Jawala Prashad son of Sh. Mani Ram Prop. New Light and Tent House near Jawahar Park, Sunder Nagar, District Mandi, H.P.


V/S

1. Bajaj Allianz General Insurance Company Ltd

( Claims department_ SCF-11 Phase 382 Mohali-160055

2. Branch Manager, Bajaj Allianz General Insurance Company Ltd Mandi, H.P.

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 complainant against the opposite parties. The case of the complainant is that he

is registered owner of scooter No HP-31-6492 which was duly insured with the opposite parties vide insurance policy dated 14-12-2006 cover note No.100002814806 in the sum of Rs.17,760/- with effect from 8-12-2006 to 7-12-2007. The complainant averred that he had parked his above scooter as usual on 28-12-2006 outside his shop located at Jawahar Park Bhojpur, Sundernagar from where some one had stolen it and first information report No.204/2007 was lodged at Police Station Sundernagar on 9-5-2007. The opposite party No.2 was also informed about the theft of the scooter. The complainant further stated that all the necessary documents pertaining to the above scooter as required by the opposite party No.1 for processing the insurance claim of the complainant have been supplied and theft claim No. OC-08-1201-1802-00000497 was prepared.

Thereafter certain queries were raised by the opposite parties vide letter dated 25-9-2007 which was duly responded as per letter annexed . According to the complainant, the police had not been able to trace out the culprit who had stolen the insured scooter of the complainant and the opposite party wrongfully, arbitrarily and whimsically and illegally repudiated the theft insurance claim vide letter dated 5-10-2007. The complainant alleged that the reason for rejection of the claim by the opposite party is wholly baseless and hypothetical as he had lodged the report of theft with the police on next day i.e. on 30-12-2006 but the police intentionally kept the matter regarding registration of the first information report pending for months together and ultimately on the application under section 156(3) Cr.P.C made to the court, First Information was registered by the police as per the orders of Additional Chief Judicial Magistrate Sunder Nagar .

The complainant further averred that late registration of the first information report regarding theft of the insured scooter did not minimize the liability of the opposite parties in any manner to absolve their liability to indemnify the complainant to the extent of the insured value of the scooter. The complainant further alleged that the act of the opposite parties is clear deficiency in service as well as unfair trade practice . The complainant further alleged that the cause of action had arisen to the complainant on 5-10-2007 when he received the repudiation letter .With these averments , the complainant had sought a direction to the opposite parties to pay the insured um of the scooter i.e. Rs.17,760/- and also to pay Rs.10,000/- as compensation for harassment apart from costs of litigation.

2. The opposite parties resisted the complaint by filing reply wherein preliminary objections have been raised that the complaint is not maintainable; that the complainant has not approached this Forum with clean hands as the complainant deliberately informed the opposite parties about the theft of motor cycle after a lapse of more than four months depriving the opposite parties to establish the facts; that the complainant has suppressed the material facts ; that the complainant is not entitled to any relief due to his own acts, deeds and conduct, that there is no deficiency in service on their part, that the matter involved in the present complaint cannot be adjudicated in summary manner , that the complaint is not maintainable as the complainant had breached the terms and conditions of the policy ; that the first information report was lodged after 132 days and also the police has not submitted the final report and that the complainant has not kept the vehicle in question in safe custody but parked it by the side of National Highway -21 which is negligence on the part of the complainant. On merits the opposite parties have not denied the insurance of the vehicle in question..

The opposite parties pleaded that it had appointed its Investigator Sh.D.P.Sharma for investigating the case and it was revealed that incident occurred on the night of 28th December 2006 when the vehicle was negligently parked at NH -21 and it was left unattended and that the first information report No.204/2007 was lodged on 9-5-2007 and there had been delay of four months in intimating the opposite party about the theft of the vehicle . The opposite party had denied that the complainant had informed it about theft in time and further pleaded that final report has not been submitted to the opposite parties and in the absence of same , claim could not be settled . The opposite parties further pleaded that the repudiation of the claim is as per the norms of the company. The opposite parties had prayed for dismissal of the complaint.

3. The complainant had filed rejoinder reiterating the contents of the complainant and controverting those as made in the reply.

4. We have heard the ld. counsel for the parties and have carefully gone through the record. From the perusal of the complaint , reply and accompanying documents it is quite clear that the repudiation of the claim by the opposite party is on sole ground that the there had been delay in lodging the first information report of theft of scooter and also in informing the opposite party about theft . At the very outset , it may be stated that the opposite parties in their reply had not denied that the complainant was not the owner of the vehicle in question and the vehicle was not insured with it .

The complainant has also tendered in evidence copy of certificate cum policy which shows that his scooter was insured for Rs.17,760/- with the opposite parties and the insurance was valid with effect from 8-12-2006 to 7-12-2007. Copy of registration certificate has also been placed on record which reflects that he was the owner of the scooter in question. Not only this the complainant had placed on record copy of letter sent by him to the SHO Police Station Sunder Nagar for lodging report in which it has been written that scooter No. HP-31-6492 which was parked outside his shop at Jawahar Nagar, Sunder Nagar had been stolen . The perusal of the aforesaid application further shows that the same had been received on 30-12-2006 and had been marked to LHC. The opposite parties had not filed any evidence contrary to this document.

The complainant had also placed reliance upon first information report No.204/2007 dated 9-5-2007 lodged by him at Police Station Sunder Nagar. In this first information report , it has very specifically been mentioned that on application under section 156(3) Cr.P.C. of the complainant moved before the Additional Chief Judicial Magistrate, Sunder nagar, first information report had been lodged regarding theft of scooter of the complainant which took place on 28-12-2006 . No doubt as per the first information report theft of scooter took place on 28-12-2006 and first information report in this regard was lodged on 9-5-2007 but the delay in lodging the first information cannot be said to be due to the negligence of the complainant because the complainant has proved and establish by placing on record a letter which was sent by him to the S HO Police Station Sunder nagar regarding theft of scooter and the same was received in Police Sttion on 30-12-2006 .

This Forum feels that on the aforesaid application of the complainant , no action was taken by the police and he was compelled to file application before the Ld. Additional Chief Judicial Magistrate for lodging the First information report. In these circumstances , we are satisfied that the delay in lodging the first information report regarding the theft of the scooter cannot be attributed to the complainant . So far as the contention of the opposite parties that they had been informed after a lapse of more than four months , it has no legs to stand because as per the pleadings of the complainant the information about theft of the insured scooter was timely given by him to the opposite party No.2 and all the necessary documents as required by the opposite party No.1 for preparing and processing the claim had also been supplied.

The opposite parties in their reply had pleaded that when they received information of incident of theft , they appointed their investigator Mr.D.P.Sharma for investigating the case and it was revealed that the incident occurred on 28-12-2006 whereas the first information has been lodged on 9-5-2007, but the report of the alleged Investigator has not seen the light of day . The ld. counsel for the opposite parties had failed to explain as to why this report had been withheld from this forum Had this report been adduced in evidence, this Forum would have been able to ascertain as to on what date the investigator had visited the spot and when he was appointed as investigator by the opposite party. It is nowhere the case of the opposite parties that the complainant had not informed them about the accident .

So far the plea of the opposite parties that final report has not been submitted to the opposite parties by the complainant , this plea is also without any substance because the complainant had placed on record copy of order of the Ld. Judicial Magistrate Ist Class Court no.2 Sunder Nagar , dated 8-7-2008 whereby the untraced report prepared by the police has been accepted by the court and the first information report in question had been ordered to be kept as untraced . Once the first information report had been ordered to be kept as untraced , the opposite parties should have immediately indemnified the complainant by making payment of the insurance amount which has not been done. A valid claim cannot be permitted to be defeated on hyper technical ground which is a clear cut case of deficiency in service . In our considered view , the complainant had proved that the repudiation of the clam was on flimsy ground and the opposite parties are liable to indemnify the complainant for the theft of the scooter..

5 In the light of above discussion, the complaint is allowed and the opposite parties are directed to pay Rs.17,760/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this they are also directed to pay to the complainant Rs.5000/- on account of compensation for harassment suffered by him and also to pay a sum of Rs.

1500/- as cost of litigation.

Vijay Kumar aged about 37 years s/o Prem Shanker Dubey r/o VPO Nainowal Jattan District Hoshiarpur.

vs.

1.

Bajaj Allianz General Insurance Co. Ltd. Court Road, Hoshiarpur.
2.

Bajaj Allianz General Insurance Co. Ltd, Rampa Tower 5th floor, Circuit House, civil Lines, Jalandhar through its Manager.
3.

Bajaj Allianz General Insurance Co. Ltd. GE Plaza, Airport Road, Yerawade, Pune.
4.

Pb & Sind Bank, Bullowal District Hoshiarpur through its Branch Manager.
1.

The complainant namely Vijay Kumar has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant got insured tractor no.PB07-N-4509 with OP No.1 to 3. That the said tractor was hypothecated with OP No.4 , who was responsible to get the tractor insured and the insurance charges were required to be deducted from the account of the complainant.
2.

It is the case of the complainant that said tractor met with an accident on 12.3.2007 at Rehankala Chalser,P.S.Agamtpur, District Agra (UP). That FIR no. 186/07 under sections 279/337/338/304-A was registered. That intimation dated 16.3.2007 was also sent to the OPs regarding the said accident alongwith copy of RC, DL of Vinod Kumar and copy of FIR .
3.

It is the allegation of the complainant that the OPs have failed to settle the claim. It is further the case of the complainant that the tractor in question alongwith trolley were stolen on 5.1.2008 at Balesar P.S.Agamtpur District Agra and FIR was got recorded on 15.1.2008 The complainant has not received any information with regard to settlement of the claim, hence this complaint.
4.

OPs Nos.1,2,3 filed the reply. Preliminary objections vis a vis maintainability, jurisdiction, estoppel and non joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is admitted that the complainant is the owner of tractor bearing registration no. PB07-N-4501. It is also admitted that the said tractor was insured with the replying OPs. It is denied that the complainant gave intimation with regard to the said accident and theft of the tractor to the replying OPs. It is replied that the trolley was not insured. The tractor was not fully insured and only third party coverage was there.
5.

OP No.4 filed a separate reply. Preliminary objections vis a vis maintainability, estoppel, the complainant is not a consumer and non joinder and mis-joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant applied for loan for purchase of Swaraj Mazda . The loan to the tune of Rs.2,70,000/- was sanctioned and the tractor was hypothecated with the replying OP. One Vipan Savroop son of Harish Ashram stood as guarantor for the repayment of the loan. The complainant signed various loan documents and also signed the agreement of hypothecation. The complainant made a default in making the payment. It is further replied that the complainant had taken away the tractor to District Agra (UP) without prior permission and consent of the replying OP in violation of the terms and conditions of the loan agreement. The replying OP was not responsible for the insurance of the tractor , as such, the dispute is only between the complainant and OP No. 1,2,3. It is further replied that in such like cases, MACT is the only competent authority to decide the claim. The replying OP had written letters to the police authorities , Agamtpur , District Agra but it has not been confirmed as to whether the recovery of the tractor has been effected ? The complainant never obtained the insurance policy for theft/loss. The insurance policy obtained by the complainant covers the owner , driver and third party under Farmers Package Policy.
6.

In order to prove the case, the complainant tendered in evidence affidavit Ex.C-1, copy of insurance policy dated 21.6.2007 Mark C-2, letter dated 3.7.2007 Mark C-3, newspaper clipping Mark C-4, letter dated 21.1.2008 Mark C-5, FIR Mark C-6, copy of RC Mark C-7, application dated 16.3.2007 Mark C-8, policy dated 12.6.2006 Mark C-9, policy dated 24.6.2004 Mark C-10, format of proposal form Mark C-11, bill dated 9.6.2004 Mark C-12, letter dated 9.6.2004 Mark C-13, untraced report Mark C-14 and statement of account Mark C-15 and closed the evidence.
7.

In rebuttal, the opposite party No.1,2,3 tendered in evidence affidavit of Sunil Koul Ex. OP-1 and policy Ex. OP-2 and closed the evidence. OP No.4 tendered in evidence affidavit of Suvinder Singh Ex. OP-3, letter dated 9.6.2004 Ex. OP-4, receipt dated 9.6.2004 Ex. OP-5, letters dated 9.6.2004 Ex.OP-6 to OP-9. Form dated 9.6.2004 Ex.OP-10, form no. 412 Ex. OP-11. Demand cash credit Ex.OP-12, form no. 256 Ex.OP-13, letter dated 24.11.2008 Ex. OP-14, dated 18.8.2008 Ex. OP-15, dated 23.7.2008 Ex. OP-16, dated 19.3.2008 Ex. OP-17, insurance policy Ex. OP-18, confirmation letter Ex. OP-19, proposal form Ex OP-20, utilization certificate Ex.OP-21, certificate of execution of documents Ex. OP_22, hypothecation Ex. OP-23, affidavit from complainant Ex.OP-24, forms Ex. OP-25Ex.OP-26 and statement of account Ex.OP-27 and closed the evidence.
8.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
9.

Ld. Counsel for the complainant very fairly and squarely conceded that OP No.1,2,3 have been impleaded as proper parties and no relief has been claimed against them. To the similar effect, this Court passed the order on 16.2.2009 that OP Nos.1,2,3 , if not necessary parties but necessarily they are the proper parties to the lis, thus, their names cannot be deleted from the array of the OPs. More so, the tractor in question was not comprehensively insured with OP No.1,2,3. The said tractor was insured to cover the risk of third party for agricultural purpose only and no premium was paid to cover the risk of theft. It is also proved on record that no intimation with regard to alleged theft was ever given to OP No.1,2,3.
10.

Now the only point for consideration is as to whether the tractor bearing no.PB07-N-4509 was hypothecated with OP No.4, who is responsible to get the tractor insured and the insurance charges were required to be deducted from the account of the complainant ? The answer to this is in the negative.
11.

The documents produced on record prove that the tractor of the complainant was insured to cover the risk of third party and no premium was ever paid to cover the risk of theft and own damage. It is also proved that the trolley in question was not insured .
12.

It is also an admitted fact that the tractor in question was hypothecated with OP No.4- bank. The OP No.4 has produced on record hypothecation deed , Ex.OP-12. The clause/para no.7 of the said hypothecation deed is crucial to decide the controversy between the parties, which is reproduced as under:

“That the hypothecated good shall be insured against fire risk by the borrowers with some insurance office or offices approved by the bank and in the name and for the sole benefit of the bank, for their full market value and the borrower shall forthwith and from time to time deliver to the bank all policies and receipts for premium paid on such insurance endorsed and assigned with the full benefit thereof in favour of the bank . Should the borrower fail to so insure or fail to deliver the policies or receipt for the premia duly endorsed as aforesaid within three days of their receipts , the bank shall be at liberty though not bound to effect such insurance at the expense of the Borrowers. The Borrowers further agree that the bank shall be at liberty at any time in its discretion (without being bound to do so) to insure the securities for their full market value against riot , fire , theft and civil commotion risks or any other type of insurance risk at the expense of the Borrowers with any insurance company.”
13.

Now, it is established on record that the hypothecated good shall be insured against theft etc. by the borrowers with some insurance office or offices. It is also established on record that the bank shall be at liberty in its discretion (without being bound to do so) to insure the securities for their full market value against riot , fire , theft and civil commotion risks or any other type of insurance risk at the expense of the Borrowers with any insurance company.
14.

That clause /para no.7 referred to above is clear to the effect that it is the borrower who will get the hypothecated good insured and the bank shall be at liberty at any time in its discretion without being bound to do so to insure the securities for their full market value against riot , fire , theft and civil commotion risks or any other type of insurance risk at the expense of the Borrowers with any insurance company, which means that the duty is casted upon the borrower and in this case upon the complainant to get the tractor insured with any insurance company and the bank had the discretion without being bound to do so to insure the tractor for its full market value against theft etc. with any insurance company.
15.

Under the given situation, it can legitimately be concluded that the complainant was under legal obligation to get his tractor insured against theft etc. and the OP No.4- Bank was at liberty to get the said tractor insured without being bound to do so, therefore, it does not lie in the mouth of the complainant that it was the duty casted upon OP No.4 to get his tractor insured with insurance company.
16.

The case of the complainant is that his tractor met with an accident on 12.3.2007. It is further the case of the complainant that the tractor in question alongwith trolley were stolen on 5.1.2008. The complainant has alleged vide para no.2 of the complaint that OP No.4 was responsible to get the tractor insured and the charges of insurance were to be deducted from his account. It has already been held in para supra that it was the duty casted upon the complainant to get his tractor insured and OP No.4- Bank was at liberty to get the said tractor insured without being bound to do so. Since the complainant had not insured his tractor with the insurance company in view of clause no.7 of the hypothecation deed Ex. OP-12, therefore, the OP No.4- bank is not liable to indemnify the complainant with regard to the loss suffered by him.
17.

It has already been held that as per clause /para no.7 of the hypothecation deed , the complainant was under legal obligation to get his tractor insured with some insurance company,which he has failed to do so , therefore, he has failed to prove any deficiency in service on the part of the OP No.4. Reliance placed on 1(2007)CPJ, 29 (NC) UCO Bank vs Gadadhar Mohapatra.
18.

Ld. Counsel for the complainant placed reliance on document Mark C-13. It was submitted that as per recitals of Mark C-13, OP No.4 was liable to compensate the loss to the complainant but this limb of argument is not available to the complainant in view of clause/para no.7 of the hypothecation deed Ex.OP-12.
19.

As a result of the above discussion, it is held that there is neither any deficiency in service on the part of the OPs nor the OPs are liable to compensate the complainant, with the result, the complaint is dismissed.

M/s.Baba Farid Earth Movers Near 12 Naka Octroi, Opposite Labu Ram Petrol Pump, Amrittsar Road, Moga care of City Centre Tyre Near Gulabi Bagh, Opposite Samrat Hotel, G.T.Road, Moga through its partner Ramandeep Singh Khosa.

Versus

1. Bajaj Allianz Genl.Insurance Co.Ltd. Regd.Office G.E.Plaza, Airport Road, Yerwada, Pune-411006 through its Managing Director.

2. Bajaj Allianz Genl.Insurance Co.Ltd. Branch Office, Ludhiana throughits Branch Manager/ Authorised person, SCO 147, Feroze Gandhi Road, Ludhiana.

3. H.D.F.C.Bank Ltd. Branch Office Ferozepur Road, Moga through its Branch Manager.

Sh.Ramandeep Singh has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘Act’) against HDFC Bank through its Senior Branch Manager & others (hereinafter referred to as Bank) opposite parties directing them to pay a sum of Rs.2,33,375/- as claim of the insured H.T.V. vehicle being owned by the complainant alongwith compensation for harassment and inconvenience i.e. the sum of Rs.50000/- and cost of complaint of Rs.10000/- with interest @ 18% p.a. since 23rd September 2008 till realization of the amount.

2. Briefly stated that the complainant with partner for earning their livelihood purchased one Tipper (HTV-vehicle) having Chesis no.448026 MSZ 141753, Engine No.70M62626345, Make-Tata of which now registration no.PB-29-H-9933 in the year 2007 after taking loan for Rs.10.96,000/- from the respondent no.3 and executed hypothecation agreement in favour of respondent no. 3 and the same was got insured from the opposite parties at Moga through Sh.Vikas Gupta on 4.1.2009. Photo copy of the cover note is enclosed which may be read as part and parcel of this para on payment of Rs.18851/- paid in cash for all the purposes as mentioned in the cover note and put the vehicle on road on 25.2.2008.

The vehicle was carrying G.S.B. material and while unloading the same over turned and the intimation was given to the Insurance Company/ opposite party regarding the accident and loss suffered by the vehicle to send some surveyor and do the needful and pay the compensation to the complainant. All the necessary record as demanded by the opposite parties was produced by the complainant. The vehicle is being run and plied in accordance with the rules and the vehicle was carrying the G.S.B (material) well within the capacity as per the rules and the same was never over loaded but after getting all the record, the opposite party has for extraneous reasons, and without based on actual facts alleged in the letter dated 23rd September, 2008, has stated that the claim of the complainant has been repudiated despite the fact that whatever was demanded by the opposite party, was produced.

As per letter dated 11tth September, 2008 it was claimed in alleged surveyor report that the vehicle was over loaded and due to over loading, the vehicle overturned which is totally false and baseless as the tipper (Vehicle) cannot be over loaded and at the time of accident, the same was not over loaded but from the letter, it clearly appears that the opposite parties had clear intention to avoid genuine claim of the complainant on frivolous grounds and as such by forging the alleged version without any reason, even after supplying of all the record and information, the claim has been repudiated illegally, unlawfully and without any basis. The opposite parties cannot hold the claim of the claimant as ‘No Claim’ or repudiate the name as the same is without any reason or alleged terms of policy and the allegation being false and frivolous and without application of mind by the opposite parties, the letter of repudiation dated 23rd September 2008 is liable to set aside.

The vehicle has suffered loss due to overturning as mentioned and the sane was got repaired from New Daudharey Truck Trailer & Tipper body Builders, Ludhiana Road, Moga, Khalsa Mechanical Works, New Gulabi Bagh, G.T.Road, Moga, Bhau Motor Repair Works, New Gulabi Bagh, G.T.Road, Moga Kanpuria Brothers, Simran Crane Service, Gulabi Bagh, Moga etc. and spare parts etc. were also purchased to repair the vehicle to put to ply and in view of the said facts, as the repudiation is without any ground and application of mind, declining of payment lf the amount of compensation many a times, but for extraneous reasons and by applying unfair trade practice, the opposite parties have denied the genuine claim of Rs.2,33,375/- to be paid to the complainant. Therefore, the complainant is also entitled to interest @ 18% p.a. since 23rd September 2008 till realization of the amount alongwith compensation for harassment and inconvenience for a sum of Rs.50,000/- alongwith costs of the complaint to the tune of Rs.10000/-. Hence, the present complaint.

3. Notice of the complaint was given to the Ops 1, 2 and 3 who appeared through Sh.Jaswinder Singh Advocate and filed written reply contesting the same. They took up preliminary objections that the complaint is not maintainable and the complaint filed by the complainant is absolutely false, frivolous as there is no deficiency on the part of the answering OP. Complainant has not come with clean hands before this Hon’ble Forum because claim of the complainant has been rightly repudiated by the answering opposite parties owing to the reason that the vehicle no.PB29H-9933 suffered loss on 26.2.2008 not due to the external means. Instead the said vehicle over-turned as it was over-loaded, due to which its jack gave way and as a result the vehicle over-turned and suffered loss due to the over-loading of the vehicle, which is not covered under the insurance policy. The claim of the complainant was processed promptly and report of surveyor Shri Sanjeev Narula was obtained and on finding that the surveyor had given remarks that the accident to the said vehicle occurred due to un-loading, whereas 1 M.T. 47 is not incorporated in the policy as per spot survey, the vehicle was over loaded at the time of accident, thereby it suffered the loss.

Moreover while discussing the cause & nature of the accident, the surveyor has clearly written that as reported to him and mentioned in the claim form and also verified by the surveyor, while lifting the load body for un-loading, centre pipe (3rd rod) of the jack got bent. As a result the vehicle got –unbalanced and its load body turned turtle towards its left hand side, causing damage to the vehicle. Perusal of G.R.No.1037 dated 25.2.2008 will show that it was loaded with 350 cft. of gravel, which clearly shows that the vehicle was over-loaded. Therefore, claim of the complainant has been rightly repudiated. Even while processing the cause, letter dated 28.8.2008 was sent to the complainant vide which the complainant was asked to explain within 7 days of receipt of the letter that why the claim should not be repudiated, as there was clear violation of the insurance policy terms & conditions.

Again letter dated 11.9.2008 was sent to the complainant & again requested to submit their clarification on the subject. It was only after non-receipt of any explanation and response from the complainant, that claim of the complainant was repudiated vide letter dt.23.7.08. As per the RC of the insured vehicle the load carrying capacity of the vehicle is 15800 Kg. only. But as per the report of the surveyor dated 29.2.2008 the vehicle was carrying 19824 kg of gravel which clearly show that the vehicle was overloaded. The surveyor assessed the loss of Rs.102362/- but the same is not payable under terms & conditions of the policy. The vehicle in question was overloaded at the time of alleged loss, which was due to the internal means and not due to any external means and is not covered under the Insurance policy. Hence the prayer that the complaint being false & frivolous be dismissed with costs.

4. In order to prove the case, the complainant tendered in evidence the affidavit Ex.A1 of Ramandeep Singh complainant, copy of RC Ex.A2, copy of driving licence Ex.A3, copies of letters Ex.A4 to Ex.A10, copies of bills Ex.A11 to Ex.A18 and closed the evidence.

5. To rebut the evidence of the complainant, the Ops 1, 2 and 3 tendered in evidence affidavit Ex.R1 of Divisional Manager, Ludhiana, documents Ex.R2, Ex.R3 and affidavit Ex.R4 of Neeraj Thand, Branch Head Moga Branch, documents Ex.R5 to Ex.R24 and closed their evidence.

6. Both the parties submitted written arguments and we heard Sh.Sanjeev Sharma, ld.counsel for the complainant, Sh.Jaswinder Singh ld.counsel for Ops 1, 2 and 3 and have very carefully perused the evidence on the file.

7. Sh.Sanjeev Sharma ld.counsel for the complainant has mainly stated in written arguments that complainant with partners for earning their livelihood purchased one Tipper (HTV-vehicle) PB-29H-9933 in the year 2007 after taking load of Rs.10,96,000/- from the OP-3 and was insured through Vikas Gupta on 4.1.2008. On 25.2.2008 the vehicle was carrying G.S.B. material and while unloading the same overturned & intimation given to the insurance company to send surveyor for needful and compensation. All record as demanded by the OP was produced.

As per letter 11.9.08 it was cleared that alleged surveyor report that vehicle was overloaded which is totally false, the same was not overloaded but from the letter it clearly appears that the OP has clear intention to avoid the genuine claim of the complainant on frivolous ground, the letter for 23.9.08 is liable to got aside ignored. The opposite parties have denied the genuine claim of Rs.233375/- to be paid. This contention of the ld.counsel for the complainant has no force. The Ops in written arguments mainly mentioned that the damages to the vehicle are not at all by the external means and these are purely due to internal means i.e. brake down of its jack purely due to over loading. The G.R.produced by the insured issued from Moga and not from the Hajipur from where the material was brought. It does not appear to be genuine. The weight calculation of gravel is 450 cft. instead of 350 cft. as under:

1. 350 cft= 350 cft/35.31= 9.91Cu.M.@2000 Kg/Cu.M=19824 Kgs.

2. 450 cft= 450 cft/35.31=12.74Cu.M@2000 Kg/Cu.M=25480 Kg.



The driver Jasbeer Singh has gone away from the spot because he was sick and his left was also injured, the driver was driving in medically unfit condition. According to Ex.R21 registration certificate of the insured vehicle the gross weight of the vehicle is 25000 Kgs and the vehicle was carrying 25480 Kgs weight of goods against the permissible limit of 15800 Kgs. The damages were noticed in the presence of insured’s rep. Mr.Sarabjitt Singh who was the only person present on the spot. Ex.R11 to Ex.R20 are relevant. The terms and conditions of the insurance policy are respectively Ex.R2 and Ex.R3.

8. Moreover, the complainants has failed to lead any cogent and convincing evidence to prove that he is liable to get compensation/ claim against the accident of vehicle Tipper except the affidavit Ex.A1. There is no corroboration to the said affidavit that the accident of the vehicle is external. However, they have reason to give false affidavit in order to save themselves from the consequences by illegal means. Thus no reliance could be placed on the affidavit Ex.A1 and we discard the same.

9. Now the question is whether the complainant is liable to pay Rs.233375/- on account of claim of the insured HTV vehicle as per insurance policy. The answer to the question is negative. As per the surveyor report of surveyor Mr.Sanjeev Narula Ex.R9 the vehicle was overturned at the time of accident as per calculation of weight done by the spot surveyor. While lifting the load body for unloading, centre pipe (third rod) of the jack got bent. As a result, the vehicle got unbalanced and its load body turned turtle towards its LH side, causing the damages. Accident to the vehicle occurred while unloading, whereas, IMT-47 is not incorporated in the policy. The vehicle was overturned at the time of accident. The damage of the vehicle is due to internal and not external which is not covered under the standard form from vehicle package policy. So there has not been any deficiency on the part of the Ops.

10. The ld.counsel for the parties did not urge or argue any other point before us.

11. In view of the aforesaid facts and circumstances, the complaint filed by the complainant is dismissed.

Kandregula Mohan Babu, S/o K.V.S. Narayana, Hindu, aged 23 years, R/o D.No12-6-44/1, Gavarapalem, Anakapalle.

… Complainant

1. M/s Bajaj Allianz General Insurance Company Ltd., rep. by its Branch Manager, 2nd Floor, D.No.47-10-21/12, 2nd Floor, Isnar Plaza, Dwarakanagar, Visakhapatnam – 16.

2. M/s Bajaj Allianz General Insurance Co. Ltd., rep. by its Managing Director, G.E. Plaza, Airport Road, Yerwada, Pune – 6.

... Opposite Parties

: O R D E R :

1. The complainant is a grand son and nominee of Kandregula Venkayyamma, who had taken an Accident Insurance Policy, bearing No.OG-04-1804-9901-00000135 Imd Code: 10003367 covering period from 14-08-2003 to 13-08-2004. While so, it is pleaded that said Kandregula Venkayyamma, fallen from stair case steps and received grievous head injuries at 9.00am on 03-10-2003 and shifted to Government Hospital, Anakapalle and as the condition was serious, she was further shifted to King George Hospital, Visakhapatnam, where the Doctors pronounced that the victim was brought dead. Due to lack of knowledge, the matter was not reported to police. As it was an accidental death the opposite parties were informed, which asked for the claim form along with relevant papers. It is complained that though relevant papers were submitted the claim was not settled nor rejected till date. This inaction on the part of the opposite parties caused lot of mental agony and there is breach of agreement by the opposite parties. Hence the complainant seeking payment of Rs.3,00,000/- being the policy amount with interest 24% p.a. from the date of submission of claim form till the date of realization and also Rs.25,000/- damages for causing mental agony and another Rs.25,000/- damages for breach of agreement together with costs.

2. The opposite parties 1 and 2 filed a counter pleading, that though issuance of policy is admitted later it was found that the same was procured by fraud and suppressing the material facts and hence cancelled. No claim forms were submitted by the complainant. The opposite parties came to know that the death was a natural death, which was confirmed by the investigator. The documents namely the OP chit was a concocted document. The OP chit as well as the medical certificate on which the complainant was relying was not a genuine one and the King George Hospital, Visakhapatnam, authorities informed the investigator, that it was not issued by them. The complainant is not a consumer and claim cannot come under purview of Consumer Dispute and this Forum has no jurisdiction. Hence complaint may be dismissed.

3. At the time of enquiry both parties filed affidavits and reiterated their contentions and also filed documents, marked as Ex.A.1 to Ex.A.6 and Ex.B.1 & Ex.B.2. Both the counsels were heard.

4. In view of the pleadings as well as contentions raised by the counsels at the time of enquiry, the point that arise for determination in this case is:

Whether there is any deficiency of service on the part of the opposite parties and the complainant is entitled for the claim made?

5. In this complaint by nominee claiming the policy amount for the death of his grand mother, who took accident insurance policy, Ex.A.1, as can be seen from the contentions of the opposite party/ insurance Company, is that the policy was fraudulently obtained and hence cancelled. The other plea is that the very nature of the death by the insured is disputed, contending that it was a natural death but not accidental death as claimed by the complainant and hence not liable.

6. With regard to the first objection that the policy was fraudulently obtained and hence cancelled, the opposite parties could not come up with any material to show that the policy was cancelled or even the allegation that it was fraudulently obtained. When undisputedly Ex.A.1 policy was issued by them, the burden lies on them to prove, the circumstances which entitled them to cancel the same subsequently. Hence the first plea of the Insurance Company opposing the claim cannot be sustained.

7. With regard to the dispute as to the nature of the death, whether it is accidental or natural, as per the complainant’s case, the insured was alleged to have fallen from stair case steps at 9.00am on 03-10-2003 and received grevious head injuries. It is their further case that she was shifted to Government Hospital, Anakapalle and from there to King George Hospital, Viskahapatnam, where the Doctors pronounced that she was brought dead to the hospital. There is absolutely no material that could be placed by the complainant as to the treatment obtained at Government Hospital, Anakapalle. When she was taken to Government Hospital and treated, there must be documentary evidence to prove the same and the complainant miserably failed to place the same before the Forum.

8. The complainant is solely relying upon Ex.A.2 OP Chit dated 03-10-2003 claimed to have been issued by King George Hospital, Visakhapatnam. This Ex.A.2 OP chit bearing serial No.19285 shows a noting by the Doctor that the Head Injury due to fall from stair case steps on 03-10-2003 at her house and she was said to be in unconscious state. On the back side of this OP chit, it is noted that there is a contusion injury on the Occipetal region and with further observation as to the BP, pulse and other examination were conducted, it was further endorsed that the patient was brought dead and body handedover to relatives. It supposed to contain the signature of Dr. Prasad Rao, Civil Asst. Surgeon of KGH, Viskahapatnam. Surprisingly the complainant did not file the affidavit of this Doctor, Prasad Rao, to prove that he examined the deceased. There is no other piece of evidence either oral or documentary by the complainant to support this Ex.A.2.

The reasons are quite obvious. Ex.B.1 is letter issued by the King George Hospital, Visakhapatnam, which would show that on verification of their records, General OP register, the OP ticket No.19285 dated 03-10-2003 does not bear the name of K. Venkayamma and infact on that date the serial number of the OP ticket started from 199641 and ended 199870. Ex.B.2 is extract of OP register dated 03-10-2003, based on which this Ex.B.1 letter is written by Hospital Authorities. Thus these two documents of the opposite parties would prove that the OP chit Ex.A.2 was not at all issued by the King George Hospital, Visakhapatnam. Thus it is quite clear that Ex.A.2 is a fabricated document to support the false claim of the complainant and it is evident that the natural death of the policy holder was tried to be converted into one of the accidental death in order to enable them to claim policy amount. It is nothing but fraud played by the complainant to enrich himself by making false claim. Such being the case the opposite parties cannot be found fault for refusal to pay the policy amount and it cannot be termed as deficiency in service. In these circumstances that a false claim was made, it would be just and proper that the complainant should pay the costs of the opposite party. Accordingly this point is answered against the complainant.

9. In the result, the complaint is dismissed and in the circumstances of the case the complainant is directed to pay cost of Rs.2,000/- (Rupees two thousand only) to the opposite parties.

Sri Kandregula Atchaiah Naidu, S/o Appa Rao, Hindu, aged 60 years, residing at Gvarla Anakapalle Village, Thotada Post, Anakapalle Mandal, Visakhapatnam District.

… Complainant

1. M/s.Baja Allianz General Insurance Co.Ltd., rep.by its Branch Manager, 2nd floor, D.No.47-10-21/12, 2nd floor, Isnar Plaza,a Dwarakanagar, Visakhapatnam-16.

2. M/s.Baja Allianz General Insurance Co., Ltd., rep.by its Managing Director, GE Plaza, Airport Road, Yerwada Pune-6.

... Opposite Parties

: O R D E R :

1. The Complainant, a resident of Gavarla Anakapalle Village, is the nominee for his daughter Smt.Atchamma, in whose name Personal Accident Insurance Policy bearing No.OG-05-2401-9960-00000039 covering the period from 31-10-2005 to 30-10-2006 was taken and sum assured was Rs.3,00,000/-. It is pleaded that on 17-3-2006, the said Atchamma accidentally faced snake bite in the fields and immediately she was taken to KGH, Visakhapatnam, where she was given first aid and sent back home by giving medicines. However, she succumbed to the injuries on 27-5-2006. The death had been intimated to the Opposite Parties and claim forms were also submitted, which was repudiated by them without any proper and just reasons. Hence, this complaint for direction to pay Rs.3,00,000/- policy amount with interest 24% by the Opposite Parties and also damages of Rs.25,000/- for causing mental agony and compensation of Rs.25,000/- for breach of agreement.

2. The Opposite Party filed the counter pleading that the Calcutta Office which issued the policy was not impleaded and so also the Global Trust Financial Services, which was facilitator also not impleaded and the complaint is bad for non joinder of necessary parties. There is no proper intimation and furnishing of relevant documents, which support the claim and hence, the company repudiated the same and informed the Complainant, in writing by explaining the reasons. The Complainant did not intimate nor furnished OP chit or any medical certificate, which has been issued by KGH, Visakhapatnam. They must have been created, as an after thought. The Complainant failed to submit all the relevant documents along with the claim form. Hence, there is no deficiency of service. It also pleaded that number of CD’s from the same area, with similar cause of action (specifically mentioned the earlier case numbers) and the company found that the OP chits as well as medical certificates are created one and investigator also appointed in this regard. For these reasons the complaint has to be dismissed.

3. At the time of enquiry both the parties filed affidavits in support of their contentions and also marked Exs.A1 to A4 and Exs.B1 and B2 are marked on either side.

4. Both the counsels were heard.

5. In view of the pleadings, as well as the contentions raised by the counsels at the time of case, the point that would arise for consideration in this case is :

Whether there is any deficiency in service on the part of the opposite parties and the Complainant is entitled for claim made?

6. In this case of the nominee claiming the amount under a Personal Accident Insurance Policy, Ex.A1 is admittedly the policy issued by the Opposite Party covering the period from 31-10-2005 to 30-10-2006. The insured was said to have died on 27-3-2006 at her native place for the alleged snake bite on 17-3-2006. The date of incident was originally pleaded as 17-5-2006 but later amended as 17-3-2006. Similarly death was pleaded as 27-5-2006 but later amended as 27-3-2006. When a claim was made the Opposite Party repudiated the same, on the ground, investigation revealed that the policy was issued after 4 months of death of the insured. But it is to be noted the death was shown to be on 27-5-2006, as per Ex.A3 death certificate. As already noted the date of death was amended from 27-5-2006 to 27-3-2006. But whether it is 27-5-2006 or 27-3-2006, when the policy was issued covering the period from 31-10-2005 to 30-10-2006, it cannot be understood how the claim could be repudiated by the Opposite Party stating that that the policy was issued 4 months after the death of the insured. So it is quite evident that the repudiation on that ground cannot be sustained.

7. But this does not automatically entitle the Complainant to claim the policy amount. It being a personal accident insurance policy, it has to be naturally proved that the death was an accidental death but not natural death. As per the plea of the Complainant the deceased had a snake bite, which ultimately resulted in her death two months after the incident. As the date of death as shown 25-5-2006 as per Ex.A3, it is amazing that the victim of a snake bite could survive for 2 ½ months, if ultimately that was the cause of death.

8. With regard to the proof as to cause of death, the Complainant is relying upon Ex.A2 OP chit. This is supposed to be issued at KGH, when the victim was brought here on the date of incident. Curiously it was dated 17-3-2006, but surprisingly the date when she was brought to the hospital was noted as 17-5-2006 and time was mentioned as 11 A.M. This discrepancy of preparing OP record on two months prior chit is not explained. Moreover, not even the affidavit of Doctor, who prescribed medicines was filed. Apart from that, it shows an endorsement of ‘admit’ but undisputedly the victim was taken back home, said to be as per the advise of the Medical Officer. It merely reads the BP reading and PR pulse rate and surprisingly it does not mention in the complaint, for which complaint she was brought. The preliminary diagnosis is not there. Above all, Ex.B2 is a letter filed by the Opposite Party from KGH informing the Opposite Party counsel that on the verification of their OP register would show that particular OP chit was not issued in the name of Atchamma, the deceased.

It also mentions that on that date i.e., 17-5-2006 the serial Number started from 149367 and ended with 150957. Ex.B2 is the extract of the OP register of 17-5-2006. These Exs.B1 and B2 would categorically disprove the claim of the Complainant that Ex.A2 OP chit was issued by the KGH, Visakhapatnam on that day. Obviously catching hold of unused old OP chit, this Ex.A2 must have been fabricated ignoring the fact the dates were not tallying. In the light of this discussions, we hold that, the Complainant miserably failed to establish that his daughter died of snake bite which can be treated as accidental death, in order to claim the policy amount. Evidently it is a false claim. Thus, though the reason for repudiation is found to be not established, the Opposite Partys’ rejection of the claim cannot be held to be improper, amounting to deficiency in service. Consequently, the Complainant is not entitled to any compensation of the reliefs. Accordingly, this point is answered.

9. In the result, the complaint is dismissed. In the circumstances of the case, the Complainant is directed to pay Rs.2,000/- (Rupees Two thousand only) as costs to the Opposite Parties.

Mrs. Varanasi Vasanthi, W/o Late V. Mohan Rao,

aged about 45 years, Hindul Hosue Wife, Presently

R/at D.No. 7/137, Jayanagar colony,

Kadapa – 516 001 (A.P). ….. Complainant.

Vs.


1) Bajaj Allianz Life Insurance Co. Ltd., Rep. by its

Branch Manager, Hyderabad Branch, Hyderabad.

2) Bajaj Allianz Life Insurance Co. Ltd., Rep. by its

General Manager, Regd. And head Office: GE Plaza,

Airport road, yerawada, Pune – 411 006.

3) Bajaj Allianz Life Insurance Co. Ltd., Rep. by its

Branch Manager, Dwaraka Towers, Kadapa. ….. Respondent.



This complaint coming on this day for final hearing on 18-6-2009 & 22-6-2009 in the presence of Sri G. Trivikram Singh, Advocate, for complainant and Sri D.V.S. Prasad, Advocate for respondents and upon perusing the material papers on record, the Forum made the following:-
O R D E R


2. The brief facts of the complaint is as follows:- The husband of the complainant by name V. Mohan Rao, was working as Joint Director, Health Department. He took one life insurance policy with unit linked plan on his life for Rs. 5,00,000/- from R1 under policy No. 0051429015 commenced from 28-4-2007 with nomination given to the complainant as wife. The insured paid Rs. 50,000/- towards annual premium. As per terms of the policy in case of death of the insured the nominee would get the assured amount. The insured died on 01-4-2008 at Yashoda Hospital, Hyderabad on account of ill health. The complainant as nominee submitted all the documents to the respondents to settle the claim. But she received a repudiation letter dt. 19-6-2008 from R2 on the ground that the insured did not disclose the facts at the time of proposal about his previous history of Extra pulmonary tuberculosis in 2002 and was a known smoker for the last 17 years.

The complainant wrote a letter to the claims review committee of the respondents but they confirmed the decision of the R2. The insured had lung cancer one month prior to the death, when he visited Yashoda Hospital, Hyderabad on 28-2-2008 for investigations. The insured had no intention to deceive the respondents. If so he would have taken a policy for huge amount. He had interest in capital unit gain instead of death claim proceeds. He would have taken a term insurance policy in stead of unit linked policy. Therefore, there was no suppression of material facts. There was no basis that the insured was a smoker for the past 17 years and had extra tuberculosis in 2002. The policy was issued on the basis of information given by the proposer and the confidential report given by the agent. Therefore, the complaint was filed for Rs. 5,00,000/- with net asset value of the units of the policy holder’s account together with interest @ 18% p.a. from the date of death of the insured and Rs. 50,000/- towards mental agony and Rs. 2,000/- towards costs.


3. The respondents filed a counter denying the averments of the complaint. The complainant made a false claim on the ground that her deceased husband died on account of ill health on 01-4-2008 at Yashoda Hospital, Hyderabad and she was entitled for the benefits under the policy. The deceased was suffering from Non Small Cell Carcinoma Of Right Lung With Multiple Bone Meastasis Hypertension And Diabetes Mellitus Type II problem before taking the policy. The insured had knowledge of the said diseases but did not disclose in the proposal form with a view to get unlawful gain. The contract of insurance was under utmost good faith on the part of both parties to the contract. The insured had to reveal all the particulars of his health. The policy would have issued on the basis of the information given by the insured. More over it was issued on the sole declaration effected in the proposal form dt. 28-4-2007.

4. The complainant suppressed all the material facts in the complaint and simply mentioned that the insured died due to ill health and he suffered from Lung Cancer one month prior to his death was not correct. The deceased was a known smoker since 17 years and was suffering from Extra Pulmonary Tuberculosis in 2002 (Lung Cancer) which led to Non small Cell Carsinoma of right Lung with Multiple Bone Meastasis Hypertension and Diabetes Mellitus Type II. The insured was admitted in Yashoda Hospital for treatment on 28-2-2008 and consulted Dr. Babaiah, Senior Oncologist. But he died on 01-4-2008. The cause of death was Cancer suffered by the insured even prior to the commencement of the policy and hence, taking policy was a fraud for unlawful gain. Had the deceased revealed the true facts of his ill health, the risk would not have been entertained and policy would have been rejected. The death occurred due to previous complications.


5. The insured as a doctor and the case history issued by Yashoda Cancer Institute, Hyderabad revealed that the insured was a known Lung Cancer patient with low back pain since one year. The first diagnosis was not mentioned. The low back pain was due to bone Meastasis. He was a known diabetic and hypertension. The question of hypertension and cancer was willfully concealed by the insured and they were not disclosed by the complainant in the statement, and hence an adverse inference may be drawn against the complainant for non disclosure of the first treatment details of cancer.

6. The policy was not issued at Kadapa and death was not occurred at Kadapa at the time of taking policy. The insured was a resident of Hyderabad and policy was issued at Hyderabad. For the sake of jurisdiction the R3 was unnecessarily impleaded. The R3 was an unnecessary party and claim may be dismissed against R3. Thus the Forum had no jurisdiction.

7. Under Section 45 of Insurance Act the company would repudiate the claim within two years of commencement of the policy. If it is found that the insured had suppressed the facts of his health and obtained a policy, the policy could not be cancelled. Thus there were no merits and the complaint may be dismissed with costs.

8. On the basis of the above pleadings the following points are settled for determination.

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

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

iii. To what relief?

9. On behalf of the complainant Ex. A1 to A3 were marked and on behalf of the respondent Ex. B1 to B5 were marked. No written arguments were filed by both parties.


10. Point No. 1 & 2 The complainant was the wife of Late Dr. V. Mohan Rao, who worked as Joint Director of Health Department, Govt. of A.P. Hyderabad. Late Dr. Mohan Rao, took one life insurance policy with unit linked plan on his life for Rs. 5,00,000/- with policy No. 0051429015 commenced from 28-4-2007 from R1. The complainant was the nominee under the policy. The insured Mohan Rao paid Rs. 50,000/- towards annual premium to the policy. While so the insured died on 01-4-2008 at Yashoda Hospital, Hyderabad due to ill health. After the death of Mohan Rao his wife as nominee submitted all the documents as required to the respondents to settle the claim under the policy. But the respondents repudiated the claim under Ex. A1, dt. 19-6-2008 a Xerox copy of the letter on the ground that the insured late Dr. V. Mohan Rao had history of Extra pulmonary tuberculosis in 2002 (Lymph Glands) and a known smoker for the past 17 years and the details were not disclosed in the proposal form, dt. 28-4-2007.

Since the material facts have not been disclosed in the proposal form, the respondents repudiated the claim. The complainant addressed a letter to the Claims Review Committee to reconsider the claim under the policy and arrange payment of claim amount with her change of address at Kadapa. It was Ex. A2. The Claims Review Committee confirmed the repudiation of the claim by way of letter under Ex. A3, dt. 18-8-2008 to the complainant to her Kadapa address. Except Ex. A1 to A3 the complainant had not filed any other documentary proof to prove her claim. It is unfortunate that either of the parties in the complaint have not submitted the copy of the policy with terms and conditions. Even though the Forum returned at the first instance the complaint with an objection to file the copy of the policy as prima-facie proof, it was represented that the complainant lost her Photostat copy of the policy and it would be submitted after getting the same. The complainant had atleast not filed first premium payment receipt also.


11. On the other hand the respondents filed a Xerox copy of proposal form of Late Dr. Mohan Rao under Ex. B1, dt. 28-4-2007 which disclosed the sum assured as Rs. 5,00,000/- and the annual premium was Rs. 50,000/- and the nominee was the complainant. The policy was taken by the deceased at Hyderabad as Joint Director of Health (Leprosy) Hyderabad. In Ex. B1 under question No. 14, regarding the history of the health of the insured it was noted that the deceased was in good health. It was the duty of the complainant to file death extract, discharge summary from the hospital and case record of the deceased from Yashoda Hospital, Hyderabad. The Xerox copy of case record under Ex. B2 and Xerox copy of death summary issued by Yashoda Hospital, Hyderabad under Ex. B3 and Xerox copy of certificate issued by Dr. M. Babaiah, Yashoda Cancer Institute, Hyderabad under Ex. B4, the Xerox copy of burial ground report of Dr. Mohan Rao issued by Grater Hyderabad Municipal Corporation, Hyderabad under Ex. B5 were filed by the respondents.

12. A Super Speciality Hospital or Corporate Hospital like Yashoda Hospital, Hyderabad should not give a case record with untrue facts or false information regarding the health condition of a patient. In Ex. B2, Yashoda Hospital, Hyderabad mentioned that Dr. Mohan Rao was known case of Lung Cancer with Bone Meastasis with low back pain since one year which was aggravated since one month and had past history of Extra pulmonary tuberculosis in 2002 (Lymph Glands) and known smoker since 17 years and occasional alcohol consumption. The daughter of the deceased gave consent form for admission, investigation and treatment of the patient on 28-2-2008 and the same was enclosed in Ex. B2. The insured had hypertension and diabetes mellitus. The entire history of present illness and the past history of the deceased have been mentioned in the death summary Ex. B3. The cause of death on 01-4-2008 was Non Small Cell Carcinoma of Right Lung With Multiple Bone Meastasis Hypertension and Diabetes Mellitus Type II. The particulars of the patient in the case record of the hospital Ex. B2 have been furnished either by the patient or his relatives.


13. The complainant contended that the insured did not suppress the material facts regarding his health in the proposal form Ex. B1. At the time of giving proposal form, the insured was hale and health. But it was denied by the respondents. When the respondents denied that the complainant suppressed the material facts it was their duty to prove the same. The respondents filed Ex. B2 and Ex. B3 to prove that the insured had a past history of Extra pulmonary tuberculosis in 2002 (Lymph Glands) and occasionally consumption of alcohol and a known smoker since 17 years. In Ex. B1 under question No. 14 (c) regarding tuberculosis, the proposer i.e. the deceased gave a negative answer. Yashoda Hospital, Hyderabad had no necessity to mention tuberculosis since 2002 in their case record Ex. B2. Knowing fully well regarding tuberculosis in 2002 (Lymph Glands) the proposer did not reveal the facts under question No. 14 (c) in Ex. B1. The deceased suppressed the material facts of his health in the proposal form i.e. Ex. B1. As discussed earlier it was also noted in Ex. B3 death summary also. Being a doctor the deceased had known much regarding changes in the body after he had an attack of Lung Cancer.

14. It was mentioned under Ex. B1 that the premium was annual premium of Rs. 50,000/- i.e. first premium was paid along with proposal form on 28-4-2007 and the next immediate premium should be on 28-4-2008. But before the payment of premium on 28-4-2008 the insured died on 01-4-2008 and therefore, the contract was not a concluded contract. In these circumstances the complainant is entitled only to the first premium amount of Rs. 50,000/- from respondents 1 & 2 jointly and severally. Regarding the jurisdiction of the complaint the complainant impleaded the branch office of the company at Kadapa as 3rd respondent. Therefore, the District Forum, Kadapa had territorial jurisdiction to entertain the complaint. Thus there is deficiency of service on the part of the respondents in non refund of first premium amount of Rs. 50,000/- while repudiating the claim. Hence, the points are answered accordingly.

15. Point No. 3 In the result, the complaint is allowed, directing the respondents 1 & 2 jointly and severally liable to pay Rs. 50,000/- (Rupees Fifty Thousand Only) without interest, compensation and costs, payable within 45 days from the date of receipt of this order. The rest of the claim and the case against R3 is dismissed without costs.

Biyyam Usha Rani, W/o Late Biyyam Damodhar Reddy,

aged about 42 years, Resident of D.No. 24/742,

Guravaiah Thota, Proddatur – 516 360,

Kadapa district. ….. Complainant.

Vs.

1. Bajaj Allianz Life Insurance Co. Ltd., Rep. by its

Branch manager, Branch Office, Proddatur.

2. Bajaj Allianz Life Insurance Co. Ltd., Rep. by its

Branch Manager, Branch Office, near 7 Roads, Kadapa.

3. Bajaj Allianz Life Insurance Co. Ltd., Regd. And head office,

Rep. by its Manager, G.V. Plaza, Airport road, Yerrawada,

Pune – 411 006. ….. Respondent.

O R D E R


2. The brief facts of the complaint is as follows:- The complainant was the wife of Biyyam Damodhar Reddy, who was hale and healthy prior to the death. On 4-3-2006 the R1 took a proposal form for life insurance from the deceased Damodhar Reddy along with a cheque bearing No. 281473, for Rs. 20,000/-, dt. 4-3-2006 on ING Vysya Bank Ltd., towards proposal deposit. The Kurnool branch issued a receipt dt. 6-3-2006. The R1 issued first premium receipt dt. 9-3-2006 duly accepting the proposal for life insurance covering the date of risk from 9-3-2006 subject to the terms and conditions. The sum assured was Rs. 1,00,000/- under the policy No. 0017160745 on 10-3-2006. The basic benefit in case of death was Rs. 1,00,000/-. The complainant was the beneficiary of 100% share to the sum assured.


3. On 19-4-2006 the R1 obtained another proposal form for life insurance from the deceased Damodhar Reddy along with Rs. 5,000/- towards proposal deposit and issued receipt dt. 24-4-2006 for sum assured Rs. 50,000/- commenced from 24-4-2006 under policy No. 0020465750. The basic benefit under the policy in case of death was Rs. 50,000/-. The complainant was beneficiary of 100% share to the sum assured.


4. On 12-1-2007 the R1 obtained another proposal form from the deceased Damodhar Reddy for life insurance along with a cheque for Rs. 15,000/- vide cheque No. 162277, dt. 11-1-2007 towards proposal deposit and a receipt dt. 17-1-2007 was issued by Hyderabad branch accepting the proposal. The sum assured was Rs. 1,50,000/- under policy No. 0035971837 commenced from 17-1-2007. The death benefit was Rs. 1,50,000/-. The complainant was nominee as wife of Damodhar Reddy. The respondent company received Rs. 40,000/- and issued three policies i.e. Rs. 1,00,000/-, Rs. 50,000/- and Rs. 1,50,000/- totaling Rs. 3,00,000/- by 18-1-2007. In case of death of the insured the company had to pay Rs. 3,00,000/- to the complainant. The policy holder namely Damodhar Reddy died suddenly on 24-4-2007 due to heart attack in his house. The death intimation was given to R1 and R1 received all relevant documents to settle the claim. On 6-2-2008 the R1 gave Xerox copy of letter dt. 9-7-2007 that the claim was rejected under two police Nos. 0017160745 & 35971837 and said to be refunded the account value under one policy No. 20465750 without receiving any cheque. The reason was the deceased had B.P. and was a Sugar patient and same was not disclosed. It was only to escape the liability.

The respondents received a letter dt. 12-2-2008 from the complainant addressed to the 2nd respondent. The complainant’s husband had no sugar and B.P. at any time. The alleged diseases were not the diseases and it was only created by the respondents to evade payment. Thus the respondents were liable to pay amount to the complainant. The LIC of India had also settled a claim after the death of the husband of the complainant under his policy. Thus the complaint was filed for Rs. 3,00,000/- under three policies with interest @ 24% p.a. from 20-4-2007 till payment jointly and severally and Rs. 1,50,000/- towards compensation for deficiency of service and Rs. 5,000/- towards costs.


5. The respondents filed a counter denying that the policy holder namely Biyyam Damodar Reddy died on account Diabetes Mellitus and Hyper tension (BP) and was suffering from 2003 and he did not reveal in the proposal forms suppressing the material facts. The contract of insurance was utmost good faith on the part of the parties. The assured had to furnish all details of his health condition before taking the policy.

The contract of insurance was entered with the deceased solely on the declaration given in the proposal form dt. 4-3-2006, for the policy No. 0017160745 and another policy No. 0020465750, dt. 9-4-2006 and policy No. 0035971837, dt. 12-1-2007. The assured made himself declared that he was hale and healthy. He suppressed the material particulars in the proposal forms. The complainant suppressed all the material in complaint but simply mentioned that the assured died due to heart attack on 24-2-2007 was not correct. The assured was suffering from B.P. and Diabetes Mellitus since 2003 and was taking treatment from Dr. T. Muniram Prasad at Rotary Homeo Hospital, Proddatur and Dr. G. Prabhakar Reddy, Sujatha Nursing Home, Proddatur and the death was due to the said two diseases suffering from even before commencement of the policy. The policy would have been rejected. The assured would have reveled the facts of his ill health. Thus the claim was repudiated on 9-7-2007. The death due to heart attack was the thinking of the complainant but he died due to complications developed on account of B.P. and Diabetes. It was not correct that the claim was rejected with a view to escape the liability under the policy No. 0020465750. The life assured apart from paying the premium of Rs. 5,000/- and also paid topups of Rs. 10,000/- and that the assured died before next renewal premium.

As such the respondents had refunded the topups amount by way of cheque to the complainant. It was not correct that the LIC of India settled the claim on the death of the assured. There were no policies obtained from LIC of India. In case the LIC of India had committed a mistake it was not necessary that the respondents also should commit mistake. Under Section 45 Insurance Act the company would repudiate the claim within two years commencement of the policy, in case the assured had suppressed the facts both his previous health condition. Therefore, there were no merits and thus the complaint may be dismissed with costs.


6. On the basis of the above pleadings the following points are settled for determination.

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

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

iii. To what relief?

7. On behalf of the complainant Ex. A1 to A12 were marked and PW1 & PW2 were examined. On behalf of the respondents Ex. B1 to B6 were marked. No written arguments were filed by both parties.


8. Point No. 1 & 2 The complainant was the wife of one Biyyam Damodar Reddy, who died on 24-2-2007 at Proddatur. She was examined as PW1. The Xerox copy of the death certificate was Ex. A4. During the life time the deceased Damodar Reddy took three policies and submitted the proposal forms to the respondent mentioning the complainant as his nominee. Ex. A1 is the Xerox copy of proposal from for Rs. 1,00,000/- sum assured under proposal No. 0017160745 on 4-3-2006. The Xerox copy of corresponding policy issued by the respondents was Ex. A10. He took another policy for sum assured Rs. 50,000/- and submitted a proposal form bearing No. 0020465750, dt. 19-4-2006. The Xerox copy of proposal form was Ex. A2 and its corresponding Xerox copy of policy was Ex. A11. The 3rd policy was obtained by the deceased Damodhar Reddy for sum assured for Rs. 1,50,000/- and submitted a proposal form bearing No. 00035971837, dt. 12-1-2007. The Xerox copy of proposal form was Ex. A3 and its corresponding Xerox copy of policy was Ex. A12. So the respondents company issued three policies to the deceased Damodhar Reddy during his life time. By the date of his death on 24-2-2007, the three policies were issued.


9. Subsequent to the death of Damodhar Reddy, due to heart attack at his hosue his wife namely Smt. B. Usha Rani, who was the complainant in the present case as nominee submitted all the relevant documents to the R1 to settle the claim of Rs. 1,00,000/-, Rs. 50,000/- and Rs. 1,50,000/-. But the respondents repudiated the claim for two polices under Ex. A10 & A12 on the ground that the insured Damodhar Reddy did not disclose his previous history of hypertension and diabetes mellitus, in the proposal forms as he was suffering from them since October 2003 and with regard to another policy under Ex. A11 for Rs. 50,000/- the respondents refunded Rs. 10,409/- by way of cheque No. 008312 dt. 14-6-2007.

The Xerox copy of repudiation letter was Ex. A5. The complainant made a request for reconsideration of the claim under three policies but the respondents addressed a letter that a decision would be intimated within a month. The Xerox copy of letter was Ex. A6. The complainant filed Ex. A7 a certificate issued by Sujatha Nursing Home, Proddatur that Damodhar Reddy was brought to the Nurshing Home on 24-2-2007 at 6.00 p.m and by that time he was found dead. The complainant received insurance policy amount of Damohar Reddy from LIC of India of Rs. 1,69,400/-. Ex. A8 was particulars of the claim amount issued by LIC of India Proddatur. Ex. A9 was premium receipt in the name of Damodhar Reddy for the policy under Ex. A10.


10. The respondents filed Ex. B1, B2, B3 the Xerox copies of proposal forms in three policies in the name of Damodhar Reddy. Ex. A1 to A3 and Ex. B3, B2, B1 were one and same. The respondents contended that the deceased died due to hyper tension and Diabetes Mellitus and was suffering since 2003 and failed to disclose in the proposal forms under Ex. A1 to A3. Therefore, the claim of the complainant was repudiated. The said two diseases were common ailments to many people now a days. There was no proof from the respondents that the deceased was suffering from two ailments since 2003. There was no documentary proof. More over the respondents argued that the deceased was undergoing treatment at Rotary Homeopathy Hospital, Proddatur and ffrom Sujatha Nursing Home, Proddatur. Dr. G. Prabhakar Reddy of Sujatha Nursing Home, Proddatur issued a certificate under Ex. A7 that the deceased was not known to him and he never gave treatment at any point of time. Similarly Dr. T. Munirama Prasad, Rotary Homeopathy doctor was examined by the complainant as PW2 because the respondents filed Ex. B5a Xerox copy of case sheet with prescriptions in the name of the deceased Damodhar Reddy to prove that Damodhar Reddy was Diabetic with hypertension and was taking treatment at Rotary Homeo Hospital, Proddatur.

But the PW2 Dr. T. Muniram Prasad, had denied Ex. B5 and also the handwriting in Ex. B5. The PW2 categorically stated that he never treated Damodhar Reddy and he did not know such person mentioned in Ex. B5 and it was not issued by him. Apart from it under Ex. B5 the name of the medicines was 1) Servent, 2) Sweating, 3) Convetre and 4) Diainel. It was argued that there were no such medicines either in Homeopathy or Allopathy. Therefore, the Ex. B5 was created document for the purpose of case by the respondents to avoid the payment of the claim. In addition to it the respondents filed Ex. B4 a Xerox copy of letter addressed by the complainant as PW1. On 8-5-2007 that her husband was addicted to drinking and was in the habit of smoking and he was suffering from hypertension and diabetes. No woman, as wife should not write such type of letter to the insurance company. Even the husband had all worldly vices a wife should not reveal to any person including her parental people. It was the system in Hindu marital life.

11. The PW1 denied Ex. B4. The respondents filed Ex. B6 a Xerox copy of letter issued by Sujatha Nurshing Home, dt. 7-5-2007 that Dr. Prabhakar Reddy treated the deceased, who was suffering from Diabetes and hyper tension. It was the duty of the respondents to examine Dr. G. Prabhakar Reddy, to prove the contents of Ex. B6 when PW1 filed Ex. A7. It was not done so. So there was no proof to Ex. B6. In this case the complainant was examined as PW1, who expressed that at the time of taking the policies her husband was hale and healthy and he never suppressed his diseases in the proposal forms. She denied her signature in Ex. B4 and also the contents. She denied that her husband was addicted to liquor and in the habit of smoking.


12. The respondents refunded Rs. 10,409/- by way of cheque dt. 14-6-2007 under policy No. 0020465750 i.e. Ex. A11. But the respondents had rightly refunded the amount of Rs. 10,409/- with regard to the policy under Ex. A11 because the date of commencement of the policy as per Ex. A11 was dt. 24-4-2006 and the next due date of premium was 24-4-2007. The insured died before payment of the premium on 24-4-2007. Therefore, it was not a concluded contract. The policy Ex. A11 was lapsed for non-payment in view of the death of the insured on 24-2-2007. Therefore, the respondents refunded Rs. 10,409/- by way of cheque as mentioned in Ex. A5. In view of it the complainant is not entitled to any benefit under the policy bearing No. 0020465750 under Ex. A11. The complainant is entitled only for other two policies under Ex. A10 and Ex. A12 totaling Rs. 2,50,000/-. Hence, the points are answered accordingly.



13. Point No. 3 In the result, the complaint is allowed, directing the respondents 1 to 3 jointly and severally liable to pay Rs. 2,50,000/- (Rupees Two lakhs Fifty Thousand Only) without any interest, compensation and costs, payable within 60 days from the date of receipt of this order. The rest of the claim is dismissed.

Smt. Suma B.H.,
W/o Late Dr.Prakash S.Matad,
Aged 32 yeas,
House Wife,
R/o 3136/1, Mallikarjuna Krupa,
9th Main Road, 4th Cross,
M.C.C. “B” Block
Davangere.
( By Sri. M.L.Anjanaya Kumar )

V/s
OPPONENT:
The Divisional Manager,
Bajaj Allianz Life Insurance
Company Limited,.
Divisional Office,
“Mangal Complex”
Door No.82-30 /237 ,
1st floor , Beside Onion Market,
RMC Link Road,
Davangere –577 002.
( Sri.G.K.Suresh Advocate )

:JUDGMENT :

2. The facts of the case in brief are as follows :-

The complainant’s husband Dr. Prakash S.Matad had insured his life with the OP under Bajaj Allianz New Unit Gain Policy bearing No.0023965537 commencing from 26-7-2006 . The date of maturity was 26-7-2039 , the deceased had paid the premium of Rs.25,000/-. Basic benefit was Rs.5,00,000/- i.e. in case of death amount payable was Rs.5,00,000/- . The yearly premium was to be paid on 26th July of every year. Complainant was the nominee .

The 1st policy was issued on 8-8-2006 . The said policy was issued from Pune Office and the OP has branch office carrying on business at Davangere . The complainant husband was doctor by profession and was working at JJM Medical college , Davangere . During December 2006 the complainant’s husband Dr.Prakash was suffering from Seizurer Secondary to Right Hemispheric Mass Lesion Generalized convulsions and local seizures, he was treated by Dr.L.Krishnamurthy Neurologist at City Central Hospital Davanagere . Subsequently Dr. Praksh S.Matad was referred to Manipal Hospital Bangalore for treatment . There it was diagnosed as Right Frontal Opercular Anaplastic Oligoastrocytoma. He was operated on 28-2-2007 and discharged on 6-3-2007 . But again the problem continued and he was admitted to Christian Medical College , Vellore from 24-9-2007 to 2-10-2007 .

Again he could not recover and was diagnosed as suffering from brain tumer malignant and with respiratory problem and was admitted to Bapuji Hospital on 16-3-2008 . But he could not recover and died on 25-3-2008 . The complainant being young lady was deeply shocked . After the death of her husband Dr. Prakash B. Matad she lodged the claim by furnishing all documents with the OP . But the OP by his letter dt:1-9-08 rejected the death claim stating that the premium was due on 26-7-2007 and was not paid within grace period. Hence, the policy was lapsed as on the date of death on 25-3-2008.

The complainant and her family were deeply shocked due to the hospitalization and subsequent death of her husband Dr.Prakash S. Matad . From December 2006 to 25-3-2008 she was constantly looking and nourishing her husband, she did not have the knowledge that her husband had obtained policy from the OP and she did not have the knowledge that the premium was due. The complainant came to know about the policy only after the death of her husband . She immediately lodged the claim with OP by furnishing all the documents. As per the contract of insurance the policy could be revived within 2 years from the date of lapse of the policy. But the non-revival of the policy is not a ground to reject the claim . The rejection of the claim is against contract of insurance and principle of natural justice . under the above said facts and circumstances , the complainant has filed this complaint for the above said relief .

3. In pursuance of statutory notice, the OP entered appearance through its advocate and filed its version contending that :-

The OP has admitted the averments and the allegations made in paras 2 , 3 and 4 .

The OP has contended that the complainant is not aware that she and her family were in deep shock due to the hospitalization and subsequent death of her husband Dr.Prakash S.Matad from December 2006 to 25-03-2008 she was constantly looking and nourishing her husband and she did not have the knowledge that her husband had obtained policy from OP and she did not have the knowledge that the premium was due and the complainant came to know about the policy only after the death of her husband and immediately she lodged the claim with OP by furnishing all the documents . As per the contract of insurance policy could be revived within 2 years from the date of lapse . The case of the complainant that the non-revival of the policy is not a ground to reject the claim cannot be accepted , so also the rejection of the claim is against the contract of insurance and principle of natural justice.

The OP has not admitted for want of knowledge and information expect the fact that submission of death claim from the complainant to this OP . Neither the complainant nor the deceased have paid the 2nd installment of the policy within stipulated time. It is also a fact that they have not revived the policy with in the period of 2 years from the date of lapse unpaid premium if the policy is continuing policy. But it is a settled principle of insurance law that the policy will come to an end , with the death of insurance holder. In this case also the policy holder died and the question of revival of the policy will not arise and the policy will come to an end . With the death of insurance holder. Hence the complaint should be dismissed.

4. The complainant Smt. Suma B.H. has filed her affidavit evidence and she has produced some documents in support of her case as per list. One Paul Rajratnam , the Divisional Manger , Bajaj Allianz Life Insurance Co., Ltd., Davangere has filed his affidavit evidence for and on behalf of OP.

5. We have heard the arguments advanced by both the

parties counsel.

6. Now, the points that arise for consideration of this Forum are as follows:-

i). Whether there is any deficiency in service on the part of

the opponent?

ii) If so, whether the complainant is entitled to the reliefs as sought?

iii) What Order?

7. Our findings on the above points are as follows:-

i) Point No.1: In negative.

ii) Point No.2: As not entitled .

iii) Point No.3: See, as per order below:

for the following:-
REASONS
Points 1 and 2 :-

8. In the instant case one Dr. Prakash S Matad the husband of the complainant and had insured his life with the OP under Bajaj Allianz New Unit Gain Policy bearing No.0023965537 commencing from 26-7-2006 and the date of maturity of the said policy was 26-7-2039 is not dispute .

It is also an admitted fact that the deceased had paid the first premium of Rs.25,000/- and basic benefit was Rs.5,00,000/- i.e. in case of death amount payable was Rs.5,00,000/- and the yearly premium was to be paid on 26th July of every year. It is also not in dispute that the complainant was the nominee and the 1st policy was issued on 8-8-2006 and it was issued by Pune Office and the OP had branch office at Davangere and carrying its business . It is an admitted fact that the complainant’s husband is doctor by profession and was working at J.J.M.Medical College , Davangere . It is not in dispute that during December 2006 the complainant’s husband Dr.Prakash S.Matad was suffering from seizurer secondary to right hemispheric mass lesion generalized convulsions and local seizures.

He was treated by Dr. L.Krishnamurthy, Neurologist at City Central Hospital Davangere and subsequently Dr. Prakash S.Matad was referred to Manipal Hospital , Bangalore for treatment and it was diagnosed as right frontal opercular anaplastic oligoastrocytoma and he was operated on 28-2-2007 and discharged on 6-3-2007 , but again the problem continued and he was admitted to Christian Medical College , Vellore From 24-9-2007 to 2-10-2007 and again he could not recovered and he was diagnosed as suffering from brain tumer malignant and with respiratory problem and was admitted to Bapuji Hospital on 16-3-2008 , but he could not recovered and died on 25-3-2008 . All the above said facts are not in serious disputes and all the above said facts are admitted fact .

9. In support of all the above said facts, the complainant has produced documents . On going through Manipal Hospital Department of Neurosurgery Discharge Summary, it is found that the said Dr.Prakash was admitted to Manipal Hospital on 27-2-2007 and discharged on 6-3-2007 and it was diagnosed in the said hospital as “ RIGHT FRONTAL OPERCULARANAPLASTIC OLIGOASTROCYTOMA”

10. The complainant has produced the CHIRISTIAN MEDCIAL COLLEGE , VELLORE –4 , NEUROSURGERY UNIT II DISCHARGE SUMAMRY . From this document it is found that the Dr. Prakash was admitted to the said hospital on 24-9-2007 and discharged on 2-10-2007 and it was diagnosed in the said hospital as “ RIGHT SUPERIOR TEMPORAL GLIOBLASTOMA MULTIFORME WHO GRADE –IV , KARNOFSKY PERFORMANCE STATUS SCAROE –80”

11. The complainant has produced Manipal Hospital Discharge Summary issued by Department of Medical Oncology , wherein it was diagnosed as “Right fronto temporal Glioblastoma multiforme, progressive disease ( Gliosarcoma) Lower respiratory infection ? respiration .” The complainant has produced the letter dt:28-8-2008 written by the OP. The OP acknowledged that they received the claim form from the complainant for death claim re-imbursement of Dr. Prakash S Matad on 28-3-2008 . There is another acknowledgement for having received the original bond and original death certificate by the OP.

12. The complainant has produced another letter written by the OP to produce the document as detailed in the said letter. The complainant has produced death claim statement of claimant i.e. husband of the deceased . The complainant has produced the Burial /Cremation report dt:26-7-2006 . It is clear from this document that the deceased was buried on 26-3-2008 at 3-00 p.m., .

The complainant has produced the death claim discharge form . The complainant has produced the Employer Certificate . AS per this certificate the deceased joined the serviced on 19-5-99 and the last date of his attending to the said office is 25-3-2008 and he died on 25-3-2008 . It is no-where mentioned in this document that the deceased was paying premium out of his salary or obtained policy under the Salary Deduction Scheme. The complainant has produced the leave particulars . The complainant has produced the Certificate issued by Usual /family doctor . Dr.L. Krishna Murthy , Neurologist . The complainant has produced the other documents . From the above said documents it is clear that the husband of complainant admitted to hospital during December 2006 and took treatment in various hospital and at last it was diagnosed by vellore Hospital that he was suffering from Brain Tumer and respiratory problem and ultimately died on 25-3-2008 .

13. In this case only the 1st premium of Rs.25,000/- was paid by the deceased. The maturity date of the said policy was 26-7-2039 and the said policy was valid from 26-7-2006 and the yearly premium was to be paid 26th July of every year . It is not in dispute that the deceased was under treatment with effect from December 2006 , till 16-3-2008 and ultimately he died on 25-3-2008 . According to the complainant that the complainant submitted the claim by furnishing all the documents with the OP and the OP by his letter dt:1-9-2008 rejected the death claim on the ground that the premium was due on 26-7-2007 and was not paid within grace period. Hence the policy was lapsed as on the date of death on 25-3-2008 .

14. Of course the complainant has assigned the reason for having not paid yearly premium on or before 26-7-2007 or by her husband Dr.Prakash . According to the complainant that due to the death of her husband , the complainant and her family members were in deep shock due to hospitalization and subsequent death of Dr. Prakash and from December 2006 to 25-3-2008 , the complainant has constantly looking and nourishing her husband and she did not have the knowledge that her husband had obtained policy from OP and she did not have the knowledge that the premium was due and the complainant came to know about the policy only after the death of her husband . According to the complainant that as per contract of insurance, the policy could be revived within 2 years from the date of lapse . But the non-revival of the policy is not a ground to reject the claim . The rejection of the claim is against contract of insurance and principle of natural justice .

15. In support of his arguments, the learned counsel for complainant has submitted referring to the order passed by our Hon’ble National Consumer Disputes Redressal Commission , Circuit Bench , Karnataka at Bangalore dt: 13-12-2006 in Revision Petition NO.495/2005 . As we have already stated above that the policy taken by the deceased was not a Salary Deduction Policy or the said Policy was issued under Salary Saving Scheme. In the above said decision relied on by the learned counsel for complainant , the deceased died in road accident and he expired in April 2001 and on his death, he complainant demanded the sum assured as per the policy and the same was refused on the ground that the premium was not regularly remitted by the department in which the deceased was working .

Hence the mother of the deceased ( Respondent no-1- complainant ) and his daughter-in-law ( wife of the deceased) approached the District Forum, Chitradurga and the District Forum by common judgment and order dated:5th August 2003 dismissed the complaints by holding that the deceased was negligent in not getting the premium deducted from his salary for some time and hence the premium lapsed due to non-payment of premium for which the assured was solely liable . Against the order of the District Forum Respondent No-1 preferred Appeal No.998/2003 before the Hon’ble State Commission and the appeal was allowed by the Hon’ble State Commission by its judgment and order dt:3-11-2004 wherein the Hon’ble State Commission directed the LIC to pay the amount due under the policies with all the benefits with interest at the rate of 9 % pa., from the date of complaint till the date of realization.

16. In the above said order our Hon’ble National Commission referring to the decision of Apex Court in DESU Vs.m Basanti Devi (1999) 8 SCC 229) and reaffirmed by the Apex Court in Chairman Life Insurance Corporation Vs. Rajiv Kumar Bhasker, (2005 ) 6 SCC 188 = AIR 2005 SCW 636 . Wherein it is observed that :-

o Before referring to the judgments of the Supreme Court , we would reproduced the ‘Salary Savings Scheme Endorsement ‘ ( (endorsement on the policy ) which is part of the policy No.623981644 , which reads thus :-

“ This policy having been issued under the Corporation’s Salary Savings Scheme, it is hereby declared that the instalment premium shall be payable at the rate shown in the schedule of the policy so long only as the Life Assured continues to be an Employee of his present Employer whose name is stated in the proposal , and the premiums are collected by the said employer out of the salary of the employee and remitted to the Corporation without any charges .

In the event of the Life Assured leaving the employment of the said Employer or the premium ceasing to be so collected and /or remitted to the Corporation , the Life Assured must intimate the fact to the Corporation and in the event of Salary Savings Scheme being withdrawn from the said Employer , the Corporation shall intimate the fact to the Life Assured and all premiums falling due on and after the date of his leaving the employment of the said employer or cessation of collection of the premiums and remittance thereof in the manner aforesaid or withdrawal of the Salary Saving Scheme as the case may be shall stand increased by the imposition of the additional charge for monthly payment that has been waived under the Salary Savings Scheme at five percent of the premium exclusive of any premium charged for Accident Benefit and other extra premium charged “.

17. In the instant case , the policy taken by the deceased was under the Salary Saving Scheme. In the above said decision there was declaration to the effect that the installment premium shall be payable at the rate shown in the schedule of the policy so long, only as the life assured continues to be an employee of his present employer whose name is stated in the proposal and the premiums are collected by the said employer out of the salary of the employee and remitted to the Corporation without any charges.

18. Admittedly, the policy issued by the OP is not issued under Salary Saving Scheme , but the said policy was taken by the deceased on payment of premium on yearly basis . Keeping in view , the nature of the policy issued in the above cited decision and the nature of the policy issued in the instant case are entirely different. When the policy was in a lapsed conditions, the deceased was very much available. Nothing prevented the deceased to pay the second year premium of the policy i.e., the premium on or before 26-7-2007 because he died on 25-3-2008. Even the deceased had not paid the premium within the grace period of 30 days. Even the deceased has not taken any steps before his death on 25-3-2008 to revive the policy.

19. Under the above said circumstances , the repudiation of the claim made by the OP is in accordance with the terms and conditions of the policy. The complainant has produced the letter written by the OP to the complainant which reads thus :-

“We deeply regret the sad demise of Late Mr.Prakash S.Matada. Kindly accept our sincere heartfelt condolences .

The above said death claim is not admissible because the premium due on 26-07-2007 was not paid within grace period of one month i.e. till 25-08-2007 . Hence the policy was in lapsed condition as on date of death i.e. 25-03-2008”

As a result the claim has been rejected as Non Admissible due to lapse status of policy.”

20. As we have already sated above that the premium was due on 26-7-2007. The deceased died on 25-3-2008 . Neither the complainant nor her husband have not paid the premium within the grace period of one month i.e. till 25-8-2007 and the policy was in lapsed condition as on the date of death of the deceased on 25-3-2008 . Under the above said circumstances , the OP rejected the claim. There is no any illegality in rejection of the claim made by the complainant . Under the above said circumstances , the judgment/order passed by our Hon’ble National Consumer Disputes Redressal Commission , Circuit Bench , Karnataka at Bangalore dt:13-2-2006 in Revision Petition NO.495/2005 is not aptly applicable to the facts of the present case.

21. We have gone through the written arguments submitted by the counsel for complainant that the non-revival of the policy is not a ground to reject the claim and rejection of the claim is against contract of insurance and principle of natural justice cannot be accepted. The deceased assured had not taken any steps to revive the policy , because the deceased himself allowed the policy to lapse and has not revived the policy during his life time and the OP rightly rejected the claim made by the wife of the deceased. Therefore the act of the OP would not amount to deficiency in service . In order to pay the premium a grace period of one month but not less than 30 days will be allowed for payment of yearly , half yearly or quarterly premium and 15 days for monthly premium. In case of revival of discontinued polices , if the policy is lapsed it may be revived during the life time of life assured , but within a period of 5 years , that right is given to the deceased/assured only , not to the heirs of the deceased.

22. It is clear from the preposition of law laid down in (I) 1992 CPJ 128 NC that (a) the “revival could only be during the life time of the assured and not after his death.(b) within a period of 5 years from the due date of 1st unpaid premium. (c) before the date of maturity .(d) and the conditions relating to the payment of the premium due on the lapsed policy should be complied with”. Therefore the revival of the lapsed policy could not have been claimed by the complainant as of right . The complainant herself is a nominee to the said policy . Nothing prevented the deceased insured to pay 2nd premium before the due date and on or before grace period and for revival of the policy after the grace period during his life time . Because he died subsequently.

23. Under above said facts and circumstances, we have no hesitation to hold that there is no any deficiency of service on the part of the OP . We have gone through all the documents, affidavit evidence of both parties and written arguments filed by the complainant. We have no hesitation to hold that the rejection of the claim made by the complainant is in accordance with law. Further the complainant has failed to establish any deficiency in service on the part of the OP. Accordingly we answer point no.1 in negative, point no.2 as not entitled.

Point No.3 :

24. In view of our findings on the points 1 and 2, the complaint filed by the complainant against the OP has to be dismissed. In the result we pass the following order :-

:ORDER:

The complaint filed by the complainant against the OP is hereby dismissed.

Smt. Rita Mahato.

W/o.:Jatin Mahato.

Vill.: Cheail.

P.O.:Teor, P.S. :Balurghat,

Dist. Dakshin Dinajpur …………………………Complainant


V-E-R-S-U-S

1.

The Branch Manager,

Bajaj Allianz Life Insurance Co. Ltd.,

Branch Office -Kol, G & A.; Macmet House,4th Floor,

10-B, O.C. Ganguli Sarani, Kolkata-700020.

2.

Branch Manager,

Bajaj Allianz Life Insurance Co. Ltd., Branch Office-Balurghat

House of Bablu Kundu (1st Floor),

Opposite of Town Club - Market,

PS.: Balurghat,

Dist. Dakshin Dinajpur ………………………Opposite Party(s)

Judgement & Order dt. 29.07.2009


Instant CC case bases upon a complaint u/s 12 C.P. Act brought by the complainant Smt. Rita Mahato on 20.4.2009 against the OPs who are, in fact, two officials of Bajaj Allianz Life Insurance Co. Ltd., alleging deficiency in service.

Complainant’s case as made out in the said complaint, in brief, is that she took from the Bajaj Allianz Life Insurance Co. Ltd. a policy bearing Policy No.0008058902. Basic sum assured under the policy is Rs.1,00,000/-. Date of the commencement of the policy was 7.3.2005 and the policy term is 15 years. As per the conditions of the policy 10% of basic sum assured i.e. Rs.10,000/- was payable to the complainant after the expiry of a period of three years from the date of commencement as the first survival benefit. Despite regular payment of insurance premia the said benefit was not paid to the complainant. Demand for payment of the said benefit laid by the complainant through her Advocate’s letter on 9.1.2009 proved abortive. In such premises the complainant brought the complaint praying for obtaining the payment of Rs.10,000/- as the first survival benefit, interest thereon @ 15% p.a. compensation of Rs.2,000/- and the costs of this proceeding.


The proceeding has been contested by the both the OPs. In fact, OP 2 – the Branch Manager, Balurghat Br. of the OP Ins. Co. presented a w.v. on 2.7.2009. Branch Manager, Kolkata Branch – the OP 1 under an application dt. 2.7.2009 adopted the said w.v. presented by the OP 2.


It has been the case of the OPs that after the expiry of a period of three years since the date of commencement of the policy the Ins. Co. issued an A/c payee cheque bearing No.037666 dt. 7.3.2008 for an amount of Rs.10,000/- favouring the complainant Rita Mahato and drawn on UTI Bank now known as Axis Bank. Following service of Lawyer’s notice issued from end of the complainant and the summons of this proceeding, the OP Ins. Co. enquired over the matter and was informed from the Axis Bank, Balurghat Branch that the concerned cheque had been encashed through the Indian Bank, Balurghat Branch. In response to the query made over the matter the Indian Bank Balurghat Branch under their letter dt.27.6.2009 informed the OPs that one Rita Mahato of Cheail had deposited the cheque in their bank and that such cheque had been cleared on 8.3.2008. As the Ins. Co. issued the cheque in the name of the complainant and the cheque was got encashed, the Ins. Co. cannot be said to be deficient in service and so the complaint warrants dismissal.


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

1.

Was there deficiency in service on the part of OP Ins. Co.?
2.

Is the complainant is entitled to the reliefs sought for by her?


Decision with reasons:

The complainant in support of her case examined herself as PW-1 and brought on record the original policy deed as Ext.1. She also annexed to her POC, amongst others, copies of two receipts of payment of premium as also the copy of her Advocate’s letter demanding payment of the benefit.


OPs, on the other hand, examined none but brought on record the copies of the cheque stated to have been issued by them towards the first survival benefit as Ext.-B and a certificate issued from the Indian Bank as to the clearing of the cheque as Ext.-A.


No other evidence was adduced in the case.

Let us now enter into the determination on the two points formulated above.

Point No.1

The policy deed brought on record by the complainant as Ext.1 purports that 10% of the basic sum assured i.e. an amount of Rs.10,000/- was due to be paid to the complainant after the completion of three years from the date of commencement of the policy as the first survival benefit. It is not in dispute in this case that the said amount of Rs.10,000/- was payable to the complainant on 7.3.2008. It has been the case of the OPs that they issued an A/c payee cheque for the said amount of Rs.10,000/- on 7.3.2008 favouring the complainant – Smt. Rita Mahato and that such cheque was ultimately encashed through Indian Bank, Balurghat Branch.


In the certificate dt. 27.6.2009 issued from the Balurghat Br. of Indian Bank brought on record by the OPs as Ext.-A it has been certified that one Mrs. Rita Mahato of village Cheail presented in the Balurghat Br. of Indian Bank a cheque bearing No.037666 dt. 7.3.2008 for an amount of Rs.10,000/- drawn on UTI Bank and that such cheque was later cleared on 8.3.2009.


The complainant Rita Mahato in course of her examination before the Forum as PW-1 stated that she does not have any A/c in the said Balurghat Br. of Indian Bank and further that in their village Cheail there has been another woman by the name of Rita Mahato.


Ld. Counsel appearing for the complainant urged that since it has been the case of the complainant that Ins. Co. has not paid the said survival benefit to her and since it has been testified by the complainant during her examination as PW-1 that she does not have any A/c in the said Balurghat Br. of Indian Bank and further that in their village Cheail there has been another woman by the name of Rita Mahato, the OPs were under an obligation to produce before this Forum the receipt as to the delivery of the cheque to show that the endorsement as to the receipt of the cheque was made on behalf of the complainant Rita Mahato and of none else. It was urged by him that since the OPs did not cause production of such endorsement as to the delivery of the cheque complainant’s testimony as to her not having received payment of the benefit has to be accepted to be true.


Bold contention advanced by the Ld. Counsel for the OPs, on the other hand, was that even though the complainant during her examination claimed that there has been another Rita Mahato in her village, she has neither examined such other Rita Mahato as a witness in this case nor has produced before this Forum any certificate issued from the Balurghat Branch of Indian Bank to the effect that she does not have any A/c in the said bank and that in the situation it should be inferred that the complainant herself got the cheque encashed.


We have carefully gone through the pleadings and evidence on record and have taken into consideration the said submissions advanced on behalf of the sides. We note that from the side of the OPs a suggestion was given to the complainant in course of her cross examination that she actually received the cheque issued from the Ins. Co. Such suggestion has been denied by the complainant. Despites such denial by the complainant, the OPs did not bring on record any documentary or other evidence to show that the said cheque had actually been delivered to the complainant. In fact, the OPs though stated in their w.v. that they issued an A/c payee cheqye in favour of the complainant, they are silent as to the manner in which such cheque was actually transmitted or delivered to the complainant. Such being the situation, here there is hardly any ground for disbelieving the claim of the complainant that she did not actually receive the cheque issued from the Ins. Co.


The complainant’s testimony that in their village Cheail there has been another woman by the name of Rita Mahato who happens to be the wife of one Nakul Mahato does not appear to have been challenged from sides of the OPs in course of their cross examination. Rather, from side of the OPs a suggestion was given to the complainant suggesting that the complainant got the cheque encashed having been in collusion with the said other Rita Mahato. It can, therefore, be inferred safely that in the village Cheail in which the complainant has her residence, there has been yet another woman by the name of Rita Mahato who happens to be the wife of one Nakul Mahato.


Consideration of the attending circumstances does not persuade us to view that the complainant was under an obligation to examine the said other Rita Mahato wife of Nakul Mahato as a witness from her side to prove that such other Rita Mahato wife of Nakul Mahato is or was also an inhabitant of village Cheail .


The OPs brought on record as Ext.-A – a certificate issued from Balurghat Br. of Indian Bank to show that the cheque was actually got encashed on 8.3.2008 through such bank by one Rita Mahato of village Cheail. But the Savings Bank A/c opening card enclosed to the said certificate goes to show that Rita Mahato by whom the cheque was got encashed was a person remaining under the care of one Nakul Mahato who, it has been testified by the complainant, has been her neighbour. As the certificate as Ext.-A goes to show the cheque was got encashed by “Rita Mahato C/o Nakul Mahato”, it should hardly be regarded that the cheque was encashed by the complainant Rita Mahato.


From the side of the OPs it was also suggested to the complainant during her cross examination that she got the cheque encashed having been in collusion with the said other Rita Mahato of village Cheail. Such suggestion has been denied. We have already observed that from the side of the OPs no documentary or other evidence has been brought on record to show that the cheque was actually delivered to the complainant. Under such situation we can very well accept the claim of the complainant that she had not got the cheque encashed either by herself or by her having been in collusion with the said other Rita Mahato wife of Nakul Mahato.


In the case of Unit Trust of India and Ors – vs- Kelki Devi and Ors reported in 1986 – 2007 Consumer 12120 (NC) Hon’ble National Commission while deciding a Revision Petition found that the Rev. Petnr. – UTI had issued an A/c payee cheque in the name of the husband of the respondent Kelki Devi and sent the said cheque through registered post towards payment of the maturity amount respecting a number of units of GMIS which had been purchased by the said Smt. Kelki Devi jointly with her husband. The A/D card respecting of the concerned registered postal articles was not received back at the end of the Rev. Petnr. Such cheque was later found to have been encashed through the Respondent No.2- Bank. Rev. Petnr. lodged FIR alleging fraudulent encashment of the cheque by the Respondent No.2 - Bank and Postmaster.

The complaint brought before the District Forum by the said Smt. Kelki Devi was allowed directing the Rev. Petnr.- UTI to pay to Kelki Devi the said maturity amount, interest, compensation and costs. Revision Petitioner’s appeal before the Hon’ble State Commission was allowed in part deleting only the compensation and confirming the rest of the order of the District Forum. The Revision Petition before the Hon’ble National Commission against that the order of the State Commission was allowed only effecting a reduction in rate of interest and confirming the rest of the order of the State Commission. In that case in the back drop of situation virtually similar to that in the case in hand before us, the Hon’ble National Commission recorded in Paragraph-5 of the judgment an observation which goes as under.


“*** We heard both the parties and after perusing all the records and the orders passed by the lower Fora we find the arguments of the petitioners that they have no liability to pay is unacceptable by us. We find that the respondent – original complainant cannot be made to suffer on the lapses on the part of erring Opposite Parties – Unit Trust of India or Post Office or Bank, whether the cheques are lost during transit or they are encashed fraudulently by the Bank in collusion with some person, it is not the concern of the consumer to go after all these agencies to get their rightful money ***”.


The Hon’ble National Commission further went on to observe thereafter that the consumer would not suffer for the wrong encashment / fraud committed in the Bank.


Here in this case we have found that even though the OP Ins. Co. issued a cheque for the amount of benefit in the name of complainant – Rita Mahato such cheque was neither received by the complainant nor was got encashed by her (either by herself or by her having been in collusion with some other person). Such being the situation having kept in view the aforesaid decision of the Hon’ble National Commission, we think, bare issuance of the cheque by the OP Ins. Co. or the encashment of such cheque by some other person would not relieve the OP- Ins. Co. from the obligation of making payment to her the survival benefit. The failure on the part of OP Ins. Co. in making payment to the complainant the amount of benefit has to be regarded to have been a deficiency in service on the part of OPs.


We thus decide this Point No.1 in the affirmative holding that there has been deficiency in service on the part of OPs.

Point No.2

In view of our above determination on Point No.1 the complainant is entitled to get an amount of Rs.10,000/- being the amount of 1st survival benefit under the concerned Ins. policy.


Date of commencement of the policy was 7.3.2005. It is virtually not in dispute that the said survival benefit became payable on 7.3.2008. From a consideration of the attendant circumstances, we do not deem it proper to allow any amount as compensation but think it proper to allow the complainant to be paid interest @ 12% p.a. over the said amount of Rs,10,000/- w.e.f. 7.3.2008 and a sum of Rs.1,000/- as costs of this proceeding. Point No.2 is thus decided.


In the result the complaint succeeds in part.

It appears from the case record that the notice of this proceeding meant for the OPs were issued on 4.5.2009. Instant complaint is thus getting disposed of within the period of three months since issuance of notice to the OPs.

Under the circumstances, it is.


O R D E R E D


That the instant Consumer Complaint Case stands allowed in part on contest.

The OPs shall pay to the complainant within a period of 45 days from the service of copy of this order upon them a sum of Rs.10,000/- (Rs. Ten thousand) only towards the 1st survival benefit respecting the policy No.0008058902, interest thereon w.e.f. 7.3.2008 till actual payment @ Rs.12% p.a. and a sum of Rs.1,000/- (Rs. One thousand) only as costs of this proceeding.

In the event of non-compliance of this order or any part thereof, the complainant shall have the liberty to apply for putting such order in execution in accordance with law.

Amrit Pal Singh son of Sh. Iqbal Singh r/o village Jhorrna, Tehsil Raikot, District Ludhiana.
…..Complainant.
Versus

1- Bajaj Allianz General Insurance Company Limited, having its office at Feroze Gandhi Market, Ludhiana, through its General Manager.

2- Bajaj Allianz General Insurance Company Limited, having its Claim Department at SCF-11, Phase-3B2, Mohali, through its General Manager.

3- Bajaj Allianz General Insurance Company Limited, SCO-139-140, Sector-8C, Ist Floor, Chandigarh, through its General Manager.

4- Bajaj Allianz General Insurance Company Limited, having its Regd. Office at G.E. Plaza, Airport Road, Yerawada, Pune, through its Managing Director. ….Opposite parties.

O R D E R

1- In the present complaint under section 12 of the Consumer Protection Act, 1986, complainant has sought insurance amount of his Skoda Octavia car bearing registration no.PB-65D-0003 from the opposite party, which was insured with them, vide cover note dated 9.5.2007 and valid upto 8.5.2 007. He claimed insured value of the vehicle Rs.8.90 lacs and had paid insurance premium of Rs.29,661/-. The vehicle was taken by his friend Sh. Malik Singh s/o Sh. Jaimal Singh resident of Yamuna Nagar, Haryana, and on the night of 14.1.2008, the said vehicle caught fire, damaging the same in entirety. Intimation was given to SHO, P.S. Jagadhari and manager of HDFC Bank, Ludhiana, with whose finance, the vehicle was purchased, as well as to the opposite party. Opposite party then appointed surveyor, who sought documents which were made available alongwith original key, but the claim so lodged, despite repeated requests, wasn’t cleared. Such act on part of opposite party, claimed amounting to deficiency in service and claimed insurance amount of Rs.8.90 lacs alongwith Rs.95000/- compensation.

2- Opposite party contested the complaint, by disputing entitlement of the complainant for any damage to the car. However, obtaining insurance policy qua his car by the complainant, is admitted alongwith lodging claim and that the same was repudiated validly and legally vide letter dated 17.3.2008, on ground of non submission of necessary documents and information and due to non-cooperation of the complainant. So, claimed that there is no deficiency in service on their part. Claim of the complainant was registered, entertained and processed, by appointing M/s Bee Vee Investigation Agencies, as investigator to investigate fire claim of the complainant.

Said investigator wrote letter dated 2.2.2008 to the complainant, but he failed to furnish requisite documents or reply the same. The investigator made thorough investigation, prepared report dated 1.3.2008, intimating that entire incidence of loss is doubtful. Complainant failed to produce documents sought vide letters dated 31.1.2008, 19.2.2008, 29.2.2008. Doubtful story qua fire is made. The vehicle remained un-attended for 5-6 days at Jagadhari and was found burnt by the police on 16.1.2008. As such, complainant violated terms and conditions of the policy, by keeping the vehicle un-attended and stranded on the roadside for 5-6 days. No FIR qua fire was lodged by the complainant or his friend. The complainant has made false declaration. Therefore, in these circumstances, claim was rightfully and legally repudiated.

3- Both parties in support of their respective pleadings, adduced evidence by way of affidavit and documents. Stood heard through their respective counsels and record perused carefully.

4- Sh. Amrit Pal Singh complainant addressed letter dated 18th January, 2008 Ex.CW1/C to SHO, P.S. Jagadhari. He claimed in the letter that about damage to his car in fire on 14.1.2008, was intimated by his friend Malak Singh telephonically. Claim form Ex.R9 of the complainant, contain brief reference how the insured car was damaged due to fire. According to the complainant, his friend Sh. Malik Singh intimated telephonically, taking car to Pounta Sahib and when coming back reached Sector-18, Jagadhari, during night, the car suddenly caught fire. So, the first version of the complainant given to opposite party in the claim form Ex.R9 was that his friend Malik Singh was driving the car, while returning from Pounta Sahib and during night, it caught fire.

5- Whereas, Ex.R12 is the communication dated 12.1.2008, addressed by Sh. Malik Singh to SHO, P.S. Jagadhari. He in that communication, informed the SHO that on 10.1.2008, the car went out of order and he would get it repaired and would be responsible for the car.

6- After the car caught fire, no formal FIR was lodged by the complainant himself or his friend Malik Singh. Rather, police of their own on 18.1.2008, recorded FIR bearing no.20 dated 18.1.2008 in P.S. Jagadhari, copy of which is Ex.R13. It is made out from the FIR that Malik Singh on 11.1.2008, had filed an application against Pradeep and others qua damaging car no.PB-65-0003(present insured vehicle), qua which, Rapat no.20 was entered. Police officer for inquiry of that Rapat, went to Sector-18 of Housing Board, HUDA, Jagadhari and found the car parked on the roadside, but not damaged. Then Malik Singh was required to take the car from the spot, who told that it was out of order and after getting it repaired, would remove the same. It was further recorded in FIR that on 16.1.2008, came to know that car got burnt, but Malik Singh never came to lodge report regarding burning of the car.

7- This FIR Ex.R13 alongwith letter Ex.R12 of Malik Singh, belies allegations of the complainant, contained in claim form Ex.R9 that while Malik Singh on 14.1.2008, was coming on the car from Pounta Sahib, during night, it suddenly caught fire. This plea appears to be after thought. Surveyor engaged by the opposite party, in his report Ex.R1, has also doubted authenticity of the story, due to such aspect. He during his investigation, had recorded statement Ex.R6 of one Meena Kumari resident of Sector-18, Jagadhari. As per her statement also, the car (in question) since 5-6 days, was parked on side of the road, due to technical defect. On one morning, found the car fully burnt.

8- Aforesaid material shows that the car since 5-6 days, was kept on roadside due to mechanical fault and suddenly on the night of 14.1.2008, it caught fire. But it is not true in these circumstances that while Malik Singh was driving the car from Pounta Sahib, it caught fire on the night of 14.1.2008. No doubt, surveyor also found the car to be damaged by fire. But circumstances under which, it got damaged due to fire, stand highlighted and disputed by him. As per his conclusion, the car remained un-attended for 5-6 days at Sector-18, Jagadhari, which was found burnt by the police on 16.1.2008. Though, Malik Singh vide his letter dated 12.1.2008 Ex.R12, informed the police that he himself would be responsible for the car which had developed mechanical defect.

9- Also as per report of the surveyor Ex.R1, it appears that house of Malik Singh, is at crowded place and is a man of shaddy character, who has spent two years in Tihar Jail and there were other vehicles such as 3 burnt motor cycles parked in the compound of his house, photograph of which Ex.R14 was taken by him.

10- In such scenario, he inferred that in order to grab insurance money, the vehicle was intentionally damaged by fire, when failed to pay loan installments of the vehicle.

11- The car also remained un-attended and un-cared at roadside for 5-6 days and no proper care thereof was taken, either by the insured or his friend Malik Singh. It means they breached terms and conditions of the insurance policy of the car, by not taking its proper care.

12- Moreover in the instant case, opposite party and their surveyor had called upon the complainant, to furnish certain information and supply documents, but he failed to comply therewith. Letter Ex.R7 dated 14.2.2008, Ex.R28 dated 19.2.2008 and Ex.R27 dated 29.2.2008, were sent by investigator to the complainant and consequently, on his failure to furnish documents and supply information, claim was repudiated vide letter Ex.R26 dated 17th March, 2008.

13- In these circumstances of the case, it appears that story leading to damage of the car in fire, is having two aspects. Firstly, it was alleged that the car suddenly caught fire, when was being driven by Malik Singh on 14.1.2008. Whereas, evidence goes to show contrary that car was parked on roadside in Sector-18, Jagadhari, due to defect since 5-6 days. Earlier, Malik Singh had alleged damage to the car, by certain persons, which allegations are found incorrect by the police. No proper care of the car was taken which would be in violation of the policy.

No doubt, car has been damaged in fire. Whether such fire was accidental, intentional or deliberate by the insured or his friend, need to be probed deeply. Which probe may not be possible in summary inquiry like this. Because witnesses on such point, deserve to be examined, cross examined, in order to separate grass from the grains. Therefore, without deciding this complaint in summary way, we relegate the matter to be decided by the civil court of competent jurisdiction.

Pentakota Shyamala, D/o Late Pentakota Govinda Rao, Hindu, aged 25 years, R/o D.No.4-49-2, Narayanapuram, Rambilli Mandal, Visakhapatnam Dist..

… Complainant

1. M/s Bajaj Allianz General Insurance Co. Ltd., rep. by its Branch Manager, 2nd Floor, D.No.47-10-21/12, 2nd Floor, Isnar Plaza, Dwarakanagar, Visakhapatnam - 16.

2. M/s Bajaj Allianz General Insurance Co. Ltd., rep. by its Managing Director, GE Plaza, Airport Road, Yerwada, Pune-6.

... Opposite Parties

: O R D E R :

1. The facts of the complaint are, the complainant is daughter of one Pentakota Govinda Rao, who has taken an Accident Insurance Policy from the opposite parties on 29-10-2005 with one year validity. The sum assured was Rs.2,00,000/-. It is pleaded that on 19-05-2006, the said P.Govinda Rao had snake bite in his fields and he was shifted to nearby hospital, where he was advised to shift to King George Hospital, Visakhapatnam for the better treatment.

There at the King George Hospital, he was treated in emergency ward and on the advise of the doctor, said P.Govinda Rao, was brought back home, where he died on the very next day i.e., 20-05-2006. As the death occurred at her house, no case was registered and no postmortem was conducted. The death certificate was issued by Gram Panchayat. The complainant submitted the claim form on 16-11-2006, which was repudiated on 15-01-2007, on the ground that “death from accident cannot be proved beyond doubt.”

This repudiation by the opposite party is unjust and invented to avoid payment of claim amount. Thus conduct of opposite party amounted to deficiency in service and breach of agreement and hence this complaint for payment of policy amount of Rs.2,00,000/-, with interest @ 24% from 16-11-2006, when the claim was preferred; Rs.25,000/- towards damage for mental agony and another Rs.25,000/- as compensation for breach of agreement.

2. The opposite parties resisted the claim by filing the counter pleading that death certificate issued by the Gram Panchayat did not establish the cause of the death of the insured. The treatment record of the insured, in the absence of the MLC notice on the OP chit as well as MLC is not registered, though treated in Government hospital do prove that the claim is false and concocted. It is mandatory that the accidental death or un-natural occurrence should be supported by copy of the FIR and Postmortem report, in the absence of the above two documents, claim cannot be processed.

Though the death occurred on 20-05-2006, the insured was informed only on 16-11-2006 and this long gap show that the death was a natural one. It is only an after thought to make a false claim. The complainant did not furnish the relevant papers for processing the claim, for these reasons the claim was repudiated and there is no deficiency in service. Moreover the hospital authorities during investigation by the investigator, categorically stated that the OP Chit was not issued by them. The complainant is not a consumer. For these reasons the complaint is liable to be dismissed.

3. At the time of enquiry both the parties filed affidavits in support of the respective contentions. Ex.A.1 to Ex.A.4 and Ex.B.1 & Ex.B.2 are marked.

4. The opposite party further examined the hospital Superintendent of King George Hospital, Visakhapatnam on commission. Both the counsels were heard, who reiterated their respective contentions.

5. In view of the pleadings and contentions raised at the time of argument, the point that would arise for determination is:

Whether the death of the insured was accidental one and repudiation of the claim by the Insurance Company amounted to deficiency in service, if so whether the complainant is entitled for the claim made?

6. In this claim by the Daughter/nominee of the Ex.A.1 policy issued in the name of Pentakota Govinda Rao of Narayanapuram, the death alleged to be due to snake bite, was on 19-05-2006, while the policy was in force. The death occurred at home of the deceased. The complainant relied upon Ex.A.2 OP chit dated 19-05-2006.

Apart from the fact there is no other record to show that the deceased was rendered first aid in a nearby hospital and the Doctor therein advised him to shift to King George Hospital, Visakhapatnam, Ex.A.2 OP Chit purported to be given by KGH, Visakhapatnam, is the bone of controversy between the parties as to its genuineness.

7. Ex.A.2 bears serial No.41106 dated 19-05-2006 and the time was mentioned as 11.00am. It contains some note by the Doctor, who was said to have seen him and the complaint was said to be snake bite. The complainant failed to either examine the Doctor, who issued this OP Chit nor even filed his affidavit to prove it.

On the other hand the opposite parties examined the Superintendent of King George Hospital, on commission, who asserted in his evidence that this OP Chit, Ex.A.2 with serial No.41106 dated 19-05-2006 was not shown in the OP Register, the extract of which is Ex.B.2. His evidence would further show that on that day, the OP register started from S.No.152396 and ended at 152878.

He asserted that their record did not show the OP number as well as the name of the deceased in their register. Consequently he asserted that this Ex.A.2 was not issued by their hospital authorities and he even went to an extent of stating that it is signed by unknown individual. Though he admitted that the OP register extract, Ex.B.2 does not show serial numbers correctly and there were gaps, which fact was laid much stress upon by the counsels for the complainant, it is quite evident that the serial number was obviously in seriatim not maintained as on the same day there will be another register for female patients.

Above all, the serial number on Ex.A.2 is 41106, whereas the serial number in the OP chit dated 19-05-2006, Ex.B.1 commenced with 152396 and ended with 152878. While that register has six digit serial number, Ex.A.2 is only 5 digit serial number. Thus this evidence of the Superintendent of King George Hospital, Visakhapatnam, itself disproves the Ex.A.2 OPChit, the sole record relied upon by the counsel for the complainant.

In the absence of any proof that the death was un-natural, namely snake bite in this case, the opposite parties rightly repudiated the claim. Hence we do not find any deficiency in service on the part of the opposite parties, which is acting as per the terms of the policy and rules and regulations of the Company. Accordingly this point is answered against the complainant.

8. In the result, complaint is dismissed. Each party is directed to bear their own costs. Advocate fee Rs.2,000/- (Rupees two thousand only)

Smt.Sumitra D.Poojary,

Aged about 32 years,

W/o Late Dinesh S.Poojary,

Residing at “Shivagiri House”,

Kumragodu Village and Post,

Brahmavara,

Udupi Taluk and District.







Versus



1. Managing Director,

Bajaj Allianz Life Insurance Co. Ltd.,

G.E.P:laza, Airport Road,

Yerawada, Pune – 411006.



2. Bajaj Allianz Life Insurance,

Raj Towers,

Near City Bus Stand, Udupi.




1. The Complainant filed this complaint u/s 12 of CPA alleging Unfair Trade Practice which inturn amounts to deficiency in service and prayed for a direction to Opposite Parties to pay a sum of Rs.4,08,000/- + the fund value of the Complainant with interest at 12% per annum and Rs.90,000/- towards the mental agony and harassment undergone by the Complainant plus cost of the proceedings..



2. The case of the Complainant is that her husband Dinesh S.Poojary when he was alive had invested Rs.12,000/- in the “Bajaj Allianz New Family Gain” Non participating Unit Linked Plan promoted by the Opposite Parties on 3.3.2008. It is a Unit Linked Endowment (Regular Premium type of product). As per the said plan the Opposite Parties have promised to spend the 30% of the amount received in the equity and rest of the amount would be invested in other bonds in the 1st year. After the 1st year 97% of the amounts would be invested in the equity. The said scheme also covered Life Insurance Benefits to Dinesh S.Poojary. As per the document issued by the

Contd…….2

Opposite Parties, in case of the death of a person who had invested money, his legal heirs would receive Rs.4,08,000/- + Fund Value. It is a purely unit based plan. The entire amount is invested in equity or in stocks. Hence, the suppression of material fact does not arise.



3. Complainant submitted that Dinesh S.Poojary died on17.01.2009 due to Cardiac arrest and the Complainant submitted claim documents to the Opposite Parties. But to her utter surprise her claim as repudiated vide its letter dated 8.4.2009 by the Opposite Parties by citing reason that Dinesh S.Poojary was hospitalized and diagnosed of Upper GI Bleed, Esophagal varices Sec Cirrhosis of liver and alcoholic hepatitis with Splenomegaly and Minimal free fluid in the morison’s pouch as per abdominal ultra sonography report dated 16th August 2007 and was also alcoholic since 9 years. The said reason given by the Opposite Parties are absolute false and baseless.



4. Complainant submitted that Dinesh S.Poojary died due to Cardiac. There was no suppression of material fact or there was non-disclosure of material facts. Further the Opposite Parties official had filed up the application form of Dinesh S.Poojary. The late Dinesh S.Poojary had undergone all the medical tests/examination from a medical practitioner appointed by the Opposite Parties.



5. Complainant submits that the Opposite Parties are trying to hoodwink the eyes of law by misleading the Complainant. From the document issued by the Opposite Parties it is a scheme floated by the Opposite Parties for investing the amount collected from the persons like Dinesh S.Poojary in equity and in various bonds. The Opposite Parties have issued a document showing they have issued 224.27 units to Dinesh S.Poojary. As per the said document out of the Rs.12,000/- collected from Dinesh S.Poojary Rs.3,600/- is invested in Bajaj Allianz equity index fund II and rest of the amount is invested in bonds. The particulars of the said investment in bonds are not disclosed by the Opposite Parties. By repudiating the claim of the Complainant the Opposite Parties have thrown the business ethics to the wind. The Opposite Parties have clearly adopted unfair trade practice to enrich themselves at the cost of the Complainant.



6. Complainant submits that the Insurance Act does not permit such policy. Hence they have violated the Act by introducing a mischievous unit linked policy and are fooling the general public. The Insurance Act 1938 does not apply to the Unit linked plan mooted by the Opposite Party. Condition No.39 of the plan is quite contrary to the laws of the Insurance Act. Further the Opposite Parties have not furnished a certified copy of the medical report of Dinesh S.Poojary. Therefore, Opposite Parties are

Contd………3

indulged in Unfair Trade Practice which in turn amounts to “Deficiency in Service”. Hence this complaint.



7. After service of notices of the complaint, Opposite Party No.2 appeared through the counsel and failed to file version inspite of opportunity to file the same.



8. Complainant has produced 3 documents which are marked as Ex.C-1 to Ex.C-3. Complainant filed affidavit swearing to the facts stated in the complaint. We heard the complainant.



9. Now the points that arise for our consideration are:

1) Whether the Opposite Parties are not justified in repudiating the claim of the Complainant?

2) Whether the Opposite Party has committed deficiency in service?

3) Whether the Complainant is entitled for the reliefs claimed in the complaint?

4) What Order?

Point No.1 & 2:

10. We have gone through the material placed on record by the parties to the dispute. Ex.C-1 is photo copy the plan document issued by the Opposite Parties. Ex.C-2 is photo copy of the initial unit statement and Ex.C-3 is the letter dated 8.4.2009 issued by the Opposite Parties repudiating the claim of the Complainant.



11. After service of the notices, Opposite Parties have failed to file version and contest the matter. Ex.C-3 is the claim rejection letter wherein the Opposite Parties have taken the contention that Dinesh S.Poojary was hospitalized and diagnosed of Upper GI Bleed, Esophagal varices Sec Cirrhosis of liver and alcoholic hepatitis with Splenomegaly and Minimal free fluid in the morison’s pouch as per abdominal ultra sonography report dated 16th August 2007 and was also alcoholic since 9 years.


To substantiate the same, Opposite Parties have not produced any documents to show that their repudiation of the claim of the Complainant is justified. Therefore, we are of the opinion that the Complainant has not suppressed any material facts before filing up the proposal form dated 14.2.2008 and the claim repudiation by the Opposite Parties is not justified and thereby the Opposite Parties have committed deficiency in service. Hence, we answer the point Nos.1 and 2 in the Affirmative.



Point Nos.3 & 4

12. In view of the Affirmative answers to point Nos.1 & 2, we hold that the Complainant is entitled for the reliefs claimed. Hence, the point No.3 is also answered in the Affirmative.

Contd……..4

13. In the result, we pass the following:

ORDER

The complaint is allowed. Opposite Parties No.1 and 2 jointly and severally directed to pay to the Complainant Rs.4,08,000 + fund value alongwith interest at 12% per annum from the date of filing the claim, till payment. Opposite Parties are further directed to pay to the Complainant Rs.5,000/- as compensation and Rs.2,000/- as cost of the proceedings. Opposite Parties shall comply with the aforesaid order within one month from the date of receipt of this order.

K.C.Poovamma,

W/o Late K.K.Charamanna,

Kaikeri Village, Virajpet Taluk,

Kodgu District.




V/S



OPPOSITE PARTIES:



Bajaj Alianz General Insurance Co.Ltd.,

Having its Registered Office at GE Plaza,

Airport Road, Yerwada, Pune-411006,

Maharashtra.




O R D E R







The case of the complainant is as follows:



1. That the complainant’s husband has obtained a health insurance policy from the OP after paying a total premium of Rs.2929/- on 30.06.2007 and the same was in force till 29.06.2008.



2. That the OP as per the terms and conditions under took to indemnify the medical expenses.



3. That in the week of November 2007 the husband of the complainant fell ill and suffered from high grade fever and developed cough later for which he was treated at Virajpet initially and later he was shifted to Basappa Memorial Hospital Mysore where he was admitted as inpatient on 7.11.2007. It was diagnosied that the husband of the complainant was suffering from “Malignant Pleural Effusion” and the patient was treated for the said ailment till 15.11.2007.



4. As there was no improvement he was taken to Bangalore and admitted in Bhagavan Mahaveer Jain Hospital, Bangalore on 1.12.2007 for further treatment and he was there till 25.12.2007 where he died.



5. The complainant being wife has spent more than 3 lakhs on her husband namely K.K.Charmanna.



6. That the complainant informed the OP insurance company and requested for cash less facility. But the OP refused to provide cash less facility by assigning inappropriate reason and therefore the complainant was forced to pay the hospital bills which came to 3 lakhs Rupees, though the complainant submitted original discharge summary of B.M.Hospital Mysore as demanded by the OP and also sent the required documents sought by the OP.



7. Hence, the complainant prayed for following reliefs:



7.1 To reimburse Rs.3,00,000/- to the complainant towards the medical expenses and other incidental expenses incurred by the complainant on treating K.K.Charmanna, the insured with interest at the rate of 12% p.a. till realization.

7.2 To pay compensation to an extent of rs.50,000/- to the complainant for the mental agony caused to the complainant and also for expenses incurred on legal proceedings.



8. Upon admitting the complaint notice was ordered to be sent to the OP and on receipt of the Notice the OP has appeared through his advocate and has filed the version and later the affidavit evidence in lieu of examination in chief and has taken the following contentions:



8.1 That the complaint is not maintainable either in law or in fact and as such it is liable to be dismissed. That it is admitted that the OP has issued a health insurance policy and the same is issued subject to terms and conditions, exclusions and exceptions mentioned therein.



8.2 That it is not admitted that the complainant has intimated about the treatment taken to the OP.



8.3 That as per the documents submitted, the deceased has a history of melonoma in 2005 and he was suffering from MATA STATIC CARCINOMA-MELENOMA in lungs and it is otherwise is called as cancer at the beginning stage and it is also called Malignant Melenoma because it spreads to other area of the body. Therefore expenses incurred towards any pre-existing disease and its complications are not payable under the policy as the same was not declared by the complainant’s husband at the time of sending the proposal form.



8.4 That the averments made in para 4 and 5 of the complaint are not admitted because prior to taking treatment at network hospital the party must take steps to obtain pre-authorisation by way of sending the return form and then the insurance company will provide the benefit and the party however not required to pay the medical expenses directly to the network hospital, but the OP will indemnify the expenses by paying the amount to the hospital authorities and the company reserves right to review each claim for medical expenses and accordingly coverage will be determined according to the terms and conditions of the policy and in this regard the complainant has to prove all facts narrated in para 4 and 5 with the documents.



8.5 That the above facts came to the knowledge of the OP only after receipt of the notice from this Hon’ble Forum. As the complainant failed to discharge her obligation blame cannot be thrown on the OP as the company has done any deficiency in service.



8.6 If the holder of the policy is died some one claiming the benefit on behalf of the deceased must inform the company in writing immediately and send the copy of the Post Mortem with in 14 days, but the complainant has failed to do this.



8.7 That it is well settled law in field of insurance that contract of the insurance is a special type of contract based on ut most good faith and every fact of materiality must be disclosed. If deceased has disclosed the disease with which he was suffering the OP would not have accepted the proposal form and issued the policy.



8.8 For the foregoing reasons the OP pray for the dismissal of the complaint as they are not liable to indemnify the medical expenses incurred by the husband of the complainant.



9. The complainant apart from filing his affidavit evidence has also submitted the documents for perusal

a) Insurance Policy issued by the respondent

b) Broucher published and issued by the respondent.

c) Case summary and discharge record issued by B.M.

Hospital, Mysore.

d) C.T.Scan report.

e) Lab report.

f) Requisition dt.1.12.2007 to the respondent.

g) Letter from the respondent denying cashless facility

To K.K.Charamanna.

h) Death Summary issued bty B.M.J. Hospital, Bangalore

i) Copy of death certificate.

j) Letter dt.24.3.2008 isued by the respondent to the

Complainant.

k) Letters from B.M.J.Hospital, Bangalore seeking advance

Payment form the complainant – 3 Nos

l) Cash bills – 101 Nos



10.Like the OP has filed the true copy of the insurance policy and case summary and discharge card for perusal. Star package proposal form, fine needle aspiration, aytology report, C.T.Scan of thorax report.



11. Having regard to the averments made in the complaint and defense taken by the OP the following issues arise for determination.



1. Whether the OP has committed deficiency in service in repudiating the claim of the complainant?



2. To What order?
REASONS



12. It is the case of the complainant that her husband never knew that he was suffering from Melenoma since 2005 but only came to know when her husband was diagonised in Basappa Memorial Hospital, Mysore and her husband died due to melegnency melenoma foot multiple lung secondaries (RT) melegnant pleural effusion in 2007 and it is submitted by the advocate of the complainant that there is no nexus between the disease suffered by the husband of the complainant and the cause of death.



13. It is further submitted by the advocate for the complainant that the OP has not placed any materials to show that the complainant’s husband before sending the proposal and at the time of answering the queries it was with in the knowledge of the deceased (Insured). Had the complainant’s husband knew the same he would have mentioned in the proposal form but the same was not with in his knowledge he did not answer the queries positively as he was not suffering from any disease, then i.e, in the year 2005.



14. It is also argued by complainant’s advocate that the OP-Insurance company is bound to furnish the list of network hospital to the policy holders. But in this instant case the insurance company has failed to furnish the list of Net work hospital at the time of issuing the policy nor even after issuance of policy to the complainant’s husband. Therefore on the ground that the complainant’s husband failed to obtain pre-authorisation at the time admission to the hospital from the OP-Company and therefore on that ground the OP company ought not to have repudiated the claim but need to have extended the cash less benefit to the complainant.



15. As against the above submission, the advocate for the Opposite Party has submitted the written arguments and taken several contentions.



16. It is submitted prior to taking treatment and for incurring medical expenses at a network hospital the policy holder must request for pre-authorisation by way of written form. But the policy holder has not sent any form for obtaining pre-authorisation and with out obtaining pre-authorisation straight away has taken treatment unilaterally and since the complainant has failed to inform the OP well in advance neither the deceased nor his wife has failed to discharge the obligation.



17. It is submitted by the advocate of OP that the medical records disclose that the complainant’s husband had been suffering from Melenoma since 2005 and as such he ought to have disclosed the same in answering the queries in the proposal form and therefore the contract has become null and void and as such the complainant cannot enforce the contract entered in to by the complainant’s husband and the insurance company(OP) and as such the complainant is not entitled for reimbursement of medical expenditure.



18. The counsel for the OP has relied two citations. In both the case law it is made clear that if the policy holder suppressed regarding pre-existing disease and the same is proved by the Insurance company the policy holder or his dependent is not entitled to cash less benefit, but in this case the OP company has not placed any documentary proof to show that the complainant’s husband was suffering from melegnant melenoma prior to sending up the proposal and no medical record is produced to establish that the complainant’s husband took treatment for the same prior to submission of proposal Form.


It is contended by the complainant that her husband did not know about the disease which was diagonised in the year 2007 and therefore the burden is on the OP to establish that the complainant’s husband has deliberately and knowingly has suppressed the then the existing disease in the proposal form. In the discharge certificate “Death Summary” the history is mentioned as following:



“ Known case of malignant pleural effusion and the patient had fever 20 days back associated with chills and rigor, moderate degree no diurnal variations for 5 days followed by cough with expectorant followed by breathlessness on exertion for above complaints”



19. If we peruse the above history no where it is mentioned that the patient was suffering from that disease since 2005. Therefore the latest certificate does not speak that the husband of the complainant had been suffering from melognant melenoma since 2005 and admittedly proposal form was sent on 28/6/2007. and the same was accepted and later policy was issued subsequently.



20.The duty is cast upon the Insurance company to examine the insured at the time of accepting the proposal or issuing the policy which the insurance company-OP has failed to do so.



21. The following citations would suggest that burden is on the insurer to establish that there is nexus between the disease and the cause of death and the burden is heavily on the insurer to establish that the insured had the knowledge of the disease and knowingly the insured has failed to disclose the same at the time of sending the proposal.



“Life Insured died- claim repudiated on the ground of suppression of fact of illness- but there was no nexus between ailment and death” – Dvl.Manager, LIC of India Vs Jeetho Devi 1997(1) CPJ 310.



“Claim was repudiated on the ground that the insured who died on heat attack suppressed the fact of his suffering from diabetes- the insurance company has failed to prove the nexus between heart attack and diabetes. Repudiation of claim amounts to deficiency in service” – Shantha Ben Ratilal Patel Vs LIC of India 1996(2) CPJ 92.



“Insurance claim repudiated for concealment of fact of insured suffering from cancer. There was no evidence that the insured had the knowledge . Repudiation held was bad.” LIC of India Vs Sanjeev Mahendra Paul Sha 1998(1) CPJ 45-National Commission.



“Claim repudiated for suppression of material fact no nexus of cause of death and ailment was proved. Repudiation was held to be arbitrarily” Dvl.Manager, LIC of India Vs T.Venkateshwaralu 1998(1) CPJ 568 AP.



“The burden to prove of ailment lies on the company. No document was produced in support of contention that the deceased did not disclose that he was suffering from heart ailment. Insurance company failed to discharge his duty and held liable for deficient in service and liable to payment with interest” LIC of India Vs Smt.Asha Singh 2002(1) CPJ 403 UP, LIC of India Vs Charanjit Kour 2001(1) CPJ 53, LIC of India Vs Surjan Singh Saini 2001(1) CPJ 278.



22. Keeping the above citation in mind and the material placed before the Forum it can be said that the OP has failed to establish that the insured has deliberately and knowingly suppressed the fact of the disease with which he was suffering at the time of sending the proposal for obtaining the health insurance policy.



23. Since the OP has repudiated the genuine claim made by the complainant, has committed deficiency in service and therefore we answer point NO.1 positively.



24. No doubt the complainant has produced some medical bills at the time of filing the complainant there may be some inadmissible bills and the Forum cannot go in to those details and say as to how much the complainant is entitled for medical reimbursement. It is for the OP-Insurance company to examine the admissibility of those bills and take a final decision in the matter, having regard to terms and conditions of the policy the broucher issued in this regard, there is no doubt as such to admit the claim of the complainant, but only the quantum of medical reimbursement is to be determined by the OP-Company.



25. Having given the findings as above and the reasons there to we proceed to pass the following




ORDER



The complaint is partly allowed, and the OP is hereby directed to peruse the bills and consider the claim of the complainant positively taking in to consideration of the terms and conditions of the policy and further directed to pay interest at 10% p.a. from the date of the repudiation till its payment, after taking back the medical bills submitted by the complainant which are available in the Forum’s file. For complainant being put to mental agony and hardship and for financial loss, the OP is directed to pay the compensation of Rs.1000/- and Rs.1000/- towards the cost of the proceedings to the complainant.



The OP shall comply the said order with in 60 days from the date of receipt of this order.



Communicate this order to the parties.

N. Murugesan,

s/o K. Nagulsamy,

No.49/1, Kamarajapuram North,

Karur.2

Karur District. … Complainant



-versus-



1. The Senior Manager,

Bajaj Allianz life Insurance Company Limited,

GE Plaza, Airport road, Yerwada,

Pune 411 006.



2. The Manager,

Bajaj Allianz Life Insurance Company Limited,

No.68, SLF Towers, I Floor, Cherry road,

Asthampatti, Salem 7. … Opposite Parties



ORDER



1. The facts of the complaint is as follows : -

The complainant has taken mediclaim policy with the second opposite party vide policy No.0024298952. The commencement of policy is from 4.8.2006. The policy covers risk coverage to the riders who suffer total/partial disability, critical illness etc., when the policy is on force. On 21.10.2006 at about 2.30P.M. in Karur to Salem main road near Semmadai Lorry Owners Association Petrol Bunk, when the complainant was riding his motorcycle bearing Regn.No. TN 47 M 0221 along with his son from North to South in a slow speed and on the left side of the road, at that time the driver of the Maruthi Zen Car bearing Reg.No. KL AE 5856 dashed against the complainant and as a result he sustained multiple grievous injuries all over the body.


The Vangal Police Station has registered a case in Cr.No. 204/2006 against the driver of the Maruthi Car. The complainant was admitted at S & V Loga Hospital, Karur where he took treatment and for better treatment he was taken to Ganga Medical Care and Hospitals Pvt. Limited as inpatient from 21.10.2006 to 13.12.2006. He incurred Rs. 2 lakhs towards his medical treatment and till date he is taking treatment.


Due to the accident the complainant has become totally and permanently disabled. The complainant had submitted relevant records with the second opposite party for disbursement of the claim amount as per the terms and conditions of the policy. But the opposite party had rejected the claim stating that disability is not covered as per the policy conditions without assigning any reasons. The complainant states that as per the terms and conditions of the above said policy, if organ transplantation is conducted the claimant is entitled to get compensation. As such in his case his right hip has been replaced so he is entitled to benefits. The complainant issued a lawyer notice to the opposite parties to settle the claim but in vain. The complainant alleges deficiency in service on the part of the opposite parties and has lodged the complaint for claim amount, compensation and cost.



2. The first opposite party has chosen to set exparte.

3. Even though the second opposite party had appeared through his counsel he has not filed any written version or proof affidavit.



4. The point for consideration is whether there is any deficiency in service on the part of the opposite parties and if so to what relief the complainant is entitled to?



5. POINT: The complainant to prove his complaint has filed proof affidavit and 9 documents which has been marked as Exhibits A1 to A9.



6. The complainant has taken a policy with the second opposite party vide policy No.0024298952. The commencement of policy is from 4.8.2006. The policy covers risk coverage to the riders who suffer total/partial disability, critical illness etc., when the policy is on force. The terms and conditions of the policy has not been enclosed in the repudiation letter nor the same has been placed before us by the complainant either. On 21.10.2006 at about 2.30P.M. in Karur to Salem main road near Semmadai Lorry Owners Association Petrol Bunk, when the complainant was riding his motorcycle bearing Regn.No. TN 47 M 0221 along with his son from North to South in a slow speed and on the left side of the road, at that time the driver of the Maruthi Zen Car bearing Reg.No. KL AE 5856 dashed against the complainant and as a result he sustained multiple grievous injuries all over the body. The Vangal Police Station has registered a case in Cr.No. 204/2006 against the driver of the Maruthi Car.


The copy of the FIR has been produced and marked as Exhibit A2 by the complainant. The complainant was admitted at S & V Loga Hospital, Karur where he took treatment and for better treatment he was taken to Ganga Medical Care and Hospitals Pvt. Limited as inpatient from 21.10.2006 to 14.11.2006 and 28.11.2006 to 13.12.2006. They can be evidenced on perusal of the discharge summary produced and marked as Exhibits A8 and A9. Further in the discharge summary, it has been clearly mentioned that the complainant have been involved in RTA and it also mentioned about the treatment take as S & V Loga Hospital. He incurred Rs. 2 lakhs towards his medical treatment and till date he is taking treatment.


The bills for medical expenses incurred by the complainant has been produced and marked as Exhibit A3. Due to the accident the complainant has become totally and permanently disabled. The complainant as per the terms and conditions of the above said policy if organ transplantation is conducted the claimant is entitled to get compensation and this has been substantiated by Exhibit A9 as the complainant’s right hip has been replaced so he is entitled to benefits. A perusal of the complaint, proof affidavit and documentary evidences placed by the complainant before us clearly establishes the subsistence of insurance policy, the accident, subsequent grievous injuries suffered by the complainant in the accident, treatment at hospital and the expenses incurred thereon.


In this circumstances, we do not accept the repudiation of the claim by the second opposite party by simply stating that as per the policy the claim is not admissible. In view of the above discussion, we hold the act of repudiation by the opposite parties as deficiency in service and the opposite parties are liable to disburse the claim amount of Rs.1,05,000/- (Rupees one lakh and five thousand only) with interest at the rate of 7.5% per annum from the date of repudiation i.e. from 4.4.2007 till the date of payment. However, as this Forum granted interest on the claim amount no compensation for mental agony has been ordered to be paid to the complainant. Point is answered accordingly.



7. In the result, the complaint is allowed and the opposite parties are directed to disburse the claim amount of Rs.1,05,000/- (Rupees one lakh and five thousand only) with interest at the rate of 7.5% per annum from the date of repudiation i.e. from 4.4.2007 till the date of payment. Further, the opposite parties are directed to pay the complainant Rs.1,000/-(Rupees one thousand only) as costs. Time for payment one month from the date of this order.

Shri Rishav Sharma S/O Shri Roshan Lal Sharma,

R/O Anand Bhawan, Bharari, Shimla, H.P.



… Complainant.

Versus



1. Bajaj Allianz General Insurance Co. Ltd.,

Claims Deptt: SCF No.11, Phase-3B2, Mohali-160055

Through its Divisional Manager.



2. Bajaj Allianz General Insruance Co. Ltd.,

Branch Office: Khalini, Shimla-171002

Through its Branch Incharge.



…Opposite Parties




O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he was owner of Bajaj Discover motor cycle bearing registration No.HP-09A-1643, which was insured with the OP-Company for a sum of Rs.32,785/- for a period of one year, commencing from 27.04.2007 to 28.04.2008. He further avers that the aforesaid motor cycle, during the currency of the insurance policy, was stolen within three months of its purchase. The factum of theft was brought to the notice of the OP-Company, as also, to the Police, upon which FIR dated 30.06.2007 was lodged with the Police. Thereafter, he lodged the insurance claim with the OP-company, for indemnification of the insured amount, but the OP-company instead of settling it, dilly-dallied the amount of indemnification to him, on one pretext or the other. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint raised preliminary objections regarding maintainability of the complaint, suppression of material facts, and there being no deficiency in service. On merits, it is contended that the complainant did not inform them regarding the theft of the motor cycle, and also did not furnish the required documents for settlement of the insurance claim. They have denied the factum of theft of motor cycle, and have also assailed the authenticity of FIR. The other allegations have also been denied. Hence, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their rival contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned entire record of the case meticulously.

5. The motorcycle, purchased by the complainant,, which was insured with the OPs-Company, were subjected to theft. An FIR and untraced report have been appended as Annexures C-3 & C-4 respectively. The OPs-Company, being the insurer of the motorcycle, has, contended in its reply that since, no, formal FIR was immediately lodged at the instance of the complainant, hence, when the lodging of an FIR, is, a solemn condition, to be complied with, by the insured, with, its having not come to be lodged, ousts the claim of the complainant, as, Annexure C-3, is, contended to be a General Diary report and not copy of FIR. It is also asserted in the reply of the OPs, that, since, their has been a delay in intimation of theft by the complainant, to the police, on that score, also, it is contended that the claim of the complainant necessitated, its, being dishonoured.

6. Annexure R-3, is, a copy of the policy schedule, which discloses, that, the OPs-Company provided the policy to the complainant, qua, his motorcycle, which purportedly became the subject matter of theft, and it is also divulged in it, that, the currency of the policy was from 27.04.2007 to 26.04.2008. In support of the motor cycle having come to be stolen, Annexure C-6, is, appended with the complaint, wherein, it is, recited that the motorcycle was stolen on 30.06.2007, hence, during the currency of the policy. The theft, hence, took place after more-than a year having elapsed since the policy had come to be purchased, as such, the effect of Annexure C-6, is, sought to be repulsed by the OPs, on, the strength of the pleadings, in, the complaint, that, theft had taken place within three months from the date of its purchase, in, May 2006, hence, the FIR having come to be lodged in the year 2007, therefore, belatedly, as such delay, in, its lodging ousts the claim of the complainant.

7. Nonetheless, the, fact that Annexure C-2 reflects that, even assuming that there is some looseness arising out of in advertence, in, the pleadings, on which the OPs canvass their plea of im-promptitude on the part of the complainant, to, lodge an FIR in the matter, yet, the OPs-Company having taken to insure the vehicle of the complainant, whereas, it would have not done, so, in case the vehicle purchased in May, 2006, as, averred in the complaint, was subjected to theft within three months thereafter. Besides, otherwise when, the effect of Annexure C-6, has, also not come to be repulsed on the part of the OPs-Company, therefore, merely, on, the strength of looseness in pleadings having arisen out of mere inadvertence, the OPs-Company, cannot canvass, that, their was a belated lodging of the FIR, at, the instance of the complainant, even when theft having, as such, taken place within three months, since payment of premium by the complainant as reflected in Annexure C-2 and the FIR having come to be lodged, promptly. Therefore, the said contention, is, discountenanced.

8. The counsel for the OPs-Company has, also, seriously contended that their being, a, necessity of an FIR having come to be lodged at the instance of, the complainant, reciting, the fact of theft of the property insured by, it, and with Annexure C-3 being merely an entry in the general diary register, hence, not, being an FIR, non-compliance, of, the obligation contained in the policy cover has been occasioned, hence, debarring the complainant, to, insist upon the OPs-Company, to, indemnify the claim to him. The said contention, is, of no worth for the following reason:-

a) A perusal of the terms and conditions of the insurance cover, copy whereof is on record, at page 5 obliges the insured to only give notice to the Police, which condition has hence come to be complied with by the complainant, as reflected by Annexure C-3. With the terms and conditions of the policy executed by the contracting parties necessitating only intimation to the police, by the complainant which intimation the complainant did furnish to the Police, therefore, the, imposition of a condition, of, lodging of an FIR, which is a further act to be performed by the Police authorities, lapse whereof, if any, as, has, occurred cannot invite ouster of the claim, as also, when insistence of its lodging for reasons aforesaid, is, beyond the terms and conditions of the insurance policy, copy whereof, is, on record, obviously, then, insistence on necessity, of, its compliance by the complainant, is, untenable. Resultantly, the repudiation of the claim of the complainant by invoking the said condition, is, unwarranted, which amounts to be clear cut deficiency in service and unfair trade practice, hence the OPs-Company cannot exculpate its liability to indemnify the complainant for the loss, he suffered.

9. In the light of the above discussion, the complaint is allowed in the following terms:-



i) That the OP-Company shall indemnify the complainant to the extent of insured sum of Rs.32,784/- in accordance with rules.



ii) That the aforesaid amount, shall carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 15.07.2008, till making entire payment of the awarded amount;



iii) That the compliant shall surrender the RC and key of the motor cycle to the OPs-Company, on receipt of the amount, aforesaid;



iv) That the litigation cost is quantified at Rs.1500/- payable by the OPs-Company to the complainant;



v) That the OPs-Company shall comply with this order, within a period of forty five days, after the date of receipt of copy of this order;



10. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.