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Thread: Oriental Insurance

  1. #151
    adv.singh is offline Senior Member
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    Default Oriental Insurnace

    Ex. Pet. No. 191 of 2009 Decided on 4.1.2010.

    M/s A.B.Tools Private Limited,

    Plot No.7-8, Sector-III,

    Parwanoo, District Solan, H.P.

    ....D.H.

    Versus

    1. Oriental Insurnace Company Limited,

    Registered Office : Oriental House,

    A-25/27, Asaf Ali Road, New Delhi-110002.

    Through its Chairman-cum-Managing Director.



    2. The Regional Office,

    Oriental Insurance Company Limited,

    LIC Building, IInd Floor, Jagadhari Road,

    Ambala Cantt-133001.

    Through its Regional Manager.

    3. The Divisional Office,

    Oriental Insurance Company Limited,

    Mythe Estate, Kaithu, Shimla-3.

    Through its Divisional Manager.
    …...J.Ds.

    Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

    Hon’ble Mrs. Saroj Sharma, Member.

    Hon’ble Mr. Chander Shekher Sharma, Member.

    Whether approved for reporting ?
    For the D.H. Mr. Peeyush Verma, Advocate

    for the D.H.

    For the J.Ds. Mr. Deepak Bhasin, Advocate

    for the JDs .
    ORDER

    Justice Arun Kumar Goel (Retd.) President.

    M.A.No. 1/2010.

    Amount tendered with this application is ordered to be deposited with Punjab National Bank, Kasumpti, Shimla-171009.

    1. After the cheque is encashed, office is directed to remit the amount to the D.H.-Co. At this stage Sh. Verma, learned counsel for the D.H. stated that his client has not withdrawn any amount that is stated to have been deposited by the J.Ds as ordered by National Commission as his client is fully satisfied with the amount that is ordered to be remitted today.

    2. In view of the aforesaid statement this execution is dismissed as fully satisfied.

    3. Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules.

  2. #152
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    Appeal No. 16/2008.

    Date of Decision 4.1.2010.
    In the matter of:

    1. Smt. Ganga Thakur wife of late Sh Inder Singh;

    2. Smt. Gauri Devi wd/o late Shri Puran Chand;

    3. Master Sachin Thakur son of late Sh. Inder Singh;

    4. Master Sahil Thakur S/o late Sh. Inder Singh;

    5. Master Sanchit son of late Sh. Inder Singh, appellants

    Nos.3 to 5 being minor sons through their mother and

    natural guardian Smt. Ganga Thakur W/o Sh. Inder Singh

    appellant No.1.

    All R/o Village Kothi, PO Oachghat,

    Tehsil & District Solan, HP.

    … … Appellants.

    Versus

    The Oriental Insurance Company Limited, through its

    Branch Manager, The Mall, Solan, HP.

    … … Respondent.

    Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

    Hon’ble Mrs. Saroj Sharma, Member.

    Hon’ble Mr. Chander Shekher Sharma, Member.
    Whether approved for reporting? Yes.

    For the Appellants.: Mr. Pawan Kaprate, Advocate.
    For the Respondent. Mr. Narinder Sharma, Advocate.

    O R D E R

    Justice Arun Kumar Goel (Retd.), President (Oral).

    Appellants are aggrieved from the order passed by District Forum Shimla, Camp at Solan, HP, dated 14.12.2007, whereby Complaint No. 54/2004 filed by their late predecessor Sh. Inder Singh has been dismissed. Admitted position giving rise to this appeal is, that vehicle bearing registration No. HP-14-6896 was duly insured under a valid policy of insurance with the respondent, between 9.12.2002 to 8.12.2003, for a sum of Rs. 1.60 lacs.

    2. Now the dispute starts. As according to the respondent vide Annexure OP-1 dated 12.12.2002 deceased approached the Solan Branch of the respondent to cancel the policy in question. In this context it may be appropriate to notice that cover note Annexure B was issued on 9.12.2002 after the vehicle had been inspected at Nauni at 7:30 PM. Total payment of Rs. 4245/- was made as per this cover note in cash. Cover note having been issued by the respondent-insurance company by its authorized agent after receipt of cash premium, is not in dispute. Further according to the respondent after the receipt of Annexure R-1, sum of Rs. 3258/- was sent vide cheque Annexure OP-II, dated 27.12.2002. This cheque was forwarded alongwith letter Annexure OP-III, dated 31.12.2002 to the deceased. There is no material whatsoever produced on record to show as to when Annexure OP-III, and by what mode it was sent alongwith the cheque as alleged by the respondent. Likewise, there is nothing on record again placed by the respondent as to when this letter was refused by the deceased. According to us this would have gone a long way to enable us to come to a correct conclusion in this appeal in the face of defence of the respondent while contesting the complaint.

    3. Further case of the respondent is that the premium was short, as such on this ground also sum of Rs. 3258/- was returned to the deceased. As already observed premium was paid in cash. It is not the case of the respondent that the sum received by its authorized agent vide Annexure B filed with the complaint was either deficient or in any manner less than the due premium payable. In these circumstance we are of the view that the insurance premium paid vide Annexure B was deficient is being noted to be rejected. In case it was so, how and in what manner the deficiency was worked out. Not only this when cash receipt of Rs. 4245/- is admitted by the respondent vide cover note, then how Rs. 3258/- was worked out and sent as claimed by the respondent in its defence, again there is no material on record placed by it.

    4. Now comes the question as to whether the policy had been got cancelled by the deceased Shri Inder Singh Thakur, vide Annexure OP-II on 12.12.2002. If we accept this stand urged on behalf of the respondent, this appeal has to be dismissed.

    5. A perusal of Annexure OP-1 the so-called cancellation letter dated 12.12.2002, and all other documents placed on the record prima facie, as well as are clear to the naked eye, that they are not signed by the person who has filed and signed the complaint and who has signed the vakalatnama, as well as affidavit sworn in support thereof.

    6. In addition to this, there is other document Annexure OP-IV sent by the complainant through speed post as well as registered post to the respondent-insurance company on this document signature of the deceased also do not match with those on the cancellation letter Annexure OP-I. In this behalf we may also observe that the practice of the courts venturing into comparison of handwriting/signatures is deprecated by the Hon’ble Supreme Court. However fact remains, that the documents relied upon by the parties when seen, clearly negate the stand of the respondent which is solely based on Annexure OP-1. In these circumstances we are constrained to hold that Annexure OP-I the so-called cancellation letter made basis to built up its defence by the respondent, and accepted by the District Forum below while rejecting the claim cannot be accepted on its face value.

    7. In addition to this in paragraph 4 of the complaint specific stand of the deceased was that the so-called cancellation letter of insurance cover in question is a forged and fabricated document by the respondent. As he had never sent it. On this particular and specific pleading of the deceased, there is no specific denial. Assuming for the sake of argument that the cancellation letter had been sent by him, as is the case set out by the respondent while contesting the complaint, fact remains how Annexure OP-1 was dealt with till 27.12.2002 when cheque was prepared, and is alleged to have been sent alongwith Annexure OP-III, there is again no evidence. We will go to the extent of holding that there is every possibility of both these documents having not been sent is also there.

    8. In these circumstances, the plea of the respondent that the complainant refused to accept the cheque alongwith letter sent to him is without any evidence worth the name. In our opinion, the best evidence would have been the dispatch register and postal receipt vide which the cheque and letter were sent by the respondent. These documents have not been produced by the respondent.

    9. Faced with this situation Mr. Sharma learned counsel for the respondent submitted, that his client was justified in repudiating the claim because policy was cancelled at the behest of the deceased. In these circumstances his clients were justified in repudiating the claim, and according to him District Forum below was justified when it dismissed the complaint. This plea has no substance for the view, that we have taken on preceding paras on this aspect of the case.

    10. Further submission urged by Mr. Sharma was, that though theft had taken place on the intervening night of 31.12.2002/1.1.2003, but the matter was reported by his client on 14.1.2003 after a gap of 2 weeks. This submission does not improve the case of the respondent in the face of the FIR having been lodged by the deceased on 2.1.2003 at Police Station Sadar, Solan vide FIR No. 2/2003 regarding theft of the vehicle. No doubt deceased Shri Inder Singh Thakur, the owner of vehicle who has filed the complaint, should have intimated the respondent at the earliest, but that does not mean that in the face of Annexure A, copy of FIR, the delay should be made a ground to reject the complaint. It is not the case of the respondent that Annexure A is lodged on 2.1.2003.

    11. Catching the last straw, Mr. Sharma further pointed out that his client accepted what was contained in the Annexure OP-1 because before getting the insurance done, there was no proposal form filled in by the deceased-complainant therefore, according to him no benefit can be taken to the signatures of deceased Shri Inder Singh not tallying with those the other documents being there on the complaint file filed by the parties. Suffice it to say in this behalf, that it is for the respondent to get the proposal form filled in, in our opinion if it has filled to do the needful, or else it has to bear all the consequences also. From record it is clear that this is a case of first insurance and not of renewal of an existing policy. In latter case non filling up of the proposal form could be considered.

    12. No other point was raised.

    Now comes the question as to how to deal with this case for the view that we have taken on evidence on the complaint file. Reason being that the District Forum below was not justified in dismissing the complaint in a cryptic and slipshod manner, District Forum below does not appear to have thoroughly marshalled the facts as well as scanned the complaint file in its right perspective. Admittedly this is a case of the theft of the vehicle, therefore according to us appellants are entitled to be indemnified in the sum of Rs. 1.60 lacs. Ordered accordingly. In addition to this they are further held entitled to interest 9% per annum from the date of filing of the complaint, i.e. 5.3.2004 till the date of payment/deposit whichever is earlier. Appellants are also held entitled to cost of this appeal as well as of the complaint which we quantify in lump sum of Rs. 5,000/- Since this is a case of theft of insured vehicle and FIR stands registered vide Annexure A under FIR No. 2/2003, at Police Station Solan, appellants are directed to execute letter of indemnity as well as power of attorney in favour of the respondent, so that in case the vehicle is traced by the police, it is entitled to deal with it as its absolute owner. At the same time appellants shall also execute Form No. 35 in favour of the respondent-insurance company to deal with the vehicle in the event of its being traced out. In case any other or further document(s) is required to be executed, then the appellants shall do the needful at the cost and expense of the respondent-insurance company. Complaint was originally filed by Mr. Inder Singh husband of Smt. Ganga Thakur, father of respondent Sachin Thakur, Sahil Thakur, Sanchit Thakur and son of Gauri Devi. He died during the pendency of the complaint. Application to substitute the appellants was allowed by the District Forum on 18.5.2007. Neither the office of District Forum below, nor the President of District Forum have bothered to carry out necessary correction in the record. Since the appellants are class-I heirs of the deceased Inder Singh Thakur owner of the vehicle, they shall be entitled to share the amount of compensation with interest as well as cost in equal shares. Appeal is disposed of in these terms after setting aside the order of District Forum Shimla, Camp at Solan, in Consumer Complaint No. 54/2004 dated 14.12.2007.

    Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.

  3. #153
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    FA.No.392/2007 AGAINST C.C.No.104/2006 DISTRICT FORUM, KURNOOL .

    Between:

    Smt.Kanisetty Lakshmi Devi,

    W/o.late Kanisetty Ranga Swamy, Hindu,

    Aged about 41 years, Coolie,

    R/o.Jaladugam Village,

    Peapully Mandal, Kurnool District. Appellant/

    Complainant

    And

    1. The Secretary, Primary Agricultural

    Co-operative Society, Jaladurgam Village,

    Peapully Mandal, Kurnool District.

    2. The Divisional Manager, The Oriental

    Insurance Company, Bhupal Complex,

    Kurnool..

    3. The General Manager, K.D.C.C.Bank,

    Opp:Govt. Eye Hospital, Kurnool. Respondents/ Opposite parties.

    Counsel for the Appellant: Mr.G.Allabaksh

    Counsel for the Respondents. Smt.K.Sesharajyam-R1 & R3.

    Mr.Katta Lakshmi Prasad-R2.

    QUORUM: SMT.M.SHREESHA, MEMBER

    &

    SRI K.SATYANAND, MEMBER

    MONDAY, THE EIGHTEENTH DAY OF JANUARY,

    TWO THOUSAND TEN



    (Typed to the dictation of Sri K.Satyanand,Hon’ble Member)
    ***

    This is an appeal filed by the unsuccessful complainant assailing the order of the District Forum which dismissed her complaint solely on the ground of limitation.

    The facts that led to filing this appeal are briefly as follows:

    The complainant is the wife of late Kamisetty Rangaswamy. On 28-11-2000, the said Rangaswamy met with an accident in which he was electrocuted. Soon he succumbed to the said injury in the accident while he was being taken to the hospital. The police registered a crime under Section 174 Cr.P.C. on 29-11-2000. Later the case was closed. It seems during his life time the said Rangaswamy being a member of opposite party No.1 society borrowed a loan and in that connection he also paid an amount of Rs.21/- as premium for accidental death benefit insurance policy. The risk was covered for the year 2000-2001. It is opposite party no.2 that issued the said policy. Thus the said policy was in force by the date of his death. Immediately after the accident, the complainant claimed to have informed about the death of her husband to opposite party No.2 through opposite party No.1 by telegram and later submitted all the documents along with the claim form. It seems later the complainant approached opposite party No.2 several times for the release of the insurance benefits. Ultimately vexed by the attitude of opposite party No.2 she finally got issued legal notice on 27-7-2005 demanding the insurance amount owing to the death of her husband. But the opposite party no.2 did not give any reply or settle the claim even after receiving the said notice. As such the complainant approached the Forum seeking justice as being a victim of deficiency in service on the part of opposite party No.2. She claimed not only the insurance amount of Rs.1,00,000/- with interest at 12% p.a. but also compensation of Rs.15,000/- and Rs.3,000/- towards costs.

    The opposite party No.1 filed written version contradicting the very factum of accident and commenting on the lack of a certificate from APSEB within the stipulated time. They also questioned the competence of the complainant to file the complaint omitting to add her children and parents of the deceased. In any view of the matter, opposite party no.1 contended that it cannot be roped into joint and several liability along with opposite party No.2, the insurance company. It is however admitted by opposite party No.1 that late Rangaswamy was its member, a borrower from it and was covered by the scheme of accidental death benefit insurance policy.

    Opposite party No.2 filed separate version taking various pleas, including total denial of the very accident itself. It is however admitted that the death of the complainant was intimated to the opposite party by a telegram and that the insurance company had promptly sent an intimation along with the claim form to the opposite party No.1 requiring of them to send the claim form along with important documents as FIR, police panchanama, postmortem report, death certificate etc., On the other hand opposite party No.1 obtained the signature of the complainant and sent the claim form to it without any details as to how the death of the deceased occurred. As the complainant did not submit those papers, it had no other go except to wait for those documents and ultimately close the claim. Opposite party No.2 found fault with opposite party No.1 for not properly guiding the complainant and paving way for processing of the claim. It also urged that even the post mortem did not bear the testimony to the factum of electrocution and the cause of death being the same. The opposite party No.2 chose to call the whole complaint as a cooked up story.

    Opposite party No.3 also denied the basic facts including the competence of the complainant to file the complaint.

    In support of her case, the complainant filed her own affidavit and relied upon documents marked as Exs.A1 to A8. On the other hand, the opposite parties also filed affidavits and relied upon documents marked as Exs.B1 to B8. Interrogatories were also exchanged obviously to serve the purpose of the cross-examination.

    On a consideration of the evidence adduced on either side, the District Forum dismissed the complaint solely on the ground of limitation.

    Aggrieved by the said order, the complainant filed the present appeal submitting in the facts of the case, the limitation had never started to run as opposite party no.2 hither to did not take a decision on the claim. So the District Forum erred in thinking that the appellant relied upon her own legal notice to enlarge the period of limitation while in fact no limitation had ever started to run.

    Heard both sides.

    The points that arise for consideration are:

    1) Whether the District Forum was right in dismissing the complaint solely on the ground of limitation?

    2) Whether the complainant could make out any case of deficiency in service on the part of the opposite parties?

    3) To what result?

    The basic facts attracting the jurisdiction of the District Forum are amply made out not only by affidavit evidence and documents but also the admissions. The complainant is the wife of the insured. The fact remains that the husband of the complainant was a villager afforded an opportunity to derive benefit from the opposite party No.1 institution and when the scheme of things provided for insurance protection for such illiterate simpletons, it is the bounden duty of the opposite party No.1 institution which had a truck with opposite party No.2 to afford protection of insurance coverage to the members/borrowers by way of group policy, it is incumbent upon opposite party No.1 also to disclose as to what was the nomination arrangement they made. In as much as the widow of the deceased insured filed this complaint, if any, benefit accrues to the complainant by virtue of the litigation, she would be relegated to the position of a trustee for all the actual beneficiaries including the children and the aged parents if any of the insured. The opposite parties including opposite party no.1 which definitely at the contact level with its members did not choose to disclose if the insured had left any other successors or legal representatives apart from the complainant and on the other hand they had taken a reckless random plea that the complainant was not competent to maintain the complaint on the ground of the existence of imaginary L.Rs. other than the complainant. If really, any L.Rs. exist definitely the complainant would be held liable as the monies that she derives in this litigation, she is bound to hold for the benefit of the entire group of L.Rs. of the deceased. This question need not detain us. However, what strongly weighed with the District Forum was that the complaint was barred by limitation. This conclusion is also totally unwarranted for the simple reason that the final decision of the insurance company which was in a position to take a decision on the claim had never exercised its jurisdiction to far so as to trigger the onset of the period of limitation. In other words, the limitation never started to run as after all it had to be reckoned from the date of arisal of the cause of action and the only tangible proof of arisal of cause of action would be the order of the repudiation by any of the opposite parties. All the opposite parties remained silent and rendered themselves scarce for accountability in the matter of obligation that they owe to the heirs of the deceased. The District Forum is wrong in thinking that the complaint is barred by limitation. It is only on account of lethargy on the part of the opposite parties and being vexed with their indifference to the family of the deceased that the complainant had taken the initiative, as obviously borne out from the averments, to file this consumer dispute. This filing by itself after a long wait cannot be characterized as latches on her part as it was a disperate step taken as a last resort and this overt act would not alter the course of law of limitation which has got its own rules especially the one that kindles it only with the repudiation of the claim which did not happen at all in this case. So this is a case more or less of an imputation against the opposite parties for their inaction and abdication of duty which is the hallmark of deficiency in service as after all, all the three owe the financial service to the deceased and his family.

    In the present case the deficiency alleged against the opposite parties is very explicit in the pleadings as also in the documents. Opposite party No.1 is the society that had undertaken the service of funding the activities of the deceased calculated to make out livelihood by advancing loans and as a measure of protecting the family of the deceased from the financial ruin as also helping itself for an easy recovery of the loan advanced. It secured the insurance coverage by making an arrangement with opposite party No.2. Opposite party No.2 itself blamed opposite party no.1 for not putting up the claim nor guiding the claimant in submitting the claim properly with proper documentation. Thus the case against opposite party no.1 is to a large extent spoken out by opposite party No.2 itself. Now coming to the liability of opposite party No.2, it is equally to be blamed as after all having undertaken to serve the insured with its services, it remained indifferent even after admittedly receiving a telegram from opposite party No.1 about the death of the insured. Both opposite party No.1 and opposite party No.2 are under an obligation to discharge their duty that they owe by virtue of the relationship they established with the insured no doubt variously. Both of them abdicated their functions and left the family of the deceased in a lurch. As far as opposite party no.3 is concerned, the direct nexus between the claimant and the said opposite party is not made out except suggesting that opposite party No.3 could be the apex body having some control over opposite party No.1 but such kind of vague formulation cannot justify the roping in of opposite party no.3. Yet the deficiency in service on the part of opposite parties 1 and 2 is very much writ large on the face of the whole episode. The inaction on the part of opposite parties 1 and 2 constitutes the height of deficiency in service. Years rolled by after the accident and the family of the insured is left without any succor though all the conditions requisite for release of the insurance benefit are fully satisfied if one goes by the documents tendered in the evidence in the present litigation. Ex.A1 is the First information report proving the factum of accident. The other documents Exs.A2 to A7 fully establish that the insured died in an accident. The insurance coverage is an admitted fact. The denial of the money due to the family of the deceased is actuated by the indifference of opposite parties 1 and 2. Each of them was under an obligation to act swiftly in the face of information about the death of the insured. This Commission is entitled to take judicial notice of the fact that the insured and his family hail from a remote village and they would answer the description of rustics. It is therefore in this context that the call of duty on the part of opposite party No.1 and 2 acquires all the more importance. Thus we have no hesitation to hold that opposite parties were clearly guilty of deficiency in service and therefore they cannot avoid the liability commensurate with the volume of deficiency. In this regard, we feel that the complainant and the family she represents is entitled to be compensated with a relief comprising the entire insurance amount plus reasonable interest thereon besides a reasonable amount by way of costs. As we are inclined to grant interest, there is no necessity of separately giving any compensation.

    In view of the findings turned out in the foregoing discussion, we feel that this is a fit case to allow the appeal and grant substantial relief to the complainant even while exhorting the complainant that she would receive the amounts in terms of the relief for the benefit not she alone but her children, through the deceased/insured if any, as also the aged parents of the deceased/insured, if living.

    Accordingly the appeal is allowed setting aside the order of the District Forum. As a natural consequence, the complaint is allowed directing the opposite parties 1 and 2 to jointly and severally pay to the complainant representing not only herself but also her children through the deceased as also the aged parents of the deceased, an amount of Rs.1,00,000/- (Rupees One lakh only) representing the insurance benefit with interest at the rate of 9% p.a. from the date of death intimation as per FIR, i.e. 29-11-2000 till the date of realization together with costs in a sum of Rs.5,000/- within six weeks from the date of receipt of this order.

  4. #154
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    Default Oriental Insurance

    FIRST APPEAL NO. :2040 OF 2005

    IN COMPLAINT CASE NO.:352 OF 2002

    DISTRICT CONSUMER FORUM :BEED.

    The Oriental Insurance Co.Ltd.,

    Yashodhan 2/13/24 Subhash Road,

    Beed,

    Through its Mumbai Regional Officer No.2,

    Oriental House, 7th floor, 7, Jamshedji Tata Road,

    Mumbai-20. …APPELLANT

    (Org.Opponent)

    VERSUS

    Mr.Murlidhar Malikrao Nalawade(died),

    Through his L.R.s
    1A. Smt.Sindhubai w/o Murlidhar Nalawade,
    1B. Shivaji S/o Murlidhar Nalawade,
    1C. Shahji S/o Muralidhar Nalawade,

    R/at Loladgaon, Sirasmarg, Tq.Gevrai,

    Dist.Beed. …RESPONDENTS

    (Org.Complainants)

    CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.

    Mrs.Uma S.Bora, Hon`ble Member.

    Present : Adv.Shri.Jayant Chitnis for appellant,

    Adv.Shri.M.M.Joshi for respondents.

    O R A L O R D E R

    Per Shri.S.G.Deshmukh Hon`ble Presiding Judicial Member.


    1. The present appeal is filed by Oriental Insurance Co.Ltd. against the judgment and order dated 31.08.2005 in complaint case No.352/02 passed by District Consumer Forum, Beed.



    2. Respondent/Org.Complainant`s case before the Forum is that, his jeep bearing No.MH-23E-1361 has been insured with the present appellant for sum assured of Rs.3,35,000/- for period 16.2.2000 to 15.2.2001. It is contended that on 21.7.2000 there was collision between jeep and truck. The jeep was completely damaged and complainant sustained loss of Rs.1,50,000/-. It is contended that friends of complainant were in the jeep at the time of accident. Offence was registered at Beed Gramin Police Station. Complainant preferred the claim which was repudiated on the ground that at the time of accident jeep was used for hire and reward which is breach of terms and conditions of the policy. Thus complainant approached the Forum.
    3. The present appellant appeared before the Forum and resisted the claim on the ground that they have rightly repudiated the claim as the jeep was carrying fare paying passengers at the time of accident and thus committed breach of terms and conditions of policy.

    4. The Forum below after going through the papers and hearing the parties allowed the complaint and directed appellant to pay Rs.96,000/- with interest @ 6% p.a. Forum also directed appellant to pay Rs.5,000/- towards mental agony and cost.



    5. Being aggrieved by the said judgment and order passed by the District Forum, Beed, Oriental Insurance Co.Ltd. came in appeal.



    6. Notices were issued to the appellant as well as respondents. Learned counsel Shri.Jayant Chitnis appeared on behalf of appellant whereas learned counsel Shri.M.M.Joshi appeared on behalf of respondents. We heard both the counsels. Learned counsel Shri.Chitnis submitted that the claim was rightly repudiated on the ground that as jeep was found carrying fare paying passengers at the time of accident and thus there was breach of terms and conditions of the policy. Further he submitted that surveyor was appointed who assessed the loss sustained to the jeep. He submitted that though surveyor had assessed the loss to the tune of Rs.96,000/- complainant actually got repaired the vehicle and spent amount of Rs.46,500/- only. He submitted that bill check report is on the record. Complainant had produced the bills to the extent of Rs.46,500/- only. According to him Forum ought to have considered the bill cheque report and ought to have granted amount accordingly. He further submitted that F.I.R. is on record. F.I.R. mentions that the jeep was found carrying fare paying passengers. Thus, from F.I.R. it is found that there was breach of terms and conditions of the policy. If the Forum is to grant the claim it should have been granted on non-standard basis i.e. 75% of the loss.

    7. On the other hand, learned counsel Shri.Joshi for the respondents submitted that Forum has rightly held that complainant is entitle for the claim as carrying fare passengers in the vehicle is not fundamental breach of terms and conditions of the policy. He further affirmed that Forum rightly granted the damage sustained to the jeep. According to him, only because the bills can not be produced by the complainant before the surveyor damage sustained to the jeep can not be refused.



    8. We perused the papers and gave our anxious thoughts to the arguments advanced by both the counsels. It appears from the F.I.R. that jeep at the time of accident carried fare paying passengers thus there was breach of terms and conditions of the policy. It also be mentioned that it is not the case of insurance company that accident took place because of so called fare paying passengers. There is no nexus between cause of accident and fare paying passengers carried in the jeep. Forum has rightly considered this aspect and rightly held that complainant is entitled for damages.


    9. Surveyor`s report is on record. Surveyor had assessed the loos to the tune of Rs.96,000/-. It is true that bill check report is on the record which mentions that complainant produced bills to the extent of Rs.46,500/-. It is to be noted that surveyor was appointed by insurance company who assessed the loss of the jeep to the tune of Rs.96,000/-. Thus it is certain that jeep was damaged and sustained the loss to the tune of Rs.96,000/- only because repairs bills could not be produced by complainant, Bill check report is shown to the extent of Rs.46,500/-only. When the jeep had sustained loss to the tune of Rs.96,000/-, it is incumbent on the insurance company to reimburse the actual damages sustained. It may be possible that complainant may not be in position to get repaired the entire jeep at that time. When the bill check report was prepared that does not mean the jeep had not sustained loss to the tune of Rs.96,000/-. Insurance Company is to reimburse the loss sustained to the jeep in question. We are of the view that loss sustained to the jeep has to be reimbursed by insurance company irrespective of bill check report.

    10. We have mentioned that F.I.R.shows that jeep was found carrying fare paying passengers at the time of accident. Complainant is entitled for the damages on non-standard basis i.e. 75% of the loss. Complainant is entitled for loss of Rs.72,000/-. Accordingly, we allow the appeal in part. We pass the following order.


    O R D E R


    1. Appeal is partly allowed.

    2. Appellant to pay Rs.72,000/- instead of Rs.96,000/- with interest @ 6% p.a. from the date of complaint.

    3. Rest of the order is maintained as it is.

    4. No order as to cost.

    5. Pronounced and dictated in the open court.

    6. Copies of the judgment be issued to both the parties.

  5. #155
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    Default Oriental Insurance

    FIRST APPEAL NO. :2303 OF 2005

    IN CONSUMER COMPLAINT NO.:12 OF 2002

    DISTRICT CONSUMER FORUM :JALNA.

    Sow.Gayabai Shiva Bawane,

    R/o Paniwesh, Kadrabad,

    Jalna. …APPELLANT

    (Org.Complainant)

    VERSUS
    1. Royal Gas Agency,

    Mutha Building, Behind C.T.M.K. Gujrathi

    Vidyalaya, Jalna.

    2. The Oriental Insurance Co.Ltd.,

    Near D.C.Petrol Pump, Sarojinidevi Road,

    Jalna. …RESPONDENTS

    (Org.Opponents)

    CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.

    Mrs.Uma S.Bora, Hon`ble Member.
    O R A L O R D E R

    Per Shri.S.G.Deshmukh Hon`ble Presiding Judicial Member.

    Notices were issued to the appellant as well as respondents. None appeared on behalf of appellant. Learned counsel Shri.Sayyad Moin appeared on behalf of respondent No.1. None appeared on behalf of respondent No.2. It appears that, appellant is not interested in pursuing the matter. Appeal is dismissed in default.

  6. #156
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    Default Oriental Insurance

    Hasina Khatun aged 45 years

    W/o Mahamad Kazim

    At- Azad Basti, Po- Barbil

    Dist- Keonjhar ………. Complainant

    VERSUS
    1. Branch Manager,

    Oriental Insurance Co.Ltd

    Main Road Barbil

    At/Po/P.S- Barbil

    Dist- Keonjhar(Orissa)



    2. Divisional Manager

    Oriental Insurance Co.Ltd.

    At/Po- Udit nagar, Rourkela

    Sundargarh ………. Opp. Parties


    Advocate for the Complainant- P.K.Sahoo & Associates



    Advocate for the O.P.S- A.K.Pattnaik & Associates



    Date of Hearing Dt-22.05.2009 Date of Order Dt.17.11.2009



    AMT RASESWARI MOHANTY I/C PRESIDENT – The brief facts of the case are that



    The complainant is the owner of Mahendra Marshal Vehicle bearing Regd.No.OR-09D-0261 and the vehicle was insured through Oriental Insurance Co. Ltd. At it’s Barbil Branch and the Policy bearing No. 345506/31/2005/863 was valid from 13.07.2004 to 12.07.2005 for an IDV Rs. 3, 96,530/- under Private Car Package. The vehicle was hypothecated to Allahabad Bank at Barbil Branch as the complainant incurred loan from this Bank purchase the vehicle. That unfortunately while on 11-09-2004 the son of the complainant was going from Ranchi to Barbil at Nalighana some miscreants showing gun to the son of the complainant tied him in a nearby tree and taken away the vehicle and subsequently the son of the complainant had been recovered and the police drawn F.I.R when the son of the complainant was unconscious and after investigation police submitted final form. That thereafter with all the supporting documents and papers the complainant submitted claim form to the Insurance Company who appointed one S.P. Singh as surveyor for investigation and assessment of loss who assessed the loss of Rs. 3,35,530/-. But the Insurance Co. repudiated the claim on 26.02.2006 and so the complainant approached the local official of the Insurance Company (OP1) and on their advice the complainant lodged appeal/claim before Ombudsman, Bhubaneswar, which was also rejected on 10.04.2008. Being aggrieved by the actions of the Insurance Company the complainant filed this complaint for compensation of Rs. 4,96,450/- from the Insurance Co.(OPS) As they failed to render adequate services which is an example of malafide ,unfair trade practice and by that suffers from mental agony, physical stress and financial loss.



    On receipt of the notice the Ops (Oriental Insurance Co.Ltd.) filed written version. In version the Ops’ challenged the petition on the ground of maintainability and also bad for misjoiner and non-joinder of necessary parties and further lack of cause of actions against the Ops and refuted the allegations of deficiency in service causing mental agony and financial suffering and justified the repudiation of the claim of the complainant basing upon justifiable grounds. That the vehicle in question was used for hire and reward purpose which was violation of terms and condition of the policy, Then it was insured as private vehicle/ Car and the hirers were responsible for looting the vehicle on gunpoint, This fact was known from the investigation report of the surveyor deputed by the Insurance Co. and from the police report.Though the surveyor assessed the loss of Rs. 3,35,530/- the claim was repudiated on the reasons of violation of policy condition. Further the matter was appealed before the Insurance Ombudsman who rejected the claim of the complainant.So this petition not maintainable as hit by “Resjudicata” but the basic facts of case such as ownership of the vehicle and validity of Insurance Policy and accident and damage of the vehicle and loss assured by the surveyor as Rs. 3,35,350/- etc. area admitted by the Ops.



    Heard the learned counsel of the respective parties, perused the documents filed on behalf and the materials available on records.



    The points for consideration are (1) whether the petition is maintainable. (2) whether the petition suffers from lack of cause of action and misjoinder and non-joinder of necessary parties. (3) Whether the petition is hit by Rejudicata. (4) Whether the Ops are deficiency in service and (5) If, so whether the complainant is entitled for compensation and to what extent.



    On the above facts and circumstances, the admitted facts are that the complainant was the owner of vehicle OR-09D-0261 and the vehicle was insured with the Insurance Co. of the Ops and during the period of validity, the vehicle was stolen and thereafter the concerned Police and Insurance Co. were informed. The matter was investigated by both and submitted reports.Surveyor assessed the loss to be of Rs. 3,35,530/- and then the complainant submitted claim form with supporting documents to the Insurance Co., the claim was rejected by the Insurance Co. of the Ops and also Insurance Ombudsman on the reasons of violation of policy condition.



    The learned counsel for the complainant relied on the decision reported in (2008) 40 OCR (SC) 642 (National Insurance Co. Vrs. Nitin Khandelwal) and that facts and circumstances of the decision is almost similar to the fact and circumstances of the present case and the Hon’ble Apex Court in the decision held that “ In case of theft of vehicle, nature of use of the vehicle can’t be looked into and the Insurance Co. can’t repudiate the claim on that basis” and further it was held that “claim ought to be settled on non-standard basis and thus entitled for 75% of the sum assured. We find no reason to differ with the view taken by the Hon’ble Apex Court. In view of the above decision the point of maintainability of the petition/complaint and the cause of action against the Insurance Co. are answered in favour of the complainant as the petition filed on 15.07.2008 within time. i.e within the same year of the rejection of appeal to the Insurance Ombudsman on dt. 10.04.2008. So we hold that the complaint petition is maintainable and there is cause of action against the Ops( Insurance Company). Though the Ops, averred in written version that the petition is bad for misjoinder and non-joinder of parties that did not explain who are the parties to be joined or unnecessarily misjoined, hence it was not required to be considered.



    Further about the petition as hit by “Resjudicata” as the matter was finally decided by the Insurance ombudsman by the Ops. In this regards the complainant relied on a decision (Kamaleshwari Prasad Singh – V- National Insurance Co.Ltd) reported in 2005 CTJ (NCDRC) at page 747 in which it is held that “Role of Ombudsman is to investigate individual’s complaints against the mal-administration especially that of public Authorities. He does not discharge any judicial or quasi-judicial, function. Complainant may not accept his decision. He can take the rejection of his claim by the Insurer before a consumer forum, if he so like.” In view of the decision and agreed with the views taken we are of the opinion that the complaint is maintainable even if the claim decided by the ombudsman as the complainant is not satisfy with the decision and prayed for adjudication in the forum and as such not hit by “Resjudicata”.



    On the above facts and circumstances the complaint is maintainable and repudiation of the claim of the complainant is unfair trade practice and deficiency in service by the ops (Insurance Co.) and the complainant is entitled for compensation from the Ops who are liable for the same to the complainant.



    Though the complainant has claimed a sum of Rs. 4,96,430/- with onterest @ 12% per annum but there is no materials on records nor the complainant adduced any evidence to assess the exact quantum for compensation for mental agony and financial loss and other inconvenience caused but other facts and circumstances suggest that the complainant obviously have suffered from inconvenience and financial loss.



    On the above, we are not inclined to accept the amount of compensation prayed by the complainant but we are of the opinion that the complainant is only entitled to get the 75% of Rs. 3,36,350/- i.e. amount insured by the Insurance Co. which come to Rs. 2,52,260=50 p. and a consolidated sum of Rs. 20,000/- on other counts for mental agony, financial loss and costs of litigation as obviously the repudiation of the claim would have caused inconvenience and financial loss to the complainant and in total the OP- Insurance Co. has to pay a sum of Rs. 2,72,262=50 p to the complainant.



    Hence it is ordered and the OP – Insurance Co. is directed to pay a sum of Rs.2,72,262=50p to the complainant within one month of receipt of the order failing the entire amount will carry interest @ 8% per annum till final payment.



    Accordingly the case is disposal off.

    Order pronounced in the open court today i.e. on 17th day of Nov’ 2009 under my hand and seal of this forum.

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    Default Oriental Insurance

    Consumer Case No.: 24/2008.

    Date of filing : 04.07.2008.

    Date of final order : 20.11.2009.

    Present:

    A) Sri Saurish Chakraborty President.

    B) Smt.Swapna Kar Member.

    C) Sri Swaraj Kumar Biswas Member.

    Sri Dilip Kumar Agarwala,

    Son of Ram Saran Agarwala,

    Care of Sri Krishna Bastralaya,

    N. S. Road, Near Asha Talkies,

    Raiganj, District - Uttar Dinajpur. Complainant.


    versus

    1. The Oriental Insurance Company Limited,

    Represented by its Branch Manager,

    Raiganj Branch, Bidhannagar, N. S. Road,

    Raiganj, District – Uttar Dinajpur.



    2. The Medicare T. P. A. Services (I) Private Limited,

    Represented by its Managing Director,

    6, Bishop Lefroy Road, Kolkata – 700020. Opposite Parties.



    Judgment

    Date: 20.11.2009.



    The case of the Complainant in brief is that he along with his wife Smt. Sima Agarwal took a Mediclaim policy from the O.P. No. 1 / Insurer, which was valid from 22.12.2005 to 21.12.2006. The Complainant due to illness at first got himself admitted to Raiganj Sadar Hospital, where he had been from 19.02.2006 to 21.02.2006. Thereafter, he was referred to one doctor known Dr. Amitabha Roy Choudhury, Kolkata for better treatment. The fact about his illness and the treatment, he had been undergoing was duly communicated to the O.P. No. 2 on 20.02.2006. On the advice of Dr. Roy Choudhury the Complainant is admitted to one nursing-home named and styled Microlab on 22.02.2006. There several tests of the Complainant was done. He was discharged from that nursing-home on 28.02.2006 and the matter of treatment he has received from Dr. Roy Choudhury was communicated by letter dated 08.03.2006 to the O.P. N o. 2. At last the Complainant went to Bangalore and took treatment at a medical centre named BASAVANAGUDI E.N.T CARE CENTRE. In the same E.N.T. Care Centre he was operated Septoplasty with bil, Partial Inferior Turbinectomy on 14.03.2006. He has put forward his claim of disbursement of the medical cost to the O.P. No. 2, which has repudiated mentioning certain grounds. So this complaint has been filed praying for an award of Rs.40,001.80 (rupees forty thousand one and eighty paisa) only, which he incurred towards the treatment of his disease, Rs.50,000.000 (rupees fifty thousand) only as compensation for mental pain and sufferings and other reliefs, if any , to which he may be entitled under the law.

    Opposite Party No. 2 contested the claim application by filing one written version. Opposite Party No. 1 though appeared did not file any separate written version probably the fact to be mentioned by the Opposite Parties are likely to be the same. The case of the Opposite Party No. 2 has been mentioned in last part of the Para-8 of its written version. Here it states that claim file of the Complainant was duly forwarded to the Opposite Party No. 2 by the Opposite Party / Insurance (Opposite Party No. 1) for adjudicating the probability of the said claim. The claim adjudication department and the doctors’ panel of the Opposite Party No. 2 after thorough scrutinisation of the claim related documents strictly following the conditions of the policy duly came to a logical conclusion that the claim of the Complainant is not payable in nature and adjudicated the said claim to be “No Claim” due to the reasons that the present claim is for treatment for Obstructive Sleep Apnoea due to Deviated Nasals Septum. It is quiet evident from the case file the patient has got Congenital DNS, which is external in nature. As per insurance norms external congenital disorders are not payable, so made no claim. These are the reasons; the Opposite Party No. 2 and 1 agitated in the written version and want the dismissal of the present complaint.



    Decisions with reasons:



    A bunch of treatment papers has been filed by the Complaint in support of his case. It is not disputed that the Complainant has a valid mediclaim insurance policy during the period, he had undergone the treatment. According to the Complainant, he had gone for his treatment to Raiganj District Hospital, Private Doctors and to E.N.T. Surgeon named Dr. Amitabha Roy Choudhury. He was under the said doctor admitted in a medical centre named as Microlab and stayed there as a indoor patient from 22.02.2006 to 28.02.2006 and finally he went to Bangalore for better treatment, there in hospital known as Basavanagudi E.N.T Care Centre, undergone an operation after the disease diogonized as DNS. Doctors there, done the operation, known as Septoplasty with bil, Partial Inferior Turbinectomy with U.P.P. According to the certificate of the said ENT Centre he was discharged there from on 16.03.2006. So, it appears from the treatment papers that the Complainant has developed certain problems, which fall within the purview of the E.N.T. specialists and all-through his treatment period he consulted with E.N.T. specialist and admitted to the nursing home twice under the specialist. So, there is no any question as to the fact of the nature of the disease, the Complainant has suffered, and the treatments, he availed thereof.



    Certainly, he has incurred expenditure in his prolong treatment. He has in support filed medical receipts and medical vouchers. It is his case that he forwarded his claim with all relevant papers to the Opposite Party No.2/ Insurer, which on acknowledgement refused finally to discharge the claim. It should be noted that the Complainant has filed his evidence in affidavit in chief and the Opposite Party / Insurer has cross-examined him. The Complainant has denied the suggestion that the doctor has diagnosed his disease as Congenital DNS. Be it noted here that no one has been examined from the side of the Opposite Party No. 1 and 2. There is no any paper to suggest that the ailment suffered by the Complainant is beyond the purview of disbursement of the claim. It has cited the opinion of the doctors constituted by itself, but neither the opinion is coming into writing, nor any doctor having a part taken into that analysis comes before this Forum to prove the version of the Opposite Parties. So, the fact, which the Opposite Parties have pleaded in their written version are to be proved by the Opposite Party by producing cogent acceptable and believable evidence. But we are not getting a scrap of paper coming from the side of the Opposite Party / men. Rather we do find from the case of the Complainant that he has sufficient papers to convince the Opposite Party / Insurer to discharge his claim. The action of the Opposite Parties is whimsical arbitrary and illogical. The case of the Opposite Parties has not been proved. So in conclusion this Forum is in the opinion that the Complainant has been able to make out a case in his favour to get an order as per his prayer.



    Now, in the matter of giving award in favour of the Complainant, we do think that the amount of award should strictly be confined to his actual cost of treatment. As per his prayer the claim is Rs.40,001.80 (rupees forty thousand one and eighty paisa) only, But the vouchers of medicine etc., that he has filed is only of the amount of Rs.35,932.78 (rupees thirty five thousand nine hundred thirty two and seventy eight paisa) only, rounded of to Rs.35,933.00 (rupees thirty five thousand nine hundred and thirty three) only. So, the Complainant is entitled to this amount.



    It is needless to say that his claim was not discharged by the Opposite Parties, which was the cause of his harassment and mental agony. On this count too, he can claim compensation against the Opposite Parties.



    Fees paid are correct.



    So, this Forum is finally disposed of this case with the following order: -



    that the complainant filed against the Opposite Parties, is allowed on contest in part;



    that this Forum do direct the Opposite Parties to pay an award of Rs. 35,933.00 (rupees thirty five thousand nine hundred thirty three) only to the Complainant and also a sum of Rs.10,000.00 (rupees ten thousand) only as compensation and litigation cost of Rs.2,000.00 (rupees two thousand) only.



    that the Opposite Parties shall do make the payment of the amounts totaling of Rs. 47,933.00 (rupees forty seven thousand nine hundred and thirty three) only, so awarded, within one month from the date of this order, failing which the Complainant will be at liberty to put the order in execution claiming an annual interest at the rate of 6.5 (rupees six and fifty paisa) percent from the date of this order.



    Furnish the true photocopies of this Final Order to the parties free of cost.

  8. #158
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    Default Oriental Insurance

    Complaint Case No.:230 of 2009
    Date of Inst:17.02.2009
    Date of Decision:13.11.2009
    Ashok Kumar son of Late Sh.Wazir Chand r/o H.No.1780, Phase-II, Ram Darbar, Chandigarh.

    ---Complainant
    V E R S U S
    1. Oriental Insurance Co. Ltd., through its Branch Manager, SCO No.45, Sector 20-C, Chandigarh.
    2. Vipul Med Corp TPA Pvt. Ltd., SCO No.100, First Floor, Sector 47-C, Chandigarh.
    ---Opposite Parties

    QUORUM

    SHRI LAKSHMAN SHARMA PRESIDENT

    SMT.URVASHI AGNIHOTRI MEMBER

    SHRI ASHOK RAJ BHANDARI MEMBER



    PRESENT: Sh.Paras Money Goyal & Sh.Hitender Kansal, Adv. for complainant

    Sh.Jagtar Kureel, Adv. for OP-1

    OP-2 already exparte.

    ---

    PER LAKSHMAN SHARMA, PRESIDENT

    Sh.Ashok Kumar has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to indemnify the expenditure of Rs.1,25,274/- incurred on his treatment along with interest @ 12% from the date of repudiation of the claim till realization besides Rs.50000/- on account of compensation and Rs.15000/- as litigation expenses.

    2. In brief, the case of the complainant is that he obtained Individual Mediclaim Insurance Policy No.231110/48/2009/422 covering the medical expenses incurred upon himself and his dependents. He paid Rs.6942/- as premium towards the said policy. The said insurance policy was valid from 15.10.2008 to 14.10.2009. On 29.10.2008, he fell ill. So, he was got admitted in Inscol Hospital from 04.11.2008 to 17.11.2008. He was found suffering from “Acute Febrile Illness Throm Bocytopenia Bilatera Bronchopneumia Ards Septicemia Respiratory Failure Leptospirosis”. He spent Rs.1,25,274/- on his treatment in the said hospital. After discharge from the hospital, he submitted his claim on 28.11.2008 along with all the relevant documents to OP-2.

    According to the complainant, his claim was repudiated by OPs vide letter dated 15.01.2009 (Annexure C-5) under exclusion clause 4.2 of the insurance policy. It has further been pleaded by complainant that neither he was ever told by the agent (who issued the cover note) about the exclusion clause of the policy nor the said terms and conditions of the insurance policy were mentioned in the cover note or the insurance policy schedule sent to him. It has specifically been pleaded that the terms and conditions of the insurance policy were never sent to him by OPs. According to the complainant, he wrote letter dated 24.01.2009 to reconsider the claim. The complainant received letter dated 05.02.2009 wherein he was informed that the disease suffered by the complainant is not covered under exclusion clause 4.2 of the insurance policy.

    In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

    3. In the reply filed by the OPs, it has been pleaded that the complainant was insured under the insurance policy in question. It has been submitted that the copy of the insurance policy along with the terms and conditions was supplied to the complainant. It has been denied that the complainant was issued only the policy schedule dated 16.10.2008. According to OPs, insurance policy containing all the terms and conditions was sent to the complainant along with the policy schedule. It has been vehemently asserted that the claim of the complainant was not payable under the exclusion clause 4.2 of the insurance policy and therefore, the claim was rightly repudiated keeping in view the terms and conditions of the policy. All other averments made in the complaint have been vehemently denied by OPs. In these circumstances, according to OP, there is no deficiency in service on its part and the complaint deserves dismissal.

    4. OP-2 was duly served but nobody appeared on its behalf to contest the case, therefore, OP-2 was proceeded against exparte vide order dated 13.08.2009.

    5. We have heard the learned counsel for the parties and have gone through the entire record including documents, Annexures, affidavits etc.

    6. The case of the complainant is that the terms and conditions of the insurance policy were never communicated to him either at the time of issuance of the cover note nor the same were communicated to him later on. He has categorically stated that he has only received the policy schedule of insurance but the entire policy containing the terms and conditions was not attached with it. On the other hand, the case of the OP is that the insurance policy containing the terms and conditions was communicated to the complainant and the copy of the policy containing the terms and conditions was sent along with the schedule of the policy. We have perused the schedule of policy (Annexure R-2). The relevant portion of the said schedule of policy reads as under:-

    “Insurance under this policy is subject to conditions, clauses, warranties, endorsements as per forms attached: Nil.”

    7. From the said portion of the schedule of policy sent to the complainant, it is apparent that the policy containing the terms and conditions was not attached with it. There is no material on record to prove that the policy containing the terms and conditions was ever sent to the complainant along with the schedule of policy. The affidavit of the person who sent the cover note and the insurance policy has not been placed on record. The affidavit of Sh.Milap Singh, Senior Divisional Manager has been placed on record. He has not specifically deposed that he had himself sent the policy containing the terms and conditions along with the schedule of policy to the complainant. Nor has he deposed that he is personally aware of this fact. On the other hand, the complainant has deposed in his duly sworn affidavit that he has not received the policy containing the terms and conditions of the policy.

    8. It has further been deposed by the complainant that he was not informed about the exclusion clause at the time of issuance of the cover note or at any point of time thereafter. Thus from the material on record, it has been duly proved that the complainant was not informed about the terms and conditions of the policy including the exclusion clauses.

    In the case titled as Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. reported in 2000(1) CLT-615, the Hon’ble Supreme Court of India has held as under:-

    “8. It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the Insurance Company and its agents to disclose all material facts in their knowledge since obligation of good faith applies to both equally.

    9. In view of the above settled position of law we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, respondent cannot claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law”.

    The ratio of the case cited above is squarely applicable to the facts and circumstances of the present case.

    9. Furthermore, from the bare reading of the exclusion clause No.4.2 itself, it is apparent that the Company shall appoint a panel of medical practitioners to opine that the insured person could not have known of the existence of the disease or any symptoms thereof at the time of making the proposal for insurance to the company. In the present case, the opinion of panel of medical practitioners to this effect has not been placed on record nor there is any material on record that any panel of medical practitioners was consulted to give its opinion before repudiating the claim of the complainant. In these circumstances, the repudiation of the claim of the complainant is unjustified and is not in accordance with the law.

    10. In view of the above findings, the present complaint is allowed with a direction to the OPs to pay to the complainant a sum of Rs.1,25,274/- along with Rs.30,000/- as compensation for mental agony and physical harassment. The OP is also directed to pay a sum of Rs.5,000/- as costs of litigation.

    11. This order be complied with by OPs within one month from the date of receipt of its certified copy, failing which OPs shall be liable to refund the aforesaid amount of Rs.1,55,274/- to the complainant along with penal interest @ 18% p.a. from the date of order till its realization besides costs of litigation.

    12. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.
    Announced

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    Default Oriental Insurance

    Complaint Case No.268 /2008

    Date of Institution 3-10-2008

    Date of Decision 30-11-2009

    1. Rajneesh Thakur son of late Sh.Thalia Ram

    2. Harish Kumar son of late Sh.Thalia Ram

    3. Krishna d/o late Sh.Thalia Ram

    4. Sudershana d/o late Sh.Thalia Ram

    5. Munish Kumar minor through his natural guardian i.e. mother Smt.Shakuntla widow of late Sh.Thalia Ram

    6. Smt. Shakuntla widow of late Sh.Thalia Ram

    7. Smt. Kataki Devi

    All resident of village and Post Office Langna, Tehsil Joginder Nagar, District Mandi, H.P.

    …Complainant

    V/S

    1. Oriental Insurance company Ltd through its Divisional Manager, Hospital Road, Mandi, District Mandi, H.P.

    2. Punjab National Bank Ltd Branch Tullah, through its Branch Manager, Village and Post Office Tullah, District Mandi, H.P.

    …..Opposite parties


    For the complainant Sh. Abhishekpal, , Advocate

    For the opposite party No.1 Sh. M.P.Sehgal Advocate

    For the opposite party No.2 Sh R.K. Nanda , Advocate

    Complaint under Section 12 of the

    Consumer Protection Act, 1986.

    ORDER.

    This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainants against the opposite parties. The case of the complainants is that they are legal heirs of Thalia Ram who was the owner of vehicle No. HP-29-B-0259. The aforesaid vehicle was financed by the opposite party No.2 and insured with the opposite party No.1.During the currency of the insurance policy, the truck met with an accident resulting in the death of the owner besides colossal loss also occurred to the truck. First Information report was lodged with the Police Station Joginder Nagar on 5-5-2007. Thereafter the matter was reported to the opposite parties for intimation as well as for settlement of the claim. All the relevant documents for settlement of the indemnity were also submitted to the office of the opposite party No.1. The complainant averred that not with standing the settlement of claim on total loss basis , the opposite party No.1 has settled the claim at Rs.4,74,450/- which is on very lower side because the insured declared value of the vehicle was Rs.9,10,000/-. The complainant was forced to sign the discharge voucher due to mounting interest from the banker. The complainant averred that the matter was represented to the opposite parties but opposite parties had taken no steps to indemnify the complainant on total loss basis . Besides no amount qua the coverage given to the owner was awarded by the opposite party No.1 in the sum of Rs.2,00,000/- . The complainant alleged that the settlement of the claim on lower side as well as non payment of the payment of the coverage given to the owner amounts to unfair trade practice as well as the deficiency in service .With these averments , the complainant had sought a direction to the opposite party No.1 to settle the claim of the complainant as per Total loss basis alongwith interest at the rate of 12 % per annum from the date of accident till realization and also to pay Rs.2,00,000/- on account of personal accident coverage of the owner Apart from this, Rs 20,000/- has been claimed as compensation besides a sum of Rs.5500/- has also been claimed as costs of complaint.

    2. The opposite party No.1 filed reply wherein it has taken preliminary objection that there is no deficiency in service on the its part . On merits , the opposite party No.1 has not disputed the accident and insurance of the vehicle . The opposite party No.1 had denied the averments of the complainant that the claim was settled on lower side and that the complainant was forced to sign the discharge voucher . The opposite party No.1 averred that on receipt of the information regarding accident , it acted promptly and deputed surveyor who visited the spot and inspected the insured truck and discussed the matter in detail with Sh.Rajnesh who is special power of attorney of the all the legal heirs of insured Sh.Thalia Ram and that the surveyor had recommenced the settlement of claim on cash loss basis to the tune of Rs.4,80,000/- which was accepted by them and after deducting excess claim as per the terms and conditions of the policy, it had paid Rs.4,75,450/- to the complainants and the same had been accepted by them as full and final settlement of their claim as per Annexure O-3. It has been admitted that no claim was given to the complainants under personal accident coverage as no premium for the same has been charged . The opposite party No.1had prayed for dismissal of the complaint.

    3 The opposite party No.2 has filed reply wherein it has raised preliminary objections that the complaint is not maintainable against it and that there is no deficiency in service on its part and the complainant has not come with clean hands . On merits , it has been averred that the complainant has taken loan from the opposite party No.2 for the purchase of the Tipper in the sum of Rs.7,92,000/- on 6-2-2006 and the said loan account has been closed on 30-1-2008. Rest of the allegations have been denied. The opposite party No.2 had prayed for dismissal of the complaint qua it.



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

    5 We have heard ld. counsel for the parties and have carefully gone through the entire case file. Be it stated that the insurance and accident of the vehicle is not in dispute. The complainants are legal heirs of the owner of the vehicle in question Sh.Thalia Ram who also died in the accident in question. As per the complainant , extensive damage was caused to the vehicle and the claim was settled at Rs.4,74,450/- by the opposite party No.1 where as the insured declared value of the same was Rs.9,10,000/-. According to the complainants, the complainant No.1 was forced to sign the discharge voucher due to mounting interest from the bank and due to family conditions and the non settlement of the claim on total loss basis tantamounts to unfair trade practice as well as deficiency in service on the part of the opposite party No.1. Conversely , the case of the opposite party No.1 is that vide report dated 24-8-2007 Annexure O-1, the surveyor has recommended the settlement on cash loss basis to the tune of Rs.4,80,000/- and the complainant No.1 Rajnish Thakur vide letter dated 16-6-2007 had conveyed his consent to the aforesaid settlement vide letter dated 16-6-2007 Annexure O-2 and accordingly after deducting excess claim as per the terms and conditions of the policy, it paid a sum of Rs.4,74,450/- to the complainants in full and final settlement of the claim and as such there is no deficiency in service on the part of the opposite party No.1.

    6 Now the question which arises for consideration before this Forum is as to whether non settlement of the claim of the complainants on total loss basis by the opposite party No.1 amounts to deficiency in service or not . To decide the above poser, it would be appropriate to go through the surveyor report dated 24-8-2007 given by Sh.Arun Kumar & Company , Surveyors and Loss Assessors .As per the Surveyor report , the sum assured was Rs.9,10,000/- and on repair basis the loss has been assessed at Rs.9,82,159/-. The surveyor has given the invoice value of the vehicle on the date of loss at Rs. 11,87,000/- and the salvage value has been assessed at Rs.2,25,000/- with registration certificate . The assessment arrived on Cash loss basis is at Rs.6,23,000/-. However, in the aforesaid report, it has been mentioned by the surveyor that he negotiated with the insured and made him agreed to the tune of Rs.4,80,000/- on Cash Loss Basis. It has also been mentioned by the Surveyor that due to financial constraints , insured preferred Cash Loss settlement which is also economical to insurer. It has further been mentioned that the settlement of loss on repair basis and on total loss basis is not at all economical and reasonable in comparison to cash loss mode . The perusal of the aforesaid report shows that the surveyor had assessed the loss on repair basis at Rs.9,82,159/- whereas the insured declared value of the vehicle is Rs.9,10,000/-. It is settled that where the vehicle is totally damaged or when net cost of repairs is almost close to the market value or Insured Declared value , the claim could be considered to be a total loss.

    7 Now the question which arises for determination by this Forum is as to whether the settlement of the claim on cash loss basis by the complainants in the sum of Rs. 4,80,000/- was under compelling circumstances and whether they are entitled to be indemnified by the opposite party No.1 on total loss basis . The ld. counsel for the complainant contended that due to mounting interest from the Banker ( opposite party No.2) and due to financial constraints , the complainant was forced to sign the discharge voucher and the complainant had been compelled by the opposite party No.1 to settle the amount on lower side in connivance with the Surveyor . This contention of the ld. counsel for the complainants find corroboration from the Surveyor report Annexure O-1 wherein it has been specifically observed by the surveyor that he had negotiated with the insured and made him agreed to settle the claim to the tune of Rs.4,80,000/ on cash loss basis . Since the aforesaid observation of the Surveyor is material for the purpose of deciding the real controversy between the parties it would be proper to reproduce the relevant portion of aforesaid report which reads as under:-

    “ We further negotiated the insured and made him agreed in a tune of Rs.4,80,000/- on Cash loss basis. Moreover due to financial constraints insured preferred cash loss settlement which is also economical to insurers.

    Conclusion

    From the foregoing , it is concluded that settlement of loss on repair basis and total loss basis is not at all economical and reasonable in comparison to cash loss mode. However, the insured agreed for settlement of loss on cash loss basis for Rs.480,000/- which is lesser in comparison to other modes of settlement . In this way, insurer’s shall avoid further overhead expenses which as storage of vehicle , deteriorated of salvaged vehicle and advertisement expenses .



    8 From the perusal of the aforesaid report of the Surveyor it has become clear that the surveyor has negotiated with the complainants to arrive at a settlement on Cash Loss Basis in the sum of Rs. 4,80,000/- against the assessment on cash loss basis in the sum of Rs.6,23,000/- and the insured agreed to settle the claim due to financial constraints . Therefore, from the pleadings of the complainants coupled with the Surveyor report it has been established by the complainants that the discharge voucher had been signed by the complainant No.1 Sh.Rajneesh Thakur under compelling circumstances due to financial constraints .

    9 Now the next question which arises for consideration is as to whether the surveyor had acted in an impartial manner for settlement of the claim. The answer to this poser in all fairness would be in the negative because the Surveyor is supposed to be an Independent person . The Surveyors are appointed by the Government of India as experts for the purpose of assessing the loss and their action should not only be fair but also impartial . However, in the present case, instead of acting in fair and impartial manner, the Surveyor had tried to benefit the Insurer in negotiating with the insured for the reasons best known to him as it has been categorically observed by the Surveyor that the settlement of loss on repair basis and on total loss basis is not at all economical and reasonable in comparison to Cash Loss Basis which is economical to insurer. Moreover , the Surveyor has negotiated with the insured and made him agreed to accept Rs.4,80,000/- on Cash loss basis despite the fact that the assessment arrived at by the surveyor on cash loss basis is Rs.6,23,000/-.Therefore, we have no hesitation in observing that the surveyor has not acted in fair and impartial manner by settling the claim of the complainants on cash loss basis in the sum of Rs.4,80,000/- to the detriment of the complainants.

    10. The ld. counsel for the opposite party No.1 contended that once the insured had accepted the settlement of the claim on Cash Loss Basis in the sum of Rs.4,80,000/- by signing the discharge voucher without any protest and received the above amount as full and final settlement of the claim, the complainants cannot re-agitate the matter and claim balance amount . However, this contention of the ld. counsel for the opposite party No.1 is devoid of any force because once it has been established by the complainants that they have signed the discharge voucher under compelling circumstances due to financial constraints ,they can file the claim to get balance amount . To take this view we are fortified by the order of Hon’ble National Commission in the case titled National Insurance Company Ltd Vs Vasavi Traders 2009(1) CPC-666 wherein it has been held that the insurance company cannot indulge in an act of coercive bargaining The relevant portion of this order is reproduced here asunder:-

    “4…………………………………

    (i) Whether the complainant can claim additional amount after signing the discharge voucher towards full and final settlement

    (ii) …………………………………

    5. The complainant has submitted in his complaint that after seven days of receipt of Rs.3,45,968/-, the complainant had approached the insurance company ( O.P.1) and demanded the balance amount which was declined and he was asked to approach O.P.2 He further submitted that since the entire stock was burst and the business had come to a stand still and because of financial crises and heavy loss of interest, the complainant was constrained to sign on the discharge voucher which was in a printed format . Therefore, he had no option but to file a complaint for the balance amount. This we feel is an act of coercive bargaining indulged in by the insurance company. A distressed insured person who has lost all means of earning his livelihood in a catastrophic fire, has no other choice but to accept any amount as an initial payment in the first instance.


    In the present case , as discussed hereinabove , since it has been established by the complainants that the complainant No.1 was forced to sign the discharge voucher by the opposite party No.1 in connivance with the surveyor due to financial constraints under compelling circumstances, therefore , in view of the aforesaid decision of Hon’ble National Commission, the complainants can claim balance amount even after signing the discharge voucher towards full and final settlement of the claim because in the present case also the insurance company had indulged in an act of coercive bargaining in connivance with the surveyor .

    11 Now the next question which arises for consideration by this Forum is as to what amount of compensation, the complainants are entitled . As per the Surveyor Report, the insured declared value of the vehicle was Rs.9,10,000/-. The Surveyor had assessed the loss on repair basis at Rs.9,82,159/-. The salvage value had been assessed at Rs.2,25,000/- with registration certificate . Since the repair value has exceeded the insured declared value , the claim of the complainants has to be considered to be a total loss. The vehicle was insured with effect from 13-2-2007and it met with an accident on 5-5-2007 which means that the vehicle had been used for a period of about three months from the commencement of the policy. Therefore , it would be appropriate if an amount of Rs.25,000/- is deducted as depreciation from insured declared value of the vehicle towards the use of the vehicle for the period of about three months . Hence the complainants are entitled to an amount of Rs.8,85,000/- (i.e. Rs.9,10,000/- (-)Rs.25,000/-) as compensation for the damage caused to the vehicle on total loss basis subject to deposit of salvage with registration certificate. Since it has been admitted by the complainants that a sum of Rs.4,74,450 /- had already been received by them as per discharge voucher dated 26-12-2007 Annexure O-3, therefore, the opposite party No.1 is liable to pay to the complainants a sum of Rs.4,10,550 /- ( i.e.Rs.8,85,000/-(-) Rs.4,74,450 /-)subject to deposit of salvage and registration certificate of the vehicle.

    12 The ld. counsel for the complainants next contended that the complainants are entitled to Rs.2,00,000/- on account of personal accident coverage given to the owner of the vehicle by the opposite party No.1. However, the opposite party No.1 had denied this fact in toto. The perusal of the policy Annexure O-4 clearly reflects that no premium has been received by the opposite party No.1 to cover the risk of owner-driver. The complainants have also failed to produce any evidence to this effect. Hence , we hold that the complainants are not entitled to any amount on this score from the opposite party No.1.

    13 In the light of above discussion, the complaint is allowed and the opposite party No.1 is directed to pay to the complainants Rs.4,10,550 /- with interest at the rate of 9% per annum from the date of filing of the complaint till realization subject to deposit of salvage with registration certificate of the vehicle . In case, the complainants fail to deposit the salvage and registration certificate of the vehicle, the opposite party No.1 is entitled to deduct the amount of Rs.2,25,000/-.

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

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

  10. #160
    adv.singh is offline Senior Member
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    Default Oriental Insurance

    Consumer Complaint No: 97/2008

    Date of presentation: 30/05/2008

    Date of decision: 27/11/2009

    Sh. Jai Singh, S/o Sh. Daya Ram,

    R/o Village Kainthari, P.O. Dharampur,

    Tehsil and District Solan, H.P.
    … Complainant
    Versus

    The Oriental Insurance Company Limited,

    Branch Office, The Mall Solan,

    Tehsil and District Solan H.P.

    Through its Branch Manager.

    …Opposite Party.

    For the complainant: Mr. C.K. Sharma, Advocate.

    For the Opposite Party: Mr. Ravinder Tiku, Advocate.


    O R D E R:

    Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, he, is, owner of a, tractor bearing registration No.HP-64-0349, which was insured by him, with the OP-Company, for a sum of Rs.2,00,000/-, for a period of one year commencing from 20.08.2005 to 19.08.2006. It is averred that on, 05.08.2006, the aforesaid tractor met with an accident at, National Highway No.22 near CHC, Dharampur, while it was coming towards Solan side, and suffered extensive damage. The complainant, further, proceeded to aver, that, the factum of accident was brought to the notice of the OP-Company, as also, to the Police. It is averred that he spent an amount of Rs.49,925/- in order to make the vehicle road worthy. Thereafter, the insurance claim was preferred with the OP-Company, who repudiated the same, vide letter dated, 12.03.2007. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OP-Company, in its version, to the complaint, contended that it is not liable to indemnify the complainant as the vehicle was being driven in violation of the terms and conditions of the insurance policy, as, at the time of the accident, one unauthorized passenger was travelling in the vehicle in question. However, it is contended that after the receipt of the intimation regarding accident, Shri Chaman Singhal, Surveyor & Loss Assessor was appointed to assess the damage, who vide his final report dated 04.11.2006, recommended a sum of Rs.22,899/-, which was payable subject to terms and conditions of the insurance policy. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

    5. It is not disputed that the tractor bearing registration No. HP-64-0349, was insured by the complainant with the OP-Company, for insured sum of Rs.2,00,000/-, commencing from 20.08.2005 to 19.08.2006. The parities, also, do not wrangle over the fact that the aforesaid tractor met with, an, accident on, 05.08.2006 and suffered extensive damage. The reporting of the matter to the OP-Company, and to the Police, is, also not at contest interse the parties. The sole ground taken by the OP-Company, in its reply, while resisting the claim of the complainant, is, the violation of the terms and conditions of the insurance policy, inasmuch, as, one unauthorized passenger was travelling in the tractor, when, it met with an accident, hence, the repudiation of the claim of the complainant, is, contended to be tenable. In this context, the OP-Company, is, seeking support from investigation report of Phul Parkash Bakshi, Investigator, Annexure R-5, wherein, it is detailed that Shri Prem Bhadur, was travelling in the tractor as unauthorized passenger, as, also of an admission of the complainant, that, the aforesaid was occupying the seat, aside, the driver.

    6. Now, assuming that, purportedly an unauthorized passenger, was being carried in, the tractor at the relevant time, yet, when with his being so carried, has not been proved to be the prima donna cause of the accident, as such, even, if, their was an unauthorized passenger travelling in the tractor, at the time when it met with an accident, yet, with the decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, as reported in 2009 NCJ 670 (NC), wherein the Hon’ble National Commission, while adjudicating, upon, the presence, of, gratuitous passengers, has, conclusively, held, that, when merely one or two extra passengers are found traveling in the vehicle, their, being so carried, cannot be construed, as, a violation of policy, hence, in tandem with the above judicial dicta, the, OP-Company, is, obliged to indemnify the claim of the complainant. The judgments relied upon by the learned counsel for the OP-Company, reported in 2008 (3) T.A.C. 385 (S.C.) in case United India Insurance Co. Ltd. Versus Suresh K.K. and Another, are in applicable as they are verdicts in petition filed under Motor Vehicles Act, hence, do not cover the factual matrix of the case, at hand, which is a claim the insurer for compensation, on account of damage to the insured vehicle. More so, when, the, judgment referred aforesaid directly covers the subject matter of the dispute.

    7. The complainant, is, claiming compensation of Rs.49,925/- from the OP-Company, the sum spent by him, on the repair of the tractor to make it road worthy. On the other hand, the OP-Company, is, seeking support from the report of the Surveyor and Loss Assessor, so appointed by the OP-Company, Annexure R-13, dated, 04.11.2006, vide which the loss has been assessed, at, Rs.22,899/-. The complainant has not produced any proof qua the sum, claimed by him, and has also failed to rebut or controvert the report of the surveyor. Hence, failure of the complainant, to rebut or controvert the survey report, aforesaid, it attains conclusiveness, in order to come to a conclusion of assessment of loss.

    8. As a sequitor to above, we allow this complaint and direct the OP-Company as follows:-

    i) That the OP-Company, shall indemnify the complainant to the extent of Rs.22,899/-;

    ii) That the aforesaid amount of Rs.22,899/- shall also carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 30.05.2008, till actual payment is made;

    iii) That the litigation cost, is, quantified at Rs.1500/- payable by the OP-Company to the complainant;

    vi) That the OP-Company, shall comply with this order within a period of forty five days, after the date of receipt of copy of this order;

    vii) In the above terms, the complaint stands disposed of accordingly.

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

  11. #161
    adv.singh is offline Senior Member
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    Default

    Consumer Complaint No: 263/2007

    Date of presentation: 29.10.2007

    Date of decision: 25.11.2009

    1. Sh. Jag Mohan, S/o Late Sh. Hardev Sharma.

    2. Sh. Prem Sharma, S/o Late Sh. Hardev Sharma.

    3. Ms. Nema Devi, Wd/o Late Sh. Hardev Sharma.

    4. Ms. Chamka Devi, Mother of Late Sh. Hardev

    R/o Vill. Mandholi (Koti), P.O. H.P. Nagar Tehsil Kumarsain, District Shimla (H.P.)

    … Complainants.
    Versus
    Oriental Insurance Company

    Through its Divisional Manager,

    Office Mythe Estate, Kaithu Shimla-3 H.P.



    …Opposite Party.
    For the complainant: Mr. Guljar Rathour, Advocate.

    For the Opposite Parties: Mr. Dheeraj Kanwar, Advocate vice

    Mr. Vipul prabhakar, Advocate.
    O R D E R:

    Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainants, by invoking the provisions of section 12 of the Consumer Protection Act, 1986. The complainants avers that, they are legal heirs of late Shri Hardev Sharma, who was owner of vehicle bearing registration No.HP-01A-3130, which was insured, by him, with the OP-Company, for a period of one year, commencing from 21.05.2005 to 20.05.2006. It is, averred, that the aforesaid vehicle, unfortunately, met with an accident, on, 04.04.2006, near Chil Mode under P.S. Kumarsain, District Shimla, during the currency of the insurance policy and suffered extensive damage. It is further averred that, the factum of the vehicle, having been met, with an accident, was reported to the OP-Company, as also to the Police, upon which FIR, was registered at Police Station, Kumarsain. Thereafter, the complainants, lodged insurance claim with the OP-Company, who instead of settling the same, dilly-dallied its settlement, on one pretext or the other. Hence, it is averred that, there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, inasmuch, as, locus standie of the complainants, to file the present complaint. On merits, it is contended that the complainants did not lodge any claim with them. They further contend that the vehicle, at the time of the accident, was not having fitness certificate, hence, the claim was repudiated. It is denied that the complainants, are, entitled to claim the insured sum. As such, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

    5. The complainants, being the legal heirs of deceased Shri Hardev Sharma, are, aggrieved by the act of the OP-Company, in not defraying them, insured sum, on account of damage caused to the vehicle, in an accident, on, 04.04.2006. The OP-Company, in its reply, has contended that since the vehicle, was not having fitness certificate, at the time when it met with an accident, hence, the complainants, are, not entitled to the insured sum, from the OP-Company.

    6. The ground taken by the OP-Company, to deny the claim of the complainants, is, not legally justified. Annexure C-1, is, a copy of insurance cover, issued by the OP-Company, on, 21.05.2005, covering the risk from 21.05.2005 to 20.05.2006, whereas, the accident took place on, 04.04.2006, hence, during the currency of the insurance policy. If, the vehicle was not having fitness certificate, at the time when it met with an accident, the OP-Company, hence, ought not to have come to insure a vehicle, which was not having a valid fitness certificate at the time of insuring the same. Hence, for lack of proper scrutiny of the documents by the OP-Company, at the time of issuing the policy in favour of the complainant qua the vehicle, they, cannot, deny the claim at this stage, to the complainant on the score of lack of fitness of the vehicle, insured by it, as, the fact, of, the contract of insurance enforced interse the contracting parties, qua the vehicle suffering damage during the currency of the policy, estops, them, from, denying so. Besides, when no proof has been adduced, that, the, lack of fitness of the vehicle was the prima dona cause of the accident, its, want, also, disables the OP-Company to canvas the said defence. As such, the ground as taken by the OP-Company, to deny its liability to make good the loss, is not justifiable and, it, hence, cannot exculpate its liability under the insurance policy.

    7. The OP-Company, has, also, contended that the complainants, have no locus standi to file the present complaint, is, without any merit, as the instant complaint, has been filed by the legal heirs of deceased Har Dev Sharma, who was the owner of the insured vehicle, as is evident from the perusal of Annexure C-2, a, copy, of, legal heir certificate issued by the Competent Authority. Another contention of the OP-Company, that, no, claim was lodged with them by the complainants, also, meets the same fate, as it has been specifically sworn by Shri Jag Mohan, in his affidavit, in the shape of evidence Ext. C-1, that, all the document in original through P.N.B. Kumarsain, were submitted to the OP-Company, for settlement. The said affidavit having remained un-repulsed and un-benumbed, on behalf of the OP-Company, has to be accorded sanctity.

    8. Now comes the point of indemnification, to which the complainants, are, entitled from the OP-Company. The vehicle, as per Annexure C-1, was insured on IDV, at, Rs.2,50,000/- and it being a case of total loss, the OP-Company, cannot exculpate its liability to indemnify the complainants, to the extent of insured sum. However, the complainant, is, not entitled to claim loss on account of loss of earnings, mental harassment etc. amounting to Rs.1,10,000/-.

    9. As a sequitor to above, we allow this complaint and direct the OP-Company to indemnify the complainants to the extent of Rs.2,50,000/- along with interest at the rate of 9% per annum, from the date of filing of the complaint, i.e. 16.08.2007, till actual payment is made. In addition to this, the OP-Company shall also pay litigation cost of Rs.2000/- to the complainants. Since, the loss has been assessed on total loss basis, the complainants, are, directed to hand over the key, registration certificate of the vehicle and salvage to the OP-Company. On failure of the complainants, to hand over the salvage of the vehicle, the OP-Company, shall be at liberty to deduct the amount of salvage from the aforesaid sum. This order shall be complied with, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order.

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

  12. #162
    adv.singh is offline Senior Member
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    Default Oriental Insurance

    Consumer Complaint No: 263/2007

    Date of presentation: 29.10.2007

    Date of decision: 25.11.2009

    1. Sh. Jag Mohan, S/o Late Sh. Hardev Sharma.

    2. Sh. Prem Sharma, S/o Late Sh. Hardev Sharma.

    3. Ms. Nema Devi, Wd/o Late Sh. Hardev Sharma.

    4. Ms. Chamka Devi, Mother of Late Sh. Hardev

    R/o Vill. Mandholi (Koti), P.O. H.P. Nagar Tehsil Kumarsain, District Shimla (H.P.)

    +
    Versus

    Oriental Insurance Company

    Through its Divisional Manager,

    Office Mythe Estate, Kaithu Shimla-3 H.P.

    …Opposite Party.

    For the complainant: Mr. Guljar Rathour, Advocate.

    For the Opposite Parties: Mr. Dheeraj Kanwar, Advocate vice

    Mr. Vipul prabhakar, Advocate.

    O R D E R:

    Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainants, by invoking the provisions of section 12 of the Consumer Protection Act, 1986. The complainants avers that, they are legal heirs of late Shri Hardev Sharma, who was owner of vehicle bearing registration No.HP-01A-3130, which was insured, by him, with the OP-Company, for a period of one year, commencing from 21.05.2005 to 20.05.2006. It is, averred, that the aforesaid vehicle, unfortunately, met with an accident, on, 04.04.2006, near Chil Mode under P.S. Kumarsain, District Shimla, during the currency of the insurance policy and suffered extensive damage. It is further averred that, the factum of the vehicle, having been met, with an accident, was reported to the OP-Company, as also to the Police, upon which FIR, was registered at Police Station, Kumarsain. Thereafter, the complainants, lodged insurance claim with the OP-Company, who instead of settling the same, dilly-dallied its settlement, on one pretext or the other. Hence, it is averred that, there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, inasmuch, as, locus standie of the complainants, to file the present complaint. On merits, it is contended that the complainants did not lodge any claim with them. They further contend that the vehicle, at the time of the accident, was not having fitness certificate, hence, the claim was repudiated. It is denied that the complainants, are, entitled to claim the insured sum. As such, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

    5. The complainants, being the legal heirs of deceased Shri Hardev Sharma, are, aggrieved by the act of the OP-Company, in not defraying them, insured sum, on account of damage caused to the vehicle, in an accident, on, 04.04.2006. The OP-Company, in its reply, has contended that since the vehicle, was not having fitness certificate, at the time when it met with an accident, hence, the complainants, are, not entitled to the insured sum, from the OP-Company.

    6. The ground taken by the OP-Company, to deny the claim of the complainants, is, not legally justified. Annexure C-1, is, a copy of insurance cover, issued by the OP-Company, on, 21.05.2005, covering the risk from 21.05.2005 to 20.05.2006, whereas, the accident took place on, 04.04.2006, hence, during the currency of the insurance policy. If, the vehicle was not having fitness certificate, at the time when it met with an accident, the OP-Company, hence, ought not to have come to insure a vehicle, which was not having a valid fitness certificate at the time of insuring the same. Hence, for lack of proper scrutiny of the documents by the OP-Company, at the time of issuing the policy in favour of the complainant qua the vehicle, they, cannot, deny the claim at this stage, to the complainant on the score of lack of fitness of the vehicle, insured by it, as, the fact, of, the contract of insurance enforced interse the contracting parties, qua the vehicle suffering damage during the currency of the policy, estops, them, from, denying so. Besides, when no proof has been adduced, that, the, lack of fitness of the vehicle was the prima dona cause of the accident, its, want, also, disables the OP-Company to canvas the said defence. As such, the ground as taken by the OP-Company, to deny its liability to make good the loss, is not justifiable and, it, hence, cannot exculpate its liability under the insurance policy.

    7. The OP-Company, has, also, contended that the complainants, have no locus standi to file the present complaint, is, without any merit, as the instant complaint, has been filed by the legal heirs of deceased Har Dev Sharma, who was the owner of the insured vehicle, as is evident from the perusal of Annexure C-2, a, copy, of, legal heir certificate issued by the Competent Authority. Another contention of the OP-Company, that, no, claim was lodged with them by the complainants, also, meets the same fate, as it has been specifically sworn by Shri Jag Mohan, in his affidavit, in the shape of evidence Ext. C-1, that, all the document in original through P.N.B. Kumarsain, were submitted to the OP-Company, for settlement. The said affidavit having remained un-repulsed and un-benumbed, on behalf of the OP-Company, has to be accorded sanctity.

    8. Now comes the point of indemnification, to which the complainants, are, entitled from the OP-Company. The vehicle, as per Annexure C-1, was insured on IDV, at, Rs.2,50,000/- and it being a case of total loss, the OP-Company, cannot exculpate its liability to indemnify the complainants, to the extent of insured sum. However, the complainant, is, not entitled to claim loss on account of loss of earnings, mental harassment etc. amounting to Rs.1,10,000/-.

    9. As a sequitor to above, we allow this complaint and direct the OP-Company to indemnify the complainants to the extent of Rs.2,50,000/- along with interest at the rate of 9% per annum, from the date of filing of the complaint, i.e. 16.08.2007, till actual payment is made. In addition to this, the OP-Company shall also pay litigation cost of Rs.2000/- to the complainants. Since, the loss has been assessed on total loss basis, the complainants, are, directed to hand over the key, registration certificate of the vehicle and salvage to the OP-Company. On failure of the complainants, to hand over the salvage of the vehicle, the OP-Company, shall be at liberty to deduct the amount of salvage from the aforesaid sum. This order shall be complied with, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order.

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

  13. #163
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    Consumer Complaint No: 16/2007

    Date of presentation: 12.01.2007

    Date of decision: 16.11.2009
    1. Shri Ashish Thakur, S/o Sh. Bhgmal Thakur,



    2. Shri Bhagmal Thakur, S/o Sh. D.N. Thakur, Both R/o Subhan Cottage, Himgiri Colony, Dhalli, Shimla-12.
    … Complainant.
    Versus
    M/s Oriental Insurance Co.

    Myth Estate, Kaithu, Shimla-3,

    Through its Divisional Manager.



    …Opposite Parties
    For the complainant: Mr. Peeyush Verma, Advocate.

    For the Opposite Parties: Ms. Rajvinder Sandhu, Advocate.

    O R D E R:
    Sureshwar Thakur (District Judge) President:-

    This complaint has been filed by the complainant, by invoking the provisions of section 12 of the Consumer Protection Act, 1986. The complainants avers that, they are owners of a house known as ‘Subham Cottage’ at Dhalli, which was constructed by them by obtaining loan from HP State Co-operative Bank, The Mall, Shimla, at a high rate of interest. It is averred that the aforesaid house was insured by them, with the OP-company, for a sum of Rs.19,00,000/-, for a period of one year. The complainants, further proceeded to aver that the insured house, unfortunately suffered huge damage, on the intervening night of 10/11th July, 2006, on account of heavy and incessant rainfall, their was settling down of the land strata, which resulted in the settling down of the building of the complainant. The factum of damage to the house was brought to the notice of the OP-Company, as well, as, Police. It is further averred that thereafter, the claim was lodged with the OP-Company, who instead of settling the claim, for a total insured sum, offered only a sum of Rs.2,50,000/-. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OP-Company, in its reply to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, inasmuch, as, that the house was got insured by the complainant after issuance of notice by SDM Rural, complaint being premature and loss, is, not covered as per policy condition. On merits, it is contended that the house was insured with them, but it was got insured after the issuance of the notice by the SDM Rural Shimla. They further contend that, on inquiry, it was revealed that due to cutting work being undertaken by Market Committee at opposite site of Subzi Mandi, Dhalli, for construction of a parking, the loss was caused. It is further contended that they had deputed surveyor and as per survey report, the loss was assessed at Rs.2,50,000/- on repair basis, which was payable as per the terms and condition of the policy. Hence, it is denied, that, there was any deficiency in service on their part.

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

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

    5. The insurance of the damaged building, was got done by the OP-Company, on, 25.05.2006. The OP-Company, has denied the claim of the complainant on the ground, that, despite notice to the Secretary, Marketing Committee, Dhalli, by, the Sub Divisional Magistrate, (Rural) Shimla, intimating, the, former, that, the adjoining buildings are likely to suffer loss, on account of indiscriminate and non-planned excavation work being carried out by the contractor of the former, on a date prior to the date of the purchase of the insurance cover by the complainant, from the OP-Company, hence, the contention of the complainant, that, the damage was caused by heavy and incessant rainfall, is, falsified and, hence, also the policy was purchased by infraction of the ubberima fides, inasmuch, as, the cause of damage comprised in the letter of the SDM, as referred to above, was not apprised by the complainant to the OP-Company, hence, vitiating the insurance cover.

    6. We have given our careful thought to the aforesaid contention, as, put forth by the OP-company, in repudiating the claim of the complaint. Even if, may be the contention as put forth by the complainant, that, the damage was caused by incessant rainfall, is, falsified, yet, the fact that the damage was caused owing to indiscriminate and non-planned excavation work being carried out by the Market Committee, Dhalli, is, hence not at contest between the parties, at, his. Even, if, the aforesaid was the cause of the damage suffered by the building of the complainant and the policy was purchased subsequent, to, the damage suffered by the building, yet, if prior to the purchase of the policy apparent noticeable damage was caused to the insured building, by the aforesaid cause, the said apparent cause was, a, cause, to, which the insurance agent, who executed the policy could not have remained obivious, as, the OP-Company would have proceeded to insure the building, only on their official visiting the site. As a sequitor, then, the cause of damage, even if, the policy was executed subsequent to the damage having been suffered by the building of the complainant, it, could not have remained hidden, from the official, of, the OP-Company. Therefore, their was no concealment of the said fact by the complainant. As a further consequence, it cannot be said, that, their was non-disclosure or non-detection of the cause of the damage to the building insured, with, the OP-Company, even if, it was, so, purchased, on a, later date, especially when, he, was paying the premium, therefore, the policy, is, not vitiated by the vire of ubberima fides.

    7. The only point which now requires adjudication by this Forum, is, the amount of indemnification, payable by the OP-Company to the complainant. The complainant, is, claiming the insured sum of Rs.19,00,000/- from the OP-Company, on the ground that the insured building, has been totally damaged, hence, he, is, entitled for the insured sum from the OP-Company. However, nothing has been brought on record by the complainant to prove the fact that the building has been totally damaged, hence, entitling him to claim insured sum from the OP-Company. In the absence of cogent and convincing material on record and the survey report placed on record by the OP-Company, having remained un-repulsed and un-benumbed, it cannot be said by any stretch of imagination, that the insured building of the complainant has been totally damaged. Therefore, for assessment of the loss, we accord sanctity, to the report of the surveyor, so appointed by the OP-Company, to assess the loss caused to the insured building of the complainant.

    8. Resultantly, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs.2,40,526/- along with interest at the rate of 9% per annum, from the date of filing of the complaint, i.e. 12.01.2007, till actual payment is made. The OP-company, has illegally and arbitrarily not defrayed the amount of survey report to the complainant, hence, they are also saddled with damages of Rs.10,000/- payable by them to the complainant. In addition to this, the OP-Company shall also pay litigation cost of Rs.3500/-. This order shall be complied with, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order.

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

  14. #164
    adv.singh is offline Senior Member
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    Default Oriental Insurance

    Consumer Complaint No: 141/2007

    Date of presentation: 24.05.2007

    Date of decision: 16.11.2009
    1. Ms. Ram Dassi, W/o Sh. Lobhu Ram,

    2. Shri Abhinash, S/o Late Sh. Diwan Singh (Minor) ( both R/o Village Dobi P.O. Kartot, Tehsil, Rampur Bushehar, District Shimla H.P.) complainant No. 2 through its next friend Sh. Lobhu Ram Grand father of the complainant.

    … Complainant.
    Versus

    1. M/s Oriental Insurance Co. Ltd, Divisional Office, Kothi No. 4 Opposite Anup Service Station, Kaithu Shimla-3. through its Divisional Manager.

    2. Ms. Nisha Devi, W/o Late Sh. Diwan Singh, R/o Vill. Dobi, P.O. Kartot, Tehsil, Rampur Bushehar, District Shimla, H.P.


    …Opposite Parties

    For the complainant: Mr. B.N. Mehta, Advocate.

    For the Opposite Party No. 1: Mr. Anil Tomar, Advocate.

    For the Opposite Party No. 2: Mr. H.N. Kashyap, Advocate.

    O R D E R

    Sureshwar Thakur (District Judge) President: - The instant complaint, has been filed by the complainants, by invoking the provisions of section 12 of the Consumer Protection Act, 1986. The complainants avers that they are legal heirs of deceased Shri Diwan Singh, who was owner cum driver of vehicle bearing registration No.HP-06A-0215, which was got insured by him, with the OP-Company, and has also obtained personal accident cover, for owner-driver, to the extent of Rs.2,00,000/-. It is averred that, on, 31.08.2006, the aforesaid vehicle met with an accident and suffered extensive loss, in which driver-cum-owner, Shri Diwan Singh, also met his end. As usual, the matter was brought to the notice of the OP-Company, as well, as, to the Police, upon which FIR No.81, dated 31.08.2006, also came to be lodged with the concerned Police. Thereafter, it is averred, that, the insurance claim was lodged with the OP-company, who dilly-dallied the same on, one pretext or the other. As such, the father of the deceased, as a special power of attorney of OP No.2, who is wife of deceased, filed a complaint before this Forum, on, 21.12.2006, which later on, came to be withdrawn with liberty to file fresh, for the reason that the OP No.2, abruptly withdrew the special power of attorney. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

    2. The OP-Company, in its written version, to the complaint, raised preliminary objection regarding maintainability of the complaint, inasmuch, as, that the vehicle was being driven in contravention of the terms and conditions of the insurance policy. On merits, the OP No.1-Company, contended that the fitness certificate of the vehicle was valid up to 21.11.2005, whereas, the accident took place, on, 30.08.2006, hence, at the time of the accident, the vehicle was not having valid fitness certificate. They further contend that the owner-driver, was also not having valid and effective driving licence for driving the vehicle. It is further contended that Shri Garish Sharma, was appointed as surveyor to conduct the final survey, who assessed the loss on total loss basis, at, Rs.2,24,000/-, which was recommended to be paid to the complainant, subject to terms and conditions of the insurance policy. Hence, it is contended that there was no deficiency in service on their part.

    3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their respective rival contentions.

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

    5. The complainant, is, aggrieved by the act of the OP-Company, in repudiating their claim, without any justifiable ground. However, the OP-Company, has come up with a specific defence, that, the vehicle, when, it, met with an accident, was being driven, in, contravention of the insurance policy, inasmuch, as, it was being plied without any fitness certificate and that the driver-cum-owner was not having valid and effective driving licence to drive the category of vehicle.

    6. In so far as the plea of the OP-Company, that, the driver-cum-owner was not having valid and effective driving licence to drive the category of vehicle, is, concerned, the OP-Company, has not been able to prove the invalidity of the driving licence of driver-cum-owner. The complainant has placed on record the copy of the driving licence, which bears Annexure C-3. Its perusal divulges the fact that, it, was issued by Registering & Licensing Authority, Chopal, District Shimla, H.P. valid up to 15.02.2008, authorizing the driver to drive L.T.V. only. Annexure C-2, is, the copy of registration certificate of the vehicle, in which the class of vehicle, is, described as LTV. With the driver-cum-owner possessing a driving licence valid up to 15.02.2008, authorizing him to drive LTV, and the accident, having taken place within the validity of the aforesaid driving licence, the contention of the OP-Company, that, the driver-cum-owner, was, not, having a valid driving licence to drive the category of vehicle, is, without any substance and justification.

    7. The insurer has also sought, to, exculpate its liability to pay the amount of indemnification, on the score that the fitness of the vehicle, stood expired on 21.11.2005, whereas, the accident took place on 30.08.2006, hence, it is not liable to make good the loss suffered by the complainant.

    8. The defence so built up by the OP-Company, to deny its liability, seems to be an after thought for the reason that the policy qua the vehicle was issued by it, on, 30.11.2005, covering the risk from 01.12.2005 to 30.11.2006, whereas, the fitness certificate was valid only up to 21.11.2005, meaning thereby that the OP-Company, hence, came to insure a vehicle, which was not having a valid fitness certificate, at,the time of insuring the same. Hence, for lack of proper scrutiny of the documents by the OP-Company, at, the time of issuing the policy in favour of the complainant qua the vehicle, they, cannot, deny the claim at this stage, to the complainant on the score of the fitness of the vehicle, insured by it having expired, as, the fact, of, insurance, by, them of the vehicle suffering damage during the currency of the policy, estops, them from denying so. Besides, when, no, proof has been adduced, that the lack of fitness of the vehicle, was, the prima dona cause of the accident, its, want, also, disables the OP-Company to canvas the said defence. As such, the second ground as taken by the OP-Company, to deny its liability to make good the loss, is not justifiable and, it, hence, cannot exculpate its liability under the insurance policy. Therefore, the repudiation of the claim of the complainants, by the OP-Company, amounts to deficiency in service.

    9. Now, comes the point of indemnification to which the complainants, are, entitled from the OP-Company, on account of the damage caused to their insured vehicle. Admittedly, the vehicle was insured with the OP-Company, for an amount of Rs.2,75,000/- on IDV basis. Since, the vehicle was insured on IDV basis, and it being a total loss, hence, the OP-Company, is, liable to indemnify the complainant to the extent of its insured value. The OP-Company, has, also issued personal accident cover to its owner-cum-driver, to the extent of Rs.2,00,000/- as, is, evident from the perusal of insurance cover Annexure C-1. The driver-cum-owner of the vehicle, also met his end in the accident, as such, the OP-Company, is, also liable to pay the said sum to the legal heirs of driver-cum-owner.

    10. Consequently, we allow this complaint and direct the OP-Company as follows:-

    i) That the OP-Company, shall indemnify the complainants No.1, 2 and OP No.2 being their mother, and wife of deceased to the extent of Rs.2,75,000/- on total loss basis;



    ii) That the OP-Company, shall, also indemnify the complainants No.1,2 and OP No.2, to the extent of Rs.2,00,000/- on account of death of driver-cum-owner of the vehicle, who was duly insured under personal accident cover;



    iii) That the aforesaid sums, shall, also carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 24.05.2007, till actual payment is made;



    iv) That since, the claim in respect of the damage to the vehicle has been assessed on total loss basis, as has been assessed by the surveyor so appointed by the OP-company, therefore, the complainant is directed to hand over key and registration certificate of the vehicle to the OP-Company, along with salvage. On failure of the complainants to return the salvage to the OP-Company, in that event, it shall be liable to deduct an amount of Rs.50,000/-, from the insured sum of Rs.2,75,000/-, on account of salvage value, as has been assessed by the surveyor so appointed by the OP-Company;



    v) That the OP-Company, shall also pay Rs.2500/- as cost of litigation to the complainants;



    vi) That the aforesaid amount, shall be defrayed to the complainants No.1, 2 & OP No.2 in equal shares, and the sums, falling in the share of complainants No. 2, shall be invested in the shape of FDR, which shall be defrayed to him, on attaining of the majority by him, and the said FDR shall be deposited with this Forum, by the OP-Company;



    vii) That this order shall be complied with by the OP-Company, within a period of forty five days, after the date of receipt of copy of this order;



    viii) That the complaint stands disposed of, in the above terms.



    11. The learned counsel for the parties has undertaken to collect the certified copy of this order from the office, free of cost. The file after due completion, be consigned to record room.

  15. #165
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    Consumer Complaint No: 125/2007

    Date of presentation: 11.12.2007

    Date of decision: 12/11/2009.
    Shri Surender Singh, S/o Sh. Kundan Singh,

    R/o Vill. Shilla, Tehsil Kamroo,

    District Sirmaur, H.P.
    … Complainant.

    Versus
    1. The Oriental Insurance Company Ltd.,

    Through its Branch Manager, Branch Nahan,

    Distt. Sirmour, H.P.

    2. The H.P. State Co-operative Bank Kamroo,

    Through its Branch Manager.

    …Opposite Parties
    For the complainant: Mr. Rupesh Chauhan, Advocate.

    For the Opposite Parties: Mr. V.R. Chauhan, Advocate.

    O R D E R:
    Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he purchased a pair of mules, which were financed by him, with the OP No.1, w.e.f. 01.02.2006 to 31.01.2009 for a sum of Rs.40,000/-, and tag No.261104/01669 and 261104/01699 were issued. It is averred that the mule having ear tag No.261104/01669, died at village Bokala, P.O. Shillai, on, 25.12.2006, on account of accidental fall. It is further averred that the factum of death was brought to the notice of the OP No.1-Company and thereafter, insurance claim was also lodged with it. The complainant further proceeded to aver that the OP No.1-Company, instead of settling his insurance claim, dilly-dallied its settlement, on one pretext or the other. Hence, feeling dissatisfied and aggrieved by the inaction of the OPNo.1-Company, the complainant perforce filed this complaint against the OP-Company.

    2. The OP-Company, in its written version, to the complaint, besides raising preliminary objections, contended that the complainant in the claim form has detailed the place of accident at, village Shilla, whereas, in the complaint, it has been detailed at, Village Bokala. It is further contended that the death certificate has not been issued by the competent authority. Hence, it is denied that there was any deficiency in service on their part.

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

    4. The OP-Company does not deny the fact that it had insured a pair of mules, for an amount of Rs.20,000/- each. The OP-Company, also, does not dispute that their purported demise did not occur during the currency of insurance. It contests, the, fact, that, their was discrepancy of place of incident, qua the livestock insured with it, inasmuch, as, in the claim form the complainant has detailed the place of death at, Village Shilla, whereas, in paragraphs 2 of the complaint, the place of death, is, disclosed at, village Bokala and further, that, the death certificate has not been issued by the competent authority. However, we, are, not in agreement with the later contention, so, put forth by the OP-Company, for, the reason that the death certificate Annexure C-1, has been issued by Incharge Veterinary, Hospital, in which, it, has been specifically detailed by the said Incharge that the mule bearing tag No.261104/01669, died at Village Bokala, due to accident, on, 25.12.2006. Hence, the defence put forth by the OP-Company to deny the claim of the complainant, on the purported ground of the incompetence of issuance of Annexure C-1, is, without any substance, especially, when C-1 has not been falsified.

    5. Moreover, the former defence of the OP-Company that, their, is, discrepancy regarding place of demise of the livestock, inasmuch, as, the complainant, has, disclosed the place of incident in the claim form, at, village Shilla, whereas, in, paragraph 2 of the complaint, it is disclosed, at, Village Bokala, is, also of no avail to the OP-Company for denying the claim of the complainant, as, the claim form Annexure OP-1, appears to have been filled in by the officials of the OP No.2. Moreover, once it has been established on record, that, the insured mule did die during the currency of the insurance policy, mere reason, that, their, is, discrepancy regarding place of death of the insured mule, cannot oust the claim of the complainant. Further more, Annexure OP-2, which, is, a certificate issued by the Pradhan, can, also, not be taken into consideration, on account of the fact that, no, affidavit in support of the said document, of its, author has been placed on record. Therefore, the repudiation of the claim of the complainant by the OP No.1-Company, was, not, legally justified.

    6. In view of the above, we, allow this complaint and direct the OP-Company to indemnify the complainant to the extent of insured sum, i.e. Rs.20,000/-. The litigation cost is assessed at Rs.1,000/-payable by the OP-Company to the complainant. However, their, shall be no order as to the defrayment of payment of interest by the OP-company, to the complainant, keeping in view the facts and circumstances of the case. This order shall be, complied with, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order. With this, the complaint stands disposed of finally. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

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