PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The Complainants by this complaint have prayed that the Opposite Party be directed to pay balance of insurance claim amounting to Rs.2,07,045/- and compensation of Rs.10,000/- for harassment + Rs.10,000/- towards the cost of this complaint.

 2)        The Complainant No.1 a voluntary consumer organization has filed this complaint on behalf of the Complainant No.2 for the redressal of deficiency in service and unfair trade practice adopted by the Opposite Party in respect of the insurance services rendered by it.

3)        It is submitted that the Complainant No.2 i.e. Insured being an Anesthetist and a Medical Professional had taken a Professional Indemnity Policy from the Opposite Party.  The copy of which is annexed at Exh.‘A’.  Under the said policy the sum insured was Rs.15,00,000/- and it was valid for the period 10/07/1994 to 09/07/1995.  The Complainant No.2 had renewed the aforesaid policy from time to time since 10/07/1992.

 4)        It is the case of the Complainant No.2 that while he was the part of team operating upon one Mrs. Saroj Maheshchandra Katare at Bombay Hospital, she expired.  Thereafter, her husband sent a legal notice and then filed a consumer complaint before the National Consumer Disputes Redressal Commission, New Delhi, being original complaint No.167 of 1995.  The Complainant No.2 for replying the said notice and thereafter defending himself in the said consumer complaint engaged C.R. Naidu and Co., Advocates, ultimately the said complaint was decided by the Hon’ble National Commission vide order dtd.18/12/2009 and the Insured Complainant No.2 was held liable to pay a compensation of Rs1 Lac.  Copies of relevant pages of the said order are marked at Exh.‘B’.  It is alleged that total expenses of Rs.4,75,248/- were required to be incurred by the Complainant No.2 i.e. Insured in the said proceeding.  The details of the said expenses have been submitted in para 4(a) to (b) of the complaint.  The copies of the relevant bills are at Exh.‘C’ (colly.).

 5)        It is alleged that out of the amount of Rs.4,75,248/- the Opposite Party paid an amount of Rs.2,68,203/- as shown in para 5 of the complaint. The last payment was sent vide letter dtd.23/06/2010 the copy of which is marked as Exh.‘D.  It is contended that the Opposite Party refused to pay any further amount towards the defence cost and expenses to the tune of Rs.2,07,045/-. According to the Complainants, that the refusal to pay the balance claim is unjustified, illegal and arbitrary.  The Complainant has therefore, prayed that the Opposite Party be directed to pay the amount of Rs.2,07,045/- alongwith interest @ 12% p.a. from 23/06/2010 till actual payment. 

 6)        The Opposite Party contested the complaint by filing written statement.   It is contended that the Opposite Party No.1 has no locus standi to file the complaint on behalf of Complainant No.2.  It is contended that the total expenses which incurred in respect of the said case to the tune of Rs.4,75,248/- is required to be proved by the Complainants by strict proof thereof.  It is the case of the Opposite Party that the Complainant No.2 has given the breakup which is very exorbitant and is not as per the terms and conditions of the policy.  It is contended that the Opposite Party disbursed the payment as per the terms and conditions of the policy.  Hence, there is no refusal on the part of Opposite Party to pay any further amount towards the defence cost and expenses.  According to the Opposite Party, as per para 4 of the terms and conditions of the policy the Opposite Party is liable to pay cost is and expenses incurred with their prior consent in the defence or settlement of any claim made against the insured  it is contended that the claimant has not obtained the approval of the Opposite Party with respect to the cost and fees for legal expenses, but the Complainant No.2 has given exorbitant bill of defence against cost.  It is submitted that the amount granted by the Hon’ble National Commission was only Rs.1 Lac which has been paid by the Opposite Party.  It is also submitted that the Opposite Party has paid airlines cost of the advocates and other legal expenses as per the terms and conditions of the policy but the Complainant No.2 in order to make profit had submitted exorbitant legal expenses of the advocate and now wants to the Opposite Party to pay exorbitant legal expenses even though there was negligence on the part of Complainant No.2 which has been adjudicated by the National Commission.  The Opposite Party relied the terms and conditions of the policy which are filed with Exh.‘A’ to the written statement.  The Opposite Party has denied the claim of Rs.2,07,045/- and demand of 12% interest thereon.  It is contended that the Complainant has not able to substantiate the claim and has not adduced any proof to show that the claim of the Complainant has been wrongly deducted by the Opposite Party.  It is contended that there is no deficiency of service on the part of the Opposite Party and the complaint is liable to be dismissed. 

 7)        The Complainant No.2 filed his affidavit in support of the contents of the complaint.  The Opposite Party filed affidavit of Divisional Manager, H.L. Gaur, in support of the contents of the written statement.  Complainant No.1 filed written argument and the Opposite Party has also filed its written argument.

 8)        We heard Ld. Representative of the Complainant No.2, Shri. Jehangir Gai.  The Opposite Party Advocate filed pursis that the Opposite Party has filed written statement and written argument and the same may be taken as oral argument.  It is submitted by Shri. Jehangri Gai that the Opposite Party has granted an amount of Rs.2,68,203/- out of the total defence cost incurred by the Complainant No.2 to the tune of Rs.4,75,428/-.  He submitted that the Complainants have submitted all the bills issued by C.R. Naidu and Advocates.  The Complainants have also submitted the copies of travel expenditure of Yogesh Naidu from Bombay to Delhi and Delhi to Bombay and one Mr. Dalvi N.P.   The Complainant has also submitted the copy of the bill of Rs.15,000/- issued by retired Justice K.K. Baam received from Complainant No.2 for recording evince in the matter of Katare V/s. Bombay Hospital & Ors.  He made submission that as per the policy issued by the Opposite Party, the Opposite Party is liable to pay defence cost to the Complainant No.2 and submitted that there is no specific denial on the part of the Opposite Party regarding repudiation of balance amount which is claimed in the present complaint.  Shri. Jehangir Gai, thus, submitted that in view of the terms and conditions of the policy the Opposite Party is liable to pay the amount as claimed in the complaint.

 9)        We have perused the documents which are relied by the Complainant.  It is the fact that the Complainant No.2 had engaged an advocates C.R. Naidu & Co. to defend Original Petition No.167 of 1995 filed by M.C. Katare against him and Bombay Hospital.  Considering the bills issued by C.R. Naidu and Advocates as well as the receipt of the payment issued by Rtd. Justice – K.K. Baam and other travel bills of the advocates engaged by the Complainant No.2 for contesting the matter before the Hon’ble National Commission, it appears that as per the terms and conditions of the policy obtained by the Complainant No.2, the Opposite Party ought to have paid an amount of Rs.4,75,248/- in total of which the Complainant No.2 has placed on record the documentary evidence.  However, it appears that the Opposite Party out of the said amount only granted an amount of Rs.2,68,203/- to the Complainant No.2 and thereby tried to avoid the claim towards the defence costs which the Complainant No.2 has really incurred.  The Opposite Party in the written statement has only contended that the Complainants may be directed to prove the details of Rs.4,75,248/- by adducing strict proof thereof.  In our view, as the complainants have produced the relevant documents in support of the claim made in the complaint, thus, the contention raised by the Opposite Party for rejection of the claim made by the complainants cannot be accepted as just and proper.  In the result we hold that the Complainants have proved that the Complainant No.2 is entitled for the balance of amounting Rs.2,07,045/- from the Opposite Party with interest @ 6% p.a. from 23/06/2010 till actual payment. The Complainants are entitled to cost of Rs.3,000/- from the Opposite Party.  In the result the following order is passed -

O R D E R

i.                    Complaint No.74/2012 is partly allowed against Opposite Party.

ii.                 Opposite Party is directed to pay Rs.2,07,045/- (Rs. Two Lacs Seven Thousand Forty Five Only) to the Complainant No.2 with interest @ 6% p.a. from 23/06/2010 till actual payment.

iii.              Opposite Party is directed to pay Rs.3,,000/- (Rs. Three Thousand Only) towards the cost of this complaint to the Complainant No.2.

iv.               The Opposite Party is directed to comply with the above order  within one month from the date of service of this order.  

v.                  Certified copies of this order be furnished to the parties.