Case No. FA-08/158

(Arising from the order dated 10-01-2008 passed in complaint case No. 771/2004 by the District Consumer Redressal Forum – VI, K.G. Marg, New Delhi).



CHOLAMANDALAM MS GENERAL INSURANCE

COMPANY LIMITED -APPELLANT

Regional Office Kanchenjunga Buidling,

9th Floor, Barakhamba Road,

New Delhi – 110001



Versus



SURESH CHAND BISHNOI -RESPONDENT

R/o 10, Partap Road,

Dheeraj Block, South Ganesh Nagar,

Delhi - 110002

CORAM :
JUSTICE BARKAT ALI ZAIDI - President

SHRI M.L. SAHNI - Member



1. Whether reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?



JUSTICE BARKAT ALI ZAIDI (ORAL)



ORDER



1. The short facts of the case are that the car of the complainant which was insured with the OP Insurance Company from 04-10-2003 to 03-10-2004 for an amount of Rs. One lakh was stolen away during the intervening night of 06/07-10-2003 and an FIR of the incident of theft was lodged with the Police without loosing any time. The complainant filed a claim for reimbursement of the amount insured which the OP Company denied. The complainant therefore filed a claim case before the District Consumer Forum which the OP opposed by filing the written statement alleging that the complainant obtained the Policy collusively with the help of Shri Surjeet Singh Johar an employee of the agent of OP company.



2. The District Forum after considering the evidence and hearing the parties overruled the objection of the OP and held the OP deficient in service and directed the OP to pay, Rs. One lakh to the complainant after obtaining an undertaking from complainant that in the event the stolen car is found, he will have no claim for that and Rs. 40,000/- towards compensation and Rs. 10,000/- towards costs of litigation.



3. That is what brings the OP appellant Insurance Company in appeal before this State Commission.



4. We have heard Shri A.K. Sigh, Counsel for the appellant and Shri Maroof Khan Counsel for the respondent complainant.



5. The contentions of the appellant insurance company are ambiguous and incoherent. In a nutshell what they appear to say, is, that the agent of the Insurance Company, Shri Surjeet Singh colluded with the respondent and betrayed the Insurance Company.



6. In the first place no case of fraud against the agent Shri Surjeet Singh seems to have been made out because the insurance policy bears signature of the authorized officer of the Insurance Company and it must be assumed, he signed the same, after satisfying himself about all the relevant particulars. The Insurance Company therefore cannot escape liability on this ground.



7. Even assuming that the agent Shri Surjeet Singh conspired with the respondent in the finalization of the insurance cover, the insurance company cannot escape the liability of the act of it’s agent. If there was some shady matters, they have to be confined between the agent and the insurance company and will have no repercussion on the insured third party.



8. There is no scope for doubts and apprehensions about the theft of the car because the FIR was duly lodged and the Police did not find that the report was false. The bonafidees of the respondent complainant in the allegation about the theft need not therefore, be doubted.



9. The whole defence of the appellant OP insurance company is not only irrelevant, but farcical and deserves to be dismissed outright.



10. Appeal dismissed.



11. Bank Guarantee/FDR, if any, be returned to the appellant after completion of due formalities.



12. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.

13. Announced on 14th December 2009.

Appeal No. 7/2009

Date of Decision 11.1.2010.

In the matter of:
Kahan Singh son of late Shri Saktu Ram R/o VPO Dharampur,

Tehsil Sarkaghat, District Mandi, HP.

… … Appellant.

Versus
Cholamandlam Investment Finance Company Ltd., through its

Branch Manager Branch Office VPO Gutkar Tehsil Sadar, District Mandi, HP.



… … Respondent.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.

Whether approved for reporting? Yes.



For the Appellant.: Mr. Rajpal Thakur, Advocate vice counsel

Mr. Abhishek Lakhanpal, Advocate.

For the Respondent. Mr. Arvind Sharma, Advocate.

O R D E R

Per Mr. Chander Shekher Sharma, Member.

This appeal is directed against the order passed by District Forum, Mandi, in Consumer Complaint No. 45/2008, decided on 11.12.2008 whereby the complaint of the appellant was dismissed with no orders as to costs, by reserving the liberty to him to approach the civil court.

2. Facts of the case as they emerge from the record are, that appellant had got financed his vehicle, (Tempo Trax) No. HP-65-0519 from the respondent. As per schedule of agreement, the appellant was to re-pay the financed amount with interest etc. in 36 equated monthly installments of Rs. 10,626/- to the respondent. Further averments in the complaint are, that despite making payment of all the installments to the respondent, the appellant asked for the release of the vehicle from hypothecation and to issue the No Objection Certificate (NOC).



3. In this background, complaint under Section 12 of the Consumer Protection Act, 1986 was filed by the appellant alleging deficiency of service on the part of the respondent.

4. Respondent when put to notice resisted and contested the complaint, and its plea was that there was no deficiency of service on its part since the full payment of the installments has not been paid by the appellant. As according to it, there was default of payment and Rs. 39,532/- was still payable by him. As such question of issuing NOC in favour of appellant does not arise.

5. Appellant in the present case has filed his own affidavit in support of the complaint, besides documents. These copies of letter issued by Sanghi Hire Purchase Ltd dated 11th October, 2006 and 12th May, 2007, and receipts Annexures C-1 to C-17. Appellant has also filed rejoinder to the complaint wherein he had reiterated the stand taken by him in the complaint.

6. Respondent in support of its case filed affidavit of Mr. Hitender in support of its defence.

7. We have heard learned counsel for the parties and have also gone through the record of the case file minutely.

8. Mr. Raj Pal Thakur, learned counsel for the appellant argued, that all the 36 installments have been paid by his client and there is nothing due and payable by his client. Thus non-issuance of NOC by respondent in the present case despite repeated requests made to it was a clear cut act of deficiency of service on its part. Mr. Arvind Sharma learned counsel for the respondent argued that since there was default in the payment of the installments to the tune of Rs. 39,532/- by the appellant, as such his client rightly did not issue the NOC. He thus prayed for upholding the impugned order.

9. After hearing the learned counsel for the parties, as well as after going through the record of the case, we are satisfied that the order of the District Forum below does not suffer from any infirmity. Reason being that in the present case, it is manifestly clear from the record that the appellant in support of his case has to lead evidence regarding liquidation of 36 agreed installments. He has not filed any acceptable evidence to this effect. Simple averments in the pleading will not take the place of proof. Even the loan agreement entered into between the parties has not placed on record by both the parties. Even if we ignore the statement of accounts filed by the respondent in the present case which is at pages 47 to 51 of the complaint file, still the appellant who pleaded full payment was to prove this fact. Even the receipts, Annexures C-2 to C-17 which have been filed on record depict that in all 20 installments were paid by the appellant. And as already held, liquidation of all the agreed installments has not been proved by the appellant. As such in our opinion, the respondent has rightly withheld the NOC. We may point out that District Forum below had not correctly applied the decision of the National Commission, of Vishal Roadways Vs. Economic Traders (Gujarat) Ltd., 1998 NCJ (NC) 539, as its ratio was wholly inapplicable to the facts of the present case. Appellant failed to prove full payment of the outstanding amount the case set out by him, so there was no question of dispute between the parties relating to accounts.

10. What fall from this is that this is not a case of deficiency of service on the part of the respondent as alleged by the appellant. Above all the learned counsel for the appellant could not point any evidence in support of the case set out by his client in the complaint.

11. No other point was urged.

In view of the aforesaid discussion, we find no reason to interfere with the well reasoned order passed by District Forum, Mandi in Consumer Complaint No. 45/2008, decided on 11.12.2008 and the same is upheld, leaving the parties to bear their own costs.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.

CC. No. 154 of 10-07-2009

Decided on : 10-11-2009

Labh Singh S/o Pirthi Singh R/o H. No. 126 Street No. 3, Bank Colony, Bathinda.

.... Complainant

Versus


1.

Cholmandalam MS General Insurance Co. 132/3,1st Floor, K L Plaza, Rani Jhansi Road, Civil Lines, Opp. DIG Residence, Ludhiana through its General Manager.
2.

Cholmandlalm, DBS Finance Ltd., near Clock Tower Building, Bibiwala Road, Bathinda.

... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.
QUORUM

Sh. George, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member

For the Complainant : Sh. Sandeep Singh Jeeda, counsel for the complainant.
For the Opposite parties : Sh. Vinod Garg, counsel for opposite party No. 1
Opposite party No. 2 exparte.
O R D E R
GEORGE, PRESIDENT
1. The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against the opposite parties with the allegations that he is owner of one General Motor Tavera bearing registration No. PB-03R-9139. The said vehicle is financed by opposite party No. 2 and opposite party No. 2 got it insured from opposite party No. 1 vide Cover Note 7396898 for the period from 26-12-2008 to 25-12-2009 and premium amount of Rs. 20,979/- was charged from the complainant. The said vehicle met with an accident on 28-01-2009 and was damaged. The complainant gave intimation of the accident to the opposite parties and also submitted the claim alongwith bills for repair and other expenses amounting to Rs. 1,10,000/-. The opposite parties declined his claim on the ground that driver of the said vehicle was not holding valid driving licence at the time of accident whereas Chamkaur Singh, who was driving the vehicle at the time of accident is having valid driving licence. The complainant submitted that he approached the opposite parties many a times and requested them to pay his claim but they refused to make the payment on false ground. It is settled provision of law that the expiry of licence is not violation of terms and conditions of policy if it got renewed. He seeks directions from this Forum to the opposite parties to release his claim amount alongwith interest @ 24% P.A. from the due date till realisation and to pay him compensation for mental tension and harassment.
2 The opposite party filed No. 1 filed reply taking legal objections that complaint has been filed only to injure the goodwill and reputation of replying opposite party; the complainant has concealed material facts and documents; intricate questions of law and facts are involved which require voluminous documents and evidence for determination which is not possible in the summary procedure under the 'Act'; complainant is not consumer; he has no locus standi or cause of action; complaint is not maintainable and there is no deficiency in service on the part of replying opposite party.

On merits, It is admitted that the vehicle of the complainant was insured with the replying opposite party vide Insurance Policy No. 3362/00340552/000/00 for the period from 26-12-2008 to 25-12-2009. The vehicle met an accident on 28-01-2008 and opposite party No. 1 deputed surveyor Mr. Dinesh Kumar Goyal to assess the loss who conducted the survey of the vehicle on 31-01-2009 at M/s. Asian Motors, Bathinda and assessed the loss to the tune of Rs. 40,609/- vide his survey report dated 18-02-2009. It has been specifically denied that complainant is entitled to claim Rs. 1,10,000/-. It is submitted that in the claim form the complainant had submitted and mentioned about the driving licence No. 2624 with the date of issue 20-06-2005 to 09-06-2009 from Bathinda in the name of Chamkaur Singh alleged driver at the material time of accident i.e. 28-01-2009. The opposite party No. 1 got the said driving licence verified from the office of the Licensing authority through Sh. Dinesh Kumar Goyal, Surveyor, which revealed that the same was valid only from 10-06-2005 to 09-06-2008. Since the driver of the vehicle in question was not holding valid driving licence on the date of accident i.e. 28-01-2009 and there was violation of terms and conditions of the policy and also the provisions of Motor Vehicle Act, 1988, the claim of the complainant was rightly repudiated vide letter dated 31-03-2009.
3.

Notice of the complaint was sent to opposite party No. 2 through registered post but despite service, none appeared on its behalf and as such, exparte proceedings were taken against it.
4. In support of his averments contained in the complaint, the complainant has produced in evidence his two affidavits Ex. C-1 & Ex. C-3, affidavit of Chamkaur Singh Ex. C-2, photocopy of R.C. of vehicle Ex. C-4, photocopy of Insurance Cover note Ex. C-5, photocopy of Driving Licence of Chamkaur Singh Ex. C-6, photocopy of letter dated dated 31-03-09 Ex. C-7 and photocopy of compromise letter Ex. C-8.
5.To controvert the evidence of the complainant, the opposite party No. 1 produced in evidence affidavit of Rakhi Anand, Authorised Signatory/Manager (Legal) Ex. R-10, affidavit of Dinesh Kumar Goyal, Surveyor Ex. R-9, photocopy of Schedule Motor Policy Ex. R-1, photocopy of premium computation table Ex. R-2, photocopy of Motor Insurance Claim Form Ex. R-3, photocopy of DDR Ex. R-4, photocopy of Motor Survey Report Ex. R-5, photocopy of motor survey report assessment sheet Ex. R-6, photocopies of letters dated 27-03-09 and 26-03-09 Ex. R-7 and Ex. R-8 respectively.
6.After hearing the learned counsel for the parties and going through the entire record of the case, it appears that the parties have no dispute with regard to the Insurance of the vehicle which was valid from 26-12-2008 to 25-12-2009. There is also no dispute that the said vehicle met with an accident on 28-01-2009 and was damaged. The complainant gave intimation of the accident and also submitted bills for repairs and other expenses. The opposite parties have repudiated the claim of the complainant vide their letter dated 31-03-2009 Ex. C-7 on the ground that the driver of the vehicle at the time when it met with an accident on 28-01-2009 was not holding an effective and valid driving licence and for that reason, the complainant has committed a serious breach of the driver's clause contained in the Insurance policy apart from violation of the provisions of the Motor Vehicle's Act.
7.

After going through the entire record of the case, it reveals that Sh. Chamkaur Singh was driving the vehicle at the time of accident. He filed his affidavit Ex. C-2 wherein he has deposed that unfortunately the vehicle bearing registration No. PB-03R-9139 met with an accident and it was damaged. He is a qualified driver and never disqualified for driving by any authority nor his licence has been ceased till date. He is having a valid driving licence for driving Light Motor vehicles issued by Licensing Authority, Bathinda. The complainant has also brought on record copy of licence Ex. C-6 of his driver Chamkaur Singh which reveals that it was renewed and shown to be valid from 31-03-2009 to 30-03-2012 whereas the accident admittedly has occurred on 28-01-2009. The complainant has not brought on record the driving licence of his driver Chamkaur Singh valid as on the date of accident i.e. 28-01-2009. As to why the previous licence has been withheld is not properly explained by Chamkaur Singh Driver in his affidavit Ex. C-2.
8.

The record reveals that Sh. Dinesh Kumar Goyal, Surveyor conducted investigation after visiting office of Licensing Authority, Bathinda and he got report from the Licensing Authority Ex. R-8. According to this report, the licence of Chamkaur Singh bearing No. 2624/NDL was issued on 10-06-2005 and it was valid upto 09-06-2008. On the basis of this report, Sh. Dinesh Kumar Goyal, Surveyor has filed his affidavit Ex. R-9 wherein he has specifically stated that he got verified driving licence of Chamkaur Singh from Licensing Authority, Bathinda by submitting application dated 26-03-2009, whereby it was confirmed that the driving licence No. 2624/NDL was valid from 10-06-2005 to 09-06-2008 only for L.T.V. The copy of the licence of Chamkaur Singh which is placed on record by the complainant as Ex. C-6 reveals that driving licence of Chamkaur Singh was valid from 31-03-2009 to 30-03-2012 meaning thereby that Chamkaur Singh had no valid driving licence after 09-06-2008 nor he applied for the renewal or for issuance of a new driving licence from Licensing authority, Bathinda. Admittedly the accident took place on 28-01-2008 i.e. after about seven months of expiry date of validity of driving licence of Chamkaur Singh and as such, definitely Chamkaur Singh driver of the complainant was not holding an effective and valid driving licence on the date of accident.
9.

The Hon'ble Supreme Court while dealing with a similar situation in the case titled Ram Babu Tiwari Vs. United India Insurance Ltd., and others (2008) 8 S.C.C. 165 referred the judgements in the context of Section 15 of Motor Vehicles Act which reads as under :-

“Section 15 – Renewal of driving licences – (1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry.

Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal.

Provided further that where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of Section 8, and the provisions of sub-section (4) of Section 8, shall so far as may be apply in relation to every such case as they apply in relation to a learner's licence.

(2) An application for the renewal of a driving licence shall be made in such form and accompanied by such documents as may be prescribed by the Central Government.

(3) Where an application for the renewal of a driving licence is made previous to, or not more than thirty days after the date of its expiry, the fee payable for such renewal shall be such as may be prescribed by the Central Government in this behalf.

(4) Where an application for the renewal of a driving licence is made more than thirty days after the date of its expiry, the fee payable for such amount as may be prescribed by the Central Government.

Provided that the fee rendered to in sub-section (3) may be accepted by the licensing authority in respect of an application for the renewal of a driving licence made under this sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from applying within the time specified in sub-section (3).

Provided further that if the application is made more than five years after the driving licence has ceased to be effective, the licensing authority may refuse to renew the driving licence, unless the applicant undergoes and posses to its satisfaction the test of competence to drive referred to in sub-section (3) of Section 9.

(5) Where the application for renewal has been rejected the fee paid shall be refunded to such extent and in such manner as may be prescribed by the Central Government.

(6) Where the authority renewing the driving licence is not the authority which issued the driving licence it shall intimate the fact of renewal to the authority which issued the driving licence.”

The Hon'ble Supreme Court further observed in Ram Babu Tiwari's case (supra) that :-

“It is beyond any doubt or dispute that only in the event an application for renewal of licence is filed within a period of 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured.
10.

The Hon'ble Supreme Court further considered the various provisions of Motor Vehicles Act in case titled National Insurance Co. Ltd., Vs. Swaran Singh 2004(3) SCC. 297 and has held that :-

“45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor.

Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the date of its expiry.

46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry.

In Kusum Rai's case (supra) it was held as follows :

14. This court in Swaran Singh 2004(3) S.C.C. 297 clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regards the liability of the owner vis-a-vis the driver being not possessed for a valid licence was considered in Swaran Singh stating SCC pp. 336-37 para 89)

89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one more more of them are (a0 motorcycle without gear (b) motorcycle with gear (c) invalid carriage (d) light motor vehicle (e) transport vehicle (f) road roller and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are 'goods carriage', heavy goods vehicle, heavy passenger motor vehicle, invalid carriage, light motor vehicle, maxi cab, medium goods vehicle, medium passenger motor vehicle, motor cab, motor cycle, omnibus, private service vehicle, semi-trailer, tourist vehicle, tractor, trailer and transport vehicle. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for 'motorcycle without gear' (sic may be driving a vehicle) for which he has no licence. Cases may also arise where a holder of driving licence for 'light motor vehicle' is found to be driving a 'maxi-cab', 'motor-cab' or 'omnibus' for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.”

In the case titled Ishwar Chandra Vs. Oriental Insurance Co. 2007(10)S.C.C. 650, decisions referred to above were considered by the Hon'ble Supreme Court and the order of the Hon'ble High Court in the above referred cases was repelled and it was held that :-

“The three decisions referred to by the High Court were considered and it was held that the Insurance Company would have no liability in the case of this nature. We are in agreement with the view. The appeal deserves to be allowed which we direct. The impugned order of the High Court is set aside.”
11.

The learned counsel for the complainant vehementally argued that the Insurance Company is not justified in repudiating the claim of the complainant solely on the ground that the driver did not possess a valid licence at the time of accident in question and in support of his arguments he relied upon case titled Jitendra Kumar Vs. Oriental Insurance Co. Ltd., and another (2002) 6 SCC 420 and case titled The Oriental Insurance Co. Ltd., Vs. Nirarudeen & Others MFA No. 288 of 2003(A) decided on 6th February, 2008.
12.

We have carefully gone through both the judgements referred to by the learned counsel for the complainant. The facts of both the cases are totally different from the facts of the present case. In both the cases, the accident occurred due to the reasons not involving the skill of the driver because the accident took place due to fire in the vehicle in question which caused damage to the vehicle due to mechanical failure or not due to any fault, act or omission of the driver. Under peculiar facts and circumstances, where skill of the driver is not responsible for accident/damage, definitely not holding effective and valid licence does not matter but in the facts and circumstances of the case in hand, situation was totally different. The ratio of two cases referred to by the learned counsel for the complainant is not applicable in the facts and circumstances in the present case.
13.

Thus, keeping in view the facts, circumstances and the evidence brought on record by the parties, we are of the considered view that the complainant has failed to prove deficiency in service on the part of the opposite parties by leading cogent and convincing evidence. Hence, the complaint fails and is hereby dismissed leaving the parties to bear their own costs.

The copy of this order be sent to the parties concerned free of cost and the file be indexed and consigned.

CONSUMER COMPLAINT No. 98 / 2009
S. Nagaraju, S/o Veeraiah, aged 25 years,

D.No. 9/66, Kummara Street, R.V. Nagar Post,

Kadapa city. ….. Complainant.

Vs.
1. IndusInd Bank, Rep. by its Manager, Sairam towers,

Nagarajupet, Kadapa city.

2. Cholamandalam MS General Insurance Co. Ltd., Rep. by its

Manager, office No. 204, 205, II Floor, Sanjay Appa Chambers,

Plot No. 82, New Chakala Link Road, Andhrri East,

Mumbai – 400 093.

3. Cholamandal MS General Insurance Co. Ld.,

Rep. by its Manager, Dare House, 2nd floor, NSC Bose Road,

Chennai – 600 001. ….. Respondents.
This complaint coming on this day for final hearing on 30-10-2009 in the presence of Sri B. Muralidhar, Advocate for complainant and Sri G.S. Murthy, Advocate for R2 & R3 and R1 called absent and set exparte and upon perusing the material papers on record, the Forum made the following:-


O R D E R

(Per Sri P.V. Nageswara Rao, President),

1. Complaint filed under section 12 of the Consumer Protection Act 1986.

2. The brief facts of the complaint is as follows:- The complainant had S.B. Account No. 0126-K88100-001 with R1 at Kadapa. At the time of opening the account the Bank issued a Group Personal Accident Master Policy No. APG – 00003146-000-00 through the respondent company with validity period from 21-2-2008 to 20-2-2009 covering the risk of accidental death, permanent total disability, permanent partial disability, medical reimbursement, education benefit.


3. On 13-5-2008 while the complainant was driving a Maruti Car bearing No. AP 09 TV : 5359 from Shadnagar to Hyderabad around 6.00 a.m one vehicle bearing No. AP 22 V : 7008 came in opposite direction and both the vehicles dashed near at Lakshmi Jewell city, Nandigam village, Kothur Mandal. Due to it the complainant sustained severe injuries. Kothuru police of Mahaboobnagar district registered a case as Cr. No. 96/2008. The complainant received injuries to his forehead, right thigh, left knee, and left wrist. He was admitted in Govt. Hospital, Shadnagar and later shifted to MEDWIN Hospital, Hyderabad on 16-5-2008. He underwent surgery to his right thigh and steel rod was fixed at MEDWIN Hospital, Hyderabad. He underwent Physiotherapy treatment in Giri clinic Kadapa under the supervision of Dr. K. Dastagiri. The complainant spent Rs. 80,099/- towards treatment, transport and attendant charges. He informed the accident to Sri G. Obanna, Insurance Officer, Indusnd Bank, Kadapa by phone and also to Sri K. Rama Krishna, Senior Relationship Manager of the respondent company by phone. The complainant received claim forms in November 2008 from IndusInd Bank, Kadapa. He submitted the papers to the respondent company on 24-2-2009. He was taking treatment upto 16-10-2008 and later he took treatment as out patient. The accident occurred during the life time of policy. But the respondent company issued a letter dt. 26-2-2009 that it was not informed during 30 days from the date of loss. It was a negligent act on the part of the respondents. The respondents repudiated the claim on that ground. The complainant had valid driving license to LMV transport vehicles and was a professional driver. He was unable to work due to surgery to right leg and had a loss of income of Rs. 4,000/- p.m and became permanently disabled. The complainant filed the complaint for Rs. 80,000/- towards loss of income and Rs. 20,000/- towards mental agony.

4. The R1 was called absent and set exparte on 7-10-2009.

5. The R2 & R3 filed a counter denying the averments made in the complaint. The description and manner of the accident was not correct. The respondents disputed the treatment taken by the complainant at Government Hospital, Shadnagar and at MEDWIN Hospital, Hyderabad and surgery to his right thigh and insertion of steel rod and also Physiotherapy treatment at Giri clinic, Kadapa and spent Rs. 80,099/- towards treatment, medicines, and transport and attendant charges. There was no documentary proof that the complainant informed the accident to Sri G. Obanna, Insurance officer, Indus bank, Kadapa by phone and also to Sri K. Ramakrishna, Senior Relationship Manager by phone. It was not correct that there was negligence on the part of the complainant in submitting claim forms to the company on 24-2-2009, though he obtained forms in November 2008.

6. The respondents admitted the Group Personal Accident policy of the complainant along with benefits provided under the policy. The accident occurred on 13-5-2008 but the claim was intimated on 24-2-2009. It was not informed within 30 days of occurrence as per the terms and conditions of group personal accident policy. The treatment was completed by 16-10-2008 as per document. But it was intimated with delay on 24-2-2009. The claim form along with documentary evidence of loss should be furnished within 30 days after the date of loss. Therefore, the complainant was not entitled for any compensation. As per the claim documents submitted by the complainant he sustained abrasions on forehead, chest, left knee, swelling of right thigh, fracture of right side shaft femur. They did not constitute for valid claim under any of the policy coverages i.e. death, permanent total disability or permanent partial disability under the policy. The medical reimbursement benefit was payable only if there was valid claim under the policy. The repudiation letter was sent informing the non-admissibility of the claim. As per the charge sheet and wound certificate injures were simple in nature and they did not fall within the scope of the policy. The respondents denied that the complainant became permanently disabled and loss of income of Rs. 4,000/- p.m due to accident as a professional driver. The complainant had at liberty to proceed under arbitration clause as per terms and conditions of the policy. Thus there was no deficiency of service and the complaint may be dismissed with costs.
7. On the basis of the above pleadings the following points are settled for determination.

i. Whether there is any negligence and deficiency of service on the part of the respondents?

ii. Whether the complainant is entitled to the relief as prayed for?

iii. To what relief?

8. On behalf of the complainant Ex. A1 to A14 were marked and on behalf of the respondents Ex. B1 & B2 were marked.

9. Point No. 1 & 2 It was an admitted fact that the complainant had S.B. Account No. 0126-K88100-001 with R1 bank at Kadapa. He filed Ex. A1 a copy of statement of account issued by Bank with regard to his savings bank Account. At the time of opening the account with the bank the bank authorities issued a Group Personal Accident Master Policy through the R2 & R3 company under policy No. APG – 00003146-000-00 with validity period from 21-2-2008 to 20-2-2009. The certificate of insurance issued by R2 and R3 was Ex. A2. The policy covered the risk of accidental death, permanent total disability, permanent partial disability, medical reimbursement, education benefit.



10. On 13-5-2008 at 6.00 a.m while the complainant as a professional driver, was driving the Maruti Car bearing No. AP 09 TV : 5359 from Shadnagar to Hyderabad one vehicle bearing No. AP 22 V : 7008 came in opposite direction and dashed near Lakshmi Jewell City, Nandigam Village, Kothur Mandal. Due to it the complainant sustained injuries to his forehead, right thigh, left knee, left wrist. Kothuru police station of Mahaboobnagar registered a case as Cr. No. 96/2008 under section 337 of IPC against the present complainant as accused. So the accident occurred on account of rash and negligent manner of the complainant. He filed Ex. A3 a Xerox copy of FIR and Ex. A5 a Xerox copy of charge sheet. Ex. A4 was Xerox copy of application for examination of injured person submitted by Kothuru police station to the Medical officer, Shadnagar, who opined that the injures on forehead, left knee, left wrist, right thigh were abrasions. As per Ex. A4 all injuries were simple in nature. The complainant filed Ex. A6 a Xerox copy of personal accident claim form, disclosing 35% of permanent disability. But Ex. A4 disclosed that the injuries were simple and they would not lead to any permanent disability. He filed receipts issued by MEDWIN Hospital, Hyderabad under Ex. A7 for ECG & X-ray. It was not towards medical charges of the complainant for surgery to his right thigh and fixing of steel rods. There were no X-rays taken at MEDWIN Hospital, Hyderabad.

11. The complainant filed Ex. A8 receipts issued by travel agencies on different dates to go to Hyderabad from Kadapa and collecting the charges. There were every chance to go to Hyderabad on different dates for some other purpose other than any treatment. Ex. A9 was Xerox copy of letter addressed to R1. Ex. A11 was Xerox copy of letter addressed to R3 to settle the claim. Ex. A13 was Xerox copy of driving license. Ex. A14 was Xerox copy of discharge summary issued by MEDWIN Hospital, Hyderabad. Under Ex. A14 it was noted that on examination there was swelling, deformity, right thigh, 2 X 3cm laceration of left leg abrasion, forehead. At the time of discharge he was advised not to put weight on operated leg. So the injury was not permanent total disability. He filed Ex. A10 a Xerox copy of disability evaluation certificate issued by RIMS Hospital, Kadapa on 16-2-2009. So as per Ex. A10 it was not permanent total disability. It was only 35% permanent disability. The accident was on account of his rash and negligent manner occurred on 13-5-2008. He was discharged from MEDWIN Hospital, Hyderabad on 24-5-2008. But he was silent as a professional driver till November 2008 i.e. six months period without submitting the claim forms of the company. As per terms and conditions of the policy the intimation should be given within 30 days from the date of occurrence. The R3 filed the copy of the repudiation letter under Ex. B1 and copy of the policy with terms and conditions under Ex. B2. Therefore, the R3 repudiated the claim by way of letter under Ex. A12. In Ex. A14 it was not stated that the complainant had permanent total disability or permanent partial disability. As per Ex. A14 he had no disability. So he could attend to his work as usual.



12. As discussed earlier the accident occurred on account of rash and negligent manner of the complainant and therefore, Kothuru police station registered a case against the complainant under Cr. No. 96/2008. So the entire mistake was committed by the complainant himself. However, he claimed Rs. 80,000/- towards medicines, treatment, transport expenses. There was no proper proof. There was no calculation for Rs. 80,000/-. More over the vehicle used by the complainant was a transport vehicle. Thus there are no merits in the case and there is no deficiency of service on the part of the respondents. Hence, the points are answered accordingly.

13. Point No. 3 In the result, the complaint is dismissed without costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 5th November 2009

consumer case(CC) No. CC/07/341

NPR Finance Limited
...........Appellant(s)
vs.

Cholamandalam M.S. General Insurance Co. Ltd.
...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):

OppositeParty/Respondent(s):
OppositeParty/Respondent(s):

ORDER

In the Court of the

Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.

CDF/Unit-I/Case No. 341 / 2007

1) NPR Finance Limited,

19, R.N. Mukherjee Road,

Kolkata-700073. ---------- Complainant

---Verses---

1) Cholamandalam M.S. General Insurance Co. Ltd.,

6A, Middleton Street, Kolkata-700071. ---------- Opposite Party

Present : Sri S. K. Majumdar, President.

Sri T.K. Bhattachatya, Member

Order No. 2 1 Dated 1 5 / 0 1 / 2 0 1 0 .

Today is fixed for passing necessary order filed by the o.p. in respect of the petition filed on 10.6.09 challenging the territorial jurisdiction of this case. We have perused the petition. It has interalia been contended that the kidnapping of an employee of the complainant who was carrying cash to the bank occurred in Delhi and accordingly, it has been alleged that territorial jurisdiction of this case is lying in the court of Delhi and not here. Office of the complainant is also in Delhi. So, in view of this position, cause of action of this case also lies within the territorial jurisdiction of Delhi and not here.

Mere existence of the head office of the o.p. in Kolkata is not sufficient and proper to file a case in Kolkata. In order to attract the territorial jurisdiction at least substantial cause of action must lie in Kolkata. In this respect ld. Lawyer of the o.p. has filed a decision reported in IV (2008) CPJ 159 N.C. We have perused the decision and we are of the opinion that the decision referred to her by the ld. Lawyer of the o.p. is worth mentioning and highly befitting to the present case particularly, on the point of territorial jurisdiction. We have also perused the written objection filed by the complainant against the petition filed by the o.p. challenging the maintainability of the case and noted its contents.

Having due regard to the circumstances and more particularly, when we find that this forum has no territorial jurisdiction to decide/adjudicate this case, we do not like to enter into further merit in this case. Accordingly, we hold that the present case is not maintainable for want of appropriate and proper territorial jurisdiction and accordingly, the case is dismissed and disposed of from this forum. But for the ends of justice, the complainant is given liberty to file the case in the appropriate forum having appropriate territorial jurisdiction.