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

Shri Yogeshwar Dutt S/o Shri Goria Ram,

R/O Paplota, PO Domehar, Tehsil Arki,

Distt. Solan (H.P.)



… Complainant

Versus



United India Insurance Company Ltd.

The Mall, Solan through its Branch Manager. …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 Section 12 of the Consumer Protection Act, 1986. The complainant, avers that he being owner of the Brick kiln named and styled as B.K.G. Bricks Gram Udyog at village Paplota, P.O. Domehar, Tehsil Arki, District Solan, H.P., purchased one insurance policy bearing No.819767, on, 06.12.2005 from the OP-Company, which was valid upto 05.12.2006. He further alleged that on, 21.10.2006, the brick stock got fire and explosion, hence, the entire stock was destroyed in the said fire and explosion.


The complainant, further, proceeded to aver, that, the aforesaid fire incident, was brought to the notice of the OP-Company, as such, got the loss assessed. Thereafter, the complainant supplied the requisite documents to the OP-Company for settlement of the insurance claim, but the OP-Company, instead of settling his claim, repudiated the same, on, 01.04.2006, illegally and wrongly. 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 written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, inasmuch, as, that there is no cause of action, locus standi to file the present complaint, and non-joinder of necessary party. On merits, it is denied that the complainant purchased the insurance policy, rather, the same was issued in the name of HPSCDC Solan. It is also denied that the brick kiln was insured by the complainant.


They contend that a standard Fire and Special Perils Insurance policy bearing No.111301/11/05/11/00000645, w.e.f. 06.12.2005 to 05.12.2006, was purchased by HPSCD Corporation, Solan A/c Yogeshwar Dutt, from the OP-Company covering the risk of Plant and Machinery for Rs.2.00 lacs and stock of finished and unfinished goods for Rs.2.00 lacs. It is further contended that on the night of 21.01.2006, an explosion took place in the said kiln due to gas formation from the burning coal inside the kiln causing partial damage to the kiln, hence, only 25000 bricks were found to be broken and damaged on account of the aforesaid explosion, hence, it is denied that the total loss was caused to the brick kiln. They further contend that the brick kiln, was not covered by the insurance policy. 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. Undisputedly, the policy, as purchased by the complainant from the OP-Company, took within, its, ambit destruction or damage caused to the Brick Kiln, of the complainant. An explosion, took place, on, 21.01.2006 in the property of the complainant as insured with the OP-Company. The OP-Company succinctly has repudiated the claim of the complainant, on, the score of the purported cause of the explosion as had occurred in the Brick Kiln factory of the complainant, falling within the scope of the exclusionary clause, of, Annexure R-1, annexed with the file of the case, inasmuch, as, in the eventuality of the destruction having come to be caused to the insured property by, its, own fermentation, natural heating or spontaneous combustion, then, the liability of the OP-Company, to, indemnify the complainant the damage caused to the property insured, is, exculpated.

6. The OP-Company, to, sustain, its, contention, has relied upon Annexure R-2, which, is, the report of the Surveyor & Loss Assessor, in, which, he, has detailed the cause of explosion and which cause of fire/explosion in the Brick Kiln of the complainant, which, is, the property insured with the OP-Company, has been anvilled on, the strength of the statement of the complainant, in which he has attributed the said explosion, to gas formation, as had occurred in the ignited coal set, a, fire, to, bake the raw bricks. The cause of fire attributed in the report of the Loss Assessor, anvilled, on, the statement of the complainant, which statement exists, on, record, as, Annexure R-5, being neither controverted or repulsed and, its, perusal foisting truthfulness to the cause of explosion, in, the Brick Kiln as attributed in the report of the Loss Assessor, hence, assumes conclusiveness.

7. With the conclusion as formed above and with the existence on record of the photographs of the Brick Kiln, whose perusal divulges the fact that the complainant had taken to bake bricks in the Brick Kiln plant not designed in a scientific manner, rather, it being, a, plant fabricated by local methods, obviously, the act of the complainant in setting a fire, the coal heaped along with raw bricks, which ignited coal, admittedly, as, revealed in Annexure R-5 resulted, in, gas formation and explosion of the lot of bricks heaped in the Brick Kiln.


With the complainant admittedly having resorted not to bake bricks in a Brick Kiln Plant, fabricated in a scientific manner in accordance with an approved project, rather, his having taken to adopt local as well, as, unscientific methods, to bake bricks, which, local method, as, borne out by the admission of the complainant proved disastrous or in other words, when the, local methods, admittedly resulted, in, the explosion in the Brick Kiln, causing by gas formation, arising from the ignited coal used for baking of the bricks, hence, inevitably, given the square and unimpeachable admission, of, the complainant, we are led, hence, to the sequel, that, the OP-Company has been able to clinchingly prove, that, the cause of explosion admittedly as was caused by gas formation arising from the burning of coal used for baking bricks in a unscientifically fabricated Brick Kiln Plant, emphatically falls within the scope, of, the exclusionary clause, as referred, to, above.

8. With the OP-Company, having proved the cause of explosion in the Brick Kiln of the complainant having been caused by the facts falling within the exclusionary clause, accordingly, the repudiation of the claim of the complainant by it, was tenable, hence, no deficiency in service can be attributed on the part of the OP-Company.

9. Resultantly, the complaint deserves dismissal as such we dismiss the same. No order as to the costs. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

1 Smt Lata Saini W/o Late Shri Jagat ram Saini, Resident of North Oak, Old Building, sanjauli , Shimla-6

2 Ms. Shelly saini Daughter of late Sh.Jagat Ram Saini

3 Ms. Silpa

4 Baby Shweta, daughters of late Shri Jagat Ram Saini.

5 Master Rohit S/o Late Sh. Jagat Ram saini Sr. No. 4& 5 being minor represented by their mother and natural guardian Smt. Late saini W/o Late Jagat Ram Saini. All resident of Northoak Building Sanjauli, Shimla-6.



… Complainant.

Versus



1 The Secretary Education, Govt. of H.P. Shimla-171002.



2 The Director of, Elementary Education, Himachal Pradesh, Near Main Bus Stand , Shimla-1.



3 The Head Master, govt. Middle SchooI, Mool Koti (Mashobra), The. 7 Distt. Shimla ( H.P.)



4 The Divisional Manager, United India Insurance Company Ltd. Timber House,Cart Road, Shimla. …Opposite Parties.





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. It is averred that late Shri Jagat Ram Saini, husband of the complainant No.1 and father of complainants No.2 to 5, was serving as Drawing Teacher with the OP No.3, whereas the OPs no.1 & 2 were the employer of the deceased and OP N.4 is the insurance company, with whom the deceased was insured under Personal Accident Scheme, for an amount of Rs.2.00 lacs vide notification dated 24.02.2006. It is alleged that the deceased died in harness on, 10.07.2006 when he was in active service and after his death, the OPs were requested the release the insurance premium in their favour, which they failed to do so. Hence, feeling aggrieved and dissatisfied, it is averred that, there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OPs No.1 to 3, in their written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, lack of cause of action, limitation, jurisdiction etc. On merits, it is admitted that Shri Jagat Ram was serving as drawing teacher with the OPs, who died in car accident. They further contend that the deceased was assured for Rs.2.00 lacs on payment of premium of Rs.91/- under group personal accident insurance scheme, hence, group personal accident insurance renewal amount of Rs.70/- could not be deducted from the deceased salary. The OP No.4, in its separate written version, to the complaint, contended that the deceased died after the period of the policy was over and was not covered under the policy, hence the policy has expired on 31.12.2005, while the deceased died on, 10.07.2006. 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 deceased, who was working as drawing master, with the OP, while in service, met with an accident, on, 10.07.2006. An FIR with regard to the incident came to be registered in the Police Station, Dhalli and is appended as Annexure-B. After the death of the deceased, the complainant being the legal heir of the deceased, lodged a claim before the OPs, for, indemnifying to them the amount of insurance under Group Personal Accident Insurance Scheme.

6. The OP No.4-Company has come to repudiate the claim of the complainant on the ground that since no premium from the salary of the deceased covering his risk, was deducted, as a result of which the policy was not in existence, hence, did not cover the risk of the deceased, as such, the complainants are not entitled to claim the amount of the insurance.

7. Be that as it may, the scheme known as Group Personal Accident Insurance was introduced by the Government of H.P., hence, applicable w.e.f. 01.01.2005 to 31.12.2005, which was renewed on, 01.03.2006, and made effective from 05.04.2006, vide letter No. Fin(F)9-2/2006 dated 12.07.2006, which was circulated to the OPs No.1 to 3 only in the month of August, 2006, and since, the deceased had already expired on 10.07.2006, as such the premium could not be deducted from his salary by the OP No.3, hence, his risk remained not covered.


Hence, in the absence of non-existence of Group Personal Accident Insurance Scheme, in favour of the deceased, the OP No.4-Company was well within its right to repudiate the claim of the complainant. Thus, considering the facts and circumstances of the case, as no insurance policy was in existence, at the time of the death of the deceased, and since, the OP No.3 has assigned good reasons for non-deduction of the premium from his salary, hence, no negligence can be attributed to the OP No.3 for lack of non-deduction of premium from his salary, hence, OP No.4-Company cannot be held liable to indemnify the complainant. Hence, the repudiation of the claim of the complainant cannot be said to be suffering from any infirmity, as such, is legal and valid.

8. In the light of the above, we find no force in this complaint, and the same being without any merit, is liable to be dismissed, hence, we order accordingly. No order as to the costs. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

1. Shri Naginder Singh

2. Sudarshan Singh

3. Inder Singh

4. Ravinder Singh

5. Deepak Chauhan all sons of Sh. Het Ram, R/o Vill. Kotla Mahal, Tehsil rajgarh, Distt. Sirmaur, H.P.





… Complainants.

Versus





United India Insurance Co. Ltd.

Through its Branch Manager,Solan,

Distt. Solan. H.P. … Opposite party.








O R D E R:



This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainants aver that they are registered owner of a tractor bearing registration No.HP-16-0243, which was insured, by them, with the OP-Company, for a period of one year commencing from 20.01.2003 to 19.01.2004. They further aver that the aforesaid vehicle, unfortunately, met with an accident, on, 01.05.2003, during the currency of the insurance policy and suffered extensive damage. It is further averred that, the factum of the vehicle, having met, with an accident, was reported to the OP-Company, as also, to the Police. Thereafter, they lodged a insurance claim with the OP-Company, who instead of settling it, dilly-dallied the same on one ground or 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.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, and breach of terms and conditions of the insurance policy. On merits, it is contended that at the time of accident, two unauthorized passengers were traveling in the tractor. They have also contended that since the claim was repudiated vide letter dated 30.11.2004, hence, the complaint, being time barred, is not maintainable. 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. During the course of the arguments, the learned counsel for the OP-Company, has vigorously urged before us that the present complaint, filed by the complainants, before this forum is not maintainable, inasmuch, as it has been filed, on, 06.09.2007, whereas, the claim was repudiated as reflected in letter dated 30.11.2004, duly addressed to the complainant, hence, the complaint being time barred, is liable to be dismissed on this score alone.

6. As per the mandate of the Consumer Protection Act, 1986, as detailed in Section 24A, The District Forum, the State Commission or the National Commission, shall not admit a complaint, unless, it is filed within two years from the date on which the cause of action has arisen. In the present case, undisputedly, the accident took place on, 01.05.2003, and thereafter, the OP-Company vide Annexure OP-3, repudiated the claim of the complainant, on, 30.11.2004, whereas, the complaint came to be lodged before this Forum, on, 06.09.2007, i.e. after three years from the date of repudiation of the claim of the complainants by the OP-Company or the accrual of clause of action. The complainants have neither filed any application seeking condonation of delay nor have given any reasons in the complaint, for filing the complaint so belatedly.

7. Hence, without going into the merits of the case, the only conclusion, which is sprouting from the aforesaid conclusion, is, that the complaint filed by the complainants before this Forum, on, 06.09.2007, cannot be entertained by this forum, it, being hopelessly time barred. As such, it is to be held, that, their, is, belated delay on the parts of the complainants in approaching this Forum, for redressal of their grievances, which cannot be gone into by this forum, for lack of jurisdiction by this Forum. Hence, the complaint is dismissed, being hopelessly time barred. No order as to the cost.

9. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

M/s. Sood Chemical Industries (P) Ltd., New Abadi, Hoshiarpur, through Sh. Sheel Sood, Director.


.......... Complainant

versus


1.

United India Insurance Co.Ltd., Jalandhar Road, Hoshiarpur, through its Branch Manager.
2.

United India Insurance Co.Ltd., Regd. Office: 24, Whites Road, Chennai.
3.

Jasjit Vij, Surveyor, M/s. Vij Engineers Enterprise, Surveyor & Loss Assessor, BMC Chowk, Jalandhar City.

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





1.

The complainant namely M/s. Sood Chemical Industries (P) Ltd., has filed the present complaint thought its Director, Sh. Sheel Sood, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the complainant-company is having its godown situated at Bharwain Road in the revenue estate of village Sukhiawad. The complainant company on 13.8.2008 was having in its stock huge quantity of chemicals and other material alongwith barrels. The detail has been given vide para No. 3 of the complaint.
2.

It is further the case of the complainant that the goods lying in the godown were duly insured with opposite parties No. 1 and 2. It is further the case of the complainant that the company purchased standard fire and special perils policy from opposite parties No. 1 and 2 on 30.4.2008 valid upto 29.4.2009. The complainant paid Rs. 5393.00 as premium on 1.5.2008 to opposite parties No. 1 and 2.
3.

It is further the case of the complainant that on 13.8.2008, there were unprecedented rains in the area and because of that the water entered in the premises/godown of the complainant and caused heavy loss. The detail of the loss had been given vide para No. 5 of the complaint. That the complainant suffered loss to the tune of Rs. 2,36,342.40 on account of flushing away of the material and empty barrels due to unprecedented rains. The complainant reported the matter to PS Sadar and DDR No. 22 was recorded and the complainant also lodged the claim with opposite parties No. 1 and 2, who in turn appointed the surveyor to assess the loss.
4.

It is the allegation of the complainant that it was to his surprise that the surveyor – OP No. 3 on 1.11.2008, wrote a letter that he met the representative of the complainant. The broken locks of main gate and drums were lying there in tilted position and there was no loss of any stock/material. That the representative of the complainant told that the locks of main gate got broken due to impact of water and chemical drums washed away, which is unbelievable. That the fire policy does not cover theft of stocks. It is further averred that the surveyor – OP No. 3 for certain reasons prepared the survey report to the detriment of the complainant. It is further averred that the surveyor did not contact the representative of the complainant-company nor he visited the site in order to assess the loss on the spot. The surveyor prepared the report while sitting in his office. The complainant made a request to the opposite parties No. 1 and 2 to admit the claim, but of no consequences, hence this complaint.
5.

The opposite parties No. 1 and 2 filed the joint reply. The preliminary objections vis-a-vis maintainability, jurisdiction, estoppel and non-joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is denied that the Godown of the complainant situated at Bharwain Road, Hoshiarpur is insured with the replying opposite parties. As per insurance policy, the property of the complainant situated at Nai Abadi, Hoshiarpur was insured. However, it is admitted that the complainant obtained the fire policy from the replying opposite parties, which was valid from 30.4.2008 to 29.4.2009. It is admitted that the intimation regarding the alleged loss dated 13.8.2008 was given to the replying opposite parties, and thereafter, OP No. 3 was deputed to assess the loss.
6.

It is further replied that OP No. 3 visited the spot and clicked the photographs of the building alleged to be a godown of the insured. The lock was lying broken. That no loss can be caused as alleged by the complainant and fraud is being played with the insurance company to get a false claim. It is admitted that the loss due to flood is covered by the insurance policy. The claim was rightly repudiated by the insurance company, as per survey report dated 18.9.2008. The repudiation of the claim vide letter dated 24.9.2008 is legal.
7.

The opposite party No. 3 was proceeded against ex-parte on 11.5.2009.
8.

In order to prove the case, the complainant tendered in evidence affidavit of Sheel Sood – Ex. C-1, copy of DDR – Mark C-1, copy of claim form – Mark C-2, copy of Policy – Mark C-3, copy of Cover Note – Mark C-4, copy of Resolution – Mark C-5, copy of letter of Insurance Company – Mark C-6, copy of letter by complainant – Mark C-7, copy of bills – Mark C-8, Mark C-9 and Mark C-10 and closed the evidence on behalf of the complainant.
9.

In rebuttal, the opposite parties No. 1 and 2 tendered in evidence Insurance Policy – Ex. OP-1, letter dated 24.9.2008 – Ex.OP-2, letter dated 18.9.2008 of M/s. Vij Engineers – Ex. OP-3, photographs – Ex. OP-4 and Ex. OP-5, affidavit of Sh. S.K. Aggarwal, Divisional Manager, United India Insurance Company Ltd., Hoshiarpur – Ex.OP-6, and affidavit of Sh. Jasjit Singh, Prop., M/s. Vij Engineers Enterprises – Ex. OP-7.
10.

That vide order dated 19.8.2009, the opposite parties No. 1 and 2 – insurance company were allowed to place on record the copy of the Survey Report dated 18.9.2008.
11.

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

The learned counsel for the opposite parties No. 1 and 2, Sh. Brij Thakur argued that the property of the complainant situated at Nai Abadi, Hoshiarpur was insured with the insurance company. It was further argued that as the Godown of the complainant situated at Bharwain Road, Hoshiarpur is not insured with the insurance company, therefore, the complaint deserves to be dismissed. The learned counsel for opposite parties No. 1 and 2 made a reference to the insurance policy – Ex. OP-1 and on its title page, it has been recorded that the property of the complainant situated at Nai Abadi, Hoshiarpur was insured, whereas the alleged loss pertains to the property, situated at Bharwain Road, which is not covered under the policy – Ex. OP-1.
13.

The learned counsel for opposite parties No. 1 and 2 further argued that the claim was repudiated by the insurance company as per the recommendation of the Surveyor qua Ex. OP-2 and Ex. OP-3. It was argued that Ex. OP-2 is a repudiation letter dated 24.9.2008. The claim has been repudiated by the insurance company on the following ground :

“As per Survey Report the loss is outside the scope of policy.”

13.

Ex. OP-3 is a letter written by M/s. Vij Engineer's Enterprise, Surveyors and Loss Assessors, Jalandhar City dated 18.9.2008, wherein it has been stated by the Surveyor that “chemical barrels washed away due to flood water after breaking lock of main gate which is beyond believable and unknown person took away chemical barrels. There was no loss to chemical barrels under the fire policy, so, claimed loss is outside the scope of policy.
14.

Now, the points which call determination from this Court are :

i) Whether the godown of the complainant was insured with opposite parties No. 1 and 2.

ii) Whether the loss suffered by the complainant is covered by the insurance policy.

iii) What is the loss caused to the complainant?

15.

The complainant has produced the Cover Note – Mark C-4 issued by opposite parties No. 1 and 2 on the record. The close scrutiny of the said Cover Note clearly depicts that the godown situated at Sukhiabad, Bharwain Road, Hoshiarpur belonging to M/s. Sood Chemical Industries Pvt. Ltd., Nai Abadi, Hoshiarpur was insured by the opposite parties No. 1 and 2 – insurance company. The relevant portion of the Cover Note under the Head “Property Insured & Terms” - Mark C-4 is reproduced as under :-

“On stock of Rosin & other like chemicals including other items pertaining to insured trade wholst stored/lying in A-Class godown at Sukhiabad, Bharwain Road, Hoshiarpur of M/s. Sood Chemical Industries Pvt. Ltd., Nai Abadi, Hoshiarpur.”


16.

The learned counsel for the opposite parties No. 1&2 submitted that the Cover Note is valid only for 30 days, and thereafter, the insurance policy is issued, therefore, the complainant cannot draw any advantage from the Cover Note issued by the insurance company, referred to above.
17.

This limb of the argument raised by the learned counsel for the insurance company did not hold any water, as the Cover Note – Mark C-4 had been issued by insurance company-opposite parties No. 1 and 2, and none else, and insurance company cannot take departure from its recitals. Since qua Mark C-4, it is specifically recorded/depicted that the godown situated at Sukhiabad, Bharwain Road, Hoshiarpur belonging to M/s. Sood Chemical Industries Pvt. Ltd., was insured, therefore, it is held that the godown of the complainant situated at Sukhiabad, Bharwain Road, Hoshiarpur, was insured with the opposite parties No. 1 and 2 – insurance company. It will not be out of place to state that the insurance policy is to be issued on the basis of the Cover Note issued by the insurance company and in this case, on the basis of the Cover Note – Mark C-4. Therefore, it can be held without any hesitation that the Cover Note – Mark C-4 is the basis to prepare the Insurance Policy – Ex. OP-1 and Mark C-3.
18.

The opposite parties have repudiated the claim of the complainant qua – Ex. OP-2 on the ground that as per survey report the loss is outside the scope of policy. Ex. OP-2 is repudiation letter and Ex. OP-3 is a letter dated 18.9.2008 written by M/s. Vij Engineer's Enterprises, Surveyors and Loss Assessors to the insurance company, wherein it has been stated that “chemical barrels washed away due to flood water after breaking the lock of main gate,which is beyond believable and unknown person took away chemical barrels. We do not find any loss to chemical barrels under fire policy. So, claimed loss is outside the scope of policy.”
19.

The learned counsel for the complainant argued that the surveyor is not an investigator. That the duty of the surveyor is to assess the loss to the property. The complainant has produced on record the copy of the DDR – Mark CA dated 13.8.2008 recorded with PS Sadar, Hoshiarpur, wherein it has been recorded that at Sukhiabad there is a godown of Sood Chemical Industry. The water has entered in the godown, causing loss to chemicals. The complainant has alleged in the complaint that on 13.8.2008, there were unprecedented rains in the area and because of that the water entered into the premises/godown and caused heavy loss. The said averment contained in the complaint is supported by the DDR – Mark CA. In view of this, the letter of Surveyor and Loss Assessor – Ex. OP-3, wherein it has been recorded that unknown person took away chemical barrels is not sufficient to conclude that the loss is caused by theft and not by flood water. That vide para No. 12 of the reply, the opposite parties No. 1 and 2 had specifically admitted that the loss due to flood is covered by the policy – Ex. OP-1.
20.

The D.D.R. - Mark CA has been recorded by the policy – government officials in the discharge of their official functions, consequently it is held that the loss has been caused due to flood/unprecedented rains. The letter written by the Surveyor – Ex. OP-3 is not sufficient to rebut the DDR dated 13.8.2008 – Mark CA. Moreso, the DDR has been recorded on the day,the occurrence took place.
21.

The complainant has produced on record the bills – Mark C-8 to Mark C-10 to prove the loss. Mark C-8 is an invoice dated 6.6.2008 of Rs. 95,001/- issued by New Tech Polymers (India), Mark C-9 is a bill dated 18.7.2008 of Rs. 56,160/- issued by Bassi Mroof Gram Udyog and Mark C-10 is an invoice of Cardinal Resins dated 8.8.2008 of Rs. 1,21,150/-. The documents – Mark C-8 to Mark C-10, referred to above, go unrebutted, as the opposite parties No. 1 and 2 – insurance company had not got assessed the loss. However, it has been clarified vide para No. 5 of the complaint that the complainant has actually suffered the loss to the tune of Rs. 2,36,342.40, therefore, in the circumstances, it is held that the complainant is entitled for compensation of Rs.2,36,342.40/-.
22.

The learned counsel for the opposite parties No. 1 and 2 - insurance company submitted that since the loss caused to the complainant is not proved, therefore, the matter should be referred to the Civil Court. The reliance was placed on 2008(3) CPR 292 (NC), United India Insurance Co. Ltd. Versus M/s. Sri Dwarika Dhees Industries. Since the complainant to prove the loss has produced on record the bills/invoices – Mark C-8 to Mark C-10 and the said bills/invoices go unrebutted, therefore, it does not lie in the mouth of the ld. Counsel for opposite parties No. 1 and 2 that the loss caused to the complainant has not been proved. Since the opposite parties No. 1 and 2 have failed to make the payment of Rs. 2,36,342.40, it amounts to deficiency in service on their part.
23.

As a result of the above discussion, the complaint of the complainant is accepted and the opposite parties No. 1 and 2 are directed to pay Rs. 2,36,342.40 with interest @ 9% per annum from the date of filing of complaint i.e. 27.3.2009 till realization. Litigation expenses are assessed at Rs. 2,000/- to be paid by the opposite parties No. 1 and 2 to the complainant within one month from the date of receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Ram Singh aged 45 years, s/o Naranjan Singh r/o Village & Post Office: Badala, Tehsil and Distt. Amritsar at present r/o village Dhoot Kalan, Block Bhunga, Tehsil and District Hoshiarpur.


.......... Complainant

versus


1. United India Insurance Co. Ltd., G.T. Road, Dasuya, Distt. Hoshiarpur, through its Branch Manager.
2.

ICICI Bank Ltd., Ist Floor, 36, The Mall, Amritsar, through its Branch Manager.

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




1. The complainant namely Ram Singh has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “herein after referred as the Act”. Stated briefly, the facts of the case are that the vehicle bearing registration No. PB02-AR-9946 was under HPA through OP No. 2. That OP No. 2 got insured the said vehicle from OP No. 1 – United India Insurance Co. Ltd.
2.

It is the allegation of the complainant that on 26.1.2007, the said vehicle was being driven by Sh. Jaswant Singh from Bhunga to Hoshiarpur.That when the said vehicle reached near village Abbowal, it met with an accident with tractor trolley. The driver, Jaswant Singh was holding a valid driving licence. The vehicle was badly damaged in the accident. The matter was reported to PS Hariana on 31.1.2007. The complainant also informed the opposite party about the accident. The opposite party deputed the surveyor.
3.

It is further the case of the complainant that he got repaired the said vehicle from Basra Sales Corporation and Manohar Auto Diesel and Electricals. M/s. M.L. Mehta & Company, the surveyor assessed the net loss to the tune of Rs. 58,216.73, whereas the complainant had spent the amount of Rs. 1,13,822/- on the repair of the vehicle. The detail of the amount spent upon the repair of the vehicle had been given vide para No. 4 of the complaint.
4.

It is the allegation of the complainant that the opposite party No. 1 had not allowed the payment of the actual loss. It is prayed that the OP No. 1 may be directed to pay Rs. 1,13,822/- alongwith interest and litigation costs.
5.

The OP No. 1 filed the reply. The preliminary objections vis-a-vis maintainability, pre-mature, suppression of material facts and cause of action were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that the vehicle No. PB-02-AR-9946 was insured with the replying OP. It is denied that the accident took place on 26.1.2007. That DDR No. 8 dated 31.1.2007 is a result of manipulation with the police of PS Hariana to get the false claim. It is denied that the replying OP allowed the complainant to get the vehicle repaired.
6.

It is further replied that the preliminary survey was conducted by Mr. Sham Sunder Sharma, who submitted his report dated 21.2.2007, and thereafter, a final survey report dated 20.9.2007 was obtained from M.L. Mehta and Co., Surveyor and Loss Assessors, who after considering the estimate bills of M/s. Basra Sales Corporation, Jalandhar and M/s. Bachan Brothers, Denting Works, Jalandhar, assessed the loss to the tune of Rs. 58,216.73. It is denied that the complainant has spent the amount of Rs. 1,13,822/- on the repair of the vehicle. It is denied that the complainant got the vehicle repaired from M/s. Basra Sales Corporation and Manohar Auto Diesel and Electricals. The bills as per detail given under Sr. No. (i) to (x) in para No. 4 of the complaint had not been submitted to the replying OP at the time of assessment of the loss to the vehicle. The other alleged bills mentioned under Sr. No. (i) to (x) in para No. 4 of the complaint regarding repair had been manipulated to get false claim.
7.

The OP No. 2 was proceeded against ex-parte on 18.3.2009.
8.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, copy of insurance policy – Mark-A, survey report dated 20.9.2007 – Ex. C-2, copy of RC – Mark-B, original cheque dated 15.1.2009 – Ex. C-3, another cheque dated 15.1.2009 – Ex. C-4, DDR dated 31.1.2007 – Ex. C-5, copy of DL dated 9.3.2006 – Mark-C, bill dated 1.10.2008- Mark-D, bills – Mark-E, Mark-F, bill dated 3.1.2009 – Mark-G, bills dated 3.9.2008 – Mark-H, Mark-J, bill dated 31.3.2009 – Mark-K, bills dated 17.4.2007 – Mark-L, Mark-M, Mark-N, bill dated 2.1.2009 – Mark-O, bill dated 20.3.2007 – Mark-P, bill dated 8.4.2007 – Mark-Q, bill dated 3.4.2007 – Mark-R, receipt of Parking charges – Mark-S, Fee for survey – Mark-T, Labour charges – Mark-U, affidavit of Sh. Harish Kumar – Ex. C-6 and closed the evidence.
9.

In rebuttal, the OP No. 1 tendered in evidence affidavit of Ashwani Verma – Ex. OP-2, additional affidavit of Ashwani Verma- Ex. OP-3, Motor Survey report dated 21.2.2007 – Mark OP-4 (3 sheets), estimate of Basra Sales Corporation – Mark OP-5 (4 sheets), estimate of Bachan Brothers – Mark OP-6 (2 sheets), photocopy of DDR – Mark OP-7, letter dated 29.1.2009 – Mark OP-8 and closed the evidence on behalf of OP NO. 1.
10.

The learned counsel for the complainant and OP No. 1 filed written arguments. We have gone through the written submissions and record of the file minutely.
11.

The other facts are admitted. The complainant has claimed that OP No. 1 may be directed to pay Rs. 1,13,822/- alongwith interest and litigation costs, whereas OP No. 1 – Insurance Company had raised the plea that the surveyor has assessed the net loss to the tune of Rs. 58,216.73. Therefore, the only point which calls determination from this Court is whether the complainant is entitled for the amount of Rs. 1,13,822/- or Rs. 58,216.73?
12.

The OP No. 1 filed the written arguments. That vide Para No. 4, at Page No. 4 of the written arguments, the OP No. 1 had stated that they are ready to pay the amount assessed by the Surveyor qua Survey Report – Ex. OP-1 dated 20.9.2007 subject to deduction of Rs. 2,500/-, the value of salvage.
13.

The complainant has produced on record the Invoices/Bills – Mark-D to Mark-H, Mark-J to Mark-R. Admittedly, the complainant has neither produced on record the receipts nor the affidavits of the persons to whom the payment was made to prove the actual payment, therefore, it loses its evidentiary value and on the contrary, the OP-1 has placed on record the report of the M/s. M.L. Mehta & Co., the surveyor & loss assessor – Ex. OP-1, qua which the nett. loss to the vehicle in dispute had been assessed to the tune of Rs.58,216.73. Since the complainant has failed to produce the receipts to prove the payment of Rs.1,13,822/-, therefore,the report of the Surveyor qua Ex. OP-1 is to be accepted as the Surveyor is an expert and also an independent person to assess the damage caused to the vehicle of the complainant , thus, we are of the opinion that the claim of the complainant can be allowed on the basis of the Survey Report – Ex. OP-1.
14.

As a result of the above discussion, the complaint is accepted and the opposite party No. 1 is directed to pay Rs.58,216.73 to the complainant with interest @ 9 % per annum from the date of filing the complaint i.e. 27.1.2009 till realization alongwith litigation expenses of Rs.1000/- within one month. Copy of the order be sent to the parties free of cost. File be consigned to the record.

Sushma Tiwari, 63 years, widow of Late Sh. Naresh Tiwari, resident of Gali No. 9, Krishan Nagar, Bal Krishan Road, Hoshiarpur, Tehsil and District Hoshiarpur.


...... Complainant

versus


1.

United India Insurance Co. Ltd., Jalandhar Road, Hosharpur, through its Divisional Manager.
2.

United India Insurance Co. Ltd., SCO 58-59, Ist Floor, Sector 34-A, Chandigarh, through its Branch Manager, Mr. Vineet Sian.
3.

Grievance Department (Insurance), SCO: 123-124, Sector 17-B, Chandigarh, through its Deputy Manager.

...... Opposite Parties





1.

The complainant namely Sushma Tiwari has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the brother-in-law of the complainant got insurance policy under “The Family Health Plan”for himself and his family members including the complainant by paying the premium on 14.9.2005, 11.9.2006, 12.9.2007 and 12.9.2008.
2.

It is the case of the complainant she is widow and has no source of income, as such she is dependent upon her brother-in-law, Mr. Yogesh Tiwari and his family. It is the case of the complainant that OP No. 1 at the time of first insurance included the name of the complainant, as his family member and it continued till 12.9.2008.
3.

It is the allegation of the complainant that on 12.9.2008, the opposite parties with an ulterior motive separated her name without giving any reason. That the health insurance plan of the complainant is running in its fourth year. The complainant is paying the premium to the opposite parties regularly.

4.

It is further the case of the complainant that she filed her first medical claim under policy No. 110500/48/07/12/00308 with the opposite parties, to which the opposite parties raised the objection, but after filing the reply by the brother-in-law of the complainant, the medical claim was released. That the complainant again got admitted in Hospital for her treatment. The complainant filed her medical claim of Rs. 8368/-, but the opposite parties only released the amount of Rs. 7800/- in the month of January, 2009.
5.

It is the grouse of the complainant that OP No. 1 sent a letter dated 16.1.2009, whereby her insurance policy was cancelled without any explanation or reason. It is further the allegation of the complainant that the insurance company accepted the insurance premium from 14.9.2008 to 13.9.2009. The complainant approached OP No. 1, with the request to disclose the reason of cancellation of the policy, but of no consequences. The complainant also sent registered letter dated 28.1.2009 to the opposite parties. The OP No. 1 sent a letter dated 27.1.2009, which was received by the complainant on 31.1.2009. The complainant made several requests to OP No. 1, but the insurance company had failed to give the reason for cancellation of the insurance policy. It is further averred that the opposite party No. 1 sent letter dated 17.2.2009 qua which the objection with regard to the mis-representation and age were raised. The complainant replied the said letter and submitted the photocopy of her passport, ration card and voter ID for clarification. However, the insurance company failed to continue the policy of the insurance. The complainant again approached OP No. 1, but there was no satisfactory reply, hence this complaint.
6.

The opposite parties filed the joint reply. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant has admitted her age as 67 years in her letter dated 28.1.2009. The complainant had given monthly income in the Proposal Form as Rs. 10,000/-. It is further replied that the complainant was one of the policy holders in the policy issued in the name of Yogesh Tiwari, valid upto 12.9.2008. The complainant was paid a claim of Rs. 27,042/- under the said policy.
7.

It is further replied that on 12.9.2008, the complainant got a fresh policy by concealing material facts and giving wrong information. The complainant did not disclose about the earlier policies and the claim received under the said policies. It is further replied that on receiving a claim from the complainant, under the present policy, the earlier policies came to the notice of the replying opposite parties. It transpired the complainant suffered heart attack in December, 2007 and she was also suffering from diabetes since December, 2007. The fact of suffering heart attack as well as diabetes was not disclosed in the Proposal Form. The complainant has only stated that she got cardiology treatment on 18.2.2008. Thus, after settling the claim of the complainant, the policy was cancelled on the ground of non-disclosure of material facts and misrepresentations vide letter dated 16.1.2009.
8.

It is further replied that on receipt of representation from the complainant against the cancellation of policy, a letter dated 17.2.2009 was sent qua which the reason for cancellation was disclosed and she was advised as under :

“If you want insurance from us, come with clean hands by giving correct age proof, previous medical history/disease, if any, to enable us to process your proposal for quoting correct rate and also short premium from the previous policies.”

9.

It is denied that the replying opposite parties separated the policies of the complainant with any ulterior motive, as alleged. It is further replied that the complainant got a fresh policy issued by filling a fresh proposal form in order to conceal her previous ailments and claim under the previous policies. The fresh policy has not been issued in continuation of the earlier joint policies. However, it is admitted that under the current policy, the claim of the amount of Rs. 27,042/- has been allowed to the complainant. The said claim was made on 13.10.2008 and was paid on 15.1.2009. It is admitted that the policy was cancelled vide letter dated 16.1.2009 because of misrepresentation/non-disclosure of material facts. The complainant never approached the opposite parties for issuance of fresh policy after giving correct particulars, as requested vide letter dated 17.2.2009.
10.

In order to prove the case, the complainant tendered in evidence her affidavit – Ex. C-1, copy of passport of complainant – Mark C-2 (3 sheets), copy of statement of account – Mark C-3 (2 sheets), policy of insurance/cover notes – Ex. C-5 to Ex. C-7, I-Card of Voter – Mark C-8, postal receipt – Ex. C-9, letter dated 28.1.2009 – Ex. C-10, letter dated 16.1.2009 – Ex. C-11, letter dated 27.1.2009 – Ex. C-12, receipts of post – Ex. C-13 and Ex. C-14, letters dated 7.2.2009 – Mark C-15, Mark C-16, letter dated 17.4.2008 – Ex. C-17, letter dated 17.2.2009 – Ex. C-18, policy of insurance – Ex. C-19, other policy – Ex. C-20, letter dated 16.4.2008 – Ex. C-21 and closed the evidence.
11.

In rebuttal, the opposite parties tendered in evidence affidavit of Sh. S.K. Aggarwal – Ex. OP-1, Proposal Form – Mark OP-2, letter dated 17.2.2009 – Mark OP-3, letter by the complainant – Mark OP-4, letter dated 27.1.2009 – Mark OP-5, letter dated 16.1.2009 – Mark OP-6, investigation report – Mark OP-7, Policy conditions – Mark OP-8 and closed the evidence on behalf of the opposite parties.
12.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
13.

The complainant has filed the present complaint with the prayer that the opposite parties may be directed to continue the policy for the year 2008-09. Besides this, there is a prayer for damages and litigation costs.
14.

The opposite parties have raised the plea of concealment of material facts and misrepresentation, as the complainant has admitted her age as 67 years in her letter dated 28.1.2009 – Ex. C-10. The complainant had given monthly income in the Proposal Form as Rs. 10,000/-, whereas, in Para No. 1 of the complaint, the complainant has alleged that she has no source of income. The complainant did not disclose about the earlier policies and the claim received under thereunder. The complainant has also not stated in the Proposal Form – Mark OP-2 with regard to the heart attack as well as diabetes in December, 2007.
15.

The opposite parties had admitted that the complainant was one of the policy holder in the policies issued in the name of Yogesh Tiwari. It is also admitted that the complainant was paid a claim of Rs. 27,042/- under the said policy.
16.

The learned counsel for the opposite parties argued that on 12.9.2008, the complainant got a fresh policy issued in her name by concealing the material facts regarding the previous policies and her health, and also with regard to heart attack and diabetes in December, 2007, as such the insurance policy was cancelled on account of non-disclosure of material facts and misrepresentations. It was argued that the letter dated 7.2.2009 – Mark C-15 was written to the complainant, wherein reasons for cancellation of the policy were given and she was advised that she may get fresh policy issued after disclosing all the facts.
17.

It was further argued that the complainant has denied vide column No. 10 of the Proposal Form – Ex. OP-2 regarding her insurance under any prior policy. Qua Mark OP-7, Dr. V.P. Sharma, has certified that the complainant suffered heart attach in December, 2007 and he was also suffering from diabetes in December, 2007. It was further argued that the complainant has admitted vide para No. 4 of the complaint that she had received the claim under the earlier policy, consequently, vide letter dated 16.1.2009 – Mark OP-6, the policy was cancelled with effect from 22.1.2009. It was submitted that the complainant wrote a letter dated 28.1.2009, wherein she has mentioned her age to be 67 years and made a request for the reasons for cancellation of the insurance policy, which was furnished vide letter dated 17.2.2009 – Mark OP-3.
18.

The terms and conditions of the insurance policy had been produced on record as Ex. OP-8. Under the terms of the insurance policy, the insurance company had rightly cancelled the policy and similar right has been given to the insured also. The policy obtained by concealment of material facts is void and can be cancelled at any time.
19.

Admittedly, the complainant has prayed that the opposite parties may be directed to continue the policy for the year 2008-2009 and besides this, has prayed for compensation and litigation costs.
20.

The present policy – Ex.C-7 was cancelled on 22.1.2009. The said policy commenced on 14.9.2008 and was to be continue till 13.9.2009. Since the policy has been cancelled on 22.1.2009, therefore, the complainant is entitled for the premium amount from 22.1.2009 to 13.9.2009 alongwith interest. Admittedly, the said policy was to continue till 13.9.2009, therefore, no fruitful purpose will be served,if direction to the opposite parties is given to continue the said policy till 13.9.2009, as the order is being pronounced on 1.9.2009.
21.

The complainant has paid Rs. 3,812/- qua Ex. C-7 from 14.9.2008 to 13.9.2009, therefore, she is entitled to premium amount from 22.1.2009 to 13.9.2009. Since the opposite parties have not refunded the premium from 22.1.2009 to 13.9.2009, therefore, it amounts to deficiency in service, consequently the complaint is allowed with the direction to the opposite parties to pay the premium amount from 22.1.2009 to 13.9.2009 with interest @ 9% per annum from the date of filing of the complaint i.e., 28.4.2009 till realization. Litigation expenses are assessed at Rs. 1,000/- to be paid by the opposite parties to the complainant within one month from the date of receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Jagdish Lal Bhatla s/o Sh. Raja Ram r/o Model Colony, Banga Tehsil and Distt. SBS Nagar. ….Complainant.

Versus



1. United India Insurance Company Limited, Banga Road, Nawanshahr Tehsil & Distt. SBS Nagar.

2. Heritage Health Services Pvt. Ltd. 1102 Raheja Chambers Free Press, Journal, Nariman Point, Mumbai-400021.

….Respondents



O R D E R

Present complaint has been filed by the complainant Jagdish Lal Bhatla U/s 12 of the Consumer Protection Act (hereinafter referred as the Act) against United India Insurance Company Limited, Banga Road, Nawanshahr Tehsil & Distt. SBS Nagar. Admitted facts of the case are that the complainant had obtained overseas Medical Claim Insurance Policy No.110502/46/05/08027 Valid from20/07/2005 to 16/01/2006 from Op no.1 the same was registered with Op no.2. It is alleged that while in Australia, the complainant suffered a heart attack on 17-09-2005 and was treated for the said ailment in Australia.


On his return from Australia he submitted his claim for Rs 16 lac as medical expenses to Op No.1 and the same was forwarded to the OP No.2; that all the required documents and information were sent to Op No.2 from time to time but to his surprise the Op no.2 repudiated his claim by a letter dated 28-08-2007 on flimsy and untenable grounds like that the complainant had suppressed the fact of pre-existing diease at the time of obtaining the insurance policy. It has been alleged that the OP No.1 & 2 have taken an evasive ground to discharge their liability. The complainant has alleged that he has been made to suffer unwarranted and uncalled for harassment from the Ops. Hence it is prayed to direct the Ops not only to pay the actual medical expenses i.e Rs.16 lacs (Sixteen Lacs) incurred in the treatment of the complainant but also to pay Rs.1 lac as compensation; both along with the interest @ 2 percent PA from the date of submission of the claim till its payment.



2. In response to the notice the ld counsel for the Op Sh. P.K. Dhir, advocate, in the written statement contended that the complainant has not come to the Forum with clean hands and has suppressed the true and material facts from the Forum as he has not disclosed the pre-existing diease at the time of the obtaining the policy. The learned counsel has also taken a preliminary objection that the complaint is not within time. On merits the learned counsel of the Ops reiterated his stand that the complainant has violated the terms and conditions of the insurance policy i.e. as per the general condition of the policy 10 (C) pre-existing diease “any sickness for which the ensured person has sought any medical advice or has taken medical treatment in the preceding 12 months prior to be commencement of travel”. The complainant has breached this condition by hiding his pre-existing diease which is evident from doctor's remarks in the Saint Vincent's Hospital in Australia wherein it is mentioned "that the complainant was 65 years old gentlemen, admitted for cardiac catheterization; and he has a history of non insulin requiring diabetes and a six month history of extertional chest of discomfort breathlessness.


His recent stress was positive with infer oposterior wall ischemka; that the complainant has several proximal 3 vessal coronary artery disease with well preserved left ventricular systolic function and he is suffering of left main conronary artery." Therefore, it has been contended that the complainant obtained O.M.C. insurance policy on 20-07-2009 and suffered heart attack on 17-09-2005 that he did not disclose the ops pre-existing disease of heart attack and diabetes as required under the policy conditions. The Ops have further contended that the complainant is not entitled for any claim or any interest due to violation terms and conditions of the policy in question, therefore prayed to dismiss the complaint with costs etc.

3. To prove his allegations Sh.J.D. Jain, advocate, counsel for the complainant tendered in his evidence affidavit of the complainant Ex CA, along with documents Ex C1 to Ex C42.

4. To rebut the complainant’s evidence Sh.P.K. Dhir, advocate, counsel for the OPs tendered his evidence Ex R1 affidavit of Sh.T.N. Puri Branch Manager UIIC, Ex R-2 Letter of Dr. Vijay Solanki, Ex R-3 letter of Heritage Health Service, Ex R-4 Treatment Record, Ex R-5 report of Dr. Ashok Kunnure, Ex R-6 Insurance Policy, Ex R-7 is Insurance Cover Note, Ex R-8 Proposal Form, Ex R-9 report of Dr. Phillip Spratt, Ex R-10 Progress Notes Report and closed the evidence.



5. We have heard the arguments by both the Learned Counsels, for the complainant, Sh. J.D. Jain, advocate; and Sh. P.K. Dhir, advocate counsel for the Ops & closely considered the case record.

6. The ld counsel for the Ops Sh.P.K. Dhir Advocate argued that claim has been rightly repudiated as the complainant has concealed the material facts from the Op No. 1 at the time of the Insurance as he did not disclose pre-existing heart diease at the time of obtaining policy; To prove his stand, Ld counsel for the Ops has also drawn our attention to a piece of evidence Ex.R-2 i.e. which is letter from Professor David Muller, Director Cardiac Cathetersation Laboratories wherein the Doctor has specifically mentioned “that....... for referring 65 years old gentleman for cardiac a history........"etc.They have also relied upon Ex.R-4 wherein it has been specifically pointed out in the column of ‘chest pain or enzyna’ positive and diabetes also as ‘YES’ positive. Besides in this respect our attention has been drawn to certain case laws like Manju Bala Vs Branch Manager, Life Insurance Corporation of India & Ors- 43,2009 (1) Diwan Surender Lal VS Oriental Insurance Company Ltd & Anr. CPC, 242, 2009 (1) CPC, LIC Vs. Sharda Devi 527 2009 (1) CPC, Kapil Rai Singhani Vs Life Insurance Corporation of India 735 2009 (1) CPC etc wherein the repudiation claim of the insurance companies have been upheld due to suppression of material facts from the insurance company at the time of the insurance..

On the other hand the ld counsel for the complaint Sh.J.D. Jain vehemently argued that the Ops have failed to produce any cogent evidence to prove the pre-existing decease. Regarding Ops' reliance on Ex.R-4, it has pin pointed on this piece of evidence in the column of "chest pain, angina" and ‘diabetes how its controlled’ and has alleged that the Ops have intentionally tempered with this document to prove their stand; to support this allegation our attention has been drawn towards Ex.R-8 the proposal form for Overseas Medical Policy-B, where in asserting that had the complaint been suffering from any pre-existing disease the same could easily had been deducted by various tests; and further that their own contention of pre-existing disease stands falsified by this very piece of evidence i.e. Ex.R-8 which is statement by the medical/specialist expert of the Op Company Dr.D.K. Sood, where in no negative remarks had been noted by specialist doctors

7. Admittedly the complainant obtained overseas medi-claim insurance policy No. 110502/46/05/08027 valid from 20/07/2005 to 16/01/2006. The policy was issued by OP 1 & registered by OP 2; that the complainant suffered a heart attack on 17/09/2005 & was treated for this ailment in Australia. On his return supplied all the documents required along with his claim form to the Insurance Company-the OP. Nos. 1&2. However the OP. No. 2 vide letter dated 28/08/2007 Ex.R3 repudiated the said claim on the basis of the specific exclusion clause of the policy, “all medical expenses incurred directly due to past history aliments……..”etc. Perusal of most significant piece of evidence on record Ex R- 4 for reveals the medical history--- all columns marked correct/ticks--- with little tempering of two columns- ‘chest pain/enigma’—originally marked tick i.e. later on attempted to efface the under column ‘no’ and marked tick under ‘yes’; similar attempt has been made in ''diabetes & how it is controlled" column of Ex.R-4.


It is alleged this temperance of this document could be an after thought exercise, on seeing the Ex. R2 letter of Prof. David Muller directed to Dr. Vijay Solanki ………. Dated 31.10.2005 where in the Dr. David Muller has remarked, "He has a history of non insulin requiring diabetes.........." Appreciating learned counsel for the complainant's reliance on case law cited as 2009 (1) (PU-16) NC we are also of the view that just a doctor’s letter to another in Australia without a supporting affidavit of a Prof. David Muller in Australia is not sufficient to prove that the complainant had hidden his pre-existing disease. Moreover Ops Ex.R8 the proposal form for Overseas Medi-claim Policy Clause-B rather strengthens complainant's arguments that had he been suffering from any pre-existing diease that could surely be judged from the blood tests or other diagnosis undertaken by the DR. K.Sood an expert Dr. very much on the penal of the doctors of the Ops. Relevant column of this piece of evidence are reproduced as under: -

11. Medical history

(A) TO BE COMPLETED BY THE PROPOSER

PLEASE ANSWER THE FOLLOWING QUESTIONS WITH ‘YES’ OR ‘NO’ (A DASH IS NOT SUFFICIENT) AND GIVE FULL DETAILS:-

1. Are you in good health and free from

Physical and mental disease or infirmity _________Yes___________

2. Have you ever suffered from any illness or

Disease upto the date of making this proposal ______No___________

3. Do you have any physical defect or deformity ______No__________

4. Have you ever been admitted to any hospital

Nursing home/clinic for treatment or observation ____No__________

5. Have you suffered from any illness/disease

Or had an accident in the 12 months preceding

the first day of insurance. _________No_________

6. If the answer is ‘yes’ to any of the foregoing

questions please give full details as under: _______NA____________

Nature of illness/disease/injury & treatment received


Date on which first treatment taken


First treatment completed/is continuing


Name of attending medical practitioner/ Surgeon with his address & Tel. Nos.


















N.A.






(B) Clauses 1.2 3 & 4 supposed to be completed by the expert doctor& final observation ‘yes fit’; duly signed by the said doctor, are all sufficient to enable us to accept complaint's contentions.

In the light of the record on file we observe that a simple letter by one treating doctor to another in the absence of that doctor’s affidavit fail to prove that the complainant had taken the policy by with holding/by misrepresenting the material fact of pre-existing disease in the proposal form. Moreover no importance can be given to the policy condition 10 (c) i.e. exclusive clause as the Ops have failed to produce any documents indicating hospitalization or outdoor treatment for any disease like angina or diabetes prior to the commencement of the policy dated 20/07/2005 our view in supported by the observations by the Hon’ble National Commission in Praveen Dhamani VS Oriental Insurance Co. Ltd IV (2006) CPJ 189 (NC) " The policy which states that it is not material whether the insured had knowledge of the disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the insurance Company to disown the liability. If this interpretation is upheld, the insurance Company is not liable to pay any claim, whatsoever because every person suffers from symptoms of any disease without the knowledge of the same. this policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bona fide intention of giving.


People are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the insurance company relies on their clause 4.1 of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the medi-claim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom, if this is so every person should do medical studies and further not take any insurance policy”.


Even on the face of record, there is no material to show that petitioner had any symptoms like chest pain, etc. prior to 11-08-2000 Since there were no symptoms so the question of linking up the symptoms with a disease does not arise. In any case, it is the contention of the complainant that he was thoroughly checked up by the doctors who were nominated by the Insurance Company and at that time he was found hale and hearty. In such set of circumstances, it would be difficult to arrive at the conclusion that the insured had suppressed the preexisting diease. The ratio of the above case is generally applicable to the case in hand.

We are of the considered opinion that heart diease could not be diagnosed unless necessary test like E.C.G-Echo –Dopler- angiography etc. are done these tests are made only at the time of pressing need. In the present case there is nothing on record to suggest that prior to the complaint’s admission in St. Vensent clinic on 24.10.2005 as per Ex. R-10 where he was diagnosed "Coronary artery disease" Therefore the sudden occurrence of engyna cannot be ruled out. Hence we fail to appreciate OP’s reliance on various case laws mentioned in in para no.6 of this order: the ratio of these citations is not applicable to the case in hand.

8. In the light of the above discussion we are of the view that in absence of solid evidence that the complainant had pre-existing diease the OP’s repudiation of the complainant's claim for medical treatment is un justified. We are therefore constrained to allow the complaint with direction to the Op No.1 The Insurance Company Limited to pay the complainant the medical expenses actually incurred for his treatment in Australia to the tune of Rs.16,18,365/- along with interest @ 9% from the date of submission of the claim to the Ops. However the Ops are at liberty to verify the authenticity of the bills/receipts etc. OPs are further directed to pay Rs/10,000 as compensation for harassment to the complainant.

9. Parties are left to bear their own costs.

10 The copy of this order be sent to the parties as per rules.



11. File be consigned to the record room.

Kirpal Singh son of late Sh. Sarhan Singh, resident of 2455, HIG Flats, Phase-II, Dugri, Ludhiana.

(Complainant)

Vs.



United India Insurance Company Ltd. DO-IV, B-17, Phase II, metro Road, Focal Point, Ludhiana through authorised signatory.

(Opposite party)








O R D E R



1. Insurance medi claim of Rs.59,629.57p lodged by the complainant under the insurance policy no. 201400/48/06/12/00000361, valid from 28.6.2006 to 27.6.2007 was rejected by the opposite party vide letter dated 29.10.2007 on the ground that claim pertains to pre-existing disease. This rejection has been assailed to be arbitrary, null, void, illegal, amounting to deficiency in service on the part of opposite party, in the present complaint under section 12 of the Consumer Protection Act, 1986. Hence, claimed that amount with 18% interest per annum along with litigation cost of Rs.11,000/-.

2. The case of the complainant is that due to ailment his wife was admitted in Deep Hospital from 5.3.2007 to 8.3.2007 and was diagnosed of IHD Anaemia, Shock (Cardiogenic), Parkinsonism & dementia. Thereafter was admitted in Satguru Partap Singh Apollo Hospital, Ludhiana on 8.3.2007 where she breathed last on 10.3.2007 due to cardiac arrest. Spent an amount of Rs. 59,629.57p on treatment, which was claimed under the policy, but opposite party illegally repudiated the claim.

3. Opposite party in reply took preliminary objections that the complaint is not maintainable as there is no deficiency in service on their part. However, admitted that complainant for self and wife had obtained insurance policy under which claim was lodged regarding the amount spent on treatment of wife of the complainant. The claim was rejected, because the insured got treatment qua pre existing disease which she had not disclosed while procuring the insurance policy. Disease and its treatment were direct consequence of previous diseases i.e. IHD, old Myocardial infraction, Cardiogentic shock, Parkinsonism, Dementia, Hypertension, mastectomy for breast cancer and Anemia HB2.


The policy taken by the complainant was the first policy. The diseases were contracted much prior to date of policy, hence, claim was not payable. It was referred to penal doctor namely Sh. Tarsem Lal Gupta and his opinion/report dated 11.8.2007 was obtained. They also took opinion of independent doctor Sh. S.P. Aggarwal, who after considering treatment record concluded and gave opinion that insured died due to complication of pre-existing diseases. Such pre-existing diseases were not disclosed in the proposal form filled and signed by the complainant. They concealed and suppressed the material facts, therefore the claim has rightfully and legally been repudiated. There is no deficiency in service on their part.

4. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

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

6. The claim of the complainant as lodged on account of amount spent on treatment of his wife, who along with him was insured under Health + mediguard Policy, copy of which is Ex.C.1, stand repudiated under letter dated 29.10.2007 Ex.C.2 of the opposite party. The rejection of the claim as mentioned in this letter was on the following grounds:

“We are closing your claim-file , on account of the following reasons:-

Hypertension, parkinsonism and Dementia and Ischaemic heart Disease, mastectomy for Breast Cancer are pre-existing disease. Severe Anemia HB 2.6 GM takes a long time to reach this stage. So No Claim.”

7. Such conclusion was arrived by opposite party after getting discharge card ex.C.3 of Deep Hospital and Ex.C.4 of Satguru Partap Singh Apollo Hospital, analyzed and examined from doctor Tarsem Lal Gupta and Dr. S.P. Aggarwal. Dr. Tarsem Lal Gupta vide his report Ex.R.4 dated 11.8.2007 opined that hypertension, parkinsonism and dementia and ischaemic heart disease, mastectomy for breast cancer were pre-existing diseases. Severe aneaemia HB 2.6 takes long time to reach this stage. He opined that patient in this case was suffering from pre-existing diseases.

8. Similarly, Dr. S.P. Aggarwal vide his opinion Ex.R.5 concluded that case of the patient was of old MI cardiogentic shock, cancer breast, severe anemia, parkinsonism, dementia, hypertension which are complicated diseases and died due to such chronic diseases.

9. In these circumstances, argued on behalf of opposite party that complainant had purchased this insurance policy for self and wife for the first time, but suppressed these chronic diseases of his wife and was dishonest with the insurance company. On account of suppression of material ailments which were pre existing, opposite party rightfully and legally rejected the claim.

10. On the other hand, Sh. M.S. Sethi Advocate, Ld. counsel for the complainant argued that there is no proof that complainant ever suppressed any diseases or diseases were pre-existing and moreover, it was not contract between the parties to disclose any ailment while insurance incepted for the first time. Because, terms and conditions of the policy were never brought to the notice of the insured nor were supplied to the complainant or his wife. Therefore, they won’t be bound by terms and conditions which were subsequently incorporated by the opposite party in the policy, copy of which is Ex.R.2.

11. On record, opposite party has not placed on record the proposal form under which complainant and his wife applied for insurance policy. That form would have been of immense help to the Fora to reach at the conclusion whether the complainant and his wife suppressed any disease to be termed as pre-existing disease for the purpose of the policy. It may be that problems/ailments for which wife of the complainant took treatment in Deep Hospital and Satguru Partap Singh Apollo Hospital were not mentioned by them in the proposal form, so as to suppress it, the document was withheld by the opposite party. Hence, we would be justified under section 14 of the Evidence Act, to presume that proposal form is deliberately withheld by opposite party to suppress conditions thereof from our perusal and also for the reasons that complainant had mentioned such ailments of his wife in the proposal form.

12. The insurance policy of the complainant and his wife commenced on 28.6.2006 till 27.6.2007. But along with the policy Ex.C.1, terms and conditions of the policy were neither made available nor supplied to the complainant. This policy only contains stipulation that “Insurance would not extend to pay any expenses incurred relating to the disease(s)/sickness/injury mentioned in this column and for consequences attributing thereto or accelerated thereby or arising therefrom.”

13. But no disease/injury or sickness for the purpose of exclusion is mentioned in this policy Ex.C.1. Whereas opposite party has brought on record copy of the insurance policy Ex.R2 issued in favour of Sh. Kirpal Singh complainant. As per date of print on the policy, it was issued on 30.1.2009. It means, the terms and conditions of the insurance policy which was valid from 28.6.2006 to 27.6.07, were subscribed and printed on 30.1.2009. This as such shows that terms and conditions of the policy were printed in the form Ex.R.2 after more than one and half year of the lapse of the insurance policy.


The policy under condition no.4.1 pertaining to exclusion absolve the insurance company from payment of any expenses relating to pre-existing disease which exists when the cover incepts for the first time. When terms and conditions of the policy were printed in Jan.2009, though policy had lapsed on 27.6.2007, clearly spells that it is never made available by opposite party to the complainant during validity and currency of the policy. In other words, terms and conditions of the policy were never brought to the notice of the complainant, nor copy of the insurance was supplied to him. As a result, it would be apparent that complainant was never made aware of the exclusion clause of the policy, which was not supplied to him at all.

14. Hon’ble Union Territory State Consumer Disputes Redressal Commission, Chandigarh in case New India Insurance Company Ltd. Vs. Saroj Sian & Anr. reported in2008(1) CLT,178 has held that where there is no evidence that exclusion clause of the policy was brought to the notice of the insured, claim can not be repudiated, as exclusion clause was not disclosed to the insured.

15. Hon’ble National Commission in case Torrent Securities Pvt. Ltd. Vs. National Insurance Co. Ltd. reported in II (2007) CPJ 251 (NC) where the policy terms and conditions were provided to the insured after 10 months and that too after taking place of the accident, Hon’ble National Commission in such circumstances held that the insured would not be bound by terms and conditions, as it did not constitute a valid contract.

16. Similarly in the instant case, we can conclude with certainty that there was no valid contract between parties contracting exclusion clause 4.1 of the terms and conditions of the policy ex.R3. Because, these terms and conditions were neither brought to the notice of the complainant nor supplied to him . Hence. he would not be bound by the same.

17. Onus to prove the suppression lies on the insurer. In case United India Insurance Co. Ltd. Vs. Krishan Narain Sharma reported in II (2009) CPJ 496(Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh) proposal form furnished by the insured was not produced on record Information given by the insured originally not known. Insurance Company in circumstances was held liable to pay the claim under the policy.

18. In view of these circumstances and aspects of the case in mind, we are clear in our minds that opposite party was not justified in repudiating the claim. Because there was no evidence that the complainant committed fraud by suppressing diseases of his wife when purchased the policy for the first time. Secondly there is no proof that terms and conditions of the policy were brought to the notice of the insured or such terms and conditions were supplied to them. Hence, insured would not be bound by terms and conditions of the policy Ex.R.2 which was printed in Jan. 2009, though policy had lapsed on 27.6.2007.

19, Consequent to the discussions, we are constrained to allow this complaint by setting aside repudiation letter of the opposite party. Resultantly, order opposite party to settle and pay claim of the complainant in terms of the policy Ex.C.1 within 30 days of the receipt of copy of the order and for causing harassment to pay compensation and litigation cost compositely assessed at Rs.5000/-(Rs. Five Thousands only). Copy of the order be made available to the parties free of costs. File be completed and consigned to record.

Kuldeep Singh son of Sh. Baljinder Singh, resident of House no.99, Ward No.12, Village Nandpur, P.O. Sahnewal, Tehsil and Distt. Ludhiana.

(Complainant)

Vs.



1. United India Insurance Company Ltd. City branch, 26 2nd Floor, Dharam Singh Market, Amritsar through its Branch Manager.



2. The Branch Manager, United India Insurance Company Ltd. City branch, 26 2nd Floor, Dharam Singh Market, Amritsar.

(Opposite parties)






O R D E R


1. Truck bearing no.HR-37-B-7355, insured with opposite parties from 7.8.2006 to 6.7.2007 vide cover note no. 681342, was found stolen on 23.10.2006 from out side house of the complainant, where it was parked. FIR No.227 dated 24.11.2006 was got registered with P.S. Sahnewal. Claim with opposite parties qua theft under the policy lodged, which despite service of notice dated 26.4.2008, they failed to clear or settle the same. Such act on the part of opposite parties claimed amounting to deficiency in service. Hence, this complaint under section 12 of the Consumer Protection Act, 1986.

2. Opposite parties in reply admitted obtaining insurance from them for his truck by the complainant and subsequently lodging claim. But averred that claim was repudiated due to infringement of condition no. 1 and 7 of the insurance policy. Because, complainant failed to take due precaution and lodged FIR on 24.11.2006 qua the theft dated 23.10.2006. He also failed to intimate for the loss immediately. Intimation regarding loss for theft of the vehicle was given on 18.12.2006 i.e. after 60 days of alleged theft. So, his claim was rejected vide letter dated 19.12.2006 sent to the complainant and he waited for 20 long months to file this complaint.

3. Both the parties adduced their evidence by way of affidavits and documents and stood heard through their respective counsels.

4. After going through the record and hearing the parties, we feel that opposite party was justified in repudiating the claim on account of infringement of terms and conditions of the policy Ex.R.4. Condition no.1 of the policy provides that in case of theft or criminal act, which may be subject of the claim under the policy, the insured shall give immediate notice (emphasis laid) to the policy and co-operate with the company in securing the conviction of the offender. Herein, complainant alleged noticing theft of parked truck on 23.10.2006 but he regarding theft lodged FIR Ex.CW1/P on 4.11.2006. Why such long delay in lodging FIR, no explanation has forth come. Therefore, he himself infringed conditions of the insurance policy.

5. Ld. counsel for the complainant contended that no delay was caused intimating the police qua theft and also to the Insurance Company, which was informed by him vide letter Ex.R.1 dated 17.12.2006.

6. Though alleged theft occurred on 23.10.2006, but intimation to opposite party was given vide letter dated 7.12.2006. This again infringes the terms and conditions of the policy.

7. Complainant withheld the intimation qua repudiation of claim vide registered letter Ex.R.2 dated 19.12.2006. Said letter was dispatched vide dispatch entry Ex.R.25 by opposite party to the complainant as per dispatch entry no.3124 dated 27.12.2006 of the opposite party. This fact was withheld by the complainant from the Fora by claiming that opposite party not decided his claim. Such plea is false.


The claim which was repudiated in December 2006 stand challenged by way of present complaint instituted on 19.8.2008. Whereas, condition no.7 of the policy provides that if the insurance company disclaim the liability to the insured, shall debar the insured to file claim in the court of law beyond the period of 12 calendar months from the date of disclaimer. Disclaimer in the instant case as conveyed by opposite party was made in December 2006 and within 12 months the same was not assailed. In these circumstances, we feel that opposite party-Insurance Company was justified in rejecting the claim due to infringement of terms and conditions of the policy by the complainant.

8. In view of discussions above, finding no merit in the complaint same is dismissed. We leave the parties to bear their own costs.

T. Neelaknata Rao S/o. T Thavitaiah,

age 55 years, Occ: Consultant HR & Legal,

R/o. 1-4-879/58, Bakaram, Gandhi Nagar

Hyderabad – 500 080. Complainant



And



1. M/s United India Insurance Co Ltd.,

rep by its Manager, 1100, LIC Building,

Bank Street, Koti, Hyderabad – 500 095



2. M/s Medseva Health Care Ltd.,

rep by its Manager, Claims Department,

#203, 2nd Floor, Diamond Towers,

Main Guard Road, Secudnerabad – 500 003 Opposite Parties







This case coming on this day for final hearing before this Forum in the presence of Sri Y. V. Narasimhacharyulu, Counsel for Complainant and Sri S A V Ratnam, advocate, for the Opposite Party No 1 and OP2 set exparte and having stood over till this date for consideration, this Forum pronounced the following:-



O R D E R







1. This is a consumer complaint filed under Sec. 12 of Consumer Protection Act, 1986 seeking a direction to the Opposite Parties to pay Rs. 2,43,525/- with interest @ 24% towards the sum assured in 2 policies, pay compensation of Rs. 5,00,000/- for mental agony, hardship and award Rs. 40,000/- towards costs.





:2:



2. The complainant’s case in brief is that he has been holding a Group Floater Medi-claim Policy for an assured sum of two lakhs rupees from the Opposite Parties, while he was in service for his family, especially for his wife Mrs. T. Hemavathi (Card No 520 1070 4006182 C). He also took another Medical Policy for an assured sum of Rs. 1.25 lakhs in his wife’s name in the year 1989 (Card No 520 3070 5028530 C). His wife was admitted in Global Hospital Hyderabad on 07.11.2005 where doctors advised her emergency surgery. The complainant and his employer wrote to the Opposite Parties on 07.11.2005 informing the facts and requesting them to arrange for cashless admission etc., in Global Hospital.


She was again admitted in Global Hospital on 10.11.2005 and underwent surgery for valve replacement on 11.11.2005 and discharged on 18.11.2005, the total expenditure involved being Rs. 2,83,525/-. The original bills along with detailed statement were submitted to the Opposite Parties on 28.11.2005. Though several letters were written to the O Ps, they failed to settle the claim. Meanwhile, as the complainant worked in Government owned corporation, he had applied for medical reimbursement to the Director of Medical Education. As original bills were required for the purpose, he requested the Opposite Parties to write to the Director of Medical Education stating that the original bills were with them. But the Opposite Parties did not oblige him and it amounts to deficiency in service. At last they released an amount of Rs. 40,000/- by Cheque, dated 03.08.2006. In spite of several representations, they failed to release the balance amount of Rs. 2,43,525/-.



3. The Opposite Party No 1 in the counter contended that as per policy conditions, the complainant should have informed the Opposite Parties before the surgery, but he did not adhere to the policy conditions. Further the documents filed by the complainant were not acknowledged by the Opposite Parties. The group policy taken by the complainant covered only Rs. 40,000/- per head until 2004-05 and thereafter on Rs. 2,00,000/- for family vide Floater Policy

:3

No 052201/48/04/87/00001668 for the period 27.01.2005 to 26.01.2006. Dr. Gokhale’s note revealed that the wife of the complainant was suffering from shortness of breath and orthpnoea for the past 2 years and diagnosed a suffering from as moderate MS, AS and AR and as the disease was of 2004, the OP insurance company had settled the claim for Rs. 40,000/- as per the policy in 2004-05. As the complainant had another policy covering risk up to Rs. 1,56,250/- and as an amount of Rs. 40,000/- was already paid, an amount of Rs. 1,56,250/- only had to be paid by the insurance company. However the complainant did not file the copies of policies and his complaint is also time barred.



4. The points that arise for consideration are:



1. Whether the complaint is time barred?
2. Whether the complainant is entitled to his claim for the deficiency in service?



3. To what relief?



5. The Complainant filed evidence affidavit, written arguments and relied on Exhibits A 1 to A 5. The Opposite Party No 1 filed counter, evidence affidavit and written arguments. Opposite Party No 2 remained exparte. The complainant’s counsel alone advanced oral arguments.



6. Point No i: As the Opposite Party had issued a Cheque, dated 03.08.2006 for Rs. 40,000/- in favour of the Complainant as part settlement (not to the satisfaction of the complainant), the cause of action has been continuing and the complaint having been instituted on 26.07.2008 is not time barred.



7. Point No ii: It is an admitted fact that the complainant, a retired employee had taken two medical policies which covered his wife. The point of difference is regarding the sum assured by the Floater Policy No 052201/48/04/87/00001668 for the relevant period. The complainant and his employer contended that it was Rs. 2.00 lakhs, whereas, as per the O P No 1 it was Rs. 40,000/- only. Ex. A1 is the Xerox copy of the Insurance card in the name of the Complainant and his wife.

:4:



The complainant and his employer informed the Opposite Parties vide their letter, dt. 07.11.2005 (Ex. A-2) about the need for surgery for Smt. T. Hymavathi and requested for arranging cashless admission etc., in Global Hospital. As is evident the Opposite Parties did not reply to this or any other representations. Ex. A-3 is the copy of letter by the complainant, dated 28.11.2005 along with the original bills etc., to the Opposite Parties. Ex. A-4 is the copy of letter, dated 16.05.2006 from the Director of Medical Education returning medical bills of the complainant for want of all original bills. It is pertinent to note that the complainant had requested the opposite parties to inform the Director of Medical Education that the original bills etc were with them. But they neither obliged him nor settled his claim. It appears that they had harassed the complainant very much. It goes without saying that it amounts to severe deficiency in service. Further, at no point of time, the Opposite Parties have clarified anything to the complainant or his employer.



8. Though the Opposite Party in their counter admitted that the amount to be paid by the Insurance Company to the complainant is Rs. 1,56,250/- they expressed their willingness in their evidence affidavit and written arguments to pay an amount of Rs. 1,25,000/- only. We wonder, how did they reduce it to Rs. 1,25,000/-?.


But one should not lose sight of the fact that the amount had to be paid at least along with Rs. 40,000/-, which they had paid on 03.08.2006 which was 8 months after submission of the claim. It is needless to say that there is serious deficiency in service on the part of the opposite parties. Even accepting the contention of the opposite parties that the amount to be paid to the complainant is only Rs. 1,56,250/- means that they had withheld the amount payable to the complainant for more than 3½ years. One can imagine the difficulties faced by a retired employee in procuring so much of amount and the interest payable on private loans. So, the OPs have to pay the said amount with interest. Justice demands that the complainant is also entitled for compensation for mental agony and hardship faced by him. We feel it just to award compensation of Rs. 25,000/-

:5:



9. Point No. III: In the result, the complaint is allowed. The Opposite parties are directed to pay an amount of Rs. 1,56,250/- with 12% interest per annum from 03.08.2006 till the date of realization, Rs. 25,000/- towards compensation and Rs. 2,000/- towards costs within 30 days to the complainant.

1. K.Ananda Rao,

2. K.Shankar Rao

3. J.kanakaratnam

4. Muthamala Sanjeeva Rao

5. Varaparra Samiyelu

6. Jangam Prasada rao

7. Velpula Kanakarathan

8. Varlaparia Joji,

9. Sarikonda Satyanarayana,

10. Sangm Sesi



All are resident of Mittapalli village, Thallada mandal, Khammam

Dsitrict, rep. By their G.P.A. holder by name Armidipuram Ranga

Rao, s/o.Ramaiah, agea; 54 years, occu: Photographer, r/o.Tiruvuru

village, Tiruvuru mandal, Khammam District.

…Complainant

and



The Branch Manager, United India Insurance Company, Direct

Agents Branch, O/o.3-5-874 to 875, 5th floor, Basheerabagh,

Hyderabad

…Opposite party.



This C.C. came before us for final hearing on 1-9-2009; in the presence of Sri.K.Jagan Mohan Rao, Advocate for complainant and of Sri.G.Seetha Rama Rao, Advocate for opposite party; upon hearing the arguments and upon perusing the material papers on record, and having stood over for consideration, till this day, this Forum passed the following order:


O R D ER





1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The brief facts of the complaint are that the complainant No.11 is the G.P.A. holder and filed the complaint on behalf of complainant Nos.1 to 10. The complainant had joined in the policy introduced by opposite party namely Nadalahari policy and taken ten D.Ds. each for Rs.65/- in the name of opposite party on 3-11-2005 drawn on Andhra Bank, Thallada branch and the sent the same by way of courier and were issued by opposite party on 3-11-2005. Even after receipt of D.Ds., the opposite party did not send policies in the name of complainants.


The G.P.A. holder pursued the matter and addressed letters, 3-11-2006, 3-11-2007, 3-8-2007, 20-8-2007, 29-9-2007, 3-10-2007, 17-12-2007 and lastly on 10-11-2007 the complainant got issued a legal notice, at last the opposite party has sent lapsed policies on 1-4-2008 stating that the policies were valid from 11-11-2005 to 10-11-2006, due to which the complainant suffered a lot of mental agony. The act on the part of opposite party amounts to deficiency in service, due to which the complainants suffered mental tensions. Hence, the complainant claiming an amount of Rs.2,00,000/- towards pain and suffering and mental agony.

2. On receipt of the notice, the opposite party filed counter and admitted that the complainant joined in the policy of opposite party and also admitted the receipt of demand drafts on 3-11-2005, which were sent by the courier, but denied that the complainant suffered mental agony because of non issuance of policies and insurance certificate. It is further contended that the opposite party has not delayed in submitting the information. Since there is no deficiency in service on the part of opposite party, there is no liability as claimed by the complainant.

3. On behalf of the complainant, the following documents have been filed and marked as Exhibits

Ex.A.1 - copy of insurance policy, Ex.A.2 - Letter addressed by the opposite party to the complainant, dt.1-4-2008, Ex.A.3 - Letter, dt.2-11-2006 addressed by the opposite party to the complainant Ex.A.4 -Letter, dt.3-8-2007 addressed by the complainant to the opposite party Ex.A.5- Letter, dt.7-8-2007 addressed by the opposite party to the complainant. Ex.A.6 - Letter, dt.20-8-2007 addressed by the complainant to the opposite party along with postal receipt Ex.A.7- Complaint-Acknowledgment,dt.17-9-2007 Ex.A.8 - Complaint - Settled reply, dt.19-9-2007 Ex.A.9 - Letter, dt.29-9-2007 addressed by the complainant to the opposite party Ex.A.10 - Legal notice along with acknowledgment, dt.10-11-2007Ex.A.11 - Letter, dt.20-11-2007 addressed by the opposite party to the complainant. Ex.A.12 - Letter. D,t17-12-2007 addressed by the complainant to the opposite party. Ex.A.13 - courier receipts Ex.A.14 - Acknowledgment along with postal receipt. Ex.A.15 - Letter, dt.3-10-2007 addressed by the complainant to the opposite party.

4. On behalf of the opposite party, policy is marked as Ex.B.1, certificates issued by opposite party in favour of the complainants is marked as Ex.B.2.

5. Both parties filed their written arguments. Heard both sides. Perused the oral and documentary evidence, the point that arose for consideration is,

Whether the complainants are entitled to compensation

for undergoing mental agony and pain?



Point:

6. So far as the taking of the policy is concerned, it is admitted by the opposite party and it is also not in dispute that the opposite party received Demand drafts sent by the complainant. The only question in dispute is, whether the complainants have pursued the matter with the opposite party for the issuance of the policy. To substantiate the contention, the complainants have referred to the copies of the letters, but the same have not been filed, but the complainants referred Ex.A.3, a letter, which is addressed by the opposite party to the complainant informing that the policy of the complainant is being issued for the period from 11-11-2005 to 10-11-2006 along with copies of insurance certificates.


As per the contents of this letter, the policy is said to have issued to the complainants along with copies of insurance certificates, on 1-4-2008, whereas the policy is for a period from 11-11-2005 to 10-11-2006. As on the date of issuance of Ex.A.3, the validity of the insurance policy became lapse. The contents of Ex.A.3 substantially go to establish that there is delay on the part of opposite party in issuing the policy and certificates to the complainant. This delay on the part of opposite party has not been properly explained. This act on the part of opposite party amounts to deficiency in service. Taking into consideration of the above facts and circumstances, the complaint is to be allowed.

7. In the result, the complaint is allowed, directing the opposite party to pay an amount of Rs.10,000/- (Rupees ten thousand only) (Rupees one thousand each) to the complainants No.1 to 10 as compensation towards mental agony and sufferance, within a period of one month from the date of this order. Further the opposite parties are directed to pay an amount of Rs.1,000/- towards costs of the litigation.

G. Dattatrayulu,

S/o Venkata Subbaiah,

R/o Ward No.29, beside church,

Bapatla, Guntur district.

2. G. Subbayamma,

W/o Dattatrayulu,

R/o Ward No.29, beside church,

Bapatla, Guntur district. …Complainants

and

1. The Divisional Engineer,

M/s United India Insurance Company Limited,

Divisional Office, IV 2nd floor,

Posnett Bhavan, Tilak Road,

Hyderabad-1.

2. The Branch Manager,

Andhra Bank, Bapatla,

Guntur district. …Opposite parties







O R D E R




This complaint is filed U/S 12 of the Consumer Protection Act, 1986 by the complainant’s seeking directions on the opposite parties for payment of Rs.32,755.- towards mediclaim, Rs.50,000/- towards mental agony, pain and suffering and Rs.10,000/- towards costs of litigation and to pass such other order as deemed fit and proper.

The brief facts of the case are that,

The 1st complainant is having an account in Andhra Bank, Bapatla branch, Guntur. He has insured under Group Mediclaim Insurance having Andhra Bank account vide policy No.050400/48/04/003d50 F.No.371200 and the same is in force till 10-06-07. The policy was issued by the opposite parties. It covers both the complainants and their son. Further it is submitted that the complainants have taken treatment at M/s.Lalitha Super Speciality Hospital, Guntur during the period from 11-07-06 to 17-07-06 and the treatment charges were billed to a tune of Rs.32,755/-. The hospital authorities have sent the bills to the office of the 1st opposite party for payment. Subsequently the complainants came to know that the amount was not paid by the opposite parties to the hospital authorities so far. As the opposite parties have failed to pay the same, the hospital authorities are pressurizing the complainants to pay the same.


Prior to this treatment the District Forum, Guntur also instructed the 1st opposite party vide its Judgement dated 27-12-05 to pay the bills on receipt of the same, but the 1st opposite party failed to pay the same. The complainant also issued notice to the opposite party demanding the payment but they failed to do so. The 1st opposite party acted negligently and there is deficiency of service. Finally the complainants have got issued legal notice 17-11-06 through their counsel demanding for payment, but the same is not complied. Because of this attitude and behaviour of the opposite parties, the complainants have suffered mentally and financially. Hence, the complaint.

The 1st opposite party filed its version denying the allegations made in the complaint in the formal way. It is stated that there is no cause of action in filing the present case as no claim was lodged with them by the complainant for the treatment taken from 11-7-06 to 17-07-06 as alleged, the complainant is put to strict proof of the same. The 2nd opposite party is also not informed about the alleged claim by the complainant. Further, it is submitted that the complainant previously filed a complaint before the District Consumer Forum, Guntur in CC 174/05 against the denial of authorization for cashless service to him. The same was dismissed by the Forum vide its order date 27-12-05. Therefore, the allegation that this Forum directed this opposite party to pay treatment charges on receipt of bills from the hospital is not correct. As there is no claim, there is no deficiency of service. Therefore, it is prayed to dismiss the complaint.

The 2nd opposite party filed its version denying the allegations made in the complaint. According to them they have marketed a policy of United India Insurance and its full details and eligibility of claim etc., and the complainants are well aware about the same. Deviating the said conditions, the complainant is not entitled to claim for any amount. The complaint is silent about the role of this opposite party. The complainant ought not to have impleaded this opposite party as claim lie against the 1st opposite party alone. This opposite party is not aware of the earlier Judgement of the Forum dated 24-12-05. Therefore it is prayed to dismiss the complaint.

Both parties have filed their affidavits apart from marking documents. On behalf of complainant Exs.A-1 to A-10 are marked. On behalf of 1st opposite party Exs.B-1 to B-3 are marked.

Now the points for determination are that,

1. Whether there exists any deficiency of service on the part of the 1st opposite party as alleged by the complainants?

2. Whether the complainants are entitled for relief sought for?

3. To what extent?



POINT No.1:- On perusal of the pleadings and evidence on record, there appears absolutely no dispute about the complainants covering under Group Mediclaim Insurance known as AB Arogyadaan by the United India Insurance Company Limited which had tie up with Andhra Bank. As per Ex.A-1 this policy covers the complainants and his family members. The policy is in force upto 10-06-07. It is the allegation of the complainants that they have taken treatment at M/s.Lalitha Super Speciality Hospital, Guntur from 11-07-06 to 17-07-06 and incurred an expenditure of Rs.32,755/- towards their treatment and the hospital authorities have submitted the bills to the insurance company and the same has not been cleared yet. As the bills were not cleared the hospital authorities are said to have been demanding for payment. Therefore, it is their contention that earlier they got issued a notice and lastly legal notice on 17-11-06 vide Ex.A-3 for clearing the bills of the hospital. Despite of receipt of the notice by both the opposite parties vide Ex.A-4 acknowledgements the same was not cleared, as such, they have constrained to file this complaint.


It is also brought to the notice of the Forum that on similar lines for earlier time also the opposite parties have not cleared the bills of the hospital as such they resorted in filing CC 174/05 before this Forum, wherein, suitable directions were issued to the opposite parties for payment of bills vide Ex.A-6. On 16-09-07 also the complainants said to have addressed a letter to the Divisional Manager of 1st opposite party, Hyderabad demanding payment of bills for the treatment taken by the complainants, of course, this letter is subsequent to filing of this complaint. The complainants have filed the bills issued by M/s.Lalitha Super Speciality Hospital, Guntur vide Ex.A-2 and other bills on record. As per these bills the 1st complainant took taken treatment in the said hospital from 11-7-06 to 16-7-06 whereas the 2nd complainant from 14-07-06 to 17-07-06.


The learned counsel for the complainant submits that the bills pertaining to their treatment were directly sent by M/s.Lalitha Super Speciality Hospital, Guntur to the insurance company and that they have misplaced the record showing proof of submitting the same. But the complainants have very much brought to the notice of opposite parties, but still they have not cleared the same. The complainants have also relied upon courier service vide Ex.A-8 and Ex.A-9. This shows that he has dispatched the parcel on 16-09-07 and the same was received at Hyderabad on 17-9-07 but it does not bear the signature of the insurance company as it is a courier receipt.

The version put forth by the insurance company is that they have not received any claim as such the complaint is premature and there is no deficiency of service on their part. The learned counsel for 1st opposite party had relied upon Ex.B-1 which is a copy of certificate of insurance pertaining to the period from 7-09-04 to 8-6-05, this appears to be a previous policy. It appears that this policy pertains to previous years and the same is being continued on payment of premium from year to year. Ex.B-2 is the repudiation letter dated 03-01-07 by Insurance company addressed to the counsel for the complainants stating that they have received legal notice regarding the complaint made before the Consumer Forum against denial of cashless service. The letter also further reads that the complainants have filed CC 174/05 on the file of this Forum for denial of authorization for cashless service to him.


But it is not true that Consumer Forum has directed the insurance company for making payment and the same was dismissed vide Judgement dated 27-12-05. It is also stated that they have not received any claim from the complainants since then and no claim is pending with them for settlement. This letter shows that the 1st opposite party mentioned all about earlier claim and the dispute raised before the Forum vide CC 174/05 and non receipt of further claim in pursuance of the said judgement whereas Ex.B-3 letter dated 20-07-07 addressed from their head office to branch office at Guntur with receipt to the aforesaid policy, who state that the head office has received the following

1. certificate of insurance,

2. letter from HHPL stating that in CD 174/05, the case was dismissed on 27-12-05,

3. Advocate letter copy,

4. Speaking note giving full particulars of claim details. Further FHPL have stated that the opposite party has not submitted any claim papers to them for processing. Basing on the above points, they may represent the case.

This letter also clarifies the position about the earlier dispute. From the above referred documents on record there is no repudiation letter about the present claim from the opposite parties. Of course, they made it clear in their version that they have not received any claim for payment of bills either from the M/s.Lalitha Super Speciality Hospital, Guntur or from the complainants pertaining to the present treatment. Therefore, the learned counsel for the 1st opposite party argues that the complaint is premature and no deficiency of service on their part.

In this regard he also rely upon the following decisions,

1. I (1995) CPJ 61 (NC), Chief General Manager, MTNL vs. Suresh Bhargav, the National Commission held that a well reading of the definition of the term ‘deficiency’ in the Consumer Protection Act would show deficiency in service must involve a breach of legal or contractual obligation or deficiency in service which has been undertaken to be performed otherwise.

2. (1999) 6 SC 451, Oriental Insurance Company Limited vs. Sony Cheriyan, the Apex Court held that the insurance policy in between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to

determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy”.



The aforesaid decisions reflect on the position that the terms of contract got to be observed strictly for assessing as to deficiency of service or any shortcoming on their part in implementing the terms and conditions of the policy. But the present dispute strictly does not rest upon the terms and conditions of the policy nor challenging them on any deviations. As the claim admittedly arose under the policy, the complainants want the settlement of the same. Whereas the contention of the insurance company is that they have not received any such claim either from the hospital or from the complainants.


Therefore, we are of the considered view that as there is no satisfactory evidence to prove that the claim has been received by the Insurance company, we hold that the same is premature one and deficiency of service does not arise. What we further observe is that on earlier occasion also similar thing has happened in respect of the treatment obtained by these complainants and settlement of mediclaim. This is 2nd occasion again, it is very much painful that the claims of the insured remained unsettled for pretty long time on one or other grounds. Therefore, the hospital authorities and the insured be cautious enough to send their claim forms along with the bills while following the procedure under proper acknowledgment.

Accordingly, we direct the complainants herein and the hospital authorities to submit the claim form and relevant bills pertaining to the period under treatment to the 1st opposite party and upon receipt of the same, the same shall be settled as per the terms and conditions of the policy.

In the result, the complaint is disposed of with the following directions:

1. The complainants herein and M/s Lalitha Super Speciality Hospital, Guntur shall submit the claim forms and the bills pertaining to the treatment of the complainants during relevant period to the 1st opposite party as per the procedure and under proper acknowledgment within a period of 15 days.
2. On receipt of such claim and bills the 1st opposite party shall make endeavor to process the same in bonafidee manner and settle the claim as per terms and conditions without causing further hindrance in the matter.
3. Each party shall bear their own costs.

Shri Bir Pal son of Sh. Kishan Chand resident of village and Post Office Kalwari, Tehsil Banjar District Kullu, H.P. owner of Trax jeep No. HP-49-0815

…Complainant.

V/S



The United India Insurance company through its Branch Manager, Dhalpur, District Kullu, H.P. ..Opposite party.








ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986

( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The complainant averred that he is registered owner of vehicle No. HP-49-0815( Trax jeep ) Goods carrier which was duly insured with the opposite party on 17-2-2007. During the subsistence of the policy the vehicle in question met with an accident on 6-1-2008 near village Khotinala , Sub Tehsil Aut , District Mandi when the same skid and struck to the hill side . No report was lodged with the police as no third party loss was involved in the accident . The complainant reported the matter to the opposite party immediately and the surveyor of the opposite party visited the spot and taken the photographs of the accidental vehicle. The complainant submitted all the relevant documents with the opposite party for settling the claim and salvage had also been deposited with it.


The complainant averred that the opposite party with malafide intention has not settled the claim of the complainant and intentionally and deliberately deposited the amount of Rs.17,697/- instead of Rs. 40,340/- in the loan account of the complainant without any intimation and notice to him which is clear deficiency in service on it part . The complainant further averred that he had requested the opposite party orally and reminders were sent to pay the remaining amount of the claim but of no avail .With these averments , the complainant had sought a direction to the opposite party to pay balance amount of Rs.23,311/-alongwith interest at the rate of 18 % per annum Apart from this, Rs 50,000/- has also been claimed as compensation besides costs of complaint.

2. The opposite party filed reply wherein it has taken preliminary objections that there is no deficiency in service on its part because the opposite party has already deposited the claim amount in the loan account of the complainant and as such the present complaint is not maintainable and prayed for dismissal of the complaint. On merits ,the opposite party had admitted the insurance of the vehicle and its accident . It has been admitted that claim was registered and was got assessed from the expert in terms of the insurance policy and the expert had assessed the same at Rs.16,821/- as per report of Surveyor Annexure R-2. It has been averred that the vehicle was insured by the financer i.e. State Bank of Patiala Branch Office Jibhi and the bank has paid the premium and after the accident the Bank had also requested to settle the claim.


The Bank in its letter dated 24-3-2008 had requested the opposite party to send the claim cheque in the bank account of the complainant and a sum of Rs.17,079/- by way of cheque deposited in the loan account of the complainant The receipt voucher is Annexure R-4 and Motor claim note is Annexure R-5. It has further been averred that since the complainant has received the claim in full and final settlement of the claim there is no deficiency on its part and the complaint is not maintainable . Rest of the allegations have been denied. The opposite party had prayed for dismissal of the complaint.

3 The complainant had filed rejoinder reiterating the contents of the complaint and controverted the allegations made in the reply .

4 We have heard ld. counsel for the parties and have carefully gone through the entire case file. Be it stated that the insurance of the vehicle and its accident is not in dispute. At the very out set it is stated that the opposite party had settled the claim of the vehicle and deposited Rs.17,697/- in the loan account of the complainant which fact is not disputed by the complainant.


The case of the complainant is that he had spent Rs. 40,340/- for the repair of the vehicle in question with respect to damage caused in the accident , but the opposite party had deposited a sum of Rs.17,697/- only in his loan account . As per the complainant , he is entitled to the balance amount of Rs.23,311/- alongwith interest from the opposite party. In our opinion , the onus was upon the complainant to establish by leading cogent evidence that he is entitled to balance amount of Rs.23311/-from the opposite party. However, no satisfactory evidence has been led by the complainant to establish aforesaid fact. On the other hand, the opposite party had adduced in evidence the final report of Surveyor Sh.Rajinder Kumar Sharma dated 23-1-2008,Annexure R-2 wherein he has assessed the loss at Rs.16,821/-.


The complainant should have filed some satisfactory evidence contrary to the report of surveyor , however, nothing has been done . The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor and hold that the complainant is entitled to the amount as assessed by the surveyor and not beyond that. Since the assessed amount has already been deposited in the loan account of the complainant by the opposite party, there is no deficiency in service on the part of the opposite party. In nut shell, the complainant is not entitled to any relief from the opposite party.

5 In the light of what has been discussed hereinabove, complaint fails and is hereby dismissed with no order as to costs .

6 Copy of this order be supplied to the parties free of cost as per Rules.

7. File, after due completion be consigned to the Record Room.

Harbilas Singh aged 60 years S/o Sh. Milkhi Ram, VPO: Kharkan, Distt. Hoshiarpur.


......... Complainant

versus


United India Insurance Company Limited, Jalandhar Road, Hoshiarpur, through its Branch Manager.


......... Opposite Party





1.

The complainant namely Harbilas Singh has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. In short, the facts of the case are that the complainant got the vehicle bearing registration No. PB-07-Q-7319 insured with the opposite party – United India Insurance Company Ltd., for a sum of Rs. 1,80,000/- for the period 1.2.2008 to 31.1.2009.
2.

It is the allegation of the complainant that on 11.1.2009, the said vehicle met with an accident and suffered loss. The information with regard to the accident was given to the opposite party. It is further the case of the complainant that he spent Rs. 40,000/- on the repair of the vehicle. It is also the allegation of the complainant that he was surprised to

receive letter dated 9.3.2009 qua which the opposite party had repudiated the claim on the ground that the driver of the vehicle was having LMV driving licence, whereas the vehicle is registered as LTV.
3.

It is further the allegation of the complainant that the opposite party has illegally repudiated the claim, as the driver who holds a licence to drive LMV is authorised to drive LTV, hence this complaint.
4.

The opposite party filed the reply. The preliminary objections vis-a-vis maintainability, jurisdiction, non-joinder of necessary parties and estoppel were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that the vehicle bearing registration No. PB-07-Q-7319 met with an accident on 11.1.2009 and intimation regarding the accident was given to the answering OP. The claim of the complainant was repudiated on the ground of valid driving licence. It is denied that the vehicle suffered loss to the tune of Rs. 40,000/- in the accident.
5.

It is further replied that after the intimation, an independent Government approved surveyor was deputed to assess the loss and as per survey report, the insured vehicle suffered damage of Rs. 19,732/- subject to deposit of salvage amounting to Rs. 800/-. It is further replied that as per insurance policy, the driver must be in possession of an effective driving licence at the time of accident, only then, the insurance company is liable to pay the claim. In the case in hand, as per the RC and insurance policy, the vehicle is LTV, whereas, the driver Baldev Singh was having driving licence to drive LMV, which is not a valid driving licence to drive the vehicle, hence the claim was rightly repudiated.
6.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, letter dated 9.3.2009 – Mark C-2, copy of insurance policy – Mark C-3, copy of RC – Mark C-4, copy of DL – Mark C-5 and closed the evidence.
7.

In rebuttal, the opposite party tendered in evidence repudiation letter dated 9.3.2009 – Ex. OP-1, survey report dated 23.2.2009 – Ex. OP-2, insurance policy – Mark OP-3, copy of the RC – Mark OP-4, claim form submitted by the complainant – Ex. OP-5, and affidavit of Sh. S.K. Aggarwal – Ex. OP-6.
8.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
9.

The opposite party has repudiated the claim qua Ex. OP-1 as the holder of the driving licence is having LMV driving licence, whereas the vehicle is registered under LTV.
10.

The only point which calls determination from this Court is whether the driver, at the time of accident, was in possession of a valid and effective driving licence? The answer to this is in the negative.
11.

The complainant has produced on record the copy of the driving licence of Baldev Singh, the driver, who was driving the vehicle at the time of accident bearing registration No. PB-07-Q-7319 - Mark C-5. The said driving licence is valid to drive “LMV ONLY”, and is valid upto 19.7.2009. The copy of the registration certificate is Mark C-4, wherein under the Heading “Class of Vehicle”, “LTV” has been recorded.
12.

The law is settled that if a transport vehicle is being driven by a driver, holding driving licence for driving “LMV” only, without there being any endorsement for driving transport vehicle, the insurance company cannot be ordered to pay compensation. Reliance placed on Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., 2000 ACJ 319 (SC) and 2008 ACJ 627(SC), New India Assurance Co. Ltd. Versus Prabhu Lal.
13.

Now, it is clear that if a vehicle is “LTV”, and falls under the category of Transport Vehicle, the driving licence has to be duly endorsed under Section 3 of the Motor Vehicles Act. If it is not done, the person holding driving licence to ply “Light Motor Vehicle” cannot ply transport vehicle. Un-disputedly, the licence of Baldev Singh did not have such an endorsement, therefore, the Insurance Company is not liable to pay any compensation to the complainant. Reliance placed on 2009(1)CLT 454,National Insurance Company Limited versus Sukhbir Singh and another.
14.

The distinction between a 'light motor vehicle' and a 'transport vehicle' is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct licence is required to be obtained. Reliance placed on Oriental Insurance Co. Ltd. v. Angad Kol and others, 2009 ACJ 1411.
15.

Now, it is proved on record that the driving licence of Sh. Baldev Singh, the driver of the ill-fated vehicle was valid for driving “LMV” only and it did not carry the endorsement of “LTV”, therefore, it is held that Sh. Baldev Singh, the driver was not possessing a valid and effective driving licence on the day, the vehicle No. PB-07-Q-7319 met with an accident.
16.

As a result of the above discussion, it is held that the driver of the ill-fated vehicle on the date of accident was not holding a valid driving licence to drive the vehicle in question, therefore, the opposite party had a legal right to repudiate the claim, as per terms and conditions of the insurance policy – Mark OP-3. It is further held that the complainant has failed to prove any deficiency on the part of the opposite party, with the result, the complaint is dismissed. However, no order as to costs. Copy of the order be sent to the parties free of cost. File be consigned to the record room.