(Per Shri Narendra Kawde, Hon’ble Member)
(1) This complaint has been filed by Metropolitan Institute And Research Centre (India) Ltd., which is a limited company duly registered under Companies Act and engaged in providing cardiac related super specialty facilities (hereinafter to be referred to as “complainant company”) alleging deficiency of service on the part of opponent United India Insurance Co. as the insurance claim is wrongly repudiated in respect of damage to insured X-ray machine tube.
(2) Salient facts in nutshell giving rise to complaint are that the complainant company set up “Siemens Axiom Artis Cath Lab System” in the complainant’s premises and insured the Cath Lab system by availing Electric Equipment Policy No. 020600/44/05/30005 issued by the opponent, United India Insurance Co.Ltd. (hereinafter to be referred to as “opponent Insurance Company”) for the sum assured of `2,15,00,000/- providing insurance cover to all the laboratory set up including the x-ray machine having tube. First time, it was noticed during the validity period of said Electric Equipment Policy that the error was found on 31/03/2006 while doing angiography in the Cath Lab through X-ray machine. This was brought to the notice of Siemens Services Department and they found that there was problem in the x-ray tube and advised replacement of the said tube and accordingly submitted invoice together with report dated 01/03/2006. The Siemens Services Deparment quoted the cost of replacement of said tube to the tune of `26,62,562/-. Since the error was detected and noticed in the tube during the currency of said insurance policy, the opponent Insurance Company was informed by the complainant company about factual situation. As the warranty period had expired the original manufacturer i.e. Siemens Company refused to give any concession to replace the tube therefore, the complainant company was left with no option but to lodge the claim with the opponent Insurance Company.
(3) It is alleged by the complainant company that one Jaykanthan as a surveyor on behalf of the opponent Insurance Company visited the complainant’s company laboratory premises, drawn the survey report without any intimation to the complainant company and submitted his report to the opponent Insurance Company. Thereafter complainant company submitted claim of `26,62,562/- towards cost of damage of x-ray tube. The opponent Insurance Company repudiated the claim on the ground that x-ray tube has already exceeded the limit of exposures of 40,000 as on the date of incident and as per the terms and conditions of the policy, the opponent Insurance Company is not liable to reimburse the cost for replacement of x-ray tube. This repudiation was based on the survey report and recommendation of the surveyor appointed by the opponent Insurance Company and terms & conditions of the policy.
(4) It is the contention of the complainant company that as per the terms and conditions of the insurance policy supplied to them and annexed to the complaint as Ex.B that there was no such condition of limiting number of exposures of x-ray tube insured under Electric Equipment Policy and therefore repudiation of claim is unjustified. The complainant company strongly contested that the terms & conditions brought on record by the opponent insurance company were never supplied to them and the terms and conditions received by them along with insurance policy did not refer to alleged conditions of number of exposures of x-ray tube and contended that the conditions stipulated by the opponent Insurance Company were never supplied to them and filed affidavit in support of their contention.
(5) The opponent Insurance Company filed written version and affidavit of evidence contending and denying the complaint on all possible counts and submitted that as terms and conditions of the Insurance Company does not provide for reimbursement of the cost for damage of the x-ray tube when the exposures of the x-ray tube are more than 40,000/- as these are the electronics goods. In the instance case, as per the survey report, the said x-ray tube had 61,260 exposures as on 31/03/2006 which are more than 40,000 exposures as stipulated in terms & conditions appended to the Insurance policy and further stated that these terms & conditions were supplied to complainant company alongwith policy as per standard office practice. The opponent Insurance Company submitted affidavit stating that all the terms and conditions brought on record by them have been fully supplied to the complainant company and the complainant company has deliberately failed to produce the terms & conditions supplied to them along with the complaint to mislead the Commission. As such the concealment on the part of the complainant company is violation of the terms & conditions of the insurance contract which is governed by principle of ‘utmost good faith’.
(6) There is no denial of the fact that the complainant company subscribed Electric Equipment Policy No. 020600/44/05/30005 to provide the insurance cover to entire laboratory equipment including the x-ray machine with tube. The error was noticed in the x-ray tube while conducting angiography on 31/03/2006 during validity period of insurance policy. It is an admitted fact on the record that the said x-ray tube was exposed for more than 40,000/- times (61,260 times). As the x-ray tube went out of order after the warranty period, therefore, the manufacturer namely, Siemens Company refused to replace the tube ‘cost free’ and instead submitted the estimate of `26,62,562/-for replacement of the tube to make x-ray machine functional.
(7) Heard learned counsels for the parties. The learned counsel for the complainant company pleaded that the terms & conditions received by the complainant company along with policy documents have been produced on the record and appended to complaint which ends at ‘warranty’ clause and does not stipulate further as to coverage of insurance policy based on number of exposures of the x-ray tube as contended by the opponent Insurance Company. The entire Cath Lab was insured under the tailor-made Electrical Equipment Insurance Policy. The policy originally issued by the opponent Insurance Company does not bear the same number as can be perused from the documents produced by the opponent Insurance Company. There is variation in the original number and number produced in letters on the record. All efforts to keep x-ray machine functional were made and since warranty period expired, manufacturer i.e. Siemen Co. refused to replace damaged tube ‘cost free’ and only on instruction of opponent Insurance Company, verification report with estimate to replace tube was obtained from Siemens Co. The learned advocate for the opponent Insurance Company submitted that during the shifting of the opponent insurance company’s regional office there were problems to retrieve the data from the computer. Policy numbering in the new software system i.e.Core System is having 20 digits whereas policy in question which was issued under GENISHI System is having 15 digits and submitted that earlier policy number i.e. 30005 has been changed to 30000005 just to make the total as 20 digits. In support of this contention, they have submitted that certain old policy number bearing the new number in the Core System and pleaded that in view of the software system, the digit number of the policy has been changed but all other features with terms & conditions of the policy remained unchanged. In support of this, as stated by the learned counsel for the opponent Insurance Company filed an affidavit together with certain number of other policies issued by them and pleaded that the entire policy along with terms & conditions as on record had been supplied to the complainant company. Further submitted that there is no reason as to why only a part of the terms & conditions had been supplied at time of issuing the insurance policy. There is no evidence on record to show that the complainant company made any representation to receive full and complete terms & conditions of the policy. The complainant company has not made out the case to establish that they were not supplied full terms & conditions under the policy. It was further pleaded that terms & conditions filed by the complainant along with the complaint are prior to issue of TAC circular in the year 2001. The survey report is factual. The number of exposures mentioned in claim has not been disputed. There is no reason to disbelieve that the entire set of terms & conditions of the insurance policy including terms & conditions in respect of x-ray tube was not received by the complainant company.
(8) We have perused the record and documents tendered by the parties. The complainant company filed affidavit denying receipt of terms & conditions produced on record by opponent Insurance Company. Opponent Insurance Company denied the contention on affidavit and averred that the complete set of terms & conditions was dispatched with insurance policy and further stated that there is no practice to send only part conditions to the insured. Denial and rebuttal of the parties is ‘on oath to oath’. In absence of any other documentary evidence of the complainant company to support the contention, it is difficult to disbelieve the opponent company’s version of supplying terms & conditions with policy as on record (Exhibit B) as a standard practice. As regards the digital change in the policy number due to change of software system, the opponent Insurance Company has filed affidavit in support of it. Therefore, submission of the learned counsel for the complainant company about change in policy number is not acceptable as it is only digital addition in policy. The opponent Insurance Company has submitted to clarify the digital change in the number of policies issued by them to various policy holders. We are left with no option but to rely on the policy terms submitted on record by the opponent Insurance Company. The policy conditions clearly states that x-ray tube though covered under policy terms & conditions under the clause COVER OF VALVE AND TUBES provides stipulation as under:-
Number of exposures | Actual value in % of new replacement value |
Less than 10,000 | 100 |
Less than 12,000 | 90 |
Less than 14,000 | 80 |
Less than 16,000 | 70 |
Less than 19,000 | 60 |
Less than 22,000 | 50 |
Less than 26,000 | 40 |
Less than 30,000 | 30 |
Less than 35,000 | 20 |
Less than 40,000 | 10 |
More than 40,000 | 0 |
(9) As such x-ray tube had more than 40000 exposures as on crucial date i.e. 31/03/2006, policy terms & conditions will attract ‘0’ replacement value. Therefore, going by this logic, the said damaged x-ray tube will fall under this category and as contended, opponent Insurance Company will not be responsible for replacement cost as claimed by the complainant company. In the circumstances, the repudiation of the claim by the opponent Insurance Company can not be faulted with as there is no arbitration. In the facts & circumstances, we find that the complaint is devoid of merit. We hold accordingly and pass the following order.
ORDER
(1) The complaint stands dismissed.
(2) In the given circumstances, parties to bear their own costs.
Pronounced on 2nd March, 2012.
