//JUDGMENT//

This is the complaint filed by one Smt.Ambamma and her Minor son Nandeesha against Respondents Iffco Tokio General Insurance Co. Ltd. under Sec-12 of C.P. Act for to direct the Respondents to pay insurance amount of Rs.2,00,000/- for the death of husband of Complainant No.1 K.Basavaraj and to award an amount of Rs.10,000/- towards damages, mental agony, hardship, loss sustained for deficiency in service, to award an amount of Rs.5,000/- towards cost of this litigation with interest @ 18% p.a. with other reliefs as deems fit to the circumstances of this case.

2. The brief facts of the Complainants case are that;

The husband of Complainant No.1 and the father Minor Complainant No.2 by name K.Basavaraj was the R.C. holder and owner of Bajaj Auto bearing No.KA-34/7106. He was having valid licence to drive it at his life time. The said vehicle was insured with Respondent Insurance Company and Insurance Policy holds good from 28/06/2006 to 27/06/2007. On 04/01/2007 at about 9.00 a.m. near country club of Bellary on public highway the said K.Basavaraj was driving the said vehicle and due to sudden application of breaks to it, it turned turtle, he sustained grievous injuries and died. Police complaint was filed in that regard. The Complainant No.1 and 2 are legal heirs filed claim petition before the Respondents, but their claim was not considered inspite of several requests. A legal notice was issued, but Respondents shown their negligence in settling their claim and thereby both Respondents were found deficiency in their services towards them as such they filed this complaint for the reliefs as prayed in it.



3. The Respondent Nos.1 and 2 appeared in this case through their advocate, the Respondent No.1 filed Written Version and Respondent No.2 adopted the W.V. of Respondent No.1. The brief facts of Written Version of them are that;

K.Basavaraj obtained Policy for his goods vehicle bearing Regn. No.KA-34/7106 and the said Policy valid from 28/06/2006 to 27/06/2007. The said vehicle was registered as a goods carriage and it was insured as a commercial vehicle in the insurance package. The Policy covers the risk for owner-cum-driver for Rs.2,00,000/-. On the said date, time and place K.Basavaraj was driving his luggage auto without valid and effective licence to drive it. The licence issued by RTO authorities not authorizes the K.Basavaraj to drive the luggage auto of him. Hence, it is violation of terms and conditions of Policy and thereby it was prayed by it to dismiss the complaint among other grounds.

4. In view of the pleadings of parties, now the points that arise for our consideration and determination are that;

1.
Whether the Complainants prove that, the deceased K.Basavaraj who is the husband of Complainant No.1 and father of Complainant No.2, was owner and R.C. holder of auto bearing Regn.No.KA-34/7106 insured with Respondents, was driving with valid licence to drive it. On 04/01/2007 at 9.00 a.m. near Country Club of Bellary on public road, the vehicle met with an accident, he died in the said accident. These Complainants being LRs. of deceased K.Basavaraj filed claim petition along with necessary records to the Respondents, but Respondents shown their negligence in settling their claim petition with untenable grounds and thereby both Respondents found guilty under deficiency in their services towards them?


2.
Whether the Complainants are entitled for reliefs as prayed in their complaint?

3.
To what relief the Complainants are entitled for?

//POINTS//

5.Our findings on the above points are as under.

Point No.1:
In Negative.

Point No.2:
In Negative.

Point No.3:
In view of the findings on Point Nos.1 and 2, we pass the final order for the following;

//REASONS//

Point Nos.1 & 2: -


6. In order to prove the facts involved in these two Points, the affidavit evidence of Complainant No.1 was filed, she was noted as P.W.1. Documents Ex.P.1 to Ex.P.16 are marked. On the other hand, the affidavit evidence of the Head, CSC of Respondent Insurance Company was filed, he was noted as R.W.1, no documents filed and marked. Both parties have not filed their written arguments.

7. On perusal of contents of Complaint, affidavit evidence of P.W.1, Written Version and affidavit evidence of R.W.1, some of the following facts are undisputed facts in between the parties.

1.There is no dispute with regard to legal heirship of Complainant Nos.1 and 2 of K.Basavaraj as Complainant No.1 being his wife and Complainant No.2 is as his minor son.
2.Ownership of K.Basavaraj to the auto goods carrier bearing No.KA-34/7106 is not in dispute.

3.Purchase of Insurance Policy by K.Basavaraj for the said auto rickshaw by covering the risk for owner-cum-driver to the extent of Rs.2,00,000/- from the Respondents Insurance Company is not in dispute.

4.The accident of the vehicle and death of K. Basavaraj in the said accident is disputed in the Written Version, but thereafter the Respondents have admitted it.

5.With regard to filing of claim petition by these Complainants with Respondents after the death of K.Basavaraj is also not in dispute.

8. In the light of circumstances stated above, we have referred two rulings of Hon’ble Supreme Court reported in 2007 ACJ 721 National Insurance Co. Ltd. Vs. Laxmi Narain Dhut and another ruling reported in AIR 1995 Supreme Court 1384 Chairman, Thiruvalluvar Vs. Consumer Protection Act.


9. The earlier ruling of Hon’ble Supreme Court is a latest decision to the later decided case. In later case, the Hon’ble Supreme Court held - Consumer Protection Act is not applicable to the cases arising out of accident claims due to death or fatal injuries sustained by the person in vehicle accident.

10. In the earlier decided case is the recent Judgment, their lordships of Hon’ble Supreme Court observed in Para No.22 of its Judgment in that case as the Forums created under C.P.Act 1986 are competent to adjudicate the claims relates to own damages. This kind of claims cannot be adjudicated by the Accident Tribunals.

11. In the light of law laid down by the Hon’ble Supreme Court in the latest case, we came to a conclusion that, this Forum has got jurisdiction to try the subject matter of this complaint.

12. Now, coming to the lonely point in dispute between the parties is that, according to the learned advocate for Complainant, deceased K.Basavaraj was having effective and valid licence to drive his own vehicle on the said date, time and place of accident. On the other hand, the learned advocate for Respondents contended that, deceased K.Basavaraj was not having a valid and effective driving licence to drive the said vehicle on the said date, time and place of accident.

13. In support of submission made by the learned advocate for Complainant, he referred R.C. extract of said vehicle Ex.P.2 and D.L. extract Ex.P.3. According to his submission, the vehicle bearing No.KA-34/7106 is a goods carrier. Its seating capacity is one as per R.C. extract Ex.P.2. His driving licence Ex.P.3 shows that he was having valid and effective licence to drive the said auto goods carriage as the vehicle mentioned in Ex.P.2 and Ex.P.3 is listed as a LMV as per Government Notification dated: 12/06/1989.

14. The learned advocate for Respondents also relied on documents Ex.P.2 and Ex.P.3 and contended that, the said vehicle is goods carrier, but licence of K.Basavaraj shows that he was having a licence to drive autorickshaw cab only, but the said vehicle mentioned in Ex.P.3 not similar to the vehicle mentioned in Ex.P.2 R.C. extract. The said vehicle of K.Basavaraj is goods carrier vehicle. As such, Ex.P.3 is not a valid driving licence to drive the said vehicle and thereby there was breach of conditions of driver clause of Insurance Policy Ex.P.1.
15. In support of the arguments advanced by the learned advocate for Respondents, he referred following rulings.

1.
Unreported decided case of Hon’ble Supreme Court in Civil Appeal No.1102 of 2009 dated: 18/02/2009 Oriental Insurance Co. Ltd. Vs. Angad Kol & Ors.

2.
2008 (1) T.A.C. 401 (S.C.) New India Assurance Co. Ltd. Vs. Prabhu Lal.

3.
III (2008) CPJ 191 (NC) United India Insurance Co. Ltd. Vs. Arvind Kumar Rajak.

4.
AIR 2008 SUPREME COURT 2266 New India Assurance Co. ltd. Vs. Roshanben Rahemansha Fakir & Anr.


16. In all the above said rulings, the Hon’ble Supreme Court held with regard to effective and valid licence to drive the particular class of vehicles and if there was no valid and effective licence to a driver to drive the particular class of vehicles then claim against Insurance Policy is not maintainable and thereby Insurance Company is not liable to pay any compensation.
17. Keeping in view of the submissions made on both sides and documents referred by them, we referred Ex.P.2 which is a copy of R.C. in which class of the said vehicle bearing No.KA-34/7106 was noted as goods carrier. On perusal of driving licence of K.Basavaraj Ex.P.3, it discloses that he was valid and effective D.L. to drive autorickshaw cab only. In Ex.P.3 there was no endorsement by RTO authority by stating that K.Basavaraj was having valid and effective licence to drive goods carrier. In view of documents Ex.P.2 and Ex.P.3, it is a fact that, goods carrier vehicle is different to the autorickshaw cab as mentioned in Ex.P.3.

18. Now, coming to the submission made by the learned advocate for Complainant in this regard. He contended that, the Govt. Notification dated; 12/06/1989 shows the list of vehicles called them as Light Motor Vehicles. In the said list, five types of vehicles have been listed as Three-wheelers-Passenger vehicle, auto rickshaw, motorized cycle rickshaw, invalid carriage and three-wheeler-goods carriage. According to his submission, all the said vehicles are listed as Light Motor Vehicles as such, holding licence to drive any one of the vehicle listed above is sufficient to drive other kinds of vehicles as listed. There is no need of endorsement by the RTO specifically in the Driving Licence in that regard as such, driving licence of auto rickshaw held by K.Basavaraj was valid and effective licence to drive a goods carrier which involved in the accident.

19. In pursuance of submissions made on both sides in this regard, Ex.P.3 shows that the driving licence held by the K.Basavaraj is only for to drive auto rickshaw cab. There is no mentioning in it by the competent authorities for his eligibility to drive other kinds of vehicles as noted in the said Notification. If there was an endorsement by the competent authority in Ex.P.3 for authorizing him to drive LMV without specifying the nature of vehicles then the arguments advanced by the learned advocate for Complainant holds good, but in the present case, Ex.P.3 shows that deceased K.Basavaraj was having effective and valid D.L. to drive auto rickshaw cab which is passenger carrying vehicle and not as goods carrier as mentioned in Ex.P.2. So it is a conclusive fact that, the deceased K.Basavaraj was not having valid and effective D.L. to drive present vehicle bearing No.KA-34/7106. The submission made by the learned advocate for Respondents in this regard and rulings referred above are supporting our conclusion that, the deceased K.Basavaraj was not having effective and valid D.L. to drive goods carrier i.e. vehicle bearing No.KA-34/7106 on the said date, time and place of accident.

20. Now coming to the next point for our consideration is as to whether such breach of contract with regard to non-possession of valid and effective driving licence to the drive it on the said date, time and place of accident is a fundamental breach of terms and conditions of Policy. To decide this factor, the law laid down by the Hon’ble Supreme Court in recent ruling reported in 2009 (1) CCC 6 (NS) Supreme Court National Insurance Co. Vs. Meena Agrawal is sufficient. In the said case, their lordships has observed as not having effective and valid licence for to drive the particular vehicle is a fundamental breach of terms and conditions of Policy and thereby their lordships of Hon’ble Supreme Court reversed the judgment of State Commission and National Commission by upholding the Judgment of District Forum.


21. The facts and circumstances of this case and the facts and circumstances that case dealt by their lordships of Hon’ble Supreme Court are similar as such, the case on hand cannot be considered as there was no fundamental breach of terms and conditions of Policy.
22. In view of facts and circumstances discussed above, we have not convinced from the submission made by the learned advocate for Complainant as there is deficiency in service by the Respondents. On the other hand, we have accepted the case of Respondents and thereby we have not noticed any deficiency in service on the part of these Respondents in non-settling the claim of Complainants and thereby we answered Point No.1 in Negative.

23. In view of findings on Point No.1, the Complainants are not entitled for any one of the reliefs as prayed in their complaint. Hence, Point No.2 is also answered in Negative.



Point No.3: -

24. In view of findings on Point Nos.1 & 2, we pass the following;

//ORDER//

The complaint filed by the Complainants is dismissed, leaving the parties at their own costs.



Inform the parties accordingly.
(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the Open Forum this 19th day of March 2009).

PRESIDENT,

DISTRICT FORUM, BELLARY.

MEMBER,

DISTRICT FORUM, BELLARY.

Consumer complaint No 259/08
Date of presentation: 12.9.2008
Date of decision: 7.4.2009

Sh. Gulshan Sharma son of Sh. Sham Lal, resident of village and Post Office Damtal, Tehsil Indora, District Kangra (HP)
Complainant Versus

1. The Richard Strauss Insurance Broking pvt. Ltd. SCO-11 2nd Floor PUDA Complex, Ladowali Road, Jallandhar ( Punjab) through its Branch Manager
2. IFFCO TOKIO General Insurance Company Ltd. Ist 2nd Floor, Sohan Singh Complex, Shastri Nagar, Near Railway Crossing, Ludhiana (Punjab) through its Branch Manager
3. IFFCO TOKIO General Insurance Company Ltd. C-1, District Centre Saket, New Delhi, through its Managing Director.
Opposite parties

Complaint under section 12 of the Consumer
Protection Act, 1986

PRESIDENT: A.S.JASWAL
MEMBERS: PABNA SHARMA AND PARDEEP DOGRA

For the complainant: Sh. Pankaj Sharma, Advocate
Opposite parties already exparte

ORDER
A, S, JASWAL, PRESIDENT (ORAL)

In nut-shell, the case of the complainant is that he got his truck( hereinafter referred to vehicle) insured comprehensively with opposite party No.2 through opposite party No.1 in the sum of Rs.12,25,000/- w.e.f. 22.11.2006 to 21.11.2007. A premium of Rs.30811/- was paid to the opposite parties. It is asserted that on dated 10.5.2007, he had parked his vehicle near Sham Lal Dhaba, which is run by his father. However, on the intervening night of 10/11.5.2007, the vehicle was stolen from outside the Dhaba where it had been parked and that the matter was reported to the Police. Despite the efforts having been made by the Police, the vehicle could not be traced and consequently the Police issued Un-traceable report in this context. Thereafter, he (complainant) lodged his claim before the opposite parties but they failed to settle his claim.
2. The opposite parties did not appear before the Forum and were proceeded against exparte on dated 4.11.2008.
3. The complainant adduced exparte evidence in support of his contention.
4. We have heard the learned counsel for the parties and have also gone through the record of the case carefully and minutely.
5. From the material on record, it stands proved that during the subsistence of the insurance Policy, the vehicle of the complainant bearing registration No.HP-38-B-4256 had been stolen on the intervening night of 10/11-5-2007 when the same was parked in front of the Dhaba of his father. The complainant has also placed on record copy of F.I.R., Annexure C-1 and photo copy of un-traceable report, AnnexureC-5 given by Assistant District Attorney, Indora District Kangra. We are of the view that on having made the claim before the opposite parties, they were under legal obligation to settle the same. Since, the opposite parties are providing public utility services to the complainant; they cannot deny the genuine claim of the complainant. The action of the opposite parties, in filing the claim of the complainant as No-Claim is nothing but great deficiency in service. Moreover, the opposite parties during the proceedings of the present complaint did not appear before this Forum and opted to remain exparte. It means that whatever has been pleaded by the complainant in his complaint as well as affidavit, the same has been admitted by them as true and correct.
6. Now, how this deficiency can be cured? Since the vehicle is insured with opposite party No.2 and 3, we are of the opinion that ends of justice will be met, in case, opposite parties No.1 and 2 are directed to pay the insured amount within 30 days after the receipt of copy of this order. Due to deficiency in service, the complainant has also suffered mental pain, agony and inconvenience and the ends of justice will be met in case, the opposite parties no.2 and 3 are directed to pay compensation, which is quantified at Rs.5000/-,.
7. In view of what has been stated above, the complaint is partly allowed and we order the opposite parties no.2 and 3 jointly and severally to pay the insured amount to the complainant within 30 days after the receipt of copy of this order, failing which it will carry interest @ 9% per annum from the date of complaint, till its realization. The opposite parties No.2 and 3 are also held liable to pay compensation to the tune of Rs.5000/- for causing him mental pain, agony and inconvenience. The complaint is allowed alongwith litigation costs of Rs.2000/-.

1.Smt. M.M. Ponnamma, Wife of Late M.C. Muthappa,
Aged 60 years,
R/o. Kattemadu Village,
Madikeri Taluk,
Kodagu District.

2.MR. M.M. Ganapathy,
S/o. of late M.C. Muthappa,
Aged 36 years,
R/o. Kattemadu Village,
Madikeri Taluk,
Kodagu District.

OPPOSITE PARTY:

1.IFFCO-TOKIO INSURANCE CO.LTD.,
Customer Service Centre,
IFFCO HOUSE, 3rd Floor, 34,
Nehru Place, New Delhi.

2.General Manager,
IFFCO-TOKIO Gen.Insurance Co.Ltd.,
No.42, Cristur Complex,
Levellee Road, Next to Mandovi Motors,
Bangalore.
O R D E R


M.R. DEVAPPA, PRESIDENT

Briefly stated the case of the complainant is as follows;
1.That one M.C. Muthappa the father of the 2nd complainant and husband of the 1st complainant, owning immovable properties in Kattemadu Village, Madikeri Taluk, used to buy chemical fertilizer to apply to their coffee plantation and the fertilizer have been manufactured by the 1st opposite party company and for having purchased the chemical fertilizer from the society i.e., Maragodu Vyavasaya Sahakara Bank Niyamitha, Maragodu. The said bank used to pass on the receipt in the name of late M.C. Muthappa and at the time of purchasing the manure, which itself is a insurance policy. The Iffco Chemical Manufacturing Company is having tie up with the Iffco Tokio Insurance Company and in the case the purchaser of the chemical fertilizer dies, the IFFCO-TOKIO Insurance Company is liable to pay insured amount to his legal heirs. In the instant case insured M.C. Muthappa died accidently on 24-12-2007 leaving behind his wife and son and as such the complainants are entitled to recover the insurance sum assured on the insured M.C. Muthappa from the opposite parties.

2.The complainants being legal heirs demanded for the said insurance amount through the authorized dealer of the opposite parties to which the opposite parties did not respond and ignore the claim of the complainant without justifiable grounds and further when the opposite parties failed to settle the claim they got legal notice issued through their counsel giving out all the details and the opposite parties, having received the notice did not turn up and failed to settle the claim which compelled the complainant to approach the Forum.

3.That the complainants are entitled to Rs.3,000/- per bag of the fertilizer subject to the maximum limit of Rs.1,00,000/-, because the complainants have purchased the fertilizers four times amounts to 171 bags. The complainants has asked for the following relief;

a)Directing the opposite parties to pay the sum of Rs.1,00,000/- being payable insured sum with interest at the rate of Rs.18% P.A till realization of the same by the complainants;
b)To award the damages towards the mental agony suffered by the complainants and the same is to be paid by the opposite parties and the cost of the proceedings deemed fit.

4.The complainant along with the complaint has produced the following documents;

1.Xerox copy of the purchased bills (4 in nos)
2.Xerox copy of the claim made
3.Letters of the authorized dealer (2 in Nos.)
4.Letter issued by the opposite parties.
5.Xerox copy of the Lawyer’s notice.
6.Post receipts and A.D. card.

5.Having admitted the complaint notice was ordered to be sent to the opposite parties. But on the date fixed for the appearance of the opposite party no.1 and 2, O.P 2 despite service of the notice on him remained absent without sufficient cause, as such he was placed exparte but as regards O.P.1, on that date the notice was not served and nor even returned to the Forum and remainder was ordered to be sent to the postal authorities and subsequently O.P 2’s counsel filed an application praying for setting aside the exparte order and the very day the appearance for O.P 1 was also fixed on which day the O.P 1 has taken notice remained absent without sufficient cause. Hence, O.P 1 was placed exparte.

6.The complainant had no objection to set-aside the exparte order against O.P 2 and hence order placing O.P 2 exparte was set-aside.

7.O.P.2’s counsel failed to file the version of O.P 2 though sufficient time was granted and therefore, the parties were directed to file their affidavit and accordingly the complainants advocate filed the affidavit. In the mean while O.P.2’s advocate filed an application to set-aside the exparte order and permit him to file version as the complainant’s counsel had no objection, permission was granted to file version and accordingly the version and affidavit of both O.P 1 and 2 was filed.

8.The opposite party no.1 and 2 have taken following contentions;

1.That the Hon’ble Forum has no jurisdiction to try the matter under CP Act since the facts are not coming within the purview of the Consumer Protection Act.

2.The insurance namely ‘Sankatharan policy’ is a contract between Iffco Tokeyo General Insurance Company Ltd., and their products and in case of accident and for permanent, partial disability due to the accident it covering capital sum insured of Rs.4,000/- for each and every purchase of Iffco and IPL fertilizer bags by any farmers subject to maximum capital sum insured of Rs.1,00,000/- of course subject to the terms and conditions of the policy and the original receipt of purchase is the only evidence of the said insurance to show that buyer is insured.

3.That the opposite party is not aware that the complainants are having a coffee plantation in Kattemadu Village and the same is to be proved by them by placing documentary evidence.

4.That it is not true that the deceased M.C. Muthappa had purchased chemical fertilizer through the authorized dealers of this opposite party.

5.That it is further denied that this opposite parties have issued an insurance policy called ‘Sankatharan Bima Yojana’, covering the life of the said deceased Muthappa.

6.That it is further denied that the fertilizers purchased in the name of the said M.C. Muthappa, delivery used to be taken and it is denied that the complainants used to purchase fertilizer from the authorized dealer, but neither late M.C. Muthappa nor their legal heirs have purchased the fertilizers from the authorized dealers.

7.That it is further submitted that as per the ‘Sankatharan Bima Yojna’ policy the person who purchases by cash should sign and his name should be mentioned on the receipt that too, in the column meant for the name of the purchaser and he should be actual purchaser and only the purchaser is always insured not other legal heirs, but as per the purchase bills late M.C. Muthappa is not a purchaser and therefore, he cannot be considered as a insured, as he has not signed on the purchase bill.

8.The complainants has no locus-standi to knock the doors of the Hon’ble Forum as such the complaint is liable to be dismissed.

9.That the averments made in para 3 of the complaint is not admitted. That the deceased M.C. Muthappa died due to accident on 24-4-2007 and left behind him the complainants as his legal heirs is not known to the opposite parties and complaints are liable to prove the same by placing documentary proof and as such the complainants can not recover the insurance amount from this opposite parties and therefore the opposite parties have rightly rejected the claim of the complainants. The other averments of the complaint are quite contrary to the opposite parties.

10.The averments made in para 4 and 5 of the complaint are denied as false.

11.There is no cause of action to this complaint as the deceased M.C. Muthappa and his legal heirs are not consumers.

12.That the complaint is not within time.

13.For the foregoing reasons the complaint is liable to be dismissed.

9.The O.P 2 has not chosen to file any document on his behalf.

10.Having regard to the averments made in the complaint and the defence taken by the opposite parties the following issues arise for determination.

1.Whether the opposite party no.1 and 2 have committed deficiency in service in not settling the claim of the complainants?

2.To what order ?



R E A S O N S


11.We have perused the receipts passed on from Maragodu Vyavasaya Seva Sahakara Bank Ltd., Maragodu to the deceased M.C. Muthappa who is none other than the husband of 1st complainant and father of 2nd complainant. The receipts are dated 18-6-2005 and the these receipt indicate that the said M.C. Muthappa had purchased 32 bags chemical manure and like wise the receipt dated 30-7-2006 reveal that the said M.C. Muthappa has purchased 33 bags. Like wise on 20-9-2005 another receipt is passed on from Maragodu Vyavasaya Seva Sahakara Bank Niyamitha for having sold 20 bags of chemical menure and likewise a another receipt dated 20-9-2005 is also issued in favour of M.C. Muthappa for having sold 85 bags of chemical manures. Therefore in all the receipts reveal the purchase of 171 bags of manures.

12.The complainant has also produced the copy of the claim form and another Xerox copy of the letter issued from Maragodu Vyavasayha Seva Sahakara Bank Niyamitha to one Jayarupa, General Manager, Iffco Tokeyo General Insurance Company Ltd., Levellee Road, Bangalore. Letter is dated 13-12-2007 and another letter issued by the said bank on 27-12-2007 requesting the General Manager of Iffco Tokeyo General Insurance Company Limited intimating the accidental death of M.C. Muthappa on 24-12-2007 and requesting the opposite party to settle the claim in respect of purchase of manure bags and the insurance amount thereon and another letter sent by the opposite party to the wife of deceased M.C. Muthappa intimating that the policy terms and conditions do not permit to settle the claim in favour of the legal heirs and therefore the claim petition is closed as ‘no claim’ to the extent of Rs.1,00,000/-.

13.The documents produced by the complainant clearly reveal that Sri. M.C. Muthappa has purchased the chemical manures and of course the name of the person who took delivery is mentioned N.M. Ponnamma wife of Sri.M.C. Muthappa and his son M.M. Ganpathy, but in all the bills the name of the deceased M.C. Muthappa is seen as purchaser. Since M.C. Muthappa died accidentally as per the scheme the legal heirs are entitled for the insured amount since the complainants are legal heirs they become eligible for Rs.1,00,000/-. But the main defence of the opposite party is that in the column mentioned showing the person taken delivery the name of M.C. Muthappa is not found but in some receipts his wife’s name is found and in some other receipt his son’s name is found, therefore they are not entitled for any insured amount. The said line of argument cannot be accepted because in all the receipts we find the name of M.C. Muthappa and the Maragodu Vyavasaha Seva Sahakara Bank Ltd., has also mentioned in the letter addressed to Jayroopa, General Manager, Iffco Tokeyo General Insurance Company Ltd., that M.C. Muthappa died accidentally and he had purchased Iffco NPK from them and therefore the opposite party was requested to sanction the insurance amount. Therefore, the contention and the defence taken by the opposite party is devoid of merit but the two letters addressed by the said bank supports the case of the complainant and therefore, the opposite party is bound to sanction the insured amount subject to the maximum of Rs.1,00,000/-. As it is found in the receipts and in the letter written by the bank the complainant has purchased on several occasions several bags of chemical manure but for one bag of chemical manure the sum assured is Rs.4,000/- and if Rs.4,000/- sum is insured per one bag for 33 bags it comes to Rs.1,32,000/-, but the maximum capital sum for which insured is entitled to Rs.1,00,000/-only as such the complainants are entitled for Rs.1,00,000/- only which cannot be denied to the complainants, at any rate as per the terms and conditions of the scheme as admitted by O.Ps.

14.The opposite parties in their version and affidavit have admitted that the cash purchase is only the evidence of the said insurance to determine the insurance, though they have not considered Sri.M.C. Muthappa, as purchaser.

15.The O.P has also raised several technical objections which are not serious in nature, because the Consumer Protection Act is a social and benevolent legislation while interpreting the Act normally liberal interpretation is to be given to the advantage of consumer, as such those technicalities do not assume importance.

16.In all the letters written to the Iffco Tokeyo Insurance Company by the Manager of Muragodu Vyavasaya Seva Sahakara Sangha; and in the affidavit filed by the Manager has virtually corroborated and supported the stand of the complainants and have mentioned also that M.C. Muthappa is the coffee planter and manure bags have been purchased by him for applying to his plantations. Therefore, it can be said that the complainants have placed sufficient materials to claim the insurance as legal heirs to Sri. M.C. Muthappa in whose name the receipts are issued. It might be that his wife and son have taken delivery on behalf of Sri. M.C. Muthappa. Therefore, it can be said that he is the insured and his wife and son are entitled to the insured amount of Rs.1,00,000/- as his legal heirs.

17.The opposite parties ought to have settled the claim of the complainants but have rejected the claim on flimsy grounds which amounts to deficiency in service and therefore, we answer point no.1 positively and proceed to pass the following order.

O R D E R

The complaint is allowed. The opposite party no.1 and 2 are jointly and severally liable to settle the claim of the complainants and therefore they are directed to pay the insurance sum of Rs.1,00,000/- along with 10% interest thereon from the date when the claim is rejected till its final realisation to the complainants and further they are directed to pay the compensation of Rs.1,000/- to each of the complainant and Rs.1,000/- towards the cost of this proceedings to the complainants.

Annem Venkatarami Reddy,
S/o Venkataswami Reddy, R/o Raparla,
N.G. Padu Mandal, Prakasam District. ... Complainant.
Vs.

1. The Tobacco Board, rep. by The Auction Superintendent,
Plot form No.23, Throvagunta (P), G.T. Road, Ongole – Mandal.

2. The Iffco-Tokio General Insurance Co. Limited,
rep. by The Branch Manager, office No.3,
II floor, D.No.47/11/8, G.K.Towers,
Dwaraka Nagar, Visakhapatnam – 16, A.P.
…Opposite parties.

ORDER:

1. This is a complaint filed by the complainant under Section 12 of Consumer Protection Act, 1986 directing the opposite parties to pay the balance of the policy amount of Rs.81,000/- together with interest and costs of litigation.

2. The averments in the complaint are as fallows: The complainant is the owner of Tobacco Barn Bearing TB No. 19-16-3045 and the same was insured with the 2nd opposite party. The policy was inforce from 09.11.2005 to 08.11.2006. Unfortunately on 29/30.10.2006 the barn of the complainant was damaged totally due to cyclone and the same was informed to the 2nd opposite party. The 2nd opposite party deputed a surveyor to asses the loss. Basing on the report of the surveyor, the 2nd opposite party paid an amount of Rs.19,000/- on 19.02.2007 to the complainant and promised to pay the balance insurance amount within a short period after discussing with the higher authorities. Subsequently, inspite of repeated demands the 2nd opposite party failed to pay the balance amount of Rs.81,000/- to the complainant. Since the barn was totally damaged, the 2nd opposite party is liable to pay the insurance amount of Rs.1,00,000/- to the complainant. But only paid Rs.19,000/- and fail to pay the balance of Rs.81,000/-. Under these circumstances the complainant is constrained to file the present case.

3. The 1st opposite party filed its counter contending as follows: It is true that due to the cyclonic rains the barn of the complainant was fully damaged. On coming to know about the damage the 1st opposite party visited the barn and intimated the same to the 2nd opposite party. The 2nd opposite party alone is liable to pay the insurance amount and prays the forum to dismiss the complaint against the 1st opposite party.

4. The 2nd opposite party filed its counter contending as fallows: After coming to know about the damage caused to the barn of the complainant the 2nd opposite party appointed an independent surveyor to assess the loss. The surveyor assessed the loss and recommended for payment of Rs.19,000/- towards loss of the barn. Accordingly the 2nd opposite party sent a cheque for Rs.19,000/- to the complainant and the same was received by the complainant towards full and final settlement of his claim. The complainant has not taken any steps to get the loss assessed through any independent surveyor. The loss and damage of the barn calculated by the complainant is baseless and not admissible. The 2nd opposite party paid Rs.19,000/- as recommended by the surveyor to the complainant and the complainant is not entitled to receive the amount claimed in the complaint and the present complaint is liable to be dismissed with costs.

5. On behalf of the complainant Exs.A1 to Ex.A3 were marked. The Ex.A1 is the xerox copy of the Damage Certificate dated 15.11.2006 by the Panchayat Secretary, Gram Panchayat, Raparla. Ex.A2 is the Xerox copy of the Survey Report dated 23.11.2006 and photo of damaged barn. Ex.A3 is the Xerox copy of statement showing the particulars of damage caused to Tobacco barn issued by the Auction Superintendent, Tobacco Board, Ongole.

6. On behalf of the 2nd opposite party Exs.B1 was marked. The Ex.B1 is the Surveyor report dated 02.01.2007.
7. The point for consideration is whether the complainant is entitled for the reliefs in the complaint.

8. It is not in dispute that the complainant is the owner of a Tobacco Curing Barn Vide TB No. 19-16-3045 and the said barn was insured with the 2nd opposite party. The policy was inforce from 09.11.2005 to 08.11.2006. It is also an admitted case that the barn of the complainant was fully damaged due to cyclone on 29/30.10.2006.

9. The case of the complainant is that he informed the 2nd opposite party about the damage and the 2nd opposite party paid only Rs.19,000/- instead of the insurance amount of Rs.1,00,000/- and hence, he filed the complaint for the balance amount of Rs.81,000/-.

10. The learned counsel for the 2nd opposite party argued that the complainant has received Rs.19,000/- as assessed by the surveyor towards full and final settlement of his claim and now he is estopped from claiming further amount by filing the present case and the complaint is liable to be dismissed.

11. The learned counsel for the complainant argued that due to financial difficulties the complainant was constrained to receive the cheque for Rs.19,000/- and since the barn was fully damaged and the complainant sustained heavy loss he is constrained to file the present case for the balance amount and the present complaint is maintainable. In support of his argument the complainant relied upon the decision in National Insurance Co. Limited Vs. Vasavi Traders I (2008) CPJ 487 (NC), in which it was held that “Consumer Protection Act, 1986 – Section 21 (b) – Insurance – Full and final settlement of claim – Fire accident – Entire stock burnt – Business had come to stand still – Complainant constrained to sign discharge voucher due to financial crisis – Complaint filed for balance amount – Coercive bargaining indulged in by Insurance Company – distressed insured who lost all means of earning livelihood, has no other choice but to accept any amount as initial payment in first instance – state commission granted average
of amount claimed by complainant and assessed of amount claimed by complainant and assessed by Surveyor – Payment of differential amount with interest directed – No interference required in revision.”

12. In view of the decision cited above I am of the opinion that the present complaint is maintainable.

13. In the present case, the 2nd opposite party appointed a surveyor to assess the loss and the surveyor inspected the damaged barn and assessed the loss and filed his report. The complainant has not taken any steps to get the loss assessed. In the absence of any other evidence from the side of the complainant, the forum can take into consideration the report of the surveyor while assessing the loss.

14. Ex.B1 is the survey report. In his report, the surveyor stated that “the barn northern side wall was collapsed completely and all the stones and bricks were broken into pieces. The eastern side wall ¼ portion was collapsed and it was cracked vertically at its middle and it may be collapse at any movement and in addition to the above the inner layer of its thickness was scaled down due to rains. The western side wall is also in the same condition and both the walls half portions are need to be re-built. Tires – 12 nos, purling-6 nos were broken. Roof sheets – 6 nos were folded and cut at the folding. Flue pipes set was under the debris. Therefore the barn needs to re-built the northern side wall and half portions of east and west side walls including plastering.

The surveyor assessed the loss as Rs.37,870/- but deducted 20% towards depreciation. As per the survey report, bricks and stones used for the construction of the barn were broken to pieces and the barn has to be rebuilt. Since the bricks and stones are broken to pieces they may not be useful for reconstruction of the barn. Therefore, I am of the opinion that deduction of 20% towards depreciation is not reasonable. The surveyor assessed the loss as 37,870/-. If the salvage value of Rs.1,296/- is deducted from Rs.37,870/-. The loss works out to Rs.36,574/-. As per the terms and conditions of the policy, the policy does not cover the first Rs.10,000/- for each and every loss arising out of other perils in respect of which the insured is indemnified by this policy. The excess shall apply per event per insured. Therefore, after deduction of policy excess amount of Rs.10,000/- the loss works out to Rs.36,574/- -- Rs.10,000/- = Rs.26,574/-. The complainant already received Rs.19,000/-. If Rs.19,000/- is deducted from Rs.26,574/-. The balance payable works out to Rs.7,574/-. This is the amount the complainant is entitled to receive from the 2nd opposite party.

15. In the result, petition is allowed in part directing the 2nd opposite party to pay balance amount of Rs.7,574/- along with interest @ 9% p.a., from two months after the report of the surveyor i.e., from 02.03.2007 till the date of payment to the complainant. The complainant is also entitled to receive Rs.2,000/- as compensation towards mental agony and Rs.1,000/- towards costs of litigation. The petition against the 1st opposite party is dismissed without costs.

1. Put shortly, the facts of the case :-

The complainant is a mediclaim policy holder issued by the 2nd opposite party. The 1st opposite party is the agency to settle the claim pertaining to the policy. The complainant had undergone treatment for vascular headache from 15-05-2008 to 16-05-2008 at Devamatha Hospital, Koothattukulam. He incurred Rs. 3,735/- as treatment expenses. The claim of the complainant was repudiated by the 1st opposite party by letter dated 26-06-08 stating that hospitalisation is not warranted for the treatment received by him. The inpatient treatment of the complainant was according to the decision of the doctor who treated him. Hence the complainant approaches this Forum seeking direction against the opposite parties to pay the claim amount with interest at the rate of 12% with compensation and cost.


2. The 1st opposite party resisted the complaint on the following grounds :-

i) The 1st opposite party is the 3rd party administrator to the 2nd opposite party.

ii) From the medical records, it can be seen that the claim pertained to Vascular Headache Hypertension. His BP was normal at the time of admission. The treatment given could have been taken as OPD basis.


3. The 2nd opposite party opposed the complaint stating as follows :-

i) The complainant is holder of Medi shield Policy No. 52051634.

ii) While perusing the case summary and discharge records, it can be seen that the complainant was a known hypertensive on treatment since 6 years. The given treatment can be very well be taken as OPD basis and hospitalisation is unwarranted.

iii) The complainant is not entitled for any of the reliefs as prayed in the complaint.

iv) The 2nd opposite party requests to dismiss the complaint with compensatory costs.

4. No oral evidence was adduced by the complainant. Exts. A1 and A2 were marked from his side. Neither oral nor documentary evidence was adduced by the opposite parties. The respective counsel were heard.


5. The points that originated for our determination :-

i) Whether the complainant is entitled for mediclaim?

ii) Compensation and cost?

6. Point Nos. i) and ii) :- The short point to be discussed by us is with regard to the ground of rejection of the claim. Ext. A2 is the repudiation letter, it reads as follows: “Present claim is for Vascular Headache Hypertension. As per the submitted documents, it is clear that the patient's BP is normal at the time of admission and also the given treatment can very well be taken as OPD basis. Hence hospitalisation is not warranted. So claim is rejected.” Ext. A1 case summary and discharge record would show that the complainant was treated as IP from 15-05-08 to 16-05-08 and his ailment was diagnosed as “Vascular head ache”.


7. Apart from the oral submission of the learned counsel for the 1st opposite party, there is no evidence before us to show that IP treatment is not necessary for the above illness. The 1st opposite party ought to have adduced evidence to disprove the contents of Ext. A1 certificate. Moreover, the doctor who treated the patient is to decide whether IP treatment or OP treatment is required for the ailment. Hence we are of the considered view that the reason for repudiation as stated above is unsustainable and thereby the opposite parties are liable to pay the insurance claim of Rs. 3,750/- to the complainant. Considering the facts and circumstances of the case, we are not ordering any compensation. The opposite parties should have taken a broad minded approach while dealing with the mediclaim of the complainant. Therefore, the opposite parties are liable to pay litigation cost to the complainant.

8. In the result, we allow the complaint and direct as follows :-

i) The 2nd opposite party shall pay mediclaim of Rs. 3,750/- to the complainant with interest at the rate of 12% p.a. from the date of complaint till realisation.

ii) The opposite parties shall jointly and severally pay litigation cost of Rs. 1,000/- to the complainant.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Tmt. M. Savithiri,

w/o Shri T.R. Muthumanickam,

No.7, Muthumanthope,

S.S.D. Road, Tiruchengode 637 211

Namakkal District. .. Complainant



/versus/

1. M/s. Iffco – Tokio,

General Insurance Company Limited,

Tulsi Chambers, 3rd Floor,

195, T.V. Samy Road(W),

R.S.Puram, Coimbatore 641 002.



2. M/s. A.A. Enterprises,

86, C/E, Sankari Road,

Opp. To Karur Vysya Bank,

Tiruchengode 637 211.

Namakkal District. ..Opposite Parties



This complaint coming on 30th day of June 2009 for final hearing before us in the presence of Thiru S. Rangasamy, Counsel for Complainant and the opposite parties have chosen to set exparte and after hearing the complainant and after perusing the documents and having stood over till this day for consideration, this Forum passed the following order:
ORDER

1. The facts of the complaint are as follows:

The complainant is the owner of Omini Toyata Qualis bearing No. TN-34 A 4336. The said vehicle is insured with the first opposite party through the 2nd opposite party. The said vehicle met with an accident fortnight prior to 26.12.2006. The vehicle was left with M/s. Anamalis Toyata, Coimbatore for repairs on paying Rs.5,612/- on 23.12.2006 and they demanded Rs.2,53,346/- without taxes. The complainant had then entrusted the vehicle with M/s. Sree Sabari Auto Carriage, Coimbatore and he has completed the repairs and charged Rs. 97,327.50. The complainant had submitted claim form and the opposite party had sent a draft only for Rs.22,897/- dated 30.3.2007. The complainant had issued legal notice to the opposite party to settle balance amount of Rs.74,430/-, for which there is no reply. The complainant alleges delay in settlement of claim as deficiency in service and has lodged this complaint for settlement of the balance claim amount, compensation, cost etc.



2. The first opposite party has filed written version and their contentions in short are as follows:

The first opposite party has stated that the complaint is not maintainable as the alleged accident had occurred at Coimbatore and the first opposite party is also situated at Coimbatore. The accident to the vehicle is also not admitted. The accident was not intimated to them. A sum of Rs.22, 897/- was paid for the damages caused to the vehicle. Only on the basis of the surveyor report a sum of Rs.22,897/- was paid in full quit and the same was received by the complainant in full quit. The complaint is barred by limitation. There is no deficiency in service on the part of the opposite parties and hence the complaint has to be dismissed.



3. The points for consideration are

1) Whether this Forum has territorial jurisdiction to adjudicate the complaint?

2) Whether there is any deficiency in service on the part of the opposite parties and if so to what relief the complainant is entitled for?



4. POINT No.1 : The complainant has filed proof affidavit along with 9 documents and the same has been marked as Exhibits A1 to A9 and the opposite parties have not filed their proof affidavit.



5. The complainant is the owner of Omini Toyata Qualis bearing No. TN-34 A 4336. The said vehicle is insured with the first opposite party through the 2nd opposite party. The 2nd opposite party is the agent of the 1st opposite party. The 2nd opposite party has received the premium amount from the complainant after inspecting the vehicle and completing other formalities at his office and policy has been issued. The copy of insurance policy has been produced and placed before us as Exhibit A2. A perusal of Exhibit A2, it can be seen that it contains the name and address of the second opposite party. The first opposite party has admitted that 2nd opposite party is their agent carrying on business for them. The office of the second opposite party is situated and carries on business within the jurisdiction of this Hon’ble Forum and hence we hold that this Forum has territorial jurisdiction to adjudicate the complaint. Point No.1 is answered accordingly.



6. POINT No.2 : The complainant is the owner of Omini Toyata Qualis bearing No. TN-34 A 4336. The R.C. book has been produced and placed before us as Exhibit A1. The said vehicle is insured with the first opposite party through the 2nd opposite party. The copy of insurance policy has been produced and placed before us as Exhibit A2. A perusal of Exhibit A2, it can be seen that it contains the name and address of the second opposite party. The second opposite party is the agent of the first opposite party. The said vehicle met with an accident fortnight prior to 26.12.2006. The complainant has not stated either in his complaint or proof affidavit the exact date, time and place of the alleged accident.

The manner of accident or vehicle involved in the accident too has not been stated. No First Information Report of the Police Department nor the Motor Vehicle Inspection report has been placed before this Forum by the complainant. The complainant has not proved the accident to the vehicle with any documentary evidence. The first opposite party denies the accident in his written version and also contends that they have not been informed about the accident. But at the same time, the opposite party had stated that their surveyor had inspected the vehicle and on the basis of the surveyor report they have settled Rs.22,897/- for damages. The opposite parties too had not produced and placed before us the Surveyor report. The complainant too had not taken any steps either to examine the surveyor or any other person. The complainant had stated that vehicle was left with M/s. Anamalis Toyata, Coimbatore for repairs on paying Rs. 5,612/- on 23.12.2006 and they demanded Rs. 2,53,346/- without taxes.

The complainant had then entrusted the vehicle with M/s. Sree Sabari Auto Carriage, Coimbatore and they have completed the repairs and chargaed Rs.97,327.50. The first opposite party has contended that M/s. Sree Sabari Auto Carriage is not authorized to carry out repairs etc. The complainant states that she submitted claim form and the opposite parties had sent a draft only for Rs. 22,897/- dated 30.3.2007. The complainant had produced and placed before us only the copy of document and the enclosed letter which would have given a picture towards the settlement has not been produced and placed before us. The complainant had issued a legal notice to the opposite parties to settle balance amount of Rs.74,430/-, for which there is no reply. But the opposite parties contended that the claim amount has been received by the complainant in full quit and has signed vouchers without any protest. The complainant too has not stated that the said claim amount has been received by them under protest or by reserving her right to initiate legal proceedings etc.



7. It is rather surprising that the first opposite party has denied the accident to the vehicle and at the same time they admit that they have settled Rs.22,897/- in full quit for damages. How and why the first opposite party settled the claim amount when they dispute the accident to the vehicle itself has not been answered. The accident has not been proved by the complainant through documentary evidence or in any other manner. Both the complainant as well as the opposite parties have conspicuously maintained stoic silence in this regard. In view of the above discussions and on perusal of the documentary evidences placed before us we are not inclined to grant any relief to the complainant. Point No. 2 is answered accordingly.


8. In the result, the complaint is dismissed. No order as to costs.

Shri Mihir Ch. Paul

Near Venus Club- Beltalapark

P.O. Beltala Park

P.S.- Balurghat,

Dist. Dakshin Dinajpur, W. Bengal 733103…………………………Complainant



V-E-R-S-U-S


1. The Divisional Manager,

IFFCO – TOKIO General Insurance Company Ltd.

9/1, Metro Towers,

1, Ho Chi Minh Sarani, Kolkata – 700 071

2. The Branch Manager,

Golden Trust Financial Services,

Balurghat Branch, (Near 3½ No. More)

P.O. Balurghat,

Dist. Dakshin Dinajpur. Pin- 733101. ………………………Opposite Parties


Instant CC case bases upon a complaint u/s 12 C.P. Act, brought by the complainant Sri Mihir Ch. Paul on 15.01.2009 against the Divisional Manager, IFFCO-TOKIO General Insurance Company Ltd. and the Branch Manager, Golden Trust Financial Services, Balurghat Branch alleging deficiency in service.

Complainant’s case as it appears from the said complaint, in brief, is that he obtained coverage of mediclaim insurance policy by making payment of a sum of Rs.1,580/- to the GTFS Balurghat Branch – the OP 2 herein on 2.12.2005. He got coverage of the policy renewed for the 2nd year on 9.5.2006 and for the 3rd year on 25.5.2007. On 23.5.2008 while he approached to the office of the OP 2 for renewal for the 4th year he was informed by his agent that the “tie up” of the GTFS with the IFFCO-TOKIO GIC – the OP 1 herein, had come to an end and that the running policies would now to be renewed through the Reliance General Insurance. with whom “tie up” had been made. It was then disclosed by the complainant that he does not have any objection to such renewal in case the seniority in respect of coverage of the insurance is maintained. Having been assured about the maintaining of the seniority the complainant made over a cheque of an amount of Rs.2,425/- against which a provisional receipt was granted to him and his signature was obtained on some papers.

After some time complainant received a letter enclosing a cheque for the said amount of Rs.2,425/- and informing him that the proposal for the further coverage of the insurance would not to be accepted without medical report and M.D.’s certificate. The men of the OP 2 having seen the said letter stated that the policy was to be made afresh and that the seniority could not be maintained. Complainant’s approach made thereafter to the agent and to the office of the OP 2 and the representation made to the OP 1 for redressal proved abortive. The complainant is 62 years of age. Hardly he would get any fresh mediclaim policy covering all of the disease at such old age.

In the back drop of such circumstances, the complainant brought the complaint seeking compensation of an amount of Rs.4,50,000/- and for getting the OPs warned.

OP 1 & 2 contested the proceeding by presenting their respective written versions on 8.4.2009 and on 23.3.2009.

The OP 2 – GTFS in its written version stated that it had been arranging medi-claim insurance coverage for the members of their club named ‘Golden Multi Services Club Ltd.’ through different insurance companies. It had made arrangement with IFFCO TOKIO G.I.C.–the OP 1 herein, for availing group policy known as “Medisheild Insurance”. Subsequently the said OP 1 took a decision of not continuing the medical insurance coverage. Its approach made to the OP 1 for continuation of the coverage did not yield any result. OP 2 also took up the matter with their Chief Executive Officer and the M.D. and with their Kolkata Regional Head but did not get any response.

In view of the OP 1’s not continuing Medisheild coverage the OP 2 attempted to get such coverage from Reliance General Insurance but they also did not agree to allow the renewal benefit of such mediclaim policies. The OP 2 is not a licensed insurer and in such a situation it has become impossible for the OP 2 to extend the benefit of renewal to their existing holders of the certificate of coverage of Medisheild policy and so there has been no deficiency in service on the part of OP2.

OP 1 – IFFCO TOKIO G.I.C. in its written version dt. 8.4.2009 stated that the complainant is not a consumer under it and so the complaint brought by the complainant is untenable. It has been the case of the OP 1 that such OP entered into an agreement with Golden Multi Services Club of the OP 2 over providing of fresh and renewal insurance coverages to the members of the said Golden Multi Services Club Ltd., but such agreement was for a limited period. In fact, the said agreement remained effective till 30.6.2007. After the termination of the said agreement the OP 2 has been continuing their insurance services through Reliance General Insurance and it is the OP 2 who is to arrange for the benefit of continuous insurance and that such OP 1 does not have any liability to compensate the complainant for non-continuation of the policy.

Upon the pleadings of the sides following points come up for determination:-
Points

1.

Is the proceeding maintainable?
2.

Has there been deficiency in service on the part of the two OPs?

Is the complainant entitled to the reliefs sought for by him?

Decision with reasons:

Averments made in the complaint appear to have been authenticated by the complainant by putting his signature. The complainant also in support of his case, filed copies of a number of documents some of which were annexed to the POC while others were filed separately on 9.6.2009 with notice to the two OPs. Such documents include copy of the insurance coverage certificates for the years 2005-06, 2006-07, 2007-08, a number of receipts granted to the complainant by the OP 2, a letter dt. 19.6.2008 issued from the Reliance General Insurance to the complainant informing their inability to accept the proposal for insurance policy.

The written version of OP 1 has been verified by the constituted attorney of such OP 1 insurer company. Further, OP 1 in support of its case filed on 9.6.2009 with notice to the complainant and to the OP 2 a copy of the MOU executed in between it and the OP 2 on 23.8.2002 over the providing of insurance coverages to the members of the OP 2.


The averments made in the w.v. of OP 2 have been verified by one Saugata Banerjee whose identity, however, does not appear to have been divulged. OP 2 also in support of its case annexed to its w.v. copy of OP 1’s letter dt. 16.5.2007 informing that they would not provide insurance coverage since after expiry of 30.6.2007, and its two letters addressed to the OP 2 asking for providing of the insurance coverage even since after that date 30.6.2007.

No other evidence was adduced in the case.

Let us now enter into the determination on the different points formulated above:


Point No.1:


In course of hearing maintainability of the proceeding was assailed by the Ld. Counsel for OP 1 contending that the complainant was not a consumer under such OP 1. Ld. Counsel for the OP 2 also assailed the tenability urging that the OP 2 is simply a facilitator of the extension of coverage of insurance and that the complainant could not be regarded to have been a consumer under such OP 2.


U/s 2(1)(o), C.P. Act providing of the facility of insurance to potential users has been expressly enumerated to be a “service”. It virtually remains admitted in this case that the OP 1 insurance company granted extension of coverage of insurance



under Group Medisheild policy to the complainant during three years 2005-06, 2006-07, 2007-08 having obtained premium therefor from the complainant. Since the OP 1 granted the extension of coverage of insurance to the complainant having received premium therefor, it has to be regarded that the complainant became a consumer under such OP 1 insurance company. Making of payment of the premium through OP 2 – GTFS does not make any difference. It therefore cannot be regarded that the complainant was not a consumer vis-à-vis, OP 1 insurance company.


Copies of the receipts dt. 21.2.2005, 9.5.2006 and 25.5.2007 granted by the OP 2 in favour of the complainant go to indicate that the OP 2 received from the complainant beside the premia for health insurance, amounts under the heads enrollment fees, registration fees, service charges etc. It can therefore be regarded that the OP 2 facilitated the extension of coverage of insurance to the complainant from the OP 1 insurance company having received service charges too from the complainant. Such being the position, we think, the complainant can be viewed to have availed of some service for consideration from the OP 2 and so such complainant can very well be regarded to have been a consumer in relation to the OP 2 too.


No other point was urged assailing maintainability. On the materials on record we do not find anything else which may render the proceeding untenable. We thus answer this Point 1 in the affirmative by holding that the proceeding is maintainable.


Point No.2:

Here the complaint has been brought against the insurance company and against the GTFS - the holder of the Group Medical Insurance Policy. It has not been claimed in the complaint that from the side of the OP 1 insurance company there was, in fact, express representation that the insurance company would renew the extension of coverage of insurance for subsequent years too.

Here it is not in dispute that the complainant got the insurance coverage certificate virtually renewed for the 2nd year and thereafter for the 3rd year.


Copies of the certificates of extension of coverage of insurance granted by the OP 1 insurance company favouring the complainant purports that the certificates were issued expressing insurers obligation of indemnifying the complainant up to the certain limit in appropriate cases for a period of one year only. No where in such certificate there appear explicit terms for providing of renewal facilities for further period. However, under the head “exclusions” appearing at the back side of such policies there appears terms relieving the insurance company to indemnify in case of insurer’s contracting some diseases during the first 30 days of commencement of policy. It also appears to have been provided thereunder that the said exclusion would not be operative in case of a continuous policy in the sense of insured’s remaining covered under some medical policy during the preceding the 12 months period. Similarly, there also appears ‘first year’s exclusion’ clause.

The said enumerated circumstances under which “exclusion clause” would turn inoperative implies that the insured has the right of making of policy ‘continuous’ for over a period of one year term too, in other words, the right of getting the policy renewed, of course, subject to some formalities like making of payment of premium for further term before expiry of the existing term.

In the case of United India Insurance Company–vs–Manubhai Dharmasinhbhai Gajera & Others reported in 2008 CTJ 794 Supreme Court (CP) the Hon’ble Apex Court in the back drop of almost similar situation making advertence to various regulations issued from the IRDA and previous pronouncements recorded an observation (in Para 65 of the judgement) that renewal of a mediclaim policy subject to just exceptions should ordinary be made.

Here in the case in hand before us the complainant was not the holder of a policy directly under the OP 1 – insurance company. The complainant as a member of the club of the OP 2–GTFS was granted the extension of coverage of the insurance policy issued to the said OP 2 from the OP 1 insurer company. Clause 22 of the MOU executed in between the OP 1 insurer company and the OP 2, on 23.8.2002 (filed by OP 1 on 9.6.2009 with notice to the complainant and the OP 2) provided that the said MOU was to remain valid for three years and that it could be renewed for further periods on mutual consent.

Copy of OP 1’s letter dt. 16.5.2007 (filed by the OP 2 on 9.6.2009) goes to show that the OP 2 declined to provide fresh or renewal insurance coverage after the expiry of 30.6.2007 i.e. virtually declined to keep said MOU effective after the expiry on 30.6.2007. It remains admitted by the OP 2 that its “tie up” with the OP 1 insurer company had, in fact, been ended. As the complainant obtained the extension of coverage of the group policy issued to the OP 2 and as the “tie up” in between OP 1 and OP 2 ended with the expiry of 30.6.2007, we think, the OP 1 could not be regarded to remain under obligation to renew the extension of coverage of the insurance policy to the complainant. In the situation It cannot be regarded that there was deficiency in service on the part of OP1 insurance company.

Here it has virtually been the claim of the complainant made in his complaint that on 23.5.2008 i.e. before the expiry of the 3rd year of the insurance coverage while he went to the office of the OP 2 it was represented to him by the men of the office of OP 2 and by the Agent that the seniority of coverage of the insurance policy would be maintained in the event the complainant seeks renewal of coverage of insurance for the subsequent year. The OP 2 in its written version does not appear to have specifically denied about making of aforesaid representation from its end.

It is true that the OP 2 itself is not an insurer company. It is also true that the OP 2’s letter dt. 26.5.2008 and 30.5.2008 go to indicate that the OP 2 made request to the OP 1 for advancing the facilities of renewal of coverage of insurance. Such request proved abortive. The OP 2-GTFS could not remain silent simply in view of OP 1’s declining to advance the facilities of insurance coverage further. It was representation from their end that they would arrange for renewal of the insurance coverage maintaining seniority. They claim to have made a “tie up” with Reliance General Insurance for providing of insurance coverage.

Copy of letter dt. 19.6.2008 issued to the complainant from side of the said Reliance General Insurance (filed by the complainant) goes to show that such insurance company – Reliance General Insurance virtually declined to advance the facility of renewal of insurance coverage. OP 2 has not brought on record the MOU or the agreement executed in between such OP 2 and the said Reliance General Insurance. In the situation it may be presumed that the OP 2 did not make arrangement for advancing the facility of renewal of the medical insurance policy by the said insurer Reliance General Insurance - the concern with which they claimed to have subsequently made the “tie up”. Failure to make such arrangements despite giving of assurance tantamounts to deficiency in service on the part of the OP 2.

Point No. 2 is thus decided by holding that even though there was no deficiency in service on the part of OP 1 insurance company; there was a deficiency in service on the part of OP 2 – GTFS.

Point No.3:

We have already decided the Point No.2 by holding that there was no deficiency in service on the part of OP 1 but the failure of OP 2 in making arrangements for renewal of the medical insurance coverage for the complainant despite giving of assurance, has to be viewed to have been deficiency in service on the part of OP 2. It virtually goes undisputed that such OP 2 is not an authorized to carry on the business of insurance.

Copy of the certificate of coverage of the medical insurance policy for the year 1.6.2007 to 31.5.2008 (filed by the complainant) goes to show that the medical insurance coverage was for only two persons namely the complainant and his wife. Such certificate also purports that the said two persons were 59 years of age at the time of issuance of the said certificate. So the two insured namely the complainant and his wife have now crossed 60 years of age.

It would not be unwise to think that in case of taking up of any medical insurance policy afresh now the said two persons would not be indemnified in respect of treatment of some ailments in view of “first 30 days exclusion clause” and in respect of treatment of some diseases in view of “first year exclusion clause” ordinarily appearing in such medical insurance policy certificates. Sum assured in respect of each of the two insured in above policy has been shown to be of Rs.50,000/-. Even though the complainant sought for compensation of an amount of Rs.4,50,000/-, from a consideration of the attendant of circumstances, we think it proper to allow the complainant to get compensation of an amount of Rs.10,000/- only from the OP 2 – GTFS.

The complainant was not required to engage any member of legal profession for conducting his case. From a consideration of the circumstances, we think it proper to allow to the complainant to get further an amount of Rs.500/- from OP 2 GTFS as costs of this proceeding.

Point No. 3 is thus answered.

The three points are thus decided.

In the result, the complaint succeeds in part.

It appears from the case record that the service of notice of this proceeding was completed on 22.1.2009. Instant case remained pending for nearly five months since the completion of service of notice. This is, as we find from the case record, in view of failure on the part of the two OPs in taking appropriate steps in time.


Under such circumstances, it is.

O R D E R E D


That the complaint u/s 12 of CP Act brought by the complainant Shri Mihir Ch. Paul on 15.1.2009 is allowed in part on contest.

The OP 2 – the Branch Manager, Golden Trust Financial Services, Balurghat Branch shall pay to the complainant within 30 days from the service of copy of this order upon it, a sum of Rs.10,000/- by way of compensation and further a sum of Rs.500/- as costs of this proceeding.

1. Neelam Rathore wife of Sh. Sanjeev Kumar Rathore

2. Chirag Rathore( minor)

3. Annurag Rathore )( minor )

both sons of late Sh. Sanjeev Kumar Rathore.



Both minors through their natural guardian and mother Smt. Neelam Rathore, complainant No.1.

All residents of village Swarka Post Office Chauntra,

Tehsil Joginder Nagar, District Mandi, H.P.

…ComplainantS

V/S

IFFCO Tokio General Insurance Company Ltd through its General Manager -34 Nehru Palace New Delhi-110019.

…..Opposite party

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainants against the opposite party. The case of the complainants is that Sh. Sanjeev Kumar Rathore who was the husband complainant No.1 and father of the complainants No.2 and 3 raised loan from Punjab National Bank, branch Chauntra , District Mandi and purchased a comprehensive policy No.54014033, master policy No.54008336 from the opposite party vide which Sanjeev Kumar Rathore was covered under personal insurance against death in the sum of Rs.8,00,000/- .

The complainants averred that Sh. Sanjiv Kumar, life assured had died on 24-4-2007 in accidental death. The complainants averred that thereafter they moved an application to the opposite party for settlement of the claim under personal accident. The complainants did not hear anything from the opposite party and served it with legal notice dated 4-8-2007 which was duly replied by the opposite party on 16-8-2007 and certain documents were required and after receipt of the said letter , they have submitted entire documents through registered post. Thereafter the investigator of the opposite party Sh. Rakesh Kumar , Engineer vide letter dated 29-10-2007 demanded certain documents and same were submitted on 10-11-2007 alongwith letter.

The complainant alleged that after completion of all the formalities , ,the opposite party was again served with legal notice and then vide letter dated 26-3-2008 the claim of the complainants had been rejected on the ground that the claim of the complainants did not fall within the scope of policy. The complainants further averred that the Pradhan Gram Panchayat , had issued certificates annexure C-2 to C-4 which shows that the life assured while getting down from the stairs of his house fell down due to slip of feet and sustained internal injuries and he was immediately removed to the hospital where he died on the way to the hospital and when he reached PHC Chauntra, he was declared dead and no post mortem was got conducted and no first information report was lodged because the deceased sustained injuries due to fall from the stairs.

The complainants further averred that they were not aware about the insurance policy of Sh .Sanjeev Kumar . Had they been in the knowledge of insurance policy , First Information report would have been lodged and post mortem must have been conducted . The complainants further averred that the opposite party is taking undue advantage of absence of documents and just and legal claim of the complainants had been rejected which is clear cut deficiency in service on the part of the opposite party and they had suffered financial loss, and mental tension and had claimed a sum of Rs.50,000/- on this score. With these averments , the complainants had sought a direction to the opposite party to pay to them Rs.8,00,000/- alongwith interest at the rate of 15% PA from the date of death of life assured till payment and also to pay Rs.50,000/- as compensation apart from costs of litigation

2 The opposite party resisted the complaint by filing reply in which preliminary objections have been raised that

the complaint is no complaint and the dispute referred is no dispute under the Act, that the complaint of the complainants had been put at rest vide letter dated 26-3-2008 as the death of the life assured is not found due to accident but life assured died due to heart attack, that the complainants have not approached this Forum with clean hands and have suppressed the material facts because the complainant No.1 in her statement to L.I.C had stated that the cause of death of her husband was heart attack , that there is a breach qua the mandatory condition of insurance policy as first information report , claim form, death certificate and intimation form are mandatory but neither first information report was lodged nor post mortem report was got conducted and that the complaint is not maintainable on account of its complexity qua the facts as volume of evidence requires proving or disproving the alleged facts and the same cannot be redressed in summary proceeding. On merits, the opposite party had admitted that the application was received for settlement of the claim , but the same was not found payable in view of the terms and conditions of the insurance policy. It has further been contended that certain documents were asked to be supplied for the proper and effective processing of the claim but the same were not supplied which goes to shows that the post mortem was not got conducted deliberately which could have confirmed the cause of death due to heart failure . It has been denied that the death is due to falling from the stairs .

The opposite party had not denied the receipt of the legal notice . The opposite party further averred that since the claim was not payable as per the terms and conditions of the insurance policy as such the repudiation of the claim was with proper application of mind . It has further been pleaded that the on the basis of the documentary evidence adduced by the complainant death could be treated due to heart failure and indemnity of which is not covered under the terms and conditions of the policy. It has further been pleaded that the complainants were duly intimated about the rejection of the claim , therefore there is no deficiency in service on its part. The opposite party had prayed for dismissal of the complaint

3 We have heard the ld. counsel for the parties and have carefully gone through the entire case file. It is not in dispute that Sh. Sanjeev Kumar Rathore was insured with the opposite party in the sum of Rs.8,00,000/-. It is also not in dispute that aforesaid Sh. Sanjeev Kumar Rathore was covered under the policy with respect to the accidental death . The perusal of the policy Annexure O-III shows that the insured is covered only with respect to the accidental bodily injury which solely and directly causes insured person to Death or permanent disablement within 12 months of the injury .According to the complainants the insured died in an accidental death as while getting down from stairs of his house , he fell down due to slip of feet and sustained internal injuries and he was immediately removed to the hospital but he died on the way to the hospital .

Therefore, in this background , it was incumbent upon the complainant to have established by leading cogent evidence on record that the death of the insured Sanjeev Kumar Rathore was caused due to accident . However, as per the own case of the complainants neither first information was lodged nor post mortem of the dead body of the life insured was got conducted. The complainants had placed on record Photostat copies of certificates issued by Pradhan Gram Panchayat Passal Annexure C-2, certificate of Up Pradhan ,Gram Panchayat Passal Annexure C-3 and Pradhan Gram Panchayat Sagnehad Annexure C-4 . However, neither the original certificates have been placed on record nor affidavits of the persons who have issued these certificates have been adduced in evidence. Except these documents , no other evidence has been adduced by the complainants which could have established that the death of the insured was due to the accident.

On the other hand , the opposite party had adduced in evidence report of the investigator Sh.Sanjeev Aurora Annexure O -IV who in his report dated 24-3-2008 has concluded that the death of late Sh.Sanjeev Rathore on 24-4-2007 was due to heart attack and heart failure and was not due to any kind of accident as alleged by the claimant Neelam Rathore wife of the insured As per report annexure O-X of Er Rakesh Kumar dated 10-12-2008 also the death of the insured was not due to falling from the stairs but due to a cardiac arrest. Not only this, the opposite party had adduced in evidence letter dated 4-5-2007 Annexure O-VII written by the complainant No.1 to the LIC of India wherein she had mentioned that the cause of the death of her husband on 24-4-2007 was due to heart failure . The complainants have no where denied the contents of the aforesaid letter written to the LIC India Mandi branch .

No acceptable material has been placed on record by the complainant showing that Sh. Sanjeev Kumar Rathore had died due to accidental injuries sustained by him resulting solely and directly from accident caused by outward, violent and visible means leading to his death . Rather in her letter dated 4-5-2007 addressed to LIC of India , it has been admitted by the complainant No.1 that death of her husband was due to heart failure . Since as per the terms and conditions of the policy, the assured sum in the sum of Rs.8,00,000/- was payable to the complainants in the event of death of the insured in an accident only, the repudiation of the claim cannot be said to be illegal as the complainant had failed to prove that the death of the insured was due to accident . Hence , we are of the considered opinion that the complainants have failed to prove and establish any deficiency in service on the part of the opposite party.

5 In view of above discussion, we hold that the complainant is not entitled to any relief and the complaint deserves dismissal and is hereby dismissed with no order as to costs

COMPLAINANT :- M/s. Padma Industries, Represented by its

Proprietor Smt. Paneer Pratiba W/o Neminath,

No.5-33, Plot No.A-20, Yamuna Nagar,

Kusnoor road, Main road,

GULBARGA.

// Versus //


OPPONENTS:- 1. IFFCO-TOKIO GENERAL INSURANCE CO. LTD.,

Regd. Office: 34, Nehru Place,

NEW DELHI-110 019.

2. IFFCO-TOKIO GENERAL INSURANCE CO. LTD.,

Zonal Office South, KSCMF Building,

3rd Floor, No.8, Cunningham Road,

BANGALORE-52.

3. The Branch Manager,

Karnataka State Finance Corp. Branch,

Opp: KBN Hospital Main Road,

GULBARGA.
: : O R D E R : :

1. This complaint is filed by one M/s. Padma Industries represented by its Proprietor Smt. Paneer Pratiba W/o Neminath, R/o Gulbarga against the O.Ps. 1 to 3 u/s.12 of Consumer Protection Act 1986, praying that, O.P.No.1 and 2 be directed to pay Rs.13,20,000/- with interest @ 12% from the date of accident till realization. Further O.P.No.3 be directed to pay Rs.2,00,000/- with interest @ 12% from the date of accident till realization. O.Ps. may be directed to pay Rs.2,000/- towards costs of this proceedings in the interest of justice.

2. The brief facts of the case of the complainant are as under;

Complainant who is represented by its Proprietor in the present proceedings. Complainant is running small scale industry which is a manufacturer of spices, turmeric powder, chili powder, Garam Masala and host of other type of masalas. Complainant’s products are given Agmark certification by Govt. of India. Complainant is conducting business since 1988 and run women entrepreneur hailing from a minority community. She had taken a standard Fire and Special peril policy (material damage) from O.P.No.2 covering the risk of plant and machinery kept in the premises brg.Plot No.20, Sy.No.61/A, Badepur Jamuna Nagar, Gulbarga. O.P.No.2 had taken the risk to cover the plant and machinery. O.P. having accepted the value of the plant and machinery and O.P. company having received the premium, has issued a policy brg.No.110007908 covering the risk for the period 22.10.2002 to 21.10.2003. Complainant was enjoying a credit facility with O.P.No.3 to the tune of Rs.8,50,000/- during the subsistence of the policy. The policy was issued based on the investment certificate issued by O.P.No.3. Unfortunately, fire engulfed the unit on 23.7.2003 causing total damage to plant and machinery wherein the entire machinery was damaged beyond repairs. Accordingly, she applied for claim brg.No.11000517 to O.P.No.2. Unfortunately O.P.No.2 has settled the claim only to the extent of Rs.1,29,500/-.

Complainant represents that as against the claim of Rs.8,40,000/-, O.P. has paid only Rs.1,29,500/-. She submits that, Surveyor of O.P.No.1 and 2 has not assessed the loss based on the actual damage caused to the machinery which was completely destroyed. In this regard, she also submitted several documentary proof issued by various companies indicating that the machineries were not in a reparable condition. The Surveyor of the O.P.No.1 and 2 has not taken this into consideration this aspect. O.P.No.1 and 2 without applying mind has proceeded to pay a merger sum under the policy. O.P.No.1 and 2 were legally bound to pay the sum assured for the loss sustained by complainant due to fire. O.P.No.1 and 2 have acted arbitrarily, hence there is a deficiency of service on their part. O.P.No.3 was under an obligation to have questioned the assessment made by the O.P. insurance company; and its surveyor in assessing the loss and arriving at a figure which was totally against the facts and loss suffered by the complainant.

Therefore, complainant claims the amount of loss assured under the policy is Rs.8,40,000/-, mental agony and sufferings is Rs.1,00,000/-, loss during the period August-2003 to February-2004 is Rs.2,80,000/- and compensation for deficiency in service Rs.1,00,000/- from O.P.No.1 and 2. She also claims compensation from O.P.No.3 towards mental agony and sufferings for sum of Rs.1,00,000/- and also Rs.1,00,000/- towards compensation for deficiency in service with interest @ 12%. She got issued legal notice but O.Ps. have not settled the claim. The above mentioned facts constitutes cause of action and immediate cause of action arose on 3.3.2004. This Forum has got jurisdiction to entertain the complaint. Under these circumstances, it is submitted that, complaint may be allowed and compensation may be awarded as prayed in the complaint.

3. After registering the case, notices were issued to O.Ps. After serving the notices, O.P.No.1 and 2 appeared through their counsel and filed Written Statement contending that, complainant is running industry since 1998 and the said products of the industry bear Agmark Certificate showing the quality of the products. It is submitted that, in order to avoid payment of court fee for recovering the claim amount regarding her business, she has proceeded before this Hon’ble Forum while in fact in case of business undertakings of the scale of the complainant, she required to pay the requisite court fees and she can file civil suit in the competent court for her claim amount. It is submitted that, this Hon’ble Forum has no jurisdiction to try the case and decide the matter. It is submitted that, complainant is not a consumer under the Consumer Protection Act and the dispute is not a consumer dispute. In view of the involvement of commercial activity covered by the policy, by the O.Ps., the goods in trade of the complainant being gutted in fire in respect of which the claim is made which is also strictly a business/commercial transactions. It is submitted that, complainant had taken standard Fire and special peril policy (Material damage) from the O.P.No.2 in respect of her industry.

The policy issued by the O.P.No.2 in respect of plant covering the risk of plant and machineries including accessories. It is denied that the contention of complainant that the value of machinery are accepted at Rs.8,40,000/-. It is only the value declared by any proposer at the time of proposing property for insurance. It is submitted by O.Ps. that, policy issued to the complainant industry is subject to the “agreed Bank clause” since industry is hypothecated to KSFC Gulbarga as it is enjoying the loan facility from O.P.No.3. It is denied that, policy was issued based on the investment certificate issued by O.P.No.3. It is admitted that, on 23.7.2003, complainant’s industry was damaged in the fire accident but it is denied that, there is a total damage to the plant and machineries beyond repairs. The extent of damages suffered by the plant and machineries is to be certified by the independent loss assessor/valuer on his due inspection of the damaged machineries. It is denied that, O.Ps. arbitrarily settled the claim to the extent of Rs.1,29,500/- as it is a practice of insurer that O.Ps. have assigned the job of assessing the loss suffered by the insured plant and machineries. The Surveyor is an independent authority licensed by the I.R.D.A., to assess the loss.

It is denied that, the assessment was not done in the presence of complainant. Any assessment of loss is done in the presence of complainant (insured) or his/her representatives. Moreover, complainant was not prevented by any authority of this O.Ps. to have approached them to aid her grievances over the assessment of loss. It is denied that, the job of Survey and assessment of loss was not fair and proper and the Surveyor had not applied his mind in assessment of loss. It is not necessary that, the supplier of such machinery should inspect the complainant’s unit. It is again denied that, O.P.No.1 and 2 are legally bound to pay the sum assured. The question of sum assured being payable arise only in the event of total loss of claim and it is not applicable for partial loss of claim. It is denied that, either the Surveyor or the O.Ps. have at any point of time obtained any signed or blank documents or letter heads. O.P. is under no obligation to question the assessment of independent Surveyor.

It is only their prerogative to seek any clarification from the Surveyor while settling the loss. It is further stated that, the substance of the “agreed Bank clause” that the discharge by the Financer, in this case KSFC Gulbarga is full and final as far as the obligation of this O.Ps. in settling the claim are concerned and very much in good faith and in letter and spirit of the agreed bank clause, that this O.P. sent the Cheque for Rs.1,29,500/- to the KSFC Gulbarga. In the light of this, there is no deficiency of service on the part of this O.P. Claim of complainant against the O.P.No.1 and 2 are baseless. It is the opinion of the O.Ps. that, complainant is hatching a conspiracy to secure a windfall gain to receive her unit afresh or altogether to abandon it. No cause of action arose to file the complaint. This Forum has no jurisdiction to entertain the complaint. Under these circumstances, it is submitted that, complaint may be dismissed with costs.

4. O.P.No.3 also appeared before this Forum and filed Written Statement contending that, it is true that, complainant has taken policy for standard fire & special perils policy for plant and machinery including accessories vide policy No.110007908. It is true that, the assets is insured for value of Rs.8,40,000/- i.e Micro Pulvariser, Automatic Powder, packaging spice Roaster. It is also true that, complainant has availed term loan of Rs.8,10,000/- from O.P.No.3 to acquire the plant and machinery. It is true that, O.P.No.3 has provided plant and machinery list to O.P.No.2 while insuring the plant and machinery.

It is true that, unit is engulfed on 23.7.2003. It is also true that, O.P.No.2 has settled the claim for Rs.1,29,450/- towards full and final settlement of complainant’s unit’s claim. O.P.No.1 and 2 are having their own surveyors to assess the damages. O.P.No.3 has quickly acted after receipt of representation of the complainant and requested the O.P.No.2 to settle the insurance claim of the unit. It is already submitted that, O.P.No.3 has received the claim amount settled by the O.P.No.1 and 2. It is specifically denied that, there is a deficiency of service on the part of O.P.No.3, as a matter of fact, O.P.No.3 is a creditor, the complainant is a debtor and not the relationship of consumer and seller. Under these circumstances, it is submitted that, complaint may be dismissed with costs.

5. To prove the claim of complainant, her husband who is General Power of Attorney holder was filed affidavit by way of evidence, he examined as PW-1. Un support of the claim of complainant, one witness by name Srikanth S/o Satyanarayana Murthy, Service Engineer (D.EEE), AURO Machine Pvt. Ltd., was examined as PW-2, got marked documents Exh.P-1 to Exh.P-15. Complainant side evidence closed. O.Ps. also filed affidavit by way of evidence and examined as RW-1 and got marked documents Exh.R-1 to Exh.R-3. In support of their claim, one witness by name Sanjay Seth, Claims Head, was examined as RW-2 and closed their side.

6. After considering the materials filed in this case, this Forum dismissed the complaint. Aggrieved by the said Order, complainant’s husband preferred an appeal before the Hon’ble State Commission, Bangalore vide appeal No.1693/2006 wherein Hon’ble State Commission has remanded the case with direction to this Forum to dispose of the matter afresh after giving notice to both parties. Hon’ble State Commission has observed in its order which is given below;

“All these appeals are by the complainants challenging the order of the DF dismissing their complaints.

The facts in this case are as follows;

The complainant is the owner of the Small Scale Industry which manufacturers Spices; turmeric Powder, Chilly Powder and host of other type of Masalas. The said industry was insured with the OPs. Under the terms of the policy the fire accident is also covered. It is not in dispute that there was a fire accident on 23.7.2003. The Insurance Company after coming to know of the accident appointed a surveyor to assess the loss. The surveyor in turn it appears assessed the loss and submitted the report. On the basis of the surveyors report according to the complainant the OP has offered certain amount as compensation. But this was not accepted by the complainant. Therefore the complainant filed the complaint before the DF claiming compensation. The DF dismissed all the three complaints on the ground that the industry is engaged in commercial activity and therefore, the complainant is not a consumer as defined under the Act. This Order is under challenge by the complainants in these appeals.

The industry established by the complainant is to eak out his livelihood. If that is so, the complainant is to be considered as a Consumer as per Section 2 (d) (ii) of the Act. Further the Insurance Company having agreed to pay the compensation in the event of any loss suffered due to the fire accident out to have paid the compensation for loss if any. In the instant case since the complaints are not disposed of on merits in our view all these appeals are to be allowed. In the result we pass the following;


ORDER
Appeals are allowed.

Impugned orders are set aside. Matters are remitted to the DF to dispose of all the complaints filed by the complainant on merits after due notice to the parties.



7. After first remand of this case, this Forum have perused the materials placed in this case, accordingly complaint was dismissed. Aggrieved by the said Order, again complainant preferred an appeal before the State Commission Bangalore vide Appeal No.2524/2007, wherein their Lordships of Hon’ble State Commission Bangalore have held as under;

“This Appeal is by the Complainant challenging the Order dated 30.11.2007 passed by the District Consumer Forum, Gulbarga, in Complaint No.26/2004, by which the District Forum has dismissed its Complaint, holding that the Complainant is not a “Consumer” so as to raise a Dispute under the Consumer Protection Act”.


It is not in dispute that the Complainant got insured its Plant and Machinery with Opposite Parties No.1 and 2 (hereinafter called the, “Insurance Company”) for the period from 22.10.2002 to 21.10.2003. There was a fire accident in the premises on 23.3.2003. According to the complainant due to the fire accident the machinery which it had erected in the Factory were completely damaged and the said machinery had to be replaced as the same could not be repaired.

In support of this contention, the Complainant has examined one witness by name Sri Srikanth as PW-2 before the District Forum. The said witness in his cross-examination has stated that the machinery which were erected were completely damaged and the same were to be replaced as they were damaged beyond repair. According to the complainant, the cost of the said machinery is Rs.8,40,000/- and he had borrowed loan from OP-3. The maximum amount payable as per the terms of the Policy is Rs.8,40,000/-. But the District Forum instead of quantifying the compensation on the basis of the evidence has proceeded to dismiss the Complaint holding that the Complaint is not maintainable on the ground that the Complainant Industry is engaged in “Commercial Activity”.


The National Commission in similar cases has taken the view that when once the policy has been issued, the Insurance Company has to settle the claim as per the terms of the Policy, irrespective of the fact whether the Insured is engaged in any commercial activity or not. Therefore, in the instant case, there was no reason for the District Forum to dismiss the Complaint as not maintainable. If the Insurance Company has not settled the claim as per the terms of the Policy, necessarily it amounts to “Deficiency in Service”. In the instant case, since there is no proper consideration of the evidence regarding the quantification of compensation, we are of the view that the matter requires re-consideration.

No doubt the Insurance Company has issued a Voucher to the effect that the Insurance Company is ready to settle the claim for Rs.1,29,500/- on the basis of the Report of the Surveyor. It is not the case of Insurance Company that the Complainant has signed the said voucher agreeing for settlement of the claim for Rs.1,29,500/-. No doubt, as per the Report of the Surveyor, the Insurance Company has paid Rs.1,29,000/- to OP-3 which financed for the purchase of the machine. Since there is no consideration of the evidence by the District Forum regarding quantification of compensation, in our view, the matter requires re-consideration by the District Forum, only in so far as the quantification of compensation is concerned.

Hence, we pass the following Order;

(1) The Appeal is allowed. The impugned order is set aside.

(2) The matter is remitted back to the District Forum to decide the Complaint on merits after quantifying the compensation, after affording opportunity to all the parties to adduce evidence.

8. After second time remand of this case, accordingly again this Forum has issued afresh notices to both parties. Both complainant and O.Ps. appeared before this Forum and filed affidavit to the extent of their claim and also filed written arguments.

9. Heard the arguments from both sides.

10. The points that arises for our consideration are;
(1) Whether complaint is maintainable?
(2) Whether complainant is entitled for compensation as per direction of the Hon’ble State Commission Bangalore?
(3) What Order?


11. Our answer to the above points are as under:-
(1) Yes.
(2) Yes.
(3) As per final order for the following;

: : R E A S O N S : :

12. Point No:1 and 2 :

We perused the affidavit of complainant and also affidavit of O.Ps. after remand and also documents which are got marked in this case. While remanding this case, their Lordships of the Hon’ble State Commission Bangalore has observed in its Order that “Since there is no consideration of the evidence by the District Forum regarding quantification of compensation”. In this case complainant has deposed in his evidence that, the plant and machinery are totally valued at Rs.8,40,000/-. The policy was issued based on the investment certificate issued by the O.P.No.3 in favour of O.P.No.1 and 2. We have perused the document which already marked as Exh.P-12 which is investment certificate which was issued by O.P.No.3 which reveals that, the plant and machinery are valued at Rs.8,40,000/-.

Further on going through the document i.e Exh.P-15 which are photographs which reveals that, plant and machinery were completely damaged in the fire. O.Ps. have admitted in their affidavit that, incident took place. In support of claim of complainant, she also examined one witness by name Srikanth as PW-2, in his cross examination, he deposed that, plant and machinery which were erected were completely damaged and the same were to be replaced as they were damaged beyond repair. In this case, O.Ps. have paid already compensation of Rs.1,29,500/-. If we award Rs.7,00,000/- (-) Rs.1,29,500/- = Rs.5,70,500/- it will meets ends of justice. On going through the evidence of complainant, affidavit and documents in our considered opinion, complaint is maintainable and complainant is entitled for claim, accordingly we answered these two points in affirmative.

13. Point No.2 :

In view of the discussions made on point No.1, we also answered this point in affirmative. Hence we proceed to pass the following;

: : O R D E R : :

Complaint is partly allowed. Complainant is entitled to recover a sum of Rs.5,70,500/- with interest @ 6% per annum from the date of this Order till the date of realization from O.Ps. jointly and severally. Further complainant is entitled to recover a sum of Rs.5,000/- towards mental agony and cost of this proceedings from O.Ps.

1. Mulkala Thirupathi Reddy, S/o.Raji Reddy,

Age:47 yrs, Occ:Govt.Teacher.



2. Mulkala Anasuya, W/o.Thirupathi Reddy,

Age:42 yrs, Occ:House wife, both are

R/o.Shankarapuram village, R/M.Kotapalli,

Dist.Adilabad.

V/s

IFFCO – TOKIO General Insurance Co.Ltd.,

Rep.by its Manager, Branch Office:IInd floor,

Uma Chambers, Banjara Hills, Panjagutta,

Hyderabad. …Opp.Party.

-:ORDER:-

1. The complainants are the parents i.e., Father and mother of the deceased by name Mulkala Vishal, Aged:23 yrs, Occ:Engineer in L & T Company (B.Tech) was died in the Motor vehicle accident on intervening night of 12/13-07-2008, near Telecom nagar, near Urdu University, Hyderabd while he was proceeding on his Motor cycle bearing no.AP28-CA-5286 met with an M.V.accident.

The above two wheeler vehicle was insured with the Opp.Party company and the deceased was obtained Personal accident Policy for Rs.1,00,000/-. The Police Rayadurgam (Cyberabad) has registered a case in Cr.No.181/08 for the Officen Under sec.304(A) IPC. In the above said accident, the deceased’s motorcycle TVS APACHE completely damaged. The above said vehicle valued for Rs.58,150/- + and the Personal Accident Policy of Rs.1,00,000/- and premium has been paid. At the time of accident police was in coverage.

The above said vehicle is in custody of police. Immediately after the accident information of death of the deceased has been given to Office of the Opp.Party by the complainants and their relatives for claim settlement, but the Opp.Party has not given any response. Lastly on 10.09.2008 the complainants issued a legal notice through their Advocate by registered post to the Opp.Party, the said notice has been served on the party on 17.09.208 (The acknowledgement card is enclosed herewith) inspite of that neither the Opp.Party paid compensation (Police claim amount) nor given reply to the notice till today. The acts of Opp.Party amounts to deficiency of service.

Hence the complainant prayed this forum to direct the Opp.Party

a). To pay an amount of Rs.1,00,000/- (Rupees One Lakh Only) towards policy amount to complainants.

b). To pay an amount of Rs.58,150/- towards costs, damaged motorcycle of the deceased.

c). To pay an amount of Rs.25,000/- towards mental agony, pain and suffering to the complainants.

d). To pass any other order or orders in favour of complainant as the Hon’ble forum deems fit and proper under the circumstances of the case, in the interest of justice.

2. The Opp.Party filed counter. The contents of counter is as follows:

In fact the Opp.Party never received any request or claim from the complainants or from their relatives. It is also denied that the complainants has got issued a legal notice through their advocate and it was served on Opp.Party on 17.09.2008 and it is also false that inspite of legal notice the Opp.Party did not pay any compensation and it is also false that, the acts of the Opp.Party amounts to deficiency in service, negligently and carelessly.

It is denied that the complainants got insured the alleged vehicle i.e., TVS APACHE bearing no.AP28CA-5286 through agent at Adilabad. In fact the Opp.Party is not having any agents in Adilabad District to collect premium for the motor vehicle policies. It appears in ordered to claim in the District Forum Adilabad the complainant has falsely contended that they have taken policy through an agent at Adilabad. The Opp.Party prayed to dismiss the complaint.

3. Both parties filed Proof Affidavits.

4. On behalf of complainant Ex.A1 to A6 are marked. No documents are filed on behalf of Opp.Party.

5. Now the point for consideration is whether there are grounds to allow the petition?

6. Heard both sides. The fact the insurance coverage is in vogue on the date of accident and in the said accident the Motorcycle was completely damaged is beyond dispute. The plea of the Opp.Party is that they appointed Surveyor to calculate the cost of damage and pay the same after receipt of the report of the Surveyor. There is no dispute that complainant is entitled to policy amount of Rs.1,00,000/- as the accident occurred during the coverage period of policy.

Thus defense is only a formal defense. 90% of the case of the complaint is admitted. As there is a delay in settling the claim, it may amount to deficiency of service. Anyhow after hearing both Advocates, we feel it reasonable to settle the problem as under: We direct the Opp.Party to pay Rs.1,00,000/- being the policy amount. The amount covered under damages be paid after receiving Surveyor Report. The Ld. Advocate for the Opp.Party is took time for more than one month on the ground that surveyor report is yet to be received. We also direct the Opp.Party to expedite the process of surveyor and do the needful in this regard.



7. In the result the complaint is Partly allowed. The Opp.Party is directed to pay Rs.1,00,000/- (Rupees One Lakh Only) to the complainant within one month from the date of this order. The Opp.Party is also directed to complete the survey at the earliest possible time and pay the amount after calculating depreciation etc., failing which the complainant is at liberty to proceed against Opp.Party U/S.25/27 of Consumer Protection Act 1986. No costs.

COMPLAINANT



BY-SRI. K.SHYAMSUNDAR,

ADVOCATE, BELLARY.





//VS//


IFFCO-TOKIO GENERAL INSURANCE

COMPANY LTD., LATERAL SPREAD

CENTRE, # 102, FIRST FLOOR,

RAGHAVA KRISHNA COMPLEX,

K. C. ROAD, BELLARY – 583 101.







//JUDGMENT//









This is the complaint filed by Complainant S.Kumar Nayka against IFFICO TOKIO GENERAL INSURANCE CO. LTD., under Sec-12 of C.P.Act for to direct the Respondent to pay an amount of Rs.3,00,000/- which is the amount spent for repair of his insured vehicle, to direct the Respondent to pay an amount of Rs.250/- per day towards parking charges from 10/04/2009 till delivery of the vehicle with interest @ 18% p.a. on Rs.3,00,000/- from the date of complaint till realization of full amount with cost and other reliefs as deems fit to the circumstances of this case.



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



He is the owner of Ape Pickup Van D-660 bearing Regn.No.KA-35/9354 which was comprehensively insured with Respondent Insurance Company commencing from 26/02/2007 to midnight of 25/02/2008. On 12/02/2008 the said vehicle met with an accident on NH-25 due to collusion of another vehicle. In the said accident one S.Nagaraj Naik and driver Hanumantha suffered injuries. The said vehicle badly damaged. Thereafter, it was intimated to the Police. The damaged vehicle was repaired after inspection by the Surveyor of the Respondent Insurance Company. Thereafter, he filed claim petition along with necessary records, but the Respondent repudiated his claim illegally on untenable grounds and therefore he filed this complaint for the reliefs as prayed in it.



3. The Respondent Insurance Company appeared in this case through its Advocate filed detail Written Version by admitting the ownership of Complainant to the said vehicle, coverage of comprehensive Insurance Policy on the said date, time and place of accident and the appointment of Surveyor. It repudiated the claim of Complainant on two grounds as noted in Para No.4 and 6. According to it, the said vehicle is commercial vehicle having only one seating capacity i.e. driver of the vehicle alone is permitted to travel in the said vehicle, but on that day more than one person travellled in it. Secondly, the driver Hanumantha was not having valid and effective Driving Licence to drive said vehicle as such, the Complainant violated the terms and conditions of the Policy and thereby it rightly repudiated the claim of Complainant and prayed for to dismiss the complaint among other grounds.







4. In view of the pleadings of parties, now the points that arise for our consideration and determination are that;





1.


Whether the Complainant proves that his Ape Pickup Van D 660 bearing its Regn.No.KA-35/9354(three wheeler) comprehensively insured with Respondent Insurance Company met with an accident on NH-25 near Lokappa hola cross leading towards Mariyammanahalli while Insurance Policy was in force and in the said accident his vehicle badly damaged, thereafter, he informed the fact of accident to the Police, Surveyor was appointed by the Respondent, he got repaired the said vehicle and filed claim petition with necessary records, but the Respondent Insurance Company repudiated his claim illegally on untenable grounds and thereby the Respondent Insurance Company found guilty under deficiency in its service towards him?





2.


Whether the Complainant is entitled for reliefs as prayed in this complaint?



3.


To what relief the Complainant is entitled for?

//POINTS//



5. Our findings on the above points are as under.











Point No.1:


In Affirmative.





Point No.2:


As discussed in detail in the body of this Judgment.





Point No.3:


In view of the findings on Point Nos.1 and 2, we pass the final order for the following;













//REASONS//
Point Nos.1 & 2: -



6. In order to prove the facts involved in these two Points, the affidavit evidence of Complainant was filed, he was noted as P.W.1. Documents Ex.P.1 to Ex.P.9 are marked. On the other hand, the affidavit evidence of Head CSC of the Respondent Insurance Company was filed, he was noted as R.W.1 and affidavit evidence of Surveyor of Respondent Insurance Company was filed, he was noted as R.W.2. Documents Ex.R.1 to Ex.R.11 are marked.






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

1.


It is undisputed fact that Complainant is the owner and R.C. holder of vehicle bearing Regn No.KA-35/9354.





2.


It is further undisputed fact that the vehicle No.KA-35/9354 is comprehensively insured with Respondent Insurance Company with its validity period from 26/02/2007 to 25/02/2008.





3.


It is further undisputed fact that the said vehicle met with an accident on 12/02/2008 while Insurance Policy of it was in force and the said vehicle damaged in the accident.







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 and Ex.R.3.





8. In the light of above said undisputed facts in between the parties, now we have to see disputed points between the parties.



9. Ex.R.1 is repudiation letter written by Respondent Insurance Company to the Complainant dated: 10/10/2008 shows the reason for rejecting the claim of Complainant. According to it, the repudiation was done on the ground that as on the date, time and place of accident the number of persons were travelled in the insured vehicle are in excess of seating capacity as mentioned in the Registration Certificate.



10. Para No.6 of Written Version of Respondent Insurance Company reveals another ground for repudiation is as driver of the said vehicle was not authorized to drive the transport vehicle i.e. vehicle in question and thereby Respondent Insurance Company has repudiated the claim of Complainant.



11. The Respondent Insurance Company not mentioned this ground as another ground in its repudiation letter Ex.R.1 in addition to the only one ground mentioned in it.



12. Keeping in view of these facts, now let us discuss as to whether the Respondent Insurance Company has justified in rejecting the claim of Complainant on first ground as noted above.



13. As per the submission made by learned advocate for Respondent Insurance Company that, R.C. of the said vehicle shows the seating capacity is as one. That means to say that, driver of the said vehicle is only authorized person to travel in the said vehicle. According to him, documents Ex.R.5 the copy of FIR, Ex.R.6 copy of complaint and other Police records clearly shows that one S.Nagaraj Naik the brother of Complainant was travelling in the said vehicle along with its Driver Hanumantha on the said date, time and place as both of them have injured in the said accident as such, the Complainant allowed to travel more persons in the said vehicle in excess to its seating capacity as one person. Therefore, the Complainant violated the terms and conditions of the Insurance Policy and thereby the Respondent Insurance Company rightly repudiated the claim of Complainant.



14. On the other hand, the learned advocate for Complainant submitted that, Ex.R.6 complaint was not directly lodged by the driver Hanumantha or Complainant himself before the Police. The matter was communicated by the driver to some other persons in the village and thereafter one Satya Naik filed complaint before the Police, apart from it, it is contented before us that, driver was only person travelling in the said vehicle at that time and injured persons in the said accident are not claiming any compensation under the said Policy from the Respondent Insurance Company, the Complainant is claiming compensation under the Policy only in respect of damages to his vehicle. Accordingly, the Respondent Insurance Company cannot reject the claim of Complainant on the ground that some other person was travelling along with driver on the said date, time and place of accident.



15. To decide the legal position of the Complainant as to whether he violated the terms and conditions of the Policy and Respondent is justified in repudiating the claim, we have referred some of the following rulings as guidelines.



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)
16. In the above said rulings, the Hon’ble Supreme Court as well as the Hon’ble State Commission of Chandigarh observed that, the claim of Complainant under the comprehensive 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.



17. The said principle is made 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 contention of learned advocate for Respondent Insurance Company for to reject the claim of Complainant. Accordingly, his submissions in this regard are rejected.



18. The second ground for repudiation the claim of Complainant is as driver of the said vehicle was not authorized to drive the transport vehicle in question.



19. To substantiate this ground the learned advocate for Respondent Insurance Company referred some of the documents filed in this regard.



20. The learned advocate for Complainant contended before us that, Ex.R.4 the copy of Driving Licence shows that he is having valid and effective licence to drive the motor vehicle other than transport vehicle. The present vehicle in question is not a transport vehicle. Accordingly, rejecting the claim of Complainant on this ground is illegal.





21. In pursuance of submissions made on both sides, we have referred material records to decide as to whether this vehicle is transport vehicle or vehicle other than the transport vehicle.





22. Ex.P.1 copy of Registration Certificate of said vehicle shows that it is a pickup van (three wheeler). Ex.P.3 Insurance Policy shows that it covered Commercial Vehicle Insurance Package Policy. No where in the R.C. it is mentioned as the said vehicle is as transport vehicle. Ex.P.1 further shows that its gross weight is 975 Kg and its unladen weight is 415 Kg.



23. In pursuance of these available materials before us, we have referred recent ruling of Hon’ble National Commission reported in 2009 (3) CPR 13 (NC) Oriental Insurance Company Ltd. Vs. Ashok Verghese.



24. In the said ruling, their lordships of Hon’ble National Commission held as “a person holding driving licence to ply transport vehicle unless there is light motor vehicle cannot ply without specific endorsement to that effect”.



25. In the instant case, if the vehicle of Complainant comes under category of transport vehicle then the driver of the said vehicle should possess a valid and effective licence to drive the transport vehicle otherwise a specific endorsement to that effect on the licence of light motor vehicle of the driver of said vehicle.



26. To decide this material difference between the driving licence of transport vehicle and light motor vehicle, we have referred Ex.R.4 copy of D.L. of driver of the said vehicle. As per Ex.R.4, driver of the said vehicle is having licence to drive a motor vehicle other than the transport vehicle. That means to say that Ex.R.4 is not authorizing the said driver to drive the transport vehicle. As per discussion made by their lordships of Hon’ble National Commission in the Judgment at Para No.9, Sec-2(21) of the Motor Vehicles Act of 1988 defines as light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller does not exceeds 7,500 kilograms. Sec-2(23) of M.V.Act deals with medium goods vehicle. Sec-3(16) of M.V. Act deals with heavy goods vehicle. In Para No. 11 of its Judgment, it is noted as in order to qualify as light motor transport vehicle, the gross weight should not exceed 7,500 Kg. In case of motor car its unladen weight which is relevant.



27. In the light of the observations made in the ruling referred above and observations made by the lordships of Hon’ble Supreme Court in decided cases reported in AIR 2008 SC 614 New India Assurance Co. Vs. Prabhu Lal, 2004 (3) SCC 297 National Insurance Company Ltd. Vs. Swaran Singh & Others and (2007) 3 SCC 700 National Insurance Co. Ltd. Vs. Laxmi Narain Dutt and facts noted in R.C. Ex.P.1 and Ex.R.4 and the principles of above said ruling of Hon’ble Supreme Court, the vehicle in question is not a transport vehicle. It is light motor vehicle repudiation of claim of Complainant on this ground by the Respondent Insurance Company is illegal.



28. In view of the facts and circumstances stated above, the above said two grounds for repudiating the claim of Complainant is not supported by any provisions of law or with terms and conditions of Insurance Policy of the said vehicle or by any authorities and thereby there is deficiency in service by the Respondent Insurance Company in repudiating the legal claim of Complainant. Accordingly, we answered Point No.1 in affirmative.

29. The Complainant claimed for Rs.3,00,000/- as he spent that amount towards repair of his damaged vehicle. In support of his claim, he filed Ex.P.6 estimation issued by local automobile firm. On the other hand, the Respondent Insurance Company appointed a Surveyor who visited the place of accident, inspected the damaged vehicle and assessed loss. According to his reports Ex.R.2 and Ex.R.3, he assessed the loss to the extent of Rs.43,560.70. In view of the fact, there are two available documents before us to assess the damage and loss to the Complainant. Admittedly, Ex.P.6 is private document issued by local automobile firm. Ex.R.2 and Ex.R.3 are the reports of Surveyor who is an independent qualified officer appointed under the Insurance Act.



30. 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 reports of Surveyor Ex.R.2 and Ex.R.3 is proper and safe as such, the Complainant is entitled to get an amount of Rs.43,560.70 which is rounded to Rs.43,600/- from the Respondent Insurance Company.



31. The second prayer of him is for to award Rs.250/- per day towards parking charges from 10/04/2009 till delivery of the vehicle to him. We have not convinced by this prayer of Complainant as how he entitled to get relief by this Forum under Sec-14 of C.P. Act. Accordingly, we rejected this prayer. However, we have noticed the deficiency in service on the part of this Respondent Insurance Company for repudiation of claim of Complainant by fanciful grounds as such, we are of the view that, granting a lump sum amount of Rs.3,000/ to the Complainant under the head of deficiency in service is proper and reasonable amount required to be passed in the background of facts and circumstances of this case. Accordingly, we granted it.



32. The Complainant is entitled to get a lump sum amount of Rs.2,000/- towards cost of this litigation.



33. The Complainant prayed for to award interest @ 18% p.a. from the date of complaint till realization of full amount. We not find any special circumstances to award such big rate of interest. However, we have taken note of entire case of Complainant and we are of the view that, granting interest @ 9 % p.a. on the above said total sum from the date of this complaint till realization of full amount is proper and reasonable rate of interest. Accordingly, it is granted. Hence, we answered Point No.2 accordingly.



Point No.3: -



34. In view of findings on Point Nos.1 & 2, we pass the following;



//ORDER//









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







The Complainant is entitled to recover total sum of Rs.48,600/- including cost (rupees forty eight thousand six hundred only) from the Respondent Insurance Company.





The Complainant is entitled to recover interest @ 9% p.a. on Rs.48,600/- from the date of this complaint i.e. 09/04/2009 till realization of full amount from the Respondent Insurance Company.





The Respondent Insurance Company is 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.

C. M. R. Transport Contractors Company Private Limited, (Fleet Owners & Bitumen Transport

Contractors), represented by its Managing Director, Chaluvadi Mallikharjuna Rao, Door No.54-18-34, Near : ITI Gate, Bharat Gas Lane, Sivapuram Colony, Vijayawada – 8.

..… Complainant.



And



1. Adishwar Auto Diagnostics Private Limited, Mahavir Motors, represented by its Manager, Sri P. Yoganand,

D. No.6-3-1099/1/7, Somajiguda, Hyderabad - 520 082.



2. Adishwar Auto Diagnostics Private Limited, Mahavir Motors, represented by its Manager, Near Tata Motors, Gudavalli – 521 104. Krishna District.



3. Daimler Chrylser India Private Limited (Mercedes-Benz), represented by its Managing Director, Sector : 15-A, Chikhali, Pimpri, Pune – 411 018.



4. IFFCO-Tokio General Insurance Co. Limited, represented by its Divisional Manager, 4th Floor, D. No.40- 9/1/12, Lohia Towers, Opp : Nirmala Convent, Vijayawada – 520 008.

….. Opposite Parties.







ORDER







1. The averments of the complaint in nut shell are as follows :



That the complainant is the owner of Mercedes Benz Car bearing No.AP-09BK-T/R 351 and the same was insured with the 4th opposite party. While the policy was in force the vehicle met with an accident on 5.10.2008 and the same was intimated to the 4th opposite party who in turn sent a surveyor (A. V. Ramana) who inspected the vehicle at the spot and thereafter the vehicle was shifted to opposite parties 1 and 2 by paying towing charges and the opposite parties agreed to repair the vehicle within ten days and the complainant paid an advance amount of Rs.1,00,000/- and the opposite parties 1 and 2 estimated the repair charges for Rs.7,09,238/- and thereafter again assessed the damages finally, thereafter the complainant intimated the same to the 4th opposite party with all required data.


The opposite parties 1 and 2 failed to fulfill their word, so the complainant got issued a legal notice. The opposite parties 1 and 2 replied the but the 4th opposite party did not reply and comply but the opposite parties 1 and 2 repaired the vehicle and the complainant paid the entire charges that is a total sum of Rs.7,40,789/- and took delivery of the vehicle. Even thereafter the 4th opposite party failed to compensate the loss. Hence the complaint.



2. The opposite party No.2 filed version which was adopted by the opposite parry No.1 they interalia denied the allegations of the complainant but admitted about the accident and bringing of the vehicle to their workshop and payment of Rs.1,00,000/- as advance and further stated that because of the delay on the part of the 4th opposite party with regard to approval for repair of the vehicle the delay was caused.


Further contended that they have intimated the same and that the 4th opposite party agreed, and thereafter and after getting the spare parts the repairs were effected, thereafter the opposite parties addressed letter to the complainant who paid the entire consideration of Rs.7,40,789/- and took delivery of the vehicle (which includes advance amount of Rs.1,00,000/-). So the complainant is estopped to claim any damages from these opposite parties and that these opposite parties are unnecessary parties and that the delay was because of the 4th opposite party only and that there is no cause of action whatsoever yet the complainant filed this complaint against the opposite parties for wrongful gain and prayed to dismiss the complaint with costs.



3. The 3rd opposite party failed to contest the matter.



4. The 4th opposite party filed version interalia denying the allegations of the complainant in toto and that the complainant failed to submit the required data to this opposite party as such this opposite party failed to settle the claim. There is no cause of action to file this complaint since the fault lies with the complainant only and there is no negligence on the part of the opposite parties but it is on the part of the complainant only. The delay is also because of the complainant only and that the complainant filed this complaint with false and untenable allegations without any basis and for wrongful gain and prayed to dismiss the complaint with exemplary costs as there is no deficiency in service on the part of this opposite party.



5. On behalf of the complainant Sri Ch. Mallikarjuna Rao filed an affidavit and got marked Exhibits A1 to A15. On behalf of the opposite parties 1 and 2 Sri P.Yoganand filed an affidavit and got marked Exhibits B1 to B12. No affidavit or documents filed on behalf of the opposite party No.3. Sri B. Gunasekhar filed an affidavit on behalf of the opposite party No.4 and no documents are marked.



6. Heard the counsel for all.



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

(i) Whether there was deficiency in service on the pat of the opposite parties ? If so the complainant is entitled

for the claim ?

(ii) To what relief the complainant is entitled ?



8. Point No.1 : As could be seen from the material on hand, the complainant is the owner of Mercedes Benz Car bearing No.AP-09BK-T/R 351 vide Exhibit B1 and A2. Further there is no dispute that the said vehicle was insured by the 4th opposite party vide Exhibit A1 and B2. Further there is no dispute that the said vehicle met with an accident and the same was intimated to the 4th opposite party who in turn sent a licensed surveyor and that the material further discloses that the said surveyor came to the spot and assessed the damages with photos etc and also received required data from the complainant. Thereafter the vehicle was shifted to the garage of opposite parties 1 and 2 vide Exhibit A3 and that the complainant also paid Rs.1,00,000/- as advance vide Exhibit B4 and Exhibit A14.


Further opposite parties1 and 2 estimated the loss of the vehicle twice i. e., Exhibit A4, A5 and A12 which correspondence to Exhibits B3, B5 and further the version of the opposite parties 1 and 2 clearly discloses that they have addressed letter to opposite party No.4 and after obtaining permission only they started repairing and that they have received the entire consideration from the com0plainant itself vide Exhibits B4 and B12 and that the vehicle was delivered to the complainant after repair, of course the accident was occurred on 5.10.2008 and the vehicle was brought to the opposite parties 1 and 2 on 7.10.2008 and that the vehicle was delivered after repairs on 9.4.2009, of course it took nearly six months but the delay was explained by the opposite parties 1 and 2 that to because of the opposite party No.4 only and they have addressed letter to the opposite parties and that after obtaining permission from opposite party No.4 only they have effected the repairs to the damaged vehicle.


So no need to fasten any deficiency or negligence to the opposite parties 1 and 2 and further no need to say any deficiency in service and that there no any mechanical defect or otherwise to the vehicle, so no need to attribute anything to opposite party No.3. Further the 4th opposite party did not mention about the quantum of damages but only contended that the complainant failed to submit the data but yet failed to substantiate the same.


On the other hand the evidence (oral and documentary) on behalf of the complainant and the opposite parties 1 and 2 clinchingly show that they have intimated and submitted the required data to the 4th opposite party, for reimbursement of insurance claim but it failed to comply. The version of the complainant is that the surveyor came and assessed the damages and that he as submitted the required data, of course the same was denied by the 4th opposite party but failed to substantiate the same. On the other hand the documentary evidence discloses that one Bhaskar Kumar, Surveyor and Loss Assessor also addressed a letter to the 2nd opposite party under Exhibit B6 and B7and that the 2nd opposite party also addressed preliminary card supplementary assessments (Exhibits B9 and B10).


They have also addressed letters to the complainant with regard to receipt of amounts vide Exhibit B11, B12 corresponding to Exhibit A14 but surprisingly the letters from 4th opposite party dated 23.7.2009 under Exhibit A15 and A13 discloses that they have acted belatedly and in fact Exhibit A13 is of no date and wherein they have received certain documents and asked for some more and as per Exhibit A15 they asked again claim form duly filled and signed by insured original DL & RC for verification, original stamped cash receipt which cannot be submitted by the complainant why because without assessing the damages and settling the quantum of damages submitting of stamped cash receipt is not proper and that to asking of the documents by the 4th opposite party is a belated one that to receiving once as such it falls within the purview of deficiency in service and that when there is cogent evidence with regard to the damages and repair and payment of consideration by the complainant, as already noted supra.


Even otherwise, if the 4th opposite party has any doubt it ought to have sent its surveyor to opposite parties 1 and 2 but it did not do so. As such the plea of the complainant is acceptable and accepted since there is no any rebuttal or contra evidence whatsoever. So the complainant is entitled for damagers and accordingly this point is answered.



9. Pont No. 2 : In the result the complaint is allowed and the 4th opposite party is hereby directed to pay an amount of Rs.7,40,789/- (Rupees Seven Lakhs Forty Thousand Seven Hundred and Eighty Nine) only to the complainant, if opposite party No.4 fails to comply the order within one month the damages carries interest @ 9% per annum, and do pay Rs.2,000/- (Rupees Two Thousand) only towards costs. Complaint against opposite parties 1 to 3 is dismissed but no costs. The other claims if any claimed by the complainant are hereby rejected. Time for compliance one month.

C. M. R. Transport Contractors Company Private Limited, (Fleet Owners & Bitumen Transport

Contractors), represented by its Managing Director, Chaluvadi Mallikharjuna Rao, Door No.54-18-34, Near : ITI Gate, Bharat Gas Lane, Sivapuram Colony, Vijayawada – 8.

..… Complainant.



And



1. Adishwar Auto Diagnostics Private Limited, Mahavir Motors, represented by its Manager, Sri P. Yoganand,

D. No.6-3-1099/1/7, Somajiguda, Hyderabad - 520 082.



2. Adishwar Auto Diagnostics Private Limited, Mahavir Motors, represented by its Manager, Near Tata Motors, Gudavalli – 521 104. Krishna District.



3. Daimler Chrylser India Private Limited (Mercedes-Benz), represented by its Managing Director, Sector : 15-A, Chikhali, Pimpri, Pune – 411 018.



4. IFFCO-Tokio General Insurance Co. Limited, represented by its Divisional Manager, 4th Floor, D. No.40- 9/1/12, Lohia Towers, Opp : Nirmala Convent, Vijayawada – 520 008.

….. Opposite Parties.







ORDER




1. The averments of the complaint in nut shell are as follows :



That the complainant is the owner of Mercedes Benz Car bearing No.AP-09BK-T/R 351 and the same was insured with the 4th opposite party. While the policy was in force the vehicle met with an accident on 5.10.2008 and the same was intimated to the 4th opposite party who in turn sent a surveyor (A. V. Ramana) who inspected the vehicle at the spot and thereafter the vehicle was shifted to opposite parties 1 and 2 by paying towing charges and the opposite parties agreed to repair the vehicle within ten days and the complainant paid an advance amount of Rs.1,00,000/- and the opposite parties 1 and 2 estimated the repair charges for Rs.7,09,238/- and thereafter again assessed the damages finally, thereafter the complainant intimated the same to the 4th opposite party with all required data.


The opposite parties 1 and 2 failed to fulfill their word, so the complainant got issued a legal notice. The opposite parties 1 and 2 replied the but the 4th opposite party did not reply and comply but the opposite parties 1 and 2 repaired the vehicle and the complainant paid the entire charges that is a total sum of Rs.7,40,789/- and took delivery of the vehicle. Even thereafter the 4th opposite party failed to compensate the loss. Hence the complaint.



2. The opposite party No.2 filed version which was adopted by the opposite parry No.1 they interalia denied the allegations of the complainant but admitted about the accident and bringing of the vehicle to their workshop and payment of Rs.1,00,000/- as advance and further stated that because of the delay on the part of the 4th opposite party with regard to approval for repair of the vehicle the delay was caused. Further contended that they have intimated the same and that the 4th opposite party agreed, and thereafter and after getting the spare parts the repairs were effected, thereafter the opposite parties addressed letter to the complainant who paid the entire consideration of Rs.7,40,789/- and took delivery of the vehicle (which includes advance amount of Rs.1,00,000/-).


So the complainant is estopped to claim any damages from these opposite parties and that these opposite parties are unnecessary parties and that the delay was because of the 4th opposite party only and that there is no cause of action whatsoever yet the complainant filed this complaint against the opposite parties for wrongful gain and prayed to dismiss the complaint with costs.



3. The 3rd opposite party failed to contest the matter.



4. The 4th opposite party filed version interalia denying the allegations of the complainant in toto and that the complainant failed to submit the required data to this opposite party as such this opposite party failed to settle the claim. There is no cause of action to file this complaint since the fault lies with the complainant only and there is no negligence on the part of the opposite parties but it is on the part of the complainant only. The delay is also because of the complainant only and that the complainant filed this complaint with false and untenable allegations without any basis and for wrongful gain and prayed to dismiss the complaint with exemplary costs as there is no deficiency in service on the part of this opposite party.



5. On behalf of the complainant Sri Ch. Mallikarjuna Rao filed an affidavit and got marked Exhibits A1 to A15. On behalf of the opposite parties 1 and 2 Sri P.Yoganand filed an affidavit and got marked Exhibits B1 to B12. No affidavit or documents filed on behalf of the opposite party No.3. Sri B. Gunasekhar filed an affidavit on behalf of the opposite party No.4 and no documents are marked.



6. Heard the counsel for all.



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

(i) Whether there was deficiency in service on the pat of the opposite parties ? If so the complainant is entitled

for the claim ?

(ii) To what relief the complainant is entitled ?



8. Point No.1 : As could be seen from the material on hand, the complainant is the owner of Mercedes Benz Car bearing No.AP-09BK-T/R 351 vide Exhibit B1 and A2. Further there is no dispute that the said vehicle was insured by the 4th opposite party vide Exhibit A1 and B2. Further there is no dispute that the said vehicle met with an accident and the same was intimated to the 4th opposite party who in turn sent a licensed surveyor and that the material further discloses that the said surveyor came to the spot and assessed the damages with photos etc and also received required data from the complainant. Thereafter the vehicle was shifted to the garage of opposite parties 1 and 2 vide Exhibit A3 and that the complainant also paid Rs.1,00,000/- as advance vide Exhibit B4 and Exhibit A14.


Further opposite parties1 and 2 estimated the loss of the vehicle twice i. e., Exhibit A4, A5 and A12 which correspondence to Exhibits B3, B5 and further the version of the opposite parties 1 and 2 clearly discloses that they have addressed letter to opposite party No.4 and after obtaining permission only they started repairing and that they have received the entire consideration from the com0plainant itself vide Exhibits B4 and B12 and that the vehicle was delivered to the complainant after repair, of course the accident was occurred on 5.10.2008 and the vehicle was brought to the opposite parties 1 and 2 on 7.10.2008 and that the vehicle was delivered after repairs on 9.4.2009, of course it took nearly six months but the delay was explained by the opposite parties 1 and 2 that to because of the opposite party No.4 only and they have addressed letter to the opposite parties and that after obtaining permission from opposite party No.4 only they have effected the repairs to the damaged vehicle.


So no need to fasten any deficiency or negligence to the opposite parties 1 and 2 and further no need to say any deficiency in service and that there no any mechanical defect or otherwise to the vehicle, so no need to attribute anything to opposite party No.3. Further the 4th opposite party did not mention about the quantum of damages but only contended that the complainant failed to submit the data but yet failed to substantiate the same. On the other hand the evidence (oral and documentary) on behalf of the complainant and the opposite parties 1 and 2 clinchingly show that they have intimated and submitted the required data to the 4th opposite party, for reimbursement of insurance claim but it failed to comply.


The version of the complainant is that the surveyor came and assessed the damages and that he as submitted the required data, of course the same was denied by the 4th opposite party but failed to substantiate the same. On the other hand the documentary evidence discloses that one Bhaskar Kumar, Surveyor and Loss Assessor also addressed a letter to the 2nd opposite party under Exhibit B6 and B7and that the 2nd opposite party also addressed preliminary card supplementary assessments (Exhibits B9 and B10). They have also addressed letters to the complainant with regard to receipt of amounts vide Exhibit B11, B12 corresponding to Exhibit A14 but surprisingly the letters from 4th opposite party dated 23.7.2009.


Under Exhibit A15 and A13 discloses that they have acted belatedly and in fact Exhibit A13 is of no date and wherein they have received certain documents and asked for some more and as per Exhibit A15 they asked again claim form duly filled and signed by insured original DL & RC for verification, original stamped cash receipt which cannot be submitted by the complainant why because without assessing the damages and settling the quantum of damages submitting of stamped cash receipt is not proper and that to asking of the documents by the 4th opposite party is a belated one that to receiving once as such it falls within the purview of deficiency in service and that when there is cogent evidence with regard to the damages and repair and payment of consideration by the complainant, as already noted supra.


Even otherwise, if the 4th opposite party has any doubt it ought to have sent its surveyor to opposite parties 1 and 2 but it did not do so. As such the plea of the complainant is acceptable and accepted since there is no any rebuttal or contra evidence whatsoever. So the complainant is entitled for damagers and accordingly this point is answered.

Appeal No. 185/2009.

Date of Decision 6.1.2010.
In the matter of:

1. IFFCO TOKIO General Insurance Company Limited,

1st, 2nd floor, Sohan Singh Complex, Shashtri Nagar,

near Railway Crossing, Ludhiana Punjab;

2. IFFCO TOKIO General Insurance Company Ltd., C-1,

Distt. Centre Saket, New Delhi, through its Managing

Director through Sh. Rajeev Chaudhary (AVP) its authorized signatory.



… … Appellants.

Versus

1. Sh. Gulshan Sharma son of Sh. Shyam Lal R/o VPO Damtal,

Tehsil Indora, Distt. Kangra;

… … Respondent/complainant

2. The Richard Strauss Insurance Booking Private Ltd, SCO No.

11, 2nd floor, PUDA Complex Ladowali Road, Jullandhar (Punjab)

through its Branch Manager.

… … proforma 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?

For the Appellants.: Mr. Aman Sood, Advocate.

For the Respondent No.1. Mr. Naresh Kaul, Advocate.

For Respondent No.2. Ex-parte.
O R D E R

Justice Arun Kumar Goel (Retd.), President (Oral).

This appeal is directed against the order of District Forum Kangra, at Dharamshala, dated 7.4.2009. By means of impugned order, Consumer Complaint No. 259/2008 filed by respondent No.1, was partly allowed ex-parte thereby holding the appellants jointly and severally liable to pay the sum insured to respondent No. 1 within 30 days of the receipt of the copy of the order under challenge in this appeal, failing which said amount was to carry interest @ 9% per annum from the date of complaint, (i.e. 12.9.2008) till its realization. Appellants have further been liable to pay compensation in the sum of Rs. 5,000/- for causing mental pain, agony and inconvenience to respondent No.1 alongwith Rs. 2000/- as cost. Hence this appeal.

2. Mr. Aman Sood, learned counsel for the appellants submitted that District Forum below committed grave error by ordering ex-parte proceedings against his client on 4.11.2008. Reason being that there was no proof of service having been effected upon the appellants for this date. This could only be established, if Acknowledgement Due of the registered notice was there on the complaint file. Further ground urged by Mr. Sood was, that vide Annexure C-8 his client had repudiated the claim of respondent No.1 as he violated terms and conditions of the policy of insurance, subject to which the vehicle in question was insured by the appellant. Therefore even if it be assumed for the sake of argument, without admitting that the appellants were rightly set ex-parte, still there being breach of policy condition, complaint was liable to be dismissed. Again without conceding and or in any manner admitting the claim of the respondent No.1, in the alternative Mr. Sood on behalf of the appellants submitted that even if his clients are held to be liable for payment of any compensation, no interest, compensation or cost of litigation should have been allowed. Therefore on this ground he prayed for modification of the impugned order.

3. We shall take up all the grounds one by one. So far proceedings ex-parte on 4.11.2008 against the appellants is concerned, we find no infirmity in the order of District Forum below. For ready reference order passed by District Forum below on this date is extracted hereinbelow:-

“Case called three times. Neither OPs present in person nor through its counsel.

Notices, through registered AD. Post, which were issued to OPs on 26.9.2008, have not been received back unserved neither the AD cards received. Since a period of more than one month has already elapsed. We declare that OPs have been served as per the provisions of law/CPC. Hence OPs are proceeded against ex-parte.

But put up for ex-parte evidence on 5.1.2009.”

4. This order according to us is in consonance with the object of expeditious disposal of consumer complaints, in addition to the statutory provision contained in the Consumer Protection Act, 1986. Under Section 28A which came on the statute book on and with effect from 15.3.2003. Per this section all notices required under the said Act were to be served in the manner as mentioned in sub section (2) thereof. Service of notices is to be made by delivering or transmitting a copy thereof by registered post addressed to OPs, (appellants in this appeal) against whom the complaint was made alongwith respondent No.2 . Under this sub section it could be made by the complainant by speed post or by such courier service as are approved by the District Forum, the State Commission or the National Commission as the case may be. Service of notice could be made by any other means for transmission of documents including FAX message under sub section (3) of section 28A of the Act (supra). When an acknowledgement due or any receipt purported to have been signed by the opposite party or his agent or by the complainant is received by the District Forum, State Commission or the National Commission as the case may be, or the postal article containing in the notice is received back by any of them with an endorsement purported to have been made by a postal employee or by any person authorized by the courier service to the effect that the OPs or its agent or complainant had refused to take its delivery containing the notice or had refused to accept the notice by any other means specified in sub section (2) when it was tendered or transmitted to him, District Forum, State Commission or the National Commission as the case may be has to declare that the notice having been duly served on the OPs or the complainant. As per proviso to sub section (3) where the notice was properly addressed/prepaid and duly sent by registered post acknowledgement due, a declaration referred to in sub section (3) has to be made notwithstanding the fact that the acknowledgement had been lost or mislaid or for any other reason has not been received by the District Forum, State Commission or the National Commission as the case may be, within 30 days from the date of issue.

5. At this juncture, we specifically called upon Mr. Sood, learned counsel for the appellants, as to whether the address given in the complaint of his clients was correct, he submitted that it was so and it is on this address that after receipt of copy of the order passed by the District Forum below, that the present appeal has been filed. Presumption of correctness is attached to the order passed by the judicial/quasi judicial authorities, like the Courts and Foras under the Consumer Protection Act, 1986. Therefore submission of Mr. Sood, learned counsel for the appellants that order dated 4.11.2008 is liable to be set aside and or his clients were set aside ex-parte wrongly for want of receipt of acknowledgement due is being noted to be rejected, being without merit. Ordered accordingly.

6. Next ground urged for allowing this appeal was, that since policy conditions subject to which his clients had undertaken the insurance, were violated by the respondent, therefore order of the District Forum below is liable to be set aside. What was the material before the District Forum below, except for referring to Annexure C-8 nothing could be pointed out on behalf of the appellants. We are of the considered view in this behalf, that the impugned order on this ground cannot be set aside. Question of evidence would only come in support of the pleadings, in the absence whereof this plea cannot be accepted. Reason being that the appellants chose to remain ex-parte despite having been duly served in accordance with law as referred to hereinabove. Therefore plea is also rejected.

7. Now coming to the alternative plea of the appellants that interest, cost and compensation should not have allowed at all. We are of the view that interest is in consonance with the recent trend of the decisions of National Commission, as well as of this Commission though in many cases, the Hon’ble Supreme Court as well as National commission has allowed interest even upto 12% and more. However respondent No.1 being not aggrieved from the order of the District Forum below in that behalf, we uphold the interest as allowed by the District Forum below. Likewise we feel that compensation is also inadequate, but the same is upheld because respondent No.1 is satisfied with it, and same is the position regarding cost.

8. Catching the last straw, Mr. Sood learned counsel for the appellants submitted that his clients are ready and willing to compensate respondent No.1 by offering adequate and sufficient cost for setting aside the impugned order and thereby permitting a chance to allow or to contest the complaint on merits. We made an attempt to get consent from the learned counsel or the respondent No.1. Per him he has instructions to contest the case on merits, as such this submission is also rejected. Service having been held to valid under law, we cannot set aside the order under challenge.

9. No other point was urged.

In view of the aforesaid discussion, we find no merit in this appeal which is accordingly dismissed, leaving the parties to bear their own costs

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

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