ICICI Lombord

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  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Ashok Kumar s/o Sh. Sat Pal Sole Proprietor M/s Sat Pal & Sons, Street no.3, Opposite Metro Tyres, Overlock Road,Narankari Satsang Road, Ludhiana.



    …..Complainant.

    Versus



    1- ICICI Lombard General Insurance Company Ltd., having its registered office at ICICI Bank, Bandra Kurla Complex, Mumbai-400051, through its Chairman/managing director.

    2- M/s Instant Credit, Franchise of ICICI Bank Ltd., SCO-7, Ist Floor, Feroze Gandhi Market, Ludhiana, through its branch head.

    …..Opposite parties.







    O R D E R









    1- Complainant is owner of Ford Fiesta car bearing no.PB-10BS-5370. His case is that opposite party no.2 M/s Instant Credit, a franchisee of ICICI Lombard Gen. Ins. Co. opposite party no.1, approached him for getting his vehicle insured. Opposite party no.1 also assured the complainant to get vehicle insured from them, being one of the best insurance companies of the world. Consequently, got his vehicle insured by paying premium under cover note bearing no.PE4160051 dated 15.2.2007. The policy was valid upto 14.2.2008. On 15.5.2007, front windshield glass of the car of the complainant, was damaged. Hence, car was sent for repairs to M/s A.B. Motors, authorized dealer of the car.


    Particulars of the insurance were provided to M/s A.B. Motors, saying that the car being fully assured, so amount of the bill be recovered from the insurance company i.e. opposite party no.1. On 22.5.2007, received a call from M/s A.B. Motors, to pay bill of Rs.9500/- on account of repair charges. He required them to recover the same from opposite party no.1, but was forced to foot the bill, on the ground that no insurance existed with opposite party no.1, qua his vehicle. Was shocked to receive such intimation and immediately, contacted opposite party no.2, but they failed to give any satisfactory reply. Complainant was forced to pay Rs.9,420/- from his own pocket, despite the fact that he had insured his car with opposite party no.1, by paying premium of Rs.19,110/- and thereafter, cover note was issued.


    Then approached both opposite parties many times, to settle his claim and was forced to obtain fresh insurance coverage of the car from Oriental Insurance Company. Served legal notice dated 30.5.2007 on opposite party, who failed to settle the claim and same according to the complainant, amounts to deficiency of service on part of opposite parties. He in this complaint u/s 12 of the Consumer Protection Act, 1986, sought compensation of Rs.1 lac and amount of Rs.19,110/- paid to Oriental Insurance Company, for taking insurance of the vehicle.

    2- Opposite party no.1-ICICI Lombard General Insurance Company Ltd. in their reply, pleaded that claim of the complainant was repudiated as no claim, vide letter dated 23.5.2007. Because cheque deposited by the complainant as premium for obtaining insurance, got bounced. So, policy was cancelled from inception, as cheque no.137836 for Rs.1473/- towards insurance premium, was returned unpaid by the bankers of the complainant. Qua it, complainant was duly informed including cancellation of the policy, vide letter dated 10.3.2007.


    Clearly conveyed after cancellation of the policy from inception that company would not be liable for any risk, so complaint is not maintainable. Further averred that on receipt of the claim lodged by the complainant, it was entertained and Sh. Arpan Gupta, surveyor and loss assessor was engaged to assess the loss. The surveyor vide his report dated 20.5.2007, assessed loss of Rs.6408/- only. The claim has rightly been repudiated due to cancellation of the policy, on account of non-receipt of the premium. They claimed there is no deficiency in service and complaint is liable to be dismissed.

    3- Opposite party no.2 in its separate reply, claimed that complaint against them has been unnecessarily filed. They have no relation with the complainant, nor entered into any deal with him. They never approached complainant, for purchase of insurance policy of his car. Such allegations are false and fabricated. All allegations of the complainant have been controverted and denied.

    4- To prove their respective versions, parties adduced evidence by way of affidavits and documents. We have heard ld. counsel for the parties and minutely scanned the entire material placed on the file.

    5- Undoubtedly, the complainant is owner of Ford Fiesta car bearing no.PB-10BS-5370. He got his car insured from opposite party no.1, vide cover note no.PE4160051 dated 15.2.2007, covering risk period upto 14.2.2008. Ex.C1 is copy of the cover note so supplied by opposite party no.1 to the complainant. Vide this cover note, a sum of Rs.21,178- is mentioned having been received as premium from the complainant. But defence of opposite party no.1 is that insurance premium amount of Rs.1473/- paid by the complainant by way of cheque no.137836 in their favour, got bounced. Consequently, they vide letter dated 10.3.2007, cancelled the insurance policy from the date of its inception and notified the complainant accordingly.

    6- Ex.R3 is xerox copy of that cheque bearing no.137836 dated 14.2.2007 for Rs.1473/-, drawn on in favour of opposite party no.1. This cheque was issued by partners of Instant Credit, opposite party no.2, in favour of ICICI Lombard General Insurance Co. Ltd., opposite party no.1. It is this cheque of insurance premium which according to opposite party no.1, got bounced. Opposite party no.1 have placed sufficient material, to prove bouncing of the cheque on account of insufficient funds. This is apparent from endorsement Ex.R4 dated 27.2.2007 of ICICI Bank, dishonouring the cheque in question, due to insufficient funds. Regarding it, ICICI Bank had issued certificate Ex.R5 dated 11.6.2008 to opposite party no.1.

    7- In these circumstances, it is apparent that insurance premium of Rs.21,178/-, as mentioned in the cover note Ex.C1 qua vehicle of the complainant, was received directly by opposite party no.1 from the complainant. They acknowledged receipt of the same in cover note Ex.C1. Rest of the amount of insurance premium, amounting to Rs.1473/- by way of a cheque, was paid to opposite party no.1 by opposite party no.2. But that cheque was dishonoured on account of insufficient funds in the account of opposite party no.2.


    Notwithstanding denial by opposite party no.2, having no link with the complainant, or that never prompted him to get insurance of his car from opposite party no.1, through their intervention, it is consequently established that there was some arrangement between the complainant and opposite party no.2. Opposite party no.2 as a result, issued cheque qua insurance of the vehicle of the complainant, in favour of opposite party no.1, which got bounced. Therefore, in the light of said documentary proof, we have to ignore affidavit Ex.RW2/B of Sh. Rajiv Mittal, partner of opposite party no.2 that complaint against them, is not maintainable and have been unnecessarily dragged into litigation.

    8- On bouncing of cheque of Rs.1473/- bearing no.137836, opposite party no.1 vide letter Ex.R1 dated 10th March, 2007, communicated to the complainant that his policy cover note issued qua his vehicle, has been cancelled from inception and they are no longer at risk from that date. This letter Ex.R1 under certificate of posting Ex.R2, was sent to the complainant. This letter Ex.R1 and postal certificate Ex.R2 of opposite party, addressed to the complainant, again authenticates assertion of opposite party no.1 that cheque no.137836 was received as insurance premium of the vehicle. Subsequently, vide letter Ex.R8 dated 23rd May, 2007, opposite party no.1 conveyed to the complainant that his policy was cancelled, due to bouncing of premium cheque.

    9- Complainant to reflect that amount of premium paid by him to opposite party through cheque, was cleared from his account, has placed reliance on Ex.C4 his statement of account with State Bank of India, Gill Road, Ludhiana. There is entry dated 28.2.2007 of clearing of cheque worth Rs.19,383/- and debiting the same amount from his credit.

    10- While car of the complainant was damaged, he lodged claim with the opposite party, which as stated earlier, stood repudiated vide letter Ex.R1 dated 10th March, 2007. Thereupon, complainant issued registered legal notice Ex.C5 dated 30.5.2007 to both opposite parties, but without any effect, despite its receipt by both opposite parties.

    11- After receipt of the claim form Ex.R12, opposite party had engaged Sh. Arpan Gupta, as surveyor, who vide his report Ex.R6, assessed damage of Rs.6408/- to the vehicle of the complainant. It is settled preposition of law that u/s 64-VB of Insurance Act, 1938, insurer is exonerated from any risk in respect of insurance business on which unless and until premium payable is received by him or guaranteed to be paid by any other person.


    Where insurance premium cheque is dishonoured, policy stands cancelled and insurance company not liable, for any damage to the insured vehicle. On dishonouring of cheque, insurance company is entitled to cancel the policy. Reliance placed on the Dedappa & Ors. Vs Branch Manager, National Insurance Co. Ltd. 2008(1)RCR(Civil)-402 (SC); National Insurance Company Limited Vs Seema Malhotra & Ors. AIR 2001 Supreme Court-1197(SC); M/s Vijay Kumar Krishan Gopal Bankers and Commission Agents of Kurukshetra Vs United India Insurance Co. Ltd. & Ors. 1995(2)CLT-504(NC) and Divisional Manager, Oriental Ins. Co. Ltd. Vs Sanjay Kumar Panigrahi IV(2004)CPJ-29(NC).

    12- So, it is apparent that on account of dishonouring of premium cheque, insurance company under the law, would be legitimate to cancel the policy. Such was done by opposite party no.1. Hence, no fault with their action can be found.

    13- However, part of premium of Rs.1473/- on behalf of complainant, was paid by opposite party no.2 to opposite party no.1, by way of cheque. It was on account of dishonouring of that cheque that policy in entirety was cancelled by opposite party no.1. Resultantly, opposite party no.2 whose services were availed by the complainant and had undertaken to pay part of the insurance premium, defaulted and did not ensure encashment of the premium cheque from their account, by insurance company opposite party no.1. It was due to such act and conduct of opposite party that insurance policy of the complainant, was cancelled by opposite party no.1. Therefore, opposite party no.2 certainly would be guilty of negligence of not rendering proper services to its own consumer. Therefore, complaint against opposite party no.2 alone, deserves to be allowed.

    14- Complainant is proved to have spent subsequently again a sum of Rs.19110/- for obtaining insurance of his vehicle from Oriental Insurance Company Limited, vide cover note Ex.C12, valid from 23.5.2007 to 22.5.2008. Had premium cheque of Rs.1473/- paid by opposite party no.2, on behalf of complainant to opposite party no.1, not bounced, complainant would not have been forced or compelled to for second insurance of his vehicle from Oriental Insurance Company Limited. Hence, amount of Rs.19110/- is liable to be born by opposite party no.2 and paid to the complainant. In addition, they would also be liable to pay damage of the vehicle Rs.6408/-, assessed by the assessed. Therefore, entitlement of the complainant comes to Rs.25,518/-(19110+6408).

    15- Hence, we allow this complaint against opposite party no.2 only, directing them to pay Rs.25,518/- to the complainant, within 45 days of receipt of copy of order. We pass no order as to compensation, but order opposite party to pay litigation costs of Rs.2000/- to the complainant. Copy of order be provided to the parties free of charge. File be completed and consigned to record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    M/s Sadana Hotels Pvt. Ltd. 15, Feroze Gandhi Market, Ludhiana through its Managing Director Sh. Sahtokh Singh.

    (Complainant)

    Vs.



    1. ICICI Lombard Motor Insurance Co. (also known as ICICI Lombard General Insurance) Mall Road, Ludhiana through its Manager.



    2. ICICI Lombard Insurance Co. Zenith House, Keshavrao Khade Marg, Mahaluxmi, Mumbai 400 034 through its Director/Chairman/Managing Director.



    3. ICICI Lombard Motor Insurance Co. S.C.O. 24-25, 1st Floor, 8-C, Chandigarh.



    4. Radiant Toyota, Chadha Super Cars Pvt. Ltd. G.T. Road, Jugiana, Ludhiana.



    5. ICICI Lombard General Insurance Co. Ltd. Regd. office ICICI Bank Towers, Bandra-Kurla Complex, Mumbai 400 051 through its Managing Director.

    (Opposite parties)







    O R D E R



    1. Complainant company through its Managing Director has filed this complaint under section 12 of the Consumer Protection Act, 1986, for direction to OP-Insurance Company to pay Rs.23,279/- and change chassis and engine number /block number of the Innova Car bearing registration number PB-10BS-879 and pay compensation of Rs.4,50,000/-on account of damages suffered by the complainant company.

    2. Case spelled is that Complainant Company is the owner of Innova Car bearing registration no. PB-10 BS 7879, which they got insured vide policy no. 3001/50973867/00/000 with the OP-Insurance Company. The car was stolen from Feroze Gandhi Market, Ludhiana, qua which FIR no.95 dated 20.4.2007 was lodged in P.S. Division No.5, Ludhiana. Theft was intimated to opposite party no.1 vide letter dated 24.4.2007. Subsequently, stolen vehicle was recovered by the police, regarding which due intimation was given to the OP Insurance Company. Police got the vehicle examined from Radiant Toyota Chadha Super Cars Pvt. Ltd. Ludhiana, who after examining reported that chassis number of the car has been tampered and particular portion of the chassis containing number has been replaced with other chassis. Similarly, engine number of the car did not match with the original engine punched number.


    Key plastic portion of the vehicle was cut and joint with adhesive for the purpose of immobilizer computer chip and Vin plate punch also did not match with the original fitment provided by the manufacturer of the car. Qua it, intimation was given to the OP-Insurance Company and on their instructions, the vehicle was entrusted to Radiant Toyota Chadha Super Cars Pvt. Ltd. Ludhiana for repairs on 5.9.2007. Radiant Toyota Chadha Super Cars Pvt. Ltd. Ludhiana after inspection prepared estimate of expenses qua damage/lost parts by assessing the same to Rs.3,31,580/-. Copy of the estimate was sent to the surveyor Mr. Rishi Bhasin of the opposite party.


    On asking of surveyor, repair estimate were again prepared by Radiant Toyota Chadha Super Cars Pvt. Ltd. Ludhiana and copy given to OP-Insurance Company. Complainant claimed that due to changed chassis number and engine/block number of the car, he is unable to ply the same on the road. Hence, was forced to purchase a new Ford Fiesta car. On 24.10.2007, complainant approached surveyor Sh. Rishi Bhasin who apprised that repair charges came to Rs.51,808/- and that complainant should receive delivery from the workshop by paying Rs. 23,279/- from his pocket which would be paid to the complainant subsequently by the OP-Insurance Company.


    Hence, complainant under protest paid that amount to Radiant Toyota Chadha Super Cars Pvt. Ltd. Ludhiana to take delivery of the car. Thereafter, complainant served registered notice dated 24.10,.2007 requiring OP-Insurance Company to pay him Rs.23,279/- paid by him out of his own pocket and requested them to get the engine number and chassis number of the vehicle changed or corrected but they postponed the matter. Such act on the part of the OP-Insurance Company is claimed amounting to unfair trade practice and deficiency in service. Resultantly, this complaint.

    3. OP-Insurance Company contested the complaint by controverting the allegations of the complainant. However, they admitted getting his car insured from them, reporting loss, its recovery and lodging the claim. On lodging of the claim, same was entertained, processed and Mr. R.P. Bhasin was engaged surveyor and loss assessor.


    On receipt of report of the surveyor, claim under insurance policy was settled and a sum of Rs. 25,767/- assessed by the surveyor vide his report dated 7.11.2007 was paid to opposite party no.4- Radiant Toyota Chadha Super Cars Pvt. Ltd. Ludhiana directly. The loss was assessed in terms of loss estimate submitted by the complainant after deductions as per terms and conditions of the policy. Such deductions were on account of depreciation, salvage value and excess value. Therefore, the complainant is not entitled for Rs. 23,279/-. It is denied that surveyor Sh. R.P. Bhasin ever assured complainant to take delivery of the vehicle and balance amount of Rs.23,279/-would be subsequently paid by the Insurance Company to him.


    Such allegations are claimed to be false. Averred that this Fora has no jurisdiction to try the complaint, which is not maintainable. They denied other allegations of the complainant that the chassis number and engine number of the vehicle were also tampered. No such report qua tampering was made by M/s Chadha Super Cars Pvt. Ltd. Complainant is not entitled for any relief, nor he suffered any damage on their account. Neither there is any deficiency in service on their part and the insurance company never indulged in unfair trade practice.

    4. OP No.4-Radiant Toyota, Chadha Super Cars Pvt. Ltd. vide separate reply claimed that there is no deficiency claimed against them, so, the complaint is not maintainable and the complainant is also not a consumer. They have denied rest all the allegations of the complainant and prayed for dismissal of the complaint.

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

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

    7. This claim of the complainant required to be splited into two parts. First claim of the complainant is that he is entitled for payment of Rs.23,279/-, the amount spent from own pocket to get the delivery of the vehicle from M/s Chadha Super Cars Pvt. Ltd., after its repair. The second controversy is entitlement of the complainant for compensation of Rs.4,50,000/- and passing direction to the opposite party to change chassis number and engine number of the complainant.

    8. Aforesaid points have arisen after hearing the parties. During arguments, it was not disputed or denied by the OP-Insurance Company that the insured vehicle of the complainant was reported to be stolen and thereafter its recovery. Resultantly, qua these admitted and undisputed aspects, we shall not burden the record by referring evidence pertaining to these points.

    9. The first point of recovering Rs. 23,279/- has appeared as Sh. R.P. Bhasin surveyor and investigator vide report Ex.R.1 dated 7.11.2007 has assessed total damage to the vehicle to the tune of Rs.25,762.02p. As insurance policy of the car obtained by the complainant was cashless, so, that amount of Rs. 25,762.02p was directly paid by the OP-Insurance Company to OP No.4 -Radiant Toyota Chadha Super Cars Pvt. Ltd. This amount was assessed after applying depreciation, salvage value, excess clause of the insurance policy Ex. R.8 and insurance certificate Ex.R.7. In support of the report Ex.R.1, affidavit RW2/A of its author Sh. R.P. Bhasin Surveyor & Loss Assessor stand relied.


    However, we can not believe in absence of cogent evidence, allegations of the complainant sworn through affidavit Ex.CW1/A that Sh. R.P. Bhasin had required the complainant to take delivery of the vehicle by paying Rs.23,279/- from his own pocket and that this amount subsequently would be paid to him by the Insurance Company. Neither there is any communication to such effect on the record. Also Sh. R.P. Bhasin & Company Surveyor and Loss Assessor of the Insurance Company could not have given such assurance being not authorised to do so.

    10. Complainant has based the claim because a sum of Rs. 51,808/- in all was spent upon repair of the vehicle as per invoice Ex.C12 of Radiant Toyota Chadha Super Cars Pvt. Ltd. It is mentioned in the invoice that Rs.23,279/- was received on 24.10.2007. It is this amount, which complainant paid from his pocket. The insurance Company is liable to pay the amount as per terms and conditions of the policy. Policy provides for reducing depreciation value, salvage value and having excess clause. Therefore, the Insurance Company was not bound to pay the entire amount reflected in invoice Ex.C.12. Therefore, in such scenario, we feel that claim of the complainant for refund of Rs. 23,279/- from OP-Insurance Company is not maintainable or sustainable.

    11. For coming to such conclusion, we are fortified from decision of the Karnatka State Consumer Disputes Redressal Commission, Banglore, in ca se reported as IV (2006) CPJ 30, titled as Jyothi Agencies Vs. New India Assurance Company Limited. In that case, deductions were made by the Insurance Company as per policy clause and the amount was received without protest. Same was held not amounting to deficiency in service. Similar is situation in this case.

    12. It is also settled that surveyor report being an important document can not be brushed aside in absence of specific reasons. Reliance placed on case Bhim Singh Vs. national Insurance Company Limited & Anr.reported in 1 (2009) CPJ 106 (Union Territory Consumer Disputes Redressal Commission, Chandigarh; Prem Chand Sadana Vs. New India Assurance Co. Ltd. 1 (2009) CPJ 229(Uttrakhand State Consumer Disputes Redressal Commission, Dehradun; National Insurance Coimpany Limited & Anr. Vs. Rajesh Kumar 1 (2009) CPJ 292 (Jharkhand State Consumer Disputes Redressal Commission, Ranchi and Netrananda Behera Vs. New India Assurance Co. Ltd. & Anr. 1 (2006) CPJ 416 (Orissa State Consumer Disputes Redressal Commission, Cuttak)

    13. It is a settled law that report of the surveyor is an important document which can not be brushed aside without specific reason. In the instant case, no reasons have forth come from the complainant empowering us, to ignore report of the surveyor.

    14. Therefore, complainant would not be entitled for any refund of the amount.

    15. Now coming to 2nd point of compensation and directing opposite party to change, changed chassis and engine number of the vehicle. Our discussion on point no.1 clearly spells that there is no deficiency in service on the part of OP-Insurance Company, nor they resorted to unfair trade practice. The position being so, would not entitle the complainant for any compensation as claimed.

    16. As far as any direction to get engine and chassis number changed of the car is concerned, there is no proof that same has been got done by the complainant. Though he placed on record assessment of report Ex.C8 obtained from Radiant Toyota Chadha Super Cars Pvt. Ltd. who assessed cost of such change to the tune of Rs. 3,31,580/-. But there is no proof that complainant got changed chassis and engine number and spent any amount. If he do so then may lodge this claim with the Insurance Company who shall then settle it in conformity with the insurance policy.

    17. In view of the aforesaid discussions, we partly allow the complaint requiring OP-Insurance Company that in case complainant gets engine and chassis number of the vehicle changed as per assessment Ex.C.8 and lodges claim, they may settle the same in conformity under the Insurance policy of the vehicle. No other relief is granted. In these circumstances, we leave the parties to bear their own costs. Copy of the order be supplied to the parties free of costs. File be completed and consigned to record.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Pandrangi Linga Rao,

    S/o. Panaiah,

    R/o. Jonnalagadda Village and Post,

    Guntur District.



    C/o. N.Uma Maheswara Rao, Advocate,

    Ankammanagar, Guntur. … Complainant

    AND



    1. ICICI Lambard General Insurance Ltd.,

    Rep. by its Attorney,

    Registered office at ICICI Bank Towers,

    Bandra, Kurla Complex,

    Mumbai – 400 034.

    2. M/s. ICICI Lambard General Insurance Ltd.,

    Rep. by its Branch Manager,

    Branch office at Usman Plaza,

    6-3-352/1, 2nd and 3rd floors,

    Road No.1, Banjara Hills, Hyderabad.

    3. M/s. ICICI Lambard General Insurance,

    6/1, Arundelpet, Guntur. …. Opposite parties







    O R D E R



    This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant praying to direct the opposite parties to pay compensation of Rs.63,000/- as per the claim application and for costs.

    The averments of the complaint in brief are as follows:

    The complainant purchased TVS XL Super HD from M/s. Pioneer Automotives, Besides Congress Office, GT Road, Guntur under invoice No.5500, dt.09-03-06, which is financed by Kusuma Sankar Finance Corporation, Guntur and the said vehicle was insured with 3rd opposite party being a representative of opposite parties 1 and 2 at Guntur under policy No.3005/1663782/00/0000, dt.09-03-06 and it is valid upto March, 2007.

    The said vehicle was stolen on 10-09-06 and the complainant gave police complaint on 10-09-06 which was registered as crime No.578/06 under section 379 of IPC, the complainant also gave written representation to the RTA, Guntur on 21-09-06 about the theft of vehicle. The complainant informed the same to the opposite parties. Thereupon, the 1st opposite party obtained indemnity cum declaration undertaking on 05-12-06 from the complainant. Subsequently, the complainant used to attend 3rd opposite party for payment of insurance amount. But the 3rd opposite party did not choose to pay the cost of vehicle i.e., Rs.22,500/-. Thereupon the complainant gave representation to the opposite parties, but the opposite parties refused to pay the insured amount i.e., cost of the vehicle in the event of theft of vehicle. Due to nonpayment of vehicle cost, the complainant has to travel by other modes, due to which the complainant sustained huge loss. Hence, this complaint.

    The complainant claimed an amount of Rs.22,500/- for the loss of vehicle, Rs.12,000/- for loss of money by traveling in other modes, Rs.10,000/- for mental agony, Rs.500/- for postal and other expenses, Rs.3000/- for legal expenses, Rs.15,000/- for compensation. In all the complainant claimed an amount of Rs.63,000/-.

    The opposite parties 1 to 3 have filed their version denying the allegations made in the complaint.

    The brief facts of version of OPs 1 to 3 are as follows:

    The TVS XL Super vehicle bearing registration No.AP 7AJ 1285 was insured with this opposite party under two wheeler’s package policy vide policy No.3005/1665182/00/000 and the policy commences from 09-03-06 to 08-03-07.

    In the complaint filed by the complainant, there is no date of theft and time mentioned and the complaint is filed to claim the loss under various heads as if the complainant incurred loss claiming Rs.63,000/- and due to his negligence. The complaint is vague and this opposite party is not liable to pay compensation. The complainant stated in the complaint that the vehicle was stolen on 10-09-06 and gave police report on 10-09-06, but actually theft occurred on 06-08-06 at about 6.45 am in front of P.Prasad’s house at Chandramouli Nager, 3rd line, Guntur and the same was given by the complainant in writing to the opposite party. But the version of complainant is different as if the vehicle was stolen on 10-09-06. So this attitude of the complainant shows that in order to gain wrongful advantage from the opposite party this complaint is filed.

    The complainant is using the vehicle for transportation of goods which is not covered under the policy. The complainant violated the terms and conditions of the policy. There is delay of 34 days in giving FIR to the police and also till today no final report was filed by the police and the complainant using the vehicle for carrying milk i.e., transportation of goods, which is not covered in the policy and also left the vehicle on the road without locking and on this ground the claim was repudiated and the same was intimated to the complainant. The complainant without approaching the arbitrator filed this complaint before this Forum. Hence, the complaint is liable to be dismissed.

    The complainant and opposite parties have filed their respective affidavits in support of their contentions reiterating the facts.

    On behalf of complainant Ex.A1 to A7 are marked. Ex.A1 is the invoice under which the complainant purchased the vehicle. Ex.A2 is the two wheeler package policy. Ex.A3 is the FIR under section 379 IPC registered for the loss of vehicle of complainant. Ex.A4 is the referred notice of Pattabipuram Police. Ex.A5 is the letter by complainant to RTA, Guntur. Ex.A6 is the certificate of registration regarding the lost vehicle. Ex.A7 is the indemnity cum declaration undertaking given by the complainant.

    Now the points for consideration are that

    1. Whether there is any deficiency of service on the part of opposite parties?
    2. To what relief the complainant is entitled?

    POINT No.1

    It is the case of the complainant that he purchased two wheeler under Ex.A1 and insured the same under Ex.A2 and he lost the same on 10-09-06 and intimated the fact of loss of vehicle to the opposite parties and claimed insurance amount and that the opposite parties repudiated the claim on the ground that the vehicle was used for transportation of milk by the complainant and also on the ground that the complainant left the vehicle on the road without locking the same.

    The case of the opposite parties is also that the complainant used the vehicle for transportation of milk and the complainant left the vehicle on the road without locking the same.

    The complainant herein is the milk vendor. He used to sell milk by carrying it on his two wheeler from door to door for his livelihood. Therefore, it cannot be said that the vehicle is used for transportation. In case of theft of a vehicle the breach of condition is not germane. It is a well settled that in case of theft of insured vehicle, the nature of its use is not to be looked into and the insurer cannot repudiate the insured claim on that basis (vide 2008 CTJ 680 (SC) (CP) National Insurance Company Ltd. Vs. Nitin Khandelwal).

    It is practically not possible to lock the vehicle wherever it is stopped as the complainant is a milk vendor and using it for carrying the milk and that he has to stop his vehicle from door to door. In those circumstances, it is not practically possible to lock the vehicle while moving from door to door.

    The opposite parties in their version stated that the actual theft occurred on 06-08-06 at about 6.45 am in front of Mr.P.Prasad’s house at Chandramouli Nagar, 3rd line, Guntur and the same was given by the complainant in writing. The said written statement given by the complainant is not filed by the opposite parties. As seen from Ex.A3 (FIR) the vehicle was lost on 10-09-06 at about 6,45 am at Chandramouli Nagar, Guntur. Admittedly the insurance policy is from 09-03-06 to 08-03-07. The vehicle was lost on 10-09-06. Therefore, the repudiation of the claim of insured amount by the opposite parties is not justified and unreasonable. Hence, there is deficiency of service on the part of opposite parties in not settling the claim. Accordingly, this issue is answered in favour of the complainant.







    POINT No.2

    The complainant claimed an amount of Rs.63,000/- under various heads. We feel it just and reasonable to direct opposite parties to pay the insured amount of Rs.22,500/- to the complainant together with compensation of Rs.3000/- and legal expenses of Rs.1000/-. However, we decline to award other amounts for want of material on record.

    In the result, the complaint is allowed in part in terms as indicated below:

    1. The opposite parties 1 to 3 are directed to pay an amount of Rs.22,500/- to the complainant towards claim of the insurance for the lost vehicle.

    2. The opposite parties 1 to 3 are further directed to pay an amount of Rs.3000/- towards compensation and Rs.1000/- towards cost of litigation.

    3. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which they shall carry interest @ 9% p.a. till the date of realization.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    B.S.Dayananda S/o. B.Shankaralingegowda,

    Aged about 32 years, Complainant

    Resident of Byadagere, Kadaba hobli,

    Gubbi taluk, Tumkur district






    AND



    1. The Manager,

    ICICI Lamboard General Insurance Co.,

    Sudha Commercial complex, Opposite Parties

    Opposite coffee cafe day,

    Rajajinagar entrance,

    Dr.Rajkumar Road, Bangalore-10

    2. B.O., Prajapragathi Building,

    BH Road, Tumkur



    ORDER






    2. Through this complaint, the complainant prays for an order against the Opposite Parties (hereinafter called as the OPs for short) to pay him Rs.19, 51,738/- towards loss and damages to the vehicle and for mental agony caused to him due to the deficiency of service alongwith interest at 18% per annum from the date of the complaint till realization.

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

    It is contended that, the complainant is the registered owner of the vehicle TATA SK 1613 tipper bearing Reg.No.KA-06-A-8814. He had insured the vehicle under commercial vehicle package policy No.3008/1086777/00/000 with the OP. The policy was valid from 5-4-2006 to 4-4-2007.



    4. It is further contended that, the vehicle met with an accident on 30-9-2006 at about 9.30 PM near Sampige Railway gate, Sampige Railway Station. In the accident the vehicle was damaged and report was issued by the senior inspector of motor vehicles, RTO’s office. The claim form seeking replacement of complete cabin assemble was filed before the OP. The officials of the OP have visited the spot where the vehicle was parked and after inspection submitted their report regarding the damage. He approached Bellad Engineers Pvt. Ltd. Tumkur for repair and service of the vehicle. They estimated Rs.3, 03,265/- towards replacement and service.


    The OP was though legally bound to pay costs towards the replacement of cabin assemble under the policy, its surveyor issued a letter stating that only costs towards bare cabin assemble has been allowed for replacement without settling his claim. As per Section I-1(4) of standard form for commercial vehicles package police supply alongwith the certificate of insurance, the OP is liable to pay complete costs towards replacement as the vehicle was purchased within a period not exceeding six months for which nil depreciation is to be allowed.



    5. It is further contended that, in pursuance of the letter of the surveyor, the OP did not settle the claim. As the OP did not settle the claim within a reasonable time, he got issued legal notice on 28-11-2006 through the professional couriers. The OP received the said notice but remained silent without making any settlement of the claim.



    6. It is further contended that, the complainant filed a complaint in CC.No.34/2007 before this forum and it was disposed off with a direction to him to furnish information as required by the surveyor and a further direction to the company to settle the claim within 30 days from the date of order i.e. 9-4-2007.



    7. It is further contended that, the complainant submitted the required information through registered letter dated 16-4-2007. It was duly served on the OP on 19-4-2007, but the OP has not taken any steps to settle the claim. In the meanwhile, the authorised signatory of M/s. Bellad Engineering Works issued Tax-invoice and other bills amounting to Rs.3,62,008/-. The said tax invoice and bills were sent to the surveyor of the OP through a letter dated 17-1-2008, the same was served on the surveyor T.T.Ravishankar on 21-1-2008 but the OP remained silent. It is further contended that, the complainant personally approached and enquired the OP on several occasions but the OP did not take any steps to settle the claim of the complainant.


    As such the complainant filed another complaint before this forum in CC.No.186/2007 and after service of notice from this forum, the matter was disposed in terms of the joint memo. In the joint memo it was agreed to furnish information as required by the surveyor and the company shall have to settle the claim of the complaint within 30 days from the date on which the complainant furnishes the information vide order dated 9-4-2007.



    8. It is further contended that, the OP sent a cheque dated 27-5-2008 for Rs.1,70,270/- only though the complainant paid Rs.3,62,008/- without properly considering the tax invoice and bills. It is further contended that, the OP committed deficiency of service by causing delay in making payment that too a meager amount without considering the claim.



    9. It is further contended that, due to non-settlement of claim by the OP within a reasonable time, the complainant has been put to heavy loss and damages as the complainant was liable to pay Rs.23,000/- per month towards the EMI together with interest accrued on purchase of the vehicle from ING Vysya Bank, Rs.8000/- per month towards Driver’s and cleaner’s salary; Rs.2700 towards tax, Rs.1750/- per month towards insurance premium, and parking charges of Rs.4500/- per month towards (at the rate of 150/- per day) and loss of income to the tune of Rs.20, 000/- per month. Thereby, the complainant suffered total loss of Rs.60, 000/- per month. Since he has suffered heavy loss from 30-9-2006 to 27-5-2008 (nearly 21 months) it comes to more than Rs.12, 60,000/-. It is alleged that it was due to the delay and deficiency in service committed by the OP.



    10. It is further contended that, the OP is liable to pay Rs.2,91,738/- (Rs.3,62,008/- - Rs.1,70,270) towards spare parts, labour and service charges, Rs.12, 60,000/- towards loss and damages and Rs.4, 00,000/- towards the mental agony caused to the complainant amounting to Rs.19,51,738/- together with interest at 18% from the date of the complaint till the realisation as the OP as committed deficiency in service. Hence, this complaint.



    11. Among the OPs who have been notified of the complaint, the 1st OP put in his appearance through his counsel and resisted the same. The 2nd OP has failed to appear before the forum and hence he is placed exparte.



    12. The gist of the objections is as follows:

    The 1st OP in his objections, while emphatically denying the complaint averments as false and untenable, interalia pleaded that, the address of the OP given in the cause title is wrong as it is having its office in No.89, SVR complex, II floor, Hosur Road, Bangalore. It is contended that, the estimation given by Bellad engineers Pvt. Ltd is false and exaggerated. Unless the vehicle is dismantled such estimation cannot be given/assessed by the said company. Only the surveyor/valuer has seen the vehicle and he is an independent body and not officials of the OP.



    13. It is contended that, this OP since paid Rs.1,70,270/- through cheque, has not committed any deficiency in service. There is no cause of action for this petition. This petition is not maintainable in law and also not in time. The matter has been disposed off finally on 20-9-07 and the complainant cannot maintain this petition.



    14. It is further submitted that, this OP has paid the amount entitled by the complainant and is not liable to pay any amount as claimed in the petition. This forum has no jurisdiction to entertain this petition. This OP is not liable to pay the amount of Rs.19,51,738/- claimed in the petition.



    15. It is further submitted, the complainant is non co-operative to settle the claim since the beginning. He has not submitted the claim form and not allowed the surveyors of the OPO to inspect the vehicle at the appropriate times and has not informed them well in time. This Hon’ble forum had pointed out this fact in CC.34/2007 and in CC.186/2007. The joint memo filed on 20-9-07 in CC.186/07 clearly established that as on that date, no claim form was submitted by the complainant. In fact when the surveyor inspected the vehicle in the presence of the complainant, he was not prepared to co-operate with the surveyor’s work. The complainant has not acted in terms of the joint memo filed. The OP has received the report of the surveyor and immediately made payment of the amount entitled to by the complainant through a cheque. The complainant has not approached this forum with clean hands. Accordingly, he prays for dismissal of the complaint with costs.



    16. In support of the case, the complainant and 1st OP have filed affidavits and pressed into service of several documents. The documents produced by the OP and the complainant came to be marked as Ex.R-1 to R-8 and Ex-C-1 to C-20. We have heard the learned counsels appearing for the parties. We have also examined the material available on records



    17. The questions that arise for our considerations are:

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

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



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

    Point No.1: Yes

    Point No.2: As per order



    REASONS



    19. At the very threshold, we must point out that, this is a third complaint filed by the complainant claiming damages from the OP. The first complaint was registered as CC.No.34/2007 and it came to be disposed on 9th April 2007 with the following order;

    “The complaint is closed with the following conditions. The complainant shall furnish the information as required by the surveyor for submitting his final report to the company. The company shall settle the claim of the complainant in terms of the conditions of the policy within 30 days from date on which the complainant furnishes the information. Liberty is given to the complainant for approaching this forum in case the OP Company fails to settle his claim as stated above. The complainant shall bear his own costs”.



    20. The second complaint No.CC.No.186/2007 came to be disposed off as per the joint memo at Ex.R-6. It reads as thus:

    “Before the District Consumer Redressal Forum, Tumkur

    CC.186/07

    Complainant Opposite party

    B.S.Dayananda The ICICI Lombard GIC Ltd

    Joint Memo filed by parties



    (1) Both the parties have agreed to dispose off the matter in the following terms.

    i) The complainant shall get the vehicle dismantled immediately.

    ii) While dismantling the vehicle the complainant shall allow the surveyor Mr.Ravishankar.T.T. at that time by informing in advance the date & time of the dismantling work

    iii) The complainant shall get the vehicle repaired and submit the bills to the opposite party/surveyor alongwith the claim forum for settlement by the OP

    iv) The Opposite party undertakes that, it will pay the charges as recommended by the surveyor with his report, on receipt of the claim form, bills and the report of the surveyor within the reasonable time.

    (2) In view of the above settlement arrived at between the parties the present complainant does not survive.



    Both the parties humbly pray the Hon’ble forum to dispose off the complainant in the above term.



    Sd/- Sd/-

    Complainant Advocate Opposite party



    21. Thereafter, the present complaint has been filed alleging that, the OP has not complied with the direction. Undisputedly, the subsequent complaint in CC.No.186/2007 came to be disposed off in terms of a memo as could be seen in the order sheet at Ex.-R-7. In Ex-R-6 certain obligations were fixed on the parties to arrive at proper conclusion of the damages of the vehicle. From the documents produced by the complainant more specifically at Ex-C-15 and C-18, it is crystal clear that, the complainant did inform the particulars to the 1st OP as well as Sri.T.M.Ravishankar, insurance surveyor and loss assessor. From the survey report dated 28-3-2008 at Ex-R-3, it is seen that, the surveyor estimated the value of loss at Rs.1,92,821/-. It is pertinent note that, in the survey report, there are certain over writings and alterations of figures given by the surveyor. The 1st OP has not explained as to who has corrected those figures and when. Further, such corrections and over writings do not find the signatures or the initials of the surveyor.


    Added to that, the affidavit of the surveyor the supporting the alteration of the figures in his report has not been filed. Therefore, we have to take the figure Rs.1,92,821/- instead of Rs.1,88,946/-. It is undisputed fact that, the OP has paid a sum of Rs.1,70,270/-. What was the basis for that payment is not explained by the OP. Therefore, we are of the opinion that, as per the surveyor report, the complainant is entitled to recover of Rs.1,92,821/- less Rs.1,70,270/- all ready paid. The OP has not placed on material to show the said amount has been paid to the complainant. The non-payment of the said amount by the OP without any justifiable cause amounts to deficiency in service.



    22. Though the complainant has claimed Rs.19,51,738/- alleging that, the OP is liable to pay of EMI of Rs.23,000/- per month, and to make good of other payments alleged to have made by him and Rs.20,000/- per month toward the loss of income and damages at Rs.60,000/- per month., we find no cogent and acceptable evidence to prove substantiate those claims. Therefore, we are not inclined to grant reliefs for those claims.



    23. The OP instead of settling the claim as shown in the survey report paid only Rs.1,70,270/- leaving the balance of Rs.22,551/-. This resulted, the complainant to approach this forum for redressal. Therefore, we feel it is just and proper to award the reasonable amount of compensation under the head of mental agony and deficiency in service. Having regard to the facts and circumstance of the case, we quantify the compensation at Rs.20,000/-.



    ORDER



    The complaint is allowed in part with costs of Rs.1,000/- directing the OPs to pay jointly and severally a sum of Rs.22,551/- towards repairs and compensation of Rs.20,000/- within 8 weeks from the date of this order, failing which, the said amount shall carry an interest at 10% per annum from the date of this complaint.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Vandana Jindal aged 27 years d/o Sh.Bhagwan Dass Jindal, Resident of House No.3325, Sector 15-D, Chandigarh.

    ….…Complainant

    V E R S U S

    1] ICICI Lombard General Insurance Co. Ltd., Zenith House, Keshavrao Khadye Marg, Mahalaxmi Mumbai 400034, through its Managing Director

    2] ICICI Lombard General Insurance Co. Ltd., SCO No.24-25, First Floor, Sector 8-C, Chandigarh, through its Branch Manager.

    3] Sh.Naresh Sindhwani, Incharge, Claim Office, ICICI Lombard General Insurance Co. Ltd., Quite Office 10, Sector 40-B, Chandigarh.

    4] Manoj Dhamija, Incharge, Claim Office, ICICI General Insurance Co. Ltd., SCO No.253, Top Floor, Sector 12, Karnal, Haryana.

    ..…Opposite Parties




    Succinctly put, the complainant purchased one Maruti Car Model 800 DX bearing No.CH-03-P-9984 from one Sh.Vijay Kumar, which was duly insured with OP Insurance Company from 27.2.2008 to 26.2.2009 midnight vide Ann.C-1 & C-2. The insurance of the said car as well as its registration certificate was later on endorsed & transferred in the name of complainant vide Ann.C-3 & C-4 respectively.


    It is averred that on 26.1.2009 when the brother of the complainant was going to Hisar to meet his friend and when he reached at Village Mund More, main road of Distt. Karnal, the car in question encountered a mechanical defect and as such he parked it in the kacha near the main road at village Mund Mor. It is also averred that the brother of the complainant along with his friend searched for a car mechanic but they could find any mechanic and when they came back, they found that the vehicle in question was struck near the safeda tree in denting condition. On the enquiry made from a passer by, it revealed that a vehicle hit the car of the complainant in order to save the stray animal. The matter was reported to the concerned Police Station Asand, Distt. Karnal, who after the enquiry registered a DDR No.30 (Ann.C-5).


    The matter was reported to OP No.1, who advised the brother of complainant to approach local office at Karnal. Thereafter the vehicle was toed to Modern Motors at Karnal by spending Rs.2000/- and then OP No.4 was approached to repair the vehicle or to settle the claim as total loss as the vehicle was fully damaged. Then on the advise of OP No.4, OP No.3 at Chandigarh was approached and requisite documents were submitted. The estimated service cost was prepared and the estimate of Rs.2.00 lacs approx. was given by the service agency for the vehicle of the complainant, which was communicated to the OPs.


    However, the OPs instead of settling the claim, issued a letter for renewal of the policy Ann.C-6. It is next averred that the vehicle in question is lying with Service Station at Karnal and it has been specifically stated by them to either get the vehicle repaired or settle the claim, otherwise the complainant had to bear the expenses of parking charges @ Rs.200/- per day. Therefore, the present complaint has been filed alleging the non-settlement of claim of the complainant as gross deficiency in service, which caused him great mental tension, physical harassment and financial loss.

    2] OPs No.1 & 2 filed reply and admitted that the vehicle in question was insured with them. It is submitted that on receipt of the intimation about the alleged accident, Sh.K.L.Grover was appointed as investigator. Besides this, Sh.A.P.Chawla was also appointed as Surveyor, who had been continuously following up with the complainant for the purposes of assessment and submission of the final assessment report. It is also submitted that the complainant did not assist the said surveyor in the assessment. The interim survey was carried out on 4.2.2009 and the interim assessment on repair basis was assessed at Rs.78,251/-. It is further submitted that the complainant vide letter dated 2.3.2009 was informed by the Surveyor to visit premises of the dealer and to discuss the matter & settle the claim qua repair of the vehicle and to provide the original of the necessary documents for the purposes of verification & submission of the final assessment report, but the complainant herself failed to provide the same in a timely manner.


    The surveyor again vide letter dated 26.5.2009 requested the complainant to submit the necessary documentation so that the final report may be submitted to OPs but again the complainant failed to provide the same and as such the final claim could not be processed & completed. It is asserted that the market value of the car of the same make & model is Rs.45,000/- and therefore, the complainant is entitled to the same. Rest of the allegations have been denied and it is prayed that complaint be dismissed.

    3] OPs No.2 & 3 did not turn up despite due service of notice, hence they were proceeded against exparte.

    4] Parties led evidence in support of their contentions.

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

    6] The contention of the OPs is that certain documents were demanded from the complainant which she failed to submit due to which the final survey report was delayed resulting in the delay in finalisation of the claim. In their written reply the OPs have not mentioned as to what documents were needed to finalise the claim which the complainant failed to submit. There is only one letter dated 2.3.2009 (Annexure R-I) vide which the driving licence, RC and the police report were asked for by the OPs, which the complainant alleges had already been submitted to them. Annexure R-2 is the report of the investigator in which it is mentioned that Amit Jindal s/o Shri Bhagwan Dass Jindal was the driver at the time of the accident and copy of his DL had already been submitted to the office of the OPs. So far as the RC is concerned, there is no dispute about it that the complainant was the owner of the vehicle and this fact has been admitted even by the surveyor.


    The police report is to be collected by the OPs from the police and was not with the complainant and, therefore, she could not submit the same. Otherwise also, the report was submitted by the surveyor and there is no mention in it if any of these documents were required for submitting the final survey report. The investigator has also submitted his report (Annexure R-2) but even in spite of that the claim was not paid to the complainant. The findings of the investigator show that the facts were verified and were found to be genuine as mentioned in the report.

    7] There is no dispute about it that the vehicle was insured for Rs. One lac as mentioned in the policy (Annexure C-II). As per the surveyor, a sum of Rs.78,251/- is required for replacement of a new body shell alone. It appears this is the only reason why the OPs are delaying the payment of the claim because according to them the vehicle of a similar model is available in the market for Rs.40,000/-.


    They, therefore, do not want to pay more than that as is mentioned in para 8 of the written reply. However, the IDV of the vehicle cannot be fixed by the OPs alone. The price of the vehicle has to be re-fixed with the consent of the complainant. Otherwise, the IDV was assessed by the OPs and was mentioned to be Rs.one lac in the insurance policy (Annexure C-II). They cannot now withdraw this admission unilaterally as that would cause financial damage to the complainant. We are, therefore, of the opinion that the OPs are liable to pay Rs.one lac as insurance claim. Admittedly, it is a case of total loss.

    8] The OPs have delayed the finalisation of the claim unnecessarily without any justification. They shall, therefore, pay interest on the amount retained by them.

    9] In view of the above discussion, we are of the opinion that the present complaint succeeds. The same is accordingly allowed. The OPs are directed to pay to the complainant Rs.one lac as compensation alongwith interest @ 8% per annum since 6.3.2009 (one month after the report of the surveyor) till the amount is actually paid to the complainant alongwith Rs.5,000/- as litigation costs. If the aforesaid amount is not paid within the period of thirty days from the date of receipt of copy of this order, the OPs would be liable to pay the entire amount alongwith penal interest @ 12% per annum since the filing of the present complaint i.e. 20.4.2009 till the payment is actually made to the complainant.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Hari Singh son of Mehta Ram, resident of VPO Sidhpur, Tehsil Dharamshala, District Kangra (HP)

    Complainant

    Versus



    ICICI Lombard, General Insurance Company Limited, ICICI Bank Towers, Bandra Kurla Complex, Mumbai 400051, through its Regional Manager.



    Opposite party








    ORDER



    The brief facts , as alleged, in the complaint, are that the complainant Sh. Hari Singh, had purchased one cow for earning his livelihood, and for his self employment, and had got it insured with the opposite party, for a sum of Rs.10000/-, vide Insurance Policy No.4057/0000098, valid with effect from 17.1.2008 upto 16.1.2011. It is alleged that ear tag No.0060259 was fixed on this insured cow, by the opposite party. However, this cow, had died on 5.3.2008, due to injuries.


    The post mortem of this cow, was also got done. The matter about the death of this cow, was also reported to the Pradhan of the Gram Panchayat-Sidhpur, who had issued a certificate dated 14.5.08. The complainant had lodged his claim with the opposite party, and had submitted all the required documents with them, but they vide their letter dated 10.10.2008, had repudiated his claim, on the ground that the death of the insured cow had occurred, due to mis-management of Farm and Stable.

    It is alleged that the opposite party had repudiated his claim on vague and arbitrary reasons, and they have been deficient, in rendering the proper services to him, due to which, he has suffered mental agony, harassment, and financial loss. So, he has claimed the relief of Rs.10000/-( the value of the insured cow), alongwith interest @ 9% per annum, till it’s final payment, and has also claimed compensation to the tune of Rs.15,000/-, for his mental agony, and harassment, and has also claimed litigation charges to the tune of Rs.5,000/-.

    2. The opposite party has contested this complaint, by filing their reply on 8.4.2009, in which they have contended that the complaint is not maintainable in the present form. Neither the complainant has got any cause of action, nor has got any locus standi to file this complaint. They have contended that the insured cow had died due to the negligence and mis-management, on behalf of the complainant. So, he is not entitled to any claim.

    They have contended that the cow was suffering from the injuries, for the last 20 days, but the complainant had not provided any treatment/medicine to the cow, and ultimately, the cow had died on 5.3.2008, due to the negligence on the part of the complainant. They have contended that this cause of death, is not covered in the Insurance Policy. They have also contended that the complainant has suppressed the material facts from this Forum, and has not come with clean hands. They have further contended that since the complainant has got no cause of action, so the present complaint deserves dismissal.

    3. We have considered the arguments of the learned counsel for the parties, and have also carefully gone through the case file, facts and evidence on the record.

    4. Ex.CW-1, is the affidavit of the complainant Sh. Hari Singh. Annexure C-3, is the photo copy of the certificate dated 14.5.08, issued by the Pradhan of the Gram Panchayat-Sidhpur. Annexure C-10, is the photo copy of the Post Mortem Report, dated 13.5.08, issued by the Veterinary Doctor Sh.Gaurav Mahajan. Annexure C-9, is the photo copy of the death certificate, issued by the Veterinary Doctor, and Annexure C-4 is the photo copy of the claim form submitted by the complainant Sh. Hari Singh with the opposite party.

    5. On the other hand, Ex.OPW-1 is the affidavit of Sh. Ravinder Dhull, Legal Manager of the opposite party.

    6. The insurance and the death of the cow, is admitted by both the parties. The identity of the cow is also not in dispute, as ear tag bearing No.0060259, fixed by the opposite party, at the time of insurance of the cow, was found in the ear of the cow, at the time of it’s death/post mortem.

    7. The only contention of the opposite party is that there was mis-management and negligence on the part of the complainant, for the medical treatment of the insured cow. Except the affidavit of Sh.Ravinder Dhull, no other solid, cogent, convincing, and reliable proof/evidence has been led by the opposite party to show that how there was any negligence, or mis-management on the part of the complainant, in giving proper medical treatment to the insured cow, in it’s ailment. We are satisfied that the complainant being the owner of the insured cow, must have medically given proper medical treatment to his cow. The contentions of the complainant that the cow had died; due to injuries, is corroborated by the post mortem report.


    So, we feel satisfied that the claim of the complainant was repudiated by the opposite party, without any solid/justified reasons. So, we hold that the complainant is entitled to get Rs.10000/-(the value of the insured cow), alongwith interest @ 9% per annum, from the date of complaint, till it’s final payment. We also feel satisfied that due to deficiency in service on the part of the opposite party, the complainant has also suffered mental agony and harassment. So, we assess Rs.1500/-, as compensation, for his mental agony and harassment. We also assess Rs.1000/-, as litigation costs.

    8. No other point has been argued or urged before us.

    9. In view of the discussion made hereinabove, the complaint is partly allowed. We order to the opposite party to pay Rs.10000/- (the value of the insured cow), to the complainant alongwith interest @ 9% per annum, from the date of complaint, till it’s realization. We also direct the opposite party to pay compensation to the complainant to the tune of Rs.1500/-, for his mental agony and harassment, and litigation costs to the tune of Rs.1000/-, which will be paid by the opposite party, within 30 days, after the receipt of copy of this order. The copy of this order be sent to the parties, free of costs, by post, and the file after it’s due completion be consigned to the record-room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Smt. Jatamba Devi wife of Mehar Chand, VPO Fatehpur, Post Office Sidhpur, Tehsil Dharamshala, District Kangra-HP



    Complainant

    Versus



    ICICI Lombard, General Insurance Company Limited, SCO Sector 40-B, Chandigarh, UT through its Regional Manager

    Opposite party



    ORDER



    The brief facts of this complaint, as alleged, are that the complainant Smt. Jagtamba Devi, had purchased one cow for her self employment, and earning her livelihood, and had got it insured with the opposite party, for a sum of Rs.10000/-, vide Insurance Policy No.4057/0000098, valid with effect from 22.2.2008 upto 21.2.2011. It is alleged that ear tag No.0135325 was put on this insured cow, by the opposite party. However, this cow had died on 25.8.2008, due to fall in a Kuhal. The post mortem of this cow, was also got done. The matter about the death of this cow, was also reported to the Pradhan of the Gram Panchayat Sidhpur, who had issued a certificate dated 25.5.08 in this respect. The complainant had lodged her claim with the opposite party, and had submitted all the required documents with them, but they vide their letter dated 12.8.2008, had repudiated her claim, on the ground that the death of the insured cow had occurred, due to mis-management of Farm or Stable.


    It is alleged that the opposite party had repudiated her claim on vague and arbitrary reasons, and they have been deficient, in rendering the services to her, due to which, she has suffered mental agony, harassment, and financial loss. So, she has claimed the relief of Rs.10000/-( the value of the insured cow), alongwith interest @ 9% per annum, till it’s final payment, and she has also claimed compensation to the tune of Rs.10000/-, for her mental harassment, and has also claimed litigation charges to the tune of Rs.5000/-..

    2. The opposite party has contested this complaint, by filing their reply on 7.4.2009, in which they have contended that the complaint is not maintainable in the present form. Neither the complainant has got any cause of action, nor has any locus standi to file this complaint. They have contended that as per the documents furnished by the complainant, the cow had died due to fall in the Canal, and the death of the insured cow had occurred due to the negligence and mis-management, on behalf of the complainant. So, she is not entitled to any claim, and the complainant was informed by them vide their letter No.MUM/CS/103 dated 12.8.2008, regarding the non-settlement of her claim.

    They have also contended that the complainant has suppressed the material facts from this Forum, and has not come with clean hands, so the present complaint deserves dismissal, with costs.

    3. We have considered the arguments of the learned counsel for the parties, and have also carefully gone through the case file, facts and evidence on the record.

    4. Ex.CW-1, is the affidavit of the complainant Smt. Jagtamba Devi. Annexure C-1, is letter dated 12.8.2008 issued by the opposite party, whereby the claim of the complainant was rejected. Annexure C-2, is the photo copy of the Certificate dated 25.5.08 issued by the Pradhan of the Gram Panchayat, Sidhpur, in which the Pradhan had certified that the insured cow bearing ear Tag No.0135325 of the complainant had died, due to fall in a Kuhal(canal). Annexure C-3, is the photo copy of the certificate of Insurance dated 22.2.08. Annexure C-4, is the photo copy of the post mortem report dated 25.5.08, in which the Veterinary Doctor Sh.Gaurav Mahajan, has opined that the insured cow had died due to asphyxia caused by drowning in the canal.

    5. On the other hand, Ex.OPW-1 is the affidavit of Sh. Ravinder Dhull, Legal Manager of the opposite party.

    6. The insurance and the death of the cow, is admitted by both the parties. The identity of the cow is also not in dispute, as ear tag bearing No. 0135325 fixed by the opposite party, at the time of insurance of the cow, was duly found in the ear of the cow, at the time of it’s death/post mortem.

    7. The only contention of the opposite party is that there was mis-management and negligence on the part of the complainant in handling of the insured cow. Except the solitary affidavit of Sh. Ravinder Dhull, no other proof/evidence has been led by the opposite party to show that how there was any negligence, or mis-management on the part of the complainant, in handling the insured cow. We are satisfied that the complainant being the owner of the insured cow, must have properly handled this cow.


    The contentions of the complainant that the cow had fallen in the canal and had died, are also corroborated by the post mortem report. So, we feel satisfied that the claim of the complainant was repudiated by the opposite party, without any solid/justified reasons. So, we hold that the complainant is entitled to get Rs.10000/-(the value of the insured cow), alongwith interest @ 9% per annum, from the date of complaint, till it’s final payment. We also feel satisfied that due to deficiency in service on the part of the opposite party, the complainant had also suffered mental agony and harassment. So, we assess Rs.1500/-, as compensation, for her mental agony and harassment. We also assess Rs.1000/-, as litigation costs.

    8. No other point has been argued or urged before us.

    9. In view of the discussion made hereinabove, the complaint is partly allowed. We order the opposite party to pay Rs.10000/- (the value of the insured cow), to the complainant alongwith interest @ 9% per annum, from the date of complaint, till its realization. We also direct the opposite party to pay compensation to the complainant to the tune of Rs.1500/-, for her mental agony and harassment, and litigation costs to the tune of Rs.1000/-, which will be paid by the opposite party, within 30 days, after the receipt of copy of this order. The copy of this order be sent to the parties, free of costs, by post, and the file after it’s due completion be consigned to the record-room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Prem Sukh Saini son of Sh. Ram Dayal Saini resident of village Bhour, Post Office Kanaid, Tehsil Sunder nagar, District Mandi, H.P.

    …Complainant





    V/S



    1. The Branch Manager , ICICI Lombard General Insurance Company Ltd Chaman Complex Mandi, H.P.

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

    ..Opposite parties.








    ORDER.

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

    ( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties . The complainant averred that he is registered owner of Truck No. HP-65-0764 financed by Kotak Mohindra Bank Ltd Ludhiana . The vehicle was insured with the opposite parties which was valid with effect from 12-10-2007 to 11-10-2008 in the sum of Rs.5,74,035/- . The complainant averred that the driver of said vehicle was Sh. Hans Raj son of Sh.Sher Singh .


    The vehicle had gone to Leh for delivering the goods . On 2-11-2007, on return journey ,the vehicle met with accident at place Tangan Gala Top which is 90 kilometres from Sarchu towards Leh due to locking of steering and it went out of road and fell about 600 feet down below the road. The vehicle was totally damaged and lying at the spot of accident. The complainant further averred that intimation of the accident was given to the police and daily diary report was recorded . The complainant further averred that the copy of the rapat was supplied to the opposite parties alongwith application on 17-11-.2007 and that relevant documents and information was supplied to the opposite parties for finalization of the insurance claim of the said truck, but no action was taken by the opposite parties .


    The complainant further averred that the place of accident of insured truck of the complainant is snow bound area and earlier it was not possible for the surveyors of the opposite parties to inspect the truck but since the snow had melted much earlier in May 2008 the surveyor could reach the spot and inspect the vehicle . The complainant alleged that the opposite parties were requested time and again to finalize the full and final damage claim of the vehicle and also served them with legal notice dated 19-6-2008 but no action was taken which act on the part of the opposite parties is clear cut case of deficiency in service .


    The complainant has filed copies of registration certificate, driving license , daily diary report , intimation letter of accident dated 17-11-2007,postal receipt, notices and acknowledgements slip alongwith the complaint. The complainant further alleged that he had to pay interest on the loan and he had suffered ,mental tension , torture and agony due to non settlement of the claim and had claimed a sum of Rs.50,000/- as compensation. With these allegations the complainant had sought direction to the opposite parties , to pay an amount of Rs.5,74,035/- as full and final settlement of the claim on total loss basis with interest at the rate of 12% per annum from the date of accident till payment , to pay Rs.50,000/- as compensation. Apart from this , cost of the complaint has also been claimed.

    2. The opposite party had filed reply . Preliminary objections have been raised that there is no deficiency in service on the part of the opposite parties, that the complaint is not maintainable , that the alleged accident had never occurred, that the complainant intimated the opposite parties about the alleged accident when all the roads were blocked because of heavy snowfall and even D.D. report was got entered when all the roads were blocked and it had been admitted by the complainant that no survey could be conducted in these days because of snow fall , that the surveyor of the opposite party proceeded to the place disclosed as place of accident by the complainant and it was told that the accident had taken place ahead of Sarchu while going towards Leh but surveyor did not find the vehicle at the above place and on asking the complainant , new place of accident was disclosed ahead of Sarchu towards Leh to Tanglungla but did not provide any documents in support of the alleged accident , ,that the complainant is guilty of suppression of material facts , that the complainant has flouted the principle of law of equity, and played fraud upon the opposite parties with intention to extract money from them, that the complainant was plying the vehicle against the provisions of the M.V.


    Act and without valid documents i.e. route permit and fitness certificate , that the complaint is estopped to file the present complaint by his own act and conduct. On merits . it has been admitted that the vehicle involved in the alleged accident was insured with the opposite parties and complainant is the registered owner of the vehicle . It has been averred that the complainant had informed the police vide DD report recorded by the police but the complainant had mentioned a different place of accident in DD report. The opposite parties have denied that relevant documents have been supplied to them.


    It has further been denied that no application was given to them on 17-11-2008. It has further been stated that the place mentioned by the complainant as place of occurrence is a snow bound area and it is not possible for any one to approach this place during the month of November . The opposite parties had submitted that the complainant has given information regarding the accident which has never occurred . The opposite parties have denied any deficiency in service and had stated that the claim was rightly repudiated. The complaint had been sought to be dismissed.

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

    4. We have heard the ld. counsel for the parties and have carefully gone through the record. It is admitted case of the opposite parties that the vehicle in question was insured with it for the period with effect from 12-10-2007 to 11-10-2008. It has also been admitted by the opposite parties that the complainant is the registered owner of the vehicle in question. The claim of the complainant has been denied on the ground that the accident as alleged by the complainant had never occurred and the complainant had manipulated and mis-represented the facts and played fraud upon the opposite parties to extract money from them.


    Further case of the opposite parties is that the complainant was plying the vehicle against the provisions of the Motor Vehicles Act and without valid documents i.e. route permit , fitness certificate etc and in this respect the opposite parties had relied upon the report of Surveyor dated 18-8-2008 Annexure R-2 who in his report has mentioned that the route permit of the vehicle in question was not endorsed for the State of J& K as accident had taken place in the jurisdiction of J & K State.



    5 Now the controversy to be decided by this Forum is as to whether the accident as alleged by the complainant had never occurred and whether the complainant had played fraud upon the opposite parties .


    The onus was upon the opposite parties to prove that no accident as alleged by the complainant had ever occurred and the complainant had played fraud upon them. However, no satisfactory evidence has been led by the opposite parties to prove that the complainant had played fraud upon them, in order to extract money. As per the opposite parties, the complainant intimated about the alleged accident when all the roads were blocked due to heavy snow fall and no survey could be conducted in those days because of heavy snow fall and after opening of the road in the end of May,2008, the opposite parties appointed surveyor for inspection of the vehicle and when the Surveyor proceeded to the place of accident as disclosed by the complainant, the Surveyor did not find the vehicle at the place ahead of Sarchu while going towards Leh.


    Thereafter the Surveyor wrote letters to the complainant to tell him about the place of accident and to provide the vehicle’s documents , then the complainant disclosed a new place of accident and changed the site of accident ahead of Sarchu towards Leh to Tanglungla. According to the opposite parties, the complainant sent a representative alongwith the surveyor and he took the surveyor where the vehicle was lying and it was found that all the parts were removed from the vehicle.


    However, in our opinion, the mentioning of the aforesaid facts by the opposite parties is not sufficient to prove that no accident had taken place. The perusal of the record reveals that the information about the accident was given to the police and in this respect daily diary report has been entered in Police Station Keylong which has been reported by the driver of the vehicle in question. Sh. Hans Raj driver had also filed affidavit dated 19-2-2009 wherein he has deposed that while returning from Leh the truck met with an accident at a place Tangan Gala top which is 90 kilometres from Sarchu towards Leh due to locking of steering and it went out of road and fell about 600 feet down below the road .


    It has further been deposed in the affidavit that thereafter the deponent and conductor Sh. Manoj Kumar took shelter with the Shepherd nearby the place of accident and remained there till 7-11-2007, when they reached at Keylong on 8-11-2007 after getting lift in the truck at night , then reported the matter to the Police at Police Station Keylong regarding the accident. He further deposed that he had accompanied the surveyor and showed him the place of accident on 15-8-2008 and all the relevant documents were provided to the surveyor by the owner of the truck in question in his presence.


    The Surveyor in his report Annexure R-2 had also stated that the accident took place on 2-11-2007 at 3 PM at Tanglungla . The opposite parties had failed to produce any evidence to the contrary that no accident took place and the complainant had manipulated and misrepresented the facts and played fraud in order to extort money from them. Therefore, from the perusal of the daily diary report as well as the affidavit of the driver coupled with surveyor report it has become clear that the truck in question met with an accident 2-11-2007 at 3 PM at Tanglungla.



    6 The opposite parties had denied the claim of the complainant on the ground that the vehicle was being plied against the provisions of the Motor Vehicles Act in violation of the route permit . According to the opposite parties the vehicle was being plied in the jurisdiction of J & K State whereas route permit issued by the Regional Transport Authority, Mandi authorized him to ply the vehicle within the Area of Himachal Pradesh. The class of the vehicle in question is H.G.V as per the copy of the registration certificate adduced in evidence by the complainant himself .


    The route permit dated 1-6-2005 adduced by the opposite parties in evidence shows that it was issued by Regional Transport Authority, Mandi and was valid from 1-6-2005 to 31-5-2010 . The vehicle has a valid registration certificate. Copy of route permit shows that it was issued by Regional Transport Officer , Mandi with respect to the vehicle in question for plying the same only within the area of Himachal Pradesh. The vehicle met with an accident ahead of Sarchu towards Leh in the State of J& K . Therefore , it has become clear that at the time of the accident, the vehicle was being plied outside the State of Himachal Pradesh in violation of the route permit.

    7 Now the question which arises for determination by this Forum is as to whether the opposite parties are justified in repudiating the claim of the complainant only on the ground of violation of the route permit. It is not the case of the opposite parties that the complainant was plying the vehicle without any permit at all . The case of the opposite parties is that the insured was not having the route permit to ply the vehicle in the area of J& K . It is pertinent to mention here that there is nothing on record to suggest that the plying of the vehicle on a route other than the scheduled route had in any manner contributed to the accident. As per the record available , the accident had occurred due to locking of steering system. It has not been established by the opposite parties that the violation of the route permit had any nexus with the cause of the accident . Moreover , it cannot be said that such breach is a fundamental breach and that the owner should in all events , be denied indemnification.


    In our opinion , the breach was not so fundamental in nature so as to put an end to the contract of insurance. In a case titled R.K.College vs Ramesh Chand and others AIR 2007 ( NOC) 1924 Rajasthan , offending vehicle was found on nationalized route not covered under permit , however, it had been held by the Hon’ble Court that the insurer cannot be exonerated of its liability as it might be a case of violation of condition of permit but it cannot be said that by such fact alone there occurred a breach of insurance policy condition. In the facts and circumstances of the present case also , in our opinion the breach regarding violation of the route permit was not so fundamental breach empowering the opposite party to defeat the claim of the complainant. In nut shell, the opposite party had been deficient in providing service to the complainant in repudiating the claim of the complainant.

    8 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle. The complainant in his complaint had clamed Rs.5,74,035 /- on total loss basis . On the other hand the opposite party has produced in evidence Motor ( Final ) Surveyor report dated 18-8-2008 of Sh. Mohinder K Sharma which is annexure R-2.


    As per the report of surveyor the captioned vehicle was examined by him carefully and it was observed that all parts have been removed off the vehicle, only damaged load body, cabin and chassis frame were lying at spot of accident along with front axel beam. Aforesaid fact has not been denied by the complainant by leading any evidence to the contrary. Sh. Mohinder K Sharma in his final survey report Annexure R-2 had assessed the liability on net of salvage basis at Rs.3,49,035/-. The opposite parties had also adduced in evidence affidavit of Sh.Mohinder K Sharma in support of his report . The complainant had not adduced any satisfactory evidence contrary to the report of Surveyor. Moreover the report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons.


    The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kiran Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor Annexure R-2 and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle on net of salvage basis is at Rs.3,49,035/-.

    9 In the light of above discussion, the complaint is allowed and the opposite parties are directed to pay to the complainant Rs.3,49,035 /-. with interest at the rate of 9% p.a. from the date of filing of the complaint till realization . In addition to this the opposite parties shall also pay Rs.2000/- as costs of litigation .



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



    11 File, after due completion be consigned to the Record Room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Shri Anwar Ahemad S/o Sh. Ameerdeen Ahemad,

    Vill. Suraj Majra, PO: Baddi, Tehsil Nalagarh,

    Distt. Solan (H.P.)



    … Complainant

    Versus



    ICICI Lombard General Insurance Company Limited,

    Quite Office No:10, Sector 40-B, Chandigarh,

    Through its Branch Manager.

    …Opposite Party.







    O R D E R:




    The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant, avers that he is registered owner of Tata Indica Car bearing registration No.HP-12B-6227, which came to be insured by him, with the OP-Company during the period, 29.12.2006 to 28.12.2007, for a sum of Rs.2.00 lacs. He further averred that, on, 23.10.2007, when his son was going from Baddi to Chandigarh, the aforesaid car, unfortunately, met with an accident, hence, suffered extensive loss.


    As usual, the matter, is stated to have been brought to the notice of the OP-Company, who instead of settling the claim, dilly-dallied, it, on, one pretext or the other. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, inasmuch, as, violation of the terms and conditions of the insurance policy and there being no deficiency in service. On merits, it is contended that since, the car was insured as a private car, but the complainant was using the same for commercial purpose against the terms and conditions of the insurance policy. Hence, it is, denied that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

    5. The vehicle of the complainant, met with an accident on, 23.10.2007, and a Rapat qua the said accident came to be lodged with the concerned Police Station. The OP-Company, has, repudiated the claim, as asserted by the complainant, merely on the strength of the report of Investigator, Annexure OP-1, the vehicle having been used for commercial purpose, at, the relevant time, when, it met with an accident.

    6. However, the OP-Company, has not, adduced any proof qua the fact that the vehicle was being used for commercial purpose, when it met with an accident. No affidavit of the author of Annexure OP-1 has been brought on record, by the OP-Company, for us, to, hence, to concur with the same. They have also not placed on record the material, detailing the fact that the aforesaid car, was registered with any Taxi Union. Hence, for lack of said best evidence, it cannot be construed by any stretch of imagination, that the OP-Company has been able to prove its defence. Rather, when their exists on record the copy of registration certificate of the car, whose contents divulges the fact that the vehicle is registered as a private car, having registration No.HP-12B-6227 its existence also repulses the stand of the OP.


    Moreover, when the complainant, has also placed on record, the affidavit of Anees Ahmed, who has in his affidavit, unequivocally, deposed that the car at the relevant time, when it met with an accident, was being used by his family when they were going to Chandigarh, hence, when their exists on record, such cogent and convincing evidence, obviously, its, existence further also belies the defence of the OP-Company that the vehicle was being used for commercial activities, though, it was insured as a private car. Hence, the non-settlement of the claim of the complainant, was arbitrary and without any justifiable cause.

    7. Since, the OP-Company has not been able to bring home the guilt of the complainant, inasmuch, as, he having breached the terms and conditions of the insurance policy, now, the only point, which requires adjudication by us, is, the amount of indemnification payable by the OP-Company to the complainant. The complainant, in order to prove the quantum of loss, has depended upon the repair bill, issued by Joshi Auto Zone Pvt. Ltd., Chandigarh, in favour of the complainant, for a sum of Rs.1,03,400/-. The aforesaid repair bill, having remained un-repulsed, on behalf of the OP-Company, is, to be construed to be the only evidence available on record, in order to quantify the amount of indemnification.

    8. Resultantly, we allow the complaint and direct the OP-Company as follows:-

    i) That the OP-Company, shall indemnify the complainant, to the extent of Rs.1,03,400/-;



    ii) That the aforesaid amount, shall carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 23.02.2008, till actual payment of the aforesaid amount is made;



    iii) That the OP-Company, shall also pay litigation cost of Rs.2500/-, to the complainant;



    iv) That the OP-Company, shall comply with this order, within a period of forty five days, after the date of receipt of copy of this order;

    9. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Pandrangi Linga Rao,

    S/o. Panaiah,

    R/o. Jonnalagadda Village and Post,

    Guntur District.



    C/o. N.Uma Maheswara Rao, Advocate,

    Ankammanagar, Guntur. … Complainant

    AND



    1. ICICI Lambard General Insurance Ltd.,

    Rep. by its Attorney,

    Registered office at ICICI Bank Towers,

    Bandra, Kurla Complex,

    Mumbai – 400 034.

    2. M/s. ICICI Lambard General Insurance Ltd.,

    Rep. by its Branch Manager,

    Branch office at Usman Plaza,

    6-3-352/1, 2nd and 3rd floors,

    Road No.1, Banjara Hills, Hyderabad.

    3. M/s. ICICI Lambard General Insurance,

    6/1, Arundelpet, Guntur. …. Opposite parties







    O R D E R




    This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant praying to direct the opposite parties to pay compensation of Rs.63,000/- as per the claim application and for costs.

    The averments of the complaint in brief are as follows:

    The complainant purchased TVS XL Super HD from M/s. Pioneer Automotives, Besides Congress Office, GT Road, Guntur under invoice No.5500, dt.09-03-06, which is financed by Kusuma Sankar Finance Corporation, Guntur and the said vehicle was insured with 3rd opposite party being a representative of opposite parties 1 and 2 at Guntur under policy No.3005/1663782/00/0000, dt.09-03-06 and it is valid upto March, 2007.

    The said vehicle was stolen on 10-09-06 and the complainant gave police complaint on 10-09-06 which was registered as crime No.578/06 under section 379 of IPC, the complainant also gave written representation to the RTA, Guntur on 21-09-06 about the theft of vehicle. The complainant informed the same to the opposite parties. Thereupon, the 1st opposite party obtained indemnity cum declaration undertaking on 05-12-06 from the complainant. Subsequently, the complainant used to attend 3rd opposite party for payment of insurance amount. But the 3rd opposite party did not choose to pay the cost of vehicle i.e., Rs.22,500/-.


    Thereupon the complainant gave representation to the opposite parties, but the opposite parties refused to pay the insured amount i.e., cost of the vehicle in the event of theft of vehicle. Due to nonpayment of vehicle cost, the complainant has to travel by other modes, due to which the complainant sustained huge loss. Hence, this complaint.

    The complainant claimed an amount of Rs.22,500/- for the loss of vehicle, Rs.12,000/- for loss of money by traveling in other modes, Rs.10,000/- for mental agony, Rs.500/- for postal and other expenses, Rs.3000/- for legal expenses, Rs.15,000/- for compensation. In all the complainant claimed an amount of Rs.63,000/-.

    The opposite parties 1 to 3 have filed their version denying the allegations made in the complaint.

    The brief facts of version of OPs 1 to 3 are as follows:

    The TVS XL Super vehicle bearing registration No.AP 7AJ 1285 was insured with this opposite party under two wheeler’s package policy vide policy No.3005/1665182/00/000 and the policy commences from 09-03-06 to 08-03-07.

    In the complaint filed by the complainant, there is no date of theft and time mentioned and the complaint is filed to claim the loss under various heads as if the complainant incurred loss claiming Rs.63,000/- and due to his negligence. The complaint is vague and this opposite party is not liable to pay compensation. The complainant stated in the complaint that the vehicle was stolen on 10-09-06 and gave police report on 10-09-06, but actually theft occurred on 06-08-06 at about 6.45 am in front of P.Prasad’s house at Chandramouli Nager, 3rd line, Guntur and the same was given by the complainant in writing to the opposite party. But the version of complainant is different as if the vehicle was stolen on 10-09-06. So this attitude of the complainant shows that in order to gain wrongful advantage from the opposite party this complaint is filed.

    The complainant is using the vehicle for transportation of goods which is not covered under the policy. The complainant violated the terms and conditions of the policy. There is delay of 34 days in giving FIR to the police and also till today no final report was filed by the police and the complainant using the vehicle for carrying milk i.e., transportation of goods, which is not covered in the policy and also left the vehicle on the road without locking and on this ground the claim was repudiated and the same was intimated to the complainant. The complainant without approaching the arbitrator filed this complaint before this Forum. Hence, the complaint is liable to be dismissed.

    The complainant and opposite parties have filed their respective affidavits in support of their contentions reiterating the facts.

    On behalf of complainant Ex.A1 to A7 are marked. Ex.A1 is the invoice under which the complainant purchased the vehicle. Ex.A2 is the two wheeler package policy. Ex.A3 is the FIR under section 379 IPC registered for the loss of vehicle of complainant. Ex.A4 is the referred notice of Pattabipuram Police. Ex.A5 is the letter by complainant to RTA, Guntur. Ex.A6 is the certificate of registration regarding the lost vehicle. Ex.A7 is the indemnity cum declaration undertaking given by the complainant.

    Now the points for consideration are that

    1. Whether there is any deficiency of service on the part of opposite parties?
    2. To what relief the complainant is entitled?

    POINT No.1

    It is the case of the complainant that he purchased two wheeler under Ex.A1 and insured the same under Ex.A2 and he lost the same on 10-09-06 and intimated the fact of loss of vehicle to the opposite parties and claimed insurance amount and that the opposite parties repudiated the claim on the ground that the vehicle was used for transportation of milk by the complainant and also on the ground that the complainant left the vehicle on the road without locking the same.

    The case of the opposite parties is also that the complainant used the vehicle for transportation of milk and the complainant left the vehicle on the road without locking the same.

    The complainant herein is the milk vendor. He used to sell milk by carrying it on his two wheeler from door to door for his livelihood. Therefore, it cannot be said that the vehicle is used for transportation. In case of theft of a vehicle the breach of condition is not germane. It is a well settled that in case of theft of insured vehicle, the nature of its use is not to be looked into and the insurer cannot repudiate the insured claim on that basis (vide 2008 CTJ 680 (SC) (CP) National Insurance Company Ltd. Vs. Nitin Khandelwal).

    It is practically not possible to lock the vehicle wherever it is stopped as the complainant is a milk vendor and using it for carrying the milk and that he has to stop his vehicle from door to door. In those circumstances, it is not practically possible to lock the vehicle while moving from door to door.

    The opposite parties in their version stated that the actual theft occurred on 06-08-06 at about 6.45 am in front of Mr.P.Prasad’s house at Chandramouli Nagar, 3rd line, Guntur and the same was given by the complainant in writing. The said written statement given by the complainant is not filed by the opposite parties. As seen from Ex.A3 (FIR) the vehicle was lost on 10-09-06 at about 6,45 am at Chandramouli Nagar, Guntur. Admittedly the insurance policy is from 09-03-06 to 08-03-07. The vehicle was lost on 10-09-06. Therefore, the repudiation of the claim of insured amount by the opposite parties is not justified and unreasonable. Hence, there is deficiency of service on the part of opposite parties in not settling the claim. Accordingly, this issue is answered in favour of the complainant.







    POINT No.2

    The complainant claimed an amount of Rs.63,000/- under various heads. We feel it just and reasonable to direct opposite parties to pay the insured amount of Rs.22,500/- to the complainant together with compensation of Rs.3000/- and legal expenses of Rs.1000/-. However, we decline to award other amounts for want of material on record.

    In the result, the complaint is allowed in part in terms as indicated below:

    1. The opposite parties 1 to 3 are directed to pay an amount of Rs.22,500/- to the complainant towards claim of the insurance for the lost vehicle.

    2. The opposite parties 1 to 3 are further directed to pay an amount of Rs.3000/- towards compensation and Rs.1000/- towards cost of litigation.

    3. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which they shall carry interest @ 9% p.a. till the date of realization.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Pandrangi Linga Rao,

    S/o. Panaiah,

    R/o. Jonnalagadda Village and Post,

    Guntur District.



    C/o. N.Uma Maheswara Rao, Advocate,

    Ankammanagar, Guntur. … Complainant

    AND



    1. ICICI Lambard General Insurance Ltd.,

    Rep. by its Attorney,

    Registered office at ICICI Bank Towers,

    Bandra, Kurla Complex,

    Mumbai – 400 034.

    2. M/s. ICICI Lambard General Insurance Ltd.,

    Rep. by its Branch Manager,

    Branch office at Usman Plaza,

    6-3-352/1, 2nd and 3rd floors,

    Road No.1, Banjara Hills, Hyderabad.

    3. M/s. ICICI Lambard General Insurance,

    6/1, Arundelpet, Guntur. …. Opposite parties






    O R D E R


    This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant praying to direct the opposite parties to pay compensation of Rs.63,000/- as per the claim application and for costs.

    The averments of the complaint in brief are as follows:

    The complainant purchased TVS XL Super HD from M/s. Pioneer Automotives, Besides Congress Office, GT Road, Guntur under invoice No.5500, dt.09-03-06, which is financed by Kusuma Sankar Finance Corporation, Guntur and the said vehicle was insured with 3rd opposite party being a representative of opposite parties 1 and 2 at Guntur under policy No.3005/1663782/00/0000, dt.09-03-06 and it is valid upto March, 2007.

    The said vehicle was stolen on 10-09-06 and the complainant gave police complaint on 10-09-06 which was registered as crime No.578/06 under section 379 of IPC, the complainant also gave written representation to the RTA, Guntur on 21-09-06 about the theft of vehicle. The complainant informed the same to the opposite parties. Thereupon, the 1st opposite party obtained indemnity cum declaration undertaking on 05-12-06 from the complainant. Subsequently, the complainant used to attend 3rd opposite party for payment of insurance amount. But the 3rd opposite party did not choose to pay the cost of vehicle i.e., Rs.22,500/-.


    Thereupon the complainant gave representation to the opposite parties, but the opposite parties refused to pay the insured amount i.e., cost of the vehicle in the event of theft of vehicle. Due to nonpayment of vehicle cost, the complainant has to travel by other modes, due to which the complainant sustained huge loss. Hence, this complaint.

    The complainant claimed an amount of Rs.22,500/- for the loss of vehicle, Rs.12,000/- for loss of money by traveling in other modes, Rs.10,000/- for mental agony, Rs.500/- for postal and other expenses, Rs.3000/- for legal expenses, Rs.15,000/- for compensation. In all the complainant claimed an amount of Rs.63,000/-.

    The opposite parties 1 to 3 have filed their version denying the allegations made in the complaint.

    The brief facts of version of OPs 1 to 3 are as follows:

    The TVS XL Super vehicle bearing registration No.AP 7AJ 1285 was insured with this opposite party under two wheeler’s package policy vide policy No.3005/1665182/00/000 and the policy commences from 09-03-06 to 08-03-07.

    In the complaint filed by the complainant, there is no date of theft and time mentioned and the complaint is filed to claim the loss under various heads as if the complainant incurred loss claiming Rs.63,000/- and due to his negligence. The complaint is vague and this opposite party is not liable to pay compensation. The complainant stated in the complaint that the vehicle was stolen on 10-09-06 and gave police report on 10-09-06, but actually theft occurred on 06-08-06 at about 6.45 am in front of P.Prasad’s house at Chandramouli Nager, 3rd line, Guntur and the same was given by the complainant in writing to the opposite party. But the version of complainant is different as if the vehicle was stolen on 10-09-06. So this attitude of the complainant shows that in order to gain wrongful advantage from the opposite party this complaint is filed.

    The complainant is using the vehicle for transportation of goods which is not covered under the policy. The complainant violated the terms and conditions of the policy. There is delay of 34 days in giving FIR to the police and also till today no final report was filed by the police and the complainant using the vehicle for carrying milk i.e., transportation of goods, which is not covered in the policy and also left the vehicle on the road without locking and on this ground the claim was repudiated and the same was intimated to the complainant. The complainant without approaching the arbitrator filed this complaint before this Forum. Hence, the complaint is liable to be dismissed.

    The complainant and opposite parties have filed their respective affidavits in support of their contentions reiterating the facts.

    On behalf of complainant Ex.A1 to A7 are marked. Ex.A1 is the invoice under which the complainant purchased the vehicle. Ex.A2 is the two wheeler package policy. Ex.A3 is the FIR under section 379 IPC registered for the loss of vehicle of complainant. Ex.A4 is the referred notice of Pattabipuram Police. Ex.A5 is the letter by complainant to RTA, Guntur. Ex.A6 is the certificate of registration regarding the lost vehicle. Ex.A7 is the indemnity cum declaration undertaking given by the complainant.

    Now the points for consideration are that

    1. Whether there is any deficiency of service on the part of opposite parties?
    2. To what relief the complainant is entitled?

    POINT No.1

    It is the case of the complainant that he purchased two wheeler under Ex.A1 and insured the same under Ex.A2 and he lost the same on 10-09-06 and intimated the fact of loss of vehicle to the opposite parties and claimed insurance amount and that the opposite parties repudiated the claim on the ground that the vehicle was used for transportation of milk by the complainant and also on the ground that the complainant left the vehicle on the road without locking the same.

    The case of the opposite parties is also that the complainant used the vehicle for transportation of milk and the complainant left the vehicle on the road without locking the same.

    The complainant herein is the milk vendor. He used to sell milk by carrying it on his two wheeler from door to door for his livelihood. Therefore, it cannot be said that the vehicle is used for transportation. In case of theft of a vehicle the breach of condition is not germane. It is a well settled that in case of theft of insured vehicle, the nature of its use is not to be looked into and the insurer cannot repudiate the insured claim on that basis (vide 2008 CTJ 680 (SC) (CP) National Insurance Company Ltd. Vs. Nitin Khandelwal).

    It is practically not possible to lock the vehicle wherever it is stopped as the complainant is a milk vendor and using it for carrying the milk and that he has to stop his vehicle from door to door. In those circumstances, it is not practically possible to lock the vehicle while moving from door to door.

    The opposite parties in their version stated that the actual theft occurred on 06-08-06 at about 6.45 am in front of Mr.P.Prasad’s house at Chandramouli Nagar, 3rd line, Guntur and the same was given by the complainant in writing. The said written statement given by the complainant is not filed by the opposite parties. As seen from Ex.A3 (FIR) the vehicle was lost on 10-09-06 at about 6,45 am at Chandramouli Nagar, Guntur. Admittedly the insurance policy is from 09-03-06 to 08-03-07. The vehicle was lost on 10-09-06. Therefore, the repudiation of the claim of insured amount by the opposite parties is not justified and unreasonable. Hence, there is deficiency of service on the part of opposite parties in not settling the claim. Accordingly, this issue is answered in favour of the complainant.







    POINT No.2

    The complainant claimed an amount of Rs.63,000/- under various heads. We feel it just and reasonable to direct opposite parties to pay the insured amount of Rs.22,500/- to the complainant together with compensation of Rs.3000/- and legal expenses of Rs.1000/-. However, we decline to award other amounts for want of material on record.

    In the result, the complaint is allowed in part in terms as indicated below:

    1. The opposite parties 1 to 3 are directed to pay an amount of Rs.22,500/- to the complainant towards claim of the insurance for the lost vehicle.

    2. The opposite parties 1 to 3 are further directed to pay an amount of Rs.3000/- towards compensation and Rs.1000/- towards cost of litigation.

    3. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which they shall carry interest @ 9% p.a. till the date of realization.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    B.S.Dayananda S/o. B.Shankaralingegowda,

    Aged about 32 years, Complainant

    Resident of Byadagere, Kadaba hobli,

    Gubbi taluk, Tumkur district






    AND



    1. The Manager,

    ICICI Lamboard General Insurance Co.,

    Sudha Commercial complex, Opposite Parties

    Opposite coffee cafe day,

    Rajajinagar entrance,

    Dr.Rajkumar Road, Bangalore-10

    2. B.O., Prajapragathi Building,

    BH Road, Tumkur





    ORDER



    This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act for short)



    2. Through this complaint, the complainant prays for an order against the Opposite Parties (hereinafter called as the OPs for short) to pay him Rs.19, 51,738/- towards loss and damages to the vehicle and for mental agony caused to him due to the deficiency of service alongwith interest at 18% per annum from the date of the complaint till realization.

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

    It is contended that, the complainant is the registered owner of the vehicle TATA SK 1613 tipper bearing Reg.No.KA-06-A-8814. He had insured the vehicle under commercial vehicle package policy No.3008/1086777/00/000 with the OP. The policy was valid from 5-4-2006 to 4-4-2007.



    4. It is further contended that, the vehicle met with an accident on 30-9-2006 at about 9.30 PM near Sampige Railway gate, Sampige Railway Station. In the accident the vehicle was damaged and report was issued by the senior inspector of motor vehicles, RTO’s office. The claim form seeking replacement of complete cabin assemble was filed before the OP. The officials of the OP have visited the spot where the vehicle was parked and after inspection submitted their report regarding the damage. He approached Bellad Engineers Pvt. Ltd. Tumkur for repair and service of the vehicle. They estimated Rs.3, 03,265/- towards replacement and service.


    The OP was though legally bound to pay costs towards the replacement of cabin assemble under the policy, its surveyor issued a letter stating that only costs towards bare cabin assemble has been allowed for replacement without settling his claim. As per Section I-1(4) of standard form for commercial vehicles package police supply alongwith the certificate of insurance, the OP is liable to pay complete costs towards replacement as the vehicle was purchased within a period not exceeding six months for which nil depreciation is to be allowed.



    5. It is further contended that, in pursuance of the letter of the surveyor, the OP did not settle the claim. As the OP did not settle the claim within a reasonable time, he got issued legal notice on 28-11-2006 through the professional couriers. The OP received the said notice but remained silent without making any settlement of the claim.



    6. It is further contended that, the complainant filed a complaint in CC.No.34/2007 before this forum and it was disposed off with a direction to him to furnish information as required by the surveyor and a further direction to the company to settle the claim within 30 days from the date of order i.e. 9-4-2007.



    7. It is further contended that, the complainant submitted the required information through registered letter dated 16-4-2007. It was duly served on the OP on 19-4-2007, but the OP has not taken any steps to settle the claim. In the meanwhile, the authorised signatory of M/s. Bellad Engineering Works issued Tax-invoice and other bills amounting to Rs.3,62,008/-. The said tax invoice and bills were sent to the surveyor of the OP through a letter dated 17-1-2008, the same was served on the surveyor T.T.Ravishankar on 21-1-2008 but the OP remained silent. It is further contended that, the complainant personally approached and enquired the OP on several occasions but the OP did not take any steps to settle the claim of the complainant.


    As such the complainant filed another complaint before this forum in CC.No.186/2007 and after service of notice from this forum, the matter was disposed in terms of the joint memo. In the joint memo it was agreed to furnish information as required by the surveyor and the company shall have to settle the claim of the complaint within 30 days from the date on which the complainant furnishes the information vide order dated 9-4-2007.



    8. It is further contended that, the OP sent a cheque dated 27-5-2008 for Rs.1,70,270/- only though the complainant paid Rs.3,62,008/- without properly considering the tax invoice and bills. It is further contended that, the OP committed deficiency of service by causing delay in making payment that too a meager amount without considering the claim.



    9. It is further contended that, due to non-settlement of claim by the OP within a reasonable time, the complainant has been put to heavy loss and damages as the complainant was liable to pay Rs.23,000/- per month towards the EMI together with interest accrued on purchase of the vehicle from ING Vysya Bank, Rs.8000/- per month towards Driver’s and cleaner’s salary; Rs.2700 towards tax, Rs.1750/- per month towards insurance premium, and parking charges of Rs.4500/- per month towards (at the rate of 150/- per day) and loss of income to the tune of Rs.20, 000/- per month. Thereby, the complainant suffered total loss of Rs.60, 000/- per month. Since he has suffered heavy loss from 30-9-2006 to 27-5-2008 (nearly 21 months) it comes to more than Rs.12, 60,000/-. It is alleged that it was due to the delay and deficiency in service committed by the OP.



    10. It is further contended that, the OP is liable to pay Rs.2,91,738/- (Rs.3,62,008/- - Rs.1,70,270) towards spare parts, labour and service charges, Rs.12, 60,000/- towards loss and damages and Rs.4, 00,000/- towards the mental agony caused to the complainant amounting to Rs.19,51,738/- together with interest at 18% from the date of the complaint till the realisation as the OP as committed deficiency in service. Hence, this complaint.



    11. Among the OPs who have been notified of the complaint, the 1st OP put in his appearance through his counsel and resisted the same. The 2nd OP has failed to appear before the forum and hence he is placed exparte.



    12. The gist of the objections is as follows:

    The 1st OP in his objections, while emphatically denying the complaint averments as false and untenable, interalia pleaded that, the address of the OP given in the cause title is wrong as it is having its office in No.89, SVR complex, II floor, Hosur Road, Bangalore. It is contended that, the estimation given by Bellad engineers Pvt. Ltd is false and exaggerated. Unless the vehicle is dismantled such estimation cannot be given/assessed by the said company. Only the surveyor/valuer has seen the vehicle and he is an independent body and not officials of the OP.



    13. It is contended that, this OP since paid Rs.1,70,270/- through cheque, has not committed any deficiency in service. There is no cause of action for this petition. This petition is not maintainable in law and also not in time. The matter has been disposed off finally on 20-9-07 and the complainant cannot maintain this petition.



    14. It is further submitted that, this OP has paid the amount entitled by the complainant and is not liable to pay any amount as claimed in the petition. This forum has no jurisdiction to entertain this petition. This OP is not liable to pay the amount of Rs.19,51,738/- claimed in the petition.



    15. It is further submitted, the complainant is non co-operative to settle the claim since the beginning. He has not submitted the claim form and not allowed the surveyors of the OPO to inspect the vehicle at the appropriate times and has not informed them well in time. This Hon’ble forum had pointed out this fact in CC.34/2007 and in CC.186/2007.


    The joint memo filed on 20-9-07 in CC.186/07 clearly established that as on that date, no claim form was submitted by the complainant. In fact when the surveyor inspected the vehicle in the presence of the complainant, he was not prepared to co-operate with the surveyor’s work. The complainant has not acted in terms of the joint memo filed. The OP has received the report of the surveyor and immediately made payment of the amount entitled to by the complainant through a cheque. The complainant has not approached this forum with clean hands. Accordingly, he prays for dismissal of the complaint with costs.



    16. In support of the case, the complainant and 1st OP have filed affidavits and pressed into service of several documents. The documents produced by the OP and the complainant came to be marked as Ex.R-1 to R-8 and Ex-C-1 to C-20. We have heard the learned counsels appearing for the parties. We have also examined the material available on records



    17. The questions that arise for our considerations are:

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

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



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

    Point No.1: Yes

    Point No.2: As per order



    REASONS



    19. At the very threshold, we must point out that, this is a third complaint filed by the complainant claiming damages from the OP. The first complaint was registered as CC.No.34/2007 and it came to be disposed on 9th April 2007 with the following order;

    “The complaint is closed with the following conditions. The complainant shall furnish the information as required by the surveyor for submitting his final report to the company. The company shall settle the claim of the complainant in terms of the conditions of the policy within 30 days from date on which the complainant furnishes the information. Liberty is given to the complainant for approaching this forum in case the OP Company fails to settle his claim as stated above. The complainant shall bear his own costs”.



    20. The second complaint No.CC.No.186/2007 came to be disposed off as per the joint memo at Ex.R-6. It reads as thus:
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    B.S.Dayananda S/o. B.Shankaralingegowda,

    Aged about 32 years, Complainant

    Resident of Byadagere, Kadaba hobli,

    Gubbi taluk, Tumkur district







    AND



    1. The Manager,

    ICICI Lamboard General Insurance Co.,

    Sudha Commercial complex, Opposite Parties

    Opposite coffee cafe day,

    Rajajinagar entrance,

    Dr.Rajkumar Road, Bangalore-10

    2. B.O., Prajapragathi Building,

    BH Road, Tumkur




    ORDER






    2. Through this complaint, the complainant prays for an order against the Opposite Parties (hereinafter called as the OPs for short) to pay him Rs.19, 51,738/- towards loss and damages to the vehicle and for mental agony caused to him due to the deficiency of service alongwith interest at 18% per annum from the date of the complaint till realization.

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

    It is contended that, the complainant is the registered owner of the vehicle TATA SK 1613 tipper bearing Reg.No.KA-06-A-8814. He had insured the vehicle under commercial vehicle package policy No.3008/1086777/00/000 with the OP. The policy was valid from 5-4-2006 to 4-4-2007.



    4. It is further contended that, the vehicle met with an accident on 30-9-2006 at about 9.30 PM near Sampige Railway gate, Sampige Railway Station. In the accident the vehicle was damaged and report was issued by the senior inspector of motor vehicles, RTO’s office. The claim form seeking replacement of complete cabin assemble was filed before the OP. The officials of the OP have visited the spot where the vehicle was parked and after inspection submitted their report regarding the damage. He approached Bellad Engineers Pvt. Ltd. Tumkur for repair and service of the vehicle. They estimated Rs.3, 03,265/- towards replacement and service.


    The OP was though legally bound to pay costs towards the replacement of cabin assemble under the policy, its surveyor issued a letter stating that only costs towards bare cabin assemble has been allowed for replacement without settling his claim. As per Section I-1(4) of standard form for commercial vehicles package police supply alongwith the certificate of insurance, the OP is liable to pay complete costs towards replacement as the vehicle was purchased within a period not exceeding six months for which nil depreciation is to be allowed.



    5. It is further contended that, in pursuance of the letter of the surveyor, the OP did not settle the claim. As the OP did not settle the claim within a reasonable time, he got issued legal notice on 28-11-2006 through the professional couriers. The OP received the said notice but remained silent without making any settlement of the claim.



    6. It is further contended that, the complainant filed a complaint in CC.No.34/2007 before this forum and it was disposed off with a direction to him to furnish information as required by the surveyor and a further direction to the company to settle the claim within 30 days from the date of order i.e. 9-4-2007.



    7. It is further contended that, the complainant submitted the required information through registered letter dated 16-4-2007. It was duly served on the OP on 19-4-2007, but the OP has not taken any steps to settle the claim. In the meanwhile, the authorised signatory of M/s. Bellad Engineering Works issued Tax-invoice and other bills amounting to Rs.3,62,008/-. The said tax invoice and bills were sent to the surveyor of the OP through a letter dated 17-1-2008, the same was served on the surveyor T.T.Ravishankar on 21-1-2008 but the OP remained silent. It is further contended that, the complainant personally approached and enquired the OP on several occasions but the OP did not take any steps to settle the claim of the complainant. As such the complainant filed another complaint before this forum in CC.No.186/2007 and after service of notice from this forum, the matter was disposed in terms of the joint memo. In the joint memo it was agreed to furnish information as required by the surveyor and the company shall have to settle the claim of the complaint within 30 days from the date on which the complainant furnishes the information vide order dated 9-4-2007.



    8. It is further contended that, the OP sent a cheque dated 27-5-2008 for Rs.1,70,270/- only though the complainant paid Rs.3,62,008/- without properly considering the tax invoice and bills. It is further contended that, the OP committed deficiency of service by causing delay in making payment that too a meager amount without considering the claim.



    9. It is further contended that, due to non-settlement of claim by the OP within a reasonable time, the complainant has been put to heavy loss and damages as the complainant was liable to pay Rs.23,000/- per month towards the EMI together with interest accrued on purchase of the vehicle from ING Vysya Bank, Rs.8000/- per month towards Driver’s and cleaner’s salary; Rs.2700 towards tax, Rs.1750/- per month towards insurance premium, and parking charges of Rs.4500/- per month towards (at the rate of 150/- per day) and loss of income to the tune of Rs.20, 000/- per month. Thereby, the complainant suffered total loss of Rs.60, 000/- per month. Since he has suffered heavy loss from 30-9-2006 to 27-5-2008 (nearly 21 months) it comes to more than Rs.12, 60,000/-. It is alleged that it was due to the delay and deficiency in service committed by the OP.



    10. It is further contended that, the OP is liable to pay Rs.2,91,738/- (Rs.3,62,008/- - Rs.1,70,270) towards spare parts, labour and service charges, Rs.12, 60,000/- towards loss and damages and Rs.4, 00,000/- towards the mental agony caused to the complainant amounting to Rs.19,51,738/- together with interest at 18% from the date of the complaint till the realisation as the OP as committed deficiency in service. Hence, this complaint.



    11. Among the OPs who have been notified of the complaint, the 1st OP put in his appearance through his counsel and resisted the same. The 2nd OP has failed to appear before the forum and hence he is placed exparte.



    12. The gist of the objections is as follows:

    The 1st OP in his objections, while emphatically denying the complaint averments as false and untenable, interalia pleaded that, the address of the OP given in the cause title is wrong as it is having its office in No.89, SVR complex, II floor, Hosur Road, Bangalore. It is contended that, the estimation given by Bellad engineers Pvt. Ltd is false and exaggerated. Unless the vehicle is dismantled such estimation cannot be given/assessed by the said company. Only the surveyor/valuer has seen the vehicle and he is an independent body and not officials of the OP.



    13. It is contended that, this OP since paid Rs.1,70,270/- through cheque, has not committed any deficiency in service. There is no cause of action for this petition. This petition is not maintainable in law and also not in time. The matter has been disposed off finally on 20-9-07 and the complainant cannot maintain this petition.



    14. It is further submitted that, this OP has paid the amount entitled by the complainant and is not liable to pay any amount as claimed in the petition. This forum has no jurisdiction to entertain this petition. This OP is not liable to pay the amount of Rs.19,51,738/- claimed in the petition.



    15. It is further submitted, the complainant is non co-operative to settle the claim since the beginning. He has not submitted the claim form and not allowed the surveyors of the OPO to inspect the vehicle at the appropriate times and has not informed them well in time. This Hon’ble forum had pointed out this fact in CC.34/2007 and in CC.186/2007. The joint memo filed on 20-9-07 in CC.186/07 clearly established that as on that date, no claim form was submitted by the complainant. In fact when the surveyor inspected the vehicle in the presence of the complainant, he was not prepared to co-operate with the surveyor’s work. The complainant has not acted in terms of the joint memo filed. The OP has received the report of the surveyor and immediately made payment of the amount entitled to by the complainant through a cheque. The complainant has not approached this forum with clean hands. Accordingly, he prays for dismissal of the complaint with costs.



    16. In support of the case, the complainant and 1st OP have filed affidavits and pressed into service of several documents. The documents produced by the OP and the complainant came to be marked as Ex.R-1 to R-8 and Ex-C-1 to C-20. We have heard the learned counsels appearing for the parties. We have also examined the material available on records



    17. The questions that arise for our considerations are:

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

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



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

    Point No.1: Yes

    Point No.2: As per order



    REASONS



    19. At the very threshold, we must point out that, this is a third complaint filed by the complainant claiming damages from the OP. The first complaint was registered as CC.No.34/2007 and it came to be disposed on 9th April 2007 with the following order;

    “The complaint is closed with the following conditions. The complainant shall furnish the information as required by the surveyor for submitting his final report to the company. The company shall settle the claim of the complainant in terms of the conditions of the policy within 30 days from date on which the complainant furnishes the information. Liberty is given to the complainant for approaching this forum in case the OP Company fails to settle his claim as stated above. The complainant shall bear his own costs”.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Manjit Kaur wife of Shri Labh Singh resident of H. No.22, Rose Enclave, near Forest Office, Ferozepur Road, Ludhiana.

    (Complainant

    Vs.



    1. ICICI Lombard General Insurance Company Limited, 108, Surya Tower, 7th Floor, Space No.4, The Mall, Ludhiana through its authorised signatory/Branch Manager.



    2. Authorised signatory/Branch Manager of ICICI Lombard General Insurance Company Limited, 108, Surya Tower, 7th Floor, Space No.4, The Mall, Ludhiana.



    3. ICICI Lombard General Insurance Company Limited, ICICI Bank Tower, Bandra Kurla Complex, Mumbai through its Regional Manager.

    (Opposite parties)







    O R D E R




    1. Complainant being owner of Tata Indica car bearing registration number PB-10-CC-0959 got it insured vide cover note no.PD-3337017 (policy no.3001/50645940/00/001) valid from 5.11.2006 to 4.11.2007 with OP 1-Insurance Company. On 20.9.2007, son of the complainant Sh. Iqbal Singh on the car dropped his sister Smt. Parminder Kaur Grewal in the house of her in-laws near Jodhewal, Ludhiana, who is now permanently settled in Canada. When returning at midnight after dropping his sister, the car struck against the four wheeler Tata Tempo going ahead the car. This happened as suddenly two persons crossed in front of the tempo and to save those persons tempo driver immediately applied brake and car driven by son of the complainant going behind struck back side of the tempo. Due to impact of collision, front portion of the car was damaged badly.


    Driver of the tempo ran away along with tempo taking benefit of darkness in order to avoid his liability. He consequently also failed to notice registration number of the tempo. Accident was reported to the police by lodging DDR no.7 dated 20.9.2007 in Police Station, Jodhewal and on 21.9.2007 opposite party no.1 was also informed. Thereafter all requisite documents necessary to support damage claim were provided to the opposite party. But they wrongfully and illegally repudiated the claim vide letter dated 8.10.2007, mentioning wrongly that the vehicle was being used for commercial purpose. Whereas, it was never used for commercial purpose. After accident, the vehicle is lying with Garyson Motors, Ludhiana for repair, who had estimated the loss at more than Rs.1,00,000/-.


    The vehicle had run only 7000 to 7500 Kms. during the last 10 months and it was never used as taxi for commercial purpose with M/s Prabhjot Taxi Service. On account of repudiation of the claim, complainant suffered monetary loss, causing harassment due to such deficiency in service on the part of opposite party. Therefore, by filing the present complaint under section 12 of the Consumer Protection Act, 1986 has claimed damages of Rs.1,00,000/- suffered by the car and Rs.5000/- compensation for mental and physical torture.

    2. Opposite party in reply conceded insuring the vehicle of the complainant as private car, lodging claim under the policy. But claimed that the claim was entertained, processed, and investigated by appointing Sh. A.P. Singh of Mohali as investigator who after investigation submitted the report that the vehicle at the time of accident was used as taxi. Investigator has also made video recording of the insured and after applying mind to report of the investigator, the claim was rightfully and legally repudiated. Because, complainant had infringed insurance policy by using the car for commercial purpose.


    Consequently, this Fora has no jurisdiction to entertain the complaint which is not maintainable. Sh. R.P. Bhasin Surveyor and Loss Assessor was also engaged to assess the loss caused to the vehicle. But the vehicle has not been repaired at authorised service station. Consequently, there is no deficiency in service on their part. It is denied that the vehicle had met with an accident on 20.9.2007 during midnight when it hit backside of the four wheeler Tata Tempo. Rest of the allegations of the complainant have also been controverted.

    3. Both the parties adduced their evidence by way of affidavits and documents in sup-port of their respective contentions.

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

    5. In this case after lodging of claim by the complainant, opposite party availed services of surveyor Sh. R.P. Bhasin and Company, who furnished the report Ex.R.10. Also they had engaged investigator Sh. A.P. Singh to investigate the claim of the complainant who had filed his report Ex.R.4. To prove the report Ex.R.4, affidavit Ex.RW3/A of Sh. A.P. Singh is relied. Similarly in support of surveyor report Ex.R.10, affidavit Ex. RW2/A is filed by the opposite party.

    6. In these circumstances, it was argued on behalf of the complainant that opposite party by appointing surveyor and investigator separately acted against the law and consequently on report of investigator the claim can not be rejected. Because, there was no necessity to appoint the investigator. In support case reported as 2000 (2) CPC 715, titled as National Insurance Company Limited & Anr. Vs. Munni Lal Yadav (Hon’ble Uttar Pradesh State Consumer Disputes Redressal Commission, Lukhnow) was referred. Hon’ble State Commission in that case concluded that when surveyor had already been appointed, there was no necessity to engage any investigator. So, refused to rely on such report. But the Hon’ble State Commission did not rely on the report of the investigator because same was not supported by any evidence on record. There was mere statement of the investigator in the report unsupported by affidavit of the persons on whose statement this report was prepared.

    7. But with due respect to the Hon’ble Uttar Pradesh State Commission, we venture to state that there is no prohibition for the insurance company to engage a separate surveyor and also investigator to investigate the claim lodged by the insurer. Because job of valuer and loss assessor is to assess the loss whereas investigator is engaged to investigate the claim or facts leading to the claim.

    8. Hon’ble National Commission in case titled as Durga Enterprises Vs. Oriental Insurance Co. Ltd. reported in IV (2008) CPJ 128 (NC) has held that once insurer prima facie is of the view that wrong/unsubstantiated claim is preferred, then insured would be within its right to appoint an investigator. This authority lend credence to the conclusion that insurer is competent to engage investigator and if services of such investigator is availed by the insurer, they commit no illegality. Therefore, we do not agree with contention of the complainant that report of the investigator can not be looked into, as there was no necessity to appoint investigator.

    9. Report Ex.R.4 of the investigator show that the vehicle actually had met with an accident earlier on 19.9.2007 at Murthal when the same was hired from the complainant by one Sandeep. Said Sandeep has confirmed to investigator Sh. A.P. Singh that the vehicle of the complainant was hired by him through M/s Prabhjot Taxi Service from Ludhiana to Delhi and at Murthal had met with an accident, when struck against the truck parked on the road side at Murthal. Thereupon, the investigator contacted P.S. Murthal where no report was lodged qua this accident, but it was confirmed to him by owner of Sukhdev Dhaba qua accident in which none had received injury. No report qua accident was lodged. But highway police had noted down number of the vehicle as well as mobile number of one occupant Sandeep of Ludhiana, who had hired the vehicle.


    Those particulars were recorded by the police in their record roughly as occupants of the vehicle were not interested for police report. Then from high way police, mobile number was taken and on that mobile contacted the person who came to be Sandeep. Then reached Sandeep who told hiring of the vehicle through M/s Prabhjot Taxi service but Sandeep refused to give statement qua which had prepared CD Ex.R.18. In support of report of Sh. A.P. Singh investigator, affidavit Ex.RW C/A is relied. Said Sandeep in support of the report of investigator is not examined as he was not willing to appear as a witness.

    10. Complainant in order to belie the report of investigator has filed affidavit Ex.CW3 of Sh. Hardeep Singh prop. of M/s Prabhjot Taxi Service that the vehicle of the complainant is never plied as a taxi with his firm nor it was ever hired by Sh. Sandeep. In addition to it, complainant has filed her own affidavit Ex.CW1 in support of the claim and affidavit Ex. CW2 of Sh.Iqbal Singh son of the complainant that the vehicle had met with an accident on 20.9.2007 at Ludhiana.

    11. Of course, complainant has placed on the record Ex.C.4 copy of the DDR dated 20.9.2007 about the accident. But as per claim or allegations of the complainant the car hit from back, four wheeler Tata Tempo, when it suddenly stopped. Car was badly damaged from front portion, damaging its bonnet, window , front mirror, radiator and engine etc. The impact of collision could have been with force when the speeding car suddenly hit back of four wheeler. Certainly in such scenario the four wheeler must have been damaged substantially, as front portion of the car as per allegations was totally smashed and damaged. Therefore, in such sequence of events, it appears doubtful that the tempo would have escaped or driven after such major accident by its driver, not affording opportunity to driver of the car, for noting its number.


    Such aspects coupled with report Ex.R.4 of the investigator that the vehicle had met with an accident at Murthal on 4.9.2007 when hit a stationery truck,can not be ignored. This also means and suggest that when the said vehicle on 4.9.2007 met with an accident, it was hired by one Sandeep from M/s Prabhjot Taxi Service. Though proprietor of that taxi service denied the same. So, serious doubt regarding authenticity of the claim is created.

    12. Doubt so generated on the record regarding place of accident and its manner need detailed probe and investigation, which is not possible in summary enquiry like this. Because, it was during that accident on 4.9.2007 that the vehicle is stated to be used as taxi for hire and reward purpose. Though insurance policy Ex.CW3 of the vehicle was for use of personal vehicle.

    13. Where the vehicle insured for personal use, but was being used as taxi, insurance company would not be liable to pay any compensation. In support, we refer ourselves to cases titled as National Insurance Company Ltd. Vs. Meena Aggarwal reported in 2009 (1) RCR (Civil) page 877 (Supreme Court); Joginder Singh Vs. Oriental Insurance Company Ltd. reported in IV (2008) CPJ 240 (NC) and Jagdeesh Singh Vs. United India Insurance Co. Ltd. III (2007) CPJ 160 (NC).

    14. As allegations of the opposite party that complainant changed time and date of accident to sustain the claim, deserve to be probed in depth, which require recording of detailed evidence , affording chance of cross-examination to the parties. Because such allegations have nexus with plying of the vehicle for hire and reward purpose at the time of such accident in violation of insurance policy.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Jasvir Singh son of Sh. Gurdial Singh, resident of village Sujjanpur, Tehsil Jagraon, District Ludhiana.



    …..Complainant.

    Versus



    1- ICICI Lombard General Insurance Company Limited, Space No.1, 5th Surya Towers, 108, The Mall, Ludhiana, through its Manager.

    2- ICICI Lombard General Insurance Company Limited, 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. …..Opposite party.






    O R D E R






    1- Complainant vide cover note no.52920806 dated 22.11.2007, got his Toyota Innova car bearing no.PB-10CA-0267, insured with opposite party. The vehicle on 13.7.2008, met with an accident in District Sonipat, Haryana qua which, DDR No.22 dated 14.7.2008 was registered in P.S. Rai, District Sonipat. Qua damage of the vehicle, claim was lodged with opposite party and submitted necessary proof, documents, vouchers, but despite it, opposite party vide letter dated 29.8.2008 repudiated the claim, on the ground that vehicle in question was used for hire and reward. By filing this complaint u/s 12 of the Consumer Protection Act, 1986, complainant claimed that repudiation is arbitrary, wrong, null and void, as he never used his vehicle for hire and reward. Therefore, claimed compensation of Rs.5 lacs being value of the vehicle, Rs.50,000/- as compensation for deficiency in service and Rs.10000/- litigation expenses.

    2- Opposite parties no.1 & 2 in reply, admitted insuring vehicle of the complainant and lodging insurance claim qua damage, repudiating the same. But they pleaded that complainant had obtained insurance coverage of his car, as private car. Whereas, he was plying the same for commercial purpose. Hence, claim was rightfully repudiated. Further averred that on receipt of claim application, the same was investigated, by engaging an investigator, who after inquiry, reported that vehicle was being used for taxi purpose. Hence, complainant violated terms and conditions of the insurance policy. Therefore, claim not payable.

    3- Opposite party no.3 did not contest the complaint and as such, is being proceeded exparte.

    4- Contesting parties, in support of their respective claims, adduced evidence by way of affidavits and documents.

    5- We heard ld. counsel for parties and minutely scanned entire material placed on file.

    6- Certain admitted aspects need not be highlighted, to burden the record. Suffice to say that vehicle of the complainant, was insured vide cover note Ex.C2 from 22.12.2007 to 21.11.2008, with opposite party. After the vehicle was damaged in an accident, regarding which DDR no.22 dated 14.7.2008, was recorded in P.S. Rai (Ex.C1), complainant lodged damage claim with the opposite party. Opposite party vide repudiation letter Ex.C7 dated 29th August, 2008, intimated complainant that the vehicle was plied for hire and reward, which is exclusion as per policy terms and conditions. Therefore, claim not payable. This repudiation was done, on the strength of report Ex.R2 of Sh. Sachin Gulati, Investigator, engaged by the opposite party.

    7- It is, as such, apparent that opposite party got strength, to repudiate claim of the complainant, on the basis of report Ex.R2 of investigator Sh. Sachin Gulati. But affidavit of Mr. Gulati is not filed, to prove the report. Neither any material or evidence has been brought on record, to sustain allegations of Mr. Gulati, contained in his report Ex.R2 that the vehicle, in violation of the policy, was used for hire and reward. The conclusion of Mr. Gulati was whimsical, un-supported with any evidence. As per his report, had inter-action with some people of village Sujjanpur, out of which, one was Mr. Jasvir Singh, who confirmed that insured Jasvir Singh was having three vehicles, which he had been using for commercial usage. He had been using those vehicles from taxi stand, Hansa, located at a distance of two kilometers from his village. Neither the report is accompanied with statement of such person named Jasvir Singh or any other co-villager of the complainant.

    8- Further reported by investigator that he visited taxi stand, Hansa, contacted some drivers, but they refused to provide any clue regarding the insured vehicle of the complainant. He on the strength that vehicle had travelled 1,50,000 kms., concluded that it was impossible for an owner of a private vehicle, to run the same 7500 kms. per month. So, concluded that vehicle must have been used as taxi on hire and reward basis. Such was inferred by the investigator, without any proof.

    9- In these circumstances, there is nothing on the record, to substantiate conclusion of opposite party that the vehicle though insured as private vehicle, in violation of the policy, was being operated and run on hire and reward basis. There being no proof on the same, so such conclusion appears to be apparently false and wrong.

    10- As a result, opposite party would be liable, to honour the insurance policy and compensate the complainant, for the loss or damage suffered by his vehicle in the accident.

    11- Opposite party had also engaged Sh. Suneet Jain, surveyor and loss assessor, who had submitted report Ex.R1. He vide that report, assessed net loss of Rs.87,300/- to the vehicle of the complainant. Be it stated that report of loss assessor, is a valuable document, help of which can be taken, to ascertain the damage suffered by the insured. Reference made to Prithvi Raj Vs Oriental Insurance Company Limited II (2005) CPJ-69(NC).
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Satinder Singh Sobti Prop. M/s.Isher Singh Sobti & Sons Filling Station Ladhowal NH-I,Ludhiana.

    ….Complainant.

    Versus



    1- The ICICI Lombard General Insurance Company Limited, 3rd Floor, Kunal Tower 88, The Mall, Ludhiana-141001 Tel.0161-4649120/22, Fax. 0161-4649121 (through Manager).

    2- ICICI Lombard General Insurance Company, Correspondence Address (Head Office) Zenith House, Keshav Rao Khade Marg, Opp. Race Course, Mahalakshmi, Mumbai-400034.

    Tel:022-24924100, Fax-022-24927624 ….Opposite parties.







    O R D E R







    1- Complainant being owner of a filling station in the name and style of “M/s.Isher Singh Sobti & Sons, Ladhowal”, Ludhiana, got his petrol station insured vide policy No. 4017/0003372 from the Ops. He consequently, got insured all kinds of losses, such as:

    1. (a) Whole cash

    (b) Burglary

    (c) Cash in hand

    (d) Cash in transit

    (e) Safe.

    2. Fire

    3. Earthquake

    4. Personal accident and

    5. Terrorism.



    So, consequently, got insured petrol station for Rs.4200000/-. The policy was provided to him after four months ie. in Nov,2006 after his repeated requests. During continuace of insurance policy, burglary was committed on 02.06.2007 qua which FIR was lodged, there was total loss of Rs.41912/- cash and Rs.5000/- due to damage to cash counter and the same being its costs. Claim lodged, which was declined as ‘no claim’ vide letter dated 11.10.2007. Hence assailed it to be deficiency in service on the part of Ops, filed this complaint under section 12 of the consumer Protection Act, 1986 to compensate his loss with interest and costs.

    2. In reply admitted obtaining insurance coverage qua his petrol station by the complainant, and lodging theft claim under the policy. But averred that the claim was entertained, processed and investigated. M/s. Cunningham Lindsey International Private Limited, was appointed investigator to investigate the factum of burglary of cash of Rs.41912/- allegedly stolen from filling station cash counter. But no claim for the cost of the counter was ever lodged. After investigation, investigator submitted report on 3.08.2007 and after scrutinizing the record and documents, the claim was rightly, legally repudiated vide letter dated 06.08.2007. Because the policy only covered ‘cash in safe only’. So, whereas alleged cash was taken from the wooden cash counter which was not covered in the policy. Because cash in the counter cannot be treated as ‘cash in safe’. Therefore, there is no negligence or deficiency in service on their part.

    3. Both the parties led their respective evidence. Complainant in person and counsel for Ops heard.

    4. In the instant case, only dispute to settle the matter corner around interpretations of terms and conditions of insurance policy. Complainant has placed on record mark A & B of the Insurance Cover. Whereas, Ops have also placed the insurance cover Ex.R1 and terms and conditions of the policy Ex.R2. Henceforth, we would refer only documents Ex.R1 and Ex.R2, pertaining to insurance of petrol pump of the complainant. As per cover of Insurance Ex.R1, the risk stand covered under the insurance policy as under:

    a) Fire

    b) Cash in Safe

    c) Cash in Transit

    d) Personal Accident

    e) Earthquake

    f) Fire and Earthquake and

    g) Terrorism Cover



    5. So, under the policy ‘Cash in safe’ (emphasis laid) and cash in transit to the tune of Rs.4 lac each was insured under the policy. Consequently, question is whether alleged theft of the cash took place from the safe or not. Because plea of the OP is that no theft of cash had taken place from safe, it was committted from cash counter of petrol station, so loss from the counter was not covered under the policy.

    6. Circumstances under which theft occured and the place of theft found mentioned in letter Annexure ‘C; dated 24.07.2007 of the complainant, to the claim department of Ops. It was under the letter that he lodged insurance claim. This letter contains admission of the complaint as under;

    “(c) Cash in transit

    Burglars had taken away the cash counter which was placed in locked room. Ultimately that cash had to shift either to main safe or to Bank directly. Main safe keys are always kept safe custody are not available with sale man. That is why whole day sale was saved and only few hours cash after 10 PM was lost.

    Safe pouring is not done rupee by rupee or after every minute; but after some collection or sometime (specially during night hours) cash is dropped in safe. So the stolen cash was transit cash and was also kept in safe custody”.



    7) So, while alleging claim under the policy complainant clearly stated that the cash was kept in counter placed in the locked room. Cash from the counter was to be shifted either to main safe or to bank directly. Keys of main safe were kept in safe counter and not given to the salesman. So it means that there was a safe in the petrol pump for keeping cash. But the sales cash was not kept in that safe. Rather it was kept in cash counter.


    There was no insurance coverage taken by the complainant for any amount retained or kept in cash counter of the petrol pump. Ex.R2 in part-3 titled “Cash in safe” contitute terms and conditions. Under such terms insurance company was mainly liable in respect of loss of money by burglary and/or attempted burglary and or valuables contained in a domestic safe or vault which is protected by appropriate security measures with lock and key. Whereas in the instant case the money was stolen from the cash counter and not from safe. Therefore it is apperent that there is no insurance coverage to cash of the complainanat, kept in cash counter.

    8. In similar circumstances like this, Hon’ble National Commission in National Insurance Company Vs. Ram Kumar Aggarwal of 2002(3) CLT page 395 (NC) has held that where money is kept in the drawer of the almirah, as against stipulation in the policy to be kept in a strong room, the claim would not be covered under the policy. Similarly, in the instant case, cash was not kept in the cash chest, but in the counter and there was no insurance coverage for the cash counter.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Chatarpal Sharma son of Sh.Babu Lal, resident of 2044, Urban Vihar, Jawadi, Ludhiana.

    (Complainant)

    Vs.



    1. Bajaj Allianz General Insurance Company Ltd. Head Office Pune, through its General Manager/M.D.



    2. Bajaj Allianz General Insurance Company Ltd. Area Office, SCO147, Feroze Gandhi Market, Ludhiana through its Branch Manager.

    (Opposite parties)







    O R D E R



    1. This order shall dispose off an application moved by the opposite party for dismissal of the complaint on the ground of limitation.

    2. We have heard ld. counsel for the parties on this application and also perused the record.

    3. Complainant in auction conducted by opposite party on 11.4.2006 purchased a Maruti Zen Car for Rs. 2,20,000/-, which amount he immediately deposited with the opposite party. At the time of sale, opposite party assured the complainant to deliver him documents of the vehicle regarding ownership within few days, so that complainant may get the vehicle registered in his name. Thereafter, several times approached the opposite party with request to deliver the documents to which they paid no heed and ultimately refused to deliver such documents. Then he served legal notice dated 6.1.2009 but despite it they failed to deliver the documents to the complainant.

    4. It is as such apparent from the pleadings of the complainant that the vehicle was purchased on 11.4.2006 and opposite party had promised to handover documents pertaining to ownership within few days. It means, cause of action accrued to the complainant in April 2006 and within few days thereof when ownership documents were to be given to him. But they despite his attempts failed to provide him documents. As per pleadings, they refused to deliver the documents and then served legal notice dated 6.1.2009. As such, cause of action had commenced to the complainant on 11.4.2008 and within few days thereafter.


    But this complaint was instituted on 27.2.2009 i.e. after three years of the purchase. Whereas this Forum has jurisdiction to entertain the complaint within two years from the date of cause of action. No reasons have been given to explain the delay. Neither any prayer is made to condone the delay in filing the complaint.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Harjinder Kaur aged 47 years wife of Sh. Avtar Singh, resident of Kothe Sobha Singh, Ludhiana Road, Ward No.1, VPO Raikot, District Ludhiana.

    …..Complainant.

    Versus





    1- Med Save Global Health Care Company Group, Med Save Health Care Limited, (Regd. and Corporate Office), F-701-A, Ladey Sarai, Behind Gold Ground Delhi, through its Managing Director.

    2- Med Save Global Health Care Company Group, Med Save Health Care Limited, Branch Office: SCO-121,22, Ist Floor, Sector 34-A, Chandigarh, through its Director.

    3- Sanjivni Health Care Scheme, C/o Med Save Health Care Limited, (Regd. and Corporate Office), F-701-A, Ladey Sarai, Behind Gold Ground Delhi, through its Managing Director.

    4- The Raikot Cooperative Agricultural Service Society Limited, through its Secretary (Concerned with Sanjivni Health Care Scheme/Sanjivni Trust) Raikot, District Ludhiana.

    5- Deep Hospital, 481, Model Town, Ludhiana, through its Proprietor Baldip Singh.

    6- Registrar Deputy Chairman, Cooperative Societies, Punjab, Chandigarh.

    7- ICICI Lombard General Insurance Company Limited, Feroze Gandhi Market, Ludhiana.

    8- ICICI Lombard General Insurance Company Limited, Mumbai.

    …..Opposite parties.








    O R D E R









    1- Case of the complainant in this complaint u/s 12 of the Consumer Protection Act, 1986, is that her husband Sh. Avtar Singh being member of Raikot Cooperative Agricultural Society(opposite party no.4), had account no.5/707 with them. Being member of the society, having account, her husband alongwith family members, was covered under Sanjivni Health Care Scheme of opposite parties no.1 to 3. Under that scheme, members of the society and their family were automatically covered under Sanjivni Health Care Scheme and thereunder, complainant was fully covered under the health scheme. Complainant suffered ailment, got admitted in Deep Hospital (Opposite party no.5), who intimated that they were on list of panel hospitals of Sanjivni Health Care Scheme. She was operated and spent Rs.95,800/- for treatment which was payable by opposite party no.1 to 4 under the Sanjivni Health Care Scheme.


    Pre-authorization form for such purpose, was also filled. But it was not done and compelled to pay bill of hospital. Opposite party no.5, as such, were deficient in taking payment from her, despite the fact that was entitled for free treatment. Claiming it to be deficiency in service on part of opposite parties, sought payment of Rs.1 lac amount spent on treatment and given to opposite party no.5 hospital and also Rs.1 lac compensation for harassment and torture.



    2- Sanjivni Trust opposite party no.3, in reply claimed that complaint is not maintainable, is based on false and frivolous allegations and does not disclose any cause of action against them. Averred that Sanjivni Trust is a confirming party to agreement signed between Med Save Health Care(Opposite party no.2), to operate and implement the scheme. Scheme has been out-sourced and the insurance company (ICICI Lombard General Ins. Co. Ltd.) is responsible for payment of claim to the beneficiaries. So, Sanjivni Trust can not be made responsible for any deficiency in service. Their role is confined to ensure obtaining minimum rate of premium to be paid by the beneficiaries to the insurance company. The same was ensured by the Sanjivni Trust. So, they are not negligent in rendering services.

    3- Opposite party no.4- The Raikot Cooperative Agricultural Service Society Limited, in separate reply, also took objection qua maintainability, mis-joinder of parties. They averred that Punjab Govt. through department of Cooperative Societies, launched a scheme “Sanjivni Health Care Scheme”, for welfare of the members of the cooperative societies and their dependants. Under the scheme, members of the society and their family, were made eligible to become part of the scheme, by paying nominal amount.


    The insurance coverage qua treatment in various recognized hospitals, under the scheme, is to be provided by ICICI Lombard Insurance Company (opposite parties no.7 & 8). So, insurance company is liable, to reimburse expenses, if any, incurred by the complainant. There is no deficiency in service on their part. It is admitted that husband of complainant, is member of the society and insured under the scheme. Rest of the allegations is denied.

    4- Opposite parties no.7 & 8-ICICI Lombard General Insurance Co. Ltd. pleaded in reply that claim with them, was never lodged, so complaint deserves dismissal, being not maintainable. There is no deficiency in service on their part. Further pleaded that as per record, they were intimated by Med Save Company opposite party no.1 that Deep Nursing Home (opposite party no.5) approached them qua providing cashless facilities for treatment of the complainant. Opposite party no.1 denied vide letter dated 4.5.2006 such cashless facility for treatment, on the ground that liability of the insurance company was not determinable at present.


    Opposite party no.1 rejected the claim, as hospital of opposite party no.5 was not on Sanjivni Network of hospitals, because hospital had not been provided with rate list. So, cashless facility was not provided to the complainant. Opposite party no.5 was intimated by opposite party that complainant may submit hospitalization papers for reimbursement and claim would be settled after investigation. Complainant till date has not lodged any claim. Only claim was lodged by Deep Nursing Home, opposite party no.5, which was rejected vide letter dated 4.5.2006. So, averred that there is no deficiency in service on their part.

    5- Opposite parties no.1, 2 & 5 did not contest the complaint and are being proceeded exparte.

    6- Contesting parties, in support of their respective claims, adduced evidence by way of affidavits and documents.

    7- We have heard ld. counsel for parties and scanned the entire material placed on the file minutely.

    8- Proved and admitted aspects of the case are that Punjab Govt. through Secretary, Cooperative Societies, launched Sanjivni Health Care Scheme, for welfare of the members of the cooperative societies, and their dependants. Members of the society, who opted for the scheme, were required to pay nominal amount, to get health insurance coverage. Job to implement Sanjivni Health Care Scheme was entrusted to Med Save Global Health Care Co. and they got insurance coverage for such members of the society and their dependants, from ICICI Lombard General Insurance Company Limited. Under the scheme, not only members of the society, but their dependents covered under the scheme, were also entitled to get cashless treatment in empanelled hospitals, recognized by Med Save Health Care Company.

    9- It is in backdrop of aforesaid admitted aspects argued on behalf of opposite parties no.7 & 8 that no negligence is attributed to them by the complainant, who never lodged any claim for reimbursement and that Deep Hospital was not recognized hospital, for taking treatment and as a result, deficiency if any, is on part of Deep Hospital, who falsely represented to the complainant that they were on the penal recognized list of the hospitals of opposite party no.1.

    10- We may state that husband of the complainant was issued by opposite party no.1, card no.86011000003559A qua account no.265-5075/707, valid from 14.1.2006, copy of which is Ex.C11. He being member of the society and covered in Med Save Health Care Scheme, his wife Smt. Harjinder Kaur automatically got obtained insurance coverage vide card Ex.C12 dated 14.1.1006 bearing card no.860110000 03559C, Code Account No.265.

    11- The next question is whether Deep Hospital opposite party no.5, where she took treatment, was penalled hospital of opposite party no.1. Ex.C13 list of penalled hospitals, recognized by opposite party no.1, at serial no.104, contains name of Deep Nursing home. So, it means it was penalled and recognized hospital, empowering cardholder of Med Save Health Care Scheme, to get cashless treatment. In order to take such cashless treatment after getting admitted in Deep Nursing Home, complainant filled authorization form Ex.C9 and that request of the complainant for cashless treatment was faxed by Deep Nursing Home to opposite party no.1. Opposite party no.1 consequently, vide its communication Ex.C20 dated 4.5.2006, intimated Deep Nursing Home, as under:-

    “This is with reference to the request form for cashless hospitalization received by us for the treatment of the above mentioned patient at your hospital. He/she is admitted on 26.4.2006 under the able supervision of Dr. Dr. Vyom Bhargava.



    The liability of the insurance company under this policy is not determinable at present from the details provided to us regarding the history of the insurance and disease.



    Rejected as the hospital is not on Sanjivni Network of hospitals as the hospital had not provided with the rate list.



    Hence, cashless facility can not be extended in this case. The hospital is requested to collect the expenses from the insured person. However, the insured person may submit the hospitalization papers for reimbursement and the claim will be settled after investigation and gathering more information, if found admissible, as per policy terms and conditions.



    This is issued with the approval of competent authority”.







    12- So, from this communication, appears that opposite party no.1, in view of the intimation furnished by opposite party no.5, was not in a position to determine liability of the insurance company under the policy. Further, it was conveyed that claim rejected, as Deep Hospital was not in Sanjivni Network of hospitals, as it had not been provided with rate list. At this stage, we may intrude to say that as far as list of penalled and recognized hospitals, circulated by opposite party no.1, is concerned, in that list, Deep Nursing Home was mentioned at serial no.104. Therefore, it does not now lies in the mouth of opposite party no.1, to say that Deep Nursing Home was not recognized for cashless treatment, as they had not been provided the rate list. If it was so, they should not have penalled and recognized that hospital. For such act or deficiency on their part, complainant can not be made to suffer.

    13- Also, it was intimated by opposite party no.1 to opposite party no.5 under the said communication Ex.C20 that insured may submit hospitalization papers for reimbursement which would be settled after investigation. We have no proof with us whether it was ever conveyed by opposite party no.5 to the complainant.

    14- Though complainant alongwith complaint, has placed on record, discharge summary Ex.C5 alongwith invoices qua purchase of medicines, receipts of laboratory charges etc. Ex.C7 to Ex.C8 of opposite party no.5 hospital.

    15- Opposite parties no.7 & 8 could not decide the claim, as it was never lodged with them. Though opposite party no.1 intimated opposite party no.5, regarding such requirement, to decide claim of the complainant. It appears in these circumstances that herein, not only opposite party no.5, but also opposite party no.1 faultered in doing their duty, which caused immense sufferance to the complainant.

    15- In aforesaid circumstances, we accordingly allow this complaint and pass the following directions to opposite parties no.1 to 3 & 5:-

    (i) Complainant shall lodge claim of reimbursement with opposite party no.1 to 3, supported with necessary vouchers, documents, medical records, who shall then forward claim of the complainant, for settlement to ICICI Lombard General Insurance Co. Ltd. opposite parties no.7 & 8 and they shall settle claim of the complainant within 60 days of receipt of claim papers from the complainant.

    (ii) Complainant would also be entitled for compensation, as was entitled for cashless treatment from Deep Nursing Home, which was recognized hospital of opposite party no.1, but they wrongly denied cashless treatment, forcing complainant, to pay the amount of treatment to the hospital and for such deficiency in service on their part, by not allowing cashless treatment to the complainant, opposite party no.1 & 2 ordered to be pay compensation of Rs.5000/- to the complainant. Similarly, opposite party no.5 failed to convey to the complainant, lodging reimbursement claim with the opposite party, as was communicated to them by opposite party no.1, in their letter Ex.C20, by not intimating the complainant qua it, they would also be guilty of not rendering proper services to its own consumer. For such default, they are also ordered to pay Rs.5000/- to the complainant. Opposite parties no.1, 2 & 5 also ordered to pay litigation costs of Rs.1000/- each to the complainant.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Karnail Singh son of Sh. Surjit Singh, resident of 1087/4, St. No.2, Kalsian Street, Himmatpura, Ludhiana.

    (Complainant)

    Vs.



    1. ICICI Lombard Motor Insurance Co. Ltd. The Mall, Ludhiana through its Branch Manager.



    2. ICICI Lombard Motor Insurance Co. Ltd. Zenith House, Keshave Rao Khande marg, mahalakshmi, Mumbai-34 through itsMD/GM.



    3. ICICI Lombard Motor Insurance Co. Ltd. Patiala 133 006, through its Branch Manager.

    (Opposite parities)







    O R D E R



    1. Complainant being owner of Mohindra Scorpio car (registration no. PB-10BR-0562) got it insured with opposite party vide policy no. 3001/52011864/00/000, valid from 8.6.2007 to 7.6.2008. The said vehicle was parked by the complainant on 1.11.2007 at 7.30 p.m. in front of his house after locking the same. During night, it was stolen, qua which FIR no.113/2.11.2007 was lodged, but the vehicle could not be traced. Intimation to opposite party was also given.


    But they failed to settle the same despite repeated visits by the complainant and providing them all the documents and information. Non settlement of claim caused mental tension, pain, agony and harassment to the complainant. Hence, served legal notice dated 6.5.08 on the opposite party, but they failed to clear the claim. Such act on the part of opposite party is claimed amounting to deficiency in service and sought value of the insured vehicle Rs.5,60,770/-from the opposite party and Rs.1,00,000/- compensation.

    2. Opposite party in reply admitted insuring vehicle of the complainant. But claimed that complainant obtained insurance policy as a private car, but was using it as a taxi for commercial purpose. Premium for commercial vehicle is more than the private vehicle. Hence, the complaint is not maintainable and deserves dismissal. He was using the vehicle as a taxi, which aspect was admitted by the complainant in writing. There was no deficiency in service. Vide letter dated 4.2.2008; complainant had admitted using insured vehicle for hire and reward. Therefore, it was not covered under the terms and conditions of the policy. They were not deficient or negligent in rendering the services to the complainant.

    3. Parties led their evidence by way of affidavit and documents in support of their respective contentions.

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

    5. The sole question which requires determination is whether the insured private vehicle was being used for commercial purpose by the complainant by operating as a taxi, so, as empowering the opposite party to repudiate the claim? Because, it is not in dispute that the vehicle of the complainant was insured with the opposite party and during currency of the insurance policy had lodged claim of theft of the vehicle by giving copy of the DDR Ex.C.4, FIR Ex.C.5 and RC Ex.C2.


    The claim so lodged was entertained by the opposite party who got it investigated through investigator Third Eye, Jalandhar. The investigator vide his report Ex.R.1 dated 5.12.2007 had found allegations of theft of the vehicle to be correct. But reported that the vehicle was being used as a taxi for commercial purpose. Regarding it, he had recorded statement Ex.R.2 of the complainant. In that statement, complainant himself had admitted also operating the vehicle as a taxi. It claimed that it was stolen while parked outside his house.

    6. Aforesaid admission of the complainant contained in his statement Ex.R.2 and report of the investigator, the opposite party repudiated the claim vide repudiation letter Ex.R.3 dated 4.2.2008, on the ground that the insured vehicle was being used for hire and reward/transportation of goods, which is not covered under the terms and conditions of the policy.

    7. In these circumstances on behalf of the complainant, it was argued that there is no proof or evidence that actually the vehicle was being used as a taxi in violation of the policy. Because no person or Incharge of the taxi stand in support of this has been examined. No doubt, there is no other evidence regarding it except report of the investigator, coupled with statement of the complainant recorded by him. This statement contains admission of the complainant.


    Admission being best evidence requires no other proof. Therefore, we have no reason to disbelieve that the complainant was using this private car as a taxi. Under the policy, vehicle could have been used for no other purpose such as hire and reward or carriage of goods when the complainant had obtained the insurance policy of his vehicle for private use.

    8. No doubt, complainant had given statement to investigator of the opposite party that had been using his vehicle for hire and reward. But at the time of alleged loss, the vehicle was parked outside house of the complainant. There appears no nexus between theft and use of the vehicle. As at the time of theft it was not being used as a taxi. Therefore, such would not be fundamental breach of the policy, so as to empower opposite party to repudiate the contract in entirety.

    9. In case titled as National Insurance Company vs. Nitin Khandewal,2008 (IV), Law Herald (Supreme Court), page 1507, Hon’ble Supreme Court has held that where a private vehicle was used as a taxi and it was found stolen, insurance company would be liable to settle the claim at 75% of the insured amount as on non standard basis.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Ashok Kumar s/o Sh. Sat Pal Sole Proprietor M/s Sat Pal & Sons, Street no.3, Opposite Metro Tyres, Overlock Road,Narankari Satsang Road, Ludhiana.



    …..Complainant.

    Versus



    1- ICICI Lombard General Insurance Company Ltd., having its registered office at ICICI Bank, Bandra Kurla Complex, Mumbai-400051, through its Chairman/managing director.

    2- M/s Instant Credit, Franchise of ICICI Bank Ltd., SCO-7, Ist Floor, Feroze Gandhi Market, Ludhiana, through its branch head.

    …..Opposite parties.







    O R D E R








    1- Complainant is owner of Ford Fiesta car bearing no.PB-10BS-5370. His case is that opposite party no.2 M/s Instant Credit, a franchisee of ICICI Lombard Gen. Ins. Co. opposite party no.1, approached him for getting his vehicle insured. Opposite party no.1 also assured the complainant to get vehicle insured from them, being one of the best insurance companies of the world. Consequently, got his vehicle insured by paying premium under cover note bearing no.PE4160051 dated 15.2.2007. The policy was valid upto 14.2.2008.


    On 15.5.2007, front windshield glass of the car of the complainant, was damaged. Hence, car was sent for repairs to M/s A.B. Motors, authorized dealer of the car. Particulars of the insurance were provided to M/s A.B. Motors, saying that the car being fully assured, so amount of the bill be recovered from the insurance company i.e. opposite party no.1. On 22.5.2007, received a call from M/s A.B. Motors, to pay bill of Rs.9500/- on account of repair charges.


    He required them to recover the same from opposite party no.1, but was forced to foot the bill, on the ground that no insurance existed with opposite party no.1, qua his vehicle. Was shocked to receive such intimation and immediately, contacted opposite party no.2, but they failed to give any satisfactory reply. Complainant was forced to pay Rs.9,420/- from his own pocket, despite the fact that he had insured his car with opposite party no.1, by paying premium of Rs.19,110/- and thereafter, cover note was issued.


    Then approached both opposite parties many times, to settle his claim and was forced to obtain fresh insurance coverage of the car from Oriental Insurance Company. Served legal notice dated 30.5.2007 on opposite party, who failed to settle the claim and same according to the complainant, amounts to deficiency of service on part of opposite parties. He in this complaint u/s 12 of the Consumer Protection Act, 1986, sought compensation of Rs.1 lac and amount of Rs.19,110/- paid to Oriental Insurance Company, for taking insurance of the vehicle.

    2- Opposite party no.1-ICICI Lombard General Insurance Company Ltd. in their reply, pleaded that claim of the complainant was repudiated as no claim, vide letter dated 23.5.2007. Because cheque deposited by the complainant as premium for obtaining insurance, got bounced. So, policy was cancelled from inception, as cheque no.137836 for Rs.1473/- towards insurance premium, was returned unpaid by the bankers of the complainant. Qua it, complainant was duly informed including cancellation of the policy, vide letter dated 10.3.2007.


    Clearly conveyed after cancellation of the policy from inception that company would not be liable for any risk, so complaint is not maintainable. Further averred that on receipt of the claim lodged by the complainant, it was entertained and Sh. Arpan Gupta, surveyor and loss assessor was engaged to assess the loss. The surveyor vide his report dated 20.5.2007, assessed loss of Rs.6408/- only. The claim has rightly been repudiated due to cancellation of the policy, on account of non-receipt of the premium. They claimed there is no deficiency in service and complaint is liable to be dismissed.

    3- Opposite party no.2 in its separate reply, claimed that complaint against them has been unnecessarily filed. They have no relation with the complainant, nor entered into any deal with him. They never approached complainant, for purchase of insurance policy of his car. Such allegations are false and fabricated. All allegations of the complainant have been controverted and denied.

    4- To prove their respective versions, parties adduced evidence by way of affidavits and documents. We have heard ld. counsel for the parties and minutely scanned the entire material placed on the file.

    5- Undoubtedly, the complainant is owner of Ford Fiesta car bearing no.PB-10BS-5370. He got his car insured from opposite party no.1, vide cover note no.PE4160051 dated 15.2.2007, covering risk period upto 14.2.2008. Ex.C1 is copy of the cover note so supplied by opposite party no.1 to the complainant. Vide this cover note, a sum of Rs.21,178- is mentioned having been received as premium from the complainant. But defence of opposite party no.1 is that insurance premium amount of Rs.1473/- paid by the complainant by way of cheque no.137836 in their favour, got bounced. Consequently, they vide letter dated 10.3.2007, cancelled the insurance policy from the date of its inception and notified the complainant accordingly.

    6- Ex.R3 is xerox copy of that cheque bearing no.137836 dated 14.2.2007 for Rs.1473/-, drawn on in favour of opposite party no.1. This cheque was issued by partners of Instant Credit, opposite party no.2, in favour of ICICI Lombard General Insurance Co. Ltd., opposite party no.1. It is this cheque of insurance premium which according to opposite party no.1, got bounced. Opposite party no.1 have placed sufficient material, to prove bouncing of the cheque on account of insufficient funds. This is apparent from endorsement Ex.R4 dated 27.2.2007 of ICICI Bank, dishonouring the cheque in question, due to insufficient funds. Regarding it, ICICI Bank had issued certificate Ex.R5 dated 11.6.2008 to opposite party no.1.

    7- In these circumstances, it is apparent that insurance premium of Rs.21,178/-, as mentioned in the cover note Ex.C1 qua vehicle of the complainant, was received directly by opposite party no.1 from the complainant. They acknowledged receipt of the same in cover note Ex.C1. Rest of the amount of insurance premium, amounting to Rs.1473/- by way of a cheque, was paid to opposite party no.1 by opposite party no.2. But that cheque was dishonoured on account of insufficient funds in the account of opposite party no.2. Notwithstanding denial by opposite party no.2, having no link with the complainant, or that never prompted him to get insurance of his car from opposite party no.1, through their intervention, it is consequently established that there was some arrangement between the complainant and opposite party no.2.


    Opposite party no.2 as a result, issued cheque qua insurance of the vehicle of the complainant, in favour of opposite party no.1, which got bounced. Therefore, in the light of said documentary proof, we have to ignore affidavit Ex.RW2/B of Sh. Rajiv Mittal, partner of opposite party no.2 that complaint against them, is not maintainable and have been unnecessarily dragged into litigation.

    8- On bouncing of cheque of Rs.1473/- bearing no.137836, opposite party no.1 vide letter Ex.R1 dated 10th March, 2007, communicated to the complainant that his policy cover note issued qua his vehicle, has been cancelled from inception and they are no longer at risk from that date. This letter Ex.R1 under certificate of posting Ex.R2, was sent to the complainant.


    This letter Ex.R1 and postal certificate Ex.R2 of opposite party, addressed to the complainant, again authenticates assertion of opposite party no.1 that cheque no.137836 was received as insurance premium of the vehicle. Subsequently, vide letter Ex.R8 dated 23rd May, 2007, opposite party no.1 conveyed to the complainant that his policy was cancelled, due to bouncing of premium cheque.

    9- Complainant to reflect that amount of premium paid by him to opposite party through cheque, was cleared from his account, has placed reliance on Ex.C4 his statement of account with State Bank of India, Gill Road, Ludhiana. There is entry dated 28.2.2007 of clearing of cheque worth Rs.19,383/- and debiting the same amount from his credit.

    10- While car of the complainant was damaged, he lodged claim with the opposite party, which as stated earlier, stood repudiated vide letter Ex.R1 dated 10th March, 2007. Thereupon, complainant issued registered legal notice Ex.C5 dated 30.5.2007 to both opposite parties, but without any effect, despite its receipt by both opposite parties.

    11- After receipt of the claim form Ex.R12, opposite party had engaged Sh. Arpan Gupta, as surveyor, who vide his report Ex.R6, assessed damage of Rs.6408/- to the vehicle of the complainant. It is settled preposition of law that u/s 64-VB of Insurance Act, 1938, insurer is exonerated from any risk in respect of insurance business on which unless and until premium payable is received by him or guaranteed to be paid by any other person.


    Where insurance premium cheque is dishonoured, policy stands cancelled and insurance company not liable, for any damage to the insured vehicle. On dishonouring of cheque, insurance company is entitled to cancel the policy. Reliance placed on the Dedappa & Ors. Vs Branch Manager, National Insurance Co. Ltd. 2008(1)RCR(Civil)-402 (SC); National Insurance Company Limited Vs Seema Malhotra & Ors. AIR 2001 Supreme Court-1197(SC); M/s Vijay Kumar Krishan Gopal Bankers and Commission Agents of Kurukshetra Vs United India Insurance Co. Ltd. & Ors. 1995(2)CLT-504(NC) and Divisional Manager, Oriental Ins. Co. Ltd. Vs Sanjay Kumar Panigrahi IV(2004)CPJ-29(NC).

    12- So, it is apparent that on account of dishonouring of premium cheque, insurance company under the law, would be legitimate to cancel the policy. Such was done by opposite party no.1. Hence, no fault with their action can be found.

    13- However, part of premium of Rs.1473/- on behalf of complainant, was paid by opposite party no.2 to opposite party no.1, by way of cheque. It was on account of dishonouring of that cheque that policy in entirety was cancelled by opposite party no.1. Resultantly, opposite party no.2 whose services were availed by the complainant and had undertaken to pay part of the insurance premium, defaulted and did not ensure encashment of the premium cheque from their account, by insurance company opposite party no.1.


    It was due to such act and conduct of opposite party that insurance policy of the complainant, was cancelled by opposite party no.1. Therefore, opposite party no.2 certainly would be guilty of negligence of not rendering proper services to its own consumer. Therefore, complaint against opposite party no.2 alone, deserves to be allowed.

    14- Complainant is proved to have spent subsequently again a sum of Rs.19110/- for obtaining insurance of his vehicle from Oriental Insurance Company Limited, vide cover note Ex.C12, valid from 23.5.2007 to 22.5.2008. Had premium cheque of Rs.1473/- paid by opposite party no.2, on behalf of complainant to opposite party no.1, not bounced, complainant would not have been forced or compelled to for second insurance of his vehicle from Oriental Insurance Company Limited.


    Hence, amount of Rs.19110/- is liable to be born by opposite party no.2 and paid to the complainant. In addition, they would also be liable to pay damage of the vehicle Rs.6408/-, assessed by the assessed. Therefore, entitlement of the complainant comes to Rs.25,518/-(19110+6408).
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    M/s Sadana Hotels Pvt. Ltd. 15, Feroze Gandhi Market, Ludhiana through its Managing Director Sh. Sahtokh Singh.

    (Complainant)

    Vs.



    1. ICICI Lombard Motor Insurance Co. (also known as ICICI Lombard General Insurance) Mall Road, Ludhiana through its Manager.



    2. ICICI Lombard Insurance Co. Zenith House, Keshavrao Khade Marg, Mahaluxmi, Mumbai 400 034 through its Director/Chairman/Managing Director.



    3. ICICI Lombard Motor Insurance Co. S.C.O. 24-25, 1st Floor, 8-C, Chandigarh.



    4. Radiant Toyota, Chadha Super Cars Pvt. Ltd. G.T. Road, Jugiana, Ludhiana.



    5. ICICI Lombard General Insurance Co. Ltd. Regd. office ICICI Bank Towers, Bandra-Kurla Complex, Mumbai 400 051 through its Managing Director.

    (Opposite parties)








    O R D E R




    1. Complainant company through its Managing Director has filed this complaint under section 12 of the Consumer Protection Act, 1986, for direction to OP-Insurance Company to pay Rs.23,279/- and change chassis and engine number /block number of the Innova Car bearing registration number PB-10BS-879 and pay compensation of Rs.4,50,000/-on account of damages suffered by the complainant company.

    2. Case spelled is that Complainant Company is the owner of Innova Car bearing registration no. PB-10 BS 7879, which they got insured vide policy no. 3001/50973867/00/000 with the OP-Insurance Company. The car was stolen from Feroze Gandhi Market, Ludhiana, qua which FIR no.95 dated 20.4.2007 was lodged in P.S. Division No.5, Ludhiana. Theft was intimated to opposite party no.1 vide letter dated 24.4.2007. Subsequently, stolen vehicle was recovered by the police, regarding which due intimation was given to the OP Insurance Company.


    Police got the vehicle examined from Radiant Toyota Chadha Super Cars Pvt. Ltd. Ludhiana, who after examining reported that chassis number of the car has been tampered and particular portion of the chassis containing number has been replaced with other chassis. Similarly, engine number of the car did not match with the original engine punched number. Key plastic portion of the vehicle was cut and joint with adhesive for the purpose of immobilizer computer chip and Vin plate punch also did not match with the original fitment provided by the manufacturer of the car.


    Qua it, intimation was given to the OP-Insurance Company and on their instructions, the vehicle was entrusted to Radiant Toyota Chadha Super Cars Pvt. Ltd. Ludhiana for repairs on 5.9.2007. Radiant Toyota Chadha Super Cars Pvt. Ltd. Ludhiana after inspection prepared estimate of expenses qua damage/lost parts by assessing the same to Rs.3,31,580/-. Copy of the estimate was sent to the surveyor Mr. Rishi Bhasin of the opposite party. On asking of surveyor, repair estimate were again prepared by Radiant Toyota Chadha Super Cars Pvt. Ltd. Ludhiana and copy given to OP-Insurance Company.


    Complainant claimed that due to changed chassis number and engine/block number of the car, he is unable to ply the same on the road. Hence, was forced to purchase a new Ford Fiesta car. On 24.10.2007, complainant approached surveyor Sh. Rishi Bhasin who apprised that repair charges came to Rs.51,808/- and that complainant should receive delivery from the workshop by paying Rs. 23,279/- from his pocket which would be paid to the complainant subsequently by the OP-Insurance Company.


    Hence, complainant under protest paid that amount to Radiant Toyota Chadha Super Cars Pvt. Ltd. Ludhiana to take delivery of the car. Thereafter, complainant served registered notice dated 24.10,.2007 requiring OP-Insurance Company to pay him Rs.23,279/- paid by him out of his own pocket and requested them to get the engine number and chassis number of the vehicle changed or corrected but they postponed the matter. Such act on the part of the OP-Insurance Company is claimed amounting to unfair trade practice and deficiency in service. Resultantly, this complaint.

    3. OP-Insurance Company contested the complaint by controverting the allegations of the complainant. However, they admitted getting his car insured from them, reporting loss, its recovery and lodging the claim. On lodging of the claim, same was entertained, processed and Mr. R.P. Bhasin was engaged surveyor and loss assessor. On receipt of report of the surveyor, claim under insurance policy was settled and a sum of Rs. 25,767/- assessed by the surveyor vide his report dated 7.11.2007 was paid to opposite party no.4- Radiant Toyota Chadha Super Cars Pvt. Ltd. Ludhiana directly.


    The loss was assessed in terms of loss estimate submitted by the complainant after deductions as per terms and conditions of the policy. Such deductions were on account of depreciation, salvage value and excess value. Therefore, the complainant is not entitled for Rs. 23,279/-. It is denied that surveyor Sh. R.P. Bhasin ever assured complainant to take delivery of the vehicle and balance amount of Rs.23,279/-would be subsequently paid by the Insurance Company to him.


    Such allegations are claimed to be false. Averred that this Fora has no jurisdiction to try the complaint, which is not maintainable. They denied other allegations of the complainant that the chassis number and engine number of the vehicle were also tampered. No such report qua tampering was made by M/s Chadha Super Cars Pvt. Ltd. Complainant is not entitled for any relief, nor he suffered any damage on their account. Neither there is any deficiency in service on their part and the insurance company never indulged in unfair trade practice.

    4. OP No.4-Radiant Toyota, Chadha Super Cars Pvt. Ltd. vide separate reply claimed that there is no deficiency claimed against them, so, the complaint is not maintainable and the complainant is also not a consumer. They have denied rest all the allegations of the complainant and prayed for dismissal of the complaint.

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

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

    7. This claim of the complainant required to be splited into two parts. First claim of the complainant is that he is entitled for payment of Rs.23,279/-, the amount spent from own pocket to get the delivery of the vehicle from M/s Chadha Super Cars Pvt. Ltd., after its repair. The second controversy is entitlement of the complainant for compensation of Rs.4,50,000/- and passing direction to the opposite party to change chassis number and engine number of the complainant.

    8. Aforesaid points have arisen after hearing the parties. During arguments, it was not disputed or denied by the OP-Insurance Company that the insured vehicle of the complainant was reported to be stolen and thereafter its recovery. Resultantly, qua these admitted and undisputed aspects, we shall not burden the record by referring evidence pertaining to these points.

    9. The first point of recovering Rs. 23,279/- has appeared as Sh. R.P. Bhasin surveyor and investigator vide report Ex.R.1 dated 7.11.2007 has assessed total damage to the vehicle to the tune of Rs.25,762.02p. As insurance policy of the car obtained by the complainant was cashless, so, that amount of Rs. 25,762.02p was directly paid by the OP-Insurance Company to OP No.4 -Radiant Toyota Chadha Super Cars Pvt. Ltd. This amount was assessed after applying depreciation, salvage value, excess clause of the insurance policy Ex. R.8 and insurance certificate Ex.R.7. In support of the report Ex.R.1, affidavit RW2/A of its author Sh. R.P. Bhasin Surveyor & Loss Assessor stand relied.


    However, we can not believe in absence of cogent evidence, allegations of the complainant sworn through affidavit Ex.CW1/A that Sh. R.P. Bhasin had required the complainant to take delivery of the vehicle by paying Rs.23,279/- from his own pocket and that this amount subsequently would be paid to him by the Insurance Company. Neither there is any communication to such effect on the record. Also Sh. R.P. Bhasin & Company Surveyor and Loss Assessor of the Insurance Company could not have given such assurance being not authorised to do so.

    10. Complainant has based the claim because a sum of Rs. 51,808/- in all was spent upon repair of the vehicle as per invoice Ex.C12 of Radiant Toyota Chadha Super Cars Pvt. Ltd. It is mentioned in the invoice that Rs.23,279/- was received on 24.10.2007. It is this amount, which complainant paid from his pocket. The insurance Company is liable to pay the amount as per terms and conditions of the policy. Policy provides for reducing depreciation value, salvage value and having excess clause. Therefore, the Insurance Company was not bound to pay the entire amount reflected in invoice Ex.C.12. Therefore, in such scenario, we feel that claim of the complainant for refund of Rs. 23,279/- from OP-Insurance Company is not maintainable or sustainable.

    11. For coming to such conclusion, we are fortified from decision of the Karnatka State Consumer Disputes Redressal Commission, Banglore, in ca se reported as IV (2006) CPJ 30, titled as Jyothi Agencies Vs. New India Assurance Company Limited. In that case, deductions were made by the Insurance Company as per policy clause and the amount was received without protest. Same was held not amounting to deficiency in service. Similar is situation in this case.

    12. It is also settled that surveyor report being an important document can not be brushed aside in absence of specific reasons. Reliance placed on case Bhim Singh Vs. national Insurance Company Limited & Anr.reported in 1 (2009) CPJ 106 (Union Territory Consumer Disputes Redressal Commission, Chandigarh; Prem Chand Sadana Vs. New India Assurance Co. Ltd. 1 (2009) CPJ 229(Uttrakhand State Consumer Disputes Redressal Commission, Dehradun; National Insurance Coimpany Limited & Anr. Vs. Rajesh Kumar 1 (2009) CPJ 292 (Jharkhand State Consumer Disputes Redressal Commission, Ranchi and Netrananda Behera Vs. New India Assurance Co. Ltd. & Anr. 1 (2006) CPJ 416 (Orissa State Consumer Disputes Redressal Commission, Cuttak)

    13. It is a settled law that report of the surveyor is an important document which can not be brushed aside without specific reason. In the instant case, no reasons have forth come from the complainant empowering us, to ignore report of the surveyor.

    14. Therefore, complainant would not be entitled for any refund of the amount.

    15. Now coming to 2nd point of compensation and directing opposite party to change, changed chassis and engine number of the vehicle. Our discussion on point no.1 clearly spells that there is no deficiency in service on the part of OP-Insurance Company, nor they resorted to unfair trade practice. The position being so, would not entitle the complainant for any compensation as claimed.

    16. As far as any direction to get engine and chassis number changed of the car is concerned, there is no proof that same has been got done by the complainant. Though he placed on record assessment of report Ex.C8 obtained from Radiant Toyota Chadha Super Cars Pvt. Ltd. who assessed cost of such change to the tune of Rs. 3,31,580/-. But there is no proof that complainant got changed chassis and engine number and spent any amount. If he do so then may lodge this claim with the Insurance Company who shall then settle it in conformity with the insurance policy.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    S/o. Panaiah,

    R/o. Jonnalagadda Village and Post,

    Guntur District.



    C/o. N.Uma Maheswara Rao, Advocate,

    Ankammanagar, Guntur. … Complainant

    AND



    1. ICICI Lambard General Insurance Ltd.,

    Rep. by its Attorney,

    Registered office at ICICI Bank Towers,

    Bandra, Kurla Complex,

    Mumbai – 400 034.

    2. M/s. ICICI Lambard General Insurance Ltd.,

    Rep. by its Branch Manager,

    Branch office at Usman Plaza,

    6-3-352/1, 2nd and 3rd floors,

    Road No.1, Banjara Hills, Hyderabad.

    3. M/s. ICICI Lambard General Insurance,

    6/1, Arundelpet, Guntur. …. Opposite parties








    O R D E R



    This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant praying to direct the opposite parties to pay compensation of Rs.63,000/- as per the claim application and for costs.

    The averments of the complaint in brief are as follows:

    The complainant purchased TVS XL Super HD from M/s. Pioneer Automotives, Besides Congress Office, GT Road, Guntur under invoice No.5500, dt.09-03-06, which is financed by Kusuma Sankar Finance Corporation, Guntur and the said vehicle was insured with 3rd opposite party being a representative of opposite parties 1 and 2 at Guntur under policy No.3005/1663782/00/0000, dt.09-03-06 and it is valid upto March, 2007.

    The said vehicle was stolen on 10-09-06 and the complainant gave police complaint on 10-09-06 which was registered as crime No.578/06 under section 379 of IPC, the complainant also gave written representation to the RTA, Guntur on 21-09-06 about the theft of vehicle. The complainant informed the same to the opposite parties. Thereupon, the 1st opposite party obtained indemnity cum declaration undertaking on 05-12-06 from the complainant. Subsequently, the complainant used to attend 3rd opposite party for payment of insurance amount. But the 3rd opposite party did not choose to pay the cost of vehicle i.e., Rs.22,500/-.


    Thereupon the complainant gave representation to the opposite parties, but the opposite parties refused to pay the insured amount i.e., cost of the vehicle in the event of theft of vehicle. Due to nonpayment of vehicle cost, the complainant has to travel by other modes, due to which the complainant sustained huge loss. Hence, this complaint.

    The complainant claimed an amount of Rs.22,500/- for the loss of vehicle, Rs.12,000/- for loss of money by traveling in other modes, Rs.10,000/- for mental agony, Rs.500/- for postal and other expenses, Rs.3000/- for legal expenses, Rs.15,000/- for compensation. In all the complainant claimed an amount of Rs.63,000/-.

    The opposite parties 1 to 3 have filed their version denying the allegations made in the complaint.

    The brief facts of version of OPs 1 to 3 are as follows:

    The TVS XL Super vehicle bearing registration No.AP 7AJ 1285 was insured with this opposite party under two wheeler’s package policy vide policy No.3005/1665182/00/000 and the policy commences from 09-03-06 to 08-03-07.

    In the complaint filed by the complainant, there is no date of theft and time mentioned and the complaint is filed to claim the loss under various heads as if the complainant incurred loss claiming Rs.63,000/- and due to his negligence. The complaint is vague and this opposite party is not liable to pay compensation. The complainant stated in the complaint that the vehicle was stolen on 10-09-06 and gave police report on 10-09-06, but actually theft occurred on 06-08-06 at about 6.45 am in front of P.Prasad’s house at Chandramouli Nager, 3rd line, Guntur and the same was given by the complainant in writing to the opposite party.


    But the version of complainant is different as if the vehicle was stolen on 10-09-06. So this attitude of the complainant shows that in order to gain wrongful advantage from the opposite party this complaint is filed.

    The complainant is using the vehicle for transportation of goods which is not covered under the policy. The complainant violated the terms and conditions of the policy. There is delay of 34 days in giving FIR to the police and also till today no final report was filed by the police and the complainant using the vehicle for carrying milk i.e., transportation of goods, which is not covered in the policy and also left the vehicle on the road without locking and on this ground the claim was repudiated and the same was intimated to the complainant. The complainant without approaching the arbitrator filed this complaint before this Forum. Hence, the complaint is liable to be dismissed.

    The complainant and opposite parties have filed their respective affidavits in support of their contentions reiterating the facts.

    On behalf of complainant Ex.A1 to A7 are marked. Ex.A1 is the invoice under which the complainant purchased the vehicle. Ex.A2 is the two wheeler package policy. Ex.A3 is the FIR under section 379 IPC registered for the loss of vehicle of complainant. Ex.A4 is the referred notice of Pattabipuram Police. Ex.A5 is the letter by complainant to RTA, Guntur. Ex.A6 is the certificate of registration regarding the lost vehicle. Ex.A7 is the indemnity cum declaration undertaking given by the complainant.

    Now the points for consideration are that

    1. Whether there is any deficiency of service on the part of opposite parties?
    2. To what relief the complainant is entitled?

    POINT No.1

    It is the case of the complainant that he purchased two wheeler under Ex.A1 and insured the same under Ex.A2 and he lost the same on 10-09-06 and intimated the fact of loss of vehicle to the opposite parties and claimed insurance amount and that the opposite parties repudiated the claim on the ground that the vehicle was used for transportation of milk by the complainant and also on the ground that the complainant left the vehicle on the road without locking the same.

    The case of the opposite parties is also that the complainant used the vehicle for transportation of milk and the complainant left the vehicle on the road without locking the same.

    The complainant herein is the milk vendor. He used to sell milk by carrying it on his two wheeler from door to door for his livelihood. Therefore, it cannot be said that the vehicle is used for transportation. In case of theft of a vehicle the breach of condition is not germane. It is a well settled that in case of theft of insured vehicle, the nature of its use is not to be looked into and the insurer cannot repudiate the insured claim on that basis (vide 2008 CTJ 680 (SC) (CP) National Insurance Company Ltd. Vs. Nitin Khandelwal).

    It is practically not possible to lock the vehicle wherever it is stopped as the complainant is a milk vendor and using it for carrying the milk and that he has to stop his vehicle from door to door. In those circumstances, it is not practically possible to lock the vehicle while moving from door to door.

    The opposite parties in their version stated that the actual theft occurred on 06-08-06 at about 6.45 am in front of Mr.P.Prasad’s house at Chandramouli Nagar, 3rd line, Guntur and the same was given by the complainant in writing. The said written statement given by the complainant is not filed by the opposite parties. As seen from Ex.A3 (FIR) the vehicle was lost on 10-09-06 at about 6,45 am at Chandramouli Nagar, Guntur. Admittedly the insurance policy is from 09-03-06 to 08-03-07. The vehicle was lost on 10-09-06.


    Therefore, the repudiation of the claim of insured amount by the opposite parties is not justified and unreasonable. Hence, there is deficiency of service on the part of opposite parties in not settling the claim. Accordingly, this issue is answered in favour of the complainant.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Pandrangi Linga Rao,

    S/o. Panaiah,

    R/o. Jonnalagadda Village and Post,

    Guntur District.



    C/o. N.Uma Maheswara Rao, Advocate,

    Ankammanagar, Guntur. … Complainant

    AND



    1. ICICI Lambard General Insurance Ltd.,

    Rep. by its Attorney,

    Registered office at ICICI Bank Towers,

    Bandra, Kurla Complex,

    Mumbai – 400 034.

    2. M/s. ICICI Lambard General Insurance Ltd.,

    Rep. by its Branch Manager,

    Branch office at Usman Plaza,

    6-3-352/1, 2nd and 3rd floors,

    Road No.1, Banjara Hills, Hyderabad.

    3. M/s. ICICI Lambard General Insurance,

    6/1, Arundelpet, Guntur. …. Opposite parties







    O R D E R



    This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant praying to direct the opposite parties to pay compensation of Rs.63,000/- as per the claim application and for costs.

    The averments of the complaint in brief are as follows:

    The complainant purchased TVS XL Super HD from M/s. Pioneer Automotives, Besides Congress Office, GT Road, Guntur under invoice No.5500, dt.09-03-06, which is financed by Kusuma Sankar Finance Corporation, Guntur and the said vehicle was insured with 3rd opposite party being a representative of opposite parties 1 and 2 at Guntur under policy No.3005/1663782/00/0000, dt.09-03-06 and it is valid upto March, 2007.

    The said vehicle was stolen on 10-09-06 and the complainant gave police complaint on 10-09-06 which was registered as crime No.578/06 under section 379 of IPC, the complainant also gave written representation to the RTA, Guntur on 21-09-06 about the theft of vehicle. The complainant informed the same to the opposite parties. Thereupon, the 1st opposite party obtained indemnity cum declaration undertaking on 05-12-06 from the complainant. Subsequently, the complainant used to attend 3rd opposite party for payment of insurance amount.


    But the 3rd opposite party did not choose to pay the cost of vehicle i.e., Rs.22,500/-. Thereupon the complainant gave representation to the opposite parties, but the opposite parties refused to pay the insured amount i.e., cost of the vehicle in the event of theft of vehicle. Due to nonpayment of vehicle cost, the complainant has to travel by other modes, due to which the complainant sustained huge loss. Hence, this complaint.

    The complainant claimed an amount of Rs.22,500/- for the loss of vehicle, Rs.12,000/- for loss of money by traveling in other modes, Rs.10,000/- for mental agony, Rs.500/- for postal and other expenses, Rs.3000/- for legal expenses, Rs.15,000/- for compensation. In all the complainant claimed an amount of Rs.63,000/-.

    The opposite parties 1 to 3 have filed their version denying the allegations made in the complaint.

    The brief facts of version of OPs 1 to 3 are as follows:

    The TVS XL Super vehicle bearing registration No.AP 7AJ 1285 was insured with this opposite party under two wheeler’s package policy vide policy No.3005/1665182/00/000 and the policy commences from 09-03-06 to 08-03-07.

    In the complaint filed by the complainant, there is no date of theft and time mentioned and the complaint is filed to claim the loss under various heads as if the complainant incurred loss claiming Rs.63,000/- and due to his negligence. The complaint is vague and this opposite party is not liable to pay compensation. The complainant stated in the complaint that the vehicle was stolen on 10-09-06 and gave police report on 10-09-06, but actually theft occurred on 06-08-06 at about 6.45 am in front of P.Prasad’s house at Chandramouli Nager, 3rd line, Guntur and the same was given by the complainant in writing to the opposite party.


    But the version of complainant is different as if the vehicle was stolen on 10-09-06. So this attitude of the complainant shows that in order to gain wrongful advantage from the opposite party this complaint is filed.

    The complainant is using the vehicle for transportation of goods which is not covered under the policy. The complainant violated the terms and conditions of the policy. There is delay of 34 days in giving FIR to the police and also till today no final report was filed by the police and the complainant using the vehicle for carrying milk i.e., transportation of goods, which is not covered in the policy and also left the vehicle on the road without locking and on this ground the claim was repudiated and the same was intimated to the complainant. The complainant without approaching the arbitrator filed this complaint before this Forum. Hence, the complaint is liable to be dismissed.

    The complainant and opposite parties have filed their respective affidavits in support of their contentions reiterating the facts.

    On behalf of complainant Ex.A1 to A7 are marked. Ex.A1 is the invoice under which the complainant purchased the vehicle. Ex.A2 is the two wheeler package policy. Ex.A3 is the FIR under section 379 IPC registered for the loss of vehicle of complainant. Ex.A4 is the referred notice of Pattabipuram Police. Ex.A5 is the letter by complainant to RTA, Guntur. Ex.A6 is the certificate of registration regarding the lost vehicle. Ex.A7 is the indemnity cum declaration undertaking given by the complainant.

    Now the points for consideration are that

    1. Whether there is any deficiency of service on the part of opposite parties?
    2. To what relief the complainant is entitled?

    POINT No.1

    It is the case of the complainant that he purchased two wheeler under Ex.A1 and insured the same under Ex.A2 and he lost the same on 10-09-06 and intimated the fact of loss of vehicle to the opposite parties and claimed insurance amount and that the opposite parties repudiated the claim on the ground that the vehicle was used for transportation of milk by the complainant and also on the ground that the complainant left the vehicle on the road without locking the same.

    The case of the opposite parties is also that the complainant used the vehicle for transportation of milk and the complainant left the vehicle on the road without locking the same.

    The complainant herein is the milk vendor. He used to sell milk by carrying it on his two wheeler from door to door for his livelihood. Therefore, it cannot be said that the vehicle is used for transportation. In case of theft of a vehicle the breach of condition is not germane. It is a well settled that in case of theft of insured vehicle, the nature of its use is not to be looked into and the insurer cannot repudiate the insured claim on that basis (vide 2008 CTJ 680 (SC) (CP) National Insurance Company Ltd. Vs. Nitin Khandelwal).

    It is practically not possible to lock the vehicle wherever it is stopped as the complainant is a milk vendor and using it for carrying the milk and that he has to stop his vehicle from door to door. In those circumstances, it is not practically possible to lock the vehicle while moving from door to door.

    The opposite parties in their version stated that the actual theft occurred on 06-08-06 at about 6.45 am in front of Mr.P.Prasad’s house at Chandramouli Nagar, 3rd line, Guntur and the same was given by the complainant in writing. The said written statement given by the complainant is not filed by the opposite parties. As seen from Ex.A3 (FIR) the vehicle was lost on 10-09-06 at about 6,45 am at Chandramouli Nagar, Guntur. Admittedly the insurance policy is from 09-03-06 to 08-03-07.


    The vehicle was lost on 10-09-06. Therefore, the repudiation of the claim of insured amount by the opposite parties is not justified and unreasonable. Hence, there is deficiency of service on the part of opposite parties in not settling the claim. Accordingly, this issue is answered in favour of the complainant.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Pandrangi Linga Rao,

    S/o. Panaiah,

    R/o. Jonnalagadda Village and Post,

    Guntur District.



    C/o. N.Uma Maheswara Rao, Advocate,

    Ankammanagar, Guntur. … Complainant

    AND



    1. ICICI Lambard General Insurance Ltd.,

    Rep. by its Attorney,

    Registered office at ICICI Bank Towers,

    Bandra, Kurla Complex,

    Mumbai – 400 034.

    2. M/s. ICICI Lambard General Insurance Ltd.,

    Rep. by its Branch Manager,

    Branch office at Usman Plaza,

    6-3-352/1, 2nd and 3rd floors,

    Road No.1, Banjara Hills, Hyderabad.

    3. M/s. ICICI Lambard General Insurance,

    6/1, Arundelpet, Guntur. …. Opposite parties









    O R D E R



    The complainant purchased TVS XL Super HD from M/s. Pioneer Automotives, Besides Congress Office, GT Road, Guntur under invoice No.5500, dt.09-03-06, which is financed by Kusuma Sankar Finance Corporation, Guntur and the said vehicle was insured with 3rd opposite party being a representative of opposite parties 1 and 2 at Guntur under policy No.3005/1663782/00/0000, dt.09-03-06 and it is valid upto March, 2007.

    The said vehicle was stolen on 10-09-06 and the complainant gave police complaint on 10-09-06 which was registered as crime No.578/06 under section 379 of IPC, the complainant also gave written representation to the RTA, Guntur on 21-09-06 about the theft of vehicle. The complainant informed the same to the opposite parties. Thereupon, the 1st opposite party obtained indemnity cum declaration undertaking on 05-12-06 from the complainant. Subsequently, the complainant used to attend 3rd opposite party for payment of insurance amount. But the 3rd opposite party did not choose to pay the cost of vehicle i.e., Rs.22,500/-.


    Thereupon the complainant gave representation to the opposite parties, but the opposite parties refused to pay the insured amount i.e., cost of the vehicle in the event of theft of vehicle. Due to nonpayment of vehicle cost, the complainant has to travel by other modes, due to which the complainant sustained huge loss. Hence, this complaint.

    The complainant claimed an amount of Rs.22,500/- for the loss of vehicle, Rs.12,000/- for loss of money by traveling in other modes, Rs.10,000/- for mental agony, Rs.500/- for postal and other expenses, Rs.3000/- for legal expenses, Rs.15,000/- for compensation. In all the complainant claimed an amount of Rs.63,000/-.

    The opposite parties 1 to 3 have filed their version denying the allegations made in the complaint.

    The brief facts of version of OPs 1 to 3 are as follows:

    The TVS XL Super vehicle bearing registration No.AP 7AJ 1285 was insured with this opposite party under two wheeler’s package policy vide policy No.3005/1665182/00/000 and the policy commences from 09-03-06 to 08-03-07.

    In the complaint filed by the complainant, there is no date of theft and time mentioned and the complaint is filed to claim the loss under various heads as if the complainant incurred loss claiming Rs.63,000/- and due to his negligence. The complaint is vague and this opposite party is not liable to pay compensation. The complainant stated in the complaint that the vehicle was stolen on 10-09-06 and gave police report on 10-09-06, but actually theft occurred on 06-08-06 at about 6.45 am in front of P.Prasad’s house at Chandramouli Nager, 3rd line, Guntur and the same was given by the complainant in writing to the opposite party. But the version of complainant is different as if the vehicle was stolen on 10-09-06. So this attitude of the complainant shows that in order to gain wrongful advantage from the opposite party this complaint is filed.

    The complainant is using the vehicle for transportation of goods which is not covered under the policy. The complainant violated the terms and conditions of the policy. There is delay of 34 days in giving FIR to the police and also till today no final report was filed by the police and the complainant using the vehicle for carrying milk i.e., transportation of goods, which is not covered in the policy and also left the vehicle on the road without locking and on this ground the claim was repudiated and the same was intimated to the complainant. The complainant without approaching the arbitrator filed this complaint before this Forum. Hence, the complaint is liable to be dismissed.

    The complainant and opposite parties have filed their respective affidavits in support of their contentions reiterating the facts.

    On behalf of complainant Ex.A1 to A7 are marked. Ex.A1 is the invoice under which the complainant purchased the vehicle. Ex.A2 is the two wheeler package policy. Ex.A3 is the FIR under section 379 IPC registered for the loss of vehicle of complainant. Ex.A4 is the referred notice of Pattabipuram Police. Ex.A5 is the letter by complainant to RTA, Guntur. Ex.A6 is the certificate of registration regarding the lost vehicle. Ex.A7 is the indemnity cum declaration undertaking given by the complainant.

    Now the points for consideration are that

    1. Whether there is any deficiency of service on the part of opposite parties?
    2. To what relief the complainant is entitled?

    POINT No.1

    It is the case of the complainant that he purchased two wheeler under Ex.A1 and insured the same under Ex.A2 and he lost the same on 10-09-06 and intimated the fact of loss of vehicle to the opposite parties and claimed insurance amount and that the opposite parties repudiated the claim on the ground that the vehicle was used for transportation of milk by the complainant and also on the ground that the complainant left the vehicle on the road without locking the same.

    The case of the opposite parties is also that the complainant used the vehicle for transportation of milk and the complainant left the vehicle on the road without locking the same.

    The complainant herein is the milk vendor. He used to sell milk by carrying it on his two wheeler from door to door for his livelihood. Therefore, it cannot be said that the vehicle is used for transportation. In case of theft of a vehicle the breach of condition is not germane. It is a well settled that in case of theft of insured vehicle, the nature of its use is not to be looked into and the insurer cannot repudiate the insured claim on that basis (vide 2008 CTJ 680 (SC) (CP) National Insurance Company Ltd. Vs. Nitin Khandelwal).

    It is practically not possible to lock the vehicle wherever it is stopped as the complainant is a milk vendor and using it for carrying the milk and that he has to stop his vehicle from door to door. In those circumstances, it is not practically possible to lock the vehicle while moving from door to door.

    The opposite parties in their version stated that the actual theft occurred on 06-08-06 at about 6.45 am in front of Mr.P.Prasad’s house at Chandramouli Nagar, 3rd line, Guntur and the same was given by the complainant in writing. The said written statement given by the complainant is not filed by the opposite parties. As seen from Ex.A3 (FIR) the vehicle was lost on 10-09-06 at about 6,45 am at Chandramouli Nagar, Guntur. Admittedly the insurance policy is from 09-03-06 to 08-03-07.


    The vehicle was lost on 10-09-06. Therefore, the repudiation of the claim of insured amount by the opposite parties is not justified and unreasonable. Hence, there is deficiency of service on the part of opposite parties in not settling the claim. Accordingly, this issue is answered in favour of the complainant.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    B.S.Dayananda S/o. B.Shankaralingegowda,

    Aged about 32 years, Complainant

    Resident of Byadagere, Kadaba hobli,

    Gubbi taluk, Tumkur district






    AND



    1. The Manager,

    ICICI Lamboard General Insurance Co.,

    Sudha Commercial complex, Opposite Parties

    Opposite coffee cafe day,

    Rajajinagar entrance,

    Dr.Rajkumar Road, Bangalore-10

    2. B.O., Prajapragathi Building,

    BH Road, Tumkur





    ORDER






    2. Through this complaint, the complainant prays for an order against the Opposite Parties (hereinafter called as the OPs for short) to pay him Rs.19, 51,738/- towards loss and damages to the vehicle and for mental agony caused to him due to the deficiency of service alongwith interest at 18% per annum from the date of the complaint till realization.

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

    It is contended that, the complainant is the registered owner of the vehicle TATA SK 1613 tipper bearing Reg.No.KA-06-A-8814. He had insured the vehicle under commercial vehicle package policy No.3008/1086777/00/000 with the OP. The policy was valid from 5-4-2006 to 4-4-2007.



    4. It is further contended that, the vehicle met with an accident on 30-9-2006 at about 9.30 PM near Sampige Railway gate, Sampige Railway Station. In the accident the vehicle was damaged and report was issued by the senior inspector of motor vehicles, RTO’s office. The claim form seeking replacement of complete cabin assemble was filed before the OP. The officials of the OP have visited the spot where the vehicle was parked and after inspection submitted their report regarding the damage. He approached Bellad Engineers Pvt. Ltd. Tumkur for repair and service of the vehicle.


    They estimated Rs.3, 03,265/- towards replacement and service. The OP was though legally bound to pay costs towards the replacement of cabin assemble under the policy, its surveyor issued a letter stating that only costs towards bare cabin assemble has been allowed for replacement without settling his claim. As per Section I-1(4) of standard form for commercial vehicles package police supply alongwith the certificate of insurance, the OP is liable to pay complete costs towards replacement as the vehicle was purchased within a period not exceeding six months for which nil depreciation is to be allowed.



    5. It is further contended that, in pursuance of the letter of the surveyor, the OP did not settle the claim. As the OP did not settle the claim within a reasonable time, he got issued legal notice on 28-11-2006 through the professional couriers. The OP received the said notice but remained silent without making any settlement of the claim.



    6. It is further contended that, the complainant filed a complaint in CC.No.34/2007 before this forum and it was disposed off with a direction to him to furnish information as required by the surveyor and a further direction to the company to settle the claim within 30 days from the date of order i.e. 9-4-2007.



    7. It is further contended that, the complainant submitted the required information through registered letter dated 16-4-2007. It was duly served on the OP on 19-4-2007, but the OP has not taken any steps to settle the claim. In the meanwhile, the authorised signatory of M/s. Bellad Engineering Works issued Tax-invoice and other bills amounting to Rs.3,62,008/-. The said tax invoice and bills were sent to the surveyor of the OP through a letter dated 17-1-2008, the same was served on the surveyor T.T.Ravishankar on 21-1-2008 but the OP remained silent.


    It is further contended that, the complainant personally approached and enquired the OP on several occasions but the OP did not take any steps to settle the claim of the complainant. As such the complainant filed another complaint before this forum in CC.No.186/2007 and after service of notice from this forum, the matter was disposed in terms of the joint memo. In the joint memo it was agreed to furnish information as required by the surveyor and the company shall have to settle the claim of the complaint within 30 days from the date on which the complainant furnishes the information vide order dated 9-4-2007.



    8. It is further contended that, the OP sent a cheque dated 27-5-2008 for Rs.1,70,270/- only though the complainant paid Rs.3,62,008/- without properly considering the tax invoice and bills. It is further contended that, the OP committed deficiency of service by causing delay in making payment that too a meager amount without considering the claim.



    9. It is further contended that, due to non-settlement of claim by the OP within a reasonable time, the complainant has been put to heavy loss and damages as the complainant was liable to pay Rs.23,000/- per month towards the EMI together with interest accrued on purchase of the vehicle from ING Vysya Bank, Rs.8000/- per month towards Driver’s and cleaner’s salary; Rs.2700 towards tax, Rs.1750/- per month towards insurance premium, and parking charges of Rs.4500/- per month towards (at the rate of 150/- per day) and loss of income to the tune of Rs.20, 000/- per month. Thereby, the complainant suffered total loss of Rs.60, 000/- per month. Since he has suffered heavy loss from 30-9-2006 to 27-5-2008 (nearly 21 months) it comes to more than Rs.12, 60,000/-. It is alleged that it was due to the delay and deficiency in service committed by the OP.



    10. It is further contended that, the OP is liable to pay Rs.2,91,738/- (Rs.3,62,008/- - Rs.1,70,270) towards spare parts, labour and service charges, Rs.12, 60,000/- towards loss and damages and Rs.4, 00,000/- towards the mental agony caused to the complainant amounting to Rs.19,51,738/- together with interest at 18% from the date of the complaint till the realisation as the OP as committed deficiency in service. Hence, this complaint.



    11. Among the OPs who have been notified of the complaint, the 1st OP put in his appearance through his counsel and resisted the same. The 2nd OP has failed to appear before the forum and hence he is placed exparte.



    12. The gist of the objections is as follows:

    The 1st OP in his objections, while emphatically denying the complaint averments as false and untenable, interalia pleaded that, the address of the OP given in the cause title is wrong as it is having its office in No.89, SVR complex, II floor, Hosur Road, Bangalore. It is contended that, the estimation given by Bellad engineers Pvt. Ltd is false and exaggerated. Unless the vehicle is dismantled such estimation cannot be given/assessed by the said company. Only the surveyor/valuer has seen the vehicle and he is an independent body and not officials of the OP.



    13. It is contended that, this OP since paid Rs.1,70,270/- through cheque, has not committed any deficiency in service. There is no cause of action for this petition. This petition is not maintainable in law and also not in time. The matter has been disposed off finally on 20-9-07 and the complainant cannot maintain this petition.



    14. It is further submitted that, this OP has paid the amount entitled by the complainant and is not liable to pay any amount as claimed in the petition. This forum has no jurisdiction to entertain this petition. This OP is not liable to pay the amount of Rs.19,51,738/- claimed in the petition.



    15. It is further submitted, the complainant is non co-operative to settle the claim since the beginning. He has not submitted the claim form and not allowed the surveyors of the OPO to inspect the vehicle at the appropriate times and has not informed them well in time. This Hon’ble forum had pointed out this fact in CC.34/2007 and in CC.186/2007. The joint memo filed on 20-9-07 in CC.186/07 clearly established that as on that date, no claim form was submitted by the complainant.


    In fact when the surveyor inspected the vehicle in the presence of the complainant, he was not prepared to co-operate with the surveyor’s work. The complainant has not acted in terms of the joint memo filed. The OP has received the report of the surveyor and immediately made payment of the amount entitled to by the complainant through a cheque. The complainant has not approached this forum with clean hands. Accordingly, he prays for dismissal of the complaint with costs.



    16. In support of the case, the complainant and 1st OP have filed affidavits and pressed into service of several documents. The documents produced by the OP and the complainant came to be marked as Ex.R-1 to R-8 and Ex-C-1 to C-20. We have heard the learned counsels appearing for the parties. We have also examined the material available on records



    17. The questions that arise for our considerations are:

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

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



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

    Point No.1: Yes

    Point No.2: As per order



    REASONS



    19. At the very threshold, we must point out that, this is a third complaint filed by the complainant claiming damages from the OP. The first complaint was registered as CC.No.34/2007 and it came to be disposed on 9th April 2007 with the following order;

    “The complaint is closed with the following conditions. The complainant shall furnish the information as required by the surveyor for submitting his final report to the company. The company shall settle the claim of the complainant in terms of the conditions of the policy within 30 days from date on which the complainant furnishes the information. Liberty is given to the complainant for approaching this forum in case the OP Company fails to settle his claim as stated above. The complainant shall bear his own costs”.



    20. The second complaint No.CC.No.186/2007 came to be disposed off as per the joint memo at Ex.R-6. It reads as thus:

    “Before the District Consumer Redressal Forum, Tumkur

    CC.186/07

    Complainant Opposite party

    B.S.Dayananda The ICICI Lombard GIC Ltd

    Joint Memo filed by parties



    (1) Both the parties have agreed to dispose off the matter in the following terms.

    i) The complainant shall get the vehicle dismantled immediately.

    ii) While dismantling the vehicle the complainant shall allow the surveyor Mr.Ravishankar.T.T. at that time by informing in advance the date & time of the dismantling work

    iii) The complainant shall get the vehicle repaired and submit the bills to the opposite party/surveyor alongwith the claim forum for settlement by the OP

    iv) The Opposite party undertakes that, it will pay the charges as recommended by the surveyor with his report, on receipt of the claim form, bills and the report of the surveyor within the reasonable time.

    (2) In view of the above settlement arrived at between the parties the present complainant does not survive.



    Both the parties humbly pray the Hon’ble forum to dispose off the complainant in the above term.







    21. Thereafter, the present complaint has been filed alleging that, the OP has not complied with the direction. Undisputedly, the subsequent complaint in CC.No.186/2007 came to be disposed off in terms of a memo as could be seen in the order sheet at Ex.-R-7. In Ex-R-6 certain obligations were fixed on the parties to arrive at proper conclusion of the damages of the vehicle.


    From the documents produced by the complainant more specifically at Ex-C-15 and C-18, it is crystal clear that, the complainant did inform the particulars to the 1st OP as well as Sri.T.M.Ravishankar, insurance surveyor and loss assessor. From the survey report dated 28-3-2008 at Ex-R-3, it is seen that, the surveyor estimated the value of loss at Rs.1,92,821/-. It is pertinent note that, in the survey report, there are certain over writings and alterations of figures given by the surveyor. The 1st OP has not explained as to who has corrected those figures and when. Further, such corrections and over writings do not find the signatures or the initials of the surveyor.


    Added to that, the affidavit of the surveyor the supporting the alteration of the figures in his report has not been filed. Therefore, we have to take the figure Rs.1,92,821/- instead of Rs.1,88,946/-. It is undisputed fact that, the OP has paid a sum of Rs.1,70,270/-. What was the basis for that payment is not explained by the OP. Therefore, we are of the opinion that, as per the surveyor report, the complainant is entitled to recover of Rs.1,92,821/- less Rs.1,70,270/- all ready paid. The OP has not placed on material to show the said amount has been paid to the complainant. The non-payment of the said amount by the OP without any justifiable cause amounts to deficiency in service.



    22. Though the complainant has claimed Rs.19,51,738/- alleging that, the OP is liable to pay of EMI of Rs.23,000/- per month, and to make good of other payments alleged to have made by him and Rs.20,000/- per month toward the loss of income and damages at Rs.60,000/- per month., we find no cogent and acceptable evidence to prove substantiate those claims. Therefore, we are not inclined to grant reliefs for those claims.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Vandana Jindal aged 27 years d/o Sh.Bhagwan Dass Jindal, Resident of House No.3325, Sector 15-D, Chandigarh.

    ….…Complainant



    V E R S U S



    1] ICICI Lombard General Insurance Co. Ltd., Zenith House, Keshavrao Khadye Marg, Mahalaxmi Mumbai 400034, through its Managing Director

    2] ICICI Lombard General Insurance Co. Ltd., SCO No.24-25, First Floor, Sector 8-C, Chandigarh, through its Branch Manager.

    3] Sh.Naresh Sindhwani, Incharge, Claim Office, ICICI Lombard General Insurance Co. Ltd., Quite Office 10, Sector 40-B, Chandigarh.

    4] Manoj Dhamija, Incharge, Claim Office, ICICI General Insurance Co. Ltd., SCO No.253, Top Floor, Sector 12, Karnal, Haryana.

    ..…Opposite Parties









    Succinctly put, the complainant purchased one Maruti Car Model 800 DX bearing No.CH-03-P-9984 from one Sh.Vijay Kumar, which was duly insured with OP Insurance Company from 27.2.2008 to 26.2.2009 midnight vide Ann.C-1 & C-2. The insurance of the said car as well as its registration certificate was later on endorsed & transferred in the name of complainant vide Ann.C-3 & C-4 respectively. It is averred that on 26.1.2009 when the brother of the complainant was going to Hisar to meet his friend and when he reached at Village Mund More, main road of Distt. Karnal, the car in question encountered a mechanical defect and as such he parked it in the kacha near the main road at village Mund Mor.


    It is also averred that the brother of the complainant along with his friend searched for a car mechanic but they could find any mechanic and when they came back, they found that the vehicle in question was struck near the safeda tree in denting condition. On the enquiry made from a passer by, it revealed that a vehicle hit the car of the complainant in order to save the stray animal. The matter was reported to the concerned Police Station Asand, Distt. Karnal, who after the enquiry registered a DDR No.30 (Ann.C-5).


    The matter was reported to OP No.1, who advised the brother of complainant to approach local office at Karnal. Thereafter the vehicle was toed to Modern Motors at Karnal by spending Rs.2000/- and then OP No.4 was approached to repair the vehicle or to settle the claim as total loss as the vehicle was fully damaged. Then on the advise of OP No.4, OP No.3 at Chandigarh was approached and requisite documents were submitted. The estimated service cost was prepared and the estimate of Rs.2.00 lacs approx. was given by the service agency for the vehicle of the complainant, which was communicated to the OPs.


    However, the OPs instead of settling the claim, issued a letter for renewal of the policy Ann.C-6. It is next averred that the vehicle in question is lying with Service Station at Karnal and it has been specifically stated by them to either get the vehicle repaired or settle the claim, otherwise the complainant had to bear the expenses of parking charges @ Rs.200/- per day. Therefore, the present complaint has been filed alleging the non-settlement of claim of the complainant as gross deficiency in service, which caused him great mental tension, physical harassment and financial loss.

    2] OPs No.1 & 2 filed reply and admitted that the vehicle in question was insured with them. It is submitted that on receipt of the intimation about the alleged accident, Sh.K.L.Grover was appointed as investigator. Besides this, Sh.A.P.Chawla was also appointed as Surveyor, who had been continuously following up with the complainant for the purposes of assessment and submission of the final assessment report.


    It is also submitted that the complainant did not assist the said surveyor in the assessment. The interim survey was carried out on 4.2.2009 and the interim assessment on repair basis was assessed at Rs.78,251/-. It is further submitted that the complainant vide letter dated 2.3.2009 was informed by the Surveyor to visit premises of the dealer and to discuss the matter & settle the claim qua repair of the vehicle and to provide the original of the necessary documents for the purposes of verification & submission of the final assessment report, but the complainant herself failed to provide the same in a timely manner.


    The surveyor again vide letter dated 26.5.2009 requested the complainant to submit the necessary documentation so that the final report may be submitted to OPs but again the complainant failed to provide the same and as such the final claim could not be processed & completed. It is asserted that the market value of the car of the same make & model is Rs.45,000/- and therefore, the complainant is entitled to the same. Rest of the allegations have been denied and it is prayed that complaint be dismissed.

    3] OPs No.2 & 3 did not turn up despite due service of notice, hence they were proceeded against exparte.

    4] Parties led evidence in support of their contentions.

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

    6] The contention of the OPs is that certain documents were demanded from the complainant which she failed to submit due to which the final survey report was delayed resulting in the delay in finalisation of the claim. In their written reply the OPs have not mentioned as to what documents were needed to finalise the claim which the complainant failed to submit.


    There is only one letter dated 2.3.2009 (Annexure R-I) vide which the driving licence, RC and the police report were asked for by the OPs, which the complainant alleges had already been submitted to them. Annexure R-2 is the report of the investigator in which it is mentioned that Amit Jindal s/o Shri Bhagwan Dass Jindal was the driver at the time of the accident and copy of his DL had already been submitted to the office of the OPs. So far as the RC is concerned, there is no dispute about it that the complainant was the owner of the vehicle and this fact has been admitted even by the surveyor.


    The police report is to be collected by the OPs from the police and was not with the complainant and, therefore, she could not submit the same. Otherwise also, the report was submitted by the surveyor and there is no mention in it if any of these documents were required for submitting the final survey report. The investigator has also submitted his report (Annexure R-2) but even in spite of that the claim was not paid to the complainant. The findings of the investigator show that the facts were verified and were found to be genuine as mentioned in the report.

    7] There is no dispute about it that the vehicle was insured for Rs. One lac as mentioned in the policy (Annexure C-II). As per the surveyor, a sum of Rs.78,251/- is required for replacement of a new body shell alone. It appears this is the only reason why the OPs are delaying the payment of the claim because according to them the vehicle of a similar model is available in the market for Rs.40,000/-. They, therefore, do not want to pay more than that as is mentioned in para 8 of the written reply. However, the IDV of the vehicle cannot be fixed by the OPs alone.


    The price of the vehicle has to be re-fixed with the consent of the complainant. Otherwise, the IDV was assessed by the OPs and was mentioned to be Rs.one lac in the insurance policy (Annexure C-II). They cannot now withdraw this admission unilaterally as that would cause financial damage to the complainant. We are, therefore, of the opinion that the OPs are liable to pay Rs.one lac as insurance claim. Admittedly, it is a case of total loss.

    8] The OPs have delayed the finalisation of the claim unnecessarily without any justification. They shall, therefore, pay interest on the amount retained by them.

    9] In view of the above discussion, we are of the opinion that the present complaint succeeds. The same is accordingly allowed. The OPs are directed to pay to the complainant Rs.one lac as compensation alongwith interest @ 8% per annum since 6.3.2009 (one month after the report of the surveyor) till the amount is actually paid to the complainant alongwith Rs.5,000/- as litigation costs.


    If the aforesaid amount is not paid within the period of thirty days from the date of receipt of copy of this order, the OPs would be liable to pay the entire amount alongwith penal interest @ 12% per annum since the filing of the present complaint i.e. 20.4.2009 till the payment is actually made to the complainant.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Kasam ali son of Sh.Chaudri village Naltoo Post Office Katindi, 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 a cow which was got insured with the opposite party vide policy No. 4057/000098 vide tag No 145351 During the currency of the policy, the cow died on 18-6-2008 at Naltoo. The complainant reported the matter to the Veterinary Hospital Kautala 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.


    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.13,000/- , the assured sum of the cattle with interest at the rate of 12% per annum 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 cow has died due to negligence of the complainant , that the complainant is guilty of suppression of material facts and that the complainant has misrepresented the facts and played fraud upon the opposite party.


    On merits , it has been admitted that the cattle was insured with it and rest of the allegations have been denied . It has further been averred that the claim submitted by the complainant was rightly repudiated . 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 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.

    4 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 but has failed to explain as to how it concluded that the cow had died due to negligence of the complainant.


    The complainant had adduced in evidence letter of repudiation Annexure C-1 in which it has been written “on perusal of the documents submitted by you ,we find that the death has occurred due to neglect” , but the documents adduced by the complainant on the basis of which the opposite party had come to the conclusion that the complainant was negligent have been withheld by it for the reasons best known to it.


    No material has been placed on record by the opposite party to show that the owner of the cattle 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.

    5. Now the next question which arises for determination is as to what amount the complainant is entitled on account of death of the cow. The complainant has claimed Rs.13,000/- on account of death of the insured cow but has not adduced in evidence the insurance policy of the cattle .Rather the letter dated 12th August 2008 Annexure C-1 shows that the cattle insurance claim was for Rs.10,000/-. Hence we hold that the opposite party had been deficient in providing service to the complainant and the complainant is entitled to get Rs.10,000/- from the opposite party being the insurance claim of cattle.

    6 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay the insured sum of the cattle i.e. 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.1000 /- on account of compensation for harassment suffered by him due to deficiency in service and also to pay a sum of Rs.500/- as costs of litigation.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Kishori Lal son of Sh.Sobha Ram resident of village and Post Office Aut, Sub Tehsil Aut, District Mandi, H.P.



    …Complainant





    V/S

    1. I.C.I.C.I. Lombard GIC Ltd ICICI Bank Tower Bandra Kurla Complex Mumbai-400051

    2. ICICI Lombard General Insurance Ltd Sahib Complex Ist Floor Plot No. 118/9 College Road Mandi, H.P. 175001.

    …..Opposite parties






    ORDER.



    This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties. The case of the complainant is that in order to promote the business activities , he purchased LMV

    ( car) from Satluj Motors with the financial assistance of Tata Motor Finance, Lunapani Mandi . A sum of Rs.2,75,000/- had been financed by the Financer . The total cost of the vehicle was Rs.3.50,000/-. . The vehicle was purchased on 21-12-2007 and registered on 9-5-2008 as personal vehicle with RLA ( MV) Banjar and registration No. HP-49-0902 was allotted to it as per registration certificate Annexure A.


    The vehicle was insured with the opposite parties in the sum of Rs.3,44,904/- with effect from 21-12-2007 to 20-12-2008 vide insurance policy Annexure –B. That during the subsistence of the policy, on 28-5-2008 the vehicle in question met with an accident when being driven by Sh. Narotam Ram his younger brother from Sainj to Kullu. The vehicle was badly damaged and sustained total loss . That after the accident the complainant immediately informed opposite party to depute the surveyor but no body turned up and since the traffic was blocked due to accident , the complainant at his own removed the vehicle from the spot to workshop. The vehicle was inspected by the Loss Assessor who declared the same as total loss .


    The vehicle has been parked with M/S Satluj Motors for repair who gave estimate of Rs.2,99,229/- or say Rs. 3,00,000 and the show room value of the vehicle is at Rs.3,50,000/-. The surveyor of the opposite party visited the workshop on 29-5-2008 for conducting survey .The complainant alleged that the opposite parties are insisting for repair of the vehicle and did not release the amount on total loss basis . With these averments , the complainant had sought a direction to the opposite parties to pay Rs.4,00,000/-alongwith interest at the rate of 12 % per annum from the date of accident till the date of payment of the amount .

    2 The opposite parties had resisted the complaint by raising preliminary objections that the complaint does not fall within the scope of the Act, that there is no deficiency in service on the part of the opposite parties, that no accident has taken place and to make this accident appear real, the complainant has played fraud upon the opposite party ,that the complainant did not provide an opportunity to the opposite parties to get the spot survey conducted , that the opposite parties were ready to repair the vehicle but the complainant did not consent to repair and did not provide the invoice of repair to them and he was adamant to get the claim amount on total loss basis , that after the receipt of information of alleged accident.


    It appointed surveyor who conducted the survey on 31-5-2008 in the workshop and net loss assessed on repair basis was in the sum of Rs.1,08,167/-, that the opposite parties have insured the vehicle subject to certain limitation ,exception , terms and conditions and the opposite parties are liable to pay the amount assessed by the surveyor if the award is passed against the opposite parties , that the complainant is guilty of suppression of material facts , that the complainant has flouted the principal of law of equity and that the complainant is estopped f by his own act and conduct .


    On merits insurance of the vehicle had been admitted . The accident of the vehicle has been disputed . It has been admitted that the vehicle has been parked in the workshop of M/S Satluj Motors Lunapani for repair and complainant gave estimate of Rs.2,99,229/- Rest of the allegations have been denied . The opposite parties have prayed for dismissal of the complaint.

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

    4. We have heard the ld. counsel for the parties and have also gone through the entire record including the written arguments filed by the ld. counsel for the complainant. The insurance of the vehicle in question has not been disputed by the opposite parties . However, accident has been disputed and it has been averred by the opposite parties in their reply that the accident had never occurred and to make the accident appear real , the complainant had played fraud upon them.


    However, no evidence has been produced by the opposite parties to prove that the accident of the vehicle had never occurred. On the other hand, the complainant had filed copy of Rapat No.7 dated 28-5-2008 lodged in Police Post ,Sainj Annexure C, wherein it has been mentioned that the vehicle No. HP-49-0902 had met with an accident near Chhanniee Nallah. Therefore in view of the Rapat as above, it cannot be said the vehicle in question did not met with an accident and that the complainant had played fraud upon the opposite parties . The plea of the opposite parties has no legs to stand and deserves to be rejected .

    5 Now the next question which arises for consideration before this forum is as to what amount the complainant is entitled on account of damage caused to the vehicle in question. As per the complainant, the vehicle had been got inspected by the Loss Assessor / Engineer who declared that there is total loss of the vehicle. Further case of the complainant is that the vehicle had been parked at M/S Satluj Motors Lunapani who gave estimate of repairs in the sum of Rs.2,99,229/- and proforma invoice has been annexed as Annexure –B. As per the complainant the insured declared value of the vehicle is Rs.3,45,000/- and 75 % of the same comes to Rs.2,58,750/-.


    The ld. counsel for the complainant contended that since the cost of the repair of the vehicle exceeds more than 75 % of the insured declared value , the loss caused to the vehicle be considered as total loss . On the other hand , the case of the opposite parties is that the it had deputed its surveyor who assessed the loss of the vehicle on repair basis in the sum of Rs.1,08,167/-. Therefore in this background , in our opinion , it was for the complainant to prove and establish that the loss caused to the vehicle was total loss by filing report of some Engineer, however neither any report nor any affidavit of any Engineer has been adduced in evidence by the complainant.


    Though the complainant has mentioned in the complaint that after the accident the vehicle had been got inspected from Loss Assessor / Engineer by the complainant who declared that there is total loss of the vehicle, However no such report has been filed by the complainant. The complainant had only filed proforma invoice of the estimate of the repair issued by M/S Satluj Motors and the affidavit of Sh.Gagan Kumar , Technician of M/S Satluj Motors. On the other hand , the opposite parties had filed report of the surveyor i.e. Engineer Harmeet Singh Kalsi , Mechanical Engineer who in his report dated 15-7-2008 Annexure R-2 has assessed the loss in the sum of Rs.1,08,167/-.


    Affidavit of aforesaid Surveyor Sh. Harmeet Singh Kalsi had also been filed by the opposite parties . It is settled law that the report of Surveyor is an authentic document and it cannot be brushed aside without any sufficient reasons. While taking this view, we are fortified by the order of Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) wherein it has been held that the Surveyor report is an important document and it should not be shunned without sufficient reasons.


    In the present case, the Surveyor who is the qualified mechanical engineer has assessed the loss by taking all the facts and circumstances into consideration .On the other hand , the complainant had only filed the affidavit of Technician in order to prove that the vehicle was a total loss. The complainant should have filed the affidavit of some qualified engineer alongwith his report, however, the same has not been filed by the complainant. Be it stated that the complainant had also filed an application for appointment of an independent surveyor as Local Commissioner .


    However, for the reasons best known to the complainant the aforesaid application was withdrawn. Therefore , in the absence of any satisfactory evidence to the contrary on the part of the complainant , we have no reason to differ with the report of Surveyor dated 15-7-2008 Annexure R-2 and in view of the same , the complainant is held entitled to a sum of Rs.1.08,167/- on account of damage to the vehicle on repair basis . The ld. counsel for the complainant has placed reliance upon the case law titled National Insurance company vs Sheshrao Ambadas Hatiskar 2009(1) CPR-156

    ( NC) wherein it has been held that once the insurance company had accepted the value of vehicle at the time of issuing the insurance cover and had charged the premium amount accordingly, therefore , it could not claim that its value on total loss basis on the date of accident has come down to almost half. However, the aforesaid judgment is distinguishable because in the case before the Hon’ble National Commission the surveyor assessed the loss on total loss basis in the sum of Rs..2,20,000/- whereas the insured declared value of the vehicle was Rs.4,04,000/-.


    In the present case, the situation is quite different as the surveyor had assessed the loss on repair basis and not on total loss basis and the opposite parties had never reduced the insured declared value of the vehicle. Hence the aforesaid judgment of Hon’ble National Commissions is not applicable to the facts of the present case. The vehicle was duly insured with the opposite parties and it met with an accident during the currency of the insurance policy. Therefore , non payment of the claim by the opposite parties amounts to deficiency in service for which the complainant is entitled for compensation on account of harassment caused to him.



    6 In the light of above discussion, the complaint is partly allowed and the opposite parties are directed to pay Rs.1,08,167/- 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 parties are also directed to pay Rs.5,000 /- on account of compensation for harassment suffered by him and also to pay a sum of Rs.2,000/- as costs of litigation.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Satluj Construction Company through its partner Sh. Baldev Thakur Head Office Village and Post Office Padhar, Tehsil Padhar, District Mandi, H.P.

    …Complainant.

    V/S



    ICICI Lombard, Motor Insurance company through its Manager Branch Office Sahib complex IInd floor College Road Mandi, H.P.

    ..Opposite party.



    ORDER.



    That the vehicle met with an accident on 7-11-2007 at Ekk Khud and First information report No. 228/2007 to this effect was lodged in Police Station Dharmshala. The information regarding the accident was duly given to the opposite party and all the relevent documents as well as driving license of the driver Sh .Baljit was also supplied to it but the claim has been repudiated on 12-1-2008 on the ground that the driver was not having valid driving license .The complainant alleged that the claim has been wrongly rejected by the opposite party on false and baseless ground which amounts to deficiency in service .


    The complainant alleged that it had suffered loss of more than Rs.4,50,000/-. The complainant further alleged that the loss of the vehicle was got assessed from Tata motors at Nargrota who had assessed the same at Rs.4,00,000/- and submitted the estimate to the opposite party and thereafter the vehicle was brought to Mandi. With these averments , the complainant had sought a direction to the opposite party to allow the claim alongwith interest at the rate of 9% p. a . Apart from this, cost of the complaint in the sum of Rs.10,000/- has been claimed besides compensation of Rs.20,000/-.

    2. The opposite party filed reply wherein it had taken preliminary objections that there is no deficiency in service on its part, that the complaint does not come within the scope of the Act, that the plying of the vehicle without valid driving license is a fundamental breach of terms and conditions of the insurance policy and that the loss has been assessed by the surveyor in the sum of Rs.2,35,539.35 paise subject to terms and conditions of the policy.


    On merits the opposite party had admitted the insurance of the vehicle and its accident . It has been averred that the claim has been rightly repudiated . Rest of the contents of the complaint have been denied being wrong. The opposite party had prayed for dismissal of the complaint .

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

    4. We have heard the ld. counsel for both the parties and have carefully gone through the record. Be it stated that the insurance of the vehicle and its accident is not in dispute. As per the registration certificate produced in evidence by the complainant, the vehicle in question has been registered as Light Commercial Vehicle (LCV) .


    According to the complainant, the vehicle was being driven by his driver Sh. Baljeet Kumar and whose driving license has been annexed by the opposite party as Annexure R-3. The perusal of the driving license shows that it was issued by Registering and Licensing Authority, Dharmshala and is authorized to drive LMV( NT). The opposite party had repudiated the claim of the complainant on the ground that the aforesaid driving license possessed by the driver was not a valid driving license since the vehicle in question is a commercial vehicle and it falls under the definition of transport vehicle as per Motor vehicles Act,1988.

    5 Now the question which arises for consideration by this Forum is as to whether Sh. Baljeet Kumar was holding a valid and effective driving license at the time of the accident. As discussed hereinabove , the vehicle was being driven by Baljeet Kumar 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.

    6 As per the registration certificate, the vehicle in question is a “ light commercial vehicle ” .Since it is a goods carriage 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 Sh. Baljeet Kumar 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 LaL AIR 2008 Supreme Court -614 = 2008(1)CPC-239 S.C , the driver was driving Tata -709 vehicle which was a transport vehicle while he was holding driving license for light motor vehicle ( LMV) without having an endorsement of transport vehicle under section 3 of the Motor vehicle Act. In these circumstances ,the Hon’ble Apex court held that the driver was not competent to drive “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.”





    7 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 light commercial vehicle and it falls under the category of a “transport vehicle”. Sh. Baljeet Kumar 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 in evidence by the opposite party as Annexure R-3 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 .
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Kishori Lal son of Sh.Sobha Ram resident of village and Post Office Aut, Sub Tehsil Aut, District Mandi, H.P.



    …Complainant





    V/S

    1. I.C.I.C.I. Lombard GIC Ltd ICICI Bank Tower Bandra Kurla Complex Mumbai-400051

    2. ICICI Lombard General Insurance Ltd Sahib Complex Ist Floor Plot No. 118/9 College Road Mandi, H.P. 175001.

    …..Opposite parties







    ORDER.



    This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties. The case of the complainant is that in order to promote the business activities , he purchased LMV

    ( car) from Satluj Motors with the financial assistance of Tata Motor Finance, Lunapani Mandi . A sum of Rs.2,75,000/- had been financed by the Financer . The total cost of the vehicle was Rs.3.50,000/-. .


    The vehicle was purchased on 21-12-2007 and registered on 9-5-2008 as personal vehicle with RLA ( MV) Banjar and registration No. HP-49-0902 was allotted to it as per registration certificate Annexure A. The vehicle was insured with the opposite parties in the sum of Rs.3,44,904/- with effect from 21-12-2007 to 20-12-2008 vide insurance policy Annexure –B. That during the subsistence of the policy, on 28-5-2008 the vehicle in question met with an accident when being driven by Sh. Narotam Ram his younger brother from Sainj to Kullu. The vehicle was badly damaged and sustained total loss .


    That after the accident the complainant immediately informed opposite party to depute the surveyor but no body turned up and since the traffic was blocked due to accident , the complainant at his own removed the vehicle from the spot to workshop. The vehicle was inspected by the Loss Assessor who declared the same as total loss . The vehicle has been parked with M/S Satluj Motors for repair who gave estimate of Rs.2,99,229/- or say Rs. 3,00,000 and the show room value of the vehicle is at Rs.3,50,000/-.


    The surveyor of the opposite party visited the workshop on 29-5-2008 for conducting survey .The complainant alleged that the opposite parties are insisting for repair of the vehicle and did not release the amount on total loss basis . With these averments , the complainant had sought a direction to the opposite parties to pay Rs.4,00,000/-alongwith interest at the rate of 12 % per annum from the date of accident till the date of payment of the amount .

    2 The opposite parties had resisted the complaint by raising preliminary objections that the complaint does not fall within the scope of the Act, that there is no deficiency in service on the part of the opposite parties, that no accident has taken place and to make this accident appear real, the complainant has played fraud upon the opposite party ,that the complainant did not provide an opportunity to the opposite parties to get the spot survey conducted , that the opposite parties were ready to repair the vehicle but the complainant did not consent to repair and did not provide the invoice of repair to them and he was adamant to get the claim amount on total loss basis , that after the receipt of information of alleged accident.


    It appointed surveyor who conducted the survey on 31-5-2008 in the workshop and net loss assessed on repair basis was in the sum of Rs.1,08,167/-, that the opposite parties have insured the vehicle subject to certain limitation ,exception , terms and conditions and the opposite parties are liable to pay the amount assessed by the surveyor if the award is passed against the opposite parties , that the complainant is guilty of suppression of material facts , that the complainant has flouted the principal of law of equity and that the complainant is estopped f by his own act and conduct .


    On merits insurance of the vehicle had been admitted . The accident of the vehicle has been disputed . It has been admitted that the vehicle has been parked in the workshop of M/S Satluj Motors Lunapani for repair and complainant gave estimate of Rs.2,99,229/- Rest of the allegations have been denied . The opposite parties have prayed for dismissal of the complaint.

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

    4. We have heard the ld. counsel for the parties and have also gone through the entire record including the written arguments filed by the ld. counsel for the complainant. The insurance of the vehicle in question has not been disputed by the opposite parties . However, accident has been disputed and it has been averred by the opposite parties in their reply that the accident had never occurred and to make the accident appear real , the complainant had played fraud upon them. However, no evidence has been produced by the opposite parties to prove that the accident of the vehicle had never occurred.


    On the other hand, the complainant had filed copy of Rapat No.7 dated 28-5-2008 lodged in Police Post ,Sainj Annexure C, wherein it has been mentioned that the vehicle No. HP-49-0902 had met with an accident near Chhanniee Nallah. Therefore in view of the Rapat as above, it cannot be said the vehicle in question did not met with an accident and that the complainant had played fraud upon the opposite parties . The plea of the opposite parties has no legs to stand and deserves to be rejected .

    5 Now the next question which arises for consideration before this forum is as to what amount the complainant is entitled on account of damage caused to the vehicle in question. As per the complainant, the vehicle had been got inspected by the Loss Assessor / Engineer who declared that there is total loss of the vehicle. Further case of the complainant is that the vehicle had been parked at M/S Satluj Motors Lunapani who gave estimate of repairs in the sum of Rs.2,99,229/- and proforma invoice has been annexed as Annexure –B. As per the complainant the insured declared value of the vehicle is Rs.3,45,000/- and 75 % of the same comes to Rs.2,58,750/-.


    The ld. counsel for the complainant contended that since the cost of the repair of the vehicle exceeds more than 75 % of the insured declared value , the loss caused to the vehicle be considered as total loss . On the other hand , the case of the opposite parties is that the it had deputed its surveyor who assessed the loss of the vehicle on repair basis in the sum of Rs.1,08,167/-. Therefore in this background , in our opinion , it was for the complainant to prove and establish that the loss caused to the vehicle was total loss by filing report of some Engineer, however neither any report nor any affidavit of any Engineer has been adduced in evidence by the complainant.


    Though the complainant has mentioned in the complaint that after the accident the vehicle had been got inspected from Loss Assessor / Engineer by the complainant who declared that there is total loss of the vehicle, However no such report has been filed by the complainant. The complainant had only filed proforma invoice of the estimate of the repair issued by M/S Satluj Motors and the affidavit of Sh.Gagan Kumar , Technician of M/S Satluj Motors. On the other hand , the opposite parties had filed report of the surveyor i.e. Engineer Harmeet Singh Kalsi , Mechanical Engineer who in his report dated 15-7-2008 Annexure R-2 has assessed the loss in the sum of Rs.1,08,167/-.


    Affidavit of aforesaid Surveyor Sh. Harmeet Singh Kalsi had also been filed by the opposite parties . It is settled law that the report of Surveyor is an authentic document and it cannot be brushed aside without any sufficient reasons. While taking this view, we are fortified by the order of Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) wherein it has been held that the Surveyor report is an important document and it should not be shunned without sufficient reasons.


    In the present case, the Surveyor who is the qualified mechanical engineer has assessed the loss by taking all the facts and circumstances into consideration .On the other hand , the complainant had only filed the affidavit of Technician in order to prove that the vehicle was a total loss. The complainant should have filed the affidavit of some qualified engineer alongwith his report, however, the same has not been filed by the complainant. Be it stated that the complainant had also filed an application for appointment of an independent surveyor as Local Commissioner .


    However, for the reasons best known to the complainant the aforesaid application was withdrawn. Therefore , in the absence of any satisfactory evidence to the contrary on the part of the complainant , we have no reason to differ with the report of Surveyor dated 15-7-2008 Annexure R-2 and in view of the same , the complainant is held entitled to a sum of Rs.1.08,167/- on account of damage to the vehicle on repair basis . The ld. counsel for the complainant has placed reliance upon the case law titled National Insurance company vs Sheshrao Ambadas Hatiskar 2009(1) CPR-156

    ( NC) wherein it has been held that once the insurance company had accepted the value of vehicle at the time of issuing the insurance cover and had charged the premium amount accordingly, therefore , it could not claim that its value on total loss basis on the date of accident has come down to almost half. However, the aforesaid judgment is distinguishable because in the case before the Hon’ble National Commission the surveyor assessed the loss on total loss basis in the sum of Rs..2,20,000/- whereas the insured declared value of the vehicle was Rs.4,04,000/-.


    In the present case, the situation is quite different as the surveyor had assessed the loss on repair basis and not on total loss basis and the opposite parties had never reduced the insured declared value of the vehicle. Hence the aforesaid judgment of Hon’ble National Commissions is not applicable to the facts of the present case. The vehicle was duly insured with the opposite parties and it met with an accident during the currency of the insurance policy. Therefore , non payment of the claim by the opposite parties amounts to deficiency in service for which the complainant is entitled for compensation on account of harassment caused to him.



    6 In the light of above discussion, the complaint is partly allowed and the opposite parties are directed to pay Rs.1,08,167/- 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 parties are also directed to pay Rs.5,000 /- on account of compensation for harassment suffered by him and also to pay a sum of Rs.2,000/- as costs of litigation.
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