BEFORE THE DISTRICT CONSUMER FORUM AT KHAMMAM

Dated this, the 20^th day of July, 2018

CORAM:       1. Sri. P. Madhav Raja, _{B.Sc., M.Li.Sc. LL.M.},– President

                   2. Sri. Kiran Kumar, _{B.Sc., LL.M.} – Member

C.C. No.04/2013

Between                              

B. Rajeshwara Rao, S/o. Late Parvatheesham,

Age: 56 years, Occu: Business, R/o. H.No.3-2-69/5,

Khanapuram Haveli, Balajinagar, Industrial Area,

Khammam Town and District.

                                       …Complainant

                             And

1. The Service Executive, SKI Retail Capital Limited,

D.No.5-1-193, 1st Floor, ADJ Road,

Beside R & B Office Line,

Opp: Govt. Hospital, Khammam – 507 003.

2. The Authorised Officer, SKI Retail Capital Limited,

Flat No.202, Queens Court Opp: Old Vijaya Diagnostic Centre,

Street No.19, Himayathnagar, Hyderabad – 500 029.

3. The Road Safety Club Pvt. Ltd., No.2-A, Prakasham Road,

2nd Floor, T. Nagar, Chennai- 600 017.

4. Bajaj Allianz General Insurance Company, Bombay, Pune Road

Akrudi, Pune – 411 035,

H.O. Gesco Plaza, Airport Road, Yerawada, Pune.

(Added as per order in IA.No.81/2013, dt. 24-06-2014)

5. Sri Ram City Union Finance Company Limited, Rep.by its Manager,

Wyra Road, Khammam.

(Added as per order in IA.No.38/2015, dt. 03-06-2015)

• Opposite Parties

        This C.C. is coming on before us for hearing in the presence of                Sri T. Venkateshwarlu, Advocate for Complainant; and of Sri. G. Harendar Reddy, Advocate for Opposite Party No.2,3 and 5; and of Sri. B. Gangadhar, Advocate for Opposite Party No.4; Notice of opposite party No.1 not served; upon perusing the material papers on record; upon hearing arguments and having stood over for consideration, this Forum passed the following:-

O R D E R

(Per Sri P. Madhav Raja, President)

         This complaint is filed under section 12(1) of the Consumer Protection Act, 1986. 

2.      The set of brief facts in the complaint are that the complainant is the member of Opposite Party Nos.1,2 and 3. The Opposite Party Nos. 1 and 2 are the franchisees of Opposite Party No.3, having branch office at Khammam and Regional office at Hyderabad. The Opposite Party No.3 had issued a membership certificate bearing No.1101149 dated: 21-01-2003 to the complainant. The complainant treated as Classic Holder and have an insurance coverage under personal accident insurance benefit for a period of (8) years from the date of commencement of the membership certificate. The Opposite Party No.3 had tied up with Tata LIG General Insurance Company Limited, Chennai who had issued a certificate of insurance vide its No.CLS/H0000000912. The policy is valid from 01-01-2003 to 20-01-2004 and is entitled for Rs.3,00,000/- for permanent/ temporary disability. On 29-08-2009 the complainant met with accident sustained right leg fracture. The complainant took treatment up to 12-09-2009 as in patient at Prasuna Orthopedic Nursing Home and Tarun Orthopedic and accident Care Hospital, Khammam. Thereafter he took treatment from 13-09-2009 to 23-09-2009 in different hospitals at Khammam town and spent an amount of Rs.75,000/- towards medical, clinical and extra nourishment including accidental and incidental charges. As per directions of the Opposite Party No.3 the complainant sent the claim forms and necessary documents in support of his claim to the Opposite Party Nos.1, and 2 but the Opposite Party Nos.1,2 and 3 neither paid the claim amount nor gave proper reply to the complainant. On 01-10-2009, 23-11-2009 and 27-02-2010 the complainant have send letters and Opposite Party No.2 only acknowledged it. Vexing with the attitude of Opposite Parties, the complainant got issued legal notice on 30-04-2010 demanding to pay insured amount and the said legal notice was served on Opposite Party Nos.2 and 3, notice of Opposite Party No.1 was returned as un served . The opposite parties did not come forward to comply the relief sought by the complainant. The complainant filed the complaint against the Opposite Party Nos. 1,2,3 and 4 direct to pay Rs.75,000/- towards insurance amount, Rs.1,00,000/- towards damages and Rs.50,000/- towards expenses. 

3.      The complainant filed I.A. No.81 of 2013 praying to implead and add Tata AIG General Insurance Company, Chennai and Bajaj Allianz General Insurance Company, Pune for the better justification.  The Petition against the Tata AIG General Insurance Company was dismissed as it is not necessary party because the period of Insurance was covered for 21-01-2003 to 20-01-2004. The Petition against Bajaj Allianz General Insurance Company, Pune was allowed on 24-06-2014 and the said party was made as Opposite Party No.4. 

4.      The complainant filed I.A.No.38/2015 praying to implead Sri Ram City Union Company Limited represented by its Manager, Wyra Road as a party to the proceedings, the I.A. was allowed on 03-06-2015 and Sri Ram City Union Company Limited was made as party to the proceedings as opposite party No.5.

5.      The complainant filed I.A.No.94 of 2017 furnish the documents to support his contentions from opposite party No.4 now at Chennai. The opposite party No.4 contended through his counter that the said documents are not in the office of the opposite party No.4.

6.      In support of his averments and contentions, the complainant filed the following documents, which are marked as Exhibits A-1 to Ex.A-24.

7.      On receipt of notice, the Opposite Party No.1 notice returned as left. The Opposite Party Nos.2, 3, 4 and 5 appeared through their Counsels. Opposite Party No.2 and 5 filed adoption memo adopting the Counter of Opposite Party Nos.3. The Opposite Party No.3 in his counter contended that it is a private company limited launched with an object to create risk awareness among the public. The complainant was the member of road safety club with certificate T.R.No.505897 for the purpose of insurance cover for period of (8) years. The Opposite Party No.3 is coordinating with the insurance company for providing policies to the members therefore this Opposite Party No.2 cannot be liable.  The insurance policy provided by Bajaj Allianz Insurance Company limited for the period, in which the complainant was insured, is subject to the terms and conditions of the policy of Opposite Party No.4 and the complainant is liable to satisfy the claim and Opposite Party No.3 has nothing to do with the claim of the complainant. The role of the Opposite Party No.3 is only to bring awareness among the public with regard to the Road Safety Club and make them as member of the club so as to enable them to get insurance cover from the insurance companies. In this case the Bajaj Allianz Insurance Company, Chennai provided the policy and contract is formed between the complainant. In case if insurance company does not act a remedy, for which the complainant is to proceed against the insurance company, but not against this Opposite Party No.3.  The Opposite Party No.2 received claim form along with documents which were furnished by the complainant to settle the claim and also membership certificate which was acknowledged and the same was forwarded to the Bajaj Allianz General Insurance company limited on 27-02-2010. The Bajaj General Insurance company limited issues group personnel accident policy specifically mentioned the name of each member. It is held in F.A.191/2009 before Hon’ble National Commission, New Delhi, which had given liability only on Insurance Company and exonerated the Road Safety Club from the liability. There is a specific mentioning with regard to provisions of the arbitration that  Road Safety Club/Opposite Party No.3 will appoint Arbitrator to settle any disputes arose and would have settled before the arbitrator. Therefore the complaint may be dismissed with exemplary costs in the interest of justice.

8.      The opposite party No.3 have filed Receive document petition with I.A.No.9 of 2014 and filed documents in support of their contentions, the petition was allowed and marked as Ex.B-1 to Ex.B-4. The Opposite party No.3 further filed another I.A No.68 of 2016 through which filed document which is marked as Ex.B-5.  I.A No.50 of 2018 filed along with a document which is marked as      Ex.B-6.

9.      The Opposite Party No.4 filed the counter and contended that there is no deficiency of service on the part of them. The complainant has got no locus standi to file the complaint as got no cause of action to file against the Opposite Party No.4. The Opposite Party No.4 admits to the extent of issuance  of personal accident policy to the insured vide policy bearing No.OG-09-1501-9961-00136778 valid from 17-07-2008 to 16-07-2009, whereas the alleged accident took place on 29-08-2009 i.e. very much after expiry of policy as such the Opposite Party No.4 has no contract at the time of accident with the complainant. The complaint put to strict proof as to establish the allegation of the claim and had not annexed any documentary proof to establish the intimation.  Initially the complainant has filed above case against the Service Executive, SKI Retail Capital Limited, the Authorized Officer, SKI Retail Capital Limited, Hyderabad and Road Safety Club Private Limited, Chennai as Opposite Party Nos.1,2 and3. Thereafter the complainant filed impleading Petition to add the opposite Party No.4.  The complainant did not file any proof of document to show that at the time of accident, as the policy of Opposite Party is covered and he did not discharge his duties of prima facie to prove the case against the Opposite Party No.4, without covering the policy from the date of accident. The complainant impleaded the Opposite Party No.4 to get wrongful gain. Therefore the Opposite Party No.4 is non joinder to the claim of the complainant and there is no case against the Opposite Party No.4, as such the complaint is liable to be dismissed.

10.    Further the Opposite Party No.4 was filed another Counter after carrying out amendment on 31-03-2015, with the similar contents as filed earlier.

11.    In support of Opposite Party No.4 averments and contentions filed the documents in I.A. No. 50 of 2018 along with a counter in I.A which is marked as Exhibits B-7 and through another I.A.No.51 of 2016 filed a document which is marked as Ex.B-8.

12.    Opposite party No.4 filed written arguments and heard the arguments of complainant and opposite party No.3 and 4.

13.    Upon perusing the material papers on record, now the points that arose for Considerations are,

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

Point No.(i): 

It is evident through the exhibit A-2 that the complainant is the member of Opposite Party No.3. The complainant being member of Opposite Party No.3 had issued a membership certificate bearing No.1101149 dated: 21-01-2003 to the complainant and treated as Classic Holder and have an insurance coverage under personal accident insurance benefit for a period of (8) years from the date of commencement of the membership certificate. On 29-08-2009 the complainant met with accident and sustained right leg fracture and taken treatment up to 12-09-2009 as in patient at Prasuna Orthopedic Nursing Home and Tarun Orthopedic and accident Care Hospital, Khammam. The opposite party No.3 has made the complainant to claim with one time with opposite party No.5 and another time with TATA AIG insurance company and lastly  with  opposite party No.4 thus keeping the complainant in confusion state by not providing the correct insurance company details. The opposite party No.4 admits to the extent of issuance  of personal accident policy to insured vide policy bearing No.OG-09-1501-9961-00136778 valid from 17-07-2008 to 16-07-2009, but contended that the alleged accident took place on 29-08-2009 i.e. very much after expiry of policy. At the time of accident the Opposite Party No.4 has no contract with the complainant. After filing I.A.No.94 of 2017 by the complainant for furnishing the documents to support his contentions from opposite party No.4 now at Chennai the opposite party No.4 contended through his counter that the said documents are not in the office of the opposite party No.4 and process the claim of the petitioner without filing policy copy is not possible and they cannot trace out the said documents. The policy furnished by the opposite party No.3 i.e. Ex.B-6 does not match with the opposite party No.4 filed Ex.B-8. As per Ex.B-7 document which is filed by the opposite party No.4 the policy bond i.e. Ex.B-6 lost the validity and holds no value. The Ex.B-7 reveals that “as  per records  the arrangement came to an end from September 2008 and at that time necessary software has been sent to all our locations to cease the issuance of certificate of insurance, however form your statement it appears that some of the locations had not executed the necessary program in the system probably resulting in erroneously issuing certificate of insurance even after the termination of the arrangement and in case of  any claims under such erroneously issued cases SKI  shall be taking the liability based on the merits of the case” .  Here it is clear that in case of nonpayment of insurance amount of the members the opposite party No.2 will pay the said amount. The opposite party No.4 relied on the order of the District consumer Forum Ananthapur in C.C.No.54/2012 wherein it is observed that in case of erroneously issued cases SKI shall be taking the liability, as the cease is effective since September 2008, the liability also ends there on. The opposite parties 1 to 3 and 5 have failed to content the complainant by giving right party with whom the insurance policy lies. The complainant had send the claim form through opposite party No.1 on the directions of the opposite party No.3 thus the opposite party No.1 to 3 have not served  properly and made him to run pillar to post which amounts to the deficiency of service. The opposite party No.3 cited order is not relevant as the opposite party No.3 without giving proper documents and correct insurance companies details cannot be exonerated and as burden lies on them.  They cannot take the advantage of the Hon’ble National commission order. This forum relies on the order of the Hon’ble AP state Commission wherein FA No.506/2015,  II (2018) CPJ 46 (AP) observed that

                     “Liability of felicitator for securing policies to their members- jointly and several liability –Alleged deficiency of service- Appellant No.2 - Road safety club itself as policy holder and late “TN” is shown as insured member – Appellant No.2 did not intended to have  a restricted role a felicitator in obtaining policies to its members- In membership certificate it is mentioned that Insurance company would be solely liable for any claims and members should not hold them responsible for any matter arising out of or in connection with insurance cover – this condition would bind insured provided he is aware of same - appellant must prove that documents containing said conditions were served on the insured- No such condition has been attached to his membership- District forum has given valid reason for passing order ”.  

The opposite party No.3  have failed to carry out their responsibility and nowhere in the policy bond the opposite parties have mentioned the details clearly and even with whom the insurance is covered. In common parlance it is very difficult for a lay man to understand the language and miniature and complex text in the proposal / Policy terms and conditions. The opposite party No.2 and 5 have filed adoption memo adopting the counter and contentions of opposite party No.3. The opposite parties No.2 and 5 are failed to prove that how the contents of opposite party No.3 is relevant and how they are related and under what contract they are bound. The opposite party No.3 has failed to explain the relation and contract between the said parties and have lapses in serving the policy to the complainant. In the above stated circumstances opposite party No.3 has erroneously issued insurance certificate to its member. As per Ex.B-7 the opposite party No.1 and 2 shall take the liability as they erroneously issued certificate and opposite party No.4 does not have any liability. Hence we are of view that the opposite parties No.2, 3 and 5 are liable and have to compensate the complainant with insured amount. The opposite party No.1 is a branch of opposite party No.2 and as per the returned notice it has observed that the opposite party No.1 has left hence the complaint is dismissed against it. The point is answered accordingly in favour of the complainant.

Point No. II:-

It is admitted fact that the complainant was sustained leg injury and took treatment as in patient and out Patient. As per the Ex.A-2 i.e. the certificate issued by the opposite party No.3 the said policy is covered with temporary disability and the EX.B-6 which is filed by the opposite party No.3 is not clear and the terms and conditions are not in full text therefore taking the medical bills, doctor and nursing costs filed by the complainant in to consideration we are in view that the complainant is entitled for and an amount of Rs.34,965.51/- towards the insured amount to be paid, along with Rs.5,000/- towards mental agony and Rs. 2,000/- for costs of litigation.

14.    In result the complaint is allowed in part directing the opposite parties No.2, 3 and 5 jointly or severally to pay sum of Rs.34,965.51/- towards the Medical expenses, and also Rs.5,000/- towards mental agony and Rs. 2,000/- for costs of litigation within 30 days from the date of this order to the complainant. In the event of failure to comply with the order in payment the amount shall carry interest @ 9% p.a. from date of complaint to till its realisation.The complainant against opposite party No.1 and 4 is dismissed.

(Dictated to the Stenographer, transcribed by her, corrected and pronounced by us in the open Forum, on this the 20^th day of July, 2018).

                                                     Member                            President

                                                                    District Consumer Forum 

                                                                               Khammam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:-

For Complainant                                                    For Opposite parties  

       None                                                                          None

DOCUMENTS MARKED:-

For Complainant                                                    For Opposite parties

                                                       Member                         President

                                                                    District Consumer Forum  

                                                                               Khammam.