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Thread: United India Insurance

  1. #16
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    CONSUMER COMPLAINT NO.07/2008.
    Friday, the 17th day of April, 2009.
    Between:
    1. Yedireswarapu Subba Lakshmi,
    W/o. Subba Rao, 50 years,
    C/o. M.Somalingam, H.B.Colony,
    Amalapuram.

    2. Yedireswarapu Sheshagiri Rao,
    S/o. Subba Rao, 17 years,
    C/o. M.Somalingam, H.B.Colony ,
    Amalapuram. ...Complainants.

    A N D

    1. M/s United India Insurance Company Limited,
    Rep. by its Divisional Manager, 206 and 207,
    2nd Floor, Saptagiri Towers, Begumpet,
    Hyderabad.

    2. M/s Andhra Bank, Credit Card Division,
    Head Office, Koti, Hyderabad.

    3. M/s Andhra Bank, Credit Card Division,
    Donkarai, Branch Office, Autonagar,
    Rajahmundry, E.G.District. … Opposite parties.


    This case is coming 20.03.2009 for final hearing before this Forum and upon perusing the complaint, version of the opposite parties and other material papers on hand and upon hearing the arguments of Sri K.Sesha Rao, advocate for the complainants 1 and 2 being represented by Sri B.Ramesh, advocate for the 1st opposite party, Sri S.S.Chalam, advocate for the 2nd opposite party and Sri K.V.V.S.Narayana Swamy, advocate for the 3rd opposite party and having stood over for consideration till this day, this Forum has pronounced the following.
    ORDER


    (PER SRI A. MADHUSUDANA RAO, MEMBER)

    This is a complaint filed by the complainants under Section 12 of the Consumer Protections Act to direct the opposite parties to pay jointly and severally the actual claim amount of Rs.2,00,000/-, interest of Rs.34,000/- from date of accident till filing of the complaint, to pay Rs.1,00,000/- damages, award subsequent interest at 12% from the date of filing this complaint and to award costs.

    2. The case of the complainants as set out in the complaint is that the 1st complainant’s husband by name Y.Subba Rao, Gr.1 Sarang in A.P.Genco Limited, Donkarai died on 25.12.2005 at 10.30 P.M while he was attending to his official duty in his own Ambassador car as the car was kid and fell down into the dam. The deceased died due to severe injuries and shock. The complainants reported the matter to the SHO, PS, Donkarai and also to the 1st and 2nd opposite parties herein for Visa Gold Card benefits and claims as the 1st complainant’s deceased husband having Visa Gold Card No.4511500025759146. The 1st opposite party issued Personal Accident Form to the 1st complainant with a request to return the same duly signed by complainant/nominee and counter signed by the 2nd opposite party with all related documents. Unfortunately, on 16.09.2006 the 2nd opposite party intimated the complainants that the insurance claim was not entertained and not admitted and the same was repudiated. The 1st opposite party herein repudiated the claim vide their letter dt 08.09.2006 and not discharged its duty in terms clauses of the policy, which amounts to deficiency of service on the part of the opposite parties. Hence, this complaint.
    2.The opposite parties filed their version. The 1st opposite party insurance
    Company denied all the material allegations as they are not true and correct and there is no deficiency of service on their part as per policy terms and conditions. Further, stated that there is no contract between the complainants and the 1st opposite party. It is further submitted that the complainants failed to satisfy the terms and conditions of accident policy and the burden lies with the complainants to establish the existence of policy. Further, it is submitted that the said policy is applicable to accidental death only and it is not applicable to natural death or suicidal case. Further, as per the post mortem examination report of the deceased head including the brain has been described as normal and internal organs has been described as congested which do not correspond to the cause of death mentioned. Injury is mentioned in the report or superficial and do not suggest any major impact or force and such injuries are not sufficient to cause death. Dimensions and colour of the injuries have not described in the report. As per the observations made in the report none of the internal organs or the tissues have been damaged expect for a cut injury on the lower lip. It is further submitted that the PM report clearly stated that the death is caused by shock due to road traffic accident and not due to injuries. The said insurance policy is for death due to accidental, violent and visible means and shock is not a violent and visible means. Hence, there is no policy coverage for the same and the claim is repudiated. It is further submitted that the complainants are not entitled for Rs.3,34,000/- including damages and interest as there is no policy coverage due to natural death of the deceased. The complainants are failed to comply the terms and conditions of the policy and there is no deficiency of service on the part of the 1st opposite party and hence prays the Hon’ble Forum to dismiss the complaint.
    The 2nd opposite party filed its version and the same was adopted by the 3rd opposite party denying all the main and material allegations in the complaint as they are not true and correct and the complaint is not maintainable either in law or on facts. This opposite parties submits that they are no way connected with the allegation made by the complainants to pay the compensation on account of death of the deceased. It is further submitted that, it is true that the deceased was the credit card holder of the bank and the same is in tie up with the 1st opposite party insurance company whose liability is tied up with 1st opposite party by virtue of terms and conditions of the policy issued in favour of the credit card holder. It is further submitted that in view of the fact that there is substantial law involved in deciding the quantum of the fact and substantial proof is required to be adduced from evidence of various officials who actively involved in he present case the matter may be referred to civil court of competent jurisdiction in order to have justice with equality and good consciences. It is also denied that the deceased is operating the credit card in particular branch, further the complainants are put to strict proof of death of the deceased under the relevant records. The petitioner is put to strict proof of all the allegations. Hence, this opposite parties prays the Hon’ble Forum to dismiss the complaint with costs.
    4. Heard both the parties. Both sides filed their written arguments.
    5. Points to be considered in this case are that;

    1. Whether there is any deficiency in service on the part of the opposite parties?
    2. Whether the complainants is entitled for the claim amounts and other
    reliefs asked for? If so, to what extent?
    6. Exs.A.1 to A.7 are marked on behalf of the complainants and Ex B1 to B7 are marked for the opposite parties.
    7. Admitted facts in this case are that the deceased Y.Subba Rao husband of the 1st complainant herein was holder of Visa Classic Gold Card No.4511500025759146 issued by the 2nd and 3rd opposite parties under Ex B3. The said Visa Classic Card Holders were under coverage of insurance for Rs.2,00,000/- in case of accidental death of such card holders with the 1st opposite party herein and the tie up for the said Tailor Made Group Personal Accident Policy is in between the 1st opposite party and with the 2nd opposite party under Ex B5. The deceased was died on 25.12.2005 vide Ex B4 during the currency of the said Group Personal Accident Policy. The complainants claim for accidental benefits on the death of deceased was repudiated by the 1st opposite party vide their letter dt 16.09.2006 under Ex B7.
    7.POINT NO.1: The case of the complainants is that the 1st opposite party
    repudiated their claim for Rs.2,00,000/- arose under Visa Classic Gold Card obtained by the deceased, husband of the 1st complainant and father of the 2nd complainant, who died due to road accident on 25.12.2005.
    Whereas, the 1st opposite party contended that the repudiation was done because the deceased died of “shock-due to road traffic accident” and not due to injuries caused in accident and the policy is only applicable to accidental death and it is not applicable to natural death or suicidal case. Hence, they repudiated the claim of the complainant’s and there is no deficiency of service on their part.
    On perusal of the entire record it is found that as per Ex A5 FIR a case was registered by the SHO, Donkarai, E.G., under section 304(A) IPC on 26.12.2005 and as per that report the deceased’s wife i.e the 1st complainant compiled that at the time of her visit to the accident site along with villagers she found that blood is flowing from the driver seat and her husband was found died. Further, it was found in the inquest report under Ex A6 prepared by the SHO, Donkarai in which it was stated that the body was found with closed eyes, blood strains from mouth and blood strains from right nose. It is further reported that the deceased sustained a small abrasion in right arm pit, a small contusion is present on the left side of the chest wall, a cut on the lower lip, a small abrasion injury on the left wrist joint and some bruises with bumps. It is further found that the inquest report also confirmed that the deceased was died because of accident only as per the circumstantial evidence at the accident spot.
    Further, it is observed in the Ex A7 POSTMORTEM EXAMINATION REPORT dt 27.12.2005 that some internal parts of the deceased were intact and some parts were intact but congested. It is further observed that in the said PME Report the doctor who conducted the examination found some external injuries also on the body of the deceased and the same were coincide with the injuries mentioned in the inquest report under Ex A6.
    The case of the 1st opposite party is that as per their Group Personal Accident Policy vide Ex B1 “the company shall pay the insurance if any of the incurred person shall sustain any bodily injury resulting solely and directly from accident caused by external, violent and visible means only”. Further, as per the opinion dt. 04.09.2006 obtained from one Dr.T.Mahendra Reddy in which the doctor opined that injuries described in the Panchanama (inquest) and postmortem examination report are tallied and further stated that the injuries are possible in accident but they are not sufficient to cause death in ordinary course of events. It is further found in that opinion the doctor stated that the cause of death opined by the doctor who conducted PME is not clear and shock due to road traffic accident does not convey any meaning as to the exact Patho-Physiological events, further the injuries are superficial and do not suggest any major impact or force and dimensions and colour injuries not described. Further it is found that colour photographs and previous medical history of the deceased could have been useful to the exact cause of death. There is no affidavit filed by this doctor who gave his opinion to this effect. So, the opinion given by the doctor under Ex B2 also not conclusive.
    The complainant filed two citations delivered by the apex commissions in support of his case.
    1.2004, CPJ- I page 287 in United India Insurance Co. Ltd Vs Mehar Chand “in which it was held that injury is not necessary in every accident” citing earlier decision reported in 2003 -6 CLD 480 (SCDRC, GUJ) in Nerendra Kumar Hamirbhai Bhadiya Vs LIC of India that if accident is proved merely because there was no injury to the victim or damage to the motorcycle the accident cannot be disbelieved.
    2.1986-2002 Consumer 6397 (NS) in United India Insurance Co. Ltd Vs Smt Gurdev Kaur it was held that as no evidence was led by the insurer in support of its plea and there is no evidence by way of affidavit filed by the witnesses.
    The above citations filed by the complainants are rightly suitable to the present context and facts of the case.
    With the discussion held supra and under the facts and circumstances of the case and on perusal of the above cited judgments, we are in the considered opinion that as the exact cause of death was not ascertained, but as per the circumstances and opinion expressed in PME report that the deceased died due to shock-in road traffic motor accident. So, we have no other option but to considered the death of the deceased is only due to the accident as per the Exs.A5, A6 and A7 which are official documents and the 1st opposite party failed to prove contra. Further we consider the death was occurred due to shock in the process of accident and can be deemed as accidental death. So, the complainants here in are entitled for the claim amount of Rs.2,00,000/- preferred by them with 1st opposite party on the death of the deceased husband of the 1st complainant and father of the 2nd complainant.
    The 2nd and 3rd opposite parties are only the facilitators to the said insurance policy and whose liability is tie up with the 1st opposite party by virtue of terms and conditions of the policy and they did their part. Hence, we cannot attribute any kind of deficiency in service on the part of the 2nd and 3rd opposite parties and the claim against this opposite parties is not sustainable.
    9.POINT NO.2: In the result, the complaint of the complainants is allowed directing the 1st opposite party insurance company to pay the claim amount of Rs.2,00,000/- (Rupees Two Lakhs only) with interest @ 9% p.a from the date of repudiation i.e 16.09.2006 till realization and further directed to pay an amount of Rs.2,000/- (Rupees Two Thousand only) towards costs.

  2. #17
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    ORDER

    By Sri. K. Gheevarghese, President:

    The complaint filed under section 12 of the Consumer Protection Act 1986.


    The facts led to the complaint in brief is as follows:- The Complainant availed a mediclaim policy from the 1st Opposite Party and the 2nd Opposite Party acted as an agent of it. The coverage of the policy was from 14.3.2007 to 13.3.2008. The risk covers the amount of Rs.1,05,000/- as the sum assured by the insurer.


    2. The Complainant had undergone treatment for chest discomfort on 13.1.2008 and later on the same day he was transferred and had undergone treatment at MIMS Hospital Kozhikode. The treatment for the Complainant was for ST elevation myocardial infarction, old inferior wall myocardial infarction double vessel coronary artery disease, ventricular dysfunction and diabetics mellitus type 2. The Complainant was given treatment and he was discharged from the MIMS Hospital on 19.1.2008. Again on the 2nd time the Complainant was admitted on 21.1.2008 in the same hospital and had undergone treatment and discharged on the same day and was advised the Complainant for treatments afterwards. The treatment of the Complainant had the expenses of Rs.1,42,549/- in the MIMS hospital other medical expenses of Rs.5,356/-. On the date of discharge Rs.1,772/- was also paid by the Complainant towards the charge of treatments. The 1st Opposite Party is the insurer who is legally liable to compensate the Complainant the amount assured for the medical treatments. The Opposite Party in contrary repudiated the claim of the Complainant on the ground that the Complainant had pre-existing disease which was suppressed. The repudiation on this ground is absolutely illegal and the same is a deficiency in service on the part of the Opposite Party. There may be an order directing the Opposite Parties to:-
    (a) Pay the sum assured along with cumulative bonus of the mediclaim policy No.101601/48/
    06/20/00002750 to the Complainant with interest.
    (b) Pay a sum of Rs.25,000/- towards the cost and compensation along with other reliefs
    found to be deemed fit.


    3. The Opposite Party filed version contenting the claim of the Complainant. The sum up of the version is as follows:- The Complainant is a known case of coronary artery disease old inferior wall (M1) (1990) and known diabetic patient before the commencement of the risk. The Complainant had pre-existing disease which was not disclosed instead it was kept suppressed and that is against the terms of policy. There is no deficiency in service on the part of the Opposite Party. The Complainant is not entitled for the cumulative bonus of the mediclaim with interest along with cost and compensation, the complaint is to be dismissed with cost to the Opposite Party.


    4. The points in consideration are:

    1. Whether the repudiation of the claim of the Complainant amount to deficiency in service.
    2. Relief and cost.

    5. Point No.1:- The Complainant filed proof affidavit, Ext. A1 to A5 are marked. The Opposite Parties filed proof affidavit interalia contenting the allegation of the Complainant, Ext.B1 to B4 and Ext.X1 series are marked. The case of the Complainant is that the Opposite Party repudiated the claim of the Complainant to reimburse the medical expense covered in the risk of insurance by the Opposite Party. Whereas the Opposite Party contented that the claim was repudiated on the ground of preexisting disease, which was suppressed and not disclosed when the insured got access into the policy. The major aspect which is to be taken into consideration whether the Complainant suppressed the fact of pre-existing disease when he
    got access into the policy. Ext.X1 series which are three in numbers are the case sheet of the referred hospital MIMS Hospital, Calicut. The treatment of the Complainant in three period comprises the Ext.X1 series. In the history of patient illness in Ext.X1 series disclosed that the Complainant has myocardial infraction since 1990. The Ext.B2 is the certificate issued by consultant cardiologist in MIMS Hospital, Calicut in this certificate the probable date of commencement or manifestation on the history of illness is recorded as 1990. The Complainant is having the known case of coronary artery disease and old inferior wall myocardial infarction in 1990. From these documents it is to be considered that the Complainant when got access into the policy had been under treatments for cardiac complaint since 1990. At the time of his access into the policy the Complainant had the diabetic complaint that too was also not disclosed. From the very aspect of this it is to be considered that the repudiation of the policy on the ground suppression of the existing disease cannot be interfered and it does not amount to deficiency in service. The repudiation of the claim is reasonable and the point No.1 is found accordingly.


    6. Point No.2:- The Complainant had not disclosed the existing disease at the time of his inception to the policy. The Opposite Party has not done any deficiency in service. The detail discussion of point No.2 does not arises. In the result the complaint is dismissed, no order as to cost.

  3. #18
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    ORDER By Jayasree Kallat, Member:


    The complainant is the owner of Motor Cycle bearing registeration No.KL-11/K-2317 which was purchased by him by availing a loan from Canara Bank, Koyilandy branch. The vehicle was insured with the opposite party by the bank at the time of availing the loan. On 12-8-02 this vehicle along with all its papers were stolen. The complainant lodged a complaint before the Kasaba Police Station on 23-8-02. The Police started investigation. The complainant lost all the papers including the R.C., Tax Disc and the insurance policy pertaining to the vehicle. The complainant had approached the opposite party with the registeration number and Chassis number of the vehicle. The vehicle was insured with the opposite paprty by the Canara Bank. When the complainant approached the opposite party, the opposite party denied the insurance of the vehicle. All the documents, which were kept in the vehicle, were stolen. It took some time for the complainant to obtain the information as to the particulars of the insurer. The complainant believed that the Police would succeed in tracing the vehicle. The said vehicle was validly insured with the opposite party. The Police later on intimated to the complainant that the vehicle could not be traced. The complainant again approached the opposite party and submitted a claim for recovery of the sum insured from the opposite party as the vehicle was not traceable. The complainant received a letter dated 1-6-04 from the opposite party stating that the claim cannot be entertained since the complainant had failed to inform the opposite party immediately about the theft of the vehicle. The complainant can claim insurance only after the police submits the report to the effect that the vehicle is untraceable. In this case the police has reported that the vehicle is undetected only on 17-2-04. This was the reason why the complainant preferred the claim belatedly after the theft of the vehicle. It is illegal, and against public policy on the part of the opposite party to deny the claim made by the complainant for the loss of the vehicle. Opposite party did not respond even after letter sent by the complainant to opposite party. The act of the opposite party in not honouring the claim of the complainant is deficiency of service on the part of opposite party. Hence the complainant filed this petition claiming an amount of Rs.42400/-, which is sum insured, plus compensation of Rs.5000/- and a cost of Rs.1500/-.

    The opposite party filed a version denying allegations in the petition except those matters, which are specifically admitted. There is no default or negligence or deficiency of service on the part of opposite parties. Opposite parties denies the averments in Col.3 and 4 of the complaint. The alleged theft of the motorcycle KL-11/K-2317 was intimated to the opposite party only on 26-3-04. There was a long gap between the date of theft that is 12-8-02 and the date of intimation that is 26-3-04. This is in violation of the policy condition No.1. Hence the opposite party is not liable to pay any amount under the insurance policy. The condition of the insurance policy is to be strictly adhered. The complainant ought to have intimated the theft in the year 2002 August itself. The claim is barred by limitation. The opposite party is not liable to pay any amount claimed by the complainant. Opposite party prays to dismiss the complaint.

    The point for consideration is whether the complainant is entitled for the relief sought?

    PW1 was examined and Ext.A1 to A6 were marked. No oral evidence adduced by opposite party. Ext.B1 was marked on opposite party’s side.

    The case of the complainant is that he was the owner of the vehicle bearing registeration No.KL-11/K-2317. The complainant had availed a loan from Canara Bank. At the time of availing the loan the bank had insured the vehicle with the opposite party. The vehicle was stolen along with all the documents on 12-8-02. A complaint was lodged before the Kasaba Police Station regarding the theft of the vehicle on 23-8-02. Complainant had lost all the papers including R.C., Tax Disc, Insurance policy along with the vehicle. As the complainant lost the documents pertaining to the vehicle he had approached the opposite party with the Registeration No., Chassis No. etc. of the vehicle. The opposite party did not respond. The complainant had to approach the Canara bank who had insured the vehicle. According to th complainant the police took years to report the vehicle untraceable. Opposite party has raised the contention that the complainant had delayed in reporting the matter to the opposite party and hence the complainant is not eligible for the claim as it is barred by time limitation. The Forum has been convinced by the complainant that the long delay occurred because the police had taken about years to report the vehicle untraceable. So there was no negligence on the part of the complainant. The complainant had valid policy during the time of theft. Hence in our opinion the complainant is entitled to get the relief. Opposite party had received the premium from the complainant. In such a case the opposite party is liable to indemnify the loss of the complainant as the complainant being a valid policy holder. The counsel for the complainant has produced the decision of 2008 (3) KLT 332 (SC National Insurance Co. Ltd. Vs Nitin Khandelwal ) “ the question raised is whether in a case of theft of vehicle, insurer can repudiate the claim on the ground of violation of policy conditions. Supreme Court held that in case of theft of vehicle, breach of condition is not germane.” Taking all these facts into consideration we are of the opinion that the complainant is entitled for the claim after depreciation as mentioned in the policy. In this case the year of manufacture of the vehicle is 2000. As per Ext.B1- Policy limit of liability of the amount of the company’s liability Under Sec. II-1(ii ) in respect of any one claim or series of claims arising out of one event up to Rs.44000/-. The vehicle was lost on 12-8-02 ie. within two years of purchase of the vehicle. According to the opposite party the schedule of depreciation for fixing I.D.V. of the vehicle exceeding one year to not exceeding two years is 20%, which is applicable in this case. Hence we are of the opinion that the complainant is entitled to get an amount of Rs.33920/- which is the amount after deducting 20% depreciation from Rs.42400/- the sum insured.

    In the result the petition is allowed and opposite party is directed to pay an amount of Rs.33920/- to the complainant within one month from the date of receiving the copy of the order along with cost of Rs.500/-.

  4. #19
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    Present: Smt.Seena.H, President
    Smt.Preetha.G.Nair, Member
    Smt.Bhanumathi.A.K, Member

    C.C.No.80/2007


    Radhakrishnan,
    Embanath House,
    Peruvemba (P.O),
    Palakkad. - Complainant
    (By Adv.K.K.Menon)
    Vs

    United India Insurance Company Ltd.
    Palakkad Office represented by its
    Manager,
    10/290, G.B.Road,
    Palakkad. - Opposite party
    (By Adv.C.Mohanram)
    O R D E R

    By Smt.Seena.H, President


    The case of the complainant in brief is as follows:


    Complainant's daughter had purchased a new Hero Honda Passion Motor cycle. Vehicle was insured with the opposite party under policy No.101201/31/06/01/00001830 with effect from 11/05/2006 to 10/05/2007. The policy was a comprehensive policy additionally loaded with a premium of Rs.50 under the head Personal Accident coverage. Subsequently vehicle was registered. The motor cycle was driven by petitioner's son who was having a valid driving licence and complainant's daughter used to sit a pillion rider and go to office. On 17.6.2006 the vehicle met with an accident and complainant's daughter who was sitting as a pillion rider sustained head injury and succumbed to death. Her brother, who is having valid driving licence was driving the vehicle at that time. Complainant applied for claim under personal accident coverage. But opposite party on 17/5/2007 has sent letter repudiating the claim stating the insured does not confirm with conditions 2nd under section III of the policy. According to the complainant, vehicle was driven by his son who is having a valid driving licence. The act of opposite party is clear breach of indemnity offered by the company by accepting Rs.50/- as premium for personal accident coverage and severe deficiency of service on their part. Hence the complainant is claiming Rs.1,00,000/- being the claim amount under personal accident coverage and Rs.25,000/- as compensation and cost of proceedings.
    Opposite party filed version contending the followings. Opposite party admits the policy. As per the terms and conditions of the policy issued, in order to get personal accident coverage for owner-driver, the following conditions are to be satisfied.
    a. The owner-driver is the registered owner of the vehicle insured.
    b. The owner-driver is the insured named in the policy and
    c. the owner-driver holds an effective licence.


    According to opposite party, the insured was not holding effective driving licence to drive the vehicle involved in the accident. Moreover the driver is not a registered owner of the insured and the driver is not the owner and insured named in the policy. Since there is violation of policy conditions, opposite party is not liable to pay any amount to the complainant as per the policy. Immediately on receiving the claim form, opposite party issued a repudiation letter stating true facts. As the claim was repudiated on valid reason there is no deficiency of service on the part of the opposite party.


    Proof affidavit was filed by both parties. Exts.A1 to A5 and Ext.B1 was marked on their respective sides.


    Now the issues for consideration are;

    1. Whether there is deficiency of service on the part of opposite party? and
    2. If so, what is the reliefs and costs?



    Points 1 & 2: Opposite party has admitted the policy issued to the daughter of the complainant. The only reasons stated by the opposite party in repudiating the claim of the complainant is that the insured does not hold an effective driving licence to drive the motor vehicle. As per their policy condition stated in Ext.B1, in order to get personal accident coverage for owner-driver, owner-driver should possess effective licence to drive the vehicle.


    Perusing the conditions stipulated in Ext.B1, we are of the view 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. Complainant's daughter is the insured and registered owner of the vehicle. Vehicle was driven by the brother of the insured who is having a valid driving licence. This is evident from Exts.A1 and A2. Hence the act of opposite party in repudiating the genuine claim of the complainant amounts to deficiency of service.
    In view of the above discussions we allow the complaint. Opposite party is directed
    to pay an amount of Rs.1,00,000/- (Rupees One lakh only) being the claim amount and Rs.6,000/- (Rupees Six 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 the order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realisation.

  5. #20
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    ORDER BY SRI.K. VIJAYAKUMARAN, PRESIDENT

    This is a complaint for realization of insurance amount.

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

    The complainant is a retired L.P. School Headmistress. The complainant has taken a Insurance policy from the 2nd opp.party through one Mr. Rav eendran Pillai who is an agent of the opp.parties. As per the terms and conditions of the policy if the complainant contracts any decease or illness which required hospitalization the expenses as impatient will be paid by the opp.party subject a the maximum of Rs.15,000/- While the policy was in force the complainant sustained headache and she approached M/s. Upasana Hospital, Kollam where she was admitted on 9.3.2004 and was treated as an inpatient and she was discharged on 11.3.2004. Again she was admitted in the same hospital and for better treatment she was referred to Amrita Institute of Medical Science, Cochi . In the Amritha Institute of Medical Science she was admitted on 16.3.2004 and after examination and investigation she was diagnosed as Mild Falicine Meningioma for which she underwent a surgery known as Left Parietal f Parasagiffal Craniotamy and Simpson’s grade II Excision on 19.3.2004 and she was discharged on 26.3.2004. In the above hospital lthe complainant incurred an expenditure of Rs.43,242/- towards hospital charges. When the complainant filed a claim under the policy the same was repudiated by the opp.parties on the grounds that the disease for which she had undergone treatment was pre-existing. Hence the complaint.

    The opp.party filed version contending, interalis, that the complainant is not maintainable either in law or on facts. This Forum has no territorial jurisdiction to entertain this complaint. The complainant has approached the Forum with unclean hands . The definition complaint, complainant, Consumer Dispute service as defined in section 2[1] of Consumer Protection Act do not cover the claim made out in the complaint. The opp.party had issued an insurance policy covering the complainant and her family members under Universal Health Insurance Scheme for a period from 26.12.2003to 25.12.2004. As per the coverage given under the policy the insured persons are eligible to get a medical reimbursement for hospitalization and treatment expenses to a maximum of Rs.15,000/- subject to the terms and conditions governing the policy. The opp.party has issued the Universal Health Insurance Policy to the complainant fully trusting the declaration given in the proposal form submitted by her which shall form the very basis of the insurance contract. The complainant has given incorrect answer or particulars for the questionnaires given in the proposal form. The complainant infact was suffering from the symptoms of Mid Falcine Meningioma about 1 year prior to the commencement of the policy as the medical history issued from Amritha Institute of Medical Science. The complainant was suffering from gradual onset of generalized headache, which was progressing over the past two months associated with inability on walking before her admission at Upasana Hospital on 9.3.2004. Apart from that the complainant had a further episode of blackout about one year back before her admission at Upasana Hospital for which she had undergone investigation. The above facts were honestly disclosed by the complainant to the doctor at Amrita Institute of Medical Science land Research Center . As per the medical history revealed by the complainant before the treated doctor it is evident that she was suffering from gradual onset of generalized headache before it was aggravated over the past two months prior to her treatment at Upasana Hospital. The complainant obtained the insurance policy commencing from 26.12.2003 only and she got admitted at Upasana Hospital, Kollam on 9.3.2004, . According to the admission made by the complainant herself before the treated doctor at AIMs, she was suffering from severe headache for a period at least from 9.1.2004 and prior to that she was suffering from generalized headache for a considerable period. So the complainant was suffering from the disease for which she had treated much prior to her joining in the insurance scheme and the said material facts has been deliberately suppressed by the complainant in the proposal form submitted by her before the opp.party. As per condition No.4[2] of the Universal Health Insurance Policy any disease contracted by the insured person during the first 30 days from the commencement date of the policy is excluded. As per exclusion clause the company shall not be liable to make any payment under the policy in respect of any expenses incurred by the insured person relating to the diseases which have been in existence at the time of proposing the insurance. Pre-existing means the complications arising from pre-existing disease will be considered part of that pre existing condition. In the instant case the complainant was fully aware of the fact that she was suffering from the diseases of neurological problems at the time of proposing for the insurance and as such the opp.party is not liable to make any payment to the complainant as per the specific exclusion clause in the policy. The opp.party has repudiated the claim of the complainant on genuine land valid ground . There is no deficiency in service on the part of the opp.parties. Hence the opp.party prays to dismiss the complaint.

    Points for consideration are::
    1.Whether the complainant is entitled to get 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 is Examined. Ext.P1 to P9 are marked.
    For the opp.parties DW.1 is examined. Ext. D1 to D6 are marked.

    Points:
    As a matter of fact policy is admitted . The complainants case is that she was admitted in the Amritha Institute of Medical Sciences in connection with her illness and when she preferred the claim the same was repudiated as per Ext.P8 which is illegal.


    The opp.parties repudiated the claim on two grounds. Firstly on the ground that the complainant was suffering from pre existing disease. According to the opp.parties the complainant herself has stated in Ext.P9 to the doctor at the Amritha Institute of Medical Sciences and Research Centre that she had an episode of black out one year prior to that date but she has suppressed the same while giving Ext.D2. Proposal Form which is a deliberate suppression of material fact which would vitiate the policy. It is to be pointed out that on investigation nothing wrong was noticed and no treatment has been taken by the complainant for the same . If black out was in connection with any disease naturally some treatment or medication would have been necessary. So the omission to mention black out in Ext.D2 proposal Form in our view has no significance and it cannot be said that there is any material suppression. Apart from that Note [b] of exclusion clause 4.2 of Ext. D1 says that exclusion 4-1 and 4-2 shall not apply if the insured has not taken any consultation treatment or mediccation

    The second ground of repudiation is that the claim is inadmissible as it is hit by exclusion clause 4.2 of the policy. Exclusion clause 4.2 says that any disease contracted by the insured during the 1st 30 days from the commencement date of policy the company shall not be liable to make any payment under the policy. It is argued by the learned counsel for the opp.parties that in Ext.P9 the complaint herself has stated to the doctor that she was having generalized headache for 2 months with inability of walking prior to her admission in the AIMSRC. On 16.3.2004. Prior to going to AIMSRC the complainant had gone to Upasana Hospital, Kollam on 9.3.2004 and was discharged on 11.3.2004 for the headache and was again readmitted on 15.3.2004 and thereafter she was referred to Amritha Institute of Medical Scie4nce and Research Centre. So according to the learned counsel for the opp.parties the on set of headache is at least from 9.1.2004 and the policy has been commenced from 26.12.2003 which means that the insured has contracted the disease within 15 days of the commencement of policy and as such the claim is hit by exclusion clause 4.2 As pointed out earlier the complainant herself has stated to the doctor that she was suffering from gradual onset of generalized headache which was progressing over the past 2 months associated with inability to walk PW.1 has no case that the insured has stated so by any mistake. Not even a suggestion was made to PW.1 that it is due to any inadvertent mistake. Therefore we are of the view that so we fee that we shall not be justified in interfering with the repudiation. Point found accordingly.

  6. #21
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    1
    Smt.Vidya S.Bhandary,
    W/o Late Suresh Bhandary,
    “Sai Kripa Nilaya”,
    B.H.Road, Balakur,
    Kundapura Taluk,
    Udupi District.

    (Sri S.P.Nayak, Advocate for the Complainant)
    …………. Complainant
    Versus

    The Branch Manager,
    United Indian Insurance Co. Ltd.,
    Bridge Road, Balmatta,
    Mangalore- 575 002.

    (Sri Dinesh B.Shetty, Advocate for the Opposite Party)
    Opposite Party
    WRITTEN BY SRI P.C.GOPAL, PRESIDENT

    1. The Complainant has filed this complaint alleging deficiency in service against the Opposite Party and prayed for a direction to the Opposite Party to pay to the Complainant Rs.1,00,000/- being the amount of personal accident cover with interest, plus compensation and cost of the proceedings, etc in all a sum of Rs.2,29,671/-
    2. The case of the complainant is that she is the wife of one Suresh Bhandary, who died in a road accident at 13.30 hours on 25.07.2007 near Koteshwara Panchayath Office, NH 17, Kundapura Taluk, Udupi District. The deceased was owner of motor cycle bearing registration No.KA 20 S 9308. On that crucial day the deceased was on his way from his home towards Dr.N.R.Acharya Memorial Hospital, Koteshwara to meet his sister-in-law. While driving the vehicle, the deceased was holding valid LLR licence. It is ruled by the law courts that LLR is also a valid licence.
    Contd…….2
    3. The Complainant submits that the accident in question occurred due to the rash and negligent driving of Tanker bearing No.KA 04 AB 8899 by its driver in very high speed without looking over the traffic rules. The deceased was driving his vehicle on the extreme left side of the road, slowly by following traffic rules. The deceased was not offender of the accident but it is the driver of the tanker who has been charge sheeted as offender.

    4. After the death of her husband as aforesaid, the Complainant lodged claim before the Opposite Party for payment of compensation as per the contract of insurance. The Opposite Party illegally, high handedly and baselessly repudiated the claim on the ground that the deceased was not holding valid driving licence and that no “L” plates were hung on the front and rear of the vehicle. It is submitted that the accident did not occur for that reasons and therefore the reasons assigned by the Opposite Party in repudiating the claim is legally unsustainable. The Opposite Party has clearly admitted that vehicle of the deceased was insured with it and the contract of insurance provides for payment of compensation for personal accident cover. The repudiation as done by the Opposite Party vide their letter dated 07.01.2008 is not legally feasible.

    5. The Complainant submits that from the above narrated true facts, it is conclusively proved that repudiation of the claim as done by Opposite Party is baseless and the reason assigned by them is only a myth. Therefore, the Opposite Party is guilty of deficiency in service as stated above. The deceased was a “consumer” of insurance services and the Complainant as the legal heir of the deceased is also consumer within the meaning of the C.P. Act. Hence this complaint.

    6. After service of notice of the complaint the Opposite Party appeared through the counsel and filed the version contending that the complaint is false and frivolous and not maintainable either in law or on merits.

    7. The Opposite Party denied that the Complainant is the wife of one Suresh Bhandary who died in a road accident at 13.30 hours on 25.7.2007 at Koteshwara. The Opposite Party admits that the deceased Suresh Bhandary was the owner of Motor Cycle bearing Regd. No.KA 20-S/9300 and he was died on 25.7.2007 at Koteshwara on Road Traffic Accident and also admits that at the time of accident the deceased was holding learner’s licence.
    Contd…….3
    8. The Opposite Party denies that the accident in question occurred due to rash and negligent driving of another vehicle bearing Regd. No.KA04 AB 8899 by its driver in very high speed overlooking traffic rules. The Opposite Party admits that the chargesheet filed against the driver of the aforesaid tanker. Opposite Party admits that after the accident and death of her husband the Complainant lodged claim before the Opposite Party for payment of compensation as per the contract of Insurance. But the Opposite Party denies that the Opposite Party illegally and baselessly repudiated the claim on the ground that the deceased was not holding valid licence and that no “L” plate were hang on the front and rear of the vehicle. The Opposite Party further denies the allegation that the alleged accident did not occur for that reason and that the reason assigned by the Opposite Party is repudiating the claim is unsustainable.

    9. The Opposite Party further submits that deceased Suresh Bhandary was the Regd. owner of the Motor cycle bearing Regd. No.KA20 S 9308. The said vehicle had insured with the Opposite Party vide policy No.070803/31/06/01/00003752 and the same is valid from 14.12.2006 to 13.12.2007. The Opposite Party admits that on 25.7.2007 while the deceased was traveling was rider in the said vehicle alongwith his daughter met with an accident and died on the spot. It is also admitted that at the time of the accident deceased insured himself drove the said vehicle and he was possessed the LLR licence to ride the said vehicle. It is also admitted that after his death the Complainant has lodged claim before the Opposite Party to get insurance amount under the policy contract. On perusal of the records submitted by the Complainant and after applying its mind under the terms of the policy in contract the Opposite Party has rightly repudiated the claim and the same is intimated to the Complainant on 7.1.2008 by the regd. post.

    10. The Opposite Party submits that as per the terms of the policy, the personal accident cover for owner-driver is subject to the owner-driver who holds an effective driving licence in accordance with the provision of Central Motor Vehicle Rules, 1989 at the time of the accident. In the instant case the rider was holding learner licence to drive the said vehicle. The Learner licence issued to deceased Suresh Bhandary contains as follows:
    “WARNING
    The Attention of the holder of this licence is drawn to Rule 3 of Central Motor Vehicle Rule 1989 which prohibits from driving any motor vehicle unless he has besides him a person duly licenced to drive the vehicle and in every case, the vehicle carries L plates both in rear of the vehicle.”
    Contd……..4
    11. The Leaner’s Licnece issued to aforesaid Suresh Bhandary subject to the above condition and it was mentioned as warning to the holder of the licence. Consequently, the aforesaid Suresh Bhandary could not have driven the vehicle without following said Mandatory condition stated in the driving licence. When the licence itself was issued subject to the said condition, the holder cannot drive the vehicle in violation of the said condition. In this case, the policy issued also made it mandatory for the insured to follow the said rule strictly. The policy also said that the COVER IS SUBJECT TO RULE 3 OF THE CENTRAL MOTOR VEHICLE RULES 1989. The Insured while riding the vehicle had admittedly violated the condition there was no instructor sitting beside him and further he had not hanged any ‘L’ Plates both in the rear side of the said vehicle as per the terms of the licence which incorporated in the Licence. Hence admittedly the rider-owner-insured had violated the terms of the cover subject to which policy was issued.

    12. In view of the violation of the terms of the policy the Opposite Party has repudiated the claim of the Complainant as per law. There is no deficiency in service on the part of the Opposite Party.

    13. It is submitted that the Complainant has already received compensation under Motor Vehicle Claims from insurer of the aforesaid tanker which involved in the said accident in MVC No.1021/2007. A sum of Rs.4,50,000/- with this Opposite Party and her injured daughter also got the compensation. There is no cause of action arose for the Complainant against this Opposite Party and the complaint is filed with an ulterior motive. Hence Opposite Party prayed for the dismissal of the complaint.

    14. The Complainant has produced 6 documents which are marked as Ex.C-1 to Ex.C-6 and the Opposite Party has produced 5 documents which are marked as Ex.R-1 to Ex.R-5. Parties have filed affidavit, interrogatories and reply affidavit. We heard the arguments of both sides.

    15. Now the points that arise for our consideration are as follows:
    1) Whether the Opposite Party is justified in repudiating the claim of the Complainant?
    2) Whether the Opposite Party has committed deficiency in service?
    3) Whether the Complainant is entitled for the relief claimed?
    4) What Order?
    Contd…….5
    Point No.1:
    16. It is an admitted fact that the Complainant is the wife of one Suresh Bhandary who died in a road accident at 13.30 hours on 25.7.2007 at Koteshwara and said deceased Suresh Bhandary was the owner of the motor vehicle bearing regd. No.KA20 S 9300 and he died on 25.7.2007 at Koteshwara on road traffic accident. Deceased Suresh Bhandary was the regd. owner of the motor cycle bearing regd. NO.KA20 S 9308 and the said vehicle had insured with the Opposite Party vide policy bearing No. 070803/31/06/01/00003752 and the same is valid from 14.12.2006 to 13.12.2007. It is an admitted fact that on 25.7.2007 while the deceased was traveling as a rider on the said vehicle alongwith his daughter met with an accident and died on the spot. It is also admitted that at the time of the accident deceased insured himself was riding the said vehicle and he possessed learning licence to ride the said vehicle

    17. The counsel for the Complainant argued that a person holding learner licence is entitled to drive the vehicle and the aforesaid vehicle was driven by the husband of the Complainant. The policy was in force, under the contractual obligation, the insurance company is liable to pay the compensation as per the policy condition. The repudiation by the Opposite Party is not justified. The counsel for the Complainant produced a citation reported in Accidents Claims Journal 2004 (Volume I), SLP(C) No.9027 of 2003, .he referred the head note which reads as under:
    Motor Vehicles Act, 1988, Section 149(2) (a) (ii) – Motor insurance – Learner’s licence – Liability of Insurance company – Whether insurance company would be liable to satisfy an award if the vehicle was driven by a person holding a leaner’s licence at the time of accident – Held : Yes; person holding learner’s licence is entitled to drive a vehicle.

    18. Opposite Party argued that as per the terms of the policy the PERSONAL ACCIDENT COVER FOR OWNER/DRIVER is subject to the owner-driver holds an effective driving licence in accordance with the provision of Central Motor Vehicle Rules, 1989 at the time of the accident. In the instant case the rider was holding learner’s licence to drive the said vehicle. The learner’s licence issued to the deceased Suresh Bhandary states in bold letter as follows:
    “WARNING
    The Attention of the holder of this licence is drawn to Rule 3 of
    Central Motor Vehicle Rule 1989 which prohibits from driving
    any motor vehicle unless he has besides him a person duly licenced
    to drive the vehicle and in every case, the vehicle carries L plates
    both in front and rear side of the vehicle.”
    Contd…..6
    19. Said Suresh Bhandary ought not to have driven the vehicle without following the said mandatory condition stated in the driving licence. When the licence was issued subject to the said condition the holder cannot dire the vehicle in violation of the said condition. In this case the policy issued was also made it mandatory of the insured to follow the said rules strictly. The policy also states that the cover is subject to rule 3 of the Central Motor Vehicle Rules 1989. The insured while driving the vehicle had admittedly violated the conditions as there was no instructor setting beside him the police records shows only his 5 years old daughter sitting beside him. Further he had not hanged any ‘L’ Plate both the rear and front side, as per the term which incorporated in the licence. Hence admittedly rider-owner-insured had violated the terms of the cover subject to which policy was issued, the repudiation by the Opposite Party is justified.

    20. As per the contract of Motor Insurance ‘ Any person including the insured can entitle to drive the insured vehicle provided that the person who is driving holds an effective and valid driving licence to drive the category of the vehicle insured. It is an important condition incorporated in the Motor Insurance Policy. The terms of the contract shall be binding on both the parties. Moreover Section 3 of Motor Vehicle Act, 1939 reads as under:
    “No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to himself authorizing him to drive the vehicle and no person shall so drive a motor vehicle as a paid employee or shall so drive transport vehicle unless his driving licence specifically entitled him so to do”

    He relied upon the following citations to substantiate his contention
    1) 2007(4) KCCR 2662
    2) 2006(1) 107 KCCR 107
    3) 2008 ACJ 2287
    4) 2006(1) KCCR 323
    5) 2008 ACJ 2860
    6) 2008 ACJ 2161
    7) III(2000) CPJ 59
    8) II(1996) CPJ 111

    21. We have gone through the entire records placed before this Forum by the parties and in view of the above submissions, we observe that deceased Suresh Bhandary was the owner-rider-insurer, while he was riding the vehicle he met with an accident and died on the spot. Ex.C-2 is the copy of the FIR with the statement of Harish Bhandary. On going through aforesaid document it is clear that on the date of accident Suresh Bhandary was driving the vehicle and his 5 years aged daughter Savinaya was alongwith him as a pillioner and in the said
    Contd……7
    accident Suresh Bhandary was expired on the spot and his daughter had sustained injuries on her left hand. This fact is not disputed. The only reason for repudiation the claim of the Complainant is that, as per the provision in rule 3 of the Central Motor Vehicle Rules, 1989 which prohibits him from driving any Motor Vehicle unless he has besides him a person duly licenced to drive the vehicle and in every case the vehicle carries ‘L’ Plates both in front and rear side of the vehicle and the rider late Suresh Bhandary had not complied with the provision laid down in rule 3 of the Central Motor Vehicle Rules, 1989. Hence the claim lodged by the Complainant is repudiated. In the present case, there was no “L” Plate on the front and rear of the vehicle and there was no person alongwith him duly licenced to drive the vehicle in question. Therefore, there is clear violation of the terms of the policy. As per the contractual obligation and according to the terms of the policy the Complainant is not entitled for the claim. We hold that the Opposite Party is justified in repudiating the claim of the Complainant Hence, we answer the point No.1 in the Affirmative.

    Pont No.2
    22. In view of the affirmative answer to point No1, we hold that there is no deficiency in service on the part of the Opposite Parties. Hence, we answer the Point No.2 in the Negative. :

    Point No.3 and 4:
    23. In view of the Affirmative answer to point No.1 and Negative answer to point No.2, we hold that the Complainant is not entitled for the reliefs. Hence, we answer the point No.3 also in the Negative.

    24. In the result, we pass the following:
    ORDER
    Complaint is dismissed. Parties to bear their own costs.

  7. #22
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    Syed Ajaz Ahamed
    S/o. Syed Basha Sab,
    Aged about 25 years, Complainant
    R/o. Akkirampura,
    Kunigal taluk
    (By advocate Sri.K.S.Lokesh)

    AND

    1.The Senior Divisional Manager,
    United India Insurance Co. Ltd,
    Divisional office, BH Road, Opposite parties
    Tumkur
    2.The Branch Manager,
    Cauvery Kalpatharu Grameena Bank,
    Akkirampura,
    Koratagere taluk
    (OP No.1- by advocate Smt.B.R.Latha)
    (OP No.2- by advocate Sri.G.Sathyanarayana Reddy)


    ORDER

    This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act for short)

    2. Through this complaint, the complainant prays for an award and order against the Opposite Parties (hereinafter called as the OPs for short) to direct the 1st OP to pay damages of Rs.97,836/- with interest at 12% per annum from the date of accident till the date of realisation in respect of autorikshaw vehicle bearing Reg.No.KA-06-A-6509.

    3. The facts given rise to institute the complaint may be summarized as thus:
    It is his case that, he is an absolute owner of goods carrying three wheelers autorickshaw bearing Reg.No.KA-06-A-6509 and he had availed vehicle loan from the 2nd OP by hypothecating the said vehicle in question. The said vehicle was insured with the 1st OP vide policy No.071400/31/07/01/00007300 and valid from 10-9-07 to 9-9-08 and the said vehicle was insured in the name of the M/s K.G.B., Akkirampura-A/c Syed Ajaz Ahamed.

    4. It is further submitted that, the said vehicle met with an accident on 4-4-2008 near Beladara, Tumkur-Koratagere Road, Kora hobli, Tumkur taluk, when hit by a Canter bearing Reg.No.KA-06-A-7700 which was driven in a rash and negligent manner at a high speed from the opposite direction. As a result of the accident, the said vehicle was badly damaged. The Kora police had lodged FIR under Section 279 of IPC against the driver of the Canter vehicle in Cr.No.43/2008.

    5. It is further submitted that, the complainant has shifted the vehicle to MKS Auto Centre, Shirani Road, Tumkur on 14-4-2008 by toeing through a hired vehicle and paid Rs.300/- as hire and toeing charges. After that, the complainant has intimated to the 2nd OP and as well as to the 1stst OP has referred the matter to its authorised surveyor and inspected the damaged vehicle and submitted his initial survey report to the 1st OP. The owner of MKS Auto centre has estimated cost of Rs.91,996/- for repair of the said vehicle. OP. The 1

    6. It is further contended that, the 2nd OP being a bank which financed the complainant had orally requested the 1st OP on several times to settle the claim. But the 1st OP has failed to settle the claim on one pretext or the other and postponed the claim settlement. That on 17-5-2008 the 2nd OP wrote a letter to the 1st OP for early settlement of the claim. Instead of settling the claim, on 18-7-2008 the 1st OP has sent a repudiation letter to the 2nd OP stating that the driver of the vehicle was not having driving licence to drive LMV (Transport), but only had DL to drive Autorickshaw (Cab) and hence it is unable to settle the claim.

    7. It is further submitted that, the RTO, Tumkur has issued driving licence to the complainant to drive “Autorickshaw (Cab)”. Immediately, after receipt of the untenable repudiation letter dated 17-8-2008, the complainant has approached the RTO Inspector and enquired about the effectiveness of the DL issued by RTO. The said authority told that, the DL so issued is to drive both passenger auto and as well as goods carrying autorickshaw and as such the D.L. issued by RTO, Tumkur was effective and valid DL to drive the vehicle in question.

    8. It is further submitted that, the 1st OP has committed act of deficiency of service to the complainant by intentionally delaying to settle the claim. The complainant is a very poor businessman and has availed vehicle loan from the 2nd OP. Due to the accident, the complainant could not pay the installments to the 2nd OP and has become a defaulter. Apart from this burden, the complainant has to pay landing charges worth of Rs.20/- per day to MKS auto centre. It is alleged that, on account of a financial crises, he could not meet the expenses of repairs of the vehicle. The damaged vehicle is still today parked in auto garage.

    9. The complainant has claimed the damages as here under:
    a) Spares Rs.68,996/-
    b) Labour expenses Rs.23,000/-
    c) Toeing charges Rs.300/-
    d) Land parking charges Rs.5540/-
    e) Total Rs.97,836/-.
    Hence, this complaint.

    10. The OPs who have been notified of the complaint entered appearance through their counsel and resisted the same.

    11. The gist of the objections is as follows:
    In the objections filed by the 1st OP, it is contended that, the complaint is not maintainable either in law or on facts and the same may be dismissed. This OP while admitting the fact that, the complainant is the absolute owner of the goods carrying autorickshaw bearing Reg.No.KA-06-A-6509 and insured the vehicle with them under policy No.071400/31/07/00007300 which was valid from 10-9-07 to 9-9-08, however contended that it was insured in the name of M/s.KGB, Akkirampura A/c Syed Ajaz Ahamed.

    12. It is further contended that, the allegations made in Para No.3 and 4 of the complaint are not within in his knowledge and he came to know of the accident only after the complainant submitted the necessary documents.

    13. It is further contended that, on scrutiny of the papers regarding motor accident claim under the policy No.071400/31/07/01/ 00007300-KA-06-6509, it was observed that, the person who was the driver and owner of the alleged vehicle had no valid driving licence to drive goods vehicle. Therefore, as per the policy condition, the complainant had not satisfied the mandatory requirement of law. In the instant case, the owner Mr. Syed Ajaz Ahamed who was also the driver at the time of accident was eligible to driver “Autorikshaw cab” but not LMV (transport) which was driven by him at the material point of time. Immediately this OP has sent repudiation letter dated 18-7-2008 to the complainant stating that, the driver of the alleged vehicle was not having driving licence to drive LMV (Transport) but only having DL to drive Autorickshaw (cab). Therefore, the 1st OP has repudiated the claim. This OP while emphatically denying the other complaint averments as false and untenable interalia pleaded that, the complainant is not having valid categorical DL which is mandatory as per MV Act as well as under the terms and conditions of the policy. Accordingly, he prays for dismissal of the complaint.

    14. The 2nd OP in its objections, while admitting the fact that the complainant is an absolute owner of the goods carrying 3 wheeler autorickshaw bearing Reg.No.KA-06-A-6509 has contended that the complainant had availed vehicle loan from this OP by hypothecating the said vehicle and it was insured with the 1st OP vide policy No.071400/31/07/01/00007300. The said policy was valid from 10-9-07 to 9-9-08. The said vehicle was insured in the name of M/s. KGB Akkirampura – A/C Syed Ajaz Ahamed. It is further admitted that, this OP has orally requested the 1st OP on several occasional to settle the claim and also admitted that, the RTO, Tumkur has issued driving licence to the complainant to drive “Autorickshaw (Cab).

    15. It is further contended that, other complaint averments are not within the knowledge of this OP. This OP further submitted that, this OP has sanctioned and disbursed loan to the complainant for the purpose of purchase of autorickshaw. The said autorickshaw was hypothecated to this OP as security. It is further submitted that, the said vehicle was insured with the 1st OP covering all the risks. The grievance of violation of policy conditions has to be answered by the 1st OP alone and not by this OP. This OP has also requested the 1st OP to settle the claim amount of the complainant. Inspite of request, the 1st OP has not settled the claim amount. There is no deficiency of service from this OP. Hence, as against this OP, the complaint is not maintainable and liable to be dismissed. Accordingly, he prays for dismissal of the complaint.

    16. In support of the case, the complainant and the 1st OP have filed their affidavits and they have also pressed into service of several documents. We have heard the learned counsels appearing for the parties. We have also examined the materials available on records.

    17. The questions that arise for our considerations are:
    1)Is there any deficiency of service by the OPs?
    2)Is the complainant entitled for the reliefs as claimed?

    18. Our findings on the above questions are here under.
    Point No.1: Yes
    Point No.2: As per order

    REASONS

    19. Before proceeding to embark upon our discussions on the aforesaid points formulated for consideration, it is necessary to state a few undisputed facts which would minimize our discussion. The fact that, the complainant is the owner of the vehicle in question and possessed driving licence to drive the autorickshaw; the vehicle in question was hypothecated in favour of 2nd OP towards the loan raised on the said vehicle, and also the fact that the vehicle in question met with an accident and as a result it was badly damaged are concerned, there is no dispute. Similarly, it is not in dispute that, the complainant did inform the 1st OP and the 2nd OP to settle the claim; the 2nd OP inturn being a financer had requested 1st OP to honour the claim of the complainant. However, the claim came to be repudiated on the question of not possessing a valid DL by the complainant. Therefore, let us proceed to examine, as to whether there is any merit in the contention of the 1st OP.

    20. A careful perusal of the driving licence issued by the competent authority in favour of the complainant, it is seen that, he was authorised to drive autorickshaw cab with effect from 9-2-2005 and it was renewed upto 18-3-2011. In the renewal endorsement, it is specifically mentioned by the licensing authority that, he was authorised to drive autorickshaw transport with effect from 19-3-2008 to 18-3-2011. Therefore, from this document, it is seen that, on the date of accident i.e. on 4-4-2008 he was not authorised to drive autorickshaw transport. From the copy of the DL produced by the complainant it is seen that, he was authorised to drive the autorickshaw cab with effect form 9-2-2005 to 8-2-2008. The complainant has not produced subsequent renewal of the driving licence. However, from the document produced by the 1st OP, it is seen that, driving licence was renewed from 19-3-2008 to 18-3-2011. As stated earlier, from these documents, it is clear that, he was authorised to drive autorickshaw cab only. From the insurance policy, it is seen that, the said vehicle bearing Reg.No.KA-06-A-6509 was insured with the 1st OP. The insurance policy was issued under the caption “GOODS CARRYING (3-WH AND PEDAL CYCLES)-PUBLIC CARRIERS PACKAGE POLICY, Policy No.: 071400/31/07/01/ 00007300 vehicle No.KA-06-A-6509”. At this juncture, it is relevant note that, nowhere in the complaint it is alleged that, the vehicle in question was not used contrary to the terms and conditions of the police nor the 1st OP has placed any materials to show that, the vehicle in question was used as transport vehicle at that, relevant point of time. From the copy of the FIR, it is seen that, the allegation are as follows:


    21. Therefore, when admittedly the vehicle in question was insured with the 1st OP covering all the risks, it is fundamental obligation of the 1stst OP himself it is seen that, he was authorized to drive autorickshaw transport with effect from 19-3-2008 to 18-3-2011. OP is to satisfy the claim of the complainant. But instead of entertaining the claim of the complainant, they repudiated the claim on the ground that, the complainant had not possessed the categorical driving licence to drive LMV transport. As stated earlier from the document produced by the 1
    22. Therefore, it cannot be said that, the complainant had no driving licence or he had driven the vehicle contrary to the terms and conditions of the policy. In the light of these facts, the judgments relied upon by the learned counsel appearing the 1st OP reported in 2008 ACJ 2161, 2009 ACJ 666 are not squarely applicable to the facts of the case. The facts and circumstances of those cases are totally different from the present case. Therefore, under the circumstance of the case, we hold that, the 1st OP is liable to satisfy his contractual liability.
    23. In so far as, the claim of the claimant for a sum of Rs.97,836/- on heads is concerned, there is no dispute from the other side. That apart from materials placed on records, the complainant has also proved his claim as genuine and not an unrighteous one.

    24. In so far as the claim against 2nd OP is concerned, we find no materials to conclude that the said OP has committed deficiency in service. It is worthwhile to note that, the 2nd OP did request the 1st OP settle the claim of the complainant. When he has promptly acted to the demand of the complainant, we find no deficiency in service. Therefore, the claim against the 2nd OP is liable to be rejected. Accordingly, it is rejected. In the result, we proceed to pass the following:
    ORDER
    The complaint is allowed with costs directing the 1st OP to pay a sum of Rs.97,836/- and cost of Rs.1000/- within 8 weeks of this order, failing which, a sum of Rs.97,836/- shall carrying on interest at the rate of 10% per annum from the date of accident, that on 4-4-2008.

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    COMPLAINANT Sri. Kumsi Rama, S/o. Late Huchuraya, Aged about 56 years, Retired Police Officer, Karnataka State Police Department, C/o. No. 31, 3rd Main Road, Hanumantha Nagar, Bangalore – 560 019. Advocate (R. Jayaprakash)

    V/s.

    OPPOSITE PARTY

    1. M/s. United India Assurance Company Limited, Divisional Office 011100, II Floor, Sudarshan Building, New No. 27 (Old No. 14), Whites Road, Chennai – 600 014. Advocate (A.M. Venkatesh)

    2. The Manager, IOB, Jayanagara Branch, Bangalore. Advocate (H.V. Nagaraja Rao)


    O R D E R


    This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay the medical bill under the health care policy with interest and pay compensation of Rs.5,00,000/- and for such other reliefs on an allegations of deficiency in service.
    The brief averments, as could be seen from the contents of the complaint, are as under: Complainant got the health policy issued by the OP.1 along with the policy of IOBHC+ issued by OP.2. He enjoyed the said policies from 2003 to 2006. Due to the communication gap he did not continue the said policies after the expiry on 30.12.2006, but he took the policy on 07.03.2007 which was inforce up to 06.03.2008. On 02.05.2007 complainant undergone surgery for PAN CREATD JEJUND STOM at Bangalore Hospital. He was an inpatient and finally he was discharged on 23rd May 2007. Towards the said surgery and hospitalization he incurred expenses of Rs.1,81,979/-.
    After the discharge he made claim to the OP to settle the medical bills, it went in vain. Then he got issued the legal notice on 08.09.2008. Again there was no response. Due to the negligence and hostile attitude of the OP, complainant for no fault of his, is made to suffer both mental agony and financial loss. Under the circumstances he felt the deficiency in service. Hence he is advised to file this complaint and sought for the relief accordingly.


    2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. It is contended by OP.1 that there is no renewal of the earlier policy. The policy which complainant took on 07.03.2007 is a fresh policy. Hence he is not entitled for the earlier benefits. At the time of taking up of the fresh policy complainant is expected to disclose about the pre-existing disease, but he failed to do so. The discharge summary issued by the Bangalore Hospital shows he is a known case of chronic pancreatitis and a DM for the last 1 year and he has also donated the left kidney in the year 2006 itself. Though complainant is aware of the same, he failed to mention the pre-existing disease when he took the fresh policy. Hence OP is not obliged to settle the said medical expenses as it is not covered under the policy. The complaint is devoid of merits. Among these grounds, OP.1 prayed for the dismissal of the complaint.


    3. OP.2 filed the separate version mainly contending that it issued IOBHC+ policy placing on the information furnished by the complainant. The complaint is bad for misjoinder of necessary parties. Complainant is not entitled for the policy benefits when there is no continuity or renewal of the old policies starting from the year 2003. The policy which complainant took for the year 2007 is a fresh policy. Complainant undergone a major surgery within a period of 2 months from the date of taking of fresh policy suppressing the existence of the serious ailment and donation of a kidney. The approach of the complainant is not fair and honest. There is no deficiency in service on the part of the OP.2. The complaint is devoid of merits. Among these grounds, OP.2 prayed for the dismissal of the complaint.


    4. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP’s have also filed the affidavit evidence. Then the arguments were heard.


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


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


    R E A S O N S


    7. At the outset it is not at dispute that the complainant has taken IOBHC+ policy issued by the OP.2 and OP.1 having covered the insurance under the category of health policy from 01.01.2003 to 30.12.2006. Now it is the grievance of the complainant that due to some unavoidable circumstances as he was out of station he could not renew the policy before expiry date that is 30.12.2006. He took the policy on 07.03.2007 which is inforce up to 06.03.2008. The documents to that effect are produced. It is further contended by the complainant that on 02.05.2007 he got admitted at Bangalore Hospital for surgery of PAN CREATD JEJUND STOM, he was operated then he was discharged on 23.05.2007. The documents to that effect are produced.


    8. It is further contended by the complainant that for the said treatment he has spent nearly about Rs.1,81,979/-. The discharge summary and hospital bills are produced. Then he made a claim to the OP’s to settle the bills, but it went in vain. Hence he got issued the legal notice on 08.09.2008. The copy of the legal notice and postal acknowledgement are produced. Again there was no response. The evidence of the complainant appears to be very much natural, cogent and consistent, which finds full support from the contents of the undisputed documents. There is nothing to discard his sworn testimony. As against this unimpeachable evidence of the complainant, the defence set out by the OP appears to be defence for defence sake, may be to shirk their responsibility and obligation.


    9. It is contended by the OP.2 that the policy obtained by the complainant on 07.03.2007 is a fresh policy, hence there is no continuity or renewal of the earlier policies. One thing is admitted that complainant took IOBHC+ policy from OP.2 and health policy from OP.1. We have gone through the said policy copies. The further allegation of the OP is that though complainant is aware of certain ailment that too with regard to donation of one kidney and he being suffering from chronic pancreatitis and DM, he failed to mention the same in his fresh proposal. When it is the health care plus policy an obligation lies on the OP to subject the complainant for the thorough medical examination before accepting his proposal. But that step is not taken by the OP. They simply issued the policy, collected the premium and when the question of payment of medical bills aroused, they have come up with this untenable defence.


    10. The approach of the OP’s does not appears to be as fair and honest. There is a fault committed by the OP’s in not subjecting the complainant for thorough medical examination. In addition to that when OP says that the policy dated 07.03.2007 is a fresh policy, then there should be a fresh proposal. What is the information complainant has furnished in the said proposal about his health conditions or his previous history is not known. The proposal form is not produced by the OP. If OP produced the proposal form and if there is no mention about the so called donation of the kidney and he being a chronic pancreatitis patient with DM, then there would have been some meaning in the defence set out by the OP. But in absence of production of such documents, the bare and vague allegations of the OP rather alone cannot be believed. We do not find force in the defence set out by the OP’s. The repudiation made by the OP’s appears to be unjust, improper and without due application of mind.



    11. Complainant has taken the said treatment within the policy coverage period and when the sum assured is for Rs.2,00,000/- with regard to IOBHC+ status and health care policy scheme, it would have been more fair on the part of the OP to settle the bill immediately. OP’s has not disputed the expenses incurred by the complainant and the documents produced by him. When that is so, the hostile attitude of the OP’s must have naturally caused both mental agony and financial loss to the complainant, that too for no fault of his. We are satisfied that there is a proof of deficiency in service on the part of the OP’s. Hence they are jointly and severally liable to reimburse the medical expenses. Accordingly we answer point nos.1 and 2 and proceed to pass the following:


    O R D E R The complaint is allowed in part. OP’s are jointly and severally directed to settle the claim for Rs.1,81,979/- and pay the said amount to the complainant along with a litigation cost of Rs.1,000/- within 4 weeks from the date of communication of this order. Failing in which complainant is entitled to claim interest at the rate of 12% p.a. on the said amount from June 2007 till realization along with a litigation cost.

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    COMPLAINT NO. 208 OF 2009

    P.R.Ravi Kumar,
    S/o B.Ramaiah,
    R/at No.153, Puttayyanna Agrahara,
    Shakaladevanapura Post,
    Madure Hobli, Doddaballapur Taluk,
    Bangalore Rural District.
    …. Complainant.
    V/s

    The Manager,
    United India Insurance Company Ltd.,
    No.25, ShankarNarayanBuilding,
    M.G.Road, Bangalore-1..
    …. Opposite Party

    -: ORDER:-
    This complaint is for a direction to the Opposite Party to pay Rs.1,13,455/- towards reimbursement of repair charges with interest thereon at 24% Per Annum from the date of claim, to pay compensation of Rs.20,000/- towards deficiency in service, Rs.30,000/- towards mental agony, pain and sufferings, on the following grounds;-
    The complainant who is the owner of the vehicle bearing No:KA-43-640 had insured the same with Opposite Party for the period from 01.09.2007 to 31.08.2008. The vehicle met with an accident on 20.09.2007 and a complaint in that regard was lodged with Dabbas Pet Police in Crime No.131/2007. The vehicle was towed from the place of accident to M/S PRERANA MOTORS, Harisinakunte. The Opposite Party was informed about the accident and thereupon Mr.Krishna Murthy – a surveyor was deputed to assess the damage caused to the vehicle. M/S PRERANA MOTORS raised a quotation for Rs.2,08,427/- towards repair charges. On confirmation of reimbursement of the entire cost of repair by the Opposite Party including Rs.4,000/- towards towing charges, the complainant instructed M/S PRERANA MOTORS to carry out the work. After completing the repair work, M/S PRERANA MOTORS raised invoice for Rs.1,78,238/-. The complainant submitted the claim form with all the necessary documents. The Opposite Party issued cheque for Rs.1,03,422/- as against Rs.1,78,238/- the actual expenditure incurred for repairs to the vehicle. The complainant accepted the payment under pretest. But when questioned, the Opposite Party assured to reimburse the balance amount within 10 days. Thereafter in spite of number of personal visits and phone calls, the Opposite Party failed to pay the balance amount. He issued legal notice dated:19.07.2008. But the Opposite Party did not give any reply. Hence, the complaint.
    2.In the version, the contention of the Opposite Party is as under:-
    The complainant had taken motor vehicle policy in respect of the vehicle bearing No.KA:43-640 for the period from 01.09.2007 to 31.08.2008. The vehicle met with an accident on 20.09.2007 and after the accident, the complainant took the vehicle to the nearest service center M/S PRERANA MOTORS for repairs. After getting the information regarding the accident, the Opposite Party deputed Mr.KRISHNAMURTHY – the insurance surveyor to inspect the vehicle and to submit the estimation for repairs. The surveyor after inspecting the vehicle submitted the report on 25.10.2007 estimating the damage at Rs.1,32,556/-. After deducting the painting charges, salvage and rubber parts as per terms and conditions of the policy, the amount payable comes to Rs.1,03,472/-. The claim reimbursement voucher was executed on 16.11.2007 and on the request of the complainant, the claim amount was sent to him in full and final satisfaction of the complainant. After the complainant executing the full and final settlement voucher, the amount was remitted to his account. The complainant has falsely pleaded that he received the sum of Rs.1,03,422/- under protest. The claim has been settled as per the terms and conditions of the policy and the complainant received the amount as full and final settlement. After the lapse of one year three months, he has filed complaint claiming further amount when the claim is not admissible. There is no basis for the complainant to claim Rs.1,13,455/- with interest at 24% Per Annum. If the complainant is aggrieved by the manner in which the claim is processed he has to either invoke arbitration clause under the policy or to approach competent civil court to establish the disputed loss. On these grounds, the Opposite Party has prayed for dismissal of the complaint.
    3.In support of the respective contentions both parties have filed affidavits, copies of documents and written arguments.
    4. The points for consideration:-
    1.Whether the complainant has proved deficiency in service on the part of the Opposite Party?
    2.Whether the complainant entitled to the relief prayed for in the complaint?
    5. Our findings to both points is in the NEGATIVE for the following:-

    -:REASONS:-
    6. According to the complainant himself M/SPRERANA MOTORS raised final invoice for Rs.1,78,238/- towards the repair charges and the op made payment of Rs.1,03,452/- under the insurance policy. Therefore, if at all the complainant is entitled to any balance amount that can be for Rs.74,816/-. But in the prayer column, the complainant has claimed Rs.1,13,455/- towards reimbursement of repair charges. According to the own case of the complainant he is entitled to claim the balance amount which comes to Rs.74,816/-. We fail to understand how the complainant can claim Rs.1,13,455/- towards reimbursement of repair charges as has been claimed.
    7. There is no dispute that the vehicle belonging to the complainant had been insured with Opposite Party for the period from 01.09.2007 to 31.08.2008, the said vehicle met with an accident on 20.09.2007 and on the complainant making claim, the insurance company settled the claim at Rs.1,03,422/-. According to the complainant, M/S PRERANA MOTORS has raised final invoice for Rs.1,78,238/- towards repair charges. Admittedly, on intimation regarding accident, the Opposite Party deputed one Mr.Krishna Murthy – the surveyor to inspect the vehicle and assess the damage. The Opposite Party has produced the report submitted by the surveyor. From this it is seen that the surveyor has assessed the damage at Rs.1,32,556/-. It is the contention of the Opposite Party that out of the assessment made by the surveyor at Rs.1,32,556/- the amount payable towards painting charges, salvage and rubber parts was deducted and Rs.1,03,422/- was paid to the complainant. In the complaint, the complainant admits for having received Rs.1,03,422/- from the Opposite Party, but has failed to disclose the date on which he received that amount. However, according to the Opposite Party, the claim disbursement voucher was executed on 16.11.2007 and thereupon the sum of Rs.1,03,422/- was paid to the complainant after he executed the full and final settlement voucher. In that event after receiving payment of Rs.1,03,422/- on 16.11.2007, the complainant has filed the present complaint on 23.01.2009 more than one year after the payment made by the insurance company. Though the complainant claims that he received the payment of Rs.1,03,422/- under protest, no document is produced in that regard. It appears on receipt of the said amount on 16.11.2007, the complainant did not even write a letter to the Opposite Party stating that he received the amount under protest. He claims that the Opposite Party had promised to pay the balance amount within 10 days. But this contention is denied by the Opposite Party. The complainant has not disputed the correctness of the report submitted by the surveyor. In that event, the complainant cannot claim anything more than what is assessed by the surveyor towards damage to the vehicle. The Opposite Party has produced the copy of the terms and conditions in respect of the goods carrying public carriers package policy. Clause – 21 with regard to special exclusions and compulsory deductible in the terms and conditions, it is stated that except in the case of total loss of the vehicle insured, the insurer shall not be liable under Section I of the policy for loss of or damage to lamps, tyres, tubes, mudguards, bonnet side parts, bumpers and paint work. If that is so, in the assessment made by the surveyor, the Opposite Party is entitled to deduct the amount payable towards rubber parts and painting. Thus, deducting the amount payable towards those work, the Opposite Party has made payment of Rs.1,03,422/-. The payment so made being in accordance with the terms and conditions of the policy and based on the report submitted by surveyor, we do not see any substance in the contention of the complainant that he is still entitle to claim Rs.1,13,455/- towards reimbursement of repair charges. Thus, we hold that the amount paid by the Opposite Party is based on the report of the surveyor and as per the terms and conditions of the policy and therefore the complainant is not entitled to claim anything more than what has been already paid. In the result, we pass the following:-
    -:ORDER:-

    • The complaint is DISMISSED. There is no order as to costs.

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    Sri. Nikesh Kundar,
    S/o. Narendra Suvarna,
    Aged about 23 years,
    R/A. Sonal Nivas,
    Sandspit Bengre,
    Mangalore. …….. COMPLAINANT

    (Advocate: Smt. Manjula N.A.)

    VERSUS

    United India Insurance Company Ltd.,
    VaranasiTowers, Mission Street,
    Bunder, Mangalore,
    Rep. by its Branch Manager. ……. OPPOSITE PARTY

    (Advocate: Sri. G.B. Prabhu).


    ***************

    ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;

    1. The facts of the complaint in brief are as follows:
    This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
    The Complainant is the absolute and registered owner of a Mechanized Fishing Boat “MFB Ramanjaneya II”. The aforesaid boat was insured with the Opposite Party as per the terms and conditions of the policy bearing No.70802/22/06/01/000012 valid from 26.9.2006 to 25.9.2007 for a sum of Rs.2,80,000/-.
    The allegation of the Complainant is that, on the intervening night of 17.5.2007 and 18.5.2007 at about 12.30 hours the Complainant’s boat started its journey for fishing from Sandspit Bengre through Mangalore sea bar, when they were so proceeding all of a sudden the engine of the said boat broke down and on account of the strong wind waves and water current the boat drifted towards the stone boulders existing all along the northern side of the Mangalore sea bar. As a result of heavy friction, the hull, cabin and engine of the Complainant’s boat caused extensive damage and the water gushed in and the boat started sinking in the sea bar. On the help of the another boat, they could rescue the crew members of the Complainant’s boat and towed the damaged vessel to Sandspit Bengre, where it hauled up for repair. That the repairer estimated the cost of Rs.3,85,000/- to make the boat seaworthy.
    It is submitted that, the cost of repair since exceeds the value of the boat at the time of the accident it amounts to constructive total loss and the Opposite Party are liable to pay the insured sum to the Complainant and the Complainant lodged a claim but the Opposite Party sent a letter dated 29.1.2008 to the Complainant stating that the loss suffered by the Complainant is a partial loss and not covered under the aforesaid policy and the claim of the Complainant is not entertained. It is submitted that, the act of the Opposite Party amounts to deficiency in service and hence the above complaint is filed before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from the Forum to the Opposite Party to pay Rs.2,80,000/- along with interest at 18% p.a. from 17.5.2007 to 17.4.2008 and further Rs.50,750/- claimed as compensation and cost of the proceedings.

    2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version admitted the policy and submitted that the premium was collected for the policy and the risk covered was for “total loss only” but the boat met with an accident is not suffered under total loss. The Opposite Party entrusted the survey work to one Sri.K.Prabhakar, Engineer, Valuer and Surveyor, he inspected the damaged boat on 18.5.2007 and called for certain information and documents from the Complainant and filed the survey report on 28.11.2007 and he had held that the total cost of recovery/repairs is Rs.2,32,193.73 and considered as partial loss. Hence the claim of the Complainant was repudiated and submitted that there is no deficiency whatsoever as alleged by the Complainant and further submitted that, the repair charges submitted by the Complainant is excessive and not correct and hence it is prayed for dismissal of the complaint.

    3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
    (i)Whether the Complainant proves that the Opposite Party has committed deficiency in service?

    (ii)If so, whether the Complainant is entitled for the reliefs claimed?






    (iii)What order?

    4. In support of the complaint, Sri.Nikesh Kundar (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C7 were marked for the Complainant as listed in the annexure. One Sri.O.N.Ramachandran (RW1) – Branch Manager of the Opposite Party Company filed counter affidavit and answered the interrogatories served on him. One Sri.K.Prabhakar (RW2), Surveyor and Loss Assessor filed counter affidavit and answered the interrogatories served on him. Ex R1 to R12 were marked for the Opposite Party as listed in the annexure. The Opposite Party produced notes of arguments.
    We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.
    Point No.(ii) & (iii): As per the final order.
    Reasons


    5. Point No. (i) to (iii):
    In the instant case, it is admitted that, the fishing boat MFB Ramanjaneya II was insured with the Opposite Party for a sum of Rs.2,80,000/- under Hull and Machinery policy and the said policy was valid for a period from 27.9.2006 to 26.9.2007. The risk covered was for total loss only.
    Now the case of the Complainant is that, there was a mishap on the intervening night of 17th and 18th May 2007 night at about 12.30 hours, the engine of the boat broke down and on account of the strong wind waves and water current the boat drifted towards the stone boulders existing on the northern sea bar, friction took place and it damaged the boat. According to the Complainant, the cost of making its seaworthy is Rs.3,85,000/- and hence it should be treated as ‘constructive total loss’ and claimed the insured amount. But in the instant case, the Opposite Party has repudiated the claim treating the loss as partial loss basing on the valuer and surveyor’s report dated 28.11.2007 (as per Ex R9).
    It is a definite case of the Complainant is that, the damage caused to the boat is a constructive total loss but the Opposite Party contended that there was no mishap as stated by the Complainant and it is not a constructive total loss it is a partial loss.
    Now the point for consideration is that, whether there was any mishap as alleged by the Complainant and whether the cost of the repair to make it seaworthy is far in excess of the cost of the boat.
    The Complainant filed a affidavit and also produced Ex C1 to C7 and the Opposite Party produced Ex R1 to R12. In the present case, it is undisputed fact that, the above mishap was caused on the intervening night of 17th and 18th May 2007 night at about 12.30 hours. The contention of the Complainant is that, the engine of the vessel ceased to function while proceeding near river mouth and therefore the vessel drifted towards southern breakwater wall due to low tide water current and eastern wind. As no vessel was available for their help the vessel continued to drift and collided with the southern breakwater wall, due to this the bottom part of the vessel was broken and hence the boat sunk on the spot and later with the help of “Swathi Shree” tindel were able to tow the vessel to Bengre Sandspit. The Opposite Party by relying on the survey report seriously contended that on the date and time the vessel could not have been towed to the spot where it was alleged to have found after the mishap as it was low tide condition. The depth of the water showed that it could not have been towed to that spot. The only conclusion the surveyor found that the vessel could not be towed to the spot as the same was drifted and capsized on the spot during low tide while it was anchored. And further contended that, several opportunities were given to the Complainant to establish his case that the damage is caused when it was drifted. And further contended that the Complainant did not haul–up/salvage the vessel for a long time, later when it was hauled up to the shore certain damages were found which were sustained during hauling operation. And contended that Rs.16,000/- towards towing charges which was found to be false and there was no towing with evidence and Rs.15,000/- towards hauling up charges found to be on higher side and contended that the cost of the repair and considering the market price surveyor allowed the claim at Rs.1,89,700/- and total amount required for making it seaworthy was estimated at Rs.2,32,193/- and not Rs.3,42,493/- as claimed by the Complainant and the risk covered by the Complainant is a total loss, since it is a partial loss he is not entitled.
    The survey report is the very important piece of evidence available before the FORA. On careful scrutiny of the surveyor report dated 28.11.2007, it reveals that K.Prabhakhar valuer and surveyor visited the spot on 18.5.2007 in order to carry out the survey. It is admittedly the alleged mishap took place on intervening night of 17th and 18th May 2007 night at about 12.30 hours.
    It is stated in the report that, during his inspection the vessel was lying in Gurupur River near the river bank at Sandspit, Bengre Mangalore in submerged condition. That means, at the time of inspection of the vessel, the vessel was lying at Sandspit. The mishap took place at midnight. It is admitted in the survey report that the vessel was hauled up on shore on 21st may 2007 and surveyor inspected the vessel and noted the damages are as follows:
    1)The plywood panels of wheel cabin were detached/washed away.
    2)The covering board portside and starboard side were detached.
    3)The joints of the 20 vertical frames on portside were loosened.
    4)3 rung hull planks were broken/cracked.
    5)The fender on port side were broken.
    6)The shear line stringers of port side were broken.
    7)The deck planks were detached and lost.
    8)The planks of the engine house detached and lost.
    9)The machinery was affected by water.
    10)The deck beams were cracked.
    11)The deck shelf was broken.
    12)Two holes were found at bottom part of the hull.


    The above damages are noted by the surveyor is very important to consider in the instant case because we have compared the survey report as well as photographs taken by the surveyor and the repair bill issued by one Mr.Basker Mestri, boat carpenter workers Mangalore. On careful comparison of the damages caused to the vessel the surveyor clearly stated that plywood panels of wheel cabin were detached/washed away, the covering board portside and starboard side were detached, the joints of the 20 vertical frames on portside were loosened, 3 rung hull planks were broken/cracked etc. etc. but the carpenter charged for 130 cft. Wood, nail - 120 kg., carpenter charge and fiber charge in total he has charged Rs.2,79,000/-. But the surveyor while considering the above cost of the repair commented that the reasonable cost of repair wild jack wood 65 cft at Rs.750/- and hard wood 65 cft at Rs.550/- that means the surveyor admitted the requirement of the 130 cft wood but while considering the price he has quoted the price at Rs.750 for 1 cft., for wild jack and Rs.550/- for hard wood. It is pertinent to note that there is no material evidence available in the report whether he has compared/cross-checked the bill amount. And further the carpentry labour charges and copper fasteners 60 kgs., and FRP charge considered Rs.30,000/- by the Surveyor without any reasonable explanation. The Surveyor ought to have cross checked the labour charges and other bill amount and given a finding then definitely it would have been appreciated. But in the instant case, the surveyor simply quoted the price without comparing/cross checking the bills. Hence we are not satisfied with the comments passed by the surveyor in the present case and at the same time we do not find any discrepancies in the cost of repair issued by the boat carpenter dated 29.5.2007 i.e., Ex R6 submitted by the Complainant before the Opposite Party Company. The total cost of repair comes to Rs.2,79,000/- and further the hauling up charges the Complainant issued a bill for Rs.15,000/- but the surveyor considered only Rs.10,000/- without there being any reasonable explanation. In the absence of the same, the same cannot be accepted. And rest of the cash memo for Rs.26,493.75 towards the cost of engine parts and Rs.6,000/- towards the labour charges for resetting the engine recommended by the surveyor appears to be acceptable and the one more charge Rs.16,000/- towards towing charges was not allowed by the surveyor by stating that the depth of the water while it was towed and left on the spot and the depth of the water during inspection on 20th May 2007 are almost same and he has considered that the depth of the water is reasonable that it is not possible to tow the vessel to that spot on the reported date and time and it is opined by him that the vessel was not towed to the spot. And further he has stated that the insured was informed that the damages were occurred during salvage operation and it is reported by the tindel that the vessel drifted due to eastern wind and he has requested the insured to submit the weather report and the insured failed to comply the same and the surveyor further noted in his report that if the eastern wind was blowing and river was in low-tide condition. The vessel should have drifted towards west bar sea and not towards southern breakwater wall. By considering the above facts, the surveyor has opined that the vessel was not met with any mishap and towing charges not allowed. And he has concluded that the vessel drifted due to strong water current and capsized on touching the river bank, the cause of drifting could also be attributed to displacement of anchor due to movement other vessel in vicinity and submitted the report that there was no adverse information and evidence was available to say that the mishap of vessel was caused due to uninsured peril. From the above observation it is made by the surveyor in his report in many paras it is made us very clear that, the surveyor is not certain because in one breath he states that the vessel drifted due to strong water current and capsized on touching the river bank and another breath he attributes that it could be displacement of an anchor during the movement other vessel in vicinity. And further he states that the vessel drifted due to eastern wind reported by the tindel and further he stated that the vessel should have drifted towards west Bar Sea and not towards south breakwater wall. The surveyor should always stick upon to one definite finding/opinion and not keep on giving one after another opinion according to his imagination. Hence we are not satisfied with the opinion expressed by the Surveyor without being any statement by the insured or the tindel or the local inhabitants.
    In the present case, it is proved that the vessel was encountered heavy weather drifted into strong monsoon weather and as a heavy friction the boat suffered extensive damage and the water gushed in and the boat started sinking in the sea bar and with the help of the other boat they could rescue the crew members and towed the damaged vessel to sandspit and where it hauled up for repair. But as per the survey report there was no mishap as discussed supra but no cogent evidence/materials placed before the FORA in order to support the opinion of the surveyor. No doubt the surveyor report is an important piece of document but the various points/opinions raised in the analysis report filed by the surveyor is not beyond reasonable doubt. The surveyor arrived at the conclusion on the imaginary/circumstantial evidences but while scrutinizing his report and the photographs produced by the surveyor also clearly established that the boat was extensively damaged and the opinion given by the surveyor is not supported by any material evidence and the mishap took place at midnight of the intervening night of 17th and 18th May 2007 night and the surveyor inspected the vessel on 18th and 20th after towing the vessel to the sandspit and no statement of the tindel or any crew members were taken. The surveyor ought to have taken the statement of the tindel/insured/crew members or any local inhabitants of the locality. In the absence of any evidence, it cannot be considered that there was no mishap taken place on the date, time stated by the Complainant. And the reason given by the surveyor is not satisfactory and the surveyor ought to have considered the reasonable towing charges alteast Rs.10,000/- instead of Rs.16,000/- but in the present case the surveyor not considered the above said amount which is not justifiable.
    In view of the above discussion, we are of the considered opinion that the surveyor report suffers from latches and failed to justify with reasonable explanations. Hence by considering all the facts and circumstances and the available documents, we are of the opinion that the Complainant’s boat suffered damages of constructive total loss and not a partial loss. The policy issued by the Opposite Party Company is very clear that the claim can be entertained only if it is a total loss and the risk is covered for total loss only. The repudiation on the part of the Opposite Party is not justified which amounts to deficiency in service. Hence the Opposite Party Company is hereby directed to pay the entire insured amount to the Complainant along with interest at the rate of 8% p.a. from the date of repudiation till the date of payment. However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation. And further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

    6. In the result, we pass the following:
    ORDER

    The complaint is allowed. Opposite Party i.e., United India Insurance Company Limited is hereby directed to pay the entire insured amount to the Complainant along with interest at the rate of 8% p.a. from the date of repudiation till the date of payment. And further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

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    Sri.B.Padmanabha,
    S/o. Aithappa Poojary,
    Aged about 50 years,
    R/A. Babbukatte House,
    Post Permannur,
    Kutthappadav,
    Mangalore – 575 017. …….. COMPLAINANT

    (Advocate: Sri.Raghuveer Bhandary M.)

    VERSUS

    United India Insurance Co. Ltd.,
    Branch III, Balmatta,
    Mangalore – 575 001,
    Rep. by its Branch Manager. ……. OPPOSITE PARTY

    (Advocate: Sri.G.Balakrishna Prabhu).


    ***************

    ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;

    1. The facts of the complaint in brief are as follows:
    This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
    It is submitted that the Complainant is running a juice center in Mangalore Taluk and obtained Standard Fire and Special Perils Policy under the Opposite Party in policy No.070803/11/05/1038 for his furniture, fixture and mixers situated in his shop premises for a sum of Rs.52,000/-. The said policy valid from 2.3.2006 till 1.3.2007.
    It is submitted that on 6.10.2006 at about 1.45 p.m., there was a communal riot and some persons have entered the juice shop of the Complainant and damaged the furniture, fixtures and other machineries situated in the shop of the Complainant and had suffered a loss to the tune of Rs.80,000/-. Immediately the Complainant lodged a police complaint. FIR and mahazar was drawn and thereafter on 14.10.2006 submitted the claim form with all necessary particulars to the Opposite Party. It is alleged that, the Opposite Party even after lapse of 2 months not responded and thereafter approached the Opposite Party several times and finally on 25.6.2007 repudiated the claim of the Complainant stating that the minimum deductible excess stipulated in the policy is Rs.10,000/- since the assessed amount Rs.4,725/- falls within the excess amount stipulated in the policy they are unable to entertain the claim and it is contended that the repudiation made by the Opposite Party is arbitrary and not justified and filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay a sum of Rs.52,000/- towards the claim along with interest at 12% p.a. from 6.10.2006 till date and further Rs.30,000/- claimed as compensation and cost of the proceedings.

    2. Version notice served to the Opposite Party by RPAD.
    Opposite Party appeared through their counsel filed version admitted the policy and submitted that as per the policy condition the minimum deductible stipulated in the policy was Rs.10,000/- and the surveyor assessed the amount by way of loss at Rs.4,725/- and as this fell within the excess amount stipulated in the policy the claim was not entertained and submitted that there is no deficiency in service and prayed for dismissal of the complaint.
    3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

    (i)Whether the Complainant proves that the Opposite Party has committed deficiency in service?

    (ii)If so, whether the Complainant is entitled for the reliefs claimed?






    (iii)What order?

    4. In support of the complaint, Sri.B.Padmanabha (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C6 were marked for the Complainant as listed in the annexure. One Sri.H.Damodara Bangera (RW1), Branch Manager of the Opposite Party and one Sri.U.Vasudeva Prabhu (RW2) – Surveyor and Loss Assessor of the Opposite Party filed counter affidavits and answered the interrogatories served on him. Ex R1 to R6were marked for the Opposite Party as listed in the annexure. The Complainant produced notes of arguments along with citations.
    We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.
    Point No.(ii) & (iii): As per the final order.
    Reasons

    5. Point No. (i) to (iii):
    It is undisputed fact that the Complainant obtained a Standard Fire and Special Perils Policy from the Opposite Party Company for a sum of Rs.52,000/-. The policy was in force from 2.3.2006 to 1.3.2007 (as per Ex C1). It is further undisputed fact that on 6.10.2006 at about 1.45 p.m., there was a communal riot in the locality where the Complainant’s juice center was situated and the shop of the Complainant was damaged. The FIR (as per Ex C3) and Mahazar (as per Ex C4) was drawn.
    It is submitted that, on 4.10.2006 the claim application was submitted before the Opposite Party and the Opposite Party repudiated the claim stating that the minimum deductible excess stipulated in the policy is Rs.10,000/-, since the assessed amount of Rs.4,725/- which falls within the excess amount stipulated in the policy and they are unable to entertain the claim.
    Undisputedly, the Complainant’s juice centre was insured under the Standard Fire and Special Perils Policy for a sum of Rs.52,000/- as stated supra. However, due to the above accident the Complainant’s shop premises was damaged and the Opposite Party repudiated the claim stating the above reasons. The Complainant did not feel satisfied with the reason stated by the Opposite Party hence he came up with this complaint.
    The learned counsels for the parties were heard and the records available before the FORA were perused. The Opposite Party counsel strenuously urged that the Surveyor appointed by the Company submitted the report and the extent of loss assessed by the Surveyor was of Rs.4,725/- and contended that the Complainant had repaired the mixer and the repair charges was assessed at Rs.425/- only. The damaged portion of broken 6 mm glasses of the ‘L’ type counter which is also the front showcase of M.S. Powder coated Angles was assessed for loss and contended that the Complainant made the same claim twice as “L” type counter and as front showcase etc. etc. and contended that the loss was assessed at Rs.4,725/-. As per the policy condition, the minimum deductible stipulated in the policy was Rs.10,000/- and the assessed amount by way of loss was at Rs.4,725/- and as this fell within the excess amount stipulated in the policy and the claim was not entertained.
    The learned counsel for the Complainant however submitted that the shop of the Complainant was extensively damaged as would be clear from the report of the Surveyor itself. It was further submitted that the Complainant had suffered a loss to the tune of Rs.80,000/- out of which Rs.20,000/- towards stock of loss, Rs.60,000/- towards furniture and building damaged. And further submitted that the Opposite Party not considered the FIR and the spot mahazar, wherein it is specifically stated that the furnitures were completely destroyed and the weighing machine also damaged but while considering the survey, the Surveyor not taken into consideration with regard to the damage of the weighing machine and the Surveyor’s valuation is not correct and it was also submitted that the repudiation arrived by the Opposite Party is not justifiable.
    We find that the Ex C1 is the claim form, wherein it has stated that Rs.20,000/- towards the stock loss and Rs.60,000/- towards the furniture and building damaged/loss. The Fire Insurance Policy i.e., Ex C5, wherein it shows that the stock was not covered under the policy. Hence the claim of the stock cannot be considered in this case.
    As far as loss towards the furniture and building is concerned, we have perused the survey report, FIR and the mahazar drawn by the Station House Officer, Ullal Police Station, Mangalore. On careful scrutiny of the above documents, it is clear that the showcase, electronic scale and food items and furniture, fixture and mixer and also the building damaged.
    It is pertinent to note that, the electronic scale is concerned, the Surveyor (as per Ex R3) noted the damages of the electronic weighing scale in page No.3 of his report but the same is not considered while assessing the loss.
    As far as the labour charges are concerned, the Complainant claimed Rs.1,200/- for replacing the damaged wooden rafters and reapers but the Opposite Party considered only Rs.600/- which also not justifiable. Further the loss towards furniture, fixtures and mixer, wherein the front showcase of M.S. Powder Coated Angles with 6 mm glasses considered the loss as Rs.2,500/- as against Rs.17,920/- and ‘L’ type counter of M.S. Powder Coated Angles with 6 mm glasses considered loss as Rs.3,500/- as against Rs.12,880/-. It is pertinent to note that the Surveyor not explained the reason properly whether the frames of the showcase and ‘L’ type counter was proper or not. Hence even the said loss assessed by the Surveyor is also not satisfactory. By considering the overall calculations arrived by the Surveyor, we are of the considered opinion that the survey report not last word for determination of actual loss. As is clear from the materials placed on record, the loss suffered by the Complainant is appears to be genuine and entitled to feel reimbursement not withstanding the Surveyors report of estimated loss of lesser amount. It is true that normally the estimate of the Surveyor regarding loss to be given due consideration but it cannot be said to be the last word for determination of actual loss as stated supra. As discussed herein above in the instant case, the some of the items mentioned in the survey report, mahazar was completely damaged, the same has to be reimbursed by the Opposite Party in the interest of justice. The Surveyor while considering the damages to the furniture, fixture and mixer considered Rs.4,725/- as against Rs.44,518.50 and while considering the damages to the building considered Rs.1,927/- as against Rs.3,611/- and depreciation considered on the above said amount at 26% on building and 30% for the furniture. As far as the calculation of the surveyor is concerned, undisputedly the building, furniture, fixture, mixer and other food items were damaged. As is clear from the material placed on record the Complainant had to incur Rs.44,518.50 and the same was paid by him and the bill was produced. On perusing the bills there is no justifiable reasons to discard the amount claimed by the Complainant and also there is no reason to doubt the payment made by the Complainant. The loss assessment valuation made by the surveyor appears to be purely hypothetical, imaginative and on assumptions and presumptions. While disallowing the amount claimed by the Complainant, the surveyor should give a satisfactory/reasonable explanations why it cannot be considered. But there is no explanations forthcoming.
    In view of the above, we consider the Complainant is entitled to get reimbursement of actual expenditure incurred by him towards the repairs of the damaged items. By considering the actual expenses, we direct the Opposite Party to pay Rs.48,129.50 less depreciation Rs.3,109/- it comes to Rs.45,020.50 along with interest at 8% p.a. from the date of repudiation till the date of payment. And further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

    6. In the result, we pass the following:

    ORDER

    The complaint is allowed. Opposite Party i.e., United India Insurance Co. Limited is hereby directed to pay to the Complainant Rs.45,020.50 along with interest at the rate of 8% p.a. from the date of repudiation till the date of payment. And further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

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    B.A.Balakrishna Rai,
    Aged 60 years,
    S/o. late Aithappa Rai,
    Basaveshwara Estate,
    Kedakallu Post,
    Somwarpet Taluk,
    Kodagu District.

    OPPOSITE PARTY:

    1. United India Insurance Co., Ltd.,
    24,White Road,
    Chennai-600014.

    2. United India Insurance Co., Ltd.,
    Rep: by its Senior Manager,
    College Road,
    Madikeri.



    O R D E R


    M.R. DEVAPPA, PRESIDENT

    Briefly stated the case of the complainant is as follows;

    1.That the complainant has purchased the insurance policy under Individual Health Insurance Scheme and insured Rs.50,000/- and the same is being renewed which is valid up to 26-11-2008. The complainant has to under go open heart by pass surgery and got himself admitted in malya hospital, Bangalore and under went surgery on 8-5-2008 and discharged on 17-5-2008.

    2.That the complainant incurred expenditure to the extent of Rs.1,52,000/- in Malya hospital and another Rs.13,000/- outside the hospital and requested the OP no.2 by his letter dated 10-6-2008 to reimburse aforesaid expenditure by furnishing all the details and the bills. Since OP no.2 did not respond, he wrote a letter dated 16-8-2008 to the Managing Director of TTK Health Care at Bangalore. As there was no immidiate response from them he wrote another letter to OP2 but there was no response from OP2 which compelled the complainant to write another letter dt. on 15-9-2008.


    3.As there was no proper response, OP1 and OP2 , got legal notice issued calling upon OP1 and 2 to reimburse the expenditure and to pay 20% interest thereon and to pay Rs.50,000/- as compensation. Despite it the OP1 & 2 have failed to settle the claim of the complainant the same amounts to deficiency of service and approached the Forum seeking reliefs mentioned in the complaint.

    4.The complainant has filed the following list of documents.
    1.Receipt dt.20-11-2007
    2.Office Copy of letter dt.10-6-2008.
    3.Office Copy of letter dt.16-8-2008.
    4.Office Copy of letter dt.02-9-2008.
    5.Office Copy of letter dt.15-9-2008.
    6.Postal receipts for RLA No.9481,9482, and 9483 from the post office.(3 numbers)
    7.Office Copy of notice dt.26-12-2008.
    8.Postal acknowledgement for No.2980, dt.26-12-2008.
    9.Reply notice dt.21-1-2009 from shri P.T.Ganapathy, advocate, Madikeri.
    Upon admitting the complaint notice was sent to OP no.1 & 2 and on receipt of the notice Ops have engaged the advocate and on filing the version and the affidavit they have taken the following defence.
    1.That it is true that the OP issued Health Insurance Policy the sum insured being Rs.50,000/- as such the liablility of the OP is only to the extent of Rs.50,000/- subject to the terms, conditions & limitation of the policy.
    2.That the OP is always ready and willing to settle the claim at the earliest provided the OP furnishes all the required documents as required by Medsave Health Care (TPA) Ltd.
    3.The third party administator has sort some clarification and the complainant had asked to furnish some more documents regarding treatment extended to him. Since the required information was not furnished the OP could not settle the claim and hence no deficiency of service is committed by them and the claim of the complainant is also not repudiated as such there is no cause of action. Consequently, the complaint is liable to be dismissed.

    5.The OP has filed the following documents:

    1.Insurance Policy covering the period 27-11-2007 dt.26-11-2008.
    2. Letter dated 24-12-2008 addressed to the complainant from Medsave Healthcare (TPA) Ltd.,
    3.Letter from Medsave Healthcare (TPA) Ltd., dt.10-1-2009 addressed to the complainant.

    6.Both the parties have filed their affidavit evidence in lieu of examination in chief.

    7.Having regard to the averments made in the complaint & the defence taken by the Ops , the following issues arise for determination:

    1.Whether, in not settling the claim of the complainant the Ops have committed deficiency in service.
    2.To what order?

    REASONS

    8.The purchase of insurance policy and the validity of the same is not in dispute and further the liability of the Ops to the extent of Rs.50,000/- is also not disputed. But the defence of the Ops is that they are not liable to reimburse the entire expenditure incurred by the complainant.

    9.The Ops have contended that for want of some document like the actual treatment extended and the actual disease suffered and other details of admission and discharge of the complainant from the hospital, was not furnished to the third party administrator and hence the claim could not be settled.


    10.It is argued by the counsel for the complainant that the complainant has sent the claim petition on 10-6-2008 requesting the Ops to reimburse the expenditure as reflected in the previous paragraphs. But despite complainant writing letters on 16-8-2008, 2-9-2008 & on 15-9-2008 and a legal notice issued on 26-12-2008 the Ops did not respond to those letters and failed to settle the claim till the date on which the complaint is filed i.e 2-2-2009 and therefore, the act and conduct of Ops amounts to deficiency in service and further argued that available documents were sufficient to settle the claim & the Ops have deliberately dragged on the matter.

    11.As against the above submission the advocate for OP vehimentally argued that the claim of the complainant could not be settled for want of documents and the Ops have not repudiated the claim but are willing to settle the same only to the extent of Rs.50,000/- and not beyond that.

    12.It is relevant to mention that the complainant has placed the discharge certificate and other related documents before the Forum after due notice to the advocate for Ops. As such there are no difficulties to settle the claim of the complainant only to the extent of Rs.50,000/-. We have perused and verified the insurance policy and the amount insured is only Rs.50,000/- as such the liability is restricted to Rs.50,000/- only.

    13.Regarding the bonus, the complainant is at liberty to correspond with the Ops because for the first time such matter is agitated before the Forum.

    14.Since the claim of the complainant is not settled for the past about 6 months and we are of the considered opinion that with the available materials the claim of the complainant could have been settled by the Ops. It can be said that Ops have committed deficiency in service keeping the complainant under anxiety.

    15.In view of the above discussions we answer point no.1 affirmatively holding that the Ops have committed deficiency in service and proceed to pass the following order.

    ORDER


    The complaint is partly allowed and the Ops are hereby directed to settle the claim only to the extent of Rs.50,000/- and at 10% interest thereon from the date of complaint i.e 2-2-2009 till the date of realization of the said amount. And further the OP no.1 & OP 2 are directed to pay Rs.1,000/- towards the cost of this proceedings to the complainant.

    The above order shall be complied within sixty days from the date of receipt of this order by the opposite parties.

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    Shri Bhagwan Dass Chauhan



    … Complainant.

    Versus



    The United India Insurance Company Ltd.



    …Opposite Party.


    O R D E R:

    Arguments partly heard. At this stage the learned counsel for the OP-Company submitted before us that as per the contents of the FIR Annexure R-4 four persons were sitting in the vehicle bearing registration No.HP-09A-0897 at the time of the accident and one of them died. That the OP-Company made several reference to the complainant to explain the capacity of the persons who were travelling in the vehicle at the time of the accident but the complainant did not supply the requisite information to them. Therefore, the OP-Company was left with no option except to treat the claim of the complainant as no claim and intimation to this effect was also sent vide letter Annexure R-2.



    2. Therefore, from the averments of OP-Company it is manifest and clear that when the complainant did not furnish the required information regarding the capacity of four persons who were travelling in the vehicle at the time of the accident, his insurance claim was not processed further and it was treated as no claim. As such, it appears that it is a premature complaint.




    3. Accordingly, it is deemed expedient in the interest of justice to direct the complainant to furnish the required intimation to OP-Company regarding the capacity of four persons who were occupants of the vehicle in question at the time of the accident. As such, the complaint is disposed of and it is ordered that the complainant shall furnish the aforesaid information to the OP-Company within thirty days from today and thereafter, the OP-Company shall process the insurance claim of the complainant expeditiously and will intimate its final out come to the complainant within 60 days thereafter. It is ordered accordingly.

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    Bhumireddy Sarada, W/o Samba Siva Reddy,
    aged 48 years, Hindu, Vehicle owner,
    C/o Sudhakar Agencies, Vasthu Complex,
    Mydukur Road, Proddatur town and Mandal,
    Kadapa District. ….. Complainant.

    Vs.

    United India Insurance Co. Ltd., Rep. by its
    Branch Manager, 22/444, B.S. complex,
    Proddatur Town and Mandal, Kadapa District. ….. Respondent.

    O R D E R

    (Per Sri S. Abdul Khader Basha, Member),

    1. Complaint filed under section 12 of the Consumer Protection Act 1986.

    2. The brief facts of the complaint are as follows:- The complainant is the owner of Tata Qualis bearing No. AP 04 V : 0189. The complainant had taken vehicle insurance policy from the respondent company bearing No. 050901/31/6/01/00000559 and the policy is in force from 21-9-2006 to 20-9-2007. The said vehicle was met with an accident on 18-6-2007 and the vehicle was also damaged. The complainant informed the respondent and as per instructions of the respondent the complainant handed over the damaged vehicle for repairs to the authorized service station “Harsha Toyota”, at Hyderabad. The service station prepared and sent estimation for the repair of the vehicle even to the respondent. The service station repaired the vehicle and issued the bill in total for Rs. 3,91,552/-. The complainant paid the bill amount on 14-11-2007 by way of two demand drafts and cash. The complainant had filed the same to the respondent and submitted papers to the respondent and copies of the receipts issued by Harsah Toyata.

    The complainant submitted the claim to the respondent. But surprisingly the complainant received a letter from the respondent on 12-6-2008 in that the respondent stated that the claim was approved for Rs. 66,700/- to full and final settlement and also sent a form to the complainant. The complainant immediately contacted the respondent and enquired with them. The respondent’s offer is not acceptable to the complainant and the complainant informed to the respondent the total expenditure of the vehicle. The respondent is not acted upon and that the complainant issued a legal notice to the respondent on 20-7-2008 and again on 10-9-2008. The respondent replied for the 2nd notice with false allegations. The complainant had done all the formalities as required by the respondent long back. The respondent carelessness and callous attitude clearly amounts to deficiency of service, negligent attitude and unfair trade practice. The act of the respondent is within the ambit of the provisions of C.P Act. The complainant had sustained a lot of monitory loss as well as mental agony. This complainant is filed before this forum requesting to direct the respondent to pay the bills amount of Rs. 3,91,552/- with interest @ 12% p.a. from 14-11-2007, to pay Rs. 1,00,000/- towards deficiency of service and mental agony and costs to the complaint.

    3. The respondent filed a counter denying all the allegations and stated that this complaint is not maintable before this forum as the vehicle bearing No. AP 04 V : 0189 is a commercial registration which is meant for hire usage purpose, as such the complainant for her grievance if any on this issue ought to have approached the Civil court of Law and not before this forum. The present complaint is bad for non-joinder of necessary of the vehicle i.e. S.B.I. Proddatur who alone is the complainant to claim and file this complaint during the finance period and the complainant cannot be termed and defined as owner of the vehicle and on this aspect also the complaint is liable to be dismissed.

    The allegation of the complainant that there is deficiency of service on the part of the respondent is not settling the claim amounts to deficiency in service is all false and imagination of the complainant. The respondent always discharged his duty right from receiving of the intimation of the accident from the complainant. In fact the complainant was negligent in discharging her duties such as submission of relevant documents for settlement of her claim. The respondent also addressed a letter dt. 12-6-2008 to the complainant that her claim was settled for Rs. 66,770/- towards full and final settlement and to submit the discharge voucher duly signed by the complainant for issuance of the cheque in favour of the financier bank and in case of cheque to be issued in her favour, to obtain no objection letter from the Bank. Inspite of receipt of the said letter the complainant failed to submit the discharge voucher, as such there is deficiency of service on the part of the complainant. The respondent under compelled circumstances ‘closed the claim’ under due intimation to the complainant, the respondent appointed a surveyor by name G. Subba Rao, to inspect the accident vehicle and to submit the report. The said surveyor assessed the nature of damage and the liability of the respondent @ Rs. 75,000/- considering the applicable depreciation to iron and rubber parts.

    The respondent after submission of the bills by the complainant, calculated net amount payable as Rs. 66,770/-. The allegation of the complainant that she paid Rs. 3,91,552/- for getting the vehicle to road condition is her imagination which is not supported by documentary evidence, such as relevant bills issued by Harsha Toyota, Hyderabad, authorized service station. The expenditure towards the repairs estimated by the complainant is excessive without any proof and to get unlawful gain. There is no deficiency of service on the part of the respondent so as to attract the provisions of C.P. Act. There are no merits in this complaint and the respondent requested this forum to dismiss the complaint with exemplary costs.


    4. On the basis of the above pleadings the following points are settled for determination.
    i. Whether the complainant is entitled to the relief as prayed for?
    ii. Whether there is any deficiency of service on the part of the respondent?
    iii. To what relief?


    5. On behalf of the complainant Ex. A1 to A8 were marked and on behalf of the respondent Ex. B1 to B6 were marked. Oral arguments were heard from both sides.


    6. Point No. 1& 2. Ex. A1 is the Xerox copy of insurance policy. Ex. A2 is the Xerox copy of receipt issued by Harsha Toyota, Hyderabad, dt. 30-11-2007 for Rs. 3,91,552/- in favour of the complainant. Ex. A3 is the Xerox copy of demand draft for Rs. 2,50,000/-, dt. 14-11-2007 in favour of Harsha Automotive Pvt. Ltd.,. Ex. A4 is the Xerox copy of another demand draft for Rs. 50,000/- dt. 14-11-2007 in favour of Harsha Automotive Pvt. Ltd. Ex. A5 is the Xerox copy of legal notice dt. 10-9-2008. Ex. A6 is the Xerox copy of letter from the Branch Manager, United India Insurance Co. Ltd., dt. 3-10-2008 addressed to the Advocate of the complainant. Ex. A7 is the Xerox copy of another legal notice dt. 20-7-2008 addressed to the respondent. Ex. A8 is the Xerox copy of letter settlement of claim dt. 12-6-2008 addressed to the complainant by respondent. Ex. B1 is the Xerox copy of motor final survey report, dt. 5-8-2007. Ex. B2 is the Xerox copy of Ex. A8. Ex. B3 is the Xerox copy of reminder – I, dt. 8-7-2008. Ex. B4 is the Xerox copy of letter dt. 8-8-2008 of the respondent addressed to the complainant. Ex. B5 is the Xerox copy of letter of the respondent addressed to the complainant dt. 28-8-2008. Ex. B6 is the Xerox copy of calculation sheet (containing – 4).


    7. As could be seen from the documentary evidence on record there is no dispute with regards to accident of the vehicle in question and there is also no dispute with regard to repairs of the damaged vehicle of the complainant through authorized service station by name Harsha Toyota EX.A2 dt. 30-11-2007 which is issued for Rs. 3,91,552 mentioned as by cash. In fact the payment of Rs. 2,50,000/- and Rs. 50,000/- respectively by means of Demand Drafts by the complainant is not find place in the receipt. The complainant failed to convenience this forum on this aspect and there is no satisfactory explanation with regards to genuiness of the receipt Ex. A2 issued by the service station. In view of the unexplained situation by the complainant in respect of the expenditure towards the repairs, of her damaged vehicle to the tune of Rs. 3,91,552/- deserves no consideration, as such taking Ex. A3 and A4 demand drafts for Rs. 2,50,000/- and Rs. 50,000/- respectively paid by the complainant to the service station towards the expenditure of her damaged vehicle needs to be considered . The estimation of surveyor as per Ex. B1 appears to be very low when compared to the actual insurance of expenditure by the complainant towards the repairs to her damages vehicle.

    8. The respondent at any point of time has not succeeded in convincing this forum in support of his contention that the vehicle in question is meant for hire usage which is purely commercial in nature. In view of not adducing adequate evidence in support of this contention of the respondent it is not fair to consider the contention of the respondent. Similarly there is no evidence adduced by the respondent to show that the complainant is having dues to the Financier i.e. State bank of India, Proddatur Branch, as such the contention of the respondent that non-joinder of the financier is bad for the complaint as the Financer alone is the complainant during the finance period and the complainant cannot he termed and defined as owner of the said vehicle. Again the respondent failed to adduce evidence in support of its contention taking in view of this aspect the complainant is advised to obtain no objection certificate from the S.B.I., Proddatur branch and produce before the respondent so that the respondent can safely deliver the amount to the complainant.


    9. Point No. 2 In the result, the complaint is allowed, directing the respondent to pay Rs. 3,00,000/- (Rupees three lakshs only) to the complainant without interest, costs and compensation, within 60 days from the date of receipt of the order. The rest of the claim is dismissed.

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    Default United India Insurance Company Ltd.

    Shri Joginder Malta S/O Bali Ram Malta R/O Village Ghalana, P.O. Kuthar, Tehsil Theog, District Shimla, H.P.

    Versus

    The United India Insurance Company Ltd.

    Through its Divisional Manager,

    Divisional Office, Timber House, Cart Road, Shimla-1.

    Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant by invoking the provisions of Sections 11 & 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of Maruti Van bearing registration No. HP-01A-0358, copy whereof has been attached as Annexure A-1. The complainant has further proceeded to aver that he purchased the aforesaid vehicle by obtaining loan from the HP State Financial Corporation, for, earning his livelihood and got the aforesaid vehicle insured with the OP-Company on 08.06.2005 for a period of one year w.e.f. 08.06.2005 to 07.06.2006 for a sum of Rs.1,52,000.

    It is also asserted that he paid additional premium of a sum of Rs.100/- whereby the owner and driver of the vehicle were provided additional insurance cover of a sum of Rs.2,00,000/-, copy whereof has been annexed as Annexure A-2. In June, 2003, he averred that he engaged a driver in the second half of July, 2003 to drive the aforesaid vehicle as he did not know driving and before the engagement of Shri Anand Parkash as driver, he, satisfied himself of the fact that he was competent and authorized to drive the vehicle owned by him. He also averred that Shri Anand Parkash was holding a valid and effective driving licence, which had been impounded by the police in a criminal case and a certificate had been issued by the Incharge CIA staff Shimla to the effect that he is holding a valid driving licence, copy of such certificate, is, annexed as Annexure A-3. The vehicle owned by the complainant is averred to have met with an accident on 09.08.2005, at, Ghannati when it was on its way from Dharamsala to Shimla resulting in extensive damage to the vehicle, as also, the complainant sustained injuries.

    Copy of the FIR is annexed as Annexure A-4. The complainant avers that he brought the fact of accident to the knowledge of the OP-Company who immediately appointed a surveyor, who inspected the spot and directed the complainant to retrieve and repair the vehicle after submitting estimate of repairs. Consequently, the vehicle was retrieved from the gorge where it had fallen and also the repairs were effected by M/S Goel Motors Tara Devi, Shimla and a total sum of Rs.1,21,131/- is averred to have been spent on the repair of the vehicle, as also, a sum of Rs.3500/- is averred to have been spent on retrieving of the vehicle vide Annexure A-6. The complainant has further asserted that vide letter dated 10.01.2006 Annexure A-8, it was intimated by the OP-Company that since the complainant had engaged the driver who was not having valid and effective driving licence, hence his claim cannot be considered. In response to the said letter, he informed the OP-Company explaining his position and calling upon them to make the payment of the claim amount, but of no avail and vide Annexure A-10, his claim was repudiated by the OP-Company. Hence, it is asserted that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OP-Company filed detailed reply to the complaint. In the preliminary objection it was contended that the complaint, is, not maintainable, as this Forum has no jurisdiction to entertain the present complaint. Also it was contended that the driver of the vehicle was not having a valid and effective driving licence to drive the vehicle, in as much, as, the driving licence was only valid up to 19.11.2004, hence had expired rendering him unfit to drive the vehicle on 09.08.2005. On merits, it was contended that the complainant is plying the vehicle for commercial purpose as he is serving as Manager at Hotel Flora Lakkar Bazar, Shimla. Therefore, the complainant, is, not a consumer. It was not denied that the complainant is not the owner of the vehicle, but it is denied that the complainant had purchased the above vehicle to earn his livelihood. It is denied that the driver of the vehicle was having a valid and effective driving licence at the time when the vehicle met with an accident. Since, the driver was not possessing a valid and effective driving licence, therefore, the complainant was not entitled for claiming compensation.

    It is not denied that the driving licence of driver of the vehicle owned by the complainant was to expire on 19.11.2004, yet, it is contended that no steps had been taken either by the driver or by the complainant to get the driving licence renewed. Moreover, even though, the surveyor had assessed the loss to the vehicle to the tune of Rs.94,361, yet in the light of the violation of the insurance policy, it is contended that the complainant is not entitled to the amount as expended by him on repairing the vehicle which met with the accident. It is also denied that the complainant spent Rs.3500/- on towing of the vehicle and Rs.75,000/- on treatment and Rs.1,21,131/- on repairs of the vehicle. Therefore, it is contended that the complaint be dismissed.

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

    4. The complainant relies upon various annexures illustrating the fact of the expenses incurred by him towards repair of the vehicle, as well, as towards towing of the vehicle from the gorge, to, workshop, where, it, was got repaired.

    5. The OP-Company in support of its contention in the reply has relied upon the evidence tendered by way of affidavit sworn by the authorized officer of the OP-Company. Besides, the OP-Company also relies and depends upon the affidavits of Rajinder Kumar Khajuria, Investigator appointed by the OP-Company for verifying the fact whether the driving licence of Shri Anand Parkash engaged as a driver by the complainant is valid, or not, it, having expired on 19.11.2004, whereas the accident had occurred on 09.08.2005. Since, he has reported qua its un-authenticity, hence, it is urged that at the time when the vehicle met with an accident, the driving licence of Shri Anand Pakash was, not, valid rendering, as such, him unfit to drive the vehicle.

    6. It is not in dispute between the contesting parties that one of the solemn conditions necessitating compliance by the complainant for claiming the expenses, incurred by him for repairing of the insured vehicle which met with an accident, is, of the driver who was driving, it, at the time when it met with an accident, being, competent to drive it or his competence is to be borne out by the fact of his possessing a valid and effective driving licence, when the accident occurred. Obviously, when the test of his being fit and competent to drive the vehicle is to be proved by his possessing a valid and effective driving licence at the time of the accident, then the said test has come to be not satisfied, in as much, as, the driver engaged by the complainant named Anand Parkash, in, the light of Annexure R-3, as also, in the light of the affidavit sworn by authorized functionary of OP-Company manifest the fact of his being not possessed of a valid and effective driving licence to drive, it, at the relevant time. The said evidence having remained un-rebutted, hence, it, requires conclusivness. Obviously, since the complainant in rebuttal could not prove the fact that the driver Anand Parkash was having a valid and effective driving licence, its, non-possession by him at the relevant time constituted a breach of the terms and conditions of the insurance policy. Therefore, it is open to the OP-Company to refuse to the complainant the claim as asserted against them by him. In nutshell, the denial of the claim as asserted by the complainant against the OP-Company is legally justified and cannot be termed as deficiency in service hence the complaint is liable to be dismissed.

    7. In the light of the above, the complaint is liable to be dismissed and it is ordered accordingly, leaving the parties to bear their own cost.

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