Consumer Complaint No: 72/2007

Date of presentation: 12.07.2007

Date of decision: 12/11/2009.

Shri Khazan Singh, S/o Sh. Hari Ram, R/o Vill. Kamraoo, Sub Tehsil Kamraoo, District Sirmaur, H.P.

… Complainant.
Versus
The Oriental Insurance Company Ltd.,

Near Chowgan at Nahan, Distt. Sirmour, H.P.

through its Branch Manager.

…Opposite Party.

For the complainant: Mr. I.S. Chauhan, Advocate.

For the Opposite Party: Mr. Sandeep Kumar, 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, is, owner in possession of a house situated in Village Kamraoo, Sub Tehsil Kamraoo, District Simrour, H.P., which was insured by him, with the OP-Company, for a sum of Rs.5,00,000/- under standard fire and special perils policy, commencing from 06.06.2006 to 05.06.2007. It is averred that on, 10.11.2006, he was informed by his son, regarding damage to the aforesaid insured house, on account of fire, resulting in total loss. Thereafter, the matter was brought to the notice of the OP-Company, and insurance claim was also lodged with it, who instead of indemnifying the loss on total loss basis, indemnified him only to the extent of Rs.2,00,000/- only. 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, admitted the factum of having burnt the insured house of the complainant, on, 10.11.2006. It is denied that the complainant is entitled to claim total insured sum of Rs.5,00,000/-. Rather, the OP-Company, is, liable to pay on the sum assured, i.e. Rs.5,00,000/- after deduction of depreciation @ 50%, i.e. Rs.2,50,000/- and less salvage, expenses and clause as per policy, Rs.15,000/-, less Rs.35,000/- received from the Naib Tehsildar Kamrao and also less Rs.2,000/- received from Naib Tehsildar Kamrao. 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 not indemnifying him, to the entire insured sum of Rs.5,00,000/- on account of damage caused to his insured house, in a fire occurrence, having occurred on, 10.11.2006. The OP-Company, contests the claim of the complainant that he has been rightly indemnified by them to the extent of Rs.2,00,000/-, hence, cannot claim, over and above the said sum.

6. The only dispute which emerges interse the parties, is, qua the quantum of compensation. Though, the complainant, is, claiming that he has been defrayed a less amount, than, the, insured sum, by the OP-Company, hence, is, entitled to the entire insured sum, on account of the damage caused to his insured house. With the complainant having averred that he is entitled to the entire insured sum, on account of damage to the insured property, as such, it was incumbent upon him to have brought on record the report of an independent valuer to prove the said assertion. Hence, for lack of report of the independent valuer to prove the fact that the entire house was gutted in a fire, it, cannot be construed that the complainant, is, entitled to the entire insured sum from the OP-Company, on account of damage caused to his insured house.

7. However, the loss was got assessed by the OP-company, from Kumar Raj & Associates. From a bare perusal of the report of the aforesaid Loss Assessor, the loss as assessed by him, is quantified, at, Rs.2,80,418/-, whereas, the complainant has been indemnified only for a sum of Rs.2,00,000/-. The OP-company has contended in its reply that a sum of Rs.37,000/- received from Naib Tehsildar Kamrao , by the complainant has been deducted from the said amount and a sum of Rs.15,000/- has, also, been deducted on account of excess clause. No doubt the amount of Rs.37,000/- may have been received by the complainant from the aforesaid Authority, but, the OP-Company, in our considered view, was not competent to deduct the said sum, paid to him, by the aforesaid Authority, from the survey report. Hence, the deduction of said sum, from, the assessment made by their surveyor, on the part of the OP-Company would certainly amount to deficiency in service.

8. As the loss was assessed at Rs.2,80,418/- by their surveyor, and he has been indemnified only to the extent of Rs.2,00,000/- by the OP-Company, hence, he, is entitled to be indemnified, by the OP-Company, to the balance sum of Rs.80,418/- along with interest and litigation costs.

9. As a sequitor to above, the complaint is allowed in the following terms:-

i) That the OP-Company shall indemnify the complainant to the balance sum of Rs.80,418/-;



ii) That the aforesaid amount, shall carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 12.07.2007, till making entire payment of the awarded amount;



iii) That the OP-Company, shall also pay litigation cost of Rs.1500/- to the complainant;



iv) Since, the OP-company, has illegally indemnified the complainant to the less sum, than the sum, assessed by the surveyor and has dragged the complainant to unnecessary litigation and subjected him to pain and suffering, as such, the OP-Company, is, also saddled with damage of Rs.5,000/-.

v) 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;


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.

Consumer Complaint No: 90/2007

Date of presentation: 05.09.2007

Date of decision: 11/11/2009.
Smt. Promila Devi W/O late Shri Babu Ram,

R/O Village Nai Neti, P.O. Shargaon,

Tehsil Rajgarh, District Sirmour, H.P.
… Complainant.

Versus
1. The Oriental Insurance Company Limited,

Through its Managing Director,

Regd. Office Oriental House, P.B. No.7037,

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

2. The Branch Manager,

The Oriental Insurance Company Limited,

The Mall Solan, District Solan, H.P.
…Opposite Parties.

For the complainant: Mr. Arun Kumar, Advocate.

For the Opposite Parties: Mr. Amit Aggarwal, 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 her husband late Shri Babu Ram, was owner of vehicle bearing registration No.HP-16-1846, which was insured by him, with the OP-Company, for a sum of Rs.3,50,000/-, for a period of one year commencing from 27.06.2006 to 26.06.2007. It is averred that on, 06.12.2006, the aforesaid vehicle met with an accident at Yashwant Nagar, 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, upon which F.I.R. No.102, dated 06.12.2006, was lodged with the Police. Thereafter, the insurance claim was preferred with the OP-Company, which remained unsettled and un-indemnified, notwithstanding the fact that various requests were made to the OP-Company. The complainant further avers that the non-settlement of insurance claim by the OP-Company, smacks of legal malafide. 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 various preliminary objections vis-à-vis maintainability of the complaint, status of the complainant as a consumer and violation of terms and conditions of the insurance policy. On merits, it is contended that on receipt of the information reading the accident, independent surveyor was appoint by them to inspect the vehicle and assess the loss, but later on, it was revealed that some unauthorized persons were travelling in the vehicle, whereas, it being goods vehicle, hence, amounts to violation of 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 dispute, that, the truck bearing registration HP-16-1846, was insured, by, the complainant with the OP-Company, for a sum of Rs.3,50,000/- commencing from 27.06.2006 to 26.06.2007. The parities, also, do not wrangle over the fact that the aforesaid vehicle met with, an, accident on, 06.12.2007 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 as occasioned of the terms and conditions of the insurance policy, inasmuch, as, some unauthorized passengers were travelling in the vehicle, 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 the copy of FIR, Annexure-III.

6. Now, adverting to the legal efficacy of the contention, of, the OP-Company, that, some unauthorized persons were travelling in the vehicle, the, said contention has remained in the realm of pleadings alone, as the copy of FIR, reflecting so does, not comprise conclusive evidence, qua, the said fact. Hence, since no conclusive proof qua the exact number of purported gratuitous passengers travelling in the ill fated vehicle has been adduced, yet, assuming, that, purportedly unauthorized passengers, were being carried in, the vehicle at the relevant time, yet, when their being so carried, in it, has not been proved to be the prima donna cause of the accident, as such, even, if, their were unauthorized passengers travelling in the truck, 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, on total loss basis.

7. The Surveyor and Loss Assessor, so appointed by the OP-Company, vide survey report Annexure-IV, dated 20.01.2007, has reported that more damages may come into light, at the time of final survey. It appears that the OP-Company did not appoint another surveyor for conducting final survey of the vehicle and straightway proceeded to repudiate the claim of the complainant, for, the aforesaid reason. Therefore, in the absence of material on record and the OP-company having not appointed a surveyor, to induct a final survey, we, are, not in a position to assess the damage caused to the insured vehicle. Hence, taking into consideration the facts and circumstances of the case, it, shall be appropriate and in the fitness of things, that, the OP-Company, shall proceed to appoint a surveyor, to finally assess the loss caused to the vehicle after taking into consideration the bills of repairs as produced before him by the complainant and after assessment of the loss, the amount shall be defrayed to the complainant, along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, till actual payment is made. The OP-Company, shall also pay litigation cost of Rs.1500/- to the complainant. This exercise shall be done by the OP-Company, within a period of two months, after the date of receipt of copy of this order. Hence, the complaint stands disposed of, in the above terms.

8. 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.

Complaint No: 160 of 2009

Date of Institution: 13.08.2009

Date of Service: 01.09.2009

Date of Decision: 06.11.2009

Gurdeep Singh (aged 50 years) son of Sh.Thaman singh, resident of village: Gill, Tehsil & Distt.Moga.

Complainant.
Versus
Oriental Insurance Company Limited, Branch Office: Amolak Bhawan, G.T.Road, Moga.
Opposite Party
Complaint Under Section 12 of the
Consumer Protection Act, 1986.
Present: Sh.Sanjeev Sharma, Adv.counsel for the complainant.

Sh.P.K.Sharma, Adv.counsel for the OP.
Quorum: Sh.J.S.Chawla, President.

Smt.Bhupinder Kaur, Member.

Sh.Jit Singh Mallah, Member.

(J.S.Chawla, President)

Sh.Gurdeep Singh complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against Oriental Insurance Company Limited, Branch Office: Amolak Bhawan, G.T.Road, Moga (herein-after referred to as ‘Insurance Company’)-opposite party directing them to pay Rs.83280/- as repair charges of vehicle and also to pay Rs.50000/- as compensation for causing mental tension and harassment or any other relief to which this Forum may deem fit be granted.

2. Briefly stated, Gurdeep Singh complainant got insured his Truck Tata 3516 model 2004 bearing old registration no.HR-58A-9855 (new no.PB-29H-9955) with OPs-Insurance Company vide cover note no.CHD-C 495971 for the period w.e.f. 07.11.2008 to 06.11.2009. That earlier, the said vehicle was in the name of Varinderjit Singh Sandhu bearing registration no.HR-58A-9855. That on 11.02.2009 said vehicle met with an accident and was damaged badly. That the complainant immediately informed the OP-Insurance Company about the damage and got repaired his vehicle from different workshops at G.T.Road, Moga. That the OP-Insurance Company appointed Charanjit Singh Surveyor and Loss Assessor and thereafter Kamlesh and Gaurav Gupta Surveyor who inspected the damaged vehicle and thereafter, the OP-Insurance Company demanded the bills from him. That after making the payment for the repair of the said vehicle, the complainant lodged the claim with the OP-Insurance Company and completed all the formalities, but they failed to pay the bill amount to the complainant. That on 08.06.2009 the complainant also served a legal notice to the OP-Insurance Company through his advocate, but they refused to reimburse him and repudiated his claim on 27.05.2009 on the flimsy ground. Hence the present complaint.

3. Notice of the complaint was given to the OP-Insurance Company who appeared through Sh.P.K.Sharma Advocate and filed written reply contesting the same. They took up preliminary objections that the present complaint is not maintainable; that the complainant is estopped by his act and conduct from filing the present complaint and that the complainant has not come to this Forum with clean hands because he has concealed and suppressed the material facts from the knowledge of this Forum. In fact, the complainant has claimed 20% as ‘No Claim Bonus’ from the OP-Insurance Company on the basis of previous insurance policy no.0573601 with Royal Sundram Alliance Insurance Company. That the previous policy was in the name of one Varinderjit Singh Sandhu and the same was transferred in the name of complainant on 4.3.2008, so the complainant was not entitled to any ‘NCB’ due to transfer of the policy. As per Motor Tariff designed by Tariff Advisory Committee, an insured becomes entitled to NCB only at the renewal of policy after the expiry of full duration of twelve months. So the claim of the complainant is not payable due to concealment of material facts. Hence, the claim of the complainant was repudiated vide letter dated 27.5.2009 as per the terms and conditions of the policy. On merits, the OP-Insurance Company took up the same and similar pleas as taken up by them in preliminary objections. All other allegations made in the complaint were specifically denied being incorrect. Hence, it was prayed that the complaint filed by the complainant has no merit and the same deserves dismissal.

4. In order to prove his case, the complainant tendered in evidence his affidavit Ex.A1, copy of policy Ex.A2, copy of letter Ex.A3, copy of endorsement letter Ex.A4, copies of schedule Ex.A5 to Ex.A7, copy of RC Ex.A8, copies of bills Ex.A9 to Ex.A16, copy of legal notice Ex.A17, receipt Ex.A18, reply to legal notice Ex.A19 and closed his evidence.

5. To rebut the evidence of the complainant, the OP-Insurance Company tendered affidavit Ex.R1 of Sh.Jagmohan Singh, Sr.Divisional Manager, copy of terms and conditions Ex.R2, copy of tariff rules Ex.R3, copy of certificate Ex.R4, copy of endorsement Ex.R5, copy of letter Ex.R6, copies of surveyors reports Ex.R7 and Ex.R8, copy of package policy Ex.R9 and closed their evidence.

6. We have heard the arguments of Sh.Sanjeev Sharma ld. counsel for the complainant and Sh.P.K.Sharma ld. counsel for the OP-Insurance Company and have very carefully perused the evidence on the file.

7. Sh.Sanjeev Sharma ld.counsel for the complainant has mainly argued that the OP-Insurance Company has wrongly and illegally repudiated the claim of the complainant regarding the accidental repair of his truck. This contention of the ld.counsel for the complainant has full force. Admittedly, the truck in question was insured by the complainant with the OP-Insurance Company w.e.f. 07.11.2008 to 06.11.2009 and the alleged accident took place on 11.02.2009 i.e. within the period of insurance. The only defence taken up by the OP-Insurance Company was that the complainant had concealed the material fact that earlier the truck was in the name of Varinderjit Singh Sandhu and obtained ‘No Claim Bonus’ of 20%, but the same has not been substantiated on the file. At the time of getting the insurance in question, the complainant had disclosed that earlier the truck was insured vide policy no.0573601 with Royal Sundram Alliance Insurance Company. This fact also find mention in the cover note Ex.A2 issued by the OP-Insurance Company. Neither Varinderjit Singh Sandhu nor the complainant obtained any accident claim during the continuation of earlier policy. Thus the condition of full term of completion of 12 months, if any, had been fulfilled by the complainant while getting ‘No Claim Bonus’ at the time of getting the insurance in question. Moreover, it is not the case of the OP-Insurance Company that they have obtained any declaration from the complainant regarding ‘No Claim Bonus’ under GR-27. Thus, in the absence of any separate declaration, the complainant has not violated the terms and conditions of the insurance policy. On this point, same view has been held by Hon’ble H.P.State Commission, Shimla in National Insurance Company Vs. Prem Singh titled as 2009(1) CLT page 364 to the following effect:-

“Admittedly no such declaration was obtained. Faced with this situation Mr.Thakur tried to take advantage from the affidavit of Dhruv Kumar s/o Sh.Roshan Lal, Development Officer of Una Branch of his client. What is made out from this is, that he had undertaken the insurance of the vehicle of the respondent with his (respondent’s) assurance that he has not received “no claim bonus” during the preceding three years of insurance. Moreover, this affidavit in any manner in our opinion does not improve the case of the respondent, for the simple reason that what was said by the appellant is of no consequence. To the contrary it was for the development officer to have obtained the requisite declaration as extracted hereinabove in terms of the GR-27 of the India Motor Tariff. He has not said a word as to whether the declaration was obtained by him or not in his affidavit.”



Thus, relying upon the supra authority, we hold that the OP-Insurance Company has wrongly and illegally repudiated the claim of the complainant merely on the ground that he has obtained the ‘No Claim Bonus’ of 20% by giving the wrong information. In view of these circumstances, the repudiation letter dated 27.5.2009 (Ex.R6) issued by the OP-Insurance Company is wrong and illegal and we set aside the same.

8. So far as the entitlement of the claim of the complainant is concerned, he has claimed Rs.83280/-, while the report (Ex.R7) of Sh.Charanjit Singh, Surveyor & Loss Assessors shows that the vehicle has suffered loss to the extent of Rs.70000/-. Thus, believing the report of Sh.Charanjit Singh, Surveyor & Loss Assessors (Ex.R7), we therefore hold that Sh.Gurdeep Singh complainant is entitled to Rs.70000/- only as accidental repair charges of the Truck in question.

9. To prove the aforesaid contentions, the complainant has produced his affidavit Ex.A1, copy of policy Ex.A2, copy of letter Ex.A3, copy of endorsement letter Ex.A4, copies of schedule Ex.A5 to Ex.A7, copy of RC Ex.A8, copies of bills Ex.A9 to Ex.A16, copy of legal notice Ex.A17, receipt Ex.A18, reply to legal notice Ex.A19 and we believe and rely upon the same. On the other hand, no reliance could be placed on the affidavit of Ex.R1 of Sh.Jagmohan Singh, Sr.Divisional Manager and documents Ex.R2 to Ex.R9 and we discard the same.

10. The ld. counsel for the parties did not urge or argue any other point before us.

11. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has merit and the same is accepted. The OP-Insurance Company is directed to pay Rs.70000/- as accidental repair charges of the truck in question alongwith interest @ 9% per annum from the repudiation of the claim till its payment within 30 days from the date of receipt of copy of this order. The OP-Insurance Company shall also pay Rs.5000/- as litigation expenses to the complainant. Copies of this order be supplied to the parties free of cost and thereafter the file be consigned to the record room.

CC. No. 250 of 14-09-2009

Decided on : 12-11-2009

Nishant Kumar S/o Naresh Kumar R/o Ward No. 9, Sardulgarh, District Mansa.

.... Complainant

Versus


The Oriental Insurance Company Limited, 4501, Bank Street, Bathinda through its D.M.

... Opposite party

Complaint under Section 12 of the Consumer Protection

Act, 1986.

QUORUM

Sh. George, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member


For the Complainant : Sh. Sanjay Goyal, counsel for the complainant.

For the Opposite party : Sh. M.L. Bansal, counsel for the opposite party.

O R D E R


GEORGE, PRESIDENT


1.

The complaint has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act) with the allegation against the opposite party that he got insured his vehicle Tata Indica Vista model 2008 Engine No. 0005804, Chasis No. E-1991, Registration Certificate No. PB-51-4700, vide cover Note No. 447361 for the period from 28-11-08 to 27-11-2009 and paid a premium of Rs. 12,817/-. On 11-03-2009 while coming from Rori to Sardulgarh, all of a sudden, an animal came in front of the vehicle and it met with an accident. The intimation of loss was given to the opposite party and as per his direction, complainant took the vehicle to M/s. Hemant Goyal Motors Private Limited, Patiala, for repairs. The said repairers issued the bill for Rs. 91,737/- for repairs and additional bill for parking charges. The complainant submitted the bills with the opposite party but the opposite party vide letter dated 30-06-2009 repudiated his claim on the ground that he sold his vehicle to one Jaspal Kumar. He asserts that in fact only agreement for sale of vehicle was executed with Jaspal Kumar, but the same was later on cancelled as his vehicle was hypothecated with Tata Motors Finance Limited and without payment to Finance Company, vehicle could not be transferred. Insurance Company was duly informed that he is registered owner of the vehicle, but despite this, his claim has been rejected. Hence, this complaint for issuing directions to the opposite party to pay him Rs. 91,737/- alongwith interest till the date of payment regarding repair, and Rs. 150/- per day as parking charges from 11-03-2009 till the date of delivery as M/s. Hemant Goyal Pvt. Ltd., refused to give the delivery of the vehicle without payment of repair charges and parking charges. The opposite party be also directed to pay Rs. 5500/- as litigation expenses.
2.

The opposite party filed reply taking legal objections that complainant is not consumer; neither accident has taken place nor any intimation was given nor any FIR/DDR was got recorded nor spot survey was got conducted and the complainant has not come with clean hands. It has been submitted that after the accident, the complainant took his accidental vehicle to Patiala to get it repaired and only at that time, he intimated the opposite party regarding accident. On receipt of information, the opposite party deputed Surveyor & Loss Assessor and also deputed Investigator to investigate the accident who vide their report disclosed that at the time of accident, complainant had no insurable interest as he has already sold the vehicle in question to one Jaspal Kumar. So, the claim of the complainant has rightly been repudiated after thorough investigation.
3.

In support of his averments contained in the complaint, the complainant has produced in evidence his affidavit Ex. C-1, photocopy of R.C. of vehicle Ex. C-2, photocopy of Insurance Cover Note Ex. C-3, photocopy of letter dated 30-06-09 Ex. C-4 and photocopy of estimate Ex. C-5.
4.

To controvert the evidence of the complainant, the opposite party tendered in evidence photocopy of letter dated 30-06-09 Ex. R-1, photocopy of scrutiny cum summary form Ex. R-2, photocopy of survey report Ex. R-3, photocopy of statement Ex. R-4, photocopy of claim form Ex. R-5, photocopy of RC of vehicle Ex. R-6, photocopy of driving licence Ex. R-7, photocopy of Investigation report Ex. R-8, photocopies of statement of Sh. Nishant Kumar Ex. R-9 & Ex. R-10, photocopy of letter dated 26-03-09 Ex. R-11, photocopy of application form under cashless scheme Ex. R-12, copy of policy Ex. R-13 and affidavit of Sh. J L Ahuja, Senior Divisional manager Ex. R-14.
5.

We have heard learned counsel for the parties and have gone through the entire record of the case.
6.

The claim of the complainant has been repudiated on the ground that the complainant has no insurable interest as he has already sold his vehicle to one Sh. Jaspal Kumar. The perusal of the Survey Report Ex. R-3 of Sh.. Mandeep Kataria, Surveyor & Loss Assessor shows that he assessed the loss to the tune of Rs. 77,080/-( less salvage value of Rs. 2800/). This fact remained uncontroverted. The opposite party has admitted that the accident occurred and complainant has suffered loss as per the surveyor of the opposite party to the tune of Rs. 77,088/-. The only reason for repudiating the claim of the complainant which is being put forward on behalf of the opposite party is that the complainant had sold his vehicle No. PB-51-4700 to one Jaspal Kumar and as such, on the date of accident i.e. 11-03-2008, the complainant has no insurable interest in the vehicle. This contention raised on behalf of the opposite party appears to be totally unsustainable for the reason that registration of the vehicle was in the name of the complainant on the date of accident.
7.

The onus is upon the opposite party to prove that the complainant has sold the vehicle in question to Jaspal Kumar which he has utterly failed to prove whereas on the other hand, the complainant in support his pleadings that he has not sold his vehicle, has placed on record photocopy of Registration Certificate Ex. C-2 which clearly reveals that vehicle in question is in the name of Nishant Kumar, complainant. Ex. C-3 is the copy of Insurance Cover Note which also shows that Tata Indica Vista bearing registration No. PB-51- 4700 is insured for Rs. 4,94,000/- w.e.f. 28-11-2008 to 27-11-2009 with the opposite party in the name of complainant. Even otherwise the surveyor of the opposite party has also mentioned in this survey report Ex. R-3 that R.C. of the vehicle is in the name of Nishant Kumar, complainant. The surveyor after verifying all the documents of the vehicle i.e. R.C. driving licence and insurance particulars has assessed the loss to the tune of Rs. 77,080/- vide his report dated 18-05-2009 Ex. R-3. This report is not challenged in any manner by the complainant.
8.

The report of Sh. Satish Kumar Bansal Investigator, solely depends upon the statement of complainant who has clearly stated in para No. 6 of his affidavit Ex. C-1 that “agreement for sale of vehicle was executed but same was later on cancelled”. It is also not clear from the record that as to whether Sh. Satish Bansal was appointed by opposite party as Investigator after obtaining proper and prior permission from the Controller of Insurance which is mandatory requirement under Section 64 UMG (3) of Insurance Act, or not. The Insurance company is not definitely empowered to appoint second surveyor and describe him as an Investigator. In this view of the matter, we are fortified by the observations of the Hon'ble State commission, Punjab Chandigarh in the case Jagdamba Inustries Vs. National Insurance Company Limited III(1999) CPJ 131 wherein it has been held that “Investigator was not to act as an appellate authority against the report of the previous surveyor. Further more, such an Investigator/Surveyor was not appointed after taking approval of the Insurance Controller as envisaged under Section 64UM(G)(3) - Deficiency in not settling the claim proved.” Thus, we are of the considered view that survey report of Sh. Mandeep Kataria, final surveyor of the opposite party is valid in all respects.
9.

The complainant being a registered owner having valid Insurance is definitely entitled to be indemnified for the loss he has sustained due to accident. This view is supported as per the judgements delivered by our own Hon'ble State Commission, Chandigarh, in the case of Harjit Singh Vs. New India Assurance Co. Ltd., I(2007) CPJ 349 wherein it has been held that the “Original owner alone has locus standi to claim insurance from insurer.” and in the case of Oriental Insurance Company Limited & Anr Vs. Dharam Pal I(2007) CPJ 150 wherein it has been held that “Even assuming that complainant sold vehicle, registration certificate continued to stand in his name. Legally, complainants would remain owners on the basis of registration certificate – Insurer not absolved of its liability to indemnify insured – Liable.” The assessment made by the surveyor is not at all challenged either in the pleading or in the affidavit Ex. C-1 filed on behalf of the complainant. The opposite party kept the claim pending without settling the same till date on flimsy grounds as referred to herein above and therefore, the complainant is entitled for the loss as assessed by the surveyor, in his report Ex. R-3. Due to non payment of claim/repair charges, the vehicle remained parked as the said repairer refused to give delivery of the vehicle. In Ex. C-5 bill of M/s. Hemant Goyal Motors Pvt. Ltd., it has been specifically mentioned that at Sr. No. 5 “Parking 150 per day charges applicable if customer not taken delivery after repair or not job done or case of total loss”. Accordingly, in addition to this, he is also entitled for parking charges.
10.

No other point was urged before us at the time of arguments.
11.

In the result, the complaint is accepted against opposite party . The opposite party is directed to pay to the complainant an amount of Rs. 77,088/- minus Rs. 2800/-, alongwith interest @9% P.A. w.e.f. 12-06-2009 (The date calculated on expiry of three months period from the date of loss, a period required for processing the case in an effective manner in normal course) till final payment besides parking charges @ Rs. 150/- per day w.e.f. 12-06-2009 till the date the claim is paid to the complainant.

The compliance of this order be made within 45 days from the date of receipt of copy of this order.

The copy of this order be sent to the parties concerned free of cost and the file be indexed and consigned.

C.C.No.190 of 2008
BETWEEN:
1. Penumatcha Radha,

W/o. late Umasankara Raju

2. Penumatch Balanjaneya Raju,

S/o. late Umasankara Raju

3. Penumatcha Tulasi Chakravarthy Raju,

S/o. late Umasankara Raju


2nd and 3rd complainants are being minors

rep. by their guardian, next friend, mother i.e.,

1st complainant

All are residents of Buddam Village,

Karlapalem Mandal, Guntur District. … Complainant

AND



The Oriental Insurance Company,

Rep. by its Divisional Manager,

Divisional Office, SBH up stairs,

Santhapet, Ongole-1. … Opposite party





This complaint coming up before us for final hearing on 23-11-09 in the presence of Sri S.B.Tajjudin, Advocate for complainant and of Sri K.Srinivasa Rao, Advocate for opposite party, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:



O R D E R

Per Sri T.ANJANEYULU, PRESIDENT:

This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant claiming sum of Rs.2,00,000/- being personal accident claim and interest thereon apart from legal expenses from opposite party.

The brief facts of the case are that

The deceased Penumatcha Umasankara Raju, S/o. Subba Raju was working as a driver of lorry bearing No.AP 27 V 7327, which belongs to one K.V.Chennakesava Rao. On 16-07-07 another lorry bearing No.AP 27 W 1827 met with an accident near Penugollu Bridge, while transporting super from Visakhapatnam to Markapur. On the directions made by owner the deceased took his lorry bearing No.AP 27 V 7327 went to the spot of accident, got loaded the super from vehicle No.AP 27 W 1827 and while the said lorry is being tied with a pipe, on 19-07-07 at about 12.30 am to the back of the lorry No.AP 27 V 7327 by the deceased, the driver of another lorry AP 31 X 9936 negligently with high speed dashed from behind the lorry No.AP 27W 1827. As a result of which, the deceased and one Koonisetty Venkateswarlu who were working between two lorries sustained fatal injuries and died instantaneously. The driver of lorry AP 27 W 1827 submitted report to S.Rayavaram Police Station and the police registered a case as crime No.71/2007 against the driver of lorry AP 31 X 9936 under section 304A.

The deceased is a lorry driver and aged about 42 years at the time of accident. The complainants herein are the legal heirs of the deceased. They have no other property and no other source of income and they were totally depending on the income of deceased. Due to accidental death of the deceased, the complainants have lost their dependency.

The complainants have filed Workmen Compensation case against the opposite party and the owner of lorry. The complainants came to know that the opposite party received additional premium for additional risks of personal accidental claim to driver and cleaner for Rs.2,00,000/- each. The opposite party has not paid the said claim which was covered under the policy. Therefore, the complainants are entitled for an amount of Rs.1,00,000/- towards personal accidental claim under the policy coverage with interest at 12% p.a. from the date of accident till the date of payment. Finally, the complainant got issued registered legal notice dt.20-06-08 to opposite party for payment of Rs.2,00,000/- towards personal accident claim. The opposite party received the same and kept quiet without giving any reply. Due to attitude and behavior of opposite party, the complainant suffered lot mentally and financially and this amounts to deficiency of service under the provisions of Consumer Protection Act. Hence, the complaint.

The opposite party has filed its version denying all the allegations made in the complaint. It is submitted that the complainants are not consumer within the meaning of Consumer Protection Act and provision of said act are not applicable. The deceased said to have died on 20-07-07, but this opposite party was not intimated about his death by his legal heirs except filing this case on 03-10-08 before this Forum. As per the terms of policy, the legal heirs are required to give intimation of death immediately, but no intimation was given either by insured or by legal heirs. Thus they violated the terms and conditions of policy, which are to be adhered strictly as the same is contract between the insured and insurer. It is further submitted that no claim was laid before this opposite party till today, as such the complainant cannot find fault with this opposite party. As there is no claim, the question of repudiation does not arise. There is no deficiency of service on their part. The complainants have claimed sum of Rs.2,00,000/-. But the insured cover personal accident for driver to the tune of Rs.1,00,000/- only but not Rs.2,00,000/-. Therefore, it is prayed to dismiss the complaint with costs.

Both sides have filed their respective affidavits. The complainants have filed documents vide Ex.A1 to A9. Whereas the opposite party filed copy of policy vide Ex.B1.

Now the points for determination are that

1. Whether there is any deficiency of service on the part of opposite party?
2. To what relief the complainant is entitled?

POINT No.1

The complainant rely upon copy of FIR vide Ex.A1 in which S.Rayavaram P.S. of Visakapatnam District registered a case in crime No.71/07, copy of postmortem report vide Ex.A2, copy of inquest repot vide Ex.A3, copy of MVI report vide Ex.A4, copy of legal notice dt.20-06-08 vide Ex.A5, acknowledgement vide Ex.A6, copy of policy issued by opposite party vide Ex.A7, copy of driving license vide Ex.A8 and copy of ration card vide Ex.A9. According to them the deceased died in an accident which is a proved fact as per the above material on record and that after his death the complainants herein have filed case against the owner of lorry and opposite party under Workmen Compensation Act for compensation due to death of deceased as he was an employee of K.V.Chennakesava Rao, the lorry owner. At that time it has come to the knowledge of complainants that the owner of lorry has also paid additional premium for additional risk of personal accident claim of driver and cleaner, as such the claimants are entitled for the sum payable under the policy. Of course in the complaint it is shown as Rs.2,00,000/-, the policy is covered for Rs.1,00,000/- as contended by learned counsel for opposite party. This aspect is also conceded by learned counsel for complainant. Further it is contented on behalf of complainants that the opposite party has not settled the claim despite of issuing legal notice and on its receipt the opposite party kept quite, due to which act the complainant suffered mentally and financially. Hence, the complaint.

The learned counsel for opposite party raised his contentions in accordance with the version filed and lastly contends that there was no intimation of death of deceased either by the insured or by the legal heirs of the deceased and as there was no claim, the question repudiation does not arise. Therefore, there is no deficiency of service as such he prayed to dismiss the complaint. Further it is prayed that this complaint is to be dismissed even without giving direction to the complainant for submission of claim form along with required documents and the opposite party to process the same as per terms and conditions. According to him such a direction is uncalled for in absence of alternative relief asked by the complainants.

The learned counsel for complainant contends that the death of deceased is very much known to opposite party in which the complainants herein (legal heirs) initiated proceedings under Workmen Compensation Act against the owner of lorry and as well as this opposite party and at that time itself, the coverage of additional risk to the driver and cleaner of lorry came to be known as such it should have settled the claim. Further his contention is that the claim has not been settled despite of issuing legal notice to opposite party. It is also impressed upon the Forum that the insurance company is not handing over claim forms despite of requests made by claimants in other cases and this is practical difficulty being faced by them, which this Forum shall take note of the same. He also rely upon the following decision reported by AP State Commission in s2009 (1) CPR 121, Balaiah Vs. Thimmappa and Anr., in which accident has been occurred on 1999 and consumer complaint was filed in 2004. Since policy was neither settled nor repudiated inspite of service of legal notice. It is held that there was continuing cause of action; complaint was not barred by limitation.

In the instant case there is no dispute about coverage of additional risk under the policy to the driver and cleaner of the vehicle in question. The coverage is to the tune of Rs.1,00,000/-. It is also evident from record that the claimants have issued legal notice for settlement of claim and it has been received by opposite party. But there was no response from them. The main contention of opposite party is that since there was no claim, as such no repudiation and no deficiency of service. Further the learned counsel for complainant also make a request on the Forum while disposing of this case, no direction shall be given to the effect that insurance company to process the claim as per the terms on receipt of claim forms along with required documents.

Therefore a question that arises for consideration in disposal of this case is to whether this Forum is competent to make such a direction or not.

The opposite party in one way raised main plea that there is no claim and no repudiation, as such there is no deficiency of service and prayed for dismissal. Further he urges this Forum not to give such directions as it would be binding on the parties concerned. In short, the insurance company simply prays for dismissal of complaint without such a direction. It is to be observed that the deceased in this case is not bound by contractual obligations as he is not an insured under the policy. The policy covers the risk of driver and cleaner. As the deceased who was working as driver in the vehicle owned by its owner for which the policy is obtained, the present claim is laid in the aforesaid circumstances. Therefore, while disposing of consumer dispute, the essence of an order is important. Particularly, in consumer disputes, satisfaction or dissatisfaction of consumer will be based on the kind of relief granted. Under a beneficial legislation like Consumer Protection Act, the Forum should carefully consider the kind of benefit or relief that can be passed as per the provisions of law. The provisions in the Act should be construed in favour of consumer. Therefore, the Forum should strike a balance between the legal provisions and consumer aspirations to bring the matter to a logical conclusion.

In view of aforesaid discussion, we dispose of this complaint with an observation that the complainants shall submit claim form along with required documents and thereupon, the opposite party shall process the claim in accordance with the terms and conditions of policy and settle the same.

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

The complainants shall submit claim form along with required documents and thereupon, the opposite party shall process the claim in accordance with the terms and conditions of policy and settle the same. Each party shall bear their own costs. Order accordingly.

Dictated to Junior Steno, transcribed by her, corrected by us and pronounced in the open Forum, this the 27th day of November, 2009.

CC.No.362 of 2007

BETWEEN:

Annapurna Enterprises,

Rep. by its Partner,

Chunduru Ramanjaneyulu,

Zinnatower Centre,

Guntur. … Complainant

and

The Oriental Insurance Company Limtied,

Rep. by its Branch Manager,

City Branch-II,

5-50-40, 6/13 Brodipet,

Guntur. …Opposite Party

This complaint is coming up before us for hearing on 09.11.2009 in the presence of Sri M. Seetharamdas, advocate for complainant and of Sri K.B. Prasad, Advocate for opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R
Per Sri T. Anjaneyulu, President:-

This complaint is filed U/S 12 of the Consumer Protection Act, 1986 by the complainant against opposite party for payment of Rs.2,46,811/- towards loss of value of goods damaged, Rs.1,00,000/- towards damages and for costs of litigation.

The case of complainant in brief is that: Complainant is the firm registered under Indian Partner Ship Act. It is both a Ginning Mill and a Trading concern in cotton. It sold 55 fully pressed cotton lint bales of MCU — 5 variety to V.R. Textiles Pvt Ltd Nallur (Punjai- Puliam Patti’ Sathi taluk, E.Road District) Tamilnadu under invoice No.28 dt.16-11-06 for Rs.6,23,316/- F.O.R. delivery at the factory. The cotton bales were transported by Lorry No. AP 21 T 1972, belonging to Satya Dev Road Lines, Guntur under L.R.No 3257 dt.16-11-06. The complainant took an open policy of Inland Transport for Rs.Two crores under policy No.88 of 2006. The duration of policy is from 02-12-05 to 01-12-06. As it is open policy complainant has to give declaration according to conditions. Accordingly, complainant gave a declaration under Form No.256697 dated 16-11-06 which was acknowledged by opposite party on 17-11-06. Later complainant came to know that the Truck carrying goods capsized during transit at Guravaraju Palli on Srikalahasti & Renugunta Road on 17-11-06 at 12 noon. This was intimated by purchaser factory on 20-11-06 by telegram. Subsequently, complainant came to know that due to the accident i.e., capsizing (Turning Turtle), the diesel oil tank of the truck broke and oil spilled over 51 bales, there by soaking the bales and damaging 51 bales. The truck driver without intimating the complainant took entire load of 51 bales of damaged and 4 bales of undamaged one’s to the destination point. As bales are damaged due to diesel oil soaking the purchaser factory refused to receive the same and the bales were unloaded and stacked on the road in front of factory in the presence of local surveyor and officers who were deputed by opposite party with the consent of opposite party the bales were brought back to the premises of Gayathri cotton Pressing Mills Pvt., Ltd, Kurnootula by lorry No. T.N 23 E 3697 under LR GC No 232 dt.04-12-06 by paying freight charges of Rs.9,000/-. Every stage was intimated to the opposite party and the complainant followed the procedure according to the instructions of opposite party. Till 19-12-06 no further action or steps were taken by opposite party. For the first time a surveyor intimated the complainant to conduct salvage and segregation operation by his letter dt.19-12-06 which was replied stating the non-practicality and non feasibility of conducting segregation operations. It is also suggested to opposite party to conduct segregation process by selecting any number of bales at random and asses the loss. But for the reasons best known opposite party resiled from its promise and took up on this aspect of segregation.

It is respectfully submitted that segregation of 55 bales of cotton lint involve lot of labour and likely to consume enormous time apart from being prohibitively costly. Taking all these into consideration the

Complainant tried his level best to convince the opposite party to agree for selling damaged bales and settle the claim for difference of costs. But opposite party has assumed most adamant and intransigent attitude may be the opposite party thought that by segregation and alleged salvage operations the benefit would be more. It could have done the same as contemplated under law with out insisting the complainant to do it. Thus it is clear that opposite party is not willing to settle the claim but is out to scuttle the claim of the complainant by asking the complainant to do the impossible which is futile exercise as the cost of segregation would have been more than the value.

The complainant requested the President of Chamber of Commerce, Guntur to conduct open auction of sale of damaged bales after due publicity. The same was done and auction was conducted in the premises Gayathri Cotton Pressing Mills Pvt Ltd, Kumootala on 07-03-07 in the presence of the President of Chamber of Commerce, Guntur and others about 15 bidders participated and successful bidder was Sri Venkata Ramana Cotton Corporation, Guntur for Rs.3,53,394/- for 51 bales and Rs.41,385/- for 4 undamaged bales. The complainant time and again requested opposite party to be present at auction sale persuant to publication made on 28-02-O7 in Andhra Bhoomi daily, Guntur.

The loss due to damage is Rs.2,28,537/- according to official authentic price and data available. The opposite party also bound to reimburse complainant for the expenses and freight charges incurred. Separate schedule is given indicating the details. The result was intimated to opposite party who disowned its liability.

It is respectfully submitted that opposite party being the insurer and as the policy is subsisting is bound to reimburse the complainant of the loss and damage suffered by it as detailed in the schedule.

The complainant is a customer who paid a premium to the opposite party who is bound to render service by paying the loss suffered by the complainant. As it did not do so there is deficiency of service which this forum has to adjudicate up on.

The opposite party should have settled the claim with in one month from the date of accident. The non-settlement of claim, within reasonable period deprived the complainant of use of his money. The opposite party has to pay interest to its bankers and it is deprived of money, hence opposite party is bound to pay interest at 24% per annum both under law and equity.

Opposite party filed its version denying most of the allegations made in complaint. Further, it is submitted that if a truck was capsized it was neither intimated to complainant nor to the police authorities or to the purchaser by the driver. Therefore, the allegation that the truck was capsized when it was carrying goods in transit on 17-11-06 is unbelievable without any document like FIR etc. As per version of complainant the load was sent on 16-11-06, whereas a telegram was received by complainant from purchaser, before unloading the stocks, wherein they noticed some oil stains on two bales only. The complainant sent a letter to purchaser on 20-11-06 with a request not to pay freight charges with a view to recover damages from truck owner. This itself shows that allegations of complainant about damage of 51 bales is incorrect. They have not opted for spot recovery also.

The complainant did not inform this opposite party immediately for making spot inspection of the goods. Hence, opposite party is not liable to pay any amount much less claim amount. The complainant sent a letter on 21-11-06 with false information that the stocks were damaged due to accident and not suitable for consuming as such the purchaser stopped unloading. The purchaser informed the complainant to depute their representative for the purpose of unloading stocks. This goes to show that they never objected the same.

Further, it is submitted that complainant had not co-operated for segregation to assess the alleged loss at Coimbattore stating that he was not having any infrastructure and requested for permission to lift the stocks from purchaser Mill to Guntur, where he can get the stocks segregated. This was also considered by opposite party in their letter dated 29-11-06 subject to “not holding any risk” while transit from Mill to Guntur. Even after reaching the stocks to Guntur surveyor was deputed and he has attended immediately. He advised complainant the get the bales opened and segregated to arrive at the quantum of loss. The surveyor also sent letter reminding the said job, but the complainant did not take any steps in that direction and not co-operated for segregation of damaged stock from undamaged. The complainant has conducted auction in collision with auction purchaser and others for which insurance company is not responsible and liable, since he has not co-operated for segregation. Therefore, it is prayed to dismiss the complaint.

Both sides have filed their respective affidavits and as well as documents. On behalf of complainant Exs.A-1 to A-29 are marked and on behalf of opposite party Exs.B-1 to B-4 are marked.

Now the points for determination are that,

1. Whether there is any deficiency of service on the part of insurance company in not settling the claim?

2. Whether complainant is entitled for amounts as claimed for?

3. To what relief?



POINT No.1:- As seen from pleadings of parties and their respective submissions the dispute in question is confined to following aspects:

Capsizing the truck while carrying goods at the place known as Guravaraju Palli on Srikalahasti & Renugunta Road on 17-11-06 at 12 noon is doubted by the insurance company, as the truck driver failed to intimate the same either to complainant or to purchaser or insurance company for want of required documents.

Secondly, as per intimation received from purchaser, only 2 bales were damaged but not entire goods as alleged by complainant.

Thirdly, segregation of damaged goods was not carried on by complainant either at purchasers place or at Guntur as demanded by insurance company as such there is no deficiency of service on their part and not liable for the amount as claimed here under.

The complainant is a Ginning Mill and trading concern in cotton. It has sold 55 fully pressed cotton bales of MCU-5 variety weighing about 110.28 kg @Rs.20,100/- per candy or Rs.5652/- per quintal to V.R. Textiles Pvt Ltd Nallur (Punjai- Puliam Patti’ Sathi taluk, E.Road District) Tamilnadu under invoice No.28, dt.16-11-06 for Rs.6,23,316/- which is evident from Ex.A-4. The cotton bales were transported by lorry b.No. AP 21 T 1972, belonging to Satya Dev Road Lines, Guntur under L.R.No.3257 dt.16-11-06. The complainant also gave declaration about the same as per conditions of policy on the same date and it was endorsed by opposite party on 17-11-06 in favour of V.R. Textiles Pvt Ltd, Nallur Punjai- Puliam Patti. On 20-11-2006 VR Textiles Private Limited sent a telegram stating that they have received 55 bales of MCU-5 variety cotton (lot No.13) from complainant @Rs.20,100/- today (20-11-06). Before unloading the said lot they have noted oil stains in two bales stacked in one of the sides of the lorry. The lorry driver says that the lorry had met with minor accident near Tirupathi and above oil stain is due to oil leakage from the lorry on the cotton bales. They have decided to unload the said lot only in the presence of complainant representative. They requested to depute one representative to their Mills immediately to unload the said bales (vide Ex.A-5). On the same day the complainant addressed a letter to the purchaser (vide Ex.A-6) stating that their person informed over phone that while unloading the goods they have noticed oil marks on two bales and they have stopped unloading. According to their instructions they need one person on behalf of complainant. Further complainant requested to unload the stock and not to pay freight to the truck and endorse ‘freight not paid’ to enable complainant to recover damage from the truck owner. Complainant also informed about deputing their representative Mr. T.Vara Prasad of Coimbattore to attend on their behalf, to discuss and finalise the damage with driver.

Thereupon on the very next day i.e., on 21-11-06 (Ex.A-7) the complainant has informed the opposite party (insurance company) about all the facts i.e., with regard to sale of 55 bales variety at Rs.6,23,316/- to VR Textiles Private Limited that now the said Mill informed them noticing oil stains on cotton bales due to accident and not suitable for consuming by them and stopped unloading and detained the truck. The truck with stock is lying in Mill premises. Hence, requested to depute their surveyor to assess the loss at earliest and oblige. Again, the complainant addressed a letter dated 27-11-06 vide Ex.A-8 to the opposite party stating that 55 cotton bales lying in open yard at Mill premises at Nallur. The Mill people not allowing to provide shelter to do the process. As complainant stranger to that place, all their efforts are in vain to get infrastructure to do the process according to surveyor’s directions. As the stocks are lying in open place, suffering from rains, heat of sunlight, the complainant is requesting to permit them bring the stock to their place to avoid further loss i.e., decreasing of quality, price fluctuations which are untolerable and unbearable to them.

In pursuance of the said letter the insurance company addressed a letter dated 29-11-06 vide Ex.A-9 which reads as follows”

“We invite reference to your letter 27th instant regarding the above claim, the competent authority has agreed to shift the damaged cotton FP bales from Nallur (Tamilnadu) to your place i.e., Guntur, subject to not holding any risk, while the consignment is in transit from Mill premises to Guntur. Hence, you are advised to inform us whenever the stock is reached here to enable us to depute a surveyor to assess the loss”.

Thereupon on 06-12-06 complainant addressed a letter vide Ex.A-10 to the Insurance Company informing that the cotton bales reached Guntur and lying at M/s Gayathri Cotton Pressing Mills Private Limited, 5th line, Kurnoothala (Pulladigunta) and requested to do needful at the earliest.

The SI of Police, Renigunta Police Station, Chittor District gave certificate (vide Ex.A-23) to the effect that the driver of the lorry b.No.AP 21T 1972 by name C.Bhoopathi aged about 33 years S/o K.China Swamy, A.N.Kandigai, 2nd street, Palanipet, Arkonnam, N.A. District drove the vehicle in a rash and negligent manner and allowed his lorry to upside on the left side of the road i..e, on southern side to the road near Guravarajupalli on Sri Kalahasti and Renigunta Road on 17-11-06 at 12.00 noon while he was proceeding from Annapoorna Enterprises, Guntur to V.R.Textiles, Punjai Pullian Pati of Coimbattor of Tamilnadu and caused damage to the vehicle and the load of cotton bales vide invoice No.28. In this regard necessary enquiries have been made and it is learnt that the above said accident is true.

Satya Dev Road Lines Transport company also gave certificate to that effect and the damaged bales were unloaded at M/s.V.R. Textiles Private Limited premises at Nallur (vide Ex.A-24).

From the above evidence on record the complainant established that their goods dispatched in lorry b.No.AP 21T 1972 turned turtle on the road near Guravarajupalli on Sri Kalahasti and Renigunta road on 17-11-06 at 12.00 noon while proceeding to M/s. V.R.Textiles Private Limited, Tamilnadu and due to this accident the cotton bales were damaged.

It is no doubt true that neither the purchaser/complainant nor the insured got the information about this occurrence, as the driver of the truck did not take steps to do so. The driver is not an employee of the complainant nor is the truck owned by him. The truck belongs to Satya Dev Road Lines in which the goods were dispatched to the purchaser. It appears that after this occurrence, the driver could able to manage to lift the vehicle with load and proceed to its destiny to unload the same. It is that at the time of unloading, the purchaser came to know about the damaged condition of cotton bales due to accident of lorry as informed by driver. As they could notice oil stains on two bales only before unloading, they have informed the same to complainant through their telegram dated 20-11-06 vide Ex.A-5. Thereafter necessary correspondence as referred above took place in between complainant, purchaser and the insurance Company. Therefore, it is not proper on the part of insurance company to make an allegation that incident itself is doubtful for want of intimation and required documents. When complainant himself came to know about the said incident after a gap of 3 days as per telegram vide Ex.A-5, the question of intimating insurance company on the very same day or next day of incident does not arise. In view of availability of material on record the incident that lorry turned turtle and goods damaged cannot be doubted.

The 2nd aspect of case is that Insurance Company alleges that only two bales were stained with oil but not other bales as per telegram received from purchaser vide Ex.A-5. We have seen from the above referred material that the complainant arranged his representative from Coimbattore for the purpose of unloading the goods from lorry as demanded by the purchaser. The complainant also informed vide Ex.A-7 to insurance company to arrange their surveyor to assess loss. It appears that opposite party arranged a surveyor at Mill premises at Nallur, where the stock was unloaded but surveyor demanded to segregate the damaged cotton bales to complete the survey. The Mill people have not allowed to provide shelter for a longtime. The complainant was unable to provide infrastructure at that strange place and carry out process as per the directions of surveyor. Therefore, he got permission from insurance company to shift entire stock to Guntur from Tamilnadu vide Ex.A-8. The insurance company also granted permission as seen from letter vide Ex.A-9. From this correspondence one cannot say that only two bales were damaged as per the telegram dated 20-11-06 issued by purchaser. Their personnel noticed two oil stained bales lying on one side of truck even before unloading the same. From this one cannot conclude that two bales were only damaged. As a matter of fact, the surveyor of insurance company has seen the stock openly lying in Mill premises but wanted segregation of stock of each bale which was impossible task for complainant at that place to do so. On the other hand, there is no correspondence or report from surveyor from that place that only two bales were damaged and rest of goods were in undamaged condition. Therefore, we find no truth in the allegation that two bales alone were damaged out of entire stock.

The last aspect of case is that about segregation of damaged stock. As already pointed out supra, the complainant has informed the insurance company after reaching goods to Guntur and lying the stock in M/s Gayathri cotton Pressing Mills Pvt., Ltd vide Ex.A-10 dated 06-12-06. They have also furnished necessary documents such as copy of insurance policy, declaration, original invoice, original way bill, the damage certificate issued by the carriers as asked by the surveyor through his letter dated 21-12-06 vide Ex.A-14 and A-15. There is no dispute about the same. Thereupon the insurance company again through their letter dated 02-01-07 vide Ex.A-16 informed complainant to do segregation of said damaged consignment in order to assess the loss by surveyor. Upon receipt of same the complainant vide its letter dated 13-01-07 vide Ex.A-17 informed that insurance company is postponing assessment of damage for impracticable and unnecessary reasons about salvage which is not practicably feasible. It is also protested stating that in past they have rightly appraised the company about defects and hardship in conducting salvage process which is not only time consuming but also most expensive. Further, it is informed to do random pick up from bales and conduct salvage process and assess the loss. It is strongly informed that they are dogmatic and intransigent and failed to see reason or fairness. Lastly, it is informed that they would wait till 20th January and then sell the goods in open market and claim compensation for the loss sustained by them with interest @24% p.a., As against this letter insurance company addressed letter (date wrongly mentioned as 17-11-06) vide Ex.A-11 stating that the segregation procedure is a must for assessing the damaged consignment through letter dated 13-01-07 (Ex.A-17) speaks that complainant is trying to avoid segregation of damaged stocks even though the insurance company is insisted for same. It is also informed that they are not liable for further damage to the stocks. Thereupon complainant replied vide its letter dated 20-01-07 vide Ex.A12 that in view of attitude of insurance company, they are left with no other alternative than to sell the damaged goods after due publication, in the presence of officials of A.P. Cotton Association and claim the difference of price as damages/compensation.

Accordingly, the complainant has taken steps in addressing a letter to the President of Indian chamber of Commerce, Guntur vide its letter dated 06-02-07 (Ex.A-25) informing entire episode that took place including correspondence in between them and insurance company and requested him to conduct open sale after giving due publicity in order to be a fair sale and competitive price can be fetched. The complainant also took further steps in giving vide publicity of auction to be conducted on 07-03-07 at 11.00 am by publishing the same in ‘Andhra Bhoomi’ daily newspaper on dt.28-02-07 and as well as distribution of pamphlets. This is also informed to the President of Chamber of Commerce vide their letter under Ex.A-27. They have also informed insurance company about conducting auction on 07-03-07 at 11.00 am in the premises of M/s Gayathri cotton Pressing Mills Pvt., Ltd and requested them to be present vide Ex.A-18. As per record placed before this Forum about 15 bidders were participated in the auction and sale was knocked down in favour of M/s Sri Venkata Ramana Cotton Corporation, Guntur for 51 bales at Rs.3,53,394/-, the stock was sold @12,000/- per candy. They have also sold 4 undamaged cotton bales for total sum of Rs.41,385/- separately @Rs.18,450/- per candy in favour of same firm. The photographs are also placed on record which shows oil stains are found on cotton bales. Some of cotton bales were also opened and loose cotton was found and number of persons were present at the side and verifying the cotton.

As seen from the above material on record, complainant felt that it is a herculein task to conduct segregation work that is separating damaged cotton from good cotton from each bale as it is most time consuming and expensive one, for which this could not be under taken at Nallur and even at Guntur also. They have demanded insurance company to assess the damage through their surveyors after picking up the cotton at random from some bales. It appears that insurance company has not agreed for the same and insisted upon that segregation is a must for assessing damage. As there was no other alternative for complainant, it is also informed about sale of damaged cotton in open auction with the assistance of the President of Chamber of Commerce after giving vide publicity and claimed the loss sustained after deducting the sale proceeds, hence this complaint for balance amount of Rs.2,46,811/- which includes freight charges, loading and unloading charges. This apart complainant claiming Rs.1,00,000/- towards damages and interest.

The learned counsel for complainant also supplied the relevant portions from law of insurance with regard to salvage, which reads as follows,

“Salvage: The literal meaning of the term is the rescue of a ship, its cargo or other properties from loss at sea or destruction from fire. In Webster’s Third New International Dictionary this term has been defined as the compensation paid for saving a ship or its cargo from the perils of the sea or for the lives and property rescued in a wreck, the act of saving or rescuing a ship or its cargo, the property saved from destruction. Thus, according to this definition, the salvage is the rescued property, etc. of a ship from sea perils. But in the insurance terminology, it means the properties which escaped destruction or damage from an insured peril. It is in fact the property that remained unaffected from the damage, or partially damaged. The residual value of partially damaged property is also known as salvage. This remained property may be reconditioned or sold to determine the amount of loss”.

From the above it is understood that salvage is nothing but which is not damaged for which insurance company is entitled for value of salvage. The complainant herein claiming difference of amount of value of stocks sold after deducting sale proceeds. Admittedly, 4 bales were not damaged which are sold @ 18,000/- per candy. It can also be expected that out of damaged bales some part of it would remain undamaged. It is also admitted case of complainant that process of salvage is time consuming and expensive one. Therefore, this is to be reasonably assessed and deducted out of claim made by complainant. On appreciation of facts and circumstances of case and material on record, we feel it appropriate to fix salvage at Rs.1,00,000/-. They claim net loss due to oil stains at Rs.2,28,537/-. The salvage of Rs.1,00,000/- shall be deducted out of it and the complainant can be awarded Rs.1,28,537/- towards net loss. The complainant is not entitled to freight charges and loading and unloading charges as claimed in this complaint. Equally he is also not entitled for any compensation as it sold away the damaged and undamaged goods within a short period and has recovered substantial part of its value to a tune of Rs.3,94,779/-. Hence compensation is not allowed. However, we award interest @9% p.a., on Rs.1,28,537/- from the date of complaint till the date of realization and legal expenses of Rs.1,000/-.

In the result, complaint is allowed in part in terms as indicated below:

1. The opposite party is directed to pay Rs.1,28,537/- towards cost of damaged bales with interest @9% p.a., from the date of complaint till the date of realization.
2. The opposite party is further directed to pay an amount of Rs.1,000/- towards legal expenses.
3. Rest of the claim is disallowed.
4. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of copy of order, failing which the amounts ordered in item No.2 shall carry interest @ 9% p.a. till the date of realization.


Dictated to Junior Steno, transcribed by her, corrected by us and pronounced in the open Forum dated this the 24th day of November, 2009.

CC.No.150 of 2008

Between:
Y. Srinivasa Rao,

S/o. Late Y. Pullaiah,

R/o. Sangineedipalem Village,

Bollapalli Mandal,

Guntur District.

C/o. D.Prasanna Kumar, Advocate,

5th line, Brodiepet,

Between 14-15th cross roads,

Guntur. … Complainant

AND
1. Secretary,

The Bollapalli Primary Agricultural Co-operative Society,

Bollapalli Village and Mandal,

Guntur District.

2. The General Manager,

The Guntur District Co-operative Central Bank Ltd.,

2/13, Brodipet,

Guntur-2.

3. The Branch Manager,

Oriental Insurance Co., Ltd.,

Flat No.403, 4th Floor,

Babukhan Estate,

Basheerbag, Hyderabad. … Opposite parties

This complaint coming up before us for final hearing on 04-11-09 in the presence of Sri D.Prasanna Kumar, advocate for complainant and of Sri N.Venkateswarlu, Advocate for 1st & 2nd opposite parties, and of Sri K.Bhaskara Rao, Advocate for 3rd opposite party, upon perusing the material on record, hearing both sides and having stood over till day for consideration, this Forum made the following:-

O R D E R
Per Sri T. ANJANEYULU, PRESIDENT

This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant claiming sum of Rs.50,000/- being the sum assured under the policy and other amounts for mental agony and legal expenses from the opposite parties.

The brief facts of the complaint are that:

The complainant is a permanent resident of Sangineedipalem Village, Bollapalli Mandal, Guntur District. His father by name Yalla Pullaiah, S/o. Chenchaiah died due to electric shock on 03-08-05. While he was alive, joined as a member of Buddam Primary Agricultural Cooperative Society (1st opposite party), he has availed loan under Kisan Credit Card System from 1st opposite party, which is affiliated to 2nd opposite party. The opposite parties 1 and 2 have tie-up with 3rd opposite party i.e., Oriental Insurance Company Ltd. to cover the insurance to all its members under the scheme of Janatha Personal Accident policy. The policy coverage was in force from 25-04-05 to 24-04-06. The sum assured is Rs.50,000/- for each member. Late Y.Pulliah also covered under the said policy as his death took place on 03-08-05. The complainant has informed the same to 3rd opposite party by telegram dt.04-08-05. Subsequently, he has submitted claim form along with requisite documents like FIR, death certificate, Postmortem certificate seeking settlement of claim through 1st and 2nd opposite parties. The 3rd opposite party has received all the claim documents but repudiated the claim as it was not submitted within 30 days of death. The complainant got issued legal notice on 10-03-08 explaining all the facts and requested for settlement of claim as the complainant informed death of his father very next day by issuing telegram. It is deemed that the process of preferring claim started within 30 days. Therefore, the 3rd opposite party is bound to settle the claim but they repudiated the same. This amounts to deficiency of service. Hence, the complaint.

The 1st opposite party has filed its version admitting the fact that late Y.Pullaiah died on 03-08-05 due to electric shock. The deceased was said to be a member of their society with general membership No.1697. He was sanctioned agricultural loan. The deceased was also covered under the scheme of personal accident benefit obtained from 3rd opposite party. Therefore, the deceased was having insurance coverage. All the necessary documents are filed herewith. It is the fact that Guntur District Cooperative Central Bank Ltd. (2nd opposite party) has entered into an agreement with 3rd opposite party and obtained policy for its members covering personal accident risks. The policy issued by 3rd opposite party was in force as on the date of death of deceased. However, this opposite party is not liable for risk and payment of insurance amount except 3rd opposite party. It claims that it has submitted claim form timely to 3rd opposite party. Therefore, the 3rd opposite party has to settle the same.

The 2nd opposite party has adopted the version filed by 1st opposite party.

The 3rd opposite party filed its version denying all the allegations made in the complaint and call upon him to prove them strictly. It is further submitted that the deceased died on 03-08-05 but intimation was received by this opposite party on 28-08-06 i.e., after one year. If death intimation was given in time, this opposite party could have got opportunity to investigate into the bonafides of death of deceased. This opposite party was deprived of opportunity of enquiry due to inordinate delay. This was done wantonly and deliberately. This unusual delay was to manage the death of person, which would not have been payable in terms of policy. The complainant did not give any telegram or intimation to this opposite party on 04-08-05. There is no claim intimation within 30 days from the date of incident. The complainant has taken death certificate of deceased on 18-07-08 from Tahsildar, Bapatla. It clearly shows that the claim is not within time. Therefore, it has been repudiated on 25-04-07. The complaint is also barred by limitation. There is no deficiency of service on the part of this opposite party. The complainant is not entitled for any claim amount much less an amount of Rs.82,621/-. Therefore, it is prayed to dismiss the complaint.

Both parties have filed their respective affidavits. On behalf of complainant Ex.A1 to A5 are marked. On behalf of 1st opposite party Ex.B1 to B4 are marked, Ex.B5 is marked for 3rd opposite party.

Now points for consideration are that

1. Whether the opposite parties have committed deficiency of service in not settling the claim of complainant?
2. Whether the complainant is entitled for the amounts claimed for?
3. To what relief?

POINT No.1

The opposite parties 1 and 2 support the case of complainant. But they claimed that they are nothing to do for the amount payable to complainant except forwarding the same on due verification to 3rd opposite party (insurance company). It is claimed by them that they have timely intimated the death of deceased and also processed the claim within time. They rely upon Ex.B1 showing that the deceased Y.Pullaiah was a member of their society having general membership No.1697 and subsisting loan amount of Rs.18,000/-. The opposite parties 1 and 2 also claim they have paid insurance premium for the year 2005 and 2006 vide Ex.B2 and B3, common policy issued in the name of 2nd opposite party vide Ex.B4.

The aforesaid material do not contain any documentary evidence as to show the date of processing and forwarding claim to 3rd opposite party. All the material relied upon by them is no way disputed by 3rd opposite party except the factum of date of intimation of death and submitting claim form within time schedule.

Whereas, the complainant rely upon the copy of receipt issued by department of Telecommunications of Vinukonda which shows a telegram booked to Hyderabad on 04-08-05. Basing on this document, the contention of complainant is that they have intimated the death of deceased very much within time. But as rightly pointed out by the learned counsel for 3rd opposite party, Ex.A1 does not reveal as to what type of telegram was booked and whose name it was sent. No copy of telegram is available on record. The other documents relied upon by the complainant are copy of certificate of death of the deceased vide Ex.A2, repudiation letter dt.25-04-07 vide Ex.A3, copy of legal notice dt.10-03-08 vide Ex.A4 and copy policy vide Ex.A5. The aforesaid material do not reflect as to on what date the claim form was forwarded to opposite parties 1 and 2 for onward transmission to 3rd opposite party. Legal notice got issued by the complainant speaks out simply that the death of deceased took place on 03-08-05 due to electric shock and the same was intimated on 04-08-05 but the claim documents were sent subsequently. The complainant did not choose to mention as to when exactly the claim form was submitted to opposite parties 1 and 2. As a matter of fact, there is no record available to reflect on said position. It is the contention of learned counsel for 3rd opposite party that the claim form was received in their office on 28-08-06 as against the death of deceased on 03-08-05. Thus there is delay above one year. He relies upon the policy conditions to submit that the claim form should be submitted within 30 days of date of loss. This contention is found in their repudiation letter vide Ex.A3.

In view of foresaid discussion and material available on record, we are of the view that the complainant has not placed sufficient record to establish the fact that as to when exactly he has submitted claim form along with necessary documents after the death of deceased. The complainant is not trying to explain the delay caused in any manner and seeking excuse for the same, except raising contention that he has submitted claim within time, absolutely there is no evidence except that of his own or the opposite parties 1 and 2 did not choose to file the record maintained in their office to conflict the version of 3rd opposite party on this aspect. Therefore, the fact is to be accepted that there is inordinate delay more than more year in sending claim form; it can not be condoned unless the same has been explained. Therefore, we are of the view that the insurance company did not commit deficiency of service in any manner and there is every justification in repudiating the claim. The point is answered accordingly.

POINTS 2 & 3

In view of the findings given in the preceding point, the complainant is not entitled for policy amount as sought for much less any other amount.

In the result, the complaint is dismissed. Each party shall bear their own costs.

Dictated to Junior Steno, transcribed by her, corrected by us and pronounced in the open Forum, this the 6th day of November, 2009

COMPLAINT NO.81/2009
(Admitted on 16.04.2009)
PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President

2. Smt. Sulochana V. Rao, Member

3. Sri. K. Ramachandra, Member

BETWEEN:

Sri Abdul Razak,

S/o. Sri Iddinabba Beary,

Aged about 45 years,

Residing at Bardila house,

Kelinjar Village, Kuppe Padavu,

Mangalore. …….. COMPLAINANT



(Advocate for the Complainant: Sri.S.K. Ullal)



VERSUS



The Oriental Insurance Co. Ltd.,

Branch Office,

Krishna Prasad Building,

3rd Floor, Above Pabbas,

Lalbagh, Mangalore – 575 003,

Rep. by its Branch Manager ……. OPPOSITE PARTY



(Advocate for the Opposite Party: Sri. Santhosh S. Nayak)


ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:



1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.

It is submitted that, the Complainant was the proprietor of M/s.Bharath Stone Crushers, to eke out his livelihood he started the business of stone crushing and availed financial assistance from K.S.F.C., Mangalore to the tune of Rs.3,00,000/- in the year 1993. The stone crushing unit consisting of Marshal make, Mini mark – I crusher 400 mm x 100 mm with all attachments and Prime Mover Diesel Engine of make Eicher Tractors Limited 22 HP with all accessories and fitments. It is stated that the above said plant and machinery installed in a semi permanent thatch roof shed bearing door No.196 of Iruvail Village of Mangalore Taluk and carrying on his business in stone crushing till 23.3.2000. The above plant and machinery and accessories were insured with the Opposite Party as per fire policy bearing No.422203/308/0/F/2000/1038 covering the period from 26.2.2000 to 25.2.2001 for the insured sum of Rs.2,50,102/-.

It is stated that on 23.3.2000 the above said machineries at about 10.30 a.m., while the plant was in normal productive operation spontaneous fire flame accidentally developed, consequently the entire thatched industrial shed caught fire and collapsed over the plant and machinery. Due to the fire and consequential heat generated in the industrial shed the subject matter of the insured were totally destroyed beyond usable/ reconditioning status. It is stated that due to the fire accident the Complainant suffered total loss. Thereafter the same was reported to the Opposite Party and to all the concerned authorities like police station, Tahsildar, K.S.F.C. and Government Authorities. The Complainant stated that he had submitted all the documents and co-operated with the Opposite Party for the settlement but the Opposite Party not settled his claim till date. There is no reasonable excuse or cause for delaying the settlement till date.

It is further stated that after the above incident and consequential total loss the Complainant could not repay the loan due to KSFC and who had claimed exorbitant rate of interest, cost, penal interest from the Complainant but also sold remains of the destroyed items in public auction apart from that they have filed a case under Section 29 of the S.F. Corporation Act. It is stated that the Opposite Party did not neither repudiated nor honoured the claim as required under the insurance settlement and thereafter the Complainant issued a legal notice dated 9.3.2009 to the Opposite Party even though the Opposite Party failed to comply the same amounts to deficiency in service and hence the above complaint is filed by the Complainant before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay a sum of Rs.2,50,102/- towards the insured sum along with interest at 18% p.a. from 23.3.2000 till the payment and also claimed Rs.1,26,500/- towards the damages and cost of the proceedings.



2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version contended that the Complainant is not a consumer within the meaning of the Consumer Protection Act and this FORA has no jurisdiction to entertain the complaint and the complaint is barred by law of limitation.

It is further contended that the Complainant had taken policy in the year 2000 and the policy was valid for the period from 26.02.2000 to 25.2.2001 the alleged incident occurred on 23.3.2000 and after a lapse of 9 years 2 months a claim is now made is time barred and further contended that on receiving the information the Opposite Party sent surveyor and loss assessor Mr.M.K.Vazhunnavar who had inspected the spot and had requested the Complainant to furnish several documents. Inspite of his request the Complainant had not furnished the documents. Therefore on 29.3.2000 the surveyor had addressed a letter to the Complainant requesting him to furnish the documents. The Complainant not furnished or produced any documents substantiating his claim and it has been treated as no claim and contended that the Opposite Party is not liable to pay any amount to the Complainant and prayed for dismissal of the complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant is a consumer and the complaint is barred by limitation?



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



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













(iv) What order?



4. In support of the complaint, Mr.Abdul Razak (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C9 were marked for the Complainant as listed in the annexure. One Sri.Sudhakar (RW1), Divisional Manager of the Opposite Party and one Sri. M.K.Vazhunnavar (RW2) – Surveyor/Loss Assessor – witness of the Opposite Party – filed counter affidavits and answered the interrogatories served on them. Ex R1 to R… were marked for the Opposite Party as listed in the annexure. The Complainant produced notes of arguments along with citations.

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:

Point No.(i): Affirmative.

Point No.(ii) to (iv): As per the final order.
Reasons



5. Point No. (i):

In the present case, the Complainant contended that to eke out his livelihood he had started the business of stone crushing by availing financial assistance from the KSFC Mangalore and installed plant and machinery of the stone crushing unit consisting of Marshal make, Mini mark–I crusher 400 mm x 100 mm with all attachments and Prime-Mover Diesel Engine of make Eicher Tractors Ltd., 22 HP with all accessories and fitments. The plant and machinery installed in a semi permanent thatch roof shed bearing door No.196 of Iruvail Village of Mangalore Taluk and on 23.3.2000 while the machinery was in normal productive operation spontaneous fire frame accidentally developed, consequently the entire thatched industrial shed caught fire and collapsed over the plant and machinery. Due to the fire and consequential heat generated in the industrial shed the subject matter of the insured i.e., i.e., plant and machineries and accessories were totally destroyed beyond usable/reconditioning status. Due to the fire accident Complainant suffered total loss and thereafter submitted the claim form to the Opposite Party Company but till this date the claim of the Complainant nor settled or repudiated.



Per contra, the Opposite Party contended that the complaint is not maintainable and it is time barred and the another contention taken by the Opposite Party is that on receiving the information the Opposite Party had deputed surveyor and loss assessor Mr.M.K.Vazhunnavar, who had inspected the spot on claim of fire hazard. And the surveyor had requested the Complainant to furnish several documents inspite of that the Complainant had not furnished the documents to the surveyor but the Complainant never furnished the documents nor produced any documents substantiating his claim and the claim of the Complainant was treated as no claim.



In the given case, the Complainant led oral evidence and produced Ex C1 to C9 and the Opposite Party also led evidence of RW1 and RW2 and produced Ex R1 to R10. On careful scrutiny of the documents it reveals that the above said plant and machineries along with accessories the Complainant had taken a policy in the year 2000 and the policy was valid for the period from 26.2.2000 to 25.2.2001 as per Ex R1. The alleged accident was occurred on 23.3.2000. There is no material documents/evidence available on record to show that the Opposite Party either settled the claim or repudiated the claim till this date. Just because the surveyor issued a letter by calling the documents from the Complainant cannot be treated as ‘no claim’ until and unless the Opposite Party Company issues any letter to the Complainant.

In a decision rendered by the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur; III (2005) CPJ 69; in National Insurance Co. and Another versus Shakun and Others held that:-

Consumer Protection Act, 1986 – Section 2(1)(g) – Insurance – Consignment of oil despatched – Tanker met with accident – Loss assessed by Surveyor – Claim neither settled nor repudiated for long time – Contention, complaint time-barred, not acceptable – Claim not repudiated till filing of complaint, not time barred – repudiation delayed – deficiency in service proved – Company liable. [Paras 9, 14 and 15]

Similarly in the given case, the Opposite Party Company not issued any letter of repudiation by treating the claim of the Complainant as ‘no claim’ till this date hence the complaint is not time barred and the Complainant is a consumer, complaint is maintainable. Point No.(i) held in favour of the Complainant.



Point No.(ii) to (iv):

As far as deficiency is concerned, it is proved that the Opposite Party Company neither repudiated the claim nor settled the claim till this date itself amounts to deficiency. However in the given case, the Opposite Party Company deputed the matter to the Surveyor M.K.Vazhunnavar. The said surveyor submitted the report dated 28.08.2000 i.e., Ex R3, wherein the Surveyor noted the damage as under (reproduced in his words):-

“After recording the statements furnished by the insured I have carried out detailed inspection of the subject matter establishment. My verification could not recognize any labeled mark showing door No. of the shed where the subject matter of alleged insured equipments were installed/lying after the occurrence of the fire peril. There was only skeleton laterite masonry pillars and engine room wall remaining. The thatch roof structure recognized as fire flame affected and consequently collapsed over the installed crusher unit machineries. The debries/skeleton structure of the roof were identified as removed from the collapsed position, segregated and kept aside of the shed. Further my apparent inspection could recognize the following installed stone crusher unit machineries.

(1) Marshal make Mini Mark – I Crusher/granulator bearing machine Sl.No.5641094 and

(2) Eicher Tractors Ltd. Make; Alvar (Raj) Diesel Engine, H.P -22, bearing Sl.No.58229796643 year of make - 1994, RPM 1500. All these specifications marked in the attached name plate label of the above machineries read and noted down”.

Conclusion:

On analyzing the physically inspected and recognized phenomina and also basing the informations gathered during survey visit and enquiry, I could reasonably precipitated the opinion that fire might have been probably resulted from spark expelled during stone blasting/detonating operation and fell down over the thatch roof shed thereby intensified into flame which had eaten away the pant and machineries installation shed.



The above survey report clearly shows that the surveyor noted the machineries and also its serial numbers and confirmed the accident. And in conclusion the Surveyor analyzed that the fire might have been probably resulted from spark expelled during stone blasting/ detonating operation and fell down over the thatch roof shed thereby intensified into flame which had eaten away the plant and machineries installation shed. And in the very same survey report he has noted that he had sought certain documents to verify and confirm the authenticity and genuiness of the claim but the complainant failed. And further noted that Complainant not bothered to arrange inspection of the machineries by competent technician so as to enable him to recognize the extent of damage caused to the plant and machineries due to fire perils. Surveyor couldn’t arrive into a reasonable conclusion regarding the extent of actual damages and consequential losses. We are very surprised to note the above contents because the surveyor being a expert should hold all qualification to conduct the assessment of the damage/loss. Just because Complainant not arranged the technician it cannot be blamed to the Complainant. It is the bounded duty of the surveyor to hold inspection by engaging a technician if necessary. Surveyor failed to assess the loss in this case shows his incapacity.

Further it is the definite case of the Opposite Party that the Complainant not produced the documents sought by the Surveyor. But the Complainant contended that he had submitted all the required documents to assess the claim. The enclosures noted down by the Surveyor in his report reveals that the surveyor was in possession of prescribed claim form filled and furnished by the insured, replacement quotation furnished by the insured, police mahazar report. Further it is significant to note that the insurance policy was obtained by the KSFC Limited i.e., the financier of the Complainant by submitting the proposal. When that being the case, the documents required by the Surveyor should have been obtained from the K.S.F.C. instead of delaying the settlement of the claim. It is a known fact that all the Insurance Companies considering the policy only after taking all the necessary documents or otherwise no company will come forward to issue a policy. Even in this case the company is not exception to the above. While issuing the policy the Opposite Party Company definitely received the particulars of the plant and machineries and other accessories. It is needless to say that the Insurance Company developed a tendency of asking for one or the other documents just to delay and deny the claim. The claim of the insured cannot be denied in this case just because the Complainant not produced the documents which already in the possession of the Opposite Party Company while issuing the insurance policy. It is mandate for the company to settle the claim reasonably, rejection of claim on technical ground for non-production of particulars unjustified. In the given case, the documents insisted by the surveyor in his letters dated 29.3.2000 and 25.4.2000 ought to have been complied by the Company not by the Complainant. The documents produced by the Complainant before this Hon'ble Forum clearly reveals that on 23.3.2000 at about 10.30 a.m. the above stated machinery accidentally caught fire and the entire machinery along with accessories were burnt. That the statement issued by the Tahasildar dated 10.5.2000 also support the case of the Complainant. The Surveyor and the Opposite Party Company inspite of holding necessary documents not settled the claim till this date amounts to deficiency in service.



In view of the above reasons, we hereby direct the Opposite Party i.e., Oriental Insurance Co. Ltd., represented by its Branch Manager to pay Rs.2,50,000/- (less salvage if any) to the Complainant i.e., a total loss suffered by the Complainant along with interest at 9% p.a. from the date of accident till the date of payment. However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation. Further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.



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

The complaint is allowed. Opposite Party i.e., Oriental Insurance Co. Ltd., represented by its Branch Manager is hereby directed to pay Rs.2,50,000/- (Rupees two lakh fifty thousand only) (less salvage if any) to the Complainant along with interest at 9% p.a. from the date of accident till the date of payment. Further Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.



Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.



(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 30th day of November 2009.)




PRESIDENT

(SMT. ASHA SHETTY)




MEMBER MEMBER
(SMT.SULOCHANA V.RAO) (SRI. K.RAMACHANDRA)
APPENDIX


Witnesses examined on behalf of the Complainant:

CW1 – Mr.Abdul Razak – Complainant.



Documents marked on behalf of the Complainant:



Ex C1 – : Xerox copy of the claim form.

Ex C2 – 01.06.1993: Xerox copy of the proforma invoice for Rs.1,61,266/-.

Ex C3 – 26.05.1993: Xerox copy of the quotation for Rs.17,836/-.

Ex C4 – 26.03.1993: Xerox copy of the quotation for Rs.40,000/-.

Ex C5 - : Xerox copy of the detailed estimate.

Ex C6 - : Xerox copy of the insurance policy.

Ex C7 – 24.03.2000: Xerox copy of the spot mahazar.

Ex C8 – 09.03.2009: Copy of the legal notice.

Ex C9 - : Postal receipt.

Ex C10 – 10.05.2000: Endorsement by Thahsildar, Mangalore Taluk.



Witnesses examined on behalf of the Opposite Party:



RW1 – Sri.Sudhakar, Divisional Manager of the Opposite Party.

RW2 – Sri. M.K.Vazhunnavar – Surveyor/Loss Assessor – witness of the Opposite Party.



Documents marked on behalf of the Opposite Party:



Ex R1 – : Insurance Policy issued by the Opposite Party.

Ex R2 - : Proposal form.

Ex R3 – 28.08.2000: Copy of the Surveyor’s report.

Ex R4 – 29.03.2000: Letter issued by the Surveyor to the Complainant.

Ex R5 – 25.04.2000: Letter issued by the Surveyor to the Complainant.

Ex R6 - : Postal acknowledgement.


Ex R7 - : Reply to the legal notice.

Ex R8 – : Faculty of Engineering Certificate issued by University of Kerala to M.K. Vazhunnavar.

Ex R9 - : Licence issued to M.K.Vazhunnavar by Insurance Regulator and Development Authority.

Ex R10 - a) Acknowledgement issued by SHO, Moodabidre P.S. i.e., No.189/NCR/ 2000.

b) Surveyor report.

c) Copy of 2 photographs retained by the Opposite Party.

d) Statement issued by Tahasildar dated 10.05.2000.

e) Copy of Insurance Policy No.1038/2000.

DATED THIS THE 19th DAY OF NOVEMBER 2009.

Date of filing :10-08-2009

Date of receipt of notice by Opposite Party/ies 1.22-08-09.

2.18-08-09.

PRESENT :SRI.M.S.HEGDE NAGRE, PRESIDENT.,M.A.,LL.B.,(Spl).

SRI.K.S.PRASAD, B.Com.,LL.B., MEMBER.

SMT.A.S.HEMALATHA, M.Com.,LL.B., MEMBER.

C.C.61/2009



COMPLAINANT:

Smt.Kamala Vasu

39 years, S/O Sri vasu

C/O Sri Peter Ramapuram

Sampigecolly Estate

Post Box Number 28

Siddapur-571 253,

Virajpet taluk

Kodagu District.

(By Sri.G.R.Ravishankar, Advocate)



V/S
OPPOSITE PARTY/IES.

1. The Oriental Insurance

Company Limited,

Corporate and Registered office

Oriental House, Post Box

Number 7037 A-25/27

Asaf Ali Road

New Delhi – 110 002.



2. The Branch Manager

The Oriental Insurance

Company Limited,

Badsha Complex,

Virajpet-571 218.

(By Sri.M.C.Machaiah, Advocate)


O R D E R



ORDER DELIVERED BY SRI.M.S. HEGDE NAGRE, PRESIDENT.



1. The instant complaint filed by the complainant by invoking Section 12 of the Consumer Protection Act 1986 (Herein after referred to in short as the ‘Act’).



The averments of the Complaint in brief are that, the Complainant is a Consumer of the Opposite Parties as she was one among others, holding the Universal Health Insurance Policy No:422804/47/2009/31 (here in after referred to as Policy) which was inforce from 12.07.2008 to till 11.07.2009, issued by the Opposite Parties and that the Complainant was admitted in Mercara Nursing Home, Madikeri and has undergone operation of appendix during the subsistence of the said policy and that she incurred expenses for the said medical treatment to the tune of Rs.12540/- and that on filing the claim of the said amount under prescribed form, Opposite Parties have repudiated the same under letter dtd:23.07.2009 responding to legal notice of the Complainant dtd:17.07.2009 and that the Complainant since suffered mental agony and hardship due to the deficiency in service on the part of the Opposite Parties she was constrained to file this Complaint requesting to direct the Opposite Parties to pay the reimbursement of the said medical claim of Rs.12540/- as well as to pay a sum of Rs.10,000/- towards compensation and a sum Rs.5000/- towards costs of this proceedings. Hence this complaint.


2. The Opposite Parties were duly served with version notice issued by the Forum in the instant case. Responding to the same, they appeared through their advocate and filed objection contending interalia that the Opposite Parties though admit the subsistence of the mediclaim policy of the Complainant from 12.07.2008 to 11.07.2009, both the parties are bound by the terms and conditions of the policy and that the claim of the Complainant was not satisfied as the same is attracted by the exclusion Clause 4 and 4.2 read with clause 4.3 of the policy as the Complainant had developed pain of appendicitis one week before the date of admission in the hospital and hence, the repudiation of claim of the Complainant by the Opposite Parties is justifiable and proper and as such there was no deficiency in service and hence, ultimately it was requested to dismiss the Complaint with costs.


3. The Complainant on the one hand and one P.N.Shettigar, Divisional Manager, of Opposite Parties on the other, have filed their affidavit in consonance with their respective stand. Heard, the arguments of both the sides and then posted the case for orders.


4. Basing on the above materials, following issues will arise for determination:



1) Whether there was deficiency in service on the part of the Opposite Parties in repudiating the mediclaim of the Complaint?.



2) What order?.



REASONS

5. Both the parties have practically no dispute with regard to certain aspects in the case on hand i.e., the Complainant among others was the holder of mediclaim policy of the Opposite Parties which was inforce from 12.07.2008 to 11.07.2009 (A copy of the Policy produced). Further, that the Complainant has admitted to Mercara Nursing Home, Madikeri. On 11.07.2008 for medical treatment due to stomach pain and that she has undergone operation of the appendix on 12.07.2008 and was discharged from the said Nursing Home on 17.08.2008. Further, it is an admitted fact that, the Complainant has incurred medical expenses of Rs.12540/- under bills which was less than the minimum claim under the policy. It is also admitted fact that the Complainant has filed her mediclaim with Opposite Parties under prescribed form as well as necessary bills etc., claiming reimbursement. Therefore, the crux of the matter for discussion was the repudiating the mediclaim of the Complainant by the Opposite Parties as the stand taken by them was that the Complainant had pain one week before her admission in Nursing Home as per the endorsement in the hospital records and as such the claim of the Complainant was contravening the terms and conditions at clause No:4, 4.2 read with 4.3 of the said policy. Undoubtedly, the policy was inforce from 12.07.2008 to midnight on 11.07.2009 Clause 4.2 of the terms and conditions of the policy of the Complainant reads as under:



“Any disease other than those stated in clause 4.3, contracted by the insured persons during the first 30 days from commencement date of the policy except treatment for accidental and external injuries…..”



So, it becomes bounden duty of the Complainant to establish that first 30 days from the commencement date of the policy was over when she approached the Doctor for medical treatment regarding appendicitis. The month of July, is having 31 days and thereby after obtaining the instant policy on 12.07.2008 already 20 days elapsed as on 31.07.2008. Likewise the first 30 days from the commencement date of the policy completes on 10.08.2008. Therefore, the Complainant who approached Doctor in the Nursing Home, regarding her stomach pain on 11.08.2008 will not contravene any of the terms and conditions of the policy to file her mediclaim as rightly submitted by the learned advocate for Complainant. Ofcourse, there was an endorsement in claim form filed by the Complainant under sub clause (c) of Clause 3 that one week pain seen. However, the Complainant was neither admitted for treatment of appendicitis illness nor operated during the said period in any hospital. Apart from that, there is no mediclaim of the Complainant for the said medical treatment till 11.08.2008. Therefore, simply because the Complainant had stomach pain one week prior to approaching Doctor does not take away her right to mediclaim in the instant case. Therefore, the repudiation of the mediclaim of the Complainant by setting forth the Clause 4, 4.2 read with Clause 4.3 of the policy by the Opposite Parties cannot be considered as well founded. It is also pertinent to note that there was relaxation of certain time limit to consider to be in patient regarding the Surgery of Appendix as per Sub Clause (XX) of Clause 2.3 (A) of the terms and conditions of the policy which indicates that the Surgery of Appendix would be accidental rather than long or past history. With all these we hold that there was deficiency in service on the part of the Opposite Parties in repudiating the Complainant. Hence, we answer issue No:1 in the affirmative.



6. The Complainant has already filed her mediclaim with the Opposite Parties for reimbursement in the prescribed form with all necessary bills/receipts by making available the copies of the same along with her Complaint. Therefore, the Opposite Parties since become liable to pay the said mediclaim to the Complainant as per the terms and conditions of the policy we direct the Opposite Parties to pay the same by way of reimbursement. Besides the same, on account of repudiation of the mediclaim of the Complainant during her post operation period by the Opposite Parties, certainly the Complainant would have suffered with much mental agony and hardship. In this connection, the Complainant though claimed Rs.10,000/- towards compensation considering the nature of illness duration as in patient period of the Complainant we are of the considered view that if a sum of Rs.5,000/- is awarded to the Complainant as compensation, it would meet the ends of justice. Apart from that, the act of Opposite Parties in repudiating the mediclaim of the Complainant has compelled her to approach the Forum to fight for justice as provided under law, the Opposite Parties shall become liable to pay the cost of Rs.1,000/- to the Complainant. Moreover, the payable amount under the order shall carry future interest at the rate of 10% p.a. till realization. Hence, we proceed to pass the following.


ORDER
The Complait filed by the Complainant is allowed in part with cost of Rs.1,000/-. The Opposite Parties 1 & 2 jointly and severally shall pay a sum of Rs.12540/- towards mediclaim of the Complainant and a sum of Rs.5,000/- towards compensation to the Complainant.
The payable amount under this order shall carry future interest at the rate of 10% p.a. from the date of Complaint till realization.
The Opposite Parties shall comply the order within a period of 60 days from the date of the communication of this order.
Communicate the order to the parties.
(Dictated to the stenographer and got it transcribed and corrected and pronounced in the open Forum on this 19th day of November 2009).

Complaint No. 139/2008


Ajaysinh Pravinsinh Jadeja

Resi. at 6, Damji Mepa Plot

"Momai Krupa", Near Pipalia Hall

Rajkot. ..... Complainant


-Versus -

The Divisional Manager

The Oriental Insurance Co. Ltd.

"Dhiraj", Dhebarbhai Road

Opp. Nagrik Sahkari Bank Head Office

Rajkot. ...... Opponent

Shri V.D. Mehta - Advocate for the complainant

Shri J.J. Trivedi - Advocate for opponent

Corum : Shri H. D. Chaglani, President

Shri B.J. Dave, Member

- JUDGMENT -
1. By filing present complaint under section-12 of the Consumer Protection Act, 1986, the complainant has claimed Rs.3,00,000/- under insurance policy with running interest @ 18% p.a. Further, claimed Rs.15,000/- compensation on the ground of mental agony, harassment and Rs.2,000/- towards cost against the opponent.

2. The facts giving rise to this complaint in short may be stated as follow :

That the complainant is the owner of Toyot Quelis bearing No. GJ-3-DD/9274 and had purchased the "Package Policy" from opponent for the period from 10-11-2005 to 09-11-2006 for his car for the value of Rs.3,00,000/-. It is his further case that on 14-06-2006, complainant had gone to Chotila by his above referred vehicle and from there he started towards Doliya. It was about 9-30 time. At that time a passenger sited in his car had beaten the driver of the car and looted cash amount of the driver by showing knife and thereafter, pushed the driver from running car and had gone away with above referred Toyota Quelis care valued Rs.5,13,000/-. The complainant has also filed police complaint in Muli Police Station vide Crime Register No. 97/06. After investigation, the police has submitted final summery as the car which was looted, not traced during the investigation. Thereby, complainant sustained loss for the value of RS.5,13,000/-, the cost of vehicle. In turn, complainant submitted his claim with necessary papers, but without affording opportunity of being heard, unilaterally, opponent insurance company has repudiated the claim of complainant vide its letter dated 20-03-2007 on illegal and arbitrary ground that the vehicle was used in violation of terms and conditions of the policy as taxi. It is the case of complainant that he was never supplied with terms and conditions of the policy, so it was not binding, still the claim of the complainant was not settled by opponent and thereby committed deficiency in service. Therefore, the present complaint for the relief stated at out set.



3. Opponent has been served with notice, in response; opponent has filed written statement at Exh-13 and opposed the complaint. The contentions of opponent are stated in detail at its written statement Exh-13. Inter-alia, main contention of opponent may be stated as follow :





It is admitted by this opponent that complainant has purchased insurance policy for his vehicle "Toyota Quellis" bearing No. GJ-3-DD/9274. But in the contention of opponent, this is a private car. The policy issued for the vehicle was for the private car. It was not open for the complainant to use the car for hiring and reward. But it was used for the purpose of hiring and reward by complainant. Thereby he has violated the terms and conditions of the policy, so claim was not payable, and it was rightly rejected by opponent and there was no deficiency in service on part of the opponent. So complaint deserves to be dismissed. It is further denied by this opponent that complainant was not supplied with terms and conditions of the policy. As per terms and conditions of the policy, complainant is only entitled to premium amount and he is not entitled to insurance amount. Therefore, complaint deserves to be dismissed.



4. In support of his case, complainant has produced documentary evidence at Mark-4/1 to Mark-4/7 and Proof affidavit at Exh-15. Except this, complainant has adduced no other evidence.



5. The opponent has produced documentary evidence at Mark 14/1 to Mark-14/5 and proof affidavit at Exh-23 and affidavit of investigator at Exh-25. Except this opponent has adduced no other evidence.





6. The complainant has submitted written arguments at Exh-28.





7. Opponent No. 1 has submitted written arguments at Exh-29.





8. From the facts of pleadings, evidence on record and in view of the arguments of the parties, following points arose for our determination :





1) Whether complainant proves that opponent has committed deficiency in service by illegal arbitrary repudiation of complainant's claim?



2) To what relief complainant is entitled for?



3) What order?





9. Our findings on the above stated points are as follow for the reasons stated below :





1) In partly affirmative.

2) 75% of insurance amount on non-standard basis.

3) As per final order.



10. Reasons :





Issue No. 1 :



On this point, it is the case of complainant that he is the owner of Toyota Quallis car bearing No. GJ-3-DD-9274. He purchased "Package Policy" for the value of Rs.3,00,000/- for his above referred vehicle for the period from 10-11-2005 to 09-11-2005 by paying premium of Rs.12,798/-. It is further case of the complainant that on 14-06-2006, a passenger sited in his car has beaten the driver of the car and fastened him by hands and legs, looted cash amount from him and thereafter, pushed the driver from running the car and gone away with the said car valuing Rs.5,13,000/-. In turn, complainant submitted his claim with necessary papers, but it was repudiated by the opponent vide its letter dated 20-03-2007 stating that policy was issued for private car, but by violation of terms and conditions of the policy, it was used by the complainant for hiring and reward. Therefore, the claim is not payable. In the say of the complainant, the reason assigned for repudiation by opponent is wrong and false. Thereby, they have committed deficiency in service.



As against this, the defence of the opponent is only that as per terms and conditions of the policy, the policy was issued for private car, which excludes "Any loss due to hire or reward", and complainant has used the same for hiring purpose. So the claim is not payable as per terms and conditions. It is not denied by this opponent that policy for the vehicle was issued covering the risk of Rs.3,00,000/- and further that the vehicle was looted during the currency of insurance policy.



In view of rival contentions of the parties, only the question in dispute is whether the vehicle in question was used for hire or reward and was it the loss due to hire or reward which excluded as per terms and conditions of the policy?



In view of above referred controversy between the parties, if we turn to evidence on record, the insurance policy with terms and conditions is produced at Mark-14/1, as well as Mark-4/1, the F.I.R. regarding alleged looting of car is produced at Mark-4/2, clearly reveals that car was used for hire purpose and on the day of incident, the alleged accused had hired the vehicle of the complainant and thereafter pushed the driver out from running vehicle and forcefully taken away the car. So it is clear from the document Mark-4/1 which is produced by the complainant that it was used for hire purpose, and it was excluded as per terms and conditions of the policy. But it is the argument of Mr. V.D. Mehta, Ld. Advocate for the complainant that breach of terms and conditions is not germane in cause of theft or looting. As per document Mark-4/4, the final summery filed by the concerned police station, the disputed vehicle was not traced. There is no rebuttal evidence from other side to say that the vehicle was traced. Further, it is argued by Mr. Mehta Ld. Advocate for the complainant that Mark-4/2, Mark-4/3 and Mark-4/4 are the policy papers supporting the case of the complainant that vehicle was forcefully taken away by miscreants committed offence of robbery. Therefore, as per settled position of law that breach of terms and conditions is not applicable in case of theft or robbery. He relied on the decision of Hon'ble Supreme Court in the case of National Insurance Co. Ltd., Vs. Nitin Khandelwal reported in 2008 ACJ 2035 SC. In that case it was held by the Hon'ble Supreme Court that -



"Motor Insurance - Theft of Vehicle -Comprehensive Policy - Repudiation of claim - Some unknown persons stopped the vehicle, tied the driver and took the vehicle which could not be recovered - Insurance company repudiated the claim on the ground that vehicle was insured for personal use but it was being used as taxi for carrying passengers - Owner filed complaint in the District Forum under Consumer Protection Act which held that insurance company was justified in rejecting the claim as the owner had violated terms and conditions of policy - State Commission observed that theft of vehicle has not been denied by insurance company and directed it to settle the claim on non-standard basis by paying per cent of the amount - National Commission confirmed the order - Whether the insurance company is liable to indemnify the insured for his loss when he has taken comprehensive policy - Held : Yes; breach of terms of policy is not germane in case of theft of vehicle".



The similar view has been taken by Hon'ble National Commission, in case of Oriental Insurance Co. Ltd. Vs. Sanjeev Kumar reported in II (2009) CPJ 135 (NC), in above referred case law, it was held that the insurance company was liable to settle the claim on non-standard basis by paying 75% of the insurance amount. Inspite of above settled position of the law, opponent has repudiated the claim of complainant and thereby committed deficiency in service. Therefore, we hold this point in partly affirmative as at least, it was for opponent to settle the claim on non-standard basis, but the claim was totally repudiated.



Issue No. 2 :



Complainant has claimed Rs.3,00,000/- with running interest @ 18% p.a. and further Rs.15,000/- on the ground of mental agony and Rs.2,000/- towards cost of the complaint. In view of affirmative answer to point No. 1, it is clear that complainant had also committed breach of terms and conditions of the policy by using the vehicle for hire purpose, which was not permissible as per terms and conditions. So opponent was not totally wrong in repudiating the claim of the complainant. But according to settled position of law, in case of theft or robbery, a breach of conditions of the policy is not germane and in those cases, inspite of breach of terms and conditions, insurance company is under obligation to settle the claim on non-standard basis by paying 75% of the amount. In our case as per policy the value of vehicle is shown Rs.3,00,000/- and the risk covered under the policy is also for Rs.3,00,000/-. So complainant is entitled on non-standard basis only, 75% of the amount which comes to RS.2,25,000/- only and in view of this, looking to the circumstances of the case, complainant is not justified in claiming interest as well amount for the compensation on the ground of mental agony and cost. Therefore, we hold this point in partly affirmative only for 75% of the insurance amount as discussed earlier. In the result following is the order :



: ORDER :



Complaint is partly allowed.



Opponent do pay Rs.2,25,000/- (75% amount on non-standard basis) to the complainant within 1 month period from the date of this order. Failing which it will carry 8% interest p.a.



Looking to overall circumstances, parties are left to incur their own costs.



Pronounced in the open forum on this 7th day of November, 2009.

Consumer Case No.-74 /2009

Sri Biraj Kumar S/o Sri Vijay Kumar Singh

R/o Pandey Medico, Kunwar Singh Colony, Gandhipath Chas, Dist.- Bokaro.

(Jharkhand)

Vs.

1. Senior Divisional Manager,

The Oriental Insurance Co. Ltd, Divisional Office, Bokaro at City Centre, Sector-IV, Bokaro Steel City, Dist.- Bokaro.

2. Senior Divisional Manager, The Oriental Insurance Co Ltd. Divisional Office, Hindustan Building, Bistupur, Main Road, Jamshedpur-831001 (Jharkhand)

Present-

S.M. Alam, President

Sri Vijay Bahadur Singh, Member

Shabnam Praveen, Member

Date of Judgment-23/12/2009

Date of Case filing-13/10/2009

-: Judgment:-

The complainant has filed the present case against the opposite parties for payment of Rs. 173605 towards cost of repairing, purchase of spare parts and replacement of essential items of the Bus with 18% interest, besides Rs. 20000/- as compensation for physical and mental agony and Rs. 5000/- as cost of present proceeding.

2 Brief fact of the case is that the complainant is a owner of Bus bearing registration No. JH-09-G 1495 Engine No. 60D62472896, Chassis No. 412073DT2116059 and model No. 2006 and the said vehicle was purchased under HPA with TATA Motor Ltd., Mumbai. The complainant obtained comprehensive insurance policy vides no. 333000/31/2009/701 and after completion of formalities, the opposite party NO.2 issued the said insurance policy which was valid from 08.05.2008 to 07.05.2009. It covered O/D claim at Rs. 75000/- and P/A claim for owner and driver RS. 200000 /-.The complainants also obtained other papers of the vehicle as, such R.C. Book, Tax Tocken, Fitness Certificate, Road Permit and started to ply the said Bus from TATA to Bhagalpur Via Ranchi, Rangarh, Hazaribag, Dumka, Deoghar and Bokaro. On11.07.2008 the complainant was himself driving the said Bus from Bhagalpur to TATA having valid driving License vide No. 5562/87 Patna and also got renewal at Bokaro vide No. 601/99 corresponding from 7 number 12:3:42/08 dated 10.11.2008 valid up to 27.02.2011. At the same date at about 1: 30 A.M. night the complainant lost balance of the Bus in saving the life of Cow, the Bus dashed with tree near Sanjay Gandhi Chock Maithan, and on account of the said accident front of the Bus badly damaged, however no casualty was taken place. On written complaint Maithan Police registered a Sanha No. 382/08 dated 16.07.2008 in regard to the said accident. The complainant given written information to the opposite party No.1 regarding the said accident and for issuance claim form and made request for support survey. After completion of lawful formalities, the Bus was brought in the Ranadoby Builder, Jodhadih More, Chas for its repairing and replacement of part and thereafter, the complainant file dully filled up claim form along with related papers in support of his claim. The complainant paid Rs. 150000/- to Ranabody Builder for repair and replacement of spare parts of the said bus. He also spent Rs. 23605/- in purchasing spare parts which were not available in Ranabody Builder, Chas. The complainant was went to get insurance claim but surprisingly he received repudiation letter dated 28.08.2009 issued by the opposite party no.2 on the ground that the driving license of the complainant was not valid, and not issued from D.T.O. Patna and found fake. The complainant was fade up due to reason of repudiation of insurance claim, as he was having valid and bonafied driving license. The complainant obtained the part of the said D.L. No. 5562/87 from DTO Patna vide No. 6301 dated 23.09.2009. The D.T.O. Patna issued certification with D.L. No.5562/87 issued from his office and the same is genuine.

3 In the light of facts and circumstances, it clearly appears that repudiation of insurance claim by the opposite party No.2 is illegal and unjustified, which constituted deficiency in service on the part of the opposite parties, and on account of deficiency in service of opposite parties, the complainant have suffering many faults in terms of physical and mental agony and also economic loss and damage and hence he is entitled to get claim and compensation from the opposite parties.

4 Upon issuance of notices, the opposite parties appeared and filed their written statement, stating there in that the present Consumer Complaint is not maintainable. The complainant has no valid cause of action. The insurance is never for commercial purpose; rather it is for the purpose of indemnity. It is further stated that the complainant pertaining to repute the claim which is not maintainable under contract of insurance, since driver’s clause inserted under the policy stands utterly violated and accordingly the claim has been repudiated without any prejudice. The complainant was having fake license at the time of accident and thereafter, the reason of repudiation of insurance claim of the complainant is fake license which has been supported on verification from DTO Patna. Thus it is clear that reason of repudiation of claim has been found fake driving License during verification at DTO Patna from where original D.L. No. 5562/87 was issued, as such the driver’s clause inserted in policy n question stands violated at the end of policy holder. The complainant cannot be permitted to gain unlawful gain.

4 Thus from the above facts and circumstances, it is quite clear that there is no deficiency in providing service on the part of the opposite parties, and accordingly the complainant is not entitled to get any relief sought against the opposite parties and present consumer complaint is fit to be dismissed.

5 Both the parties have been heard. We have gone through the entire case records and the documents filed on behalf the parties. Available in the case records is a copy of the memo No. 6301 dated 23.09.2009 issued from the office of the District Transport Officer, Patna. The same has been filed as annexure 10 by the complainant. On perusal of the said memo it is observed that the Driving Licence No. 5562/87 Patna was converted from Private to Professional. Later on the said Licence was renewed twice by the DTO, Bokaro vide No. 17130/07 valid up to 27.10.2008 and vide no. 12342/08 valid up to 27.10.2011. It is concluded that the Driving Licence No. 5562/87 Patna issued in the name of the complainant-Driver is not fake as contended by the opposite parties while repudiating the complainant’s claim on the ground of fake Driving Licence No. 5562/87/ Patna. In view of above the said repudiation is not justified. We, therefore, hold the opposite parties negligent and deficient in service towards the complainant.

6 As far as the quantum of the repair charges of the damaged vehicle No. Jh09G 1495 in question is concerned, it is found that the complainant has filed the relevant bills pertaining to the same as detailed bellow as per annexure 8, 8A, 8B, 8C and 8D- of the complainant.

Serial No. Bill No.& date Agency Name Amount

i Nil dated 15.9.08 R.B.Builders Rs.150000.00 Jodhdih More, Chas

ii Nil dated12.9.08 RameshAutomobile Rs.3630.00

Jodhdih More, Chas

Iii 0263/2008-09 Nirsha Break down Rs.4000.00

20.07.2008 Service, GT Road, Nirsha

Iv Nil, 10.9.2008 Toshiba Motor, Rs.8200.00

Jodhadih More, Chas

V Nil, 12.09.08 Sanjeev Hardware Rs.7775.00

Jodhadih More, Chas

7 As far as bill no. nil dated 15.09.2008 of M/s Rana Body Builder, Jodhdih More, Chas for Rs. 150000/- is concerned, it is observed that the bill does not contain any break up of materials and labour input in repair of the damage of the vehicle in question. In view of the same this bill cannot be justified. As such the same as per complainant’s annexure 8 is not allowed. The rest bills as detailed above from serial no. ii to V are only allowed, totaling to Rs. 23605/-.

8 In view of the above, the opposite parties held liable to pay Rs. 23605/- to the complainant, besides other reliefs.

9 Under the facts and circumstances of the case, the opposite parties are directed to pay Rs. 23605/- (Rs. Twenty thee thousand six hundred five) only to the complainant within 30 days from the date of this order. The above opposite parties are also directed to pay Rs. 1000/- (Rs. One thousand) only as compensation to the complainant within 30 days from the date of this order.

consumer case(CC) No. CC/08/169

Alok Krmar Ghosh
...........Appellant(s)

Vs.

Orinetal Insurance Co. Ltd. and 4 others
...........Respondent(s)


BEFORE:


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




ORDER

In the Court of the

Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.



CDF/Unit-I/Case No. 169 / 2008



1) Sri Alok Kumar Ghosh,

S/o. Late Subodh Kumar Ghosh, 42/82, New Ba!lygunge Road,

Kolkata-39, P.S. Kasba. ---------- Complainant

---Verses---

1) Oriental Insurance Company,

The Divisional Manager, Div-VI, Kolkata, Everest House,

2F, 46C, Chowringee Road, Kol-71, P.S. Shakespeare Sarani.



2) Oriental Insurance Company,

The Senior Divisional Manager, Div-III, Kolkata,

Thapar House, 25, Biplabi Trailokya Maharaj Sarani,

Kolkata--700 001, P.S. Hare Street.



3) Oriental Insurance Company,

Regional Manager, Div-VI, Kolkata,

4, Lyons Range, Kolkata-700 001, P.S. Hare Street.



4) The Finance Officer, Jadavpur University,

186, Raja S.C. Muilick Road, Jadavpur,

Kolkata-700 032, P.S. Jadavpur.



5) Paramount Health Services Ltd.,

ICMARD Building, 8th Floor,

14/2, C.I.T. Road, Scheme-VIII M, Ultadanga, Kolkata-67 ---------- Opposite Party



Present : Sri S. K. Majumdar, President.

Sri T.K. Bhattachatya, Member.



Order No. 1 4 Dated 2 9 / 1 2 / 2 0 0 9 .



The present case filed by the complainant Alok Kr. Ghosh on 27.5.08 against the o.p. oriental Insurance Co. and two others praying for issuing direction upon the o.p. no.1 Oriental Insurance Co. to pay a sum of Rs.166544/- and compensation of Rs.1 lakh and litigation cost of Rs.1 lakh.

Fact of the case in short is that the complainant for himself and his son andsife obtained Group Mediclaim Policy being policy no.PHS-01 KOL 6681216 JUY, 01 KOL 6681 217 JUY, 01 KOL 6681 218 JUY respectively through the o.p. no.4, the Finance Officer Jadavpur University from 1.3.1999 renewable every year. O.p. no.2 accepted his proposal and the complainant disclosed all material facts that the complainant was carrying a pace maker as per advice of the doctor which was implanted on 4.1.1992. The policy was renewed and o.p. no.2 assured insurance coverage to the extent of Rs.2 lakhs for the complainant, Rs.2 lakhs for his wife and Rs.1 lakh for his son and it was a cashless policy for all the times.

According to the advice of the doctor he had to undergo replacement of pace maker during the period from 2.7.07 to 5.7.07 at Woodland Nursing Home and incurred expenses to the extent of Rs.183944.85 including the cost of pace maker. He is a beneficiary under CHNHB Association now merged with GIC wherefrom he realized the part amount of Rs.17400/-. But most arbitrarily o.p. no.2 did not reimburse the amount in favour of the nursing home in spite of repeated demands and the complainant accordingly had to pay in cash to the nursing home and the pace maker company. He submitted all his necessary documents to o.p. no.5 (TPA) through o.p. no.4 on 15.8.07. He informed all about the facts to the o.p. nos.4 and 5 but they repudiated his claim on the plea of pre existing disease. O.p. no.2 also most arbitrarily and illegally repudiated his claim which amounts to deficiency of service and finding no other alternative he has filed this case against the o.ps.

On 4.8.08 o.ps. by filing a written statement have contested this case, contending interalia that the case is not maintainable in its present form and law and they have thoroughly denied the allegations of deficiency of service on their part. They have admitted that the complainant is the insured and the o.p. Oriental Insurance Co. is the insurer of the complainant and submitted the claim for reimbursement of the medical expenses incurred by him for his medical treatment for the replacement of pace maker implanted in 1992 in his chest long before the inception of the insurance policy and they have repudiated his claim on the ground of pre existing disease and according to the mediclaim the insurance company can take into account provided “the renewals have been continuous and without any break” and accordingly, the claim of the complainant is not admissible and payable under the policy-conditions. They have alleged that it is the wrong interpretation that the insurance company accepted his premium knowingly the implantation of his pace maker. He also discontinued his policy for 2004-05 but re-entered from 1.3.05. The Oriental Insurance Co. has given him continuity benefit of the existing group mediclaim and his claim for hospitalization etc. and they have also alleged as the disease is pre existing, therefore repudiation is justifiable and as CHNHBA has already been given the requisite reimbursement against the claim any other claim showing the same policy is unjustified and accordingly it falls within the exclusion clause no.4.1 and accordingly, the claim of the complainant is liable to be dismissed.

Decision with reasons : -

It appears on perusal of the record that on 11.8.08 this forum passed an order directing the o.ps. to make payment a sum of Rs.166544/- and Rs.5000/- as compensation and litigation cost of Rs.1000/- and unpaid cost of Rs.8000/- vide order dt.4.8.08. An appeal was preferred against the impugned order passed by this forum wherein the Hon’ble State Commission has been pleased to set aside the impugned order of this forum and allowed the appeal with a direction to proceed and decide the case considering the evidence of both the parties because it appears that both the parties submitted their pleadings and BNA but did not adduce any evidence.

The complainant on 13.4.09 has filed his evidence on affidavit wherein he has stated about the facts which has been impleaded in his petition of complaint with regard to his mediclaim and payment of the same and implantation of pace maker and repudiation of his claim by the o.ps. on the ground of pre existing disease. The o.ps. have also filed their evidence on affidavit on 18.4.09 wherein the agreement entered between Jadavpur University for continuation of group mediclaim policy of the university with the o.ps. dt.17.2.05 and the terms and conditions of the policy w.e.f. 1.3.08 as modified on 22.1.08 and they have also taken into consideration of repudiation of mediclaim on the basis of the letter dt.8.4.08 of TPA Paramount Health Services Pvt. Ltd. and reply of Jadavpur University.

In view of adducing evidence by both the parties the conditions of observations laid down by the Hon’ble State Commission in their order has been complied with. Either of the parties did not file any questionnaire and accordingly, the question of giving reply against the questionnaire does not arise at all. We have perused he documents filed by both the parties viz. the policy, exhibit-1 and realization part amount ofRs.17400/- by the complainant from CHNHB exhibit-1 and the letter of repudiation on the plea of pre existing disease, exhibit-3 etc. O.p. no.4 has only filed w/v.

Admittedly, the petitioner is a policy holder of the mediclaim as referred to herein above and further admitted position is that he replaced the pace maker on the advice of the doctor. Only claim of the o.ps. is that as the disease is pre existing they repudiated the claim. It is now a settled principle of law as the mended given by the Apex Court of India that the plea of pre existing disease is no ground for repudiation of mediclaim.

Implantation of pace maker to the complainant as he was suffering from heart disease is known to the o.ps. It is not understood that why the o.ps. did not inform the complainant that claim for change of pace maker is neither permissible nor acceptable to the o.p. Petitioner’s claim is that as the pace maker was required to be changed as it was not functioning properly and on that point his claim is not unjustified. We have also perused the memorandum of understanding (MOU). Apex Court of India has decided that Public Sector Insurance Co. cannot refuse to provide mediclaim cover policies on the ground of pre existing disease and if it is so denied it amounts to illegal and unconstitutional activity. In view of this position, we find merit in the case of the complainant and as such, complainant is entitled to get relief as ordered hereunder.

Hence,

Ordered,

That the o.ps. are directed to make payment of Rs.1,66,544/- (Rupees one lakh sixty six thousand five hundred forty four) only to the complainant as cost incurred by the policy holder for implantation of the pace maker. The o.ps. are also directed to pay Rs.15,000/- (Rupees fifteen thousand) only as compensation and cost of Rs.5000/- (Rupees five thousand) only. The o.ps. are also directed to pay unpaid cost of Rs.8000/- (Rupees eight thousand) only in terms of the previous order dt.4.8.08 passed by this forum. So, the grand total of Rs.1,94,544/- (Rupees one lakh ninety four thousand five hundred forty four) only must have to be paid by the o.ps. positively within thirty days from the date of communication of this order, failing which it will carry interest @ 10% p.a. till full realization. Fees paid are correct.

Supply certified copy of this order to the parties on payment of prescribed fees.

Case No.853/08

Sastish Kumar Goel, 20/3, Onkar Nagar, Tri Nagar, Delhi – 35.

……Complainant

Versus

The Oriental Insurance Co. Ltd., 304-305, Balram House, Third floor, Karampura Commercial Complex, Delhi – 15.

……..Opposite Parties


CORAM : J.P. SHARMA : PRESIDENT

: S.M. MAZUMDAR : MEMBER

: DR. PREMLATA : MEMBER

O R D E R

J.P. SHARMA (PRESIDENT) :

Brief facts of this case are that complainant took insurance policy for the period 05.03.2008 to 04.03.2009 for his Maruti Zen car bearing Regn. No.DL 6C H 5993. On 03.06.2008, the car was involved in an accident at Kawali More, Distt. Sonepat, Haryana regarding which FIR No.118 was regd. at P.S. Sadar Sonepat. The vehicle was then brought for repair at Delhi at M/s.Shalimar Automobiles (P) Ltd. and there the repair company prepared the job estimate. In the meanwhile, OP’s surveyor inspected the vehicle for the purposes of claim and complainant also duly filled in the motor claim form and submitted the same with OP insurance company. Complainant’s grievance is that though M/s.Shalimar Automobiles (P) Ltd. raised an invoice for Rs.64,397/- and another invoice for Rs.5,603/- towards the repair of the said vehicle, OP insurance company repudiated his claim for the reason that CNG Kit was fitted in the said vehicle. OP in their written statement pleaded that on receipt of information about the accident, they appointed their surveyor who assessed the loss to the tune of Rs.31,837.66p only. OP admitted that they had repudiated the complainant’s claim for the reason that CNG Kit was found fitted in the car but not endorsed in the Regn. Certificate of the car.

Parties filed affidavits in support of their rival contentions.

We have heard Sh.Asit Tiwari- Ld. Counsel for complainant, Sh.Kapil Chawla – Ld. Counsel for OP, have gone through the material on record and have considered their relevant contentions.
A copy of the repudiation letter is available on record. The same reads as under :-

“While doing the final survey, our Surveyor has noted that CNG Kit is fitted in your above mentioned vehicle but the same is not endorsed in the Registration Certificate.

Please note that as per Section 52(1) of Motor Vehicles Act, 1988 – ‘Alteration in motor vehicle- No owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate of registration are at variance with those originally specified by the manufacturer.’

Provided that where the owner of a motor vehicle makes modification of the engine, or any part thereof, of a vehicle for facilitating its operation by different type of fuel or source of energy including battery, compressed natural gas, solar power, liquid petroleum gas or any other fuel or source of energy, by fitment of a conversion kit, such modification shall be carried out subject to such conditions as may be prescribed.

Since the alteration so made in your vehicle has not been endorsed in the RC by the concerned authority, we regret to inform you that your above claim is not tenable. Hence we are filing the papers as NO CLAIM, which please note.”



In terms of what has been pleaded in the written statement and what is contained in their letter of repudiation, Sh.Kapil Chawla appearing for OP insurance company claimed that claim of the complainant was not admissible on account of breach of policy terms and conditions by the complainant on account of having got the CNG Kit fitted in the car which fact was not endorsed in the Registration Certificate of the vehicle. We, however, do not find any merit in this submission of Sh.Kapil Chawla in the facts and circumstances of the present case. Ld. Counsel for complainant has drawn our attention to the copy of cover note issued at the time of receipt of premium for getting the vehicle insured. A copy of the original cover note clearly shows that a sum of Rs.1,400/- was charged by OP insurance company on account of the vehicle being fitted with CNG Kit. Then even in the copy of insurance policy to which schedule of premium is attached, it is shown that additional amount of Rs.1,400/- was charged by OP insurance company on account of the vehicle being fitted with CNG Kit. The genuineness of these documents could not be disputed by Sh.Kapil Chawla – Ld. Counsel appearing for OP insurance company. Since OP insurance company in this case have duly received the premium on account of the vehicle being fitted with CNG Kit, they cannot escape their liability to indemnify the claim of the complainant on the plea that the factum of fitting of CNG is not endorsed in the Regn. Certificate. We have no hesitation to hold that OP insurance company in the facts and circumstances of the present case where the premium has been accepted on account of fitting of CNG Kit is liable to indemnify the claim of the complainant as per surveyor’s report on record.



OP have placed on record a copy of surveyor’s report which clearly shows that the loss was assessed by the surveyor only to the extent of Rs.31,837.66p. Though Sh.Asit Tiwari, Ld. Counsel for complainant submitted that the report of the surveyor was not acceptable to the complainant but this submission of Sh.Asit Tiwari is of no consequence as no technical report has been filed on record by the complainant to show that the loss was not to the extent of Rs.31,837.66p only. It is evident from the surveyor’s report that the vehicle was year 2002 model and therefore, substantial amount has been deducted by the surveyor towards depreciation for the parts repaired/replaced and these deductions of surveyor in the facts and circumstances of the present case can in no way be said to be unjustified. We, therefore, conclude that OP insurance company in this case is liable to indemnify the claim of the complainant to the extent of Rs.31,837.66p.



As a result of what has been discussed above, we direct OP insurance company to pay to the complainant a sum of Rs.31,837.66p towards the loss suffered by the complainant on account of damage caused in the accident. OP shall further have to pay to the complainant a sum of Rs.7,000/- towards compensation and cost for the harassment caused to the complainant on account of deficiency in service on their part.

OP shall comply with the above mentioned order within 30 days of its receipt failing which proceedings u/s 25/27 of Consumer Protection Act may be initiated against them.


A copy of this order as per the statutory requirements be forwarded to the parties free of charge. Thereafter, the file be consigned to the Record Room.

Complaint Case No.169/2009

Date of Institution 30-6-2009

Date of Decision 28-12-2009

Bimla Devi wife of Sh. Paras Ram resident of village Ranabag, Post Office Showad, Tehsil Anni, District Kullu, H.P.

…Complainant
Vs

The Oriental Insurance Company Ltd through its Divisional Manager , Vidya Bhawan Hospital Road Mandi District Mandi, H.P.

…..Opposite party

For the complainant Sh. M.C.Sharma , ,Advocate

For the opposite party Sh. Sunder Goal , 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 complainant against the opposite party. The case of the complainant is that he is registered owner of vehicle No.HP-01-K-7527 ( Bajaj Tempo Trax) which was insured with the opposite party with effect from 30-5-2008 to 29-5-2009 During the currency of the insurance policy, said vehicle met with an accident on 31-10-2008 at Balh Khaner in Tehsil Anni, District Kullu, H.P due to some mechanical defect . The vehicle was being driven by Sh. Bhagat Ram who was holding valid and effective driving license and complainant had checked the same while employing him as driver. That on 31-10-2008 the vehicle was hired for transportation of marriage party and 10 persons were sitting in it .The vehicle was completely damaged and could not be repaired. The matter was immediately reported to the opposite party and all the relevant documents were supplied but vide letter dated 10-2-2009 the opposite party has repudiated the claim wrongly and illegally which act on the part of the opposite party amounts to deficiency in service . With these averments , the complainant had sought a direction to the opposite party to pay Rs.4,75,000/- i.e. the assured sum of the vehicle.

2. The opposite party had filed reply wherein it has been pleaded in preliminary objections that the complaint is no complaint and the dispute referred is no dispute, that the claim of the complainant is not payable as the vehicle at the time of the accident was being plied as taxi and was being driven by the person whose driving license was not endorsed to drive taxi as per the mandate of section 3 of the Motor Vehicles Act , therefore, this being a breach of the driving clause of terms and conditions of the insurance policy, claim was rightly repudiated , that the complainant has not approached the Forum with clean hands as he manipulated the First Information report with regard to the passengers being carried at the time of the accident which were more than the number permitted in the registration certificate as such over loading has also attributed to the accident , that the dispute had been put at rest by repudiating the claim . On merits , the opposite party averred that the driver was not authorized to drive the “ transport vehicle” It has further been submitted that the loss assessed was at Rs. 2,44,000/ on total loss basis but the indemnity was subject to terms and conditions of the insurance policy. It has further been contended that there is no deficiency in service on the part of the opposite party. The opposite party prayed for dismissal of the complaint.



3. We have heard the ld. counsel for the parties and have carefully gone through the record. Be it stated that the insurance of the vehicle and its accident is not in dispute. As per the registration certificate Annexure O-IV produced in evidence by the opposite party , the vehicle in question has been registered as LTV ( Light Transport Vehicle) . According to the complainant, the vehicle was being driven by his driver Sh Bhagat Ram and photocopy of his driving license has been annexed by the opposite party as Annexure O-II. The opposite party had repudiated the claim of the complainant on the ground that the aforesaid driving license possessed by the driver was not a valid driving license since the vehicle in question is a transport vehicle and a specific endorsement is necessary on the driving license for driving a transport vehicle.

4 Now the question which arises for consideration by this Forum is as to whether Sh. Bhagat Ram was holding a valid and effective driving license at the time of the accident. The opposite party has placed on record verification report Annexure O-III with respect to the driving license of Sh. Bhagat Ram driver issued by Registering and Licensing Authority Anni ,District Kullu, H.P. wherein it has been mentioned that “ driving license No.785/Anni issued on 21-4-2003 to drive LMV only by this office in respect of Sh. Bhagat Ram son of Sh.Dhani Ram village Kandhagai Tehsil Anni, District Kullu. The above driving license was renewed vide R.N. 68/Anni dated 25-7-2006 up to 19-4-2009 as per record of this office ”. The photocopy of driving license of Sh. Bhagat Ram Annexure O-II shows that it has been mentioned therein that driving license is valid for LMV only and LTV has also been added . The words LTV appears to have been added in a different hand writing with different ink . Therefore , in these circumstances it was incumbent upon the complainant to have produced the original driving license before this forum to show that the license of Sh. Bhagat Ram was also valid for LTV, but for the reasons best known to him , he had withheld the original driving license. Therefore , an adverse inference has to be drawn against the complainant for withholding the original driving license . The photocopy of driving license Annexure O-II placed on record cannot be read in evidence in the absence of original. From the verification report of Registering sand Licensing Authority Anni, Annexure O-III it is apparent that the Sh. Bhagat Ram driver of the complainant was possessing driving license to drive Light motor vehicle ( non transport ) only.

5 As per the registration certificate, the vehicle in question is a “ light transport vehicle ” . Section 3 of the Motor Vehicles Act,1988 , provides that a specific endorsement is necessary on the driving license for driving a transport vehicle. However, in view of verification report Annexure O-III there is no such endorsement on the driving license of Sh. Bhagat Ram that he was authorized to drive transport vehicle at the time of the accident . In a case titled as New India Assurance Co. vs Prabhu LaL AIR 2008 Supreme Court -614 = 2008(1)CPC-239 S.C , the driver was driving Tata -709 vehicle which was a transport vehicle while he was holding driving license for light motor vehicle ( LMV) without having an endorsement of transport vehicle under section 3 of the Motor vehicle Act. In these circumstances ,the Hon’ble Apex court held that the driver was not competent to drive “transport vehicle ” in the absence of valid driving license in view of sections 2,10,15 and 27 of the Motor Vehicles Act 1988 . Para No.29 and 33 of the aforesaid judgment reads as under:-

“ 29.We find considerable force in the submission of the learned counsel for the insurance company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under clause (47) of section 2 of the Act. Section 3 , therefore required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram, Narain was allowed to ply transport vehicle. On the contrary the case of the complainant was that it was Mohd Julfikar who was driving the vehicle. To us , therefore the District Forum was right in holding that Ram Narain could not have driven the vehicle in question.

………………………………………………………..

33 In the present case all the facts were before the District Forum. It considered the assertion of the complainant and defence of the insurance company in the light of the relevant documentary evidence and held that it was established that the vehicle which met with an accident was a transport vehicle. Ram Narain was having a licence to drive Light Motor Vehicle only and there was no endorsement as required by Section 3 of the Act read with Rule 16 of the Rules and Form No.6. In view of necessary documents on record , the insurance company was right in submitting that Ashoke Gangadhar does not apply to the case on hand and the insurance company was not liable.”

6 In a recent judgment the Hon’ble Apex court in the case titled Oriental Insurance Co. Ltd vs Angad Kol and others 2009(2)418 Recent Apex Judgments , a goods carriage vehicle met with an accident causing death of a lady and its driver was possessing driving license to ply light motor vehicle only. The Hon’ble Apex court had held that the driver did not held a valid and effective driving license for driving a goods vehicle Relevant portion of para No.10 of the order is reproduced herein below:-



“The distinction between a “light motor vehicle” and

“transport vehicle” is therefore evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same a distinct licenses is required to be obtained . The distinction between a “transport vehicle “ and passenger vehicle can also be noticed from section 14 of the Act. Sub section (2) of Section 14 provides for duration of a period of three years in case of an effective license to drive a transport vehicle where as in case of any other license , it may remain effective for a period of 20 years .

In the present case also the vehicle is admittedly a light transport vehicle and Sh. Bhagat Ram who was on the wheel of the vehicle at the time of accident was only authorized to drive light motor vehicle( non transport) as per the verification report of Registering and Licensing Authority, Anni, District Kullu adduced in evidence by the opposite parties as Annexure O-III and in the absence of specific endorsement on the driving license to drive “ transport vehicle”, it cannot be said that he was having a valid and effective driving license at the time of accident and we hold that the repudiation of the claim of the complainant by the opposite party is genuine and it does not amount to deficiency in service .

7 In view of the legal position and in view of what has been discussed hereinabove, the complaint fails and the same is hereby dismissed with no order as to costs

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

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

Consumer Complaint No: 34/2008

Date of presentation: 29.02.2008

Date of decision: 30.12.2009

Sh. Jagdish Chand S/o Sh.Mansa Ram,

Resident of Village and Post Office Shargaon,

Tehsil Rajgarh, District Sirmour, H.P.
… Complainant
Versus
1. The Oriental Insurance Company Limited,

Through its Regional Manager, Opp. Anup

Petrol Station, Kaithu, Shimla-3.H.P.



2. Oriental Insurance Company Ltd.,

The Mall Solan (H.P.)

through its Branch Manager.

…Opposite Parties.
@@@@@@@@@@@@@@@@@@@
For the complainant: Mr. Anirudh, Advocate vice

Mr. Sudhir Thakur, Advocate.

For the Opposite Parties: Ms. Anju Kohli, 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 vehicle bearing registration No.HP-16-2108, which was insured by him, with the OP-Company, and was valid up to, 22.03.2008. It is averred that the aforesaid vehicle met with an accident, on, 25.07.2007, during the currency of the insurance policy, in which both the legs of the complainant were grievously injured , as a result of which permanent disablement was caused to him. He further averred that, he, was admitted in Zonal Hospital Solan as an indoor patient w.e.f. 25.07.2007 to 06.08.2007, hence, he is not in a position to perform his daily normal life and there is total loss to the earning of the complainant, on account of total incapability. The complainant further proceeded to aver that he has paid premium for his personal accident amounting to Rs.100/-, hence, he is entitled for compensation of Rs.10,000/-, from the OP-Company. But the OP-Company, failed to settle the insurance claim, and is playing delay tactics. 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, admitted that the complainant is registered owner of the vehicle and the same was insured with it. It is denied that the complainant was seating on a parapet and was waiting for his truck at Sanaura, the deriver lost control over the same vehicle which hit against the tree and parapet on which the complainant was seating. It is denied that the complainant received grievous injury. They further contend that the claim was not lodged within six calendar months of such injury. It is further contended without admitting the liability, the insured shall not in the aggregate excess the sum of Rs.2,00,000/-. 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. The parties do not wrangle over the fact, that, the vehicle bearing registration No.HP-16-2108 was insured with the OP-Company, as, is, succored upon the existence of insurance cover Annexure-B, placed on record. It is also not in dispute that the accident occurred during the currency of the insurance policy. It is also not in dispute that the driver-cum-owner of the insured vehicle was insured under personal accident. The complainant, is, having a grievance, that, the action of the OP-Company, in, not settling his insurance claim, qua the injuries received by him in the accident, tantamounts to both deficiency in service, as well, as, an unfair trade practice, on the part of the OP-Company. The OP-Company, in its reply, has contended, that, as the complainant was admittedly sitting on a parapet and was waiting for his truck, the driver lost control over the same, which hit against the tree and parapet, hence, he has received the injuries, if any, while the vehicle was not being driven by him, as such, the OP-Company, is exculpating its liability to indemnify the insured. As also, it, is, contended, that, hence, while he was not occupying the vehicle, rather, was purportedly hit by the purported negligent use, of, the vehicle in a Public place, the claim for, compensation for, injuries, if any, sustained can be laid before the competent Motor Accident Claims Tribunal.

6. Assuming that he was badly injured in the accident, even then, the complainant has not been able to place on record medical evidence to prove the indemnifiable insurable disablement, he, had come to receive in the aforesaid accident. He has only placed on record the discharge slip Annexure-A, wherefrom, we are unable to adjudge the disablement accruing from the injuries, if any received by him. For lack of adduction of cogent, convincing and apposite evidence, it cannot be construed, that, both legs of the complainant were grievously injured and, that, too, within the scope of the, insurable indemnifiable cover.

7. Besides, the complainant has also not been able to place on record any proof qua lodging of the claim arising from the very incident, with the OP-Company, as it has been categorically, contended on behalf of the OP-Company, that, no claim whatsoever, was lodged with them, by the complainant. It was incumbent upon the complainant, to have lodged the claim with the OP-Company. His failure to do so, also smacks suspicion regarding the genuineness of the claim, so lodged by him before this Forum. Therefore, we have no hesitation, in, concluding that the complaint has not been able to prove on record any deficiency in service on the part of the OP-Company. Moreover, we are of the view, that, in the manner the accident take place while with his not occupying the vehicle, rather, with his admittedly sitting on, a parapet, at, which place he was hit, by, the insured vehicle, constitutes an injury to him caused by the purported negligent user of the insured vehicle in a public place, which manner of his receiving injuries, by the purported negligent manner of its being driven, hence, may vest jurisdiction, for, awarding of compensation, if any, by the competent Motor Accident Claims Tribunal.

8. The result of the above discussion, is, that there is no force in this complaint and it being merit less, is, liable to be dismissed and we order accordingly. No order as to the costs. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.