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  1. #1
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    APPEAL NO: 1931/2007


    1. Br.Manager, TATA AIG Life Insurance Co. Ltd.,

    Br. Jaipur, Sardar Patel Marg, C-Scheme, Jaipur.

    2. General Manager ,TATA AIG Life Insurance Co. Ltd.,

    Corporate office, Mumbai.


    Opposite parties-appellants


    Vs.


    1. Indira Devi, w/o Lt. Shrawan Kumar,

    r/o Rasuwala, Teh. Sangaria,Distt. Hanumangarh.

    2. Kalpana d/o Lt. Shrawan Kumar,

    r/o Rasuwala, Teh. Sangaria,Distt. Hanumangarh.

    Complainants-respondents

    3. Nand Lal Saini , DTO ,

    TATA AIG Life Insurance Co. Ltd.,

    Jaipur branch, Malviya Nagar, Jaipur.

    4. Ramniwas Saini (Agent)

    TATA AIG Life Insurance Co. Ltd.,

    Jaipur branch, Malviya Nagar, Jaipur.

    Opposite parties-respondents


    21.4.09


    Before:


    Mr.Justice Sunil Kumar Garg- President

    Mrs.Vimla Sethia-Member


    2


    Mr.Abhishek Mishra counsel for the appellants

    Mr.Mahaveer Singh counsel for respondents no. 1 & 2

    None present for respondents no. 3 & 4


    This appeal has been filed by the appellants which were opposite parties no. 1 & 2 before the District Forum against order dated 5.10.07 passed by the District Forum, Jaipur IInd, Jaipur in complaint no. 380/06 by which the complaint of complainants respondents no. 1 & 2 was allowed in the manner that the appellants were directed to pay a sum of Rs. 2,50,000/-, the amount of the policy alongwith interest @ 9% p.a. w.e.f. 28.10.05, the date on which the claim was repudiated and further to pay Rs.3000/- as costs of litigation.


    2. It arises in the following circumstances-


    That the complainants respondents no. 1 & 2 had filed a complaint against the appellants as well as against respondents no. 3 & 4 before the District Forum, Jaipur IInd on 29.3.06 inter alia stating that husband of complainant respondent no.1 and father of complainant respondent no.2 Shrawan Kumar, now deceased had taken a life insurance policy for a sum of Rs. 2,50,000/- from the appellants bearing policy no. C- 12052311 on 24.2.05. It was further stated in the complaint that the deceased had died on 8.3.05 and after the death of the deceased claim was preferred by the complainant respondent no.1 being the wife and nominee of the deceased before the office of the appellants but that claim was repudiated by the appellants through letter dated 28.10.05 in the following manner-

    3


    " We understand that the insured was under treatment for Carcinoma of lower lips since before application. According to our records, such information had not been disclosed in the application dated 24th February 2005 for the captioned policy. Had such information been disclosed, our underwriting decision(s) would have been different.


    We therefore regret that we are unable to honour your claim and have to rescind the above policy from inception accordingly. ...."


    Thereafter the present complaint was filed.


    A reply was filed by the appellants and in the reply they have taken the same pleas which were taken by them in the repudiation letter dated 28.10.05. It was further stated in the reply that since prior to taking the policy on 24.2.05 the deceased was admitted in the SMS Hospital, Jaipur on 17.2.04 where the disease of Cancer was diagnosed and since these facts were not disclosed by the deceased in his declaration form dated 24.2.05 which was filled in up by the deceased at the time of taking the policy , therefore, it was a case of suppression of material facts regarding health on the part of the deceased and it was prayed that claim was rightly repudiated by the appellants and complaint be dismissed.


    After hearing the parties the District Forum, Jaipur IInd,Jaipur through impugned order dated 5.10.07 had allowed the complaint inter alia holding that -

    4


    (i) That no doubt the record of the hospital was produced by the appellants but the affidavit of Dr.Rajgovind had not been produced and in absence of the affidavit record of the hospital could not be relied upon and thus is was found no case of suppression of material facts regarding health on the part of the deceased.


    (ii) That the appellants were not justified in repudiating the claim of the complainant respondent and it had amounted to deficiency in service on the part of the appellants.


    Aggrieved from that order dated 5.10.07 passed by the District Forum, Jaipur IInd, Jaipur , this appeal has been filed by the appellants.


    3. In this appeal the main contention of the learned counsel for the appellants is that before issuance of policy in question, the deceased was suffering from the disease of Cancer in the lower part of the lips for which he took medical treatment from the doctor and since these facts were not disclosed by the deceased deliberately in his declaration form on 24.2.05 , therefore, he was guilty of suppression of material facts regarding health and thus on that ground the claim of the complainant respondent was rightly repudiated by the appellants through letter dated 28.10.05 and the District Forum had committed serious error and illegality in decreeing the claim of the complainant respondent. Hence the impugned order could not be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.


    5


    4. On the other hand, the learned counsel appearing for the respondent no. 1 & 2 has supported the impugned order of the District Forum and has argued that there might be Cancer prior to filling in up the declaration form on 24.2.05 but cause of death of the deceased was different one and thus the claim was wrongly repudiated by the appellants and it was prayed that findings of the District Forum be upheld.


    5. We have heard the learned counsel for the appellants as well as for the respondents and gone through the entire materials available on record.


    6. There is no dispute on the point that the deceased had taken a life insurance policy for a sum of Rs. 2,50,000/- from the appellants bearing policy no. C- 12052311 on 24.2.05.


    7. There is also no dispute on the point that at the time of taking insurance policy , a declaration was made by the deceased and in that declaration on 24.2.05 , he had not mentioned that he was suffering from any kind of disease or had taken any treatment from any hospital.


    8. There is also no dispute on the point that deceased had died on 8.3.05 meaning thereby within one month of issuance of the policy.


    9. There is no dispute on the point that the claim of the above mentioned policy was repudiated by the appellants through letter dated 28.10.05 on the grounds mentioned therein.


    10. On file there is an Admission card of the SMS Hospital,

    6


    Jaipur which shows that the deceased was admitted in the hospital for the first time on 17.2.04 and the disease of Cancer in lower lips was found diagnosed by the doctors.


    11. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the findings recorded by the District Forum could be sustained or not and whether the repudiation of the claim of the complainant respondent by the appellants was justified or not.


    12. It may be stated here that it is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties known. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since obligation of good faith applies to both equally and in this respect, the decision of the Hon'ble Supreme Court in M/s.Modern Insulators Ltd. Vs. Oriental Insurance Co. (AIR 2000 SC 1014) may be referred to.


    13. The onus probandi, in cases of fraudulent suppression of material facts rests heavily on party alleging fraud namely the insurer. In this respect, the decision of the Hon'ble Supreme Court in LIC Vs. Smt. G.M.Channabasemma (1996 (III) CPJ 8 (SC) may be referred to where it was held that the burden of proving that the insured had made false representation and suppressed material facts is undoubtedly on the LIC of India. Furthermore, mere concealment of some facts will not amount to concealment of material facts and if there is fraudulent suppression of material facts in the proposal, the policy could be vitiated otherwise not.

    7


    14. Suppression of fact must be a conscious operation of the giver of the answer which he knowingly did not disclose.


    15. The Hon'ble National Commission in National Insurance Co. Ltd. Vs. Bipul Kunda (2005 CTJ 377 (CP) (NCDRC) ) has held that for repudiating a claim of an insured, it is for the insurer to show that a sttement on a fact, which was material for the policy, had been suppressed by the insured and that statement was fraudulently made by him/her with the knowledge of the falsity of that statement.


    16. As already stated above, the death of the deceased had taken place within one year of the issuance of the policy.


    17. It may be stated here that where the insurer wishes to call ain question a policy within two years of its being effected, it is enough if the insurer is in a position to show that a statement made in the proposal for insurance or in any report of a medical officer or referee or friend of the insured or in any other document leading to the issue of the policy is inaccurate or false.


    18. It may further be stated here that even if the death takes place within two years, mis-representation, if any, that should be material in the sense of having some effect upon life expectation whether direct or indirect and if it is found material, that defence could be taken by the Insurance Company, not otherwise.


    19. The word "misrepresentation" means suggestio falsi, in matter of substance essentially material to the subject, whether by acts or by words, by manoeuvres, or by positive assertions or


    8


    material concealment (suppressio veri) whereby a person is misled and damnified.


    20. The word "fraud" means a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter. In this respect, the decision of the Hon'ble Supreme Court in Ram Preeti Yadav Vs. UP Board of High School & Intermediate Education and ors. (JT 2003 (Supp.I) SC 25 ) may be referred to.


    21. It is well settled that misrepresentation itself amounts to fraud in some cases.


    22. The word "misconduct" means an act or conduct in the nature of a breach of trust or an act resulting in loss to other party.


    23. The word "suppression of fact" envisages a deliberate or conscious omission to state of fact with the intention of deriving wrongful gain. In this respect, the decision of the Hon'ble Supreme Court in Collector of Customs Calcutta Vs. Tin Plate Co. of India Ltd. ( (1997) 10 SCC 538 ) may be referred to.


    24. Keeping the above legal position and definitions in mind, if the facts of the present case are examined, it clearly appears that the deceased was found a patient of Cancer in lower part of the lips on 17.2.04 and the declaration form regarding health on the part of the deceased was filled in up by the deceased on 24.2.05 in which he had not mentioned that he was suffering from any kind of disease. Thus, in the present case it could easily be said that the deceased had suppressed the diseases of Cancer and since these

    9


    facts were not disclosed by the deceased deliberately and intentionally in the declaration form dated 24.2.05, therefore, that would amount to suppression of material facts regarding his health and such suppression and concealment which was made by the deceased would amount to fraudulent suppression on the part of the deceased .


    25. Further the learned counsel for the complainants respondents no. 1 & 2 has argued that if for the sake of argument, the deceased might be a patient of Cancer but since it has no bearing and nexus with the cause of death of the deceased, therefore, non-disclosure of disease of cancer could not be treated as material one and in our considered opinion, this argument could not be appreciated at all as issue of nexus in the present case stands on different footing as non-disclosure of disease of Cancer would certainly amount to suppression of material facts on the part of the deceased.


    26. For the reasons stated above, it is held that repudiation of claim of complainant respondent by the appellants through letter dated 28.10.05 on ground of suppression of material facts regarding health by the deceased was justified and no illegality or irregularity has been committed by the appellants in repudiating the claim of complainant respondent and in view of this, the findings of the District Forum decreeing the claim of the complainant respondent could not be sustained and the same are liable to quashed and set aside as they are wholly illegal, erroneous and perverse one and the appeal deserves to be allowed.


    27. During the course of arguments the learned counsel for the respondents no. 1 & 2 has stated that in case the appeal of the

    10


    appellants is going to be allowed, in such circumstances some amount of compensation as ex-gratia be allowed to the complainant respondent no.1 who is widow lady.


    On ex-gratia payment


    28. Ex-gratia payments are made as an act of grace, if the damage caused is outside the scope of the policy terms, or the liability under the policy is doubtful. In such cases the payment is made as an act of grace on humanitarian grounds. As a matter of fact, the loss or damage is outside the terms of the policy but the insurer takes a lenient view on humanitarian grounds. In such cases, full amount to indemnify the damages is not made. Such payments do not place the insurer under an obligation to make such payments in similar circumstances in future.


    29. Further ex-gratia payment of claim would arise where there was no legal liability on the Life Insurance Corporation to make payment as in the case of repudiated claim or unconcluded contract. Such claims are paid to mitigate hardship to the claimants by way of equitable relief. The analysis, particularly of a repudiated claim for consideration of an ex-gratia payment, would be a skilful exercise on the part of the concerned officers of the opponent Life Insurance Corporation of India. Ex-gratia payment cannot be claimed as a matter of right. For that the law laid down by the Hon'ble National Commission in the case of LIC Vs. Shashi Gupta ( 1994) 2 CPR 622 (NC) ) may be referred to.


    30. Further the word 'ex-gratia' payment itself means a payment which is voluntarily and charitable in nature and since the C.P.Act,1986 is based on the principle of equity, therefore,

    11


    hypertechnicalities could be ignored and equitable consideration should be kept in mind while deciding the matter.


    31. However, looking to the entire facts and circumstances of the case and looking to the fact the LIC policy was for a sum of Rs.2,50,000/- and on humanitarian consideration, this Commission thinks it just and proper to award ex-gratia amount of Rs.25,000/- in lumpsum to the complainant respondent no.1 .


    32. It is further made clear that ex-gratia payment to the tune of Rs.25,000/- in lumpsum is being given to the complainant respondent no.1 who is a widow, not as a matter of right but taken into consideration the facts and circumstances that the condition of a widow in India is not good and in the present case the complainant respondent no.1 is a widow lady.


    33. In view of the discussions made above, this appeal filed by the appellants is allowed and the impugned order dated 5.10.07 passed by the District Forum, Jaipur IInd, Jaipur is quashed and set aside and the complaint of the complainants respondents no. 1 & 2 is dismissed. However, the appellants would pay a sum of Rs.25,000/- in lumpsum as ex-gratia payment to the complainant respondent no.1. It may be stated here that while preferring the appeal, the appellants had deposited a sum of Rs.25,000/- before the District Forum, Jaipur IInd, Jaipur and therefore, the District Forum is directed to make payment of a sum of Rs. 25,000/- to the complainant respondent no.1 and rest amount if any be returned to the appellants.



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    REASONS POINTS 1&2: Complainant had taken a travel guard global travel protection, silver plan from respondents 1 and 2 with schedule no. 7D602940 issued on 21-8-2007 for travel dates from 22-8-07 to 28-8-07 and paid Rs.903/- as premium for various benefits including the baggage loss. This fact is not in dispute. As per complainant he lost his checked baggage at Manchester airport and he lodged complaint on 22-8-07 at Manchester and the British Airlines Baggage tracing information file number is MEV BA61605. Even he sent complaint through e-mail.

    This fact is also not much in dispute. As per complainant the checked baggage loss coverage is to a maximum extent of 500$ as such he would be entitled to a sum of Rs.20445/- with interest @18% p.a on that amount apart from Rs.102500/- towards compensation and cost of the litigation. The respondents 1 and 2 have taken a specific contention that, from an inquiry it was revealed that, the lost baggage was delivered to the complainant on 25-8-2007 as such there is no baggage loss. It is further contended that, as per the policy, its liability regarding the delay in delivery of the bag was settled by payment of Rs.2045/- equellent to 50 $. So, there is no either dereliction of duty/negligence on their part. In support of such contention respondents 1 and 2 have not produced any materials to show that, lost baggage was traced out and same was delivered to complainant on 25-8-2007. Even respondent-3 has not produced any material on that point.

    As such mere contention of the respondents that lost baggage was traced out & same was delivered to complainant, cannot be accepted. On what date that lost baggage was traced out and on what date it was delivered to complainant and at which place, no particulars are mentioned. Whether respondents took any acknowledgement from the complainant for having delivered that baggage even for that also no mterial is produced before the forum. So, mere such contention of the respondents cannot be accepted. It is the specific contention of respondents 1 and 2 that, even if the maximum liability as per the policy is 500$ but out of which 50% is to be deducted per bag out of the maximum liability, so, so much amount is liable to be paid by them to complainant. It is an admitted fact that, the respondents 1 and 2 have already paid Rs.2045/-.

    If that amount is deducted the balance payable would be Rs.8177.50 ps. The learned counsel for complainant has relied on a decision 2003 (1) CPR 458, Delhi State Consumer Commission, wherein their lordships have held that, where a passenger traveling by air had not disclosed value of baggage nor paid additional charges, then for damage or delay in delivery of that baggage case was covered under Rule.22 of schedule II of Carriage by Air Act and Airlines was to pay the damages at 20 $ per kg. Even if that principle is accepted but, there is no clear evidence for the complainant as to what was the actual weightage of his lost baggage.
    The Carriage by Air Act 1972 is also made available by the complainant. In the written version of respondents 1 and 2 though it is stated that the baggage was delivered to complainant on 25-8-07 as already stated, no documents were produced to support it. Since R3 is impleaded the contention of the respondents 1 and 2 that, complaint is not maintainable for non impleading of R3 does not carry any weight.

    It was argued for respondents 1 and 2 that, the complainant has not produced non traceable certificate from the British Airways, which is the primary document to put an end to the proceedings. At the same time the respondents 1 and 2 including R3 have not produced any material before the forum as to delivery of the lost baggage to complainant. One more contention taken by the respondents 1 and 2 is that, this forum has no territorial jurisdiction to entertain the complaint. Referring to the some provisions of the above said Act it was argued for complainant that, where transaction takes place a complaint can be filed there, as such complainant have made correspondence from Dharwad part of cause of action has arisen to him within the jurisdiction of this forum so his complaint is maintainable.
    Contrary is not proved by the respondents as such it cannot be said that, this forum has no territorial jurisdiction to entertain the complaint. On the point of jurisdiction Sec.28 and 29 of Carriage by Air Act 1972 is relied on for complainant and it was further argued that, when there is special Act it prevails over the general law. Complainant has produced Air ticket, baggage lost tracing information by R3, courier receipt, fax message sent to R3 and e-mail. Complainant has also produced a quite number of documents in support of his claim. Even if those documents are considered but complainant has not proved that, he will be entitled to the total cost @500 $ towards loss of baggage and not 50% of it. As per the travel guard policy if respondents are directed to pay 50% of the loss of lost baggage by deducting the amount already paid with reasonable rate of interest and cost of the litigation may serve the ends of justice. Non settlement of the claim as per the terms of policy 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 respondents to pay a sum of Rs.8177.50 ps with 8% interest p.a from 22-8-2007 till its realization apart from Rs.2000 towards cost of the litigation jointly and severally 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 12TH March 2009)




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    Complainant:

    Mr. Dhruva Sharma
    R/O No.37/38, Ashiana
    Kurubara Halli, KHB Society
    Bangalore-560 086
    R/by Power of Attorney
    Holder
    Dr. Suresh Sharma
    R/O No.37/38, Ashiana
    Kurubara Halli, KHB Society
    Bangalore- 560 086


    /vs/



    Opposite Parties:

    1.Senior Manager
    TATA AIG Life Insurance Company
    Customer Services
    Delhi B Wing, 2nd Floor
    Arcade Avenue, Hiranandani
    Business Park
    Powai, Mumbai- 400 076



    2.TATA AIG Life Insurance Company
    Khaneeja Bhavan
    5th Floor, West Entrance
    Race Course Road
    Bangalore
    R/by its Authorized Signatory

    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 parties (Ops in short) for the payment of Rs.4.00 lakhs covered under the policy, compensation of Rs.2.00 lakhs with costs and for such other reliefs.

    The brief facts of the case are that the complainant was the father of baby girl named Ishani Sharma, who was born on 02/04/2006, at Shanbag Nursing Home, Rajajinagar, Bangalore. After the birth of his daughter, he immediately got his daughter insured with the OP, bearing policy No.C102981946, issued on 12/5/2006, the face amount of the policy was Rs.4,00,000/- and after payment of the premium amount on 9/5/2006, the policy was came to be issued. And at the time of insuring the policy of the daughter of the complainant she was hardly aged about on month old. The original policy is submitted to Op and still the same is with Op. Daughter of the complainant was hale and healthy at the time of her birth and also upto the period of 3 months, baby was hale and healthy and this aspect of the matter was also certified by the Doctor, who was treating the child. And the daughter of the complainant was regularly checked up as per the immunity chart and table of the immunity card. The complainant has also used to put the vaccination, to his daughter at the regular intervals, as per the immunity chart. And the doctor who was treating and diagnosing the daughter of the complainant has certified in the immunity chart that the baby was hale and healthy. The entire immunity chart of the baby has indicating health condition of the child.

    But in the last week of June, the baby was started suffering from cough and cold. Initially Doctor who was treating the baby, had tried to reduce the cold, by treating with antibiotics. Since there was no improvement was shown by the baby and cough did not subside, the complainant has admitted his daughter to the Manipal Hospital, on 01/07/2006 for the further check up. After the child was admitted to Manipal Hospital, the doctors have conducted several medical tests. The medical tests reports, indicated that the child was suffering from ‘INTERSTITIAL LUNG DISEASE’. In the medical tests conducted by the doctors at Manipal hospital, were able find out the fact only after obtaining the tests reports on 10/07/2006, that the child has infected with lung disease and till then nobody had any knowledge, health condition of the child. Unfortunately the doctors could not save the daughter of the complainant and ultimately the child died on 28/07/2006. And pursuant to the death of the daughter of the complainant, the complainant, made a claim to the OP NO.2, by claiming the insured amount of Rs.4,00,000/-, Vide claim letter dated 23/08/2006 and along with the claim letter, he has enclosed the original Policy and birth certificate and Hospital medical records and death certificate and he also enclosed all other relevant records. The said claim letter has been received by the OP on 24/08/2006 and the receipt of the same is also acknowledged by the Ops.

    The Op, after receiving the claim letter from the complainant, requested the complainant to fill up the claim statement and accordingly the complainant after filling the claim statement, has sent the same to the OP. After receiving the claim statement from the complainant, to the surprise and shock of the complainant, the Op sent a letter on 02/11/2006, repudiating the claim of the complainant, on the false and frivolous ground, stating that the complainant had not disclosed the information that the child was suffering from, ‘brocho-pneumonia’, which was totally false and far from truth. To the letter issued by the Op, issued on 02/11/2006, the complainant immediately replied bringing it to the notice of the Op that, child was not suffering from any disease at the time of insuring, but only in the month of July the child was diagnosed in the Manipal hospital, for acute respiratory distress syndrome, wherefore in view of same, the complainant, has not suppressed anything in the insurance application and requested for the processing of the claim at the earliest. In response to the request letter written by the complainant, the Ops, written a letter to the complainant stating that, the claim of the complainant will be reviewed by them. Pursuant to the review it appears that the Ops have decided to stick on to their original decision, of repudiating the claim of the complainant and accordingly sent a letter to the complainant on 15/02/2007, rescinding the claim of the complainant. And subsequently the Ops have once again replied to the complainant on 02/04/2007, communicating their decision to rescind the claim. Having left with no alternative, got issued a legal notice, on 10/06/2007, calling upon the Op to pay the insured amount.

    Pursuant to legal notice the Ops replied to the legal notice on 13/07/2007, stating that the complainant had not disclosed the pre-existing disease in the application. The complainant got issued the one more legal notice, on 13/07/2007, asking the Op to send the documents referred in their reply. But inspite of the legal notice, the Ops did not supply the documents, referred to in their reply. Hence the complainant approached this forum.

    Ops appeared through their counsel, filed their version and also gave evidence by way of affidavit. Complainant gave his evidence by way of affidavit. Heard arguments on both sides.

    All the facts have been admitted in this case. The main reason for the repudiation of the claim of the complainant was it was a pre-existing disease and the complainant has suppressed the said facts at the time of taking the policy from the Ops. The Learned counsel for Op relied on the certificate issued by Doctor Promod G. Shanbag. It is the copy of the certificate issued by the said Doctor in his letter-head. By referring the said certificate, the learned counsel drawn our attention to step 8 in the application form where the complainant suppressed these facts at the time of filling up of the application for obtaining the policy. According to learned counsel for complainant delivery of the baby took place in Shanbag Nursing Home where Dr. Promod G. Shanbag is a child specialist. The baby was born on 02/04/2006. When the delivery was took place in the said Nursing Home definitely the Nursing Home must have maintained the case sheet of the patient. The certificate referred by the learned counsel for Op is a Xerox copy of the said certificate issued on 31/10/2006. If the Broncho Pneumonia was diagnosed on 23/04/2006, as per the certificate, it must have entered into the case sheet of the patient. The learned counsel for complainant has produced child health record issued by the said Nursing Home, periodically the treatment was taken and vaccination was done. As per the said record on 03/06/2006, the baby was thoroughly checked and the smile was also positive. If the baby was suffering from Pneumonia, the Ops should have obtained the medical records from the hospital to show that the baby was suffering from the said disease prior to the date of obtaining the policy from the Ops. The doctor who issued the said certificate has also not given his evidence on oath. In the absence of evidence of Doctor who treated the patient and the records of the said nursing home, we can not rely on the Xerox copy of the documents issued by the hospital. The Ops have also not produced any documents to show that the complainant had knowledge of said disease of his daughter at the time of taking the policy. After two weeks of the delivery some cough was their and medicines was given by the doctor in the Nursing Home and merely cough was there and medicine was given can not be presumed that the complainant had knowledge of disease unless it is supported by the Nursing Home records. The Ops have miserably failed to prove that the complainant suppressed the pre-existing disease of his daughter at the time of obtaining the policy. When the Ops have agreed to comply with the terms and conditions of the policy, it is the bounden duty of the Op to pay the amount soon after the death of the baby. Non-payment of the amount under the policy amounts to deficiency in their service.

    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 parties 1 and 2 are jointly and severally liable.

    Opposite parties 1 and 2 are directed to pay an insurance amount of Rs.4.00 lakhs (Rupees Four Lakhs only) to the complainant within sixty days from the date of this order with interest @ 8% p.a. from the date of the death of the baby to till the date of realization.

    Opposite parties 1 and 2 are further directed to pay an amount of Rs.3,000/- (Rupees Three Thousand only) to the complainant towards the cost of this litigation.

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    CONSUMER COMPLAINT NO.247/2008
    Between:

    Smt. Tanuku Surya Satya Uma Devi ,W/o Subbaram, Hindu, female, 38 years
    House wife, 35-21-22, Bank Colony, Tanuku
    W.G. Dist., -- Complainant

    And

    Tata AIG Life Insurance Co., Ltd.,
    Registered and Corporate Office
    6th Floor, PeninsulaTowers, Peninsula Corporate Park
    Ganpatrao Kadam Marg., Lower Parel (W)
    Mumbai 400 013 -- Opposite Party
    This complaint coming before us for final hearing on 7-4-2009 and on perusing the Complaint, version and other material papers on record and on hearing the arguments of Sri. O.S. Nageswara Rao, Advocate for the complainant and Sri. A. Jagan Mohan Rao, Advocate for the Opposite Party and the matter having stood over for consideration to this day, this forum made the following:-
    O R D E R

    This complaint is filed under Sec. 9 of Consumer Protection Act, 1986 by the complainant to direct the opposite party to pay a sum of Rs.45,743/- along with costs of the complaint. The averments of the complaint in brief are that:


    2. The complainant is a housewife, that one Thumu Satyanarayana a resident of Tanuku introduced himself as an agent of the opposite party and persuaded the complainant to obtain a Health Insurance Policy from the opposite party by saying that all kinds of illnesses would be covered during the policy coverage period. Being influenced by the words of the said agent, the complainant obtained health policy bearing No. C440026576 dated 16-3-2007 from the opposite party in the year 2007. During the validity of the policy period, the complainant underwent surgery in the hospital of Dr. Chalasani Venkatadri of Lakshmi Arundhathi Nursing Home of Tanuku on 23-11-2007 for a total Abdominal Hysterectomy and was discharged on 19-12-2007 and incurred a total expenditure of Rs.19,096/- towards surgical and medical expenses. After her discharge from the hospital, the complainant brought the same to the notice of the local agent of the opposite party at Tanuku who inturn addressed a letter dt. 16-11-2007 to the office of the opposite party. Thereupon, the complainant received a reply from the office of the opposite party stating that the surgery which is mentioned in the letter dt. 16-11-2007 is not covered under the policy. Thereupon the complainant issued a letter dt. 22-2-2008 to the opposite party claiming a sum of Rs.19,096/-. Subsequently the authorities of the opposite party in the process of making enquiries with the concern doctors took all the originals of the complainant and gave a reply dt. 1-4-2008 stating that the illness in question was not covered under the health protector plan and refused to oblige the demands of the complainant. While the matter stood thus, the opposite party taking advantage of the Credit Card facility of the complainant withdrew a sum of Rs.1647/- from her account without her knowledge and consent. Then the complainant issued a notice to the opposite party on 7-4-2008 raising her objections for such withdrawal to which the opposite party got issued a reply on 7-4-2008 for the other averments without giving any reply to the withdrawal of Rs.1647/-. As the services of the opposite party are deficient, the acts of the opposite party are arbitrary and illegal and caused damage and mental agony to the complainant, the present complaint is filed by the complainant for the aforesaid reliefs.


    3. The opposite party filed its version stating that the complaint is false, malicious, incorrect and malafide and is nothing but abuse of process of law that there is no deficiency in service on its part, and that as per the terms and conditions, the policy of the complainant is covered under 12 critical illnesses and it does not cover the surgery underwent by the complainant and therefore the complainant is not entitled for the reliefs sought by her and thus the complaint is liable to be dismissed.

    4. Thereafter the husband of the complainant filed an affidavit with the contentions supporting the averments of the complaint filed by the complainant and got marked Ex A.1 to Ex A.9. The opposite party filed the affidavit supporting the version filed by it and got marked Ex B.1 to Ex B.6.

    5. The points for determination now are :

    1)Whether the complainant is entitled for the reliefs sought by her ?

    2)Whether there is any deficiency in service on the part of the opposite party in discharging the conditions of the policy ?

    3)To what relief ?


    Pont No.1 :

    The admitted facts of the case are that the complainant is a housewife and took policy/ExA.1 in question from the opposite party and during the policy period, the complainant underwent operation for total abdominal hysterectomy and incurred a sum of Rs.19,096/- in total towards surgical and medical expenses.

    It is the contention of the complainant that one T. Satyanarayana a resident of Tanuku introduced himself as the agent of the opposite party and persuaded her to obtain health insurance policy from the opposite party by saying that all kinds of illnesses would be covered during the policy coverage period that thereupon the complainant being influenced by the words of said Satyanarayana, obtained the policy in question. At this stage, the contention of the learned counsel for the opposite party is that the policy Ex A.1/B.2 covered 12 types of critical illnesses and the policy obtained by the complainant does not cover the operation underwent by the complainant in question, as such the complainant is not entitled for the reliefs sought by her.

    As per the policy information under Ex B.2, it is a fact that the policy covers 12 types of critical illnesses. As rightly contended by the learned counsel for the opposite party the policy Ex.B2 does not cover the operation in question underwent by the complainant. The contention of the complainant that she, being influenced by the words of the agent T. Satyanarayana, obtained the health policy in question is not tenable and can not be accepted.

    Under the said circumstances, we found that the complainant is not entitled for the reliefs sought by her.
    Further more, as rightly contended by the learned counsel for the opposite party that after filing of the complaint, the complainant did not choose to file any affidavit in proof of the averments of her complaint. In fact, the affidavit filed in the case is by the husband of the complainant. There is no iota in the affidavit of the husband of the complainant that he is looking after the affairs of his wife and she has authorized him to file such affidavit.
    Under the above said circumstances, we found that there are no merits in the complaint, as such the complaint is liable to be dismissed. This point is answered accordingly.


    Point No.2:


    In view of the finding given under Point No.1, we found that there is no sufficient material placed on record by the complainant that there is a deficiency in service on the part of the opposite party. This point is answered accordingly.

    In the result the complaint is dismissed in toto. No order as to the costs.

  5. #5
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    Consumer Case No.616/2008
    Between
    Sri S. Panduranga Reddy,
    S/o. Late s. Narayana Reddy,
    Aged about:70 years, Occ: Business
    R/o. H.No.4-3-560/B/1, Tilak Road,
    Hyderabad. . ……Complainant

    And
    1.M/s. Tata A/G General Insurance Co. Ltd.,
    Rep by its Managing Director,
    Aura Centre, 4th Floor,
    Mahankali Caves Road, Andheri(E),
    Mumbai-400 091.

    2.M/s. Tata AIG General Insurance Co.Ltd.,
    Rep by its Branch Manager,
    Hyderabad, Block-A, My Home Tycoon,
    Kundan Bagh, Begumpet, Hyderabad-16. …..Opposite parties


    This case coming on 06- 04-09 for final hearing before this Forum in the presence of Sri. K.Srinivasa Reddy , Advocate for the complainant and Sri.Abdul Khader, Advocate for the opposite parties No.1&2 having stood over till this day for consideration, this Forum pronounced the following:-
    O R D E R
    (By Sri. D.Mahesh Kumar, Member on behalf of the bench)
    1. This complaint under Section 12 of Consumer Protection Act, 1986 was filed by the complainant for a direction to the opposite parties 1&2 to pay an amount of Rs.14,602/- paid towards renewal of insurance policy along with interest @ 24% from the date of payment till the date of realization. To pay an amount of Rs.71,200/- @ Rs.800/- per day for engaging the taxi car from 23-12-2007 to 5-4-2008. To award Rs.50,000/- towards damage for mental agony, pain suffered by the complainant. To pay an amount of Rs.5,000/- towards legal expenditure, to pass any such order or orders as this Hon’ble forum may deems fit and proper in the circumstances of the case in the interest of justice and equity.

    2. The brief facts of the case:- The complainant has taken Insurance policy from the opposite party No.1 vide policy No.010039516400, dated 23-12-06 in respect of the vehicle bearing No.AP 9BG2088. The said policy was expired on 23-2-2007. The complainant has received phone call from the opposite party No.1 on 7-12-07 requesting him to get renew of the said insurance policy by paying an amount of Rs.14,602 to their Bombay addressed with reference to “ MSIT of MSIJ No. 0712810932 “ Immediately the complainant had paid the said amount though his Credit card and was under the impression that he will receive the renewed policy before on 22-12-07. It is the say of the complainant that he has not received the renewed policy in till 24-1-08, though he was constantly contacting the opposite party No.1 to know the status of his renewed policy. Nobody has given any reply with regard to his renewal of car insurance policy. The complainant addressed a letter to the opposite parties requesting them to refund amount without any further delay as they have failed to renew the policy inspite of receipt of the amount on 7-12-07. Thereafter the complainant being a senior citizen forced to hire tax for Rs.800/- per day 22-12-07 to till date as his policy was not renew within time. As such he was put to loss and mental agony due to the irresponsible attitude of the opposite party .
    The complainant got issued a legal notice through his counsel on 5-3-08 demanding the opposite parties to refund the amount of Rs.14,602/- along with interest at 24% p.a. and Rs.800/- per day from 23-12-07 to 5-4-08(for 89 working days) towards hiring the taxi and Rs. 10,000/- towards causing mental agony along with cost of the legal notice. In spite of issuance of the said legal notice the opposite party not chosen to reply nor renewed the policy nor refunded the amount. The opposite party has issued a notice on 30-4-08 informing the complainant to supply the proof of the insurance policy in order to process cancellation. It is the case of the complainant that he never requested the opposite party to cancel the policy and the opposite party failed to inform the status of renewal inspite of receiving the amount on 7-12-07. The complainant again got issued another notice on 21-5-08 informing the opposite party that he is ready to send the proof of insurance obtained from other insurer provide that the opposite party admit his claim. But there is no reply. Inspite of receipt of the said amount the opposite party failed to renew the policy which amounts to deficiency of service. Hence this complaint.

    The opposite party filed its counter/written statement denying the contents of the complaint stating that the complainant had taken the policy for Rs.18,587 and it was valid from the period 23-12-06 to 22-12-07. It is contended by the opposite party that during the said policy period the complainant has claimed losses of Rs.6,276/- and the same has been paid by it. Thereafter a renewal notice was addressed to the complainant dated 19-11-07 for payment of premium. However the complainant paid the premium amount ignoring the actual premium amount payable as per the said notice. The complainant paid Rs.14,602 instead of Rs.15,605 the opposite party has received the said amount and insured the car to the extent of the policy premium was paid. Thereafter the opposite party has contacted the complainant for shortfall of the premium amount over the phone. Then the complainant sent a letter dated 5-3-08 inter-alia requesting for refund of premium amount and sought for taxi charges. The opposite party replied on 30-4-08 requesting the complainant to provide proof of insurance with other insurers before cancellation of the cover which is under risk. Thereafter the complainant again addressed a letter on 21-5-08 through his counsel reiterating his demand made in the earlier letter dated 5-3-2008 stating that if the opposite party accepts his demands for taxi fare then he would furnish the particulars of insurance made with another insurance company. The opposite party vide its letter dated 25-06-2008 replied to the said letter inter-alia apologizing for the inconvenience and requested the complainant to submit the documents in order to process cancellation request. Instead of providing the details, the complainant chosen to file the present complaint. It is the contention of the opposite party that it is bound to honour the claim once premium has been received, had there been any loss reported to the opposite party. H it requested the complainant to furnish the details of the insurance policy it any made with the other insurer. The opposite party admitted that it legally liable to refund the premium as the vehicle was covered beyond 22-12-07 until it got insured with other insurer. However as an exceptional case the opposite party decided to refund the premium amount subject to the furnishing proof of insurance with another insurer which the complainant has admittedly failed to do so. The opposite party further states that it had made an offer for an amount of not exceeding Rs.20,000/- towards the refund of the premium paid along with interest at 12% so that the matter could be resolved amicably. The complainant has not accepted for the said amount. With the above contentions, the opposite party seeks the Forum to dismiss the complaint.
    In the course of enquiry, the complainant filed his evidence affidavit reiterating the contents of the complaint and got marked exhibits A1 to A10. As against the oral documentary evidence of the complainant.
    The opposite party contended that they have filed certain documents in support of their case but after perusal of documents it is found that no exhibits were marked on behalf of the opposite party. It appears that the opposite party filed the documents in the section. Hence this documents were not marked as exhibits. Both sides have filed written arguments and advanced oral submissions.


    Points for Consideration :-

    1.Whether there was any deficiency of service on the part of the opposite parties in repudiating the claim of the complainant?
    2.Whether the complainant is entitled to the reliefs sought for?
    3. To what relief?

    Points 1&2:- It is an admitted fact that the complainant obtained a policy (010039516400), from the opposite party no.1 by paying premium amount Rs.18,587/-. The said policy was in force from 23-12-06 to 22-12-07 vide Exhibit A1 (Last Page). It is the say of the complainant that he has received a phone call from the opposite party No.1 on 7-12-07 requesting him to remit the premium amount of Rs.14,602/- where as it is contended by the opposite parties that the complainant has to pay Rs.15,605 towards renewal of the policy . It is also contended by the opposite party that the its tele caller might have informed the complainant to pay the renewal premium amount of Rs.14,602/-, as such the complainant paid premium amount as mentioned by the telecaller by ignoring their renewal notice, as such the complainant paid lesser amount therefore the opposite party insured the complainant’s car to the extent of premium paid by the complainant. There is no material to show that the opposite parties requested the complainant to pay the premium amount of Rs.15,605. It is also noticed from Exhibit A2 that an amount of Rs.14,602 was paid by the complainant to the opposite party. As there is no response from the opposite parties with regard to renewal policy, the complainant vide Exhibit A3 dated 24-1-08 addressed a letter to the opposite party to refund the amount of Rs.14,602 paid towards renewal amount. It is also notice from Exhibit A4 that the complainant again issued a legal notice on 5-3-2008 requesting the opposite party to refund the premium amount paid through his credit card without any further delay. There is no proof to show that the opposite party renewal the policy inspite of receiving the amount. It is noticed from Exhibit A6 that the opposite party wrongly interpreted the request for refund of amount, but processed for cancellation. There is no material to show that the opposite party renewed the policy as contended by the them. Having collected the amount the opposite party ought to have renewed the policy promptly. The opposite party failed to communicate anything with regard to renewal of the policy and kept the complainant in dark.. The complainant again issued a legal notice vide Exhibit A7 on 21-5-08 informing the opposite party, that he never asked for cancellation of the policy and made it clear to inform about the status of policy but there is no response. There is no doubt that the opposite party even after collecting the premium amount of Rs.14,602 towards the renewal of the policy failed to process the same. Even after filing of the complaint, the opposite party has not come forward to say that after collecting the premium amount, policy was renewed or at least to communicate about less payment as contended by the opposite party. The entire record goes to show that the opposite party ket silent after collecting the amount and infact the complainant has paid an amount of Rs.14,602 to the opposite party as informed by the employee of the opposite party. The attitude of the opposite party in not renewing the policy or returning the amount, amounts to causing mental agony to the complainant. In view of our above discussion, the claim of the complainant has to be allowed as there is clear deficiency of service on the part of the opposite party..


    Point No.3:- In the result the complainant’s claim is partly allowed and we direct the opposite parties 1&2 to refund Rs.14,602(Rupees fourteen thousand six hundred and two only) together with interest at 12% p.a. from 7-12-07 till the date of realization and further directed to pay 5,000/-(rupees five thousand only) as compensation and 1,000/- (Rupees one thousand only) as costs to the complainant within two months from the date of receipt of this order.

  6. #6
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    Jagmeet Singh son of Shri Harjinder Singh, resident of C-5, Bhai Randhir Singh Nagar, Ludhiana.

    Vs.

    1. M/s Tata AIG General Insurance Company Limited, Ahura Centre, 4thFloor, 82, Mahakali Caves Road, Andheri (E) Mumbai-400 093, through its Chairman/Managing Director.

    2. M/s Tata AIG General Insurance Company Limited, Branch Office at Ludhiana, through its Manager.


    1. This complaint was filed by the complainant for not clearing his insurance claim of vehicle no. DL3CQ9666, insured vide policy no.0150047087 with the opposite party.

    2. Case of the complainant is that his brother Sh. Gupreet Singh was going to Apollo Hospital in the insured car, when it met with an accident and caused damage thereto. Claim was lodged and surveyor was appointed by the opposite party. Lally Motors Limited, Dhandari Kalan, G.T. Road, Ludhiana gave estimate of loss of Rs.2,39,821.12p in the presence of representative of the opposite party. The car was got repaired. Claim lodged but not cleared by the opposite party. Same is claimed to be deficiency in service on their par.

    3. Opposite party in reply took objection that the complaint is not maintainable, as his claim was closed due to non submission of the documents demanded vide letters dated 26.2.2008, 6.3.2008, 27.3.2008, 16.4.2008 and letters of the surveyor dated 27.2.2008, 6.3.2008, 7.4.2008 and 17.4.2008. The gist of plea is non furnishing of the following documents:

    1) Duly completed claim form (Blank claim form attached)]

    2) Driving License (of the person driving the vehicle) and Permanent Registration Certificate in original for verification and return.

    3) Detailed cause of accident

    4) Reasons for delayed reporting of the claim

    5) Police report/FIR

    6) Spot Photographs

    7) Details of injuries to the occupants/third party

    8) Towing receipt

    9) Identity Proof

    10.Proof of Residence


    4. So, claimed that there was no deficiency in service as the complainant has himself failed to comply with the requirements of the opposite party.

    5. When the case taken today for evidence of the complaint, it occurred that the case in view of the plea of the parties can be settled. After hearing qua settlement of the parties, we according pass following order:

    a) Complainant shall make available within one month of this order, copy of the documents mentioned above at serial no.1 to 10, if possessed by him, to the opposite party. If certain documents not possessed, then he shall convey clearly reasons to the opposite party for not making available those documents as not possessed by him.

    b) The opposite party thereafter shall decide the claim of the complainant within 45 days from the receipt of documents from the complainant by the opposite party. It is made clear that if the claim is not settled by the opposite party to the satisfaction of the complainant, he shall have legal recourse open.

    6. With above mentioned observations we dispose off the complaint. No order as to costs. Copy of the order be supplied to the parties free of costs. File be completed and consigned to record.

  7. #7
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    1. Meenakshi Manocha Daughter of Sh.Kamal Manocha, 1, Jindal Complex, Talab Mandir Road, Ludhiana-141 008 now at house no.1634, Sector-39, Chandigarh Road, Ludhiana.

    2. Kamal Manocha resident of 1, Jindal Complex, Talab Mandir Road, Ludhiana-141 008 now at house no.1634, sector-39, Chandigarh Road, Ludhiana.

    ….Complainant.


    Versus



    1- TATA AIG General Insurance Company Limited, Ahura Centre, Fourth floor, 82, Mahakali caves Road, Andheri (E), Mumbai-400 093 through its General Manager.(Claims).

    2- TATA AIG General Insurance Company Limited, Registered Office: Peninsula Corporate Park, Nicholas Piramal Tower, Ninth Floor, G.K.Marg, Lower Parel, Mumbai-400 013 through its Chairman/General Manager.

    3. TATA AIG General Insurance Company Limited, Feroze @@@@hi Market, Ludhiana through its Branch Head.

    ….Opposite parties.




    O R D E R

    T.N. VAIDYA, PRESIDENT: Sh.Kamal Manocha complainant No.2 for self and daughter Ms.Meenakshi Manocha complainant no.1 had taken Health Insurance policy from OPs by paying premium of Rs.2821/-. Unfortunately, Meenakshi Manocha complainanant no.1 on 06.02.2008 suffered ailment and resultantly was admitted on 06.02.2008 in Bassi Hospital Private Limited, Ludhiana, where Laproscopic surgery for removal of Gall Blader stone was done and discharged therefrom on 07.02.2008. A sum of Rs.17140/- was spent on treatment under the policy no.HCP 02000007431. Claim was lodged with OPs, who rejected on 04.03.2008. Rejection was objected by the complainant vide letter dated 20.4.2008.


    Thereafter, OPs sent on 04.06.2008 a cheque of Rs.2000/- as full and final payment qua hospitalisation of complainant no.1., though complainant have spent Rs. Rs.17140/- on treatment and OPs sprinkled salt on the wound by paying meagre amount of Rs.2000/- only. Then took up matter with the OPs they expressed inability to pay beyond Rs.2000/-. He Produced and demanded entire amount spent on treatment, but to no avail, so not clearing the claim complainant alleges that OPs are deficient in rendering services. So, liable to pay the amount spent on treatment alongwith compensation Rs.20000/- and litigation cost of Rs.1000/-. Such prayer is made in this complaint under section 12 of the Consumer Protection Act, 1986.

    2. Opposite parties in reply admitted obtaining Health Insurance policy by the complainants, and that the claim was rightly repudiated in terms of Insurance policy. She was entitled for one day claim of Rs.2000/- under the policy which amount had been paid. Conditions of the policy has not been infringed, rather stands adhered. Hence, there is no deficiency in service on their part and complaint deserves dismissal.

    3. Both parties adduced evidence in support of their claims by way of affidavits and documents. We have heard ld. counsels for parties and have carefully gone through the entire record.

    4. Ld. counsel for the complainant argued that Health Insurance policy was purchased from OPs by paying premium of Rs.2000/- through cheque, but they never furnished policy to the complainants and when claim was lodged they rejected it on the grounds of non receiving of Insurance premium, when complainant took up the matter with Insurance Regulatory & Development Authority (hereinafter referred as ‘IRDA’) thereafter, OPs admitted purchasing of Health Insurance policy by the complainant, but did not supply copy of Insurance policy to them. Hence, such deliberate act on the part of OPs amounts to deficiency in service. Whereas on behalf of Ops, it was argued that the policy was supplied and the claim admissible under the policy was paid and nothing more is payable to the complainant. Therefore, there is no deficiency on the part of OPs.

    5. First of all, we will consider whether OPs had supplied policy to the complainant, so as to bound them with terms and conditions of the policy. Because law is settled that till policy conditions are supplied to the insured by the insurer, the insured would not be bound by such uncommunicated conditions contained in the policy. In support of this proposition of law, we rely on cases reported in Hon’ble Orissa State Commission in New India Assurance Co. Ltd. & Anr. Vs Patitapaban Karan 2008(1)CLT-177(Orissa State Commission) and Hon’ble U.T. State Commission, Chandigarh in New India Assurance Co. Ltd. Vs Saroj Sian & Anr. 2008 (1) CLT-178 (UT Chandigarh).

    6. Argued on behalf of opposite party that parties to the insurance policy would be bound by terms and conditions of the agreement. In support, drew our attention to a case reported in Vijay Kumar Salwan Vs Life Insurance Corp. of India 1998(2) CPC-536 (Punjab State Commission). But with due respect, we venture to record that this authority would have no bearing to the case in hand. As OPs never furnished him copy of policy containing terms and conditions. Unless and until, such thing was done by them, complainants would not be bound by the unilateral terms and conditions, which they never brought to the notice of the insured.

    7. Hon’ble Orissa State Commission in New India Assurance Co. Ltd. & Anr. Vs Patitapaban Karan 2008(1)CLT-177(Orissa State Commission), has held that where insurance company has not adduced any evidence to prove that exclusion clause of policy were brought to notice of complainants, reliance of insurance company on exclusion clause, is of no avail.

    8. Same view was held by the Hon’ble U.T. State Commission, Chandigarh in New India Assurance Co. Ltd. Vs Saroj Sian & Anr. 2008 (1) CLT-178 (UT Chandigarh), wherein, it was held that insurance company was liable under the policy, as exclusion clause was not disclosed to the insured and it was not part of the policy.

    9. Complainant no.1 when got treatment in the Bassi Hospital Private Limited, Ludhiana, furnished discharge summary Ex.C2 alongwith ultra sound and lodged insurance claim with Ops Ex.C3, lab report Ex.C4 and invoice Ex.C5 to Ex.C10 and the same was intially rejected by OPs vide their letter Ex.C19 dated 14.2.2007. It was conveyed under this letter to the complainant that the premium was not received by them and sought copy of bank statement showing clearance of the cheque. Complainant has placed on record of the file Ex.C1 copy of saving bank account, showing withdrawl on 30.07.2007, the amount of Rs.2821/- withdrawn from her account qua cheque issued to OP-Insurance Company. This means cheque of Insurance Premium was credited by OPs and thereafter amount of cheque was debited from her account. When OPs had denied receipt of Insurance premium, then naturally there is no question of issuance of Insurance policy by them in her favour.

    10. Earlier complainants had taken her grouse against OPs to IRDA protesting repudiation on her claim by OPs. The authority acknowledged the complainant vide letter Ex.C18 dated 24.5.2007. They forwarded copy of complaint of complainant to OP for resolving of the matter at their end. Sequel, thereto OP admitted receipt of Insurance premium from the complainant and settled her claim for Rs.2000/- only, vide letter Ex.C16 dated 17.07.2008 on ground that only that amount was payable under terms and conditions of the policy.

    11. Earlier OP vide letter dated Ex.C13 dated 09.05.2008 required complainant to submit proof of hospitalisation of two days. In response to communications from the complainants, OPs vide letter Ex.C11 dated 4.3.2008 conveyed to the complainants that only sickness coverage for one day under the policy was payable. Complainants did not encash the cheque of Rs.2000/- as full claim was not paid and conveyed the same to OPs vide letter Ex.C13 dated 23.07.2008.

    12. Now we shall come to the grounds taken by OPs to repudiate the claim. Rejection has been relied on the basis of Ex.R1 policy schedule of the health insurance policy, Ex.R2 policy schedule. Ex.R1 shows that premium was received to cover benefits:

    1) In hospital indemnity for accident to the extent of Rs.4000/- per day upto 180 days;

    2) In hospital indemity for sickness Rs.2000/- per day upto 180 days and one day deductable;

    3) Accident medical expense re-imbursement upto Rs.15000/- on insured deductable.

    13. It is in this background argument, that in case of sickness of the insured, liability of insurance company was Rs.2000/- per day and first day was deductable. Complainant no.1 remained indoor patieient for two days only. Therefore under the policy schedule for one day hospitalisation, Rs.2000/- per day was admissable. Therefore, terms and conditions of the policy were complied by OPs and not infringed.

    14. Aforesaid aspects would have been of much value to the OPs had they proved supplying copy of insurance policy to the complainant. There is no proof that terms and conditions of the pollcy were brought to notice of the insured/complainants or policy was supplied to them. Initially, OP denied receipt of Insurance premium cheque from the complainant. When subsequently, she took the matter with IRDA, OPs conceeded receipt of Insurance premium. But it happened after complainant no.1 had taken treatment under the insurance policy.


    Till that time no policy conditions were supplied to them. Therefore, complainants would not be bound by terms and conditions of the policy Ex.R1 and Ex.R2, as they never furnished them. Complainants had obtained insurance cover policy from OP by paying premium. In these circumstances, we feel that after lodging of the claim, OP prepared and provided complainant such policy which only indemnifies sickeness upto Rs.2000/- per day and deducting one day expenses. Probably they did it to save their skin from clearing claim of the complainants. Though case of the complainants that had taken health insurance policy from OP there is nothing to show that they had opted under health insurance for the policy Ex.R1 and Ex.R2.

    15. We feel in these circumstances, OPs were not justified in rejecting the claim and subsequently, paying only Rs.2000/- amount admissible under the policy. Because they had not brought terms and conditions of policy to notice of complainants. By not giving the claim, OPs woud be guilty of misconduct resorting to unfair trade practice.

    16. In view of the aforesaid discussions, we allow this complaint as a result direct OP to pay entire claim of amount of Rs.,17140/- to the complainant and for causing harassment, ordered to pay compensation, litigation cost compositly assessed at Rs.2500/-. Order be complied within 45 days of receipt of copy of order. Copy of order be made available to the parties free of costs. File be completed and consigned.

  8. #8
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    V. Surendran

    S/o. Vasu

    Vasu Nivas

    Neithala

    Erattakulam Post

    Palakkad – 678 622 - Complainant





    V/s


    1. Tata AIG Life Insurance Co Ltd

    Delphi – B Wing, 2nd Floor Arcade Avenue

    Hiranandani Business Park

    Powai

    Mumbai – 400 076

    (Adv .C. Madhavankutty )

    2. P. Vijaya Menon

    S/o. K. Krishnan Nair

    Perumbullisssery

    Cherpu

    Thrissur – 680 561. - Opposite Parties



    O R D E R




    Complainant availed a mediclaim policy from the Ist opposite party through 2nd opposite party who is the agent of the Ist opposite party. The period of the policy was from 01/11/2006 to 31/10/2007. The case of the complainant is that he was admitted in Palana Hospital, Palakad on 14/08/2007 due to hypertension. Later he was referred to K G Hospital, Coimbatore. The doctors at K G Hospital adviced brain surgery and the said surgery was done. Complainant preferred a claim form along with the requisite documents to the opposite parties on 08/10/2007. Ist opposite party sent a reply repudiating the claim on 17/01/2008 stating that the complainant was suffering from hypertension, dyslipidemia and had history of dispynea and was advised for angiogram prior to the date of applicaiton and that was not disclosed in the application dated 01/11/2006. According to the complainant, he was not suffering from any of such diseases except hypertension which was

    - 2 -

    brought under control. Hypertention is not a disease which affect patients health permanently and is not a justification for repudiation. Complainant caused a lawyer notice dated 27/02/2008 against the Ist opposite party. Ist opposite party sent no reply. Complainant claim a total amount of Rs.4,00,000/- including the hospital expenses. Complainant claims no relief against the 2nd opposite party.




    Contentions setforth by the Ist opposite party is as follows:




    Ist opposite party admits the policy and the happening of the incident within the period of the policy. According to Ist opposite party, the complainant concealed material facts regarding his health in the proposal form. Further complainant has answered in negative for the question that whether he is in the habit of drinking and smoking. Discharge summary issued by the K G Hospital also reveals the fact that the complainant was a chronic alcoholic and smoker for the past 20 years. Complainant has fraudulently suppressed this fact in the proposal form. Again the medical certificate dated 01/12/2007 also clearly shows that complainant was suffering from hypertention for the past 2 years.


    The same can be ascertained from the discharge summary prepared by Palana Institute of Medical Science dated 14/08/2007. The discharge summary clearly shows that complainant suffered from accelerated hypertention with mild renal failure and was treated at local hospital. It also reveals the fact that the complainant was experiencing dyspnea on excretion class II since 9 months. Thus non disclosure of past medical history will lead to rescinding of the policy. Hence there is no deficiency in service on the part of opposite party.




    The evidence adduced consists of the affidavit of the complainant and Exhibit A1 to A3 marked on the side of the complainant. Ist opposite party filed affidavit . Exhibit B1 to B9 marked on the side of Ist opposite party. 2nd opposite party has not filed any affidavit.

    Now the issues are:

    1. Whether there is any deficiency in service on the part of opposite parties?

    2. If so, what is the reliefs and cost?

    Issue No.1

    There is no dispute as to issuance of the policy and that the incident took place within

    - 3 -

    the period of the policy. The only reason stated in the repudiation letter is that the complainant has concealed past medical history regarding hypertension, dyslipidemia, dyspnea on excretion class II and was adviced for angiogram. Opposite party is relying on Ext.B9 series for substantiating this contentions. We are not in a position to accept the said conention in the absence of convincing evidence. Mere narration of the diseases under the head history in the discharge summary is not at all a convincing evidence. Further there is no whisper regarding the fact that the complainant was a chronic alcoholic and is in the habit of smoking for the past 20 years in the repudiation letter. Moreover opposite party has not established that these are material facts leading to the diseases for which claim is prefered.


    Opposite party has produced Exhibit B7 which is the certificate issued by the concerned doctor of K G Hospital, Coimbatore where in it is stated that the complainant was suffering from hypertention for the last 2 years. Opposite party has not taken any steps to examine the signatory of the said certificate. No affidavit of the concerned doctor also filed. Hence we are not in a position to rely on the said document. In lIC of India V Babri Nageswaramma and Other II(2005) CPJ 9 (NC), it was held that doctors certificate without affidavit in support is no basis for repudiating the claim.




    It is settled law that in case the insured suppresses any material fact that adversely affects the policy, the onus to prove material concealment lies on the insurer. Here Opposite party failed to establish the same with cogent and convincing evidence.




    In the aforesaid facts and circumstances, we are of the view that the act of opposite party in repudiating the genuine claim of the complainant amounts to deficiency in service on their part.




    Issue No.2

    As deficiency in service on the part of the Ist Opposite party is established complainant is entitled for the claim amount together with compensation. Complainant has claimed an amount of Rs.4 lakhs under different heads. Supporting documents are not produced before the Forum. As per the policy 2,50,000/- is seen as the face amount. Complainant has not claimed any relief against the 2nd opposite party.

    - 4 -

    Hence complaint allowed. Ist opposite party is directed to pay an amount of Rs.2,00,000/- being the claim amount together wth Rs.5,000/- as compensation for the deficiency in service on the part of the Ist opposite party and Rs.1000/- as cost of the proceedings. Order shall be complied within one month from the date of receipt of order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realization.

  9. #9
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    1. Meenakshi Manocha Daughter of Sh.Kamal Manocha, 1, Jindal Complex, Talab Mandir Road, Ludhiana-141 008 now at house no.1634, Sector-39, Chandigarh Road, Ludhiana.

    2. Kamal Manocha resident of 1, Jindal Complex, Talab Mandir Road, Ludhiana-141 008 now at house no.1634, sector-39, Chandigarh Road, Ludhiana.

    ….Complainant.

    Versus



    1- TATA AIG General Insurance Company Limited, Ahura Centre, Fourth floor, 82, Mahakali caves Road, Andheri (E), Mumbai-400 093 through its General Manager.(Claims).

    2- TATA AIG General Insurance Company Limited, Registered Office: Peninsula Corporate Park, Nicholas Piramal Tower, Ninth Floor, G.K.Marg, Lower Parel, Mumbai-400 013 through its Chairman/General Manager.

    3. TATA AIG General Insurance Company Limited, Feroze @@@@hi Market, Ludhiana through its Branch Head.

    ….Opposite parties.







    O R D E R

    T.N. VAIDYA, PRESIDENT: Sh.Kamal Manocha complainant No.2 for self and daughter Ms.Meenakshi Manocha complainant no.1 had taken Health Insurance policy from OPs by paying premium of Rs.2821/-. Unfortunately, Meenakshi Manocha complainanant no.1 on 06.02.2008 suffered ailment and resultantly was admitted on 06.02.2008 in Bassi Hospital Private Limited, Ludhiana, where Laproscopic surgery for removal of Gall Blader stone was done and discharged therefrom on 07.02.2008. A sum of Rs.17140/- was spent on treatment under the policy no.HCP 02000007431. Claim was lodged with OPs, who rejected on 04.03.2008. Rejection was objected by the complainant vide letter dated 20.4.2008.


    Thereafter, OPs sent on 04.06.2008 a cheque of Rs.2000/- as full and final payment qua hospitalisation of complainant no.1., though complainant have spent Rs. Rs.17140/- on treatment and OPs sprinkled salt on the wound by paying meagre amount of Rs.2000/- only. Then took up matter with the OPs they expressed inability to pay beyond Rs.2000/-. He Produced and demanded entire amount spent on treatment, but to no avail, so not clearing the claim complainant alleges that OPs are deficient in rendering services. So, liable to pay the amount spent on treatment alongwith compensation Rs.20000/- and litigation cost of Rs.1000/-. Such prayer is made in this complaint under section 12 of the Consumer Protection Act, 1986.

    2. Opposite parties in reply admitted obtaining Health Insurance policy by the complainants, and that the claim was rightly repudiated in terms of Insurance policy. She was entitled for one day claim of Rs.2000/- under the policy which amount had been paid. Conditions of the policy has not been infringed, rather stands adhered. Hence, there is no deficiency in service on their part and complaint deserves dismissal.

    3. Both parties adduced evidence in support of their claims by way of affidavits and documents. We have heard ld. counsels for parties and have carefully gone through the entire record.

    4. Ld. counsel for the complainant argued that Health Insurance policy was purchased from OPs by paying premium of Rs.2000/- through cheque, but they never furnished policy to the complainants and when claim was lodged they rejected it on the grounds of non receiving of Insurance premium, when complainant took up the matter with Insurance Regulatory & Development Authority (hereinafter referred as ‘IRDA’) thereafter, OPs admitted purchasing of Health Insurance policy by the complainant, but did not supply copy of Insurance policy to them. Hence, such deliberate act on the part of OPs amounts to deficiency in service. Whereas on behalf of Ops, it was argued that the policy was supplied and the claim admissible under the policy was paid and nothing more is payable to the complainant. Therefore, there is no deficiency on the part of OPs.

    5. First of all, we will consider whether OPs had supplied policy to the complainant, so as to bound them with terms and conditions of the policy. Because law is settled that till policy conditions are supplied to the insured by the insurer, the insured would not be bound by such uncommunicated conditions contained in the policy. In support of this proposition of law, we rely on cases reported in Hon’ble Orissa State Commission in New India Assurance Co. Ltd. & Anr. Vs Patitapaban Karan 2008(1)CLT-177(Orissa State Commission) and Hon’ble U.T. State Commission, Chandigarh in New India Assurance Co. Ltd. Vs Saroj Sian & Anr. 2008 (1) CLT-178 (UT Chandigarh).

    6. Argued on behalf of opposite party that parties to the insurance policy would be bound by terms and conditions of the agreement. In support, drew our attention to a case reported in Vijay Kumar Salwan Vs Life Insurance Corp. of India 1998(2) CPC-536 (Punjab State Commission). But with due respect, we venture to record that this authority would have no bearing to the case in hand. As OPs never furnished him copy of policy containing terms and conditions. Unless and until, such thing was done by them, complainants would not be bound by the unilateral terms and conditions, which they never brought to the notice of the insured.

    7. Hon’ble Orissa State Commission in New India Assurance Co. Ltd. & Anr. Vs Patitapaban Karan 2008(1)CLT-177(Orissa State Commission), has held that where insurance company has not adduced any evidence to prove that exclusion clause of policy were brought to notice of complainants, reliance of insurance company on exclusion clause, is of no avail.

    8. Same view was held by the Hon’ble U.T. State Commission, Chandigarh in New India Assurance Co. Ltd. Vs Saroj Sian & Anr. 2008 (1) CLT-178 (UT Chandigarh), wherein, it was held that insurance company was liable under the policy, as exclusion clause was not disclosed to the insured and it was not part of the policy.

    9. Complainant no.1 when got treatment in the Bassi Hospital Private Limited, Ludhiana, furnished discharge summary Ex.C2 alongwith ultra sound and lodged insurance claim with Ops Ex.C3, lab report Ex.C4 and invoice Ex.C5 to Ex.C10 and the same was intially rejected by OPs vide their letter Ex.C19 dated 14.2.2007.


    It was conveyed under this letter to the complainant that the premium was not received by them and sought copy of bank statement showing clearance of the cheque. Complainant has placed on record of the file Ex.C1 copy of saving bank account, showing withdrawl on 30.07.2007, the amount of Rs.2821/- withdrawn from her account qua cheque issued to OP-Insurance Company. This means cheque of Insurance Premium was credited by OPs and thereafter amount of cheque was debited from her account. When OPs had denied receipt of Insurance premium, then naturally there is no question of issuance of Insurance policy by them in her favour.

    10. Earlier complainants had taken her grouse against OPs to IRDA protesting repudiation on her claim by OPs. The authority acknowledged the complainant vide letter Ex.C18 dated 24.5.2007. They forwarded copy of complaint of complainant to OP for resolving of the matter at their end. Sequel, thereto OP admitted receipt of Insurance premium from the complainant and settled her claim for Rs.2000/- only, vide letter Ex.C16 dated 17.07.2008 on ground that only that amount was payable under terms and conditions of the policy.

    11. Earlier OP vide letter dated Ex.C13 dated 09.05.2008 required complainant to submit proof of hospitalisation of two days. In response to communications from the complainants, OPs vide letter Ex.C11 dated 4.3.2008 conveyed to the complainants that only sickness coverage for one day under the policy was payable. Complainants did not encash the cheque of Rs.2000/- as full claim was not paid and conveyed the same to OPs vide letter Ex.C13 dated 23.07.2008.

    12. Now we shall come to the grounds taken by OPs to repudiate the claim. Rejection has been relied on the basis of Ex.R1 policy schedule of the health insurance policy, Ex.R2 policy schedule. Ex.R1 shows that premium was received to cover benefits:

    1) In hospital indemnity for accident to the extent of Rs.4000/- per day upto 180 days;

    2) In hospital indemity for sickness Rs.2000/- per day upto 180 days and one day deductable;

    3) Accident medical expense re-imbursement upto Rs.15000/- on insured deductable.

    13. It is in this background argument, that in case of sickness of the insured, liability of insurance company was Rs.2000/- per day and first day was deductable. Complainant no.1 remained indoor patieient for two days only. Therefore under the policy schedule for one day hospitalisation, Rs.2000/- per day was admissable. Therefore, terms and conditions of the policy were complied by OPs and not infringed.

    14. Aforesaid aspects would have been of much value to the OPs had they proved supplying copy of insurance policy to the complainant. There is no proof that terms and conditions of the pollcy were brought to notice of the insured/complainants or policy was supplied to them. Initially, OP denied receipt of Insurance premium cheque from the complainant. When subsequently, she took the matter with IRDA, OPs conceeded receipt of Insurance premium. But it happened after complainant no.1 had taken treatment under the insurance policy.


    Till that time no policy conditions were supplied to them. Therefore, complainants would not be bound by terms and conditions of the policy Ex.R1 and Ex.R2, as they never furnished them. Complainants had obtained insurance cover policy from OP by paying premium. In these circumstances, we feel that after lodging of the claim, OP prepared and provided complainant such policy which only indemnifies sickeness upto Rs.2000/- per day and deducting one day expenses. Probably they did it to save their skin from clearing claim of the complainants. Though case of the complainants that had taken health insurance policy from OP there is nothing to show that they had opted under health insurance for the policy Ex.R1 and Ex.R2.

    15. We feel in these circumstances, OPs were not justified in rejecting the claim and subsequently, paying only Rs.2000/- amount admissible under the policy. Because they had not brought terms and conditions of policy to notice of complainants. By not giving the claim, OPs woud be guilty of misconduct resorting to unfair trade practice.

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    FIRST APPEAL NO.814/2009 Date of filing: 04/06/2009

    IN CONSUMER COMPLAINT NO.239/2005

    DISTRICT CONSUMER FORUM : SOUTH MUMBAI

    @ MISC.APPLICATION NO.923/2009 Date of order : 03/12/2009



    Shri Ramji Gupta

    R/o.Plot no.U-4, Sector 4

    Airoli, Navi Mumbai 400 708 ……..Appellant/org.complainant

    v/s.

    M/s.TATA AIG General Insurance Co.Ltd.

    Mumbai House, 24, Homi Modi street

    Mumbai 400 001 …….Respondent/org.O.P.



    Quorum: Justice Mr.S.B.Mhase, Hon’ble President

    Mr.S.R.Khanzode, Hon’ble Judicial Member

    Present: None for the appellant.

    : ORAL ORDER:

    Per Justice Mr.S.B.Mhase, Hon’ble President

    Matter was heard on 11/8/2009 and notice before admission was issued r/o.03/12/2009. Hamdast was also ordered. Thereafter appellant has not complied with the order and not taken hamdast also. Appellant is absent today. Under these circumstances, there is no option but to dismiss the appeal. Hence the order:-

    ORDER

    Appeal stands dismissed for non prosecution.

    Copies of the order be furnished to the parties.

  11. #11
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    Consumer Complaint No.123/08

    Date of presentation: 21.5.2008

    Date of decision: 6.11.2009

    Jatin Thakur Palampur Radiology Centre, Scandal Point, Near Yamini Hotel, Palampur, Tehsil Palampur, District Kangra (HP)

    Complainant

    Versus


    Tata AIG General Insurance Company Ltd. 2nd Floor, SCO 232,234, Sector 34-A, Chandigarh-UT Opposite party

    Complaint under section 12 of the Consumer Protection Act, 1986
    PRESIDENT: R.K.MITTAL

    MEMBER: PARDEEP DOGRA

    For the complainant: Sh. Jatinder Sharma, Advocate

    For the O.Ps: Sh. Neeraj Bhatnagar, Advocate

    R.K.MITTAL, PRESIDENT (ORAL)

    The brief facts of the complaint, as alleged are that the complainant Sh. Jatin Thakur, being the owner of a Maruti Car bearing registration No.HP-03-A-2609, had got it insured with the opposite party. This vehicle had met with an accident. The complainant had got it repaired from the workshop of “Sangrari Auto Service Maruti Authorized Service Station, Palampur”, by spending a sum of Rs.36329/-. It is alleged that immediately after the accident, telephonic information was sent to the opposite party, regarding the accident, who had told him to get the vehicle repaired, and to send the repair bills to them. The opposite party had deputed Surveyor Sh. Rajinder Sharma, who had inspected the vehicle in the workshop, and had confirmed the claim of the complainant, but they (opposite party), despite repeated requests from him (complainant), did not settle his claim. Rather, his claim was wrongly rejected by the opposite party vide their letter dated 24.4.2007 on the ground that the vehicle was owned by one Sh. Vinod Joshi. The complainant has alleged that at the time of the accident, he himself was this owner of the vehicle, and the vehicle was not in the name of afore-said Mr. Vinod Joshi.

    The complainant has contended that the opposite party by wrongly repudiating his claim, have been deficient in rendering proper services to him, due to which he has suffered mental agony, and un-necessary mental harassment, so he has claimed a sum of Rs.36329/-(the sum spent on the repairs of the vehicle), and has also claimed compensation to the tune of Rs.20,000/-, for his mental agony, and harassment. He has claimed litigation charges to the tune of Rs.5000/-, of this complaint.

    2. The opposite party has contested this complaint by filing their reply on 4.11.2008, in which they have contended that Mr. Jatin Thakur, had purchased the Policy No.0150074161 for insuring his vehicle bearing No.HP03-A-2609, for the period with effect from 11.5.2006 upto 10.5.2007, but the claim intimation was given by Mr. Vinod Joshi, on 7.2.2007. After receiving the intimation, they had appointed Sh. Rajinder Sharma, Surveyor, to carry out the survey of the damages of this vehicle, who after inspection, had assessed the loss to the tune of Rs.30943/-only. It is contended by the opposite party that the damaged vehicle was got surveyed by Mr. Vinod Joshi, who had given in writing, also that he had purchased this vehicle from Sh. Jatin Thakur. They have contended that Sh. Vinod Joshi, had also given a copy of agreement between him, and Sh. Jatin Thakur. So, due to the aforesaid facts, they were not able to process the claim of the complainant, as he had violated the provisions laid down under the General Regulation-17(GR-17) of the “All India Motor Tariff”.

    They have contended that they had not received any request for the transfer of the Insurance Policy either from Mr. Vinod Joshi,( current owner of the vehicle), or from the complainant. Since, no insurable interest existed in the name of the complainant at the time of the accident, after the sale of the vehicle to Mr. Vinod Joshi, and since no insurance policy existed in the name of current owner Mr. Vinod Joshi, so they were not liable to pay the claim either to the complainant, or to the new owner i.e. Mr. Vinod Joshi. They have also contended that this Forum does not have the territorial jurisdiction to entertain this complaint, because as per section 11(2) of the Consumer Protection Act, 1986, a complaint can be instituted in a District Forum, within the local limits of whose jurisdiction the opposite party or each opposite party resides, personally works for gain. Since, the complainant himself has given their (opposite party) address of the Chandigarh City, hence, this Forum does not have the territorial jurisdiction to entertain his complaint. They have contended that since the complainant does not have any cause of action, so, it is not maintainable, and it deserves dismissal.

    3. We have considered the arguments of the learned counsel for both the parties, and we have also carefully gone through the file, facts, and the evidence on the record.

    4. The complainant has supported/corroborated the facts/averments of the complaint, on oath, in his affidavit Ex.CA. Annexure C-1, is the original retail cash memo, to the tune of Rs.36329/-, vide which the complainant had got, repaired his vehicle, through the firm “Sangrai Auto Service, Maruti Authorized Service Station, Near Shietla Mandir, Palampur. Annexure C-3, is the bill dated 21.6.2007, but it does not depict anything in favour of the complainant qua the aforesaid vehicle.

    5. On the other hand, Ex.OPW-1, is the affidavit of Sh. Mohammad Azhar Wasi, Branch Claims Manager, on behalf of the opposite party. Annexure -1, is the “Claims Notification” placed on the file by the opposite party. Annexure-2, is the copy of the survey report, given by the Surveyor Sh. Rajinder Sharma, vide which, he had finally assessed the claim of the complainant to the tune of Rs.30934-94 paise qua the damages/loss of the aforesaid vehicle. The opposite party has also filed one photo copy of alleged letter given by Sh. Vinod Joshi to the Surveyor, in which it is mentioned that he had purchased the vehicle bearing No.HP-03-2609, from Sh. Jatin Thakur. Annexure-4, is the photo copy of the alleged affidavit, given by Dr. Jatin Thakur, qua the selling of this vehicle to Sh. Vinod Joshi. Annexure-6 is the copy of the letter dated 24.4.2007, vide which, the opposite party had repudiated the claim of the complainant.

    6. It is an admitted fact that the complainant Sh. Jatin Thakur, had got insured his vehicle bearing No.HP-03-2609 from the opposite party. The accident is also admitted by both the parties. The only dispute is that since the complainant Sh. Jatin Thakur, had allegedly transferred the vehicle in the name of Sh. Vinod Joshi, but the insurance was not got transferred either by the complainant/vendor (original owner) Sh. Jatin Thakur, or by Mr. Vinod Joshi (Vendee). It is pertinent to mention here the provisions of GR-17 of the All India Motors Tariff, which are as follows:-

    “GR.17.Transfers.

    On Transfer of ownership, the liability only covers, either under liability. Only Policy or under a Package Policy, is deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date f transfer.

    The transferee shall apply within fourteen days from the date of transfer in writing under recorded delivery to the insurer who has insured the vehicle with the details of the registration of the vehicle, the date of transfer of the vehicle, the previous owner of the vehicle, and the number and date of the insurance policy so that he insurer may make the necessary changes in his record, and issue fresh certificate of insurance.

    In case of Package Policies, transfer of the “Own Damage” sanction of the policy in favour of the transferee, shall be made by the insurer only on receipt of a specific request from the transferee alongwith all consent of the transferor. If the transferee is not entitled to he benefit of the NO Claim Bonus (NCB) sown on the policy, or is entitled to a lesser percentage of NCB than that existing in the policy, recovery of the difference between the transferee’s entitlement, if any, and that shown on the policy shall be made before effecting the transfer.

    A fresh proposal form duly completed is to be obtained from the transferee in respect of both Liabilities only and package Polices.

    Transfer of Package Policy in the name of the transferee can be done only on getting acceptable evidence of safe and a fresh proposal form duly filled and signed. The old Certificate of insurance for the vehicle, is required to be surrendered, and a fee of Rs.50/- is to be collected for issue of fresh Certificate in the name of the transferee. If for any reason, the old Certificate of Insurance cannot be surrendered, a proper declaration to that effect is to betaken from the transferee before a new Certificate of insurance is issued.”



    7. The learned counsel for the opposite party has drawn out attention to ruling Consumer Protection Judgments I (2006)-478 in case titled New India Assurance Company Limited Versus Sant Ram Chauhan, decided by our own Hon’ble H.P.State Consumer Disputes Redressal Commission, Shimla, on 8.11.2005. In this ruling, it was held that in case, the vehicle registered in the name of the original owner, the complainant had no insurable interest, after it’s transfer in the name of new owner/vendor, and he is not entitled to benefit of section 157(a), Motor Vehicles Act, 1988.

    8. Although, the opposite party has tried to lead evidence to the effect that the complainant Sh. Jatin Thakur, had sold the vehicle to Mr. Vinod Joshi, but the fact has to be kept in mind that the copy of the registration certificate of this vehicle in dispute, has not been filed by either of the party in this case. We are not certain of the position that whether the name of the original owner Sh. Jatin Thakur has been replaced in the original registration certificate, or not. Merely filing a photo copy of the alleged affidavit, and one photo copy of application given by Mr. Vinod Joshi, to the Surveyor, does not prove the transfer of the ownership of the vehicle, in the name of alleged vendee Sh. Vinod Joshi, because these documents, have not been attested by any one. Although, the opposite party has contended in their reply that during the inspection of the vehicle, the new owner/Vendee Sh. Vinod Joshi, had given one copy of agreement, regarding the purchase of the vehicle from the original vendor Sh. Jatin Thakur, but the said copy of the agreement, has not been produced by the opposite party before this Forum, for the reasons best known to them. So, an adverse inference is to be drawn qua this fact. Since the copy of the registration certificate, is not on the file, so, we are unable to ascertain that whether the vehicle in question has been actually transferred in the name of alleged new owner Sh. Vinod Joshi, or not. The learned counsel for the opposite party has drawn our attention towards the affidavit (Ex.OPW-2), given by Sh. Rajinder Kumar Sharma, Surveyor, in which he had assessed the loss to the tune of Rs.30943-94 paise. We may like to mention here that this affidavit does not help the opposite party to any extent, qua ownership of the vehicle, as it does not depict that he had personally obtained the copy of affidavit of Sh. Vinod Joshi, or he had received any copy of agreement, or original application from Sh. Vinod Joshi. The photo copies of the alleged affidavit, and letter (Annexure-3 and 4), does not help the opposite party, at all, as it cannot be relied upon, without it’s proper attestation. The learned counsel for the opposite party has cited another ruling of our own Hon’ble H.P.State Consumer Disputes Redressal commission, Shimla, passed in First Appeal No.545/2007, on 9.4.2009, in case titled as Man Singh Kapoor Versus The New India Assurance Company Ltd. The learned counsel for the opposite party has vehemently submitted that the complainant had no insurable interest in the vehicle in question, at the time of the accident, as the provisions of Section 157 of the Motor Vehicle Act, were more in it’s breach, than compliance by the complainant, because no intimation about the transfer by the registered owner, or by the new vendee was given to them before the date of accident, as envisaged under law read with GR 17 of the India Motor Tariff, 2002, which came into force with effect from 30.6.2002. The rulings cited by the learned counsel for the complainant pertains to GR 10 of the India Motor Tariff, which was in force prior to the coming into force of India Motor Tariff 2002, with effect from 30.6.2002. Since, in the present case, there is no solid proof/evidence on the file that the complainant had actually transferred his vehicle in the registration certificate, in the name of alleged new Vendee Sh. Vinod Joshi. So, we are of the considered opinion that for lack of any solid evidence on behalf of the opposite party, we believe that the vehicle is still in the name of the complainant, and he has an insurable interest in the vehicle/Policy. Hence, the complaint deserves to be partly allowed. We also feel satisfied that due to deficiency in service on the part of the opposite party, the complainant had also suffered mental agony and harassment. So, we assess Rs.2000/-, as compensation, for his mental agony and harassment. We also assess Rs.1000/-, as litigation costs.

    9. No other point has been argued or urged before us.

    10. In view of the discussion made hereinabove, the complaint is partly allowed. We order the opposite party to pay Rs.30943-94 paise (the assessed loss by the independent Surveyor) to the complainant within 30 days after the receipt of copy of this order, failing which, it will carry interest @ 9% per annum, from the date of complaint, till it’s realization. We also direct the opposite party to pay compensation to the complainant to the tune of Rs.2000/-, for his mental agony and harassment, and litigation costs to the tune of Rs.1000/-, which will be paid by the opposite party, within 30 days, after the receipt of copy of this order. The copy of this order be sent to the parties, free of costs, by post, and the file after it’s due completion be consigned to the record-room.

  12. #12
    adv.singh is offline Senior Member
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    C.C.NO.66/2009

    Monday, the 16h day of November, 2009



    Kumaravel Subramaniam

    S/o. Subramaniam,

    18-A, II Street, Tatabad,

    Coimbatore. --- Complainant

    Vs.

    1. TATA AIG Life Insurance

    Company Ltd.,

    5th & 6th Floor, Peninsula Towers,

    Peninisula Corporate Park,

    Ganpatrao Kadam Marg,

    Lower Parel, Mumbai.

    2. Hongkong and Sanghai Banking

    Corporation Ltd.,

    Race Course Road, Coimbatore.

    3. P. Madhukumar,

    Agent of M/s. Hongkong and

    Sanghai Banking Corporation Ltd.,

    Race Course Road, Coimbatore. --- Opposite Parties



    This case coming on for final hearing before us on 10.11.2009 in the presence of Sri. G.R.Senthilnathan and Sri. T.Sivaguru, Advocates for complainant and of Smt. P. Geetha Advocate for the 1st opposite party and of M/s.B.C & Associates Sri A.Sanjiv for the 2nd opposite party and the 3rd opposite party remained absent and set exparte and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:

    ORDER

    Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite parties to pay a sum of Rs.99,000/- with interest to the complainant, to pay a sum of Rs.50,000/- towards compensation for mental agony, and to pay a sum of Rs.5000/- towards cost of the proceedings.

    The averments in the complaint are as follows:

    1. The 1st Opposite Party is a Insurance Company and the 2nd Opposite Party is the Agency Leader of the 1st Opposite Party. The 3rd Opposite Party is the Agent of the 1st and 2nd Opposite Party. The 3rd opposite party as an Agent of 1st and 2nd opposite party approached the Complainant to invest in the 1st opposite party. The complainant expressed his willingness to invest only in the “Mutual Fund Scheme” that too one time investment only and for that the 3rd opposite party agreed and promised him that the amount would be invested only in the “Mutual fund Scheme” and paid Rs.99,000/- each for two Mutual fund Scheme for one time investment. After that the complainant received only one receipt dated 24.11.2007 from the 1st opposite party after lapse of 2 months time. Therefore the complainant on 7.01.2008 wrote a letter to the 1st opposite party calling upon him to issue another receipt, Account Statement for the Investments and Performance details of the Investments. The 1st opposite party refunded Rs.99,000/- by way of cheque dated 27.02.08 with a covering letter dated 28.02.2008.

    2. The complainant on the perusal of the Policy came to know on 13.03.2008 that the amount has been invested only in the Life Insurance Policy. The Policy name is “Invest assure Extra” and the Policy No. is U370021829. The complainant’s great surprise and shock the amount has been invested in the Life Insurance Policy. That is amounting to the “Deficiency of Service”. The 3rd opposite party for his own benefit invested the amount in the Life Insurance Policy without the knowledge and consent of the complainant with an ulterior motive. He is not entitled to do so. His act is amounting to the Breach of trust. Therefore the Complainant sent E-Mails to the 1st Opposite party regarding the wrong investment of the amount in the Life Policy. The Complainant on 13.03.2008 sent an E-Mail to the 1st opposite party narrating all these aspects and called upon him to repay the amount of Rs.99,000/- to him. Even the same has been brought to the knowledge of the opposite parties so far they have not acted fruitfully.

    3. But to the great shock of the complainant the 1st opposite party on 2.12.2008 sent a premium Reminder Notice and called upon him to pay the premium amount on or before 18.12.2008. Therefore the complainant on 12.12.2008 sent a suitable reply to the 1st opposite party and once again called upon him to refund the amount. But the 1st opposite party on 19.12.2008 sent a Policy Lapse Notice to the complainant. Therefore on 31.12.2008 and 6.01.2009 the complainant has sent a suitable reply to the 2nd opposite party. He also met the officials of the 2nd opposite party in person, but all the sincere efforts of the complainant were put in vein due to the non-co operation of the opposite parties.

    The averments in the 1st opposite party are as follows:

    4. The complainant had the option to seek a cancellation of Policy within the free look period. The instant complaint is, therefore, a clear case of after thought and a bid to misuse the process of law to cover up for delay on his own pat. The complaint is therefore liable to be dismissed. The opposite party had not made any false promises or provided any untrue or incomplete information in regard with the policy and hence, the complainant was fully aware of the terms and conditions of the policies before taking up the policies with the opposite party. Hence, the claim is not maintainable in law and is liable to be dismissed. That upon receipt of the Application Form along with an amount of Rs.99,000/- paid towards the initial premium, the opposite party on 17.11.2007 issued a Policy bearing No. U370021829 to the complainant. The pertinent term and condition with respect to the “Free Look Period” in the Policy Document reads as under:



    “FREE LOOK PERIOD



    You have the right to cancel the Policy by giving written notice

    to the Company and receive the premiums invested into the

    funds at Unit Price as at the date of cancellation along with

    the charges paid after deducting a) for proportionate Morality

    Charges for the period on cover and b) any expenses (such as

    medical examination costs and stamp duty) which have been

    incurred for issuing the Policy. Such notice must be signed by

    you and received directly by the Company within 15 days after you

    receive the Policy.”

    5. That upon not receiving the premium due on 17.11.2008, the opposite party again sent a premium payment reminder dated 2.12.2008 and requested the complainant to make the payment at the earliest. Thereafter the opposite party received a letter dated 12.02.2008 wherein the Complainant stated that the said Policy was misold to her as a single premium Policy and hence requested the cancellation and refund of the premium amount paid towards the Policy. The opposite party vide its letter dated 19.12.2008, informed the complainant that upon non-payment of outstanding renewal premium due on 17.11.2008 the said Policy bearing No. U370021829 has lapsed. The complainant vide its letter dated 31.12.2008 again requested for the refund of premium amount. The complaint made by the complainant being devoid of merits is liable to be dismissed.

    The averments in the 2nd opposite party are as follows:

    6. The Tata Insurance Policies were processed based on the application form duly signed and acknowledged by the customer. It was clearly mentioned in the application form that the investment was towards the Insurance plan, with customer’s signature intact on the page. If the complainant wanted to invest only in Mutual Funds Scheme, then he should not have agreed to sign the Application form for Insurance Plan. The sums received have been properly invested the receipts and policies issued to the complainant. There can be no deficiency in service as alleged by the complainant. Refusal to agree to the unjust demands of the complainant would not amount to deficiency in service. Consequently there cannot be any mental agony. Hence the claim of Rs.99,000/- by way of refund with interest, and Rs.50,000/- by way of compensation for mental agony sustained by complainant, and a sum of Rs.5,000 towards costs of the complaint are not sustainable at all.

    7. The complainant and opposite parties have filed Proof Affidavit along with documents Ex.A1 to A10 was marked and Ex.B1 to B8 was marked to the opposite parties.



    The point for consideration is

    Whether the opposite parties have committed deficiency in service? If so to what relief the complainant is entitled to?

    ISSUE 1

    8. The opposite parties accepts that the complainant paid two amount of Rs.99,000/- each, but they said in their written version as well as in the proof of affidavit that one amount of Rs.99,000/- was repaid to the complainant and the complainant also accepts that it was invested in the “Mutual Fund”.

    9. But as per Ex.A1 the another Rs.99,000/- was invested in the life insurance policy. The complainant also signed in the application form. The Scheme he invested was “Invest assure Extra”. The opposite party also says that if the complainant does not want to continue in the insurance scheme he might have used the “Free Look Period” of 15 days and get back the money. After an interval of 3 months the complainant cannot claim the policy amount. He also got the policy from the 1st opposite party. The policy No. is U 37002129.

    10. As per the document Ex.A1, the complainant has signed in the Life Insurance application form and he has also affixed his passport size photo in the first page of the application and signed on the photo also. The contention of the complainant that the 1st opposite party issued receipt dated 24.11.2007 for a sum of Rs.99,000/- after lapse of two months time is not correct. Because the complainant submitted his application only on 16.11.2007 with a demand draft No. 010433 which is marked Ex.A1, and the receipt dated 24.11.2007 is marked as Ex.A2. As per Ex.A3, the complainant has requested the opposite party to give information about the other policy. On receipt of this letter the opposite party has returned Rs.99,000/- by way of cheque.

    11. Moreover the complainant has not filed the so called another application form similar to that of Ex.A1, for reason best known to him.

    12. So, we are unable to accept the contention of the complainant that he has invested for two Mutual Fund Scheme, but the 1st opposite party has sent only one policy to the complainant.

    13. On perusal of the records we are able to see that the complainant has invested Rs.99,000/- in “Invest assure Extra Policy No. U370021829” as per the application dated 16.11.2007 and got a receipt for the same dated 24.11.2007, the complainant fails to utilize the free look period of 15 days. The sum received has been invested properly and receipts and policies issued to the complainant. If the complainant wanted to invest in the Mutual Fund Scheme he should not have agree to sign in the application form for Insurance Plan. As rightly pointed out by the opposite party the refusal to agree to the unjust demands of the complainant could not amount to deficiency in service. Hence for the above said reasons complainant is not entitled to get any relief.

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

    Pronounced by us in Open Forum on this the 16th day of November, 2009.

  13. #13
    varunnair87 is offline Junior Member
    Join Date
    Feb 2012
    Posts
    2

    Default Wrong Message conveyed by Insurance Agent of Tata

    I have an Insurance Policy of TATA AIG named Gyan Kosh Policy Number-U151776775.During the Sales Call I was told that I have to invest for 5 yrs. and in the sixth year the amount would be doubled .I could then take out the doubled amount and leave behind some amount say Rs. 50,000/- and I will be insured for my entire life.But now I find that nothing of it there in the Policy.I have addressed several mails to Tata AIG Customer Care but with no response .
    The agent code is:004276285They are now not even cancelling the policy nor refunding nor transferring the amount to another policy.
    Request your help at the earliest.


    Varun R Nair
    Jamshedpur
    Cell-7739820346
    8092684963

  14. #14
    Unregistered Guest

    Default complaint letter agjTata aig

    Dear sir
    I semkhum tonglin one of customer of tata aig insurence policy no. U008591171 from tinsukia branch. Wanted to surrender the policy from 5/10/2012 but the official of tinsukia branch are showing no intrest till today, 26/11/2012 the documents required which needed is submitted on 05/10/2012. They are giving me week after week, whereas it is going to be 2 months now. I kindly request the concern authority to take matter to the concern and neccessary action. The amount which are to recieved is an emargency for me.

  15. #15
    Unregistered Guest

    Default complaint letter agj

    Dear sir
    I semkhum tonglin one of customer of tata aig insurence policy no. U008591171 from tinsukia branch. Wanted to surrender the policy from 5/10/2012 but the official of tinsukia branch are showing no intrest till today, 26/11/2012 the documents required which needed is submitted on 05/10/2012. They are giving me week after week, whereas it is going to be 2 months now. I kindly request the concern authority to take matter to the concern and neccessary action. The amount which are to recieved is an emargency for me.

+ Submit Your Complaint
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