(Passed this on 31^th January,  2017)

Shri. S.P. Muley, President –

1.     This complaint is against an insurance company for not granting claim in respect of repair expenses of an X-Ray machine.

2.     The complainant is M/s Khemka X-Ray & Ultra Sound Clinic of which Dr. Sanjay Khemka is the propritor. Dr. Khemka  runs the said clinic to earn his livelihood. The O.P. 1 is New India Assurance Company and O.P.2 is Claim Hub of the said insurance company. The complainant had taken Doctorś Protection Shield Policy from the O.P. 1 for his clinic. Under the said policy Digital X-Ray machine with 2 Computers with camera CR system model amongst other articles was insured. The policy was in force from 30/7/2009 to 30/7/2010 and assured sum was Rs.18,15,001/-. The O.P. 1 provided him the policy certificate but failed to provide its terms and conditions. When the complainant received the policy, he was surprised to see the Drystar 5302 was not insured, but Digital X-Ray machine with 2 computers with camera CR system model No. 5200 was insured. He therefore immediately informed the O.P.1 that wrong machine was insured. He was told that long back it had received intimation to insure Drystar 5302 along with LR 5200, but the computer was not accepting the detail. The complainant was assured not to worry as the premium was assessed on valuation of Drystar 5302.

3.     While the policy was in force, some problem started to crop up in Thermal Head of Drystar 5302. On 11/5/2010 he informed the O.P.1 about non functioning of Drystar 5302. The O.P. 1 then appointed M/s Sandip Mashru & Co. to assess loss of the said machine. On the say of OP1 the complainant gave quotation of Rs. 1,80,236. 06/- through service engineer Falke. He then submitted the claim with quotation to the O.P.1. On 25/8/2010 the O.P. sent him a letter informing that the damaged machine did not match with the description of the machine which was insured and it appeared that a new machine was taken by changing the insured machine. The complainant next day informed the O.P. that he had supplied the list of all machineries to its office. On 25/11/2011 the O.P. repudiated his claim on the ground that the O.P. was not informed about change of insured machine. In fact, he had intimated about change of machine on 5/9/2008 and it was acknowledged by it and new machine was insured under the old policy. The cost of new machine was Rs. 16 lakh, when old machine was insured for Rs.24 lakh. But without justified reason the OPs repudiated his claim of Rs.1,80,236/- and thus guilty of deficiency in service. Hence, he has claimed Rs. 1,80,236/- with 12% interest along with compensation and cost.

4.     The OPs filed reply and admitted the policy of the complainant. But it is denied that he had insured the X-Ray machine Drystar 5302. Instead he had insured machine model no. 5200. No intimation of change of insured machine was given to it. The surveyor has informed that the insured machine was changed with new machine. The machine which had problem was never insured with the O.P., therefore there is no wrong in repudiating the claim in respect of such new machine. Besides, he has claimed full amount of the machine, when depreciation and salvage have also to be considered to assess the claim. Hence, the claim was improper. The surveyor, nevertheless, has given assessment of the new machine and accordingly after 5 years depreciation and under insurance the loss has been assessed at Rs.71,112.86/-. Denying the claim, it is submitted to dismiss the complaint.

5.     Heard Ld counsels for both the sides. Perused the documents, notes of argument and citations. We record our findings and reasons as under.

FINDINGS  AND  REASONS

6.     We have perused the policy for the period 31/7/2008 to 30/7/2009 and under the said policy X-Ray machine with model no. 5200 was insured. In next year policy 31/7/2009 to 30/7/2010 also the machine with same number was insured for Rs.16 lakh. In next year also same model no. of machine was insured, but for Rs. 20 lakh. The problem in the machine started from 26/4/2010 when second year policy was in force. In the first year the machine cost was declared at Rs.24 lakh and next year it was Rs.16 lakh. There was depreciation of Rs. 8 lakh in one year. We are rather surprised to note such high depreciation in one year. Ld counsel for the complainant submitted that the machine was changed from model no 5302 to 5200 and its intimation was given to the O.P. on 5/9/2008 and its acknowledgment was also given. Its copy is filed on record, which has been denied by the O.P. as manipulated. In fact, it bears seal of the O.P. office. Ld counsel for the O.P. submitted that there is no inward number and every receipt of letter or paper by the O.P. office bears inward number. Therefore this document is said to be manipulated document. The seal appearing on it, however, is not said to be bogus. What is challenged is absence of inward number on it. But it is difficult to presume the document to be bogus one. The complainant is a busy doctor and generally doctors do not go to Insurance office to insure their hospital or machines or equipments. Such work is either entrusted to some other person or agents of insurance company. The fact that the machine was changed in August 2008 can be verified from the letter sent by the its manufacturer to the complainant on 9/6/2010. In that letter it is clearly mentioned that the machine with No. 5302 was exchanged in August 2008. Since it was exchanged, some concession in the cost was given, excluding taxes. When the complainant could insure the first X-Ray machine with model No. 5200 by paying premium, he must have insured the exchanged machine. It is to be noted that he is not asking any amount for earlier machine. When machine was exchanged, the old one with No.5200 must have been  taken away by the company. So there must be only one X-Ray machine of that category with him. Therefore it could be inferred that the complainant must have intimated the O.P. about exchange of machine on 5/9/2008.

7.     Ld counsel for the complainant has particularly relied on one judgment in M/s Real Ispat And Power Ltd. v/s Oriental Insurance Co. Ltd 2016 (3) CPR 431 (NC). In that case the complainant had availed general insurance which covered electrical transformer installed in the factory. It was broke down and claim was made. But the Insurance company repudiated the claim on the ground that the transformer number mentioned in the policy was 90P06002, whereas the transformer actually damaged was bearing No. 99P0G002. While allowing the complaint, it was observed that discrepancy in number of transformer occurred due to clerical mistake and negligence which was totally inadvertent and so claim could not be denied on technical discrepancy.

8.     While it cannot be denied that the X-Ray machine which was insured was not same which was damaged, it is to be noted that the complainant has only one digital X-Ray machine with 2 computers with camera CR system. It is nobodyś case that there was any other digital X-Ray machine with 2 computers with camera with the complainant. The claim was repudiated on the ground of technicality that the machine number mentioned in the policy and the actual number differ slightly. No dishonest intention has been attributed to the complainant by the O.P. The complainant has been paying premium regularly. Therefore, though the damaged machine was not insured, still premium on the exchanged machine was being paid and accepted every year. The complainant did not claim any amount for the machine which is mentioned in the policy schedule. Therefore, merely on technical ground the claim should not have been repudiated.

9.     The surveyor appointed by the O.P. has assessed the loss of the machine, though it was not mentioned in the policy. Accordingly after deduction towards depreciation, under insurance and excess, the net loss payable was quantified at Rs. 71,112.86/-. The complainant has not challenged the assessment. The machine was exchanged in August 2008 for Rs. 4.50 lakh and it was damaged in April 2010, which means expired life of the machine was 1 year and 8 months. The report of surveyor could become the basis for settlement of a claim by the insurer in respect of loss suffered by the insured. The report is to be given due importance and there is no sufficient grounds to dis agree with the assessment made by the surveyor. As such, the complainant is entitled to be indemnified as per the assessment done by the surveyor. The complaint is accordingly allowed, hence the following order.

ORDER

1. The complaint is partly allowed.
2. The O.P. 1 and 2 jointly and severally shall pay the amount of Rs.71,113/- to the complainant with 9% interest from the date of repudiation of the claim.
3. The O.P. 1 and 2 jointly and severally shall also pay compensation of Rs. 8,000/- for mental and physical harassment and Rs.3,000/- for litigation cost to the complainant.
4. The order shall be complied within 30 days from receipt of the order copy.
5. Copy of the order shall be given, free of cost, to both the parties.