100.

NO: 189/8.6.2009

Decided on:09.12.2009


Satish Kumar s/o Itwar Singh r/o Vill. Bassi Billu Di, Post Office: Adamwal, Tehsil and Distt.Hoshiarpur.


......... Complainant

versus


1.

United India Insurance Co. Ltd., Morinda, District Ropar, through its Branch Manager.
2.

United India Insurance Company, Regd.& Head Office : 24-Whites Road, Chennai, through its Regional Manager-60014.
3.

Sumir Anand,N-25, Razori Garden, New Delhi, at present c/o Rajiv Singla s/o Sant Ram Singla, 105 Ward No. 4, Kurali, Distt. Roop Nagar.


............ Opposite Parties


Complaint u/S 12 of the Consumer Protection Act, 1986.


Quorum: Sh. P.D. Goel, President,

Sh. A.S. Jauhar, Member.


Present: Miss Gitika Sood, Counsel for the complainant.

Sh. Brij Thakur, Counsel for opp.parties No. 1 and 2.

OP No. 3 already ex-parte.


PER P.D. GOEL, PRESIDENT:


1.

The complainant namely Satish Kumar has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Stated briefly, the facts of the case are that Sumir Anand – OP No. 3 was the owner of Sakoda Car bearing registration No. DL-3 CV 1740. That OP No. 3 got the said car comprehensively insured from OP No. 1 on 19.3.2008 for the period 19.3.2008 to 18.3.2009.
2.

It is the case of the complainant that he purchased the said Sakoda Car bearing registration No. DL-3-CV-1740 along with insurance policy from OP No. 3 and intimation regarding the transfer of policy was also given to OP No. 1 on 17.10.2008. That the registration of the vehicle was transferred in the name of the complainant on 7.10.2008.
3.

It is the allegation of the complainant that the said car met with an accident on 25.2.2009 near Parbhat Chowk, Hoshiarpur. The complainant took the vehicle to Krishna Auto Sale for the purpose of repair. The intimation regarding the damage of car was given to OP No.1. The vehicle was inspected by the authorized surveyor of OP No.1.
4.

It is further the case of the complainant that he paid Rs. 1,37,586.10 vide invoice dated 4.4.2009 and Rs. 29,387/- towards labour charges and Rs. 5,000/- towards toe and in this way, he spent Rs. 1,71,973.10 on the repair of the vehicle. The complainant submitted his claim with OP No.1. However, the claim was repudiated on the ground that the insurance policy has not been transferred in the name of the complainant, as such, he has no insurable interest vide letter dated 12.5.2009. The repudiation of the claim is stated to be illegal, hence this complaint.
5.

The opposite parties No. 1 and 2 filed the joint reply. The preliminary objections vis-a-vis maintainability, jurisdiction, estoppel and non-joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is replied that OP No. 3 was the owner of the car bearing registration No. DL-3-CV-1740 and the same was insured with the replying opposite parties. That the RC of the car was transferred in the name of the complainant on 7.10.2008 by the Registering Authority, Zira vide No. 2184. It is denied that the complainant ever gave intimation to OP No. 1 regarding the purchase of the car or applied for transfer of the insurance policy. That on the date of accident, the insurance policy was not in the name of the complainant, hence he had no insurable interest at the time of accident. The complainant is not the consumer of opposite parties No. 1 and 2. It is further replied that the insurance policy cannot be purchased along with the car, as alleged in the complaint.
6.

It is further replied that as per the provision of the Motor Vehicles Act, in case of any sale of the motor vehicle, having valid insurance , the purchaser has to apply to the Insurance Company for transfer of the insurance and requisite transfer fee is to be deposited along with the application. In this case, the complainant never applied to the replying opposite parties for the transfer of the insurance after the purchase of the car nor deposited the requisite fee.
7.

It is admitted that the car of the complainant met with an accident on 25.9.2009 near Parbhat Chowk, Hoshiarpur and intimation regarding the said accident was given to the Insuance Company. The vehicle was surveyed by the independent government surveyor. The claim of the complainant was repudiated on the ground of insurable interest. It is denied that in the accident the car suffered damage to the tune of Rs. 1,71,973.10, as alleged by the complainant. It is further replied that Sh. Jyoti Parkash, independent government approved surveyor was deputed to submit his report regarding damage to the car, who submitted his report dated 27.2.2009, and thereafter, Sh. M.L. Mehta was deputed to submit his final survey report and as per his report dated 25.3.2009, the insured vehicle suffered damage to the tune of Rs. 86,191.56. However, it is admitted that at the time of accident the complainant was the registered owner of the said vehicle.
8.

OP No. 3 was proceeded against ex-parte on 24.6.2009.
9.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, copy of RC – Mark C-2, repudiation letter – Mark C-3, letter dated 17.10.2008 – Mark C-4, bill – Mark C-5 (2 pages), workshop order – Mark C-6, insurance cover note – Mark C-7, DL of Vijay Kumar – Mark C-8, copy of retail invoice of Krishna Auto Sales – Mark C-9 (2 sheets), receipt – Mark C-10 and closed the evidence.
10.

In rebuttal, the opposite parties No. 1 and 2 tendered in evidence Survey Report dated 25.3.2009 – Ex. OP-1, copy of the RC – Mark OP-2, affidavit of S.K. Aggarwal – Ex. OP-3, affidavit of M.L. Mehta – Ex. OP-4, survey report dated 27.2.2009 – Ex. OP-5 and closed the evidence on behalf of opposite parties No. 1 and 2.
11.

The learned counsel for the complainant and opposite parties No. 1 and 2 filed written arguments. We have gone through the written submissions and record of the file minutely.
12.

The case of the complainant is that he purchased the Car bearing registration No. DL-3-CV-1740 along with insurance policy from OP No. 3-Sumir Anand, and intimation regarding the transfer of policy was also given to OP No. 1-United India Insurance Co. Ltd. on 17.10.2008. . It is the allegation of the complainant that the said car met with an accident on 25.2.2009 at Hoshiarpur. The complainant spent Rs. 1,71,973.10 on the repair of the vehicle. The Insurance Company repudiated the claim on the ground that the insurance policy has not been transferred in the name of the complainant, as such, he has no insurable interest . The OP No.1,2- Insurance Company raised the plea that OP No. 3 was the owner of the car bearing registration No. DL-3-CV-1740 , which was insured with the replying opposite parties. That the RC of the car was transferred in the name of the complainant on 7.10.2008 . That on the date of accident, the insurance policy was not in the name of the complainant, hence, he had no insurable interest at the time of accident. However, it is admitted that the car of the complainant met with an accident on 25.9.2009 near Parbhat Chowk, Hoshiarpur and intimation regarding the said accident was given to the Insurance Company. It is denied that the car suffered damage to the tune of Rs. 1,71,973.10 in the accident.The surveyor appointed by the Insurance Company had assessed the loss to the tune of Rs. 86,191.56.
13.

The only point which calls determination from this Court is whether on the date of accident, the complainant had insurable interest ? The answer to this is in the affirmative.
14.

The complainant has produced on record repudiation letter Mark C-3 , wherein it has been stated that the vehicle no. DL3CV-1740 is insured in the name of Sumir Anand. The RC of the vehicle has been transferred in the name of Satish Kumar-complainant but the insurance policy had not been transferred in his name, so, he has no insurable interest.
15.

It is an admitted fact that the RC of the vehicle had been transferred in the name of the complainant on 7.10.2008. Admittedly, the accident took place on 25.2.2009. The copy of RC Mark C-2 is on the record and its perusal also makes it clear that the vehicle no. DL3CV-1740 has been transferred in the name of the complainant .
16.

India Motor Tariff Regulations GR 10 in 1994 under section 157 of the Motor Vehicles Act, 1988 is clear that the transfer of the insurance policy is automatic on the transfer of the ownership of the vehicle. . It is an admitted fact that on the date of accident, the vehicle bearing registration no. DL3CV-1740 had been transferred in the name of the complainant , therefore, in view of GR 10 of the India Motor Tariff Regulations , referred to above, it is held that transfer of the insurance is automatic on the transfer of the ownership of the vehicle. Therefore, the repudiation of the claim by the Insurance Company on the ground that though the said vehicle had been transferred in the name of the complainant but still he had no insurable interest as the insurance policy had not been transferred in his name is illegal and against the law. Reliance placed on 2009(3)CLT,180 (PB-SCDRC), Kulwant Singh vs. United India Insurance Co. Ltd. & another and 2009(1) CPC 482 (NC), Oriental Insurance Co. Ltd. Versus Om Parkash Gupta & Anr.
17.

The complainant has produced on record the retail invoice of Krishna Auto Sales, Distt. Kapurthala – Mark C-9 and the receipt of Rs. 1,70,000.00 - Mark C-10 on account of repair and labour charges. Admittedly, the complainant has not produced on record the receipt of Rs. 5,000/- towards toe charges, thus he is not entitled to the amount of Rs. 5,000/- as toe charges. The Insurance Company has placed on record the survey report of M.L.Mehta - Ex.OP-1, qua which he assessed the loss to the tune of Rs.86,191-56 p. Since the complainant has produced on record the receipt – Mark C-10 qua which he has paid the amount of Rs. 1,70,000/- to Krishna Auto Sales, Kapurthala, on account of repair of the vehicle, as such, the report of the Surveyor – Ex. OP-1 stands rebutted.
18.

As a result of the above discussion, it is held that the opposite parties No. 1 and 2 were not justified to repudiate the claim of the complainant-consumer, which amounts to deficiency in service, with the result, the complaint of the complainant is accepted and the opposite parties No. 1 and 2 are directed to make the payment of Rs. 1,70,000/- to the complainant with interest @ 9% per annum from the date of filing of the complaint i.e., 8.6.2009 till payment. The opposite parties No. 1 and 2 are further directed to pay Rs. 1,000/- as costs of litigation. Compliance of the order be made within one month from the date of receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Case No. : 125/2009

Date of Inst. : 23/09/2009

Date of decision : 17/12/2009



Jaskaran Bawa S/o Sadhu Ram R/o Village Gobindpur Tehsil Nawanshahr Distt. SBS Nagar. ….Complainant.

Versus

United India Insurance Company Limited, through its Branch Manager Branch Office Banga Road Nawanshahr.

….Respondent

Complaint under the provisions of Consumer Protection Act, 1986

BEFORE: SH. S.M.S.MAHAL, PRESIDENT

SH. SUKHDEV SINGH, MEMBER

Present: Sh. Ravinder Singh, advocate, counsel for the complainant.

Sh. P.K. Dhir, advocate, counsel for the Ops.

S.M.S.MAHAL, PRESIDENT

Jaskaran Bawa (hereinafter called as complainant), has filed this complaint against the United India Insurance Company Limited, through its Branch Manager Branch Office Banga Road Nawanshahr (hereinafter called as OP) for issuance of a direction to the OP to pay the claim an amount of Rs.1, 60,000/- with interest along with Rs.25,000/- as compensation on account of deficiency in service.

2. The brief admitted facts of this complaint are that the complainant is the consumer of the OP as he had got his vehicle bearing registered no. PB-10-Z- 8951 insured from the OP for Rs.1,60,000/- for the period from 01/08/2007 to 31/07/2008. The vehicle of the complainant had met with an accident on 24/07/2008 and a claim was lodged with the OP. Despite repeated requests of the complainant, the OP had failed to sanction the claim. Hence this complaint.

3. In the written version filed by the Op, it was contended that on the submission of the claim by the complainant Jaspreet Singh Malik Surveyor and loss assessor was deputed for verification of the registration certificate of the vehicle in question and in his report he had submitted chassis no. and engine no. as 050890 but in the claim form submitted by the complainant, chassis no. & engine no. was recorded as 05089. The complainant was accordingly issued letters dated 02/09/2009,13/08/2009 and 04/06/2009 for getting the correction in the registration certificate affected from R.T.O. Ludhiana but he had failed to do so. Thus, the claim of the complainant had been repudiated. Further that Mr. Arun Kumar & Company were deputed to assess the loss and in the report the surveyor had assessed the loss of the vehicle to the tune of Rs.37,520/-. The complainant however had accepted the proposal of the Ops and gave his consent to accept Rs.40,000/- subject to terms and conditions and exception as per policy. The complainant however did not get the Engine no. & chassis no. corrected which amount to violation of the terms and conditions of the policy. A prayer for dismissal of the complaint was accordingly made.

4. Both the parties have placed on record their respective evidence in the shape of affidavits and other documents.

5. We have considered the oral submissions advanced by the Ld. counsel for the parties and carefully scrutinized the evidence on record.

6. From the written version filed by the OP, it is evident that the claim of the complainant had been repudiated on the ground that chassis no. & engine no. given in the report of RTA Ludhiana aid not tally with the engine/ chassis no. given in the registration certificate. The perusal of the copy of the registration certificate Ex R-9 produced by Op itself indicates that the chassis no. of the vehicle was recorded as 05089 and the engine no. also as 05089 . The insurance cover note Ex R-11 also indicate the same engine/chassis no. i.e. V.B.05089 and in the claim form Ex R-2 also the engine no./ chassis no. was recorded as 5089. Since the OP had issued the insurance policy on the basis of engine no and chassis no. recorded in the registration certificate of the vehicle, there was no question of getting this numbers verified from the registering authority after the submission of the claim by the complainant. If at all there was any doubt in this respect, the insurance agent or the officials of the OP should have got the engine/chassis no. of the vehicle verified at the time of issuance of the insurance cover note or immediately thereafter but the OP did prefer to do so.

7. The perusal of Ex R-7 the application submitted by Jaspreet Singh Malik for verification of the RC book of the insured vehicle indicates that mistake had been committed by him in giving the chassis no. and engine no. as 050890 instead of 05089 given in the insurance cover note as well as the registration certificate and the claim form submitted by the complainant. The alleged report of the registering authority Ludhiana Ex R-8 does not lead any where because the Performa on which words ‘attested’ are written and seal of the registered authority is fixed is of Jaspreet Singh Malik addressed to the registering authority. From the mere word attested it can not be inferred that the verification was conducted by the registering authority from the record. It appears to have been issued by the registering authority with eyes closed. Therefore it has to be out rightly rejected. The repudiation of the claim by the OP on the basis of this report is rendered illegal which amounts to deficiency in service on the part of the OP towards the complainant.

8. Otherwise also, the Op itself alleged that the loss assessors appointed by it, had assessed the loss of Rs. 37,520/- and the complainant had given his consent to accept Rs.40,000/- in full and final satisfaction of his claim. The perusal of Ex R-12 the loss assessment report dated 10/08/2009 indicates that the consent for Rs.40,000/- was given by the complainant for settlement of the claim in lump slum with the condition that he will retain the damaged vehicle with him and the OP thus can not escape the liability to this extent .

9. As a consequence of the foregoing reasons, the complaint is allowed with a direction to the OP to sanction and disburse the claim of the complainant to the tune of Rs.40,000/- towards full and final settlement, with liberty to the complainant to keep the damaged vehicle with him.

10. The OP is also directed to pay a sum of Rs.10,000/- to the complainant towards compensation regarding mental as well as physical and monetary loss on account of repudiation of his claim and litigation cost.

11. The compliance of this order shall be done within one month from the receipt of copy of this order.

11. Copies of this order be sent to the parties as per rules.

12. File be consigned to the record room.

Complaint No. 421/7.7.2008
Date of order 3.12.2009.
Shapinder Kaur aged 51 years widow of Sh. Sharanbir Singh resident of 1378, Sukhram Nagar, Ludhiana.

At present resident of 12, Panchsheel Vihar, Barewal Road, near magnet Resort, Ludhiana.
(Complainant)
Vs.
1. United India Insurance Company Ltd. 151-A, Industrial Area A, Cheema Chowk, Ludhiana.

IInd. Address: 24, Whites Road, Chennai-600014

(Opposite parties)

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

Quorum:
Sh. T.N. Vaidya, President.

Smt. Priti Malhotra, Member.
Present:
Sh. S.K. Uppal Advocate for the complainant.

Sh. D.R. Rampal Advocate for opposite party.
O R D E R

T.N. VAIDYA, PRESIDENT:

1. Sh. Sharanbir Singh husband of the complainant had taken personal accident policy no.201002/42/05/01/00000486 for Rs.10,00,000/-(Rs. Ten lacs only) effective from 23.3.2006 to 22.3.2007, from the opposite party. The policy holder Sh.Sharanbir Singh died in a car accident on 29.8.2006 qua which intimation was given to the opposite party. But opposite parties were offering nominal amount against the risk covered of Rs.10,00,000/-, hence refused to accept the same and took up the mater before the Insurance Ombudsman, Chandigarh, who decided the matter on 30.3.2007 and opposite party paid a sum of Rs.6,48,488/- vide cheque dated 13.4.2007. Though complainant was entitled for Rs.10,00,000/- as the insurance coverage was of Rs.10,00,000/- and parties were bound by terms and conditions of the cover note of the insurance policy issued by the opposite party. But by not paying the entire amount and by paying less amount to the tune of Rs. 3,95,000/- opposite parties are claimed in this complaint under section 12 of the Consumer Protection Act, 1986 to be guilty of deficiency in service. In this complaint under section 12 of the Consumer Protection Act, 1986, has claimed this amount with Rs.43,000/- as damages with 12% interest per annum.

2. Complaint is contested by the opposite parties on averments that complaint is barred by resjudicata. Because case of the complainant stand adjudicated by Insurance Ombudsman, Chandigarh vide order dated 30.3.2007. He assessed income of the deceased as given in the income tax returns which should be the basis for settling the claim. He required Insurance Company to work out the annual average assessed income on the basis of last three years returns of the policy holder before his death. Insurance Company assessed payable amount and worked out the same to be Rs.6,48,488/-. Amount was offered to the complainant in full and final settlement, which was accepted by the complainant as full and final settlement of her claim. So, now by act and conduct is estopped from filing this complaint which is also barred. Accused complainant not coming to the Fora with clean hands and that there is no deficiency in service on their part. They have denied their liability to pay Rs.3,95,000/- to the complainant.

3. Parties led their evidence by way of affidavits and documents in support of their respective contentions.

4. We have heard the arguments addressed by the ld. counsel for the parties, gone through file, scanned the documents and other material on record.

5. Not in dispute that personal accident policy in question was effective from 23.3.2006 to 22.3.2007. During continuance of the policy, its holder Sh. Sharanbir Singh died on 29.8.2006 in a car accident. This fact was affirmed and reported to be true by the investigator Sh. H.C. Kalia in his report Ex.R.6 dated 10.11.2006. Pertinent to note that services of Sh. H.C. Kalia as investigator were obtained by the opposite party after lodging of the claim under the policy by the complainant. However, when claim of the complainant was not settled, she approached the Insurance Ombudsman, who in terms of the policy conditions vide order 30.3.2007 communicated to her vide annexure 2 dated 2.4.2007 directed the opposite party to settle the claim basing income of the insured as assessed through his income tax returns. Insurer i.e. opposite party was directed to work out the annual average assessed income on the basis of his returns of the last three years before death of the insured. Payable admissible claim along with accumulative bonus was ordered to be paid within seven days of the receipt of the policy and the consent letter from the claimant. It was in pursuance of the aforesaid order of the Insurance Ombudsman that opposite party worked out income of the policy holder as under:

Income for the year 2003-04 as per return= 1,19, 806/-

Income for the year 2004-05 as per return= 1,19,912/-

Income for the year 2005-06 as per return= 1,14,004/-

Total: 3,53,722/-

6. After adding bonus, a sum of Rs.6,48,488/- was found payable as mentioned in claim note Ex.R.17 dated 4.4.2007. This proposal of opposite party was approved by the competent authority vide communication Ex.R.18 dated 11.4.2007 and R19 dated 12.4.2007. Amount so calculated was paid vide receipt Ex.R.2 dated 12.4.2007 to the claimant by the opposite party. Opposite party while paying the amount obtained consent letter Ex.R.10 dated 30.3.2007 from the complainant. Consent letter Ex. R.10 is addressed to the Manager of the opposite party and it runs as under:

“As per the settlement in front of “Ombudsman” on Dt. 30.3.2007 at “Circuit House” Ludhiana, I agree to receive my claim as settled by Ombudsman (As per Income Tax Return + cumulative Bonus) As per their decision, I am also submitting original policy bond to you.

Kindly receive the above letter as per above notification.”



7. So, appears from this communication Ex. R.10 dated 30.3.2007 that along with acceptance of the amount as settled by Ombudsman, on the basis of Income Tax Return, handed over original policy to the opposite party. This was done on 30.3.2007.

8. It was in the aforesaid back drop, argued on behalf of the opposite party that complainant had agreed to abide by verdict of the Insurance Ombudsman and accepted the amount as full and final settlement of the claim, so, complaint is not maintainable. However, at this stage, we may like to point that this Fora vide order dated 8.7.2008 had dismissed the complaint as not maintainable after matter having been decided by the Insurance Ombudsman. But that order was reversed in appeal by the Hon’ble State Commission vide its order dated 6.3.2009 holding that complaint before the Fora is maintainable, despite order of the Insurance Ombudsman. In the light thereof, we feel that there is no much scope for the opposite party to re-agitate such point.

9. Now adverting to the question whether acceptance of the amount assessed by the opposite party after direction/order of the Insurance Ombudsman, would amount to final acceptance, quitting Insurance Company from any further liability. Because, accidental insurance coverage obtained by husband of the complainant was for Rs.10,00,000/- and undoubtedly had died in a vehicular accident, giving rise to the claim under the policy.

10. On behalf of the complainant, it is pointed that in original policy issued by the opposite party to husband of the complainant, no condition of income was appended for making payment in case of accidental death and any such condition has been later on unilaterally put by the opposite party by affixing a stamp to that effect on copy of the policy retained by them and this they did to defeat claim of the complainant made after accidental death of the policy holder. Annexure 3 is the original copy of the accidental insurance policy in question, obtained by the complainant, on 4.7.2008 from office of the opposite party. This original policy annexure 3 does not contain any condition or stipulation by way of separate stamped endorsement on this printed policy. However, on behalf of opposite party it was argued that stamped condition on printed policy is affixed on the original and not on the duplicate copy retained in the office. Whereas original policy so issued to the complainant contains stamped condition of the policy and complainant has intentionally withheld the same from the Fora. As such, when the complainant obtained duplicate copy of the Insurance policy on 4.7.2008 it had no stamp as original/duplicate issued earlier bear no such stamp.

11. The dispute as such corners around qua stamped condition recorded on the policy, copy of which is Ex.R.22. Stamped condition mentioned in schedule appended to the policy reads as under:

“Forming part of the policy in the even of claim it is hereby warranted that the Capital Sum insured under the policy will be restricted to as under:

1. For table IV-24 months proven Gainful income or C.S.I. which ever is less,

2. For Table 1 to IV (combined 60 months proven Gainful income or capital sums insured, whichever is less.”



12. It is the aforesaid stamped wording of schedule of the policy which was taken note by the Insurance Ombudsman and consequently vide order annexure 2 dated 30.3.2007 ordered opposite party to work out annual average assessed income of the insured, on the basis of returns of the last three years before death. Then payment of admissible claim was ordered to be made along with cumulative bonus. But grouse of the complainant is that in the policy or schedule supplied to her husband no such condition was ever incorporated and this condition was subsequently stamped by the opposite party with intention to defeat her legitimate claim. We have already recorded that in duplicate policy annexure 3 and its schedule no stamped condition is mentioned. In other words, in the original office copy of the policy, it does not contain any such stamp.

13. Now the question is whether such condition was mentioned by way of stamping on the original policy issued to policy holder by the opposite party. Had it been so, investigator Sh. H.C. Kalia in his report Ex.R.1 would have recorded and mentioned or high lighted such aspect. Rather, he is silent on such important condition of the policy in his report Ex.R.6. So, it means, in original policy so issued by the opposite party to the policy holder, there was no stamped condition as is represented by the opposite party to defeat the claim of the complainant. The complainant vide communication dated 30.3.2007 Ex.R.10 after decision of the Insurance Ombudsman, furnished original policy to the opposite party to settle her claim. She had also mentioned in letter Ex.R.23 dated 8.3.2007 addressed to the opposite party that original policy was handed over by her to the Investigating office Sh. H.C. Kalia. But Mr. Kalia in his report Ex.R.6 is silent about such condition of the policy. Meaning thereby that no such condition was appended to the policy qua income of the policy holder, to restrict the claim in case of accidental death of the policy holder, in terms of his annual income. This condition was appended later on when the dispute arose . Therefore, the policy has to be taken for Rs.10,00,000/- in case of accidental death, without any condition. Consequently, there is nothing on the record that the complainant received partial amount of Rs.6,48,488/- as full and final amount of the claim and forego her right to have rest of the amount under the policy from the opposite party.

14. In these circumstances, we are of the clear view that opposite party was deficient in rendering its services to the complainant by not paying full amount on accidental death of the insured, to the complainant. Hence, complainant is held entitled for Rs.3,51,512/-balance amount out of Rs.10,00,000/- of the insured amount along with cumulative bonus and opposite party accordingly ordered to pay the same along with compensation and litigation cost compositely assessed at Rs.20,000/-(Rs. Twenty Thousands only). Compliance of the order be made within 45 days of the receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record.

Complaint No:19 of 2009.

Instituted On: 19.01.2009.

Date of Service: 05.02.2009.

Decided On: 18.12.2009.


Santokh Singh Dhillon son of Hazura Singh, resident of Mela Singh Wali Gali, G.T.Road, Moga.

Complainant.

Versus
United India Insurance Company Limited, 75-Shahid Bhagat Singh Market, Moga, through its Manager.

Opposite Party.
Complaint under section 12 of The

Consumer Protection Act, 1986.
Quorum: Sh.J.S.Chawla, President.

Smt.Bhupinder Kaur, Member.

Sh.Jit Singh Mallah, Member.
Present: Sh.Shivcharan Singh Gill, Adv.counsel for complainant.

Sh.Jaswinder Singh, Advocate, counsel for OP.

(Bhupinder Kaur, Member)

Sh.Santokh Singh complainant has filed the present complaint under section 12 of The Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against United India Insurance Company Limited, 75-Shahid Bhagat Singh Market, Moga, through its Manager-opposite party (herein-after referred to as ‘Insurance Company’) directing them to pay compensation of Rs.10 lacs i.e. Rs.6 lacs for the repair of the complex and Rs.4 lacs for harassment and mental tension suffered by him.

2. Briefly stated, submissions of the complainant is that he is NRI and is owner of Dhillon Complex, situated at G.T.Road, Moga alongwith Pritam Kaur Dhillon, Harjit Singh Dhillon and Sarabjit Kaur Dhillon. That the complainant is the attorney of other co-sharers. That the aforesaid complex was insured with the OP-Insurance Company vide policy no. 201200/11/04/11/00000384 valid for the period w.e.f. 31.3.2005 to 30.3.2011 and paid the premium of Rs.19285/- vide cheque no.432594 dated 28.3.2005 and on the policy it was written ‘All perils insured’ and at the time of insurance, OP-Insurance Company assured the complainant that in case of any type of loss, they will provide the service at their door step. That in the month of September 2006, due to heavy rain falls in Punjab and surrounding areas, the said complex was damaged due to subsidence. In this regard, the complainant informed the OP-Insurance Company on 7.9.2006. That the OP-Insurance Company deputed their surveyors to assess the loss. That the complainant fully cooperated with the surveyors and extended his maximum help regarding any type of query, but the surveyor U.S.Kohli always led him in trouble by telling him to collect different kind of documents which was not in his reach. That he was asked to get the weather report of September 2006 from Meteorological Department Delhi. But this was not at all his duty. However, to collect the weather report, the complainant incurred Rs.5000/- daily for three days and Rs.3100/- deposited by him in the concerned department. That the Meteorological Department Delhi verified whole the version given by the complainant to the OP-Insurance Company. That the surveyors and manager/ officers of the OP-Insurance Company put every new hurdles in front of complainant rather to help him and he was bent upon to come personally from England for the settlement of the claim and after bearing all types of inconvenience and mental stress, the complainant succeeded to submit every sought of documents required by the OP-Insurance Company, but till date his claim has not been settled after repeated request and representations given in writing to them. That one day suddenly Ashok Kumar Bansal, Surveyor of the OP-Insurance Company asked him to produce more documents i.e. claim form duly completed and signed by the insured vide letter dated 20.2.2007, though this document was submitted by him at the very initial stage to the OP-Insurance Company. Inspite of the fact, the complainant has already submitted all the documents required by the OP-Insurance Company and their surveyor, the complainant did not get his legal and valid claim amount till date. That to repair the building which was damaged due to the heavy rain falls, the complainant has to spend Rs.527289/-. That the complainant visited the office of the OP-Insurance Company for the settlement of his claim, but the OP-Insurance Company did not give any satisfactory reply to him and tried to delay the claim on the one pretext or the other. That the act and conduct of the OP-Insurance had caused great inconvenience, harassment and mental agony to them for which he has claimed compensation beside costs of litigation. Hence the present complaint.

3. Notice of the complaint was given to the OP-Insurance Company, who appeared through Sh.Jaswinder Singh Advocate and filed written statement contesting the same. They took up preliminary objections that the complaint is not maintainable; that the complaint is absolutely false, frivolous and baseless and has been filed only to harass and blackmail the OP-Insurance Company. It was averred that on receiving the information on 7.9.2006 and finally the estimate of loss on 24.10.2006 from the complainant regarding the alleged loss, they immediately deputed M/s.Kohli Surveyors Moga to survey and investigate the loss; that the said surveyor required some documents from the complainant vide its letter dated 25.10.2006, but the complainant did not reply the same. Again the surveyor wrote letter dated 7.11.2006 reminding the complainant to submit the necessary documents. However, in response of that letter of surveyor, the complainant submitted some documents, but those documents were not sufficient for assessing the exact position of alleged loss. On 15.12.2007 again a letter was sent to the complainant and requested for submission of documents, but to no effect. M/s.Kohli Surveyors wrote another letter dated 17.1.2007 in which it was appraised and impressed upon the complainant to submit he documents and reminded that Mr.Ashok Kumar Bansal, Joint Surveyors also visited the place of loss and requested to submit the documents. Again on 20.2.2007 a registered letter was sent to the complainant by Ashok Kumar Bansal, the joint surveyor for submission of documents. Only on 3.3.2007 some documents were submitted by the complainant and thereafter both the surveyors gave their joint report dated 8.5.2007, the detail of which is given in para no. 3 (i) to (x) of the preliminary objections. That from the facts given in the preliminary objections, it is clear that the complaint is false and frivolous and the OP-Insurance Company has not been deficient in providing service to the complainant and had promptly attended to the claim of the complainant as is evident from the correspondence, but it was found that the claim of the complainant was not tenable as per the terms and conditions of the policy, therefore, the same was repudiated. On merits, the OP-Insurance Company took up the same and similar pleas as taken by them in preliminary objections. All other allegations contained in the complaint were specifically denied being wrong and incorrect. Hence it was prayed that the complaint filed by the complainant has no merit and it deserves dismissal.

4. In order to prove his case, the complainant tendered in evidence his affidavit Ex.A1, copy of notice Ex.A2, copy of snap Ex.A3, copy of letter Ex.A4, copies of sale deeds Ex.A5 to Ex.A8, copy of power of attorney Ex.A9, copy of policy Ex.A10, copy of receipt Ex.A11, copies of letters Ex.A12 to Ex.A14, copy of acknowledgement Ex.A15, copies of reports Ex.A16 to Ex.A17, copy of letter Ex.A18, copies of reports Ex.A19 to Ex.A22, copy of survey report Ex.A23, copy of site plan Ex.A24, copy of letter Ex.A25, copy of insurance policy Ex.A26, copy of letter Ex.A27, copy of certificate Ex.A28, copies of receipts Ex.A29, Ex.A30, copies of bills Ex.A31 to Ex.A43, copy of estimate Ex.A44, copies of affidavits Ex.A45, Ex.A46, copies of newspaper cuttings Ex.A47 to Ex.A50 and closed his evidence.

5. To rebut the evidence of the complainant, the OP-Insurance Company tendered in evidence affidavit of Sh.M.R.Dhingra Divisional Manager Ex.R1, copy of cover note Ex.R2, copy of terms and conditions Ex.R3, copy of policy Ex.R4, copy of claim form Ex.R5 copy of details Ex.R6, copy of letter Ex.R7, copies of surveyor letters Ex.R8 to Ex.R11, copies of letters Ex.R12 to Ex.R20, copy of voucher Ex.R21, copy of report Ex.R22, copies of photographs Ex.R23 to Ex.R46, copy of book pages Ex.R47, copy of schedule Ex.R48, copy of valuation certificate Ex.R49, copy of policy particulars Ex.R50, copy of certificate Ex.R51, copy of estimate Ex.R52, copy of letter Ex.R53 to Ex.R55, copies of power of attorney Ex.R56, Ex.R57 and closed their evidence.

6. We have heard the arguments of Sh.Shiv Charan Singh Gill ld. counsel for the complainant and Sh.Jaswinder Singh ld.counsel for the OP-Insurance Company and have very carefully perused the evidence on the file.

7. Sh.Shiv Charan Singh Gill ld.counsel for the complainant has mainly argued that due to heavy rain falls to above said complex was damaged. The complainant has informed the OPs, that after the OPs deputed their surveyor to assess the loss, he was asked to get the weather report of September, 2006. The ld.counsel argued the complainant succeeded to submit every sort of document required by the OPs. To repair the building due to heavy rain, the complainant has to spend Rs. 527289/- for repairing. The complainant has requested the OPs to admit his rightful claim, but the OPs has rejected the claim vide letter dated 21.06.2007 with false allegations. The complainant has served notice dated 15.06.2007 to the OPs to pay Rs.10 lacs for damage and compensation for harassment and mental tension.

8. In rebuttal, Sh.Jaswinder Singh ld.counsel for the OPs has argued that on receiving the intimation on 7.9.2006 and finally estimate of loss on 24.10.2006 from the complainant regarding the alleged loss, the OPs immediately deputed M/s.Kohli Surveyor to survey and to investigate the loss, he wrote letter dated 25.10.2006 (Ex.R8) have receiving no reply he again wrote another letter dated 7.11.2006 Ex.R9 reminding the complainant to submit the necessary documents. The complainant submitted some documents which were insufficient for assessing the exact position. Then again on 15.12.2007 Ex.R10, letter was sent to the complainant and requested for submission of documents, but no response came up. Mr.Kohli and Mr.Ashok Bansal surveyor jointly visited the place of loss. Both the surveyors gave their joint report dated 8.5.2007 (Ex.R22) the following effect,

1) As per insurance cover the risk to the building is concerned above plinth level. So the loss below plinth level is not covered (Ex.R2).

2) As the second flour was constructed during the year 1998 without strengthening the foundation of the column construction during the year 1994 for two storey building only. So in their opinion the loss have occurred due to weak foundation of the column, which could not bear the additional load of second flour

3) Inspite of our repeated requests, none of the approved drawing was submitted to us for the construction of building during 1994 and 1998.

9. The OPs mainly argued that the said building was not damaged due to rains but due to weak foundation. The complaint is wrong and hence denied. The complaint is false and baseless.

10. We have perused the documents and evidence on the record and have heard counsel for the parties at length. We agree with the submissions of the counsel for the OPs. The complainant has failed to prove on record the documents as to the strength to the foundation of the building. It is proved on record that no such document inspite of request of the OPs was produced. Moreover, the weather report is on for Amritsar area, not Moga (Ex.R54). Either no such documents to prove the strength of the foundation is with the complainant. If such documents are there, they are against the interest of the complainant. Until and unless such basic document is proved on record, the OPs can not be fastened with the liability to make the deficiency in service, if any. It appears from the record that the complainant has not got sanctioned the site plan of the building from Municipal Council, which the surveyors mentioned again and again in Ex.R8 to Ex.R11. In view of the aforesaid facts and circumstances of the case, the OPs-Insurance Company has rightly repudiated the claim of the complainant. Therefore, the complainant has failed to prove that the OPs-Insurance Company has committed any deficiency in service by not making the payment of claimed amount.

11. To prove the aforesaid contention, the OPs-Insurance Company produced in evidence affidavit of Sh.M.R.Dhingra Divisional Manager Ex.R1, copy of cover note Ex.R2, copy of terms and conditions Ex.R3, copy of policy Ex.R4, copies of surveyor letters Ex.R8 to Ex.R11, copy of reminder letter Ex.R17, Ex.R19, Ex.R20, copy of joint survey report Ex.R22, copies of photographs Ex.R23 to Ex.R46, copy of book pages Ex.R47, copy of schedule Ex.R48, copy of policy particulars Ex.R50, copy of estimate Ex.R52, copy of letter Ex.R53, copy of weather report (Amritsar) Ex.R54, copy of letter Ex.R55. On the other hand, no reliance could be placed on the affidavit Ex.A1 and other documents Ex.A2 to Ex.A50.

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

13. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has no merit and the same is dismissed. In view of the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

C.C.No.88/2008

Between:-

M.Jayanarayana Reddy, S/o.M.Rajeshwar Reddy,

Age:49 years, Occ:Business, R/o.H.No.1-1-86/1,

Rajeshnilayam, Ravindranagar, Adilabad. …Complainant.
//AND//

1. Andhra Bank, Rep.by its Manager,

Branch:Adilabad.

2. United India Insurance Company Ltd.,

Rep.by its Divisional Manager,

Divisional Office:4 United India Insurance Co.Ltd.,

2nd floor, Posenette Bhavan, Ramkote, Tilak Road,

Hyderabad – 5000 001.

3. Family Health Plan Ltd., (Impleaded as per orders in I.A.55/09 dt:31.08.09)

Rep.by its Authorized Officer,

Plot No.25, MCH.No.8-2-334, Road No.3,

Azam Colony, Banjara Hills – Hyderabad. …Opp.Parties.




Counsel for Complainant : Mr. A.Amarender Reddy.



Counsel for Opposite Parties : Mr. S.Raja Ram.(OP.1).

Mr. M.Ramana Reddy.(OP.2).

OP.3(Set.Ex-Parte).


QUORUM:-

SRI.P.THIRUPATHI REDDY, M.A., L.L.B. : PRESIDENT.



SRI.G.SRINIVAS, B.COM., L.L.B. : MEMBER.



FRIDAY THE 4th DAY OF DECEMBER 2009.

-:ORDER:-



Order Pronounced by President:-

This complaint is filed under section 12 of C.P. Act 1986.

The brief facts of complaint are as follows:



1. The complainant is the consumer having his S.B. account vide no.ABG-54256 since 20 years and S.B.A/c.No.ABG-250263 since (10) years in Opp.Party No.1 Bank and according to the offer of the Opp.Party No.1 Bank the complainant joined in A.B. Arogyadaan Plan from the date of 1st offer and which is renewed from time to time by the complainant by paying the premium amount through his above accounts. Accordingly as per the terms of the A.B. Arogyadaan plan with the Opp.Party no.2&3, the Opp.Party No.1 Bank paid the premium amount to Opp.Party No.2&3 in the name of complainant and his family members to cover the health of the complainant and his family members. The Opp.Party No.2&3 on receiving the above premium amount through Opp.Party No.1 bank issued the policy under MEDICLAIM INSURANCE for a sum of Rs.1,00,000/- covering the Complainant and his family members. The Policy is being renewed every year since last 10 years, so under AB Arogyadaan scheme, medi claim policy has been issued by the Opp.Party No.3 vide policy no.050400/48/08/41/00000084, valid from 25.06.2008 to 24.06.2009 in the name of complainant which is subsisting on the date of joining the complainant in Hyderabad Kidney & Laproscopic center, at Hyderabad. The complainant after consulting Dr.Jayaram Reddy, M.S.Mch.Urologist, in above hospital for his urine problem on 05.07.2008. The complainant got admitted in above hospital and produced Medi claim policy before the hospital authorities as his health is insured by the are Opp.Parties No.2&3, so the hospital authorities as per the policy issued by the Opp.Parties No.2&3 filed a requisition before the Opp.Party No.2, but the Opp.Party No.2 on receiving the above requisition from hospital authority refused to consider the cashless facility. The complainant as per the advise of Dr.Jayaram Reddy, he admitted as in patient in above hospital on 07.07.2008 and underwent surgical treatment for his urinary problem under Spinal Anesthesia first VIU performed under the supervision of Dr.S.Jayaram Reddy and Dr.G.Sambi Reddy. Complainant regularly approached the Offices of the Opp.Party No.2&3 for payment of above amount to hospital authorities, but neither they paid the amount nor given any response to complainant. Opp.Party No.2&3 are liable and if the Opp.Parties No.1&2 re failed to pay the above amount to the complainant.

The complainant prayed this Forum to direct the Opp.Party No.1 to 3 liable to pay jointly and severally in favour of the complainant.

a). Credit bill an amount of Rs.28,199/-.

b). Rs.50,000/- towards damages.

c). Interest @ 18% p.a. from the date of petition till realization.

d). Cost of the petition and if any other relief deem fit in the interest of justice.



2. The Opp.Party No.1 contested the petition and filed counter. The contents of counter of Opp.Party No.1 is as follows:

In the instant case the Opp.Party No.1 deducted the necessary annual premium on 14.06.2008 to a tune of Rs.1,801/- and the same was debited to the account of Opp.Party No.2 vide advise number 714372, dt:14.06.2008 for and insurance coverage of Rs.1,00,000/- . Thus the premium was well paid in advance by this Opp.Party. Thus there is no lapse or shortfall or deficiency of service on the part of this Bank Opp.Party. The Opp.Party No.1 prayed to dismiss the petition.



The Opp.Party No.2 filed counter. The contents of counter of Opp.Party no.2 is as follows:

It is unaware that the complainant is the consumer having his SB account vide no.ABG-54256, since 20 years and SB Account no.ABG-250263 since 10 years, in Opp.Party No.1 bank. It is denied that the policy was renewed from time to time by the complainant by paying the premium amount through his above account. If so we put the complainant to strict proof of the same with documentary and cogent evidence. It is further denied that the complainant as per the advise of Dr.S.Jairam Reddy, he admitted as inpatient in above hospital on 07.07.2008 and underwent surgical treatment for his urinary problem under spinal anesthesia first VIU performed under the supervision of Dr.S.Jairam Reddy, and Dr.G.Sambi Reddy, M.S.(Gen.Surgery), subsequently daily dressing was done and discharged from the above hospital on 11.07.2008 with an advised to take follow up treatment, for which the hospital authority charged and issued the credit bill of Rs.28,199/- towards medical treatment and medicinal charges incurred on the complainant during in patient period and it is still due on the complainant.

3. Both parties filed Proof Affidavits.

4. On behalf of complainant Ex.A1 to A5 are marked. Ex.B1 to B6 are marked on behalf of Opp.Party.

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

6. Heard both sides. At the first instance the complainant impleaded Good Health Plan Ltd., as Opp.Party No.3. After receiving notices Good Health Plan Ltd., addressed a letter to this forum. The matter is as follows:

We wish to inform you that we are not the Third party Administrators (TPA) for the said policy during the policy period 25.06.2008 to 24.06.2009. We ceased to service the Arogyadaan policy of Andhra Bank from the end of December 2007. We therefore seek your indulgence in not making us party in the said case.



Basing on the above information the complainant filed petition to implead Family Health Plan Ltd., as proper party and Opp.Party No.3 in this case. After due process Family Health Plan Ltd., comes on record. Notices were served to them and Family Health Ltd., remained ex.parte.



7. Heard arguments of complainant and Opp.Parties No.1&2. Perused Ex.A1 to A5 and Ex.B1 to B6.



8. The following are admitted facts:

From a perusal of counter of Opp.Party No.1, it is categorically stated that the Opp.Party No.1 deducted the necessary annual premium on 14.06.2008 to a tune of Rs.1,801/- and the same was debited to the account of Opp.Party No.2 vide advise number 714372, dt:14.06.2008 for and insurance coverage of Rs.1,00,000/-. Thus the premium was well paid in advance by this Opp.Party No.1. Thus there is no lapse or shortfall or deficiency of service on the part of the bank i.e., Opp.Party No.1. After receiving premium the complainant received Ex.A4, AB Arogyadaan card. Its contents are as follows:



AB AROGYADAAN

UHID NO.


FHAU.0000840251

M.Jayanarayana Reddy.




50 years. F.No.


714372

Plan period


25.06.2008 to 24.06.2009 (R1)

Policy No.


050400/48/08/41/00000084



At the same time the complainant received Ex.A5 certificate of Insurance. As seen from Ex.A5 the period of insurance coverage is from 25.06.2008 to 24.06.2009. The contents of Ex.A5 were not denied by Opp.Parties No.1&2.



9. As seen from Ex.A1 the complainant sustained illness during the insurance coverage period and he consulted Dr.Jayaram Reddy, Urologist on 05.07.2008. He prescribed some medicines vide Ex.A2. Thereafter on 07.07.2008 the complainant got admitted as inpatient no.1245/2008. He underwent treatment vide Ex.A2. After taking treatment, the complainant was discharged on 11.07.2008 vide Ex.A2. As seen from Ex.A3 the complainant spent Rs.28,199/- towards Medical expenses.



10. The Ld. Advocate for the Opp.Party No.2 contended that there is nothing on record to show that the complainant gave intimation about admitting himself as inpatient in private Hospital of Dr.Jairam Reddy. The complainant also did not file any paper to show that Opp.Party No.3 i.e., Family Health Plan visited the Hospital verified and checked the concerned prescriptions and pay bills. There is no record to show that Opp.Party No.3 paid the bill amount and intimated to Opp.Party No.2. According to Ld. Advocate for Opp.Party No.2, complainant did not comply the Bank’s requirements and prayed to dismiss the complaint. So far as above submissions are concerned logically the contentions of Opp.Party No.2 appears reasonable but the fact that (Family Health Plan) after receipt of notice did not give reply and remained ex-parte speaks volumes by itself, so under the given circumstances pure technicalities can be ignored in the cases of this nature and the modalities had to be worked out on equitable grounds. In the given circumstances, had Opp.Party No.3 performed his part of job, he would have collected the amount from Opp.Party No.2. It is the Opp.Party no.2 to receive the premium. Whatever may be the procedure adopted, ultimate paying the amount spent on goes with Opp.Party No.2 alone.



11. In the case on hand complainant originally impleaded Good Health Plan Ltd., as Opp.Party No.3, subsequently after hearing the version of Good Health Plan Ltd., complainant withdrew the case against Good Health Plan Ltd., and impleaded Family Health Plan Ltd., as Opp.Party No.3. Thus circumstances appear complainant do not know whom to intimate i.e., either Good Health Plan Ltd., or Family Health Plan Ltd.



12. Thus because of lapse of complainant there is no proper verification and checking of prescriptions and bills, but one thing is sure the fact that complainant suffered ailment and under went treatment cannot be totally ruled out. Viewed in this way the conduct of complainant amounts to case of Non-standard nature. Taking into account all circumstances on record we treat this case as Non-standard case and awarding a sum of Rs.25,000/- will meet the ends of justice. No defective service against Opp.Party No.1 is established. We hold that Opp.Party No.2&3 are jointly and severally liable.



13. In the result the complaint is allowed in part. The complaint against Opp.Party No.1 is dismissed. Opp.Party No.2&3 i.e., United India Insurance Co.Ltd., and Family Health Plan Ltd., are directed to pay a sum of Rs.25,000/- to the complainant within one month from the date of receipt of this order. The amount carries 9% interest p.a. from the date of receipt of this order, failing which the complainant is at liberty to proceed against the Opp.Party No.2&3 U/S.25/27 of C.P.Act 1986. No costs.

C.C.No.34/2009

Between:-

Yenugu Laxma Reddy, S/o.Rajanna,

Age:38 years, Occ:Business and Proprietor of

M/s.Venkateshwara Fertilizers,

APSRTC Complex, Shop.No.1, Nirmal. …Complainant.



//AND//



The Manager,

United India Insurance Company Ltd.,

Rep.by its Branch Manager of

Branch Nirmal, Dist.Adilabad. …Opp.Party.




Counsel for Complainant : Mr. N.Rajeshwar Rao.



Counsel for Opposite Party : Mr. Narendra R.Chowdhari.


QUORUM:-

SRI.P.THIRUPATHI REDDY, M.A., L.L.B. : PRESIDENT.



SRI.G.SRINIVAS, B.COM., L.L.B. : MEMBER.



WEDNESDAY THE 2nd DAY OF DECEMBER 2009.

-:ORDER:-



Order Pronounced by President:-

This complaint is filed under section 12 of C.P. Act 1986.

The brief facts of complaint are as follows:



1. The complainant is proprietor of M/s.Venkateshwara Fertilizers, Nirmal and he has been running the said shop from 02.01.2001 till today and he has got his shop in APSRTC Complex, shop no.1 at Nirmal and he has got his godown in malgi no.1&2, H.No.7-2-83/4 of Suresh Kumar, S/o.Mahadev Seetharam at Bagulwada locality of Nirmal town and the complainant has obtained the Insurance Policy No.050702/11/07/13/00000308 on 26.02.2008 the said policy was to be enforce 13 hours of 26.02.2008 to midnight of 25.02.2009 and during the subsistence of the said policy the fire accident took place in the above said godown on 05.04.2008 at 2330 hours. The stock worth of Rs.13 lakhs was there. The entire stock has been subjected to damage due to fire accident. The information was complained to Police Nirmal Town on 06.04.2008. A case in Cr.No.87 of 2008 under the head fire accident was registered. Police conducted scene of offence Panchanama it was informed to fire authorities Nirmal. They tried their level best to extinguish the fire. The complainant submitted his claim before Opp.Party with a request to settle and pay the sum of Rs.10 lakhs covered under the above said policy. The Opp.Party has paid only Rs.95,400/- through Cheque No.159234, dt:20.11.2008 the said amount is not to the extent of damage suffered in the fire accident by the complainant. Even according to the surveyor of the complainant the stocks were valued at Rs.3,93,090/- in fact the complainant has suffered loss of stock of worth of Rs.8,63,720/. The policy was obtained by complainant for the sum of Rs.10 lakhs, and as the complainant sustained the damage to the above tune but not of Rs.3,93,090/-. The complainant is entitled the difference amount of Rs.7,68,320/-. The complainant got issued a legal notice addressing the office of Opp.Party to pay the difference sum of Rs.7,68,320/- within 15 days from date of service of the said notice dt:21.01.2009 and the said notice was served on Opp.Party for which it issued a reply notice dt:03.02.2009 addressing to the Advocate for the complainant. As the Opp.Party trying to evade the payment. The complainant is constrained to file this case.

The complainant prayed this Forum to direct the Opp.Party to pay the difference amount of Rs.7,68,320/- in favour of the complainant with interest @ 12% per annum from date of fire accident till date of payment with cost, in the interest of justice.



2. The Opp.Party contested the petition and filed counter. The contents of counter are as follows:

It is submitted that there was no stock work of Rs.10 lakhs (Rupees Ten Lakhs Only) in the godown on the alleged date of accident. The complainant himself lodged claim for Rs.3,00,000/- with the Opp.Party and the same was settled at Rs.95,400.00, on 20.11.2008 the complainant received the aforesaid amount in full and final settlement of his claim willingly and without any protest. The complainant had stock worth of Rs.3,93,907.00 in the godown on the alleged date of fire accident. The surveyor also valued the stock lying in the godown on the afore said date and the damage was of Rs.95,400.00. The claim of the complainant is quite excessive exorbitant and disproportionate to the damage. The complainant has no cause of action to file the complaint. The contents of the complainant are false baseless and untenable as such the complaint is not maintainable and liable to be dismissed.

3. Both parties filed Proof Affidavits.

4. On behalf of complainant Ex.A1 to A12 are marked. Ex.B1 to B3 are marked on behalf of Opp.Party.

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

6. Heard both sides. Perused Ex.A1 to A12. Ex.B1 to B3. The Ld. Advocate for the complainant repeated the contents of petition in his arguments similarly. The Ld. Advocate for the Opp.Party reiterated the contents of counter in his arguments.



7. The following are admitted facts:

The fact that the burnt shop in question was insured and the Insurance coverage was substance of on the date of fire accident is beyond dispute. A perusal of Ex.A1 to A5 and Ex.A7 shows that there was fire accident and the reasons for fire accident was not known. Ex.A4 Fire Attendance Certificate dt:06.04.2008. In Ex.A4 the value of the loss of property was not mentioned. Admittedly in Ex.A4 the complainant in coloumn no.11 “damages as reported by the owner; Fertilizers and seeds shop burnt” neither the complainant nor the Fire Officer mentioned about the value of the loss in terms of rupees. The document is silent about the value of the loss. Ex.A2 is the copy of F.I.R. In Ex.A2 complainant requested the S.H.O. to visit the scene of offence and prepare observation report. He mentioned the value of the stock prior to accident as Rs.13,00,000/-. As seen from Ex.A3 Panchanama report some stock was said to be burnt but the approximately value of the burnt stock was not mentioned in Ex.A3. The alleged loss of Rs.10,00,000/- was not found in Ex.A1 to A5 and Ex.A7. The fact that the Surveyor sent by Opp.Parties inspected the burnt shop and prepared the details of loss under Ex.B2 is not in dispute.



8. The Ld. Advocate for the complainant attributed oblique motives to the report prepared by Surveyor under Ex.B2. Except Ex.B2 there is no other document to show that Ex.B2 is incorrect. So the only available report that assessed the loss sustained by complainant is Ex.B2 only. According to Ex.B2 details of loss sustained is as follows:

a). The stock value at shop neat APSRTC complex is Rs.2,10,952/-.

b). Un damaged stock value of fire affected godown is Rs.49,899=17 paisa.

c). The damage stock value in godown is Rs.1,33,066/-.



9. The Ld. Advocate for the Opp.Party submitted that basing of Ex.B2 report there was settlement between the complainant and Opp.Party and the complainant agreed to receive a sum of Rs.95,400/- towards full settlement of the claim and in pursuant of the settlement the Opp.Party received settlement intimation voucher under Ex.B3 and thereafter he sent cheque under original of Ex.A8. So according to Ld. Advocate for the Opp.Party the claim is already settled and subsequent complaint after November 2008 is not maintainable and prayed to dismiss the petition.

10. The contention of Ld. Advocate for complainant is that he received the cheque under protest. He received the cheque under protest is not mentioned anywhere in the available record. It is only the oral argument. In Ex.B3 it is mentioned “I/We agree to accept in full and final discharge of My/our claim upon the company under policy no.050702/11/07/13/00000308 in respect of M/s.Venkateshwara Fertilizers”. After receiving this Settlement Intimation Voucher only the Opp.Party sent cheque and the complainant encahsed the cheque. The available material papers relied on by complainant are not sufficient to show that complainant received the cheque under protest. Thus it is admitted the complainant accepted the conditions of settlement and encashed the cheque. The Ld. Advocate for the complainant for argument sake submitted that there is no date to show to arrive loss sustained is Rs.95,400/- and nobody will purchase the un damaged stock in such condition and prayed to grant relief as prayed in the complaint. After considering all circumstances on record and the probabilities of the case we feel it reasonable to fix the value of the damage rounded off to Rs.40,000/-. The Opp.Party is liable to pay the difference amount rounded off to Rs.40,000/-.



11. In the result the complaint is allowed in part. The Opp.Party is directed to pay a sum of Rs.40,000/- to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to proceed against the Opp.Party U/S.25/27 of C.P.Act 1986. The amount carries 9% interest from the date of complaint. No costs.

CC.No.636 of 2007

BETWEEN:

Tupakula Srihari Rao,

S/o Rangaiah,

Lecturer,

Government Women’s College,

Guntur. … Complainant

and

The Branch Manager,

United India Insurance Company Limited,

Divisional Office,

15/1 Arundelpet,

Guntur. …Opposite Party

This complaint coming up before us for hearing on 15.12.2009 in the presence of Sri J. Narasimha Rao, advocate for complainant and of Sri Paladugu V.R, Advocate for opposite party, upon perusing the material on record and after hearing, having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri M.V.L. Radhakrishna Murthy, Member::- This complaint is filed U/S 12 of Consumer Protection Act, 1986 by the complainant praying to direct the opposite party to pay claim amount of Rs.1,00,000/- with interest @12% p.a., and damages of Rs.50,000/- besides Rs.1,000/- towards costs of complaint.

The averments of complaint in brief are as follows: The complainant took house hold insurance policy from opposite party on 10-02-05 for the period from 11-02-05 to 10-02-06 and paid a sum of Rs.1119/- towards premium of the said policy. The policy covers the insurance risk for house hold articles and valuables of complainant. On 17-04-05 complainant left Guntur in the evening and reached Tenali and after attending some personal work he boarded Hyderabad Chennai train at 10.50 pm in order to go to Ongole and he kept his brief case on the upper side luggage point and he took rest for a while and had a sleep for a little while. After passing Chirala station he woke up and found his brief case was committed theft by some unknown offenders. In the said brief case he kept following jewellery in the cash bag (brown colour):

1. Gold Bangles – 4 pieces – weigh 6 sovereings
2. Nallapoosala Thadu weigh about 3.12/sovereigns
3. Gold Plain Chain 1 piece – weigh 2.1/sovereigns

Complainant after searching for the above said brief case in the compartment found it missing. Thereupon the complainant gave a complaint to the SHO, Railway Police Station, Ongole on 18-04-05 and sent a letter of intimation about theft of jewellery to opposite party. Subsequently, complainant submitted all claim forms along with relevant documents as required by opposite party. The opposite party officials took statement from complainant and started enquiry. On 05-11-06 complainant received a final notice from SHO, Railway Police Station, Ongole stating that they have registered the complaint under Cr.No.42/2005 and they conducted investigation, that inspite of their best efforts the said brief case could not be traced out and due to that act they have referred the case as ‘undetectable’. The complainant informed the said fact to the opposite party and requested the opposite party to settle the claim. Due to loss of above said brief case, the complainant sustained loss for more than Rs.1,00,000/-. As per the terms and conditions of the insurance policy, the opposite party is bound to reimburse the said loss to the complainant. Inspite of several requests made by complainant, the opposite party is not settling the claim and finally on 27-03-07, the opposite party informed the complainant that claim is closed treating it as “no claim”. Finally the complainant got issued a registered notice dated 17-07-07 to opposite party to settle the claim. The opposite party received the same and kept quite. Due to the attitude and behaviour of opposite party the complainant suffered mentally and physically which clearly falls under the deficiency of service. Hence, the opposite party is liable to pay compensation to complainant. Hence, the complaint.

Opposite party filed its version and the contents thereof in brief are as follows: Complainant took house hold insurance policy for the period from 11-02-05 to 10-02-06. After thoroughly scrutinizing entire documentary evidence and insurance policy, this opposite party had repudiated the claim, hence there is no deficiency of service on the part of opposite party. This opposite party after receiving information from complainant regarding alleged claim, made enquiry into the matter. It is very manifest from the contents of FIR as well as his legal notice, the complainant kept the alleged valuable brief case containing gold jewellery away from his place of sitting negligently and had a nap and failed to safeguard his property which amounts to willful act or willful gross negligence on his part. As per the terms and conditions of insurance policy, the general condition No.3, the insurer shall not be liable in respect of any loss or damage is caused by or arising out of willful act or willful gross negligence of the insured. Moreover, it is no where mentioned in FIR the purpose of taking the jewellery along with him while he was traveling lonely, is also suspicious. Hence, the opposite party is not liable to compensate the alleged loss to the complainant under the law. The claim is most frivolous and vexatious one and the complainant has no cause of action to file the complaint. Further, the alleged damage or loss occurred due to theft is false and exaggerative. Hence, the complaint may be dismissed with costs.

The complainant filed affidavit in support of his version reiterating the same. The opposite party also filed affidavit in support of its version reiterating the same.

On behalf of complainant Exs.A-1 to A-9 are marked and on behalf of opposite party Exs.B-1 to B-7 are marked.

Ex.A-1 is the copy of policy. Ex.A-2 is train ticket. Ex.A-3 is written report to Railway police, Ongole. Ex.A.4 is the copy of FIR in Cr.No.42/2005, dated 18-04-05. Ex.A-5 is the letter correspondence between complainant and opposite party. Ex.A-6 is final report dated 05-11-06. Ex.A-7 is No Claim letter issued by opposite party to complainant dated 27-03-07. Ex.A-8 is the office copy of legal notice to opposite party with postal receipt dated 17-07-07. Ex.A-9 is the postal acknowledgement.

Ex.B-1 is copy of insurance policy with terms and conditions. Ex.B-2 is copy of claim form submitted by complainant. Ex.B-3 is copy of letter of intimation of theft of gold jewellery given by complainant to opposite party. Exs.B-4 to B-6 are the letters sent by opposite party to complainant. Ex.B-7 is office copy of reply legal notice got issued by opposite party.

Now the points for consideration are that,

1. Whether there is any deficiency of service on the part of Opposite party?

2. To what relief the complainant is entitled to?

Points 1 &2:- It is the case of complainant that he had taken house hold insurance policy from opposite party and that on 17-04-05 while he was traveling from Tenali to Ongole in Hyderabad Chennai train he lost his brief case containing gold jewellery and that he gave a police complaint to Railway Police at Ongole on 18-04-05 and that police after investigation referred the complaint as undectable, and that he made claim to opposite party for the loss of jewellery and the opposite party closed the claim treating it as ‘no claim’.

It is the case of opposite party that they have repudiated the claim after thorough scrutiny of the entire documentary evidence and that as per the terms and conditions of the insurance policy under condition No.3, the insurer shall not be liable in respect of any loss or damage is caused by or arising out of willful act or willful negligence of the insured and that complainant kept the alleged valuable brief case containing gold jewellery away from his place of sitting negligently and had a nap and failed to safeguard his property and that amounts to willful act or willful gross negligence on his part. It is further alleged by the opposite party that alleged damage or loss occurred due to theft is false and exaggerated and that the claim of complainant is frivolous and vexatious.

It is not in dispute that complainant had insured his house hold articles including valuables with opposite party and during the subsistence of the said policy he lost his brief case while traveling in Hyderabad Chennai train from Tenali to Ongole on 17-04-05 and that after passing Chirala station he woke up and found that his brief case was committed theft of by unknown offenders and on that he gave a complaint to Railway police at Ongole on 18-04-05 and that the police duly registered the complaint of complainant and after investigation they referred the complaint as “undetectable”. The police have referred the complaint as undetectable but not as false as alleged by the opposite party. The complainant was traveling in a train in the odd hours that too without reservation. He was traveling in a general compartment. In such a case there may not be any place for keeping the brief case with him while he was sitting in a general compartment, which will be naturally run with heavy rush. He kept his brief case on the upper side of the luggage point. It is natural conduct of a passenger to place the brief case or suit case at the luggage point and sit in the sitting place. The complainant was traveling in odd hours, hence the complainant had a nap for a while and woke up after the train passed Chirala station and found his brief case was missing and immediately after reaching Ongole he lodged a complaint before the police. In the circumstances, one cannot attribute any negligence on the part of complainant.

Further it is the case of opposite party that complainant has not mentioned in FIR the purpose of taking jewellery along with him and that the claim of complainant is false. There is no necessity to mention the reason for taking jewellery in FIR. Though the opposite party alleged that the loss occurred due to theft is false, the opposite party has not placed any evidence in support of its allegations that the claim of complainant is false. Moreover, as already mentioned above the police have referred the complaint as “undetectable”. If the complaint of the complainant is false the police would have referred the complaint as false, after investigation. Hence, in view of the referred notice of the police it can be concluded that offence was committed actually and that the complainant lost his jewellery and the police could not trace the same after investigation and referred it as undetectable, vide Ex.A-6.

The complainant claimed a sum of Rs.1,00,000/- towards value of lost jewellery. But as seen from Ex.B-2 claim form submitted by complainant to opposite party the value of lost jewellery is shown as Rs.45,000/- and from the FIR vide Ex.A4 the value of the lost jewellery of the complainant is noted as Rs.40,000/-. As seen from Ex.A-1 the jewellery and valuables are insured for a sum of Rs.77,370/- for which the premium collected is Rs.777.57ps. Therefore, the complainant is entitled for a sum of Rs.40,000/- only noted in FIR (Ex.A-4).

In view of the foregoing discussions and the facts and circumstances of the case, we find that there is deficiency of service on the part of opposite party and that complainant is entitled for a sum of Rs.40,000/- towards the value of lost jewellery that was insured with the opposite party, together with compensation and costs.

In the result, the complaint is allowed in part in terms as indicated below:

1. The opposite party is hereby directed to pay a sum of Rs.40,000/- towards the loss of insured jewellery with interest @9% p.a., from the date of repudiation i.e., 27-03-07 till the date of realization.
2. The opposite party is further directed to pay Rs.1,000/- (Rupees one thousand only) towards compensation for mental agony and Rs.1,000/- (Rupees one thousand only) towards legal expenses.
3. The aforesaid amounts shall be paid within a period of six weeks from the date of receipt of copy of order failing which the amounts ordered in item No.2 shall carry interest @ 9% p.a. till the date of realization.

consumer case(CC) No. CC/08/165

Venkiteswaran M.S, Lakshmi Nivas, Madakkimala Post, Muttil north village, Vythiri taluk.
...........Appellant(s)

Vs.

The Branch Manager, m/s United India Insurance Co. Ltd, Kalpetta.

M/s Paramount Health Services(P) Ltd, Building No: Cc50/127, Plot No. 1 Krishna vihar, Panampally Avenue, Kochi-682036
...........Respondent(s)


BEFORE:
1. K GHEEVARGHESE
2. P Raveendran
3. SAJI MATHEW


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):

ORDER

By Sri. P. Raveendran, Member:-

Brief of the complaint:- The Complainant is an individual Mediclaim Policy Holder under Opposite Party vide Policy No. 101601/48/20/00480 covering the period from 27.6.2006 to 26.6.2007. As per the policy his wife Smt. Vrinda Lakshmi was also covered in the policy and a sum of Rs. 1,612/- was paid as the premium of policy. During the validity period of the policy smt. Vrinda Lakshmi was hospitalised at Malabar Institute of Medical Science, Calicut due to Fibroid Uterus/ Tab with BSO. She was admitted there and subjected to Abdominal Hysterectomy and he spent Rs. 29,115/- for the same. Immediately the Complainant submitted all the documents and medical bills for reimbursement to the Opposite Party. But the Opposite Party rejected the claim stating that the above disease was a pre-existing illness. Rejection the claim is gross deficiency of service on the part of Opposite Party. Hence it is prayed to pass an order directing the Opposite Party to pay.

1.

A sum of Rs. 29,115/- with 12% interest.
2.

A sum of Rs. 10,000/- as compensation.
3.

Cost of the complaint etc to the Complainant.

2. Opposite Party appeared and filed version. In the version Opposite Party admitted that Complainant is a policy holder under them and policy issued to the Complainant. Maximum risk coverage per person is Rs.10,000/-. As per the policy the Complainant and his wife Smt. Vrinda Lakshmi were covered. The claim submitted by the Complainant was processed and on verification of documents it is found that the disease was pre-existing. The complainant's wife Smt. Vrinda Lakshmi had multiple fibroid uterus TAH with BSO. The ailment was since 1 ½ years. The policy inception date was 27.6.2006. The patient was admitted on 26.4.2007 and discharged on 05.05.2007. Hence the claim was repudiated as per the pre-existing clause 4.1 of the policy. Hysterectomy fibrmyoma falls under the first year policy extension as per clause 4.3 of the policy. Hence there is no deficiency of service on the Opposite Party. So disallow the the complaint with cost.

3. Considering the complaint and version the following points are to be considered.

1.

Is there any deficiency of service on the part of the Opposite Party?
2.

Relief and cost.

4. Point No.1:- To prove Complainant's case, Complainant has filed his proof affidavit and Ext.A1 to A3 documents were also marked. In the proof affidavit he stated as stated in the complaint. Ext.A1 is the claim rejection letter issued by the Paramount health Services Private Ltd., by Opposite Party to the Complainant. In the letter it is clearly noted that the matter is closed. Ext.A3 also a rejection letter issued by Paramount Health services Private Ltd to the Complainant. To prove Opposite Party's case chief affidavit of Opposite Party and Exts.B1 to B3 and B2 (a) documents were marked. Exts.X1 and X2 were also marked by the Forum. In the chief affidavit he stated as stated in the version. Ext.B1 is the Mediclaim Proposal copy. Ext.B2 is the policy of the complainant from 27.6.2007 to 26.6.2008. Ext.B2(a) is the copy of the policy of the Complainant from 27.6.2006 to 26.6.2007. Ext.B3 is the photocopy of the admission request note of Vrinda Lakshmi issued by Dr. Geetha V Balan which was marked subject to prove. Ext.X1 is the Mediclaim Insurance Policy Claim form along with all relevant documents produced by Opposite Party as per the direction of this Forum. Ext.X2 is the case sheet of Vrinda Lakshmi produced from Malabar Institute of Medical Science as per the direction of this Forum.

5. On perusing the documents and affidavits produced by both parties the main contention of Opposite Party is that (1) The Complainant's wife Smt. Vrinda Lakshmi had multiple fibroid uterus TAH with BSO and the ailment was since 1 ½ years. (2) Hysterectomy for fibrmyoma falls under the first year policy. No evidence is adduced before this Forum to prove their contention. Whereas on perusing Ext.X1 it is found that Smt. Dr. Geetha V Balan, M.D, DGO who treated Vrinda Lakshmi clearly noted that she would have been suffering from this illness for the last one month. More over in Ext.X2 also it is clearly recorded like this “Relevant past history is recorded Nil”. The policy is from 27.6.2006 to 26.6.2007. As per Ext.X1 first consultation is on 18.4.2007. So there is no evidence before us she is suffering from this disease at the time of taking the policy. The other contention of Opposite Party is hysterectomy for fibrmyoma falls under the first year policy exclusion as per clause 4.3 of the policy. In Ext.X1 nature of disease is noted as multiple fibroids uterus. No evidence before us hysterectomy is for fibrmyoma. Hence rejecting the claim without sufficient reason is deficiency of service on the part of the Opposite Party. In Smt. Hajeef Kumar V/S National Insurance Co. Ltd and Others 2009 (4) CPR Page 36 by allowing the appeal Hon'ble National Commission has held that no material to show that insured was aware of fibroids in her uterus. No evidence to prove that she was aware of disease. Petitioner was entitled to claim under policy. This is a fit case to apply the above decision. Hence point No.1 is decided in favour of the Complainant.

6. Point No.2:- On going through Ext.B2 (a) (Policy) it is clear that as per the policy the Complainant is entitled to get Rs.10,000/- as domiciliary hospitalisation benefit. So he is entitled to get Rs.10,000/- with interest of 10% from the date of filing the complaint till the payment is made. He is also entitled to get Rs.1,000/- as cost of the Complainant. Point No.2 is decided accordingly.

In the result the complaint is partly allowed and the Opposite Party is directed to pay Rs.10,000/- (Rupees Ten thousand only) with 10% interest from the date of filing the complaint till the payment is made and Rs.1,000/- (Rupees One thousand only) as cost of the complaint to the Complainant. The order is to be complied within one month on receipt of this order.

Pronounced in open Forum on this the day of 30th December 2009.

consumer case(CC) No. CC/09/69

Ealiyamma Paulose,Kavumolayil Veedu,Nenmenikunnu .p .o,Sulthan Bathery
...........Appellant(s)

Vs.

Manager,United India Insurance Co.Ltd,SulthanBathery Branch,SulthanBathery .P.O

Manager,South Malabar Gramin Bank,Kalloor Branch,Kalloor .P.O,SulthanBathery
...........Respondent(s)


BEFORE:
1. K GHEEVARGHESE
2. P Raveendran
3. SAJI MATHEW


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):

ORDER

By Smt. Saji Mathew, Member:

The Complainant purchased two milking cows using a Rs. 50,000/- loan from South Malabar Gramine Bank, Kalloor Branch. The cows were insured with the Opposite Party one for Rs. 18,000/- and the other for Rs.17,000/-. The cow which was insured for Rs.18,000/- as per policy No.101602/47/00/01/00000066 died on 23.06.2008 due to disease. The postmortem was done by Dr. Dayal. The Opposite Party was informed the matter. The Complainant has complied with all the formalities and submitted all the necessary documents to get the claim for the cow. But the Opposite Party send a voucher only for Rs.9,000/- to the bank. The cow was insured for Rs.18,000/- and the Complainant is entitled to get the entire amount. Therefore, the Complainant prays for an order directing the Opposite Party to disburse the entire claim of Rs.18,000/- with 12% interest.
2. The Opposite Party appeared and filed version. As per the version, the date of death of the cow noted in para III (1) of the complaint is not true. The date of death is noted as 23.6.2008 in the complaint. As per the knowledge of the Opposite Party, the cow died on 02.8.2008. Before that, on 17.06.2008, Dr. Dayal, a Veterinary Surgeon reported permanent total disability claim regarding the cow and claim form was issued on the same day itself. But the Complainant had not submitted the permanent total disability claim. Subsequently, it is reported that the cow is died. As per policy conditions, in case of illness or accident, proper treatment should be given to the cow at the expense of the insured. In this case no proper treatment or attention was given to the cow and therefore, the 1st Opposite Party is not liable to compensate the Complainant. Therefore, the Opposite Party prays for an order dismissing the complaint.




3. The matters to be considered are as follows.

1.

Whether there is any deficiency in service on the part of the Opposite Party?
2.

Whether the Complaint is entitled for any relief?


4. Point No.1:- The main contention raised by the Opposite Party is that the date of death is not correct and no proper treatment or care is given to the cow. They also state that they are liable to pay only 50% of the claim if the cow is not pregnant or not in milk production. It is true that at the beginning part of the complaint, the date of death is shown as 23.6.2008. But in other parts of the Complainant, the date of death of the animal is shown as 02.08.2008. OPW1 is the doctor who had done the postmortem of the cow. The doctor in the cross-examination has deposed that he had treated the cow even one month before 31.07.2008. He himself had treated the cow at all times of ailment. He depose that the calving was on 11.5.2008 and the cow would have been at good milk producing condition if the disease was not happened. This policy is a non scheme policy also. So there is no reason for denying the full amount of insurance to the Complainant. Hence the point No.1 is found against the 1st Opposite Party.


5. Point No. 2:- The Complainant is entitled to get the full amount of insurance Rs.18,000/- from the 1st Opposite Party. The Complainant is also entitled for compensation also.

Hence the 1st Opposite Party is directed to pay Rs. 18,000/- (Rupees Eighteen thousand only) to the Complainant within 30 days of the receipt of this order. The 1st Opposite Party is also directed to pay an interest at the rate of 10% on the insurance amount Rs.18,000/- (Rupees Eighteen thousand only) from the date of complaint till payment. The Opposite Party is also entitled to get a compensation of Rs.500/- (Rupees Five hundred only) from the 1st Opposite Party. No order as to costs.

consumer case(CC) No. CC/09/17

Biji

Basil

Avarachan Isahak

Valsa Avarachan
...........Appellant(s)

Vs.

United India Insurance Company Ltd.
...........Respondent(s)


BEFORE:
1. Smt.Bhanumathi.A.K
2. Smt.Preetha.G.Nair
3. Smt.Seena.H


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

Civil Station, Palakkad 678001, Kerala

Dated this the 31st day of December, 2009
Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

C.C.No.17/2009

1. Biji,

W/o.Late Biju.A,
2. Basil,

S/o.Late Biju.A,

3. Avarachan Isahak,

4. Valsa Avarachan,

W/o.Avarachan Isahak,

Karikkonayil, Kaithachir, Kairady,

Chittur, Palakkad. - Complainants

(By Adv.C.Madhavankutty and Joy Kanhirathinchalil)
Vs
United India Insurance Company Ltd.,

Branch Office,

T.G.Towers, 2nd Floor.

Near Bus Stand,

Nemmara, Palakkad.

(By Adv.A.Rajivijay Sankar)

O R D E R

By Smt.Preetha.G.Nair, Member

The deceased Biju.A was the registered owner of the motor cycle Reg. No.KL49 2155 and the same was insured with the opposite party as per Personal Accident Insurance claim policy No.101204/31/06/01/00004664 valid from 30/10/06 to 29/10/07. The first complainant is the wife, second complainant is son, third complainant is father and fourth complainant is mother of Biju, who died with a motor vehicle accident. The complainants are the legal representatives and dependents of Biju.A. On 3/6/07, the said motor cycle was driven by Shijoy with Biju.A as pillion rider the vehicle met with an accident. Biju.A sustained serious injuries and succumbed to death. At the time of accident the motor cycle was driven by Shijoy, who is having valid driving license at that point of time and the same is admitted by the opposite party. 1st Complainant applied for claim under personal accident coverage. But the claim was rejected on the ground that the deceased was not having valid

driving license to drive the motor cycle. The police in this case have thoroughly investigated the matter and has concluded that the accident has happened due to rash and negligent driving of motor cycle Reg. No.KL 49 2155 by Shijoy and that Biju.A was only a pillion rider. As long as the accident has not happened due to negligence of Biju.A, the opposite party has no right to repudiate claim. Hence the act of opposite party repudiating the claim amounts to gross deficiency of service and unfair trade practice. Complainants pray an order directing the opposite party to pay an amount of Rs.1,00,000/- with interest at the rate of 12% per annum and Rs.20,000/- as compensation and cost of this proceedings.
Opposite party filed version stating the following contentions. Opposite party admitted that the vehicle of the deceased was insured with personal accident cover to an extent of Rs.1 lakh. The personal accident cover for owner cum driver is subject to the following conditions as per Section III of the policy.

a. The owner cum driver should be the registered owner of the vehicle,

b. The owner cum driver is the insurer of the vehicle

c. The owner cum driver hold a effective driving license in accordance with the provisions of Rule 3 of the Central Motor Vehicle Rules, 1989.

On receipt of claim intimation the company issued a notice requesting the claimant to produce the original and copy of the driving license of the deceased on 29/10/07. But she did not produce those records. Hence the claim was repudiated on 26/02/08 and the intimation served to the party on 07/03/08. To get personal accident claim the insured should have valid driving license and he should be the owner and rider of the vehicle. The complainant has misconstrued the provision of law in order to get compensation. Mere traveling as pillion is not a ground to get personal accident cover. He should be the rider and owner. There was no gross negligence on the part of opposite party. The repudiation is as per the provisions of law. Hence the complaint is to be dismissed with costs to the opposite party.



1st complainant filed chief affidavit and documents. Exts.A1 to A7 marked on the side of complainant. Opposite party also filed affidavit and documents. Ext.B1 to B5 marked on the side of opposite party. Opposite party was cross examined as DW1.

Issues to be considered are;

1.

Whether there is any deficiency in service on the part of opposite party.
2.

If so what is the relief and cost?

Issues 1 & 2:

We have heard the learned counsels for the parties and perused the record. In this case there is no dispute on the point that the deceased had got the motor cycle insured with the opposite party insurance company for the period 30/10/06 to 29/10/07 and had taken a personal accident policy covering the risk in the manner that in case the insured dies in an accident, the opposite party would pay a sum of Rs.1 lakh. There is also no dispute on the point that the claim of the complainant was repudiated by the opposite party on the ground mentioned in the repudiation letter. As per their policy condition stated in Ext.B4, in order to get personal accident coverage for owner cum driver, owner-driver should possess effective license to drive the vehicle. Perusing the conditions stipulated in Ext.B4, we are of the view that the said conditions apply in cases where the owner and driver is one and the same persons i.e owner cum driver. That is not the case in this particular matter. 1st Complainant's husband is the insured and registered owner of the vehicle. Vehicle was driven by Shijoy, who is having a valid driving license. There is no dispute regarding this aspect. In this case the proximate cause of the accident was the rash and negligent driving of the driver Shijoy. Opposite party was cross examined and he has clearly deposed that the deceased Biju has not obtained the policy by misleading or misrepresentation. Thus the present case is a case where accident had taken place without there being any fault of the deceased who was a pillion rider on the motor cycle. In view of the above discussions we allow the complaint.

Opposite party is directed to pay the complainants an amount of Rs.1,00,000/- (Rupees One lakh only) being the claim amount and Rs.20,000/- (Rupees Twenty thousand only) as compensation and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings. Order shall be complied within one month from the date of receipt of this order failing which the whole amount shall carry 9% interest on the aforesaid amount from the date of order till realisation.

consumer case(CC) No. CC/07/115

Savithri
...........Appellant(s)

Vs.

The Managing Director, Palakkad District Co-op Hosp. and Research Centre Ltd.

Dr.C.K.Lathika.M.B.B.S,

The United India Insurance Co. Ltd.
...........Respondent(s)


BEFORE:
1. Smt.Bhanumathi.A.K
2. Smt.Preetha.G.Nair
3. Smt.Seena.H


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):
ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 31st day of December, 2009.


Present : Smt. Seena.H (President)

: Smt. Preetha.G. Nair (Member)

: Smt. Bhanumathi.A.K. (Member)

C.C.No.115/2007




Smt. Savithri

W/o. Gangadharan

Thazhath House

Kannanore Post

Coyalmannam, Alathur Taluk

Palakkad. - Complainant

(Adv. T.V. Sudarsh )

V/s

1. The Managing Director

Palakkad District Co-operative Hospital

& Research Centre Ltd, No.P.878

Court Road,

Palakkad – 678 001.

(Adv.R.Udayakumar)

2. Dr. C.K. Lathika, MBBS

DGO

Thottungal

Palakkad

(Adv.V.K. Venugopalan)

3. United India Insurance Co Ltd

Palakkad Branch - Opposite parties

(Adv.C. Mohanram)

O R D E R

By Smt. Seena.H, President

Case of the complainant
The case of the complainant is that complainant was the patient of the 2nd opposite party in connection with her second pregnancy. Though on checkup, date of delivery was suggested by the 2nd opposite party as 23/02/2007, it was also suggested that the complainant need admit in the hospital only on pain. Complainant was admitted on 27/02/2007. On 27/02/2007, she felt only intermittent pain but the next day ie, on 28/02/2007, she felt pain and uneasiness from morning itself. Doctor examined her 3 times

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before 1.30 P M and nothing was informed. After 2 P M she felt severe pain and uneasiness and since the pain was intolerable, the husband of the complainant informed the staff of 1st opposite party hospital. But there was no response. In between 2 P M and 10.30 P M, many times staff of 1st opposite party was informed about the condition of the complainant, but they took her to labour room only at 11 P M. From labour room, it was informed by the 2nd opposite party that the matter is complicated and suggested an urgent operation. At about 2 A M on 01/03/2007 it was further informed that a male baby was born and the baby is dead. According to the complainant, the death of the baby was due to the delay in conducting the operation and also due to the lack of proper care and attention and treatment to the complainant. The death of the baby happened only due to the negligence of duty on the part of the staff of the 1st opposite party hospital and 2nd opposite party Doctor. Complainant was in ICU following the operation for 3 days. Complainant spent an amount of Rs.20,000/- including the hospital expenses and now claims an amount of Rs.1,50,000/- as compensation.


The version of opposite parties is as follows.

1st opposite party denied the entire allegations levelled against the hospital. The say of the complainant that the duty nurses of the 1st opposite party hospital has not responded when the husband of the complainant informed about the pain is false. 1st opposite party denies the allegation of the complainant that the demise of the petitioners new born child happened only due to the negligence of duty on the part of 1st opposite party and negligence of 2nd opposite party. According to the 1st opposite party there is no negligence or lack of duty to take care on the part of opposite parties.

According to the 2nd opposite party, when she was working in Palat Memorial Hospital, Palakkad, complainant and her husband were working as Nursing Assistant and Watchman in the same hospital. Because of that acquaintance they used to consult 2nd opposite party whenever medical problems arose. Likewise regular anti-natal checkup of the complainant was conducted by 2nd opposite party free of cost at the residence of 2nd opposite party. She got admitted for delivery in the 1st opposite party hospital. When the matter was



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informed by the husband of the complainant, she had visited the 1st opposite party hospital as he worked there previously and with their permission did all the needful to the complainant. 2nd opposite party submitted that she was not an employee under 1st opposite party at the relevant time and it was not as per the advise of the complainant that the complainant got admitted to the 1st opposite party hospital. According to 2nd opposite party, it was the fourth pregnancy of the complainant. She had history of undergoing two abortions and has a living child. Her expected date of confinement (EDC) was 27/02/2007. On examination her uterus was found to be of full term size, with vertex presentation. Her general condition was good. She had no labour pain. Per vaginum examination revealed that the cervix was not taken up, as was admitting only tip of finger and head was at 3 station. Necessary medication was given. Caster oil was given at night. The duty staff were instructed to monitor the foetal heart sounds and uterine contraction if any at regular interval by the doctor on duty. They were also instructed to inform her if there was any development. Next day morning ie, on 28/02/2007, there was no pain. 2nd opposite party and duty staff had repeatedly examined her. Same day evening she complained of mild pain. The duty staff had repeatedly monitored and reported the progress to the Gynaecologist on duty.


The labour pain became more severe at around 10.30 P M following leaking per vagina. She was immediately shifted to the labour room and informed 2nd opposite party immediately. 2nd opposite party rushed to the labour room at once. The patient suddenly developed severe sweating and breathlessness. There was sudden fall in blood pressure and tachycardia (increased heart rate). She also became tachy pnoeic (increased respiratory rate) dyspnoeic (difficulty in breathing) and restless. She was irritable and there was swelling and redness all over the body. Immediate resuscitation measures were started. Cardiotochography was advised which showed signs of foetal distress. Since foetal heart rate showed variations it was decided to do an emergency caesarean and the anaesthetiast Dr.M.K. Govindan and Paediatrician Dr. Naveen Sivadas were informed. After taking an informed written consent and after explaining the condition of the patient and the possible complication that could probably develop, patient was taken up for surgery. Following the caesarean section, a deeply asphyxiated male baby was extracted and the baby was

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handed over to the Pediatrician who was present in the operation theatre itself. The baby was immediately shifted to NICU. Despite the sincere efforts of the Pediatrician the baby died after about four hours. Complainant was further treated in ICU and was discharged on 6th post operative day.

According to the 2nd opposite party, patient developed mild pain in the evening only. The patient and the FHS(Foetal Heart Sound) were being regularly monitored and 2nd opposite party was also informed about the same. It was only at 10.30 P M, pain became more severe and the patient was shifted to the labour room. 2nd opposite party also reached the hospital at once.

2nd opposite party also denies the allegation of the complainant that the husband of the complainant was informed about the death of the male baby at 2 A M. According to 2nd opposite party, the birth was informed at 11.30 P M. He was well informed about the conditions of the baby and the effort being made by the Pediatrician to resuscitate the asphyxiated baby. It was at 3.45 A M that the husband of the complainant was informed about the death of the baby.

According to the opposite party, the allegation of the complainant that the demise of the complainant's new born baby was due to the negligence on the part of 2nd opposite party and the staff of 1st opposite party is false and baseless. Despite all care taken by the opposite parties, the patients developed amniotic fluid embolism, which is one of the dreaded complications of labour which can never be predicted or prevented. Amniotic fluid embolism is a complex disorder characterized by the abrupt onset of hypotension, hypoxis and consumptive coagulapathy. There are great individual variations in its clinical manifestations varying from mild anaphylactic reaction to severe reactions culminating in death.

In amniotic fluid embolism, the amniotic fluid enters the circulation as a result of a breach in the physiological barrier that normally exists between the maternal and foetal compartments resulting in the maternal exposure to various foetal elements. This may occur during labour or normal delivery and even during caesarean. In most cases, these events are annocuous. However in certain women, such exposure initiates a complex series

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of reactions mimicking those seen in human anaphylaxis causing the above said complications. This syndrome is uncommon in an absolute sense, however it is a common cause of maternal death. Classically a woman in the late stages of labour and immediate post partum begins gasping for air and then rapidly suffers seizure or cardio respiratory arrest resulting in death. As a result of amniotic fluid embolism there occurs uterine hypertonicity along with cardio vascular collapse. Indeed uterine blood flow ceases completely when intrauterine pressure exceeds 30 to 40 mm Hg. As a result of the uterine hypertonicity baby developed severe hypoxia. This resulted in the baby being asphyxiated within the uterus itself and finally ending in death.


2nd opposite party denies the say of the complainant that she has not conducted the operation in time. According to 2nd opposite party, caesarean section is always conducted whenever there is an indication for it and it is never done unnecessarily. In the case of the complainant, her previous delivery was normal. During this particular pregnancy her anti-natal period was uneventful. All her parameters and that of foetus were within normal limits. Her pelvic dimensions were adequate. Even at the time of admission no abnormality was detected. The patient developed mild labour pain since 28/02/07 evening. The labour was progressing normally. Hence there was no indication for an elective LSCS. As soon as an abnormality was noted in the patients condition and foetal distress was seen, it was decided to do an emergency LSCS. Amniotic fluid embolism as mentioned above is a rare but dreaded complication. It can never be predicted or prevented. It was due to the proper care and attention rendered timely to the complainant which could save her life.

3rd opposite party filed version in tune with 1st opposite party and 2nd opposite party.

Complainant filed affidavit. Exhibit A1 to A5 marked on the side of the complainant. Complainant was cross examined as PW1. Witness on the side of complainant was examined as PW2.

Except 2nd opposite party, other opposite parties has not filed any affidavit. Exhibit B1 series marked on the side of 2nd opposite party.

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Now the issues for consideration are:

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

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

Issue No.1

The specific case of the complainant is that the death of the new born baby of the complainant occurred due to the delay in conducting caesarean by the concerned doctor and also due to negligence of the hospital staff in not attending the patient in time when she complained of pain.
Opposite parties 1 & 2 on the other hand contented that there was no negligence or delay in attending the patient or providing treatment. The death of the child was due to the phenomenon known as amniotic fluid embolism which is a complication which cannot be predicted earlier.

We heard the learned counsels for all the parties and has gone minutely every evidence on record.

On going through Exhibit A1 series lawyer notice dated 07/05/2007 complainant has stated that severe pain was developed at 11 P M on 28/02/07. But in the complaint it is stated that she felt severe pain and uneasiness from morning itself and she was examined by 2nd opposite party on these occasion and after 2 P M she felt severe pain and it was informed to the duty nurses. Further there is no case of non-attendance of the 1st opposite party hospital staff between 2 P M to 10.30 P M in the notice. Further complainant has specifically stated in the complaint that at 2 A M in the morning complainant's husband was informed about the birth of a male baby and it was dead. On going through Exhibit B1 series, the copy of the case sheet produced by 2nd opposite party, it is revealed that the critical situation of the baby was informed the complainant's husband and he has consented to carry out further treatment.
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As per Exhibit B1 case records and as per the admission of the complainant herself 2nd

opposite party has examined the patient thrice before noon. It is also seen that she was once more examined by the doctor in the evening. Thus as per records the concerned doctor has repeatedly examined the patient.

It is alleged by the complainant that the death of the child occurred due to the delay in conducting caesarean by the 1st and 2nd opposite parties. Opposite parties has on the other hand contended that the death occurred due to a phenomenon known as Amniotic fluid embolism. Contention of the opposite parties are clearly substantiated by way of Exhibit B1 case sheet and Exhibit A4 discharge card.

To prove negligence on the part of a doctor, complainant has to definitely pass the 'Bolam test' as reiterated by Honourable Supreme Court in a catena of decisions. Moreover complainant has not taken any steps to adduce any expert evidence to throw light on the aspect of medical negligence. More over nothing has been brought to show that the doctor has not done what she ought to do or did something which a doctor possessing ordinary skills ought not to have done. Even though the treated doctor was cross examined, nothing was deposed to the effect that there was negligence on the part of 2nd opposite party.
On the whole, no evidence has been lead by the complainant to prove the allegation of medical negligence on the part of opposite parties.
In the aforementioned circumstances we are unable to arrive at a conclusion that there is negligence on the part of opposite parties.

In the result complaint dismissed.

consumer case(CC) No. CC42/2009

Divya V
...........Appellant(s)

Vs.

Branch Manager
...........Respondent(s)


BEFORE:

1. Bindhu M Thomas

2. Santhosh Kesava Nath P

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

OppositeParty/Respondent(s):

OppositeParty/Respondent(s):
ORDER
CONSUMER DISPUTES REDRESSALFORUM, KOTTAYAM

Present

Sri.Snthoshkesavanath.P. President

Smt.Bindhu M.Thomas Member

Sri.K.N.Radhakrishnan Member.

CC.No.42/09

Wednesday, the day of 31st, December, 2009.
Petitioner. Divya.V.

Leelavilas

Near Union Club

Kottayam-1.

Vs.

Opposite parties: 1. United India Insurance Co.Ltd.

Branch Manager Parekulam

Buildings Collectorate.P.O.

Kottayam.

(Adv.Stheesh Mathew Zacharia)

2. Sheela

Kinnagiri ouse, Arthooty

Kottayam-1.

3. T.T.K.Health Care Service Pvt.Ltd.

7, Jeevan Bhima Nagar Main Road

AL 3rd Stage, Bangalore-560 075.

O R D E R

Smt.Bindhu M.Thomas, Member.

The case of the complainant is as follows:

Complainant is a Bsc Nursing student who availed an Individual Health Insurance Policy from the first opposite party. Second opposite party is an authorized agent of the first opposite party and third opposite party is the claim settlement authority of the first opposite party. The second opposite party collected yearly premium of Rs.608/- from the complainant and the first opposite party issued a policy vide policy No. 100505/48/08/97/00000199 to the complainant after the full medical examination which was valid from 12-5-2008 to 11-52009. On 14-5-2008, complainant fell down in the bath room and caused severe pain to her back. Immeditely she was taken to hospital and

-2-

treatment including surgery and physiotherappy was done. She was discharged from the hospital on 2-6-2008. Subsequently the complainant claimed an amount of Rs.57,961/- to the third opposite party and gave all original medical records including medical bills. On 26-8-2008, third opposite party rejected the claim on the medical certificate sentence ''basic cause of disc degeneration would have started few months back. ''The complaint contented that the reason for the claim repudiation is not sustainable as the said treatment started only after the complainant fell down in the bathroom. The complainant further contented that he had no prior knowledge of disc degeneration and had never consulted a doctor before 14-5-2008 for any disc problem. According to the complainant the said disc degeneration was detected after she fell down in the bathroom. The complainant alleged ''deficiency in service'' and unfair trade practice'' on the part of opposite parties and filed this complaint claiming Rs.57,961/- with18% interest, Rs10,000/- as compensation for mental agony and cost.

Notice was served to all the opposite parties. Third opposite party called absent hence set expartee. First and second opposite parties entered appearance and filed version seperately.

The first opposite party filed version with the following main points.

1.

The complainant was having disc prolapse even much before and hence

she took individual health policy and admitted in the hospital for

the treatment of the same.
2.

The claimant was insured for a sum of Rs.50,000/- only by her

individal policy but she claimed an exhorbitant amount of Rs.57,961/-.
3.

The claim was repudiated on the ground that the disease was a

pre-existing one.
4.

The policy explicitly excludes any disease contracted within 30

days from the inception and pre-existing diseases are not covered.
5.

In this case there is suppression of material facts from the side of the

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complainant and hence the contract of insurance is void abinitio.
6.

As the claim was repudiated on valid and reasonable grounds,

there shall be no mental agony or money loss happened to the

complainant.

Hence the first opposite party prayed to dismiss the complaint with costs to them.

The second opposite party filed version with the following main contentions.

1.

According to the information received by this opposite party, the

cause of the fall is due to disk degeneration which was existing

prior to the inception of the policy.
2.

As there is suppression of material facts by the complainant the rejection

of the claim is on valid grounds.
3.

There is no deficiency in service or unfair trade practice on the

part of opposite parties.

Hence the second opposite party prayed to exonerate her with regard to this petition allowing the cost.

Point No.1.

Heard boh sides and perused the entire documents on record. The first and second opposite parties counsel argued that the policy excludes any disease contracted within 30 days from the inception. The Individual Health Insurance Policy originl and true copy are produced by the complainant and opposite parties and they are marked as exhibit A4 and exhibit B1 respectively. On perusal of exhibit A4 & B1 no such exclusion clause is seen. So the opposite parties' abovesaid contention will not stand.

It is not in dispute that the cmplainant was admitted to Caritas Hospital on 14-5-09 and was treated there till 2-6-2009. The petitioner submitted that the aforesaid

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treatment was taken due to fall in bathroom. The opposite parties produced the medical report from Caritas Hospital and it is marked as exhibit B3. The opposite party's counsel further submitted that as per the 'history of illness' in the medical report, the basic cause of disc degeneration would have started a few months back. The learned counsel for opposite parties argued that the complainant had not revealed the ailment in the proposal form and therefore the claim is inadmissible. The repudiation letter is produced and marked as exhibit A7. As per exhibit A7the claim was repudiated on grounds that the disease was pre-existing and that the treatment was wthin 2 days of inception of cover.

In this case the policy was taken by the complainant on 12/5/08 and prior to that no proof had been given by the opposite parties to show that the complainant was ever admitted in the hospital for the treatment of the alleged disease. There is nothing on record to prove that the complainant was a patient of ''disc degeneration'' before filling in up the declaration form. Furthermore there is no record to prove that the complainant was in knowledge of the said disease prior to the date of admission in the hospital. So in our opinion the non-mentioning of such type of disease in the declaration form by the complainant does not amount to suppression or concealment of material fact or mis-statement. In our view the repudiation of the claim on flimsy grounds is not justified and we hold the opposite parties dificient in service. Point No.1 is found accordingly.

Point No.2.

The learned counsel for first and second opposite parties submitted that the complainant had insured herself for an amount of Rs.50,000/- only as sum insured. On perusal of ext.A4, policy it is seen that the sum insured is only Rs.50,000/-. The complainant submitted tht she made a claim of Rs.57,961/- based on the actual expenses incurred by her in the hospital. The opposite parties one and two has no case that the claim of Rs.57,961/- is untrue or incorrect. So we feel that the insured sum of Rs.50,000/- is to be given to the complainant.

consumer case(CC) No. CC/08/54

Jayasree. S, Jaya Bhavanam, Kalleli Bhagom.P.O., Karunagapally, Kollam
...........Appellant(s)

Vs.

Regional Manager, Regional Office, United India Insurance Company Ltd. and Other

Branch Head, United India Insurance Company Ltd.
...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

OppositeParty/Respondent(s):

OppositeParty/Respondent(s):

ORDER

SRI.K. VIJAYAKUMARAN, PRESIDENT.

This is a complaint seeking realization of Insurance amount, compensation and costs.

The averments in the complaint can be briefly summarized as follows:

The complainant and her minor daughter aged 17 years had joined the Family Health Plan of United India Insurance Company. The period of policy was from 31.1.2007 to 30.1.2008 and the policy coverage was Rs.50,000/- as per the terms of the policy for inpatient treatment in hospitals which are in the network of the Insurance Company, the payment will be made directly by the company and in respect of the other hospital, the claim is to be submitted separately. The policy was taken through one Ravi Pillai who was the Insurance agent. On 24.9.07 during the subsistence of the policy the complainant’s daughter was laid up with Pilonidal and was admitted by the AM hospital, Karunagally which is a hospital coming under the net work of the Insurance company. On the date of admission itself the necessary documents such as policy card etc. were entrusted to the hospital. On the previous day of discharge the Manager of the hospital informed that for the disease of her daughter insurance claim is not admissible.. When contacted it was informed that it was not the illness but the fact that the treatment was undergone during the first year of the policy that is material and therefore the insured is not entitled to the benefits. Therefore, the complainant had to remit Rs.6,673/- which, the complaint is entitled to get as per the terms of the insurance policy.. Since the opp.party has not paid above sum to the hospital in accordance with the terms of policy it amounts to deficiency in service and unfair trade practice. Hence the complaint.

The opp.parties filed a joint version contending, interalia, that the complaint is not maintainable either in law or on facts. The complaint is bad for the non-joinder of necessary parties as the daughter of the complainant and the Family Health Plan Limited were not impleaded in the party array. At the time of joining the policy conditions were narrated to the complainant. The disease alleged will not come within the ambit of this Health Insurance policy. No surgery for the alleged disease in question will become necessary unless the said disease was a pre-existing one for a very long period. The complainant has suppressed this material fact which amounts to violation of policy conditions and therefore the policy will become automatically void. The insured was admitted in the AM Hospital for the period from 24.9.07 to 29.9.07 with complaint of pain and bleeding from perianal region . The hospital authorities requested for cashless treatment and the said Family Health Insurance plan Ltd. denied cashless facility since the 1st year exclusion is not ruled out. So far the complainant has not submitted the claim paper as per the condition of the scheme. The opp.parties have no intention to make any deficiency in service or unfair trade practice. There is no deficiency in service on the part of the opp.parties. Hence the opp.parties prays to dismiss the complaint.

Points that would arise for consideration are:

1. Whether the complainant is entitled to get the insurance amount?

2. Whether there is deficiency in service on the part of the opp.parties?

3. Reliefs and costs.

For the complainant PW.1 and 2 are examined. Ext.P1 to P9 are marked

For the opp.parties DW.1 is examined. Ext D1 to D3 are marked.

POINTS;

Policy is admitted. Hospitalization and surgery of complaint’s daughter is also not disputed. The grievances of the complainant is that despite the fact that there was a valid insurance policy the claim was repudiated by the opp.party which is deficiency in service.

A perusal of the evidence and records in this case would show that the claim was objected mainly on two grounds . The 1st ground is that the illness was pre-existing one which was not disclosed and so there is material suppression and the 2nd ground is that the illness comes within the exclusion clause 4[3] of the policy.

Though the contention that the illness of the insured is a pre-existing one is raised no attempt is made by opp.parties 1 to establish that contention. No medical evidence was adduced to establish that the illness was a pre-existing one. Regarding material suppression also there is no material worth believable. The proposal form furnished by the insured is not produced for reasons best known to the opp.parties. So the 1st contention that the illness of the insured is a pre-existing one and that there is material suppression are unfounded.

The opp.parties failed to substantiate the 2nd contention also. According to the opp.parties the illness of the insured comes under exclusion clause 4[3] and in respect of such diseases no coverage under Ext.P1 is available for the 1st 2nd years. According to the opp.parties the illness of the insured comes under sinusitis and allied diseases which comes under exclusion clause 4[3] . The contention of the complainant is that the illness for which the insured had undergone surgery is pilonidial sinus which has no connection with sinusitis and allied diseases. Ext.P5 discharge summary also shows that the illness diagnosed was pilomidial sinus and the surgery undergone was excision abices. Even DW.1 in cross examination admitted that this disease is not mentioned in exclusion clause 4 [3]. The burden to establish by adducing cogent medical evidence that the above disease would come under exclusion clause 4[3] is on the opp.parties which they failed to discharge.

Another contention is that the insured has not submitted claim form. It is argued by the complainant that they have joined the cashless settlement scheme in which the network hospital bills are settled by the Insurance company directly Ext. D3 shows that the hospital wherein the treatment was under gone is a net work hospital and that the cashless settlement was denied. So as argued by the complainant no separate claim need be forwarded to opp.party 1.

Another contention is that the complainant failed to implead the Family Health Plan Limited who is the claim settling agent and so the complaint is bad for non joinder or necessary parties. Even though they are the claim settling agents and a formal party non impleadment of them in our view is not fatal to the complainant. On a careful consideration of the entire evidence is this case we are of the view that the insured is entitled to get the expenses incurred by her for hospitalization and surgery. Points found accordingly.

In the result the complaint is allowed, directing the opp.parties to pay the complainant Rs.6673/- being the expenses incurred by her for the treatment of her minor daughter with interest @ 12% per annum from 29.9.2007 till payment. The opp.parties are also directed to pay Rs.2500/- towards compensation and costs. The order is to be complied with within one month from the date of receipt of this order.

Dated this the 10th day of December, 2009.

DATED THIS THE 30th DAY OF DECEMBER 2009.
COMPLAINANT

BY-SRI.K.NAGABHUSAN RAO,

SRI.JAVED PATEL,

ADVOCATES, BELLARY.
//VS//


SRI. R. VENKATANARAYANA,

S/O R. VENKATARAMAIAH,

AGRICULTURIST, No.F-7, 1st FLOOR,

GAVIKRUPA APARTMENTS, 3RD MAIN,

PARVATHI NAGAR, BELLARY.


RESPONDENT



BY-SMT. P.RAMA DEVI,

ADVOCATES, BELLARY.


THE DIVISIONAL MANAGER,

M/S UNITED INDIA INSURANCE CO. LTD

DIVISIONAL OFFICE, P.B.No.40,

RAMAKRISHNA COMPLEX, 1ST FLOOR,

RAGAVACHARI ROAD, BELLARY.
//JUDGEMENT//
Sri. S.M.Reddy, President.

This is the complaint filed by above named Complainant under Sec-12 of C.P.Act, 1986 against the Respondent claiming damages caused to his vehicle under Insurance Policy along with compensation for deficiency of service.


2. The brief facts of the Complainant’s case are that;
He is the registered owner of Matiz Car bearing Regn.No.KA-34/M-4779 and same was insured with Respondent under Private Car Package Policy bearing No.241100/31/07/01/00002465 for indemnifying the loss of accidental damages including own damages and said Policy was in force for a period of one year w.e.f. 17/07/2007 to 16/07/2008. The said vehicle of Complainant met with an accident while said Car was being taken in reverse direction and sustained damages during the subsistence of the said Policy. The said fact of accident was reported to the Respondent. The Respondent asked the Complainant to get the damages repaired and place the claim application with estimate and bills after due inspection by the Surveyor of Respondent Company for assessment of loss. The Complainant got his Car damages estimated at Rs.12,920.40 through a qualified Mechanic and submitted the same along with claim application. But the Respondent Surveyor has estimated the loss as Rs.8,033.74. The Complainant could settle the bills of his mechanic after due concession for Rs.9,000/- which he spent actually towards the said repairs and accordingly the Complainant submitted all original bills to the Respondent to settle his claim for the said amount. The Respondent instead of settling the claim immediately, after considerable delay finally offered the Complainant only a sum of Rs.2,500/- . But the Complainant did not accept the said offer as he is legally entitled to entire amount spent by him towards repair of Car, or at least he is entitled to the amount of loss as assessed by the Surveyor of Respondent for a sum Rs.8,033/-. Hence, there is deficiency of service on the part of the Respondent. Hence, the Complainant is constrained to file this complaint. The Complainant has claimed Rs.8,033/- towards damages caused to his vehicle as estimated by the Surveyor of Respondent and he has also claimed a sum of Rs.1,000/- towards mental agony and Rs.1,000/- towards deficiency of service with future interest @ 18% p.a. with cost.



3. The Respondent has appeared and filed his Written Version wherein the Respondent has admitted that the Complainant had insured the said Car with the Respondent. But liability of Respondent to indemnify the insured owner is subject to the terms and conditions of the Policy, provisions of M.V. Act and Rules. The Respondent has called upon the Complainant to prove that he is registered owner of the vehicle as on the date of accident and as on the date of filing of the complaint. According to the said Respondent, the said vehicle has not met with any accident, but the doors of the said vehicle were damaged due to the negligence of Complainant himself. However, on hearing about the accident the Respondent has appointed a Surveyor to assess the loss and said Surveyor has assessed the loss as Rs.8,033.74 and submitted his report on 12/04/2008. But however after deducting the salvage, policy imposed excess and compulsory excess, the Surveyor assessed the net loss as only Rs.2,530/- and accordingly the Respondent has offered to settle the claim for the said amount, but it is the Complainant who has refused to accept it. So there is no deficiency of service on the part of Respondent. The Respondent has to process the claim within the framework of the Policy terms and conditions and the legal viability of the claim and the Respondent is ready and willing to settle the claim of Complainant for Rs.2,530/- within the framework of Policy conditions. On these grounds, it is stated that the claim of Complainant is not tenable in law and same is liable to be dismissed.



4. The Complainant in support of his case has filed his affidavit evidence as P.W.1 and got marked documents Ex.P.1 to Ex.P.6 and closed his side. The Respondent has filed the affidavit evidence of its Administrative Officer as R.W.1 and got marked documents Ex.R.1 to Ex.R.3 and closed his side. Both parties have filed their written arguments. Oral arguments heard.

5. In the instant case, there is no dispute that the Car of the Complainant was validly insured with Respondent and during the subsistence of the said Policy the said vehicle sustained certain damages in respect of which the Complainant has put forward his claim for Rs.9,000/- which amount according to him is actually spent for repair of Car. It is not in dispute that, the Respondent had appointed a Surveyor for assessment of loss and after inspecting the vehicle, the Surveyor has assessed the loss and submitted his report as per Ex.P.5 and Ex.R.2. Based on that report the Respondent has offered to settle the claim for Rs.2,530/- which is not accepted by the Complainant. So he has approached this Forum stating that at least he is entitled to get Rs.8,033/- as assessed by the Surveyor of Respondent towards loss. So according to him there is deficiency of service on the part of the Respondent. Therefore, the only dispute between the parties before this Forum is regarding quantum of damages which the Complainant is entitled to get towards damages caused to his vehicle. Thus, the only point that would arise for our consideration is;

1.
What is the quantum of damages which the Complainant is entitled towards damages caused to his vehicle?

2.


What order?

//POINTS//


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


Point No.1:


For Rs.8030.00.

Point No.2:


As per final order.


//REASONS//
Point No.1: -

7. It is no doubt true that, the Complainant is not placed any evidence on record to show that he has spent Rs.9,000/- towards repairs of the said vehicle as stated by him except his own affidavit evidence. But however he has restricted his claim to Rs.8,033.74 which is the loss as assessed by the Surveyor appointed by the Respondent vide his report at Ex.P.5 and Ex.R.2. According to the learned counsel for Complainant that the alleged deduction of Rs.5,500/- out of Rs.8,033.74 towards salvage, excess cannot be accepted as it is without any basis. But according to the learned counsel for Respondent that the Policy has clearly stated that the imposed excess Rs.5,500/- is deducted and accordingly the Surveyor has calculated the net loss as Rs.2,530/- for which the Respondent has offered to settle the claim.

8. It is important to note that, the Surveyor has not stated in his report vide Ex.P.5 and Ex.R.2 as to what is the basis for deducting a sum of Rs.5,500/- out of the loss assessed by him as Rs.8,033.74 He has simply deducted Rs.5,500/- out of the said amount as excess for which absolutely there is no basis. The Respondent has also not pointed out the Clause of Insurance Policy which provides for deducting that much of amount towards excess. Ex.P.2 and Ex.R.1 are the Private Car Package Policy issued by the Respondent in which we do not find any such Clause which provides for such deduction that too a sum of Rs.5,500/- out of the loss assessed by the Surveyor as Rs.8,033.74. Therefore, in the absence of any specific provision for deducting so much of amount the offer made by the Respondent to settle the claim only for Rs.2,530/- cannot be accepted. Hence, the Complainant is entitled to recover a sum of Rs.8,030/- with interest @ 9% p.a. from the date of complaint till realization from the Respondent and the Complainant is also entitled to recover a sum of Rs.1,000/- towards deficiency of service and mental agony and Rs.1,000/- towards cost.

Point No.2: -

9. In view of findings on Point No.1, we pass the following;


//ORDER//
The Complaint filed by the Complainant is partly allowed with cost.

The Complainant is entitled to recover a sum of Rs.8,030/- (rupees eight thousand and thirty only) with interest @ 9% p.a. from the date of complaint i.e. 15-09-2009 till realization from the Respondent.

The Complainant is also entitled to recover a sum of Rs.1,000/- (rupees one thousand only) towards deficiency of service and mental agony and Rs.1,000/- (rupees one thousand only) towards cost of proceedings from the Respondent.

The Respondent is hereby granted two months time from the date of this Judgment to make the payment of entire amount and interest as stated above to the Complainant.