Case No. DF 62/2008

Smt. Aparajita Kahali, Amlapara,

P.O.& P.S Mathabhanga,

Cooch Behar …………………………….……. Complainant
Vs

1. The Branch Manager,

Oriental Insurance Co. Ltd,

Rup Narayan Road, P.C. Sharma Building,

P.S. Kotwali,

Dist.- Cooch Behar.

2. The Regional Manager,

Oriental Insurance Co. Ltd,

4,Layons Range,

Kolkata-700001.


3. Paramount Health Services Pvt. Ltd.

ICMARD Building,

8th floor, 14/2 CTI Road,

Scheme VIII-M

Ultodanga, Kol.- 67.………………….. ……..……. ……OP.S.









In nutshell the facts of the case are that the Complt as an employee of LICI is covered under a mediclaim policy consisting of two family members for some assured of Rs. 60000/- only each issue 30.10.1997.



The Complt. was under the treatment of Dr. Goutam Khastgir at Kolkata as she was suffering from some physical aliment which was finally diagnosed as ‘polycystic ovarian syndrome’ by doctor who advised for a laparoscopic surgery.



The Complt. was admitted to Belle Vue Clinic and the said operation was done on 11.03.2004 by said doctor Gautam Khastgir and was released from the nursing Home on 12.03.2004.



The complt. had to make the entire payment of Rs.29,133/- to the Nursing Home under compulsion and submitted claim Form on 16.03.04 along with Original copy of all relevant papers duly verified and authenticated by the said doctor, to the OP No 2 for settlement of claim .



The OP3 intimated over phone that they have completed assessment regarding claim and sent the same with their opinion to Mumbai office of OP2 to clear the payment.



The Complt. sent several letters to the OPS with request to settle the claim but the OPS sent no reply.



On 14.07.8 the complt. came to learn that her claim has been repudiated.



Therefore the complt. has filed the present complaint on 12.08.08 praying for compensation as mentioned in the complaint.



The case has been contested by OP 1,2 by filing written version contending inter alia that the case is not maintainable in law or on fact.



The OPS have admitted that the complt. is an employee of the L.I.C. of India and covered under a Mediclaim policy ( Group) of OPS.



The OPS have stated that complt. filed claim Form through Branch Manager, LIC of India and after receiving the claim Form on 23.04.04, OP No 3 intimated the Manager O.S., L.I.C.I. Jalpaiguri that the insurance claim has been rejected as because the treatment for primary infertility is not included in this policy.



As per clause 4.8 of the policy any fertility, Subfertility has not been included in this policy and there was no neglicence or deficiency of service on the part of the OPS.

The OPS have prayed for dismissal of the case with cost.



The OP 3 has not appeared and the case has been heard exparte.


Points for determination



No(1) Whether the O.P.S caused any deficiency in service against the complainant by not settling her claim?



No (2) Whether the Complt. is entitled to get the relief, and compensation as prayed ?



Decision with reasons



Perused the evidences, the documents, , the affidavit in chief, counter affidavit and written argument filed on behalf of the Parties. Considered.



It is not in dispute that the complt. was covered by a Mediclaim insurance policy ( Group) insured by Oriental Insurance Co. Ltd., the OPS. It is not in dispute that the complt. suffering from some aliment was advised by Dr. Gautam Khasgir at Kolkata to undergo an operation for the aliment finally diagnosed as polycystic ovarian syndrome.



Admittedly the complt. was admitted to Bellevue clinic and the operation was performed there.



The complt. had to make entire payment of Rs 29,133/- to the Nursing Home . Subsequent to the operation and recovery of the complt. claim was lodged and necessary papers were submitted by the complt. The OPS did not settle the claim.



Alleging deficiency in service the complt. sought for direction to the OPS to pay claim amount and compensation.



It is alleged that inspite of repeated request the insurance co. remained heedless to the claim without showing any valid reason.



The OPS has stated that the complt. is not consumer of the OP as because L.I.C.I entered into agreement with OP2 for policy.



The letter of L.I.C. dt. 1.11.08 goes to show that the complt. is covered under the group mediclaim policy and regular deduction is being made from her salary towards the insurance premium.



In 2003-04 the Oriental insurance co. was the insurer and the deduction during the period 2003-04 was regularly made from the salary. The argument that the complt. is not a consumer of the OP is not tenable.



The OPS have stated that the Complt. filed the claim Form through the Manager, O.S. L.I.C.I. and after receiving the same the OP 3 intimated the L.I.C.I. by letter dt. 23.04.04 that claim has been repudiated on the ground of treatment for primary infertility is not payable but there is no evidence to show that any copy of such letter was forwarded to complt. for information .



The Consumer Protection Act, 1986 provides effective safeguards to consumers against supply of defective goods , unfair trade practice and other forms of their exploitation .



It is case of the complt. that the ailment has been diagnosed as ‘ polycystic ovarian syndrome’ and the positive finding of investigations appeared as Bilateral ovarian cysts but in the Discharge certificate the ailment has been diagnosed as primary infertility , irregular menstrual cycle, and lower abdominal pain.



Therefore the points to be discussed in the case lie in a narrow compass.



It is contended on behalf of the OPS that the Form of Hospitalisation of Beneficiary was filled up on 9.3.04 and the surgical operation was performed on 11.03.04 for treatment of primary infertility etc and as per clause 4.8 of the policy any fertility, subfertility are not included in the policy.



It has fairly been asserted on behalf of complt. that initially Dr. Gautam Khastgir diagnosed the ailment as infertility but after various pathological test, investigations, clinical examination and even after surgery the said doctor did not opine in any report that the patient was suffering from infertility related complications.



Dr Gautam Khatgir not only treated the patient form the beginning but also conducted the surgery.



The Form Hospitalisation of Beneficiary goes to show that the probable Diagnosis was ‘polycystic overean sysdrome’ and the positive finding of the investigation as mentioned is ‘ Bilateral ovarian cyst.’



There is nothing to show that this has any connection with infertility or that cyst in ovary leads to infertility.



The Laparoscopic surgery for ovarian drilling and pelvia endometriosis was done by Dr. Khastgir on 11.03.04 and patient was released on 12.03.04.



Dr Khastgir while releasing patient from Nursing Home issued a certificate on 12.03.04 which goes to show that the Diagnosis was primary infertility, irregular menstrual cycle and lower abdominal pain due to peos and polvic endometriosis.



The burden lies upon the OPS to prove that the complt. was under treatment for primary infertility and was admitted to Nursing Home for operation and she underwent operation. No affidavit of the doctor treated and performed operation has been obtained and produced by the OP insurance co for necessary clarification in the matter.



On perusal of various tests and investigation the consulting doctor came to the positive finding before the operation that it was Bilateral ovarian cyst and there is no evidence to show that the patient subsequent developed primary infertility . It is also not the case of OP that the consulting doctor treated the complt. and issued the Form of Hospitalisation of Beneficiary addressed to OP3 without making proper diagnosis of disease.



Therefore in the instant case after perusing the materials on record we hold our opinion that the OPS insurance co. have acted in a negligent manner to settle the claim of the complt. and for this the complt had suffered mental agony and deprived of getting the entire payment of Rs. 29,133/- made to the nursing Home for her treatment and operation.



Further we hold that the OPS Insurance Co. certainly caused deficiency in service against the complt. by not settling and repudiating the claim of the complt. wrongly.

Point No.2:- Under the circumstance since the complt. has been deprived of getting the payment of her treatment and operation from the Op Oriental Insurance co. Ltd. there is reason for the complt. to get reliefs as prayed for.

Hence

Ordered

that the complaint dt. 12.08.08 of the Complt.is allowed on contest with cost of Rs. 2000/- .

The OPS are directed to pay Rs. 29133/- ( Rupees twenty nine thousand on hyndred amount together with interest @ 9 % from 16.3.04 the date of submitting claim Form till realization.
The OPS are further directed to pay compensation of Rs.20,000/- towards harassment, mental agony within 45 days from this date of order and in default a penal interest @ 10% p.a shall be levied upon the unpaid amount till realization.

C.C.CASE NO.135 OF 2007
Uttam Ghosh,

Sainya, P.O. Pawan,

P.S.Polba,

Dist.Hooghly

…. Complainant
-vs-
The Oriental Insurance Co.Ltd.

Dutta Super Market,

Akhan Bazar,

Chinsurah

Hooghly. … Opp.Party

Present : D.K.Basu … President

S.Basu … Member

Reeta Roychowdhury

Malakar … Member

Date of delivery of judgement : 5.1.2010

The fact of the complainant’s case in brief is as follows :



The complainant Uttam Ghosh has filed the case against the Oriental Insurance Co.Ltd. , Branch office at Chinsurah, Dutta Super Market, Akhan Bazar, Chinsurah, Hooghly alleging that he purchased a motor cycle (Hero Hunda Splender) from Fair Deal Automobiles, Balikukhari, Harrit, on 19.11.2004 vide no.WB-16P/6253 and got an insurance policy for the said motor cycle. On 17.3.2006 at about 2 p.m. keeping aside the motor cycle in front of a house which was constructed , the complainant entered into that constructed house, coming back within ten minutes he noticed that the said motor cycle was missing . On search here and there he did not find out. On 17.3.2006 he lodged the complaint before Pobla P.S. vide case no. 60/06 . On 8.9.2006 the complainant informed the fact of theft to the OP and claimed compensation . Mr.A.K.Chakraborty, the Surveyor, of the Opposite party sent a letter on 18.9.06 asking him to supply some documents . On 18.10.06 the complainant submitted the documents to the office of the Opposite party except Blue book which was with the said motor cycle and lost along with the motor cycle. On 21.11.2006 the surveyor interrogated the villagers as to the theft and advised the complainant for submission of duplicate keys, original vehicle document and carbon copy of FIR which was also deposited to the Ops office. On 2.1.2007 he deposited the duplicate key of the stolen motorcycle and on 23.3.2007 copy of FIR, charge sheet, vehicle delivery certificate and driving licence were deposited. He also informed the RTA on 22.5.2007 as to the theft of the said motorcycle. On repeated requests as he did not get the compensation, by filing the instant case he has prayed for directing the OP to disburse the insurance amount of Rs.29,400/- with l0% interest from the date of stolen the said motorcycle, Rs.5000/- as litigation cost and other reliefs.


The OP has also contested this case by filing a written version whereon he has denied all the material averments of the complaint . admitting that the surveyor sent a letter to the complainant on 18.9.2006 asking him to furnish the keys and other documents . He also denied the furnishing the documents on 18.10.2006 and also the compliance of the Surveyor’s request on 24.11.2006. The OP has also admitted that on 21.11.2006 the surveyor visited the spot i.e. under construction house but has denied that the surveyor interrogated all the villagers as to theft of the motorcycle. It has further stated in the written version that there is no explanation as to eight hours delay in lodging the FIR, 22 days delay in intimating the insurer and nine months delay in intimating the RTA. It is further alleged in the said written version that the case is liable to be dismissed.

In view of the above facts the followings can be taken into account for proper adjudication.
1) Whether the OP has any deficiency in service in settling the complainant’s claim ?

2) Whether the complainant is entitled to get relief as prayed for ?

Contd…3

FINDINGS WITH REASINS


Both the points are taken together for the sake of convenience and also for the purpose of avoiding needless repetitions.



The complainant has examined two witnesses in support of the case. The OP on the other hand, has not examined any witness.

It is admitted fact that the complainant had a policy to the tune of Rs.29,400/- as to the Motorcycle no.WB-16P/6253, Hero Hunda Splendo of the complainant Uttam Ghosh which remained valid till 15.7.2007 . According to the complainant the occurrence of theft took place on 17.3.2006 . It is not the case of the OP that the complainant had no valid policy at the relevant period of theft. On the other hand, the surveyor of OP enquired the case and demanded some documents from the complainant.


The Xerox copy of the documents issued by Fair Deal Automobiles which is numbered as 1 reflects that the key was deposited to the OP. The Xerox copy of the FIR and the final report which has been numbered as 2 reflect that Uttam Ghosh lodged an FIR as to theft of one Hero Hunda Splendo vide registration number WB 16-P/6253 vide FIR no.60/06 dated 17.8.2006 U/s 379. The Xerox copy of the Final report reflects that one Swapan Mukherejee , SI of Police, Polba P.S. submitted the Final report on 31.1.2007 stating “I consulted the case with my superiors who were pleased to direct me to submit Final report as to U/s 379 IPC in this case.” The document as noted in serial no.4 issued by A.K.Chakraborty divulges that in his letter no.LKC/OIC/theft /N.S./031/06-07 dated 18.9.2006 requested to Uttam Ghosh to supply some documents which are depicted thereon. The document noted as serial no.5 reflects that Uttam Ghosh, the complainant submitted the motor claim form duly filled in.


All the above cited documents reflects that inspite of deposits the required documents the OP did not settle the matter with the complainant.

The learned lawyer of the complainants has argued inspite of deposit of all the documents to the OP as asked for the OP has not settled the claim as yet. He has further argued that he has clearly stated that as the Blue Book was in the motorcycle which has been lost along with the said motorcycle, he could not supply the said Blue book in original.


The learned lawyer of the OP has argued that the FIR does not reflect that the Blue book has been lost. There is no explanation why delay was caused in lodging the FIR. No local people wherefrom the said vehicle was missing has been examined by the complainant as witness. Besides, it is the duty of the complainant to keep the said motorcycle in safe custody . The complainant has/had not discharged that duty. Without furnishing the documents as asked for the OP is unable to settle the matter.

Perused the Rulings cited by the learned lawyer of the complainant vide no.1(2009) CPJ 183 (NC) which states as follows “………….vehicle stolen-claim repudiated by insurer-once policy registered the case u/s 379 IPC loss comes within definition of theft – question of breach of trust will not affect right of person, who lost the vehicle – insurer liable under policy.”

He has cited another ruling reported in CPJ vide no. II(2008) CPJ 221as “(II) limitation – time barred – insurance claim – policy neither settled nor repudiated inspite of service of legal notice-continuing cause of action-Forum erred in dismissing complaint on limitation ground – order set aside in appeal”. This order was passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad .

It is admitted fact that the OP has not yet settled the matter or has not yet repudiated the claim. The FIR and the Final report submitted by the Polba Police clearly transpire that the said motor cycle was stolen . The complainant’s case is that inspite of deposits of documents as claimed by the OP , the OP has not settled the claim as yet or has not yet repudiated the same. Non settlement of the claim in a considerable period tantamount to deficiency in service. Thus, the OP has obviously committed deficiency in service towards the complainant.

In view of the above observation we are of opinion that the complainant has succeeded in establishing the case.

Hence ordered
That the instant case is allowed on contest with cost of Rs.2000/-.

The OP is directed to pay the insured amount of Rs.29,400/- (Rupees twenty nine thousand four hundred) to the complainant within 40 days from the date of this order, failing which the entire amount namely Rs.29,400/- + Rs.2000/- as cost i.e. Rs.31,400/- will accrue interest @ 8% per annum from this day till the date of making payment of the entire amount to the complainant.
The complainant do receive the above cited sum from the OP within the stipulated period cited above.

Hand over a copy of the order to the parties free of cost.

The case is disposed of beyond statutory period.

consumer case(CC) No. CC/09/105

Calcutta South Transport Company
...........Appellant(s)

Vs.

The Oriental Insurance Co. Ltd.
...........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. 105 / 2009

1) M/s, Calcutta South Transport Company,

20, Phears Lane, Kolkata-12. ---------- Complainant

---Verses---

1) The Oriental Insurance Co. Ltd.,

Divisional Office-I,

10, Middleton Row, Kolkata-71. ---------- Opposite Party


Present : Sri S. K. Majumdar, President.

Sri T.K. Bhattachatya, Member

Order No. 9 Dated 0 8 / 0 1 / 2 0 1 0 .

Complainant P.K. Krishnaprasad, the proprietor of M/s. Calcutta South Transport Co. by filing a petition u/s 12 of the C.P. Act on 3.3.09 has prayed for issuing a direction upon the o.p. Oriental Insurance Co. Ltd. claiming Rs.52,420/- payable by the o.p. and interest @ 18% p.a. and compensation of Rs.50,000/- and litigation cost etc.

Fact of the case in short is that the complainant purchased a vehicle which was registered on 13.7.07 and the said vehicle met with an accident on 18.10.07 and was damaged and the insurance package policy was valid till 17.6.08 and survey of the damage out of the accident at Chittoor, Tirupati Road was taken and the vehicle viz. the truck AP-16-TX-0553 was repaired by the company and the said company billed Rs.2,03,910/-. The o.p. reimbursed the claim of the petitioner partly instead of paying full amount of Rs.2,03,910/- deducting therein Rs.52,410/- without assigning any reasons whatsoever and completely violated the terms and conditions of the insurance policy and it amounts to deficiency of service and unfair trade practice on the part of the o.p. and being aggrieved the complainant sent lawyer’s notice on 23.10.08 to the o.p. claiming therein Rs.52,410/- and thereafter filed this case with the aforesaid prayer against the o.p.



The o.p. has contested this case by filing a w/v, denying interalia, all the material allegations against them contending that the case is not maintainable in its form and law that the complainant is not a consumer. Specific case of the o.p. is that the surveyor assessed the loss of Rs.1,65,170/- towards the cost of damage of the vehicle by accident against the estimated cost of Rs.4,16,698.62. Accordingly, the o.p. approved the claim of Rs.1,51,500/- in full and final settlement and the o.p. issued the cheque on 24.3.08 to the insured who received the cheque and acknowledged the same without any protest. After full and final settlement the claim of the complainant cannot permitted be re-open and re-agitat in this forum and accordingly, the case is liable to be dismissed.



Decision with reasons :

The main points to be decided in this case are that whether the complainant is a consumer as provided u/s 2(d) of the C.P. Act, 1986 and whether he claim of the complainant of Rs.52,410/- is justified.



Evidently, the complainant is owner of the vehicle in question bearing insurance registration no.AP-16 TX-0553 for goods carriage and the o.p. provided insurance coverage of the said vehicle and in this respect annex-A is the relevant document. It is the certificate of registration. It is not available from the record including the documents that it is used for commercial purpose. It is not also alleged in the affidavit sworn by Dilip Kr. Das on behalf of the authorized agent of o.p. that the complainant used the vehicle in question for commercial purpose. So, the o.p. could not prove that the complainant is not a consumer.



Further admitted position is that the vehicle in question met with an accident and for repairing purpose the complainant on the basis of the surveyor’s report got the vehicle repaired by the authorized company M/s. Automotive Manufacturers Pvt. Ltd. of Ashoke Leyland Truck Manufacturing Co. and the said company billed for Rs.2,03,910/-. The amount of repairing charge was on the basis of the surveyor’s report. We have perused the Xerox copy of the bill, annex-C, but instead of making full payment, the o.p. deducted Rs.52,410/- without assigning any reason whatsoever and against such short payment the complainant protested by sending letter vide annex-E and it is the specific grievance of the complainant that even in spite of repeated demands and request the o.p. did not make payment ofRs.52,410/- and as such, he sent lawyer’s notice vide annex-E and filed this case with the aforesaid prayer.

No cogent reason whatsoever has been assigned by the o.p. for such short payment of Rs.52,410/- to the complainant. We have also perused the evidence of the complainant and all his evidence is corroborative in nature with the petition of complaint. we have also perused the cheque for Rs.1,51,500/- given to the complainant for the vehicle bearing no.AP-16 TX-0553 dt.25.3.08. Therefore, considering the facts circumstances and evidence on record, we are of the opinion that the complainant is entitled to get the relief as ordered hereunder.

Hence,
Ordered,
that the petition of complaint is allowed on contest against the o.p. The o.p. is directed to make payment of Rs.52,410/- (Rupees fifty two thousand four hundred ten) only to the complainant positively within 45 days from the date of communication of this order and the complainant do also get an award of compensation of Rs.10,000/- (Rupees ten thousand) only and litigation cost of Rs.5000/- (Rupees five thousand) only and the o.p. is directed to make grand total payment of Rs. 67,410/-(Rupees sixty seven thousand four hundred ten) only positively within 45 days from the date of communication of this order, failing which it will carry interest @ 10% p.a. till realization. Fees paid are correct.
Supply certified copy of this order to the parties on payment of prescribed fees.

CONSUMER CASE NO. : 62/S/2009 DATED : 28.01.2010.

BEFPRE PRESIDENT : SMT. ANITA DEBNATH,

Ex-Member of W.B. Higher Judicial Services and

Addl. Dist. & Session Judge,

President, D.C.D.R.F., Siliguri.
MEMBER : SMT. PRATITI BHATTACHARJEE
&
SRI ASIT RANJAN DAS.

COMPLAINANT : SRI PANKAJ KUMAR SHARMA,

Sri Ram Colony,

New LIC Building,

Sevoke Road, Siliguri – 734 001.

O.Ps. 1) : THE BRANCH MANAGER,

Oriental Insurance Co. Ltd.,

Gurudwara Building, Sevoke Road,

Siliguri – 734 001.

2) : MEDICARE TPA SERVICES PVT. LTD.,

Flat No.10, Paul Mansions,

6B, Bishop Lefroy Road,

Kolkata – 700 20.
FOR THE COMPLAINANT : Sri Sanjit Kumar Gupta, Advocate.

FOR THE OP No.1 : Sri Kanak Lal Kundu, Advocate.
J U D G E M E N T

This is a case for realization of medical expenses to the tune of Rs. 7,270/- together with expenses u/s 12 0f the CP Act,1986.

The case of the complainant obtained a medi claim policy from the Opposite Party no.1 on 20.5.08 under Policy no. 313207/48/2009/158 for assured sum of Rs. 50,000/- and is a regular customer under the OP No. 1.

The Complainant developed a Chest pain and sweating and he was taken to Dr. P.L. Agarwala at Shanti Swasthalaya and Anusandhan Kendra Pvt. Ltd. by the family

Contd….P/2

-:2:-

members on 7.7.08 and after checking he was advised for admission in Nursing Home and accordingly the complainant got admission in Nursing Home he was under the treatment of Dr. P.L.Agarwala. He had to stay there for two days for the purpose of treatment for which he incurred a sum of 2232/- towards medicines and incurred a total sum of Rs. 7,270/-.

After recovery the complainant submitted a claim of Rs. 7,270/- before the OP No.2 with all original documents under letter dated 13.10.08. But the Opposite Party did not respond against the claim. Subsequently the OP No.2 repudiated the claim as ‘No Claim’ on 13.3.09.

On receiving the said letter the complainant requested for re-opening the claim by letter dt. 25.3.09 with a copy to the OP no.1 foe settlement of the claim lodged by the complainant as the policy was issued by the OP No.1. Even then no reply was received either from the OP No.1 or OP No.2.

As the Opposite Parties neglected to reimburse the legitimate claim of the complainant and the complainant being a consumer under the Ops he has filed the instant case for relief. Hence, this case is supported by affidavit.

The opposite Party no. 1 contested the case by putting Written Version supported by affidavit denying the claim of the complainant with a specific defense, that the case is not maintainable.

The complainant got admission in the Nursing Home only for diagnostic/ evaluation purpose and he had not undergone for any treatment of chest pain. The expenses as incurred comes under the exclusive clause 4.10 of the said policy.

The Opposite Parties no.2 was appointed by the Opposite Party no.1 as per Insurance Regulatory and Development Authority (Third Party Administrators Health Services) Regulation 2001 and the OP no.2 is an independent body under the said Regulation.

It is further alleged after obtaining the requisite documents and on examination the OP no.2 informed the OP no.1 by a letter dt. 17.2.09 issued by Dr. AnanyaMoitra, the authorized signatory that the claim has been adjudicated by the Doctors Panel as to ‘no Claim’ is primarily for Investigation/ Evaluation purpose and all Reports and within Normal limit, no definite Diagnosis for chest pain is found. The case does not require Hospital Confinement and the patient is admitted for investigation purpose. Hence, the claim is not payable.

Since the OP No.2 being an Independent body has got full right to adjudicate of the admissibility or inadmissibility of the claim.

There is no claim comes within the clause no 4.10 the claim is not payable.

Contd….P/3

-:3:-



There is no deficiency of service on the part of the OP no.1 who is not negligent in discharging this duties and as such the claim is liable to be dismissed with cost.

Upon consideration of the Pleadings of the respective parties the following points are framed for adjudication.

Points for consideration

1. Is the case maintainable ?

2. Is there any deficiency of services on the part of the Opposite parties ?

3. Is the complainant entitled to get compensation as prayed for ?

4. To what other relief ?

Decision

Point No.1

This point has not been pressed by the Ld. Advocates at the time of final hearing. But when the OP took such defense it is to be considered as to whether the complainant is a Consumer or not.

Sec 2 (1)(o) means service of any description which is made available to potential users including facilities in connection with Insurance also.

The Complainant hired the service of facility of Insurance under the Mediclaim on consideration. When such service required to be rendered under the policy has been denied the complainant is a consumer under the CP Act,1986 and the nature of dispute as provided under Section 2(1)(e) of the CP Act,1986

Therefore, the case is maintainable in favour of the complainant.

Points No. 2 to 4.

These points are taken up together for the sake of convenience.

The sole contention of the complainant that he fell sudden illness of Chest pain for which he was taken to Dr. P.L. Agarwala who advised to get admission for check up. Accordingly he got admission in Nursing Home and incurred a sum of Rs. 7,270/- including medicines.

In support of his contention the complainant furnished Xerox copy of the Mediclaim Policy stands in his name, copy of the policy-claim Form, Letter of intimation dt. 22.7.08, Bill dt. 9.7.08 issued by Shanti Swasthalaya & Anusandhan Kendra Pvt. Ltd., Cash memo dt. 7.7.08, 18.7.08, 1.9.08, copy of claim Repudiated letter dt. 17.2.09 and letter of Request dt. 25.3.2009.

In addition the complainant led evidence by way of affidavit in chief narrating the case in terms of the complainant and he was cross examined in the form of interrogation and reply thereto.

Contd….P/4

-:4:-



The complainant also examined Dr. P.L. Agarwala as P.W. 2 who categorically stated in his evidence supported by affidavit that the complainant came to him with problem of chest pain and all these tests as advised were required to know the cause of chest pain for the purpose of better diagnosis.

The OP no.1 led evidence through one Sri Shyamal Kr. Chakraborty who was cross examined by way of interrogatory and reply there to by way of affidavit.

The sole defence is that the complainant made all these tests/ pathological tests only for investigation and / evaluation purpose for which the claim of the complainant was repudiated. (Annx.- B)

The Opposite Party no.1 also furnished all the medical papers as submitted by the complainant before them for consideration of his claim.

It has been argued by the Ld. Advocate for the OPno.1 that no such document has been placed that the complainant ever made any treatment by any chest specialist for his chest pain or is under the treatment of any chest specialist for alleged chest pain. Since Dr. P.L. Agarwala is not a chest specialist and only a general physician and burns specialist it indicates that the complainant only visited to the said doctor for realization of expenditure as incurred towards Bloods and pathological tests taking advantage of the policy under the Mediclaim. It has been further argued that the nature of investigation falls within the Exclusion Clause the complainant is not entitled to get the amount as sought for and referred the clause 4.10 under the general rule as prescribed for Mediclaim.

Clause 4.10 lays down that expense incurred at Hospital or Nursing Home primarily for evaluation/ diagnostic purposes which is not followed by active treatment for the ailment during the hospitalized period.

It has been further pointed it out all the reports speak that there is no abnormality in the physical condition rather all these reports speak about within the normal range by which it can be deduced that no active treatment was undertaken and those relate with routine check up for evaluation purpose.

We have gone through the prescription dt. 7.7.08 (Annexure C) issued by Dr. P.L. Agarwala from which it reveals that the complainant came to the doctor concerned for chest pain for which he was advised for different types of medical tests and also advised for admission in Nursing Home.

The doctor concerned was examined in the instant case as PW 2 but he was not cross examined by the OP No.1 nor took any steps for cross examination of the said witness, Dr. P.L. Agarwala who stated that all these tests was required for ascertaining


Contd….P/5

-:5:-



the cause of chest pain for the purpose of better diagnosis. The said evidence remains unshaken. The OP no.1 led evidence through one witness who is not expert one in medical science. Even the Authorized Signatory Dr. Anaya Moitra who repudiated the claim of the complainant has not been examined to controvert the case of the complainant as to that the complainant was not under any active treatment of chest pain. If the said doctor be examined or the paneled doctors be examined the complainant can get opportunities by way of cross examination for unavailing the truth that he was not suffered from any chest pain as challenged and all these tests as advised was done only for evaluation purpose.

When the attended doctor was examined and categorically stated about the requirement for ascertaining the nature of ailment and/or for proper diagnosis why such testimony would be disbelieved and when it remains unshaken.

Therefore, considering the circumstances supported by the medical papers the Forum is of the view when the doctor concerned thought it fit for ascertaining the nature of disease it should not be thrown away and/or dealt with lightly rather for better management these tests were done as per advice of the doctor concerned for avoiding unforeseen event which may take place at any moment. Further it was chest pain related with heart related disease or the effect of gastritis disease it ought to have been diagnosed.

Therefore, the Insurance Authority can not say that these tests were done only for the purpose of evaluation and for such tests were done only for recovery of mediclaim.

Usually the mediclaim policy is obtained in order to get rid of financial crisis and also emergency purpose if such situation arises. But the nature of repudiation as made by the OP no.2 is not proper and arbitrary and illegal.

In this context, it has been urged that the Agreement in between the OP No.1 , the Insurance Company and the OP No.2 , Medicare T.P.A. Services (I) Pvt. Ltd. under the Insurance Regulatory and Development Authority (Third party Administrators- Health Services) Regulations 2001. The OP no.2 has authorized foe examination of documents as sent under the policy terms and conditions and to reject or accept the claim being satisfied.

We have gone through the said regulation it is their internal affairs and there is no dispute in this regard. But question is the manner of rejection/ repudiation of the claim is proper or not?

Considering all the documents supported by the evidence of Dr. P.L. Agarwala we are of the view that the nature of repudiation is illegal, improper and not justifiable and it



Contd….P/6

-:6:-
amounts to deficiency of service also on the part of the OP no.1. The said policy being no. 313207/48/2009/158 stands in the name of the complainant issued by the OP no.1 clearly speaks about the payment for hospitalization expenses for medical/surgical treatment as taken an in-patient at any Nursing Home/ Hospitals in India in the Policy.

Therefore, when the complainant incurred the amount of Rs.7270/- as in patient of the said Nursing Home as per advice of the Dr. P.L.Agarwala for his chest pain the complainant can realize the same from the OP no.1 only as the OP no. 2 has no role to satisfy the claim under the policy in question and the claim is sustainable supported by medical papers as evidence led by doctor P.L.Agarwala.

So the complainant is entitled to get Award of Rs. 7,270/- from the OP no.1 only.

In the result, the points are disposed of in favour of the complainant in part.

Hence, it is

O R D E R E D

that consumer case no 62/S/2009 is allowed on contest in part against the OP no.1, the Oriental Insurance Co. Ltd. with cost of Rs.1000/- and dismissed Ex-parte against the OP No.2/Medicare T.P.A. Services (I) Pvt. Ltd. but without cost.

The complainant is entitled to get as Award of Rs.7,270/- (Seven thousand two hundred and seventy ) only from the OP no.1 , the Insurance Company only.

The OP no.1 is directed to pay the Awarded sum of Rs. 7,270/- to the complainant within 45 days from the date hereof failing which the amount stands/ do carry interest @9% from the date of institution of the instant case dt. 4.8.09 till the realization of the said amount.

There is no order as to compensation.

Let the Xerox copies of the Judgement and order be supplied to the parties free of costs.

Case No.1069/07

Nand Kishore, BE-401, Hari Nagar, New Delhi.

………Complainant

Versus

1. The Oriental Insurance Co. Ltd., H.O.:A-25/27, Asaf Ali Road, New Delhi – 2.

Branch office : 715-718, Indraprakash Building, Barakhambha Road, Cannaught Place, New Delhi – 1.

2. Genisis India Ltd., D-60, Sector 02, Noida-201301 (TPA).

3. Shri Balaji Action Medical Institute, FC-34, A-4, Paschim Vihar, New Delhi – 63.

……..Opposite Parties

CORAM : J.P. SHARMA : PRESIDENT

: S.M. MAZUMDAR : MEMBER

: DR. PREMLATA : MEMBER

O R D E R

J.P. SHARMA (PRESIDENT) :

The facts of this case are that complainant had taken Mediclaim Policy ever since Nov.’01 which was being got renewed regularly on payment of premium. OP-1 happens to be the insurer while OP-2 are 3rd Party Administrators (TPA) for Mediclaim cases of OP-1. OP-3 – Shri Balaji Action Medical Institute happens to be the hospital where complainant got the treatment on account of high fever and swelling in the right foot during the period 24.03.2006 to 30.03.2006. Complainant’s grievance is that he was denied the benefit of cashless treatment facility by OP-2. After discharge from the hospital, complainant submitted the mediclaim for Rs.15,357/- with necessary documents to OP-2 which mediclaim was not processed till Dec., 2006 and therefore, complainant filed a complaint u/s 12 of C.P. Act before this Forum which was decided vide orders dated 25.10.2007. OPs. were directed to pay compensation of Rs.5,000/- for not processing the claim of the complainant and further to decide the mediclaim of the complainant on merit within one month. Though compensation amount of Rs.5,000/- was paid to the complainant but his mediclaim was rejected on merits which decision was communicated vide letter dated 30.11.2007 to the complainant. Complainant, therefore, has filed this 2nd complaint before this Forum for directions to OPs. 1 and 2 to pay his mediclaim amount together with compensation and cost as according to him repudiation of his claim on the ground of pre-existing disease was illegal and uncalled for.



OPs. 1 and 2 in their separate written statement did not deny that complainant was having the mediclaim policy ever since Nov., 2001 and that his mediclaim for Rs.15,357/- was repudiated on the ground of exclusion clause regarding pre-existing diseases. OP-1 on this aspect in their written statement referred to the report of their panel doctor which is reproduced below :-

“Mr. Nand Kishore is under cover of policy since 25.11.2003 and in his proposal form he has not declared any history of past surgery/disease which he had been diagnosed as a case of horse shoe shaped kidney and as per his letter, he had been diagnosed as a case of horse shoe shaped kidney in 1995 in AIIMS where his nephrolithotomy was done. Now as he is suffering from urinary Tract Infection which could be due to disease for which he has already undergone surgery in 1995 in AIIMS and since he has not declared this fact of his suffering from horse shoe shaped kidney in his proposal form at the time of inception of policy so that present claim is related to that disease, is now being recommended for repudiation under the terms and condition of policy clause of pre-existing disease as well as for concealment of fact.”

OP-1 also pleaded that complainant did not submit the complete papers as desired/required by TPA for processing his claim despite several reminders/queries.

OP-3 in this case happens to be a formal party as complainant has simply taken the treatment from OP-3 Shri Balaji Action Medical Institute.

In the rejoinder, complainant controverted the case of OPs. and reiterated his claim as set out in the complaint.

Parties filed affidavits in support of their rival contentions.

We have heard Sh.R.L. Srivastava – Ld. Counsel for complainant, Sh.Akshay – proxy counsel for OP-1, Sh. Satyajit Patra – Ld. Counsel for OP-2, have gone through the material on record and have considered their relevant contentions.

A perusal of the repudiation letter dated 30.11.2007 shows that the claim of the complainant was repudiated on the following grounds :-

“As regards settlement of claim, we have gone through the claim papers and have come to the conclusion that the said claim is not payable since it is the case of PRE-EXISTING DISEASE and you have not declared any history of past surgery/disease which you have been diagnosed as a case of horse shoe shaped kidney in the Proposal Form.”

At the very outset we would like to point out that OPs. 1 and 2 in this case have miserably failed to make out a case that complainant concealed the factum of his being a case of horse shoe kidney while submitting the Proposal Form for getting the mediclaim policy issued ever since 2001. For the reasons best known neither OP-1 nor OP-2 have preferred to place on record the proposal form/forms obtained while issuing the first mediclaim insurance policy or while renewing the mediclaim policy till 2006 ever since the year 2001. It, therefore, cannot be said that complainant concealed the factum of his being a case of horse shoe kidney from OPs. while obtaining the mediclaim policy or while getting the same renewed from time to time.

Though in the written statement it has been pleaded by OP-1 that complainant did not submit the complete papers as desired/required by TPA for processing the claim of the complainant despite several reminders/queries, it has not been a ground for repudiation of complainant’s claim and therefore, the plea of OPs. 1 and 2 on this score need not be discussed. In all the fairness they were supposed to specify as to what were the documents which were not furnished while sending the letter of repudiation to the complainant.

We also find merit in the submission of Ld. Counsel for complainant that a person having horse shoe kidney cannot be said to be a person suffering from the disease of horse shoe kidney in as much as instead of it being an illness, it is a kind of physique of an individual created by the nature. Complainant has placed on record as Annexure VI renal dynamic scan report to show that his horse shoe kidney is maintaining well preserved functions and non-obstructed outflow tract. Even if for the sake of argument we may assume that a person having a horse shoe kidney can be called to be suffering from a particular disease, OPs. in the first instance have falied to place on record the proposal form obtained from the complainant to show any concealment on his part and then have failed to prove the exclusion clause of pre-existing disease by leading necessary evidence on record that a copy of the terms and conditions were duly sent to the complainant while issuing the mediclaim policy.


In view of what has been discussed above, we find that repudiation of complainant’s claim in the present case amounts to arbitrariness besides deficiency in service on the part of OPs. 1 and 2. We, therefore, direct OPs. 1 and 2 to pay to the complainant mediclaim amount of Rs.15,357/- with an additional amount of Rs.5,000/- as compensation for the harassment caused to him. The liability to pay the aforesaid amount to the complainant by OPs. 1 and 2 would be both joint and several.
OPs. 1 and 2 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.109/2009

Date of Institution 17-4-2009

Date of Decision 13-1-2010

Bihari Lal son of late Sh. Khindu Ram resident of village and Post Office Bhojpur, Tehsil Sundernagar, District Mandi, H.P.

…Complainant.

V/S

Thece Oriental Insuran company Ltd. through Divisional Manager Mandi, District Mandi, H.P.
..Opposite party.

For the complainant Sh. J.S.Chandel Advocate

For the opposite party Sh. S.C.Dwivedi, 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 complainant averred that he is owner of. Indica DLX car Model 2006/1 bearing registration No. HP-31A-1961which was duly insured with the opposite party . During the subsistence of the policy , on 29-11-2007 at about 11.30 AM , the vehicle in question met with an accident with trailer pick up No CH-03P-4335 at Banal Curv ,Tehsil Sujanpur District Hamirpur, H.P. while the same was being driven by one Sh. Hitender Gupta son of Sh. Jaisi Ram and was damaged to a great extent . First Information report No.125/07 dated 29-11-2007 was registered in Police Station ,Sujanpur. The complainant reported the matter to the opposite party immediately and all the relevant documents were supplied. The complainant got the vehicle repaired at M/S Satluj Motors Lunapani by spending Rs.1,28,954/- and apart from this an amount of Rs.5500/- was paid to owner of Recovery van who had brought the vehicle to the workshop. That the insurance claim of the said vehicle was registered by the opposite party but the same was repudiated on 30-4-2008. The complainant served the opposite party with legal notice but no amount has been paid .The opposite party responded to the notice and wrongly stated that that the complainant was on wheel of the vehicle at the time of accident and Sh. Hitender Kumar Gupta was not driving the car . The complainant averred that the car was being driven by Sh. Hitender Kumar Gupta and he had also lodged the first information report . The complainant alleged that the repudiation of the claim is on wrong facts with a view to deprive the complainant of his right of claim of the car and it has committed breach of its obligation to make the payment of the claim which amounts to deficiency in service. With these averments , the complainant had sought a direction to the opposite party to pay the aforesaid amount alongwith interest at the rate of 12 % per annum Apart from this, Rs 50,000/- has also been claimed as compensation besides costs of complaint.



2. The opposite party filed reply wherein it has taken preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable as the claim lodged by the complainant was got investigated and assessed and when the same was not found to be genuine claim then the same was repudiated by the competent authority of the opposite party after due application of mind and in good faith and the decision in this regard was duly communicated to the complainant, that the complainant has committed the breach of the driver’s clause of insurance policy , that the complainant has not come to this Forum with clean hands , that the complex questions of law and facts are involved , therefore, the controversy between the parties can not be resolved in summary manner . On merits , the opposite party has admitted that the car was got insured by the complainant in the sum of Rs. 3,85,000/- for the period from 31-1-2007 to 30-1-2008 subject to limitation , terms exception and conditions or the actual loss suffered which ever is less as per insurance policy Annexure R-1 . It has been admitted that the car in question met with an accident on 29-11-2007 at place Banal and it immediately hired the services of Rajesh Bhandari to conduct spot survey of the vehicle under reference who after conducting spot survey has submitted the Spot survey report Annexure R-2 dated 5-12-2007 to the opposite party. Sh.Rajesh Bhandari has also taken photographs of the vehicle which are Annexure B-1 to B-8. Thereafter it appointed Sh.M.L.Gupta Surveyor cum loss assessor to conduct the survey and assess the loss and extent of damage caused to the vehicle in question and he had submitted the report dated 20-12-2007 Annexure R-3 to the opposite party No.3 alongwith photographs taken by him as Annexure M-1 to M-36 and as per his report the loss sustained by the vehicle is to the tune of Rs.93,547.72 only subject to deposit of salvage , the value of which has been assessed at Rs.1850/-. It has been averred that had the complainant not committed the breach of the policy he would have been paid Rs.93,547.72 paisa on deposit of salvage . It has been denied that Sh. Hitender Gupta was driving the vehicle at the relevant time as Sh.D.P.Sharma Investigator who had conducting investigation has reported vide report Annexure R-4 that vehicle was being driven by the complainant himself and statement of witness Ashok Kumar driver of vehicle whose vehicle strucked with the complainant’ vehicle Annexure R-5 has been filed. The opposite party averred that as per the statement of Sh.Ashok Kumar Sh. Hitender Kumar Gupta had come to the spot after the arrival of the police and the first person to reach the spot was Pradhan , Manoj and he had telephoned the police about the accident and therefore Sh.D.P.Sharma , Investigator was asked to make inquiry from Sh. Manoj who has submitted his supplementary report dated 28-4-2008 ,Annexure R-6. It has been denied that the complainant had spent Rs.5500/- to bring the vehicle to the workshop and in fact as per the insurance policy condition liability of the opposite party for retrieving charges is limited to Rs.1500/- which charges have been included in the loss assessment report dated 20-1202007 Annexure R-3. It has further been averred that the opposite party had appointed Sh.Vishal Kumar Gupta to verify the genuineness of the driving license of the complainant and as per verification report the Annexure R-11 the complainant was holding license to drive HTV valid up to 7-4-2007 and Motor /cycle with gear and also endorsed for LMV Non transport with effect from 31-12-2007 to 7-4-2009 and at the time of accident the complainant was not holding license to drive the category of the vehicle in question which is Non transport and it amounted to the breach of the driver’s clause of the insurance policy. It has further been averred that the police has not made fair investigation . It has been contended that the claim has been rightly repudiated and there is no deficiency in service on its part . The opposite party had prayed for dismissal of the complaint.



3 We have heard ld. counsel for the parties and have carefully gone through the entire case file. Be it stated that the insurance of the vehicle and its accident is not in dispute. The only ground on which the claim of the complainant is repudiated is that Sh. Hitender Kumar Gupta was not driving the vehicle in question and in fact the complainant Sh. Bihari Lal was driving the vehicle at the relevant time and he was not possessing a valid and effective driving license to drive the vehicle in question.

4 Now the first point arises for determination is as to whether the opposite party was justified in repudiating the claim of the complainant on above ground or not. The onus was upon the opposite party to prove that the complainant was driving the vehicle at the time of accident and not Sh. Hitender Kumar . In this respect , the opposite party has placed reliance on the investigation report of Sh.D.P. Sharma dated 11-2-2008 Annexure R-4. As per the opposite party, it had deputed Sh.D.P.Sharma to investigate the genuineness of the claim made by the complainant who conducted investigation and as per his investigation, at the material time the vehicle was being driven by the complainant Sh. Bihari Lal himself as per his report Annexure R-4.According to the opposite party, the investigator had taken statement of one Sh.Ashok Kumar driver whose vehicle was hit by the complainant’s vehicle which is Annexure R-5. According to the opposite party aforesaid Sh.Ashok Kumar had stated that the first person to reach the spot after accident was Pradhan Sh. Manoj Kumar and ,therefore, the Investigator was further deputed by the opposite party to make an inquiry from Sh. Manoj Kumar Pradhan . Thereafter, the investigator had given his supplementary investigation report dated 28-4-2008 Annexure R-6 after recording statement of one Sh. Manoj Kumar Annexure R-7 who was stated to be the Pradhan , Gram Panchayat ,Sujanpur Tihra who also stated before the investigator that at the material time the owner himself was driving the vehicle . According to the opposite party, it deputed Er. Vishal Kumar Gautam to verify the genuineness of the driving license of Sh. Bihari Lal and after verification it had been revealed that the complainant was having driving license to drive HTV valid up to 7-4-2007 and was renewed for LMV non transport w.e.f. 31-12-2007 to 7-4-2009. As per the opposite party Sh. Bihari Lal was driving LMV car and his driving licensed was endorsed to LMV ( non transport) w.e.f. 31-12-2007 after the date of accident whereas the HTV license had expired on 7-4-2007 i.e. much prior to the accident and as such he was not possessing a valid and effective driving license which amounted to breach of the driver’s clause of the insurance policy. The investigation report Annexure R-4 and supplementary investigation report Annexure R-6 placed on record alongwith statements of witnesses purported to be recorded by the investigator i.e. the statement of Sh .Ashok Kumar as Annexure R-5 and statement of Sh. Manoj Kumar Annexure R-7. As per the statement of Sh.Ashok Kumar , at the material time Sh. Hiitender Kumar Gupta was not driving the vehicle and Sh. Bihari Lal was driving the same . As per the statement of Sh. Manoj Kumar Annexure R-7 also at the time of accident the vehicle was being driven by the owner of the car . However, in our opinion, the reports of the investigator Annexure R-4 and Annexure R-6 cannot be relied upon as the same are not supported by any satisfactory evidence on record . Every fact which is alleged in the reports of the investigator has to be proved as a fact on record. The investigation report Annexure R-4 and supplementary report Annexure R-6 unsupported by the affidavits of the persons on the basis of whose statements the reports were prepared cannot be relied upon. The investigator had only recorded the statements of witnesses Annexure R-5 and Annexure R-7 but has failed to procure their affidavits and in the absence of their affidavits , this forum is not satisfied as to whether these statements were actually given by the above named persons .Rather the complainant had filed affidavit of aforesaid Sh.Ashok Kumar son of Sh.Dule Chand as Annexure –A who deposed that at the material time Sh. Hitender Gupta was driving the vehicle of the complainant. The complainant has also filed affidavit of Sh. Hitender Kumar Annexure –C who also deposed that the vehicle was being driven by him at the time of accident . The complainant had placed on record the copy of the first information report No.125/07 dated 29-11-2007 , Police station Sujanpur Annexure –D wherein it has been recorded that at the time of accident the vehicle was being driven by Sh. Hitender Kumar Gupta. The First information report is an authentic document prepared by the Govt. Official in the discharge of his official duty and we have no reason to disbelieve the same in the absence of any satisfactory evidence to the contrary. Therefore, in the absence of any cogent evidence on record, by no stretch of imagination it can be said that the vehicle was being driven by the complainant Sh. Bihari Lal himself and not by Sh. Hitender Kumar Gupta as contended by the opposite party. The opposite party , in our opinion , had failed to establish that at the material time Sh. Bihari Lal complainant was driving the vehicle instead of Sh. Hitender Kumar Gupta. . It is not the case of the opposite party that Sh. Hitender Kumar Gupta was not holding a valid and effective driving license at the material time . Moreover as per verification report of Sh.Vishal Kumar Gautam Annexure R-11 the driving license possessed by the complainant Sh. Bihari Lal is genuine which has been issued by Motor and Licensing Authority, Sundernagar as it has been mentioned in the aforesaid verification report Annexure R-11 that the driving license was valid with effect from 8-4-2004 up to 7-4-2009 for driving non-transport vehicle as per last renewal record Therefore, it would not be improper to conclude that the opposite party had repudiated the claim of the complainant illegally which act on its part amounts to deficiency in providing service.



5 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle . The case of the complainant is that he had spent Rs. 1,28,954/- for the repair of the vehicle in question with respect to damage caused in the accident besides also paid Rs.5500/- as recovery van charges to bring the vehicle from the spot to the workshop. The complainant in support of his claim has placed on record proforma invoice from Satluj Motors to show that a sum of Rs.1,28,954/- was required for repair of the vehicle but the same cannot be relied upon being a photocopy and not supported by any convincing evidence. The complainant has placed on record affidavit of proprietor of Satluj Motors Sh. Narinder Kumar Guleria Annexure -B . However, the same cannot be taken as gospel truth in the absence of any documentary evidence . Neither any job card nor any receipt has been filed by the complainant to prove that a sum of Rs.1,28,954/- was spent by the complainant on account of repair of the vehicle. On the other hand the opposite party has produced in evidence Motor ( Final ) Surveyor report dated 20-12-2007 of Er. M.L. Gupta which is annexure R-3 who assessed the net liability at Rs.93,547/- subject to deposit of salvage , the value of which has been assessed at Rs.1850/-The complainant had not adduced any satisfactory evidence contrary to the report of Surveyor. Moreover the report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons. The Hon’ble National


Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kiran Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor Annexure R-3 and in view of the same , we hold that the liability of the opposite party with respect to the damage caused to the vehicle on repair basis is to the tune Rs.93,547/- subject to deposit of salvage value of which has been assessed at Rs.1850/- .

6 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay to the complainant a sum of Rs.93,547/- subject to deposit of salvage , the value of which has been assessed at Rs.1850/- with interest at the rate of 9% p.a. from the date of filing of the complaint till realization . In addition to this the opposite party shall also pay Rs.5000/- as compensation for harassment and Rs.2000/-as costs of litigation .

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

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

Consumer Complaint No: 122/2008

Date of presentation: 01.08.2008

Date of decision: 08/01/2010

@@@@@@@@@@@@@@@@
Sh. Yoginder Kumar, S/o Sh. Deep Ram Sharma,

R/o Village and P.O. Haripur,

Tehsil and District Solan H.P.
… Complainant Versus

The Oriental Insurance Company Limited,

Branch Office, K. No. 4,

Opposite Anup Service Station Kaithu,

Shimla H.P.
…Opposite Party.

For the complainant: Mr. Vinod Chandel, Advocate.

For the Opposite Party: Mr. B.R. Sharma, 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 registered owner of vehicle Utility jeep bearing registration No.HP-14-7703, which was insured by him with the OP-company, vide Annexure C-1, hence, valid upto 07.06.2006. It is averred that the aforesaid vehicle met with an accident, on, 24.11.2005, during the subsistence of the insurance policy. The factum of having met the vehicle with the accident, was reported to the OP-Company, as well, as to the Police, upon which FIR bearing No.537 dated 24.11.2005, came to be lodged. It is averred that the vehicle was totally damaged in the aforesaid accident. Thereafter, the insurance claim came to be lodged with the OP-Company, who instead of settling it, repudiated the claim, vide letter dated 26.09.2006. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, status of the complainant as a consumer and involvement of intricate question of law and facts. On merits, it is denied that the vehicle was damaged totally, rather, as per the survey report, the net loss was assessed at Rs.52,837/- which was payable subject to the terms and conations of the insurance policy. It is contended that two passengers were travelling in the Jeep at the time of the accident and this fact was confirmed by Shri A.N. Chopra, Investigator. It is denied that the persons travelling in the vehicle, was, the owners of the goods. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

5. The complainant, is, aggrieved by the act of the OP-Company, in repudiating his claim, qua the loss caused to his insured vehicle bearing registration No.HP-14-7703, in an accident, having occurred, on, 24.11.2005, during the subsistence of the insurance policy. The OP-Company, is, seeking to exculpate its liability on the strength that, when the vehicle met with an accident, it was carrying gratuitous passengers, hence, it comprising an infraction of the terms and conditions, of the insurance pooicy, the OP-Company, was well within, its, right to repudiate the claim.

6. The parties do not wrangle over the fact that the vehicle bearing registration No.HP-14-7703, was insured by the complainant with the OP-Company, as, is, revealed from the existence of insurance cover Annexure C-1. It is also not in dispute, interse the parties, that, the vehicle met with an accident, on, 24.11.2005, during the currency of the insurance cover. The reporting of the matter to the OP-Company, as well, as, to the Police, is, not at lis. The only point which requires adjudication by this Forum, is, whether, the OP-Company, has been able to prove the, fact, that, whether their, were two unauthorized passengers travelling in the vehicle, when, it met with an accident.

7. Shri Niaz Mohammad and Shri Prem Chand, were the occupants of the vehicle, when, it, met with an accident. The aforesaid persons were the owners of the goods being carried in the vehicle, as, is, revealed from the existence of Annexures C-13 & C-14, which are the copies of the goods carrier receipt. Even if, it is admitted to be true, that, the accident took place, when the vehicle was returning back, after unloading the vegetables at the market, even, then, their occupation in the vehicle, cannot be said to be comprising an infraction of terms and conditions of the insurance policy, as, their initial occupation, in, the vehicle was, admittedly, in, their capacity as owners of the goods as carried in the vehicle. The test for determination of their capacity and its constituting or not an infringement of the terms of the policy, in, our considered view, was, the capacity acquired, at, the commencement of their journey. Even, otherwise even if, at, the stage of the accident, their, initial capacity as owners of the goods carried in the vehicle, came to be obliterated, 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, they were at the stage of the accident, were purportedly unauthorized passengers traveling, in, the vehicle, 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 travelling 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.

8. Since, it has been construed by us that the act of the OP-company, in repudiating the claim of the complainant, was not legal and valid, hence, a finding has to be rendered by us, as, to, what amount of compensation, the complainant, is, entitled from the OP-company, on account of the damage suffered by his insured vehicle in the accident. The complainant, in his complaint, has asserted that, his, vehicle was totally damaged in the accident, yet, this fact has been denied by the OP-Company, and it has contended, that, the loss has been assessed by the surveyor, so appointed by it, at Rs.52,837/- as, is, evident from the existence of the copy of survey report Annexure R-5. The survey report having remained un-repulsed and un-benumbed, has to be accorded sanctity, in order to assess the loss, suffered by the complainant, in the accident.

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

i) That the OP-Company, shall indemnify the complainant to the extent of Rs.52,837/-

ii) That the aforesaid amount of Rs.52,837/- shall also carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 01.08.2008, till actual payment is made;

iii) That the litigation cost is quantified at Rs.2500/- payable by the OP-Company to the complainant;

iv) 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;

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

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: 166/2007

Date of presentation: 11.06.2007

Date of decision: 06.01.2010

Shri Kewal Ram Thakur, S/o Sh. Hari Ram,

R/o Village Dikhalti, Post Office Dharaich,

Tehsil Theog, District Shimla, Himachal Pradesh.

… Complainant.
Versus
1. The Oriental Insurance Co. Ltd.

SCO No. 10-A, Ist Floor, Sector 7-C, Madhya Marg, Chadigarh-160019, through its Divisional Manager.



…Opposite Party
2. Sh.Narain Singh S/o Sh.Padma, R/o Village Dharaich, Tehsil Theog, District Shimla, H.P.

…Proforma Respondent.

For the complainant: Ms. Reshma Bhatia, Advocate.

For the Opposite Party No.1: Mr. Digvijay Singh Advocate vice

Mr. Sanjay Karol, Advocate.

For the Opposite Party No.2: Mr. Rajan Kohal, Advocate vice

Mr. R.G.Thakur, Advocate.
O R D E R:

Sureshwar Thakur (District Judge) President:-

This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, he is owner of vehicle bearing registration No.HP-63-0438, which was insured by him, with the OP-Company, for a period of one year, commencing from 01.09.2005 to 31.08.2006, for a sum of Rs.2,50,000/-. He further proceeded to aver that, on, 20.06.2006, the aforesaid vehicle met with an accident, and fell into a deep gorge, hence suffered total loss. As usual, the matter was brought to the notice of the OP-Company, as also, to the notice of concerned police. He further avers that, thereafter, insurance claim came to be lodged with the OP-Company, who instead of settling it repudiated vide letter dated 20.02.2007. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its reply to the complaint, besides raising preliminary objections, regarding maintainability of the complaint, contended that, six passengers were travelling in the vehicle against the seating capacity of 2+2 hence, it being infraction of terms and conditions of the insurance policy, the claim was rightly repudiated by the OP-Company. They further contend that on receipt of the intimation regarding loss, the surveyor so appointed by them, had assessed the loss to the tune of Rs.2,50,000/- less excess clause of Rs.1,000/-, on total loss basis, which was payable subject to the terms and conditions of the insurance policy. Hence, it is denied, that, there was any deficiency in service on their part.

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

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

5. The grouse of the complainant, is, that, the insurance claim, so lodged by him, with the OP-Company, qua the loss suffered to the insured vehicle bearing registration No.HP-63-0438, was illegally and arbitrarily, repudiated by the OP-Company, vide communication dated 20.02.2007, which, is, being sought to be struck down, thereby praying for indemnification to him, by the OP, the sum, for which the vehicle was insured. The OP-Company, is, seeking to exculpate their liability, to, pay the sum, on, the strength, that, the vehicle when, it, met with an accident, was carrying unauthorized passengers, hence, their being carried in it at the relevant time, occasioned a breach of the terms and conditions of the insurance policy, therefore, it is contended, that, the repudiation of the claim, is, tenable.

6. Now, adverting to the efficacy of the contention, of, the complainant that, the persons travelling in the truck, at the time, when it met with an accident, were in fact, the owners of the vegetables being carried in the it, or they were persons, in, contradiction to the contents, of, the FIR, collecting stones, at the spot, where the insured vehicle fell. However, when, the, complainant himself, in, the claim form has disclosed the names of six persons travelling in the vehicle, at the time when it met with an accident and his not adducing any evidence, that, the reflection in the claim form of the aforesaid persons travelling in the ill fated vehicle, was, in the capacity of they being owners of goods being carried, in, the, goods vehicle, as, it was, effaces, the probative value of the affidavits, of, the said persons while, reciting in them, the, fact that, they were collecting stones, at, the site of the accident. Resultantly, the natural sequitor, is, that, the affidavits so brought on record by the complainant, of the aforesaid persons, stands falsified by his own admission in the claim form, which has not come to be denied by the complainant to be not filled by him.

7. The OP-Company, in the instant case has been able to adduce cogent, convincing and apposite evidence to prove the fact that unauthorized persons were travelling in the vehicle, at the time, when it met with accident, hence, it comprises an infraction of the terms and conditions of the insurance policy, the repudiation, of, the claim of the complainant, by the OP-Company, hence, was legal and justified, which cannot construed to be a deficiency in service and an unfair trade practice on their part.

8. Consequently, the complaint merits fails and we order its dismissal, leaving the parties to bear their own 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.

Consumer Complaint No:156/2007

Date of presentation: 29.05.2007

Date of decision: 06.01.2010

@@@@@@@@@@@@@@@@Shri Rajesh Verma, S/o late Sh. Om Prakash,

Prop. M/s Saransh Communication, Naya Bazar, V.P.O:Theog, Tehsil:Theog, Dstrict Shimla.

… Complainant.
Versus
The Oriental Insurance Co. Ltd.

Through its Divisional Manager,

Divisional Office, Mythe Estate Kaithu, Shimla-171003.

…Opposite Party.
For the complainant: Mr. S. Bhushan, Advocate.
For the Opposite Party: Ms. Reshma Advocate vice

Ms. Rajvinder Sandhu, Advocate.
O R D E R:
Sureshwar Thakur (District Judge) President:-

This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, he was Proprietor of a shop being run by him under the name and style of ‘M/S Saransh Communication’s’ at, Theog, which was insured by him, with the OP-Company, for a sum of Rs.10,20,400/-, for the period 18.03.2005 to 17.03.2006. It is averred that on, 20.03.2005, the aforesaid shop gutted into a fire. The matter was brought to the notice of the OP-company, as well, as to the Police, upon which FIR was also lodged with the concerned Police Station. Thereafter, the insurance claim to the extent of Rs.1,09,150/- came to be lodged with the OP-company, who instead of settling it, repudiated vide letter dated 10.11.2005. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its reply to the complaint, besides raising preliminary objections, regarding maintainability of the complaint, contended that the cover note was obtained by the complainant by misrepresentation, hence, the claim was rightly repudiated. It is denied that the FIR was lodged with the police authority. It is specifically denied that the complainant suffered loss of Rs.1,09,150/-, rather the surveyor so appointed by them, assessed the loss at, Rs.37,000/-. Hence, it is denied, that, there was any deficiency in service on their part.

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

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

5. The parties do not wrangle over the fact that, the complainant had purchased an insurance cover from the OP-Company, for an amount of Rs.10,20,400/- thereby covering the risks, qua the articles as detailed in it, as is evident from the existence of Annexure C-1. The factum of fire having taken place on the night of 20th March, 2005, is, also, not, at contest interse the parties. The fact of reporting of the matter to the OP-Company, and also to the Police, are, also not at lis interse the parties, as is revealed by the existence of Annexure C-2, & Annexure C-3. What is, in dispute, is, the fact whether the insurance cover note, so obtained by the complainant from the OP-Company, was obtained by him under misrepresentation of facts or not.

6. Though, it has been vehemently contended on behalf of the OP-Company, that the claim so lodged by the complainant, is, not indemnifiable by them, inasmuch, as, the complainant had obtained the insurance cover, by misrepresentation of the fact, yet, the said averment has remained in the realm of the reply of the OP-Company, as their exists no material on record to substantiate the said fact, inasmuch, as, no pleading of the machination employed by the complainant to obtain the insurance cover nor apposite evidence has been adduced. In our considered view, the insurance cover, is, issued only after the physical verification of the stock lying in the business premises. Therefore, in the instant case, obviously only on the business premises of the complainant being inspected by the agent of the OP-Company, did, the stock lying in the business premises was got insured, resultantly in the insurance cover being issued, after defrayment of the premium to it. Therefore, in the absence of cogent, convincing and apposite evidence having been adduced by the OP-Company, it, cannot, be, hence, contused that, the insurance cover was obtained by the complainant by misrepresentation of facts.

7. During the currency of the insurance cover, as purchased by the complainant, covering the risk, as envisaged in the insurance cover, Annexure C-1, the risk/event contemplated in the cover, occurred in the business premises of the complainant, on, the 20th March, 2005. The complainant while asserting, that, this Forum direct the OP-Company to pay compensation to the extent, quantified in the complaint, has, depended upon Annexure C-4, which is the copy of the claim bill so lodged by him with the OP-Company, quantifying, therein, the loss suffered to stock at, Rs.1,09,150/-. On the other hand, the OP-Company, in, its, reply has, contended that the surveyor so appointed by them, has assessed the loss at, Rs.37,000/- and have also filed the affidavit of Shri Rajneesh Kumar Dhiman, Surveyor and Loss Assessor, yet, the OP-Company, has not placed on record any survey report in proof thereof. For lack of production of survey report, on the part of the OP-Company, we, are unable to render a finding that the loss as assessed at Rs.37,000/- by the surveyor and loss assessor, in view of the existence of claim bill, Annexure C-4, having been placed on record by the complainant, is, to be construed to be carrying any probative value. With Annexure C-4, having remained un-repulsed and un-benumbed on behalf of the OP-Company, we, have, to, accord, sanctity to it, in assessing the loss suffered by the complainant, in the fire, having taken place, during the existence of the insurance cover. Obviously, the complaint, is, liable to be allowed.

8. As a sequitor to above, we, allow this complaint and direct the OP-Company, to indemnify the complainant to the extent of Rs.1,09,150/- along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 29.05.2007, till making entire payment of the sum, along with litigation cost, which is quantified at Rs.2500/-. This order shall be complied with, by the OP-Company, within a period of forty five days, after the date of receipt of copy of this order, failing which it shall also be liable to pay punitive damages of Rs.20,000/- to the complainant. In the above terms, the complaint, stands disposed of.

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

Consumer Complaint No: 141/2005

Date of presentation: 13.06.2005

Date of decision: 06.01.2010

Shri Pushpinder Kumar S/O Shri S.L.Bamba,

R/O Surya Hotel, Cart Road, Shimla, H.P.

… Complainant.
Versus

Oriental Insurance Company Ltd.,

Mythe Estate, Kaithu, Shimla-3,

Through its Divisional Manager.

…Opposite Parties

For the complainant: Mr. Peeyush Verma, Advocate.

For the Opposite Party: Mr. J.S. Bagga, Advocate.

O R DER

Dr. Karuna Machhan, Member:-This complaint has been filed by Shri Pushpinder Kumar, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is registered owner of Hyundai Santro vehicle bearing registration No.HP-03A-0653, which was insured, by him, with the OP-Company, for a period of one year commencing from 29.10.2004 to 28.10.2005, for Rs.1,80,000/-. He further avers that the aforesaid vehicle, unfortunately, met with an accident, on, 25.12.2004, during the currency of the insurance policy and suffered extensive damage. It is further averred that, the factum of the vehicle, having met, with an accident, was reported to the OP-Company, Thereafter, after completion of all the codal formalities, he, lodged a insurance claim with the OP-Company, who instead of settling it, repudiated on the false and untenable ground of invalidity of the driving licence. Hence, it is averred that, there is apparent deficiency in service on the part of the OPs-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, and breach of terms and conditions of the insurance policy. On merits, it is contended that at the time of accident, the driver of the afflicted vehicle was not having valid and effective driving licence, hence, the complainant was asked to clarify the position regarding the invalidity of the driving licence possessed by its holder and since the complainant failed to do the needful, as such the claim was rightly repudiated. Hence, the action of the OP-Company, in closing the claim, of the complainant, cannot be held to be unlawful. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

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

5. Undisputedly, the vehicle bearing registration No.HP-03A-0653, was duly insured with the OP-Company, by the complainant, for an amount of Rs.1,80,000/- on I.D.V., as is revealed by the existence of insurance cover brought on record by the OP-Company. It is also not in dispute between the parties, that the afflicted vehicle met with an accident on 25.12.2004, when the insurance cover, was in force. The factum of reporting of the matter to the OP-Company, and appointment of surveyor but it, are also not in variance between the parties. However, the OP-Company has repudiated the claim of the complainant, on the strength of invalidity of the driving licence, being possessed by its driver, at the relevant time. Therefore, it is to be determined by us, whether the OP-Company, has been able to prove the fact that the driver of the afflicted vehicle, was not having a valid and effective driving licence to drive the vehicle, when it met with an accident, or not.

6. The OP-Company, has been able to prove the fact that the driver who was driving the afflicted vehicle, at the time, when it met with an accident, was not having a valid and effective driving licence, inasmuch, as the driving licence possessed by the driver, was valid upto 03.09.2004, whereas, the accident in the instant case took place, on, 25.12.2004, hence, with the driving licence having been expired, prior to the date of accident, the action of the OP-Company, in repudiating the claim of the complainant, was legal and valid. This fact is borne out from the certificate issued by the learned Chief Judicial Magistrate, Shimla, detailing therein that, the licence baring No.1989/Sml/2000, issued on 04.09.1999 for LMV, which was valid upto 03.09.2004, has been retained in the court in case No.65/2 of 2002. Therefore, we, have no hesitation in concluding that action of the OP-Company, in repudiating the claim of the complainant was legal and justified, as at the relevant time, the driver did not possess a valid and effective driving licence.

7. As a sequel to the above, we find no merit, in this complaint and the complaint, is, liable to be dismissed, hence, we order accordingly, leaving the parties, to bear their own costs.

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.

100.
NO. 332/12.10.2009
DECIDED ON :7.1.2010
1.
Rajinder Singh aged 40 years S/o Sh. Baldev Singh
2.
Binder Singh aged 37 years S/o Baldev Singh
both resident of Ward No. 12, Malout, District Mukatsar (Punjab).
......... Complainants
versus
The Oriental Insurance Company Ltd., Divisional Office, Chandigarh Road, Hoshiarpur, through is Divisional Manager.
......... Opposite Party

Complaint u/s 12 of the Consumer Protection Act, 1986.

Quorum: Sh. P.D. Goel, President,

Sh. A.S. Jauhar, Member,

Mrs. Vandna Chowdhary, Member.


Present: Sh. Parmjit Singh Nayyer, counsel for the complainants.

Sh. Y.P. Piplani, counsel for the opposite party.


PER P.D. GOEL, PRESIDENT:


1.

The complainants namely Rajinder Singh and Binder Singh have filed the present joint complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended up to date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the complainants are the registered owners of Truck No. RJ-13-IG-0717 bearing Engine No. 352759 Chassis No. 129306.
2.

It is further the case of the complainants that they got the said truck comprehensively insured with opposite party for a sum of Rs. 7,50,000/- for the period 16.7.2007 to 15.7.2008 and paid a sum of Rs. 17,137/- as premium and Rs. 2,117/- as service tax. The opposite party issued Policy No. 2842 to the complainants and undertook to indemnify all types of losses including own damage. It is further the case of the complainants that the said truck met with an accident on 1.9.2008 in the area of village 15-SGR, PS Suratgarh (Rajasthan), when it was being driven by Jinder Singh. That the said truck struck against a tree and caught fire, thus got completely burnt. FIR No. 41 dated 1.9.2009 u/S 279, 304-A, IPC was registered at PS Suratgarh (Rajasthan) regarding the accident.
3.

It is further the allegation of the complainants that intimation regarding the accident and damage was given by Sh. Baljinder Singh, attorney to the concerned office of opposite party at Shri Ganganagar, who appointed Sh. Umesh Sidana Surveyor to conduct spot survey. The Surveyor submitted the report dated 12.9.2008. The complainant paid a sum of Rs. 1660/- out of their own pocket to the said surveyor against bill dated 12.9.2008 to the opposite party. That the said truck was finally surveyed by Sh. Arun Kumar, Surveyor of Jalandhar, who submitted his report dated 13.10.2008 to the opposite party and declared the truck of the complainants as total loss. That said Arun Kumar, surveyor was to get his fee from the opposite party, so in order to please them he assessed the value of the salvage of the truck of the complainants as Rs. 1,75,000/- and recommended the payment of balance amount of Rs. 5,25,000/- to the complainants. The complainants never agreed to receive a sum of Rs. 5,25,000/- instead of Rs. 5,75,000/- or gave anything in writing.
4.

The opposite party instead of settling the claim of the complainants repudiated the claim vide their letter dated 15.4.2009 on the ground that they have already sold their vehicle to one Baljinder Singh S/o Puran Singh, thus they have got no insurable interest against the opposite party, which is illegal as they never sold their ruck to said Baljinder Singh and has only appointed him as their attorney vide Power of Attorney dated 11.11.2006, hence this complaint.
5.

The opposite party filed the reply. The preliminary objection with regard to maintainability was raised. On merits, the claim put forth by the complainants has been denied. It is replied that the vehicle No. RJ13-IG-0717 has already been sold by the complainants to Baljinder Singh S/o Puran Singh, opposite Hardeep Filling Station,Mallot as per their own affidavit dated 11.11.2006 duly attested by the Notary Public of Mallot. It is admitted that the vehicle in question was insured with the replying OP, which met with an accident. It is further replied that the complainants had sold the said vehicle as per their affidavit dated 11.11.2006 and general power of attorney dated 11.11.2006 executed in favour of Baljinder Singh, thus they had no right to receive the compensation from the opposite party. The claim has been rightly repudiated. The complainants gave another affidavit dated 5.9.2009, which is contradictory to their earlier affidavit and the same has been filed in connivance with Baljinder Singh so as to receive compensation from the opposite party.
6.

In order to prove the case, the complainants tendered in evidence affidavit of Binder Singh, complainant – Ex. C-1, documents – Mark C-2 to Mark C-12, affidavit of Baljinder Singh – Ex. C-13 and closed the evidence.
7.

In rebuttal, the opposite party tendered in evidence affidavit of Sh. Ajay Garg, Sr. Divisional Manager – Ex. R-1, power of attorney – Ex. R-2, affidavit of the complainants – Ex. R-3 and closed the evidence on behalf of the opposite party.
8.

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

The OP repudiated the claim vide repudiation letter Mark C-12 on the ground that the complainants had sold the vehicle in question to Balwinder Singh,thus, they have no right to receive the claim amount. To prove the said defence, OP has produced on record the copy of affidavit of Rajinder Singh-one of the complainants Ex.R-3, wherein it has been stated that they have sold the vehicle bearing registration no. RJ-13-IG-0717 to Sh Baljinder Singh. On the contrary, the complainant has placed on record the affidavit of Baljinder Singh Ex.C-13, wherein it has been stated that he has not purchased the said vehicle from the complainants. He has further deposed that he was only the attorney of the complainants. Since, Sh Baljinder Singh has sworn the affidavit that he has not purchased the said vehicle from the complainants , therefore, the affidavit filed by one of the complainants stands rebutted. Thus, the OP was not justified in repudiating the claim.
10.

The complainants have produced on record the RC Mark C-2 and its close scrutiny makes it clear that both the complainants are the registered owners of vehicle no. RJ-13-IG-0717.It is also an admitted fact that the vehicle was got insured by the complainants with the OP vide insurance policy Mark C-4.
11.

The complainants have produced on record the report of the surveyor Mark C-11 qua which the surveyor declared the truck as total loss and assessed the value of salvage at Rs.1,75,000/-. The vehicle was got insured for Rs.7,50,000/-, therefore, after deducting the salvage value of Rs.1,75,000/- from Rs.7,50,000/-, the complainants are entitled to Rs.5,75,000/-. The complainants have also proved on record the payment of Rs.1660/- given to the surveyor vide bill Mark C-10.
12.

As a result of the above discussion, the complaint is allowed and the OP is directed to pay the claim amount of Rs.5,75,000/- plus/ alongwith Rs.1660/- with interest @ 9% per annum from the date of filing the complaint i.e.12.10.2009 till realization. The litigation expenses are assessed at Rs.1000/- to be paid by the OP to the complainants. The order be complied within one month from the receipt of copy of the order.

100.
NO. 289/1.9.2009
Decided on :06.01.2010

Jagbir Singh Bains son of Sh. Umro Singh Bains, presently resident of VPO: Mahilpur, Police Station, Mahilpur, District Hoshiarpur.


........ Complainant

versus


1.

Oriental Insurance Company, Improvement Trust, SCO No. 18-19, Sant Longowal Nagar, Hoshiarpur (Punjab), through its Branch Manager.
2.

Oriental Insurance Company, Amardeep Building, 32, GT Road, Jalandhar (Punjab) through its Sr. Divisional Manager.
3.

M/s. Bhagat Foard, Dhanuwali Railway Crossing, Jalandhar Phagwara Highway, G.T. Road, Jalandhar-144010, through its Manager/Prop./Partner/M.D.


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


Complaint u/S 12 of the Consumer Protection Act, 1986.


Quorum : Sh. P.D. Goel, President,

Sh. A.S. Jauhar, Member,

Mrs. Vandna Chowdhary, Member.


Present : Sh. Raghav Sharma, Counsel for the complainant.

Sh. Y.P. Piplani, Counsel for the O.Ps. No. 1 and 2.

Opposite Party No. 3 – ex-parte.


PER P.D. GOEL, PRESIDENT:


1.

The complainant namely Jagbir Singh has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. In short, the facts of the case are that the complainant is the owner of vehicle bearing registration No. PB-07-R-0777. The complainant purchased the said vehicle from Opposite Party No. 3. It is the case of the complainant that the said vehicle is insured with opposite parties No. 1 and 2 for the period 24.1.2009 to 23.1.2010.
2.

It is further the case of the complainant that on 12.6.2009, he was on way from Amritsar, and when, the vehicle reached in the area of Modern Dhaba at Jandiala, the said car met with an accident with Tralla (Big Truck) bearing registration No. HR-38-L-25-7 . The car of the complainant got damaged. The matter was reported to police of Jandiala Police Chowki, Shahri Mandi.
3.

It is further the case of the complainant that the compromise was arrived at with the intervention of police on 14.6.2009. The complainant informed O.Ps No. 1 and 2, with regard to the accident of the vehicle, who in turn deputed the surveyor to visit the spot and inspect the vehicle. The surveyor told the complainant to send the vehicle to company's workshop for its repair and also assured that the amount spent on the repair shall be paid. The complainant sent the vehicle for repair to OP No. 3, where the surveyor inspected the vehicle. The surveyor asked the complainant to provide DL, insurance policy, RC and copy of compromise. The complainant provided all the documents to the surveyor.
4.

It is further the case of the complainant that he received a telephone call from OP No. 3 on 30.7.2009 that the vehicle is ready for delivery. The complainant informed OP No. 1, who in turn, told that on 3.8.2009 the officials of the insurance company will also come present and will pay the repair amount.
5.

It is lastly averred that the opposite parties No. 1 and 2 have failed to settle the claim and OP No. 3 also failed to give delivery of the vehicle. The complainant was asked by OP No. 3 to pay Rs. 2,10,000/- as cost of parts and repair of the vehicle. The complainant approached OP No. 1 several times with the request to settle the claim, but of no consequences, hence this complaint.
6.

The opposite parties No. 1 and 2 filed the joint reply. The preliminary objection that the complaint is pre-mature was raised. On merits, the claim put forth by the complainant has been denied. It is replied that the replying opposite parties have not declined the claim of the complainant, as the necessary formalities vis-a-vis verification of driving licence etc., are in process. The report regarding the accident was received by the replying opposite parties and a preliminary survey was got done by Er. Pankaj Kumar, surveyor of the replying opposite parties on 15.7.2009 and thereafter, the detailed survey was to be conducted. The detailed survey was conducted by Sh. Vikas Sikka, surveyor, who submitted his report dated 28.7.2009 and assessed the loss to the tune of Rs. 73,499.55. The surveyor also submitted his report dated 10.8.2009 after re-inspection of the car in question. Since 10.8.2009, the complainant is in possession of the said car. The driving licence of the car is being verified. As and when, the driving licence is verified and the same is found to be genuine, the amount of compensation assessed by the surveyor shall be paid to him without any delay. The claim of the complainant could be settled only after the receipt of the final report dated 10.8.2009 submitted by Sh. Vikas Sikka, surveyor of the company and after verification of the genuineness of driving licence of the complainant. The lapses, if any, in delivery of the car lies with OP No. 3.
7.

The OP No. 3 filed a separate reply. The preliminary objections vis-a-vis maintainability and cause of action were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the dispute is between opposite parties No. 1 and 2 and the replying OP has got nothing to do with the subject matter of this complaint. The answering OP is only concerned with the amount of Rs.2,08,356/- on account of repair of the vehicle. It is admitted that the vehicle was sent for repair to the workshop of replying OP and thereafter, the repair was carried out. The OP No. 3 has nothing to do with the settlement of the claim. The complainant was requested to take the delivery of the vehicle after making payment of parts and repair.
8.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, passport copy – Mark C-2 (2 pages), DL of complainant – Mark C-3, RC – Mark C-4, insurance policy – Mark C-5, DDR – Ex. C-6, taxi receipts dated 20.6.2009, 5.7.2009 and 1.8.2009 – Ex. C-7 to Ex. C-9, affidavit of Parveen Kumar – Ex. C-10 and closed the evidence.
9.

In rebuttal, the opposite parties No. 1 and 2 tendered in evidence affidavit of Tarsem Kumar – Ex. OP-7, survey reports dated 10.8.2009, 28.7.2009 and 15.7.2009 – Ex. OP-8 to Ex. OP-10, estimate dated 24.6.2009 – Ex. OP-11 (2 sheets), affidavit of Ajay Garg – Ex. OP-12, affidavit of Vikas Sikka – Ex. OP-13 and closed the evidence on behalf of opposite parties No. 1 and 2. The opposite party No. 3 tendered in evidence affidavit of Jagbir Singh – Ex. OP-1, authority letter – Mark OP-2, photocopies of the bills – Mark OP-3 to Mark OP-6 and closed the evidence on behalf of opposite party No. 3.
10.

The other facts are admitted. The only dispute between the parties is with regard to the payment of damages/compensation. The complainant has produced on record the Estimate dated 24.6.2009 for Rs. 1,13,811/- – Ex. OP-11 prepared by A.B. Motors Pvt. Ltd., Jalandhar. Admittedly, the complainant has not produced on record the bills or receipts to prove the payment of Rs. 1,13,811/- on account of repair of vehicle No. PB-07-R-0777. On the contrary, the opposite parties No. 1 and 2 – insurance company have produced on record the final survey report dated 28.7.2009 of Vikas Sikka , Engineer, Surveyor and Loss Assessor qua which he has recommended the nett loss to be Rs. 73,499.55. Since the complainant has not produced on record the bills and receipts and have only produced the estimate – Ex. OP-11 of the amount incurred on the repair of the vehicle, therefore, the report of the surveyor -Ex. OP-9 is to be accepted and the estimate – Ex. OP-11 stands rebutted, as the surveyor is an expert and also an independent person to assess the damage caused to the vehicle of the complainant. Moreso, the estimate – Ex. OP-11 cannot be the substitute of the bill and receipt. Thus, we are of the opinion that the claim of the complainant can be allowed on the basis of the survey report – Ex.OP-9. Since the opposite parties No. 1 and 2 have failed to pay Rs. 73,499.55 to the complainant, which amounts to deficiency in service on their part.
11.

As a result of the above discussion, the complaint is accepted and the opposite parties No. 1 and 2 are directed to pay Rs.73,499.55 to the complainant (subject to deposit of salvage by the complainant) with interest @ 9% per annum from the date of filing of the complaint i.e. 1.9.2009 till realization alongwith litigation expenses of Rs. 1,000/- within one month. It is made clear that in case the complainant does not deposit the salvage, the opposite parties No. 1 and 2 are at liberty to deduct the salvage value of Rs.2,000/- (as assessed by the surveyor) out of Rs.73,499.55. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

C.C.No:97/2008
BETWEEN:
G. Punnaiah,

S/o Purnaiah,

Subbaiah Thota,

Chilakaluripet.

... Complainant.

Vs.

The Branch Manager,

The Oriental Insurance Co., Ltd.,

6-139-1, 1st floor,

Chirala Road,

Chilakaluripet. …Opposite party

COUNSEL FOR COMPLAINANT : SRI G. SRIKANTH,

ADVOCATE, ONGOLE.



COUNSEL FOR OPPOSITE PARTY : SRI I. VENKATESWARLU,

ADVOCATE, ONGOLE.


This complaint is coming on 07.01.2010 for final hearing before us and having stood over this day for consideration this Forum delivered the following:

ORDER:

1. This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 against the opposite party.



2. The averments in the complaint are as follows:- The complainant is the owner of Maruti Omni vehicle bearing No. AP 10/M 4330 and the same was insured with the opposite party. On 21.02.2007, the vehicle met with an accident and a case in crime no.9/2007 under section 304-A of IPC was registered at Medarametla Police Station. After the accident the complainant informed the opposite party about the accident and the surveyor appointed by the opposite party visited the spot and took photographs at the accident spot. Later the complainant submitted required documents before the opposite party. As per the instructions of the officials of the opposite party, the complainant got the vehicle repaired by spending Rs.70,000/-. Later in spite of repeated demands the opposite party fail to settle the claim. Hence, the complaint.



3. The opposite party filed its counter contending as follows:- The opposite party took all necessary steps for finalizing the claim of the complainant. During the claim enquiry the complainant stated that his son Sri Gunji Srinivasa Rao who was not having driving license was driving the vehicle at the time of accident and the person who was produced by him before the police is not the driver of the vehicle. From his statement it is clear that the complainant violated the terms and conditions of the policy. Therefore the opposite party rightly repudiated the claim of the complainant and intimated the same to the complainant by way of a letter dated 10.04.2007. There is no deficiency in service on the part of the opposite party and the opposite party prays the forum to dismiss the complaint.



4. On behalf of the complainant Ex.A1 to A5 were marked. Ex.A1 is the Certificate-Cum-Policy-Schedule relating to G. Punnaiah. Ex.A2 is the Legal notice to the opposite party by the complainant dated 10.03.2008. Ex.A3 is the FIR report dated 21.02.2007 issued by S.I. of Madermatla P.S. Ex.A4 is the Driving License of Chinnaiah. Ex.A5 is the bunch of bills for vehicle repairs.



5. On behalf of the opposite party Ex.B1 and B2 were marked. Ex.B1 is the letter dated 13.03.2007 to the opposite party by the complainant. Ex.B2 is the Surveyor and Loss Assessor report dated 22.03.2007.



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



7. The case of the complainant is that he is the owner of Maruti Omni vehicle bearing No. AP 10/M 4330 and the same was insured with the opposite party. On 21.02.2007 the said vehicle met with an accident within Medarmetla Police Station limits. Causing damage to the vehicle and the same was informed to the opposite party and the opposite party appointed a surveyor to assess the loss. The complainant repaired the vehicle by incurring Rs.70,000/- and the opposite party fail to settle the claim and having vexed with the attitude of the opposite party he filed the present complaint.



8. The opposite party repudiated the claim on the sole ground that at the time of accident complainant’s son Srinivasa Rao, who was not having valid driving license was driving the vehicle and caused the accident. Thereafter, the complainant produced another person by name Chinnaiah who is having valid driving license as driver of the vehicle before the police to save his son and police filed charge sheet against Chinnaiah. It is the specific case of the opposite party that the complainant violated the terms and conditions of the policy by allowing a person who is not having valid driving license to drive the vehicle and the claim was rightly repudiated by the opposite party. In support of their contention the opposite party produced the letter marked as Ex.B1 alleged to have written by the complainant. The complainant is denying its contents and excution. In such circumstances the burden is upon the opposite party to prove that Ex.B1 was executed by the complainant. According to the opposite party the complainant has given such statement before the surveyor appointed by the opposite party. But the opposite party fail to prove the letter through the surveyor. Even the affidavit of the surveyor is not filed to prove the letter. Police filed charge sheet against Chennaiah who is having driving license. Therefore the opposite party is liable to settle the claim of the complainant.


9. The complainant stated that he spent Rs.70,000/- for repairing the vehicle. He produced certain bills before the forum and they are marked as Ex.A5. But they are not proved by the complainant by filing the affidavits of the concerned persons. The opposite party appointed a surveyor to assess the loss. The surveyor assessed the loss as Rs.21,175/- since it is reasonable, same can be accepted.

10. In the result, petition is allowed in part directing the opposite party to pay Rs.21,175/- to the complainant together with interest at 9% P.a. from the date of order till realization and also to pay Rs.1,000/- to the costs of litigation to the complainant.

CONSUMER COMPLAINT No. 113 / 2009

Y. Suresh, S/o Obulesu, aged about 30 years,

Residing at Obulareddypalli, Veerapunayunipalli Mandal,

Kadapa Dist. ….. Complainant.



Vs.

The Oriental Insurance Co. Ltd., Rep. by its

Branch Manager, Branch Office, Dwaraka Complex,

Opp. District Court, Kadapa. ….. Respondents.

This complaint coming on this day for final hearing on 20-1-2010 in the presence of Sri V. Eswar Reddy, Advocate for complainant and Sri D. Lakshminarayana, Advocate for respondent and upon perusing the material papers on record, the Forum made the following:-

O R D E R

(Per Sri S.A. Khader Bahsa, Member),



1. Complaint filed under section 12 & 14 R/w sec. 2 (1) of the Consumer Protection Act 1986.



2. The brief facts of the complaint are as follows:- The complainant is the owner of auto bearing No. AP 0W : 4442 and he insured his auto on 21-4-2008 with the respondent by paying premium of Rs. 3,866/- and the respondent issued policy cover note bearing No. 663833 to the complainant. The said policy covered the risk for the auto damage caused in accident and cover the risk of the third party passengers. The insurance policy is inforce from 21-4-2008 to 20-4-2009. On 16-3-2009 the complainant along with two passengers proceeded in his auto from Vempally to Kadapa driven by its driver and he drove the vehicle in a rash and negligent manner, as a result the auto hit the culvert at about 6.00 a.m as a result the auto was completely damaged and one passenger sustained grievous injuries. The accident took place due to rash and negligent driving of the driver of the auto in question, one passenger by name T. Vijaya Kumar gave a report against the auto driver and Sub-Inspector of police, Pendlimarry station registered a case in Cr. No. 43/2009 against the auto driver and also filed charge sheet against the auto driver before II A.D.M Court, Kadapa. As per the conditions of the policy the risk cover to the auto damages, passengers and third parties. The complainant auto was involved in an accident on 16-3-2009 at 6.00 a.m and the auto was completely damaged and one passenger sustained injuries. The complainant intimated the same to the respondent company and the authorities of the respondent immediately visited the place of incident, took the photographs of the damaged auto and ascertained the damages. The policy was inforce at the time of accident. As per the instructions of the respondent company authorities the complainant took the auto for repairs to Zakeer Hussain, tinkering works and Chand Motors works, Kadapa. The complainant purchased spare parts from Sri Durga Automobile, Kadapa. The complainant spent an amount of Rs. 18,784/- towards the repair charges and spare parts and paid by him. He produced the auto repairs and spare parts bills, criminal records and requested the respondent to settle the auto damages cost of Rs. 18,784/-. But the respondent not settled the claim. The respondent repudiated the auto damages caused amount stating that “due to the auto driver is not having effective driving license to driver passengers auto rickshaw at the time of accident” At the time of accident the driver of the auto having effective and valid driving license, but the respondent made a false allegations and the same was repudiated on 12-8-2009. The complainant kept the auto in the workshop for a period of 20 days due to which he sustained a loss of Rs. 10,000/-. The respondent has not paid any amount to the complainant till today and the claim was repudiated. Therefore, the complainant filed this complaint requesting this forum to direct the respondent 1) to pay auto repairing bills amount of Rs. 18,784/- and non-running of the auto loss amount of Rs. 10,000/- totaling Rs. 28,784/- with interest @ 24% p.a. from the date of bills amount, 2) to pay a sum of Rs. 5,000/- towards mental agony and 3) to pay Rs. 3,000/- towards costs of the complaint.



3. The respondent filed a counter stating that the complaint is put to strict proof of all the allegations made in this complaint except those which are specifically admitted herein the outset as the petitioner is not entitled for the relief sought for the petition as the repudiation of the claim by the respondent company was based on sound principles of law and supported by valid evidence. The alleged accident on 16-3-2009 was due to rash and negligent driving of the driver, admittedly FIR and after due investigation police filed charge sheet against the said driver. It is a clear case that the driving of the petitioner has possessed AR – non – transport driving license only. The auto is a passenger carrying vehicle which requires a transport driving license. The policy issued by the respondent company is meant for passengers carrying auto rickshaw. Even as per R.C. permit, F.C. auto is a passenger carrying vehicle and the driver should possesses auto rickshaw transport endorsement, with badge number to drive the subject vehicle. It is further stated that the driver of the petitioner is not duly qualified driver to drive a passenger carrying auto rickshaw and due to his fault and inefficiency the accident occurred. The law is settled in this regard that when driver of the vehicle did not possess a valid driving license, the owner of the vehicle cannot claim any relief’s under C.P. Act also. The repudiation of the O.D. claim of the petitioner by the respondent company through their letter dt. 12-8-2009 is only on the strength of recognized principles of law and as such, it I doesn’t amount any deficiency in service as alleged by the petitioner. However, the respondent is not admitted the genuineness of the bills filed by the petitioner and the said bills shall be proved in accordance with the law. The claim of the petitioner for Rs. 10,000/- alleged loss caused during the period of repairs is also not maintainable under C.P. Act. As per surveyors report the actual loss if any is restricted to Rs. 14,811/- only. There are no bonafidies in the complaint as such the respondent requested to dismiss the complaint with costs in the interest of justice.



4. On the basis of the above pleadings the following points are settled for determination.

i. Whether the complainant is entitled to the relief as prayed for?

ii. To what relief?



5. On behalf of the complainant Ex. A1 to A7 were marked and on behalf of the respondent Ex. B1 to B5 were marked. Oral arguments were heard from both sides.



6. Point No. 1 Ex. A1 is the Xerox copy of FIR in Cr. No. 43/2009 U/s 337 IPC, dt. 17-3-2009 of Pendlimarry police station. Ex. A2 is the Xerox copy of Charge sheet in Cr. No. 43/2009 U/s 338 of I.P.C of pendlimarry police station. Ex. A3 is the Xerox copy of Registration Certificate of auto bearing No. A.P 04 W ; 4442. Ex. A4 is the Xerox coy of motor vehicle insurance cover note No. 663838. Ex. A5 is the Xerox copy of auto driving license. Ex. A6 is the Xerox copy of repudiation dt. 12-8-2009. Ex. A7 is the bunch of bills of 13 receipts amounting to Rs. 18,784/-. Ex. B1 is the Xerox copy of driving license in the name of Venkatasiva Reddy. Ex. B2 is the Xerox coy of Registration certificate of the auto bearing No. AP 04 W : 4442 in the name of Y. Suresh. Ex. B3 is the Xerox copy of permit of the auto bearing No. AP 04 W : 4442 in the name of Y. Suresh. Ex. B4 is the true copy of motor insurance certificate cum policy schedule in the name of Y. Suresh vide policy No. 432706/31/2009/413. Ex. B5 is the Xerox copy of final report.



7. As could be seen from the documentary evidence it is a fact that the complainant is the owner of the auto in question, the accident took place due to rash and negligent driving of the driver of auto, as a result the auto was damaged and one passenger received grievous injury. As per Ex. A1 and A2 the concerned police registered a crime and after due investigation charge sheet was filed against the concerned driver who was on the wheels at the time of accident. The respondent relied upon the fallowing decisions of the Hon’ble Supreme Court.

2008 SAR (Civil) P.130 – Supreme Court “(B) Consumer Protection Act, 1986 section 12 – Insurance Claim – disallowed by company on the ground that the driver was not having valid driving license – complainant moved the District forum – Insurance Company’s case was that at the time of the accident, driver was possessing a license to drive light motor vehicle, he could not have driven vehicle in absence of necessary endorsement as required by Sec. 3 of M.V. Act – District Forum held that complainant was not entitled to compensation – Whether District Forum was right in holding that on the basis of evidence adduced by Insurance Company, the complainant was not entitled to claim any compensation – held : yes.

Vehicle involved in the accident was Transport vehicle – License issued in favour of the driver was to ply light motor vehicle and there was no endorsement to drive transport vehicle – Insurance Company cannot be ordered to pay compensation – District Forum, held that complainant was not entitled to compensation – Whether complainant was entitled to claim compensation – held : No.

2009 (1) Decisions today (SC) 53 – Supreme Court “If the vehicle was being driven by a person who do not have a valid driving license – Insurance company cannot be saddled with liability in respect of O.D claim.

8. It is well settled law that the vehicle driver of the vehicle did not possessed a valid driving license and owner of the vehicle cannot claim any relief under C.P. Act. Ex. A2 registration certificate of the auto and Ex. B2 permit of the auto clearly indicates that auto is passenger carrying vehicle. Ex. B4 discloses that it is a passenger carrying vehicle. Thus the auto is a transport vehicle for which the driver requires a transport driving license. The driver should possess auto rickshaw with transport endorsement along with a badge number to drive the auto in question. As per Ex. B1 (extract of driving license) it is clearly shown that the driver of the auto had a AR (Auto rickshaw) and non-transport driving license only. The driver of the complainant is not purely qualified driver to drive the passenger carrying auto rickshaw due to his negligence and inefficiency the accident took place which is supported by Ex. A2. The repudiation of the O.D claim Ex. A6 by the respondent appears to be on sound reasons and there is no signs at deficiency of service on the part of the respondent as alleged by the complainant. The complainant filed a memo along with Xerox copy of Central Motor Vehicle rules 1989 and contended that as per rule 2 (h) non-transport vehicle means a motor vehicle which is not a transporting vehicle and R.T.O Authorities mentioned the tractor as LMV transport. The contention of the complainant and Central Motor Vehicle rules 1989 nowhere strengthen the case of the complainant. Contra in view of the decisions of the Hon’ble Supreme Court relied by the respondent it is on record that when the driver of the vehicle did not possess a valid driving license the owner of the vehicle cannot claim any relief under C.P. Act. In the present case driving license of the driver of the complainant is not duly qualified to drive the passengers carrying auto rickshaw. Further without a valid license he drive the vehicle in a rash and negligent manner, as a result there was an accident due to his fault and police have filed the charge sheeted against him for the offences U/s 338 of IPC. In fact the driver of the auto possessed a non-transporting driving license only. In fact he should possess auto rickshaw with transport endorsement along with a badge number to drive the auto in question. The decisions relied by the respondent, in which the Hon’ble Supreme Court observed that the vehicle was driven by a person who do not have a valid driving license the insurance company cannot saddled with liability in respect of O.D claim. The complainant failed to prove his case in favour of his claim. Viewed from any angle the complainant deserves no consideration in his favour for the settlement of O.D claim claimed by him.

9. Point No. 2 In the result, the complaint is dismissed without costs.

DATED THIS THE 12th DAY OF JANUARY 2010.
COMPLAINANT

BY-SRI.N.PRAKASH,

SRI. H.M.RAJESH,

ADVOCATES, BELLARY.
//VS//


SRI. M. VENKATA NAIDU,

S/O M. SREENIVASULU,

R/O ASKATH COMPED, TANK ROAD FORT, BEHIND VENKATESHWARA,

BELLARY TALUK & DIST.
RESPONDENTS

BY-SMT. V.ANJINA DEVI,

SRI.B.VENKATESWARA PRASAD,

ADVOCATES, BELLARY.


1. THE DIVISIONAL MANAGER,

ORIENTAL INSURANCE CO. LTD.,

DIVISIONAL OFFICE No.10, 79,

DWARAKA 2ND FLOOR,

UTTAMAR GANDHI SALAI,

CHENNAI-600 034.

2. THE DIVISIONAL MANAGER,

THE ORIENTAL INSURANCE CO.

1ST FLOOR, MAIN ROAD,

PARVATHI NAGAR, BELLARY.

//JUDGEMENT//

Sri. S.M.Reddy, President.

This is the complaint filed by above named Complainant under Sec-12 of C.P.Act, 1986 against the Respondents claiming damages caused to his vehicle in an accident under Insurance Policy together with interest and also compensation towards deficiency of service, mental agony and cost etc.

2. The brief facts of the Complainant’s case are that;

He is the registered owner of lorry bearing Regn.No.KA-34/B-1278 which was purchased by availing loan from M/s Sriram Transport Finance Co. Ltd., Bellary and the said vehicle was hypothecated in its favour. Further it is the case of Complainant that, the said vehicle was validly insured with the Respondents for the period from 31-01-2007 to 30-01-2008 and it was a comprehensive Policy covering all the risks. Further it is the case of Complainant that, his said vehicle met with an accident on 08/08/2007 at about 8.30 p.m. on Bangalore road at Bellary in which the said vehicle sustained damages and information of said accident was given to the concerned Police Station and also to the Respondents. The Respondents had sent the Company’s Surveyor who inspected the said vehicle and submitted his report stating that the said vehicle is damaged due to the said accident to an extent of Rs.1,79,105/-. The Complainant had handed over all the required documents demanded by the Surveyor. Thereafter, the Complainant has carried out the repairs to his vehicle. Further it is the case of Complainant that, he has put forward his claim to the Respondents by submitting all the documents and though they had intimated that they will settle the claim immediately after approval, but they have failed to settle the claim for the reasons best known to them. So the Complainant got issued legal notice on 03/07/2009 to the Respondents calling upon them to settle the claim immediately. But they have failed to settle the claim of Complainant. So there is negligence and deficiency in service on their part. Hence, the Complainant is constrained to file this complaint against the Respondents. The Complainant has claimed a sum of Rs.1,79,105/- from the Respondents towards damages caused to his vehicle together with interest @ 24% p.a. from the date of accident and also claimed a compensation of Rs.20,000/- each under the heads of loss caused to the Complainant from the date of accident and compensation towards deficiency of service, mental agony and also cost of Rs.5,000/-.



3. Both the Respondents have appeared through their common counsel. The Respondent No.2 has filed his Written Version which is adopted by the Respondent No.1 by filing a Memo to that effect and in the said Written Version, the Respondents have admitted that the Complainant is the registered owner of the lorry bearing No.KA-34/B-1278 and that it was validly insured with the Respondents for the period from 31-01-2007 to 30-01-2008. According to the Respondents, the said Policy is subject to terms and conditions enumerated therein and inconformity with the provisions of M.V.Act and said terms and conditions are binding on both the parties. The Respondents have not disputed that an accident occurred on 08/08/2007 in which the said vehicle of Complainant was damaged. The Respondents have also admitted that on receiving information of accident they had appointed one Mr.N.Ganesh, Surveyor & Loss Assessor who conducted spot survey on 08/08/2007 itself and noted down the damages and took photographs and submitted his report dated: 11-08-2007. According to the Respondents, the final survey has been conducted by L S Surveyors of Chennai Mr.N.R.Subramaniem on 21-08-2007 and noted down the extent of damages and assessed the net damages caused to the said vehicle as Rs.70,000/- and submitted the report on 26/11/2007. It is the case of the Respondents that, the claim could not be settled as the vehicle documents like R.C., D.L. Permit, Tax Card, Fitness Certificate, Load Challan etc. were not produced by the insured and no intimation was given in regard to the repair of the vehicle and re-inspection by their Surveyor and this fact has been informed to the advocate of insured by way of reply notice dated: 01-09-2009. Therefore, there is no negligence or delay or deficiency of service on the part of the Respondents. On these grounds, the Respondents have prayed for dismissal of the complaint.

4. The Complainant in support of his case has filed his affidavit evidence as P.W.1 and got marked documents as Ex.P.1 to Ex.P.10 and closed his side. On behalf of the Respondents, the Respondent No.2 has filed his affidavit evidence as R.W.1 and they have filed the affidavit evidence of both the Surveyors and Loss Assessors as R.W.2 and R.W.3 and got marked documents Ex.R.1 to Ex.R.9 and closed their side. The Complainant has filed written arguments and oral arguments of both the sides have been heard.