C.C. No.333/2007
Between:
Ejjagani Mastan, s/o.Biksham, age: 25 years, occu: owner

of Auto bearing No.AP-20-W-9045, (AP-20-T-RT-8550),

r/o.Thummalapally, Konijerla mandal, Khammam District

…Complainant
And
IFFCO-TOKIO General Insurance Co. Ltd., rep. by its

Branch Manager, 4th floor, Lohiya Towes, D.No.40-9/1, opp.

Nirmala convent, Vijayawada.

…Opposite party.
This C.C. came before us for hearing in the presence of Sri.B.Narasimha Reddy, Advocate for complainant and of Sri.G.Seetha Rama Rao, Advocate for opposite party; upon perusing the material papers on record; upon hearing arguments, and having stood over for consideration, this Forum passed the following:-

ORDER

(Per Smt.V.Vijaya Rekha, Member)

1. This complaint is filed under section 12(1) of the Consumer Protection Act, 1986. The brief facts as set out in the complaint are that;

The complainant purchased Bajaj auto, bearing No.AP-20-W-9045, (AP-20-T-RT-8550) from Venkataramana Bajaj, Khammam and at the time of purchase, the opposite party issued comprehensive policy bearing No.35560406 for a period of one year and according to the said policy, the opposite party has to pay the IDV in the event of accident, caused damages to the insured vehicle and also submitted that on 12-9-2006 while he was going to Kalluru to perform pooja, the auto of the complainant dashed the tree, to escape the car which is coming from opposite direction and got damaged. Immediately, informed the same to the financier and sent claim form by claiming the damages. The opposite party conducted final survey through an independent surveyor and the surveyor assessed the damages to a tune of Rs.25,000/- and after that the opposite party addressed a letter, dt.15-11-2006, expressing their inability to settle the claim of the complainant by the reason of permit is not valid at the time of accident and closed the claim as no claim. The complainant further submitted that to evade their liability, the opposite party playing tactics and closed the claim of the complainant, it amounts to deficiency of service and it is the duty of the opposite party to reimburse Rs.25,000/- under IDV of the policy. As such the complainant approached the forum for redressal along with a prayer to direct the opposite party to pay Rs.25,000/- towards IDV together with interest at 24% P.A. from the date of accident and to award Rs.15,000/- towards damages and costs.

2. Along with the complaint, the complainant filed affidavit and also filed

i) Letter addressed by the opposite party, dt.15-11-2006 to

the complainant.



ii)Xerox copy of letter addressed by the opposite party,

dt.16-09-2006 to the complainant.



iii) Xerox copy of Insurance cover note issued by the

opposite party

iv) Xerox copy of Cash memo cum invoice, dt.26-6-2006

v) Xerox copy of Permit (Form-PC)
vi) Xerox copy of certificate of registration,

3. After receipt of notice, the opposite party appeared through its counsel and filed counter by denying the averments made in the complaint.

4. In the counter, the opposite party admitted the issuance of policy bearing No.35560506, valid from 24-6-2006 to 23-6-2007 on the auto bearing No.AP-20-T/RT-8550 and also admitted the appointment of an independent surveyor, who conducted the final survey and also submitted that after examination of survey report, it was revealed that the permit is not valid at the time of accident and no criminal case was registered regarding the alleged accident. As such the claim of the complainant was closed as no claim and there is no deficiency of service on the part of them and prayed to dismiss the complaint.

5. Both the parties filed written arguments and on behalf of opposite party, the policy copy was marked as Ex.B.1.

6. In view of the above submissions made by both the parties, now the point for consideration is, whether the complainant is entitled to any relief as prayed?

P O I N T:

7. As seen from the averments of the complaint and counter, there is no dispute regarding the issuance of policy bearing No.35560406 over the auto bearing No.AP-20-W-9045, (AP-20-T-RT-8550). The only dispute is with regard to the accident and validity of the permit of the vehicle. According to the contents of counter, the opposite party deputed an independent surveyor, who conducted final survey and according to the survey report, the permit of the vehicle was not valid at the time of accident and the opposite party also taken an another objection regarding the non registration of criminal case and non filing of concerned documents, but it is the case of the complainant that it is the responsibility of the opposite party to pay IDV amount in the event of accident, which causes damage to the insured vehicle and also alleged that to evade their liability, the opposite party closed the claim of the complainant. In view of the aforementioned averments and perused the documents, it was observed that the complainant failed to establish his case by filing necessary documents and also failed to file any documentary proof with regard to the date of accident, even though there is a dispute with regard to the date of accident according to the letter dated 15-11-2006, addressed by the opposite party and the averments of the complaint and with regard to the permit is concerned, according to the complaint, the permit is valid at the time of accident, but according to the Form-PC the date of issuance of permit is on 1-8-2006. As such the complainant has to prove his case by filing required documents and the burden lies on him. In the instant case, the complainant failed to file necessary documents like F.I.R. and charge sheet etc., and also failed to file any documentary proof in this regard. In the absence of any such proof, we cannot come to a conclusion in favour of the complainant and as such the point is answered accordingly against the complainant.

8. In the result, the complaint is dismissed. No costs.

Typed to my dictation, Corrected and pronounced by us, in this Forum on this 12th day of November, 2009.

CONSUMER COMPLAINT No. 17 OF 2009
Between:
D.Devendar S/o Pentaiah, Age: 29 years, Occ: Driver-cum-Owner

Of Auto bearing No.AP-24-X-7598, R/o Ookondi Village of

Munugode Mandal, Nalgonda District.
…Complainant.
AND
IFFCO-TOKIO General Insurance Company Limited,

Branch Office, 2nd Floor, Uma Chambers, Banjarahills Road,

Punjagutta, Hyderabad. Represented by its Authorized Signatory.
…Opposite Party.
This complaint came on before us for final hearing on 1-12-2009, in the presence of Sri G.Mohan, Advocate for the Complainant, and Sri A.Suresh Babu, Advocate for the Opposite Party, and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following:
O R D E R
BY SRI K.VINODH REDDY, MALE MEMBER

1. It is the say of the complainant that he is the owner cum driver of

Auto bearing No.AP-24-X-7598 who used to earn his livelihood by plying the Auto. On that Auto he had obtained an insurance policy from the Opposite Party by paying an amount of Rs.3,187.07 Ps., which includes own damage and third party, for that the Opposite Party had issued a policy bearing No.40744535 which will be in force from dated 21-1-2009 to 20-1-2010.

Contd…2

- 2 -

While he was plying the Auto on the road from Chityal to Ookondi on dated 26-2-2009 at about 5-30 p.m., near Peddamma Temple in the outskirts of Urumadla Village, another Auto bearing No.AP-24-V-9904 came in a rash and negligent manner and collided with his Auto, causing damage to his Auto, the same was reported in P.S.Chityal, where they had registered a Crime No.36/2009 under section 337 IPC., stating that the Auto bearing No.AP-24-V-9904 collided with the complainant’s Auto, due to the negligence of the driver of the Opposite Party Auto.



For the above said reason the complainant had approached the Opposite Party and claimed Rs.50,000/- which included Rs.25,000/- for repairing charges and Rs.25,000/- towards loss of three months earnings, and the same was repudiated by the Opposite Party on dated 10-3-2009, saying that they are unable to pay him the above said claim as on the date and time of the accident the Auto was carrying excess number of passengers, but actually there were no excess passengers in his Auto at the time eof accident.

Hence he prays that the Forum should direct the Opposite Party to pay an amount of Rs.50,000/- which includes repairing costs and loss of earnings along with interest and costs.

2. The Opposite Party in their counter says that the complainant had suppressed the material facts and claimed a false claim as the insurance policy is a contract binding on both the parties at utmost faith on either side. They had repudiated the claim for the reason that the complainant had violated the terms and conditions of the contract and also violated

Contd…3
- 3 -

the provisions of M.V.Act by carrying excess passengers in his Auto at the time of accident, i.e. 7 passengers plus driver, the same was within the knowledge of the complainant and chargesheet filed by the police clearly shows that. They also assessed the damages caused to the Auto by appointing a Surveyor who in his report also stated that the Auto was carrying the passengers more than its permitted capacity at the time of accident. They also further say that the complainant had furnished the information at the time of claim that there were 6 passengers in his Auto at the time of accident which is a violation of contract of polic
On thorough verification basing on the terms and conditions of the policy they had repudiated the claim rightly and hence the complaint may be dismissed with costs.

3. The counsel for the complainant had filed the affidavit of the complainant along with documents which are marked as Exs.A-1 to A-11 for proof on record. The counsel for the Opposite Party filed the affidavit of B.Gunashekar S/o Nadamuni, occupation: Head CSC in the Opposite Party’s office and produced the documents which are marked as Exs.B-1 to B-3 for proof on record and also filed his written arguments.

4. Now the points that arise for consideration in this complaint are:

1) Whether there was deficiency in service on the part of the Opposite Party or not?

2) Whether the complainant is entitled for the claim he made in his complaint or not?

3) If so, to what extent?
Contd…3
- 4 -


5. POINT No.1: It is not in dispute that the complainant is the owner-cum-driver of Auto bearing No.AP-24-X-7598 which was financed by Canara Bank, Munugode of Nalgonda District in the year 2009 as per Ex.A-1. The above Auto was registered on 2-2-2009 and got a permit from the Transport Department for a seating capacity of 4 persons, the same Auto was run by the complainant as a passenger carriage between Ookondi to Chityal who had an effective Driving Licence as per Ex.A-2. The same vehicle was insured with the Opposite Party by the complainant after paying an amount of Rs.3,187.07 Ps., for that the Opposite Party had issued an Insurance Certificate which is marked as Ex.A-3, vide No.40744535 which will be in force from 21-1-2009 to 20-1-2010 midnight, after valuing the vehicle for an amount of Rs.1,24,693/-.



On 26-2-2009 at about 5-30 p.m., the complainant’s Auto met with an accident near Peddamma Temple in the outskirts of Urumadla Village while going from Ookondi to Chityal for the reason that another Auto bearing No.AP-24-V-9904 came in a rash and negligent way from the opposite direction and dashed the complainant’s Auto which caused the auto of the complainant to over turn along with passengers as per Ex.A-4 which is a F.I.R. registered by the P.S.Chityal, vide Crime No.36/2009 on dated 26-2-2009 on a complaint given by the passenger who boarded the complainant’s auto. Ex.A-5 is a Panchanama, Ex.A-6 is a sketch of the accident, Ex.A-7 is a Statement recorded by the Police from the complainant, Ex.A-8 is a chargesheet which shows that the police Chityal has inquired about the accident and came to a conclusion that cause of the accident was only due to the rash and negligent driving of the driver of Auto bearing No.AP-24-V-9904 and the same was


Contd…5

- 5 -

confessed by the accused Salvadi Swamy (driver of Auto bearing No.AP-24-V-9904) before the Station In-charge who arrest him under sections 337 and 338 IPC punishable under section 130/177, section 196 of M.V.Act.



Ex.A-9 is a repudiation letter sent by the Opposite Party to the complainant on dated 10-3-2009 on Claim No.31523863 which was made by the complainant for the damages of the Auto after getting it repaired in the authorized service centre with an expenditure of Rs.25,599/- as per Ex.A-10 which contains 5 bills. Ex.A-11 is the photograph of the complainant’s vehicle after the accident showing the damages caused to the vehicle.



Ex.B-1 is the claim form sent by the complainant to the Opposite Party showing that there were 6 passengers at the time of accident in the Auto. Ex.B-2 is the copy of the repudiation letter sent to the complainant by the Opposite Party after receiving the surveyor’ report who assessed the damage caused to the vehicle and made a note that there were passengers more than its permitted capacity as per the counter of the Opposite Party, where it was not produced in this Forum for the proof on record whether he stated that carrying of excess passengers is the only cause for the above said accident or not.

As per chargesheet it was revealed that cause of accident was only due to the rash and negligent driving of the driver of another Auto bearing No.AP-24-V-9904 but not due to the over load of the passengers and withholding of the surveyor’s report and for not producing it before this Forum we can draw adverse inference on the Opposite Party. Hence we hold that there was deficiency in service on the part of the Opposite Party.

Contd…6

- 6 -

6. POINT No.2: As the complainant was carrying passengers more than the permitted capacity even though it was not direct cause to the above said accident as it was a new vehicle we opine that he is entitled on non-standard basis for the damages caused to the vehicle.


7. POINT No.3: In the light of observations made in Points No.1 and 2 we opine that the complainant is entitled only 50% of the expenditure incurred by him towards repairs of Auto bearing No.AP-24-X-7598 on non-standard basis.

In the result, we direct the Opposite Party to pay to the complainant Rs.12,800/-, i.e. 50% of the expenditure incurred by the complainant towards repairs of his Auto bearing No.AP-24-X-7598 and Rs.1,000/- towards costs, within 30 days from the date of communication of this Order, failing which the complainant is entitled for the interest at the rate of 9% p.a. on the above said amount from the date of Order till realization.

DATED THIS THE 30th DAY OF DECEMBER 2009

COMPLAINANT

BY-SRI. M. LOKESH,

ADVOCATE, BELLARY.
//VS//


SRI. MALLESH, S/O SHIVANNA,

R/O VINAYAKANAGAR, HOSPET ROAD,

BELLARY.
RESPONDENTS

By-Sri.B.Venkateswara Prasad,

Advocate, Bellary.


1. THE MANAGER,

IFFCO TOKIO GENERAL INSURANCE CO.

LTD., NEAR OLD BUSTAND,

OPP: BASAVA VANA, NEW COTTON

MARKET, HUBLI.

2. THE BRANCH MANAGER,

IFFCO TOKO GENERAL INSURANCE CO.

LTD. No.102, 1ST FLOOR, K. C. ROAD,

RAGHAVA KRISHNA COMPLEX, BELLARY.

//JUDGEMENT//

Sri. G. Basavaraj, Member.


This is the complaint filed by above named Complainant under Sec-12 of C.P.Act, 1986 against the Respondents attributing negligence and deficiency of service in non-settling his claim for insurance.

2. The brief facts of the Complainant’s case are that;

The Complainant is the registered owner-cum-driver of vehicle Bajaj Auto bearing Regn.No.KA-34/8431 and the said vehicle was insured with the Respondents vide Policy bearing cover note No.34304924 with effect from 14-05-2007 to 13-05-2008. But unfortunately the Complainant’s said vehicle met with an accident on 17-02-2008 at about 10.40 p.m. dashed by lorry bearing No.T.No.25/V5483 and in the said accident the Complainants’ vehicle was damaged and information regarding the said accident was given to the concerned jurisdictional Police Station and also to Respondents. The Respondents have sent Company’s Surveyor who in turn inspected the said vehicle and submitted his report to the Respondents stating that, the vehicle was damaged due to the said accident to an extent of Rs.38,000/- and at the time of inspection, the Complainant has handed over all the documents demanded by the Surveyor and the Complainant has carried out repairs to his vehicle by spending a sum of Rs.37,573/-. The Complainant has submitted claim form to the Respondents along with FIR, Panchanama, M.V.Report and all original bills with a request to settle the claim. But inspite of it Respondents have neither settled the claim nor repudiated it. Thereafter, the Complainant got issued legal notice to the Respondents by UCP on 18-02-2009. But Respondents have not given reply to that notice. So there is deficiency of service on the part of the Respondents. Hence, the Complainant was constrained to file this complaint for to award a sum of Rs.38,000/- with interest @ 12% p.a. from the date of accident till realization and Rs.10,000/- towards mental agony and deficiency of service etc. with other reliefs as deems fit to the circumstances.

3. Both Respondent No.1 and 2 have appeared through their common counsel. The Respondent No.2 filed written version which is adopted by the Respondent No.1 by filing a Memo to that effect.

The Respondents have not disputed that, the Complainant is the registered owner of the said vehicle, issuance of Insurance Policy in conformity with the provisions of M.V. Act and subject to terms and conditions enumerated therein to the said vehicle for the period from 14-05-2007 to 13-05-2008 and occurrence of accident on the said date, time and place of accident. Further it is the case of the Respondents that, on intimation given by the Complainant they have made immediate arrangement and appointed Mr. Ganesh, Surveyor & Loss Assessor to conduct spot survey and accordingly he has visited the accident spot and noted down all damages and submitted his spot survey report dated: 10-05-2008 by assessing net damages at Rs.21,500/-. The Respondents have denied that the Surveyor has assessed the loss to the extent of Rs.38,000/- as stated by the Complainant. The Respondents have contended that, at the time of accident the Complainant was carrying more number of persons than seating capacity of vehicle by name passenger carrying commercial vehicle and driver-cum-Complainant was not having any valid and effective driving licence to drive that vehicle at that time, so the Complainant violated the terms and conditions of Insurance Policy. Hence, there is no negligence or deficiency of service on the part of Respondents. Therefore, they have prayed for dismissal of the complaint.



4. The Complainant in support of his case has filed his affidavit evidence as P.W.1 and got marked documents Ex.P.1 to Ex.P.12 and closed his side. On behalf of Respondents, affidavit evidence of R.W.1 has filed and also filed affidavit evidence of Surveyor as R.W.2 and got marked documents at Ex.R.1 to Ex.R.5 and closed their side. Both parties have filed Written Briefs and oral arguments of both the sides have been heard.
5. On the basis of pleadings of parties, now the points that arise for our consideration and determination are that;

//POINTS//

1.

Whether the Complainant has proved that there is deficiency of service on the part of the Respondents in settling his claim?

2.

What order?


6. Our findings on the above points are as under.
Point No.1:

In Affirmative.

Point No.2:

In view of findings on Point No.1,

we pass the final order for the following;
//REASONS//
Point No.1: -



7. In the instant case, following points are undisputed in between the parties.

1.

It is not in dispute that, the Complainant is the registered owner-cum-driver of said vehicle bearing Regn.No.KA-34/8431 which is evident from Ex.P.1 R.C. Book.

2
It is also not in dispute that, the Complainant had insured the said vehicle with the Respondents vide Cover Note No.34304924 for the period from 14-05-2007 to 13-05-2008 which is evident from Ex.P.2 as well as Ex.R.1.

3.

It is further undisputed fact that the said vehicle met with an accident on 17-02-2008 while Insurance Policy of it was in force and the said vehicle damaged in the accident which is evident from Ex.P.3 to Ex.P.6 & Ex.P.11.


4.


It is further undisputed fact that the Respondent Insurance Company appointed Surveyor after knowing the fact of accident, thereafter, he visited the spot, assessed the damage and loss as per his Survey reports Ex.R.2 to Ex.R.4.

5.

It is also not in dispute that the Respondents have neither settled the claim nor repudiated the claim of Complainant.


8. The Respondents have mainly contended that, at the time of accident, the Complainant was carrying more number of persons than seating capacity of vehicle by name passenger carrying commercial vehicle and driver-cum-Complainant was not having any valid and effective driving license to drive that vehicle at that time, so he violated the terms and conditions of Insurance Policy

9. Keeping in view of said contentions, now let us discuss as to as whether there is any deficiency of service on the part of the Respondent Insurance Company in settling the claim of Complainant.


10. According to documents Ex.P.4 to Ex.P.6 namly copy of FIR, Panchanama, Statement of Complainant and copy of Charge Sheet clearly shows that there were 05 passengers including driver-cum-Complainant were travelling in the said vehicle on the said date, time and place of accident. Further it clearly goes to show that the seating capacity of the said vehicle is 3 +1 which is evident from Ex.P.1 copy of Registration Certificate. It is important to note that the Complainant-cum-driver himself has not caused the said accident, on the other hand, the vehicle bearing No.T.N.25/V5483 came from opposite direction dashed to the Complainant’s vehicle. So we are of opinion that merely there were carrying more number of passengers than seating capacity is not cause for said accident. Even otherwise in the following decisions reported in;

1.
2007 SCW 4590 Smt. Yellavva & Ors. Vs. National Insurance Company.

2.


2007 AIR SCW 3734 Oriental Insurance Company Vs. Biraja Mohan & Others.

3.

2007 (1) CPR 378 (Punjab State Commission) United India Assurance Co. Ltd. Vs. Amarjit Singh.


1)

2)

the Hon’ble Supreme Court as well as Hon’ble State Commission of Chandigarh observed that, the claim of Complainant under Insurance Policy with regard to the damage to the vehicle cannot be repudiated on the ground that, there were persons in excess travelling to the seating capacity as mentioned in Registration Certificate as it is not a fundamental breach of terms and conditions of the Insurance Policy. The said principle is applicable to the facts of the present case on hand as facts of this case are similar to the facts of decided cases. Accordingly, we are of the view that, there is no merit in the said contention of Respondents for not settling the claim of Complainant.



11. The second contention of Respondents for not settling the claim of Complainant is that, the Complainant-cum-driver was not having any valid and effective Driving Licecne to drive that vehicle on the said date, time and place of accident and he has not submitted relevant documents pertaining to the said vehicle. To substantiate this ground, the Complainant has produced Xerox copy of Driving License marked as Ex.P.12 which shows that the Complainant was having valid and effective Driving License on the said date, time and place. It is important to note that, in Ex.R.2 Surveyor’s report dated: 10-05-2008 there is column of Driver Particulars in which the name of driver mentioned as Mallesh-self, Date of issue, validity of driving license upto 25-05-2025, issuing authority, type of license, Type of Vehicle Allowed to Drive and Driving Licence Verified-Yes are mentioned therein. Further the Complainant has got issued a legal notice vide Ex.P.10 dated: 18-02-2009 under Certificate of Posting with a request to settle the claim. But inspite it, the Respondents have not given reply to that notice. Ex.R.5 is the copy of letter dated: 08-08-2008 written by Respondents said to have been sent to the Complainant to submit original R.C. It is important to note that, at the time of conducting the Survey by the Surveyor of Respondents, the Complainant has produced all relevant documents pertaining to the said vehicle and said Surveyor has mentioned same in his report Ex.R.2. So there is no merit in the second contention of Respondents for not settling the claim of Complainant.



12. For the reasons discussed above, there is deficiency in service by the Respondents in non-settling the legal claim of Complainant.
13. The Complainant has stated that, the Respondents Surveyor has assessed loss to an extent of Rs.38,000/-. But the Complainant himself has not produced any report by showing that the Surveyor of Respondents assessed loss at Rs.38,000/-. On the other hand, he has produced copy of bill vide Ex.P.7 issued by private automobile firm. The Respondent Insurance Company appointed a Surveyor who visited the place of accident, inspected the damaged vehicle and assessed loss. According to his report Ex.R.3 he assessed the loss to the extent of Rs.21,500/-. In view of the fact, there are two available documents before us to assess the damage and loss to the Complainant. Admittedly, Ex.P.7 is private document issued by private automobile firm. Ex.R.3 is the report of Surveyor who is an independent qualified officer appointed under the Insurance Act. The Complainant has not filed the affidavit of person who issued bill marked at Ex.P.7.



14. In the light of the principles of rulings reported in 2006 CTJ 119 (NCDRC) National Insurance Co. Ltd. Vs. Ram Lok, II (2006) CPJ 339 (NC) Oriental Insurance Co. Ltd. Vs. B.Rama Reddy and 2008 CTJ 580 (CP) (NCDRC) United India Insurance Co. Ltd. Vs. Smt. Maya, we are of the view that, accepting the report of Surveyor Ex.R.3 is proper and safe as such, the Complainant is entitled to get an amount of Rs.21,500/- towards his claim.

15. Hon’ble Supreme Court of India in the decision of HUDA Vs. Raj Singh Rana reported in 2008 CTJ 920 (SC) (CP) has held that, “the rate of interest must not ordinarily exceed the current rate of interest”. So under these circumstances, it would be just and reasonable to award interest @ 9% p.a. Further, the Hon’ble National Commission in a case Oriental Insurance Co. Ltd. Vs. Ziaur Rehman reported in 2006 CTJ 127 (CP) (NCDRC) has held that;

“ In Accident cases the Insurance Company should take about two months in settling a claim. Therefore, the interest on the awarded amount to the Claimant should be made payable from two months after the date of accident”.
16. Therefore, the Complainant is entitled to recover an amount of Rs.21,500/- towards his claim with interest @ 9% p.a. from two months after the date of accident till realization from the Respondents. Further the Complainant is also entitled to recover a sum of Rs.2,000/- towards deficiency of service and Rs.2,000/- towards cost of this litigation from the Respondents jointly and severally. Hence, we answer Point No.1 in affirmative.

Point No.2: -

17. In view of findings on Point No.1, we pass the following;

//ORDER//

The complaint filed by the Complainant is partly allowed with cost.

The Complainant is entitled to recover a sum of Rs.21,500/- (rupees twenty one thousand five hundred only) with interest @ 9% p.a. from 01-05-2008 till realization from the Respondents jointly and severally.

The Complainant is also entitled to recover a sum of Rs.2,000/- (rupees two thousand only) towards deficiency of service and Rs.2,000/- (rupees two thousand only) towards cost of this litigation from the Respondents jointly and severally.

The Respondents are hereby granted two months time from the date of this Judgment for to make the payment of total sum and interest as stated above to the Complainant.

CONSUMER CASE NO. : 76/S/2009 DATED : 29.01.2010.

BEFPRE PRESIDENT : SMT. ANITA DEBNATH,

Ex-Member of W.B. Higher Judicial Services and

Addl. Dist. & Session Judge,

President, D.C.D.R.F., Siliguri.

MEMBER : SMT. PRATITI BHATTACHARJEE
&
SRI ASIT RANJAN DAS.
COMPLAINANT 1. : SMT. CHHAYA CHOWDHURY,

W/O Late Kalyan Chowdhury and

2. : SMT. MOUMITA CHOWDHURY

W/O. Late Ananda Chowdhury



both addressed at Care of M/S. M M Traders,

Beguntary More, Jalpaiguri – 735 101,

Dist.- Jalpaiguri, West Bengal and also on behalf of

two minor babies namely Swagato Chowdhury and

Sananda Chowdhury (represented through their

mother and natural guardian Smt. Moumita

Chowdhury).

O.Ps. 1) : THE BRANCH MANAGER,

IFFCO – TOKIO General Insurance Co. Ltd.,

Burdwan Road, P.O. & P.S.- Siliguri,

Dist.- Darjeeling.



2) : M/S PARAMOUNT HEALTH SERVICES (P) LTD.,

ICMARD Building, 08th Floor, 14/2, CIT Scheme VIII

(M), Ultadanga, Kolkata – 700 067 (West Bengal).

3) : M/S PARAMOUNT HEALTH SERVICES (P) LTD.,

54/A, First Floor, Elite Auto House,

M. Vasanji Road, Behind CRISIL House,

Andheri – Kurla Road, Chakala,

Mumbai – 93.



FOR THE COMPLAINANT : Sri S. K. Mitruka, Advocate.



FOR THE OP No.1 : Sri Chinmoy Chakraborty, Advocate.

J U D G E M E N T
This is a case for realization of medical expenses amounting to Rs. 68,000/- Under Section 12 of the CP Act, 1986.

Contd….P/2

-:2:-

The case of the complainant in short is that the husband of the Complainant No.2, Late Ananda Chowdhury obtaianed one Insurance Policy being No.52053346 valid up to 24.06.08 from the Iffco Tokio General Insurance Co. Ltd. during his life time. It was not within the knowledge of the Complainant No.2. The said insured, Late Ananda Chowdhury died at Apollo Hospital, Chennai on 05.09.07. A sum of Rs.68,000/- was incurred towards the medical treatment of the said deceased insured. At the relevant time the complainant No.2, the wife of deceased insured was then pregnant and got admission in the Nursing Home at Jalpaiguri. Subsequently, she gave birth of twin baby on 07.10.07 and she was discharged there from on 15.10.07. Due to sudden demise of the husband of the complainant No.2 she was mentally disturbed as there was no male member in the family of the deceased assured. She was not in a position to look after anything for business affairs of the said insured since deceased. Subsequently, it has come to her knowledge about the existence of Insurance Policy left by her husband, the deceased insured on searching. After knowing the said factum the complainant No.2 submitted a letter dated 01.01.09 to the OP No.1 narrated the fact in details with a request to consider her case sympathetically. As she was ignorant about the existence of any policy left by her husband and as she was then disturbed due to sudden death coupled with birth of twin babies she could not lodge any complaint in time. Repeated request was made to settle her claim but in vain. Since the insured died within validity period of the insurance policy she is entitled to get the reimbursement of the medical expenses as incurred towards the treatment of the deceased insured. As no response was received from the end of the OPs the complainant No.2 issued one legal notice through her authorized Lawyer/Agent for realization of medical expenses.

Complainant No.1 is the mother of the deceased insured and Complainant No.2 is the wife of the deceased insured and she has filed the instant complaint representing her minor babies Swagato Chowdhury and Sananda Chowdhury being natural guardian mother of those two twin babies. Subsequently, the claim of the complainant was repudiated in the first week of December, 2008 and also from the information of repudiation as gathered from her Lawyer in the last week of August, 2009. Hence, this case supported by affidavit.

The OP No.1 contested the case by putting W/V denying each and every allegation as made therein with a specific contention that the instant claim is barred by limitation as it has been filed long after two years from the date when the cause of action arose and as such the case is not maintainable in law. Since the claim has been lodged long after limitation the complainants had lost their right to claim their medical expenses

Contd….P/3

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from the OP due to violation of the terms and condition of the policy certificate.

As the complainants violated the terms and conditions of the contract the OPs rightly repudiated the claim as lodged by the complainants and it ought to have been filed within the period of 30 days when such incident occurred.

There is no deficiency on the part of the OPs and as such the claim is liable to be dismissed with cost.

Upon consideration of the Pleadings of the respective parties the following points are framed for adjudication.

Points for consideration

1. Is the case maintainable ?

2. Is there any deficiency of service or Unfair Trade Practice on the part of the Opposite parties ?

3. Are the complainants entitled to get decree/award as sought for ?

4. To what other relief/reliefs as prayed for ?

Point No.1

This is a case for realization of the insured amount under mediclaim policy. In order to obtain an order for realization of the claim under the mediclaim policy the complainants are to prove that they are the consumers under the Consumer Protection Act, 1986.

When service was hired on consideration or availed of and service includes any beneficiary of such services other than the person who hires or avails of the service for consideration.

Here the complainants are the legal heirs of the deceased insured Late Ananda Chowdhury. There is no denial on the part of the OPs about the relationship amongst the complainants and the deceased insured. So, under the law complainants are the beneficiary of the alleged claim insured by the deceased Ananda Chowdhury. Therefore the complainants are the consumers under the Consumer Protection Act, 1986.

When the claim of the complainants have been denied by the OP and repudiated the claim as made by the complainants the nature of dispute comes within the purview of consumer disputes as provided under Section 2(1)(e) of the Consumer Protection Act.

Service means service of any description which is made available to potential users and includes the facilities in connection with Insurance Company. Therefore, the claim as made by the complainants with regard to the service comes within the ambit of service as defined U/S 2(1)(o) of the C.P. Act, 1986 we are of the view that the case is maintainable.

Contd….P/4

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Much argument has been advanced by the Ld. Advocate on behalf of the OP that the claim has been instituted long after two years from the date when the cause of action arose. But in the instant case the claim of the complainant dated 01.01.09 has been repudiated only on 26.08.09. Thereby the cause of action for sue arose only from the date of rejection of the claim. Therefore the case has been instituted within two years from the date of repudiation when the cause of action arises. So, the claim is not barred by limitation.

Therefore, the case is maintainable in favour of the complainant.

Points No. 2 to 4.

The complainants in support of their claim led evidence supported by affidavit and narrated the incidents in terms of the written complaint. But the same was not cross-examined by the OPs on the plea that the case of the complainants relates with documentary evidence for which there is no need of examination to the witness as led by the complainants. Accordingly, in view of the said submissions of the Ld. Advocate on behalf of the OP No.1 the cross-examination of the witness led by the complainants have been declined vide order No.8 dated 09.12.09. Thereafter, OP No.1 led evidence through one Sanjoy Seth as OP W No.1 to that effect that the complainant did not intimate the OP regarding the event/admission in hospital of the deceased person and discharged from the hospital within one month as per the terms of the policy and it was intimated only on 01.01.09 after a long period about one year four months. So, the claim has been repudiated beyond the terms and conditions under the mediclaim policy. The said witness was also not cross examined by the complainants. On the similar view as made by the Ld. Advocate on behalf of the OP as to that the instant claim rests on the basis of the documentary evidence.

The complainant in support of their claim furnished several documents namely copy of the Policy Card; Medical Prescriptions, Bills, Reports, Death Summery issued by the Apollo Hospital, the letters issued by the complainant No.2, legal notice and reply thereof.

Death Summery issued by one Dr. Ubal Dhus, the Consultant Gastro-Enterologist dated 05.09.07 of Apollo Hospital where from it reveals that Ananda Chowdhury, 33 years got admission in Apollo Hospital on 04.09.07 at 9.18 a.m. and died on 05.09.09 at 9.20 a.m. Cause of death has been noted therein as Acute Leukemia Intra Cannial Hemorrhage. The said death summery further reflects that on investigations the patient was found to have low plateless and leucopenic with circulating blast and atypical cells.



Contd….P/5

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He was provisionally diagnosed of acute leukemia. The physical condition was deteriorated and all best efforts were taken for recovery. Even he was kept on mechanical ventilator. Plateless transfusion was also given but ultimately patient had multiple arrest and died on 05.09.07.

From the prescriptions dated 02.09.07 issued by one Sumantra Mukhopadhaya, Cardiologist and MD it reveals that several blood test was prescribed for. Another prescription dated 02.09.07 it reveals that the patient Ananda Chowdhury came with history of bleeding gum and he was prescribed for various treatments and tests. All the reports issued by Apollo Hospital dated 04.09.07 05.09.07 it reveals that Department of Hematology dated 05.09.07 there is suggestion on consideration blood counting that Bone Marrow aspirations/Biopsy flowcytometry and cytogenetics to rule out acute promyeloclytic leukemia opined by Hematologist. So, all those documents, prescriptions and blood reports and other pathological reports support that the patient concerned got admission on 04.09.07 in Apollo Hospital with the history of bleeding gum and ultimately died on 05.09.07 on the disease of acute leukemia. It is the case of the OP that there was suppression of material fact and there is no past history of suffering from Leukemia.

The copy of the medical bills issued by the Apollo Hospital support the claim of incurrence of medical expenses amounting to Rs.68,012.12/-.

Copy of the letter dated 26.08.09 issued by Paramount Health Services Pvt. Ltd. addressed to Advocate Mr. S. K. Mitruka about the repudiation of the claim on the plea of General Exclusion No.6 of the policy and the claim must be filed within 30 days from the date when the cause of action and/or date of discharge from the hospital. Thereby, the claim falls outside the scope of the policy coverage.

The OP in support of their contention/defence has filed the Rules and Regulations issued by Iffco Tokyo.

Section 6 relates with General conditions under the captions of claim procedure and requirements. It lays down that an event which might became a claim under the policy must be reported to that as soon as possible but not later on 7 days from the date of hospitalization. A Written statement of the claim will be required and a claim form will be completed and the claim must be filed within 30 days from the date of discharge from the hospital or completion of treatment except in extreme cases of hardship whether it is proved to their satisfaction that under the circumstances, in which insured person or his/her personal representatives were placed, it was not possible for any one to give notice or they are claimed within the prescribed time limit.



Contd….P/6

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The Clause as mentioned above clearly goes to show that there are two parts in the General Clause/conditions as led down in Clause 6. One part is to be considered as claim form will be completed and must be filed within 30 days from the date of discharge from the hospital and the event is to be intimated as soon as possible but not later on 7 days.

Second part relates with in case of delay in filing claim form in extreme cases of hardship and it is to be proved to their satisfaction under the circumstances.

The sole case of the complainant is that Ananda Chowdhury got admission in the hospital on 04.09.07. Death summery issued by Apollo Hospital dated 05.09.07 support the case of the complainant about the date and time of admission to patient Ananda Chowdhury and death took place on 05.09.07.

The case of the complainant No.2 further speaks that she gave birth twin babies on 07.10.07 i.e. near about one month after the demise of Ananda Chowdhury. The Ld. Advocate on behalf of the OPs advanced argument much and also furnished Written Argument that the claim application in prescribed form has been submitted long after the death of deceased insured and thereby the such claim falls within the exclusion clause in terms of the contract under the policy. Thereby, the claim as repudiated by the OPs are correct and there is no scope for reconsideration.

Copy of the mediclaim policy goes to show that policy being No.5205340 stands in the name of Ananda Chowdhury of which valid up to 24.06.08. There is no denial of issuance of policy in favour of the insured Ananda Chowdhury. Only cause of repudiation is delay in lodging the claim form and it was not intimated within the time as mentioned in General Clause No.6.

Although the OP took a defence that there was materials suppression of fact relating to the deceased of the insured. But to substantiate such pleadings no scrap of paper has been furnished by the OPs that the deceased insured suffered any kinds of disease before taking policy under the mediclaim policy from the OP No.1. Pleading is no proof it requires to be proved by cogent, oral and documentary evidence. Rather all the medical papers as furnished by the complainants it clearly goes to show that deceased insured suffered from bleeding gum only on 02.09.07 and thereafter he got admission in Apollo Hospital on 04.09.07 and died therein on 05.09.07. The death is an unforeseen event. None can say the date of death and it also not expected that insured got the insurance policy under the claim apprehending the date of death so that his beneficiary will get advantage under the alleged policy. So, considering the circumstances, the defence case relating to alleged suppression of material fact bears no evidentiary value being not proved by cogent evidence.

Contd….P/7

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Admittedly, the complainants submitted claim form before the OP only on 01.01.09 long after the date of death as well as delay in lodging the claim after expiry of 30 days from the date of death of deceased insured. Cause of delay has clearly explained by the claimant Moumita Chowdhury, the wife of the deceased insured. Pertinent to mention here that just after one month of sudden demise of insured the said claimant, the wife of deceased insured got birth of twin babies and it is not expected from a widow that it has been expected from her to lodge claim just after the incident. Her mental condition is to be considered rationally. More so, while she was in advanced stage of pregnancy it was not possible for his to look after or thinks about the claim. Rather all the documents coupled with the claim application clearly justified the cause of delay in lodging the claim application.

The part (ii) General Clause No.6 as reflected above clearly goes to show that the authority concerned has given power to consider the delay in appropriate case. The ground of cause of delay relates not only for the date of death of insured but also for giving birth of twin babies just after one month of the date of insured. Despite having such ground for reconsideration justifying the delay as explained by the widow of the deceased insured and despite having such terms and conditions in General Clause No.6 the OP did not exercise their such discretion in granting the claim lodged by the widow of the deceased insured. It is nothing but avoiding tendency and mal practice only to deprive of the legitimate claim of the complainant.

When all the documents support the claim of the complainants having a good ground as narrated therein and despite having such terms and conditions in exercising the power of the OP for condonation of the delay in lodging the claim and when it has not been properly dealt with obviously it comes within the deficiency of service on the part of the OP.

Considering all the facts and circumstances, in the light of our reasoning as made hereinbefore that death of Ananda Chowdhury, the insured within the valid coverage of insurance policy under the mediclaim policy just after a few months of taking insurance policy from the OP we are of the view that it is a general trend to get financial assistance in the head of medical ground to taken insurance under the mediclaim policy for the purpose of emergency matter if such situation arises and despite having valid insurance policy under the mediclaim the OP did not come forward to extend their financial assistance to the beneficiary/legal heirs of the deceased insured this is not proper and the nature of repudiation as reflected is an arbitrary, illegal, improper having no legal ground for rejection of the claim as made by the complainants.



Contd….P/8

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Under these facts and circumstances, when the bills and papers issued by Apollo Hospital support the claim of the complainants and when such death took place within the valid coverage of the mediclaim policy the complainants’ claim is justifiable and is entertainable in law.

The manner of rejection or repudiation as already been reflected above and it has been held that such rejection is illegal, arbitrary and improper it causes inconvenience, mental pain and sufferings to the complainants and thereby the complainants are entitled to get a further sum of Rs.15,000/- towards compensation for mental pain, agony and sufferings.

The status of the OP No.2 & 3 is nothing but an Agent and they have no role to satisfy the claim under the policy.

Under these facts and circumstances, the claim of the complainants are succeeded in part.

In the result, the case succeeds in part and the issues are decided in favour of the complainants.

Hence, it is

O R D E R E D

that consumer case no 76/S/2009 is allowed on contest in part against the OP No.1 with cost of Rs.1000/- and the case is dismissed Ex-parte against the OP No.2 & 3 but without cost.

The complainants are entitled to get a sum of Rs.68,000/- towards reimbursement of the entire medical expenses as incurred for Late Ananda Chowdhury, the deceased insured from the OP No.1 only.

The complainants are further entitled to get a sum of Rs.15,000/- towards compensation for mental pain, sufferings and agony.

The OP No.1/the Iffco Tokio General Insurance Co. Ltd. is directed to issue two A/C payee cheques equally towards the Awarded sum in the name of Smt. Chhaya Chowdhury, the mother of the deceased insured and Smt. Moumita Chowdhury, the widow of the deceased insured within 45 days from the date hereof failing which the amount shall carry interest @ 9% p.a. from the date of institution of the instant case i.e. 14.09.2009 till the realization of the Awarded sum.

Let the Xerox copies of this Judgement and order be supplied to the parties free of costs.

My Name is Rajni Ranjan, and my complaint is regarding the non redressal of my insurance claim from the lack lustre employees of iffco tokio, new delhi. The date of intimation of my complaint at Fortune Hyundai Greater noida was 14th sep 2011 and its almost 2.5 months and i have not got my claim cheque. To my surprise people responsible for the same have stopped picking my phone. Starting with
Mr vishal Maheshwari- frm Iffco(9910363020) – not picking my phone for the last 1 week
Mr Tangri (Surveyor)-9811115112- not picking my phone for last 45 days
Mr Sambhu – frm Iffco- - 01145787300-330 never ever picked the phone since the case informed.
Details of my policy are below-
Policy no- 74965205
Date of claim intimation and documents submission- 14th sept 2011
Now my claim is almost 2.5 months old and by not clearing it iffco people have ensured that i would never ever in my life take any product of Iffco Tokio and whoever i know or come across will get to know the same story and by this even you can calculate how much negative publicity iffco is gaining. Thank you