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Thread: United India Insurance

  1. #151
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    Default United India Insurance

    Appeal no. FA-560/2006
    (Appeal against the order dated 09.05.2006 passed by District Forum-III, Janak Puri, New Delhi in complaint case no.617/2004)
    Shri Vilash Nagal,

    RZ-50 A, M Block,

    Near Nanak Piao,

    Najafgarh, New Delhi
    …..Appellant/complainant.

    through

    Shri Om Vir Singh , Advocate

    VS
    United India Insurance co. Ltd.,

    Community Centre, Janak Cinema,

    Complex, Janakpuri, New Delhi-58.

    ……Respondent/O.P.

    Through
    Shri Sameer Nandwani, Advocate

    CORAM

    Justice Barkat Ali Zaidi, President.

    M.L. Sahni, Member
    1. Whether reporters of local newspaper be allowed to see the

    judgment?

    2. To be referred to the reporter or not?

    Justice B.A. Zaidi, President.

    1. The brief facts of the case are that a vehicle Swaraj Mazda (Truck) bearing registration no. DL-1-M-0976 belonging to the complainant/ Appellant was insured with the OP/Respondent- United India Insurance Company for a period of one year from 31.07.2002 to 30.07.2003 for an amount of Rs. 5,50,000/-. The Appellant/ complainant held the permit for plying the vehicle in four territories namely Delhi, Medhya Pardesh, Rajasthan and Haryana having validity from 13.08.2001 to 12.08.2008, issued by Secretary (State Transport Authority ) Delhi.

    2. The vehicle met with an accident on 05.07.2003 between Jind (Haryanan) and Khanori (Punjab). The complainant/ appellant got the vehicle repaired and incurred an expenditure of Rs. 1,84,000/- , towards it. He thereafter lodged a claim before the Respondent/OP- Insurance Company to indemnify the incurred amount, which the OP insurance company declined.

    3. The complainant therefore, filed a complaint before District Consumer Forum alleging that the surveyor of the Insurance Company had assessed the loss of the complainant and prayed for passing an award of Rs. 1,84,0000/- incurred towards repairs with interest @ 18% p.a. and also the compensation of Rs. 2 lacs in his favour against the OP Insurance Company.

    4. The OP Insurance Company opposed the claim pleading that the accident took place at Khanori (Punjab) in relation to which the vehicle had no permit as provided u/s 66 of Motor Vehicle Act and it being therefore in violation of the terms of the policy agreement, the OP was not liable to pay any amount towards damages to the vehicle, and it’s repairs.

    5. The District Forum after considering the evidence of both the parties and hearing them , found that the accident took place within the territories of State of Punjab. The vehicle in question did not hold any permit to be plied within the premises of the State of Punjab. The Forum therefore, held that as the vehicle was being plied at the time of accident in contravention of the section 66 of the Motor Vehicle Act, 1988, without a valid permit and the complainant was thus not entitled to receive any claim on basis of the Insurance Agreement and dismissed the complaint.

    6. Aggrieved by the order of the District Forum the complainant has come before this Commission in appeal.

    7. We have hard Shri Omvir Singh, counsel for complainant/appellant and Shri Sameer Nandwani, counsel for OP/respondent.

    8. It is contended on behalf of complainant that the copy of the report lodged at Police Station Kathupatra, Patiala Punjab, in connection of the accident is available on the record which mentions that vehicle had not reached at the barrier of Punjab and had still to cover a distance of 3 - 4 kms more from the place of accident , where it met with an accident. Had it reached at the barrier the driver could have applied and obtained a Temporary permit to take it onwards in Punjab and it cannot therefore be said that the vehicle was being driven in violation of the provisions of section 66 of Motor Vehicle Act and the terms of agreement of the policy. The Trial Forum completely failed to consider this aspect of the matter.

    9. As against this the contention of the counsel for the respondent is that in the aforesaid D.D. Report , it is mentioned that the truck was carrying goods from Pune to Punjab, and therefore, the complainant was required to obtain a temporary permit prior to commencement of the journey of the vehicle from Pune and prior to entering the state of Punjab.



    10. The aforesaid argument advanced from the side of the complainant/appellant that the transport barrier or check post was few kilometers away from the site of accident and that he had intended to obtain the permit for plying in Punjab from there is argument of despair . The unrebutted fact is that he was plying in Punjab Territory without a valid permit when the accident took place. The Insurance Agreement clearly stipulates that in order the insurance agreement may be operative the vehicle has a valid permit for plying. There has been, as such, violation of the insurance agreement and the complainant is not entitled to any insurance benefit in accordance with agreement.

    11. The appeal must therefore fail and is accordingly dismissed.

    12. A copy of this order as per statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and , thereafter , the file be consigned to Record Room.

  2. #152
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    Default United India Insurance

    Appeal no. FA-8/876

    (Appeal against the order dated 30.04.2008 passed by District Forum- New Delhi District , in complaint case no.242/2007)
    Shri Ashwani Arora,

    B-24, Sector-41,

    Noida-201303
    …..Appellant/Complainant.

    in person
    VS

    United India Insurance Co. Ltd.,

    Divisional Office NO. V,

    68/1, Janpath, New Delhi-110002.
    ……Respondent/OP

    through

    Shri S. Ghosh, Advocate
    CORAM



    Justice Barkat Ali Zaidi, President.

    M.L. Sahni, Member



    1. Whether reporters of local newspaper be allowed to see the

    judgment?

    2. To be referred to the reporter or not?


    M.L. SAHNI, MEMBER



    1. By this appeal the complainant (hereinafter referred as to as the Appellant), dis-satisfied with the order passed by the District Consumer Forum (New Delhi District) on 30.04.2008, has prayed for modification of the impugned order to the extent that Opposite Party no. 1 i.e . Respondent here in this appeal, be directed to pay an amount of Rs. 91,584/- towards interest paid by the Appellant to the I.C.I.C. I Bank , who had financed the vehicle in question at Rs. 6,00,000/-.

    2. Undisputed facts of the case are that the appellant purchased a new motor car, Mahindra Scorpion bearing registration No. DL 4 CN B 0646 from the opposite party No. 2 (the dealer) and got the same insured from the Respondent(Opposite Party-1), immediately after its purchase vide insurance policy /cover note in which the value of the vehicle (IDV) was assessed at Rs. 7,21,519/- i.e. 5% less than the priced amount. The car of the Appellant was stolen on the night of 2nd -3rd July, 2006 for which a complaint was made to the local police on 3.7.2006. An FIR was registered on 10.7.2006. On 21.7.2006 the representative of the surveyor of the Respondent namely Pritam Kumar visited the residence of the Appellant and collected some documents and keys of the stolen vehicle vide letter dated 21.7.2006. Thereafter on 26.7.2006 the Appellant wrote a letter to Respondent as well as to ICICI Bank through whom the vehicle was got financed, informing about the representative of the surveyor of Respondent and his collecting documents and keys of the stolen vehicle. Since the vehicle was not traced by the police, hence an untraced report was filed by the police on 10.8.2006. On 11.8.2006 the Appellant handed over the report, original registration certificate and all other documents along with the duplicate keys of the vehicle , as demanded by the Respondent. On 20.8.2006 the Appellant was contacted by the surveyor of the Respondent who asked the complainant to give the consent for deduction of discounts which the appellant had availed from Respondent at the time of purchase of the car. The appellant asked for settlement of his claim on the basis of the IDV amount i.e . on which the Respondent had taken the premium. When the Respondent failed to settle the claim, . the Appellant sent a letter dated 13.02.2007 stating that they have approved the claim for a sum of Rs. 6,78,377/- being the full and final settlement. The appellant refused to accept the said settlement and issued a notice to the Respondent on 24.2.2007, with a copy to OP-2. Therefore, he filed complaint before District Consumer Forum on 17.3.2007.

    3. The respondents, contested the complaint, before the District Forum. By filing reply to the appeal they reiterated that the Appellant had, at the time of proposing for insurance of his vehicle, declared that the selling price of the said vehicle was Rs. 7.59,494/-. The respondent had taken his word for the same and insured his vehicle , after deducting 5 % from the said declared value, as per the terms and conditions of the Insurance Policy for fixing the IDV (Insured’s Declared Value) for the first year. However, after the appellant suffered the loss and the same was surveyed by the Surveyor, it came to the light from the invoice submitted by the appellant, that the appellant had purchased the said vehicle for only Rs. 7,15,134/- i.e. at an amount lesser by Rs. 44,360/- than what was represented by him. However, it is correct that the premium for the above insurance had been deposited by the appellant with the Respondent. The delay in settlement of the appellant’s claim was due to his own refusal to accept the IDV amount offered by the Respondent, calculated at the actual purchase price of the vehicle. The respondent had offered an amount of Rs. 6,78,377/- towards full and final settlement of the appellant’s claim. However, the same amount could not be deposited with the Ld. Forum as there was neither any direction of the Forum, nor any prayer by the appellant seeking the same. The contract of insurance is based on the contract between the seller and the buyer, the IDV of the vehicle is calculated on the actual selling price, based on the insurance contract. The Appellant cannot hide the actual price at which he purchased the vehicle from the seller, give an inflated figure for the same, pay the premium, which is less than 4 % of the said value and get the same insured from the Respondent and later on , claim indemnification based on the inflated figure, which is not the actual cost price. The respondent cannot indemnify the appellant for any amount higher than the IDV calculated at the actual cost price of the vehicle. The present appeal is not maintainable , as it is a consequential loss and is clearly excluded under the terms and conditions of the contract of insurance . Moreover , the appellant has already received a higher amount towards his alleged claim, apart from an amount of Rs. 50,000/- towards compensation and Rs. 10,000/- towards cost of litigation, which have been duly paid by the Respondent and he should have no further grievance regarding the same. The higher amount awarded by the Ld. District Forum towards the insurance claim, alongwith the compensation, covered the aspect of interest and there can be no separate award of interest alongwith compensation.

    4. The Appellant , who had been prosecuting this appeal in person, filed his written submission alongwith case law to fortify his arguments. We have heard the Ld. Counsel for the Respondent. We have also examined carefully the impugned order of the Ld. District forum , whereby the complaint has been allowed providing following relief to the Appellant.

    1. OP-1 (Respondent) will pay to the complainant the entire insurance amount of Rs. 7,21,519/- to the complainant and the complainant will issue a letter of subrogation to the OP and will do all acts necessary to change the title on this vehicle into the name of OP-1 and will also fill forms for transfer authorities for change of title and the complainant will have no title on this vehicle as and when the same is traced out.

    2. OP-1 (Respondent) will pay Rs. 50,000/- towards compensation for causing mental agony and harassment to the complainant.

    3. OP-1 (Respondent) will pay Rs. 10,000/- towards cost of litigation.



    5. We have thoughtfully considered the case law submitted on behalf of parties.

    6. It is contended on behalf of Respondents that interest paid by the Appellant to ICICI Bank on the loan raised by him is subsequent loss suffered by the Appellant and is not payable by the Respondents in view of the order of the National Commission passed in New India Insurance Co. Ltd. Vs Kamal Nayan -IV (2006) CPJ 84(NC), wherein it was observed that, claim regarding subsequent loss cannot be allowed since no separate policy is taken by the complainant relating to consequent loss. Principle of indemnity is to restore status of complainant.

    7. To support his claim, the Appellant has relied upon a number of decisions of this Commission as well as of the Hon’ble National Commission all these judgments, facts of the case in “Abhey Neelwarne Vs The New India Assurance Company Ltd. & Othrs.” decided on 26.3.2008 by the Hon’ble National Commission are quite akin to that of the present case before us. Their lordships modified the order of Karnataka State Commission by directing the Insurance Company to pay interest @ 10% on the amount of Rs. 6.25 lacs for the period from 9th April, 2001 to 21st April, 2003 and also interest @ 10% p.a. on the amount of Rs. 1,17,000/- from 21st April, 2001 till 28th February, 2005. However, the award passed by the State Commission directing the Insurance Company to pay compensation of Rs. 50,000/- is set aside because the payment of interest would take care of compensation part.

    8. Considering the facts of the present case, in the light of the law as discussed in the cited case and observations made there in, we feel satisfied that the appeal can be modified as prayed, but to the extent that the Appellant can either be entitled to compensation or interest.

    9. The Ld. District Forum has awarded compensation of Rs. 50,000/- and the Appellant claims the amount of Rs. 91,584/- paid by him to ICICI Bank on loan of Rs. 6,00,000/-. Thus he can be allowed re-imbursement of that amount by way of compensation. Accordingly, partly allowing the appeal impugned order is modified to the extent that the Respondent shall pay Rs. 91,584/- instead of Rs. 50,000/- awarded by the Ld. District Forum towards compensation. Rest of the impugned order shall remain unaltered and parties shall discharge their respective obligations.

    10. The aforesaid payment shall be made after adjusting the amount , if any, already paid to the appellant within 30 days of the receipt of this order, failing which, Respondent shall be liable to pay interest @ 10% p.a. on the awarded amount.

    11. A copy of this order as per statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum . The file thereafter be consigned to Record Room.

  3. #153
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    Default United India Insurance

    Appeal No. 25/2009.

    Date of Decision 21.12.2009

    In the matter of:

    Balkar Singh son of Shri Netar Singh R/o VPO Chowria,

    Tehsil Bhattiyat, District Chamba, HP.

    Appellant.

    Versus
    The United India Insurance Company Ltd.,

    Near Alishan Hotel, Dalhousie Road, Pathankot, (Pb).

    Respondent.
    Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

    Hon’ble Mrs. Saroj Sharma, Member.

    Hon’ble Mr. Chander Shekher Sharma, Member.

    Whether approved for reporting? Yes.
    For the Appellant.: S/Sh. Tarlok Chauhan & Vijay Chaudhary, Advocates.
    For the Respondent: Mr. Neeraj Gazta, Advocate vice

    Mr. Kulwant Singh Katoch, Advocate.
    O R D E R

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

    This appeal is directed against the order passed by District Forum, Chamba on 27.9.2008. Vide said order passed in Consumer Complaint No. 2/2006, complaint filed by the appellant has been dismissed. Resume of facts giving rise to this case are, that vehicle bearing registration No. HP-57-0855 was admittedly insured under a valid policy of insurance on 31.12.2003 with the respondent, when it met with accident. As per appellant it was being driven by one Sh. Manohar Singh. Whereas according to the respondent-insurance company while, furnishing Motor Claims Intimation, appellant has shown himself to be the driver of the vehicle. In this behalf we consider it necessary to refer to two orders passed by us.

    First order was passed on 15.9.2009 after the appeal was heard at Chamba, this order is as under:-

    “This appeal has been partly heard today. We are of the view that in order to do complete justice between the parties as well as for coming to a correct conclusion, the Claim Form which is as per procedure of the respondent-Insurance Company is required to be filled in before processing the claim, needs to be summoned from the Insurance Company. Necessity of calling upon the respondent to produce it has arisen in the face of the stand of the appellant that it was Shri Manohar Singh who was on the wheel at the time of accident, whereas according to the respondent, it was appellant Balkar Singh was himself driving the vehicle. His licence referred for verification has been found to be fake by the concerned Licensing Authority at Hissar. So far we understand, in the claim Form there is specific column giving particulars of the driver who was driving the vehicle at the time of its accident.

    In these circumstances, we direct the respondent-Insurance Company to produce the original claim form and depute some responsible Officer well conversant with the file to appear at Dharamshala on 18.9.2009. We may mention here that in case Shri Manohar Singh is shown to be the driver in the claim form, situation will be totally different. But if Balkar Singh is shown to be the driver at the time of its accident, then result will be obvious.

    Put up at Dharamshala on 18.9.2009.”



    When the case came up for consideration at Dharamshala, following order was passed and the documents was ordered to be taken on record:-

    “Pursuant to the orders passed by us on 15.9.2009 at Chamba, Mr. Bhatnagar has produced a Motor Claims Intimation Form dated 12.1.2004 as well as copy of letter dated 17.3.2004 sent by the appellant to the respondent requiring him to produce documents detailed in this letter. These are taken on record. Looking to these documents, it has become necessary to further hear the case after affording opportunity to the appellant to controvert these documents if he so chooses. Since both the parties are also duly represented in the case at Shimla also, accordingly this case is ordered to be listed at Shimla on 7.11.2009. Notice for this date be issued to S/Sh. Tarlok Chauhan & Kulwant Singh Katoch, Advocates of Shimla, with copy of this order.”



    Original Motor Claims Intimation form had been relied upon by respondent-insurance company in its defence before the District Forum below and was referred to even today. It was further stated on behalf of the respondent, that this document supports the claim of the respondent and in the face of this document stand of the appellant, that Sh. Manohar Singh was the driver at the time of accident is belied.

    2. So far genuineness of the driving licence of Balkar Singh appellant is concerned, stand of the respondent-insurance company is, that it had deputed Mr. Amit Jain, Advocate, Hissar (Haryana) to verify the same and submit his report. As per his report dated 13.2.2004, DL No. 3781 was not issued in the name of Balkar Singh as it was issued in the name of one Shugan Singh son of Shaya Singh. On the basis of this report, stand of the respondent is that the licence issued in favour of Balkar Singh was non-est/fake. It was under these circumstances that he lodged a false report.

    3. District Forum below accepted this position and has dismissed the complaint. Before proceeding further in the matter, we may also notice that after receipt of intimation regarding accident in question, insurance company had deputed a surveyor to assess the loss to the vehicle. According to his report Annexure OP4, amount assessed on account of the parts, as well as of labour worked out to Rs. 1,17,390/-. This was against the claim of Rs. 1,61,072/- made by the appellant.

    4. Report of the surveyor is at pages 45 to 49 of the complaint file. Surveyor while disallowing most of the items and or reducing the amount, has not assigned any reasons. He is an expert in the branch of assessment of loss. Thus in our opinion he is bound to give reasons, howsoever brief those may be while justifying/disallowing/reducing any amount.

    5. As already observed no reasons any whatsoever have been assigned in this behalf. Therefore his report cannot be accepted on this face value. In this behalf it was submitted by Mr. Tarlok Chauhan that assuming everything to be correct as claimed by the insurance company that it was Balkar Singh, and not Manohar Singh who was driving the vehicle at the time of its accident to be correct for the sake of argument, even then the impugned order is liable to be set aside. Reason being that licence of his client had been to be held fake by the District Forum below.

    6. Admittedly as per stand of the respondent, it had got the genuineness of the licence verified and for that purpose lawyer at Hissar was deputed. As per his report he informed that the licence in question had not been issued in favour of the appellant. There is neither affidavit of the said lawyer, nor any report placed on or filed in the complaint file to support the stand taken up in reply to complaint by the respondent. Why this was not done, learned counsel for the respondent had no answer/explanation. He however laid great emphasis on the affidavit of Mr. P.S. Kalair, Divisional Manager of the respondent at its Pathankot office. This affidavit cannot be accepted on its face value.

    7. Because admittedly he had not himself verified the licence in question. To the contrary according to him for this purpose Mr. Amit Jain was entrusted the job of verification of the licence, he gave his report on 13.2.2004 reporting that the licence in question had not been issued in favour of Balkar Singh, but was issued in favour of Shugan Singh son of Shaya Singh. As already observed neither his affidavit, nor report of said Advocate Mr. Amit Jain, has been placed on record.

    8. Suffice it to say in this behalf that adverse inference needs to be drawn against the respondent in the context of report of Mr. Amit Jain as it has been withheld, by holding that in case it had been produced it would not have been supported the case of the respondent. Once this conclusion is arrived at, then the findings recorded by the District Forum below regarding licence of Balkar Singh appellant being non-est/fake are based on no evidence, and therefore need to be set aside. Ordered accordingly. Once this conclusion is arrived at, then this appeal deserves to be allowed. Ordered accordingly.

    9. No other point was urged.

    In view of the aforesaid discussion order passed by District Forum, Chamba in Consumer Complaint No. 2/2006, on 27.9.2008 is set aside and as a result of it, this complaint is allowed consequently respondent is held liable to indemnify the appellant in the sum of Rs. 1,61,071/- alongwith interest @ 9% per annum from the date of the filing of the complaint, i.e. 13.1.2006 till the date of payment/deposit whichever is earlier besides cost assessed at Rs. 10,000- of this appeal as well as of the complaint. Appeal is allowed in these terms.

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

  4. #154
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    Default United India Insurance

    Appeal No. 251/2009.

    Date of Decision 16.12.2009

    In the matter of:

    The United India Insurance Company Ltd., Branch Office,

    Solan, Tehsil & District Solan, HP through Divisional Manager,

    Divisional Office, United India Insurance Company Ltd., Timber

    House, Circular Road, Shimla, HP.

    … … Appellant.

    Versus

    Shri Viney Thakur son of Shri Sunder Singh

    R/o Village Kundla Shamti, Tehsil & District Solan, HP.



    … … Respondent.

    Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

    Hon’ble Mrs. Saroj Sharma, Member.

    Hon’ble Mr. Chander Shekher Sharma, Member.

    Whether approved for reporting? No.

    For the Appellant.: Mr. J.S. Bagga, Advocate.

    For the Respondent: Ms. Pooja Dhiman, Advocate vice

    Counsel, Mr. Amit Vaid, Advocate.

    O R D E R:

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

    This appeal is directed against the order passed by District Forum Solan, dated 27.6.2009 in Consumer Complaint No. 66/2008. By means of impugned order, appellant has been directed to pay Rs. 34,228/- alongwith interest @ 9% per annum with effect from the date of filing of the complaint, (i.e. 25.4.2008) till actual payment made and cost of Rs. 1,000/-. Appellant has been directed to pay the amount within 45 days after the date of receipt of copy of the order, hence this appeal.

    2. Respondent having obtained a Package Policy Motor Cycle/Scooter policy from the appellant in the sum of Rs. 1 lac is not in dispute. He met with accident on 20.6.2005 near Subzi Mandi at Solan. As a result of it he was critically injured and was admitted in Zonal Hospital at Solan. He was operated upon and rods were put in his legs. He incurred expense of Rs. 34,228/- on his treatment. He lodged claim in this behalf with the appellant, but was not indemnified.

    3. This resulted in filing of the Consumer Complaint No. 66/2008. When put to notice while admitting insurance in question, stand of the appellant was that as per terms and conditions of the policy, appellant would only be liable under the personal cover granted to the respondent in this case, to the extent of Rs 1 lac in case of death, permanent total disablement or permanent total and irrecoverable loss of leg/legs, hand/hands and eyes of the insured driver owner caused due to and resulting from the accident in question. Claim of the respondent for being indemnified for medical expenses incurred by him was also disputed. In this background, it was prayed that complaint was without merit and its dismissal was prayed by the appellant.

    4. Mr. Bagga in support of this appeal forcefully urged that the present is neither the case of either permanent total disablement or permanent total irrecoverable loss of leg/legs, hand/hands and eyes of the respondent who was admittedly the insured driver/owner, caused due to and resulting from the accident in question. He laid great emphasis on the affidavit of Mr. Pradeep filed in evidence in support of this plea on behalf of the appellant.

    5. Annexure R-2 is the Photostat copy of the certificate issued by the Board of Doctors from the Zonal Hospital, Solan. This clearly shows that this is a case of 20% permanent disability on the left leg of the respondent because of locomotors (illegible). At this stage, Mr. Bagga by referring to the insurance policy submitted that looking to its terms and conditions, as well as IMT No. 36 of the said policy, his client was not liable to indemnify the respondent for the medical expenses incurred by him, therefore District Forum below was in error while allowing the complaint.

    6. We fail to appreciate that when it is admitted by the appellant that it is liable to indemnify an insured like respondent in this appeal in case of his death, his suffering permanent total disablement or permanent total and irrecoverable loss of leg/legs, hand/hands and eye/eyes of the insured driver owner caused due to and resulting from accident, then in face of disability certificate on record it is clearly established that the respondent had suffered permanent disability of his left leg to the extent of 20%, then on what manner it is being argued that this is not a case of permanent total and irrecoverable loss of his left leg. As such this plea urged on behalf of the appellant has no substance and is rejected.

    7. Now coming to the submission of Mr. Bagga that his client has not covered the risk of reimbursing the respondent for the medical expense incurred by him while undergoing the treatment. Suffice it to say in this behalf, that insurance had been undertaken in this case under the provisions of Insurance Act, 1938. In the year 1999 with a view to achieve the object as contained in the Insurance Act, Government of India has enacted Insurance Regulatory and Development Authority, Act. Under this Act Insurance Regulatory Development Authority has been constituted. It has framed Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interests), Regulation 2002.

    8. Under these Regulations a duty is enjoined upon the Agent/Development Officer/intermediary who undertakes insurance to explain all the pros and cons including exclusions as well as exceptions etc. to an insured, like respondent in the appeal before us. The purpose of Regulation 3 of these Regulations 2002 appears to be laudable, because after having been put to notice on all aspects, the insured knows everything about the insurance cover obtained by him. There is no material on record and none could be pointed out on behalf of the appellant-insurance company that these Regulations of 2002 were complied with by the Agent/Development Officer/intermediary who had undertaken the insurance vide Annexure R-1 in this case. Once this conclusion is arrived at, then this decision need not detain us.

    9. No other point is urged.

    In view of the aforesaid discussion we find no merit in this appeal which is accordingly dismissed, leaving the parties to bear their own costs while upholding the order of the District Forum Solan, in Consumer Complaint No. 66/2008, dated 27.6.2008.

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

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

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    Default United India Assurance

    Quorum:

    Hon’ble Mr. Justice (Retd.) G.D. Sharma …President

    and Mr. B.L. Saraf …Member
    File No. 2934 of 2007

    Date of institution: 05-11-2007

    Date of decision: 09-12-2009

    S.Avtar Singh

    S/o S. Hira Singh

    R/o 148A/D @@@@hi Nagar

    Jammu.
    …Complainant

    Versus
    M/s United India Assurance Co. Ltd.,

    Through Divisional Manager

    C/o Divisional Office, 1

    Alsons Motors Building, GL Dogra Marg

    @@@@hi Nagar Jammu.

    …OP

    Counsel for the parties:

    Mr. Amit Gupta , advocate for complainant.

    Mr. Rabinder Sharma , advocate for OP

    ____
    (i) Whether to be reported in Press/Media. …No

    (ii) Whether to be reported in Digest/Journal. …No Per Justice G.D. Sharma

    1. Sardar Avtar Singh is the owner of passenger bus bearing registration No. JK02P-5325. The complainant had insured the said bus with OP under Insurance Policy 110600/31/05/01364 which became operative on 30-06-2005 and had to expire on 29-06-2006. Insured Risk Cover was of Rs 6,00000/-. The complainant had engaged Mr Ved Prakash S/o Mast Ram as driver of the bus . It is alleged in the complaint that at the time of hiring the services of the said driver his driving licence was verified by the complainant even by testing his driving skills. Unfortunately on 18-06-2006, the said bus met with an accident while going from Jammu to Srinagar. The driver of the bus died in the said accident. FIR was registered in the concerned police station. Claim was raised with the OP and Surveyor was appointed who went on spot and assessed the net loss to the tune of Rs 5,15,940/-. It is pleaded that in the presence of the complainant, only 35 passengers were loaded in the said bus and copy of the challan is attached with the complaint. The permitted seating capacity of the passengers was 35 as per Annexure-H attached with the complaint. The case of the complaint is that without any justification his insurance claim was repudiated on the twin grounds viz (i) that the driver was not possessing a valid and effective driving licence at the time of the accident and (ii) 46 passengers were seated in the bus at the time of the accident, whileas, the permitted seating capacity was of 35 passengers only . The complainant has claimed Rs 6,00000/- towards the indemnification of insured value of the bus along with- litigation charges in sum of Rs 20000. Besides that, Rs 2,00000/- have been claimed as compensation for mental torture and harassment.



    2. The complaint has been resisted by the OP on the preliminary grounds that no cause of action had arisen in favour of complainant and the controversy involves complicated question of facts and law which required adjudication in a civil court. On facts, it is pleaded that after the receipt of the information of accident due verification was made whereby it was revealed that driver Sh Ved Prakash had obtained fake Driving License from RTO Shimla. That fake license was being shown as genuine one and got renewed from transport authority. At the time of accident 46 passengers were loaded in the bus which was flagrant violation of the terms and conditions of the contract of insurance because permitted seating capacity of passengers was upto a limit of 35 passengers only.



    3. The complainant has given his evidence on affidavit. He was not cross-examined by the OP. In his deposition, he has corroborated the allegations made in the complaint. He has attached with the complaint, the photostat copy of the driving licence and photostat copy of the certificate issued by RTO Jammu(annexure c) certifying the fact that driver had driving licence issued initially from the licensing authority Shimla, having authorization to drive Heavy Transport Vehicle. That the license had been renewed by RTO Jammu on 22-10-2003 and was valid upto 21-10-2006. The surveyor’s report was also attached with the complaint. The OP has produced the evidence of SC Sharma Divisional Manager as a witness who on affidavit has deposed that the driving licence of driver Ved Prakash had been issued by RTO Shimla which on verification was found fake. That once a driving licence is fake it cannot attain the genuineness even if it is renewed by the subsequent transport authority. That the bus was being plied in contravention of the terms and conditions of route permit as 46 passengers had been loaded therein at the time of accident.



    Heard the Arguments



    4. Mr. Amit Gupta Advocate has argued that there is not even an iota of evidence in support of the contentions raised by the OP in respect of fakeness of the driving licence as well as in respect of overloading of 46 passengers. The surveyor Mr U.S. Gupta possess engineering qualification and he had gone on spot for the purpose of verification of the incident. At the beginning of his report under heading Cause/Nature of accident, he has mentioned, “Morning drowsiness could be a possible cause.” While concluding his arguments; he has submitted that the cause of accident was neither overloading of bus nor lack of driving skills of the driver but according to the findings of independent witness namely Mr. US Gupta surveyor and loss assessor morning drowsiness of driver was the probable cause of accident. In support of his contention he has cited the case of Oriental Insurance Co. Ltd. Versus Bansi Lal 2007(II)S.L.J(923) which is a decided case by this Commission wherein it is held that in the absence of proof of fact that overloading was the cause of accident, liability cannot be denied by the insurance.



    5. During the course of the arguments Mr. Ravinder Sharma Advocate for the Op produced the claim file from the records of the OP and from it produced a photo-stat copy of the application dated 8.5.2008 made by one Mr. PS Chandel advocate to the registering and licencing authority Shimla which bears remarks dated 14.5.08 to the following effect and are reproduced:- “RTO with the remarks that there is no D/L no. 682/sml/1982 in the year 1982-83 maintained in this office. This D/L issued in the year 1982 was upto 315/82 dated 3.1.1983 only. D/L issued on 6.9.1982 was in favour of Sh. John Franklin Ranjali S/o Sh Frunyan Bhagwati Niwas, Sanjauli Shimla-6 for LMV(Pvt) –LMV from 6.9.82 to 5.9.85 No. D/L is issued in favour of Sh. Ved Prakash S/o Sh. Mast Ram on 6.9.1982 and there is no such D/L no 682/sml/1982 in the register maintained for issuance of D/L. Report is correct as per office Record.” These remarks are under the seal and signatures of some-body which are not legible. The advocate has also produced a photostat copy of the application dated 15.5.2008 made to The Divisional Manager United India Insurance Co. Ltd. Shimla by the same advocate Mr. PS Chandel. In this letter Mr. PS Chandel Advocate in para no 2 has admitted that licence of RLA, Shimla has been computerized and he was told to search the D/L in computer for the purpose. He has admitted the fact, “ No entries exist in such names.” He has also stated that in the computer record the number of D/L was not found. He has drawn himself presumption that since as per certificate of RLA Shimla D/L has not been issued by that office or the D/L was not valid, effective and genuine and hence D/L is fake.

    6. We fail to understand why the OP has not produced this record which is now being produced on the application made by one Mr. PS Chandel at proper time that is with filing of written version in order to support the plea that he licence was fake. The member of the licence was not found in the record of computer. it cannot be said that it was a fake licence. Under the insurance Act only a licenced investigator/ surveyor has the authority to look into the claims of the parties but nothing is shown on records that Mr. PS Chandel had licence issued in his name by the competent authority under the Insurance Act to act as an investigator. The report of RLA which is being referred by Mr PS Chandel Advocate in his letter dated 15.5.08 addressed to Divisional Manager United India Insurance Shimla is also of doubtful nature as the seal and designation of author is not legible. The Hon’ble J&K High Court in the case of National Insurance Co. V/s Hardeep Singh 2007(I)SLJ has held that “ If the authority renewing the driving licence is not the authority which issued the driving licence it has to intimate the fact of renewing to the authority which issued the driving licence- if the driving licence is fake one and has not been issued by the issuing authority, which the applicant alleged to have got issued, then the issuing authority will inform the renewing authority that no such licence has been issued by the said authority and if the issuing authority is not intimated about this fact then the renewing authority will presume that the driving licence has been issued.”

    7. Mr. Rabinder Sharma Advocate of the OP has cited the following authorities in support of his contention that in case the driving licence of the driver is fake at the time of the accident, the Insurance Company is not liable to reimburse the loss. The authorities are: - 1) 2008(I) CCC 280 (SC) 2) AIR 2008 SC 2266. . 3) 2007(I) CCC 26. 4) 2000(I) CCC 50. 5) AIR 2003 SC 4548. The law laid down in the above stated authorities has no application to the facts and circumstances of the case. The OP has not settled genuine claim of the complaint for indemnifying him to the extent of actual loss suffered by himwhich amounts to rendering deficiency in service. Hence, we allow the complaint and direct the OP to make the payment of the loss assessed by the surveyor Mr. US Gupta in the sum of Rs 5,15,940/-.with interest @ 8% p.a from the date of the receipt of the surveyor’s report. The OP shall pay the litigation expenses assessed at Rs 6000/-. The complaint is consigned to the records.

  6. #156
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    Default United India Insurance

    F.AIA .No.2457/2009 and FASR No. 5539/2009 against
    CC. 574/2008 on the file of the District Forum I, Hyderabad
    Between:

    The United India Insurance Company Limited

    Rep. by its Branch Manager, 1100, LIC Building,

    Bank Street, Koti, Hyderabad -500 095.

    Presently authorized by Senior Divisional Manager

    UII Co. Ltd., DO No.XI, Tirumala Towers,

    # 16-2-677/ 1 &2, No.301, third floor

    Judges Colony, Malakpet, Hyderabad – 500036 .. appellant/OP. No.1

    And
    1. T. Neelakanta Rao, S/o Sri T. Thavitaiah

    Aged 55 years, occ: Consulant HR & Legal

    R/o 1-4-879/58, Bakaram, @@@@hi Nagar,

    Hyderabad – 500 080 .. Respondent no.1/complainant



    2. M/s. Medseva Health Care ltd

    Rep. by its Manager, Claims Department

    # 203, 2nd floor, Diamond Towers,

    Main guard road, Secunderabad – 500003.

    .. Respondent No.2/OPP.no.2.

    Counsel for the Appellant : M/s. Kaliki Sudhakar Reddy.

    Counsel for the Respondent : admission stage.

    CORAM :

    HON’BLE SRI JUSTICE D. APPARA RAO … HON’BLE PRESIDENT

    AND


    SRI R. LAKSHMINARASIMHA RAO .. HON’BLE MEMBER

    Thursday, the Seventeenth Day of December , Two Thousand Nine.


    Oral order : ( as per Sri R. Lakshminarasimha Rao, Hon’ble Member )

    Having heard the learned counsel for the appellant and perused the records we deem it fit to dispose of the petition and the appeal at the stage of admission.

    The United India insurance Company Limited, Hyderabad, the opposite party no. 1 in CC 574/2008 before the District Forum I, Hyderabad has filed the appeal along with an application for condonation of delay of 46 days in filing the appeal.



    The delay of 46 days in filing the appeal has been sought to be condoned on the ground that the copy of the impugned order was sent to the Branch Office of the appellant company as also the appellant Insurance Company had obtained the opinion of its counsel. Service of copy of order on the Branch office of the appellant company, even if, it is presumed that the order was sent to it, has the effect of the service of the copy of the order on the appellant insurance company. The time said to have been consumed in obtaining the opinion from the counsel of the appellant insurance company cannot be said that it is a circumstance sufficient to condone the delay in filing the appeal. The service of the notice on Branch office of the appellant/insurance company as also the appellant/insurance company consulting its lawyer can be said to be valid and sufficient ground to condone the delay in filing the appeal. The appellant/insurance; company has not shown any sufficient cause for condonation of delay of 46 days in filing the appeal. The petition is liable to be dismissed.



    Even if we can consider the objection of the appellant/Insurance Company to the impugned order that its liability is limited to an extent of Rs.1,65,000/-, the appeal is bound to fail.



    The respondent no. 1/complainant had obtained a Group Floater Medi claim Insurance policy for a sum of Rs. 40,000/- under Insurance Policy bearing No. 2003/052201/48/03/21/00001668 covering the period from 21.7.2004 to 26.1.2005 for the risk per individual to an extent of Rs.40,000/-. The Insurance policy was renewed from 27.1.2005 till 26.1.2006 with the coverage of risk increased from Rs.40,000/- to Rs.2 lakhs per individual. Apart from that policy, the complainant had also taken another policy bearing No. 52030705028530 C on the name of his wife for a sum assured of Rs.1,25 lakhs.



    The complainant’s wife Smt. D. Hymavathi was admitted to M/s. Global Hospitals, Hyderabad to undergo Valve Placement Surgery. She was treated in the hospital from 7.11.2005 till 8.11.2005. The complainant said to have incurred an expenditure of Rs.2,83,525/-.



    The complainant submitted his claim along with relevant documents for reimbursement of the sum of Rs.2,83,525/-. The appellant insurance company had paid an amount of Rs.40,000/- on 3.8.2006 , i.e., after a period of eight months from the date of submission of the claim. The balance amount has not been paid compelling the complainant to file the complaint before the District Forum. The appellant/Insurance company in its counter before the District Forum as also before this Commission has stated that an amount of Rs.1,25,000/- is to be paid to the complainant.
    The complainant has claimed reimbursement of an amount of Rs.2,43,525/-. Therefore the dispute lies in a narrow compass of difference in the amount claimed by the complainant and that of the Insurance Company undertaken to pay to the complainant.



    The complainant’s wife was treated in Global Hospitals, Hyderabad from 7.11.2005 till 8.11.2005. The Insurance Policy bearing No. 2003/052201/48/03/21/00001668 was renewed for the period from 27.1.2005 to 26.1.2006, where under, the coverage of risk was increased from Rs.40,000/- to Rs. 2 lakhs. The Appellant/Insurance Company relying upon a certificate dated 2.6.2006 said to have been issued by Dr. A.G.k. Gokhale stating that Smt. Hymavathi, the husband of the complainant was suffering from shortage of breath and Arthopnoea for about two years and at that time she was diagnosed with moderate MS, AS and AR. On the premise of the certificate which was not marked in the complaint before the District Forum, the appellant contended that as the disease was a pre-existing disease, the enhanced coverage of risk cannot be made applicable. In other words, it is the contention of the appellant/Insurance company that as the complainant’s wife was suffering from a pre existing disease, the risk coverage as provided by the Insurance Policy issued for the period from 27.1.2004 to 26.1.2005. i.e., an amount of Rs.40,000/- is only applicable and not the enhanced risk coverage to an extent of Rs. 2 lakhs. The complainant’s wife was treated in the Global Hospitals, Hyderabad, only during the period from 7.11.2005 till 8.11.2005 during which period the renewed Insurance Policy but not the previous policy was in force where under the risk coverage was to the extent of Rs. 2 lakhs and not Rs.40,000/- as was provided under the earlier policy. Therefore, the complainant is entitled to the benefits conferred by the renewed Insurance Policy. In the circumstances, the contention of the appellant that the complainant is entitled to reimbursement of Rs.40,000/- does not stand to any reason. Therefore, we hold that the appeal is devoid of any merits.



    In the result, the petition is dismissed. Consequently, the appeal is rejected. No order as to costs.

  7. #157
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    Default United India Insurance

    FA 410/2007 against CD 315/2005 on the file of the

    District Forum, Guntur
    Between:
    1. M/s. United India Insurance Company Ltd

    Rep. by its Divisional Manager

    D.O.- VIII, Dakshinapan Shopping complex

    Kolkata, rep. by its Regional Manager

    Regional office, Basheerbagh, Hyderabad

    2. United India Insurance Company Ltd

    Rep. by its Divisional Manager,

    D.O., Durga Complex,

    Pandaripuram, Chilkaluripet, Guntur District,

    Rep. by its Regional Manager

    Regional Officer, Basheerbagh,

    Hyderabad … Appellants/Opposite parties

    And

    1. Mohammad Ameer, S/o Gayasuddin,

    R/o 5th Line, Maddi Nagar,

    Chilkaluripet, Guntur District.

    2. Smt. Mohammad Shakeeroon

    W/o Mohammad Ameer,

    R/o 5th Line, Maddi Nagar,

    Chilkaluripet, Guntur District.
    3. Ravi Oil Stores

    Rep. by its prop. Smt. Thava indiravathi,

    Kasturibai Road, Chilkaluripet,

    Guntur District.

    4. S. S. Enterprises, rep. by its Prop. Shaik Johny Basha,

    K.B. Road, Chilkaluripet,

    Guntur District. … Respondents.

    Counsel for the Appellants : M/s. . T. K. Sreedhar

    Counsel for the Respondents : Mr. T. V. P. Prabhakar
    CORAM :
    SMT. M. SHREESHA … HON’BLE MEMBER

    AND

    SRI K. SATYANAND .. HON’BLE MEMBER

    Wednesday, the Sixteenth Day of December, Two Thousand Nine.
    Oral order : ( as per M. Shreesha, Hon’ble Member )

    Aggrieved by the order in C. D. 315/2005 on the file of the District Forum ,Guntur , the opposite parties preferred this appeal



    The brief facts as set out in the complaint are that the complainants 1 and 2 are the parents of late Md. Esubu Johny who was an electrician and mechanic for Generators and Tractors. The complainant’s son purchased Servo Oil from Ravi Oil Stores and S. S. Enterprises at Chilakaluripet from 19.7.2003 to 6.8.2003 under five policies, out of which, 4 polices worth Rs.50,000/- each and one policy worth Rs.one lakh. In all, he was covered for Rs. 3 lakhs and the same was insured and the complainant submits that the dealer issued valid bills and the policies to that extent. On 10.08.2003, the insured died in a road accident instantaneously on the spot and the case was also registered in Cr. No. 258/2003 and an inquest and post mortem were also conducted. The opposite parties collected original copies of the policies through their investigator on 24.02.2005 but repudiated the claim saying that the certificates issued did not establish the sale of schemed products of Servo oil and no valid reasons are mentioned therein. The complainants submit that the record clearly discloses that the deceased died during the validity of the policies and the bills issued by the Oil dealers are genuine and submit that the repudiation amounts to deficiency in service and seek direction to the opposite parties to pay Rs. 3 lakhs covered under 5 policies along with interest , Rs.50,000/- towards compensation and costs.



    The opposite parties filed counter stating that they introduced a scheme” Servo-Uttam Suraksha” Group Personal Accident Insurance policy which covers the customers of ‘ Servo” range of lubricants oil on purchase of a specified quantity. The certificates will bear the signature of the competent authority and it also bears the signature of the insured person and the authorized seller will discharge the certificate under his signature with office seal and the dealers code. The opposite parties introduced the scheme from 09.05.2003 to 08.05.2004. The opposite parties contend that the insurance coverage on buying the specified quantity of the schemed product under single cash memo only, whereas, the dealer issued two cash memos dated 22.7.2003 ad 23.7.2003 vide no. 377 and 383 and violated the terms and conditions of the policy. Two oil stores, i.e., Ravi Oil Stores and S.S. enterprises of Chilakaluripet and the claimant colluded with each other to gain amount wrongfully from them by issuing back dated cash memo and insurance certificate to the claimant. The Oil Stores, i.e., Ravi Oil Stores issued two bills on dated 22.7.2003 and 23.07.2003 showing that the deceased purchased 5 litres of oil on those two days and since both the bills on two different dates is not entitled to the amounts. The opposite parties further contend that Ravi Oil Stores dealer issued cash memo dated 1.8.2003 in bill no. 23, which is originally a three digit number bill i.e, 230 and the last digit is struck with pen which shows the attitude of the complainant with the stores dealer and contend that there is deficiency in service on behalf of them.



    The District Forum, based on the evidence adduced on record i.e., Ex. A1 to A-12 and Ex. B1 to B-9 and the pleadings put forward by the parties, allowed the complaint directing the opposite parties 1 and 2 to pay Rs.1,50,000/- with interest @ 9% p.a. from 24.2.2005 till the date of realization together with costs of Rs.2000/-.



    Aggrieved by the said order, the opposite parties preferred this appeal..

    The facts not in dispute are that the opposite parties introduced a scheme” Servo-Uttam Suraksha” Group Personal Accident Insurance policy which is issued to the customers of ‘ Servo” range of lubricants oil. According to the scheme, the authorized seller will discharge the certificate under his signature with office seal and the dealers code and each cash memo number against the date on which the certificate was issued has been mentioned clearly in the certificate of Insurance Company. This policy was introduced for the period from 09.05.2003 to 08.05.2004. It is the case of the complainants that their son has purchased Servo” range of lubricants oil regularly since he was an electrician and mechanic by profession. It is their case that the deceased purchased Servo Oil from Ravi Oil Stores and S. S. Enterprises at Chilakaluripet from 19.7.2003 to 6.8.2003 under five policies, out of which, 4 polices worth Rs.50,000/- each and one policy worth Rs.one lakh. In all, he was covered for Rs. 3 lakhs and the same were insured and the dealer issued valid bills and the policies to that extent. It is also not in dispute that on 10.8.2003 the insured died in road accident instantaneously on the spot and the case was also registered in Cr. No. 258/2003. A claim was preferred by the complainants herein with the opposite parties who collected the original copies of the policies through their investigator who repudiated the claim on 24.02.2005 on the ground that the certificate issued did not establish the sale of schemed products of Servo Oil.



    It is the case of the appellants/opposite parties that under clause 9 of Servo Suraksha Tailor Made Group personnel Accident policy the customers are entitled to Insurance Coverage on buying specified quanity of the schemed product under single case memo only whereas the dealer has issued two cash memos dated 22.7.2003 and 23.7.2003 vide nos. 377 and 383 and issued certificate of insurance No. 563938 and violated the terms and conditions of the policy.



    The learned counsel for the appellant/opposite parties submitted that the claimants have colluded with the dealer and created non-existing bills and that the investigation report dated Ex.B8 was not considered which is throwing light on the fraud committed by the claimants and that the District Forum erred in disbelieving Ex. A-1, A4 and A5.



    We observe from the record that Ex. A-1 is the policy for Rs.50,000/- and the certificate has issued in bill no. 369 for 10 litres of Servo Oil and also signed by the authorized signature of the opposite parties 1 and 2 and the policy for Rs.50,000/- we do not see any inconformity in the order of the District Forum with respect to this amount. We now address ourselves to address Ex. A2 policy No.563938. This Ex.A2 shows two bills for 5 litres each on 22.7.2003 and 23.7.2003. In order to sow minimum of 10 litres, 5 litres were purchased on two different dates and this violates condition no.1 of Ex. A2 which reads as follows :



    “ Insurance cover against the purchase of minimum 10 litres of Servo products/ packs covered in the scheme in one Cash memo/Bill”.



    Since Ex. A-2 violated this condition Rs.50,000/- cannot be entertained and the District Forum has justified in not allowing the claim. Ex. A3 is a certificate No.476322 issued for 20 litres of oil and policy for Rs.one lakh. On this, the District Forum observed that there was correction in the seial no.239. On careful perusal of Ex. A3, we observe that 239 serial no. corrected as 23 and raised doubt whether this bill has been fabricated. Since the complainant has not been able to establish that this bill is a genuine one this claim also cannot be entertained.



    Ex. A4 is the certificate No.563152 dated 4.8.2003 for purchase of 10 litres on 4.8.2003 and the claim is for Rs.50,000/-. On perusal of Ex. A4 we are of the considered view that this is a genuine transaction and the District Forum has rightly allowed it for an amount of Rs.50,000/-.



    Ex. A5 is the certificate no. 563154 dated 6.8.2003, under which, the insured purchased 10 litres of oil which is also a genuine transaction and the District Forum has rightly allowed Rs.50,000/- under Ex. A5 . Taking into consideration that A1 for Rs.50,000/- , Ex. A4 for Rs.50,000/- and Ex. A5 for Rs.50,000/- alone have been allowed by the District Forum and on careful perusal of these certificates, we are of the considered opinion that these three bills are genuine.



    It is pertinent to note that the complainants did not prefer any appeal. The learned counsel for the appellant submitted that under Ex. A2 certificate two bills have been issued for 5 litres each on 22.7.2003 and 23.7.2003 and this is in violation of condition no. 1 of the policy. Since this amount has not been allowed by the District Forum this contention is untenable. Therefore, we see no reason to interfere with the well considered order of the District Forum and this appeal fails and is accordingly dismissed.



    In the result, this appeal fails confirming the order of the District Forum. But, in the circumstances of the case, no costs. Time for compliance four weeks.

  8. #158
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    Default United India Insurance

    F.A.No.1660 OF 2007 AGAINST C.C.NO.356 OF 2006 DISTRICT CONSUMER FORUM-I HYDERABAd
    Between

    United India Insurance Co.Ltd.,
    Rep. by its Branch Manager,
    Branch Office 6-2-976, Pavani Estates
    4th Floor, Khairatabad, Hyderabad

    Appellant/ opposite party

    A N D



    G.Srinivas Reddy S/o late Narasimha Reddy
    42 years, Business, 3-4-149, Street No.6,
    Lingampally X Roads, Hyderabad


    Respondent/complainant



    Counsel for the Appellant Sri V.Sambasiva Rao
    Counsel for the respondent Sri K.Rudrappa



    QUORUM:

    THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

    &

    SRI R.LAKSHMINARSIMHA RAO, MEMBER



    MONDAY THE FOURTEENTH DAY OF DECEMBER

    TWO THOUSAND NINE



    Oral Order ( As per R.Lakshminarsimha Rao, Member)
    ***



    The appeal is filed by the opposite party challenging the order of the District Forum-I Hyderabad in C.C.No.356 of 2006.

    The facts in brief are that the respondent is the owner of Opel Astra bearing No.AP-9Q 6231 which was purchased by him from K.Durga Rao in the year 2004. The appellant issued insurance policy bearing No.050503/31/04/10275 in favour of the previous owner of the vehicle. On 21.2.2005 when the vehicle was proceeding to Vijayawada from Hyderabad, it met with an accident at Kanchikacherla when a lorry bearing No.AP 5U 2239 proceeding in the same direction hit it from behind on account of which the vehicle sustained damage on the left side to its doors. The respondent lodged claim on 24.2.2005 with the appellant for an estimate of Rs.90,000/- towards the repairs of the car. The surveyor appointed by the appellant in this regard, inspected the vehicle and submitted his report to the appellant. The respondent got repaired the vehicle at the workshop at Vijayawada and he incurred an expenditure of Rs.90,000/- towards spare parts and repair charges. On 18.8.2005 the appellant repudiated the claim on the ground that the insurance policy of the vehicle was in favour of K.Durga Rao at the time of the accident even though ownership of the vehicle was transferred in the name of the respondent prior to 21.2.2005. The respondents was under the impression that the policy standing in the name of the previous owner would automatically be transferred in his name as also that once the premium was paid to the appellant, the insurance coverage for the vehicle would be available for a period of one year from the date of payment of the premium irrespective of the transfer of the ownership of the vehicle. The respondent got issued a legal notice dated 16.2.2005 for which the appellant had given reply dated 25.2.2006.

    The appellant resisted the claim. It was contended that the there was no charge sheet filed by the police concerned to show that an accident occurred between the car and lorry bearing No.AP 5U 2239. No case was registered u/s 279 of IPC. As per the letter dated 21.2.2005 issued by S.I. police Kanchinkacherla, the respondent was traveling in the car where as the respondent’s version before the District Forum was his brother’s son along with his friend was proceeding in the car to Vijayawada. The respondent has not informed about the transfer of the vehicle in his favour from its previous owner. The previous owner of the vehicle who obtained the insurance policy also had not informed the appellant about transfer of the vehicle in favour of the respondent. The policy stands in favour of the insured K.Durga Rao. No transfer certificate was obtained from the appellant by the respondent. As per the motor tariff regulations, the transferee of the vehicle has to inform the insurance company within 14 days of such transfer for effecting the change of ownership of the vehicle in the insurance records and for the purpose of issuing fresh certificate in favour of the new owner of the vehicle. The respondent had no insurable interest in the vehicle as on the date of the accident.

    Basing on the documents Exs.A1 to A7, the District Forum allowed the complaint by awarding a sum of Rs.90,000/- with interest and costs.

    Aggrieved by the order of the District Forum, the appellant company preferred the appeal on the ground that there was transfer of the policy in favour of the respondent.

    The point for consideration is whether there is any ground which does warrant interference with the findings of the District Forum?

    There is no dispute in regard to the facts of ownership of K.Durga Rao over the Opel Astra bearing NO.AP-9Q 6231 and the issuance of insurance policy in his favour by the appellant company and also the fact that the vehicle was sold by the original owner to the respondent whereby the transfer of ownership was effected in the registration certificate pertaining to the vehicle. It is also not in dispute that either the original owner or the respondent had not informed about the transfer of ownership of the vehicle in favour of the respondent, to the appellant company. The appellant has repudiated the claim under Ex.B1 on the ground that the insurance policy was not transferred in the name of the respondent so also the insurance coverage could not be transferred in the absence of which the appellant company is not liable to make any payment for the loss said to have been sustained by the respondent on account of damage stated to have been caused to the car. In the absence of any information in regard to the transfer of ownership of the vehicle, the insurance company cannot be held responsible for any liability arising out of the terms of the insurance policy issued in favour of the original owner of the vehicle. It is also to be noted that in case of transfer ownership of the vehicle, the insurance policy has also to be transferred in favour of the subsequent owner of the vehicle. The respondent has not informed the appellant company about his purchasing the vehicle from its previous owner. No fresh certificate incorporating the changes in regard to the ownership of the vehicle issued in favour of the respondent making him entitled to the benefits conferred under the insurance policy that was issued in favour of the respondents. Therefore, we hold that the respondent is not entitled to the benefits under the policy and the impugned order is liable to be set aside.

    G.R.17 of the Indian Motor Tariff Rules require the subsequent purchaser of a vehicle i.e., transferee to apply within 14 days from the date of transfer to the insurer of the vehicle with the details of registration of the vehicle, the date of transfer of the vehicle, the previous owner of the vehicle and number and the date of the insurance policy so that the insurance company would make necessary changes in its record and issue a fresh certificate of insurance.

    In “M/s Complete Insulations (P) Ltd., Vs New India Assurance Company Limited reported” in AIR 1996 SC 586, the Supreme Court held that Sec.157 of Motor Vehicle Act is a deeming provision in regard to the transfer of insurance policy in favour of the transferee only in respect of claims by the third parties. The Apex Court held that in the absence of any information to the insurance company by the transferee, there would not be any agreement between the insurance and the transferee.

    In “United India Insurance Company Limited Vs. V.C.Deenadayal and Anr.” in R.P.No.426 of 2007 decided on 13.3.2009, the Hon’ble National Commission while deciding revision which arose out of an order passed by this State Commission, held as follows:

    “Under the provision of the Motor Vehicles Act, 1988, the registered owner of the vehicle should have informed the Transport Authority about the sale of the vehicle and the purchaser should have sought the incorporation of her name in the R.C. as the transferee owner. Further, in order to avail the benefit of insurance, the purchaser should have informed the insurance company within 14 days of its purchase under Sec.157 (2) of the Motor Vehicle Act, 1988 which admittedly has not been done in this case.”



    Further, it was held



    “ We are supported in our view by judgment of this Commission in Madan Singh Vs. United India Insurance Co.Ltd.l and Anr.1 (2009) CPJ 158 (NC) to which which one of us (Justice R.K.Batta) was a party. Under the circumstances the view taken by the State Commission that the respondent/complainant no.2 who purchased the vehicle has stepped into the shoes of the respondent/complainant no.1 and, therefore, entitled to the benefit of the insurance is totally erroneous and therefore, not sustainable.”



    In view of the settled legal position and in the circumstances of the case, the appeal deserves to be allowed.

    In the result, the appeal is allowed by setting aside the order dated 17.9.2007 of the District Forum-I, Hyderabad. Consequently, the complaint is dismissed. No costs.

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    Default United India Insurance

    F.A.No.868/2007 against C.D.No.61/2005, Dist.Forum,Prakasam Dist., Ongole.

    Between:

    The Divisional Manager,

    United India Insurance Company Limited,

    LIC office Opposite

    Ongole,

    (Substituted as per orders in

    I.A.No.425 of 2005, dated 12.09.2005 ) … Appellant/

    Opp.party no.1

    And

    1.Chilipi Lakshmi Kanthamma,

    Represented by son by Chilipi Srinivasa Reddy,

    W/o.Ramana Reddy,

    Aged about 46 years,

    R/o.Chandrapadu village,

    Chimakurthy Mandal,

    Prakasam District. … Respondent/

    Complainant



    2.The Prakasam District Co-operative Central Bank,

    Chimakurthy Mandal,

    Praksam District. ….Respondent/

    Opp.party no.2

    Counsel for the Appellant : M/s.R.Briz Mohan Singh

    Counsel for the Respondents : M/s.R.V.Prasad-R2



    CORAM: SMT. M.SHREESHA, HON’BLE MEMBER,

    AND

    SRI K.SATYANAND , HON’BLE MEMBER.



    MONDAY, THE FOURTEENTH DAY OF DECEMBER,

    TWO THOUSAND NINE.



    Oral Order (Per Smt M.Shreesha, Hon’ble Member)

    ***



    Aggrieved by the order in C.D.No.61/2005 on the file of District Forum , Prakasam Dist at Ongole , the first opposite party preferred this appeal.

    The brief facts as set out in the case are that the complainant’s husband was an agriculturist and was a member in Pallamalli Primary Agriculture Cooperative Society and took loan of Rs.19,000/- from the society under Loan Account no.58 and a security of share capital of Rs.1,885/- was taken by the account loan customer in the society and the second opposite party deducted the premium from the amount granted to the complainant’s husband and paid insurance premiums with opposite party no.1 and the policy was in force as long as the loan is discharged. On 30.1.2003 the insured died due to snake bite which was informed to the opposite parties but they did not pay the amounts. The complainant being an uneducated lady did not file FIR or got post mortem conducted but she is only having a doctor certificate that her husband died due to snake bite and the dead body was cremated in the presence of all the villagers and other relatives. She even got issued a legal notice through her advocate but her claim was not settled . Hence the complaint seeking direction to the opposite parties to settle the claim of the complainant and direct them to pay Rs.1 lakh under the scheme with interest at 12% p.a. from the date of filing of the complaint till the date of realization .

    The first opposite party filed counter stating that the complainant already filed C.D.No.10/2004 claiming compensation of Rs.1 lakh for the death of her husband who is having Abhaya Gold Savings Account bearing no.3515 in Andhra Bank and the case was dismissed by the Forum and this opposite party contends that the insured did not die of snake bite and the death was natural death and that there is no deficiency in service on their behalf.



    The second opposite party filed counter stating that the certificate issued by the doctor and M.P.T.C. member cannot prove at all that the complainant’s husband died of snake bite and that the complainant’s husband’s death is a natural death and hence there is no deficiency in service on their behalf.

    The District Forum based on the evidence adduced i.e. Exs.A1 to A6 and Ex.B1 allowed the complaint directing the opposite party no.1 to pay Rs.1 lakh with interest @ 9% p.a. from the date of the petition i.e. from 19.9.2005 till the date of realization and to pay an amount of Rs.1000/- towards compensation and Rs.1000/- towards costs and dismissed the complaint against the opposite party no.2.

    Aggrieved by the said order, the opposite party no.1 preferred this appeal.

    The appellant also filed written arguments.

    The facts not in dispute are that the complainant’s husband is a loanee of the Primary Agricultural Cooperative Society and this society deducted his premium from the loan amount and remitted to the first opposite party insurance company towards the accident policy and the facts that the complainant is a member of the Primary Agricultural Cooperative Society is evidenced from Exs.A1 and A2. The period of policy and the policy amount which is covered is not in dispute. The complainant submits that her husband on 30.1.2003 died due to snake bite. It is the case of the complainant that inspite of making the claim, the opposite parties did not settle it on the ground that the death is natural one and not an accidental one. We have perused Ex.A5 which reads as follows:

    “This is to certify that Mr.Chilipi Ramana Reddy S/o.P.Ch.Pitchi Reddy, r/o.Chandrapadu village is brought to me on 30.01.2003 at 11 A.M. in severe shock with haemorrhage from multiple sites. There is evidence of snake bite (Lt. leg swollen, ocdematous with subcutaneous haemorrhage). The person did not show any signs of improvement with intensive therapy. He is referred for higher centre for further management.”



    The learned counsel for the appellant in his written arguments contended that this certificate is fabricated and anti dated and cannot be given weight. We find this contention is unsustainable. Since the complainant has proved his case in the light of Ex.A5 that the insured died of snake bite and the burden of proof shifts to the opposite party since it is their contention that this document is fabricated, to prove so, which they failed to do . We rely on the decision of the National Commission reported in II (2009) CPJ 149 (NC) Gangotri

    DEVI AND OTHERS vs.. National Insurance Company Ltd. and others where in it is stated that absence of FIR and post mortem report cannot be a ground for repudiation when the death is not a suspicious one as in the instant case.



    The learned counsel for the appellant further argued that the policy was issued only for Rs.50,000/- and not for Rs.1 lakh and I.A.No.558/2005 was filed for rectification of compensation from Rs.1 lakh to Rs.50,000/- which was dismissed by an order dt. 6.1.2006. He contended that the insured amount is only Rs.50,000/- and not Rs.1 lakh. He further contended that C.D.No.10/2004 is dismissed by the District Forum and this is evidenced by Ex.B1 order copy. However we observe from the record that the complainant had preferred an appeal F.A.No.1699/2005 which was allowed by this Commission and the insurance company was directed to pay Rs.1 lakh which however pertains to the insurance policy taken by Andhra Bank and has nothing to do with the policy herein. The learned counsel for the appellant did not file any documentary proof i.e. policy copy to establish that the amount of Rs.1 lakh prayed for by the complainant is not the insured amount and that the insured amount is only Rs.50,000/-. It is also pertinent to note that the opposite party did not raise this quantum of insurance amount either in their counter before the District Forum or in their affidavit. It is only at the appellate stage that they said so in the written arguments but also did not file any policy copy to establish their case.

    In the result this appeal is dismissed and the order of the District Forum is confirmed . Time for compliance four weeks.

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    APPEAL NO. 76 OF 2009
    United India Insurance Co. Limited, through its Dy.Manager, its duty constituted attorney, R.O., 123-124, Sector 17, Chandigarh.
    ….Appellant.

    Versus

    1. Inder Parkash s/o Sh.Jagan Nath, resident of H.No. 27, Govind Vihar, Tribune Colony, Kansal, District Mohali.

    2. M/s Jyoti Motors, SCO No. 6 (Backside), Sector 11, Panchkula, through its proprietor.

    ….Respondents.

    BEFORE: HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

    MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

    MRS. NEENA SANDHU, MEMBER.

    Present: Sh.Gaurav Bhardwaj, Advocate for the appellant.

    Sh.Inder Singh, Advocate for respondent No.1.

    Respondent No.2 already exparte.


    MRS. NEENA SANDHU, MEMBER

    1. This is an appeal filed by the OP i.e. United India Insurnace Company Limited against order dated 22.12.2008 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No.419 of 2008.

    2. Briefly stated the facts of the case are that the complainant got his Maruti Zen Car bearing No. CH-03-P-7260 insured with OP No.2 (United India Insurance Company Limited) for Rs.2,00,000/-, vide cover note No. 840217 dated 9.4.2007, which was valid from 10.4.2007 to 9.4.2008. On 4.12.2007 the car met with an accident at Naraingarh – Panjlasa Road. The matter regarding the accident was reported to the police as well as to OP Nos. 1 to 3 and after getting the signatures of the complainant on insurance claim papers, OP No.3 (Mr.Walia, Agent) directed the complainant to take the vehicle to OP No.4 (M/s Jyoti Motors) for repairs and told that the claim shall be paid to OP No.4 directly. The vehicle was repaired by OP No.4 and a bill dated 10.1.2008 was raised and the OP No.2 did not make the payment of the bill. OP No.4 refused to release the vehicle to the complainant for non-payment and the vehicle was in the custody of OP No.4 for more than two months. The complainant was forced to deposit Rs.52,816/-, with OP No.4 only then the vehicle was released to him. It was submitted that after the repair of the vehicle, the colour of the vehicle was also not matched and the vehicle was not repaired properly as it was having certain defects. It is submitted by the complainant that the case of the complainant was handled by the OPs in a casual manner, which caused him physical and mental harassment. The complainant got served a legal notice upon the OPs, but to no avail. On the above said act of the OPs it was stated that as it amounts to deficiency in service and unfair trade practice, hence, the complaint was filed.

    3. Notice was sent to OPs but OP No.4 refused to accept the summons. Hence, OP No.4 was proceeded against exparte.

    4. Reply was filed by the OPs No. 1 to 3 in which it was admitted by them that the said vehicle was insured with them, which was valid from 10.4.2007 to 9.4.2008. It was pleaded that neither the vehicle met with any accident nor any claim was ever lodged with them. However, the complainant lodged a claim with regard to the accident on 11.12.2007. It was submitted that the complainant was never directed by the insurance company to take the vehicle for repairs in the workshop of OP No.4 and they were not responsible for the said repairs. Hence the claim of the complainant was rightly refused as the same was found not payable as per the terms and conditions of the policy and as per the provisions of Indian Motor Tariff, formulated under the Insurance Act, 1938. The complainant had already received the payment of ‘No Claim Bonus’ vide cheque dated 20.8.2007, to which the complainant was not entitled to and his claim was found rightly rejected by the competent authority. Hence, there was no deficiency in service on the part of answering OPs and prayed for dismissal of the complaint.

    5. The parties led their evidence in support of their contentions.

    6. The District Forum allowed the complaint as Annexure R-4 i.e. (Motor Survey Report) showing that the complainant is entitled to compensation of Rs.20,755/- as labour charges, Rs.1200/- as towing charges and Rs.32,815/- as costs of parts (total of which comes to Rs.54,090/-) and the surveyor had deducted Rs.500/- as ‘less excess’ and Rs.8018.16 paise as less depreciation. The depreciation had already been mentioned in rubber parts @50% and metal parts @25%. Therefore, there is no question to further deduct the depreciation of Rs.8018.16 paise. The complainant is, therefore, entitled to Rs.53590/- – Rs.2000/- as salvage value, though the complainant had claimed much more than that. The OPs are directed to pay to the complainant a sum of Rs.51,590/- alongwith litigation costs of Rs.2,200/- within 30 days from the date of receipt of copy of the order failing which they would be liable to pay the same along with interest @12% p.a. since 5.1.2008 (the date of survey report, Annexure R-4) till its payment to the complainant.

    7. Aggrieved by the order of District Forum, the present appeal has been filed by the OP i.e. United India Insurance Company Limited. Sh.Gaurav Bhardwaj, Advocate has appeared on behalf of appellant and Sh.Inder Singh, Advocate has appeared on behalf of respondent No.1 i.e. Inder Parkash but none has appeared on behalf of respondent No.2 i.e. M/s Jyoti Motors. Hence, respondent No.2 was proceeded against exparte vide order dated 20.4.2009. The main point for consideration before us is that the complainant had earlier obtained any claim from the previous insurer.

    8. The contents of paras No. 1 to 4 in the appeal have already been written in the complaint and in the reply, so there is no need to reiterate it again. In the grounds of appeal, it is submitted by the appellant that the impugned order passed by the District Forum is based on surmises and conjectures and not sustainable in the eye of law on the ground that in the proposal form, the complainant had confirmed that he was eligible for NO CLAIM BONUS as per Column No. 21. However on confirmation it was found that the complainant had claimed and obtained a claim of the same vehicle on the previous policy from National Insurance Co., New Delhi and as such in terms of the General Regulations of IMT, the complainant was not entitled to any claim and the learned District Forum grossly erred while totally discarding the document produced by the appellant as annexure R-2. It is submitted that the privity of contract between the insurer and insured is a contract of utmost good faith but in the present case the insured totally misled the appellant company by giving mis-statement about the previous claim, which in fact was received by him. It is averred that as per terms and conditions of the policy, it is the duty of the insured to inform the company immediately after the occurrence but in the present case the complainant had given intimation to the appellant company only on 11.12.2007 i.e. after about seven days of the alleged accident. This point had totally been over looked by the learned District Forum. The complainant has also pleaded wrongly that he was directed by the appellant company to take the vehicle to the repairer. The complainant had given the intimation to the company only on 11.12.2007, thus question of direction given to the complainant to take the vehicle to the repairer does not arise. This point had also been overlooked by the learned District Forum. It is further submitted by the appellant that the surveyor assessed the loss to the tune of Rs.44,371/- and the Forum awarded a sum of Rs.51,590/- but it is a well settled law that the liability of the company, if any, cannot be beyond the liability as assessed by the surveyor. Hence, it is prayed that the impugned order passed by the District Forum may kindly be set aside.

    9. After hearing the learned counsel for the appellant , respondent No.1 & after the perusal of the record, we come to the conclusion that the complainant got insured his Maruti Zen Car bearing No. CH-03-P-7260 from the insurance company for Rs.2 lacs vide cover note No. 840217 dated 9.4.2007, which was valid from 10.4.2007 to 9.4.2008 and the same was met with an accident on 11.12.2007 as the complainant in his written arguments stated that inadvertently in the complaint the date has been mentioned wrongly as 4.12.2007, which can be proved by perusing the DDR No. 18 dated 13.12.2007. On the other hand, the contention of the OP is that in the present case the complainant has breached the principal of good faith by not disclosing the true facts. The complainant in his proposal form has confirmed that he was eligible for ‘NO CLAIM BONUS’ as per Column No. 21. However on confirmation it was found that the complainant had claimed and obtained the ‘NO CLAIM BONUS’ of the same vehicle on the previous policy from National Insurance Company, New Delhi vide cheque dated 20.8.2007. The OP has placed on file the document annexure R-2 (Page I & II), which shows that the complainant has claimed and obtained ‘NO CLAIM BONUS’ from National Insurance Company for the previous year. In our view in these circumstances of the case the onus is on the complainant to prove that he had not obtained any ‘NO CLAIM BONUS’ from the National Insurance Company, New Delhi. For this reason on 23.10.2009 a direction was given by the State Commission to the complainant to furnish an affidavit to this effect that he has not obtained ‘NO CLAIM BONUS’ but the complainant failed to produce the affidavit or any cogent evidence to this effect. In our view, by not filing an affidavit, the complainant himself failed to prove that the ‘NO CLAIM BONUS’ was not availed by him for the previous year. Therefore, the complainant himself has misled and deceived the appellant company by giving mis-statement about the previous claim. Hence, the claim of the complainant was rightly rejected by the OP. In view of the above findings, there is no deficiency in service on the part of OP. We do not agree with the view taken by the learned District Forum and therefore we set aside the impugned order passed by the District Forum and allow the appeal for the reasons mentioned above without any order as to costs.

    10. Copies of this order be sent to the parties, free of charge.

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    F.A.No.1430 OF 2007 AGAINST C.C.NO.129 OF 2006 DISTRICT CONSUMER FORUM WEST GODAVARI AT ELURU

    Between
    M/s Sri lakshmi Medicals
    Rep. by its Proprietor: Adapa Surya
    Chandra Prakasa Rao S/o Kondayya
    aged 57 years, R/o K.N.Road,
    Tadepalligudem, W.Godavari Dist. Appellant/ complainant

    A N D

    1. The United India Insurance Co., Ltd.,
    Rep. by its General Manager,
    Head Off: No.24, White’s Road
    Chennai-014

    2. The Divisinoal Manager,
    The United India Insurance Co.,Ltd.,
    K.N.Road, Tadepalligudem
    W.Godavari District
    Respondents/ opposite parties

    Counsel for the Appellant Sri T.Durgaprasad Rao

    Counsel for the Respondents Sri Ramalingeswara Rao
    QUORUM: HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

    &

    SRI R.LAKSHMINARSIMHA RAO, MEMBER

    MONDAY THE EIGHTEENTH DAY OF JANUARY

    TWO THOUSAND TEN

    Oral Order ( As per R.Lakshminarsimha Rao, Member)

    The appeal is filed by the complainant challenging the order of the District Forum, Eluru at West Godavari in C.C.No.129 of 2006 whereof the complaint was dismissed holding that the right of the appellant stood extinguished with the operation of clause 6 of general conditions of the Insurance Policy issued by the respondent and that there was no deficiency in service on the part of the respondent.

    Briefly stated facts of the case are that the appellant is a medical stores the stock of which was insured with the respondents under special peril policy for the period from 12.11.2003 to 11.11.2004. The appellant used to send monthly stock statement to Andhra Bank. The appellant has filed a civil case against his land lord in regard to the tenancy matter of the medical shop during pendency of which the landlord of the appellant forcibly demolished the shop on 10.9.2004 and thereafter a complaint was lodged with the police and also the matter was intimated to the respondent no.2 who had appointed a surveyor to assess the damage caused to the shop. The surveyor estimated no loss without any proper cause. The respondents repudiated the claim of the appellant on the ground that the appellant had not furnished the stock details in spite of the fact that he furnished the bank statement containing the stock details.

    The respondent no.2 filed counter which was adopted by the respondent no.1.

    It was contended on behalf of the respondent no.2 that immediately on receipt of intimation from the appellant, they appointed a deputed a surveyor to assess the loss said to have been caused to the stock. On account of non-cooperation of the appellant even after several letters were addressed to him by the surveyor and the respondent, loss of stock could not be assessed. The appellant by letter dated 3.1.2005 informed the respondent that the police obstructed the surveyor from inspecting the premises. The surveyor submitted his report on 30.3.2005 stating these facts. Unless authenticated documents to prove the value of the stock were available, the loss of the stock could not be assessed. The appellant failed to produce the documents. The bank statement will not serve any purpose nor will it have any binding effect on the respondent to assess the stock.

    The appellant addressed letter dated 8 .9.2005 informed the respondents that the Jr.Civil Judge, Tadepalligudem in his order dated 5.8.2005 appointed a Commissioner to assess the damage. A surveyor was deputed and reported the loss to the tune of Rs.53,763/-The surveyor was appointed for the purpose of complying with the order of the court. Deputing the surveyor does not amount any liability under the policy. The surveyor could not assess the loss as physical inspection of the medicine said to have been under the demolished building could not be made as also for the reason that the file was pending for a long time due to non-cooperation of the appellant in regard to the assessment of loss to the stock. The respondent closed the file by treating it as no claim.

    In proof of its case the proprietor of the appellant firm has filed his affidavit and the documents Exs.A1 to A10.

    On behalf of the respondents, the Senior Divisional Manager, D.Durga Prasad has filed his affidavit. Exs.B1 to B20 were marked on behalf of the respondents.

    Both parties filed their respective written arguments.

    Feeling aggrieved by the order of the District Forum the appellant has filed the appeal contending that the complaint cannot be treated as against the repudiation exemplified in Ex.B13 and that the respondents admitted in para 14 of their written version that the attending circumstances establish the waiver of repudiation by the respondent as also reopening of the matter by them. There was no subsisting disclaim after 12.12.2005.


    The points for consideration are:

    1) Whether the right of the appellant firm was extinguished by virtue of clause 6 of the conditions of the insurance policy?

    2) Whether the loss to the stock was substantiated by any evidence?

    3) Whether there was deficiency in service on the part of the respondents?

    4) To what relief?

    POINT NO.1 The insurance of the appellant firm with the respondents under the insurance policy bearing No.151400/11/03/00614 for an assured sum of Rs.5 lakhs is not in dispute. It is also not disputed that a tenancy suit has been pending between the appellant firm and its landlord and during pendency of which dispute, the landlord of the appellant firm said to have demolished the appellant shop. FIR in crime No.270 of 2004 by the police Town police Tadepalligudem evidences the demolition of appellant shop by means of a proclainer. The Rent Control Court Tadepalligudem appointed an advocate commissioner who submitted his report in I.A.No.442 of 2005 to the effect that on 2.10.2005 in his presence and in the presence of surveyor of the respondents herein, debris was cleared from the demolished building whereof the medicines cleared from the debris was made a list of by the surveyor of the respondents which was destroyed later. A copy of list prepared by the surveyor was submitted to the advocate commissioner and the same document was said to have been filed along with his report by the advocate commissioner before the Rent Control Court. Thus the surveyor had inspected the spot and assessed the loss to the stock on 2.10.2005.

    After the shop was demolished, the police had seized the matter and subsequently the rent control court. The respondents contended that the surveyor has submitted his report on 13.3.2005 to them. The advocate commissioner has filed his report to the effect that the surveyor has assessed the loss to the stock on 2.10.2005 in his presence. The respondents contended that the surveyor assessed the loss to the stock at Rs.53,763/-. In view of admission of the respondent that the loss to the tune of Rs.53,763/- was assessed by the surveyor, the contention that the appellant has not cooperated the surveyor prior to his assessment of the damage caused to the stock pales into insignificance as also in view of the fact that the appellant addressed a letter dated 1.2.2005 to the surveyor to the effect that the S.I. of Police was not permitting him of inspection of the spot in the absence of any permission from the court. It appears subsequently the court has permitted for inspection of the spot and assessment of loss caused to the stock of the appellant shop. Therefore, 2.10.2005 on which date the surveyor had assessed the loss has to be considered as the cause of action for the appellant to initiate proceedings in respect of his claim. The respondents by letter dated 7.7.2005 informed the appellant that in view of abnormal delay in showing the damaged stock the claim was not admissible in response to which the appellant had addressed letter dated 8.9.2005 informing the respondent that the civil court through its order dated 5.8.2005 appointed a commissioner to assess the loss to the stock in the appellant shop. In response to the letter dated 8.9.2005, the respondents deputed a surveyor for inspection of the damaged goods. Now the respondents contend that the deputation of surveyor for assessment of loss to the stock cannot be considered as admission of their liability in terms of the insurance policy.

    After the demolition of the shop, the appellant had set the criminal law in to motion and informed the respondent no.2 the matter of demolition of the shop. The respondents deputed a surveyor who expressed his inability to assess the loss caused to the stock. Thereafter lengthy correspondence has taken place between the parties that included in its ambit the denial by the police of any inspection of the spot except by permission from the competent court of law resulting in filing of an application for appointment of an Advocate Commissioner by the appellant shop and the assessment of the loss to the stock by the surveyor on 2.10.2005 in the presence of the Advocate Commissioner. The sequence of the events ultimately took its mould in culminating in assessing the damage by the surveyor to the tune of Rs.53,763/-. Therefore, we are of the opinion that in view of pendency of the investigation by the police as also the pendency of the criminal proceeding before the court and also that the deputation of surveyor are the causes giving rise to casue of action. The section 6(i) of the conditions of the policy has no application and as such it cannot be invoked.

    POINTS NO.2 & 3 Having found that the right of the appellant is not extinguished by the operation of clause 6(1) of the General Conditions of the Insurance Policy, it is incumbent upon us to consider the quantum of loss suffered by the appellant as also the deficiency in service if any, on the part of the respondents. The appellant has contended that it had suffered loss to the tune of Rs.4,60,500/-. Admittedly, on 2.10.2005 the surveyor has assessed the loss to the stock at Rs.53,763/-. The respondents have not settled the claim of appellant even after the surveyor was submitted his report whereof he assessed the damage caused to the shop of the appellant shop. The respondents have not paid the amount of Rs.53,763/- to the appellant without assigning any reason thereto. The appellant was conscious of the amount arrived at by the surveyor as copy of surveyor’s report was filed by the advocate commissioner along with his report before the court. The appellant having been in touch with the affairs, has not made any protest to the figure arrived at by the surveyor. It is pertinent to note that the surveyor has assessed the loss to the stock in the presence of the advocate commissioner as also the appellant herein. Therefore, by any stretch of imagination can it be said that the surveyor was at fault in assessing the damage caused to the stock of the appellant shop.

    In United India Insurance Co., Ltd., Vs. Smt Maya reported in 2008 CTJ 580, the Hon’ble National Commission held that the surveyor’s report should not be dismissed summarily. It has to be given importance it deserves as surveyor is an independent and qualified person appointed under relevant provisions of the insurance Act. Further, the National Commission held as “ a catena of judgments of both the Apex Court as well as this commission has noted the point that a surveyor’s report should not be dismissed summarily, as the surveyor has the role of an independent and qualified person appointed under the relevant provisions of the Insurance Act, 1938, as amended from time to time”.

    Based on the above decisions, we conclude that the surveyor’s report is the best piece of evidence insofar as in assessment of the loss to the stock of the insured shop/establishment concerned and as such we are of the considered opinion that the loss caused to the stock of the appellant shop was worth Rs.53,763/- and the appellant is held entitled for the said amount along with interest In that view of the matter, the appeal deserves to be allowed.

    In the result the appeal is allowed by setting aside the order of the District Forum. Consequently the complaint is allowed directing the respondents to pay an amount of Rs.53,763/- along with interest @9% per annum from the date of filing of the complaint till payment of the amount and costs of Rs.2,000/-. Time for compliance four weeks.

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    FA.No.694/2007 AGAINST C.C.No.101/2006 DISTRICT FORUM, KARIMNAGAR .

    Between:

    The United India Insurance Company Ltd.,

    Branch Office, D.No.13-36/A, 1st floor,

    Main Road, Jyothinagar, Godavarikhani of

    Karimnagar, rep. by its Manager. Appellant/

    Opp.party

    And

    Kokkula Laxmi, W/o.Srinivas

    Age 28 years, Occ:Household,

    R/o.H.No.8-1-523, Hanuman nagar,

    Godavarikhani of Ramagundam Mandal of

    Karimnagar District.. Respondent/ Complainant.


    Counsel for the Appellant: M/s.Smt.S.A.V.Ratnam

    Counsel for the Respondent. M/s.M.Praveen Kumar.

    QUORUM: SMT.M.SHREESHA, MEMBER

    &

    SRI K.SATYANAND, MEMBER

    MONDAY, THE EIGHTEENTH DAY OF JANUARY,

    TWO THOUSAND TEN

    (Typed to the dictation of Sri K.Satyanand,Hon’ble Member)

    This is an appeal filed by the opposite party against whom the District Forum imposed liability to pay the insurance amount to the complainant.

    The facts that led to filing this appeal are briefly as follows:

    The complainant is the wife of one Kokkula Srinivas, who had taken an insurance policy bearing No.050802/31/03/04330 from the opposite party in respect of his Bajaj Motor Cycle bearing No.AP-15-L-6182 on 21-10-2003 valid from 22-10-2003 to 21-10-2004 by paying a premium of Rs.280/- covering the risk of third party and personal accident benefit to a tune of Rs.1,00,000/-. On 31-5-2004 the husband of the complainant met with an accident while going on his motor cycle as Pillion rider and driven by one Neelam Ravinder and sustained grievous injuries and died on 4-6-2004 while undergoing treatment. A criminal case was registered in C.C.No.59/2004 and the complainant submitted a claim claiming the amount of Rs.1,00,000/- along with necessary documents. But the opposite party repudiated the claim on 21-4-2005 stating that the rider of the motor cycle was not holding valid driving license. Hence the complainant approached the District Forum for a direction to the opposite party to pay the insurance amount of Rs.1,00,000/- together with interest at 12% p.a. from the date of death of her husband till the date of realization and costs.

    Opposite party resisted the complaint by filing a counter and contended that there was no deficiency on its part. They admitted the issuance of the policy in favour of the husband of the complainant. It submitted that it under took to cover third party risk and personal accident coverage for an amount of Rs.1,00,000/- and the said coverage is subject to condition that the driver should hold an effective driving license. It submitted that after receipt of the claim, they verified and found that the rider of the motor cycle had no effective driving license to drive a motor cycle and he was holding driving license to drive a auto rickshaw and there was clear violation of the terms and conditions of the policy and hence the claim was rejected and submitted that there was no deficiency of service on its part.

    In support of her case, the complainant filed her own affidavit and relied upon documents marked as Exs.A1 to A14. On the other hand, the opposite party filed counter by way of affidavit and did not adduce any documentary evidence.

    On a consideration of the evidence adduced, the District Forum came to a conclusion that the person driving the vehicle was having a valid license and therefore the owner of the vehicle who was riding the vehicle on the pillion died in the accident and therefore entitled to the insurance coverage and accordingly gave the relief.

    Aggrieved by the same, the insurance company contested the order urging that the possession of auto license by the driver did not meet the requirement of possessing a two wheeler license and in that view of the matter, the former cannot be accepted as effective license for the purposes of validly invoking the insurance contract.

    Heard both sides.

    The short point that arises for consideration is whether the repudiation insisted upon by the insurance company is justified to over turn the order of the District Forum?

    With almost all the facts remaining undisputed the bone of contention falls within a very narrow compass. In other words, the only point is whether the possession of auto driving license by the driver of the vehicle would be sufficient compliance with the requirement of holding an effective license for the purposes of successfully invoking the insurance policy. The District Forum relied upon a decision in this regard and answered the point in the affirmative. A close look at the insurance policy suggests that what all that was necessary was the possession of effective license by the driver of the accident vehicle at the time of the accident. It is not in dispute that the driver of the two wheeler, Mr.Neelam Ravinder, at the time of accident possessed driving license which was in force. The word ‘effective’ makes emphasis more on the license being in vogue at the relevant point of time than the license being specifically in respect of a type of the vehicle. In any view of the matter, as rightly observed by the District Forum, the said driver was having license to drive auto rickshaw which in itself is a geared vehicle and we do not think that the hair splitting cleavage between an auto and a two wheeler is of such importance as to render the license in question ineffective. In other words when the validity of the license was not otherwise in question, except as to the type of the vehicle that too in the perception of the appellant, the fact remains that auto rickshaw is a heavier vehicle compared to the two wheeler and there is no perceptible distinction between the parameters that justify this classification of license. Thus we do not see any good grounds to interfere with the order of the District Forum.

    Accordingly the appeal is dismissed but without costs in the circumstances of the case.[/B]

  13. #163
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    FA.No.546/2007 AGAINST C.D.No.98/2004 DISTRICT FORUM, KARIMNAGAR.

    Between:

    United India Insurance Company Limited

    Karimnagar Branch, Post Box No.1,

    2-8-186, 1st floor, Opp:Hotel Ashoka

    Mukarampura, Karimnagar, R/by its Manager. Appellant/

    Opp.party
    A N D
    Md.Saleemulla Khan, S/o.Sadulla Khan

    Age 40 years, Occ:Owner of Auto/Ambulance Driver

    R/o.Govt. H.Qrs. Hospital

    Karimnagar-505 001 Respondent/

    Complainant

    Counsel for the Appellant: Mr.K.Kishore Kumar Reddy



    Counsel for the Respondent:M/s.B.Rajavardhan Reddy



    QUORUM: SMT.M.SHREESHA, MEMBER

    &

    SRI K.SATYANAND, MEMBER



    MONDAY, THE EIGHTEENTH DAY OF JANUARY,

    TWO THOUSAND TEN


    (Typed to the dictation of Sri K.Satyanand,Hon’ble Member)
    ***



    This is an appeal filed by the opposite party against which the Forum passed an order imposing liability.

    The facts that led to filing this appeal are briefly as follows:

    The complainant was the owner of Auto bearing NO.AP 15 V 1015 which was insured with the opposite party vide insurance policy bearing No.050801/31/02/03471 dated 16-7-2002. The complainant submitted that as usual he kept his auto in front of his house on the intervening night of 31-5-2003 and 1-6-2003 and found it missing. He came to know that some unknown offenders stole the auto and burnt it near Pooja Hospital of Karimnagar. Immediately the complainant lodged a complaint in Cr.No.186/2003 and informed the opposite party about the incident and lodged a claim along with copies of F.I.R. , report of Fire Officer, insurance policy etc., The surveyor of the opposite party visited the spot and advised the complainant to submit estimate of repairs. The complainant submitted estimate given by Garuda Motors, Kathirampur for Rs.66,170/- and also supplementary estimates of Rs.12,970/- and Rs.3,000/- but the opposite party had not settled the claim. The complainant therefore got issued a legal notice on 5-8-2003 for which the opposite party gave a reply stating that the matter would be settled subject to terms and conditions of the insurance policy and that the first surveyor caused delay and failed to discharge his duty. The complainant got issued another legal notice on 1-8-2003 and in response to the said notice, the opposite party appointed another surveyor, Venkateshwar Reddy, Warangal and he inspected the damaged vehicle in the absence of the complainant and submitted his report. Inspite of several requests the opposite party did not settle the claim or permit the complainant to proceed with the repairs but issued a letter dated 10-11-2003 that the complainant had not started the repairing work to the vehicle and therefore no consequential damages will be paid. It is the case of the complainant that the delay was on account of the opposite party postponing the matter and as the vehicle was kept idle he submitted that he could not pay the loan or give it on rent of Rs.300/- per day. Hence the complaint for a direction to the opposite party to pay the estimated value of the vehicle of Rs.1,00,000/- and also pay Rs9,000/- per month from the date of accident together with damages of Rs.5,000/- and costs.

    Opposite party filed counter stating that it was not known as to how the vehicle was burnt and as per the enquiry made, they came to know that the police did not complete the investigation and that there was some mystery with regard to burning of the auto and that no panchanama was conducted regarding the nature and extent of damage. The alleged estimation by the complainant was false and as per the estimation of the surveyor deputed by the opposite party, the damage would be round Rs.13,030/- and the complainant made false claim to get more money and the question of claiming damages arises only when the policy conditions are fulfilled and police investigation reveals that there was no foul play in burning the auto. They finally submitted that there was no deficiency in service and prayed for dismissal of the complaint.

    In support of his case, the complainant filed his affidavit and relied upon documents marked as Exs.A1 to A12. On the other hand, opposite party filed affidavit of its Divisional Manager and relied upon document marked as Ex.B1.

    On a consideration of the evidence adduced on either side, the District Forum came to the conclusion that there was deficiency in service on the part of the opposite party and directed it to pay to the complainant Rs.66,170/- with interest at 9% p.a. from the date of complaint till payment together with costs of Rs.1,000/-.

    Aggrieved by the said order, the opposite party filed the present appeal urging, interalia, the following grounds. The District Forum failed to see that it did not possess jurisdiction as the matter ought to have gone to a civil court. It also failed to appreciate properly the evidence adduced and wrongly relied upon Ex.A5 estimate instead of Ex.B1 surveyor’s report. It ought not to have granted the relief as sought by the complainant.

    Heard both sides

    The only point for consideration is whether there are any good grounds to interfere with the order of the District Forum?

    As a matter of fact the accident occurred as far back as on 31-5-2003. Immediately thereafter the police investigated into the incident after registering an F.I.R. and submitted their final report, Ex.A2 dated nil. In the said final report, the police closed the FIR with a finding that it was an undetectable case. This gives a quietus to the apprehensions of the insurance company, which they canvass as constituting their defense by urging that the claim cannot be adjudicated till the foul play on the part of the complainant was ruled out. Perhaps, in the wake of Ex.A2, they gave a go by to that defense and now in the grounds only points that were seriously urged remained the want of jurisdiction for the District Forum and the District Forum unjustifiably relying upon the estimate of the expenses as per Ex.A5 instead of their surveyor’s report Ex.B1. As far as want of jurisdiction is concerned it is incomprehensible as to what was the basis for them to take such a stand. The fact remains that the complainant answers the description of a consumer within the meaning of the Consumer Protection Act as he availed the insurance service from the opposite party which by virtue of its role in this transaction acquired the status of service provider. Thus, when the basic parameters for cognizance of a cause by the District Forum are made out, the unnecessary controversy as to jurisdiction does not serve any purpose except an empty plea merely for the sake of taking a plea. The appellant questioned the wisdom of the District Forum in accepting Ex.A5 estimate instead of Ex.B1 surveyor’s report. Ex.B1 surveyor’s report dated 20-12-2003 read in the remarks as if the surveyor obtained estimation set out in the surveyor’s report from the very same repairer that issued Ex.A5. Strangely Ex.B1 referred to a fact allegedly stated by the workshop supervisor to the effect that he had given the early estimation on the force of the insured. If really that was true, he ought to have examined him as after all the surveyor too, appeared to have contacted the very same person who issued Ex.A5 as far back as on 12-6-2003. Thus while Ex.A5 was given by the repairer in June, the surveyor claimed to have obtained from the very same person an estimation showing a lesser amount six months later even without obtaining from the said repairer any statement or any estimation duly signed by him letting alone filing his affidavit before the District Forum. Thus Ex.B1 is bound to fall on its own weakness as it made an attempt to repudiate Ex.A5 without proper evidence in that regard. So the District Forum was right in preferring Ex.A5 to Ex.B1. From the documents, it is crystal clear that the insurance company sat over the claim for quite a long time on one pretext or the other and such procrastination to process the claim itself constitutes deficiency in service. Thus we do not find any grounds to interfere with the order of the District Forum.

    Accordingly the appeal is dismissed but without costs in the circumstances of the case. The appellant shall comply with the order of the District Forum within six weeks from the date of receipt of this order.

  14. #164
    adv.singh is offline Senior Member
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    FA.No.950/2007 AGAINST C.C.No.94/2005 DISTRICT FORUM, MEDAK AT SANGAREDDY
    Between:

    1. The Branch Manager

    United India Insurance Company Limited

    2-8-186, 1st floor, Mukurampura

    Karimnagar.

    2. The Regional Manager,

    United India Insurance Company Limited,

    Basheerbagh, Hyderabad. Appellants/

    Opp.parties
    A N D

    1. Garipally Narayana, S/o.Veeraiah

    Aged about 50 years,

    Occupation:Teacher.



    2. Smt.Garipally Suseela, W/o.Naraana

    Aged about 42 years,

    Occupation:Household



    (Both are r/o.12-3-49/1, Nasapura,

    Siddipet, Medak District) Respondents/

    Complainants



    Counsel for the Appellant: Mr.R.Briz Mohan Singh



    Counsel for the Respondents :Respondents served.



    QUORUM: SMT.M.SHREESHA, MEMBER

    &

    SRI K.SATYANAND, MEMBER



    MONDAY, THE EIGHTEENTH DAY OF JANUARY,

    TWO THOUSAND TEN



    (Typed to the dictation of Sri K.Satyanand,Hon’ble Member)
    ***

    This is an appeal filed by the opposite parties assailing the order of the District Forum.



    The facts that led to filing this appeal are briefly as follows:

    The complainants are the parents of the deceased Srikanth, who died in an accident on 09-1-2005 while proceeding on a motor cycle along with another as he fell down and received head injury. He was shifted to Govt. Hospital, Siddipet for treatment from where he was shifted to Apollo Hospital for better treatment but unfortunately died on 12-1-2005 while under going treatment. The complainant No.1 who is the father of the deceased purchased the motor cycle involved in the accident for the purpose of deceased and the same was insured with opposite party No.1 and the policy was in force from 9-7-2004 to 8-7-2005. The accident occurred on 9-1-2005 when the policy was in force and the complainant paid the premium for the coverage of owner/driver and at the time of the accident, the deceased was driving the motor cycle. A case in Crime No.6/2005 U/s.337 of IPC was registered and after death of the deceased, the section of law was altered in to 304-A of IPC. The complainant No.1, after the death of the deceased approached opposite party No.1 and furnished the relevant documents and requested them to pay the insurance amount of Rs.1,00,000/- but the opposite parties did not pay the amount. The complainants, therefore, got issued a legal notice on 01-8-2005 but they issued a reply notice on 5-8-2005 and did not pay the amount. Hence the complainants approached the



    District Forum claiming Rs.1,00,000/- towards policy amount, Rs.25,000/- towards damages and costs.

    Opposite party No.1 filed counter denying the allegations made in the complaint. It denied that the motor cycle was purchased for the purpose of the deceased. It admitted that the vehicle was insured and it had issued policy bearing No.050801/31/04/03439 valid from 9-7-2004 to 8-7-2004 by paying the premium for the coverage of owner-driver but not for owner and driver. It asserted that the alleged vehicle has been registered in the name of G.Narayana i.e. complainant No.1. It stated that as per the documents filed by the complainants, it is clear that the deceased is the accused and committed offence of having neither license nor knowing the driving of the vehicle and carrying three persons which is against to law and therefore the complaint is not maintainable. They admitted that after the death of the deceased, complainant No.1 approached it for payment of the insured amount and vide reply dated 5-8-2005 it stated that the complainant No.1 purchased the vehicle and insured the same in his name and not in the name of the deceased Srikanth and Rs.50/- was collected under the head of Compulsory Personal Accident coverage but not other than the owner-cum-driver and submitted that there was no deficiency and prayed for dismissal of the complaint.

    Opposite party No.2 filed counter reiterating the same facts stated by opposite party No.1.

    In support of their case, complainant No.1 filed his affidavit and relied upon documents marked as Exs.A1 to A7. On the other hand, opposite parties filed their affidavits through Asst. Divisional Manager and relied upon Ex.B1.

    On a consideration of the evidence adduced on either side, the District Forum came to the conclusion that there was deficiency in service on the part of opposite parties 1 and 2 and directed them jointly and severally to pay to the complainants Rs.1,00,000/- with interest at 9% p.a. from the date of filing of the complaint i.e.6-9-2005 till the date of realization together with costs of Rs.1,000/-.

    Aggrieved by the said order, the opposite parties preferred this appeal contending that the District Forum failed to appreciate that in order to fasten personal accident liability to the insurance company, it is essential for the registered owner of the insured vehicle himself to be the driver but in the present case the person who was driving the vehicle was not the registered owner but it was his son and therefore the insurance company ought to have been absolved of the liability but erroneously the District Forum imposed the liability.

    Heard. Perused the record and the order of the District Forum.

    The only point that arises for consideration is whether there are any good grounds to interfere with the order of the District Forum?

    The only ground upon which the appellant tried to harp upon to justify the repudiation of the insurance claim is that while the insurance policy terms provide for risk cover only in respect of the owner who is also a driver and in the instant case, the driver happened to be a person other than the owner and therefore the claim on that footing ought to have been rejected by the District Forum. But there is any amount of fallacy in this argument. It is not in dispute that the term used to give insurance coverage in this regard was owner-driver as per certificate of insurance attached to Ex.A7 (2nd page). So the owner and driver are separated by the device of a hyphen. It is therefore in this context that the literal meaning of hyphen acquires any amount of importance. As per Merrian Webster dictionary ‘hyphen’ is used not only to compound/combine words but also to divide words. In the instant case while the appellant tried to make use of the hyphen in between the words ‘owner’ and ‘driver’ to read it as a compound word, the complainants naturally read those two words as distinct as one of the valid uses of hyphen was also to divide two words. If hyphen were to be construed as making the two words owner-driver a compound word then only such owner found driving alone gets the coverage. That means the owner travelling as pillion rider would loose the coverage. This leads to absurd results. So hyphen in the present context has to be disjunctively construed as conjunctive usage frustrates the purpose of the very policy by giving truncated coverage even to an owner pure and simple. So the only proper way of understanding owner-driver is that the hyphen in between seeks to convey the divisive meaning as two separate words making separate categories of persons entitled to the risk coverage. If really the language of the policy intended to take out drivers pure and simple from the protection of the insurance coverage, it would have used the simple word ‘owner’ whether driving or not without making any mention as regards driver. (Sec. 95 cl. Of M.V.Act)In this scenario, naturally the interpretation beneficial to the subject has to be necessarily applied. The learned counsel for the appellants did not touch this aspect at all. It is therefore in this context that the cleavage between the third party risk and the contractual risk for the insured and others expressly provided for pales into insignificance and irrelevance. As far as this case is concerned as this is clearly the case of the insured that the son of the insured as a driver was involved in the risk, this cuts at the very root of the case of the appellants. Thus there is absolutely no conflict between the law laid down by the Hon’ble Supreme Court in National Insurance Company v. Laxminaraine Dhuth relied upon by the appellants and the finding that even in the present case the kith and kin i.e. the parents of the person who was expressly insured by the contract in his capacity as a driver who unfortunately died sought for enforcement of the contractual liability far from being the enforcement of the statutory liability available for third party risks. Thus we do not see any infirmities in the order of the District Forum. In other words, there are no merits in the appeal.

    Accordingly the appeal is dismissed but without costs in the circumstances of the case. The appellant is directed to comply with the order of the District Forum within six weeks from the date of receipt of this order.

  15. #165
    adv.singh is offline Senior Member
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    FIRST APPEAL NO. :1042 OF 2007

    IN COMPLAINT CASE NO.:48 OF 2007

    DISTRICT CONSUMER FORUM :JALGAON.
    United India Insurance Co.Ltd.,

    18, Branchkata Kambata Building,

    42, Mercy Karvey Road, Church Gate,

    Mumbai,

    Through its Divisional Manager,

    United India Insurance Co.,

    Divisional Office,

    Aurangabad. …APPELLANT

    (Org.Opp.No.3)
    VERSUS

    1. Amit Surendra Bhatia,

    R/o 178, Joshipeth,

    Jalgaon.

    2. Surendra Bhagwandas Bhatia,

    R/o Joshi Peth, Jalgaon.


    3. Unique Mercantile India Pvt.Ltd.,

    through Shri Rajkumar Roy,

    Managing Director, F/5, Near Vishal

    Dinesh Bank, Income Tax Ashram Road,

    Ahmedabad.
    4. The Manager,

    Unique Marketing India Pvt.Ltd.,

    5-10, IInd Floor, G-Wing, Golani Market,

    Jalgaon. …RESPONDENTS

    (No.1 & 2-Org.Complainants,

    No.3 & 4-Org.Opp.No.1 & 2)
    CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.

    Mrs.Uma S.Bora, Hon`ble Member.

    Present : Adv.Shri.S.V.Kulkarni for appellant,

    Adv.Shri.S.A.Pradhan for respondent No.1 & 2,

    None for respondent No.3 & 4.

    O R A L O R D E R

    Per Shri.S.G.Deshmukh Hon`ble Presiding Judicial Member.


    1. The present appeal is filed by United India Insurance Co.Ltd. against the judgment and order dated 25.07.2007 in complaint case No. 48/2007 passed by District Consumer Forum, Jalgaon.



    2. Respondent No.1 & 2/Org.Complainants case before the Forum is that, respondent No.1/complainant No.1 is a member of respondent No.3 & 4. It is contended that respondent No.1 had obtained Group Mediclaim policy for entire family through respondent No.3 & 4 from present appellant. It is contended that said group mediclaim policy was for the period 30.06.2005 to 29.06.2006 thereafter for the period 30.06.2006 to 29.06.2007. It is contended that respondent No.2 had some problem on 4.7.2006 and thus he was admitted in Indo-American Cardiovascular Centre, Jalgaon. It is contended that he was discharged from said institution on 7.7.2006 after taking treatment. He was admitted in the said institution for the period from 4.7.06 to 7.7.2006. It is contended that respondent No.1 had intimated respondent No.3 about hospitalisation and treatment taken by him. Accordingly he had given application on 4.7.2006 before respondent No.3 & 4 for submitting the same to present appellant. It is contended that respondent No.3 & 4 accordingly gave acknowledgement cum receipt about the claim form and documents. It is contended that the claim was not settled. Complainant filed applications dated 17.08.2006 thereafter 9.11.06, 30.11.2006, 13.12.2006, 24.01.2007 to respondent No.3 & 4. As the claim was not settled he approached the Forum by filing complaint.


    3. Forum issued notices to the respondents. Present appellant did not appear before the Forum. Respondent No.3 & 4 appeared before the Forum and resisted the claim. Respondent No.3 & 4 are not at dispute that policy of appellant was given through them. It is contended that the claim is to be settled by appellant only.

    4. The Forum below proceeded exparte against appellant and directed appellant to pay Rs.27,300/- with interest @ 6%. Forum also directed appellant to pay Rs.1000/- towards cost. Forum exonerated respondent No.3 & 4.

    5. Being aggrieved by the said judgment and order passed by the District Forum,Jalgaon, United India Insurance Co.Ltd. came in appeal.


    6. Notices were issued to the respondents. Learned counsel Shri.S.V.Kulkarni appeared on behalf of appellant whereas learned counsel Shri.S.A.Pradhan appeared on behalf of respondent No.1 & 2.. None appeared on behalf of respondent No.3 & 4. We heard both the counsels. We perused the papers and gave our anxious thoughts to the arguments advanced by both the counsels. Learned counsel Shri.S.V.Kulkarni submitted that notice sent by Forum was not served to the present appellant. Thus no opportunity was given to the appellant to contest the same. There is nothing on record to show that the claim was preferred and received by them. Learned counsel also submitted that respondent No.3 & 4 are also silent about forwarding the claim to the present appellant. We are of the view that present appellant is to be given an opportunity to file their written statement. Judgment and order is required to be quashed and set aside. We pass the following order.

    O R D E R
    1. Appeal is allowed.

    2. The impugned judgment and order passed by the Forum is hereby quashed and set aside and matter is remanded back to the Forum. Forum is to give opportunity to the party and to decide afresh. Forum is expected to dispose of the matter as early as possible.

    3. Parties to appear before the Forum on 30.03.2010.

    4. No order as to cost.

    5. Pronounced and dictated in the open court.

    6. Copies of the judgment be issued to both the parties.

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