IN THE STATE COMMISSION: DELHI

(Constituted under Section-9 Clause (b) of the Consumer Protection Act, 1986)




Date of Decision: 03-03-2009



Appeal No. _FA-08/113

(Arising out of Order dated 10-08-2007 passed by District Forum, Sheikh Sarai, New Delhi, in Complaint No.DF-VII/63/06)







United India Insurance Co. Ltd.

Through The Regional Manager, DRO-I,

8th Floor, Kanchenjunga Building,

18-Barakhamba Road,

New Delhi. ….. Appellant



Versus



Shri Vishnu Dev,

Proprietor of Sudama Stores,

Shop No. 140, Sector-9,

R.K. Puram,

New Delhi. …. Respondent


CORAM


JUSTICE J.D. KAPOOR, PRESIDENT

MS. RUMNITA MITTAL, MEMBER



1. Whether Reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?





JUSTICE J.D. KAPOOR (ORAL)



1. This appeal is directed against the Order dated 10-08-2007 passed by the District Forum whereby the appellant has been directed to pay the balance of the insurance claim of Rs. 4,90,000/- as the appellant company paid only Rs. 2,19,000/- to the respondent as assessed by the surveyor towards loss of the insured goods and also to pay Rs. 75,000/- as compensation for loss of business and Rs. 5000/- cost of litigation.



2. Relevant facts in brief are that the respondent is the proprietor of a general store namely Sudama Stores. He took an overdraft facility of Rs. 4,90,000/- from Syndicate Bank, R.K. Puram, New Delhi and got his store insured with the appellant for the same amount of Rs. 4,90,000/- covering loss by fire, burglary, theft etc. and the policy was valid for the period from 10-12-2004 to 09-12-2005 and he had paid the premium of Rs. 2,360/-. On 27-02-2005 a fire broke out in the locality in which the shop of the respondent was gutted along other shops and jhuggis situated in the area. The respondent approached the appellant insurance company with a claim of Rs. 4,90,000/- who appointed a Surveyor. However, the Surveyor assessed the loss at Rs. 2,90,000/- only on the ground that the shop area was inadequate to store the goods more than the recommended amount. Feeling aggrieved the respondent approached the District Forum for relief.



3. In reply the insurance company came up with the plea that the respondent was not entitled to be indemnified for the alleged loss as he had failed to furnish necessary documents as required by the Surveyor and he had also concealed the fact that he had a godown for storage of the stock and, therefore, the amount assessed by the Surveyor of the company was justified.



4. In view of the entire shop and the goods lying therein having been completely destroyed the District Forum felt convinced that the respondent was entitled for full insurance claim of Rs. 4,90,000/- as in terms of the policy all risks including fire, furniture, trade in stocks etc. etc. were covered.



5. However, aforesaid finding of facts returned by the District Forum has been assailed by the counsel for the appellant firstly on the ground that the material facts were concealed as all the ‘Kirana’ goods were stored in a godown and the shop in question was a retail shop only for sale and as such the goods used to be taken out from the godown and brought to the shop for sale.



6. We have perused the impugned Order closely. The appellant has failed to produce any documentary evidence to show that the respondent was having any godown. He had obtained the policy in respect of the shop which was known as Shopkeeper’s Insurance Policy for all risks including fire, furniture, stock in trade etc. and therefore now to say that he has concealed material facts is not acceptable.



7. However, taking over all view of the matter, we partly allow the appeal by maintaining the direction for payment of balance amount from the insurance amount and reduce the amount of compensation to Rs. 50,000/- which shall also include cost of litigation.



8. Appeal stands disposed of in aforesaid terms.



9. Payment shall be made within one month from the date of receipt of a copy of this Order.



10. Copy of Order, as per statutory requirement be forwarded to the parties and to the concerned District Forum and thereafter the file be consigned to record.



11. FDR/Bank Guarantee, if any, be released under proper receipt.

10

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
BATHINDA

1. 1. 1. 1. 1. 1. 1. 1. 1. 1. CC. No. 150 of 20-05-2008
                              Decided on : 24-03-2009

Daljit Singh S/o Raghunath Singh, aged about 50 years R/o 86, Model Town, Phase-III, Bathinda. ... Complainant
Versus

1. United India Insurance Co. Ltd.,, Regd.& Head Office, 24 Whites Road, Chennai 60014 through its Chairman/Managing Director.
2. United India Insurance Co.Ltd., Regional Office, Feroze Gandhi Market, Ludhiana, through its Regional Manager
3. United India Insurance Co. Ltd., Branch Office, Kotkapura Road, Bagha Purana, Distt. Moga, through its Branch Manager
4. United India Insurance Co. Ltd., Divisional Office, The Mall, Bathinda, through its Divisional Manager.
5. Paramount Health Services Pvt. Ltd., 81 Barodawala Mansion, B-Wng, Ground Floor, Dr. Annie Besant Road, Worli, Mumbai 400018, through its Chairman/Managing Director
   ... Opposite partires

Complaint under Section 12 of the Consumer Protection

1. Act, 1986.
   

QUORUM


Sh. Pritam Singh Dhanoa, President
Dr.Phulinder Preet, Member
Sh. Amarjeet Paul, Member

Present : Sh. Vinod Garg, Advocate, counsel for the complainant.
Sh. Sunder Gupta, Advocate, counsel for opposite parties No. 1 to 4.
Opposite party No. 5 exparte.

O R D E R


SH. PRITAM SINGH DHANOA, PRESIDENT

1. This complaint has been filed by Sh. Daljit Singh son of Raghunath Singh a resident Model Town, Bathinda, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against United India Insurance Company Limited through its Chairman, and Branch, Regional and Divisional Managers and M/s. Paramout Health Services Pvt. Ltd., Mumbai. Briefly stated, the complainant secured Medi-claim Insurance policy No. 201204/48/06/20/00000187 for the period from 30-08-2006 to 29-08-2007 from opposite party No. 3. He had been securing such policies from opposite parties No. 1 to 4 since 15-08-2000. The above said Insurance policy was secured by the complainant by renewal of earlier Insurance policy valid upto 15-08-2006. However, the opposite parties have not conveyed any intimation to him about renewal of policy. He did not file fresh proposal form and was not subjected to medical examination at the time of issuance of present policy. The opposite parties also paid a sum of Rs. 1,75,000/- to the complainant on account of cumulative bonus after he secured the policy under reference, as such, the policy in question is continuous policy for all intents and purposes.
2. The complainant suffered heart ailment all of a sudden on 19-01-2007 and got himself checked from Fortis Hospital, Mohali, where he remained admitted as indoor patient upto 23-01-2007. During the period of admission of the complainant, clinical tests were performed on him in the said hospital and it was revealed after coronary angiography that he is suffering from disease of heart ailment. The doctors gave post PTCA and put a stunt in heart of complainant. He remained admitted upto 23-01-2007 for the said purpose and spent a sum of Rs. 5,27,576/-. On his discharge from hospital, he conveyed intimation to opposite parties No. 1 to 4, who referred the matter to opposite party No. 5 i.e. Third Party Administrator, despite the fact that Insurance policy provides for cashless hospitalisation. The opposite parties No. 1 to 4, in connivance with opposite party No. 5 denied the said benefit to the complainant because of discrepancy in his age vide letter dated 23-01-2007, inspite of submission of medical bills and documents in support of his claim. The complainant paid the entire amount of treatment in the sum of Rs. 5,27,576/- from his own pocket although he has secured the policy for a sum of Rs. 5,00,000/-. The opposite party No. 1, sought copies of policies pertaining to previous years vide his letter dated 14-02-2007, which complainant supplied to him but his claim has not been settled even inspite of legal notice served by him upon the opposite parties through his counsel. Since the opposite parties did not settle his claim, therefore, complainant filed complaint before 'Insurance Ombudsman', Chandigarh, before whom opposite parties No. 1 to 4, took the plea that his claim has been repudiated by opposite party No. 5 on 30-08-2007, on the ground of pre-existing disease in terms of clause 4.1 of policy under reference. It is submitted that no such notice was sent to the complainant by opposite party No. 5 and his decision has no legal affect on his rights under the Insurance policy. The 'Insurance Ombudsman', vide order dated 16-01-2008 treated the policy issued in the name of the complainant as continuous but allowed his claim to the extent of 75% alongwith interest at the rate of 8 percent per annum but he did not accept his claim of remaining amount of Rs. 1,25,000/- and for payment of interest at the rate of 25% to which he is entitled as per the terms and conditions of the policy. The opposite parties No. 1 to 4, have already made the payment of Rs. 4,05,517/- including interest in the sum of Rs. 30,517/- vide cheque No. 053238 dated 30-01-2008. Since the decision given by the 'Insurance Ombudsman', is not binding upon the complainant, hence this complaint.
3. On being put to notice, opposite parties No. 1 to 4 filed written version resisting the complaint by taking preliminary objections that complainant is estopped by his own act and conduct from filing the complaint because he has already received the amount awarded by 'Insurance Ombudsman', alongwith interest from 01-10-2007 till the date of payment; that complainant is barred by principle of res-judicata because controversy in the present case was directly and substantially in issue before 'Insurance Ombudsman'; that complaint lodged by the complainant is not covered by the Insurance policy secured by him by concealing pre-existing disease; that complainant has not filed any appeal or revision against the order passed by 'Insurance Ombudsman', as such, the same became final and binding upon the parties; that he has suppressed material facts from the knowledge of this Forum, as such he is not entitled to the reliefs prayed for; that this Forum has no jurisdiction to entertain and try the complaint as the same is not maintainable and that being false and vexatious, it is liable to be dismissed with compensatory costs. On merits, it is admitted that complainant secured Medi-claim Insurance Policy in question for the period 30-08-2006 to 29-08-2007, but it is denied that he got renewed Insurance policy which expired on 14-08-2006. It is asserted that complainant has obtained fresh Medi-claim policy for the period 30-08-2006 to 29-08-2007, without mentioning that he is suffering from heart ailment although he had been a chronic heart patient. The complainant filed complaint before 'Insurance Ombudsman' under the Redressal of Public Grievances Rules 1998 and Arbitration & Conciliation Act, 1996, and the same was decided by him vide order dated 16-01-2008 allowing his claim to the extent of 75 percent alongwith interest and a sum of Rs. 4,05,517/- including interest at the rate of 8 percent, has been paid to the complainant against proper receipt in terms of his order. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the same with costs.
4. It will not be out of place to mention here that the Opposite party No. 5 has been proceeded against exparte.
5. On being called upon, by this Forum, to do so, learned counsel for the complainant furnished affidavit of complainant Ex. C-19 and copies of documents Ex. C-1 to Ex. C-18, before he closed his evidence. On the other hand, learned counsel for the contesting opposite parties furnished affidavit of Sh. Balwinder Singh, Divisional Manager, Ex. R-1, and copies of documents Ex. R-2 to Ex. R-6, before he closed their evidence.
6. We have heard, the learned counsel for the parties and perused the oral and documentary evidence and evidence adduced on record by the parties, carefully, with their kind assistance.
7. At the out set, Sh. Vinod Garg, Advocate, learned counsel for the complainant, has submitted that at the time of issuance of Insurance policy under reference, the opposite parties neither subjected the complainant to medical examination nor got filled from him fresh proposal form and even 'Insurance Ombudsman', has decided that policy under reference is continuous one and renewal of earlier policy secured by the complainant. Learned counsel has argued that if policy is treated continuous policy, then the opposite parties were not justified in withholding the remaining amount paid by the complainant for his treatment in Fortis Hospital, Mohali. Learned counsel has further argued that order passed by 'Insurance Ombudsman' on the complaint filed by the complainant is not sustainable because no cogent reason has been given for withholding the remaining amount of Rs. 1,25,000/- and award of interest at quite lower rate. Learned counsel has argued that initial onus is upon the opposite parties to prove that complainant has been suffering from pre-existing disease and has concealed the material facts with malafide intention for some ulterior motive, as such, onus never shifted upon the complainant to prove otherwise. Learned counsel has argued with full vehemence that the remedy in the Act is additional remedy, as such, there is no bar for filing the complaint for payment of remaining amount after the decision given by 'Insurance Ombudsman', whose orders are recommendatory nature, not being a statutory body. Learned counsel has further argued that payment in terms of award passed by the 'Insurance Ombudsman', has been released to the complainant after approval by competent authority and signatures of the complainant had been secured on the receipt given by him which is undated in routine, as such, there is deficiency in service for which the opposite parties are liable to compensate him and to pay him compensation for mental and physical harassment and costs incurred for filing the complaint. In support of his contentions, learned counsel has placed reliance upon AIR 1999 Supreme Court 3027 United India Insurance Vs. Ajmer Singh Cotton and General mills and others- wherein complainant executed discharge voucher in full satisfaction of his claim. It was held by the Hon'ble Apex court that the plea of the complainant regarding deficiency in service is tenable if he proves that discharge voucher was got obtained from him by fraud or under coercion etc. Learned counsel has further relied upon 2008 (1) CLT 375 Ramesh Aggarwal Vs. Oriental Insurance Co. Ltd., wherein it has been held by the Hon'ble Chhattisgarh State Commission, Raipur, that there appears to be no reason as to why the complainant would have voluntarily and without any demur accepted the amount of Insurance claim as full and final settlement. It was further held that the receipt issued by the complainant also shows many columns thereof are not filled up, as such it appears to have been prepared before him by the insurer before giving the cheque and complainant had hardly no option, but to put signatures on the said document, as such, it cannot be treated as full and final settlement of his claim. Learned counsel has further placed reliance on 1991 Civil Court Cases 166 (S.C.) Life Insurance Corporation of India Vs. Smt. G.M. Channabasamma, wherein it has been held that burden of proof is upon the Insurance Corporation in case the plea is taken of misrepresentation or suppression of material facts. Learned counsel has also cited 1992 (2) CLT 458 Life Insurance Corporation of India Vs. Smt. Bimla Devi, wherein it has been held that diabetes mellatitus is not such a disease, suppression of which would be sufficient ground for repudiation of claim. There was no evidence to establish that the insured deceased knew his ailment and he was guilty of a fraudulent suppression of any material facts at the time of proposal of policy and the doctor who medically examined him was not subjected to cross-examination . It was held that onus probandi in cases of fraudulent suppression of material facts rested heavily on Life Insurance Corporation. Learned counsel has further relied upon 2005(2) CLT 37 Kamleshwari Prasad Singh Vs. National Insurance Co. Ltd.,, wherein it was held by the Hon'ble National Commission that Consumer Forum has jurisdiction to decide a matter which has already been decided by 'Insurance Ombudsman' appointed under the Redressal of Public Grievances Rules, 1998 under Sub Section (1) of Section 114 of the Insurance Act, 1938. It is also held that decision of 'Insurance Ombudsman' is not binding upon the complainant and it is subject to adjudication by the Forum constituted under the Act.
8. On the other hand, Sh. Sunder Gupta, Advocate, learned counsel for the contesting opposite parties, has argued that complainant has secured Insurance policy after expiry of previous Insurance policy and the opposite parties have imposed punishment upon the delinquent official because of his omission to secure the fresh proposal form. Learned counsel has argued that the complainant had been suffering from pre-existing heart ailment, as such, his claim has been rightly repudiated as per terms and conditions of the policy. Learned counsel has further argued that complainant himself filed complaint before 'Insurance Ombudsman', who has allowed the same to the extent of 75 percent alongwith interest and complainant has accepted the said amount without lodging any protest and has not availed further remedy open to him, as such, instant complaint being after-thought on his part and is not maintainable. In support of his contentions, learned counsel has relied upon 2007(1) CLT 150 Union of India and another Vs Som Parkash and Brothers, wherein it has been held that when a Central Statute bars the jurisdiction of other Court, then Section 3 of the Act would not be applicable. Learned counsel has further relied upon 2008(2) R.A.J. 496 National Insurance Company Limited Vs. Sehtia Shoes, wherein complainant as secured a sum of Rs. 2,72,000/- from the Insurance Company as full and final settlement. It was held by the Hon'ble Apex court that aggrieved party can file a complaint before Consumer Forum but he has to prove that he had to accept the amount on account of coercion and Consumer Forum has to decide whether discharge was voluntary or under coercion. Learned counsel has further placed reliance on 1996(2) CPR 15 The New India Assurance Co. Ltd., Vs. M/s. Geetanjali Silk House & Another, wherein it has been held that record shows that insured accepted the amount settled by the Insurance company under the policy without objection and there was no allegation that he was coerced to accept that amount, as such, there is no deficiency in service. Learned counsel has further relied upon 2004(2) CLT 117 M/s. Desk to Desk Courier & Cargo Vs. Kerala State Electronics Develolpment Corpn. Ltd., wherein it has been held by the Hon'ble National Commission that a person who signs a document containing contractual terms is normally bound by them even though he had not read them or was ignorant of their precise legal effect thereof. Learned counsel has argued that in view of the facts and proposition of law referred above, the complaint filed by the complainant, being abuse of process of the Forum, is liable to be dismissed with special costs.
9. Admittedly, the complainant secured Medi-claim Insurance policy in question covering risk of his life for the period 30-08-2006 to 29-08-2007. As per order dated 16-01-2008 passed by the 'Insurance Ombudsman', complaint filed by the complainant has been allowed treating the policy issued in the name of the complainant as continuous policy allowing 75 percent of amount of claim on the basis of letter dated 06-07-2007 Ex. C-12, written by the Insurer to Third Party Administrator, and on the ground that fresh proposal form has not been secured from the complainant and he was not medically examined afresh after lapse of previous policy secured by him. The opposite parties have been further directed to pay interest at the rate of 8 percent per annum w.e.f. 01-10-2007, till the date of payment. However, 'Insurance Ombudsman' has adjudicated the controversy on the basis of complaint made by the complainant himself. As per Section 3 of the Act, remedy before the Consumer Forum is additional remedy but the 'Insurance Ombudsman' has partly allowed the complaint in favour of the complainant. In compliance to the said order, the contesting opposite parties have paid to the complainant a sum of Rs. 4,05,517/- as full and final claim amount vide receipt Ex. R-6 and the said amount has been received by the complainant without lodging protest. In the receipt Ex. R-6, complainant has appended his signatures on the revenue stamp and his complete address has been given therein but column meant for date and place are left blank. The mere omission to fill all requisite details in appropriate columns shows casual approach of official concerned but facts borne on record do not suggest that complainant appended his signatures under coercion or distress. As per our opinion, the complainant after receiving the amount awarded by the 'Insurance Ombudsman', without lodging protest, cannot invoke the jurisdiction of this Forum for the payment of remaining amount payable under the policy and re-agitate controversy. Therefore, the complaint is bound to fail on the ground of maintainability. Had his complaint been dismissed by the 'Insurance Ombudsman', then he was entitled to maintain the complaint before this Forum if felt aggrieved, because the decision given by the 'Insurance Ombudsman' is considered recommendatory in nature. The same was the position if the complainant might have refused to accept the amount awarded by the 'Insurance Ombudsman', but after receiving the amount, he cannot be permitted to start de novo trial. We have carefully gone through the authorities relied upon by the learned counsel for the complainant on this aspect of controversy but have come to the conclusion that their facts and circumstances are not attracted to the peculiar facts and circumstances of instant case where the opposite parties have complied with the order passed by the 'Insurance Ombudsman' in letter and spirit and complainant has accepted the amount without lodging any protest, as such, ratio of judgements delivered in the authorities relied upon by the complainant in this regard, does not advance his case.
10. In the light of our above discussion, we consider it appropriate not to dewell upon the merits of the decision given by 'Insurance Ombudsman' and about controversy in dispute in the present complaint.
11. For the aforesaid reason, we dismiss the complaint and leave the parties to bear their own costs. However, the complainant is at liberty to avail the remedy open to him against the award given by 'Insurance Ombudsman', if so he desires or advice. He may seek condonation of delay of the period consumed for pursuing the complaint before this Forum from the civil court as permissible under Section 14 of the Indian Limitation Act, 1963. The copies of this order be sent to the parties, free of costs as per rules, on the subject.
    File be indexed and consigned.

Pronounced :
24-03-2009 (Pritam Singh Dhanoa)
President




(Dr. Phulinder Preet)
Member

(Amarjeet Paul)
Member

G.Lalitha Devi, W/o.G.Rajeshwar Reddy,
Age:55 years, Occ:House Hold,
R/o.Lingapur Village, Mdl:Kadam,
Dist.Adilabad.
…Complainant.

//AND//

The United India Insurance Co.Ltd.,
Rep.by its Branch Manager,
Branch Office:Adilabad. …Opp.Party.

MONDAY THE 9th DAY OF MARCH 2009.

-:ORDER:-

Order Pronounced by President:-

This complaint is filed under section 12 of C.P. Act 1986.
The brief facts of complaint are as follows:

1. The complainant’s husband Gopidi Rajeshwar Reddy on 02.04.2005 while going along the side of railway track fell accidentally and received grievous head injury and fell unconscious. He was shifted to NIMS Hospital. As he was in unconscious state and Complainant’s husband was covered by medical claim policy he was shifted to Yashodha Hospital where he was given treatment for extensive depressed fracture of left temporal region. That the treatment was given at Yashodha Hospital from 02.04.2005 to 11.04.2005. As there was no progress in the patient’s condition and unsatisfied with the treatment, her husband was shifted to Gandhi Medical Hospital, Secunderabad where he was treated from 11.04.2005 to 11.05.2005. That Complainant’s husband did not regain conscious and he was in the coma till his death. That due to the injury there was 100% disability to the deceased from the date of accident to the date of death and the death was also the resultant of the injury received in the accident. As there was no progress in the patient’s condition in spite of the treatment, the complainant’s husband was shifted to house. Later he took treatment at Nizamabad Hospital and on 24.12.2005 the doctors told that the condition was serious and there was no chance of survival as such complainant’s husband was taken to his village Lingapur and on the way he succumbed to the injuries on 24.12.2005 at about 9.00 p.m. Complainant’s husband’s brother Gopidi Srinivas Reddy gave a complaint, PS Kadam, registered a case vide Cr.No.109/2005 on 25.12.2005 and made a enquiry and referred the deceased dead for autopsy. The Medical Officer opined the death was due to head injury. The Police Kadam later gave a Final Report that the case was an accidental death due to head injury received by the deceased by falling on the railway track. The deceased Gopidi Rajeshwar Reddy was covered by Janta Personal Accident insurance policy vide Policy No.051900/47/51/11/30590/97, dt:09.03.1998 for a sum of Rs.5,00,000/- covering the period of insurance for 10 years i.e., from 09.03.1998 to 08.03.2008. That a premium of Rs.1250/- was paid by the deceased for the said purpose and he has shown the complainant his wife as the nominee. The nominee has given an application to the Opp.Party on 05.08.2006 claiming the insured amount, but the same was repudiated by the Opp.Party by its letter dt:15.05.2007 informing the complainant that as the injury as per policy condition (A) “if such injury shall within six calendar months of it occurrence be the sole and direct cause of the death of the insured” (date of accident 02.04.2005, date of expiry 24.12.2005) as such they are not admitting the claim. The Opp.Party repudiating the claim of the complainant is against the facts of the case, and against policy conditions and law.
Hence the complainant prayed this Forum to direct the Opp.Party to pay the above said amount of Rs.5,00,000/- (Rupees Five Lakhs Only) along with 12% interest from the date of accident i.e., 02.04.2005 till the date of realization.

2. The Opp.Party contested the petition and filed counter. The contents of counter is as follows:
On receiving application and premium from deceased Gopidi Rajeshwar Reddy, the Opp.Party issued a Policy No.051900/45/51/11/30590/97, dt:09.03.1998 subject to the conditions of the policy by covering the life of the deceased under Janatha Personal Accident policy for a tune of Rs.5,00,000/-. That the complainant forwarded the claim application dt:05.08.2006 in the office of the Opp.Party and on receiving the same after due enquiry the Opp.Party repudiated the claim of the complainant vide their letter dt:16.08.2006 basing on the Clause-(A) of the conditions of the policy i.e., “If such injury shall within six calendar months of it occurrence be the sole and direct cause of the death of the insured” as the deceased received the alleged injuries on 02.04.2005 and died on 24.12.2005 i.e., after 8 months 20 days from the date of receiving of injuries and same has been duly informed to the complainant but again the complainant issued the notice to the Opp.Party claiming the policy amount, so the Opp.Party issued the suitable reply notice stating that her claim was already repudiated vide their letter dt:16.08.2006 so the complainant is not at all entitled to claim the policy covered amount. The Opp.Party further submits that the Clause-(d) of the conditions of the policy are no way applicable to the case of the complainant since the deceased is no more and he has not received permanent disability as stated by the complainant. Further submit that the deceased did not die due to injuries received by him on 02.04.2005 so the complainant is not entitled to claim any compensation. The Opp.Party prayed to dismiss the petition.
3. Both parties filed Proof Affidavits.
4. On behalf of complainant Ex.A1 to A14 are marked. Ex.B1 and B2 are marked on behalf of Opp.Party.
5. Now the point for consideration is whether there are grounds to allow the petition?
6. Heard both sides. The main contention of the Opp.Party is that the deceased died 6 months after the fatal accident and if any person died 6 months after the accident they are not liable to claim any relief on the policy. In support of their contention Opp.Party mention the condition. It reads as follows:

“If such injury shall within six calendar months of it occurrence be the sole and direct cause of the death of the insured”.

In their counter Opp.Party categorically stated about the deceased (Policy Holder). Opp.Party mentioned in the counter as follows:

“As the deceased received the alleged injuries on 02.04.2005 and died on 24.12.2005 i.e., after 8 months 20 days from the date of receiving of injuries”.

7. Now it is to be seen whether Gopidi Rajeshwar Reddy deceased sustained fatal accident on 02.04.2005 at near Tarnaka railway track Secunderabad and whether he died due to head injuries after 8 months from the date of accident.
8. Admittedly deceased Rajeshwar Reddy was hale and healthy till date of accident. After he met with accident he was admitted in Nizam’s Institute of Medical Sciences on 02.04.2005 undergone treatment. From there he was shifted to Gandhi Medical College & Hospital on 11.04.2005 and he stayed there for one month as in patient.

C/E

Injuries

1.

Laceration over Right (Rt) frontal region with fracture.

2.

Fracture of both bones (BB) Right (Rt) fore arm with

abs cent pub sector.

3.

Laceration of exposing muscles of left arm proximal 1/3 medially.

Ex.A4 Gandhi Medical College & Hyderabad confirms injuries sustained by the patient as mention in Ex.A1 (NIMS). Letter given by Yashoda Hospital Ex.A2. In this case the accident was reported to Police and the S.H.O. Kadam police received complaint and registered the same as Cr.No.109/2005. The case was investigated into. During the course of investigation and after the death of Rajeshwar Reddy P.M.E was conducted on his dead body vide Ex.A14. In Ex.A10 the Doctor while answering the cause of death it is stated that death is due to head injury. Ex.A9 also shows that patient Rajeshwar Reddy was taken to Pragathi Hospital Nizamabad on 24.12.2005 around 6.00 p.m. and the patient was found in unconscious condition. Thus a perusal of Ex.A1 to A10 clearly disclose that late.Rajeshwar Reddy met with fatal accident on Tarnaka railway track and he struggled with death from 02.04.2005 to 24.12.2005.

9. There is no dispute that from his condition that policy holder is entitled to claim the policy amount if he dies within 6 months from the date of accident. In this case the patient met with accident and severe head injuries and he was dead after about 8 months. He died due to fatal head injuries on 24.12.2005. It is not the case of anybody that Rajeshwar Reddy met with another accident 6 months after the first accident and died due to those injuries. As Late. Rajeshwar Reddy was unconscious most of the time from the date of his death. It can be safely said that he died due to fatal head injuries sustained by him on 02.04.2005 at Tarnaka railway track. The main thing to be considered here is whether the deceased died due to fatal injuries sustained by him in the accident or not? Ex.A1 to A10 clearly shows that cause of death of deceased is due to head injury.
10. As seen from Ex.A8 the complainant submitted claim application and the repudiation was in the month of 15.05.2007. This complaint was filed on 10.09.2008 within the limitation.

SMT.SAVITA GARG

Vs.

THE DIRECTOR NTIONAL HEART INSTITUTE

IV (2004) CPJ 40 (SC)

The Honourable Supreme Court held that the Consumer Forums are primarily meant to provide better protection in the interest of consumer and not to short circuit the matter or to defeat the claim on technical grounds.

11. From the above discussion it is very clear that the deceased died due to head injuries sustained in the accident and we see no merits in the contention of the Opp.Parties. As the patient was in Coma, strictly speaking the technical objections of 6 months can be accident till the date of death of the patient. The above decision also can safely applied to the facts and circumstances of this case. We see no grounds to reject the claim totally and accordingly the petition is allowed in part. Treating the case as Non standard claim. We feel it reasonable to award a sum of Rs.3,75,000/- to the complainant.

12. In the result complaint is partly allowed. The Opp.Party is directed to make a payment of Rs.3,75,000/- (Rupees Three Lakhs Seventy Five thousand Only) within the period of one month from the date of pronouncement of this order, failing which the above amount will carry interest @ 12% p.a. from the date of filing of complaint and the complainant shall be at liberty to proceed against them U/S.25/27 of Consumer Protection Act 1986.

C.C. No. 124 /2008


Between


R.Kesavulu Naidu,
S/o Late R.Govindaswamy Naidu,
Hindu, aged about 70 years,
Business, residing at D.No.9-5-2,
Gandhi Road, Chittoor Town & District.
… Complainant.


And

United India Insurance Co., Ltd.,
Rep. by its Branch Manager,
Branch Office situated at D.No.10-131,
1st Floor, Gandhi Road, Chittoor.

… Opposite party.

This complaint coming on before us for final hearing on 17.03.2009 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri D.Amarendra Babu, counsel for the complainant and Sri E.Seetharamaiah Chetty, counsel for the Opposite party and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY Sri. V. Parthasaradhi Rao, B.A., L.L.B., President

ON BEHALF OF THE BENCH

This is a complaint filed by the complainant against the opposite party for recovery of an amount of Rs.6,788/- together with interest at 12% P.A., Rs.20,000/- towards compensation for mental agony and Rs.5,000/- towards cost of the complaint.

The complainant submits that he used to pay Insurance Policy amounts regularly to the opposite party for his vehicle. The opposite party collected an amount of Rs.20,812/- stating that the premium amount was increased by the Insurance Regulatory and Development Authority. Believing the words of the opposite party, he paid the enhanced premium amount to the opposite party. He submits that the Insurance Regulatory and Development Authority increased the premium amount for transport vehicles in December, 2006 against the said orders. The transport authorities and unions made several representations against increased premium amount. The Insurance Regulatory and Development Authority considered the representations and reduced premium amount and issued a circular to collect the premium amounts as revised by the parties from 01.01.2007. The complainant submits that suppressing the said orders, the opposite party collected premium of Rs.20,812/- on 01.02.2007. After knowing the revised orders of the authority, he requested the opposite party to refund the excess premium amount of Rs.6,788/- collected from him. The opposite parties stated that they would adjust the amount of Rs.6,788/- which was excessively collected from him in the next payment of the Insurance Policy Premium. On 30.01.2008 when the complainant approached the opposite party to renew his policy for further period and requested the opposite party to receive the premium amount after deducting the above said amount, but the opposite party collected Rs.14,024/- and refused to deduct the excessively collected premium amount hence he filed this complaint for recovery of the same. He is claiming damages of Rs.20,000/- for mental agony and the same may be allowed.

The opposite party filed written version alleging that collecting the premium amount and issuing policy are within the powers of their Company. Failure to refund excess amount paid to the opposite party does not come within the definition of deficiency in service. If the complainant is entitled for the alleged amount of Rs.6,788/-, he may approach proper Forum and not this Forum. The complainant is at liberty to take necessary action for recovery of the excess premium. There is no cause of action to file this complaint. The opposite party submits that on payment of premium amount policy was renewed. The complaint is without any merits and the same may be dismissed.

The points for consideration are:
1) Whether the Opposite Parties refused to adjust the exclusively collected
Premium amount of Rs.6,788/- of the previous year in the next year
Premium amount? If so whether it amounts deficiency in service?

2) Whether the complainant is entitled to recover Rs.6,788/- with interest
at 12% P.A.?

3) Whether the complainant is entitled to claim damages of Rs.20,000/- for
mental agony?

4) To what result?


The complainant filed Chief Affidavit of Pw.1 and marked Ex.A1 to A4. Ex.A1 is the copy of Policy dated 01.02.2007, Ex.A2 is the copy of proceedings of Insurance Regulatory and Development Authority dated 23.01.2007, Ex.A3 is the copy of Insurance Policy dated 30.01.2008, Ex.A4 is the requisition dated 14.02.2008.

The opposite party filed Chief Affidavit of Rw.1.

Points 1 to 3 :-
The only dispute in this case is that the opposite parties collected premium amount of Rs.20,812/- on 01.02.2007 and later reduced it to old rate of premium amount of Rs.14,024/- and they have to return the exclusively collected amount of Rs.6,788/- to the complainant but the opposite parties did not refund the amount nor adjusted it in the premium amount of the next year.

Pw.1 is the complainant himself he stated in similar lines as averred in the complaint. Similarly the opposite party stated as mentioned in their written version. The learned counsel for the complainant contends that the Insurance Regulatory and Development Authority increased the premium amount for transport vehicles in December, 2006 and he paid Rs.20,812/- towards premium amount for the period from 02.02.2007 to 01.02.2008. Later the transport authorities and unions gave representations to the Insurance Regulatory and Development Authority to reduce the Premium amount. Accordingly the authority reduced the premium amount to old rate of premium and issued circular Ex.A2 to that effect. When the complainant approached the opposite party to refund the exclusively collected premium amount of Rs.6,788/-, the opposite parties assured that they would adjust the amount in the payment of premium amount of the next year. In the next year on 30.01.2008 the complainant asked the opposite party to renew his policy for further period and requested to receive the premium after deducting the Previous excessively paid amount. But the opposite party did not choose to comply with the requests of the complainant and collected an amount of Rs.14,024/- Therefore the complainant filed this complaint for recovery of an amount of Rs.6,788/- exclusively collected premium amount.

The opposite party stated in his Chief Affidavit that collecting premium and issuing policy are within the powers of their company. If the complainant is entitled for refund of the alleged premium amount of Rs.6,788/- he may approach proper Forum but not this Forum. The failure to refund the alleged excess amount paid by the complainant does not come within the definition of deficiency in service as alleged by the complainant. There is no cause of action and the complaint may be dismissed.

Pw.1 stated that the Insurance Regulatory and Development Authority considered the representations given by the transport unions and reduced the premium amount to old rate of premium and issued circular Ex.A2 to that effect. He further stated that after representing the premium amount he approached the opposite party to renew his policy and receive the premium amount of the next year, after deducting the amount which was already collected for the earlier period. But the opposite party did not choose to adjust the already collected excess amount and collected an amount of Rs.14,024/- towards the next premium. Ex.A2 dated 23.01.2007 is the order of Insurance Regulatory and Development Authority. It speaks that the Authority revised the rate of premium as shown in the schedule of its circular with effect from 01.02.2007. The Regulatory Authority issued the Circular on 23.01.2007. Ex.A1 is the Insurance Policy for the period from 02.02.2007 to 01.02.2008. It shows that the opposite party collected premium amount of Rs.20,812/-. Ex.A3 is receipt for Rs.14,024/- of the premium paid on 30.01.2008 for the next year i.e. from 02.02.2007 to 01.02.2003 towards transport vehicle of the complainant. Ex.A2 is the Insurance Policy which reveals that the opposite party collected Rs.20,812/- premium amount on 01.02.2007 against the orders of authority. The authority issue orders on 23.01.2007 itself announcing the revised rates of premium. The complainant made out the case that the opposite parties failed to obey the orders of Insurance Regulatory and Development Authority, Ex.A2 and collected excess premium amount of Rs.6,788/- and the collection of excess premium amount contrary to the direction of the authority is unfair trade practice and it amounts deficiency in service. Therefore the opposite parties are directed to pay the amount of Rs.6,788/- exclusively to the complainant.
Points 1 to 3 are answered in favour of the complainant.

Point 4 :-

In the result the complaint is allowed for Rs.6,788/- (Rupees six thousand seven hundred and eighty eight only) and the opposite parties are directed to pay the amount within 6 weeks from the date of this order and an amount of Rs.1,500/- (Rupees one thousand five hundred only) are allowed towards costs of the complaint.

C.C. No. 86 /2008


Between


L. Venugopal S/o K.T.Lokanadhan, aged 48 years,
Prop: M/s Sri Venkateswara Exports,
No. 490, 4th Cross, H.M.T.Lay out, R.T.Nagar,
80ft., Road, Bangalore, Karnataka.
… Complainant.


And

1.M/s United India Insurance Company Limited,
Rep., by its Divisional Manager, Divisional
Office, having its office at Gandhi Road Exten.,
Chittoor.

2.M/s United India Insurance Company Limited,
Micro Office, Kuppam, rep., by its Manager,
Dr.No. 8-64, Vasudeva Road, Opp:Grameen Bank,
Kuppam, Chittoor District.

… Opposite Parties

This complaint coming on before us for final hearing on 05.03.2009 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri S.Vijaya Bhaskar Rao, counsel for the complainant, and Sri K.Suresh counsel for opposite parties 1 & 2 and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY SRI. V. PARTHASARADHI RAO, B.A., L.L.B., President
ON BEHALF OF THE BENCH


This is a complaint filed by the complainant U/Sec. 12 of Consumer Protection Act against the opposite parties for recovery of Insurance amount of Rs. 10,00,000/- and Rs. 2,00,000/- towards damages.
The complainant submits that he purchased a car SKODA OCTAVIA 1.8 bearing No. KA 04 MJ 1331 and the same was insured with the opposite parties under policy No. 051681/31/05/00000502. On 26.08.2006 at about 2 a.m his car met with an accident in the limits of Sadasiva Nagar Traffic Police Station, Bangalore City. Due to the accident the driver of the car died and other inmates of the car sustained injuries. The accident was registered in Crime No. 89/06 U/Sec. 304-A I.PC by Traffic Police, Sadasiva Nagar, Bangalore City. Immediately after the accident he intimated the same to the opposite party appointed a surveyor for assessing the damages of the car. The damaged car was shifted the garage TAFF ACCESS LIMITED, St.Marks Road, Bangalore who estimated the damages as Rs. 18,62,009/-. The garage dealer collects garage rent of Rs. 250/- per day. The complainant submitted a claim form to the opposite parties in the month of September, 2006 and requested to settle the claim. As the opposite parties did not settle the claim, he gave legal notice dt. 05.03.2008 requesting the opposite parties to settle this claim. But the opposite parties did not give any response to his notice. Since the opposite parties have not settled the claim of the complainant, it amounts deficiency in service and hence he filed this complaint for recovery of the Insurance amount of Rs. 10,00,000/- and Rs. 2,00,000/- towards damages. The complaint may be allowed.

The 2nd opposite party filed Written Version alleging that the complainant insured his car SKODA OCTAVIA 1.8 bearing No. KA 04 MJ 1331 with the 2nd opposite party for a sum of Rs. 10,00,000/- and the same is valid from 11.02.2006 to 10.02.2007. The policy was in force at the time of the alleged accident, but the liability of the 2nd opposite party is restricted by the terms and conditions stipulated in the policy. As per the terms of the policy the complainant being the owner of the vehicle shall engage the driver, who shall possess a valid and effective driving license to drive the vehicle in question. The insured has to take steps that the insured vehicle should not be driven by the driver under intoxication, if for any reason the owner of the vehicle violates the terms and conditions of the policy, the opposite parties are not liable to indemnify the loss occurred to him.

This opposite party submits that after receiving information about the accident it has sent a surveyor for initial assessment. The surveyor assessed the loss of the damaged vehicle as Rs. 11,66,263/-, since the same is higher than I.D.V of Rs. 10,00,000/-, he suggested other amounts of settlement by way of total loss basis liability of Rs. 9,99,000/- and salvage loss basis of Rs. 8,24,000/- after taking wreck value of Rs. 1,75,000/-. The complainant has to carry out the repairs to the car and then approach the opposite parties/ company for settlement of the claim. This was not done by him. This opposite party came to know that the son of the complainant drove the vehicle at the time of accident under intoxication and the accident was occurred due to rash and negligent driving of the son of the complainant. The F.I.R confirms the same, as such the complainant violated the terms and conditions of the policy, he is not entitled to any claim. Hence complaint may be dismissed.
The 1st opposite party adopted the Written Version of the 2nd opposite party.
The points for consideration are :
1.Whether the opposite parties refused to settle the claim of the complainant without valid reasons ? If so, whether they committed deficiency in service ?

2.Whether the complainant is entitled to recover Rs. 10,00,000/- ?

3.Whether the complainant is entitled to claim damages of Rs. 2,00,000/- for deficiency in service ?

4.To what relief ?


The complainant filed Chief Affidavit of PW-1 and marked Ex.A1 to A15. The opposite parties filed Chief Affidavit of RW-1 and marked Ex.B1 to B6.

Points No.1 to 3 :-
It is an admitted fact that on 26.08.2006 at 2.00 a.m the complainant car SKODA OCTAVIA 1.8 bearing No. KA 04 MJ 1331 met with an accident in the limits of Sadasiva Nagar Traffic Police Station Limits, Bangalore City. The traffic police of Sadasiva Nagar Registered a case in Crime No.89/06 U/Sec. 304-A I.P.C. Ex.A3 is the F.I.R with regard to accident. Ex.A1 is the Registration Certificate of the car. Ex.A2 is the Insurance Policy. Ex.A4 is the Charge Sheet and Ex.A5 is the Motor Vehicle’s Accident Report.

It is also an admitted fact that the complainant intimated the accident to the opposite parties and the opposite parties appointed a surveyor for assessing damages of the car. The surveyor estimated the damages as Rs. 11,66,263/- as per Surveyors Report Ex.B1.

PW-1 is the complainant, he stated that on 26.08.2006 at 2.00 a.m his car met with an accident and the said fact was intimated to the opposite parties. PW-1 also stated that he submitted a claim form to the opposite parties and requested them to settle his claim, but the opposite parties did not settle his claim. He sent the damaged vehicle to the garage and it remained in the garage from the date of accident till now. PW-1 further stated that as per the policy conditions the opposite parties is liable to pay Rs. 10,00,000/-, but the opposite parties have not settle his claim.

RW-1 is the Assistant Divisional Manager of 2nd opposite party, he stated that the complainant insured his SKODA OCTAVIA 1.8 bearing No. KA 04 MJ 1331, with the 2nd opposite party and obtained Insurance Policy for a sum of Rs.10,00,000/-. RW-1 further stated that the Insurance company came to know that the son of the complainant drove the car at the time of the accident under intoxication and the accident occurred due to rash and negligent driving of the son of the complainant. Ex.A3 is the copy of F.I.R and it confirms the same. RW-1 further stated that the complainant violated the terms and conditions of the policy and he is not entitled for any claim.

The learned counsel for the opposite parties contends that as per terms and conditions of the Insurance Policy Ex.A2, the ensure has to insured that the vehicle should not be driven by the driver under intoxication. If he violates the terms and conditions of the policy, the opposite party is not liable to indemnify him for the loss occurred to him. He also contends that in this case the F.I.R Ex.A3 revealed that the son of the complainant drove the vehicle under intoxication and the complainant violated the terms and conditions of the policy Ex.A2 and he is not entitled to claim the Insurance amount.

The learned counsel for the complainant contends that the F.I.R Ex.A3 was given by third party without knowing the facts. As per Postmortem Certificate Ex.A11 and statement of eye witnesses Ex.A12 to A15, the driver of the vehicle did not consume liquor. He further contends that the F.I.R Ex.A3 is not substancial peace of evidence and it can not be the basis to decide the culpability of assailants in this case. I agree with the contention of the learned counsel for the complainant that the F.I.R Ex.A3 is not the substancial peace of evidence. Further it was given by a third party who did not see the accident. One Venkataramana swamy gave report Ex.A3 on 26.08.2006 in the morning after the accident was over stating that he learnt, on 26.08.2006 at about 2 a.m in the mid night the deceased along with his friends Prakash, Avinash, Preetham and Raghu @ Raghavendra all of them are proceeding in the car SKODA OCTAVIA 1.8 bearing No. KA 04 MJ 1331 after consuming the liquor and dashed against the stone compound of the Palace Grounds near Gayathri Gate. Therefore Ex.A5 the statement of D.Venkataramana swamy is hear say and the F.I.R Ex.A3 was not given by any eye witness. They are not basis to decide whether the deceased driver consumed liquor or not? In this regard the learned counsel for the complainant relied on the decision reported in 1996 – Crl.L.J - (S.C) – 3199 – State of Madhya Pradesh Vs. Surbhan wherein their lordships held as follows :-
It is contended that the F.I.R mentions the names of above persons who were specifically mentioned and it lends corroboration to the evidence of PW.2. We find no substance in this contention. The F.I.R cannot be used as substantive evidence or corroborating a statement of third party, i.e P.W.2. FIR cannot be used to corroborate the evidence of PW.2. It can be used either to corroborate or for contradiction of its maker.

In the above case their lordships held that the F.I.R can not be used as substantive evidence or corroborating statement of third party i.e PW-2. Therefore their lordships held that the F.I.R will be used either to corroborate or contradict its maker. In this case the person D.Venkataramana swamy, who gave F.I.R Ex.A3 is not even the eye witness to the occurrence, he did not know how the accident occurred. After the accident was over on the next day morning on 26.08.2006 he saw the dead body of a male lying on the stretcher of the mortuary of M/s Ramaiah Hospital and then he gave complaint. Further he stated that the deceased along with his friends were driving the car after consuming liquor and dashed against the compound wall of the Pace grounds near Gayathri Gate. The said Venkataramana swamy gave his statement Ex.B5 before Police in the same lines that he is not an eye witness to the incident and his statement is hear say and it can not be relied on. Further the eye witnesses who traveled along with the deceased gave statements Ex.A12, 14 and 15. They stated that the deceased Sathish Kumar did not consume liquor. Therefore there is no convincing and satisfactory evidence that the deceased Sathish Kumar consumed liquor.

The learned counsel for the opposite parties contends that the complainant in this case managed the Police and obtained such statements Ex.A12, 14 & 15 contrary to the contents in F.I.R Ex.A3. He further contends that when the F.I.R Ex.A3 speaks that the deceased consumed liquor and the person who gave F.I.R made a statement Ex.B5 before Police to that effect and it should be relied on. He further contends that even if nothing was mentioned about the smell of alcohol in the Postmortem Report Ex.A11, it can not disprove the F.I.R Ex.A3. In this regard he relied on the decision reported in III(2005) CPJ – 247 – New India Assurance Co., Ltd., Vs Maria Claude Borthwisk & another wherein their lordships held as follows :-
……..It is not possible nor it can be expected of the Insurance Company to establish the same since after the accident the man was taken to the hospital at Neyveli and shifted to Madras hospital where he died. The intestinal contents or viscera of the deceased sere not preserved. Therefore, it may not be possible to establish or adduce any positive evidence but the fact remains that the person who rode on the bike with the deceased on that day as a pillion rider has clearly given a statement before the Police wherein he has stated clearly that they consumed liquor namely beer and whisky before proceeding further on the motor cycle and after consumption of liquor the motor cycle driven by the deceased and while they were passing near the water tank, they were hit by a lorry. It is a statement made by the pillion rider voluntarily before the police. It can definitely be relied upon for the purpose of this case. ……

The Lower Forum has referred to the post-mortem report. The accident had taken place on 7.8.1992. He was taken to Madras on 8.8.1992. Probably he died on the same day and the post-mortem was done on 10.8.1992. Therefore, at the time of conducting post-mortem definitely the odour of alcohol cannot linger. The doctor has not mentioned about the preservation of viscera for chemical analysis. The mere fact that nothing is mentioned about the smell of alcohol in the post-mortem report or in the accident report cannot dispute the case of the opposite party. There is no motive for the pillion rider”………….

The facts of the above case are not applicable to the facts of the present case. In the above case their lordships held that the person who rode on the bike with the deceased on that day as a pillion rider has clearly given statement before police, they consumed liquor namely beer and whisky before proceeding further on the motor cycle and after consumption of liquor the motor cycle driven by the deceased, hit a lorry. Their lordships further stated that the accident took place on 07.08.1992 and the postmortem was done on 10.08.1992, therefore at the time of conducting Postmortem definitely the odour of alcohol can not linger. The mere fact nothing is mentioned about the smell of alcohol in the postmortem report can not dispute the case of the opposite party.

In this case the person who gave F.I.R Ex.A3 did not see the accident and his statement is hear say, he is a third person unknown to the accident. Further the Postmortem over the dead body of the deceased was conducted, immediately after the accident on the morning at 9.30 a.m itself. The Postmortem certificate speaks smells are common, mucous is also common. On the other, the witnesses who travelled along with the deceased gave statements Ex.A12, 14 & 15 that the deceased did not consume liquor. The statement of eye witnesses coupled with the Postmortem Report Ex.A11 shows that there is no convincing evidence that the deceased consume liquor at the time of the accident. Therefore the facts of the above case are not applicable to the facts of the present case.

The learned counsel for the opposite parties further submits that the Inquest Report Ex.B5 reads that the deceased along with his friends drove the car after consuming liquor. The complainant managed the police and obtained statements Ex.A12, 14 and 15 and they can not be relied on. The observation in the Inquest Ex.B5 is nothing but what is stated in the F.I.R Ex.A3. Such an inquest report has no evidentiary value with regard to deceased consuming alcohol. On the basis of hear say statement Ex.A3 and B5 this Forum is unable to give any weight to the arguments of the learned counsel for the opposite parties that the complainant managed the police and obtained the statements Ex.A12, 14 and 15. On assessing the entire material on record, the statement of D.Venkataramana Swamy Ex.B5 is hear say and it can not be relied on. So there is no convincing evidence that the accident occurred due to the driver driving the vehicle under intoxication. Therefore I am not convinced with the arguments of the learned counsel for the opposite parties on this point.

The opposite parties refusing to settle the claim of the complainant is not on reasonable grounds and it amounts deficiency in service. Hence the complainant is entitled to claim the Insurance amount.

The learned counsel for the opposite parties contends that the complainant did not carry the repairs of the car, he has to carry out the repairs and then approach the opposite parties for settlement of the claim under total loss basis liability or otherwise. Since the complainant did not get his vehicle repaired the claim is not settled. The complainant is at fault. I am unable to agree with the contention of the learned counsel for the opposite parties. When the vehicle was totally damaged, where is the question of getting it repaired. The Surveyors Report Ex.B1 itself shows that the vehicle was totally damaged, he assessed the liability of repair basis would be around Rs. 11,66,263/- other than the check up items, which is exceeding I.D.V. Therefore the surveyor suggested the settlement on total loss basis. He assessed the liability on total loss basis of Rs. 9,99,000/-, he also assessed liability on salvage loss basis as Rs. 8,24,000/-. So when the vehicle is totally damaged the opposite parties can not say that the complainant did not get the vehicle repaired and he is at fault. The vehicle is not useful even if the repairs to the damaged vehicle are undertaken, it is beyond the Insurance amount of Rs. 10,00,000/-. In such circumstances this Forum reasonably assess the loss caused to the complainant on salvage loss basis as Rs. 8,24,000/- as per surveyor’s report Ex.B1.
Points 1 to 3 are answered in favour of the complainant.


Point No. 4:-
In the result complaint is allowed for Rs. 8,24,000/- (Rupees eight lakhs and twenty four thousands only). Thus the complaint is allowed with costs of Rs. 1,500/- (Rupees one thousand and five hundred only). The opposite parties are jointly and severally liable to pay the said amount within 6 weeks from the date of this order, failing which it carries interest at 9% p.a.

By Smt. Saji Mathew, Member:

The gist of the case is as follows.

The Complainant has bought two cows for Rs. 25,000/- financed by Wayanad Survaseva Mandalam. As per the direction of the Manager, Survaseva Mandalam the complainant has insured the cows with National Insurance Company. One of the cows died due to disease. The cow was treated by the Dr. Abdul Karim, Veterinary Surgeon, Meenangadi. The death was informed to the Opposite Party and post-mortem was conducted. The claim was preferred with all documents. But the Opposite Party refused to pay. The Complainant has spent about Rs.5,000/- for insuring the cow and for the treatment. These cows were the only means for living of the Complainant's family. So the complainant prays for an order remedying her grievances and loss.

2.The Opposite Party has filed version and stated that the Complainant had violated policy conditions 4,5,6,7 and 8 and hence that Opposite party has no liability to pay the insurance amount. As per the version no notice was given to the Opposite party regarding the illness of the cow and no proper treatment was given to the cow. Death of the cow was not informed in time. The opposite parties also allege that the doctor's certificate is fabricated. So the Opposite Party prays for an order dismissing the complaint. The Complainant was examined as PW1 and documents were marked as Ext. A1 to A10. Opposite party's witness was examined as OPW1 and document was marked as Ext.B1.

4. The matters to be considered are :-

1. Whether there is any deficiency in service on the part of the Opposite parties?
2. Whether the Complainant is entitled for any relief ?

5. Point No.1 The Opposite party's main allegation is that the Complainant had not complied with the conditions of policy. On perusing the Ext.A2 the policy, only 2 conditions are stated in it. One is that the ear tag should be surrendered. The other conditions is that the company is not liable to pay the claim in the event of death of insured animal due to disease occurring within 15 days from the commencement of risk. In this case, the Opposite party has no allegation regarding these two conditions. Instead they have produced another set of conditions marked as Ext. B2(a). Ext.B2(a) shows that these conditions belong to another policy.

6. Even though OPW1 affirms that the conditions are similar in all cattle insurance policies, there is no evidence to show that these conditions are put to the notice and consent of the complainant.

7.Another allegation of Opposite Party is that the certificate issued by the doctor is fabricated and not correct. They also allege that no proper treatment is given to the cow. The doctor was examined as OPW1 and OPW1 affirms that he has treated the cow from 6.10.2006 to 10.10.2006 by visiting the Complainant's house. From 11.10.2006 to 21.10.2006 he prescribed medicine for the cow as per the information given by the Complainant. So there is no base in the allegation that the certificate Ext.B1, in fabricated and false. Here in this case, it is also noted that the claim is not repudiated. The Opposite party is just raising objection in allowing the claim and delaying the settlement of claim. This is deficiency in service on the part of the Opposite parties and Point No.1 is found in favour of Complainant.

8. Point No.2 As per the policy Ext.B2,the insured amount is Rs. 10,000/-. The doctor's valuation of the cow also is at Rs.10,000/- (Ext.A8). The Complainant is found to be entitled to get this amount of Rs. 10,000/-.

Hence the Opposite party is directed to pay Rs. 10,000/- on the insurance claim to the Complainant within one month from the receipt of this order. The Opposite party is also directed to pay interest at the rate of 10% on the ordered amount from the date of complaint till payment.

REASONS POINTS 1&2: Complainant had taken an insurance policy for its employees from M/s. National Insurance Company, till 31-3-2006 subsequently, it took insurance policy from the respondent-2 for the year 2006-2007. These points are not in dispute. As per the complainant it paid premium amount to respondent-1 on 31-3-06 through DD as such that policy shall continue w.e.f. 1-4-2006 but, it has commenced from 3-5-2006 by which its employees have incurred loss and it is not beneficial to it. How far such contention is acceptable is the material point for consideration.

In para no.5 of the complaint it is pleaded that, during the course of discussion the respondent-1 assured the complainant that, their earlier policy with M/s. National Insurance Co. will stand renewed w.e.f. 1-4-2006 itself and its employees will get the benefits from that date. In support of such contention, no document is produced by complainant to show that, respondent-2 agreed to renew or continue the earlier policy w.e.f. 1-4-2006. In the absence of acceptable material, such contention of the complainant that, since it paid premium amount on 31-3-2006 to respondent-1 as such policy shall continue w.e.f. 1-4-2006 and not from 3-4-2006, cannot be accepted. It was rightly argued for respondent-2 that, National Insurance Co and respondent-2 company are different entities. Even no material is produced by complainant to show that, an insured having insurance policy with one insurance company can continue or renew that policy with another insurance company and its effect will be the same.

The complainant may have had an insurance policy with National Insurance Co. till 31-3-2006. Even complainant may have paid premium amount to respondent-1 on 31-3-2006 but there is no clear evidence before the forum to state that, that amount had reached respondent-2 on that day or immediately, to give effect of the policy w.e.f.1-4-2006. Respondent-1 may have assured the complainant to get renewal or continuity of the insurance policy with National Insurance Company, but whether respondent-2 had agreed for it, there is no material before the forum. It was vehemently contended for respondent-2 that, it received premium amount only on 3-5-2006 even that amount was short by some amount which was paid on 5-5-2006, as such it gave effect of insurance policy from 3-5-2006.

Even complainant has not produced any material before the forum to state that R1 had knowledge about receipt of premium amount through DD by the respondent-1to have continuity of the policy w.e.f. 1-4-2006. On the other, when respondent-2 has received that premium amount in the month of May 2006 as such from that date of receipt of premium amount by it, it has given effect of insurance policy from that date, so no illegality is noticed with the respondent-2. Even neither complainant nor respondent-1 have produced any material to show that, respondent-1 had paid some premium amount in advance to the respondent-2 to have effect of insurance policy immediately.

Referring to Sec.64 (V) (B) of Insurance Act of 1938 the learned counsel for respondent-2 submitted that, no risk to be assumed unless premium was received in advance. The complainant has produced a letter dtd.19-2-2009 written to other respondents stating, it had requested those respondents several times to make the policy effective from 1-4-2006 as the amount was paid and also made request to shift policy from National Insurance Company to the company of respondent-2. Mere writing such letter by respondent-1 to respondent-2 by itself cannot be said the policy was continued from 1-4-2006 and it is a renewal of the earlier policy. Collection of balance premium by the respondent-2 on 5-5-2006 is not disputed. It means the respondent-2 received full insurance policy amount on 5-5-2006. Even if it is held that, substantial premium amount was paid earlier to 5-5-2006 even then since that amount had reached R2 only on 3-5-2006 insurance policy cannot be said to have come into effect from 1-4-2006 and not from 3-5-2006.

The complainant has further contended that, one Smt.Sangeetha w/o.Shivaji Chavvan was hospitalized and she is the wife of Sri.Srivaji Chavvan one of employees under Synd Arogya Group Mediclaim and claim petition was filed on 9-9-2006 for Rs.8001/- but it has been repudiated by the respondent-3 stating her case comes under Exclusion Clause 4.1 of the policy, So such refusal is not correct. As already stated, National Insurance Company and respondent-2 are independent and different entities as such if any premium paid to respondent-2 cannot be said to be the premium amount for continuity of earlier policy with National Insurance Company.

The respondent-2 has specifically contended that, the policy in question issued by it was for the first time as such under the policy in question for the first year sinusitis is excluded irrespective of the date of commitment of the policy. Exclusion Clause 4.1 of the policy reads as under “ All diseases/injuries are pre existing when the cover incepts for the first time for the purpose of applying this condition, the date of inception of initial medical policy taken from any of the Indian Insurance companies shall be taken provided the renewals have continuous and without any break” In the instant case, the insurance policy of National Insurance Company is neither continued nor renewed with that insurance company and it being separate entity continuity or renewal of the policy cannot be claimed by the complainant from respondent-2. Moreover, it is not proved that, insurance premium was paid to respondent-2 on 31-3-2006 to have its effect from that day.
In view of these reasons as per exclusion clause 4.1 of the policy Smt.Sangeeta W/o.Shivaji Chavvan will not be entitled to claim mediclaim amount. In view of these reasons deficiency in service is not noticed on the part of respondents as such the complaint is liable to be dismissed. Hence points 1&2 are answered in Negative. Point.3: In view of the finding given on points 1 and 2 proceeded to pass the following

O R D E R


The complaint is dismissed. However the parties are left with their own costs. (Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 26th day of March 2009)

COMPLAINANTS 1. Mr.T.J.Kuriakose,S/o T.K.Joseph,Aged about 58 years.2.Mrs.Annie Kuriakose,W/o Mr.T.J.Kuriakose,Aged about 52 years.Both are residing at No.301,MARIA KRIPA,12/2, Richards Town,Bangalore – 560 084.Advocate – Sri.B.Sudeendranath

V/s.


OPPOSITE PARTIES

1. M/s.United India Insurance Company Ltd.,Divisional Office – III,No.24, Classic Building,I Floor, Richmond Road,Bangalore – 560 025.2.

M/s.Medi Assist India Pvt. Ltd.,No.49, Shilpa Vidya,3rd Floor, Sarakki Indl. Layout1st Main Road, JP Nagar 3rd Stage,Bangalore – 560 078Advocate – Sri.B.S.Raghu Prasad

O R D E R

This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to settle the insurance claim for Rs.12,294/- along with interest and pay a compensation of Rs.1,00,000/- on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant availed the services of OP.1 who covered the insurance for Rs.3,00,000/-, it was valid from 01.02.2007 to 31.01.2008. OP.2 acted as third party administrator. On 13.09.2007 complainant No.2 the wife of complainant No.1 who is the beneficiary under the policy felt giddiness and severe omitting. Hence she immediately went to Santhosh Hospital for treatment, she was administered medicine and advised for MRI scanning. Complainant No.2 felt relief hence returned back to home. But again on 15.09.2007 the said problem aggravated. She actually collapsed in the toilet, immediately she was taken to St. Johns Medical College Hospital for treatment. The doctors who examined her subjected her to various diagnostic tests in order to come to the conclusion with regard to the real suffering and ailment. She was admitted in the hospital for observation and treatment, ultimately she was discharged on 18.09.2007. On the perusal of the tests report complaint of giddiness and neck pain radiating to left upper limb is due to vertigo. Hence they gave her the treatment for the said ailment. She was also subjected for MRI. Complainant spent nearly Rs.12,294/- towards the said treatment. After the discharge they made claim to OP but unfortunately OP repudiated the said claim on the ground that the expenses incurred by the complainant is primarily for investigation and not for the treatment of any existing disease.

Under exclusion clause 4.10 OP is not liable to pay the investigation charges hence they repudiated the said claim. Complainant felt that the said repudiation is unjust and improper. She caused the notice to the OP. Again there was no response. Thus she felt deficiency in service. Accordingly she is advised to file this complaint and sought for the reliefs.


2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant was admitted to hospital for only clinical tests and after the said tests it was diagnosed that she suffering from Vertigo. The exclusion clause of the policy at the clause 4.10 it is specifically made clear that the investigation expenses are not covered under the policy, hence they repudiated the claim. According to OP second complainant did not under go any treatment for any kind of disease and ailment but she was admitted only for investigation purpose. All the routine tests are done. On thorough verification of the discharge summary and other hospital records and after due application of the mind OP repudiated the claim. There is no deficiency in service on the part of the OP. Complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.

3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.

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

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


R E A S O N S


6. At the outset it is not at dispute that the complainant No.1 being the Can Card holder took the Can Mediclaim Insurance Policy from OP.1 covering himself and wife complainant No.2. Risk covered is for Rs.3,00,000/-. The said policy was in force from 01.02.2007 to 31.01.2008. OP.2 is a third party administrator. Of course OP has not disputed the fact of issuance of the mediclaim insurance. Now it is the grievance of the complainant that on 13.09.2007 complainant No.2 felt giddiness and severe omitting, hence she went to Santhosh Hospital.
She was administered medicine and advised for MRI Scanning. As she felt relief she returned home. If complainant had any ulterior motive they would have got admitted in the hospital but they are not greedy to make claim of unwanted expenses. The fairness of the complainant has to be appreciated.


7. It is further contended by the complainant that on 15.09.2007 again complainant No.2 felt severe omitting and giddiness. Actually she collapsed in the toilet hence she was taken to St. Johns Medical College Hospital for treatment. The hospital records are produced. In order to know the real aliment and the disease which has resulted in the sudden collapse of the complainant No.2 she was subjected to various diagnostic tests and examinations including that of MRI Scan. It is a matter of prudence that when unconscious person who suddenly collapsed in the toilet was brought to the hospital to know the real cause the patient will be certainly subjected to various tests and examinations.
Unless it is done, no such treatment can be given because what is the kind of disease and ailment patient is suffering is unknown. Under such circumstances we don’t find force in the allegations of the OP that the expenses incurred by the complainant are only towards investigation and not for the treatment to the disease which she was suffering.


8. On going through the test report and investigation and MRI ultimately it was diagnosed that complainant No.2 is suffering from Vertigo which is the real cause for giddiness and neck pain radiating to left upper limb. Accordingly the medicine was administered. Hence for this simple reason we say that the complainant took the treatment for ailment and incurred the expenses of Rs.12,294/-. The supporting hospital records, documents and bills are produced including the insurance policy. With all that unfortunately OP repudiated the claim of the complainant on a technical reason and grounds.


9. We are of the view that the said repudiation is unjust and improper without due application of the mind. Naturally complainant for no fault of her is made to suffer both mental agony and financial loss. The history discloses that she was treated in the past for cervical spondylosis?. So she did suffer from certain ailment. Accordingly she was treated and discharged.

10. We are satisfied that the complainant is able to prove the deficiency in service on the part of the OP. Hence she is entitled for the relief. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard her sworn testimony. As against this unimpeachable evidence of the complainant the defence set out by the OP appears to be defence for defence sake just to shirk their responsibility and obligation. The approach of the OP does not appear to be fair. The hostile attitude of the OP must have naturally caused both mental agony and financial loss to the complainants. Under such circumstances they are entitled for the relief claimed. Accordingly we answer point Nos.1 & 2 and proceed to pass the following:

O R D E R

The complaint is allowed in part. OP is directed to reimburse the medical expenses of Rs.12,294/- and pay a litigation cost of Rs.1,000/-. This order is to be complied within four weeks from the date of its communication. Failing in which complainant is entitled to claim interest at the rate of 12% p.a on Rs.12,294/- from the date of repudiation till realization and also entitled for litigation cost.

Consumer Complaint No. 344/2007
Date of presentation: 14.11.2007
Date of decision: 25.4.2009

Dhian Chand son of Sh. Kali Dass, resident of VPO Oach Laharu, Tehsil Jaisinghpur, District Kangra (HP)
Complainant
Versus

United India Insurance Company Limited through its Branch Manager at Near Red Cross building, Kachhari Add, Dharamshala (HP)

Opposite parties
Complaint under section 12 of the Consumer Protection Act, 1986

PRESIDENT: A.S.JASWAL
MEMBERS: PARDEEP DOGRA & PABNA SHARMA

For the complainant: Sh. Vinod Kumar Jaggi, Advocate
For Opposite party Sh. Neeraj Bhatnagar, Advocate


A.S.JASWAL, PRESIDENT (ORAL)
ORDER/

In nut-shell the case of the complainant is that he had insured his cattle (hereinafter referred to as cattle), under Cattle Insurance Policy with the opposite party in the sum of Rs.5000/- for a period of three years on dated 30.3.2007. A premium of Rs.572/- had been paid to the opposite party. It is asserted that at the time of insuring the cattle, the opposite party had not affixed the tag on its ear and had assured that it would provide the same within 5-6 days. It is asserted that the said cattle fell down due to sudden skidding in the cow-shed and had died during the subsistence of the insurance Policy despite best efforts made by him. It is pleaded that after completing the necessary formalities, he submitted his claim papers to the opposite parties, but it repudiated the same on the ground of “No Tag No Claim”. In this manner, the opposite party has committed deficiency in service.


2. The opposite party, by filing its reply, has contested the claim of the complainant by asserting that there is no deficiency in service on its part, as the complainant had committed breach of terms and conditions of the Insurance Policy. It is asserted that the cattle was not having tag in the ear at the relevant time and that it was obligatory upon the insured to put the tag in the ear of the insured cattle. It is further asserted that the claim of the complainant had been rightly repudiated by the answering opposite party on receipt of Investigation report of Shri Shanti Saroop Sharma. Thus, there is no deficiency in service on the part of the opposite party.


3. Both the parties adduced evidence by way of affidavits and annexures in support of their contention. After hearing the learned counsel for the parties, the following points arise for determination:-
1. Whether the O.P committed deficiency in service?
2. Final order

5. For the reasons to be recorded hereinafter while discussing points for determination, our findings on the aforesaid points are as under:-
Point No.1: Yes
Final order: The complaint is partly allowed per operative part of the order
REASONS FOR FINDINGS
POINT No.1


6. Besides having gone through the written arguments filed by the complainant, we have also heard the contentions advanced on behalf of the opposite parties. In the written arguments, the complainant has specifically mentioned that at the time of insuring the cattle, the opposite party had not put the tag on its ear. However, at that time it had been assured that the tag was to be supplied within 5/6 days. As per the complainant, the act of the opposite party in not settling his genuine claim tantamount to deficiency in service and that he is entitled for the insured amount as well as other reliefs claimed by him.


7. On the other hand, learned counsel, appearing on behalf of the opposite party has submitted that since there was no tag on the cattle, the opposite party rightly repudiated the claim of the complainant on the ground of “No Tag No Claim”. In these circumstances, there is no deficiency on the part of the opposite party, who, on having got the information regarding the death of cattle, had appointed its Investigatory to do the needful.


8. When the reply filed by the opposite party is considered, it is highlighted that no where it has been asserted that at the time of insuring the cattle, the tag had been affixed on its ear. There is no such averment that the tag had been given to the complainant for being affixed on the cattle. Undoubtedly, the opposite party has relied upon the proof affidavit of Sh. Ram Singh, Ex.OPW1, but even in this affidavit, it has not been stated on oath, that the tag had been affixed on the ear of the cattle, which had been insured by the opposite party. In the absence of such proof, the contention of the complainant that at the time of insuring the cattle, the tag had not been affixed, could not be straightway brushed aside. We may observe that by way of his proof affidavit, Ex.CW1, the complainant has supported all the facts, as mentioned in the complaint on oath including that at the time of insuring the cattle, the tag had not been affixed on the ear of cattle.
On record, the complainant has brought health/soundness certificate of the cattle, which is Annexure C-2. In this certificate, the description of the cattle has been mentioned. Annexure c/-1 is the insurance policy of the cattle, allegedly insured by the complainant. Its perusal goes to show that tag number 6049 had been issued to the cattle by the insurance company. We may like to observe that it was the bounden duty of the opposite party to have got affixed the tag on the ear of the cattle. Annexure OP-2 is the report given by Investigator Sh. Shanti Sawroop, which also goes to show that the animal which had died had been issued tag No.6049 but before the same could have been affixed on the ear of the animal, it died. From the evidence, which has come on record, it is abundantly clear that a tag number 6049 had been issued by the opposite party to the cattle of the complainant. The version of the complainant is to this effect that the said tag pertained to the cattle, which died before the same could be affixed on its ear.

This version of the complainant has not been rebutted by the opposite party for want of cogent and reliable evidence. Even the opposite party has not brought on record any such evidence which could go to show that besides the cattle in question, the complainant is having other buffalo. Even no efforts have been made by the opposite party to bring on record such evidence that the cattle which had died, was not the same which had been allegedly insured vide tag No.6049. In these circumstances, the genuine of the claim of the complainant cannot be denied on the basis of “NO Tag No Claim. We may reiterate that it was the duty of the opposite to have affixed the tag on the ear of the cattle in question. Thus, the opposite party has not applied its mind to the facts of the present case, and illegally and arbitrarily rejected the genuine claim of the complainant. This is nothing but great deficiency in service.


9. Now, how this deficiency can be cured? We are of the view that the ends of justice will be met, in case the opposite party is directed to pay the insured amount to the complainant within 30 days after the receipt of copy of this order, failing which it will carry interest @ 9% per annum from the date of complaint, till its realization. Due to deficiency in service, the complainant has also suffered mental pain, agony and inconvenience and the ends of justice will be met in case, the opposite party is directed to pay compensation, which is quantified at Rs.3000/-. Hence, Point no.1 is answered partly in affirmative.


10. No other point argued or urged before us.


RELIEF
11. In view of our findings on point 1, above the complaint is partly allowed and we order the opposite party to pay the insured amount to the complainant within 30 days after the receipt of copy of this order failing which it will carry interest @ 9% per annum from the date of complaint till its realization. The opposite party is also directed to pay compensation to the complainant to the tune of Rs.3000.-. The complaint is allowed alongwith litigation costs of Rs.2000/-

Raghav Aggarwal aged 25 years s/o Anil Kumar Gupta resident of Hoshiarpur Roller Flour Mills Pvt. Ltd. Naloian Bye Pass Tehsil and District Hoshiarpur.




Complainant


vs.

1. United India Insurance Co.Ltd., Divisional Office-92, The Mall, Ludhiana through its Divisional Manager.
2. United India Insurance Co. Ltd., Divisional Office, Jalandhar Road, Hoshirpur through its Divisional Manager.

Opposite parties

1. The complainant namely Raghav Aggarwal 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 the complainant alongwith his parents Anil Kumar Gupta and Kusam Lata Gupta and brother Gautam Aggarwal took the joint medi claim policy from OP No.1 for a sum of Rs.2 lac on payment of premium of Rs.2469/-. The said policy was valid from 23.2.2003 to 22.2.2004. In the above said policy, the name of Raghav was inadvertantly mentioned as Rishav. That the complainant filled the regular proposal form and disclosed the true facts of each insured person regarding their disease and illness. The OP No.1 accepted the proposal form, and thereafter issued the said insurance policy. The said insurance policy was got renewed from 23,2.2004 to 22.2.2005,23,2,2005 to 22.2.2006, 23.2.2006 to 22.2.2007 and 23.2.2007 to 22.2.2008. The said policy is continuing for the last five years, as such, as per terms and conditions, the exclusion clause was waived. That in the first two policies, the OPs have mentioned the bonus amount of Rs.20,000/- but in the last three policies w.e.f. 23.2.2005, the bonus amount has not been recorded.
2. It is the allegation of the complainant that he developed some heart problem in the month of April,2007 and got himself admitted in Escorts Heart Institute and Research Centre, New Delhi on 27.4.2007.The information regarding the hospitalization was given to OP No.1 by Sh Gautam Aggarwal, the brother of the complainant on 30.4.2007. The complainant remained admitted in the hospital from 27.4.2007 to 1.6.2007. The complainant paid a sum of Rs. 5,16,655/- as hospital charges vide bill dated 1.6.2007, and thereafter, he lodged the claim with OP No.1 and also completed the other formalities. The OP No.1 did not settle the claim, thus, the complainant wrote a letter dated 13.2.2008 to OP No.1 to settle the claim. OP NO.1 instead of settling the claim, informed the complainant that claim intimation letter 30.4.2007 has not been received and directed him to send all the claim papers. The complainant on receipt of the said letter, gave a detailed reply alongwith photocopy of claim intimation letter dated 30.4.2007 showing the receipt of the said letter by the official of OP No.1. However, the complainant again supplied the copies of relevant documents to OP No.1 on 29.5.2008 with the request to settle the claim within 15 days but more than 150 days have elapsed.. That the delay in settling the claim on the part of OP NO.1 amounts to deficiency in service , hence this complaint.
3. OPs filed the reply. Preliminary objections vis-a-vis maintainability, cause of action, jurisdiction and complaint is pre-mature as the complainant never lodged any claim with OP No.1 regarding his hospitalization on the prescribed claim form alongwith medical treatment were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the liability of the insurance company is governed by the terms and conditions of the insurance policy. That no documents of hospitalization and medical treatment were ever supplied by the complainant to the replying OPs. The insured and insurer are governed by the contract of insurance.
4. In order to prove the case, the complainant tendered in evidence affidavit Ex.C-A, copy of medi claim policies from 23.2.2003 to 22.2.2008 Mark C-1 to C-5, intimation letter dated 30.4.2007 Mark C-6, discharge certificate Mark C-7, final bill of Escort Hospital Mark C-8, receipts of Escort Hospital Mark C-9 to C-13, letter dated 13.2.2008 Mark C-14, dated 24.3.2008 Mark C-16, postal receipt Mark C-15, dated 14.5.2008 Mark C-17, postal receipt Mark C-18, dated 20.5.2008 Mark C-19, 29.5.2008 Mark C-20, postal receipt Mark C-21, copy of judgment dated 6.10.2008 Mark C-22, letter dated 1.2.2008 Mark C-23,dated 12.2.2008 Mark C-24 and endorsement of policy Mark C-25 and closed the evidence.
5. In rebuttal, the opposite parties tendered in evidence affidavit of Jagtar Singh Ex. OPW1/A, insurance policy Ex. OP-1 and letter dated 24.11.2008 Mark OP-2 and closed the evidence.
6. The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the case minutely.
7. The admitted facts may be noticed thus:

1. 
   
   1. 
      
      1. 
         
         1. 
            
            1. 
               
               1. That the complainant took the joint medi claim policy from OP No.1 for a sum of Rs.2 lac Mark C-5.
               2. That the claim of the complainant was repudiated on 20.3.2009.

1. 8 The OPs have repudiated the claim of the complainant on the ground that after going through all the papers , Doctor T.L. Gupta has submitted in his report that the disease for which the claim was lodged is a congenital disease and the insured was having the knowledge of the disease while taking the policy, which is concealment of facts, as such, the only point which calls decision from this Forum is whether the claim is covered by the exclusion clause? The answer to this is in the negative.
   9 Mark C-1 to Mark C-5 are the medi claim policies obtained by the complainant from the OPs for the years 23.2.2003 to 22.2.2004. 23.2.2004 to 22.2.2005, 23.2.2005 to 22.2.2006, 23.2.2006 to 22.2.2007 and 23.2.2007 to 22.2.2008 respectively. The close scrutiny of repudiation letter makes it clear that the OPs have repudiated the claim on the ground “ That after going through all the papers , Doctor T.L. Gupta has submitted in his report that the disease for which the claim was lodged is a congenital disease and the insured was having the knowledge of the disease while taking the policy, which is concealment of facts.” Section 4 of the terms and conditions of the policy Mark C-5 is reproduced for the purpose of convenience:

4. Exclusions:
The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of;

1. 
   
   1. All diseases/ injuries which are pre existing when the cover incepts for the first time . This exclusion will be deleted after three consecutive continuous claims free policy years provided there was no hospitalization for the pre existing ailment during these three years of insurance.”

1. 10 The reading of clause 4 referred to above of the terms and conditions of the policy makes it clear that all diseases/ injuries which are pre existing when the cover incepts for the first time ,this exclusion will be deleted after three consecutive continuous claims free policy years provided there was no hospitalization for the pre existing ailment during these three years of insurance.”
2. It is not the case of the OPs that the complainant was not the holder of medi claim policies for the three consecutive continuous claims free policy years. It is also not the case of the OPs that there was hospitalization of the complainant for the pre existing disease during these 3 years of insurance, therefore, clause 4.1 of clause 4 of the terms and conditions qua Mark C-5 are fully attracted to the facts and circumstances of the present case , as such, it can be held without any hesitation that OP No.1 had repudiated the claim wrongly on the ground that the complainant was having pre existing disease. It is held that under the given situation, the said exclusion clause stands deleted , as such, the defence raised by the OPs goes to the ground.
3. Admittedly, the sum insured is Rs.2 lac qua Mark C-5. The complainant has produced on record the receipts of medical bills Mark C-9 to Mark C-13 of Escort Hospital . The complainant has also produced the final bill of Escort Hospital Mark C-8 for net amount of Rs.5,00,905/-. Since the complainant has obtained the medi claim policy for Rs.2 lac only qua Ex.OP-1, therefore, he cannot claim more than 2 lac from the OPs.
4. As a result of the above discussion, it is held that the OPs have illegally repudiated the claim of the complainant, which amounts to deficiency in service, with the result, the complaint is accepted and the OPs are directed to pay the claim amount of Rs. two lac to the complainant with interest @ 9% per annum from the date of filing the complaint i.e. 30.10.2008 till realization alongwith litigation expenses of Rs.1000/- within one month from the receipt of copy of the order.

Paramjit Kaur widow of Sh. Kuldeep Singh son of Sh. Ishar Singh, resident of 456, Jagjit Nagar, Threeke Road, Ludhiana.
….Complainant.
Versus

1- United India Insurance Company Limited, Divisional Office IV, Savitri Commercial Complex-1, G.T. Road, Dholewal, Ludhiana through its Senior Divisional Manager.
2- United India Insurance Company Limited, Regional Office, 136, Feroze Gandhi Market, Ludhiana through its Regional Manager.

….Opposite parties.

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

Quorum:
Sh. T.N. Vaidya, President.
Sh. Rajesh Kumar, Member.

Present: Sh. Parveen Talwar Adv. for complainant.
Sh. M.R. Saluja Adv. opposite parties.
O R D E R

T.N. VAIDYA, PRESIDENT:

1- Sh. Kuldeep Singh husband of complainant (hereinafter, to be referred as “insured”) obtained personal accident insurance policy bearing no.201000/42/02/00484, effective from 25.10.2002 to 24.10.2003, from opposite party insurance company. He obtained cover of Rs.10 lacs and in addition, was entitled to accumulative bonus @ 5% on the sum assured for previous year, as no claim was made in the previous year. Sh. Kuldeep Singh died in a road accident on 3.9.2003. Claim under the policy was lodged with opposite party, vide letter 22.9.2003. They after about 8 months, vide letter dated 29.4.2005, only sanctioned claim of Rs.217370/-, despite insurance coverage of Rs.10 lacs. Complainant represented that would be entitled for Rs.10 lacs alongwith Rs.50000/- cumulative bonus and requested for release of entire amount. But they did not agree. Hence, claimed in this complaint under section 12 of the Consumer Protection Act, 1986, that act of opposite party was wrong, arbitrary and illegal. No terms and conditions of the policy was ever supplied or delivered to her. Hence, by not clearing her claim under the policy, opposite party are guilty of deficiency in service and resultantly, liable to pay Rs.10.50 lacs alongwith Rs.50000/- for deficiency in service and Rs.5000/- as litigation costs.


2- Opposite party in reply admitted obtaining accidental insurance policy by husband of complainant, lodging claim under the policy after death of her husband. Also conceded approving claim for Rs.217370/-, which amount was offered, but complainant refused to receive the same. Her entitlement was for Rs.217370/- under the terms and conditions of the policy, assessed after obtaining income tax returns of the insured, by their surveyor and investigator. The insured as per income tax returns dated 6.2.2001, had shown income of Rs.43714/-. The insured had taken insurance policy in excess of his income. Maximum liability of the company was to be calculated on the gainful income of the deceased insured, as declared by him to the income tax authority. Therefore, on the basis of income tax returns of the deceased husband of complainant, claim was settled for Rs.217370/-. Earlier to this policy, the insured had taken policy from National Insurance Company for Rs.2 lacs effective from 20.10.2000 to 19.10.2001. He with malafide intention, got the policy for Rs.10 lacs, which was in excess of his gainful income. Hence, there is no deficiency in service on their part and complaint deserves dismissal.


3- Both parties adduced evidence in support of their claims by way of affidavits and documents. We have heard ld. counsel for parties and have carefully gone through the entire record.


4- It is admitted that husband of complainant had obtained from opposite party, accidental insurance policy of Rs.10 lacs. It is not disputed or denied that he had died in an accident and thereafter, complainant lodged claim under the policy with opposite party. Opposite party under terms and conditions of the policy, copy of which is Ex.R2, sanctioned and passed an amount of Rs.217370/-, but she refused to receive the same.


5- In the light of aforesaid aspects, the only matter for our consideration is whether the claim under the policy, was rightly assessed and paid by opposite party to the complainant. For such purpose, we shall have to look into terms and conditions of the policy Ex.R2, placed on the record.


6- Before we glance this policy Ex.R2, may highlight that no proof has been adduced by opposite party, qua sending copy of policy, containing terms and conditions to the insured or that it was delivered to him or the complainant. Neither opposite party has adduced any evidence qua sending copy of the policy to the complainant by post. In these circumstances, we believe version of the complainant that terms and conditions of the policy were never delivered either to the insured or to the complainant. Only the insured was delivered cover note, copy of which Ex.C2.


7- Argued on behalf of opposite party that parties to the insurance policy would be bound by terms and conditions of the agreement. In support, drew our attention to a case reported in Vijay Kumar Salwan Vs Life Insurance Corp. of India 1998(2) CPC-536 (PunjabState Commission). But with due respect, we venture to record that it would have no bearing to the case in hand. As opposite party had only provided to the insured, cover note Ex.C1 and never furnished him copy of policy containing terms and conditions. Unless and until, such thing was done by them, complainant would not be bound by the unilateral terms and conditions, which they never brought to the notice of the insured.


8- Hon’ble OrissaState Commission in New India Assurance Co. Ltd. & Anr. Vs Patitapaban Karan 2008(1)CLT-177(Orissa State Commission), has held that where insurance company has not adduced any evidence to prove that exclusion clause of policy were brought to notice of complainant, reliance of insurance company on exclusion clause, is of no avail.


9- Same view was held by the Hon’ble U.T. State Commission, Chandigarh in New India Assurance Co. Ltd. Vs Saroj Sian & Anr. 2008 (1) CLT-178 (UT Chandigarh), wherein, it was held that insurance company was liable under the policy, as exclusion clause was not disclosed to the insured and it was not part of the policy.

10- So, it is cardinal principle of law that insured would be bound with the terms and conditions of the policy, if it has been made available to him, otherwise not.


11- At this stage, we may state that qua accidental death of the insured, FIR Ex.C4 was registered and thereafter, post-mortem of the body was also got done, vide post-mortem report Ex.C5.


12- Now, we shall advert to duplicate copy of individual personal accident policy, pertaining to insured husband of the complainant Sh. Kuldeep Singh. In these terms and conditions of the policy, there is no such condition printed that liability of the opposite party would be restricted to capital sum insured for Table IV 24 month’s proven gainful income or SCI whichever is less; (ii) for Table I to IV(Combined) 60 month’s proven gainful income of capital sum insured, whichever is less. These words in this printed policy, have been inserted by way of fixing rubber stamp. No material is placed on the record by opposite party, when such stipulation was added to the terms and conditions of the policy, which they did not place in original printed form. But appears to be added subsequently, by putting a rubber stamp, pertaining to conditions of the policy. According to ld. counsel for complainant, such stamped conditions were inserted for future individual personal accident policy of the opposite party w.e.f. the year 2006. Whereas, the case pertains prior thereto, as the policy covers period w.e.f. 25.10.2002 to 24.10.2003. Opposite party failed to show us any instructions, notification when such conditions were made part of policy, by way of rubber stamp. Therefore, we have no reason to disbelieve contention of the complainant.

13- In view of aforesaid reasons, we are of the view that opposite party was not justified, to apply conditions of the policy mentioned thereon, by way of rubber stamp, to restrict claim to Rs.217370/- only on the basis of income of the insured, as mentioned by him in his income tax returns, copy of which is Ex.R12. Specially, we are also taking such view for additional reasons that these terms and conditions of the policy, were never conveyed by opposite party to the insured, nor they supplied copy of the insurance policy to him. In the light of above discussion, we are of the firm view that as insured husband of complainant had died in accident, so opposite party would be liable to honour the policy vide which, he had got himself insured for Rs.10 lacs. By not paying the amount under the policy, opposite party would be guilty of not rendering proper service to its own consumer.


14- Sequel thereto, we allow the complaint and as a result, direct opposite party to pay insurance amount of Rs.10,00,000/- (Rupees Ten Lacs) to the complainant alongwith bonus as per admissible under the policy, within 45 days of receipt of copy of order. We don’t pass any order as to compensation, but order opposite party to pay litigation cost of Rs.2000/- to the complainant.

CC.No:206/2008

BETWEEN:
K. Susanna Kumari,
W/o late Prasad Babu, house wife,
Hindu, aged 40 years,
R/o. D.No.5-25-33/3,
Mery Christianpet,
Behind/LTD Guest House,
Perala Post, Chirala Mandal,
Prakasam District. ... Complainant.

Vs.

The Branch Manager,
M/s. United India Insurance Company,
Trunk Road, Hindu, R/o Trunk Road,
Biruduraju Towers, Ongole,
Prakasam District. …Opposite party.


COUNSEL FOR COMPLAINANT: SRI D. KRISHNA MOHAN,
ADVOCATE, ONGOLE.

COUNSEL FOR OPPOSITE PARTY: SRI S. RAGHUNADHA REDDY,
ADVOCATE, ONGOLE.

This complaint is coming on 07.04.2009 for final hearing before us and having stood over this day for consideration this Forum delivered the following:
ORDER:
1. This is a complaint filed by the complainant under Section 12 of Consumer Protection Act, 1986 directing the opposite party to pay the insurance amount of Rs.1,00,000/- together with interest and costs of litigation to the complainant.

2. The averments in the complaint are as fallows: The husband of the complainant K. Prasad Babu submitted proposal form for obtaining Janatha Personal Accident policy for Rs.1,00,000/-. The opposite party calculated the premium amount as Rs.288/- and the husband of the complainant paid premium regularly. The policy was for a period of 5 years from 20.06.2002 to 19.06.2007. Unfortunately, the husband of the complainant met with an accident and died on 07.04.2007 same was informed to the police and the crime was registered. The complainant claimed the insurance amount under the policy and the opposite party conducted enquiry and satisfied with the conditions. During scrutiny it was found that in the policy the sum assured was mentioned as Rs.10,000/- instead of Rs.1,00,000/- due to the mistake committed by the concerned person who prepared the policy. After the type mistake was brought to the notice of the opposite party they agreed to rectify the mistake and promised to pay the policy amount of Rs.1,00,000/- to the complainant. But, they have been postponing the same on some pretext or the other. The complainant issued legal notice to the opposite party on 15.05.2008 and the opposite party received the notice and gave reply without rectifying their mistake. In fact on the very same day nearly 80 Government Vehicle Drivers applied for the same policy for Rs.1,00,000/- and the opposite party issued policy for an amount of Rs.1,00,000/- to all the drivers. Unfortunately, the complainant’s husband policy was prepared wrongly. It is a primafacy mistake committed by the opposite party. Hence, the complainant is constrained to file the present complaint against the opposite party.

3. The opposite party filed its counter contending as fallows: The allegations made in the complaint are all false. The opposite party issued policy for Rs.10,000/- and the complainant being the nominee is entitled to receive only Rs.10,000/- from the opposite party. On 27.03.2007 at about 7.00 P.M the deceased while returning home reached Annavarappadu Railway Crossing Gate and while crossing the Railway Track he slipped and fell down on the Railway Track and received injuries and died on 07.04.2007 while undergoing treatment. As per the F.I.R and Panchanama the deceased was in intoxication condition and as per the policy conditions the claim was not payable and the same was intimated to the complainant. For the foregoing reasons the opposite party prays the court to dismiss the petition.

4. On behalf of the complainant Exs.A1 and Ex.A2 were marked. The Ex.A1 is the Proposal form and Ex.A2 is the Policy Schedule. No documents are marked on behalf of the opposite party

5. The point for consideration is whether the complainant is entitled for the reliefs in the complaint.

6. The learned counsel for the complainant argued that the husband of the complainant had taken Janatha Personal Accident Policy for Rs.1,00,000/- and the opposite party calculated the premium as Rs.288/- and the insured paid the premium regularly. Unfortunately, the insured met with an accident and died on 07.04.2007. When the complainant submitted claim for the policy amount opposite party stated that policy was issued only for Rs.10,000/- and not for Rs.1,00,000/- and therefore, they are liable to pay only Rs.10,000/- to the complainant. He further argued that the insured submitted proposal form for taking policy for Rs.1,00,000/- and the opposite party calculated the premium payable on Rs.1,00,000/- as Rs.288/- and accordingly the insured paid the premium. He further argued that while preparing the policy the sum assured was wrongly typed as Rs.10,000/- instead of Rs.1,00,000/- by the concerned official and the opposite party without admitting their mistake refused to pay Rs.1,00,000/- to the complainant.

7. The opposite party contented that they issued policy for Rs.10,000/- and they are liable to pay only Rs.10,000/- and not more than that.

8. The complainant relied upon Ex.A1 proposal form to prove her case. As per the proposal form submitted by the insured the policy was taken for the sum assured of Rs.1,00,000/- and on this amount opposite party computed net premium as Rs.288/-. The policy was for 5 years from 20.06.2002 to 19.06.2007 accordingly the insured paid premium till his death. If the sum assured is Rs.10,000/- the premium would be much less. Calculation of premium on Rs.1,00,000/- and receiving premium on Rs.1,00,000/- supports the case of the complainant that the opposite party wrongly typed the amount as Rs.10,000/- instead of Rs.1,00,000/- while preparing the policy. The insured might not have noticed the same. On the innocence of the insured the opposite party cannot take any advantage. It is not the case of the opposite party that they did not receive premium of Rs.288/- from the insured. They admitted that they received premium of Rs.288/-. The Ex.A1 shows that Rs.288/- is calculated as premium on the sum assured of Rs.1,00,000/-. Having received the premium on the sum assured of Rs.1,00,000/-. Now, the opposite party cannot say that the policy was issued for Rs.10,000/-. The policy is a Group Insurance Policy and about 80 Government Vehicle Drivers including the insured obtained policies on the same day and the opposite party issued policy for Rs.1,00,000/- each to all the Government Vehicle drivers. Unfortunately, there was a mistake in the policy issued to the insured in this case. The sum assured is wrongly typed as Rs.10,000/- instead of Rs.1,00,000/- in the policy issued to the insured. Opposite party should be fair enough to accept the mistake and pay the policy amount to the complainant instead of harassing the complainant.

9. For the foregoing reasons I am of the opinion that the opposite party is liable to pay the policy amount of Rs.1,00,000/- to the complainant.

10. In the result, petition is allowed and the opposite party is directed to pay the policy amount of Rs.1,00,000/- and Rs.1,000/- towards costs of litigation to the complainant within Two months from the date of order. Failing which, the opposite party is liable to pay interest @ 9% p.a., till realization.

CONSUMER COMPLAINT NO.88/2008.

Friday, the 24th day of April, 2009.

Between:
1. N.Nageswara Rao, S/o. Ratnam,
Hindu, 48 years, D.No.11-21,
Konkapalli Anjaneya Swamy Temple,
Amalapuram.

2. Nalam Manga Tayaru,
W/o. N.Nageswara Rao, 46 years,
D.No.11-21, Konkapalli Anjaneya
Swamy Temple Lane, Amalapuram. ...Complainants.

A N D

1. Andhra Bank, Dwarapudi Branch,
Rep. by its Branch Manager.

2. United India Insurance Co. Ltd.,
Divisional Office, Rep. by its
Divisional Manager, Office No.4,
II Floor, Ponnett Bhavan,
Ramkote, Hyderabad. … Opposite parties.


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


(PER SRI A. MADHUSUDANA RAO, MEMBER)

This is a complaint filed by the complainants under Section 12 of the consumer Protections Act to direct the opposite parties jointly and severally to pay the insurance claim of Rs.25,000/- with interest from 26.11.2006 till payment, to award compensation of Rs.10,000/-, costs of the complaint and other reliefs.


2.The case of the complainants as set out in the complaint is that the first
complainant was the nominee and father of the deceased Nalam Naga Venkata Kali Krishna Bhagavan and the 2nd complainant is the mother of deceased. The deceased policy holder died on 26.11.2006 as he was hit and run over by unknown train at KM 599/6-8 near Dwarapudi railway station. The deceased was holder of ASB a/c vide No.2793 of 1st opposite party bank and there is a coverage of insurance for accidental death of account holder of the bank. After the death of account holder i.e the deceased the first complainant being nominee applied for insurance claim to the 2nd opposite party herein to indemnify through the 1st opposite party. But, the 2nd opposite party refused the claim on untenable grounds. The deceased is only the bed winner of complainants family. The deceased was hale and healthy and there was no circumstances prevailed to commit suicide. The investigation authorities closed the further investigation expressing doubt that the deceased committed suicide without any reasonable cause or evidence. Basing on the investigation reports the 2nd opposite party refused the claim of the complainants. Hence, this complaint.


3. Both the opposite parties filed their written versions. The 1st opposite party in its version denied all the main and material allegations made in the complaint and stated that the complaint is not maintainable either under law or on facts. The 1st opposite party submitted that the complainants are put to strict proof of their allegations. It is true that the deceased during his life time opened Abhaya Savings Bank Account on 21.09.2005 with the 1st opposite party vide a/c No. 2793 and the 1st complainant herein was nominee. It is further submitted that for ASB a/c holders there is an insurance coverage for accidental death of a/c holders. This 1st opposite party’s bank had a tie up with this 2nd opposite party for insurance claim of ASB a/c holders and the insurance coverage is for Rs.25,000/- for accidental deaths only and there is no coverage for natural deaths. The insurance here commence from 1st September to 31st August of the succeeding year and the premium amount is Rs.18/- per year. This opposite party has nothing to do with the settlement of insurance claim and the 2nd opposite party is solely responsible for the same as the bank is only a facilitator.
It was further submitted that as per the terms and conditions of the above said ASB account the claim information should be given to this opposite party directly with in 90 days and the documents relating to the claim with in 180 days from the date of accidental death/injury. The complainants approached this 1st opposite party and submitted the information and documents and the same were sent to the 2nd opposite party along with a letter dt 08.05.2007 for settlement of insurance claim and this opposite party contacted the insurance company from time to time for settlement of claim of the complainants. As such, the 2nd opposite party repudiated that the claim of the complainants vide their letter dt 12.12.2007 on the ground that the death of the deceased is not accidental but a case of suicide as per the circumstantial evidence and investigation reports and so as per exclusion clause No.7-A the 2nd opposite party repudiated the claim. So, under the above stated circumstances this opposite party did not commit any deficiency of service. Hence, the Honourable Forum may be pleased to dismiss the complaint against this 1st opposite party with costs.
The 2nd opposite party in its version denied all the allegations made in the complaint and stated that the complaint is not maintainable under law and on facts. It was further submitted by the 2nd opposite party that the claim of the complainants is not payable as per exclusion cause No.7A of the policy because the death was suicidal but not an accident. Further, it was submitted that the complainants failed to submit necessary proofs further the cause of the death of the deceased with supported material papers to this opposite party towards their claim. It is submitted that as per the private investigations of this opposite party insurance company death of the deceased person was suicide and the police investigation also expressed the same view, therefore the death was not an accidental and so the claim was repudiated by this opposite party.
The complainants are put to stick proof with supported documents for the cause of the death of the deceased as accident and the burden lies on the complainants to establish the real facts under what circumstances the deceased died. The inquest report and other circumstances through investigation reveals that the death occurred due to suicide. It is further submitted that this complaint in not maintainable in this Forum for proper adjudication of the matter in dispute because this opposite party disputed the nature and cause of death of the deceased and this matter has to decided in the Civil Court for examining witnesses and to take elaborate evident. Therefore, in view of the above facts this opposite party prays the Hon’ble Forum to dismiss the complaint in limini in the interest of justice.


4. Heard both the parties. The opposite parties filed their written arguments.

5. Points to be considered in this case are that;

1. Whether there is any deficiency in service on the part of the opposite parties?
2. Whether the complainant is entitled for the claim amounts and other
reliefs asked for? If so, to what extent?


6. Exs.A.1 to A.6 are marked on behalf of the complainant and Exs.B.1 to B.5 are marked for 1st opposite party and Exs.B.6 to B.9 are marked for 2nd opposite party.


7. Admitted facts in this case are that the deceased during his life time opened Abhaya Savings bank account on 21.9.2005 vide Ex.A.2 Passbook=Ex.B.1 with the 1st opposite party branch vide A/c No.2793. The deceased account holder and son of the complainants herein died on 26.11.2006 vide death certificate issued by the Gram Panchayat, Dwarapudi appended in Ex.A.2 and death report vide Ex.A.3. The 1st complainant herein was the nominee and for the said Abhaya Savings Bank account there is coverage for accidental death of account holders. The insurance coverage is at Rs.25,000/- for accidents only and natural death is not covered. The 1st opposite party contacted the 2nd opposite party for the settlement of claim vide Ex.B.4,B.5 letters of the deceased preferred by the complainant. The 2nd opposite party finally repudiated the claim vide their letter Dt.12.12.2007 under Ex.A.1=Ex.B.8.


8. POINT NO.1: The case of the complainants herein is that their son by name Nalam Venkata Kali Krishna Bhagavan died as bachelor on 26.11.2006 due to hit and run by unknown train near Dwarapudi Railway station. Further, the deceased was an ASB account holder of the 1st opposite party and under coverage of insurance with the 2nd opposite party in case of accidental death. As such, when the complainants preferred a claim with the 2nd opposite party through the 1st opposite party after death of the deceased, the same was repudiated by the 2nd opposite party stating untenable reasons.

Whereas, the 1st opposite party contended that they sent the claim form submitted by the complainants to the 2nd opposite party who has to settle the claim of the complainants and the claim was repudiated by the 2nd opposite party as per their terms and conditions and this 1st opposite party is no way concerned with the same.

The 2nd opposite party contended that the deceased person and the policy holder has committed suicide as per their private investigations and the police also expressed the same view and therefore the death is not an accidental death, but it was suicidal case and so, this opposite party has no liability for the claim, hence repudiated the same on the terms and conditions of the policy. The complainants failed to prove the death of the deceased policy holder with supported material papers towards their claim and there is no deficiency in service on the part of this opposite party.

On perusal of the record it is found that the complainant’s deceased son operated an ASB account with the 1st opposite party bank and the deceased was under coverage of insurance of Rs.25,000/- for accidental death with the 2nd opposite party insurance company under tie up between the 1st and 2nd opposite parties herein. Further, it is also found that the 1st opposite party submitted the claim of the complainants with all necessary certificates on 8.5.2007 vide Ex.B.4 to the 2nd opposite party insurance company and further send a reminder Dt.1.9.2007 vide Ex.B.5. As per the record it is found that the deceased died on 26.11.2006 at KM.599/6-8 near Dwarapudi Railway station and the death report Dt.8.12.2006 issued by the Govt. Railway police Authorities under Ex.A.3 in which it was mentioned that the cause of death was due to accident. Further, in the FIR filed under Ex.A.5 also reveals that a case was registered U/Sec.174 Cr.P.C (Suspicious death), it is also found in Ex.A.6 inquest report prepared by the GRP Authorities also did not reveal the cause of death. But, in the said report it was clearly stated that the deceased was a deaf person by birth and further the deceased suffering unbearable stomach ache and for which he might crossed the railway track to attend nature call without observing the train or he might commit suicide for the reasons known to him only, but the cause of death was not ascertained specifically and not confirmed the reason during the inquiry.
Further, it is observed that in the postmortem examination report under Ex.A.4, the body of the deceased was brought in two separate parts and grease marks were found all over the body and 1/3rd of upper arm was not brought along with the body. This report reveals that the body was cut into pieces and this might happen due to dash by the train as revealed in Ex.A.6 inquest report that the body was dragged up to 50 sleepers and there is no constructive proof that the deceased committed suicide. The private investigation report filed by the 2nd opposite party vide Ex.B.6 by their investigator stated that there was no way (or) no necessity for any person to cross the track at that particular point. Further, in the said investigation report one T Kalikrishna (Nephew of deceased) has given written statement vide Ex.B.9 stating that the deceased intentionally laid on the Railway track due to unbearable stomach ache. But, there is no affidavit by the said person to this effect and there is no evidence that the said Kali Krishna related to the deceased or not.
With the discussion held supra and under the facts and circumstances of the case, we are in the considered opinion that the death of the deceased might be caused due to dash by the train while the deceased crossing the track and further we are of the opinion that the deceased was a deaf by birth, he might not observed the train as he cant hear the sound of the train. Further, there is no particular evidence that the deceased committed suicide as per the public documents filed under Ex.A.4,A.5 and A.6, further the police registered a case under suspicious death only and there is no final report with particular reason. But, in the death report Dt.8.12.2006 issued by the Govt. Railway police vide Ex.A.3 which was a public document it was stated the death was caused accidentally. So, we are in the opinion that the opposite parties failed to prove that the death of the deceased was a suicidal case and so, the complainants herein are entitled for the claim under the policy from the 2nd opposite party. The claim against the 1st opposite party is not sustainable as they have nothing to do with the claim and they discharged their part in sending the claim form and documents to the 2nd opposite party as per their liability.


9.POINT NO.2: In the result, the complaint of the complainants is allowed directing the 2nd opposite party insurance company to pay the claim amount of Rs.25,000/- (Rupees twenty five thousand only) with interest @9% P.A from the date of repudiation i.e 12.12.2007 till the date of realization. The 2nd opposite party further directed to pay Rs.1,000/- (Rupees one thousand only) towards costs of this complaint.

C.C.No.80/2008

Between:

1.Dhulam Krupa Lakshmana Rao, S/o Thimmaraju, 39 years,
S Yanam Village, Uppalaguptham Mandal.
2.Dhulam Kasi Annapurna, W/o Krupa Lakshmana Rao, 30 years,
S Yanam Village, Uppalaguptham Mandal. ..Complainants.

A N D

1.The Manager, State Bank of India,
Bandarulanka, Amalapuram Mandal.
2.The Branch Manager, United India Insurance Company Ltd,
Kuchiminchi Agraharam, Amalapuram. Opposite parties.
This case is coming on 20.3.2009 .for final hearing before this Forum and upon perusing the complaint, and other material papers on hand and upon hearing the arguments of Sri K V V S Prabhakar Rao, Advocate for the complainants and the 1st opposite party remained exparte and Sri B Ramesh, Advocate for the 2nd opposite party and having stood over for consideration till this day, this Forum has pronounced the following.

O R D E R

(By Smt.H V Ramana, Member)
This is a complaint filed under section.12 of the Consumer Protection Act, 1986 by the complainants to direct the opposite parties to pay an amount of Rs.1,75,000/- under 1st policy and Rs.1,85,566/- under 2nd policy with interest @24% P.A and to award costs.

2. The case of the complainants as set out in the complaint in brief is that, they obtained loan of Rs.5,20,000/- under Kissan Credit Loan from the 1st opposite party for developing their tank bunds and to do fish culture at their lands situated in S Yanam Village. The complainants obtained two policies from the 2nd opposite party vide bearing No’s.1551101/46/05/39/00000084 for the period from 19.10.2005 to 18.10.2006, the net premium paid is Rs.1,715/- for two fish tank bunds. The insured sum is Rs.1,75,000/-. Policy No.2 bearing No.151101/47/05/06/46/00000318 for a period from 19.10.2005 to 18.10.2006, net premium paid is Rs.12,450/- for fish in tanks 1 Extent is 3.4Hcts and 2 extent is 0.4 Hcts and the fish culture varieties are (1)Katla fish stock per acre 3000 stock (2)Rohu fish stock per Acre 9999 stock, the sum insured is Rs.1,85,566/-. The net premiums were paid by the 1st opposite party by debiting the amounts from the complainant’s account. While doing the fish culture the heavy and devasting flood occurred in the month of August, 2006 the entire uppalaguptham mandal was submerged in the flood water and the S Yanam village also submerged in the flood waters. Due to this the complainant’s fish tanks which were insured by the 2nd opposite party also submerged in the flood water and the tank bunds were also damaged. The entire fish culture was washed away in the floodwater. The Uppalaguptham Mandal was announced as crop damaged area due to floods and also the Co-operative societies and Government announced the crop damage reimbursement and crop insurance. The complainant intimated the same to the opposite parties and the surveyor by name Sri Yusuf Khan visited the tanks and requested them to furnish MRO certificate, tax paid receipt, copy of tank passbooks and documents and estimation of loss of bunds further the stock seed, feed and expenditure bills along with statement. As per the surveyors request the complainant furnished all the relevant documents. So far, the 2nd opposite party had not settled the claim. The complainant got issued a legal notice Dt.4.6.2007 demanding their claim. The opposite parties received the same. The 1st opposite party did not gave any reply and the 2nd opposite party issued a settlement intimation by settling the claim of policy No.1551101/46/05/39/00000084 for an amount of Rs.30,000/-. There is no settlement for the second policy i.e 1551101/46/05/39/00000318. The 2nd opposite party did not settle the claim as the insured fish was totally washed away in the flood water. The complainant filed a PLC No.37/2007 in Legal Service Authority, Amalapuram. On that the Honourable Authority issued notice to the opposite parties and the 2nd opposite party appeared before the Legal Cell Authority. The 2nd opposite party was directed by the authority to come along with the surveyor, but they failed to appear before the Honourable Authority and the said case was closed on 1.12.2007. Hence, the complaint.


3. The 1st opposite party remained exparte and the 2nd opposite party filed written version denying all the material allegations made by the complainants. The 2nd opposite party submits that the complainants failed to submit necessary proof with supported material papers to this opposite party towards their claim. The 2nd opposite party further submits that as per the surveyors report no fish stock in the pond/tank at the time of the flood on 10.8.2006. As per the policy fish was stocked in the tank in the month of July, 2005 and the fish crop was harvested in May, 2006, because the said fish does not exist at the time of loss consequently the opposite party has no liability against the complainant. Therefore, the claim is repudiated and as such there is no deficiency in service. This opposite party is no way concerned about the loan obtained from the 1st opposite party. The complainant’s fish tanks were insured with this opposite party also submerged in the flood water and the bunds were also damaged was denied. The complainants are put to strict proof of genuineness of the documents annexed to the complaint and the actual damage occurred to them if any. The complainants stated that the entire Uppalaguptham Mandal was announced as crop damaged area due to floods and all the cooperative societies and the Government announced the crop damage reimbursement and crop insurance, but the complainants has not filed any material proof of loss and purchase of bills of fish seeds and the Government papers. If the Government declares such areas as damaged areas, they should issue through a GO or at least in a daily newspaper. Such material evidence was not filed by the complainants. Hence, the complaint may be dismissed with costs.


4. Exs.A.1 to A.27 has been marked on behalf of the complainants and Exs.B.1 to B.11 were marked behalf of the opposite parties and no oral evidence has been adduced on either side.
5. Heard both sides. Both the parties filed written arguments.

6.The points that arise for consideration are:

1) Whether there is any deficiency in service on the part of the opposite
parties?
2) Whether the complainants are entitled for any relief, If so, to what
relief?

7.POINT NO.1: Admitted facts in this case are that the complainants obtained two policies vide Exs.A.1 from the 2nd opposite party and paid the premium accordingly. Due to heavy floods in the month of August, 2006 the entire Uppalaguptham Mandal submerged in the flood water. The complainants intimated the same to the 2nd opposite party and the 2nd opposite party appointed a surveyor and he requested the complainants for relevant documents. As per the surveyor’s report the opposite party sent a settlement intimation voucher for Rs.30,000/- and the same has been marked under Ex.A.2. The complainant got issued a legal notice to the opposite parties vide Ex.A.3. The 2nd opposite party wrote a letter repudiating the claim vide Ex.A.6. They also wrote another letter about the settlement of the claim under policy No.151101/46/05/39/00000084 under Ex.A.7. Ex.A.8 is a letter issued by the Asst Secretary, Gramp Panchayat, S Yanam. Ex.A.9 was issued by the MRO, Uppalaguptham stating that the fish tanks were completely washed out due to Godavari floods from 10.8.2006 to 14.8.2006 in S Yanam. Ex.A.10 and 11 are the letters written by the surveyor of the 2nd opposite party. Ex.A.12 is the bunch of photographs. Ex.A.13 is the copy of the petition filed before the Lok Adalat. Ex.A.14 is the claim form certificate. Ex.A.15 is the purchase receipt of fish. Ex.A.16 is the expenditure statement of bund. Exs.A.17 to A.25 is the receipts relating to the purchase of Bran Oil. Ex.A.26 is the bund repair estimation made by Sri Sai Associates. Ex.A.27 is the statement showing the particulars of fish culture tanks issued by the Fishery development officer. The opposite parties filed Ex.B.1 fish insurance policy, Ex.B.2 proposal form for inland Fresh water fish, Ex.B.3 is the surveyor report filed by Yusaf Khan, Ex.B.4 is another surveyor report for fish tank bunds, Ex.B.5 is the claim form of fish tank bund, Ex.B.8 is the statement of account of the opposite party, Ex.B.9 is the proposal form and Surveyor report, Ex.B.10 is the proposal form and Ex.B.11 is the proposal form with receipt for fresh water fish insurance.

The complainant contended that the entire Uppalaguptham Area was submerged in the floodwater and the said area was declared as drought area by the Mandal Revenue Officer and also the Co-operative Societies. The complainant further contended that he submitted all the relevant documents to the 2nd opposite party, but the 2nd opposite party failed to settle the claim and repudiated the same in 2nd policy. They further contended that the estimated loss of damaged bund is Rs.1,00,000/- under Ex.A.26. The 2nd opposite party contended that as per the policy condition No.13 of the fish insurance policy No.151101/47/05/46/00000318, the said policy seizes as and when the insured sells them and further risk would not be covered. The complainant shall maintain records on daily by monthly basis relating to different stages of fish stock in various tanks as per 7th condition of the policy. But, they failed to maintain the same. As per the surveyors report the complainant are not maintaining any stock registers or related accounts by the date of the calamity.
After perusing the material on record the complainant on his own estimated the damage of the bund under Ex.A.26 to a tune of Rs.1,00,000/-. The opposite parties surveyor valued the claim to a tune of Rs.38,687/- under Ex.B.4. As per his report the complainant may be entitle for Rs.38,687/- only.

The 1st opposite party is the bank in which the complainants obtained loan under Kissan Credit. This opposite party is no way concerned with regard to the insurance claim. Hence, the complaint against this 1st opposite party is dismissed.
The 2nd opposite party’s surveyor filed another report with regard to fish insurance in detail and he reported that the complainant’s has not taken any preventive measures to control the weeds and predators etc and has not find any fish stock in the tanks and there is no stocks of feed and medicines found at the tank. The complainants have not maintained any daily, monthly fish culture record keeping register and as such there is no stock on the date of occurrence of the calamity.
As per the above records we opine that the complainants are entitled for Rs.38,687/- as per the surveyors report vide Ex.B.4, with regard to the insurance under policy No.151101/46/05/39/00000084. With regard to the Policy No.151101/47/05/00318, as the complainants has not maintained any records as per the terms and conditions of the policy, the surveyor stated that there were no stocks at the time of their inspection and arrived that the insured is not cultivating fish at the time of floods as per his investigation. The complainants stated that they submitted Ex.A.27 issued by the Fisheries Development Officer, but they have not filed their books of account maintained by them for the purpose of the Fish culture. Even the surveyor noticed the same and mentioned in his report. Therefore, basing on the surveyor’s report we opine that the complainants are not entitled for any claim with regard to the fish insurance policy.



8. POINT NO.2: In the result, the complaint of the complainant is allowed in part directing the 2nd opposite party to pay Rs.38,687 (Rupees thirty eight thousand six hundred and eighty seven only) towards claim under policy No.151101/46/05/13/00000084 with interest @9% P.A from the date of filing i.e1.7.2008 till the date of realization. The 2nd opposite party is further directed to pay Rs.1,000/- (Rupees one thousand only) towards costs.

CONSUMER COMPLAINT NO.95/2008.

Friday, the 17th day of April, 2009.

Between:

Smt. Batchu Lakshmi Annapoora,
W/o. Ganga Raju, D.No.12-23-14,
Hindu, 50 years, R/o. Lalitha Nagar,
5th Lane, Rajahmundry. ..Complainant

A N D

1. United India Insurance Co. Ltd,
Rep. by its Divisional Manager,
Divisional Office, Innispeta,
Hothavari Street, Rajahmundry.

2. United India Insurance Co. Ltd.,
Rep. by its Branch Manager,
Branch Office, 3-2-4/1,
Ist Floor, Patimeeda Nidadavole. … Opposite parties.



This case is coming for hearing before this Forum and upon perusing the complaint, version of the opposite parties and other material papers on hand and upon hearing the arguments of Sri G.Gopala Rao, advocate for the complainant and Sri M.Samba Siva Rao, advocate for the Opposite parties 1 and 2 and having stood over for consideration till this day, this Forum has pronounced the following.
ORDER


(PER SRI K CH MOHANTHY, PRESIDENT)

This is a complaint filed by the complainant under Section 12 of the consumer Protections Act to direct the opposite parties to pay an amount of Rs.1,50,000/- with interest @ 24% p.a towards medical expenses from the date of repudiation till realization and Rs.50,000/- by way of damages and pass such other reliefs.


2. The case of the complainant as set out in the complaint is that the complainant along with her husband took individual health insurance policy bearing No.150605/48/07/97/00000552 covering the period from 29.09.2007 to 28.09.2008 by payment of total premium of Rs.9,490/- out of which Rs.3,455/- representing the premium amount covering the liability to an extent of Rs.1,50,000/- in favour of the present complainant. It is submitted by the complainant that as she complained severe pain in both the knees and had check up in Krishna Institute of Medical Sciences, Secunderabad on 11.02.2008 and started conservative treatment by using medicines as prescribed by the doctor. As there was no improvement the complainant joined in the hospital and on investigation reports the doctors advised the complainant to undergo surgery to her left knee. The complainant joined in the hospital on 27.03.2008 and intimated about the process of treatment undergone by her from time to time through her letter dt 27.03.2008 to the 2nd opposite Parties. The complainant remained in hospital from 27.03.2008 to 01.04.2008 and undergone treatment for total left knee replacement and incurred an amount of Rs.1,69,300/- under connectional rate.

Immediately after discharge from the hospital, the complainant submitted the claim forms along with all material papers in original as required by 2nd opposite Parties to process her claim under the above said health insurance policy. While, so the 2nd opposite Parties sent a letter dt 05.06.08 to the husband of the complainant to send all the papers relating to the entire treatment as if he had undergone treatment. In view of the fact, that the complainant’s husband no way connected to the present claim except the fact that the insurance policy was taken jointly. As the complainant’s personnel requests with 2nd opposite Parties went in vain and finally she received a letter dt 30.07.08 from the 2nd opposite Parties stating that her claim file was closed for the reason that the same falls under category exclusion No.4.3 of gold policy conditions against their promise in their letter dt 05.06.08. The complainant got issued legal notice to the opposite parties and the opposite parties received the same that of no use. It is further submitted by this complaint that having giving assurances to the complainant at the time of issuing policy the opposite parties being public sector undertaking and disallowed the claim of the complainant to avoid their liability under its policy certainly amounts to deficiency of service. Hence, this complaint.


3. The 1st opposite Parties filed their written version and the 2nd opposite Parties adopted the same.
The brief contention of the 1st and 2nd opposite parties are that the main and material allegation in the complaint are not true and correct and the complaint is not maintainable either in law or on facts. It is submitted that except the fact that the complainant and her husband took ”Individual Health Insurance Policy-Gold Policy”, the rest of the allegations are not true and correct. It is true that the policy was valid from 29.09.07 to 28.09.2008. It is further submitted by this 1st opposite Parties that as per the terms and conditions of the Health Insurance Policy obtained by the complainant and her husband, exclusory No.4.3 i.e “Joint replacement due to degenerative condition/age related OSTEORATHRITS” during the first two years as such for the first two years commencing from 29.09.2007 the exclusion under 4.3 of the gold policy condition is applicable. The 1st opposite Parties further submitted that the complainant sent the letter dt 27.03.2008 to the 2nd opposite Parties stating that she approached Krishna Institute of Medical Sciences and Dr.A.V.Guruva Reddy advised her to undergo left knee surgery. It is further submitted that complainant wrote a letter dt 29.03.2008 stating that she underwent surgery on 28.03.2008. It is further submitted that the claim form was submitted only on 09.05.2008 by the complainant. Further it is submitted that the 2nd opposite Parties sought the opinion of Dr.A.V.Ramanarayana of Rajahmundry for scrutiny an expert opinion dt 31.05.2008 and the same filed, in that the said doctor opined that this disorder may not develop with short period that too with that much severity requiring total replacement. On that this 2nd opposite Parties sent the letter dt 05.06.2008 to the complainant along with and replied vide letter dt 16.06.2008.

It is further submitted that the 2nd opposite Parties carefully scrutinize the entire claim file including expert opinion and concluded that the claim of the complainant comes under exclusion No.4.3 of Gold Policy condition. The complainant’s claim is also forwarded to the higher authority i.e The Divisional Office, Eluru for further scrutiny and final decision. It is submitted that the Divisional Office, Eluru endorsed the repudiation made by the 2nd opposite Parties and after receiving conference the 2nd opposite Parties repudiated the claim of the complainant vide letter dt 30.07.2008 and there is no deficiency of service on the part of the opposite parties. Hence, the complainant is not entitled for any of the claim amounts or reliefs claimed in her complaint and the Hon’ble Forum may be pleased to dismiss the complaint with costs.

4. Heard both sides. The complainant filed written arguments.

5. Points to be considered in this case are that;

1. Whether there is any deficiency in service on the part of the opposite parties?
2. Whether the complainant is entitled for the claim amounts and other
reliefs asked for? If so, to what extent?

6. Exs.A.1 to A.13 are marked on behalf of the complainant and Exs.B.1 to B.11 were marked for the 1st and 2nd opposite parties.

7. Admitted facts in this case are that the complainant herein obtained individual health insurance policy for Rs.1,50,000/- from the opposite parties vide policy No.150605/48/07/97/00000552 under Ex.A.1=A.13 and the same is in force from 29.9.2007 to 28.9.2008 on payment of Rs.3,455/- towards premium amount. The complainant’s husband also obtained the policy for Rs.2,50,000/- along with the complainant on payment of Rs.5,436/- towards premium amount. As such the complainant undergone tests under the supervision of Dr A V Guruva Reddy at KIMS, Secunderabad on 11.2.2008 and 12.2.2008 vide Ex.A.2=Ex.B.4, after perusal of the test reports the Doctor advised the complainant to get prepare for surgery and conducted surgery to the complainants left knee replacement on 28.3.2008 vide Ex.B.4 and the same was informed to the opposite parties under Ex.B.1, B.2 letters Dt.27.3.2008 and 29.3.2008 respectively. The complainant’s husband preferred claim with the opposite parties for medical expenses vide Ex.B.3=Ex.A.7 Dt.9.5.2008. On that the 2nd opposite party wrote a letter Dt.5.6.2008 vide Ex.B.6 to the complainant asking him to supply medical treatment undergone at Nidadavole prior to surgery at KIMS. Ex.B.8, B.9 are the inter Departmental letters with regard to repudiation of claim and the claim of the complainant was repudiated vide Ex.B.10 Dt.30.7.2008. Ex.B.11 is the schedule and premium certificate including exclusion clauses.


8.POINT NO.1: The case of the complaint is that though she obtained individual health policy from the opposite parties and the same is in force from 29.9.2007 to 28.9.2008, the opposite parties repudiated her claim for medical expenses incurred during surgery by her for left knee replacement on 28.3.2008 and the reason stated by the opposite parties for repudiation of her claim under exclusion clause 4.3 of Gold policy conditions is not sustainable.
Whereas, the opposite parties contended that the surgery for replacement of left knee falls under exclusion clause vide clause No.4.3 during the first two years of the operation of policy and so the complainant herein is not entitled for claim amount towards medical expenses incurred by her during surgery.

On perusal of the entire record it was found that the complainant and her husband obtained Mediguard policy in the previous year also vide policy No.150605/48/06/12/00001537 for the period from 29.9.2006 to 28.9.2007 under Ex.A.10. The present Mediguard policy vide Ex.A.1=A.13 is in continuation to the earlier policy and the same was also noted by the opposite parties on the face of policy contained in Ex.B.4. Further, it was observed that the opposite parties obtained Ex.B.5 opinion Dt.31.5.2008 in which the said doctor stated that the disease is “Osteo Arthritis left knee, a degenerated disorder and is a preexisting one” and basing on that opinion the opposite parties repudiated the claim of the complainant. The complainants contention is that the said doctor who issued Ex.B.5 opinion is not a treating doctor and orthopedician, but he is only a physician. It was found that the said opinion obtained by the opposite parties was not supported by any affidavit by that doctor.
Further, it was also observed that as per the Radiologist impression in page No.20 under Ex.B.4 showed that “features suggestive of early degenerative Osteo Arthritis both knee joints” which means that it is in the beginning stage. So, there is no force in the contention of the opposite parties that the disorder of the complainant is a preexisting one prior to the commencement of the policy mentioned in the 2nd page of their letter vide Ex.B.8 and repudiation of the claim on that reason. Further, it was also observed that Ex.A.12 medical certificate Dt.20.9.2007 issued by the Medical Officer, Primary Health Centre, Dowleswaram certifying that the complainant is fit for normal routine outdoor work, and the same was submitted to the opposite parties at the time of renewal of policy, basing on this certificate only the opposite parties issued the Individual health insurance policy. If the opposite parties have any doubt with regard to preexisting disease in case of aged insured, it is their responsibility to conduct all kinds of tests by their panel doctors.
It was further observed that Ex.B.11 filed by the opposite parties contained only three papers and it appeared that Gold policy conditions were attached. Whereas, Ex.A.11 prospectus issued by the opposite parties under Mediguard Individual insurance policy contained different exclusion clause under 4.3 and about the renewal of the policy under Clause.14, which was signed by the complainant herein on 19.9.2007. Further the opposite parties did not file the proposal form pertaining to the complainant and her husband to the reasons best known to them. So, we are in the considered opinion that the opposite parties issued a different prospectus with different exclusion clauses at the time of issuance of policy and repudiated the claim of the complainant with a different exclusion clause under Mediguard Gold policy condition and so, the 2nd opposite party committed mistake at the time of renewal of policy pertaining to the complainant and in fact the officials of the opposite parties are at fault. Hence, it is not fair on the part of the opposite parties to repudiate the claim of the complainant.
As per exclusion clause No.4.3 contained in Ex.A.11 did not say anything about joints replacement and it only says about preexisting disease. In the present case the disease was not proved as preexisting one as the opposite parties failed to produce any cogent evidence that the complainant undergone treatment for the said knee pains prior to obtaining the individual health policy. It was also observed that as per the exclusion.14 under Ex.A.11 “if the policy is to be renewed for enhanced sum insured, then the restriction as applicable to a fresh policy will apply to additional sum insured as if a separate policy has been issued for the difference”.

The complainant filed five citations in support of his case, out of which only thee citations are relevant to the facts and circumstances of the present case.

1)SC.7135/2007, 2007(3) ALD 74 (SC) between National Insurance Company Ltd Vs Ishar Dhas Madan Lal, wherein it was held that; “There may be an express clause excluding the applicability of insurance cover. Wherever suich exclusionaly clause is contained in a policy, it would be for the insurer to show that the case falls within the purview thereof. In a case of ambiguity, it is trite, the contract of insurance shall be construed in favour of the insured”.
2)AIR 2007 Supreme Court 2556, between United India Insurance Co Ltd Vs M/s Great Eastern Shipping Co Ltd, where in it was held ; “Insurance Act (4of 1938), Pre – Insurance policy – Terms used _ Interpretation – Intention of parties has to be kept in view – If intention subserves terms and that used – Full and extended meaning should be given to terms used”.
3)2009 ACJ 157 National Insurance Company Ltd Vs B D Lalit and others, where in it was held; “Insurance – Meciclaim policy – Renewal of – Exclusion of ailment – Insurance company had allowed the claim of the insured when he suffered heart ailment during the subsistence of original policy – Insurance Company renewed the mediclaim policy excluding heart related problems – Insured underwent angioplasty for removal of blockage in arteries and insurance company repudiated the claim on the ground that heart related problems were excluded from the policy – Insured alleged that exclusion has been done without his knowledge, notice and consent – Guidelines issued by General insurance Corporation direct insurance companies to renew earlier policies without inserting exclusion clauses for expenses of ailments which were not excluded in original polices – Whether insurance company could exclude coverage of heart ailment from policy while renewing earlier policy – Held no ; policy has to be renewed on the existing terms and conditions”.

With the discussion held supra; we are in the considered opinion that the complainant herein is entitled for claim for medical expenses incurred by her during the surgery for Left knee replacement. However, as per the exclusion No.14 under Ex.A.11 the complainant is entitled only for Rs.1,00,000/- towards claim because the complainant renewed her policy by enhancing the previous policy amount to Rs.1,50,000/-. Though the complainant claimed an amount of Rs.1,69,300/- by filing consolidated bills under Ex.B.4, she is entitled for Rs.1,00,000/- only as per exclusion Clause No.14 under Ex.A.11.

9.POINT NO.2: In the result, the complaint is allowed directing the opposite parties to pay an amount of Rs.1,00,000/- (Rupees one lakh only) with interest @9% P.A from the date of repudiation i.e 30.7.2008 till realization. We further direct the opposite parties to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint.