Kona Murali Krishna, S/o Sathiraju, Hindu, male, aged 27 years

Owner of Scorpio Jeep No.AP 05 V 6177

R/o D.No.2-1-63, Ganapati Center, Yernagudem Road

Nidadavole, W.G. Dist., -- Complainant

1. The Branch Manager, United India Insurance Co., Ltd.,

Nidadavole Branch, Nidadavole, W.G. Dist.,



2. The Regional Manager

United India Insurance Co., Ltd.,

Regional Office, D.No.30-15-153, III & IV Floors

Pavan Enclave, Dabagardens, Post Box No.2008

Visakhapatnam. -- Opposite Party

O R D E R


1. The complainant purchased vehicle of Scorpio under finance for Rs.6,28,000/- for the purpose of his livelihood. The complainant registered the said vehicle at Rajahmundry on 18-2-2005 bearing registration No.A.P.05V 6177 and also got all India permit for running the same as Taxi cab from regional transport authority Kakinada on 24-2-2005 and the same is running tourist vehicle. The complainant has insured the said vehicle on 10-2-2006 with the 1st opposite party under Policy No.150605/31/05/01/00004761 for Rs.5,00,000/-. On 20-5-2006 at about 8-30 am., the vehicle of the complainant was proceeding from Eluru Rural near check post, the said vehicle met with an accident due to sudden application of brake by the driver of preceding vehicle bearing OR 15 F 9055. The accident was registered by Denduluru Police Station as a case in Crime No.77/2006. The said vehicle was taken to Garapati garage 1959 which is an authorized distributor for Mahindra and Mahindra vehicles for effecting repairs.

The said garage estimated the expenditure for effecting repairs of the said vehicle. The complainant submitted claim forms on 25-5-2006 for claiming damages of the said vehicle. A sum of Rs.3,57,421/- was incurred towards expenditure for effecting repairs. After 8 months the complainant received a covering letter dt. 23-1-2007 bearing No.150605/MOD/2941/0607 intimating the claim at Rs.2,27,000/- from the surveyor. After receiving letter, the complainant made a representation to the 1st opposite party on 1-2-2007 about non-acceptance of the said claim due to undue delay in settling the claim. The 1st opposite party received the same but not responded. On 18-11-2006 the Garapati Garage issued notice demanding the complainant to pay Rs.150/- per day towards staying charges of the vehicle in the garage and also Financiers of Mahindra and Mahindra issued notice to the complainant to pay Rs.91,220/- towards part satisfaction of the loan amount due by 6-12-2006. The complainant received the same and intimated the same to the surveyor and also 2nd opposite party. On 20-8-2007 the complainant made a representation to the 2nd opposite party. Inspite of such letter also the opposite parties not responded. The complainant approached the insurance Ombudsman to redress his grievance.

The insurance Ombudsman passed award under Sec. 16 of Redressal Grievance 1998 directed the 1st opposite party to pay Rs.2,50,000/- with interest as per IRDA from 1-3-2007 till the date of payment. The complainant has to pay a sum of Rs.10,200/- towards monthly instalment of payments of the loan. Due to damage of the vehicle in the accident he is not in a position to pay repayment of loan. On 11-8-2007 the Mahindra and Mahindra Financial Services also issued notice to the complainant to pay a sum of Rs.1,72,564/- towards discharge of the loan amount by the date. The complainant sent a reply expressing his inability to pay the said amount.

2. The complainant prays that the Hon’ble Forum to direct the opposite party to pay a sum of Rs.9,32,535/- towards expenses incurred for effecting repairs, staying charges, repayment of loan amount, pecuniary loss and subjecting mental agony. Hence this complaint.

3. The 1st opposite party while remained exparte, the 2nd opposite party filed its version denying the averments of the complaint and stated that immediately after receiving the intimation from the complainant with regard to the alleged accident, the opposite party appointed one G.V. Rama Krishna, L.A.E. Insurance Surveyor to assess the loss and damage of the vehicle caused in the said accident and the said surveyor visited the scene of accident and Garapati Garage and noted all the details and assessed the loss and damage at Rs.2,28,000/- and accordingly submitted a detailed report, that basing on the said report, the 1st opposite party settled the claim of the complainant at Rs.2,27,000/- after deducting the excess amount of Rs.1,000/- and intimated the same to the complainant. It is further alleged that the complainant refused to receive the same and approached the Insurance Ombudsman to redress his grievance, that after an elaborate enquiry, the Insurance Ombudsman vide proceedings dt. 8-2-2008 passed an award under Rule 16 of Public Grievances Rules, 1998 directing the opposite parties to pay a sum of Rs.2,50,000/- with interest as per D.R.D.A guidelines from 1-3-2007 till the date of payment that after receiving the award passed by the Insurance Ombudsman, the opposite party sent a letter to the complainant vide letter No.150605/Motorcl/2815/07 dt. 17-3-3008 intimating the complainant that the company is ready to pay the award amount and requested the complainant to send his consent letter in writing agreeing for the settlement and that the complainant refused the same and when he kept quite, a remainder was also again issued on 6-5-2008 to the complainant, that even then the complainant did not send any reply or send any consent letter and filed the present complaint with false and untenable allegations.

It is further stated that as per the policy, the insured declared value is only Rs.5,00,000/-and that as per the policy conditions, the company shall not be liable to make payment in respect of consequential loss, depreciation, wear and tear, failures, breakage etc., and therefore this opposite party is not at all liable to pay any compensation under the heads of column No.11(b)(c)(d)(e) mentioned in the complaint and the value mentioned in column No.11(a) of complaint is not correct in view of the assessment and damages estimated by the qualified surveyor and therefore there is no deficiency in service in settling the claim of the complainant in any manner and this opposite party has done his duty as per the rules and regulations of the Act and terms and conditions of the policy. Thus the complaint is liable to be dismissed with exemplary costs.

4. The complainant in proof of his claim filed his affidavit corroborating the averments of the complaint and got marked as Ex A.1 to Ex A.17. On the other hand, the 2nd opposite party also filed its affidavit in support of its version and got marked Ex B.1 to B.4.

5. The points for determination now are :

1) Whether there is any deficiency in service on the part of the opposite parties as alleged by the complainant ?


2) Whether the complainant is entitled for the reliefs sought for by him ? if so, to what extent ?


3) To what relief ?


POINT No: 1 :

As per the very version and the affidavit filed by the 2nd opposite party, there is no dispute about the ownership of the vehicle and its involvement in the accident and the claim made by the complainant for reimbursement of the expenditure incurred by him for repairs of the vehicle done by Garapati Garage because, this is the case where at one stage, the 1st opposite party settled the claim at Rs.2,27,000/- basing on its Surveyor’s report.

There is also no dispute in the matter about the complainant approaching the Insurance Ombudsman to redress his grievance and about the passing of award by it directing the 1st opposite party to pay a sum of Rs.2,50,000/- with interest as per the DRDA rules from 1-3-2007 till the date of payment. It is also a fact borne out from the record that the 1st opposite party was ready to pay the said award amount to the complainant but the complainant having not been satisfied with the said awarded amount, did not come forward to receive the amount from the 1st opposite party and filed the present complaint.

The contention of the complainant is that immediately after the accident, he reported the same to the opposite parties for settlement of the claim but the opposite parties took their own time with a long gap of about nearly 2 years and as such there is a deficiency in service on their part in settling the claim. It is also further contended by the learned counsel for the complainant that due to undue delay in settling the claim for about nearly 2 years, the complainant sustained huge loss which is to be compensated by the opposite parties since the vehicle in question was remained idle for want of payment for repairing charges etc., As admitted by the 2nd opposite party, it is a fact borne out from the record that the complainant is the owner of the vehicle which involved in the accident on 20-5-2006 and it is also not disputed by the opposite parties that the complainant immediately after the accident, reported the matter to them.

If such is the situation, the opposite parties ought to have deputed their surveyor for assessing the loss and damage caused to the vehicle of the complainant expeditiously. Ex B.2 is the copy of the motor final survey report got marked by the 2nd opposite party which clearly goes to show that the vehicle was surveyed by the surveyor and a report to that effect was finalized on 15-9-2006 for the accident that took place on 20-5-2006. Even assuming for a movement, the said delay can not be considered as much delay but the opposite parties intimated the said fact of their settling the claim to the complainant on 23-1-2007 as can be seen from Ex A.11 ie., about after 8 months. The 1st opposite party while remained exparte, the 2nd opposite party also not assigned any reason for such a long delay in settling the claim of the complainant which itself constitutes the deficiency on the part of the opposite parties in rendering service to the complainant. Therefore, we found that the complainants as clearly established his case against the opposite parties in ascribing their acts to deficiency in service.

POINT No: 2 :

It is the case where it appears that the complainant having not been satisfied with the claim settled by the 1st opposite party, approached the Insurance Ombudsman to redress his grievance. As seen from Ex A.16, it is also a fact borne out from the record that the Insurance Ombudsman at Hyderabad after an elaborate enquiry, passed an award directing the opposite parties to pay Rs.2,50,000/- with interest as per DRDA Rules from 1-3-2007 till the date of payment. It is the contention of the learned counsel for the opposite parties that they were ready even to pay the said awarded amount but inspite of their intimation and remainder thereon, the complainant himself did not choose to receive the amount and therefore there is no delay on their part in making payment of the award amount passed by the Insurance Ombudsman as under Ex A.16. It is further contended by the learned counsel for the opposite parties that as per the terms and conditions of the policy, the company shall not be liable to make payment in respect of consequential loss, depreciation, wear and tear, failures, breakage etc., of the vehicle and therefore the complainant is not entitled for the entire reliefs sought for by him.

On this aspect, it is the contention of the learned counsel for the complainant that because of the non-payment of the bill to Garapati Garage towards repairs of the vehicle, he could not take delivery of the vehicle from the workshop and ultimately the vehicle remained idle which consequently effected his income on the vehicle, and that the complainant also could not make payment of instalments to the finance company in time and thereby the finance company also by imposing huge interest insisting him to make huge payment and therefore the complainant is entitled for all the reliefs sought for by him. But we are unable to agree with the said contentions of the learned counsel for the complainant.

Further, it is not the case of the complainant that the opposite parties have not at all settled the claim. It is a fact borne out from the record that the claim was settled by the opposite parties, but however with a grate delay. If really the complainant has not satisfied with the claim settled by the opposite parties, he ought to have received the settled claim with protest and then ought to have fight before the court of law for his redressal. In the case on hand, the complainant instead of doing so, approached the Insurance Ombudsman, got the matter enquired elaborately and after passing of award, he came forward with the present complaint on one ground that the said award passed by the Insurance Ombudsman is not binding on him and in another breath he has not satisfied with the quantum of amount awarded by the Insurance Ombudsman. But such contentions are untenable. However, as per the terms and conditions of the policy, the opposite parties are not liable to make payment in respect of consequential loss, depreciation, wear and tear, failures, breakage etc.,. But however, the complainant is entitled for a reasonable compensation for the undue delay caused by the opposite parties in settling the claim for the reason that it is the case of the complainant that he used to run the vehicle as a Taxi by engaging the service of a driver and used to earn Rs.8000/- per month as net income after deducting the necessary expenditure for the salary of the driver besides a sum of Rs.9000/- towards monthly instalments payable to the finance company.

So, it is also an admitted fact borne out from the record, more particularly from Ex A.16, when the complainant approached the Insurance Ombudsman, Hyderabad, an elaborate enquiry was conducted and accordingly an award was passed directing the 1st opposite party to pay a sum of Rs.2,50,000/- along with interest as per the DRDA guidelines from 1-3-2007 till the date of payment. It is no doubt true that the award passed by the Insurance Ombudsman is not binding on this Forum but this is the case where the complainant himself approached the said Ombudsman and obtained award, but the complainant has not assigned any reason as to how the amount awarded by the Ombudsman is a meager one.

Under the said circumstances, we find that the complainant is entitled only for a reasonable compensation towards pecuniary loss and for mental agony for the undue delay caused by the opposite parties in settling the claim expeditiously besides the awarded amount as quantified by the Insurance Ombudsman towards reimbursement of the amounts incurred in effecting repairs to the vehicle in question.

POINT No: 3 :

In view of our finding under Points Nos 1 and 2, the complaint is to be allowed by granting a reasonable relief.

In the result, the complaint is allowed directing the opposite parties 1 and 2 to pay to the complainant a sum of Rs.2,50,000/- (Rupees two lakhs fifty thousands only) towards expenditure incurred by him for effecting the repairs as quantified by the Insurance Ombudsman together with interest thereon at the rate of 9% pa., from the date of submission of claim papers ie., from 25-5-2006 till the date of intimation of the settlement of claim ie., 23-1-2007 and again from the date of present complaint ie., 19-5-2008 till the date of realization along with a sum of Rs.50,000/- (Rupees fifty thousands only) towards pecuniary loss and RS.10,000/- (Rupees ten thousands only) towards compensation for mental agony and so also a sum of Rs.1000/-(Rupees one thousands only) towards costs of the complaint within 30 days from the date of due dispatch of free copy of this order.

G.Subramanyam, S/o Nrasimhulu,

Aged about 40 years, Hindu,

Working as a Community Co-Ordinator,

Mandal Mahila Samaikya, B.Kothakota Mandal,

Residing at D.No. 1-500, Ammeneni Street,

Madanapalle Town and Mandal, Chittoor District.
… Complainant


The Branch Manager,

United India Insurance Company Limited,

Divisional Office, D.No. 10114, 1st Floor,

Gandhi Road Extention, Chittoor Town & District.
… Opposite party.

ORDER

This is a complaint filed by the complainant for claiming an amount of Rs.28,500/- under the Insurance Policy towards the loss of vehicle committed theft by some unknown person and also damages of Rs.39,000/- and for costs.


The complainant submits that he purchased the vehicle bearing No. AP 03 K 4458 from the Project Director, DPIP, Chittoor and the vehicle was transferred in his name on 01.09.2006. When the vehicle is in the name of the vendor the project director, DPIP it was insured with the opposite party and the insurance policy is valid for the period from 06.05.2006 to 05.05.2007. The complainant submits that on 10.02.2007 at midnight the vehicle bearing No. AP 03 K 4458 was stolen by unknown persons. Soon after the theft he has lodged a complaint before I town P.S., Madanapalle P.S., who registered a case in crime No. 24 of 2007 under Section 379 of IPC. The investigating Officer submitted his final report stating that the vehicle was un-detectable. After that the complainant submitted a claim form to the opposite party claiming Insurance amount for the loss of the vehicle. He submitted all the relevant papers to the opposite party, but the opposite party repudiated the claim on the ground that he has no insurable interest over the vehicle as on the date of insurance. If the opposite party pays insurance amount to him he would have purchased a new vehicle. Due to non payment of claim, he spent more than Rs. 30 to 40 per day by engaging autorikshaws and sustained loss of Rs. 1,000/- per month and he sustained a total loss of Rs. 19,000/-. Therefore he is claiming insurance amount of Rs.28,500/- for the loss of vehicle and damages of Rs.39,000/- for mental agony. The complaint may be allowed.


The opposite party filed Written Version stating that the Project Director, DPIP has insured the motor cycle and this opposite party insured insurance policy in favour of Project Director, DPIP, Chittoor. The complainant submitted claim form and this opposite party repudiated the claim of the complainant on the ground that he has no insurable interest over the vehicle as on the date of insurance. This opposite party submits that the project director, DPIP, Chittoor is the insurer of the vehicle. If at all there is any transfer of the vehicle, the same has to be informed to the company. The insurer and the present owner of the vehicle should get endorsement of transfer of insurance policy from the insurance company. Since complainant violated the rules by not informing about the transfer of the vehicle in his favour, the complainant is not entitled to claim the insurance amount of the vehicle. The complaint may be dismissed.


On the basis of the averments of the complainant and written version the points that arise for consideration are :

1) Whether the repudiation of the claim of the complainant under the

insurance policy is not proper? If so whether the opposite party

committed deficiency in service?

2) Whether the complainant is entitled to claim the insurance amount of

Rs.28,500/- for the loss of the vehicle bearing No. AP 03 K 4458?

3) Whether the complainant is entitled to claim damages of Rs.39,000/-

towards mental agony?


4) To what result?

The complainant filed Chief Affidavit of Pw.1 and marked Ex.A1 to A4.

The opposite party filed Chief Affidavit of Rw.1 and marked Ex.B1.


Point No. 1 to 3 :-

It is an admitted fact that the complainant purchased the vehicle bearing

No. AP 03 K 4458 from project director, DPIP, Chittoor and the vehicle was transferred in his name. The complainant submits that he did not get the insurance policy transferred in his name U/Sec. 157 (2) of M.V.Act. It is also an admitted fact that the vehicle was committed theft and it was not traced. It is also an admitted fact that the insurance policy was subsisting on the date of theft of the vehicle. It is an admitted fact that the opposite party repudiated the claim of the complainant on the ground that the project director, DPIP, Chittoor has insured the motor cycle and obtained insurance policy from the opposite party. The present owner of the vehicle i.e. the complainant should get an endorsement of transfer of insurance policy in his name from the opposite party. But he did not do so. Since the complainant has no insurable interest towards the vehicle as on the date of insurance, the claim is repudiated.


The learned counsel for the complainant submits that the project director, DPIP, Chittoor is owner of the vehicle as on the date of insurance policy. Subsequently it was transferred in the name of the complainant. Once the vehicle was transferred, it was deemed that the policy was also transferred. The opposite party cannot take such defence. Therefore the repudiation of the claim of the complainant by the opposite party is not legal. In this regard the learned counsel for the complainant relied on the decision reported in 2005 (3) ALT 589 (H.C.) A.P. in National Insurance Company Ltd., rep. by its Divisional Manager v. K.Yadamma and others - wherein their lordships held that

22. From the above, it is further clear that when once the vehicle is insured, it covers any third party risk, including the transferee owner of the vehicle. It would further suggest that any person who uses the vehicle with the consent of the owner, not being actually a transferee owner, for consideration also, comes under the purview of the third party and even in such cases also the owner of the vehicle for the purpose of liability to pay the compensation either under the M.V.Act or under the W.C.Act by the Insurance Company.

……………..

27. Therefore, in the present case, even though the transferor owner was not made a party, the transferee owner being respondent No.5 [since admittedly the owner of the vehicle at the time of the accident], is the “employer” for the purpose of the liability under the W.C.Act. That is enough. Adding of the transferor-owner as a party to the proceedings is only a mere formality, in cases of present nature. Hence, the first contention of the learned Standing Counsel for the Insurance Company cannot be countenanced.


He also relied on the decision reported in 2007 (4) ALT 675 – (H.C) A.P – in Sana Vijaya and others Vs Kannaboina Shankar and others - wherein their lordships held that :-

…5. In G. Govindan V. New India Assurance Company Limited, the Supreme Court held that:

“ A victim or the legal representatives of the victim cannot be denied the compensation by the insurer on the ground that the policy was not transferred in the name of the transferee.

So far as the third party risk is concerned the proprietary interest in the vehicle is not necessary and the public liability continues till the transferor discharges the statutory obligation under Sections 29-A and 31 read with Section 94 of the Act. Till he complies with the requirement of Section 31 of the Act the public liability will not cease and that constitutes the insurable interest to keep the policy alive in respect of the third party risks are concerned. It must be deemed that the transferor allowed other purchaser to use the vehicle in a public place in the said transactional period and accordingly till the compliance of Section 31, the liability of the transferor subsists and the policy is in operation so far it relates to the third party risks.


6. …..

7. The present legal position is that the Insurance Policy runs with the vehicle irrespective of the transfer of the vehicle from one person to other. Though the policy was issued in the name of the transferor, the fact remains that it covers the risk of the vehicle.


8. By following the above decisions, it is held that the Insurance company is liable to pay compensation irrespective of the transfer of the vehicle from the policy holder to another person. In the light of the above legal position, the finding of the Tribunal that the Insurance Company is not liable cannot withstand.

The facts of the above case are not applicable to the facts of the present case. The decisions rendered by their lordships in the decisions cited supra pertains to the liability of the owner of the vehicle vis – à - vis 3rd party risk. In the present case it is not third party risk. The complainant did not inform to the opposite party about the transfer of ownership of the vehicle in his name and he did not get endorsement of transfer of insurance policy in his name. But he is claiming insurance amount of Rs. 28,500/- for the loss of vehicle by theft. Therefore the facts of the above cases are not applicable to the facts of the present case.

The learned counsel for the opposite party contends that the project director, DPIP, Chittoor is the insurer of the vehicle. The insurer and the present owner of the vehicle i.e. the complainant should get an endorsement of transfer of insurance policy from the opposite party. Since the complainant violated the rules by non informing the transfer of the vehicle to the opposite party and failed to get the endorsement of transfer of the policy in his favour he is not entitled to claim any relief. In this regard he relied on the decision reported in revision petition No. 426 of 2007 NCDRC - New Delhi - between United India Insurance Company Limited, Hyderabad Versus Sri V.C. Denadayal, Madanapalle wherein their lordships at page No.5 at the judgment held as follows:

“….Further, in order to avail the benefit of insurance, the purchaser should have informed the insurance company within 14 days of its purchase under Section 157 (2) of the Motor Vehicle Act, 1988 which admittedly has not been done in this case. After purchase of vehicle, the insurance policy has been renewed twice i.e. from 03.02.2000 to 02.02.2001 and from 03.02.2001 to 02.02.2002. In the circumstances, it is apparent that the complainants dishonestly combined the insurance in the name of complainant No.1 and dishonestly claimed ‘no claim bonus’. The real owner complainant had neither registration in her name nor insurance. She has no insurable interest nor privity of contract with petitioner. The original owner cannot maintain any claim against insurance. We are supported in our view by judgment of this Commission in Madan Singh Vs United India Insurance Co. Ltd., and Anr.1 (2009) CPJ 158 (NC) to which one of us (Justice R.K.Batta) was a party. Under the circumstances, the view taken by the State Commission that the respondent/ complainant No. 2 who purchased the vehicle has stepped into the shoes of the respondent/ complainant No.1 and therefore, entitled to the benefit of the insurance is totally erroneous and, therefore, not sustainable. In order to avail the benefit under the policy, there has to be a contract between the parties and defacto possession of the vehicle will not confer any legal right on respondent/ complainant No.2 to avail the benefit under the policy. The findings of both the fora below are therefore totally/ legally unsustainable.


In the above case their lordships held that in order to avoid the benefit of insurance the purchaser should inform the insurance company within 14 days of his purchase U/Sec. 157 (2) of M.V.Act which admittedly has not been done in this case. Their lordships further held that in order to avail the benefit under the policy there must be a contract between the parties and defacto possession of the vehicle will not confer any legal right on complainant No.2 to avail the benefit under the policy.

This Forum relies on the decision rendered in IV (2007) CPJ 289 (NC) by NCDRC – New Delhi between Shri Narayan Singh versus New India Assurance Company Ltd. wherein their lordships held that

9. “As stated above, the second ground given by the State Commission cannot be justified in view of the India Motor Tariff Regulation. Further, on this aspect, learned counsel for the petitioner has produced on record the judgment rendered by the Chhattisgarh State Commission in the case of Ajimuddin v. The New India Assurance Company Ltd., reported in III (2006) CPJ 273=2006(2) CPR 124, wherein the Commission has observed in paragragh 7 as under:

“Learned Counsel for the appellant submitted that GIC has issued special instructions regarding settlement of claim in case of transfer of policy. It was submitted that as per the said instructions the transfer of policy in favour of the purchaser the complainant/appellant should be treated as automatic. It appears that the Tariff Advisory Committee issued a circular regarding automatic transfer of the policy to the new owner/purchaser of the vehicle. In the said circular the decision of Supreme Court in Complete Insulations (P) Ltd. V. New India Assurance Co. Ltd., was referred to. In the said circular it was stated that for policies issued as per revised Motor Tariff, own damage claim which fall within the purview of GR 10 provisions may be settled in full subject to the other terms and conditions of the policy”.

10.“In this view of the matter, the Insurance Company ought not to have rejected the claim on the ground that the vehicle was not transferred in favour of the complainant”.

Their lordships further held that the Insurance Company ought not to have rejected the claim on the ground that the vehicle was not transferred in favour of the complainant. Their lordships further held that the Insurance Companies would be careful in not taking such stand which is contrary to the regulations framed by the India Motor Tariff and Insurance Regulatory Development Authority.

So in view of the decision rendered above the complainant is entitled to claim the insurance amount of Rs. 28,500/- for the loss of the vehicle. Hence the complaint is allowed with costs of Rs.1,500/-.



Points 1 to 3 are answered accordingly.

Point No. 4 :-

In the result the complaint is allowed for Rs.28,500/- with costs of Rs.1,500/- and dismissed for the rest of the claim. The opposite party shall pay the award amount within 6 weeks from the date of order failing which it carries interest at 9% P.A.

The complainant has availed a Medi-Guard Insurance Policy No.100800/48/05/00177 from the 1st respondent through the 2nd respondent. The said policy had a coverage of Rs.1,00,000/-. On 5/8/2005 the complainant fell on the ground while pulling his vehicle at the Tsunami affected area of Kollam district. He was admitted to the Ayurveda hospital at Pala in the Kollam district and admitted there for treatment from 9/8/2005 to 26/8/2005. The complainant had spent Rs.27,130/- for treatment. Later he had submitted the claim form. But the claim was repudiated. Hence the complaint filed.

2. The averments in the counter are as follows:
The complainant himself slipped and fell down on the road and sustained Back pain as stated by him. Most of this type situations only sprain could be occurred. The treatment given to the complainant is for a pre-existing disease. The Company panel doctor is of the opinion that the back pain occurred not only due to the pulling of the vehicle, but it was aggravated previously. So this treatment given to the complainant is for pre-existing disease and the respondent is not liable to compensate. The treatment given to the complainant cannot be given together during this very short span of time. So the treatment cannot be considered as a pure Ayurvedic treatment. And Ayurvedic treatment only in Government Hospitals are covered under this policy. The complainant has treated in a private Ayurvedic Hospital which is excluded from giving compensation. Hence dismiss the complaint.

3. The points for consideration are :
1) Is there any deficiency in service by the respondents ?
2) If so reliefs and costs ?

4. The evidence consists of Exhibit P1 and Exhibits R1 to R6.

5. Points : According to the complainant he is a policy holder of the medi-guard insurance policy issued by the respondents. On 5/8/05 the complainant fell down on road while pulling his vehicle with his colleagues at the Tsunami affected area and sustained back pain. Later on 9/8/05 he has admitted in the Karuna Auirvedic Hospital, Pala and treated there from 9/8/05 to 26/8/05. He had incurred Rs.27,130/- for the treatment. The Complainant submitted the claim form with all the details. But the claim was repudiated. The respondents have stated that the treatment was for a pre existing disease and the treatment Elakizhi, Navarakizhi, Lepam and Vasthi cannot be given together. Moreover Ayurvedic treatment only in Government hospitals are covered under the policy. Hence they are not liable to give compensation and policy benefits.

6. The case of complainant is that he fell down on road on 5/8/05 and suffered back pain and was admitted in ‘Karuna’ Ayurvedic Hospital for treatment on 9/8/05. If there were injuries out of the accident he will be taken to Allopathic Hospital immediately. In this case the complainant was not taken any treatment and not taken to any hospital or even a clinic at that time or at that day. After that he was admitted in an Ayurvedic Hospital only on 9/8/05 and taken some treatment. There he spent for 17 days. According to him he was under treatment for back pain. Exhibit R1 shows the
medicines taken and the nature of treatment. According to the respondents these treatments of Elakizhi, Navarakizhi, Lepam and Vasthi cannot be given together during this very short span of time and the Foot Massage does not have any reference in classical Ayurvedic treatment. So according to them the treatment cannot be considered as pure Ayurvedic treatment. Exhibit R6 is a letter from Dr.A.V.Aravindakshan, Chief Physician, Amrutham Aryavaidya Pharmacy, states that the treatments of Elakizhi, Navarakizhi, Lepam and Vasthi cannot be given together during this very short span of time and the Foot Massage is not a classical treatment in Ayurveda. So according to them the complainant was not treated for the disease suffered on 5/8/05. During argument, the counsel for respondents stated that the complainant had undergone treatment for body illness and not undergone treatment for any particular disease. The version of respondents establishes their case and can came to a conclusion that the complainant was not under treatment for a disease suffered on 5/8/05 and not entitled for any benefits under this policy.

7. If the disease is all of a sudden occurred one he will immediately took a nearest hospital for treatment. The situation here is different and there is all possibility of a treatment for pre-existing back pain. If the back pain occurs as alleged by the complainant an immediate treatment is necessary and will be taken to hospital. There is no such situation and the complaint is liable to be dismissed.

8. There is no deficiency in service and the complainant is not entitled to get any reliefs.

The complainant had taken a policy under Kamadhenu Insurance Scheme and the complainant was regularly paying the premium without any default. That due to pain and swelling on the breast of the complainant, she was admitted as an inpatient in Directorate of Medical Education, Medical College Hospital, Thiruvananthapuram and was discharged on 03.07.2001 and she is still continuing the treatment. The complainant had incurred more than ten thousand rupees for her treatment. As per the said insurance scheme, the opposite party is liable to pay the entire medical expense for a period from 29.04.1999 to 28.04.2002. But wilfully the opposite party has cheated the complainant and as per the scheme the complainant has the absolute right to realise the amount from the opposite party. Hence this complaint for payment of the amount as per the insurance premium along with other reliefs.

The insurance company, the opposite party, has filed their version contending as follows: Admittedly the complainant is a beneficiary of the Kamadhenu Insurance taken by the husband of the complainant. The complainant submitted a claim for the medical expenses for the treatment for pain and swelling on her breast. Along with the claim form, she submitted the medical records and the essentiality certificate from the doctor of Medical College Hospital, Thiruvananthapuram showing a medical expense of Rs. 6386/-.

The referral O.P card from the Medical College hospital shows that she was under treatment from 22.06.2001 to 03.07.2001. In that record the doctor has noted against the column complaints and finding that “Patient came with history of swelling left breast – 2½ years. History of sudden increase in size 20 days”. The policy commences only on 29.04.1999 and this alleged complications/ailment was pre-existing even at the time of inception of the policy. As per the condition III(1) of the policy, pre-existing disease are excluded and hence the claim of complainant was not payable. There is no irresponsible attitude from the side of the opposite party. There is no deficiency of service in terms of the policy conditions. Hence prays for dismissal of the complaint.

The complainant and opposite party have filed their affidavits. Exts. P1 to P16 were marked on the part of the complainant and Exts. D1 to D3 were marked on behalf of the opposite party.

From the contentions raised the following issues arise for consideration.

1.

Whether the act of the opposite party in repudiating the claim is justifiable?
2.

Whether there is any deficiency in service on the part of the opposite party?
3.

Reliefs and costs.

Points (i) to (iii):- There is no dispute with regard to the policy. The complainant alleges that for the treatment for pain and swelling on her breast she was admitted in the Directorate of Medical Education, Medical College Hospital, Thiruvananthapuram wherein she was treated and discharged on 03.07.2001 and that she had incurred more than ten thousand rupees for her treatment, but the opposite party has not yet refunded the amount. The opposite party has contended that since the disease of the complainant was existing prior to the taking of the policy, the claim is not payable as per the policy conditions.

We have perused all the records on file. Exts. P6 and D1 are one and the same. As per Exts. P6 and D1 which is the copy of the referral O.P, Directorate of Medical Education, Medical College Hospital, pertaining to the complainant, it is evident that, under the head complaints and findings, it has been noted that patient came with history of swelling left breast- 2½ years. As per Ext. P6 date of admission is 22.06.2001 and that of discharge is 03.07.2001. As per Ext. P1, period of insurance is 3 years from 29.04.1999 to 28.04.2002. Exts. P6 and D1, wherein the history of the patient is recorded on the basis of the information given by the complainant also, would prove that the disease of the complainant is in existence for the last 2½ years which means that at the time of taking of the policy, the complainant has been suffering from the disease mentioned in the complaint.

The learned counsel for the opposite party has produced the decision of the Hon'ble National Commission reported in I (2007) CPJ 202(NC), wherein it has been held that the repudiation of the claim by the petitioner who suffered heart problem since 1994 itself is justifiable as the same being pre-existing not covered under policy.

From the records on file, it is evident that at the time of purchase of the policy, the complainant has not disclosed that she was suffering from the ailment prior to the taking of the policy itself and therefore it amounted to mis-statement in the proposal form. The learned counsel for the opposite party had argued that pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of the insurance whether or not the insured person had knowledge that the symptoms were relating to the sickness complications arising from pre-existing disease will be considered part of that pre-existing conditions. In support of the said contentions of the opposite party, the decision of the Union Territory Consumer Disputes Redressal Commission Chandigarh reported in III(2003) CPJ 608 was also produced.

The opposite party has succeeded to establish and prove what has been alleged in the letter of repudiation. We find that the communication by the Insurance Company to the complainant as per Ext. D2 has been taken in good faith after due application of mind and there has been no deficiency in service on the part of the opposite party. Hence the complaint is liable to be dismissed.

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

K.A. Razak,

S/o. U.A. Hassan,

R/A. Koornadka House,

Darbe Post, Puttur,

Dakshina Kannada. …….. COMPLAINANT



(Advocate: Sri. Sanjay D)



VERSUS



1. The Manager,

United India Insurance Co. Limited.,

1st Floor, Prabhu Building,

Main Road, Puttur,

Dakshina Kannada.



2. The Manager,

TTK Health Care Services Pvt. Limited.

7, Jeevan Bhimanagar,

Main Road, HAL 3rd Stage,

Bangalore – 75. ……. OPPOSITE PARTIES


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 Parties claiming certain reliefs.

The Complainant is the holder of mediclaim policy along with his family bearing policy No.070805/48/ 08/97/00000007 the said policy is valid from 5.4.2008 to 4.4.2009. The sum assured under the policy was for Rs.50,000/- each. The 2nd Opposite Party is the 3rd party administrator and the 1st Opposite Party issued the policy.

The Complainant alleged that on 23.5.2008 his wife had rashes on her body and admitted to Indira Hospital, Falnir, Mangalore on 24.5.2008 and she has been treated and discharged on 26.5.2008 and he spent Rs.4,052.95. Thereafter the Complainant submitted the claim form to the Opposite Parties but the Opposite Parties did not settle the claim hence the Complainant 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 Parties to pay Rs.4,052.95 along with interest at 12% p.a. from 28.5.2008 till payment and also claimed Rs.25,000/- as compensation and cost of the proceedings.

2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version admitted the policy and contended that the discharge summary submitted by the Complainant did not contain any information hence they could not reimburse the amount and contended that there is no deficiency.

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 Parties 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.K.A. Razak (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.V.P. Naik (RW1), Branch Manager of the Opposite Party filed counter affidavit and produced four documents as listed in the annexure.

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 present case, the Complainant filed evidence and thereafter the Opposite Party also filed evidence. During the pendency of the proceedings Opposite Parties paid Rs.4,053/- being the medical expenses but not paid any compensation or cost of the proceedings.

The Complainant after receipt of the above amount pressed the complaint for compensation and cost of the proceedings. However this Forum in the interest of natural justice directed the cost of Rs.1,000/- to the Complainant but the Opposite Party not complied the same.

In the instant case, it appears on record that the Complainant’s wife got admitted on 24.5.2008 and she was inpatient till 26.5.2008. The above claim was settled recently i.e., on 9.6.2008 by filing a memo before this Hon'ble Forum paid Rs.4,053/-. By considering the facts and circumstances, we are of the considered opinion that there is an inordinate delay on the part of the Opposite Party to reimburse the mediclaim. However, the Opposite Party ought to have paid the entire amount at the earliest since they have not paid the amount the Complainant approached this Hon'ble Forum in order to get the relief. By considering the above, we hereby direct the Opposite Party No.1 i.e., United India Insurance Co. Ltd. to pay Rs.1,000/- to the Complainant as cost of the proceedings. The same shall be paid within 30 days from the date of this order.


6. In the result, we pass the following:

ORDER

The complaint is allowed. Opposite Party No.1 i.e., United India Insurance Co. Ltd., is hereby directed to pay Rs.1,000/- to the Complainant as cost of the proceedings. The same shall be paid within 30 days from the date of this order.

Shri Nek Ram S/O Shri Nanak Chand,

R/O Village Chaklu, P.O. Kunihar, Tehsil Arki,

District Solan, H.P.
… Complainant.

Versus


1. The United India Insurance Company Limited

The Mall, Solan, H.P.

Through its Branch Manager.


2. State Bank of Patiala,

Kunihar, Tehsil Arki, District Solan, H.P.

Through its Branch Manager.



…Opposite Parties

O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant (hereinafter to be referred as the complainant) by invoking the provisions of Section 12 of the Consumer Protection Act, 1986, against the OPs. The complainant avers that, he, purchased a brown colour cow, which was insured by him with the OP-Company for a sum of Rs.12,000/-. It is averred that the aforesaid cow died during the subsistence of the insurance policy and as such, the matter was brought to the notice of the OP-Company for release of the insurance amount. The OP-Company dilly-dallied its payment on one pretext or the other. Hence, it is averred that there is apparent deficiency in service on the part of the OP-company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant-concern.

2. The OP-Company, in its written version, to the complaint, raised preliminary objection, vis-à-vis maintainability of the complaint. On merits, it is contended that the insured cow died on 06.02.2006, as per the information given by the financier and as such the financier bank was requested to submit the necessary documents, and on receipt of the documents, it was revealed that the claim of the complainant was fake and fabricated, as no postmortem was conducted on the insured cow purported to have died on 06.02.2006. Hence, it is denied that there is any deficiency in service on the part of the OPs-Company.

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

4. The OP-Company does not deny the fact that it had insured one female cow of jersey breed, of, dark brown red colour. It contests the fact that the live stock of the complainant which was insured with it, was, not the one which met its end, on, the ground that their, is, variance, in, the date of the demise of the deceased live stock, as, reflected, in, the postmortem report and as purportedly intimated to the OP under Annexures R-2 & R-4, in as much, as, the postmortem details the demise of the live stock on,18.02.2006, yet, on the purported intimation by the complainant to the OP-Company, it is, 06.02.2006, therefore, it is contended that the postmortem report, is, of no probative force in concluding that the insured live stock met its end. . However, the demise of live stock, in, the insurance cover and in the postmortem report, are, alike.

5. While reverting to the contention of the OP-Company on the strength of the variance, in, Annexures R-2 & R-4 and the postmortem report, of, the date of demise of the live stock, hence, the postmortem report being of, no, probative force, yet, the effect of Annexures R-2 & R- 4 comes to wane, as, the purported intimation by the complainant, to the OP-Company, about the demise of the live stock as, detailed in Annexure R-2 & R-4, is, not annexed along with the aforesaid annexures. For lack of Annexures R-2 & R-4 being unaccompanied with the purported intimation by the complainant to the OP-Company regarding the date of demise of the live stock, as detailed, in it, then, as such, the aforesaid detailing the date of demise of the live stock on the purported intimation of the complainant, appears to be, merely fictitious. More so, when it is the record of the OP-Company and could well have been fabricated, so as to defeat, the, case of the complainant. Naturally, the postmortem report cannot be discarded.

6. In the light of our findings ousting the probative force of Annexures R-2 & R-4, as a sequitor, when there, is, a like recitation in the insurance cover in the postmortem report about the details of the cow, an inference that the cow as recited in the postmortem report was the one which was insured with the OP-Company, is, to be drawn, hence, non-settlement of the claim of the complainant by the OP-Company, was, not legally justified and tentamounts to deficiency in service.

7. In view of the above, we, allow this complaint and direct the OP-Company to indemnify the complainant to the extent of insured sum, i.e. Rs.12,500/-, as reflected in insurance cover Annexure R-1, along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, till actual payment is made. The litigation cost is assessed at Rs.1,000/-payable by the OP-Company to the complainant. This order shall be, complied with, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order.

Shri Hira Lal Verma S/O late Shri Tula Ram,

R/O Village Malgi, P.O. Pandoa, Tehsil Suni,

District Shimla, H.P.
… Complainant.
Versus

United India Insurance Company Ltd.,

Through the Divisional Manager,

Divisonal Office, Timber House, Shimla, H.P.

…Opposite Party
O R D E R:

Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986, against the OP-United India Insurance Company “in short OP-Company” on the allegations that he is owner of Mahindra & Mahindra Pick Up, which bears registration No.HP-63-0614 vide Annexure C-2. It is averred that the aforesaid vehicle, was, insured with the OP-Company, vide insurance policy bearing No.111300/31/03/03080 valid from 29.03.2004 to 28.03.2005 vide Annexure C-1, which met with an accident on 18.02.2005, resulting in extensive damage. The complainant, further, proceeded to aver, that, the factum of accident was brought to the notice of the OP-Company, as also, Rapat No.9 dated 19.02.2005, was lodged with Police Chowki Suni. It is averred that the OP-Company settled the own damage claim of the vehicle, and paid only Rs.74,944/-, against total loss of Rs.1,57,256/- Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, lack of cause of action, and settlement of the claim on full and final payment. On merits, it is, contended, on behalf of the OP-Company, that, on receiving intimation about the accident, it has appointed an independent surveyor to assess the loss and damage, caused to the vehicle, after deducting the depreciation @ 5% on metallic parts and 50% on non-metallic parts, assessed the loss to the tune of Rs.72,444.95 on repair basis, and, a sum of Rs.69,244/- was received by the complainant in full and final settlement of the claim. Hence, it is denied that there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

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

5. The OP-Company does not dispute the fact that the vehicle bearing registration No. HP-63-0614, was insured with it, during the period 29.03.2004 to 28.03.2005. The parties also do not wrangle over the fact that the aforesaid vehicle, met with an accident, on, 18.02.2005, during the currency of the insurance policy and causing extensive loss to it.

The factum of assessing the loss by the valuer and its payment having been received under Annexure R-1, by the complainant, is, also not in dispute. The complainant asserts that he has been defrayed lesser amount, than, the actual amount, incurred by him, on the repairs of the vehicle. Since, the complainant does, not, contest that the payment detailed in Annexure R-1, was received, by, him. Hence, with acceptance of the amount under Annexure R-1, by the complainant, and, that, too without protest, estops him to re-agitate, before this, Forum the legality of the amount, as, adjudged by the valuer in Annexure R-2.

6. For reiteration, not only the complainant, is, now, estopped, but also, his having waived his right under Annexure R-1, cannot proceed, to, impeach the report of the valuer contained in Annexure R-2. Hence, the complaint, being without any merit, is liable to be dismissed.

Municipal Corporation Shimla

Through its Commissioner.
… Complainant.
Versus
The United India Insurance Company Ltd.

Through its Sr. Divisional Manager,

Divisional Office, Timber House, Shimla-1.
…Opposite Party
O R D E R:
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-corporation avers that it is owner of Car Ambassador bearing registration No. HP-03-1865, which was insured with the OP-Company, vide Annexure C-2, for the period 18.11.2003 to 17.11.2004, for an amount of Rs.1,90,000/-. The complainant-corporation further proceeded to aver that the aforesaid vehicle met with an accident near Shoghi, District Shimla, during the subsistence of the insurance policy, i.e. on 20.11.2003. It is, averred, that the fact of its having met with the accident, was reported to the Police as well as OP-Company, who deputed its surveyor to conduct the survey. Thereafter, insurance claim was lodged with the OP-Company, who dilly-dallied its settlement. Hence, it is asserted that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant-corporation.

2. The OP-Company filed detailed reply to the complaint. The took preliminary objections, regarding maintainability of the complaint, breach of terms and conditions of the insurance policy and validity of the driving licence of driver. On merits, it was contended that the driving licence of the driver on the date of accident, i.e. on 20.11.2003 was not valid and effective, as the licence had expired on 04.12.2001. It is contended that since there was breach of terms and conditions of the insurance policy, the OP-Company was legally justified in repudiating the claim of the complainant. Hence, there being no deficiency in service, the complaint is sought to be rejected.

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

4. The insurance of the vehicle bearing registration No.HP-03-1865, with the OP-Company is not in dispute. It is also not in dispute between the parties at contest, that the aforesaid vehicle met with an accident on 20.11.2003, at the time when the insurance policy was alive.

The factum of reporting the matter to the OP-Company, and appointment of surveyor by it, is, also not in dispute between the parties at contest. The dispute is only with regard to the validity of the driving licence of the driver, namely Shri Brij Lal, who was driving the vehicle at the time when the afflicted vehicle met with an accident, i.e. on 20.11.2003. It is contended on behalf of the OP-Company, through, its, learned counsel that the licence of Shri Brij Lal, driver, who was driving the afflicted vehicle at the relevant time, i.e. on 20.11.2003, stood expired on 04.12.2001, as such, he was not possessed of a valid and effective driving licence.

5. It is also 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 namely Brij Lal, in, the light of Annexure C-5, reflecting its renewal in November 2005, whereas, the accident occurred on 20.11.2005 at which stage Annexure C-5, does not reflect it to be in vogue or its having been renewed by the Motor Licensing Authority. Besides the affidavit sworn by authorized functionary of OP-Company manifests, 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, acquires conclusiveness. Obviously, since the complainant in rebuttal could not prove the fact that the driver Brij Lal 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.

6. 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.

M/S Mahajan Traders, Ram Bazar (Lower Bazar) Solan, Tehsil and District Solan, H.P. through its sole proprietor Shri Rajinder Kumar S/O Shri Gian Chand, resident of Lower Bazar, Solan, Tehsil and District Solan, H.P.
… Complainant.
Versus
The United India Insurance Company Limited

Branch Office, The Mall, Solan, Tehsil and District Solan, H.P. Through its Branch Manager.

…Opposite Party
O R D E R:
Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by M/S Mahajan Traders, through its sole proprietor Shri Rajinder Kumar, (hereinafter to be referred as the complainant-concern) by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. It is averred that the complainant-concern is a sole proprietorship concern of Shri Rajinder Kumar, who is owner of the said concern. The complainant-concern proceeded to aver that it got business and stock in trade etc. insured with the OP-Company vide insurance policy bearing No.111301/48/04/00282, commencing from 14.06.2006 to 13.06.2006. It is averred that on 16.06.2004, at about 9 AM, when the complainant went to open his shop, he found the main shutter of the shop deformed and damaged and accordingly he brought the said fact to the notice of the OP-Company as well as Police, upon which FIR bearing No.190/2004 dated 16.06.2004 under section 457/380 was lodged at Police Station Solan.

Thereafter, the complainant lodged the insurance claim with the OP-Company. It is contended that the OP-Company, firstly delayed the settlement of the claim and finally vide letter dated 15.12.2004, closed the claim of the complainant on the ground of ‘not payable’. Hence, it is averred that there is apparent deficiency in service on the part of the OP-company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant-concern.

2. The OP-Company filed reply to the complaint. The preliminary objections regarding maintainability of the complaint, violation of the terms and conditions of the insurance policy, there being no deficiency in service, etc. were raised. On merits, it is admitted that the complainant had purchased the insurance policy and that the loss was also reported to them.

It is contended that Shri Kuljit Singh Baweja, the Insurance Surveyor and Loss Assessor was appointed to inspect the site who vide report dated 10.11.2004 observed that the claim was not payable under the terms and conditions of the insurance policy, and as per the terms and conditions of the policy, the OP-Company was liable for the loss of money by burglary or house breaking after the closure of the business working hours of the shop, i.e. when the shop remained closed provided the cash/money was kept in safe burglar resisting steel cup boards/cash box under proper and adequate lock and keys. It is contended that the money lost in the burglary was not kept in a safe steel cup board or cash box under proper and adequate lock and key, by the complainant, but the same was kept under the sale counter openly in the cash box. It is further contended that the claim was also not payable on account of compulsory excess clause of Rs.10,000/-. It is denied that there is any deficiency in service on the part of the OPs-Company.

3. Thereafter, the parties led evidence by way of affidavits and documents in support of their rival contentions.

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

4. The complainant contends through, its, counsel while depending upon the assertion in the complaint duly supported by an affidavit that the non-settlement of his claim by the OP or its repudiation by the OP, is, wholly unjust, as, when the burglary in his commercial premises took place, at, night hours qua which an FIR was lodged, photo copy whereof is on record, the OP was obliged, in terms of the insurance policy to honour his claim. The OP seeks to exculpate the claim of the complainant, on, the strength of a condition in the insurance policy purchased by the complainant from, it, under which the liability of the insurer would arise only in the eventuality of money or other insurables covered under the insurance policy and which become the subject matter of theft during the night hours are kept under lock and key.

However, the above pre-requisite necessitating compliance or to make the claim enforceable against the OP as, purportedly stolen from the commercial premises of the complainant during night hours has been contended to be having been not satisfied, in as much, as, it, not having been kept under lock and key, is, sought to be urged on the strength of Annexure R-2. Therefore, it is, contended that the aforesaid solemn condition in the insurance policy having come to be not complied with rather, it rather, having come to be breached, its liability under it ought not to be fastened on it. Annexure R-2 details the fact that the person who prepared it has reflected in it, that, the cash box, in which, the cash was purportedly kept and which cash was subject the matter of theft, was lying empty on the counter.

He does not reflect in it that the cash box did not have any lock and key or that the lock and key was broken or that the cash allegedly stolen was not kept in safe burglary. The mere fact that he had detailed in it that the cash box, hence was, in, a detached condition, cannot give ground to the counsel for the OP, to, canvass on the score the fact, of, its being detached or it having been found on the counter, comprising sufficient evidence of the cash purportedly kept in and which was subject matter of theft, not, having been kept in safe burglary, especially, when, no, photographic evidence has been adduced to portray the fact that the empty cash box found on the counter, hence, detached did not have any provision for its being secured by a locking provision to obviate burglary.

In the absence of such evidence, we, are constrained to discountenance the contention of the learned counsel for the complainant that the complainant has not concurred with the terms and conditions of the insurance policy, in as much, as, Annexure R-2, for, reason aforesaid does not, afford evidence of the cash box in which the cash was purportedly kept by the complainant was not possessing any lock and key or was, not, having locking provisions to obviate burglary. More so, when the FIR reflects the fact that the cash was kept in a ‘gala’ which is the ordinary manner of its keeping by a prudent businessman. Therefore, the terms of the relevant provision of the insurance policy have been complied, hence, enjoying the insurer company, its liabilities confined in it, to the complainant. Resultantly, the complaint is allowed and complainant is held entitled for a sum of Rs.9,000/- to be indemnified by the OP for the loss, it suffered.

6. In view of the above, the complaint is allowed. We direct the OP-Company to indemnify the complainant to the extent of Rs.9,000/- along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, which happens to be filed on 18.08.2006, till making actual payment. The litigation cost is quantified at Rs.1,000/-.

Shamsher Singh s/o Sh. Joginder Singh R/o Ravidas Road, Banga Tehsil & District SBS Nagar.

Complainant.

Versus

United India Insurance Company Ltd. Branch Office , Nawanshahr Tehsil & Distt. SBS Nagar.

Respondents

Shamsher Singh (hereinafter called as complainant), has filed this complaint against the United India Insurance Company Ltd. Branch Office , Nawanshahr Tehsil & Distt. SBS Nagar (hereinafter called as Op) for issuance of a direction to the Op to pay a sum of Rs 2,50,000/- on account of expenditure incurred by him on his treatment in addition to Rs 10,000/- as damages.

2 Admitted facts of this complaint are that the vehicle bearing registration no. PB-32-4338 Rhino RX DLX Model 2007 owned by Sanjiv Kumar s/o Bal Krishan was insured with the OP vide insurance cover note CHR2K6/875741 for the period from 09/07/2007 to 08/07/2008. It is alleged by the complainant that on 11-10-2007 he was traveling in the said vehicle which met with an accident. He suffered multiple injuries and remained admitted in the hospital at Ludhiana. He had incurred expenditure of Rs 2,50,000/- on treatment. The claim was submitted by the complainant to the Op but it did not take any step to settle the claim. The complainant then had to file a complaint in the Forum which was allowed vide order dated 26/09/2008 directing the Op to decide the claim within a period of 1 ½ month from the date of receipt of copy of the order. On the failure of the Op to comply with that order an application U/s 27 of Consumer Protection Act was filed in which the Op was burdened with Rs 500/- as cost.

It is alleged that vide letter dated 27/01/2009 issued by the Op the complainant was informed that his claim was not payable under “Own Damage Section” and the complainant if so desired can file a separate case before M.A.C.T. The repudiation of the claim by the Op is stated to be void as the complainant was traveling in the insured vehicle with the approval of Sanjeev Kumar and as such the case was not covered under “Own Damage Section”. Further that in the order dated 26/09/2008 this Forum had already held that the complainant is Consumer as defined U/s 2 of the ‘Consumer’ Protection Act. The Op was thus stated to be deficient and negligent by repudiating his claim. Hence this complaint.

3 In the written version filed by the Ops, the aforesaid facts were not disputed. However it was contended that the claim of the complainant had been validly repudiated as he was neither hirer of the alleged vehicle nor such private vehicle can be hired in utter contravention of the mandatory provisions of Motor Vehicle Act 1988 as well as the terms and conditions of the insurance policy. A prayer for dismissal of the complaint was accordingly made.

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

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

5. It is not in dispute that the claim of the complainant has been repudiated by the Op vide letter dated 27/01/2009 copy of which is Ex C1 on the ground that the injury claim raised by the complainant was not payable under “Own Damage Section” and the complainant was given the option to file a separate case in M.A.C.T., if he so desired. The perusal of Ex C-2 copy of letter dated 27/10/2008 issued by the Op to Sanjiv Kumar makes it clear that the cover note of the vehicle was in the name of Sanjeev Kumar /o Balkrishan which fact is even mentioned by the complainant, while the vehicle had been purchased by him in the name of his wife Smt. Sandeep Kumari and temporary registration in the name of Mrs. Sandeep Sharma. The claim lodged by Sanjeev Kumar was declined on the ground that he had no insurable interest in the vehicle.

6. The complainant has not produced copy of the order of this Forum dated 26/09/2008 passed in his previous complaint. However perusal of the file of that complaint indicates that in earlier complaint, the complainant was held to be consumer as defined 2 (1) (d) (ii) of the Consumer Protection Act on the allegations that he was traveling in the insured vehicle with the approval of Sanjeev Kumar insured which fact was not disputed in the complaint. Accordingly a direction was issued to the Op to pass an appropriate order on the claim filed by the complainant.

The said order did not debar the OP from repudiating the claim in accordance with the rules as done by it vide letter dated 27/01/2009 copy of which is Ex C-1. It is alleged in this complaint that the complainant was traveling in the insured vehicle with the approval of Sanjeev Kumar insured, where as the letter Ex C-2 it stands established that Sanjeev Kumar was not the owner of the insured vehicle and rather his wife was the registered owner of that vehicle. The claim of Sanjeev Kumar was also declined as he was no having insurable interest in the vehicle. In such state of affairs it was yet to be established, if the complainant was actually traveling in the insured vehicle and that also with the approval of Sanjeev Kumar who himself was not owner of the vehicle.

If so what right the complainant acquired for lodging claim with Op. The proceedings before this Forum are of summary nature, while the aforesaid facts can only be determined through evidence. The Op can not be held to deficient in service in repudiating the claim of the complainant on the ground that it was not payable under “Own Damage Section” especially when an option was given to the complainant to file a separate case in M.A.C.T.

7. In view of the aforesaid facts, we find no merit in the complaint and as such the same is dismissed.

1. M/s National Industries, E-128, Focal Point, Ludhiana, through its partner, Sh. Navneet Jairath;

2 Sh. Navneet Jairath, Partner, M/s National Industries, E-128, Focal Point, Ludhiana.

(Complainants)

Vs.
United India Insurance Company Limited, Divisional Office No. V, 92, The Mall, Ludhiana through its Divisional Manager.

(Opposite party)

O R D E R
1. Complainant no.2 is partner of firm complainant no.1, which had obtained Money Insurance Policy No.201100/48/05/00671, valid from 8.10.2005 to 7.10.2006 from opposite party. It was not a new policy, but renewal of previous policy. Under the policy, opposite party agreed to indemnify the complainant firm against loss of money, while in transit between premises and the bank or post office and vice versa. On 18.2.2006, purchase-man of complainant firm Mr. Suresh Kumar was going on a car with Mr. Sachin Bembi, partner of M/s Campbell International, Ludhiana, to deposit cash amount of Rs.2.90 lacs in the ICICI Bank, Feroze Gandhi Market, Ludhiana, where they had account.

The cash was kept in a bag placed on rear seat of the car. The bag also contained Rs.1.85 lacs of M/s Campbell International, US# 30000, one laptop, a mobile phone and documents. On way to the bank, employee of complainant no.1, stopped the car for few minutes at Malhar Cinema Road, Ludhiana. Both of them remained sitting in the car. When Sh. Sachin Bembi was sitting in the car, a young child aged about 4/5 years, started knocking at the window of the car with a pebble, upon which, Sh. Sachin Bembi went out of the car, to stop the child from doing so. But the child started scratching the car with pebble and started running towards the bonnet. Sh. Bembi ran after him, to prevent damage to his car. In the meantime, Sh. Suresh Kumar came back and they went to his place.

When both of them discovered that the bag kept in the car, had been stolen and the child befooled them, who aided theft of the cash from the car, then both of them came to the site of incident, but could not find anything. Theft report was lodged vide FIR No.48 dated 18.2.2006 in P.S. Divn. No.5, Ludhiana. Loss was also reported to the opposite party and also lodged claim, provided all assistance and helped opposite party. Police could not trace the cash and issued untraceable certificate dated 2.6.2006. After six months, opposite party instead of settling the claim, closed the file vide letter dated 31.8.2006.

Thereafter, took up matter with opposite party, sent reminders, but to no effect. Opposite party thereby caused harassment, due to wrongful rejection of legitimate claim. Such act on part of opposite party is claimed illegal and unlawful, by filing this complaint u/s 12 of the Consumer Protection Act, 1986. Hence, claimed that are entitled for the loss suffered under the policy alongwith compensation of Rs.12 lacs.

2. Opposite party contested the claim by repudiating the allegations of the complainant. However taking of money insurance policy from them by the complainant along with lodging claim under the policy and repudiating the same have been admitted to be correct. But have justified the repudiation on the grounds mentioned in the letter. Because the claim was not payable under exclusion clause no.1-A of the insurance policy, as transaction was not direct. Under the policy, risk of loss of cash from factory premises to bank from bank to factory premises, was insured and covered.

But as per version of the complainant, brought cash in bag along with laptop, mobile, US Dollars etc. from factory premises situated at Focal Point, Ludhiana, to deposit the same in ICICI Bank situated at Feroze Gandhi Market, Ludhiana. But instead the complainant first went to T.V. Shop situated on Malhar Cinema Road to get back their repaired T.V and from there went to their house J-23, situated at Sarabha Nagar, Ludhiana, where they found their cash bag missing .

So, it is clear that transaction was not direct, therefore, the claim has rightly and legally been repudiated. Averred that after receipt of claim, Sh. Rajesh Nakra Surveyor and Loss Assessor was appointed to find the cause and circumstances in which the loss occurred. The surveyor after examining the facts and documents, came to the conclusion that the transaction was not direct, so, the claim was not maintainable, which he concluded vide report dated 30.7.2006. After considering the report of the surveyor, opposite party declared the claim as ‘No Claim’ vide letter dated 31.8.2006. Complaint is stated to be false, frivolous and not maintainable. Complainant having no locus standi, no cause of action to file the same.

3. In order to prove their respective versions, both the parities led their evidence by way of affidavits and documents.

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

5. Claim of the complainant was repudiated vide letter Ex.C5 (R5) of the opposite party. This letter reads as under:-

“Re: Your claim no.201100/48/05/07/90000234 Srl. No.1 on policy no.201100/48/05/07/00000671



Please note that your file stands closed, on account of Sr. No.1 and 3 below:

(1) Inspite of letters/reminders sent to you, you have not complied with the required papers/documents



(2) As you have withdrawn your claim by giving your consent through your letter dated ……………..we are closing your claim file as NO CLAIM.



(3) We are closing your claim file, on account of the following reasons:



Since as per survey report, transaction was not direct,hence, as per Policy condition, claim is not tenable and file be being as ‘No Claim’.



We absolve ourselves from any further liabilities, arising out of this claim; which please note.”



6. Two grounds were agitated by opposite party to repudiate the claim. First ground was non-complying with letters/reminders of opposite party. But no material is placed by opposite party on the record to prove that communication addressed by them to the complainant remained un-complied or un-answered. Hence, such objection on the part of opposite party appears to be false and ground less.

7. Second objection for closing file was that transaction was not direct and as per policy condition claim not tenable. This conclusion was based upon Ex.R2 report of the surveyor M/s Rajesh Nakra & Company. The Surveyor concluded after proper enquiry that transaction of cash was made by the complainant from factory premises for depositing in ICICI Bank Ltd, Feroze Gandhi Market, Ludhiana, and that transaction was not direct, as in the instant case, money was carried from factory premises to one T.V. Shop, situated at Malhar Cinema Road, Ludhiana and then to J-23 Sarabha Nagar, Ludhiana at Mr. Sachin’s residence, so, the claim not maintainable.

8. Now, in the light of aforesaid observations of the surveyor/loss assessor of the opposite party, we would prefer to look into terms and conditions of the money insurance policy, copy of which is Ex.R1 (C1). Vide that policy, Insurance Company hereby agreed subject to terms and conditions and exclusions contained, endorsed or otherwise expressed thereon to indemnify the insured against the loss of

(a) Money in transit, but the insured or insured’s authorized employee(s), occasioned by Robbery, Theft of any other fortuitous cause as detailed in Section 1;



(b) Money by burglary robbery or hold up whilst in the insured’s premises as detailed in section II in a Safe or Strongroom provided always that the limit of the Company’s liability for any one loss shall in no case exceed the amount specified against the respective section in the said Schedule.



SECTION I

(i) Money for payment of wages, salaries or for petty cash in direct transit from the bank to the insured’s premises from the time the cash is received at the bank by the insured or the authorized employee(s) of the insured until delivery at the premises or other place of disbursement and whilst there, until paid out provided that after business hours such cash be secured in locked Safe or locked Strongroom on the premises for a period nor exceeding 48 hours from the time of arrival of such cash at the said premises or places or disbursements. Cheques drawn by the insured to provide for such cash are covered in transit from the premises to the bank.



(ii) Money other than described in (IA) in the personal custody of the insured or authorized employee/s while in direct transit between the premises and bank or post office or vice versa.



(iii) Money other than described in (IA) and (IB) above belonging to the insured which is collected by and in the personal custody of the insured or the authorized employee/s of the insured, whilst in transit to the premises or bank within a period not exceeding 48 house from the time of collection and vice versa.

9. It is, as such, apparent on bare look of Section-I (i) of the policy that money for payment of wages and salaries etc. in direct transit from bank to insured’s premises, was guaranteed. Under sub section (ii) of Section-1, money in personal custody of the insured or otherwise employee while in direct transit between premises (premises of the insured) and bank or post office, was insured. In the instant case, as per allegations money was being taken from factory premises to ICICI Bank Ltd. for deposit. So, it is sub section (ii) of Section-1, which in our view, shall stand attracted towards allegations of the case in hand.

10. So, insurance covers risk for carrying money from the premises to the bank directly. Thus, the question whether the money was being taken directly or not is a question of fact; deserves to be proved by way of detailed evidence, investigations, which may not be possible in summary case like this. As in the instant case, surveyor in his report Ex.R2, reported that first they went from the factory to a shop at Malhar Cinema Road to take T.V. Mr. Suresh went inside the shop to take T.V. After Sh. Suresh Kumar came with T.V., both of them sat in the car after putting the T.V. in the boot and went to their house 23-J, Sarabha Nagar, Ludhiana.

They found the cash bag missing. The aspect whether house of the complainant as well as T.V. Shop, fell directly between factory premises of the complainant and the bank, needs recording of evidence. Moreover, the matter deserves to be proved with the angle that when Mr. Sachin Lembi, out side the T.V Shop, after chasing the boy, entered the car along with Sh. Suresh Kumar, why they failed to notice the missing bag. These are matters which need proper investigation, in order to arrive at proper adjudication. In the absence of material, it shall not be fair for us, to base any conclusion on summary material brought on the record.

11. In these circumstances, we refrain ourselves to decide the matter and refer the same to be decided by competent court of civil jurisdiction.

Tarlok Singh son of Mohinder Singh r/o. Village Mudian Khurd, near Attai Chaki, P.O. Sahibana, District Ludhiana.

Versus
United India Insurance Company Limited, G.T.Road, Near Vishkarma Chowk, Ludhiana through its Branch Manager.
….Opposite party
O R D E R

Complainant alongwith his family members obtained a medi-claim insurance policy from the OP bearing No.201401/48/01/01306 for the first time valid from 28.12.2001 to 27.12.2002. That on 22.5.2002 the complainant suffered multiple accidental injuries and he was admitted in Hunjan Bone & joint hospital, South Model Gram, Ludhiana. The doctors inserted the iron rod in the left leg with the directions to the complainant and to get removed the same after fully healing.

The complainant submitted the bill to the OPs and his claim was passed and paid after through investigation. Thereafter the complainant got renewing the Medi-claim policies no.201401/48/03/00632 for a period from 30.12.2003 to 29.12.2004. Alongwith the policy another policy bearing no.201401/42/03/00490 dated 29.12.2003 for a period for 30.12.2003 to 29.12.2004 was also insured by him on payment of premium Rs.5597/- from the OPs. That the policy continued since 28.12.2001, that with one policy of individual personal accident cover was issued to the complainant. That during the period of said policy the complainant admitted in Hunjan bone & Joint Hospital, South Model Gram, Ludhiana on 22.5.2004 for the removal of iron rod from his left leg and he was discharged on 25.5.2004 and hospital charged Rs.16100/- besides this complainant spent Rs.10000/- on medicines.

That the complainant submitted all the relevant papers of claim to the OPs, but they delayed the matter with one pretext or the other. That there is deficiency in service on the part of OPs and he has suffered mental tension, pain, agony and suffering for non payment of claim to the complainant, therefore he is entitled to the amount of compensation of Rs.26000/- incurred by him on medical treatment alongwith interest @ 18% PA from 23.5.2004 and Rs.50000/- towards deficiency in service besides costs of litigation.

2. OP in his written statement took preliminary objections that the complaint is not maintainable as there is no deficiency in service and the complainant received accidental injuries on 22.5.2002 during the policy period and OPs had settled his claim of Rs.70571/- through cheque no.278493 dated 13.08.2004 as full and final settlement.

The complainant also got an individual medi-claim policy No.201401/48/01/020/00001306 effective from 28.12.2001 to 27.12.2002, the complainant has accepted the sum of Rs.85351/- through cheque no.8284403 dated 07.03.2003: that the complainant has filed claim for the second time for the old injuries alleged to be received on 22.5.2002 and has not received any fresh cause of action. That complainant cannot be vexed/repaginated again for the same. The complainant did not inform the OPs about the insertion of iron rod in his leg and about removal of the same after 2 years. That the claim cannot be payable under term 3.2 (the expenses incurred after 60 days from the date of discharge from the hospital will not be considered as part of the claim) because the treatment of injuries of which claim has been sought, and OPs have rightly repudiated the claim.

That the claim was referred to TPA namely Paramount Health Service New Delhi and they did not take cognizance of the matter in the light of the term no.3.2 of policy. That no fresh cause of action has been arisen to the complainant under the subsequent policy and has no right to get the claim. Thus, the bills of Rs.23209/- and Rs.26100/- to which the complainant is not entitled. On merits, the pleas taken into the preliminary objections were considered and all other allegations made in the complaint were denied.

3. Both the counsel for the parties adduced their evidences. We have perused the file and gone through the record. The counsel are stood heard.

4. Complainant was admitted in Hunjan bone & Joint Hospital, South Model Gram, Ludhiana on 22.5.2004 for the removal of iron rod from his left leg and was discharged on 25.5.2004 and hospital charged Rs.16100/- besides this complainant spent Rs.10000/- on medicines is genuine and legal and payable by Ops.

5. OPs argued that the claim is not payable under the terms of insurance policy because the treatment was not immediately operated after trauma. The claim is not payable under the exclusive clause of the policy term 3.2. That the expenses incurred from the date of discharge from the hospitalization after 60 days, will not be considered as a part of claim. Further averred that the complainant submitted the bill for insertion of iron rod from his left leg and he was discharged on 25.5.2002 from Hunjan bone & Joint Hospital, South Model Gram, Ludhiana and the amount was paid Rs.70571/- through cheque no.278493 dated 13.08.2004 as full and final settlement Ex.R3. The OP argued that nothing is due as the matter was already settled and finished.

6. The OP also argued that the claim was referred to the third party namely TPA namely Paramount Health Service at New Delhi which is licensed by Insurance Regulatory & Development Authority to carry out services for health relating production on behalf of the insurer established under the public grievance Act and Arbitration and Reconciliation Act, 1996 for settlement of the claim and the said authority did not take cognizance of the matter because the claim is not payable.

OP also argued that no fresh cause of action has been arised against the policy No. no.201401/48/03/00632 for a period from 30.12.2003 to 29.12.2004 and thereafter the claim is not payable because he received no injury to continue of this said policy and the complainant has no cause of action under the said policy. Therefore the OP argued that the complainant is not entitled for compensation on amount of Rs.26100/- which he spent during the period admitted in Hunjan Bone & joint hospital, South Model Gram, Ludhiana for the removal of iron rod from his left leg. The OP argued that the complainant’s accidental injury on 22.5.2002 and filed the claim and OPs settled the same and paid a sum of Rs.70571/- through cheque no.278493 dated 13.08.2004 as full and final settlement Ex.R3.

7. From the above facts and figures it is clear that the complainant had multiple accidental injuries on 22.5.2002 and suffered a lot and got himself admitted in Hunjan Bone & joint hospital, South Model Gram, Ludhiana on 22.5.2002 where doctors inserted the iron rod in the left leg with the directions to the complainant to get removed the iron rod and it will take sometime to heal the left leg injuries. Therefore as the iron rod which was inserted in the left leg of the complainant and it cannot be predicted that the healing may be done within the specified time. Therefore the complainant again as per the direction of the doctor went to the hospital to get removed the iron rod after the completion of healing and spent Rs.16100/- (Ex.C3) and Rs.10000/- on the medicines (Ex.C4 to Ex.C6).

8. Forum reaches at the conclusion that the complainant cannot act as per his own after all it is a matter of great concern for him. The complainant cannot ignore the advice of the doctor. Therefore the claim of the complainant which the OP has not considered is not in order and genuine.

9. It is quite clear that as per advice of the doctor the complainant got his treatment from Hunjan Bone & joint hospital, South Model Gram, Ludhiana from 22.5.2004 to 25.5.2004 and carried on the continuous process until he got removed the iron rod in the left leg on 22.05.2004 which was inserted by the doctor on 22.05.2002. The amount of Rs.26100/- which he spend on hospitalization and treatment is genuine and legal and to be payable to the complainant by the OPs.

It is also to mention here that as per doctor advice complainant acted and get inserted the iron rod in the left leg and after healing of the injury, the complainant got removed iron rod from his left leg from Hunjan Bone & joint hospital, South Model Gram, Ludhiana on 22.5.2004 is a continuous process. The complainant has acted as per advice of the doctor and the amount of Rs.16100/- paid for hospital charges and Rs.10000/- on medicines is legal and genuine to be payable by the Ops. Hence the complaint is admitted and Ops are also directed to pay Rs.2000/- for litigation expenses.

Y.Prahlad, S/o.Narsaiah,

Aged:41 years, Occ:Govt.Teacher,

R/o.H.No.3-14, Post&Mandal, Tandur (A),

Adilabad District. …Complainant


1. Dr.T.Ramesh Babu, B.D.S. (Osm).,

Regd.No.A-801, S/o.Not Known,

Aged:Major, Occ: Dentist,

C/o.Mahalaxmi Dental Clinic (Super Speciality Service)

Bus Stand Road, Mancherial,

Adilabad District.

2. United India Insurance Company Ltd.,

Mancherial, Dist.Adilabad. …Opp.Parties.

-:ORDER:-

1. The complainant approached the Opp.Party with dental pain on 20.04.2007 for treatment at his clinic Mahalaxmi Dental Clinic (Super Speciality Services), Mancherial, Adilabad. The Opp.Party prescribed some medicines. The pain and swelling persisted complainant had to visit the clinic of the Opp.Party on 3rd and again on 8th May, 2007, Opp.Party No.1 prescribed some tablets and advised him to take an X-Ray. But the problem could not come to an end. I was compelled to visit the clinic of the Opp.Party with this severe pain. On each visit the Opp.Party performed various treatments like, once filled the teeth with cement and subsequently removed some 3 teeth etc., but each time instead of lessening, the pain got aggravated further.

Treatment and complaints agony continued like this till 07.01.2008. Finally on the advice of well-wishers and friends, complainant had consulted at Aditya Super Speciality Hospital, Hyderbad. The Doctors at Aditya Hospital condemned the treatment undergone at the hands of the Opp.Party No.1. Complainant was informed that the forceful removal of teeth by the Opp.Party caused a crack in my lower jaw. Complainant incurred an amount of Rs.2,00,000/- for treatment and complainant was put to severe mental agony and pain. Complainant is still undergoing treatment and incurring heavy expenditure towards medicines.

The Opp.Party was negligent in diagnosing the cause of my problem. That on 23.05.2008, complainant issued a legal notice calling upon the Opp.Party to pay Rs.4,00,000/- as compensation towards the expenditure incurred by him towards medical treatment for his wrong treatment, towards the pain and suffering and towards the permanent damage caused by the Opp.Party. The Opp.Party sent a reply notice with false and baseless allegations and concocted facts.

The complainant prayed this Forum to direct the Opp.Party to pay Rs.2,00,000/- towards the treatment charges and an amount of Rs.1,00,000/- towards the pain and suffering and Rs.1,00,000/- towards the damages totaling an amount of Rs.4,00,000/- (Rupees four lakhs only) as compensation and pass such other order or orders as this Hon’ble court may deem fit and proper in the circumstances of the case and in the interest of justice.



2. The Opp.Parties No.1&2 filed counters. The contents of counter of Opp.Party No.1 are as follows:

It is also a fact that on 20.04.2007 the complainant approached the Opp.Party at his clinic. On observation, the Opp.Party Doctor found swelling and tenderness to the Molar region of the patient and prescribed required medicines. Again the complainant visited the clinic on 03.05.2007 and he is advised to go for X-Ray. On observation of X-Ray, the Opp.Party found that there was tenderness and swelling to the 2nd molar tooth. On request of the complainant, required medicines were prescribed and even thereafter also, the complainant visited on 31.05.2007 by reporting the same problem. As there was no other alternative, the Opp.Party Doctor to go for extraction of 2nd molar tooth was extracted on 04.06.2008. The complainant was advised to take medicines for a period of week days. But within two days, the complainant visited the Opp.Party Doctor and reported pain forming to the first molar tooth.

On observation, it is found that the tenderness and swelling was extended to 1st molar tooth also. Since there was no chance to get cured the same with medicines, the complainant is advised to go for removal of first molar. Accordingly, the first molar was also extracted and while such extraction, Pre and Post X-Rays were taken, which reveals that operation conducted successfully without any jaw fracture as alleged by the complainant. Thereafter, the complainant disappeared from the clinic and did not turn-up for a long time. On 01.01.2008 the complainant approached the Opp.Party Doctor and revealed that he continued the treatment in a private hospital at Hyderabad and requested to take up the dress up the molar area. As the complainant was a regular patient, the Opp.Party Doctor dress up was done without any charge.

Even thereafter also, the same services were done by the Opp.Party on 09.01.2008. Thereafter the complainant did not turn up and there was no further information from his side. The Opp.Party are covered under the Policy 051901/46/34/00000068 issued by United India Insurance Co.Ltd., Branch Mancherial. There is absolutely no deficiency of service and the said policy was in force as on the date of service rendered by Opp.Party to the complainant. As such the said insurance company is necessary party in this proceedings and no liability can be fastened against the Opp.Party personally. The Opp.Party No.1 prayed to dismiss the complaint.



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

The contents of the complaint are absolutely false, baseless and created the petition has been filed in collusion with the Doctor for unlawful gain as such liable to be dismissed in limini. The Opp.Part No.2 has under taken to indemnify only for the professional negligence of Opp.Party No.1, but not in respect to the treatment of other doctors. That, the complainant has to establish the negligence of the Opp.Party No.1 with the help of the experts doctors and to what extent the Opp.Party No.1 was negligent in profession duties. The Opp.Party No.2 prayed to dismiss the complaint.

3. Both parties filed Proof Affidavits.

4. On behalf of complainant Ex.A1 to A33 are marked. No documents are marked on behalf of Opp.Parties.

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

6. Heard both sides. According to Ld. Advocate for complainant approached the Opp.Party No.1 for dental pain on 20.04.2007. The Opp.Party No.1 prescribed medicines. Thereafter also again complainant visited Opp.Party No.1 clinic on 3rd and 8th May 2007. But each time instead of lessening pain the pain aggravated and the pain continued till 07.01.2008. So thereafter he approached Aditya Super Speciality Hospital Hyderabad and got proper treatment. Complainant alleged that the Doctors at Aditya Hospital condemned the treatment provide by Opp.Party No.1. Under the above circumstances the following point will arise for decision. Whether the Doctors at Aditya Hospital Hyderabad condemned the treatment given by Opp.Party No.1?

7. Now it is to be seen whether Opp.Party No.1 exhibited professional negligence (deficiency of service) in providing treatment to complainant? The Ld. Advocate for the Opp.Party No.2 read the contents of Ex.A14 filed by complainant himself. In the column case summary, it is stated patient complained pain and swelling over right mandible 15 days back.

The date of admission is 31.01.2008. As seen from Ex.A7 the complainant took treatment in Aditya Hospital Hyderabad for 23 days and pain completely cured. In Ex.A14 it is stated condition of discharge is satisfactory. In Ex.A14, the column patient course in the hospital, it was mentioned “Patient was admitted with complaints of pain and swelling over the right mandible. Surgical projile was done. General Physician opinion was taken. X-ray and CT-scan were done. Fracture mandible confirmed. Review after 2 days for further steps”.



8. From the above it is clear the Doctors of Aditya Hospital did not comment anything against previous treatment by Opp.Party No.1. The allegation in the complaint that Doctors at Aditya Hospital Hyderabad condemned the treatment by Opp.Party No.1 is not established. So from the above it is clear the Doctors at Aditya Hospital Hyderabad did not say that the treatment provided by Opp.Party No.1 is defective or any such thing. The complainant did not produce any adverse opinion from the complainant Medical board, on the treatment provided by Opp.Party No.1. Thus the material record relied on by complainant did not disclose any adverse comment on the treatment provided by Opp.Party No.1. So we are of the opinion the allegation in the complaint, are not established and we see no grounds to allow the petition.

1. Bollam Ramakishan, S/o.Rajanna,

Age:64 years, Occ:Business,

R/o.Mancherial, H.No.9-57/1,

Gosevamandal Road.



2. Bollam Satyavathi @ Satya Laxmi,

W/o.Bollam Ramkishan, Age:56 years,

Occ:Household, R/o.Mancherial,

H.No.9-57/1, Gosevamandal Road.

V/s

The United India Insurance Company Ltd.,

Branch Office at Mancherial,

H.No.6-73/1, Balaji Complex,

Ganga Reddy Road. …Opp.Party.
-:ORDER:-

1. The 1st complainant is the husband of the 2nd complainant and they are residents of Mancherial. The complainants obtained Individual Mediclaim Policy No.051901/48/05/00294 from the Opp.Party. The period of the policy is 21.09.2005 to 20.09.2006. The 2nd complainant was hospitalized from 14.03.2006 to 28.03.2006 at Soumya Multi Specialty Hospital and she was given treatment of SIGMOID VAGINAL FISTULA. The complainants expended an amount of Rs.99,383-00 for the said treatment and paid the said amount in the hospital. The 2nd complainant forwarded claim petition to the Opp.Party along with original bills. The Opp.Party processed the same with Med save Health Care, Hyderabad who issued letter dt.22.05.2006 stating that the disease for which the treatment was received by the 2nd complainant was pre existing at the time of taking the policy.

Thus, the claim petition was not accepted by the Opp.Party with false and untenable reason. In fact, the 2nd complainant never suffered such disease and for the first time she suffered and treated in the hospital. The complainant got issued the legal notice on 03.07.2006 to the Opp.Party demanding it to pay the Medical expenses of Rs.99,383-00 and the compensation of Rs.10,000/-. Upon receipt of said notice, the Opp.Party Head office issued reply with a different reason as under.

“In discharge summary of Dr.S.Chandra Shekhar Rao, who was consultant Doctor to your client clearly endorsed the patient underwent Laproscopic Apendisectomy 7 months back which was observed on 14.03.2006 i.e., on the date of admission of your client in the above said hospital where as your client has taken the above referred policy on 21.09.2005.

It is clearly established that your client was admitted in the hospital within 6 months from the date of issuance of the policy. As per the doctors diagnose your client was suffering from 7 months back. It means one month prior to the taking of insurance policy…. As per clause 4(1) of the terms and conditions of the Medi claim policy the Insurance company is not liable for the PRE EXISTING DISEASE”.

The 2nd complainant had already submitted original discharge summary and original bills to the Opp.Party with claim petition.

Hence the complainant prayed this Forum to allow the complaint and direct the Opp.Party as below:

a). To pay an amount of Rs.99,383/- with interest @ 24% p.a. from the date of refusal till the realization.

b). To pay Rs.10,000/- towards compensation on account of causing agony and pain both mentally, physically and monetarily and also on account of rendering deficient services.

c). To pay costs of the complaint.

d). To award any other relief or reliefs which the Honourable forum deems fit and proper in the circumstances of the case.

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

After receipt of the claim application from the complainant the Opp.Party herein requested Med Save Health Care Hyderabad who is third party to investigate the claim and settle the claim to conduct through investigation in the case. Later on 12th July 2006 the Opp.Party herein have received a report from the above said authority stating that the complainant No.2 had suppressed pre existing disease and she had undergone surgery i.e., Laproscopic Apendisectomy prior to 7 months of 14.03.2006 in fact the policy was obtained on 21.09.2005 by suppressing pre existing disease which is against to the conditions of the policy. The complainant by playing fraud wanted to have the advantage of Medi Claim Policy. As per the clause 4(1) of terms and conditions of Medi Claim Policy the patient should reveal all the pre existing disease but the complainants herein wantedly suppressed the fact of previous surgery to gain benefit from the policy.

The doctors of Soumya Multi Specialty Hospital in their finding and Chief complaints column of discharge summary clearly mentioned that the “patient under went Laproscopic Apendisectomy 7 months back” since the policy was obtained on 21.09.2005 and the complaint No.2 had joined in Hospital on 14.03.2006 i.e., prior to one month of taking of policy the complainant no.2 had under gone Laproscopic Apendisectomy from the Opp.Party. There is no deficiency of service on the part of the respondent hence the complainant cannot claim any compensation. The Opp.Party prayed to dismiss the complaint.

3. Both parties filed Proof Affidavits.

4. On behalf of complainant Ex.A1 to A9 are marked. Ex.B1 & B2 are marked on behalf of Opp.Parties.

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

6. Heard both sides. Now the point for decision is whether repudiation of claim by the Opp.Party amounts to deficiency of service? The fact that the Medi claim policy was in force on the date of claim petition is beyond dispute. The ground advanced by the Opp.Party that the complainant did not reveal the pre existing disease and she wantonly suppressed the fact that previous surgery (“Patient underwent Laproscopic Apendisectomy”).


7. The Ld. Advocate for the complainant submitted the Laproscopic Apendisectomy relates to abdomen and that said Apendisectomy, is not pre existing disease. He further submitted that Sigmoid Vaginal Fistula is no way related to Laproscopic Apendisectomy and the said disease will develop at any time and it was not present at the time of receiving policy.



8. In this contest, we feel it reasonable to extract the material portion of the Cross Examination of RW1. “It is true before issuing Medi claim policy our office will satisfy itself by subjecting the proposed insured to medical examination. It is true Dr.S.Chandra Shekhar who was examined on commission has clearly deposed that the surgery and treatment given to the patient was not pre existing disease to the patient”.

The Ld. Advocate for the Opp.Party did not dispute the fact that the amount claimed under Ex.A3 (bills amount claim towards expenses) is no way connected to Apendisectomy. So it can be safely said that the amount claimed towards expenses cannot be refused. So the ground advanced by the Opp.Party for the repudiation claim is not tenable and it amounts to deficiency of service. No doubt the complainant no.2 is bound to disclose the previous surgery if any, but it by itself is not sufficient ground to disallow the petition. So we feel under circumstances directing the Opp.Party to pay the amount under Ex.A3 Rs.99,383/- (rounded up to Rs.1,00,000/-) and interest will meet the ends of justice.



9. In the result the complaint is partly allowed. The Opp.Party is directed to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) to the complainant within one month from the date of receipt of this order, failing which the amount will carry interest @ 9% p.a. from the date of this order, and the complainant shall be at liberty to proceed against Opp.Party U/S.25/27 of Consumer Protection Act 1986. No costs.

Battini Viswanadham, s/o.Narsaiah, age: 56 years, occu:Agriculturist,

r/o.Allipuram village, Khammam urban mandal, Khammam District.
…Complainant

1. The Divisional Manager, United India Insurance Company Ltd., Divisional

Office-4, First floor, Possenette Bhavan, Tilak Road, Hyderabad-500 001.

2. The Branch Manager, United India Insurance Company Ltd., Branch Office,

Madhucon office, Trunk road, Khammam District.

…Opposite parties.

O R D E R

1. This complaint is filed u/s.12 of Consumer Protection Act, 1986. The averments made in the complaint are that the complainant is a member of AB-Arogyadaan group medi claim insurance policy, vide policy No.050400/48/05/00551 valid from 6-2-2006 to 5-2-2007 floated by the opposite party company and the same is renewed for a further period of one year. The wife, son and his daughter are added as members in the said policy. The opposite party is having a branch office at Khammam. In the month of October, 2006, the complainant received an injury on below the right abdomen due to fall on the stones, the testicles of the complainant also received injuries and the complainant approached the doctor at Khammam, who advised him to approach higher hospital at Hyderabad and as such the complainant approached Yashoda hospital, Malakpet, Hyderabad.

After due tests, doctors advised the complainant to undergo operation and estimated the cost at an amount of Rs.35,000/- for the said operation. Since the complainant is having policy with the company of the opposite party the same was informed to the doctors at Yashoda hospital, who asked the complainant to address a letter to the opposite party to grant leave, to admit him in Yashoda hospital, but the opposite party refused to grant such leave, due to which the complainant was compelled to return back to Khammam without getting operated and as per the adivse of the Andhra Bank officers, he renewed the policy.

When he felt again severe pain, approached the doctors of Yashoda hospital, the doctors informed that they will write to the opposite party and obtained Photostat copies of policy card, on the next day they informed to the complainant that the opposite party is not accepting to grant leave to the complainant for getting operated and to meet the medical expenses. Hence, this complaint.

2. On receipt of the notice, the opposite party No.1 got engaged Sri.G.Seetha Rama Rao, Advocate and filed counter. In the counter, the opposite party admitted the policy by the complainant and addition of the names of family members, except this, the other averments of the complainant are denied. The opposite party further contended that a person who holds a policy shall undergo and meet the expenses and thereafter he has to claim the said amount from the insurance company, but in the instant case, the complainant is claiming an amount in advance for undergoing operations. Therefore, he is not entitled to claim amount and prayed to dismiss the complaint with costs.

3. On behalf of the complainant, none of the witnesses are examined, but Exs.A.1 to A.4 are marked. Ex.A.1 is Xerox copy of policy, Ex.A.2 is Office copy of legal notice, Ex.A.3 is acknowledgment, Ex.A.4 is Estimation certificate. On behalf of the opposite party No.1, no witness is examined and no documents are marked.

4. Since the complainant and his counsel did not bestow interest in prosecuting the complaint, hence the matter is treated as heard. Now the points that arose for consideration are,

1. Whether the complainant is entitled to claim an advance to meet the medical
expenditure?
2. To what relief?

Points No.1 and 2:

5. The case of the complainant is that he has taken the policy with opposite party as a member of AB-Arogyadaan Group Medi Claim Insurance Policy, vide policy No.050400/48/05/00551 valid from 6-2-2006 to 5-2-2007 and thereafter it was renewed for a further period of one year. In the month of October, 2006, the complainant received an injury on the below of right abdomen due to fall on the stones, the testicles of the complainant also received injuries and when the complainant approached the doctor at Khammam, they advised him to approach a higher hospital at Hyderabad and as such the complainant approached Yashoda hospital, Malakpet, Hyderabad, the doctors advised him to undergo operation and estimated the cost at Rs.35,000/- for the said operation.

The complainant informed the same to the opposite party and also addressed a letter to grant leave, to admit in Yashoda hospital, but the opposite party refused to grant leave. The complainant also got issued a legal notice on 22-6-2007. On this aspect of the case, the complainant refers to Ex.A.1, Policy, Ex.A.2, office copy of legal notice, Ex.A.3, acknowledgment card and Ex.A.4, estimation certificate issued by Yashoda Hospital. The only contention of the complainant is that the opposite party has not granted leave to admit in Yashoda Hospital for treatment.

In the instant case, the complainant has addressed a letter to the opposite party to grant leave, to admit in Yashoda hospital, Hyderabad, but there is no need to seek permission for treatment in the hospital. The policy holder will be indemnified towards hospitalization expenses incurred by him due to illness or accidental injury subject to the terms and conditions of the policy. Instead of undergoing operation and meet medical expenses, the complainant is seeking leave from the opposite party to get him admitted into the hospital. The contention of complainant is unwarranted. There is no need for him to seek permission of the opposite party to get him admitted into the hospital and moreover no such condition is incorporated in terms and conditions of the policy. The complainant is fully entitled for the reimbursement of the medical expenses incurred by him during the course of operation.

6. In the counter, the opposite party has rightly taken a plea that the policy holder shall undergo and meet the expenses and thereafter he has to claim said amount from the insurance company. No condition is stipulated in the policy for realization of the amount in advance to meet the medical expenses. First he shall incur medical expenses and thereafter submit the bills, prescriptions and other medical proof and then he becomes entitled to claim for the medical reimbursement.

7. In view of the above discussion, we are of the opinion that the complainant is not required to seek any permission from the opposite party, for seeking admission into the hospital. He is further advised to undergo operation and meet the medical expenses and then submit the claim for the reimbursement of the medical expenditure.