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Thread: Oriental Insurance

  1. #16
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    Consumer Case No.: 37 / 2007.
    Date of filing : 08.06.2007.
    Date of final order : 09.04.2009.
    PRESENT
    A) Sri Saurish Chakraborty President.

    B) Smt.Swapna Kar Member.

    C) Sri Swaraj Kumar Biswas Member.

    Bimal Dutta,
    Bidhannagar, Raiganj, Uttar Dinajpur. Complainant.

    versus

    1. The Branch Manager,
    Oriental Insurance Company Limited,
    Raiganj Branch, Uttar Dinajpur.

    2. Heritage Health Services Private Limited,
    Represented by the Manager (Operation),
    Nicco House, 5th Floor,
    2, Hare Street, Kolkata – 700 001. Opposite Parties.

    Judgment
    Date: 09.04.2009.

    This case arises out of a petition of complainant filed Under Section 12 of the Consumer Protection Act, 1986 by the petitioner Bimal Dutta on 08.06.2007 against the opposite party The Branch Manager, The Oriental Insurance Company Limited, Raiganj Branch, Uttar Dinajpur and one other for an order to pay the medical expenses of rupees 15,438.00 by the opposite party along with interest at the rate of 9 percent per annum and an award of rupees 5,000.00 as compensation and as litigation cost of rupees 2,000.00 and any other relief or relieves as the Hon’ble Forum deems fit and proper.


    The complaint story in brief is that the complainant obtained a Group Medical Insurance Policy, No. 313206/05/931 covering the period form 01.02.2005 to 31.01.2006 under M/s heritage Health Private Limited through the Oriental Insurance Company Limited, Raiganj Branch Office.

    Petitioner’s wife insured No. 2, Saraswati Dutta has an attack of serious abdomen pain in the month of July, 2005, started treatment initially on 19.07.2005 at Jiban Rekha Nursing Home. Thereafter, she admitted in Upasana Nursing Home on 21.07.2005 and after her operation she discharge from there on 25.07.2005.After released, petitioner informed to the opposite parties and submitted his claim along with all necessary documents and vouchers. But, after that, the petitioner came to know from a letter issued by opposite party number 2 that his claim has rejected on the ground that “pre-existing diseases not covered in the policy”.

    Complainant mentioned in his petition that although, Medical Certificate issued on 21.07.2005 by the concerned Doctor shown that the disease / pain was six months back but after that said doctor rectified his defects and mentioning “She had the pain for many months”. As such the petitioner prays that prescription of the concerned Doctor issued on 21.07.2005 would be consider in the matter of settlement of claim but opposite party number 2 is not considered at all. For that reason, not getting any claim amount from the opposite parties, petitioner has prayed before this Forum to get relief or relieves.

    Opposite party numbers 1 and 2 by filing a Written Version on 17.11.2008 has contested this case, denying inter alia, all the material allegations against them; contending therein that the case is not maintainable in its present form and law and as per their provisions of terms and conditions of policy and also on the ground of non-joinder of necessary party and for limitation.

    Opposite parties have admitted that the petitioner purchased a individual Mediclaim being No. 313206/2005/931 valid from 01.02.2005 to 31.01.2006 from M/s Heritage Health Private Limited through the opposite party number 1 and concerned with the Family members for total sum Assured of rupees 90,000.00. But they have not considered and not to realize the petitioner’s claim due to the fallowing reasons: -

    As per policy condition clause: 4.1 pre-existing diseases not covered in the policy.


    Secondly, as per Dr. Somnath Chatterjee’s prescription, dated 21.07.2005: “pain in abdomen – 6 months” i.e. Since Jan – 2005, whereas the policy was taken from 01.02.2005 only, Hence treating the disease suffered as pre-existing the claim stands repudiated.

    Thirdly, the complainant suppressed the materials fact at the time of inception of the policy.

    In the above circumstances opposite parties prays before this Forum to dismiss the case with cost and special cost may be awarded as per C. P. Code.

    To prove the complaint case complainant filed nine numbers of documents only.

    Decisions with reasons:

    We have carefully gone through the petition of complaint, W.V. and documents filed by the petitioner in this case and arguments advanced by the Ld. Lawyers for both the parties. We have come to the fallowing findings.

    It is not disputed the complainant purchased one Mediclaim policy for self and his family members from the opposite parties as per the case of the complainant the Mediclaim was purchased covering the period from 01.02.2005 to 31.01.2006 (Midnight). So, the policy is for a period of one year. The complainant here claimed

    Reimbursement of the medical treatment expenditure of his wife, who is also under the perview of the policy and after an operation, was done on her body for the disease called cholegstitis (Acute), the claim was forwarded. There also no disputes as to the fact of treatment of the complainant’s wife for the disease mentioned above. Complainant has filed certain Xerox copies of medical treatment papers of his wife. Now, the disputed point in this case is that the refusal of the opposite party / insurer to reimburse the claim. It is already on record that the complainant has forwarded a claim to the opposite party / insurer for reimbursement of the cost of medical treatment of his wife. There is a paper (Xerox copy) addressed to the petitioner by the opposite party / insurer stating therein that they are unable to admit the claim as the disease for which the complainant’s wife had under gone to an operation is a pre-existing one. This letter dated 26.10.2005 of the opposite party / insurer shows that an option was offered to him to file an appeal against the rejection of his claim to the Insurance Company, whose decision in this regard will be final and binding. So, the question to be decided thereafter whether, the disease as alleged was a pre-existing one. While rejecting the claim of the complainant, the opposite party / insurer quoted that as Dr. Somnath Chatterjee’s prescription dated 21.07.2005 of the wife of the complainant mentioned the words ‘pain in abdomen – 6 months’, so the disease was pre-existing. Now let us see the prescription dated 21.07.2005 of the wife of the complainant, we find an entry like ‘pain in abdomen from 6 months noted by the Doctor’.

    So, it appears that on entering into a Mediclaim policy on 01.02.2005 the petitioner’s wife went to Doctor on 21.07.2005 when her pain in abdomen which was 6 months old. If we trace upon the policy in question, we get that the petitioner’s wife developed the disease prior to the date of complainant’s entering into the Mediclaim policy for her and other family members.

    There was an attempt on the part of the complainant to plug the hole already created by the prescription dated 21.07.2005. In order to control the damage occurred in the matters already stated above; the complainant has obtained a certificate from the same Doctor to establish that in the prescription dated 21.07.2005 the words pain in abdomen from 6 months’ was mentioned by mistake. The certificate though bears no date of issue but complainant relies on it in support of his case. So, there is a glaring disparity in the case of the complainant. By his own contention it has been establish that the disease of his wife was a pre-existing that is to say prior to his enter into the Mediclaim policy for himself and his wife. So, in our view the case of the complainant gets hit by the clause where it is stated that the policy will not cover the pre-existing disease.

    Therefore, the opposite party / insurer is right to reject the claim of the complainant. The complainant fails to establish his case as such he is not entitled to get any relief from this Forum.

    Fees paid are correct.

    Hence, it is ordered

    That the case is dismissed on contest. No order is passed as to cost.

  2. #17
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    Consumer Complaint No. 8/2007
    Date of presentation: 10.1.2007
    Date of decision: 10.4. 2009

    Yash Pal Kapoor son of Sh. Hari Singh resident of Near Neugal Café Bundla, Palampur, District Kangra (HP)
    Complainant
    Versus

    The Oriental Insurance Company ltd. Subhash Chowk Palampur, District Kangra (HP) through its Branch Manager

    Opposite party

    Complaint under section 12 of the Consumer Protection Act, 1986

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

    For the complainant: Sh. Mansih Katoch, Advocate
    For the O.P Sh. Neeraj Bhatnagar, Advocate

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

    In nut-shell, the case of the complainant is that he is owner of a scooter and that the same was insured with the opposite party. It is asserted that during the subsistence of the insurance Policy, on dated 26.8.06, due to heavy rain and natural calamity, a popular tree fell on his scooter near, LIC office, which had been damaged in the said incident. After due intimation to the opposite party, the scoter was repaired at M/S Kamal Auto Service Station, Maranda. After completing necessary formalities, he had submitted his claim before the opposite party, but it repudiated the same in illegal manner and thus committed deficiency in service.


    2. The claim of the complainant has been resisted and contested by the opposite party by raising various preliminary objections including that the complainant has not come to this Forum with clean hands. On merits, it is asserted that after the receipt of intimation regarding the accident, the opposite party had immediately hired the services of an Independent Surveyor, who vide his detailed report assessed the loss to the scooter at Rs.6683/- subject to the terms and conditions of the Insurance Policy. It is asserted that since the complainant was not having a genuine and effective driving licence at the time of accident, he cannot be indemnified by the answering opposite party. So far as driving licence No.13584 dated 18.8.2004 is concerned, the same has not been submitted by the complainant alongwith the claim form. Other allegations were denied.


    3. Both the parties adduced evidence by way affidavits and annexures in support of their contention. The following points arise for determination:-
    1. Whether O.Ps committed deficiency in service, as alleged? OPC
    2. Whether the complaint is not maintainable, as alleged? OPOP


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

    REASONS FOR FINDINGS
    POINTS NO.1 AND 2


    5. Both these points are inter connected and interlinked, hence are taken up together for determination, in order to avoid repetition in discussion. Learned counsel for the complainant has argued that the opposite party, without application of mind, has repudiated the genuine claim of the complainant and thereby committed deficiency in service.


    6. On the other hand, learned counsel for the opposite party has argued that the complainant was not having a genuine and effective driving licence at the time of accident and that the opposite party has rightly repudiated the claim of the complainant in legal manner.


    7. To appreciate the arguments of the learned counsel for the complainant, the entire record available on the file was gone into in detail.


    8. From the record, it stands proved that the scooter of the complainant had suffered damage during the subsistence of the Insurance Policy, when, due to natural calamity; a popular tree fell on the same. It also stands proved that after receipt of intimation regarding the accident, the opposite party had appointed its independent Surveyor, who vide his detailed report, Annexure OP-1 had assessed the loss to the tune of Rs.6683/-. We are of the view that the opposite party was under legal obligation to pay the genuine claim of the complainant, when the scooter of the complainant had suffered damage due to natural calamity. The action of the opposite party in not paying the assessed amount to the complainant is nothing but great deficiency in service.


    9. So far as the defence of the opposite party, that the complainant was not having a genuine and effective driving licence, at the time of accident, is concerned, the same is rejected being devoid of any force in view of the fact that his scooter had suffered damage due to natural calamity. However, the complainant has placed on record, photo copy of his driving licence Annexure C-7. Its perusal goes to show that he was having learners licence to drive motor cycle with gear/Scooter.


    10 In view of the discussion made hereinabove, we hold that the complainant has been able to prove deficiency in service on the part of opposite party.
    9. Now, how this deficiency can be cured? We are of the view that the ends of justice will be met in case, the opposite party is directed to pay the assessed amount i.e. Rs.6683/- to the complainant. Due to deficiency in service, the complainant has suffered mental pain, agony and inconvenience and the ends of justice will be met in case the opposite party is directed to pay compensation, which is quantified at Rs.3000/- Hence, point No.1 is answered partly in affirmative and point No.2 in negative.


    10. No other point argued or urged before us.
    Relief


    11. In view of our findings on points No.1 and 2 above, the complaint is partly allowed and we order the opposite party to pay Rs.6683/- to the complainant within 30 days after the receipt of copy of this order, failing which it will carry interest @ 9% per annum from the date of complaint, till its realization. The opposite party is also directed to pay compensation to the tune of Rs.3000/-.The complaint is allowed alongwith litigation costs of Rs.2000/-.

  3. #18
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    Shri Varinder Kumar son of Shri Mela Ram, R/O Village Bhangari, P.O. Chowkar, Sub Tehsil Nohradhar, District Sirmour, H.P.

    … Complainant
    Versus


    The Oriental Insurance Company Limited
    Through its Branch Manager
    The Mall Solan, Tehsil and District Solan, H.P.

    …Opposite Party

    Coram

    Shri Pritam Singh (District Judge) President.
    Mr. Varinder Thakur, Member (Male)
    Ms. Arun Bala Sharma, Member (Female)
    ………………………………………………………………………
    For the complainant: Mr. Gagan Chauhan, Advocate.
    For the Opposite Party: Mr. B.R. Sharma, Advocate.


    O R D E R:
    Pritam Singh (District Judge) President:-
    1. This order shall dispose of the complaint under section 12 of the Consumer Protection Act, 1986. It is the case of the complainant that he is owner of Mahindra Pick-up bearing registration No.HP-16-1403 which was duly insured with the OP-Company vide insurance policy bearing No.434653 for a sum of Rs.3,50,000/- effective from 30.08.2004 to 29.08.2005. That on 05.05.2005 the vehicle in question while coming from Haripur Dhar to Nohra met with fatal accident at Tersu Nala near Village Chunvi resulting in its extensive damages and one of occupants of vehicle also expired in this accident. That the occupants of vehicle had hired it for carrying their goods-animal to be sold in fair of Haripur Dhar against payment of freight charges to driver of vehicle. The factum of accident was reported to the police and intimation in this behalf was also sent to the OP-Company. Thereafter, the complainant lodged insurance claim with the OP-Company. But, the OP-Company instead of settling his insurance claim repudiated the same and conveyed him vide communication dated 24.05.2005 on the ground that unauthorized passengers were traveling in the vehicle at the time of the accident. Hence feeling dissatisfied and aggrieved, by the act of the OP-Company, the complainant perforce preferred this complaint against the OP-Company.


    2. The OP-Company by filing reply of the complaint resisted it and raised some preliminary objections regarding maintainability of the complaint, cause of action alleging that there is no deficiency in service. On merits, they alleged that on receipt of the intimation about accident, surveyor was appointed to conduct survey and assess the loss caused to vehicle who assessed net loss of Rs.1,13,815/-. It is further alleged that at the time of the accident the vehicle was being used in violation of the insurance policy as some un-authorized gratuitous passengers were sitting in the vehicle at the time of the accident. Hence, the OP-Company was well within its right to repudiate the insurance claim and there being no deficiency in service, the complaint is sought to be dismissed. Thereafter the parties led oral and documentary evidence in support of their claim/counter claim.



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



    4. It may be stated that undisputedly the vehicle in question, i.e. Mahindra Pick-up bearing registration No.HP-16-1403 was duly insured with the OP-Company for a sum of Rs.3,50,000/- w.e.f. 30.08.2004 to 29.08.2005 as is evident from the copy of insurance policy Annexure C-2 placed on record by the complainant. It is also undisputed fact that on 05.05.2005 the aforesaid vehicle met with accident and sustained extensive loss. The FIR to this effect was lodged at Police Station Renuka Ji and intimation in this regard was also sent to the OP-Company. The OP-Company, admittedly appointed surveyor and loss assessor to assess the loss caused to the vehicle in question in accident who assessed net loss at Rs.1,13,815/-.



    5. The sole ground taken by OP-Company for repudiating the insurance claim of the complainant is that some unauthorized gratuitous passengers were traveling in the vehicle in question at the time when it met with accident and it was breach of terms of insurance policy. But, the OP-Company did not lead any evidence in support of this plea. No report of investigator is placed on record by OP-Company. The OP-Company also did not file affidavit of investigator Mr. P.P. Bakshi. Whereas the complainant has filed affidavits of persons S’Shri Gian Chand Suresh Kumar and Shri Gajinder Singh who unequivocally deposed through their affidavits that they were traveling in the aforesaid vehicle as the owners of goods and not as
    gratuitous passengers against payment of freight charges made to driver for goods being carried by them. Thus, it stands established on record by complainant from their evidence that the persons who were traveling in vehicle in question were in fact owners of goods who were carrying goods against payment of freight charges. The repudiation of the claim of the complainant on this frivolous ground is illegal and this act of OP-Company would certainly amount to deficiency in service.


    6. The complainant has claimed sum of Rs.1,83,581/- but no affidavit of the repairer who carried out repairs and charged this sum has been filed by complainant. The OP-Company in para No.4 of the reply has alleged that the surveyor after site inspection assessed the net loss at Rs.1,13,815/-. The surveyor being independent person his report cannot be discarded.



    7. For the foregoing reasons, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of Rs. 1,13,815/- along with interest at the rate of 9% per annum with effect from the date of filing of complaint, i.e. 14.07.2006, till making full payment of the aforesaid amount. The OP-Company is also burdened with litigation costs of Rs.1500/- payable to the complainant. This order shall be complied with by the OP-Insurance Company within a period of forty five days after the date of receipt of copy of this order. The learned counsel for the parties have undertaken 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.

    Announced on this the 30th day of April, 2009.
    (Pritam Singh)
    President.

  4. #19
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    Smt. Kamla Bhotka W/O Shri Devi Singh Bhotka R/O Village Batiana, P.O. Dhamandri, Tehsil Theog, District Shimla, H.P. through her General Power of Attorney and husband Shri Devi Singh Bhotka.

    … Complainant.
    Versus


    The Oriental Insurance Company, Opposite Anup Service Station, Circular Road, Kaithu, Shimla-171003 through its Manager.

    …Opposite Party

    Coram
    Shri Pritam Singh (District Judge) President.
    Ms. Karuna Machhan, Member (Female)
    Mr. Charanjit Singh, Member (Male)
    ………………………………………………………………………..
    For the complainant: Mr. Raman Jamalta Advocate vice
    Mr. Ranvir Chauhan, Advocate.

    For the Opposite Party: Mr. Sanjay Karol, Advocate

    O R D E R:
    Pritam Singh (District Judge) President:-This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The brief facts as set in the complaint are that the complainant is registered owner of vehicle bearing registration No.HR-58A-2270, which was duly insured with the OP-Company vide policy No. 31/2003/916 effective from 19.08.2002 to 18.08.2003. It is alleged that the aforesaid vehicle met with an accident on 09.06.2003 and sustained extensive damage. That the factum of the accident was reported to the police at Police Station Theog and intimation in this behalf was also sent to the OP-Company. Thereafter, the complainant lodged insurance claim with the OP-Company. But, the OP-Company instead of settling her insurance claim, repudiated the same on the ground that she did not submit the required documents to them for settling the insurance claim. Hence, feeling dissatisfied and aggrieved by the act of the OP-Company, she perforce filed this complaint against OP-Company.


    2. The OP-Company while filing reply of complaint took some preliminary objections regarding maintainability of complaint, violation of the terms and conditions of the insurance policy etc. On merits, they alleged that the complainant did not submit the original driving licence of the driver, R.C., route permit and fitness certificate of the vehicle in question for verification. However, on receiving the intimation regarding accident, the surveyor was appointed by them to assess the loss, who after visiting the site conducted survey and assessed the loss to the tune of Rs.53,915/-. But, the complainant did not submit the required documents, to them despite repeated asking for settlement of the insurance claim, therefore the OP-Company was well within its right to repudiate the claim and there being no deficiency in service on their part, the complaint is sought to be dismissed. Thereafter, the parties led oral and documentary evidence in support of their claim/counter claim.


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


    4. It may be stated that admittedly, the complainant being registered owner of the vehicle baring registration No.HR-58A-2270 had got it insured with the OP-Company for sum of Rs.6,33,000/- vide policy No.31/2003/916 effective from 19.08.2002 to 18.08.2003. It is case of the complainant that she had engaged one Shri Rakesh Kumar as driver for driving the said vehicle who was having valid and effective driving licence to drive the same. Undisputedly, the vehicle in question met with an accident on 09.06.2003 when it was going to Mohri for loading the vegetable and it sustained extensive losses. The FIR regarding this accident was lodged at Police Station Theog on 09.06.2003 and the intimation regarding this accident was also sent to the OP-Company. Admittedly, the OP-Company deputed surveyor and loss assessor to conduct survey and assess the loss caused in accident to the vehicle in question who after conducting the survey submitted the report and assessed the net loss to the tune of Rs.53,915/- to be paid to the complainant.


    5. The sole ground for repudiating the insurance claim of the complainant is that the she failed to send the original driving licence of the driver, log book, cash memo of repairs, R.C. to them for verification despite their repeated asking. However, the complainant specifically alleged in para No.6 of complaint that when she received the letter from the OP-Company on 19.11.2003 calling upon her to submit the original driving licence, R.C. log book etc., she submitted the same to the OP-Company. But, the OP-Company instead of settling her insurance claim repudiated the same and intimation to this effect was also sent to her vide letter dated 28.11.2003. The complainant also placed on record the repudiation letter Annexure C-5 in this behalf, alongwith letter Annexure C-4 vide which she was called upon by the OP-Company to submit the original documents aforesaid. The complainant has also placed on record & relied upon the photo copy of the R.C. Annexure C-1 along with photo copy of the driving licence of driver Rakesh Kumar Annexure C-3. As per the contents of the driving licence Annexure C-3, it was earlier issued for LMV but subsequently it was endorsed for heavy goods vehicle by R.L.A. Theog on 20.04.2002 and renewed up to 21.06.2003. Therefore, the driver Rakesh Kumar was having valid and effective driving licence endorsed for heavy goods vehicle at the time when the vehicle met with an accident on 09.06.2003. Thus, when the complainant has filed the copies of the R.C. and driving licence with this complaint, it cannot be said by any stretch of imagination that she failed to supply the aforesaid original documents to the OP-Company when she was called upon to do so. As such, this sole ground taken by the OP-Company for repudiating the insurance claim of the complainant does not appear justified and legally sustainable.


    6. The complainant alleged that she got the repair estimates prepared to the tune of Rs.1,42,250/- for getting the vehicle repaired but she did not place on record the original repair estimates bills or copy thereof in support thereof. No affidavit of the person from whom she got the repair estimate of the vehicle prepared is also filed by her.


    7. As stated above, the OP-Company had deputed surveyor & loss assessor to conduct survey and assess the loss caused to this vehicle in this accident who after conducting survey prepared the report Annexure R-1 and submitted the same to the OP-Company. As per this report, the surveyor had assessed the net loss to the tune of Rs.53,915/- and recommended this amount to be paid by the OP-Company to the complainant. It has also been alleged by the OP-Company in the reply that the surveyor had assessed the net loss of Rs.53,915/- qua loss sustained to the vehicle in question in this accident. Therefore, this report of the independent surveyor which remained unrebutted can be safely acted upon to determine the insurance claim of the complainant. As such, we hold that the complainant is entitled to be indemnified by the OP-Company to the extent this net loss of Rs.53,915/-.


    8. For the foregoing reasons and discussion, we allow this complaint and direct the OP-Company to indemnify the complainant to the extent of a sum of Rs.53,915/- alongwith interest at the rate of 9% per annum from the date of filing of the complaint, i.e. 20.10.2005 till making full payment of the aforesaid amount. The litigation cost is quantified at Rs.1500/- payable by the OP-Company to the complainant. 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.

  5. #20
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    Harvinderjit Kaur aged about 46 years wd/o Sh Jaspal Singh s/o Udham Singh r/o village Dalewal Tehsil and District Hoshiarpur.


    Complainant


    vs.


    The Oriental Insurance Company Limited, Divisional Office, SCO 18-19, Chandigarh Road, near Mini Secretariat Hoshiarpur through its 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 Choudhary, Member.


    Present; Sh D.S.Seehra, counsel for the complainant.
    Sh V.K.Prasher, counsel for the OP.

    PER P.D.GOEL,PRESIDENT

    1. The complainant namely Harvinderjit Kaur 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 husband of the complainant namely Jaspal Singh got himself insured for Rs.one lac under Janta Personal Accident Insurance Scheme on 27.4.2008 for one year i.e. upto 26.4.2009 on payment of premium amount of Rs. 60/- to the OP. . The OP undertook to pay a sum of Rs. One lac in case of accidental death of said Jaspal Singh. Sh Jaspal Singh nominated his wife -complainant to receive the amount of Rs. One lac in case of accidental death.
    2. It is the case of the complainant that her husband-Jaspal Singh was the driver of truck tanker no. HR63-5545. That on 25.7.2008, said Jaspal Singh was going from Jalandhar to Loni(U.P). When the said tanker reached near Sukhdev Dhaba in the area of Police Station, Murthal, a stray cattle suddenly came on the road . Sh Jaspal Singh tried to escape the stray cattle and turned the truck towards his right side, consequently, the truck struck against a stationed truck from its backside , thus, the front portion of the truck got pressed and Jaspal Singh got serious injuries. . Thereafter, he was taken to Civil Hospital, Sonepat , where he was given first aid . The condition of Jaspal Singh was serious , therefore, he was referred to PGI, Rohtak, where he was kept in emergency ward.
    3. It is further the case of the complainant that while coming back from Rohtak to Hoshiarpur, said Jaspal Singh died due to injuries on the way on 25.7.2008. The post mortem on the body of Jaspal Singh was not got conducted due to ignorance. The DDR no. 31/08 was got recorded at P.S.Murthal on the statement of one Jaswinder Singh.
    4. It is further the case of the complainant that she being nominee of deceased Jaspal Singh lodged claim and completed all the formalities. It is the allegation of the complainant that OP instead of paying Rs.one lac to her, repudiated the claim vide letter dated 23.12.2008 on the ground that post mortem examination was not conducted on the body of deceased Jaspal Singh. The repudiation of claim by the OP is illegal as the complainant and her relatives were ignorant with regard to the formalities of post mortem examination , hence this complaint.
    5. OP filed the reply. Preliminary objections vis a vis maintainability and the complainant is not the consumer were raised. On merits, the claim put forth by the complainant has been denied. It is replied that there is no document to link the death of Jaspal Singh on account of alleged injuries. The complainant has failed to produce post mortem report of deceased Jaspal Singh, which is a vital document to know the cause of death. It is further replied that the claim is not payable due to non submission of post mortem report of deceased. It is denied that Jaspal Singh was admitted in PGI, Rohtak, rather, he was shifted from Rohtak against doctor's advice . The recording of DDR after 13 days is an act of manipulation and after thought . The claim was rightly repudiated vide letter dated 23.12.2008.
    6. In order to prove the case, the complainant tendered in evidence affidavit Ex.C-1, insurance cover note Mark C-2, DDR dated 7.8.2008 Mark C-3, copy of MLR Mark C-4, intimation dated 25.7.2008 Mark C-5, application dated 25.7.2008 Mark C-6, application bearing endorsement dated 2.8.2008 Mark C-7, photographs Mark C-8 to C-10, death certificate of Jaspal Singh Mark C-11, certificate by Lambardar Mark C-12, DL of Jaspal Singh Mark C-13, letter dated 23.12.2008 Mark C-14 and affidavit of Shingara Singh Ex. C-15 and closed the evidence.
    7. In rebuttal, the opposite party tendered in evidence affidavit of Ajay Garg Ex.OP-1 and policy Ex. OP-2 and closed the evidence.
    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 OPs have repudiated the claim qua Mark C-14. It has been stated that there is no document which can link the injuries suffered by Jaspal Singh with accident. Secondly, that this being case of accident, the post mortem of the deceased was necessary to know the exact cause of death.
    10. Admittedly, the present complaint has been filed by the widow of the deceased -Jaspal Singh alleging therein that her husband was insured for a sum of Rs. One lac under “Janta Personal Accident Insurance Scheme” from 27.4.2008 to 26.4.2009. It is the case of the complainant that on 25.7.2008, said Jaspal Singh, while driving the tanker met with an accident near Sukhdev Dhaba in the area of Police Station, Murthal, Said Jaspal Singh died due to injuries on the way from Rohtak to Hoshiarpur. That the dead body of the deceased was not subjected to post mortem examination, however, DDR no. 31/7.8.08 Mark C-3 regarding said accident was got recorded at P.S.Murthal . The body of deceased Jaspal Singh was cremated at his native village on 26.7.2008.
    11. Admittedly, the OP-The Oriental Insurance Company Limited was under legal obligation to pay a sum of Rs.one lac , in case said Jaspal Singh dies an accidental death. The complainant has raised the plea that she and her relatives were ignorant of the formalities to be completed for lodging the claim, as such, post mortem examination of deceased Jaspal Singh was not conducted. Mark C-4 is the copy of MLR . Mark C-11 is the death certificate of Jaspal Singh. The complainant has also placed on record the certificate of the Sarpanch Mark C-12 qua which he has certified that Jaspal Singh son of Udham Singh resident of village Dalewal Tehsil and District Hoshiarpur had died due to the accidental injuries on 25.7.2008. The dead body of Jaspal Singh was cremated in the village on 26.7.2008 in his presence. Ex.C-15 is an affidavit of Shingara Singh, Lambardar and Sarpanch, wherein he has stated that deceased Jaspal Singh belongs to his village , who met with an accident on 25.7.2008 near Sonipat and received serious injuries on his person and died on the same day, when was being brought to Hoshiarpur. That the dead body of Jaspal Singh was cremated on 26.7.2008 in his presence.
    12. Now, it is established on record that DDR with regard to accident of Jaspal Singh was recorded at Murthal qua Mark C-3 and copy of MLR is Mark C-4. The death certificate is Mark C-11. The Lambardar and Sarpanch of the village qua Mark C-12 and Ex.C-15 have categorically stated that Jaspal Singh died due to injuries sustained in the accident and his body was cremated in the village in their presence. The OP has not produce any evidence to rebut the evidence produced by the complainant that Jaspal Singh had died due to the accidental injuries suffered in the accident. It has been held by the Hon'ble Uttaranchal State Consumer Disputes Redressal Commission, Dehradun in recase Narendra Singh Bhasin vs National Insurance Co. Ltd. ,2005(1) JRC, 391, that it is not mandatory that there should be necessarily FIR or post mortem, if accidental death is proved otherwise,then in the absence of FIR or otherwise , the claim should not be rejected as the death of the insured was only due to accident and his case was fully covered under the policy.
    13. Now it is established that the Lambardar and Sarpanch of the village have stated that Jaspal Singh died due to injuries sustained in the accident, and thereafter, his dead body was cremated in the village , consequently, it is held that Jaspal Singh died due to accidental death.
    14. The matter does not rest here. It is also clear that after the accident, said Jaspal Singh was admitted in Civil Hospital, Sonepat and the doctor attending upon the patient referred him to PGI, Rohtak, as his condition was serious. The close scrutiny of the MLR, Mark C-4 also makes it clear that Jaspal Singh received injuries in the road side accident. The law laid down by the Hon'ble Uttaranchal State Consumer Disputes Redressal Commission, Dehradun is fully attracted to the facts and circumstances of the present case..
    15. As a result of the above discussion, it is held that the OP was not justified in repudiating the claim, which amounts to deficiency in service, with the result , the complaint is accepted and the OP is directed to pay a sum of Rs. one lac to the complainant with interest @ 9% per annum from the date of complaint i.e. 30.1.2009 till realization alongwith litigation expenses of Rs.1000/- within one month from the receipt of copy of the order.

  6. #21
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    Default Oriental Insurance

    CONSUMER complaint NO. 80 OF 2008

    Between:
    Kakkera Satyanarayana, S/o. Prakash Rao, age 37 years, Occ: Business, R/o. H. No.2-9-51, Mukarampura, Karimnagar.
    …Complainant
    AND
    Oriental Insurance Company Limited, R/by Branch Manager, P.O. Box. No. 5, Opposite Collector Office, Karimnagar.
    …Opposite Party

    This complaint is coming up before us for final hearing on 8-4-2009, in the presence of Sri T. Srinivas Reddy and D.Nagaraju, and P. Raja Gopal, Advocates for complainant and Sri Ch. Venkateshwar Rao, Advocate for opposite party, and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following:
    ::ORDER::

    1. The averments is brief of the complaint are that he purchased a Motor Cycle Hero Honda Passion bearing no. A.P. 15-AA-1971 and obtained insurance policy for the said vehicle from opposite party by vide policy no.431402/2007/1743 Dt: 31.7.2006 covering risk of damage in accident and also covered theft showing the value of the vehicle is Rs.36,000/-. On 28.8.2006 he kept his vehicle in front of his house and after having break-fast at 8.00 AM when he came from the house he noticed the vehicle was missing. He searched for the vehicle and lodged a complaint on 24.11.2006 with CCS Karimnagar who registered a case in Crime NO.207/2006 from the offence under section 39 IPC and the said case under registration. He submitted a representation along with all relevant documents on 30.3.2007 informing about the acts but they did not consider their claim, hence the complaint.

    2. Opposite party filed counter that the complaint is not maintainable as per Consumer Protection Act and there is no deficiency of service on their part. It is also denied the vehicle was misplaced on 28.8.2006 when it was parked in front of the house of complainant. In case of that or other criminal act which may be the subject to claim under the policy the insured shall give immediate notice to the Police and cooperate with the company in receiving the conviction of the offender. In this case theft was committed on 28.8.2006 and the complaint is lodged before the Police on 24.11.2006 and information to the company is given on 13.3.2007. More than 6 months of alleged theft. Thus the complainant violated the conditions and prayed to dismiss the complaint.

    3. Both parties have filed their Proof Affidavits reiterating the contents of the complaint and counter. The documents filed by the complainant are marked as Ex.A1 to A8 and the documents filed by the opposite party are marked as Ex.B1 to B4.

    4. Ex.A1 is the original registration certificate for Motor Cycle issued by R.T.A., Karimnagar Dt: 10.5.2005. Ex.A2 is the original policy certificate issued by opposite party Dt: 31.7.2006. Ex.A3 is the copy of F.I.R. issued by CCS Police, Karimnagar Dt: 24.11.2006. Ex.A4 is the office copy Claim Form submitted by the complainant Dt: 13.3.2007. Ex.A5 is the office copy of Legal Notice Dt: 7.12.2007. Ex.A6 is the original postal receipt Dt: 17.1.2008. Ex.A7 is the letter from complainant addressed to R.T.A., Karimnagar Dt: 13.3.2007. Ex.A8 is the Notice Form No.96 issued by Police Station, CCS Karimnagar Dt: 25.5.2007.

    5. Ex.B1 is the copy of Policy along with enclosures. Ex.B2 is the letter of the complainant addressed to opposite party Dt: 13.3.2007. Ex.B3 is the letter from opposite party addressed to complainant Dt: 15.3.2007. Ex.B4 is the reply notice from opposite party addressed to counsel for complainant Dt: 4.2.2008. Ex.B5 is the postal acknowledgement card addressed to counsel for complainant.

    6. As seen from the above referred facts there is no dispute that the Motor Cycle Hero Honda Passion bearing no. AP 15-AA-1971 belongs to complainant was insured with opposite party by vide policy no.431402/07/1743 Dt: 31.7.2006 covering the risk of damage in accident and also covered theft showing the value of the vehicle is Rs.32,000/-. Ex.B1 is the policy, it is a specific case of complainant on 28.8.2006, at 8.00 AM his vehicle was found missing in front of his house and after searching for the same he lodged complaint with Police Station, Karimnagar on 24.11.2006 and the said Police Station after thorough efforts submitted a report to concerned Magistrate that the crime is undetectable. Inspite of submitting the claim by the complainant to the opposite party on 13.11.2007 they are not considering his claim. Interalia the learned counsel for the opposite party contended the claim of complainant is not genuine and if really his vehicle was missing on 28.8.2006 he would have given the complaint immediately or within the reasonable time. In this case he has given the complaint more than 2 months after incident. As per the terms of the policy Ex.B1 the complainant has to intimate about the theft to the company immediately. But he has not informed to the opposite party for more than 6 months. Therefore, he is not entitled for the claim.

    7. In view of the contentions it is to be seen whether the complainant is entitled for the claim as prayed for?

    8. Ex.A3 is F.I.R. in Crime No.207/2006 Dt: 24.11.2006 registered basing on the complaint given by the complainant herein. In his statement he has stated that the vehicle was missing from 28.8.2006. Ex.A8 is the notice given by the Police Station, Karimnagar that requesting to submit his report since the claim is undetectable. Ex.A4 & A7 are the letters addressed by the complainant to Manager of opposite party as well as Transport Authority intimating about the theft committed on 28.8.2006. As seen from Ex.A3 the complainant has stated that he searched for his vehicle from 28.8.2006 till the date of complaint Dt: 24.11.2006 since the said vehicle is not available he has approached the Police and thus explained the delay in lodging the report. But contrary to the said contents and contents of the complaint in Ex.A4 in the letter addressed to opposite party he has misrepresented stating that on the same day of theft he went to CCS Karimnagar and lodged a complaint with Police, but Police registered the complaint only on 24.11.2006. It appears that this sort of false statement made by the complainant is only to cover up his latches for causing delay in lodging the complaint. Any how no prudent man will keep quiet from 28.8.2006 to 24.11.2006 without lodging any complaint. This delay on the part of complainant is sprouting doubt about the genuinity of the theft. Further he did not file any Final Report issued by the concerned Magistrate in pursuance of the notice issued by the Police requesting that the claim is undetectable. Thus there is no evidence that the crime is closed by the concerned Court holding that the crime is undetectable to confirm the theft of the vehicle. Further as per the terms of the contract between the parties under Ex.B1 Policy Clause 1 postulates as follows:
    Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss of damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution, Inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or other criminal act which may be the subject of a claim under this Policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender.

    9. But Ex.A4 letter addressed by the complainant to opposite party Dt: 13.3.2007 clearly proving that the complainant did not inform to the opposite party about the theft or about Police Investigation immediately after the incident Dt: 28.8.2006 or within the reasonable time for the reasons best known to him. This abnormal delay of six and half months after the incident clearly establishing that the complainant is not come to the Court with clean hands and he has hidden material facts and violated the terms of the agreement.

    10 As per the reported judgment CTJ Volume-15 No- XII, December 2007 NCDRC page 935, where in the Honourable National Commission held that there is no doubt that Consumer Forums are designated to help the honest consumer with bonafidy and not otherwise.
    (2) 1999 (1) CPR 33 (NC) The Honourable National Commission held that a party which suppressed the material facts does not deserve to get any relief. Therefore, opposite party rightly rejected the claim of complainant since the complainant failed to prove the theft of vehicle by way of any cogent and legal evidence he has not entitled for any compensation and it is liable to be dismissed.

  7. #22
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    Default Oriental Insurance

    ORDER Date of filing : 11-07-2008
    Date of order : 01-04-2009
    IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
    C.C.No.112/2008
    Dated this, the 1st day of April 2009.
    PRESENT
    SRI.K.T.SIDHIQ : PRESIDENT
    SMT.P.RAMADEVI : MEMBER
    SMT.P.P.SHYMALADEVI : MEMBER

    Shanawas,
    S/o.Muhammadkunhi,
    ‘Green Yard’,
    Juma Mazjid Road, Kottikulam, } Complainant
    Rep.by his power of attorney holder,
    Shajeeb.M.A, S/oA.M.Muhammadkunhi,
    ‘Green Yard’ Juma Mazjid Road,
    Po.Kottikulam.
    (Adv. P.Narayanan, Hosdurg)

    The Manager,
    Oriental Insurance Co.Ltd,
    Branch office, Iind Floor, City point } Opposite party
    Building, M.G.Road, Kasaragod.
    (Adv. A.K.V.Balakrishnan, Kasaragod.

    O R D E R
    SRI.K.T.SIDHIQ, PRESIDENT



    Briefly stated the facts leading to filing the complaint are that the Maruti 800 Car bearing Reg.No.KL-14/C 8926 belongs to the complainant was stolen on 11-03-2006. The vehicle was duly insured with opposite party. The complainant lodged FIR before the S.H.O. Bekal and police registered the Crime No.112/06. Though the complainant preferred a claim before the opposite party, the same was repudiated on the ground that the vehicle was subsequently traced out by Vittal Police and it is in the custody of Excise Department of Karnataka. Since the stolen vehicle is traced out the complainant can repossess the same and hence opposite party is not liable to honour the claim on the ground of theft or burglary. Hence the complaint alleging deficiency in service on the part of opposite party.


    2. According to opposite party the vehicle was insured for Rs.1,45,000/- and the policy was issued to the registered owner. As against the claim of the complainant, he was asked to produce all claim papers including a non-detectable certificate from the police. But the complainant failed to produce the non-detection certificate since the vehicle was traced out and the vehicle is now under the custody of Excise Commissioner. E.I Bantwala, D.K. District, Karantaka and the complainant had not made any attempt to repossess the vehicle. As per the policy condition the company is liable to indemnify the owner only when the vehicle is undetected and hence there is no deficiency in service on the part of opposite party.


    3. Complainant filed affidavit as PW1 in support of his claim reiterating that is stated in the complaint. Exts. A1 to A8 marked. For opposite party Sri.T.P. Lakshmanan, Branch Manager, Kasaragod filed affidavit as DW1 and Exts. B1 to B3 are marked. Both sides heard and the documents perused carefully.


    4. The learned counsel for the complainant Sri. P.Narayanan argued that the policy nowhere provides that it is mandatory to produce Undetection Certificate from the concerned police to settle the claim and DW1 also deposed accordingly.


    5. Ext. A7 is a letter dated 3-12-08 issued from the office of Deputy commissioner of Excise, D.K. District, Mangalore to the complainant. In the said letter the authorized officer and Deputy Commissioner of Excise, D.K. District, Mangalore has stated that the confiscation proceedings of the vehicle KL-14/C 8926 are pending before the said court and at that status the vehicle cannot be released in favour of RC Owner.


    6. Therefore it is clear that the vehicle is under confiscation proceedings and as far as the complainant is concerned he had lost it irrecoverably since there is no provision to release a vehicle that is confiscated under the provisions of Abkari act.


    7. Now the question arises for consideration is whether the opposite party is liable to indemnify the loss as per the policy Ext. B1 issued to the complainant or not?


    8. As per Ext. B1 policy the insurer is liable to indemnify the insured against the loss or damage not only due to burglary house breaking or theft but for other reasons stated in the policy. Committing theft of a vehicle and using it for transporting contraband articles like illicit arrack is nothing but a malicious act. As per the policy issued, the opposite party is liable to indemnify the loss sustained to the insured due to the malicious act also. In case of malicious acts which causes loss to the insured the production of non-detection certificate is not at all relevant. Therefore non production of non-detectable certificate is not fatal for the settlement of the claim of the complainant on account of claim arising out of malicious acts. Hence repudiation of the claim of the complainant is a deficiency in service on the part of opposite party as envisaged under Consumer Protection Act. The insured’s Declared Value was Rs.1,45,000/- as per the policy issued to the complainant.
    Therefore the complaint is allowed and the opposite party is directed to pay Rs.1,45,000/- (Rupees One lakh fourty five thousand only) with interest @ 9% per annum from the date of complaint till payment along with a cost of Rs.2000/-.

  8. #23
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    Default Oriental Insurance

    M.P KUNHAHAMMED KUTTY
    ...........Appellant(s)
    Vs.

    M/S ORIENTAL INSURENCE Co. Ltd
    ...........Respondent(s)

    ORDER
    By Smt. C.S. Sulekha Beevi, President,


    1. The Cinema Theatre 'Siyo Movies' owned by complainant is insured with opposite party for Rs.16,00,000/- under a Standard Fire and Special Perils Policy. During the currency of the policy on 12-6-2003 at about 9 PM while Cinema exhibition was going on a few miscreants trespassed into the theatre and committed mischief whereby much damage was caused to furniture and other items of the theatre. Damage was caused to 245 chairs and to the screen also. Police registered crime No.140/03 with regard to the incident. Opposite party was informed about the incident through phone and also by registered post. On 13-6-2003 in the absence of the complainant the surveyor deputed by opposite aprty conducted inspection and survey of loss. Since this inspection was conducted without gathering detailed information from complainant, a request for conducting a fresh survey was forwarded to opposite party by complainant. Opposite party accepted this request and deputed another surveyor. That this surveyor assessed that 245 chairs and screen were damaged. On 01-10-2003 opposite party informed the complainant that the total compensation payable for the loss is Rs.10,550/- only. Complainant send a registered letter requesting for copies of survey reports to which opposite party did not respond. Complainant is aggrieved by the compensation arrived by opposite party and hence this complaint. Complainant alleges that opposite party is liable to pay Rs.1,65,891/- as loss incurred for repair and replacement of chairs Rs.14,000/- towards consequential loss and Rs.25,000/- towards mental agony and hardships.


    2. Opposite party filed version admitting insurance coverage. It is submitted that on receiving intimation of the incident a surveyor Sri.K. Divakaran was deputed by opposite party to assess the loss. This surveyor inspected the spot on 13-6-2003 and submitted report. Later on 22-8-2004 opposite party received a letter from complainant expressing dissatisfaction in the conduct of survey. Though the grounds on which complainant sought second survey was not true, in order to resolve the dispute opposite party deputed another surveyor Sri.Vijayaram. This surveyor also inspected and assessed the loss/damage. The second surveyor submitted his report on 09-9-2003. As per the report of second surveyor the findings of the first surveyor in regard to damage/loss stood ratified. That the total claim was finalised as Rs.10,550/- basing upon both these survey reports. Though complainant was informed about this, he did not respond. Later he requested to issue copies of the survey report. Survey reports are classified as private and confidential and hence copies could not be furnished. The claim could not be settled due to the conduct of complainant who was not inclined to settle and intended to file unnecessary litigation. That there is no deficiency in service and that complainant is not entitled to any reliefs.


    3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A9 marked for him. Opposite party filed counter affidavit and Exts.B1 to B6 marked for opposite party. Either side has not adduced any oral evidence.


    4. Complainant is aggrieved that opposite party failed to pay sufficient compensation for the loss sustained due to malicious damage to the cinema theatre insured with opposite party. Opposite party refutes the complaint on the submission that the final claim of Rs.10,550/- was arrived on the basis of the two survey reports and that the complainant is therefore not entitled to any further amount.


    5. Admittedly two surveyors had assessed the damage and submitted their reports. Ext.A9 is the first survey report dated, 11-8-2003. This surveyor has assessed the net loss as Rs.21,000/-. After deducting Rs.10,000/- as policy excess as per Ext.B6 Rs.10,550/- has been arrived as claim amount by opposite party. Ext.B5 is the second survey report by Sri Vijayaram. In Ext.B5 it is seen that the surveyor has accepted the observations of loss noted in Ext.A9 and justified the assessment and decision of first surveyor. In Ext.B5 the surveyor has stated as under:



        1. “I do not find any unjustifiable decision on the part of the first surveyor and as such without substantial and clear proof to the contrary; find it difficult to make any change in the assessment.”





    6. The assessment of loss is challenged mainly by complainant in the number of chairs that were repaired and replaced and also the non-consideration of damage to screen. According to complainant 245 chairs were damaged. As per Ext.A9 the surveyor has taken into consideration damage of 90 chairs only, ie., 60 chairs of the middle class and 30 chairs of lower class. Counsel for complainant relied upon Ext.A2 scene mahazar and submitted that in this scene mahazar which was prepared just one day after the incident it is stated that chairs of 8 rows have been uprooted and broken. It is also seen in Ext.A2 that tube lights and fan were broken and seen fallen on the floor. The loss to such items have not been considered for assessment of claim. We have to say that both the surveyors are silent as to the exact number of seats/chairs in each of the upper, middle and lower classes. In Ext.A9 it is simply stated 419 numbers of wooden chairs with wooden seats are provided for the seating in the theatre. Ext.B2 series which are photographs accompanying Ext.A9 survey report shows that much damage is caused to the chairs. Some of the chairs are seen totally damaged. It was contended by complainant that they had to be replaced. Surveyor has assessed the loss only for repairing and not for replacement. The damage to some chairs in Ext.B2 photograph would show that the repair cost would be higher than a replacement. In such a case the contention of the complainant that 245 chairs had to replaced does have some substance. Being a cinema theatre generally all seats of the same class should appear uniform and alike. When some chairs which are totally broken are replaced with chairs of steel frame it is only justifiable and reasonable to consider that complainant had to re-do all the 245 chairs which were damaged. Further the surveyor has assessed only Rs.250/- as repair charges (including labour charges) for each chair of middle class and Rs.200/- as repair charges (including labour charges) for each chair in lower class. In our view, the labour charges for such repair work which involves skilled labour is very high. Surveyor has stated that the chairs were made of Jack/teak wood. On perusal of Ext.B2 and taking into consideration the cost of wood and labour charges we have to say that the assessment made by surveyor is very low. In Ext.B5 the second surveyor has stated that 245 chairs were seen remade. From the evidence and materials placed before us we have no dispute to hold that assessment of loss made by surveyor with regard to damage to chairs is not justifiable. As per Ext.A5 quotation complainant has spend Rs.1,59,250/- for repairing 245 chairs @ Rs.650/- per chair. In our view complainant can be allowed repair charges for 245 chairs @ Rs.200/- per chair which would be reasonable.


    7. The claim of the complainant for replacement of screen is not supported by any reliable evidence. In Ext.B2 photograph the screen is seen in tact on 11-8-2003. So we disregard the claim of the complainant regarding replacement of screen. Thus we consider that complainant is entitled to Rs.49,000/- (245 chairs x Rs.200/-) towards loss sustained for damage to chairs. After deducting policy excess of Rs.10,000/- opposite party is liable to pay an amount of Rs.39,000/-. In our opinion complainant has to be allowed interest @ 6% upon the above amount from the date of complaint till payment which would be sufficient compensation.


    8. In the result we allow the complaint and order opposite party to pay Rs.39,000/- (Rupees thirty nine thousand only) to complainant with interest @ 6% per annum from the date of complaint till payment within one month from the date of receipt of copy of this order.

  9. #24
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    Default Oriental Insurance

    ORDER DELIVERED BY Sri. R.G.PATIL, PRESIDENT



    1)This is a complaint praying to direct the OP to pay to the complainant Rs.2,25,000-00 with interest, compensation of Rs.50,000-00 and cost of proceedings.

    2)Brief facts of the complaint are that the complainant’s Tata Tipper No.MH-06-9043 was insured with the OP for the period 7-6-06 to 6-6-07. On 20-01-07 the driver Raju took away the Tipper and did not return. On the direction of the JMFC II Karwar the police have investigated the matter and filed “C” final report. The complainant lodged claim with the OP on 10-3-07. The OP has not honored the claim. There is deficiency of service on the part of the OP and the OP is liable.

    3)Inspite of service the notice the OP failed to appear before the Forum. Hence he is set ex-parte.

    4)The complainant has filed affidavit and got marked Ex.C-1 to C-12.

    5)The point that arises for our consideration is: “Whether there is deficiency of service on the part of the OP” ?

    6)It is the contention of the counsel for the complainant that the complainant’s Tata Tipper No.MH-06-9043 was insured with the OP for the period 7-6-06 to 6-6-07. On 20-01-07 the driver Raju took away the Tipper and did not return. On the direction of the JMFC II Karwar the police have investigated the matter and filed “C” final report. The complainant lodged claim with the OP on 10-3-07. The OP has not honored the claim. There is deficiency of service on the part of the OP and the OP is liable.

    7)We have gone through the pleadings, affidavit and documents submitted by the complainant. Ex.C-1 shows that the tipper is insured with the OP. The certified copies at Ex C-3 to C-7 show that the tipper was stolen away. Ex.C-8 the legal notice is not replied by the OP. The contention of the complainant has not been challenged by the OP. The failure to attend the claim of the complainant is deficiency of service by the OP. The complainant has claimed Rs 2,25,000-00 towards total loss. The IDV is Rs.2,00,000-00. The incident took place 6 months after the policy is issued. The complainant is entitled for the IDV of Rs 2,00,000-00 after deductions of the depreciation amount, with interest @ 9% p.a. from 4-2-09 till realization and cost of Rs 1000-00.
    We pass the following order.
    ORDER
    The complaint is allowed
    The OP is directed to pay to the complainant the IDV of Rs.2,00,000-00 (Rs.Two lakh only) after deductions of the depreciation amount, with interest @ 9% p.a. from 4-2-2009 till realization and cost of Rs.1,000-00 (Rs.One thousand only).

  10. #25
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    Default

    Order delivered by Sri. Nazeer Ahmed U. Shaikh, Member
    1)This is a complaint praying to direct the OPs to pay Rs.80,000-00 on each certificate with 18% interest, damages of Rs.10,000-00, compensation of Rs.25,000-00 towards mental torture and cost to the complainant.

    2)Brief facts of the complaint are that on an application No. T 1358310, the OP-2 issued certificate No.T 0132728 under Registered Folio No.T 03323333, worth Rs.5,000-00 of 500 number of units on 15-4-93. On another application also the complainant has received certificate worth Rs 5000-00 of 500 units both the certificates under the LIC Mutual Fund sponsored Dhan Vikas (I) scheme, which was to be terminated on 15-4-1998. After the termination of the scheme the complainant requested the OPs to return with formidable amount + interest with Bonus Units. On 29-9-93 he wrote a letter seeking payment of maturity amount. But the OPs till today have not repaid the amount. There is deficiency of service by the OPs and they are liable.

    3)The OPs filed WS admitting that the complainant applied for the Dhan Vikas Scheme by investing Rs.5,000-00 under Certificate No.01382728. The scheme was converted as an open ended scheme as LIC MF Equity Fund- Growth plan. A paper notification was issued in the daily newspaper. A letter to the applicants was also made to opt either the dividend or the growth option. The complainant has not replied the same. So his earlier scheme was converted into LIC MF Equity fund growth plan. He has not invested any amount of Rs.5,000-00 in another scheme. As on 24-2-2009 the unit value was increased to Rs.13.5296 as against the issue price of Rs.10-00. The NAV (Net Asset Value) of the fund is market related and changes daily. Therefore the complainant is entitled for the value of the unit on which the market value of the unit depends. There is no deficiency of service by OPs. The OPs pray to dismiss the complaint with costs.

    4)Both the parties have filed their affidavits. The complainant has got marked Ex.C-1 to C-10 and the OP Ex.R-1

    5)The point that arises for our consideration is: “Whether there is deficiency of service on the part of the OPs?

    6)It is the contention of the complainant that he invested Rs.5,000-00 + Rs.5,000-00 in the LIC Mutual Fund sponsored Dhana Vikas (I) scheme on 15-4-1993. The scheme is terminated on 15-4-1998. After the termination of the scheme the complainant demanded back the invested money with interest. But the OP till today has not paid the same. There is deficiency of service by the OPs and they are liable.

    7)On the other hand the counsel for the OP vehemently urged that the complainant has invested only Rs.5000-00 but not Rs.10,000-00 in the LIC Mutual Fund sponsored Dhana Vikas (I) scheme which was later converted into LIC MF Equity Fund Growth Plan after giving paper publication and issuing notice to the applicants. The fact is within the knowledge of the complainant. The market value of the units changes every day. So, the complainant is entitled for the value of the unit on which the market value of the units depends. The complainant is not entitled for the claim amount. There is no deficiency of service by the OPs and they are not liable.

    8)We have gone through the pleadings, affidavits and documents submitted by the parties. It is a fact that the complainant has invested Rs.5000-00 in LIC Mutual Fund sponsored Dhana Vikas (I) scheme in the year 1983. It is also a fact that the said scheme was converted into LIC MF Equity fund growth plan. The OPs contend that while converting this scheme it was published in the daily newspapers and intimation was sent to the applicants. But the records produced by the OPs are not sufficient to hold that any notice was issued to the complainant to show that the conversion of the scheme was intimated to the complainant. The complainant also has not taken any action since 1998. He has not denied the contention of the OP that the value of the unit depends upon the market value on every day. The (NAV) Net Asset Value of the fund is market related and changes daily. So, the complainant is entitled only for the value of the unit on the day he claims value of the Units under certificate No.T 0132728. Since the complainant has not substantiated the claim for another certificate it shall be rejected. So in our view if we allow the complaint directing the OPs to pay to the complainant the value of the units on the day the complainant seeks the refund. Since there is no record produced by the OPs that the scheme was converted into another scheme the OPs are liable to pay compensation of Rs.1,000-00 to the complainant with cost of Rs.500-00
    We pass the following order.
    ORDER
    The complaint is allowed. The OPs are directed to pay to the complainant the value of the units under certificate No.T 0132728 on the day the complainant seeks refund and pay compensation of Rs.1,000-00 (Rs.One thousand only) and cost of Rs.500-00 (Rs. Five Hundred only). The other claim of the complainant is rejected.

  11. #26
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    COMPLAINANT


    BY-SRI. N.PRAKASH,
    SRI. H. M. RAJESH,
    ADVOCATES, BELLARY.
    //VS//
    SRI. MAINUDDIN,
    S/O LATE JATAKA BASHA SAB,
    D.NO.72, ABDUL SALAM STREET,
    COWL BAZAAR, BELLARY.
    RESPONDENTS



    BY-SRI. K. SUBBA RAO,
    ADVOCATE, BELLARY.
    FOR RESPONDENT No.2.

    RESPONDENT No.1: Exparte.

    1. THE DIVISIONAL MANAGER,
    ORIENTAL INSURNACE CO. LTD.,
    DIVISIONAL OFFICE, NO.10, 79,
    DWARAKA 2ND FLOOR,
    UTTAMAR @@@@HI SALAI,
    CHENNAI – 600 034.

    2. THE DIVISIONAL MANAGER,
    ORIENTAL INSURANCE CO.,
    1ST FLOOR, MAIN ROAD,
    PARVATHI NAGAR, BELLARY.



    //JUDGMENT//




    This is the complaint filed by Complainant Mainuddin against Respondent No.1 and 2 Oriental Insurance Co. Ltd. under Sec-12 of C.P. Act for to award an amount of Rs.99,635/- with interest @ 24% p.a. towards expenses incurred by him for repair of his damaged vehicle in the accident, to award an amount of Rs.1,00,000/- towards loss caused to him, to award an amount of Rs.50,000/- towards mental agony, inconvenience, frustration suffered by him and an amount of Rs.2,000/- towards cost of this litigation with other reliefs as deems fit to the circumstances of this case.

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

    He is the owner and R.C. holder of vehicle bearing No.KA-02/D-1818 comprehensively insured with Respondents Insurance Company met with an accident on 07/02/2008 at 4.30 a.m. near Banapura cross while Insurance Policy was in force and in the said accident his vehicle badly damaged. He informed same to the Police as well as Respondents Insurance Company. Thereafter, he got repaired the vehicle and filed his claim petition with necessary records, but Respondents shown their negligence in settling his claim even after oral and written requests and thereby both Respondents found guilty under deficiency in their services towards him. Hence, he filed this complaint for the reliefs as prayed in it.


    3. The Respondent No.1 is placed exparte. The Respondent No.2 appeared in this case through its Advocate filed Written Version by contending that, Insurance Policy issued by it by coverage of the Insurance of the said vehicle is not to the name of Complainant. The claim of Complainant for to repairs of the said vehicle is subject to the proof. Insurance Company appointed Surveyor who assessed the loss and damage as per his report. The Complainant not produced FIR, Charge Sheet, Panchanama, IMV report etc. for its verification. Accordingly, it was prayed by it to dismiss the complaint among other grounds.


    4. In view of the pleadings of parties, now the points that arise for our consideration and determination are that;

    1.
    Whether the Complainant proves that on 07/02/2008 on NH-63 near Banapura Cross his vehicle bearing No.KA-02/D-1818 comprehensively insured with Respondents Insurance Company met with an accident while comprehensive Insurance Policy was in force, his vehicle badly damaged, he informed the same to the Police as well as to the Respondents Insurance Company, thereafter he got repaired the said vehicle, filed claim petition with necessary records before the Respondents Insurance Company, but Respondents Insurance Company shown its negligence in settling his claim even after oral and written requests and thereby both Respondents found guilty under deficiency in their service towards him?


    2.
    Whether the Complainant is entitled for reliefs as prayed in this complaint?


    3.
    To what relief the Complainant is entitled for?
    //POINTS//












    5. Our findings on the above points are as under.

    Point No.1:
    In Affirmative.


    Point No.2:
    As discussed in detail in the body of this Judgment.


    Point No.3:
    In view of the findings on Point Nos.1 and 2, we pass the final order for the following;





    //REASONS//
    Point Nos.1 & 2: -


    6. In order to prove the facts involved in these two points, affidavit evidence of Complainant was filed, he was noted as P.W.1. Documents Ex.P.1 to Ex.P.11 are marked. No Written Arguments filed. On the other hand, affidavit evidence of Divisional Manger of Respondents Insurance Company was filed, he was noted as R.W.1 and documents Ex.R.1 to Ex.R.3 are marked. No written arguments filed.

    7. The Respondents Insurance company took number of grounds in its W.V. as well as in affidavit evidence of R.W.1 that, the Complainant not produced copy of FIR, IMV report, Panchanama, copy of D.L. etc. for its verification to enable it to consider the claim of him. Hence, his claim was not considered. At the time of arguments advanced by the learned advocate for Respondent No.2 one ground mainly stressed for consideration is that, the Insurance Policy Ex.R.2 of the said vehicle and its copy Ex.P.2 stands in the name of one Durgappa as he is the owner of the said vehicle. Present Complainant Mainuddin is not policy holder of said vehicle as on date of accident. There is no privity of contract in between Complainant and Respondents Insurance Company. The privity of contract existed in between the said Durgappa with Respondents Insurance Company as such, this Complainant is not entitled for claim in the light of documents Ex.R.2 and Ex.P.2.

    8. The learned advocate for Complainant submitted that, the present Complainant Mainuddin purchased the said vehicle from its previous owner Durgappa. Now R.C. stands in the name of Complainant. He intimated the same to the Respondents Insurance Company, but Insurance Company not effected the transfer of it in the Insurance Policy.

    9. In pursuance of the submissions made on both sides, we have referred Ex.R.1 and Ex.P.5 which are the copies of R.C. of said vehicle. It shows the name of Complainant Mainuddin as transfer in his name was effected in R.C. from 08/02/2007. The accident took place on 07/02/2008 that means as on the date of accident, the present Complainant Mainuddin was the owner of said vehicle. Now, Ex.R.2 original Insurance Policy of the said vehicle discloses the name of Durgappa as he is a policy holder of said vehicle.

    10. The question before us is that, what is the legal effect of such circumstances with regard to non-standing the name of Complainant in Insurance Policy Ex.R.2 as on the date of accident and what will be its effect on his claim petition vide Ex.P.3. In this regard, we have referred a ruling reported in 2008 (1) TAC 237 (NC) Shri Narayana Singh Vs. New India Assurance Co. Ltd. in which their lordships of Hon’ble National Commission discussed the case similar to the facts of this case and held that, the benefit under the Policy in force will automatically accrue to the new owner. The bonus or malus already applicable to the policy holder would continue until expiry of the Policy or cancellation of it. Bonus-malus will apply as per the new owner’s entitlement.

    11. In another ruling reported in 2009 (1) CPC (NC) 482 their lordship of Hon’ble National Commission held in such case that, transfer of Insurance Policy automatically transferred to the transferee after sale of vehicle – Complainant held entitled to the benefit under the Policy.
    12. The principles stated by their lordships in two rulings cited above are aptly applicable to the facts of this case. Admittedly, the Insurance Policy stands in the name of previous owner Durgappa at the time of accident. Transfer of vehicle effected in the name of present Complainant from Durgappa while Insurance Policy was in force. Before transfer of Insurance Policy in the name of present Complainant it met with an accident. The claim application filed by the Complainant before Respondents Insurance Company is maintainable as the Insurance Policy of the said vehicle automatically transfers in the name of present Complainant from previous owner Durgappa. Hence, the present Complainant is entitled to get benefit under the policy even though his name is not transferred in the Insurance Policy. Denial of claim of Complainant on this ground by the Respondents Insurance Company is nothing but a deficiency in their service towards the Complainant. Accordingly, we rejected the submission made by the learned advocate for Respondent No.2 in this regard. We accepted the submission made by the learned advocate for Complainant and thereby we answered Point No.1 in affirmative.


    13. As regards to the reliefs claimed by the Complainant, he claimed for to award an amount of Rs.99,635/- as he incurred expenses for repair of the said vehicle. In support of his claim, he submitted bills Ex.P.6 to Ex.P.11. In support of it, the learned advocate for Complainant relied on the ruling reported in I (2005) CPJ 285 National Insurance Co. Ltd. Vs. Lalta Ram. In this ruling, the lordship of Hon’ble Uttar Pradesh State Commission held as “Insurance – Assessment of loss - Vouchers produced are proof of expenditure, no further proof is necessary”.

    The Respondents Insurance Company placed reliance on Ex.R.3 which is a Surveyor’s report. As per the said report, Surveyor assessed net loss of Rs.35,500/-. In the circumstances stated above, we have referred a ruling reported in 2008 CTJ 580 (CP) (NCDRC) United India Insurance Co. Ltd. Vs. Smt. Maya, in which their lordship of Hon’ble National Commission held as Surveyor’s report should not be discarded summarily. It has to be given importance. It deserves as Surveyor is an independent and qualified person appointed under relevant provisions of Insurance Act.

    14. In view of the principles of said ruling, we are of the view that, placing reliance on documents Ex.P.6 to Ex.P.11 and ruling reported in I (2005) CPJ 285 is not proper as the ruling reported in 2008 CTJ 580 (CP) (NCDRC) is of the Hon’ble National Commission. Hence, placing reliance on report of Surveyor Ex.R.3 is proper and safe. Hence, we placed reliance on Surveyor’s report Ex.R.3 and took an amount of Rs.35,500/- as a net loss incurred by the Complainant towards repair of the said vehicle which is indemnifiable by the Respondents Insurance Company. Hence, the Complainant is entitled to recover an amount of Rs.35,500/- from the Respondents Insurance Company jointly and severally under this head.

    15. The second claim of him is for to award an amount of Rs.1,00,000/- towards loss sustained by him. We cannot find what kind of loss he sustained to claim such an huge amount of Rs.1,00,000/-. Absolutely there are no evidences in this regard. Accordingly, we have rejected this prayer of him.

    16. Another prayer of Complainant is for to award Rs.50,000/- towards mental agony, inconvenience, frustration suffered by him. There are no acceptable evidences for to assess such amount towards mental agony, inconvenience or frustration suffered by him. However, we have noticed the deficiency in service on the part of these Respondents towards Complainant, as such, we have granted an amount of Rs.3,000/- to the Complainant recoverable from the Respondent No.1 and 2 jointly and severally which is proper and reasonable amount to be granted under this head.

    17. The last of prayer of him is for to award an amount of Rs.2,000/- towards cost of this litigation. We feel that the amount mentioned by the Complainant is proper and reasonable amount as such, he is entitled to recover an amount of Rs.2,000/- towards cost of this litigation from the Respondent No.1 and 2 jointly and severally.


    18. Another prayer of him is for to award interest @ 24% p.a. from the date of accident till realization of full amount. Having regards to the facts and circumstances of this case, we are of the view that, granting interest @ 9% p.a. from the date of this complaint till realization of full amount is proper rate of interest. Accordingly, it is granted and thereby we answered Point No.2 .


    Point No.3: -

    19. In view of findings on Point Nos.1 & 2, we pass the following;
    //ORDER//
    The complaint filed by the Complainant is partly allowed with cost.


    The Complainant is entitled to recover total sum of Rs.40,500/- (Rupees Forty Thousand Five Hundred only) including cost from the Respondent No.1 and 2 jointly and severally.

    The Complainant is entitled to recover interest @ 9% p.a. on Rs.40,500/- from the date of this complaint i.e. 01/01/2009 till realization of full amount from the Respondent No.1 and 2 jointly and severally.


    The Respondent No.1 and 2 jointly and severally are hereby granted two months time from the date of this Judgment for to make the payment of total sum and interest as stated above to the Complainant.

  12. #27
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    Sri. B.G. Prakash, S/o. Govindaiah,
    R/o. Ramanahalli,
    CHIKMAGALUR CITY.
    (By Sri. Hareesh Singatagere, Adv.)
    V/s
    OPPONENTS:
    1. The Manager,
    M/s. Oriental Insurance Co., Ltd.,
    Dwaraka, II Floor,
    79, Uttamar @@@@hi Salai,
    CHENNAI – 600 034.

    2. The Manager,
    M/s. Oriental Insurance Co., Ltd.,
    T.A.P.C.M.S. Complex,
    Near Hanumanthappa Circle,
    CHIKMAGALUR CITY.


    (By Sri T.R. Harish, Adv.)

    Written by the President:

    - ::: O R D E R ::: -

    1. The complainant has filed this complaint u/s 12 of the Consumer Protection Act against the opponents for the deficiency of service in non settling the own damage claim and prays for compensation of Rs.5,000/- towards mental agony along with court costs as detailed in the complaint.
    2. The facts of the case in brief are as follows:-
    The complainant is an owner of Heavy Goods Vehicle bearing Registration No.KA-18-A-5678 and insured with the opponents under package policy bearing No.412000/31/2007/11901, which is valid from 20.09.2006 to 19.09.2007. Such being the case, the vehicle met with an accident on 06.06.2007 and got damaged. The said fact was intimated to the 1st opponent and submitted the claim form with necessary documents and original bills. But they have not settled the claim of the complainant. The complainant has spent Rs.1,30,000/- towards the repair of the said vehicle.
    3. In this regard, the complainant has issued a legal notice to the 1st opponent. Even after the receipt of the legal notice, they have not settled the claim of the complainant, due to which the opponents have rendered deficiency of service. Hence, this complaint for the above referred reliefs.
    4. After the service of the notice, the opponents have appeared through their counsel and filed version contending that the vehicle was insured with them vide policy No.412000/31/2007/ 11901 and any liability if any is governed by the terms and conditions of the policy. After the accident they have appointed an I.R.D.E.A. approved Surveyor Mr. S.H. Shivashankar of Chitradurga, who has conducted a spot survey and prepared report dtd.14.06.2007. Thereafter, another Surveyor was appointed for final survey and he has submitted a final survey report on 14.07.2007 assessing the loss caused at Rs.59,000/- net liability assessed. The vehicle was 1999 model one and it met with an accident on 06.06.2007. 40% depreciation has been deducted on the parts and 50% depreciation has been deducted on the rubber parts in accordance with the terms and conditions of the insurance policy.
    5. Further the opponents at Chennai has processed this claim and effected a settlement for Rs.38,154/- and sent a cheque through No.28543 dtd.15.12.2008 drawn in favour of M/s. Sri Ram Transport Finance Company Ltd., to which the company vehicle was hypothecated and the said financier has submitted a clean discharge voucher dtd.15.12.2008 and they have accepted a settlement in full and final. As such the complainant is not entitled to receive any amount from this opponent. The further denied that the complainant has spent Rs.1,30,000/- towards the repair of the vehicle and contended that there is no deficiency of service. Hence, prays for the dismissal of the complaint.
    6. The complainant has filed his affidavit evidence as P.W.1 along with the documents and the same have been marked as Exs.P1 to P4.
    7. The opponent has also filed affidavit evidence as R.W.1 along with the documents and the same have been marked as Exs.R1 to R22.
    8. We heard the arguments advanced by both the parties’ counsels.
    9. Now, the points that arise for consideration of this Forum are as follows:-

    i) Whether there is any deficiency in service on the part of
    the opponents?

    ii) If so, whether the complainant is entitled to the
    reliefs as sought?
    iii) What Order?
    10. Our findings on the above points are as follows:-

    i) Point No.1: In the Affirmative

    ii) Point No.2: In the Affirmative

    iii) Point No.3: See, as per order below

    - ::: R E A S O N S ::: -
    11. Point Nos.1 & 2: There is no dispute with respect to the complainant’s vehicle insured with the opponent and also no dispute with respect to the accident took place on 06.06.2007. The dispute raised by the complainant is that inspite of issuance of legal notice also they have not settled the claim.
    12. On contrary, the opponents have taken contention that two surveyors were appointed for spot survey and to assess the loss and to submit the final survey and they have received a final survey report dtd.14.07.2007 and assessed the loss to the tune of Rs.59,000/-. Subsequently, they have issued a cheque for Rs.38,154/- by processing the claim at Chennai and they have issued a cheque to the financier of the complainant and he has accepted as full and final settlement. Hence, they submit that there is no deficiency of service.
    13. On perusal of the survey report, which is marked as Ex.R20, we noticed that after deductions as stated in version he has shown Rs.59,000/- is payable to the complainant, whereas they have issued only Rs.38,154/- against to the assessed amount. The opponents have not given a just reason to reduce the amount shown in the final survey report and we also consider that there is no base for making scrutiny of the expenditures made by the complainant parallel to the survey report.
    14. The opponents have produced Ex.R22 to show that they have made scrutiny of the claim settlement. But we consider after the submission of the final survey report that they cannot reduce the amount by making separate scrutiny. Therefore paying the less amount against to the final survey report will amounts to deficiency of service and we noted that they have taken nearly two years to settle the claim of the complainant. Therefore, there is also an abnormal delay in settling the claim of the complainant.
    15. Therefore, the complainant is entitled to get an amount of Rs.59,000/- as assessed by the Surveyor excluding the payment is already paid, he is entitled to get Rs.20,846/-. For the deficiency of service in non settling the claim of the complainant as per the final survey report, the opponent is liable to pay Rs.5,000/- as a compensation and the complainant is also entitled to get Rs.2,000/- for the delay caused in settling the claim along with Rs.1,000/- towards the costs of this complaint. For the above said reasons, we answer the above point Nos.1 and 2 in the affirmative.
    16. Point No.3: In view of our findings on above points the complaint filed by the complainant has to be allowed. In the result we pass the following order.

    - :::O R D E R::: -
    1. The complaint filed by the complainant is partly allowed.
    2. The opponents are hereby directed to pay an amount of Rs.20,846/- being the balance amount as per the final survey report submitted by their Surveyor towards the repair charges of the vehicle.
    3. The opponents are also hereby directed to pay compensation Rs.5,000/- towards the deficiency of service and to pay Rs.2,000/- towards the delay caused in settling the claim of the complainant along with costs of Rs.1,000/- towards the litigation expenses, within one month from the date of this order, failing which the amount shall carry interest at the rate of 9% P.A. from the date of default till realisation.

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    ORDER


    COMPLAINT FILED: 27.11.2008 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 09th APRIL 2009 PRESENT :- SRI. A.M. BENNUR PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI. A. MUNIYAPPA MEMBER COMPLAINT NO. 2581/2008

    COMPLAINANT M/s. Reddy Veeranna Constructions Pvt. Ltd., A company registered under the provisions of the Companies Act, 1956, Classic Court, II Floor, 9/1, Richmond Road, Bangalore – 560 025. Represented by its Assistant General Manager Finance Mr. S. Ramanath. Advocate (Unnikrishnan. M)

    V/s.

    OPPOSITE PARTIES

    1. The Oriental Insurance Co., Ltd., Divisional Office No.2, 2903, 1st Floor, New Muslim Hostel Complex, Opp: Fire Brigade, 1st Main, Saraswathipuram, Mysore – 570 009.

    2. The Oriental Insurance Co., Ltd., Regional Office, 44/45, Leo Shopping Complex, Residency Road, Bangalore. Advocate (Manoj Kumar. M.R.)


    O R D E R

    This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay Rs.13,15,035/- towards the cost of repairs of vehicle No. KA-03-D-188 and compensation of Rs.6,00,000/- and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant being the R.C. Owner of the vehicle bearing No. KA-03-D-188 got insured the said vehicle for a period from 29.10.2007 to 28.10.2008 through OP. OP collected the necessary premium and issued the policy noting the IDV as Rs.17,65,000/-. On 19.11.2007 the said vehicle met with an accident, thereby severe damages were caused to the said vehicle. Then immediately complainant under the intimation to the OP left the said vehicle to M/s. Jaika Automobiles the authorized service agency for Tata Motors. The vehicle was inspected by the surveyor of Jagadalpur attached to OP office on 04.12.2007. The said M/s. Jaika Automobiles submitted the revised estimation after dismantling to the tune of Rs.13,15,035/- the cost of the repairs, earlier estimation was for Rs.6,43,740/-. Complainant made repeated requests and demands to OP to treat the said claim as total loss and release the required amount for repairs, but it went in vain. Complainant even requested the OP to release atleast 75% of the estimated cost. Again there was no response. On the other hand OP came forward to release only Rs.5,00,000/- and odd which is not acceptable to the complainant. Complainant paid Rs.2,00,000/- to the said Jaika Automobiles to get the vehicle repaired as early as possible, but OP did not extend its helping hand as contemplated in terms of policy conditions. The vehicle is lying in the workshop for more than one year.

    It is all because of the carelessness and negligence on the part of the OP. Complainant for no fault of his, is made to suffer both mental agony and financial loss. Thus complainant felt the deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.


    2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the delay if any with regard to the repairs of the said vehicle is mainly because of non-cooperation by the complainant. The demand to release 75% of second estimation which is for Rs.13,15,035/- is arbitrary. No final repair bills are produced for settling the claim. The surveyor has not examined the said vehicle. On the receipt of the intimation OP surveyor examined the said vehicle and assessed the estimated liability to the tune of Rs.7,40,000/-. Under the circumstances OP agreed to release 75% of the same that is to the tune of Rs.5,55,000/-, complainant is not accepting the same. So no fault lies with the OP. Unless the vehicle is completely repaired, made road worthy and inspected by the concerned surveyor and if he opines that in order to get repair the said vehicle Rs.13,00,000/- and odd is needed, then only OP liability lies. Mere production of estimation is no proof of actual expenses incurred for the repairs of the said vehicle. Among these grounds, OP prayed for the dismissal of the complaint.


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


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


    5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order. R E A S O N S 6. At the outset it is not at dispute that the complainant is the R.C. Owner of the vehicle bearing No. KA-03-D-188 and OP covered the insurance of the said vehicle which was valid from 29.10.2007 to 28.10.2008. It is also not at dispute that the said vehicle met with an accident within 16 days from the date of purchase that is 19.11.2007, thereby severe damages were caused to the vehicle. Then complainant left the said vehicle to M/s. Jaika Automobiles an authorized service agency for Tata Motors. The surveyor of Jagadalpur examined the said damages and gave his report. It is also not at dispute that the first estimation that was given for the repairs was Rs.6,43,740/-. Now it is the contention of the complainant that after the dismantling of the said vehicle the actual damages will be assessed and after dismantling the said automobiles gave a revised estimation to the tune of Rs.13,15,035/-.



    7. Complainant wants to base his claim only on the strength of the revised estimation that is given by the M/s. Jaika Automobiles, there is no final survey report submitted by the technically qualified person in that regard. The fact that the said vehicle may be repaired is also not at dispute. So the claim of the complainant to treat his prayer as total loss does not find place. As against this it is contended by the OP that their surveyor has given the interim report stating that estimated liability will be to the tune of Rs.7,40,000/- and against the assessed estimated liability they are prepared to release 75% of the same that is Rs.5,55,000/-, but the complainant is not prepared to accept the same.



    8. On the perusal of the complaint and the evidence complainant wants that the 75% of the revised estimation is to be released to them. As already observed by us, revised estimation is not a conclusive proof the actual expenses incurred towards the repairs of the said vehicle. Further complainant states that he has paid Rs.2,00,000/- to the said automobiles to get the vehicle repaired as early as possible. But Automobiles want 75% of the revised estimation. OP having retained the said claim of the complainant for all these months, naturally caused inconvenience to the complainant, in our view delay in settling the said claim amounts to deficiency in service. No final survey report is produced in this complaint. We also find some substance in the defence of the OP that unless the said vehicle made road worthy and it is subjected to the examination of the surveyor to assess the total expenditure incurred for repairs, OP cannot settle the claim.



    9. Complainant being a big construction company by this time they would have made arrangements to get vehicle repaired as early as possible if they are really in need of the service of the said vehicle. The insistence on the part of the complainant to release 75% of revised estimation, in our view amounts to arbitrary claim. Complainant has got the equally efficacious remedy to redress the grievance. When the OP is ready to release Rs.5,55,000/- by this time complainant would have accepted the same as an interim settlement and got repaired the vehicle from the said automobiles. Including Rs.2,00,000/- that is paid by the complainant a lump sum amount is paid to M/s. Jaika Automobiles which is nearing to the 75% of the revised estimation. With all that complainant has not shown the interest.



    10. Having considered the facts and circumstances of the case, when OP is ready to settle the claim, it would have been more fair on the part of the complainant to get repair the said vehicle as early as possible submit the final repair bills, subject the said vehicle for inspection of a surveyor, then get the report for the needful. We do not find force in the allegations of the complainant that because of the non-cooperation and hostile attitude of the OP the said vehicle is lying idle at the said workshop.




    11. Hence for these reasons we find as the dispute is with regard to the payment of 75% of the so called estimated repair costs, if complainant minds they can sort out that dispute amicably with OP. As already observed by us, OP has turned down the demand of the complainant to release 75% of revised estimation and it is prepared to pay 75% of the interim report given by the surveyor. Under such circumstances we find the justice will be met by directing the complainant to collect the interim payment and see their vehicle is repaired as early as possible, then make the final claim. With these observations we answer point nos.1 and 2 accordingly and proceed to pass the following: O R D E R The complaint is allowed in part. OP is directed to release Rs.5,55,000/- to the M/s. Jaika Automobiles as interim settlement of the claim and settle the whole claim after the impugned vehicle is completely repaired and made road worthy. It is further ordered that vehicle be subjected to the inspection/examination of the technically qualified surveyor. On the receipt of his report and final repair bills settle the claim as per policy terms and conditions. In view of the nature of dispute no order as to costs. This order is to be complied within 2 months from the date of its communication.

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    Default Oriental Insurance

    V.Ramadevi
    W/o R.Parameshwaran,
    A/a 40 yrs, R/o C/o T.Manjunath,
    No.3, 7th Main, 13th Cross,
    J.P.Nagar, I Phase,
    Bangalore – 560 078.
    …. Complainant.
    V/s

    The Oriental Insurance Company Limited,
    Regional Office, Leo Shopping Complex,
    Residency Road Cross, Bangalore – 560 026
    Rept. By its regional Manager,


    …. Opposite Party

    -: ORDER:-
    This complaint is for a direction to the Opposite Party to pay damages of Rs.1,50,000/- with interest at 18% Per Annum from the date of accident till the date of payment on the following grounds:-
    The complainant who is the owner of TATA ACE goods carrying vehicle bearing No.KA-08-2756 had got the same insured with Opposite Party for the period from 04/08/2007 to 03/08/2008 covering the risk for a sum of Rs.2,00,000/-. On 25/10/2007 when the said vehicle driven by its driver Sri.Harish was going towards Bangarpet Town from Kolar, at about 5.00 p.m. near DIMBA Gate there was a head on collusion between the said vehicle and a goods Tempo bearing No.KA-03-A-2609. As a result, the vehicle in question was extensively damaged beyond repairs. The accident was immediately reported to the Opposite Party, who inspected the vehicle and advised to tow the vehicle to the authorized showroom. Accordingly the vehicle was towed to Prerana Motors, Bangalore. After repairs, the vehicle was inspected by the surveyor and officials of the Opposite Party who collected all the necessary police documents, driving license and the bills from the complainant. The damage to the vehicle was estimated at Rs.1,50,000/- and the complainant paid the same. After submitting all the relevant documents to the Opposite party for reimbursement of the damage charges, she received the letter dated:23/09/2008 intimating that her claim has been repudiated as the driver had no valid driving license at the time of accident. The driver had driving license to drive light motor vehicle and there is no need or necessity to take separate license to drive the TATA ACE goods carrier which is a L.G.V. The laden weight of the vehicle is 1,555 KGs and un-laden weight is 805 KGs. and the vehicle is classified as L.G.V. The complainant has purchased the vehicle by taking hand loans from her friends and relatives to earn her livelihood. Hence, the complaint.



    2. In the version, the contention of the Opposite Party is as under:-


    The vehicle in question which is light commercial vehicle was insured for the period from 04/08/2007 to 03/08/2008. The policy is subject to various terms, conditions, exceptions, limitations and the legal liability of the insurer is governed by the provisions of the policy of insurance. The intimation regarding the accident was given to the Opposite Party on 12/11/2007. Soon thereafter the claim form was issued and the same was submitted by the complainant along with the quotation towards repairs. A surveyor was deputed to inspect the vehicle and he submitted the report on 09/11/2007. On receipt of the surveyor report, the complainant was called upon to furnish the vehicle document like RC, DL, and FC for verification and the same were submitted only on 31/05/2008 by the financier of the complainant. After verification of the documents submitted by the complainant and considering the surveyor report, the claim of the complainant was repudiated as per the letter dated:23/09/2008. The contention of the complainant in Para-3 of the complaint that the driver had driving license to drive the light motor vehicle and there is no need or necessity to take a separate driving license to drive the TATA ASC goods carrier is totally false and based on assumptions. The complainant had failed to furnish the driving license of the driver. Therefore they had to obtain the same by appointing an investigator. The driver had no driving license to drive the insured vehicle which is a goods carrying commercial vehicle. The claim was repudiated on the ground that the driver who was driving the vehicle at the time of accident was not having an effective and valid driving license. The driver had a license to drive Light Motor Vehicle (N/T) w.e.f. 25/01/2002 to 24/01/2022. A license to drive transport vehicle is effective only for three years. The insured vehicle being a goods carrying commercial vehicle, the driver of the complainant ought to have obtained an endorsement in the license to drive the insured vehicle. In the circumstances, the repudiation of the claim will not amount to deficiency in service on the part of the Opposite Party and as such the complaint is liable to be dismissed.


    3.In support of the respective contention, both parties have filed affidavits and have produced documents. We have heard the arguments on both side.


    4. The points for consideration are:-
    1.Whether in the facts and circumstances of the case, the repudiation of the claim of the complainant by the Opposite Party is justified?
    2.Whether the complainant entitled to the relief prayed for in the complaint?
    05. Our finds are:-
    Point No(1) : In the Affirmative
    Point No(2) : In the Negative, for the
    Following:-

    -: REASONS:-


    06. In Para-2 of the complaint, the complainant herself has admitted that the vehicle in question is a goods carrying vehicle. From what is stated in Para-3 of the complaint it is also clear that Mr.Harish who was driving the vehicle in question at the time of accident had the driving license to drive the Light Motor Vehicle. Therefore, he had no license to drive a transport vehicle or a goods carrying commercial vehicle. According to the complainant since the vehicle in question is also a Light Motor Vehicle as its laden weight is 1,555 KGs and the un-laden weight is 805 KGs, there was no necessity for the driver to obtain separate license to drive a goods carrying vehicle which is a light goods vehicle. No doubt in the ‘B’ register extract pertaining to the vehicle in question, the laden weight of the vehicle is recorded as 1555 KGs and the un-laden weight is recorded as 805 KGs and therefore the vehicle falls within the description of Light Motor Vehicle. When admittedly the vehicle is a transport vehicle meant for carrying the goods, the question is whether a person holding license to drive Light Motor Vehicle is also entitled to drive a Transport Vehicle or goods carrying vehicle?. To substantiate the contention that a person holding license to drive Light Motor Vehicle is entitled to drive a Transport vehicle if the same is Light Motor Vehicle, the learned counsel for the complainant relied upon the decision reported IN 2008 ACJ 721 IN THE CASE OF NATIONAL INSURANCE COMPANY LIMITED V/S ANNAPPA IRAPPA NESARIA decided on 22/01/2008. That was also a case where, a person having license to drive Light Motor Vehicle, had driven a goods carrying vehicle, which met with an accident on 09/02/1999. Considering the amendment of clause-e of Rule-14 of the Central Motor Vehicle rules w.e.f. 28/03/2001 the Hon’ble Supreme Court held that after the amendment, the transport vehicle has now been substituted for medium goods vehicle and heavy goods vehicle, the Light Motor Vehicle continued at the relevant point of time to cover both light passenger carriage vehicle and light goods carriage vehicle and since the amendment carried out in the rules have prospective operation the driver who had a valid license to drive a Light Motor Vehicle was authorized to drive a light goods vehicle as well.

    Relying upon the above decision, the learned counsel for the complainant submitted that though the driver of the vehicle in question had license to drive a Light Motor Vehicle as on the date of the accident, since the vehicle in question is also a Light Motor vehicle though a goods carriage the driver was entitled and authorized to drive such type of vehicle and as such the repudiation of the claim by the Opposite Party is not justified. As against this, the learned counsel for the Opposite Party relied upon the decision of the Hon’ble Supreme Court in Civil Appeal No1102/2009 in the case of ORIENTAL INSURANCE COMPNAY LIMITED V/S ANGAD KOL & ORS. decided on 18/02/2009 and contended that unless the driver is specifically authorized by an endorsement in the driving license to drive a transport vehicle or goods carriage, he cannot drive such type of vehicle only holding license to drive Light Motor Vehicle.

    In the above decision referring to the provisions of Section 3, 9 & 10 of the Motor Vehicle’s Act, the Hon’ble Supreme Court has held that the distinction between a Light Motor Vehicle and Transport Vehicle is therefore evident, a transport vehicle may be Light Motor Vehicle, but for the purpose of driving the same a distinct licence is required to be obtained. In the above decision, the Hon’ble Supreme Court has also considered the decision in the case of NATIONAL INSURANCE COMPANY LIMITED V/S ANNAPPA IRAPPA NESARIA (2008 ACJ 721) relied upon by the learned counsel for the complainant and has held that a person having driving license to drive Light Motor Vehicle only is not entitled to drive light passenger carriage vehicle and light goods carriage vehicle, unless he is specifically authorized to drive such type of vehicle.

    In the decision reported in AIR-20008 S.C. 2266 in the case of NEW INDIA ASSURANCE COMPANY LIMITED V/S ROSHANBEN RAHEMANSHA FAKIR AND ANOTHER decided on 121/05/2008 also the Hon’ble Supreme Court has taken the same view. Therefore, in view of the latest decision of the Hon’ble Supreme court referred to above, we have to uphold the contention of the learned counsel for the Opposite Party that the driver of the vehicle in question had only license to drive Light Motor Vehicle and therefore he was not authorized to drive a goods carriage transport vehicle and as such the insured has committed breach of the terms and conditions of the insurance policy and therefore the Opposite Party is not liable to reimburse the repair charges to the complainant.


    In the above circumstances, we hold that the repudiation of the claim by the Opposite Party is justified and the same will not amount to deficiency in service and as such the complainant is not entitled to the relief prayed for. In the result, we pass the following:-

    -:ORDER:-

    • The complaint is DISMISSED. No order as to costs.

  15. #30
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    Default Oriental Insurance

    COMPLAINT NO: 2723 OF 2008 M. Narayan S/o. Late Muniswamy Naidu The Proprietor M/s. Prabhu Engineering Works No. 425, 11th Cross, 4th Phase Peenya Industrial Area Bangalore 560 058 Complainant


    V/S


    United India Insurance Co. Ltd. No. 109, SSI Area, Rajajinagar 5th Block Next to Dasashram and Opp. St. Ann’s High School Dr. Rajkumar Road Bangalore 560 010 by its Branch Manager Opposite Party ORDER By the President Sri. S.S. Nagarale

    This is a complaint filed under section 12 of the Consumer Protection Act 1986. The facts of the case are that complainant is owner of Maruthi Omni Van bearing Registration No. KA 02 MB 7029. Vehicle was insured with the opposite party. The effective date of policy was from 29.05.2006 to 28.05.2007.
    It is the case of the complainant that the vehicle was stolen on the intervening night of 01.11.2006 and 02.11.2006 from his residence. Complainant’s son immediately informed Srirampura Police Station regarding the theft of vehicle. Police conducted spot mahazar. Thereafter, complainant had informed same to the opposite party over telephone. The concerned officers of the opposite party advised the complainant to lodge police complaint in the jurisdictional police station. Vehicle was not traced. Complaint was lodged on 21.12.2006. Case was registered in Crime No. 427/2006 for an offence under Sec. 379 of I.P.C. On 22.12.2006 son of complainant Prabhu informed the opposite party about lodging of police complaint. Police submitted ‘C’ report to the VII ACMM, Bangalore. Complainant submitted all necessary papers to opposite party for processing of claim. Legal notice issued to opposite party to settle the claim. Hence, the complaint.



    2. Notice issued to opposite party. Opposite party put in appearance through advocate. Defence version filed stating that the complainant has written letter to opposite party intimating theft of the vehicle on 22.12.2006 after lapse of 50 days from the date of incident. Opposite party has repudiated the claim on the ground that as per policy conditions notice shall be given to the insurer immediately upon the occurrence of loss or damage to the vehicle, failing which claim will not be processed. FIR was also lodged after lapse of 49 days. The reasons for delay are not satisfactory. Hence, claim of the complainant was repudiated by letter dated 01.02.2007.


    3. Affidavit Evidences are filed.


    4. Arguments are heard.


    5. The points for consideration are: “1. Whether repudiation of the claim by opposite party is justified? 2. Whether the complainant is entitled for the declared value of the vehicle from the opposite party?”


    6. Almost all facts are admitted. There is no dispute that the complainant had insured his vehicle with the opposite party on payment of premium amount of Rs. 3,252/-. The period of insurance was from 29.05.2006 to 28.05.2007. Copy of policy is produced. The declared value of vehicle is Rs. 1,19,000/-. The complainant has produced copy of complaint given to the police. Complaint has been lodged on 21.12.2006 to the police. Copy of FIR has been produced. Copy of ‘C’ report submitted by police has been produced. The complainant has produced letter addressed to opposite party dated 11.01.2007. The said letter has been acknowledged by opposite party on 12.01.2007 by putting seal. In the said letter the complainant has submitted that he has been out of station on the ground that his family member was admitted in AVS hospital in Kottekal, Kerala State. Therefore, he had not informed the opposite party company about the theft of vehicle at the earliest date. No doubt the theft had taken place on 01.11.2006. The police complaint had been lodged on 21.12.2006 i.e. after more than 49 days of the occurrence.

    The complainant had informed the opposite party thereafter on 11.01.2007. There is delay of more than 70 days to inform the opposite party about the incident. As per the policy condition the complainant should have given intimation to the opposite party immediately upon occurrence of loss or damage to the vehicle. The term ‘immediately’ mentioned in the policy condition has not been defined any where. The complainant submitted that there was delay in informing the incident to the opposite party on the ground that one of his family member was admitted to hospital in Kerala State for treatment and he was out of station.

    Therefore, there is delay in informing the matter to the opposite party. However, it has been argued by the learned advocate for complainant that the matter was informed to the opposite party over telephone on the next day of theft. The learned advocate also submitted that complainant’s son Prabhu immediately informed the police regarding theft of the vehicle. But there is delay in filing formal complaint to the opposite party.

    The opposite party could have condoned the delay in informing the matter and processing the claim. Since, there is no definition or specific dates are not mentioned as to when the matter should be informed of the theft, word ‘immediately’ may be interpreted depending upon the facts and circumstances of the case. Discretion is given to the opposite party company to admit the claim taking into consideration of the explanation and reasons furnished by the complainant. The complainant submitted that he was out of station and he had been to Kerala State since one of the family member was admitted to the hospital for treatment and he had gone to Kerala to lookafter the ailing member of the family.

    Therefore, there was some delay in filing complaint in writing to the opposite party company. Since almost all the facts are the admitted only point to repudiate the claim is that the complainant failed to inform the occurrence to the opposite party company immediately. As stated above since there is no definition of the word ‘immediately’ the said term can be liberally interpreted in favour of the consumer. If two opinions are possible in a given situation an opinion which is favourable to the consumer shall have to be given effect and benefits should be given to the consumer rather than to the opposite party.

    Consumer Protection Act is a social and benevolent legislation intended to protect better interests of the consumers. An interpretation which is favourable to the consumer requires to be given for doing justice to the consumer.
    Therefore, taking into consideration all the facts and circumstances of the case it would be just, fair and reasonable to direct the opposite party company to pay Rs. 1,19,000/- Declared value of the vehicle to the complainant.



    ORDER


    7. The Complaint is allowed. The opposite party is directed to pay Rs. 1,19,000/- (IDV) to the complainant within 30 days from the date of this order. In the event of non-compliance of the order within 30 days the above amount carries interest at 10% p.a. from the date of this order till payment / realization. 8. Send the copy of this Order to both the parties free of costs immediately.

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