this submission he relied on ruling reported I (2005) CPJ 285 National Insurance Co. Ltd. Vs. Lalta Ram. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]12. The learned advocate for Respondents submitted that the facts and circumstances of the case referred by the learned advocate for Complainant are different to the facts and circumstances of this case and thereby he requested not to place reliance on the said ruling. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]13. In view of the submissions made on both sides, we have gone the through the principles of said ruling. In the said ruling, their lordships of Hon’ble U.P. State Commission accepted bills of Complainant even though there was a Surveyor’s report. In Para No.3 of the said Judgment, it is stated as the Surveyor was rejected the bills of Complainant for spending of Rs.6,706/- even though bills produced before him. In that circumstances, their lordships held that the amount of Rs.6,706/- vide receipts produced by the Complainant before Surveyor should have not been discarded in his report. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]14. Now coming to the facts of present case on hand. It is not the case of Complainant that he produced the bills regarding spending of Rs.75,000/- before the Surveyor, but Surveyor admitted his bills to the extent of Rs.68,919/- and discarded his bills for the remaining amount. Surveyor report Ex.P.14 discloses that he independently investigated the matter, assessed loss and damage to the vehicle and independently came to a conclusion that net loss will be at Rs.68,919/-. In the said circumstances, with great respect to their lordships of ruling referred above, we came to a conclusion that, the facts and circumstances discussed in the said ruling are different to the facts and circumstances of this case. We placed reliance and followed the principles of ruling reported in 2008 CTJ 580 (CP) (NCDRC) United India Insurance Co. Ltd. Vs. Smt. Maya and accepted the Surveyor report Ex.P.14. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]15. It is a fact that inspite of claim petition and issuance of legal notice by the Complainant, the Respondents shown their negligence in settling his genuine claim and thereby both Respondents found guilty under deficiency in their services to the Complainant. Hence, we answered Point No.1 in affirmative. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]16. As we have already discussed the principles of ruling referred by the learned advocate for Complainant and another ruling referred by us, we came to a conclusion that, it is proper to accept the amount shown by the Surveyor in his report Ex.P.14. The Complainant is entitled to recover that amount Rs.68,919/- which is rounded to Rs.69,000/- from the Respondent No.1 and 2 jointly and severally towards expenditure incurred by him due to repair of his damaged tractor in the said accident. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]17. Another claim of Complainant is for to award an amount of Rs.50,000/- towards loss caused to him and Rs.20,000/- towards mental agony, inconvenience and frustration suffered by him. These two claims of Complainant are not supported by acceptable evidences. We have noticed the deficiency in service on the part of these Respondents to the Complainant by non-settling his claim as such, we are of the view that, awarding a lump sum of Rs.3,000/- under the head of deficiency in service is proper and reasonable amount as such, it is granted. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]18. Another prayer of Complainant is for to award a sum of Rs.2,000/- towards cost of this litigation. This amount is proper and reasonable amount as such, it is granted. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]19. The Complainant is entitled to recover future interest @ 9% p.a. on the above said total sum from the date of this complaint till realization of full amount. Accordingly, we answered Point No.2. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot]Point No.3: - [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]20. In view of findings on Point Nos.1 & 2, we pass the following; [/FONT]
    [FONT=&quot]//ORDER//[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The complaint filed by the Complainant is partly allowed with cost. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Complainant is entitled to recover total sum of Rs.74,000/- (rupees seventy four thousand only) including cost from the Respondent No.1 and 2 jointly and severally. [/FONT]
    [FONT=&quot]The Complainant is entitled to recover future interest @ 9% p.a. on Rs.74,000/- from the date of this complaint i.e. 02/02/2009 till realization of full amount from the Respondent No.1 and 2 jointly and severally. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Respondent No.1 and 2 jointly and severally are hereby granted two months time from the date of this Judgment for to make the payment of total sum and interest as stated above to the Complainant. [/FONT]
  • adminadmin Administrator
    edited September 2009
    COMPLAINANT


    [FONT=&quot]BY-SRI. B.THIMMA REDDY, [/FONT]
    [FONT=&quot] SRI. H. GOPAL REDDY, [/FONT]
    [FONT=&quot] ADVOCATES, BELLARY. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]//VS//[/FONT]
    [FONT=&quot]SRI. G. GOPAL REDDY, [/FONT]
    [FONT=&quot]MANAGING TRUSTEE, [/FONT]
    [FONT=&quot]SWAMY VIVEKANANDA CHARITABLE[/FONT]
    [FONT=&quot]& SERIVCE TRUST, [/FONT]
    [FONT=&quot]NEAR LAKSHMI TVS SHOW ROOM, [/FONT]
    [FONT=&quot]1ST LINK ROAD, PARVATHI NAGAR, [/FONT]
    [FONT=&quot]BELLARY[/FONT][FONT=&quot]. [/FONT]
    RESPONDENT


    [FONT=&quot] [/FONT]
    [FONT=&quot]BY-SRI. B.VENKATESWARA-[/FONT]
    [FONT=&quot] PRASAD, ADVOCATE, [/FONT]
    [FONT=&quot] BELLARY. [/FONT]
    THE BRANCH MANAGER,
    M/S ICICI LOMBARD GENERAL
    INSURANCE CO. LTD., DOUBLE ROAD, BELLARY.
    [FONT=&quot] [/FONT][FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot][/FONT]
    [FONT=&quot]//JUDGMENT//[/FONT]
    [FONT=&quot] [/FONT]



    [FONT=&quot] This is the complaint filed by Complainant G.Gopala Reddy against Respondent ICICI Lombard General Insurance Co. Ltd. Bellary under Sec-12 of C.P. Act, for to award a sum of Rs.7,23,381/- for the expenditure incurred by him for repair of his damaged ambulance in the accident with interest, to award a sum of Rs.75,000/- towards deficiency in service, to award a sum of Rs.25,000/- towards mental shock and agony with other reliefs as deems fit to the circumstances of this case. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2. The brief facts of the Complainant’s case are that; [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]He being the owner and R.C. holder of ambulance vehicle bearing Regn.No.KA-34/A-419 comprehensively insured with Respondents Insurance Company met with an accident on 29/08/2008 and in the said accident his ambulance vehicle badly damaged. Thereafter, he intimated the fact of accident to the Police as well as to the Respondents Insurance Company. He got repaired the vehicle and thereafter he filed claim petition with necessary records and bills. The Respondents Insurance Company appointed Surveyor, inspected the damaged vehicle and he filed his report. But the Respondent shown its negligence in settling his claim inspite of repeated oral and written requests and thereby the Respondent Insurance Company found guilty under deficiency in its service towards him. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] 3. The Respondent Insurance Company appeared in this case through its Advocate, filed Written Version by admitting ownership of Complainant to the said vehicle, comprehensively insured with it, accident of it while Insurance Policy was in force and damage caused to the said vehicle. It contended that, the FIR lodged in this case discloses that on relevant date, time and place the ambulance of Complainant was carrying as many as twelve passengers excluding driver and it was plying for hire. Hence, the Complainant violated the terms and conditions of Policy. Further it is contended that, one Lakshmi Reddy who driven the said vehicle on the said, date and place was not holding valid and effective D.L. to drive it. Hence, his claim was repudiated vide its letter dated: 22/12/2008. It admitted the appointment of Surveyor and filing his report by assessing the damage and loss to the said vehicle. Hence, it was requested to dismiss the complaint among other grounds. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot]4. In view of the pleadings of parties, now the points that arise for our consideration and determination are that; [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1.[/FONT]
    [FONT=&quot]Whether the Complainant proves that, his ambulance vehicle bearing Regn.No.KA-34/A-419 comprehensively insured with Respondent Insurance Company met with an accident on 29/08/2008 on NH-13 near Hanumanthadevara Kanive, in the said accident his ambulance badly damaged, he informed the same to the Police as well as to the Respondent Insurance Company, Surveyor was appointed by it assessed the damage and loss to the vehicle, thereafter, he got repaired his damaged vehicle and filed claim petition along with necessary records and bills, but Respondent Insurance Company shown its negligence and ultimately it repudiated his claim on untenable grounds and thereby Respondent Insurance Company found guilty under deficiency in its service towards him? [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2. [/FONT]
    Whether the Complainant is entitled for reliefs as prayed in this complaint?
    [FONT=&quot] [/FONT]
    [FONT=&quot]3.[/FONT]
    [FONT=&quot]To what relief the Complainant is entitled for? [/FONT]
    [FONT=&quot]//POINTS[/FONT][FONT=&quot]//[/FONT]















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

    [FONT=&quot]6[/FONT]. [FONT=&quot] In order to prove the facts involved in these two points, affidavit evidence of Complainant was filed, he was noted as P.W.1. Documents Ex.P.1 to Ex.P.22 are marked. No Written Arguments filed. On the other hand, affidavit evidence of Manager-Legal of Respondent Insurance Company was filed, he was noted as R.W.1. Affidavit evidence of Surveyor & Loss Assessor was filed, he was noted as R.W.2. Documents Ex.R.1 to Ex.R.7 are marked. No written arguments filed. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]7. In the instant case, the ownership of Complainant to the ambulance bearing Regn.No.KA-34/A-419, comprehensively insured of it with Respondent Insurance Company, accident met by it while Insurance Policy was in force as on the said date, time and place, damage to the vehicle, appointment of Surveyor, repairing of his damaged vehicle by him and filing claim petition before Respondent Insurance Company with relevant records and bills are all not in dispute between the parties. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 8. In the instant case, the Respondent Insurance Company repudiated the claim of Complainant only on two grounds. The first ground of it is that, on 29/08/2008 at the relevant time and place the ambulance of Complainant was carrying as many as twelve passengers excluding driver and it was plying for hire, hence, the Complainant violated the terms and conditions of Policy with regard to use of said vehicle. The second ground of it is that, Complainant allowed one Mr. Lakshmi Reddy who was not holding valid and effective Driving Licence to drive the said ambulance. Hence, the Complainant violated the terms and conditions of Policy, more particularly Driver’s Clause hence, repudiated by it vide its letter dated: 22/12/2008 is valid and legal. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 9. In support of these two contentions, the learned advocate for Respondent relied on the following rulings; [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot]1.[/FONT]
    [FONT=&quot]Civil Appeal No.1102 of 2009 of Supreme Court of India. Oriental Insurance Co. Ltd. Vs. Angad Kol & Ors. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2.[/FONT]
    [FONT=&quot]2008 (1) TAC 401 (SC) New India Assurance Co. Ltd. Vs. Prabhu Lal. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]3.[/FONT]
    [FONT=&quot]III (2008) CPJ 191 (NC) United India Insurance Co. Ltd. Vs. Arvind Kumar Rajak. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]4.[/FONT]
    [FONT=&quot]AIR 2008 Supreme Court 2266 New India Assurance Co. Ltd. Vs. Roshanben Rahemansha Fakir & Anr. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 1st ruling cited above deals with meaning of Light Motor Vehicle, Medium Goods Vehicle, Transport Vehicle, Light Goods Carriage Vehicle and Heavy Goods Vehicle and category of licence required to drive such classified vehicles. [/FONT]
    [FONT=&quot] In the ruling cited at Sl.No.2 their lordships of Hon’ble Supreme Court of India deals with a case in which the driver was holding a licence to drive LMV can also drive HMV. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] In a case cited at Sl.No.3 the Hon’ble National Commission dealt a case regarding the driving Maxi Cab who holds licence to drive LMV. In the said case, the Hon’ble National Commission held Maxi Cab being transport vehicle, driving licence has to be duly endorsed - without endorsement, person holding LMV licence cannot ply transport vehicle. [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot]In a ruling cited at Sl.No.4 the Hon’ble Supreme Court a case was dealt wherein the driver holding licence to drive three wheeler vehicle i.e. autorickshaw delivery van that does not mean to say that driver was holding valid and effective licence for to drive transport vehicle. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]10. On going through the principles of rulings referred above, it is very much clear that, Driver of the ambulance bearing Regn.No.KA-34/A-419 by name Mr. Lakshmi Reddy was not holding valid and effective licence to drive the above said vehicle. Further admittedly as on the date of accident at relevant time twelve passengers were traveling in the said ambulance along with dead body of Khasa Doddappa Basappa to their native place, as such, with great respect to their lordships of rulings referred above, we are of the view that, the facts and circumstances discussed in each cases referred above are totally different to the facts and circumstances of the present case on hand. Admittedly, the present vehicle is an ambulance. The persons who were travelling in the said ambulance on the relevant date and time are might be relatives of deceased who were carrying dead body of Khasa Doddappa Basappa. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 11. In the said circumstances, we have referred and followed the principles of ruling reported in 1993 BCR-(Cons)-2-44 Three Judges Division Bench of Hon’ble High Court of Bombay in a case Deorao M. Mendhule Vs. Manager, New India Assurance Co. Ltd. Midic Branch. In the said case, matador vehicle comprehensively insured with Insurance Company met with an accident while carrying dead body of Police constable - Insurance Company repudiated the claim of Complainant on the ground that Complainant violated the terms and conditions of Insurance Policy by carrying passengers more than permitted. In the said case, their lordships held as restriction to carry passengers is a rule when the vehicle is public carrier, the said vehicle was carrying dead body not for gain himself but on humanitarian ground his act was humanitarian act - under the said circumstances, their lordship held as rejection of claim of Complainant on technical ground is not justifiable – complaint allowed. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 12. In the light of principles of said ruling, the Complainant of this case was allowed his ambulance to carry out the dead body of Khasa Doddappa Basappa to his native place along with his relatives who were more in than the required number of persons as per the permit and allowing driver Mr.Lakshmi Reddy to drive the ambulance even though he was not having valid and effective licence to drive the ambulance at that time are on humanitarian grounds which are prevailing over the technical grounds as pointed out by the learned advocate for Respondent Insurance Company. As such, the repudiating the claim of Complainant on such technical grounds under the facts and circumstances of this case are not justifiable grounds for the Respondent Insurance Company. Hence, it is clear case of deficiency in service on the part of Respondent for repudiating the claim petition. Accordingly, we answered Point No.1 in affirmative. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 13. As regards to the reliefs of Complainant are concerned, he prayed for to direct the Respondent Insurance Company for to make payment of Rs.7,23,381/- towards cost for effecting repair of his ambulance. In support of this claim, the Complainant has filed estimation of repairs Ex.P.9 and bills Ex.P.10 to Ex.P.22. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]14. In the instant case, the Respondent Insurance Company appointed Surveyor R.W.2 who assessed the loss and damage to the vehicle vide his survey report Ex.R.4. As per his report Ex.R.4 he assessed the net loss to the extent of Rs.2,15,276/-. By taking into consideration of his report Ex.R.4 and his affidavit evidence R.W.2 and considering the principles of ruling reported in 2008 CTJ 580 (CP) (NCDRC) United India Insurance Co. Ltd. Vs. Smt. Maya we have accepted the Surveyor’s report regarding the assessment and loss caused to the Complainant due to damages to his vehicle in the said accident to the extent of Rs.2,15,276/- for which Complainant is entitled under this head. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 15. The second prayer of him is for to award an amount of Rs.75,000/- towards deficiency in service. This figure is not supported by any logical conclusions as such, we are of the view that, granting lump sum amount of Rs.3,000/- towards deficiency in service is proper and reasonable amount. Accordingly, it is granted. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]16. The Complainant prayed for to award an amount of Rs.25,000/- towards mental shock and agony. This figure is also not supported by any base as such, this relief is rejected. As regards to the interest is concerned, the Complainant is entitled to recover future interest @ 9% p.a. from the date of this complaint till realization of full amount on the above said total sum. Accordingly, we answered Point No.2. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot]Point No.3: - [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]17. In view of findings on Point Nos.1 & 2, we pass the following; [/FONT]
    [FONT=&quot]//ORDER//[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The complaint filed by the Complainant is partly allowed.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Complainant is entitled to recover total sum of Rs.2,18,276/- (Rupees Two lakhs eighteen thousand two hundred and seventy six only) from the Respondent Insurance Company. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Complainant is entitled to recover future interest @ 9% p.a. on Rs.2,18,276/- from the date of this complaint i.e. 01/01/2009 till realization of full amount from the Respondent Insurance Company. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Respondent Insurance Company is hereby granted two months time from the date of this Judgment for to make the payment of total sum and interest as stated above to the Complainant. [/FONT]
    [FONT=&quot][/FONT]
  • adminadmin Administrator
    edited September 2009
    COMPLAINANT


    [FONT=&quot]BY-SRI. M. LOKESH, [/FONT]
    [FONT=&quot] ADVOCATE, BELLARY. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]//VS//[/FONT]
    [FONT=&quot]SRI. HUSSAIN SAB, [/FONT]
    [FONT=&quot]S/O LAL SAB, [/FONT]
    [FONT=&quot]R/O VADDU VILLAGE, [/FONT]
    [FONT=&quot]SANDUR TALUK, BELLARY DIST. [/FONT]
    RESPONDENTS


    [FONT=&quot] [/FONT]
    [FONT=&quot]BY-SRI.B.VENKATESWARA[/FONT]
    [FONT=&quot] PRASAD, ADVOCATE,[/FONT]
    [FONT=&quot] BELLARY. [/FONT]
    [FONT=&quot] [/FONT]

    1. THE BRANCH MANAGER,
    ICICI LOMBARD MOTOR INSURANCE,
    MAYURA COMPLEX, DOUBLE ROAD,
    BELLARY.

    2. THE DIVISIONAL MANAGER,
    ICICI LOMBARD MOTOR INSURANCE
    CO.LTD., CORPORATION OFFICE,
    ZENITH HOUSE, KESHAVARAO KHANDE
    MARG., MAHALAKSHMI,
    MUMBAI- 400 034.
    [FONT=&quot] [/FONT][FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot][/FONT]
    [FONT=&quot]//JUDGMENT//[/FONT]
    [FONT=&quot] [/FONT]



    [FONT=&quot] This is the complaint filed by Complainant Hussain Sab against Respondents ICICI Lombard Motor Insurance Co. under Sec-12 of C.P. Act, for to direct the Respondents to pay a sum of Rs.2,00,000/- towards expenditures incurred by him for repairing his damaged vehicle with interest @ 12% p.a. and for to award a sum of Rs.20,000/- towards deficiency in service with cost and other reliefs as deems fit to the circumstances of this case. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2. The brief facts of the Complainant’s case are that; [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] He is the owner of Maxi Cab bearing Regn. No.KA-35/9541 which comprehensively insured with Respondents Insurance Company met with an accident on 08/01/2008 at about 3.00 a.m. while Insurance Policy was in force and in the said accident his vehicle badly damaged. He informed the fact of accident to the Police as well as to the Respondents Insurance Company. Thereafter, he filed claim petition along with necessary records. The Respondents appointed Surveyor, he inspected the damaged vehicle and assessed the net loss for Rs.1,80,000/-. He filed bills for Rs.2,00,000/- towards expenditure incurred by him for repairing the said vehicle. The Respondents shown their negligence in settling his claim petition inspite of several oral and written requests and thereby Respondents found guilty under deficiency in their service towards him. Accordingly, he prayed for to grant the reliefs as prayed in it. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] 3. The Respondent Nos.1 and 2 appeared in this case through their advocate, but not filed their Written Version inspite of sufficient time granted to them. Accordingly, case proceeded and affidavit evidence of Complainant was recorded and his documents appreciated. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]4. In view of the facts and circumstances stated above, now the points that arise for our consideration and determination are that; [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1.[/FONT]
    [FONT=&quot]Whether the Complainant proves that, his maxi cab bearing Regn.No.KA-35/9541 comprehensively insured with Respondents Insurance Company met with an accident on 08/01/2008 at 3.00 a.m. on Bellary-Vaddu public road and in the said accident, his vehicle badly damaged, he informed the same to the Police as well as to the Respondents, he got repaired it from private auto garage, thereafter, he filed claim petition along with all necessary records and bills, but Respondents Insurance Company shown its negligence in settling his claim, inspite of several oral and written requests and thereby both Respondents found guilty under deficiency in their services towards him? [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2. [/FONT]
    Whether the Complainant is entitled for reliefs as prayed in this complaint?
    [FONT=&quot] [/FONT]
    [FONT=&quot]3.[/FONT]
    [FONT=&quot]To what relief the Complainant is entitled for? [/FONT]
    [FONT=&quot]//POINTS[/FONT][FONT=&quot]//[/FONT]














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


    [FONT=&quot]6[/FONT]. [FONT=&quot] In order to prove the facts involved in these two Points, affidavit evidence of Complainant was filed, he was noted as P.W.1 and documents Ex.P.1 to Ex.P.17 are marked. The Respondents not filed their Written Version, documents and not filed affidavit evidence of any one. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 7. In the light of circumstances stated above, as regards to the ownership of vehicle of Complainant is supported by Ex.P.2 R.C. extract of the said vehicle, as regards to the accident met by it is supported by copy of FIR Ex.P.5 with copy of complaint, statement of witness Ex.P.6, IMV report Ex.P.7. As regards to the coverage of insurance of the said vehicle is supported by Ex.P.1 copy of Insurance Policy. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]8. All these documents are unchallenged documents by the Respondents. In the similar way, the affidavit evidence of P.W.1 in respect of those documents is also unchallenged by the Respondents. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]9. Now further evidence of P.W.1 with regard to damage to his vehicle he contended that, he got repaired the said vehicle with M/s Eresh Auto Concern, Bellary, Benz Automobiles, Bellary, Sagar Automobiles, Hospet, Kiran Glass Works, Bellary and Afroz Builders, Bellary and in support of this fact he has produced bills Ex.P.8 to Ex.P.15. It is contended by the Complainant in his affidavit evidence that, after informing the fact of accident to the Respondents, it appointed Surveyor and assessed the damage to the extent of Rs.1,80,000/-, but he incurred expenditure to the extent of Rs.2,00,000/-. Accordingly, he submitted bills Ex.P.8 to Ex.P.15. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]10. It appears from the affidavit evidence of P.W.1 and the copy of legal notice Ex.P.17 that, the Respondents Insurance Company not settled his claim petition even though he filed necessary documents with bills in support of his claim. Hence, the Complainant established the fact that the Respondents shown their negligence in settling his claim and both Respondents found guilty under deficiency in their service towards him. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]11. The Complainant has not produced copy of Surveyor’s report to hold that, the said Surveyor assessed the damage to the extent of Rs.1,80,000/-. However, documents Ex.P.8 to Ex.P.15 which are bills of M/s Eresh Auto Concern, Bellary, Benz Automobiles, Bellary, Sagar Automobiles, Hospet, Kiran Glass Works, Bellary and Afroz Builders, Bellary totally works out to Rs.1,81,567/-. The Complainant himself admitted the fact that the Surveyor of Respondents Insurance Company assessed loss and damage to the extent of Rs.1,80,000/- as such, the Complainant is entitled to get an amount of Rs.1,80,000/- towards expenditure incurred by him for repair of his damaged vehicle. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]12. As regards to the claim of Complainant for Rs.20,000/- towards deficiency in service is not based on any principles. We have noticed the deficiency in service on the part of these Respondents to the Complainant as such, we are of the view that, granting an amount of Rs.3,000/ to the Complainant under the head of deficiency in service by these Respondents is proper and reasonable amount. Accordingly, it is granted. [/FONT]
    [FONT=&quot] 13. As regards to the cost of complaint is concerned, he is entitled to recover an amount of Rs.2,000/- from the Respondents jointly and severally under this head. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] 14. As regards to the rate of interest, it is proper and just to grant interest @ 9% p.a. from the date of this complaint till realization of full amount on the above said total sum. Accordingly Point No.1 and 2 answered. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT][FONT=&quot][/FONT]
    [FONT=&quot]Point No.3: - [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]15. In view of findings on Point Nos.1 & 2, we pass the following; [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]//ORDER//[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The complaint filed by the Complainant is partly allowed with cost. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Complainant is entitled to recover total sum of Rs.1,85,000/- including cost (rupees one lakh eighty five thousand only) from the Respondents jointly and severally. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Complainant is entitled to recover future interest @ 9% p.a. on Rs.1,85,000/- from the date of this complaint i.e. 01/01/2009 till realization of full amount from the Respondents jointly and severally. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Respondents jointly and severally are hereby granted two months time from the date of this Judgment for to make the payment of total sum and interest as stated above to the Complainant. [/FONT]
  • adminadmin Administrator
    edited September 2009
    Sri. S.B. Krishna, S/o Late K. Narasimha Murthy, R/at No.175, 5th Main Road, Avalahalli Extension, BSK III Stage, Bangalore-85. Complainant

    V/S

    Authorised Signatory, ICICI Bank Ltd., Credit Card Collection, Bommanahalli, Bangalore-68. Opposite Party


    ORDER By the President Sri. S.S. Nagarale


    This is a complainant filed under Section 12 of the Consumer Protection Act, 1986 claiming refund of Rs.11,411-41/- from the opposite party Bank. The brief facts of the case are that, the complainant is the Credit Card Holder in the opposite party Bank bearing No. 3770 413164 23002 and he was prompt in making payment of all the dues raised in respect of the said credit card. The complainant was paying his monthly premium in respect of his Lombard Insurance Policy through Credit Card. Due to personal reasons, the complainant got the said insurance policy cancelled in February-2008. The premium paid was transferred back to this credit card. This entry is also reflected in the statement dated 3/3/2008. After that entry there was another entry charging Rs.5,719/-. The complainant questioned about this the opposite party Bank staff given narration as “EMI Principal”.
    An amount of Rs.5,719/- had been mentioned as EMI Principal for the transaction held on 28/2/2008. In fact the complainant had not made any transactions on 28/2/2008 and there was no outstanding amount as on that date. During the period of statement there were two transactions one for Rs.140/- and another was for Rs.3,892/-.
    According to the Bank website there was no transaction of Rs.5,719-09. The opposite party Bank has recovered an amount of Rs.5,719-09 from the S.B A/c bearing No. 004701501413 of the complainant. Except this transaction the complainant had no objections about the other transactions mentioned in the said bill. Complainant requested the Bank to furnish the details of the outstanding amount mentioned in the bank statement dated 3/3/2008, but the bank instead of furnishing the details of the amount an irrelevant reply was given stating that an enquiry can not be conducted after 90 days and as such they had not furnished the details to the complainant. The opposite party Bank has not shown any interest to furnish the required information sought by the complainant. The opposite party Bank has deducted an amount of Rs.7,519.41. In spite of repeated requests and correspondence by the complainant, the opposite party Bank has not furnished the details as sought by the complainant and this amounts to negligence. The complainant issued legal notice on 15/1/2009 but failed to furnish the reply to the legal notice issued by the complainant. The opposite party has deducted an amount of Rs.7,519.41 from the S.B A/c of the complainant along with Rs. 3,892/- received from the Lombard Insurance totaling amount of Rs.11,411-41. The Bank has neither refunded the said amount nor replied to the complainant after issue of legal notice dated 12/1/2009. Hence, the complaint.


    2. Notice was issued to opposite party. Notice was served. In spite of service of notice the opposite party has not appeared. Defense version not sent even by post also. Therefore the opposite party placed as exparte.

    3. Affidavit evidence of complainant filed. Arguments are heard.


    REASONS


    4. Perused the complaint and documents. It is the case of the complainant that, opposite party Bank has debited an amount of Rs.7,514-41 from the complainant’s S.B A/c bearing No. 004701501413. But complainant submitted that this amount has already been debited from S.B A/c on 15/12/2008 itself. Statement of transaction in Savings Account for the period 01/10/2008 to 31/10/2008 has been produced by the complainant. As per this statement Rs.7,519/- has been shown as withdrawn on 15/12/2008. Therefore, the complainant submitted that he had requested the opposite party to furnish details of outstanding amount as mentioned in the credit card statement. In spite of his request opposite party Bank has not furnished details as sought by the complainant. Therefore, this is a deficiency in service on the part of the opposite party Bank. Opposite party Bank has failed to furnish the required information to the complainant. The complainant has submitted that he has made repeated correspondence and representations and requested over telephones and even on his personnel visits also opposite party Bank has not furnished the details of amount recovered.
    The complainant had issued legal notice to the opposite party Bank. In spite of the notice the opposite party Bank has failed to reply to the legal notice. Since an amount of Rs.7,519/- shown as EMI principle on 28/02/2008 in the credit card account is not proper and correct. It is the case of the complainant that he was paying monthly premium towards Lombard General Insurance policy and got the said insurance policy in February-2008, accordingly the premium paid was transferred back to his credit card account.

    The complainant submits that the amount received in respect of refund of the policy amount had not been credited to his S.B A/c. Therefore, the complainant wants that the said amount shall be credited to the S.B A/c. The amount of Rs. 5,719/- which has been shown as EMI principle for the transaction held on 28/02/2008. The complainant submitted that he has not made any transaction on 28/02/2008 and there was an outstanding amount as on that date.

    Therefore, the entry as EMI principle dated 28/02/2008 appears to be wrong and not proper. The case made out by the complainant has gone unchallenged. The opposite party Bank has not appeared before this Forum in spite of service of notice. There are no reasons to disbelieve the case put up by the complainant.

    The opposite party Bank by remaining absent/exparte has accepted the facts stated by the complainant. Therefore, taking into consideration of all the documents and the affidavit evidence filed by the complainant, the complaint deserves to be allowed. In the result, I proceed to pass the following:- ORDER 5. The complaint is allowed. The opposite party Bank is directed to reverse back/credit an amount of Rs.5,719/-(shown as EMI principal) and also credit Rs.3,892/- received from the ICICI Lombard General Insurance to the S.B A/c of the complainant (since the complainant got cancelled the health insurance policy). 6. The opposite party is directed to pay Rs.1,000/- towards costs of the present proceedings to the complainant. 7. Send the copy of this Order to both the parties free of costs immediately as per statutory requirement.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    Shri Mukesh Kumar Juneja

    S/O late Shri Krishan Kumar Juneja,

    Resident of Sarna Cottage near Rana Cottage,

    Jakhoo, Shimla-171001.



    … Complainant

    Versus



    1. The Manager, UTI Bank,

    S.D.A. Complex, Kasumpti, Shimla-171009.



    2. M/S ICICI Lombard General Insurance Company Ltd.

    ICICI Bank Towers, Bandra Kurla Complex,

    Bandra (East) Mumbai- 400 051.



    …Opposite Parties


    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. Briefly stating the facts of as set out in the complaint are that the father of the complainant late Shri Krishan Kumar Juneja had opened saving bank account with the OP No.1 and as per the scheme prevalent at the relevant time, has father was duly insured for a sum of Rs.2,00,000/- in case of accidental death policy. That his father late Shri Kishan Kumar Juneja met with fatal accident on 01.11.2002 at Panchkula, who later on succumbed to the injuries on 04.11.2002 at Panchkula. That intimation about the death of the insured was sent to the OPs and subsequently he preferred the insurance claim with OPs. But, the OPs instead of settling his insurance claim repudiated the same on frivolous grounds. Hence, feeling dissatisfied and aggrieved by the act of the OPs, the complainant perforce filed this complaint against the OPs.



    2. The OPs while filing reply took preliminary objections regarding maintainability of the complaint, jurisdiction of the Forum to try and entertain the present complaint, etc. On merits, the OP No.1 admitted that the deceased Shri Krishan Kumar Janeja had opened saving Bank account with them. That as per the scheme of free accidental policy the debit card holders between age group of 18 years and 70 years were duly insured with them. But according to OPs, the injured had already crossed the age of 70 years at the time of his death. As such he or his nominee was not entitled for any claim after death of insured K.K juneja. Hence, there being no deficiency in service, the complaint is sought to be dismissed. Thereafter, the parties led evidence in support of their claim/counter claim.



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

    4. Admittedly, the deceased Krishan Kumar Juneja had opened a saving bank account with the OP No.1 who was duly insured under free accidental policy with the OPs and the persons between age group of 18 to 70 years were given Insurance Coverage under this free Accidental Policy. It is the case of the complainant that his father met with a fatal accident on 01.11.2002 who later on succumbed to his injuries at Panchkula on 04.11.2002. That, he sent intimation about the death of the insured to the OPs and subsequently preferred the insurance claim. But the OPs instead of settling the same repudiated it on frivolous grounds.



    5. As stated above, the OPs have not disputed the factum of providing insurance coverage to the deceased Krishan Kumar under free accidental policy in vogue at relevant time. But their case is that this insurance coverage was available to the persons between age group of 18 to 70 years but the deceased Krishan Kumar had already crossed the age of 70 years when he expired. Therefore, the claim preferred by the complainant was rightly repudiated by them being not admissible.



    6. In this connection it may be submitted that the parties have relied upon claim form Annexure C-1, wherein the age of deceased Krishan Kumar Juneja has been shown 74 years after interpolation from figure 64 without any explanation. The Annexure C-2 is also relied upn by parties wherein the date of birth of deceased Krishan Kumar is shown as 20.04.1929. But, it a document of OP. No copy of birth certificate showing the date of birth of deceased Krishan Kumar has been placed on record by OP in support of their plea that the insured was above 70 years at the time of his death. Needless to state that it was for OPs to prove that the deceased had already crossed the age of eligibility to maintain this insurance claim by complainant under the scheme. Thus, in the absence of cogent oral or documentary evidence led on record by OP, it cannot be held by any stretch of imagination that the deceased Krishan Kumar Juneja had crossed the age of 70 years at the time of his death and that the complainant is not entitled to the payment of insured sum. Thus, the act of OPs by repudiating the insurance claim of the complainant on this unjustified and illegal ground would certainly amount to deficiency in service and unfair trade practice.



    7. For the foregoing reasons, we allow this complaint and direct both OPs to jointly and severally indemnify the complainant to the extent of Rs.2,00,000/- alongwith interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 22.09.2004 till making full payment of the aforesaid amount. The OPs are also directed to pay litigation cost of Rs.1000/- to the complainant. This order shall be complied with by the OPs jointly and severally within a period of forty five days, after the date of receipt of copy of this order.
  • edited September 2009
    Harnek Singh son of Sh. Bachittar Singh, resident of village Ranian, Post Office Sangowal, Ludhiana.

    Complainant.

    Versus



    1- ICICI Lombard General Insurance Co. Ltd. The Mall, Ludhiana through its Manager.

    2- ICICI Lombard General Insurance Co. Ltd., SCO 174-175, Ist Floor, Sector 9-C, Madhya Marg, Chandigarh through its Manager.

    3- ICICI Bank Towers Bandra Kurla Complex, Mumbai-400051 through its Chairman/MD. Opposite parties.



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

    Quorum:

    Sh. T.N. Vaidya, President.

    Sh. Rajesh Kumar, Member.



    Present: Sh. K.S. Mand Adv. for complainant.

    Sh. Amandeep Singh Adv. for opposite parties no.1 & 2.

    Opposite party no.3 exparte.



    O R D E R



    T.N. VAIDYA, PRESIDENT:



    1- Tata Indica car bearing registration no.PB-10BZ-1041, Engine no.60020, Chassis no.72304, was purchased by complainant from Garison Motors, Ludhiana, for Rs.3,82,500/-. The same was got insured vide cover note no.1763893 dated 24.5.2006 from opposite parties no.1 & 2. The insured vehicle met with an accident on 28.4.2007 in village Gill, District Ludhiana, qua which, intimation was given to opposite party. Claim was lodged for total damage with opposite party, who got the surveyor appointed, but repudiated the claim vide letter dated 5.8.2007, on ground that the vehicle was used for commercial purpose. This repudiation is challenged to be wrong, null and void, illegal and arbitrary, by filing the present complaint u/s 12 of the Consumer Protection Act, 1986. Hence, sought value of the car Rs.3,63,,375/- from opposite party with Rs.50,000/- as compensation for deficiency in service and Rs.10000/- as litigation costs.

    2- Opposite party admitted obtaining insurance policy qua the car from them by the complainant. Lodging accidental claim is also conceded alongwith repudiating the same. They have justified the repudiation, on the ground that the vehicle was being used for commercial purpose. Though had obtained insurance coverage, as a private vehicle. The vehicle at the time of accident, was being plied as a taxi. Complainant is running a travelling agency in the name and style of Kargil Taxi Stand on Alamgir Road. As such, by plying the private vehicle, as taxi, he infringed conditions of the policy and claim consequently, was rightly repudiated.

    3- Contesting parties led evidence in support of their claims and stood heard through their respective counsels.

    4- The only and sole question requiring determination is whether the car owned by complainant, was used by him, as a taxi and at the time of accident, was being plied, as a taxi, in violation of the terms and conditions of the insurance policy. To support such plea that the vehicle was being plied as a taxi, opposite party have placed reliance on Annexure-R1, report of investigator Sh. Sachin Gulati, who was engaged by opposite party, after lodging accidental claim with them by the complainant. Vide his report, he intimated that the complainant is running a travelling agency in the name and style of Kargil Taxi Stand, which fact was also admitted by his sister in law. He also snapped photographs of the taxi stand of the complainant, bearing his name. Ex.R2 are copies of those photographs, relied in support of such report.

    5- The investigator has also mentioned after investigation that the vehicle was used for carrying passengers at the time of accident. The insured complainant had admitted that was also having a tempo traveller and school bus and that there is a religious place in his village and religious people travel in his vehicle easily for visiting Brindaban, Haridwar and other places.

    6- But in proof of this report Annexure-R1, its author Mr. Gulati has not been examined, nor copy of statement of the persons, testifying before him that the complainant was operating Kargil Taxi Stand, is placed on the record. Furthermore, affidavit of Mr. Sachin Gulati, in support of the plea, is also not filed. Had affidavit of Mr. Gulati been filed, alongwith statements of persons, testifying running of taxi stand by the complainant, we would have been able to accept such plea. But without evidence, we are unable to believe this plea of the opposite party. Consequently, there is no legal material worth the name on the record that at the time of accident, vehicle of the complainant was being used as a taxi, for commercial purpose.

    7- Taking of insurance policy by the complainant for his vehicle vide certificate of policy Ex.C1 and Ex.C2, no doubt, shows that the vehicle was insured as a private car, but in violation of the policy, it was being used for commercial purpose, as a taxi, there is no evidence worth the name. Consequently, the repudiation of the claim vide letter dated 5.8.2007 Annexure-C3, on ground that the vehicle was being used for commercial purpose, being without foundation, consequently, can not be sustained.

    8- Complainant qua his claim, had also lodged notice Ex.C6 with the opposite party, which was received by them under acknowledgement Ex.C5, but failed to settle the same.


    9- Be it stated that opposite party also engaged services of Sh. G.S. Sohal & Co. surveyor and loss assessor, who vide report Annexure-R4 dated 19.12.2002, had assessed loss of Rs.34803/- only to the insured vehicle of the complainant. Report of loss assessor is a valuable document, help of which can be taken, to ascertain the damage suffered by the insured. In this behalf, reliance placed on Prithvi Raj Vs Oriental Insurance Co. Ltd. reported in II (2005) CPJ-69(NC).


    10- In these circumstances, we allow this complaint and sequel thereto, direct opposite party, to pay Rs.34803/-, as assessed by its surveyor to the complainant with 9% p.a. interest from the date of complaint till payment and also to pay Rs.5000/- as compensation for causing harassment and Rs.2000/- as litigation expenses, within 45 days of receipt of copy of order, which be supplied to the parties free of costs.
  • SidhantSidhant Moderator
    edited September 2009
    Pawan Kumar Sharma (aged 37 years) son of Sh.Badri Parshad Sharma, resident of House No.1282, Street No.7-8, Jawahar Nagar, Moga, Tehsil & Distt.Moga.

    Complainant.

    Versus



    ICICI Lombard General Insurance Company Ltd. through its Branch Manager, ICICI Bank Tower, Bandra, Kurla Complex, Mumbai-400051.



    Opposite Party.

    Pawan Kumar Sharma complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against the ICICI Lombard General Insurance Company Ltd. through its Branch Manager, ICICI Bank Tower, Bandra, Kurla Complex, Mumbai-400051 (herein-after referred to as ‘ICICI Lombard’) -opposite party directing them to pay medical claim of Rs.230383/- and also to pay Rs.50000/- as compensation for causing mental tension and harassment or any other relief to which this Forum, may deem fit be granted.

    2. Briefly stated, Pawan Kumar Sharma, complainant got himself insured vide policy no.4034/FSH/ 01626380/00/000 for the period w.e.f. 27.11.2006 to 26.11.2007 for a sum of Rs.3 lacs. and paid premium of Rs.7200/-. That the complainant got medical treatment w.e.f. 25.11.2007 to 30.11.2007 and sent the claim alongwith requisite documents to them for payment, but they rejected the same under exclusion clause no.3.1 (i.e. pre-existing disease). That the rejection of the claim is not valid as Exclusion Clause no.3.1 is not applicable to the case of complainant because the disease was not pre-existing. The OP-ICICI Lombard itself stated that if a disease relates back to 4 years, it will not be termed as pre-existing disease & clause 3.1 will not applicable.

    That in the present case, the disease occurred about 5 years back and after medical treatment it was properly cured and the complainant was leading a healthy life. That the OP-ICICI Lombard was asked number of times for the reimbursement of his claim, but to no effect. Thereafter, the complainant also served a legal notice through his counsel on 22.9.2008, but the OP-ICICI Lombard refused to admit his rightful claim. Hence the present complaint.

    3. Notice of the complaint was given to the OP-ICICI Lombard, who appeared through Sh.H.S.Lodhi, Advocate and filed their written reply contesting the same. They took up preliminary objections that the complainant has filed the present complaint only to injure their reputation and goodwill and it deserves to be dismissed with special costs u/s 26 of Act; that the intricate questions of law and facts are involved which requires voluminous documents; that the complainant has concealed the material facts and documents from the knowledge of this Forum; that the complainant has concealed the material fact that he was suffering from Coronary Artery disease for the last five years i.e. prior to the date of inception of policy; that the treatment was taken by the complainant for Coronary Artery disease, acute inferior wall MI.

    Since the claim arose on account of and in connection with pre-existing disease, the same was excluded from the scope of the policy in question and claim was rightly repudiated as per exclusion clause 3.1 of the policy. That the claim has been decided and repudiated by TTK Health Care Pvt.Ltd. Marol, a third party administrator appointed and authorised to administer and decide the claim under the policy but they were not impleaded as a necessary party; that the complaint is not maintainable in the present form and that the complainant has got no locus standie and cause of action to file the present complaint. On merits, the OP-Insurance Company took up the same and similar pleas as taken up by them in preliminary objections. It was averred that the complainant is estopped from his act and conduct because in the Pre-Authorization Request Form duly filled and signed by him and counter signed by the hospital, it was mentioned that the complainant had heart disease for the last about five years.

    All other allegations made in the complaint were specifically denied being incorrect. Hence, it was prayed that the complaint filed by the complainant is false and frivolous and the same be dismissed with costs.



    4. In order to prove his case, the complainant tendered in evidence his affidavit Ex.A1, insurance policy Ex.A2, bills cum receipts Ex.A3 to Ex.A11, legal notice Ex.A12, acknowledgement Ex.A13, postal receipt Ex.A14 and closed her evidence.



    5. To rebut the evidence of the complainant, the OP-ICICI-Lombard tendered affidavit Sh.Ravinder Dhull Ex.R1, copies of letters Ex.R2 and Ex.R3, copy of form Ex.R4, copy of policy Ex.R5, copy of terms and conditions Ex.R6 and closed their evidence.



    6. We have heard the arguments of Sh.Pardeep Synghal ld. counsel for the complainant and Sh.H.S.Lodhi ld.counsel for the OP-ICICI Lombard and perused the written arguments filed by Sh.H.S.Lodhi ld. counsel for the OP-ICICI Lombard and have very carefully perused the evidence on the file.



    7. Sh.Pardeep Synghal ld.counsel for the complainant has mainly argued that the OP-ICICI Lombard has wrongly and illegally repudiated the claim of the complainant to the extent of Rs.230383/- on the false and fictitious ground of pre-existing disease. This contention of the ld.counsel for the complainant has full force.

    The evidence on the file shows that the complainant had not concealed any material fact or disease at the time of obtaining the medi-claim policy in question. In the Pre-Authorization Request Form Ex.R4 submitted by the complainant at the time of purchase of the medi-claim policy Ex.A2 (Ex.R5 same document) he has mentioned that he was suffering from Coronary Artery disease, acute inferior wall MI. Thus, it shows that he had not concealed from the OP-ICICI Lombard regarding his illness of Coronary Artery disease, acute inferior wall MI which he suffered about 5 years back.

    Hence, the case of the complainant is not covered under the exclusion clause 3.1 when the complainant himself had disclosed about his pre-existing disease in the Pre-Authorization Request Form Ex.R4. Therefore, the OP-ICICI Lombard had no right, title or interest to repudiate his claim on the ground of pre-existing disease. Had the complainant not disclosed about the pre-existing disease in the Pre-Authorization Request Form Ex.R4, then the case of the OP-ICICI Lombard repudiating his claim would have been covered under the exclusion clause 3.1 of the policy. In the instant case, the exclusion clause 3.1 mentioned in the policy Ex.A2 do not apply to the facts of the present case. Hence, we hold that the OP-ICICI Lombard had wrongly and illegally repudiated the claim of the complainant under exclusion clause 3.1 of the policy. On this point, the rulings 2005(1) CLT page 215 (SC), 2007(2) CLT page 186 (SC), 2008(3) CLT page 71 and 1996(3) SCR page 500 (SC) cited by ld.counsel for the OP-ICICI Lombard do not apply to the facts of the present case and are quite distinguishable.



    8. Admittedly, the complainant got himself insured for 3 lacs vide policy Ex.A2. During his treatment, he spent Rs.230383/- and produced the bills Ex.A3, Ex.A7 to Ex.A11 amounting to Rs.201321/- of Metro Hospitals & Heart Institute, Noida and bill Ex.A6 amounting to Rs.29062/- of DMC & Hospital, Ludhiana in his evidence. In rebuttal, the OP-ICICI Lombard has failed to adduce any evidence to prove that the complainant had not spent the aforesaid amount or any amount lesser than the claimed amount on his treatment for the period w.e.f. 25.11.2007 to 30.11.2007. Thus, the complainant is entitled to the claimed amount of Rs.230383/-.



    9. To prove the aforesaid contentions, the complainant has produced his affidavit Ex.A1, insurance policy Ex.A2, bills cum receipts Ex.A3 to Ex.A11, legal notice Ex.A12, acknowledgement Ex.A13, postal receipt Ex.A14 and we believe and rely upon the same. On the other hand, no reliance could be placed on the affidavit of Sh.Ravinder Dhull Ex.R1 and documents Ex.R2 to 6 and we discard the same.


    10. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has merit and the same is accepted. The OP-ICICI is directed to pay Rs.230383/- i.e. the claimed amount to the complainant alongwith interest @ 6% per annum from the date of repudiation of the claim till its payment within 30 days from the date of receipt of copy of this order. Copies of this order be supplied to the parties free of cost and the file be consigned to record room after compliance.
  • SidhantSidhant Moderator
    edited September 2009
    Arai Jayanthi,
    W/o. Late A. Gopi,
    Hindu, aged about 40 years,
    Residing at D.No.19-1-13-1AB,
    Srinivasapuram, Renigunta Road,
    Tirupati, Chittoor District. … Complainant

    And

    1. M/s. ICICI Lombard General Insurance Co. Ltd.,
    Rep. by its Branch Manager,
    Holding its office at Ground Floor, Harini Towers
    Near Head Post Office, Gangamma Temple Road,
    Tirupati, Chittoor District.

    2. India Inofline Insurance Services Ltd.,
    Rep. by its Branch Manager
    Holding its office at Ground Floor, Harini towers,
    Gangamma Temple Road,
    Tata Nagar, Tirupati.

    3. ICICI Lombard General Insurance Co. Ltd.,
    403, Center Point, JB Nagar,
    Andheri Kurla Road, Andheri East,
    Mumbai. … Opposite parties


    ORDER


    This complaint is filed under Section 12 of Consumer Protection Act, 1986 to direct the opposite parties to pay a sum of Rs.1,00,000/- being the policy amount with interest at 18% per annum from the date of claim till the date of realization, to pay a sum of Rs.20,000/- towards damages and to award Rs.5,000/- towards the costs of the complaint.


    2. The averments of the complaint in brief are as follows :
    The complainant states that the opposite party No.1 has issued a policy bearing No.4005 / 0005612 under Group Personal Accident Policy in favour of her husband A. Gopi, S/o. A. Damodar Naidu on 17.05.2007. The said policy came into force from 17.05.2007 to 16.05.2008, i.e., for a period of one year.

    The opposite party No.1 issued a certificate bearing No.622439. In the said certificate her name was mentioned as a nominee to her husband A. Gopi. That as per the terms and conditions of the said policy, the nominee is entitled to a sum of Rs.1,00,000/- in case of accidental death of the insured. To that effect the opposite party No.1 has issued a policy certificate in favour of her husband. Herself and her husband are residing at Renigunta Road, Tirupati. Her husband was maintaining the family by running a petty teashop. The entire family is solely depending income of the said teashop run by her husband. That on 02.05.2008 at about 10.20 a.m., her husband met with fire accident due to leakage of gas from cylinder. In the said fire accident her husband received the burning injuries to his entire body.

    Herself and her son A. Balaji also received burning injuries on their face and other parts of the body in the said fire accident. Immediately one P. Munirathnam, the house owner came to their rescue and shifted all of them to the SVRRGG hospital, Tirupati in a auto. Subsequently, all of them were shifted to KMC hospital at Chennai. But her husband died due to the severe burning injuries on 04.05.2008 at KMC Hospital, Chennai. With great difficulty herself and her son survived and recovering slowly. To that effect an FIR in crime No.136 of 2008 is registered by the Alipiri Police, Tirupati. That she has approached the opposite party No.1 and submitted claim application for insurance amount of Rs.1,00,000/- due to the death of her husband in the fire accident. But without any reason, the opposite party No.1 has bluntly refused to settle her claim by stating that the policy will not cover for the death in the fire accident.
    The denial of her claim by the opposite party No.1 is illegal and amounts to deficiency of service. The complainant issued a legal notice dated 18.10.2008 to the opposite party No.1 calling him to settle her claim. The opposite party No.1 received the legal notice but neither gave reply nor complied with the demands. The complainant is put to severe mental agony and torture. She is also entitled to the damages.
    Hence, this complaint.


    3. The opposite party No.1 filed counter denying most of the allegations made in the complaint and stated as follows : The opposite party No.1 states that there is no contract of insurance between this opposite party and the deceased. In the absence of any contract, the payment of compensation by this opposite party does not arise. Further according to the complainant, the policy is issued under the Group Personal Accident Policy and the policy does not cover the risk of fire accidents. This Forum has no jurisdiction to entertain this complaint and on this ground alone this petition is liable to be dismissed.
    The petition is bad for non-joinder of the proper and necessary parties and the alleged accident alleged to have been caused on 02.05.2008 at about 10.20 a.m. As per the statement of the deceased, he was taken to the SVRRGG Hospital immediately by P. Munirathnam. But his statement was recorded on 03.05.2008 at 10.45 p.m. at Chennai. The delay in lodging the FIR raises suspicion about the alleged accident and that investigator was appointed to investigate the alleged accident and the report is pending. In the absence of the investigation report, it is not possible to come to a conclusion whether this opposite party is liable to pay compensation or not.

    Hence the petition may be dismissed with costs.
    4. The opposite parties 2 and 3 were absent.


    5. On behalf of the complainant Exs.A1 to A8 are marked.


    Ex.A1 is the certificate issued in favour of A. Gopi by the opposite party No.1 dated
    17.05.2007
    Ex.A2 is the letter issued by the opposite party No.1 in favour of A. Gopi dated
    17.05.2007
    Ex.A3 is the Xerox copy of FIR in crime No.136 of 2008 of Alipiri Police Station,
    dt.04.05.2008
    Ex.A4 is the Xerox copy of post mortem certificate dated 05.05.2008.
    Ex.A5 is the Xerox copy of the death certificate issued by the KMC, Hospital,
    Chennai, dt.21.07.2008
    Ex.A6 is the Xerox copy of household card of the complainant.
    Ex.A7 is the office copy of legal notice by the complainant to the opposite party No.1,
    dt. 18.10.2008
    Ex.A8 is the courier receipt relating to opposite party No.1
    On behalf of the opposite party No.1, Ex.B1 is marked.
    Ex.B1 is the Attested copy of Group Accident Insurance Policy.
    The complainant and the opposite party No.1 filed their written arguments.



    6. The points for consideration are :

    1. Whether there is deficiency of service on the part of the opposite parties?


    2. Whether the complainant is entitled to interest at 18% per annum on Rs.1,00,000/- from the date of complaint?


    3. Whether the complainant is entitled to Rs.20,000/- for mental agony suffered by her?


    4. Whether the complainant is entitled to Rs.5,000/- towards the costs of the complaint?


    5. To what relief?


    Point No.1:- The case of the complainant is that on 02.05.2008 at about 10.20a.m., her husband A. Gopi met with a fire accident due to leakage of gas from the cylinder. According to the complainant, the opposite party No.1 issued a policy bearing No.4005 / 0005612 under Group Personal Accident Policy in favour of her husband by name A. Gopi. On 17.05.2007 the opposite party has issued a certificate bearing No. 642439 for the period from 17.05.2007 to 16.05.2008 and the said document is marked as Ex.A1. According to the complainant, her husband was shifted to SVRRGG Hospital for treatment by Munirathnam and subsequently he was shifted to KMC hospital at Chennai where he died on 04.05.2008. In the instant case, FIR is marked as Ex.A3.

    The opposite party No.1 in his counter stated that an investigator was appointed to investigate the alleged incident and report is awaited and there is delay in registration of FIR by Alipiri Police Station. Ex.A1 clearly reveals that there was a contract between the deceased A. Gopi and the opposite party No.1. If really, the opposite party No.1 appointed a investigator for investigation with regard to the fire accident, the opposite party No.1 should have filed the alleged report of the investigator. This he failed to do so. The fire accident alleged to have taken place on 02.05.2008 and the police registered the crime on 04.05.2008 on intimation from the hospital.

    Therefore, it cannot be said that there is a delay in giving report to the police. The complainant issued Ex.A7 to the opposite party No.1 and the courier receipt was marked as Ex.A8. Failure on the part of opposite party No.1 in giving reply to Ex.A7 goes to show that the case of the opposite party No.1 is far from truth. The policy certificate issued by the opposite party No.1 clearly mentioned the scope of cover of risk and the exclusion of the risk coverage. No where in Ex.B1, it is mentioned that the risk will not cover for the fire accidental death. In the above said circumstances, the District Forum is of the opinion that the acts of the opposite party No.1 amounts to deficiency of service. This point is answered accordingly.


    Point No.2:- In view of our finding on Point No.1, we are of the opinion that the complainant is entitled to interest at 9% per annum on Rs.1,00,000/- from the date of legal notice, i.e., 18.10.2008 till the date of realization. This point in answered accordingly.


    Point No.3:- In view of our finding of Point No. 1&2, we are of the opinion that the complainant is not entitled to any damages for mental agony suffered by her. This point is answered accordingly.


    Point No.4:- The complainant claimed Rs.5,000/- towards the costs of the litigation. The amount claimed by the complainant is excessive and abnormal. Therefore, the District Forum is of the opinion that if a sum of Rs.1,500/- is awarded towards the litigation expenses, it will meet the ends of justice. This point is answered accordingly.


    Point No.5:- In the result, the complaint of the complainant is allowed in part directing the opposite parties to pay a sum of Rs.1,00,000/- with interest at 9% per annum from the date of legal notice, i.e., 18.10.2008 till the date of realization and also to pay Rs.1,500/- towards the costs of the complaint to the complainant.

    Time for compliance is 6 weeks.
  • SidhantSidhant Moderator
    edited September 2009
    Complainant:



    Mr. Abraham Joseph

    No.17, Palm Groove

    Mattackal

    Abey Bhavan

    Bangalore- 560 043




    /vs/


    Opposite Parties:


    1. The Divisional Manager

    The ICICI Lombard General

    Insurance Ltd.,

    Richmond Road

    Bangalore-560 025




    O R D E R


    This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the Opposite parties (Ops in short) for the payment of Rs.52,545/- with costs and damages of Rs.10,000/-.



    The brief facts of the case are that the complainant and his wife are the policy holders of the Op bearing policy No.4034/RIS/RIS 0029276/00/000. The complainant was hospitalized for surgery of cyst at his gum at Hosmat Hospital, Bangalore on 26th December 2007 and discharged on 28th December 2008. After the discharge, as per the assurance of the Ops, the complainant submitted all documents, bills and claimed the medical expenses under medi claim policy No.4034/RIS/RIS0029276/00/000 for an amount of Rs.51,545/-. The complainant approached the OP, it was assured that it was being under the process and complainant continuous request with the Op, assured that medi claim would be settled, but all of a sudden it was rejected by the Op. The complainant issued a legal notice to the Op through an Advocate, to settle the medi claim for Rs.52,545/- and the complainant received the evasive reply from the OP. Hence the complainant approached this forum.



    Ops appeared through their counsel, filed their version and also gave evidence by way of affidavit. Complainant gave his evidence by way of affidavit. Complainant submitted written arguments and counsel of Op submitted oral arguments.



    In this case, all the facts have been admitted, reason for the repudiation of the claim of the complainant was, as per the exclusion clause No.3.3 “Expenses incurred on treatment of following disease within the first two years from the commencement of the policy will be payable”. In this clause among other disease, the following ailment is also included. The said ailments are “skin and all internal tumors/cysts/nodules/polyps of any kind including the disease limits unless malignant/adenoids and hemorrhoids’. According to learned counsel for Ops, the complainant is also a party to the agreement and as per the exclusion clause, complainant is not entitled for any reimbursement because the treatment taken by the complainant was within two years from the commencement of the policy.

    No doubt there is an exclusion clause under which the complainant is not entitled for the reimbursement of the amount spent for his ailment. All these schemes are for the benefits of the persons who obtains the policy anticipating the disease. The persons will not be knowing of their disease they will get in future at the time of obtaining the policy. At the time of obtaining the policy majority of persons will not go through the details of terms and conditions. It is also not known as per the pleadings of Ops these terms and conditions were brought to the knowledge of the complainant. Therefore complainant is entitled for the reimbursement of the amount spent for his ailment. Non-payment of the said amount, amounts to deficiency in service.


    In view of the discussions made above, we are of the opinion that the complainant has proved the deficiency in service on the part of the Ops. Accordingly, we pass the following order.

    O R D E R

    Complaint is allowed. Opposite parties 1 to 3 are jointly and severally.

    Opposite parties 1 to 3 are directed to reimburse an amount of Rs.52,545/- (Rupees Fifty Two Thousand Five Hundred Forty Five only) to the complainant within six weeks from the date of this order with costs of Rs.2,000/- (Rupees Two Thousand only)
  • SidhantSidhant Moderator
    edited September 2009
    Complainant:



    Mukul Sarkar,

    Son of Pashiruddin Sarkar,

    Vill.: Parsha, P.O.: Itahar,

    P.S. : Itahar, District: Uttar Dinajpur.

    VS

    Opposite Parties:



    1. I.C.I.C.I. – Lombard General Insurance Company Limited,

    Represented by the Regional Manager,

    I.C.I.C.I. – Lombard General Insurance Company Limited,

    3rd Floor, Block – B, J.K. Millennium Centre,

    46 D, Chowringee Road, Kolkata: 700 071.



    2. M/s – Roy Enterprise,

    Represented by -

    Pradip Kumar Roy (Proprietor),

    Vill.: Sudarshanpur (Siligurimore),

    P.O. & P.S.: Raiganj, District: Uttar Dinajpur.


    Record is put up today for delivery of order arising out of the hearing over the W.V. submitted O.P. / Accused No. 2. The matter is heard on the other day in presence of both sides by filing this W.V. the O.P. / Accused No. 2 claimed certain amount i.e. Rs.25,000/- of compensation against the complainant.


    The main contention of O.P. / Accused No. 2 is that he has been unnecessarily dragged into this execution case. His contention is that in original case i.e. in Consumer Case Number 05/2007, he was the O.P. / Accused No. 2. He appeared in the said case and contested it through out and this Forum finally ordered an award in favour of the complainant against the O.P. / Accused No. 2, I.C.I.C.I. – Lombard General Insurance Company Limited; but no award in any amount was passed against this O.P. / Accused No. 2. The last submission is that in spite of the complainants within knowledge that no award was passed against the O.P. / Accused No. 2, yet he has been made a party to this execution case.


    Decisions with reasons:


    It is a very peculiar case we have never come across to, here one of the O.P. is demanding compensation against the petitioner against his frivolous prosecution. If we go through the relevant portion of the Judgment passed in C.R. Case No. 05/2007, we get it very very clear that actually, no order of award has been passed against this O.P. / Accused No. 2. Ld. Lawyer for the petitioner submits that the present C.R. case is not a complaint within the meaning of Consumer Protection Act, 1986. So, in case of frivolous complaint the question of payment of compensation to the O.P. by the complainant does arise.


    We never dispute that this C.R. case is not a complaint, but a execution case. But we can not ignore the cogent fact that no award was passed by this Forum against this accused No. 2. So, we may raise a pertinent question, then why this accused No. 2 has been dragged into this execution case. He has appeared through his lawyer, contested this execution case till today, though there is no demand made against him by the complainant. It is needless to say that throughout the period of hearing of this execution case the O.P. / Accused No. 2 has certainly incurred a substantial expenditure. Now, we do find that this Act provides compensation only for filing of frivolous complaint. But at the same time we cannot bypass the unnecessary implication of a person in any execution case with which he has no concern at all. It is the principal of general law that when Act itself is silent about any relief which a person is entitle to, principal of natural justice will prevail and govern the further proceeding of the case or the matter in dispute. No where from the record nor from the submission of the Ld. Lawyer for the petitioner, we are convinced that dragging the O.P. / Accused No. 2 into this Execution Case is justified. So, finally in our view an award of token compensation in favour of the O.P. / Accused No. 2 against the complainant, Mukul Sarkar will meet ends of justice.


    So, the complainant is directed to pay of Rs.1000/- (rupees one thousand) only as a token compensation to the O.P. / Accused No. 2 within one month from the date of this order failing which an annual interest at the rate of 9% will be levied till realization.
  • SidhantSidhant Moderator
    edited September 2009
    Mohamad Ali son of Yusuf Resident of village DudluNala, Post Office Kautla, , Tehsil Sadar, District Mandi, H.P.

    …Complainant

    V/S


    ICICI Lombard General Insurance Ltd through its Manager ,C/0 Sahib Complex Ist Floor Plot No.118/9 College Road, Mandi, H.P.

    …..Opposite party

    ORDER.

    This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party .The case of the complainant is that he was owner of buffalo which was got insured with the opposite party vide policy No. 4057/0000098 Annexure C-1 and tag No 148934 for the period from 27-3-2008 to 26-3-2011. During the currency of the policy, the buffalo died . The complainant reported the matter to the Veterinary Doctor and post mortem of the dead animal was conducted there.
    It has been averred that the matter was thereafter reported to the opposite party for settlement of the claim and all the requisite documents were also supplied. It has been alleged that the opposite party has repudiated the claim vide letter dated 23-8-2008 Annexure C-2without any reasonable ground . The complainant has alleged that the repudiation of the claim is arbitrary, without application of mind and amounts to unfair trade practice as well as deficiency in service on the part of the opposite party. On these facts , the complainant has sought a direction to the opposite party to pay Rs.14,000/- , the assured sum of the cattle with interest at the rate of 12% PA from the date of death and also to pay Rs.5500/- as litigation charges and Rs.5000/- as compensation.

    2. The opposite party resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable that the opposite party has insured the cattle subject to certain limitations , exceptions and conditions and if these terms and conditions are not complied with ,the insured is not entitled for any compensation, that negligence is one of the exceptions and the same is not covered under the policy of insurance, that the claim has been repudiated after having given a deep thought to it, that the animal had died in an accident i.e. falling from a height while leaving the buffalo for grazing and it was the duty of the owner to take due care and caution and the owner was negligent while leaving the buffalo for grazing . Also it was the duty of the insured to make better arrangements to feed the animal in tough circumstances .
    On merits , it has been admitted that the cattle was insured with it and rest of the allegations have been denied . It has also been averred that the complainant must be put to strict proof whether the buffalo which has died in accident was the same buffalo which was insured with it or some other cattle . It has further been averred that the claim submitted by the complainant was rightly repudiated . It has been averred that no cause of action accrued in favour of the complainant to file the present complaint . The opposite party had prayed for dismissal of the complaint.

    4. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.

    5. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . It is admitted case of the opposite party that the animal in question was insured with it and it died during the currency of the insurance policy.. However , the claim of the complainant has been repudiated only on the ground that the animal died due to the negligence on the part of its owner as it died of an accident on account of falling from a height and it was the duty of the owner to keep the animal away from heights .

    6 Now the question which arises for consideration before this forum is as to whether the opposite party was justified in repudiating the claim only on this ground . The onus was upon the opposite party to prove that the animal died due to negligence on the part of its owner . . However , no material has been placed on record by the opposite partyto show that the owner of the cattle was negligent . It was incumbent upon the opposite party to place on record statements of witnesses or their affidavits to establish negligence on the part of the complainant but the same had not seen the light of the day. There is no concrete material on record on the basis of which it can be concluded that the complainant was negligent .In the absence of any evidence with respect to negligence on the part of the complainant, we have no hesitation to conclude that the complainant has proved that the opposite party had been deficient in providing service. As per the cover note Annexure C-1,the cattle was insured in the sum of Rs.14,000/- on 27-3-2008 with the opposite party. Hence the complainant is held entitled to Rs.14,000/- on account of death of the insured cattle.

    7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.14,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by him due to deficiency in service and also to pay a sum of Rs.1500/- as costs of litigation.
  • SidhantSidhant Moderator
    edited September 2009
    Gurdev Singh son of Partap Singh resent of Village Jandiali, Tehsil and District Ludhiana.
    Versus

    1. Sanjivini Med Save health Care Ltd. Through its Chairman/Director, ICICI Bank Feroze Gandhi Market, Ludhiana.

    2. ICICI Lombard through its Chairman/Director/Manager, Feroze Gandhi Market, Ludhiana.

    3. Jandiali Gillan Cooperative Agricultural service society Limited through President/Secretary.

    Complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘Act) against the Sanjivini Med Save health Care Ltd. through its Chairman/Director and others for directing the OPs to pay Rs.188405/- claim of the complainant and to pay Rs.10000/- as compensation on account of mental torture and agony besides costs of litigation.

    2. Brief facts are that complainant is an agriculturist by profession and member/share holder in OP.3. That OP.3 had insured him medically through OP.1 and 2 under “Sanjivini Health Care Scheme” upto Rs.2 lacs and paid the complainant had Rs.400/- as premium. Complainant was issued policy number 4016/0000968 which was valid from 14.1.2006 to 31.3.2007 and a card bearing no.8601100004587A and society code cum account no.279-J-253 was given to him.

    That on one unfortunate day complainant suffered from a heart attack on 1.7.2006 and was admitted to CMC and Hospital, Ludhiana, he was admitted vide admission no.C7050598 and remained there till 08.07.2006 during that period he spent Rs.44631/-. That the condition of the complainant worsened and he was shifted to Oxford Hospital Pvt. Ltd, Lajpat Nagar, Bhagwan Mahavir Marg, Nakodar Chowk, Jalandhar, where a bypass surgery was performed on him. There he remained admitted from 8.7.2006 to 27.7.2006 and spend Rs.138635/- on treatment and Rs.5139/- on medicines purchased from Gujral Medical Hall, 305, Lajpat Nagar, Jalandhar. That total amount spent by the complainant on his treatment was amounting to Rs.188405/- for the period from 1.7.2006 to 27.7.2006. That the complainant was hale and hearty when got insured. That he was not in a position to inform the Ops as he was not having Insurance Identity Card with him, whereas, his family members had informed the Ops accordingly within 24 hours of the complainant getting admitted in CMC and Hospital, Ludhaina, but got no satisfactory answer. Lateron, the complainant himself went to the Ops alongwith card and bills of his medical expenses, they returned him on the ground that he had not presented the claim within time. That the Ops were deficient in service and are liable to pay the claim of the complainant alongwith compensation. Hence this complaint.

    3. OPs no.1 & 3 did not appear despite service, so they were proceeded against exparte.

    4. OP.2 took up preliminary objections that the complaint is barred under section 26 of the Act; that the complaint is not maintainable as the complainant had not produced any documents on record of the Forum; that the complaint is bad for misjoinder of parties since OP.2 is not a necessary/proper party; that the complainant is not a consumer under the Act; that the present claim is not maintainable in terms of clause 13 and sub clause 12 of the insurance policy. On merits, it was admitted that the complainant has obtained the insurance policy for its members under the scheme called Sanjivni Health Care Scheme. It is averred that the complainant was suffering from the disease ie. Heart ailment for which he was treated as alleged. That the complainant had the knowledge of such disease but had willfully and intentionally suppressed the material information from Ops at the time of obtaining the insurance policy in question. Further, submitted that the complainant has not lodged any claim with the Ops regarding the alleged claim. That the complainant never informed the Ops within 24 hours as alleged nor visited them. The story put forward is false frivolous, afterthought and concocted one. All other allegations made by the complainant were denied by Ops being wrong and incorrect. So, the complaint deserves dismissal.

    5. In order to prove their versions, both the parties led their evidence by way of affidavits and documents and stood heard through their respective counsels.

    6. The complainant argued that he got insured under “Sanjivini Health Care Scheme” upto Rs.2 lacs and paid the premium of Rs.400/- of policy no..4016/0000968 which was valid from 14.1.2006 to 31.3.2007 and was having a card bearing no.8601100004587A. That complainant argued that he suffered from a heart attack on 1.7.2006 and his condition was critical and admitted to CMC and Hospital, Ludhiana, and remained in the hospital till 08.07.2006 with admission no.C7050598 and spent Rs.44631/- for this period Ex.C1 to Ex.C.32. He further argued that as condition worsened and he was shifted to Oxford Hospital Pvt. Ltd, Lajpat Nagar, Bhagwan Mahavir Marg, Nakodar Chowk, Jalandhar, where a bypass surgery was performed on him and remained admitted from 8.7.2006 to 27.7.2006 and from this period he paid medical expenses amounting to Rs.138635/- bills Ex.C33 to Ex.C42 and Ex.C50. Further medicines for Rs.5139/- purchased from Gujral Medical Hall, 305, Lajpat Nagar, Jalandhar Ex.C43 to Ex.C49. He also argued that my family members informed the Insurance Company-OP2 within 24 hours but did not get any satisfied answer when after discharge from the hospital himself went to OPs and presented his card and medical bills but they returned the same as not presented within time. Therefore my total claim for Rs.188405/- is genuine and legal.

    7. Whereas, the OP.2 has argued that the complainant has not lodged any claim with the company regarding the alleged treatment Ops also argued that the complainant was suffering from disease i.e. heart ailment treatment as alleged before the inception of Insurance Policy.

    8. Op.2 also argued that non-payment of claim is not the case of deficiency in service and that the Ops are not liable to pay the claim which comes up to Rs.188405/- which the complainant spent during the stay for the period from 1.7.2006 to 8.7.2006 at CMC Hospital Ludhiana and from 8.7.2006 to 27.7.2006 at Oxford Hospital Pvt. Ltd, Lajpat Nagar, Bhagwan Mahavir Marg, Nakodar Chowk, Jalandhar, he has spent Rs.138635/- and also purchased medicines for Rs.5139/- purchased from Gujral Medical Hall, 305, Lajpat Nagar, Jalandhar.



    9. The Op.2 also argued that the complainant willfully, intentionally suppressed and withhold the material the information of his disease which he was having prior knowledge and at the time of inception of the policy. Therefore, Op.2 argued that the total expenditure of Rs.188405/- for his treatment during the period from 1.7.2006 to 27.7.2006 during the stay at CMC Hospital Ludhiana and Oxford Hospital Pvt. Ltd, Lajpat Nagar, Bhagwan Mahavir Marg, Nakodar Chowk, Jalandhar, is ingenuine and illegal.

    10. It is also mentioned here by the Ops that the complainant has not submitted any documents proving his treatment and stay at the hospital at CMC and Hospital, Ludhiana and at Oxford Hospital Pvt. Ltd, Lajpat Nagar, Bhagwan Mahavir Marg, Nakodar Chowk, Jalandhar.

    11. It is further noted that regarding the General Health Insurance Policy at Para 6 (Ex.R2) the Ops argued that the claimant must file the claim within 30 days from the date of completion of the treatment. In this case, no claim has been filed with the OPs. The OP.2 argued that no claim has been lodged by them till date.

    12. From the above facts and figures it is clear that the complainant has not filed any claim with the OPs. In fact as per General Health Insurance Policy Ex.R2 at para 6 the claim must be filed within 30 days form the date of application of the treatment but in this case no claim has been filed to the Ops.

    13. The complainant could not produce any proof before the Forum in support of any documents which he has submitted to the OP for claim of Rs.188405/- which he spent on his treatment. While going through the discussions and facts at the case the Forum has reached at the conclusion that the complainant has not submitted any claim for Rs.188405/- which he has spent on his treatment during the hospitalization and treatments for the period 1.7.2006 to 08.7.2006 at CMC hospital, Ludhiana and 08.07.2006 to 27.07.2006 at Oxford Hospital Pvt. Ltd, Lajpat Nagar, Bhagwan Mahavir Marg, Nakodar Chowk, Jalandhar.

    14. Hence the complaint filed by the complainant has no merits and the same is dismissed. No order as to cost. Copies of this order be supplied to the parties free of cost and file be consigned to record room after compliance.
  • SidhantSidhant Moderator
    edited September 2009
    Pawan Kumar son of Sh. Banarasi Dass, resident of 3209, Sector 41-D, Chandigarh presently, ward no.7, Purana Bazaar, Machhiwara, Tehsil and District Ludhiana.

    Versus

    1- ICICI Lombard General Insurance Company Limited, 108, Surya Tower, 5th Floor, Space no.1, The Mall, Ludhiana-141001 through is Branch Manager.

    2- ICICI Lombard General Insurance Company Limited, Regd. Office ICICI Bank Towers, Bandra Kurla Complex, Mumbai-400051, India through its Chief Executive Officer.


    1- Complainant being owner of Innova vehicle bearing no.PB-23E-8550, go it insured vide policy no.3001/52353524 with opposite party, valid from 21.8.2007 to 20.8.2008. The vehicle was driven by son of the complainant. On 6.3.2008, son of the complainant had gone to Gobindgarh on the vehicle to see his sister Suman. On 7.3.2008, he left for Machhiwara from Gobindgarh earlier in the morning, on account of thick fog, son of he complainant could not see parked Tata-407 vehicle, as the same as parked without light. Consequently, due to fog, son of complainant rammed his Innova car with Tata-407. Accident was immediately reported to opposite party, who allotted claim no.MOT-00731172. They appointed Sh. Jaswinder Singh Surveyor and Loss Assessor, who advised them to take the vehicle to Radiant Toyota, Ludhiana, for repair. The vehicle was taken to Radiant Toyota, where Jaswinder Singh reached and engineers of the company, opened the car in presence of Jaswinder Singh. Estimate was prepared and Jaswinder Singh allowed to get the vehicle repaired as per estimate. He spent Rs.1,39,061/- on repairs. But opposite party till now did not grant the claim with malafide intention, amounting to deficiency in service on their part. Hence, entitled for Rs.1,39,061/- spent on repairs with interest @ 12% p.a., to which they failed o pay despite service of notice. Also entitled for compensation of Rs.1 lac on account of harassment and Rs.11000/- as litigations expenses.

    2- Opposite party claimed in reply that this Fora has no jurisdiction, as there is no deficiency in service on their part. Getting his vehicle insured by the complainant and lodging claim qua such vehicle under the policy is admitted. But averred that on receipt of claim, it was duly registered, entertained and processed. After completing formalities and applying their mind, claim was repudiated in terms of the insurance policy, as no claim vide letter dated 24.3.2008. It was done, as he vehicle was plied for hire and reward, which is exclusion as per terms and conditions. Because he had obtained insurance of the vehicle, as a private vehicle and he violated conditions of he policy by plying the vehicle for hire and reward. Therefore, complaint is not maintainable. However, averred that on receipt of claim from the complainant, Sh. Arpan Gupta Surveyors and Loss Assessors, was appointed to assess the loss, who personally inspected the vehicle and prepared report dated 17.3.2008, assessing loss of Rs.88,664/-. Sh. A.P. Singh was appointed investigator, to investigate own damage claim. He made thorough investigation and submitted his report that the vehicle was used as a taxi on hire and reward and son of the complainant Sh. Sanjeev Kumar was running business of taxi service from Dashmesh Taxi Stand, Machhiwara. Sh. Sanjeev Kumar before the investigator, also confirmed running the vehicle as taxi. After receipt of such reports, claim was rightfully repudiated. They have denied that Sh. Jaswinder Singh was appointed as surveyor and loss assessor and he had advised the complainant, to get the vehicle repaired from Radiant Toyota, Ludhiana. Rather, they had appointed Sh. Arpan Gupta Surveyor and Loss Assessor.

    3- Both parties adduced evidence in support of their claims and stood heard through their respective counsels.

    4- It is contended on behalf of the complainant that opposite party have taken false plea of not appointing Jaswinder Singh as surveyor and loss assessor and secondly, that they are guilty of not deciding claim of the complainant till filing of the claim and fabricating false evidence, to repudiate the claim. The investigator had given false report and such fact is established on the record. On the other hand, on behalf of Insurance Company, it was argued that no false plea was ever taken and whatever defence by opposite party, is based on material on record. There is no deficiency in service on their part and claim is rightfully repudiated, as it was proved to the hilt that the insured vehicle was being run on hire and reward basis by son of the complainant. Complainant simply retired as class-IV employee, had purchased vehicle, to operate and run by his own son on hire and reward, which fact is fully established.

    5- Be it stated that obtaining of insurance policy from opposite party by the complainant, is no at all in dispute. Therefore, we shall straightaway look into the reasons of repudiating the claim. But before we do so, would prefer contentions of the parties.

    6- Complainant has alleged that opposite party had engaged Sh. Jaswinder Singh surveyor and loss assessor and at his advice, took the vehicle for repairs to Radiant Motors, Ludhiana and it was he, who had prepared the estimate. Whereas, opposite party had denied it specifically, by claiming that surveyors and loss assessors appointed by them was Sh. Arpan Gupta and not Jaswinder Singh. Ex.R6 is report dated 25.4.2009 of surveyor Arpan Gupta. Though report Ex.R6 bears signatures and stamp of Arpan Gupa. But assessment print Ex.R7 contains signatures and seal of Arpan Gupta, but also mentions about surveyor as Jaswinder Singh. Jaswinder Singh as per assessment print, had assessed loss on 24th March, 2008. So, contended on behalf of complainant that opposite party stands falsified, by denying claim that Jaswinder Singh was not appointed surveyor by them. But as per affidavit of Arpan Gupta, he was appointed surveyor and loss assessor and submitted the report. If for assessment of the loss to he vehicle, Arpan Gupta had deputed his employee, associate or technical person named Jaswinder Singh, to assess the loss, same would not convert status of said assessor Jaswinder Singh, as engaged by opposite party. Because they directly never engaged Jaswinder Singh for the purpose. Therefore, this aspect that opposite party denied appointing Jaswinder Singh as loss assessor, would be of no consequence. Consequently, we can believe affidavit of the complainant that it was on asking of Jaswinder Singh that he took the vehicle to Radiant Toyota and got it repaired from them.

    7- Second discrepancy referred by the complainant is that as per opposite party, they had repudiated the claim vide letter Ex.R3 dated 24.3.2008. Loss to the vehicle of the complainant was also assessed by Jaswinder Singh as per Ex.R7 dated 24.3.2008. He says these circumstances that opposite could not have been so fast, to repudiate the claim, the day assessment of loss was made by is representative. However, repudiation of the claim vide letter Ex.R3 dated 24.3.2008 , can not be tagged with assessment dated 24.3.2008, recorded in Ex.R7. Because assessment was qua the loss. Whereas, the repudiation was on account of infringement of the policy, by plying the vehicle on hire and reward. That repudiation that the vehicle was plied in violations of the policy for hire and reward, was based upon the investigator report Ex.R4 of Sh. A.P. Singh investigator. To pove this repot, Sh. A.P.Singh appeared as witness, by filing own affidavit Ex.RW3/A. So, we feel that no benefit can drawn by the complainant from the fact that loss was assessed on 24.3.2008 by Jaswinder Singh, on which date, claim was repudiated by the opposite party vide letter Ex.R3. Because repudiation is not based upon report of the surveyor, but on report Ex.R4 of the investigator Sh. A.P. Singh. Therefore, no benefit flows from such aspect to the complainant.

    8- Now adverting to policy of the complainant. Complainant had taken insurance policy under private car package policy(Ex.C1) from the opposite party. This policy contains limitations as to use of motor vehicle. It covers use for any purpose other than (i) hire and reward ; (ii) carriage of goods; (iii) organized racing etc. So, opposite party has taken defence that the vehicle was insured under private car package, but in violation of the policy, was being used for hire and reward.

    9- Sh. A.P. Singh investigator vide repot Ex.R4, found, concluded and conveyed to opposite party that Pawan Kumar is retired as class-IV employee from Irrigation Department, getting pension of Rs.5000/- per month. His son Sanjeev Kumar purchased the vehicle in question and using the same, as taxi. The vehicle had travelled more than 1 lac kms in just 2 years of purchase. He had also recorded statement Ex.R5 of son of the complainant Sh. Sanjeev Kumar, admitting that using the vehicle as taxi on hire and from income, paying installments of the vehicle. But on behalf of the complainant, argued that Ex.R5 statement was never made by son of the complainant Sh. Sanjeev Kumar to investigator A.P.Singh and it is a forged document. We have no material to reflect that this document is false. If it is so, then we would not be competent to decide question of forgery. As such matter can only be decided by civil court and not in summary inquiry by the Consumer Forum.

    10- The investigator had also conducted inquiry in the taxi stand, Machhiwara, to conclude his findings. But argued that no such evidence has been produced by opposite party, to prove allegations of using the vehicle for hire and reward. No doubt, evidence of oher persons, who had conveyed to investigator that son of he complainant was using the vehicle as taxi, was recorded or produced. But we feel that there is no necessity to do so in view ofown admission of Sanjeev Kumar son of the complainant before the investigator.

    11- It is settled law that if private vehicle is used as taxi for hire and reward, claim can be repudiated. Reliance placed on cases reported as Joginder Singh Vs Oriental Insurance Company Limited & Ors. IV(2008)CPJ-240(NC); National Insurance Company Limited Vs R. Raghunath I(2004)CPJ-589(Tamilnadu State Commission); United India Ins. Co. Ltd. Vs Deepakkumar Manubhai Patel II(2003)CPJ-572(Gujarat State Commission).

    12- We shall not be fair to the complainant, if fails to discuss his contention. It was argued on behalf of the complainant that his claim is liable to be granted as non standard claim and in support, has drew our attention to cases reported as Rattan Chand Vs New India Assurance Co. Ltd. 2006(2)CPC-754(Punjab State Commission) and National Insurance Co. Ltd. Vs Nitin Khandelwal 2008(3)CPC-559(SC). But question of granting damages on non standard basis, would have arisen, had there been no violation of he insurance policy. So, such contention would be of no help to the complainant.

    13- Also, it was argued that opposite party has no placed on record any proof about issuance of repudiation letter Ex.R3 dated 24.3.2008 to the complainant. No doubt, no proof qua sending of such communication to the complainant has been placed on record. But there being no deficiency in service on part of opposite party, complainant has already filed complaint in which, we found no merits, so this aspect of leading no proof of communication of letter Ex.R3 would be of non consequence.

    14- Gist of the discussions is that opposite party, in our view, was justified in repudiating the claim, as the vehicle proved to have been used for hire and reward against terms and conditions of the insurance policy. Therefore, finding the complaint meritless, we dismiss the same.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    Md. Afzal, S/o. Khuthubuddin, age 40 years, Occ: Pvt. Employee, R/o. H.No.6-2-909, Hussainpura, Karimnagar proper and dist.

    …Complainant


    1. ICICI Lombard General Insurance Co. Ltd., R/by Authorized Signatory, Osman Plaza, H.No.6-3-352/1, 2nd and 3rd Floor, Road No.1,

    Banjanara Hills, Hyderabad – 500 034.

    2. The Branch Manager, ICICI Lombard General Insurance Co. Ltd., Hanamkonda X-Road, Warangal dist.

    3. M/s. Garuda Motors, R/by its Authorized Dealer for Piaggio Vehicles Pvt. Ltd., Kothirampur, Hyderabad road, Karimnagar.


    1. The averments in brief of the complaint are that the complainant is consumer of opposite party no.1 & 2 and he purchased one APE Pick-up Van bearing no.AP-15-T/R-3662 under hypothecation with Cholamandal DPC Finance Ltd., Hyderabad branch for his self-employment. The vehicle is insured with opposite parties through opposite party no.3 namely Garuda Motors vide policy no.303/0082113/00/000 Dt: 21.8.2006 covering risk of damage in accident showing the value of the vehicle is of Rs.1,22,597/-. On 9.11.2006 while the vehicle was returning to Karimnagar when it was reached near Chalimeda Anand Rao Mango Tree garden at Muqdumpoor village at about 6.30 one Lorry bearing no.AP-11-W-2353 coming from its opposite party direction with rash and negligent manner dashed his vehicle and due to which his driver died on the spot and the Auto was also damaged.

    A case in Crime No.348/06 is registered for the offence U/s. 304-A of I.P.C. by the Police, Karimnagar Rural. After the accident he got repaired the vehicle with opposite party no.3 who issued estimated bill for Rs.90,829/-. He intimated about the accident and damage to the opposite parties by letter Dt: 18.11.2006 and submitted all necessary documents at their request. But the opposite parties rejected the claim by their letter Dt: 30.11.2006 on the ground that at the time of accident the driver is not having valid driving license. Infact the driver is having license and the same was misplaced at the time of accident. The opposite parties made a false plea to evade payment inspite of issuance of legal notice Dt: 5.5.2006 they did not pay the amount. Hence, it is prayed to direct the opposite parties to pay an amount of Rs.90,829/- with 18% interest and Rs.20,000/- towards mental agony and costs of complaint.


    2. The opposite party no.1 filed counter alleging that the APE Pick-up Van bearing no.AP-15-T/R-3662 was insured with opposite party no.1 by the complainant on 21.8.2006 which is valid upto 20.8.2007 under certain terms and conditions to cover own damages including condition that any person including insured is entitled to drive provided that a person driving holds an effective driving license at the time of accident and he is not disqualified from holding or obtaining such a license and it is also provided that he is not holding an effective driving license may also drive. Hence they repudiated the claim of the complainant. On examining the documents submitted by the complainant it is found that the driver is not holding valid driving license at the time of accident. Hence, they rejected the claim of the complainant by letter Dt: 30.11.2006. There after the complainant did not approach at any time but after lapse of one and half year he has issued a legal notice with a false claim and prayed to dismiss the claim of the complainant since he violated the terms and conditions of the complaint.


    3. The complainant filed sworn affidavit reiterating the contents of the complaint. On behalf of complainant Ex.A1 to A12 are marked and on behalf of opposite parties Ex.B1 to B5 are marked. Ex.A1 is the Sales Certificate issued by opposite party no.1 in favour of petitioner for purchase of the Auto for a sum of Rs.1,25,200/- Dt: 24.8.2006. Ex.A2 is the policy issued in respect of the said vehicle in favour of complainant valid from 21.8.2006 to 20.8.2007. Ex.A3 is the FIR in Crime No.348 of 2006 Dt: 9.11.2006 issued by Sub Inspector of Police, Police Station, Karimnagar Rural (in 3 sheets). Ex.A4 is the letter from opposite party no.2 addressed to complainant Dt: 18.11.2006 requesting to send documents. Ex.A5 is repudiation letter Dt: 30.11.2006. Ex.A6 is the Estimates of opposite party no.3 Dt: 11.12.2006 for Rs.90,829/-(in 3 sheets). Ex.A7 is the Legal Notice issued by counsel for complainant addressed to opposite party no.2. Ex.A8 to A10 are the postal acknowledgement cards addressed to opposite party no.2. Ex.A11 is the copy of Temporary Certificate of Registration of complainant for vehicle bearing no.AP-15 T/R D - 3622. Ex.A12 is the Motor Vehicles Schedule Form of Piaggio Motor Vehicles.


    4. Ex.B1 and A2 are one and the same documents. Ex.B2 is the original Motor Insurance claim form submitted by complainant, Dt: 9.11.2006. Ex.B3 and A5 are one and the same documents. Ex.B4 is the Xerox copy of license of deceased. Ex.B5 is the Surveyor's Report Dt: 9.11.2008 submitted to opposite party no.2 (in 3 sheets).


    5. Heard, the learned counsel for the complainant contended that the complainant is owner of APE Pick-up Van bearing no.AP-15-T/R-3662 purchased from opposite party no.3, and the same was insured with opposite party no.1 & 2 under policy no.303/0082113/00/000 Dt: 21.8.2006 covering the risk of damages and in the accident occurred on 9.11.2006 caused by the driver of Lorry bearing no.AP-11-W-2353, the driver of the complainant died and the Auto is also damaged to the extent of Rs.90,829/- as estimated by the opposite party no.3, and the complainant is entitled for the said damages since the accident is occurred during the enforcement period of the policy.


    6. Interalia the learned counsel for the opposite parties contended that the driver of the complainant who died in the accident Md. Saleem has no valid driving license at the time of accident since there is violation of the terms and conditions of the policy they repudiated the claim of the complainant under Ex.B3.


    7. In view of the contentions it is to be seen whether the petitioner is entitled for the claim of Rs.90,829/- with interest along with Rs.20,000/- towards compensation?

    8. From the above referred facts there is no dispute that the petitioner is the owner of the Van bearing no. AP-15-T/R-3662 and purchased from opposite party no.3 and insured the vehicle through opposite party no.3 with opposite party no.1 & 2 by vide policy no. 303/0082113/00/000 as evident under Ex.A1. Ex.A1 is the Sales Certificate issued by opposite party no.1 in favour of petitioner for purchase of the Auto for a sum of Rs.1,25,200/-. Ex.A2 is the policy issued in respect of the said vehicle in favour of complainant valid from 21.8.2006 to 20.8.2007. Ex.A3 is the FIR in Crime No.348 of 2006 Dt: 9.11.2006 which is registered basing on a complaint of wife of driver of the opposite party no.1 Md.Saleem. Ex.A3 FIR is clinchingly proving that not only the driver died but also Auto was also damaged due to accident. Ex.A4 is the letter Dt: 18.11.2006 issued by the opposite party no.1 & 2 to complainant requesting to submit documents of Registration Certificate, Driving license, Tax paid receipt, Fitness Certificate. Ex.A11 is the original Registration Certificate of the Van bearing no.AP-15-T/R-3662 of the opposite party no.1. Thus it is clear after the accident the complainant informed about the damage caused to the Auto along with an estimate given by opposite party no.3 for a sum of Rs.90,829/-. The claim of the complainant is rejected by the opposite party that the driver is not having any valid license. On perusal of Ex.B5 can be of driving license filed by the opposite party is proving the driver is having non-transport license LMB (MCWG) with gear vehicle valid upto 18.5.2005 and transport vehicle for Motor Cab valid till 2.11.2009. This document itself is sufficient to hold that at that time of accident the driver of the complainant is having valid driving license of transport and non-transport. Even otherwise as per clause 5 of the policy Ex.A2 postulates as follows:

    "Any person including the insured provided that a person driving holds and effective Driving License at the time of the accident and is disqualified from holding or obtaining such a license. Provided also that the person holding an effective Learner's License may also drive the vehicle and such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989".



    9. Further the Surveyor report filed by the opposite parties under Ex.B5 is proving that the Auto was damaged in the accident due to hit of a Lorry. The Surveyor opined that the driving license of driver is not valid to drive the Piaggio APE model make which is the Pick-up Van purchased by the complainant. When Ex.B4 is indicating that the deceased is having transport license for Motor Cab. I do not understand how the Surveyor opined that he has not competent to drive the Piaggio which is similar to that of Motor Cab. Therefore, the rejection of the claim by the opposite party is illegal.



    10. If we come to the extent of damages the petitioner submitted estimated bill issued by the opposite party no.3 for a sum of Rs.90,829/- He did not file any photographs of the damaged Auto to enable the Forum to assess the damage. Further, he did not appoint any independent Surveyor to assess the actual value. Any how the Surveyor Report filed by the opposite party under Ex.B5, the Surveyor assessed the actual damages caused to the vehicle is Rs.25,187/-. Hence, in the absence of any proof about the damages claimed by the complainant in the interest of justice we hold that the complainant is entitled only for Rs.25,187/- as assessed by the Surveyor appointed by the opposite parties. Except the damages the complainant is entitled for any damages as claimed by him as no proof to that effect. Since the rejection of the claim of the complainant is deficiency of service, we feel the complainant is liable to be allowed partly to the extent of Rs.25,187/- with interest.


    11. In the result the complaint is partly allowed directing the opposite parties to pay Rs.25,187/- with interest @ 7.5% per annum from the date of submission of claim petition by the complainant under Ex.B2 Dt: 9.11.2006 with costs of Rs.1,000/- within one month from the date of receipt of this order.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    1. Thatikonda Prabhakar, S/o. Venkataiah, age 50 years, Occ: Employee.

    2. Thatikonda Kalavathi, W/o. Prabhakar, age 48 years, Occ: House wife.

    R/o. H. No.18-3-88/2, Ganeshnagar, Markendeya Colony, Godavarikhani town of Karimnagar district.

    …Complainants

    The ICICI Lombard General Insurance Co. Ltd., R/by Manager, Penchala Complex, 1st Floor, Opp: Court Building, Jyothingagar, Karimnagar city – 505 002.

    1. The averments in brief of the complaint are that on 6.11.2007 deceased Naresh Kumar and his friends were traveling to Godavarikhani from Hyderabad on Bajaj Discovery Motor Cycle bearing no.AP-9-BG-492, on their way when they reached near outskirts of Mogdumpur village of Karimnagar Mandal at about 6.10 AM one unknown lorry driven by its driver came in rash and negligent manner with high speed came from opposite director by over taking another vehicle and dashed to the motor cycle of the deceased. As a result first pillion rider died at the spot, and the second pillion rider sustained severe injuries and the rider of vehicle undergoing treatment in NIMS Hospital succumbed to injuries. The Police Karimnagar Rural registered a case in Cr.No.259/2007 U/s 304-A of IPC against the driver of the lorry. The Motor Cycle bearing no.AP-9-BG-492 belongs to the deceased Naresh Kumar is insured with opposite party by vide policy no.3005/50785692/00/000 valid from 27.11.2006 to 26.11.2007. And he also paid an extra premium towards the coverage of personal accident risk (P.A>0 i.e. the risk of owner-driver for sum of Rs.1,00,000/-. As on the date of accident he has also possessing valid driving license. After the accident the complainants informed the opposite parties about the accident and requested to settle the claim and issued the Legal Notice Dt: 29.4.2008 as there is no response. Hence prayed to grant assured sum of Rs.1,00,000/- with 12% interest per annum from the date of death of insured till realisation and Rs.10,000/- towards compensation and costs.



    2. The opposite parties filed counter denying the contents of the complaint alleging that the case of complainant is revealing that the accident was caused due to rash and negligent driving of driver of lorry. As such the complainants are entitled to claim compensation against the owner and insurer of said vehicle and three persons were traveling on the said vehicle at the time of accident is violation under terms and conditions of the policy. As per terms and conditions of the policy if any issue in respect of vehicle to cover risk of owner insured he must ride insured vehicle and must have possessed a valid and subsisting driving license to drive the vehicle. The complainants have not submitted any relevant documents to prove his claim and prayed to dismiss the complaint.



    3. The complainants filed their proof of affidavits reiterating the contents of the complaint and filed the documents which are marked as Ex.A1 to A10. The opposite party also filed the proof of affidavit reiterating the contents of counter and further alleged that as per the documents available the deceased was not possessing valid driving license and no documents are marked on behalf of opposite party. Ex.A1 is the attested copy of FIR with complaint Dt: 6.11.2007. Ex.A2 is the attested copy of Inquest Report Dt: 7.11.2007. Ex.A3 is the attested copy of PME Report Dt: 7.11.2007. Ex.A4 is the Xerox copy of RC, Dt: 6.1.2007. Ex.A5 is the Xerox copy of Driving License of deceased Dt: 12.6.2007. Ex.A6 is the Xerox copy of Insurance Policy Dt: 30.11.2006. Ex.A7 is the Legal Notice issued by counsel for complainant addressed to opposite party Dt: 29.4.2008. Ex.A8 is the postal receipt Dt: 29.4.2008. Ex.A9 is the Acknowledgement Card. Ex.A10 is the Xerox copy of Death Certificate Dt: 8.1.2008.



    4. The learned counsel for the complainant contended that the Motor Cycle bearing no.AP-9-BG-492 belongs to Naresh Kumar son of complainant no.1 & 2. On 6.11.2007 deceased Naresh Kumar and his 2 friends were traveling on the said Motor Cycle an unknown lorry came from their opposite party direction and hit. As a result one pillion rider died on the spot and second pillion riders sustained severe injuries and rider of vehicle died in the hospital i.e. son of complainants died in the accident since the vehicle is insured with opposite party, it has to pay the accidental benefit coverage to the complainants.



    5. The learned counsel for the opposite parties vehemently opposed the case of the complainant on the ground that the vehicle was carrying three persons at the time of accident which is violation of conditions and deceased Naresh Kumar was also not driving the vehicle at that time and he was not having any valid driving license, as such they are not entitled for any claim.



    6. Now the point arises for consideration is whether the complainants are entitled for the claim as prayed for?



    7. There is no dispute that deceased T.Naresh Kumar son of complainants herein is owner of Bajaj Discovery Motor Cycle bearing no.AP-9-BG-492 and the same was insured with opposite party by vide policy No.3005/50785692/00/000 valid from 27.11.2006 to 26.11.2007 as evident under Ex.A6. It is also in dispute that in the accident caused on 6.11.2007 the deceased died due to head injury as evident under Ex.A3 PME Report and Death Certificate Ex.A10. As seen from the FIR Ex.A1 registered in crime no.259/2007 basing on the complaint of one Chintam Venu who is one of the pillion rider and traveled with the deceased is clinchingly proving at the time of accident the deceased was only driving the vehicle and one unknown lorry came and hit the deceased. Ex.A5 copy of Driving License is clinchingly proving that deceased Naresh Kumar is having valid driving license as on date of accident 6.11.2007 and the said license is valid till 11.6.2007. Further Ex.A6 is also proving that the policy covering risk of owner-driver for Rs.1,00,000/- and necessary premium is paid. It appears that inspite of receipt of Legal Notice from the complainant under Ex.A7 the opposite party did not settle the claim and even not chosen to give any reply mentioning the reason for repudiating the claim. When documents clinchingly proving that the policy is in force as on date of accident 6.11.2007 and the deceased is having valid driving license as on date of accident and the accident is occurred while he was driving the vehicle rejection of claim by opposite party is nothing but deficiency of service, hence, the opposite parties are liable to pay Rs.1,00,000/- to the complainants with 7.5% interest per annum.



    8. In the result the complaint is allowed directing the opposite parties to pay Rs.1,00,000/- to the complainants with 7.5% interest per annum from the date of legal notice i.e. 29.4.2008 till realisation and costs of Rs. 1,000/- within one month from the date of receipt of this order. After depositing the amount the complainant no.1 & 2 are entitled to half share each.
  • SidhantSidhant Moderator
    edited September 2009
    Matena Rama Raju, S/o Rama Raju, Hindu, aged 40 years

    Cultivation, Modi village, H/o Kalavapudi

    Village, Kalla Mandal, W.G. Dist., -- Complainant



    1. The Branch Manager, ICICI Lombard General Insurance Co., Ltd.,

    Rajahmundry



    2. The Regional Manager/Operations

    Manager, ICICI Lombard General Insurance Co., Ltd.,

    Osman Plaza, 6-3-352/1,3rd and 4th floor, Road No.1

    Banjara Hills, Hyderabad



    3. The Authorised Signatory

    The Care 4 U Services India Pvt., Ltd.,

    103, MYM Estates, Tagore Mansion Lane

    Somajiguda, Hyderabad -082 -- Opposite Parties


    O R D E R

    The complainant filed the present complaint under Sec. 12 of the Consumer Protection Act with a prayer to direct the opposite parties 1 to 3 to pay a sum of Rs.1,00,000/- towards Personal Accident Policy under the Policy No. 4005/00057639, Rs.2,00,000/- towards damages for mental agony, negligence and deficiency in service together with costs of the complaint to the complainant. The averments of the complaint brief are that :

    2. The complainant having attracted by the wide publicity made by the opposite parties, by paying a sum of Rs.400/-, obtained Personal Accident Insurance Policy from the 1st opposite party on 10-4-2006 which is having a tie-up with the 3rd opposite party. The object of the policy is whenever the person dies or sustained any permanent disability, the company will pay Rs.1,00,000/- to the said person towards personal accident policy. The opposite parties accordingly issued Policy bearing No. 4005/0005739 to the complaint which was in force up to 9-4-2007. While the matter stood thus, the complainant met with an accident on 21-5-2006 when the rider of motor cycle TVS Victor bearing No. AP 37 6911 drove his vehicle in a rash and negligent manner without following traffic rules and blowing hors and dashed against the complainant while he was riding on his motor cycle bearing No. AP 37 AJ 4634 at the outskirts of Akiveedu near White Bridge, Ajjamuru village near Prawn tanks,.

    As a result of which, the complainant sustained grievous injuries and fractures and fell on the ground unconsciously. The rider of TVS Victor also received injuries in the said accident. Thereupon, the father of the complainant gave a report to the SHO, Akividu and a case was registered in Crime No. 72/2006 under Sec. 338 IPC against the rider of the TVS Victor and that the injured person was shifted to Bhimavaram Hospitals for treatment and subsequently due to seriousness on the part of the complainant’s life, the complainant was brought to Dr. Myneni V. Subbarao hospital, Vijayawada for better treatment wherein he underwent treatment in unconscious state for about 22 days. Due to the negligent treatment of Vijayawada Hospital, the right leg and his right hand are completely damaged and because of that he was shifted to Yasoda Hospital, Hyderabad and from there to Chennai and later on Bangalore for which the blood relatives of the complainant spent laks of ruppes over him towards treatment.

    While he was undergoing treatment at Yasoda Hospitals, his right leg was removed by the hospital authorities thereafter he was referred to Right Hospitals at Chennai and from there to Bangalore. During the course of undergoing treatment, the complainant underwent operation in Bangalore hospital to his fracture and the doctors fixed steel rods and plates in his body. Due to the tragic accident, the complainant’s entire physical structure was damaged and his right leg was removed and his right hand remained functionless. As a result, he is unable to perform his day to day duties. It is further averred that in the mean time, in the month of January, 2007 the wife of the complainant and blood relatives submitted claim from with all necessary enclosures to the 1st opposite party for reimbursement of the expenditure at about Rs.1,50,000/- incurred for the complainant and the 1st opposite party inturn sent the same to the 3rd opposite party since it has got tie-up. In spite of several approaches made by the complainant’s wife and the blood relatives personally and in writing, the opposite parties did not come forward to pay the insurance amount of Rs.1,00,000/- to the complainant. Because of the non-payment of the policy amount, the complainant sustained lot of mental agony etc., The act of the opposite parties in not paying the insurance amount amounts to deficiency in rendering service to the complainant therefore the opposite parties are liable to pay compensation. Thus the present complaint is filed with the aforesaid reliefs.

    3. The opposite parties 1 and 2 filed their version jointly denying the averments of the complaint and stated that as per the conditions of the policy the claimant has to inform the hospitalization within 14 days from the date of such accident and in the case on hand, the complainant having involved in the accident on 21-5-2006, intimated by way of claim in the month of March, 2007. As such, the complainant miserably failed to follow the terms and conditions of the policy in intimating his hospitalization and the alleged claim that on processing the claim of the complainant, this opposite party requested to furnish necessary documents such as, case-sheet, alcoholic report which are essential documents to process the medi-claim policy but the complainant miserably failed to produce the required documents for processing the claim that thereupon after waiting for a considerable time, this opposite party repudiated the claim as “not payable” since the complainant has not complied with the requirements as per the conditions of the policy and the same was accordingly intimated to the 3rd opposite party as such there is no deficiency in service on the part of the present opposite parties thus the complaint is liable to be dismissed with costs.

    4. The 3rd opposite party filed version separately and contended that he is carrying on business as insurance agent for General Insurance Companies that this opposite party having purchasing the policies in bulk assigns the policies to its customers as per the terms and conditions agreed between the parties, as such, he is only the agent the 1st opposite party and therefore he is not by himself liable to pay any compensation to the complainant if at all any compensation is paid which shall be paid by the insurance company and as per the terms and conditions of the policy, the complainant within 14 days from the date of the accident is obliged to intimate the accident by furnishing case sheet, status of alcoholic history at the time of taking initial treatment to show that the claim does not arise out of intentional self-injury or suicide or attempt to suicide or accident caused whilst under intoxication due to alcohol or drugs. But the complainant failed to do so and that there is absolutely no deficiency in service on his part because it has followed up the matter with the complainant diligently by addressing the letter to the hospital concern and E-mails to the opposite parties 1 and 2 to follow up the claim of the complainant. It is further stated that even to the legal notice got issued by the complainant also this opposite party accordingly given a suitable reply and therefore the complaint is liable to be dismissed with exemplary costs.

    5. The complainant in support of his case filed his proof affidavit corroborating the averments of the complaint and got marked Ex A.1 to Ex A.10. On the other hand, the opposite parties 1 and 2 filed their affidavit jointly and got marked Ex B.1 to B.3. Similarly, the 3rd opposite party filed the affidavit in support of its contentions in its version and got marked Ex B.4 to B.13.

    6. The points for determination now are :


    1) Whether the repudiation made by opposite parties 1 and 2 constitutes any deficiency in rendering service to the complainant ?


    2) Whether the complainant is entitled for the relies sought for by him against the opposite parties ? if so, on whom ?


    3) To what relief ?

    POINT No. 1:

    As seen from the material placed on record by both sides, there is no dispute about the complainant obtaining Personal Accident insurance Policy from the 1st opposite party through the 3rd opposite party who is having tie-up with the opposite parties 1 and 2. There is also no dispute with regard to the complainant met with an accident and sustaining severe injuries on the eventful day and his undergoing treatment in various hospitals for a longer period. There is also no dispute in the matter about the claim made by the complainant with the opposite parties. As per the version and affidavit filed by the opposite parties 1 and 2, their only contention is that the complainant failed to furnish necessary documents such as case-sheet and alcoholic report which are basic and essential documents to process the medi-claim. As such, the claim made by the complainant was repudiated.

    As per the complaint and affidavit filed by the complainant, it is the case of the complainant that while submitting the claim form, all the necessary documents such as copy of wound certificate, Scanning Report, discharge summary and the reports issued by the Rights Hospital, Chennai etc were enclosed. The complainant got marked the copies of such documents as Ex A.6 to Ex A.10. A perusal of the recitals of Ex A.6 to Ex A.10 clearly goes to show that there is no where mentioned in them that the injured/complainant was found under alcoholic condition at the time of their observations which itself is sufficient to come to a conclusion that the complainant at the time of the accident was not under the influence of any alcohol. It may be no doubt true that as per the conditions of the policy at Exclusion Clause No.1, “the insurance company shall not be liable for payment of any claim inter-alia arising out of intentional self-injury or suicide or attempt to suicide or accident caused whilst under intoxication due to alcohol or drugs” that means if the claimant is under the influence of intoxication intentionally involved in a self-injury or suicide or attempted to suicide then the General insurance company shall not be liable for payment of the claim. But in the case on hand, it is clearly established by the complainant that he sustained such severe injuries due to road accident which is not disputed by the opposite parties. Further, the sustaining of such severe injuries in the road accident by the complainant is also supported by FIR/ExA.3. Further the contention of the opposite parties that because of the complainant failed to produce the alcoholic report etc., they have repudiated the claim made by the complainant is not tenable.

    If at all the opposite parties 1 and 2 are having any doubt with regard to the sustaining of injuries by the complainant, it is for them to establish that at the time of accident the complainant was under the influence of alcohol. So, when it is the clear case of the accident that the complainant sustained such severe injuries in the road accident and when there is no where mentioned in the medical record that the complainant was under the influence of alcohol at the time of examination by various doctors, the contentions of the opposite parties that they have repudiated the claim as not payable since the complainant failed to comply with the requirements as per the conditions of the policy is not tenable.

    Further it is also not specifically mentioned that the alcohol report is required to settle the claim in the conditions of the policy against the column “documents required to be submitted for settling the claim”.

    In other words, it can be clearly said that the opposite parties 1 and 2 having taken such plea, ultimately failed to establish the grounds for their repudiation of the claim of the complainant.

    Under the said circumstances, the repudiations made by the opposite parties 1 and 2 is not justifiable.

    POINT NO: 2 & 3

    For the reasons stated above, we hold that the complainant is entitled to the reliefs sought for by him against the opposite parties 1 and 2 and since the 3rd opposite party is only an agent who simply processed the claim made by the complainant with the opposite parties 1 and 2, the complaint against the opposite parties 1 and 2 is to be allowed while dismissing the complaint against the 3rd opposite party. The points are accordingly answered.



    In the result, the complaint is allowed directing the opposite parties 1 and 2 to pay to the complainant the assured sum of Rs.1,00,000/- (Rupees one lakh only) with interest at 9% pa., from the date of complaint ie., 23-7-2008 till the date of realization besides a sum of Rs.5,000/- (Rupees five thousands only) towards compensation for mental agony suffered by the complainant along with a costs of Rs.500/- within 30 days from the date of due dispatch of free copy of this order.

    The complaint against the 3rd opposite party is dismissed with no costs.
  • SidhantSidhant Moderator
    edited September 2009
    Shaik Abdul Wahab,

    11/396, R.R.K.Street,

    Palamaner,
    Chittoor District. … Complainant

    Vs.

    The I.C.I.C.I. Lambord General

    Insurance Co., Ltd.,

    6-3-352/1, 2 and 3rd Floor,

    Road No.1, Banjara Hills,

    Hyderabad-34. …Opposite party

    ORDER

    This complaint is filed by the complainant under section 12 of Consumer Protection Act seeking for direction to the opposite party to pay him Rs.1,77,500/- as assessed by the surveyor, Rs.50,000/- towards the loss of income, Rs.3,125/- towards surveyor fees and costs of Rs.3,000/-.


    2. The averments of the complaint in brief are as follows:

    The complainant is the registered owner of the vehicle bearing registration No. AP 03 U 5589 and the vehicle was insured with the opposite party under the policy No.3003/1026291/00/00 which was valid from 02.02.2006 to 01.02.2007. While the policy was inforce the vehicle met with an accident on 24.09.2006 at about 2 a.m. on National Highway No.5 near Gurivindapudi Cross Road in Manubolu Mandal of Nellore District and in that accident the vehicle was badly damaged. The Manubolu Police registered a case about the accident in Crime No.125/2006. The complainant informed the opposite party about the accident. The spot survey was conducted by the authorized officer of the opposite party. On the instructions of the opposite party, the complainant took the vehicle to the company showroom garage at Chittoor who estimated the loss at Rs.3,34,517/-. The Surveyor and Loss Assessor assessed the loss at Rs.1,77,500/-. The complainant was earning Rs.500/- per day from the vehicle. The complainant submitted the claim by producing all necessary documents before the opposite party. The opposite party repudiated the claim on the ground that at the time of accident the vehicle was over loaded. The repudiation made by the opposite party amounts to deficiency in service. Hence the complaint.

    3. The opposite party filed the counter stating in brief as follows:

    They admitted the allegations that the vehicle of the complainant was insured with them and it met with an accident on 24.09.2006 and in that accident the vehicle was badly damaged and that the Manobolu police registered a case about the accident. They denied the other allegations made in the complaint and stated that they repudiated the claim in accordance with the terms and conditions of the policy. They stated that only 3 persons including the driver were permitted to sit in the cabin but at the time of accident there were 4 persons including the driver in the cabin and therefore there is violation of the terms and conditions of the policy and as such they are justified in repudiating the claim of the complainant. Since they repudiated the claim in accordance with the terms and conditions of the policy, the complainant cannot allege any deficiency in their service. Hence the complaint is liable to be dismissed.

    4. The points for consideration are:

    1) Whether there is deficiency in the service of the opposite party?

    2) Whether the complainant is entitled to the reliefs sought for?

    3) To what relief is the complainant entitled?


    5. The complainant filed his affidavit and produced the documents which are marked as Ex.A1 to Ex.A5. The opposite party filed the affidavit of its Authorized Signatory but they did not produce any documents.


    6. POINT NO.1: Ex.A4 is the xerox copy of the certificate of insurance relating to the vehicle bearing registration No.AP 03 U 5589. As per Ex.A4, the seating capacity is 3 including the driver. Ex.A1 is the xerox copy of the FIR in crime No.125/2006 of Manobolu Police Station. As per the contents of FIR 4 persons including the driver were sitting in the cabin at the time of the accident. Ex.A2 is the xerox copy of the Private and Confidential Accident Vehicle Loss Assessment report submitted by one H.Hyder Saheb, Surveyor and Loss Assessor, Chittoor. It is stated in Ex.A2 that two persons died and two persons were injured in that accident. So it is clearly proved that 4 persons including driver were sitting in the cabin of the lorry when the accident took place. So there is clear violation of the terms and conditions of the policy. The learned counsel for the opposite party submitted that since there is violation of the terms and conditions of the policy the repudiation of the claim made by the opposite party is valid and justified.

    In support of his contention he placed reliance on the decision of National Consumer Disputes Redressal Commission, Circuit Bench, Karnataka at Bangalore which was passed in First Appeal No.138/2002 between M/s.Oriental Insurance Co. Ltd., Vs. N.Rajkumar. He produced the copy of the judgment. We have gone through the entire judgment. No principle is laid down in that judgment. The order of the State Commission was set aside and the matter was remanded to State Commission for deciding the case afresh on the basis of the evidence that may be produced by the parties. He placed reliance on one more decision of Supreme Court of India reported in MANU/SC/0459/2009. In that judgment also no principle is laid down and the matter was remitted back to the District Forum for deciding the fact as to who was actually driving the vehicle at time of accident. So both these decisions are not helpful to the contention of the learned counsel for the opposite party. In B.V.Nagaraju Vs. Oriental Insurance Co. Ltd. reported in 1996 ACJ 1178. The Supreme Court of India held that the breach of carrying persons in a goods vehicle more than the number permitted in terms of the insurance policy is not so fundamental a breach so as to afford ground to the insurer to eschew liability altogether.



    It is further held that the terms of the policy of insurance need not be construed strictly but be read down to advance the main purpose of the contract. We have gone through the entire judgment of the Supreme Court of India. In that case 9 persons were traveling in the vehicle at the time of accident whereas the permitted number was only 6. In the instant case the permitted number is 3 including the driver but 4 persons including the driver were traveling at the time of accident. So in view of the decision of Supreme Court of India the insurance Company cannot escape from their liability to pay the amount as claimed by the complainant. Failure to pay the amount amounts to deficiency in service. Hence we answer this point in favour of the complainant.



    7. POINT NO.2: As per the Private and confidential Accident Vehicle Loss Assessment report which is marked as Ex.A2 the loss is estimated at Rs.1,77,500/-. The complainant is claiming the same amount. Therefore we hold that the complainant is entitled to claim Rs.1,77,500/- as compensation. The complainant claimed Rs.50,000/- for the loss of income and Rs.3,125/- towards survey fees. Having regard to the facts and circumstances of the case, we are of the view that the complainant is not entitled to claim any of those two amounts. Hence we answer this point accordingly.



    8. TO WHAT RELIEF: IN THE RESULT, the complaint is partly allowed directing the opposite party to pay to the complainant Rs.1,77,500/-(Rupees one lakh seventy seven thousand five hundred only), within 30 days from the date of communication of this order. No order as to costs.
  • SidhantSidhant Moderator
    edited September 2009
    P. Jayarami Reddy, S/o P. Venkata Reddy,

    aged 56 years, Hindu, cultivation, residing at

    Madhavaram Village & Post, Thavanampalle

    Mandal, Chittoor District.
    … Complainant

    1. The ICICI Lombard General Insurance

    Company Limited, rep., by its Authorized

    Signatory, office situated at Authorized

    Signatory, Regd., office situated at

    ICICI Bank Towers, Bandra Kuria Complex

    Mumbai – 400051.


    2. The ICICI Lombard General Insurance Company

    Limited, rep., by its Authorized Signatory, Regd.,

    Office situated at ICICI Bank Towers,

    Bandra Kuria Complex, Mumbai – 400 051.


    3. The ICICI Lombard General Insurance Company

    Limited, rep., by its Authorized signatory,

    Branch office situated at Gandhi Road, Chittoor


    (Amended as per orders in I.A.No.118/08 dt.05.11.2008)


    4. Aragonda Apollo Medical & Education Research

    Foundation, Aragonda, Thavanampalle Mandal,

    Chittoor District.

    … Opposite Parties.

    ORDER

    This is a complaint filed by the complainant U/Sec. 12 of C.P.Act for recovery an amount of Rs. 15,000/- towards medical expenses under medical bills under Insurance Policy together with interest at 12% p.a. and compensation of Rs. 50,000/-.

    The complainant submits that in the year 2008 he obtained Insurance policy under “Kutumba Arogya Yojana” scheme and the opposite parties issued policy in favour of the complainant/ policy holder. The complainant is at liberty to take treatment in any one of the Hospitals mentioned in the Book let supplied by the opposite parties. The 1st opposite party is having branch office at Chittoor. In the month of March-06, the complainant took treatment at C.M.C Hospital, Vellore for the injuries sustained by him in his left hand and spent Rs. 30,000/-. As per the terms of the policy the policy holder is entitled to receive a sum of Rs. 15,000/- towards medical expenses. The opposite parties have not choosen to send the amount of Rs. 15,000/- to the complainant towards medical expenses. Though the complainant approached the opposite parties at Chittoor on many occasions and requested them to clear the medical bills. Due to the acts of the opposite parties the complainant suffered both mentally and physically. He gave legal notice dt. 26.11.2007 to the opposite parties calling them to clear the amounts towards medical bills and pay compensation of Rs. 50,000/- towards mental agony. Inspite of notice the opposite parties have not settled the medical expenses due under the Insurance policy. Hence the complaint is filed for recovery of medical expenses of Rs. 15,000/- as per the terms and conditions of the Insurance policy together with interest at 12% p.a and the complaint may be allowed.

    The 1st opposite party filed Written Version denying the allegations in the complaint. He has not stated any specific case except denying the allegations of the complaint. This opposite party submits that the allegation that the complainant obtained a policy under Kutumba Arogya Yojana scheme and the opposite parties have allotted UNIO, ICICI Insurance Policy valid from 15.12.2005 to 14.12.2006 that the policy holder is at liberty to take treatment in any one of the hospitals mentioned in a book No.1 supplied by the opposite parties in the name of members guide and book on indicative list of network hospitals in south are all not true and correct.

    The allegation that the complainant took treatment in C.M.C Hospital, Vellore for injuries sustained by him in his left hand that the policy holder is entitled to receive a sum of Rs. 15,000/- towards medical expenses by producing complaint has not sent all the original bills relating to the treatment taken by the complainant by way of Registered Post with Acknowledgment Due on 05.10.2006, which was received by the opposite parties are all not true and correct. This opposite party is added only after filing the complaint and the question of sending the original bills by Registered Post with Acknowledgment Due to this opposite party does not arise.

    This opposite party stated that the complainant issued notice to the ICICI Lombard Insurance health plan limited, Hyderabad and filed the present complaint as against the said company only and subsequently complainant added this respondent/ company as parties by way of amendment and in view of the same the question of deficiency of service on the part of the opposite parties does not arise and the complainant is not entitled for the relief as prayed for in the present complaint. The complaint may be dismissed.

    The opposite parties 2 & 3 are remained exparte.

    The 4th opposite party filed Written Version alleging that the complainant obtained Insurance policy of Kutumba Arogya Yojana scheme and the opposite party No.1 issued the policy Union I.C.I.C.I, which is valid from 15.12.2005 to 14.12.2006 and the complainant as policy holder is at liberty to take treatment in any one of the hospitals mentioned in the member guide book issued to him. This opposite party is not aware of the treatment taken by the complainant in C.M.C Hospital, Vellore. The 1st opposite party sent a cheque bearing 88007 dt. 26.10.2006 with a covering letter dt. 26.10.2006 to this opposite party. As the complainant has not taken treatment at Aragonda Apollo Hospital, the cheque was returned to the 1st opposite party on 06.11.2006. This opposite party is unnecessary party and there is no deficiency in service on the part of it. Hence the complaint may be dismissed.
    The Points for consideration are :

    1) Whether the opposite parties refused to pay the medical expenses of Rs. 15,000/- under Kutumba Arogya Yojana scheme Insurance policy? If so, whether there is any deficiency of service on their part ?

    2) Whether the complainant is entitled to recover the medical expenses Rs. 15,000/- together with interest at 12% p.a ?

    3) Whether the complainant is entitled to claim compensation of Rs. 50,000/- towards deficiency in service? And

    4) To what relief?

    The complainant filed Chief Affidavit of PW-1 and Ex.A1 to A7. The opposite parties filed Chief Affidavit of RW-1 & RW-2 and Ex.B1 to B8.

    The complainant and Opposite parties 1 & 4 are filed their Written Arguments.

    Point Nos. 1 to 3:-

    The counsel for the complainant contends that the complainant in the year 2005 obtained a policy under “Kutumba Arogya Yojana” scheme valid for the period from 15.12.2005 to 14.12.2006. As per the policy, the policy holder is at liberty to take treatment in any one of the hospitals mentioned in the booklet namely “Members Guide Book”. The complainant had taken treatment in C.M.C. Hospital, Vellore for the injury sustained by him to his left hand from 29.03.2006 to 05.04.2006 as inpatient and later as outpatient for a period of 25 days and spent Rs.30,000/-. The policy holder as per the terms of the policy is entitled to receive a sum of Rs.15,000/- towards medical expenses. Therefore on 05.10.2006, the complainant has sent all the original bills relating to his treatment to the opposite parties and the same were received by the opposite parties. But the opposite parties have not settled the medical expenses.

    The counsel for 1st opposite party argued that the complainant has issued notice to the ICICI Lambard Insurance Health Plan Limited, Hyderabad and filed the present complaint against the said company only and subsequently the complainant added the 1st opposite party by way of amendment. Before filing the complaint, the complainant never made any oral demand or issued legal notice to this opposite party. Therefore the question of deficiency in service on the part of opposite parties does not arise and the complainant is not entitled to any relief.

    Now the point for consideration is

    Whether there is deficiency in service on the part of 1st opposite

    party?


    Ex.B2 is the “GROUP HEALTH (FLOATER) INSURANCE POLICY” of

    ICICI Lambard General Insurance Company and same is mentioned in preamble of the policy, and the policy was signed by the authorized signatory of Group Health Insurance Policy for and on behalf of the ICICI Lambard General Insurance Limited at Mumbai. The name of the insured is 4th opposite party i.e. Aragonda Apollo Medical and Education Research Foundation. The 4th opposite party contended in its written version that the complainant has obtained a policy under “Kutumba Arogya Yojana” scheme and the opposite party No.1 issued policy. Ex.A1 is the Cashless Health Card of Kutumba Arogya Yojana issued in the name of complainant by ICICI Lambard Health Insurance, Family Health Plan Limited.


    It is evident from Ex.B2 that ICICI Lambord Health Insurance is floated by 1st opposite party, ICICI General Insurance Company Limited and opposite party No.4 is the insured and it is also evident from Ex.A1 that the complainant is beneficiary under the scheme and Family Health Plan Limited is branch of ICICI Lambord Health Insurance. Ex.A2 is the Member Guide Book issued by Family Health Plan Limited showing the Network Hospitals in which the policy holders can take treatment.

    Pw.1 in his Affidavit stated that he has sent Medical Bills relating to his treatment at C.M.C. Hospital, Vellore to the opposite parties on 05.10.2006 and the same was received by the opposite parties but in spite of repeated approaches to the opposite party No.3, the opposite parties have not settled the claim. On 26.11.2007, the complainant issued legal notice under Ex.A5 calling upon the opposite parties to settle the medical bills and for payment of compensation of Rs.50,000/- and the opposite parties sent reply letter dated 07.12.2007 i.e. Ex.A6 stating that they have settled the amount for Rs.15,000/- and they sent D.D.No.88007 dated 26.10.2006 in favour of the opposite party No.4 as the Group Policy is taken by opposite party No.4.


    The counsel for 4th opposite party contends that as the complainant had not undergone treatment at Aragonda Apollo Hospitals, the cheque of the complainant along with other cheques were returned to opposite party No.1 with covering letter dated 06.11.2006 under Ex.B6, but the complainant contended that though he issued remainder on 20.11.2007 under Ex.A7 stating that he had not received any cheque for Rs.15,000/-, the opposite party No.1 has not taken any step to send the cheque to the complainant or to the C.M.C. Hospital, Vellore where the complainant has taken treatment.

    The 1st opposite party in his Additional written arguments filed on 15.05.2009 has submitted in para 3 that the complainant made correspondence only with ICICI Family Health Plan Limited and not with 1st opposite party but admitted that claim of the complainant was settled by 1st opposite party for an amount of Rs.15,000/- and cheque was sent to the 4th opposite party for Rs.15,000/-. The 1st opposite party admitted its liability. Now the 1st opposite party cannot absolve its liability under the pretext that the complainant made correspondence with Family Health Plan Limited under Ex.A2 the Kutumba Arogya Yojana Card, the Family Health Plan Limited is shown as its identified branch.

    Though the complainant has taken treatment in hospital specified by the insurer and the Medical bills submitted in the year 2006, the matter was not settled till date. Under Ex.B6 opposite party No.4 returned the cheque to opposite party No.1 stating that the complainant was not treated in Aragonda Apollo Hospital and the cheque may be sent to the hospital where to complainant was treated. The said fact was not disputed. The opposite party No.1 ought to have redirected the said cheque to the CMC Hospital, Vellore where the complainant took treatment or to the complainant, failure to do so amounts deficiency in service on the part of opposite party No.1.


    Further Ex.A6 Reply Letter dated 07.12.2007 sent by Family Health Plan Limited to the complainant shows that the opposite parties received the claim form along with documents settled the claim for an amount of Rs.15,000/- and sent a cheque for the said amount to the 4th opposite party. When 4th opposite party returned the said cheque to the 1st opposite party, the 1st opposite party retained the cheque with it without taking any further action. Therefore the complainant is entitled to Rs.15,000/- towards Medical Bills with interest.

    Further the 1st opposite party filed additional written arguments on 03.06.2009 stating that the complaint is barred by limitation against the 1st opposite party, and argued that the complainant took treatment at C.M.C. Hospital, Vellore in the month of March, 2006 and the petition for impleadment of opposite parties allowed on 05.11.2008 i.e. beyond 2 years. As per the material till receipt of Reply notice dt.07.12.2007 i.e. Ex.A6 sent by 1st opposite party, the complainant has no knowledge of sending the cheque to the 4th opposite party. More over, in this case, the claim of the complainant is settled and it is not the case of the repudiation and the claim is retained by 1st opposite party without taking any further action (namely) sending it to the complainant. Therefore there is no question of limitation. However the complaint is filed on 20.02.2008 i.e. after receipt of the reply notice Ex.A6 dt.07.12.2007. The 1st opposite party was added on 19.09.2008. The limitation starts only after receipt of the notice Ex.A6 i.e. from 07.12.2007. Therefore the complaint is within the limitation against 1st opposite party.


    The complainant claimed a sum of Rs.50,000/- towards mental agony. Though the complainant submitted his claim on 05.10.2007 till this date the opposite party No.1 did not send the cheque for Rs.15,000/- to the complainant. Further the opposite party unnecessarily retained the cheque with it from November, 2006 without taking any further action and raised unnecessary arguments that the opposite party No.1 is not aware of the claim and that the claim is barred by limitation. In fact the opposite party No.1 already settled the claim in October, 2006 and issued the cheque for Rs.15,000/- and send it to opposite party No.4. After the complainant filed this complaint, opposite party No.1 ought to have honestly given the cheque for Rs.15,000/- to the complainant, instead raised unnecessary defence of limitation. Therefore the opposite party No.1 without any reason prolonged the issuance of cheque to the complainant and also enquiry in this complaint and harassed the complainant. In these circumstances the complainant is entitled to claim compensation for mental agony and this Forum granted Rs.5,000/-

    Point No.4 :-

    In the result the complaint is allowed in part directing the 1st opposite party to reimburse the medical bills and pay Rs.15,000/- (Rupees fifteen thousand only) to the complainant with interest at 12% P.A. from the date of legal notice dated 26.11.2007 till the date of realization and pay Rs.5,000/- (Rupees five thousand only) towards compensation and Rs.1,500/- (Rupees one thousand five hundred only) towards cost of the complaint within 6 weeks.
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