BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Remanded Case No.303 of 21.11.2016
Original Consumer Complaint no. 903 of 2000
Date of Institution : 14.12.2000.
Date of Decision : 22.2.2017.
Dr. Ram Saroop Agnihotri M.S. son of Shri Baru Ram, resident of Mandi Dabwali, Distt. Sirsa.
….Complainant.
Versus
New India Assurance Co. Ltd., through its Branch Manager, Mandi Dabwali.
..…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI S.B.LOHIA…………………PRESIDENT
SHRI RANBIR SINGH PANGHAL ……….……MEMBER.
Present: Sh. A.K. Gupta, Advocate for the complainant.
Sh. K.R. Jindal, Advocate for the opposite party.
ORDER
The present case has been remanded by the Hon’ble State Consumer Disputes Redressal Commission, Haryana, Panchkula vide order dated 5.10.2016 to decide it afresh on merits.
2. The case of the complainant is that complainant is a medical practitioner at Mandi Dabwali and runs a hospital under the name of Agnihotri Hospital wherein almost all indoor facilities are available in order to provide better treatment to the patients viz. x-ray, ultrasound machine, ECG and operation theater etc. The ultrasound machine was duly insured with the opposite party for an amount of Rs.2,50,000/- since about 10 years and this machine was imported from Italy. The complainant has paid premium of about Rs.56,000/57,000/- during the last about 10 years. The last policy was obtained from the opposite party which was valid up to 2.5.1998. The policy number is 443260237004 dated 12.6.1997. It is further averred that in the month of January, 1998 i.e. on 28.1.1998, a defect in the probe of ultrasound machine developed which was informed to the opposite party. The opposite party appointed the Surveyor to assess the actual loss. The Surveyor Sh. B.B. Sethi then had managed to submit a false report without inspecting the ultrasound machine of the complainant for which complainant had filed a criminal complaint under Sections 197/198/418/420/469/500/120-B IPC in the Court of learned Sub Divisional Judicial Magistrate at Mandi Dabwali and the Manager alongwith Sh. B.B. Sethi Surveyor and Sh. J.S. Tonk etc. were summoned on 12.6.1998. Feeling aggrieved from the above order of summoning, Sh. J.S. Tonk and Branch Manager Sh. R.P. Sachdeva preferred a revision petition against the summoning order before the court of learned Sessions Judge, Sirsa. Sh. B.B. Sethi surveyor also preferred a revision petition before the court of learned Sessions Judge, Sirsa and both the petitions were accepted by Sh. C.B. Jaglian, learned Additional Sessions Judge, Sirsa on 10.8.1999 and order of summoning was set aside. In the above two revision petitions, the ops have taken a stand that the claim of the complainant under the above insurance policy was not finalized by the op as yet. It is further averred that after the decision of above revision petition, the complainant repeatedly requested the op for settlement of the claim under the above policy but the op has spent sufficient time in completing the formalities by the complainant. But op after the lapse of more than one and half month has given an impression that the op is reluctant in finalizing the settlement of claim inspite of the fact that op is fully aware of the fact that the matter has already been over delayed. The complainant had bonafidely and with due diligence had spent sufficient time of 447 days in prosecuting the complaint in the court of learned SDJM and defending the revision petitions and after deducting the time spent in litigation, the complaint is within limitation. It is further alleged that ultrasound machine is beyond any repairs, therefore, he is entitled to total loss of Rs.2,50,000/- and he has also suffered loss of business to the extent of Rs.1,50,000/- during above said period. Besides this, he has also suffered physical and mental harassment and therefore, he is entitled to total amount of Rs.5,00,000/- from the opposite party. Hence, this complaint.
3. On notice, opposite party appeared and filed written statement raising certain preliminary objections. It has been submitted that the revision petitions against the summoning order were allowed by the then learned Addl. Sessions Judge, Sirsa vide common order dated 10.8.1999 and the summoning order passed by the trial Magistrate was set aside. It has been further submitted that true facts are that Dabwali branch of New India Assurance Company Ltd. issued an EEI Policy No.4432260237004 w.e.f. 3.5.1997 to 2.5.1998 to complainant covering one ultrasound scan machine. The complainant informed the company vide his letter dated 28.1.1998 about the loss of his machine and Mr. Ravi Aggarwal, Surveyor and Loss Assessor was deputed for the survey and assessment of loss on 29.1.1998. However, the complainant thereafter informed the company that he was sending the machine for repairs to M/s Cardio Trace Electronics, 411, Som Dutt Chambers-II, Bhikhaji Cama Palace, New Delhi. Accordingly, M/s B.B. Sethi and company, New Delhi was deputed for survey and assessment of loss. The repairer M/s Cardio Trace Electronics issued a certificate dated 26.2.1998 certifying that the probe of ultrasound machine was working but the crystals inside the probe were not working, as a result of which echo was not being transmitted. The crystals were worn out and beyond repairs/ re-use. Based upon this certificate, the Surveyor Mr. B.B. Sethi informed the complainant vide his letter dated 27.2.1998 with a copy to the company that the loss in reference is due to wear and tear of the crystals which do not fall within the scope of the policy and he has also requested the complainant to substantiate his claim in case he has any difference of opinion. The Surveyor had also taken photographs of the probe at the repairer’s shop. Subsequently, the complainant wrote a letter dated 13.4.1998 to Mr. B.B. Sethi, Surveyor that the said report of the Surveyor and Repairer is totally false and fabricated and against which he was moving the Judicial Court by way of filing a complaint under Section 420 of IPC and same was filed. In this manner the parties, surveyors and other concerned persons have been corresponding with each other and complainant instead of pin pointing the loss, its reason and its extent has preferred to file the present complaint before this Forum which is otherwise wholly impermissible in the light of the true facts of the case and the law applicable thereto. It has been further submitted that the complaint is not only unwarranted and unfounded but the same is otherwise time barred as well. The insurance policy so issued by the insurance company does not give a blanket cover to the insured rather the same provided coverage as per the terms and conditions incorporated therein and the loss reported by the complainant was not found to be covered under the policy and this fact is well within the knowledge of the complainant himself. It has been further submitted that as a matter of fact and in reality, complicated questions of facts are involved in the present case and even the allegations leveled by the complainant in the present complaint cannot be tried summarily, so the matter is referable to the Civil Court for adjudication of the dispute between the parties. The revisions petitions filed by the Officers of the company and Surveyor against their summoning were accepted and summoning order was quashed. With these averments, dismissal of complaint has been prayed for.
4. By way of evidence, complainant produced his affidavit Ex.C1, copy of letter dated 28.1.1998 Ex.C2, copy of document Ex.C3 issued by Punjab & Sind Bank, application form for allotment of importer code number Ex.C4, insurance policy Ex.C5, report Ex.C6, copy of letter dated 27.2.1998 of the Surveyor Ex.C7, copy of letter Ex.C8, copy of criminal complaint Ex.C9, copy of letter dated 14.3.1998 Ex.C10, copy of inspection report Ex.C11, letter Ex.C12, letter dated 9.5.2001 Ex.C13, certified copy of the order dated 10.8.1999 passed in criminal revision No.36 of 1998 Ex.C14. On the other hand, the opposite party produced affidavit of Sh. Sanjay Uppal, Divisional Manager as Ex.R1 and copy of policy schedule Ex.R2.
5. After hearing both the parties and going through the record, Sh. Jagwant Singh the then President and Sh. Hari Singh the then Member of this Forum vide order dated 18.2.2005 held that a person who avails of service for any commercial purpose is not a consumer within the meaning of Section 2 (1) (d) (ii) of the Act and dismissed the complaint being not maintainable.
6. Aggrieved against the said order, the complainant preferred appeal before the Hon’ble State Commission which was also dismissed and order of thie Forum was upheld vide order dated 7.11.2008 holding that appellant is not a consumer as the machinery was installed for commercial purpose.
7. It is further pertinent to mention here that in the revision petition No.610 of 2009 preferred by complainant, the Hon’ble National Commission held the complainant to be ‘consumer’ and remanded the case to the Hon’ble State Commission for deciding on merits. The Hon’ble State Commission vide order dated 5.10.2016 has held that since the District Forum has not decided the complaint on merits, therefore, this case has to be remanded to the District Forum, Sirsa to decide it afresh on merits expeditiously and as such the record of the complaint has been received and matter is before us for fresh decision on merits.
8. We have heard learned counsel for the parties and have gone through the case file carefully.
9. The complainant has already been held a ‘consumer’ of the opposite party by the Hon’ble National Commission in revision petition no.610 of 2009 preferred by complainant. Now we come on the merits of the case. The complainant who is a doctor and is running hospital under the name Agnihotri Hospital in Mandi Dabwali, District Sirsa got insured his one ultra sound scan machine with the opposite party as also admitted by opposite party that they issued an EEI Policy No.4432260237004 w.e.f. 3.5.1997 to 2.5.1998 to the complainant covering one ultra sound scan machine. The complainant vide his letter dated 28.1.1998 (copy Ex.C2) informed the opposite party that their ultrasound scan machine has been damaged and requested to do the needful at the earliest. M/s Cardio Trace Electronics, New Delhi issued a certificate dated 26.2.1998 Ex.C6 to the effect that motor inside the probe is working, however the crystals inside the probe are not working and hence no echo is being transmitted. The crystal are worn out and beyond repair/ re-use. It has also been certified that machine is out of order and needs replacement. The Surveyor appointed by the opposite party namely Sh. B.B. Sethi relying upon the above certificate dated 26.2.1998 written a letter to the complainant on 27.2.1998 to the effect that there was no apparent physical damage (oil leakage etc.) and the non functioning of the probe was construed to be due to wearing out of the crystals inside the probe. In view of no accidental unforeseen electrical or mechanical damage to the probe and also considering the non functioning of crystals due to being wear tear, the loss in reference in their opinion does not comes under the scope of electronic equipment policy in reference. It was also informed in the above said letter that in case complainant has difference of opinion then substantiate the same and submit the policy copy, claim form, statement of sequence of events, estimate of repair/ replacement, quotation for similar new machine and repair/ replacement bills by 10.3.1998, failing which it will be presumed that he is agreed with their opinion and they will submit their report to insurers accordingly. The complainant got inspected the machine from Medical Trading Corporation, Hisar and Sh. Ramdutt Sharma, Sales & Service Engineer of the said agency submitted his inspection report dated 25.3.1998 to the effect that he examined the ultrasound machine in hospital on 25.3.1998 and found that image on the screen is normal, so the crystal in the probe is working. Machine takes long period of about 15 min. from the start to the image projection on the screen which is due to motor and regulating circuit. The machine needs change of motor oil and related circuitry. There is no wear and tear in crystal itself due to time or otherwise. Then Sh. V.K. Saini for Cardiotrace Electrinics written a letter to Sh. B.B. Sethi, Surveyor, the contents of which are reproduced as under:-
The above mentioned probe was inspected in the presence of Mr.B.B. Sethi, Surveyor and Dr. R.S. Agnihotri on 3.3.2000 in our office.
- The probe was previously sent to us for inspection without the machine, so the previous opinion was of tropographical nature. After inspecting the working of probe alongwith machine, in our opinion, the probe has got electro-mechanical defect alongwith displacement of crystal array which gives image accordingly.
- This type of damage can occur due to accidental fall of probe or over heating during use etc.
- This model is of no more manufactured by OTE Biomedica, Italy and so there is no chance of repair.
- There are no spares available of this Model (SIM 3000) so it cannot be repaired.
- As for quotation of similar model as SIM 3000, it is not being currently manufactured.
- When last available this machine used to cost around Rs. 7 Lacs.
- Similar new probe for this Model is not available now, and the Probe is unrepairable.
- When available last, its cost was around Rs.1,25,000/-.
Relying upon the above said letter, Sh. Sandeep Bharti & Associates wrote a letter dated 9.5.2001 (Ex.C13) to the complainant, the contents of which are reproduced as under:-
REG.: Damages to Probe of Ultra Sound Machine on 28.01.1998. E.E.I. Policy No.4432260237004. Claim No.44/322602/60033/97.
Dear Sir,
With reference to your above claim, your insurers have deputed us for final assessment of the damages. In this regard, we would request you to furnish us the following:-
- The damaged probe was quoted to be costing Rs.1.25 lacs by M/s. Cardiotrace Electronics, New Delhi when available last. Accordingly, considering the said cost with 50% depreciation on the same, the Gross Loss would amount to Rs.62,500/- which would be subjected to a 5% Excess Amount as per policy condition alongwith Under –insurance. The Under- insurance is calculated as a ratio between the Sum Insured Vs. the replacement cost of the equipment prevailing on the date of loss. This under-insurance factor would thus be defined on selecting the replacement cost of an identical/ compatible new Ultra Sound Machine. For this, one should have the technical specifications of the insured Ultra Sound Machine, which are to be furnished by you to us. Also note, the Salvage will be the property of the insurers else a suitable amount will be deducted for the same.
10. From the above said reports and letter, it is evident that damage occurred to the above said machine of the complainant and same was not repairable. However, despite admission by the opposite party that defect occurred in the ultra sound machine, it has not settled the claim of the complainant. The opposite party is taking premium for the insurance of the above said machine for the long time from the complainant. So, the complainant is entitled to claim amount of the insured machine from the opposite party after deduction of depreciation value etc. In our considered view, the opposite party is liable to settle the claim of the complainant as per letter above said letter dated 9.5.2001.
11. Thus, keeping in view the above facts and circumstances of the present case, we allow the present complaint and direct the opposite party to settle the claim of the complainant keeping in view letter dated 9.5.2001 within a period of one month from the date of receipt of copy of this order. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. President,
Dated: 22.2.2017. Member. District Consumer Disputes
Redressal Forum, Sirsa.
