CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI



FIRST APPEAL NO.2582 OF 2006 Date of filing: 04/12/2006

IN CONSUMER COMPLAINT NO.210/2006 Date of order : 12/06/2009

DISTRICT CONSUMER FORUM, SOLAPUR

@ MISC.APPLICATION NO.3010/2006



Bajaj Allianz General Insurance Co.Ltd.

952-954 Appasaheb Marathe marg

Prabhadevi, Mumbai 400 025 ………..Appellant/org.O.P.no.1

v/s.

1. Kiran Shivlal Kothari

R/o.C/o.Kothari Industries

Chandramoli Industrial Estate

Mohol, Taluka Mohol, Dist.Solapur ………Respondent/org.complainant

2. Mr.Suresh Navalchand Shah

Near Antar Bharti Vidyapeeth

Kurdewadi, Taluka Madha

District Solapur ……..Respondent/org.O.P.no.2



Corum: Shri S.R.Khanzode, Hon’ble Presiding Judicial Member

Smt.S.P.Lale, Hon’ble Member

Present : Mr.S.R.Singh-Advocate for the appellant

Mr.U.B.Wavikar-Advocate for the respondent.

O R D E R



Per Shri S.R.Khanzode, Hon’ble Presiding Judicial Member

1. This appeal arises out of award/order dated 18/10/2006 passed in consumer complaint no.210/2006 Kiran Shivlal Kothari v/s. Bajaj Allianz General Insurance Co. Ltd. and another passed by District Consumer Forum, Solapur.

2. Complainant respondent no.1 Kiran Shivlal Kothari has preferred a mediclaim under Mediclaim policy and which stood repudiated by the appellant/ O.P.no.1-Insurance Co. on the ground of breach of utmost good faith, since ailment of diabetes was not disclosed. Forum below held that the expert opinion of Dr.Arvind Bamnikar relied upon for this purpose by the Insurance Co. could not be accepted in absence of relevant documents, which were not produced before it and holding accordingly, Forum below granted the claim. Feeling aggrieved thereby Insurance Co. preferred this appeal.

3. Heard Mr.S.R.Singh-Advocate for the appellant and Mr.U.B.Wavikar-Advocate for the respondent/org.complainant. Respondent no.2/org.O.P.no.2 absent.

4. Perused the papers. Forum below was perhaps correct in not giving much evidenciary value to the opinion of Dr.Arvind Bamnikar in absence of the documents which were referred to and relied by him. The relevant documents referred are about the discharge card wherein history of diabetes was mentioned. In an affidavit filed before us in appeal, complainant disputed the fact about his diabetic condition and submitted that it was wrongly mentioned in the discharge card. Thus, there is a dispute as to the factual situation and which needs to be properly probed giving opportunity to both the parties under section 13 of Consumer Protection Act, 1986. Hence, this is a fit case for remand. We hold accordingly and pass following order:-

ORDER

1. Appeal is allowed.

2. Impugned order/award dated 18/10/2006 is set aside.

3. Matter is remanded back to the Forum below for denovo trial.

4. Forum below shall give opportunity to both the sides to lead additional evidence, if any under section 13 of Consumer Protection Act, 1986 and then shall settle the dispute according to law.

5. Matter be expedited and preferably decided within 2 months from the date of appearance.

6. Both the parties shall appear before the Forum below on 13/7/2009.

7. Misc.application stands disposed of.

8. Copies of the order be furnished to the parties.





(S.P.Lale) (S.R.Khanzode)

Member Presiding Judicial Member

O R D E R

1. The complainant, a resident of Perumali Village, Terlam Mandal, obtained a Group Personal Accident Master Policy through the 3rd opposite party with opposite parties 1 and 2, bearing Policy No.12-29-14-00129-05, dated 23-12-2005 and valid up to 07-01-2007 and his wife was a nominee. On 24-2-2005, the complainant along with Yelala Srinu, was proceeding on Hero Honda Motor Cycle bearing No.A.P.35 D 9172 from Perumali to Rajam and though, the complainant drove the same in normal speed, a tractor bearing No.A.P.35 T 1292, came in opposite direction at high speed and dashed the motor bike and the complainant received fractured injuries to his right knee and patella, and fracture on his right shoulder, besides fracture to his lower jaw and both cheeks and mandible on both sides. All injuries are grievous in nature. He became permanent disabled man. Due to lake of teeth, he could not eat any hard food and lost his biting capacity and lost his vision a bit. He could not attend his normal duties. As per the terms and conditions of the policy, the opposite parties are liable to pay compensation of Rs.2,00,000/- for permanent disability and Rs.25,000/- towards hospitalization expenses. The complainant was removed to P.V.R.hospital, Vizianagaram and from there, referred to Simhadri Hospital, Visakhapatnam, where he was inpatient for 180 days. A case in Crime No.29/05, under Sections 338, 337 of I.P.C. was registered and charge sheet against the driver of the tractor was filed in C.C.75/05. The policy was inforce from 08-01-2005 to 07-01-2006. The opposite parties did not pay the sum assured, inspite of a legal notice nor give any reply. This failure to make payment amounted to deficiency in service. Hence the complaint claimed compensation of Rs.2,00,000/- towards permanent disability Rs.25,000/- towards hospitalization expenses and another sum of Rs.15,000/- towards compensation for mental agony.


2. While the complaint is pending enquiry and in view of counter filed by the 1st opposite party, the complainant impleaded the 4th opposite party, AIG General Insurance Company as the insurer.


3. The 2nd opposite party filed a counter denying the claim of the complainant and took up a plea that as per the reply given by the 3rd opposite party, it is AIG General Insurance Company, processing the claim. It also pleaded that even if the complainant’s case is accepted, the policy was not inforce from 10-01-2005 whereas the accident took place on 24-04-2005 i.e., much prior to the issued of the policy and on these grounds dismissal of the complaint against it.


4. The 3rd opposite party filed a counter admitting issue of policy, but pleaded that it was issued by Tata AIG General Insurance Company and the same was in force from 10-10-2004 to 09-10-2005 and that insurance company is the necessary party. It denied in liability it is the only a felicitator in obtaining the policy from insurance company and there cannot be any deficiency in service. Hence the complaint has to be dismissed.


5. The 4th opposite party frilled counter pleading that, as per the terms and conditions of the policy it is liable to pay compensation for death and dismemberment, permanent total disability or permanent partial disability as per the complaint. Hence this opposite party rejected the claim by letter dated 29-07-2005. More over, in the claim form complainant is declared fit after treatment by Dr.P.R.K.Prasad and basing on the this, the opposite party issued a reply on 31-10-2007 to the legal notice dated 28-07-2007. ?The claim does not fall under the purview of the conditions of the policy. The complainant colluded with the owner and driver of the vehicle said to have been involved in the accident and that there is dealy of eight days in registering the FIR. The claim is barred by time. The claim is liable to be dismissed against this opposite party.


6. At the time of enquiry, both parties filed affidavits in support of their contentions and marked Ex.A.1 to A.10 and Ex.B.1 to B.4 and both the counsels were heard who reiterated their respective contentions.


7. It is the contention of the counsel for the complainant that the issue of policy not being in dispute, the evidence filed by him would show that there was an accident, wherein the complainant sustained grievous injuries, the opposite parties are bound to pay the policy amount to the complainant and its failure to do so, is nothing but deficiency in service. More over, he contended, the claim is in time, as only from the date of repudiation of the claim, the limitation starts run to. He relied upon a decision in Ganeshwar Mohanty Vs. Divisional Engineer, The New India Assurance co., Ltd., a& Anr 1995(1) CPR page 65, wherein it was held that the complaint, within three years of repudiation of claim is maintainable. He pleaded that Ex.A.10 disability certificate would show permanent disability sustained by the complainant.


8. It is the contention of the counsel for opposite parties 1 and 2 that it did not issue any policy to the complainant covering the accident period. He pointed out that this Forum has no territorial jurisdiction and ultimately contended for liability, if any would be on opposite party No.4 only. The counsel for opposite party No.3, Road Safety club, naturally took up a plea that it is only a felicitator in obtaining the policy and forward the claim to the concerned insurance company and does not have any liability.


9. The counsel for opposite party No.4 is opposing the claim on two grounds. Firstly, that the claim is barred by time which was made three years after incident. He pointed out that inspite of specific plea by the 3rd opposites party that, it is the 4th opposite party only which was the insurer, the complainant did not take proper step to impleade this opposite party and even by the date of its impleading, the claim is barred by time. He also urged that it was never issued any notice by the complainant and so question of repudiation did not arise. The 2nd ground urged by the opposite party No.4 is with the nature of injury sustained by the complainant, do not come under the terms and conditions of the policy enumerated therein and hence it cannot be mulcted any liability. It is also its contention that this Forum has no territorial jurisdiction as the terms of the policy would in fact show that dispute, if any, would be subject to the jurisdiction of Chennai Court.


10. In view of the above contentions arises by both sides the following points that would arise for determination in this complaint is:
1. Whether this Forum has got territorial jurisdiction to settle the claim?
2. Whether the claim is barred by limitation?
3. Whether there is any deficiency in service on the part of the opposite parties
and the complainant is entitled for the claim made?



11. POINT No.1:- This claim, basied on Personal Accident Master Policy, the
complainant is no doubt resident of Vizianagaram District. The claim is against three opposite parties originally. The 3rd opposite party is Road Safety club, with head quarters at Chennai. The opposite party No.2 is located at Vizianagaram. But ultimately it turn out that it did not issue any policy covering the accident period. The 4th opposite party, which subsequently impleaded, which actually issued the policy is at Chennai. Apart from this, the accident occurred near Rajam which is undisputedly in neighbouring Srikakulam District. Thus except the residence of the complainant, none of the opposite parties are shown to be within the jurisdiction of this Forum. Though the 2nd opposite party is resident of Vizianagaram, it was not concerned with insurance company and the same was informed to the complainant by the 3rd opposite party, prior to the complaint itself. Thus none of the opposite parties nor any part of cause of action has arisen within the jurisdiction of this Forum and we hold that this forum has no territorial jurisdiction to entertain the complaint. Accordingly this point is answered against the complainant.


12. POINT No.2:- ex.B.4 insurance policy issued on 21-06-2003, covering a period of insurance from 14-05-2004 t 13-05-2005. The next and most important plea of the 4th opposite party, which is the insurer is that the claim is barred by time. Though there is some discrepancy in the pleading, as to the date when the policy was issued and accident occurred, as can be seen from the Ex.B.4 insurance certificate filed by the opposite party, it was issued on 21-06-2003 covering a period of insurance from 14-05-2004 to 13-05-2005. Thus by the time of accident, the policy was inforce. However, as can be seen from the pleadings of the 3rd opposite party, it gave a reply specifically mentioning that claim document have been forwarded to Tata AIG Insurance Company. This Counter was filed on 05-6-2008. More over, Ex.A.5 reply notice issued by the 4th opposite party to the counsel for the complainant is dated 31-10-2007 denying any liability. This is in reply to Ex.A.6 notice issued by complainant’s counsel. Inspite of it, the 4th opposite party was not impleaded as party originally. Only on 19-09-2008 the complainant took steps for its impleading which was allowed on the same date. As the accident occurred on 24-02-2005 it is quite evident by the date of impleading this 4th opposite party the claim is against it is already barred by time. Even the legal notice Ex.A.6, issued by the complainant to the opposite parties enclosing of the 4th opposite party was on 28-08-2007, which was beyond two years period of limitation. The complaint itself was filed on 15-02-2008, will beyond the period of two years from the date of accident. Thus the legal notice issued as well as impleading of the 4th opposite party, the complainant laying a claim was well beyond the limitation period. There is no application by the complainant pleading for condonation of delay by the Forum, as provided under Section 24 (a) (2) of the Act, prescribing two years limitation period for any claim with power to the Forum for condoning the delay recording its reasons. Thus the claim against opposite party No.4 insurance company which has to answer the claim is clearly barred by time.



13. The learned counsel for complainant tried to contend that the repudiation of the claim by the insurance company is the maturity policy of limitation and even cited an Authority in Ganeshwar Mohanty Vs. Divisional Engineer, The New India Assurance Co., Ltd., & Ant., 1995 (1) CPR page 65 (Cuttack. But, apart from the fact that this decision was rendered on 03-04-1993 by the Orissa Sate Commission prior to insertion of section 24 (A), which came into force on 18-06-1993, prescribing limitation period, the Legal notice itself was issued after the limitation period on 28-08-2007. The complaint itself was filed much long thereafter that too without impleading the 4th opposite party, which has to answer the claim. Thus the decision relied upon by the counsel for the complainant is of no help to substantiate his contention. Though the counsel also cited another authority in Maya Devi Vs. Life Insurance Corpn., of India 2008 (3) A.P.L.J. 1 (CC) (NC), in our view, the question involved in that decision is not at all relevant to the dispute on hand.


14. In the light of the above discussion we hold that the claim is barred by time.


15. POINT No.3:- The issue of policy in favour fo the complainant by opposite party No.4 insurance company not being in dispute, the next question that would arise would be whether the complainant sustained injuries in accident and the denial to settle his claim, as per terms of the policy, by the opposite parties amounts to deficiency in service, has to be considered. The opposite parties 1 and 2 are not insurers and opposite party No.3 is only felicitator in obtaining the insurance policy by the complainant and they cannot be mulcted with any liability in satisfying the claim. It is only opposite party No.4, being insurer, would be liable to settle the claim.


16. It is contended that there was no accident at all and the extraordinary delay in giving report would show that there is something fishy and the complainant came up with a false claim. No doubt Ex.A.3, first information report, was registered six days after the incident that too while he was undergoing treatment in Simhadri Hospital, Visakhapatnam. Though the complainant’s claim that he was treated at Vizianagaram in the first instance, there is no material to support it. The first information report was registered on the statement recorded by Rajam police at Simhadri Hospital, Visakhapatnam. But the fact remains that the case was registered against the tractor driver and the Motor Vehicle Inspector inspected the tractor, though he did not find any damage to it. In our view by this reason only the plea of the complainant that he met with an accident, while going on the motor bike, cannot be and need not be disbelieved. Evidently, due to ignorance and in the anxiety to render medical assistance to the complainant, the report to police was not given immediately. Hence we are unable to accept the plea of the insurance company that there is no accident at all.



17. With regard to the injuries sustained by the complainant and the disability caused to him Ex.A.5 the medical record issued by Simhadri Hospital would show that he sustained grievous injuriries on right knee, right patella, fracture of mandible on both sides, besides a lacerated wound of right shoulder. Surprisingly it does not show that there was any loss of teeth, as claimed by the complainant. Similarly the plea of the complainant that he underwent treatment for six months in that hospital was not supported by any evidence. So the limited evidence placed by the complainant is that he suffered fractured injury on his right nee, right patella and mandible fracture on both sides of cheeks in that accident and that injury was grievous in nature.


18. Apart from the above evidence, the complainant filed disability certificate issued by Medical Board and to prove it affidavit of Dr.K.V.Murali Mohan who was one of the signatories of Ex.A.10 disability certificate was filed. The affidavit and the certificate would show old fractured injury on his right patilla and mandible double fractures on both sides of cheeks and the disability was assessed at 25%. This medical evidence could not be seriously challenged by the opposite party.


19. However, the insurance company took up a stand at that the injury sustained by the complainant was not covered by Ex.B.1 policy, wherein different types of injuries and extent of its disabilities were enumerated. Evidently it is a permanent partial disability. Though in the policy Ex.B.1 the injuries were specifically enumerated and the injuries sustained by the complainant was not covered, at page No.13 of the policy providing definitions permanent partial disability was defined as permanent anatomical loss of use of a body part, substantiated by a diagnosis from a physician. By virtue of this definition, the contention of counsel for insurance company that the policy does not cover this injury cannot be accepted. As per the Doctor’s assessment it is 25% disability that was caused. This scope of coverage as per the policy is for permanent partial disablement, sum insured was Rs.2,00,000/- and it being 25% partial disablement, the complainant would be entitle for Rs.50,000/- policy amount.


19. Though the complainant claimed Rs.25,000/-, as hospitalization charges. Evidently, there is absolutely no evidence that to be placed by him to show that he was hospitalized and treated as inpatient anywhere. That being the case, on that count the complainant is not entitled for any amount. With regard to the claim for compensation of mental agony at Rs.15,000/- it being a claim for payment of policy amount covered in the accidental insurance, question of granting compensation for mental agony separately does not arise. More over, there was never any claim against opposite party No.4 at any time and consequently there is no petition by it which can be said to be unjust. On that ground also the claim for compensation for mental agony cannot be sustained. Thus in all the complainant would be entitled for Rs.50,000/- being 25% of policy amount that too from opposite party No.4 only which shall be payable within 30 days and any failure of its with interest at 9% per annum from the date of this Order till the date of payment. However, in view of our finding on points one and two that this Forum has no territorial jurisdiction and that claim is barred by time, no order for payment by opposite party No.4 can be made by this Forum. Accordingly this point is answered.



21. In the result, the complaint is dismissed on the ground of limitation. Each party to bear their respective costs. Advocate fee is fixed at Rs.1,000/- (Rupees one thousand only).

C.D.R.F. KOLLAM : CIVIL STATION - 691013

CONSUMER DISPUTES REDRESSAL FORUM ::: KOLLAM

consumer case(CC) No. CC/06/170

Ravikumar,S/o.Velukutty Asari,ThayyilazhikathuVeed
...........Appellant(s)
Vs.

The Manager,Bajaj Allianz General Insurance Co. Lt

M/s. Sarathy Auto Cars, Authorised Dealer for Maruti Udyog Ltd.
...........Respondent(s)

BEFORE:


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




ORDER SRI.K. VIJAYAKUMARAN, PRESIDENT.

This is a complaint for allowing the Insurance claim, compensation and costs.
The averments in the complaint can be briefly summarized as follows:
The complainant purchased on 31.1.2005 a new Maruti 800 CC A/C car from the 2nd opp.party for own use with finance from M/s. City Corp Maruti Finance, Chennai. The car was registered with registration No. KL-2U-3127. The first opp.party provided Insurance Coverage for the car. An apprehensive policy certificate bearing No.G-05-1601-1801-00110241 valid for the period from 31.1.2005 to 30.1.2006. On 18.12.2005 at about 11 a.m. while the complainant was driving the car along the road in front the Adventure Park , Kollam its skiddes and hit against two motor cycles parked their and the compound wall of the adventure park the incident occurred in an attempt to save a small child who suddenly cut across the road nobody was injured in the incident. The complainant immediately reported the matter to the Traffic Police Station as well as the 2nd opp.party. The opp.party removed the car using recovery Van and took the car to the traffic policy station it was taken to the workshop of the 2nd opp.party on 19,.12.2005 for carrying out the repairs. The 2nd opp.party assured the complainant that all the repairs will be done on cashless basis. The car is covered by valid insurance coverage by the 1st opp.party. The first opp.party has also informed the incident to entrust the car to the 2nd opp.party. When the car was taken to the workshop a report of the first opp.party was also presence in the workshop of the 2nd opp.party certain blank claim forms were bought signed by the complainant for the purpose of processing the claim apart from signing the job order card. On 28.12.2005 the complainant visited the 2nd opp.party’s service Center for taking delivery of the car. It was told that the 1st opp.party has not made payment of the repair charges and therefore requested to wait for a few days for getting release of the vehicle Thereafter the complainant approached the opp.parties 1 and 2 several times. But the car was not release. There after the complainant issued a lawyer notice on 19.1.2006. Evenafter the car was not release him. The complainant is having a valid effective driving license and that he has not committed any breach of the conditions in the policy. Hence the complaint
The first opp.party filed a version contending interalia, that the complaint is not maintainable either in law or on facts. The claim lodged by the complainant is not supported by necessary documents for processing the claim. The complainant had adopted illegal methods to earn unlawful compensation with fabricated records. The alleged cause for the accident was stated in the claim form as ‘while taking out the vehicle to the road, one bike suddenly came from the opposite direction and in order to save the life of the riders of the bike, the vehicle was deviated and the same dashed on the gate causing damage to either side of the bike. It was also stated that the complainant was driving the vehicle at the time of accident . The place of occurrence shown was the Adventure Park. Immediately an investigation and survey were arranged by the opp.party. It was revealed in the investigation conducted that the statements in the claim form are totally false and the cause of accident was not as alleged. Accordingly this opp.party had sought . clarification from the complainant. Instead of cooperating with the opp.party to settle the claim by providing necessary facts and details, the complainant has adopted illegal methods by threatening this opp.party. The Adventure Park is only a few years away from the Traffic Police Station. Though the alleged accident was on 18.12.2005 . The GD entry was made on 21.12.2005. It was further revealed that the investigation that the vehicle given on hire on rent a car basis and there were more than three persons in the car at the time accident It was further revealed that the occupants of the car provided to settle the claim without informing the police. GD entry was made for the purpose of raising the claim for own damages . The police did not registered any crime or investigate the same. The news papers of the next day ie. 19.12.2005 had even reported the names of the persons in the car. They were said be Sidhique, Shameer and Nazim of Randam Kutti. Suppressing the above facts the complainant had lodged a false claim and the claim was repudiated after conducting proper investigation and survey and after perusing necessary documents. The complainant was aware that he was not eligible to get any compensation. Hence this opp.party prays to dismiss the complaint.
The 2nd opp.party filed a separate version contending that the complaint is illegal irregular and improper. The 2nd opp.party was wrongly impleaded in the party array in this complaint. The averments in the complaint the complainant purchased a new Maruti 800 CC A/C. car from the 2nd opp.party with finance arrangement from M/s. City Corp Maruti Finance, Chennai on 31.1.2005 and the same was taken up from the 2nd opp.party on 19.12.2005. Consequent to an accident occurred and the car sustained damages The 2nd opp.party for repairs the said car and the payments of the same was made by the complainant. the 2nd opp.party is entitled to get the invoice amount for having having repairing charges. There is no previty of contract on the part of the 2nd opp.party in respect of the contract of insurance between the complainant and the 1st opp.party. who are governed by the terms and conditions in the policy. The 2nd opp.party is not bound to wait till the settlement of the claim by the first opp.party in favour of the complainant. The complainant has not given balance amount about the repairs made by the 2nd opp.party. The 2nd opp.party is not liable to pay any amount to the complainant nor any compensation to the complainant. The complainant is not entitled to get any amount to the 2nd opp.party. The 2nd opp.party prays to dismiss the complaint.
Points that would arise for consideration are:
1.Whether there is deficiency in service on the part of the opp.parties
2. Reliefs and costs.
3.For the complainant PW.1 is examined. Ext. P1 to P10 are marked.
4.For the opp.party DW.1 and 5 are examined. Ext. D1 to D4 are marked.
Points:
As a matter of fact the accident is admitted. There is also no dispute that the car involved in the accident belongs to the complainant and that the car was having a subsisting comprehensive insurance policy at the time of accident. The dispute is with regard to the person who was driving the car at the time of incident and as to whether he had a valid driving license or not

The complainant gave evidence as PW.1. According to him he was driving the car at the time of accident and that his son and two of his friends were also with him in the car at the time of accident. The accident occurred when he attempted to save a child who suddenly cut across the road. PW.1 has further stated that the incident was reported to the Traffic Police Station which situates near the place of occurrence on the same day and the police after enquiry made Ext.P5 G.D entry in the traffic police station.

According to the opp.party the car at the time of accident was driven by one who had no valid driving licence. According to the 1st opp.party leading dailies reported the accident on the next day itself in which it was stated that 3 youngsters by name Siddique, Shameer and Nasim were in the car Ext.X3 is the Mathrubhumi dily dated 19.12.2005 and Ext.X4 is the Malayalamanaorama daily dated 19.12.2005 Ext. X3 was proved through DW.3 and Ext. X4 was proved through DW.4 DW.3 and 4 are not the Reporters of the news item. Both DW.3 and 4 have stated that they have no personal knowledge about the incident or the person who was driving the car at the time of accident. In X3 is the portion of news item there is absolutely no mention of the driver but stated cjp\Pj]\[ ,aJG[ rlcjA tr\rjiglnk dlyjhkn\mlujgkr\rfk . The time of accident as per Ext. X3 [a] is 12.30 p.m. In Ext. X4 the time of occurrence is 1 p.m. In ExtX4 also there is absolutely no mention regarding the driver of the car or the passengers. So from Ext.X3 andX4 and the evidence of DWs. 2 and 3 it cannot be said that the opp.parties have identified the driver of the car at the time of accident.

DW.2 and 5 are respectively the Head constable and Sub Inspector of Traffic Police Station at the relevant time who conducted investigations. DW.2 has stated that the complainant has lodged a complaint regarding the accident seeking a GD entry for claiming damages and on the basis of the same they have issued Ext.P5. DWs 2 and 5 have stated that at the time of accident the complaint himself was driving the car. To a pointed question by the learned counsel for the 1st opp.party DW.5 has stated that from the investigation conducted by DW.2 it was revealed that the complainant was driving the car at the time of accident. DWs. 2 and 5 further stated that no crime was registered since nobody was injured in the incident and that the damage caused to the Public properly ie. Compound wall and the gate has been rebuilt by the complainant. DW.2 has stated in cross examination that the name of the driver is not usually written in the GD entry and we find no reason to disbelieve him.

Exts. D2 is the preliminary survey report obtained by opp.party 1 and Exts. D3 is the investigation report collected by 1st opp.party through M/s. Santergeens Strangely either the surveyor or the person who prepared Ext. D3 are not examined for reasons best known to the opp.party 1. In Ext. D3 the names of certain eye witnesses have been stated. Those eye witnesses were not even cited as witnesses. The most competent persons to speak about the incident and the driver of the car at the time of accident are those eye witnesses. The non examination of the Surveyor, the investigator who prepared Ext. D3 and the eye witnesses mentioned in Ext. D3 raises suspicion. The evidence of PW.1 that he was driving the car at the time of accident is corroborated by the evidence of DW.2 and 5. As pointed out earlier the evidence of DW.3 and 4 and Ext. X3 and X4 does not lent any support to the contention of opp.party 1 that the complainant was driving the car at the time of incident. From the available materials we hold that the complainant was driving the car at the time of accident and that the repudiation of the claim is not valid land proper. Points found accordingly.
In the result the complaint is allowed , directing the opp.party I to pay the claim amount of Rs.32,625/- with interest at the rate of 12% per annum from the date of filing of claim petition to the complainant. and further directed to pay Rs.2,000/- as compensation and cost to the complainant. The order is to be complied with within one month from the date of this order
Dated this the 20th day of March, 2009.



I n d e x

List of witnesses for the complainant
PW.1. – Revi Kumar
List of documents for the complainant
P1. – Copy of Insurance policy
P2. – Job order card
P3. – Copy of Advocate notice dt. 19.1.2006
P3.a. – Postal receipts
P4. – Reply notice of 1st opp.party dt. 27.1.2006
P5. – GD extract of Traffic Police Station, Kollam dt. 21.12.2005
P6. – Cash receipt paid to the 2nd opp.party dt. 1.2.2006
P7. – Repairs bill issued by 2nd opp.party 28.1.2006
P8. – Letter sent to the 1st opp.party dt. 16.3.2006
P9. - Reply to Ext. P8
P10. – Postal receipt.
List of witnesses for the opp.parties
DW.1.Sini
DW.2.- Sundaresan
DW.3. – Vechoochira Madhu
DW.4. – Sreejith.K. Warrier
D5. – V. Sugathan
List of documents for the opp.parties
D1. – Motor Insurance claim Forum
D2. – Preliminary survey report
D3. – Investigation report with photographs
D4. – News paper cutting.
X1. – Copy of GD register
X2. – Report submitted by R. Asok Kumar, SI of Police, Traffic PS., Kollam.
X3. - News paper daily dated19.12.2005
X4. – Newspaper cutting Malayala Manorama daily dated 19.12.2005.

REASONS Points 1 and 2 Complainant is the owner of maxicab bearing reg.no. KA25 C113, it is insured with respondent for the period from 16-1-08 to 15-1-09. That vehicle met with accident on 26-7-08 at about 5 AM near Koppal. In that accident some damages are caused to that vehicle. Complainant intimated about the accident to respondent, who deputed surveyor, who has assessed the damages. These facts are not in dispute. As per complainant, M/S.S.M.Mirjankar and sons has estimated the damages at Rs.65919.47 ps. that estimation is produced before the forum. Complainant has not produced bills for having spent amount for repair of that vehicle. Even affidavit of M/S.S.M.Mirjankar and sons is not filed, as such, such quantum of damages claimed by complainant cannot be allowed.

The respondent has repudiated the claim only on a ground that, driving license is expired and not valid at the material time of accident. The respondent has produced an endorsement or RTO, Dharwad. As per that endorsement driver has DL to driver LMV non transport from 18-7-02 to 17-7-2022. There is also DL to him to drive transport vehicle from 6-4-2005 to 5-4-2008 and 30-7-08 to 29-7-2011. As per complainant he had given that vehicle on hire basis to go to Koppal. As per respondent, since accident has taken place on 26-7-08, there was no valid & effective driving license on that day.

The vehicle involved in the accident is light motor vehicle, merely that vehicle was given on hire basis by itself does not become goods carriage/transport vehicle. Moreover, driver of that vehicle has DL to drive light motor vehicle from 18-7-2002 to 17-7-2022 apart from that, he had DL to drive transport vehicle from 6-4-05 to 5-4-2008 and again got DL to drive transport vehicle from 30-7-08 to 29-7-2011. It is not specifically proved by respondent that in between 5-4-08 to 30-7-08 the license of driver was either cancelled or he had become invalid to drive either transport or non transport light motor vehicle. As such in view of a decision AIR 2008 Supreme Court 1418 light motor vehicle covers light passenger carriage vehicle and light goods carriage vehicle, as such a driver in possession of LMV license cannot be said to not possess effective license to drive matador van having goods carriage permit. Under such circumstance insurance company cannot shift its liability to pay compensation. Similar principle is found in 1. 2005 (2) CPR 569 2. 2005 (2) CPR 119 NC 3. ILR 2008 Karnataka pg.4583 and 4. ILR 2008 Karnataka 4832 In view of the principles held in those decisions coupled with the facts and documents of the instant case the contention of the respondent that, driving license was expired & it was not valid on the day of accident, cannot be accepted.


The learned counsel for respondent has relied on quite number of decisions. In 2008 SAR Civil 130 Supreme Court, vehicle was registered as Goods Carrier which is covered by category of transport vehicle. Hence, Tata 704 was transport vehicle. Whereas in the instant case, the vehicle involved in the accident is Maxicab. It is not a Goods Carrier. In 2006 SAR Civil 414 Supreme Court, commercial vehicle met with accident and driver did not possess any license to drive a commercial vehicle, he was the holder of license to drive Light Motor Vehicle only. In the instant case it is to be deemed that driver had valid license at the time of accident. AIR 2008 Supreme Court 2266, driver was holder of license of three wheeler and he had no valid license for driving the transport vehicle. In the instant case vehicle involved in the accident is not a three wheeler. In 2007 (2) TAC Pg. 393 Supreme Court, the driving license of tractor driver had expired on 27-8-1994 and on the date of accident he was not holding any valid DL accident took place on 28-4-1995 till then renewal application was not filed.


Such circumstance is not in the instant case. Similar situation had arisen in another decision of 2008 (3) TAC 769 Supreme Court, wherein driver had valid driving license from 11-2-1990 to 10-2-1993 and again from 7-2-1996 to 7-2-1999 and he had no DL on the day of accident. In the instant case though driver had no DL on the day of accident but he had DL to drive Light Motor Vehicle for the long period. Moreover, he got it renewed few days after the accident. Some more decisions i.e. 2006 SAR Civil 418, civil appeal no.3496/2008 (unreported), 2008 (3) TAC 776 Supreme Court, Civil appeal no.5721/08 (unreported), are also relied on for respondent.

The principles laid down in those decisions cannot be disputed. But it is also a settled law that, each case has to be considered on its own facts. As already stated, in the instant case driver of the finding vehicle had DL to drive LMV from 18-7-2002 to 17-7-2022. Admittedly Maxicab is Light Motor Vehicle, it is not proved by the respondent that it is a Goods Carrier or Transport Vehicle. Moreover, that driver had DL to drive transport vehicle for the period from 6-4-2005 to 5-4-2008 and 30-7-2008 to 29-7-2011.

As already stated during the gap period it is not proved by the respondent that, that driver was disabled to drive such a vehicle. As such rulings relied on for respondent, with great respect, they are of little help to respondent. As per the surveyor’s report estimation of damages is Rs.12405/- in which policy excess is deducted. Salvages is assessed at Rs.355 if it is deducted the estimation comes to Rs.12050 moreover, complainant has not produced any material to disbelieve such estimation of the surveyor so, if the respondent is directed to pay that amount with reasonable rate of interest may not be unjust and improper in the opinion of the forum. Repudiation of the claim on untenable ground amounts to deficiency in service hence, point.1 is answered in Positive and point.2 in Positive but accordingly. Point.3: In view of the finding given on points 1 and 2 proceeded to pass the following


O R D E R

The complaint is allowed in part with a direction to the respondent to pay Rs.12,050/- with 8% interest p.a payable two months after the date of accident i.e. 26-7-2008 till its realization apart from Rs.1,000/- towards cost of the litigation within one month from the date of receipt of copy of this order. (Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 3rd March 2009)

ORDER

COMPLAINT FILED: 29.12.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 09th MARCH 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2844/2008


COMPLAINANT Sri. B.A. Prabhakar Rai, S/o. Late Sri Kantha Rai, Age 68 years, No. 345, ‘Samrudha’, 7th Cross, Sri Lakshmi Road, Shanthinagar, Bangalore. Advocate (Ranganatha Gowda)

V/s.

OPPOSITE PARTY M/s. Bajaj Alianz General Insurance Company Ltd., Rept. By Manager, Regional Office, No. 31, Ground Floor, T.B.R. Towers, 1st Cross, New Mission Road, Next to Bangalore Stock Exchange, Bangalore – 560 024. Advocate (Manoj Kumar M.R.)


O R D E R

This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to settle the insurance claim for Rs.2,00,000/- and pay a compensation of Rs.50,000/- and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant is the R.C. Owner of the vehicle bearing No. KG-01-MA-6920. OP covered the insurance of the said vehicle which was valid from 06.04.2005 to 05.04.2006. OP has also collected Rs.100/- towards the personal accident cover for owner-driver under section 3 of the insurance policy covering the risk to the tune of Rs.2,00,000/-. On 18.07.2005 at about 2 p.m. while complainant along with his family traveling in the said car driven by his son met with an accident. In the said accident complainant suffered severe injuries including that of fractures. He was admitted to P.S.G. Hospital, Coimbatore. He took treatment at Bangalore Hospital and underwent the surgery for D.C.P. Plating, etc. Complainant did possess the valid and effective driving licence to drive his vehicle. After the discharge from the hospital complainant made a claim to the OP, unfortunately OP repudiated the claim on the ground that the connecting documents are not produced.

Then complainant filed a Complaint No. 542/2008 before the Ist Additional District Consumer Disputes Redressal Forum, which came to be disposed of with certain direction to the complainant to resubmit his claim with relevant documents and OP has to consider the same and settle it within 8 weeks. Though complainant complied all the requirements as per the orders, but OP failed to settle the claim. Thus complainant felt the deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.



2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the Disability Certificate produced by the complainant would not fall in any of the nature of injuries as stated in the policy with respect to section 3 of personal accident cover for owner-driver. After considering all the facts and circumstances and the documents produced, OP has repudiated the said claim well within the stipulated time and intimated the complainant. So there is no deficiency in service of any kind on the part of the OP. The complaint is devoid of merits. The allegations are baseless. Among these grounds, OP prayed for the dismissal of the complaint.



3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.


4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order?

5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Affirmative Point No.2:- Affirmative Point No.3:- As per final Order.


R E A S O N S


6. At the outset it is not at dispute that the complainant is the R.C. Owner of the vehicle bearing No. KG-01-MA-6920 and OP covered the insurance of the vehicle which was valid from 06.04.2005 to 05.04.2006. It is also not at dispute that OP collected Rs.100/- towards the personal accident cover for owner-driver under section 3 of the insurance policy covering the risk of Rs.2,00,000/-. It is contended by the complainant that on 18.07.2005 while himself and his family members traveling in his car which was driven by his son, who possess the valid and effective driving licence met with a road traffic accident and in that accident he has sustained grievous injuries including that of fractures, thus suffered permanent disability. The fact that he took treatment at P.S.G. Hospital at Coimbatore, then underwent surgery at Bangalore for D.C.P. Plating, etc., is not at dispute.


7. Now the grievance of the complainant is that after the discharge from the Hospital he sent the claim to the OP. As per the orders passed by the Hon’ble Ist Addition District Consumer Forum OP is expected to settle the claim within a reasonable time. Though complainant complied all the requirements and produced all the relevant records and documents, OP failed to settle the said claim well within the reasonable time. It is further stated that the so called repudiation letter sent by the OP is an altered and manipulated one. The repudiation is illegal, arbitrary, unjust and without due application of mind. For no fault of his, complainant is made to suffer both mental agony and financial loss.


Though complainant has substantially produced the relevant documents to speak about the permanent disability OP had not considered the same.


8. The evidence of the complainant which finds full corroboration with the contents of the undisputed documents, appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. Of course one of the documents produced by the complainant marked at Exhibit P7 itself shows that the disability is 60%. As against this it is contended by the OP that the so called Disability Certificate produced by the complainant, injuries noted therein would not fall in any of the categories of injuries noted in section 3 of the personal accident cover for owner-driver policy. We do not find force in the said defence. When we go through the policy, terms and conditions and take note of nature of injury, scale of compensation, even for loss of one limb or sight of one eye scale compensation is 50%. When Exhibit P7 shows to the Permanent Disability to the tune of 60%, then OP ought to have considered the claim of the complainant. Under such circumstances the repudiation made by OP appears to be arbitrary.


9. The fact that the complainant is the R.C. Owner of the vehicle having a valid and effective driving licence is not at dispute. There is no such delay caused by the complainant in seeking redressal with regard to the settlement of the claim, but still OP went on technicalities. The hospital records and other connected documents, discharge summary speaks to the nature of grievous injuries suffered by the complainant, the owner-driver of the said vehicle. The content of the documents produced by the complainant are not at dispute. When there is a proof of Permanent Disability, the repudiation made by the OP speaks loudly about the deficiency in service. For no fault of his, he is made to suffer both mental agony and financial loss.


10. We are satisfied that the complainant is able to prove the deficiency in service on the part of the OP. As against the unimpeachable evidence of the complainant, the defence set out by the OP appears to be defence for defence sake, just to shirk their responsibility and obligation. The approach of the OP does not appears to be fair and honest. Under such circumstances we find it is a fit case, wherein the complainant deserves certain relief. Accordingly we answer point nos.1 and 2 and proceed to pass the following:

O R D E R


The complaint is allowed in part. OP is directed to settle the claim for Rs.2,00,000/- and pay the same to the complainant. In view of the nature of dispute no order as to costs. This order is to be complied within 4 weeks from the date of its communication. Failing in which the complainant is entitled to claim interest at the rate of 9% p.a. on Rs.2,00,000/- from the date of repudiation till realization along with a litigation cost of Rs.1,000/-.

Date of Filing:20.12.2008

Date of Order : 11.03.2009

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20

Dated: 11th DAY OF MARCH 2009

PRESENT

Sri. Bajentri H.M, B.A, LL.B., President

Smt.C.V. Rajamma, B.Sc., LL.B., PGDPR, Member


COMPLAINT NO. 2756 OF 2008

Mr.Kanikraj S/o Saravanamurthy,
Aged about 36 yrs, No.50, 13th Cross,
Ejipura Main Road, Bengalooru-560 047.

…. Complainant.

V/s

01. Bajaj Allianz General Insurance
Company Ltd., GE Plaze,
Airport Road, Yerwada, Pune-411 006.
Rep. by its Managing Director.

02. Bajaj Allianz General Insurance
Company Ltd., 105A/107A,
CearsPlaza, 136 Residency Road,
Bangalore-560 025.

03. Bajaj Allianz General Insurance
Company Ltd., No.31, Ground Floor,
TBRTowers, 1st Cross, New Mission Road,
Next to Bangalore Stock Exchange,
Bangalore – 560 024.
Rep. by its Authorized Signatory.

…. Opposite Parties

-: ORDER:-

This complaint is for a direction to the Opposite Party to pay Rs.62,365/- towards damages to the vehicle and to pay Rs.1,00,000/- as compensation for mental agony and physical tension.


2. The case of the complainant is as under:-
He is the absolute owner of the vehicle bearing No.KA:05 MA/523. The said vehicle was insured with Opposite Parties for the period from 07.10.2007 to 06.10.2008. But Opposite Party No.2 has issued the policy in the name of Mr.S.Kaspar Raj S/o Saravana Murthy on payment of Rs.7,391/-. The said Kaspar Raj is the brother of the complainant. The Opposite Party should have issued the insurance policy in the name of the registered owner and not in the name of somebody else. Thus, the Opposite Party has violated the provisions of the Insurance Act and was negligent at the time of issuance of insurance policy without looking into the documents of the vehicle. The vehicle met with an accident on 08.07.2008 near Air Point View “U” Turn on Inner Ring Road, Indiranagar, Bangalore. He claimed damages estimated by Gunaa Motors, No.467, Srinivagilu Main Road, Near Koramangala Ring Road, E.G.Pura, Bangalore at a sum of Rs.62,365/- towards damages to the vehicle in the accident. By the letter dated:06.08.2008, the Opposite Party repudiated the claim on the ground that the vehicle stands in the name of Mr.S.Kanikraj (Complainant) and the insurance policy is issued in the name of Mr.S.Kaspar Raj and therefore there is no existence of Insurable interest at the time of taking the policy as well as at the time of loss. The Opposite Parties have issued the insurance policy on the said vehicle on payment of premium and the policy was valid on the date of the accident. Therefore, the Opposite Parties are liable to pay the damages caused to the vehicle and claimed by the registered owner namely – the complainant. The liability cannot be avoided because the insurance policy is not issued in the name of the registered owner of the vehicle. Issuance of insurance policy in the name of 3rd party is negligent act and deficiency in service on the part of the Opposite Parties. He issued legal notice dated:06.11.2008 demanding Rs.62,365/-. In spite of service of notice, the Opposite Parties neither complied with the demand nor gave reply. Hence the complaint.


3.In the version, the contention of the Opposite Parties is as under:-
There is no contract of insurance existed between the complainant and Opposite Parties. Mr.Kaspar Raj made a proposal of insurance in respect of car bearing No.KA:05/MA/523, the proposal was signed and submitted by him. On receipt of the proposal, the policy of insurance was issued in favour of Mr.Kaspar Raj in respect of the said vehicle for the period from 07.10.2006 to 06.10.2007. During the validity of the insurance policy, the complainant informed that the Car in question sustained damage in an accident and made a claim. On receipt of the information, Mr.M.G.Vijay surveyor was deputed to conduct survey and to submit report. Accordingly on examination of the damaged vehicle, the surveyor submitted the report. On receipt of the surveyor report and other documents, while proceedings the claim, it was noticed that the complainant was not the insured in the policy and the policy under which he was claiming was in the name of Mr.Kaspar Raj. The complainant had not paid any premium and has not obtained any insurance in his name and as such there is no burden on the Opposite Party to provide any service to the complainant. Accordingly, the complainant and the insured were informed that since the contract of insurance is with Mr.Kaspar Raj, the claim made by the complainant cannot be entertained. The transfer of ownership of vehicle is governed by the provisions of GR 17 of Indian Motor Tariff, the transferee shall apply within 14 days from the date of transfer and get the necessary changes made in the policy to get the benefit of claim under “OWN DAMAGE”. Transfer Fee along with proposal form is required to enable the insurance company to transfer the policy in the name of the transferee. The complainant failed to do so and therefore is not entitled for any benefits under the contract of insurance between Kaspar Raj and the Insurance Company. On these grounds, the Opposite Party has prayed for dismissal of the complaint.


4.In support of respective contentions, both parties have filed affidavit and have produced copies of documents. Both parties have filed written arguments.


5. The points for consideration:-
1.Whether the complainant has proved deficiency in service on the part of the Opposite Parties?
2.Whether the complainant entitled to the relief prayed for in the complaint?


6. Our finding to both points is in the NEGATIVE for the following:-

-:REASONS:-

7. From the Xerox copy of the Registration Certificate produced by the complainant it is noticed that one U.Sudhir Rao was registered as owner of the vehicle bearing No:KA-05/MA/523 on 25.07.2000. We are unable to find the name of the transferee including the complainant who had purchased the vehicle subsequent to 25.07.2002. Therefore, the very contention of the complainant that he is the registered owner of the vehicle in question does not find support from the copy of the – Registration Certificate produced by him. The complainant has not disclosed as to the circumstances in which his brother Kaspar Raj had obtained insurance policy for the period from 07.10.2007 to 06.10.2008 in his name. It is not the case of the complainant that as on 07.10.2007, the commencement of the insurance policy Kaspar Raj was the registered owner of the vehicle and therefore he had obtained the insurance policy in respect of the vehicle and subsequent to 07.10.2007 he (complainant) purchased the vehicle from his brother. If the complainant purchased the vehicle from his brother subsequent to 07.10.2007 and was the registered owner as on 08.07.2008 the date of the accident, he was required to inform the insurance company about the purchase of the vehicle and get the insurance policy transferred to his name. That appears to have not been done. From the documents produced by the Opposite Parties it is seen that it was Kaspar Raj who submitted proposal for insurance policy in respect of the vehicle in question and accordingly the insurance policy was issued in his name. If as on the date of the accident, the complainant was the owner of the vehicle, in the absence of insurance policy obtained in his name he was not entitled to make claim with the Insurance Department with regard to the damages caused to the vehicle. Since Kaspar Raj was the insured in respect of the vehicle in question as on the date of the accident, the Opposite Party rightly repudiated the claim made by the complainant on the ground that he was not the insured as on the date of the accident. In these circumstances, we do not find any deficiency in service on the part of the Opposite Parties in repudiating the claim made by the complainant. Since the complainant was not the insured in respect of the vehicle in question as on the date of accident, there was no obligation on the part of the Insurance Company to admit the claim made by the complainant with regard to the damage to the vehicle. Thus, we find no deficiency in service on the part of the Opposite Parties and hold that the complainant is not entitled to the relief prayed for. In the result, we pass the following:-

-:ORDER:-

• The complaint is DISMISSED. There is no order as to costs.
• Send a copy of this order to both parties free of costs immediately.
• Pronounced in the Open Forum on this the 11th DAY OF MARCH 2009.

Sd/- Sd/-
MEMBER PRESIDENT

Consumer Complaint No:692/2006


Between:

Sri Giduturi Ram Murthy, S/o Somulu, Hindu, aged 60 years, R/o 11-39, Old B.R. Palem (Village), Balighattam (P.O), Narisipatnam (M), Visakhapatnam District, presently come down to Visakhapatnam.

… Complainant
And:

1. The Senior Technical Manager, Bajaj Allianz General Insurance Company Ltd., Macmet House, 10/B, OC. Ganguly Sarani (Lee Road), Kolkatta – 20.


2. Golden Trust Financial Services, Rep. by its Divisional Manager, 16, R.N. Mukharji Road, Kolkatta.
... Opposite Parties

This case coming on for final hearing on 31-03-2009 in the presence of Sri.Adari Apparao, Advocate for the Complainant and of Sri. Syed Moinuddin, Advocate for the 1st Opposite Party and Sri. P.Parthasardhy, Advocate for the 2nd opposite party and having stood over till this date, the Forum delivered the following:

: O R D E R :

1.The complainant a resident of B.R.Palem, Visakhapatnam District, obtained Personal Accident Insurance policy in the name of his wife Smt.Venkayyamma, vide policy bearing No.OG-05-2401-9902-00000029, which was valid from 23-06-2004 to 22-06-2005. Unfortunately, the said Smt.Venkayyamma was alleged to have been hit by a buffalo, on 06-09-2004 at around 6.00pm and sustained head injury, due to fall on a rock. She was rushed to King George Hospital, Visakhapatnam, where she was treated for the injury and as her condition was helpless and serious, she was taken back to her native place, where she ultimately died on 07-10-2004. The same fact was intimated to the 2nd opposite party along with copy of the policy, death certificate and doctors treatment copy. Further the 1st opposite party, on 18-05-2005 repudiated the claim, stating that no supporting documents were submitted. The rejection of the claim, inspite of having valid policy amounted to deficiency of service. Hence this complaint, seeking insured amount of Rs.4,00,000/- together with interest @ 18% p.a., from 18-05-2005 till its payment and compensation of Rs.25,000/- towards damages and mental agony, pain and sufferance and costs.



2.The 1st opposite party filed counter naturally denying any liability. While admitting the issue of policy in favour of the complainant’s wife, it is pleaded that the claim of the complainant was based on fake documents created by him with the active assistance of some unscrupulous persons and agent to have a unlawful gain. It is pointed out that there are number of CDs being filed from the same area with the similar cause of action, wherein their Company found the OP ticket as well as the Medical Certificates are created one. For investigation, on the receipt of the claim, their Company appointed an investigator, who verified the OP Ticket with the hospital authorities and found the same to be fake, not having issued by the authorities. There is absolutely no proof that the death was due to injuries sustained in the accident and the investigation revealed that it was a natural death. As there is no proper intimation or furnishing of proper documents, the claim was naturally repudiated in writing by explaining the above reasons. Thus it denied any liability.



3.The 2nd opposite party, which facilitated the issue of Insurance Policy in favour of the complainant’s wife, naturally, took up a plea that it is only a facilitator and liability if any will be that of the 1st opposite party and the claim against it is to be dismissed.


4.At the time of enquiry, both the parties filed affidavits in support of their respective contentions and marked Ex.A.1 to Ex.A.8 for the complainant and Ex.B.1 to Ex.B.5 for the 2nd opposite party and Ex.B.6 to Ex.B.8 for the 1st opposite party. The counsels were heard, who reiterated their respective contentions.


5.Inview of the contentions raised by either side, the point that arises for consideration is :
Whether there is any deficiency of service on the part of the opposite party Insurance Company and the complainant is entitled for any reliefs claimed for?


6. In the claim based on accident Insurance Policy admittedly issued by the 1st opposite party in favour of the complainant’s wife, she was alleged to have died on 07-10-2004 at her house, because of the head injury sustained by her due to fall on rock when hit by buffalo on 06-09-2004. Though the issue of policy is not in dispute, the very cause of death of the insured is in dispute between the parties. While the complainant claims that death was due to injury sustained in accident, , the 1st opposite party Insurance Company denies the same and pleads that it was only natural death. The 1st opposite party even denies that there was accident at all on 06-09-2004 as claimed by the complainant. It repudiated the claim and consequently this complaint by the husband of the insured terming such repudiation as unjustified amounting to deficiency of service.


7. It is the contention of the counsel for the complainant that in the light of Ex.A.3 OP ticket corroborated by Ex.A.7 copy of the OP register, the complainant could establish the accident resulting in head injury to the insured. He also pointed out that the death register extract i.e., Ex.A.7 would prove the death of the insured on 07-10-2004. That in the light of the documentary evidence, 1st opposite party is not justified in repudiating the claim and the complainant is entitled for the relief sought for.



8. On the other hand it is contention of the counsel for the 1st opposite party that the death of the policy holder was only a natural death and the complainant in order to have an un-lawful gain, has come up with false claim with fabricated documents and insufficient evidence. He pointed out that there is correction in the serial number on the OP ticket and moreover the original OP ticket was not produced at all. It is his further contention that even if it is accepted that the complainant’s wife sustained injury on 06-09-2004 and Ex.A.3 OP ticket is genuine, as claimed there is absolutely no material to show that the subsequent death of the insured, one month after the accident, was the result of this injury. He pointed out that as per the contention of the complainant she was taken to the hospital in precarious condition and termed as hopeless and so she was brought back home, but surprisingly she survived for one month which is unbelievable. He also pointed that it is unnatural that the women was not given further treatment anywhere thereafter. He pointed out that there was no postmortem that was done could establish the cause of death, which is quite essential to consider the claim of this nature. Thus he justified the repudiation of the claim by his client. He supplemented his verbal arguments with written arguments also, reiterating the same contentions.



9. The counsel for 2nd opposite party naturally contended that it was only a facilitator in getting the issue of accident policy to the complainant’s wife and nothing more than that and the liability if any, would that of the 1st opposite party only.



10. As can be seen from the above contention, the complainant has to first of all establish his wife met with an accident of falling on a rock, being hit by a buffalo on 06-09-2004. For that, he is solely relying upon a Xerox copy of the OP Ticket. The genuineness of this OP chit is very much in dispute. It is not explained by the complainant as to why the original OP ticket was not produced. Ex.B.5 letter of the 2nd opposite party to the Insurance Company show that it forwarded only Xerox copy of the OP Chit dated 07-09-2004. This falsify the contention of the complainant that the original OP ticket was submitted to 2nd opposite party. Moreover a perusal of the OP ticket, Ex.A.3, would show that Serial No.295898, which was printed, was corrected as 205898, it is not explained as to how and when this correction has been done and it cannot be understood as to why such a correction should be there at all. As per Ex.A.3, on 07-09-2004 when the insured was taken to King George Hospital, Visakhapatnam, this OP chit bearing No. 205898 was issued. The complainant relied upon Ex.A.7 xerox copy of the OP register of the King George Hospital, Visakhapatnam, purported to be dated 07-09-04. But surprisingly it was not attested by the competent authority and it does not have any date also on it. It show that OP ticket with serial No.879 to 968 were issued and S.No.898 was said to be that of G.Venkayyamma, aged 50 years. The covering letter of it reads that Xerox copy of the register showing OP Ticket 205898 dated 07-09-2004 was furnished by PIO, King George Hospital, Visakhapatnam. An envelope in which this copy was said to have been received was filed. Though it was sent on “IGS”, surprisingly it does not contain the service postage, which should be used by the Government Offices, but ordinary postage. This circumstance would throw a doubt as to genuineness of this extract of out patient register. This suspicion is further strengthened in view of the fact that, on summons sent by this Forum to the Superintendent, King George Hospital, Viskahapatnam, the Xerox copy of the OP Register dated 07-09-2004 was furnished and it shows that on 07-09-2004 OP Ticket No. 206047 to 206707 were issued on 07-09-2004. This extract copy, running to 13 pages was attested by the competent authority. This would clearly establish that on 07-09-2004, there was no OP ticket issued by King George Hospital bearing number 205898 and disprove this Ex.A.3. Obviously for this reason the original OP ticket was not produced by the complainant and as a matter of fact, on that ground only the Superintendent of King George Hospital refused to give evidence, in the absence of the original OP ticket, when the Commissioner was appointed by this Forum, approached him in execution of the warrant. Thus in our view Ex.A.3 & Ex.A.7 cannot be accepted as genuine.



11. Even assuming that Ex.A.3 OP ticket is true, it reads that the insured was alleged to have been hit by a Buffalo and fell on a rock resulting in head injury. It further reads that it contains the observation of doctor as to the condition of the patient. It shows the condition of the patient as there was loss of consciousness, vomiting, bleeding from left ear, drowsy and pupils sluggishly reacting, a deep sutured lacerated wound of 10cm x ½ cm size on left fronto – panital area. It also reads that CT Scan of brain was advised and also referred to Nerosurgeon, besides prescribed medicines.


12. The complainant did not examine the Doctor, who examined the patient nor filed his affidavit. Admittedly non of the diagnostic tests prescribed by the Doctor were got conducted by the complainant. Except taking medicines prescribed, obviously for a short period, nothing more was done by the complainant inspite of alleged serious position of the victim which is quite un-natural. This shows negligence on the part of the complainant in getting his wife properly treated for the serious injury sustained by her. As a matter of fact, when she was in a such a serious condition, it is surprising that the victim could survive for one month. Above all, there is absolutely no evidence on the part of the complainant that death was the result of this injury sustained in that accident, as admittedly there was no postmortem examination.


13. Thus in the first instance, absolutely there is no satisfactory evidence to prove that there was an accident and the complainant’s wife sustained head injury in that accident. In the second pace that the death was due to that head injury that too one month after the incident. In such circumstances repudiation of the claim by the 1st opposite party is justified and it cannot be termed as deficiency of service on its part. That being the
case it cannot be mulcted with any liability under the policy and consequently the complainant is not entitled to any relief claimed. Accordingly this point is answered.


14. In the result, the complaint is dismissed. Each party to bear their respective costs. Advocate fees Rs.1,000/- (Rupees one thousand only).

ORDER

By Smt. Padmini Sudheesh, President:

The deceased Kunjukutty Amma the wife of first complainant and the mother of complainants-2 to 8 was a subscriber of Hospital Cash Policy No.OG-04-1602-8411-00000069 and Personal Accident Policy No.OG-04-1602-9902-00000066 issued by the 2nd respondent company through the first respondent. The said policy period was from 6.5.03 to 5.5.04. The certificate number was 2003-14997. The deceased Kunjukutty Amma had undergone treatment eligible for getting the insurance amount and subsequently died. After that the complainants submitted application for getting insurance claim with all documents. The respondent issued acknowledgement slip but the claim was not settled. This shows service deficiency of respondents. So the complainants caused to send a lawyer notice on 19.5.2004. But no remedy so far. Hence this complaint.

2. The counter of first respondent is that first respondent is only an agent of 2nd respondent by whom the insurance policy was issued. After joining the insurance policy the terms and agreement is between the complainants’ predecessor and 2nd party alone and this respondent is not having any role in the consideration of the claim submitted by the complainant. It is the 2nd respondent to indemnify the policyholders upon the terms and conditions. This respondent has no authority over the 2nd respondent and after issuing the policy certificate; the relationship is only between the complainants and 2nd respondent. This respondent does not know whether the first complainant’s wife had hospitalized for treatment or whether the disease was pre-existing. This respondent has not caused any inconvenience or any sort of sufferings to the first complainant’s wife and there is no question of any negligence or deficiency in service from the part of this respondent. As this respondent is an unnecessary party in the petition the O.P. may be dismissed.

3. The averments in the counter of 2nd respondent are as follows: The deceased Kunjukutty Amma had registered the claim with this respondent is false and hence denied. The complainant has not registered his claim with this respondent and is willing to consider the claim of the complainant according to the terms and conditions of the policy, when the claim is registered. The liability of this respondent if any is limited to the terms and conditions of the policy. There has been no deficiency in service on the part of this respondent and hence not liable to pay any cost, interest and compensation to the complainant. Hence dismiss.

4. The points for consideration are:
(1)Is there any deficiency in service?
(2)If so reliefs and costs.
5. The evidence consists of Exts. P1 to P5 and R1 to R6 and R10 on the part of the 2nd respondent and Ext. R7 to R9 on the part of first respondent.

6. Points-1 & 2: The complaint is for reimbursement of medical expenses and death benefit. The legal heirs of the insured filed complaint to get the insurance amount and medical expenses. The deceased Kunjukutty Amma had joined in a Personal Accident Policy together with Hospital Cash Policy. The policy period was from 6.5.03 to 5.5.04. The insured had undergone hospital treatment within the policy period from 12.6.03 to 14.6.03 in Medical College Hospital, Thrissur for fracture trochanter (L) femur following a fall and died on 18.7.03 during the treatment at home. The complainants applied with all relevant documents for the claim and they issued the acknowledgement slip to the complainants. But no amount is provided as per the policy. The respondents filed counter by stating that first respondent is only an agent and they have no role in the consideration of the claim. The version of 2nd respondent is that the claim has not registered with them. As per Ext. P3 the medical certificate issued by the treated Doctor it can be seen that the first complainant’s wife had undergone treatment from 12.6.03 to 14.6.03 for fracture trochanter (L) femur following a fall and treatment continued at home as instructed till her demise on 18.7.03. It is a conclusive proof and no evidence is brought against. Ext. P4 the accident register-cum-wound certificate also supports this view. So according to Ext. P3 and P4 the insured had undergone treatment and was continued treatment and died on 18.7.03 within the treatment out of the fall. Everything was within the policy period. In the counter R1 states that after issuing the policy certificate by second respondent the relationship is only between the insured and the 2nd respondent. More over the first respondent has produced Ext. R7 claim form by which it can be seen that the claim of deceased Kunjukutty Amma along with the claim of some others had already sent to second respondent. Ext. R7 shows the transfer of a sum of Rs.50,000/-. So as a death benefit the complainants are entitled for Rs.50,000/-. As per Ext. P1 the complainants are also entitled for medical expenses. As per Ext. R3 there were medical expenses of Rs.1402/- only. No other document produced to show any further expenses. So the complainants are entitled to get this amount only.

7. One more point to be discussed is the pre-existence of disease. As per Ext. R9 the claim was repudiated by the 2nd respondent by stating pre-existence of disease. No such contention is raised in the counter by second respondent and so we are not discussing more. But from the records it is evident that the treatment and death all are well within the policy period.

8. In the result, complaint is allowed and the second respondent is directed to pay to the complainant Rs.50,000/- (Rupees fifty thousand only) with interest at the rate of 12% per annum from the date of complaint till realization and further directed to pay the amount stated in Ext. R3 as medical expenses with cost Rs.1000/- (Rupees one thousand only) within one month.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 23rd day of April 2009.

COMPLAINT NO. 2526 OF 2008

Doraswamy .K
S/o K.Rangappa,
R/at No.461,
RudrappaBuilding,
Opp.Kudlu Bus Stop,
Madivala,
Bangalore – 068.

…. Complainant.

V/s

BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD., Having its registered
Office at GE Plaza, Airport Road,
Yerwada, PUNE – 411 006.

And

The Bangalore Branch Office
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD., #31, J.C.Road, TBRTowers,
Ground & Mezzinene Floor,
I Cross, (New Mission Road)
Bangalore – 002.

…. Opposite Parties

-: ORDER:-

The complainant has prayed for a direction to the Opposite Party to pay Rs.55,816/- towards repairs to the insured vehicle.
2.The case of the complainant is as under:-
The complainant is a registered owner of motor car bearing registration number KA:51-6183 and the said vehicle was insured with the Opposite Party for the period from 27/09/2008 to 26/09/2009. The complainant had paid the premium by cheque drawn on IDBI Bank, but the Opposite Party presented at a later date than the due date and therefore the cheque was bounced. The complainant remitted the premium amount on 13/10/2008. Apart from premium of Rs.12,514/- covered by the cheque, the Opposite Party also collected Rs.250/- towards Bank Charges. He had sufficient balance in his account till 06/10/2008. The vehicle met with an accident on 13/09/2008 and sustained severe damages. The vehicle was left with Concorde Service Centre at Bangalore for repairs and the Opposite Party was intimated regarding the accident. A representative of the Opposite Party came to the service center and did the paper work for answering the claim of damage to the vehicle. After the inspection procedure was completed the representative of the Opposite Party consented to carry out the repairs. The service centre repaired the vehicle and raised bill for Rs.55,816/-. When the claim was made, the Opposite Party refused to entertain the same on the ground that the cheque issued for premium was bounced. On 22/10/2008 he paid Rs.55,816/- to the service center and took delivery of the vehicle. He visited the office of the Opposite Party frequently, but on every visit, he gets different answers and the claim has remained unanswered. Hence, the complaint.
3.In the version, the contention of the Opposite Party is as under:-
The allegation in the complaint did not constitute any deficiency in service. As on 13/09/2008 the date of the accident, the Opposite Party was not the insurer of the vehicle in question and there was no contract of insurance between the parties as on the date of accident namely 13/09/2008. The complainant approached the Opposite Party seeking insurance coverage to the Car from 27/09/2008 to 26/09/2009 and issued the cheque dated: 26/09/2008 for Rs.12,514/- and paid Rs.250/- towards Bank charges. Thereupon the cover note bearing No.BZ0800877264 was issued for the period from 27/09/2008 to 26/09/2009 subject to realization of the cheque issued towards premium. The cheque was presented through HDFC Bank for clearance and the same returned unpaid with endorsement “Insufficient Funds”. On receipt of the endorsement, the policy was cancelled from the date of its inception namely 27/09/2008. Therefore, they are not liable to pay Rs.55,816/- towards damage to the Car. On these grounds, the Opposite Party has prayed for dismissal of the complaint.
4. In support of the respective contentions both parties have filed affidavits and have produced copies of documents. We have heard the arguments on both side.
5. The points for consideration are:-
1.Whether the complainant has proved deficiency in service on the part of the Opposite Party?
2.Whether the complainant entitled to the relief prayed for in the complaint?
6. Our findings to both points is in the NEGATIVE for the following:-

-:REASONS:-

7. Though in the complaint the date of the accident is mentioned as 13/09/2008 the same appears to be a mistake because in the affidavit filed in lieu of evidence, the complainant has stated that the vehicle met with an accident on mentioned as 30.09.2008. In the copy of the FIR also the date of the accident is 30/09/2008. Therefore, ignoring the mistake with regard to the date of accident as mentioned in the complaint we have to proceed on the basis that the accident had taken place on 30/09/2008. The fact that the complainant had obtained insurance coverage to the vehicle for the period from 27/09/2008 to 26/09/2009 and had issued a cheque towards premium is admitted. In the copy of the cover note, it is mentioned that the cheque issued by the complainant was dated:26/09/2008 and it was drawn at IDBI Bank. The complainant also admits that the cheque on presentation to Bank for collection was dishonored for want of sufficient funds in his account, and thereupon he made payment towards premium on 13/10/2008. The payment made by cheque towards premium is always subject to the realization of the cheque. Therefore, even if in the cover note or insurance policy is issued before the realization of the cheque, the cover note or the insurance policy becomes valid only if the cheque is honored and the payment is received by the Insurance Company towards premium. If the cheque is dishonored, the insurance policy stands cancelled from the very inception. When the complainant had issued cheque towards the premium and the cheque was dated:26/09/2008 he was supposed to maintain sufficient balance in his account as on the date of the cheque and for some reasonable time subsequent to the date of the cheque. From the Bank statement produced by the complainant for the period from 15/09/2008 to 15/10/2008 pertaining to his account it is noticed that as on 25/09/2008 there was only balance of Rs.6,097/- available in his account. Even as on 30/09/2008 the amount available in his account was not sufficient to honor the cheque for Rs.12,514/-. The amount available in the account to cover the cheque amount is only on 01/10/2008 and 02/10/2008 and on the subsequent dates the amount available in the account of the complainant is less than the cheque amount. In these circumstances, the complainant cannot find fault with the Opposite Party for not presenting the cheque on the due date itself. When once the cheque was bounced, no premium was paid for the insurance cover note and as such the insurance cover note became void from the very inception. Admittedly the complainant made payment towards premium on 13/10/2008 by which time the policy was cancelled by the Opposite Party for non payment of the premium. Therefore as on 30/09/2008 the date of the accident, there was no contract of insurance between the parties to cover the risk regarding the damage to the vehicle. As such the Opposite Party rightly declined to admit the claim made by the complainant for want of insurance coverage during the period. This act of the Opposite Party will not amount to deficiency in service and as such the complainant is not entitled to the relief prayed for in the complaint. In the result, we pass the following:-

-:ORDER:-

• The complaint is DISMISSED. No order as to costs.

Complainant:

K.S. Yateesh
S/o. Late K.S. Shivanna
Residing at 74/1
17th ‘A’ Cross
8th Main, 4th Stage, 4th Block
Basaveshwar Nagara
Bangalore- 560 074



/vs/




Opposite Party:


The Regional Manager
Bajaj Alianz General Insurance Company Ltd.,
No.31, Ground Floor, T.B.R. Tower
1st Cross, New Mission Road
Adjacent to Jain College
J.C. Road
Bangalore- 560 002


O R D E R



SRI. G. SIDDANAGOUD, PRESIDENT:

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the Opposite party (Op in short) for the compensation of Rs.56,000/- with interest, costs and for such other reliefs.

The brief facts of the case are that the complainant issued a cheque bearing No.00051394 dated 18/04/2008 for sum of Rs.8,000/- drawn on Canara Bank, Basaveshwara Nagara Branch, Bangalore in favour of Op towards renewal of Insurance Policy in respect of the vehicle Mahindra Scorpio bearing No.KA-02 MF6000 which expires on 19/04/2008. The cheque was personally collected by one Sri. Santhosh, Business Development Officer of Op Company. The bank statement of complainant shows that the amount drawn on the cheque has been credited to Ops account on 24/04/2008. The Op has not issued insurance policy after receipt of cheque and thereafter amount credited to Ops account. On account of expiry of the insurance policy on 19/04/2008 complainant could not use the vehicle since the date of expiry of the insurance. The complainant depended on private service vehicle and spent Rs.2,000 to 3,000 everyday for his conveyance and met great inconvenience.

The Op negligent in discharge of his duties. The business development offer of Op Company has not presented the cheque which was collected by him on 18/04/2008. They presented the cheque belatedly and amount was credited to Op company account on 24/04/2008. Thereafter also the company has not issued the policy. The complainant issued the legal notice dated 7/05/2008. The OP received the notice on 12/05/2008. Thereafter Op issued the policy. Same has been received by the complainant on 16/05/2008. The Op very negligent in discharging their duties to issue the insurance policy certificate immediately after receipt of cheque or payment of premium amount. Hence the complainant approached this forum.

Op appeared through its counsel, filed its version and also gave evidence by way of affidavit. Complainant gave his evidence by way of affidavit. Counsel of complainant submitted his written arguments and learned counsel for Op submitted his arguments.

This complaint is filed for the delay in sending the policy after collecting the premium. It is an admitted fact that the amount of Rs.8,000/- was received by the Op towards the insurance premium. According to learned counsel for OP, the complainant was to pay Rs.84/- towards balance amount in respect of premium and the policy was not issued due to non-payment of the said amount inspite of several intimation given to the complainant. But the same was denied by the complainant. When the complainant has paid Rs.8,000/- towards premium Rs.84/- was not a big amount to him. The Op has not produced any supporting evidence to show that it has intimated the complainant towards balance amount. When the OP has collected an amount of Rs.8,000/- and if any balance is due it has to intimate to the parties within time because the complainant can not use the vehicle without insurance after its expiry. Till the issue of legal notice, the OP kept quite and after receipt of legal notice only it has issued the policy. The OP has issued a receipt for Rs.8,000/- on 22/04/2008 and for Rs.84/- on 07/05/2008, on the date of legal notice. The complainant denied for having paid the amount of Rs.84/-. This shows after receipt of legal notice in which the Op issued the policy and for its office purpose and protect its claim it has issued the receipt, even though it has not received the amount. The complainant has to keep the vehicle idle for 28 days without insurance policy. This sort of an act on the part of the Op definitely amounts to deficiency in service on its parts.

The complainant has claimed Rs.56,000/- @ Rs.2,000/- per day for 28 days and he has spent that amount towards taking service of the public vehicle. The complainant has not produced any receipts or documents to show that he has spent so much of amount towards expenses. However, the complainant is entitled for reasonable compensation for the delay in sending the policy by the OP.

In view of the discussions made above, we are of the opinion that the complainant has proved the deficiency in service on the part of the OP. Accordingly, we pass the following order.

O R D E R

Complaint is allowed. Opposite party is directed to pay an amount of Rs.2,000/- (Rupees Two Thousand only) to the complainant towards compensation with cost of Rs.500/- (Rupees Five Hundred only) and this amount is to be paid to the complainant within six weeks from the date of this order.

Shri Manohar Dessai,
Represented through his Power of Attorney
Smt. Mamta M. Dessai,
R/o. H.No. 24/3, Gawwadda,
Xelvona, Curchorem Goa. ….. Complainant

V/s.

Bajaj Allianz General Insurance Co. Ltd.
O/a. 3C & 3D, “Sesa Ghor”,
Patto Plaza, EDC Complex,
Panaji Goa. ….. Opposite Party


Advocate Shri Ravindra F. Ayir for the Complainant
Advocate Shri Emerico Afonso for the O.P.

Dated: 07/04/2009

O R D E R

(Per Smt. Kala P. Dalal, Member)

By this Order we shall dispose of the Complaint dated 17.05.2007 filed by the Complainant herein against the Opposite Party (O.P.) herein U/s. 12 of the Consumer Protection Act, 1986.

The brief facts of the case are:-

1.The Complainant had purchased a Maruti Van bearing Registration No.GA-02/S-0826 and the same was insured with the O.P. under Policy No. BA 10431321 which was valid from 11/8/2005 to 10/8/2006.
…2/-
2.The Complainant states that on 26/10/2005 the said Maruti Van met with an accident while proceeding from Margao to Panjim as one tipper truck dashed to this vehicle due to which the maruti van fell down on the ground on the katcha road to the left side of the road, and got completely damaged. The occupant of the maruti van got serious injuries, including the Complainant and one Smt. Laxmi Amonkar who was sitting on the backside of the seat expired due to serious injuries sustained by her in the said accident.

3.The Complainant after the occurrence of the said accident lodged the claim with the O.P. in the month of March 2006 for an amount of Rs. 2,00,000/- (Rupees two lakhs only) which was registered under No. OC-07-1703-1801-00000580, along with the relevant documents such as disability certificate etc.

4.The Complainant further states that even after repeated inquires with the O.P they did not settle his claim and on 26/3/2007 he received a letter stating that his claim is repudiated on the ground that the current disability is not due to the aforesaid accident and is pre-existing ailment prior to the occurrence of the mishap.

5.Based on the said cause of action the Complainant has filed the present complaint with the following reliefs.

a)Order may be passed directing the O.P. to pay to the Complainant a sum of Rs.2,00,000/-alongwith interest at the rate of 18% p.a. on the said amount of Rs. 2,00,000/- from March 2006 till the date of actual payment.

….3/-
b)Order may be passed directing the O.P. to pay to the Complainant an amount of Rs. 20,000/- towards damages, mental agony and harassment.
c)Order may be passed directing the O.P. to pay to the Complainant an amount of Rs. 20,000/- towards the cost of the present proceedings.
d)Any other order may be passed as this Hon’ble Tribunal deems fit and proper in the facts and circumstances of the present complaint.

On issuance of summons/notices from this Forum the O.P filed their Written Version inter-alia opposing the case of the Complainant on the following amongst other grounds:

1)The O.P has denied the case of the Complainant on the ground that the disability certified by the doctor and the medical records of the Complainant, are contrary to one another, as the medical records disclosed the treatment given to the Complainant in the year 2004, 2005 and 2006 and the certification of the disability due to the accident on 26/10/2005 cannot be accepted as the very medical case papers for the alleged injuries are from the year 2004.

2)the O.P further say that the claim for compensation is admissible only if the disability is 100% and not 90% and it has also to be proved that the disability is out of the injuries suffered in the alleged accident and hence prayed for the dismissal of the complaint.

The Complainant thereafter filed his Affidavit-in-evidence along with other witnesses in support of his case. The O.P thereafter filed their Affidavit-in-evidence through their Asst. Technical Manager. Both the parties filed their written arguments.

On perusal of the entire evidence on record of both the parties, the documents on record and the written as well as oral submissions of the both the parties, we now proceed to examine the issues arising out of the facts and circumstances of the present case as would contain hereinafter:

1)The Complainant has produced on record the Certificate-cum-Policy schedule issued by the O.P, Hurt Certificate dated 26/10/2005, C.T Scan report dated 08/05/2006, Disability Certificate issued by the Dept of Neurosurgery Goa Medical College, Bambolim and other relevant documents, along with the Affidavits-in evidence of the expert witness Dr. Ponraj K. Sundaram, and other witnesses. The said expert witness in his Affidavit-in-evidence at para nos. 3 and 4 has stated “that the said Manohar Desai was brought to the casualty in an unconscious state and he had suffered serious head injuries. His Glasgow coma scale on admission was 05/15.CT Brain showed evidence of multiple contusion in supratentorial neuroparenchyma 2.1 x 3.7 x 3.7 cm in right basitemporal extending to the right temporal region, evidence of blood interhemispheric fissure in right occipital and temporal horns. Evidence of SAH in right parietal region, evidence of 5mm contusion in mid brain, right side fracture zygoma with communicated fracture right temporal region. He also stated that after follow up and repeat CT Scan showed the evidence of Gliotic area in right temporal with exvacuo dilatation of right temporal horn and evidence of fracture of right temporal bone .”
2)The said witness has also stated at para 6 of his Affidavit-in-evidence that “I issued disability certificate dated 22.06.2006 to the Complainant. I further say that as on the said date the Complainant was suffering from 90% of disability. In the said disability I have also made a note stating that the patient is not fit to resume his earlier occupation as a driver and the calculated disability is permanent which is consequent to the head injury.”

3)Whereas it is the contention of the O.P that as per the policy schedule the compensation is payable for
i. Death … 100%
ii. Loss of two limbs or sight of two eyes … 100%
Or one limb and sight of one eye
iii. Loss of one limb or sight of one eye … 50%
iv. Permanent total disablement … 100%

On analyzing the evidences of both these witnesses we consider that if the patient is not fit to resume his earlier occupation as a driver due to the accident, the same can attributed as permanent total disablement as referred in the personal accident benefit cover of the O.P, and hence we are of the opinion that the comp has rightly succeeded in proving that repudiating the claim of the complainant amounts to deficiency-in-service as defined under Consumer Protection Act, 1986 and hence we pass the following Order:

O R D E R
It is hereby Ordered that the Complaint filed by the Complainant is herby partly allowed in terms of prayer. The O.P is hereby directed to pay the Complainant a sum of Rs. 2,00,000/- (Rupees two lakhs only) along with interest at
…6/-
rate of 8% p.a on the said amount of Rs. 2,00, 000/- from March 2006 till the date of actual payment. The O.P. is also directed to pay a sum of Rs. 5000/-(Rupees five thousand only) as the cost of this complaint.

Bachina Bulli Babu,

S/o Venkata Rao,

Aged about 25 years,

J.Panguluru Village and Mandal,

Owner of the Tractor and Trailor,

Bearing No.A.P.27 E/T/H. 7395,

Prakasam District. ... Complainant.



Vs.



The Branch Manager,

Bajaj Alianz General Insurance Company Ltd.,

Reddamma Complex, Court Street, Ongole. …Opposite party.


ORDER:



1. This is a complaint filed by the complainant under Section 12 of Consumer Protection Act, 1986 against the opposite party.



2. The averments in the complaint are as fallows: The complainant purchased Mahendra and Mahendra Tractor bearing No.A.P.27E/T/R-7395 on 09.08.2007 for Rs.3,40,000/- from Pioneer Auto Service, Ongole and using the same for agricultural purposes. On 16.12.2007 the complainant and the tractor driver went to Gangavaram to bring subabul trees and at about 6.30 p.m. when the tractor reached Rathaiah Hotel near Raningavaram village on NH.5 road, the lorry bearing No.A.P.7V-5828 driven by its driver in a rash and negligent manner dashed against the tractor and as result the tractor was fully damaged. The accident occurred due to the rash and negligent driving of the lorry driver. A case was registered against the lorry driver in J. Panguluru Police Station. The tractor was insured with the opposite party and the policy was inforce from 09.08.2007 to 08.08.2008. The complainant informed about the accident to the opposite party and sent the vehicle to the showroom of the opposite party for estimation of damages. The works Manager Pioneer Auto service estimated the damage as Rs.1,21,988/-. But, the opposite party refused to pay the entire estimated amount and excluded certain parts. The complainant got the tractor repaired with Pioneer Auto service and paid Rs.74,400/- towards repairs and got the vehicle released. Inspite of several demands the opposite party fail to pay the bill amount of Rs.74,400/- to the complainant. Further, the tractor was in the work shop for three months causing loss of income of Rs.30,000/- to the complainant. Non payment of damages amounts to deficiency in service on the part of the opposite party. Hence, the complaint.



3. The opposite party filed its counter contending as fallows: It is true that the complainant insured his vehicle i.e., tractor bearing registration No.AP 27 E T/R 7395 with the opposite party for the period valid from 09.08.2007 to 08.08.2008. The complainant informed the opposite party about the accident and the opposite party appointed an independent surveyor to assess the loss. In the mean time the opposite party appointed an independent investigator to ascertain the facts and independent investigator after through investigation stated that at the time of accident the complainant who is not having valid driving licence was driving the tractor along with three other persons on the tractor. Therefore, the claim of the complainant was repudiated as he was not holding any driving licence to drive the said tractor and the same was intimated to the complainant. The other allegations made in the complaint are all false. In the above circumstances, the opposite party is not liable to pay any amount to the complainant and prays the forum to dismiss the complaint.



4. On behalf of the complainants Exs.A1 to Ex.A6 were marked. The Ex.A1 is the Invoice dated 09.08.2007. Ex.A2 is the Copy of the Motor vehicle cover note dated 09.08.2007. Ex.A3 is the Copy of the Driving Licence. Ex.A4 is the Job Estimation Form dated 03.01.2008. Ex.A5 is the Bill dated 08.03.2008. Ex.A6 is the Charge Sheet dated 27.01.2007. No documents are marked on behalf of the opposite party.



5. The point for consideration is whether the complainant is entitled for the reliefs in the complaint.



6. It is not in dispute that the complainant is the owner of tractor bearing No.AP 27 E T/R 7395 and the same was insured with opposite party for the period valid from 09.08.2007 to 08.08.2008. Ex.A1 is the Invoice and Ex.A2 is the Copy of the cover note.



7. The case of the complainant is that on 16.12.2007 the complainant along with the driver of the tractor went to Gangavaram to bring subabul trees and while they were returning to J. Panguluru with subabul trees and at about 6.30 p.m. when the tractor reached Rathaiah Hotel near Raningavaram village on NH.5 the lorry bearing No.AP 7V 5828 driven by its driver in a rash and negligent manner dashed against the tractor and as a result the tractor was fully damaged. It is the further case of the complainant that he got the tractor repaired by spending Rs.74,400/- and the opposite party fail to pay the said amount and hence he filed complaint.



8. The opposite party contented that at the time of accident the complainant who has no valid driving licence to drive the tractor was driving the vehicle and therefore the opposite party repudiated the claim and informed the same to the complainant and as per policy conditions the complainant is not entitled to the damages claimed in the petition. According to the opposite party they appointed an independent investigator to investigate into the cause of accident and the investigator after through investigation stated that at the time of accident the complainant was driving the vehicle. But, the opposite party fails to produce the report submitted by the independent investigator. On the other hand, the documents i.e., Ex.A6 charge sheet and Ex.A3 copy of the driving licence produced by the complainant show that at the time of accident the driver Chinnam Venkata Subba Rao was driving the tractor and that he was having valid driving licence to drive such vehicle. In the absence of any other evidence from the side of the opposite party, I have to hold that the driver was driving the tractor and not the complainant as alleged by the opposite party. It is the further case of the opposite party that the driver allowed 4 persons to travel on the tractor in violation of the provisions of MV act and MV rules. It is not the case of the opposite party that the accident occurred due to carrying 4 persons on the tractor. As per the charge sheet the accident occurred only due to the rash and negligent driving of the opposite lorry driver. Therefore, on this ground the opposite party cannot repudiate the claim of the complainant.



9. The complainant got the tractor repaired with the authorized dealer i.e., Pioneer Auto service, Ongole by paying Rs.74,400/-. The opposite party contended that the independent surveyor appointed by them assessed the loss as Rs.55,000/-. But, the report of the surveyor is not filed into court. The policy was inforce as on the date of accident. Therefore, the opposite party is liable to pay Rs.74,400/- to the complainant. So far as loss of income for 3 months claimed by the complainant is concerned it is only imaginary and not supported by any evidence and therefore the complainant is not entitled to claim the same.



10. In the result, petition is allowed directing the opposite party to pay Rs.74,400/- together with interest @ 9% p.a., from the date of petition till realization and also to pay Rs.5,000/- as compensation for mental agony and Rs.1,000/- towards costs of litigation to the complainant.

1. Naladala Bapaiah, S/o. Subba Rao,

2. Naladala Chenchu Ramaiah,
S/o. Subba Rao,
R/o. Chirikurapadu village,
Zarugumalli Mandal,
Prakasam District. ... Complainants.

Vs.

1. M/s. Bajaj Allianz General Insurance Co. Ltd.,
2nd Floor, Peejay Plaza, VIP Road,
CBM Compound, Visakhapatnam.

2. The Auction Superintendent, Tobacco Board,
Auction Platform No.24, Tangutur Village
and Mandal, Prakasam District. …Opposite parties.

ORDER:

1. This is a complaint filed by the complainants under Section 12 of Consumer Protection Act, 1986 directing the opposite parties to pay Rs.1,00,000/- together with interest @ 24% p.a., from the date of incident till realization and also to pay compensation of Rs.50,000/- towards mental agony and costs of litigation.

2. The averments in the complaint are as fallows: The complainants are the owners of Tobacco Barn Bearing No. TB 25-009-052 and the same was insured with the 1st opposite party under Group Personal Accident and Fire Policy dated 23.08.2007. The said barn was fully damaged due to heavy downpour occurred on 22.06.2007 and the same was informed to 2nd opposite pary and the 2nd opposite party intimated the said fact to the 1st opposite party on 26.06.2007. The complainants contacted the 1st opposite party to settle the insurance claim and the 1st opposite party appointed a surveyor to assess the damage. Believing the words of the 1st opposite party that they would settle the claim within a short period the complainants reconstructed the barn by incurring expenditure of Rs.1,00,000/-. Inspite of several demands and legal notice the 1st opposite party fail to pay the insurance amount to the complainants. It amounts to deficiency in service on the part of the opposite parties. Hence, the complainants are constrained to file the present complaint.

3. The 2nd opposite party did not choose to contest the matter and remained ex-parte.

4. The 1st opposite party filed its counter contending as fallows: It is true that the 1st opposite party issued policy bearing No.OG-07-1804-5001-0000586 for the period valid from 19.10.2006 to 18.10.2007 and the said policy is a Farmer’s Package Policy issued in favour of the 2nd opposite party under the terms and conditions there of. The complainants informed the 1st opposite party that their barn was damaged due to heavy rains on 22.06.2007 and 23.06.2007. On receipt of the claim intimation the opposite party appointed an independent surveyor to assess the loss. As per the terms and conditions of the policy, the policy covers damage due to storm, cyclone, typhoon, tempest, hurricane, Tornado and inundation. But in the present case the barn was damaged due to heavy rains, which is not covered as per the terms and conditions of the policy. The independent surveyor assessed the damage as Rs.19,300/- after deducting the policy excess amount of Rs.10,000/-. Since the damage was due to heavy rains and not covered by the terms and conditions of the policy the complainants are not entitled to claim any amount from the 1st opposite party. In the above circumstances, the 1st opposite party prays the forum to dismiss the complaint with costs.

5. On behalf of the complainants Exs.A1 to Ex.A3 were marked. The Ex.A1 is the Certificate dated 09.05.2008 by the Auction Superintendent, Tobacco Board, Guntur. Ex.A2 is the Certificate dated 09.05.2008 by the Auction Superintendent, Tobacco Board, Guntur. Ex.A3 is the Legal Notice dated 26.05.2008.

6. On behalf of the 1st opposite party Exs.B1 to Ex.B4 were marked. Ex.B1 is the Policy Schedule, Standard Fire and Special Perils Policy. Ex.B2 is the Surveyor report dated 15.09.2007 and Photo of the damaged barn. Ex.B3 is the Regd. Reply Lawyer Notice dated 06.06.2008. Ex.B4 is the Letter dated 29.09.2007 by the India Metrological Department Cyclone Warning Centre.

7. The point for consideration is whether the complainants are entitled for the reliefs in the complaint.

8. It is not in dispute that the complainants are the owners of a Tobacco Curing Barn Vide TB No. 25-009-052 and the said barn was insured with the 1st opposite party under Group Personal Accident Policy and Fire Policy under Policy No.OG-07-1804-5001-00000586. The policy was inforce from 19.10.2006 to 18.10.2007. It is also an admitted case that the barn was fully damaged due to downpour occurred on 22.06.2007 and 23.06.2007.

9. The case of the complainants are that they informed the 1st opposite party about the damage and the 1st opposite party promised to settle the claim and appointed a surveyor to assess the damage. Believing the words of the 1st opposite party that they would settle the claim the complainants reconstructed the barn spending Rs.1,00,000/-. But, the 1st opposite party fail to settle the claim and pay the insurance amount inspite of several demands and legal notice. Hence, they filed the complaint.

10. The 1st opposite party contended that in the present case, barn was damaged due to heavy rains and as per policy conditions policy covers damage due to storm, cyclone, typhoon, tempest, hurricane, Tornado and inundation and does not cover damage due to heavy rains and therefore 1st opposite party is not liable to pay any amount to the complainants.

11. In support of their contention the 1st opposite party produced Ex.B4 report of Metrological Department, Visakhapatnam. A perusal of Ex.B4 report show that a depression was formed over West Central Bay of Bengal on 21.06.2007 at 8.30 A.M and intensify into deep depression by 5.30 P.M and crossed the A.P Coast close to Kakinada on 22.06.2007 at 4.30 A.M. Signal No.3 was hoisted at Vadarevu Port, in Prakasam District from 21.06.2007 to 23.06.2007. From the report it is clear that it was not monsoon rain that occurred on 22.06.2007 and 23.06.2007 and the downpour was only due to cyclone storm and therefore the policy covers the damage occurred to the barn.

12. In the present case, the 1st opposite party appointed a surveyor to assess the loss and the surveyor inspected the damaged barn and assessed the loss and filed his report. The complainants have not taken any steps to get the loss assessed. In the absence of any other evidence from the side of the complainants, the forum can take into consideration the report of the surveyor while assessing the loss.

13. Ex.B2 is the survey report. In his report, the surveyor stated that the tobacco barn was constructed with H.B.G stone with mud and bricks with mud mortar in the year 1990 and on account of heavy rains followed by gale on 22.06.2007 and 23.06.2007 due to the depression formed in the West Central Bay of Bengal the barn was damaged. He assessed the loss as Rs.61,600/-, but deducted 50% towards depreciation. As per the survey report, bricks and mud mortar was used for construction of the walls. Some useful bricks taken from the damaged walls can be used for reconstruction. But, mud mortar may not be useful for reconstruction. Therefore, deduction of 50% towards depreciation is not reasonable. I am of the opinion that, it is reasonable to allow 30 % towards depreciation. If 30% is deducted the loss works out to Rs.61,600/- - Rs.18,480/- = Rs.43,120/-. As per the terms and conditions of the policy, the policy does not cover the first Rs.10,000/- for each and every loss arising out of other perils in respect of which the insured is indemnified by this policy. The excess shall apply per event per insured. Therefore, after deduction of policy excess amount of Rs.10,000/- the loss works out to Rs.43,120/- - Rs.10,000/- = Rs.33,120/-. This is the amount the complainants are entitled to receive from the 1st opposite party.

14. In the result, petition is allowed in part directing the 1st opposite party to pay Rs.33,120/- along with interest @ 9% p.a., from Two months after the report of the surveyor i.e., from 15.11.2007 till the date of payment to the complainants. The complainants are also entitled to receive Rs.2,000/- as compensation towards mental agony and Rs.1,000/- towards costs of litigation. The petition against the 2nd opposite party is dismissed without costs.

Padiripatla Ravi,
S/o. Krishnaiah,
Hindu, aged about 36 years,
C/o. P. Kesavulu,
Resident of D.No.7-271, Raghavendra Nagar,
Satyanarayanapuram, Tirupati. …. Complainant

And
1. The General Manager,
M/s. Bajaj Allianz Insurance Co. Ltd.,
Regd. Office : G.E. Plaza, Airport Road,
Yerawada, PUNE – 411 006.

2. The Regional Manager,
M/s. Bajaj Allianz Insurance Co. Ltd.,
No.32-21, Ashok Plaza, Weik Field, Nagar Road,
Viman Nagar, PUNE -14.

3. The Manager,
UTI Bank, Now changed its name as Axis Bank,
Opp. to Railway Station,
Chittoor.

4. The Manager,
M/s. Axis Bank, Formerly known as UTI Bank,
Opp. Municipal Corporation Office,
Tilak Road, Tirupati. …. Opposite parties

ON BEHALF OF THE BENCH


This complaint is filed under Section 12 of Consumer Protection Act, 1986 to pass an order directing the opposite parties 1 and 2 to pay a sum of Rs.52,311/- towards the amount spent for medicines, to pay a sum of Rs.8,239/- spent towards transportation charges, to pay a sum of Rs.10,000/- spent for extra nourishment, to pay a sum of Rs.30,000/- towards deficiency in service, to pay a sum of Rs.20,000/- for mental agony and also to pay costs of Rs.3,000/- to the complainant and to pass such other order or orders as the as the Hon’ble Forum may deem fit and proper in the circumstances of the case.



2. The factual matrix leading to filing of this complaint is set out as here under:


(a) It is the case of the complainant that he wanted to open savings bank account in 3rd opposite party bank and approached it. The third opposite party bank officials told to the complainant that in order to open a account in its bank, the customer / complainant has to take UTI Individual Health Insurance Policy.

The complainant agreeing to the said proposal and paid a sum of Rs.114/- initially for opening savings bank account bearing No.27501010026266 INR and also subsequently paid a sum of Rs.1,140/- towards the said health insurance policy. The third opposite party bank is having its branch at Tilak road, Tirupati. The complainant, further in para 4 of the complaint alleged that the third opposite party is a banking company running its business under the name and style of Axis Bank formerly known as UTI bank and having its branch at Chittoor. The opposite parties 1&2 are the insurance companies running their business under the name and style of M/s. Bajaj Allianz Insurance Co. Ltd., having their regd. and regional offices at Pune as described above in para 2 of the complaint. That the opposite party No.3 and opposite parties 1&2 had business agreements inter se and as such opposite party No.3 had undertook the business of insurance and the complainant having agreed to open savings bank account had taken Individual Health Insurance Policy with opposite parties 1&2.

That the first opposite party had issued Health Insurance Policy in the name of the complainant vide policy No.OG-07-1901-9961 00044129. The savings bank account pass book and insurance policy and medical records and bills and other relevant documents (Xerox copies) are appended to the annexure which may be read as part and parcel of this complaint. The complainant alleged that the original documents were sent to second opposite party claiming insurance and they are in custody and possession of second opposite party.


(b) The complainant had a health problem and so he went to SVIMS, Tirupati for medical checkup and took treatment on 30.11.2006. He was actually suffering from nuchal pain and left arm pain since 2-3 days and he could not move his head freely. He was admitted in SVIMS on 30.11.2006 and was discharged on 18.12.2006 and spent a sum of Rs.52,311/- only for medicines and spent a sum of Rs.8,250/- for transportation and extra nourishment spent a sum of Rs.10,000/-. Thereafter complainant also approached CMC Vellore Hospital for evaluation. The said hospital authorities addressed a letter of claim to the first opposite party authorities (annexure 5 &7). Later the complainant also sent a claim for reimbursement on 30.12.2006. When the claim is not settled, the complainant got issued legal notice on 31.12.2007 (and the said legal notice is misplaced and not traced).

The first opposite party gave a reply notice on 11.01.2008 denying the claim on technical grounds which are not legal, valid and tenable under law, since the complainant had suffering only 2-3 days and went for treatment to SVIMS hospital, Tirupati prior to his admission in SVIMS, i.e., on 30.11.2006.The opposite parties 1&2 ipso jure are held liable for the insurance claim. The repudiation of the claim of the complainant who had valid health insurance policy with opposite parties 1&2 on flimsy and technical grounds is not legally valid and tenable and also on the other hand it constitutes deficiency of service and as such the complainant is claiming a sum of Rs.30,000/- under the head of deficiency of service. Owing to the repudiation of the insurance claim of the complainant by opposite parties 1&2, the complainant had undergone worry, mental agony and suffering both physical and as well as mentally and as such opposite parties 1&2 are liable to pay compensation to the complainant for a sum of Rs.30,000/-. Hence, the complaint.


3. The second opposite party resisted the complaint by filing written version with affidavit before this Hon’ble Forum on 20.02.2009. The opposite party No.1 is called absent and set ex-parte. Written version with affidavit of opposite parties 3 and 4 was filed on 29.01.2009.


(a) The second opposite party does not admit any of the allegations contained in the complaint except those that are specifically admitted in the written version by him. It is true that the complainant has taken health insurance policy with the second opposite party. It is a generic contingency policy bearing policy No.OG-07-1901-9961-00044129 for a period from 07.12.2006 to 06.10.2007 subject to the terms and conditions, exceptions and limitation thereof. The second opposite party is not aware of about the opening of account with the third opposite party at Chittoor and about its business contacts. There is Health Insurance Policy of the complainant. It is false to state that complainant is suffering with nuchal pain and left arm pain since 2-3 days. As per the case summary and discharge record of the SVIMS, the complainant had this kind of pain since 2 ½ months. The complainant had stated about his admission and discharge date, but no date is mentioned in the said case summary and Discharge Record. The complainant approached CMC hospital, Vellore and they sent a letter of claim to the first opposite party.

As the opposite parties 1and 2 expedited the claim, the complainant issued a legal notice which was not filed before this Hon’ble Forum but the second opposite party had issued a suitable reply. The complainant had stated in para 8 of the complaint that on technical grounds, the second opposite party repudiated the claim, it is not true, basing on the terms and conditions of the policy, the second opposite party repudiated the claim. The mental agony does not arise at all without following the terms and conditions of the policy. When there is no deficiency of service at all, extra nourishment does not arise at all. When the complainant failed to fulfill the terms and conditions of the policy, all these things does not arise at all. He is not filed any prescriptions along with medical bills.
The complainant’s address is false. In almost all the documents the address of the complainant is at Chittoor only. The Hon’ble Forum has no jurisdiction. The contract of insurance is a contract of indemnity and the insurance company indemnifies the insured for any expenses that any medical expenses incurred for any illness diagnosed diagnosis within 30 days of the commencement of the policy period except those incurred as a result of accidental bodily injury. This exclusion shall apply only to extent of the amount by which the limit of indemnity has been increased if the policy is a renewal of health Guard Policy with us without break in cover.
The clause clarifies diagnosable which means that the insured is suffering from the complaints related to the diagnosis. As per the discharge summary from SVIMS, which mentions clearly that the insured was having nuchal pain since two months fifteen days, which means since 15.08.2006. the liability of the second opposite party is subject to terms and conditions of policy as per clause (sub clause 4) of the Health Guard Policy. There is no cause of action to file this complaint. The alleged cause of action is false. So, it is prayed that the Hon’ble Forum may kindly dismiss the case with costs including the costs stated in the reply notice given by the second opposite party.


(b) The allegations contained in the complaint of the complainant are denied by the 3rd and 4th opposite parties by filing written version except those that are specifically admitted in the written version. This opposite party is a corporate agent of first opposite party and the role of the 3rd opposite party is that of facilitator, i.e., to assist the customers in arranging to get the insurance policy from the insurance company, M/s. Bajaj Allianz. Once the insurance is issued, the contract between the first and second opposite parties and the complainant and third opposite party has no role to play.
The 3rd opposite party is not having any branch office at Tirupati and it appears that the complainant in order to invoke jurisdiction of this Hon’ble Forum and claim his reliefs has wantonly gave a wrong address by mentioning that a branch office of 3rd opposite party is functioning opp. to Municipal Office, Tilak road, Tirupati. The present complaint is nothing but an abuse of process of law and is made with an intention to enrich himself by raising absolutely unjust and untenable claim against 3rd opposite party and on this ground itself, the complaint is liable to be dismissed in limini. In case of any dispute with regard to the claim, the complainant shall approach the insurance company , i.e., 1st and 2nd opposite parties but not 3rd opposite party. Including the 3rd opposite party is nothing but mis-joinder of unnecessary parties and on this ground itself the complaint is liable to be dismissed.

The allegations in para 3 of the complaint that the complainant approached the 3rd opposite party for opening of a savings bank account are partly true and that the complainant has on his own volition has chosen to open account which is bundled with an additional feature of health insurance policy. There is no allegation of negligence or deficiency on service on the part of 3rd opposite party nor any claim is made against 3rd opposite party. Admittedly as per the relief portion in para 11 of the complaint, the complainant has claimed various reliefs only against opposite parties 1 and 2 only and not against 3rd & 4th opposite parties. So. It is prayed that the Hon’ble Forum may be pleased to dismiss the complaint with costs.



4. In support of the averment made in the complaint, the complainant filed 10 documents which are marked as Ex.A1 to A10 Ex.A1 is the Generic Contingency Schedule which contains all the particulars of policy. Ex.A2 is the case summary and discharge record of SVIMS issued in the name of the complainant of the details of the disease of the complainant and treatment particulars. Ex.A3 is the reply notice dated 11.01.2008 issued by the opposite party No.1 to the complainant’s the then advocate. Ex.A4 is the copy of Health Guard Policy document and it contains full aspects of the policy. Ex.A5 is the copy of additional information request form dated 20.11.2006 to CMC Hospital, Vellore from the Assistant Vice President – Health Insurance Ex.A6 is the copy of letter dated 30.12.2008 addressed to the second opposite party by the complainant without his signature with regard to reimbursement of medical bills of the complainant. Ex.A7 is the form issued by CMC Hospital, Vellore, dt.03.11.2006. Ex.A8 is the bunch of medical bills (all of them are Xerox copies) and total bill amount comes to Rs.52,311/-. Ex.A9 is the statement of account of the complainant for the period of 01.10.2006 to 31.12.2006. Ex.A10 is the another statement of account of the complainant issued by the 3rd opposite party for the period 01.10.2006 to 31.12.2006 with regard to the total deposits and withdrawals etc.


5. In support of the averments made in the written statement / written version, filed by the second opposite party, 3rd & 4th opposite parties filed 2 documents which are marked as Ex.B1 and B2. Ex.B1 is the 3rd opposite party’s brochure of family health and its application form relating to the 1st and 2nd opposite parties insurance and instructions towards the policy.
Ex.B2 is the Xerox copy of insurance policy issued by the first opposite party.


6. Both the learned counsels appearing for their respective parties filed written arguments in support of their case. They also filed as stated earlier the affidavits as evidence.


7. Basing on the pleadings, documents filed by the respective counsels, the points that arise for deciding this consumer case are:
1. Whether there is any deficiency of service on the part of the opposite parties 1 and 2 towards the complainant?


2. Whether 3rd and 4th opposite parties are proper and necessary parties to

determine this consumer case?

3. Whether the complainant is entitled to reliefs as prayed for, if so to what extent?


4. To what result?


8. Point No.1:- (a) The basic facts of this consumer case are not disputed. The learned counsel appearing for the complainant Sri B. Chitti Babu, has vehemently argued that the complainant approached the 3rd opposite party to open saving bank account and paid Rs.114/- towards obtaining of UTI Health Policy and also paid premium of Rs.1140/- to the 3rd opposite party through his Savings bank A/c. No.275010100026266. He further argued that the policy is admitted and covers health insurance with effect from 07.10.2006 to 06.10.2007.
The complainant had a health problem and was admitted in SVIMS hospital on 30.11.2006 and discharged on 12.12.2006. He further argued that the complainant suffered with illness of tingling, numbness, right fore arm pain apart from nuchal pain since 2-3 days falls within the policy coverage period. The first and second opposite parties are liable for medical expenses and reliefs claimed by the complainant. The complainant is entitled to get the reliefs as prayed for in the complaint and prayed to allow this complaint with costs.


(b) In response, the learned counsel for the opposite party No.2 Sri. K. Chengalrayulu has vehemently argued that the second opposite party after scrutinizing the claim of the complainant repudiated the claim basing on the terms and conditions of the policy to the complainant. He further argued that the case summary and discharge record is the vital document that decides the whole issue of the claim referred by the complainant.

Accordingly, as per the case summary and discharge record, the complainant had nuchal pain since 2 ½ months, pain in the left dermatome for the past 2 months. But the said symptoms of disease of the complainant caused prior to the obtaining of the health insurance policy form the first opposite party. He further argued that the complainant has intentionally suppressed the material fact and obtained health insurance in order to get wrongful gain from the first opposite party. The complainant is not entitled to get any reimbursement towards medical bills amount from the opposite parties 1 and


2. There is no negligence or deficiency of service on the part of the opposite parties 1 and2 towards the complainant. The complainant has approached this Forum by filing fictitious documents to claim the alleged sum and also claims on different heads without any basis whatsoever. Hence, it is prayed that the Hon’ble Forum may pleased to dismiss the complaint with costs.


( c) After perusal of the record and hearing of the arguments of both the counsels, it is crystal clear that the health insurance policy as per Ex.A1, commencing from 07.10.2006 and it expires on 06.10.2007. The sum assured of the policy is of Rs.1,00,000/- to the insured. The main contention of the learned counsel for the complainant is that the complainant was admitted in SVIMS hospital as per Ex.A2 is on 30.11.2006 and he was discharged on 18.12.2006 and as per Ex.A8 the expenditure incurred for medical bills are filed before this Hon’ble Forum for our perusal and consideration.
The contention of the learned counsel for the opposite parties 1 and 2 is mainly based on the contents of Ex.A2 relevant portion is that “C/o. nuchal pain since 2 ½ months. Pan in Lt.UE along with C5 dermatome for the past 2 months” to deny the claim of the complainant. The same aspect has been reiterated in para 4 of the reply notice of the second opposite party, i.e., Ex.A3. According to the second opposite party the complainant (insured) was having cerevical (nuchal) pain since 2 ½ months which means since 15.08.2006, i.e., prior to obtaining of the policy by the complainant.

It is meant for suppression of material fact and hiding the disease from the opposite parties 1 and2. But it is totally misunderstood by the first and second opposite parties that it is only the opinion of the doctor of Dept. of Neurology of SVIMS hospital as per the case summary. It is only the symptoms that cannot be identified by the patient and the doctor alone is competent to say about the nature of the pain of the complainant. It cannot be taken into account that disease is existing prior to obtaining policy from 1st and 2nd opposite parties by the complainant. So, after admitted in the hospital and during the investigation by the treating doctor it is noted in the case summary and discharge record.

In today’s world, people face problems like acidity, indigestion, back pain and headache, which are sometime chronic in nature. These symptoms may occur from time to time with different levels of intensity. They cannot be considered as diseases. Nowadays, the middle class people cannot afford the hospital bills. He cannot support himself if he had a fall or an accident making him unable to work and he cannot protect himself from critical illness such as stroke and cancer. So, Health Insurance has acquired a lot of importance in short span of time. Hence, it does not amount to suppression of material fact whatsoever by the complainant.
The present claim has arisen in the above said policy period. To deny or repudiate the claim of the complainant on technical grounds cannot be looked into because whether the complainant is genuinely admitted into the hospital for treatment and the version of the doctor about the pain of the patient can be taken into account for evaluating within the period of policy for rightful claim of the complainant. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for a premium and can be thought of a guaranteed small loss to prevent a large, possibly devasting loss. Usually, for settlement of a claim, two months period is considered as reasonable time. Insurance generally is a contract of indemnity between the insured and the insurer where the insurer promises to indemnify the insured against the laws which may sustain due to the particular risk which is covered under the policy.

Indemnity is the act of making good or loss sustained by the person due to the happening of any event which causes such a loss. Insurance is a contract of good faith and both the parties insured and insurer have to disclose all the necessary facts within their knowledge to each other. The learned counsel for the complainant did not mentioned in the complaint or in the written arguments about the date of preferring a claim to consider before the 1st or 2nd opposite parties as the case may be.

In reply legal notice (Ex.A3) issued by the 1st opposite party to the then advocate for the complainant, it is mentioned that claim cannot be considered iv view of the existing facts contained therein. This information is treated as repudiation of the claim and the date is 11.01.2008. The only thing is to observe whether the insured (policy holder) claiming the amount incurred to meet the medical expenses while health insurance subsits during that relevant period, i.e., 07.10.2006 to 06.10.2007. It is to be taken into account while awarding the claim amount to the insured. There is ample deficiency of service on the part of the opposite parties 1 and 2 towards the complainant. The complainant has produced relevant records to show that his claim is a genuine one and supported by documentary evidence.

The above said facts depict a very dismal state of affairs in which the insurer (Ops 1&2) had been able to prolong the matter and keep the controversy alive for more than 2 years. We find considerable substance in the submissions made on behalf of the complainant by the said learned counsel for the complainant. We are of the opinion that it a fit case wherein we can grant a legitimate amount incurred by the complainant in respect of medical bills for his treatment in SVIMS hospital, Tirupati. This point is answered accordingly.


9. Point No.2:- The 3rd opposite party is the bank wherein the complainant has opened savings bank account No. 275010100026266. No doubt, as per Ex.A9 the complainant paid premiums of Rs.114/- on 05.10.2006 and also Rs.1,140/- on 07.10.2006 towards health insurance. The relationship between the complainant and the 3rd opposite party is that of customer and banker.
The 3rd opposite party is only concerned in the estimate of the above said policy and it was issued by the first opposite party to the complainant. It is the consumer dispute between complainant and the 1st & 2nd opposite parties 3rd and 4th opposite parties are unnecessary parties to this consumer case and their role is very little in so far as savings bank account is concerned and the branch office at Tirupati for jurisdiction purpose. There is no deficiency of service on the part of the opposite parties 3and 4 towards the complainant. It is mis-joinder of parties and there is no liability on the part of the 3rd and 4th opposite parties and they are exempted from any liability whatsoever. This point is answered accordingly.


10. Point No.3:- In the preceding discussion as stated above, the points 1&2, it can be said that complainant has proved his case by producing documentary evidence to claim expenditure incurred for treatment by producing the medical bills during the subsisting period of the policy, i.e,07.10.2006 to 06.10.2007. The complainant is also entitled to get Rs.1,500/- towards the costs of the complaint.


11. Point No.4:- In the result, the complaint of the complainant is allowed in part directing the opposite parties 1 and 2 to pay a sum of Rs.52,311/- towards the amount spent for medicines by the complainant with interest at 9% per annum from 11.01.2008 till the date of realization and also to pay Rs.1,500/- towards the costs of the complaint to the complainant within 6 weeks from the date of receipt of copy of order.


The complaint against the opposite parties 3 and 4 is dismissed without costs.

Mr. Mario Barretto,

2 T-2, Kamat Complex

Tonca, Caranzalem, Goa. …………………….Complainant



V



The Manager,

Bajaj Allianz General Insurance Co.,

Patto, Panaji - Goa .......………...…..Opposite Party



Date: - 11/05/2009
O R D E R


(Per Smt. Shubhalaxmi U.P.Raikar, President)



Brief facts of the Case:-



1. It is the case of Complainant that he took a Mediclaim policy for himself and his family and Personal Accident Policies from United India Ins. Co. from 7/2/94 till 31/3/99 and from National Insurance from 31/3/99 till 28/3/2004 successively.



2. Thereafter the Complainant took the following Individual Health Guard Policies from the Opposite Party:



(a) OG-04-1703-8401-00000250 Individual Health Guard Policy valid from 29/03/2004 to 28/03/2005.

Mr. Mario Barretto proposer 50 Rs.1,00,000/-

Mrs.Annette Barretto Spouse 46 Rs.1,00,000/-

Kum.Desiree Baretto Child 16 Rs. 50,000/-

Mast.Joshua Barretto Child 15 Rs. 50,000/-



Complainant states in this policy the Opposite Party has wrongly/ negligently recorded ages of the members higher by one year. They have also committed error in regard with family discount and cumulative bonus and wrongly charged higher premium on wife’s policy. The Complainant states he pointed out these errors to the Opposite Party but they arrogantly refused to rectify the same.





3. The Complainant underwent a Coronary angioplasty at Holy Family Heart Institute, Mumbai on 1/9/06 and submitted his claim of Rs.1,58,539/- on 14/9/06 with the Opposite Party at Panaji. The Opposite Party admitted only Rs.1,10,000/- instead of Rs.1,58,539/- as actually spent and claimed by Complainant.



4. It is stated by the Complainant that at no time earlier the Opposite Party had informed the Complainant that NCB is not available after the age of 45 years and no such rule has been shown to the Complainant and even if such a rule exists the Complainant’s wife was not above 45 years on 23/03/04.



5. Complainant states at the time of taking the mediclaim policy from the Opposite Party the Complainant was given to understand that all policy holders enjoyed portability of health insurance from one company to another with similar clauses and rates and therefore Complainant could enjoy all accrued benefits such as cumulative bonus, free health check ups and waiver of the waiting period for coverage of pre-existing disease.



6. While National Insurance Co. insured the Complainant and his wife each for a sum of Rs.1,50,000/- and charged a premium of Rs.7,287/-.



7. The Opposite Party adopted unfair trade practice in regard with the next year’s policy No.OG-05-1705-8401-00000506 dated 25/3/05. The family discount ought to have been 10% of the sum insured but the same was not given at all. Rs.295/- mentioned but actually not given at all. Similarly Opposite Party has committed an error in the same policy by reducing cumulative bonus of two children to 15% from 20% which in fact ought to have been enhanced. Complainant hence prays for the following:



(a) To consider/ add the NCB i.e. Rs.30,000/- received from The National Insurance Company while settling the claims of the Complainant.

(b) To give 10% family discount on all the policies for all the relevant years.

(c) To give 20% NCB to each insured member for all the relevant years.

(d) To restore the sum insured by the Opposite Party i.e. Rs.1,50,000/-.

(e) To give 15% cumulative bonus on Personal Accident Policy No.OG-05-1703-9901-00000261 renewed on 10/3/05.

(f) To pay interest @ 14% on the sum payable on 31/10/2006 until final payment.

(g) To pay compensation 50,000/- for mental torture and harassment.

(h) To pay Rs.15,000/- as costs.

(i) Any other and further amount that this Hon’ble Forum may think proper and fit in the circumstances of the complaint.



Written Statement of the Opposite Party:



1. The Opposite Party states the complaint has insured himself and his family members with the Insurance Company for the period from 29.03.2004 to 28.03.2005. The Complainant produced a copy of policy from National Insurance Company Ltd. showing 5% cumulative bonus. The Complainant opted for Rs.1,00,000/- sum insured for himself and his wife. For his daughter and son the Complainant opted for Rs.50,000/- sum insured.

The Opposite Party allowed 5% cumulative bonus on the policy of the daughter and son. The Complainant and his wife were not entitled to cumulative bonus for the first year of inception on switch on policy from one company to the other as they were over the age of 45 years. Family discount is given on the policies. The age stated in the policy is as declared by the Complainant in the proposal form. For subsequent years, the Complainant and his family members have been given cumulative bonus and family discount as per entitlement.



2. The Opposite Party states that the Complainant was entitled to 10% of Cumulative Bonus on the insured value of the policy of Rs.1,00,000/-. Thus the Complainant is paid the full value of Rs.1,10,000/- in settlement of the Complainant’s claim for medical reimbursement. The claim was processed as per the said procedure for the same and there is no deficiency in service on the part of the Opponent.

It is denied that the applicant was entitled to Rs.1,50,000/-. It is stated that after attaining the age of 45 years, and in the event of switch on of the policy from the company to another the Cumulative Bonus is not available. The policy is considered as fresh policy and the entitlement of Cumulative Bonus starts afresh from the next year. As per Policy Terms and Conditions of the policy the Company’s maximum liability is restricted as per definition “Limit of Indemnity” which reads as follows: Limit of Indemnity represents our maximum liability to make payment for each and every claim per person mentioned in the schedule and in the aggregate for that person and means the amount stated in the schedule against each cover in Section A.



3. The Opposite Party states as the Complainant and his wife were over the age of 45 years and also as the policy was switched over from one company to another they were not entitled to any cumulative bonus.



4. It is denied by the Opposite Party that there is any deficiency in the service of insurance by the Opposite Party. It is stated that the Complainant has been insured with the Opposite Party from 2004 and continues insuring till date.



5. It is stated by the Opposite Party that the Complainant is not entitled to any of the relief claimed and the complaint be dismissed with costs.





OBSERVATIONS AND FINDINGS:



The claim of the Opposite Party has already been settled but only for a sum of Rs.1,10,000/- as on 31/10/2006 by the Opposite Party and the intimation of the said settlement was given only on 1st March, 2007. This is an admitted fact. The additional claim is of balance amount not given by the Opposite Party i.e. a sum of Rs.48,539/-. One of the main ground of the Complainant is that the Opposite Party wrongly and negligently recorded the age of the members higher by one year. Further Opposite Party has committed an error regarding family discount and cumulative bonus. The main claim is that the Opposite Party has not given cumulative bonus and family discount or in the hospital cash identification policy ages are wrongly shown. Similarly in accident policy the cumulative bonus are wrongly shown.



We do not accept the fact that the ages of the policy holders are mentioned wrong. The Complainant has not produced any document on record in support of their ages. The only documents given have been their Birth Certificates for us to confirm the same We do not find these Birth Certificates or any other related document in support of these statements made by Complainant. Further we do not find any deficiency since the claim of Rs.1,10,000/- was already settled by the Opposite Party in favour of the Complainant. We find that whichever policy obtained by Complainant has been issued by the Opposite Party as per sum insured. The age stated in the policy is as declared by the Complainant in the proposal form. It is an admitted fact that the Complainant and his family members have been given cumulative bonus and discount as per their own statement made in the proposal form.

These policies are already renewed without raising any grievances. The Complainant ought to have brought to the notice of the Opposite Party at the time of renewal of the policy. The statement of the claim done by the Opposite Party is restricted to limit of indemnity. The amount of settlement is mentioned in every policy against each cover in section (a) of the policy. We find that the Opposite Party has accepted the cumulative bonus of 5% as allotted by National Insurance Company. The letter dated 16/05/2007 i.e. in reply to Complainant’s letter dated 28/04/2007 explains all these facts. The issue of information given by Opposite Party to the Complainant at the time of taking medical policy regarding enjoyment of portability of health insurance from one Company to another is not supported by any documents or brochures, rules, etc.



We cannot give any support to the contention made that because National Insurance Company insured Complainant and his wife for higher sum. The Opposite Party should enhance the same. Here we feel that the Complainant is only entitled for interest on Rs.1,10,000/- on the delayed payments i.e. from 31/10/2006 to 01/03/2007. We find that the Complainant is not entitled for any prayers prayed for. However, we pass the following order:



ORDER



The Complaint is partially allowed as under:



1. The Opposite Party to pay interest at the rate of 12% on sum of Rs.1,10,000/- from 31/10/2006 to 01/03/2007. The Complainant has not made clear whether the said cheque of Rs.1,10,000/- has been accepted and deposited. In any case the Complainant will be entitled only for interest for delayed payment of Rs.1,10,000/- as above referred.

2. Order to be complied within 30 days.